Opinion
No. CV05-4000392S
November 18, 2009
DECISION
DECISION
THE COURT: We are here on the record on Abdul Peay vs. the Warden and the court has taken time to review the exhibits in evidence.
Petitioner's One through K are a series of trial transcripts, including pretrial presentments in court, as well as the trial of the case which commenced in December of '03, and, of course, the sentencing by the court and various other proceedings.
In addition, the petitioner did introduce into the record the appellate court record from the matter of State v. Peay, reported at 96 Conn.App. 421, 2006, and lastly, a full exhibit by the petitioner was the petition for certification.
In addition, the court did review Respondent's A, which was the court file and documents respecting the prosecution of Abdul Peay in the Judicial District of Hartford at Hartford, CR03-569925.
Respondent's B and C were appellate court briefs prepared by the defendant and the appellate court decision was Respondent's D, and there were additional trial transcripts submitted as Respondent's E.
In this proceeding the court heard evidence today with continued examination and cross-examination of Mr. Abdul Peay. This trial commenced previously on October 23, 2009, at which time the court heard testimony from Mr. Peay's previous trial attorney, William O'Connor, Mr. Peay's prior appellate attorney, Katharine Goodbody, as well as the commencement of Mr. Peay's testimony.
With regard to this matter, the court makes the following findings:
Mr. Abdul Peay was originally charged in the docket number previously referenced and that the court previously referenced with a number of offenses, including one count of burglary in the first degree, in violation of Connecticut General Statute Section 53a-101(a)(1), count two, burglary in the first degree, in violation of Connecticut General Statute Section 53a-101(a)(2), count three, felony assault in the second degree, in violation of Connecticut General Statute Section 53a-60(1), and lastly, count four, interfering with a peace officer, in violation of Connecticut General Statute Section 53a-167a(a).
The court finds that sometime prior to September 8, 2003 Mr. Peay was presented in the Judicial District of Hartford and for sometime prior thereto he was represented on these offenses by Attorney William O'Connor, then a public defender in the Judicial District of Hartford.
However, on or about September 8, 2003, per the request of Mr. Peay, Mr. O'Connor was removed as Mr. Peay's attorney. On that same date Mr. Peay represented himself in a pro se or self-represented status and that status continued up to jury selection in November 2003.
On the first date of jury selection, Mr. O'Connor was reappointed and thereafter commenced picking a jury before the Honorable Judge Christine Keller. The matter was eventually tried before a jury, and on December 5, 2003, the petitioner was, in fact, convicted of one count of burglary in the first degree, in violation of the statute previously referenced, a second count of burglary in the first degree, in violation of the statute previously referenced, a different subsection, count three, assault in the second degree, and count four, interfering with a police officer.
On March 8, 2004, the petitioner was sentenced by the trial judge as follows: On the first count of burglary in the first degree, twelve years to serve, with a five-year mandatory minimum sentence; on the second count of burglary in the first degree, twelve years to serve, concurrent to the sentence previously imposed; with regard to assault in the second degree, five years, concurrent with the sentences previously imposed; and on the charge of interfering, one year, concurrent with the sentences previously imposed; total effective sentence twelve years to serve. At the time of sentencing Mr. Peay was represented by Mr. O'Connor.
With regard to these offenses allegedly having occurred on April 17, 2003, the facts are set forth in the appellate court decision previously referenced. Suffice to say, following conviction and denial of a motion for judgment of acquittal and other motions, the petitioner appealed his case to the appellate court unsuccessfully and the appellate court affirmed the conviction in the matter of State v. Peay.
With regard to the facts, the appellate court, in an opinion by Judge Harper, summarized the facts as follows at pages 423 and 424.
On April 17, 2003, Edwin Carter was the superintendent of an apartment building in Hartford. Generally, Carter had maintenance and caretaking duties in and around the building. Carter lived in an apartment in the building's basement, near the laundry room. The laundry room, like most areas of the building, was not an area of the building open to the public and was accessible only through locked security doors. Tenants and other authorized persons possessed keys with which to gain access to these areas.
At approximately 11:30 p.m., Carter heard noises coming from the laundry room. Carter went to the doorway of the laundry room and observed the defendant standing near a coin operated laundry machine. The defendant was not a tenant in the building.
To the extent this court references the defendant, this court is referring to the petitioner in this proceeding.
Carter asked the defendant what he was doing there. The defendant, who was attempting to pry open the coin box on the laundry machine, replied, "What does it look like?"
The defendant moved toward Carter, while Carter was standing in the laundry room's doorway, and struck him on the head with a crowbar, causing a significant injury.
The petitioner ran from the laundry room. Carter, despite feeling the ill effects of his head injury, pursued the petitioner and pulled him to the ground. The petitioner made his way to the building's lobby, where he and Carter continued to wrestle with each other. The petitioner attempted to strike Carter with a Sheetrock knife and a screwdriver and bit Carter on the chest.
After breaking a glass door in the lobby, the petitioner made his way to the small lawn in front of the building. Carter pursued the petitioner outside and began shouting for assistance. Carter restrained the petitioner against a fence until the police arrived.
Brian Salkeld and Shawn St. John, officers with the Hartford police department, then separated the defendant and Carter. The officers spoke with witnesses at the scene, including Carter. Carter recounted the relevant events that had transpired, and the officers investigated the laundry room.
On the basis of their interviews and their investigation of the laundry room, which revealed evidence of the defendant's efforts to pry open the coin boxes on two laundry machines, the officers decided to place the defendant under arrest and take him into police custody.
When the officers attempted to place handcuffs on the petitioner, the petitioner became hostile and uncooperative. The officers physically struggled with the petitioner as they handcuffed him. The petitioner shouted threats at the officers. The petitioner disobeyed or was slow to comply with the officers' various commands.
Here, the court finds that the petitioner is in the custody of the commissioner of corrections, and by virtue of an amended complaint dated November 24, 2008, brings forth his claims through counsel, essentially alleging ineffective assistance of both his trial counsel and his appellate attorney with regard to the prosecution of State v. Peay and the subsequent appeal.
The court finds that the petitioner was, in fact, represented in his appeal by Attorney Katherine Goodbody, if I have not so previously stated. With respect to count one, the petitioner sets forth his claims against his trial counsel, William O'Connor.
Paragraph 11 of count one alleges that the attorney failed to adequately consult with or advise the petitioner concerning the consequences of going to trial before a jury, as opposed to the consequences of accepting a plea agreement. The paragraph also alleges that counsel waited until the beginning of trial to discuss these ramifications or consult with the petitioner, failed to advise the petitioner of the mandatory minimum and maximum exposure in total incarceration the petitioner could receive on each charge, failed to advise the petitioner of the effects of accepting a plea versus the consequence of proceeding to trial. The petitioner in that same paragraph claims he was unable to make an informed decision on whether or not to accept a plea offer or go to trial.
Before reaching the merits of this claim, as well as the other sub-allegations against the trial attorney, or the appellate attorney, for, that matter, the court will review very briefly the well-accepted law in the area of habeas corpus, and here, counsel for the petitioner has, in fact, in her closing argument, referenced the two-prong standard well-accepted and known by both experienced trial counsel.
And before proceeding further, the court should have taken the time to thank both counsel for an orderly presentation of the evidence, as is their custom, having appeared before this court before.
With regard to the general law, a petitioner claiming ineffective assistance of counsel must prove both deficient performance and prejudice. Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.
If the petitioner should fail on either ground, the court can deny relief. It is well established that the habeas court cannot in hindsight second guess an attorney's trial strategy.
Here, with regard to the allegations in the paragraph already referenced, the court notes the following with regard to the evidence as it bears upon the issues.
The court does accredit the testimony of Attorney O'Connor. In so doing, the court had the opportunity to witness Mr. O'Connor's testimony, measuring his ability to recall the circumstances surrounding his previous representation of the petitioner.
The court notes that at the time Mr. O'Connor was appointed to represent Mr. Peay, he had previously done his undergraduate work at the Central Connecticut State College, having received a B.A. in Philosophy. He thereafter attended Western New England College of Law, where he became skilled in the law, receiving a juris doctor. Thereafter, he was employed in private practice for approximately six years. He thereafter began working as a public defender on a contract basis and doing per diem work at G.A. 16 in West Hartford. In 1997, Mr. O'Connor became a full-time public defender.
In March 2003-2004, the court accredits Mr. O'Connor's testimony that he had handled hundreds of criminal cases. He was employed on a full-time basis as a public defender, and this court knows that such position involves representation of individuals accused of felonies and misdemeanor offenses. The court accredits Mr. O'Connor's testimony that he handled dozens of burglary cases.
Here, the court accredits Attorney O'Connor's testimony that upon appointment, he, in fact, filed a discovery motion in June 2003. In addition, he accessed all the information regarding documents, charging documents, statements and the like, pursuant to the so-called open file policy in use at Hartford court.
With regard to this open file policy, the court knows that it provides that defense counsel may have complete access to all of the pertinent information regarding the allegations against the accused. This court finds that Mr. O'Connor did avail himself of this information. He also reviewed the information with his client. The court accredits Attorney O'Connor's testimony in that regard.
The court also accredits Attorney O'Connor's testimony that it would be his custom to review the maximum and minimum exposure, explaining the issue of punishment and probation, the issue and process of voir dire, rules of procedure, the process of plea negotiation. The court accredits Attorney O'Connor's testimony that he reviewed all of this with Mr. Peay.
In addition, the court accredits Mr. O'Connor's testimony that he met with Mr. Peay some eight to ten times before trial, met him in the lockup at court in his capacity as counsel, and then in his capacity as standby counsel during that pro se period previously referenced, and then when he, Mr. O'Connor, resumed the position of attorney, in fact, for Mr. Peay.
The court also accredits Attorney O'Connor's testimony that he gave a copy of the police report and relevant documents to Mr. Peay. He obtained a plea offer; in Mr. O'Connor's view, not a good offer. The offer was ten years to serve. He communicated that offer to Mr. Peay. Mr. Peay declined it. There was an alternative offer with four years to serve, four years special parole, which was equally declined. This court finds that it was Mr. Peay's decision to decline to accept any plea offers and to proceed to trial.
This court finds also that at the time Mr. Peay was presented on these charges, he had considerable experience with the criminal justice system. The court finds that he had in excess of one dozen arrests over a 25-year-plus time span, including arrests in the state of Ohio, as well as Connecticut. He had a substantial felony history by way of conviction, including burglaries, an escape, crimes of theft and other offenses, and, hence, Mr. Peay was not totally unfamiliar with the court process, had he been a first-time offender.
This court finds also that Mr. O'Connor, in fact, filed a motion in limine to exclude some uncharged misconduct evidence. The court also finds that Mr. O'Connor was successful, to the extent he kept out evidence of other pending charges involving a break-in of a coin operated laundry machine, certain facts of which, arguably, were similar to facts involved in the instant offenses which give rise to Mr. Peay's incarceration.
This court finds that Mr. O'Connor in fact discussed the ramifications of proceeding to trial versus accepting a plea and, thus, accredits Attorney O'Connor's specific testimony in that regard. The attorney also testified that he reviewed the years of exposure.
In addition, the court accredits the testimony and the trial record reveals that Judge Keller at one point reviewed exposure which Mr. Peay was facing. The court also finds that at some point the State of Connecticut filed a substitute information actually increasing the exposure in total regarding years to Mr. Peay. At one time Mr. Peay was informed by Judge Keller his total exposure was 46 years, when upon entry of the substitute information Mr. Peay's exposure went up considerably.
The court notes, just by way of reference, that Mr. Peay was sentenced to 12 years total effective sentence with five years mandatory minimum, arguably, only two years net increase over the pretrial offer of ten years. Obviously, that's different than the four years with four years special parole, but this court somewhat gratuitously views that additional penalty as really being on the lower side after exercising his right to a trial, and Mr. Peay ought not and was not penalized by exercising his right to a trial, but it's not inconceivable that an individual with Mr. Peay's history, as related in the record, as well as the graphic violence giving rise to these charges could very well have been sentenced to a period of incarceration two or three times in excess of 12 years.
With regard to the allegations in the paragraph 11 previously referenced, this court finds the proof insufficient to establish any deficient performance on the part of Attorney O'Connor, so the court need not get to the issue of prejudice.
This court finds tacitly that Mr. O'Connor adequately discussed the matters of plea negotiation and the consequences thereof with Mr. Peay and that Mr. Peay took a very involved, if not vigorous involvement in his own advocacy. It appears from the record that Mr. Peay indeed may have had some prior trial experience, and indeed experience in representing himself.
Judge Miano touched upon certain of these historical points in the September 8, 2003 transcript, which is in evidence, wherein Judge Miano somewhat presciently forecast that Mr. Peay would not really know what he was doing if he were to assume the role of an attorney because he is not trained as such. Nonetheless, he granted the motion to withdraw or terminate Mr. O'Connor at that time.
With regard to paragraph 12, the petitioner alleges that trial counsel failed to advise the petitioner verbally or in writing of the elements of each crime and that the petitioner was unable to make an informed decision as to whether or not to accept the plea or go to trial.
This court finds the evidence insufficient to establish that counsel did not adequately advise the petitioner of the consequences of declining an offer and proceeding to trial. The court accredits the testimony of the petitioner's former attorney, Mr. O'Connor, in this regard.
This court makes a finding that the petitioner was able to make an informed decision and, in fact, made an informed decision on both the declination of any pleas and the decision to proceed to trial, to force the State of Connecticut to meet their burden of proof beyond a reasonable doubt. The evidence with regard to paragraph 12 is insufficient.
With regard to paragraph 13, it is alleged that trial counsel failed to file and/or make pretrial pleadings on behalf of the petitioner, specifically a motion to dismiss, or a motion to dismiss for lack of physical evidence, a motion in limine to exclude testimony of the victim seeing the petitioner in the building on two prior occasions. I'll address these in the order that they are alleged in the paragraph.
With regard to the motion to dismiss for lack of physical evidence, this court finds no deficient conduct on the part of the attorney for the reason that scientific evidence is not required in order to establish guilt.
The court takes judicial notice of the appellate court decision wherein one of the claims presented to the appellate court was sufficiency of evidence and the court tacitly found sufficient evidence in the record to sustain the finding by the jury of guilt. The absence of fingerprints, burglary tools and the like is really inconsequential, and even if any motion to dismiss was filed in the manner described by the petitioner, this court cannot imagine any trial court granting such a motion. Again, that conclusion is underscored inferentially by the appellate court's upholding of the conviction based upon sufficiency of evidence.
With regard to a motion in limine to exclude the testimony of the victim, it is clear from the trial court record and also the appellate court opinion that the evidence by Mr. Carter of seeing Mr. Peay at the premises previously was clearly admissible, was not and did not fall into the category of uncharged misconduct, but had to do with corroborating the identity of the petitioner, whom he claimed physically assaulted him at close range with a weapon, which assault commenced in the laundry basement and spilled out into the exterior portion of the premises.
The court notes that in proceeding to trial, the court finds that Mr. O'Connor and Mr. Peay developed a defense strategy, specifically that Mr. Peay was at the premises to visit an Aunt Dorothy, I believe her name is, and that's why he was present. Unfortunately, this could not be corroborated by any evidence advanced by the defendant.
There was no error in the admissibility of the eyewitness testimony of Mr. Carter seeing the petitioner on two prior occasions and, for the reasons already stated, the evidence certainly was relevant and the court was certainly within its discretion to admit such testimony, and had it even undertaken a more prejudicial than probative analysis, clearly, the relevant aspect outweighed any prejudice to the petitioner.
There is a claim that there should have been a motion to strike this testimony, a motion in limine and/or motion for partial dismissal, claiming some type of defect in the long form information. With regard to any of the claims previously discussed, the court just does not see any basis for counsel required to do so.
However, in this same paragraph 13, the petitioner complains that his trial attorney should have moved to dismiss charges based on a theory of double jeopardy that the petitioner was being charged in violation of his constitutional rights by virtue of the two subsections in the burglary statute.
The short answer to this claim is that the appellate court in its decision precisely held that there was no double jeopardy violation. The court did undertake an analysis under Blockburger v. United States and found that under the analysis, clearly, where an allegation exists in one count factually where by way of proof that does not exist in another count, the charges survive any Blockburger or double jeopardy analysis. Colloquially put, the defendant is not being penalized twice for the same crime. The offenses are distinct and this court needn't go into a further statutory analysis than the appellate court, per Judge Harper, more than adequately did in its opinion in the case previously cited.
The court accredits both the testimony of Attorney O'Connor and Mr. Peay that the pair actually discussed and considered this issue of double jeopardy. Attorney O'Connor said he reviewed it and dismissed it and did not see any issue whatsoever. Mr. Peay today testified at length about discussion involving the double jeopardy claim, of bringing it up.
It's clear that aside from being correct on the law, Mr. O'Connor made a tactical decision not to bring it up and to not raise a claim which he did not think was successful. That decision by the trial attorney does not give rise to any habeas relief under the facts of this case.
The decision of a trial lawyer not to make an objection as a matter of trial tactics is not evidence of incompetency. Levine v. Manson, 195 Connecticut 636, page 648, a 1985 decision.
"There is a strong presumption that a trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment . . ." Iovieno v. Commissioner of Correction, 67 Conn.App. 126, 128, 2001; cert. denied 259 Conn. 916, 2002.
Here, the court finds no deficiency in Mr. O'Connor's failing to advance some type of double jeopardy objection to the pendency of two counts of burglary in the first degree under the different and distinct subsections for which Mr. Peay was both charged and convicted, and for those reasons, so much of paragraph 13 which claims ineffective assistance of trial counsel is unproven.
In that same paragraph the petitioner also claims that the attorney failed to protect the petitioner's appellate rights on this particular claim. The court finds that claim unproven. In fact, the appellate court addressed the claim and found no error.
There's reference to some claim that the petitioner would have been exculpated if a count was dismissed. This court finds no proof on that issue and, for all of the reasons articulated, the allegations in paragraph 13 of count one are unproven.
It is alleged in paragraph 14 again that trial counsel failed to raise double jeopardy on the two counts of burglary in the first degree and again that trial counsel failed to preserve the record for appeal by failing to raise the issue of double jeopardy. For the reasons previously discussed, this claim is unproven.
Paragraph 15 alleges that trial counsel failed to properly cross-examine Natalee Kelly by failing to ask her questions relevant to the issue of self-defense. The paragraph also alleges that specific questions should have been asked regarding who initiated the altercation; who was the aggressor; did the victim have a weapon; if so, what type; did she see the petitioner assault the victim.
Clearly, a lawyer's line of questioning and cross-examination is a matter that is tactical and, again, this court will not offer habeas relief where the scope of cross-examination is something that is undertaken by an attorney in the so-called heat of trial where, even assuming the counsel or attorney cross-examined further, there is no showing that additional cross-examination would have somehow benefited the petitioner.
"Competent representation is not to be equated with perfection. 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." That's from Toccaline v. Commissioner of Correction, 80 Conn.App. 792, pages 798-99, 2004.
Here, the record indicates cross-examination conducted by trial counsel, and nothing in this trial has been offered to indicate any deficient performance on the part of Attorney O'Connor. For those reasons, the allegations in 15 are unproven.
Paragraph 16 alleges that trial counsel failed to protect the record for appeal by failing to request that the court keep Natalee Kelly under subpoena so as to testify to the first and second 911 tapes.
For reasons that the court will address in a moment, the issue with regard to the issue of the 911 tapes, this court finds insubstantial any claim with regard to the admissibility thereof.
In review of the trial court's transcripts, it's clear that there were many grounds for the attempted offer of the tapes aside from authenticity, not the least of which trial counsel claimed the 911 tapes would create some type of prior inconsistent statement for the witness, Natalee Kelly. The trial judge, Judge Keller, tacitly found no inconsistency in any of the 911 tapes, and with regard to the 911 tapes and what is borne out by the trial transcripts of the essence of what was stated in those tapes, there's nothing to lead this court to believe that had the tapes come into evidence, that the tapes would have in any way affected the outcome of the petitioner in some positive way.
For reasons already said, the appellate court did an analysis and found substantial evidence to justify the finding of guilt, not the least of which was the eyewitness testimony of Mr. Carter, who described finding Mr. Peay in the basement, literally caught in the act of breaking open the coin device in the laundry machine, and then the physical altercation involving the crowbar which ensued. Mr. Carter was before the jury, was subjected to vigorous cross-examination, and his ability to both perceive events and recall events at the time of trial was certainly adequately covered by his attorney, Mr. O'Connor.
This court has no basis to conclude that even if the tapes were admitted, again, it would have affected the outcome in any positive way for Mr. Peay to lead this court to conclude that manifest injustice has been done with regard to the trial of the underlying case or that error of constitutional dimension has occurred warranting that Mr. Peay be granted a new trial or some other relief for which he prays. For that reason and other reasons to be addressed, the allegation in paragraph 16 is unproven.
With regard to paragraph 17, it's alleged that counsel failed to properly cross-examine Officer Brian Salkeld on various aspects. This court has insufficient evidence to conclude that the petitioner should prevail on this claim and finds the claim unproven.
With regard to 18, there is an allegation of inadequate cross-examination of Mr. Salkeld, failure to protect the record on appeal. There's no evidence before this court to establish, again, that had additional examination been obtained with regard to Mr. Salkeld, said examination would have in some way favored Mr. Peay to suggest the outcome would have been different. For that reason, paragraph 18 is unproven.
As was previously noted, the scope of cross-examination is something that is tactical in nature and, again, this court will not disturb, or order a new trial based upon these facts.
With regard to allegations 19, 20, 21 and 22, the petitioner claims that the 911 tapes, had they been introduced, had they been properly authenticated, would have resulted in a not guilty finding; in addition, that counsel failed to protect the record regarding the 911 tapes.
For the reasons already cited, there's nothing to suggest any deficient performance in the failure to further pursue Natalee Kelly as the potential originator of the voice on the 911 tapes, or that if the tapes were introduced, based upon the partial transcript of the substance of these tapes in the trial court record before me, that it would in any way have affected the outcome favorably for Mr. Peay.
The court notes any marginal value in discrepancies on whether or not an altercation occurred inside, outside, as is referenced in the 911 tapes, is that, marginal, and in no way undermines the probative value of other evidence to establish guilt, and for those reasons, pursuant to the case of Small v. Commissioner, which the court will address in the second count, there is no basis for which this court can conclude that preserving any of the issues complained about in count one would have in some way shown that Mr. Peay would have prevailed on appeal. There is no prejudice shown.
To satisfy the prejudice prong when dealing with a legal issue or an appeal, the petitioner must show a reasonable probability that, but for counsel's error, he would have prevailed on his appeal.
Now, that was in the context of ineffective assistance of an appellate attorney, but the rule of law has no less value in this context where the trial attorney is being claimed of ineffective assistance for failing to preserve an appellate court record. Small v. Commissioner is 286 Conn. 707, at 720; cert. denied, Small v. Lantz, 129 Supreme Court 481, 2008. For all of those reasons, all of the paragraphs dealing with the 911 tapes are unpersuasive and the petitioner's evidence is insufficient to prove these claims.
With regard to paragraph 23, it is alleged that petitioner's counsel was ineffective for failing to object to certain aspects of the pretrial investigation report, the so-called PSI, presumably reviewed by the court at the time of sentencing.
Here, the court accredits the testimony of Mr. Peay brought out on cross-examination that Mr. Peay took time to point out at sentencing many of the discrepancies he claimed existed regarding his criminal history, his employment history and his drug use. In fact, Mr. Peay maintained that any statement by the probation officer of prior drug use was false, but, again, the petitioner fails to note one of the tacit findings in the appellate court decision by Judge Harper, which was there is no way to conclude that the trial court considered any of this information in the actual implementation of the sentence.
Hence, the petitioner has not proven prejudice, even assuming he could establish deficient performance, which this court does not find. This court cannot read into the mind of Judge Keller, no more than Judge Harper could not, or the appellate court, in determining that any claim of deficient performance regarding discrepancies in the PSI was in any way prejudicial.
The court previously noted, with regard to the sentence employed, this court views the sentence of 12 years to be on the low end of the potential range of sentences where the petitioner was exposed to probably in excess of 60 years incarceration and there's no way to conclude that giving the petitioner the benefit of the doubt regarding discrepancies, that the existence of any discrepancy or the failure of the attorney to point out any discrepancy in any way prejudiced the petitioner.
For all of those reasons, this court cannot conclude that Attorney O'Connor's conduct was deficient or fell below the range of competence expected of lawyers similarly situated in defense of any individual such as Mr. Peay on these very serious crimes and offenses. The court finds neither violation under the federal nor Connecticut Constitution warranting any relief.
With regard to count two, the court has already reviewed the law with regard to Small v. Commissioner. It is specifically alleged at paragraph 27 that appellate counsel, Attorney Goodbody, failed to adequately research the issue of double jeopardy, and had she researched it a different way, presumably the outcome would have been different.
This is simply unproven. A fair reading of the appellate court decision indicates a thorough analysis on the double jeopardy issue. The decision speaks for itself. The court found no error in the outcome of the finding of guilty under both Section 53a-101(a)(1) and 53a-101(a)(2).
In addition, the court notes that Mr. Peay was sentenced to 12 years concurrent on each of those counts. I cannot hypothecate a situation of prejudice under these circumstances.
Paragraph 28 alleges that appellate counsel failed to adequately brief the issue of double jeopardy by failing to provide argument regarding legislative intent. The short version on this issue is that there's no basis for this court to conclude any deficient performance, or had the appellate attorney done a legislative intent analysis, that, again, the outcome of the appeal would have been different in any way, or more favorable to Mr. Peay, and for that reason, paragraph 28, the allegations therein are unproven.
Paragraph 29 alleges that appellate counsel failed to provide legislative analysis having to do with the petition for certification and whether some legislative analysis on any of the issues would have, again, in any way benefited the petitioner.
The court finds that claim to be unproven. The court is bound to follow the fairly new test under Small v. Commissioner that the petitioner must show reasonable probability that, but for counsel errors, he would have prevailed on his appeal. There is insufficient evidence to draw that conclusion here.
The court finds no deficiency on the part of Attorney Goodbody and, in so doing, accredits her testimony that at the time Attorney Goodbody accepted this appointment she had attended the University of Pennsylvania with a Bachelor of Arts in Sociology, obtained her law degree from the Catholic University. She actually worked as corporate counsel, worked in general and special litigation for ten years, had been doing appeals since the 1990s, had done some 15 to 20 criminal appeals at the time she accepted the appointment for Mr. Peay, and to her credit, Attorney Goodbody actually consulted the petitioner upon getting all the relevant transcripts, the records, the PSI, criminal history, the complete file from the Public Defender's Office and applied her skills in determining what issues to present on appeal. It was her tactical decision to advance the double jeopardy argument, which she believed had some merit. The court cannot find any deficient performance or prejudice on the part of Attorney Goodbody under these circumstances.
For the foregoing reasons, the court, in all respect, denies Mr. Peay's petition for writ of habeas corpus. Judgment shall enter in favor of the respondent.
The petitioner is requested through counsel to prepare a judgment file within thirty days.
I am requesting that a transcript of this on bench ruling be prepared for my signature. It shall constitute a memorandum of decision.
I am also requesting that notice of appeal rights be prepared by the clerk, and the record shall reflect the clerk has prepared those appeal forms, handed the same to the marshal, and the marshal is serving Mr. Peay and his counsel with notice of his appeal rights in accordance with law.
With that, this matter is concluded. Court stands adjourned until 10 a.m. tomorrow morning. Thank you.