Lukowski 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. ****************************************************** CHRISTOPHER LUKOWSKI v. COMMISSIONER OF CORRECTION (AC 25762) Bishop, DiPentima and Gruendel, Js. Submitted on briefs September 28 officially released October 25, 2005 (Appeal from Superior Court, judicial district of Tolland, White, J.) Emmet P. Hibson, Jr., special public defender, filed a brief for the appellant (petitioner). Matthew C. Gedansky, state s attorney, and Leon F. Dalbec and Angela R. Macchiarulo, senior assistant state s attorneys, filed a brief for the appellee (respondent). Opinion PER CURIAM. The petitioner, Christopher Lukowski, appeals following the denial of his petition for certification to appeal from the judgment denying his petition for a writ of habeas corpus. We dismiss the appeal. On December 21, 2001, the petitioner pleaded guilty to sale of marijuana and violation of probation, and was sentenced to three years of incarceration and three years of special parole. The petitioner filed a petition for a writ of habeas corpus, claiming ineffective assistance of counsel based on the assertion that his trial attorney failed to explain that his sentence involved special parole rather than probation. In denying the petition, the court determined that the petitioner had failed to prove that the performance of his counsel was deficient or that he was prejudiced by the performance of his counsel. The court found that the petitioner had understood his sentence on the basis of the facts that he repeatedly had assured the sentencing court that he understood his sentence, was satisfied with the advice of his attorney and did not have any questions. The court further found that even if counsel s performance had been deficient, the petitioner was not prejudiced because, by his admission, he would not have taken his case to trial. The court subsequently denied the petition for certification to appeal. This appeal followed. In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, 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. . . . Faced with a habeas court s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. . . . To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. (Citations omitted; internal quotation marks omitted.) Owens v. Commissioner of Correction, 63 Conn. App. 829, 830 31, 779 A.2d 165, cert. denied, 258 Conn. 905, 782 A.2d 138 (2001). After a careful review of the record and briefs, we conclude that the petitioner has not demonstrated that the issues he raises on appeal are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further. See Lozada v. Deeds, 498 U.S. 430, 431 32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991); Simms v. Warden, supra, 230 Conn. 616. The appeal is dismissed.
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