Date: 06-07-2016

Case Style: MICHAEL MISENTI v. COMMISSIONER OF CORRECTION

Case Number: AC 37091

Judge: Alexandra D. DiPentima

Court: Connecticut Appellate Court

Plaintiff's Attorney: Timothy F. Costello, assistant state’s attorney, Gail P. Hardy, state’s attorney, and David M. Carlucci, assistant state’s attorney

Defendant's Attorney: Jeanne M. Zulick

Description: The petitioner, Michael Misenti, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitionerclaimsthatthecourt(1)abuseditsdiscretion in denying certification to appeal from the determinationthatRichardGrabow, thepetitioner’strialcounsel, hadnotrenderedineffectiveassistance,and(2)improperly denied the motion to withdraw from the case filed by the petitioner’s habeas counsel, David B. Rozwaski, at the start of the habeas trial. We dismiss the petitioner’s appeal. The court set forth the following factual findings and procedural history in its memorandum of decision. In November,2013,whileoperatinghiscomputer,thepetitioner visited an adult only website ‘‘through which he sought customers for gay pornographic videos.’’ Throughthatwebsite,hemetandbegancommunicating with the victim, whom the petitioner believed to be an adult but was, in fact, a fourteen year old male. The petitioner made arrangements to meet the victim in person for the purpose of selling him pornographic videos. The petitioner went to the victim’s home and provided him with a bag containingvideos and a ‘‘sex toy.’’ The victim later told the police that the petitioner had kissed him, had touched his buttocks and had placed his mouth on the victim’s penis. Prior to his arrest or being in custody, the petitioner admitted to the police that he had kissed the victim. At the habeas trial, however, the petitioner denied that any physical contact had occurred. Thepetitionerwasarrestedandchargedwithattempt to commit sexual assault in the second degree in violation of General Statutes §§ 53a-49 and 53a-71, sexual assaultinthefourthdegreeinviolationofGeneralStatutes § 53a-73a, use of a computer to entice a minor in violation of General Statutes § 53a-90a, and risk of injury to a child in violation of General Statutes § 5321. The petitioner retained Grabow to represent him. Grabow filed a broad discovery request and had numerous discussions with prosecutors regarding a plea agreement. Grabow also met with the petitioner several times and explained the offers from the state. He also explained the elements of the charges to the petitioner, as well as the evidence that the state intended to introduce at trial. Although the petitioner maintainedthathehadnotviolatedanycriminalstatute because he had believed that the victim was at least sixteen or seventeen years old, Grabow explained that a mistake about the victim’s age was not a defense to the charges of risk of injury and sexual assault in the fourth degree.1 On September 8, 2004, the petitioner and Grabow
appeared for jury selection. At the outset, the criminal trial court told the petitioner that he had to decide if he was going to accept the state’s offer or proceed to trial. The court further explained that once the jury selection process began, ‘‘all bets are off on whatever pleabargaininghasoccurredbeforetoday.’’Aftersome brief discussion, it notified the parties that jury selection would start after a thirty minute recess. After the recess, the court noted that parties had reached an agreement. As noted by the habeas court, ‘‘[t]he petitioner agreed to accept the [state’s] offer so longashecoulddosothroughapleaofnolocontendere andundertheAlforddoctrine.’’2 Thestatefiledasubstitute information charging the petitioner with risk of injurytoachildinviolationof§ 53-21(a)(2)andsexual assaultinthefourthdegreeinviolationof§ 53a-73a.The partiesagreedthatthepetitionerwouldbesentencedto ten years incarceration, execution suspended after six months,tenyearsprobation,nocontactwiththevictim, and sex offender registration and treatment. The court then made the following statement to the petitioner: ‘‘Mr. Misenti, you’ve entered a nolo plea. Thatmeansyou’renotagreeingtoanyofthefactsstated by the state’s attorney just now, all right? It also gives you a certain amount of protection if there’s any civil suits. But you know that, under those facts, I will be making a finding of guilty under the charges as well the facts,throughyou’renotadmitting—orevendenying,at this time—to the point that you just don’t want to take the chance of going to trial and taking the chance that ajurymightfeelotherwiseandthestatemightbeableto getaconviction;isthattrue?’’Thepetitionerresponded that he was not guilty of these charges and that ‘‘[t]his thing is taking a tremendous physical and emotional toll on me, and I feel I cannot proceed with a trial.’’ He furtherexplainedthathewasnotmentallyorphysically capable of proceeding. The court then explained the differences between a nolo contendere plea and a plea made pursuant to the Alford doctrine. Thepetitionermaintainedthathedidnotbelievethat he was guilty of the charges and that the only reason thathecouldnotproceedwastheemotionalandphysical toll on him. The court replied that it would not acceptanAlfordplea.GrabowindicatedthattheAlford plea would be withdrawn. The court stated: ‘‘The nolo does not require that requirement; so it’s a nolo plea, forthereasonsstatedby[thepetitioner].Allright.Okay. So solely nolo. All right. Have you had enough time to thinkaboutthis?’’Thepetitionerresponded:‘‘Notreally. I would have liked more time, but my attorney told me thatIhadtomakeadecisionnow.’’Thecourtresponded that it could not accept the nolo contendere plea if the petitioner felt he did not have enough time to think about it. The court agreed to Grabow’s suggestion of a brief recess. During this second recess, the petitioner
went to his car and ingested Klonopin, his prescribed antianxiety medicine. Grabow knew that the petitioner was receiving treatment for mental health issues but the petitionerdid not informhim that hetook Klonopin during the recess. Aftertheproceedingresumed,Grabowindicatedthat a written plea of nolo contendere had been filed. The state then offered the following recitation of facts. The victim and the petitioner had been in contact via an online instant messaging system and then spoke on the telephone.Thepetitionerarrangedaninpersonmeeting at the victim’s home. ‘‘While in the house . . . [the petitioner] and [victim] allegedly kissed, and the [petitioner] allegedly touched the [victim’s] buttocks; he pulled away. He then was, allegedly, Your Honor, according to the statement, allegedly put his mouth on the [victim’s] penis. He then was told to leave, Your Honor, by the [victim]. He did comply with that and left . . . .’’ The petitioner informed the court that he did not agree with the facts as stated by the prosecutor. The court responded: ‘‘That’s the nolo plea. You’re not admitting to those facts . . . .’’ The petitioner interruptedthecourtandstatedthatthechargeswere‘‘absolutely false.’’ The court, after pointing out that a nolo plea afforded certain protections in a possible civil action, iterated that ‘‘[t]hat’s what the nolo plea is. You’re not admitting anything . . . .’’ The court then conductedapleacanvasswherethepetitioneracknowledged, inter alia, that he had enough time to consider the plea, that he had spoken with his attorney, that Grabow had explained the charges against him and the potential penalties that he faced. The petitioner stated that he understood everything that the court had said and that no one had forced him to make the decision to enter the nolo plea. The court accepted the plea as made voluntarily, intelligently and with the effective assistance of counsel. In the following weeks, the petitioner changed his mind and told Grabow that he wanted to withdraw the plea. On October 13, 2004, Grabow wrote to the petitioner to inform him that he would not file the motion to withdraw until he spoke to the petitioner on October19,2004.Thepetitionerultimatelydecidedthat he did not want the plea vacated, so Grabow did not file the motion. ThesentencinghearingoccurredonJanuary20,2005. At the outset, the prosecutor recommended a ten year periodofincarceration,executionfullysuspended.The prosecutor stated that on September 8, 2004, he had recommended that the petitioner serve six months, but as a result of further conversation with the victim, he was now recommending a fully suspended sentence. The court and the prosecutor also addressed the fact that the victim had returned to the website and again
misrepresented his age and had made a reference that he had ‘‘chickened out’’ in his meeting with the petitioner. The court agreed to impose the sentence as recommended by the prosecutor. In an amended petition for a writ of habeas corpus, thepetitionerallegedthatGrabowhasrenderedineffective assistance of counsel in a variety of ways,3 and soughttohavehisconvictionvacatedandhispleawithdrawn. On February 25, 2014, Attorney Rozwaski filed amotiontowithdrawhisappearanceashabeascounsel pursuant to Practice Book § 3-10 (b). The court held a trial on February 26, 2014, and, at the outset, addressed Rozwaski’s motion. After hearing from the petitioner and Rozwaski, the court denied the motion to withdraw and declined to appoint new counsel for the petitioner. After further discussion, the petitionerelectedtoproceedwithRozwaskiashisattorney. During the habeas trial, Rozwaski called Grabow and the petitioner as witnesses. On July 2, 2014, the court issued a memorandum of decision denying the petition for a writ of habeas corpus. Relevant to this appeal, the court determined that the claim that Grabow had failed to investigate and discover that the victim was ‘‘still entering websites by misrepresenting his age even after the petitioner was arrested’’ was without merit. Specifically, the court creditedGrabow’stestimonythatheknewonthemorning of September 8, 2004, prior to the petitioner’s plea, that the victim continued to engage in such conduct. The court further observed that Grabow’s knowledge of this conduct helped him to secure the plea offer that the petitioner accepted. In regards to the claim that Grabowhadfailedtoexplaintheelementsofthecrimes to which the petitioner pleaded guilty, or the factual bases for those charges, the court credited Grabow’s testimony to the contrary. The court also rejected the claimthatGrabowimproperlyhadfailedtofileamotion to withdraw the guilty plea, noting that although the petitioner had asked Grabow to file such a motion, therewasevidencethatthepetitionerchangedhismind prior to sentencing and did not want such motion filed. With respect to the petitioner’s claim that his plea had been made while under the effects of Klonopin, the court noted that there was no evidence that the petitioner had taken this medication, nor was there evidence regarding how quickly it took effect, and what effect it had. ‘‘Given the short nature of the recess, approximately twelve minutes, the court cannot just assume that the petitioner was under its effects at the time he entered his plea.’’ Finally, the court concluded that the petitioner had failed to sustain his burden of establishing that he would have insisted on going to trial. On July 10, 2014, the petitioner filed his petition for certification to appeal the denial of his petition for a
writofhabeascorpus.Hesetforthfivespecificgrounds as the bases for his appeal.4 The court denied the petition for certification on July 16, 2014. This appeal followed. I The petitioner first claims that the habeas court abused its discretion in denying certification to appeal from the determination that Grabow had not rendered ineffective assistance of counsel. Specifically, the petitioner argues that Grabow was ineffective by failing to (1) investigate the victim’s credibility and (2) move for acontinuancebeforethepleacanvassandlatertowithdraw the petitioner’s plea because it was not made knowingly, intelligently and voluntarily. We conclude that the court did not abuse its discretion in denying certification to appeal the claim of ineffective assistance of counsel. We begin by setting forth our standard of review following the denial of certification to appeal from the denial of a petition for a writ of habeas corpus. ‘‘In Simms v. Warden, 229 Conn. 178, 187, 640 A.2d 601 (1994), [our Supreme Court] concluded that . . . [General Statutes] § 52-470 (b) prevents a reviewing court from hearing the merits of a habeas appeal following thedenialofcertificationtoappealunlessthepetitioner establishes that the denial of certification constituted an abuse of discretion by the habeas court. . . . This standardrequiresthepetitionertodemonstratethatthe issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; orthatthequestionsareadequatetodeserveencouragement to proceed further. . . . A petitioner who establishes an abuse of discretion through one of the factors listed above must then demonstrate that the judgment of the habeas court should be reversed on its merits. . . . In determining whether the habeas court abused its discretion in denying the petitioner’s request for certification,wenecessarilymustconsiderthemeritsof thepetitioner’sunderlyingclaimstodeterminewhether the habeas court reasonably determined that the petitioner’s appeal was frivolous.’’ (Emphasis in original; internal quotation marks omitted.) Turner v. Commissioner of Correction, 163 Conn. App. 556, 562–63, A.3d (2016); seealso Fine v. Commissioner of Correction, 163 Conn. App. 77, 80–81, A.3d , cert. denied, 320 Conn. 925, A.3d (2016). ‘‘A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. . . . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. . . . As enunciated in Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], this court has stated: It is axiomatic that the right to counsel is the right to the
effective assistance of counsel. . . . A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill inthecriminallaw.’’(Internalquotationmarksomitted.) Ebron v. Commissioner of Correction, 307 Conn. 342, 351, 53 A.3d 983 (2012), cert. denied sub nom. Arnone v. Ebron, U.S. , 133 S. Ct. 1726, 185 L. Ed. 2d 802 (2013); see also Thiersaint v. Commissioner of Correction, 316 Conn. 89, 100–101, 111 A.3d 829 (2015). ‘‘Under . . . Hill [v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)] . . . 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 have pleaded guilty and would have insisted on going to trial.’’ (Internal quotation marks omitted.) Patterson v. Commissioner of Correction, 150 Conn. App. 30, 35, 89 A.3d 1018 (2014); see also Carraway v. Commissioner of Correction, 317 Conn. 594, 600 n.6, 119 A.3d 1153 (2015). Finally, we note that ‘‘[t]he conclusions reached by the trial court in its decision to dismiss [a] habeas petition are matters of law, subject to plenary review. . . . [When] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct . . . and whether theyfindsupportinthefactsthatappearintherecord.’’ (Internal quotation marks omitted.) Grant v. Commissioner of Correction, 121 Conn. App. 295, 298, 995 A.2d 641, cert. denied, 297 Conn. 920, 996 A.2d 1192 (2010). We now address the specifics of the petitioner’s appeal.5 First, the petitioner claims that Grabow was ineffectivebyfailingto investigatethevictim’scredibility and his continued misrepresentation of his age in order to access the website, especially given the commentsoftheprosecutorduringthesentencingproceeding. Specifically, the petitioner contends that he was not aware of this information regarding the victim and, if he had been, he would have proceeded to trial. We are not persuaded. The habeas court made two credibility determinations relevant to this claim. First the court concluded that Grabow ‘‘testified credibly that he knew on the morning of September 8, 2004, before the petitioner entered his plea, that the victim was still engaging in such activity.’’ The court further concluded that the petitioner’s contention that he was unaware of the victim’s ongoing activities until two years later was not credible. ‘‘In fact, the transcript of the petitioner’s sentencing makes it clear that everyone present, including
the petitioner, knew that the victim was still visiting such websites.’’ ‘‘[T]his court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of thewitnessesbasedonitsfirsthandobservationoftheir conduct, demeanor and attitude. . . . The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.’’ (Internal quotation marks omitted.) Mincewicz v. Commissioner of Correction, 162 Conn. App. 109, 112, 129 A.3d 791 (2015); see Brown v. Commissioner of Correction, 161 Conn. App. 770, 773, 129 A.3d 172 (2015), cert. denied, 320 Conn. 916, 131 A.3d 751 (2016); see also Couture v. Commissioner of Correction, 160 Conn. App. 757, 770, 126 A.3d 585 (axiomatic that appellate court cannot pass on credibility of witnesses), cert. denied, 320 Conn. 911, 128 A.3d 954 (2015). We refrain from invading the province of the habeas court to determine the credibility of Grabow andthepetitioner,andemployourcustomarydeference asareviewingcourt.Accordingly,weconcludethatthe petitioner’sclaimofineffectiveassistanceforthefailure toinvestigatethecredibilityofthevictimfailsand,thus, that the court did not abuse its discretion in denying certification to appeal this issue. Second, the petitioner claims that Grabow was ineffective for failing to move for a continuance before the plea canvass and subsequently for failing to move to withdraw his plea. Specifically, the petitioner contends that he did not understand the plea due to his ingestion ofKlonopinandGrabow’sfailuretoexplainthecharges adequately. With respect to the latter, the court determined that Grabow testified credibly that he had fully explained the elements of the crimes of which the petitioner pleaded, as well as the factual bases for the charges. Later, the court noted that ‘‘[t]here is no question that [the petitioner] understood the proceedings and what he was doing.’’ Deferring to the habeas court on matters of credibility, we conclude that this argument must fail. With respect to the petitioner’s claim that he did not make a knowing, intelligent and voluntary plea as a result of his ingestion of Klonopin during a recess in the proceedings, the court rejected it for several reasons. First, there was no evidence that Grabow knew that the petitioner had taken Klonopin during the recess.Second,thepetitionerfailedtopresentevidence duringthehabeastrialregarding‘‘howquicklyKlonopin becomes effective and what effects it has. Given the short nature of the recess, approximately twelve minutes, the court cannot just assume that the petitioner was under its effects at the time he entered his plea.’’ Third, the court concluded that the record and the evidence presented during the habeas trial estab
lished that the petitioner was not impaired at the time oftheplea.Specifically,itfoundthatthepetitionerwas lucid and appeared to understand the court’s questions during the canvass. We agree with the habeas court that the petitioner’s claimfailsasaresultoftheabsenceofevidenceregardingthetimeittakesforKlonopintoaffectanindividual. It is not enough for the petitioner to allege that his plea was not intelligently, knowingly and voluntarily made duetohisuseofKlonopin.Hewasrequiredtoestablish thatheactuallywasimpairedbyhisuseofthatmedication. See Hunnicutt v. Commissioner of Correction, 83 Conn. App. 199, 207, 848 A.2d 1229, cert. denied, 270 Conn. 914, 853 A.2d 527 (2004). As a result of this evidentiary gap, we cannot conclude that Grabow was ineffective for not requesting a continuance or moving to withdraw the plea. None of the claims regarding Grabow’s performance is debatable among jurists of reason, could be resolved inadifferentmannerordeserveencouragementtoproceed further. In other words, the habeas court did not abuse its discretion in denying certification to appeal from the denial of the petitioner’s claim that Grabow provided ineffective assistance of counsel. II The petitioner also claims that the court improperly deniedRozwaski’smotiontowithdrawashabeascounsel. Specifically, he argues that the court abused its discretionbecausetherewasatotallackofcommunicationbetweenhimselfandRozwaskithatpreventedadequate representation. The respondent, the Commissioner of Correction, counters that this claim is not properly before this court because it was not within the list of grounds for appeal attached to the petition for certification to appeal. We agree with the respondent. As we noted previously, the petitioner set forth five bases for grounds of his appeal from the decision of the habeas court, all of which pertained to the conduct ofGrabow,notRozwaski.Seefootnote4ofthisopinion. Simplyput,theclaimregardingthedenialofthemotion to withdraw filed by Rozwaski was not part of the petitionforcertificationtoappeal.‘‘Wehavestatedthat when a petitioner does not raise a specific claim in the petition for certification to appeal, we cannot conclude that the court abused its discretion in denying the petition for certification with respect to that claim.’’ Fine v. Commissioner of Correction, supra, 163 Conn. App. 82.Reviewofthisclaimwouldamounttoanambuscade ofthehabeasjudge.Tutsonv.CommissionerofCorrection, 144 Conn. App. 203, 216–17, 72 A.3d 1162, cert. denied, 310 Conn. 928, 78 A.3d 145 (2013); Perry v. Commissioner of Correction, 131 Conn. App. 792, 796, 28 A.3d 1015, cert. denied, 303 Conn. 913, 32 A.3d 966
(2011). Accordingly, we decline to consider it.

Outcome: The appeal is dismissed.

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