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Duncan v. Commissioner of Correction

Court of Appeals of Connecticut

March 21, 2017

PATTON E. DUNCAN
v.
COMMISSIONER OF CORRECTION

          Argued October 25, 2016

         Appeal from Superior Court, judicial district of Tolland, Fuger, J.

          Craig A. Sullivan, assigned counsel, for the appellant (petitioner).

          Nancy L. Walker, deputy assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Jo Anne Sulik, supervisory assistant state's attorney, for the appellee (respondent).

          DiPentima, C. J., and Keller and West, Js.

          OPINION

          DiPENTIMA, C. J.

         The petitioner, Patton E. Duncan, a citizen of Jamaica, [1] appeals following the denial of his petition for certification to appeal 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 (1) abused its discretion in denying certification to appeal, (2) improperly concluded that he had received the effective assistance of counsel and (3) improperly denied his due process claim that his pleas were not made knowingly and voluntarily. Because the petitioner did not demonstrate that the habeas court abused its discretion in denying the petition for certification to appeal, we dismiss the appeal.

         The following facts and procedural history are relevant to this appeal. The petitioner was charged in two separate informations as a result of events that had occurred at different times in different locations. On April 20, 2011, the petitioner appeared before the court, Vitale, J., and pleaded guilty, pursuant to the Alford doctrine, [2] to one count of larceny in the third degree (Hartford case). At this time, the prosecutor recited the facts underlying this plea: ‘‘Your Honor, this matter goes back to November of 2009. At that time, [the petitioner] was apparently estranged from his wife . . . . A check came into the residence that they were sharing at that time made out to [the petitioner's wife] in the amount of $6000. The [petitioner] endorsed that check, deposited it to his own account, and took out $6000 of the funds for his own use, thus depriving his estranged wife of the money.''

         The prosecutor then stated that if the petitioner paid $6000 to his estranged wife, then the state would agree to vacate the plea and nolle the larceny charge. During the canvass, the court informed the petitioner that the case would be continued for sentencing until July 29, 2011. Further, it instructed that if the petitioner appeared on that day with a certified bank check in the amount of $6000, the guilty plea would be vacated and the state would nolle the larceny charge. The court warned the petitioner that if he did not have the $6000, he would be sentenced to up to fifteen months incarceration.

         The court then asked the following question to the petitioner: ‘‘Do you understand, sir, if you are not a United States citizen this could result in your being deported, excluded from the United States or denied naturalization; do you understand that?'' The petitioner replied: ‘‘Yes, Your Honor.'' The court also expressly warned the petitioner that it would not grant any additional continuances past July 29, 2011. The court then found that the petitioner's plea was knowingly and voluntarily made with the assistance of counsel, Attorney Deron Freeman.

         On July 29, 2011, the petitioner appeared for sentencing with $3000.[3] The state requested a period of nine months incarceration. Freeman argued that the petitioner had used the $6000 to maintain the household while his estranged wife was incarcerated. Freeman further requested a suspended sentence. After reviewing the case file, the court sentenced the petitioner to fifteen months incarceration, execution suspended after sixty days, and three years of probation. The court also ordered full restitution within the first two years of probation.

         On September 15, 2011, the petitioner appeared before the court, Sheridan, J., to plead guilty to assault in the third degree in violation of General Statutes § 53a-61 and reckless endangerment in the first degree in violation of General Statutes § 53a-63 (New Britain case). The prosecutor recited the following factual basis for the pleas: The petitioner was involved in a physical altercation with his girlfriend. At this time, the petitioner struck the victim, causing her pain and injuries, while she was holding her one year old son.

         During the plea canvass, the court stated: ‘‘All right, and if you're not a U.S. citizen, with this conviction you may face consequences of deportation, exclusion for readmission or denial of naturalization pursuant to federal law.'' The petitioner indicated that he understood these consequences of his guilty plea. The court then found that the plea was voluntarily and knowingly made with the assistance of competent counsel. The court ordered consecutive sentences of one year of incarceration, execution suspended, with two years of probation, for the assault in the third degree and reckless endangerment charges. The defendant was represented by Attorney Kelly Goulet-Case, an assistant public defender.

         On October 11, 2011, Judge Sheridan held a hearing on the petitioner's motion for modification in the New Britain case. During that proceeding, the prosecutor noted that she had no objection to the plea on the reckless endangerment charge being vacated. She further agreed to nolle that charge, leaving only the conviction of assault in the third degree in the New Britain case. The court granted the petitioner's motion for modification.

         On October 5, 2011, the United States Department of Homeland Security commenced removal proceedings against the petitioner on the ground that his conviction of larceny in the third degree constituted an aggravated felony pursuant to 8 U.S.C. § 1227 (a) (2) (A) (iii). On February 29, 2012, an immigration judge ordered the petitioner removed to Jamaica. The United States Board of Immigration Appeals dismissed the appeal from the order of the immigration judge. Thereafter, the petitioner was deported from the United States to Jamaica in February, 2013.[4]

         In November, 2011, the petitioner commenced the present action. The operative petition was filed on April 22, 2014. In count one, the petitioner alleged that his right to due process was violated because his pleas in the Hartford and New Britain cases were not knowingly, intelligently and voluntarily made. The petitioner further claimed that he did not know or understand the probability of deportation and/or removal under the terms of his plea agreements.

         In counts two and three, the petitioner claimed that Freeman and Goulet-Case provided ineffective assistance of counsel in the Hartford and New Britain cases, respectively. Specifically, he alleged that both of his attorneys failed (1) to research adequately the legal issue of the petitioner's immigration status and the possibility of deportation and/or removal as a result of the plea agreements, (2) to advise the petitioner that larceny is an aggravated felony for immigration purposes, subjecting him to automatic removal and ineligibility for cancelation of removal and (3) to make the petitioner's immigration status part of the plea bargaining process. The petitioner also alleged that but for the deficient performance of his attorneys, he would not have pleaded guilty and instead insisted on going to trial.

         The court, Fuger, J., held the habeas trial on September 3, 2014, during which Freeman, Goulet-Case, Attorney Anthony Collins, an expert in immigration law, [5] and the petitioner testified.[6] On September 18, 2014, the court issued a memorandum of decision denying the petition for a writ of habeas corpus. With respect to the ineffective assistance of counsel claim against Freeman in the Hartford case, the habeas court concluded that the petitioner had failed to establish deficient performance and prejudice. With respect to the New Britain case, the habeas court determined that Goulet-Case performed deficiently by assuming that the petitioner was a United States citizen. The habeas court then noted that the New Britain case ‘‘played no part in the immigration issue, and there was no showing of any other prejudice incurring to the petitioner . . . .'' Although the court did not explicitly address the petitioner's due process claim, it denied the petition for a writ of habeas corpus and the subsequent petition for certification to appeal.

         Following the filing of this appeal, the petitioner filed a motion for articulation, requesting that the court address his due process claim. After the habeas court denied this motion, the petitioner filed a motion for review with this court. We granted that motion and the relief requested, ordering the habeas court to articulate whether it had denied count one of the habeas petition and, if so, on what basis. On October 22, 2015, the habeas court issued its articulation. The court explained that the petitioner's due process claim was ‘‘wholly dependent on the claims alleged in the other two counts. . . . Stated somewhat differently, the petitioner cannot prevail on the claim in count one, as it is factually and legally pleaded, without also proving the claims in counts two and three.'' The court further clarified that the petitioner's due process claim implicitly had been denied on the same grounds as the ineffective assistance of counsel claims in counts two and three of the operative habeas petition. Additional facts will be set forth as necessary.

         The petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal[7] from the denial of his petition for a writ of habeas corpus with respect to his claims of ineffective assistance of counsel and due process violations. Specifically, he argues that because these issues are debatable among jurists of reason, a court could resolve the issues differently or the issues should proceed further, the habeas court abused its discretion in denying his petition to appeal.

         ‘‘Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, [the petitioner] must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the merits. . . . To prove that the denial of his petition for certification to appeal constituted an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous. In other words, we review the petitioner's substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria . . . adopted by [our Supreme Court] for determining the propriety of the habeas court's denial of the petition for certification.'' (Citations omitted; internal quotation marks omitted.) Sanders v. Commissioner of Correction, 169 Conn.App. 813, 821-22, A.3d (2016); see also Vazquez v. Commissioner of Correction, 123 Conn.App. 424, 428-29, 1 A.3d 1242 (2010), cert. denied, 302 Conn. 901, 23 A.3d 1241 (2011). With these principles in mind, we turn to the substantive claims of the petitioner.

         I

         The petitioner claims that the habeas court improperly concluded that he received the effective assistance of counsel. Specifically, he argues that the court improperly determined that (1) Freeman did not provide deficient performance and (2) the petitioner was not prejudiced in both the Hartford case and by Goulet-Casein the New Britain case. We agree with the petitioner's first argument. With respect to the issue of prejudice in both the Hartford and New Britain cases, we conclude that the petitioner's appellate argument is unavailing and, therefore, his claims of ineffective assistance of counsel must fail. As a result, we conclude that the habeas court did not abuse its discretion in denying certification to appeal from the denial of the petition for a writ of habeas corpus. See Sanders v. Commissioner of Correction, supra, 169 Conn.App. 827-38 (reviewing court considered merits of petitioner's claims as to performance and prejudice and concluded that because there was no prejudice, petitioner could not establish abuse of discretion in denial of petition for certification to appeal).

         As a preliminary matter, we set forth the legal principles and the standard of review that guide our analysis. The sixth amendment to the United States constitution, made applicable to the states through the due process clause of the fourteenth amendment, affords criminal defendants the right to effective assistance of counsel. Davis v. Commissioner of Correction, 319 Conn. 548, 554, 126 A.3d 538 (2015), cert. denied sub nom. Semple v. Davis, U.S., 136 S.Ct. 1676, 194 L.Ed.2d 801 (2016); see also Thiersaint v. Commissioner of Correction, 316 Conn. 89, 100, 111 A.3d 829 (2015) (criminal defendant constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings). Although a challenge to the facts found by the habeas court is reviewed under the clearly erroneous standard, ‘‘whether those facts constituted a violation of the petitioner's rights under the sixth amendment is a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case. . . . As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.'' (Internal quotation marks omitted.) Gonzalez v. Commissioner of Correction, 308 Conn. 463, 469-70, 68 A.3d 624, cert. denied sub nom. Dzurenda v. Gonzalez, U.S., 134 S.Ct. 639, 187 L.Ed.2d 445 (2013); Helmedach v. Commissioner of Correction, 168 Conn.App. 439, 451, 148 A.3d 1105, cert. granted on other grounds, 323 Conn. 941, A.3d (2016).

         It is well established that the failure to adequately advise a client regarding a plea offer from the state can form the basis for a sixth amendment claim of ineffective assistance of counsel. ‘‘The United States Supreme Court, long before its recent decisions in Missouri v. Frye, U.S., 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), and Lafler v. Cooper, U.S., 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), recognized that the two part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), applies to ineffective assistance of counsel claims arising out of the plea negotiation stage. Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) . . . .'' (Citation omitted.) Barlow v. Commissioner of Correction, 150 Conn.App. 781, 792, 93 A.3d 165 (2014); see also Helmedach v. Commissioner of Correction, supra, 168 Conn.App. 452.

         Finally, we recite the familiar test that governs whether a petitioner's constitutional right to the effective assistance of counsel has been violated. ‘‘To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, [supra, 466 U.S. 687]. . . . The petitioner has the burden to establish that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance. . . . To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed . . . by the [s]ixth [a]mendment. . . . It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action. Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel's acts or omissions were so serious that counsel was not functioning as the counsel guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial.'' (Citations omitted; emphasis in original; internal quotation marks omitted.) Jones v. Commissioner of Correction, 169 Conn.App. 405, 415-16, A.3d (2016), cert. denied, 324 Conn. 909, A.3d (2017); see also Hanson v. Commissioner of Correction, 169 Conn.App. 317, 325, 150 A.3d 234 (2016), cert. denied, 324 Conn. 910, A.3d (2017).

         ‘‘For claims of ineffective assistance of counsel arising out of the plea process, the United States Supreme Court has modified the second prong of the Strickland test to require that the petitioner produce evidence that there is a reasonable probability that, but for counsel's errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial. . . . An ineffective assistance of counsel claim will succeed only if both prongs [of Strickland] are satisfied. . . . [S]ee also Hill v.Lockhart, [supra, 474 U.S. 59] (modifying Strickland prejudice analysis in cases in which petitioner entered guilty plea). It is axiomatic that courts may decide against a petitioner on either prong [of the Strickland test], whichever is easier. Lewis v.Commissioner of Correction, 165 Conn.App. 441, 451, 139 A.3d 759, cert. denied, 322 Conn. 901, 138 A.3d 931 (2016), citing Strickland v.Washington, supra, 466 U.S. 697 (a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the [petitioner]).'' (Citation omitted; internal quotation marks omitted.) Flomo v.Commissioner of Correction, 169 Conn.App. 266, 278, 149 A.3d 185 (2016), cert. denied, 324 Conn. 906, ...


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