Damon Bigelow v. Warden
-- October 12, 2011
MEMORANDUM OF DECISION
I. Procedural History
This matter comes before the court for trial upon the petition of Damon Bigelow (hereinafter referred to as “petitioner”) challenging the legality of his detention and seeking a writ of habeas corpus. More specifically, the petitioner is challenging his convictions, after guilty pleas, entered in six (6) separate docket numbers 1 on November 12, 2008 before Hon. Susan S. Reynolds in the Danbury Superior Court. The petitioner, represented by Attorney Gene Zingaro (hereinafter also referred to as “attorney Zingaro” or “defense counsel”), was sentenced that same day pursuant to a plea agreement to a total effective sentence of forty years incarceration, suspended after fifteen years, all fifteen years being mandatory, followed by five years of probation.
Following his sentencing, the petitioner filed a pro se petition for a writ of habeas corpus on January 29, 2009. Subsequent to the filing of the initial petition, counsel was appointed to represent the petitioner and an amended petition was filed on June 8, 2011, alleging claims in three separate counts. The first count of the amended petition alleges conflict of interest, based on the claim that defense counsel simultaneously represented the petitioner's brother, who was arrested during the execution of a search warrant that also resulted in charges under one of the docket numbers pending against the petitioner. Count two claims ineffective assistance of counsel based on various grounds, including, but not limited to, failing to properly investigate, failing to review State's evidence, failing to interview witnesses, and failing to file certain motions. Count three, which did allege a due process violation as a result of the petitioner having been wrongly advised during the plea canvas as to the actual minimum mandatory prison sentence he faced, was withdrawn by the petitioner at the conclusion of evidence. The respondent filed a return on July 15, 2011, and a reply to the return was filed July 19, 2011.
The matter was tried before the Court on September 9 and 15, 2011. During the trial of the matter, testimony was presented from the petitioner, attorney Zingaro, Byron Bigelow, the petitioner's brother, Michelle Deveau, a records specialist from the Department of Corrections, and Crystal Blanchette, the respondent's former girlfriend. In addition to the testimony of the above witnesses, sixteen full exhibits were received by the Court, including, but not limited to copies of the defense counsel's case file, including his handwritten case notes, various police reports, statements and warrants supporting the charges pending against the petitioner, petitioner's criminal history, and transcripts from court appearances the petitioner made from July 14, 2008 through November 12, 2008.
II. Findings of Fact
After review of the testimony and exhibits, the Court makes the following findings of fact:
1. The petitioner was the defendant in numerous criminal and motor vehicle cases pending in the Danbury Superior Court beginning in January 2008.
2. On November 12, 2008, the petitioner pleaded guilty to certain of those files and, after full canvass by the court, Reynolds, J., received the following sentences pursuant to a negotiated plea agreement: CR08–0132343—Sale of Narcotics, General Statutes § 21a–278(b), 20 years, suspended after 5 years minimum mandatory incarceration, 5 years probation (consecutive to CR08–0133123); CR08–0133123–2 counts of Sale of Narcotics, General Statutes § 21a–278(b) 20 years, suspended after 5 years mandatory incarceration, 5 years probation on Count One, and 5 years mandatory incarceration on Count Two (consecutive to each other and consecutive to CR08–0132343); CR08–0133512—Sale of Narcotics, General Statutes § 21a–278(b), 5 years mandatory incarceration (concurrent to all others); CR06–0126034—Violation of Probation, General Statutes § 53a–32, 21 months incarceration (concurrent to all others); 2 CR08–0132648—(Alford plea) Assault on Police Officer, General Statutes § 53a–167c, 10 years, suspended after 5 years incarceration, 5 years probation (concurrent to all others); CR08–0131484, Disorderly Conduct, General Statutes § 53a–183, 30 days incarceration (concurrent to all others), for a total effective sentence of 40 years, suspended after 15 years mandatory incarceration, followed by 5 years probation.
3. During the pendency of his cases, the petitioner was represented by an attorney from the Office of the Public Defender from about January 14, 2008, until their withdrawal on July 14, 2008.
4. Subsequent to the withdrawal of the Office of the Public Defender, petitioner consulted with and paid at least a partial retainer to an attorney Raymond Lubus, who appeared as a “friend of the court” with the petitioner on August 25, 2008.
5. On September 24, 2008, while appearing as a self-represented party, the petitioner entered an admission to the violation of probation pending under Docket No. CR06–0126034. The petitioner was exposed to up to 42 months in prison based on his admission, and entered this admission with no agreement as to a maximum sentence that could be imposed by the Court at sentencing.
6. Also on September 24, 2008, the State's Attorney conveyed an offer in writing to the petitioner to resolve the remainder of all of his pending matters for a total effective sentence of 20 years, execution suspended after 15 years incarceration, followed by 5 years probation, and requested that the matter be continued to allow petitioner time to consult with legal counsel about the offer.
7. Attorney Zingaro, entered into a written retainer agreement with petitioner on October 1, 2008 and the petitioner first attempted to file his appearance on behalf of the petitioner on the same date. Although that first appearance was at some point returned by the clerk's office for being incomplete and correct appearances were not filed until some later date, defense counsel and petitioner actively engaged in an attorney-client relationship and defense counsel actively represented the petitioner from October 1, 2008 through November 12, 2008, the date of his guilty pleas and sentencing.
8. Defense counsel made a written request to the Office of the State's Attorney for copies of the files pending against the petitioner on or about October 6, 2008.
9. Defense counsel has been practicing law since completing law school and entering the United States Marine Judge Advocate General Corps in 1994. Following his separation from the military in 1997, he began practicing in Connecticut as an associate in a Bridgeport law firm, practicing mostly civil law. He left that practice in late 2000 or early 2001 to open his own law practice with a partner. Since that time, he has practiced civil, family and criminal law, with criminal law representing approximately 50% of his current practice. Defense counsel has represented numerous defendants in drug cases through diversionary programs, plea agreements and in trials throughout his career.
10. Byron Bigelow, respondent's brother, was arrested for possession of marijuana and possession of drug paraphernalia when he entered Brookside Condominiums, Unit 142–F, Padanaram Road, Danbury, on September 26, 2008 while police were in the process of executing a search and seizure warrant at that location related to conduct alleged against the petitioner.
11. Defense counsel did formally represent Byron Bigelow at some point in late 2008 or early 2009 and assisted in negotiating resolution of his pending cases so that Byron Bigelow was allowed to enter a diversionary program that ultimately resulted in all charges against him being either nolled or dismissed.
Additional facts will be discussed as necessary throughout the remainder of the opinion.
a. Count One—Conflict of Interest Claim
“The Sixth Amendment to the United States Constitution ․ and Article First, § 8, of the Connecticut Constitution, guarantee to a criminal defendant the right to effective assistance of counsel ․ As an adjunct to this right, a criminal defendant is entitled to be represented by an attorney free from conflicts of interest ․ Thus, [t]he underlying right to conflict free representation is effective assistance of counsel ․” (Citations omitted; internal quotation marks omitted.) Rogriquez v. Commissioner of Correction, 131 Conn.App. 336, 342–43 (2011). “Our Supreme Court has established the proof requirements where a habeas corpus petitioner claims ineffective assistance of counsel because of a claimed conflict of interest. Where ․ the defendant claims that his counsel was burdened by an actual conflict of interest ․ the defendant need not establish actual prejudice ․ Where there is an actual conflict of interest, prejudice is presumed because counsel [has] breach[ed] the duty of loyalty, perhaps the most basic of counsel's duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests ․ In a case of a claimed conflict of interest, therefore, in order to establish a violation of the sixth amendment the defendant has a two-pronged task. He must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer's performance.” (Internal quotation marks omitted.) Day v. Commissioner of Correction, 118 Conn.App. 130, 136–37, 983 A.2d 869 (2009), cert. denied, 294 Conn. 930, 986 A.2d 1055 (2010).
“The [United States Court of Appeals for the Second Circuit] has honed this test further. Once a [petitioner] has established that there is an actual conflict, he must show that a lapse of representation ․ resulted from the conflict ․ To prove a lapse of representation, a [petitioner] must demonstrate that some plausible alternative defense strategy or tactic might have been pursued but was not and that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests ․ Nevertheless, no lapse of representation should be found to have occurred when a foregone strategy or tactic either is against the petitioner's interest or is so insubstantial that even the most ardent and talented, conflict-free advocate would likely have avoided it ․ In short, the alleged foregone strategy must possess sufficient substance to be a viable alternative.” (Alterations in original; citations omitted; internal quotation marks omitted.) Santiago v. Commissioner of Correction, 87 Conn.App. 568, 584, 861 A.2d 70, cert. denied 273 Conn. 930, 873 A.2d 997 (2005). “An actual conflict of interest is more than a theoretical conflict ․ [T]he possibility of conflict is insufficient to impugn a criminal conviction ․ A conflict is merely a potential conflict of interest if the interests of the defendant may place the attorney under inconsistent duties at some time in the future ․ To demonstrate an actual conflict of interest, the petitioner must be able to point to specific instances in the record which suggest impairment or compromise of his interests for the benefit of another party ․ A mere theoretical division of loyalties is not enough ․ If a petitioner fails to meet that standard, for example, where only a potential conflict of interest has been established, prejudice will not be presumed, and the familiar Strickland 3 prongs will apply.” (Emphasis in original; internal citations omitted; internal quotation marks omitted.) Anderson v. Commissioner of Correction, 127 Conn.App. 538, 550, 15 A.3d 658, cert. granted on other grounds, 301 Conn. 921, 22 A.3d 1280 (2011).
“Cases involving conflicts of interest usually arise in the context of representation of multiple codefendants by one attorney where the attorney adduces evidence or advances arguments on behalf of one defendant that are damaging to the interests of the other defendant ․ A conflict of interest also arises [however] if trial counsel simultaneously represents the defendant and another individual associated with the incident and that representation inhibits counsel's ability to represent the defendant.” Santiago v. Commissioner of Correction, supra, 87 Conn.App. 583. Finally, “an attorney may [also] be considered to be laboring under an impaired duty of loyalty, and thereby be subject to conflicting interests, because of interests or factors personal to him that are inconsistent, diverse or otherwise discordant with [the interests] of his client.” (Citations omitted.) State v. Crespo, 246 Conn. 665, 689–90, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S.Ct. 911, 142 L.Ed.2d 909 (1999).
Reading the totality of the 39 paragraphs and subparagraphs of Count One of the Amended Petition liberally, the petitioner really advances only two distinct claims of conflict of interest against Attorney Zingaro. The first claim, and that which supports the majority of the allegations, is that “Attorney [Gene] Zingaro's simultaneous representation of the petitioner and his brother (Byron Bigelow) was an actual conflict of interest.” (Amended Petition, paragraph 29.) The petitioner asserts that this simultaneous representation was an actual conflict, because Byron Bigelow was arrested inside the condominium associated with the petitioner during execution of the search warrant that supports some of the drug charges brought against the petitioner under Docket No. CR08–0133512. The circumstances of this arrest, asserts petitioner, makes Byron Bigelow a co-defendant or, at a minimum, another person who had access to the condominium upon whom culpability for the drugs seized could be argued as a defense, but that the defense counsel failed or was unable to advance such theories as a result of his simultaneous representation of Byron Bigelow. (Amended Petition, paragraph 29.)
Attorney Zingaro and Byron Bigelow were both questioned extensively on the subject of their personal and attorney-client relationship by the attorneys for both parties. Byron Bigelow testified that he could not remember with any specificity when he first met the Attorney Zingaro, or when he first began to represent him as an attorney. Attorney Zingaro testified credibly that he could not remember the specific date he officially began representing Byron Bigelow, but strongly believed that he did not file his initial appearance until after the disposition of Damon Bigelow's cases, sometime “in late 2008 or early 2009.” The petitioner offered no evidence on this subject.4 Therefore, although the exact date could not be determined, the evidence presented supports a finding that any representation of Byron Bigelow by the respondent did not begin until after the petitioner's matters were concluded. As such, the petitioner's claim of conflict of interest on these grounds must fail. See, e.g., Santiago v. Commissioner of Correction, supra, 87 Conn.App. at 583.
In a slightly varied version of his claim of simultaneous representation, the petitioner also advanced the position that the mentoring relationship defense counsel developed with Byron Bigelow, the deep personal feelings defense counsel admitted to having for him, and defense counsel's admitted desire to assist Byron Bigelow to keep his criminal record clean in order to achieve his goal of entering the military amounted to a de facto representation of Byron Bigelow. For purposes of argument, the Court will accept this as a claim that Attorney Zingaro had a personal relationship with Byron Bigelow that prevented him from adequately exploring the defenses relating to Byron Bigelow being responsible for the drugs found within the condominium during execution of the September 26, 2008 search warrant. See State v. Crespo, supra, 246 Conn. 689–90 (issues personal to an attorney can create a conflict of interest).
Attorney Zingaro was very candid about having developed a deep personal relationship with Byron Bigelow, as well as the petitioner's mother, to helping Byron Bigelow through the process of meeting with military recruiters and ultimately entering the military, to having developed a special and personal relationship with Mrs. Bigelow, because they were both “in recovery” together, and even to having had Byron Bigelow and his mother over to his home for a Thanksgiving Dinner. From the credible evidence presented to this court, however, it was clear that all of this developed subsequent to the resolution of the petitioner's cases. Attorney Zingaro also admitted during his testimony to having gone down to the Danbury Police Department lockup to meet with Byron Bigelow after learning of his second arrest the night before Halloween 2008. Under questioning, however, both defense counsel and Byron Bigelow denied that there was any discussion about the factual circumstances of either of Byron Bigelow's arrests. Instead, the respondent testified that he “yelled at” Byron for approximately 1 hour, counseled him on a personal level about the dangers following in the footsteps of his older brother, the petitioner, discussed how the arrest could affect Byron Bigelow's aspirations to enter the military, and generally discussed Byron Bigelow's life direction and choices. Both Attorney Zingaro and Byron Bigelow further testified that they never discussed the facts and circumstances of the petitioner's criminal cases during any of their other conversations. Therefore, from the evidence presented, it was clear that the personal relationship defense counsel admitted to developing with Byron Bigelow did not occur, or begin to occur, until after the petitioner's cases had been resolved and, therefore, no personal conflict existed at the time he was representing the petitioner. State v. Crespo, supra, 246 Conn. 689–90. As such, the respondent's claim of conflict of interest on these grounds must also fail. Id.
Even if we assume for purposes of argument that defense counsel's relationship with Byron Bigelow rose to the level that it could be considered a conflict, the petitioner has still failed to prove his claim, because he could not meet the second prong of the test by showing “that a lapse of representation ․ resulted from the conflict ․ that some plausible alternative defense strategy or tactic might have been pursued, but was not and that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests.” (Emphasis added; internal quotation marks omitted.) Santiago v. Commissioner of Correction, supra, 87 Conn.App. 584. Trying to place blame on Byron Bigelow for the drugs found during the September 26, 2008 search of the condominium was simply not a plausible, viable defense based on the facts of the case. See Id. Notwithstanding the petitioner's claim during his testimony that he “had nothing to do” with the condominium at 142–F at 7 Padanaram Road for several months prior to the date of the search because of an active protective order on behalf of his ex-girlfriend, Crystal Blanchette, the affidavit supporting the September 26, 2008 search warrant indicates that police doing surveillance witnessed petitioner entering and exiting the common doorway shared by that condo unit on four separate occasions between September 7 and September 14, 2008, three of those occasions being in connection with controlled purchases of narcotics from the petitioner, a U.S. Postal worker reported to police that on or about September 9, 2008 a person identifying themselves as “Damon Bigelow” approached him at the mailboxes and indicated that he resided in that condominium unit, concerned business owners adjacent to the condo units identified petitioner to police as the person they believed to be engaging in drug deals in an adjacent parking lot, and the police indicated that the petitioner himself took them back to that very condominium unit after his arrest and directed them to $4,500 in hidden money. (Petitioner's Exhibit # 1, pp. 91–116.) Conversely, there is no mention of Byron Bigelow, or any other black male for that matter, in any of the police reports, statements or other information related to the investigation of drug dealing from the condominium unit. In fact, the police incident report related to the search of the condominium could actually be seen to raise a credible issue of Byron Bigelow's freedom of access to the condominium, because it indicates that when he arrived at the condo together with Crystal Blanchette, who petitioner insisted in his testimony to be living in the condominium instead of him, he had to knock on the door and be let inside by the police in order to gain entry. (Petitioner's Exhibit # 1, pp. 114.) Also, according to the September 26, 2008 incident report, the bags of heroin the petitioner had in his possession when arrested outside of the condominium allegedly in the midst of a drug transaction, the bags found in the possession of the alleged purchaser, who gave a sworn written statement that he was in the process of purchasing drugs from the petitioner when the police intervened, and the bags found within the condominium unit were all stamped with the word “Transformer,” a significant evidentiary link the petitioner would have had great difficulty, at best, extricating himself from. (Petitioner's Exhibit # 1, pp. 112–15.) Additionally, the 139 bags of heroin seized from the condo were all found within a location identified as “bedroom # 2,” the same bedroom petitioner took the police to after being arrested to retrieve the previously mentioned $4,500, which was hidden under baseball caps in a closet in “bedroom # 2.” (Petitioner's Exhibit # 1, pp. 112–15.) On the other hand, Byron Bigelow was found to be in possession of a small amount of marijuana, a marijuana grinder, and no monies. (Petitioner's Exhibit # 1, pp. 112–15.) The fact that neither the police nor the State's Attorney sought to pursue charges against Byron Bigelow for any of the contraband found within the condominium would also have presented another challenge to the petitioner's proposed defense tactic.
Therefore, in light of the substantial amount of evidence the State apparently could have presented pointing to no one other than the petitioner as responsible for the drugs found within the condominium, this Court cannot find that competent defense counsel would have considered offering Byron Bigelow as a “scapegoat” as a truly viable defense tactic. Santiago v. Commissioner of Correction, supra, 87 Conn.App. 584. As such, even if it were assumed that respondent had a personal relationship with Byron Bigelow, the petitioner's claim would still fail, because he could not prove any lapse in representation as a result. Id.
Therefore, as to Count One, the petitioner has failed to prove that there was any conflict of interest as a result of defense counsel's alleged simultaneous representation of Byron Bigelow. Day v. Commissioner of Correction, supra, 118 Conn.App. 136–37. The petitioner has also failed to prove that defense counsel had a personal relationship with Byron Bigelow that rose to the level of creating a conflict of interest, or, even assuming that such a personal relationship did exist, that the petitioner suffered from any lapse in his representation as a result of that relationship. Santiago v. Commissioner of Correction, supra, 87 Conn.App. 584.
b. Ineffective Assistance of Counsel Claim
“The longstanding test for determining the validity of a guilty plea is ‘whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.’ “ Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)).
[T]he decision to plead guilty before the evidence is in frequently involves the making of difficult judgments. All the pertinent facts normally cannot be known unless witnesses are examined and cross-examined in court. Even then the truth will often be in dispute. In the face of unavoidable uncertainty, the defendant and his counsel must make their best judgment as to the weight of the State's case. Counsel must predict how the facts, as he understands them, would be viewed by a court. If proved, would those facts convince a judge or jury of the defendant's guilt? On those facts would evidence seized without a warrant be admissible? Would the trier of fact on those facts find a confession voluntary and admissible? Questions like these cannot be answered with certitude; yet a decision to plead guilty must necessarily rest upon counsel's answers, uncertain as they may be. Waiving trial entails the inherent risk that the good-faith evaluations of a reasonably competent attorney will turn out to be mistaken either as to the facts or as to what a court's judgment might be on given facts.
That a guilty plea must be intelligently made is not a requirement that all advice offered by the defendant's lawyer withstand retrospective examination in a post-conviction hearing.
McMann v. Richardson, 397 U.S. 759, 769–70, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). “Where ․ a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases ․ [A] defendant who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.” (Citation omitted; internal quotation marks omitted.) Hill v. Lockhart, supra, 474 U.S. 56–57 (citing McMann v. Richardson, supra, 397 U.S. 771). Even if the petitioner is able to show that counsel's performance was constitutionally deficient, the petitioner must also meet the second prong of the test, which “focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the second prong of the test, the petitioner must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Id., 59; Johnson v. Commissioner of Correction, 285 Conn. 556, 576, 6 A.3d 827 (2008). “In its analysis, a reviewing court may look to the performance [1st] prong or to the prejudice [2nd] prong, and the petitioner's failure to prove either is fatal to a habeas petition.” Hall v. Commissioner of Correction, 124 Conn.App. 778, 783, 6 A.3d 827 (2010), cert. denied 299 Conn. 928, 12 A.3d 571 (2011).
Although the petitioner claimed during his testimony that he was prepared to go to trial on his matters, this “chest puffing” was simply not credible. Of the eight criminal and motor vehicle files pending against the petitioner, most involved police as direct witnesses to his alleged offenses, and the others had witnesses who gave sworn written statements against him. (Petitioner's Exhibit # 1.) Looking at just the four files pending against the petitioner that involve drug cases, police officers claim to have seized the drugs from his person on one occasion; (Petitioner's Exhibit # 1, pp. 51); to have witnessed him discarding the drugs on another; (Petitioner's Exhibit # 1, pp. 113); to have heard him admit to possession of drugs found on the floor of his car on another; (Petitioner's Exhibit # 1, pp. pp 25); to have purchased drugs directly from the petitioner while acting in an undercover capacity on two other occasions; (Petitioner's Exhibit # 1, pp. 56–59), and this court has already engaged in a substantial discussion above about the evidence the state apparently could have presented connecting the petitioner to the 139 bags of heroin found within the Padanaram Road condominium on September 26, 2008. (Petitioner's Exhibit # 1, pp. 91–116.) When considering only the four files relating to drug arrests pending against petitioner, and further limiting consideration to just the charges in those cases that carry minimum mandatory and/or consecutive sentences, the petitioner's exposure at trial was 46 years of minimum mandatory incarceration and 120 years to life maximum,5 and this does not take the remaining non-mandatory drug charges, the other files pending against him, or any possible sentencing enhancements the State could have sought against the petitioner because all of his drug offenses were committed while released on bond.6 In fact, by his own admission, and despite the fact that he has thirteen prior convictions dating back to 1993; (Petitioner's Exhibit # 1, pp. 70–76); the petitioner has never taken a case to trial. Although there is no guarantee the State would ultimately have been able to produce all of the evidence it claimed to have against the petitioner at the time of trial in any particular one of these cases; see McMann v. Richardson, supra, 397 U.S. 769–70; the petitioner in the present case has provided nothing credible to lead this court to believe that, facing eight separate cases and a mountain of compelling evidence, he was willing for the first time in his life to take his chances with trials in these cases as an alternative to accepting the State's offer. See Hill v. Lockhart, supra, 474 U.S. 59. As such, and for all of the reasons stated above, the petitioner has failed to prove his claim of ineffective assistance of counsel. Id.
Based on the foregoing, the petition for writ of habeas corpus is DENIED. Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within 30 days.
Hon. John M. Newson
1. FN1. In totality, the petitioner had ten (10) separate docket numbers pending against him, one being a criminal/motor vehicle combination case, representing nine (9) separate arrests.
2. FN2. The admission to this violation of probation was actually entered on September 24, 2008 at a time when the petitioner was self-represented.
3. FN3. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (petitioner claiming ineffectiveness of counsel must prove unreasonably deficient performance by counsel and prejudice, meaning counsel's deficient performance so undermined the proceeding that the result cannot be relied upon).
4. FN4. It is worth noting that, although the respondent testified to filing paper appearances in Byron Bigelow's matters, copies of these were not entered into evidence in by either party.
5. FN5. Between those cases, petitioner was charged with—6 counts of Possession with Intent to Sell, General Statutes § 21a–278(b), carrying a penalty of 5 yr. mandatory to 20 years each; 3 counts of Possession with Intent to Sell within 1500,' General Statutes § 21a–278a(b) carrying a penalty of 3 yrs. mandatory consecutive each to any sentence under General Statutes § 21a–278; 1 count of Possession of Narcotics within 1500,' C.G.S. § 21a–279(d), carrying a penalty of 2 yrs. mandatory consecutive to any conviction for possession of narcotics; and one count of Sale/Possession with Intent to Sell, General Statutes § 21a–278(a), carrying a penalty of 5 yrs. mandatory to life.
6. FN6. General Statutes § 53a–222. Violation of conditions of release in the first degree; Class D felony: (a) A person is guilty of violation of conditions of release in the first degree when, while charged with the commission of a felony, such person is released ․ and intentionally violates one or more of the imposed conditions of release. (b) Violation of conditions of release in the first degree is a class D felony.General Statutes § 53a–222a. Violation of conditions of release in the second degree: Class A misdemeanor: (a) A person is guilty of violation of conditions of release in the second degree when, while charged with the commission of a misdemeanor or motor vehicle violation for which a sentence to a term of imprisonment may be imposed, such person is released ․ and intentionally violates one or more of the imposed conditions of release. (b) Violation of conditions of release in the second degree is a class A misdemeanor.
Newson, John M., J.