149727 v. Warden, State Prison (2010)

MEMORANDUM OF DECISION

On March 7, 2006, the petitioner, Lucas Betancourt, filed a petition for a writ of habeas corpus, which was amended on July 28, 2008, and again on March 26, 2010.   The petitioner claims that he was denied the effective assistance of trial counsel in violation of the sixth and fourteenth amendments to the United States Constitution and article first, § 8, of the Constitution of Connecticut in a number of ways, including, but not limited to, the following:  counsel failed to investigate and prepare the case for trial and adequately cross-examine certain witnesses;  counsel failed to file pretrial motions, including a bill of particulars;  counsel failed to file a motion in limine to preclude mention of the petitioner's minor daughter's identity or presence during the events in question;  counsel failed to object or make motions for a mistrial or new trial based on the states references to the presence of the petitioner's minor daughter during the events in question.   Additionally, in count five of his petition, the petitioner claims that newly discovered evidence regarding a codefendant entitles him to a new trial.   For reasons stated more fully below, the petition is denied.

The matter came to trial on May 26, 2010.   The Court first heard the respondent's motion to dismiss counts three and four of the petition and the petitioner's objection thereto.   The respondent also orally addressed count five, which had been added in the second revision of the petition.   The petitioner responded with an oral objection.   After full argument, the Court granted the respondent's motion, dismissing counts three, four and five of the petition.   The petitioner then proceeded to trial on counts one and two.   The Court heard testimony from the petitioner, Sandra Barone, a correctional counselor employed by the department of corrections, Richard Laffargue, an employee of the New Haven Community Correctional Center, Richard Smith, an assistant clerk in the Waterbury Superior Court, Stephen Isles, a temporary paralegal employed by the Waterbury Superior Court, Attorney Thomas Farver, testifying as an expert, and Attorney Errol Skyers, the petitioner's trial counsel.   Among other documents, the petitioner entered into evidence the trial transcript, sentencing transcript, and several documents from the department of corrections.

The Court has reviewed all of the testimony and evidence and makes the following findings of fact.

FACTS

1. The petitioner was the defendant in a case in the judicial district of Waterbury with a docket number of CR05-0337867, in which he was charged with (1) kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(B), (2) conspiracy to commit kidnapping in the first degree in violation of General Statutes §§ 53a-48 and 53a-92(a)(2)(B), (3) burglary in the first degree in violation of General Statutes § 53a-101(a)(2), (4) conspiracy to commit burglary in the first degree in violation of General Statutes §§ 53a-48 and 53a-101(a)(2), (5) robbery in the second degree in violation of General Statutes § 53a-135(a)(1) and (6) conspiracy to commit robbery in the second degree in violation of General Statutes §§ 53a-48 and 53a-135(a)(1).¹

2. At all times in the criminal matter, the petitioner was represented by Attorney Errol Skyers.   Attorney Skyers has been practicing law in Connecticut since 1992 and has tried both civil and criminal jury cases.   Seventy-five percent of his practice is related to criminal law.

3. After a jury trial, the petitioner was convicted as charged.

4. On February 23, 2006, the trial court, Cremins, J., sentenced the petitioner to a total effective sentence of twenty-five years to serve.²

5. The petitioner appealed from the judgment of conviction.   On appeal, he claimed that the evidence was insufficient to support his conviction and that the prosecutor had engaged in impropriety during closing argument by arguing facts not in evidence, thereby appealing to the emotions of the jurors and bolstering the credibility of the codefendant who testified against the petitioner.   The Appellate Court affirmed the judgment of the trial court, and the Connecticut Supreme Court denied a petition for certification.   See State v. Betancourt, 106 Conn.App. 627, 942 A.2d 557, cert. denied, 287 Conn. 910, 950 A.2d 1285 (2008).

6. As stated by the Appellate Court, the jury could have reasonably found the following facts regarding the underlying offenses:  “On January 29, 2005, the defendant drove his two nephews, Ricco Torres and Felipe Buitrago, his friend, Michael Meteiver, and his own six-year-old daughter to a McDonald's restaurant in Waterbury in a green Ford Escort.   While at McDonald's, the defendant and Meteiver had a discussion about stealing guns from the home of Meteiver's father-in-law, Mario Fusco, the victim.   Meteiver was aware that the victim's son had a gun collection and that it had been kept at the victim's home.   The defendant then drove his nephews, Meteiver and his daughter to the victim's home.

7. “After arriving at the victim's home, the defendant ordered everyone except his daughter out of the car.   The defendant directed Buitrago to watch from the front door and to enter the house last.   The men then knocked on the victim's door, and when the victim answered, the men pushed themselves into the house, knocking the victim to the floor and breaking his glasses.   After entering, the defendant and Torres bound the victim's hands and feet with duct tape and covered his head with a pillowcase.   The defendant then asked the victim where he kept his guns and searched through the house looking for them even though the victim explained that he no longer kept his son's guns in his house.   While searching, they stole $150 as well as the victim's bank card and a handgun.   The defendant and Meteiver demanded of the victim the personal identification number for his bank card.   After receiving it, the two men went to a Webster Bank automatic teller machine and tried unsuccessfully to withdraw funds from the victim's account.   They then returned to the victim's home.   After arriving, the defendant, Meteiver, Buitrago and Torres returned to the car where the defendant's daughter was waiting, and the defendant drove to his apartment in Naugatuck where he left his nephews and his daughter.   The defendant then left the apartment with Meteiver.   When he returned, he gave Buitrago the gun that either he or Meteiver had stolen from the victim's home and told Buitrago to put the gun in a drawer under the bed of the defendant's daughter.   The defendant left the apartment again.

8. “In the meantime, the victim had called the police.   An interview with the victim led the police to believe that Meteiver might be involved in the break-in because he was the only person who knew the victim had kept his son's gun collection in his home.   The police found Meteiver and arrested him on an unrelated charge.   During the search of Meteiver's person, the police found the keys to the victim's car and house.   Meteiver admitted that he had taken part in the break-in at the victim's house and directed the police to the defendant's apartment to find the other individuals involved.

9. “The police arrived at the defendant's apartment with a search warrant, where they found and arrested Buitrago and Torres.   Buitrago told the police that the gun they were looking for was in a drawer under the bed of the defendant's daughter.   The police found the gun, which was the gun taken from the victim's home, as well as some money and mail addressed to the defendant.   A little while later, the defendant arrived at his apartment and was arrested.

10. “The following day, the police found a green Ford Escort in the driveway next to the defendant's apartment.   The police obtained a search warrant for the car and found a roll of duct tape inside.   An analysis of the duct tape revealed that the torn end of the duct tape roll matched the torn end found on the victim's socks.”  State v. Betancourt, supra, 106 Conn.App. 629-31.

11. Additional facts will be discussed as needed.

DISCUSSION

In counts one and two of the petition, the petitioner claims that his trial counsel rendered ineffective assistance in numerous ways.  “To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).  Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong.   To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed ․ by the [s]ixth [a]mendment ․ To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different ․ The claim will succeed only if both prongs are satisfied ․ It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203, cert. denied, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).

The petitioner first alleges that Attorney Skyers infrequently communicated with him prior to his trial and thus, did not adequately prepare for trial.   Sandra Barone, a correctional counselor, testified at the habeas trial that the petitioner was at MacDougall Walker Correctional Institution from February 24, 2005 to October 27, 2005, at which time he was transferred to New Haven Correctional Center.   She further testified, based upon records kept by the department of correction, that while the petitioner was at MacDougall-Walker Correctional Institution he called Attorney Skyers numerous times but was only able to reach him on one occasion, September 20, 2005.³  She also testified that he did not receive any visits from Attorney Skyers during that time.   Richard Laffargue, an employee of New Haven Correctional Center, testified at the habeas trial that the petitioner was at New Haven Correctional Center from October 27, 2005 to November 17, 2005 and that based upon records kept by the department of correction, Attorney Skyers only visited the petitioner once during that time, on November 6, 2005.⁴  He was unable to locate any phone logs and thus, could not say whether the petitioner tried to call Attorney Skyers during that time period.

The petitioner confirmed, through his testimony at the habeas trial, that Attorney Skyers never visited him while he was at MacDougall-Walker Correctional Institution and that he only visited him once while he was at New Haven Correctional Center.   He also confirmed that he only talked to Attorney Skyers once over the telephone while he was at MacDougall-Walker Correctional Institution.   Apart from these communications, he testified that he received two letters from Attorney Skyers.⁵  He also acknowledged that Attorney Skyers and he had an opportunity to talk during his court appearances but claimed that they did not talk every time he was brought to court and that they only really had one good discussion in the bullpen.   He further acknowledged receipt of some discovery from Attorney Skyers.   The petitioner also testified that Attorney Skyers conveyed an offer of twenty years to him, which he rejected, and that he wrote to Attorney Skyers all the time.

Although he stated it was hard to recall, Attorney Skyers testified at the habeas trial that he communicated with the petitioner by meeting with him at the lockup at the courthouse and by letter.⁶  He did not recall speaking with the petitioner by phone nor did he have an independent recollection of his visit with the petitioner at New Haven Correctional Center but he did not dispute either.   He further testified that he gave the petitioner all the materials that he had gotten from the state and that the petitioner made suggestions of how to approach the evidence.⁷  While he recalled discussing the state's evidence at various times with the petitioner, he could not specifically recall whether he reviewed all the elements of the offenses with the petitioner.   He did recall discussing whether the petitioner should testify and reaching a mutual decision that he should not.

Attorney Thomas Farver, an expert in criminal trial practice, testified on behalf of the petitioner at the habeas trial that in order for a defense attorney to adequately prepare for trial he needs to have a meaningful dialogue with his client leading up to the trial.   He opined that it is “tragically late” and “certainly” below the standard of care for a defense attorney to have his first substantive dialogue with his client on the night before trial.⁸  He did, however, acknowledge that it is not uncommon for a defense attorney to have a substantive discussion with his client the night before trial in order to refresh things in his client's mind.

Based upon the above, this court finds that the petitioner has not met his burden in establishing either deficient performance or prejudice.   Having a substantive conversation with one's client for the first time on the night before trial likely would constitute deficient performance.   However, those are not the circumstances in the petitioner's case.   Although Attorney Skyers had minimal communication with the petitioner while he was at the correctional facilities, he had other opportunities to communicate with him.   According to both his testimony and the petitioner's, they had discussions at the court house and communicated by letter.   It is clear from the testimony at the habeas trial and the evidence submitted that there was a meaningful dialogue between the petitioner and Attorney Skyers.   The petitioner was aware of the state's evidence and actively participated in his defense.   He suggested courses of action, as evidenced by the plan of action he wrote for Attorney Skyers ⁹ and Attorney Skyers' September 16, 2005 letter to him, wherein Attorney Skyers writes, “[A]t your direction I have ordered the transcripts of the guilty pleas that were entered by your codefendants.” ¹⁰  Additionally, the evidence demonstrates that the petitioner and Attorney Skyers discussed such substantive issues as a possible plea bargain and whether the petitioner should testify in his own defense.

In any event, regardless of the amount and quality of the communication between the petitioner and Attorney Skyers, there is no evidence before this court establishing that Attorney Skyers' failure to communicate with the petitioner as frequently as the petitioner would have liked prejudiced the petitioner's defense in any fashion.   To the contrary, the record reveals that Attorney Skyers was prepared for trial.¹¹

The petitioner next claims that Attorney Skyers failed to investigate his case, including hiring an investigator and a forensic investigator.  “[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary ․ The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions.   Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant.   In particular, what investigation decisions are reasonable depends critically on such information.”   Strickland v. Washington, supra, 466 U.S. 691.  “To succeed in his attack on the adequacy of counsel's pretrial investigation, the petitioner must show both that the investigation was inadequate, not merely imperfect ․ and that, had it not been for the inadequate investigation, there is reasonable probability that the outcome would have been different.”  (Citation omitted.)  Williams v. Bronson, 21 Conn.App. 260, 267, 573 A.2d 330 (1990).  “The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner.”  Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001).

The petitioner maintains that Attorney Skyers should have hired an investigator, including a forensic investigator to fingerprint the gun seized from the petitioner's home.   He testified at the habeas trial that he believes if his fingerprints were not found on the gun he would have been exonerated of all the charges lodged against him.   He also implied that he had an alibi, mentioning his daughter and his employer.   Attorney Skyers testified at the habeas trial that their defense was one of denial and that he did not hire an investigator because there was a finite number of people involved in the incident, including a victim who could not identify the petitioner and two of three codefendants who in all likelihood were not going to testify.   He further testified that he spoke with the attorneys of all the codefendants and that he would have presented an alibi defense if there was a factual basis for one.   As for having the gun fingerprinted, Attorney Skyers testified that he did consider hiring a forensic criminalist to counter any evidence that state might produce linking the petitioner to the gun, but once he learned that the state did not fingerprint the gun he decided not to pursue it as “[he was] not going to suggest that there [were] any fingerprints at all.” ¹²  Attorney Farver testified that as a general proposition any defense attorney who is planning to go to trial should use an investigator.   He also explained that there are numerous considerations in determining whether to fingerprint a gun, i.e., how the gun was or was not used, whether there is any chance the client may have handled the gun.   In other words, it is a tactical decision.

Again, the petitioner has failed to meet his burden in establishing either deficient performance or prejudice.   Even though Attorney Skyers admittedly did not use an investigator, under the circumstances of the petitioner's case, his failure to do so does not constitute deficient performance.   As explained by Attorney Skyers, their defense was one of denial, there were a finite number of people involved in the offense, the victim could not identify the petitioner and only one codefendant was possibly going to testify against the petitioner.   Under these circumstances, it was not necessary to hire an investigator.   Attorney Skyers was seemingly able to procure the information he needed without the help of an investigator.   He confronted the only testifying codefendant, Buitrago, with a statement that he allegedly wrote while incarcerated, wherein he exonerates the petitioner of any involvement in the burglary.¹³  As for his decision not to have the gun fingerprinted, this court finds that it was a strategic decision.   The petitioner has not overcome the “strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment ․” (Citation omitted.)  Iovieno v. Commissioner of Correction, 67 Conn.App. 126, 128, 786 A.2d 1113 (2001), cert. denied, 259 Conn. 916, 792 A.2d 851 (2002).

In any event, the petitioner has not demonstrated what benefit additional investigation would have revealed.  “Mere conjecture and speculation are not enough to support a showing of prejudice.”  (Internal quotation marks omitted.)  Hamlin v. Commissioner of Correction, 113 Conn.App. 586, 596, 967 A.2d 525, cert. denied, 291 Conn. 917, 970 A.2d 728 (2009).   There is no credible evidence before this court that had Attorney Skyers hired an investigator, any beneficial information, i.e., an alibi or impeachment evidence, would have been discovered.   Similarly, there is no evidence before this court that had the gun been fingerprinted, the petitioner's fingerprints would not have been discovered.   Even if such evidence was before this court, it would not establish that there is a reasonable probability that the outcome of the trial would have been different, as Buitrago's admitted handling of the gun could explain the absence of any prints by the petitioner.¹⁴

The petitioner also claims, in count one of his petition, that Attorney Skyers did not file any pretrial motions or discovery requests and that he ineffectively cross-examined Officer Stanley Stasaitis and Buitrago.   The court will address these allegations only briefly, as the petitioner presented little, if any, evidence relating to them at the habeas trial.   As testified to by Attorney Farver, motion practice depends upon the case.   He stated, “the more complicated the case, the more [he would] expect some motion practice.” ¹⁵  It is undisputed that Attorney Skyers did not file any pretrial motions in the petitioner's case.¹⁶  The petitioner has not, however, demonstrated that Attorney Skyers should have filed any particular motions or that any such motions would have been successful.   Accordingly, there is no merit to this claim.   Likewise, the petitioner's claim that Attorney Skyers did not file any discovery requests is meritless.   Although Attorney Skyers did not formally file any discovery requests, he sent a discovery request directly to the state and made numerous requests on the record prior to the petitioner's trial.¹⁷

As for the claim that Attorney Skyers did not effectively cross-examine Officer Stasaitis and Buitrago, there is likewise no evidence in support of this claim.  “An attorney's line of questioning on examination of a witness clearly is tactical in nature.  [As such, the] court will not, in hindsight, second-guess counsel's trial strategy ․ The fact that counsel arguably could have inquired more deeply into certain areas, or failed to inquire at all into areas of claimed importance, falls short of establishing deficient performance.”  (Citation omitted;  internal quotation marks omitted.)   Velasco v. Commissioner of Correction, 119 Conn.App. 164, 172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010).   The transcripts of the petitioner's criminal trial reveal that Attorney Skyers adequately cross-examined both Officer Stasaitis and Buitrago.   The petitioner has not identified any further inquiry that Attorney Skyers should have made with respect to Officer Stasaitis.   With respect to Buitrago, the petitioner testified at the habeas trial that Buitrago's deal for testifying against him was never disclosed and that he wanted an expert to testify that the inconsistent statement that Buitrago allegedly penned while he was incarcerated was in fact in his handwriting.   Buitrago was already sentenced at the time that he testified at the petitioner's criminal trial.   Attorney Skyers directly questioned him regarding the possibility that he was hoping for a sentence modification by testifying, which he unequivocally denied.¹⁸  The evidence before this court establishes that Buitrago's sentence entered on June 22, 2005 was subsequently modified on March 3, 2006.¹⁹  There is, however, no evidence before this court explaining the modification.   This court cannot speculate that Buitrago's sentence was modified because of a deal in existence prior to his testimony in the petitioner's case.   There is simply no evidence that Buitrago had a deal with the state whereby his sentence would be reduced if he testified against the petitioner.   Regardless, Attorney Skyers did inquire on this subject in his cross-examination of Buitrago.   As for a handwriting expert, Attorney Skyers testified that he chose not to call such an expert at the trial because he had an eyewitness who saw Buitrago sign the inconsistent statement.   Accordingly, there was no need for a handwriting expert.   In short, Attorney Skyers effectively cross-examined Buitrago, highlighting the inconsistencies between his testimony and his statement to the police and questioning him on the subsequent inconsistent statement that he allegedly wrote while incarcerated.²⁰  This claim of ineffective assistance of trial counsel accordingly fails.

The petitioner lastly claims, in count two of his petition, that Attorney Skyers rendered ineffective assistance by failing to file a bill of particulars, thereby precluding him from moving to dismiss the defective counts in the substitute information.   The petitioner refined this claim at trial and in his trial briefs, alleging that Attorney Skyers should have objected to the filing of the amended substitute information and moved to dismiss the defective counts in the original substitute information.   This claim fails primarily for lack of a showing of prejudice.

On October 27, 2005, the state filed a substitute information containing six counts.   In count two of the substitute-information, the petitioner was charged, in relevant part, with committing “the crime of CONSPIRACY TO COMMIT KIDNAPPING IN THE FIRST DEGREE, in violation of Connecticut General Statutes §§ 53a-48 and 53a-172(a)(2)(B), in that ․ the said LUCAS BETANCOURT, acting with the intent that conduct constituting the crime of kidnapping be performed ․” ²¹ Immediately preceding count two, the petitioner was charged, in count one, with committing “the crime of KIDNAPPING IN THE FIRST DEGREE, in violation of Connecticut General Statutes § 53a-92(a)(2)(B) ․” In count six, he was charged with committing “the crime of CONSPIRACY TO COMMIT ROBBERY IN THE SECOND DEGREE, in violation of Connecticut General Statutes §§ 53a-48 and 53a-134(a), in that ․ the said LUCAS BETANCOURT, acting with the intent that conduct constituting the crime of robbery be performed ․” ²² Immediately preceding count six, the petitioner was charged, in count five, with committing “the crime of ROBBERY IN THE SECOND DEGREE, in violation of Connecticut General Statutes 53a-135(a)(1) ․”

Counts two and six of the substitute information contain the wrong statutory citations.   In count two, a nonexistent statute is cited, General Statutes § 53a-172(a)(2)(B).²³  In count six, the statutory citation for the crime of robbery in the first degree, General Statutes § 53a-134(a),²⁴ is cited as opposed to the citation for the crime of robbery in the second degree, General Statutes § 53a-135(a)(1).   In putting the petitioner to plea on the charges in the substitute information, the court corrected the statutory citation in count two but not count six.   However, immediately after putting the petitioner to plea on the charge in count six, the court brought the incorrect citation to the state's attention and had the petitioner re-enter his plea as to that charge using the correction statutory citation.²⁵  Thereafter, jury selection began.   In reading the substitute information to the first panel, the court read the wrong statutory citation in count two but the right statutory citation in count six.²⁶  The following day, on October 28, 2005, the state filed an amended substitute information, correcting the errors in counts two and six.   In doing so, the prosecutor stated that the clerk had brought the errors to her attention.   Attorney Skyers did not object to the filing of the amended substitute information.²⁷

At the habeas trial, Attorney Farver testified that Attorney Skyers should have objected to the filing of the amended substitute information and moved to dismiss counts two and six of the substitute information, as they contained the wrong statutory citations and jeopardy had already attached the day before when the first jury panel was brought in and took the juror's oath.   He opined that a motion to dismiss count six had a “very good chance” of succeeding.²⁸  Despite this testimony, this court finds that regardless of whether the conduct of Attorney Skyers constitutes deficient performance, the petitioner has not met his burden in establishing any resulting prejudice.

Even if Attorney Skyers objected to the filing of the amended substitute information and moved to dismiss counts two and six of the substitute information, there is no reasonable probability that the court would have disallowed the filing and granted the motion to dismiss.  “The judicial authority may order at any time such relief as is required to remedy any defect, imperfection or omission in the information or complaint, including the following ․ (2) Any miswriting, misspelling, or improper English ․” Practice Book § 36-16.   Additionally, while a defendant can move to dismiss the information because of defects therein,²⁹ “[n]o information shall be dismissed because of any defect or imperfection in, or omission of, any matter of form only, or because of any miswriting, misspelling ․” Practice Book § 41-10.

In the petitioner's case, the statutory citations in counts two and six of the substitute information filed on October 27, 2005 can best be described as scrivener' s errors or a miswriting.   In both instances, the crime meant to be charged is accurately described.   In count two, it is the crime of conspiracy to commit kidnapping in the first degree.   In count six, it is the crime of conspiracy to commit robbery in the second degree.   The only thing amiss is the official statutory citation to the crime.   Moreover, preceding each count is a count charging the petitioner with the straight commission of the crime, i.e. kidnapping in the first degree and robbery in the second degree.   In light of the above, the incorrect statutory citations amount to nothing more than a miswriting.   Accordingly, any objection to the filing of the amended substitute information or motion to dismiss the defective counts had no real possibility of succeeding, as an information cannot be dismissed because of any miswriting and as the judicial authority can order relief, such as the filing of an amended information, to correct any miswriting.   See Practice Book §§ 36-16 and 41-10.   This claim fails.

CONCLUSION

Based on the foregoing, the petition for a writ of habeas corpus is DENIED.   Judgment may enter in favor of the respondent.   Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.

BY THE COURT,

T. Santos, J.

FOOTNOTES

FN1. Petitioner's Exhibit [Exh.] 5..  FN1. Petitioner's Exhibit [Exh.] 5.

FN2. Exh. 24, p. 27..  FN2. Exh. 24, p. 27.

FN3. See Petitioner's Exhs. 29, 30, 31 and 35 (inmate request forms and excerpts from phone log indicating that the petitioner tried to call Attorney Skyers approximately nine times between February 24, 2005 and October 27, 2005)..  FN3. See Petitioner's Exhs. 29, 30, 31 and 35 (inmate request forms and excerpts from phone log indicating that the petitioner tried to call Attorney Skyers approximately nine times between February 24, 2005 and October 27, 2005).

FN4. See Petitioner's Exh. 36 (inmate visitor log from New Haven Correctional Center)..  FN4. See Petitioner's Exh. 36 (inmate visitor log from New Haven Correctional Center).

FN5. See Petitioner's Exhs. 26 and 27..  FN5. See Petitioner's Exhs. 26 and 27.

FN6. Attorney Skyers testified that he sent the petitioner two letters and that the petitioner sent him letters..  FN6. Attorney Skyers testified that he sent the petitioner two letters and that the petitioner sent him letters.

FN7. See also Petitioner's Exh. 26 (letter to the petitioner from Attorney Skyers, wherein he writes, “I have also returned the case analysis that you wrote, I made a copy for myself, it is helpful”)..  FN7. See also Petitioner's Exh. 26 (letter to the petitioner from Attorney Skyers, wherein he writes, “I have also returned the case analysis that you wrote, I made a copy for myself, it is helpful”).

FN8. May 26, 2010 Habeas Trial Transcript, pp. 127-28..  FN8. May 26, 2010 Habeas Trial Transcript, pp. 127-28.

FN9. See footnote 7..  FN9. See footnote 7.

FN10. (Emphasis added.)   Petitioner's Exh. 27..  FN10. (Emphasis added.)   Petitioner's Exh. 27.

FN11. Petitioner's Exhs. 18-22..  FN11. Petitioner's Exhs. 18-22.

FN12. May 26, 2010 Habeas Trial Transcript, p. 151..  FN12. May 26, 2010 Habeas Trial Transcript, p. 151.

FN13. Petitioner's Exh. 19, pp. 50-52..  FN13. Petitioner's Exh. 19, pp. 50-52.

FN14. Exh. 19, p. 41..  FN14. Exh. 19, p. 41.

FN15. May 26, 2010 Habeas Trial Transcript, p. 122..  FN15. May 26, 2010 Habeas Trial Transcript, p. 122.

FN16. See Petitioner's Exh. 1 (certified copy of the clerk's office file of the petitioner's case)..  FN16. See Petitioner's Exh. 1 (certified copy of the clerk's office file of the petitioner's case).

FN17. Respondent's Exh. A;  Petitioner's Exhs. 9, 13 and 14..  FN17. Respondent's Exh. A;  Petitioner's Exhs. 9, 13 and 14.

FN18. Petitioner's Exh. 19, pp. 42-43..  FN18. Petitioner's Exh. 19, pp. 42-43.

FN19. Upon pleading guilty to burglary in the first degree, robbery in the second degree and kidnapping in the first degree, on June 22, 2005, Buitrago was sentenced to twelve years incarceration, suspended after five years, followed by five years of probation.   Petitioner's Exh. 38.   Subsequent thereto, on March 3, 2006, his sentence was modified to twelve years incarceration, suspended after thirty months, followed by five years of probation.   Petitioner's Exh. 3..  FN19. Upon pleading guilty to burglary in the first degree, robbery in the second degree and kidnapping in the first degree, on June 22, 2005, Buitrago was sentenced to twelve years incarceration, suspended after five years, followed by five years of probation.   Petitioner's Exh. 38.   Subsequent thereto, on March 3, 2006, his sentence was modified to twelve years incarceration, suspended after thirty months, followed by five years of probation.   Petitioner's Exh. 3.

FN20. Petitioner's Exh. 19, pp. 43-61..  FN20. Petitioner's Exh. 19, pp. 43-61.

FN21. (Emphasis added.)   Petitioner's Exh. 4, p. 1..  FN21. (Emphasis added.)   Petitioner's Exh. 4, p. 1.

FN22. (Emphasis added.)   Petitioner's Exh. 4, p. 3..  FN22. (Emphasis added.)   Petitioner's Exh. 4, p. 3.

FN23. Section 53a-172 does exist;  however, there is no further subdivision beyond subdivision (2) of subsection (a) of § 53a-172, which provides in relevant part:  “A person is guilty of failure to appear in the first degree when ․ while on probation for conviction of a felony, he wilfully fails to appear when legally called for a violation of probation hearing.”   General Statutes (Rev, to 2005) § 53a-172(a)(2)..  FN23. Section 53a-172 does exist;  however, there is no further subdivision beyond subdivision (2) of subsection (a) of § 53a-172, which provides in relevant part:  “A person is guilty of failure to appear in the first degree when ․ while on probation for conviction of a felony, he wilfully fails to appear when legally called for a violation of probation hearing.”   General Statutes (Rev, to 2005) § 53a-172(a)(2).

FN24. General Statutes (Rev. to 2005) § 53a-134(a) provides in relevant part:  “A person is guilty of robbery in the first degree when ․”.  FN24. General Statutes (Rev. to 2005) § 53a-134(a) provides in relevant part:  “A person is guilty of robbery in the first degree when ․”

FN25. Exh. 15, pp. 5, 6-7..  FN25. Exh. 15, pp. 5, 6-7.

FN26. Petitioner's Exh. 15, pp. 11, 13..  FN26. Petitioner's Exh. 15, pp. 11, 13.

FN27. Petitioner's Exh. 16, p. 1..  FN27. Petitioner's Exh. 16, p. 1.

FN28. May 26, 2010 Habeas Trial Transcript, p. 133..  FN28. May 26, 2010 Habeas Trial Transcript, p. 133.

FN29. See Practice Book § 41-8 (“The following defense or objections, if capable of determination without a trial of the general issues, shall, if made prior to trial, be raised by a motion to dismiss the information ․ (2) Defects in the information including failure to charge an offense”)..  FN29. See Practice Book § 41-8 (“The following defense or objections, if capable of determination without a trial of the general issues, shall, if made prior to trial, be raised by a motion to dismiss the information ․ (2) Defects in the information including failure to charge an offense”).

Santos, Thelma A., J.