90 Conn. App. 167 | Conn. App. Ct. | 2005
Opinion
The petitioner, John Vivo III, appeals from the judgment of the habeas court denying in part his petition for a wilt of habeas corpus. On appeal, he claims that (1) the court improperly concluded that he received effective assistance of counsel and (2) his sentence under General Statutes § 53-202k should be vacated. We affirm in part and reverse in part the judgment of the habeas court.
As noted by the court, the basic facts of this case are not in dispute. “On or about February 23, 1994, three males entered an apartment at the Evergreen Apartments in Bridgeport, Connecticut, and fired gunshots at a male victim, who was fatally shot, and at a female victim, Yolanda Martinez, seriously wounding her. She survived and testified at probable cause hearings and at two trials that the petitioner was one of the individuals who had fired the gunshots. Later that evening, officers of the Bridgeport police [department] knocked on the door of the apartment of the petitioner, who answered it and permitted the officers to enter. Shortly thereafter, he was arrested and handcuffed.”
The petitioner was found guilty by a jury of murder in violation of General Statutes § 53a-54a, assault in the first degree in violation of General Statutes § 53a-59 and commission of a class A and class B felony with a firearm in violation of § 53-202k. The petitioner was
I
The petitioner claims that the court improperly concluded that he received effective assistance of counsel both at his trial and on appeal. We disagree.
A
The petitioner first argues that the court improperly found that he received effective assistance from his trial counsel. In his posttrial memorandum of law in support of his petition, the petitioner stated in regard to that claim: “The petitioner acknowledges that the evidence adduced at trial is not sufficient to sustain a verdict in his favor, and abandons the claim.” The court acknowledged that statement in its memorandum of decision. We agree with the court that the petitioner expressly abandoned that claim and decline to afford it review. See State v. Johnson, 82 Conn. App. 777, 794 n.12, 848 A.2d 526 (2004).
B
The petitioner also claims that the court improperly found that he received effective assistance from his
Before considering the petitioner’s specific claims, we first address the applicable standard of review. “In Strickland v. Washington, 466 U.S. 668, 671, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court articulated a two part analysis for evaluating constitutional claims of ineffective assistance of counsel. First, the [petitioner] must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the [petitioner] by the Sixth Amendment. Second, the [petitioner] must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable. Id., 687. Our Supreme Court has adopted that two part analysis in reviewing claims of ineffective assistance of appellate counsel. Bunkley v. Commissioner of Correction, 222 Conn. 444, 455, 610 A.2d 598 (1992); Sekou v. Warden, 216 Conn. 678, 690, 583 A.2d 1277 (1990); Valeriano v. Bronson, 209 Conn. 75, 83-84, 546 A.2d 1380 (1988).
“The first part of the Strickland analysis requires the petitioner to establish that appellate counsel’s representation fell below an objective standard of reasonableness considering all of the circumstances. Johnson v. Commissioner of Correction, 36 Conn. App. 695, 701, 652 A.2d 1050, cert. denied, 233 Conn. 912, 659 A.2d 183 (1995). [A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the
“The seminal case of Bunkley v. Commissioner of Correction, supra, 222 Conn. 444, considered the prejudice prong of the Strickland analysis in claims of ineffective assistance of appellate counsel. Rejecting the petitioner’s contention that the proper analytical focus
“Our review of the judgment of the habeas court is carefully circumscribed. The underlying historical facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . Whether the representation a [petitioner] received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Internal quotation marks omitted.) Mozell v. Commissioner of Correction, 87 Conn. App. 560, 562-65, 867 A.2d 51, cert. denied, 273 Conn. 934, 875 A.2d 543 (2005). With that standard in mind, we turn to the petitioner’s claim.
The petitioner asserts that his appellate counsel provided ineffective assistance by failing to include a state constitutional claim in his brief, in addition to the federal constitutional claim raised on appeal. This issue arises out of an incident that occurred when members of the Bridgeport police department, along with the petitioner’s father, went to the petitioner’s apartment
The petitioner argues that the inevitable discovery doctrine, as used by the trial court to deny his motion to suppress evidence obtained with the subsequently
Although the petitioner asserts that the trial court used the inevitable discovery rule as the basis for denying his motion to suppress, we note that on direct appeal, our Supreme Court determined that “[w]hile the trial court alluded to the inevitable discovery doctrine, its analysis and findings indicate that it held the search to be proper pursuant to the independent source doctrine.”
II
We next vacate the petitioner’s conviction for commission of a class A and class B felony with a firearm in violation of § 53-202k. Although the petitioner first raised the issue on appeal and without specifically
In State v. Dash, 242 Conn. 143, 150, 698 A.2d 297 (1997), our Supreme Court held that § 53-202k is a sentence enhancement provision and not a separate crime.
We conclude that Dash governs the present situation, and further discussion of our Supreme Court’s clear holding would serve no useful purpose. Although the petitioner’s total effective sentence was proper, the judgment must be modified to reflect the fact that § 53-202k does not constitute a separate offense. Accordingly, the petitioner is entitled to have his conviction under § 53-202k vacated. See State v. Harris, 54 Conn. App. 18, 25-26, 734 A.2d 1027, cert. denied, 250 Conn. 925, 738 A.2d 660 (1999).
The judgment is reversed only as to the conviction under § 53-202k and the case is remanded with direction to vacate that conviction and to resentence the petitioner to a total effective term of seventy-five years incarceration. The judgment is affirmed in all other respects.
In this opinion the other judges concurred.
The court rendered judgment in favor of the petitioner on his claim of ineffective assistance of counsel for sentence review and restored his right to sentence review. That claim is not a subject of this appeal.
“Both the independent source rule and the inevitable discovery rule rest on assumptions that if the law enforcement agencies involved had eschewed the illegal activity, they nevertheless would have procured the evidence at issue. But the independent source rule applies only upon proof that in actual fact the officers did not obtain the challenged evidence as a result
The respondent commissioner of correction argues that the petitioner cannot raise for the first time on appeal a claim alleging an illegal conviction. We disagree. See State v. Harris, 54 Conn. App. 18, 25, 734 A.2d 1027 (because of serious constitutional ramifications of improper conviction under General Statutes § 53-202k, court may at any time examine issue under plain error doctrine), cert. denied, 250 Conn. 925, 738 A.2d 660 (1999).