136 Conn. App. 398
Conn. App. Ct.2012Background
- Bertotti robbed a New Alliance Bank in Wethersfield in 2004; convicted of second-degree robbery (53a-135(a)(2)) and third-degree larceny (53a-124(a)(2)]; sentenced to 12 years to serve plus 2 years’ special parole; no direct appeal filed; sought sentence review without relief; filed a habeas petition alleging ineffective assistance of trial counsel, Claud Chong.
- Habeas court credited Chong’s testimony and denied the petition and the petition for certification to appeal.
- Petitioner claimed counsel’s performance included rejecting a favorable eight-year plea offer, failing to perfect a direct appeal, and failing to introduce intoxication evidence through a social worker.
- Court conducted Lozada-based review of certification and merits; reviewed credibility findings; preserved standard that habeas relief is limited if issues are not debatable.
- Court ultimately concluded petitioner’s claims were not persuasive and denied certification and habeas relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the habeas court abused its discretion in denying certification to appeal | Bertotti argues denial of certification was an abuse of discretion | Court properly applied Lozada standards; issues not debatable | No abuse; certification denied |
| Whether Chong was ineffective for rejecting the eight-year plea offer | Chong objectively advised against the offer and erred | Petitioner rejected the offer; court credited Chong's testimony | Not ineffective; rejection not prejudicial |
| Whether Chong failed to perfect a direct appeal | Chong failed to file a direct appeal as advised | Petitioner chose not to pursue an appeal; Chong advised correctly | No ineffective assistance; petitioner decided against appeal |
| Whether Chong failed to present intoxication evidence or investigate an intoxication defense | Osborne’s testimony and intoxication theory should have been pursued | Intoxication not a defense to intent; record lacked basis for additional investigation | Not ineffective; no prejudice; intoxication not a viable defense under record |
| Whether the petition for habeas relief should have been granted on the merits | Underlying claims merit review | Claims lack credibility and fail Lozada criteria | Appeal and petition denied |
Key Cases Cited
- Simms v. Warden, 230 Conn. 608 (1994) (abuse of discretion standard for granting certification; Lozada framework)
- Johnson v. Commissioner of Correction, 285 Conn. 556 (2008) (Lozada-based criteria for certifying appeals)
- Lozada v. Deeds, 498 U.S. 430 (1991) (test for determining ineffective-assistance claims on collateral review)
- Taylor v. Commissioner of Correction, 284 Conn. 433 (2007) (review of underlying claims to determine frivolousness of appeal)
- Mock v. Commissioner of Correction, 115 Conn. App. 99 (2009) (standard for prejudice and effectiveness of counsel on habeas review)
- Copeland v. Warden, 26 Conn.App. 10 (1991) (claims not raised in habeas court cannot be raised on appeal)