Rafael Perdomo v. Warden, State Prison (2010)

DECISION

THE COURT:  I've heard the parties, and I thank them for their clear presentation of the facts and issues in this case.   Before rendering a decision, I'll preface my remarks by saying while this case could have been the subject of an agreement between the parties, it was not;  and therefore, it's up to me to decide it.   And I must decide it based strictly on the law and not based on any subjective feelings I might have as to how easy this might be to resolve it without a hearing.

The legal issue which I must decide is whether there was ineffective assistance of counsel.   In James L., 245 Conn 132, particularly at 144, the Court held that there is a right to ineffective assistance of counsel in connection with sentence review.   There's no real holding as to the contours of that right.   The facts were essentially stipulated, and so the Court went on to other issues.

Later in Andrades v. Commissioner of Correction, 108 Conn.App. 509, particularly at 513 to 16, 2008, the Court did uphold the finding of ineffective assistance in a case in which counsel had undertaken the responsibility for filing the petition and then failed to do so.

Here the facts are different, and as the reasons I will detail, the petition for writ of habeas corpus is denied.

Here the petitioner was advised at the time of sentencing of his right to sentence review in court by the Court.   That's not the primary issue, but he was put on notice of the importance of that by the fact that the Court mentioned it and the clerk gave him the forms;  but more importantly, he was advised at the time by Mr. Solak.   There was a brief discussion after sentencing, crediting Mr. Solak's testimony in which Mr. Solak said you have to fill out the papers.

Mr. Solak then sent him a letter advising the petitioner of his right to sentence review, recommending that he do that, enclosing the paperwork with self-addressed envelopes, if you will, advising the petitioner where to sign and where to send the papers, emphasizing the deadline.

So unlike Andrades, this is not a case in which counsel undertook the responsibility of filing on his own, rather counsel's letter was very clear in that it was the petitioner's responsibility for filing the application.   And petitioner understood and did sign, fill out the application, and put it in the mail.

As Mr. Solak testified, the petitioner was savvy.   He understood what to do.   He knew what he was supposed to do.   All in all, I find that Mr. Solak's letter was very clear and was very helpful to the petitioner.   It provided all the necessary advice and even addressed the envelopes for him.   It was a very professional way of doing it because it was all recorded in a letter, which not every attorney will provide.

The petitioner was able to follow the advice and did mail it in time.   Unfortunately, it did not make it to the Court on time or at all.   And really, the only question is whether counsel had an obligation to follow-up.   Well, it would have been nice if he had done so, and we wouldn't be here if he did.   The constitutional duty of counsel to provide effective assistance of counsel does not go that far.   Counsel sufficiently discharged his duty by advising the petitioner concerning sentence review giving him all the necessary materials in a clear way understandable to a person of ordinary intelligence.   Counsel is simply not required by the constitution to double check every move that petitioner makes or fails to make.   While it is unfortunate that the application did not reach the Court, I cannot say as a matter of law that the fact that it did not reach the Court was counsel's fault or that counsel was ineffective;  and therefore, I find counsel was not ineffective.

As to prejudice, the law does provide that failure to file the application for sentence review or to be deprived of an opportunity for sentence review is prejudice, but in this case it's not clear that a follow-up call, which is really what is at issue here, would have succeeded in a timely filing of the application.   That would depend on the date that the petitioner mailed the application to begin with, which we don't know.   By the time that it might occur to a reasonably effective attorney to follow-up with the petitioner to see whether the application, in fact, had gone into the Court, it might well have been too late.   It's simply not clear.   And so I don't think petitioner has proven prejudice in this case as well.

So for those reasons I find that the petitioner has not met his burden of proving the claim of ineffective assistance of counsel, and the petition for writ of habeas corpus is denied.

Carl Schuman, Judge

Schuman, Carl J., J.