Davis v. Commissioner of Correction ( 2015 )

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DOUGLAS DAVIS v. COMMISSIONER
OF CORRECTION
(SC 19286)
Rogers, C. J., and Palmer, Zarella, McDonald, Espinosa and Robinson, Js.
Argued March 25—officially released November 17, 2015
Naomi T. Fetterman, with whom was Aaron J.
Romano, for the appellant (petitioner).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and Adrienne Maciulewski, deputy
assistant state’s attorney, for the appellee (respondent).
Opinion
ROBINSON, J. The sole issue in this certified appeal
is whether a criminal defendant received the effective
assistance of counsel when, at sentencing, defense
counsel agreed with the prosecutor’s recommendation
that the trial court should impose the maximum sen-
tence allowed under a plea agreement even though that
agreement contained a provision entitling defense coun-
sel to advocate for a lesser sentence. The petitioner,
Douglas Davis, appeals, upon our grant of his petition
for certification,1 from the judgment of the Appellate
Court affirming in part the habeas court’s denial of his
amended petition for a writ of habeas corpus.2 Davis
v. Commissioner of Correction, 147 Conn. App. 343,
358–63, 81 A.3d 1226 (2013). On appeal, the petitioner
contends that the Appellate Court improperly con-
cluded that the habeas court properly applied Strick-
land v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984), to his ineffective assistance claim,
and thereby required him to prove that he was preju-
diced by defense counsel’s deficient performance. The
petitioner argues that, because a complete breakdown
in the adversarial process occurred, his claim instead
is controlled by United States v. Cronic, 466 U.S. 648,
655–57, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), and
prejudice should be presumed. We agree with the peti-
tioner and, accordingly, reverse in part the judgment
of the Appellate Court and remand the case for a new
sentencing hearing.
The record reveals the following facts and procedural
history. The petitioner was charged with murder in vio-
lation of General Statutes § 53a-54a and carrying a pistol
without a permit in violation of General Statutes § 29-
35. Defense counsel was appointed to represent the
petitioner, and he negotiated for a plea to manslaughter
in the first degree with a firearm in violation of General
Statutes § 53a-55a and carrying a pistol without a permit
in violation of § 29-35. The plea agreement stated that
the petitioner would receive a total effective sentence
of between twenty and twenty-five years imprisonment
and that the state and the petitioner would have the
right to argue for an appropriate sentence within that
range. When the trial court, Damiani, J., accepted the
petitioner’s guilty plea, the court reminded the peti-
tioner that defense counsel had ‘‘a right to argue’’ for
a sentence beneath the twenty-five year cap. Thereafter,
a presentence investigation (PSI) report was com-
pleted, which recommended a twenty-five year
sentence.
At the petitioner’s sentencing hearing, the trial court
began by reciting the plea agreement’s twenty year floor
and twenty-five year cap, and reiterating that defense
counsel had ‘‘a real right to argue’’ for the appropriate
sentence. The trial court then stated that it was the
‘‘saddest thing’’ to sentence someone for killing another
human being because ‘‘that person’s life is ruined’’ and
no number of years will satisfy the victim’s family. The
trial court also commented on the prevalence of guns
in New Haven, adding, ‘‘it’s a very sad, sad situation.’’
After making these preliminary remarks, the trial
court turned to the prosecutor, who noted that the trial
court echoed the feeling of the state, and introduced
the victim’s family members. Five family members poi-
gnantly described their loss. Immediately thereafter, the
prosecutor stated the following: ‘‘Needless to say, the
state recommends twenty-five years to serve.’’ Defense
counsel immediately responded as follows: ‘‘Your
Honor, I agree with everything that everybody said so
far, and I don’t think there’s anything left to say from
my part.’’ (Emphasis added.) Defense counsel said
nothing else on the petitioner’s behalf. The trial court
then imposed the maximum sentence of twenty-five
years imprisonment.
The petitioner subsequently filed a petition for a writ
of habeas corpus. Following the appointment of habeas
counsel, he filed an amended petition claiming ineffec-
tive assistance of counsel. During the habeas trial, only
the petitioner and defense counsel testified. Defense
counsel explained that, because the petitioner had told
him he only had a few drug convictions, he had negoti-
ated for the plea agreement under the assumption that
he could rely on the petitioner’s lack of a substantial
criminal record at the sentencing hearing. Upon
reviewing the PSI at the sentencing hearing, however,
defense counsel learned that the petitioner had a much
more extensive criminal history than had previously
been insinuated. Defense counsel testified that, under
these circumstances, he believed the twenty-five year
sentence was satisfactory.
The habeas court subsequently denied relief,
determining that the petitioner failed to prove that he
was denied effective assistance of counsel pursuant to
the two-pronged test set forth in Strickland. Under the
first prong, the habeas court determined that defense
counsel’s performance was resoundingly deficient,
deeming it ‘‘wholly unreasonable and inexcusable’’ and
‘‘a poster child example of what constitutes ineffective
assistance of counsel.’’ Under the second prong, how-
ever, the habeas court determined that the petitioner
had not shown actual prejudice—that is, a reasonable
probability that he would have received a different sen-
tence but for defense counsel’s conduct. Accordingly,
the habeas court rendered judgment denying the
amended petition. The petitioner subsequently filed a
petition for certification to appeal, which the habeas
court denied.
The petitioner then appealed to the Appellate Court,
which concluded in relevant part that the habeas court
properly determined that the petitioner failed to prove
actual prejudice under Strickland. See Davis v. Com-
missioner of Correction, supra, 147 Conn. App. 363;
see also footnote 2 of this opinion. Accordingly, the
Appellate Court affirmed the judgment of the habeas
court.3 Davis v. Commissioner of Correction, supra,
363. This certified appeal followed. See footnote 1 of
this opinion.
On appeal, the petitioner claims that defense coun-
sel’s agreement with the state’s recommendation of the
maximum sentence amounted to a complete break-
down in the adversarial process and, thus, pursuant to
United States v. Cronic, supra, 466 U.S. 648, prejudice
should be presumed in connection with his ineffective
assistance of counsel claim.4 The petitioner relatedly
contends that defense counsel’s agreement to the maxi-
mum sentence of twenty-five years cannot realistically
be cast as a strategic decision. Specifically, the peti-
tioner notes that his sentence already was capped at
twenty-five years pursuant to the plea agreement, and
that defense counsel had specifically bargained for,
received, and advised the petitioner to accept an
agreement containing a right to argue for less than the
maximum sentence.
In response, the respondent, the Commissioner of
Correction, disputes that defense counsel agreed with
the prosecution’s sentencing recommendation during
the sentencing hearing. The respondent contends that
defense counsel merely made a strategic decision to
avoid engaging in argument given the heightened emo-
tions in the courtroom, as well as the information
already provided to the trial court in the PSI. The
respondent asserts that defense counsel could not have
said anything to make a difference in the trial court’s
sentencing and, therefore, defense counsel reasonably
forfeited his right to argue. Citing Strickland v. Wash-
ington, supra, 466 U.S. 668, the respondent emphasizes
the presumption of competence afforded to defense
counsel’s conduct.
We begin by setting forth the applicable standard of
review. The issue of whether the representation that a
defendant received at trial was constitutionally inade-
quate is a mixed question of law and fact. Id., 698. As
such, the question requires plenary review ‘‘unfettered
by the clearly erroneous standard.’’ (Internal quotation
marks omitted.) Gonzalez v. Commissioner of Correc-
tion, 308 Conn. 463, 470, 68 A.3d 624, cert. denied,
U.S. , 134 S. Ct. 639, 187 L. Ed. 2d 445 (2013).
The sixth amendment provides that in all criminal
prosecutions, the accused shall enjoy the right to the
effective assistance of counsel. U.S. Const., amend. VI.
This right is incorporated to the states through the due
process clause of the fourteenth amendment. See U.S.
Const., amend. XIV, § 1; Gideon v. Wainwright, 372
U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). Strickland
and Cronic set forth the framework for analyzing inef-
fective assistance of counsel claims. Under the two-
pronged Strickland test, a defendant can only prevail
on an ineffective assistance of counsel claim if he
proves that (1) counsel’s performance was deficient,
and (2) the deficient performance resulted in actual
prejudice. Strickland v. Washington, supra, 466 U.S.
687. To demonstrate deficient performance, a defendant
must show that counsel’s conduct fell below an objec-
tive standard of reasonableness for competent attor-
neys. Id., 688. To demonstrate actual prejudice, a
defendant must show a reasonable probability that the
outcome of the proceeding would have been different
but for counsel’s errors. Id., 694.
Strickland recognized, however, that ‘‘[i]n certain
[s]ixth [a]mendment contexts, prejudice is presumed.’’
Id., 692. In United States v. Cronic, supra, 466 U.S.
659–60, which was decided on the same day as Strick-
land, the United States Supreme Court elaborated on
the following three scenarios in which prejudice may
be presumed: (1) when counsel is denied to a defendant
at a critical stage of the proceeding; (2) when counsel
‘‘entirely fails to subject the prosecution’s case to mean-
ingful adversarial testing’’; and (3) when counsel is
called upon to render assistance in a situation in which
no competent attorney could do so. Notably, the second
scenario constitutes an ‘‘actual breakdown of the
adversarial process,’’ which occurs when counsel com-
pletely fails to advocate on a defendant’s behalf. Id., 657.
The United States Supreme Court revisited Cronic
in the sentencing context in Bell v. Cone, 535 U.S. 685,
697, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002). In Bell,
counsel presented no mitigating evidence at a capital
sentencing hearing and waived closing argument to
avert rebuttal from the prosecution. Id. Counsel did,
however, plead for the defendant’s life in his opening
statement and cross-examine the state’s witnesses. Id.The court clarified that counsel’s failure to advocate for
the defendant during the sentencing proceeding must be
‘‘complete,’’ rather than at ‘‘specific points,’’ for there
to be a complete breakdown in the adversarial process.
Id. Because counsel did something during the sentenc-
ing hearing and gave a viable rationale to support his
actions, the court ultimately concluded that Cronic did
not apply. Id.Various courts, in explaining the line that divides
Strickland and Cronic, have likewise held that specific
errors in representation, for which counsel can provide
some reasonable explanation, are properly analyzed
under Strickland. See, e.g., United States v. Gooding,
594 Fed. Appx. 123, 126 (4th Cir. 2014). Counsel’s com-
plete failure to advocate for a defendant, however, such
that no explanation could possibly justify such conduct,
warrants the application of Cronic. See, e.g., Patrasso
v. Nelson, 121 F.3d 297, 304 (7th Cir. 1997). In the spirit
of Bell, courts have drawn a distinction between ‘‘mal-
adroit performance’’ and ‘‘non-performance’’; Scarpa v.
Dubois, 38 F.3d 1, 15 (1st Cir. 1994), cert. denied, 513
U.S. 1129, 115 S. Ct. 940, 130 L. Ed. 2d 885 (1995); by
applying Cronic in cases where counsel’s conduct goes
beyond ‘‘bad, even deplorable assistance’’ and consti-
tutes ‘‘no representation at all . . . .’’ Moss v. Hofbauer,
286 F.3d 851, 861 (6th Cir.), cert. denied, 537 U.S. 1092,
123 S. Ct. 702, 154 L. Ed. 2d 639 (2002). Put differently,
in ineffective assistance of counsel claims, prejudice
may be presumed when counsel ‘‘wasn’t really acting
as a lawyer at all.’’ Johnson v. Nagle, 58 F. Supp. 2d
1303, 1338 (N.D. Ala. 1999), aff’d, 256 F.3d 1156 (11th
Cir. 2001).
Cronic nonetheless ‘‘provides a reviewing court with
some difficulty in application’’; Rickman v. Bell, 131
F.3d 1150, 1156 (6th Cir. 1997), cert. denied, 523 U.S.
1133, 118 S. Ct. 1827, 140 L. Ed. 2d 962 (1998); and
represents an ‘‘unsettled area of federal constitutional
law.’’ Kaddah v. Commissioner of Correction, 105
Conn. App. 430, 444 n.6, 939 A.2d 1185, cert. denied,
286 Conn. 903, 943 A.2d 1101 (2008). For example, no
consensus exists whether counsel’s mere silence or lack
of advocacy at a sentencing hearing amounts to a com-
plete breakdown in the adversarial process. Some
courts have applied Strickland in these situations,
describing counsel’s conduct as strategic under the cir-
cumstances. See, e.g., Gonzalez v. United States, 722
F.3d 118, 136 (2d Cir. 2013); Duncan v. Carpenter,
United States District Court, Docket No. 3:88-00992
(JTN) (M.D. Tenn. March 4, 2015); Butler v. Sumner,
783 F. Supp. 519, 520 (D. Nev. 1991). Other courts have
rejected the notion that such conduct can ever be
deemed strategic and applied Cronic instead. See, e.g.,
Patrasso v. Nelson, supra, 121 F.3d 304; Tucker v. Day,
969 F.2d 155, 159 (5th Cir. 1992); Gardiner v. United
States, 679 F. Supp. 1143, 1145–46 (D. Me. 1988). Neither
party briefed, nor did our independent research reveal,
any decisions directly on point, in which defense coun-
sel negotiated for a plea agreement with a given sentenc-
ing range, then agreed with the prosecutor’s
recommendation of the maximum sentence at the sen-
tencing hearing.5
A closer look at the silence cases illustrating the
division among the authorities in the sentencing context
is nonetheless helpful. For example, the United States
Court of Appeals for the Second Circuit appears to have
applied Strickland when defense counsel ‘‘did little
more than simply attend’’ a sentencing hearing for drug
and bribery charges. Gonzalez v. United States, supra,
722 F.3d 136. The Federal District Court for the District
of Nevada applied Strickland when defense counsel
simply stated that ‘‘prison was not the place’’ for the
defendant, but that he ‘‘[didn’t] know what choice the
[c]ourt ha[d].’’ (Internal quotation marks omitted.) But-
ler v. Sumner, supra, 783 F. Supp. 520. The Federal
District Court for the Middle District of Tennessee also
applied Strickland where, at a capital sentencing hear-
ing, counsel viewed sentencing as ‘‘hopeless,’’ pre-
sented no mitigating evidence, and argued briefly and
unpersuasively. Duncan v. Carpenter, supra, United
States District Court, Docket No. 3:88-00992 (JTN). The
court applied Strickland, but observed, ‘‘[i]f this is not
‘complete’ failure as required by Cronic . . . it comes
as close to the line as any case could without crossing
over it.’’ Id. None of these cases involved an apparent
agreement with the prosecutor.
Courts have also applied Cronic’s presumption of
prejudice to cases involving defense counsel’s silence
or lack of advocacy at sentencing. See, e.g., Patrasso
v. Nelson, supra, 121 F.3d 304; Tucker v. Day, supra,969 F.2d 159; Gardiner v. United States, supra, 679 F.
Supp. 1145–46. For example, the United States Court
of Appeals for the Seventh Circuit applied Cronic when
a prosecutor recommended the maximum sentence
for attempted murder, to which defense counsel
responded, ‘‘I have nothing.’’ (Internal quotation marks
omitted.) Patrasso v. Nelson, supra, 303. Because the
defendant was ‘‘left without a defense at sentencing
[and] without an opportunity to argue for a sentence
less than the statutory maximum he received,’’ coun-
sel’s performance ‘‘was so lacking that it invite[d] appli-
cation of Cronic rather than Strickland.’’ Id., 304.
Similarly, in Gardiner v. United States, supra, 679 F.
Supp. 1145–46, the Federal District Court for the District
of Maine applied Cronic when counsel did not present
evidence and said nothing on behalf of his client at a
sentencing hearing for drug crimes. The court deter-
mined that the argument that counsel’s silence consti-
tuted a ‘‘strategic decision’’ was ‘‘at best labored and
the result of a gross misperception and, at worst, fabri-
cated out of thin air.’’ Id., 1145. By doing nothing during
the hearing, counsel ensured that the ‘‘very bleak pic-
ture’’ of a defendant, as painted by the state, ‘‘was the
impression with which the [c]ourt would be left.’’ Id.,
1146.
Courts have also applied Cronic when counsel con-
structively agreed with the prosecution in the absence
of any reasonable explanation for doing so. For
instance, the United States Court of Appeals for the
Tenth Circuit applied Cronic when counsel’s argument
at a sentencing hearing stressed the brutality of the
crime, how difficult the defendant was, and the over-
whelming nature of the evidence against him. See
Osborn v. Shillinger, 861 F.2d 612, 628 (10th Cir. 1988)
(noting that sentencing proceeding was ‘‘almost totally
[nonadversarial]’’). Similarly, the United States Court of
Appeals for Ninth Circuit applied Cronic when counsel
admitted in his closing argument that no reasonable
doubt existed as to whether the defendant perpetrated
the bank robbery or intimidated the bank tellers,
thereby conceding two critical elements of the prosecu-
tion’s case. See United States v. Swanson, 943 F.2d
1070, 1075 (9th Cir. 1991).
When counsel’s agreement with the prosecution is
reasonably calculated to further a defendant’s interests,
however, courts apply the Strickland test. The United
States Supreme Court has held that prejudice could
not be presumed when counsel conceded a defendant’s
guilt during the closing argument for a capital crime,
with the hopes of persuading the jury not to impose
the death penalty. See Florida v. Nixon, 543 U.S. 175,
191–92, 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004). The
Eleventh Circuit also applied Strickland when counsel
candidly acknowledged to the jury that the prosecution
had presented enough evidence to convict his client of
one count of robbery, but only in an attempt to build
enough credibility to defend his client against the sec-
ond count. See Darden v. United States, 708 F.3d 1225,
1229–30 (11th Cir.), cert. denied, U.S. , 133 S.
Ct. 2871, 186 L. Ed. 2d 922 (2013); see also United States
v. Thomas, 417 F.3d 1053, 1057 (9th Cir. 2005) (counsel
conceded guilt on one charge on which evidence was
overwhelming to gain credibility for defending against
more serious charges with greater penalties), cert.
denied, 546 U.S. 1121, 126 S. Ct. 1095, 163 L. Ed. 2d 909(2006). In each of these cases, counsel’s ‘‘agreement’’
with the prosecution could conceivably have improved
the defendant’s overall position and was limited to sub-
ordinate issues, rather than the sole matter of con-
tention. Apart from these differences, and their position
outside the sentencing context, these cases simply
show a willingness to apply Cronic when counsel agrees
with the prosecution in a way that cannot reasonably
be deemed to be in a defendant’s interest.
With these precedents in mind, we now turn to the
petitioner’s claim that defense counsel’s agreement to
the maximum sentence, despite his express entitlement
to advocate for a lesser sentence, constituted a com-
plete breakdown in the adversarial process calling for
Cronic’s presumption of prejudice. Because our sur-
veyed cases applying Strickland have not involved
defense counsel’s agreement with the prosecution on
the sole issue in contention, and our surveyed cases
applying Cronic have identified a complete breakdown
in the adversarial process even without such an
agreement, we are persuaded that Cronic governs the
petitioner’s claim.6 We further note that Bell v. Cone,
supra, 535 U.S. 697, does not bar the application of
Cronic in the present case, because, unlike Bell, the
defense counsel in the present case not only did nothing
to advocate for the petitioner at the sentencing hearing,
but he also went a step further by agreeing with the
state’s recommendation of the maximum sentence.
Our conclusion that a complete breakdown in the
adversarial process occurred, triggering Cronic, begins
with our initial determination, based on our review of
the record, that defense counsel agreed with the prose-
cutor’s recommendation. At sentencing, the trial court
began by lamenting the tragedy of the case and com-
menting on the prevalence of gun violence in New
Haven. The trial court turned to the prosecutor, who
noted that the court echoed the feeling of the state
and then introduced the victim’s family members. The
victim’s father, two sisters, cousin, and another family
member each took turns poignantly describing their
loss. When the last family member finished, the prosecu-
tor said, ‘‘[n]eedless to say, the state recommends
twenty-five years to serve.’’ The trial court then turned
to defense counsel, who immediately replied, ‘‘[y]our
Honor, I agree with everything that everybody said so
far, and I don’t think there’s anything left to say from
my part. . . .’’ (Emphasis added.) Defense counsel
made no other statements during the sentencing hear-
ing, and later indicated his understanding that this con-
stituted his chance to argue for a sentence of less than
twenty-five years.
At the subsequent habeas trial, when defense counsel
was asked to clarify what he had stated at the sentenc-
ing hearing, he explained, ‘‘that I agree with everything
that had been said thus far, referring to the comments
by the victim’s family and the comments of the state’s
attorney because none of that was in dispute . . . .’’
(Emphasis added.) As the transcript reveals, the only
comment made by the state, other than the general
denunciation of violence in New Haven and the intro-
duction of the victim’s family members, was the twenty-
five year recommendation immediately before defense
counsel expressed his agreement.
The respondent contends that defense counsel was
simply agreeing with the tragic consequences of the
petitioner’s actions and the sense of loss felt by the
victim’s family. We disagree. Defense counsel may have
been acknowledging those discrete sentiments, but he
also specifically referenced all of the comments of the
prosecutor in explaining to what he had agreed during
the sentencing hearing. Thus, defense counsel’s
agreement can only be understood as encompassing
the prosecutor’s comments, which, in this case,
included the recommendation of a twenty-five year
sentence.7
Defense counsel’s testimony further demonstrates
that, upon learning the true extent of the petitioner’s
criminal record and believing that twenty-five years was
satisfactory under the circumstances, he capitulated to
that recommendation. Defense counsel testified that
the ‘‘slight possibility’’ that the petitioner would receive
a sentence of less than twenty-five years ‘‘dissipated’’ at
the sentencing hearing.8 Defense counsel also testified
several times that he believed twenty-five years was
‘‘satisfactory’’ to him and the ‘‘best’’ he could do under
the circumstances.9 Although defense counsel’s state-
ments may well refer to an after the fact satisfaction
with the outcome of the case, they also reveal his will-
ingness to agree to the maximum sentence under the
plea agreement at the time of sentencing. Thus, defense
counsel’s testimony supports the conclusion that, after
being caught off guard by the petitioner’s criminal
record, he effectively resigned himself to a sentence of
twenty-five years.
When viewed in more complete context, defense
counsel’s agreement with the prosecutor cannot realis-
tically be characterized as a strategic decision properly
analyzed under Strickland. Rather, defense counsel’s
conduct resembles the complete breakdown in the
adversarial process that Cronic envisions. The petition-
er’s sentence was already capped at twenty-five years
pursuant to the plea agreement and, thus, assenting to
that sentence did nothing to advance the petitioner’s
interests.10
The trial court’s acknowledgment of the range of
sentencing options at multiple points during the hearing
further undermines any ‘‘strategic’’ rationale for defense
counsel’s conduct. Even after the victim’s father deliv-
ered a statement, the trial court had not yet decided
on the maximum twenty-five years. In addressing the
father’s grief, the trial court stated, ‘‘when [the peti-
tioner] comes out of jail after twenty or twenty-five
years . . . .’’ (Emphasis added.) The trial court also
reiterated the twenty year floor and twenty-five year
cap at the beginning of the hearing and manifested some
sympathy for the petitioner, noting that his life was
already ruined and that the whole case was a ‘‘very sad,
sad situation.’’ When one of the victim’s family members
stated that the petitioner had not shown any remorse,
the trial court corrected him by pointing to the petition-
er’s statement that he cannot forgive himself for what
he did. The trial court also acknowledged defense coun-
sel’s right to argue several times, emphasizing that it
was ‘‘real’’ at the beginning of the sentencing hearing.
Defense counsel himself admitted at the habeas trial
that his right to argue was meaningful.11
Despite this meaningful right to argue, defense coun-
sel testified at the habeas trial that he chose instead to
rely on the PSI to speak for itself on behalf of his client.
The PSI, however, did nothing more than reiterate the
prosecutor’s recommendation. That is, the PSI con-
tained only recommendations for the maximum twenty-
five year sentence by the victim’s family members and
the investigating probation officer. Defense counsel
acknowledged that sentencing courts rely heavily on
PSI reports, referring to this tendency in justifying his
inaction. The tendency for sentencing courts to rely on
PSI reports, however, only further necessitated defense
counsel’s advocacy on the petitioner’s behalf at the
sentencing hearing. As the Seventh Circuit noted, in
applying Cronic, defense counsel ‘‘had a role to play
in this sentencing . . . .’’ Patrasso v. Nelson, supra,121 F.3d 304.
The respondent, echoed by the dissent, maintains
that defense counsel’s decision was strategic because
the trial court was fully aware of all of the facts and any
argument would have been perfunctory and possibly
harmful in the emotional setting. The respondent and
the dissent rely on defense counsel’s testimony that the
hearing was ‘‘emotion-packed,’’ and that the trial court
was ‘‘fully aware’’ of the petitioner’s background.12 This
explanation, however, is unreasonable in light of the
twenty-five year cap, the right to argue in the plea
agreement, the trial court’s modest sympathy for the
petitioner, the fact that the trial court expressly stated
that it had not yet made its decision and had contem-
plated between twenty and twenty-five years, and the
PSI’s twenty-five year recommendation. See Tucker v.
Day, supra, 969 F.2d 159 (holding that defense counsel’s
reliance on court’s familiarity with case at sentencing
did not fulfill constitutional requirement that defendant
be assisted by counsel at his sentencing hearing, other-
wise, ‘‘[t]aken to its logical conclusion, this argument
would permit the state to deny counsel to [the defen-
dant] at . . . sentencing’’).13 Defense counsel’s
agreement with the prosecutor under these circum-
stances differs vastly from simply forgoing cross-exami-
nation of certain witnesses or holding the state to its
burden of proof, contrary to the respondent’s
assertions.
The respondent and the dissent emphasize the well
established principle that courts must, in examining a
claim of ineffective assistance of counsel, be highly
deferential to counsel’s decisions. As the Federal Dis-
trict Court for the District of Maine has aptly stated,
however, we ‘‘need not defer in cases such as this one
where the decision in effect deprives a defendant of
counsel . . . .’’ Gardiner v. United States, supra, 679
F. Supp. 1146. In the present case, the petitioner has
overcome the presumption that defense counsel’s
agreement with the prosecution ‘‘might be considered
sound trial strategy.’’ (Internal quotation marks omit-
ted.) Strickland v. Washington, supra, 466 U.S. 689.
We note that defense counsel’s agreement might well
be characterized as strategic if the record revealed that
counsel feared that arguing for his client might lead the
court to reject the plea deal altogether. See United
States v. Lewis, 633 F.3d 262, 270 (4th Cir. 2011) (stating
that district courts always have authority to accept or
reject any plea agreement); see also State v. Garvin,
242 Conn. 296, 315, 699 A.2d 921 (1997) (McDonald, J.,
concurring and dissenting). However, we find nothing
in the record indicating or alluding to this concern.14 On
the contrary, defense counsel expressed his confidence
that the trial court would not reject the plea agreement
upon reviewing the petitioner’s criminal record in the
PSI. Defense counsel stated that the petitioner’s crimi-
nal record ‘‘couldn’t have hurt him’’ at sentencing and
‘‘only could have helped him,’’ had it not been so exten-
sive, because of the twenty-five year cap. The trial
court’s comments also belie the unlikelihood of this
outcome. The trial court reiterated several times—at
the plea colloquy, at the beginning of the sentencing
hearing, and after the victim’s father’s statement—that
the plea agreement had a floor and cap, with the right
to argue for the appropriate sentence.
By not only failing to advocate for the petitioner
at his sentencing hearing, but also agreeing with the
prosecutor’s recommendation of the maximum sen-
tence, defense counsel ‘‘entirely fail[ed] to subject the
prosecution’s case to meaningful adversarial testing
. . . .’’ United States v. Cronic, supra, 466 U.S. 659. As
the United States Supreme Court stated, ‘‘[t]he defen-
dant has a legitimate interest in the character of the
procedure which leads to the imposition of sentence
even if he may have no right to object to a particular
result of the sentencing process.’’ (Emphasis added.)
Gardner v. Florida, 430 U.S. 349, 358, 97 S. Ct. 1197,
51 L. Ed. 2d 393 (1977). Thus, we conclude that defense
counsel’s forfeiture of his right to argue for a lesser
sentence to agree with the prosecutor’s recommenda-
tion warrants application of Cronic. Prejudice may
therefore be presumed and the petitioner has asserted
a valid claim of ineffective assistance of counsel.
The judgment of the Appellate Court is reversed only
with respect to the petitioner’s claim of ineffective assis-
tance of counsel at sentencing, and the case is
remanded to that court with direction to reverse the
judgment of the habeas court on that claim and to
remand the case to the habeas court with direction to
grant the petition for a writ of habeas corpus on that
claim, to vacate the petitioner’s sentence, and to order
a new sentencing hearing.
In this opinion ROGERS, C. J., and PALMER and
McDONALD, Js., concurred.
1
We granted the petitioner’s petition for certification to appeal limited
to the following issue: ‘‘Did the Appellate Court properly conclude that the
habeas court correctly determined that, under Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and its progeny,
prejudice could not be presumed when, at sentencing, defense counsel
stated only that he agreed fully with the state and made no argument on
behalf of the petitioner, even though the plea agreement permitted the
petitioner to argue for less than the maximum possible sentence of twenty-
five years imprisonment?’’ Davis v. Commissioner of Correction, 311 Conn.
921, 86 A.3d 467 (2014).
2
The petitioner also claimed that he was denied effective assistance based
on defense counsel’s failure to: ‘‘(1) investigate the petitioner’s case, (2)
adequately advise the petitioner throughout the pretrial and postplea stages,
and (3) present mitigating evidence in pretrial negotiations . . . .’’ Davis
v. Commissioner of Correction, 147 Conn. App. 343, 345, 81 A.3d 1226 (2013).
These claims were rejected by both the habeas court and the Appellate Court.
Id. These additional claims are not, however, at issue in the present appeal.
See footnote 1 of this opinion.
3
Judge Alvord authored a concurring opinion, which stated that defense
counsel’s performance was not deficient because defense counsel had ‘‘care-
fully assessed the volatile situation and made the conscious decision to
forgo argument for a lesser sentence . . . .’’ Davis v. Commissioner of
Correction, supra, 147 Conn. App. 365.
4
The petitioner originally made fourteen separate claims of ineffective
assistance of counsel before the habeas court—none of which invoked
Cronic by name. Davis v. Commissioner of Correction, supra, 147 Conn.
App. 347. Although this court recently stated that ineffective assistance
claims raised for the first time during a habeas appeal are not subject to
review under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),
unless they arise out of the actions or omissions of the habeas court itself;
see Moye v. Commissioner of Correction, 316 Conn. 779, 787, 114 A.3d 925(2015); the petitioner in the present case did not raise any new claim on
appeal, he merely refined his argument as to the same alleged deficiency.
The petitioner cited Strickland in his habeas petition. Strickland introduces
the concept of presumption of prejudice, which Cronic later refines. See
Strickland v. Washington, supra, 466 U.S. 692 (‘‘[i]n certain . . . contexts
[relating to the sixth amendment to the United States constitution], prejudice
is presumed’’). Thus, the petitioner did not introduce an entirely new theory
on appeal, obviating our concerns about fairness to the trial court and
opposing party. See Moye v. Commissioner of Correction, supra, 789; cf.
Johnson v. Commissioner of Correction, 288 Conn. 53, 58, 951 A.2d 520(2008) (declining review when, with regards to sentencing court’s calculation
of defendant’s presentence confinement credit, defendant argued due pro-
cess and equal protection to habeas court and ex post facto to Appellate
Court), overruled in part on other grounds by State v. Elson, 311 Conn. 726,
91 A.3d 862 (2014).
5
In a California case, at a sentencing hearing on a rape conviction, counsel
failed to argue for less than the eleven year maximum recommended by
the prosecution, although the plea agreement had a sentencing range of
between eight and eleven years. People v. Jacobs, 220 Cal. App. 4th 67, 74,
162 Cal. Rptr. 3d 739 (2013). After the prosecution presented aggravating
evidence, counsel stated, ‘‘I think the offer . . . indicated was [eleven]
years,’’ which was ‘‘the reason he [pleaded].’’ (Internal quotation marks
omitted.) Id. The court applied Strickland, but noted specifically that the
parties did not argue for the application of Cronic. Id., 76–77.
6
The dissent accurately notes that the Cronic rule was not applied in
Cronic itself. This nuance, however, is inapposite to the present case because
the court, after listing the three circumstances in which prejudice may be
presumed, held that prejudice could not be presumed with respect to the
third category. United States v. Cronic, supra, 466 U.S. 662. Only the second
category is at issue in the present case. In Cronic, the court described the
categories as: (1) when counsel is denied at a critical stage of the proceeding;
(2) when counsel ‘‘entirely fails to subject the prosecution’s case to meaning-
ful adversarial testing’’; and (3) when counsel is called upon to render
assistance in a situation in which no competent attorney could do so. Id.,659–60. Turning to the facts of that case, the Supreme Court stated: ‘‘While
the [United States] Court of Appeals [for the Tenth Circuit] purported to
apply a standard of reasonable competence, it did not indicate that there
had been an actual breakdown of the adversarial process during the trial
of this case. Instead it concluded that the circumstances surrounding the
representation of [the] respondent mandated an inference that counsel was
unable to discharge his duties.’’ (Emphasis added.) Id., 657–58.
7
With no other comments, we cannot read this statement in any other way.
8
During the habeas trial, defense counsel offered the following testimony:
‘‘I think at the time that we entered the plea I may not have been entirely
familiar with the extent of his criminal record, so I remember at the sentenc-
ing hearing, once having . . . well, or prior to it, having reviewed the [PSI],
that his criminal record was a lot more extensive than I originally had
anticipated, that was a problem, and secondly, that the impact of the victim’s
family at the sentencing hearing was quite substantial in their grief and their
loss and it was very persuasive to the court under the circumstances. So
my intention when we entered the plea with a floor and a cap was the hopes
that I could argue lack of a substantial criminal record, which turned out
to be much more than I had anticipated . . . . ’’
Defense counsel also offered the following testimony on cross-examina-
tion by counsel for the respondent at the habeas trial:
‘‘Q. . . . Did you have a notion about where [the trial court] was going
to come in at sentencing based upon your . . . .
‘‘A. Well, I knew it was going to be between twenty and twenty-five years.
I thought that there may be some slight possibility he would give him
something less than the twenty-five. As it turned out, that likelihood sort
of dissipated during the course of the sentencing hearing.’’
9
Specifically, defense counsel testified that ‘‘anybody that’s doing twenty-
five years in prison, I can’t say that I consider it to be a victory, but certainly
I think it’s the best outcome he could have hoped for under the circum-
stances.’’
Defense counsel further testified that ‘‘the bottom line is . . . the twenty-
five year sentence under the circumstances was pretty good and anything
we could have gotten less was gravy. . . . [M]y attitude was, look, if he
can get twenty-five with a manslaughter plea based on this set of facts, he’s
done as good as he can conceivably do in my experience, which I would
consider vast. So, you know, twenty-five would have been as good as we
could do. If we could get any lower, all the better. As it turned out, that didn’t
happen and it was not likely, but the twenty-five was certainly satisfactory to
me. And I’m not saying [that] it should be satisfactory to [the petitioner],
but that’s as good as he could have done and he could have done a lot
worse, quite frankly.’’
10
Acquiescing to a prosecutor’s recommendation of the maximum sen-
tence may actually harm a defendant’s chances of receiving a lesser sentence
even more so than if defense counsel had said nothing at all. It is a powerful
image when defense counsel, a supposed zealous advocate for the defendant,
agrees to the prosecutor’s sentencing recommendation immediately before
the judge makes his or her decision. See Osborn v. Shillinger, supra, 861
F.2d 629 (applying Cronic when defense counsel ‘‘turned against’’ his client,
abandoned his duty of loyalty, and ‘‘effectively join[ed] the state’’). Defense
counsel’s agreement, in lieu of advocacy, could well have dispelled any
hesitation the trial court may have had about imposing the maximum
sentence.
11
During the habeas trial, the following colloquy occurred between
defense counsel and counsel for the petitioner:
‘‘Q. Had you been before [this particular judge] before?
‘‘A. Many times.
‘‘Q. Okay. If [this judge] said he was going to give you the right to argue,
did he pretty much mean that?
‘‘A. Yes.
‘‘Q. He didn’t just say it even though he had no intention?
‘‘A. . . . This was a meaningful right to argue for less. That was agreed.
He agreed to listen to an argument and to consider it. There are times when
he’ll say, you know, I’ll give you a right to argue for less and tell the defendant
that it’s highly unlikely he’ll give him less. This [was] not one of those cases.’’
(Emphasis added.)
12
Specifically, at the habeas trial, defense counsel testified as follows:
‘‘[At sentencing] there was a large crowd of people, most of whom were
related to the victim . . . . It was one of those very emotion-packed hear-
ings . . . . The judge was clearly affected by that fact and sympathetic to
the family and sympathetic to the victim. He was fully aware of what the
[petitioner’s] record was and his background was through the [PSI]. None
of the facts, as presented by either the victim’s family or the state, were in
dispute, and so at that point the only thing I could have said would have
been perfunctory and under the circumstances probably would have elicited
more of a negative response . . . .’’
13
By not doing so, defense counsel reinforced the oft perceived notion
that public defenders are ‘‘in cahoots’’ with the state. See, e.g., State v.
Stewart, Ohio Court of Appeals, Docket No. 02CA29, (Ohio App. September
5, 2003).
14
When asked by counsel for the petitioner at the habeas trial whether
the trial court could have possibly ‘‘give[n] [the petitioner] more’’ after
reviewing the PSI if it was unfavorable, the petitioner’s trial counsel did
not appear to register this as a concern:
‘‘Q. . . . [A]fter he [pleaded] and they ordered the PSI and he knew that
you might be able to argue for less, did you tell him that the judge could
possibly give him more after the PSI if it wasn’t favorable?
‘‘A. More than what?
‘‘Q. Or rather give him the maximum amount that [the plea agreement]
said rather than . . . .
‘‘A. Absolutely. Yeah.’’