VanDeusen v. Commissioner of Correction ( 2022 )

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SARA E. VANDEUSEN v. COMMISSIONER
OF CORRECTION
(AC 43895)
Prescott, Alexander and DiPentima, Js.
Syllabus
The petitioner, who had been convicted of several crimes in connection
with a shooting, sought a writ of habeas corpus, claiming, inter alia,
that her trial counsel rendered ineffective assistance when he failed to
request that the trial court instruct the jury regarding the elements
of the applicable sentence enhancement statute (§ 53-202k) and the
statutory (§ 53a-3 (19)) definition of firearm in § 53-202k with respect
to the charge of accessory to attempt to commit assault in the first
degree. The petitioner and another individual, K, had driven to the
residence of a woman, J, where K fired a handgun at the residence
before he and the petitioner drove away. The trial court imposed a five
year sentence enhancement on the petitioner’s conviction of being an
accessory to an attempt to commit assault in the first degree. The habeas
court denied the habeas petition, concluding that the jury unanimously
had determined that the state proved each element of § 53-202k and
that any error caused by the trial court’s failure to instruct the jury as
to the elements of § 53-202k was harmless beyond a reasonable doubt.
The habeas court further concluded that the petitioner failed to demon-
strate that the outcome of her trial or appeal would have been different
even if trial counsel had requested an instruction as to the elements of
§ 53-202k or objected to the court’s instruction concerning § 53-202k.
Held:
1. The petitioner could not prevail on her claim that her trial counsel provided
ineffective assistance by neglecting to request a jury instruction regard-
ing the elements of § 53-202k and the definition of firearm in § 53a-3
(19), or by failing to object to the instruction the court gave, which did
not define firearm or instruct as to the elements of § 53-202k: the jury’s
guilty verdict on the charge of attempted assault as an accessory was
predicated on the undisputed evidence the state presented that K dis-
charged a loaded handgun at J’s residence, from which the jury necessar-
ily found both that the state proved each element of § 53-202k and that
the handgun K used satisfied the definition of firearm in § 53a-3 (19);
moreover, because the jury necessarily accepted the state’s theory that
K had used a deadly weapon in the commission of the offense, it logically
followed that the handgun was a loaded weapon from which he dis-
charged gunshots at the residence, and, thus, the court’s failure to
instruct the jury as to the elements of § 53-202k was harmless beyond
a reasonable doubt; furthermore, because of the harmlessness of the
court’s failure to instruct the jury on the elements of § 53-202k, the
petitioner failed to meet her burden of proving that there was a reason-
able probability that, but for trial counsel’s failure to object to the court’s
instruction concerning § 53-202k, the result of the underlying criminal
proceeding would have been different.
2. This court declined to review the petitioner’s unpreserved claim that she
was prejudiced by her trial counsel’s failure to request that the jury be
instructed as to the definition of firearm in § 53-3 (19) because the
sentence enhancement under § 53-202k would not have applied if the
weapon K used was an assault weapon; the petitioner’s claim of preju-
dice, which she conceded was raised for the first time before this court,
was distinct from her allegation before the habeas court that she was
prejudiced by trial counsel’s failure to request a jury instruction as to
each element of § 53-202k or to otherwise object to the instruction the
court gave.
Argued September 9, 2021—officially released May 10, 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, Bhatt, J.; judgment denying the
petition, from which the petitioner, on the granting of
certification, appealed to this court. Affirmed.
James E. Mortimer, assigned counsel, for the appel-
lant (petitioner).
Marcia A. Pillsbury, assistant state’s attorney, with
whom, on the brief, were Dawn Gallo, state’s attorney,
and Kelly A. Masi, senior assistant state’s attorney, for
the appellee (respondent).
Opinion
PRESCOTT, J. The petitioner, Sara E. VanDeusen,
appeals from the judgment of the habeas court, denying
her petition for a writ of habeas corpus.1 On appeal,
the petitioner primarily claims that the habeas court
improperly concluded that she failed to demonstrate
that her trial counsel provided ineffective assistance by
neglecting to request a jury instruction setting forth the
statutory elements of General Statutes § 53-202k and,
more specifically, defining the term ‘‘firearm,’’ as used
in § 53-202k and defined in General Statutes § 53a-3
(19). She additionally claims on appeal that the habeas
court improperly concluded that she failed to demon-
strate that her trial counsel provided ineffective assis-
tance by neglecting to request that the court instruct
the jury that § 53-202k expressly excludes ‘‘assault
weapon[s]’’ from the term ‘‘firearm,’’ or otherwise to
object to the court’s instruction as to § 53-202k. We
affirm the judgment of the habeas court denying the
petition.
The following facts and procedural history are rele-
vant to the petitioner’s claim. The petitioner’s underly-
ing conviction stems ‘‘from a shooting that occurred
on the evening of January 10, 2009, in Torrington at the
residence of J.L.,* [J.L.’s] then three year old son, A.S.,
and [J.L.’s] boyfriend, Gregorio Rodriguez.
‘‘Prior to the shooting, the [petitioner] and J.L. were
good friends and had several mutual acquaintances,
including the [petitioner’s] roommate, Carlos Casiano,
as well as Alyssa Ayala and her boyfriend, Charles
Knowles. At some point, however, the relationship
between J.L. and Ayala became antagonistic because
J.L. had a sexual encounter with Knowles in October or
November, 2008. Once Ayala had learned of the encoun-
ter, she became angry with J.L. and threatened to ‘fuck
that bitch up for messing with [her] man . . . .’
‘‘At the same time, the relationship between Rodri-
guez and Knowles also became antagonistic. Both were
drug dealers, but belonged to two rival gangs. On Janu-
ary 9, 2009, Knowles and Rodriguez engaged in a fist-
fight at a local pub. As a result of the fight, Knowles
suffered a broken facial bone, for which he sought treat-
ment at a hospital the following day.
‘‘At the hospital, Knowles was accompanied by Ayala
and Casiano. While waiting at the hospital, the trio
discussed going to J.L.’s and Rodriguez’ residence to
‘get back at them.’ Ayala, however, was concerned that
neither Knowles nor she herself could participate in a
physical altercation.2 Ayala then called the [petitioner]
and explained to her the nature and extent of Knowles’
injury.
‘‘The [petitioner] later arrived at the hospital to pick
up Ayala and Knowles. Once she had seen the extent
of having Ayala fight J.L. because, according to the
[petitioner], J.L.’s sexual relationships with both Rodri-
guez and Knowles had instigated the fight at the pub
the previous night. Ayala thereafter placed several tele-
phone calls from a private number to J.L.’s residence,
trying to ascertain whether she and Rodriguez were
there by pretending to be someone else looking for
Rodriguez. Having nevertheless recognized Ayala as the
caller, J.L. told her that Rodriguez was home and further
remarked that [A.S.] was also at home.
‘‘Alarmed by Ayala’s calls, J.L. called the [petitioner]
and told her that Ayala was ‘trying to start problems
. . . .’ During that conversation, J.L. threatened to ‘kick
[Ayala’s] ass’ and stated that she had sexual intercourse
with Knowles throughout the entire time that Ayala had
been dating him. In addition, J.L. gave the [petitioner]
her new address, adding that Ayala could come over if
she wanted to have an altercation.
‘‘The [petitioner] then called Ayala and relayed to her
the essence of her conversation with J.L. and, once
again, volunteered to fight in Ayala’s stead. Knowles
overheard J.L.’s challenge and became ‘mad’ because
J.L. had threatened to beat up his pregnant girlfriend.
Knowles then called Casiano and asked Casiano to fight
Rodriguez. Knowles also told Casiano to come get him
at Ayala’s residence and to bring the [petitioner]
because ‘she was the only one [who] knew where [J.L.]
lived . . . .’ Knowles then mentioned to Casiano that
he had a gun. After the call to Casiano, Knowles also
called his mother in New York and told her that he
would be coming back there.
‘‘Thereafter, Casiano and the [petitioner] picked up
Knowles in a green van. Before leaving Ayala’s resi-
dence, Knowles retrieved a handgun3 from a shoe box
in a bedroom closet. The trio then headed to J.L.’s
residence. On the way to J.L.’s residence, the [petitioner]
saw that Knowles was armed. Despite her knowledge
of the handgun, after pulling up in front of J.L.’s resi-
dence, the [petitioner] called J.L. from her cellular
phone and asked her and Rodriguez to come out of the
house. Sensing trouble, J.L. refused to come out, hung
up the telephone, and turned off the lights in the living
room, which was facing the street.
‘‘Once the [petitioner], Casiano, and Knowles realized
that J.L. and Rodriguez were not going to come out,
Knowles opened the van’s door and fired his handgun
at the residence. Inside of the residence, Rodriguez
and J.L.’s friend, Casey Delmonte, who were watching
television in a back bedroom, heard ‘a very loud noise
. . . .’ When Delmonte went to the living room window
to investigate, she saw the taillights of a ‘bigger vehicle’
as it drove away. At that time, none of them realized
that they had heard the sound of gunshots.
‘‘Later that evening, however, J.L., Rodriguez, and
Delmonte discovered that a bullet had pierced the front
door window and lodged in a wall separating the entryway
and the bedroom where Rodriguez, Delmonte, and A.S.
had been watching television at the time of the shooting.
The bullet had struck the wall at four feet, two inches
above the floor. In addition, it was later discovered that
a second bullet had struck a supporting pillar on the
front porch of the residence.
‘‘Following the shooting, Knowles directed Casiano
and the [petitioner] to dispose of the gun by delivering
it to someone in Waterbury. Thereafter, Knowles and
Casiano went into hiding, ultimately ending up in New
York. Ayala later also joined Knowles in New York.
The [petitioner] did not leave Torrington following the
shooting. When the [petitioner] was later interviewed by
the police in connection with the shooting investigation,
she denied any knowledge of the shooting and stated
that she could not recall her whereabouts on the night
in question. The [petitioner] further stated that she did
not know Knowles and that she had not called J.L. on
the day of the shooting.
‘‘As a result of the investigation, the [petitioner] was
arrested on August 5, 2009, and charged with one count
of conspiracy to commit assault in the first degree in
violation of [General Statutes] §§ 53a-48 and 53a-59 (a)
(1); one count of being an accessory to an attempt to
commit assault in the first degree in violation of [Gen-
eral Statutes] §§ 53a-59 (a) (1), 53a-49 (a) (2) and 53a-
8; and one count of risk of injury to a child in violation
of [General Statutes] § 53-21 (a) (1). In addition, the
state sought to enhance the [petitioner’s] sentence on
all counts pursuant to § 53-202k.4
‘‘Following a trial, the jury found the [petitioner] guilty
as charged on all counts. Thereafter, the court sen-
tenced the [petitioner] to ten years incarceration, exe-
cution suspended after five years, followed by five years
enhancement, pursuant to § 53-202k, on each count, to
run concurrently, for a total effective sentence of fifteen
years incarceration, suspended after ten years, followed
by five years probation.’’ (Footnotes added; footnote in
original; footnotes omitted.) State v. VanDeusen, 160
Conn. App. 815, 818–21, 126 A.3d 604, cert. denied, 320
Conn. 903, 127 A.3d 187 (2015).
On direct appeal, the petitioner claimed ‘‘that (1) the
evidence was insufficient to support her conviction of
conspiracy and attempt to commit assault in the first
degree, and of risk of injury to a child, (2) the trial
court improperly instructed the jury on the elements
of conspiracy and attempt to commit assault in the
first degree, and (3) the court improperly enhanced her
sentence on the counts of conspiracy to commit assault
in the first degree and risk of injury to a child pursuant
to § 53-202k.’’ Id., 817. This court affirmed the judgment
of the trial court with respect to the first and the second
claims but agreed with the petitioner that the trial court
improperly enhanced her sentence on the counts of
conspiracy to commit assault in the first degree and
risk of injury to a child. Id. Accordingly, this court
affirmed the trial court’s judgment in part, reversed it
in part, and remanded the case to the trial court with
direction to vacate the sentence enhancements imposed
on counts one and three. See id., 850. Because, however,
this court’s decision did not alter the petitioner’s total
effective sentence5 and there was no evidence that the
decision would alter the trial court’s original sentencing
intent, this court concluded that the petitioner need not
be resentenced. See id., 850–51 n.22.
On March 10, 2016, the petitioner filed a petition for
a writ of habeas corpus. In the operative, amended
petition dated September 25, 2018, the petitioner raised
four claims. First, she alleged a freestanding sixth
amendment claim6 that her sentence on her conviction
of attempt to commit assault in the first degree improp-
erly was enhanced pursuant to § 53-202k because the
jury was not instructed on one or more of the elements
of § 53-202k, including the legal definition of ‘‘firearm,’’7
as defined in § 53a-3.8 See Apprendi v. New Jersey, 530
U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)
(defendant’s sixth amendment right to jury trial requires
that ‘‘any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be sub-
mitted to a jury, and proved beyond a reasonable
doubt’’); State v. Velasco, 253 Conn. 210, 225–26, 228,
751 A.2d 800 (2000) (holding pre-Apprendi that legisla-
ture had not intended to eliminate jury’s role as fact
finder during application of § 53-202k). Second, she
alleged that her trial counsel provided ineffective assis-
tance by failing to request a jury instruction regarding
the statutory elements of § 53-202k, including the defini-
tion of ‘‘firearm’’ as set forth in § 53a-3 (19). See General
Statutes § 53-202k. Third, she asserted that her appel-
late counsel provided ineffective assistance by failing
to raise a claim in her direct appeal that the trial court
had failed to instruct the jury on the elements of § 53-
202k. Finally, she alleged that the errors referenced in
the prior counts of her petition violated her right to
due process of law.
The habeas court conducted a trial on the petition
for a writ of habeas corpus on November 19, 2019. In
a memorandum of decision dated December 17, 2019,
the court denied the petition. The court stated that the
jury had found the petitioner guilty of attempted assault
in the first degree as an accessory on the premise that
a coparticipant had used a firearm in the commission
of the offense. The court also noted that the trial court
had submitted to the jury an interrogatory concerning
§ 53-202k, which inquired whether the state had proven
beyond a reasonable doubt that ‘‘the defendant or
another participant used, or was armed with and threat-
ened the use of, or displayed a firearm,’’ and had
instructed the jury to answer the interrogatory only if
it found the defendant guilty of attempted assault in
the first degree.9 The jury answered the interrogatory
affirmatively.10 Thus, because the jury had found the
petitioner guilty of attempted assault in the first degree
as an accessory, predicated on the theory that a copar-
ticipant had used a deadly weapon in the commission
of the offense, and had answered the corresponding
interrogatory affirmatively, the habeas court concluded
that the jury unanimously had determined that the state
had proven, beyond a reasonable doubt, each element
of § 53-202k—including that a coparticipant had used
a ‘‘firearm’’ in the commission of the attempted assault.
Therefore, the habeas court, citing State v. Beall, 61
Conn. App. 430, 435, 769 A.2d 708, cert. denied, 255
Conn. 954, 772 A.2d 152 (2001),11 determined that any
error caused by the trial court’s failure to instruct the
jury as to the elements of § 53-202k was harmless
beyond a reasonable doubt and, accordingly, the peti-
tioner had failed to meet her burden as to her first claim.
Moreover, the court concluded that the petitioner
had failed to meet her burden as to her second and
third claims. In light of the court’s determination that
any alleged error caused by the trial court’s failure to
instruct the jury as to the elements of § 53-202k was
harmless beyond a reasonable doubt, the court con-
cluded that the petitioner had failed to demonstrate
that, even if her trial counsel had requested an instruc-
tion as to the elements of § 53-202k or objected to the
court’s instruction concerning § 53-202k or if her appel-
late counsel had raised the issue on appeal, the outcome
of the trial or appeal would have been different. See
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984); Skakel v. Commissioner
of Correction, 329 Conn. 1, 30, 188 A.3d 1 (2018), cert.
denied, U.S. , 139 S. Ct. 788, 202 L. Ed. 2d 569(2019). The court also concluded that, because the peti-
tioner’s due process claim was ‘‘predicated on’’ the suc-
cess of her other claims, she likewise had failed to meet
her burden as to that claim. This appeal followed.12 Addi-
tional procedural history will be set forth as needed.
We begin by setting forth the principles of law that
govern claims of ineffective assistance of counsel, as
well as our standard of review for a challenge to the
denial of a petition for a writ of habeas corpus, both
of which are well settled. ‘‘A criminal defendant’s right
to the effective assistance of counsel extends through
the first appeal of right and is guaranteed by the sixth
and fourteenth amendments to the United States consti-
tution and by article first, § 8, of the Connecticut consti-
tution. . . . To succeed on a claim of ineffective assis-
tance of counsel, a habeas petitioner must satisfy the
two-pronged test articulated in Strickland v. Washing-
ton, [supra, 466 U.S. 687]. Strickland requires that a
petitioner satisfy both a performance prong and a preju-
dice prong. To satisfy the performance prong, a claim-
ant must demonstrate that counsel made errors so seri-
ous that counsel was not functioning as the counsel
guaranteed . . . by the [s]ixth [a]mendment. . . . 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.’’ (Citations omit-
ted; internal quotation marks omitted.) Small v. Com-
missioner of Correction, 286 Conn. 707, 712–13, 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).
‘‘In assessing prejudice under Strickland, the ques-
tion is not whether a court can be certain counsel’s
performance had no effect on the outcome or whether
it is possible a reasonable doubt might have been estab-
lished if counsel acted differently. . . . Instead, Strick-
land asks whether it is reasonably likely the result
would have been different. . . . This does not require
a showing that counsel’s actions more likely than not
altered the outcome, but the difference between Strick-
land’s prejudice standard and a more-probable-than-
not standard is slight and matters only in the rarest
case. . . . The likelihood of a different result must be
substantial, not just conceivable.’’ (Internal quotation
marks omitted.) Skakel v. Commissioner of Correction,
supra, 329 Conn. 40. ‘‘In a habeas proceeding, the peti-
tioner’s burden of proving that a fundamental
unfairness had been done is not met by speculation
. . . but by demonstrable realities.’’ (Internal quotation
marks omitted.) Davis v. Commissioner of Correction,
198 Conn. App. 345, 354, 233 A.3d 1106, cert. denied,
335 Conn. 948, 238 A.3d 18 (2020). ‘‘Because both prongs
. . . must be established for a habeas petitioner to pre-
vail, a court may dismiss a petitioner’s claim if he fails to
meet either prong.’’ (Internal quotation marks omitted.)
Antwon W. v. Commissioner of Correction, 172 Conn.
App. 843, 849–50, 163 A.3d 1223, cert. denied, 326 Conn.
909, 164 A.3d 680 (2017).
On appeal, ‘‘[a]lthough the underlying historical facts
found by the habeas court may not be disturbed unless
they were clearly erroneous, whether those facts consti-
tuted a violation of the petitioner’s [right to the effective
assistance of counsel] under the sixth amendment is a
mixed determination of law and fact that requires the
application of legal principles to the historical facts of
th[e] case. . . . As such, that question requires plenary
review by this court unfettered by the clearly erroneous
standard.’’ (Internal quotation marks omitted.) Gonza-
lez v. Commissioner of Correction, 308 Conn. 463, 469–
70, 68 A.3d 624, cert. denied sub nom. Dzurenda v.
Gonzalez, 571 U.S. 1045, 134 S. Ct. 639, 187 L. Ed. 2d
445 (2013).
I
We first address the petitioner’s principal claim on
appeal that the habeas court improperly concluded that
she failed to demonstrate that her trial counsel provided
ineffective assistance by neglecting to request a jury
instruction setting forth the statutory elements of § 53-
202k and, specifically, defining the term ‘‘firearm,’’ as
set forth in § 53a-3 (19); see General Statutes § 53-202k;
or otherwise object to the instruction that the court
provided regarding § 53-202k because it failed to set
forth the elements of § 53-202k by failing to define the
term ‘‘firearm,’’ as set forth in § 53a-3 (19).13 Because
we conclude that, even if the trial court had instructed
the jury as to the definition of the term ‘‘firearm,’’ as set
forth in § 53a-3 (19), and the other statutory elements
of § 53-202k, a reasonable probability does not exist
that the result of the underlying criminal proceeding
would have been different, we reject this claim.
The following additional procedural history is rele-
vant to our resolution of the petitioner’s claim. At the
conclusion of the trial, the court held a charge confer-
ence on the record. During the conference, the petition-
er’s trial counsel did not object that the proposed jury
instruction concerning § 53-202k improperly failed to
delineate each statutory element and state that the pros-
ecution was required to prove each element of § 53-
202k beyond a reasonable doubt or request that a jury
instruction be provided as to the statutory elements of
§ 53-202k. The petitioner’s trial counsel did not request
specifically that the jury be instructed as to the legal
definition of ‘‘firearm’’ under § 53-202k, as set forth in
§ 53a-3 (19), or object to the proposed jury instruction
because it failed to provide the definition of ‘‘firearm.’’
See General Statutes §§ 53-202k and 53a-3 (19). Subse-
quently, the court delivered its instructions to the jury.
The court instructed the jury, ‘‘[i]n count two, in the
event that you do find the [petitioner] guilty [of attempted
assault in the first degree], you have to answer the
interrogatory that’s going to be provided to you; it is
written, it is self-explanatory, your answer or response
to the interrogatory has to be unanimous.’’ The court
provided no further instruction as to the sentence
enhancement contained in § 53-202k and did not instruct
the jury as to the definition of the term ‘‘firearm.’’
In connection with the attempted assault charge,
which required the jury to find that the state had proven
beyond a reasonable doubt that the petitioner or a
coparticipant attempted to cause serious physical injury
to another person ‘‘by means of a deadly weapon or a
dangerous instrument’’; General Statutes § 53a-59 (a)
(1); see also General Statutes §§ 53a-49 (a) (2) and 53a-
8; the court instructed the jury as to the definition of
‘‘deadly weapon,’’ as set forth in § 53a-3 (6). Section
§ 53a-3 defines ‘‘deadly weapon’’ to mean ‘‘any weapon,
whether loaded or unloaded, from which a shot may
be discharged, or a switchblade knife, gravity knife,
billy, blackjack, bludgeon, or metal knuckles.’’ (Empha-
sis added.) General Statutes § 53a-3 (6). Thus, in accor-
dance with §§ 53a-3 and 53a-59, the court instructed
the jury in relevant part: ‘‘The statute defining [assault
in the first degree, § 53a-59] reads in pertinent part as
follows: A person is guilty of assault in the first degree
when, with intent to cause serious physical injury to
another person, he causes such injury to such a person
or to a third person by means of a deadly weapon or
a dangerous instrument. . . . The third [statutory] ele-
ment [of § 53a-59 (a) (1)] is that the defendant attempted
to cause [serious physical] injury by means of a deadly
weapon.’’ (Emphasis added.) The court also stated:
‘‘Deadly weapon is defined by [§ 53a-3 (6)] as any weapon,
whether loaded or unloaded, from which a shot may
be discharged. If the weapon is a firearm, it may be
unloaded, but it must be in such condition that a shot
may be discharged from it. . . . If the weapon is
unloaded, but in working order, it is a deadly weapon.’’
(Emphasis added.)
After it delivered the jury charge, the court asked the
parties whether they had any objection with respect to
the jury instructions. The petitioner’s trial counsel
raised no objection with respect to the court’s instruc-
tion regarding the interrogatory, the court’s failure to
delineate or define fully the statutory elements of § 53-
202k in its instruction, or the court’s failure to instruct
the jury as to the term ‘‘firearm,’’ as defined in § 53a-3
(19). The petitioner’s trial counsel, likewise, raised no
objection as to the court’s instruction concerning the
definition of ‘‘deadly weapon.’’
‘‘[W]hen an accused is convicted by a jury of an under-
lying felony, the question of whether the accused used
a proscribed firearm in the commission of that felony
must also be decided by the jury . . . .’’ State v. Vel-
asco, supra, 253 Conn. 214. Thus, ‘‘[a] jury, and not the
trial court, is required to determine whether a defendant
has used a firearm in the commission of a class A, B
or C felony for purposes of § 53-202k.’’ State v. Mont-
gomery, 254 Conn. 694, 736–37, 759 A.2d 995 (2000);
see also State v. Beall, supra, 61 Conn. App. 435 (same).
If, however, ‘‘there is no question that the jury’s finding
necessarily satisfied the two requirements of § 53-202k,
the court’s failure to instruct the jury regarding the
elements of § 53-202k is harmless beyond a reasonable
doubt.’’14 State v. Beall, supra, 435; see also State v.
Montgomery, supra, 737–38 (analyzing whether court’s
failure to instruct jury regarding statutory elements of
§ 53-202k was harmless). Accordingly, if we conclude
that the jury’s ultimate determination necessarily satis-
fied the statutory elements of § 53-202k; see State v.
Beall, supra, 435; it is axiomatic that the petitioner has
failed to meet her burden of proving that there is a
reasonable probability that, but for her trial counsel’s
failure to object to the court’s instruction concerning
§ 53-202k, the result of the underlying criminal proceed-
ing would have been different. See Small v. Commis-
sioner of Correction, supra, 286 Conn. 712–13.
In Montgomery, our Supreme Court concluded that a
trial court’s failure to instruct the jury as to the statutory
elements of § 53-202k was harmless because the jury’s
determination that the defendant was guilty of murder
necessarily satisfied the statutory requirements of § 53-
202k. See State v. Montgomery, supra, 254 Conn. 738.
The defendant in Montgomery was convicted, following
a jury trial, of murder and felony murder, arising out
of an incident during which the defendant shot and
killed a coworker, and was charged with using a firearm
during the commission of the murder in violation of
§ 53-202k. Id., 696–98. The state sought a five year sen-
tence enhancement pursuant to § 53-202k during the
defendant’s sentencing hearing. Id., 735–36. The court
sentenced the defendant to a total term of sixty-five
years of incarceration, a sixty year sentence that was
enhanced by a five year term of incarceration pursuant
to § 53-202k. See id., 697.
On direct appeal, the defendant claimed, inter alia,
that the trial court improperly had failed to instruct the
jury as to the statutory elements of § 53-202k and, as
a result, had violated his constitutional right to due
process. Id., 735. Our Supreme Court determined that,
‘‘[a]lthough [it] agree[d] with the defendant that the jury
and not the trial court must make the factual determina-
tions required under § 53-202k . . . under the circum-
stances of th[e] case, the trial court’s failure to instruct
the jury regarding the elements of § 53-202k was harm-
less.’’ Id. Specifically, our Supreme Court stated,
‘‘[t]here [wa]s no dispute that the jury was not expressly
asked to’’ determine whether the defendant had used
a firearm in the commission of a class A, B or C felony
for the purposes of § 53-202k. Id., 737. Nonetheless,
‘‘the jury necessarily found that the defendant had com-
mitted a class A felony by virtue of finding [the defen-
dant] guilty of . . . a felony, namely, murder. . . .
With respect to the second element of § 53-202k, the
defendant did not contest the fact, established by incon-
trovertible evidence, that the victim had been shot
repeatedly in the head with a firearm and had died as
a result of wounds caused by that firearm. Indeed, in
closing argument, the defendant acknowledged that the
victim had been brutally murdered. The defendant
sought to convince the jury, rather, that the evidence
was insufficient to establish beyond a reasonable doubt
that he was the shooter.’’ (Citation omitted; emphasis
altered; internal quotation marks omitted.) Id., 738.
Thus, ‘‘[b]ecause the defendant did not dispute the fact
that the victim’s fatal wounds were inflicted by a fire-
arm, and because the jury found beyond a reasonable
doubt that the defendant was guilty of the victim’s mur-
der, a class A felony, the trial court’s failure to instruct
the jury regarding the elements of § 53-202k was harm-
less beyond a reasonable doubt.’’ Id.
In Beall, the defendant was convicted, following a
jury trial, of assault in the first degree arising out of
an incident during which the defendant had shot and
caused serious injury to a victim. See State v. Beall,
supra, 61 Conn. App. 432–34. The defendant was charged
separately in a part B information with using a firearm
in the commission of a felony in violation of § 53-202k.
See id., 433. The court ultimately sentenced the defen-
dant to a term of eighteen years of incarceration, sus-
pended after thirteen years, with three years of proba-
tion. See id. His sentence was enhanced by a five year
nonsuspendable term of incarceration pursuant to § 53-
202k. Id.
On direct appeal, the defendant claimed, inter alia,
that the trial court improperly had failed to submit to
the jury the question of whether he had used a firearm
in the commission of a class A, B or C felony in accor-
dance with § 53-202k. Id., 435. This court rejected the
defendant’s claim and determined that the court’s fail-
ure to instruct the jury as to the elements of § 53-202k
was harmless beyond a reasonable doubt. See id., 436.
This court specifically determined that ‘‘[t]he jury’s find-
ing that the defendant was guilty of having committed
assault in the first degree, a class B felony, necessarily
satisfied the first requirement [of § 53-202k—namely,
that he had committed a class A, B or C felony]. The
use of a firearm [however] is not always an element of
the crime of assault in the first degree, and the informa-
tion . . . did not expressly state that the ‘deadly
weapon’ used to cause the serious physical injury was
a firearm. The evidence presented at trial was that the
victim was shot in the chest and paralyzed below the
site of the wound. The defendant did not dispute that
evidence [at trial]. His defense was that he was not the
shooter. The sole evidence, therefore, of the assault in
the first degree, was that it was committed with a fire-
arm. The element found by the court rather than by the
jury, i.e., that the class B felony was committed with
a firearm, was uncontested [at trial] and supported by
overwhelming evidence; the court’s failure to instruct
on that element of § 53-202k therefore constituted
harmless error. . . . [B]ecause the defendant . . . did
not dispute that the victim suffered serious physical
injury by means of being shot by a firearm, and because
the jury found beyond a reasonable doubt that the
defendant was guilty of assault in the first degree, a
class B felony, the court’s failure to instruct the jury
regarding the elements of § 53-202k was harmless
beyond a reasonable doubt.’’ (Citation omitted; empha-
sis added.) Id., 435–36.
Guided by State v. Montgomery, supra, 254 Conn.
738, and State v. Beall, supra, 61 Conn. App. 435–36,
we conclude in the present case that the jury’s determi-
nation that the petitioner was guilty of attempt to com-
mit assault in the first degree as an accessory, in light
of the state’s theory of the case and the evidence pre-
sented at trial, necessarily satisfied each statutory
requirement of § 53-202k, including that a coparticipant
used a ‘‘firearm,’’ as defined in § 53a-3, in that attempted
assault. There is no question that the jury found the
petitioner guilty of a class B felony—attempted assault
in the first degree as an accessory in violation of §§ 53a-
59 (a) (1), 53a-49 (a) (2) and 53a-8—beyond a reason-
able doubt. See State v. VanDeusen, supra, 160 Conn.
App. 817; see also General Statutes § 53a-59. Accord-
ingly, the jury’s finding satisfied the first requirement of
§ 53-202k—namely, that the petitioner had committed
a class A, B or C felony. See State v. Beall, supra, 435.
With respect to the second element of § 53-202k—
that the petitioner or a coparticipant, during the com-
mission of the felony, used, was armed with and threat-
ened to use, or displayed a ‘‘firearm,’’ as defined in
§ 53a-3; see General Statutes § 53-202k; we note that
‘‘the use of a firearm is not an element of the crime of
[attempt to commit assault in the first degree] . . . [so]
the jury lawfully could have returned a finding of guilty
on the [attempt to commit assault] charge without also
having found that the [petitioner or a coparticipant]
had used a firearm in the commission of that crime.’’
(Citation omitted.) State v. Montgomery, supra, 254
Conn. 737. Accordingly, we look to the circumstances
of the case to determine whether the court’s failure to
instruct the jury as to the definition of the term ‘‘fire-
arm’’ was harmless. See id., 738.
To start, we note, as we have stated previously in this
opinion, that § 53-202k employs the statutory definition
of ‘‘firearm,’’ set forth in § 53a-3 (19). See General Stat-
utes § 53-202k. Section 53a-3 (19) defines ‘‘firearm’’ to
mean ‘‘any sawed-off shotgun, machine gun, rifle, shot-
gun, pistol, revolver or other weapon, whether loaded
or unloaded from which a shot may be discharged
. . . .’’ General Statutes § 53a-3 (19). We also note that,
by finding the petitioner guilty of attempted assault in
the first degree as an accessory, the jury necessarily
determined that the state had proven each element of
§§ 53a-59 (a) (1), 53a-49 (a) (2) and 53a-8 beyond a
reasonable doubt, including that a coparticipant used
a ‘‘deadly weapon’’ in the commission of the attempted
assault. Section 53a-3 defines ‘‘deadly weapon’’ to
include ‘‘any weapon, whether unloaded or loaded, from
which a shot may be discharged . . . .’’ General Stat-
utes § 53a-3 (6).
At trial, the state presented evidence that Knowles,
using a handgun, fired gunshots from the van at the
residence of J.L. See State v. VanDeusen, supra, 160
Conn. App. 820. Specifically, the state elicited testimony
from Ayala that she had observed Knowles retrieve a
black gun from a shoe box, enter the van with it, and
that, later that night, Knowles told her they had gone
to J.L.’s house and he had fired gunshots from the van
toward J.L.’s residence. The state elicited testimony
from Delmonte that, from inside of J.L.’s residence,
she had heard a ‘‘very loud noise’’ and subsequently
observed the taillights of a vehicle as it drove away.
Further, the state elicited testimony from J.L. and Rodri-
guez that, later that evening, J.L., Rodriguez, and Del-
monte discovered bullets that had pierced a window
and a supporting pillar of J.L.’s residence. The state
additionally elicited testimony from a responding police
officer that he observed what appeared to be a bullet
hole that had pierced the front of J.L.’s residence and
recovered bullets from the scene. The state did not
present evidence that any other type of deadly weapon
was used during the commission of the offense. The
sole evidence, therefore, that the state presented to
support the charge of attempted assault in the first
degree, of which the jury found the petitioner to be an
accessory, was that it was committed with a handgun—
specifically, that Knowles discharged a loaded handgun
at J.L.’s residence. See State v. Beall, supra, 61 Conn.
App. 436.
The petitioner did not contest the state’s theory at
trial that Knowles used a handgun in the commission
of the offense. By contrast, a thorough review of the
trial transcripts reveals that the petitioner’s theory of
her defense was that she either was uninvolved entirely
with, or, at most, merely was an uninvolved witness to,
the commission of the offense. Specifically, the peti-
tioner sought to convince the jury that the state had
failed to present reliable witnesses that could attest to
her alleged involvement in the shooting and that the
witnesses that the state did call were unreliable ‘‘low-
li[ves]’’ whose testimony was not credible. On several
occasions during closing argument, in fact, the petition-
er’s trial counsel acknowledged that an individual had
fired shots from a ‘‘gun’’ at J.L.’s home; the petitioner’s
trial counsel argued, however, that the petitioner nei-
ther had possessed nor had used the gun on the night
of January 10, 2009.
Thus, we conclude that the jury’s guilty verdict as to
the charge of attempted assault—and, consequently,
its determination that a coparticipant used a deadly
weapon in the commission of the attempted assault—
was predicated on the evidence that the state presented
as to the only weapon used during the commission of
the offense: the handgun. The jury necessarily accepted
the state’s theory, undisputed by the petitioner at trial,
that Knowles used a ‘‘deadly weapon,’’ the handgun, in
the commission of the attempted assault. It logically
follows, in light of the undisputed evidence that the
state presented at trial, that the jury found that the
handgun was a ‘‘loaded’’ weapon from which Knowles
‘‘discharged’’ a ‘‘shot’’ at the residence of J.L. Thus, the
jury necessarily determined that the handgun satisfied
the statutory definition of a ‘‘firearm’’ in § 53a-3 (19)—a
‘‘sawed-off shotgun, machine gun, rifle, shotgun, pistol,
revolver or other weapon, whether loaded or unloaded
from which a shot may be discharged . . . .’’ (Empha-
sis added.) General Statutes § 53a-3 (19). We, therefore,
conclude that the jury necessarily found that the state
had proven each statutory element of § 53-202k beyond
a reasonable doubt and, accordingly, that the court’s
failure to instruct the jury as to the elements of § 53-
202k was harmless beyond a reasonable doubt. See
State v. Beall, supra, 61 Conn. App. 435–36.
Because we conclude that the court’s failure to pro-
vide the jury instruction concerning the statutory ele-
ments of § 53-202k was harmless beyond a reasonable
doubt, it is axiomatic that the petitioner has failed to
meet her burden of proving that there is a reasonable
probability that, but for her trial counsel’s failure to
object to the court’s instruction concerning § 53-202k,
the result of the underlying criminal proceeding would
have been different. See Small v. Commissioner of
Correction, supra, 286 Conn. 712–13. Accordingly, the
petitioner’s claim fails.15
II
The petitioner additionally claims on appeal that the
habeas court improperly concluded that she failed to
demonstrate that her trial counsel provided ineffective
assistance by neglecting to request that the court
instruct the jury, or otherwise object to the court’s
instruction concerning § 53-202k, that (1) § 53-202k
expressly excludes ‘‘assault weapon[s]’’ from the term
‘‘firearm’’; see General Statutes § 53-202k; see also foot-
note 9 of this opinion; and (2) the state was obligated
to prove beyond a reasonable doubt that the weapon
used on January 10, 2009, was not an ‘‘assault weapon.’’16
She claims that her trial counsel’s failure to request
such an instruction caused her prejudice because, if the
weapon at issue was an ‘‘assault weapon,’’ the sentence
enhancement contained in § 53-202k would not have
applied. As appellate counsel for the respondent, the
Commissioner of Correction, conceded at oral argu-
ment before this court, the sentence enhancement con-
tained in § 53-202k would not have applied if the
weapon used during the shooting was an ‘‘assault
weapon.’’ Appellate counsel for the respondent also
conceded at oral argument before this court that the
state presented no evidence during the petitioner’s
underlying criminal trial to distinguish whether the
weapon used during the shooting was a ‘‘firearm’’ or
an ‘‘assault weapon.’’17 Because we conclude that this
claim was not adequately preserved for appellate review,
we decline to review the petitioner’s claim.
The following additional procedural history is rele-
vant to our resolution of the petitioner’s claim. In her
petition for a writ of habeas corpus and in her brief to
the habeas court in support of her petition, the peti-
tioner claimed, inter alia, that her trial counsel had
provided ineffective assistance by failing to request a
jury instruction regarding each statutory element of
§ 53-202k, including the definition of ‘‘firearm’’ as set
forth in § 53a-3 (19), or otherwise objecting to the
instruction that the court gave. In connection with her
claim, the petitioner alleged that her trial counsel’s defi-
cient performance prejudiced her because, as a result of
her trial counsel’s deficient performance, a reasonable
‘‘possibility’’ existed that the jury misunderstood what
it was required to consider to determine whether the
sentence enhancement contained in § 53-202k applied.
During the habeas trial, the petitioner reiterated the
claim that she had raised in her petition and correspond-
ing brief—that her trial counsel provided ineffective
assistance and that counsel’s allegedly deficient perfor-
mance prejudiced her because, as a result of her trial
counsel’s failure to request a jury instruction regarding
the elements of § 53-202k or otherwise object to the
instruction that the court gave, a reasonable probability
existed that the jury may have misunderstood what it
was required to find for the defendant’s sentence to
be enhanced pursuant to § 53-202k. Specifically, the
petitioner’s habeas counsel argued, ‘‘[t]he only plausible
explanation [as to how the jury concluded that the state
had proven each element of § 53-202k] is that the jury
must have guessed’’ what it must find for the sentence
enhancement contained in § 53-202k to apply. (Empha-
sis added.) At no point in her petition for a writ of
habeas corpus, in her brief in support of her petition,
or during the habeas trial did the petitioner assert that
she was prejudiced by her trial counsel’s failure to
request the jury instruction because, if the weapon that
was used during the shooting was an assault weapon,
the sentence enhancement contained in § 53-202k would
not have applied.
On appeal to this court, the petitioner maintains—as
she did before the habeas court—that her trial counsel
provided ineffective assistance. She appears to claim
on appeal, however, that her trial counsel’s failure to
request that the jury be instructed as to the definition
of ‘‘firearm’’ under § 53-202k prejudiced her because,
if what was used on January 10, 2009, was an ‘‘assault
weapon,’’ the sentence enhancement contained in § 53-
202k would not have applied. The petitioner’s appellate
counsel conceded at oral argument before this court
that the petitioner advances this specific legal theory
of prejudice for the first time on appeal.
‘‘It is well settled that this court [and our Supreme
Court] shall not be bound to consider a claim unless it
was distinctly raised at the trial . . . .’’ (Emphasis
added; internal quotation marks omitted.) Crawford v.
Commissioner of Correction, 294 Conn. 165, 177, 982
A.2d 620 (2009). ‘‘A reviewing court will not consider
claims not raised in the habeas petition or decided by
the habeas court.’’ (Internal quotation marks omitted.)
Giattino v. Commissioner of Correction, 169 Conn.
App. 566, 580, 152 A.3d 558 (2016). Indeed, ‘‘[w]e do
not entertain claims not raised before the habeas court
but raised for the first time on appeal. . . . The pur-
pose of the [petition] is to put the [respondent] on notice
of the claims made, to limit the issues to be decided,
and to prevent surprise.’’ (Internal quotation marks
omitted.) Sanders v. Commissioner of Correction, 169
Conn. App. 813, 820–21 n.3, 153 A.3d 8 (2016), cert.
denied, 325 Conn. 904, 156 A.3d 536 (2017). ‘‘[P]rinciples
of fairness dictate that both the opposing party and the
[habeas] court are entitled to have proper notice of a
claim. . . . Our review of a claim not distinctly raised
[before] the [habeas] court violates that right to notice.
. . . [A]ppellate review of newly articulated claim[s]
not raised before the habeas court would amount to an
ambuscade of the [habeas] judge . . . .’’ (Citation omit-
ted; internal quotation marks omitted.) Eubanks v.
Commissioner of Correction, 329 Conn. 584, 597–98,
188 A.3d 702 (2018); see also Crawford v. Commis-
sioner of Correction, supra, 177 (‘‘[f]or this court to
. . . consider a claim on the basis of a specific legal
ground not raised [before the habeas court] would
amount to trial by ambuscade, unfair both to the
[habeas court] and to the opposing party’’ (internal quo-
tation marks omitted)). Accordingly, ‘‘our review is lim-
ited to matters in the record, [and] we will not address
issues not decided by the [habeas] court.’’ (Internal
quotation marks omitted.) Alexander v. Commissioner
of Correction, 103 Conn. App. 629, 640, 930 A.2d 58,
cert. denied, 284 Conn. 939, 937 A.2d 695 (2007).
In the present case, a thorough review of the record—
including the petitioner’s petition for a writ of habeas
corpus, her brief to the habeas court in support of
her petition, and the transcript from the habeas trial—
reveals, as the petitioner conceded, that she did not
raise before the habeas court her distinct claim that
her trial counsel’s failure to request a jury instruction
that § 53-202k excludes ‘‘assault weapon[s]’’ from the
term ‘‘firearm’’ prejudiced her because, if the weapon
at issue was an ‘‘assault weapon,’’ the sentence
enhancement contained in § 53-202k would not have
applied. She alleged before the habeas court that she
was prejudiced by her trial counsel’s allegedly deficient
performance because, as a result of her trial counsel’s
failure to request a jury instruction as to each element
of § 53-202k or otherwise object to the instruction that
the court gave, a reasonable probability existed that
the jury misunderstood the law to be applied. The peti-
tioner’s claim on appeal, thus, is predicated on a distinct
allegation of ‘‘prejudice’’ that she never presented
before the habeas court—one on which the habeas
court did not rule. Accordingly, we conclude that this
distinct claim was not adequately preserved for appel-
late review, and, because our consideration of ‘‘a claim
on the basis of a specific legal ground not raised [before
the habeas court] would amount to trial by ambuscade’’;
(internal quotation marks omitted) Crawford v. Com-
missioner of Correction, supra, 294 Conn. 177; we decline
to review the claim.18
The judgment is affirmed.
In this opinion the other judges concurred.
1
The habeas court granted the petitioner certification to appeal.
* In accordance with our policy of protecting the privacy interests of the
victims of the crime of risk of injury to a child, we decline to identify the
victim or others through whom the victim’s identity may be ascertained.
See General Statutes § 54-86e.
2
‘‘Ayala was unable to fight because, at that time, she was pregnant with
Knowles’ child.’’ State v. VanDeusen, 160 Conn. App. 815, 818 n.2, 126 A.3d
604, cert. denied, 320 Conn. 903, 127 A.3d 187 (2015).
3
At trial, Alaya testified that the weapon that Knowles had retrieved from
the shoe box was a ‘‘black’’ handgun.
4
General Statutes § 53-202k, titled ‘‘Commission of a class A, B or C felony
with a firearm: Five-year nonsuspendable sentence,’’ provides: ‘‘Any person
who commits any class A, B or C felony and in the commission of such
felony uses, or is armed with and threatens the use of, or displays, or
represents by his words or conduct that he possesses any firearm, as defined
in [§] 53a-3, except an assault weapon, as defined in [§] 53-202a, shall be
imprisoned for a term of five years, which shall not be suspended or reduced
and shall be in addition and consecutive to any term of imprisonment
imposed for conviction of such felony.’’
5
The sentence enhancement on the petitioner’s conviction of attempted
assault in the first degree as an accessory was not challenged on direct
appeal. See State v. VanDeusen, supra, 160 Conn. App. 842.
6
‘‘In habeas corpus proceedings, courts often describe constitutional
claims that are not tethered to a petitioner’s sixth amendment right to
counsel as ‘freestanding.’ ’’ McCarthy v. Commissioner of Correction, 192
Conn. App. 797, 810 n.8, 218 A.3d 638 (2019).
7
Although the petitioner’s operative petition for a writ of habeas corpus
and her corresponding brief to the habeas court in support of her petition
set forth this claim in somewhat vague terms, her habeas counsel clarified
during the habeas trial that she specifically contended that the court should
have instructed the jury as to the statutory definition of ‘‘firearm,’’ as set forth
in § 53a-3 (19). During closing argument, the petitioner’s counsel specifically
argued to the habeas court, ‘‘if you look at the [jury] instructions as a whole,
the [trial court] never actually instruct[ed] [the jury as to] what a firearm
is, per se. . . . [The jury instructions did not] list . . . all [of] the different
types of firearms that could be used [that would constitute a ‘‘firearm’’ under
§ 53a-3], as is typically done in jury instructions.’’ (Emphasis added.)
8
Section 53-202k provides for a five year sentence enhancement to ‘‘[a]ny
person who commits any class A, B or C felony and in the commission of
such felony uses, or is armed with and threatens the use of, or displays, or
represents by his words or conduct that he possesses any firearm, as
defined in [§] 53a-3, except an assault weapon . . . .’’ (Emphasis added.)
The term ‘‘firearm,’’ as defined in § 53a-3, includes ‘‘any sawed-off shotgun,
machine gun, rifle, shotgun, pistol, revolver or other weapon, whether loaded
or unloaded from which a shot may be discharged . . . .’’ General Statutes
§ 53a-3 (19).
9
The trial court submitted to the jury three interrogatories, each corres-
ponding to a separate charged offense. In its jury charge, the court instructed
the jury to answer each interrogatory only ‘‘in the event that [the jury] . . .
[found] the [petitioner] guilty’’ of the respective offense.
The interrogatory that corresponded to the second charge—attempted
assault in the first degree as an accessory in violation of §§ 53a-59 (a) (1),
53a-49 (a) (2), and 53a-8—specifically provided in relevant part:
‘‘You will answer the following interrogatory if, but only if, you have found
the [petitioner] guilty as an accessory to attempt to commit assault in the
first degree as charged in count two. If you have found [her] not guilty of
that charge, do not answer it.
‘‘This submission in no way suggests what your verdict should be.
‘‘If you reach the following interrogatory, your conclusion must be unani-
mous. . . .
‘‘Has the state proven to all of you unanimously beyond a reasonable
doubt, that the [petitioner] or another participant used, or was armed with
and threatened the use of, or displayed a firearm?’’
10
An ‘‘X’’ was marked next to the word, ‘‘yes,’’ on the interrogatory form,
and the jury foreperson signed the bottom of the form. After the jury returned
a guilty verdict on each count, the court polled each juror to ask whether
the state had proven, unanimously and beyond a reasonable doubt, that the
petitioner or another participant in the commission of the offense had used,
was armed with or threatened the use of, or displayed a firearm. Each juror
answered affirmatively.
11
As we discussed in more detail in part I of this opinion, in State v. Beall,
supra, 61 Conn. App. 435, this court stated, in reliance on our Supreme
Court’s decision in State v. Montgomery, 254 Conn. 694, 737–38, 759 A.2d
995 (2000), that, ‘‘[if] there is no question that the jury’s finding necessarily
satisfied the two requirements of § 53-202k, the court’s failure to instruct
the jury regarding the elements of § 53-202k is harmless beyond a reason-
able doubt.’’
12
On appeal, the petitioner does not challenge the habeas court’s conclu-
sion that she failed to demonstrate that her appellate counsel provided
ineffective assistance.
13
We note that it is difficult to ascertain the petitioner’s precise claim
from reviewing the record below and the petitioner’s principal appellate
brief. Nonetheless, we conclude that the petitioner articulated this claim of
ineffective assistance of trial counsel to the habeas court and, once again,
raises this claim on appeal to this court.
To the extent that the petitioner contends that the trial court improperly
provided the elements of § 53-202k to the jury by way of written interroga-
tory, instead of orally instructing the jury as to the elements of § 53-202k,
her reliance on this argument is misplaced. First, her reasoning presumes
that the interrogatory that the court provided to the jury; see footnote 9 to
this opinion; set forth each statutory element of § 53-202k. The interrogatory,
however, failed to define fully the statutory elements of § 53-202k. See
General Statutes § 53-202k. As we explain herein in more detail, despite the
fact that the interrogatory was deficient because it failed to define fully the
statutory elements of § 53-202k, any error was nonetheless harmless because
the jury necessarily found that the state had proven each statutory element
of § 53-202k beyond a reasonable doubt.
14
In her principal appellate brief, the petitioner appears to contend that
the court’s failure to provide a jury instruction concerning the statutory
elements of § 53-202k is not subject to harmless error analysis. In support
of her contention, the petitioner points us to the decision of the United
States Court of Appeals for the Ninth Circuit in United States v. Becerra,
939 F.3d 995 (9th Cir. 2019), in which the court stated that a trial court’s
‘‘failure to provide any oral instructions to the jurors is an error that as a
practical matter precludes a harmless error analysis . . . .’’ (Emphasis
added; internal quotation marks omitted.) Id., 1004; see also Guam v. Mar-
quez, 963 F.2d 1311, 1316 (9th Cir. 1992) (same).
To adopt such a rule, however, would run afoul of the binding precedent
of our Supreme Court; see State v. Montgomery, supra, 254 Conn. 737(determining that trial court’s failure to provide jury instruction concerning
elements of § 53-202k was harmless in light of fact that jury’s ultimate
finding that defendant was guilty of underlying felony offense necessarily
satisfied all statutory elements of § 53-202k); and would require us to over-
turn a decision of another panel of this court. See State v. Beall, supra, 61
Conn. App. 435 n.6 (‘‘The defendant argues that the court’s failure to instruct
the jury on the requirements of § 53-202k is not amenable to harmless error
analysis . . . . We see no merit in his argument that this error requires
automatic reversal and can never be found harmless.’’ (Emphasis added.)).
‘‘[I]t is not the province of this panel to disregard binding authority of our
Supreme Court or to overturn a decision of another panel of this court.’’
State v. Bouvier, 209 Conn. App. 9, 43 n.21, 267 A.3d 211 (2021), cert. denied,
341 Conn. 903, 269 A.3d 789 (2022). Accordingly, we decline to do so.
15
Because we determine on the basis of our plenary review that the
petitioner failed to satisfy her burden under the prejudice prong of Strick-
land, it is unnecessary for us to determine whether the petitioner satisfied
the performance prong. See Jordan v. Commissioner of Correction, 197
Conn. App. 822, 831 n.9, 234 A.3d 78 (2020), aff’d, 341 Conn. 279, 267 A.3d
120 (2021).
16
General Statutes § 53-202j imposes a harsher penalty—an eight year,
nonsuspendable sentence—on ‘‘[a]ny person who commits any class A, B
or C felony and in the commission of such felony uses, or is armed with
and threatens the use of, or displays, or represents by his words or conduct
that he possesses an assault weapon, as defined in [General Statutes §] 53-
202a . . . .’’ (Emphasis added.)
17
At oral argument before this court, appellate counsel for the respondent
also conceded that the projectiles that were discovered in or around J.L.’s
home could have been discharged from an assault weapon, that some assault
weapons are handguns, and that a weapon described simply as a ‘‘black
handgun’’ could have been an assault weapon.
18
We note that review of the petitioner’s claim pursuant to State v. Golding,
213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317
Conn. 773, 781, 120 A.3d 1188 (2015), is not available in these circumstances.
‘‘Golding review is not available for [a] petitioner’s unpreserved ineffective
assistance of counsel claim [if] that claim does not arise out of the actions
or omissions of the habeas court itself. . . . Golding review is available in
a habeas appeal only for claims that challenge the actions of the habeas
court.’’ (Emphasis added.) Moye v. Commissioner of Correction, 316 Conn.
779, 787, 114 A.3d 925 (2015). In the present case, ‘‘[t]he petitioner’s unpre-
served ineffective assistance claim challenges [her] trial attorney’s allegedly
[ineffective assistance] at [her] criminal trial. Thus, the basis for the petition-
er’s ineffective assistance claim arose during [her] criminal trial and should
have been presented to the habeas court as an additional basis for granting
the writ of habeas corpus.’’ Id. Accordingly, ‘‘Golding review is not available
for the petitioner’s unpreserved ineffective assistance of counsel claim
because that claim does not arise out of the actions or omissions of the
habeas court itself.’’ Id.