Papantoniou v. Commissioner of Correction

majority opinion

************************************************

The “officially released” date that appears near the

beginning of an opinion is the date the opinion will be

published in the Connecticut Law Journal or the date it

is released as a slip opinion. The operative date for the

beginning of all time periods for the filing of postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.

All opinions are subject to modification and technical

correction prior to official publication in the Connecticut Law Journal and subsequently in the Connecticut

Reports or Connecticut Appellate Reports. In the event

of discrepancies between the advance release version of

an opinion and the version appearing in the Connecticut Law Journal and subsequently in the Connecticut

Reports or Connecticut Appellate Reports, the latest

version is to be considered authoritative.

The syllabus and procedural history accompanying

an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or

Connecticut Appellate Reports are copyrighted by the

Secretary of the State, State of Connecticut, and may

not be reproduced or distributed without the express

written permission of the Commission on Official Legal

Publications, Judicial Branch, State of Connecticut.

************************************************

Page 0 CONNECTICUT LAW JOURNAL 0, 0

2 ,0 0 Conn. App. 1

Papantoniou v. Commissioner of Correction

NICHOLAS J. PAPANTONIOU v. COMMISSIONER

OF CORRECTION

(AC 46189)

Elgo, Seeley and Bishop, Js.

Syllabus

The respondent Commissioner of Correction appealed, on the granting of

certification, from the habeas court’s judgment granting in part the petitioner’s petition for a writ of habeas corpus after concluding that the petitioner’s

sixth amendment right to the effective assistance of counsel had been violated due to an undisclosed, actual conflict of interest on the part of his

criminal defense counsel, G. The respondent claimed, inter alia, that the

court improperly concluded that the petitioner had established that G was

burdened by an actual conflict of interest that adversely affected his representation of the petitioner. Held:

The habeas court’s finding that G simultaneously represented both the petitioner at the time of the petitioner’s criminal trial and S, a witness who

testified on behalf of the state at the petitioner’s criminal trial, was clearly

erroneous, as it was undisputed that another attorney filed an appearance

in place of G in S’s criminal case before the commencement of the petitioner’s

criminal trial, and, thereafter, G did not file any appearances on behalf of

S at any time prior to the conclusion of the petitioner’s trial or his sentencing,

nor was there any documentary or testimonial evidence in the record that

G provided legal representation to S in any court proceeding or otherwise

at the time of the petitioner’s criminal trial.

The habeas court’s finding that G represented S at a hearing six weeks prior

to the start of the petitioner’s criminal trial was clearly erroneous, as the

relevant court files, considered in tandem with the unequivocal statements

that S’s defense counsel had filed an appearance in the unrelated criminal

case, which were included in conflicting transcripts from that hearing, convinced this court that a mistake had been made regarding G’s alleged representation of S at the hearing in question.

The habeas court improperly concluded that G’s representation of S and

the petitioner for four months prior to the start of the petitioner’s criminal

trial created a conflict of interest with respect to G’s representation of the

petitioner in his criminal trial, as this court, having considered the facts of

this case under the multifactored analysis set forth in State v. Davis (344

Conn. 122), concluded that there was no evidence that G’s simultaneous

representation of S and the petitioner in the early stages of the petitioner’s

criminal trial and S’s unrelated criminal case was anything other than transient and insubstantial.

0, 0 CONNECTICUT LAW JOURNAL Page 1

0 Conn. App. 1 ,0 3

Papantoniou v. Commissioner of Correction

Even if this court were to conclude that a conflict of interest existed, the

petitioner failed to satisfy his burden of demonstrating that the conflict of

interest adversely affected G’s representation of the petitioner, as G’s failure

to use S’s prior convictions and pending cases to attack his credibility at

trial actually demonstrated that G was acting in the petitioner’s best interest

with respect to S, who was the only witness to corroborate the petitioner’s

account of what transpired the night of the murder.

The habeas court improperly determined that the petitioner’s sixth amendment right to the effective assistance of counsel was violated by G’s failure

to notify the petitioner in writing of his prior representation of S pursuant

to rule 1.7 of the Rules of Professional Conduct, as a party must demonstrate

that an actual conflict of interest adversely affected his attorney’s performance, and proof that an attorney violated rule 1.7 was not sufficient to

establish a violation of a client’s sixth amendment right to the effective

assistance of counsel.

Argued May 23, 2024—officially released October 14, 2025

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, M. Murphy, J.; judgment

granting the petition in part, from which the respondent,

on the granting of certification, appealed to this court.

Reversed in part; judgment directed.

Rocco A. Chiarenza, senior assistant state’s attorney,

with whom, on the brief, were Margaret E. Kelley,

state’s attorney, and Craig P. Nowak, supervisory assistant state’s attorney, for the appellant (respondent).

Vishal Garg, assigned counsel, for the appellee (petitioner).

Opinion

ELGO, J. The respondent, the Commissioner of Correction, appeals from the judgment of the habeas court

granting in part the petition for a writ of habeas corpus

filed by the petitioner, Nicholas J. Papantoniou. The

court granted the petition after concluding that the petitioner’s sixth amendment right to effective assistance

of counsel was violated due to an undisclosed, actual

Page 2 CONNECTICUT LAW JOURNAL 0, 0

4 ,0 0 Conn. App. 1

Papantoniou v. Commissioner of Correction

conflict of interest on the part of his criminal trial counsel, Attorney Glenn Conway. On appeal, the respondent

claims that the court (1) erroneously found that Conway

simultaneously represented the petitioner and James

Samperi, Jr., a witness who testified on behalf of the

state, at or near the time of the petitioner’s criminal

trial, and (2) improperly concluded that the petitioner

had established that Conway was burdened by an actual

conflict of interest that adversely affected his representation of the petitioner at the petitioner’s criminal trial.

We agree and, accordingly, reverse in part the judgment

of the habeas court. See footnote 2 of this opinion.

The following facts underlying the petitioner’s criminal conviction were set forth in his direct appeal. ‘‘At

approximately 12:30 p.m. on October 19, 2014, William

Coutermash drove to 397 Circular Avenue in Hamden;

the [petitioner] accompanied him. Larry Dildy, the victim, lived in the second floor apartment of a multifamily

house located at 397 Circular Avenue with his wife,

Vivian Dildy (Vivian), and their daughter, Ashante Dildy

(Ashante). The victim was a known drug dealer, and

according to Coutermash, he and the [petitioner] went

to the victim’s apartment with the intent to rob him.

More specifically, Coutermash said the plan was to

‘flash a gun in the [victim’s] face’ in an attempt to ‘get

either drugs or money’ from him.

‘‘When Coutermash and the [petitioner] arrived, Coutermash parked his vehicle—a black Jeep with New

York license plates—near the victim’s driveway and

handed the [petitioner] gloves and a handgun.

According to Coutermash, the [petitioner] then exited

the vehicle ‘to get drugs or money’ and also was armed

with a knife. The [petitioner], who was wearing a gray

sweatshirt, a tan hat, and sunglasses, then proceeded

to the back door of the victim’s apartment. Coutermash

testified that he stayed in his Jeep.

0, 0 CONNECTICUT LAW JOURNAL Page 3

0 Conn. App. 1 ,0 5

Papantoniou v. Commissioner of Correction

‘‘Vivian was home at the time, and according to her,

one ‘intruder’ entered the apartment through the apartment’s locked back door after the force of his knocking

opened it. She described the intruder as wearing a grey

‘sweat jacket’ and a yellow or beige hat. Shortly thereafter, Vivian saw the lone intruder pointing a gun at the

victim, heard him say something that ‘sounded like give

it up,’ and called 911 at her husband’s request. Ashante,

who was hiding in her room when the intruder entered

the apartment, also heard a single, ‘raspy’ male voice

say that ‘he needed the $400 and the pill,’ and overheard

her father respond that ‘[he] didn’t have it.’ After the

victim and the intruder argued for a period of time, a

physical fight ensued, and the two men struggled over

the intruder’s gun. During the struggle, the victim pulled

off the intruder’s sweatshirt, and Vivian struck the

intruder over the head with a broom handle before she

ran to a separate room. Vivian then heard two gunshots,

and the intruder quickly fled the apartment.

‘‘Minutes after the [petitioner] had exited the Jeep,

Coutermash observed emergency personnel arriving

and decided to drive away from the area. As he did

so, he encountered the [petitioner] on a nearby street,

picked him up, and the two left the scene. The victim

had been shot, cut, and stabbed multiple times during

the altercation; he was taken to a hospital and died

from his injuries.

‘‘During the ensuing police investigation, investigators recovered various items located on the floor near

the victim’s body, including a grey hooded sweatshirt,

a tan hat, sunglasses, and a knife. Subsequent scientific

testing revealed that DNA evidence taken from the grey

sweatshirt matched the [petitioner’s] DNA profile,

which was contained in a national database of DNA.

That same testing eliminated Coutermash as a source

of the DNA found on the grey sweatshirt. Scientific

testing of the tan hat also revealed the presence of

Page 4 CONNECTICUT LAW JOURNAL 0, 0

6 ,0 0 Conn. App. 1

Papantoniou v. Commissioner of Correction

both the [petitioner’s] and the victim’s DNA. Finally,

surveillance cameras near the victim’s apartment captured the [petitioner] discarding gloves and a handgun

shortly after the shooting.’’ (Footnotes omitted.) State

v. Papantoniou, 185 Conn. App. 93, 96–98, 196 A.3d

839, cert. denied, 330 Conn. 948, 196 A.3d 326 (2018).

The state thereafter charged the petitioner, by way of

an amended long form information, with felony murder

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

the first degree in violation of General Statutes § 53a101 (a) (1), and criminal possession of a firearm in

violation of General Statutes (Rev. to 2013) § 53a-217

(a) (1). At his criminal trial, ‘‘[t]he [petitioner] testified

. . . and was the final witness called by the defense.

His testimony, in certain respects, conflicted with Coutermash’s testimony. According to Coutermash, the victim did not owe him money, and he remained in his

Jeep when the [petitioner] went to the victim’s apartment. The [petitioner] testified that, on October 19,

2014, Coutermash told him that he needed to ‘collect

some money’ from someone. . . . In contrast to Coutermash, the [petitioner] claimed that when he and Coutermash arrived at 397 Circular Avenue, both of them

entered the victim’s apartment, and Coutermash

demanded $400 from the victim. The [petitioner] testified that he entered the victim’s apartment only after

Coutermash and the victim began fighting and when

things were ‘getting out of control . . . .’ Upon entering

the apartment, the [petitioner] told the victim: ‘[L]isten,

just give [Coutermash] his money—you know—let me

get the hell out of here, just give him what you owe

him, it’s gone far enough, it’s out of control, just give him

his money, you know.’ The [petitioner] further testified

that, immediately after he told the victim to give Coutermash money, Coutermash fled the apartment. At that

point, the [petitioner] claimed that the victim charged

at him, the two began to struggle over the gun in his

0, 0 CONNECTICUT LAW JOURNAL Page 5

0 Conn. App. 1 ,0 7

Papantoniou v. Commissioner of Correction

hand, and the gun ‘went off’ twice during the struggle.’’

(Citation omitted.) Id., 100–101.

‘‘Additionally, Vivian and Ashante both testified that

a lone intruder demanded money and pills from the

victim before struggling with and shooting him.

According to Vivian, the intruder wore a grey ‘sweat

jacket’ and a yellow or beige hat. DNA evidence found

on the grey sweatshirt and tan hat found next to the

victim’s body directly connected [the petitioner] to the

shooting, and [the petitioner] even testified at trial that

the gun discharged while he struggled with the victim.

. . . All of this is compelling evidence that [the petitioner] was armed with a gun when he unlawfully

entered the victim’s apartment with the intent to rob

the victim and that the victim died as a result of the

incident. The state therefore presented a very strong

case against the [petitioner]. . . . Moreover, Vivian

and Ashante corroborated Coutermash’s testimony that

[the petitioner] entered the victim’s apartment alone

with the intent to take either drugs or money from the

victim at gunpoint.’’ (Citation omitted.) Id., 105–106.

Samperi testified as a witness on behalf of the state.

In his testimony, Samperi stated that another individual,

Jason Marini, had had a drug deal go bad with the victim

and that Marini ‘‘had been plotting on him for a while.’’

Samperi testified that Marini and Coutermash had multiple conversations in his presence about robbing the

victim, during which Samperi stated that he wanted

nothing to do with it because he was on parole. Samperi

testified that the petitioner was not present for those

conversations.

Samperi also testified that he spoke to Coutermash

the day after the victim’s murder. At that time, Coutermash appeared nervous to Samperi and stated that

‘‘he had the fight with the guy . . . .’’ Samperi testified

that Coutermash told him that he ‘‘fucked up’’ and

Page 6 CONNECTICUT LAW JOURNAL 0, 0

8 ,0 0 Conn. App. 1

Papantoniou v. Commissioner of Correction

‘‘screwed up bad.’’ On cross-examination, Samperi testified that ‘‘[Coutermash] told me that he went [to the

victim’s residence] to collect a debt, he had the fight

with the guy . . . .’’

In addition, Samperi testified that, at the time of the

victim’s murder, he had an extensive knife collection

and had given a couple of knives to Coutermash. Samperi identified a photograph of the knife found at the

crime scene, which was admitted into evidence at the

petitioner’s criminal trial, as one that looked like a knife

he had given to Coutermash. Samperi also testified that

he did not know the petitioner ‘‘to carry that knife.’’

At the conclusion of trial, the jury found the petitioner

guilty on all counts.1 The trial court rendered judgment

accordingly and sentenced the petitioner to a term of

imprisonment of forty-five years on the felony murder

conviction, a concurrent sentence of twenty years of

imprisonment on the burglary conviction, and a concurrent sentence of ten years of imprisonment on the criminal possession of a firearm conviction, for a total effective sentence of forty-five years of imprisonment. Id.,

98. This court affirmed that judgment of conviction on

direct appeal. Id., 118.

The petitioner commenced this habeas corpus action

in 2017.2 In count one of his operative petition, the

Coutermash subsequently pleaded guilty, on June 30, 2016, to manslaughter in the first degree as an accessory in violation of General Statutes § 53a55 (a) (1) and burglary in the first degree as an accessory in violation of

§ 53a-101 (a) (1), for which he received a total effective sentence of eighteen

years of imprisonment, execution suspended after twelve years, and five

years of probation.

The petitioner acted in a self-represented capacity when he filed his

original habeas corpus petition in June, 2017. He subsequently retained

counsel and filed two amended petitions. The operative petition, his October

22, 2021 second amended petition for a writ of habeas corpus, alleged four

counts. Counts one and two alleged ineffective assistance of counsel on the

part of Conway. The claims set forth in the third and fourth counts of the

operative petition—which alleged a Brady violation for failure to disclose

Samperi’s pending cases to defense counsel; see Brady v. Maryland, 373

U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); and structural error as 0, 0 CONNECTICUT LAW JOURNAL Page 7

0 Conn. App. 1 ,0 9

Papantoniou v. Commissioner of Correction

petitioner alleged that ‘‘at the time of [the petitioner’s

criminal] trial . . . Conway was simultaneously representing the petitioner and [Samperi].’’ The petitioner

alternatively alleged that, ‘‘[e]ven if [Conway] did not

represent Samperi . . . at the time of [his] testimony

[at the petitioner’s criminal trial], Conway had a substantial and ongoing concurrent conflict of interest with

Samperi’’ due to his representation of Samperi at a

January 13, 2016 hearing. The petitioner alleged that

‘‘as a result of [Conway’s] representation of [Samperi]

. . . the petitioner’s right to the effective assistance of

counsel was violated’’ due to both Conway’s failure to

disclose this conflict of interest and his failure to

impeach Samperi with either his motives for testifying

or his various criminal charges. The petitioner also

alleged that he had never been advised of the conflict

of interest, much less waived his right to conflict free

representation. In the second count of his petition, the

petitioner claimed that, even if no conflict of interest

existed, Conway rendered ineffective assistance due to

his failure to cross-examine Samperi as to his pending

criminal case and motive or interest in testifying for

the state.

At the three day habeas trial that followed, the petitioner testified and offered copies of various transcripts

as evidence. The petitioner also presented the testimony of Samperi, Conway, former prosecutor Gary

Nicholson, Supervisory Assistant State’s Attorney Amy

Bepko, Supervisory Assistant State’s Attorney Stacy

Miranda, and Assistant State’s Attorney Karen Roberg.

The respondent submitted two transcripts and a copy

of an appearance form into evidence and also called

Bepko as a witness. Both parties filed posttrial briefs.

In its memorandum of decision, the habeas court

found that the ‘‘evidence demonstrates’’ that Conway

a result of Conway’s failure to disclose the conflict—were denied by the

habeas court and are not at issue in this appeal.

Page 8 CONNECTICUT LAW JOURNAL 0, 0

10 ,0 0 Conn. App. 1

Papantoniou v. Commissioner of Correction

had represented the petitioner and Samperi ‘‘at or near

the time of [the petitioner’s] criminal trial . . . .’’ The

court also found that, ‘‘[e]ven if there were no simultaneous representation of both, then, Samperi was a former and ongoing client who warranted proper disclosure to [the petitioner], opposing counsel, and the trial

court.’’ The court continued: ‘‘Although Conway viewed

Samperi as helpful to the [petitioner’s] defense, Samperi

also helped the state’s case by linking [the petitioner]

to Coutermash and Marini, connecting [the petitioner]

to a knife, and identifying [the petitioner] in several

videos.’’ In addition, the court found that ‘‘Samperi was

charged in the [weapons] case3 with a weapons offense

related to [a] burglary in Milford involving Marini and

Coutermash. Conway represented Samperi in that case

at the same time he represented [the petitioner]. Conway could not question Samperi about that conviction,

which occurred shortly before [the petitioner’s] trial

began, without opening the door to the state to explore

the connections between Marini, Coutermash, and

Samperi.’’ (Footnote added.)

The court further found that Conway was burdened

by a conflict of interest that he failed to disclose to the

petitioner, the prosecutors, or the court. Citing to rule

1.7 of the Rules of Professional Conduct, the court

found that Conway ‘‘had a duty to [the petitioner] to

disclose his conflict arising from simultaneously representing Samperi. Additionally, Conway had a duty to

the court to disclose his conflict so that the court can

make a record of the conflict, its disclosure, and determine whether [the petitioner] could consent to continuing with Conway.’’ The court also found that Conway

Throughout its memorandum of decision, the habeas court referred to

criminal Docket No. CR-XX-XXXXXXX-T as the ‘‘8509 case.’’ We refer to that

case in this opinion as the weapons case. The weapons case was resolved

shortly before the petitioner’s criminal trial commenced. See State v. Samperi, Superior Court, judicial district of Ansonia-Milford, Docket No. CRXX-XXXXXXX-T (January 13, 2016).

0, 0 CONNECTICUT LAW JOURNAL Page 9

0 Conn. App. 1 ,0 11

Papantoniou v. Commissioner of Correction

‘‘was operating under an impaired duty of loyalty by

simultaneously representing [the petitioner] and Samperi’’ and that ‘‘Conway’s cross-examination of Samperi

intentionally avoided questions that are routinely asked

to attack a witness’ credibility.’’ The court thus concluded that the petitioner had proven ineffective assistance of counsel on the part of Conway and, accordingly, granted the petition for a writ of habeas corpus

with respect to those claims. The respondent subsequently filed a petition for certification to appeal, which

the court granted, and this appeal followed.

The respondent first claims that the court erroneously found that Conway simultaneously represented

the petitioner and Samperi ‘‘at or near the time of [the

petitioner’s] criminal trial.’’4 In his operative petition

for a writ of habeas corpus, the petitioner alleged that

Conway simultaneously represented the petitioner and

Samperi ‘‘at the time’’ of the petitioner’s criminal trial.

The petitioner then alternatively alleged that, ‘‘[e]ven

if [Conway] did not represent Samperi’’ at the time

of the petitioner’s criminal trial, he had represented

Samperi at a January 13, 2016 hearing six weeks prior

to the start of the petitioner’s criminal trial on February

24, 2016. In its memorandum of decision, the court

found that Conway had represented the petitioner and

Samperi ‘‘at or near the time of [the petitioner’s] criminal trial . . . .’’ (Emphasis added.) To properly analyze

The petitioner argues that this claim is unreviewable because (1) it is

unpreserved, (2) the respondent induced any error on the part of the habeas

court, and (3) it is inadequately briefed. We do not agree. At the habeas trial,

both parties submitted documentary and testimonial evidence regarding the

extent of Conway’s representation of Samperi, and the respondent on appeal

has thoroughly briefed that issue by citing to relevant law and applying it

to the present case. Moreover, the respondent specifically argued in his

posttrial brief to the habeas court that Conway ‘‘was not actively representing

conflicting interests between [Samperi] and the petitioner at the time of the

petitioner’s criminal trial.’’

Page 10 CONNECTICUT LAW JOURNAL 0, 0

12 ,0 0 Conn. App. 1

Papantoniou v. Commissioner of Correction

the respondent’s claim, we consider those two alternative findings independently.

At the outset, we note that we review the factual

findings made by the trial court in connection with a

sixth amendment ineffective assistance claim pursuant

to the clearly erroneous standard. See State v. Davis,

344 Conn. 122, 132, 277 A.3d 1234 (2022). ‘‘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.) Id., 133.

For purposes of clarity, we begin by noting certain

facts that are not in dispute and find support in the

evidence presented at the habeas trial. In 2014, Samperi

was arrested and charged in the weapons case for his

role in a May, 2014 burglary in Milford.5 In March, 2015,

Samperi hired Conway to represent him in the weapons

case and Conway filed an appearance on his behalf.6

As the court found in its memorandum of decision, the weapons case

related to a burglary that occurred in Milford in 2014, in which Samperi,

Coutermash, and Marini all were implicated. As a result of his role in the

burglary, which involved the theft of firearms, Coutermash pleaded guilty

and was sentenced to one year of incarceration for conspiracy to commit

carrying a dangerous weapon in violation of General Statutes §§ 53a-48 and

53-206 on January 15, 2016. On March 4, 2016, Marini also pleaded guilty

to charges stemming from the burglary—namely, conspiracy to commit theft

of a firearm in violation of General Statutes §§ 53a-48 and 53a-212, conspiracy

to commit burglary in the third degree in violation of General Statutes §§ 53a48 and 53a-103, and conspiracy to commit larceny in the first degree in

violation of General Statutes §§ 53a-48 and 53a-122. Marini received a sentence of five years imprisonment, execution suspended after two years, with

five years of probation.

Samperi was charged in the weapons case with one count of conspiracy

to commit theft of a firearm in violation of §§ 53a-48 and 53a-212. At a plea

hearing held on January 8, 2016, Samperi entered a guilty plea, which was

vacated on January 13, 2016, due to a technical error. On January 13, 2016,

Samperi pleaded guilty to conspiracy to commit carrying a dangerous

weapon in violation of General Statutes §§ 53a-48 and 53-206.

At the habeas trial, Conway testified that he met Samperi in March, 2015,

and filed an appearance in the weapons case.

0, 0 CONNECTICUT LAW JOURNAL Page 11

0 Conn. App. 1 ,0 13

Papantoniou v. Commissioner of Correction

At that time, Conway represented the petitioner in the

criminal case underlying this habeas action.

When Conway learned that Samperi was a potential

witness in the petitioner’s criminal trial, Conway told

Samperi that he had to withdraw his representation of

Samperi.7 Conway then turned Samperi’s case over to

Attorney Richard P. Silverstein, who the petitioner concedes ‘‘represented Samperi until . . . January of

2016.’’ Silverstein filed an appearance on behalf of

Samperi in the weapons case on June 29, 2015. At that

time, Silverstein indicated that his appearance was ‘‘in

place of the appearance’’ previously filed by Conway.8

In December, 2015, Samperi was arrested and charged

with certain domestic violence offenses. At some point,

Samperi reached out to Conway, who encouraged him

to proceed without an attorney and work with family

relations to resolve those charges. On February 24,

2016, Samperi was arrested and charged with new

domestic related charges, including risk of injury to a

child. It is undisputed that Conway did not file appearances or provide legal representation to Samperi in

those cases at any time prior to or during the petitioner’s

criminal trial.9

At the habeas trial, Conway explained that, although he ‘‘never saw [his

representation of Samperi] as a conflict,’’ he recognized that it ‘‘could . . .

have the appearance of a conflict.’’

In his appellate brief, the petitioner acknowledges that ‘‘Conway’s representation of Samperi in [the weapons] case ended on or shortly before June

29, 2015.’’

On January 7, 2017, more than six months after the petitioner was sentenced in the criminal case giving rise to this habeas action, Samperi was

arrested on additional criminal charges. Samperi hired Conway to represent

him, and Conway subsequently negotiated a global plea offer that resolved

all of Samperi’s outstanding cases on August 1, 2017, in exchange for a four

and one-half year sentence. That representation occurred subsequent to

Conway’s representation of the petitioner.

At the habeas trial, Samperi testified that Conway had acted as his lawyer

in ‘‘all’’ of his cases between 2014 and 2017, with the exception of when

Silverstein replaced Conway in the weapons case. The record before us

contains evidence that Samperi had a total of four additional cases during

that time period: (1) Docket No. A22M-CR-XX-XXXXXXX-S, which pertained

Page 12 CONNECTICUT LAW JOURNAL 0, 0

14 ,0 0 Conn. App. 1

Papantoniou v. Commissioner of Correction

We begin with the court’s finding that Conway simultaneously represented the petitioner and Samperi at

the time of the petitioner’s criminal trial. That issue

requires little discussion. It is undisputed that Silverstein filed an appearance ‘‘in place of’’ Conway in

the weapons case in June, 2015, and that Conway thereafter did not file any appearances on behalf of Samperi

at any time prior to the conclusion of the petitioner’s

trial or his sentencing in June, 2016. There also is no

documentary or testimonial evidence in the record

before us that Conway provided legal representation

to Samperi in any court proceeding or otherwise at the

time of the petitioner’s trial.10 Accordingly, the court’s

finding that Conway simultaneously represented the

petitioner and Samperi at the time of the petitioner’s

trial is clearly erroneous. See, e.g., Rose v. Commissioner of Correction, 348 Conn. 333, 344–46, 304 A.3d

431 (2023).

In his operative habeas petition, the petitioner also

alleged that Conway represented Samperi at a January

to his December, 2015 arrest on domestic violence offenses; (2) Docket No.

A22M-CR-XX-XXXXXXX-S, which concerned his February, 2016 arrest on new

domestic related charges; (3) Docket No. A22M-CR-XX-XXXXXXX-S, which

concerned his January, 2017 arrest on, inter alia, burglary and forgery

charges; and (4) Docket No. A22M-CR-XX-XXXXXXX-S, which pertained to his

January, 2017 arrest for violating a protective order, disorderly conduct,

and assault in the third degree. To be clear, the undisputed evidence adduced

at the habeas trial indicates that, in early 2017, Samperi retained Conway

as counsel and Conway, at that time, negotiated a global settlement of those

four cases. For that reason, Samperi’s testimony that Conway acted as his

lawyer in ‘‘all’’ of those cases is consistent with the other evidence presented

at trial, which demonstrates that Conway helped Samperi resolve those

cases after being retained by Samperi in 2017. There nevertheless is no

evidence in the record that Conway filed an appearance or represented

Samperi in any of those cases prior to the conclusion of the petitioner’s

criminal trial.

The weapons case was resolved before the petitioner’s criminal trial

began, as the habeas court found in its memorandum of decision.

0, 0 CONNECTICUT LAW JOURNAL Page 13

0 Conn. App. 1 ,0 15

Papantoniou v. Commissioner of Correction

13, 2016 proceeding in the weapons case six weeks

prior to the start of the petitioner’s criminal trial. In its

memorandum of decision, the court found that Conway

had represented Samperi at the January 13, 2016 proceeding in the weapons case. On appeal, the respondent

concedes that there is evidence in the record to substantiate that finding in the form of a partial transcript of

that proceeding, but nonetheless argues that this court

should be left with a definite and firm conviction that

a mistake has been made. We agree.

The following additional facts are relevant to this

claim. As we have noted, Conway initially appeared on

behalf of Samperi in the weapons case in March, 2015,

and Silverstein filed an appearance in lieu of Conway

in June, 2015. In addition, the habeas court found, and

the record confirms, that, on January 8, 2016, Silverstein

and Samperi appeared before the court, Iannotti, J.,

and entered a plea in the weapons case under the Alford

doctrine. See North Carolina v. Alford, 400 U.S. 25, 37,

91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

Samperi returned to court five days later after a technical error with respect to that plea was discovered.11

At the habeas trial, the petitioner submitted a partial

transcript of the January 13, 2016 proceeding in the

weapons case, which was marked as the petitioner’s

exhibit 26. That transcript states that Conway appeared

on behalf of Samperi and Attorney Kevin Lawlor appeared

on behalf of the state. That transcript is one and onehalf pages in length. It begins with Conway confirming

that he has filed an appearance on behalf of Samperi

and then concludes with Conway requesting, and the

As the trial court noted in the weapons case and as Bepko testified at

the habeas trial, the plea entered by Samperi on January 8, 2016, had to be

vacated because it provided for a suspended sentence to a charge that

carried a mandatory minimum. The court described that error as a ‘‘[t]hreeway oversight’’ on the part of the court and the parties.

Page 14 CONNECTICUT LAW JOURNAL 0, 0

16 ,0 0 Conn. App. 1

Papantoniou v. Commissioner of Correction

court and the state’s attorney agreeing to, a continuance.12

The habeas court paradoxically was presented with

a second transcript of the January 13, 2016 proceeding

in the weapons case, which was admitted into evidence

as the respondent’s exhibit C. Unlike exhibit 26, the

transcript in exhibit C states that Attorney Leo Ahern

appeared on behalf of Samperi and that Bepko appeared

on behalf of the state. The transcript in exhibit C is

seven pages in length. Other than referring to Ahern

and Bepko instead of Conway and Lawlor, the first one

and one-half pages are identical to the transcript in

exhibit 26 until the final sentence. Whereas the transcript in exhibit 26 ends with ‘‘[w]hereupon, the case

The transcript in exhibit 26 states in full:

‘‘The Clerk: Your Honor, I think you might have an old docket, number

three is James Samperi.

‘‘The Court: Mr. Conway, have you filed your appearance with the clerk?

It’s not printing.

‘‘[Conway]: It should be there. If not, I could certainly do it right now.

‘‘The Clerk: I do have it, I don’t know why it didn’t print.

‘‘The Court: All right. What are we doing today?

‘‘[Conway]: Your Honor, we had initial discussions, I have provided some

documentation to the [prosecutor]. There might be a couple of other documents which may or may not be dispositive, but will certainly be helpful

in moving this along. Perhaps if we could get a new date in the interim? I

could communicate with the [prosecutor] and we could come to some kind

of understanding about some of the facts of this case at least. Could I please

have February 12th, Your Honor?

‘‘The Court: That’s not a holiday. I think the holiday is the fifteenth and

eighteenth.

‘‘The Clerk: No, the twelfth.

‘‘The Court: Twelfth and fifteenth, that’s why you are blank.

‘‘[Conway]: How about the eleventh, Your Honor?

‘‘[Lawlor]: That’s fine with the state.

‘‘The Court: February 11.

‘‘[Conway]: It’s a Thursday. Would a Monday be preferable?

‘‘[Lawlor]: No, no.

‘‘The Court: February 11.

‘‘[Conway]: Thank you, Your Honor.

‘‘The Defendant: Thank you.

‘‘[Conway]: May I approach?

‘‘(Whereupon, the case concluded.)’’

0, 0 CONNECTICUT LAW JOURNAL Page 15

0 Conn. App. 1 ,0 17

Papantoniou v. Commissioner of Correction

concluded,’’ the transcript in exhibit C states: ‘‘Whereupon, the case was recalled.’’ The transcript in exhibit

C then proceeds with a discussion of the technical error

regarding Samperi’s January 8, 2016 plea. See footnote

11 of this opinion. Ahern then moved to vacate that

plea, which the court granted, and Samperi entered a

new Alford plea to conspiracy to commit carrying a

dangerous weapon in violation of General Statutes

§§ 53a-48 (a) and 53-206, which the court accepted.

Both exhibit 26 and exhibit C purport to be transcripts

of the January 13, 2016 proceeding in the weapons case.

The transcripts both are authenticated and contain a

certification page.13 The certification date of the transcript in exhibit 26 is October 12, 2021; the certification

date on the transcript in exhibit C is January 26, 2022.

Both certification pages state that they are the ‘‘true

and accurate’’ transcript of the proceedings held before

the court, Iannotti, J., on January 13, 2016. The only

meaningful distinction between the transcript in exhibit

26 and the first one and one-half pages of the transcript

in exhibit C is the identity of Samperi’s counsel.

In its memorandum of decision, the court did not

squarely resolve the question of precisely which transcript was an accurate depiction of the January 13,

2016 proceeding. Instead, it appears to have found both

transcripts credible. The court, in crediting the transcript in exhibit 26, specifically found that ‘‘Conway

represented Samperi at that hearing.’’ At the same time,

the court, in crediting the transcript in exhibit C, found

that ‘‘Ahern appeared for Samperi in the weapons case,’’

at which time ‘‘Ahern moved to vacate the plea and

Samperi pleaded guilty to conspiracy to commit carrying a dangerous weapon in violation of . . . §§ 53a48 and 53-206.’’

The transcript in exhibit 26 is signed by Jean Kindley, certified court

reporter. The transcript in exhibit C contains Kindley’s electronic certification.

Page 16 CONNECTICUT LAW JOURNAL 0, 0

18 ,0 0 Conn. App. 1

Papantoniou v. Commissioner of Correction

In light of those conflicting transcripts, the respondent argues that this court should be left with a definite

and firm conviction that a mistake has been made, as

‘‘two transcripts attributing the same words to two different persons cannot both be correct.’’ In that regard,

the respondent emphasizes that, although the factual

findings of a habeas court are governed by the clearly

erroneous standard, it remains the burden of a habeas

petitioner to establish the facts underlying a purported

constitutional violation by a fair preponderance of the

evidence. See, e.g., Parke v. Raley, 506 U.S. 20, 34–35,

113 S. Ct. 517, 526, 121 L. Ed. 2d 391 (1993); Johnson

v. Zerbst, 304 U.S. 458, 468–69, 58 S. Ct. 1019, 82 L. Ed.

1461 (1938); Arey v. Warden, 187 Conn. 324, 331, 445

A.2d 916 (1982).

We agree with the respondent that both of the certified transcripts admitted into evidence cannot be correct. If the habeas court had credited either transcript

over the other, and made findings consistent with the

representations contained therein, the deferential standard that governs our review of factual determinations

would be dispositive. That is not the case here, as the

court credited both transcripts in its memorandum of

decision.

Moreover, both transcripts begin with the court

inquiring as to whether the counsel who represented

Samperi had filed an appearance with the clerk.14 In

both transcripts, counsel responds by saying ‘‘[i]t

should be’’ in the court file and the clerk, in both transcripts, confirms that ‘‘I do have it . . . .’’ Plainly, then,

whomever appeared before the court on behalf of Samperi when the January 13, 2016 proceeding commenced

had filed an appearance with the court.

We reiterate that it is undisputed that Silverstein represented Samperi

in the weapons case from the time that he filed his appearance on June 29,

2015, until the January 13, 2016 proceeding.

0, 0 CONNECTICUT LAW JOURNAL Page 17

0 Conn. App. 1 ,0 19

Papantoniou v. Commissioner of Correction

Under the anomalous and extraordinary circumstances of the present case, we agree with the respondent that it is appropriate to take judicial notice of

certain filings in the court file for the weapons case.15

That court file contains an appearance filed by Ahern

on behalf of Samperi on January 13, 2016.16 In addition,

the court file contains a copy of a substitute information

dated January 13, 2016, to which Samperi pleaded guilty

to conspiracy to commit carrying a dangerous weapon

in violation of §§ 53a-48 and 53-206. That document

contains a handwritten note in the lower left corner

that states in relevant part: ‘‘1-13-16 Attorney Leo Ahern

filed appearance in addition to Rick Silverstein. . . .’’

Judge Iannotti’s name appears in parentheses at the

conclusion of that handwritten note. The court file for

the weapons case does not contain an appearance or

It is well established that an appellate court may take judicial notice

of court files in other cases. See, e.g., Drabik v. East Lyme, 234 Conn. 390,

398, 662 A.2d 118 (1995) (‘‘[t]here is no question that the trial court may

take judicial notice of the file in another case, whether or not the other

case is between the same parties’’ (internal quotation marks omitted)); State

v. Allen, 205 Conn. 370, 382, 533 A.2d 559 (1987) (‘‘judicial notice can be

taken at any stage of the proceedings including on appeal’’); see also State

v. Gaines, 257 Conn. 695, 705 n.7, 778 A.2d 919 (2001) (taking judicial notice,

in context of conflict of interest claim, of transcript from another defendant’s

case and other court files not referenced in trial court); Lebron v. Commissioner of Correction, 178 Conn. App. 299, 306 n.5, 175 A.3d 46 (2017) (taking

judicial notice of contents of court file in petitioner’s second habeas action

even though ‘‘neither party submitted to the habeas court in the present

action any portion of the pleadings or decision in the second habeas action’’),

cert. denied, 328 Conn. 913, 179 A.3d 779 (2018).

The contents of a court file are fundamentally distinct from other extrajudicial materials of which judicial notice properly may be taken. As our Supreme

Court has observed, court files are ‘‘matters of established fact, the accuracy

of which cannot be questioned . . . .’’ Moore v. Moore, 173 Conn. 120, 122,

376 A.2d 1085 (1977). For that reason, ‘‘[t]here is no question . . . concerning [an appellate court’s] power to take judicial notice of files of the Superior

Court, whether the file is from the case at bar or otherwise.’’ Karp v. Urban

Redevelopment Commission, 162 Conn. 525, 527, 294 A.2d 633 (1972).

That appearance indicates that it was filed ‘‘in addition to an appearance

already on file.’’ The only other appearances in the weapons case file are

Conway’s March 2, 2015 appearance and Silverstein’s June 29, 2015 appearance in place of Conway.

Page 18 CONNECTICUT LAW JOURNAL 0, 0

20 ,0 0 Conn. App. 1

Papantoniou v. Commissioner of Correction

other filing from Conway at any point subsequent to

Silverstein’s June, 2015 appearance in lieu of him.

Those court files, considered in tandem with the

unequivocal statement in both exhibit 26 and exhibit C

that counsel for Samperi had filed an appearance in the

weapons case, convince us that the court’s finding that

Conway represented Samperi at the January 13, 2016

hearing cannot stand. This is the rare case in which we

are left with a definite and firm conviction that a mistake

has been made. See Sun Val, LLC v. Commissioner of

Transportation, 330 Conn. 316, 327, 193 A.3d 1192

(2018) (‘‘we will not uphold a factual determination if

we are left with the definite and firm conviction that

a mistake has been made’’ (internal quotation marks

omitted)). We therefore conclude that the court’s finding that Conway represented Samperi at the January

13, 2016 hearing is clearly erroneous.

The respondent also contends that the court improperly concluded that the petitioner had established that

Conway was burdened by an actual conflict of interest

that adversely affected his representation of the petitioner at his criminal trial. We agree.

‘‘It is axiomatic that a criminal defendant’s sixth

amendment right to the effective assistance of counsel

includes the right to counsel that is free from conflicts

of interest. . . . It is a fundamental principle . . . that

an attorney owes an overarching duty of undivided loyalty to his [or her] client. At the core of the sixth amendment guarantee of effective assistance of counsel is

loyalty, perhaps the most basic of counsel’s duties. . . .

Loyalty of a lawyer to his [or her] client’s cause is the

sine qua non of the [s]ixth [a]mendment’s guarantee

that an accused is entitled to effective assistance of

counsel. . . . That guarantee affords a defendant the

right to counsel’s undivided loyalty.’’ (Citation omitted;

0, 0 CONNECTICUT LAW JOURNAL Page 19

0 Conn. App. 1 ,0 21

Papantoniou v. Commissioner of Correction

footnote omitted; internal quotation marks omitted.)

State v. Davis, 338 Conn. 458, 469–70, 258 A.3d 633

(2021).

The parties submit, and we agree, that the standard

propounded in Cuyler v. Sullivan, 446 U.S. 335, 100

S. Ct. 1708, 64 L. Ed. 2d 333 (1980), applies to the

respondent’s claim. In Sullivan, the United States

Supreme Court explained that ‘‘multiple representation

does not violate the [s]ixth [a]mendment unless it gives

rise to a conflict of interest.’’ Id., 348. It then held that,

to establish a sixth amendment violation, ‘‘a defendant

who raised no objection at trial must demonstrate that

an actual conflict of interest adversely affected his lawyer’s performance.’’ Id. The court further observed that,

‘‘until a [petitioner] shows that his counsel actively represented conflicting interests, he has not established

the constitutional predicate for his claim of ineffective

assistance.’’ Id., 350.

The United States Supreme Court clarified that standard in Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237,

152 L. Ed. 2d 291 (2002). In Mickens, the court rejected

the contention that, to establish a sixth amendment

violation, a petitioner ‘‘need only show that his lawyer

was subject to a conflict of interest, and need not show

that the conflict adversely affected counsel’s performance.’’ Id., 170. As the court stated: ‘‘[W]e think ‘an

actual conflict of interest’ meant precisely a conflict

that affected counsel’s performance—as opposed to a

mere theoretical division of loyalties. [That phraseology] was shorthand for the statement in Sullivan that a

defendant who shows that a conflict of interest actually

affected the adequacy of his representation need not

demonstrate prejudice in order to obtain relief.’’

(Emphasis in original; internal quotation marks omitted.) Id., 171; see also Diaz v. Commissioner of Correction, 344 Conn. 365, 377, 279 A.3d 147 (2022) (citing

Mickens for proposition that ‘‘[a]n actual conflict, for

Page 20 CONNECTICUT LAW JOURNAL 0, 0

22 ,0 0 Conn. App. 1

Papantoniou v. Commissioner of Correction

[s]ixth [a]mendment purposes, is a conflict of interest

that adversely affects counsel’s performance’’ (internal

quotation marks omitted)).

As the United States Court of Appeals for the Fifth

Circuit has observed, ‘‘[r]egardless of this clarification

of the terminology, the relevant questions remain the

same, and we must ask whether [counsel] labored under

a conflict of interest, which was not merely hypothetical, and whether that conflict adversely affected the

representation (i.e., whether it was an actual conflict).’’

United States v. Infante, 404 F.3d 376, 392 (5th Cir.

2005); see also McFarland v. Yukins, 356 F.3d 688,

706 (6th Cir. 2004) (noting that Mickens ‘‘changed the

terminology, but not the substance’’ of test under Sullivan); Moss v. United States, 323 F.3d 445, 467 n.23 (6th

Cir.) (‘‘In Mickens, the Supreme Court clarified its prior

definition of the term ‘actual conflict of interest’ as

comprising both requirements of the Sullivan test—a

conflict of interest and adverse effect. . . . An ‘actual

conflict of interest’ therefore is a term of art requiring

a conflict of interest and adverse effect. . . . [T]he

‘actual conflict of interest’ required in the first prong

of the court’s test requires only that the petitioner demonstrate a real or genuine, as opposed to a hypothetical,

conflict of interest.’’ (Citation omitted.)), cert. denied,

540 U.S. 879, 124 S. Ct. 303, 157 L. Ed. 2d 144 (2003).

In 2022, our Supreme Court released two opinions

in short succession that pertained to the applicable test

under Sullivan. In State v. Davis, supra, 344 Conn. 122,

the court, quoting the decision of the Fifth Circuit in

United States v. Infante, supra, 404 F.3d 392, explained

that ‘‘[w]hether a conflict of interest exists depends

on a number of factors, including, but not limited to,

whether the attorney has confidential information that

is helpful to one client but harmful to another; whether

and how closely the subject matter of the multiple representations is related; how close in time the multiple

0, 0 CONNECTICUT LAW JOURNAL Page 21

0 Conn. App. 1 ,0 23

Papantoniou v. Commissioner of Correction

representations are related; and whether the prior representation has been unambiguously terminated. . . .

This question is highly [fact sensitive].’’ (Citation omitted; emphasis added; internal quotation marks omitted.)

State v. Davis, supra, 344 Conn. 133–34. As Infante

makes clear, that multifactored analysis pertains to the

first prong of the test under Sullivan. See United States

v. Infante, supra, 392. In Davis, our Supreme Court

also elaborated on the sort of evidence that is required

to establish that an attorney’s conflict of interest

adversely affected the representation of a client. See

State v. Davis, supra, 344 Conn. 134–35 (‘‘there is simply

no evidence that [the interests of counsel and the client]

ever diverged with respect to any material factual or

legal issue, or to a course of action, or that [counsel’s]

representation of the defendant was otherwise impaired

as a result of [counsel’s] loyalty to [another client]’’).

Three weeks after Davis was released, our Supreme

Court released its decision in Diaz v. Commissioner

of Correction, supra, 344 Conn. 365. In Diaz, the court

noted that ‘‘[t]he Sullivan standard is often framed as

a two part test: [i]n order to establish a violation of the

sixth amendment right to counsel based on defense

counsel’s actual, undisclosed conflict of interest, a petitioner must establish (1) that counsel actively represented conflicting interests and (2) that [the] actual

conflict of interest adversely affected his [counsel’s]

performance.’’ (Internal quotation marks omitted.) Id.,

376–77. Citing to federal case law, the court then noted

that, ‘‘[a]lthough framed as a two part test . . . in practice, [t]hese components are considered in a single,

integrated inquiry. . . . That is to say, the Sullivan

standard is not properly read as requiring inquiry into

actual conflict as something separate and apart from

adverse effect. An actual conflict, for [s]ixth [a]mendment purposes, is a conflict of interest that adversely

Page 22 CONNECTICUT LAW JOURNAL 0, 0

24 ,0 0 Conn. App. 1

Papantoniou v. Commissioner of Correction

affects counsel’s performance.’’ (Citation omitted; internal quotation marks omitted.) Id., 377. In Diaz, the

court did not reference its recent decision in State v.

Davis, supra, 344 Conn. 122, or the multifactored analysis set forth therein regarding the first prong of the test

under Sullivan. The court has not since addressed the

applicable standard for claims that an attorney was

burdened by an actual conflict of interest that adversely

affected his representation of a client.

We are mindful that, ‘‘[a]s an intermediate appellate

tribunal, this court is not at liberty to modify, reconsider, or overrule the precedent of our Supreme Court.’’

State v. Siler, 204 Conn. App. 171, 178, 253 A.3d 995,

cert. denied, 343 Conn. 912, 273 A. 3d 694 (2021). Our

obligation is to reconcile and harmonize the various

precedents of our Supreme Court to the extent practicable. In our view, State v. Davis, 344 Conn. 122, and Diaz

are not incongruous but, rather, reflect commentary on

distinct aspects of Sullivan and its progeny, as developed in federal law. In Diaz, the court emphasized,

consistent with Mickens v. Taylor, supra, 535 U.S. 172

n.5, that an actual conflict of interest is one ‘‘that

adversely affects counsel’s performance.’’ (Internal

quotation marks omitted.) In Davis, consistent with

United States v. Infante, supra, 404 F.3d 376, on which

it relied, the court articulated a multifactored analysis

to determine ‘‘[w]hether a conflict of interest exists

. . . .’’ (Internal quotation marks omitted.) State v.

Davis, supra, 344 Conn. 133. The court in Davis also

set forth and applied various factors to determine

whether an attorney’s conflict of interest adversely

affected the representation of a client. Id., 133–35. Read

together, State v. Davis, supra, 344 Conn. 122, and Diaz

are consistent with the observation of the United States

Court of Appeals for the Sixth Circuit that Mickens

‘‘changed the terminology, but not the substance’’ of

the test under Sullivan. McFarland v. Yukins, supra,

0, 0 CONNECTICUT LAW JOURNAL Page 23

0 Conn. App. 1 ,0 25

Papantoniou v. Commissioner of Correction

356 F.3d 706; see also United States v. Infante, supra,

392 (‘‘[r]egardless of [Mickens’] clarification of the terminology [used in Sullivan], the relevant questions

remain the same’’).

In light of the foregoing, we first consider whether

Conway’s prior representation of Samperi created a

conflict of interest in his representation of the petitioner

at trial. That inquiry is guided by the multifactored analysis set forth in State v. Davis, supra, 344 Conn. 133–34.

We then consider whether any conflict of interest

adversely affected Conway’s representation of the petitioner at trial. Both questions involve mixed questions

of law and fact. See id., 132–33; see also United States

v. Infante, supra, 404 F.3d 391 (‘‘[t]he determinations

whether a conflict existed and whether the conflict had

an adverse effect are mixed questions of law and fact’’).

Under the particular facts of this case, we conclude

that no conflict of interest existed due to Conway’s

prior representation of Samperi and that, even if one

did exist, it did not adversely affect Conway’s representation of the petitioner at his criminal trial.

We begin with the question of whether a conflict

existed due to Conway’s representation of the petitioner

and Samperi. In resolving that question, we consider

‘‘whether the attorney has confidential information that

is helpful to one client but harmful to another; whether

and how closely the subject matter of the multiple representations is related; how close in time the multiple

representations are related; and whether the prior representation has been unambiguously terminated.’’

(Internal quotation marks omitted.) State v. Davis,

supra, 344 Conn. 133–34. In its memorandum of decision, the court stated that it was ‘‘unclear whether Conway had confidential information that was helpful to

Samperi but harmful to [the petitioner], or vice versa

Page 24 CONNECTICUT LAW JOURNAL 0, 0

26 ,0 0 Conn. App. 1

Papantoniou v. Commissioner of Correction

. . . .’’ The court then stated that ‘‘the other [Davis]

factors have been clearly established.’’

There is nothing in the record before us to indicate

that Conway possessed confidential information that

was helpful to the petitioner but harmful to Samperi

or vice versa, and the court did not make such a finding

in its memorandum of decision.17 See, e.g., Hall v.

United States, 371 F.3d 969, 973 (7th Cir. 2004) (conflict

of interest existed where counsel’s representation of

another client ‘‘enabled him to learn confidential information pertaining directly to [his client’s] case’’). Moreover, Samperi’s testimony at the habeas trial suggests

that he did not provide confidential information to Conway.18

With respect to the second factor, the subject matter

of Conway’s representation of Samperi and the subject

matter of his representation of the petitioner were

The January 8, 2016 transcript of the plea hearing in the weapons case

was admitted into evidence at the habeas trial. During the canvass conducted

by the court, the prosecutor acknowledged that the state was ‘‘okay’’ with an

Alford plea because, while the two individuals who committed the burglary

in that matter ‘‘gave up’’ Samperi, they admitted that they were the ones

who had masterminded the conspiracy and that Samperi had been taken

‘‘along for the ride.’’ The prosecutor also admitted that the case against

Samperi was weak. For those reasons, the state sought no incarceration or

probation and simply requested a conditional discharge. We further note

that, because Silverstein’s appearance in place of Conway occurred relatively

early in a case in which the state’s evidence was weak, it is not surprising

that there would be a dearth of confidential information that would have

any bearing on Conway’s representation of the petitioner.

On direct examination by the petitioner’s counsel at the habeas trial,

Samperi was asked whether ‘‘[a]t any time prior to you taking the witness

stand [in the petitioner’s criminal trial] . . . Conway ask[ed] you about

what you know about [the petitioner’s] case,’’ whether Conway ‘‘ever discuss[ed] with you what he would ask you if you testified at [the petitioner’s

criminal] trial,’’ and whether Conway ‘‘ever [told] you what he would not

ask you if you testified at [the petitioner’s criminal] trial’’; Samperi responded

in the negative to each of those queries. In addition, Samperi was asked on

cross-examination by the respondent’s counsel if he had spoken to Conway

about his testimony prior to the petitioner’s criminal trial. Samperi replied,

‘‘[n]o, we didn’t speak about—he said it was confidential, can’t speak about

it. You know, there’s nothing—no.’’

0, 0 CONNECTICUT LAW JOURNAL Page 25

0 Conn. App. 1 ,0 27

Papantoniou v. Commissioner of Correction

somewhat related, as they involved firearms and Coutermash, a common accomplice.19 We nevertheless disagree with the court that they were ‘‘closely related,’’

as this is not a case in which the subject matter of

Conway’s representation of the petitioner and Samperi

pertained to ‘‘the same alleged conspiracy’’; United

States v. Infante, supra, 404 F.3d 392; or the same criminal conduct. See, e.g., Perillo v. Johnson, 205 F.3d 775,

782–86 (5th Cir. 2000) (defense counsel represented

two defendants in separate criminal trials arising from

same acts and same capital murder charge); Armstrong

v. People, 701 P.2d 17, 18–22 (Colo. 1985) (en banc)

(conflict of interest existed where counsel represented

husband and wife involved in same armed robbery incident); State v. Galaviz, 296 Kan. 168, 178–79, 291 P.3d 62

(2012) (counsel’s representation of victim of underlying

offense as guardian ad litem constituted conflict of

interest in representing defendant in subsequent probation revocation proceeding regarding that underlying

offense).

Samperi was charged in the weapons case with one

count of conspiracy to commit theft of a firearm in

violation of General Statutes §§ 53a-48 and 53a-212

stemming from a burglary incident that transpired in

Milford in May, 2014. The petitioner, by contrast, was

charged in the criminal matter underlying this habeas

action with felony murder in violation of § 53a-54c, burglary in the first degree in violation of § 53a-101 (a) (1),

and criminal possession of a firearm in violation of

At the petitioner’s criminal trial, Samperi testified that the gun used in

the victim’s murder was the gun that Marini sold to Coutermash ‘‘from a

burglary that [Marini] did in Milford, I believe.’’ On direct examination,

Marini identified the firearm in question as the one he had sold to Coutermash

and testified that it had been procured through a burglary in Milford. At the

habeas trial, Conway acknowledged that there was evidence presented at

the petitioner’s criminal trial that the gun used in the victim’s murder was

one that Coutermash had acquired as a result of the Milford robbery at

issue in the weapons case.

Page 26 CONNECTICUT LAW JOURNAL 0, 0

28 ,0 0 Conn. App. 1

Papantoniou v. Commissioner of Correction

General Statutes (Rev. to 2013) § 53a-217 (a) (1) following the murder of the victim in his home in Hamden

on October 19, 2014. There is no evidence in the record,

and the petitioner has not argued, that Samperi was in

any way involved in that October 19, 2014 incident.

As to the third factor, the court found that ‘‘Conway’s

representation of Samperi and the petitioner were

simultaneous or, at best, extremely close in time.’’ That

determination was predicated, in part, on the court’s

finding that Conway represented Samperi at the January

13, 2016 proceeding in the weapons case. In part I of

this opinion, we concluded that this finding, as well as

the court’s finding that Conway represented Samperi

at the time of the petitioner’s criminal trial, are clearly

erroneous. To be sure, the record indicates that Conway

represented both Samperi and the petitioner from

March to June, 2015, at which time Silverstein appeared

in place of Conway in the weapons case.20 See footnote

8 of this opinion. Nothing in the record indicates that

Conway subsequently filed an appearance or provided

legal representation to Samperi until more than six

months after the petitioner’s criminal proceeding concluded. See footnote 9 of this opinion. As the petitioner

acknowledges in his appellate brief, Silverstein ‘‘represented Samperi [in the weapons case] until . . . January of 2016.’’

With respect to the fourth factor, the court found

that Conway’s representation of Samperi ‘‘was not

unambiguously terminated . . . prior to and during

[the petitioner’s] criminal trial.’’ It is undisputed that,

when Conway learned that Samperi was a potential

witness in the petitioner’s criminal trial, Conway told

Samperi that he had to withdraw his representation of

Samperi. It also is undisputed that, on June 29, 2015,

The petitioner’s criminal trial began approximately eight months after

Silverstein replaced Conway as Samperi’s counsel.

0, 0 CONNECTICUT LAW JOURNAL Page 27

0 Conn. App. 1 ,0 29

Papantoniou v. Commissioner of Correction

Silverstein appeared in place of Conway as Samperi’s

counsel in the weapons case. As discussed in part I

of this opinion, the record contains no evidence that

Conway thereafter represented Samperi in any legal

proceeding prior, or otherwise, to or during the petitioner’s criminal trial.21 At the same time, the record indicates that, following his December, 2015 arrest on

domestic related charges, Samperi contacted Conway

for advice on how to proceed and that he subsequently

retained Conway as counsel in 2017, more than six

months after the petitioner’s criminal proceeding concluded. That evidence suggests that, although Conway

had terminated his representation of Samperi in June,

2015, Samperi continued to operate as though he could

consult with Conway on legal matters. Samperi nevertheless testified at the petitioner’s habeas trial that Conway specifically informed him that Conway could not

continue to represent him due to his representation of

the petitioner.22

In articulating the foregoing factors in State v. Davis,

supra, 344 Conn. 133–34, our Supreme Court emphasized that the relevant inquiry is dependent on a number

of factors and is not limited to those quoted from United

States v. Infante, supra, 404 F.3d 392. In our view, the

character and extent of an attorney’s representation of

In its memorandum of decision, the court found that, ‘‘[a]t the time of

[the petitioner’s] criminal trial, Conway continued to represent Samperi in

what is best described as an ‘on-and-off-and-on again’ manner.’’ That finding

presumably is predicated on the court’s erroneous finding that Conway

appeared on behalf of Samperi at the January 13, 2016 proceeding in the

weapons case. The court did not identify any other legal proceeding in

which Conway represented Samperi prior to the conclusion of the petitioner’s criminal trial and the record is devoid of evidence of such representation.

See footnote 9 of this opinion.

Samperi testified that Conway told him that, due to his representation

of the petitioner, ‘‘he had to back out [of the weapons case and] he couldn’t

be my lawyer anymore.’’ Samperi similarly testified, when asked about

Silverstein’s involvement in that case, that Conway had told him that his

representation of the petitioner could give rise to a conflict of interest, so

Conway ‘‘had to turn my case over to another attorney.’’

Page 28 CONNECTICUT LAW JOURNAL 0, 0

30 ,0 0 Conn. App. 1

Papantoniou v. Commissioner of Correction

another client is a critical consideration in ascertaining

whether a conflict of interest exists.

At the habeas trial, the petitioner presented no evidence regarding the substantive nature of Conway’s

representation of Samperi in the weapons case. Conway

began representing Samperi in March, 2015, and was

replaced by Silverstein in June, 2015. At the habeas

trial, Conway testified that he only recalled appearing

in court on behalf of Samperi once or twice prior to his

replacement by Silverstein. Conway also acknowledged

that some scheduled appearances during that time

period may have been continued ‘‘without anybody

showing up’’ to court. See, e.g., Marshall v. Commissioner of Correction, 184 Conn. App. 709, 717–19, 196

A.3d 388 (noting, in support of conclusion that no conflict of interest existed due to counsel’s simultaneous

representation of witness for brief period who later

testified at petitioner’s criminal trial, that counsel had

represented that witness for only ‘‘approximately four

months’’ and that there were not ‘‘a lot of things going on

with the case while [counsel] represented [the witness]

other than getting pretrials’’), cert. denied, 330 Conn.

949, 197 A.3d 389 (2018).

The limited nature of Conway’s representation of

Samperi in the weapons case stands in stark contrast

to Perillo v. Johnson, supra, 205 F.3d 775. In that case,

Attorney Jim Skelton served as defense counsel to Linda

Fletcher, who was charged along with Pamela Perillo

and Mike Briddle with capital murder arising out of the

same incident. Id., 782–83. After Fletcher’s trial, she and

Skelton ‘‘stayed in contact with each other by written

correspondence and with telephone calls. Skelton also

developed a close relationship with Fletcher’s mother.

. . . [W]hen Fletcher planned to remarry, Skelton was

asked to come to California and give the bride away.

Skelton agreed, and traveled to California to spend several days participating in the wedding festivities with

0, 0 CONNECTICUT LAW JOURNAL Page 29

0 Conn. App. 1 ,0 31

Papantoniou v. Commissioner of Correction

Fletcher’s family.’’ Id., 784. When Fletcher returned to

Texas in 1981 to testify as a witness for the state in

Briddle’s criminal trial, ‘‘she stayed with Skelton for

between seven and ten days in his one bedroom condominium.’’ Id., 786.

When Skelton subsequently was appointed to represent Perillo in her criminal trial in November, 1983, he

did not alert her to his prior representation of Fletcher.

Id. In preparing for Perillo’s trial, he met with Fletcher,

allowed her to again stay in his condominium, and

worked at length with her to ensure that her testimony

was consistent with her prior testimony at Briddle’s

trial and to afford her ‘‘a preview of [his] cross-examination on Perillo’s behalf.’’ Id., 788–89. In concluding that

an actual conflict existed with respect to Skelton’s representation of Perillo and Fletcher, the court stated

that ‘‘[w]here the prior representation involved a . . .

substantial attorney-client relationship, a finding of

actual conflict is more likely. . . . Where, however,

defense counsel’s involvement in the prior representation was either transient or insubstantial, we have been

less inclined to find an actual conflict.’’ (Citation omitted.) Id., 799.

Unlike in Perillo, the petitioner in the present case

provided no evidence that Conway’s simultaneous representation of Samperi and the petitioner in the early

stages of both the petitioner’s criminal action and the

weapons case involving Samperi was anything other

than transient and insubstantial. Considered in totality,

the foregoing factors convince us that Conway’s simultaneous representation of Samperi and the petitioner

for four months in 2015 did not create a conflict of

interest with respect to Conway’s representation of the

petitioner at his criminal trial. The habeas court improperly concluded to the contrary.

Page 30 CONNECTICUT LAW JOURNAL 0, 0

32 ,0 0 Conn. App. 1

Papantoniou v. Commissioner of Correction

Even if we were to conclude that a conflict of interest

existed, the petitioner still could not prevail. On our

thorough review of the record before us, we conclude

that the petitioner failed to satisfy his burden of demonstrating that Conway was hampered by a conflict of

interest that adversely affected his representation of

the petitioner.

In State v. Davis, supra, 344 Conn. 122, our Supreme

Court noted that ‘‘an attorney may be considered to be

laboring under an impaired duty of loyalty, and thereby

be subject to conflicting interests, because of interests

or factors personal to him that are inconsistent, diverse

or otherwise discordant with [the interests] of his client

. . . .’’ (Internal quotation marks omitted.) Id., 133. To

establish that a conflict of interest adversely affected

the representation of a client, the court explained, there

must be evidence that the interests of counsel and the

client diverge ‘‘with respect to any material factual or

legal issue, or to a course of action, or that [counsel’s]

representation of the defendant was otherwise impaired

as a result of [counsel’s] loyalty to [another client].’’ Id.,

134–35. That explication is consistent with the court’s

earlier pronouncement in State v. Davis, supra, 338

Conn. 458, that ‘‘[o]nce a [party] has established that

there is an actual conflict, he must show that a lapse

of representation . . . resulted from the conflict. . . .

To prove a lapse of representation, [that party] must

demonstrate that some plausible alternative defense

strategy or tactic might have been pursued but was

not and that the alternative defense was inherently in

conflict with or not undertaken due to the attorney’s

other loyalties or interests.’’ (Internal quotation marks

omitted.) Id., 478 n.13; see also Diaz v. Commissioner

of Correction, supra, 344 Conn. 378 (same).

0, 0 CONNECTICUT LAW JOURNAL Page 31

0 Conn. App. 1 ,0 33

Papantoniou v. Commissioner of Correction

In its memorandum of decision, the court identified

only one defense strategy or tactic that was available,

but not pursued by Conway—his ‘‘failure to use Samperi’s prior convictions and pending cases to attack his

credibility.’’ On appeal, the petitioner maintains that

attacking Samperi’s credibility was a plausible line of

attack, which establishes the requisite adverse impact

on Conway’s representation.23 We do not agree.

At the outset, we note that the court’s conclusion

that impeaching Samperi with his prior convictions was

a plausible tactic ignores the undisputed fact, which

both the state and Conway emphasized during jury

selection and at trial, that the petitioner and several

of the witnesses had significant criminal histories. As

Conway reiterated during closing argument, both he

and the prosecutor in voir dire sought assurances from

the jurors that they would not allow a witness’ criminal

history to impact their ability to assess the credibility

of witnesses.

In its memorandum of decision, the court found that

‘‘Conway did not attack Samperi’s credibility because

he assessed Samperi’s testimony as helpful to the

defense and made . . . a tactical decision to not

impeach [him].’’ The court nonetheless opined that

‘‘[w]hether or not Conway thought Samperi’s testimony

To the extent that the petitioner relies on State v. Crocker, 83 Conn.

App. 615, 852 A.2d 762, cert. denied, 271 Conn. 910, 859 A.2d 571 (2004),

and State v. Taylor, 177 Conn. App. 18, 171 A.3d 1061 (2017), cert. denied,

327 Conn. 998, 176 A.3d 555 (2018), those cases are inapposite, as they

involved pretrial disqualification regarding a defendant’s sixth amendment

right to counsel of choice. Unlike requests for postconviction relief, for

which an actual conflict must be established; see, e.g., State v. Davis, supra,

344 Conn. 132; Marshall v. Commissioner of Correction, supra,184 Conn.

App. 714–21 (2018); in cases involving pretrial disqualification, a party can

prevail if they establish that ‘‘a potential for conflict exists which may or

may not burgeon into an actual conflict as the trial progresses.’’ (Internal

quotation marks omitted.) State v. Crocker, supra, 626.

Page 32 CONNECTICUT LAW JOURNAL 0, 0

34 ,0 0 Conn. App. 1

Papantoniou v. Commissioner of Correction

could or would be helpful to the defense is irrelevant

to determining whether a conflict existed . . . .’’ We

disagree. First, the court’s statement is contrary to Santiago v. Commissioner of Correction, 87 Conn. App.

568, 591 n.20, 867 A.2d 70, cert. denied, 273 Conn. 930,

873 A.2d 997 (2005), in which this court noted that,

‘‘[i]n determining whether counsel’s performance was

adversely affected by an actual conflict of interest,

counsel’s testimony regarding the reasons for his or her

trial strategy is wholly proper evidence to be considered

. . . by the court.’’24

At the habeas trial, Conway testified that ‘‘the basic

facts’’ of the petitioner’s criminal case ‘‘were that someone came to collect a debt owed’’ by the victim. In

formulating a defense strategy, the petitioner gave Conway three different accounts of what transpired on

October 19, 2014. The petitioner’s third version—that

Coutermash had offered to give the petitioner a ride in

exchange for ‘‘a favor’’ of backing up Coutermash while

collecting a debt from the victim, who was ‘‘a pretty big

guy’’—fit best with the evidence. That defense strategy

placed Coutermash in the victim’s residence with a

knife, where he slashed the victim during an altercation

prior to fleeing. Consistent therewith, Conway pursued

a defense that centered around demonstrating that the

petitioner lacked the intent to commit a robbery and,

thus, could not be convicted of felony murder. Conway

testified that, for this strategy to have any chance of

success, he ‘‘had to get [Coutermash] placed [inside

the victim’s residence] somehow some way.’’ Conway

further testified that ‘‘the only person [he] really had

to fulfill that role of, sort of, an independent witness

was Samperi.’’ For that reason, Conway ‘‘was thrilled

As the United States Supreme Court noted in Sullivan, ‘‘[a]n attorney

representing two defendants in a criminal matter is in the best position

professionally and ethically to determine when a conflict of interest exists

or will probably develop in the course of a trial.’’ (Internal quotation marks

omitted.) Cuyler v. Sullivan, supra, 446 U.S. 347.

0, 0 CONNECTICUT LAW JOURNAL Page 33

0 Conn. App. 1 ,0 35

Papantoniou v. Commissioner of Correction

when the state said they were going to call him as

a witness.’’ Moreover, in light of the defense strategy

pursued at trial, Conway testified that he deliberately

declined to question Samperi about his prior convictions or pending cases on cross-examination because

Conway ‘‘wanted the jury to believe [Samperi’s] testimony because he was saying things that were favorable

to [the petitioner].’’ Conway believed that Samperi’s

testimony supported the defense theory that the crimes

were ‘‘not something that [the petitioner] would have

organized or had it in his mind or . . . taken the initiative on. [Samperi’s testimony] was there to show that

there had to be somebody else, [Coutermash] . . . that

had to be the driving force behind whatever went down’’

at the victim’s residence.

Second, ‘‘to amount to an unconstitutional lapse in

representation, an alternative defense not undertaken

must be ‘plausible’ and ‘viable,’ as well as in conflict

with counsel’s other interests.’’ Santiago v. Commissioner of Correction, 87 Conn. App. 568, 589, 867 A.2d

70, cert. denied, 273 Conn. 930, 873 A.2d 997 (2005);

see also Winkler v. Keane, 7 F.3d 304, 309 (2d Cir. 1993)

(‘‘[T]o prove adverse effect on the basis of what an

attorney failed to do, [a party] must demonstrate that

some plausible alternative defense strategy or tactic

might have been pursued. He need not show that the

defense would necessarily have been successful if it had

been used, but that it possessed sufficient substance

to be a viable alternative.’’ (Internal quotation marks

omitted.)), cert. denied, 511 U.S. 1022, 114 S. Ct. 1407,

128 L. Ed. 2d 79 (1994); United States v. Williams, 902

F.3d 1328, 1332–33 (11th Cir. 2018) (same). A determination that an alternative strategy or tactic is viable, in

turn, requires a showing that it would have meaningfully

assisted the client in some way. See, e.g., Bigelow v.

Commissioner of Correction, 146 Conn. App. 737, 744

n.4, 80 A.3d 84 (2013) (alternative strategy of placing

Page 34 CONNECTICUT LAW JOURNAL 0, 0

36 ,0 0 Conn. App. 1

Papantoniou v. Commissioner of Correction

blame on petitioner’s brother ‘‘was simply not a plausible, viable defense based on the facts of the case’’ (internal quotation marks omitted)).

In the present case, all of the evidence offered by

the state at the petitioner’s criminal trial, and the testimony of Vivian and Ashante in particular, pointed to

only one perpetrator in the homicide that occurred at

397 Circular Avenue on October 19, 2014. The petitioner, by contrast, testified at trial that both he and

Coutermash entered that residence because Coutermash needed to collect a debt, that a struggle subsequently ensued between himself and the victim, and

that the gun in the petitioner’s hand discharged during

that struggle.25 Samperi was the only witness who could

substantiate the petitioner’s account in any manner,

which he did in his testimony at the petitioner’s criminal

trial.26 In addition, Samperi’s testimony, coupled with

As this court recounted in the petitioner’s direct appeal: ‘‘[T]he [petitioner] testified at trial and was the final witness called by the defense. . . .

[He] testified that, on October 19, 2014, Coutermash told him that he needed

to ‘collect some money’ from someone. . . . [The petitioner] claimed that

when he and Coutermash arrived at 397 Circular Avenue, both of them

entered the victim’s apartment, and Coutermash demanded $400 from the

victim. The [petitioner] testified that he entered the victim’s apartment only

after Coutermash and the victim began fighting and when things were ‘getting

out of control . . . .’ Upon entering the apartment, the [petitioner] told the

victim: ‘[L]isten, just give [Coutermash] his money—you know—let me get

the hell out of here, just give him what you owe him, it’s gone far enough,

it’s out of control, just give him his money, you know.’ The [petitioner]

further testified that, immediately after he told the victim to give Coutermash

money, Coutermash fled the apartment. At that point, the [petitioner] claimed

that the victim charged at him, the two began to struggle over the gun in

his hand, and the gun ‘went off’ twice during the struggle.’’ (Citation omitted.)

State v. Papantoniou, supra, 185 Conn. App. 100–101.

At the petitioner’s criminal trial, Samperi testified that he spoke with

Coutermash the day after the victim’s murder and that Coutermash seemed

nervous. Samperi testified that Coutermash told him that ‘‘he fucked up’’

and that ‘‘he screwed up bad.’’ On cross-examination, Samperi also testified

that ‘‘[Coutermash] told me that he went there to collect a debt, he had the

fight with the guy.’’

In addition, Samperi testified that, prior to the victim’s murder, Coutermash and Marini had multiple conversations in his presence about robbing

the victim. Samperi testified that the petitioner was not present for those 0, 0 CONNECTICUT LAW JOURNAL Page 35

0 Conn. App. 1 ,0 37

Papantoniou v. Commissioner of Correction

Coutermash’s desire to collect a debt from the victim,

was the only evidence that cast doubt on the state’s

contention that the petitioner possessed the mental

state necessary to commit the underlying felony, which

in this case is burglary in the first degree, on which the

felony murder charge is predicated.

We agree with the respondent that the only alternative tactic identified by the petitioner—impeaching

Samperi’s testimony—would have left the petitioner

with no support for his version of events that placed

Coutermash inside the victim’s residence as an active

participant seeking to collect a debt. Such impeachment

is not a plausible alternative strategy because it in no

way would have supported an alternative defense to

the felony murder and burglary charges faced by the

petitioner. See Marshall v. Commissioner of Correction, supra, 184 Conn. App. 719–21 (failure to impeach

former client with pending charges insufficient to demonstrate conflict adversely affected performance). In

this case, there was no divergence with respect to the

interests of the petitioner and Conway regarding that

course of action.27 See United States v. Williams, 372

F.3d 96, 102 (2d Cir. 2004); State v. Davis, supra, 344

Conn. 134; Mercer v. Commissioner of Correction, 51

Conn. App. 638, 644, 724 A.2d 1130, cert. denied, 248

Conn. 907, 731 A.2d 309 (1999). We therefore conclude

that Conway’s failure to impeach Samperi did not

adversely affect his representation of the petitioner. To

the contrary, it demonstrates that Conway was acting

in the petitioner’s best interest with respect to the one

conversations. Samperi also identified a knife found at the crime scene as

one that looked like a knife he had given to Coutermash.

In its memorandum of decision, the habeas court found that the petitioner ‘‘thought Samperi would be very helpful [as a witness at his criminal

trial], especially providing an innocent explanation for the knife [recovered

at the scene].’’ The court also noted Conway’s testimony at the habeas trial

that the petitioner ‘‘wanted [Samperi] to testify’’ at his criminal trial. Page 36 CONNECTICUT LAW JOURNAL 0, 0

38 ,0 0 Conn. App. 1

Papantoniou v. Commissioner of Correction

witness who could corroborate the petitioner’s account

of what transpired on October 19, 2014.28

As Conway argued during closing argument, Samperi’s testimony was

‘‘consistent with what [the petitioner] testified. [Samperi] testified that he

talked to [Coutermash] within a day or so of what happened. Lifelong friends,

confidants . . . . [Samperi] had gotten wind of what had gone down, confronts [Coutermash]—dude, what happened? I fucked up. I went to go

collect—get some money and a fight broke out, I fucked up. Not we, I.

Consistent with [the petitioner’s] testimony. Four days later, after viewing

the news and all the stories associated, knowing that he’s a suspect, [Coutermash] attempts to control the narrative. Now he tells [Samperi] all right,

this is what happened, in greater detail . . . but that’s not as persuasive

as if he had said it moments afterwards perhaps. [Coutermash] is no dummy.

He knew based on the accounts in the paper and the fact that [the petitioner]

had told him that he left his hat in there and the sweatshirt, something

bad had happened, someone was going down for it, it wasn’t going to be

[Coutermash]; and he also knew the police would be talking to other people,

he wanted to get his story out there so they would tell them the same story.’’

Furthermore, in arguing that the victim had let the petitioner and Coutermash into his residence, Conway emphasized that there was no evidence

of forced entry, just banging on the door, based on the lack of damage to

the entry way. Conway also highlighted evidence that the victim’s wife

testified to the fact that the victim had one hour earlier asked his wife for

$400, from which he asked the jury to infer that the victim knew that

someone would be coming by for $400. He then argued that there was no

evidence that anyone owed the petitioner any money and that, ‘‘by all

accounts, [the petitioner] was a sad sack. Doesn’t have a car, walks everywhere, never explained by anybody, that $400, never said who the hell are

you and why are you asking for $400. It’s such a specific amount. . . . So,

there was no unlawful entry if he was standing outside and [Coutermash]

was invited in by [the victim]. That’s not unlawful entry. Remained in the

hallway until things got out of hand. They got out of hand because [Coutermash] made them get out of hand, hitting [the victim] in the head with

the butt of the knife and slashing, and at that point, [Coutermash] freaked

out and [the petitioner] says chill, chill, chill, stop. [The petitioner] didn’t

want to be a part of that; he just wanted to stop. He did say dude, just give

him his $400 and get the hell out of here . . . . He wanted to get the hell

out of there. [Coutermash] sees his opportunity, bolts out the door, [the

petitioner] turns, gun in hand, [the victim] lunges, and the events proceed

from there. [The petitioner] was trying to get out. He wanted to get out so

bad, he’s wiggling out of his sweatshirt. He couldn’t, [the victim] wouldn’t

let him. He didn’t want to remain there; he wanted to get the hell out of there.

‘‘Intent to rob, that’s . . . on the burglary, right? Enter or remain unlawfully . . . . That’s the first part, and the second, with the intent to commit

a crime therein. The crime alleged by the state was robbery. Again, I go

back, the $400, and the testimony from [Samperi] about what [Coutermash]

said and what [the petitioner] said. Ride with me, watch my back, I’m going

to collect a debt. Give me my $400. An hour before, [the victim] had asked 0, 0 CONNECTICUT LAW JOURNAL Page 37

0 Conn. App. 1 ,0 39

Papantoniou v. Commissioner of Correction

The court also found that an actual conflict of interest

adversely affected Conway’s performance due to his

failure to comply with certain Rules of Professional

Conduct, which required Conway to notify the petitioner in writing of his prior representation of Samperi.

We do not agree.

Although the Rules of Professional Conduct properly

can inform a court’s legal analysis, the rules themselves

are not the law. As our Supreme Court has explained,

‘‘[a]ttorney conduct may breach ethical standards . . .

without violating the sixth amendment right to counsel.’’ Diaz v. Commissioner of Correction, supra, 344

Conn. 389–90. Significantly, our Supreme Court has

clarified that, ‘‘although there undoubtedly is some

overlap, the constitutional right to effective assistance

of counsel, and the rules that govern attorney ethical

conduct serve fundamentally different purposes.’’ Id.,

390. The fundamental purpose of the Rules of Professional Conduct is to guide an attorney’s ethical conduct;

by contrast, the fundamental purpose of the sixth

amendment right to effective counsel is to ensure ‘‘a

fair trial based on competent representation.’’ (Internal

his wife for $400. Coincidence? You make the call. My $400. It’s no different

than if he had lent [a television] set to Larry, he went back and said give

me my [television] back . . . . He’s not trying to deprive another of their

property forever. No intent to rob on the part of [the petitioner]. . . . Only

one person had an intent in that incident, [Coutermash]. . . .

‘‘[The petitioner] is the perfect scapegoat and he’s not an angel . . . .

I’m not asking you to feel sorry for him. [Coutermash] thought very little

of him, [the petitioner] was a drunk at the time barely getting by, relying

on others. His boss asked him to come in and watch my back and I’ll pay

you some of the money that we owe you—he hadn’t been paid for the month

of October. . . . Coutermash was the alpha dog here, [the petitioner] was

the mutt, and . . . at the last minute, here, hold [the gun]. . . . [Coutermash] planned this, he dressed all in black, he brought the gun, he bought

the gun, he was owed money, he drove, he made admissions to [Samperi],

he covered his tracks by sanitizing things, he took a . . . deal that took

220 years off of the table by sitting in that chair right there and talking to

you. . . .’’

Page 38 CONNECTICUT LAW JOURNAL 0, 0

40 ,0 0 Conn. App. 1

Papantoniou v. Commissioner of Correction

quotation marks omitted.) Id.; see also Nix v. Whiteside,

475 U.S. 157, 165, 106 S. Ct. 988, 89 L. Ed. 2d 123 (1986)

(‘‘breach of an ethical standard does not necessarily

make out a denial of the [s]ixth [a]mendment guarantee

of assistance of counsel’’).

In its memorandum of decision, the court began its

analysis of the petitioner’s sixth amendment conflict of

interest claim by noting rules 1.7 and 1.9 of the Rules

of Professional Conduct, as well as the commentary

thereto.29 The court then declared: ‘‘The present habeas

Rule 1.7 of the Rules of Professional Conduct provides: ‘‘(a) Except as

provided in subsection (b), a lawyer shall not represent a client if the

representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

‘‘(1) the representation of one client will be directly adverse to another

client; or

‘‘(2) there is a significant risk that the representation of one or more

clients will be materially limited by the lawyer’s responsibilities to another

client, a former client or a third person or by a personal interest of the lawyer.

‘‘(b) Notwithstanding the existence of a concurrent conflict of interest

under subsection (a), a lawyer may represent a client if:

‘‘(1) the lawyer reasonably believes that the lawyer will be able to provide

competent and diligent representation to each affected client;

‘‘(2) the representation is not prohibited by law;

‘‘(3) the representation does not involve the assertion of a claim by one

client against another client represented by the lawyer in the same litigation

or the same proceeding before any tribunal; and

‘‘(4) each affected client gives informed consent, confirmed in writing.’’

Rule 1.9 of the Rules of Professional Conduct provides in relevant part:

‘‘(a) A lawyer who has formerly represented a client in a matter shall not

thereafter represent another person in the same or a substantially related

matter in which that person’s interests are materially adverse to the interests

of the former client unless the former client gives informed consent, confirmed in writing. . . .

‘‘(c) A lawyer who has formerly represented a client in a matter . . .

shall not thereafter:

‘‘(1) use information relating to the representation to the disadvantage of

the former client except as these Rules would permit or require with respect

to a client, or when the information has become generally known; or

‘‘(2) reveal information relating to the representation except as these

Rules would permit or require with respect to a client.’’

The commentary to rule 1.9 provides in relevant part: ‘‘The scope of a

‘matter’ for purposes of this [r]ule depends on the facts of a particular

situation or transaction. The lawyer’s involvement in a matter can also be

a question of degree. When a lawyer has been directly involved in a specific 0, 0 CONNECTICUT LAW JOURNAL Page 39

0 Conn. App. 1 ,0 41

Papantoniou v. Commissioner of Correction

corpus matter is a cautionary tale because it is a dispute

caused by ambiguities created by Conway operating

under an undisclosed actual or potential conflict of

interest. Conway did not, in contravention of rule 1.7

[of the Rules of Professional Conduct], obtain written

consent from [the petitioner]. The lack of full disclosure

to [the petitioner], opposing counsel, and the court demonstrates that [the petitioner] was deprived of his right

to a fair criminal trial because Conway operated under

a conflict of interest.’’30 In discussing Conway’s failure

to comply with those Rules of Professional Conduct,

the court stated that ‘‘[t]he consent confirmed in writing

is crucial.’’ Throughout the remainder of its decision,

the court repeatedly emphasized Conway’s failure to

disclose his representation of Samperi to the petitioner

in writing.31

transaction, subsequent representation of other clients with materially

adverse interests in that transaction clearly is prohibited. . . .

‘‘Matters are ‘substantially related’ for purposes of this [r]ule if they involve

the same transaction or legal dispute or if there otherwise is a substantial

risk that confidential factual information as would normally have been

obtained in the prior representation would materially advance the client’s

position in the subsequent matter.’’ Rules of Professional Conduct 1.9, commentary.

At the habeas trial, Conway testified that he informed the petitioner of

his prior representation of Samperi and that the petitioner was ‘‘well aware

of the fact that [he had] represented Samperi.’’ In its memorandum of decision, the court noted that this testimony was contradicted by that of the

petitioner. The court nevertheless did not resolve that critical factual discrepancy. Instead, it stated: ‘‘While it is unclear precisely what was said between

Conway and [the petitioner] about Samperi, it is clear that Conway did not

disclose his conflict in writing to [the petitioner] . . . .’’

For example, on page twenty-seven of its decision, the court stated that

Conway ‘‘did not disclose his conflict in writing’’ and ‘‘obtain [the petitioner’s] written consent to continue with Conway after such a disclosure.’’ On

page twenty-eight of its decision, the court stated that Conway’s assessment

of the helpfulness of Samperi’s testimony at the petitioner’s criminal trial

‘‘is irrelevant to determining whether a conflict existed and disclosing it to

[the petitioner] in writing.’’ On page twenty-nine of its decision, the court

stated: ‘‘Conway’s failure to disclose his conflict in writing foreclosed [the

petitioner’s] opportunity to proceed with a conflict that he had properly

waived.’’ On page thirty-two of its decision, the court stated: ‘‘Conway failed

to properly disclose this conflict of interest to [the petitioner] in writing.’’ Page 40 CONNECTICUT LAW JOURNAL 0, 0

42 ,0 0 Conn. App. 1

Papantoniou v. Commissioner of Correction

We are aware of no authority, from Connecticut or

elsewhere, which holds that a petitioner in a habeas

action may satisfy his burden under Sullivan of demonstrating that an actual conflict of interest adversely

affected his counsel’s representation by establishing a

breach of the Rules of Professional Conduct generally,

or the duty under rule 1.7 to disclose a potential conflict

of interest to a client in writing specifically. In Diaz v.

Commissioner of Correction, supra, 344 Conn. 365, our

Supreme Court addressed that issue and stated: ‘‘[A]

petitioner carries a higher burden in establishing a sixth

amendment violation on the basis of an alleged conflict

of interest than would be necessary to establish that an

attorney ran afoul of the Rules of Professional Conduct.

Specifically, in order to establish a violation of his constitutional right, the petitioner must establish that an

actual conflict of interest adversely impacted the representation . . . and not merely that there was a significant risk of a material limitation [pursuant to rule 1.7

(a) (2)].’’ (Citation omitted.) Id., 389 n.11. Diaz thus

instructs that whether an attorney complied with the

Rules of Professional Conduct is not the relevant

inquiry. Although a failure to comply with those rules

is ‘‘unbecoming of an officer of the court’’; id., 390; and

cannot be condoned, the relevant inquiry for purposes

of an ineffective assistance of counsel claim is whether

the petitioner established that counsel ‘‘was burdened

by an actual conflict of interest that adversely affected

[his] performance.’’ State v. Davis, supra, 344 Conn. 126.

In light of the foregoing, we conclude that proof that

an attorney violated rule 1.7 of the Rules of Professional

Conduct does not suffice to establish a violation of a

client’s sixth amendment right to effective assistance

of counsel. To prevail on such a claim, a party ‘‘must

demonstrate that an actual conflict of interest adversely

affected his lawyer’s performance.’’ Cuyler v. Sullivan,

supra, 446 U.S. 348. That burden is satisfied by proof

0, 0 CONNECTICUT LAW JOURNAL Page 41

0 Conn. App. 1 ,0 43

Papantoniou v. Commissioner of Correction

that an actual conflict of interest existed; see State v.

Davis, supra, 344 Conn. 133–34; and that ‘‘some plausible alternative defense strategy or tactic might have

been pursued but was not and that the alternative

defense was inherently in conflict with or not undertaken due to the attorney’s other loyalties or interests.’’

(Internal quotation marks omitted.) Diaz v. Commissioner of Correction, supra, 344 Conn. 378. The petitioner in the present case did not meet that burden. We

therefore conclude that the habeas court improperly

determined that the petitioner’s sixth amendment right

to effective assistance of counsel was violated.

The judgment is reversed with respect to counts one

and two of the second amended petition alleging ineffective assistance of counsel and the case is remanded

with direction to deny the petition for a writ of

habeas corpus.

In this opinion the other judges concurred.

Papantoniou v. Commissioner of Correction

Summary · law.co

Key issues

Procedural posture

Authorities cited

Opinion · public domain