35 Conn. App. 754 | Conn. App. Ct. | 1994
The petitioner appeals from the dismissal of his petition for a writ of habeas corpus.
The following facts are not disputed. On February 20, 1985, the petitioner pleaded nolo contendere to one count of sexual assault in the first degree in violation of General Statutes § 53a-70,
On October 22,1985, the petitioner appeared before the sentence review board seeking review of his sentences in these cases. The board dismissed the case and the petitioner appealed the dismissal to this court. This court dismissed that appeal on December 9,1986. The petitioner initiated habeas corpus proceedings on February 23,1987, to challenge the validity of the convictions.
I
The petitioner claims that his guilty pleas in the G.A. 13 cases were invalid because the trial court failed to comply with Practice Book § 711. Specifically, the petitioner claims that the trial court failed to canvass him as directed by § 711 (2) and (4).
Practice Book § 711 details the requirements for a guilty plea, ensuring that a plea is made knowingly and voluntarily. In particular, § 711 (4) requires that the judicial authority must first address the defendant per
The habeas court correctly rejected the petitioner’s claim that the trial court failed to comply with the constitutional mandate recognized by Practice Book § 711 (4). The record clearly reveals that the petitioner understood, as required by Practice Book § 711 (4), the maximum possible sentences for all offenses, and that the sentences could be imposed consecutively.
Second, the petitioner claims that the trial court’s canvass did not comply with the requirements of Practice Book § 711 (2). After the habeas court found that there was no deliberate bypass
In accordance with Practice Book § 4059, the petitioner has a duty to provide this court with a record for review. “The [petitioner] failed to follow the relatively simple rules established to guarantee the presentation to this court of a record appropriate for review.” Holmes v. Holmes, 32 Conn. App. 317, 322, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993). As there was a total failure on the petitioner’s part to comply with Practice Book § 4059, the petitioner’s claim must fail. Economy Sales & Service Co. v. Family Center Pharmacy, Inc., 33 Conn. App. 822, 826, 639 A.2d 1042 (1994).
II
The petitioner next claims that the habeas court should have found that the alteration of the date of the alleged offense violated his due process rights. The state’s attorney in the G.A. 13 cases changed the date of the offense charged from “June 1976” to “December 1979.” The habeas court noted that this change occurred after a review of all the evidence. The habeas court found that the facts available to the state’s attorney supported the change of offense date. The habeas court also found that the petitioner had not deliberately bypassed direct appeal of this claim, but did not specifically address the merits of the claim. Instead, the court swept the petitioner’s claim out with all other unaddressed issues in the final sentence of its opinion:
Ill
The petitioner next claims that his guilty pleas are invalid because he lacked effective assistance of counsel in the G.A. 13 cases. The right to effective assistance of counsel is guaranteed by the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. Levine v. Manson, 195 Conn. 636, 639, 490 A.2d 82 (1985). A petitioner claiming ineffective assistance of counsel must satisfy a two-pronged test: (1) that his attorney made errors so serious as to cease functioning as counsel, and (2) that “ ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Phillips v. Warden, 220 Conn. 112, 132, 595 A.2d 1356 (1991), quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “The ‘ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged.’ ” Phillips v. Warden, supra, 134.
“We first consider our scope of review. Although the underlying historical facts found by the habeas court may not be disturbed unless they were clearly erroneous, whether those facts constituted a violation of the petitioner’s rights under the sixth amendment ‘is a mixed determination of law and fact that requires the application of legal principles to the historical facts
The petitioner’s claim of ineffective counsel consists of three parts. He claims that his trial counsel was ineffective for failing (1) to advise him “concerning his right to appeal the trial court’s possible violation of Practice Book § 711,” (2) to “raise the issue of the underlying basis for the change of the date of the alleged offense by the prosecutor,” and (3) to “file a motion to dismiss, pursuant to the statute of limitations.”
A
As to the petitioner’s first claim concerning ineffective assistance of counsel, the petitioner claims that the trial court’s canvass did not comply with Practice Book § 711 and, therefore, his counsel should have advised him regarding the possibility of challenging the canvass on appeal. As noted in part I, the trial court did comply with Practice Book § 711 when it canvassed the petitioner. Thus, there were no grounds on which the attorney could recommend an appeal. To the extent that a good faith argument could have been made in support of the petitioner’s claim, the attorney’s error would not be so serious as to satisfy the first prong of Strickland. “Errors alone do not give rise to a claim of ineffective assistance; only errors so serious that counsel ceased functioning as counsel guaranteed by the sixth amendment.” Falby v. Commissioner of Correction, 32 Conn. App. 438, 442, 629 A.2d 1154, cert. denied, 227 Conn. 927, 632 A.2d 703 (1993).
B
The petitioner next claims that his counsel was ineffective because he failed to raise the issue of the
C
The petitioner’s final claim is that his counsel failed to investigate and assert a statute of limitations defense properly. The record indicates that petitioner’s counsel was aware of a potential statute of limitations defense, thoroughly investigated the issues and discussed them with the petitioner. The flaw in that defense was that the petitioner had been out of the state for approximately two and one-half years following the offenses. The record shows that the petitioner’s counsel believed that the petitioner’s absence from the state would defeat the statute of limitations defense under General Statutes § 54-193 (c).
The petitioner now challenges his counsel’s belief that the statute of limitations defense would be defeated and alleges that such a belief constitutes ineffective assistance of counsel. The question is not whether his counsel’s interpretation was correct, but only whether it was one a reasonably competent attorney could have made. Aillon v. Connecticut, 597 F. Sup. 158 (D. Conn. 1984),
We conclude that counsel’s conduct may have been in error, but was certainly not “so serious that counsel ceased functioning as counsel guaranteed by the sixth amendment.” Falby v. Commissioner of Correction, 32 Conn. App. 442. Thus, the petitioner has failed to satisfy the first prong of Strickland.
The judgment is affirmed.
In this opinion the other judges concurred.
The petition was dismissed as to all claims, except that the petitioner’s right to sentence review was reinstated.
General Statutes § 53a-70 provides in relevant part: “(a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person, or (2) engages in sexual intercourse with a person under thirteen years of age ....
“(b) Sexual assault in the first degree is a class B felony for which one year of the sentence imposed may not be suspended or reduced by the court.”
General Statutes § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”
General Statutes (Rev. to 1979) § 53a-71 provides: “(a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under fifteen years of age, or (2) mentally defective, mentally incapacitated or physically helpless, or (3) less than eighteen years old and the actor is such person’s guardian or otherwise responsible for the general supervision of such person’s welfare, or (4) such other person is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over such other person.
“(b) Sexual assault in the second degree is a class C felony.”
North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
The transcript adequately reflects that the petitioner understood the maximum possible sentences for all offenses, and that the sentences could be imposed consecutively.
“The Court: Has your counsel informed you of the maximum sentence?
“Mr. Rouillard: Yes.
* * *
“The Court: Are you aware that in each of these counts the maximum penalty is ten years in prison . . . and that they can run consecutively for a total effective potential sentence . . . are you aware of that?
“Mr. Rouillard: Yeah, I am.”
This court notes that the habeas court should have employed the test for cause and prejudice and not the bypass test. Lozada v. Warden, 223
General Statutes § 54-193 (c) provides: “If the person against whom an indictment, information or complaint for any of said offenses is brought has fled from and resided out of this state during the period so limited, it may be brought against Mm at any time within such period, during which he resides in this state, after the commission of the offense.”