Johnson v. Commissioner of Correction
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****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** RON JOHNSON v. COMMISSIONER OF CORRECTION (AC 20995) Foti, Landau and Dranginis, Js. Submitted on briefs September 12 officially released November 13, 2001 Counsel Patrice A. Cohan, special public defender, filed a brief for the appellant (petitioner). Michael Dearington, state s attorney, Robert M. Spector, deputy assistant state s attorney, and Beth Baran, senior assistant state s attorney, filed a brief for the appellee (respondent). Opinion PER CURIAM. The petitioner, Ron Johnson, appeals following the denial by the habeas court of his petition for certification to appeal from the dismissal of his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly (1) denied his petition for certification to appeal and (2) determined that he was not denied ineffective assistance of counsel. We dismiss the appeal. On September 19, 1997, the petitioner pleaded guilty under the Alford1 doctrine to one count of sexual assault in the first degree in violation of General Statutes § 53a70 (a) (1). The petitioner filed a petition for a writ of habeas corpus alleging ineffective assistance of counsel. Specifically, he alleged that his trial counsel failed to inform him that he would not receive credit for time served from his arrest date of April 30, 1996, through and including his sentencing date of September 19, 1997. At the habeas hearing, the court heard conflicting testimony from the petitioner and his trial counsel regarding whether the petitioner was correctly informed of the sentencing consequences of his guilty plea. The court, finding trial counsel s testimony to be more credible, accordingly dismissed the petition for a writ of habeas corpus. 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. . . . If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on the merits. (Citations omitted.) Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). This court does not retry the case or evaluate the credibility of the 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. (Internal quotation marks omitted.) Colon v. Commissioner of Correction, 55 Conn. App. 763, 765, 741 A.2d 2 (1999), cert. denied, 252 Conn. 921, 744 A.2d 437 (2000). 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. Velez v. Commissioner of Correction, 57 Conn. App. 307, 309, 748 A.2d 350 (2000); see also 2 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 125a, p. 1219. After thoroughly reviewing the record and briefs, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the habeas court s denial of his petition for certification to appeal was a clear abuse of discretion or that an injustice has been committed. See Simms v. Warden, supra, 230 Conn. 612; Johnson v. Commissioner of Correction, 58 Conn. App. 729, 731, 754 A.2d 849, cert. denied, 254 Conn. 928, 761 A.2d 753 (2000); see also Lozada v. Deeds, 498 U.S. 430, 431 32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991). The appeal is dismissed. 1 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
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