PATTON E. DUNCAN
COMMISSIONER OF CORRECTION
October 25, 2016
from Superior Court, judicial district of Tolland, Fuger, J.
A. Sullivan, assigned counsel, for the appellant
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.
DiPENTIMA, C. J.
petitioner, Patton E. Duncan, a citizen of Jamaica,
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.
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,  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
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
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
29, 2011, the petitioner appeared for sentencing with
$3000. 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.
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.
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.
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.
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.
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.
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.
court, Fuger, J., held the habeas trial on September
3, 2014, during which Freeman, Goulet-Case, Attorney Anthony
Collins, an expert in immigration law,  and the
petitioner testified. 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.
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.
petitioner claims that the habeas court abused its discretion
in denying his petition for certification to
appeal 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
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.
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).
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,
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
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).
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, ...