Smorodska v. Commissioner of Correction ( 2022 )

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ANNA SMORODSKA v. COMMISSIONER
OF CORRECTION
(AC 44881)
Alvord, Cradle and DiPentima, Js.
Syllabus
The petitioner, who had been convicted, on a plea of guilty, of, inter alia,
arson in the first degree, sought a writ of habeas corpus, claiming that
her trial counsel, S, rendered ineffective assistance by failing to properly
advise her about the immigration consequences of her pleading guilty.
The petitioner was born in Ukraine, entered the United States on a
temporary visa that had expired, and was not lawfully residing in the
country at the time of her arrest and conviction. S testified at the habeas
trial that he advised the petitioner that arson in the first degree consti-
tuted an aggravated felony that subjected the petitioner to deportation
and removal, that the assumption and the presumption should be that
she would be deported or removed, and that he made no representation
to the petitioner that anything could occur aside from her being deported
for an aggravated felony conviction. S further testified that he informed
the petitioner that a plea pursuant to North Carolina v. Alford (400 U.S.
25) ‘‘may or may not’’ have an effect on the matters considered by
immigration officials, but it would not rescue her from being deported
or reduce the strength of the case the immigration authorities had against
her. The petitioner ultimately pleaded guilty pursuant to the Alford
doctrine. Following trial, the habeas court denied the petition for a writ
of habeas corpus, finding that S had unequivocally conveyed to the
petitioner that the immigration consequences of her guilty plea to a
charge of arson in the first degree was deportation mandated by federal
law, that there was no credible evidence that S failed to adequately
advise or affirmatively misadvised the petitioner about the deportation
consequences of her plea agreement, and that the likelihood of deporta-
tion was sufficiently explained to the petitioner. On the petitioner’s
appeal to this court, held that the habeas court properly concluded that
S did not render deficient performance in advising the petitioner of the
immigration consequences of her Alford plea and properly rejected her
claim of ineffective assistance of counsel: S made no representation to
the petitioner that anything could occur aside from her being deported
for an aggravated felony conviction and, therefore, S’s advice to the
petitioner regarding the likelihood of her deportation resulting from her
plea to an aggravated felony was accurate, unequivocal, and comported
with the requirements of state and federal law; moreover, even assuming
that S’s advice expressed equivocation as to the likelihood of enforce-
ment, that advice did not negate the import of S’s repeated and unequivo-
cal advice stating that, regardless of his uncertainty as to the effect of
the Alford plea on immigration authorities, the clear consequence of
the petitioner’s Alford plea was deportation.
Argued September 15—officially released December 27, 2022
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, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
Robert L. O’Brien, assigned counsel, with whom, on
the brief, was Christopher Y. Duby, assigned counsel,
for the appellant (petitioner).
Meryl R. Gersz, deputy assistant state’s attorney, with
whom, on the brief, were Stephen J. Sedensky III, for-
mer state’s attorney, and Jo Anne Sulik, senior assistant
state’s attorney, for the appellee (respondent).
Opinion
DiPENTIMA, J. The petitioner, Anna Smorodska,
appeals from the judgment of the habeas court denying
her petition for a writ of habeas corpus. On appeal, the
petitioner claims that the court improperly concluded
that her trial counsel did not render ineffective assis-
tance in advising her about the immigration conse-
quences of her pleading guilty pursuant to the Alford
doctrine.1 We affirm the judgment of the habeas court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. The petitioner
was arrested on December 14, 2015, in connection with
allegations that she started fires in the middle of the
night in the yard of a residence of her former boyfriend
that caused damage to flammable, inflatable Christmas
decorations and to a corner of the house. The petitioner
admitted to police that she had burned love letters
in the yard and had attempted to burn the inflatable
decorations. The petitioner pleaded guilty pursuant to
the Alford doctrine to arson in the first degree in viola-
tion of General Statutes § 53a-111, threatening in the
second degree in violation of General Statutes (Rev. to
2015) § 53a-62, and criminal violation of a protective
order in violation of General Statutes § 53a-223. During
the plea process, the petitioner was represented by
Attorney Stephan Seeger. The trial court, Shaban, J.,
sentenced the petitioner to a total effective sentence
of three and one-half years of incarceration, followed
by six and one-half years of special parole. The peti-
tioner was born in Ukraine, entered the United States
on a temporary visa that expired in August, 2014, and
was not lawfully residing in the country at the time of
her arrest and conviction.
In an amended petition for a writ of habeas corpus,
filed in July, 2020, the petitioner alleged, inter alia, that
Seeger provided ineffective assistance of counsel by
failing to advise her adequately regarding the immigra-
tion consequences of her Alford plea.2 Following trial,
the habeas court, Oliver, J., issued a memorandum of
decision on June 18, 2021, denying the petition for a
writ of habeas corpus. The court concluded that the
petitioner had failed to establish deficient perfor-
mance.3 In so deciding, the court stated: ‘‘Attorney See-
ger testified at the habeas trial that he advised the
petitioner that arson in the first degree constituted an
‘aggravated felony’ that subjected the petitioner to
deportation and removal. He testified that he told her
that ‘the assumption and the presumption should be
that she would be deported or removed’ and that he
made no representation to the petitioner that anything
could occur aside from her being deported for an aggra-
vated felony conviction. Attorney Seeger further testi-
fied that he informed the petitioner that her Alford
plea ‘may or may not’ have an effect on the matters
considered by immigration officials, but it would not
rescue her from being deported or reduce the strength
of the case the immigration authorities had against her.
He testified that he did not discuss the federal enforce-
ment practices for deportation pursuant to an aggra-
vated felony conviction beyond advising the petitioner
that such a conviction would result in her deportation or
removal. . . . Given the foregoing, and after a careful
examination of the evidence, the court concludes that
Attorney Seeger unequivocally conveyed to the peti-
tioner that the immigration consequences of her guilty
plea to an arson in the first degree charge was deporta-
tion mandated by federal law. There is no credible evi-
dence that Attorney Seeger . . . failed to adequately
advise or affirmatively misadvise[d] the petitioner about
the deportation consequences of her plea agreement.
The likelihood of deportation was sufficiently explained
to the petitioner.’’ Thereafter, the petitioner filed a peti-
tion for certification to appeal, which the court granted.
This appeal followed.
On appeal, the petitioner claims that the court
improperly concluded that she had not established that
Seeger was deficient in his performance for failing to
advise her adequately of the immigration consequences
of her Alford plea. Specifically, she contends that Seeger
was ‘‘abundantly, bluntly clear in his immigration advice
in this case—until he was not. Advice cannot be clear
and unequivocal if a portion of that advice gives false
hope . . . . [Seeger] . . . testified that he advised the
petitioner that she should assume she would be
removed as a result of her conviction . . . . Although
he could not testify that he advised the petitioner that
her removal was a ‘certainty,’ his advice otherwise was
clear up to this point. However, that is when the topic
of the Alford plea crept into the conversations between
Seeger and the petitioner. By Seeger’s own admission,
he advised the petitioner that an Alford plea ‘may or
may not have an effect on what immigration authorities
[consider].’ His own words were ‘may or may not.’ . . .
That is equivocation.’’ (Footnotes omitted.) Alterna-
tively, she argues that Seeger’s ‘‘may or may not’’ advice
concerned the likelihood of enforcement and negated
the import of the overall immigration advice that he
had conveyed.
The following legal principles and standard of review
guide our analysis. ‘‘The sixth amendment to the United
States constitution, made applicable to the states
through the due process clause of the fourteenth
amendment, affords criminal defendants the right to
effective assistance of counsel. . . . Although a chal-
lenge to the facts found by the habeas court is reviewed
under the clearly erroneous standard, whether those
facts constituted a violation of the petitioner’s rights
under the sixth amendment is a mixed determination
of law and fact that requires the application of legal
principles to the historical facts of this case. . . . It is
well established that the failure to adequately advise a
client regarding a plea offer from the state can form
the basis for a sixth amendment claim of ineffective
assistance of counsel. . . . To succeed on a claim of
ineffective assistance of counsel, a habeas petitioner
must satisfy the two-pronged test articulated in Strick-
land v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984)]. . . . The petitioner has the
burden to establish that (1) counsel’s representation
fell below an objective standard of reasonableness, and
(2) counsel’s deficient performance prejudiced the
defense because there was a reasonable probability
that the outcome of the proceedings would have been
different had it not been for the deficient performance.
. . . An ineffective assistance of counsel claim will suc-
ceed only if both prongs [of Strickland] are satisfied.’’
(Citations omitted; emphasis omitted; internal quota-
tion marks omitted.) Duncan v. Commissioner of Cor-
rection, 171 Conn. App. 635, 646–48, 157 A.3d 1169,
cert. denied, 325 Conn. 923, 159 A.3d 1172 (2017).
‘‘A claim of ineffective assistance of counsel raised
by a petitioner who faces mandatory deportation as
a consequence of [her] guilty plea is analyzed more
particularly under Padilla v. Kentucky, [559 U.S. 356,
130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010)], a case in which
the United States Supreme Court held that counsel must
inform clients accurately as to whether a guilty plea
carries a risk of deportation.’’ (Internal quotation marks
omitted.) Olorunfunmi v. Commissioner of Correc-
tion, 211 Conn. App. 291, 305, 272 A.3d 716, cert. denied,
343 Conn. 929, 281 A.3d 1186 (2022). Our Supreme Court
analyzed Padilla under Connecticut law in Budziszew-
ski v. Commissioner of Correction, 322 Conn. 504, 142
A.3d 243 (2016), stating: ‘‘In Padilla . . . the United
States Supreme Court concluded that the federal consti-
tution’s guarantee of effective assistance of counsel
requires defense counsel to accurately advise a nonciti-
zen client of the immigration consequences of a guilty
plea. . . . [W]hen the immigration consequences
under federal law are clearly discernable, Padilla
requires counsel to accurately advise his client of those
consequences. . . . For some convictions, federal law
calls for deportation, subject to limited exceptions.
. . . In these circumstances, because the likely immi-
gration consequences of a guilty plea are truly clear,
counsel has a duty to inform his client of the deportation
consequences set by federal law.’’ (Citations omitted;
internal quotation marks omitted.) Id., 511–12.
‘‘In Budziszewski, our Supreme Court specifically
set forth the advice criminal defense counsel must pro-
vide to a noncitizen client who is considering pleading
guilty to a crime in which deportation pursuant to fed-
eral law is a consequence of a conviction.’’ Echeverria
v. Commissioner of Correction, 193 Conn. App. 1, 10,
218 A.3d 1116, cert. denied, 333 Conn. 947, 219 A.3d
376 (2019). In Budziszewski, our Supreme Court held:
‘‘For crimes designated as aggravated felonies . . .
federal law mandates deportation almost without
exception. . . . We conclude that, for these types of
crimes, Padilla requires counsel to inform the client
about the deportation consequences prescribed by fed-
eral law. . . . Because noncitizen clients will have dif-
ferent understandings 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
mandates 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
mandates deportation as the consequence for pleading
guilty.’’4 (Citations omitted.) Budziszewski v. Commis-
sioner of Correction, supra, 322 Conn. 507.
We first address the petitioner’s challenge to the
court’s determination that Seeger’s advice was unequiv-
ocal. She argues that, contrary to the court’s determina-
tion, Seeger’s advice failed to comply with the require-
ments of Padilla and Budziszewski because it was
equivocal. In analyzing this argument, we note that it
is undisputed that arson in the first degree, to which
charge the petitioner pleaded guilty, constitutes an
aggravated felony pursuant to 8 U.S.C. § 1101 (a) (43)
and that for such crimes federal law mandates deporta-
tion.5 Because the likely immigration consequences of
her Alford plea were ‘‘truly clear,’’ it was Seeger’s ‘‘duty
to inform his client of the deportation consequences
set by federal law.’’ (Internal quotation marks omitted.)
Id., 512, citing Padilla v. Kentucky, supra, 559 U.S. 369.
The following exchange, which is highlighted by the
petitioner’s argument, occurred between the petition-
er’s habeas counsel and Seeger:
‘‘Q. Do you recall . . . your discussion of the Alford
doctrine as it relates to immigration consequences in
working with the petitioner?
‘‘A. I indicated to her that she should assume that
any—any plea to arson one would be an aggravated
felony, that she would be deported. The Alford plea
may or may not have any effect on what immigration
authorities, you know, could consider but that she
should—she should assume that the Alford plea
wouldn’t rescue her. It could be a layer of protection
against the use of, you know, of her statements but that
she should assume that she would be deported because
of the aggravated felony.’’
The petitioner does not challenge the court’s finding
crediting Seeger’s testimony but argues that Seeger’s
use of the words ‘‘may or may not’’ renders his advice
equivocal as to the immigration consequences of the
petitioner’s Alford plea. Although the petitioner focuses
on one phrase in Seeger’s advice, we examine this claim
in light of our Supreme Court’s clarification of Padilla
that reviewing courts ‘‘must carefully examine all of
the advice given’’ to determine whether counsel
‘‘unequivocally convey[ed] to the client that federal law
mandates deportation as the consequence for pleading
guilty.’’ Budziszewski v. Commissioner of Correction,
supra, 322 Conn. 507.
Following the cross-examination of Seeger by coun-
sel for the respondent, the Commissioner of Correction,
the court asked Seeger to ‘‘unpack for us what you
meant in your response to [the petitioner’s counsel] as
it related to the Alford plea when you said something
like you told [the petitioner] that the Alford plea may
or may not have any effect on the deportation and
removal proceedings, that it would not protect her relat-
ing to the conviction but it may act as a shield against
the use of her statements.’’ Seeger responded, ‘‘my com-
ment to her was it would not help in the deportation
but that the immigration authorities are free to, sort of,
treat that type of plea whichever way they wish. I did
not think that they were bound, you know, to ignore
the plea because it was an Alford plea, and that was
the substance of the conversation.’’ The court then
asked: ‘‘Did you ever give any indication of any reduc-
tion in the strength of the immigration authority’s case
against her because of an Alford plea?’’ Seeger
responded, ‘‘I did not.’’ Although Seeger expressed
uncertainty as to what effect, if any, an Alford plea
might have on immigration authorities, he nonetheless
advised her that, despite his uncertainty, she should
‘‘assume’’ both that ‘‘the Alford plea wouldn’t rescue
her’’ and that ‘‘she would be deported’’ because arson
in the first degree is an aggravated felony.
In addition to the one statement of Seeger on which
the petitioner bases her claim, Seeger testified that he
advised the petitioner that the immigration conse-
quences of her Alford plea to arson in the first degree
were deportation or removal. He testified that (1) he
was aware of the petitioner’s immigration status, (2)
he was aware that arson in the first degree would be
considered an aggravated felony and (3) he advised her
that ‘‘a conviction for an aggravated felony would . . .
result in her deportation or removal.’’
As correctly stated by the habeas court, Seeger ‘‘made
no representation to the petitioner that anything could
occur aside from her being deported for an aggravated
felony conviction.’’ Accordingly, given the foregoing,
Seeger’s advice to the petitioner regarding the likeli-
hood of her deportation resulting from her plea to an
aggravated felony was accurate, unequivocal, and com-
ported with the requirements of Padilla and Budzis-
zewski.
The petitioner contends, alternatively, that, even if
Seeger’s advice regarding the immigration conse-
quences of her Alford plea satisfied the requirements
of Padilla, his specific advice that her plea ‘‘may or
may not have any effect on what immigration authori-
ties, you know, could consider’’ cast doubt on the likeli-
hood of enforcement and ‘‘undermined any clarity’’ of
the immigration advice he previously had conveyed. In
Budziszewski v. Commissioner of Correction, supra,
322 Conn. 515–16, our Supreme Court held: ‘‘If counsel
gave the advice required under Padilla, but also
expressed doubt about the likelihood of enforcement,
the court must also look to the totality of the immigra-
tion advice given by counsel to determine whether
counsel’s enforcement advice effectively negated the
import of counsel’s advice required under Padilla about
the meaning of federal law.’’ Assuming Seeger’s ‘‘may
or may not’’ advice expressed equivocation as to the
likelihood of enforcement, we conclude that that advice
did not negate the import of his repeated and unequivo-
cal advice stating that, regardless of his uncertainty as
to the effect of the Alford plea on immigration authori-
ties, the clear consequence of her Alford plea was
deportation. For the foregoing reasons, we conclude
that the habeas court properly concluded that Seeger
did not render deficient performance in advising the
petitioner of the immigration consequences of her
Alford plea and properly rejected her claim of ineffec-
tive assistance of counsel.
The judgment is affirmed.
In this opinion the other judges concurred.
1
See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970). ‘‘A guilty plea under the Alford doctrine is a judicial oxymoron
in that the defendant does not admit guilt but acknowledges that the state’s
evidence against him is so strong that he is prepared to accept the entry
of a guilty plea nevertheless. . . . A defendant often pleads guilty under
the Alford doctrine to avoid the imposition of a possibly more serious
punishment after trial.’’ (Citation omitted; internal quotation marks omitted.)
Robles v. Commissioner of Correction, 169 Conn. App. 751, 752 n.1, 153
A.3d 29 (2016), cert. denied, 325 Conn. 901, 157 A.3d 1146 (2017).
2
The petitioner also alleged in her amended petition that Seeger rendered
ineffective assistance of counsel in multiple other ways and additionally
alleged that her sentencing counsel, Attorneys Jason Messina and Charley
Kurmay, rendered ineffective assistance. The habeas court rejected all of
the petitioner’s claims. On appeal, the petitioner only challenges the habeas
court’s rejection of her claim that Seeger provided ineffective assistance in
connection with his advice regarding the immigration consequences of her
Alford plea.
3
The petitioner also argues that, although the court did not address the
prejudice prong, this court may determine that she satisfied that prong
based on the record. The respondent, the Commissioner of Correction,
argues that the court implicitly determined that the petitioner did not estab-
lish prejudice and that such conclusion was proper. Because we conclude
that the habeas court properly determined that Seeger had not performed
below an objective standard of reasonableness in advising the petitioner
regarding the immigration consequences of her Alford plea, we need not
reach the petitioner’s claim regarding prejudice. See Nieves v. Commis-
sioner of Correction, 169 Conn. App. 587, 597, 152 A.3d 570 (2016), cert.
denied, 324 Conn. 915, 153 A.3d 1288 (2017); id., 597 n.13 (well settled that
reviewing court can find against petitioner on either ground of Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
4
The petitioner does not challenge the court’s decision on the ground
that counsel failed to use terminology she could understand.
5
Neither party disputes the inapplicability of the limited exceptions to
deportation for aggravated felonies. See 8 U.S.C. § 1227 (a) (2) (A) (iii) (2018).