217 Conn.App. 286
Conn. App. Ct.2023Background
- Ross was charged with sexual assault and first-degree kidnapping after a 2009 incident; prosecution introduced surveillance video from Victoria’s Market, DNA matching spermatozoa from the victim, tire‑mark and cell‑phone location evidence, and police located Ross days later in a matching vehicle with another sex worker.
- First criminal trial ended in a mistrial; Ross invoked his Faretta right and proceeded pro se with Attorney Aaron Romano appointed as standby counsel after a competency finding and canvass.
- During jury selection for the retrial Ross was briefly removed for disruptive conduct; Romano conducted voir dire for one day, after which Ross resumed self‑representation and later accepted an Alford plea to second‑degree kidnapping (10 years, 5 to serve, 5 suspended, 5 years probation).
- Ross filed a habeas petition alleging (1) actual innocence based on video and records; (2) due process/counsel violations from interception of prison mail (Lenarz claim); and (3) ineffective assistance by standby counsel Romano, among other counts.
- The habeas court dismissed several counts, tried counts one (actual innocence) and six (ineffective standby counsel), and denied relief; Ross obtained certification to appeal.
Issues
| Issue | Ross's Argument | Commissioner Argument | Held |
|---|---|---|---|
| Actual innocence based on surveillance/video discrepancies | The Victoria’s Market videos and witness testimony undermined the victim’s account and, combined with Ross’s alibi, constitute affirmative proof of innocence | Habeas court correctly required newly discovered evidence and that Ross failed to present clear and convincing affirmative evidence of innocence | Affirmed: Ross failed to present newly discovered evidence; even absent that rule, video challenges only impeach prosecution evidence and do not meet the Gould clear‑and‑convincing affirmative‑innocence standard |
| Ineffective assistance by standby counsel (Romano) | Romano assumed duties beyond standby role and had a duty to inform Ross of potential Lenarz claim arising from intercepted prison mail; failing to do so was deficient | Ross waived right to counsel by proceeding pro se; there is no constitutional right to effective standby counsel absent interference with self‑representation | Affirmed: No ineffective assistance—Ross knowingly proceeded pro se; Romano functioned as standby counsel and did not usurp Ross’s control or otherwise interfere with Faretta rights |
| Dismissal of habeas count alleging intercepted mail violated due process/assistance of counsel (Lenarz-related) | Interception tainted proceedings and affected voluntariness of Ross’s plea; had he known Lenarz relief was available he would not have pled guilty | Count alleged only preplea deprivation and sought dismissal of charges; guilty plea waived nonjurisdictional pretrial defects absent an allegation that plea was involuntary | Affirmed: Count two did not allege the plea was unknowingly or involuntarily entered; Ross was aware of the intercepted mail before pleading and did not amend pleadings to claim plea involuntariness |
Key Cases Cited
- Gould v. Commissioner of Correction, 301 Conn. 544 (Conn. 2011) (requires clear‑and‑convincing affirmative proof of actual innocence; mere impeachment of trial evidence insufficient)
- State v. Lenarz, 301 Conn. 417 (Conn. 2011) (prosecutorial intrusion into privileged defendant communications may require dismissal absent state rebuttal)
- State v. Oliphant, 47 Conn. App. 271 (Conn. App. 1997) (no constitutional right to effective standby counsel after Faretta waiver)
- McKaskle v. Wiggins, 465 U.S. 168 (U.S. 1984) (limits on standby counsel: assistance allowed but must not interfere with defendant’s control of self‑representation)
- Faretta v. California, 422 U.S. 806 (U.S. 1975) (right to self‑representation and waiver of right to counsel)
- Tollett v. Henderson, 411 U.S. 258 (U.S. 1973) (guilty plea waives nonjurisdictional preplea constitutional claims)
- United States v. Schmidt, 105 F.3d 82 (2d Cir. 1997) (standby counsel’s limited role; ineffective‑assistance claims fail where defendant retained control)
- Miller v. Commissioner of Correction, 242 Conn. 745 (Conn. 1997) (clarifies burden and limits of clear‑and‑convincing standard for actual innocence)
- Finney v. Commissioner of Correction, 207 Conn. App. 133 (Conn. App. 2021) (pleading‑stage inference that ineffective assistance may relate to plea voluntariness where allegations permit such an inference)