209203 v. Warden (2012)

MEMORANDUM OF DECISION

The petitioner, Lawrence Smith, brought this petition for a writ of habeas corpus claiming that his pretrial, trial and appellate attorneys were ineffective in representing him, and as a result, his constitutional right to effective assistance of counsel under the Sixth Amendment was violated.

The following procedural and factual background is relevant to this case.   On January 11, 2006, the petitioner was convicted, after a jury trial, of murder in violation of General Statutes §§ 53a–54a(a) and 53a–8(a), felony murder in violation of General Statutes §§ 53a–54c and 53a–8(a), conspiracy to commit murder in violation of General Statutes §§ 53a–48(a) and 53a–54a, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a–134(a)(2) and 53a–48(a), and hindering prosecution in the first degree in violation of General Statutes § 53a–165(a)(5).   He received a prison sentence of 75 years.

In the petitioner's direct appeal from the convictions, the Supreme Court found that the jury could have reasonably found the following facts:

On July 21, 2000, Robert Marrow and Jonathan Rivers, acting on the orders of Miguel Estrella, a drug dealer in Meriden, met the victim, Juan Disla, who was a rival drug dealer, at a Dairy Queen in Meriden to rob him.   During the course of the robbery, Marrow shot the victim in the leg.   Marrow contacted Estrella for instructions and was told to drive to the [petitioner's] house.   Marrow and Rivers took the victim, whom they had bound with duct tape, to the [petitioner's] house, where Estrella and the [petitioner] removed money and cocaine from the victim's vehicle.   Thereafter, the [petitioner], Estrella, Rivers and Marrow drove the victim to a remote location in a wooded area in the Higganum section of Haddam, where the victim was suffocated to death.   The four men left the victim's body in the woods and returned to Meriden.   That evening, Estrella, Marrow, Rivers and some friends drove the victim's car to New York state and abandoned it on the highway, where it eventually was vandalized.   Two days after the murder, Estrella and the [petitioner] returned to the location of the victim's body with a chainsaw, plastic buckets and several containers of acid.   The [petitioner] used the chainsaw to dismember the body while Estrella watched.   The [petitioner] and Estrella then placed the body parts in the buckets and covered them with acid to destroy them.   The [petitioner] subsequently disposed of any remains.   The victim's body was never recovered, and no bloodstains, DNA or bones ever were found.

State v. Smith, 289 Conn. 598, 602–603, 960 A.2d 993 (2008).

The petitioner was represented by three different attorneys during the pretrial, trial and appellate proceedings, and has alleged ineffective claims as to all three attorneys.   During the pretrial proceedings, the petitioner was represented by Special Public Defender, Glenn Conway.   Conway's motion to withdraw from the case was granted on October 11, 2005 and special public defender Leo Ahern was appointed to represent the petitioner at trial.   On appeal, the petitioner was represented by public defender, Elizabeth Inkster.   In particular, the petitioner claims (1) in count one, that Attorneys Conway and Ahern were ineffective in failing to raise a speedy trial claim under United States Supreme Court case, Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972);  (2) in count two, that Attorney Inkster failed to provide an adequate record for the Supreme Court to review a speedy trial claim under Barker v. Wingo, supra;  (3) in count three, that Attorney Ahern failed to present evidence that muriatic acid could not destroy a body, and inadequately advised the petitioner not to testify at trial;  (4) in count four, that he is innocent;  and (5) in count five, Ahern failed to properly advise the petitioner of his right to seek sentence review.   By way of relief, the petitioner seeks a new trial, restoration of his rights to appeal and to sentence review and such other relief as the court deems just and equitable.

The court finds for the respondent on counts one through four and for the petitioner on count five.

A. Standards

It is well-established that in order to establish a claim of ineffective assistance of counsel, the petitioner has the burden to show that “(1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.”  (Emphasis in original.)  Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008).  “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 Sixth Amendment.’   “ Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied sub nom.  Ledbetter v. Lantz, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, 466 U.S. 668, 667, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).   Under the second prong of the test, prejudice, the petitioner must show that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is unreliable.  Strickland v. Washington, supra, 466 U.S. 687;  Fernandez v. Commissioner of Correction, 291 Conn. 830, 835, 970 A.2d 721 (2009).   Ultimately, the “benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”  Strickland v. Washington, supra, 466 U.S. 686.

When assessing counsel's performance, the habeas court is required to “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance ․” Strickland v. Washington, supra, 466 U.S. 689–90.   The United States Supreme Court explained:

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.   Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;  that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”  ․ There are countless ways to provide effective assistance in any given case.   Even the best criminal defense attorneys would not defend a particular client in the same way.

Id. (Internal citations omitted.)

B. Barker v. Wingo Claim Against Conway and Ahern

Turning to the petitioner's first claim, that Conway and Ahern failed to raise the issue of defendant's right to a speedy trial under Barker v. Wingo, supra, 407 U.S. 514, the court finds that the petitioner has failed to meet his burden to prove the first prong of the Strickland test, that either Conway or Ahern's representation fell below the objective standard of reasonableness.

With respect to this claim, the court finds the following facts.   In 2001, the petitioner was arrested in connection with the murder of the victim in this case, Juan Disla, and charged with conspiracy to commit murder in violation of §§ 53a–48(a) and 53a–54a, and kidnapping in the first degree in violation of General Statutes § 53a–92.   On December 5, 2001, after the petitioner had moved for a speedy trial, the state entered a nolle prosequi of the charges pursuant to the missing witness provision of General Statutes § 54–56b and Practice Book § 39–30.   The state represented to the trial court that an essential material witness in the case, co-defendant Miguel Estrella, was unavailable to testify because he would assert his Fifth Amendment privilege against self-incrimination.   The petitioner moved to dismiss the charges.   The trial court, Fasano, J., denied the petitioner's motion to dismiss.   Thereafter, the petitioner was released from custody following the entry of the nolle.

Several years later, pursuant to a warrant dated March 9, 2005, the petitioner was rearrested in connection with the murder of Mr. Disla.   He was charged in a long form information with murder, felony murder, conspiracy to commit murder, conspiracy to commit robbery in the first degree and hindering prosecution in the first degree.

Conway was appointed as a special public defender to represent the petitioner.   On May 5, 2005, Conway filed a motion to dismiss the charges on the grounds that the trial court lacked jurisdiction over the action and the petitioner had been denied his right to a speedy trial.   In particular, the petitioner claimed that the nolle entered in 2001 was transformed into a dismissal because more than thirteen months had elapsed since the entry of the nolle, and that at the December 5, 2001 proceeding, the trial court had improperly made a finding of unavailability, thereby rendering the entry of the nolle prosequi pursuant to § 54–56b improper.   After a hearing on the motion, the trial court, Damiani, J., denied the petitioner's motion to dismiss.   Ahern did not represent the petitioner at the time that this motion was filed, heard or decided.   The petitioner appealed the trial court's ruling denying his motion to dismiss to the Supreme Court, which affirmed it.   State v. Smith, supra, 289 Conn. 602–603.

The petitioner claims that both pretrial counsel, Conway and trial counsel, Ahern, were ineffective in not raising a speedy trial claim under Barker v. Wingo, supra, 407 U.S. 514.   The court is not persuaded.

“ ‘In Barker v. Wingo, [supra, 407 U.S. 514], the United States Supreme Court rejected rigid standards for determining the precise point in time after which the accused's right would be deemed denied, but instead adopted a balancing test to be applied on a case by case basis.   Four factors form the matrix from which an analysis of this relative right develops:  “Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.”  Id., 530;  State v. McCarthy, 179 Conn. 1, 5, 425 A.2d 924 (1979) ․ [N]one of these factors standing alone would demand a set disposition;  rather it is the total mix which determines whether the defendant's right was violated.’  State v. Nims, 180 Conn. 589, 591–92, 430 A.2d 1306 (1980);  see also State v. Davis, 192 Conn. 739, 740–41, 474 A.2d 776 (1984);  State v. Johnson, 190 Conn. 541, 544–45, 461 A.2d 981 (1983).”  State v. Morrill, 197 Conn. 507, 523, 498 A.2d 76 (1985);  State v. Flowers, 198 Conn. 542, 543–4, 503 A.2d 1172 (1986).

Attorney Conway testified at the habeas trial and explained that he did not include a Barker v. Wingo claim in the motion to dismiss because such a claim was not viable in the petitioner's case.   In particular, the second arrest could not be related back to the first arrest to calculate the length of the delay factor because the petitioner was not in custody from the date the nolle was entered in 2001 to the date of his second arrest in 2005 and during that period no charges were pending against petitioner.   Conway also considered the fact the prior missing witness that was unavailable in 2001 had become available in 2005, after his case was concluded.   Finally, Conway was not aware of any evidence that would establish that the petitioner had been prejudiced by the four year delay between the two arrests.

Ahern also testified at the trial in this case.   He did not file an appearance in the trial court until early January 2006, right before the beginning of the petitioner's trial, after the pretrial matters were concluded.   In addition, he understood his role was to try the case, not to reconsider issues already raised by prior counsel.

The court finds that the petitioner has not met his burden to show that Ahern's or Conway's performance in failing to raise a speedy trial claim based on Barker v. Wingo was ineffective.

Conway made a reasonable and sound tactical decision to file a motion to dismiss on the grounds asserted in the motion, which he determined had the best chance of success.   Under the circumstances presented, Conway reasonably determined based on the facts known to him that a Barker v. Wingo claim had little chance to succeed.¹  The petitioner has failed to show that counsel's decisions were tactical decisions that fell below an objective standard of reasonableness.   See, e.g., Morris v. Commissioner of Correction, 131 Conn.App. 839, 844–45, 29 A.3d 914 cert. denied, 303 Conn. 915, (2011);  Thompson v. Commissioner of Correction, 91 Conn.App. 205, 212–16, 880 A.2d 965 (2005), appeal dismissed, 280 Conn. 509, 909 A.2d 946 (2006).   The petitioner has furthermore failed to show that he would have prevailed on a motion to dismiss premised on Barker v. Wingo and its progeny.

As to Ahern, it was reasonable for him not to file a second motion to dismiss under Barker v. Wingo days before the trial was set to begin, particularly since prior counsel had attended to the pretrial matters and he was retained to handle the trial of the case.   Accordingly, petitioner has failed to meet his burden to prove that Ahern was ineffective.

C. Barker v. Wingo Claim Against Attorney Inkster

Petitioner's claim against his appellate counsel, Elizabeth Inkster, also relates to his speedy trial claim under Barker v. Wingo.   He claims that Inkster was ineffective in failing to provide an adequate record to review a claim under Barker v. Wingo and failing to move for an articulation or rectification of the record on this issue.   As a result of these errors by Inkster, the petitioner claims that the Supreme Court refused to consider his claim under Barker v. Wingo.

“A criminal defendant's right to the effective assistance of counsel extends through the first appeal of right and is guaranteed by the sixth and fourteenth amendments to the United States Constitution and by article first, § 8, of the Connecticut Constitution.   See, e.g., Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985);  In re Christina M., 280 Conn. 474, 489, 908 A.2d 1073 (2006).”  Small v. Commissioner of Correction, 286 Conn. 707, 712–13, 946 A.2d 1203, cert. denied sub nom.  Small v. Lantz, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).

The Supreme Court has distinguished the standard of review under the prejudice prong for claims of ineffective assistance of trial and appellate counsel.   Small v. Commissioner of Correction, supra, 286 Conn. 721–24.   For claims of ineffective assistance of appellate counsel, “we must assess whether there is a reasonable probability that, but for appellate counsel's failure to raise the issue on appeal, the petitioner would have prevailed in his direct appeal, i.e., reversal of his conviction or granting of a new trial ․ [T]o determine whether a habeas petitioner had a reasonable probability of prevailing on appeal, a reviewing court necessarily analyzes the merits of the underlying claimed error in accordance with the appropriate appellate standard for measuring harm.”  Small v. Commissioner of Correction, supra, 286 Conn. 722;  Moody v. Commissioner of Correction, 127 Conn.App. 293, 301, 14 A.3d 408, cert. denied, 300 Conn. 943, 17 A.3d 478 (2011);  see also Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

“The right to counsel is not the right to perfect representation ․ [Although] an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue.   A brief that raises every colorable issue runs the risk of burying good arguments ․ in a verbal mound made up of strong and weak contentions ․ Indeed, [e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues ․ Most cases present only one, two, or three significant questions ․ The effect of adding weak arguments will be to dilute the force of the stronger ones ․ Finally, [i]f the issues not raised by his appellate counsel lack merit, [the petitioner] cannot sustain even the first part of this dual burden since the failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation.”  (Internal quotation marks omitted.)  Bailey v. Commissioner of Correction, 107 Conn.App. 362, 366–67, 947 A.2d 2, cert. denied, 287 Conn. 922, 951 A.2d 568 (2008).”  Johnson v. Commissioner of Correction, 131 Conn.App. 805, 808–9, 29 A.3d 166 (2011).

Attorney Inkster testified in the trial in this case.   Although the Supreme Court interpreted her brief to include a Barker v. Wingo claim, she did not intend to pursue such a claim on appeal because in her view, like Conway, such a claim was not viable.   In reviewing the case to determine which issues to raise on appeal, Inkster expressly considered a claim under Barker v. Wingo but decided not to pursue it because she was not aware of any prejudice to the defendant resulting from the delay between the first and second arrests.   Moreover, Inkster did not pursue a Barker v. Wingo claim on appeal because the claim had not been raised or preserved at the trial court.   Because the issue was of constitutional magnitude, she considered whether to raise it under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), but decided not to do so because the trial court record was not adequate for review.

The court finds that the petitioner has failed to prove that Attorney Inkster's representation fell below the objective standard of reasonableness.   Inkster did precisely what the law requires of her.   She reviewed the pleadings and transcripts, identified the possible issues and then strategically determined which issues had the best chance of winning.  Johnson v. Commissioner of Correction, supra, 131 Conn.App. 808–9;  Smith v. Robbins, 528 U.S. 259, 288 (2000).

In addition, the responsibility to provide an adequate record for appellate review is generally the responsibility of the trial counsel.   That was not done here because as explained above, pretrial counsel did not pursue a claim under Barker v. Wingo.   It goes without saying much that Attorney Inkster could not have sought rectification of the record regarding an issue that was not pursued by trial counsel, and therefore, no record exists.

Accordingly, the court finds that the petitioner has failed to establish this claim.

D. Ahern—Muriatic Acid

Petitioner next claims that Attorney Ahern was ineffective in failing to provide any evidence to prove that muriatic acid could not dissolve a body.   In the petition, the petitioner claims that such evidence “was a central claim of the State's witnesses against” the petitioner.

The parties have stipulated that muriatic acid, even in large quantities will not dissolve a body.   The statement of the witness, Miguel Estrella, identified in the petitioner's brief does not include a definitive statement that the petitioner used muriatic acid to dissolve the victim's body but that the petitioner told him that is what they should do.

Attorney Ahern discussed this issue of whether to introduce evidence concerning the effects of muriatic acid with the petitioner at the time of trial and was aware that the petitioner believed such evidence was important.   However, Ahern made the tactical decision not to introduce any evidence regarding muriatic acid because he believed that such evidence had no value to the petitioner's defense in this case.

The court finds that this was an objectively reasonable strategic decision for Ahern to make in this case.   The victim's body was never located in this case.   Witnesses testified about the petitioner's role in the murder of the victim and such evidence was sufficient for the jury to find him guilty of the charges.   The issue of how the victim's body was secreted after the murder was not a central issue in the case.   The evidence of the murder and elimination of the body came from eye-witnesses, not forensic proof.   Co-defendant Estrella, who raised the issue of petitioner's statement regarding the acid was not present when the victim's dead body was later concealed by the petitioner and another.   The petitioner, himself, admitted during his testimony in this case that he agreed to get rid of the body in exchange for drugs and did so, with another person, by dragging the body into a wooded area and throwing it in a watery ditch.   He later told Estrella that he dissolved the body in acid but that is not what actually happened.

The issue of the muriatic acid is nothing more than a collateral issue, and even if such evidence was presented it would not have made any difference in the outcome of the case.   Accordingly, the court finds that the petitioner has failed to prove that Ahern's conduct was deficient in failing to introduce evidence that muriatic acid could not dissolve a body or that he was prejudiced by the lack of such evidence at his trial.

B. Ahern—Advice Regarding Right to Testify

The petitioner next claims that Attorney Ahern was ineffective in improperly persuading and advising the petitioner not to testify at his trial.

The following additional facts are relevant to this claim.   Ahern had ongoing discussions with the petitioner as to whether or not he should testify in this case.   The petitioner did not have a strong view on whether he should or should not testify.   Although Ahern advised the petitioner that he had the right to testify, he strongly advised him not to do so.   Ahern explained to the petitioner that the state had a strong case, but there were holes in its case.   If the petitioner chose to testify, and testified poorly as Ahern believed he would, the petitioner could seriously hurt his case.   As a convicted felon, the state could use the petitioner's conviction record on cross examination.   More importantly, Ahern did not believe that the petitioner had a cohesive and consistent story to tell the jury.

In addition, the trial court thoroughly canvassed the petitioner on the record on his decision not to testify.   In particular, the trial court explained to the petitioner that he had the right to testify in his case or not testify in this case.   It expressly asked him whether it was his choice not to testify.   The petitioner indicated that he understood his right and elected not to testify.   He also indicated during the canvass that he had discussed the issue with Ahern.

“It is the right of every criminal defendant to testify on his own behalf;  Rock v. Arkansas, 483 U.S. 44, 49, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987);  and to make that decision after full consultation with trial counsel.   See State v. Davis, 199 Conn. 83 [199 Conn. 88], 93, 506 A.2d 86 (1986).   Equally axiomatic is the proposition that an accused must take some affirmative action regarding his right to testify.  United States v. Systems Architects, Inc., 757 F.2d 373, 375 (1st Cir.), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 115 (1985);  State v. Paradise, 213 Conn. 388, 405, 567 A.2d 1221 (1990).”  Ostolaza v. Warden, 26 Conn.App. 758, 763, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 62 (1992).

The court finds that Ahern provided objectively reasonable advice regarding the petitioner's decision to testify or not testify.   He appropriately reviewed the state's evidence with the petitioner and reviewed with him the substance of what the petitioner would say if he took the stand.   Based on this, Ahern strongly advised the petitioner not to testify.   Having heard the petitioner's version of events during the trial of this case, this court cannot disagree with Ahern's judgment that the petitioner's story was inconsistent and contained damaging and incriminatory details that would not have assisted his defense that he was a minor player in the events of the murder and its aftermath.

In addition, the decision whether or not to testify was the petitioner's and it is clear from the trial court's canvass, that the petitioner knowingly and voluntarily elected not to testify.

Accordingly, the court finds that the petitioner has failed to prove that Ahern's advice as to whether the petitioner should or should not testify was in any way deficient.

F. Sentence Review

The petitioner's final claim is that Attorney Ahern was ineffective in that he failed to properly advise the petitioner with respect to his right to sentence review and failed to perfect that right.   Had he been so advised, petitioner claims that he would have sought to have his sentence reviewed.   By way of relief, the petitioner seeks restoration of his right to sentence review.²

The following additional facts are relevant to this claim.   At the petitioner's sentencing, on March 23, 2006, the petitioner was represented by Ahern, who had been appointed as a special public defender, prior to trial.   On that date, the trial court sentenced the petitioner to 80 years in prison.   At the conclusion of the sentencing hearing, the trial court directed the clerk to provide the petitioner with forms notifying him of his rights to appeal and seek sentence review.   The record reflects that the petitioner received those documents.   Petitioner was also provided with an application for a waiver of fees and costs and appointment of counsel.

After the sentencing, Ahern did not have a substantive discussion with the petitioner regarding his right to sentence review.   The parties stipulated that the time period to file a petition for sentence review has expired and that the petitioner did not seek sentence review.

On May 17, 2006, the parties appeared before the trial court to consider the trial court's motion to correct the sentence.   Ahern was present at this hearing but the petitioner was not.   The trial court explained that after the sentencing, it discovered that the sentence imposed on the fifth count of the information, pertaining to hindering prosecution, was incorrect in that the court imposed a ten year consecutive sentence rather than five, as permitted by law.   The trial court corrected the mittimus to reflect the correct sentence of five years on the fifth count, making the new total effective sentence 75 years.   There were no objections to the change in the sentence.

The transcript of the May 17, 2006 hearing does not reflect that the clerk was directed to send the petitioner notice of his right to sentence review again or to provide those documents to Ahern.   After the May hearing, Ahern did not provide new copies of the sentence review forms to the petitioner, did not seek sentence review on petitioner's behalf after the May hearing, and did not discuss the issue of sentence review with the petitioner after the May 17 hearing.

An application for waiver of fees, costs, expenses and appointment of counsel was made on March 27, 2006.   The application was granted by Judge Damiani on August 29, 2006.   An appeal of the conviction was filed by the public defender's office, Neal Cone, on September 13, 2006.

The issue is whether Ahern adequately advised the petitioner with respect to his right to sentence review after the imposition of the original sentence or the corrected sentence.   It is unclear under the law whether the petitioner would have been entitled to a second opportunity to seek sentence review after the court corrected the sentence on May 17, 2006.³  However, the court does not have to decide this novel legal issue, because it finds that Ahern did not properly advise the petitioner as to his right to sentence review after either the March sentencing or the May 17 correction hearing.

“Under article first, § 8, of the Connecticut constitution and the sixth and fourteenth amendments to the United States Constitution, the petitioner had a right to the effective assistance of counsel with respect to access to sentence review.  ‘[T]he sentencing process is a critical stage of a criminal trial.’  Consiglio v. Warden, 153 Conn. 673, 676, 220 A.2d 269 (1966).   Accordingly, an indigent criminal defendant has a constitutional right to appointed counsel at sentence review.  Id., 676.   The right to counsel at sentence review would be meaningless unless it also implied the right to effective assistance of such counsel.   See Lozada v. Warden, supra, 223 Conn. 838–39.   It would equally be meaningless if it were not afforded at the time when invocation of sentence review is at issue.   The constitutional right to the effective assistance of counsel at sentence review is not diminished by the fact that the right to sentence review, like the right to a direct appeal, derives from statute rather than a constitution.   See Gaines v. Manson, 194 Conn. 510, 515–16, 481 A.2d 1084 (1984).”  James L. v. Commissioner of Correction, 245 Conn. 132, 144, 712 A.2d 947 (1998).

The question is whether Ahern had an obligation to advise petitioner as to his right to sentence review and to file the application on his behalf.   Practice Book § 43–23 answers this question and provides that:  “It is the responsibility of the counsel of record at the time of sentencing to represent the defendant at the hearing before the sentence review division of the superior court, unless, for exceptional reasons such counsel is excused by the division.”   Thus, because Ahern represented the petitioner at both the sentencing and the hearing to correct the sentence, Ahern was responsible for representing him at sentence review, which would necessarily include advising him of his right and the risks and benefits of the sentence review procedure and filing the application.   Here, Ahern admitted that he did not have any substantive conversation with the petitioner about sentence review and did not file the application either after the original sentence or the corrected sentence.

The court therefore concludes that the petitioner has met his burden to prove that Ahern's performance did not rise to the level of objective reasonableness as to sentence review.

Additionally, prejudice is established by the absence of access to sentence review, resulting from Ahern's deficient performance.  James L. v. Commissioner of Correction, supra, 245 Conn. 145;  Andrades v. Commissioner of Correction, 108 Conn.App. 509, 516, 948 A.2d 365, cert. denied, 289 Conn. 906, 957 A.2d 868 (2008).

As to what remedy to provide, the Supreme and Appellate Courts have concluded that:  “Only a restoration of the petitioner's right to apply for sentence review could provide an appropriate remedy for the petitioner in the circumstances of this case.”  James L. v. Commissioner of Correction, supra, 245 Conn. 148;  Andrades v. Commissioner of Correction, supra, 108 Conn.App. 516.

CONCLUSION

Based on the forgoing, the court finds for the respondent on counts one, two, three and four.⁴  The court finds for the petitioner as to count five and orders that his right to sentence review under General Statutes § 51–195 is restored.   The petitioner has thirty (30) days from the date of this decision to file an application for sentence review.

So ordered.

Cobb, J.

FOOTNOTES

FN1. The court finds incredible the petitioner's testimony about individuals he claimed witnessed events at his home who have since died..  FN1. The court finds incredible the petitioner's testimony about individuals he claimed witnessed events at his home who have since died.

FN2. The respondent opposes this claim but did not file a post-trial brief.   Its pretrial brief did not address this issue..  FN2. The respondent opposes this claim but did not file a post-trial brief.   Its pretrial brief did not address this issue.

FN3. General Statutes § 51–195 provides that:  “Any person sentenced on one or more counts of an information to a term of imprisonment for which the total sentence of all such counts amounts to a confinement for three years or more, may, within thirty days from the date such sentence was imposed ․ file with the clerk of the court for the judicial district in which the judgment was rendered an application for review of the sentence by the review division.”   See also, Practice Book § 43–24..  FN3. General Statutes § 51–195 provides that:  “Any person sentenced on one or more counts of an information to a term of imprisonment for which the total sentence of all such counts amounts to a confinement for three years or more, may, within thirty days from the date such sentence was imposed ․ file with the clerk of the court for the judicial district in which the judgment was rendered an application for review of the sentence by the review division.”   See also, Practice Book § 43–24.

FN4. Count four is the petitioner's claim of actual innocence.   The petitioner presented no evidence of this claim at trial and did not brief this issue.   The court therefore finds for the respondent on this claim..  FN4. Count four is the petitioner's claim of actual innocence.   The petitioner presented no evidence of this claim at trial and did not brief this issue.   The court therefore finds for the respondent on this claim.

Cobb, Susan Quinn, J.