O'Reagan v. Commissioner of Correction ( 2022 )

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O’NEIL O’REAGAN v. COMMISSIONER
OF CORRECTION
(AC 44390)
Moll, Alexander and Bear, Js.
Syllabus
The petitioner, who had been convicted on guilty pleas, of the crimes of
burglary in the second degree, conspiracy to commit robbery in the
second degree and sale of a narcotic substance, sought a writ of habeas
corpus, claiming, inter alia, ineffective assistance and deficient perfor-
mance of his trial counsel. Following his pleas, the trial court sentenced
the petitioner to a ten year term of incarceration, execution suspended
after four years, followed by five years of probation for the burglary
conviction, three years of incarceration for the robbery conviction, and
one year of incarceration for the narcotics conviction, to be served
concurrently. Several years later, the petitioner, who was born in
Jamaica, was taken into federal immigration custody and removal pro-
ceedings were initiated. At the time he was taken into custody, the
sentences for his robbery and narcotics convictions had fully expired,
but he was still serving his sentence for burglary due to the pendency
of a violation of probation, which interrupted the period of the sentence.
Before the habeas court, the respondent Commissioner of Correction
alleged that the court lacked jurisdiction over the habeas petition
because the petitioner was not in custody as a result of the convictions
and sentences he challenged, and, after a hearing, the court determined
that, at the time the petitioner filed his habeas petition, he was not in
custody on the robbery and narcotics convictions and dismissed the
claims related to those convictions. Following a trial on the remaining
claims, the court rendered judgment denying the petition, from which the
petitioner, on the granting of certification, appealed to this court. Held:
1. The habeas court properly determined that the petitioner was not in
custody on the convictions of conspiracy to commit robbery and sale
of a narcotic substance at the time he filed the habeas action and it did
not have jurisdiction over those two convictions: it was undisputed that
the petitioner was sentenced to concurrent sentences of incarceration
of three years for the robbery conviction and one year for the narcotics
conviction, and, because the sentences for those two convictions fully
expired before the petitioner filed his habeas petition, the petitioner was
no longer in custody on those two convictions; moreover, the petitioner’s
claim that, if the habeas court did not have jurisdiction over all three
convictions, it would be unable to fashion an appropriate remedy with
respect to his ineffective assistance claims, misinterpreted the aggregate
package theory of sentencing as expanding the habeas court’s ability
to decide claims regarding convictions that fully expired prior to the
filing of the habeas petition, as the aggregate package theory does not
expand the jurisdiction of the habeas court to decide claims regarding
convictions that have fully expired prior to the filing of the habeas peti-
tion.
2. The habeas court did not err in denying the habeas petition with respect
to the petitioner’s claim that his trial counsel provided ineffective assis-
tance with respect to the petitioner’s guilty plea to the charge of burglary
in the second degree:
a. The petitioner could not prevail on his claim that his trial counsel
failed to investigate and to advise him adequately regarding the strengths
and weaknesses of the state’s case, the record having revealed that
the habeas court credited trial counsel’s testimony and found that trial
counsel had reviewed the discovery provided to him and determined
that no further investigation was necessary, and the petitioner did not
provide trial counsel with any potential witnesses to investigate in sup-
port of a defense, did not provide any additional favorable evidence that
would have supported his defense at trial, and failed to show that further
investigation by trial counsel would have yielded any evidence that would
have aided in his defense at trial or that would have altered trial counsel’s
advice regarding the strengths and weaknesses of the state’s case against
the petitioner.
b. The petitioner could not prevail on his claim that his trial counsel
rendered deficient performance by failing to advise him adequately
regarding the immigration consequences of his guilty plea; the decision
in Padilla v. Kentucky (559 U.S. 356), requiring defense counsel to advise
a noncitizen client of the immigration consequences of a guilty plea,
does not apply retroactively under federal law pursuant to Chaidez
v. United States (568 U.S. 342) or under Connecticut law pursuant to
Thiersaint v. Commissioner of Correction (316 Conn. 89), and, as such,
the rule announced in Padilla did not apply to the petitioner’s case
because such advice was not constitutionally required under either the
United States or the Connecticut constitution at the time the petitioner
entered his guilty plea.
Submitted on briefs January 4—officially released April 26, 2022
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, where the court, Newson, J., dismissed in part
the habeas petition; thereafter, the remaining claims
were tried to the court, Bhatt, J., who denied the habeas
petition as to the remaining claims; judgment dismissing
in part and denying the petition, from which the peti-
tioner, on the granting of certification, appealed to this
court. Affirmed.
Deren Manasevit, assigned counsel, filed a brief for
the appellant (petitioner).
Sarah Hanna, senior assistant state’s attorney, Mar-
garet E. Kelley, state’s attorney, and Amy L. Bepko-
Mazzocchi, supervisory assistant state’s attorney, filed
a brief for the appellee (respondent).
Opinion
ALEXANDER, J. The petitioner, O’Neil O’Reagan,
appeals from the judgment of the habeas court dismiss-
ing in part and denying his petition for a writ of habeas
corpus. The petitioner claims that the court erred (1)
in dismissing in part his habeas petition after finding
that he was not in custody on two of his challenged
convictions, and (2) in denying his habeas petition after
concluding that his trial counsel had not provided inef-
fective assistance. We disagree with both of the petition-
er’s claims and, therefore, affirm the judgment of the
habeas court.
The habeas court’s memorandum of decision sets
forth the following facts and procedural history. The
petitioner’s convictions for burglary and conspiracy to
commit robbery ‘‘stemmed from two incidents that took
place in close temporal proximity on November 5, 2007.
On that date . . . several unknown males entered the
apartment of David Gunnison in Shelton . . . . The
males who broke into the apartment demanded to know
where drugs were hidden in the apartment. One male
was armed with what appeared to be a small silver
handgun, another with a baseball bat and the third with
a small shovel. . . . A small amount of marijuana was
taken from the apartment, as well as cell phones, cash
and personal possessions of the other individuals pres-
ent in the apartment.’’
Gunnison called the police to report the burglary and
admitted to selling drugs. He called his stolen cell phone
pretending to be a customer seeking to buy drugs and
set up a purchase. Police officers set up surveillance
at the agreed upon location for the transaction and
observed a vehicle drive past Gunnison. Gunnison told
officers that the vehicle ‘‘was occupied by several black
males and one Hispanic male. Three males exited the
vehicle and called to Gunnison to approach them. At
this point, officers began to approach the area and the
three males fled the scene. Two of the individuals were
apprehended after a chase and identified as Shawn
Troupe and Anthony Martino. The third individual
escaped. Shortly thereafter, the police stopped the
[vehicle] and arrested the occupants: Ashley Doy and
Joseph Pellechio.’’ The four individuals apprehended
by the police first denied involvement in the residential
burglary but eventually made statements indicating
their involvement in the burglary and a plan ‘‘to arrange
the sale of the [stolen] drugs as a pretense to rob who-
ever the caller was.’’ The individuals identified the peti-
tioner as a participant in both the burglary and the
conspiracy to rob Gunnison.
‘‘Based on this information, a search warrant for [the
petitioner’s] residence was approved. A cell phone from
the residential burglary was found inside his residence.
[The petitioner] agreed to speak with officers and stated
that he, along with Troupe, Pellechio, Doy and Martino
did go to Gunnison’s residence to buy marijuana, but
[claimed that] there was no burglary. They all returned
to his house and then the other four left for a while
without him, returning with cell phones and marijuana.
They did not explain the source of either and then
left again to sell marijuana to an unknown individual.
According to [the petitioner], Pellechio called him the
next day to say that the others had been arrested. [The
petitioner] then disposed of the cell phones left behind
in the garbage can outside his house. Police recovered
four cell phones and three iPods from a black plastic
bag in the garbage.’’ The petitioner was arrested and
charged in connection with these incidents as a result
of the police investigation.
On July 21, 2008, the petitioner entered guilty pleas
to burglary in the second degree in violation of General
Statutes (Rev. to 2007) § 53a-102, conspiracy to commit
robbery in the second degree in violation of General
Statutes § 53a-48 and General Statutes (Rev. to 2007)
§ 53a-135, and sale of a narcotic substance in violation
of General Statutes (Rev. to 2007) § 21a-277 (a).1 The
plea agreement called for a maximum sentence of ten
years of incarceration, execution suspended after five
years, followed by five years of probation, with the right
to argue for a lesser sentence. On November 14, 2008,
the trial court sentenced the petitioner to serve a ten
year term of incarceration, execution suspended after
four years, followed by five years of probation for the
burglary conviction, three years of incarceration for the
conspiracy to commit robbery conviction, and one year
of incarceration for the sale of a narcotic substance
conviction. Each sentence imposed was ordered to be
served concurrently.
In 2017, the petitioner was taken into federal immigra-
tion custody and removal proceedings were initiated.2
At the time he was taken into custody, the sentences
for his convictions of conspiracy to commit robbery in
the second degree and sale of a narcotic substance
had fully expired. The petitioner was still serving his
sentence for the burglary in the second degree convic-
tion due to the pendency of a violation of probation,
which interrupted the period of the sentence. See Gen-
eral Statutes § 53a-31 (b).
In December, 2017, the petitioner initiated this habeas
action and, on August 15, 2018, he filed an amended
habeas petition, which contained three counts. In count
one, the petitioner alleged a due process violation pur-
suant to the United States and Connecticut constitu-
tions and claimed that his guilty pleas were ‘‘not made
knowingly, intelligently and voluntarily because he did
not know or understand the probability of deportation/
removal from the United States under the terms of the
plea agreement.’’ The petitioner alleged that, if he had
known the immigration consequences, he would not
have entered guilty pleas. In count two, the petitioner
alleged ineffective assistance of his trial counsel, Attor-
ney Mark Solak, pursuant to both the United States and
Connecticut constitutions, as a result of Solak’s (1)
failure to investigate adequately and advise him regard-
ing his plea and likelihood of success at trial, (2) failure
to adequately make his immigration status and the prob-
ability of deportation/removal part of the plea bar-
gaining process, and (3) ‘‘affirmative misadvice about
the probability of [his] deportation/removal from the
United States . . . .’’ Similarly, in count three, the peti-
tioner alleged that, under the Connecticut constitution,
Solak had rendered deficient performance for failing
to ‘‘adequately make [his] immigration status and the
probability of deportation/removal from the United
States part of the plea bargaining process’’ and failing
to advise him adequately regarding the probability of
deportation/removal under the terms of the plea. Only
counts two and three of the amended habeas petition
are relevant to this appeal.
In his return, the respondent, the Commissioner of
Correction, alleged, inter alia, that the court lacked
jurisdiction over the habeas petition because ‘‘the peti-
tioner was not ‘in custody’ as a result of the convictions
and sentence that he challenges.’’ After a hearing, the
court, Newson, J., on July 15, 2019, issued an oral deci-
sion in which it concluded that, at the time the petitioner
filed his habeas petition, he was not in custody on the
conspiracy to commit robbery in the second degree and
sale of a narcotic substance convictions. It concluded,
however, that the petitioner was in custody with respect
to his burglary conviction. Accordingly, the court dis-
missed in part the petitioner’s habeas claims related to
the conspiracy to commit robbery and narcotics convic-
tions.
A trial on the remaining claims was held on August
28, October 15, and December 17, 2019. On September
1, 2020, the habeas court, Bhatt, J., denied the petition
for a writ of habeas corpus. The court declined to revisit
Judge Newson’s dismissal of the petitioner’s challenges
to the conspiracy to commit robbery and narcotics con-
victions, concluding that this earlier dismissal was the
law of the case.3 With regard to the petitioner’s claims
of ineffective assistance of counsel, the court concluded
that Solak had not rendered deficient performance in
his investigation and advice to the petitioner. It further
concluded that Solak was not constitutionally required
to advise the petitioner of the immigration conse-
quences of his guilty plea. After denying the habeas
petition, the court granted the petition for certification
to appeal.
On appeal, the petitioner challenges (1) the dismissal
in part of his habeas petition by Judge Newson for lack
of subject matter jurisdiction and Judge Bhatt’s refusal
to revisit the dismissal, and (2) Judge Bhatt’s denial of
his habeas petition as to the remaining allegations after
concluding that his trial counsel had not provided inef-
fective assistance. We address each claim in turn.
I
The petitioner first claims that the habeas court erred
in dismissing in part his habeas petition for lack of
subject matter jurisdiction after concluding that, at the
time he filed the present habeas action, he was not in
custody on the conspiracy to commit robbery and sale
of a narcotic substance convictions. We conclude that
the habeas court properly determined that the peti-
tioner was not in custody on those two convictions and,
therefore, we affirm the dismissal.
The following additional facts and procedural history
are relevant to our resolution of this claim. On June
20, 2019, the court, Newson, J., issued an order and
scheduled a hearing, pursuant to Practice Book § 23-29,4
to determine whether the petition should be dismissed
because the court lacked jurisdiction. After argument,
the court issued an oral decision in which it dismissed
the claims in the petition regarding the conspiracy to
commit robbery and sale of a narcotic substance convic-
tions.
The court stated: ‘‘In 2008, the petitioner received a
one year and a three year concurrent sentence to [the
sentence for his burglary in the second degree convic-
tion]. . . . [For] consecutive sentences, our law specif-
ically allows a quote unquote technically expired con-
secutive sentence to be challenged. That is because the
resolution of one consecutive sentence will actually
have a significant and direct impact on the other sen-
tence since those are essentially considered one contin-
uing stream of incarceration. However here . . . the
claim is simply that the petitioner received two rela-
tively minimal concurrent sentences to the current sen-
tence [for burglary in the second degree] that he is
serving. Those sentences would’ve expired at the latest
some time in 2009 as to the one year concurrent sen-
tence and sometime in 2011 as to the three year concur-
rent sentence, which was some six years before this
petition was filed. Given the current status of our case
law that those periods of incarceration had fully expired
prior to the time the petition was filed . . . [and] [t]o
the extent that the petition makes allegations related
to those two convictions, the court dismisses those
claims pursuant to [Practice Book § 23-29], because the
habeas court lacks jurisdiction because the petitioner
was not in custody as defined under habeas law at the
time the petition was received.’’
In its decision after the habeas trial, the court, Bhatt,
J., declined to revisit the earlier decision in which the
court, Newson, J., dismissed the petitioner’s challenges
to his conspiracy to commit robbery and sale of a nar-
cotic substance convictions. With regard to this claim,
the court stated that, ‘‘[i]n order for this court to have
jurisdiction, [the petitioner] needed to be in custody
as a result of those convictions. The convictions for
conspiracy to commit robbery and sale of narcotics
expired long before the filing of the instant petition.
Judge Newson’s dismissal of those allegations is the law
of the case and this court sees no reason to revisit it.’’5
On appeal, the petitioner claims that the court erred
in concluding that he was not in custody on all three
convictions and, consequently, in dismissing in part his
habeas petition for lack of subject matter jurisdiction.
Specifically, he argues that ‘‘because the convictions
were interdependent parts of a global disposition, once
the jurisdictional prerequisite was met by his custody
on one of the convictions, the habeas court had jurisdic-
tion to reach all of the convictions covered by the global
disposition.’’ He further contends that the aggregate
package theory applies and gives the court authority
to reach all of the convictions and sentences in the
package and that the ‘‘habeas court would be unable
to fashion a remedy for ineffectiveness in connection
with [his] guilty plea to burglary if the court could
neither restructure the sentences on the other charges
to reflect the original intent of the parties nor nullify
the entire plea agreement, vacating all of [his] guilty
pleas.’’ We disagree.
We begin our analysis by setting forth the applicable
standard of review. ‘‘We have long held that because
[a] determination regarding a trial court’s subject matter
jurisdiction is a question of law, our review is plenary.
. . . The subject matter jurisdiction requirement may
not be waived by any party, and also may be raised by
a party, or by the court sua sponte, at any stage of the
proceedings, including on appeal.’’ (Internal quotation
marks omitted.) Richardson v. Commissioner of Cor-
rection, 298 Conn. 690, 696, 6 A.3d 52 (2010).
We next set forth the relevant legal principles that
govern our review of this claim. ‘‘It is well established
that, for a court to have jurisdiction to entertain a
habeas petition seeking to challenge the legality of a
criminal conviction, the petitioner must be in the cus-
tody of the respondent as the result of that conviction
at the time that the petition is filed.’’ (Emphasis in
original.) Goguen v. Commissioner of Correction, 341
Conn. 508, 528, 267 A.3d 831 (2021).
General Statutes § 52-466 (a) (1) provides in relevant
part that ‘‘[a]n application for a writ of habeas corpus
. . . shall be made to the superior court, or to a judge
thereof, for the judicial district in which the person
whose custody is in question is claimed to be illegally
confined or deprived of such person’s liberty.’’ Our
courts have explained that ‘‘the custody requirement in
§ 52-466 is jurisdictional in nature because the history
and purpose of the writ of habeas corpus establish that
the habeas court lacks the power to act on a habeas
petition absent the petitioner’s allegedly unlawful cus-
tody.’’ (Internal quotation marks omitted.) Vitale v.
Commissioner of Correction, 178 Conn. App. 844, 852,
178 A.3d 418 (2017), cert. denied, 328 Conn. 923, 181
A.3d 566 (2018). ‘‘[A] petitioner whose conviction has
expired fully prior to the filing of a habeas petition is
not in ‘custody’ on that conviction within the meaning
of § 52-466, despite the alleged existence of collateral
consequences flowing from that conviction.’’ Lebron v.
Commissioner of Correction, 274 Conn. 507, 530, 876
A.2d 1178 (2004), overruled in part on other grounds
by State v. Elson, 311 Conn. 726, 91 A.3d 862 (2014).
Our courts, however, have recognized an exception
to the custody requirement. ‘‘A habeas petitioner who
is serving consecutive sentences may challenge a future
sentence even though he is not serving that sentence
at the time his petition is filed . . . and he may chal-
lenge a consecutive sentence served prior to his current
conviction if success could advance his release date.
. . . In other words, the . . . courts view prior and
future consecutive sentences as a continuous stream
of custody for purposes of the habeas court’s subject
matter jurisdiction. . . . Our courts have not extended
this exception to concurrent sentences, which do not
create a continuous stream of custody because they do
not, by their nature, extend the term of incarceration.’’
(Citations omitted; emphasis omitted; internal quota-
tion marks omitted.) Foote v. Commissioner of Correc-
tion, 170 Conn. App. 747, 752?53, 155 A.3d 823, cert.
denied, 325 Conn. 902, 155 A.3d 1271 (2017); see also
Oliphant v. Commissioner of Correction, 274 Conn.
563, 574 n.9, 877 A.2d 761 (2005).
In the present case, the parties dispute whether the
habeas court had jurisdiction over two of the petition-
er’s convictions: the conspiracy to commit robbery con-
viction and the sale of a narcotic substance conviction.
It is undisputed, however, that on November 14, 2008,
the petitioner was sentenced to concurrent sentences
of incarceration of three years for the conspiracy to
commit robbery conviction and one year for the sale of
a narcotic substance conviction. Because the sentences
for those two convictions fully expired well before the
petitioner filed his habeas petition in December, 2017,
the petitioner was no longer in custody on those two
convictions. Furthermore, the exception to the custody
requirement discussed in Foote v. Commissioner of
Correction, supra, 170 Conn. App. 752–53, does not
apply because the petitioner’s sentences for those con-
victions were concurrent to the sentence for burglary.
Therefore, the habeas court correctly concluded that
it did not have jurisdiction over those two convictions.
The petitioner acknowledges that the exception to
the custody requirement that applies to consecutive
sentences does not apply in his case, but nonetheless
argues that the aggregate package theory of sentencing
allows the habeas court to exercise jurisdiction over
all three of his convictions because they were part of
a global plea agreement. The petitioner, however, misin-
terprets the aggregate package theory of sentencing as
expanding the habeas court’s ability to decide claims
regarding convictions that fully expired prior to the
filing of the habeas petition.
‘‘The purpose of the aggregate package theory of
sentencing is to ensure that, notwithstanding the judg-
ment of the reviewing court, the original sentencing
intent of the trial court is effectuated.’’ State v. Johnson,
316 Conn. 34, 40, 111 A.3d 447 (2015). Our Supreme
Court has held that ‘‘when a case involving multiple
convictions is remanded for resentencing, the trial court
is limited by the confines of the original sentence in
accordance with the aggregate package theory set forth
in State v. Raucci, [21 Conn. App. 557, 563, 575 A.2d
234 (1990)] and later adopted by [our Supreme Court]
in State v. Miranda, [260 Conn. 93, 129–30, 794 A.2d
506, cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L.
Ed. 2d 175 (2002)].
‘‘In Miranda, [our Supreme Court] recognized that
the defendant, in appealing his conviction and punish-
ment, has voluntarily called into play the validity of the
entire sentencing package, and, thus, the proper remedy
is to vacate it in its entirety. More significantly, the
original sentencing court is viewed as having imposed
individual sentences merely as component parts or
building blocks of a larger total punishment for the
aggregate convictions and, thus, to invalidate any part
of that package without allowing the court thereafter
to review and revise the remaining valid convictions
would frustrate the court’s sentencing intent. . . .
Accordingly, the [resentencing] court’s power under
these circumstances is limited by its original sentencing
intent as expressed by the original total effective sen-
tence . . . . It may, therefore, simply eliminate the
sentence previously imposed for the vacated convic-
tion, and leave the other sentences intact; or it may
reconstruct the sentencing package so as to reach a
total effective sentence that is less than the original
sentence but more than that effected by the simple
elimination of the sentence for the vacated conviction.
The guiding principle is that the court may resentence
the defendant to achieve a rational, coherent [sentence]
in light of the remaining convictions, as long as the
revised total effective sentence does not exceed the
original.’’ (Citation omitted; internal quotation marks
omitted.) State v. Tabone, 292 Conn. 417, 427–28, 973
A.2d 74 (2009).
The petitioner asserts that if the habeas court does
not have jurisdiction over all three convictions, it will be
unable to fashion an appropriate remedy with respect
to his ineffective assistance of counsel claims. The
aggregate package theory, however, merely provides a
remedy: after the court invalidates a conviction that is
part of an aggregate package, the court must vacate
the entire sentence and, upon remand, the resentencing
court may reconstruct the sentencing package or, alter-
natively, leave the sentence for the remaining valid con-
viction or convictions intact. See State v. Miranda, 274
Conn. 727, 735 n.5, 878 A.2d 1118 (2005). This remedy
does not expand the jurisdiction of the habeas court
to decide claims regarding convictions that have fully
expired prior to the filing of the habeas petition. The
aggregate package theory of sentencing does not apply
to the petitioner’s claim that he was ‘‘in custody’’ on
the conspiracy to commit robbery and narcotics convic-
tions and, therefore, his claim must fail. Consequently,
the petitioner also failed to establish his claim that
Judge Bhatt erred in declining to revisit the decision
of Judge Newson dismissing in part the habeas petition.
II
The petitioner next claims on appeal that the court
erred in denying his petition after concluding that Solak
had not provided ineffective assistance in connection
with Solak’s advice regarding the petitioner’s guilty
plea. Specifically, the petitioner argues that Solak failed
to investigate and to advise him adequately regarding
the strengths and weaknesses of the state’s case and the
immigration consequences of a guilty plea. We disagree
with both of these arguments.
A
The petitioner contends that Solak failed to investi-
gate and to advise him adequately regarding the
strengths and weaknesses of the state’s case, including
possible defenses that could be pursued at trial and
the sentence that he would likely receive if he were
convicted after a trial. We disagree.
The following additional facts, as found by the habeas
court, are relevant to our resolution of this claim. At
the habeas trial, the petitioner claimed that Solak was
‘‘ineffective in failing to investigate a potential defense
and in failing to advise him of the likelihood of success
at trial. [The petitioner] identifies this defense as a ‘lack
of objective evidence against [him] and the obvious
motive to curry favor with the state possessed by the
[codefendants].’ ’’ The court found that Solak ‘‘did not
conduct any independent investigation into the matter
but did review all the discovery provided to him and
made the assessment that no further investigation was
necessary. [Solak] noted that the petitioner did not pro-
vide him with any potential witnesses to investigate in
support of a defense. He testified that he viewed the
case against [the petitioner] as strong and the likelihood
of success at trial was slim. He conveyed this informa-
tion to [the petitioner]. It is unclear what [the petitioner]
seeks to have investigated. The information that would
support his defense—the lack of identification of [the
petitioner] by any of the individuals present inside the
residence, the numerous inconsistent statements given
by the codefendants and the number of perpetrators
of the burglary—were all contained within the police
reports and statements that were available to, and
reviewed by, [Solak]. Based on his analysis of the case,
faced with statements by all four codefendants that [the
petitioner] was involved in the residential burglary and
the attempted robbery thereafter, [Solak] made the
determination that a trial where the defense was that
[the petitioner] was either simply ‘along for the ride’
or not present at either incident would not be successful
and counseled [the petitioner] that if he wished to fol-
low that path, he would likely be convicted and face a
sentence of at least ten years.’’
The court further found that Solak ‘‘did not tell [the
petitioner] what he should do; rather he advised him
of the possible outcomes and their likelihood. . . .
[Solak] did not recollect whether he had given [the
petitioner] an estimate of the sentence he should expect
after trial if convicted but surmised that based on his
analysis of the case he would have advised [the peti-
tioner] to expect a sentence of greater than ten years’
incarceration.’’
The court reasoned that, even if the codefendants
could be cross-examined at a trial regarding ‘‘a con-
certed plan to point the finger at [the petitioner] and
their desire to receive favorable treatment by cooperat-
ing with the state, it does not then follow that the evi-
dence to be provided by the codefendants was unsub-
stantial or unreliable and would be dismissed by a jury.
None of these codefendants testified at the habeas trial;
thus, this court’s assessment of their potential testi-
mony is premised on the same statements and informa-
tion available to [Solak]. Certainly, [Solak] was correct
in advising [the petitioner] that if the jury believed one
of the codefendants that he was at or involved in the
planning of either of the incidents, he would be found
guilty. In addition, there was physical evidence—one
or more items that were reportedly taken during the
residential burglary—that was recovered at [the peti-
tioner’s] residence. . . .
‘‘[T]he court credits [Solak’s] testimony that he
reviewed the discovery provided to him, discussed the
state’s evidence with [the petitioner] and advised [the
petitioner] of his alternatives, including how he viewed
the evidence and the likely outcome at trial. There is
no deficient performance. This claim must be denied.’’
We begin by setting forth the applicable standard of
review. ‘‘Our standard of review of a habeas court’s
judgment on ineffective assistance of counsel claims is
well settled. In a habeas appeal, this court cannot dis-
turb the underlying facts found by the habeas court
unless they are clearly erroneous, but our review of
whether the facts as found by the habeas court consti-
tuted a violation of the petitioner’s constitutional right
to effective assistance of counsel is plenary.’’ (Internal
quotation marks omitted.) Humble v. Commissioner of
Correction, 180 Conn. App. 697, 703–704, 184 A.3d 804,
cert. denied, 330 Conn. 939, 195 A.3d 692 (2018).
We next set forth the legal principles relevant to a
claim of ineffective assistance of counsel in connection
with a guilty plea. ‘‘The [long-standing] test for
determining the validity of a guilty plea is whether the
plea represents a voluntary and intelligent choice
among the alternative courses of action open to the
defendant. . . . Where . . . a defendant is repre-
sented by counsel during the plea process and enters
his plea upon the advice of counsel, the voluntariness
of the plea depends on whether counsel’s advice was
within the range of competence demanded of attorneys
in criminal cases.’’ (Internal quotation marks omitted.)
Freitag v. Commissioner of Correction, 208 Conn. App.
635, 642, 265 A.3d 928 (2021).
‘‘[I]n order to determine whether the petitioner has
demonstrated ineffective assistance of counsel [when
the conviction resulted from a guilty plea], we apply the
two part test enunciated by the United States Supreme
Court in Strickland [v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] and Hill [v.
Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d
203 (1985)]. . . . In Strickland, which applies to claims
of ineffective assistance during criminal proceedings
generally, the United States Supreme Court determined
that the claim must be supported by evidence establish-
ing that (1) counsel’s representation fell below an objec-
tive standard of reasonableness, and (2) counsel’s defi-
cient performance prejudiced the defense because
there was a reasonable probability that the outcome of
the proceedings would have been different had it not
been for the deficient performance. . . .
‘‘To satisfy the performance prong under Strickland-
Hill, the petitioner must show that counsel’s represen-
tation fell below an objective standard of reasonable-
ness. . . . A petitioner who accepts counsel’s advice
to plead guilty has the burden of demonstrating on
habeas appeal that the advice was not within the range
of competence demanded of attorneys in criminal
cases. . . . The range of competence demanded is rea-
sonably competent, or within the range of competence
displayed by lawyers with ordinary training and skill
in the criminal law. . . . Reasonably competent attor-
neys may advise their clients to plead guilty even if
defenses may exist. . . . A reviewing court must view
counsel’s conduct with a strong presumption that it
falls within the wide range of reasonable professional
assistance. . . .
‘‘To satisfy the prejudice prong [under Strickland-
Hill], the petitioner must show a reasonable probability
that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.’’ (Inter-
nal quotation marks omitted.) Humble v. Commis-
sioner of Correction, supra, 180 Conn. App. 704–705.
‘‘Because both prongs . . . must be established for a
habeas petitioner to prevail, a court may dismiss a peti-
tioner’s claim if he fails to meet either prong.’’ (Internal
quotation marks omitted.) Anderson v. Commissioner
of Correction, 201 Conn. App. 1, 12, 242 A.3d 107, cert.
denied, 335 Conn. 983, 242 A.3d 105 (2020).
After our review of the record and based on the
underlying facts found by the habeas court, we agree
with the court’s conclusion that Solak provided the
petitioner with reasonably competent advice regarding
his guilty plea. The habeas court credited Solak’s testi-
mony and found that he had reviewed the discovery
provided to him and determined that no further investi-
gation was necessary. The petitioner did not provide
Solak with any potential witnesses to investigate in
support of a defense, and, at the habeas trial, the peti-
tioner did not provide any additional favorable evidence
that would have supported his defense at trial.6 We
agree with the habeas court’s conclusion that the peti-
tioner failed to show that further investigation by Solak
would have yielded any evidence that would have aided
in the petitioner’s defense at trial or that would have
altered Solak’s advice regarding the strengths and weak-
nesses of the state’s case against the petitioner. See
Clinton S. v. Commissioner of Correction, 174 Conn.
App. 821, 836, 167 A.3d 389 (‘‘[t]he burden to demon-
strate what benefit additional investigation would have
revealed is on the petitioner’’ (internal quotation marks
omitted)), cert. denied, 327 Conn. 927, 171 A.3d 59(2017).
Although the petitioner points to weaknesses in the
state’s case against him,7 Solak reasonably advised the
petitioner that he viewed the case against the petitioner
as strong and that the likelihood of success at trial was
slim despite such possible weaknesses. See Humble v.
Commissioner of Correction, supra, 180 Conn. App. 704(‘‘[r]easonably competent attorneys may advise their
clients to plead guilty even if defenses may exist’’ (inter-
nal quotation marks omitted)). As the habeas court
noted, although the codefendants could be cross-exam-
ined at trial and their credibility undermined, the jury
could have found at least some of their testimony to
be reliable and returned a guilty verdict. In addition to
the statements made by the codefendants inculpating
the petitioner, physical evidence of items taken during
the burglary were seized at the petitioner’s home. Solak
advised the petitioner that if he were convicted after
trial, he would likely receive a sentence of at least ten
years of imprisonment. Moreover, Solak did not tell the
petitioner what he should do with respect to the state’s
plea offer; instead, Solak advised him regarding the
possible outcomes and their likelihood, leaving the ulti-
mate choice up to the petitioner. The record reveals
that the petitioner failed to meet his burden to overcome
the presumption that Solak provided competent advice
with regard to his guilty plea.
B
Next, the petitioner contends that Solak rendered
deficient performance by failing to advise him ade-
quately regarding the immigration consequences of his
guilty plea. We disagree.
The following additional facts, as found by the habeas
court, are relevant to our resolution of this claim. ‘‘While
immigration consequences can be taken into account
in fashioning an appropriate sentence, both [Solak] and
[Supervisory Assistant State’s Attorney Charles Stango],
the trial prosecutor, were of the opinion that this was
not such a case, given the seriousness of the allegations
and the potential punishment faced by [the petitioner].
. . . According to [Solak], at no time did [the petitioner]
indicate that he wished to go to trial for immigration
reasons. Had he so insisted, [Solak] was prepared to
go to trial. . . . [D]uring the [petitioner’s] plea, [Solak]
stated for the record that [the petitioner] was not a
citizen and that they had discussed the possibility of
deportation. He testified that it was practice at the time
of [the petitioner’s] plea to advise clients with immigra-
tion issues to consult with an immigration attorney.’’
The court rejected the petitioner’s claim that Solak
rendered deficient performance in failing to advise him
of the immigration consequences of his guilty plea. It
concluded that there was no difference in the standard
for ineffective assistance of counsel pursuant to the
state and federal constitutions. Therefore, because the
federal constitution at that time did not require Solak
to advise the petitioner about immigration conse-
quences of a plea, the state constitution likewise did
not require such action.
As we set forth in part II A of this opinion, our stan-
dard of review of a habeas court’s judgment on claims of
ineffective assistance of counsel is well settled. ‘‘[T]his
court cannot disturb the underlying facts found by the
habeas court unless they are clearly erroneous, but our
review of whether the facts as found by the habeas court
constituted a violation of the petitioner’s constitutional
right to effective assistance of counsel is plenary.’’
(Internal quotation marks omitted.) Humble v. Com-
missioner of Correction, supra, 180 Conn. App. 703–
704.
We next set forth the legal principles applicable to
a claim that counsel rendered deficient performance
by failing to advise the petitioner of the immigration
consequences of a guilty plea. In Padilla v. Kentucky,
559 U.S. 356, 360, 366, 130 S. Ct. 1473, 176 L. Ed. 2d
284 (2010), the United States Supreme Court held that
the federal constitution’s guarantee of effective assis-
tance of counsel requires defense counsel to accurately
advise a noncitizen client of the immigration conse-
quences of a guilty plea.
Subsequently, the United States Supreme Court
addressed the question of whether its decision in Padi-
lla applied retroactively in Chaidez v. United States,
568 U.S. 342, 344, 133 S. Ct. 1103, 185 L. Ed. 2d 149(2013). The court concluded that the decision in Padilla
announced a ‘‘new rule’’ and, therefore, it did not apply
retroactively. Id., 344, 347, 349. In making that determi-
nation, the court stated: ‘‘Padilla would not have cre-
ated a new rule had it only applied Strickland’s general
standard to yet another factual situation—that is, had
Padilla merely made clear that a lawyer who neglects
to inform a client about the risk of deportation is profes-
sionally incompetent.
‘‘But Padilla did something more. Before deciding if
failing to provide such advice fell below an objective
standard of reasonableness, Padilla considered a
threshold question: Was advice about deportation cate-
gorically removed from the scope of the [s]ixth [a]mend-
ment right to counsel because it involved only a collat-
eral consequence of a conviction, rather than a
component of the criminal sentence? . . . In other
words, prior to asking how the Strickland test applied
(Did this attorney act unreasonably?), Padilla asked
whether the Strickland test applied (Should we even
evaluate if this attorney acted unreasonably?). And as
we will describe, that preliminary question about
Strickland’s ambit came to the Padilla [c]ourt unset-
tled—so that the [c]ourt’s answer (Yes, Strickland gov-
erns here) required a new rule.’’ (Citation omitted;
emphasis in original; footnote omitted; internal quota-
tion marks omitted.) Id., 348–49.
Our Supreme Court, in Thiersaint v. Commissioner
of Correction, 316 Conn. 89, 93, 117, 111 A.3d 829 (2015),
held that the decision in Padilla did not apply retroac-
tively under Connecticut law. Our Supreme Court rejected
the petitioner’s contention that the rule announced in
Padilla was required by prevailing professional norms
in Connecticut at the time of the petitioner’s trial and,
therefore, it was not a new rule. Id., 113–14. The court
concluded that, ‘‘even if professional norms at the time
the petitioner entered his guilty plea required that trial
counsel inform a noncitizen criminal defendant of a
plea’s virtually mandatory deportation consequences,
the rule announced in Padilla was a new rule under
Connecticut law because more than one Connecticut
court had noted several years before the petitioner’s
plea that such advice was not constitutionally required.’’
Id., 116–17.
We agree with the habeas court’s conclusion that the
rule announced in Padilla requiring defense counsel to
advise a noncitizen client of the immigration conse-
quences of a guilty plea does not apply to the petitioner’s
case because such advice was not constitutionally
required—under either the United States or the Con-
necticut constitution—at the time the petitioner entered
his guilty plea. See id., 93. Therefore, the petitioner’s
claim that Solak rendered deficient performance by
failing to advise him of the immigration consequences
of his guilty plea must fail.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The petitioner’s conviction for violating General Statutes (Rev. to 2007)
§ 21a-277 (a) was related to an incident that had occurred on December
17, 2007.
2
At the habeas trial, the petitioner testified that he was born in Jamaica.
3
The petitioner had renewed his arguments regarding Judge Newson’s
dismissal of his challenges to the conspiracy to commit robbery and sale
of narcotic substance convictions after the close of evidence and in his
posttrial brief.
4
Practice Book § 23-29 provides in relevant part: ‘‘The judicial authority
may, at any time, upon its own motion or upon motion of the respondent,
dismiss the petition, or any count thereof, if it determines that: (1) the court
lacks jurisdiction . . . .’’
5
We note that the law of the case doctrine does not restrict the court’s
ability to review a claim relating to the court’s subject matter jurisdiction.
See Lewis v. Gaming Policy Board, 224 Conn. 693, 697–99, 620 A.2d 780(1993). ‘‘The law of the case doctrine provides that [w]here a matter has
previously been ruled upon interlocutorily, the court in a subsequent pro-
ceeding in the case may treat that decision as the law of the case, if it is
of the opinion that the issue was correctly decided, in the absence of some
new or overriding circumstance. . . . A judge is not bound to follow the
decisions of another judge made at an earlier stage of the proceedings, and
if the same point is again raised he has the same right to reconsider the
question as if he had himself made the original decision. . . . [O]ne judge
may, in a proper case, vacate, modify, or depart from an interlocutory order
or ruling of another judge in the same case, upon a question of law.’’ (Internal
quotation marks omitted.) Stones Trail, LLC v. Weston, 174 Conn. App. 715,
738, 166 A.3d 832, cert. denied, 327 Conn. 926, 171 A.3d 60 (2017), and cert.
dismissed, 327 Conn. 926, 171 A.3d 59 (2017).
6
At the habeas trial, the petitioner presented Lindsay Brunswick as a
witness. Brunswick was one of the individuals present in Gunnison’s resi-
dence at the time of the burglary. She testified that she remembered three
people with three different weapons, but could not identify any suspect.
7
In his brief, the petitioner discusses weaknesses in the state’s case against
him relating to each of the three convictions and claims that Solak could
have used these weaknesses as part of his defense at trial. He points to the
fact that none of the victims identified the petitioner and that one of the
victims testified at the habeas trial that she believed there were three individ-
uals who committed the burglary, which would account for the three code-
fendants who had confessed to being present, but not the petitioner. The
petitioner also points to his own testimony to show that the physical evidence
of the burglary found at his residence, including cell phones and iPods,
‘‘were simply left behind by the others’’ and do not directly tie him to the
burglary or the conspiracy to commit robbery. With regard to the narcotics
conviction, he argues that ‘‘the state would have had to rely on the testimony
of an informant whose motivation and credibility would be an issue’’ and
that the state may not have even presented the confidential informant at trial.