Rogers v. Commissioner of Correction
Rogers v. Commissioner of Correction
Opinion of the Court
Opinion
The petitioner, Anthony W. Rogers, appeals from the judgment of the habeas court denying his motion for summary judgment on the ground of the alleged ineffective assistance of his appellate counsel and granting in part the cross motion for summary judgment filed by the respondent, the commissioner of correction, on the ground of lack of prejudice.
The following facts and procedural history are relevant to the resolution of this appeal. In a pretrial motion, the state sought to join three informations against the petitioner in his criminal trial. State v. Rogers, 123 Conn. App. 848, 856, 3 A.3d 194, cert. denied, 299 Conn. 906, 10 A.3d 524 (2010). The first information charged the petitioner with murder, conspiracy to commit murder and attempt to commit murder; the second information charged the petitioner with attempt to commit assault in the first degree and carrying a pistol without a permit; and the third information charged the petitioner with possession of narcotics with intent to sell. The trial court granted the state’s motion for joinder with respect to the first and second informations. Id. After a jury trial, the petitioner was convicted of murder, conspiracy to commit murder, attempt to commit assault in the first degree and carrying a pistol without a permit. The trial court sentenced the petitioner to a total effective sentence of seventy-one years of incarceration. Id., 850 n.2. The petitioner appealed to this court, which declined to review the petitioner’s joinder challenge on the ground of inadequate briefing and affirmed the judgments of conviction. Id., 860, 862.
. On January 24, 2011, the petitioner filed a petition for a writ of habeas corpus in which he alleged the ineffective assistance of his appellate counsel on the ground that his counsel failed to brief adequately his claims regarding joinder, severance and uncharged misconduct.
On appeal, the petitioner claims that the habeas court improperly denied his claim that his appellate counsel rendered ineffective assistance when appealing his criminal convictions. The petitioner argues that his appellate counsel’s ineffective assistance prejudiced him because this court, on direct appeal of his criminal convictions, would have reversed his convictions had his appellate counsel properly briefed the joinder issue.
“Our Supreme Court has adopted [the] two part analysis [set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] in reviewing claims of ineffective assistance of appellate counsel. ... To prevail on a claim of ineffective assistance of counsel, a petitioner must show (1) that counsel’s performance was deficient and (2) that the
At the time of the petitioner’s criminal convictions, Connecticut courts “recognized a clear presumption in favor of joinder and against severance . . . and, therefore, absent an abuse of discretion . . . [would] not second guess the considered judgment of the court as to the joinder or severance of two or more charges.” (Internal quotation marks omitted.) State v. Randolph, 284 Conn. 328, 338, 933 A.2d 1158 (2007). This presumption in favor of joinder subsequently was rejected by
“[W]hen charges are set forth in separate informa-tions, presumably because they are not of the same character, and the state has moved in the trial court to join the multiple informations for trial, the state bears the burden of proving that the defendant will not be substantially prejudiced by joinder pursuant to Practice Book § 41-19. The state may satisfy this burden by proving, by a preponderance of the evidence, either that the evidence in the cases is cross admissible or that the defendant will not be unfairly prejudiced pursuant to the Boscarino factors.” State v. Payne, supra, 303 Conn. 549-50. “The decision of whether to order severance of cases joined for trial is within the discretion of the trial court, and the exercise of that discretion [may] not be disturbed unless it has been manifestly abused. ... It is the defendant’s burden on appeal to show that the denial of severance resulted in substantial injustice, and that any resulting prejudice was beyond the curative power of the court’s instructions. ... In [State v. Boscarino, 204 Conn. 714, 723, 529 A.2d 1260 (1987)], our Supreme Court recognized three factors that must be considered by a trial court in determining whether joinder is appropriate. Those factors are (1) whether the charges involve discrete, easily distinguishable factual
In denying the petitioner’s petition for a writ of habeas corpus, the habeas court, after reviewing the trial court’s decision to grant the state’s motion to join two of the three informations and the standards that this court would have applied, found that it was “not reasonably probable that the petitioner would have prevailed in his direct appeal had the issue been properly briefed.” This court, on direct appeal of the petitioner’s criminal convictions, set forth the arguments advanced by the petitioner against joinder of the informations for trial. State v. Rogers, supra, 123 Conn. App. 858-59. In that decision, we noted the petitioner’s concession that the first Boscarino factor was satisfied, and that the trial court determined that he failed to address adequately the third Boscarino factor.
The second Boscarino factor questions “whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part”; State v. Boscarino, supra, 86 Conn. App. 460; so as to “compromise the jury’s ability to consider fairly the charges
The essence of the petitioner’s challenge to the join-der of the information charging murder, conspiracy to commit murder and attempt to commit murder with the information charging attempt to commit assault in the first degree and carrying a pistol without a permit is that the allegations that are the basis of the murder charge concern brutal or shocking conduct on the petitioner’s part that compromised the jury’s ability to consider fairly the charges against him in the attempt to commit assault and carrying a pistol without a permit case. The question of whether the murder allegations in the underlying criminal trial concerned brutal or shocking conduct on the petitioner’s part was addressed by the trial court, which “reasoned that the allegations surrounding [the] murder do not involve prolonged anguish, gratuitous injuries, prior taunting or any other claims that might inflame the jury’s passion. Instead, the murder, while tragic and upsetting, was committed in a relatively clinical fashion. Indeed [our Supreme Court] has held that [w]hile any murder involves violent and upsetting circumstances, it would be unrealistic to assume that any and all such deaths would inevitably be so brutal and shocking that a jury, with proper instructions to treat each killing separately, would necessarily be prejudiced by a joint trial. State v. Herring, 210 Conn. 78, 97, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989); see also State v. Hair, 68 Conn. App. 695, 700-701, 792 A.2d 179, cert. denied, 260 Conn. 925, 797 A.2d 522 (2002).” (Internal quotation marks omitted.) State v. Rogers, supra, 123 Conn. App. 858. Thus, the trial corut concluded that the murder “was not so brutal or shocking under Boscarino.'' (Internal quotation marks omitted.) Id., 859.
The trial court concluded that the petitioner did not satisfy the second Boscarino factor because the murder allegations did not concern brutal or shocking conduct that could compromise the jury’s ability to consider fairly the charges against the petitioner in the attempt to commit assault case. The trial court provided a thorough analysis, premised on good authority, for its conclusion as to the second Boscarino factor. As we have previously set forth: “The decision of whether to order severance of cases joined for trial is within the discretion of the trial court, and the exercise of that discretion [may] not be disturbed unless it has been manifestly abused. ... It is the defendant’s burden on appeal to show that the denial of severance resulted in substantial injustice, and that any resulting prejudice was beyond the curative power of the court’s instructions.” State v. Boscarino, supra, 86 Conn. App. 460.
Our review of the record before the habeas court and its application of our well established summary
The judgment is affirmed.
In this opinion the other judges concurred.
The habeas court granted the petitioner’s petition for certification to appeal from the habeas court’s judgment on his petition for a writ of habeas corpus.
We note that the petitioner’s present counsel also served as his trial counsel, his appellate counsel for the direct appeal of his criminal conviction and his habeas counsel. More importantly, the petitioner’s counsel is the same counsel that the petitioner alleged provided ineffective assistance in the direct appeal of his criminal convictions. The respondent filed with the habeas court a motion to disqualify the petitioner’s habeas counsel, which the court granted in part and denied in part. In its March 24, 2011 decision,
For the facts that reasonably could have been found by the jury in the underlying criminal cases, see State v. Rogers, supra, 123 Conn. App. 848.
In his petition for a writ of habeas corpus, the petitioner made two additional claims; however, neither of those claims is before this court on appeal. First, the petitioner claimed that his appellate counsel provided ineffective assistance by failing to brief adequately the issue that the trial court erred in allowing evidence of uncharged conduct. The petitioner did not brief this claim in his motion for summary judgment to the habeas court
Secondly, the petitioner claimed that his appellate counsel rendered ineffective assistance by failing to brief adequately the issue that the trial court erred in denying the petitioner’s motion to sever certain charges. The habeas court dismissed that claim. In his appellate brief, the petitioner concedes that case law provides that “a greater showing must be made than was made [by the petitioner] at the criminal trial court level here regarding the nature of [the petitioner’s] proposed testimony and his reasons for not wanting to testify in the other matter. . . . Therefore, that issue is not pursued on this appeal.” (Citation omitted.)
The petitioner’s concession and the trial court’s determination were made in connection with proceedings on his objection to the state’s pretrial motion for joinder in the underlying criminal case.
Reference
- Full Case Name
- ANTHONY W. ROGERS v. COMMISSIONER OF CORRECTION
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- 3 cases
- Status
- Published