Bueno v. Commissioner of Correction , 173 Conn. App. 797 ( 2017 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
ELEONES BUENO v. COMMISSIONER
OF CORRECTION
(AC38662)
Prescott, Mullins and Beach, Js.
Argued March 21—officially released June 13, 2017
(Appeal from Superior Court, judicial district of
Tolland, Sferrazza, J.)
Vishal K. Garg, for the appellant (petitioner).
Nancy L. Walker, deputy assistant state’s attorney,
with whom, on the brief, were Stephen J. Sedensky III,
state’s attorney, and Randall Blowers, former special
deputy assistant state’s attorney, for the appellee
(respondent).
Opinion
BEACH, J. The petitioner, Eleones Bueno, appeals
following the denial of his petition for certification to
appeal from the judgment denying his petition for a
writ of habeas corpus. The dispositive issue is whether
the habeas court abused its discretion in so doing. We
conclude that it did not and, accordingly, dismiss the
appeal.
The petitioner is a citizen of the Dominican Republic
who was admitted as a lawful permanent resident of the
United States in 1992. On April 11, 2012, the petitioner
appeared before the trial court to enter into a plea
agreement concerning two separate criminal matters.
At that time, he was represented by Attorney Robert
Koetsch. The petitioner first pleaded guilty, in docket
number CR-11-0141887-S, to one count of larceny in the
fifth degree in violation of General Statutes § 53a-125a.
The petitioner then pleaded guilty, in docket number
CR-11-0141917-S, to one count of larceny in the second
degree in violation of General Statutes § 53a–123 (a)
(3). In its canvass of the petitioner, the court inquired
as to whether the petitioner had ‘‘had enough time to
talk with’’ Koetsch and whether he was ‘‘satisfied with
his legal advice’’; the petitioner responded affirmatively.
The court further advised the petitioner as follows: ‘‘If
you’re not a citizen of the United States, do you under-
stand the conviction for these offenses might have a
consequence of deportation, exclusion from admission
or denial of naturalization, pursuant to federal immigra-
tion law?’’ The petitioner answered, ‘‘Yes, sir.’’ The court
then found the pleas to be knowingly, intelligently and
voluntarily made with the assistance of competent
counsel. In accordance with the terms of the plea
agreement, the court sentenced the petitioner to a total
effective sentence of eighteen months incarceration and
three years of probation.
Eleven months later, the petitioner again appeared
before the trial court.1 At that time, he pleaded guilty,
in docket number CR-13-0415495-S, to one count of
escape in the first degree in violation of General Statutes
§ 53a-169, stemming from his failure to return to a ‘‘tran-
sitional supervision community release’’ facility. In can-
vassing the petitioner, the court informed the petitioner
that, as a result of his plea, he ‘‘could be deported,
excluded from the [United States], or denied naturaliza-
tion.’’ In response, the petitioner stated, ‘‘I understand.’’
The court sentenced the petitioner to a term of one
year incarceration, execution suspended after six
months, with one day of conditional discharge.
While the petitioner was incarcerated, the United
States Department of Homeland Security commenced
a removal proceeding against him. Its notice to appear
articulated two distinct grounds for removal. First, it
charged the petitioner with violating ‘‘[§] 237 (a) (2)
(A) (iii) of the Immigration and Nationality Act . . . as
amended, in that, at any time after admission, you have
been convicted of an aggravated felony . . . relating
to a theft offense . . . or burglary offense for which
the term of imprisonment [of] at least [one] year was
imposed.’’ Second, the notice charged the petitioner
with violating ‘‘[§] 237 (a) (2) (A) (ii) of the Immigration
and Nationality Act, as amended, in that, at any time
after admission, you have been convicted of two crimes
involving moral turpitude not arising out of a single
scheme of criminal misconduct.’’ Following a hearing,
the United States Immigration Court on February 20,
2014, issued an oral decision in which it found both
grounds proven and ordered the petitioner to be
removed to the Dominican Republic. The petitioner
filed an appeal from that decision, which the Board of
Immigration Appeals dismissed on June 9, 2014. In its
written decision, the Board of Immigration Appeals
expressly indicated that the removal order was predi-
cated solely on the petitioner’s convictions for larceny
in the second degree and larceny in the fifth degree
in violation of Connecticut law.2 The petitioner was
removed to the Dominican Republic in August, 2014.
Approximately three months after the immigration
court issued its removal order, the petitioner filed an
application for a writ of habeas corpus in the Superior
Court. The operative pleading, the petitioner’s April 30,
2015 amended petition, contains two intertwined claims
regarding the immigration consequences of his guilty
plea in docket number CR–11–0141917-S, to one count
of larceny in the second degree.3 Specifically, the peti-
tioner alleged that (1) his guilty plea ‘‘was not made
knowingly, intelligently, and voluntarily because [he]
did not know or understand [its] immigration conse-
quences’’ in violation of his right to due process, and
(2) Koetsch rendered ineffective assistance of counsel
by failing to properly research and advise him of those
consequences.4
The respondent, the Commissioner of Correction,
thereafter moved to dismiss the petition on mootness
grounds, alleging that, in light of the petitioner’s other
unchallenged convictions that would prevent the peti-
tioner’s reentry into the United States, the habeas court
could provide him no practical relief. Prior to the com-
mencement of trial on September 18, 2015, the court
discussed that motion with the parties. At that time,
the court deferred consideration of the matter due to
the representation of the petitioner’s habeas counsel
that a witness who was ‘‘necessary for the motion to
dismiss’’ had not yet arrived. A two day trial followed,
at which the court heard testimony from four individu-
als—the petitioner, Koetsch, Warren Murray, a prosecu-
tor for the state, and Justin Conlon, an immigration
attorney.
The petitioner testified via videoconference with the
aid of an interpreter. In his testimony, the petitioner
stated that Koetsch ‘‘never spoke about immigration
consequences’’ of his pleas with him. The petitioner
testified that, at the time that he entered his pleas, he
did not know that deportation would result from his
guilty pleas. He further testified that, if he had been
so advised, he ‘‘would have never [pleaded] guilty to
the crimes.’’
Koetsch offered contrasting testimony. He stated
unequivocally that he apprised the petitioner that ‘‘[h]e
will be deported’’ as a result of his guilty pleas. In a
colloquy with the petitioner’s habeas counsel, Koetsch
elaborated on his conversation with the petitioner
regarding the immigration consequences of a guilty
plea:
‘‘[The Petitioner’s Counsel]: . . . I see you told him
he will be deported?
‘‘[Koetsch]: Yes. Then we did have a conversation
regarding that and . . . he told me that he had a con-
versation with his father, after I had met with him at
the correctional facility, and [the petitioner] told me he
didn’t care if he got deported and that he would just
come back in the country anyway.
‘‘[The Petitioner’s Counsel]: Did you give him any
advice as to whether he would be able to come back
in the country?
‘‘[Koetsch]: I told him once he’s deported he’s not
going to be able to come back in. I don’t know how he
intended to come back in. I don’t get involved in how
they come back in the country.’’
Conlon testified on the petitioner’s behalf as to the
immigration consequences of the petitioner’s larceny
pleas, as well as his March 14, 2013 plea of guilty to
escape in the first degree. Conlon opined that the latter
conviction did not constitute an aggravated felony or
a crime involving moral turpitude under federal immi-
gration law. Conlon also acknowledged that the immi-
gration court had found that the petitioner’s convictions
of larceny in the second degree and larceny in the fifth
degree constituted crimes involving moral turpitude.
In addition, Conlon provided testimony regarding the
petitioner’s guilty plea to a crime involving the assault
of a public safety officer a decade earlier in Florida
(Florida plea).5 Conlon noted that the United States
Court of Appeals for the Second Circuit has held that,
under Connecticut law, a conviction of assaulting a
public safety officer for which a defendant was sen-
tenced to at least one year imprisonment constituted
an aggravated felony under federal immigration law.
See Canada v. Gonzales, 448 F.3d 560, 564–73 (2d Cir.
2006). Although he was not familiar with such an
offense under Florida law, Conlon opined that a felony
conviction of assaulting a public safety officer likely
would have adverse immigration consequences for a
defendant, provided that it was accompanied by ‘‘a one
year sentence or more . . . .’’
Days after the habeas trial concluded, the court
issued its memorandum of decision. In that decision, the
court first granted the respondent’s motion to dismiss,
finding that the matter was moot in light of the Florida
plea. In so doing, the court acknowledged that ‘‘[n]o
transcript [or] court record of the Florida proceeding
was introduced before this court. Neither party
requested that the court take judicial notice of the laws
of Florida concerning deferred adjudications nor sup-
plied reference to specific statutes governing that pro-
cedure. However, the petitioner testified at the habeas
hearing, and, on cross-examination, he recalled that he
entered a guilty plea in the Florida case. Also, his crimi-
nal history in 2013 disclosed a 2002 Florida felony
record for the offense in question.’’6 Accordingly, the
court found that, ‘‘[a]lthough the evidentiary record is
scant, the petitioner’s admission to pleading guilty in
Florida, in conjunction with his recorded criminal his-
tory corroborating the same, persuade this court that,
for purposes of immigration law, the petitioner would
be regarded as having been convicted of an aggravated
felony. This conviction forms an absolute bar to his
reentry into the United States.’’
The court continued: ‘‘Usually, this conclusion would
terminate the court’s adjudicative process. However, it
is possible that an appellate tribunal would disagree
with this court’s determination of a lack of subject
matter jurisdiction, either because of an insufficiency
of evidence regarding the Florida disposition or because
a legal conclusion that bar to reentry does not moot this
habeas case. Therefore, the court will, as an alternative,
also address the merits of the petitioner’s claims.’’ The
court noted that ‘‘[b]oth the petitioner’s due process
violation and ineffective assistance claims hinge on
proof that the petitioner was unaware that his guilty
plea to larceny second degree would automatically com-
pel his deportation by the federal authorities when he
decided to plead guilty to that charge . . . .’’ The court
then expressly credited Koetsch’s testimony that he
advised the petitioner that he definitely would be
deported as a result of his guilty plea to the charge of
larceny in the second degree. The court discredited the
petitioner’s testimony to the contrary, finding that ‘‘the
petitioner was prudently and adequately advised that
deportation was certain to follow his conviction.’’ The
court further found that ‘‘the [petitioner] decided to
accept the plea offer because the agreement signifi-
cantly reduced his possible prison sentence, he was
likely to be convicted of deportable offenses in any
event, and because of his misplaced reliance on his
father’s advice as to the ease with which he could return
to the United States legally or otherwise.’’ For those
reasons, the court concluded, ‘‘the amended petition
is dismissed, or, alternatively, denied.’’ The petitioner
subsequently filed a petition for certification to appeal
to this court, which the habeas court denied, and this
appeal followed.
‘‘When the habeas court denies certification to
appeal, a petitioner faces a formidable challenge, as we
will not consider the merits of a habeas appeal unless
the petitioner establishes that the denial of certification
to appeal amounts to an abuse of discretion.’’ Jefferson
v. Commissioner of Correction, 144 Conn. App. 767,
772, 73 A.3d 840, cert. denied, 310 Conn. 929, 78 A.3d
856 (2013). To prevail, the petitioner must demonstrate
‘‘that the issues are debatable among jurists of reason;
that a court could resolve the issues [in a different
manner]; or that the questions are adequate to deserve
encouragement to proceed further.’’ (Emphasis altered;
internal quotation marks omitted.) Simms v. Warden,
230 Conn. 608, 616, 646 A.2d 126 (1994).
At the outset, we note that two distinct issues are
presented in this appeal. The first concerns the question
of mootness; the second involves the merits of the peti-
tioner’s due process and ineffective assistance of coun-
sel claims. To demonstrate that the court abused its
discretion in denying certification to appeal, the peti-
tioner must establish that both issues satisfy the stan-
dard enunciated in Simms v. Warden, supra, 230
Conn. 616.
I
We first consider the mootness question, which impli-
cates the subject matter jurisdiction of the court. See
Council v. Commissioner of Correction, 286 Conn. 477,
486–87, 944 A.2d 340 (2008). ‘‘It is a well-settled general
rule that the existence of an actual controversy is an
essential requisite to appellate jurisdiction; it is not the
province of appellate courts to decide moot questions,
disconnected from the granting of actual relief or from
the determination of which no practical relief can fol-
low. . . . When . . . events have occurred that pre-
clude an appellate court from granting any practical
relief through its disposition of the merits, a case has
become moot.’’ (Internal quotation marks omitted.)
Rivera v. Commissioner of Correction, 254 Conn. 214,
225–26, 756 A.2d 1264 (2000). Our review of the question
of mootness is plenary. Council v. Commissioner of
Correction, supra, 487.
The present case involves a petitioner who has been
removed from this country by federal decree following
proceedings before the immigration court. In recent
years, our courts have considered the mootness ques-
tion in this context. The seminal decision is State v.
Aquino, 279 Conn. 293, 901 A.2d 1194 (2006), in which a
defendant, who had been residing illegally in the United
States, appealed from the trial court’s denial of his
motion to withdraw a guilty plea. Id., 294. In that motion,
the defendant claimed that his plea ‘‘was not knowingly
and voluntarily’’ made because counsel never advised
him of the ‘‘certainty of deportation as the result of the
plea.’’ Id. The trial court denied that motion and, while
an appeal was pending, the defendant was deported.
Id., 297. Our Supreme Court thereafter determined that
the defendant’s appeal was moot, stating: ‘‘The defen-
dant did not produce any evidence at the hearing on
his motion to withdraw his guilty plea—indeed, he did
not even claim—that he would be deported solely as
the result of his guilty plea. . . . There is no evidence
in the record as to the reason for his deportation. If it
was not the result of his guilty plea alone, then this
court can grant no practical relief . . . .’’ Id., 298. Our
appellate courts have adhered to that precedent on
numerous occasions. See, e.g., Quiroga v. Commis-
sioner of Correction, 149 Conn. App. 168, 174, 87 A.3d
1171 (observing that ‘‘Aquino requires proof that the
larceny plea was the exclusive basis of the petitioner’s
deportation, rather than a primary or likely one’’), cert.
denied, 311 Conn. 950, 91 A.3d 462 (2014); State v.
Chavarro, 130 Conn. App. 12, 17–18, 21 A.3d 541 (2011)
(appeal moot because defendant failed to establish that
his deportation was result of guilty plea alone).
The record reflects, and the respondent does not
dispute, that the petitioner’s removal was based solely
on his guilty plea to larceny in the second degree, as
the immigration court found that conviction to be both
an aggravated felony under federal immigration law
and one of two crimes involving moral turpitude. See
footnote 2 of this opinion. Accordingly, the ‘‘narrow
inquiry before us is whether there is evidence to suggest
that, in the absence of the [larcency in the second
degree] conviction underlying the present habeas peti-
tion, the petitioner would be allowed to reenter this
country or become a citizen.’’ St. Juste v. Commis-
sioner of Correction, 155 Conn. App. 164, 175, 109 A.3d
523, cert. granted, 316 Conn. 901, 111 A.3d 470 (2015);
see also State v. Aquino, supra, 279 Conn. 298–99 n.3
(noting that ‘‘there is no evidence to suggest that, in
the absence of the guilty plea, the defendant would be
allowed to reenter this country or become a citizen’’).
In the present case, the court’s mootness determina-
tion was predicated on its conclusion that the Florida
plea constituted an aggravated felony under federal
immigration law that was ‘‘an absolute bar to [the peti-
tioner’s] reentry into the United States.’’ Both at trial
and on appeal, the petitioner has challenged that deter-
mination.7 For two reasons, we conclude that the court’s
determination is untenable. First, the record does not
disclose the precise crime to which the petitioner
pleaded guilty under Florida law. As the Second Circuit
has noted with respect to aggravated felonies under
federal immigration law, ‘‘[t]o determine whether an
offense is a crime of violence . . . we must look to
the elements and the nature of the offense of conviction,
rather than to the particular facts relating to [the] peti-
tioner’s crime.’’ (Internal quotation marks omitted.)
Canada v. Gonzales, supra, 448 F.3d 565. The paucity
of evidence regarding the Florida plea precluded such
review in the present case, as the record before the
habeas court did not disclose the specific offense to
which the petitioner pleaded guilty under Florida law.
Second, although the petitioner acknowledges that a
plea to a crime involving the assault of a public safety
officer may give rise to adverse immigration conse-
quences, he maintains that it does so only in instances
in which a defendant receives a sentence of at least one
year.8 The Immigration and Nationality Act enumerates
dozens of aggravated felonies. See 8 U.S.C. § 1101 (a)
(43) (2012). Among those is ‘‘a crime of violence . . .
for which the term of imprisonment [is] at least one year
. . . .’’ 8 U.S.C. § 1101 (a) (43) (F) (2012). In Canada v.
Gonzales, supra, 448 F.3d 573, the Second Circuit held
that a ‘‘conviction for assaulting a peace officer, in viola-
tion of [General Statutes] § 53a-167c (a) (1), constitutes
a ‘crime of violence’ . . . thus permitting removal of
[the] [p]etitioner as an aggravated felon . . . .’’ In that
case, the petitioner was ‘‘sentenced to a total of four
years’ imprisonment . . . .’’ Id., 563.
In his appellate brief, the respondent avers ‘‘that the
offense of battery of a public safety officer meets the
definition of a crime of violence.’’9 It nonetheless
remains that the habeas court was presented with no
evidence that the petitioner received a ‘‘term of impris-
onment [of] at least one year’’ in connection with the
Florida plea, as federal law requires. See, e.g., United
States v. Martinez-Gonzalez, 286 Fed. Appx. 672, 673
(11th Cir. 2008) (noting that although defendant’s ‘‘prior
conviction for battery on a law enforcement officer
constituted a ‘crime of violence’ under [federal law]
. . . it did not meet the requirements of an ‘aggravated
felony’ because he was sentenced to less than one year
of imprisonment’’). The only evidence regarding the
terms of the Florida plea came during the petitioner’s
testimony, in which he acknowledged that he per-
formed community service after pleading guilty to the
unspecified criminal offense, but ‘‘was never impris-
oned.’’ The record, therefore, lacks evidence on which
the court could conclude that the petitioner’s plea to the
unspecified Florida offense constituted an aggravated
felony under federal immigration law that permanently
barred his reentry into the United States. See Placide
v. Commissioner of Correction, 167 Conn. App. 497,
501 n.1, 143 A.3d 1174 (considering additional convic-
tion that did not serve as basis of petitioner’s deporta-
tion and concluding that ‘‘we are not convinced that the
petitioner’s other conviction . . . would bar reentry as
a crime of moral turpitude’’), cert. denied, 323 Conn.
922, 150 A.3d 1150 (2016). Accordingly, the court
improperly determined that the petition was moot as
a result of the Florida plea.
II
That determination does not end our inquiry, as the
petitioner also must demonstrate that the merits of his
due process and ineffective assistance of counsel claims
are debatable among jurists of reason, could be resolved
in a different manner, or are adequate to deserve
encouragement to proceed further. Simms v. Warden,
supra, 230 Conn. 616. In resolving those claims, the
court expressly credited the testimony of Koetsch and
discredited the petitioner’s testimony as to whether the
petitioner was advised that deportation would result
from his guilty plea. As our Supreme Court recently
observed, an appellate court ‘‘does not . . . evaluate
the credibility of the witnesses. . . . Rather, [it] must
defer to the [trier of fact’s] assessment of the credibility
of the witnesses based on its firsthand observation of
their conduct, demeanor and attitude. . . . 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.’’ (Internal quotation marks omitted.)
Taylor v. Commissioner of Correction, 324 Conn. 631,
643–44, 153 A.3d 1264 (2017); see also Eastwood v.
Commissioner of Correction, 114 Conn. App. 471, 484,
969 A.2d 860 (appellate court does not second-guess
findings of habeas court related to credibility of wit-
nesses), cert. denied, 292 Conn. 918, 973 A.2d 1275
(2009). This court, therefore, cannot disturb those
determinations.
In light of its assessment of the relative credibility
of the testimony offered at trial by the petitioner and
Koetsch, as well as the admonition on immigration con-
sequences provided to the petitioner by the trial judge
during the plea canvass, the habeas court found that
‘‘the petitioner was prudently and adequately advised
that deportation was certain to follow his conviction’’
and that ‘‘the petitioner decided to accept the plea offer
because the agreement significantly reduced his possi-
ble prison sentence, he was likely to be convicted of
deportable offenses in any event, and because of his
misplaced reliance on his father’s advice as to the ease
with which he could return to the United States legally
or otherwise.’’ Those findings are substantiated by the
evidentiary record before us. We therefore conclude
that the petitioner cannot demonstrate that his due
process and ineffective assistance of counsel claims
are debatable among jurists of reason, could be resolved
in a different manner, or are adequate to deserve
encouragement to proceed further. Simms v. Warden,
supra, 230 Conn. 616. Accordingly, the court did not
abuse its discretion in denying the petition for certifica-
tion to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The petitioner was represented by Attorney Matthew Ramia at that pro-
ceeding.
2
Both the decision of the United States Immigration Court and the subse-
quent decision of the Board of Immigration Appeals reflect that the basis
of the removal order was the immigration court’s findings that (1) the
petitioner’s conviction for larceny in the second degree constituted an aggra-
vated felony under federal immigration law, and (2) his convictions for
larceny in the second degree and larceny in the fifth degree both constituted
‘‘crimes involving moral turpitude’’ thereunder.
3
As the petitioner reiterated in his appellate brief, he ‘‘is only challenging’’
his conviction for larceny in the second degree in this habeas action.
4
The petition also alleged that Koetsch rendered ineffective assistance
by failing to ‘‘make [his] immigration status . . . part of the plea bargaining
process . . . .’’ At trial, Koetsch testified that, in negotiating the petitioner’s
pleas, he asked the state to consider a ‘‘lesser larceny’’ charge that would
minimize the immigration consequences of a guilty plea. His attempt was
unsuccessful. Prosecutor Warren Murray, who handled the petitioner’s lar-
ceny pleas on behalf of the state, corroborated that testimony by providing
a detailed explanation as to why the state would not entertain such a request.
Even if the petitioner had offered to serve a greater total effective sentence,
Murray testified that he ‘‘would have wanted a robbery. It was a crime of
violence . . . where a citizen was struck and I would probably want some
type of conviction . . . I think society should know that he was engaged
in some type of behavior which was rather serious.’’
In that respect, we note that the long form information in CR-11-0141917-
S was admitted into evidence at the habeas trial. Count one alleged that
the petitioner committed robbery in the third degree in violation of General
Statutes § 53a-136 (a) and stated in relevant part that ‘‘at the City of Danbury
. . . at approximately 8:15pm, on or about the 22nd day of July 2011, [the
petitioner] did commit a robbery where in the course of committing a
larceny, he used or threatened the immediate use of physical force upon
another person for the purpose of overcoming resistance to the taking of
the property, to wit: he and/or another demanded money from [the victim]
and when refused he did strike [the victim] and took his wallet and cellular
phone . . . .’’ Count two of the information alleged that the petitioner com-
mitted larceny in the second degree, while the third and final count alleged
assault in the third degree in violation of General Statutes § 53a-61 (a) (1).
That count alleged in relevant part that the petitioner ‘‘with the intent to
cause physical injury to another person [caused] such injury to another
person, to wit: he did strike [the victim] in the head causing pain and/or
swelling . . . .’’ At the plea hearing, the trial court remarked to the peti-
tioner: ‘‘Sir, I understand you’re disappointed that you’re not receiving a
completely suspended sentence, but I want to tell you your attorney fought
very hard for you and, in fact, the state is giving you consideration in the
sense that the plea agreement, as I understand it, does not require a plea
to the robbery charge, which would require you to serve 85 percent.’’ In
this appeal, the petitioner has not raised any claim regarding Koetsch’s
alleged failure to make his immigration status part of the plea bargaining
process.
5
In his testimony at the habeas trial, the petitioner acknowledged that,
in 1999, he was arrested in Florida and charged with an unspecified offense
pertaining to the assault of a public safety officer. The petitioner further
testified that he ‘‘pled guilty’’ to that charge, for which he was ordered to
perform community service and ‘‘was never imprisoned.’’
6
The transcript of the petitioner’s March 14, 2013 plea hearing on the
charge of escape in the first degree was admitted into evidence at the habeas
trial. At the outset of that proceeding, a bail commissioner reviewed the
petitioner’s criminal history, stating in relevant part: ‘‘His most recent [con-
viction] was . . . April of 2012, for larceny second from a person. . . .
Also April of 2012 . . . a larceny five . . . . He has a Florida record dated
back to 2002, which was a felony.’’ The record before us contains no further
documentation of that unspecified offense.
7
As the petitioner’s counsel argued at the habeas trial, ‘‘there’s no reason
for this court to find that [the Florida plea] would be an aggravated felony
that would prevent the petitioner’s reentry or that [it] was an alternative
basis for deportation.’’
8
The respondent contends that this distinct claim was not presented to
the habeas court and, thus, is unpreserved. In response, the petitioner, citing
Michael T. v. Commissioner of Correction, 319 Conn. 623, 635 n.7, 126 A.3d
558 (2015), argues that his claim is ‘‘subsumed within or intertwined with
arguments related to the legal claim raised at trial.’’
We note that the respondent made no reference whatsoever to the Florida
plea in either his August 21, 2015 motion to dismiss or his accompanying
memorandum of law in support thereof. Rather, those pleadings focused
entirely on the petitioner’s larceny and escape pleas in Connecticut. The
respondent first mentioned the Florida plea during his cross-examination
of Conlon, the final witness at the September 18, 2015 proceeding. At that
time, the respondent informed the court that he had ‘‘a reasonable basis to
believe that the petitioner has been convicted of battery against a police
officer, a public safety officer in the state of Florida in 2002 or 2003.’’
9
Apart from being a crime of violence pursuant to 8 U.S.C. § 1101 (a)
(43) (F), the respondent has not identified any other basis on which the
Florida plea could constitute an aggravated felony under federal law.