2009 Ct. Sup. 18706
No. CV06-4001094SConnecticut Superior Court Judicial District of Tolland at Rockville
October 5, 2009
DECISION
NAZZARO, J.
THE COURT: We’re back on the record regarding Mr. Kenneth Myers v. Warden, and the Court has taken time to review those portions of the exhibits which the Court deems relevant. The Court did not read in their entirety the various briefs filed in the prior appeals stemming from Mr. Myers’s convictions, however, the Court read those portions of the transcript which the Court determined was relevant with regard to this claim. The Court is prepared to rule.
The petitioner has set forth his claims by way of amended petition dated May 15, 2005. The respondent has filed a return dated June 16, 2009.
Did I say May 15, 2005? May 15, 2009. The return is dated June 16, 2009.
Essentially, the petitioner sets forth two claims. Firstly, a claim of ineffective assistance of trial counsel in count one, and, secondly, an ineffective assistance of appellate counsel claim in count two. The respondent denies each count.
The Court makes the following findings.
The petitioner, Mr. Kenneth Myers, was the defendant in a matter o State v. Myers in the Judicial District of Danbury, Docket Number CR04-0120661. The defendant was charged by way of information with a number of criminal violations, including violating Connecticut General Statute Section 21a-278a, possession of narcotics with intent to sell by a non-drug-dependent person, violating Connecticut General Statute Section 21a-277(a), possession of narcotics with intent to sell, count three was possession of narcotics with intent to sell within 1500 feet of a school in violation of Connecticut General Statute Section 21a-278a(b) and possession of narcotics in violation of Connecticut General CT Page 18707 Statute Section 21a-279(a). The petitioner was also charged with a violation of probation and also charged on a so-called Part B information with being a repeat offender on the charge of sale of narcotics in violation of Connecticut General Statute Section 21a-277a.
The defendant-petitioner was represented at trial by Attorney Vicky Hutchinson, Attorney Hutchinson having accepted an appointment as a special public defender.
The Court finds that Attorney Hutchinson represented Mr. Myers pretrial and in the course thereof obtained copies of all reports and documents available from the Office of the State’s Attorney concerning the charges against Mr. Myers.
In the course of pretrial discussion, the Court finds that Attorney Hutchinson maintained a private practice of law in the Danbury area and as a special reviewed the allegations with her client. In addition, the Court notes that Mr. Myers was also charged with a number of motor vehicle offenses under a separate docketed matter.
The Court finds that Mr. Myers was extended a pretrial offer to resolve all of his cases globally for a total effective sentence of twenty years, suspended after serving ten years, with a period of probation. That offer was refused by Mr. Myers.
The Court finds that it was Mr. Myers’ decision to proceed to trial before a jury on the criminal violations and to proceed by a trial before the court on the violation of probation.
Upon being tried by a jury on the non-VOP charges, the petitioner was found guilty on March 23rd, 2005 of possession of narcotics with intent to sell, possession of narcotics with intent to sell within 1500 feet of a school and possession of narcotics in violation of Connecticut General Statute 21a-279a. The petitioner was found not guilty of possession of narcotics with intent to sell by a non-drug-dependent person. Upon hearing before the judge, the Honorable John Downey, the petitioner was found in violation of probation. Between his conviction and sentencing, a presentence investigation was conducted by the Office of Adult Probation.
On May 25, 2005, the petitioner was sentenced by the court, Judge Downey, to a term of imprisonment of thirty years state’s prison, suspended after serving ten years, with five years probation on the CT Page 18708 charge of possession of narcotics with intent to sell. The court further sentenced the petitioner to a term of imprisonment of three years to serve on the charge of possession of narcotics with intent to sell within 1500 feet of school, that sentence to run consecutive to the sentence previously referenced. In addition, the court also sentenced the petitioner to five years concurrent on the violation of probation. The court also sentenced the petitioner to a term of imprisonment on the possession of narcotics concurrent to the sentence previously imposed. The total effective sentence of the petitioner following trial before the judge and the jury was thirty years, suspended after thirteen years, with five years probation.
Subsequently, the petitioner appealed his convictions to the appellate court in the matter of State v. Kenneth Myers, a reported decision at 101 Conn.App. 167. The appellate court in their decision affirmed in part and reversed in part the judgment for Mr. Kenneth Myers.
This Court need not detail the findings of that court. Suffice to say, the state sought and was granted certification of appeal of the appellate court decision to the supreme court, which granted cert, and in its decision reported at 290 Conn. 278, a decision rendered on February 3 of 2009, the supreme court reversed the judgment of the appellate court and found no reversible error in the trial court’s sentence or the trial of Mr. Kenneth Myers both with respect to the criminal offenses and also the criminal violation of probation.
The petitioner was represented on his appeals to both the appellate court and the Connecticut Supreme Court by Attorney Alice Osedach from the Office of the Chief Public Defender.
With regard to the facts underlying the original trial, the Connecticut Supreme Court sets forth the salient facts in its review and in an opinion authored by Justice Peter Zarella the Court notes the facts at page 280.
On June 18, 2004, the defendant, petitioner herein, was arrested in the city of Danbury for operating a motor vehicle with a suspended driver’s license. The passenger in his vehicle, Susan Curtis, was also taken into custody pursuant to an outstanding arrest warrant stemming from her failure to appear for a motor vehicle case in 1997.
Subsequently, Curtis revealed to the police that the defendant had CT Page 18709 given her a quantity of illegal narcotics to conceal when they were stopped by police. After a search of her person, the police recovered a package containing 14 small bags that subsequently were determined to contain powdered and crack cocaine.
On the basis of those facts, the defendant was charged in the first part of the two-part information with possession of narcotics with intent to sell by a person non-drug-dependent in violation of General Statute 21a-278(b), possession of narcotics with intent to sell in violation of Section 21a-277(a), possession of narcotics with intent to sell within 1500 feet of a school in violation of General Statute Section 21a-278a and 21a-279(a)
Prior to the trial the defendant was advised that the state also had charged him (Mr. Myers) in the second part of the information Part 2, seeking an enhanced sentence for his alleged violation of the repeat offender provisions of Section 21a-277.
In a separate information the state charged the defendant with violation of probation. The petitioner waived a trial on the Part B, and, as was previously noted, a violation of probation hearing was conducted outside the presence of the jury with the probation officer, Rolanda Mitchell, testifying as to her period of supervision and also the conviction of Mr. Myers in 2003 stemming from a sale of narcotics case.
With regard to this matter, as was stated, the first count alleges ineffective assistance of trial counsel, Attorney Hutchinson, and the second count alleges ineffective assistance of appellate counsel Osedach.
With regard to this claim, all parties are guided by the case o Strickland v. Washington, wherein the United States Supreme Court annunciated the two requirements that must be met before a petitioner is to prevail on a petition for writ of habeas corpus. The petitioner must show, one, deficient performance, and, two, prejudice.
With regard to any claim of ineffective assistance of counsel, it’s well established that a habeas court cannot in hindsight second guess an attorney’s trial strategy.
There is a strong presumption that attaches to trial strategy employed by a criminal defendant’s counsel and that presumption is accorded to counsel here according to the line of cases, among them CT Page 1871 Iovieno v. Commissioner of Correction, 67 Conn.App. 126, 128, 2001, cert denied 2002.
There are other cases which apply to certain circumstances here. With regard to the standard in regard to the appeal, the Court will address that after addressing the claims of ineffective assistance of trial counsel.
Here, specifically, the petitioner alleges on page five of his petition that trial counsel failed to properly and adequately cross-examine the state’s witness, Susan Curtis. That’s alleged in paragraph 17.
There is insufficient proof on that particular allegation. A lawyer’s line of questioning has been held to be tactical in nature. See State v. Drakeford, 63 Conn.App. 419, 2001.
There’s no evidence before this Court to substantiate that any examination or cross-examination of Susan Curtis was deficient or that the scope of the examination or substance thereof prejudiced Mr. Myers.
Today, the Court heard testimony from trial counsel, Ms. Hutchinson, who testified that upon review of the strengths of the state’s case and her client’s decision to proceed to trial, certain defense theories were discussed in advance, among them that Mr. Myers went to visit Ms. Curtis or picked up Ms. Curtis as her driver, or at the time of trial, in the alternative, that any contraband found belonged to Ms. Curtis.
It’s clear from the record that counsel cross-examined Ms. Curtis with regard to the strategies discussed with Mr. Myers. Furthermore, Attorney Hutchinson credibly testified that Mr. Myers understood the nature of the defense to be advanced at trial.
There is nothing before the record to indicate that Mr. Myers opposed any of the strategies which in fact counsel employed. Any scope of the examination would be a tactical decision. The record before this Court is inadequate to establish either deficient performance or prejudice, and for that reason, 17 is unproven.
With regard to paragraph 18, it is alleged that counsel did not advise the petitioner of the nature of the evidence relied upon in support of the charges. CT Page 18711
Here the Court again heard testimony from Attorney Hutchinson, who performed her undergraduate work at the University of California, graduating in 1979. She thereafter became an attorney after attending the Quinnipiac College of Law, then known as the University of Bridgeport. As of 1988, Attorney Hutchinson accepted appointments to represent individuals accused of crimes as a special public defender. At the time she accepted the appointment to represent Mr. Myers, approximately sixty, sixty-five percent of her practice involved representing criminal defendants.
Here, the attorney credibly testified that she reviewed the evidence with her client and her client indicated an understanding of the evidence. What’s more, the Court accredits the attorney’s testimony that her client believed that he was drug-dependent at the time of the offenses and desired to proceed to trial, or not accept the one and only state’s offer for the accused, Mr. Myers, to plead guilty to possession with intent to sell by a non-drug-dependent person and accept the twenty-year sentence, suspended after ten years to serve, with a mandatory minimum period of incarceration.
This Court, frankly, does not accredit the testimony heard by the petitioner today that the attorney did not review the evidence with Mr. Myers. The Court accredits Mr. Myers’ own testimony that he graduated from high school, having attended, I believe, the Thomas Jefferson School in Brooklyn, New York and obtained a high school diploma. There was nothing in the testimony by the petitioner today to indicate that the petitioner was not academically or intellectually incapable of understanding conferencing between he and his former attorney, Ms. Hutchinson.
The Court accredits Attorney Hutchinson’s testimony that she met with the petitioner on a number of occasions and certainly in excess of six court appearances at Danbury, during which the attorney substantively and procedurally discussed the evidence against her client.
For that reason, paragraph 18 and the allegations therein is unproven.
With regard to the allegation of paragraph 19, trial counsel did not adequately advise petitioner concerning the elements of the affirmative defenses available to petitioner, this Court accredits the attorney’s testimony that she discussed aspects about the defenses available to the petitioner and in fact notes that the jury CT Page 18712 returned a verdict of not guilty on the charge of possession with intent to sell by a non-drug-dependent person. The Court finds no deficiency with regard to this allegation.
The Court concludes that the petitioner was very much involved and actively involved in his defense at trial and was able to and in fact took advantage of the opportunity to consult with his attorney during each phase of the trial, including evidence before the jury on the narcotics related offenses and also the violation of probation before Judge Downey and also the decision to waive trial on the Part B information charging the then defendant with being a repeat offender on the sale of narcotics.
This Court concludes that the nature of the communication between attorney and client was meaningful and the client, Mr. Myers, indeed had an understanding of these aspects of the proceeding. For that reason, the allegations in paragraph 19 are unproven.
With regard to paragraph 20, it is alleged that trial counsel did not adequately consult the petitioner concerning the status of plea negotiations, any potential plea agreements, or the consequences of accepting a plea agreement as opposed to the consequences of going to trial.
This Court finds that these allegations are unproven. The Court has already commented about the depth and quality of communication between lawyer and client pretrial and at trial. The Court does find that only one offer was advanced pretrial and that no further offers elicited or were made by the State’s Attorney’s Office. That being the case, this Court concludes that the state did not move off of the pretrial offer requiring the then defendant to plead as a non-drug-dependent person triggering a mandatory minimum and that it was the petitioner’s decision and his alone to proceed to trial, which he elected to do.
This Court finds no prejudice in counsel’s admitted absence of pressing for additional offers or to counter with some type of offer here where there is no evidence that had counsel so pressed in negotiating, that effort would have provided any fruit for Mr. Myers. For those reasons, paragraph 20 and the allegations therein are unproven.
With regard to paragraph 21, the petitioner alleges that trial counsel exercised undue influence on petitioner’s decision with CT Page 18713 respect to proceeding to trial or accepting any potential plea offers. Suffice to say, there is no evidence whatsoever of any undue influence, as this Court interprets that term, and that is specifically the exercise of the attorney’s will over the will of Mr. Myers. This Court concludes as a matter of fact that Mr. Myers proceeded according to his own will after advice and assistance of his attorney, and for those reasons the allegations in paragraph 21 are unproven.
With regard to 22, it’s alleged that Attorney Hutchinson did not adequately advise the petitioner of his possible exposure if convicted of the crimes charged. The Court finds this allegation unproven. The Court accredits the testimony of the attorney that, as was her custom, she explained the number of years for which the petitioner was exposed had he proceeded to trial, in excess of thirty-five or thirty-eight years.
This Court finds that the petitioner appreciated the consequences of both declining the one offer advanced by the state and the consequences of proceeding to trial, and for those reasons the allegations of paragraph 21 are unproven, and the allegations in paragraph 22, I should say, are unproven. This Court finds that the attorney did adequately advise the petitioner of his possible exposure, and upon that advice, the petitioner, and the petitioner alone, elected to go to trial. This Court accredits the attorney’s testimony that she neither recommended specifically that Mr. Myers accept the plea offer, nor did she recommend specifically that Mr. Myers proceed to trial.
Allegation 23 alleges that trial counsel failed to fully consult with and advise the petitioner as to the Part B of the information and the petitioner’s exposure if convicted under Part B.
This Court finds that allegation unproven. The Court accredits the testimony of Attorney Hutchinson that she did discuss the ramifications of having a trial on the Part B and the petitioner made a waiver of any right to trial on the Part B.
In the words of the attorney, the Court accepts Attorney Hutchinson’s description that having a trial on the Part B would have been a, quote, “complete exercise in futility,” end quote, inasmuch as the court, Judge Downey, indicated his prior knowledge of Mr. Myers’ prior conviction of sale of narcotics.
The Court accredits Attorney Hutchinson’s testimony that she CT Page 18714 obtained a transcript of the canvass and sentencing regarding the prior offense in 2003, reviewed same with her client, after which Mr. Myers indicated an understanding of the record, notwithstanding Mr. Myers’ initial lack of understanding or purported lack of understanding that he was in fact previously convicted of sale.
The Court accredits the attorney’s tactical opinion and decision that there sometimes is a penalty for going to trial; not that this Court agrees with the conclusion, but accords the attorney’s opinion the respect which it deserves as a tactical decision and the attorney made that decision on Mr. Myers’ behalf along with Mr. Myers for the purpose, in colloquial speak, of picking her battles. It made no sense to perhaps take up the court’s time with an unnecessary trial where the facts were irrefutable.
This Court infers that counsel appreciated that the attorney would be before this same judge if indeed Mr. Myers was convicted or found guilty by a jury and would be before this same judge for sentencing purposes and it made sense, therefore, to save argument in putting the state through the burden of proof at another day and on another occasion.
For those reasons, there is neither prejudice nor deficient performance proven with regard to the allegation in paragraph 23.
With regard to paragraph 24, it is alleged that trial counsel failed to consult with and advise petitioner of any enhancement penalty that he may have been facing.
This Court accredits the testimony of the attorney that she in fact had such a discussion. And in all candor, in rejecting the testimony to some extent of the petitioner, Mr. Myers, the Court understands that it has been a number of years since this trial and to some extent Mr. Myers today indicated forgetfulness in whether or not in fact discussions had taken place. It stands to reason that the attorney, while assisted with some file and contents, including notes and dates, the attorney’s memory would be refreshed regarding not only what occurred here with Mr. Myers, but what was her normal custom and practice, even in the absence of a specific recollection by Attorney Hutchinson.
For those reasons, the allegations in paragraph 24 are unproven.
It is alleged in paragraph 25 that trial counsel failed to ensure the petitioner received his constitutional right to either a plea CT Page 18715 and/or a trial on the Part B. For the reasons already stated, there is no prejudice with regard to this allegation and the Supreme Court, this Court notes, in the decision of State v. Myers held that there is no constitutional right per se to the entry of a plea on the Part B issue or a trial by jury on the Part B issue as a subsequent offender. The Court finds the allegations in 25 to be unproven with regard to prejudice.
With regard to the allegation in 26, trial counsel failed to allow petitioner to speak at sentencing for the purposes of clarifying false and inaccurate information contained in the petitioner’s PSI, the Court finds that claim to be unproven.
The Court finds specifically that the then defendant, Mr. Myers, was afforded an opportunity to speak and chose not to.
The Court accredits the attorney’s testimony that she reviewed with her client, Mr. Myers, the likelihood that the court would afford Mr. Myers an opportunity to speak, as was her custom.
The Court also accredits Attorney Hutchinson’s testimony that she reviewed the presentence report prior to sentencing and also tailored the specific sentencing argument the attorney advanced to the court with remarks made by her client prior to discussing the sentencing.
The Court accredits Attorney Hutchinson’s testimony that had there been any serious exceptions to any of the representations contained in the presentence report, she would have noted same on her file, but there was an absence of any such notations, and for those reasons, the Court finds an absence of any prejudice with regard to the allegations in paragraph 26.
In addition, the Court cannot conclude that there was any false or inaccurate information in the presentence report, or, any such described information, if corrected or amended, would have somehow in any way changed the outcome here, or likely to have changed the outcome, and for all of those reasons, 26 must fail.
Paragraph 27 alleges that trial counsel failed to ensure that the petitioner received his right to a sentence review. That claim is unproven.
The Court does note in the exhibit, Respondent’s D, page 24, lines 6 through 12, it is clear upon a reading of that that Mr. Myers was CT Page 18716 handed a form advising him of his right of sentence review, and in accord with the petitioner’s own prior testimony, having been a high school graduate from Brooklyn, he would have understood those rights.
This, notwithstanding the absence of any notation in Attorney Hutchinson’s file regarding specifically sentence review, it is notable that at the May 25, `05 sentencing the clerk remarks:
“I have a notice of right of appeal, application for waiver of fees and notice of right to have sentence reviewed for each of the files. That’s the criminal file ending in 661 and the violation of probation file ending 459.”
“Ms. Hutchinson: And he does need to sign.”
“The Court: Yes, that’s correct. It has to be signed here.”
Somewhat anecdotally, this Court will note that the petitioner was exposed to a sentence far in excess of the thirty years, suspended after ten on the sale of narcotics charge, noting also the violation of probation sentence ran concurrent and the three-year sentence on the possession with intent within 1500 feet of schools ran consecutive, for the total effective sentence of thirty years, suspended after thirteen.
This Court notes that the sentence ultimately imposed after putting the state to its burden at trial was not too different and in fact three years higher net in terms of the period of incarceration from the twenty suspended after ten that he was offered pretrial.
This Court cannot speculate as to what a sentence review panel of three judges might impose, but, suffice to say, where the post-trial sentence is not too dissimilar from the pretrial offer, under these circumstances, given the Part B status, or prior repeat offender status of Mr. Myers, this Court cannot hypothecate in its wildest speculation a sentence review panel lowering, or imposing a sentence lower than that given by Judge Downey.
On the contrary, this Court can clearly hypothecate a scenario where, as the court did last term, might indeed raise Mr. Myers’ sentence significantly, perhaps thirty years suspended after twenty, but, again, this is pure speculation on this one judge’s part, and gratuitously offers the opinion had I been the attorney CT Page 18717 post-conviction, I would have likely never pursued the hallways or courtroom of a sentence review panel under these circumstances, but those comments, again, are purely speculation and gratuitous and are not meant to reflect the decisional logic of my ruling.
With regard to 27, those allegations are unproven.
With regard to paragraph 28, it is alleged that trial counsel failed to adequately preserve and protect the record on appeal. This claim is unproven.
To explain, here, petitioner’s counsel brought out on cross-examination of Attorney Osedach that the first two claims advanced in the brief were taken up by the court under State v. Golding, which provides that the court may review claims of a constitutional dimension even in the absence of a preserved claim so-called by the trial attorney. It matters not that the arguments may have been framed better or it would have been easier if there was objection posed or argument made at the time of trial, the end result is those particular claims were not successful. What was successful at the appellate court with regard to the issue of plain error was eventually reversed by the supreme court which determined it was not plain error for Judge Downey to do what he did.
So there’s no prejudice whatsoever regarding any aspect of trial counsel’s conduct or strategy employed with respect to an appeal. For reasons that I will comment further on count two, with regard to any claim in an appeal, it is clear under our law that it must be shown in order for a petitioner to appeal in a petition for a writ of habeas corpus to satisfy the prejudice prong the petitioner must show, quote, “a reasonable probability that but for counsel’s errors,” he would have prevailed on his appeal. Small v. Commissioner of Correction, 286 Conn. 707, 720, cert denied, Small v. Lantz, 2008.
So it’s not whether the issue would have been framed better or posited in a more enhanced fashion, the issue is ultimately would it have prevailed, and here there is insufficient evidence to establish that anything trial counsel did with regard to perfecting the record in any way . . . or didn’t do in any way prejudiced you, sir, Mr. Myers, in your appeal. And for that reason, paragraph 28 is unproven, and for all of those reasons ineffective assistance of trial counsel is unproven.
With regard to the second count, it is claimed that Attorney CT Page 18718 Osedach was ineffective as an appellate attorney.
With regard to Attorney Osedach, the Court notes that Attorney Osedach currently is employed by the Office of the Chief Public Defender in the Appellate Unit, she attended Fairfield University, obtaining a degree in 1991 in finance, among other concentrations. She then graduated from the University of Bridgeport School of Law in 1988. She worked in the Meriden court, the Part B court for five years. She then worked in the Milford court in both the upper and lower court, presumably doing criminal defense work on a full-time basis. At present she’s argued some ten . . . excuse me, thirty appeals over the last ten years.
Here, this Court accredits her testimony that upon accepting the role of being your appellate attorney she obtained the transcript and reviewed the transcript, she reviewed the record of the trial court, along with the exhibits, and she developed a strategy for picking what she termed the best issues for appeal.
The Court accredits her testimony and observation that appellate attorneys are limited by the 35-page requirement which is imposed on them and that it is a question of strategy to ferret out the best issues.
Notably, counsel was successful before the appellate court on the plain error claim involving the absence of trial on the Part B and that issue was taken up by the supreme court. The Court cannot in hindsight hypothecate if other claims were advanced, would those claims have been successful based upon the evidence before the Court in this trial under the decision of Small v. Commissioner of Correction.
This Court accredits Attorney Osedach’s testimony that she reviewed the case, discussed aspects of the appeal with you, Mr. Myers, and developed a strategy.
It is alleged at paragraph 32 that appellate counsel failed to raise all possible issues for appeal. This Court agrees that counsel did not advance all potential issues, nor was she required to do so.
The Court accredits appellate counsel’s testimony, again, within the 35 pages she did cull out what she deemed to be the best issues and the most meritorious, and that was prudent practice indeed. This Court cannot determine any deficiency for Attorney Osedach not raising every potential issue, including any potential further CT Page 18719 cross-examination issue, or any issue having to do with the cross-examination, I think, of Officer Pitts and his . . . or the examination of the officer regarding the testimony regarding customs and habits of alleged drug traffickers.
Here it was argued that counsel at trial should have made an objection to testimony offered by the police officer witness. This Court is mindful that, quote, “The decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency.” Levine v. Manson, 195 Connecticut 636, 648, 1985.
“Further, as a legal matter, police officers can testify from their training and experience about customary practices involved in the commission of crimes.” See State v. Vilastra, 207 Conn. 35, 45, 1988 (drug sales).
So, as the Court held in Manson, quote, “There would have been no merit to any objection.”
Here, appellate counsel Osedach was not required to pursue any claim involving qualifications as an expert with regard to the police officer where the Court accredits Attorney Osedach’s trial testimony here today that trial courts are allowed wide discretion in this type of evidentiary matter. That being the standard of review, this Court cannot second guess Attorney Osedach’s decision not to pursue such a claim on appeal.
With regard to the allegation in paragraph 43, the claim is that appellate counsel failed to adequately research issues for appeal. This Court finds that claim to be unproven regarding the standards set forth in Small.
With regard to paragraph 34 it’s alleged that counsel failed to adequately brief the claims and issues for appeal. That claim is unproven.
Ultimately, the supreme court held in the case of State v. Myers, and where the court noted that the record was bereft of any evidence that any wrong of a constitutional dimension occurred, this Court accredits the testimony of Attorney Osedach that the court simply determined under the factual scenario advanced that there was no violation of constitutional dimension constituting plain error requiring reversal or remanding of the petitioner’s case. There was no shortcoming on the part of the appellate attorney CT Page 18720 in advancing any of the arguments through an analysis cogently made, not surprisingly, by Justice Peter Zarella, a former occupant of this seat in this court, the court determined that there was simply no constitutional right to trial by jury after analysis of the scope of that issue, reversing the decision by the three-judge panel of the appellate court. For that reason, paragraph 34 does not survive here.
There is no evidence upon which this Court can conclude that the acts or omissions of either trial counsel or appellate counsel in any way fell below a range of competency displayed by lawyers with ordinary training and skill in the area of criminal or appellate law, not that any error of constitutional dimension occurred leading this Court to conclude that the process was undermined, and for those reasons, in all respect, the Court is denying the petition for a writ of habeas corpus. Judgment may enter in favor of the respondent.
I am requesting that notice of appeal rights be prepared and given to Mr. Myers via his attorney, Attorney Juniewic.
The record shall reflect the marshal is going to hand momentarily those notice of rights to Attorney Juniewic. The record shall note that at this time.
I am requesting that a transcript of this decision be made and will be signed and be incorporated as a memorandum into the file.
With that, this is concluded.
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