144 Conn. App. 68
Conn. App. Ct.2013Background
- Kennedy was charged in 2004 for head injuries to his infant son, resulting in a guilty plea (Alford) to assault in the first degree and risk of injury to a child with a detailed sentencing range.
- Plea agreement allowed a maximum of 25 years with suspended portions and probation; actual sentence was 20 years to serve, with concurrent terms and additional five years probation.
- In 2009, Kennedy filed an amended habeas petition alleging ineffective assistance by trial counsel Moscowitz, including failure to interview exculpatory witnesses, research similar sentences, and inform about nolles on unrelated charges.
- Habeas court conducted a trial on the merits in 2010 and denied the petition; the court later denied certification to appeal.
- On appeal, Kennedy contends Moscowitz failed to inform him of the 20–25 year range and failed to research comparable shaken baby cases; the issue centers on Strickland-based deficient performance and prejudice.
- The court held the habeas court’s findings credible, found no deficient performance, and affirmed denial of certification to appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of certification to appeal was an abuse of discretion | Kennedy argues Moscowitz was ineffective for plea advice deficits. | Moscowitz adequately advised about possible sentence within the plea and there was no evidence of deficient performance. | No abuse; trial counsel adequately advised. |
| Whether Moskowitz’ failure to research similar sentences was deficient performance | Kennedy asserts lack of research into comparable shaken baby cases misled his plea. | Counsel had no legal obligation to research comparable sentences; no prejudice shown. | Not deficient; no prejudice established. |
| Whether entry of nolles in unrelated charges caused prejudice | Nolles on unrelated charges could have affected strategy or outcome. | Nolles were nonprejudicial since petitioner was not prosecuted on those charges. | No prejudice from nolles. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (Supreme Court 1984) (two-pronged deficient performance and prejudice standard for ineffective assistance)
- Hill v. Lockhart, 474 U.S. 62 (Supreme Court 1985) (prejudice analysis in plea-based ineffective assistance cases)
- Pulley v. Harris, 465 U.S. 37 (Supreme Court 1984) (no constitutional right to proportionality review in sentencing)
- State v. Rupar, 293 Conn. 489 (Conn. 2009) (no liberty interest in a particular proportionality of sentence)
- Hall v. Commissioner of Correction, 124 Conn. App. 778 (Conn. App. 2010) (complexity of prejudice analysis in guilty-plea ineffective assistance)
- Crawley v. Commissioner of Correction, 141 Conn. App. 660 (Conn. App. 2013) (abuse-of-discretion standard for habeas petition certification rulings)