Ostolaza v. Warden

603 A.2d 768, 26 Conn. App. 758, 1992 Conn. App. LEXIS 87
CourtConnecticut Appellate Court
DecidedFebruary 25, 1992
Docket9612
StatusPublished
Cited by120 cases

This text of 603 A.2d 768 (Ostolaza v. Warden) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ostolaza v. Warden, 603 A.2d 768, 26 Conn. App. 758, 1992 Conn. App. LEXIS 87 (Colo. Ct. App. 1992).

Opinion

Norcott, J.

The petitioner, Simon Ostolaza, was found guilty after a jury trial of eight counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), and eight counts of risk of injury to a minor in violation of General Statutes § 53-21.1 On February 27, 1987, the trial court sentenced the petitioner to seven years imprisonment for each count, to run consecutively, for a total effective sentence of 112 years. The facts regarding this particularly disturbing sexual assault of two minor boys are fully set out in State v. Ostolaza, 20 Conn. App. 40, 564 A.2d 324, cert. denied, 213 Conn. 808, 568 A.2d 793 (1989), and need not be repeated here.

On appeal from this judgment of conviction, this court affirmed all but one count of the petitioner’s conviction and reduced the petitioner’s sentence to 105 years. See State v. Ostolaza, supra.2

[760]*760On May 2, 1987, during the pendency of his direct appeal, the petitioner filed a petition for a writ of habeas corpus in the Superior Court for the judicial district of Tolland. The third amended petition alleged ineffective assistance of counsel during the petitioner’s trial. After a full hearing, the habeas court, Kaplan, J., denied the petitioner’s application for habeas relief. The petitioner now appeals to this court from the judgment of the habeas court, claiming that the habeas court failed (1) to find that the petitioner had ineffective assistance of counsel as to his decision not to testify at trial, (2) to find that trial counsel had incompetently investigated the case and prepared a defense, (3) to find that the trial court had improperly closed the court during a witness’ cross-examination, and (4) to reopen the evidence. We affirm the judgment of the habeas court.

It is axiomatic that “[t]he petitioner, as the plaintiff in a habeas corpus proceeding, bears a heavy burden of proof”; Lubesky v. Bronson, 213 Conn. 97, 110, 566 A.2d 688 (1989); see also Hayes v. Maggio, 699 F.2d 198 (5th Cir. 1983); and that the claimed error of law must constitute “a fundamental defect which inherently results in a miscarriage of justice. . . .” Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962). Habeas corpus provides an extraordinary legal remedy for illegal detention; McClain v. Robinson, 189 Conn. 663, 668, 457 A.2d 1072 (1983); and should be available to those “ ‘whom society has grievously wronged.’ ” Kuhlman v. Wilson, 477 U.S. 436, 447, 106 S. Ct. 2616, 91 L. Ed. 2d 364 (1986). It is against these standards that we measure the petitioner’s claims.

The petitioner first makes a broad attack on the effectiveness of his trial counsel. His first two claims are somewhat interrelated in that he argues that the habeas court failed to find (1) that his trial counsel rendered ineffective assistance with respect to his decision not [761]*761to testify at trial and (2) that counsel incompetently investigated the case and prepared an inadequate defense. Our Supreme Court has made clear that to succeed in his claim of ineffective assistance of counsel, the petitioner must show that his attorney’s performance was not “ ‘reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law’ State v. Clark, 170 Conn. 273, 283, 365 A.2d 1167, cert. denied, 425 U.S. 962, 96 S. Ct. 1748, 48 L. Ed. 2d 208 (1976), quoting Gentry v. Warden, 167 Conn. 639, 646, 356 A.2d 902 (1975); and that this “ ‘lack of competency contributed to the conviction.’ ” State v. Clark, supra; Levine v. Manson, 195 Conn. 636, 639, 490 A.2d 82 (1985). Furthermore, our Supreme Court has adopted the two-pronged test for ineffectiveness of counsel set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). That test requires a conclusive showing that (1) the attorney’s performance was so deficient and the errors made by counsel were so egregious that the attorney was not functioning as counsel; id., 687; and (2) there exists “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id., 694. Thus, added to the petitioner’s heavy burden of proof is the requirement that there be a showing of prejudice that had an effect on the judgment. United States v. Frady, 456 U.S. 152, 170, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982).

As part of his first argument, the petitioner attacks the habeas court’s refusal to find that his trial counsel should have filed a pretrial motion in limine which, he contends, would have aided him in his decision whether to testify at trial. As a corollary to this argument, the petitioner claims that the habeas court wrongfully con-[762]*762eluded that his counsel did not abandon his duty to advise him properly on the decision whether to testify. Neither of these claims has merit.

I

Trial Counsel’s Pretrial Decisions and Advice

The petitioner’s first claim is that his trial counsel’s failure to file a motion in limine in order (1) to obtain a ruling concerning the admissibility of his prior convictions and (2) to assess the exercise of his right to testify constituted ineffective assistance of counsel to his prejudice. After a full hearing, the habeas court found no merit to these claims. We agree.

At the habeas trial, the court heard all of the petitioner’s evidence relevant to this claim and concluded that “trial counsel’s advice concerning the admissibility of the prior convictions and the ‘pros and cons’ of testifying constituted sound professional judgment.” When the conclusions of the habeas court are attacked on appeal, they are reviewed to determine whether they are legally and logically supported by the facts or involve an erroneous application of law materially relevant to the case. Parham v. Warden, 172 Conn. 126, 131, 374 A.2d 137 (1976); Tyson v. Warden, 24 Conn. App. 729, 736, 591 A.2d 817, cert. denied, 220 Conn. 909, 597 A.2d 340 (1991).

Here, the habeas court reviewed the relevant law regarding the impeachment of the defendant as a witness by proof of prior convictions of crimes for which imprisonment may be more than one year. See General Statutes § 52-145 (6); State v. Hamele, 188 Conn. 372, 383, 449 A.2d 1020 (1982); State v. Nardini, 187 Conn. 513, 521, 447 A.2d 396 (1982). It then applied that law to certain relevant facts before it and concluded that “some evidence of the prior convictions would have been allowed to impeach Ostolaza’s testi[763]*763mony.” More relevant were the facts that (1) the petitioner had initially given his trial counsel a false name (Simon Robles) and (2) his record reflected recent3 convictions for murder and robbery.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Santiago v. Commissioner of Correction
213 Conn. App. 358 (Connecticut Appellate Court, 2022)
Skakel v. Comm'r of Corr.
188 A.3d 1 (Supreme Court of Connecticut, 2018)
Petty v. Commissioner of Correction
7 A.3d 411 (Connecticut Appellate Court, 2010)
Miller v. Commissioner of Correction
976 A.2d 6 (Connecticut Appellate Court, 2009)
Toles v. Commissioner of Correction
967 A.2d 576 (Connecticut Appellate Court, 2009)
Ruffin v. Commissioner of Correction
943 A.2d 1105 (Connecticut Appellate Court, 2008)
Wilson v. Commissioner of Correction
932 A.2d 481 (Connecticut Appellate Court, 2007)
Beverly v. Commissioner of Correction
922 A.2d 178 (Connecticut Appellate Court, 2007)
Hopkins v. Commissioner of Correction
899 A.2d 632 (Connecticut Appellate Court, 2006)
Lewis v. Commissioner of Correction
877 A.2d 11 (Connecticut Appellate Court, 2005)
Carmon v. Warden, No. Cv 98-0411202 S (Nov. 5, 2002)
2002 Conn. Super. Ct. 14123 (Connecticut Superior Court, 2002)
Bewry v. Warden, No. Cv93-1665 (Oct. 2, 2001)
2001 Conn. Super. Ct. 13496 (Connecticut Superior Court, 2001)
Walker v. Commissioner of Correction, No. Cv90-911 (Sep. 28, 2000)
2000 Conn. Super. Ct. 11888 (Connecticut Superior Court, 2000)
Nemhard v. Warden, State Prison, No. Cv98-033 20 91 S (Jun. 30, 2000)
2000 Conn. Super. Ct. 7897 (Connecticut Superior Court, 2000)
Silva v. Warden, No. Cv 97-404742 (Nov. 4, 1999)
1999 Conn. Super. Ct. 14416 (Connecticut Superior Court, 1999)
Ferreira v. Commissioner of Correction, No. Cv 98-0002810 (Apr. 1, 1999)
1999 Conn. Super. Ct. 4952 (Connecticut Superior Court, 1999)
Prutting v. Warden, No. Cv 94 0356047s (Nov. 25, 1998)
1998 Conn. Super. Ct. 13806 (Connecticut Superior Court, 1998)
Freeney v. Warden, State Prison, No. Cv 92 1570 S (Mar. 12, 1997)
1997 Conn. Super. Ct. 3332 (Connecticut Superior Court, 1997)
Lovejoy v. Warden, No. Cv93-1967 (Feb. 18, 1997)
1997 Conn. Super. Ct. 1504 (Connecticut Superior Court, 1997)
Haynes v. Warden, State Prison, No. Cv 92 1594 S (Dec. 18, 1996)
1996 Conn. Super. Ct. 6973 (Connecticut Superior Court, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
603 A.2d 768, 26 Conn. App. 758, 1992 Conn. App. LEXIS 87, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ostolaza-v-warden-connappct-1992.