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Echeverria v. Commissioner of Correction

Court of Appeals of Connecticut

September 24, 2019

SERGIO ECHEVERRIA
v.
COMMISSIONEROF CORRECTION

          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 ...


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