Heywood v. Commissioner of Correction ( 2022 )

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TAJAY HEYWOOD v. COMMISSIONER
OF CORRECTION
(AC 44198)
Cradle, Clark and Norcott, Js.
Syllabus
The petitioner, a citizen of Jamaica, sought a writ of habeas corpus, claiming
that his trial counsel, R, had provided ineffective assistance by failing
to unequivocally advise him that a guilty plea to the charge of risk of
injury to a child would subject him to mandatory deportation. The
petitioner initially was charged with offenses that exposed him to 160
years of incarceration before he pleaded guilty and received a lesser
sentence, with the potential of no jail time, under a plea agreement
offered by the state. The habeas court rendered judgment denying the
habeas petition, concluding that, although R had rendered deficient
performance by failing to clearly and unambiguously convey to the
petitioner the certainty of his deportation, the petitioner had failed to
demonstrate that he was prejudiced by that performance. Following the
granting of the petition for certification to appeal, the petitioner appealed
to this court. Held that the petitioner could not prevail on his claim that
the habeas court improperly concluded that he had failed to satisfy the
prejudice prong of Strickland v. Washington (466 U.S. 668); the court’s
conclusion that the petitioner had not satisfied the prejudice prong was
supported by evidence in the record that the court found to be credible,
namely, R’s testimony that the petitioner was concerned with both the
risk of deportation and the risk of incarceration, the state’s case against
the petitioner was strong, and it was likely that, if the petitioner had
gone to trial and been convicted, the petitioner would have received a
sentence of thirty years of incarceration; moreover, the court, having
assessed the petitioner’s testimony and having considered whether the
petitioner rationally would have rejected the plea offer had he known
that accepting it would result in mandatory deportation, did not find
the petitioner’s testimony to be credible.
Argued December 1, 2021—officially released March 8, 2022
Procedural History
Amended petition for a writ of habeas corpus, brought
to the Superior Court in the judicial district of Tolland
and tried to the court, Chaplin, J.; judgment denying
the petition, from which the petitioner, on the granting
of certification, appealed to this court. Affirmed.
Mary Boehlert, assigned counsel, for the appellant
(petitioner).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Joseph T. Corradino, state’s
attorney, and Susan M. Campbell, assistant state’s attor-
ney, for the appellee (respondent).
Opinion
NORCOTT, J. The petitioner, Tajay Heywood, appeals,
following the granting of his petition for certification
to appeal, from the judgment of the habeas court deny-
ing his amended petition for a writ of habeas corpus.
The petitioner claims that the habeas court improperly
concluded that he failed to establish that he was preju-
diced as a result of his trial counsel’s deficient perfor-
mance. We disagree and, accordingly, affirm the judg-
ment of the court.
The following facts and procedural history are rele-
vant to this appeal. The petitioner was born in Jamaica
and moved to the United States with his family when
he was eight years old. The petitioner was a lawful
permanent resident of the United States and remained
a citizen of Jamaica. On October 6, 2015, the petitioner
was arrested as a result of allegations by a thirteen
year old girl that he had sexually assaulted her on four
occasions.1 The petitioner was charged with four counts
of sexual assault in the second degree in violation of
General Statutes § 53a-71 (a) (1), and four counts of
risk of injury to a child in violation of General Statutes
§ 53-21 (a) (2). Those charges carried with them a poten-
tial maximum term of 160 years of incarceration, includ-
ing a potential three year mandatory minimum period
of incarceration.2
The state offered the petitioner a plea agreement
pursuant to which the petitioner would plead guilty to
one count of sexual assault in the second degree in
exchange for a sentence of ten years of incarceration,
suspended after four years to serve, with a right to
argue down to the nine month mandatory minimum
period of incarceration, followed by ten years of proba-
tion. The petitioner rejected that offer and intended to
proceed to trial. On the day that evidence was set to
begin, and after jury selection was completed, the state
offered the petitioner a plea agreement with more favor-
able terms. Specifically, the petitioner would plead
guilty to one count of risk of injury to a child in exchange
for a sentence of ten years of incarceration, execution
suspended after four years, with a right to argue for
less, followed by ten years of probation. Because the
petitioner had the right to argue for a lesser period of
incarceration, he potentially could have received no jail
time. The petitioner accepted that offer.
On May 31, 2017, the petitioner pleaded guilty to risk
of injury to a child in violation of § 53-21 (a) (2). On
August 11, 2017, the court, Devlin, J., sentenced the
petitioner to a total effective term of ten years of incar-
ceration, execution suspended after nine months to
serve, followed by ten years of probation. Pursuant to
8 U.S.C. §§ 1101 (a) (43) (A) and 1227 (a) (2) (A) (iii),
a conviction under § 53-21 (a) (2) constitutes an aggra-
vated felony for immigration purposes. On completion
of his jail term, but while in the custody of the Depart-
ment of Correction, the petitioner was apprehended by
federal immigration officials and subjected to deporta-
tion proceedings.
On May 23, 2018, the petitioner, as a self-represented
litigant and while in federal immigration detention, filed
the present habeas action. On May 25, 2018, the court
granted the petitioner’s request for the appointment of
counsel. On July 5, 2018, the petitioner, through coun-
sel, filed an amended petition for a writ of habeas cor-
pus. The petitioner alleged that Attorney Frank Riccio
II, who represented him in the criminal proceedings,
provided him with ineffective assistance of counsel. The
petitioner claimed in relevant part that Riccio ‘‘failed
to unequivocally advise [him] . . . that entering a
guilty plea under the terms of the plea agreement would
make [him] subject to mandatory deportation . . . .’’3
The petitioner further alleged that ‘‘[t]here is a reason-
able probability that—but for the petitioner’s counsel’s
deficient performance—the petitioner would not have
entered a guilty plea.’’ At some point after filing his
initial petition, the petitioner was deported to Jamaica
on the ground that he had committed an aggravated
felony related to the sexual abuse of a minor.
On September 30 and October 10, 2019, a trial was
held before the habeas court, Chaplin, J. The petitioner
presented his testimony4 and the testimony of (1) Attor-
ney Justin Conlon, an immigration attorney who served
as an expert for the petitioner,5 (2) Riccio, and (3)
Attorney Tamara Relis, an immigration attorney who
represented the petitioner during his removal proceed-
ings.6 Riccio testified that, based on the evidence to
which he had access prior to jury selection, he believed
the case to be ‘‘sort of a he said, she said to a degree.’’
Riccio testified that the petitioner wanted to go to trial
and challenge the victim’s credibility, rather than plead
guilty, and that the petitioner did not believe the victim
would come to court to testify against him. He testified
that, on the day that evidence was set to begin, however,
the victim and her mother were present at the court-
house. He testified that, on that same day, he was pre-
sented for the first time with a report prepared by the
Department of Children and Families (department),
which contained the petitioner’s admission to a depart-
ment worker that he had sexually assaulted the victim.
Riccio further testified that, prior to obtaining the
report, he did not know that it existed and that the
petitioner had not told him about it. He testified that
the department’s report was ‘‘pretty thorough’’ and that
the petitioner provided the department worker with
details that corroborated the victim’s account of the
assaults. Riccio characterized this report as ‘‘the most
damaging evidence’’ against the petitioner and testified
that ‘‘[there was] no exception to keep [the petitioner’s
admissions in the report] out’’ at trial.
Riccio then testified about the plea offer that the
petitioner ultimately accepted. He testified that, in his
experience representing criminal defendants, once a
case goes on the trial list, the plea agreement offered
by the state ‘‘virtually never gets better, especially if
the evidence in the case improves for the state. Then
the offer that was rejected is never reoffered and largely
. . . never improves when jury selection is about to
begin.’’ Riccio also testified that, in his experience rep-
resenting clients in sexual assault cases, the state had
never offered one of his clients a plea agreement in
which his client would plead guilty to a crime that would
not be considered an aggravated felony. He testified:
‘‘[I]n fact, I don’t think I’ve ever . . . been offered a
nonjail disposition on a case like that. [The petitioner’s
case] was probably the first and only one [in which
there was a] chance of a no jail disposition.’’
Riccio also testified about his communications with
the petitioner regarding the immigration consequences
of being found guilty. Several communications from
Riccio to the petitioner were entered into evidence as
full exhibits at the habeas trial. In a letter dated March
13, 2017, Riccio listed the charges against the petitioner
and the maximum possible penalty, and stated that
‘‘conviction of any of these offenses will likely result
in your deportation.’’ The next day, Riccio sent an e-mail
update with the same language. On May 18, 2017, Riccio
sent another update, which stated: ‘‘The immigration
[consequence] of being convicted of a felony is likely
deportation.’’ On May 24, 2017, Riccio sent an e-mail
with the same language and added: ‘‘The only way to
truly avoid immigration consequences is to win the trial
with eight [not guilty] verdicts.’’ On May 30, 2017, Riccio
sent an e-mail to the petitioner noting that he had spo-
ken to the prosecutor about a potential plea agreement
that would allow the petitioner to plead guilty to risk
of injury to a child and argue for no jail time. Riccio
stated: ‘‘While it is still a felony, there is a good chance
of no jail. I understand that this still creates adverse
immigration consequences, however there is a slightly
lesser risk of deportation since you will not be incarcer-
ated, thereby making it more difficult for [Immigration
and Customs Enforcement (ICE)] to bother you.’’ On
May 31, 2017, after the petitioner accepted the state’s
plea agreement and entered a guilty plea, Riccio sent
an e-mail to the petitioner in which he stated: ‘‘There
will . . . likely [be] immigration consequences due to
the felony charge.’’
Riccio testified that, if the petitioner received a sen-
tence that did not include a period of incarceration, it
would not be as easy for ICE to get custody of the
petitioner to deport him. Riccio stated that he had ‘‘said
to [the petitioner] on a couple of occasions that it’s
easier for immigration to, essentially, take custody of
you and deport you if you’re in custody because they
simply have to put on a hold versus someone who’s
not in custody, immigration can’t put an automatic hold
on a person.’’ Riccio further testified that the petitioner
was ‘‘concerned and worried’’ about both jail and depor-
tation and that he ‘‘[could not] say that one was more
concerning for him than the other.’’ Riccio stated that,
after the petitioner entered his guilty plea, but before
he was sentenced, he did not bring up the idea of depor-
tation because ‘‘[it] was completely understood by him.
That’s why we didn’t talk about it as much as the jail
aspect, because it was not a variable, [it] really wasn’t
. . . anything that could be controlled with an aggra-
vated felony conviction.’’
The petitioner testified that, since he had moved to
the United States in 2006, he had not been back to visit
Jamaica and that most of his family did not live in
Jamaica. The petitioner was then asked about the
e-mails in which Riccio stated that a conviction for the
crimes with which he was charged would ‘‘likely’’ result
in his deportation. He testified that he understood that
advice to mean: ‘‘Basically . . . if I do plead to it, it’s
a chance or maybe a possibility that I could be
deported.’’ He then testified that ‘‘likely’’ has a different
meaning than ‘‘mandatory,’’ which he understood to
mean ‘‘certain . . . no ifs, ands, or buts.’’ He testified
that, throughout the proceedings, he thought that there
‘‘was some type of chance of . . . not being deported,
the way [Riccio] was making it seem in the e-mails.’’
On cross-examination, he was asked if he ‘‘thought to
ask . . . Riccio to explain or to clarify the immigration
consequences that [Riccio] mentioned,’’ to which he
responded, ‘‘No.’’ The petitioner testified that he had
‘‘no idea’’ that deportation was mandatory and that, had
Riccio told him that pleading guilty meant agreeing to
mandatory deportation, he would have ‘‘rather [taken]
the full risk’’ of going to trial. He testified that he thought
that, by pleading guilty, he would have served nine
months in prison and gone home to ‘‘restart’’ his life.
The petitioner then testified that, on the day that
evidence was set to begin, Riccio received the depart-
ment’s report and was ‘‘shocked’’ by the information
contained therein. The petitioner testified that he
thought Riccio already had seen the report and that
Riccio’s reaction to it ‘‘helped to reverse [his] decision’’
about going to trial. He stated that, prior to Riccio
receiving the report, he was ‘‘bullheaded’’ about having
a jury trial ‘‘regardless of whatever was going to hap-
pen.’’ He later testified that jail was ‘‘kinda sorta’’ a
concern for him.
The petitioner acknowledged that, at the hearing at
which he entered his guilty plea, Judge Devlin informed
him that a conviction ‘‘may well have the consequences
of your deportation or exclusion from admission to the
United States or denial of naturalization as a [United
States] citizen,’’ and that, when asked if he understood,
he responded, ‘‘Yes, sir.’’ He testified that he did not
understand that statement by the court to be referenc-
ing mandatory deportation. At the sentencing hearing,
he asked Judge Devlin to ‘‘just grant at least a little bit
of leniency . . . and just give me the probation.’’ When
asked about this statement at the habeas trial, the peti-
tioner testified that he thought the court might have
had the power ‘‘to be lenient on immigration.’’
On March 11, 2020, in a memorandum of decision,
the habeas court denied the amended petition for a writ
of habeas corpus. Although the court concluded that
Riccio’s performance was deficient, it concluded that
the petitioner failed to demonstrate that he was preju-
diced by the deficient performance. The court first ana-
lyzed the petitioner’s claim that Riccio failed to advise
him unequivocally that pleading guilty would subject
him to mandatory deportation and removal from the
country. The court found that ‘‘Riccio failed to clearly
and unambiguously convey to the petitioner the cer-
tainty of his deportation in terms the petitioner could
understand.’’7 Accordingly, the court found that ‘‘the
petitioner ha[d] demonstrated that . . . Riccio’s mis-
advice regarding the immigration consequences of the
plea agreement constituted deficient performance.’’
The habeas court next analyzed whether the peti-
tioner was prejudiced by Riccio’s deficient perfor-
mance. The court looked to Riccio’s testimony at the
habeas trial that the petitioner was concerned about
jail but also with immigration consequences. The court
also looked to Riccio’s testimony that his advice to the
petitioner about proceeding to trial changed when (1)
he received the department’s report in which the peti-
tioner’s account of the events corroborated the victim’s
account, and (2) the victim and her mother appeared
at court prepared to testify against the petitioner. Riccio
testified that, although the strength of the state’s case
improved dramatically at that point, the state’s plea
offer improved for the petitioner. The state’s revised
plea offer included the potential for a fully suspended
sentence, and Riccio testified that he recommended
that the petitioner accept the offer, rather than proceed
to trial, where, ‘‘[had] he . . . lost, he probably would
have gotten a thirty year sentence . . . .’’
The habeas court then looked to the petitioner’s testi-
mony at the habeas trial that he was willing to go to
trial, that he was willing to spend more time in prison
to avoid deportation, and that Riccio’s reaction to the
department’s report changed his mind about accepting
the plea offer. The court also looked to the petitioner’s
testimony that the potential for a fully suspended sen-
tence with the plea offer did not impact his decision
to plead, that jail was ‘‘kinda sorta’’ a concern, and that
his request for leniency at his sentencing pertained to
immigration consequences and not to jail time. The
court stated that it ‘‘[did] not credit the petitioner’s
testimony as to these matters.’’
The habeas court further stated: ‘‘It is undisputed
that, had the petitioner proceeded to trial, he would
have faced 160 years [of] incarceration, including a
seven year mandatory minimum period of incarcera-
tion.8 The court credits Riccio’s testimony that the peti-
tioner was very much concerned about jail. The court
credits the petitioner as to his belief that the victim did
not want to testify and that her mother did not believe
her. This belief corroborates Riccio’s testimony that he
initially believed that the state did not have a strong
case. This view further corroborates Riccio’s testimony
that he became aware that the strength of the state’s
case increased dramatically on his receipt of the
[department’s report] and the victim and her mother
appearing at court to testify. The court credits Riccio’s
testimony that he advised the petitioner to accept the
revised plea offer, rather than risk a significant period
of incarceration, which may have included a mandatory
minimum period of incarceration. It is further undis-
puted that the state offered the petitioner a total effec-
tive sentence of ten years’ incarceration, with a right
[for the state] to argue for up to four years or [for
the petitioner to argue] as low as a fully suspended
sentence, followed by ten years’ probation. . . . In the
petitioner’s allocution at his sentence hearing, he asked
the sentencing court to ‘grant at least a little bit of
leniency on me within this and just give me the proba-
tion.’ . . . Having considered all of the testimony and
exhibits presented at trial, the court finds that the peti-
tioner chose to accept a plea offer with the potential
for a fully suspended sentence instead of risking a signif-
icant period of incarceration at trial. The court further
finds that, had the petitioner known the certainty of
his deportation he, nonetheless, would have accepted
the state’s plea offer to avoid a lengthy jail sentence.
Therefore, the petitioner has failed to present sufficient
credible evidence to demonstrate that there is a reason-
able probability that, absent counsel’s failure to advise
him in accordance with Padilla [v. Kentucky, 559 U.S.
356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010)], he would
have rejected the state’s plea offer and elected to go to
trial. As a result, the petitioner has failed to demonstrate
that he suffered prejudice as a result of counsel’s defi-
cient performance.’’ (Footnote added.)
On May 13, 2020, the habeas court granted the petition
for certification to appeal. This appeal followed. Addi-
tional facts and procedural history will be set forth as
necessary.
We begin by noting the legal principles and the stan-
dard of review relevant to the petitioner’s claim. ‘‘A
claim of ineffective assistance of counsel is governed
by the two-pronged test set forth in Strickland v. Wash-
ington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984)]. Under Strickland, the petitioner has the
burden of demonstrating that (1) counsel’s representa-
tion fell below an objective standard of reasonableness,
and (2) counsel’s deficient performance prejudiced the
defense because there was a reasonable probability
that the outcome of the proceedings would have been
different had it not been for the deficient performance.
. . . For claims of ineffective assistance of counsel aris-
ing out of the plea process, the United States Supreme
Court has modified the second prong of the Strickland
test to require that the petitioner produce evidence that
there is a reasonable probability that, but for counsel’s
errors, [the petitioner] would not have pleaded guilty
and would have insisted on going to trial. . . . An inef-
fective assistance of counsel claim will succeed only
if both prongs [of Strickland] are satisfied.’’ (Internal
quotation marks omitted.) Flomo v. Commissioner of
Correction, 169 Conn. App. 266, 277–78, 149 A.3d 185(2016), cert. denied, 324 Conn. 906, 152 A.3d 544 (2017).
‘‘A claim of ineffective assistance of counsel raised
by a petitioner who faces mandatory deportation as a
consequence of his guilty plea is analyzed more particu-
larly under Padilla v. Kentucky, [supra, 559 U.S. 356],
a case in which the United States Supreme Court held
that counsel must inform clients accurately as to
whether a guilty plea carries a risk of deportation. . . .
Padilla recently was analyzed under Connecticut law
in Budziszewski v. Commissioner of Correction, 322
Conn. 504, 507, 142 A.3d 243 (2016), where our Supreme
Court concluded that, although there are no precise
terms or one-size-fits-all phrases that counsel must use
. . . [i]n circumstances when federal law mandates
deportation . . . counsel must unequivocally convey
to the client that federal law mandates deportation as
the consequence for pleading guilty. . . .
‘‘To satisfy the prejudice prong, the petitioner had the
burden to prove that, absent counsel’s alleged failure to
advise him in accordance with Padilla, it is reasonably
probable that he would have rejected the state’s plea
offer and elected to go to trial. . . . In evaluating
whether the petitioner had met this burden and evaluat-
ing the credibility of the petitioner’s assertions that he
would have gone to trial, it [is] appropriate for the court
to consider whether a decision to reject the plea bargain
would have been rational under the circumstances.’’
(Citations omitted; internal quotation marks omitted.)
Noze v. Commissioner of Correction, 177 Conn. App.
874, 885–86, 173 A.3d 525 (2017).
‘‘The [ultimate] conclusions reached by the [habeas]
court in its decision [on a] habeas petition are matters
of law, subject to plenary review. . . . [When] the legal
conclusions of the court are challenged, [the reviewing
court] must determine whether they are legally and
logically correct . . . and whether they find support
in the facts that appear in the record. . . . To the extent
that factual findings are challenged, this court cannot
disturb the underlying facts found by the habeas court
unless they are clearly erroneous. . . . [A] finding of
fact is clearly erroneous when there is no evidence in
the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed.’’ (Internal quo-
tation marks omitted.) Flomo v. Commissioner of Cor-
rection, supra, 169 Conn. App. 278–79.
When a petitioner challenges the factual findings of
the habeas court, ‘‘[t]his court does not retry the case
or evaluate the credibility of the witnesses. . . .
Rather, we must defer to the [trier of fact’s] assessment
of the credibility of the witnesses based on its firsthand
observation of their conduct, demeanor and attitude.
. . . The habeas judge, as the trier of facts, is the sole
arbiter of the credibility of witnesses and the weight to
be given to their testimony.’’ (Internal quotation marks
omitted.) Sanchez v. Commissioner of Correction, 314
Conn. 585, 604, 103 A.3d 954 (2014). A ‘‘pure credibility
determination’’ made by a habeas court is ‘‘unassail-
able.’’ Breton v. Commissioner of Correction, 325 Conn.
640, 694, 159 A.3d 1112 (2017).
In the present case, the habeas court found that Ric-
cio’s performance was deficient. Consequently, the peti-
tioner challenges only the habeas court’s conclusion
regarding the prejudice prong of the Strickland test.
He argues that his testimony at the habeas trial demon-
strated that there was a reasonable probability that, in
the absence of Riccio’s failure to advise him that his
guilty plea would result in mandatory deportation, he
would have rejected the state’s plea offer and elected
to go to trial. He states that he ‘‘testified unequivocally
that he did not want to be deported.’’ He contends that
both he and Riccio testified that, at all times prior to
pleading guilty, he was ‘‘adamant that he wanted to go
to trial.’’ He argues that he accepted the plea offer in
part because of Riccio’s advice that there would be a
slightly lesser risk of deportation if he received a sen-
tence that did not include incarceration. The petitioner
states: ‘‘Given the ties [he] had to the United States, his
family, his community, and his future, and the lack of
family in and ties to Jamaica, it was rational for [him]
to be willing to reject the plea offer and risk going
to trial.’’ We reject these arguments, as they fail to
demonstrate that the factual findings underlying the
court’s conclusion that the petitioner had not proven
prejudice are clearly erroneous.
The conclusion of the habeas court that the petitioner
had not satisfied the prejudice prong of Strickland is
supported by evidence in the record that the court found
to be credible. Contrary to the petitioner’s argument
on appeal that his primary concern was deportation,
Riccio’s testimony, which the court deemed credible,
was that the petitioner was also concerned about the
risk of incarceration. The state’s case against the peti-
tioner was strong, and he faced a substantial period of
incarceration if found guilty at trial. Riccio testified that
the state’s case was strengthened significantly by the
department’s report and the fact that the victim was
present in the courthouse in order to testify on the day
evidence was to begin. Although the state’s case against
the petitioner appeared strong, its plea offer actually
improved after the petitioner rejected its initial offer.
In fact, the state’s new plea offer, which the petitioner
ultimately accepted, contained no mandatory minimum
prison sentence and allowed him potentially to avoid
incarceration altogether. In Riccio’s experience, he
could not recall a time in which a client in a similar
circumstance had received such leniency from the state.
Had the petitioner proceeded to trial and lost, he would
have faced a maximum sentence of 160 years of incar-
ceration and a mandatory minimum sentence of three
years. Riccio testified that he thought it was likely that
the petitioner, if convicted, would have received a sen-
tence of thirty years.
The court did not find credible the petitioner’s testi-
mony that he would have risked receiving substantially
more jail time had he known that pleading guilty to
violating § 53-21 (a) (2) would have subjected him to
mandatory deportation. As the court set forth in its
memorandum of decision, up until the day that evidence
was set to begin, the petitioner felt strongly about his
case because he did not think the victim would testify
against him, but several events that day changed his
mind. First, he became aware that the victim was at
the courthouse and, thus, was going to testify. Second,
he learned that Riccio saw the department’s report for
the first time and that it changed Riccio’s assessment
of the strength of the state’s case. In fact, the petitioner
testified that Riccio’s reaction that day to the depart-
ment’s report ‘‘helped to reverse [his] decision’’ about
going to trial. Third, the state offered him a plea agree-
ment that was better than the one he previously had
rejected. In light of the overwhelming strength of the
evidence against him, which increased the likelihood
that he would be found guilty at trial, thereby exposing
him to a drastically higher term of incarceration, it
would not have been rational for the petitioner to reject
the state’s improved plea offer.
The court’s assessment of the petitioner’s testimony
at the habeas trial amounts to a ‘‘pure credibility deter-
mination,’’ which is ‘‘unassailable.’’ Breton v. Commis-
sioner of Correction, supra, 325 Conn. 694. Further-
more, in reaching its decision, the court was permitted
to consider whether, under the circumstances, the peti-
tioner rationally would have rejected the plea offer had
he known that accepting it would result in mandatory
deportation. Our independent review of the record
reveals that the court’s findings were supported by evi-
dence presented at the habeas trial. We therefore con-
clude that the habeas court’s conclusion that the peti-
tioner was not prejudiced by Riccio’s performance is
supported by the evidence. Accordingly, the petitioner
cannot prevail on his claim that the habeas court
improperly concluded that he had failed to satisfy the
prejudice prong of Strickland.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The allegations were made after the victim’s mother found text messages
from the petitioner on the victim’s phone. As a result of the victim’s allega-
tions, the Department of Children and Families conducted an investigation,
which led to the petitioner’s arrest.
2
General Statutes § 53a-71 (b) provides in relevant part that sexual assault
in the second degree is a class B felony if the victim is under sixteen years
of age, ‘‘and any person found guilty under this section shall be sentenced
to a term of imprisonment of which nine months of the sentence imposed
may not be suspended or reduced by the court.’’ A violation of General
Statutes § 53-21 (a) (2) is also classified as a class B felony.
General Statutes § 53a-35a provides in relevant part: ‘‘For any felony . . .
the sentence of imprisonment shall be a definite sentence and, unless the
section of the general statutes that defines or provides the penalty for the
crime specifically provides otherwise, the term shall be fixed by the court
as follows . . . (6) For a class B felony . . . a term not less than one year
nor more than twenty years . . . .’’
For each of the four counts under § 53a-71 (a) (1), the petitioner faced
a mandatory minimum term of nine months of incarceration and a maximum
term of twenty years of incarceration. For each of the four counts under
§ 53-21 (a) (2), the petitioner faced a maximum term of twenty years of
incarceration.
3
The petitioner also claimed in his amended petition that Riccio (1) ‘‘failed
to adequately research the legal issue of the petitioner’s immigration status
and the probability of [adverse immigration consequences resulting from]
the plea agreement’’; (2) ‘‘inaccurately advised the petitioner that the plea
offer included a lesser risk of deportation, because there was a chance that
the petitioner would receive a fully suspended sentence, which lessened
the likelihood that immigration authorities would take action to have the
petitioner deported’’; (3) ‘‘failed to impress upon the petitioner that, once
federal authorities apprehended him, deportation was practically inevitable’’;
(4) ‘‘failed to adequately make the petitioner’s immigration status and the
probability of deportation, removal, and inadmissibility for reentry, part of
the plea bargaining process with the prosecuting authority and the judicial
authority’’; and (5) ‘‘failed to negotiate a plea offer with more favorable
immigration consequences.’’ In the present appeal, the petitioner does not
challenge the court’s findings and conclusions as to those claims.
4
The petitioner testified from Jamaica using videoconferencing technol-
ogy.
5
Conlon testified regarding the immigration consequences of pleading
guilty to a violation of § 53-21 (a) (2). He testified that ‘‘it’s pretty clear’’
that a conviction under § 53-21 (a) (2) constitutes an ‘‘aggravated felony,’’
which would make someone convicted under that statute ‘‘100 percent
deportable.’’ He testified that, after reviewing the petitioner’s case, he con-
cluded that ‘‘[t]here was no viable legal argument to challenge . . . the
grounds of removal charged by the immigration service.’’ He further testified
that it would not be accurate to advise someone in the petitioner’s position
that he would ‘‘likely’’ be deported for pleading guilty to such a crime
because ‘‘[i]t’s certain that the person will be found deportable.’’
6
Relis testified regarding the ground for the petitioner’s deportation and
stated that the petitioner was deported because of his conviction under
§ 53-21 (a) (2), which constituted an aggravated felony. She further testified
that she did not know of any other basis on which he could have been
deported.
7
The habeas court rejected the first three claims in the amended petition.
Specifically, the court found that ‘‘[t]he petitioner failed to present any
credible evidence that . . . Riccio failed to adequately research the petition-
er’s legal status and potential adverse immigration consequences.’’ The court
next stated that it ‘‘[could not] find that . . . Riccio failed to make the
petitioner’s immigration status and immigration consequences a part of the
plea bargaining process.’’ The court then stated that it ‘‘[could not] find
that . . . Riccio failed to negotiate a plea agreement with more favorable
immigration consequences for the petitioner.’’
In light of the court’s finding that Riccio failed to advise the petitioner
unambiguously of the immigration consequences of pleading guilty, the
court declined to analyze the petitioner’s remaining two claims that Riccio
rendered deficient performance (1) by inaccurately advising him that the
plea agreement exposed him to a lesser chance of deportation because it
included the possibility of a fully suspended sentence, and (2) by failing to
advise him that deportation was practically inevitable if he were appre-
hended by federal authorities. As previously noted, the petitioner does not
challenge the court’s findings and conclusions as to these claims.
8
The habeas court mistakenly stated that the petitioner faced a seven
year mandatory minimum period of incarceration if he proceeded to trial. In
making this misstatement, the court presumably relied on Riccio’s testimony
stating such. Additionally, in multiple e-mails from Riccio to the petitioner,
which were entered into evidence, Riccio listed the charges against the
petitioner and the potential sentence for each. Riccio stated that each of
the four counts under § 53a-71 (a) (1) carried with it a nine month minimum
period of incarceration, and that each of the four counts under § 53-21 (a)
(2) carried with it a one year minimum period of incarceration. He stated
that, in total, the petitioner faced a seven year mandatory minimum period
of incarceration. Under § 53-21 (a) (2), however, there is no mandatory
minimum period of incarceration when the victim is thirteen years of age
or older. Thus, the petitioner only faced a three year mandatory minimum
period of incarceration for the four counts under § 53a-71 (a) (1). The court’s
misstatement does not affect our analysis of the petitioner’s claim, nor does
the petitioner rely on it in making his argument.