Franko v. Commissioner of Correction, 139 A.3d 798

In 2010 Lawrence Franko was convicted by a jury of second-degree kidnapping and sentenced to 16 years plus special parole; his direct appeal was affirmed.
Facts at trial: Franko forced the victim into her car, struck her head against the dashboard, held her head down while driving on the Merritt Parkway, drove to a rest area, grabbed her as she tried to flee, and the victim escaped; Franko fled and later surrendered.
Franko filed multiple habeas petitions alleging, among other claims, that trial counsel (Attorneys Becker and Moore) rendered ineffective assistance by not requesting jury instructions on lesser included offenses (unlawful restraint in the first or second degree, or third-degree assault).
At the habeas trial Franko testified and presented an expert (Attorney McKay) who said counsel should have requested lesser-included instructions; the prosecutor from the criminal trial also testified. Trial counsel did not testify.
The habeas court found counsel’s omission could be reasonable trial strategy (an "all-or-nothing" approach to pursue outright acquittal) and that the state presented strong evidence supporting kidnapping; it denied relief. Franko obtained certification to appeal; the appellate court affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether failure to request lesser-included instructions constituted deficient performance under Strickland	Franko: evidence supported lesser offenses and counsel’s omission was not reasonable strategy; counsel should have requested unlawful restraint instructions	Commissioner: decision not to request was a tactical all‑or‑nothing strategy reasonably exercised by counsel	Held: No deficient performance — counsel’s decision plausibly strategic and within wide range of reasonable professional judgment
Whether omission prejudiced the defense (Strickland prejudice prong)	Franko: withholding the instruction likely cost him a lesser conviction instead of kidnapping	Commissioner: evidence of kidnapping was strong; no reasonable probability of different outcome even if instruction given	Held: No prejudice — state presented strong evidence that restraint was not merely incidental to assault and supported kidnapping conviction

Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong test for ineffective assistance: deficient performance and prejudice)
State v. Salamon, 287 Conn. 509 (2008) (kidnapping requires intent to prevent liberation beyond restraint incidental to another crime)
State v. Colon, 272 Conn. 106 (2004) (no constitutional right to instruction on every lesser included offense)
Fair v. Warden, 211 Conn. 398 (1989) (declining lesser‑included instructions can be reasonable strategy; no per se ineffectiveness)
Reeves v. Commissioner of Correction, 119 Conn. App. 852 (2009) (decision to forgo lesser‑included instruction is a strategic choice for counsel)
State v. Franko, 142 Conn. App. 451 (2013) (appellate opinion summarizing facts of the underlying criminal trial)