Echeverria v. Commissioner of Correction ( 2019 )

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SERGIO ECHEVERRIA v. COMMISSIONER
OF CORRECTION
(AC 40903)
Lavine, Keller and Harper, Js.
Syllabus
The petitioner, a citizen of Bolivia, sought a writ of habeas corpus, claiming
that his trial counsel had provided ineffective assistance by failing to
advise him adequately as to the immigration consequences of his plea
of guilty to certain offenses that subjected him to deportation. The
petitioner initially was charged with offenses that exposed him to twelve
years of imprisonment. After the petitioner received a plea offer from
the state, the trial court indicated that it would allow the petitioner to
enter an open guilty plea with no agreed upon sentence to two charges
and offered to vacate the plea and grant the petitioner’s application
for accelerated rehabilitation if the petitioner paid a $10,000 fine. The
petitioner then entered a guilty plea. It was subsequently determined
that the petitioner was ineligible for accelerated rehabilitation, and the
state and the petitioner agreed on a sentence of five years of imprison-
ment, execution suspended, with three years of probation. The petitioner
did not ask to withdraw his guilty plea. After the petitioner was sen-
tenced, deportation proceedings against him were initiated. At the
habeas trial, the petitioner testified that, at the time he entered his
plea, he understood that if it was determined that he was ineligible for
accelerated rehabilitation, he could be deported. He also testified that
he did not think he would be deported after he accepted a plea agreement
that did not require him to serve any time in prison. The habeas court
rendered judgment denying the habeas petition and granted the petition
for certification to appeal, and the petitioner appealed to this court.
Held that the habeas court properly rejected the petitioner’s ineffective
assistance of counsel claim and denied the habeas petition, that court
having properly determined that the petitioner failed to demonstrate
that he was prejudiced by his trial counsel’s allegedly deficient perfor-
mance: the habeas court credited the testimony of the petitioner’s trial
counsel that avoiding double digit incarceration was the petitioner’s
primary concern, that, on several occasions, he discussed with the peti-
tioner the immigration issues associated with the case and that it was
his understanding that the petitioner knew of the immigration conse-
quences, the petitioner stated on the record during the plea canvass
that he understood that his guilty plea may lead to his deportation and
his claim that he would have proceeded to trial had he known of the
immigration consequences of his guilty plea was belied by the testimony
adduced at the habeas trial; accordingly, the habeas court’s conclusion
was legally and logically correct, and the petitioner failed to demonstrate
a reasonable probability that he would not have pleaded guilty had he
known that it would lead to certain deportation and that he, instead,
would have proceeded to trial.
Argued May 13—officially released September 24, 2019
Procedural History
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 peti-
tion, from which the petitioner, on the granting of certi-
fication, appealed to this court. Affirmed.
Vishal K. Garg, for the appellant (petitioner).
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were Richard J. Colangelo,
Jr., state’s attorney, and Jo Anne Sulik, supervisory
state’s attorney, for the appellee (respondent).
Opinion
HARPER, J. The petitioner, Sergio Echeverria,
appeals from the judgment of the habeas court denying
his petition for a writ of habeas corpus. The petitioner’s
sole claim on appeal is that the habeas court improperly
rejected his claim that he had received ineffective assis-
tance of counsel due to his attorney’s failure to advise
him properly of the immigration consequences of his
guilty plea pursuant to Padilla v. Kentucky, 559 U.S.
356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). We disagree
and, accordingly, affirm the judgment of the habeas
court.
The following facts and procedural history are rele-
vant to this appeal. The petitioner is a Bolivian citizen
who entered the United States without authorization at
the age of six. On February 7, 2014, police officers
executed a search warrant on the petitioner’s Stamford
apartment. Pursuant to the executed warrant, the police
officers found and subsequently seized 4.3 pounds of
marijuana, a large sum of cash, and a semiautomatic
pistol with the serial number removed. A police report
admitted into evidence at the habeas trial also revealed
that the police seized, inter alia, a marijuana grinder, a
digital scale, and several plastic bags containing the
drug commonly referred to as ‘‘Molly.’’ The petitioner
subsequently was arrested and charged with two counts
of possession of a hallucinogenic substance other than
marijuana or more than four ounces of marijuana in
violation of General Statutes § 21a-279 (b); possession
of marijuana with intent to sell in violation of General
Statutes § 21a-277 (b); operation of a drug factory in
violation of General Statutes § 21a-277 (c); possession
of narcotics with intent to sell by a person who is not
drug-dependent in violation of General Statutes § 21a-
278 (b); and illegal alteration of a firearm identification
mark in violation of General Statutes § 29-36.1 There-
after, the petitioner retained Attorney Michael Skiber
to represent him.
Following the petitioner’s arrest, the state and Skiber,
on behalf of the petitioner, entered into pretrial negotia-
tions. The state initially offered a plea deal by which
the petitioner would plead guilty to a charge stemming
from the sale of marijuana,2 as well as alteration of a
firearm identification mark, and the state would recom-
mend a sentence of five years of incarceration, execu-
tion suspended after three years, followed by three
months of probation.3 The petitioner did not accept the
offer, and the case was placed on the jury list.
On June 3, 2015, after the petitioner received another
plea offer from the state, the trial court indicated that
it would allow the petitioner to enter an open guilty
plea with no agreed upon sentence to possession of
marijuana with intent to sell in violation of § 21a-277
(b) and alteration of a firearm identification mark in
violation of § 29-36. If, however, the petitioner paid a
$10,000 fine, the trial court offered to vacate the plea
and grant the petitioner’s application for accelerated
rehabilitation. The petitioner subsequently entered a
guilty plea. The trial court accepted the petitioner’s
plea, finding that it was made knowingly, intelligently,
and voluntarily. After the trial court accepted his plea,
the petitioner stated that he was unsure of whether he
previously had been convicted of a crime, calling into
question his ability to receive accelerated rehabilita-
tion.4 In light of the petitioner’s statement, Skiber asked
the trial court to let the petitioner withdraw his plea.
The trial court declined Skiber’s request, opting instead
to determine whether the petitioner was in fact eligible
for accelerated rehabilitation before allowing the peti-
tioner to withdraw his plea.
After it was determined that the petitioner was ineligi-
ble for accelerated rehabilitation, the state and the peti-
tioner agreed on a sentence of five years of incarcera-
tion, execution suspended, with three years of
probation. The petitioner did not ask for his plea to be
withdrawn. On September 3, 2015, the trial court found
the petitioner guilty and sentenced the petitioner in
accordance with the agreed upon disposition.
After the petitioner was sentenced, the United States
Department of Homeland Security (department) initi-
ated proceedings to deport the petitioner. In its petition
to remove the petitioner from the country, the depart-
ment cited as grounds for removal (1) the petitioner’s
criminal conviction, (2) the petitioner’s unlawful entry
into the United States, and (3) that the petitioner did
not possess any valid documentation to lawfully remain
in the country. On February 18, 2016, the United States
Immigration Court adjudicated the petitioner to be
removable from the United States. On May 6, 2016, the
petitioner filed the underlying petition for a writ of
habeas corpus alleging, inter alia, that his trial counsel
had provided ineffective assistance by failing to inform
him of the immigration consequences of his guilty plea.
A trial on the petition for a writ of habeas corpus was
conducted on April 17, 2017. The petitioner presented
testimony from himself, Skiber, and an expert witness,
Attorney Kevin Smith, a criminal defense attorney who
had experience in representing defendants who faced
immigration consequences stemming from criminal
charges. The respondent did not present any evidence.
The petitioner testified that he had hired Skiber to
represent him after posting bail. The petitioner testified
that during their initial meeting, he informed Skiber
that he was not a citizen of the United States. Further,
the petitioner testified that when the state initially
offered a plea deal which, according to the petitioner,
included two years of incarceration, he did not accept
the offer because he knew that it would lead to him
being deported. The petitioner testified that he spoke
with an immigration attorney upon receiving the plea
offer that included two years of jail time, but he was
unable to identify with whom he spoke. According to
the petitioner, the immigration attorney advised him to
seek a plea deal with no jail time because any conviction
that entailed more than a year in jail was likely to render
him deportable.
The petitioner also testified that when he pleaded
guilty to possession of marijuana with intent to sell
and alteration of a firearm identification mark, he was
unsure of what the immigration consequences were,
but he understood that if it was determined that he was
ineligible for accelerated rehabilitation, he was going
to be deported. Later, the petitioner testified that, after
he was deemed ineligible for accelerated rehabilitation,
he did not think that he was going to be deported when
he accepted the plea agreement providing for a sentence
of five years of incarceration, execution suspended,
with three years of probation because the agreement
did not require him to serve any jail time. The petitioner
testified that when he received the plea offer for three
years’ probation with no jail time, he told Skiber that
he wanted to consult an immigration lawyer, and that
Skiber represented to him that the deal was ‘‘as good
as it would get’’ because, if he rejected the offer, he
would have to proceed to trial, which would be risky
considering that it would be the petitioner’s word
against that of the police officers. Further, the petitioner
testified that he would not have accepted the plea offer
if he knew that he was going to be deported and that
he instead would have proceeded to trial.
Skiber testified that he had notified the petitioner
early on in the case that a conviction for the offenses he
faced would lead to his deportation. When the petitioner
received the plea offer that included two years of jail
time, Skiber testified that he recommended to the peti-
tioner that he not take the offer because the petitioner
‘‘had some leverage’’ with a suppression issue and the
offer entailed jail time and certain deportation.5 Skiber
later reiterated in his testimony that he had told the
petitioner early on in the case that ‘‘a felony of this
magnitude was a definite deportation.’’ Despite testi-
fying that the petitioner’s criminal case had a ‘‘great’’
suppression issue, he also testified that he did not file
a motion to suppress because, in his opinion, motions to
suppress were rarely granted in the Stamford criminal
court, and, if the petitioner did not succeed on such a
motion, he would have lost all leverage to negotiate a
more favorable plea deal.
As to the plea offer made on June 3, 2015, pursuant
to which which the petitioner was to enter an open
guilty plea that would be vacated if he paid a $10,000 fine
and was deemed eligible for accelerated rehabilitation,
Skiber testified that he was unsure as to whether he
notified the petitioner on that date that accepting the
plea offer may impact his immigration status, but he
once again reiterated that he did tell the petitioner early
on in the criminal case that ‘‘a conviction of this sort
would be a deportable offense, guaranteed.’’ Later in
his testimony, Skiber testified that before the petitioner
pleaded guilty he went through the plea canvass with
him, which included a question regarding the petition-
er’s understanding that the plea could result in his
deportation. On the basis of several discussions with
the petitioner, Skiber testified that the petitioner knew
that he would be deported if he pleaded guilty.
When it was determined that the petitioner was ineli-
gible for accelerated rehabilitation, Skiber testified that
he negotiated a sentence that entailed a no jail resolu-
tion on the petitioner’s behalf. Skiber testified that he
again went over the plea canvass with the petitioner
and that he ‘‘can’t say . . . hundred percent sure that
[he] told [the petitioner] it was going to—it was
deportable . . . .’’ Further, Skiber again testified that
it was his impression that the petitioner understood,
from earlier conversations between the two of them,
that he would be deported if he was ineligible for accel-
erated rehabilitation.
On July 26, 2017, the habeas court denied the petition-
er’s petition for a writ of habeas corpus. In its memoran-
dum of decision, the court first credited the testimony
of Skiber in determining that his performance was not
constitutionally deficient. Specifically, the court found
that Skiber had informed the petitioner that a conviction
for possession of marijuana with intent to sell would
lead to certain deportation, and that ‘‘counsel was clear
and unambiguous throughout the criminal litigation as
to the certainty of deportation.’’ Moreover, the court
determined that any erroneous advice given to the peti-
tioner was provided by the immigration attorney that
the petitioner was unable to identify.
The court also determined that the petitioner was not
prejudiced by Skiber’s allegedly deficient performance
because the petitioner failed to establish that avoiding
deportation was the determinative issue in his case. In
its memorandum of decision, the court noted that the
petitioner was not asked if he would have accepted a
plea deal that included a period of incarceration in
exchange for pleading guilty to charges that were less
likely to result in his deportation. The court also
observed that the petitioner did not present any evi-
dence to demonstrate that he would have been offered
the opportunity to participate in another pretrial diver-
sionary program. Finally, the court opined that, in the
department’s petition to remove the petitioner from
the United States, it cited two grounds justifying the
removal of the petitioner that were irrelevant to his
criminal conviction. The court subsequently granted the
petitioner’s petition for certification to appeal, and the
petitioner timely filed the present appeal. Additional
facts will be set forth as necessary.
We begin our analysis by setting forth the relevant
standard of review and legal principles that inform our
analysis. ‘‘A criminal defendant is constitutionally enti-
tled to adequate and effective assistance of counsel at
all critical 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
assistance of counsel. . . .
‘‘A claim of ineffective assistance of counsel is gov-
erned by the two-pronged test set forth in Strickland
v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984)]. Under Strickland, the petitioner
has the burden of demonstrating that (1) counsel’s rep-
resentation fell below an objective standard of reason-
ableness, and (2) counsel’s deficient performance preju-
diced the defense because there was a reasonable
probability that the outcome of the proceedings would
have been different had it not been for the deficient
performance. . . . For claims of ineffective assistance
of counsel arising out of the plea process, the United
States Supreme Court has modified the second prong of
the Strickland test to require that the petitioner produce
evidence that there is a reasonable probability that, but
for counsel’s errors, [the petitioner] would not have
pleaded guilty and would have insisted on going to trial.
. . . An ineffective assistance of counsel claim will suc-
ceed only if both prongs [of Strickland] are satisfied.
. . . It is axiomatic that courts may decide against a
petitioner on either prong [of the Strickland test],
whichever is easier.’’ (Citations omitted; footnote omit-
ted; internal quotation marks omitted.) Flomo v. Com-
missioner of Correction, 169 Conn. App. 266, 277–78,
149 A.3d 185 (2016), cert. denied, 324 Conn. 906, 152
A.3d 544 (2017). ‘‘In its analysis, a reviewing court may
look to the performance prong or the prejudice prong,
and the petitioner’s failure to prove either is fatal to a
habeas petition.’’ (Internal quotation marks omitted.)
Colon v. Commissioner of Correction, 179 Conn. App.
30, 36, 177 A.3d 1162 (2017), cert. denied, 328 Conn.
907, 178 A.3d 390 (2018).
‘‘A claim of ineffective assistance of counsel raised
by a petitioner who faces mandatory deportation as a
consequence of his guilty plea is analyzed more particu-
larly under Padilla v. Kentucky, [supra, 559 U.S. 356]
. . . .’’ Noze v. Commissioner of Correction, 177 Conn.
App. 874, 885, 173 A.3d 525 (2017). ‘‘In Padilla v. Ken-
tucky, [supra, 369], the United States Supreme Court
concluded that the federal constitution’s guarantee of
effective assistance of counsel requires defense counsel
to accurately advise a noncitizen client of the immigra-
tion consequences of a guilty plea. In reaching this
conclusion, the Supreme Court acknowledged that the
precise advice counsel must give depends on the clarity
of the consequences specified by federal immigration
law. . . . The precise consequences depend on a num-
ber of factors, including the crime committed, the cli-
ent’s criminal history and immigration status, and in
some circumstances the exercise of discretion by fed-
eral authorities.’’ (Citation omitted.) Budziszewski v.
Commissioner of Correction, 322 Conn. 504, 511, 142
A.3d 243 (2016).
In Budziszewski, our Supreme Court specifically set
forth the advice criminal defense counsel must provide
to a noncitizen client who is considering pleading guilty
to a crime in which deportation pursuant to federal law
is a consequence of a conviction. ‘‘For crimes desig-
nated as aggravated felonies . . . federal law man-
dates deportation almost without exception. . . . We
conclude that, for these types of crimes, Padilla
requires counsel to inform the client about the deporta-
tion consequences prescribed by federal law. . . .
Because noncitizen clients will have different under-
standings of legal concepts and the English language,
there are no precise terms or one-size-fits-all phrases
that counsel must use to convey this message. Rather,
courts reviewing a claim that counsel did not comply
with Padilla must carefully examine all of the advice
given and the language actually used by counsel to
ensure that counsel explained the consequences set out
in federal law accurately and in terms the client could
understand. In circumstances when federal law man-
dates deportation and the client is not eligible for relief
under an exception to that command, counsel must
unequivocally convey to the client that federal law man-
dates deportation as the consequence for pleading
guilty.’’ (Citations omitted.) Id., 507.
‘‘The [ultimate] conclusions reached by the [habeas]
court in its decision [on a] habeas petition are matters
of law, subject to plenary review. . . . [When] the legal
conclusions of the court are challenged, [the reviewing
court] must determine whether they are legally and
logically correct . . . and whether they find support
in the facts that appear in the record. . . . To the extent
that factual findings are challenged, this court cannot
disturb the underlying facts found by the habeas court
unless they are clearly erroneous. . . . [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 convic-
tion that a mistake has been committed. . . . A
reviewing court ordinarily will afford deference to those
credibility determinations made by the habeas court on
the basis of [the] firsthand observation of [a witness’]
conduct, demeanor and attitude.’’ (Citation omitted;
internal quotation marks omitted.) Flomo v. Commis-
sioner of Correction, supra, 169 Conn. App. 278–79.
Mindful of these legal principles, we next turn to the
petitioner’s sole claim on appeal that the court improp-
erly rejected his claim that he received ineffective assis-
tance of counsel due to his attorney’s failure to advise
him properly of the immigration consequences of his
guilty plea. We need not examine Skiber’s representa-
tion of the petitioner under the performance prong
because the petitioner has failed to demonstrate that
he was prejudiced by Skiber’s allegedly deficient per-
formance.
The petitioner argues that the court improperly con-
cluded that he was not prejudiced as a result of Skiber’s
deficient performance. Specifically, he argues that, pur-
suant to the United States Supreme Court’s decision in
Lee v. United States, U.S. , 137 S. Ct. 1958, 198
L. Ed. 2d 476 (2017), he demonstrated at the habeas trial
that he was prejudiced because there was a reasonable
probability that he would not have pleaded guilty if he
had known that it would lead to mandatory deportation.
We disagree.
In order to assess the petitioner’s claim on appeal, a
review of Lee is necessary. In Lee, the defendant, a
lawful permanent resident from South Korea, appealed
from the denial of his motion to vacate his conviction,
claiming that he had received ineffective assistance of
counsel due to his defense counsel’s failure to advise
him of the immigration consequences of his guilty plea
pursuant to Padilla. Id., 1962. It was undisputed that
defense counsel deficiently performed because the
defendant was erroneously advised that he would not
be deported as a result of pleading guilty to possession
of ecstasy with intent to distribute, an aggravated fel-
ony. Id., 1963. As a result, the sole issue on appeal
was whether the defendant had been prejudiced by his
defense counsel’s deficient performance. Id., 1964.
The court, in accordance with its prior decision in
Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed.
2d 203 (1985), determined that ‘‘[w]hen a defendant
alleges his counsel’s deficient performance led him to
accept a guilty plea rather than go to trial,’’ ‘‘[w]e . . .
consider whether the defendant was prejudiced by the
denial of the entire judicial proceeding . . . to which
he had a right. . . . [W]hen a defendant claims that his
counsel’s deficient performance deprived him of a trial
by causing him to accept a plea, the defendant can
show prejudice by demonstrating a reasonable proba-
bility that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to
trial.’’ (Citations omitted; internal quotation marks omit-
ted.) Lee v. United States, supra, 137 S. Ct. 1965. The
court recognized that a criminal defendant who faces
deportation as a consequence of his or her guilty plea
may instead insist on proceeding to trial even if the
chances of success are remote because there remains
a possibility at trial that the defendant will be acquitted
and will not face the onerous punishment of deporta-
tion. Id., 1966–67. Nevertheless, the court emphasized
that a post hoc assertion that an individual would not
have pleaded guilty but for his or her attorney’s deficient
performance was not enough to establish prejudice
absent contemporaneous evidence to support such an
assertion. Id., 1967.
The court determined that the defendant’s claim that
he would not have accepted the plea agreement had he
known that it would lead to deportation was ‘‘backed
by substantial and uncontroverted evidence.’’ Id., 1969.
The court further explained that ‘‘[i]n the unusual cir-
cumstances of this case,’’ the defendant adequately
demonstrated a reasonable probability that he would
not have pleaded guilty had he known that it would
lead to mandatory deportation and that he instead
would have proceeded to trial. Id., 1967. To support its
conclusion, the court stated that there was ‘‘no ques-
tion’’ that deportation was the determinative issue in
the defendant’s decision to enter a guilty plea. Id. The
court noted that the defendant repeatedly asked his
attorney if there was any risk of deportation, both the
defendant and his attorney testified at a hearing on
his motion to vacate his conviction that the defendant
would have gone to trial had he known about the depor-
tation consequences associated with his guilty plea, and
that the defendant, when asked during his plea canvass
if the possibility that he could be deported affected his
decision to plead guilty, answered in the affirmative
and only proceeded to plead guilty once his defense
counsel assured him that the judge’s question was a
‘‘standard warning.’’ Id., 1967–68.
Additionally, the court recognized that the defendant
had strong connections to the United States since he
had lived in the country for three decades and was
caring for his elderly parents, and that the consequences
of taking a chance at trial to avoid deportation were
not significantly harsher than pleading guilty and facing
certain deportation because the defendant faced only
a year or two of additional prison time if he went to
trial as opposed to pleading guilty. Id., 1968–69.
The court concluded ‘‘[w]e cannot agree that it would
be irrational for a defendant in [the defendant’s] posi-
tion to reject the plea offer in favor of trial. But for his
attorney’s incompetence, [the defendant] would have
known that accepting the plea agreement would cer-
tainly lead to deportation. Going to trial? Almost cer-
tainly. If deportation were the ‘determinative issue’ for
an individual in plea discussions, as it was for [the
defendant]; if that individual had strong connections to
this country and no other, as did [the defendant]; and
if the consequences of taking a chance at trial were not
markedly harsher than pleading, as in this case, that
[almost certainty of being deported] could make all the
difference.’’ (Emphases in original.) Id. Applying the
rationale of Lee, we now turn to the petitioner’s claim.
The petitioner argues that he was concerned about
being deported during the duration of the criminal pro-
ceedings against him and that, like the defendant in
Lee, there is substantial evidence to support his asser-
tion that he would not have pleaded guilty if he had
known that it would lead to mandatory deportation.
We reject the petitioner’s claim.
The habeas court credited Skiber’s testimony that
avoiding ‘‘double digit’’ incarceration was the petition-
er’s primary concern.6 To support its conclusion, the
habeas court found credible Skiber’s testimony that
proceeding to trial, even with a ‘‘good’’ suppression
issue, was ‘‘extremely risky’’ given that the petitioner
was facing a ‘‘double digit’’ period of incarceration if
found guilty. The habeas court further cited Skiber’s
testimony that he needed to weigh the prospect of the
petitioner accepting an offer and being exposed to no
jail time versus losing at trial and facing ‘‘astronomical’’
criminal exposure.7 Skiber described the petitioner’s
potential criminal exposure as a ‘‘huge consideration,’’
along with the immigration consequences of his plea.8
Additionally, as noted in the habeas court’s memoran-
dum of decision, there was no evidence presented at
the habeas trial to suggest that the petitioner would
have been willing to accept a plea deal that included
a longer sentence in exchange for pleading guilty to
offenses that were less likely to lead to his deportation.
The record is also devoid of any evidence that the peti-
tioner, after being deemed ineligible for accelerated
rehabilitation, would have been offered an alternative
pretrial diversionary program.
In addition, the petitioner’s testimony that he would
have proceeded to trial had he known the immigration
consequences of his guilty plea was belied by testimony
adduced at the habeas trial that the petitioner was at
least aware of the potential immigration consequences
he faced as a result of his guilty plea. See United States
v. Delhorno, 915 F.3d 449, 454 (7th Cir. 2019) (defendant
not prejudiced given likelihood of conviction and long
sentence in addition to defendant’s awareness of immi-
gration issues); Dodd v. United States, 709 Fed. Appx.
593, 595 (11th Cir. 2017) (defendant who was aware of
possibility of deportation and did not show concern
about deportation at plea hearing or sentencing was
not prejudiced by deficient performance). The habeas
court noted in its memorandum of decision that ‘‘[o]f
the utmost import,’’ the petitioner testified that he
understood that, after he entered his guilty plea and
applied for accelerated rehabilitation, he would be
deported if he was found ineligible for accelerated reha-
bilitation, but later stated that he did not think that he
would be deported when he pleaded guilty. Moreover,
Skiber testified that, on several occasions, the two of
them had discussed the immigration issues associated
with the petitioner’s case and that it was his understand-
ing that the petitioner knew of the immigration conse-
quences.
Skiber also testified that he twice went through the
plea canvass with the petitioner; once prior to the peti-
tioner entering his guilty plea and once after the peti-
tioner had agreed to a sentence of five years’ incarcera-
tion, execution suspended, with three years of
probation. The petitioner stated on the record during
the trial court’s canvass that he understood that his
guilty plea may lead to his deportation. In contrast, as
previously noted, the defendant in Lee expressed on
the record during the plea canvass that the possibility
that he could be deported affected his decision to plead
guilty and he did not proceed to plead guilty until he
was reassured by his counsel that the judge’s question
was only a ‘‘standard warning.’’ Lee v. United States,
supra, 137 S. Ct. 1967–68.
Unlike the defendant in Lee, the punishment the peti-
tioner in the present case faced if he went to trial was
markedly harsher than the punishment he received as
a result of his guilty plea. As previously discussed, the
habeas court stated in its memorandum of decision that
the petitioner faced several felony charges, some of
which carried a mandatory minimum sentence, if he
proceeded to trial. The trial court also remarked at the
plea canvass that the petitioner faced twelve years of
exposure for the charges to which he ultimately pleaded
guilty. In contrast, the petitioner’s plea agreement
resulted in a suspended sentence and three years of pro-
bation.9
On the basis of our review of the record, we conclude
that the habeas court’s conclusion is legally and logi-
cally correct and is supported by the facts that appear
in the record. Accordingly, we hold that the petitioner
has failed to demonstrate that he was prejudiced by his
counsel’s allegedly deficient performance because he
did not adequately demonstrate a reasonable probabil-
ity that he would not have pleaded guilty had he known
that it would lead to certain deportation and that he
instead would have proceeded to trial.10 Accordingly,
the petitioner’s claim of ineffective assistance of coun-
sel must fail.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although the parties did not disclose what crimes the petitioner was
initially charged with, we may take judicial notice of the file in the underlying
criminal case. See St. Paul’s Flax Hill Co-operative v. Johnson, 124 Conn.
App. 728, 739 n.10, 6 A.3d 1168 (2010), cert. denied, 300 Conn. 906, 12 A.3d
1002 (2011).
2
The record does not disclose the exact charge to which the petitioner
would have pleaded guilty.
3
The petitioner testified at the habeas trial that his understanding of the
offer was that he would receive two years of incarceration followed by
three years of probation. The specific nature of this plea offer is immaterial
to the resolution of this appeal.
4
General Statutes § 54-56e (b) (2) provides in relevant part: ‘‘The court
may, in its discretion, invoke [accelerated rehabilitation] on motion of the
defendant or on motion of a state’s attorney or prosecuting attorney with
respect to a defendant . . . who has no previous record of conviction of
a crime . . . .’’
5
Skiber testified that he did not specifically tell the petitioner that this
offer would cause him to be deported.
6
We reiterate the well settled principle that ‘‘we must defer to the finder
of fact’s evaluation of the credibility of the witnesses that is based on its
invaluable firsthand observation of their conduct, demeanor and attitude.
. . . [The fact finder] is free to juxtapose conflicting versions of events and
determine which is more credible. . . . It is the [fact finder’s] exclusive
province to weigh the conflicting evidence and to determine the credibility
of witnesses. . . . The [fact finder] can . . . decide what—all, none or
some—of a witness’ testimony to accept or reject.’’ (Citation omitted; inter-
nal quotation marks omitted.) State v. Colon, 117 Conn. App. 150, 154, 978
A.2d 99 (2009).
7
The habeas court stated in its memorandum of decision that the petitioner
would have faced at trial several felony charges, some of which required
mandatory minimum periods of incarceration. According to the habeas
court, once the petitioner agreed to a plea deal, the state did not pursue
those charges.
8
Skiber specifically testified that ‘‘if we weren’t successful [on a motion
to suppress], the maximum penalties he would be facing would be astronomi-
cal. And that was, you know, a huge consideration just as immigration issues
were also our consideration . . . if not more.’’ (Emphasis added.)
9
We acknowledge that, like the defendant in Lee, the petitioner does have
strong personal ties to the United States and nowhere else. Nevertheless,
the ties to the United States are only one factor to consider in determining
whether he was prejudiced by Skiber’s allegedly deficient performance. As
we have set forth in this opinion, aside from his ties to the United States,
the petitioner’s case is materially distinguishable from Lee.
10
Additionally, the petitioner essentially argues in his appellate brief that
the habeas court, while addressing the prejudice prong in its analysis, errone-
ously factored into its ruling the fact that the department listed other grounds
besides his criminal conviction as justification for deporting him. Specifi-
cally, the petitioner states that this conclusion was erroneous because he
was in the process of securing documentation to remain in the country at
the time of his arrest and the United States had never tried to deport him
before learning of his criminal conviction. Even if we were to agree with
the petitioner that the habeas court erred in this respect, it does not affect
the propriety of our decision.