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ANTHONY SANTANIELLO v. COMMISSIONER

OF CORRECTION

(AC 35369)

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

Argued May 29—officially released September 2, 2014

(Appeal from Superior Court, judicial district of

Tolland, Cobb, J.)

Albert J. Oneto IV, assigned counsel, for the appellant (petitioner).

Timothy F. Costello, assistant state’s attorney, with

whom, on the brief, were Gail P. Hardy, state’s attorney, and Erika L. Brookman, assistant state’s attorney,

for the appellee (respondent).
Opinion

BEACH, J. The petitioner, Anthony Santaniello,

appeals from the judgment of the habeas court denying

his petition for a writ of habeas corpus. On appeal,

the petitioner claims that the habeas court erred in

concluding that he did not meet his burden of proof to

establish ineffective assistance of appellate counsel. We

affirm the judgment of the habeas court.

The petitioner had been convicted in two underlying

criminal cases, which had been consolidated for trial.

The first alleged, primarily, sexual assault. The second,

ultimately the subject of this appeal, alleged that the

petitioner attempted to murder the victim1

in the sexual

assault case to prevent her from testifying against him.

The facts regarding the petitioner’s underlying conviction of attempted murder, as set forth in our opinion in

the direct appeal from those convictions, are as follows:

‘‘Following the [petitioner’s] arrest[in the sexual assault

case], he was incarcerated at the Cheshire Correctional

Institute, where he shared a cell with Thomas Marra

from May 13 until July 30, 2002. In August, 2002, Marra

contacted George Nobile, an inspector with the division

of criminal justice, informing Nobile that he had a cell

mate who wanted to have a witness killed. Nobile and

a supervisor, Gregory Dillon, met with Marra on September 4, 2002, and Marra informed them that the [petitioner] wanted to have the victim killed so that she

could not testify against him. Marra provided a letter

written by the [petitioner] and explained the code words

used in the letter. Subsequently, Marra also provided

Nobile and Dillon with further correspondence from

and to the [petitioner] concerning the [petitioner’s]

desire to have the victim killed.

‘‘On October 9, 2002, Marra telephoned the [petitioner] and told him he could put the [petitioner] in

contact with an assassin. Nobile then assumed the

undercover role of the assassin and contacted the [petitioner] on October 14 and 18, 2002. Nobile set up a

meeting with the [petitioner] forthe morning of October

21, 2002, but the [petitioner] did not appear for that

meeting.

‘‘The [petitioner] was arrested on October 25, 2002,

and was held at the Bridgeport Correctional Center,

where he shared a cell with Andre Holeman. The [petitioner] told Holeman that he was facing sexual assault

charges and that he had wanted the victim killed so

that she could not testify against him. He also told

Holeman about Marra and his arranging a meeting with

an assassin. He further explained to Holeman that he

was supposed to pay the assassin $7500 to kill the victim

but that he did not have the funds and, therefore, was

considering killing the victim himself. The [petitioner]

also asked Holeman to telephone the [petitioner’s]

attorney to report that the [petitioner] had been set up
by Marra. In an amended long form information, the

[petitioner] was charged with attempt to commit murder, inciting injury to another person and intimidating

a witness (attempted murder case).’’ State v. Santaniello, 96 Conn. App. 646, 650–51, 902 A.2d 1, cert. denied,

280 Conn. 920, 908 A.2d 545 (2006).

The cases were consolidated, and, following a trial,

the jury found the petitioner guilty of sexual assault in

the first degree in violation of General Statutes § 53a70 (a) (1), kidnapping in the first degree in violation of

General Statutes § 53a-92 (a) (2) (A), attempt to commit

murder in violation of General Statutes §§ 53a-49 (a)

(2) and 53a-54a, inciting injury to another person in

violation of General Statutes § 53a-179a (a), and intimidating a witness in violation of General Statutes § 53a151a (a) (1). The trial court imposed a total effective

sentence of forty-two years incarceration. This court

affirmed his convictions on direct appeal. Id., 649.

The petitioner filed a petition for a writ of habeas

corpus, which he later amended through counsel. The

amended petition alleged, inter alia, that his appellate

counsel provided ineffective assistance because he

failed to raise on direct appeal a claim of insufficient

evidence with respect to the attempted murder conviction. After a hearing, the habeas court concluded that

the petitioner had failed to meet his burden of establishing deficient performance of appellate counsel and,

accordingly, denied the petition for a writ of habeas

corpus. In its memorandum of decision, the court noted

that the petitioner had failed to produce any testimony

from his appellate counsel or an expert in support of

his claim. The court granted the petitioner certification

to appeal. This appeal followed.

‘‘Our review of the judgment of the habeas court is

carefully circumscribed. The underlying historical facts

found by the habeas court may not be disturbed unless

the findings were clearly erroneous. . . . Whether the

representation a [petitioner] received . . . was constitutionally inadequate is a mixed question of law and

fact. . . . As such, that question requires plenary

review by this court unfettered by the clearly erroneous

standard.’’ (Internal quotation marks omitted.) Vivo v.

Commissioner of Correction, 90 Conn. App. 167, 173,

876 A.2d 1216, cert. denied, 275 Conn. 925, 883 A.2d

1253 (2005).

‘‘To succeed on a claim of ineffective assistance of

counsel, a habeas petitioner must satisfy the twopronged test articulated in Strickland v. Washington,

466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984). Strickland requires that a petitioner satisfy both

a performance prong and a prejudice prong.’’ (Internal

quotation marks omitted.) Small v. Commissioner of

Correction, 286 Conn. 707, 712–13, 946 A.2d 1203, cert.

denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S.

Ct. 481, 172 L. Ed. 2d 336 (2008). In order to satisfy
the performance prong, the petitioner must show that

‘‘appellate counsel’s representation fell below an objective standard of reasonableness considering all of the

circumstances.’’ (Internal quotation marks omitted.)

Johnson v. Commissioner of Correction, 131 Conn.

App. 805, 808, 29 A.3d 166 (2011). In order to satisfy

the prejudice prong, the petitioner must demonstrate

that ‘‘there is a reasonable probability that, but for

appellate counsel’s failure to raise the issue on appeal,

the petitioner would have prevailed in his direct appeal,

i.e., reversal of his conviction or granting of a new trial.

. . . [T]o determine whether a habeas petitioner had a

reasonable probability of prevailing on appeal, a

reviewing court necessarily analyzes the merits of the

underlying claimed error in accordance with the appropriate appellate standard for measuring harm.’’ Small

v. Commissioner of Correction, supra, 722.

The petitioner argues that his appellate counsel provided ineffective assistance by bringing four relatively

weak claims on direct appeal and failing to raise a

relatively stronger claim that there was insufficient evidence to support the petitioner’s conviction of

attempted murder. The respondent, the Commissioner

of Correction, argues that the court properly denied the

petitioner’s claim of ineffective assistance of appellate

counsel because (1) the petitioner failed to present the

testimony of his appellate counsel at the habeas trial;

(2) the petitioner failed to offer into evidence in the

habeas trial the entire evidentiary record from the trial

on his underlying convictions; and (3) on the merits,

there was sufficient evidence supporting the petitioner’s conviction of attempted murder; thus, his ineffective assistance of counsel claim would have failed in

any event. We conclude that the habeas court did not

have an adequate record on which to address the petitioner’s claim of ineffective assistance of appellate

counsel.

The petitioner did not present, as exhibits in the

habeas trial, the full record of the criminal trial. Evidence admitted in the underlying criminal case such as

letters from the petitioner to Marra, a letter from Marra

to the petitioner, and an address book seized from the

petitioner’s house were not offered as exhibits at the

habeas trial.2 To consider properly a claim that appellate

counsel provided ineffective assistance by failing to

raise a sufficiency of the evidence claim on direct

appeal, the habeas court must, in order to evaluate the

performance and prejudice prongs, assess the strength

of the potential sufficiency claim and examine all the

evidence and reasonable inferences drawn therefrom.

See State v. O’Neil, 65 Conn. App. 145, 152, 782 A.2d 209

(2001) (setting out standard of review for sufficiency

claim), aff’d, 262 Conn. 295, 811 A.2d 1288 (2003); see

also State v. Allan, 311 Conn. 1, 25, 83 A.3d 326 (2014);

State v. Robert H., 273 Conn. 56, 81, 866 A.2d 1255

(2005).
As a logical proposition, it is impossible for a habeas

court to determine that there was a strong claim of

insufficient evidence without having been provided all

of the arguably relevant evidence on the issue in question. If omissions exist, a court3 necessarily must speculate as to what is missing, and whetherit matters. This is

not to suggest that, in all such cases, all of the evidence

submitted in the entire trial must be presented. The

evidence regarding a particular count may constitute

only a small portion of the trial. But if one party contends on review that evidence relevant to a sufficiency

issue was not presented to the habeas court and that

contention is not contradicted, and it is not entirely

clear that there was sufficient evidence to support the

underlying conviction, based on a review of the evidence that was presented, the habeas court does not

have a sufficient record4 on which to decide the claim

of ineffective assistance of appellate counsel. As urged

by the respondent, we conclude, on alternate grounds,

that the habeas court properly denied the petitioner’s

claim of ineffective assistance of appellate counsel.

Because it did not have before it a sufficient record on

which to evaluate the merits of the claim,5

the habeas

court could not properly have addressed that claim.

The judgment is affirmed.

In this opinion the other judges concurred.

1

In accordance with our policy of protecting the privacy interests of the

victims of sexual abuse, we decline to identify the victim or others through

whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

2 The respondent asserted in his brief that these items of relevant evidence

were entered into evidence as exhibits at the criminal trial but not at the

habeas trial. The record in the habeas case confirms that none of these

items were admitted into evidence at the habeas trial. The petitioner agrees

that some of the evidence presented at the criminal trial was not before

the habeas court.

3 The authority cited in this opinion regarding the necessity for inclusion

of all the relevant evidence has been derived from cases on direct appeal

rather than from those seeking collateral relief. When a habeas court is

considering whether a sufficiency claim ought to have been raised, the

necessity of presenting a complete record is especially compelling.

4 We note that this issue was presented to us in the briefing process. Cf.

Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut,

Inc., 311 Conn. 123, 84 A.3d 840 (2014).

5 We need not decide whether testimony by the appellate counsel or an

expert was required in the circumstances of this case.