text:
    STATE OF CONNECTICUT v. JOHN S. HANSEN
    (AC 33797)
    DiPentima, C. J., and Gruendel and Sheldon, Js.

      Argued February 21
    officially released July 2, 2013

      David J. Reich, for the appellant (defendant).

      Nancy L. Walker, special deputy assistant state’s attorney, with whom, on the brief, were Matthew Ged-ansky, state’s attorney, and Charles Johnson, assistant state’s attorney, for the appellee (state).
   Opinion

SHELDON, J.

On February 11, 2010, the defendant, John S. Hansen, pleaded guilty to attempt to commit larceny in the third degree, larceny in the sixth degree, identity theft in the third degree, forgery in the second degree, and assault in the third degree. In exchange for those guilty pleas, entered pursuant to a Garvin agreement, the court agreed to sentence the defendant to a total effective sentence of two years and one day of incarceration followed by two and one-half years of special parole, on condition that he appear before the court on his sentencing date, April 29, 2010, and that he not get arrested in the interim. On April 18, 2010, the defendant was arrested and charged with breach of peace and interfering with apeace officer. Thereafter, when the defendant failed to appear in court on his April 29, 2010 sentencing date, he was ordered rearrested and was charged with five counts of failure to appear. When the defendant was finally returned to court for sentencing on the charges to which he had pleaded guilty under the Garvin agreement, the court found that he had breached the conditions of the Garvin agreement, and thus sentenced him to a total effective sentence of four years and nine months of incarceration. This appeal followed.

On appeal, the defendant challenges the constitutionality of the Garvin agreement and claims that the court erred in failing to inquire into a possible conflict of interest between him and his attorney. The defendant failed to preserve his claims, which we set forth in greater detail below, before the trial court and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We review his claims because the record is adequate for review and the claims are of constitutional magnitude. See State v. Reynolds, 126 Conn. App. 291, 298, 11 A.3d 198 (2011). Because, however, we conclude that no constitutional violation exists, we affirm the judgment of the trial court.

I

The defendant first claims that the Garvin agreement violated his due process rights because its terms did not afford him an opportunity to contest any alleged violations of that agreement. The state opposes the defendant’s claim in substance, but also contends that the claim is moot because, since the date of his sentencing, the defendant pleaded guilty to the failure to appear charges, which were based upon the failure to appear in court for his sentencing on April 29, 2010. On the basis of those guilty pleas, the state claims that there

is no controversy as to whether the defendant failed to appear at the April 29, 2010 sentencing proceeding, or that he thereby violated his Garvin agreement. The defendant, however, is not claiming that he did not violate the Garvin agreement. Rather, he is claiming that the Garvin agreement itself was unconstitutional because it did not expressly provide that he would have the opportunity to contest any alleged violation of the agreement. Because the defendant’s challenge is to the Garvin agreement itself, not whether he violated that agreement, his convictions for failure to appear do not render his due process claim moot.

Turning to the substance of the issues on appeal, the defendant first claims that his Garvin agreement violated his constitutional right to due process in that it failed to provide that he would be afforded the opportunity to contest any allegations that he breached either of the conditions of that agreement.

“It is axiomatic that unless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable. ... A plea of guilty is, in effect, a conviction, the equivalent of a guilty verdict by a jury. ... In choosing to plead guilty, the defendant is waiving several constitutional rights, including his privilege against self-incrimination, his right to trial by jury, and his right to confront his accusers.” (Citations omitted; internal quotation marks omitted.) State v. Andrews, 253 Conn. 497, 502-503, 752 A.2d 49 (2000).
“The . . . constitutional essentials for the acceptance of a plea of guilty are included in our rules and . . . provide that the trial court must not accept a guilty plea without first addressing the defendant personally in open court and determining that the defendant fully understands the [plea] and that the plea is made voluntarily .... There is no requirement, however, that the defendant be advised of every possible consequence of such a plea. . . . Although a defendant must be aware of the direct consequences of a plea, the scope of direct consequences is very narrow. ... In Connecticut, the direct consequences of a defendant’s plea include only the mandatory minimum and maximum possible sentences . . . the maximum possible consecutive sentence . . . the possibility of additional punishment imposed because of previous conviction(s) . . . and the fact that the particular offense does not permit a sentence to be suspended. . . . The failure to inform a defendant as to all possible indirect and collateral consequences does not render a plea unintelligent or involuntary in a constitutional sense.” (Citations omitted; internal quotation marks omitted.) Id., 504-506. It is equally well settled that “due process requires that the defendant be given the opportunity to contest the evidence upon which the trial court relies for sentencing purposes . . . .” State v. Stevens, 278 Conn. 1, 12, 895 A.2d 771 (2006).

There is no basis in law, however, for the defendant’s claim that when a defendant enters into a Garvin agreement, the court must explain all of the findings that it would later need to make, and all of the procedures that it would later need to follow, if he were alleged to have violated that agreement. Nor is there any requirement that the court inform the defendant that it will adhere to the constitutional mandates of due process in conducting those proceedings.

The defendant’s claim that the Garvin agreement violated his due process rights, in that it did not provide that he could contest any allegation that he breached that agreement, is also belied by the fact that he had prepared a written statement to read to the court at his ultimate sentencing proceeding, wherein he explained to the court the reason why he had not appeared for sentencing on April 29, 2010. In addressing the court, the defendant attempted to explain his absence on April 29, 2010, by stating that he was at the hospital with an injury and claiming that he had not understood the importance of appearing in court on that date. He then apologized to the court “for the new charges and the failure to appear.” The defendant’s preparation of that statement in advance of his sentencing proceeding demonstrated his anticipation that he would indeed be given the opportunity to explain his earlier actions, and thereby contest the claim that he had breached the Garvin agreement. We thus reject his claim that the Garvin agreement was unconstitutional.

II

The defendant also contends that the trial court deprived him of conflict-free representation by failing to inquire into a possible conflict of interest between himself and his attorney. In so arguing, the defendant contends that the court had an obligation, sua sponte, to explore the possible existence of such a conflict because it knew or reasonably should have known that a conflict existed. We disagree.

We begin our analysis of the defendant’s claim by setting forth the applicable standard of review. “Almost without exception, we have required that a claim of ineffective assistance of counsel must be raised by way of habeas corpus, rather than by direct appeal, because of the need for a full evidentiary record for such [a] claim. ... On the rare occasions that we have addressed an ineffective assistance of counsel claim on direct appeal, we have limited our review to allegations that the defendant’s sixth amendment rights had been jeopardized by the actions of the trial court, rather than by those of his counsel. . . . We have addressed such claims, moreover, only where the record of the trial court’s allegedly improper action was adequate for review or the issue presented was a question of law, not one of fact requiring further evidentiary development. . . . We, therefore, review the defendant’s claim as a question of law and, as with all questions of law, our review is plenary.” (Citations omitted; emphasis omitted; internal quotation marks omitted.) State v. Parrott, 262 Conn. 276, 285-86, 811 A.2d 705 (2003).

“The sixth amendment to the United States constitution as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution, guarantee to a criminal defendant the right to [the] effective assistance of counsel. . . . Where a constitutional right to counsel exists . . . there is a correlative right to representation that is free from conflicts of interest.” (Internal quotation marks omitted.) State v. Cator, 256 Conn. 785, 793, 781 A.2d 285 (2001). “There are two circumstances under which a trial court has a duty to inquire with respect to a conflict of interest: (1) when there has been a timely conflict objection at trial ... or (2) when the trial court knows or reasonably should know that a particular conflict exists . . . .” (Internal quotation marks omitted.) Id., 793-94; State v. Thompson, 118 Conn. App. 140, 146-47, 983 A.2d 20 (2009), cert. denied, 294 Conn. 932, 986 A.2d 1057 (2010).

The defendant claims that the court should have known of a conflict because “[t]rial counsel was clearly involved in events that led to his . . . failure to appear.” The defendant stated in his aforementioned letter to the court that his attorney had not fully explained to him the potential consequences of failing to appear at the April 29, 2010 sentencing hearing when they spoke on that date. The defendant contends that, on the basis of counsel’s inadequate explanation of such contingencies, counsel was ineffective, and thus that counsel should have testified as to the nature of his explanation at the hearing to determine if he had violated the Garvin agreement by failing to appear. Although the defendant’s claim is somewhat convoluted, we need not attempt to parse its meaning. The simple fact is that the defendant was clearly informed by the court of the requirement that he appear at the April 29, 2010 proceeding at the time that he entered his guilty pleas. The court canvassed the defendant fully to confirm that the defendant understood that requirement and the potential consequences of his failure to comply with it. Because the defendant had been apprised of the possible consequences of his failure to appear before the court on April 29, 2010, there is no factual basis upon which the court should have suspected a potential conflict grounded in his claim that his attorney failed to advise him properly of those consequences. The defendant’s claim thus fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       “A Garvin agreement is a conditional plea agreement that has two possible binding outcomes, one that results from the defendant’s compliance with the conditions of the plea agreement and one that is triggered by his violation of a condition of the agreement. See State v. Garvin, [242 Conn. 296, 300-302, 699 A.2d 921 (1997)].” (Internal quotation marks omitted.) State v. Petaway, 107 Conn. App. 730, 732 n.2, 946 A.2d 906, cert. denied, 289 Conn. 926, 958 A.2d 162 (2008).

       The defendant’s claim that the Garvin agreement was unconstitutional would seem to suggest that he is seeking to withdraw that plea, but he is not. Rather, he is asking this court to vacate his sentence and remand the case to the trial court with direction to impose the sentence agreed to in the original plea agreement.

       In finding that the defendant breached the Garvin agreement, the court rejected his excuse for not appearing at the April 29, 2010 proceeding. We note that the defendant did not claim before the trial court, and does not claim on appeal, that his failure to appear was based upon circumstances beyond his control.

       The defendant claims that: “Trial counsel had a potential conflict of interest because he could not effectively challenge whether or not his client was fully informed of the failure to appear at the sentencing hearing without asserting that he was ineffective in the way he advised his client.”


source: Caselaw Access Project

author: SHELDON, J.

license: Public Domain

text:
    PRISCILLA C. DICKMAN v. COMMISSIONER OF CORRECTION
    (AC 34574)
    Beach, Sheldon and Pellegrino, Js.
    Argued April 16
    officially released July 2, 2013

      Norman A. Pattis, for the appellant (petitioner).

      Rocco A. Chiarenza, assistant state’s attorney, with whom, on the brief, were Matthew C. Gedansky, state’s attorney, and Marcia A. Pillsbury, deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

SHELDON, J.

In this case, the petitioner, Priscilla Dickman, appeals from the judgment of the habeas court denying her petition for a writ of habeas corpus challenging her conviction for forgery in the third degree on the ground of actual innocence. Before the habeas court, the petitioner based her claim of actual innocence upon allegations and proof that the state did not learn of her commission of forgery in the third degree, and thus could not have convicted her of that offense, without conducting an unwarranted, uncon-sented to search of her computer files at the University of Connecticut Health Center (health center), in violation of the state’s own procedures for accessing such files, in violation of her right against unreasonable searches and seizures under the fourth and fourteenth amendments to the United States constitution. She asserts that a claim of actual innocence may properly be based upon such allegations and proof because she neither knew of nor reasonably could have discovered the challenged search before the conclusion of her criminal trial and the subsequent appeal from the resulting conviction.

The respondent, the Commissioner of Correction, opposed the petitioner’s claim on two basic grounds. First, he argued that the petitioner could not establish her actual innocence based upon proof that the evidence against her was acquired by unconstitutional means because such proof fails to demonstrate that she did not, in fact, commit the underlying criminal offense. Second, he claims that even if a claim of actual innocence could properly be based upon proof of a fourth and fourteenth amendment violation, the petitioner has not established such a violation here because she had not proved that she has an actual and justifiable expectation of privacy in the files she stored as a state employee on her work computer.

At the end of a four day trial on the petitioner’s claim, after receiving briefs and hearing arguments from counsel, the habeas court issued a memorandum of decision denying the petition on two grounds. First, it agreed with the respondent that the petitioner had not established that the state’s search of files she had stored on her work computer violated her fourth and fourteenth amendment right against unreasonable searches and seizures because she could not prove that she had an actual and justifiable expectation of privacy in the contents of her work computer. Second, the court concluded that the petitioner had failed to establish that she was actually innocent of the crime of forgery in the third degree because, in fact, she had admitted committing that offense both in the habeas proceeding and at her criminal trial, and her unconstitutional search and seizure claim did not cast doubt on these admissions. The habeas court granted the petitioner’s petition for certification to appeal to this court.

On appeal, the petitioner claims that the habeas court erred both in its ruling on the merits of the search and seizure claim and in its conclusion that such a claim cannot serve as a viable basis for a claim of actual innocence. The respondent opposes both aspects of the petitioner’s claim, insisting principally, as he did at trial, that a claim of actual innocence cannot be predicated upon proof of a fourth amendment violation. The respondent thus urges this court to affirm the habeas court’s rejection of the petitioner’s actual innocence claim without reaching or deciding the merits of her constitutional challenge to the search other work computer. For the following reasons, we agree with the respondent, and thus affirm the judgment of the habeas court because the petitioner’s challenge to the search of her work computer cannot establish her claim of actual innocence as a matter of law.

In reviewing the habeas court’s denial of a petition for a writ of habeas corpus on the ground of legal error in its analysis of the issues presented to it, our review is plenary. Gould v. Commissioner of Correction, 301 Conn. 544, 557, 22 A.3d 1196 (2011). In this case, our plenary review of the habeas court’s legal analysis of the cognizability of the petitioner’s actual innocence claim must be conducted against the background of the following factual and procedural history.

The petitioner was arrested and brought to trial before a jury on a substitute information charging her with two counts of forgery in the third degree and one count of attempt to commit larceny in the third degree. She was convicted of one count of forgery in the third degree and a sentence was imposed.

The facts underlying the petitioner’s conviction, as summarized by the habeas court, were as follows. “[The] petitioner’s husband was appointed conservator of the estate and person of his brother. His brother was injured when struck by a motor vehicle in California. As a consequence of the injury, a claim was filed with the Allstate Insurance Company [Allstate], the insurer of the driver. On June 28, 2004, [the] petitioner contacted Allstate concerning the claim. Before discussing the matter with [the] petitioner, Allstate required proof of her authority to speak on behalf of her brother-in-law. [The] petitioner had no such authority. Such authority could consist of a document from the Probate Court. On July 8, 2004, [the] petitioner was, again, unable to speak to [a] representative of Allstate because of a lack [of] authority to do so. On the same day, [the] petitioner sent to Allstate a facsimile of a probate form which she altered by adding her name to that of her husband in the box entitled ‘fiduciary.’ She also altered the box indicating the position of trust from conservator to conservators. She also sent a letter of authorization to Allstate which contained false information.

“[The petitioner’s] conviction was upheld on appeal. State v. Dickman, [119 Conn. App. 581, 989 A.2d 613, cert. denied, 295 Conn. 923, 991 A.2d 569 (2010)].

“There is little doubt that [the] petitioner’s conviction was based upon the alteration of the probate document. At the trial, [the] petitioner’s attorney conceded that [the] petitioner had altered the document. The elements of forgery in the third degree, [General Statutes] § 53a-140, as applicable here are: ‘A person is guilty of forgery in the third degree when, with intent to . . . deceive . . . another he falsely makes, completes or alters a written instrument. . . .’

“At the habeas trial, on cross-examination, [the] petitioner admitted altering the [probate] document.

“After her conviction, [the petitioner] filed a freedom of information request for documents from the [health center]. From these documents, [the] petitioner discovered certain information which led her to pursue the present claim of actual innocence. This information may be briefly summarized as follows.

“In 2005, [the] petitioner was an employee of the [health center]. She was at the time suspected by her supervisors of workers’ compensation fraud and using her work computer for the conduct of private business. As a result of the suspicions, numerous documents were retrieved from her computer files at the health center. These documents were delivered to the chief state’s attorney’s office. An investigator in the chief state’s attorney’s office responsible for workers’ compensation fraud reviewed the documents. His review of the documents, after contact with Allstate, resulted in a discovery of the falsified probate documents and the subsequent arrest and conviction of [the] petitioner for . . . forgery in the third degree.”

After learning for the first time that the state had discovered her alteration of documents by examining the files in her work computer, the petitioner commenced this action challenging her forgery conviction on two grounds: actual innocence and ineffective assistance of counsel. The case was prosecuted to judgment only on her claim of actual innocence, for she withdrew her ineffective assistance claim after refusing to waive her attorney client privilege when the respondent attempted to present her attorney’s testimony at trial.

With respect to her claim of actual innocence, the petitioner claimed, to reiterate, that in retrieving the documents from her work computer, the state violated her fourth and fourteenth amendment rights by breaching her reasonable expectation of privacy in her computer files, and that but for the breach, she would never have been prosecuted for forgery in the third degree. The petitioner supported that claim by adducing evidence as to the existence of a published health center policy that stated that information stored on computers is afforded the same level of confidentiality as paper documents stored in conventional files. The policy further stated that the content of user files would not be disclosed without the user’s permission except when required by federal or state law, or when required by a criminal investigation. When no criminal investigation was involved, the policy provided that access to password protected files could be granted for mission related information and where there was a credible allegation or actual evidence of a violation of health center or university policy. A procedure was established for obtaining access to the electronic fields under these circumstances. The procedure required that the investigation be initiated by a supervisor using an application form. The policy required that all such application forms should be submitted to the computer security assurance team (team) for consideration. The team consisted of voting members from various agencies within the health center. The report of the team would then be submitted to the health center’s executive vice president for a final decision.

The habeas court determined from the evidence presented that the search and seizure of the petitioner’s work computer was not conducted in strict conformity with the requirements of the health center’s policy, because although it was approved by the executive vice president upon a request by the vice president of human resources, based upon evidence that the petitioner was involved in workers’ compensation fraud, it was never presented to or approved by the team. Even so, the habeas court concluded that the petitioner had no reasonable expectation of privacy in the contents of her work computer in the circumstances here presented, because the policy clearly informed her and all health center employees that their files were subject to retrieval and examination in the event of allegations that could give rise to a criminal investigation.

Upon disposing of the petitioner’s search and seizure claim on the merits, the habeas court went on to observe that even if such a claim were established, it would not entitle the petitioner to release on a writ of habeas corpus on the ground of actual innocence. “Actual innocence,” it correctly observed, “is demonstrated by affirmative proof that the petitioner did not commit the crime. Bousley v. United States, [523 U.S. 614, 623, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998)]. Under Miller v. Commissioner of Correction, [242 Conn. 745, 791-92, 700 A.2d 1108 (1997)], [the] petitioner must prove that she is actually innocent of the crime of forgery in the [third] degree. ... In this case, [the] petitioner does not dispute the fact that she committed the acts which constitute the elements of the crime for which she was convicted. Her claim is that the crime was discovered by improper means.” Under these circumstances, which did not undermine or contradict the respondent’s claim that she was factually guilty as charged, the habeas court concluded that a writ of habeas corpus could not be issued on the ground of actual innocence.

Although the habeas court engaged in a substantive analysis of the merits of the petitioner’s search and seizure claim before observing that no such claim can serve as a basis for proving actual innocence, we agree with the respondent that no such analysis is necessary for the disposition of this appeal. Accordingly, we will confine our discussion to the legal requirements of an actual innocence claim, which the petitioner has failed to satisfy on the record before us.

As the respondent has correctly argued in his appellate brief, our Supreme Court has “unequivocally and unmistakably set forth a two part test for obtaining habeas relief on the basis of a freestanding claim of actual innocence .... First, taking into account both the evidence produced in the original criminal trial and the evidence produced in the habeas hearing, the petitioner must persuade the habeas court by clear and convincing evidence, as that standard is properly understood and applied in the context of such a claim, that the petitioner is actually innocent of the crime of which [s]he stands convicted. Second, the petitioner must establish that, after considering all of that evidence and the inferences drawn therefrom, as the habeas court did, no reasonable fact finder would find the petitioner guilty.” (Internal quotation marks omitted.) Gould v. Commissioner of Correction, supra, 301 Conn. 557-58. The clear and convincing burden is “extraordinarily high” and requires the petitioner to make a “truly persuasive [demonstration] of actual innocence . . . one in which the petitioner must unquestionably establish [her] innocence.” (Citation omitted; internal quotation marks omitted.) Id., 560.

“Actual innocence, also referred to as factual innocence ... is different than legal innocence. [Unlike legal innocence] [a]ctual innocence is not demonstrated merely by showing that there was insufficient evidence to prove guilt beyond a reasonable doubt .... Rather, actual innocence is demonstrated by affirmative proof that the petitioner did not commit the crime.” (Citations omitted; emphasis added.) Id., 560-61. “Affirmative proof of actual innocence is that which might tend to establish that the petitioner could not have committed the crime even though it is unknown who committed the crime, that a third party committed the crime or that no crime actually occurred.” (Emphasis in original.) Id., 563. “To disturb a long settled and properly obtained judgment of conviction, and thus put the state to the task of reproving its case many years later, the [petitioner] must affirmatively demonstrate that [he or she is] in fact innocent.” (Emphasis in original.) Id., 567.

In light of that standard, the respondent rightly insists that we examine the evidence before the trial court and the habeas court to determine if the petitioner has presented any proof that she is factually innocent, and, if so, whether such proof establishes her factual innocence by clear and convincing evidence. Here, the petitioner not only presented no such evidence in either proceeding, but actually admitted in both proceedings that she engaged in the conduct upon which her conviction was based. Because she does not claim that she did not, in fact, commit the crime for which was convicted, her contention that the evidence upon which her conviction was based was obtained in violation of her constitutional rights is of no moment and thus cannot, as a matter of law, support a claim of actual innocence.

The judgment is affirmed.

In this opinion the other judges concurred.


text:
    ANTHONY COWARD v. COMMISSIONER OF CORRECTION
    (AC 33937)
    DiPentima, C. J., and Sheldon and Schailer, Js.

      Argued March 18
    officially released July 2, 2013

      William A. Adsit, assigned counsel, for the appellant (petitioner).

      Rita M. Shair, senior assistant state’s attorney, with whom were Matthew C. Gedansky, state’s attorney, and, on the brief, Erika L. Brookman, assistant state’s attorney, and Angela R. Macchiarulo, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

SHELDON, J.

The petitioner, Anthony Coward, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his second amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion in denying his petition for certification to appeal and improperly denied his claims of ineffective assistance of trial counsel. We dismiss the appeal.

The petitioner’s underlying conviction was the subject of a direct appeal to our Supreme Court. State v. Coward, 292 Conn. 296, 972 A.2d 691 (2009). In affirming the petitioner’s conviction, the court concluded that the jury reasonably could have found the following relevant facts. “On the evening of December 3, 2002, the [petitioner], Keith Taylor and Maurice Lawrence met in New Haven to discuss a plan to rob Wahied Jerjies, a drug dealer with whom Taylor had had prior dealings. Taylor, who owed an outstanding drug debt to Jerjies, was aware that Jerjies regularly kept large sums of money in his apartment, and suggested that the three men drive to that apartment to rob him.

“After discussing the idea in New Haven, the three men subsequently drove to the Mill Pond Village housing complex in East Windsor, where Jerjies lived with his wife, Sara Sedor, and Sedor’s daughter. Lawrence, who previously had lived in that same complex, directed the other men to his unoccupied former apartment, where they further discussed their plan to rob Jerjies. During those discussions, Taylor left to retrieve a shotgun from his girlfriend’s apartment, which also was located in the Mill Pond Village complex. When he returned, Taylor described the plan for the robbery to the others, explaining that Lawrence would serve as a lookout, while Taylor and the [petitioner] would go inside Jerjies’ apartment and ‘use force’ to take what they wanted. Taylor directed the [petitioner] to bring a baseball bat that Lawrence had produced from his apartment, while Taylor would use the shotgun that he had obtained. Taylor indicated to the others that the shotgun had only one shot, that he was going to use it if necessary and that people could get hurt if Jerjies or Sedor resisted.

“Thereafter, the three men went to Jerjies’ apartment, where they were met at the door by a woman who indicated that Jerjies was not home. They decided to wait for Jerjies nearby and, after Jerjies returned, Taylor and the [petitioner] went to the front door of Jerjies’ apartment while Lawrence hid by bushes located at the side of the apartment. When Jerjies answered the door, Taylor pointed the shotgun at Jerjies’ chest and forced his way into the apartment. After following Taylor inside, the [petitioner] encountered Sedor in the living room, at which point he began swinging his baseball bat at her in order to keep her away from him.

“Subsequently, Taylor directed Lawrence to search the apartment for valuables, and also directed the [petitioner] to grab Jerjies’ Sony PlayStation II video game system. After Lawrence found a bag of marijuana, the [petitioner] and Lawrence ran from the apartment through a rear screen door and, as they fled back to Taylor’s car, they heard a gunshot ring out from inside the apartment. Lawrence and the [petitioner] returned to Taylor’s car and, approximately twenty minutes later, Taylor returned to the car with a ‘splatter of blood on his clothes.’ Taylor indicated that he had dumped the shotgun in a nearby sewer, and that he had left the baseball bat in the apartment. Thereafter, the three men drove back to New Haven to drop off the [petitioner], who left the car in possession of the Sony PlayStation II, some marijuana and $200 in cash from the robbery.

“After receiving a telephone call from one of Jerjies’ neighbors the next day, Jeffrey Capen, an East Windsor police officer, responded to the crime scene and found both Jerjies and Sedor dead in the apartment. Investigators discovered the baseball bat in the apartment, but subsequent testing did not reveal any trace of human blood on the bat. Investigators also discovered various broken pieces of the shotgun near Sedor’s body, including two wooden pieces of the shotgun fore-ends, a metal spring and a U-shaped piece of metal that was entangled in Sedor’s hair. Investigators also subsequently located the wooden stock and barrel of the shotgun, which bore traces of human blood, in the sewer in which Taylor had discarded it. Edward Jachimowicz, a state firearms examiner, testified that it would have taken ‘a tremendous amount of force’ to break the shotgun apart in such a manner. Autopsies subsequently revealed that Jerjies had died from a shotgun wound to his neck that ‘obliterated . . . [it] from its normal anatomic function,’ and that Sedor had succumbed to extensive blunt force trauma to her head.

“Taylor and Lawrence subsequently were arrested in connection with the murders, and the [petitioner] surrendered voluntarily. The state charged the [petitioner] with capital felony in violation of General Statutes §§ 53a-54b (7) and 53a-8 (a), two counts of murder in violation of § 53a-54a (a), two counts of felony murder in violation of § 53a-54c, robbery in the first degree in violation of § 53a-134 (a) (2), burglary in the first degree in violation of § 53a-101 (a) (1), conspiracy to commit robbery in the first degree in violation of § § 53a-48 (a) and 53a-134 (a) (2) and conspiracy to commit burglary in the first degree in violation of §§ 53a-48 (a) and 53a-101 (a) (1). The [petitioner] was tried before a jury, which returned a verdict convicting him of all charges except for the capital felony count and the murder count in connection with Sedor’s death. The [petitioner] was, however, convicted of the uncharged lesser included offense of manslaughter in the first degree in connection with Sedor’s death. The trial court sentenced the [petitioner] to a total effective sentence of sixty years imprisonment.” State v. Coward, supra, 292 Conn. 299-302.

On December 28, 2010, the petitioner filed the operative second amended habeas corpus petition alleging that his trial counsel, attorneys Margaret Levy and John Walkley, provided ineffective assistance because, inter alia, they (1) “[advised] the petitioner against testifying in his own defense” and (2) “failed to investigate and interview several witnesses who could have provided exculpatory evidence at trial.” Following the habeas trial, the court denied the petition for a writ of habeas corpus and subsequently denied the petitioner’s petition for certification to appeal. This appeal followed. Additional facts and procedural history will be set forth as necessary.

As an initial matter, we set forth the standard of review relevant to our resolution of this appeal. “Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason . . . [the] court could resolve the issues [in a different manner] . . . or . . . the questions are adequate to deserve encouragement to proceed further. . . . The required determination may be made on the basis of the record before the habeas court and applicable legal principles. . . .

“In determining whether the habeas court abused its discretion in denying the petitioner’s request for certification, we necessarily must consider the merits of the petitioner’s underlying claims to determine whether the habeas court reasonably determined that the petitioner’s appeal was frivolous. In other words, we review the petitioner’s substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria . . . adopted by this court for determining the propriety of the habeas court’s denial of the petition for certification. Absent such a showing by the petitioner, the judgment of the habeas court must be affirmed.” (Internal quotation marks omitted.) Rosado v. Commissioner of Correction, 129 Conn. App. 368, 371-72, 20 A.3d 85, cert. denied, 302 Conn. 916, 27 A.3d 368 (2011).

“We examine the petitioner’s underlying claim[s] of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . .

“In Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s assistance was so defective as to require reversal of [the] conviction .... That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. . . . Because both prongs . . . must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong.” (Citation omitted; internal quotation marks omitted.) Vazquez v. Commissioner of Correction, 128 Conn. App. 425, 429-30, 17 A.3d 1089, cert. denied, 301 Conn. 926, 22 A.3d 1277 (2011).

“To satisfy the performance prong [of the Strickland test] the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.” (Internal quotation marks omitted.) Boyd v. Commissioner of Correction, 130 Conn. App. 291, 294-95, 21 A.3d 969, cert. denied, 302 Conn. 926, 28 A.3d 337 (2011). “[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” (Internal quotation marks omitted.) Orellana v. Commissioner of Correction, 135 Conn. App. 90, 98, 41 A.3d 1088, cert. denied, 305 Conn. 913, 45 A.3d 97 (2012).

“With respect to the prejudice component of the Strickland test, the petitioner must demonstrate that counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is rehable. ... It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings. . . . Rather, [t]he [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. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Internal quotation marks omitted.) Vazquez v. Commissioner of Correction, supra, 128 Conn. App. 430.

Accordingly, in order to determine whether the habeas corut abused its discretion in denying the petition for certification to appeal, we must consider the merits of the petitioner’s underlying claim that trial counsel provided ineffective assistance. With the foregoing principles in mind, we now address the petitioner’s claims in turn.

I

The petitioner first claims that Levy and Walkley provided ineffective assistance because they improperly advised him not to testify and failed to ensure that he understood the implications of not testifying. Specifically, the petitioner asserts that, because he “evinced a desire to testify by implication,” it was incumbent upon Levy and Walkley to inform him that they did not intend to challenge his statement to the police through the presentation of evidence. Accordingly, the petitioner argues, because “it is clear [the petitioner’s] testimony was the only way his purported statement could be challenged as he wanted . . . [Levy and Walkley] were deficient for not advising him he would need to testify to challenge his purported statement.” We disagree.

The record reveals the following additional facts, which are relevant to the resolution of this claim. During his criminal trial, when the petitioner was canvassed by the trial court concerning his right to testify, he clearly indicated his understanding that he had such a right. During the canvass, the trial court explained that he could challenge the veracity of his statement to the police by testifying but warned the petitioner that, “[i]f you do testify, then you’ll be giving up your [f]ifth [a]mendment right, and you’ll be treated like any other witness, subject to cross-examination. You can’t say 1 don’t want to answer that question, I take the [f]ifth [a]mendment,’ because you’ll be giving up that right if you do choose to testify.” The petitioner acknowledged that he understood that the decision as to whether to testify was his own and that he had decided not to testify.

At the habeas trial, the court heard testimony from the petitioner and Levy regarding, inter alia, the issues involving the petitioner’s decision not to testify. The petitioner testified that Levy and Walkley had discussed with him the idea of testifying at his criminal trial and advised against it. He testified that he had informed them of his desire to testify to inform the jury of his “side of the story.” The petitioner testified, however, that he had understood that ultimately it had been his right to decide whether to invoke his right to testify on his own behalf. Levy testified that the decision not to call the petitioner as a witness was a strategic decision made to prevent the state from having an opportunity to cross-examine him regarding the inculpatory statement he had made to the police.

In its memorandum of decision denying the petitioner’s habeas corpus petition, the court stated: “Given the particularly damaging nature of [the petitioner’s statement to the police] and the testimony it could elicit, [the decision not to call the petitioner as a witness] was eminently reasonable. Absent any credible evidence indicating that [Levy and Walkley] failed to inform the petitioner of his right to testify or that the decision not to place him on the stand was unreasonable in light of the circumstances existing at the time, this court cannot conclude that [their] performance was deficient.”

“It is axiomatic that [i]t is the right of every criminal defendant to testify on his own behalf . . . and to make that decision after full consultation with trial counsel. . . . [Although the due process clause of the [f]ifth [a]mendment may be understood to grant the accused the right to testify, the if and when of whether the accused will testify is primarily a matter of trial strategy to be decided between the defendant and his attorney.” (Citation omitted; internal quotation marks omitted.) Henderson v. Commissioner of Correction, 129 Conn. App. 188, 195-96, 19 A.3d 705, cert. denied, 303 Conn. 901, 31 A.3d 1117 (2011).

The petitioner claims that it was objectively unreasonable for Levy and Walkley not to call him as a witness to challenge his statement to the police. He claims that that failure was prejudicial to him because his testimony could have cast doubt on Lawrence’s inculpatory testimony. Specifically, he argues that he would have testified that “he went along to meet Taylor’s son and had no idea of Taylor and Lawrence’s plan until Taylor pulled out the shotgun, at which time the petitioner indicated his noninvolvement by taking nothing and running out of the apartment.” The petitioner further claims that he would have testified that Lawrence, rather than the petitioner, wielded the baseball bat and the petitioner never took Jerjies’ Sony PlayStation II video game system. The petitioner claims that such testimony would have changed the outcome of the trial.

On the basis of our review of the record, we cannot conclude that the habeas court erred in determining that Levy and Walkley’s representation fell within the range of reasonable professional assistance. The petitioner failed to present any credible evidence from which the habeas court could have found that their advice was so deficient as to have left the petitioner to make a wholly uninformed decision as to whether to testify. The petitioner was canvassed by the trial court about his right to testify. He was informed that the state would have been permitted to use his statement to the police for impeachment purposes. After explaining such risks, the trial court asked the petitioner three times whether he wanted to testify and the petitioner stated three times that he did not want to testify.

The habeas court properly based its ruling on the petitioner’s failure to satisfy his burden of overcoming the strong presumption that Levy and Walkley provided effective assistance in this matter. The petitioner’s claims are not persuasive because they are directed at Levy and Walkley’s trial strategy. “[J]udicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsels assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... 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. . . .

“ [T]here is a strong presumption that the trial strategy employed by a criminal defendant’s counsel is reasonable and is a result of the exercise of professional judgment .... It is well established that [a] reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance and that a tactic that appears ineffective in hindsight may have been sound trial strategy at the time.” (Citations omitted; internal quotation marks omitted.) Boyd v. Commissioner of Correction, supra, 130 Conn. App. 297-98.

Contrary to the petitioner’s arguments, Levy and Wai-kley did not provide ineffective assistance simply because they failed to call the petitioner as a witness. At the criminal trial, they unambiguously attempted to demonstrate, through cross-examination of the state’s witnesses, that the petitioner had not known about or agreed to the robbery plan prior to the incident in order to negate the state’s theory of liability on charges of accessory to commit murder. Waikley conducted a thorough cross-examination of Lawrence, during which he probed the petitioner’s involvement in the planning and execution of the robbery. Levy’s testimony at the habeas hearing reflects that Levy believed that this was sound trial strategy; she explained that she and Waikley believed that it was better to raise arguments related to the petitioner’s intent through cross-examination of the state’s witnesses rather than through the testimony of the petitioner, which would have given the state the opportunity to elicit additional incriminating information. The habeas court, in its thorough evaluation of the evidence, reasonably found that Levy and Walkley’s decision to advise the petitioner not to testify constituted reasonable professional assistance. Our review of the issues raised in connection with this claim leads us to conclude that the court did not abuse its discretion in denying the petition for certification to appeal with regard to this claim.

II

The petitioner’s second claim is that Levy and Wai-kley provided ineffective assistance because they failed to investigate Taylor as a potential exculpatory witness. The petitioner claims that such failure prevented them from presenting to the jury Taylor’s testimony that the petitioner was present during the incident but that he was not involved in either the robbery or the deaths of the victims. We disagree.

In rejecting the petitioner’s ineffective assistance claim against Levy and Walkley regarding the investigation of Taylor as an exculpatory witness, the habeas court specifically credited Levy’s testimony and found that “[t]he petitioner has submitted no evidence demonstrating that . . . his attorney’s decision not to pursue Taylor as a possible witness was, in light of this information, unreasonable.” Levy testified that “ [she and Wal-kley] were afraid . . . Taylor, based on his statement to the police, would be the most devastating of witnesses, if he were brought [to testify].” Levy testified that “quite early on [she and Walkley] had spoken with [one of Taylor’s former trial attorneys] about the possibility of interviewing . . . Taylor and [the attorney] refused that opportunity.”

The habeas court further found that “although Taylor presented testimony at the habeas corpus proceeding that completely contradicts his prior statement to the police about the petitioner’s involvement, the court finds Taylor’s testimony totally lacking in credibility.” In Taylor’s statement to the police, he implicated the petitioner in the charged crimes, stating that the petitioner had actively participated in the robbery and killed the victims. At the habeas hearing, however, Taylor presented testimony that completely contradicted his prior statement to the police. Taylor testified that he, rather than the petitioner, killed the victims and that the petitioner did not know about the planned robbery prior to the incident. Taylor testified that the petitioner “wasn’t involved in [the plan to rob the victims]. He wasn’t supposed to—this wasn’t something that he should be involved in at all.”

“As an appellate court, we do not reevaluate the credibility of testimony .... The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. ... In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous .... This court does not retry the case or evaluate the credibility of witnesses. Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.” (Citation omitted; internal quotation marks omitted.) Corbett v. Commissioner of Correction, 133 Conn. App. 310, 316-17, 34 A.3d 1046 (2012).

The petitioner has provided nothing to overcome the presumption that Levy and Walkley’s tactical decision not to pursue Taylor as a witness was anything other than sound trial strategy. See Orellana v. Commissioner of Correction, supra, 136 Conn. App. 98. Indeed, Taylor’s statement to the police bolsters Levy’s testimony that she and Walkley believed that “[t]here was absolutely no reason for us to think that . . . Taylor would have been helpful to us or to [the petitioner] at trial.” On the basis of the testimony and evidence presented at the habeas trial, we conclude that the habeas court reasonably could have found that Levy and Walkley were not ineffective in their investigation of Taylor as an exculpatory witness. Accordingly, we agree with the habeas court that the petitioner failed to demonstrate that their performance was deficient and further conclude that the petitioner’s claim fails under the first prong of Strickland.

On the basis of the foregoing, this court concludes that the petitioner has not demonstrated that any issue raised with regard to the court’s denial of his petition for a writ of habeas corpus is debatable among jurists of reason, that a court could resolve any such issue in a different maimer or that any question raised deserves encouragement to proceed further. Having failed to satisfy any of these criteria, the petitioner cannot demonstrate that the court abused its discretion in denying the petition for certification to appeal. See Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994).

The appeal is dismissed.

In this opinion the other judges concurred.

       “The [petitioner] disputed certain aspects of this version of events at trial through the submission of a written declaration given to the police. In that declaration, the [petitioner] stated that, although Taylor had mentioned the possibility of stealing a car that night, the [petitioner] was not aware from whom the car would be stolen or how it would be stolen. The [petitioner] further stated that, during the time in which the three men were waiting in Lawrence’s apartment for Jerjies to return, they did not discuss a plan to rob Jerjies, but simply engaged in general conversation. The [petitioner] stated that Taylor and Lawrence had left in the middle of that conversation for about twenty minutes and that the [petitioner] did not know where they went or what they were doing, but that he was aware that Taylor’s girlfriend and child lived in that same housing complex. When Taylor and Lawrence returned, the [petitioner] stated that the three of them went to Jerjies’ apartment, where they were let in voluntarily. According to the [petitioner], once inside the apartment, Taylor pulled out a concealed shotgun from his jacket and began yelling and asking Jerjies where the maryuana was. The [petitioner] also stated that Lawrence—and not the [petitioner]—produced the aluminum baseball bat from inside his jacket, and that that was the first time that the [petitioner] became aware of the existence of either weapon. The [petitioner] further averred that Taylor took the bat from Lawrence and hit Sedor over the head with it.” State v. Coward, supra, 292 Conn. 301 n.7.

       The petitioner also alleged that his trial counsel provided ineffective assistance at his criminal trial because they “failed to call alibi witnesses.” On appeal, however, the petitioner does not challenge the habeas court’s denial of this claim.

       Despite alleging in his habeas corpus petition that his trial counsel were ineffective for failing to investigate “several witnesses,” on appeal, as at the habeas trial, the petitioner limits his second claim to trial counsels’ failure to investigate Taylor as a potential exculpatory witness.


author: ROBINSON, J.

text:
    STATE OF CONNECTICUT v. WILLIAM C. PATTERSON
    (AC 34124)
    Robinson, Alvord and Peters, Js.

      Argued March 12
    officially released July 2, 2013

      Heather Golias, assigned counsel, for the appellant (defendant).

      Sarah Hanna, assistant state’s attorney, with whom, on the brief, were Patricia M. Froehlich, state’s attorney, and Matthew Crockett, assistant state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, William C. Patterson, appeals from the judgment of the trial court revoking his probation and sentencing him to five years of incarceration. On appeal, the defendant claims that the trial court: (1) violated his due process rights when it relied on a proffer during the dispositional phase of his probation revocation hearing; (2) abused its discretion when it relied on clearly erroneous findings of fact; and (3) violated his right to allocution pursuant to Practice Book § 43-10. We affirm the judgment of the trial court.

The court found the following facts. On November 6, 2007, the defendant was sentenced to five years of incarceration, execution suspended, and five years of probation for his conviction of the charges of possession of narcotics and risk of injury to a child. On April 7, 2009, Roberto Rosado of the Willimantic police department discovered crack cocaine in excess of one ounce in the groin area of the defendant after a motor vehicle stop. The defendant’s possession of the narcotic substance was a violation of the first standard condition of his probation—that he not violate any criminal law of the United States or any other state—as well as one of his special conditions of probation, which stated that the defendant not use or possess any illegal substances.

On the basis of these facts, the court concluded that the defendant had violated the terms of his probation. It subsequently opened the November 6,2007judgment, revoked the defendant’s probation and sentenced the defendant to five years of incarceration. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court’s revocation of his probation on the basis of an improperly admitted, unreliable proffer by the state was a violation of his due process rights under the fourteenth amendment to the United States constitution because the information did not have the minimal indicia of reliability. Specifically, the defendant maintains that the court improperly considered the state’s proffer because a proffer is not evidence and therefore is not subject to cross-examination, no witnesses testified about the pending charges and the affidavit in support of the arrest warrant was not admitted into evidence. Because the defendant did not properly preserve this claim and did not seek review pursuant to Golding or the plain error doctrine, we decline to review this claim.

The following procedural history is necessary to our determination that the defendant failed to raise this claim in the trial court. After the court found that the defendant had violated his probation, it immediately began the dispositional phase of the defendant’s probation revocation hearing. After making an initial determination that continued probation would not be beneficial, the court asked to hear about the defendant’s pending cases, remarking that it thought it was “entitled to consider those in fashioning the appropriate sentence in the instant case.” Defense counsel immediately objected, arguing that they were not relevant because they occurred prior to the defendant’s arrest for the violation of probation. The court countered that those pending charges would be “even more relevant than anything that occurred post the arrest for violation of probation because it shows that he . . . was not a good candidate and was not complying with the conditions of probation even earlier than on April 7 [2009].” Defense counsel responded that the defendant was still presumed innocent of those charges and that the agents of the Drug Enforcement Agency who had provided the Willimantic police department with information regarding the April, 2009 offense did not testify.

The state indicated that there were five pending cases based on the sale of narcotics or conspiracy to sell narcotics. It also gave a brief proffer of the factual predicate for the charges. After hearing the state’s proffer, the court reaffirmed its revocation. It stated: “Having considered the evidence the court heard this morning—as well as for the reasons that the court has previously stated—the court does find that the beneficial purposes of probation are not being served; and the court, in light of the fact that this was an ongoing pattern of activity apparently and the defendant was found in possession of a large quantity of narcotics, he was ... on probation for possession of narcotics, the court imposes the following sentence: On the conviction of violation of probation, the court [opens] the judgment of November 6 [2007], revokes the defendant’s probation and puts the full sentence into execution.”

At the hearing, the defendant objected to the consideration of the pending charges, but he did so on the grounds of relevance and presumption of innocence. He did not raise a due process argument to the court, nor did he indicate that there were potential issues with due process, such as the inability of the defendant to cross-examine a witness about the pending charges. Therefore, we conclude that the claim is not preserved.

“When a party raises a claim for the first time on appeal, our review of the claim is limited to review under either the plain error doctrine as provided by Practice Book § 60-5, or the doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). . . . This court often has noted that it is not appropriate to engage in a level of review that is not requested. . . . When the parties have neither briefed nor argued plain error [or Golding review], we will not afford such review.” (Citation omitted; internal quotation marks omitted.) State v. Klinger, 103 Conn. App. 163, 168-69, 927 A.2d 373 (2007). The defendant did not seek plain error or Golding review of his unpreserved claim. Accordingly, we decline to consider it.

II

The defendant also claims that the court’s reliance on clearly erroneous findings of fact was an abuse of discretion. Specifically, the defendant maintains that there was no evidence submitted during the adjudicatory phase of the hearing to support the court’s inference that a one ounce quantity of crack cocaine is indicative of intent to sell. Additionally, he argues that there was no evidence that the April 7, 2009 incident was “ ‘an ongoing pattern of activity’ ” because the sole basis for this determination was the state’s proffer of the defendant’s pending charges. We disagree.

At the beginning of the dispositional phase of the probation revocation hearing, the court noted that the defendant’s probation officer, John Garger, had testified that he believed that the beneficial purposes of probation would not continue being served by returning the defendant to probation, that the offense that formed the basis of the probation violation was identical to the one for which the defendant was sentenced to probation and that “the quantity of cocaine possessed . . . crack cocaine possessed by the defendant on April 7, 2009, was substantial, in excess of one ounce of cocaine. This obviously is an amount which is possessed for purposes not only of possession for potential use, but also sale, thus aggravating the offense.” After learning from the state that the defendant had a prior conviction from 2007 for possession of marijuana, the court additionally noted that the April, 2009 offense occurred less than eighteen months after the defendant was placed on probation. The court then found that “the beneficial purposes of probation would not be served by restoring the defendant to probation.”

After making its initial determination, the court heard from the state regarding the defendant’s pending charges. See part I of this opinion. The court subsequently revoked the defendant’s probation and sentenced him to a term of incarceration.

We begin with our standard of review. “The standard of review of the trial court’s decision at the [disposi-tional] phase of the revocation of probation hearing is whether the trial court exercised its discretion properly by reinstating the original sentence and ordering incarceration. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. ... In the dispositional phase, [t]he ultimate question [in the probation process is] whether the probationer is still a good risk .... This determination involves the consideration of the goals of probation, including whether the probationer’s behavior is inimical to his own rehabilitation, as well as to the safety of the public.” (Citations omitted; internal quotation marks omitted.) State v. Preston, 286 Conn. 367, 377, 944 A.2d 276 (2008).

We reject the defendant’s contention that, without evidence of intent to sell, the court could not have drawn the reasonable inference that the quantity of crack cocaine found in the defendant’s possession indicated an intent to sell. “Possession of large quantities of prohibited narcotics will support a conclusion that it was possessed for distribution or for sale.” (Internal quotation marks omitted.) State v. Parent, 8 Conn. App. 469, 474, 513 A.2d 725 (1986). The court based its finding that the defendant had an intent to sell on Rosado’s testimony that he found a large rock of crack cocaine, in excess of one ounce, in the groin area of the defendant. Although it would have been a permissible inference that the defendant was simply a heavy personal user, it was also a permissible inference that he intended to deliver some or all of the drugs to others. See id., 475. Thus, the court did not improperly determine that the defendant intended to sell the crack cocaine found in his possession because the inference was based on evidence that was properly submitted and found by the court during the adjudicatory phase of the hearing.

With respect to the defendant’s argument that the court abused its discretion by improperly relying on the state’s proffer to determine that the defendant’s violation constituted “an ongoing pattern of activity,” we disagree. Although there is evidence that the court solicited information about the pending charges, we can find nothing in the record to demonstrate that the court, in fact, relied on that information. A reasonable interpretation of the court’s statement is that the ongoing pattern of activity referred, not to drug sales, but to drug possession, as there was unchallenged evidence adduced at the hearing that this was the defendant’s third charge of drug possession in two years. “In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling.” (Internal quotation marks omitted.) State v. Preston, supra, 286 Conn. 377. Accordingly, we conclude that the court did not abuse its discretion in revoking the defendant’s probation.

Ill

The defendant also asks this court to exercise its supervisory powers and find that the court committed plain error when it allegedly violated the defendant’s right to allocution pursuant to Practice Book § 43-10 prior to imposing the sentence. He maintains that the lack of a clear dispositional phase—the court made its factual findings then “immediately turned to the task of imposing sentence”—was error. Because we conclude that the defendant was given a reasonable opportunity to allocute, we decline to exercise our supervisory powers.

After the court heard the information about the defendant’s prior charges, it asked defense counsel: “All right. . . . [I]s there anything else that you wanted to add before I—?” Defense counsel responded, “No, Your Honor.”

Practice Book § 43-10 provides in relevant part: “Before imposing a sentence or making any other disposition after the acceptance of a plea of guilty or nolo contendere or upon a verdict or finding of guilty, the judicial authority shall . . . conduct a sentencing hearing as follows ... (3) The judicial authority shall allow the defendant a reasonable opportunity to make a personal statement in his or her own behalf and to present any information in mitigation of the sentence. ...”

“[Practice Book] § 43-10 (3) includes no requirement that the court make personal inquiry of the defendant whether he wishes to speak before sentencing. Although it is the better practice for the trial court to inquire of each defendant whether he or she wishes to make a personal statement before being sentenced for violation of probation, and we encourage the trial court to make such an inquiry, we conclude that the plain language of [Practice Book] § 43-10 (3) does not require that such an inquiry be made . . . .” (Internal quotation marks omitted.) State v. Baker, 141 Conn. App. 669, 672-73, 62 A.3d 595 (2013).

Even though the court did not have an affirmative duty to provide the defendant with an opportunity to allocute, the defendant was, in fact, given a reasonable opportunity to do so. When the court asked if defense counsel wanted to add anything, counsel cut short the court’s question and stated that he did not. “Absent some indication to the contrary, a court is entitled to rely on counsel’s representations on behalf of his or her client.” (Internal quotation marks omitted.) State v. Hall, 303 Conn. 527, 536, 35 A.3d 237 (2012). Nothing in the record indicated that the defendant objected, demonstrated surprise or in any way gave the court reason to doubt the accuracy of defense counsel’s statement. In the absence of any evidence to the contrary, we conclude that when presented with a reasonable opportunity to allocute, the defendant declined to do so. See State v. Baker, supra, 141 Conn. App. 673. Because the court did not commit an error, we decline to exercise our supervisory powers.

The judgment is affirmed.

In this opinion the other judges concurred.

        State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

       “[T]he plain error doctrine, which is now codified at Practice Book § 60-5 ... is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. ... In addition, the plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice. . . . [Thus, a] defendant cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” (Internal quotation marks omitted.) Fiorelli v. Gorsky, 120 Conn. App. 298, 303-304, 991 A.2d 1105, cert. denied, 298 Conn. 933, 10 A.3d 517 (2010).