Lopez v. Commissioner of Correction
64 A.3d 334
Conn. App. Ct.2013Background
- In 2003 the victim, an eight-year-old girl, rode in the petitioner’s car and alleged that the petitioner touched her sexual area and placed his private parts inside her underwear during the ride.
- The petitioner was charged with attempt to commit sexual assault in the first degree and two counts of risk of injury to a child; a jury later acquitted on the first charge but convicted on the two risk-of-injury counts.
- In October 2005 the petitioner, through trial counsel, filed a petition for a new trial premised on the victim’s recantation after trial and a motion for judgment of acquittal.
- At sentencing on January 19, 2006, the court denied the new-trial petition and sentenced the petitioner to 12 years with eight years to be served, suspended execution, and ten years of probation.
- The habeas petition (January 26, 2011) asserted ineffective assistance of trial counsel (DeMarco), ineffective appellate counsel, and actual innocence; the habeas court denied it, and on appeal the petitioner challenged only DeMarco’s effectiveness.
- The appellate court affirmed, holding that there was no demonstrable evidence that DeMarco discussed or pursued a renewed petition for a new trial, and that conjecture cannot satisfy the Strickland standard; the record lacked proof of deficient performance and prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DeMarco’s failure to pursue a renewed petition for a new trial or advise on it was deficient performance | Lopez contends DeMarco failed to advance a posttrial petition, depriving him of a second opportunity. | DeMarco did not have a duty to pursue civil posttrial relief; no evidence showed discussions or advice to file a new trial. | No; record lacking proof of wrongdoing or prejudice; petition denied. |
Key Cases Cited
- Calabrese v. Commissioner of Correction, 88 Conn. App. 144, 868 A.2d 787 (Connecticut Appellate Court 2005) (establishes Strickland standard and deference to counsel performance; prejudice requirement)
- Small v. State, 101 Conn. App. 213, 920 A.2d 1024 (Connecticut Appellate Court 2007) (petition for a new trial is a civil, not criminal, matter; no right to appointed counsel)
- Cox v. Commissioner of Correction, 127 Conn. App. 309, 14 A.3d 421 (Connecticut Appellate Court 2011) (habeas burden requires demonstrable evidence, not conjecture)
- Crawford v. Commissioner of Correction, 285 Conn. 585, 940 A.2d 789 (Connecticut Supreme Court 2008) (limits on habeas petitions and need for evidence of ineffective assistance)
- Narumanchi v. DeStefano, 89 Conn. App. 807, 875 A.2d 71 (Connecticut Appellate Court 2005) (requires concrete proof, not speculation, for ineffective-assistance claims)
- Bertotti v. Commissioner of Correction, 136 Conn. App. 398, 44 A.3d 892 (Connecticut Appellate Court 2012) (rules against raising new claims on appeal that were not raised in habeas court)