Effective Assistance of Counsel Connecticut

A criminal defendant is entitled, under the sixth and fourteenth amendments to the United States constitution and by article first, 8, of the constitution of Connecticut, to effective assistance of counsel. See Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); Johnson v. Commissioner of Correction, 36 Conn. App. 695, 700-701, 652 A.2d 1050, cert. denied, 233 Conn. 912, 659 A.2d 183 (1995). A criminal defendant is not constitutionally entitled to error free representation. Commissioner of Correction v. Rodriquez, 222 Conn. 469, 478, 610 A.2d 631 (1992). "A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense. . . . Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Lozada v. Warden, 223 Conn. 834, 842-43, 613 A.2d 818 (1992). The determined facts under consideration in an appeal from a denial of habeas relief may not be disturbed unless they are clearly erroneous. Rouillard v. Commissioner of Correction, 35 Conn. App. 754, 759, 646 A.2d 948, cert. denied, 231 Conn. 945, 653 A.2d 827 (1994). It is for the habeas court as the finder of fact to determine the credibility of and the effect to be given to the testimony. Talton v. Warden, 33 Conn. App. 171, 179, 634 A.2d 912 (1993), aff'd, 231 Conn. 274, 648 A.2d 876 (1994). The reviewing court cannot retry the case or pass on the credibility of witnesses. State v. Branham, 56 Conn. App. 395, 398, 743 A.2d 635, cert. denied, 252 Conn. 937, 747 A.2d 3 (2000). Phrased otherwise, "a petitioner claiming ineffective assistance of counsel must satisfy a two-pronged test: (1) that his attorney made errors so serious as to cease functioning as counsel; (2) that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. ' Phillips v. Warden, 220 Conn. 112, 132, 595 A.2d 1356 (1991), quoting Strickland v. Washington, supra, 466 U.S. 668 at 694, 80 L. Ed. 2d 674, 104 S. Ct. 2052." Rouillard v. Commissioner of Correction, supra, 35 Conn. App. 759. "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." Johnson v. Commissioner of Correction, 222 Conn. 87, 92, 608 A.2d 667 (1992). A reviewing court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland v. Washington, supra, 689. Also, the "petitioner must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Siano v. Warden, 31 Conn. App. 94, 97, 623 A.2d 1035, cert. denied, 226 Conn. 910, 628 A.2d 984 (1993).