September 13, 2016
from Superior Court, judicial district of Tolland, Cobb, J.
A. Barber, assigned counsel, for the appellant (petitioner).
Hanna, assistant state's attorney, with whom, on the
brief, were Gail P. Hardy, state's attorney, David M.
Carlucci, special deputy assistant state's attorney, and
Leon F. Dalbec, Jr., former senior assistant state's
attorney, for the appellee (respondent).
Alvord, Prescott and Harper, Js.
petitioner, Henry Flomo, appeals from the judgment of the
habeas court denying his petition for a writ of habeas
corpus. On appeal, the petitioner claims that the
habeas court improperly rejected his claims that (1) he
received ineffective assistance of counsel due to his
attorney's failure to advise him properly of the
immigration consequences of his guilty plea in accordance
with Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct.
1473, 176 L.Ed.2d 284 (2010), and (2) his guilty plea was not
made knowingly, intelligently, and voluntarily because the
trial court failed to ensure that he fully understood the
precise immigration consequences of his plea. We conclude
that the habeas court properly rejected the petitioner's
ineffective assistance of counsel claim on the ground that he
failed to demonstrate prejudice, as required under the test
articulated in Strickland v. Washington, 466 U.S.
668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Additionally, the petitioner's second claim fails as a
matter of law because immigration and naturalization
consequences of a plea, although often significant, are not
of a constitutional magnitude for purposes of evaluating
whether a plea is knowing and voluntary. See State v.
Malcolm, 257 Conn. 653, 663 n.12, 778 A.2d 134 (2001).
Accordingly, we affirm the judgment of the habeas court.
record reveals the following relevant facts and procedural
history. The petitioner is a citizen of Liberia who was
admitted to this country in 2010 as a permanent legal
resident. He was arrested in July, 2013, on charges
stemming from an incident that occurred on March 7, 2013. As
found by the habeas court, at the time of the incident,
‘‘[t]he petitioner was a youth leader at the
fifteen year old victim's church. The petitioner picked
[the victim] up after she had requested a ride and took her
to his apartment, where he had some physical contact with
her, and asked her for sex, which she refused.'' The
petitioner initially was charged with attempt to commit
sexual assault in the first degree in violation of General
Statutes § 53a-70 (a) (1), sexual assault in the third
degree in violation of General Statutes § 53a-72a (a)
(1), and risk of injury to a child in violation of General
Statutes § 53-21 (a) (2). If convicted on all three
charges, the petitioner faced a possible maximum sentence of
forty-five years of incarceration.
court appearance on October 15, 2013, the court informed the
petitioner that the state had extended a plea offer, his
defense counsel, RichardE. Cohen, would explain the offer to
him, and he would have until November 12, 2013, to accept or
to reject the plea offer. In a letter to the petitioner dated
October 29, 2013, Cohen memorialized that he had spoken with
the petitioner regarding the pending charges, the maximum
penalty that he faced if convicted of those charges, and the
state's plea offer. According to Cohen's letter, if
the petitioner agreed to plead guilty to one count of sexual
assault in the third degree, the state would recommend a
sentence of five years, execution suspended after one year,
followed by ten years of probation. Cohen further stated in
the letter: ‘‘We also discussed immigration
consequences. You would most likely be deported after serving
your sentence.'' He ended the letter as follows:
‘‘I am inclined to advise you to accept the
offer, although I will try to obtain a better
prior to the petitioner's November 12, 2013 report back
date, the state changed the terms of the plea offer. Instead
of requiring the petitioner to plead guilty to sexual assault
in the third degree, the state offered to recommend a plea
agreement to the risk of injury count. Counsel met with the
petitioner to discuss this new plea offer, but, as reported
to the court on the record, the petitioner
‘‘remained persistent and consistent''
that he did not commit any of the charged offenses. Having
rejected the state's plea offer at that time, the court
placed the matter on the docket for a trial.
on February 6, 2014, the parties appeared before the court,
Alexander, J., having reached a plea deal.
Pursuant to the new agreement, in exchange for the
petitioner's guilty plea, the state agreed to file a
substitute information charging the petitioner only with risk
of injury to a child in violation of § 53-21 (a) (1),
to recommend a sentence of five years of incarceration,
suspended after one year, followed by three years of
probation with special conditions. Following a plea canvass,
the court accepted the petitioner's guilty plea under the
Alford doctrine to the risk of injury charge and
sentenced him in accordance with the terms of the plea
of the plea canvass, the court inquired whether the
petitioner knew that there were potential immigration
consequences of his plea. The following colloquy occurred:
‘‘The Court: If you are not a citizen, a
conviction of any crime could result in deportation,
exclusion from admission, denial of your naturalization
rights pursuant to the laws of the United States. Do you
understand that consequence, if it applies to you?
‘‘The Petitioner: Yes, Your Honor.
‘‘The Court: Mr. Cohen, have you discussed that
consequence with [the petitioner], if it applies?
‘‘[Defense Counsel]: I did. It does apply, and
we've discussed this several times in great detail, so he
is aware that there could be some immigration issues here.
‘‘The Court: All right. Do you need to ask your
lawyer anything more about that issue atall before Igo
forward, or are you all set?
‘‘The Petitioner: Yeah.
‘‘The Court: Take a minute. Are you ...