Opinion
No. CV06 4001035 S
April 4, 2011
MEMORANDUM OF DECISION
The petitioner, Daniel Ouellette, alleges in Count Two of his Second Amended Petition for a writ of habeas corpus, filed on December 8, 2010, that he was denied the effective assistance of counsel at the trial of his criminal case, docket number CR-04-0217327, in violation of both the United States and Connecticut Constitutions. He further alleges in Count Three that he was denied effective assistance of counsel in connection with his appeal of his conviction. He asks that the judgment of conviction be vacated and the matter be remanded to the trial court for further proceedings.
The petitioner also alleged in Count One of his Second Amended Petition that his due process rights to a fair trial were violated because the state's attorney misrepresented to the jury during the petitioner's trial the state's agreement with the petitioner's co-defendant, who testified against the petitioner. Because this claim was fully addressed and resolved by the Appellate Court and the Supreme Court, State v. Ouellette, 110 Conn.App. 401, 955 A.2d 582 (2008), aff'd, 295 Conn. 173, 989 A.2d 1048 (2010), the court granted the respondent's motion to dismiss Count One prior to the start of evidence.
The petitioner's claim of ineffective assistance of trial counsel focuses on three areas. First, the petitioner claims that trial counsel did not properly object to or seek relief relating to one allegedly improper question asked of the complaining witness during re-direct examination. Second, the petitioner claims that trial counsel failed to take appropriate steps to show that the petitioner's DNA was not on the knife used in commission of the crime that resulted in the petitioner's conviction. Third, the petitioner claims that trial counsel failed to move for a speedy trial even though the petitioner requested that he do so. In Count Three, the petitioner alleges that appellate counsel were constitutionally ineffective because they failed to properly preserve, and in effect abandoned, the petitioner's claim that the trial court should have conducted a Floyd hearing as to whether there was some undisclosed agreement between the state and the co-defendant who testified against the petitioner.
The matter came to trial before the court on December 13, 2010. The petitioner presented three witnesses: Scott Murphy, the state's attorney who prosecuted both the petitioner and his co-defendant; the petitioner; and the petitioner's co-defendant, Pamela Levesque. The respondent presented two witnesses: petitioner's trial counsel, attorney Daniel Dilzer; and appellate counsel, Richard Reeve. The court also received as exhibits: the transcripts of the trial in the underlying criminal case (Pet. Ex. 1-2); the briefs and records from the petitioner's appeals to the Appellate and Supreme Courts (Pet. Ex. 3-11); and two letters from trial counsel to the petitioner (Pet. Ex. 13-14).
BACKGROUND
The petitioner was the defendant in a criminal case, docket number CR04-0217327, in the Judicial District of New Britain, in which he was charged with and convicted of robbery in the first degree, conspiracy to commit robbery in the first degree, larceny in the second degree, conspiracy to commit larceny in the second degree, assault in the second degree, larceny in the fifth degree, and conspiracy to commit larceny in the fifth degree. The petitioner was represented at the trial court level by attorney Daniel Dilzer.
As set forth by the Supreme Court, the jury could have reasonably found the following facts. "On August 14, 2004, Carmella Interlgi was loading groceries into her car when she was approached by Pamela Levesque. Levesque produced a knife and demanded the victim's purse. Although the victim resisted and suffered two cuts to her fingers, Levesque was able to reach inside the purse and remove the victim's wallet. Levesque then fled to a nearby 1986 Chevrolet Monte Carlo, which was being operated by the defendant. She and the defendant then left the scene by car.
"Shortly after the robbery, the defendant drove to the Wal-Mart store on Farmington Avenue in Bristol. Casey Keil, a loss prevention associate at Wal-Mart, observed the defendant stop in front of the store and Levesque exit the car and place a single credit card in her rear pocket. This conduct aroused Keil's suspicions, and he followed her into the store, where she proceeded directly to the photography department and quickly chose a Sony camcorder. As Keil was observing Levesque, another Wal-Mart employee alerted him that the defendant had entered the store. Keil observed the defendant covertly watching Levesque purchase the camcorder, and, as Levesque completed the transaction, Keil observed the defendant heading toward the store's exit.
"Keil went to the cash register and compared the signature on the credit card slip with the name of the cardholder and, finding that they did not match, stopped Levesque to inquire further. Levesque stated that the credit card belonged to a relative. Keil escorted her to the back office, and another associate determined that the credit card was stolen.
"Keil then went outside and located the defendant in a parked car, with the engine running. Upon Keil's request, the defendant accompanied Keil back into the store, where the Bristol police department was summoned. The victim thereafter identified Levesque as the person responsible for stealing her wallet and assaulting her. The police discovered the victim's wallet in the car that the defendant was operating." State v. Ouellette, 295 Conn. 173, 177-78, 989 A.2d 1048 (2010).
The jury found the petitioner guilty on all charges. Thereafter, the trial court denied the petitioner's motion for a new trial, rendered judgments in accordance with the verdicts, and sentenced the petitioner. The judgment was affirmed by the Appellate Court. Thereafter, the Supreme Court granted the petitioner's petition for certification and affirmed the decision of the Appellate Court. The petitioner was represented on both appeals by attorneys Richard Reeve and Michael Sheehan. Additional facts will be discussed as necessary.
LEGAL STANDARD
To succeed in his bid for a writ of habeas corpus, the petitioner must prove that either his trial counsel or appellate counsel was ineffective. "A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient . . . Second, the defendant must show that the deficient performance prejudiced the defense . . . Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984).
"The first component, generally referred to as the performance prong, requires that the petitioner show that counsel's representation fell below an objective standard of reasonableness . . . In Strickland, the United States Supreme Court held that judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a petitioner to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the petitioner must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment . . ." Henderson v. Commissioner of Correction, 80 Conn.App. 499, 504-05, 835 A.2d 1036 (2003), cert. denied, 267 Conn. 918, 841 A.2d 1190 (2004). Counsels' decision not to call certain witnesses or offer certain evidence for strategic reasons is entitled to this strong presumption of reasonableness. Grant v. Commissioner of Corrections, 103 Conn.App. 366, 368, 928 A.2d 1245, cert. denied, 284 Conn. 921, 933 A.2d 723 (2007).
When the claim is that trial counsel failed to conduct an adequate investigation, the analysis is no different. "Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, supra, 466 U.S. 690-91.
As to the prejudice prong, "an error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment . . . The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution." Strickland v. Washington, supra, 691-92. Consequently, the petitioner must affirmatively show that his counsel's performance had an adverse impact on the defense. Id., 693. Put another way, in order to meet the prejudice prong the petitioner must prove that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., 694.
Our Supreme Court recently refined the prejudice standard as it relates to claims of ineffective assistance of appellate counsel. In Small v. Commissioner of Corrections, 286 Conn. 707, 720-22, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008), the court determined that the proper question is not whether there is a reasonable probability that a new trial would lead to a different outcome but for appellate counsel's error, but instead is whether there is "a reasonable probability that but for his counsel's error, [the petitioner] would have prevailed on his appeal." (Citation omitted; internal quotation marks omitted.) Id., 720. "[T]o determine whether a habeas petitioner had a reasonable probability of prevailing on appeal, a reviewing court necessarily analyzes the merits of the underlying claimed error in accordance with the appropriate appellate standard for measuring harm." Id., 722. The court emphasized that "the task before [the court] is not to conclude definitively whether the petitioner, on appeal, would have prevailed . . . Rather, the task before [the court] is to determine, under Strickland, whether there is a reasonable probability that the petitioner would have prevailed on appeal." (Emphasis in original) Id., 731.
DISCUSSION A. Ineffective Assistance of Trial Counsel
The petitioner asserts three grounds as the bases for his claim that trial counsel was ineffective. The first is that Attorney Dilzer neither objected to an improper question asked by Attorney Murphy during re-direct examination of the victim, nor sought appropriate relief from the court after the question was asked and answered. The following additional facts are relevant to this claim. During cross-examination of the victim the following exchange took place.
"Q. Okay. But in the car that the lady left in, did you see the driver?
"A. A brief glance.
"Q. Okay. But you couldn't identify the driver of the car?
"A. I don't think so.
"Q. Okay. And you weren't able to give a description of the driver. That's correct. Right?
"A. No.
"Q. Okay and it happened very fast.
"A. And I was petrified.
"Q. Yes, ma'am. Yes, ma'am. And you don't know whether or not the driver of the car actually saw what occurred.
"A. No, but I assumed he did.
"Q. But you don't know.
"A. No.
"Q. Did the lady who was running away from you when she was running away from you, did she yell anything to the driver or anybody?
"A. No, I didn't hear anything.
"Q. You didn't hear anything. Okay."
The cross-examination of the victim ended at this point. Attorney Murphy then conducted a very brief re-direct examination that consisted of the following.
"Q. Mrs. Interlgi, you said that the person who was in the driver's seat of the car that this woman got into that you assumed that he saw what was going on with the struggle, could you tell the jury why you assume that?
"A. Because I'm sure they had it all planned between them.
MR. DILZER: Objection, Your Honor.
"THE COURT: That's sustained, and it's not responsive to the question so it is stricken. You may proceed.
"MR. MURPHY: Thank you. I have no further questions, Your Honor."
The petitioner claims that Attorney Dilzer should have objected to Attorney Murphy's question before it was answered. Alternatively, he argues that Attorney Dilzer should have asked for a mistrial or an immediate instruction to the jury that the question was improper and that the witness's answer should not be considered by them.
Attorney Dilzer testified that he did not object to the question because he did not believe it was improper. The court agrees. The witness might have had a very valid reason for assuming the petitioner saw the robbery occurring. For example, she may have seen him looking in her direction. It was not until the witness actually answered the question that it became clear that her assumption was the product not of observation, but of surmise. At that point, Attorney Dilzer timely and properly objected, and the court struck the testimony.
Attorney Dilzer also testified that he saw no basis to move for a mistrial based on this answer. In addition, he testified that he did not want to draw undue attention to the witness's answer by asking that the jury be excused and asking for a remedy he did not think the court would grant. Under the circumstances, the court finds that Attorney Dilzer's decision not to ask for a mistrial was a reasonable strategic decision. Given the prompt manner in which he objected to the witness's answer and the fact that the trial court immediately struck the testimony, any potential prejudice from the answer was cured, and the court was unlikely to grant a mistrial. Moving for one could have done more harm than good by drawing further attention to the answer.
Finally, the petitioner's claim that Attorney Dilzer should have asked the trial court to instruct the jury that the question was improper and that the answer should play no part in its deliberations is without merit. As noted above, there was nothing improper about the question. And, the court did in fact tell the jury not to consider the answer in its deliberations by ordering it stricken. Both in its preliminary and final instructions, the court told the jury that it must disregard and could not consider testimony that it ordered stricken. Jurors are presumed to follow the instructions of the court, and there is no evidence here that they did not follow the trial court's instructions not to consider stricken testimony.
For the reasons set forth above, the petitioner has not proved that Attorney Dilzer's performance was deficient as to the questioning of the victim. To the contrary, as soon as Attorney Dilzer heard the objectionable answer he objected and the testimony was stricken. Nothing more could be asked of competent counsel under these circumstances.
In addition, the petitioner has failed to show any prejudice. Attorney Dilzer's cross-examination of the victim established that she did not know who the driver was or what he knew about the robbery. There is no reasonable probability that the result of the trial would have been different if she had not answered the one question on re-direct. In fact, her answer only confirmed that she had no knowledge about the defendant's involvement in the robbery, and she was really doing nothing more than guessing. The fact that Attorney Dilzer objected to the answer and the court ordered it stricken only served to confirm to the jury that the victim was speculating about the defendant's involvement.
The second ground raised by the petitioner regarding trial counsel is that Attorney Dilzer failed to take reasonable steps to make sure the knife used by Levesque in the robbery was preserved and tested for the petitioner's DNA or fingerprints. The petitioner claims that had it been tested, his DNA would not have been found on the knife, supporting his theory that Levesque acted alone and without the petitioner's knowledge. He further argues that Attorney Dilzer did not effectively cross-examine witnesses about the fact that the knife was not tested or the fact that the state lost or destroyed it after the petitioner's arrest, but prior to trial. Finally, he claims that Attorney Dilzer was ineffective because he failed to effectively argue these same points in closing.
The following additional facts are relevant to the resolution of these claims. At trial, Levesque testified that when she and the petitioner arrived at Shaw's supermarket the petitioner told her to grab the knife that was in the car and use that to commit the robbery. She also identified the knife as belonging to the petitioner. She took the knife, left the car and used the knife while committing the robbery.
At trial in this matter, Levesque admitted that she might have gotten the knife from her father's house. She also could not recall how the knife got into the car. She testified though that the knife was always in the petitioner's care and that he was the one who told her to take it to use in the robbery. She also reaffirmed her testimony from the petitioner's criminal trial that she and the petitioner had discussed, prior to the robbery, using the knife to scare their victim.
The petitioner did not testify at his criminal trial. At the trial in this matter, he testified that the knife belonged to Levesque; she kept it in her purse; and he never touched it.
Attorney Dilzer testified that he made a decision that he did not want to have the knife tested for DNA. There was no question that it was Levesque, not the petitioner, who used the knife in the robbery. The petitioner's criminal culpability did not depend on him owning or having handled the knife, but on agreeing to the robbery and participating in it in some way. There was no question that the petitioner drove Levesque to and from the robbery. Thus, if he knew about and agreed to the robbery, he was liable regardless of his relationship to the knife. Attorney Dilzer's view was that testing the knife could therefore only be detrimental. If the petitioner's DNA was not on the knife, he was still liable as the driver of the car. If his DNA was on the knife the state would have an even more direct link between the petitioner and the crime. Similarly, Attorney Dilzer testified that he did not ask witnesses about the knife or argue about it in closing because it was not relevant to the defense that the petitioner had no knowledge that Levesque was going to commit the robbery. Again, his focus was on undermining the idea that the petitioner had any knowledge about Levesque's plans, not just that he never touched the weapon she used.
While another attorney might have decided it was worthwhile to take the risk and have the knife tested or worthwhile to focus on ownership of the knife, the petitioner has not proven that Attorney Dilzer's approach to these issues reflects an unreasonable trial strategy. His cross-examination of the witnesses followed a consistent theme of showing that none of the witnesses, other than Levesque, could say with any degree of certainty that the petitioner was part of the robbery. As to Levesque, Attorney Dilzer cross-examined her thoroughly, attacking her credibility by pointing out that she had lied to and stolen from family members in the past, hoped to get a more lenient sentence by testifying against the petitioner, and immediately after the robbery did not implicate the petitioner in the crime. Given that the state did not have to tie the petitioner to the knife to prove its case, it was entirely reasonable for Attorney Dilzer to choose the route he did, and ignore the knife. Consequently, the petitioner has failed to meet the first Strickland prong on these issues.
Nor has he proven any prejudice. For the reasons set forth above, proving that the petitioner never touched the knife would not have created a reasonable probability that the outcome of the trial would have been different. He still drove Levesque to and from the robbery and was in Wal-Mart watching her when she attempted to buy the camcorder with the stolen credit card. He also kept his car close by to Levesque with the engine running while waiting for her at Shaw's and Wal-Mart. The evidence also showed that neither the petitioner nor Levesque had any money to purchase anything from Shaw's, leaving little explanation as to why they went there other than to commit the robbery. Attorney Dilzer's decisions not to have the knife tested, question witnesses about it, or argue about it in closing in no way undermine the court's confidence in the outcome of the trial.
Because nobody knows the whereabout of the knife, it is impossible to know whether testing the knife would have been helpful to the petitioner.
Finally, the petitioner alleges that Attorney Dilzer was ineffective because he failed to request a speedy trial. The petitioner offered no evidence in support of this claim. The evidence presented by the respondent showed that when the petitioner did raise the issue of filing a speedy trial motion, Attorney Dilzer responded in writing telling the petitioner that he was not yet eligible for such a motion. The petitioner's trial started approximately nine months later. There was no evidence that the petitioner made another request in the interim. Nor was there any evidence to suggest that Attorney Dilzer's eligibility conclusion was in error. Furthermore, Attorney Dilzer testified that because this case involved a number of eyewitnesses there was a strategic benefit to delaying the start of a trial in the hopes that some of those witnesses would no longer be available. Based on the facts of this case, such a conclusion was reasonable. Finally, the petitioner presented no evidence of any prejudice resulting from the failure to file a motion for a speedy trial. Consequently, this claim is rejected.
For all the foregoing reasons, the petitioner has failed to prove any of the claims set forth in Count One of the Second Amended Petition.
B. Ineffective Assistance of Appellate Counsel
The petitioner claims in Count Three that Attorneys Reeve and Sheehan were ineffective because they failed to preserve, in petitioner's appeal to the Supreme Court, the petitioner's claim that he had the right to a Floyd hearing regarding the terms of any agreement between the state and Levesque. The following additional facts are relevant to this claim. On direct examination at the petitioner's criminal trial, Levesque testified that she had pled guilty to charges relating to the robbery, and in exchange for her plea, the state had agreed that it would recommend to the judge at the time of her sentencing that she receive a sentence of twenty years, suspended after ten years in prison, followed by five years of probation. The agreement further provided that her attorney would have the right to argue for a lesser sentence. She further testified that under the agreement if she testified truthfully at the petitioner's trial, that information would be brought to the attention of her sentencing judge. She testified that no other promises had been made to her.
The petitioner also alleges in Count Three that appellate counsel "did not raise the substantive constitutional issues set forth in Count One." The petitioner offered no evidence in support of this allegation. Furthermore, it is difficult to understand the allegation in light of the thorough treatment both the Appellate and Supreme Courts gave to the precise constitutional issues raised in Count One. In fact, the Supreme Court thought the issues so significant that it invoked its "inherent authority to safeguard the administration of justice" to direct sentencing courts to inquire into the nature of any plea agreement between the state and a witness and what representations were made about the agreement during the trial at which the witness testified. State v. Ouellette, supra, 295 Conn., 191-92. Thus, contrary to the petitioner's bald assertion, it is clear that Attorneys Reeve and Sheehan raised the substantive issues set forth in Count One, and no further discussion of this allegation is warranted.
On cross-examination, she admitted that she hoped her testimony against the petitioner would be taken into account by the court when she was sentenced. She also acknowledged that if she admitted to acting alone in the robbery she would have nobody to testify against, nor anyone to whom she could shift the blame for the robbery.
During closing arguments, the state reiterated that it intended to recommend a sentence of ten years in jail, followed by five years of probation. In response, Attorney Dilzer argued that Levesque only testified against the petitioner because she wanted a deal and as little jail time as possible. In rebuttal, the state admitted that Levesque hoped that she would get credit for testifying truthfully, but pointed out that the sentencing decision rested in the hands of the judge, not the state or Levesque.
Three months after testifying for the state at the petitioner's trial, and approximately two weeks after the petitioner was sentenced, Levesque appeared for sentencing on her guilty plea. The Supreme Court, in its opinion on the petitioner's direct appeal described the events at the sentencing hearing. "[T]he state set forth the facts of the case and several aggravating factors, including the advanced age of the victim, Levesque's use of a knife in the incident, and Levesque's role in planning and executing the robbery. The state's attorney then informed the court of Levesque's cooperation in testifying against the defendant and concluded: 'I'd ask Your Honor to consider a sentence, taking into account all of these factors, the serious nature of the crime, the fact that an older person was the victim of the crime, and also that [Levesque] pled guilty and also cooperated and testified, as I said, truthfully and candidly during the course of the trial of the [defendant]. I indicated that the cap was twenty years . . . suspended after ten [years] with five years probation. I would leave it up to Your Honor as to what you feel the appropriate sentence [is], given all the relevant factors.' The court sentenced Levesque to twelve years imprisonment, execution suspended after three years, with four years probation." State v. Ouellette, supra, 295 Conn., 180.
"Regarding Levesque's cooperation, the state's attorney noted: 'Since the time of the arrest, [Levesque], Your Honor, did plead guilty, which I think is an admission of wrongdoing and, obviously, to her credit, and she also did testify at the trial of [the defendant]. She gave testimony that I believed to be truthful testimony and I think the jury, based on their verdict of guilty on all charges, also found the testimony . . . to be truthful and credible.
"And while the state had other evidence implicating the [defendant], obviously the testimony of [Levesque] was very important to the state in gaining the conviction of the second person involved in this, [the defendant].'"
After Levesque was sentenced, the petitioner appealed his conviction and argued, inter alia, that his constitutional rights to due process and a fair trial had been violated because the state misrepresented the true nature of its agreement with Levesque. In particular, he argued that the state, contrary to what it told the jury, did not "recommend" a sentence of twenty years, suspended after ten years in prison. He argued that the state's attorneys comments during Levesque's sentencing reflected a more favorable implicit understanding between the state and Levesque.
In support of this claim, the petitioner filed a motion for rectification and enlargement of the trial court record. In particular, the petitioner asked the trial court to: (1) include transcripts from Levesque's plea and sentencing proceedings; and (2) conduct a Floyd hearing at which it could solicit testimony and other evidence as to the nature of the agreement between Levesque and the state, and whether the state misrepresented the terms of that agreement to the petitioner's jury. The trial court granted the motion as to the transcripts, but denied the request for a Floyd hearing. The petitioner then filed with the Appellate Court a motion for review of the trial court's denial. The Appellate Court granted review, but denied the relief requested.
In State v. Floyd 253 Conn. 700, 756 A.2d 799 (2000), the Supreme Court held that a defendant may be entitled to an evidentiary hearing when, subsequent to trial, the defendant learns that the state may have withheld exculpatory evidence regarding consideration given to a witness in exchange for testimony or cooperation. Id., 732. "In order to warrant such a hearing, a defendant must produce prima facie evidence, direct or circumstantial, of a Brady violation unascertainable at trial. The trial court's decision with respect to whether to hold a Floyd hearing is reviewable by a motion for review pursuant to Practice Book § 66-7 . . ." (Citations omitted; internal quotation marks omitted). State v. Ouellette, supra, 295 Conn. 182, n. 7. The standard of review for the denial of such a hearing is abuse of discretion. State v. Ouellette, supra, 110 Conn.App. 409, n. 6.
The motion for review having been denied, the petitioner argued his claim regarding Levesque based on the transcripts of the petitioner's trial and Levesque's sentencing. The Appellate Court rejected the petitioner's constitutional claims regarding Levesque's testimony. In doing so, it stated that the trial court's ruling on the motion for rectification and enlargement was "a central part of the record." State v. Ouellette, 110 Conn.App. 409. It quoted the trial court as concluding that "'the state's attorney effectively relayed to [the trial court] the recommendation of the state by referring to the 'cap' of twenty years suspended after ten years. He did not state to [Levesque's sentencing court] that a lesser sentence should be imposed . . . The fact that the state's attorney did not use the specific words, 'I recommend,' does not change the court's conclusion.'" Id., 409-10. Although the Appellate Court found the different manners in which the state conveyed its agreement with Levesque "disturbing," it concluded, while citing to Floyd, "that there is no evidence that the prosecution improperly withheld exculpatory evidence regarding the credibility of Levesque." Id.
After the Appellate Court affirmed the petitioner's conviction, the Supreme Court granted his petition for certification to appeal limited to the question: "In circumstances where the prosecutor adduced evidence that the state had entered into a plea agreement with its key witness pursuant to which the state would seek a particular sentence but then, after the witness' trial testimony, the state recommended a different more lenient sentence for the witness, did the Appellate Court improperly refuse to remand the case to the trial court for an evidentiary hearing on the issue of whether the state's conduct violated the defendant's constitutional rights?" State v. Ouellette, supra, 295 Conn., 183. However, after reviewing the record, the court determined that the petitioner had waived, and effectively abandoned, his claim for an evidentiary hearing by not appealing the Appellate Court's denial of his motion for review. Id., 183-84. Thus, the court reformulated the certified question to "whether the Appellate Court properly concluded that the record did not establish that the state improperly had withheld impeachment evidence regarding Levesque's credibility." Id., 185.
The court affirmed the decision of the Appellate Court finding that "[a]lthough the record reveals this discrepancy [in how the agreement with Levesque was presented], it does not adequately establish why the state's attorney failed to recommend the maximum sentence at the sentencing hearing and is therefore insufficient to determine whether the disparity arose from mere negligence or from the more nefarious root of an undisclosed plea agreement." Id., 188. In reaching this conclusion the court noted the importance of Floyd hearings for developing the necessary record to analyze a claim like the petitioner's. It also noted that "as set forth previously in the text of this opimon, the trial court's denial of the defendant's motion for rectification and enlargement is not properly before us, and, therefore, we do not opine on the propriety of that decision." Id., 188, n. 9. The court went on to note that "courts should ordinarily grant Floyd hearings when a defendant can present prima facie evidence, direct or circumstantial, of a Brady violation unascertainable at the time of trial . . . [F]avorable consideration provided to a witness after testimony for the state may, in some cases, raise the inference of such an agreement." Id.
The petitioner now argues that the Supreme Court's decision shows the ineffectiveness of appellate counsel. He argues that his appeal was rejected because he did not have a sufficient record showing that the state had an implicit, undisclosed agreement with Levesque, and he did not have a sufficient record because appellate counsel failed to properly preserve for review by the Supreme Court his right to a Floyd hearing. Attorney Reeve testified regarding this issue. He testified that he thought that he had done everything necessary to preserve the issue for appeal to the Supreme Court. It was never his intention to abandon the claim that the petitioner was entitled to a Floyd hearing. He thought then, and still thinks now, that the issue had merit. He also testified that, in hindsight, it was a mistake not to brief the Floyd issue beyond filing the motion for review.
Of course, the question for the court is not whether, in hindsight, appellate counsel erred. Instead, the court must determine whether, at the time they were handling the appeal, counsel made a mistake that rendered their representation not reasonably competent. Even if the court determines that the representation was not reasonably competent, the petitioner is only entitled to relief if counsel's error prejudiced the petitioner. Because, for the reasons set forth below, the court finds that the petitioner has failed to prove any prejudice, the court need not address the first prong of Strickland.
As set forth above, in order to prove prejudice at the appellate level, the petitioner must prove that but for counsel's error there is a reasonable probability that the result of his appeal would have been different. In this case, such an analysis requires two steps. First, the petitioner must prove that had counsel properly preserved the Floyd issue there is a reasonable probability that the Supreme Court would have ordered the hearing. Second, he must prove that had the Floyd hearing taken place sufficient evidence would have been adduced that would have created a reasonable probability that he would succeed on the merits of his constitutional claims on appeal. Recognizing this burden, the petitioner called Attorney Murphy as a witness for the sole purpose of asking him about the state's agreement with Levesque and why he said what he did during her sentencing hearing.
Assuming that there is a reasonable probability that the Supreme Court would have ordered the Floyd hearing if the issue had been presented to it, the court finds that the petitioner has failed to prove any prejudice from the lack of such a hearing. Despite an opportunity to essentially conduct a Floyd hearing during the habeas trial, the petitioner was unable to produce any evidence of an undisclosed agreement between the state and Levesque. Attorney Murphy testified that in his experience as a prosecutor for thirty-three years, when he tells a judge the "cap" from which the defendant can argue for less he is telling the judge his recommendation. He testified that there was no other agreement with Levesque other than what was represented at the petitioner's criminal trial and what he told the court when Levesque was sentenced. He admitted that he may have been careless in the words he used during Levesque's sentencing, but steadfastly maintained throughout his testimony that there were no side agreements with Levesque or her counsel, and he never discussed with anyone changing the agreement or his intended remarks to the court based on her testimony. The petitioner presented no evidence to the contrary, even though he had also subpoenaed Levesque to testify and could have asked her about the agreement.
The trial court similarly found that a "cap" is in effect the state's recommended sentence when it denied the petitioner's request for a Floyd hearing.
Given the lack of any evidence of an undisclosed agreement between the state and Levesque, there is no reasonable probability that the petitioner would have prevailed on his appeal. The petitioner has failed to present any evidence that the record before the Appellate and Supreme Courts might reasonably have been different with a Floyd hearing. To the contrary, the evidence presented in this habeas proceeding proved that the record would be the same in all material respects. Any discrepancy in how the state's agreement with Levesque was presented appears, based on the evidence, to be the product of carelessness and nothing more nefarious. As the Supreme Court stated, a court "will not lightly presume the state's attorney misrepresented the true nature of the state's agreement with [the witness]." (Citation omitted; internal quotation marks omitted.) State v. Ouellette, supra, 295 Conn. 173, 189. Here, despite the opportunity to present evidence to the contrary to establish prejudice, the petitioner could produce none. Consequently, the court was presented with no evidence that undermines its confidence in the outcome of the appeal. The petitioner's claim of ineffectiveness of appellate counsel in Count Three is therefore rejected.
CONCLUSION
For all the foregoing reasons, the petition is DENIED.