Stephenson v. Commissioner of Correction ( 2023 )

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JOSEPH STEPHENSON v. COMMISSIONER
OF CORRECTION
(AC 45482)
Elgo, Suarez and Bear, Js.
Syllabus
The petitioner, who had been convicted, on pleas of guilty, of two counts
of larceny in the sixth degree, sought a writ of habeas corpus, claiming
that his trial counsel, L, had provided ineffective assistance by failing
to properly advise him about the immigration consequences of his pleas.
The petitioner, who was a citizen of Jamaica and a lawful permanent
resident of the United States, was sentenced to two concurrent 364 day
terms of incarceration, which L negotiated in an effort to alleviate
adverse immigration consequences to the petitioner. A federal immigra-
tion judge, however, charged the petitioner as removable and ordered
that he be removed from the United States. The habeas court subse-
quently rendered judgment granting the habeas petition, concluding that
L had provided ineffective assistance by failing to properly advise the
petitioner about the mandatory deportation consequence of his guilty
pleas to two crimes of moral turpitude, irrespective of the sentence
imposed. The court further determined that, but for that deficient advice,
the petitioner would not have pleaded guilty and that he would have
proceeded to trial. On the granting of certification to appeal, the respon-
dent, the Commissioner of Correction, appealed to this court, claiming,
inter alia, that the court failed to make findings, pursuant to Budziszew-
ski v. Commissioner of Correction (322 Conn. 504), as to what advice
L actually provided, and then determine whether the petitioner met his
burden to prove that counsel’s advice failed to convey the information
required under Padilla v. Kentucky (559 U.S. 356). Held:
1. The respondent could not prevail on his claim that the habeas court
incorrectly determined that L had performed deficiently because the
court did not determine what advice L actually provided, as required
by Budziszewski: although the respondent emphasized the court’s state-
ment that the details of one conversation between the petitioner and L
were unclear, the respondent ignored the court’s numerous other find-
ings, including that L inaccurately advised the petitioner that sentences
of less than one year would protect the petitioner from immigration
consequences; moreover, R, an attorney specializing in immigration law,
testified that the petitioner’s convictions in two cases for crimes of
moral turpitude that did not arise out of the same scheme of conduct
rendered the petitioner deportable, and the court found that the auto-
matic deportation consequences resulting from the petitioner’s guilty
pleas were readily apparent and that the applicable federal immigration
law (8 U.S.C. § 1227 (a) (2) (A) (ii) (2012)) was succinct and straightfor-
ward, which was supported by R’s testimony; furthermore, this court
was not persuaded that the habeas court’s decision failed to comply with
Budziszewski, as the court discussed in its memorandum of decision
its findings of fact as to the discussions between the petitioner and L
and what transpired before the petitioner entered his guilty pleas, and
its determination that L performed deficiently was based on its finding
that L inaccurately advised the petitioner regarding the immigration
consequences of his guilty pleas due to L’s misunderstanding that the
length of the petitioner’s sentences would have impacted whether depor-
tation proceedings would be instituted against him.
2. The respondent could not prevail on his claim that, as a consequence of
the habeas court’s failure to make the requisite findings under Budzis-
zewski, it failed to hold the petitioner to his burden to rebut the presump-
tion that L’s advice fell within the wide range of reasonable professional
assistance: the court specifically found that L had discussed with the
petitioner the difference between one and two convictions for crimes
involving moral turpitude, and, although it did not set forth the specific
advice given, as it was unclear from the record, that court also deter-
mined that L had incorrectly advised the petitioner regarding the immi-
gration consequences of his guilty pleas, thus necessarily determining
that either the presumption of reasonable professional assistance had
been rebutted or that it did not apply, and, even though it was unclear
what L told the petitioner during that one conversation, the record
reflected that L did not know and, therefore, failed to advise the peti-
tioner that, by pleading guilty to two crimes of moral turpitude that did
not arise out of a single scheme of criminal conduct, he was automati-
cally subject to deportation; moreover, nothing in the record suggested
that the court construed the lack of clarity in that one conversation
against the respondent, rather, the court’s determination that L per-
formed deficiently was based on its finding, which was amply supported
by the record, that L inaccurately advised the petitioner that a sentence
of less than one year for each of his convictions could help protect the
petitioner from deportation; furthermore, the fact that L had consulted
with an expert on immigration law did not excuse L’s failure to advise
the petitioner accurately regarding the consequences of his guilty pleas,
as required under Padilla, as this court was not aware of any exception
to the requirement set forth in Padilla for such situations, and the
petitioner was entitled under the sixth amendment to the United States
constitution to be informed accurately of the immigration consequences
of his guilty pleas.
3. Contrary to the respondent’s claim, the habeas court did not apply a
higher standard than what the law required when it based its finding
of deficient performance on L’s failure to advise the petitioner that his
pleas would automatically subject him to mandatory deportation: the
immigration consequences under federal law clearly mandated deporta-
tion, and, this court, having reviewed the habeas court’s memorandum
of decision as a whole, was not persuaded that the habeas court deviated
from the standard set forth in Padilla and Budziszewski by requiring
the use of specific words or phrases, rather, the habeas court focused
more broadly on whether L correctly conveyed to the petitioner the
mandatory deportation consequences of the guilty pleas under federal
law when he undercut the certainty of that result with clearly erroneous
advice suggesting that deportation might be avoidable, and, to the extent
that L gave advice casting doubt on the likelihood that federal authorities
would actually apprehend and deport the petitioner despite the clarity
of the law, it was incumbent on L to convey to the petitioner that, once
apprehended, deportation would be practically inevitable under federal
law, which he failed to do.
(One judge concurring separately)
Argued April 5—officially released November 14, 2023
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, and tried to the court, Oliver, J.; judgment
granting the petition, from which the respondent, on
the granting of certification, appealed to this court.
Affirmed.
Timothy F. Costello, supervisory assistant state’s
attorney, with whom, on the brief, were Paul J. Fer-
encek, state’s attorney, and Michael Proto and Juliana
Waltersdorff, senior assistant state’s attorneys, for the
appellant (respondent).
Vishal K. Garg, assigned counsel, for the appellee
(petitioner).
Opinion
BEAR, J. After the granting of certification to appeal,
the respondent, the Commissioner of Correction,
appeals from the judgment of the habeas court granting
the petition for a writ of habeas corpus filed by the
petitioner, Joseph Stephenson. The habeas court found
that the petitioner’s criminal trial counsel, James
Lamontagne, had provided ineffective assistance by fail-
ing to properly advise the petitioner about the manda-
tory deportation consequence of his guilty pleas to two
charges of larceny in the sixth degree. On appeal, the
respondent claims that the habeas court’s determina-
tion that Lamontagne had performed deficiently was
improper because the court (1) did not determine what
advice Lamontagne actually provided, as required by
Budziszewski v. Commissioner of Correction, 322
Conn. 504, 142 A.3d 243 (2016), (2) failed to hold the
petitioner to his burden to rebut the presumption that
Lamontagne’s advice fell within the wide range of rea-
sonable professional assistance, and (3) applied a higher
standard than what the law requires when it based its
finding of deficient performance on Lamontagne’s failure
to advise the petitioner that his pleas would ‘‘ ‘automati-
cally subject him to mandatory deportation.’ ’’ (Empha-
sis omitted.) We affirm the judgment of the habeas
court.
The following undisputed facts and procedural his-
tory were set forth by this court in a previous appeal
in this matter. See Stephenson v. Commissioner of Cor-
rection, 197 Conn. App. 172, 174–77, 231 A.3d 210 (2020).
‘‘The petitioner is a citizen of Jamaica, which is his
country of origin. On or about December 20, 1985, the
petitioner was admitted to the United States under non-
immigrant B-2 status. On February 14, 2000, the petition-
er’s immigration status was changed to that of a lawful
permanent resident.
‘‘On March 5, 2013, the petitioner pleaded guilty to
a charge of larceny in the sixth degree in violation
of General Statutes § 53a-125b in each of two dockets
(larceny convictions).1 On April 9, 2013, the petitioner
was sentenced to two concurrent 364 day terms of
imprisonment on the larceny convictions.2 The concur-
rent 364 day sentences were negotiated by . . .
Lamontagne . . . and the prosecutor in an effort by
. . . Lamontagne to alleviate any adverse conse-
quences that the petitioner might encounter under fed-
eral immigration law as a result of the larceny convic-
tions.
‘‘On July 9, 2013, the United States Department of
Homeland Security (department) charged the petitioner
‘as removable pursuant to [the Immigration and Nation-
ality Act, 8 U.S.C. § 1227 (a) (2) (A) (ii) (2012)] based
on [the] larceny convictions.’ Subsequently, on January
21, 2014, the department further charged the petitioner
‘as removable pursuant to [8 U.S.C. § 1227 (a) (2) (A)
(iii) (2012)], as an aggravated felon’ for a prior convic-
tion of robbery in the third degree (robbery convic-
tion).3 In a decision dated July 22, 2014, the immigration
judge concluded that the larceny convictions consti-
tuted crimes of moral turpitude under 8 U.S.C. § 1227(a) (2) (A) (ii), and that the robbery conviction was an
aggravated felony under 8 U.S.C. § 1227 (a) (2) (A)
(iii). On the basis of these conclusions, the immigration
judge ordered that the petitioner be removed from the
United States to Jamaica. On December 15, 2014, the
Board of Immigration Appeals (board) ‘affirm[ed] that
the [petitioner] ha[d] been convicted of an aggravated
felony for the reasons given in the [i]mmigration
[j]udge’s decision’ and, accordingly, dismissed his
appeal. Because the board affirmed the immigration
judge’s determination that the robbery conviction was
an aggravated felony, it concluded that it ‘need not
address whether the [petitioner] [w]as also . . . con-
victed of crimes involving moral turpitude.’
‘‘On September 25, 2013, while in custody serving
his concurrent 364 day sentences and shortly after the
department charged him as removable, the petitioner
filed a self-represented petition for a writ of habeas
corpus seeking to vacate the larceny convictions.4 On
January 2, 2018, the petitioner, now represented by
counsel, filed an amended petition for a writ of habeas
corpus (operative petition). In the operative petition,
the petitioner alleged that . . . Lamontagne rendered
ineffective assistance of counsel. Specifically, the peti-
tioner alleged that . . . Lamontagne’s failure to accu-
rately advise him that pleading guilty to the larceny charges
against him would make him ‘deportable, removable,
and inadmissible for reentry under federal immigration
law,’ constituted deficient performance. The petitioner
further alleged that, but for Lamontagne’s deficient per-
formance, ‘[t]here [was] a reasonable probability that
. . . [he] would not have entered a guilty plea.’
‘‘On May 22, 2018, a trial on the operative petition
was held before the court, Sferrazza, J. On May 29,
2018, Judge Sferrazza issued a memorandum of decision
in which he held that the operative petition was moot.’’5
(Footnotes added; footnotes in original; footnotes omit-
ted.) Stephenson v. Commissioner of Correction, supra,197 Conn. App. 174–77. After Judge Sferrazza granted
the petition for certification to appeal; id., 177; the peti-
tioner appealed to this court, which concluded that the
operative habeas petition was not moot, reversed the
habeas court’s judgment, and remanded the case for a
new habeas trial. Id., 195, 203.
Following remand, a trial date was set for August 4,
2021, but, prior thereto, the parties jointly filed notice
that they were resting on the record evidence and repre-
sented that they would not be offering further testi-
mony. After briefs were filed and the habeas court
reviewed the exhibits, the transcript of the prior habeas
trial that was held on May 22, 2018, and the newly
filed briefs, the court ordered supplemental briefing.
Specifically, the order stated: ‘‘ ‘This court, from its
review, finds that the matter can be completed without
prejudice to the parties. By resting on the existing
record, the parties have indicated that they see no need
to call new witnesses or recall previous witnesses for
further testimony. This court does not conclude it nec-
essary to recall any witness whose testimony is material
and disputed. Nevertheless, the Appellate Court’s deci-
sion ordered a new trial and highlighted the need for
a habeas court to make ‘‘findings with respect to issues
that the parties disputed.’’ . . . Additionally, the
Appellate Court noted that there were credibility deter-
minations the habeas court needed to resolve on
remand. . . . Accordingly . . . the parties [were
ordered] to submit simultaneous briefs . . . [that]
shall address any concerns the parties have based upon
the foregoing, as well as indicate that each party affirm-
atively and explicitly assents to the court making all
necessary findings and assessments from the May 22,
2018 transcript and evidentiary record, and render judg-
ment thereon.’ ’’ (Citations omitted.) Subsequently, on
February 18, 2022, both parties filed supplemental briefs
setting forth their agreement with the remanded claims
being adjudicated on the basis of the existing record.
In a memorandum of decision dated April 26, 2022,
the habeas court rendered judgment granting the opera-
tive habeas petition. In making that decision, the court
made a number of factual findings on the basis of the
testimony and exhibits submitted at the May 22, 2018
habeas trial. Because the respondent’s first claim chal-
lenges the sufficiency of those findings, we recount
them in detail. Specifically, the court found: ‘‘Lamon-
tagne began representing the petitioner in [a case
involving a theft at a Costco store (Costco case)] on or
about May 27, 2011. The matter was continued several
times so the defense could conduct its investigation.
On November 21, 2011, the petitioner applied for the
psychiatric accelerated rehabilitation diversionary pro-
gram, which was denied by the court, Hudock, J., on
February 6, 2012. After additional continuances, the
petitioner appeared on June 26, 2012, in [a case involv-
ing a theft at a Stew Leonard’s store (Stew Leonard’s
case)], and . . . Lamontagne was appointed in that
case in addition to the Costco case. On February 25,
2013, shortly before jury selection was scheduled to
begin on March 5, the petitioner and . . . Lamontagne
appeared in court to discuss various pretrial issues.
‘‘On March 5, 2013, the petitioner appeared before
the court, Dennis, J., for a change of plea. The petitioner
pleaded guilty, in [two separate dockets, to one count
of] larceny in the sixth degree in [each] docket. . . .
In each of the two dockets, the petitioner pleaded guilty
as a persistent larceny offender. The petitioner also
admitted in both cases to being previously convicted
of larceny in the sixth degree on December 13, 2007,
in Norwalk, as well as of larceny in the fifth degree on
January 9, 2004, in Bridgeport. After the prosecutor
detailed the supporting facts, the court canvassed the
petitioner. The petitioner acknowledged that he had
sufficient time to speak with . . . Lamontagne about
entering his guilty pleas; he was satisfied with the advice
he had received from counsel; no one had threatened
or forced or promised him anything into pleading guilty;
he was pleading guilty as a persistent larceny offender
by acknowledging that he had at least two previous
larceny convictions; he knew the maximum penalty for
each of the two cases was five years of incarceration;
he had discussed with counsel the evidence the state
would have [to] present to prove all elements of the
offenses; and . . . he understood that if he were not
a citizen of the United States, that he could face conse-
quences such as denial of naturalization, deportation
or removal from the United States. The court accepted
the guilty pleas after finding they were knowing, made
with the advice of competent counsel, and factually
supported. The court again asked the petitioner if he
understood that his convictions could result in his
deportation or denial of naturalization if he were not
a citizen, and the petitioner answered, ‘[y]es.’ The court
stated the terms of the agreed upon sentence that the
petitioner would receive, namely, 364 days on each of
the two dockets, to run concurrently, for a total effec-
tive sentence of 364 days. The matter was continued
for sentencing. On April 9, 2013, the court sentenced the
petitioner in accordance with the plea agreement. . . .
‘‘Lamontagne, a public defender, testified at the
habeas trial about the two criminal cases and his investi-
gation into the charges. In the Costco case, the peti-
tioner was alleged to have placed items inside his jacket
and passed all points of sale. A loss prevention officer
stopped the petitioner as he was leaving the store.
Lamontagne and his investigator went to the Costco
store to ascertain the layout of the store. The petitioner
indicated that he was not a member of Costco and was
going to the customer service desk to inquire about
getting a membership when he was stopped by the loss
prevention officer. According to the petitioner, he had
been cradling the items in his arms and not placing
them inside his jacket. There was no video surveillance
footage of the petitioner putting any of the items inside
his jacket.
‘‘The other offense occurred at a Stew Leonard’s con-
venience store. The petitioner was alleged to have taken
several peaches, walked out to his car in the parking
lot, and placed the peaches in the car. A customer
reported the petitioner to a store employee before he
made it to the parking lot. The petitioner told Lamon-
tagne that the car was his brother’s and that his brother
was there that day. Thus, there was a potential issue
of who put the peaches in the car. . . .
‘‘Lamontagne investigated and considered the poten-
tial defenses in both cases. According to Lamontagne,
the petitioner was adamant from the outset that he was
not guilty in both cases and wanted to proceed to trial.
Lamontagne viewed the facts of the Costco case as
presenting a viable defense. However, the likelihood of
going to trial dropped when the petitioner was charged
with the Stew Leonard’s case, which Lamontagne
assessed as having a weaker defense. The defense strat-
egy then shifted from going to trial to resolving the two
cases via a plea agreement. The state had made a plea
offer when the petitioner only had the Costco case
pending, but the petitioner rejected that first plea offer.
The state made a second plea offer after the petitioner
was charged in the Stew Leonard’s case, which would
have resolved both cases, but the petitioner rejected
the second plea offer. At a subsequent pretrial, the state
made a third plea offer that the petitioner accepted just
prior to the beginning of jury selection. . . .
‘‘Lamontagne and the petitioner were aware of the
potential immigration consequences resulting from con-
victions in the two cases. Lamontagne had spoken with
an immigration attorney who had indicated certain ‘red
flags’ that the petitioner then sought to avoid. For exam-
ple, one concern was avoiding a sentence greater than
one year to minimize the risk that immigration officials
would become aware of the petitioner. Another ‘red
flag’ was having convictions for crimes of moral turpi-
tude. Lamontagne’s immigration expert also told him
that immigration authorities will automatically look at
certain things, such as sentences of one year or more,
even if suspended, as well as crimes of moral turpitude.
Given the charges in the two criminal cases, the peti-
tioner could not avoid being convicted of larceny, a
crime of moral turpitude, but he could attempt to negoti-
ate a sentence of less than one year. . . . Lamontagne
worked to try to minimize the potential damage to the
petitioner.
‘‘It was . . . Lamontagne’s understanding that if a
defendant receives a sentence of more than one year,
then immigration authorities would automatically initi-
ate deportation proceedings, although those proceed-
ings would not necessarily result in actual deportation.
Conversely, it was Lamontagne’s understanding that
immigration authorities would not automatically initi-
ate deportation proceedings if the sentence were less
than one year. Lamontagne advised the petitioner
accordingly, and they strove to negotiate a sentence
of less than one year to minimize the risk of coming
automatically to the attention of immigration authori-
ties. . . .
‘‘Lamontagne understood that the petitioner could be
subjected to deportation if convicted of crimes of moral
turpitude, but that he would have a ‘fighting chance’
because his negotiated sentence was less than one year.
Lamontagne discussed with the petitioner the differ-
ence between one or two convictions for moral turpi-
tude. The state, however, never gave the petitioner the
opportunity to plead guilty in only one case. The plea
deal would resolve both cases and automatically result
in two separate convictions for larceny, thereby trig-
gering negative immigration consequences. The peti-
tioner’s options were to go to trial on both cases or
resolve them with guilty pleas to two larceny charges.
‘‘Lamontagne advised the petitioner to speak to his
immigration attorney about the difference between one
or two convictions for crimes of moral turpitude and
about his immigration and deportation issues. The peti-
tioner not only faced immigration and deportation con-
sequences from the Costco and Stew Leonard’s cases,
but also from the 2009 convictions for robbery in the
third degree and two counts of larceny in the fifth
degree. According to Lamontagne, who asked the peti-
tioner if he had any prior issues with his immigration
status, the petitioner was in the process of appealing
[the] 2009 criminal conviction[s], which had indepen-
dent immigration consequences, when he began repre-
senting the petitioner in the Costco case. Because the
conviction in the prior case was not final, it was Lamon-
tagne’s understanding that the immigration authorities
had not commenced any proceedings. Lamontagne
became aware that the appeal from the 2009 convictions
was unsuccessful before the Costco and Stew Leonard’s
cases were resolved.
‘‘On cross-examination . . . Lamontagne acknowl-
edged that it was his understanding after speaking to
an immigration attorney that the 2009 convictions on
appeal would, if ultimately unsuccessful, weigh more
heavily on immigration authority decisions than the
Costco and Stew Leonard’s convictions. The greater
weight to be given to the prior convictions directed the
focus of the Costco and Stew Leonard’s cases onto
reducing the sentence below the one year threshold.
Lamontagne not only had discussions with the peti-
tioner about the immigration consequences, but also
with his family. Lamontagne advised the petitioner and
his family that they should speak to an immigration
attorney. According to Lamontagne, if he believed that
the petitioner did not understand the immigration con-
sequences, then he would not have allowed him to plead
guilty unknowingly to such consequences.
‘‘The petitioner testified that he [had] had an immigra-
tion proceeding prior to the Costco and Stew Leonard’s
cases that resulted in a cancellation of a removal order.
According to the petitioner, he was not afraid of going
to trial on the two new cases because he no longer faced
deportation consequences from that prior immigration
proceeding. The petitioner viewed a letter submitted
by a Macy’s department store detective, Donavon Sin-
clair, as helpful in future proceedings. Sinclair’s letter,
which is undated but apparently produced after his
testimony that was critical to the state’s case in the
jury trial, purported to exonerate the petitioner of the
2006 larceny and robbery charges. See State v. Stephen-
son, 131 Conn. App. 510, 27 A.3d 41 (2011), cert. denied,
303 Conn. 92[9], 36 A.3d 240 (2012) . . . . The peti-
tioner maintains to this day that the Sinclair letter dem-
onstrates his innocence in the 2006 case.
‘‘The petitioner was not concerned about immigration
consequences at the beginning of the Costco and Stew
Leonard’s cases because he had recently won his immi-
gration case in 2010. According to the petitioner, he did
not become concerned about immigration conse-
quences until the state threatened to call immigration
authorities if he went to trial. The petitioner was con-
cerned about the immigration consequences should he
receive a sentence of a year or more, and that concern
impacted his decision to accept the plea agreement
resulting in a 364 day sentence for both cases. The
petitioner maintained that Lamontagne never advised
him that immigration consequences would be triggered
by having two convictions for crimes of moral turpitude.
However, the petitioner testified that ‘from what we
knew and we discussed at that time, if I only had one
conviction, there would be no mandatory detention.
I didn’t know that at the time that if you have two
convictions, it’s a mandatory . . . detention in immi-
gration.’ . . .
‘‘Consequently, the petitioner did not anticipate that
he would face mandatory removal based on the dual
larceny convictions since the sentences were under one
year and, therefore, did not qualify as felonies. The
court’s plea canvass, however, specifically identified
the two charges as felonies. The petitioner acknowl-
edged explicitly during the canvass that he understood
that he was pleading guilty to two felony charges. The
petitioner indicated that he would not have pleaded
guilty if he knew that he would be subjected to manda-
tory deportation. The petitioner’s concern about depor-
tation was corroborated by Tonya Warycha, who pro-
vided counseling services to him from 2011 until 2013,
[and] testified that he was consistently very worried and
stressed about being deported during that time period.
‘‘Attorney Renee Redman, who has extensive experi-
ence and specializes in immigration law, regularly con-
sults with defense counsel about the immigration conse-
quences of criminal convictions. Prior to testifying . . .
Redman reviewed the petitioner’s immigration files,
including the 2009–2010 immigration proceeding; the
decision and order by immigration Judge Straus on July
22, 2014, which found the petitioner was deportable
and ordered his removal from the United States; the
decision by the [b]oard . . . upholding the order of
removal; and the plea transcript in the present underly-
ing criminal cases. . . . Redman noted that the peti-
tioner’s convictions for the Costco and Stew Leonard’s
cases are for crimes of moral turpitude. Because there
are two such convictions not arising out of the same
scheme of conduct, and the petitioner was a lawful
permanent resident at the time, he was deportable for
these two convictions regardless of the sentence length.
There are defenses that can be asserted in removal
proceedings; however, because the petitioner had been
granted cancellation of removal previously, he could
not again be granted cancellation of removal because
it can only be granted once.
‘‘According to . . . Redman, receiving a sentence of
less than one year has no effect on immigration officials
becoming aware of a potential deportee. Immigration
authorities, in Redman’s experience, will become aware
of anyone incarcerated [for] any term of incarceration
through access to criminal databases. The petitioner
could have avoided deportation consequences for the
Costco and Stew Leonard’s cases if he had pleaded
guilty to one of the larcenies, received a sentence of 364
days, and the second larceny [was] nolled or dismissed.
However, the state’s plea offers never encompassed
less than the petitioner pleading guilty to two larcenies
[that] did not arise from the same scheme of conduct.
‘‘The respondent called . . . Lamontagne as a rebut-
tal witness. Lamontagne indicated that he did not tell
the petitioner that he would be deported as a result of
the two larceny convictions, but that he told him that he
was exposed to deportation. The petitioner, therefore,
knew that these convictions made him removable.
Lamontagne reiterated that he told the petitioner that he
should contact his immigration attorney for additional
details.’’ (Citations omitted; footnote omitted.)
On the basis of these findings, the court determined
that Lamontagne performed deficiently ‘‘by failing to
properly advise the petitioner about the automatic
deportation consequences associated with two crimes
of moral turpitude, irrespective of the sentence
imposed.’’ The court further determined that, ‘‘[b]ut for
that deficient advice, the petitioner would not have
pleaded guilty and [would have] proceeded to trial.’’6
Accordingly, the court granted the operative petition
and, thereafter, granted the respondent’s petition for
certification to appeal. Additional facts and procedural
history will be set forth as necessary.
Before we address the merits of the respondent’s
claims on appeal, we first set forth our well settled
standard of review governing habeas matters and claims
of ineffective assistance of counsel, as well as relevant
legal principles. ‘‘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 consti-
tuted a violation of the petitioner’s constitutional right
to effective assistance of counsel is plenary.’’ (Internal
quotation marks omitted.) Ayuso v. Commissioner of
Correction, 215 Conn. App. 322, 348, 282 A.3d 983, cert.
denied, 345 Conn. 967, 285 A.3d 736 (2022). ‘‘[A] finding
of fact is clearly erroneous when there is no evidence
in the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed. . . . A
reviewing court ordinarily will afford deference to those
credibility determinations made by the habeas court on
the basis of [the] firsthand observation of [a witness’]
conduct, demeanor and attitude.’’ (Internal quotation
marks omitted.) Noze v. Commissioner of Correction,
177 Conn. App. 874, 885–86, 173 A.3d 525 (2017); see
also Heywood v. Commissioner of Correction, 211
Conn. App. 102, 116, 271 A.3d 1086 (‘‘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 testi-
mony. . . . A pure credibility determination made by
a habeas court is unassailable.’’ (Citation omitted; inter-
nal quotation marks omitted.)), cert. denied, 343 Conn.
914, 274 A.3d 866 (2022).
‘‘The sixth amendment to the United States constitu-
tion guarantees a criminal defendant the assistance of
counsel for his defense. . . . It is axiomatic that the
right to counsel is the right to the effective assistance
of counsel.’’ (Internal quotation marks omitted.) Ayuso
v. Commissioner of Correction, supra, 215 Conn. App.
349. ‘‘[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 annunciated 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 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 . . . . 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.’’ (Internal quotation marks omitted.) Humble
v. Commissioner of Correction, 180 Conn. App. 697,
704–705, 184 A.3d 804, cert. denied, 330 Conn. 939, 195
A.3d 692 (2018). ‘‘Although a petitioner can succeed
only if he satisfies both prongs, a reviewing court can
find against the petitioner on either ground.’’ (Internal
quotation marks omitted.) Ayuso v. Commissioner of
Correction, supra, 349.
When a petitioner who faces mandatory deportation
as a consequence of his guilty plea raises a claim of
ineffective assistance of counsel, we analyze the claim
more particularly under Padilla v. Kentucky, 559 U.S.
356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). See Eche-
verria v. Commissioner of Correction, 193 Conn. App.
1, 10, 218 A.3d 1116, cert. denied, 333 Conn. 947, 219
A.3d 376 (2019). In Padilla, ‘‘the United States Supreme
Court concluded that the federal constitution’s guaran-
tee of effective assistance of counsel requires defense
counsel to accurately advise a noncitizen client of the
immigration consequences of a guilty plea.’’ Budzis-
zewski v. Commissioner of Correction, supra, 322
Conn. 511. Specifically, the court in Padilla explained:
‘‘Immigration law can be complex, and it is a legal
specialty of its own. Some members of the bar who
represent clients facing criminal charges, in either state
or federal court or both, may not be well versed in it.
There will, therefore, undoubtedly be numerous situa-
tions in which the deportation consequences of a partic-
ular plea are unclear or uncertain. The duty of the pri-
vate practitioner in such cases is more limited. When the
law is not succinct and straightforward . . . a criminal
defense attorney need do no more than advise a nonciti-
zen client that pending criminal charges may carry a
risk of adverse immigration consequences. But when
the deportation consequence is truly clear, as it was in
this case, the duty to give correct advice is equally
clear.’’ (Footnote omitted.) Padilla v. Kentucky, supra,
369. In Padilla, ‘‘the terms of the relevant immigration
statute [were] succinct, clear, and explicit in defining
. . . removal,’’ and the court concluded that ‘‘counsel
could have easily determined that [the petitioner’s] plea
would make him eligible for deportation simply from
reading the text of the statute . . . .’’ Id., 368. Instead,
the petitioner’s counsel in Padilla performed deficiently
by ‘‘provid[ing] [the petitioner with] false assurance
that his conviction would not result in his removal from
this country.’’ Id.Our Supreme Court recently analyzed Padilla in Bud-
ziszewski v. Commissioner of Correction, supra, 322
Conn. 506. In determining ‘‘what advice criminal
defense counsel must give to a noncitizen client who
is considering pleading guilty to a crime when federal
law prescribes deportation as the consequence for a
conviction’’; id.; the court in Budziszewski explained:
‘‘For crimes designated as aggravated felonies . . .
[for which] federal law mandates deportation almost
without exception . . . Padilla requires counsel to
inform the client about the deportation consequences
prescribed by federal law. . . . Because noncitizen cli-
ents will have different understandings of legal con-
cepts and the English language, there are no precise
terms or one-size-fits-all phrases that counsel must use
to convey this message. Rather, courts reviewing a
claim that counsel did not comply with Padilla must
carefully examine all of the advice given and the lan-
guage actually used by counsel to ensure that counsel
explained the consequences set out in federal law accu-
rately and in terms the client could understand. In cir-
cumstances when federal law mandates deportation
and the client is not eligible for relief under an exception
to that command, counsel must unequivocally convey
to the client that federal law mandates deportation as
the consequence of pleading guilty.’’ (Citations omit-
ted.) Id., 507.
The petitioner in Budziszewski, a Polish national
who emigrated to the United States and later became
a lawful permanent resident, filed a petition for a writ of
habeas corpus, claiming that his trial counsel provided
ineffective assistance by failing to advise him of the
immigration consequences of his guilty plea to an aggra-
vated felony. Id., 508–509. The habeas court granted
the habeas petition, concluding that, because ‘‘the legal
consequences faced by the petitioner were clear, and
federal law mandated deportation’’; id., 512; the peti-
tioner’s trial counsel ‘‘was required to inform the peti-
tioner that his plea of guilty to an aggravated felony
made him ‘subject to mandatory deportation . . . .’ ’’
Id., 510. The court in Budziszewski ‘‘emphasize[d] that
there are no fixed words or phrases that counsel must
use to convey [the] information, and courts reviewing
Padilla claims must look to the totality of counsel’s
advice, and the language counsel actually used, to
ensure that counsel accurately conveyed the severity
of the consequences under federal law to the client in
terms the client could understand. . . . [T]he focus of
the court’s inquiry must be on the essence of the infor-
mation conveyed to the client to ensure that counsel
clearly and accurately informed the client of the immi-
gration consequences under federal law . . . . This
requires the court to consider the totality of the advice
given by counsel, make findings about what counsel
actually told the client, and then determine whether,
based on those findings, the petitioner met his burden
to prove that counsel’s advice failed to convey the infor-
mation required under Padilla.’’ (Citations omitted.)
Id., 512–14.
Moreover, there was evidence in Budziszewski that
the advice given by the petitioner’s counsel may have
‘‘[cast] doubt on the likelihood that federal authorities
would actually apprehend and deport the petitioner
despite the clarity of the law, and the parties disagree[d]
whether giving [that] type of advice violates Padilla.’’
Id., 514. The court in Budziszewski, thus, also consid-
ered ‘‘whether, in addition to advising the client what
federal law mandates, Padilla requires counsel to also
advise a client of the actual likelihood that immigration
authorities will enforce that mandate’’; (emphasis in
original) id., 507; and ‘‘the impact of any advice about
the likelihood of enforcement advice on counsel’s duty
under Padilla.’’ Id., 514. In addressing those issues, the
court stated: ‘‘Given the difficulty in predicting enforce-
ment practices, counsel is not required to provide the
client with predictions about whether or when federal
authorities will apprehend the client and initiate depor-
tation proceedings. Nevertheless, if counsel chooses
to give advice or if the client inquires about federal
enforcement practices, counsel must still impress upon
the client that once federal authorities apprehend the
client, deportation will be practically inevitable under
federal law.’’ Id., 515.
In summary, the conclusions of the court in Budzis-
zewski resulted ‘‘in a two step inquiry for a court
reviewing a claim that counsel’s erroneous enforcement
advice violated Padilla. First, the court must determine
whether counsel complied with Padilla by explaining
to the client the deportation consequences set forth in
federal law. The advice must be accurate, and it must
be given in terms the client could comprehend. If the
petitioner proves that counsel did not meet these stan-
dards, then counsel’s advice may be deemed deficient
under Padilla. If counsel gave the advice required under
Padilla, but also expressed doubt about the likelihood
of enforcement, the court must also look to the totality
of the immigration advice given by counsel to determine
whether counsel’s enforcement advice effectively
negated the import of counsel’s advice required under
Padilla about the meaning of federal law.’’ Id., 515–16.
Because the habeas court in Budziszewski made no
findings of fact regarding the content of the advice given
by the petitioner’s trial counsel, and the court did not
indicate which parts, if any, of the testimony given by
the petitioner and his trial counsel the court credited,
the matter was remanded for a new habeas trial. Id.,
510, 518.
With these principles in mind, we turn to the respon-
dent’s claims on appeal.
I
The respondent’s first claim is that the habeas court
improperly found that Lamontagne performed defi-
ciently and that it reached such a conclusion, without
making findings, as required by Budziszewski, as to
the specific advice provided by Lamontagne. We are
not persuaded.
In support of this claim, the respondent directs our
attention to the habeas court’s memorandum of deci-
sion in which the court stated that ‘‘Lamontagne was
aware that convictions for crimes of moral turpitude
would subject the petitioner to deportation and even
discussed with him the difference between one or two
convictions, although the specifics of such a discussion
are unclear from the testimony.’’ (Emphasis added.)
To reiterate, under the guidance set forth by our
Supreme Court in Budziszewski, we, as a court
reviewing a claim that counsel’s advice violated Padilla,
must engage in a two step inquiry: first, we must deter-
mine whether Lamontagne gave the petitioner accurate
advice regarding the deportation consequences set
forth in federal law, in terms that the petitioner could
understand, and, second, if Lamontagne gave the advice
required by Padilla but also expressed doubt about the
likelihood of enforcement, we must look to the totality
of the immigration advice given to determine whether
Lamontagne’s enforcement advice effectively negated
the advice required under Padilla about the meaning
of federal law. See Budziszewski v. Commissioner of
Correction, supra, 322 Conn. 515–16.
Lamontagne’s testimony at the habeas trial sheds
light on the court’s statement that the record was
unclear as to what Lamontagne specifically told the
petitioner regarding the difference between one and
two convictions of crimes of moral turpitude. In his
testimony, Lamontagne acknowledged that larceny is
considered a crime of moral turpitude and explained
his reasoning for negotiating the 364 day sentences in
the plea deal, namely, that he was trying to avoid having
the petitioner come to the automatic attention of immi-
gration authorities. As Lamontagne explained, he had
consulted with an immigration expert,7 who told him
that immigration authorities automatically ‘‘look at’’
certain things, including, for example, a sentence of
one year or more, as well as the commission of crimes
of moral turpitude. On the basis of that advice, Lamon-
tagne understood that, if the petitioner received a sen-
tence of one year or more, immigration authorities
would initiate deportation proceedings, but that it was
not automatic if the petitioner received a sentence of
less than one year. When asked if he had given the
petitioner ‘‘any other advice about immigration conse-
quences . . . [i]n addition to the advice about the one
year sentence,’’ Lamontagne responded, ‘‘[n]ot that I
can recall.’’ (Emphasis added.)
On direct examination of Lamontagne by the petition-
er’s habeas counsel, the following relevant colloquy
took place:
‘‘Q. Okay. And you mentioned something about moral
turpitude and convictions for moral turpitude earlier.
Can you explain that in a little bit more detail?
‘‘A. My understanding—immigration looks at certain
things and what they consider crimes of moral turpi-
tude; what they believe crimes that tend to show a
person would act—I guess, more likely to act in an
immoral way was something that red-flagged them.
Stuff like forgeries, identity theft, larcenies. Things that
show people behaving in rather discrete criminal man-
ners.
‘‘Q. And what was your understanding of the specific
immigration consequences about—or, actually, with-
drawn. So, it was your understanding that larceny was
a crime involving moral turpitude?
‘‘A. That is my understanding. Yes.
‘‘Q. And what was your understanding of the specific
immigration consequences that [the petitioner] would
face if he accepted the plea agreement in this case?
‘‘A. Just—he would still be subject to deportation
because of the crimes of moral turpitude but that he
would at least have a fighting chance, so to speak,
because that’s sort of the only strike against him.
‘‘Q. Okay.
‘‘A. That was the best we were going to be able to
get—work out on this particular deal.
‘‘Q. All right. Did you ever talk to him about whether
there was a difference between one conviction for a
moral turpitude crime and two convictions for a moral
turpitude crime?
‘‘A. We did discuss that. Yes.
‘‘Q. And what was your advice to him then?
‘‘A. At that point, you know, we weren’t given the
opportunity to plead to just one. It was a package deal
that the prosecutor was refusing to come off of both
charges. So, it was either take the deal or go to trial
on both of them.
‘‘Q. Okay. And did you ever tell . . . [the petitioner]
about what the immigration consequences would be
if he had only been convicted of one crime involving
moral turpitude?
‘‘A. I don’t recall telling him that because I’m not an
immigration attorney . . . .’’ (Emphasis added.)
Thus, as the transcript shows, when asked what spe-
cific advice he had given to the petitioner regarding the
difference between one and two convictions of crimes
of moral turpitude, Lamontagne did not provide an
answer that was responsive to the court’s inquiry. He
did, however, subsequently acknowledge that he could
not recall telling the petitioner about the immigration
consequences of having only one conviction of a crime
of moral turpitude.8 He also testified that he could not
recall giving the petitioner advice about the immigration
consequences of his plea deal beyond the advice given
concerning the one year sentence. It is also apparent
from Lamontagne’s testimony that he did not have a
correct understanding of the immigration law governing
the petitioner’s situation. Despite acknowledging that
the crimes for which the petitioner was pleading guilty
were crimes of moral turpitude and suggesting that he
did discuss with the petitioner the difference between
having one or two convictions for such crimes, he never-
theless pursued the 364 day sentences because he was
under the mistaken belief that they would give the peti-
tioner a ‘‘fighting chance’’ of avoiding automatic depor-
tation proceedings, and he so advised the petitioner.
Although the respondent places much weight on the
court’s statement that the specific details of one conver-
sation between the petitioner and Lamontagne were
unclear, the respondent, by narrowly focusing on that
one statement of the court, ignores the numerous other
findings set forth by the court in its memorandum of
decision. For example, the court specifically found that
‘‘Lamontagne’s assessment that sentences lower than
one year would help protect the petitioner from immi-
gration consequences was clearly erroneous.’’9 In other
words, Lamontagne did not provide accurate advice. In
making that finding, the court explained that ‘‘[i]t was
. . . Lamontagne’s understanding that if a defendant
receives a sentence of more than one year, then immi-
gration authorities would automatically initiate depor-
tation proceedings, although those proceedings would
not necessarily result in actual deportation. Conversely,
it was Lamontagne’s understanding that immigration
authorities would not automatically initiate deportation
proceedings if the sentence were less than one year.
Lamontagne advised the petitioner accordingly and they
strove to negotiate a sentence of less than one year
to minimize the risk of coming automatically to the
attention of immigration authorities.’’
Redman’s testimony demonstrates the inaccuracy of
such advice. Specifically, Redman testified as to the
immigration consequences to the petitioner, as a lawful
permanent resident, resulting from his convictions in
the Costco and Stew Leonard’s cases, stating that the
petitioner’s two convictions for crimes of moral turpi-
tude in those two cases, which did not arise out of
the same scheme of conduct, rendered the petitioner
deportable. Redman further testified that, when retail
theft is involved, it is presumptively a crime of moral
turpitude and that sentence length of less than one year
would have ‘‘no effect at all’’ on whether the petitioner
would come to the attention of immigration authorities.
In Redman’s experience, immigration officials will
become aware of a potential deportee through their
access to criminal databases.
Furthermore, the court found that ‘‘Lamontagne indi-
cated that he did not tell the petitioner that he would
be deported as a result of the two larceny convictions
but, [rather] told him that he was exposed to deporta-
tion.’’ (Emphasis added.) The court also found that
‘‘[t]he automatic deportation consequence[s]’’ resulting
from the petitioner’s guilty pleas were ‘‘readily appar-
ent’’ and that ‘‘the law is succinct and straightforward.’’
Again, this finding was supported by the testimony of
Redman that the immigration consequences to which
she testified were clear from the face of the immigration
statutes.10
Accordingly, under our two step analysis, we con-
clude that the habeas court properly determined that
Lamontagne performed deficiently by failing to provide
the petitioner with accurate advice regarding the immi-
gration consequences of his guilty pleas to two unre-
lated crimes of moral turpitude. When, as here, ‘‘the
deportation consequence is truly clear . . . the duty
to give correct advice is equally clear’’; Padilla v. Ken-
tucky, supra, 559 U.S. 357; and ‘‘counsel must unequivo-
cally convey to the client that federal law mandates
deportation as the consequence for pleading guilty.’’
Budziszewski v. Commissioner of Correction, supra,
322 Conn. 507. The plain language of the applicable
federal law provides that ‘‘[a]ny alien who at any time
after admission is convicted of two or more crimes
involving moral turpitude, not arising out of a single
scheme of criminal misconduct, regardless of whether
confined therefor and regardless of whether the convic-
tions were in a single trial, is deportable.’’ 8 U.S.C.
§ 1227 (a) (2) (A) (ii) (2012). Lamontagne gave inaccu-
rate advice when he told the petitioner that his guilty
pleas would merely expose him to deportation and that
immigration authorities would not automatically initi-
ate deportation proceedings if each sentence under the
plea agreement was for less than one year. See, e.g.,
Miller v. Commissioner of Correction, 176 Conn. App.
616, 635, 170 A.3d 736 (2017) (counsel’s advice, which
‘‘inaccurately conveyed to the petitioner that he would
have some chance of avoiding deportation after plead-
ing guilty,’’ did not meet standard set forth in Padilla).
Moreover, that inaccurate advice was compounded by
Lamontagne’s suggestion to the petitioner that he had
a ‘‘fighting chance’’ of not coming to the attention of
immigration authorities by pleading guilty to the larceny
charges in each case and receiving sentences in each
matter of 364 days. See, e.g., Duncan v. Commissioner
of Correction, 171 Conn. App. 635, 659, 157 A.3d 1169(habeas court improperly found that counsel was not
deficient when counsel merely warned petitioner of
heightened risk of deportation and failed to tell peti-
tioner that he was subject to mandatory deportation
under federal law), cert. denied, 325 Conn. 923, 159
A.3d 1172 (2017).
We also are not persuaded that the habeas court’s
decision fails to comply with the requirement of Budzis-
zewski that the court ‘‘make findings about what coun-
sel actually told the client, and then determine whether,
based on those findings, the petitioner met his burden
to prove that counsel’s advice failed to convey the infor-
mation required under Padilla.’’ Budziszewski v. Com-
missioner of Correction, supra, 322 Conn. 513–14. In
Budziszewski, the habeas court did not make any find-
ings of fact regarding what trial counsel actually said
to the petitioner about the immigration consequences
mandated by federal law, and it did not make any find-
ings about whether trial counsel gave any advice about
the likelihood of enforcement and, if so, whether such
advice negated counsel’s advice about the deportation
consequences mandated by federal law. Id., 516. Con-
versely, in the present case, the habeas court discussed
at length in its memorandum of decision its findings of
fact as to the discussions between the petitioner and
Lamontagne and what had transpired prior to the peti-
tioner entering his guilty pleas. The court’s determina-
tion that Lamontagne performed deficiently was based
on its finding that Lamontagne did not advise the peti-
tioner accurately regarding the immigration conse-
quences of his guilty pleas due to his misunderstanding
that the length of the petitioner’s sentences for his two
larceny convictions would have an impact on whether
deportation proceedings would be instituted against the
petitioner.11
II
The respondent’s second claim is that, as a conse-
quence of the court’s failure to make the requisite find-
ings under Budziszewski, it failed to hold the petitioner
to his burden to rebut the presumption that Lamon-
tagne’s advice fell within the wide range of reasonable
professional assistance. The court, however, specifi-
cally found that Lamontagne ‘‘discussed with the peti-
tioner the difference between one and two convictions
for crimes involving moral turpitude,’’ although the
court did not set forth the specific advice given, as it
was unclear from the record. Thus, according to the
respondent, because we must ‘‘indulge a strong pre-
sumption’’ that Lamontagne’s ‘‘conduct falls within the
wide range of reasonable professional assistance’’;
(internal quotation marks omitted) Ayuso v. Commis-
sioner of Correction, supra, 215 Conn. App. 349; and,
because the petitioner must overcome that presump-
tion, which the respondent claims he failed to do, we
must presume that the advice given by counsel regard-
ing the differences between one and two convictions
for crimes involving moral turpitude was correct. We
are not persuaded.
‘‘It is well established that when analyzing a claim of
ineffective assistance, ‘counsel is strongly presumed to
have rendered adequate assistance and made all signifi-
cant decisions in the exercise of reasonable profes-
sional judgment.’ Strickland v. Washington, supra, 466
U.S. 690.’’ Sanders v. Commissioner of Correction, 83
Conn. App. 543, 551, 851 A.2d 313, cert. denied, 271
Conn. 914, 859 A.2d 569 (2004). As this court has stated
previously, ‘‘[w]e . . . are mindful that [a] fair assess-
ment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel’s chal-
lenged conduct, and to evaluate the conduct from coun-
sel’s perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must indulge
a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance;
that is, the [petitioner] must overcome the presumption
that, under the circumstances, the challenged action
might be considered sound trial strategy. . . . [C]oun-
sel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exer-
cise of reasonable professional judgment. . . . Simi-
larly, the United States Supreme Court has emphasized
that a reviewing court is required not simply to give
[counsel] the benefit of the doubt . . . but to affirma-
tively entertain the range of possible reasons . . .
counsel may have had for proceeding as [he or she]
did.’’ (Internal quotation marks omitted.) Ayuso v. Com-
missioner of Correction, supra, 215 Conn. App. 349–50.
‘‘Nowhere is it said, though, that such a presumption
is irrebuttable. As with any refutable presumption, the
petitioner may rebut the presumption on adequate proof
of sufficient facts indicating a less than competent per-
formance by counsel.’’ Sanders v. Commissioner of
Correction, supra, 551; see also White v. Commissioner
of Correction, 145 Conn. App. 834, 841, 77 A.3d 832,
cert. denied, 310 Conn. 947, 80 A.3d 906 (2013).
Our review of the record demonstrates that the
habeas court was aware of the Strickland presumption,
which it set forth in its memorandum of decision. The
court, having determined that Lamontagne had pro-
vided incorrect advice to the petitioner regarding the
immigration consequences of his guilty pleas, necessar-
ily determined that either the presumption had been
rebutted or that it did not apply. The essence of the
respondent’s argument is that, because it is unclear
exactly what was said to the petitioner in the one partic-
ular conversation highlighted by the court, the court
should have presumed that Lamontagne gave correct
advice.12 Specifically, the respondent argues that ‘‘the
habeas court erred when it construed against the
respondent the lack of clarity attainable from the evi-
dence regarding what advice Lamontagne actually pro-
vided.’’ Under the circumstances of this case, we do
not agree. Even though it was unclear from the record
what Lamontagne told the petitioner during that one
conversation, the record clearly reflects that Lamon-
tagne did not know and failed to advise the petitioner
that, as a result of his guilty pleas to two crimes of
moral turpitude, which did not arise out of a single
scheme of criminal conduct, he was automatically sub-
ject to deportation. Because of that lack of knowledge,
Lamontagne arranged the plea deal under the mistaken
belief that sentences of less than one year would give
the petitioner a chance of not coming to the inevitable
attention of immigration authorities. He also acknowl-
edged that he did not advise the petitioner concerning
the immigration consequences of being convicted of
one crime involving moral turpitude, although he
believed that the state did not have a strong case in the
Costco case.
Moreover, there is nothing in the record to suggest
that the court construed the lack of clarity in that one
conversation against the respondent. The court’s deter-
mination that Lamontagne performed deficiently was
based on its finding, which is amply supported by the
record, that Lamontagne inaccurately advised the peti-
tioner that sentences of less than one year for his two
larceny convictions could help to protect the petitioner
from deportation. Despite the clear language of the
federal law concerning the immigration consequences
for convictions of two crimes of moral turpitude not
arising out of a single scheme of criminal conduct,
Lamontagne did not so advise the petitioner and justi-
fied his failure to do so on the ground that he was not
an immigration attorney. In light of the overwhelming
evidence, the presumption that counsel did not defi-
ciently perform his obligations to the petitioner clearly
had been rebutted. See Hinton v. Alabama, 571 U.S.
263, 274, 134 S. Ct. 1081, 188 L. Ed. 2d 1 (2014) (‘‘[a]n
attorney’s ignorance of a point of law that is fundamen-
tal to his case combined with his failure to perform
basic research on that point is a quintessential example
of unreasonable performance under Strickland’’).
In connection with his argument that the court did
not hold the petitioner to his burden of rebutting the
presumption that Lamontagne did not perform defi-
ciently, the respondent further asserts that Lamontagne
cannot be faulted for giving inaccurate advice because
Lamontagne received that advice by consulting with an
expert on immigration law. Specifically, the respondent
argues that, ‘‘if Lamontagne advised the petitioner con-
sistently with the guidance that he had received from
an immigration consultant . . . that receiving 364 day
sentences could reduce the likelihood of the petitioner
coming to the attention of immigration authorities, pro-
viding such advice was reasonable. An attorney reason-
ably may rely upon the opinion of an expert, and, after
having received an expert’s opinion or advice, an attor-
ney is not required to continue searching for other
experts who may provide differing opinions.’’ The cases
on which the respondent relies for this proposition
involve situations in which counsel consulted a medical
expert, and it was determined that counsel was entitled
to rely on the medical expert’s opinion concerning, for
example, whether the petitioner suffered from a mental
defect or disease; see, e.g., Santiago v. Commissioner
of Correction, 90 Conn. App. 420, 426, 876 A.2d 1277,
cert. denied, 275 Conn. 930, 883 A.2d 1246 (2005), cert.
denied sub nom. Santiago v. Lantz, 547 U.S. 1007, 126
S. Ct. 1472, 164 L. Ed. 2d 254 (2006); or in determining
whether to present expert testimony. See, e.g., Brian
S. v. Commissioner of Correction, 172 Conn. App. 535,
543–44, 160 A.3d 1110, cert. denied, 326 Conn. 904, 163
A.3d 1204 (2017). The present case involves a signifi-
cantly different situation in which counsel himself, as
an attorney, has a sixth amendment obligation to advise
his client accurately regarding the immigration conse-
quences of his guilty plea.
The fact that Lamontagne consulted with an immigra-
tion expert, who either gave him incorrect advice or
whose advice Lamontagne simply misunderstood, can-
not excuse Lamontagne’s failure to advise the petitioner
accurately regarding the immigration consequences of
his guilty pleas, as required under Padilla. We are not
aware of any exception to the requirement set forth in
Padilla for such situations. The fact remains that the
petitioner was entitled under the sixth amendment to
be informed accurately of the immigration conse-
quences of his guilty pleas. Indeed, the United States
Supreme Court stated in Padilla that it is the responsi-
bility of courts ‘‘under the [c]onstitution to ensure that
no criminal defendant—whether a citizen or not—is
left to the ‘mercies of incompetent counsel.’ . . . To
satisfy this responsibility, we now hold that counsel
must inform [his] client whether his plea carries a risk
of deportation. Our longstanding [s]ixth [a]mendment
precedents, the seriousness of deportation as a conse-
quence of a criminal plea, and the concomitant impact
of deportation on families living lawfully in this country
demand no less.’’ (Citation omitted.) Padilla v. Ken-
tucky, supra, 559 U.S. 374. The court was equally clear
that ‘‘[i]t is quintessentially the duty of counsel to pro-
vide [his] client with available advice about an issue like
deportation, and the failure to do so ‘clearly satisfies
the first prong of the Strickland analysis.’ ’’ Id., 371.
Recognizing the complexities of immigration law, the
court in Padilla imposed a limited duty on counsel
when the deportation consequences of a particular plea
are unclear or uncertain. Id., 369. When the deportation
consequences are clear, however, as they are in the
present case, counsel is obligated to give correct advice.
To excuse counsel’s failure to do so simply because
counsel consulted with an expert in immigration law
would undermine the clear requirement of Padilla.
The Court of Appeals of Oregon reached a similar
decision in Daramola v. State, 294 Or. App. 455, 430
P.3d 201 (2018), review denied, 364 Or. 723, 440 P.3d
667 (2019), and we find its analysis therein instructive
on this issue. Daramola involved a claim by a petitioner
that his counsel had provided ineffective assistance by
failing to give accurate advice regarding the immigra-
tion consequences of the petitioner’s guilty plea. Id.,
457. In rejecting the state’s argument that ‘‘criminal
defense counsel [could not] be found deficient because
he referred [the] petitioner to immigration counsel, and
‘was entitled to rely on the opinion of experts,’ ’’ the
Court of Appeals of Oregon stated: ‘‘To the extent the
state seems to argue that bringing in immigration coun-
sel per se renders criminal defense counsel’s perfor-
mance constitutionally adequate, the state misunder-
stands Padilla. If criminal defense counsel relies on
outside consultation with immigration attorneys in edu-
cating herself or himself about immigration conse-
quences, outside immigration counsel functions as a
member of the defense team. Consultation with immi-
gration counsel is a tool criminal defense counsel can
use, but the involvement of immigration counsel does
not obviate defense counsel’s [s]ixth [a]mendment obli-
gation to provide constitutionally adequate advice. As
Padilla held, ‘when the deportation consequence is
truly clear . . . the duty to give correct advice is
equally clear.’ . . . The duty is defense counsel’s.’’
(Citation omitted; emphasis in original.) Id., 464. The
court in Daramola further explained: ‘‘Of all the facets
of the legal profession, only the criminal defense attor-
ney is specifically enshrined in the constitution. The
adequate and effective representation guaranteed by
the [s]ixth and [f]ourteenth [a]mendments fall squarely
on the shoulders of criminal defense counsel. As dis-
cussed, Padilla makes clear that advice of immigration
consequences is part of—not collateral to—that [s]ixth
[a]mendment guarantee. . . . For the immigrant defen-
dant, immigration consequences are as central to the
defense function as case investigation, pretrial suppres-
sion, evaluating defenses, and calculating sentence
exposure.’’ (Citation omitted.) Id.For the foregoing reasons, the respondent’s second
claim fails.
III
The respondent’s final claim is that the habeas court
applied a higher standard than what the law requires.
Specifically, the respondent argues that, ‘‘even if the
habeas court’s analysis comported with Budziszewski’s
requirements, the court nevertheless erred by finding
that Lamontagne performed deficiently by failing to
advise that the petitioner’s pleas would ‘automatically
subject him to mandatory deportation.’ . . . Padilla
and Budziszewski do not require an attorney to employ
those specific words or language that absolute.’’ (Cita-
tions omitted; emphasis in original.) According to the
respondent, pursuant to Padilla and Budziszewski, ‘‘an
attorney may perform reasonably by advising that a
guilty plea will render a client legally deportable, but
that other factors may reduce the likelihood that depor-
tation proceedings will in fact occur. Here, the evidence
shows that Lamontagne advised the petitioner that his
guilty plea would render him deportable, but that there
was a chance that immigration authorities would not
pursue enforcement if the petitioner received a sen-
tence of less than one year. Under Padilla and Budzis-
zewski, that advice was reasonable under the petition-
er’s specific circumstances, and, therefore, the
petitioner failed to prove deficient performance.’’ We
do not agree.
‘‘[T]he precise advice counsel must give depends on
the clarity of the consequences specified by federal
immigration law.’’ Budziszewski v. Commissioner of
Correction, supra, 322 Conn. 511. Although the respon-
dent is correct that, pursuant to Budziszewski, ‘‘there
are no precise terms or one-size-fits-all phrases that
counsel must use to convey’’ the deportation conse-
quences prescribed by federal law, Budziszewski also
makes clear that, ‘‘[i]n circumstances when federal law
mandates deportation . . . counsel must unequivo-
cally convey to the client that federal law mandates
deportation as the consequence for pleading guilty.’’
(Emphasis added.) Budziszewski v. Commissioner of
Correction, supra, 322 Conn. 507. As in Budziszewski,
in the present case, the legal consequences faced by
the petitioner were clear and federal law mandated
deportation. Having reviewed the habeas court’s memo-
randum of decision as a whole, we are not persuaded
that the habeas court deviated from the standard set
forth in Padilla and Budziszewski by requiring the use
of specific words or phrases. Rather, it appears that
the habeas court focused more broadly on whether
Lamontagne correctly conveyed to the petitioner the
specific, mandatory deportation consequences of the
guilty pleas under federal law when he undercut the
certainty of that result with clearly erroneous advice
suggesting that deportation might be avoidable. See id.,512–13. The essence of the information conveyed to
the petitioner suggested that, given the structure of the
sentencing under the plea deal, there was a chance that
the petitioner would not be deported, which did not
accurately depict the immigration consequences called
for with respect to the petitioner’s guilty pleas to two
separate crimes of moral turpitude. See id., 513. More-
over, to the extent that Lamontagne gave advice ‘‘cast-
ing doubt on the likelihood that federal authorities
would actually apprehend and deport the petitioner
despite the clarity of the law’’; id., 514; it was incumbent
that he convey to the petitioner that, once apprehended,
deportation would be ‘‘practically inevitable under fed-
eral law,’’ which he failed to do.13 Id., 515.
The judgment is affirmed.
In this opinion SUAREZ, J., concurred.
1
‘‘The petitioner further pleaded guilty to being a persistent larceny
offender under General Statutes § 53a-40.’’ Stephenson v. Commissioner of
Correction, supra, 197 Conn. App. 174 n.2.
General Statutes (Rev. to 2013) § 53a-40 (e) provides that ‘‘[a] persistent
larceny offender is a person who (1) stands convicted of larceny in the third
degree in violation of the provisions of section 53a-124 in effect prior to
October 1, 1982, or larceny in the fourth, fifth or sixth degree, and (2) has
been, at separate times prior to the commission of the present larceny,
twice convicted of the crime of larceny.’’
General Statutes (Rev. to 2013) § 53a-40 (l) provides that, ‘‘[w]hen any
person has been found to be a persistent larceny offender, the court, in lieu
of imposing the sentence authorized by section 53a-36 for the crime of
which such person presently stands convicted, may impose the sentence
of imprisonment for a class D felony authorized by section 53a-35, if the
crime of which such person presently stands convicted was committed prior
to July 1, 1981, or authorized by section 53a-35a, if the crime of which such
person presently stands convicted was committed on or after July 1, 1981.’’
2
The petitioner’s habeas counsel represented that, as of the date of the
original trial on his habeas petition, the petitioner had completed serving
his concurrent 364 day sentences. The petitioner’s counsel further repre-
sented that the petitioner was currently serving sentences for a subsequent
conviction of burglary in the third degree, attempt to commit tampering
with physical evidence, and attempt to commit arson in the second degree,
all of which arose from events occurring in March, 2013. See State v. Stephen-
son, 187 Conn. App. 20, 22, 201 A.3d 427 (2019), rev’d, 337 Conn. 643, 255
A.3d 865 (2020). The petitioner received a total effective sentence of twelve
years of incarceration followed by eight years of special parole on this
conviction. Id., 29. On direct appeal, this court reversed the trial court’s
judgment of conviction rendered against the petitioner and remanded the
case with direction to render a judgment of acquittal on all charges. Id., 22.
The state petitioned for certification to appeal from this court’s judgment,
which our Supreme Court granted in part. State v. Stephenson, 331 Conn. 914,
204 A.3d 702 (2019). Our Supreme Court thereafter reversed the judgment
of this court and remanded the case to this court for further proceedings.
State v. Stephenson, 337 Conn. 643, 654, 255 A.3d 865 (2020). On remand,
this court affirmed the judgment of conviction. State v. Stephenson, 207
Conn. App. 154, 192, 263 A.3d 101 (2021). The petitioner remains incarcer-
ated.
3
‘‘In 2010, a judgment of conviction of, inter alia, robbery in the third
degree was rendered against the petitioner, which judgment this court
affirmed on appeal. State v. Stephenson, 131 Conn. App. 510, 512–13, 27
A.3d 41 (2011), cert. denied, 303 Conn. 929, 36 A.3d 240 (2012).
‘‘Thereafter, the petitioner brought a habeas action in the United States
District Court for the District of Connecticut challenging the robbery convic-
tion. Stephenson v. Connecticut, United States District Court, Docket No.
3:12CV1233 (RNC) (D. Conn. March 31, 2014). The petitioner raised three
claims in his original petition and, subsequently, filed two motions to amend
his petition to allege additional claims. Id. The District Court denied the
petitioner’s motions to amend on the ground that the claims raised therein—
ineffective assistance of counsel, improper dismissal of a juror, and actual
innocence—were procedurally defaulted. Id. The District Court also denied
the petition. Id.‘‘On appeal, the [United States Court of Appeals for the Second Circuit]
‘remanded for a determination of whether the new claims, although proce-
durally defaulted, can be adjudicated on the merits based on [the] petitioner’s
claim that he is actually innocent of [the robbery conviction].’ Stephenson
v. Connecticut, United States District Court, Docket No. 3:12CV1233 (RNC)
(D. Conn. January 8, 2018); see also Stephenson v. Connecticut, 639 Fed.
Appx. 742, 746 (2d Cir. 2016). The District Court, on remand, ‘conclude[d]
that [the petitioner] ha[d] not met his burden of establishing a credible,
compelling claim of actual innocence and therefore dismiss[ed] the petition.’
Stephenson v. Connecticut, supra, United States District Court, Docket No.
3:12CV1233 (RNC). Neither the District Court nor the Second Circuit issued
the petitioner a certificate of appealability, and, thus, his appeal from the
District Court’s judgment was dismissed. See Stephenson v. Connecticut,
United States Court of Appeals, Docket No. 18-367 (2d Cir. February 8,
2019).’’ Stephenson v. Commissioner of Correction, supra, 197 Conn. App.
175–76 n.4.
4
‘‘The petitioner did not file a direct appeal from the larceny convictions.’’
Stephenson v. Commissioner of Correction, supra, 197 Conn. App. 176 n.5.
5
Specifically, ‘‘Judge Sferrazza found that the immigration judge had con-
cluded that the robbery conviction constituted an aggravated felony and
had ordered the petitioner’s removal, in part, on that basis. Judge Sferrazza
found that the petitioner did not challenge the robbery conviction in the
operative petition. He further found that, on appeal, the board affirmed both
the immigration judge’s aggravated felony conclusion and order of removal.
Accordingly, Judge Sferrazza concluded that his adjudication of the petition-
er’s claim ‘can provide no practical benefit to [him] because the mandated
removal order, affirmed on appeal, is premised on an entirely different
conviction for an aggravated felony, apart from [the] larceny convictions’
that were challenged in the operative petition. The petitioner filed a petition
for certification to appeal, which Judge Sferrazza granted.’’ (Footnote omit-
ted.) Stephenson v. Commissioner of Correction, supra, 197 Conn. App. 177.
6
We note that the respondent has not challenged the habeas court’s
prejudice finding on appeal.
7
Lamontagne could not recall the specific expert with whom he had
consulted.
8
We note that the petitioner testified that Lamontagne never told him
that, by entering guilty pleas to the two larceny charges, he would be
deported, regardless of the length of the sentences.
9
In challenging this finding on appeal, the respondent argues that ‘‘Lamon-
tagne did not testify that he believed that the 364 day sentences would
render the petitioner not deportable. Rather, he testified that he understood
that, by pleading guilty to the two larceny counts, the petitioner still would
be subject to deportation for having convictions for crimes of moral turpi-
tude, but he would still have a ‘fighting chance.’ . . . The habeas court
apparently did not consider that efforts to avoid having a deportable client
come to the attention of immigration authorities, such as by negotiating a
sentence of less than one year, could ‘help protect’ the petitioner from being
deported, though he would remain deportable.’’ (Citation omitted.) The
testimony before the habeas court from Redman, an immigration expert,
however, demonstrates the inaccuracy in the respondent’s assertion that
Lamontagne’s advice concerning the immigration consequences of the sen-
tences of less than one year that were included in the petitioner’s plea deal
could have given the petitioner a ‘‘fighting chance’’ from being deported.
According to Redman, immigration officials would become aware of the
petitioner as a result of his incarceration, regardless of its length, through
access to criminal databases. Redman also testified that she did not think
it was accurate for counsel to advise a defendant pleading guilty to two
unrelated crimes of moral turpitude that a sentence of less than one year
would have any effect on whether the defendant would come to the attention
of immigration authorities. The court reasonably could have credited
Redman’s testimony in support of its finding that Lamontagne’s assessment
that two sentences of less than one year would give the petitioner a ‘‘fighting
chance’’ to avoid deportation was substantively incorrect.
The respondent also asserts that, ‘‘if Lamontagne advised the petitioner
that pleading guilty to the two larceny charges would render him deportable
for being convicted of crimes of moral turpitude, but that receiving sentences
of less than one year would preclude him from also having aggravated
felonies on his record and could reduce the likelihood of his convictions
coming to the attention of immigration authorities, such advice was reason-
able and, indeed, correct.’’ (Emphasis omitted.) This argument is grounded
in the fact that, under federal immigration law, an aggravated felony includes
‘‘a theft offense (including receipt of stolen property) or burglary offense
for which the term of imprisonment [is] at least one year . . . .’’ 8 U.S.C.
§ 1101 (a) (43) (G) (2012). Moreover, federal law also provides that ‘‘[a]ny
alien who is convicted of an aggravated felony at any time after admission
is deportable.’’ 8 U.S.C. § 1227 (a) (2) (A) (iii) (2012). The problem, however,
is that the respondent’s claim is based on speculation, as there is nothing
in the record, including Lamontagne’s testimony, to suggest that he crafted
the sentences in the plea deal to avoid the petitioner being convicted of
aggravated felonies. Although we recognize that a sentence of less than one
year may improve a person’s chances of avoiding deportation under certain
circumstances, those circumstances were not present here. In the present
case, the petitioner entered guilty pleas to two crimes of moral turpitude,
not arising out of a single scheme of criminal conduct, without knowing
that doing so would automatically render him deportable, and with the belief
that doing so would lessen the chance that his convictions would come to
the attention of immigration authorities. As Redman testified, under these
circumstances, the length of the petitioner’s sentences had no impact what-
soever on whether immigration authorities would initiate deportation pro-
ceedings. The respondent’s argument, therefore, is unavailing.
10
Notably, on appeal, the respondent has not argued that federal law is
unclear on the issue of whether an alien who is convicted of two or more
crimes involving moral turpitude, not arising out of a single scheme of
criminal conduct, is deportable. Instead, in a footnote in his brief, the respon-
dent suggests that it is unclear whether larceny in the sixth degree is a
crime of moral turpitude. Specifically, the respondent argues: ‘‘Because
Lamontagne operated under the belief that the larceny charges were crimes
of moral turpitude, the respondent assumes arguendo that he was obligated
to advise the petitioner in accordance with that belief. This court, however,
has noted that ‘the phrase ‘‘crime involving moral turpitude’’ is notoriously
baffling’ and ‘is perhaps the quintessential example of an ambiguous phrase.’
Georges v. Commissioner of Correction, 203 Conn. App. 639, [648–49, 249
A.3d 355, cert. denied, 336 Conn. 943, 250 A.3d 40 (2021)] . . . . The respon-
dent submits that the habeas court’s finding that it was ‘uncontroverted’
that the petitioner’s larceny convictions would automatically subject him
to mandatory deportation was wide of the mark, in that, absent precedent
finding sixth degree larceny a crime of moral turpitude, an attorney reason-
ably could have found it uncertain whether a conviction therefor would
render a client deportable.’’ (Citation omitted.) This claim fails for two
reasons. First, Redman testified at the habeas trial that, ‘‘when retail theft
is involved, it is presumptively a crime involving moral turpitude.’’ That
testimony was never challenged through cross-examination, and it was not
contradicted by the admission of any other testimony or evidence. Moreover,
the evidence before the court also included the 2014 decision of the immigra-
tion judge who, after examining relevant immigration law on the subject,
concluded that the petitioner had been convicted of two crimes of moral
turpitude, not arising out of a single scheme of criminal conduct. Thus, the
court’s finding in the present case was reasonably based in the evidence
and the plain language of the federal law. Moreover, Lamontagne testified
that he understood that larceny is a crime of moral turpitude and he never
suggested to the habeas court that the petitioner’s conviction of larceny in
the sixth degree did not constitute a crime of moral turpitude, such that
the immigration consequences to the petitioner were unclear or that the
petitioner’s pleas to the two larceny charges did not render him automatically
deportable. Because the claim that larceny in the sixth degree may not
constitute a crime involving moral turpitude, thereby rendering the immigra-
tion consequences for the petitioner’s convictions unclear, was never raised
before, brought to the attention of, or addressed by, the habeas court, and
because the claim has been raised for the first time on appeal, we decline
to address it further. ‘‘ ‘We do not entertain claims not raised before the
habeas court but raised for the first time on appeal.’ . . . Lopez v. Commis-
sioner of Correction, 142 Conn. App. 53, 57 n.2, 64 A.3d 334 (2013); see also
Eubanks v. Commissioner of Correction, 329 Conn. 584, 598, 188 A.3d 702(2018) (appellate review of claims not raised before habeas court would
amount to ambuscade of habeas judge); Walker v. Commissioner of Correc-
tion, 176 Conn. App. 843, 846 n.2, 171 A.3d 525 (2017) (Appellate Court is
not compelled to consider issues neither alleged in habeas petition nor
considered at habeas proceeding); Sewell v. Commissioner of Correction,
168 Conn. App. 735, 736–37 n.2, 147 A.3d 196 (2016) (Appellate Court did
not consider issues not alleged in habeas petition or considered at trial
during habeas proceeding), cert. denied, 324 Conn. 907, 152 A.3d 1245(2017).’’ Coleman v. Commissioner of Correction, 202 Conn. App. 563, 577,
246 A.3d 54, cert. denied, 336 Conn. 922, 246 A.3d 2 (2021).
11
The respondent further takes issue with the habeas court’s statement
that ‘‘[t]he credible evidence shows that the petitioner did not receive accu-
rate advice about [the immigration consequences of his guilty pleas].’’ Specif-
ically, the respondent asserts that, because ‘‘[t]he court did not identify
what credible evidence established that Lamontagne did not provide accu-
rate advice,’’ as a matter of law the court could not have found that the
petitioner proved deficient performance under Budziszewski. The testimony
provided by Lamontagne and Redman, which the court reasonably could
have credited, amply supports the court’s determination that the petitioner
did not receive accurate advice about the automatic deportation conse-
quences of his guilty pleas. Moreover, in its memorandum of decision, the
court specifically ‘‘credit[ed] the petitioner’s testimony that he sought to
avoid deportation and that he understood his guilty pleas would not trigger
automatic consequences.’’ The petitioner also testified that Lamontagne
never told him that, by pleading guilty to the two larceny charges, he would
be deported, regardless of the length of his sentences.
12
Even if we assume that Lamontagne correctly advised the petitioner
during that unclear conversation and construe Lamontagne’s advice concern-
ing the 364 day sentences as advice regarding enforcement, we conclude
that the result would remain the same, as Lamontagne’s suggestion to the
petitioner that the plea deal gave him a ‘‘fighting chance’’ of avoiding the
detection of immigration authorities effectively negated any correct advice
he may have given regarding the requirements of federal law for a person
convicted of two unrelated crimes of moral turpitude. See Budziszewski
v. Commissioner of Correction, supra, 322 Conn. 515–16.
13
The respondent argues in his principal appellate brief that ‘‘Padilla does
not require an attorney to advise that deportation will be ‘automatic’ or
‘mandatory’ as a consequence of a plea. Rather, so long as counsel advises
that the plea will make the client deportable but that the client may escape
enforcement, counsel performs reasonably.’’ The respondent further argues
in his appellate reply brief that Lamontagne’s ‘‘advice regarding the likeli-
hood of enforcement did not negate advice that pleading guilty would render
the petitioner deportable because, regardless of whether authorities pursued
enforcement, the petitioner would remain deportable.’’ We disagree with
both arguments. As we stated previously in this opinion, our Supreme Court
explained in Budziszewski that, although counsel is not required to provide
advice regarding the likelihood of enforcement, when counsel chooses to do
so, ‘‘counsel must still impress upon the client that once federal authorities
apprehend the client, deportation will be practically inevitable under federal
law.’’ Budziszewski v. Commissioner of Correction, supra, 322 Conn. 515.
Additionally, when counsel gives advice expressing doubt about the likeli-
hood of enforcement, courts must ‘‘look to the totality of the immigration
advice given by counsel to determine whether counsel’s enforcement advice
effectively negated the import of counsel’s advice required by Padilla about
the meaning of federal law.’’ Id., 516. It necessarily follows that counsel
cannot advise a client that a guilty plea will subject the client to mandatory
deportation and then suggest to the client that there is nothing to worry
about because enforcement will be unlikely. Such an advisement would run
counter to the safeguards set in place by Padilla and Budziszewski.