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Ramos v. Commissioner of Correction

Court of Appeals of Connecticut

April 18, 2017

JULIO RAMOS
v.
COMMISSIONER OF CORRECTION

          Argued December 2, 2016

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

          Mark M. Rembish, assigned counsel, for the appellant (petitioner).

          Rita M. Shair, senior assistant state's attorney, with whom were Gail P. Hardy, state's attorney, and, on the brief, Lisamaria T. Proscino, special deputy assistant state's attorney, and Vernon D. Oliver, former assistant state's attorney, for the appellee (respondent).

          DiPentima, C. J., and Beach and Sheldon, Js. [*]

          OPINION

          SHELDON, J.

         The petitioner, Julio Ramos, appeals, following the denial of his petition for certification to appeal, from the judgment of the habeas court dismissing his second amended petition for a writ of habeas corpus in this action. In that operative petition, the petitioner challenged, on the ground of ineffective assistance of counsel, the legality of his custody under judgments of conviction rendered against him in 1997, upon his negotiated pleas of guilty to three counts of robbery in the first degree in violation of General Statutes § 53a-134, one count of felony murder in violation of General Statutes § 53a-54c, and one count of attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134. On appeal, the petitioner argues that the habeas court erred in rejecting, and later abused its discretion in denying, his petition for certification to appeal from the rejection of his three part claim that his challenged guilty pleas were not entered intelligently and voluntarily due to ineffective assistance of counsel. He asserts, more particularly, that his pleas were not entered intelligently or voluntarily because his trial counsel (1) failed to advise him of the affirmative defense of mental disease or defect, which he assertedly could have raised as to all of his pending charges under General Statutes § 53a-13, based upon a misinformed evaluation of his mental capacity at the time of the charged offenses by a forensic psychiatrist to whom she accidentally gave the medical records of a different inmate for the purpose of making that evaluation; (2) failed to conduct an adequate investigation as to the potential viability of the defense of lack of intent to commit robbery due to voluntary intoxication, which he also could have raised as to all pending charges under General Statutes § 53a-7, before advising him to plead guilty to those charges; and (3) advised him not to inform the trial judge that he had taken prescription drugs on the day of his guilty pleas and then failed to correct the record when, on the basis of her advice, he denied such drug use in response to the judge's questions during the plea proceeding. We dismiss the appeal.

         The following factual and procedural history is relevant to our resolution of this appeal. On May 6, 1997, the petitioner pleaded guilty to five charges based on his admitted involvement in five similar incidents in June, 1996. In each such incident, the petitioner used force and violence against one or more employees of a commercial establishment in an effort to steal money to fund his addiction to and daily use of heroin[1] and ‘‘illy.''[2] The charges to which he entered his guilty pleas, as previously noted, were: three counts of robbery in the first degree, in connection with separate incidents on June 2, 15, and 26, 1996; one count of felony murder, in connection with a later incident on June 27, 1996; and one count of attempt to commit robbery in the first degree, in connection with a final incident on June 30, 1996. During the plea proceeding, the prosecutor set forth the following factual bases for the charges to which the petitioner was entering his pleas. On June 2, 15, and 26, 1996, the petitioner committed three armed robberies in a substantially similar manner. On each of those dates, the petitioner entered the convenience store of a Mobil gas station on Washington Street in Hartford, pretended to select items for purchase, then produced a handgun and demanded money from the cashier. In each such incident, the petitioner walked behind the counter of the store, pistol-whipped the clerk, then took money from the cash register before fleeing from the store on foot. Thereafter, on the night of June 27, 1996, the petitioner and his heroin dealer, Frederick Wright, agreed to rob Dan's Shell Station in West Hartford to obtain money to buy drugs. After Wright parked a borrowed car in a darkened area away from the store, the petitioner entered the store, walked behind the counter, and struck the cashier in the head with a pistol. During this assault, the petitioner shot and killed the cashier before taking money from the cash register and fleeing from the store on foot.[3] Three days later, on June 30, 1996, the petitioner entered another convenience store in Hartford and, once again pretended to select items for purchase, then walked behind the counter, produced a handgun and approached the clerk. At that point, however, the clerk attempted to grab the petitioner's gun and a struggle ensued. Although the petitioner struck the clerk several times in the head, the clerk surrendered no property to the petitioner, who eventually dropped his pistol and fled from the scene without taking anything. The petitioner was arrested within minutes of this attempted robbery. After being treated for injuries he sustained while he was being arrested, the petitioner returned to the Hartford police station, where he waived his Miranda rights[4] and admitted his involvement in each of the previously described incidents, including the June 27 robbery and shooting in West Hartford.

         After he was arrested and gave his self-incriminating statement, the petitioner was presented in court, where he applied for the services of the public defender. Upon the granting of his application, Attorney Karen A. Goodrow was appointed to represent him. Over the course of the following year, Goodrow met with the petitioner several times to discuss his case. During one of those meetings, the petitioner informed Goodrow that he had used both heroin and ‘‘illy'' every day in June, 1996, and that he had been under the influence of the two drugs during each of the previously described incidents. He further claimed that, because he had used heroin and ‘‘illy'' on the night of June 27, 1996, he could not specifically remember robbing the store where the clerk had been shot and killed, or shooting the clerk. The petitioner also informed Goodrow that sometime between the June 27 robbery and shooting and the June 30 attempted robbery that immediately preceded his arrest, he had smoked ‘‘illy'' and attempted to commit suicide by placing a single round of ammunition into a revolver and pulling the trigger several times.

         During the habeas trial, Goodrow testified that when she was first appointed to represent the petitioner, she was unfamiliar with the drug ‘‘illy, '' because the petitioner was the first client she had ever represented who claimed to have committed a crime while under the influence of that drug. Accordingly, after she learned of the petitioner's claim that he had continuously used a combination of heroin and ‘‘illy'' throughout the month of June, 1996, Goodrow explored the viability of several possible defenses to the charged offenses based upon the petitioner's claimed use of that drug, in combination with heroin, at the time of his allegedly criminal conduct, including the affirmative defense of mental disease or defect under § 53a-13[5] and the defense of lack of intent to commit robbery by reason of voluntary intoxication under § 53a-7.[6]

         To that end, Goodrow hired Dr. Peter Zeman, an experienced forensic psychiatrist, to conduct a psychiatric evaluation of the petitioner in order to assess the strength of those possible defenses and to determine ‘‘whether or not there was any mitigation evidence or evidence of intoxication.'' Prior to Zeman's evaluation, Goodrow received an authorization from the petitioner to obtain his medical records from the Department of Correction (DOC). The records she received pursuant to the authorization, however, belonged to a different inmate, who had the same first and last names as the petitioner but a different date of birth.[7] Failing to recognize that she had received medical records for the wrong Julio Ramos, Goodrow forwarded those records, along with the petitioner's own hospital records, [8] to Zeman for his review. Sometime after receiving such records, Zeman met with the petitioner and performed a twenty minute psychiatric evaluation of him.

         On April 10, 1997, Goodrow met with Zeman to discuss his evaluation of the petitioner. During that meeting, Zeman informed Goodrow that he did not believe that the petitioner was psychotic at the time of the incidents here at issue, and thus that he did not believe that a defense of mental defect or disease was supported by the evidence. Zeman also informed Goodrow that, although he had little experience with the drug ‘‘illy, '' he did not believe that the petitioner's use of ‘‘illy'' affected his state of consciousness to such a degree that he lacked the ability to form the intent required to commit robbery in any of the five incidents upon which the charges against him were based. In reliance upon Zeman's opinions, Goodrow abandoned her pursuit of both the affirmative defense of mental disease or defect and the defense of lack of intent to commit robbery due to voluntary intoxication. Consequently, Goodrow did not ask Zeman to memorialize his opinions in a formal report.

         Goodrow then entered into plea negotiations with the state. In light of the number and severity of the crimes with which he was charged, the petitioner faced a total exposure of over 140 years in prison if he were convicted on all charges. On April 15, 1997, Goodrow received an offer from the state, under which it would agree to cap the petitioner's sentence at a maximum of fifty years with the right to argue for a lesser sentence, if the petitioner would agree to plead guilty to three counts of robbery in the first degree, one count of felony murder, and one count of attempt to commit robbery in the first degree. On May 6, 1997, Goodrow presented the state's offer to the petitioner and advised him, in light of the apparent strength of the state's evidence and the lack of any viable defense based upon his voluntary intoxication, that he should accept it. That afternoon, the petitioner appeared before the court, Schimelman, J., where, upon being canvassed, he pleaded guilty to the five charges in accordance with the state's offer. On July 11, 1997, the petitioner was sentenced by the trial court, Espinosa, J., to fifty years in prison on the charge of felony murder, twenty years in prison on the charge of attempt to commit robbery in the first degree, and twenty years in prison on each of the three charges of robbery in the first degree. All of the petitioner's prison sentences were ordered to be served concurrently with one another, for a total effective sentence of fifty years. The petitioner did not appeal from his convictions.

         On December 17, 2009, the petitioner commenced the present habeas corpus action on the ground that he had received ineffective assistance of counsel in connection with his guilty pleas, and thus that those pleas had not been entered intelligently and voluntarily. Specifically, the petitioner alleged that Goodrow had rendered ineffective assistance of counsel in connection with his guilty pleas because she: (1) failed to advise him of the affirmative defense of mental disease or defect, which he assertedly could have raised as to all of his pending charges under § 53a-13, based upon a misinformed evaluation of his mental capacity at the time of the charged offenses by a forensic psychiatrist to whom she accidentally gave the medical records of a different inmate for the purpose of making that evaluation; (2) failed to conduct an adequate investigation as to the potential viability of the defense of lack of intent to commit robbery due to voluntary intoxication, which he also could have raised as to all pending charges under § 53a-7, before advising him to plead guilty to those charges; and (3) advised him not to inform the trial judge that he had taken prescription drugs on the day of his guilty pleas and then failed to correct the record when, on the basis of her advice, he denied such drug use in response to the judge's questions during the plea proceeding. The petitioner argued that, but for Goodrow's inadequate investigation into either the affirmative defense of mental disease or defect or the defense of lack of intent to commit robbery due to voluntary intoxication, and but for the fact that he was under the influence of prescription medication at the time he pleaded guilty, there is a reasonable probability that he would have pleaded not guilty and instead would have insisted on going to trial. In his prayer for relief, the petitioner requested that the court either vacate his guilty pleas so that he could proceed to trial or, in the alternative, vacate his sentence so he could be resentenced, pursuant to his plea bargain with the state, in light of the true psychiatric information about him, as set forth in his own DOC medical records.

         Following the habeas trial, on November 17, 2014, the court, Sferrazza, J., denied the petitioner's petition for a writ of habeas corpus. In its memorandum of decision, the habeas court did not distinguish between the affirmative defense of mental disease or defect and the defense of lack of intent to commit robbery due to voluntary intoxication. Instead, referring to them collectively as a ‘‘potential, voluntary intoxication defense, '' the court found that ‘‘Goodrow performed, in every respect, with the utmost professional care and sage advice on the topics of a potential, voluntary intoxication defense and all the information necessary for the petitioner to make voluntary and knowing guilty pleas. She had the petitioner examined by Dr. Zeman to discover whether the petitioner's extensive drug use, including the use of illy and heroin, provided a viable defense of voluntary intoxication. Goodrow quite correctly concluded that such drug usage by the petitioner was insufficient to establish such a defense. The petitioner presented no expert witness in the criminal defense field who criticized Goodrow's representation of the petitioner in any way, nor disputed her opinion and advice concerning the lack of a bona fide voluntary intoxication defense.'' (Internal quotation marks omitted.) With regard to the petitioner's claim that he was medicated at the time he entered his guilty pleas, the habeas court found that ‘‘[t]he credible evidence adduced at the habeas trial demonstrates that the petitioner possessed a state of mind at the time of his guilty pleas such that those pleas were entered intelligently, knowingly, and willingly. He now contends that he was under the influence of medication at the time he pleaded guilty; however, that testimony is contradicted by his responses during his plea canvass. The court disbelieves his testimony to the contrary.''

         On the basis of the foregoing findings, the habeas court determined that the petitioner had ‘‘failed to meet his burden of proving, by a preponderance of the evidence, that, but for the erroneous information in the Department of Correction's mental records, he would have elected to have his fate determined by trial rather than through pleas of guilty.'' The court then denied the petitioner's operative petition for a writ of habeas corpus. Thereafter, on December 5, 2014, the court denied the petitioner's petition for certification to appeal from its judgment denying the habeas petition. This appeal followed. Additional facts and procedural history will be set forth as necessary.

         Our standard of review on an appeal from the dismissal of a habeas corpus petition where the habeas court has denied the petitioner's petition for certification to appeal is well established. ‘‘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.'' (Internal quotation marks omitted.) Melendez v. Commissioner of Correction, 151 Conn.App. 351, 357-58, 95 A.3d 551, cert. denied, 314 Conn. 914, 100 A.3d 405 (2014). ‘‘A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason . . . [the] court could resolve the issues [in a different manner] . . . or . . . 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.'' (Internal quotation marks omitted.) Burgos-Torres v. Commissioner of Correction, 142 Conn.App. 627, 630-31, 64 A.3d 1259, cert. denied, 309 Conn. 909, 68 A.3d 663 (2013); Rosado v. Commissioner of Correction, 129 Conn.App. 368, 371-72, 20 A.3d 85, cert. denied, 302 Conn. 916, 27 A.3d 368 (2011).

         In his petition for certification to appeal, the petitioner sought permission to appeal from the dismissal of each part of his three part claim of ineffective assistance of counsel in connection with his challenged guilty pleas. Accordingly, we must ‘‘examine [each of] the petitioner's underlying claim[s] of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying [his] petition for certification to appeal.

         ‘‘Our standard of review of a habeas court's judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary.'' (Internal quotation marks omitted.) Vazquez v. Commissioner of Correction, 128 Conn.App. 425, 429, 17 A.3d 1089, cert. denied, 301 Conn. 926, 22 A.3d 1277 (2011).

         ‘‘A petitioner's right to the effective assistance of counsel is guaranteed by the sixth and fourteenth amendments to the United States constitution, and by article first, § 8, of the Connecticut constitution. . . . The right to counsel, however, is the right to effective assistance and not the right to perfect representation.'' (Internal quotation marks omitted.) Lewis v. Commissioner of Correction, 89 Conn.App. 850, 854-55, 877 A.2d 11, cert. denied, 275 Conn. 905, 882 A.2d 672 (2005). ‘‘In Strickland v. Washington, [466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction . . . . That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense.'' (Internal quotation marks omitted.) Vazquez v. Commissioner of Correction, supra, 128 Conn.App. 430.

         ‘‘To establish the first prong of the Strickland test, the petitioner must first establish that his attorney's performance was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law . . . .'' (Internal quotation marks omitted.) Lewis v. Commissioner of Correction, supra, 89 Conn.App. 855. Where a petitioner has pleaded guilty, the second prong is governed by the United States Supreme Court's decision in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). ‘‘In order to establish prejudice in such cases, the petitioner must demonstrate that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'' (Internal quotation marks omitted.) Yerinides v. Commissioner of Correction, 156 Conn.App. 71, 77, 111 A.3d 961 (2015); see also Crawford v. Commissioner of Correction, 285 Conn. 585, 598, 940 A.2d 789 (2008). ‘‘Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.'' (Internal quotation marks omitted.) Vazquez v. Commissioner of Correction, supra, 128 Conn.App. 430.

         With these principles in mind, we address the merits of each of the petitioner's claims of ineffective assistance of counsel.

         I

         The petitioner's first claim of ineffective assistance in connection with his guilty pleas in this case is that those pleas were not entered intelligently or voluntarily due to erroneous advice from Goodrow that he had no viable affirmative defense of mental disease or defect in this case. That advice, he claims, was erroneous because it was based, in material part, upon the misinformed opinion of Dr. Zeman as to the petitioner's mental capacity at the time of the charged offenses, which opinion, in turn, was mistakenly based upon the examination of medical records for the wrong Julio Ramos, which Goodrow had given to him in error. The petitioner asserts that, had Goodrow provided the correct medical records to Zeman, or had he known that Zeman's evaluation was based on the wrong medical records, there is a reasonable probability that he would pleaded not guilty and instead would have insisted on going to trial. Although the petitioner has raised a colorable claim, debatable among jurists of reason, that his counsel rendered deficient performance in basing her advice to plead guilty upon the mental capacity evaluation by a psychiatrist to whom she gave the wrong medical records, we agree with the habeas court that the petitioner failed to establish that he was prejudiced by that alleged deficiency in this case. We thus conclude that the habeas court did not abuse its discretion in denying his petition for certification to appeal on that ground.

         The following additional facts are necessary for our resolution of this aspect of the petitioner's ineffective assistance claim. At the habeas trial, Goodrow testified that during the initial stages of her investigation, she met with the petitioner several times and discussed his mental health issues, including his problems with depression, auditory hallucinations, and attempted suicide. She also recalled that, after one of those meetings, her investigator received an authorization from the petitioner to obtain a copy of his DOC medical records. Thereafter, she received medical records from the DOC, which were accompanied by a cover sheet bearing the petitioner's correct name, date of birth, and inmate number. Goodrow testified that she could not remember if she reviewed those medical records with the petitioner, but that had she done so, she would have noted that discussion in her files. She then provided those medical records to Zeman and asked him to assess whether the evidence in them could support an affirmative defense of mental disease or defect. Goodrow stated that, based upon Zeman's negative assessment, she did not feel that the petitioner could raise a viable affirmative defense of mental disease or defect at trial. Goodrow did not learn that she had obtained the wrong medical records from the DOC until the morning of her testimony at the habeas trial.

         Later in the habeas trial, the petitioner testified as to his mental health both in June, 1996, when the incidents underlying his guilty pleas were taking place, and from the date of his arrest, June 30, 1996, through the date of his guilty pleas, May 6, 1997. Specifically, he testified: that he had used heroin and ‘‘illy'' on a daily basis in June, 1996; that he had smoked ‘‘illy'' and attempted to commit suicide after he killed the victim in West Hartford; and that after his arrest, during the first year of his incarceration, he had been prescribed several antipsychotic medications to manage the depression and the auditory hallucinations he was then experiencing. With regard to his psychiatric evaluation by Zeman, the petitioner stated that he had informed Zeman of his substance abuse and mental health issues, but that Zeman had not taken any notes during their meeting. The petitioner also testified that Goodrow had never reviewed his medical records with him, explained to him the affirmative defense of mental disease or defect, told him why he was being evaluated by Zeman, or discussed with him Zeman's ultimate opinions regarding his case. Finally, the petitioner stated that he did not become aware that his counsel had given Zeman the wrong DOC medical records to examine in reaching his evaluation until after he was sentenced.

         In addition to this testimony, the petitioner offered two sets of medical records into evidence. First, he offered the incorrect medical records that Goodrow had received from the DOC. Those records were offered to show that the other Julio Ramos had far fewer psychiatric issues and a much less severe drug history, than the petitioner. Second, the petitioner offered his own DOC medical records for the relevant time frame to demonstrate that, had Goodrow provided those records to Zeman for his review, his assessment of ‘‘the petitioner's true mental state would have been drastically different.''

         The petitioner's correct medical records documented the petitioner's first several months of incarceration, between July 1, 1996 and April 23, 1997. Several entries in those records supported the petitioner's claims that he had a history of suicide attempts and that he was experiencing auditory hallucinations and taking anti-psychotic medications between July, 1996 and April, 1997. Additionally, a July 1, 1996 entry supported the petitioner's claim that he had attempted to commit suicide after killing the victim of the West Hartford robbery. At least one evaluator, however, opined that the petitioner was not psychotic, but rather that he suffered from post-traumatic stress disorder as a result of that killing. This opinion was consistent with several evaluations of the petitioner in his medical records that stated that the evaluators did not detect symptoms of overt psychosis in the petitioner's presentation. With these additional facts in mind, we address the merits of the petitioner's first claim.

         ‘‘A habeas petitioner can prevail on a constitutional claim of ineffective assistance of counsel [only if he can] establish both (1) deficient performance, and (2) actual prejudice.'' (Internal quotation marks omitted.) Merle S. v. Commissioner of Correction, 167 Conn.App. 585, 599, 143 A.3d 1183 (2016). ‘‘Where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases.'' (Internal quotation marks omitted.) Hill v. Lockhart, supra, 474 U.S. 56. If he can establish that his counsel's advice was objectively unreasonable, ‘‘[t]he [petitioner] must . . . [then] demonstrate that there was such an interrelationship between the ineffective assistance of counsel and the guilty plea that it can be said that the plea was not voluntary and intelligent because of the ineffective assistance.'' Buckley v. Warden, 177 Conn. 538, 543, 418 A.2d 913 (1979). The failure to make both necessary showings is fatal to a petitioner's claim that his guilty plea was entered involuntarily. ‘‘All of the circumstances surrounding the entry of the guilty plea in court should be considered in determining the voluntariness of the plea.'' Williams v. Reincke, 157 Conn. 143, 148, 249 A.2d 252 (1968). ‘‘If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.'' (Internal quotation marks omitted.) Smith v. Commissioner of Correction, 141 Conn.App. 626, 632, 62 A.3d 554, cert. denied, 308 Conn. 947, 67 A.3d 290 (2013).

         Though we need not address the performance prong of this analysis, we observe at the outset that, on this record, the petitioner has raised a colorable claim, debatable among jurists of reason, on the issue of deficient performance. In this case, Goodrow interviewed the petitioner several times in a commendable attempt to learn as much as she could about her client's mental capacity at the time of the charged offenses, employed an investigator to work on his case, requested his medical records from the DOC, and retained an expert to assess the potential viability of the affirmative defense of mental disease or defect. In this respect, Goodrow's conduct was certainly thorough and professionally appropriate. By undertaking these efforts, however, she assumed an obligation to conduct her investigation in a constitutionally adequate manner, which required her to obtain and furnish accurate medical information to the expert with whom she consulted with so that the expert's opinion would be well-grounded and she could appropriately rely upon it in developing her case strategy and advising her client whether to go to trial. Due to a series of unfortunate events, however, Goodrow received medical records for someone other than her client, but failed to review them with sufficient care and attention to discover the error. Those incorrect records were then transmitted to Zeman, so that he could review them before interviewing the petitioner and forming his opinions about his mental capacity at the time of the charged offenses. Regrettably, Goodrow was unaware of her mistake in transmitting the wrong medical records for Zeman's review until the morning of the habeas trial, long after her client had pleaded guilty.

         As a result of Goodrow's mistake, Zeman's opinion as to the viability of the petitioner's potential affirmative defense of mental disease or defect was based, at least in part, upon erroneous information. By the same token, Goodrow's advice to the petitioner, which itself was based in material part upon Zeman's misinformed opinion, was also erroneous. Although the record makes it clear that this mistake was completely unintentional, we conclude that it is at least debatable among jurists of reason whether the making of such a mistake when reviewing critical medical records that purportedly belong to one's own client satisfies the minimum requirements of our state and federal constitutions as to the adequacy of trial counsel's performance.

         Notwithstanding this conclusion, however, we agree with the habeas court that the petitioner failed to demonstrate that he was prejudiced by this aspect of Goodrow's performance in this case. Accordingly, we conclude that the habeas court did not abuse its discretion when it dismissed the petitioner's claim for relief on that ground, or later denied his petition for certification to appeal from the dismissal of that claim.

         We are reminded that the petitioner's second amended petition stated two alternative prayers for relief. First, he requested that the court vacate his guilty pleas so that he might proceed to trial. Second, he requested that the court vacate his sentences so that he might be resentenced, pursuant to his plea agreement with the state, in light of the information contained in his DOC medical records. Each prayer for relief implicates a different standard for assessing prejudice, and thus we address each separately.

         A

         With regard to the petitioner's request that his guilty plea be vacated so that he might proceed to trial, we agree with the habeas court that the petitioner has failed to demonstrate a reasonable probability that, but for Goodrow's deficient performance, he would not have pleaded guilty and instead would have insisted on going to trial. See Hill v. Lockhart, supra, 474 U.S. 59. Accordingly, we conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal.

         Where a petitioner who has pleaded guilty subsequently alleges that his guilty plea was the product of ineffective assistance of counsel, ‘‘the petitioner must demonstrate that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'' (Internal quotation marks omitted.) Yerinides v. Commissioner of Correction, supra, 156 Conn.App. 77. The United States Supreme Court has held that ‘‘where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the prejudice inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial . . . [and thus would have led counsel to change her recommendation as to the plea]. . . . [T]hese predictions of the outcome at a possible trial, where necessary, should be made objectively, without regard for the idiosyncrasies of the particular decisionmaker.'' (Citations omitted; internal quotation marks omitted.) Hill v. Lockhart, supra, 474 U.S. 59-60; Carraway v. Commissioner of Correction, 144 Conn.App. 461, 472-73, 72 A.3d 426 (2013), appeal dismissed, 317 Conn. 594, 119 A.3d 1153 (2015). ‘‘Analysis of the strength of the state's case and the viability of unadvanced defense strategies informs this analysis, but it is not by itself determinative.'' Carraway v. Commissioner of Correction, supra, 476.

         The petitioner claims that Goodrow never informed him about the potential availability of the affirmative defense of mental disease or defect and that, had she done so, there is a reasonable probability that he would have insisted on going to trial. In the alternative, he alleges that had he known that Zeman's opinion was based upon the wrong medical information, he would have insisted on going to trial ‘‘for everything to be correct.'' The petitioner was obligated to establish several necessary facts in order to demonstrate a reasonable probability that he would have insisted on going to trial had counsel properly advised him of the possible availability of the affirmative defense of mental disease or defect, based upon the proper advice from Zeman as to the viability of such defense. They included: first, that the affirmative defense of mental disease or defect was at least theoretically available to the petitioner based upon the facts of this case; second, that such affirmative defense was factually supported by at least some evidence available to the petitioner at trial; third, that the potential viability of that affirmative defense would have been established, in material part, by the contents of his DOC medical records and/or Zeman's likely testimony based upon them; fourth, that the potential viability of that affirmative defense, as supported by the petitioner's own medical records and Zeman's probable advice based upon it, would have been strong enough to require an attorney of ...


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