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) ...