Ineffective Assistance at Sentencing in Connecticut Habeas Corpus

How might ineffective assistance at sentencing impact a habeas corpus petition in Connecticut? Find out here.

[A] criminal defendant has a constitutional right to effective assistance of counsel during the sentencing stage and a constitutional right not to be sentenced on the basis of improper factors or erroneous information.” State v. Patterson, 236 Conn. 561, 573 (1996); also see Mempa v. Rhay, 389 U.S. 128 (1967)(constitutional right to counsel at sentencing); Also Hilton v. Commissioner, 161 Conn. App. 58, 77 (2015).

Counsel’s Representation at Sentencing

Counsel’s representation at sentencing “is an extremely important part of the complete defense…” ABA Standards for Criminal Justice, Defense Function (3rd Ed. 1993), Standard 4-8.1, Commentary. “[T]he Supreme Court has even suggested that the need for counsel may be greater at sentencing than in the determination of guilt because ‘[t]here a judge usually moves within a large area of discretion and doubts. In addition, even the most self-assured judge may well want to bring to his aid every consideration that counsel for the accused can appropriately urge.’” Id. (Quoting Carter v. Illinois, 329 U.S. 173, 178 (1946)). Thus, “effective defense counsel will present to the court all relevant mitigating material consistent with the defendant’s best interests and will ensure that all information presented to the court by the state meets the standards of reliability and relevance applicable during sentencing.” State v. Patterson, 236 Conn. at 573.

In addition, standard 4-8.1(b) of the ABA Standards for Criminal Justice, Defense Function (3rd Ed. 1993) provides in pertinent part:

So, defense counsel should present to the court any ground which will assist in reaching a proper disposition favorable to the accused. Also, if a presentence report or summary is made available to defense counsel, he or she should seek to verify the information contained in it and should be pre – pared to supplement or challenge it if necessary. Then, if there is no presentence report or if it is not disclosed, defense counsel should submit to the court and the prosecutor all favorable information relevant to sentencing.

Ineffective Assistance

Also, a claim of ineffective assistance of counsel at sentencing is analyzed under the two-pronged Strickland test. First, the petitioner must demonstrate that counsel’s performance was deficient, in that it “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688; see Davis v. Commissioner, 319 Conn. 548, 555 (2015).

Second, the petitioner must demonstrate that “actual prejudice” resulted. Also, this requires the petitioner to establish, “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland , 466 U.S. at 694; see Davis v. Commissioner, 319 Conn. at 555; see also Vega v. Commissioner, 103 Conn. App. 732, 734 (2007)(“[I]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding…Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted; citation omitted)), cert. denied, 285 Conn. 905 (2008).

However, if counsel’s deficient performance at sentencing, “fails to subject the prosecution’s case to meaningful adversarial testing” or otherwise constitutes an, “actual breakdown in the adversarial process,” prejudice is presumed under United States v. Cronic, 466 U.S. 648, 655-60 (1984). In addition, see Davis, 319 Conn. at 555-56, 560-69 (prejudice presumed under Cronic where defense counsel at sentencing agreed with the State’s recommendation that the maximum sentence under the plea agreement be imposed). Also, per se prejudice at sentencing and Cronic’s application is discussed in Bell v. Cone, 535 U.S. 685, 697 (2002).

Connecticut Cases

Also consider the following recent Connecticut cases. These cases concern a claim of ineffective assistance of counsel at sentencing: First, Davis v. Commissioner, supra, 319 Conn. 548 (ineffectiveness found for complete failure to advocate for lesser sentence); Also, Hilton v. Commissioner, 161 Conn. App. at 76-78 (ineffectiveness not found for failure to present relatives who would have commented on petitioner’s positive attributes); And finally, Vega v. Commissioner, 103 Conn. App. 732, 734 (2007)(ineffectiveness not found for failure to present mitigating evidence, specifically, psychiatric evaluation), cert. denied, 285 Conn. 905 (2008).

Also, for further discussion on deficiencies of counsel related to sentencing, see infra R. AMENDED PETITION 3.a.ii. For Sentencing.

Defendant’s Rights

A defendant also has a constitutional right to effective assistance of counsel at the sentence review hearing authorized under General Statutes § 51-195 and Practice Book § 43-23, et seq. See Consiglio v. Warden, 153 Conn. 673 (1966)(right to effective assistance of counsel at sentence review). In addition, an adjunct to the right to effective assistance of counsel at sentence review is the right to be informed of the right to sentence review and, if such review is desired, to have the application timely filed and perfected. Also see General Statutes § 51-195; Practice Book § 43-23, et seq. Strickland’s two-pronged inquiry applies to ineffective assistance of counsel claims that concern sentence review. In addition, review Hilton, 161 Conn. App. at 81 (claim of failure to file petitioner’s sentence review application analyzed under Strickland).

So, if the evidence indicates that the petitioner was aware of the right to sentence review, the petitioner must demonstrate that he desired sentence review and that he communicated his desire to counsel. See Id. ; see also James L. v. Commissioner, 245 Conn. 132, 136-48 (1998); Also Eastwood v. Commissioner, 114 Conn. App. 471, 484, cert. denied, 292 Conn. 918 (2009); In addition Andres v. Commissioner of Correction, 108 Conn. App. 509, 513-16, cert. denied , 289 Conn. 906 (2008); Also Valentin v. Commissioner, 94 Conn. App. 751, 758 (2006); Finally Ramos v. Commissioner, 67 Conn. App. 654, 667, cert. denied, 260 Conn. 912 (2002).

Finally, the habeas court has the authority to restore the petitioner’s right to sentence review where it has been shown that the petitioner wanted sentence review and that counsel’s breach prevented him or her from receiving it. In addition. see James L. Commissioner, 245 Conn. at 136-48; see also Janulawicz v. Commissioner, 310 Conn. 265 (2013).