Kennedy v. Commissioner of Correction
Kennedy v. Commissioner of Correction
Opinion of the Court
Opinion
The petitioner, Eric Kennedy, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus
The following procedural history is relevant to this appeal. The most recent charges brought against the petitioner that are at issue in this appeal were the result
On November 13, 2009, the petitioner filed an amended petition for a writ of habeas corpus, claiming
On appeal to this court, the petitioner claims that the habeas court abused its discretion when it denied his petition for certification to appeal that court’s finding that Moscowitz’ representation during the plea negotiations and entry of the petitioner’s plea agreement was ineffective because (1) he did not inform the petitioner that he would be required to serve between twenty and twenty-five years in prison and (2) he did not adequately research sentences issued in similar cases. We are not persuaded.
“The standard of review for a habeas court’s denial of a petition for certification to appeal requires the petitioner to prove that the denial of the petition for certification was an abuse of discretion and also that
“[T]he governing legal principles in cases involving claims of ineffective assistance of counsel arising in connection with guilty pleas are set forth in Strickland [v. Washington, 466 U.S. 668, 104 S. Ct. 2062, 80 L. Ed. 2d 674 (1984)] and Hill [v. Lockhart, 474 U.S. 62, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)]. [According to] Strickland, [an ineffective assistance of counsel] claim must be supported by evidence establishing that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance. . . . The first prong requires a showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed . . . by the [s]ixth [a]mendment. . . . Under . . . Hill . . . which . . . modified the prejudice prong of the Strickland test for claims of ineffective assistance when the conviction resulted from a guilty plea, the evidence must demonstrate that there is a reasonable probability that, but for counsel’s errors, [the petitioner] would not
The petitioner first claims that he would not have pleaded guilty had he known that his plea agreement carried a possible maximum sentence of twenty-five years incarceration, rather than a maximum of ten years. At the habeas trial, the petitioner testified to this effect. Moscowitz, however, testified that he had discussed with the petitioner the plea agreement and the possible sentencing range that the trial court might impose, up to and including a maximum sentence of twenty-five years. Moscowitz also denied that a sentence of ten years incarceration was ever discussed with the petitioner. The habeas court found Moscowitz to be a more credible witness, and determined, on the basis of this and other evidence presented at the habeas trial,
The petitioner next claims that Moscowitz’ representation was deficient because he did not adequately research the duration of sentences received by defendants in similar “shaken baby” cases. He argues that, as a result, he pleaded guilty on the basis of Moscowitz’ “gross misadvice” regarding the “likely range of sentences” that he faced. The petitioner, however, fails to demonstrate how such an absence of research on this topic amounted to deficient performance or that he would have changed his pleas on the basis of any such comparison.
Sentencing in Connecticut “is an individualized procedure in which the court has the grave responsibility to determine and impose, within applicable statutory limits, the appropriate punishment for a particular defendant.” (Internal quotation marks omitted.) State v. Fuller, 56 Conn. App. 592, 624, 744 A.2d 931, cert. denied, 252 Conn. 949, 748 A.2d 298, cert. denied, 531 U.S. 911, 121 S. Ct. 262, 148 L. Ed. 2d 190 (2000). It has been well established by both the United States Supreme Court and our Supreme Court that there is no due process liberty interest or other constitutional right to the type of proportionality review that the petitioner claims was required by Moscowitz in this case. See
Moscowitz, therefore, had no legal obligation to research comparable sentences in similar cases. Moreover, the petitioner has not cited any cases that demonstrate that his sentence was grossly disproportionate in comparison to the sentences of other defendants who were convicted of crimes involving “shaken baby syndrome,”
Because we conclude that Moscowitz’ representation was not deficient with respect to the petitioner’s claims, we do not reach the prejudice prong of Strickland, namely, whether but for counsel’s deficient performance the petitioner would not have pleaded guilty, but would have proceeded to trial.
The appeal is dismissed.
The amended habeas petition asserts that the petitioner was named as a defendant in charges filed on various dates, charging him with two counts of assault in the first degree, eight counts of risk of injury to a child, four counts of reckless endangerment, one count of robbery in the third degree, one count of threatening in the second degree, one count of disorderly conduct, two counts of criminal trespass and two counts of criminal violation of a protective order.
The petitioner claimed, in this tragic “shaken baby syndrome” case, that his son fell out of his crib and that the petitioner shook him to revive him after the fall. At his hearing on the amended petition for a writ of habeas corpus, the petitioner maintained, as he had throughout the proceedings concerning this incident, that he was not trying to injure his son, but to revive him. The court acknowledged that such testimony of the petitioner might indicate remorse but did not amount to admitting responsibility for the child’s injuries. At sentencing, the trial court was aware that the child’s pediatrician would testify that from the child’s birth, the petitioner was affectionate and loving, but that other physicians would testify that the injuries of the child could not have occurred from falling two feet from a bed in the maimer described by the petitioner.
The petitioner’s total effective sentence is twenty-five years incarceration, execution suspended after twenty years, followed by five years probation.
On appeal, the petitioner does not challenge the habeas court’s finding that Moscowitz’ representation was not deficient with respect to the trial court’s entry of nolles, as part of the plea agreement, for the petitioner’s unrelated, pending charges. In its decision denying the habeas petition, the habeas court characterized that claim as a “nonissue,” because, even if Moscowitz’ performance in failing to inform the petitioner of the nolles was deficient, he suffered no prejudice as a result because he “never got prosecuted on them.” As a nolle prosequi is “functionally equivalent to a dismissal without prejudice”; (emphasis omitted) State v. Smith, 289 Conn. 598, 612, 960 A.2d 993 (2008); we agree that the petitioner was not prejudiced by the entry of nolles on the remaining charges against him.
Evidence presented at the habeas trial demonstrated that at his plea hearing, the petitioner acknowledged that he understood that his plea agreement provided for the previously mentioned sentencing range and that he had agreed to plead guilty to such a lengthy sentence so that “people [would not] be put through the pain of a trial,” and not, as he now contends, because he was unaware of the possible sentence that could accompany his plea agreement.
The petitioner further claims that because Moscowitz did not properly advise him about the possible range of sentences that could result from his plea agreement, his plea agreement was not knowing, intelligent and voluntary, and was, therefore, in violation of his constitutional right to due process. Because we affirm the habeas court’s finding that Moscowitz did discuss the sentence ramifications of his plea agreement with the petitioner, we need not address this claim.
In reviewing the petitioner’s sentence at his request, the sentence review division of the Superior Court concluded that, “[t]aking into consideration the petitioner’s background as well as the serious nature of the instant offense, the sentence imposed is appropriate and not disproportionate.” State v. Kennedy, Superior Court, judicial district of New Haven, Docket No. CR-04-28889 (April 30, 2009).
We note that there is a conflict in the current case law regarding the proper standard for determining prejudice in claims of ineffective assistance of counsel in connection with the decision to plead guilty, as articulated in Hill v. Lockhart, supra, 474 U.S. 52, and Copas v. Commissioner of Correction, 234 Conn. 139, 662 A.2d 718 (1995). There is an appeal pending in our Supreme Court, Brown v. Commissioner of Correction, Docket No. SC 18859, which addresses this issue. That case was transferred to our Supreme
Case-law data current through December 31, 2025. Source: CourtListener bulk data.