Smith v. Commissioner of Correction ( 2022 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
KENDALL SMITH v. COMMISSIONER
OF CORRECTION
(AC 44654)
Elgo, Cradle and Suarez, Js.
Syllabus
The petitioner, who had been found guilty of several crimes, following a
jury trial, and who had entered a plea of nolo contendere to a charge
of being a persistent serious felony offender in connection with his role
in an armed bank robbery, sought a writ of habeas corpus. The petitioner
and another perpetrator, each openly carrying a gun, had entered the
bank and taken money from the tellers’ drawers and the safes. The
petitioner claimed that his trial counsel, B, had rendered ineffective
assistance and that his plea of nolo contendere had not been knowing,
intelligent and voluntary. The habeas court denied the habeas petition,
concluding, inter alia, that B’s performance was not deficient and, there-
after, granted the petition for certification to appeal. Held:
1. The petitioner could not prevail on his claim that B provided ineffective
assistance by failing to request an instruction requiring the jury to find
that the firearm he used during the robbery was operable pursuant to
the applicable sentence enhancement statute (§ 53-202k) with respect
to the charges of robbery in the first degree and by failing to advise the
petitioner of the public interest element of the persistent serious felony
offender charge: the petitioner’s conduct in brandishing a gun as a show
of force during the robbery indicated to the victims that the gun could
have been fired and, thus, satisfied the statutory (§ 53a-3 (19)) definition
of a firearm and subjected him to sentence enhancement pursuant to
§ 53-202k; moreover, even if the jury instruction had been requested,
the trial court would have properly denied the request, thus, the peti-
tioner could not prove prejudice; furthermore, the petitioner failed to
demonstrate that, but for B’s alleged deficient performance in failing to
advise him with respect to the public interest element of the charge of
being a persistent serious felony offender pursuant to statute ((Rev. to
2007) § 53a-40 (c)), he would not have entered a nolo contendere plea
with respect to that charge, as the plea canvass by the trial court reflected
that the petitioner affirmatively answered the court’s question as to
whether he and B had discussed the evidence the state had to support
the charge, it was reasonable for the habeas court to conclude that the
petitioner’s evidence at the habeas trial did not rebut the presumption
that B had explained the nature of the offense in sufficient detail to
give the petitioner notice of what he was being asked to admit, and the
habeas court found that the petitioner’s habeas testimony that he would
not have entered a plea of nolo contendere had B properly advised him
was not credible, as the petitioner had an extensive criminal history
and the state had a strong case favoring sentence enhancement.
2. The petitioner could not prevail on his claim that his plea of nolo conten-
dere to the charge of being a persistent serious felony offender was not
knowing, intelligent and voluntary, as he failed to rebut the presumption
that B had informed him of the elements of the charge.
Argued April 4—officially released September 13, 2022
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district
of Tolland and tried to the court, Bhatt, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
Deren Manasevit, assigned counsel, for the appellant
(petitioner).
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were Matthew C. Gedansky,
state’s attorney, and Michael J. Proto, senior assistant
state’s attorney, for the appellee (respondent).
Opinion
SUAREZ, J. The petitioner, Kendall Smith, appeals,
following the granting of his petition for certification
to appeal, from the judgment of the habeas court deny-
ing his sixth amended petition for a writ of habeas
corpus. The petitioner claims that the habeas court
improperly concluded that (1) he was not deprived of
his right to the effective assistance of counsel during
his underlying criminal trial and (2) he knowingly, intel-
ligently, and voluntarily entered a plea of nolo conten-
dere to a persistent serious felony offender charge. We
affirm the judgment of the habeas court.
The following facts, as found by the habeas court,
and procedural history are relevant to our resolution
of the petitioner’s claims. In 2010, following a jury trial,
the petitioner was found guilty of robbery in the first
degree in violation of General Statutes § 53a-134 (a) (4),
and conspiracy to commit robbery in the first degree
in violation of General Statutes §§ 53a-48 (a) and 53a-
134 (a) (4). The jury also found that the petitioner had
committed a class B felony with a firearm in violation
of General Statutes § 53-202k, a sentence enhancement
statute. The petitioner also entered a plea of nolo con-
tendere to a charge brought in a part B information of
being a persistent serious felony offender under General
Statutes (Rev. to 2007) § 53a-40 (c).1 All of the charges
were related to the petitioner’s alleged participation in
an armed bank robbery with another perpetrator that
occurred on January 23, 2008, in Stafford Springs. Attor-
ney Lawrence Bates represented the petitioner through-
out the trial. On May 5, 2010, following the court’s accep-
tance of the jury’s verdict and the nolo contendere plea,
the court, Fuger, J., sentenced the petitioner to a total
effective term of fifty-five years of incarceration. The
judgment of conviction was upheld following the peti-
tioner’s direct appeal to this court. State v. Smith, 156
Conn. App. 537, 113 A.3d 103, cert. denied, 317 Conn.
910, 115 A.3d 1106 (2015).2
On July 6, 2015, the petitioner, as a self-represented
litigant, filed a petition for a writ of habeas corpus.
Thereafter, the petitioner was appointed habeas coun-
sel. Through counsel, the petitioner filed six amended
petitions, with the final amended petition being filed
on May 8, 2019. In the sixth amended petition, the peti-
tioner alleged, inter alia, that he is illegally confined
because Attorney Bates’ performance did not meet ‘‘the
objective duty of competent representation for attor-
neys representing criminal defendants’’ and, but for his
deficient performance, the ‘‘result of petitioner’s crimi-
nal trial . . . would have been different and more
favorable to the petitioner.’’ Relevant to the present
appeal are the petitioner’s allegations that Attorney
Bates rendered ineffective representation with regard
to his enhanced sentence under § 53-202k, for having
committed a class B felony with a firearm, and his plea
of nolo contendere to the charge of being a persistent
serious felony offender.
Regarding the former allegation, the petitioner, rais-
ing a claim of ineffective assistance of counsel under
the state and federal constitutions, alleged that ‘‘counsel
failed to adequately research the legal issues presented
by this case, namely that he did not argue, brief or
request a proper jury charge concerning the require-
ment that the state must prove beyond a reasonable
doubt that the firearm used during the commission of
the robbery offense was operable . . . in order for the
court to enhance the petitioner’s sentence pursuant to
. . . § 53-202k . . . .’’ Regarding the latter allegation,
the petitioner, challenging his plea under the state and
federal constitutions, alleged that Attorney Bates’ repre-
sentation was deficient with respect to the advice he
rendered as to the persistent serious felony offender
charge and, thus, in connection with his nolo conten-
dere plea. The petitioner alleged that, as a result of the
deficient advice provided to him by Attorney Bates, he
did not knowingly, intelligently, and voluntarily enter
his nolo contendere plea, and that he ‘‘would not have
entered [the] plea to the charge of being a persistent
serious felony offender if he had known and understood
that, in order for his sentence to be enhanced as a
persistent serious felony offender, it was necessary for
the finder of fact to conclude that his extended incarcer-
ation would best serve the public interest.’’
Distinct from his claim of ineffective assistance of
counsel, the petitioner alleges that his confinement is
unlawful because he did not understand the ‘‘public
interest’’ element of the persistent serious felony
offender charge, that he did not knowingly, intelligently,
and voluntarily enter his plea of nolo contendere, and
that he would not have entered the plea ‘‘if he had
known and understood’’ the ‘‘public interest’’ element.3
The respondent, the Commissioner of Correction,
filed a return in which he either denied the substantive
allegations set forth in the petitioner’s sixth amended
petition or left the petitioner to his proof. With respect
to the petitioner’s claim that his nolo contendere plea
was not knowing, intelligent, and voluntary, the respon-
dent raised the defense of procedural default. In his
reply, the petitioner alleged that, to the extent that his
claim concerning his nolo contendere plea is procedur-
ally defaulted, cause and prejudice exists to overcome
the default.
The claims raised in the present appeal pertain only
to the habeas court’s rejection of the petitioner’s claims
that (1) he received ineffective assistance of counsel
because Attorney Bates did not request that the court
instruct the jury that, under § 53-202k, it must find that
the firearm used by him was operable, (2) he received
ineffective assistance of counsel because Attorney
Bates did not inform him that, under § 53a-40 (c), the
state would need to prove his extended incarceration
was in the public interest, and (3) he did not enter his
plea of nolo contendere knowingly, intelligently, and
voluntarily because he did not understand the ‘‘public
interest’’ element of § 53a-40 (c).
On May 14, 2019, the court, Bhatt, J., held a trial in
this matter. Relevant to the claims raised on appeal,
the petitioner presented testimony from himself and
Attorney Bates. The petitioner testified that, after he
was convicted of robbery and conspiracy to commit
robbery, Attorney Bates spoke to him about the persis-
tent serious felony offender charge. The petitioner testi-
fied that, during this conversation, Attorney Bates did
not inform him that, for him to be found guilty of being
a persistent serious felony offender, the state would
need to prove that extending the petitioner’s incarcera-
tion was in the public interest.4 The petitioner further
testified that he would not have entered the plea of
nolo contendere if he had known that the state bore
the burden of proving this element of the offense.
Habeas counsel for the petitioner examined Attorney
Bates about his conversation with the petitioner after
the petitioner was found guilty on the charges of rob-
bery and conspiracy to commit robbery. Attorney Bates
testified that, after the jury returned its verdict, he told
the petitioner that he had every right to proceed to trial
with respect to the persistent serious felony offender
charge, but the petitioner did not want to proceed to
trial with respect to that charge and elected to enter a
plea of nolo contendere.
The petitioner’s habeas counsel also examined Attor-
ney Bates regarding the sentence enhancement statute,
§ 53-202k. Attorney Bates testified that he had
researched the statute and believed that it required the
jury to find that the firearm that the petitioner allegedly
used during the alleged bank robbery was, in fact, opera-
ble. At trial, however, Attorney Bates did not request
that the court instruct the jury that it must determine
whether or not the firearm was operable.
On February 11, 2021, in a memorandum of decision,
the court denied the petitioner’s sixth amended petition
for a writ of habeas corpus. With respect to the ineffec-
tive assistance of counsel claim related to Attorney
Bates’ failure to request a ‘‘firearm operability’’ instruc-
tion concerning § 53-202k, the court, after discussing
the text of § 53-202k and several appellate cases related
thereto, reasoned that there was no legal basis for the
jury instruction that the petitioner alleged should have
been requested at trial. Thus, the court determined that
Attorney Bates was not deficient for failing to request
the instruction at issue. The court also reasoned that
the petitioner could not prove that he was prejudiced
by Attorney Bates’ failure to request the instruction
because, ‘‘even if Bates had requested an instruction
[that the jury must find that the firearm was operable],
given our case law . . . the trial court would have been
. . . well within its discretion to deny such a request’’
because operability was not an element of the offense.
With respect to the ineffective assistance of counsel
claim related to Attorney Bates’ advice concerning the
persistent serious felony offender charge, the court
found that, ‘‘[w]hen [the petitioner] entered his plea to
being a persistent serious felony offender, the trial court
conducted a thorough and appropriate canvass includ-
ing asking [the petitioner] if he had discussed his deci-
sion with his attorney and had sufficient time to do so
and whether his attorney had explained to him what
the state would have to prove. [The petitioner]
answered those questions in the affirmative and at no
point did he indicate that he did not understand the
charges or was being forced to plead or that Bates had
not explained the elements to him. It is well established
that the canvassing court can rely on a defendant’s
responses during a plea canvass. . . . The court found
the plea to be knowing, voluntary, and made with advice
of competent counsel. Thus, this court can infer that
Bates did discuss with [the petitioner] the elements of
the offense and the state’s evidence. There is no defi-
cient performance. Even assuming that Bates’ perfor-
mance was deficient, [the petitioner’s] habeas testi-
mony that he would not have entered a plea of nolo
contendere had Bates properly advised him is not credi-
ble.’’ (Citations omitted.)
The court also denied the petitioner’s related claim
that his plea of nolo contendere was invalid because
he did not understand that, under § 53a-40 (c), the state
bore the burden of proving that his extended incarcera-
tion would best serve the public interest. The court
reiterated that, in his ineffective assistance of counsel
claim concerning this issue, the petitioner was unable
to demonstrate that Attorney Bates rendered deficient
performance or that he had been prejudiced thereby.
The court reiterated that it did not find the petitioner’s
testimony credible insofar as he testified that he would
not have pleaded nolo contendere if he had been
advised of the public interest requirement and con-
cluded that the petitioner had not demonstrated that
his plea was not knowing, intelligent, and voluntary in
nature.5
On March 4, 2021, the court granted the petitioner’s
petition for certification to appeal. This appeal fol-
lowed. Additional facts and procedural history will be
set forth as necessary.
I
First, the petitioner claims that the court erred by
concluding that he was not deprived of his right to the
effective assistance of counsel during his criminal trial.
‘‘Our standard of review of a habeas court’s judgment
on ineffective assistance of counsel claims is well set-
tled. In a habeas appeal, this 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 viola-
tion of the petitioner’s constitutional right to effective
assistance of counsel is plenary. . . . The habeas
judge, as the trier of facts, is the sole arbiter of the
credibility of witnesses and the weight to be given to
their testimony. . . .
‘‘A claim of ineffective assistance of counsel is gov-
erned by the two-pronged test set forth in Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984). Under Strickland, the petitioner has the
burden of demonstrating that (1) counsel’s representa-
tion fell below an objective standard of reasonableness,
and (2) counsel’s deficient performance prejudiced the
defense because there was a reasonable probability
that the outcome of the proceedings would have been
different had it not been for the deficient perfor-
mance. . . .
‘‘In order to prevail on a claim of ineffective assis-
tance of counsel, the petitioner must establish both
prongs of the Strickland test. . . . [A] habeas court
may dismiss the petitioner’s claim if he fails to satisfy
either prong. . . . Accordingly, a court need not deter-
mine the deficiency of counsel’s performance if consid-
eration of the prejudice prong will be dispositive of
the ineffectiveness claim.’’ (Citations omitted; internal
quotation marks omitted.) Sewell v. Commissioner of
Correction, 168 Conn. App. 735, 741–42, 147 A.3d 196(2016), cert. denied, 324 Conn. 907, 152 A.3d 1245(2017).
In this first claim raised on appeal, the petitioner
asserts that the court erred in concluding that Attorney
Bates was not ineffective for failing (1) to request an
instruction requiring the jury to find the firearm he used
during the bank robbery was operable under § 53-202k
and (2) to advise the petitioner of the ‘‘public interest’’
element of the persistent serious felony offender
charge. We are not persuaded with respect to either
argument.
A
We first address the petitioner’s claim that Attorney
Bates rendered deficient performance by failing to
request that the jury be instructed about operability for
purposes of § 53-202k.6
Relevant to this claim, we note the following addi-
tional facts detailing the manner in which the bank
robbery occurred, as set forth in this court’s opinion
affirming the judgment of conviction: ‘‘On January 23,
2008, at approximately 11:45 a.m., two men entered the
front door of the Workers’ Federal Credit Union in
Stafford Springs wearing ski masks, gloves and dark
clothing. The first man to enter, while carrying a gun
in his left hand, jumped over the counter into the teller
area, where three tellers were then working. He ordered
the tellers to put up their hands and asked them where
the money was. After taking the money from the tellers’
cash drawers and putting it in a bag, the man jumped
back over the counter into the lobby area of the bank.
‘‘While the first man was taking money from the tell-
ers’ cash drawers, the second man, who also was car-
rying a gun, ran toward the back of the bank to the desk
of Stacey Fisher, another bank employee. On reaching
Fisher’s desk, the second man forced her at gunpoint
to lead him into the vault area behind her so he could
access the bank’s safes. As the first man jumped back
over the counter into the lobby area, the second man
emerged from the vault area carrying four or five cash
drawers from one of the bank’s two safes. Upon meeting
near the front door of the bank, the two men exited
and got into a small or medium sized, silver or light
colored car that had been parked in front of the build-
ing.’’ (Footnote omitted.) State v. Smith, supra, 156
Conn. App. 541–42.
In his appellate brief, the petitioner asserts that
‘‘Bates correctly understood that § 53-202k requires
proof [that] the firearm justifying application of the
enhancement was capable of firing a shot, and his fail-
ure to seek an instruction on operability was both defi-
cient and prejudicial. The habeas court’s analysis of
this issue was incorrect and therefore does not support
a conclusion that Bates’ representation was adequate.’’
(Emphasis added.) The petitioner also argues that the
statute is ambiguous because it states that the sentence
enhancement statute applies when a person who com-
mits a felony ‘‘represents by his words or conduct that
he possesses any firearm as defined in section 53a-3
. . . .’’ General Statutes § 53-202k. The petitioner
argues that the phrase ‘‘represents by his words or
conduct that he possesses any firearm’’ appears to con-
tradict the legislative requirement that the firearm fall
under the definition set forth in § 53a-3 and, thus, gives
rise to a statutory ambiguity that necessitates the use
of extratextual sources to resolve. From here, the peti-
tioner urges that the statute be interpreted on the basis
of the legislative history that, in his view, suggests that
operability is an essential element of the sentence
enhancement statute. We need not engage in a statutory
interpretation analysis to resolve the petitioner’s claim
because § 53-202k has been the subject of prior judicial
interpretation and that interpretation resolves the issue
before us.
The relevant portion of § 53-202k provides: ‘‘Any per-
son who commits any class A, B or C felony and in the
commission of such felony uses, or is armed with and
threatens the use of, or displays, or represents by his
words or conduct that he possesses any firearm, as
defined in section 53a-3 . . . shall be imprisoned for
a term of five years, which shall not be suspended or
reduced and shall be in addition and consecutive to
any term of imprisonment imposed for conviction of
such felony.’’ General Statutes § 53-202k. ‘‘There are
two elements to § 53-202k. The first element is that the
defendant has committed a class A, B or C felony. . . .
The second element of § 53-202k is that the defendant
used, was armed with and threatened the use of, dis-
played, or represented by his words that he possessed
a firearm as ‘firearm’ is defined in [General Statutes]
§ 53a-3 (19).’’ State v. Brown, 259 Conn. 799, 807–808,
792 A.2d 86 (2002). Section 53a-3 (19) defines a ‘‘ ‘[f]ire-
arm’ ’’ as ‘‘any sawed-off shotgun, machine gun, rifle,
shotgun, pistol, revolver or other weapon, whether
loaded or unloaded from which a shot may be dis-
charged.’’
Our Supreme Court’s reasoning in State v. Brown,
supra, 259 Conn. 799, is particularly relevant to our
analysis of the present claim. In Brown, the defendant
was convicted of robbery in the first degree in violation
of §§ 53a-8 and 53a-134 (a) (4), conspiracy to commit
robbery in the first degree in violation of §§ 53a-48 (a)
and 53a-134 (a) (4), and larceny in the second degree
in violation of General Statutes §§ 53a-8 and 53a-123
(a) (3). Id., 801. The jury also found that the defendant
was subject to an enhanced penalty under § 53-202k
because he had used a firearm in the commission of
the crime. Id., 805. The jury reasonably could have found
that the defendant stole the victim’s car after robbing
the victim at gunpoint. Id., 802–803. A second armed
individual, who drove the defendant to the victim’s loca-
tion, told the defendant to ‘‘ ‘[j]ust pop him.’ ’’ Id., 803.
Recognizing this as an instruction to shoot the victim,
the victim implored the defendant to let him go. Id. The
defendant told the victim to walk away and not look
back. Id. As the victim walked away, however, he looked
back at the defendant. Id. The defendant then threat-
ened the victim, saying, ‘‘ ‘Do you want to get shot
. . . .’ ’’ Id. The defendant did not shoot the victim, but
he left the scene in the victim’s automobile. Id.
In Brown, the defendant challenged the enhanced
penalty imposed on him under § 53-202k. Id., 800–801.
After this court affirmed the judgment of conviction,
our Supreme Court granted certification limited to the
question of ‘‘whether the trial court was required to
define the term ‘firearm’ when instructing the jury on
the sentence enhancement provision of § 53-202k.’’ Id.,
805. The defendant argued that the court’s failure to
instruct the jury on the definition of a firearm under
§ 53a-3 (19) rendered the jury instruction constitution-
ally defective. Id., 808. In particular, the defendant
focused on the trial court’s failure to instruct the jury,
in accordance with § 53a-3 (19), that the state was
required to prove that the gun that the defendant used
in the robbery was capable of discharging a shot. Id.,
809. The state argued that the instruction concerning
operability was not necessary and the defendant was
subject to the enhancement of his sentence because
the evidence demonstrated that he had represented by
his words and conduct that the weapon he used during
the robbery was capable of discharging a shot. Id.
In rejecting the defendant’s claim, the court in Brown
explained, ‘‘We conclude that the state was not required
to prove that the gun held by the defendant was capable
of discharging a shot. First, the statements by the defen-
dant and the second perpetrator relative to shooting
the victim were representations that the gun in the
defendant’s hand could be fired, and therefore represen-
tations that the gun was a firearm as defined by statute.
Because of those representations, the jury properly
could have applied § 53-202k without the state having
proved that the gun could be fired. Second, the sentence
enhancement provision properly may be applied to the
defendant because we do not distinguish between the
principal and an accessory when applying the sentence
enhancement provision for the use of a firearm in the
commission of a crime. . . . In the present case, the
second perpetrator fired several shots at the police
during the foot chase, which establishes that he used
a weapon from which a shot could be discharged. The
second perpetrator’s gun, therefore, satisfied the statu-
tory definition of a firearm and both the second perpe-
trator and the defendant are subject to sentence
enhancement under § 53-202k because the second per-
petrator ‘use[d], or [was] armed with and threaten[ed]
the use of, or display[ed]’ a firearm. Accordingly, we
conclude that the defendant’s claim fails . . . .’’ (Cita-
tion omitted; footnote omitted.) Id., 810–11. The court
also stated, ‘‘Not only did the defendant in the present
case specifically represent that he had a gun, but his
statement and that of the second perpetrator also repre-
sented that the gun held by the defendant could be
fired. Such explicit representations that a gun is capable
of firing a shot, however, may not always be necessary
in order to apply the sentence enhancement provision
of § 53-202k. It may be that brandishing a gun as a show
of force during a crime indicates to the victim that the
gun may be fired and therefore satisfies the statutory
definition of a firearm and subjects a defendant to sen-
tence enhancement. That is not the question before us
in this case, however, and we leave it for a later time.’’
Id., 810 n.11.
We conclude that the facts of this case are similar
to those in Brown and, therefore, that the analysis in
Brown controls our disposition of the petitioner’s claim.
Like the defendant in Brown, the petitioner represented
that his firearm was capable of firing a shot. The peti-
tioner and his coconspirator pointed their guns at the
bank tellers and ordered them to locate the money in
the credit union and lead one of the perpetrators to the
vault. State v. Smith, supra, 156 Conn. App. 541. The
petitioner’s use of a gun to force the bank tellers to
assist him during the robbery represented to the tellers
that the gun could be fired. Although the petitioner did
not make the type of explicit representations concern-
ing the operability of his gun that were present in
Brown, we are satisfied that his conduct in brandishing
his gun as a show of force during the bank robbery
indicated to the victims that the gun could have been
fired. Thus, we are satisfied that the petitioner’s conduct
satisfies the statutory definition of a firearm and sub-
jected him to sentence enhancement pursuant to
§ 53-202k.
Noting the habeas court’s reliance on Brown,7 the
petitioner argues that State v. Grant, 294 Conn. 151,
982 A.2d 169 (2009), and State v. Velasco, 253 Conn.
210, 751 A.2d 800 (2000), contravene Brown and suggest
that the jury should have been instructed on operability
in the present case. For the reasons that follow, we
disagree with the petitioner’s interpretation of these
cases.
In Grant, our Supreme Court considered whether a
BB gun was a ‘‘firearm’’ as defined in § 53a-3 (19) for the
purpose of deciding whether a defendant was properly
charged under § 53-202k with using a firearm in the
commission of a felony. State v. Grant, supra, 294 Conn.
156–57. Contrary to the petitioner’s assertion, this analy-
sis did not require that operability be proven for § 53-
202k to apply. The question of whether the BB gun was
a ‘‘firearm’’ was salient to determining if the defendant
used a firearm in committing a felony. Id., 157. The
analysis did not concern whether the operability of a
firearm was relevant in the context of a person commit-
ting a felony while representing he possesses an opera-
ble firearm, as was the case in Brown. See id., 156. In
our view, Grant has no effect on the court’s holding in
Brown that operability need not be proven when a
defendant represents that he possesses an operable
firearm. The petitioner’s reliance on Grant is, therefore,
misplaced.
In State v. Velasco, supra, 253 Conn. 212, our Supreme
Court addressed whether § 53-202k permits the court,
rather than the jury, to find that a defendant used a
firearm in the commission of a felony. The defendant
in Velasco was found guilty of two counts of felony
murder in violation of General Statutes § 53a-54c, and
conspiracy to commit robbery in the first degree in
violation of §§ 53a-48 (a) and 53a-134 (a) (3). Id., 217.
When sentenced, the trial court applied § 53-202k after
determining that, on the basis of the evidence at trial,
the state proved beyond a reasonable doubt the defen-
dant had committed the underlying felony with a fire-
arm. Id. On appeal, our Supreme Court vacated the
sentence enhancement imposed under § 53-202k after
concluding that the question of whether the accused
used a proscribed firearm in the commission of a felony
must be decided by the jury, not the court. Id., 214. In
the present case, the jury was asked by interrogatory
whether the petitioner had used a firearm in the com-
mission of a felony. The court did not make that finding
in place of the jury and, contrary to the petitioner’s
arguments, § 53-202k was not ‘‘automatically’’ applied
in this case simply because the petitioner committed a
violation of a felony, § 53a-134 (a) (4). Accordingly,
we fail to see how Velasco supports the petitioner’s
assertion that an instruction on operability was war-
ranted in the present case. For the foregoing reasons,
we are persuaded that the court correctly relied on
Brown in concluding that the petitioner failed to prove
that trial counsel’s failure to request an instruction on
operability constituted deficient performance.
For the foregoing reasons, we also agree with the
habeas court that, even if Attorney Bates was deficient
in failing to seek an instruction on operability, the peti-
tioner cannot prove prejudice. Under Brown, even if
the jury instruction had been requested, the trial court
would have properly denied the request. Accordingly,
the court did not err in rejecting the petitioner’s claim
that counsel was ineffective for failing to request jury
instructions on operability.
B
Next, we address the petitioner’s claim that the court
improperly concluded that Attorney Bates did not ren-
der effective representation because he failed to inform
him of the ‘‘public interest’’ element of the persistent
serious felony offender charge. We conclude that the
court properly determined that the petitioner failed to
demonstrate that Attorney Bates did not advise him of
the essential elements of the offense.
We note the general proposition that, ‘‘even without
an express statement by the court of the elements of
the crimes charged, it is appropriate to presume that
in most cases defense counsel routinely explain the
nature of the offense in sufficient detail to give the
accused notice of what he is being asked to admit. . . .
[U]nless a record contains some positive suggestion
that the defendant’s attorney had not informed the
defendant of the elements of the crimes to which he
was pleading guilty, the normal presumption applies.’’
(Citations omitted; internal quotation marks omitted.)
State v. Reid, 277 Conn. 764, 783–84, 894 A.2d 963 (2006).
On careful examination of the record, we find support
for the court’s determination that Attorney Bates had
informed the petitioner of the elements of the persistent
serious felony offender charge. Initially, we observe
that the habeas court reviewed the transcript of the
canvass that the trial court conducted concerning the
petitioner’s nolo contendere plea. The plea canvass
reflects that the petitioner affirmatively answered the
court’s question as to whether he and his counsel dis-
cussed the evidence the state had to show to support
the charge. The following examination occurred during
the canvass:
‘‘The Court: Have you had enough time to talk with
your attorney about your case and decision to enter a
plea of nolo contendere to this part B information?
‘‘[The Petitioner]: Yes.
‘‘The Court: Have you also specifically discussed with
your attorney the evidence that the state claims it has
to show that you were involved in this matter, that
there’s evidence to support the [charge set forth in] the
part B [information]?
‘‘[The Petitioner]: Yes.’’
Later in the canvass, the petitioner responded affirm-
atively when the court asked him if he was ‘‘fully satis-
fied’’ with the representation provided to him by Attor-
ney Bates.
On the basis of the petitioner’s answers to the court’s
inquiry, the court reasonably could have presumed that
trial counsel explained the nature of the offense in
sufficient detail to give the petitioner notice of what he
was being asked to admit. We note that the defendant
pleaded nolo contendere pursuant to an information
that explicitly listed § 53a-40 (c) as the governing stat-
ute, and he entered his plea in direct response to being
asked for his plea on the charge of being ‘‘a persistent
serious felony offender.’’ Although the court did not
refer to the state’s burden of proving that sentence
enhancement was in the public interest, there is no
finding or allegation that the court’s canvass of the
petitioner was inadequate. It is well settled that ‘‘[a] trial
court . . . may properly rely on . . . the responses of
the [defendant] at the time he responded to the trial
court’s plea canvass, in determining that he was ade-
quately informed of the elements of the offense
charged.’’ (Internal quotation marks omitted.) State v.
Lage, 141 Conn. App. 510, 520, 61 A.3d 581 (2013).
The petitioner contends that Attorney Bates’ testi-
mony at the habeas trial reflects that the petitioner was
not informed of the essential elements of the offense.
Specifically, the petitioner relies on the examination
and cross-examination of Attorney Bates regarding one
conversation he had with the petitioner after the jury
returned its verdict finding the petitioner guilty of rob-
bery and conspiracy to commit robbery. The following
colloquy between the petitioner’s counsel and Attorney
Bates occurred:
‘‘[Attorney Bates]: [A]t the end of the first part of the
trial where there was a guilty finding and there was an
opportunity to fight the . . . [persistent serious felony
offender charge], I told . . . [the petitioner] he had
every right to have it and that we could argue. He said
I don’t want to argue it, I’m all done.
‘‘[The Petitioner’s Counsel]: What did you tell him
that you could argue?
‘‘[Attorney Bates]: I didn’t. We didn’t get any further
than what I just said to you.
‘‘[The Petitioner’s Counsel]: Did you tell him whether
or not he had a defense?
‘‘[Attorney Bates]: I told you what I said to him, that
we could argue the point. And he said I’m through.
‘‘[The Petitioner’s Counsel]: And that was the entire
extent of the conversation?
‘‘[Attorney Bates]: Yes.’’
The petitioner also relies on the following exchange
that occurred during the respondent’s cross-examina-
tion of Attorney Bates:
‘‘[The Respondent’s Counsel]: You thought [in regard
to the persistent serious felony offender charge] it
would’ve been easily proven that his extended incarcer-
ation was in the public interest. Would you agree?
‘‘[Attorney Bates]: Yes.
‘‘[The Respondent’s Counsel]: And [the petitioner]
understood that as well.
‘‘[Attorney Bates]: I don’t know the—I’m not sure
about that.’’
The petitioner urges us to interpret this testimony to
suggest that at no point during his representation of
the petitioner, did Attorney Bates advise him of the
elements of the offense. However, Bates’ testimony,
quoted previously, described a conversation with the
petitioner at a specific point in time. It was limited to
what Bates told the petitioner after the jury found him
guilty of the underlying offense. Bates’ testimony did
not suggest that he had not explained the elements of
the offense prior to the finding of guilt. Attorney Bates’
testimony does not suggest that the petitioner was never
informed of the elements of the charge. It was not
unreasonable for the court to conclude that the petition-
er’s evidence at the habeas trial did not rebut the pre-
sumption that Attorney Bates had explained the nature
of the offense in sufficient detail to give the petitioner
notice of what he was being asked to admit.8 Accord-
ingly, the habeas court did not err in denying the peti-
tioner’s claim after finding that counsel had informed
the petitioner of the elements of the persistent serious
felony offender charge.
Under Strickland, our conclusion that the petitioner
has not proven deficient performance is a sufficient
basis on which to reject the present claim of ineffective
representation. See Sewell v. Commissioner of Correc-
tion, supra, 168 Conn. App. 742. However, we conclude
that the petitioner’s claim also fails because he has
failed to demonstrate that, even if he was not advised
with respect to and was unaware of the public interest
element, he would not have entered the nolo contendere
plea. The court, in analyzing the prejudice prong of
Strickland, made the critical finding that, ‘‘[e]ven
assuming that [Attorney] Bates’ performance was defi-
cient, [the petitioner’s] habeas testimony, that he would
not have entered a plea of nolo contendere had [Attor-
ney Bates] properly advised him, is not credible.’’
(Emphasis added.) As we have stated previously in this
opinion, it is not the role of this court to second-guess
the credibility determinations made by the trial court.
See Sewell v. Commissioner of Correction, supra, 741;
see also David P. v. Commissioner of Correction, 167
Conn. App. 455, 470, 143 A.3d 1158 (reviewing court
must defer to credibility assessment of trial court based
on its firsthand observation of conduct, demeanor, and
attitude of witness), cert. denied, 323 Conn. 921, 150
A.3d 1150 (2016). Also, the court, observing that the
present claim did not involve the rejection of a plea
offer but a decision to enter a nolo contendere plea,
also noted that the state had a strong case favoring
sentence enhancement and that the petitioner ‘‘[had]
presented no evidence that the state would have been
unable to show that he needed to be incarcerated for
an extended period of time.’’9 Like the habeas court,
we conclude that the petitioner’s extensive criminal
history undermines his argument that, being properly
advised with respect to the persistent serious felony
offender charge, he would have elected to exercise his
right to a trial. For the foregoing reasons, in our plenary
review of the issue of prejudice, we conclude, as did the
habeas court, that the petitioner has not demonstrated
that, but for the alleged deficiency of Attorney Bates, he
would not have pleaded nolo contendere with respect
to the part B information.
II
Next, the petitioner claims that his plea of nolo con-
tendere was not knowing, intelligent, and voluntary. We
are not persuaded by this claim.
We begin by setting forth the relevant legal principles
that guide our analysis of the petitioner’s claim. ‘‘The
underlying historical facts found by the habeas court
may not be disturbed unless the findings were clearly
erroneous. . . . Historical facts constitute a recital of
external events and the credibility of their narrators.
. . . Questions of law and mixed questions of law and
fact receive plenary review.’’ (Internal quotation marks
omitted.) Crawford v. Commissioner of Correction,
294 Conn. 165, 174, 982 A.2d 620 (2009). ‘‘The applica-
tion of the habeas court’s factual findings to the perti-
nent legal standard . . . presents a mixed question of
law and fact . . . .’’ Duperry v. Solnit, 261 Conn. 309,
335, 803 A.2d 287 (2002).
‘‘The constitutional stricture that a plea of guilty must
be made knowingly and voluntarily . . . requires not
only that there be a voluntary waiver during a plea
canvass of the right to a jury trial, the right of confronta-
tion and the right against self-incrimination, but also
that the defendant must be aware of and have an under-
standing of all of the elements of the crime or crimes
with which he is charged . . . . [T]he plea could not be
voluntary in the sense that it constituted an intelligent
admission that he committed the offense unless the
defendant received real notice of the true nature of
the charge against him, the first and most universally
recognized requirement of due process.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Hackett, 16 Conn. App. 601, 602, 548 A.2d 16 (1988).
In support of the present claim, the petitioner relies
on the factual premise that underlies the claim that we
addressed in part I B of this opinion, specifically, that
Attorney Bates failed to inform him of the elements
of the persistent serious felony offender charge. The
petitioner further argues that, because he did not know
the elements of the charge, his plea of nolo contendere
was not knowing, intelligent, and voluntary.
As the habeas court found, and we have addressed
in part I B of this opinion, the petitioner did not rebut
the presumption that counsel informed him of the ele-
ments of the charge. Therefore, we agree with the
habeas court that this claim fails on its merits.
The judgment is affirmed.
In this opinion the other judges concurred.
1
All references in this opinion to § 53a-40 (c) are to the 2007 revision of
the statute.
2
The facts of the underlying conviction are set forth in this court’s opinion
affirming the judgment of conviction. Although it is not necessary to repeat
those facts in their entirety here, we will set forth relevant facts as necessary
in the context of the claims raised in this appeal.
3
In his habeas petition, the petitioner, relying on the state and federal
constitutions, also alleged violations of the right to due process and a fair
trial as a result of the state’s presentation of false testimony and the court’s
admission of false testimony, a violation of the right to the effective assis-
tance of appellate counsel, and a violation of the right to nonconflicted trial
counsel. The habeas court denied each of these claims. The petitioner does
not raise claims of error related to these aspects of the habeas court’s deci-
sion.
4
The petitioner testified that Attorney Bates advised him that he should
plea nolo contendere to the charge because ‘‘all [the state] had to show
[was] that [he] had been convicted three times’’ and that there was nothing
the petitioner could do to refute the charge.
5
The court did not address the respondent’s claim of procedural default
with respect to this count of the sixth amended petition, noting that, regard-
less of whether this claim was procedurally defaulted, the petitioner’s claim
failed on its merits.
6
General Statutes § 53-202k provides: ‘‘Any person who commits any class
A, B or C felony and in the commission of such felony uses, or is armed
with and threatens the use of, or displays, or represents by his words or
conduct that he possesses any firearm, as defined in section 53a-3, except
an assault weapon, as defined in section 53-202a, shall be imprisoned for a
term of five years, which shall not be suspended or reduced and shall
be in addition and consecutive to any term of imprisonment imposed for
conviction of such felony.’’
7
We note that the habeas court also relied on State v. Tinsley, 47 Conn.
App. 716, 720, 706 A.2d 1008, cert. denied, 244 Conn. 915, 713 A.2d 833(1998), in which this court similarly rejected a claim that a defendant should
not be subject to the enhanced penalty under § 53-202k because the evidence
did not establish that he used or was armed with a firearm during the
commission of the crime. In rejecting the claim, this court stated: ‘‘The
defendant . . . claims that § 53-202k applies only after it is established that
in the commission of the underlying felony for which the defendant was
convicted, the weapon used was proven capable of discharging a shot. It
has already been established that a guilty verdict under § 53a-134 (a) (4)
does not require proof of operability [of the gun]. A conviction can result
whether or not the defendant possessed a gun. All that is required is that
the defendant displays or threatens the use of what he represents by his
words or conduct to be a [gun]. . . . To conclude otherwise would render
this statutory provision inapplicable in situations where weapons cannot
be recovered or where a defendant represents to have a gun but, in fact,
does not. Certainly, the legislature did not intend to omit those frequently
occurring scenarios from sentence enhancement.’’ (Citation omitted; inter-
nal quotation marks omitted.) Id., 721–22.
8
In a similar case, State v. Reynolds, 126 Conn. App. 291, 11 A.3d 198(2011), this court considered whether a defendant had validly waived his
right to a jury determination of his guilt under a part B information. The
defendant in Reynolds, like the petitioner in the present case, attempted to
demonstrate that he did not understand that the state bore the burden of
demonstrating that an extended period of incarceration was in the public
interest. Id., 297. In rejecting the claim, this court observed that a trial
court may presume that the defendant’s standby counsel had reviewed the
elements necessary to enhance the defendant’s sentence with the defendant,
and that the defendant had not rebutted that presumption ‘‘by offering
evidence that standby counsel could not later remember the content of her
advice.’’ Id., 305.
9
Specifically, the court stated: ‘‘The state needed to prove that [the peti-
tioner] stands convicted of a felony, was previously convicted of and impris-
oned for a felony, and that extended incarceration would best serve the
public interest. . . . All three of these elements are easily satisfied. [The
petitioner’s] criminal record encompassed no fewer than twenty-three con-
victions involving firearms. These convictions included five robberies,
including one in Massachusetts committed after the Stafford Springs credit
union robbery. Seventeen of the twenty-three convictions were for felonies.
. . . The sentencing court noted that [the petitioner] was a career, violent
criminal offender with numerous convictions for serious crimes of violence
in his past. That court further noted that [the petitioner’s] repeated acts of
criminality demonstrated his total inability and total lack of desire to be a
law-abiding member of society, thereby forfeiting his right to freedom. The
sentencing court then emphasized that, in its view, [the petitioner] should
never be at freedom again in our society and should never be considered
for parole or early release.’’ (Citation omitted; footnote omitted.)