Diaz v. Commissioner of Correction ( 2020 )

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RAUL DIAZ v. COMMISSIONER OF CORRECTION
(AC 39651)
Elgo, DiPentima and Bear, Js.
Syllabus
The petitioner, who had been convicted, on a guilty plea, of the crime of
home invasion, sought a writ of habeas corpus, claiming, inter alia, that
his trial counsel had provided ineffective assistance. The habeas court
rendered judgment denying the habeas petition, from which the peti-
tioner, on the granting of certification, appealed to this court. On appeal,
he claimed that the habeas court incorrectly concluded that his trial
counsel’s failure to file a motion to dismiss the home invasion charge,
to which the petitioner had pleaded guilty pursuant to North Carolina
v. Alford (400 U.S. 25), did not constitute ineffective assistance. Held
that the petitioner could not prevail on his claim of ineffective assistance
of counsel, as he failed to demonstrate that he was prejudiced by his
trial counsel’s alleged deficient performance; there was no evidence in
the record showing that, but for his trial counsel’s alleged deficient
performance, the petitioner would have insisted on going to trial, and
there was nothing to indicate that the dismissal of the home invasion
charge would have resulted in any meaningful reduction in the petition-
er’s exposure to a lengthy period of incarceration.
Submitted for disposition October 15—officially released November 10, 2020
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Oliver, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court, DiPen-
tima, C. J., and Elgo and Bear, Js., which affirmed
the habeas court’s judgment, and the petitioner, on the
granting of certification, appealed to the Supreme
Court, which reversed the judgment of this court and
remanded the case to this court for further proceed-
ings. Affirmed.
Deren Manasevit, assigned counsel, for the appel-
lant (petitioner).
Melissa Patterson, assistant state’s attorney, with
whom, on the brief, were Matthew C. Gedansky, state’s
attorney, and David M. Carlucci, assistant state’s attor-
ney, for the appellee (respondent).
Opinion
BEAR, J. This case returns to this court on remand
from our Supreme Court. The petitioner, Raul Diaz,
appeals from the judgment of the habeas court denying
his amended petition for a writ of habeas corpus. The
sole question presented by the petitioner on appeal is
‘‘[d]id the habeas court erroneously conclude that trial
counsel’s failure to file a motion to dismiss the charge of
home invasion did not constitute ineffective assistance
under Strickland v. Washington [466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]?’’ The petitioner
had pleaded guilty to that charge pursuant to the
Alford doctrine.1
This court, however, affirmed the judgment of the
habeas court, after raising, sua sponte, the issue of
whether the petitioner had waived his right to raise a
claim of ineffective assistance of counsel and deciding
that the petitioner did in fact waive that right by plead-
ing guilty under the Alford doctrine. Diaz v. Commis-
sioner of Correction, 185 Conn. App. 686, 689, 198 A.3d
171 (2018), rev’d, 335 Conn. 53, 225 A.3d 953 (2020).
The petitioner then appealed the judgment of this court
to our Supreme Court, alleging that this court ‘‘improp-
erly raised and decided the unpreserved issue of waiver
without first providing the parties with an opportunity
to be heard on that issue . . . .’’ Diaz v. Commissioner
of Correction, 335 Conn. 53, 54, 225 A.3d 953 (2020).
Our Supreme Court granted the petition for certification
to appeal, ‘‘limited to the following issue: ‘Did the Appel-
late Court properly affirm the judgment of the habeas
court on a legal ground that was not raised or decided
in the habeas court and never raised or briefed by the
parties in the Appellate Court?’ ’’ Id., 57. Our Supreme
Court answered that question in the negative and
remanded the case to this court with the following
rescript: ‘‘The judgment of the Appellate Court is
reversed and the case is remanded to that court for
further proceedings in accordance with this opinion.’’
Id., 62. The rescript of our Supreme Court presents this
court with two possible courses of action. The first is
to proceed ‘‘in a manner . . . consistent with [its] deci-
sion in Blumberg [Associates Worldwide, Inc. v.
Brown & Brown of Connecticut, Inc., 311 Conn. 123,
143, 84 A.3d 840 (2014)]’’ with respect to the waiver
issue. Diaz v. Commissioner of Correction, supra, 335
Conn. 61. The second is to decide the petitioner’s appeal
on the basis of his ineffective assistance of counsel
claim, which previously has been briefed and argued
by the parties. We take the latter course of action and
affirm the judgment of the habeas court.
The following factual and procedural background is
relevant to our resolution of the petitioner’s appeal on
remand.2 On October 27, 2011, the petitioner entered
the Ellington home of the seventy-seven year old victim
when the victim was not present. While the petitioner
was still in the home, the victim returned. The petitioner
asked the victim to step aside so that he could flee the
home, but the victim refused. The petitioner then struck
the victim with a jewelry box, which resulted in a lacera-
tion on his head, as well as a broken nose and cheek-
bone. After taking the victim’s wallet and car keys, the
petitioner fled in the victim’s car and later was appre-
hended.
The petitioner was charged in a substitute informa-
tion with two counts of home invasion in violation of
General Statutes § 53-100aa,3 two counts of burglary in
the first degree in violation of General Statutes § 53a-
101 (a) (1) and (2), one count each of larceny in the
third degree in violation of General Statutes § 53a-124,
larceny in the fourth degree in violation of General
Statutes § 53a-125, assault in the second degree in viola-
tion of General Statutes § 53a-60b, and robbery in the
first degree involving a dangerous instrument in viola-
tion of General Statutes § 53a-134 (a) (3). On April 26,
2013, after the petitioner entered into a plea agreement
with the state, he pleaded guilty under the Alford doc-
trine to one count of home invasion in violation of
§ 53a-100aa (a) (2). After a thorough canvass, the court
accepted the plea, rendered a judgment of conviction,
and sentenced the petitioner in accordance with the
plea agreement to twenty-five years of imprisonment.
The petitioner did not appeal from the judgment of con-
viction.
Thereafter, the petitioner commenced this habeas
action. On February 25, 2016, the petitioner filed an
amended petition for a writ of habeas corpus, alleging,
among other claims, that his trial counsel had rendered
ineffective assistance by failing to file a motion to dis-
miss the home invasion charge on the ground that it
was duplicative of the burglary in the first degree
charge. After a trial, the habeas court denied the petition
for a writ of habeas corpus. In its memorandum of
decision, the court concluded that the petitioner had
failed to establish both that his trial counsel deficiently
performed by not filing a motion to dismiss the home
invasion charge and that there was prejudice to him as
result of trial counsel’s decision not to file such a
motion. The court found that, although the petitioner’s
trial counsel had agreed with the state’s assessment that
the petitioner had violated the home invasion statute,
he nonetheless argued, although unsuccessfully, to the
court and the prosecutor that the home invasion charge
should be dropped and that, in any event, the petitioner
should be allowed to plead to the burglary in the first
degree charge instead of the home invasion charge.
Moreover, the court agreed with the testimony of the
petitioner’s trial counsel that there was no good faith
basis on which to bring a motion to dismiss the home
invasion charge in the trial court. After the court ren-
dered its judgment denying the habeas petition, the
petitioner filed a petition for certification to appeal to
this court, which the habeas court granted.
In addressing the petitioner’s sole claim on appeal,
we first set forth the applicable standard of review.
Although ‘‘[t]he underlying historical facts found by the
habeas court may not be disturbed unless the findings
were clearly erroneous’’; (internal quotation marks
omitted) Mozell v. Commissioner of Correction, 87
Conn. App. 560, 564–65, 867 A.2d 51, cert. denied, 273
Conn. 934, 875 A.2d 543 (2005); ‘‘the effectiveness of
an attorney’s representation of a criminal defendant is
a mixed determination of law and fact that . . .
requires plenary review . . . .’’ (Internal quotation
marks omitted.) Ledbetter v. Commissioner of Correc-
tion, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert.
denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126
S. Ct. 1368, 164 L. Ed. 2d 77 (2006). ‘‘To succeed on
a claim of ineffective assistance of counsel, a habeas
petitioner must satisfy the two-pronged test articulated
in Strickland v. Washington, [supra, 466 U.S. 687].
Strickland requires that a petitioner satisfy both a per-
formance prong and a prejudice prong.’’ (Internal quota-
tion marks omitted.) Small v. Commissioner of Correc-
tion, 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). When reviewing a claim of
ineffective assistance of counsel, a ‘‘court can find
against a petitioner on either ground, whichever is eas-
ier.’’ (Emphasis added.) Valeriano v. Bronson, 209
Conn. 75, 86, 546 A.2d 1380 (1988). To satisfy the preju-
dice prong of Strickland, ‘‘a claimant must demonstrate
that ‘there is a reasonable probability that, but for coun-
sel’s unprofessional errors, the result of the proceeding
would have been different.’ ’’ Ledbetter v. Commis-
sioner of Correction, supra, 458, quoting Strickland v.
Washington, supra, 694. However, in the context of a
guilty plea, our Supreme Court has determined that,
‘‘[u]nder the test in Hill [v. Lockhart, 474 U.S. 52, 59,
106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)], in which the
United States Supreme Court modified the prejudice
prong of the Strickland test for claims of ineffective
assistance when the conviction resulted from a guilty
plea, the evidence must demonstrate 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.’’ 4 (Internal quota-
tion marks omitted.) Washington v. Commissioner of
Correction, 287 Conn. 792, 833, 950 A.2d 1220 (2008).
On appeal, the petitioner argues that his trial counsel
provided ineffective assistance by failing to file a motion
to dismiss the home invasion charge to which he had
ultimately pleaded guilty. There was no evidence before
the habeas court, however, showing that, but for his trial
counsel’s alleged deficient performance, the petitioner
would have insisted on going to trial. Furthermore,
there is nothing in the habeas record indicating that
the dismissal of the home invasion charge would have
resulted in any meaningful reduction in the petitioner’s
exposure to a lengthy period of incarceration. The peti-
tioner’s initial exposure was, without enhancements,
eighty-one years. After additional charges were added,
including a second home invasion charge, the petition-
er’s exposure became 121 years, without enhance-
ments. As the petitioner himself concedes, ‘‘even with-
out the home invasion charge, [he] was charged with
enough offenses to enable the court to impose what
could effectively be a life long sentence. Removing the
home invasion’s potential . . . sentence . . . would
not have denied the state the significant sentence it
was seeking.’’ For this reason, and because there is no
evidence in the record to establish that, but for his trial
counsel’s allegedly deficient performance, the peti-
tioner would have insisted on going to trial, the petition-
er’s claim of ineffective assistance of counsel cannot
succeed because of his failure to demonstrate that he
was prejudiced by any failure of his trial counsel. See
Washington v. Commissioner of Correction, supra, 287
Conn. 833.
This conclusion is further supported by the petition-
er’s appellate brief, in which his arguments focus on
the inapplicability of the home invasion statute and the
structure of the plea agreement, instead of on the Hill
requirement that, but for counsel’s deficient perfor-
mance, he would have insisted on going to trial. Specifi-
cally, the petitioner claims in his brief, without any
factual support in the habeas court record, that, but
for his trial counsel’s alleged deficient performance, he
would have ‘‘been afforded the opportunity to plead
guilty to . . . a class B felony carrying a minimum sen-
tence of five years rather than a class [A] felony carrying
a minimum sentence of ten years.’’ Thus, even if his
trial counsel had filed a motion to dismiss the home
invasion charge and that motion had been granted, the
petitioner has failed to demonstrate a reasonable proba-
bility that he would not have pleaded guilty and would
have insisted on going to trial. Accordingly, the peti-
tioner has failed to satisfy the prejudice prong of the
Hill test, and his claim of ineffective assistance of coun-
sel fails.
The judgment is affirmed.
In this opinion the other judges concurred.
1
See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970). ‘‘A defendant who pleads guilty under the Alford doctrine does
not admit guilt but acknowledges that the state’s evidence against him is
so strong that he is prepared to accept the entry of a guilty plea.’’ (Internal
quotation marks omitted.) State v. Webb, 62 Conn. App. 805, 807 n.1, 772
A.2d 690 (2001).
2
The facts are as recited by the state during the plea canvass of the peti-
tioner.
3
The second of the home invasion charges was added by the state immedi-
ately prior to the petitioner’s anticipated trial, which did not take place. All
references herein to the home invasion charge are to the first home invasion
charge to which the petitioner pleaded guilty.
4
The petitioner did not mention the Hill prejudice prong in his appellate
brief. The respondent, the Commissioner of Correction, in his appellate
brief, set forth the Hill prejudice prong as the standard to be applied in this
appeal. The petitioner, in his reply brief, did not dispute the applicability
of the Hill prejudice prong to this appeal.