Judicial District of Tolland


      Habeas; Whether Habeas Court Could Presume Petitioner was Prejudiced By his Attorney's Deficient Performance When, at Sentencing, the Attorney Stated Only that he Agreed Fully with the State and Made no Argument on Behalf of Petitioner.  The petitioner pleaded guilty to manslaughter in the first degree with a firearm and possession of a pistol without a permit pursuant to a plea agreement.  The agreement gave the state and defense counsel a right to argue as to the appropriate sentence within a range of twenty to twenty-five years of incarceration.  At the sentencing hearing, the court lamented the death of the victim and mentioned the circumstances surrounding his death.  The state had the victim's family members testify as to their loss and recommended a twenty-five year sentence.  Defense counsel stated that he agreed fully with everything that had been said and that he did not think there was anything for him to add.  The court then sentenced the petitioner to the maximum twenty-five year sentence allowed under the plea agreement.  The petitioner brought this habeas action, arguing that his attorney provided ineffective assistance in failing to present mitigating evidence at the sentencing hearing.  The habeas court rejected that claim.  It noted that, under Strickland v. Washington, 466 U.S. 668 (1984), a petitioner must show that his attorney's performance was deficient and that the deficient performance prejudiced his defense.  It then found that counsel's failure to advocate for the petitioner at sentencing constituted deficient performance but that the petitioner did not establish that the deficient performance prejudiced his defense.  It stated that the petitioner failed to present evidence as to what his attorney could have said that would have changed the outcome of the sentencing.  The petitioner appealed, arguing that prejudice should have been presumed because of his attorney's deficient performance.  He claimed that he received the maximum sentence when there was mitigating evidence that could have been presented to reduce his sentence.  He argued that his attorney should have drawn the sentencing court's attention to the fact that he had accepted responsibility for the crimes and spared the state the expense of a trial, that the circumstances of his case could have been characterized as an "imperfect self-defense," and that he felt remorse.   The Appellate Court (147 Conn. App. 343) rejected the petitioner's claim, concluding that all of those facts could have been gleaned from the presentence investigation report, which the trial court reviewed.  It therefore found that the petitioner failed to satisfy the prejudice prong of the Strickland test.  The Supreme Court will now decide whether the Appellate Court properly concluded that the habeas court was correct in ruling that prejudice to the petitioner could not be presumed when, at sentencing, defense counsel stated only that he agreed fully with the state and made no argument on behalf of the petitioner, even though the plea agreement permitted the petitioner to argue for less than the maximum sentence of twenty-five years.