Morrow v. Commissioner of Correction
Morrow v. Commissioner of Correction
Opinion of the Court
Opinion
The petitioner, Brent J. Morrow, 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 petitioner claims that the court abused its discretion in denying his petition for certification to appeal and improperly rejected his claim that his trial counsel rendered ineffective assistance. We conclude that the court properly denied the petition for certification to appeal and, accordingly, dismiss the petitioner’s appeal.
“The trial court, Gill, J., then canvassed the petitioner.” The court informed the petitioner that the maximum penalty for the crime for which he pleaded guilty was twenty years imprisonment. The petitioner agreed that he understood the nature of the crime and the possible penalties that he faced. After completing the canvass, the trial court accepted the plea.
“Thereafter, the court inquired whether counsel ‘wanted to be heard on bond,’ and a discussion on the record ensued. Cosgrove proposed that the court release the petitioner on a promise to appear subject to conditions that the petitioner live with his aunt, [that he] obey her house rules, ‘that he stay out of trouble,’ and that he appear for sentencing on January 20. Cos-grove then added: ‘He understands if he were not to do that, he could face an additional charge of failure to appear, and that his plea bargain that we worked out will be null and void.’ ”
After recital of several other conditions of release, the court stated: “Also, if he gets arrested for anything during this period of time with probable cause all deals are off,” to which the assistant state’s attorney added, “[a]nd he could be sentenced up to the maximum of the statute.” The court once again reiterated that “[the
Sentencing took place on May 5, 2006.
“The state next made sentencing remarks and requested a sentence of twenty years. Cosgrove then made a motion to withdraw the petitioner’s plea as follows: ‘First of all, I am aware of the most recent State Supreme Court case on this matter of these Garvin
On December 8, 2006, the petitioner filed a petition for a writ of habeas coipus and amended this petition on September 1,2010, setting forth one count of ineffective assistance of counsel against Cosgrove and a second count reciting a violation of due process under both the state and federal constitutions. The habeas court denied the petition for writ of habeas corpus on October 29, 2010. The court first noted that the petitioner was procedurally defaulted by not raising “either of the themes that he now presses ... he did not attempt to argue that there was no Garvin plea or Garvin violation.” It stated that the petitioner could overcome the defense of procedural default, however, if he could show that Cosgrove’s deficient performance was the cause of the default and that he was prejudiced by the deficient performance. The court thereafter concluded that the petitioner failed to prove both deficient performance and resultant prejudice, as required by Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The petitioner thereafter filed a petition for certification to appeal, which the court denied. This appeal followed.
The petitioner claims that the habeas court abused its discretion when it denied his petition for certification to appeal and rejected his claim that his trial counsel rendered ineffective assistance. “Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the
“We examine the petitioner’s underlying claim[s] of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. 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, [supra, 466 U.S. 687], 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)
We agree with the habeas court’s conclusion that the petitioner has failed to prove prejudice under Strickland. “[T]o show prejudice [when counsel fails to apprise a defendant of his or her appellate rights], a defendant must demonstrate that there is a reasonable probability that, but for counsel’s deficient failure to consult with him about an appeal, he would have timely appealed.” (Internal quotation marks omitted.) Shelton v. Commissioner of Correction, 116 Conn. App. 867, 879, 977 A.2d 714, cert. denied, 293 Conn. 936, 981 A.2d 1080 (2009). “[WJhether a'given defendant has made the requisite showing will turn on the facts of a particular case. . . . [E]vidence that there were nonfdvolous grounds for appeal or that the defendant in question promptly expressed a desire to appeal will often be highly relevant in making this determination.” (Internal quotation marks omitted.) Ghant v. Commissioner of Correction, 255 Conn. 1, 10, 761 A.2d 740 (2000).
The appeal is dismissed.
In this opinion the other judges concurred.
See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
There is no indication in the record as to why sentencing was delayed from January 20, 2006, to May 5, 2006. The petitioner has not raised this issue on appeal.
See State v. Garvin, 242 Conn. 296, 300-302, 699 A.2d 921 (1997).
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