Argued
May 13, 2019
Petition for a writ of habeas corpus, brought to the Superior
Court in the judicial district of Tolland and tried to the
court, Oliver, J.; judgment denying the petition,
from which the petitioner, on the granting of certification,
appealed to this court. Affirmed.
Vishal
K. Garg, for the appellant (petitioner).
Denise
B. Smoker, senior assistant state’s attorney, with
whom, on the brief, were Richard J. Colangelo, Jr.,
state’s attorney, and Jo Anne Sulik, supervisory
state’s attorney, for the appellee (respondent).
Lavine, Keller and Harper, Js.
OPINION
HARPER, J.
The
petitioner, Sergio Echeverria, appeals from the judgment of
the habeas court denying his petition for a writ of habeas
corpus. The petitioner’s sole claim on appeal is that
the habeas court improperly rejected his claim that he had
received ineffective assistance of counsel due to his
attorney’s failure to advise him properly of the
immigration consequences of his guilty plea pursuant to
Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473,
176 L.Ed.2d 284 (2010). We disagree and, accordingly, affirm
the judgment of the habeas court.
The
following facts and procedural history are relevant to this
appeal. The petitioner is a Bolivian citizen who entered the
United States without authorization at the age of six. On
February 7, 2014, police officers executed a search warrant
on the petitioner’s Stamford apartment. Pursuant to the
executed warrant, the police officers found and subsequently
seized 4.3 pounds of marijuana, a large sum of cash, and a
semiautomatic pistol with the serial number removed. A police
report admitted into evidence at the habeas trial also
revealed that the police seized, inter alia, a marijuana
grinder, a digital scale, and several plastic bags containing
the drug commonly referred to as
‘‘Molly.’’ The petitioner
subsequently was arrested and charged with two counts of
possession of a hallucinogenic substance other than marijuana
or more than four ounces of marijuana in violation of General
Statutes § 21a-279 (b); possession of marijuana with
intent to sell in violation of General Statutes §
21a-277 (b); operation of a drug factory in violation of
General Statutes § 21a-277 (c); possession of narcotics
with intent to sell by a person who is not drug-dependent in
violation of General Statutes § 21a-278 (b); and illegal
alteration of a firearm identification mark in violation of
General Statutes § 29-36.[1] Thereafter, the petitioner
retained Attorney Michael Skiber to represent him.
Following
the petitioner’s arrest, the state and Skiber, on
behalf of the petitioner, entered into pretrial negotiations.
The state initially offered a plea deal by which the
petitioner would plead guilty to a charge stemming from the
sale of marijuana, [2] as well as alteration of a firearm
identification mark, and the state would recommend a sentence
of five years of incarceration, execution suspended after
three years, followed by three months of
probation.[3] The petitioner did not accept the offer,
and the case was placed on the jury list.
On June
3, 2015, after the petitioner received another plea offer
from the state, the trial court indicated that it would allow
the petitioner to enter an open guilty plea with no agreed
upon sentence to possession of marijuana with intent to sell
in violation of § 21a-277 (b) and alteration of a
firearm identification mark in violation of § 29-36. If,
however, the petitioner paid a $10, 000 fine, the trial court
offered to vacate the plea and grant the petitioner’s
application for accelerated rehabilitation. The petitioner
subsequently entered a guilty plea. The trial court accepted
the petitioner’s plea, finding that it was made
knowingly, intelligently, and voluntarily. After the trial
court accepted his plea, the petitioner stated that he was
unsure of whether he previously had been convicted of a
crime, calling into question his ability to receive
accelerated rehabilitation.[4] In light of the
petitioner’s statement, Skiber asked the trial court to
let the petitioner withdraw his plea. The trial court
declined Skiber’s request, opting instead to determine
whether the petitioner was in fact eligible for accelerated
rehabilitation before allowing the petitioner to withdraw his
plea.
After
it was determined that the petitioner was ineligible for
accelerated rehabilitation, the state and the petitioner
agreed on a sentence of five years of incarceration,
execution suspended, with three years of probation. The
petitioner did not ask for his plea to be withdrawn. On
September 3, 2015, the trial court found the petitioner
guilty and sentenced the petitioner in accordance with the
agreed upon disposition.
After
the petitioner was sentenced, the United States Department of
Homeland Security (department) initiated proceedings to
deport the petitioner. In its petition to remove the
petitioner from the country, the department cited as grounds
for removal (1) the petitioner’s criminal conviction,
(2) the petitioner’s unlawful entry into the United
States, and (3) that the petitioner did not possess any valid
documentation to lawfully remain in the country. On February
18, 2016, the United States Immigration Court adjudicated the
petitioner to be removable from the United States. On May 6,
2016, the petitioner filed the underlying petition for a writ
of habeas corpus alleging, inter alia, that his trial counsel
had provided ineffective assistance by failing to inform him
of the immigration consequences of his guilty plea.
A trial
on the petition for a writ of habeas corpus was conducted on
April 17, 2017. The petitioner presented testimony from
himself, Skiber, and an expert witness, Attorney Kevin Smith,
a criminal defense attorney who had experience in
representing defendants who faced immigration consequences
stemming from criminal charges. The respondent did not
present any evidence.
The
petitioner testified that he had hired Skiber to represent
him after posting bail. The petitioner testified that during
their initial meeting, he informed Skiber that he was not a
citizen of the United States. Further, the petitioner
testified that when the state initially offered a plea deal
which, according to the petitioner, included two years of
incarceration, he did not accept the offer because he knew
that it would lead to him being deported. The petitioner
testified that he spoke with an immigration attorney upon
receiving the plea offer that included two years of jail
time, but he was unable to identify with whom he spoke.
According to the petitioner, the immigration attorney advised
him to seek a plea deal with no jail time because any
conviction that entailed more than a year in jail was likely
to render him deportable.
The
petitioner also testified that when he pleaded guilty to
possession of marijuana with intent to sell and alteration of
a firearm identification mark, he was unsure of what the
immigration consequences were, but he understood that if it
was determined that he was ineligible for accelerated
rehabilitation, he was going to be deported. Later, the
petitioner testified that, after he was deemed ineligible for
accelerated rehabilitation, he did not think that he was
going to be deported when he accepted the plea agreement
providing for asentence of five years of incarceration,
execution suspended, with three years of probation because
the agreement did not require him to serve any jail time. The
petitioner testified that when he received the plea offer for
three years’ probation with no jail time, he told
Skiber that he wanted to consult an immigration lawyer, and
that Skiber represented to him that the deal was
‘‘as good as it would get’’ because,
if he rejected the offer, he would have to proceed to trial,
which ...