Thiersaint v. Commissioner of Correction ( 2015 )

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EMMANUEL THIERSAINT v. COMMISSIONER OF
CORRECTION
(SC 19134)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued April 29, 2014—officially released April 14, 2015
Matthew A. Weiner, deputy assistant state’s attorney,
with whom were Marjorie Allen Dauster, senior assis-
tant state’s attorney, and, on the brief, David I. Cohen,
state’s attorney, and Marcia A. Pillsbury, deputy assis-
tant state’s attorney, for the appellant (respondent).
Kate Mollison and Celso Perez, law student interns,
with whom were Muneer I. Ahmad, James Swaine,
and, on the brief, Robert Fuentes, law student intern,
for the appellee (petitioner).
Elisa L. Villa filed a brief for the Connecticut Crimi-
nal Defense Lawyers Association as amicus curiae.
Christopher N. Lasch filed a brief on behalf of various
legal scholars as amici curiae.
Opinion
ZARELLA, J. The respondent, the Commissioner of
Correction, appeals from the judgment of the habeas
court granting the amended petition for a writ of habeas
corpus filed by the petitioner, Emmanuel Thiersaint, on
the ground that the petitioner’s trial counsel rendered
ineffective assistance by failing to advise him, pursuant
to the rule announced in Padilla v. Kentucky, 559 U.S.
356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), that his
conviction for possession of narcotics with intent to
sell, an aggravated felony, would result in his almost
certain deportation and permanent removal from the
United States.1 The respondent claims that the judgment
should be reversed because the habeas court incor-
rectly concluded that Padilla applies retroactively to
the petitioner’s guilty plea, and, therefore, the petitioner
was misadvised and prejudiced under Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984). The petitioner replies that this court
should conclude that Padilla applies retroactively as a
matter of Connecticut law and affirm the habeas court’s
judgment because: (1) the requirement in Padilla that
defense counsel provide accurate immigration advice
to noncitizen clients was required by the professional
norms in Connecticut at the time of his trial; (2) even
if Padilla announced a new rule, Connecticut habeas
petitions function as de facto direct review of ineffec-
tive assistance claims, and both old and new rules are
applicable on direct review; (3) Connecticut has alterna-
tive procedural mechanisms to ensure the finality of
criminal judgments; and (4) Connecticut historically
has given special solicitude to the right to counsel and
should continue to uphold that tradition in the present
case. In the alternative, the petitioner argues that his
trial counsel provided him with gross misadvice that
rendered his plea involuntary, unintelligent, and thus
invalid, and that his counsel failed to provide effective
assistance because he did not pursue a drug depen-
dency defense.2 We conclude that Padilla does not
apply retroactively to the petitioner’s plea and that the
petitioner cannot prevail on either of the alternative
grounds. Accordingly, we reverse the judgment of the
habeas court.
The following relevant facts and procedural history
are set forth in the habeas court’s opinion. ‘‘In 1994,
when the petitioner was fourteen years old, he left his
native country of Haiti with his father and came to the
United States. He entered the United States legally, with
a ‘green card’ and thus held a status as a permanent
resident of the United States. He has lived in the United
States for almost two decades, since 1994, and attended
high school here. He has no relatives in Haiti.
‘‘A few years after the petitioner arrived in the United
States, he was in a serious car accident, during which
he was critically injured. As a result of his injuries, the
petitioner had to have his right leg amputated above
the knee and since that time has required either [a]
prosthesis to walk or a wheelchair to get around. . . .
‘‘After the petitioner’s accident, he spent eight
months in the hospital, where he was given a number
of drugs for his injuries. After leaving the hospital, the
petitioner developed a drug addiction to crack cocaine.
The petitioner has not used illegal drugs for several
years. He presently lives with his girlfriend of seven
years and their young daughter. . . .
‘‘On September 20, 2006, the petitioner was arrested
and charged in two separate cases with the following
charges in both cases: (1) sale of narcotics in violation
of General Statutes [Rev. to 2005] § 21a-278 (b); (2) sale
of narcotics within 1500 feet of a school in violation
of General Statutes § 21a-278a (b); (3) possession of
narcotics in violation of General Statutes § 21a-279 (a);
and (4) possession of narcotics within 1500 feet of a
school in violation of . . . § 21a-279 (d). The charges
stemmed from two $20 sales of crack cocaine by the
petitioner to an undercover police officer. At the time
of his 2006 arrest, the petitioner was on probation,
having been convicted [in 2004] after a plea of posses-
sion of a controlled substance in violation of . . .
§ 21a-279 (a). As [a] condition of his probation, the court
ordered ‘substance abuse evaluation and treatment.’
‘‘The petitioner was arraigned on the new charges
on September 29, 2006, at which time he pleaded not
guilty. The petitioner could not make the bond set by
the court and therefore, remained incarcerated during
the pretrial proceedings in this case. Because he could
not afford his own attorney, [S]pecial [P]ublic
[D]efender [John] Imhoff was appointed to represent
him.
‘‘[Imhoff] is an experienced criminal defense attor-
ney. In 2006 . . . Imhoff had a state contract to repre-
sent indigent criminal defendants for a fee. In the
petitioner’s case . . . Imhoff was paid $250, which cov-
ered his fee for all of the pretrial proceedings in this
case. When . . . Imhoff was appointed to represent
the petitioner, he knew the petitioner was from Haiti,
and had entered the United States legally.
‘‘Although the petitioner’s record evinced a possible
substance abuse history . . . Imhoff did not seek to
have the petitioner evaluated for substance abuse. Also,
even though [a diversionary program operated by the
former Connecticut Alcohol and Drug Abuse Commis-
sion, now the Department of Mental Health and Addic-
tion Services] under General Statutes § 17a-696, was
available to the petitioner . . . Imhoff did not pursue
it because he did not believe the court would grant [the
petitioner admission into] the program.
‘‘[Imhoff] engaged in plea negotiations with the state’s
attorney and the court and ultimately received a court
offer of seven . . . years [of imprisonment] suspended
after two . . . years followed by five . . . years’ pro-
bation with no mandatory minimums on all charges if
[the petitioner pleaded] to one count of possession with
intent to sell under General Statutes § 21a-277 (a). Dur-
ing the plea negotiations . . . Imhoff asked the state
to reduce the charge to possession only, but the state
declined because the petitioner had sold drugs to an
undercover police officer. . . . Imhoff did not raise the
issue of a reduction in the charge to possession with
the court during the supervised pretrial. In seeking a
reduction of the charge to possession, Imhoff did not
explain to the state or the court that the petitioner was
subject to mandatory deportation or suggest that the
charge be reduced in exchange for the petitioner agree-
ing to do more prison time on the reduced charge.
‘‘The petitioner testified that . . . Imhoff met with
him approximately five times in the holding cells in the
Norwalk courthouse, and did not advise him regarding
the immigration consequences of his plea. . . . Imhoff
testified that he told the petitioner that he should con-
sult with an attorney knowledgeable in immigration law
regarding the immigration consequences of the plea, as
well as any postconviction immigration proceedings.
Even though the petitioner was incarcerated and indi-
gent . . . Imhoff did not obtain an immigration [attor-
ney] for the petitioner to consult with nor did he himself
consult with such an attorney on the petitioner’s
behalf.’’ (Footnote omitted.)
‘‘[Imhoff] had participated in seminars on represent-
ing noncitizen defendants, including one held in 2006
and sponsored by the [Chief] [P]ublic [D]efender’s
[O]ffice. He was provided with a manual . . . which
provided guidance specific to representing noncitizen
criminal defendants in Connecticut. [J. Baron & A. Wal-
msley, A Brief Guide to Representing Noncitizen Crimi-
nal Defendants in Connecticut (Rev. 2005).] The manual
specifically and clearly indicates that § 21a-277 (a), pos-
session with intent to sell, is an ‘aggravated felony,’
which it states is the ‘worst category of criminal
offenses for immigration purposes.’ [Id., p. 4.]’’
‘‘Had . . . Imhoff consulted with an immigration
attorney, he would have been advised to avoid any
conviction that would constitute an ‘aggravated felony’
at all costs because a conviction under § 21a-277 (a)
would constitute an aggravated felony that would sub-
ject the petitioner to mandatory detention and deporta-
tion, and bar him from asserting legitimate defenses to
removal. . . .
‘‘Despite believing that the petitioner needed separate
counsel knowledgeable in immigration matters to
advise the petitioner regarding the immigration conse-
quences of the plea offer . . . Imhoff nonetheless
claims to have advised the petitioner regarding these
issues. Although . . . Imhoff could not recall precisely
what he told the petitioner . . . he could recall . . .
[that he] told the petitioner that he would ‘probably’
have to deal with immigration after his state criminal
proceedings concluded, that he would have an immigra-
tion hearing ‘and if you have a hearing there is some
chance you might win, but I thought it was very
unlikely,’ and ‘it’d be very difficult not to be deported.’
‘‘[Imhoff] did not tell the petitioner that because his
plea to the charge of possession with intent to sell
under § 21a-277 (a) would result in a conviction of an
aggravated felony under federal law, that he would not
return home because he would be mandatorily detained
pending deportation after his sentence was completed,
that he would have no legitimate defenses to deporta-
tion, that deportation was a virtual certainty, and that
after being deported, he would be permanently barred
from returning to the United States.
‘‘On April 9, 2007, the petitioner pleaded guilty to
possession with intent to sell in violation of . . . § 21a-
277 (a) and received a sentence of seven . . . years
[of imprisonment] suspended after two . . . years, fol-
lowed by five . . . years of probation. The petitioner
was canvassed by the court as to his decision to plead
guilty. During the canvass, the court asked the peti-
tioner, pursuant to General Statutes § 54-1j, if he under-
stood ‘that if you’re not a citizen of the United States
of America, then a conviction for the offense may have
the consequence of deportation, exclusion from read-
mission to this country, or denial of naturalization pur-
suant to the laws of this country.’ The petitioner
responded that he understood. . . .
‘‘Immediately upon being released from state prison
on September 18, 2008, the petitioner was taken into
custody by the United States Immigration and Customs
Enforcement Agency . . . and the [federal govern-
ment] commenced deportation/removal proceedings
against him. The basis of the removal order was the
state court conviction for possession of narcotics with
intent to sell, and a 2004 conviction for possession of
a controlled substance.
‘‘On February 27, 2009, the petitioner’s application
for deferral of removal under the [United Nations Con-
vention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, an international
rights treaty adopted in 1984], the only defense available
to the petitioner, was denied and the petitioner was
ordered removed from the United States and returned
to Haiti. The petitioner appealed [the] removal order
to the Board of Immigration Appeals, which dismissed
[the appeal] on May 27, 2009. Based on the changed
country conditions in Haiti in the wake of the January,
2010 earthquake, the petitioner filed a motion to reopen
his removal proceedings on August 2, 2011. That motion
was denied on September 19, 2011.
‘‘The petitioner filed petitions for review of both the
removal order and the denial of the motion to open to
the United States Court of Appeals for the Second Cir-
cuit, which consolidated both matters and denied them
both on February 28, 2012. Thus, the petitioner has
exhausted his federal challenges to the order of
removal, and is subject to a final removal order. How-
ever, due to the physical conditions in Haiti stemming
from natural disasters, deportations to that country
have been temporarily deferred. The petitioner remains
in the United States and has been released from federal
custody, but is subject to a final order of removal and
may be removed at any time.’’ (Footnotes omitted.)
The petitioner filed a petition for a writ of habeas
corpus on September 24, 2009, and an amended petition
on November 7, 2011. The petitioner claimed ineffective
assistance of counsel under Padilla on the ground that
his attorney had failed to advise him that the state’s plea
offer and his plea of guilty and subsequent conviction
would constitute an aggravated felony under federal
law and subject him to virtually automatic deportation.
The petitioner thus sought habeas relief ‘‘in the interests
of justice’’ and under the federal and state consti-
tutions.3
A three day trial was held on the habeas petition in
April and May, 2012. In its memorandum of decision
dated December 7, 2012, the habeas court initially con-
cluded that the petitioner’s federal sixth amendment
ineffective assistance claim was governed by the two-
pronged test set forth in Strickland v. Washington,
supra, 466 U.S. 687, as modified by Hill v. Lockhart,
474 U.S. 52, 56, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985).
See our discussion in part I of this opinion. The court
then concluded that Padilla applied retroactively to the
petitioner’s guilty plea and that the petitioner had met
his burden under the performance and prejudice prongs
of the test enunciated in Strickland, as modified by
Hill. The court finally concluded that the trial court’s
general plea canvass was insufficient to cure counsel’s
deficient performance. This appeal by the respondent
followed.4
On appeal, the respondent claims that Padilla does
not apply retroactively to the petitioner’s guilty plea
and that the judgment should be reversed because the
United States Supreme Court determined in Chaidez
v. United States, U.S. , 133 S. Ct. 1103, 1113, 185
L. Ed. 2d 149 (2013), that the rule announced in Padilla
was a ‘‘new rule,’’ and, therefore, the rule applies only
to future criminal matters or to matters pending on
direct appeal when Padilla was decided. The respon-
dent also claims that the petitioner cannot prevail on
his state law and other claims because he made no such
claims in his habeas petition and, in any event, the
rule in Padilla represents a departure from established
Connecticut law. The petitioner replies that the rule in
Padilla may be applied retroactively as a matter of state
law and, in the alternative, that his trial counsel gave
him gross misadvice that rendered his plea unknowing,
unintelligent, and involuntary. He also argues that his
trial counsel was ineffective because he failed to pursue
a drug dependency defense. We address each of these
claims in turn.
I
We begin with the respondent’s claim that Padilla
does not apply retroactively to the petitioner’s guilty
plea under federal law. The standard of review and the
law governing ineffective assistance of counsel claims
is well established. ‘‘Although the underlying historical
facts found by the habeas court may not be disturbed
unless they were clearly erroneous, whether those facts
constituted a violation of the petitioner’s rights under
the sixth amendment is a mixed determination of law
and fact that requires the application of legal principles
to the historical facts of this case. . . . As such, that
question requires plenary review by this court unfet-
tered by the clearly erroneous standard. . . .
‘‘A criminal defendant is constitutionally entitled to
adequate and effective assistance of counsel at all criti-
cal stages of criminal proceedings. Strickland v. Wash-
ington, [supra, 466 U.S. 686]. This right arises under
the sixth and fourteenth amendments to the United
States constitution and article first, § 8, of the Connecti-
cut constitution. Copas v. Commissioner of Correction,
234 Conn. 139, 153, 662 A.2d 718 (1995). . . . It is axi-
omatic that the right to counsel is the right to the effec-
tive assistance of counsel.’’ (Citations omitted; internal
quotation marks omitted.) Gonzalez v. Commissioner
of Correction, 308 Conn. 463, 469–70, 68 A.3d 624, cert.
denied sub nom. Dzurenda v. Gonzalez, U.S. ,
134 S. Ct. 639, 187 L. Ed. 2d 445 (2013).
A claim of ineffective assistance of counsel is gov-
erned by the two-pronged test set forth in Strickland
v. Washington, supra, 466 U.S. 687. 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 pro-
ceedings would have been different had it not been for
the deficient performance.’’ (Emphasis omitted.) John-
son v. Commissioner of Correction, 285 Conn. 556, 575,
941 A.2d 248 (2008). 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.’’ Hill v. Lockhart, supra, 474 U.S. 59. An ineffective
assistance of counsel claim ‘‘will succeed only if both
prongs [of Strickland] are satisfied.’’ (Internal quotation
marks omitted.) Mozell v. Commissioner of Correction,
291 Conn. 62, 77, 967 A.2d 41 (2009).
In Padilla, the United States Supreme Court consid-
ered whether advising a noncitizen criminal defendant
of the possible deportation consequences of a guilty
plea falls within the scope of representation required
of criminal defense attorneys by the sixth amendment
to the federal constitution and concluded that it did.
Padilla v. Kentucky, supra, 559 U.S. 364–66. The court
reasoned that ‘‘changes to our immigration law have
dramatically raised the stakes of a noncitizen’s criminal
conviction. The importance of accurate legal advice for
noncitizens accused of crimes has never been more
important. These changes confirm our view that, as a
matter of federal law, deportation is an integral part—
indeed, sometimes the most important part—of the pen-
alty that may be imposed on noncitizen defendants who
plead guilty to specified crimes.’’ (Footnote omitted.)
Id., 364. The court continued: ‘‘We have long recognized
that deportation is a particularly severe ‘penalty’ . . .
but it is not, in a strict sense, a criminal sanction.
Although removal proceedings are civil in nature . . .
deportation is nevertheless intimately related to the
criminal process. Our law has enmeshed criminal con-
victions and the penalty of deportation for nearly a
century . . . . And, importantly, recent changes in our
immigration law have made removal nearly an auto-
matic result for a broad class of noncitizen offenders.
Thus, we find it ‘most difficult’ to divorce the penalty
from the conviction in the deportation context. . . .
Moreover, we are quite confident that noncitizen defen-
dants facing a risk of deportation for a particular offense
find it even more difficult.’’ (Citations omitted.) Id.,
365–66. The court thus concluded that ‘‘advice regard-
ing deportation is not categorically removed from the
ambit of the [s]ixth [a]mendment right to counsel.’’
Id., 366.
Having resolved this threshold question, the court in
Padilla next concluded that ‘‘[t]he weight of prevailing
professional norms supports the view that counsel must
advise [his or] her client regarding the risk of deporta-
tion’’; id., 367; and that whether counsel has provided
such advice is properly considered under the first prong
of Strickland. Id., 366–67. The court then determined
that the defendant, Jose Padilla, had sufficiently alleged
a constitutional violation under Strickland because the
deportation consequences of his plea were ‘‘truly clear’’;
id., 369; and, therefore, his counsel’s duty to give correct
advice was ‘‘equally clear.’’5 Id.
The United States Supreme Court did not consider
whether the rule in Padilla applies retroactively to
defendants whose convictions were final by the time
that case was decided until approximately three years
later in Chaidez. Relying on the principles set forth in
Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L.
Ed. 2d 334 (1989), the court in Chaidez agreed with the
government that Padilla had ‘‘announced a ‘new rule’
and, under Teague, such rules do not apply in collateral
challenges to already-final convictions.’’ Chaidez v.
United States, supra, 133 S. Ct. 1106. The court
explained as follows: ‘‘Teague makes the retroactivity
of our criminal procedure decisions turn on whether
they are novel. When we announce a ‘new rule,’ a person
whose conviction is already final may not benefit from
the decision in a habeas or similar proceeding. Only
when we apply a settled rule may a person avail herself
of the decision on collateral review. . . .
‘‘[A] case announces a new rule, Teague explained,
when it breaks new ground or imposes a new obligation
on the government. . . . To put it differently . . . a
case announces a new rule if the result was not dictated
by precedent existing at the time the defendant’s convic-
tion became final. . . . And a holding is not so dictated,
we later stated, unless it would have been apparent to
all reasonable jurists. . . .
‘‘But that account has a flipside. Teague also made
clear that a case does not announce a new rule, [when]
it [is] merely an application of the principle that gov-
erned a prior decision to a different set of facts. . . .
[W]here the beginning point of our analysis is a rule of
general application, a rule designed for the specific
purpose of evaluating a myriad of factual contexts, it
will be the infrequent case that yields a result so novel
that it forges a new rule, one not dictated by precedent.
. . . Otherwise said, when all we do is apply a general
standard to the kind of factual circumstances it was
meant to address, we will rarely state a new rule for
Teague purposes.’’ (Citations omitted; emphasis
altered; footnote omitted; internal quotation marks
omitted.) Id., 1107.
In further explaining why the rule in Padilla could
not be given retroactive effect under the principles
espoused in Teague, the court in Chaidez added: ‘‘Padi-
lla would not have created a new rule had it only applied
Strickland’s general standard to yet another factual
situation—that is, had Padilla merely made clear that
a lawyer who neglects to inform a client about the risk
of deportation is professionally incompetent.
‘‘But Padilla did something more. Before deciding if
failing to provide such advice fell below an objective
standard of reasonableness, Padilla considered a
threshold question: Was advice about deportation cate-
gorically removed from the scope of the [s]ixth [a]mend-
ment right to counsel because it involved only a
collateral consequence of a conviction, rather than a
component of the criminal sentence? . . . In other
words, prior to asking how the Strickland test applied
(Did this attorney act unreasonably?), Padilla asked
whether the Strickland test applied (Should we even
evaluate if this attorney acted unreasonably?). And as
we will describe, that preliminary question about
Strickland’s ambit came to the Padilla [c]ourt unset-
tled—so that the [c]ourt’s answer (Yes, Strickland gov-
erns here) required a new rule.’’ (Citation omitted;
emphasis in original; footnote omitted; internal quota-
tion marks omitted.) Id., 1108.
The court in Chaidez also observed that the scope
of Strickland was unsettled when Padilla was decided
because the court in Hill v. Lockhart, supra, 474 U.S.
52, more than twenty-five years earlier had ‘‘explicitly
left open whether advice concerning a collateral conse-
quence must satisfy [s]ixth [a]mendment require-
ments.’’ Chaidez v. United States, supra, 133 S. Ct. 1108.
As a result, the ‘‘non-decision’’ in Hill ‘‘left the state
and lower federal courts to deal with the issue; and
they almost unanimously concluded that the [s]ixth
[a]mendment does not require attorneys to inform their
clients of a conviction’s collateral consequences,
including deportation.’’6 Id., 1109. The court in Chaidez
further observed that, ‘‘when we decided Padilla, we
answered a question about the [s]ixth [a]mendment’s
reach that we had left open, in a way that altered the
law of most jurisdictions . . . .’’ Id., 1110. By
‘‘breaching the previously chink-free wall between
direct and collateral consequences,’’ the court in Padi-
lla ‘‘broke new ground . . . .’’ (Internal quotation
marks omitted.) Id. This was because, before Padilla,
the court ‘‘had declined to decide whether the [s]ixth
[a]mendment had any relevance to a lawyer’s advice
about matters not part of a criminal proceeding’’; id.;
and there existed no precedent that ‘‘ ‘dictated’ the
answer’’; (emphasis in original) id.; whereas Padilla
rejected the categorical approach adopted by most state
and federal courts and was the first to make the Strick-
land test operative in the context of immigration conse-
quences. Id. The court in Chaidez thus concluded that
‘‘Padilla . . . announced a ‘new rule.’ ’’ Id., 1111.
Mindful of this legal precedent, we turn to the respon-
dent’s claim that the ruling in Padilla does not apply
retroactively to the petitioner’s guilty plea under federal
law. The habeas court’s memorandum of decision was
released on December 7, 2012, approximately two
months before release of the decision in Chaidez. In
fact, the habeas court acknowledged in a footnote that
the retroactive application of Padilla was an ‘‘open
question’’ that had been argued before the United States
Supreme Court in Chaidez only one month earlier. Nev-
ertheless, the habeas court rendered a decision and
concluded, without the benefit of the soon to be
released opinion in Chaidez, that the ruling in Padilla
was intended by that court to be applied retroactively
under federal law. As the preceding discussion indi-
cates, however, the court in Chaidez determined soon
thereafter that the ruling in Padilla was not to be given
retroactive effect. Id., 1113. Accordingly, we agree with
the respondent that Padilla does not apply retroactively
to the petitioner’s guilty plea under federal law.
II
The petitioner argues that, notwithstanding the deci-
sion in Chaidez, the judgment of the habeas court may
be affirmed as a matter of state law. The petitioner
contends that, under Danforth v. Minnesota, 552 U.S.
264, 282, 128 S. Ct. 1029, 169 L. Ed. 2d 859 (2008), this
court is authorized by federal law to apply the rule in
Padilla retroactively on state habeas review because
the court in Danforth limited application of the princi-
ples articulated in Teague to collateral review of state
decisions by federal courts. As a corollary to this argu-
ment, the petitioner contends that Teague does not
apply to his state law claims because this court recog-
nized in Luurtsema v. Commissioner of Correction,
299 Conn. 740, 753 n.14, 12 A.3d 817 (2011), that state
courts are not bound by Teague.7 Nevertheless, should
this court apply the principles established in Teague,
the petitioner articulates several grounds on which the
court may find a constitutional violation under state
law. We agree with the petitioner’s interpretation of
Danforth but do not agree that Connecticut courts
should abandon Teague. We also disagree with the peti-
tioner that, if Teague applies, there is a constitutional
violation in the present case under Connecticut law.
A
We begin by examining Danforth. In that case, the
United States Supreme Court explained: ‘‘[T]he Teague
rule of nonretroactivity was fashioned to achieve the
goals of federal habeas while minimizing federal intru-
sion into state criminal proceedings. It was intended to
limit the authority of federal courts to overturn state
convictions—not to limit a state court’s authority to
grant relief for violations of new rules of constitutional
law when reviewing its own . . . convictions.’’ Dan-
forth v. Minnesota, supra, 552 U.S. 280–81. The court
further explained that, because ‘‘[f]ederalism and com-
ity considerations are unique to federal habeas review
of state convictions . . . comity militate[s] in favor of
allowing state courts to grant habeas relief to a broader
class of individuals than is required by Teague.’’ (Cita-
tion omitted; emphasis in original.) Id., 279–80. The
petitioner is thus correct in claiming that, under Dan-
forth, state courts may give broader effect to new con-
stitutional rules of criminal procedure than Teague
allows in federal habeas review.
B
The petitioner next argues that Teague should not
apply in the present case because our decision in Luurt-
sema suggested that this court was not bound by
Teague. In Luurtsema, we stated in a footnote that
‘‘the rules governing the retroactive application of new
procedural decisions . . . derive from Teague v. Lane,
[supra, 489 U.S. 288]’’; Luurtsema v. Commissioner of
Correction, supra, 299 Conn. 753 n.14; but that Teague
specified that ‘‘new rules of criminal procedure do not
apply retroactively to already final judgments in federal
habeas proceedings unless they fall under one of several
specified exceptions.’’8 Id. We also stated in Luurtsema
that, ‘‘[a]lthough this court has in the past applied the
Teague framework to state habeas proceedings as well
. . . the United States Supreme Court recently held in
Danforth v. Minnesota, [supra, 552 U.S. 282], that the
restrictions Teague imposes on the fully retroactive
application of new procedural rules are not binding on
the states.’’ (Citation omitted.) Luurtsema v. Commis-
sioner of Correction, supra, 753 n.14.9
Contrary to the petitioner’s suggestion, our reference
in Luurtsema to Danforth did not mean that this court
was not bound by Teague, but, rather, was intended to
describe the reasoning in Danforth. Furthermore, even
the petitioner has recognized that, on the few occasions
when Connecticut courts have considered Teague, they
have applied its principles without hesitation. See State
v. Payne, 303 Conn. 538, 550 n.10, 34 A.3d 370 (2012)
(Teague retroactivity holding inapposite because new
rule of law is procedural); Duperry v. Solnit, 261 Conn.
309, 322, 803 A.2d 287 (2002) (habeas court improperly
declared and applied new constitutional rule in collat-
eral proceeding in contravention of principle enunci-
ated in Teague); Johnson v. Warden, 218 Conn. 791,
796–98, 591 A.2d 407 (1991) (habeas court improperly
applied Teague retroactivity holding to new nonconsti-
tutional rule of criminal procedure); Garcia v. Commis-
sioner of Correction, 147 Conn. App. 669, 677, 84 A.3d
1 (2014) (new procedural rule not retroactive under
Teague).10 Thirty-three other states and the District of
Columbia likewise apply Teague in deciding state law
claims.11 We nonetheless review the petitioner’s claim
that Teague should be abandoned in Connecticut
because this court has not previously been asked to
reexamine Teague in light of the Supreme Court’s recog-
nition in Danforth that states are not bound by federal
law when determining whether a new rule applies retro-
actively in a state collateral proceeding.
Despite the prevailing view among other jurisdic-
tions, the petitioner argues that Teague should be aban-
doned in Connecticut because the pool of applicants
who could seek relief under the retroactive application
of Padilla is extremely limited and the state’s interest
in fairness and due process protections weighs more
heavily than uniformity with the federal standard. We
disagree.
We note that, during the eight months following the
release of the decision in Chaidez, the Appellate Court
rejected three Padilla claims on the basis of Chaidez
and the Superior Court rejected one. See Alcena v.
Commissioner of Correction, 146 Conn. App. 370, 374,
76 A.3d 742 (per curiam), cert. denied, 310 Conn. 948,
80 A.3d 905 (2013); Saksena v. Commissioner of Correc-
tion, 145 Conn. App. 152, 158–59, 76 A.3d 192, cert.
denied, 310 Conn. 940, 79 A.3d 892 (2013); Gonzalez v.
Commissioner of Correction, 145 Conn. App. 28, 33,
74 A.3d 509, cert. denied, 310 Conn. 929, 78 A.3d 145
(2013) (per curiam); Gjini v. Warden, Superior Court,
judicial district of Tolland, Docket No. CV-10-4003834-
S (March 6, 2013). Thus, the petitioner’s claim that the
retroactive application of Padilla in Connecticut would
affect an extremely limited pool of applicants is not
necessarily true.12
We also observe that the state’s interest in fairness
and due process protections must be balanced against
the importance of the finality of convictions. We agree
with the court’s observation in Teague that ‘‘[a]pplica-
tion of constitutional rules not in existence at the time
a conviction became final seriously undermines the
principle of finality which is essential to the operation
of our criminal justice system. Without finality, the crim-
inal law is deprived of much of its deterrent effect.’’
Teague v. Lane, supra, 489 U.S. 309. We also agree with
the court in Teague that ‘‘[t]he costs imposed upon
the [states] by retroactive application of new rules of
constitutional law on habeas corpus . . . generally far
outweigh the benefits . . . . In many ways the applica-
tion of new rules to cases on collateral review may be
more intrusive than the enjoining of criminal prosecu-
tions . . . for it continually forces the [s]tates to mar-
shal resources in order to keep in prison defendants
whose trials and appeals conformed to the then-existing
constitutional standards.’’ (Citations omitted; emphasis
in original; internal quotation marks omitted.) Id., 310.
In other words, states will be required to maintain
records and expend additional administrative and finan-
cial resources on defendants for possibly many years
following their convictions in order to defend against
future habeas proceedings, which, if successful, may
result in the need for another trial. In addition, Teague
provides a framework that is relatively easy for courts
to apply and achieve consistent results. We are there-
fore not inclined to depart from Teague.
The petitioner maintains that Teague finality con-
cerns are inapplicable because Connecticut has mecha-
nisms such as the doctrine of res judicata to ensure the
finality of state criminal judgments and to avoid habeas
review of claims previously raised on direct review
or in other postconviction proceedings. We disagree.
Although the first opportunity to raise a claim of ineffec-
tive assistance relating to a guilty plea is in the trial
court through a motion to withdraw the plea; see Prac-
tice Book § 39-27 (4); there is no requirement that peti-
tioners must use that opportunity to raise such a claim.
Moreover, we have stated that the doctrine of res judi-
cata is limited ‘‘to claims that actually have been raised
and litigated in an earlier proceeding.’’ (Internal quota-
tion marks omitted.) Johnson v. Commissioner of Cor-
rection, 288 Conn. 53, 67, 951 A.2d 520 (2008). Thus, if
a petitioner has not filed a motion to withdraw a plea
or has not raised and fully litigated an ineffective assis-
tance of counsel claim in an earlier proceeding, he or
she is free to raise the claim in a habeas proceeding, as
petitioners often do. We therefore adopt the framework
established in Teague, with the caveat that, while fed-
eral decisions applying Teague may be instructive, this
court will not be bound by those decisions in any partic-
ular case, but will conduct an independent analysis and
application of Teague.
C
The petitioner next contends that, even if this court
applies Teague in deciding state habeas petitions, the
habeas court’s judgment in the present case should be
affirmed because the rule in Padilla that trial counsel
must provide accurate immigration advice to noncitizen
clients was required by prevailing professional norms
in Connecticut at the time of the petitioner’s trial and
by the relevant governing statutes, and, therefore, it
was not a new rule under Teague.13 As evidence of
prevailing professional norms, the petitioner relies on
the testimony of two expert witnesses, deemed credible
by the habeas court, that his trial counsel had a duty
to inform him of the virtual certainty of his deportation
and the impossibility of his return to the United States
should he plead guilty to an aggravated felony under
federal law. He also relies on the requirement in § 54-
1j14 that the trial court and defense counsel must inform
a noncitizen criminal defendant of the possible deporta-
tion consequences of a guilty plea. We disagree.
Although professional norms are intended to guide
the conduct of attorneys, the violation of a professional
norm does not necessarily render counsel’s representa-
tion constitutionally deficient. The court noted in Padi-
lla that professional norms ‘‘are guides to determining
what is reasonable . . . and not inexorable commands
. . . .’’ (Citations omitted; internal quotation marks
omitted.) Padilla v. Kentucky, supra, 559 U.S. 366–67.
This court similarly observed in Phillips v. Warden, 220
Conn. 112, 134, 595 A.2d 1356 (1991), that ‘‘[p]revailing
norms of practice as reflected in American Bar Associa-
tion standards and the like . . . are guides to determin-
ing what is reasonable, but they are only guides.’’
(Citation omitted; internal quotation marks omitted.)
This is very likely because of the difficulty of determin-
ing when a certain practice becomes a prevailing profes-
sional norm. Furthermore, even if professional norms in
Connecticut suggested in 2007 that trial counsel should
inform noncitizen criminal defendants that mandatory
deportation may be a collateral consequence of a guilty
plea, this court had stated several years before the peti-
tioner entered his plea that such advice was not consti-
tutionally required under the relevant governing
statutes.
In State v. Malcolm, 257 Conn. 653, 662–63, 778 A.2d
134 (2001), in which this court considered whether
strict compliance with § 54-1j was necessary to validate
the defendant’s guilty plea, the court stated that,
because ‘‘only substantial compliance is required when
warning the defendant of the direct consequences of a
guilty plea pursuant to Practice Book § 39-1915 in order
to ensure that the plea is voluntary . . . [w]e will not
require stricter compliance with regard to the collateral
consequences of a guilty plea.’’ (Citations omitted; foot-
notes altered; internal quotation marks omitted.) The
court then added in a footnote: ‘‘Although we do not
mean to minimize the potential impact of the immi-
gration and naturalization consequences of a plea,
they are not of constitutional magnitude: ‘The statu-
tory mandate . . . cannot transform this collateral
consequence into a direct consequence of the plea. It
can only recognize that this collateral consequence is
of such importance that the defendant should be
informed of its possibility.’ State v. Baeza, 174 Wis. 2d
118, 125, 496 N.W.2d 233 (App. 1993); United States v.
Santelises, 476 F.2d 787, 790 (2d Cir. 1973) (‘[d]eporta-
tion . . . serious sanction though it may be, is not such
an absolute consequence of conviction that we are man-
dated to read into traditional notions of due process a
requirement that a district judge must warn each defen-
dant of the possibility of deportation before accepting
his plea’); see also State v. Andrews, 253 Conn. 497,
504, 507–508 n.8, 752 A.2d 49 (2000).’’ (Emphasis
added.) State v. Malcolm, supra, 663 n.12. In Andrews,
which preceded Malcolm, this court also emphasized
that trial counsel is constitutionally required to inform
a defendant only of the direct consequences of a guilty
plea, and that Connecticut courts had not ‘‘expand[ed]
the universe of direct consequences of a guilty plea
beyond those enumerated in Practice Book § 39-19.’’
State v. Andrews, supra, 507; see footnote 13 of this
opinion. Prior to the petitioner’s plea, the Appellate
Court likewise concluded that collateral consequences
such as deportation do not trigger constitutional protec-
tions. See State v. Irala, 68 Conn. App. 499, 520, 792
A.2d 109 (concluding that ‘‘[t]he impact of a plea’s immi-
gration consequences on a defendant, while potentially
great, is not of constitutional magnitude and ‘cannot
transform this collateral consequence into a direct con-
sequence of the plea,’ ’’ quoting State v. Malcolm, supra,
663 n.12), cert. denied, 260 Conn. 923, 797 A.2d 519,
cert. denied, 537 U.S. 887, 123 S. Ct. 132, 154 L. Ed. 2d
148 (2002). More recently, the court in Chaidez included
Connecticut in a list of approximately thirty jurisdic-
tions that have determined that advice concerning
deportation does not fall within the scope of the sixth
amendment’s right to effective assistance of counsel;
Chaidez v. United States, supra, 133 S. Ct. 1109 n.8;
and observed that the decision in Padilla had ‘‘altered
the law of most jurisdictions . . . .’’ Id., 1110. Accord-
ingly, even if professional norms at the time the peti-
tioner entered his guilty plea required that trial counsel
inform a noncitizen criminal defendant of a plea’s virtu-
ally mandatory deportation consequences, the rule
announced in Padilla was a new rule under Connecticut
law because more than one Connecticut court had
noted several years before the petitioner’s plea that
such advice was not constitutionally required.16 We are
therefore compelled to conclude that the petitioner’s
ineffective assistance of counsel claim does not allege
a constitutional violation.17
The petitioner counters that, under Padilla and
Chaidez, the sixth amendment right to counsel makes
no categorical distinction between collateral and direct
consequences. He also contends that this court should
adopt a narrower definition of what constitutes a new
rule than that allowed under the federal standard, as
the Massachusetts Supreme Judicial Court did in Com-
monwealth v. Sylvain, 466 Mass. 422, 435, 995 N.E.2d
760 (2013). We are not persuaded.
With respect to the distinction between collateral and
direct consequences, we agree with the petitioner that
Padilla rejected that distinction, but the petitioner over-
looks the fact that the court’s decision in Padilla to
reject the distinction was the reason why the court in
Chaidez concluded that the rule announced in Padilla
was new. Chaidez v. United States, supra, 133 S. Ct.
1110–11. Indeed, the court in Chaidez stressed this
point when it stated: ‘‘If [breaching the chink-free wall
between direct and collateral consequences] does not
count as ‘break[ing] new ground’ or ‘impos[ing] a new
obligation,’ we are hard pressed to know what would.’’
Id. Thus, Chaidez affirms that courts in the majority of
jurisdictions that have considered the sixth amendment
right to counsel have traditionally distinguished
between collateral and direct consequences and, as we
have previously noted, continue to do so today.
We also reject the petitioner’s suggestion that this
court should follow the reasoning of the Massachusetts
Supreme Judicial Court in Sylvain. In that case, the
court affirmed the continuing applicability of Common-
wealth v. Clarke, 460 Mass. 30, 949 N.E.2d 892 (2011),
in which the court had determined two years before
the Supreme Court’s decision in Chaidez that the rule
announced in Padilla applied retroactively under the
framework established in Teague because the rule was
not new in Massachusetts. Commonwealth v. Sylvain,
supra, 466 Mass. 423–24. The court explained as follows:
‘‘In Clarke, we concluded that ‘[t]here is no question
that the holding in Padilla is an extension of the rule
in Strickland,’ [Commonwealth v. Clarke, supra, 37],
and that Padilla is the ‘definitive application of an estab-
lished constitutional standard on a case-by-case basis,
incorporating evolving professional norms (on which
the standard relies) to new facts.’ [Id.] 43. This determi-
nation reflected our recognition that the standard for
measuring ineffective assistance of counsel under
Strickland is one of general applicability, designed to
evaluate the reasonableness of an attorney’s acts or
omissions in a multitude of factual contexts. [Id.] 36,
38–39, 43. . . . Because application of such a general
standard to a particular factual scenario rarely produces
a new rule, [id.] 36 . . . we concluded that Padilla did
not announce a new rule and, thus, that the [s]ixth
[a]mendment right enunciated in Padilla applied retro-
actively to cases on collateral review under the Teague
framework. [Id.] 45.’’ (Citations omitted; emphasis omit-
ted; footnotes omitted.) Commonwealth v. Sylvain,
supra, 429.
To resolve the conflicting outcomes in Clarke and
Chaidez, the court in Sylvain distinguished between
what it called the ‘‘original’’ definition of a new rule in
Teague and the ‘‘post-Teague expansion’’ of the defini-
tion by the United States Supreme Court. Id., 433. The
court in Sylvain first noted that, ‘‘according to the origi-
nal formulation discussed in [Teague v. Lane, supra,
489 U.S. 301], ‘a case announce[d] a new rule if the
result was not dictated by precedent’ at the time the
defendant’s conviction became final. In its subsequent
jurisprudence, however, the Supreme Court has greatly
expanded the meaning of what is ‘new’ to include results
not ‘apparent to all reasonable jurists’ at the time. Lam-
brix v. Singletary, 520 U.S. 518, 527–28 [117 S. Ct. 1517,
137 L. Ed. 2d 771] (1997).’’ Commonwealth v. Sylvain,
supra, 466 Mass. 433. The court then determined that,
although it had incorporated the ‘‘original’’ formulation
into the Massachusetts definition of a new rule when
it adopted the Teague framework in Commonwealth v.
Bray, 407 Mass. 296, 300–301, 553 N.E.2d 538 (1990),
it would not incorporate the expanded definition into
Massachusetts law but, rather, would continue to
adhere to the ‘‘original’’ definition that a rule is new
only when the result is not dictated by precedent. Com-
monwealth v. Sylvain, supra, 433–34. Thus, relying on
Clarke and the so-called ‘‘original’’ definition of a new
rule in Teague, the court in Sylvain concluded: ‘‘Padilla
did not announce a ‘new’ rule for the simple reason
that it applied a general standard—designed to change
according to the evolution of existing professional
norms—to a specific factual situation. . . . We also are
not persuaded that Massachusetts precedent at the time
Padilla was decided would have dictated an outcome
contrary to that in Padilla. Indeed, long before Padilla
was decided, it was customary for practitioners in Mas-
sachusetts to warn their clients of the possible deporta-
tion consequences of pleading guilty.’’ (Citations
omitted.) Id., 435.
We disagree with this logic because it conflates the
reasonableness standard applied under the perfor-
mance prong of Strickland with the rule articulated in
Padilla, regardless of whether the ‘‘original’’ or
‘‘expanded’’ definition of a new rule is used. More spe-
cifically, in concluding that the holding in Padilla was
not a new rule but an extension of the reasonableness
prong in Strickland, the court in Sylvain failed to
acknowledge that Padilla addressed a question that
had never been settled. As the court subsequently
explained in Chaidez, ‘‘Padilla did something more
[than consider an attorney’s possible professional
incompetence]. Before deciding if failing to provide
such advice fell below an objective standard of reason-
ableness, Padilla considered a threshold question: Was
advice about deportation categorically removed from
the scope of the [s]ixth [a]mendment right to counsel
because it involved only a collateral consequence of a
conviction, rather than a component of the criminal
sentence? . . . In other words, prior to asking how the
Strickland test applied (Did this attorney act unreason-
ably?), Padilla asked whether the Strickland test
applied (Should we even evaluate if this attorney acted
unreasonably?). And as we will describe, that prelimi-
nary question about Strickland’s ambit came to the
Padilla [c]ourt unsettled—so that the [c]ourt’s answer
(Yes, Strickland governs here) required a new rule.’’
(Citation omitted; emphasis in original; footnote omit-
ted; internal quotation marks omitted.) Chaidez v.
United States, supra, 133 S. Ct. 1108. Thus, by describing
the holding in Padilla as an extension of Strickland,
which was not a new rule, the court in Sylvain ignored
the fact that the question of whether attorneys are con-
stitutionally required to advise noncitizen criminal
defendants of the deportation consequences of a guilty
plea had never been addressed before Padilla. See id.
(court in Hill explicitly left open question of whether
attorney advice regarding collateral consequences must
satisfy sixth amendment requirements). The court in
Sylvain also ignored the fact that the ruling in Padilla
was grounded in a legal analysis of the direct and indi-
rect consequences of a plea, and that the court in Padi-
lla had examined prevailing professional norms under
the performance prong of Strickland only after resolv-
ing the threshold constitutional question of whether the
rule applied in that case. We thus dismiss the reasoning
in Sylvain because it fails to recognize that the rule
announced in Padilla was new,18 and not merely an
extension of the rule articulated in Strickland.19
D
The petitioner further argues that this court should
apply Padilla retroactively because Connecticut habeas
petitions function as de facto direct review for ineffec-
tive assistance of counsel claims, and both old and
new rules are always applicable on direct review. We
disagree that state habeas proceedings provide the first
and only opportunity to adjudicate ineffectiveness
claims on their merits and thus function as direct review
proceedings. As we have previously discussed herein,
the first opportunity to raise an ineffectiveness claim
relating to a guilty plea is in the trial court through a
motion to withdraw the plea. See Practice Book § 39-
27 (4). Furthermore, even if most ineffectiveness claims
are filed in habeas court, concerns regarding the finality
of judgments and the costs imposed on states by the
retroactive application of new rules in habeas proceed-
ings, where there are virtually no time limitations that
restrict a petitioner’s ability to bring a claim, generally
outweigh the benefits. We are therefore not persuaded
by this argument.
E
In the alternative, the petitioner argues that, even if
this court determines that Padilla cannot be applied
retroactively under federal or state law, his counsel
grossly misadvised him, thus rendering his plea unintel-
ligent, involuntary, and invalid. We decline to review
this due process claim20 because it was not raised in
the petitioner’s habeas petition, pretrial memorandum,
posttrial brief, or preliminary counterstatement of
issues.
The applicable legal principles are well established.
‘‘In a writ of habeas corpus alleging illegal confinement
the application must set forth specific grounds for the
issuance of the writ including the basis for the claim
of illegal confinement. . . . [T]he petition for a writ of
habeas corpus is essentially a pleading and, as such, it
should conform generally to a complaint in a civil
action. . . . It is fundamental in our law that the right
of a plaintiff to recover is limited to the allegations
of his complaint.’’ (Citation omitted; internal quotation
marks omitted.) Kaddah v. Commissioner of Correc-
tion, 299 Conn. 129, 137, 7 A.3d 911 (2010); see also
Practice Book § 23-22 (1) (‘‘[a] petition for a writ of
habeas corpus . . . shall state . . . the specific facts
upon which each specific claim of illegal confinement
is based and the relief requested’’). A reviewing court
is ‘‘not compelled to consider issues neither alleged
in the habeas petition nor considered at the habeas
proceeding . . . .’’ (Internal quotation marks omitted.)
Gaines v. Commissioner of Correction, 306 Conn. 664,
672 n.8, 51 A.3d 948 (2012). Appellate review of newly
articulated claims not raised before the habeas court
would amount to ‘‘an ambuscade of the [habeas] judge
. . . .’’ (Citation omitted; internal quotation marks
omitted.) Johnson v. Commissioner of Correction,
supra, 285 Conn. 580.
In the present case, the petitioner claimed in his peti-
tion and throughout the habeas proceeding that he was
deprived of his sixth amendment right to effective assis-
tance of counsel because of his counsel’s failure to
advise him of the virtually automatic deportation conse-
quences of his plea, not because of a violation of his fifth
amendment due process rights. In fact, the petitioner
distinguished his sixth amendment claim of ineffective
assistance of counsel from a fifth amendment ‘‘ ‘know-
ing and voluntary’ ’’ claim raising due process concerns
in his pretrial memorandum and posttrial brief. Relying
on State v. Irala, supra, 68 Conn. App. 520, the petitioner
observed in a footnote to his posttrial brief that, ‘‘[i]n
the [f]ifth [a]mendment context, courts have not
required that a trial court advise a defendant as to the
precise immigration consequences of a plea in order to
find that the plea is ‘knowing and voluntary’ because
they have viewed immigration consequences as ‘collat-
eral’ to the proceedings and the [f]ifth [a]mendment
requires only that a defendant be aware of all the direct
consequences of a plea.’’ (Emphasis omitted.) Conse-
quently, the habeas court did not consider or decide
whether the petitioner’s plea was unintelligent, involun-
tary, and invalid. To the extent the habeas court dis-
cussed in its memorandum of decision whether counsel
provided the petitioner with ‘‘ ‘correct’ ’’ advice, it did
so in the context of the performance prong of Strick-
land and did not consider whether counsel gave the
petitioner gross misadvice that would have rendered
his plea unintelligent, involuntary, and invalid.
This court previously has stated that, ‘‘[o]nly in [the]
most exceptional circumstances can and will this court
consider a claim, constitutional or otherwise, that has
not been raised and decided in the trial court. . . . This
rule applies equally to alternate grounds for affirmance.
. . . New Haven v. Bonner, 272 Conn. 489, 498, 863
A.2d 680 (2005); see also Thomas v. West Haven, 249
Conn. 385, 390 n.11, 734 A.2d 535 (1999) ([t]he appellee’s
right to file a [Practice Book] § 63-4 [a] [1] statement
has not eliminated the duty to have raised the issue in
the trial court . . .), cert. denied, 528 U.S. 1187, 120 S.
Ct. 1239, 146 L. Ed. 2d 99 (2000); Peck v. Jacquemin,
196 Conn. 53, 62 n.13, 491 A.2d 1043 (1985) (compliance
with [Practice Book § 63-4 (a) (1)] is not to be consid-
ered in a vacuum; particularly to be considered is its
linkage with [Practice Book § 60-5] which provides in
part that this court shall not be bound to consider a
claim unless it was distinctly raised at the trial or arose
subsequent to the trial). Such exceptional circum-
stances may occur where a new and unforeseen consti-
tutional right has arisen between the time of trial and
appeal or where the record supports a claim that a
litigant has been deprived of a fundamental constitu-
tional right and a fair trial. . . . An exception may also
be made where consideration of the question is in the
interest of public welfare or of justice between the
parties. . . . Lopiano v. Lopiano, 247 Conn. 356, 373,
752 A.2d 1000 (1998).’’ (Footnotes omitted; internal quo-
tation marks omitted.) Perez-Dickson v. Bridgeport,
304 Conn. 483, 498–500, 43 A.3d 69 (2012).
We conclude, as we did in Perez-Dickson; id., 501;
that there are no such exceptional circumstances in the
present case. First, no new and unforeseen right arose
under the federal constitution between the time of the
petitioner’s habeas trial and his appeal to this court
because the habeas trial was conducted in the spring
of 2012, two years after the ruling in Padilla was
announced. In addition, no new state constitutional
right arose during that period. Furthermore, consider-
ation of the petitioner’s state law claim does not appear
to be in the interest of the public welfare or justice
between the parties because it pertains primarily to the
limited number of noncitizen criminal defendants who
filed habeas petitions between the years 2010 and 2013,
when Padilla and Chaidez, respectively, were decided.
Finally, the petitioner has failed to seek appellate
review of this issue pursuant to State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989). We therefore
decline to review this claim.
F
We similarly decline to review the petitioner’s claim
that his counsel’s performance was deficient because
he failed to pursue a substance abuse defense during
plea negotiations. Any such potential claim was waived
in the habeas court when the petitioner’s attorney stated
that the petitioner was not pursuing the drug depen-
dency issue as an independent claim regarding his trial
counsel’s deficient performance and noted that it was
‘‘not an allegation in the petition.’’
The judgment is reversed and the case is remanded
to the habeas court with direction to render judgment
denying the amended petition for a writ of habeas
corpus.
In this opinion ROGERS, C. J., and ESPINOSA and
ROBINSON, Js., concurred.
1
In Padilla v. Kentucky, supra, 559 U.S. 360, the United States Supreme
Court concluded that defense counsel is constitutionally required to advise
a client who is not a United States citizen and who is charged with an
aggravated felony under federal law that deportation is virtually automatic.
The governing federal law on deportation is set forth in 8 U.S.C. § 1227
(a), which provides in relevant part: ‘‘Any alien . . . in and admitted to the
United States shall, upon the order of the Attorney General, be removed
if the alien is within one or more of the following classes of deportable
aliens . . .
‘‘(2) . . . (A) . . . (iii) Any alien who is convicted of an aggravated felony
at any time after admission . . . .’’
2
Although the petitioner did not present this argument as an alternative
ground for affirmance, we treat it as an alternative ground because resolution
of the issue does not require application of the rule in Padilla but, rather,
the rule in Strickland.
3
The petition stated that the petitioner sought relief under the ‘‘sixth and
fourteenth amendments to the United States constitution; article [first], [§§]
8 and 10, of the Connecticut constitution, [General Statutes §] 52-466 et seq.
and [Practice Book §] 23-21 et seq.’’
4
The respondent appealed from the judgment of the habeas court to the
Appellate Court, and we transferred the appeal to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-1.
5
The court in Padilla did not consider whether the defendant was preju-
diced as a result of his counsel’s conduct under the second prong of Strick-
land, but, rather, left that matter for the Kentucky courts to decide. Padilla
v. Kentucky, supra, 559 U.S. 369.
6
The court noted that all ten federal appellate courts and the appellate
courts in almost thirty states had reached this conclusion. Chaidez v. United
States, supra, 133 S. Ct. 1108.
7
The respondent argues that the petitioner claimed in the habeas court
that Padilla satisfies the Teague test for retroactivity, and, therefore, this
court should not review his claim that it is not bound by Teague. The issue
of whether a Teague analysis is appropriate, however, was fully addressed
by the parties in their briefs to this court. The petitioner also relied on the
Teague test in his arguments before the habeas court, and the habeas court
applied Teague in its discussion of the retroactivity issue. Accordingly, the
applicability of Teague was an integral part of the habeas proceedings, and
the fact that the petitioner now takes a different position as to how Teague
applies does not negate our ability to review his claim. Cf. Crawford v.
Commissioner of Correction, 294 Conn. 165, 204, 982 A.2d 620 (2009) (to
entertain claim not raised in trial court would amount to trial by ambuscade,
practice in which this court will not engage).
8
The court in Teague identified ‘‘two exceptions to [this] general rule of
nonretroactivity for cases on collateral review. First, a new rule should be
applied retroactively if it places certain kinds of primary, private individual
conduct beyond the power of the criminal law-making authority to proscribe.
. . . Second, a new rule should be applied retroactively if it requires the
observance of ’those procedures that . . . are implicit in the concept of
ordered liberty.’’ (Citation omitted; internal quotation marks omitted.)
Teague v. Lane, supra, 489 U.S. 307. The court further explained that the
second exception should be reserved for ‘‘watershed rules of criminal proce-
dure’’ that ‘‘implicate the fundamental fairness of the trial’’ and ‘‘without
which the likelihood of an accurate conviction is seriously diminished.’’ Id.,
311–13. Neither party claims that either exception applies in the present case.
9
Thus, contrary to Justice Eveleigh’s view, we ‘‘fully recognize’’ the holding
in Danforth that states are not bound by Teague and that this court in
Luurtsema acknowledged that holding.
10
The fact that this court applied Teague in Duperry and Johnson long
before the release of Danforth does not mean that it was compelled to do
so, thus diminishing the precedential value or relevance of those cases, as
Justice Eveleigh claims in his dissent. There is absolutely no evidence that
this or any other state court assumed prior to Danforth that it was required
to apply Teague when considering the retroactive application of Padilla or
any other new constitutional rule of criminal procedure. Rather, state courts
have always exercised their independent judgments regarding the applica-
tion of Teague in a nonfederal context. Some jurisdictions rejected Teague
many years before the release of Danforth; see, e.g., State v. Towery, 204
Ariz. 386, 393, 64 P.3d 828 (2003); Cowell v. Leapley, 458 N.W.2d 514, 518
(S.D. 1990); Labrum v. State Board of Pardons, 870 P.2d 902, 912–13 (Utah
1993); Farbotnik v. State, 850 P.2d 594, 601–602 (Wyo. 1993); one jurisdiction
adopted a modified version of Teague before the publication of Danforth;
see Colwell v. State, 118 Nev. 807, 819, 59 P.3d 463 (2002); and still other
jurisdictions adopted Teague following the publication of Danforth, despite
the reference in Danforth to the fact that state courts need not be bound
by Teague. See, e.g., In re Gomez, 45 Cal. 4th 650, 656, 199 P.3d 574, 88 Cal.
Rptr. 3d 177 (2009); Gathers v. United States, 977 A.2d 969, 972 (D.C. 2009);
Alford v. State, 287 Ga. 105, 107, 695 S.E.2d 1 (2010); Perez v. State, 816
N.W.2d 354, 358 (Iowa 2012); State v. Tate, 130 So. 3d 829, 834–35 (La. 2013);
Kersey v. Hatch, 148 N.M. 381, 386, 237 P.3d 683 (2010); State v. Bishop,
Ohio St. 3d , 7 N.E.3d 605, 610 (2014); Bush v. State, 428 S.W.3d 1,
20 (Tenn. 2014); Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex. Crim.
App. 2013); In re Gentry, 179 Wash. 2d 614, 627–28, 316 P.3d 1020 (2014).
Accordingly, it is incorrect to suggest that before the release of Danforth
state courts believed that they were compelled to apply Teague and that
they rushed to reject Teague following the release of Danforth. The more
accurate conclusion is that state courts that applied Teague before Danforth
did so because Teague provided them with valuable guidance that produced
consistent results. Duperry and Johnson thus remain good precedent in
this state that we may consider when determining whether Teague should
be abandoned as a rule of general applicability.
11
See In re Gomez, 45 Cal. 4th 650, 654–55, 199 P.3d 574, 88 Cal. Rptr.
3d 177 (2009); Edwards v. People, 129 P.3d 977, 983 (Colo. 2006); Flamer
v. State, 585 A.2d 736, 749 (Del. 1990); Gathers v. United States, 977 A.2d
969, 972 (D.C. 2009); Alford v. State, 287 Ga. 105, 106–107, 695 S.E.2d 1
(2010); State v. Jess, 117 Haw. 381, 424, 184 P.3d 133 (2008); People v.
Flowers, 138 Ill. 2d 218, 239–40, 561 N.E.2d 674 (1990); Daniels v. State, 561
N.E.2d 487, 489 (Ind. 1990); Perez v. State, 816 N.W.2d 354, 358 (Iowa
2012); State v. Neer, 247 Kan. 137, 142–43, 795 P.2d 362 (1990); Bowling v.
Commonwealth, 163 S.W.3d 361, 370 (Ky. 2005); State v. Tate, 130 So. 3d
829, 834 (La. 2013); Carmichael v. State, 927 A.2d 1172, 1176–81 (Me. 2007);
State v. Houston, 702 N.W.2d 268, 270 (Minn. 2005); Manning v. State, 929
So. 2d 885, 897 (Miss. 2006); State v. Egelhoff, 272 Mont. 114, 125–26, 900
P.2d 260 (1995); State v. Reeves, 234 Neb. 711, 750, 453 N.W.2d 359 (1990);
State v. Tallard, 149 N.H. 183, 186–87, 816 A.2d 977 (2003); State v. Purnell,
161 N.J. 44, 64, 735 A.2d 513 (1999); Kersey v. Hatch, 148 N.M. 381, 383,
237 P.3d 683 (2010); People v. Baret, Court of Appeals, Docket No. 105, 2014
N.Y. Slip Op. 04872, 2014 WL 2921420, *12 (N.Y. June 30, 2014); State v.
Zuniga, 336 N.C. 508, 513, 444 S.E.2d 443 (1994); State v. Bishop, Ohio
St. 3d , 7 N.E.3d 605, 610 (Ohio 2014); Burleson v. Saffle, 46 P.3d 150,
151 (Okla. Crim. App. 2002); Page v. Palmateer, 336 Or. 379, 387–88, 84 P.3d
133 (2004); Commonwealth v. Hughes, 581 Pa. 274, 306–307, 865 A.2d 761
(2004); Pierce v. Wall, 941 A.2d 189, 195 (R.I. 2008); Talley v. State, 371 S.C.
535, 541, 640 S.E.2d 878 (2007); Bush v. State, 428 S.W.3d 1, 20 (Tenn. 2014);
Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex. Crim. App. 2013); State
v. White, 182 Vt. 510, 517–18, 944 A.2d 203 (2007); Mueller v. Murray, 252
Va. 356, 361–66, 478 S.E.2d 542 (1996); In re Gentry, 179 Wash. 2d 614, 627–28,
316 P.3d 1020 (2014); State v. Lo, 264 Wis. 2d 1, 33–34, 665 N.W.2d 756 (2003).
12
To the extent that Justice Eveleigh in his dissent dismisses these cases
because of perceived deficiencies in their substantive analysis, he misses
the point that they are cited only to show that, contrary to the petitioner’s
assertion, the retroactive application of Padilla could result in the filing of
a large number of claims because the pool of potential applicants is not
necessarily extremely limited. We also disagree with Justice Eveleigh’s
assumption in footnote 1 of his dissenting opinion that ‘‘the majority of the
individuals with convictions similar to the petitioner’s would likely already
have been deported . . . .’’ There is no evidence in the record as to how
many convicted offenders who are now serving prison sentences in Connecti-
cut will be subject to deportation upon their release. Accordingly, there is
no support for Justice Eveleigh’s assumption.
13
Contrary to the respondent’s suggestion, this claim was raised suffi-
ciently in the amended petition for a writ of habeas corpus when the peti-
tioner alleged that his trial counsel’s representation ‘‘fell below the standard
of reasonably competent counsel in the practice of criminal law in the state
of Connecticut at the time of [the] petitioner’s plea and conviction.’’
14
General Statutes § 54-1j (a) provides: ‘‘The court shall not accept a plea
of guilty or nolo contendere from any defendant in any criminal proceeding
unless the court first addresses the defendant personally and determines
that the defendant fully understands that if the defendant is not a citizen
of the United States, conviction of the offense for which the defendant has
been charged may have the consequences of deportation or removal from
the United States, exclusion from readmission to the United States or denial
of naturalization, pursuant to the laws of the United States. If the defendant
has not discussed these possible consequences with the defendant’s attor-
ney, the court shall permit the defendant to do so prior to accepting the
defendant’s plea.’’
15
Practice Book § 39-19 provides: ‘‘The judicial authority shall not accept
the plea without first addressing the defendant personally and determining
that he or she fully understands:
‘‘(1) The nature of the charge to which the plea is offered;
‘‘(2) The mandatory minimum sentence, if any;
‘‘(3) The fact that the statute for the particular offense does not permit
the sentence to be suspended;
‘‘(4) The maximum possible sentence on the charge, including, if there
are several charges, the maximum sentence possible from consecutive sen-
tences and including, when applicable, the fact that a different or additional
punishment may be authorized by reason of a previous conviction; and
‘‘(5) The fact that he or she has the right to plead not guilty or to persist
in that plea if it has already been made, and the fact that he or she has the
right to be tried by a jury or a judge and that at that trial the defendant has
the right to the assistance of counsel, the right to confront and cross-examine
witnesses against him or her, and the right not to be compelled to incriminate
himself or herself.’’
16
Justice Palmer contends in his dissent that the Connecticut case law
on which we rely was not binding precedent at the time of the petitioner’s
plea because it did not address what is constitutionally required of trial
counsel under the sixth amendment, but, rather, addressed only ‘‘what is
required of the trial court when canvassing a defendant to ensure that a
plea is voluntary under the fifth amendment.’’ (Emphasis in original.) We
disagree. In each of the cited cases, the reviewing court determined that trial
courts are not constitutionally required under § 54-1j to advise defendants of
the deportation consequences of a guilty plea because deportation is not a
direct consequence of a plea under Practice Book § 39-19. See State v.
Malcolm, supra, 257 Conn. 663 n.12 (immigration and naturalization conse-
quences of guilty plea not of constitutional magnitude because statutory
mandate of § 54-1j cannot transform collateral consequences of deportation
into direct consequences of plea under Practice Book § 39-19); State v.
Andrews, supra, 253 Conn. 507 and n.8 (trial courts not constitutionally
required to advise defendants of immigration consequences of guilty plea
under § 54-1j because they are not direct consequences of plea under Practice
Book § 39-19); State v. Irala, supra, 68 Conn. App. 520 (same). This is
significant because the petitioner specifically argues, citing State v. Hall,
303 Conn. 527, 35 A.3d 237 (2012), that Padilla was not a new rule in
Connecticut because the existence and application of § 54-1j provided evi-
dence that the established professional norm in this state at the time he
entered his plea was for counsel to give defendants accurate advice regarding
the deportation consequences of a plea. The court in Hall explained, how-
ever, that when § 54-1j was amended in 2003 to require counsel to discuss
with defendants the immigration consequences of a plea, ‘‘the legislature
was primarily concerned with ensuring that defendants engage in a conversa-
tion with their counsel, not the court, regarding the immigration conse-
quences of guilty pleas.’’ (Emphasis omitted.) Id., 536. Thus, as the court
in Hall observed, the purpose of the statute of warning defendants about
the possible immigration consequences of a guilty plea remained the same;
id., 535; and the fact that the 2003 amendment required counsel, instead of
the court, to advise defendants of these consequences did not change the
underlying and more general conclusion in Malcolm, Andrews and Irala
that advising defendants of the immigration and deportation consequences
of a plea was not constitutionally required under § 54-1j.
17
This conclusion also disposes of the petitioner’s argument that this
court should apply Padilla retroactively because Connecticut historically
has given special solicitude to the right to counsel and should continue to
uphold that tradition in the present case.
18
Although the court in Teague did not find it necessary to define the
meaning of a rule, it is clear that the court was referring to a constitutional
rule of criminal procedure issued by a court that would be used as a guiding
principle in future cases. Thus, the court repeatedly referred to the fact that
new rules are ‘‘announced’ or ‘‘promulgated’’ only in specific cases; Teague
v. Lane, supra, 489 U.S. 300–304; and that a case does not announce a new
rule if the result is dictated by ‘‘precedent’’; id., 301; or by the application
of a principle that governed a past decision. Id., 307; see also Chaidez v.
United States, supra, 133 S. Ct. 1107.
19
We also disagree with Justice Eveleigh’s determination in his dissenting
opinion that Connecticut should adopt a ‘‘modified’’ version of the Teague
test similar to the tests adopted in Nevada and Idaho. In Colwell v. State,
118 Nev. 807, 819, 59 P.3d 463 (2002), the Nevada Supreme Court adopted
the general framework of Teague but reserved its prerogative ‘‘to define
and determine within this framework whether a rule is new and whether
it falls within the two exceptions to nonretroactivity . . . .’’ The court
defined the criteria for determining whether a rule is new as whether the
rule ‘‘[1] overrules precedent, or [2] disapprove[s] a practice [the] [c]ourt
had arguably sanctioned in prior cases, or [3] overturns a longstanding
practice that lower courts had uniformly approved.’’ (Footnote omitted;
internal quotation marks omitted.) Id., 819–20. It then adopted a broadened
version of the two exceptions in Teague to the general requirement that
new rules are not retroactive, stating that a new rule may be applied retroac-
tively: ‘‘(1) if the rule establishes that it is unconstitutional to proscribe
certain conduct as criminal or to impose a type of punishment on certain
defendants because of their status or offense; or (2) if it establishes a
procedure without which the likelihood of an accurate conviction is seriously
diminished.’’ Id., 820. The court noted that, unlike in Teague, it did ‘‘not
limit the first exception to ‘primary, private individual’ conduct, allowing
the possibility that other conduct may be constitutionally protected from
criminalization and warrant retroactive relief. And with the second excep-
tion, [it did] not distinguish a separate requirement of ‘bedrock’ or ‘water-
shed’ significance: if accuracy is seriously diminished without the rule, the
rule is significant enough to warrant retroactive application.’’ Id. The Idaho
Supreme Court also adopted a modified version of the Teague framework,
concluding that, ‘‘in the future, the decisions of the courts of this state
whether to give retroactive effect to a rule of law should reflect independent
judgment, based upon the concerns of this [c]ourt and the ‘uniqueness of
our state, our [c]onstitution, and our long-standing jurisprudence.’ ’’ Rhoades
v. State, 149 Idaho 130, 139, 233 P.3d 61 (2010), cert. denied, U.S. ,
131 S. Ct. 1571, 179 L. Ed. 2d 477 (2011). The Idaho Supreme Court, however,
specifically rejected the Nevada Supreme Court’s broadening of the two
exceptions to the nonretroactivity of a new rule under Teague. Id., 139 n.2.
 Justice Eveleigh is persuaded by this reasoning and suggests that Connecti-
cut also should adopt a modified version of the Teague test and, in deciding
whether to give retroactive effect to a new constitutional rule, ‘‘should
exercise independent judgment on the basis of the unique requirements of
our state constitution, judicial precedents and statutory framework.’’ He
further suggests that, ‘‘if the [accuracy and] fundamental fairness of a trial
or plea is seriously diminished without the rule, the rule is significant enough
to warrant retroactive application.’’ We disagree.
We first note that Justice Eveleigh’s proposed ‘‘modification’’ of Teague
does not appear to involve any change in the rule itself, but, rather, would
allow a more liberal application of its second exception, which is reserved
under Teague v. Lane, supra, 489 U.S. 288, for ‘‘watershed rules of criminal
procedure’’; id., 311; that ‘‘implicate the fundamental fairness of the trial’’;
id., 312; and ‘‘without which the likelihood of an accurate conviction is
seriously diminished.’’ Id., 313; see footnote 8 of this opinion. In other words,
instead of disavowing Teague, Justice Eveleigh states that this court should
adopt the principles of Teague but ‘‘exercise independent judgment on the
basis of the unique requirements of our state constitution, judicial precedents
and statutory framework’’ in implementing the fundamental fairness and
accuracy elements of the second exception of Teague. Regardless of how
Justice Eveleigh’s approach is characterized, it virtually swallows the excep-
tion because it allows the court to decide whether a constitutional rule is new
on the basis of whatever the court finds persuasive, including Connecticut’s
statutory framework and whether the trial or plea is deemed to be ‘‘fair’’
without application of the rule. In the present case, this results in elevating
§ 54-1j, which provides that the court must ask whether a defendant fully
understands the deportation consequences of a proposed guilty plea and
whether he has discussed these possible consequences with his attorney;
see footnote 14 of this opinion; to the status of a constitutional requirement,
even though this court had concluded before Padilla that advising a defen-
dant of the deportation consequences of a guilty plea was not constitutionally
required. See our previous discussion herein. It also opens the door to
claims that the directives of other statutes are constitutional requirements
in contexts other than the conduct of attorneys.
Justice Eveleigh’s approach resembles the more liberal approach pre-
viously followed by federal courts but abandoned in Teague for lack of
consistent results. The United States Supreme Court’s modern retroactivity
jurisprudence began with a pair of cases in the 1960s that gave birth to the
Linkletter-Stovall test. See Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18
L. Ed. 2d 1199 (1967); Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14
L. Ed. 2d 601 (1965). Under that test, federal courts determined whether to
apply a new constitutional rule of criminal procedure retroactively on a
case-by-case basis by considering three factors: (1) the purpose of the new
rule; (2) the extent to which law enforcement authorities relied on the old
rule; and (3) the effect that applying the new rule retroactively would have
on the administration of justice. Stovall v. Denno, supra, 297. While the
Linkletter-Stovall test allowed courts flexibility in determining a new rule’s
retroactive effect, the test ultimately led to inconsistent and unpredictable
results. See Desist v. United States, 394 U.S. 244, 257–58, 89 S. Ct. 1030, 22
L. Ed. 2d 248 (1969) (Harlan, J., dissenting); State v. Zuniga, 336 N.C. 508,
511–12, 444 S.E.2d 443 (1994). The approach proposed by Justice Eveleigh,
although not identical to the Linkletter-Stovall test, is subject to a similar
weakness because it permits an overly broad interpretation of ‘‘fundamental
fairness.’’ Just as the great majority of states have largely followed Teague
in their own postconviction proceedings rather than fashioning a different
rule or broadening the two exceptions, we also conclude that the Teague
test, and its exceptions, as articulated in that case, represent an appropriate
and workable solution to the problem of when to apply a new constitutional
rule of criminal procedure retroactively.
Finally, insofar as Justice Eveleigh determines that this court should give
retroactive effect to the rule in Padilla under the second Teague exception,
we note that neither party made such a claim on appeal to this court. The
respondent claimed that the judgment should be reversed because Padilla
announced a new rule that applied prospectively in Connecticut. In reply,
the petitioner argued in part that the rule in Padilla should be applied
retroactively because it was not a new rule in Connecticut. Neither party
argued that the rule was new but applied retroactively under the second
Teague exception, nor did the trial court decide the issue on that ground.
The trial court determined that the rule in Padilla applied retroactively
because it was not a new rule under federal or state law. Accordingly, this
court is not empowered to address the retroactive application of the rule
in Padilla under the second Teague exception.
20
Although the petitioner does not characterize this as a due process
claim, the cases he cites in arguing that ‘‘Connecticut courts have made
clear that to be valid, a guilty plea must be intelligent, voluntary and know-
ing,’’ refer to an unknowing, unintelligent, and involuntary plea as a due
process violation. See State v. Gilnite, 202 Conn. 369, 381–82, 521 A.2d 547
(1987) (‘‘A plea of guilty . . . involves the waiver of several fundamental
constitutional rights and therefore must be knowingly and voluntarily
entered so as not to violate due process. . . . Thus, for a plea to be valid,
the record must affirmatively disclose that the defendant understands the
nature of the charge upon which the plea is entered . . . .’’ [Citations omit-
ted; footnotes omitted.]); Sherbo v. Manson, 21 Conn. App. 172, 178–79, 572
A.2d 378 (‘‘A guilty plea, which is itself tantamount to conviction, may be
accepted by the court only when it is made knowingly, intelligently, and
voluntarily. . . . A guilty plea otherwise obtained is in violation of due
process and voidable.’’ [Citation omitted.]), cert. denied, 215 Conn. 808, 809,
576 A.2d 539, 540 (1990).