King v. Commissioner of Correction ( 2019 )

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ROBERT KING v. COMMISSIONER OF CORRECTION
(AC 40904)
DiPentima, C. J., and Alvord and Beach, Js.
Syllabus
The petitioner, who had been convicted of two counts of the crime of assault
in the first degree in violation of statute (§ 53a-59 [a] [1] and [3]) in
connection with an incident in which he stabbed the victim multiple
times with a knife, sought a writ of habeas corpus, claiming that his trial
counsel had provided ineffective assistance. The habeas court rendered
judgment denying in part and dismissing in part the habeas petition,
from which the petitioner, on the granting of certification, appealed to
this court. Held:
1. The petitioner could not prevail on his claim that the habeas court improp-
erly concluded that he failed to establish that he had received ineffective
assistance from his trial counsel:
a. The petitioner’s claim that his trial counsel provided ineffective assis-
tance by not objecting to the trial court’s jury instructions or requesting
an additional jury instruction regarding the difference between the intent
elements of the two assault charges of which he was convicted, and that
he was prejudiced thereby was unavailing; the habeas court reasonably
concluded that the petitioner failed to establish both deficient perfor-
mance and prejudice, as the petitioner, at the habeas trial, presented
no proposed charge for which trial counsel could have advocated, the
instructions were correct as given and, therefore, further elucidation
was not required to satisfy the standard of reasonably competent repre-
sentation, and there was nothing to suggest that instructions providing
some unspecified greater detail would have made a difference in the
outcome of the trial.
b. The petitioner could not prevail on his claim that his trial counsel
provided ineffective assistance by declining to object to the admission
of a police detective’s written summary of the petitioner’s oral account
of the incident; trial counsel’s strategic decision to allow the written
summary into evidence to present an alternative narrative, namely, that
the petitioner had acted in self-defense, without the petitioner having
to testify and subject himself to cross-examination about his criminal
history, was not unreasonable, and there was not a reasonable probabil-
ity that the outcome of the trial would have been different if the written
summary had been excluded.
c. The habeas court reasonably concluded that the petitioner failed to
prove that he was prejudiced by his trial counsel’s failure to request
the trial court to place its rejection of his plea agreement with the state
on the record, as there was no reasonable probability that the outcome
of the criminal proceedings would have been different if trial counsel
had made the request; even if trial counsel had requested the trial court
to place its rejection of the plea agreement on the record, the court
may or may not have done so, and either way, the plea agreement would
have remained rejected, and any suggestion that the court would have
reconsidered its rejection if it had been prompted to put the matter on
the record was pure speculation.
2. The petitioner could not prevail on his claim that the habeas court improp-
erly dismissed his claim that the trial court violated his right to due
process by not stating on the record its reasons for refusing to accept
the plea agreement, which he claimed prevented him from pursuing an
appeal on that issue; there was nothing in the record to suggest that
the petitioner had been harmed by the absence of a record of the
rejection of the plea agreement, as the petitioner did not show that
there would have been the slightest difference in the outcome of the
trial if the rejection had been placed on the record.
Argued January 2—officially released September 24, 2019
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, Oliver, J.; judgment
denying the petition in part and dismissing the petition
in part, from which the petitioner, on the granting of
certification, appealed to this court. Affirmed.
Randall Bowers, with whom, on the brief, was Walter
C. Bansley IV, for the appellant (petitioner).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Eva Lenczewski, senior assistant state’s attor-
ney, for the appellee (respondent).
Opinion
BEACH, J. The petitioner, Robert King, appeals from
the judgment of the habeas court denying in part and
dismissing in part his amended petition for a writ of
habeas corpus. On appeal, the petitioner claims that
the court improperly (1) concluded that the petitioner
failed to establish that he had received ineffective assis-
tance from his trial counsel, and (2) dismissed the peti-
tioner’s claims that his right to due process was violated
by the trial court’s not stating on the record its refusal
to accept the petitioner’s pretrial plea agreement.1 We
affirm the judgment of the habeas court.
The following facts and procedural history are rele-
vant to our decision. Following a jury trial, the petitioner
was convicted of two counts of assault in the first
degree in violation of subdivisions (1) and (3) of General
Statutes § 53a-59 (a).2 During pretrial proceedings and
at trial, the petitioner was represented by Attorney Don-
ald O’Brien.
The petitioner appealed to this court, which reversed
his conviction and remanded the case for a new trial.
State v. King, 149 Conn. App. 361, 376, 87 A.3d 1193
(2014), rev’d, 321 Conn. 135, 136 A.3d 1210 (2016). Our
Supreme Court reversed this court’s judgment and
remanded the case to this court with direction to affirm
the trial court’s judgment. State v. King, 321 Conn. 135,
158, 136 A.3d 1210 (2016). The petitioner commenced
this habeas action, and, after a trial, the habeas court
denied in part and dismissed in part his amended habeas
petition. The habeas court thereafter granted the peti-
tioner’s petition for certification to appeal, and the peti-
tioner appealed to this court.
In its decision on the direct appeal, our Supreme
Court recited the following relevant facts, which the
jury reasonably could have found. ‘‘On December 18,
2010, Kyle Neri and Angela Papp went to visit the victim,
Kristen Severino, at her residence in Waterbury. Neri
and Papp had spent the day getting high on crack
cocaine and continued to do so with the victim once
they arrived at her residence. While the three were
sitting in the victim’s apartment, the [petitioner] entered
and began to argue with Neri over an unpaid $10 loan
that Neri owed the [petitioner]. As the argument
between Neri and the [petitioner] continued to escalate,
the [petitioner] went to the apartment’s kitchen and
returned, brandishing a steak knife. The [petitioner]
began waving the knife around and shouting at Neri
and Papp as Neri attempted to physically wrest the
knife from the [petitioner’s] control.
‘‘The victim then intervened in the altercation by
attempting to persuade the [petitioner] that Neri should
not die over a $10 debt. When her verbal entreaties
proved unsuccessful, the victim attempted to physically
separate the combatants as the [petitioner] continued
to swing the knife at Neri. The [petitioner] then threw
the victim against a wall and waved the knife in front
of her face. The victim attempted to move and the
[petitioner] rapidly stabbed her several times; he then
fled the scene.’’ Id., 138–39. Additional facts and proce-
dural history will be set forth as necessary.
I
The petitioner claims that the habeas court improp-
erly concluded that his trial counsel did not render
ineffective assistance. He claims that trial counsel’s per-
formance was deficient because he did not cause the
charges to be more clearly distinguished from each
other, object to the admission of a written summary of
the petitioner’s account of the incident, and insist that
the trial court state on the record its rejection of the
plea agreement.3 We disagree.
‘‘[T]he underlying historical facts found by the habeas
court may not be disturbed unless the findings were
clearly erroneous. . . . The habeas judge, as the trier
of facts, is the sole arbiter of the credibility of witnesses
and the weight to be given to their testimony. . . . The
application of historical facts to questions of law that
is necessary to determine whether the petitioner has
demonstrated prejudice under Strickland [v. Washing-
ton, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984)], however, is a mixed question of law and fact
subject to our plenary review.’’ (Citation omitted; inter-
nal quotation marks omitted.) Small v. Commissioner
of Correction, 286 Conn. 707, 716–17, 946 A.2d 1203,
cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129
S. Ct. 481, 172 L. Ed. 2d 336 (2008).
‘‘As enunciated in Strickland v. Washington, [supra,
486 U.S. 687] . . . [i]t is axiomatic that the right to
counsel is the right to the effective assistance of coun-
sel. . . . 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 competent 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 demon-
strate 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.’’ (Internal
quotation marks omitted.) Bryant v. Commissioner of
Correction, 290 Conn. 502, 510, 964 A.2d 1186, cert.
denied sub nom. Murphy v. Bryant, 558 U.S. 938, 130
S. Ct. 259, 175 L. Ed. 2d 242 (2009).
‘‘[A] court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reason-
able professional assistance; that is, the [petitioner]
must overcome the presumption that, under the circum-
stances, the challenged action might be considered
sound trial strategy. . . . [C]ounsel is strongly pre-
sumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable
professional judgment.’’ (Internal quotation marks
omitted.) Goodrum v. Commissioner of Correction, 63
Conn. App. 297, 300–301, 776 A.2d 461, cert. denied,
258 Conn. 902, 782 A.2d 136 (2001).
A
The petitioner claims that his trial counsel provided
ineffective assistance by not objecting to the jury
instructions or requesting an additional jury instruction
regarding the difference between the intent elements
of the two assault charges of which he was convicted,
and that he was prejudiced thereby. He contends that
he was ‘‘improperly convicted under two conflicting
theories of guilt, despite both theories being presented
in an ‘either/or’ manner.’’4 We are not persuaded.
Section 53a-59 (a) (1) requires an ‘‘intent to cause
serious physical injury to another person,’’ and § 53a-
59 (a) (3) requires that ‘‘under circumstances evincing
an extreme indifference to human life [the defendant]
recklessly engages in conduct which creates a risk of
death to another person . . . .’’ ‘‘Convictions are
legally inconsistent when a conviction of one offense
requires a finding that negates an essential element of
another offense of which the defendant has also been
convicted. . . . In examining a claim of legal inconsis-
tency, we must closely examine the record to determine
whether there is any plausible theory under which the
jury reasonably could have found the defendant guilty
of both offenses. . . . Additionally, in determining
whether two mental states are mutually exclusive, the
court must consider each mental state as it relates to the
particular result described by the statute.’’ (Citations
omitted; internal quotation marks omitted.) State v.
King, supra, 321 Conn. 140–41.
In the course of its decision in the direct appeal,
our Supreme Court addressed the issue of whether the
verdicts were legally inconsistent in the context of the
facts of this case: ‘‘At [the petitioner’s criminal trial],
the jury heard two accounts of the assault. First, the
[petitioner’s] written statement, provided to a detective
and introduced into evidence by the state without objec-
tion from the defense, described the stabbing as an
accident that occurred when he was swinging the knife
at Neri and the victim attempted to physically separate
the combatants. In the [petitioner’s] account, he and
Neri ‘got into a tussle. [Neri] was trying to take the
knife from me. I know it was getting rough. That was
when [the victim] got into the middle of us. She was
trying to break us up.’ While the victim was in between
the [petitioner] and Neri, the [petitioner] began ‘swing-
ing the knife at [Neri]. In the middle of that, [the victim]
started screaming . . . . That’s when I realized she
was hurt. At first, I ain’t know what was wrong, but
then I thought about it. That’s when I knew that I had
stabbed her.’ Thus, if the jury credited the [petitioner’s]
statement, it could have found that [his] act of swinging
a knife at Neri in close quarters while the victim was
between them demonstrated ‘an extreme indifference
to human life,’ and, that by doing so, [he] ‘recklessly
engage[d] in conduct which create[d] a risk of death
to another person,’ as required by § 53a–59 (a) (3) for
a conviction of reckless assault in the first degree.
‘‘Second, the testimony of Neri, Papp, and the victim
portrayed the [petitioner] as intentionally stabbing the
victim after the victim interfered in the [petitioner’s]
altercation with Neri. According to Neri, the victim
injected herself into the argument, stated that ‘nobody’s
going to get stabbed over $10,’ and offered to pay the
[petitioner] the money herself. The [petitioner] then put
‘the knife to her face and [told] her to shut . . . up.’
After the victim attempted to move away, the [peti-
tioner] ‘stab[bed] her three times’ on the ‘left side’ of her
‘stomach area.’ Consistent with Neri’s account, Papp
testified that the [petitioner] ‘started swinging the knife
on [the victim]’ and ‘stabbing her . . . over and over
and over, just going into the [victim].’ Likewise, the
victim testified that she approached the [petitioner] and
told him ‘that nobody should die and I would get him
the money, nobody needs to be killed tonight.’ The
victim stated that the [petitioner] then ‘threw me up
against the wall and put the knife in my face and was
screaming at me . . . and yelling at me and calling [me]
a [derogatory term]. . . .’ The victim testified that the
[petitioner] then ‘stabbed me . . . [i]n my stomach
right here, and three times over here on the side.’ The
jury reasonably could have credited the combined testi-
mony of the victim, Papp, and Neri to conclude that the
[petitioner] acted with ‘intent to cause serious physical
injury’ in violation of § 53a-59 (a) (1) when he stabbed
the victim at least three times with a steak knife.
‘‘We therefore agree with the state that the jury rea-
sonably could have found that the [petitioner’s] conduct
amounted to two separate acts. As the [petitioner] was
charged with both reckless and intentional assault, the
jury could have found that the [petitioner] was guilty
of both crimes by stabbing the victim while recklessly
swinging the knife at Neri and then intentionally stab-
bing the victim after she intervened and the [petitioner]
threw her against the wall. The state’s exhibits 14 and
15 showed, and the Appellate Court noted, that the
victim had four stab wounds, and as Neri testified that
he only witnessed the [petitioner] stab the victim three
times, the jury could have attributed the fourth stab
wound to the [petitioner’s] testimony describing the
stabbing as an accident that occurred when the victim
got in between the combatants. . . . Accordingly, the
[petitioner’s] convictions are not legally inconsistent
under the state’s argument that the assault occurred in
two reckless and intentional phases, respectively.
‘‘Additionally, we observe that under the [petition-
er’s] version that the assault only occurred in one inten-
tional episode, the convictions are not legally inconsis-
tent as the requisite mental states for the two
convictions are not mutually exclusive. As is clear from
our recent decision, a defendant may be convicted of
crimes that require differing mental states, so long as
those states relate to different criminal results. State v.
Nash, [316 Conn. 651, 668–69 114 A.3d 128 (2015)]; cf.
State v. King, 216 Conn. 585, 594, 583 A.2d 896 (1990).
. . . [T]he [petitioner’s] act of stabbing the victim is
consistent with two different mental states, each related
to two different results. Thus, even under the reasoning
of the [petitioner’s] argument, the reasoning of Nash
controls and the verdict returned by the jury is not
inconsistent.’’ (Citation omitted; emphasis in original;
footnotes omitted.) State v. King, supra, 321 Conn.
142–45.
At the habeas trial, the petitioner alleged that his trial
counsel was ineffective by not requesting jury instruc-
tions that more clearly would have differentiated the
counts and by not objecting to the instructions that
were given. The habeas court rejected the claim on
the grounds that the instructions were sufficient and
correct, that there was no indication that the trial court
would have altered its instructions if prompted by the
petitioner, that no proposed clarifying instructions had
been suggested to the habeas court, and that the instruc-
tions were, in any event, clear as given. The court con-
cluded that the petitioner failed to establish both defi-
cient performance and prejudice as to this claim.
In the direct appeal, our Supreme Court discussed
the clarity of the instructions that were given: ‘‘Follow-
ing his arrest, the [petitioner] was charged in a two
count substitute information with two crimes: assault
in the first degree in violation of § 53a-59 (a) (1) and
assault in the first degree in violation of § 53a-59 (a)
(3). . . . At trial, the state did not present the evidence
in a manner that related specifically to one charge or the
other. After the state rested its case, the court discussed
with the [petitioner] his decision not to testify and indi-
cated the possible sentences he could face if convicted.
The court specifically noted to the [petitioner] that he
could be ‘convicted under both sub[divisions]’ and
explained how that would affect his sentence. Prior to
closing argument, the court informed the jury that ‘to
the extent that what [an attorney] says about the law
differs from what I say, you have to follow my legal
instructions . . . if there’s any discrepancy you’ve got
to follow my instructions.’ During closing argument,
the prosecutor stated to the jury: ‘You may be wonder-
ing why there are two charges. You have a variety of
evidence to draw from and I don’t know what you’ll
find credible. If you find [the petitioner’s] statement
credible, he’s saying he’s waving the knife around, he’s
angry with [Neri], and [the victim] jumps in the middle,
if you believe [the petitioner’s] statement you would
look more to the assault one, reckless indifference.’
‘‘Following closing argument, the court instructed the
jury and informed it that it ‘must decide which testi-
mony to believe and which testimony not to believe.
You may believe all, none or any part of any witness’
testimony.’ The court also reminded the jury that ‘argu-
ments and statements by the attorneys in final argument
or during the course of the case are not evidence.’ The
court then explained the charges against the [petitioner]
to the jury, noting that [he] was ‘charged with two
crimes.’ The court next explained the elements of each
crime to the jury. Following the delivery of the jury
charge, the court asked whether counsel had any objec-
tion to the charge. Neither counsel objected. At no point
in the court’s instructions did it suggest that the jury
could not convict the [petitioner] of both charges.’’
Id., 146–47.
The petitioner maintains that in the absence of trial
counsel’s further distinguishing the charges, it is merely
a ‘‘hypothetical possibility’’ that the jury plausibly might
have pieced the evidence together in such a way as to
logically convict the petitioner of both crimes. At the
habeas trial, however, the petitioner presented no pro-
posed charge for which trial counsel could have advo-
cated. The habeas court’s conclusion that the petitioner
failed to establish both deficient performance and preju-
dice was reasonable. Because the instructions were
correct as given, further elucidation was not required
to satisfy the standard of reasonably competent repre-
sentation. See Walton v. Commissioner of Correction,
57 Conn. App. 511, 524, 749 A.2d 666 (counsel did not
render ineffective assistance by failing to object to jury
instruction when jury instruction was correct statement
of law), cert. denied, 254 Conn. 913, 759 A.2d 509 (2000).
Further, there is nothing to suggest that instructions
providing some unspecified greater detail would have
made a difference in the outcome of the trial, and,
therefore, our confidence in the result has not been
undermined. See Strickland v. Washington, supra, 486
U.S. 687. We, therefore, agree with the conclusions of
the habeas court.
B
The petitioner also claims that his trial counsel ren-
dered ineffective assistance because he declined to
object to the admission of a detective’s written sum-
mary of the petitioner’s oral account of the events that
transpired on the night in question. The petitioner char-
acterizes the statement as tantamount to a ‘‘confession’’
of his culpability and stresses that the statement was
hearsay that could have been excluded. He contends
that prejudice is apparent, referring to a general notion
that ‘‘experience shows that a jury’s ability to evaluate
[the] evidence is biased dramatically by the introduction
of a confession, no matter how incredible it appears in
light of other evidence.’’ State v. Lawrence, 282 Conn.
141, 204, 920 A.2d 236 (2007). The petitioner challenges
the wisdom of the strategy in allowing the statement
to be presented to the jury. We are not persuaded.
The following additional uncontested facts are rele-
vant to this claim. Upon the petitioner’s arrest, George
Tirado, a police detective, advised the petitioner of his
Miranda rights and then took the petitioner’s oral state-
ment regarding the events that occurred on the night
in question. With the petitioner’s permission, Tirado
typed a summary of the statement that the petitioner
had made to him. The petitioner signed the first page,
but declined to sign the following two pages because
he believed that Tirado’s transcription ‘‘made it sound
worse than it was.’’
At trial, the state called Tirado as a witness. Before
Tirado testified, the jury was excused while the court
addressed the extent to which Tirado would be permit-
ted to testify as to the statement the petitioner provided
to him. The court indicated that, although the document
containing Tirado’s typed summary of the petitioner’s
statement was inadmissible, Tirado would be permitted
to testify as to his recollection of the petitioner’s
statement.
During Tirado’s direct examination, the state moved
to enter into evidence the document containing Tirado’s
typed summary. Trial counsel made the decision not
to object to its admission.5 It was entered into evidence
as a full exhibit, and Tirado read it to the jury.6
At the habeas trial, trial counsel acknowledged that
Tirado’s typed summary was inadmissible and would
not have become a full exhibit had he objected to it.
He did not object, however, because he wanted to pres-
ent an alternative narrative, that the petitioner had
acted in self-defense, without the petitioner testifying
and subjecting himself to cross-examination about his
criminal history. Trial counsel had hoped that the jury
would credit the self-defense theory so that the peti-
tioner would be found not guilty of all the charges.
Accordingly, he believed that allowing the summary
into evidence was his best trial strategy.
Noting that the petitioner had not proposed an alter-
native strategy and recognizing the presumption that
trial counsel’s performance was reasonable, the habeas
court found no deficiency in trial counsel’s strategic
decision not to object to the admission of Tirado’s typed
summary. The court concluded that the petitioner failed
to establish both deficient performance and prejudice
as to this issue.
A habeas court is required to ‘‘indulge a strong pre-
sumption that counsel’s conduct falls within the wide
range of reasonable professional assistance . . . .’’
Strickland v. Washington, supra, 466 U.S. 689. ‘‘In
Strickland, 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
was unreasonable. . . . [C]ounsel is strongly pre-
sumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable
professional judgment.’’ (Internal quotation marks
omitted.) Martin v. Commissioner of Correction, 155
Conn. App. 223, 227, 108 A.3d 1174, cert. denied, 316
Conn. 910, 111 A.3d 885 (2015).
The strategy of allowing Tirado’s typed summary of
the petitioner’s statement into evidence was not unrea-
sonable, and, in any event, there is not a reasonable
probability that the outcome of the trial would have
been different if the typed summary had been excluded.
C
The petitioner additionally claims that the habeas
court erred in denying, for lack of prejudice, his claim
that his trial counsel’s failure to request the trial court
to place its rejection of the plea agreement on the record
constituted ineffective assistance of counsel. The peti-
tioner contends7 that the court was required by Practice
Book §§ 39-78 and 39-109 to place its reasons on the
record and that counsel’s failure to prompt the court
to do so constituted ineffective assistance. We agree
with the conclusion of the habeas court that no preju-
dice has been shown.
The following additional facts, generally agreed to
by the parties, are relevant to this claim. Prior to the
start of evidence before the jury in the criminal case,
the petitioner and the state reached a plea agreement,
prompted at least in part by the state’s having encoun-
tered difficulty in producing witnesses. The prosecutor
and trial counsel presented their agreement to the pre-
siding judge, in chambers and off the record. The judge
rejected the plea agreement, and trial counsel did not
ask the judge to place on the record his reasons for
rejecting the agreement. The judge did not sua sponte
provide information on the record, and trial counsel
did not raise the issue in postverdict motions. At the
habeas trial, trial counsel acknowledged that, in hind-
sight, he had reason to ask the judge to place his rejec-
tion on the record, because he believed that ‘‘the [j]udge
was acting as a prosecutor . . . [b]y telling the [s]tate
what—what [the state] can and cannot prove based on
. . . the file.’’
As noted previously, in order to show prejudice a
petitioner must demonstrate that there is a ‘‘reasonable
probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.’’
(Internal quotation marks omitted.) Bryant v. Commis-
sioner of Correction, supra, 290 Conn. 510. The stan-
dard, as applied to this case, requires a reasonable prob-
ability that the outcome of the criminal proceedings
would have been different if trial counsel had requested
the trial court to place its rejection of the plea agree-
ment on the record.
Had trial counsel so requested, the court perhaps
may have responded by putting its rejection on the
record; it also may have declined the request. In either
event, the outcome would not have been different—
the plea agreement would remain rejected. There is no
right to have any particular agreement accepted by the
court; see Missouri v. Frye, 566 U.S. 134, 147–48, 132
S. Ct. 1399, 182 L. Ed. 2d 379 (2012); see also State v.
Obas, 147 Conn. App. 465, 481–82, 83 A.3d 674 (2014),
aff’d, 320 Conn. 426, 130 A.3d 252 (2016); and any sug-
gestion that the court would have reconsidered its rejec-
tion if it had been prompted to put the matter on the
record is pure speculation.10 The habeas court reason-
ably concluded that the petitioner did not prove
prejudice.
II
The petitioner finally claims that the habeas court
improperly dismissed his claim that the trial court vio-
lated his right to due process by not placing on the
record its reasons for refusing to accept the parties’
plea agreement because ‘‘the petitioner was unable to
seek judicial review of the court’s refusal to accept the
plea agreement.’’ In his appellate brief, he stresses that
he and the state were in agreement regarding the pro-
posed plea, and he seems to suggest that the trial court
constitutionally could reject the plea only if the rejec-
tion was made on the record. He suggests that his posi-
tion is consistent with Practice Book § 39-10, although
he expressly does not argue that a violation of § 39-10
by itself provides a sufficient ground for relief.
The respondent, the Commissioner of Correction,
pleaded in his return that the constitutional claim
should be dismissed because it failed to state a ground
on which relief could be granted.11 The respondent
argues that judges are free to reject proposed plea
agreements even if both parties have agreed to the
disposition and that the requirement that pleas be
placed on the record arises only when the court has
agreed as well. If a court rejects a previously accepted
plea prior to sentencing, the defendant is entitled to
withdraw the plea. The respondent suggests as well
that merely placing the plea agreement and rejection
on the record would have provided no actual benefit
to the petitioner in any event.12 The habeas court noted
that the petitioner does not have a constitutional right
to be offered a plea, nor a right to have any plea accepted
by the court. The habeas court further observed that
Practice Book § 39-10 applies only after a plea has been
initially accepted by the court, and there was no show-
ing that the trial court had abused its discretion.
This claim presents a mixed question of law and fact
over which our review is plenary. See Small v. Commis-
sioner of Correction, supra, 286 Conn. 717. The petition-
er’s claim does not implicate a fundamental right.13 ‘‘A
defendant has no right to be offered a plea . . . nor a
federal right that the judge accept it . . . .’’ (Citation
omitted.) Missouri v. Frye, supra, 566 U.S. 148.
Although the parties presented a plea agreement to the
court in chambers, the court did not accept their
agreement.
There is nothing to suggest that the petitioner has
been harmed by the absence of a record of the rejection
of the plea agreement. The petitioner argues that the
absence of a record prevented him from pursuing an
appeal on this issue. Because there is no right to have
a plea accepted, however, and the court has discretion
whether to accept a plea, there has been no showing
that there would have been the slightest difference in
the outcome of the trial if the rejection had been placed
on the record. Without harm and any reasonable proba-
bility of prejudice, the petitioner cannot prevail. See
Small v. Commssioner of Correction, supra, 286 Conn.
731 (constitutional claim of ineffective assistance of
counsel fails because impossible for petitioner to dem-
onstrate reasonable probability that verdict would have
been different had omitted jury instruction been
included; therefore, no prejudice demonstrated).
Accordingly, the habeas court properly dismissed the
petitioner’s due process claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The habeas court dismissed the due process claim pertaining to the plea
process and denied the petitioner’s claim of ineffective assistance of counsel
in that regard.
2
General Statutes § 53a-59 (a) provides in relevant part: ‘‘A person is
guilty of assault in the first degree when: (1) With intent to cause serious
physical injury to another person, he causes such injury to such person or
to a third party by means of a deadly weapon or a dangerous instrument;
or . . . (3) under circumstances evincing an extreme indifference to human
life he recklessly engages in conduct which creates a risk of death to another
person, and thereby causes serious physical injury to another person . . . .’’
3
The petitioner has combined in part II of his appellate brief the due
process claim and ineffective assistance claim regarding the lack of a record
showing the rejection of the plea agreement. For convenience, we group
the claims of ineffective assistance together.
4
The sentences on the two counts were concurrent.
5
The following colloquy occurred when the state moved to enter into
evidence Tirado’s typed summary:
‘‘[The Prosecutor]: I’m going to show [Tirado] what’s being marked as
state’s exhibit 18 for identification purposes.
‘‘The Court: Attorney O’Brien . . . do you have an objection to the admis-
sibility of this document?
‘‘[Defense Counsel]: No, Your Honor.
‘‘The Court: Okay.’’
6
The following unsigned portion of Tirado’s transcription, as Tirado read
into evidence, is relevant: ‘‘[Neri] started getting mouthy with me. He was
cussing at me and telling me that he was gonna put a bullet in me. I got
even more [angry] and that was when I started yelling back at him. I then
walked back into the kitchen.
‘‘As I walked into the kitchen, this guy came out of the room. I turned
around and [Neri] had a gun in his hand and was pointing it at me. When
he was pointing the gun at me, he was talking [smack]. . . . I couldn’t tell
if the gun was real or fake. But now, I was real [angry]. After pointing the
gun at me, [Neri] walked back into his room. I was standing by the kitchen
table, so when I looked down I saw a steak knife. I then grabbed the knife
and went at [Neri]. I was telling him ‘. . . you got nerve pointing a gun at me!’
When I went at him, me and [Neri] got into a tussle. [Neri] was trying to
take the knife from me. I know it was getting rough. That was when [the
victim] got into the middle of us. She was trying to break us up. I remember
that I was pushing [the victim] to get at [Neri], and I remember [Neri] pushing
[the victim] to get at me. Like I said, it was getting stupid. At some point,
I was swinging the knife at [Neri]. In the middle of that, [the victim] started
screaming ‘oh my . . . oh my . . . .’ She was screaming real loud. That
was when me and [Neri] backed up. We both stared at [the victim]. That’s
when I realized that she was hurt. At first I ain’t know what was wrong,
but then I thought about it. That’s when I knew that I had stabbed her.’’
7
The petition alleged in relevant part: ‘‘Trial counsel’s acts and omissions
. . . fell below the level of reasonable competence required of habeas and/
or criminal defense lawyers within the state of Connecticut for the following
reasons . . . D. Failure to request that the trial court . . . create an ade-
quate record regarding the court’s refusal to permit a plea bargain offered
by the prosecution and accepted by the petitioner, pursuant to the require-
ments of Practice Book § 39-10. E. Failure to object, on the record, to the
trial court’s refusal to permit a plea bargain offered by the prosecution and
accepted by the petitioner, as an abuse of the court’s discretion.’’
8
Practice Book § 39-7 provides: ‘‘If a plea agreement has been reached
by the parties, which contemplates the entry of a plea of guilty or nolo
contendere, the judicial authority shall require the disclosure of the agree-
ment in open court or, on a showing of good cause, in camera at the time
the plea is offered. Thereupon the judicial authority may accept or reject
the agreement, or may defer his or her decision on acceptance or rejection
until there has been an opportunity to consider the presentence report, or
may defer it for other reasons.’’
9
Practice Book § 39-10 provides: ‘‘If the judicial authority rejects the plea
agreement, it shall inform the parties of this fact; advise the defendant
personally in open court or, on a showing of good cause, in camera that
the judicial authority is not bound by the plea agreement; afford the defen-
dant the opportunity then to withdraw the plea, if given; and advise the
defendant that if he or she persists in a guilty plea or plea of nolo contendere,
the disposition of the case may be less favorable to the defendant than that
contemplated by the plea agreement.’’
10
The petitioner suggests that the trial court invaded the province of the
prosecution by evaluating the strength of the state’s case and the relative
likelihood of procuring the appearance of witnesses. If a court should be
of the opinion that the state’s ability to prove a compelling case is strong,
it may well reject an agreement manifesting unusual leniency; however, if
the plea has been accepted conditionally by the court, the defendant must
be afforded the opportunity to withdraw the plea. See Santobello v. New
York, 404 U.S. 257, 263, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971); see also United
States v. Skidmore, 998 F.2d 372, 376 (6th Cir. 1993) (noting, in federal
context, ‘‘Rule 11 [of the Federal Rules of Criminal Procedure] expressly
permits a court to reject a proposed plea agreement, provided that the court
allow the defendant to withdraw the plea and advise the defendant of the
potential consequences of withdrawing a plea. Rule 11 does not limit the
reasons for which the district court may reject the proposed plea agreement;
rather, its terms permit a district court to reject a plea agreement either
because the proposed agreement is too lenient or because it is too harsh.’’)
Connecticut recognizes the same principle. See, e.g., Ebron v. Commissioner
of Correction, 307 Conn. 342, 362, 53 A.3d 983 (2012) (noting one element
necessary to show prejudice caused by trial counsel’s deficient advice
against accepting plea offer is that trial court would have accepted proposed
agreement); see also Practice Book § 39-7 (court may accept or reject agree-
ment of parties). We have been presented no authority for the proposition
that a court’s evaluation of the case impermissibly invades the province of
the prosecution.
11
Presumably this defense was raised pursuant to Practice Book § 23-
29 (2).
12
The petitioner suggests that had the rejection been on the record, he
would have been able to show that the court ‘‘had crossed a line’’ and acted
in a prosecutorial role. Courts, however, exercise discretion in determining
whether a proposed plea is appropriate, and independently assessing
strengths and weaknesses of both sides is part of the process. See generally
the discussion in State v. Cruz, 155 Conn. App. 644, 654–57, 110 A.3d 527
(2015); see also footnote 10 of this opinion.
13
No independent state constitutional claim has been advanced.