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CHANDRA BOZELKO v. COMMISSIONER

OF CORRECTION

(AC 35990)

DiPentima, C. J., and Beach and Bear, Js.

Argued October 14, 2015—officially released February 2, 2016

(Appeal from Superior Court, judicial district of

Tolland, Cobb, J.)

Chandra Bozelko, self-represented, the appellant

(petitioner).

Kathryn W. Bare, assistant state’s attorney, with

whom, on the brief, were Kevin D. Lawlor, state’s attorney, Angela R. Macchiarulo, senior assistant state’s

attorney, and Yamini Menon, special deputy assistant

state’s attorney, for the appellee (respondent).
Opinion

BEACH, J. The petitioner, Chandra Bozelko, appeals

from the judgment of the habeas court denying her

petition for a writ of habeas corpus. She claims that

the court erred in denying her claim of ineffective assistance of trial counsel due to a failure to investigate

effectively.1 She further argues that the court abused its

discretion in denying certification to appeal. We dismiss

the appeal.

The petitioner claims that her counsel provided ineffective assistance in the course of defending her against

charges of jury tampering. She pleaded guilty to and was

convicted of making telephone calls to jurors during

her criminal trial on certain otherwise unrelated prior

charges.2 The habeas court recited the following facts

with respect to the jury tampering: ‘‘On the evening of

October 4, 2007, while the petitioner’s criminal jury

trial was underway, several jurors assigned to the case

received telephone calls at their residences from a telephone number identified on their respective caller identification systems as originating from Kate’s Paperie, a

business establishment in Greenwich, Connecticut. A

male caller asked the jurors questions regarding their

status as jurors and instructed the jurors that they

should not find the petitioner guilty of the pending

charges. The petitioner submitted an affidavit to the

court indicating that she received several calls from

jurors at her residence on October 8, 2007.

‘‘The police conducted an extensive investigation and

determined that the calls did not originate from Kate’s

Paperie orfrom the jurors’ residences. The police determined that the caller identification information for

these calls had been ‘spoofed,’ a process whereby the

caller attaches false identity contact information to the

communication. The police discovered that a ‘SpoofCard’ was purchased on April 12, 2007, with the computerlocated in the petitioner’s residence and her mother’s credit card. A SpoofCard allows the user to change

caller identification information through the use of a

computer service. A SpoofCard user also has the ability

to change his or her voice to that of a male or female.

‘‘The call records showed that 123 calls were made

with the [Spoof]card beginning on April 12, 2007, and

ending on October 4, 2007. Ninety-four of the calls originated from the petitioner’s father’s fax machine phone

number, nineteen of the calls originated from the petitioner’s residential phone number and ten of the calls

originated from a Tracfone phone number. The Tracfone, a prepaid cell phone, was activated from the computer in the petitioner’s residence. The SpoofCard and

the Tracfone were used to place the phone calls to the

jurors on October 4, 2007. The calls took place over

the span of an hour and a half, beginning at 7:22 p.m.

and ending at 8:52 p.m. All of the phone calls made
using the SpoofCard were recorded.

‘‘A second SpoofCard was purchased on October 8,

2007, with the computer located in the petitioner’s residence and a prepaid credit card that was found in the

petitioner’s bedroom when the search warrant was executed. The second SpoofCard and the Tracfone were

used to make calls to the petitioner’s residence from

phone numbers spoofed to appear as if the calls originated from the jurors’ residences. There were no

recordings made of these calls.’’ The habeas court further explained that, in connection with this incident,

‘‘[t]he petitioner was charged with six counts of attempt

to commit tampering with a jurorin violation of General

Statutes §§ 53a-49 (a) (2) and 53a-154, one count of

false statement in the second degree in violation of

General Statutes [Rev. to 2007] § 53a-157b and one

count of tampering with physical evidence in violation

of General Statutes § 53a-155 (1). The petitioner was

also charged with [crimes] arising from the same allegations in a separate case in the Stamford judicial district.

The petitioner’s exposure on these charges was approximately fifty years.

‘‘Attorney Dean Popkin represented the petitioner.

The petitioner entered a guilty plea, under the Alford

doctrine,3

to three counts of attempt to commit tampering with a juror on March 30, 2010. On May 24, 2010,

the petitioner was sentenced to twenty-seven months

incarceration on each count, to run concurrently, for

a total effective sentence of twenty-seven months

imprisonment.4 The state nolled the remaining charges

against the petitioner in both this case and the Stamford case.’’

The petitioner filed a petition for a writ of habeas

corpus in August, 2010. In the operative petition, she

claimed that her trial counsel was ineffective for failing

to conduct an adequate pretrial investigation prior to

the entry of her plea. She claimed that he did not effectively investigate the petitioner’s innocent use of

another telephone line in the same time frame in which

the telephone calls to the jurors were taking place,

and that he did not effectively investigate all of the

telephone records. The court denied the petition and

found that the petitioner had failed to establish both

deficient performance and prejudice. The habeas court

denied her petition for certification to appeal. This

appeal followed.

As a threshold matter, the petitioner claims that the

habeas court abused its discretion in denying her petition for certification to appeal.5

‘‘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. . . . A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of

reason . . . [the] court could resolve the issues [in a
different manner] . . . or . . . the questions are adequate to deserve encouragement to proceed further.

. . . The required determination may be made on the

basis of the record before the habeas court and applicable legal principles. . . .

‘‘In determining whether the habeas court abused

its discretion in denying the petitioner’s request for

certification, we necessarily must considerthe merits of

the petitioner’s underlying claims to determine whether

the habeas court reasonably determined that the petitioner’s appeal was frivolous. In other words, we review

the petitioner’s substantive claims for the purpose of

ascertaining whether those claims satisfy one or more

of the three criteria . . . adopted by [our Supreme

Court] for determining the propriety of the habeas

court’s denial of the petition for certification. Absent

such a showing by the petitioner, the judgment of the

habeas court must be affirmed.’’ (Citation omitted;

internal quotation marks omitted.) Ham v. Commissioner of Correction, 152 Conn. App. 212, 217–18, 98

A.3d 81, cert. denied, 314 Conn. 932, 102 A.3d 83 (2014).

Resolution of the petitioner’s threshold claim that the

court abused its discretion in denying her petition for

certification to appeal requires an examination of her

underlying claims, and, thus, we address these claims

in turn.

The petitioner claims that the court erred: (1) in finding that her counsel’s performance was not deficient,

and (2) in using an incorrect standard for determining

prejudice. We are not persuaded.

‘‘In a habeas appeal, this court cannot disturb the

underlying facts found by the habeas court unless they

are clearly erroneous, but 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.’’ (Internal quotation

marks omitted.) Williams v. Commissioner of Correction, 117 Conn. App. 510, 519, 978 A.2d 1167 (2009).

‘‘[T]he governing legal principles in cases involving

claims of ineffective assistance of counsel arising in

connection with guilty pleas are set forth in Strickland

[v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.

2d 674 (1984)] and Hill [v. Lockhart, 474 U.S. 52, 106

S. Ct. 366, 88 L. Ed. 2d 203 (1985)]. [According to]

Strickland, [an ineffective assistance of counsel] claim

must be supported by evidence establishing that (1)

counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a

reasonable probability that the outcome of the proceedings would have been different had it not been for the

deficient performance. . . . The first prong requires a

showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed . . .

by the [s]ixth [a]mendment. . . . Under . . . Hill
. . . which . . . modified the prejudice prong of the

Strickland test for claims of ineffective assistance when

the conviction resulted from a guilty plea, the evidence

must demonstrate that there is a reasonable probability

that, but for counsel’s errors, [the petitioner] would not

have pleaded guilty and would have insisted on going

to trial.’’ (Emphasis omitted; internal quotation marks

omitted.) Patterson v. Commissioner of Correction,

150 Conn. App. 30, 35, 89 A.3d 1018 (2014). An ineffective assistance of counsel claim ‘‘will succeed only if

both prongs [of Strickland as modified by Hill] are

satisfied.’’ (Internal quotation marks omitted.) Mozell

v. Commissioner of Correction, 291 Conn. 62, 77, 967

A.2d 41 (2009).

I

DEFICIENT PERFORMANCE

The petitioner argues that the court erred in determining that Popkin’s performance was not deficient. She

contends that he rendered deficient performance in that

he failed to examine the telephone records provided

by the state during discovery, which show telephone

calls made on the night in question from the landline

at her residence, and that he failed to interview one

Willie Green, since deceased. Green, an employee at

Kinsella Commons, a mental health and substance

abuse treatment center, allegedly was the recipient of

an innocent call from the landline at the residence on

the night in question. The petitioner claims that Green

could have provided useful information about the call.6

We disagree with the petitioner’s claim in this regard.

The following additional findings of fact and conclusions of law were made by the habeas court. ‘‘At trial,

the petitioner introduced records from AT&T and

Kinsella Commons to demonstrate what additional

investigation by Attorney Popkin would have revealed.

The AT&T phone records submitted into evidence indicate that several calls were made from the landline at

the petitioner’s residence on the evening of October 4,

2007. The first outgoing phone call was made at 7:24

p.m., and the last outgoing phone call was made at

10:01 p.m. The durations of the phone calls ranged from

approximately one second to four and a half minutes.

The petitioner testified that the outgoing calls were

made to Kinsella Commons, [a patient at the facility],

relatives of [the patient], and the petitioner’s sisters.

The notes submitted from Kinsella Commons, handwritten by Willie Green, a supervisor of the center’s residents, state that Green received a phone call from the

petitioner on the evening of October 4, 2007. Green’s

notes indicate that the call was received at 7:45 p.m.,

but they do not indicate how long the phone call lasted.

The AT&T phone records indicate that one phone call

was made from the petitioner’s residence to Kinsella

Commons at 7:48 p.m., and the call ended at 7:52 p.m.
‘‘Attorney Popkin hired an investigator in this case.

The investigator attempted to contactindividuals identified by the petitioner as having some involvement with

the case, but they refused to speak with him. The investigator also arranged for a forensic review of the petitioner’s hard drive, but the forensic examiner found more

evidence on the computer that was detrimental to the

petitioner than the state police had found. The court

credits Attorney Popkin’s testimony that he also

requested the phone records to substantiate the petitioner’s claimed theory of defense, but he did not find

them to be helpful. The phone records did not prove that

it was the petitioner making the phone calls. Moreover,

Attorney Popkin determined that several brief phone

calls to Kinsella Commons would not account for the

hour and a half time frame during which the calls were

made to the jurors.

‘‘Attorney Popkin wrote a letter to the petitioner,

recommending that she plead guilty due to the strength

of the state’s case against her and her lack of a viable

defense. While the voice on the tape recordings of the

phone calls made to the jurors using the SpoofCard

was disguised in a male voice, the voice on other phone

calls recorded on the card was not disguised. Attorney

Popkin determined that the petitioner’s defense would

require her to testify, and he believed that any jury that

heard the tape recordings and the petitioner’s voice

would determine that it was her voice on those phone

calls. Attorney Popkin testified that he reviewed the

tapes with the petitioner, and that she decided to plead

guilty after hearing the recordings. He believed that the

plea deal was very favorable in light of the exposure she

faced. The sentencing court, Rodriguez, J., thoroughly

canvassed the petitioner regarding her plea.

‘‘Pursuant to the foregoing, the court finds that the

evidence submitted by the petitioner is insufficient to

establish the existence of exculpatory information that

should have been discovered had a proper investigation

been conducted. Attorney Popkin’s investigation was

objectively reasonable under the circumstances of this

case, and the petitioner has not met her burden of

proving deficient performance for purposes of her ineffective assistance claim.’’

The court did not err in concluding that Popkin had

notrendered deficient performance. He hired an investigator and examined the petitioner’s defense that she

was making telephone calls from the landline at her

residence during the time in which the telephone calls

to the jurors had been made. He found the telephone

records that he had requested, in order to support the

petitioner’s defense theory, to be unhelpful. The records

did not prove that the petitioner had made the telephone

calls herself, and, because of the brief duration of the

telephone calls from the landline, even if the petitioner

had made those calls, she still had an hour and a half
in which to telephone the jurors using the cell phone.7

Popkin determined that not only were the additional

telephone calls on the night in question of insufficient

duration reasonably to eliminate the petitioner as the

maker of the incriminating calls—for instance, the call

to Green accounted for only approximately four

minutes of the one and one half hour time frame in

which the jurors were telephoned—but also that the

jury would be able to match the voice on the tape

recorded telephone calls to the petitioner’s voice, which

of course would be heard if she testified. Popkin testified that roughly twenty calls were made using the

SpoofCard and that the caller’s voice was disguised on

some of the calls. He testified that other calls captured

what Popkin believed to be the petitioner’s real voice.

He further testified that the petitioner decided to plead

guilty after hearing the recordings of her voice. The

court determined that Popkin’s investigation was objectively reasonable under the circumstances of the case.

The petitioner argues, however, that Popkin was ineffective for not investigating the petitioner’s defense further. ‘‘[C]ounsel need not track down each and every

lead or personally investigate every evidentiary possibility before choosing a defense and developing it . . .

[as] [e]ffective assistance of counsel imposes an obligation [on] the attorney to investigate all surrounding

circumstances of the case and to explore all avenues

that may potentially lead to facts relevant to the defense

of the case. . . . In other words, counsel has a duty to

make reasonable investigations orto make a reasonable

decision that makes particular investigations unnecessary. . . . If counsel makes strategic decisions after

thorough investigation, those decisions are virtually

unchallengeable . . . .’’ (Citations omitted; internal

quotation marks omitted.) Taft v. Commissioner of

Correction, 159 Conn. App. 537, 547, 124 A.3d 1, cert.

denied, 320 Conn. 910, A.3d (2015). We conclude

that the court did not err in concluding that Popkin’s

performance was not constitutionally deficient.

II

PREJUDICE

The petitioner next argues that the habeas court

relied on the superseded prejudice standard enunciated

in Copas v. Commissioner of Correction, 234 Conn.

139, 151, 662 A.2d 178 (1995), and examined only the

strength of the state’s case. The petitioner argues that

the court failed to use the proper prejudice standard

articulated in Carraway v. Commissioner of Correction, 317 Conn. 594, 600 n.6, 119 A.3d 1153 (2015).

We disagree.

‘‘For claims of ineffective assistance of counsel arising out of the plea process, the United States Supreme

Court has modified the [prejudice] prong of the Strickland test to require that the petitioner produce evidence
‘that there is a reasonable probability that, but for counsel’s errors, [the petitioner] would not have pleaded

guilty and would have insisted on going to trial.’ Hill

v. Lockhart, supra, 474 U.S. 59.’’ Thiersaint v. Commissioner of Correction, 316 Conn. 89, 101, 111 A.3d 829

(2015). In Copas v. Commissioner of Correction, supra,

234 Conn. 151, our Supreme Court interpreted Hill to

require that in order to prove prejudice the petitioner

must ‘‘demonstrate that [s]he would not have pleaded

guilty, that [s]he would have insisted on going to trial,

and that the evidence that had been undiscovered or

the defenses [s]he claims should have been introduced

were likely to have been successful at trial.’’ In Carraway, our Supreme Court held that the prejudice standard enunciated in Copas had been overruled, sub

silentio, by statements in more recent cases in which

it ‘‘specifically disapproved of the petitioner’s characterization of the prejudice prong as ‘a reasonable probability that the result of the trial court proceedings would

have been different’ and instead stated that ‘[i]n the

context of a guilty plea . . . to succeed on the prejudice prong the petitioner must demonstrate that, but

for counsel’s alleged ineffective performance, the petitioner would not have pleaded guilty and would have

proceeded to trial.’ ’’ Carraway v. Commissioner of

Correction, supra, 317 Conn. 600 n.6, citing Washington

v. Commissioner of Correction, 287 Conn. 792, 835, 950

A.2d 1220 (2008) and Crawford v. Commissioner of

Correction, 285 Conn. 585, 598, 940 A.2d 789 (2008).

The habeas court used the proper prejudice standard

under Carraway. In its introductory discussion of law,

the court specifically stated the same standard as that

enunciated in Carraway. The court later specifically

found: ‘‘The evidence submitted by the petitioner is

insufficient to establish the existence of exculpatory

information that would have changed the result in this

case. The telephone records reveal that calls were made

on the landline in the petitioner’s residence; however,

the telephone calls made to the jurors were placed on

a Tracfone. The duration of the outgoing telephone calls

do not amount to the time needed to attempt to tamper

with the jurors. Furthermore, there is no evidence that

it was the petitioner who was making the telephone

calls. The only evidence of a telephone call made by

the petitioner on October 4, 2007, is a four minute telephone call made to Green around 7:45 p.m. The petitioner pleaded guilty as a result of the strength of the

state’s case, particularly, the existence of the tape

recordings featuring the petitioner’s voice that the state

intended to introduce into evidence, and the potential

exposure that she faced if convicted. The court does

not credit the petitioner’s testimony that she would

have gone to trial in light of these circumstances. The

court finds that there is not a reasonable probability

that this newly submitted evidence would have changed

the petitioner’s decision to plead guilty.’’
The court clearly assessed whether the petitioner,

but for counsel’s alleged ineffective performance,

would not have pleaded guilty and would have proceeded to trial. The court discredited the petitioner’s

testimony that she would have gone to trial.8 The court

analyzed the strength of the state’s case, to be sure, as

the strength of the state’s case played a role in the

petitioner’s decision to plead guilty and in the court’s

determination of whether that decision would likely

have changed if the ‘‘new’’ evidence had been developed

at the time of the plea. The court concluded that it was

not reasonably probable that the new evidence would

have changed the petitioner’s mind to plead guilty. We

conclude that the court used the proper standard in

assessing prejudice.

After a thorough review of the record and briefs, we

conclude that the petitioner did not demonstrate that

the issues she has raised in her petition for certification

to appeal are debatable among jurists of reason, that a

court could resolve those issues differently or that the

questions raised deserve encouragementto proceed further.9 Accordingly, we conclude that the petitioner has

failed to demonstrate that the court abused its discretion in denying her petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

1 The petitioner also claimed ineffective assistance of habeas counsel.

This issue was not raised before or addressed by the habeas court and,

thus, we decline to afford it review. ‘‘It is fundamental that claims of error

must be distinctly raised and decided in the [habeas] court before they are

reviewed on appeal.As a result, Connecticut appellate courts will not address

issues not decided by the [habeas] court.’’ (Internal quotation marks omitted.) Tompkins v. Freedom of Information Commission, 136 Conn. App.

496, 511, 46 A.3d 291 (2012).

2 The unrelated prior charges, and the facts underlying them, for which

the petitioner was ultimately convicted, are set forth in State v. Bozelko,

119 Conn. App. 483, 987 A.2d 1102, cert. denied, 295 Conn. 916, 990 A.2d

867 (2010), cert. denied, U.S. , 134 S. Ct. 1314, 188 L. Ed. 2d 331 (2014).

3 See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed 2d

162 (1970).

4 At the time she filed the petition for a writ of habeas corpus, the petitioner

was incarcerated. The respondent, the Commissioner of Correction, notes

that the petitioner has completed her sentence. The appeal, however, is not

moot because the petitioner was in custody at the time she filed the petition

and there are collateral consequences to her conviction. See Carpenter v.

Commissioner of Correction, 290 Conn. 107, 116 n.6, 961 A.2d 403 (2009).

5 Following the filing of the appellate brief of the petitioner, who is selfrepresented on appeal, this court sua sponte ordered the petitioner to file a

supplemental brief addressing the threshold question of whether the habeas

court abused its discretion in denying certification to appeal. The petitioner

filed a supplemental brief addressing the issue.

6 The petitioner presented the scenario that, during the relevant time

frame, she pursued legal business regarding a resident of Kinsella Commons.

Green was an employee of Kinsella Commons who took a message from

the petitioner.

7 At oral argument before this court, the petitioner conceded that the

telephone records did not show that calls from the cell phone to jurors

necessarily overlapped with any call from the landline to Green.

8 The petitioner argues that her plea under the Alford doctrine was rendered involuntary by Popkin’s failure to investigate, leaving her with no

choice but to plead guilty. The petitioner did not raise this claim on direct

appeal, or before the habeas court where a determination could have been
made if cause and prejudice existed so as to excuse procedural default. See

Taylor v. Commissioner of Correction, 94 Conn. App. 772, 784–86, 895 A.2d

246 (2006) (setting forth cause and prejudice standard in context of excusing

procedural default), rev’d on other grounds, 284 Conn. 433, 936 A.2d 611

(2007). This argument essentially is a restating of her ineffective assistance

of counsel claim. The habeas court discredited her testimony that she would

have gone to trial even if she had been aware at the time of the plea of all

the evidence adduced at the habeas trial. Furthermore, the habeas court

determined, in dicta, that the Alford plea was voluntary.

9 The petitioner also argues that it was improper for the same judge who

presided over the habeas trial to rule on the motion for certification to

appeal because ‘‘any judge who reviews her own work and certifies whether

it can be appealed is not a fair arbitrator,’’ thus, violating the due process

clause of the fourteenth amendment to the federal constitution. ‘‘Connecticut’s appellate courts [generally] do not review judicial disqualification

claims raised for the first time on appeal because the parties, by failing to

object, are deemed to have consented to the participation of the allegedly

disqualified judge.’’ State v. Rizzo, 303 Conn. 71, 115, 31 A.3d 1094 (2011),

cert. denied, U.S. , 133 S. Ct. 133, 184 L. Ed. 2d 64 (2012). We will note,

however, that ‘‘[t]he United States Supreme Court consistently has held that

a judge’s failure to disqualify himself or herself will implicate the due process

clause only when the right to disqualification arises from actual bias on the

part of that judge.’’ (Emphasis omitted.) State v. Canales, 281 Conn. 572,

594, 916 A.2d 767 (2007). The petitioner makes no claim of actual bias; thus,

due process concerns are not implicated. See Francis v. Commissioner of

Correction, 142 Conn. App. 530, 546, 66 A.3d 501 (‘‘[I]t is well settled that

a judge’s involvement in more than one stage of a criminal case does not

per se create an appearance of partiality requiring disqualification. Indeed,

as our Supreme Court has stated: ‘[T]he law presumes that duly elected or

appointed judges, consistent with their oaths of office, will perform their

duties impartially,’ and ‘a judge’s participation in the preliminary stages of

a case, and the knowledge he or she thereby gains, will not ordinarily

preclude his or her continued participation in the same case thereafter.’ ’’),

cert. denied, 310 Conn. 921, 77 A.3d 141 (2013), quoting State v. Rizzo, supra,

119–20. We additionally note that General Statutes § 52-470 (g) specifically

provides that the petition for certification is to be presented to the judge

who tried the habeas corpus proceeding, unless that judge is unavailable.