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*********************************************** 
FRANCIS ANDERSON v. COMMISSIONER

OF CORRECTION

(AC 42032)

Alvord, Elgo and Cradle, Js.

Syllabus

The petitioner, who had been convicted of assault of a peace officer while

incarcerated, sought a writ of habeas corpus, claiming that his trial

counsel had rendered ineffective assistance by failing to adequately

investigate his case, failing to explain to him the strengths and weaknesses of his case and failing to meaningfully explain the plea offers

made to him and the likely range of sentences that he faced. The habeas

court rendered judgment denying the petition, concluding, inter alia, that

the petitioner had failed to prove that his trial counsel’s representation

of him was deficient or that he was prejudiced by this alleged deficiency.

Thereafter, the habeas court granted the petition for certification to

appeal, and the petitioner appealed to this court. On appeal, the petitioner claimed that the habeas court incorrectly concluded that his trial

counsel did not provide ineffective assistance by failing to pursue a

defense of lack of capacity due to mental disease or defect. Held that

the judgment of the habeas court denying the petition for a writ of habeas

corpus was affirmed; the habeas court having thoroughly addressed the

petitioner’s argument raised in this appeal, this court adopted the habeas

court’s well reasoned decision as a proper statement of the relevant

facts, issues and the applicable law on those issues.

Argued February 9—officially released June 8, 2021

Procedural History

Amended petition for a writ of habeas corpus,

brought to the Superior Court in the judicial district of

Tolland and tried to the court, Farley, J.; judgment

denying the petition, from which the petitioner, on the

granting of certification, appealed to this court.

Affirmed.

James P. Sexton, assigned counsel, with whom, on

the brief, were Megan L. Wade and Meryl R. Gersz,

assigned counsel, for the appellant (petitioner).

Nancy L. Chupak, senior assistant state’s attorney,

with whom, on the brief, were Matthew C. Gedansky,

state’s attorney, and Jaclyn Preville Delude, supervisory assistant state’s attorney, for the appellee (respondent).
Opinion

CRADLE, J. The petitioner, Francis Anderson,

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 incorrectly

concluded that his trial counsel did not provide ineffective assistance by failing to pursue a defense of lack

of capacity due to mental disease or defect (lack of

capacity). We affirm the judgment of the habeas court.1

On March 3, 2011, the petitioner pleaded guilty to

two counts of assault of a peace officer in violation of

General Statutes (Rev. to 2009) § 53a-167c. The petitioner’s conviction resulted from events that transpired on

September 30, 2009, when the petitioner, while serving

a prior sentence, assaulted two officers from the

Department of Correction. The trial court, Hon. Terence

A. Sullivan, judge trial referee, sentenced the petitioner

to a total effective sentence of five years of incarceration, to be served consecutively to any previous sentence he already was serving.

On February 19, 2013, the petitioner filed an amended

petition for a writ of habeas corpus.2

In his amended

petition, the petitioner claimed that his trial counsel,

Douglas Ovian, provided ineffective assistance by failing to adequately investigate his case, failing to explain

to him the strengths and weaknesses of his case and

failing to meaningfully explain the plea offers made to

him and the likely range of sentences that he faced.

On July 25, 2018, following a three day trial and the

filing of posttrial briefs by the parties, the habeas court,

Farley, J., issued a memorandum of decision in which

it concluded that the petitioner failed to prove that

Ovian’s representation of him was deficient or that he

was prejudiced by this alleged deficiency. In so concluding, the habeas court began by noting that ‘‘[t]he petitioner’s case, as presented at trial and in his posttrial

brief, focuses specifically upon his attorney’s failure to

adequately explore and explain a potential defense of

lack of capacity, as an alternative to his guilty pleas,

and to otherwise provide an effective defense based on

the petitioner’s mental health issues.’’ The court then

set forth the following relevant facts. ‘‘[The petitioner]

has a long history of violent behavior and mental illness.

In the underlying case, [the petitioner] was charged

with assaulting two correctional officers when they

entered his cell immediately after having, in [the petitioner’s] opinion, mistreated another inmate with mental illness. This was not the first such occasion. [The

petitioner] has a long history of assaults against correctional officers and others. His psychological issues and

behavioral problems date back to his childhood and he

has been in and out of correctional facilities since his

youth. The incident underlying the conviction that is the

subject of this habeas petition occurred in September,
2009, at Northern Correctional Institution. [The petitioner] was charged with two counts of assault [of a

peace officer] in violation of General Statutes (Rev. to

2009) § 53a-167c, class C felonies, as well as an infraction for failure to comply with fingerprinting [requirements] in violation of General Statutes § 29-17. The

felony counts exposed him to up to twenty years of

incarceration and any sentence was required by statute

to run consecutively to the sentence he was serving at

the time. Subsequently, accounting for his prior history,

the state filed [a] part B [information] charging [the

petitioner] as a persistent felony offender in violation

of General Statutes § 53a-40 (g) and as a persistent

serious felony offender in violation of General Statutes

§ 53a-40 (c). These additional charges increased [the

petitioner’s] exposure to up to forty years of incarceration. On March 3, 2011, after a jury had been selected,

[the petitioner] pleaded guilty to the two assault counts

under an open plea, the state having agreed to drop the

part B counts in exchange for the guilty plea. Thus, at

sentencing [the petitioner] faced a total exposure of

twenty years. He was sentenced to five years to serve

on each of the two counts, to run concurrently with

each other and consecutive to the sentence he was then

serving. . . .

‘‘Following [the petitioner’s] arraignment on the original charges . . . Ovian was assigned to represent him.

At the time . . . Ovian had over twenty years of experience with the Division of Public Defender Services and

had served as a public defender in the Tolland judicial

district for over three years. [The petitioner] made

numerous appearances in court prior to trial. . . .

Ovian met with [the petitioner] on these occasions and

had the opportunity to explore at length with him the

underlying events and his criminal and psychological

history. . . . Ovian directed his staff to compile a

record of [the petitioner’s] mental health history and

treatment and to prepare a summary of that history, as

well as [the petitioner’s] criminal history. Extensive

records were obtained, dating back to a psychological

evaluation performed by . . . Donald Grayson in 2000,

which in turn reviewed [the petitioner’s] prior records.

It is not clear, however, that . . . Ovian had the

entirety of [the petitioner’s] mental health records, in

particular a 1982 report from Riverview School prepared when [the petitioner] was twelve years old,

records from a prior commitment to [what is now]

Whiting Forensic [Hospital (Whiting)] in 2005, and some

community treatment in 2007. The summary prepared

for . . . Ovian, however, does reference the 2005

admission to Whiting, as well as [the petitioner’s] childhood history.

‘‘Over the course of the pretrial proceedings in the

case . . . Ovian regularly discussed [the petitioner’s]

mental health issues with him and how those issues

might relate to a defense strategy in the case. These
discussions included a ‘colloquial’ discussion of a potential lack of capacity defense. By ‘colloquial’ . . . Ovian

means a discussion in layman’s terms, as distinguished

from a technical, legal discussion. The petitioner makes

much of the fact that . . . Ovian does not have written

notes concerning the discussion of a lack of capacity

defense with him. . . . Ovian, however, freely

acknowledged areas of his recollection that were

unclear and deferred to [the petitioner’s] recollection

on occasion. He was very clear in recalling that he

did address the subject of a potential lack of capacity

defense with [the petitioner] and the court credits his

testimony on that point despite [the petitioner’s] contradictory testimony. It is [the petitioner’s] testimony the

court finds is not credible. According to [the petitioner]

. . . Ovian never discussed the following subjects with

him: the facts of the case; the strengths and weaknesses

of the case; the minimum and maximum penalties he

faced; a plea offer from the state of eighteen months

to serve; the option of a court trial rather than a jury

trial; and a potential lack of capacity defense. [The

petitioner] does acknowledge that he discussed his

mental health issues with . . . Ovian, but he maintains

that . . . Ovian ignored those issues. The court does

not find [the petitioner’s] testimony concerning how

. . . Ovian conducted the defense and the nature of

his dealings with . . . Ovian to be credible.

‘‘Following his initial meetings with [the petitioner]

and the review of his mental health history . . . Ovian

was of the view that a lack of capacity defense was not

a viable option for [the petitioner]. The history reflected

diagnoses of post-traumatic stress disorder [PTSD], personality disorder, borderline intellectual functioning

and substance abuse. Despite the extensive mental

health history, however, it was . . . Ovian’s view that

the facts did not support a claim that [the petitioner]

lacked the capacity either to appreciate the wrongfulness of his conduct or to control his conduct within

the requirements of the law. In addition to his assessment that a lack of capacity defense was not viable

. . . Ovian also considered the pursuit of that defense

as strategically unsound because it would potentially

expose [the petitioner] to a period of confinement significantly longer than what could be negotiated in a

plea agreement with the state. . . . Ovian raised the

subject of [the petitioner’s] extensive mental health history with the state in plea negotiations. At one point

. . . Ovian obtained a plea offer from the state that

would have resulted in an agreed upon sentence of

eighteen months to serve. [The petitioner], however,

rejected that offer.

‘‘[Ovian] discussed the merits of a lack of capacity

defense, in addition to the strategic disadvantages of

pursuing that defense, with [the petitioner]. He also

checked his own opinion of the merits of such a defense

by obtaining an expert opinion on the issue. At the time
of jury selection . . . Ovian referred [the petitioner] to

. . . Kenneth Selig, a psychiatrist and an attorney, for

evaluation. . . . Ovian testified that, among other

things, he discussed the viability of a lack of capacity

defense with . . . Selig and, based on that discussion,

reaffirmed his view that it was not a viable defense for

[the petitioner]. . . . Ovian relayed that opinion to [the

petitioner]. [The petitioner] denies ever meeting with

. . . Selig, but the transcripts of the proceedings in

the underlying case are consistent with the facts as

described by . . . Ovian and include references to the

lack of capacity issue.

‘‘[The petitioner’s] chief concern throughout . . .

Ovian’s representation was the inadequate mental

health care he received as an inmate. This became a

focus of the defense strategy in the case, particularly

after a video of the underlying events undermined [the

petitioner’s] claim of self-defense. As the trial

approached . . . Ovian pursued a strategy he hoped

would limit the potential period during which [the petitioner] would be confined and at the same time raise

the possibility that the nature of his confinement would

be substantially the same as if he had successfully pursued a lack of capacity defense. To this end . . . Ovian’s referral to . . . Selig was aimed at determining

whether there were any undiagnosed mental health conditions applicable to [the petitioner] that should be

weighed in his sentencing. . . . That effort was

unavailing. [Ovian] persisted, however, and negotiated

an open plea agreement on the assault charges, subject

to the state’s further agreement that [the petitioner]

would be referred for a psychiatric examination pursuant to General Statutes § 17a-566.3 That process opened

up the prospect that [the petitioner] could plead guilty,

cap his exposure to incarceration and still be held in

the custody of the Department of Mental Health and

Addiction Services at [Whiting]. Despite [the petitioner’s] claim to the contrary, the court finds that . . .

Ovian explained this strategy and this process to [the

petitioner] and informed him that the results of the

§ 17a-566 examination were uncertain.

‘‘On March 3, 2011, [the petitioner] pleaded guilty

under the Alford doctrine4 pursuant to the plea agreement negotiated by . . . Ovian. He was thoroughly canvassed by the court and then referred for an initial

examination pursuant to § 17a-566. In advance of the

examination, [the petitioner] took issue with one of the

examiners assigned to the matter, claiming that she had

a bias against him. . . . Ovian looked into that claim,

which was counter to his own experience with the

examiner, by speaking with her and becoming assured

it would not be an issue. The examiners concluded,

however, that despite [the petitioner’s] extensive history of mental illness and behavioral difficulties, he

could be treated appropriately by the Department of

Correction and no referral to [Whiting] was recom-
mended. This conclusion was consistent with the opinion expressed orally to . . . Ovian by . . . Selig. [The

petitioner] took issue with the results of the examination but, because they were consistent with . . . Selig’s

conclusions . . . Ovian did not challenge them. Rather

than antagonize the state with a request for a continuance and the retention of yet another expert, which

. . . Ovian believed might negatively impact the state’s

position at sentencing . . . Ovian proceeded with the

presentence investigation process and sentencing,

where the court would have access to the § 17a-566

report and additional background information. The

transcript of the sentencing hearing reflects the fact

that the court had been provided with the available

mental health information, including the § 17a-566

report, that detailed [the petitioner’s] childhood abuse,

troubled past and extensive psychiatric history. . . .

Ovian leaned on those materials in presenting his argument to the court and even invited the court to order

further examination of [the petitioner], despite the recommendations in the § 17a-566 report. The court’s

remarks reflect that these issues were considered by

the court in deciding upon a sentence.

‘‘After disposition of the 2009 case, [the petitioner]

was again charged with assaulting a correction officer

in July, 2012. Attorney Cynthia Love represented [the

petitioner] on that charge, which was prosecuted in

Norwich. . . . Love referred [the petitioner] for evaluation by . . . Andrew Meisler, a clinical and forensic

psychologist. Meisler authored a report dated February

13, 2013, offering his opinions on [the petitioner’s] mental condition and the factors that contributed to the

2012 incident. In addition to [the petitioner’s] prior diagnoses . . . Meisler diagnosed [the petitioner] with

‘[c]omplex PTSD’ which, as he explained at trial in

this case, is a diagnosis that has been considered for

recognition but is not currently recognized by the Diagnostic and Statistical Manual of Mental Disorders (DSM5). It distinguishes a subset of individuals with PTSD

who, based on the nature of their underlying trauma,

suffer ‘much greater disruptions in relationship to others, self-regulation . . . .’ In the case of [the petitioner]

. . . Meisler’s opinion is that certain triggers in his environment cause [the petitioner] to lose the ability to

control his behavior. . . . Meisler perceives a pattern

of events that lead [the petitioner] into a violent incident, including a change in his surroundings combined

with a decrease or elimination of medication therapy

and a circumstance in which [the petitioner] perceives

a threat that triggers an impulsive, violent reaction.

’’With . . . Meisler’s support, [the petitioner] went

to trial on the 2012 charges and was acquitted on a

lack of capacity defense in July, 2013. . . . Meisler was

subsequently disclosed as an expert in this case. Pointing out that the 2009 incident followed a transfer of

[the petitioner] to Northern Correctional Institution,
what . . . Meisler views as a ‘negative assessment by

psychiatric staff at Northern [Correctional Institution]’

and a discontinuance of medications . . . Meisler

believes [that the petitioner] was destabilized at the

time of the 2009 incident as well. In response to what

[the petitioner] perceived to be unfair treatment of

another inmate by correction officers . . . Meisler

opines that when [the petitioner] assaulted the correction officers in 2009, he was ‘suffering from acute mental

illness with marked impairments in emotional regulation and impulse control that prevented him from controlling his behavior in accordance with the law.’ ’’

(Footnotes added and omitted.)

With that factual underlayment, the court then

addressed the petitioner’s claim that Ovian’s representation of him was constitutionally deficient because he

failed to present a lack of capacity defense.5 The court

reasoned: ‘‘The outcome of [the petitioner’s] trial arising

out of the 2012 charge of assaulting a correction officer

unavoidably enhances the effect of hindsight on the

defense strategy pursued by . . . Ovian in connection

with the 2009 charges. It is essential, therefore, to

emphasize that the court has a responsibility in this

case to reconstruct the circumstances as they were

presented to . . . Ovian and to evaluate the representation he provided from his perspective at the time, not

through the prism of hindsight. While . . . Ovian did

not consider a lack of capacity defense viable on its

merits, he also perceived it as potentially counterproductive. With charges pending that exposed [the petitioner] to forty years of incarceration, a successful lack

of capacity defense would nevertheless have left [the

petitioner] at risk of being confined for a very long

time, subject to future determinations concerning his

eligibility for release. See General Statutes § 17a-580 et

seq. This prospect stood in contrast to the period of

confinement under consideration by the state in plea

negotiations, as little as eighteen months at one point.

. . . Ovian discussed this strategic consideration with

[the petitioner], in addition to the merits of a lack of

capacity defense. . . .

‘‘Meisler’s testimony in this case establishes, to the

court’s satisfaction, that a plausible defense of lack of

capacity could have been developed and pursued by

. . . Ovian. Given the serious and persistent mental

health issues exhibited by [the petitioner], and the correlation between those issues and his violent behavior,

it was something to consider and the court finds . . .

Ovian took the initial steps to look into that defense.

Having done so, it was incumbent upon him to obtain

a complete mental health history and to obtain a thoroughly informed expert opinion on how [the petitioner’s] mental health issues might impact his defense.

Having recognized that responsibility . . . Ovian did

not carry it out completely. He delegated the task of

obtaining the complete history and did not ensure that
task had been properly completed. He recognized the

need to consult with an expert early on in the case, but

did not do so until the time of jury selection. To the

extent that his performance is subject to criticism, these

are the principal considerations.’’

The habeas court analogized the factual circumstances in this case to those presented in this court’s

earlier decision in Ramos v. Commissioner of Correction, 172 Conn. App. 282, 159 A.3d 1174, cert. denied,

327 Conn. 904, 170 A.3d 1 (2017). The court explained

that, in Ramos, the petitioner’s counsel had ‘‘requested

his medical records from the Department of Correction

. . . and, upon receipt, forwarded them to . . . Peter

Zelman, a forensic psychiatrist. The records obtained

from [the Department of Correction], however,

belonged to another inmate with the same name but

with far fewer psychiatric issues and a much less severe

drug history than the petitioner. This error was not

discovered by [the petitioner’s counsel] during her representation of the petitioner. The habeas petition

alleged [the petitioner’s counsel] rendered ineffective

assistance based on her failure to ensure that the

records relied upon by . . . Zelman were accurate. The

court agreed that counsel had fallen short of her responsibilities because she had ‘assumed an obligation to

conduct her investigation in a constitutionally adequate

manner, which required her to obtain and furnish accurate medical information to the expert with whom she

consulted . . . so that the expert’s opinion would be

well-grounded and she could appropriately rely upon

it in developing her case strategy and advising her client

whether to go to trial.’ Id., 300–301.’’

With Ramos in mind, the habeas court reasoned:

‘‘Like [the petitioner’s counsel in Ramos] . . . Ovian

erred by not ensuring that his office had obtained a

complete set of [the petitioner’s] mental health records.

It was not his intention to do anything less than that

and he relied on his staff to complete that task, but still

it remained his responsibility.’’6

The court continued: ‘‘The court’s analysis of . . .

Ovian’s performance is complicated by the fact that

there was a substantial strategic consideration overlaying the incomplete investigation of a defense based on

lack of capacity. Even if . . . Ovian had determined

that a lack of capacity defense was conceivable, it was

also his view that pursuing that defense was not the

wisest strategy, given the difference between [the petitioner’s] exposure and the prison time being contemplated in plea negotiations. [Ovian] believed that [the

petitioner’s] mental health issues could be put to better

use in attempting to negotiate a plea agreement that

would limit the length of [the petitioner’s] confinement

and also create an opportunity to argue that [the petitioner] should be confined at Whiting. That is the strategy he discussed with [the petitioner] extensively and
the one that ultimately played out at the time of the

plea and sentencing. . . .

‘‘First, the court does not agree that . . . Ovian’s

pursuit of a mitigation strategy on the basis of [the

petitioner’s] mental health problems, rather than a lack

of capacity defense, was deficient. This was a strategic

decision, explained in detail to [the petitioner], which

was not principally based upon the merits of a potential

lack of capacity defense, but rather a strategy that . . .

Ovian believed was in [the petitioner’s] overall best

interests. ‘[T]o establish deficient performance by counsel, a defendant must show that, considering all of the

circumstances, counsel’s representation fell below an

objective standard of reasonableness as measured by

prevailing professional norms . . . . Moreover, strategic decisions of counsel, although not entirely immune

from review, are entitled to substantial deference by

the court.’ . . . Skakel v. Commissioner of Correction,

329 Conn. 1, 31, [188 A.3d 1] (2018), [cert. denied,

U.S. , 139 S. Ct. 788, 202 L. Ed. 2d 569 (2019)]. While

strategic decisions do not excuse inadequate investigations, ‘strategic choices made after less than complete

investigation are reasonable precisely to the extent that

reasonable professional judgments support the limitations on investigation.’ Id., 32, quoting Strickland v.

Washington, [466 U.S. 668, 690–91, 104 S. Ct. 2052, 80

L. Ed. 2d 674 (1984)]. In this case, based on the totality

of the circumstances, the court concludes that . . .

Ovian’s decision to pursue a mitigation strategy met

the standard of objective reasonableness, even though

he and . . . Selig did not have a complete set of [the

petitioner’s] mental health records. They both did have

access to . . . Grayson’s 2000 evaluation, which . . .

Meisler himself characterized as ‘a thorough record

review and evaluation,’ as well as [the petitioner’s]

extensive, more recent records from [the Department of

Correction]. Whatever information the missing records

might have added, the court concludes they would not

have changed . . . Ovian’s strategy, which was based

upon his perception that it was not in [the petitioner’s]

best interests to pursue a lack of capacity defense.

That was a strategic decision entitled to substantial

deference. See Pladsen v. Commissioner of Correction,

96 Conn. App. 849, [850–51], 902 A.2d 704 (2006) (same

strategy pursued by . . . Ovian was not ineffective

assistance of counsel).’’7

(Citations omitted.)

On the basis of the foregoing, the court concluded: ‘‘In

sum, while . . . Ovian’s performance may be subject

to some legitimate criticism relating to the failure to

obtain a complete medical history . . . in the totality of

the circumstances these shortcomings do not constitute

‘errors so serious that counsel was not functioning as

the ‘counsel’ guaranteed the defendant by the [s]ixth

[a]mendment.’ Skakel v. Commissioner of Correction,

supra, 329 Conn. 30, quoting Strickland v. Washington,

[supra] 466 U.S. 687.’’ The court also concluded that
the petitioner failed to prove that he was prejudiced

by Ovian’s allegedly deficient representation of him.

Accordingly, the court denied the petition for a writ of

habeas corpus. The court thereafter granted the petitioner’s petition for certification to appeal, and this

appeal followed.

The standard of review in a habeas corpus proceeding

challenging the effective assistance of trial counsel is

well settled. ‘‘To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the

two-pronged test articulated in Strickland v. Washington, [supra, 466 U.S. 687]. Strickland requires that a

petitioner satisfy both a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel

guaranteed . . . by the [s]ixth [a]mendment. . . . To

satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the

proceeding would have been different. . . . Because

both prongs . . . must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s

claim if he fails to meet either prong. . . .

‘‘On appeal, [a]lthough the underlying historical facts

found by the habeas court may not be disturbed unless

they [are] clearly erroneous, whether those facts constituted a violation of the petitioner’s rights [to the effective assistance of counsel] under the sixth amendment

is a mixed determination of law and fact that requires

the application of legal principles to the historical facts

of [the] case. . . . As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.’’ (Citations omitted; internal quotation

marks omitted.) Jordan v. Commissioner of Correction, 197 Conn. App. 822, 830–31, 234 A.3d 78, cert.

granted, 335 Conn. 931, 236 A.3d 218 (2020).

On appeal, the petitioner claims that the habeas court

erred in rejecting his claim that Ovian rendered ineffective assistance of counsel by failing to pursue a lack of

capacity defense. Specifically, the petitioner claims that

the habeas court erred in concluding that Ovian’s representation was not deficient because it erroneously

assumed that Ovian would still have pursued a mitigation strategy, versus a lack of capacity defense, if he

had obtained all of the petitioner’s medical records,

and his trial strategy did not advance the petitioner’s

litigation objective, which, in this case, was to obtain

mental health treatment at Whiting.

We have examined the record on appeal, the briefs

and arguments of the parties, and conclude that the

judgment of the habeas court, Farley, J., should be

affirmed. Because the habeas court thoroughly

addressed the petitioner’s argument raised in this

appeal that Ovian’s representation of him was constitu-
tionally deficient, we adopt its well reasoned decision,

as quoted at length herein, as a proper statement of

both the facts and the applicable law on that issue. Any

further discussion by this court would serve no useful

purpose. See, e.g., Woodruff v. Hemingway, 297 Conn.

317, 321, 2 A.3d 857 (2010); Brander v. Stoddard, 173

Conn. App. 730, 732, 164 A.3d 889, cert. denied, 327

Conn. 928, 171 A.3d 456 (2017).

The judgment is affirmed.

In this opinion the other judges concurred.

1 The petitioner also challenges the habeas court’s determination that he

failed to prove that he was prejudiced by his counsel’s representation of

him. Because we conclude that the habeas court correctly determined that

his counsel’s performance was not constitutionally deficient, we do not

reach the petitioner’s prejudice claim. See, e.g., Sanchez v. Commissioner

of Correction, 314 Conn. 585, 606, 103 A.3d 954 (2014) (reviewing court

can find against petitioner on either performance or prejudice prong of

ineffective assistance of counsel claim).

2 The petitioner initially filed a petition for a writ of habeas corpus on

May 19, 2011.

3 General Statutes § 17a-566 provides in relevant part: ‘‘(a) Except as

provided in section 17a-574 any court prior to sentencing a person convicted

of an offense for which the penalty may be imprisonment in the Connecticut

Correctional Institution at Somers . . . may if it appears to the court that

such person has psychiatric disabilities and is dangerous to himself or others,

upon its own motion or upon request of any of the persons enumerated in

subsection (b) of this section and a subsequent finding that such request is

justified, order the commissioner to conduct an examination of the convicted

defendant by qualified personnel of the hospital. Upon completion of such

examination the examiner shall report in writing to the court. Such report

shall indicate whether the convicted defendant should be committed to the

diagnostic unit of the hospital for additional examination or should be

sentenced in accordance with the conviction. . . .

‘‘(b) The request for such examination may be made by the state’s attorney

or assistant state’s attorney who prosecuted the defendant for an offense

specified in this section, or by the defendant or his attorney in his behalf.

. . .’’

In 2018, the statute was amended to replace references to ‘‘division’’ and

‘‘institute’’ with ‘‘hospital’’ to reflect the name change of the Whiting Forensic

Division of Connecticut Valley Hospital, formerly Whiting Forensic Institute,

to Whiting Forensic Hospital.

4

‘‘Under North Carolina v. Alford, [400 U.S. 25, 91 S. Ct. 160, 27 L. Ed.

2d 162 (1970)], a criminal defendant is not required to admit his guilt . . .

but consents to being punished as if he were guilty to avoid the risk of

proceeding to trial. . . . A guilty plea under the Alford doctrine is a judicial

oxymoron in that the defendant does not admit guilt but acknowledges that

the state’s evidence against him is so strong that he is prepared to accept

the entry of a guilty plea nevertheless.’’ (Internal quotation marks omitted.)

State v. Walker, 187 Conn. App. 776, 778 n.2, 204 A.3d 38, cert. denied, 331

Conn. 914, 204 A.3d 703 (2019).

5 The habeas court stated that the petitioner claimed, at trial and in his

posttrial brief, that Ovian’s representation of him was deficient because

Ovian ‘‘conducted the majority of the defense without consulting with an

expert regarding a potential lack of capacity defense, waiting until the eve

of trial to retain . . . Selig; failed to properly supervise his staff charged

with the responsibility to compile the records of [the petitioner’s] mental

health history; failed to obtain all the mental health records and provide

them to . . . Selig; failed to keep [the petitioner] informed and failed to

explain to him all potential defenses and the potential mitigating impacts

arising out of his mental health condition; limited the scope of . . . Selig’s

inquiry to what treatment would be appropriate for [the petitioner] were

he to be released to the community; failed to retain an expert and challenge

the recommendations in the § 17a-566 report; failed to make proper use of

the § 17a-566 report and other mental health records at the sentencing

hearing; and failed to maintain thorough notes on all the conversations he

had while conducting [the petitioner’s] defense.’’ Because the petitioner’s

challenge on appeal is focused on Ovian’s failure to obtain all of the petition-
er’s mental health records and to present a lack of capacity defense, we

focus on the portions of the habeas court’s analysis that address those issues.

6 We note that, in Ramos, the habeas court did not find that the petitioner’s

counsel was constitutionally ineffective. This court rejected the petitioner’s

challenge to the habeas court’s judgment in Ramos on the ground that he

failed to satisfy the prejudice prong of his ineffective assistance claim. See

Ramos v. Commissioner of Correction, supra, 172 Conn. App. 301–302. This

court noted, however, that it was ‘‘at least debatable among jurists of reason

whether the making of such a mistake when reviewing critical medical

records that purportedly belong to one’s own client satisfies the minimum

requirements of our state and federal constitutions as to the adequacy of

trial counsel’s performance.’’ Id., 301.

7 We note that Meisler acknowledged that Grayson’s report, which Ovian

had obtained and forwarded to Selig, provided a thorough review of the

petitioner’s mental health history. Therefore, any records obtained by Ovian

pertaining to the time period covered in Grayson’s report would have been

cumulative of the records that Ovian had obtained and given to Selig.