Fernandes v. Commissioner of Correction
Fernandes v. Commissioner of Correction
Opinion of the Court
Opinion
The petitioner, David A. Fernandes, Jr., appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims that the court erred in concluding that his appellate counsel did not provide him with ineffective assistance. We affirm the judgment of the habeas court.
On September 12, 2005, the petitioner was issued a juvenile summons and complaint charging him with conspiracy to commit assault in the second degree in violation of General Statutes §§ 53a-48 and 53a-60, in
The parties appeared before the criminal court, Handy, J., later that day. The criminal court stated that the prosecutor had ten days to decide whether to keep the case on the part A docket in the criminal court. The petitioner’s trial counsel, attorney Barry Ward, stated that he would like to be heard on the transfer issue at the appropriate time. The criminal court responded that the appropriate time would be November 17, 2005, but stated that under the statute, it was the state’s decision whether to transfer a case to the criminal court and that it “is not an issue really in which the court even has any input.” When the parties appeared again before the criminal court on November 17,2005, the prosecutor suggested that the case should remain on the criminal
The state filed a substitute information that added the charge of assault in the second degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-60 (a) (1). Following a jury trial, the petitioner was found guilty of assault in the second degree as an accessory and not guilty of conspiracy to commit assault in the second degree. The petitioner was sentenced to a total effective term of three years incarceration, execution suspended after one year, and three years probation.
The petitioner, through his appellate counsel, attorney Ralph U. Bergman, appealed to this court, which held that “[d]ue process and § 46b-127 (b) require that the defendant be afforded a hearing in which the Juvenile Court judge considers argument from counsel as to whether a case should be transferred to adult criminal court.” State v. Fernandes, 115 Conn. App. 180, 188, 971 A.2d 846 (2009), rev’d, 300 Conn. 104, 12 A.3d 925 (2011). This court concluded that the refusal of the juvenile court to exercise discretion, to consider the arguments presented and to determine whether it should order the transfer violated the petitioner’s rights to due process and misapplied § 46b-127 (b). Id., 189.
The Supreme Court granted certification on the following issue: “Did the Appellate Court properly conclude that the transfer of the juvenile’s case from the juvenile docket to the regular docket of the Superior Court did not comply with the applicable statute and with due process requirements?” State v. Fernandes, 293 Conn. 917, 979 A.2d 491 (2009). Bergman argued in the petitioner’s brief to the Supreme Court that this court had correctly determined that due process required a juvenile to receive a pretransfer hearing in
The petitioner filed a petition for a writ of habeas corpus alleging that Bergman had provided ineffective assistance by failing to raise effectively before our Supreme Court the issue of his entitlement to a pretrans-fer hearing in the criminal court under § 46b-127 (b) and for his express waiver of that issue. The habeas court denied the petition, concluding that Bergman had
The habeas court also rejected the petitioner’s claim that Bergman’s performance fell below that of a reasonable attorney because he failed to raise the unpreserved issue of a hearing in criminal court under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), the plain error doctrine, or our appellate courts’ supervisory powers. The habeas court reasoned that “such a claim was not expressly plead in the petitioner’s complaint. In addition, at the habeas trial, no one questioned
“In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. ... In Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction .... That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense [by establishing a reasonable probability that, but for the counsel’s mistakes, the result of the proceeding would have been different]. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” (Internal quotation marks omitted.) Farnum v. Commissioner of Correction, 118 Conn. App. 670, 674-75, 984 A.2d 1126 (2009), cert. denied, 295 Conn. 905, 989 A.2d 119 (2010).
“[T]o satisfy the performance prong [of the Strickland test], a claimant must demonstrate that counsel made errors so serious that counsel was not functioning
The petitioner claims that the habeas court erred in concluding that Bergman did not render deficient performance, and that it should have found him to be ineffective because (1) he did not fully and adequately brief the issue of a right to a hearing in the criminal court due to the fact that it was waived, (2) the waived issue regarding a hearing in the criminal court was superior to the briefed claim regarding a hearing in the juvenile court, (3) alternatively, if the waived issue was not superior to the briefed claim, neither was it weaker or inferior, and Bergman’s failure to brief it constituted ineffective assistance of counsel, (4) the issue was not novel because due process required a hearing, and (5)
The habeas court did not err in determining that Bergman’s performance was not deficient. After a careful examination of the record and the parties’ arguments on appeal, we conclude that the well reasoned opinion of the habeas court was correct. There is no indication that at the time Bergman made his decisions as to what course to take on direct appeal, the decisions were illogical, especially in light of Solak’s lack of objection with regard to the transfer issue in the criminal court.
The judgment is affirmed.
In this opinion the other judges concurred.
The transfer was effected between the docket of the Superior Court for Juvenile Matters and the regular criminal docket of the Superior Court. See General Statutes § 46b-127 (b). For convenience, the dockets are occasionally referred to as juvenile court or criminal court. All of the courts are, of course, within the Superior Court.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.