RAFAEL FERNANDEZ v. COMMISSIONER OF CORRECTION, SC 18247

Judicial District of Tolland

 Habeas Corpus; Whether Attorney Rendered Ineffective Assistance of Counsel due to Manner in Which he Withdrew from Petitioner's Criminal Case, Thereby Violating Petitioner's Rights to Counsel and to Counsel of Choice.  The petitioner was charged with murder, felony murder, first degree arson and first degree burglary.  As a result, he privately retained attorney William T. Gerace to represent him. Gerace later met with the trial court judge in chambers without the petitioner present to express his concern over a threatening letter that he received from the petitioner.  The letter, which he allowed the judge to review, caused him to believe that there was an ethical problem in continuing his representation.  Gerace thereafter orally moved, on the record, to withdraw from the case.  He stated that he did not want to put the reason for his motion on the record because it might prejudice the petitioner in his case.  Gerace also stated, inaccurately, that he had filed a corresponding written motion.  The trial court granted the motion to withdraw. The petitioner was subsequently convicted of murder and first degree arson.  The petitioner then brought this habeas corpus action.  Among other things, he alleged that Gerace rendered ineffective assistance of counsel in the manner in which he withdrew as counsel, thereby depriving the petitioner of his constitutional rights to counsel and to counsel of his choice.  Specifically, the petitioner alleged that Gerace improperly failed to discuss with him, or even notify him, of his intention to withdraw.  He further alleged that Gerace improperly failed to file a written motion to withdraw and failed to state a reason in court, and provide good cause, for his oral motion to withdraw.  He also alleged that Gerace improperly failed to return his retainer and failed to make arrangements for replacement counsel.  The petitioner additionally claimed that he should not have to show prejudice because the deprivation of the right to counsel of choice constitutes structural error.  The habeas court denied the petition, finding that there was insufficient evidence that Gerace rendered ineffective assistance of counsel.  The petitioner challenges the habeas court's decision in this appeal before the Supreme Court.