Hardison v. Commissioner of Correction ( 2014 )

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SIMON HARDISON v. COMMISSIONER
OF CORRECTION
(AC 35246)
Gruendel, Beach and Harper, Js.
Argued March 6—officially released August 26, 2014
(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
Cameron R. Dorman, assigned counsel, for the appel-
lant (petitioner).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were John C. Smriga, state’s attorney, and
Nicholas J. Bove, Jr., senior assistant state’s attorney,
for the appellee (respondent).
Opinion
HARPER, J. The petitioner, Simon Hardison, appeals
from the judgment of the habeas court denying his
second amended petition for a writ of habeas corpus.
The petitioner claims that the habeas court improperly
(1) denied his motion to preclude certain testimony,
and (2) concluded that his two trial attorneys provided
effective assistance of counsel with respect to his deci-
sion to enter a guilty plea and to seek a departure from
a mandatory minimum sentence pursuant to General
Statutes § 21a-283a.1 We disagree, and affirm the judg-
ment of the habeas court.
The habeas court reasonably could have found the
following facts and procedural history. The petitioner
was arrested and charged with disorderly conduct pur-
suant to General Statutes § 53a-182 on September 23,
2009, after a domestic violence incident. Subsequently,
he retained Attorney Samantha Kretzmer to represent
him.2 While that case was pending, the petitioner was
again arrested and charged with possession of heroin
with the intent to sell pursuant to General Statutes
§ 21a-278 (b), and possession of heroin with the intent
to sell within 1500 feet of a school pursuant to General
Statutes § 21a-278a (b) (narcotics charges). The peti-
tioner asked Kretzmer to represent him on the narcotics
charges as well, but she declined because the petition-
er’s codefendant with respect to those charges already
had engaged in ‘‘lengthy conversations’’ with her.3 As
a result of the conflict of interest, Kretzmer referred
the petitioner to Attorney Robert Berke. All charges
against the petitioner, however, were consolidated and
prosecuted together.
The petitioner’s case originally was placed on the
domestic violence docket before the trial court, Dooley,
J. On the basis of the narcotics charges, the petitioner
faced a mandatory minimum sentence of eight years
incarceration. See General Statutes §§ 21a-278 (b) (five
year mandatory minimum sentence) and 21a-278a (b)
(three year mandatory minimum sentence imposed con-
secutively to sentence pursuant to § 21a-278 [b]). While
the case was before Judge Dooley, the state offered a
plea bargain agreement in which the petitioner would
serve a total effective sentence of seven years, with a
right to argue that the sentence be suspended after a
minimum of one year or a maximum of three years,
followed by three years of probation. The petitioner
rejected this offer because he wanted the opportunity
to argue for a fully suspended sentence. The case then
was transferred to the pretrial docket before the court,
Iannotti, J.
After the case was transferred to the pretrial docket,
a new prosecutor, Assistant State’s Attorney Michael
DeJoseph, assumed responsibility to prosecute the
case. He reviewed all the charges and the petitioner’s
criminal record. He offered the defendant a plea bargain
agreement in which he would serve a total effective
sentence of seven years incarceration, execution sus-
pended after twenty-five months, followed by three
years of probation.4 Berke testified at the habeas trial
that he does not advise clients whether to accept a plea:
‘‘I’ll tell my clients what the options are. I’ll tell them the
evidence the government has, but I rarely recommend a
sentence. I tell them it’s their decision.’’ The petitioner
chose to reject the second plea offer as well. Instead,
the petitioner decided to plead guilty to all the charges
and to seek a departure from the eight year mandatory
minimum sentence pursuant to § 21a-283a.
Section 21a-283a permits a sentencing court to depart
from the mandatory minimum sentence if the defendant
previously has not invoked the section, the crime did
not involve violence,5 and the defendant can demon-
strate ‘‘good cause’’ to depart. Kretzmer stated that she
explains a § 21a-283a departure to her clients as ‘‘throw-
ing yourself on the mercy of the court.’’ Kretzmer and
Berke both advised the defendant that there were ‘‘no
guarantees’’ that Judge Iannotti would depart from the
eight year mandatory minimum sentence and that, if
he did decide to depart from the mandatory minimum,
the petitioner likely would still receive some jail time
and not a fully suspended sentence. Although Berke
stated that he felt the petitioner had ‘‘a decent shot’’
at securing a departure from the mandatory minimum
sentence, he noted that the petitioner probably would
be sentenced to some period of incarceration. Judge
Iannotti cautioned the petitioner that, ‘‘there’s no prom-
ises here whatsoever what’s going to happen,’’ regard-
ing the § 21a-283a departure.6 After being so advised by
his attorneys and the court, the petitioner acknowl-
edged that he was aware of the mandatory minimum
sentence and decided to take the chance that Judge
Iannotti would depart from the mandatory minimum
under § 21a-283a.
Both Kretzmer and Berke presented arguments dur-
ing the sentencing hearing, asking Judge Iannotti to
depart from the mandatory minimum sentence. Before
the court resumed the hearing after its lunch recess,
Judge Iannotti spoke to Kretzmer, Berke, and DeJoseph.
He indicated that, based on the presentence investiga-
tion report and the arguments made so far, he was not
going to depart from the mandatory minimum sentence.
Subsequently, DeJoseph offered not to object if the
court vacated the petitioner’s guilty plea for the charge
of possession of heroin within 1500 feet of a school
and sentenced him to a total effective sentence of ten
years incarceration, execution suspended after the five
year mandatory minimum sentence for the possession
of heroin with the intent to sell charge, followed by
five years of probation. Kretzmer and Berke then were
afforded an opportunity to discuss these developments
with the petitioner.
The attorneys advised the petitioner that Judge Ian-
notti indicated that he was not inclined to depart from
the mandatory minimum sentence of eight years, but
that DeJoseph had offered not to object to a total effec-
tive sentence of ten years, execution suspended after
five years, followed by five years of probation. Under
this offer, the petitioner’s sentence would be suspended
three years earlier than under the mandatory minimum
sentence that Judge Iannotti said he was inclined to
impose.7 The petitioner, after consulting with Kretzmer
and Berke, chose to accept the state’s offer. Thereafter,
the court sentenced the petitioner to a total effective
sentence of ten years incarceration, execution sus-
pended after five years, followed by five years of pro-
bation.
On September 6, 2012, the petitioner filed a second
amended petition for a writ of habeas corpus alleging
that ‘‘counsel’s failures to adequately advise the peti-
tioner as to the plea offer of seven years suspended
after twenty-five months and the consequences of
rejecting that offer and entering an open plea’’ violated
his constitutional right to effective assistance of coun-
sel. Specifically, the petitioner alleged that he never
had been apprised of the mandatory minimum sentence.
Had he been advised properly by counsel, according to
the petitioner, he would have accepted the state’s offer.
The habeas court concluded that Kretzmer and Berke
communicated the state’s plea bargain offers to the
petitioner, that he had been informed that there was
an eight year mandatory minimum sentence, and that
he was advised of the risks associated with rejecting
the state’s offers and seeking a departure under § 21a-
283a. The habeas court found that the petitioner
rejected these offers in the hope that he would receive
a fully suspended sentence. Also, the habeas court con-
cluded that the petitioner failed to prove that no reason-
able attorney would have attempted to argue for a § 21a-
283a departure under the circumstances, and, therefore,
Kretzmer’s and Berke’s performance was not deficient.
The habeas court granted the petition for certification
to appeal, and this appeal followed.
On appeal, the petitioner claims that the habeas court
improperly (1) allowed Kretzmer to testify because (A)
he did not waive the attorney-client privilege, and (B)
portions of her testimony violated the prohibition on
hearsay testimony; and (2) concluded that both Kretzm-
er’s and Berke’s representation did not fall below an
objective standard of reasonableness, and also that he
did not suffer prejudice. We conclude that the testimony
was admitted properly, and that the petitioner received
effective assistance from counsel.
I
The petitioner claims that the habeas court improp-
erly allowed Kretzmer to testify. This claim is based on
two grounds. First, the petitioner argues that the court
improperly found that he waived the attorney-client
privilege by putting Kretzmer’s communications with
him at issue. He reasons that, because Kretzmer was
his attorney only for purposes of the disorderly conduct
charge and not any of the narcotics charges that gave
rise to the mandatory minimum sentence, his second
amended petition for a writ of habeas corpus raised
only a claim of ineffective assistance of counsel against
Berke. As a result, the petitioner claims that he has not
put any of his communications with Kretzmer at issue.
Second, the petitioner claims that the court improperly
allowed Kretzmer to testify regarding Berke’s state-
ments to the petitioner because the testimony is inad-
missible hearsay. We conclude that the habeas court
did not err in admitting Kretzmer’s testimony.
A
The petitioner claims that the court improperly con-
cluded that he implicitly waived the attorney-client priv-
ilege with respect to his communications with
Kretzmer. ‘‘We begin by stating our standard of review.
Whether the trial court properly concluded that there
is an exception to the attorney-client privilege . . .
and, if so, whether it properly delineated the scope and
contours of such an exception, are questions of law.
. . . Accordingly, our review of [the issue] is ple-
nary. . . .
‘‘[Our Supreme Court has] recognized that the attor-
ney-client privilege was created to encourage full and
frank communication between attorneys and their cli-
ents and thereby promote broader public interests in
the observation of law and the administration of justice.
. . . Exceptions to the attorney-client privilege should
be made only when the reason for disclosure outweighs
the potential chilling of essential communications. . . .
‘‘[The Supreme Court] also [has] recognized . . .
that the attorney-client privilege implicitly is waived
when the holder of the privilege has placed the privi-
leged communications in issue. . . . [B]ecause of the
important public policy considerations that necessi-
tated the creation of the attorney-client privilege [how-
ever], the at issue, or implied waiver, exception is
invoked only when the contents of the legal advice is
integral to the outcome of the legal claims of the action.
. . . Such is the case when a party specifically pleads
reliance on an attorney’s advice as an element of a
claim or defense, voluntarily testifies regarding por-
tions of the attorney-client communication, or specifi-
cally places at issue, in some other manner, the
attorney-client relationship. In those instances the
party has waived the right to confidentiality by placing
the content of the attorney’s advice directly at issue
because the issue cannot be determined without an
examination of that advice.’’ (Citations omitted; empha-
sis in original; internal quotation marks omitted.) Cox
v. Burdick, 98 Conn. App. 167, 171–72, 907 A.2d 1282,
cert. denied, 280 Conn. 951, 912 A.2d 482 (2006).
The petitioner reasons that, because Kretzmer did
not represent him on the narcotics charges, his commu-
nications with her were not at issue for purposes of his
ineffective assistance claim, and, therefore, he did not
implicitly waive the attorney-client privilege. We dis-
agree. To begin, the petitioner’s second amended peti-
tion for a writ of habeas corpus stated that he was
represented by both Kretzmer and Berke. The petition
averred that his constitutional right to the effective
assistance of counsel was violated because of
‘‘[d]efense counsel’s failures to adequately advise the
petitioner as to the plea offer of seven years suspended
after twenty-five months and the consequences of
rejecting that offer and entering an open plea . . . .’’
The petitioner did not specify whether ‘‘counsel’’
referred to either Kretzmer, Berke, or both. See Black’s
Law Dictionary (9th Ed. 2009) (‘‘counsel’’ defined as
‘‘[o]ne or more lawyers who represent a client’’). We
disagree with the petitioner’s argument that the petition
placed only Berke’s communications at issue because
it did not allege that Kretzmer’s representation was inef-
fective.
Furthermore, Kretzmer’s statements are at issue
because, as demonstrated by the testimony at the
habeas trial, she and Berke both actively participated
in the petitioner’s plea negotiations and sentencing.
Kretzmer and Berke informed the court, both when the
petitioner pleaded guilty and at the sentencing hearing,
that they represented the petitioner. The two attorneys
advised the petitioner collaboratively with respect to
the plea offers that encompassed both the disorderly
conduct charge and the narcotics charges. Both Kret-
zmer and Berke engaged in group discussions with the
petitioner, advocated before the sentencing court, and
discussed with him Judge Iannotti’s candid remarks at
the sentencing hearing. Referring in part to the manda-
tory minimum sentence, Judge Iannotti asked the peti-
tioner before accepting his plea, ‘‘[Y]ou discussed all
of those issues . . . with your lawyers?’’ (Emphasis
added.) The petitioner responded that he did. Judge
Iannotti also confirmed before he sentenced the peti-
tioner that the petitioner ‘‘[had] time to consult with
[his] lawyers . . . .’’ (Emphasis added.)
We conclude that the petitioner put Kretzmer’s state-
ments at issue and cannot now claim that they are
protected by the attorney-client privilege. Kretzmer and
Berke both advised the petitioner and represented him
during the plea bargaining process and before the sen-
tencing court. The court confirmed that the petitioner
had consulted with his attorneys before accepting the
state’s subsequent offer and entering a plea. Assuming
the petition for a writ of habeas corpus was more spe-
cific, and only claimed that Berke was ineffective, Kret-
zmer’s statements would still be at issue when
determining whether Berke adequately advised the peti-
tioner. Because the attorneys advised the petitioner
collaboratively, the statements of one attorney directly
influence whether the other attorney’s advice was ade-
quate. For example, if during group discussions Kret-
zmer had advised the petitioner that he faced an eight
year mandatory minimum sentence, that statement
would be relevant as to whether Berke was ineffective
by failing to so advise. See White v. Commissioner
of Correction, 145 Conn. App. 834, 841, 77 A.3d 832
(deficient performance depends on surrounding cir-
cumstances at trial), cert. denied, 310 Conn. 947, 80
A.3d 906 (2013). We conclude that the petitioner has
waived the attorney-client privilege because the issues
raised in his petition cannot be determined without
examining Kretzmer’s advice, and, therefore, the habeas
court did not err in denying the motion in limine to
preclude her testimony. See Cox v. Burdick, supra, 98
Conn. App. 173.
B
The petitioner also claims that the habeas court
improperly allowed Kretzmer to testify as to Berke’s
out-of-court statements in violation of the prohibition
on hearsay testimony. The petitioner does not specify
what testimony he takes issue with, but at trial he
objected generally to Kretzmer’s testimony regarding
Berke’s conversations with the petitioner. Kretzmer tes-
tified as to the substance of conversations that she and
Berke collectively had with the petitioner, but did not
testify as to what Berke individually said during those
conversations.8 We conclude that the habeas court
properly admitted Kretzmer’s testimony.
‘‘To the extent [that] a trial court’s admission of evi-
dence is based on an interpretation of the Code of
Evidence, our standard of review is plenary. For exam-
ple, whether a challenged statement properly may be
classified as hearsay . . . [is a] legal [question]
demanding plenary review.’’ (Internal quotation marks
omitted.) State v. Miguel C., 305 Conn. 562, 571, 46
A.3d 126 (2012). ‘‘Hearsay is an out-of-court statement
offered to prove the truth of the matter asserted and
is generally inadmissible . . . .’’ State v. Calderon, 82
Conn. App. 315, 321, 844 A.2d 866, cert. denied, 270
Conn. 905, 853 A.2d 523, cert. denied, 543 U.S. 982, 125
S. Ct. 487, 160 L. Ed. 2d 361 (2004). ‘‘If such a statement
[however] is offered for a purpose other than establish-
ing the truth of the matters contained in the statement,
it is not hearsay.’’ (Internal quotation marks omitted.)
Id., 323.
We conclude that Kretzmer’s testimony was not hear-
say because, to the extent that she was summarizing
Burke’s out-of-court statements, those statements were
not offered for the truth of the matter asserted therein.
The petitioner alleged that he was not made aware of
the mandatory minimum sentence prior to rejecting
the state’s plea offer, and that he was provided with
‘‘unreasonable advice.’’ In so far as Kretzmer summa-
rized Burke’s out-of-court statements, that testimony
was relevant to show that the statements were made,
not that the statements made were true. As such, her
testimony was not hearsay. See State v. Calderon, supra,
82 Conn. App. 323; see also Warner v. Warner, 124
Conn. 625, 638, 1 A.2d 911 (1938) (plaintiff’s testimony
regarding attorney’s statements admissible ‘‘to show
what that advice was for the purpose of proving
[whether] she followed it as she alleged’’). Furthermore,
even if Kretzmer’s testimony was inadmissible hearsay,
any error in admitting that testimony was harmless
because it was merely cumulative of Berke’s properly
admitted testimony. See State v. Dehaney, 261 Conn.
336, 364–65, 803 A.2d 267 (2002), cert. denied, 537 U.S.
1217, 123 S. Ct. 1318, 154 L. Ed. 2d 1070 (2003). For the
foregoing reasons, we conclude that the habeas court
did not err in admitting Kretzmer’s testimony.
II
The petitioner’s final claim is that the habeas court
improperly concluded that Kretzmer and Berke pro-
vided effective assistance as his trial attorneys with
respect to advising him regarding the state’s plea offer
and his decision to seek a departure from the mandatory
minimum sentence.9 He specifically claims that Berke
and Kretzmer failed to recognize that the trial court
was not likely to depart from the mandatory minimum
sentence pursuant to § 21a-283a and, as a result, they
improperly failed to advise him to accept the state’s
plea offer. We disagree.
‘‘We begin by setting forth the applicable standard
of review and the law governing ineffective assistance
of counsel claims. The habeas court is afforded broad
discretion in making its factual findings, and those find-
ings will not be disturbed unless they are clearly errone-
ous.’’ (Internal quotation marks omitted.) Vazquez v.
Commissioner of Correction, 123 Conn. App. 424, 435,
1 A.3d 1242 (2010), cert. denied, 302 Conn. 901, 23 A.3d
1241 (2011).10 ‘‘[T]he habeas judge, as the trier of facts,
is the sole arbiter of the credibility of witnesses and
the weight to be given to their testimony. . . . The
application of the habeas court’s factual findings to the
pertinent legal standard, however, presents a mixed
question of law and fact, which is subject to plenary
review.’’ (Citation omitted; internal quotation marks
omitted.) Gaines v. Commissioner of Correction, 306
Conn. 664, 677, 51 A.3d 948 (2012).
‘‘A criminal defendant is constitutionally entitled to
adequate and effective assistance of counsel at all criti-
cal stages of criminal proceedings. . . . This right
arises under the sixth and fourteenth amendments to
the United States constitution and article first, § 8, of
the Connecticut constitution. . . . It is axiomatic that
the right to counsel is the right to the effective assis-
tance of counsel. . . . A claim of ineffective assistance
of counsel consists of two components: a performance
prong and a prejudice prong. To satisfy the performance
prong . . . the petitioner must demonstrate that his
attorney’s representation was not reasonably compe-
tent or within the range of competence displayed by
lawyers with ordinary training and skill in the criminal
law. . . . To satisfy the prejudice prong, a claimant
must demonstrate that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. . . . The
claim will succeed only if both prongs are satisfied.’’
(Citations omitted; internal quotation marks omitted.)
Vazquez v. Commissioner of Correction, supra, 123
Conn. App. 435–36.
The petitioner claims that his trial counsel were inef-
fective with respect to his decision to reject the state’s
plea offer and to enter a guilty plea. Regarding claims
related to a petitioner’s decision to plead guilty, ‘‘[o]n
the one hand, defense counsel must give the client the
benefit of counsel’s professional advice on this crucial
decision of whether to plead guilty. . . . As part of this
advice, counsel must communicate to the defendant
the terms of the plea offer . . . and should usually
inform the defendant of the strengths and weaknesses
of the case against him, as well as the alternative senten-
ces to which he will most likely be exposed . . . . On
the other hand, the ultimate decision whether to plead
guilty must be made by the defendant. . . . And a law-
yer must take care not to coerce a client into either
accepting or rejecting a plea offer. . . . Counsel’s con-
clusion 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 reason-
ableness because [r]epresentation is an art . . . and
[t]here are countless ways to provide effective assis-
tance in any given case . . . .’’ (Emphasis omitted;
internal quotation marks omitted.) Id., 438.
The petitioner specifically claims that Kretzmer and
Berke were ineffective because they failed to advise
him effectively regarding his chance of successfully
pursuing a departure from the mandatory minimum
sentence pursuant to § 21a-283a. Section 21a-283a pro-
vides in relevant part: ‘‘[W]hen sentencing a person
convicted of a violation of any provision of this chapter
. . . for which there is a mandatory minimum sentence,
which did not involve the use, attempted use or threat-
ened use of physical force against another person or
result in the physical injury or serious physical injury
of another person, and in the commission of which such
person neither was armed with nor threatened the use
of or displayed or represented by word or conduct that
such person possessed any firearm, deadly weapon or
dangerous instrument . . . the court may, upon a
showing of good cause by the defendant, depart from
the prescribed mandatory minimum sentence, provided
the provisions of this section have not previously been
invoked on the defendant’s behalf . . . .’’ The peti-
tioner argues that Kretzmer and Berke were ineffective
because they should have known that the facts and
circumstances of his case would not constitute ‘‘good
cause’’ under the statute, and, as a result, they should
have instructed him to accept the state’s plea offer.
We disagree, and conclude that the petitioner has not
demonstrated that either Kretzmer’s or Berke’s perfor-
mance fell below an objective standard of reason-
ableness.
The habeas court credited both Kretzmer’s and
Berke’s testimony that they advised him of the risks of
pleading guilty and pursuing a departure under § 21a-
283a, including the possibility that he could be sen-
tenced to the mandatory minimum of eight years incar-
ceration. Counsel’s performance was not
constitutionally deficient, as they ‘‘communicate[d] to
the [petitioner] the terms of the plea offer [and] . . .
inform[ed] the [petitioner] of . . . the alternative sen-
tences to which he will mostly be exposed . . . .’’
(Internal quotation marks omitted.) Vazquez v. Com-
missioner of Correction, supra, 123 Conn. App. 438.
There is no requirement that counsel advise his client
to accept a plea. Id., 437.
Furthermore, the petitioner provided no evidence
that pursuing a departure from the mandatory minimum
sentence under § 21a-283a was not reasonably feasible.
The only witnesses that testified regarding the standard
for pursuing a departure were Kretzmer and Berke.
Kretzmer testified that, in her experience: ‘‘Judge Ian-
notti has always told me . . . he doesn’t like [to depart
under § 21a-283a] when [there are] crimes of violence.
. . . There was no issue of violence here in the [peti-
tioner’s] case.’’ Berke stated that what constituted
‘‘good cause’’ to depart from the mandatory minimum
was left to the discretion of the trial court. Both attor-
neys believed that there was a reasonable chance that
the trial court would depart from the mandatory mini-
mum sentence. The petitioner did not present any evi-
dence to the habeas court that tended to show that,
given the facts and circumstances of his case, it was
not reasonably feasible to pursue a departure pursuant
to § 21a-283a. We conclude that the petitioner has failed
to meet his burden of proof that his attorneys were
ineffective, and, therefore, the habeas court properly
denied his petition for a writ of habeas corpus. See
Gibson v. Commissioner of Correction, 98 Conn. App.
311, 316–17, 908 A.2d 1110 (2006) (petitioner failed to
show deficient performance when no evidence to sup-
port claim), cert. denied, 281 Conn. 908, 916 A.2d 49
(2007).
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 21a-283a provides: ‘‘Notwithstanding any provision
of the general statutes, when sentencing a person convicted of a violation
of any provision of this chapter, except a violation of subsection (a) or (c)
of section 21a-278a, for which there is a mandatory minimum sentence,
which did not involve the use, attempted use or threatened use of physical
force against another person or result in the physical injury or serious
physical injury of another person, and in the commission of which such
person neither was armed with nor threatened the use of or displayed or
represented by word or conduct that such person possessed any firearm,
deadly weapon or dangerous instrument, as those terms are defined in
section 53a-3, the court may, upon a showing of good cause by the defendant,
depart from the prescribed mandatory minimum sentence, provided the
provisions of this section have not previously been invoked on the defen-
dant’s behalf and the court, at the time of sentencing, states in open court
the reasons for imposing the particular sentence and the specific reason
for imposing a sentence that departs from the prescribed mandatory mini-
mum sentence.’’
2
As a result of the events giving rise to the disorderly conduct charge,
the petitioner also was charged with violation of a conditional discharge.
That charge is not relevant to this appeal.
3
See generally rule 1.7 of the Rules of Professional Conduct.
4
The transcript of the plea hearing indicates that there was some confusion
as to whether, after the case was transferred to the pretrial docket, the
petitioner still could have accepted the state’s prior offer of a total effective
sentence of seven years incarceration, execution suspended after three years
with a right to argue down to one year, followed by three years of probation.
DeJoseph represented that he did not consider that offer to be available
after the transfer, and explained at the plea hearing as follows: ‘‘[A]fter
talking with [the previous state’s attorney] . . . [the parties] were unable
to resolve the case over in [domestic violence court]. In my mind, then, it
comes over here, it’s looked at . . . de novo by the prosecuting authorities.’’
DeJoseph later stated: ‘‘All I know is the case is in front of me now, [and]
I’m putting an offer on that I think is appropriate based upon his record
[and] the facts of the case.’’ The habeas court concluded that the petitioner
rejected the initial offer because he wanted to pursue a fully suspended
sentence.
5
General Statutes § 21a-283a provides, in relevant part, that the sentencing
court may depart from the mandatory minimum sentence if the crime ‘‘did
not involve the use, attempted use or threatened use of physical force against
another person or result in the physical injury or serious physical injury of
another person, and in the commission of which such person neither was
armed with nor threatened the use of or displayed or represented by word
or conduct that such person possessed any firearm, deadly weapon or
dangerous instrument . . . .’’
6
At the habeas trial, Kretzmer testified: ‘‘[W]e had relayed to [the peti-
tioner] before he entered the pleas, you either accept Attorney DeJoseph’s
offer of the seven years suspended after twenty-five months, three years
probation or you go forward with [§ 21a-283a] or there’s [a] trial. I mean
those were the only options . . . . [H]e kept saying over and over, ‘I don’t
want the twenty-five months,’ so it was either trial or [§ 21a-283a].’’
7
At the habeas trial DeJoseph also noted that, even after Judge Iannotti
had said he was not inclined to depart from the mandatory minimum sen-
tence: ‘‘We didn’t know what the judge was going to do on the top number
. . . we didn’t know if it was going to be something suspended after eight
[years] and we did not know if he was going to get probation or a period
of special parole. There were a lot of alternatives the judge had opened up
to him because it was an open plea and . . . no one was aware of what
exactly the judge intended. We only knew that the number to serve was
going to be at least eight years.’’
8
For example, Kretzmer testified: ‘‘We made it clear to him that there’s
a chance he wasn’t going to get the judge to depart . . . .’’
9
The petitioner claims that his petition for a writ of habeas corpus alleged
only that Berke was ineffective, and makes no allegations related to Kretzm-
er’s representation. He argues in the alternative, however, that Kretzmer
also provided ineffective assistance. As noted previously, the petition does
not specify which attorney the petitioner claims was ineffective, and the plain
language indicates that the petitioner alleged both counsel were ineffective.
Furthermore, because testimony at the habeas trial reflects that the two
attorneys engaged in a collaborative effort to advise and represent the
petitioner at all times relevant to this appeal, we interpret the petitioner’s
claim as alleging that both Kretzmer and Berke provided ineffective represen-
tation. We agree with the respondent, the Commissioner of Correction,
however, that any claim that Kretzmer provided ineffective assistance as a
result of a conflict of interest was not alleged in the petition and was not
before the habeas court. We therefore decline to review it. See Alexander
v. Commissioner of Correction, 103 Conn. App. 629, 640, 930 A.2d 58, cert.
denied, 284 Conn. 939, 973 A.2d 695 (2007).
10
The petitioner also claims that the habeas court made several clearly
erroneous factual findings not supported by the evidence. After a careful
review of the record, we conclude that these findings have support and that
the petitioner’s claims are meritless. See Robert B. v. Commissioner of
Correction, 85 Conn. App. 740, 742, 859 A.2d 38, cert. denied, 272 Conn.
904, 863 A.2d 697 (2004).