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Kondjoua v. Commissioner of Correction

Court of Appeals of Connecticut

December 17, 2019

CHRYSOSTOME KONDJOUA
v.
COMMISSIONER OF CORRECTION

          Argued September 11, 2019

         Procedural History

         Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland and tried to the court, Hon. Edward J. Mullar-key, judge trial referee; judgment denying the petition, from which the petitioner, on the granting of certification, appealed to this court. Affirmed.

          Jennifer B. Smith, for the appellant (petitioner).

          Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were Margaret E. Kelley, state's attorney, Angela Macchiarulo, senior assistant state's attorney, and Michael Proto, assistant state's attorney, for the appellee (respondent).

          DiPentima, C. J., and Alvord and Pellegrino, Js.

          OPINION

          PELLEGRINO, J.

         The petitioner, Chrysostome Kondjoua, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims that the habeas court improperly rejected his claims that (1) his trial counsel provided ineffective assistance by failing to advise him properly of the immigration consequences of pleading guilty under Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), and (2) his guilty plea was not knowingly, intelligently, and voluntarily made. We disagree and, therefore, affirm the judgment of the habeas court.

         The following facts and procedural history are relevant to this appeal. The petitioner is a Cameroonian citizen who has resided in the United States since 2010 as a long-term, permanent resident with a green card. He was arrested on November 29, 2013, and charged with the sexual assault in the first degree of an eighty-three year old woman, for whom he had been working. The petitioner entered a plea of not guilty and elected a jury trial.

         On December 16, 2014, after the jury had been picked and evidence was set to begin, the petitioner accepted a plea agreement to the reduced charge of sexual assault in the third degree. Before accepting the petitioner's guilty plea, the trial court canvassed him.[1] The trial court found that the plea was made knowingly, intelligently, and voluntarily, and ordered a presentence investigation. On March 4, 2015, the court sentenced the petitioner to the agreed disposition of five years of imprisonment, execution suspended after twenty months, with ten years of probation. The petitioner also was required to register as a sex offender for ten years. The petitioner did not file a direct appeal.

         While the petitioner was serving his sentence, the United States Department of Homeland Security (department) initiated deportation proceedings against him. The department cited the petitioner's March, 2015 conviction for sexual assault in the third degree as the ground for removal and stated that the petitioner was subject to removal because he had been convicted of an aggravated felony and a crime of moral turpitude, in violation of § 237 (a) (2) (A) (iii) and § 237 (a) (2) (A) (i) of the Immigration and Nationality Act, respectively. A warrant for the petitioner's arrest was served on July 14, 2015, and the petitioner was taken into the department's custody.[2]

         On June 19, 2015, the petitioner, then self-represented, filed a petition for a writ of habeas corpus.[3]Appointed counsel thereafter filed an amended petition.[4] On October 17, 2017, counsel filed a second amended petition, which is the operative petition in this case. It alleged two claims: Ineffective assistance of trial counsel for the improper advice concerning the immigration consequences of a guilty plea and a due process challenge to his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made. On December 19, 2017, the respondent, the Commissioner of Correction, filed a return alleging that the petitioner's due process claim was in procedural default. The petitioner filed a reply denying the allegations in the respondent's return on December 28, 2017.

         On May 16, 2018, the habeas court issued a memorandum of decision in which it denied the petition. The habeas court found that the petitioner failed to establish that trial counsel had rendered ineffective assistance. The court found the testimony of trial counsel credible and the petitioner's testimony not credible, and determined that counsel had advised the petitioner, prior to the plea hearing, that he would be deported if he pleaded guilty. Further, the court found that the totality of counsel's advice demonstrated that he adequately had advised the petitioner of the immigration consequences of pleading guilty. The court further found that, ‘‘because the court does not find the petitioner credible, the claim must also fail because the petitioner has not demonstrated that he would have maintained his plea of not guilty and proceeded to trial.'' Regarding the petitioner's second claim, the court found that the petitioner had not established cause and prejudice sufficient to overcome the procedural default. On June 15, 2018, the habeas court granted the petitioner's petition for certification to appeal. This appeal followed. Additional facts will be set forth as necessary.

         I

         The petitioner claims that the habeas court erred in rejecting his claim that his trial counsel provided ineffective assistance by failing to advise him properly of the immigration consequences of pleading guilty[5]pursuant to Padilla v. Kentucky, supra, 559 U.S. 356. Because we conclude that the habeas court properly determined that the petitioner failed to establish that he was prejudiced by trial counsel's alleged deficient performance, we reject the petitioner's claim.

         We begin our analysis with the legal principles that govern our review of the petitioner's claim. The sixth amendment to the United States constitution, applicable to the states through the due process clause of the fourteenth amendment, and article first, § 8, of the constitution of Connecticut provide that in all criminal prosecutions, the accused shall enjoy the right to the effective assistance of counsel. U.S. Const., amend. VI; Conn. Const., art. I, § 8; see Gideon v. Wainwright, 372 U.S. 335, 342, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Duncan v. Commissioner of Correction, 171 Conn.App. 635, 646, 157 A.3d 1169, cert. denied, 325 Conn. 923, 159 A.3d 1172 (2017).

         ‘‘A claim of ineffective assistance of counsel is governed by the two-pronged test set forth in Strickland v. Washington, [466 U.S. 668');">466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)]. Under Strickland, the petitioner has the burden of demonstrating 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. . . . 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. . . . It is axiomatic that courts may decide against a petitioner on either prong [of the Strickland test], whichever is easier . . . . In its analysis, a reviewing court may look to the performance prong or the prejudice prong, and the petitioner's failure to prove either is fatal to a habeas petition.'' (Citation omitted; internal quotation marks omitted.) Echeverria v. Commissioner of Correction, 193 Conn.App. 1, 9-10, A.3d (2019).

         ‘‘[T]he Hill [v. Lockhart, 474 U.S. 51, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)] prejudice standard provides that [i]n the context of a guilty plea . . . to succeed on the prejudice prong the petitioner must demonstrate that, but for counsel's alleged ineffective performance, the petitioner would not have pleaded guilty and would have proceeded to trial. . . . In evaluating whether the petitioner ha[s] met this burden and . . . the credibility of the petitioner's assertions that he would have gone to trial, it [is] appropriate for the court to consider whether a decision to reject the plea bargain would have been rational under the circumstances.'' (Citations omitted; internal quotation marks omitted.) Duncan v. Commissioner of Correction, supra, 171 Conn.App. 663; see also Humble v. Commissioner of Correction, 180 Conn.App. 697, 705, 184 A.3d 804 (‘‘[t]o satisfy the prejudice prong [under Strickland-Hill], the petitioner must show a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial''), cert. denied, 330 Conn. 939, 195 A.3d 692 (2018). Finally, ‘‘[c]ourts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies. Judges should instead look to contemporaneous evidence to substantiate a defendant's expressed preferences.'' Lee v. United States, ___ U.S. ___, 137 S.Ct. 1958, 1967, 198 L.Ed.2d 476 (2017).

         ‘‘The [ultimate] conclusions reached by the [habeas] court in its decision [on a] habeas petition are matters of law, subject to plenary review. . . . [When] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record. . . . A reviewing court ordinarily will afford deference to those credibility determinations made by the habeas court on the basis of [its] firsthand observation of [a witness'] conduct, demeanor and attitude.'' (Citations omitted; internal quotation marks omitted.) Flomo v. Commissioner of Correction, 169 Conn.App. 266, 278-79, 149 A.3d 185 (2016), cert. denied, 324 Conn. 906, 152 A.3d 544 (2017).

         In regard to the prejudice prong of Strickland, the petitioner argues that this case should be remanded to the habeas court for a determination of prejudice under Strickland. The petitioner proffers two reasons for remand: (1) ‘‘the habeas court failed to consider whether . . . there was a reasonable probability that, but for counsel's deficient performance, the petitioner would not have pleaded guilty and would have insisted on going to trial'' and (2) ‘‘the habeas court speculated about the strength of evidence against the petitioner.''[6]In its memorandum of decision, the habeas court found that the petitioner's testimony was not credible and determined that he had not met his burden of establishing that he would have rejected the state's plea offer and elected to go to trial.

         Beyond the petitioner's own testimony, which the habeas court found to be not credible, the petitioner has not offered any evidence that he would have rejected the plea offer and gone to trial. Instead, there is significant evidence contradicting this claim. The petitioner originally was charged with sexual assault in the first degree. The charge was based on the complaint of an eighty-three year old woman who stated that the petitioner, whom she hired to do some work at her house, assaulted her by penetrating her from behind without her consent. While the petitioner's criminal case was pending, trial counsel engaged in plea negotiations on the petitioner's behalf. During that time, the petitioner made a counter offer of two years to serve, which the state rejected. Despite trial counsel's efforts, the state refused to reduce the charge to a point where the petitioner could avoid immigration consequences. The petitioner filed a motion for a speedy trial, but he did not pursue the motion. After the jury had been picked and on the same day evidence was set to begin with the testimony from the eighty-five year old victim, who was present and ready to testify, the petitioner pleaded guilty to the reduced charge of sexual assault in the third degree. At sentencing, the victim addressed the court and expressed her support for the sentence and stated that she hoped the petitioner would be deported. After the victim spoke, the petitioner addressed the court and did not deny engaging in sexual relations with the victim and stated that the victim had consented. The habeas court found that the ‘‘consent'' defense proffered by the petitioner was not credible and ‘‘seems unlikely to have prevailed'' at trial. In addition, the petitioner did not raise any claim of improper advice regarding immigration consequences from his trial counsel until his habeas counsel filed the operative petition, several years after the department initiated deportation proceedings. The petitioner has failed to meet his burden of demonstrating that he would have rejected the plea agreement and insisted on going to trial.

         Because we conclude that the trial court properly determined that the petitioner failed to prove the prejudice prong of Strickland, we need not reach the issue of deficient performance. See 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 defendant''); Buie v.Commissioner of Correction, 187 Conn.App. 414, 422, 202 A.3d 453 (deciding ineffective assistance of counsel on basis of failure to demonstrate prejudice prong), cert. denied, 331 Conn. 905, 202 A.3d 373 (2019); Bova v.Commissioner of Correction, 162 Conn.App. 348, 358, 131 A.3d 268 (‘‘[t]he petitioner has failed to prove that he was prejudiced . . . therefore we decline to reach the first Strickland prong''), cert. denied, 320 Conn. 920, 132 A.3d 1094 (2016); Russell v.Commissioner of Correction, 150 Conn.App. 38, 46, 89 A.3d 1023 (resolving petitioner's claim on basis of prejudice prong), cert. denied, 312 Conn. 921, 94 A.3d 1200 (2014); see also Ouellette v.Commissioner of Correction, 154 Conn.App. 433, 448 n.9, 107 A.3d 480 (2014) ...


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