Salmon v. Commissioner of Correction , 178 Conn. App. 695 ( 2017 )

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MARVIN SALMON v. COMMISSIONER
OF CORRECTION
(AC 39095)
DiPentima, C. J., and Prescott and Mihalakos, Js.
Syllabus
The petitioner, who had been convicted of the crime of murder in connection
with the shooting death of the victim, sought a writ of habeas corpus,
claiming that his pretrial counsel, C, had provided ineffective assistance
by failing to advise him during pretrial plea negotiations of the existence
of H, a second eyewitness to the murder, and that he was prejudiced
by counsel’s deficient performance. After the murder, H and another
eyewitness, O, provided statements to the police and identified the
petitioner in a photographic array as the individual who had shot the
victim. A probable cause hearing was held at which the state presented
testimony from a number of witnesses, including O, but H did not testify,
and the state did not elicit any testimony regarding him, nor was he
mentioned by any of the testifying witnesses. C also did not mention H
in a letter that he wrote to the petitioner summarizing the events of the
hearing. Thereafter, the petitioner was extended two plea offers during
a pretrial conference. C wrote the petitioner a letter in which he summa-
rized the offers and stated that O was the only eyewitness available to
the state and that there were serious questions as to his reliability and
credibility. The petitioner subsequently rejected the plea offers and,
following a jury trial during which he was represented by C’s law partner,
N, the petitioner was convicted of murder. At his habeas trial, the
petitioner testified that C never advised him of the existence of H during
pretrial plea negotiations. The habeas court rendered judgment denying
the habeas petition and, thereafter, denied the petition for certification
to appeal, and the petitioner appealed to this court. Held:
1. The habeas court abused its discretion in denying the petition for certifica-
tion to appeal; the resolution of the petitioner’s underlying claim involved
issues that were debatable among jurists of reason and could have been
resolved by a court in a different manner, as the habeas court made a
clearly erroneous factual finding relating to the issue of whether C had
rendered deficient performance by failing to advise the petitioner of H’s
existence during pretrial plea negotiations.
2. The habeas court improperly concluded that the petitioner failed to estab-
lish that C had provided ineffective assistance of counsel: that court’s
factual finding that C must have informed the petitioner of H’s existence
during plea negotiations was clearly erroneous, as there was no evidence
in the record to support that finding and, despite the language of C’s
second letter to the petitioner, the habeas court relied on speculative
testimony of N and the prosecutor, who were not involved in the case
during pretrial plea negotiations and testified at the habeas trial only
as to their respective general practices; moreover, because it was unclear
whether, in the absence of the habeas court’s erroneous factual finding,
it would have credited the petitioner’s testimony that C never told him
about H, and because questions of credibility are for the fact finder to
decide, the case had to be remanded for a new trial on that issue.
3. The petitioner’s claim that he was prejudiced by C’s allegedly deficient
performance during plea negotiations was not reviewable; the habeas
court, which found that the petitioner had failed to show deficient
performance by C, did not address prejudice or make any factual findings
as to whether the petitioner had demonstrated a reasonable probability
that he would have accepted one of the plea offers had C afforded him
effective assistance of counsel, and because the question of prejudice
presents a mixed question of fact and law, this court was unable to
determine whether the petitioner was prejudiced by C’s alleged deficient
performance without the habeas court’s complete factual findings con-
cerning prejudice.
Argued September 7—officially released December 19, 2017
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, Fuger, J.; judgment
denying the petition; thereafter, the court denied the
petition for certification to appeal, and the petitioner
appealed to this court. Reversed; new trial.
Naomi T. Fetterman, for the appellant (petitioner).
Lisa A. Riggione, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Angela R. Macchiarulo, senior assistant
state’s attorney, for the appellee (respondent).
Opinion
MIHALAKOS, J. The petitioner, Marvin Salmon,
appeals following the denial of his petition for certifica-
tion to appeal from the judgment of the habeas court
denying his amended petition for a writ of habeas cor-
pus. On appeal, the petitioner claims that the habeas
court (1) abused its discretion in denying his petition
for certification to appeal and (2) improperly concluded
that he failed to establish the ineffectiveness of his
pretrial counsel. For the reasons set forth herein, we
agree with the petitioner, and conclude that the habeas
court abused its discretion in denying the petition for
certification to appeal. We further conclude that the
habeas court made a clearly erroneous factual finding
that underlies its determination that pretrial counsel
did not render deficient performance. We also deter-
mine that the habeas court did not make a determina-
tion regarding whether any assumed deficient
performance prejudiced the petitioner. Accordingly, we
reverse the judgment of the habeas court and remand
the case for a new trial.
The record discloses the following facts and proce-
dural history. Our prior decision on the petitioner’s
direct appeal in State v. Salmon, 66 Conn. App. 131,
133–34, 783 A.2d 1193 (2001), cert. denied, 259 Conn.
908, 789 A.2d 997 (2002), set forth the following facts:
‘‘During the afternoon of October 22, 1994, the victim,
Claven Hunt, stood at the end of the driveway at 90
Irving Street [in Hartford] talking to another resident
of the building. A red Subaru drove up to the victim,
and a black man with his hair in dreadlocks exited from
the vehicle. The man fired a .38 caliber handgun at the
victim. The victim then ran and his assailant pursued
him. The assailant fired several more bullets; two bullets
hit the victim in the back and three bullets hit a drain
spout and the doors to a garage. Soon thereafter, the
police found the unconscious victim, who was later
pronounced dead at Saint Francis Hospital and Medical
Center in Hartford.
‘‘The red Subaru left the area of the shooting, and an
off-duty Hartford police officer, Matt Rivera, noticed it
moving quickly through traffic on Blue Hills Avenue.
Rivera heard a dispatch that a vehicle matching the
description of the red Subaru had been involved in a
shooting. Although Rivera did not pursue the vehicle
because he was off duty and driving his own car, he
informed the dispatcher that while he was driving on
Blue Hills Avenue he had noticed a vehicle matching
the description of the red Subaru. In addition, Rivera
provided the license plate number of the vehicle. The
police determined that the vehicle belonged to the [peti-
tioner’s] mother and found it parked at the [petitioner’s]
mother’s address.
‘‘The Hartford police picked up the vehicle and
brought it to the evidence garage. The police dusted
the car for latent fingerprints and found a fingerprint
that matched that of the [petitioner]. In addition, the
police determined that there were traces of gunshot
residue from a .38 caliber bullet in the car.
‘‘Subsequently, Detective Keith Knight handled the
investigation of the shooting. During the course of the
investigation, the [victim’s] family provided Knight with
two witnesses to interview, Theodore Owens and
Duane Holmes. On the basis of [a photographic identifi-
cation made by Owens on May 2, 1996], Knight was
able to obtain an arrest warrant for the [petitioner].’’
During a pretrial conference on November 20, 1998,
the petitioner was extended two plea offers. On Decem-
ber 11, 1998, the petitioner formally rejected both plea
offers. In February, 2000, following a jury trial, the peti-
tioner was convicted of murder in violation of General
Statutes § 53a-54a (a), as enhanced pursuant to General
Statutes § 53-202k for using a firearm. Thereafter, the
court sentenced the petitioner to a total effective term
of forty-five years of incarceration. This court affirmed
the petitioner’s conviction on direct appeal. See id., 131.
Thirteen years later, on July 17, 2013, the self-repre-
sented petitioner filed a petition for writ of habeas
corpus. On November 2, 2015, the petitioner, repre-
sented by appointed counsel, filed the amended petition
operative in this appeal. In the sole count of the
amended petition, the petitioner alleged that his consti-
tutional right to the effective assistance of counsel was
violated because his pretrial counsel, Attorney Donald
Cardwell, failed to inform him of Holmes, the second
eyewitness, during plea negotiations.1 Specifically, the
petitioner alleged that Attorney Donald Cardwell’s per-
formance was deficient, in that he: ‘‘[1] failed to mean-
ingfully explain a plea offer to the petitioner; [2] failed
and neglected to properly and adequately advise the
petitioner of the desirability of a plea offer; [3] failed
to adequately inform and advise the petitioner with
regards to the relative strength of the state’s case and
the possibility of success at trial; and [4] affirmatively
misadvised the petitioner regarding the desirability of
proceeding to trial.’’ The petitioner further claimed that
‘‘but for [his] counsel’s deficient performance, the result
of [his] criminal proceedings would have been different
and more favorable to [him].’’
The habeas trial was held on March 3, 2016. Following
the trial, the habeas court, Fuger, J., denied the habeas
petition in an oral decision in which it concluded that
the petitioner failed to establish that Attorney Donald
Cardwell had provided ineffective assistance of coun-
sel.2 Thereafter, the petitioner, pursuant to General Stat-
utes § 52-470, petitioned the habeas court for
certification to appeal the following issue: ‘‘Whether
the petitioner’s constitutional right to the effective
assistance of counsel was violated.’’ The habeas court
denied the petition for certification to appeal, and this
appeal followed. Additional facts and procedural his-
tory will be set forth as necessary.
I
The petitioner claims that the habeas court abused
its discretion in denying his petition for certification to
appeal from the denial of his amended petition for a writ
of habeas corpus with respect to his claim of ineffective
assistance of counsel. We agree with the petitioner.
‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the dismissal of his petition for habeas corpus
only by satisfying the two-pronged test enunciated by
our Supreme Court in Simms v. Warden, 229 Conn.
178, 640 A.2d 601 (1994), and adopted in Simms v.
Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First,
[the petitioner] must demonstrate that the denial of
his petition for certification constituted an abuse of
discretion. . . . Second, if the petitioner can show an
abuse of discretion, he must then prove that the deci-
sion of the habeas court should be reversed on the
merits. . . . To prove that the denial of his petition for
certification to appeal constituted an abuse of discre-
tion, the petitioner must demonstrate that the [resolu-
tion of the underlying claim involves issues that] are
debatable among jurists of reason; that a court could
resolve the issues [in a different manner]; or that the
questions are adequate to deserve encouragement to
proceed further. . . .
‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria . . . adopted by [our Supreme
Court] for determining the propriety of the habeas
court’s denial of the petition for certification.’’ (Cita-
tions omitted; internal quotation marks omitted.) Sand-
ers v. Commissioner of Correction, 169 Conn. App. 813,
821–22, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904,
156 A.3d 536 (2017).
As discussed subsequently in part II A of this opinion,
we conclude that the habeas court made a clearly erro-
neous factual finding relating to the issue of whether
Attorney Donald Cardwell rendered deficient perfor-
mance by failing to advise the petitioner of Holmes’
existence during pretrial plea negotiations. Because the
resolution of the petitioner’s underlying claim involves
issues that are debatable among jurists of reason and
could have been resolved by a court in a different man-
ner, we conclude that the habeas court abused its dis-
cretion in denying his petition for certification to appeal
from the denial of his amended petition for a writ of
habeas corpus.
II
We now turn to the petitioner’s substantive claim
that the habeas court improperly concluded that he had
failed to establish the ineffectiveness of his pretrial
counsel. Specifically, he argues that (1) Attorney Don-
ald Cardwell rendered deficient performance in that
he failed to advise the petitioner of Holmes’ existence
during pretrial plea negotiations, and (2) he was preju-
diced by Cardwell’s deficient performance.
As a preliminary matter, we set forth our standard
of review and the legal principles governing ineffective
assistance of counsel claims. ‘‘[I]t is well established
that [a] criminal defendant is constitutionally entitled
to adequate and effective assistance of counsel at all
critical stages of criminal proceedings. Strickland v.
Washington, [466 U.S. 668, 686, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984)]. This right arises under the sixth and
fourteenth amendments to the United States constitu-
tion and article first, § 8, of the Connecticut constitu-
tion.’’ (Internal quotation marks omitted.) Thomas v.
Commissioner of Correction, 141 Conn. App. 465, 471,
62 A.3d 534, cert. denied, 308 Conn. 939, 66 A.3d 881
(2013). ‘‘The United States Supreme Court, long before
its recent decisions in Missouri v. Frye, 566 U.S. 134,
132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012), and Lafler v.
Cooper, 566 U.S. 156, 132 S. Ct. 1376, 182 L. Ed. 2d 398
(2012), recognized that the two part test articulated in
Strickland . . . applies to ineffective assistance of
counsel claims arising out of the plea negotiation stage.
Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct. 366, 88 L.
Ed. 2d 203 (1985) . . . .’’ (Citation omitted; internal
quotation marks omitted.) Barlow v. Commissioner of
Correction, 150 Conn. App. 781, 792, 93 A.3d 165 (2014);
see also Duncan v. Commissioner of Correction, 171
Conn. App. 635, 647, 157 A.3d 1169 (‘‘[i]t is well estab-
lished that the failure to adequately advise a client
regarding a plea offer from the state can form the basis
for a sixth amendment claim of ineffective assistance
of counsel’’), cert. denied, 325 Conn. 923, 159 A.3d
1172 (2017).
‘‘The habeas court is afforded broad discretion in
making its factual findings, and those findings will not
be disturbed unless they are clearly erroneous. . . .
Historical facts constitute a recital of external events
and the credibility of their narrators. . . . Accordingly,
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. . . . The application of the
habeas court’s factual findings to the pertinent legal
standard, however, presents a mixed question of law
and fact, which is subject to plenary review. . . .
‘‘As enunciated in Strickland v. Washington, supra,
466 U.S. 687, this court has stated: It is axiomatic that
the right to counsel is the right to the effective assis-
tance of counsel. . . . A claim of ineffective assistance
of counsel consists of two components: a performance
prong and a prejudice prong. To satisfy the performance
prong . . . the petitioner must demonstrate that his
attorney’s representation was not reasonably compe-
tent or within the range of competence displayed by
lawyers with ordinary training and skill in the criminal
law. . . . To satisfy the prejudice prong, [the peti-
tioner] must demonstrate that there is a reasonable
probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.
. . . The [petitioner’s] claim will succeed only if both
prongs are satisfied.’’ (Internal quotation marks omit-
ted.) Thomas v. Commissioner of Correction, supra,
141 Conn. App. 470–71. The court, however, ‘‘can find
against a petitioner . . . on either the performance
prong or the prejudice prong, whichever is easier.’’
Id., 471.
A
The petitioner first claims that the habeas court
improperly concluded that Attorney Donald Cardwell’s
performance was not deficient. Specifically, he argues
that the ‘‘record is bereft of support for [the court’s]
finding’’ that Attorney Donald Cardwell informed him
of Holmes’ existence during pretrial plea negotiations.
We agree that the court’s factual finding was clearly
erroneous.
The following additional facts are relevant to our
analysis of this claim. On May 2, 1996, Owens gave a
statement and identified the petitioner in a photo-
graphic array. On the basis of Owens’ identification,
Detective Knight obtained an arrest warrant for the
petitioner on May 28, 1996. On June 11, 1996, Holmes
gave a statement and identified the petitioner in a photo-
graphic array. A probable cause hearing was conducted
on April 22, 1998. At the hearing, the prosecution pre-
sented testimony from Detective Knight, Officers Clay-
ton Winslow and Tracey Carter, Owens, Delray Coomes
and Gary Rakestrau.3 Holmes did not testify at the prob-
able cause hearing, the state did not elicit any testimony
regarding him, and he was never mentioned by any of
the testifying witnesses. On April 24, 1998, Attorney
Donald Cardwell wrote a letter to the petitioner, sum-
marizing the events of the probable cause hearing: ‘‘I
am providing you with copies of all the reports and
statements given to me by the assistant state’s attorney
on the morning of the [probable cause] hearing and ask
that you review all of these documents carefully as we
will have to go over them together when we next meet.’’
During a pretrial conference on November 20, 1998,
the petitioner was extended two plea offers. The court,
Clifford J., offered the petitioner twenty-five years for
a guilty plea to murder. Alternatively, Assistant State’s
Attorney Rosita Creamer offered the petitioner thirty
years for a guilty plea to manslaughter in the first degree
with a firearm. On November 22, 1998, Attorney Donald
Cardwell wrote a letter to the petitioner summarizing
the events of the pretrial conference: ‘‘I gave our view
of the evidence and submitted copies of the photo-
graphs of the scene which support our contention that
no one could get a clear view of the individual’s face
from the gas station where [Owens] testified he was
standing at the time of this incident. This is important
to the defense as there is only one eyewitness available
to the state and there are serious questions as to his
reliability and credibility.
‘‘The state on the other hand has tied in your mother’s
vehicle and, in addition, has evidence of your thumb
print being found in the car as well as gun powder
residue. While this does not place you in the automobile
at the time of the shooting it allows the state to argue
that since you were in the automobile at some time and
since gun powder residue was found in the automobile,
the witness who identifies you can be believed. This
becomes the critical question for the jury.
‘‘Judge Clifford, who is the presiding Judge, agreed
with me that the case is defensible. At the same time,
we all know from experience that a jury is absolutely
unpredictable so that every trial involves a certain
amount of risk.
‘‘If the state stays with the charge of murder Judge
Clifford will give you the absolute bottom of the range
which is 25 years. You should keep in mind that a
conviction would most likely result in a sentence of
around 50 years so that the offer is approximately [one
half] of your exposure. In response to my question as
to whether the state would change the charge from
murder to manslaughter, the prosecutor said she would
do so but that she would then add a charge of possession
of a weapon and want 25 years on the manslaughter
charge and 5 years on the weapon for a total effective
sentence of 30 years. I see absolutely no gain to you
from this change in charge as you would most likely
do 85 [percent] of your time under either charge and
85 [percent] of 25 years is obviously preferable to 85
[percent] of 30 years.
‘‘I plan to meet with you prior to . . . your next court
date at which time we will discuss the contents of this
letter carefully and fully. At the same time I wanted
you to have this information in advance so that you
would have an opportunity to consider it before our
next meeting. Please understand that I am not making
any recommendation at this time. I am simply communi-
cating to you what was discussed at the pretrial confer-
ence.’’ (Emphasis added.)
On December 8, 1998, Attorney Donald Cardwell met
with the petitioner and reviewed the contents of the
November 22, 1998 letter ‘‘to make further sure that he
understood’’ the available plea offers. On December 11,
1998, the petitioner formally rejected both plea offers.
Attorney Donald Cardwell’s brother and law partner,
Attorney Nicholas Cardwell, represented the petitioner
at his criminal trial. On January 20, 2000, during voir
dire, the state filed its witness list, disclosing both
Owens and Holmes. On January 25, 2000, the petitioner
filed a motion for disclosure and production, which,
in addition to general discovery requests, also sought
information concerning Owens and Holmes. Attorney
Donald Cardwell passed away in 2002.
At his habeas trial, the petitioner testified that in
November, 1998, Attorney Donald Cardwell informed
him of the two available plea offers. The petitioner
further testified that they discussed the offers as well
as his possible sentence exposure if he continued to
trial and was found guilty. The petitioner explained that
he rejected the plea offers because ‘‘[Donald] Cardwell
advised [him] that the state didn’t have a strong case
against [him] . . . [and] [t]here was only one eyewit-
ness, and he [wasn’t] credible . . . .’’ The petitioner
testified that he never was advised of the existence of
Holmes during plea negotiations, and that he could only
recall Cardwell discussing three witnesses: Owens, Rak-
estrau and Donna McNair.4 The petitioner averred that
he did not become aware of Holmes’ statement and
identification until January, 2000, after Attorney Nicho-
las Cardwell had taken over his representation.
Attorney Nicholas Cardwell also testified at the peti-
tioner’s habeas trial. Because the underlying criminal
matter concluded in 2000, he could not recall many
specifics of his firm’s representation of the petitioner
and had no recollection as to what was in the petition-
er’s file when he took over his representation. Further-
more, he stated that he could not recall providing the
petitioner with Holmes’ statement in January, 2000. Car-
dwell spoke generally regarding his firm’s criminal trial
practices and policies, including how he would review
the state’s file and make copies pursuant to the state’s
attorney’s office ‘‘open file policy.’’ He also testified
that it was his practice to review all of the reports,
police statements, witness statements and anything else
that could be relevant to the trial. Cardwell further
testified that he could not ‘‘imagine trying a murder
case without reviewing all the evidence and giving the
defendant a complete understanding of the risks, and
the strengths, the weaknesses so that the defendant
could make an intelligent decision; and also what the
likelihood would be if you lost in terms of a sentence.’’
Assistant State’s Attorney John Fahey, the prosecutor
in the petitioner’s criminal trial, testified regarding his
office’s discovery practices and procedures. Fahey
stated that the Hartford Police Department sent all doc-
uments related to their investigation to the prosecutor’s
office. Fahey described Creamer, the assistant state’s
attorney handling the matter during pretrial, as ‘‘the
most thorough attorney in that office at that point in
terms of securing everything possible . . . .’’ He
attested that Holmes’ statement, which was taken on
June 11, 1996, would have been disclosed to defense
counsel ‘‘the minute it came in.’’ Fahey further stated
that there were no surprise witness statements dis-
closed on the eve of trial.
Attorney Kenneth Simon, a qualified expert in crimi-
nal defense matters in state court, also testified at the
habeas trial as the petitioner’s expert. Attorney Simon
testified as to the standard of care with respect to
defending criminal cases. He also testified regarding
the ‘‘open file policy’’ and how discovery was handled
in the judicial district of Hartford at the time of the
petitioner’s criminal trial. Simon stated that he had
reviewed the arrest warrant, search warrants, criminal-
istics reports, police reports, witness statements and
the various letters from Attorney Donald Cardwell to
the petitioner prior to testifying. Simon then opined as
to the adequacy of the information conveyed by Card-
well to the petitioner in the November 22, 1998 letter.
He testified that ‘‘in [his] view there was information
that [he] was given that is not referenced in that letter
that looks like a fairly important piece of evidence.’’
Simon, however, also acknowledged that he was look-
ing at the letter in a ‘‘vacuum’’ and could not be sure
without seeing what Attorney Donald Cardwell had in
his file at the time.
The habeas court acknowledged the evidentiary
issues that this case presented, given that Attorney Don-
ald Cardwell had passed away, stating that ‘‘[t]he only
other person who can testify as to what . . . may have
transpired between the two men would be [the peti-
tioner], and of course, he testified in a somewhat incon-
sistent manner.’’ The court then concluded: ‘‘[I]t’s clear
to me, based upon the testimony of [Attorney] Nicholas
Cardwell of how he conducted his practice being a
partner with [Attorney] Donald Cardwell, when I look
at [the November 22, 1998 letter], I do not believe that
to be the entirety of the advice offered to [the petitioner]
by Attorney Donald Cardwell. I believe that [Attorney]
Donald Cardwell amplified upon that letter. Conse-
quently, this court concludes that [the petitioner] was,
in fact, properly advised. The plea offer was clearly
explained. [The petitioner] was eminently aware of the
relative strength of the state’s case, and this court is
convinced that [the petitioner] . . . had been notified
by his lawyers of the risk of taking the case to trial.’’
(Emphasis added.)
We next set forth the legal principles that govern
ineffective assistance of counsel claims in the context
of plea negotiations. ‘‘Pretrial negotiations implicating
the decision of whether to plead guilty is a critical stage
in criminal proceedings . . . and plea bargaining is an
integral component of the criminal justice system and
essential to the expeditious and fair administration of
our courts. . . . For counsel to provide effective assis-
tance, he must adequately investigate each case to
determine relevant facts. . . . This court has held that
[because] a defendant often relies heavily on counsel’s
independent evaluation of the charges and defenses,
the right to effective assistance of counsel includes an
adequate investigation of the case to determine facts
relevant to the merits or to the punishment in the event
of conviction.’’ (Internal quotation marks omitted.)
Mahon v. Commissioner of Correction, 157 Conn. App.
246, 253, 116 A.3d 331, cert. denied, 317 Conn. 917, 117
A.3d 855 (2015).
‘‘In any case presenting an ineffectiveness claim, the
performance inquiry must be whether counsel’s assis-
tance was reasonable considering all the circum-
stances. . . . Judicial scrutiny of counsel’s
performance must be highly deferential. It is all too
tempting for a defendant to second-guess counsel’s
assistance after conviction or adverse sentence, and it
is all too easy for a court, examining counsel’s defense
after it has proved unsuccessful, to conclude that a
particular act or omission of counsel was unreasonable.
. . . A fair assessment of attorney performance
requires that every effort be made to eliminate the dis-
torting effects of hindsight, to reconstruct the circum-
stances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the
time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption
that counsel’s conduct falls within the wide range of
reasonable professional assistance . . . .’’ (Internal
quotation marks omitted.) Helmedach v. Commis-
sioner of Correction, 168 Conn. App. 439, 453, 148 A.3d
1105, cert. granted, 323 Conn. 941, 151 A.3d 845 (2016).
‘‘[C]ounsel performs effectively and reasonably when
he . . . provides a [defendant] with adequate informa-
tion and advice upon which the [defendant] can make
an informed decision as to whether to accept the state’s
plea offer. . . . We are mindful that [c]ounsel’s conclu-
sion as to how best to advise a client in order to avoid,
on the one hand, failing to give advice and, on the other,
coercing a plea enjoys a wide range of reasonableness
. . . . Accordingly, [t]he need for recommendation
depends on countless factors, such as the defendant’s
chances of prevailing at trial, the likely disparity in
sentencing after a full trial compared to the guilty plea
. . . whether [the] defendant has maintained his inno-
cence, and the defendant’s comprehension of the vari-
ous factors that will inform [his] plea decision.’’
(Citations omitted; internal quotation marks omitted.)
Sanders v. Commissioner of Correction, supra, 169
Conn. App. 828.
With the foregoing facts and legal principles in mind,
we now review the habeas court’s conclusion that Attor-
ney Donald Cardwell did not render deficient perfor-
mance. The record indicates that Holmes gave his
statement to Detective Knight on June 11, 1996, twenty-
three months prior to the probable cause hearing, and
twenty-nine months prior to the pretrial conference
at which the plea offers were made. Attorney Donald
Cardwell, however, never referenced Holmes in his
April and November, 1998 letters to the petitioner.
Importantly, the November 22, 1998 letter, which was
written while the two plea offers were pending, specifi-
cally states that ‘‘there is only one eyewitness available
to the state and there are serious questions as to his
reliability and credibility.’’ Despite the language of this
letter, the habeas court relied on the speculative testi-
mony of Attorneys Nicholas Cardwell and Fahey, who
were not involved in the case during pretrial plea negoti-
ations and could testify only as to their respective gen-
eral practices. Because there is no evidence in the
record to support the finding that Attorney Donald Car-
dwell informed the petitioner of Holmes’ existence dur-
ing plea negotiations and the habeas court relied on
the speculative testimony of Attorneys Nicholas Card-
well and Fahey, we conclude that this factual finding
was clearly erroneous. See Rosa v. Commissioner of
Correction, 171 Conn. App. 428, 434, 157 A.3d 654 (‘‘[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 conviction that a mistake has been committed’’
[internal quotation marks omitted]), cert. denied, 326
Conn. 905, 164 A.3d 680 (2017); see also State v. Smith,
40 Conn. App. 789, 801, 673 A.2d 1149 (‘‘[i]f the trial
court’s conclusions or findings of fact rest on specula-
tion rather than on sufficient evidence, they are clearly
erroneous’’), cert. denied, 237 Conn. 915, 675 A.2d 886,
cert. denied, 519 U.S. 873, 117 S. Ct. 191, 136 L. Ed. 2d
128 (1996).
Although we conclude that the court’s affirmative
finding of fact that Attorney Donald Cardwell must have
told the petitioner about Holmes’ statement in Novem-
ber, 1998, was clearly erroneous, that error does not
necessarily compel a conclusion that the petitioner met
his burden of persuasion that Attorney Donald Cardwell
never informed him about the existence of Holmes as a
witness.5 Although the petitioner testified that Attorney
Donald Cardwell never told him about Holmes, it is
unclear whether, in the absence of the habeas court’s
erroneous factual finding, it would have credited the
petitioner’s testimony that he was never told about
Holmes. Because questions of credibility are for the
finder of fact, we conclude that the case must be
remanded for a new trial on this issue.
B
We now turn to the prejudice prong of Strickland.
The petitioner claims that he was prejudiced by Attor-
ney Donald Cardwell’s deficient performance because
he would have accepted one of the available plea offers
had he been properly advised during pretrial plea nego-
tiations. At oral argument before this court, the petition-
er’s counsel argued that habeas court’s oral decision
addressed only the performance prong and stopped
short of addressing prejudice. We agree and, accord-
ingly, do not address the prejudice prong of Strickland
on appeal because the habeas court did not address
prejudice as it relates to Attorney Donald Cardwell’s
allegedly deficient performance during plea negoti-
ations.
As we previously stated, Strickland requires that a
petitioner prove both deficient performance and
resulting prejudice, and thus a court can find against a
petitioner on either ground. See Thomas v. Commis-
sioner of Correction, supra, 141 Conn. App. 471. In
the present case, the habeas court concluded that the
petitioner had failed to satisfy the performance prong of
Strickland, and, therefore, it did not need to determine
whether the petitioner also had failed to satisfy the
prejudice prong. See id.; see also Elsey v. Commis-
sioner of Correction, 126 Conn. App. 144, 162, 10 A.3d
578 (‘‘[b]ecause both prongs . . . [of the Strickland
test] must be established for a habeas petitioner to
prevail, a court may dismiss a petitioner’s claim if he
fails to meet either prong’’ [internal quotation marks
omitted]), cert. denied, 300 Conn. 922, 14 A.3d 1007
(2011).
We note that the habeas court made certain factual
findings that tend to indicate that the petitioner could
have accepted a plea offer prior to or during trial.6 The
habeas court, however, did not make any findings as to
whether the petitioner had demonstrated ‘‘a reasonable
probability [that he] would have accepted the earlier
plea offer had [he] been afforded effective assistance
of counsel.’’ (Internal quotation marks omitted.) Mahon
v. Commissioner of Correction, supra, 157 Conn. App.
253, quoting Missouri v. Frye, supra, 566 U.S. 147; see
also Ebron v. Commissioner of Correction, 307 Conn.
342, 357, 53 A.3d 983 (2012) (to show prejudice in lapsed
plea case, petitioner must establish: ‘‘[1] it is reasonably
probable that, if not for counsel’s deficient perfor-
mance, the petitioner would have accepted the plea
offer, and [2] the trial judge would have conditionally
accepted the plea agreement if it had been presented
to the court’’), cert. denied sub nom. Arnone v. Ebron,
569 U.S. 913, 133 S. Ct. 1726, 185 L. Ed. 2d 802 (2013).
Because the question of prejudice presents a mixed
question of fact and law; Thomas v. Commissioner
of Correction, supra, 141 Conn. App. 470; we cannot
determine whether the petitioner was prejudiced by
Attorney Donald Cardwell’s alleged deficient perfor-
mance without the habeas court’s complete factual find-
ings concerning prejudice.
In sum, we conclude that the habeas court abused
its discretion when it denied the petitioner’s petition
for certification to appeal because the resolution of the
petitioner’s underlying claim involves issues that are
debatable among jurists of reason and a court could
resolve the issues in a different manner. We further
conclude that the habeas court made an erroneous fac-
tual finding underlying its conclusion that Attorney
Donald Cardwell did not render deficient performance
during pretrial plea negotiations. We therefore remand
the case to the habeas court for a new trial.7
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other judges concurred.
1
In the amended petition, the petitioner also initially alleged the ineffective
assistance of his trial counsel, Attorney Nicholas Cardwell. That count,
however, was withdrawn on March 3, 2016.
2
Although the court discussed the performance and prejudice prongs of
Strickland v. Washington, 466 U.S. 668, 686–87, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984), in its statement of law, it never expressly addressed either
prong in its analysis of the petitioner’s claim. Upon our review of the habeas
trial transcript, we conclude that the court, in finding that that the petitioner
had been ‘‘properly advised’’ by Attorney Donald Cardwell during plea negoti-
ations, implicitly held that the petitioner failed to establish that Attorney
Donald Cardwell rendered deficient performance. We are unable to con-
clude, however, that the court made an implicit finding as to prejudice.
3
Rakestrau was an eyewitness to the October 22, 1994 incident. At the
probable cause hearing, he testified to hearing gunshots and to seeing a
‘‘black gentleman getting inside a red car.’’ Rakestrau, however, did not get
a clear view of the suspect and, therefore, was unable to identify the peti-
tioner when he was interviewed by Detective Knight. Attorney Donald Card-
well viewed Rakestrau as a favorable witness for the defense.
4
McNair was a witness to the October 22, 1994 incident. McNair stated
that she heard four to five gunshots, after which she saw two black males
in a red car traveling at a high rate of speed on Irving Street. She provided
a license plate number that was only one digit different from that of the
red Subaru.
5
In similar contexts, our courts have been mindful that a lack of proof
as to fact ‘‘A’’ does not establish the existence of fact ‘‘B.’’ See Wyszomierski
v. Siracusa, 290 Conn. 225, 245 n.19, 963 A.2d 943 (2009) (‘‘difference
between the failure to draw a particular conclusion and the embrace of an
opposite conclusion’’[emphasis added]); DiVito v. DiVito, 77 Conn. App.
124, 138–39, 822 A.2d 294 (fact finder may not predicate finding of fact
simply on disbelief of evidence to contrary), cert. denied, 264 Conn. 921,
828 A.2d 617 (2003).
6
The petitioner testified that he was not aware that the plea offers
remained open after he had rejected them. The petitioner testified that after
receiving Holmes’ statement he told Attorney Nicholas Cardwell that he
wanted to take the plea offer, but Cardwell told him that the offer had
expired and that his only choice was to proceed with the trial. The petitioner
further testified that he was not aware that he could negotiate plea offers
during the trial. Although the petitioner professed his innocence throughout
the underlying criminal matter and the habeas trial, he testified that he
would have pleaded guilty because he had seen a lot of innocent people go
to trial and be found guilty. The court, however, heard the petitioner’s
testimony to that effect and did not credit it.
The petitioner’s testimony was contradicted by the testimony of both
Attorneys Nicholas Cardwell and Fahey. Attorney Nicholas Cardwell testi-
fied that he could not recall giving the petitioner Holmes’ statement during
voir dire in January, 2000. He also testified that it was the petitioner’s
decision to go to trial. He could not recall the petitioner ever ‘‘express[ing]
any interest in [him] approaching the state with any plea negotiations . . .
either prior to or during the course of the trial.’’ Cardwell testified that if
the petitioner had told him that he wanted to plead guilty, he would have
taken that information to Fahey and that given his firm’s practice and the
‘‘murder blitz’’ that was taking place in Hartford at the time, he could not
imagine telling the petitioner that the offer had expired and that the state
was not willing to make another offer.
Fahey testified that although the state’s plea offers were rejected and
withdrawn, he extended Attorney Creamer’s offer to Attorney Nicholas
Cardwell on the eve of the trial, subject to the approval of Judge Clifford.
Fahey further testified that he likely kept this offer open throughout trial
given that his office was trying ‘‘murder case after murder case after murder
case,’’ and his belief that the jury would not find the petitioner guilty.
Specifically, Fahey described the petitioner’s case as one of the weakest
cases of his career.
7
We note that a sua sponte motion for articulation, pursuant to Practice
Book § 60-5, is unavailable as Judge Fuger retired from the bench in Janu-
ary, 2017.