Flomo v. Commissioner of Correction ( 2016 )

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HENRY FLOMO v. COMMISSIONER OF CORRECTION
(AC 38010)
Alvord, Prescott and Harper, Js.
Argued September 13—officially released November 8, 2016
(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
Erica A. Barber, assigned counsel, for the appel-
lant (petitioner).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Gail P. Hardy, state’s attorney, David
M. Carlucci, special deputy assistant state’s attorney,
and Leon F. Dalbec, Jr., former senior assistant state’s
attorney, for the appellee (respondent).
Opinion
PRESCOTT, J. The petitioner, Henry Flomo, appeals
from the judgment of the habeas court denying his
petition for a writ of habeas corpus.1 On appeal, the
petitioner claims that the habeas court improperly
rejected his claims that (1) he received ineffective assis-
tance of counsel due to his attorney’s failure to advise
him properly of the immigration consequences of his
guilty plea in accordance with Padilla v. Kentucky, 559
U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), and
(2) his guilty plea was not made knowingly, intelligently,
and voluntarily because the trial court failed to ensure
that he fully understood the precise immigration conse-
quences of his plea. We conclude that the habeas court
properly rejected the petitioner’s ineffective assistance
of counsel claim on the ground that he failed to demon-
strate prejudice, as required under the test articulated
in Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Additionally, the
petitioner’s second claim fails as a matter of law
because immigration and naturalization consequences
of a plea, although often significant, are not of a consti-
tutional magnitude for purposes of evaluating whether
a plea is knowing and voluntary. See State v. Malcolm,
257 Conn. 653, 663 n.12, 778 A.2d 134 (2001). Accord-
ingly, we affirm the judgment of the habeas court.
The record reveals the following relevant facts and
procedural history. The petitioner is a citizen of Liberia
who was admitted to this country in 2010 as a perma-
nent legal resident.2 He was arrested in July, 2013, on
charges stemming from an incident that occurred on
March 7, 2013. As found by the habeas court, at the
time of the incident, ‘‘[t]he petitioner was a youth leader
at the fifteen year old victim’s church. The petitioner
picked [the victim] up after she had requested a ride
and took her to his apartment, where he had some
physical contact with her, and asked her for sex, which
she refused.’’ The petitioner initially was charged with
attempt to commit sexual assault in the first degree in
violation of General Statutes § 53a-70 (a) (1), sexual
assault in the third degree in violation of General Stat-
utes § 53a-72a (a) (1), and risk of injury to a child in
violation of General Statutes § 53-21 (a) (2). If convicted
on all three charges, the petitioner faced a possible
maximum sentence of forty-five years of incarceration.
At a court appearance on October 15, 2013, the court
informed the petitioner that the state had extended a
plea offer, his defense counsel, Richard E. Cohen, would
explain the offer to him, and he would have until
November 12, 2013, to accept or to reject the plea offer.
In a letter to the petitioner dated October 29, 2013,
Cohen memorialized that he had spoken with the peti-
tioner regarding the pending charges, the maximum
penalty that he faced if convicted of those charges, and
the state’s plea offer. According to Cohen’s letter, if the
petitioner agreed to plead guilty to one count of sexual
assault in the third degree, the state would recommend
a sentence of five years, execution suspended after one
year, followed by ten years of probation. Cohen further
stated in the letter: ‘‘We also discussed immigration
consequences. You would most likely be deported after
serving your sentence.’’ He ended the letter as follows:
‘‘I am inclined to advise you to accept the offer, although
I will try to obtain a better offer.’’
Just prior to the petitioner’s November 12, 2013
report back date, the state changed the terms of the
plea offer. Instead of requiring the petitioner to plead
guilty to sexual assault in the third degree, the state
offered to recommend a plea agreement to the risk of
injury count. Counsel met with the petitioner to discuss
this new plea offer, but, as reported to the court on the
record, the petitioner ‘‘remained persistent and consis-
tent’’ that he did not commit any of the charged offenses.
Having rejected the state’s plea offer at that time, the
court placed the matter on the docket for a trial.
Subsequently, on February 6, 2014, the parties
appeared before the court, Alexander, J., having
reached a plea deal. Pursuant to the new agreement,
in exchange for the petitioner’s guilty plea, the state
agreed to file a substitute information charging the peti-
tioner only with risk of injury to a child in violation of
§ 53-21 (a) (1),3 and to recommend a sentence of five
years of incarceration, suspended after one year, fol-
lowed by three years of probation with special condi-
tions. Following a plea canvass, the court accepted the
petitioner’s guilty plea under the Alford doctrine4 to the
risk of injury charge and sentenced him in accordance
with the terms of the plea agreement.
As part of the plea canvass, the court inquired
whether the petitioner knew that there were potential
immigration consequences of his plea. The following
colloquy occurred:
‘‘The Court: If you are not a citizen, a conviction of
any crime could result in deportation, exclusion from
admission, denial of your naturalization rights pursuant
to the laws of the United States. Do you understand
that consequence, if it applies to you?
‘‘The Petitioner: Yes, Your Honor.
‘‘The Court: Mr. Cohen, have you discussed that con-
sequence with [the petitioner], if it applies?
‘‘[Defense Counsel]: I did. It does apply, and we’ve
discussed this several times in great detail, so he is
aware that there could be some immigration issues
here.
‘‘The Court: All right. Do you need to ask your lawyer
anything more about that issue at all before I go forward,
or are you all set?
‘‘The Petitioner: Yeah.
‘‘The Court: Take a minute. Are you all set?
‘‘The Petitioner: Yeah, I’m all set, Your Honor.’’
On May 23, 2014, the Department of Homeland Secu-
rity initiated removal proceedings against the peti-
tioner. On July 10, 2014, the United States Immigration
Court adjudicated the petitioner to be removable from
the United States on the basis of his commission of a
removable offense. The petitioner appealed from that
decision to the Board of Immigration Appeals (board),
which vacated the decision because, in determining
whether the petitioner committed a removable offense,
the immigration judge had failed to consider a recent
United States Supreme Court decision regarding the
proper categorization of criminal offenses. See Des-
camps v. United States, U.S. , 133 S. Ct. 2276,
186 L. Ed. 2d 438 (2013). The board remanded the matter
for further proceedings. On December 16, 2015, the
Immigration Court rendered a new decision in which
it concluded that the petitioner had committed a remov-
able offense and that he was ineligible for relief from
removal. According to the Immigration Court, any viola-
tion of § 53-21 qualifies as a crime of child abuse, child
neglect, or child abandonment for immigration pur-
poses and, as such, constitutes a removable offense. It
ordered that the petitioner be removed to Liberia.5
On August 1, 2014, the petitioner filed the underlying
petition for a writ of habeas corpus. An amended peti-
tion was filed on September 23, 2014. The amended
petition contained two counts. Count one alleged a due
process violation, claiming that the petitioner’s plea
was not made knowingly, intelligently, and voluntarily
because he did not fully understand the immigration
consequences of his plea, including the likelihood of
deportation. Count two alleged that his trial counsel
had provided ineffective assistance by, inter alia, failing
to adequately research the immigration consequences
of the plea or to advise the petitioner about potential
consequences, and by not negotiating a plea that would
have avoided the possibility of deportation.6
A trial on the petition for habeas corpus was con-
ducted by the court on November 18, 2014. The peti-
tioner submitted a pretrial memorandum of law, and
both parties submitted posttrial briefs. In addition to
his own testimony, the petitioner presented testimony
from Cohen; Attorney Justin Conlon, an expert on immi-
gration law; Carlene Davis, a counselor supervisor at
Robinson Correctional Institution; and Charlotte
Neizer, the petitioner’s fiance´e. The respondent, the
Commissioner of Correction, did not call any witnesses.
At the habeas trial, the petitioner testified that he
was unaware of the immigration consequences of his
plea at the time he entered it. He stated that he never
received any letter from Cohen explaining that he was
most likely to be deported if he accepted the terms of
the initial plea offer. He also stated that, at the time he
spoke with Cohen about accepting the later plea deal,
Cohen never discussed the immigration consequences
of the plea or informed him about the likelihood of
deportation. He claimed that he did not believe there
was any significant chance of deportation at the time
he entered his Alford plea. The petitioner initially testi-
fied that he first learned he might have immigration
consequences when he applied for and was denied tran-
sitional supervision. His habeas counsel then asked him
if he remembered the court telling him during the plea
canvass that there may be immigration consequences
to his plea and whether that may have been when he
first learned of such consequences. The petitioner
responded yes, but suggested that he had no idea what
the judge meant. Counsel asked the petitioner if he
remembered Cohen saying during the plea canvass that
he had had several discussions with the petitioner about
immigration consequences. The petitioner said he
remembered that, but stated that when he tried to raise
his hand to address the court on the topic, Cohen had
stopped him. The petitioner was asked: ‘‘If you had
been told by [Cohen] that pleading guilty to risk of
injury to a child under the terms of the offer that was
being presented to you would’ve meant you pled guilty
to a crime of child abuse with a near certain chance of
deportation, would you have accepted the plea offer?’’
The petitioner responded: ‘‘No, sir.’’
Cohen testified, consistent with what he stated during
the plea canvass, that he had discussed the immigration
consequences of a guilty plea with the petitioner several
times, including the potential for deportation. Cohen
admitted that he did not consult with an immigration
attorney or retain an immigration attorney with whom
the petitioner could consult, but he testified that his
understanding was always that there was a distinct
possibility that the petitioner could be deported if he
pleaded guilty to any of the pending charges, and he
communicated that to his client. Cohen also explained
during his testimony that the petitioner ‘‘was not con-
cerned about going back to Liberia’’ and was ‘‘pretty
emphatic’’ on that point. According to Cohen, ‘‘he had
no problems with . . . the deportation aspect. He said
he didn’t care.’’ Cohen testified that the petitioner’s
primary concern was with avoiding a conviction that
involved misconduct of a sexual nature because there
would be a stigma attached to being a convicted sex
offender, both ‘‘in his native country and in his culture.’’
Therefore, Cohen’s main focus during plea negotiations
had been to minimize the petitioner’s sentence and to
enable the petitioner to avoid sex offender registration,
which he accomplished.
The habeas court issued a memorandum of decision
on May 5, 2015. The court found credible Cohen’s testi-
mony that he had discussed with the petitioner the
immigration consequences of his plea and that he had
told him that he would ‘‘most likely’’ be deported. The
court also credited Cohen’s testimony that the peti-
tioner was not concerned with deportation. The court
found that the petitioner’s primary goals in obtaining
a plea bargain ‘‘were to avoid jail time and to eliminate
any charge of a sexual nature,’’ and that he accom-
plished both goals by entering a plea to risk of injury
under § 53-21 (a) (1). The court expressly rejected the
petitioner’s testimony that his counsel had failed to
discuss the immigration consequences of his plea with
him and that he had no idea he might be deported as
a result.
Rather than analyze whether Cohen’s performance
was deficient under the standard set forth in Padilla
v. Kentucky, supra, 559 U.S. 356; the court instead
focused its analysis on whether the petitioner had estab-
lished that he was prejudiced by his counsel’s alleged
deficient performance. The court concluded that he had
not met that burden, stating in relevant part: ‘‘Here, the
court finds that the petitioner was not concerned about
the immigration consequences of his plea, but rather
the stigma attached to a conviction for a sexual assault
of a minor, and reducing his jail sentence. The plea
agreement that the petitioner accepted took into
account those concerns. Additionally, the petitioner has
family in Liberia, including his son, mother and siblings.
He presented no credible evidence to prove that it
would have been a rational decision for him to reject
a very favorable plea deal in favor of going to trial
and facing decades in prison after which the petitioner
would still likely be deported.’’
The court also rejected, albeit in summary fashion,
the petitioner’s claim that his plea had not been know-
ingly or intelligently made. It appears that the court
based its decision primarily on the fact that the petition-
er’s claim was grounded upon the same evidence as
the ineffective assistance claim, in particular the peti-
tioner’s testimony at the habeas trial that he did not
understand the probability of his deportation at the
time he entered his plea. This appeal followed.
I
We turn first to the petitioner’s claim that the habeas
court improperly rejected his claim that he received
ineffective assistance because his counsel failed to
advise him adequately of the immigration consequences
of his guilty plea in accordance with Padilla v. Ken-
tucky, supra, 559 U.S. 356.7 Because we conclude that
the habeas court properly determined that the peti-
tioner had failed to demonstrate that he was prejudiced
by counsel’s allegedly deficient performance, we reject
the petitioner’s claim.
We begin our analysis with the legal principles that
govern our review of the petitioner’s claim. ‘‘A criminal
defendant is constitutionally entitled to adequate and
effective assistance of counsel at all critical stages of
criminal proceedings. . . .8 This right arises under the
sixth and fourteenth amendments to the United States
constitution and article first, § 8, of the Connecticut
constitution. . . . It is axiomatic that the right to coun-
sel is the right to the effective assistance of counsel.
. . .
‘‘A claim of ineffective assistance of counsel is gov-
erned by the two-pronged test set forth in Strickland
v. Washington, supra, 466 U.S. 687. Under Strickland,
the petitioner has the burden of demonstrating that (1)
counsel’s representation fell below an objective stan-
dard of reasonableness, and (2) counsel’s deficient per-
formance prejudiced the defense because there was a
reasonable probability that the outcome of the proceed-
ings would have been different had it not been for the
deficient performance. . . . For claims of ineffective
assistance of counsel arising out of the plea process, the
United States Supreme Court has modified the second
prong of the Strickland test to require that the petitioner
produce evidence that there is a reasonable probability
that, but for counsel’s errors, [the petitioner] would not
have pleaded guilty and would have insisted on going
to trial. . . . An ineffective assistance of counsel claim
will succeed only if both prongs [of Strickland] are
satisfied.’’ (Citations omitted; footnote added; internal
quotation marks omitted.) Thiersaint v. Commissioner
of Correction, 316 Conn. 89, 100–101, 111 A.3d 829
(2015); see also Hill v. Lockhart, 474 U.S. 52, 59, 106
S. Ct. 366, 88 L. Ed. 2d 203 (1985) (modifying Strickland
prejudice analysis in cases in which petitioner entered
guilty plea). ‘‘It is axiomatic that courts may decide
against a petitioner on either prong [of the Strickland
test], whichever is easier.’’ Lewis v. Commissioner of
Correction, 165 Conn. App. 441, 451, 139 A.3d 759
(2016), citing Strickland v. Washington, supra, 466 U.S.
697 (‘‘a court need not determine whether counsel’s
performance was deficient before examining the preju-
dice suffered by the [petitioner]’’).
‘‘The [ultimate] conclusions reached by the [habeas]
court in its decision [on a] habeas petition are matters
of law, subject to plenary review. . . . [When] the legal
conclusions of the court are challenged, [the reviewing
court] must determine whether they are legally and
logically correct . . . and whether they find support
in the facts that appear in the record. . . . To the extent
that factual findings are challenged, this court cannot
disturb the underlying facts found by the habeas court
unless they are clearly erroneous. . . . [A] finding of
fact is clearly erroneous when there is no evidence in
the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed.’’ (Internal quo-
tation marks omitted.) Anderson v. Commissioner of
Correction, 114 Conn. App. 778, 784, 971 A.2d 766, cert.
denied, 293 Conn. 915, 979 A.2d 488 (2009). A reviewing
court ordinarily will afford deference to those credibil-
ity determinations made by the habeas court ‘‘on the
basis of [the] firsthand observation of [a witness’] con-
duct, demeanor and attitude.’’ (Internal quotation marks
omitted.) Lapointe v. Commissioner of Correction, 316
Conn. 225, 268, 112 A.3d 1 (2015).
Turning to the present case, the habeas court elected
not to decide whether Cohen’s performance was defi-
cient in the present case. Rather, it denied the habeas
petition on the basis of its determination that the peti-
tioner’s ineffective assistance claim failed on the preju-
dice prong of the Strickland-Hill test. According to the
habeas court, even if the petitioner could satisfy the
performance prong by demonstrating that Cohen had
not thoroughly researched or competently advised him
of the immigration consequences of his plea, including
the likelihood of deportation, he nonetheless failed to
show that, but for Cohen’s deficient performance, he
reasonably would have elected to reject the plea
agreement offered by the state and would have insisted
on going to trial. We conclude that the habeas court’s
determination is both legally and logically correct and
supported by the record.
To satisfy the prejudice prong, the petitioner had the
burden to show that, absent counsel’s alleged failure
to advise him in accordance with Padilla, he would
have rejected the state’s plea offer and elected to go
to trial. See Hill v. Lockhart, supra, 474 U.S. 59. In
evaluating whether the petitioner had met this burden
and evaluating the credibility of the petitioner’s asser-
tions that he would have gone to trial, it was appropriate
for the court to consider whether ‘‘a decision to reject
the plea bargain would have been rational under the
circumstances.’’ Padilla v. Kentucky, supra, 559 U.S.
372. The habeas court made an explicit finding that the
petitioner ‘‘was not concerned about the immigration
consequences of his plea, but rather the stigma attached
to a conviction for a sexual assault of a minor, and
reducing his jail sentence.’’ That finding is not clearly
erroneous because it is supported by Cohen’s testimony
at the habeas trial that the petitioner had been adamant
throughout their many discussions that he did not care
about being deported to Liberia and that his real con-
cern was in avoiding the cultural stigma associated with
a conviction involving misconduct of a sexual nature.
The court was free to credit Cohen’s testimony that
the petitioner was not concerned with the immigration
consequences of his plea and that he simply wanted to
avoid the potential of a conviction that would require
him to register as a sex offender, which he accom-
plished by pleading to the risk of injury charge. The
court similarly was free to reject the petitioner’s testi-
mony at the habeas trial that he would have rejected
the plea and gone to trial had he been advised that he
likely would face deportation as a result of his plea.
The court could have found that testimony not credible
and unreasonable, particularly in light of its rejection
of the petitioner’s assertion that his counsel had never
discussed possible immigration consequences with
him, and because the petitioner faced the real possibil-
ity, if he had chosen to go to trial and lost, of receiving
a much longer sentence, being required to register as
a sex offender, and deportation. It is simply not the
role of this court on appeal to second-guess credibility
determinations made by the habeas court. Martin v.
Commissioner of Correction, 141 Conn. App. 99, 104, 60
A.3d 997, cert. denied, 308 Conn. 923, 94 A.3d 638 (2013).
In sum, we are convinced that the habeas court prop-
erly determined that the petitioner failed to meet his
burden of demonstrating prejudice under Strickland.9
Because the petitioner failed to demonstrate that he
was prejudiced by his counsel’s alleged deficient perfor-
mance, the habeas court correctly denied his petition
for a writ of habeas corpus with respect to his ineffec-
tive assistance of counsel claim.
II
The petitioner also claims that his guilty plea to risk
of injury to a child was not made knowingly, intelli-
gently, and voluntarily because of the trial court’s fail-
ure to ascertain whether the petitioner fully understood
the precise immigration consequences of his plea, spe-
cifically, the near certitude of his deportation to Liberia.
The petitioner suggests that the trial court had an inde-
pendent obligation, distinct from his defense counsel’s
obligation under Padilla, to ensure that the petitioner
was fully aware of all potential immigration conse-
quences of a guilty plea, including the relative likelihood
of deportation in his particular case, and that the court
failed in this obligation. We find the petitioner’s argu-
ments unpersuasive and are bound by precedent of our
Supreme Court holding that courts are not constitution-
ally obligated to canvass a defendant regarding the
immigration consequences because they are not a direct
consequence of a guilty plea. See State v. Malcolm,
supra, 257 Conn. 663 n.12. ‘‘The failure to inform a
defendant as to all possible indirect and collateral con-
sequences does not render a plea unintelligent or invol-
untary in a constitutional sense.’’ State v. Gilnite, 202
Conn. 369, 383 n.17, 521 A.2d 547 (1987).10
We begin our analysis by first setting forth the law
governing the entry of guilty pleas. As established by
the United States Supreme Court in Boykin v. Alabama,
395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969),
‘‘unless a plea of guilty is made knowingly and volunta-
rily, it has been obtained in violation of due process
and is therefore voidable. . . . A plea of guilty is, in
effect, a conviction, the equivalent of a guilty verdict by
a jury. . . . In choosing to plead guilty, the defendant
is waiving several constitutional rights, including his
privilege against self-incrimination, his right to trial by
jury, and his right to confront his accusers. . . . These
considerations demand the utmost solicitude of which
courts are capable in canvassing the matter with the
accused to make sure he has a full understanding of
what the plea connotes and its consequences. . . . We
therefore require the record affirmatively to disclose
that the defendant’s choice was made intelligently and
voluntarily.’’ (Citations omitted; internal quotation
marks omitted.) State v. Andrews, 253 Conn. 497, 502–
503, 752 A.2d 49 (2000).
‘‘The Boykin constitutional essentials for the accep-
tance of a plea of guilty are included in our rules and
are reflected in Practice Book §§ [39-19 and 39-20]. . . .
Those rules provide that the trial court must not accept
a guilty plea without first addressing the defendant per-
sonally in open court and determining that the defen-
dant fully understands the items enumerated in § 39-
19, and that the plea is made voluntarily pursuant to
§ 39-20. There is no requirement, however, that the
defendant be advised of every possible consequence of
such a plea. . . . Although a defendant must be aware
of the direct consequences of a plea, the scope of direct
consequences is very narrow.’’ (Citations omitted;
emphasis added; internal quotation marks omitted.)
Id., 504.
Immigration consequences of a plea are among those
that our Supreme Court already has indicated are collat-
eral in nature and, therefore, cannot implicate the con-
stitutional concerns of Boykin.11 In State v. Malcolm,
supra, 257 Conn. 653, the issue before the court was
whether a trial court properly had granted a defendant’s
motion to withdraw his guilty plea on the ground that
the court had failed specifically to mention all three
immigration and naturalization consequences set forth
in General Statutes § 54-1j, which imposes a statutory
requirement that trial courts not accept a guilty or nolo
contendere plea without first canvassing the accused to
ensure that he or she fully understands the immigration
consequences of the plea.12 Our Supreme Court con-
cluded that, just as with the canvass requirements set
forth in Practice Book § 39-19 to ensure that a plea is
voluntary, only substantial compliance with § 54-1j, not
a verbatim reading of the statutory language, is required.
State v. Malcolm, supra, 661–63. In reaching that conclu-
sion, the court also noted: ‘‘Although we do not mean
to minimize the potential impact of the immigration
and naturalization consequences of a plea, they are not
of constitutional magnitude: The statutory mandate
[of § 54-1j] . . . cannot transform this collateral conse-
quence into a direct consequence of the plea. It can
only recognize that this collateral consequence is of
such importance that the defendant should be informed
of its possibility.’’ (Emphasis added; internal quotation
marks omitted.) Id., 663 n.12.
In the present case, it is undisputed that the trial court
substantially complied with § 54-1j. The court informed
the petitioner that if he was not a citizen of the United
States, pleading guilty to the risk of injury charge could
result ‘‘in deportation, exclusion from admission, [and]
denial of your naturalization rights pursuant to the laws
of the United States.’’ The court asked the petitioner
whether he had discussed these possible consequences
with his attorney, and the petitioner answered in the
affirmative. Counsel also indicated to the court that he
had discussed the consequences with the petitioner
‘‘several times in great detail . . . .’’ The court asked
the petitioner if he wished to consult further with his
attorney about ‘‘anything more about that issue at all
before I go forward,’’ to which the petitioner responded
that he was ‘‘all set . . . .’’ A court is permitted to rely
upon a defendant’s answer given in response to a plea
canvass. See State v. Johnson, 253 Conn. 1, 40, 751 A.2d
298 (2000), citing Bowers v. Warden, 19 Conn. App. 440,
443, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d
534 (1989).
Although the petitioner urges that the United States
Supreme Court in Padilla rejected as an analytical tool
evaluating whether immigration consequences are
direct versus collateral, it did so only in the context
of an ineffective assistance claim, which implicates a
petitioner’s sixth amendment right to counsel. See Pad-
illa v. Kentucky, supra, 559 U.S. 366. The present claim
involves whether the trial court properly ensured that
the plea was knowing and voluntary and, thus, in confor-
mance with those rights identified in Boykin, which
did not include protection of the petitioner’s right to
counsel.13 Padilla, therefore, is not directly applicable.
Accordingly, we are bound by the Supreme Court’s prior
rulings, unless reversed or modified, that immigration
consequences are collateral to a guilty plea and, thus,
a court is not constitutionally required to canvass a
defendant regarding immigration consequences in
order to ensure that a plea is knowingly and voluntarily
made. See Anderson v. Commissioner of Correction,
148 Conn. App. 641, 645, 85 A.3d 1240, cert. denied, 311
Conn. 945, 90 A.3d 976, cert. denied sub nom. Anderson
v. Dzurenda, U.S. , 135 S. Ct. 201, 190 L. Ed.
2d 155 (2014) (‘‘[i]t is axiomatic that this court, as an
intermediate body, is bound by Supreme Court prece-
dent and [is] unable to modify it’’ [internal quotation
marks omitted]). We conclude that the habeas court
properly denied the petitioner’s due process claim that
his plea was not knowingly and voluntarily made.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The habeas court granted certification to appeal from the judgment.
2
At the time of the habeas trial, the petitioner’s mother, his three siblings,
and his then ten year old son continued to reside in Liberia.
3
The original information had charged the petitioner with risk of injury to
a child under subdivision (2) of subsection (a) of § 53-21, which criminalizes
contact with the intimate parts of a child in a sexual or indecent manner
and is a class B felony. By contrast, subdivision (1) of subsection (a) of
§ 53-21 does not require proof of misconduct of a sexual nature and is a
class C felony. Furthermore, by pleading to risk of injury under § 53-21
(a) (1) rather than § 53-21 (a) (2), the petitioner would avoid mandatory
registration as a sex offender in accordance with General Statutes § 54-251
(a). See State v. Davenport, 127 Conn. App. 760, 766, 15 A.3d 1154 (2011);
see also General Statutes § 54-250 (2) (providing that ‘‘[c]riminal offense
against a victim who is a minor,’’ as term is used in sex offender registry
statute § 54-251 [a], includes a violation of ‘‘subdivision [2] of subsection
[a] of section 53-21’’).
4
See North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
5
The petitioner’s counsel indicated in her brief to this court that the
petitioner has since been deported to Liberia. As a result of that representa-
tion, we asked the parties to be prepared to address at oral argument
before this court, inter alia, whether the petitioner’s deportation rendered
the present appeal moot pursuant to our Supreme Court’s holding in State
v. Aquino, 279 Conn. 293, 901 A.2d 1194 (2006). In Aquino, the 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 his motion,
he had claimed that his plea was not knowingly and voluntarily made because
counsel never advised him that he faced almost certain deportation as a
result of the plea. Id., 297. Our Supreme Court determined that the appeal
was moot because the defendant was deported during the pendency of the
appeal, and there was an ‘‘absence of any evidence that the defendant’s
guilty plea was the sole reason for his deportation . . . .’’ Id., 298.
Here, both parties argued that the present appeal is not moot because
the record clearly reflects that the petitioner’s guilty plea was the sole basis
for his removal and, therefore, there was practical relief that could be
afforded if this court were to vacate his plea. The parties’ assertions are
supported by the record. Our review of the record further shows that the
petitioner apparently had no other criminal record that would bar his reenter-
ing this country legally. See Quiroga v. Commissioner of Correction, 149
Conn. App. 168, 174–75, 87 A.3d 1171 (finding appeal moot because even
if immigration court predicated deportation order exclusively on larceny
conviction challenged by petitioner, he still could not obtain any practical
relief because, as he acknowledged before habeas court, he would be perma-
nently barred from reentering the country legally because of prior narcotics
convictions), cert. denied, 311 Conn. 950, 91 A.3d 462 (2014). Accordingly,
on the basis of the record before us, we conclude that the present appeal
is not moot, despite the petitioner’s deportation.
6
The petitioner also alleged that counsel was ineffective because he failed
to adequately advise the petitioner about the length of time he actually
would have to serve under the terms of the plea agreement. He later withdrew
that aspect of his ineffective assistance claim, however, in his posttrial brief.
7
‘‘In Padilla, the United States Supreme Court considered whether advis-
ing a noncitizen criminal defendant of the possible deportation consequences
of a guilty plea falls within the scope of representation required of criminal
defense attorneys by the sixth amendment to the federal constitution and
concluded that it did. . . . The court reasoned that changes to our immigra-
tion law have dramatically raised the stakes of a noncitizen’s criminal convic-
tion. The importance of accurate legal advice for noncitizens accused of
crimes has never been more important. These changes confirm our view
that, as a matter of federal law, deportation is an integral part—indeed,
sometimes the most important part—of the penalty that may be imposed
on noncitizen defendants who plead guilty to specified crimes. . . . The
court continued: We have long recognized that deportation is a particularly
severe penalty . . . but it is not, in a strict sense, a criminal sanction.
Although removal proceedings are civil in nature . . . deportation is never-
theless intimately related to the criminal process. Our law has enmeshed
criminal convictions and the penalty of deportation for nearly a century
. . . . And, importantly, recent changes in our immigration law have made
removal nearly an automatic result for a broad class of noncitizen offenders.
Thus, we find it most difficult to divorce the penalty from the conviction
in the deportation context. . . . Moreover, we are quite confident that non-
citizen defendants facing a risk of deportation for a particular offense find
it even more difficult. . . . The court thus concluded that advice regarding
deportation is not categorically removed from the ambit of the [s]ixth
[a]mendment right to counsel.’’ (Citations omitted; internal quotation marks
omitted.) Thiersaint v. Commissioner of Correction, 316 Conn. 89, 101–102,
111 A.3d 829 (2015).
8
It is well settled that ‘‘critical stages’’ includes those related to the enter-
ing of a guilty plea. See Missouri v. Frye, U.S. , 132 S. Ct. 1399,
1405, 182 L. Ed. 2d 379 (2012).
9
At oral argument before this court, the petitioner seemed to suggest that
we should view counsel’s purported failure to properly advise the petitioner
regarding the near certainty of deportation in the present case as something
akin to a structural error that should have precluded resolution of the
petitioner’s claim solely on the basis of his failure to satisfy Strickland’s
prejudice prong. We are unconvinced.
‘‘A structural error creates a defect in the trial mechanism such that, while
it is virtually impossible to pinpoint the exact harm, it remains abundantly
clear that the trial process was flawed significantly. For this reason, [e]rrors
of this magnitude are per se prejudicial and require that the underlying
conviction be vacated.’’ (Emphasis omitted; internal quotation marks omit-
ted.) State v. Lopez, 271 Conn. 724, 739, 859 A.2d 898 (2004). ‘‘Structural
[error] cases defy analysis by harmless error standards because the entire
conduct of the trial, from beginning to end, is obviously affected . . . .
This court has found error to be structural only when the error renders a
trial fundamentally unfair and is not susceptible to a harmless error analysis
. . . .’’ (Citations omitted; emphasis added; internal quotation marks omit-
ted.) State v. Brown, 279 Conn. 493, 504–505, 903 A.2d 169 (2006).
Claims regarding a violation of the standards set forth in Padilla simply
do not rise to the level of structural error. There may be instances, as in
the present case, in which an alien criminal defendant is not particularly
concerned with deportation or, in fact, may even wish to return to his
native country. In such cases, a defense counsel’s failure to properly convey
immigration consequences will not play a significant role in the defendant’s
decision to accept a plea, and, thus, any error would be harmless. We cannot
conclude that Padilla claims generally will be unsusceptible to harmless
error analysis, a standard that generally is applied whenever assessing claims
of constitutional violations. Id., 505.
10
We note that the respondent argued in his summation before the habeas
court that the petitioner’s claim was procedurally defaulted and, thus, should
not properly be considered by the court. The respondent, however, never
raised procedural default in his response to the habeas petition, the habeas
court made no findings with respect to this argument, and the respondent
has not pursued it on appeal. See Solek v. Commissioner of Correction, 107
Conn. App. 473, 479 n.2, 946 A.2d 239, cert. denied, 289 Conn. 902, 957 A.2d
873 (2008). Accordingly, we do not reach the issue of whether this claim is
one that is subject to the defense of procedural default.
11
The petitioner’s counsel conceded at oral argument before this court
that this is the current state of the law in Connecticut.
12
General Statutes § 54-1j provides: ‘‘(a) The court shall not accept a plea
of guilty or nolo contendere from any defendant in any criminal proceeding
unless the court first addresses the defendant personally and determines
that the defendant fully understands that if the defendant is not a citizen
of the United States, conviction of the offense for which the defendant has
been charged may have the consequences of deportation or removal from
the United States, exclusion from readmission to the United States or denial
of naturalization, pursuant to the laws of the United States. If the defendant
has not discussed these possible consequences with the defendant’s attor-
ney, the court shall permit the defendant to do so prior to accepting the
defendant’s plea.
‘‘(b) The defendant shall not be required at the time of the plea to disclose
the defendant’s legal status in the United States to the court.
‘‘(c) If the court fails to address the defendant personally and determine
that the defendant fully understands the possible consequences of the defen-
dant’s plea, as required in subsection (a) of this section, and the defendant
not later than three years after the acceptance of the plea shows that the
defendant’s plea and conviction may have one of the enumerated conse-
quences, the court, on the defendant’s motion, shall vacate the judgment,
and permit the defendant to withdraw the plea of guilty or nolo contendere,
and enter a plea of not guilty.’’
13
The fundamental rights discussed in Boykin v. Alabama, supra, 395 U.S.
243, were the fifth amendment privilege against self-incrimination, and the
sixth amendment rights to a jury trial and to confront one’s accusers. See
State v. Fagan, 280 Conn. 69, 123–24, 905 A.2d 1101 (2006) (Vertefeuille, J.,
dissenting), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236
(2007). Those rights are applicable to state criminal proceedings pursuant
to the due process clause of the fourteenth amendment. See State v. West,
274 Conn. 605, 622 n.26, 877 A.2d 787, cert. denied, 546 U.S. 1049, 126 S.
Ct. 775, 163 L. Ed. 2d 601 (2005); State v. Moore, 293 Conn. 781, 784 n.2,
981 A.2d 1030 (2009), cert. denied, 560 U.S. 954, 130 S. Ct. 3386, 177 L. Ed.
2d 306 (2010).