Leonard Balcunas v. Warden, State Prison (2010)

HABEAS DECISION

THE COURT:  With regard to this case, both counsel are abundantly familiar with the case law as applicable.   Both made mention of the case law in their closing arguments.

There are a number of claims advanced by the petitioner.   They're set forth predominantly in an amended petition dated June 29, 2009, and based upon the evidence presented in the course of a number of days, the court certainly will make findings of fact.

Just by way of procedure, this matter commenced in June 2007.   The petitioner filed a petition for a writ of habeas corpus.   The matter came to trial on or about September 15, 2009, proceeded thereafter on September 23, 2009, November 12th of that same year, and finally, today, January 15, 2010.

With regard to findings, the court makes the following findings.

The petitioner was a defendant in a prosecution known as the State of Connecticut v. Leonard Balcunas in the Judicial District of Windham, which case proceeded to trial in 2006.   The petitioner presently is at liberty.   At all times referenced herein, the petitioner at trial was represented by Chief Public Defender Ray Canning of the Judicial District of Windham at Danielson.

At a time prior to trial, the petitioner pleaded not guilty and elected a trial by jury.   Thereafter, the petitioner elected a trial before a judge, and the matter, in fact, proceeded to a trial before the Honorable Judge Michael Riley.   A number of witnesses, including the petitioner, testified before Judge Riley.   The trial eventuated into a guilty finding, the petitioner having been charged with operating under the influence, in violation of Connecticut General Statute Section 14-227a(a)(1)

Thereafter, the petitioner entered a plea of guilty to a Part B information charging the petitioner with being a subsequent offender.   The petitioner was eventually sentenced by Judge Riley on February 27, 2007 to a term of imprisonment of 731 days, followed by 364 days of special parole and 500 hours of community service.   Thereafter, the petitioner did not appeal his case to any appellate court.   This action followed.

In proceeding to trial before the court and upon finding the petitioner guilty, this court finds that the trier of fact could reasonably have determined the following based upon evidence presented.

The court could have reasonably found that on Christmas Eve, December 24th, 2005, the petitioner, Mr. Leonard Balcunas, operated a motor vehicle in the town of Putnam.   At approximately 6:30 p.m., Connecticut State Police Trooper Paploski observed the petitioner operating his vehicle on a public road southbound on Route 21, observed the vehicle swerve over a center line, back to the right near a fog line and observed the vehicle swerve over the center line into the northbound lane and then back into the lane of travel.   There was a motorist at some point in time during the observation in the opposite lane of travel.

The trooper followed the vehicle down Route 21 southbound to the intersection of Route 44, at which time he observed the vehicle make a right on Route 44 westbound and followed the vehicle to the entrance of 1-395.   Another trooper, Erickson, observed the petitioner's vehicle from the intersection of Route 44 and 395, and in observing the vehicle, observed two individuals.   Trooper Erickson maintained visual contact from that point in time to the point where he executed a motor vehicle stop.

Upon approaching the vehicle, Trooper Erickson observed a female occupant in the passenger seat and identified the petitioner as the driver of his vehicle.   The petitioner had his seatbelt on.

At some point in time, a third trooper, Zmayefski, testified that he arrived at the location of the stop.   As Trooper Zmayefski approached the driver's side of the vehicle, he found the petitioner behind the wheel with the vehicle running with the keys in the ignition.   Upon engaging in conversation, the petitioner admitted driving the vehicle.   Trooper Erickson could hear the petitioner tell Trooper Zmayefski that he had consumed a few beers.   Upon further inquiry by Trooper Zmayefski, Mr. Balcunas declined to answer further questioning.   A fourth trooper, Juhola, subsequent to the petitioner being transported back to a barracks for processing, heard the petitioner say that he consumed three beers at a friend's house.

Three of the troopers testifying stated they could detect an odor of alcohol by way of smell.   Trooper Erickson testified he was approximately two to three feet away from the petitioner and smelled alcohol on his person.   The trooper stated he could smell the alcohol while the petitioner was inside the vehicle, when outside the vehicle, and during the petitioner's later refusal to submit to a breathalyzer test requested to be performed, three troopers testified that the defendant had slurred speech.   Trooper Zmayefski testified that the defendant's eyes were glassy, that he fumbled when requested to obtain his license and papers while seated in his vehicle.

Trooper Zmayefski and Trooper Juhola testified that during processing the petitioner became belligerent and argumentative.   Trooper Juhola, in addition, testified that he observed Mr. Balcunas seated in the processing room slumped over his chair.

Trooper Erickson testified that he observed the petitioner several times swerving over the center line on Route 44 westbound into the oncoming lane and then swerving back over the fog lane, almost off to the shoulder of the road.   He observed the petitioner straddling the center line.   Trooper Erickson also testified he activated his overhead lights and siren on his state issued cruiser in an attempt to persuade the petitioner to pull over.   The petitioner did not pull over for nearly a quarter mile, despite the display of lights and sirens.

The petitioner admitted not pulling over immediately, stating he was looking for a safe location to do so.

Upon investigating this event at roadside, there was evidence that Trooper Zmayefski conducted a test developed, which this court terms the horizontal gaze nystagmus test.   The test, in very plain speak, involves the use of a pen or a light upon the eyes of the subject looking for a deviation or a fluttering of the eye at a certain angle when requesting the subject to follow the pen or light in a smooth track.   The test itself has been admitted by numerous police officers and there exists a body of medical literature supporting the proposition that a fluttering of the eye occurs at a certain angle on following the pen or light to suggest impairment by the subject.   The test is routinely used as a basis in the officers' arsenal of investigative tools to determine whether probable cause exists to place a subject under arrest for operating under the influence in violation of our general statute 14-227a.

In making an arrest for operating under the influence, this court finds that an officer takes into account the totality of the circumstances as of that point, the observations of the officer or brother officers, which would include historical information related between officers, troopers as to the observations of a subject on a roadway, odor of alcohol, demeanor, physical characteristics, including glassy eyes, slurred speech, any statements by the subject whether the subject admitted to consuming alcohol or drugs.

In this instance, Trooper Zmayefski had experience in administering the test.   In addition to Trooper Zmayefski testifying to the administration of the test, the court, Judge Riley, heard testimony from Chris Bartolotta about the use and administration of the so-called HGN test.

This court makes a finding that the HGN test has been deemed scientifically reliable for purposes of admissibility in Connecticut courts without the necessity of conducting a hearing, a so-called Porter hearing, applying the principles under the Daubert analysis.   Specifically, the Connecticut Appellate Court in two cases, State v. Balbi, I believe it's B-a-l-b-i, 89 Conn.App. 567, 2005, and State v. Commins, C-o-m-m-i-n-s, 83 Conn.App. 496, 2004, stand for the proposition that the HGN test so-called is admissible.   This court also finds that there is an accepted body of literature to suggest there is a correlation between the HGN test and its results and blood alcohol level.

This court makes a finding that in administering the BAC test to Mr. Balcunas-Excuse me, strike that-in administering the HGN test to Mr. Balcunas on the night of this stop, the troopers did so in the course of their normal routine in gathering evidence of a potential DUI, or operating under the influence stop.

The court needn't review the detailed history that was related not only on direct examination, but on cross-examination before the trial court about the trooper's experience in the administration of the test.   This court makes a finding that Mr. Canning, at trial, did not move to suppress admissibility of the HGN test before the trial court.   This court makes a further finding that Mr. Canning did not present testimony or legal expert on the administration of the HGN test, and I can include in that array any police expert on that particular issue.

With regard to this case, the court also finds that Mr. Canning was appointed to represent Mr. Balcunas in his capacity as public defender.   He had familiarity with Mr. Balcunas, having represented him sometime prior to this arrest.

This court heard testimony from Mr. Canning, who appeared back in September, and would note the following.

Mr. Canning, at present, is the Chief Public Defender in Danielson, having practiced some thirty years, much of that time in the defense of criminal and motor vehicle matters.   He was a public defender part-time back in 1974.   He became head of the Public Defender Office at approximately 1989.   In his charge as public defender he represented numerous individuals, in addition to supervising four other attorneys.

With regard to Mr. Balcunas, the court finds that at the time he represented Mr. Balcunas in '05, Mr. Canning had known Mr. Balcunas for approximately ten to twelve years.   Mr. Canning was familiar with some of Mr. Balcunas's history, including a series of prior motor vehicle and/or motorcycle accidents.   Mr. Canning was aware that Mr. Balcunas had lost a leg in a motor vehicle accident and had previous history with operating under the influence in Connecticut.

At the time he initially accepted appointment, this court finds that Mr. Canning was told by Mr. Balcunas that Mr. Balcunas was going to seek private counsel.   The court finds that Mr. Canning did not undertake an extensive investigation initially into the allegations which eventuated into the trial.

This court finds at some point in time Mr. Balcunas was insistent on proceeding to trial and made an election to change his jury election to a court election.   This court accredits the testimony of Mr. Canning that he advised Mr. Balcunas against such a decision, but it was Mr. Balcunas who insisted on proceeding to a courtside trial for reasons including scheduling and that, in the words of Mr. Canning, Mr. Balcunas wanted to get the matter heard or done.

In the course of representing Mr. Balcunas, this court finds that Mr. Canning obtained all reports and records associated with the prosecution of Mr. Balcunas.   He reviewed those reports with his client and developed a defense strategy certainly before the commencement of evidence.   The court finds that Mr. Canning had requested Mr. Balcunas to obtain medical records regarding his suspected or known accidents, or injuries related from those accidents.   This court further finds that Mr. Balcunas was at liberty during much of the pretrial process and Mr. Balcunas did not obtain any medical records.

The court finds that in talking with Mr. Balcunas, Mr. Canning was not aware of any cognitive deficits.   The court credits Mr. Canning's testimony that there were no challenges in understanding things during representation.   Mr. Canning knew that Mr. Balcunas suffered some type of head injury, but, according to Mr. Canning, displayed no cognitive deficits.

Mr. Canning was also aware that Mr. Balcunas had some type of eye problem and it was believed that the defense strategy would attempt to defeat the significance of the HGN test on some basis.   In doing so, this court finds that Mr. Canning did, in fact, consult an optometrist, a Dr. Robert McNeil, who Mr. Canning used in the past.   He discussed aspects of the case with Dr. McNeil, and as a result of that discussion and a request from Dr. McNeil to review any records, none of which were forthcoming, it was apparent that Dr. McNeil could offer no assistance to Mr. Canning in his defense of Mr. Balcunas.

The court finds that Mr. Canning made the determination after research and consultation that head injury alone could not necessarily-- or, put another way, I'll strike that-- head injury alone might be insufficient to discredit an HGN test.   The court accredits Mr. Canning's testimony that he considered attacking the admissibility of the HGN test, but Mr. Canning was aware of the case law which the court cited which supports the proposition that the tests are admissible and criticism goes to the weight of the test rather than the admissibility of HGN test.   Canning believed that the weight according to the test might not be as significant if Canning, with the assistance of his own client in his testimony, could establish a basis to discredit the HGN based upon the self-reported history by Mr. Balcunas of head injury.

The court also accredits Mr. Canning's testimony that he made a tactical decision to, in his words, make the HGN evidence as small as possible;  the less testimony, the better.

In proceeding to a judge trial, it was Canning's determination that less technical evidence would be necessary than that put forward before a jury of presumably lay individuals.   Canning made the determination that the testimony regarding HGN wasn't overwhelming and that it could possibly be defeated.

Suffice to say, this court makes a finding that the trooper, or troopers did make a determination that Mr. Balcunas had nystagmus at the time the test was administered.   It was counsel's belief that had he, Canning, objected to the admissibility, the judge would likely not sustain the objection.

The court finds, upon review of the record, that Mr. Canning engaged in vigorous cross-examination of all of the troopers, including the administration and the methods employed regarding the HGN test aspects of the National Highway Transportation Safety Administration's recommendations for protocols in the administration of the HGN, but that Canning understood Connecticut viewed HGN as scientific evidence.

To quote Mr. Canning, “I thought I argued with Judge Riley as much as I could about allowing Bartolotta to testify.”

Although Canning thought neither Bartolotta nor Zmayefski were expert in the area of HGN, Canning had a strategy that by presenting Mr. Balcunas, he hoped the judge would accredit Mr. Balcunas more than the troopers.

As part of this strategy, the court finds that Mr. Canning discussed this with Mr. Balcunas and Mr. Balcunas assented to the strategy specifically to testify on his own behalf, and, in so doing, relate the historical evidence regarding head injury and how it affected him in the course of presenting that before the finder of fact.   The court accredits Canning's testimony that Judge Riley would not exclude anything regarding the testimony of Zmayefski and Bartolotta.   This court finds that it was a tactical decision to not pursue a motion to suppress and, frankly, given the evidence in the record for the trial court, this court finds that had any motion been filed, such motion would not have been successful.

With regard to the particular claims, the court would note the following.

Claim one is that there was insufficient evidence upon which to support a conviction.   This court has reviewed the evidence before the trier of fact and find that there was factually sufficient evidence to sustain a conviction of operating under the influence, and with regard to the significance or lack thereof of the HGN test, this court finds, even in the absence of the HGN test, the court finds overwhelming evidence of guilt in violating 14-227a(a)(1), or as grounds for same, the reason petitioner's own counsel indicated, Mr. Balcunas was convicted, in essence, of common law drunk driving.

It is well established and the case law is clear that evidence certainly can substantiate a finding of conviction such as that heard by the trial court.   This court will not review the evidence ad nauseum, other than to state there was significant odor of alcohol, there were observations by multiple troopers of erratic driving, there was admission of consumption of alcohol, notwithstanding the absence of any field tests due to the apparent physical problem of Mr. Balcunas not having a leg.   In addition, the court reviewed the refusal to take the breathalyzer test and in accordance with Connecticut law considered same in reaching its decision.

In short, much has been made in this proceeding by legal, and medical experts about the administration of the HGN test and opinions thereon.   This court finds all of that analysis interesting, but not determinative of the issue here on prejudice for the reason that the court does not find a basis to find an absence of sufficient evidence in the absence of the HGN test.

The court notes in the record the testimony of one of the petitioner's experts, Dr. Citron, who, although well-credentialed in the area of HGN, ultimately could not state with reasonable degree of medical probability that any history of injury to Mr. Balcunas's head contributed in any way to HGN.

The court deals with probabilities, not with speculation, and even had a doctor been called, or a police witness expert called, or a legal expert called on the issue of HGN, even assuming arguendo counsel would succeed on excluding the HGN, there was sufficient basis upon which to find guilt under the common law subsection of operating under the influence.   For that reason, claim one fails, both as a claim of sufficiency of evidence, and the claim is posited as a due process claim, there is no violation based on a claim of insufficiency of evidence of constitutional magnitude either under the due process clause of the Connecticut Constitution or United States Constitution.

Claim two is that the petitioner's constitutional rights were violated.   In setting forth this claim, the petitioner incorporates the prior paragraphs from claim one in his second claim.   The petitioner in this claim state that he did not waive his right to a jury trial knowingly and intelligently and voluntarily.   With regard to this claim, this court finds that it was Mr. Balcunas who insisted on proceeding to a court trial and this court makes a further finding that Mr. Canning did explain the consequences and potential ramifications of a courtside trial versus jury trial and that for some reason unclear to this court Mr. Balcunas wanted to decide his case or have it decided post haste and, thus, proceeded to a jury trial-excuse me, proceeded to a court trial.   There's nothing on the record to suggest that Mr. Balcunas in his decision was not with full consultation of counsel, knowing the consequences of the decision.

With regard to the claim that this matter should have been-this should have been an issue on appeal, the court does not find any merit to that claim with regard to any claim of appeal, and there is a further claim that Mr. Balcunas wasn't advised of his right to an appeal.   This court takes notice of the decision in the matter of Small v. Commissioner.   Whether or not Mr. Canning talked extensively about Mr. Balcunas's right of appeal is of no consequence where the petitioner has not shown any prejudice that had any issue been advanced to the appellate court, either the issue of a motion to suppress, the issue of admissibility of the HGN, the issue of challenging the officers or troopers qualifications, the issue of sufficiency of evidence, the issue of claimed non-waiver of the jury trial, or knowing waiver, none of those issues would likely have been successful under the standards set forth in Small, so there is no prejudice in that regard.

This court does make a finding that Mr. Balcunas was advised post conviction of his appellate right and chose not to pursue an appeal.   Clearly the record is thin as to the extent of discussion between Mr. Canning and Mr. Balcunas.   Again, because of an absence of prejudice, the court needn't reach the issue of deficient performance regarding the issue of appeal and whether or not Mr. Canning required further discussion with his client.

Claim three sets forth a claim of ineffective assistance of trial counsel.   The parties are guided by the cases of Strickland v. Washington and Ledbetter v. Commissioner.   In establishing a claim for ineffective assistance of counsel, the petitioner must establish that there is both deficient performance and prejudice and absence of either results in the claim failing.   In reviewing such a claim, there is a strong presumption of adequacy by the trial attorney and it is a difficult task for the petitioner to establish ineffective assistance of counsel.

Here the petitioner claims specifically in paragraph 33 that trial counsel Canning failed to adequately counsel the petitioner regarding whether to waive his constitutional right to a jury trial.   This court finds the evidence on that issue lacking for reasons already stated.   This court finds that Mr. Canning and Mr. Balcunas had a prior relationship, communicated freely with one another.   There appeared to be no cognitive impairment to Mr. Canning in Mr. Balcunas's ability to understand him or the evidence which he faced.

(B) alleges that counsel failed to move to suppress the test, the HGN test.   The court already made findings regarding that issue and there is no prejudice because of counsel's absence of filing a motion to suppress the HGN test.

(C) alleges that he failed to limit the admissibility of the evidence of the HGN test.   The court finds no deficiency regarding this claim.   This was a courtside trial and there's no reason to conclude the court did not consider the HGN test for the purpose indicated with prejudice somehow to the petitioner and any other aspect.   Any criticisms to the HGN test would go to the weight and not the admissibility.

It's alleged in paragraphs 33(d), (e) and (f) that trial counsel failed to conduct adequate cross-examination of Trooper Michael Zmayefski, Trooper Mark Juhola and Detective Chris Bartolotta.   The record is clear that Mr. Canning engaged in vigorous cross-examination of each of the witnesses.   It has not been shown that any additional cross-examination would have likely created a different result.   The scope of cross-examination is one that is left to the discretion of the trial attorney.   There's no reason to find any violation of constitutional dimension based upon the record here.

33(g) alleges that trial counsel failed to adequately present evidence to discredit evidence of the HGN test.   This court makes a finding that counsel conducted a defense on this issue in several respects by aggressive cross-examination and by also presenting the direct testimony of Mr. Balcunas.   There is no evidence before this court that had counsel submitted any medical evidence, reports or medical opinion, that any such evidence would have changed the outcome.   Indeed, this court makes a finding that Mr. Balcunas had at least three accidents prior to December 24, '05, but there is insufficient evidence to determine that Mr. Balcunas suffers from any kind of brain injury so-called, traumatic brain injury, or any neurological physical or mental impairment which would render the finding of any HGN test administered to be unreliable.

The court credits the testimony of the respondent's expert, Dr. Jack E. Richman, on the issue that in many instances people who have head injury recover from that injury.   Dr. Richman, in his many years on staff, not only as an optometrist, but as a member of a trauma team and brain injury team in particular, had extensive experience evaluating patients for the existence of head trauma, traumatic brain injury, neurological problems, at least insofar as determining the necessity for further diagnostics, as well as contributing to treatment plans for such individuals.

The reason for this commentary is that no doubt Mr. Balcunas had significant motor vehicle events which, not the very least, resulted in the loss of a limb, but, again, there is just insufficient evidence to conclude that the presentation of any expert testimony by an optometrist, ophthalmologist, or any other consultant would have altered the outcome here, and for that reason and those reasons cited, the court finds unproven 33(g) and also 33(h) where it's alleged that trial counsel failed to present evidence of the petitioner's medical condition, while, in fact, trial counsel did present evidence through the testimony of Mr. Balcunas.

With regard to (i), it's alleged trial counsel failed to present evidence that the petitioner was not intoxicated.   This court cannot speculate.   The evidence on the record is to the contrary, so the court finds that claim to be unproven.

33(j) alleges that trial counsel failed to present expert testimony on the irrelevance and unreliability of the HGN test for the purpose of determining whether the petitioner committed the offense of operating under the influence.   For reasons already stated, that claim is unproven.

With regard to 33(k), it's alleged that trial counsel failed to adequately advise his client about whether to testify.   This court makes a finding that it was central to the defense case that Mr. Balcunas testify and to testify about his history of head trauma if the petitioner was to in any way attempt to discredit any of the observations of the investigating troopers or detectives.   This court finds that there's been no showing that Mr. Balcunas did not appreciate the decision to testify or its consequences.   The court notes that it reviewed Mr. Balcunas's testimony in full, as well as Mr. Balcunas's comments to the court at sentencing and at other times.   None of the testimony suggests an inability to understand advice of counsel or comments by the court.   For those reasons, 33(k) is unproven.

It's alleged in 33(l) that counsel failed to perfect an appeal from the court's judgment.   For reasons already articulated, there is no prejudice.   The court need not determine the issue of deficient performance where it has not been shown that had the petitioner appealed on any issue preserved or unpreserved under State v. Golding such issue would have been successful.

In digressing for a moment, this court finds inapplicable the notion that the HGN test could be suppressed under Connecticut General Statute Section 14-227a(c).  The statute does not make reference to the HGN test whatsoever and, again, this was a common law drunk driving case.   This court finds that no reasonable jurist upon the filing of such motion would grant such a motion to suppress and the court is not aware of any case law in support of such proposition, so the failure of counsel to pursue such a motion does not make for a successful claim here.

It's alleged in paragraph 34 that the petitioner was prejudiced and that the petitioner would not have testified at trial had he been further advised or advised in some other fashion.   There's insufficient evidence to persuade this court on that claim.

In addition, there's insufficient evidence that had he appealed, as is alleged in paragraph 34(f), on some bases he would have prevailed.

For the record, the court notes that the trier of fact is not bound by the opinion of any expert witness.   The evaluation of testimony before this court is the sole province of the trier of fact.   A habeas court and this court heard from a number of witnesses who clearly were examined in different fashion than occurred at trial, and that includes Troopers Zmayefski and Bartolotta.   In addition, the petitioner presented testimony from a Dr. Citron and an Attorney Jim, or J. Ruane.

With regard to the court's rejection of expert testimony, the parties are directed to the decision of Brownstein v. Spilke, 117 Conn.App. 761, a 2009 Appellate Court decision.

Suffice to say, with regard to Mr. Ruane, it is clear from the record that he is an experienced attorney in the area of defense of criminal and, in particular, operating under the influence matters.   Mr. Ruane opined that he, as an attorney, would have had a client sign a release to obtain medical records as opposed to requesting a client bring them in.   This court finds that opinion to be inconsequential for reasons apparent in other evidence in this record.

Much discussion in testimony was had on the issue of HGN from Attorney Ruane and also Dr. Joseph Citron, a licensed physician and board certified ophthalmologist, all of which this court finds ultimately not helpful on the analysis where it is clear that unlike the theory or claims that are advanced here or the statement of Attorney Ruane, this court agrees patently with the statement of the respondent's counsel that HGN was but one in many factors in this case, and furthermore, in reviewing the sentencing transcript by the trier of fact, it is clear the court took into account the totality of the circumstances of the arrest, including all of the observations by the officers and troopers, the odor of alcohol, the refusal to take the breath test and what we call common law factors.

Not to be lost in this analysis is the recognition that a trial attorney who tries an operating under the influence case has the professional discretion and judgment of whether to add experts as witnesses or present experts at trial.   In this court's view, the standard of care for an attorney in trying such a case as this does not require the retainment of experts.   In this court's view, Attorney Canning fulfilled his charge by in fact consulting a doctor on an issue in the case.   Too much is made, and this is on the record, about the retainment and consultation of expert witnesses.   This concept, in my view, does not give adequate recognition to the value and ability of a finder of fact, be it a judge or a jury, to look at the plain significance of evidence before it.   In too many instances it is claimed that counsel needed to retain experts, present experts, and if presented, would have changed the outcome.   In this court's view, cases that are built upon experts, finders of fact often disregard, experts rule out one another, and what it comes down to is an assessment of credibility of the investigating officers and also the credibility of the defendant in this case.   I think it was cogent strategy, indeed, to present Mr. Balcunas.   As a trial attorney for 23 years, there were few criminal cases I tried where I didn't call a defendant.   That cuts against the patent opinion expressed in this court by many trial attorneys.   Too much emphasis is given, therefore, to the issue of experts.   There is no evidence to indicate that had any expert been presented in any way one could conclude there would be a different outcome.   There is no evidence to conclude that Mr. Balcunas was deprived of a fair trial or competent representation, as is required under the Connecticut Constitution, the United States Constitution, any aspect thereof.

A petition for writ of habeas and the trial thereon is not a retrial on the merits of the case.   An analysis of the record below indicates an experienced trial attorney who was not successful when faced with a strong case presented by the state.

Understanding that this case will likely proceed to an appeal, the court is requesting a full transcript of this on bench ruling.

For all of the reasons indicated and in all respect, the petition for writ of habeas corpus is denied.   Judgment may enter in favor of the respondent.

The petitioner, if he files an appeal, is to prepare a judgment file within 30 days.   I'm requesting that notice of appeal rights be prepared for the petitioner and that he be handed copies of same, and if there is a request to extend the appeal period until after notice of requesting and receiving a transcript of this proceeding is received, this court has no objection to that.

Anything further at this time?

ATTY. KIRSCHBAUM:  No, Your Honor.

ATTY. BENTLEY:  No, Your Honor.

THE COURT:  All right.   Mr. Kirschbaum, is there a request with regard to the tolling of any appeal period?

ATTY. KIRSCHBAUM:  Yes, Your Honor.

THE COURT:  All right.   So the court will incorporate that also in the record, and bear with me one moment.

All right.   With that, this matter is concluded.   Court stands adjourned until 10 a.m. Tuesday morning.

Nazzaro, J.

Nazzaro, John J., J.