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VINCENTE ROSA v. COMMISSIONER OF

CORRECTION

(AC 37573)

Lavine, Mullins and Harper, Js.

Argued September 20, 2016—officially released March 14, 2017

(Appeal from Superior Court, judicial district of

Tolland, Cobb, J.)

David B. Rozwaski, assigned counsel, for the appellant (petitioner).

Timothy J. Sugrue, assistant state’s attorney, with

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

attorney, for the appellee (respondent).
Opinion

HARPER, J. The petitioner, Vincente Rosa, appeals

following the denial of his petition for a writ of habeas

corpus. The habeas court granted certification to appeal

on the petitioner’s claims that it improperly concluded

that his criminal trial counsel, Bruce Lorenzen, did not

provide ineffective assistance of counsel by failing (1)

to adequately advise the petitioner regarding plea

offers, (2) to move for a mistrial regarding potential

juror bias, and (3) to prepare and adequately argue for

sentence mitigation with testimony from petitioner’s

family. After reviewing the petitioner’s brief, we conclude that the petitioner has failed to brief adequately

the first and third issues and, accordingly, we decline

to review these claims.1 Regarding the petitioner’s

remaining claim, we conclude that the court properly

determined that the petitioner’s counsel did not provide

ineffective assistance, and, accordingly, we affirm the

judgment of the habeas court.

The following facts found by the habeas court and

procedural history are relevant to our resolution of the

petitioner’s claims.2 The petitioner’s conviction arises

from events that occurred on December 23, 2002, during

which he fatally shot Orlando Ocasio in what can be

fairly described as a drug deal gone wrong. State v.

Rosa, 104 Conn. App. 374, 375, 933 A.2d 731 (2007),

cert. denied, 286 Conn. 906, 944 A.2d 980 (2008). The

petitioner was arrested for this killing on or about

December 27, 2002. He was charged with murder in

violation of General Statues § 53a-54a, felony murder

in violation of General Statutes § 53a-54c, criminal use

of a firearm in violation of General Statutes § 53a-216,

and criminal possession of a firearm in violation of

General Statutes § 53a-217. The principal evidence

against the petitioner was his confession to shooting

the victim.

The petitioner elected a trial by jury. During deliberations on March 16, 2005, the jury sent a note to the court

in which the members of the jury expressed concern for

their safety. The note was not entered into evidence at

the habeas proceeding; however, the transcript containing the trial court’s discussion of this note with the

parties is a part of the habeas record. The trial court

stated that ‘‘most of the jurors feel that if they deliver

an unfavorable verdict towards the [petitioner], that the

family may have—whatever—retribution as we exit the

court property. Every time we have left, [the petitioner’s] family has been outside the lobby of the courthouse. They also expressed they haven’t bothered

anybody.’’ After discussing the jury’s note with the parties, the trial court addressed the jury on the record

and attempted to assuage their fears by explaining that

the court had never seen an incident of violence against

a juror in more than thirty years in criminal court. The

jury also was told that if a serious safety concern arose,
the state would provide judicial marshals as escorts

and ‘‘whatever precautions that [the jurors] feel are

necessary.’’ At no time during these events did Lorenzen

move for a mistrial on the ground that the jury’s note

indicated potential juror bias.

Thereafter, on March 17, 2005, the jury found the

petitioner guilty of felony murder and criminal use of

a firearm, and the court found him guilty of criminal

possession of a firearm. On June 3, 2005, he was sentenced to a total effective sentence of fifty-four years

of incarceration.3

On February 14, 2014, the petitioner filed the operative petition for a writ of habeas corpus alleging, as is

relevant here,4

that Lorenzen’s deficient performance

in failing to move for a mistrial based on juror bias

deprived the petitioner of his right to the effective assistance of counsel under Strickland v. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),

and its progeny. At the habeas trial, the petitioner presented the testimony of, among others, Lorenzen. The

habeas court’s factual findings regarding this claim

expressly were tied to its credibility determination of

Lorenzen’s testimony. In particular, the habeas court

found that ‘‘the credible evidence produced at trial

established that . . . Lorenzen’s decision not to move

for a mistrial after the jurors’ note was a tactical decision.’’ The court credited Lorenzen’s testimony that he

believed that there was a possibility that the petitioner

might win an acquittal from this particular jury, and he

wished to protect that chance by not seeking a mistrial.

The habeas court noted that this is the type of strategic

decision that reviewing courts are reluctant to secondguess. Finally, the court also concluded that the petitionerfailed to prove that there was a reasonable probability that a motion for a mistrial would have been

granted. Forthese reasons, the court denied the petition

on December 5, 2014.

On December 19, 2014, the habeas court granted the

petition for certification to appeal from the denial of

the petition for a writ of habeas corpus. In this appeal,

the petitioner contends that the habeas court erred in

concluding that trial counsel did not perform deficiently

in that Lorenzen made a sound strategic decision not

to seek a mistrial when the jurors had expressed concerns for their safety in rendering a verdict against

the petitioner. He argues, in essence, that the state’s

evidence against the petitioner was so strong that the

habeas court should not have credited Lorenzen’s testimony that he believed an acquittal was possible with

this jury and that he chose not to seek a mistrial in

order to preserve the chance of receiving an acquittal

from this jury.5 We disagree.

‘‘It is well settled that in reviewing the denial of a

habeas petition alleging the ineffective assistance of

counsel, [t]his 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.)

Gerald W. v. Commissioner of Correction, 169 Conn.

App. 456, 465, A.3d (2016).

Itis well settled that‘‘[i]n orderto establish an ineffective assistance of counsel claim a petitioner must meet

the two-pronged test enunciated in Strickland v. Washington, [supra, 466 U.S. 687]. Specifically, the 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. . . . Because both prongs of

Strickland must be demonstrated for the petitioner to

prevail, failure to prove either prong is fatal to an ineffective assistance claim.’’(Emphasis in original; internal

quotation marks omitted.) Robinson v. Commissioner

of Correction, 167 Conn. App. 809, 817, 144 A.3d 493,

cert. denied, 323 Conn. 925, 149 A.3d 982 (2016).

‘‘A finding of fact is clearly erroneous when there is

no evidence in the record to support it . . . or when

although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite and

firm conviction that a mistake has been committed.’’

(Internal quotation marks omitted.) Newland v. Commissioner of Correction, 322 Conn. 664, 706, 142 A.3d

1095 (2016). ‘‘It is not enough to merely point to evidence in the record that contradicts the court’s findings.’’ Marquez v. Commissioner of Correction, 170

Conn. App. 231, 238, A.3d (2017).

The petitioner argues that it was improper for the

habeas court to conclude that failing to move for a

mistrial was a sound strategic decision and not deficient

performance. The petitioner asserts that the state’s case

was so strong that it was doubtful the jury could acquit

the petitioner. Because this verdict was so unlikely, the

petitioner asserts it could not have been a sound tactical

decision to choose not to make a meritorious motion

for a mistrial out of a desire to protect this remote

possibility. We find this argument unpersuasive, particularly in light of the fact that the petitioner actually

was acquitted of the murder charge.

The petitioner fails to address the habeas court’s

express crediting of Lorenzen’s testimony. The petitioner’s argument would require this court to reverse that

credibility determination, which we should not and will

not do. See State v. Francione, 136 Conn. App. 302,

312, 46 A.3d 219 (‘‘[a]n appellate court does not retry

the case or evaluate the credibility of the witnesses’’

[internal quotation marks omitted]), cert. denied, 306
Conn. 903, 52 A.3d 730 (2012). Our review of the habeas

record supports the court’s conclusion that the choice

not to move for a mistrial was a sound tactical decision.

It was a deliberate decision made by Lorenzen after

discussing various strategic options with his cocounsel.

They determined that there remained a possibility that

the jury would acquit the petitioner and sought to avoid

losing that possibility. Instead, as planned, they preserved the issue in a motion for a new trial after the jury

returned a guilty verdict on three of the four charges. We

agree with the habeas court that this process reveals

that ‘‘[t]his decision was strategic in nature,’’ and that it

was the result of the exercise ofreasonable professional

judgment, which we decline to second-guess.6 See

Smith v. Commissioner of Correction, 148 Conn. App.

517, 531, 85 A.3d 1199 (reviewing courts do not, with

benefit of hindsight, second-guess tactical and strategic

decisions of counsel arrived at with benefit of experience, deliberation, and professional judgment), cert.

denied, 312 Conn. 901, 91 A.3d 908 (2014).

For the foregoing reasons, we conclude that the

habeas court properly denied the petition for a writ of

habeas corpus because the petitioner failed to establish

that Lorenzen performed deficiently.

The judgment is affirmed.

In this opinion the other judges concurred.

1

‘‘[A] claim must be raised and briefed adequately in a party’s principal

brief, and the failure to do so constitutes the abandonment of the claim.’’

State v. Elson, 311 Conn. 726, 766, 91 A.3d 862 (2014). In addressing his

first claim, that counsel failed to adequately advise him regarding sentencing,

the petitioner fails to attack, as he must, the factual findings of the habeas

court on which its decision rested. Rather, he states in conclusory fashion

that those findings are ‘‘incorrect.’’ He proceeds to argue the issue by citing

only to evidence the court found incredible without addressing this credibility determination, which is beyond our review. See State v. Francione, 136

Conn. App. 302, 312, 46 A.3d 219 (‘‘[a]n appellate court does not retry the

case or evaluate the credibility of the witnesses’’ [internal quotation marks

omitted]), cert. denied, 306 Conn. 903, 52 A.2d 730 (2012). Moreover, it is

not enough merely to point to evidence in the record that contradicts the

court’s findings when other evidence in the record supports the court’s

findings. The petitioner must show that a review of the entire record will

leave this court with the definite and firm conviction that a mistake has

been committed. See State v. Krijger, 313 Conn. 434, 446, 97 A.3d 946 (2014).

Turning to his third claim, that the failure to present the testimony of the

petitioner’s family at sentencing was deficient performance, we similarly

decline to review the claim for failure to brief the claim adequately. The

petitioner claims that the testimony of his family members would have been

beneficial to the petitioner because those relatives could have provided

more accurate information about the petitioner, including details of his

alleged learning disabilities. Nevertheless, he fails to attack the dispositive

finding of the habeas court that the petitioner failed to present any credible

evidence in support of his claim. Without attacking this finding, the petitioner

cannot prevail on this claim.

2 This court’s opinion in the petitioner’s direct appeal provides a full

exposition of the facts that the jury reasonably could have found at the

criminal trial. See State v. Rosa, 104 Conn. App. 374, 375, 933 A.2d 731 (2007),

cert. denied, 286 Conn. 906, 944 A.2d 980 (2008). Much of this information is

not relevant to the narrow issue before the court here.

3 The petitioner’s sentence consisted of fifty-two years of incarceration on

the felony murder conviction to be followed consecutively by two concurrent

sentences of two years each for the criminal use of a firearm and criminal

possession of a firearm convictions.
4 The petition contained numerous other claims that were either withdrawn prior to the habeas trial, are not raised in this appeal, or were

raised but which we have declined to review due to inadequate briefing.

See footnote 1 of this opinion.

5 Within the petitioner’s briefing of his mistrial claim, he appears to include

a claim that Lorenzen was prejudicially deficient in failing to voir dire the

jury to determine the extent of any bias after the jury sent its note to the

trial court. This is a distinct claim from the petitioner’s mistrial claim and

was neither raised in the operative habeas petition nor ruled on by the

habeas court. ‘‘A reviewing court will not consider claims not raised in the

habeas petition or decided by the habeas court.’’ Henderson v. Commissioner of Correction, 129 Conn. App. 188, 198, 19 A.3d 795, cert. denied,

303 Conn. 901, 31 A.3d 1177 (2011). Accordingly, to the extent petitioner

intended to raise this claim here, we decline to review it.

6 We need not reach the question of whether the petitioner suffered prejudice because the failure to prove either prong of the Strickland standard

is determinative of the petitioner’s ineffective assistance of counsel claim.

See Jones v. Commissioner of Correction, 152 Conn. App. 110, 115, 96 A.3d

1271, cert. denied, 314 Conn. 931, 102 A.3d 83 (2014).