Sanders v. Commissioner of Correction ( 2016 )

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LEON SANDERS v. COMMISSIONER
OF CORRECTION
(AC 37512)
DiPentima, C. J., and Sheldon and Schaller, Js.
Argued September 8—officially released December 20, 2016
(Appeal from Superior Court, judicial district of
Tolland, Fuger, J.)
Deborah G. Stevenson, assigned counsel, for the
appellant (petitioner).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were Mary M. Galvin, former state’s
attorney, and Courtney M. Chaplin, deputy assistant
state’s attorney, for the appellee (respondent).
Opinion
DiPENTIMA, C. J. The petitioner, Leon Sanders,
appeals following the denial of his petition for certifica-
tion to appeal from the judgment of the habeas court
denying his third postconviction petition for a writ of
habeas corpus challenging his conviction on charges
of assault in the first degree and being a persistent
dangerous felony offender. On appeal, the petitioner
claims that the habeas court (1) abused its discretion
in denying his petition for certification to appeal and
(2) improperly denied his petition for a writ of habeas
corpus in which he claimed that counsel in both his
underlying criminal prosecution and his first postcon-
viction habeas corpus proceeding rendered ineffective
assistance. Because the petitioner did not demonstrate
that the habeas court abused its discretion in denying
the petition for certification to appeal, we dismiss
the appeal.
The following facts and procedural history are rele-
vant to our decision. The petitioner was charged with
two counts of assault in the first degree and with being
a persistent dangerous felony offender. These charges
stemmed from an incident in Ansonia on May 23, 2001,
in which Kente Douglas was shot multiple times in the
back. ‘‘At the time of the shooting, Douglas was reaching
through the back door of a parked automobile to
remove a child’s car seat. Jackie Garcia, Douglas’ girl-
friend, was standing near the automobile with the cou-
ple’s four year old daughter in her arms. An automobile
drew up beside Douglas, and the [petitioner] fired a
gun at Douglas through the passenger side window.
Douglas fell to the ground, and the [petitioner] contin-
ued to fire gunshots at him until the automobile left
the area. During the shooting, Garcia went inside with
her child. After the [petitioner] left, she returned to
the street with a cordless telephone. She dialed 911,
reported to the operator that her boyfriend had been
shot and named the [petitioner] as the shooter. When
the police arrived, an officer spoke with Garcia, who
told him that the [petitioner] had pulled up in a car and
shot Douglas five or six times. A police detective spoke
with Douglas, who also stated that the [petitioner] had
shot him. Later, as Douglas was transported in an ambu-
lance to a hospital, he told another police officer that
the [petitioner] had shot him. In June, 2001, the [peti-
tioner] was arrested and charged. Following the jury
trial, at which he was convicted of two counts of assault,
the [petitioner] was tried to the court on the part B
information in which he was accused of being a persis-
tent dangerous felony offender and was convicted on
that charge as well. Thereafter, the court imposed a
sentence of forty years imprisonment.’’ State v. Sand-
ers, 86 Conn. App. 757, 759, 862 A.2d 857 (2005). On
the petitioner’s appeal from his conviction, this court
affirmed the trial court’s judgment. Id.Following his conviction, the petitioner brought sev-
eral petitions for writs of habeas corpus. At issue in
the present appeal is the petitioner’s third such petition,
which was filed on December 12, 2012, and amended
for a fourth time on September 25, 2014 (operative
petition).1 The petitioner set forth three separate claims.
In count one, the petitioner alleged that his first habeas
counsel, Sebastian DeSantis, ‘‘was ineffective in failing
to allege in the prior habeas petition a claim of ineffec-
tive assistance of [his criminal defense counsel, Robert
Berke] for his failure to properly advise him of the
state’s offer of eight years incarceration on a guilty plea,
and had he been properly advised, he would not have
rejected it.’’ In count two, the petitioner alleged that
his state and federal rights to due process of law were
violated because Berke had not properly advised him
whether to accept or reject the state’s pretrial offer of
eight years incarceration on a guilty plea. In count three,
the petitioner alleged actual innocence, but he with-
drew that claim prior to trial.
At the trial on December 2, 2014, the petitioner pre-
sented evidence describing the state’s plea offer. Specif-
ically, the petitioner submitted the transcript from the
first habeas trial, which was held on October 2, 2008,
when he had testified that the state’s plea offer was for
eight years with the right to argue for less. The petitioner
repeated this testimony at the proceeding on December
2, 2014. Berke, however, testified that there was a plea
offer extended by the state, but he could not remember
the exact terms of the plea offer. Berke further testified
that he did not recall the alleged plea offer of eight
years imprisonment. In terms of how he advised the
petitioner regarding the state’s plea offer, Berke testi-
fied that although he could not recall any specific dis-
cussion with the petitioner, he typically presents his
clients with ‘‘the positive [and] the negatives of going
to trial—the risks of trial [and] the maximum exposure.
[He does not] present [his] opinion on whether they
should take an offer or not. . . . [T]hat was their deci-
sion and not [his].’’
Following the trial, the court, Fuger, J., denied the
operative petition in an oral decision in which it con-
cluded that Berke and DeSantis had provided the peti-
tioner with effective assistance of counsel.2 With
respect to the first count, the court determined that it
could not ‘‘find any deficient performance by [DeSantis]
in his representation of [the petitioner] at the first
habeas trial’’ and, therefore, it denied the first count of
the petition. In rejecting the claim that DeSantis ren-
dered ineffective assistance for failing to allege in the
first habeas action a claim that Berke’s performance
was ineffective for inadequately advising the petitioner
regarding the state’s plea offer, the court made several
findings. It expressly credited the testimony of DeSantis
that the petitioner did not raise any concerns to him
regarding Berke’s representation in connection with
the plea offer, and that the petitioner made it clear to
DeSantis that he wanted to go to trial to prove his
innocence. The court also specifically found, in accor-
dance with DeSantis’ testimony, that in order to deter-
mine which issues to raise in the habeas petition, he
reviewed Berke’s file, examined the criminal trial tran-
scripts and files, conversed with the petitioner, hired
an investigator, reviewed the relevant police reports
and reviewed the petition with the petitioner before he
filed it. In drafting the habeas petition, DeSantis testified
that he tried to be overinclusive in order to preserve
issues for future litigation, and his typical practice was
to include a claim in the petition if the petitioner was
adamant about including it, unless it was frivolous. In
addition, DeSantis agreed with counsel for the respon-
dent, the Commissioner of Correction, that the first
habeas court, Nazzaro, J., ‘‘found that it was clear that
the petitioner wanted to go to trial and to prove his
innocence rather than take a plea offer . . . .’’
As to the petitioner’s second count, the court deter-
mined that Berke’s performance in the petitioner’s
underlying criminal proceedings was not deficient. With
respect to this conclusion, the court explained that the
petitioner ‘‘rejected a plea bargain that was apparently
eight years with the right to argue for a lower sentence.
[The petitioner] went to trial and received, after being
found guilty by the jury, a sentence of forty years of
confinement.’’ (Emphasis added.) The court expressly
noted that ‘‘Berke did convey and discuss the plea bar-
gains with [the petitioner]. The record is crystal clear
that [the petitioner] protested his innocence and always
asserted that he wished to proceed to trial. The court
is convinced based upon the testimony of [Berke], the
testimony at the first habeas trial, that [Berke] did in
fact adequately explain the pretrial offer, discuss the
case, discuss the maximum punishments, discuss the
pros and cons of pleading guilty or not guilty, but left,
as he should have, the final decision as to whether to
accept or reject such offer to [the petitioner].’’ It further
found Berke’s representation of the petitioner to be
‘‘sufficiently within that band of representation that will
pass constitutional muster.’’
The court then explained that the petitioner had the
burden of proving that ‘‘it was reasonably probable
that a court, a judge would have accepted the [state’s
alleged] eight year [plea] offer in this case.’’ The court
proceeded to explain that it could not ‘‘make the finding
that the petitioner [established that] it [was] reasonably
probable that [the trial judge] would have accepted the
eight year offer, the key word being probable.’’ With
respect to this finding, the court highlighted: the peti-
tioner’s prior conviction of manslaughter, for which the
petitioner had served an eleven year prison sentence;
that the petitioner had been arrested in connection with
a shooting incident soon after he was released after
serving his sentence for his manslaughter conviction;
and that the petitioner had other convictions for crimes
involving firearms. On the basis of the evidence before
it, the court concluded that the petitioner had not met
his burden of proving by a ‘‘preponderance of the evi-
dence that it [was] reasonably probable that a court
would have accepted’’ the state’s eight year plea offer.
As a result of this finding, the court denied the operative
petition claiming ineffective assistance by Berke and
DeSantis. Subsequently, the petitioner filed a petition
for certification to appeal. In that petition, the petitioner
stated that the grounds for appeal are: ‘‘Whether [the]
habeas court erred when it found that [Berke] was
not ineffective when he discussed the strengths [and]
weaknesses of the state’s case but did not advise the
petitioner whether he should accept or reject the state’s
plea offer.’’3 On December 4, 2014, the court denied the
petition for certification to appeal. This appeal
followed.
The petitioner claims that the habeas court abused
its discretion in denying his petition for certification
to appeal because it improperly denied his claims of
ineffective assistance of counsel with respect to Berke
and DeSantis. ‘‘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 consti-
tuted an abuse of discretion. . . . Second, if the peti-
tioner can show an abuse of discretion, he must then
prove that the decision of the habeas court should be
reversed on the merits.’’ (Internal quotation marks omit-
ted.) Melendez v. Commissioner of Correction, 151
Conn. App. 351, 357–58, 95 A.3d 551, cert. denied, 314
Conn. 914, 100 A.3d 405 (2014). To prove that the denial
of his petition for certification to appeal constituted an
abuse of discretion, ‘‘the petitioner must demonstrate
that the [resolution 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 encourage-
ment to proceed further.’’ (Internal quotation marks
omitted.) Moye v. Commissioner of Correction, 168
Conn. App. 207, 214, 145 A.3d 362 (2016).
‘‘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.’’ (Internal
quotation marks omitted.) Bozelko v. Commissioner of
Correction, 162 Conn. App. 716, 721, 133 A.3d 185, cert.
denied, 320 Conn. 926, 133 A.3d 458 (2016).
Here, the petitioner’s underlying claims are that the
habeas court improperly concluded that (1) Berke pro-
vided effective assistance of counsel and (2) DeSantis
provided effective assistance of counsel. After
determining the merits of these underlying claims, we
conclude that the court did not abuse its discretion in
denying the petition for certification to appeal.
Our standard of review of a habeas court’s judgment
on ineffective assistance of counsel claims is well set-
tled. ‘‘The habeas court is afforded broad discretion in
making its factual findings, and those findings will not
be disturbed unless they are clearly erroneous. . . .
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.’’ (Internal quotation marks omitted.)
Horn v. Commissioner of Correction, 321 Conn. 767,
775, 138 A.3d 908 (2016). Therefore, ‘‘our review of
whether the facts as found by the habeas court consti-
tuted a violation of the petitioner’s constitutional right
to effective assistance of counsel is plenary.’’ (Internal
quotation marks omitted.) Kearney v. Commissioner
of Correction, 113 Conn. App. 223, 228, 965 A.2d 608(2009).
It is well established that ‘‘[a] criminal defendant is
constitutionally entitled to adequate and effective assis-
tance of counsel at all critical stages of criminal pro-
ceedings . . . . This right arises under the sixth and
fourteenth amendments to the United States constitu-
tion and article first, § 8, of the Connecticut constitu-
tion. . . . As enunciated in Strickland v. Washington,
[466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984)], this court has stated: It is axiomatic that the
right to counsel is the right to the effective assistance
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.’’ (Citation omitted; internal quotation marks omit-
ted.) Horn v. Commissioner of Correction, supra, 321
Conn. 775. ‘‘To satisfy the second prong of Strickland,
that his counsel’s deficient performance prejudiced his
defense, the petitioner must establish that, as a result
of his trial counsel’s deficient performance, there
remains a probability sufficient to undermine confi-
dence in the verdict that resulted in his appeal. . . .
The second prong is thus satisfied if the petitioner can
demonstrate that there is a reasonable probability that,
but for that ineffectiveness, the outcome would have
been different.’’ (Internal quotation marks omitted.) Id.,
776. ‘‘An ineffective assistance of counsel claim will
succeed only if both prongs [of Strickland] are satis-
fied.’’ (Internal quotation marks omitted.) Bozelko v.
Commissioner of Correction, supra, 162 Conn. App.
722–23. The court, however, ‘‘may decide against a peti-
tioner on either prong, whichever is easier.’’ Lewis v.
Commissioner of Correction, 165 Conn. App. 441, 451,
139 A.3d 759, cert. denied, 322 Conn. 901, 138 A.3d
931 (2016).
I
The petitioner first claims that the habeas court
abused its discretion in denying his petition for certifica-
tion to appeal because it improperly denied his claim
of ineffective assistance of counsel with respect to
Berke. As described in the preceding paragraph, to
determine whether the habeas court abused its discre-
tion in denying the petition for certification to appeal,
this court will look at the underlying merits of the peti-
tioner’s claims. See Bozelko v. Commissioner of Correc-
tion, supra, 162 Conn. App. 721. Specifically, the
petitioner contends that the habeas court improperly
concluded that (1) Berke’s performance concerning the
state’s plea offer was neither deficient nor prejudicial
and (2) Berke’s failure to advise the petitioner on acces-
sorial liability did not constitute ineffective assistance.
We will address each claim in turn.
A
Turning to the petitioner’s first claim, we agree with
the petitioner that Berke’s performance pertaining to
the state’s plea offer was deficient; however, we are
not persuaded that the petitioner established that he
was prejudiced by the deficient performance. As ‘‘ ‘[a]n
ineffective assistance of counsel claim will succeed only
if both prongs [of Strickland] are satisfied’ ’’; id., 722–23;
we conclude that the petitioner failed to meet his bur-
den of establishing his ineffective assistance of counsel
claim with respect to Berke’s performance pertaining
to the state’s plea offer. Because the petitioner failed
to establish that he was prejudiced by Berke’s deficient
performance, he cannot demonstrate that the issues
pertaining to this claim are debatable among jurists of
reason, that a court could resolve those issues differ-
ently or that the questions raised deserve encourage-
ment to proceed further. Therefore, as we discuss
subsequently in this opinion, the petitioner has failed
to demonstrate that the court abused its discretion in
denying his petition for certification to appeal as to
this claim.
We begin by setting forth the governing legal princi-
ples in cases involving claims of ineffective assistance
of counsel in the plea bargain context. As previously
noted, under the Strickland test, ‘‘[a] claim of ineffec-
tive assistance of counsel consists of two components:
a performance prong and a prejudice prong. To satisfy
the performance prong . . . the petitioner must dem-
onstrate that his attorney’s representation was not rea-
sonably competent or within the range of competence
displayed by lawyers with ordinary training and skill
in the criminal law.’’ (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).
‘‘Pretrial negotiations implicating the decision of
whether to plead guilty is a critical stage in criminal
proceedings . . . .’’ (Internal quotation marks omit-
ted.) Id. ‘‘[P]lea bargaining is an integral component of
the criminal justice system and essential to the expedi-
tious and fair administration of our courts. . . . Com-
mentators have estimated that between 80 and 90
percent of criminal cases in Connecticut result in guilty
pleas, the majority of which are the product of plea
bargains. . . . Thus, almost every criminal defendant
is faced with the crucial decision of whether to plead
guilty or proceed to trial. Although this decision is ulti-
mately made by the defendant, the defendant’s attorney
must make an informed evaluation of the options and
determine which alternative will offer the defendant
the most favorable outcome. A defendant relies heavily
upon counsel’s independent evaluation of the charges
and defenses, applicable law, the evidence and the risks
and probable outcome of a trial.’’ (Emphasis in original;
internal quotation marks omitted.) Ebron v. Commis-
sioner of Correction, 120 Conn. App. 560, 572, 992 A.2d
1200 (2010), rev’d in part on other grounds, 307 Conn.
342, 53 A.3d 983 (2012), cert. denied sub nom. Arnone
v. Ebron, U.S. , 133 S. Ct. 1726, 185 L. Ed. 2d
802 (2013).
‘‘To show prejudice from ineffective assistance of
counsel where a plea offer has lapsed or been rejected
because of counsel’s deficient performance, defendants
must demonstrate a reasonable probability they would
have accepted the earlier plea offer had they been
afforded effective assistance of counsel. Defendants
must also demonstrate a reasonable probability the plea
would have been entered without the prosecution can-
celing it or the trial court refusing to accept it, if they
had the authority to exercise that discretion under state
law. To establish prejudice in this instance, it is neces-
sary to show a reasonable probability that the end result
of the criminal process would have been more favorable
by reason of a plea to a lesser charge or a sentence of
less prison time. . . . To prevail on a claim of ineffec-
tive assistance of counsel, both prongs of the Strickland
test must be satisfied.’’ (Citations omitted; internal quo-
tation marks omitted.) Mahon v. Commissioner of Cor-
rection, supra, 157 Conn. App. 253–54, quoting Missouri
v. Frye, U.S. , 132 S. Ct. 1399, 1409, 182 L. Ed.
2d 379 (2012); see also Ebron v. Commissioner of Cor-
rection, 307 Conn. 342, 357, 53 A.3d 983 (2012) (to
show prejudice in rejected plea case, petitioner must
establish: ‘‘[1] it is reasonably probable that, if not for
counsel’s deficient performance, 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, U.S. , 133 S. Ct. 1726,
185 L. Ed. 2d 802 (2013).
1
In his challenge to the habeas court’s conclusion as
to Berke’s performance, the petitioner contends that
Berke’s failure to provide the petitioner his professional
advice, assistance and opinion on the petitioner’s best
course of action concerning the state’s plea offer fell
below an objective standard of reasonableness and,
thus, constituted deficient performance under the first
prong of the Strickland test. We agree.
In focusing on the performance prong, we are guided
by our case law, which provides that ‘‘[i]n any case
presenting an ineffectiveness claim, the performance
inquiry must be whether counsel’s assistance was rea-
sonable considering all the circumstances. . . . Judi-
cial 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 unsuc-
cessful, to conclude that a particular act or omission
of counsel was unreasonable . . . . Because of the dif-
ficulties 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; that is, the defendant must overcome the
presumption that, under the circumstances, the chal-
lenged action might be considered sound trial strategy.’’
(Internal quotation marks omitted.) Helmedach v. Com-
missioner of Correction, 168 Conn. App. 439, 453,
A.3d (2016).
The petitioner bore the burden of presenting suffi-
cient evidence to establish that Berke’s actions consti-
tuted deficient performance. In order to establish that
Berke’s performance was deficient, the petitioner was
required to overcome the presumption that Berke’s con-
duct was reasonable. See Moye v. Commissioner of
Correction, supra, 168 Conn. App. 218. In determining
what is reasonable, we are guided by ‘‘[p]revailing
norms of practice as reflected in American Bar Associa-
tion standards and the like . . . .’’ (Internal quotation
marks omitted.) Gaines v. Commissioner of Correc-
tion, 306 Conn. 664, 679, 51 A.3d 948 (2012), quoting
Strickland v. Washington, supra, 466 U.S. 688.
This court has recently stated that counsel performs
effectively and reasonably when he or she provides a
petitioner with adequate information and advice upon
which the petitioner can make an informed decision as
to whether to accept the state’s plea offer. See Melendez
v. Commissioner of Correction, supra, 151 Conn. App.
359. We are mindful that ‘‘[c]ounsel’s conclusion 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 . . . .’’
(Internal quotation marks omitted.) Barlow v. Commis-
sioner of Correction, 150 Conn. App. 781, 795, 93 A.3d
165 (2014). Accordingly, ‘‘[t]he need for recommenda-
tion depends on countless factors, such as the defen-
dant’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
innocence, and the defendant’s comprehension of the
various factors that will inform [his] plea decision.’’
(Internal quotation marks omitted.) Id.In denying the petitioner’s claim with respect to
Berke, the habeas court expressly concluded that
Berke’s representation was not controlled by our deci-
sion in Barlow. The habeas court explained: ‘‘[B]ased
upon the facts that have been produced in this trial,
[Berke] does not fit within the specific boundaries of
Barlow . . . . [Berke] did not simply act as a conduit.
[Berke] did go further. Later on in 2014, and Barlow is
a 2014 case—later on in 2014, the case of Melendez v.
Commissioner, 151 Conn. App. 351, reaches a contrary
conclusion finding that the representation by counsel
for Mr. Melendez did pass constitutional muster. That
was a more detailed explanation in which the counsel
offered explanations, pros and cons, and a recommen-
dation.’’4 In addition, the court noted that ‘‘[i]t is clear
from all of the testimony that [Berke] did convey and
discuss the plea bargains with [the petitioner]. The
record is crystal clear that [the petitioner] protested
his innocence and always asserted that he wished to
proceed to trial. The court is convinced, based upon
the testimony of [Berke], the testimony at the first
habeas trial, that [Berke] did in fact adequately explain
the pretrial offer, discuss the case, discuss the maxi-
mum punishments, discuss the pros and cons of plead-
ing guilty or not guilty, but left, as he should have, the
final decision as to whether to accept or reject such
offer to [the petitioner]. . . . While it would appear
that [Berke’s] representation may be closer to that of
Barlow than it is Melendez, nevertheless, the court will
find that [Berke’s] representation was sufficiently
within that band of representation that will pass consti-
tutional muster.’’ We disagree.
In Barlow v. Commissioner of Correction, supra, 150
Conn. App. 789–90, 796–97, this court held that the
petitioner’s defense counsel had rendered deficient per-
formance in failing to advise the petitioner adequately
regarding the court’s plea offer. We noted that the peti-
tioner’s counsel had testified during the habeas trial
that she refrained from giving the petitioner any advice
as to the plea offer proposed by the trial court. Id., 801.
Counsel further had testified that she ‘‘merely gave [the
petitioner] the facts of the offer, [and] provid[ed] no
assistance or advice as [the petitioner] weighed his
options.’’ Id. We concluded that ‘‘[a]lthough we agree
with the habeas court that [counsel] had no obligation
in this case specifically to tell the petitioner whether
to take the court’s plea offer . . . [counsel did have]
an obligation to provide advice and assistance to the
petitioner regarding that plea offer, which, she admit-
tedly failed to do.’’ Id., 796–97. We reasoned that
‘‘[a]lthough the [petitioner] ultimately must decide
whether to accept a plea offer or proceed to trial, this
critical decision, which in many instances will affect a
[petitioner’s] liberty, should be made by a represented
[petitioner] with the adequate professional assistance,
advice, and input of his or her counsel.’’ (Emphasis
in original.) Id., 800. We further noted that ‘‘a crucial
component of counsel’s effective representation during
plea negotiations is giving professional advice to a
[petitioner]. . . . [C]ounsel should give the [petitioner]
his or her professional advice on the best course of
action given the facts of the particular case and the
potential total sentence exposure.’’ (Citations omitted;
emphasis in original.) Id., 799–800. Therefore, we con-
cluded that counsel’s ‘‘performance was deficient
because she did not give the petitioner her professional
advice and assistance concerning, and her evaluation
of, the court’s plea offer.’’ Id., 802.
In Barlow, the petitioner’s trial counsel testified that
she did not provide any advice to the petitioner con-
cerning the plea offer proposed by the court. Id., 801.
Similarly, in this case, Berke testified during the habeas
trial that it was his general practice never to advise his
client or give him advice as to whether he should accept
or reject a plea offer.5 As this court held in Barlow,
advising the petitioner on the strengths and weaknesses
of his case, alerting him to his potential exposure and
explaining to him the terms of the plea offer is insuffi-
cient; without the professional advice as to the best
course of action, such representation constitutes defi-
cient performance. Id., 800–802.
Although the petitioner maintained his innocence
during pretrial discussions with Berke, Berke had an
obligation to provide the petitioner his ‘‘professional
advice on the best course of action given the facts
of the particular case and the potential total sentence
exposure.’’ (Emphasis omitted.) Id., 800; see Cardoza v.
Rock, 731 F.3d 169, 178 (2d Cir. 2013) (‘‘defense counsel
have a constitutional duty to . . . advise their clients
on the crucial decision whether to accept a plea offer’’
[internal quotation marks omitted]); see also Vazquez
v. Commissioner of Correction, 123 Conn. App. 424,
437, 1 A.3d 1242 (2010) (stating that ‘‘[a] defense lawyer
in a criminal case has the duty to advise his client fully
on whether a particular plea to a charge appears to be
desirable’’ [emphasis added; internal quotation marks
omitted]), cert. denied, 302 Conn. 901, 23 A.3d 1241(2011).
The respondent, however, argues that Berke’s perfor-
mance was not deficient for failing to make a specific
recommendation as to whether the petitioner should
accept or reject the state’s plea offer because such a
recommendation was not required under Barlow.
Although we agree that Barlow did not establish a per
se rule obligating counsel to provide recommendations
regarding plea offers, we are not persuaded by the
respondent’s argument. Barlow set forth an obligation
for defense counsel to provide professional advice,
assistance and an ‘‘informed opinion as to what pleas
[to] enter’’ and to make ‘‘an informed evaluation of the
options and determine which alternative will offer the
[petitioner] the most favorable outcome.’’ (Internal quo-
tation marks omitted.) Barlow v. Commissioner of Cor-
rection, supra, 150 Conn. App. 798. We, therefore, read
Barlow to require counsel to provide the petitioner
his professional advice, assistance and opinion on the
petitioner’s best course of action concerning the state’s
plea offer. This, Berke admits, he did not do.
We note that in his argument that Berke’s perfor-
mance was not deficient pursuant to the standard set
forth in Barlow, the respondent relies on our decision
in Andrews v. Commissioner of Correction, 155 Conn.
App. 548, 110 A.3d 489, cert. denied, 316 Conn. 911, 112
A.3d 174 (2015). That reliance is misplaced.
In Andrews, the petitioner challenged the habeas
court’s finding that he failed to show that his trial coun-
sel was deficient.6 Id., 551. In support of his claim on
appeal, the petitioner relied on Barlow v. Commis-
sioner of Correction, supra, 150 Conn. App. 781. See
Andrews v. Commissioner of Correction, supra, 155
Conn. App. 553. This court, however, concluded that
because the facts in Andrews were distinguishable, the
petitioner’s reliance on Barlow was misplaced. Id. Spe-
cifically, we explained that ‘‘[u]nlike trial counsel in
Barlow, who provided no advice or assistance to her
client on the plea offer, trial counsel in the present case
explained to the petitioner the strengths and weak-
nesses of the state’s case, the charges he was facing,
and the maximum sentence he would be exposed to if
he was unsuccessful at trial. Trial counsel explained
that the petitioner would likely receive a significantly
higher sentence than twelve years if he was convicted
at trial, that he believed that the state had a strong case
against the petitioner, and that it would be a difficult
case to win because most of the witnesses were police
officers, and one of the police officers had sustained
permanent serious injury. Although trial counsel left
the ultimate decision of whether to accept or to reject
the offer to the petitioner, he provided the petitioner
with adequate professional advice on [his] options and
the best course of action, unlike trial counsel in Barlow,
given the facts of the case and the petitioner’s potential
total sentence exposure.’’ Id., 554–55.
Unlike counsel in Andrews, Berke did not provide
the petitioner with his opinion as to whether the state
would prevail at trial, nor did he provide advice on the
best course of action for the petitioner. This case is thus
distinguishable from Andrews, where defense counsel
explained to the petitioner that in his professional opin-
ion the state had a strong case against the petitioner.
See id. Here, the extent of Berke’s advice concerning
the plea offer was to discuss with the petitioner the
specific strengths and weaknesses of the state’s case.
This is distinguishable from the facts in Andrews where
defense counsel provided detailed advice on the peti-
tioner’s options and best course of action. See id. There-
fore, we reject the respondent’s argument that Andrews
v. Commissioner of Correction, supra, 155 Conn. App.
554–55, compels us to reach a different conclusion.
For the foregoing reasons, we conclude that this case
falls within the reasoning of Barlow, and, therefore,
contrary to the conclusion of the habeas court, Berke’s
failure to provide the petitioner his professional advice,
assistance and opinion on the petitioner’s best course
of action concerning the state’s plea offer constituted
deficient performance under the first prong of
Strickland.
2
Having concluded that Berke’s performance concern-
ing the state’s plea offer was deficient, we turn now
to the prejudice prong of Strickland. The petitioner
contends that the court did not provide any factual or
legal basis for its ‘‘belief’’ that the petitioner failed to
meet his burden of establishing that he was prejudiced
by Berke’s deficient performance. We disagree.
The following legal principles are relevant to our
resolution of this claim. In order to show prejudice
stemming from a petitioner’s rejection of a plea bargain
due to ineffective assistance of counsel, ‘‘a petitioner
need establish only that (1) it is reasonably probable
that, if not for counsel’s deficient performance, the peti-
tioner 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.’’ Ebron
v. Commissioner of Correction, supra, 307 Conn. 357.
‘‘A reasonable probability is a probability sufficient to
undermine confidence in the outcome. . . . In a
habeas corpus proceeding, the petitioner’s burden of
proving that a fundamental unfairness had been done
is not met by speculation . . . but by demonstrable
realities.’’ (Citation omitted; internal quotation marks
omitted.) Taft v. Commissioner of Correction, 159
Conn. App. 537, 553–54, 124 A.3d 1, cert. denied, 320
Conn. 910, 128 A.3d 954 (2015). ‘‘If the habeas court
determined that . . . it is not reasonably probable that
the trial court would have imposed the sentence embod-
ied in the plea agreement, the prejudice prong has not
been satisfied.’’ Ebron v. Commissioner of Correction,
supra, 355–56.
Although the petitioner testified that he would have
accepted the state’s plea offer but for Berke’s deficient
performance, he has failed to establish, in accordance
with Ebron, that there was a reasonable probability that
the trial judge would have conditionally accepted the
state’s plea offer. With respect to this conclusion, we
find that the evidence adduced at the habeas trial pro-
vided both factual and legal support for the court’s
determination. In the habeas court’s decision, Judge
Fuger stated that ‘‘while I cannot categorically say yes
or no that such a plea bargain would have been
accepted, I can say that I do not believe the . . . peti-
tioner in this case has met his burden of proving with
a preponderance of the evidence that it is reasonably
probable that a court would have accepted the eight
year offer.’’ To support this finding, the court expressly
stated various factors, including that the petitioner had
‘‘a prior conviction for manslaughter for which he
served an eleven year sentence. Very shortly after serv-
ing that sentence, he was arrested for a shooting inci-
dent in which somebody was apparently severely
injured. [The petitioner] has other convictions [that]
involved a firearm.’’
The court also recognized ‘‘the difficulty of trying to
prove that [a court would have conditionally accepted
the state’s plea offer], particularly in a case such as this
where the identities of the particular judges apparently
are unknown.’’ Both our Supreme Court and this court
have considered the difficulty of trying to prove that
the trial court would have accepted the plea offer when
the identities of the judges are unknown and/or the
record does not provide sufficient evidence regarding
the trial court’s general practices. For example, in
Ebron v. Commissioner of Correction, supra, 307 Conn.
361, our Supreme Court recognized that ‘‘when there
is evidence that a particular judge had indicated that he
would have conditionally accepted the plea agreement,
such evidence is probative on the question of what a
reasonable court would have done. We further conclude
that such evidence is sufficient to prove prejudice in
the absence of any evidence that the particular judge’s
practice deviated significantly from the normal practice
or that the particular sentence would have been an
outlier. Because there was no such evidence in the
present case, we conclude that the factual finding that
[the trial judge] would have conditionally accepted the
plea agreement was sufficient to establish prejudice.’’
Id. In addition, in Lewis v. Commissioner of Correction,
supra, 165 Conn. App. 454, this court held that the
petitioner failed to establish prejudice because there
was ‘‘no evidence in the record that the trial court would
have accepted [the] plea agreement . . . .’’ It then
explained that ‘‘[t]o hold otherwise on the record before
us would amount to pure speculation, in which we
decline to engage.’’ Id.In accordance with the legal principles pertaining to
the prejudice prong of Strickland, as set forth in Ebron
and Lewis, the record before us does not reveal the
identity of the trial judge who would have been pre-
sented with the plea offer or whether there was a rea-
sonable probability that a trial judge would have
conditionally accepted the state’s plea offer. The facts
therefore are distinguishable from those in Ebron,
where the record revealed the identity of the trial judge
to whom the plea would have been presented and evi-
dence that the trial judge would have conditionally
accepted the plea. Ebron v. Commissioner of Correc-
tion, supra, 307 Conn. 346 n.1. Specifically, in Ebron,
the prosecutor ‘‘testified at the habeas proceeding that
[the trial judge] thought [that] the state’s [plea] offer
was appropriate and that she would not be adjusting
it, lowering it or changing it. When asked if [the prosecu-
tor] had any reason to believe that [the trial judge]
would not have imposed the agreed on sentence if the
petitioner had accepted the plea offer, [the prosecutor]
stated that [the trial judge] was a quite experienced
judge, and that she would have indicated that the plea
offer was too high or too low if she did not intend to
accept it. Accordingly, [the prosecutor] believed that
[the trial judge] would have imposed [the agreed on
sentence].’’ (Internal quotation marks omitted.) Id.Contrary to the facts of Ebron, here, the only evidence
in the record pertaining to whether the trial judge would
have conditionally accepted the plea offer was Berke’s
testimony describing the plea offer as reasonable. We
note that Berke was very hesitant to make such a defini-
tive statement concerning the reasonableness of the
plea offer. Further, Berke admitted that he did not know
whether a trial judge would have accepted the state’s
plea offer, given the facts of this case.7 Even with
Berke’s testimony, the habeas court determined that,
due to the paucity of evidence, it could not find that
the petitioner established that there was a reasonable
probability that the trial judge would have conditionally
accepted the plea offer.
We emphasize that ‘‘the petitioner’s burden of proving
that a fundamental unfairness has been done is not met
by speculation . . . but by demonstrable realities.’’
(Citations omitted; internal quotation marks omitted.)
Taft v. Commissioner of Correction, supra, 159 Conn.
App. 553–54. The petitioner’s failure to satisfy his bur-
den of establishing that there was a reasonable probabil-
ity that the trial judge would have conditionally
accepted the state’s plea offer is fatal to this claim. See
Henderson v. Commissioner of Correction, 129 Conn.
App. 188, 196, 19 A.3d 705, cert. denied, 303 Conn. 901,
31 A.3d 1177 (2011). Under the circumstances of this
case, the petitioner has not demonstrated prejudice
because he failed to provide sufficient evidence to sup-
port his claim that there was a reasonable probability
that the trial judge would have conditionally accepted
the plea offer. See Lewis v. Commissioner of Correc-
tion, supra, 165 Conn. App. 454.
We thus conclude that the petitioner failed to demon-
strate that his claim of ineffective assistance of counsel
with respect to Berke’s representation pertaining to the
state’s plea offer involved issues that are debatable
amongst jurists of reason, that a court could resolve
the issue in a different manner, or that the issue is
adequate to deserve encouragement to proceed further.
Therefore, we conclude that the habeas court did not
abuse its discretion in denying the petition for certifica-
tion to appeal as to this claim. See Bozelko v. Commis-
sioner of Correction, supra, 162 Conn. App. 729–30.
B
The petitioner next claims that the court abused its
discretion in denying his petition for certification to
appeal because the court erred in finding that Berke’s
alleged failure to advise the petitioner on accessorial
liability did not constitute ineffective assistance.8 Spe-
cifically, the petitioner argues that Berke had a duty
to conduct an independent investigation of the facts,
evidence and law in determining which theory he would
rely on to defend the petitioner if he proceeded to trial
and to inform the petitioner of the ways he could be
convicted and sentenced, including as an accessory to
the crimes at issue. We disagree.
As enunciated in our well established case law, ‘‘the
United States Supreme Court [has] determined that
[ineffective assistance of counsel claims pertaining to
counsel’s obligation to investigate the facts and legal
principles of each case] must be supported by evidence
establishing that . . . counsel’s representation fell
below an objective standard of reasonableness, and
. . . 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.’’
(Emphasis omitted; internal quotation marks omitted.)
Lapointe v. Commissioner of Correction, 113 Conn.
App. 378, 393–94, 966 A.2d 780 (2009). ‘‘An ineffective
assistance of counsel claim will succeed only if both
prongs [of Strickland] are satisfied.’’ (Internal quotation
marks omitted.) Bozelko v. Commissioner of Correc-
tion, supra, 162 Conn. App. 722–23. Accordingly, in
addressing this claim we focus on the performance
prong of the Strickland test.
‘‘While it is incumbent on a trial counsel to conduct a
prompt investigation of the case and explore all avenues
leading to facts relevant to the merits of the case and
the penalty in the event of conviction . . . counsel
need not track down each and every lead or personally
investigate every evidentiary possibility.’’ (Internal quo-
tation marks omitted.) Edwards v. Commissioner of
Correction, 87 Conn. App. 517, 525–26, 865 A.2d 1231(2005). ‘‘In other words, counsel has a duty to make
reasonable investigations or to make a reasonable deci-
sion that makes particular investigations unnecessary.’’
(Internal quotation marks omitted.) Taft v. Commis-
sioner of Correction, supra, 159 Conn. App. 547. ‘‘In a
habeas corpus proceeding, the petitioner’s burden of
proving that a fundamental unfairness had been done
is not met by speculation, but by demonstrable realities.
. . . One cannot successfully attack, with the advan-
tage of hindsight, a trial counsel’s trial choices and
strategies that otherwise constitutionally comport with
the standards of competence. . . . Because this court
is constrained to evaluating demonstrable realities, we
will not engage in mere speculation.’’ (Citation omitted;
internal quotation marks omitted.) Edwards v. Com-
missioner of Correction, supra, 526. ‘‘[A] court must
indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance; that is, the [petitioner] must overcome the
presumption that, under the circumstances, the chal-
lenged action might be considered sound trial strategy.’’
(Internal quotation marks omitted.) Moye v. Commis-
sioner of Correction, supra, 168 Conn. App. 218.
The following additional facts, as set forth by the
habeas court, are relevant to this claim. In its decision,
the court stated: ‘‘It was the state’s theory at trial that
[the petitioner] was the person who did the shooting
based upon statements of eyewitnesses. Based upon
the testimony of [the petitioner at the habeas trial], he
[was] not the person who did the shooting. He [was],
in fact, the driver of the car. Unfortunately, [the peti-
tioner] did not properly communicate these facts to
[Berke].’’ In light of this, the court concluded that
‘‘Berke proceeded on the belief that his client was not
involved in this shooting, and the reason why [Berke]
was under that misapprehension [was] not because he
failed to investigate, not because he was ineffective,
it was because he trusted that his client, under the
protection of attorney-client privilege, was going to tell
him the truth, and he did not. As a result, [Berke] went
into this process with a client who had lied to him,
whose story was not inconsistent with his adamant
assertion of innocence, and who made it clear that in
no way, shape or form did he intend to take a plea
bargain, that he wanted to go to trial and have his day
in court.’’
We agree with the habeas court and are not persuaded
that the petitioner met his burden of establishing that
Berke’s performance pertaining to accessorial liability
was deficient. The authority cited in the respondent’s
brief, namely, Crawford v. Commissioner of Correc-
tion, 285 Conn. 585, 940 A.2d 789 (2008), supports the
respondent’s assertion that the petitioner did not estab-
lish that Berke’s advice and investigation concerning
accessorial liability was deficient.
In Crawford, our Supreme Court concluded that the
habeas court properly denied the petitioner’s ineffective
assistance of counsel claim for failure to investigate
‘‘[b]ecause the petitioner did not admit until just before
jury selection that he had been the driver of the vehicle
. . . .’’ Id., 599. Our Supreme Court further concluded
that ‘‘[the petitioner’s] trial counsel’s attempt to develop
a defense relating to misidentification was reasonable
in light of the petitioner’s insistence that he had not
been the driver of the vehicle.’’ Id., 599–600. The facts
in Crawford are analogous to those in the present case,
where the petitioner failed to communicate to Berke
that he was ‘‘driving the vehicle when [the victim] was
shot . . . [t]hat [he] drove the shooter to the location
. . . [he was] aware that [he was] driving the shooter
to the location for the purpose of the shooter shooting
[the victim]’’ and therefore ‘‘Berke proceeded on the
belief that the petitioner was not involved in this shoot-
ing . . . .’’ Here, as in Crawford, the petitioner contin-
ued to claim that he was innocent throughout the
discussions, the trial and sentencing, and it was not until
after the petitioner was sentenced that Berke received a
communication from the petitioner that was inconsis-
tent with the prior information. In addition, the evidence
at the habeas trial established only that Berke could
not recall whether he had discussed accessorial liability
with the petitioner.
As defense counsel is presumed to have rendered
adequate assistance unless deficient performance is
affirmatively proven, the petitioner in the present case
has failed to rebut this strong presumption with credible
evidence. See Sanders v. Commissioner of Correction,
83 Conn. App. 543, 551, 851 A.2d 313, cert. denied, 271
Conn. 914, 859 A.2d 569 (2004). Because the petitioner
failed to establish that Berke rendered deficient perfor-
mance, his ineffective assistance of counsel claim fails.
We thus conclude that the petitioner failed to demon-
strate that his claim of ineffective assistance of counsel
with respect to Berke’s performance pertaining to
accessorial liability involved issues that are debatable
amongst jurists of reason, that a court could resolve
the issue in a different manner, or that the issue is
adequate to deserve encouragement to proceed further.
We, therefore, further conclude that the habeas court
did not abuse its discretion in denying the petition for
certification to appeal with respect to this claim.
II
The petitioner finally claims that the habeas court
abused its discretion in denying his petition for certifica-
tion to appeal because it improperly denied his claim
of ineffective assistance of counsel with respect to
DeSantis’ performance during the first habeas trial. As
previously noted, to determine whether the habeas
court abused its discretion in denying the petition for
certification to appeal, this court will look at the under-
lying merits of the petitioner’s claims. See Bozelko v.
Commissioner of Correction, supra, 162 Conn. App.
721. As set forth in count one of the operative petition,
the only allegation of deficient performance as to
DeSantis is his failure to raise the issue of Berke’s
ineffective assistance during the plea process. There-
fore, the sole claim on appeal against DeSantis is the
petitioner’s allegation that he provided ineffective assis-
tance of counsel during the petitioner’s first habeas
trial, by failing to raise the issue of the ineffective assis-
tance of Berke.
When a petitioner challenges the habeas court’s
denial of his operative petition on the basis of ineffec-
tive assistance of both his first habeas counsel and
his criminal defense counsel, the petitioner must prove
both that (1) his habeas counsel was ineffective and
(2) his criminal defense counsel was ineffective.
Lapointe v. Commissioner of Correction, supra, 113
Conn. App. 394. Therefore, we are ‘‘mindful that the
petitioner’s [claim] related to his habeas counsel must
fail if [his] claims of ineffective assistance of [his crimi-
nal defense] counsel are unavailing.’’ Id., 395.
As we previously concluded in part I of this opinion,
the petitioner failed to establish his claim of ineffective
assistance of Berke. Therefore, the petitioner cannot
establish that DeSantis’ performance was deficient in
failing to raise the claim of ineffective assistance as to
Berke in the petitioner’s first habeas corpus proceeding
because the petitioner did not establish the underlying
claim on which that claim is predicated, i.e., that Berke’s
representation constituted ineffective assistance.
We thus conclude that the petitioner failed to demon-
strate that his claim of ineffective assistance of counsel
with respect to DeSantis involved issues that are debat-
able amongst jurists of reason, that a court could
resolve the issue in a different manner, or that the
issue is adequate to deserve encouragement to proceed
further. We, therefore, conclude that the habeas court
did not abuse its discretion in denying the petition for
certification to appeal with respect to this claim.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The petitioner filed his first habeas petition alleging ineffective assistance
of his defense counsel, Robert Berke, concerning Berke’s failure to file a
‘‘motion to suppress suggestive identification of prosecution’s chief witness’’
and claiming that the communication between Berke and the petitioner fell
below the standard of what a reasonable attorney would have exercised
under similar circumstances. Following a trial, the habeas court denied the
petition. The petitioner appealed from that denial, and we dismissed the
appeal. Sanders v. Commissioner of Correction, 118 Conn. App. 905, 984
A.2d 122 (2009). On August 2, 2010, the petitioner filed a second habeas
petition, but that was withdrawn on November 6, 2012.
2
The petitioner also claims that his state and federal rights to due process
of law were violated when Berke failed to properly advise him concerning
the plea offer and accessory liability, and when DeSantis failed to raise the
issue of ineffective assistance of counsel concerning Berke’s performance.
In turn, the respondent, the Commissioner of Correction, in relying on Davis
v. Commissioner of Correction, 160 Conn. App. 444, 455–56, 124 A.3d 992,
cert. denied, 319 Conn. 957, 125 A.3d 1012 (2015), contends that the petition-
er’s due process claim is unreviewable because the habeas court neither
considered nor ruled on the merits of that claim and the petitioner failed
to obtain a ruling on it. See id. (declining to review claim when habeas
court neither considered nor ruled on it and petitioner failed to alert the
habeas court that ruling was inaccurate or incomplete). In the alternative,
the respondent further argues that the petitioner also cannot obtain [review
under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as
modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015)] of
this unpreserved constitutional claim because it arises out of the criminal
trial proceedings, and not the acts or omissions of the habeas court. See
Mozell v. Commissioner of Correction, 291 Conn. 62, 67 n.2, 967 A.2d 41(2009) (Golding review available only where petitioner challenges actions
of habeas court). We agree with the respondent.
We also are not persuaded by the petitioner’s argument that his due
process claim should be reversed pursuant to the plain error doctrine;
see Practice Book § 60-5; or this court’s supervisory authority over the
administration of justice. See Lacks v. Commissioner of Correction, 87
Conn. App. 225, 234, 866 A.2d 660, cert. denied, 273 Conn. 922, 871 A.2d
1027 (2005). We disagree.
Pursuant to our case law, a habeas petitioner cannot establish that the
court abused its discretion in denying certification on issues not raised in
the petition for certification to appeal. Kowalyshyn v. Commissioner of
Correction, 155 Conn. App. 384, 389, 109 A.3d 963, cert. denied, 316 Conn.
909, 111 A.3d 883 (2015). Accordingly, as the petitioner’s due process claim
was raised in count two of his operative petition, the record does not provide
any evidence that the habeas court determined and ruled on this claim. The
petitioner stated his grounds for his request for certification to appeal as
follows: ‘‘Whether [the] habeas court erred when it found that trial counsel
was not ineffective when he discussed the strengths [and] weaknesses of
the state’s case but did not advise the petitioner whether he should accept
or reject the state’s plea offer . . . [and] such other claims of error found
after a complete review of the record.’’ Therefore, ‘‘[b]ecause the petitioner
failed to raise [his due process claim] in his petition for certification’’ to
appeal; Kowalyshyn v. Commissioner of Correction, supra, 391; we decline
to afford it review.
3
The petitioner also stated as a ground for appeal: ‘‘Such other claims of
error found after a complete review of the record.’’ This claim, however, is
meaningless because it does not provide the trial judge with notice. ‘‘It is
well established that [w]e do not entertain claims not raised before the
habeas court but raised for the first time on appeal. . . . The purpose of
the [petition] is to put the [respondent, the Commissioner of Correction]
on notice of the claims made, to limit the issues to be decided, and to
prevent surprise.’’ (Citation omitted; internal quotation marks omitted.) Han-
kerson v. Commissioner of Correction, 150 Conn. App. 362, 369, 90 A.3d
368, cert. denied, 314 Conn. 919, 100 A.3d 852 (2014).
4
In Melendez v. Commissioner of Correction, supra, 151 Conn. App. 359,
this court concluded that counsel effectively and reasonably ‘‘provided the
petitioner with adequate information and advice upon which the petitioner
could make an informed decision as to whether he should accept the state’s
initial five year plea offer.’’ With respect to this conclusion, this court noted
that counsel specifically advised the petitioner to accept the plea offer. Id.5
As found by the first habeas court, ‘‘the petitioner and [Berke] agree
that [Berke] did not recommend specifically the taking of any plea bargain.
. . . Indeed, [Berke] did not recall the specifics of a plea, but that it was
his custom, and in this instance he did not recommend the taking of a plea
and that it was not his custom to recommend pleas one way or the other
but to leave the decision to the client.’’
During the habeas proceeding before Judge Fuger, the following exchange
occurred between the petitioner’s counsel and Berke:
‘‘Q. [A]nd is—is it your practice to advise the client or give him advice
as to whether or not he thinks it’s a good idea to take an offer or a bad
idea to take an offer?
‘‘A. I never do.
‘‘Q. Okay. And could you explain to the court why you do that?
‘‘A. I present them the positive, the negatives of going to trial . . . the
risks of trial, the maximum exposure. I don’t present my opinion on whether
they should take an offer or not. That’s their decision. I’ve always maintained
that that was their decision and not mine. I don’t influence clients on what
decision they make. I do—I do present them, at least from a legal and factual
opinion, the strengths and weaknesses of their case . . . by defense. . . .
‘‘Q. But your job is to give them professional legal advice as to whether
or not they should take the plea or whether or not they should go to trial.
‘‘A. I don’t tell clients to take the plea.’’
6
In the habeas petition, the petitioner in Andrews claimed that ‘‘his trial
counsel provided ineffective assistance by failing to recommend that he
accept the plea offered by the trial court . . . .’’ Andrews v. Commissioner
of Correction, supra, 155 Conn. App. 550. The habeas court, however, found
that the petitioner failed to show that his trial counsel’s advice was deficient.
Id., 551.
7
In addition, the testimony during the first habeas trial provides further
insight into whether it was reasonably probable that such a plea offer would
have been conditionally accepted, as Berke testified that he could not recall
the exact details of the state’s plea offer and that ‘‘the issue of being a
persistent offender [did] not come up until well into the game, the initial
discussions and the pleas discussions did not include any reference that
the state was going to charge him as a persistent offender.’’
8
In the operative petition, the petitioner made no explicit claim of ineffec-
tive assistance of counsel as to accessorial liability, which he now raises
on appeal.