208 Conn.App. 635
Conn. App. Ct.2021Background
- Petitioner Kyle Freitag shot two men on October 30, 2012; one victim died and the other was paralyzed. He later pleaded guilty to murder and first‑degree assault on January 14, 2015 after initially rejecting a plea offer at the courthouse and then changing his mind during the court’s canvass.
- Before the plea, defense counsel Francis O’Reilly met with Freitag and his parents; Freitag testified O’Reilly told them, in absolute terms, that codefendant Terrance Baxter would not testify for the defense.
- Baxter (and his counsel Francis DiScala) testified he had been willing to testify, and DiScala denied ever telling O’Reilly Baxter would not testify. Freitag later learned Baxter would have testified and claimed he would have insisted on trial rather than plead.
- Norman Pattis replaced O’Reilly for sentencing (April 7, 2015); he sought mitigation and argued for the minimum sentence, but the court imposed 30 years plus 10 years special parole.
- Freitag brought a two‑count habeas petition alleging (1) O’Reilly rendered ineffective assistance by misrepresenting Baxter’s willingness to testify and by failing to advise properly about defenses, and (2) Pattis was ineffective for failing to move to withdraw the guilty pleas (Practice Book § 39‑27) and for inadequate mitigation at sentencing. The habeas court denied relief; Freitag appealed.
- The appellate court reversed in part and remanded for a new habeas trial on the claims that O’Reilly misrepresented Baxter’s willingness and failed to advise re: defenses, and that Pattis failed to move to withdraw the pleas; it affirmed the denial as to the sentencing‑mitigation claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether O’Reilly misrepresented Baxter’s willingness to testify, causing an uninformed plea | Freitag: O’Reilly told him Baxter would not testify and that induced an involuntary plea | Commissioner: Habeas court reasonably found O’Reilly made a nondeficient, educated assessment that Baxter was unlikely to testify | Court: Habeas court made a clearly erroneous implicit finding on what O’Reilly told Freitag; reversed and remanded for new habeas trial on this claim |
| Whether O’Reilly failed to advise properly about available defenses (e.g., self‑defense) | Freitag: Poor advice about witness availability and defenses led to uninformed plea | Respondent: Counsel’s advice fell within reasonable professional judgment; no deficient performance | Court: Intertwined with witness‑availability error; reversed and remanded for new habeas trial on this claim |
| Whether Pattis was ineffective for not moving to withdraw the guilty pleas under Practice Book § 39‑27 | Freitag: Pattis should have moved to withdraw pleas because pleas were involuntary due to O’Reilly’s deficiencies; motion would have sought trial | Respondent: Habeas court found no basis to withdraw and that Pattis reasonably declined because the state insisted on murder charge | Court: Given reversal as to O’Reilly, habeas court’s reasons are untenable or irrelevant; reversed and remanded for new habeas trial on failure‑to‑move claim |
| Whether Pattis rendered ineffective assistance by failing to present adequate mitigation at sentencing | Freitag: Additional/contextual mitigation (e.g., gang threats) would likely have reduced sentence | Respondent: Pattis presented substantial mitigation; sentencing court considered it and still imposed sentence for the conduct | Court: Affirmed—record shows adequate mitigation presented and no reasonable probability of lesser sentence |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (two‑prong test for ineffective assistance of counsel)
- Hill v. Lockhart, 474 U.S. 52 (applying Strickland to guilty‑plea challenges)
- Carraway v. Commissioner of Correction, 144 Conn. App. 461 (voluntariness and counsel competence at plea)
- Humble v. Commissioner of Correction, 180 Conn. App. 697 (standard of review and Strickland/Hill framework in habeas appeals)
- Miller v. Commissioner of Correction, 176 Conn. App. 616 (remand to habeas court appropriate where performance shown but prejudice unresolved)
- Salmon v. Commissioner of Correction, 178 Conn. App. 695 (new habeas trial required when habeas court makes clearly erroneous factual finding affecting credibility)