Freitag v. Commissioner of Correction ( 2021 )

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KYLE FREITAG v. COMMISSIONER
OF CORRECTION
(AC 42818)
Bright, C. J., and Moll and Suarez, Js.
Syllabus
The petitioner, who had been convicted, on pleas of guilty, of the crimes
of murder and assault in the first degree, appealed to this court from
the judgment of the habeas court denying his petition for a writ of habeas
corpus. The petitioner claimed that O, the attorney who represented
him during the plea proceeding, rendered ineffective assistance, as did
P, the attorney who represented him during the sentencing proceeding.
The petitioner alleged that O failed to properly advise him regarding
potential defenses and made misrepresentations to him about the willing-
ness of a codefendant, B, to testify at the petitioner’s criminal trial. The
petitioner further alleged that P failed to present adequate mitigation
evidence at the sentencing proceeding and failed to file a motion to
withdraw the guilty pleas, pursuant to the applicable rule of practice
(§ 39-27 (4)), on the basis of O’s ineffective assistance. The petitioner
testified at the habeas trial that O had met with and told him and his
parents on the day of the plea proceeding that he had been informed
by B’s counsel that B was not willing to testify at the petitioner’s criminal
trial. The petitioner further testified that, until that meeting, he was
under the impression that B was going to testify. The petitioner then
appeared before the trial court for the plea proceeding and initially
rejected a plea offer. The petitioner then changed his mind during the
court’s canvass of him and entered his guilty pleas, as it was his under-
standing that this was his final opportunity to accept the plea offer.
Prior to the sentencing proceeding, however, the petitioner learned from
his family that B was willing to testify. The habeas court, in determining
that O did not render deficient performance, rejected the petitioner’s
claim that O incorrectly advised him about whether B was willing to
testify. The court made an implicit factual finding that O had told the
petitioner it was not likely that B would testify and an express finding
that O’s assessment was reasonable. The habeas court further deter-
mined that its conclusion as to the petitioner’s claims against O fore-
closed the petitioner’s claim that P improperly failed to file a motion
to withdraw the guilty pleas. The court reasoned that the petitioner
failed to present credible evidence that his pleas were made unwillingly
or involuntarily and determined that P made a reasonable decision not
to file a motion to withdraw the guilty pleas because the state had
insisted that the petitioner plead guilty to the murder charge. The habeas
court thereafter granted the petitioner certification to appeal. Held:
1. The habeas court’s implicit finding that O told the petitioner during their
meeting on the day of the plea proceeding that it was not likely B would
testify at the criminal trial was clearly erroneous, and, thus, the judgment
had to be reversed and the case remanded for a new trial as to the
claim that O rendered ineffective assistance in connection with his
purported misrepresentation about B:
a. There was no evidence to support the habeas court’s finding, the
petitioner and his father having testified that O, in absolute terms, told
them B would not testify, and O having testified that he did not recall
any discussion during the meeting about B’s willingness to testify and
that he did not recall ever having told the petitioner that B would not
testify created a dispute as to that factual issue, and this court could
not discern whether the habeas court would have credited the testimony
of the petitioner and his father in the absence of the habeas court’s clearly
erroneous finding; moreover, contrary to the request by the respondent
Commissioner of Correction, because this court made no conclusion as
to whether O rendered deficient performance, a remand for further
proceedings to address the issue of prejudice was not proper.
b. Because the habeas court committed error with respect to the petition-
er’s principal claim that O made misrepresentations to him as to B’s
willingness to testify, the judgment also had to be reversed as to the
petitioner’s intertwined claim that O rendered ineffective assistance in
failing to properly advise him as to potential defenses.
2. The habeas court’s judgment as to the petitioner’s claims of ineffective
assistance of counsel as to P had to be reversed in part and the case
remanded for a new trial on the claim that P was ineffective in failing
to file a motion to withdraw the guilty pleas pursuant to § 37-27 (4):
a. Because this court reversed the habeas court’s judgment as to certain
of the petitioner’s ineffective assistance of counsel claims against O, the
habeas court’s denial of the petitioner’s claim that P rendered ineffective
assistance in failing to file a motion to withdraw the guilty pleas could
not stand; certain of the habeas court’s determinations in rejecting the
claim as to P were untenable, and its reasoning that P made a strategic
decision not to seek withdrawal of the pleas was irrelevant, as the
purpose of seeking withdrawal of the guilty pleas was not to negotiate
a better plea deal but to insist on going to trial.
b. The habeas court properly concluded that the petitioner did not demon-
strate that P rendered ineffective assistance as a result of his failure to
present adequate mitigation evidence at sentencing; the record reflected
that P submitted ample mitigation evidence, which the sentencing court
took into consideration, and the petitioner did not identify any informa-
tion P failed to present that would have made it reasonably probable
that the sentencing court would have imposed a lesser sentence.
Argued October 19, 2020—officially released November 9, 2021
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, Newson, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Reversed in part; new trial.
Deren Manasevit, assigned counsel, with whom, on
the brief, was Peter Tsimbidaros, assigned counsel, for
the appellant (petitioner).
Brett R. Aiello, deputy assistant state’s attorney, with
whom, on the brief, were Joseph Valdes, senior assistant
state’s attorney, and Jo Anne Sulik, supervisory assis-
tant state’s attorney, for the appellee (respondent).
Opinion
MOLL, J. The petitioner, Kyle Freitag, appeals, follow-
ing the granting of his petition for certification to
appeal, from the judgment of the habeas court denying
his amended petition for a writ of habeas corpus. On
appeal, the petitioner claims that the court erred in
denying (1) count one of the amended petition claiming
ineffective assistance of counsel against Attorney Fran-
cis O’Reilly, his trial counsel at the time of his guilty
pleas, and (2) count two of the amended petition claim-
ing ineffective assistance of counsel against Attorney
Norman A. Pattis, his trial counsel at the time of sen-
tencing. We reverse, in part, the judgment of the habeas
court and remand the case for a new habeas trial as to
certain claims raised in counts one and two of the
amended petition.
The following facts and procedural history, as set
forth in the habeas court’s corrected memorandum of
decision or as undisputed in the record, are relevant
to our resolution of this appeal. ‘‘The petitioner was
the defendant in three matters pending in the judicial
district of [Stamford-Norwalk] under docket numbers
CR-XX-XXXXXXX, where he was charged with various drug
charges, criminal possession of a handgun, and posses-
sion of a weapon in a motor vehicle; CR-XX-XXXXXXX,
the subject of the [underlying amended petition for a
writ of habeas corpus], where he was charged with
murder, attempted murder, two counts of assault [in
the] first degree, criminal possession of a handgun,
possession of a pistol without a permit, weapon in a
motor vehicle, and others; and CR-XX-XXXXXXX, where
he faced a relatively minor possession charge. . . . The
allegations in docket ending #383 were that the peti-
tioner and [his] codefendant, [Terrance] Baxter, were
driving in the petitioner’s minivan on Fort Point Road
in Norwalk on October 30, 2012. . . . Baxter was driv-
ing, and the petitioner was in the front passenger seat.
At some point, the van came upon a scooter being driven
in the same direction along the right-hand side of Fort
Point Road by a Dajon Johnson, with a Bancroft Daley
riding behind him as a passenger. The petitioner did
not know the driver but was familiar with . . . Daley
from prior interactions on the street. The two vehicles
rode in the same direction relatively near each other
for some period of time, when, according to one inde-
pendent witness, the van suddenly accelerated to pull
up alongside of the scooter. The petitioner’s claim as
to this portion of the incident is that the scooter was
behind his vehicle and sped up alongside. In any event,
when the van and the scooter were beside each other,
the petitioner claims to have seen [Daley] reaching
toward his waist area. The petitioner pulled out a .32
caliber pistol, reached out of the passenger window,
and shot both parties. . . . Baxter immediately sped
off, but the two were captured when the van was
stopped about ten minutes later on the highway.
According to [the] police, the petitioner made several
rather unrepentant statements while in custody about
shooting the victims because ‘it was me or them.’ . . .
Johnson died as a result of his gunshot wounds, and
. . . Daley was left paralyzed from the mid-back down.
The only weapon found in the possession of either
victim was a three inch folding knife that was apparently
found inside . . . Daley’s pocket.’’
Attorney Howard Ehring, a public defender, initially
appeared as the petitioner’s criminal defense counsel.
In November, 2014, O’Reilly, appointed as assigned
counsel, filed an appearance in lieu of Ehring.
‘‘All three [of the petitioner’s criminal] matters were
on the ‘firm jury’ list, and the [matter at issue] was
scheduled to begin trial, when the cases were called
on the docket [on] January 14, 2015. Following some
discussions, an offer involving guilty pleas to the mur-
der and assault [in the] first degree charges in exchange
for a judicially indicated sentence of a minimum of
[twenty-five] years to a maximum of [thirty years], fol-
lowed by [ten] years of special parole, with a right to
argue, was conveyed to the petitioner. That offer was
initially rejected by the petitioner, through [Attorney
O’Reilly], on the record. While the [trial] court was
explaining the withdrawal of the offer and its impact
on future negotiations, the petitioner changed his mind
and agreed to enter pleas of guilty to one count of
murder in violation of General Statutes § 53a-54a (a),
and one count of assault in the first degree in violation of
General Statutes § 53a-59 (a) (1). Following the canvass,
[the court accepted the pleas, and] the matter was con-
tinued to March 11, 2015, for sentencing. On February
[17, 2015], however, Attorney . . . Pattis filed an
appearance in lieu of Attorney O’Reilly. On April 7, 2015,
the petitioner appeared for sentencing represented by
Attorney Pattis, where, after hearing from all parties,
the court imposed a sentence of [thirty] years to serve,
followed by [ten] years of special parole on the murder
charge, and [twenty] years concurrent on the assault
charge, for a total effective sentence of [thirty] years,
followed by [ten] years of special parole.’’1 (Footnotes
omitted.)
On September 15, 2015, the petitioner, representing
himself, filed a petition for a writ of habeas corpus.
On April 9, 2018, after assigned habeas counsel had
appeared on his behalf, the petitioner filed his operative,
two count amended petition for a writ of habeas corpus
(amended petition). In count one of the amended peti-
tion, the petitioner asserted a claim of ineffective assis-
tance of counsel against O’Reilly, alleging, inter alia,
that O’Reilly had (1) incorrectly advised the petitioner
that his codefendant, Baxter, had refused, or would
refuse, to testify at his criminal trial, and (2) failed
to properly advise the petitioner regarding potential
defenses available to him.2 The petitioner further
alleged that, but for O’Reilly’s deficient performance,
he would not have pleaded guilty but, rather, would
have asserted his right to a trial. In count two of the
amended petition, the petitioner asserted a claim of
ineffective assistance of counsel against Pattis, alleging,
inter alia, that Pattis had failed (1) to present adequate
mitigation evidence at sentencing, and (2) to file a
motion to withdraw his guilty pleas predicated on the
ineffective assistance of counsel rendered by O’Reilly.3
The petitioner further alleged that, but for Pattis’ defi-
cient performance, it was reasonably probable that he
would have received a lesser sentence. On April 30,
2018, the respondent, the Commissioner of Correction,
filed a return, leaving the petitioner to his proof as to
his material allegations.
The matter was tried to the habeas court, Newson,
J., over the course of three days in July, August and
November, 2018.4 On February 26, 2019, the court issued
a corrected memorandum of decision5 denying both
counts of the amended petition. Thereafter, the peti-
tioner filed a petition for certification to appeal from
the judgment, which the court granted.6 This appeal
followed. Additional facts and procedural history will
be set forth as necessary.
I
The petitioner’s first claim is that the habeas court
improperly denied count one of the amended petition, in
which he claimed that O’Reilly had rendered ineffective
assistance of counsel. Specifically, the petitioner
asserts that the court incorrectly rejected his ineffective
assistance of counsel claim predicated on O’Reilly’s
alleged (1) misrepresentation to him about Baxter’s
willingness to testify at his criminal trial, and (2) failure
to properly advise him about the potential defenses
available to him. For the reasons that follow, we con-
clude that a new habeas trial is necessary as to these
claims.
We begin by setting forth the following relevant legal
principles and standard of review. ‘‘In a habeas appeal,
this court cannot disturb the underlying facts found by
the habeas court unless they are clearly erroneous, but
our review of whether the facts as found by the habeas
court constituted a violation of the petitioner’s constitu-
tional right to effective assistance of counsel is ple-
nary.’’ (Internal quotation marks omitted.) Humble v.
Commissioner of Correction, 180 Conn. App. 697, 703–
704, 184 A.3d 804, cert. denied, 330 Conn. 939, 195 A.3d
692 (2018).
‘‘The [long-standing] test for determining the validity
of a guilty plea is whether the plea represents a volun-
tary and intelligent choice among the alternative
courses of action open to the defendant. . . . Where
. . . a defendant is represented by counsel during the
plea process and enters his plea upon the advice of
counsel, the voluntariness of the plea depends on
whether counsel’s advice was within the range of com-
petence demanded of attorneys in criminal cases.’’
(Citation omitted; internal quotation marks omitted.)
Carraway v. Commissioner of Correction, 144 Conn.
App. 461, 471, 72 A.3d 426 (2013), appeal dismissed,
317 Conn. 594, 119 A.3d 1153 (2015). ‘‘[I]n order to
determine whether the petitioner has demonstrated
ineffective assistance of counsel [when the conviction
resulted from a guilty plea], we apply the two part
test enunciated by the United States Supreme Court in
Strickland [v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984)] and Hill [v. Lockhart,
474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)].
. . . In Strickland, which applies to claims of ineffec-
tive assistance during criminal proceedings generally,
the United States Supreme Court determined that the
claim must be supported by evidence establishing that
(1) counsel’s representation fell below an objective
standard of reasonableness, and (2) counsel’s deficient
performance prejudiced the defense because there was
a reasonable probability that the outcome of the pro-
ceedings would have been different had it not been for
the deficient performance. . . .
‘‘To satisfy the performance prong under Strickland-
Hill, the petitioner must show that counsel’s represen-
tation fell below an objective standard of reasonable-
ness. . . . A petitioner who accepts counsel’s advice
to plead guilty has the burden of demonstrating on
habeas appeal that the advice was not within the range
of competence demanded of attorneys in criminal
cases. . . . The range of competence demanded is rea-
sonably competent, or within the range of competence
displayed by lawyers with ordinary training and skill
in the criminal law. . . . Reasonably competent attor-
neys may advise their clients to plead guilty even if
defenses may exist. . . . A reviewing court must view
counsel’s conduct with a strong presumption that it
falls within the wide range of reasonable professional
assistance. . . .
‘‘To satisfy the prejudice prong [under Strickland-
Hill], the petitioner must show a reasonable probability
that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.’’ (Inter-
nal quotation marks omitted.) Humble v. Commissioner
of Correction, supra, 180 Conn. App. 704–705.
A
We first turn to the petitioner’s claim of ineffective
assistance of counsel predicated on O’Reilly’s pur-
ported misrepresentation to him regarding Baxter’s
willingness to testify at his criminal trial. The petitioner
contends that the evidence adduced at the habeas trial
established that, almost immediately before the peti-
tioner had entered his guilty pleas, O’Reilly misrepre-
sented to him that Baxter would not testify and that,
as a result of that misrepresentation, he entered guilty
pleas that were uninformed. We construe the essence
of the petitioner’s contention to be that the court, in
determining that O’Reilly’s performance was not defi-
cient, made a clearly erroneous implicit factual finding
that, prior to the petitioner pleading guilty, O’Reilly told
him that it was not likely that Baxter would testify.
We conclude that the court’s implicit factual finding is
clearly erroneous.
The following additional facts and procedural history
are relevant to our resolution of this claim. At the habeas
trial, the petitioner called the following witnesses: Bax-
ter; Donald Freitag, the petitioner’s father (petitioner’s
father); Ehring; O’Reilly; and Attorney Francis DiScala,
who was Baxter’s criminal defense counsel.
Baxter testified in relevant part as follows. On Octo-
ber 30, 2012, Baxter was driving the petitioner to the
petitioner’s place of employment. Before reaching their
destination, the petitioner noticed that Johnson and
Daley had started to follow them, at which point the
petitioner told Baxter to ‘‘get out [of] here’’ because
‘‘[they’re] coming . . . .’’ The petitioner appeared
‘‘scared’’ and ‘‘wasn’t himself.’’ Immediately before the
shooting, Johnson and Daley were positioned on their
scooter next to the passenger side of the petitioner’s
minivan, where the petitioner was seated, at which time
Daley pulled a hood over his head and began moving
his hand toward his waist. At that time, the petitioner
was screaming, ‘‘going crazy,’’ and stating that ‘‘they’re
following us, [t]hey’re trying to get me . . . .’’ The peti-
tioner then pulled out a gun and shot Johnson and
Daley, after which Baxter sped away from the scene.
Afterward, the petitioner conveyed to Baxter that he
had observed Daley reaching for a gun in his waistband.
The petitioner also expressed to Baxter that ‘‘these kids
. . . keep coming for me,’’ that he had ‘‘to go some-
where, [he had] to move or something,’’ and that he was
‘‘tired of these kids [who had] killed his friend . . . .’’7
Sometime before the petitioner had entered his guilty
pleas, Baxter, while he was in jail, met with O’Reilly,
DiScala, and a private investigator for the purpose of
‘‘getting things situated for the trial.’’ At some point in
time, DiScala advised Baxter of his fifth amendment
right against self-incrimination, but Baxter intended to
waive that right and to testify in support of the peti-
tioner.
The petitioner testified in relevant part as follows.
On October 30, 2012, while Baxter was driving him to
his place of employment, the petitioner noticed Johnson
and Daley following them on a scooter. The petitioner
believed Johnson and Daley to be members of a local
gang that the petitioner had encountered on prior occa-
sions.8 The petitioner instructed Baxter to drive past
his place of employment because he did not want John-
son and Daley to know where he worked. At that time,
the petitioner was feeling ‘‘all over the place because [he
was] wondering if [Johnson and Daley] were following
[him] to get [him] . . . .’’ Johnson and Daley eventually
maneuvered their scooter next to the passenger side
of the minivan where the petitioner was seated. The
petitioner noticed that Daley, who had a hood over his
head, was moving his hand toward his waistband for a
‘‘metal object.’’ Fearing that Daley was reaching for a
gun to shoot him, the petitioner retrieved his gun and
shot Johnson and Daley, after which Baxter sped away
from the scene.
On January 14, 2015, before appearing in front of the
trial court and entering his guilty pleas, the petitioner
met with his parents and O’Reilly at the courthouse
(January 14, 2015 meeting). During the January 14, 2015
meeting, O’Reilly told the petitioner that DiScala had
informed him that Baxter was not willing to testify at
the petitioner’s criminal trial. Until that disclosure, the
petitioner was under the impression that Baxter was
going to testify. The petitioner considered Baxter’s testi-
mony to be ‘‘more than important’’ and believed that
he ‘‘needed’’ Baxter’s testimony to support his defense.
Three minutes after being informed by O’Reilly that
Baxter would not be testifying, the petitioner appeared
before the trial court to either accept or reject the
plea offer. The petitioner’s understanding was that this
proceeding was his final opportunity to accept the plea
offer.9 Prior to January 14, 2015, and at the time he
appeared before the court, the petitioner had no inten-
tion of pleading guilty. After O’Reilly had informed the
court that the petitioner was rejecting the plea offer,
and as the petitioner was being canvassed by the court,
he changed his mind and decided to accept the offer.
As the petitioner explained: ‘‘[A]s the judge was [can-
vassing me], my mind’s bouncing all over the place. I
got teary eyed. I started to get emotional based off what
I just heard about my friend telling, you know, basically,
you know, not coming forth for me. And that completely
threw me off, and I just, I lost, I lost hope in that
moment. And I just—I didn’t know what [to] do.’’ After
entering his guilty pleas but before being sentenced,
the petitioner learned from his family that Baxter was,
in fact, willing to testify. Had he known that Baxter
was willing to testify, the petitioner would not have
pleaded guilty.
The petitioner’s father testified in relevant part as
follows. Prior to the January 14, 2015 meeting, the peti-
tioner’s father believed that Baxter would be a helpful
witness for the petitioner, that Baxter would testify at
the petitioner’s criminal trial, and that the petitioner
would insist on going to trial. During the January 14,
2015 meeting, however, O’Reilly conveyed that Baxter
would not be testifying. According to the petitioner’s
father, the disclosure by O’Reilly that ‘‘[o]ne of the main
witnesses [was] not going to testify’’ shocked and
scared the petitioner.
Ehring testified in relevant part as follows. As the
petitioner’s initial criminal defense counsel, Ehring’s
defense strategy was to claim either self-defense or
extreme emotional disturbance. During the course of
his investigation, Ehring met with Baxter and DiScala.
Ehring determined that Baxter’s testimony would be
helpful to the petitioner, as Baxter could bolster the
petitioner’s defense by testifying that the petitioner had
felt terrified and threatened by Johnson and Daley
immediately before the shooting. Ehring discussed with
the petitioner the import of Baxter’s prospective testi-
mony, which, according to Ehring, the petitioner
believed to be pivotal to his defense. Ehring also advised
the petitioner that, if called as a witness at the petition-
er’s criminal trial, Baxter could invoke his fifth amend-
ment right against self-incrimination and refuse to tes-
tify; however, on the basis of his conversations with
DiScala and others, Ehring was ‘‘pretty certain’’ that
Baxter would waive his fifth amendment right and elect
to testify. After O’Reilly had replaced Ehring as the
petitioner’s criminal defense counsel, Ehring told O’Re-
illy that Baxter was willing to testify in support of the
petitioner.
O’Reilly testified in relevant part as follows. After
replacing Ehring as the petitioner’s criminal defense
counsel, O’Reilly met with Baxter, DiScala, and a private
investigator at the jail where Baxter was being held ‘‘to
see if [Baxter] might be helpful.’’ O’Reilly did not recall
whether there was any discussion during that meeting
regarding Baxter’s willingness to testify at the petition-
er’s criminal trial; however, on the basis of the informa-
tion that he gathered at the meeting, O’Reilly did not
believe that Baxter’s testimony would be helpful to the
petitioner.
O’Reilly recalled the January 14, 2015 meeting, during
which the discussion was focused on ‘‘[the petitioner’s]
future and . . . what [O’Reilly] thought the end result
of going to trial would be and what [O’Reilly] thought
the best outcome [was] for [the petitioner] to take under
the circumstances.’’ O’Reilly did not remember speak-
ing specifically about Baxter during that meeting, and
O’Reilly did not recall ever telling the petitioner that
Baxter would not testify at his criminal trial. At the end
of the meeting, notwithstanding O’Reilly’s recommen-
dation that the petitioner accept the plea offer, the
petitioner expressed to O’Reilly that he wanted to
decline the plea offer and to proceed to trial. O’Reilly did
not recall whether the petitioner gave an explanation
for his subsequent decision to change his mind and to
accept the plea offer.
DiScala testified in relevant part as follows. As Bax-
ter’s criminal defense counsel, DiScala advised Baxter
that, if called as a witness at the petitioner’s criminal
trial, he could invoke his fifth amendment right against
self-incrimination and decline to testify. DiScala further
advised Baxter that the state would potentially with-
draw a favorable plea deal that had been offered to him
if he elected to testify.10 Nevertheless, DiScala believed
that Baxter was ‘‘always willing’’ to testify at the peti-
tioner’s criminal trial.
With regard to his communications with O’Reilly, DiS-
cala remembered meeting with Baxter, O’Reilly, and a
private investigator at the jail where Baxter was being
held in order for O’Reilly ‘‘to get a better understanding
of what Baxter would be testifying to.’’ DiScala did not
recall there being any discussion during that meeting
on the topic of Baxter’s willingness to testify at the
petitioner’s criminal trial. Additionally, DiScala did not
recall having a specific conversation with O’Reilly fol-
lowing that meeting regarding Baxter’s willingness to
testify; however, DiScala was adamant that he never
told O’Reilly that Baxter would not testify. DiScala spec-
ulated that he may have stated to O’Reilly either that
Baxter would ‘‘be crazy to testify’’ or that he would
recommend that Baxter invoke his fifth amendment
privilege and decline to testify, but he would not have
represented to O’Reilly that Baxter was not going to tes-
tify.
In its decision, the court found that O’Reilly had made
an ‘‘assessment that . . . Baxter was not going to be
available as [a] witness if the case went to trial.’’ The
court determined that there was ‘‘nothing unreasonable
or deficient in Attorney O’Reilly’s assessment . . . .
An attorney’s job is not to make perfect predictions
but to make educated ones based on the reasonable
possibilities. . . . All parties admit there was no defini-
tive conversation about whether . . . Baxter would
testify if called as a witness. Attorney O’Reilly believed
it was unlikely that . . . Baxter would not have
asserted his privilege against self-incrimination, given
[that] he had an open plea agreement with the state.
Even if . . . Baxter had expressed an overt willingness
to ‘help out,’ Attorney O’Reilly made an assessment that
his testimony would not have been particularly helpful,
so he wasn’t going to use him.’’ (Citation omitted.) Sub-
sequently in its decision, the court directly addressed
and rejected the petitioner’s claim that ‘‘Attorney O’Re-
illy ‘incorrectly advised’ him about whether . . . Bax-
ter was willing to testify on his behalf if called to testify
for the defense at trial.’’ The court stated that O’Reilly
did not need to be ‘‘ ‘correct’ in his assessments of
potential witnesses’’ but was ‘‘only required to make
a reasonable and educated assessment based on the
information before him. In the present case, after taking
the time to meet with [Baxter], Attorney O’Reilly made
an assessment that [Baxter] was not likely to testify for
the defense because [Baxter] had an open plea agree-
ment pending with the state. Given that, [Attorney O’Re-
illy] presumed that . . . Baxter would likely assert his
privilege against self-incrimination if [Attorney O’Reilly]
attempted to call [Baxter] to testify. Even if [Baxter]
did decide to testify, Attorney O’Reilly did not assess
that [Baxter’s] testimony would have been particularly
helpful. In the end, whether Attorney O’Reilly was, in
[hindsight], actually correct in his assessment of . . .
Baxter’s willingness to testify is not the question. . . .
[Attorney O’Reilly] made a reasoned assessment, given
the factors present before him at the time, and the court
finds nothing deficient about his conduct.’’ (Citation
omitted.)
The petitioner maintains that O’Reilly performed defi-
ciently during the January 14, 2015 meeting by misrepre-
senting to him, without reservation, that Baxter would
not testify at his criminal trial. The court, however, did
not find that O’Reilly conveyed to the petitioner, in
absolute terms, that Baxter was not going to testify;
rather, we read the court’s decision as including an
implicit factual finding that O’Reilly told the petitioner
that it was not likely that Baxter would testify, coupled
with an express finding that O’Reilly’s assessment was
reasonable. Thus, we construe the substance of the
petitioner’s contention to be that the court clearly erred
by implicitly finding that, during the January 14, 2015
meeting, O’Reilly conveyed to the petitioner that it was
not likely that Baxter would testify. We agree that the
court clearly erred in making this implicit finding.
Preliminarily, we make clear that the court’s express
finding that ‘‘[a]ll parties admit there was no definitive
conversation about whether . . . Baxter would testify
if called as a witness’’ is not germane to the issue before
us. Facially, this finding connotes that it was undisputed
that no definitive conversation ever occurred between
any individuals concerning Baxter’s willingness to tes-
tify. If so broadly construed, this finding would be
clearly erroneous in light of the testimony in the record,
as summarized previously in this part of the opinion,
plainly demonstrating that certain individuals, including
the petitioner and the petitioner’s father, maintained
that discussions regarding Baxter’s willingness to tes-
tify did occur. In his reply brief, however, the petitioner
clarifies that he is not challenging this finding as clearly
erroneous because, considered in context, this finding
refers only to communications between O’Reilly and
DiScala in relation to the meeting that they had with
Baxter while he was in jail. In other words, the peti-
tioner contends that this finding reasonably can be
interpreted to be that there was no dispute that no
definitive conversation happened between O’Reilly and
DiScala at that meeting regarding Baxter’s willingness
to testify. We agree. Limited in the manner posited by
the petitioner, this finding is supported by the record,
as both O’Reilly and DiScala testified that they did not
recall the subject of Baxter’s willingness to testify being
mentioned during that meeting.11 This finding is sepa-
rate and distinct from the implicit finding being chal-
lenged by the petitioner, that is, that O’Reilly conveyed
to the petitioner, during the January 14, 2015 meeting,
that Baxter was not likely to testify at his criminal trial.
We iterate that the finding at issue is an implicit
finding necessarily found by the court. In rejecting the
petitioner’s claim that O’Reilly performed deficiently
by ‘‘ ‘incorrectly advis[ing]’ ’’ him during the January 14,
2015 meeting about Baxter’s willingness to testify, the
court concluded that O’Reilly made a reasonable assess-
ment that Baxter ‘‘was not likely to testify for the
defense’’ because Baxter had an open plea agreement
pending with the state, and, thus, ‘‘Baxter would likely
assert his privilege against self-incrimination if [Attor-
ney O’Reilly] attempted to call [Baxter] to testify.’’
(Emphasis added.) Given that the crux of the petition-
er’s claim, as identified and rejected by the court, con-
cerned the information conveyed by O’Reilly to the
petitioner at the January 14, 2015 meeting, and that the
court found that O’Reilly’s assessment was that Baxter
‘‘was not likely’’ to testify and that Baxter ‘‘would likely’’
invoke his fifth amendment right against self-incrimina-
tion if called to testify, the only reasonable reading of
the court’s decision is that the court implicitly found
that, during the January 14, 2015 meeting, O’Reilly told
the petitioner that it was not likely that Baxter
would testify.
We now turn our attention to the merits of the peti-
tioner’s claim. We observe that ‘‘[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.) Charles v. Commissioner of Correc-
tion, 206 Conn. App. 341, 357, A.3d (2021),
petition for cert. filed (Conn. September 29, 2021) (No.
210187). In the present case, there is no evidence in
the record supporting the court’s finding that, during
the January 14, 2015 meeting, O’Reilly told the petitioner
that it was not likely that Baxter would testify. None
of the three individuals who attended that meeting and
who testified at the habeas trial provided testimony
that supports that finding. Both the petitioner and the
petitioner’s father testified that O’Reilly, in absolute
terms, told them that Baxter would not testify, whereas
O’Reilly testified that he did not recall there being any
discussion during that meeting about Baxter’s willing-
ness to testify. There is no other evidence in the record
that sheds light on any discussions had during the Janu-
ary 14, 2015 meeting relating to Baxter. Accordingly, we
conclude that the court’s finding is clearly erroneous.
Our conclusion that the court’s finding is clearly erro-
neous does not mean that the petitioner has satisfied
his burden to prove that O’Reilly rendered deficient
performance. The petitioner asserts that he established
that, during the January 14, 2015 meeting, O’Reilly ren-
dered deficient performance by misrepresenting to him
that Baxter would not testify at his criminal trial. It is
axiomatic, however, that finding facts and resolving
questions of credibility are within the sole province of
the finder of fact, not this court. See Brooks v. Commis-
sioner of Correction, 105 Conn. App. 149, 153, 937 A.2d
699, cert. denied, 286 Conn. 904, 943 A.2d 1101 (2008).
Although the petitioner and the petitioner’s father testi-
fied that O’Reilly told them, in absolute terms, that
Baxter would not testify, we cannot discern whether
the habeas court would have credited this testimony
in the absence of the court’s clearly erroneous finding.
See Salmon v. Commissioner of Correction, 178 Conn.
App. 695, 712, 177 A.3d 566 (2017) (observing that it
was uncertain whether, in absence of habeas court’s
clearly erroneous factual finding, habeas court would
have credited petitioner’s testimony to resolve factual
issue). Moreover, O’Reilly testified that, although he did
not recall Baxter’s willingness to testify being discussed
during the January 14, 2015 meeting, he also did not
recall ever telling the petitioner that Baxter would not
testify, thereby creating a dispute as to this factual
issue. Under these circumstances, we conclude that the
judgment rendered on count one must be reversed and
the case must be remanded for a new trial as to the
petitioner’s claim that O’Reilly rendered ineffective
assistance of counsel in connection with his purported
misrepresentation about Baxter. See id., 712–13
(reversing judgment and remanding case for new
habeas trial when habeas court made clearly erroneous
factual finding, leaving unresolved factual issue that
presented question of credibility to be addressed by
habeas court).12
At this juncture, we note that the court disposed of
the petitioner’s ineffective assistance of counsel claim
against O’Reilly on the performance prong of Strick-
land-Hill only without addressing the prejudice prong.
See Zachs v. Commissioner of Correction, 205 Conn.
App. 243, 255, 257 A.3d 423 (‘‘[b]ecause both [the perfor-
mance and the prejudice] prongs . . . must be estab-
lished 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, 338 Conn. 909, A.3d (2021). In his appel-
late brief, the respondent requests that we remand the
case to the court to make factual findings as to the
prejudice prong in the event that we conclude that the
court improperly determined that the petitioner failed
to prove deficient performance by O’Reilly. In support
of this argument, the respondent cites Miller v. Com-
missioner of Correction, 176 Conn. App. 616, 170 A.3d
736 (2017), in which a habeas court denied an ineffec-
tive assistance of counsel claim only on the basis of
the performance prong. Id., 621. On appeal, this court
concluded that (1) counsel’s performance was deficient
(because counsel’s advice regarding immigration conse-
quences was constitutionally insufficient), and (2) the
record was inadequate to determine whether counsel’s
deficient performance prejudiced the petitioner, such
that this court remanded the matter to the habeas court
for further proceedings to make a determination on the
prejudice prong. Id., 635–37. In the present case, unlike
in Miller, we do not make a conclusion as to whether
O’Reilly rendered deficient performance; rather, as a
result of the habeas court’s clearly erroneous finding,
we conclude that a new trial is necessary. Under these
circumstances, a remand to the habeas court for further
proceedings to address the prejudice prong is not
proper. See, e.g., Salmon v. Commissioner of Correc-
tion, supra, 178 Conn. App. 714–15 (reversing habeas
court’s judgment denying ineffective assistance of coun-
sel claim and remanding case to court for new trial
when court made clearly erroneous factual finding as
to performance prong and did not address prejudice
prong in its decision).
B
We next turn to the petitioner’s claim of ineffective
assistance of counsel predicated on O’Reilly’s pur-
ported failure to properly advise him as to the potential
defenses available to him, including self-defense, which
requires only a brief discussion. We construe this claim
to be intertwined with the petitioner’s principal claim
predicated on O’Reilly’s purported misrepresentation
concerning Baxter’s willingness to testify. Because we
concluded in part I A of this opinion that the court
committed error with respect to the principal claim and
that a new trial as to that claim is necessary, we further
conclude that the judgment rendered on count one must
be reversed insofar as the petitioner claimed that O’Re-
illy rendered ineffective assistance of counsel in con-
nection with his purported failure to properly advise
the petitioner as to the potential defenses available to
him, and the case must be remanded for a new trial as
to that claim.
II
The petitioner’s second claim is that the habeas court
improperly denied count two of the amended petition,
in which he asserted a claim of ineffective assistance
of counsel against Pattis. Specifically, the petitioner
asserts that the court committed error in rejecting his
claim that Pattis rendered ineffective assistance by fail-
ing (1) to file a motion to withdraw the petitioner’s
guilty pleas under Practice Book § 39-27 prior to sen-
tencing, and (2) to present adequate mitigation evidence
at sentencing. We address each assertion in turn.
A
First, the petitioner contends that the court improp-
erly concluded that Pattis did not render ineffective
assistance of counsel as a result of his failure to file a
motion to withdraw the petitioner’s guilty pleas under
Practice Book § 39-27 (4).13 For the reasons that follow,
we conclude that a new trial is necessary as to this claim.
The following additional facts and procedural history
are relevant to our resolution of this claim. In the
amended petition, the petitioner asserted that Pattis
rendered ineffective assistance of counsel, in part, on
the basis of an allegation that Pattis failed ‘‘to seek the
trial court’s permission to withdraw the petitioner’s
guilty pleas on the basis that they were unknowing,
unwilling, and/or involuntary based on [O’Reilly’s] defi-
cient performance for the reasons stated in [count one
of the amended petition] . . . .’’ In its decision, the
court rejected this claim, stating the following three
reasons. First, the court’s conclusion that the petitioner
failed to demonstrate that O’Reilly rendered ineffective
assistance of counsel foreclosed this claim. Second, the
petitioner failed to present any credible evidence that
his guilty pleas were ‘‘ ‘unwilling or involuntary . . . .’ ’’
Third, there was evidence in the record demonstrating
that Pattis had considered filing a motion to withdraw
the guilty pleas, but he made a reasonable decision
against doing so when he discovered that the state
would ‘‘insist on the murder charge in any plea agree-
ment, which meant that the present plea agreement
gave the petitioner the opportunity to argue for the
minimum mandatory sentence he was exposed to.’’
The petitioner asserts that his guilty pleas were not
made knowingly, intelligently, or voluntarily in light of
O’Reilly’s ineffective assistance of counsel, and, thus,
it was incumbent on Pattis to move to withdraw his
guilty pleas under Practice Book § 39-27 predicated on
a claim that he was denied effective assistance of coun-
sel. In light of our conclusion in part I of this opinion
that a new trial is necessary, in part, as to the petitioner’s
ineffective assistance of counsel claim against O’Reilly,
we conclude that a new trial is also necessary as to
this claim against Pattis. The court’s first two reasons
for rejecting this claim against Pattis—that the peti-
tioner failed to establish that O’Reilly rendered ineffec-
tive assistance of counsel, and that the petitioner failed
to demonstrate that his pleas were unwilling or involun-
tary—are untenable following our reversal of the denial,
in part, of count one of the amended petition and atten-
dant remand for a new trial. As for the court’s third
reason, whether Pattis made a strategic decision not to
seek withdrawal of the petitioner’s guilty pleas because
of the state’s insistence on the petitioner pleading guilty
to the murder charge—is irrelevant to the issue here.
The petitioner’s claim regarding O’Reilly was that, but
for O’Reilly’s ineffective assistance, the petitioner
would have asserted his right to a trial rather than
enter the guilty pleas. Thus, the purpose of seeking
withdrawal of the guilty pleas was not to negotiate a
better plea deal but to insist on going to trial.14
Accordingly, under the circumstances of this case,
we conclude that the judgment rendered on count two
must be reversed insofar as the petitioner claimed that
Pattis rendered ineffective assistance of counsel by fail-
ing to file a motion to withdraw the petitioner’s guilty
pleas, and the case must be remanded for a new trial
as to that claim.
B
Second, the petitioner contends that the court
improperly concluded that Pattis did not render ineffec-
tive assistance of counsel as a result of his failure to
present adequate mitigation evidence at sentencing. We
disagree.
‘‘Criminal defendants have a constitutional right to
effective assistance of counsel during the sentencing
stage.’’ (Internal quotation marks omitted.) Cruz v.
Commissioner of Correction, 206 Conn. App. 17, 31,
257 A.3d 399 (2021). ‘‘A claim of ineffective assistance
of counsel consists of two components: a performance
prong and a prejudice prong. To satisfy the performance
prong, a claimant must demonstrate that counsel made
errors so serious that counsel was not functioning as
the counsel guaranteed . . . by the [s]ixth [a]mend-
ment. . . . In Strickland [v. Washington, supra, 466
U.S. 687], the United States Supreme Court held that
[j]udicial scrutiny of counsel’s performance must be
highly deferential. It is all too tempting for a [petitioner]
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. . . . A fair assessment
of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s
perspective at the time. Because of the difficulties inher-
ent 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 [petitioner] must overcome the presumption
that, under the circumstances, the challenged action
might be considered sound trial strategy. . . . [C]oun-
sel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exer-
cise of reasonable professional judgment. . . .
‘‘To satisfy the prejudice prong, a claimant must dem-
onstrate that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. . . . With
respect to the prejudice component, [i]t is not enough
for the [petitioner] to show that the errors had some
conceivable effect on the outcome of the proceedings.’’
(Citations omitted; internal quotation marks omitted.)
Sotomayor v. Commissioner of Correction, 135 Conn.
App. 15, 21–22, 41 A.3d 333, cert. denied, 305 Conn. 903,
43 A.3d 661 (2012).
The following additional facts and procedural history
are relevant to our resolution of this claim. After plead-
ing guilty on January 14, 2015, the petitioner was sen-
tenced on April 7, 2015. During sentencing, Pattis asked
the court to impose twenty-five years of incarceration,
which was the mandatory minimum sentence for a mur-
der conviction. See General Statutes § 53a-35a (2).
Pattis offered mitigation evidence in support of the
petitioner, including telling the court that (1) two people
whom the petitioner knew were killed by local gang
members after being ‘‘green-lighted,’’ a term described
by Pattis as ‘‘a signal sent to gang members in the [local]
community that they could be killed with impunity,’’
(2) the petitioner ‘‘struggled against things that, frankly,
made his life a nightmare while he was a teenager,’’
including attending a party where he witnessed his
friend, Amos Brown, ‘‘involved in a lethal struggle,’’
testifying as a witness at Brown’s criminal trial, and
‘‘then believ[ing] he was put on a hit list and marked for
death,’’15 (3) for the petitioner’s safety, the petitioner’s
family sent him to school in New York for a few years
before he returned to Connecticut to work with his
family, (4) the petitioner was ‘‘not . . . proud of what
he did,’’ ‘‘made a mistake in shooting to kill,’’ and
‘‘[understood] that he erred,’’ and (5) the petitioner was
not the ‘‘legal fiction that the state has tried to create’’
of ‘‘some irresponsible gangbanger carrying guns for
anything other than self-protection.’’ Pattis further
brought in the petitioner’s father and Brown’s father to
address the court, each of whom made positive remarks
about the petitioner and discussed the violence that the
petitioner had experienced in his life. The petitioner
also addressed the court.
In sentencing the petitioner to a total effective sen-
tence of thirty years of incarceration, followed by ten
years of special parole, the sentencing court acknowl-
edged that the petitioner had lived in a violent environ-
ment, feared for his life, took full responsibility for his
actions, and was ‘‘more than the events that occurred
on October 30, 2012’’; nevertheless, the court deter-
mined that the petitioner’s conduct was not justified.
Specifically, the court stated: ‘‘[The petitioner] did not
have a right to take . . . Johnson’s life. He did not have
a right to put . . . Daley in a wheelchair for the rest
of his life. . . . Johnson and . . . Daley had families,
had friends. They had long lives ahead of them and
. . . Johnson’s life is obviously over and . . . Daley’s
life has been severely affected, and everyone, including
[the petitioner], has to be accountable for his conduct.’’
The court further observed that ‘‘[t]here have been alle-
gations that [Johnson and Daley] were gang members
and implications . . . that they were somehow violent
or responsible for criminal conduct and, to my knowl-
edge, they weren’t. And even if they were—and, again,
I’m not saying that they were, that does not justify what
[the petitioner] did . . . .’’
In its decision, the habeas court stated that the tran-
script of the petitioner’s sentencing, which was admit-
ted into evidence as a full exhibit during the habeas
trial, reflected that ‘‘Attorney Pattis argued, in direct
response to some of the state’s comments, about the
violence surrounding the petitioner, his attempts to
avoid that conflict, and his fear of being targeted, and
the court recognized those arguments.’’ Accordingly,
the court concluded that the petitioner’s claim ‘‘fails
because it is directly refuted by the evidence, and the
petitioner has failed to present any new or additional
evidence before this court that he claims would have
altered the . . . sentence.’’
The petitioner claims that Pattis did not adequately
advocate for him during sentencing because he ‘‘failed
to establish critical facts in order to provide a context
for the shooting in the most positive, sympathetic light
to the petitioner,’’ including that Johnson and Daley
were members of the local gang that had threatened
him in the past. We are not persuaded. As the habeas
court properly determined, the record reflects that
Pattis submitted ample mitigation evidence in support
of the petitioner at sentencing, which the sentencing
court took into consideration. In imposing its sentence,
the sentencing court emphasized the serious nature and
severe consequences of the petitioner’s actions. As the
habeas court correctly observed, the petitioner did not
identify any information that Pattis failed to present
that would have made it reasonably probable that the
sentencing court would have imposed a lesser sentence.
In particular, with respect to the petitioner’s contention
that Pattis should have provided information demon-
strating that Johnson and Daley were gang members,
the sentencing court stated that the petitioner’s conduct
was not justified even if Johnson and Daley were gang
members who were ‘‘somehow violent or responsible
for criminal conduct . . . .’’ Accordingly, we conclude
that the habeas court properly concluded that the peti-
tioner failed to demonstrate that Pattis rendered inef-
fective assistance of counsel in relation to this claim.
The judgment is reversed as to count one of the amended
petition for a writ of habeas corpus only insofar as
the petitioner claimed ineffective assistance of counsel
against Attorney Francis O’Reilly in connection with
the failure to correctly advise the petitioner concerning
Terrance Baxter’s willingness to testify and the failure
to properly advise the petitioner about the potential
defenses available to him and the case is remanded to
the habeas court for a new trial as to those claims; the
judgment is reversed as to count two of the amended
petition only insofar as the petitioner claimed ineffec-
tive assistance of counsel against Attorney Norman A.
Pattis in connection with the failure to move to with-
draw the petitioner’s guilty pleas predicated on the inef-
fective assistance of counsel rendered by O’Reilly and
the case is remanded to the habeas court for a new
trial as to that claim; the judgment is affirmed in all
other respects.
In this opinion the other judges concurred.
1
After the sentencing court had announced the petitioner’s sentence, the
state entered a nolle as to the charges pending in docket number CR-
XX-XXXXXXX. The disposition of docket number CR-XX-XXXXXXX is unclear;
however, in its decision, the habeas court noted that the plea deal agreed
to by the petitioner ‘‘resolved all outstanding files and charges pending
against the petitioner.’’
2
In support of count one of the amended petition, the petitioner alleged
additional deficiencies on the part of O’Reilly, which the habeas court
rejected in its corrected memorandum of decision. The petitioner has not
raised any claims on appeal concerning those additional alleged deficiencies.
3
In support of count two of the amended petition, the petitioner alleged
additional deficiencies on the part of Pattis, which the habeas court rejected
in its corrected memorandum of decision. The petitioner has not raised any
claims on appeal concerning those additional alleged deficiencies.
4
On August 10, 2018, the parties rested and presented closing arguments.
On August 13, 2018, the petitioner filed a motion to open the evidence to
present the testimony of an additional witness, Attorney Francis DiScala,
which the court granted, without objection, on August 24, 2018. On Novem-
ber 1, 2018, the parties elicited testimony from DiScala and, after resting,
presented additional closing arguments.
5
The court issued an original memorandum of decision on February 22,
2019. On February 26, 2019, the court issued the corrected memorandum
of decision, which corrected certain typographical errors.
6
The petitioner applied for, and was granted, a waiver of fees, costs, and
expenses and appointment of counsel on appeal.
7
See footnote 8 of this opinion.
8
The petitioner testified that he was a witness in a criminal trial in which
Amos Brown, his friend, was charged with, but later acquitted of, murder.
The petitioner further testified that, following Brown’s acquittal, Brown was
killed by members of the local gang of which, the petitioner believed, John-
son and Daley were members. The petitioner testified that, following Brown’s
acquittal, he was threatened and attacked by members of the gang.
9
The transcript of the January 14, 2015 hearing, which was admitted into
evidence as a full exhibit during the habeas trial, reflects that the trial court
informed the petitioner that any plea accepted by the court after that day
would be an open plea exposing the petitioner to the maximum sentence.
10
Baxter testified that, on April 15, 2015, pursuant to a plea agreement,
he pleaded guilty to several crimes, including hindering prosecution in rela-
tion to the events of October 30, 2012, and was subsequently sentenced to
six years of incarceration followed by four years of special parole.
11
The limited scope of this finding is further evinced by comments made
by the habeas court and the petitioner’s counsel during the closing arguments
held following DiScala’s testimony. Specifically, the following colloquy
occurred:
‘‘The Court: I mean, I’ll listen to it back, and, I mean, I thought the
testimony that was given here today was, we set a meeting at the jail, and
I thought we were there to discuss whether or not Baxter was going to
testify; and I thought the testimony was something to the effect of, but
[whether or not Baxter was going to testify] didn’t come up during that
meeting between [O’Reilly, DiScala and Baxter].
‘‘[The Petitioner’s Counsel]: That’s correct, Your Honor. My recollection
of the testimony . . . is that that meeting focused on what . . . Baxter’s
testimony would be . . . . So, my understanding of the facts and the testi-
mony is that there was never an in-depth discussion, would . . . Baxter
testify at that meeting . . . .’’ (Emphasis added.)
12
We note that clearly erroneous factual findings are deemed harmless
when they ‘‘do not undermine appellate confidence in the habeas court’s
fact-finding process . . . .’’ (Internal quotation marks omitted.) Charles v.
Commissioner of Correction, supra, 206 Conn. App. 358. The record does
not reflect that either (1) the court discredited the testimony of the petitioner
and the petitioner’s father, or (2) assuming that the testimony of the peti-
tioner and the petitioner’s father was credible, there was sufficient evidence
to uphold the court’s determination that the petitioner failed to prove defi-
cient performance by O’Reilly. Cf. id., 358–59 (concluding that habeas court’s
clearly erroneous findings were harmless). Thus, we cannot conclude that
the court’s clearly erroneous finding was harmless.
13
Practice Book § 39-27 provides in relevant part: ‘‘The grounds for
allowing the defendant to withdraw his or her plea of guilty after acceptance
are as follows . . .
‘‘(4) [t]he plea resulted from the denial of effective assistance of coun-
sel . . . .’’
14
At the habeas trial, the petitioner testified that he had discussions with
Pattis about withdrawing his guilty pleas on the basis of Baxter’s availability
to testify at his criminal trial. Pattis was not called as a witness at the
habeas trial.
15
See footnote 8 of this opinion.