Barlow v. Commissioner of Correction

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ALISON BARLOW v. COMMISSIONER
OF CORRECTION
(SC 20591)
Robinson, C. J., and McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
The petitioner, who had been convicted of attempt to commit murder, among
other crimes, sought a writ of habeas corpus, claiming that his trial
counsel, M, had provided ineffective assistance during pretrial plea nego-
tiations. During those negotiations, the trial court offered the petitioner
a plea deal of fifteen years of incarceration, execution suspended after
nine years, but the petitioner, who had indicated his preference for a six
year sentence, rejected that offer. After a jury trial, at which substantial
evidence was presented in support of the petitioner’s conviction, the
petitioner was convicted and sentenced to thirty-five years of incarcera-
tion. At the petitioner’s first habeas trial, the court rejected the petition-
er’s ineffective assistance claim, but the Appellate Court reversed the
habeas court’s judgment, concluding that M’s performance was deficient
insofar as she did not adequately advise the petitioner regarding the
trial court’s nine year plea offer. The Appellate Court remanded the
case for a new habeas trial on the issue of whether the petitioner had
been prejudiced by M’s deficient performance. After that new trial, the
habeas court, crediting the petitioner’s testimony at the new habeas
trial, as well as the testimony of a legal expert regarding the advice
reasonably competent counsel would have provided, found that the
petitioner likely would have accepted the nine year offer if M had ade-
quately advised him and thus concluded that the petitioner met his
burden of establishing prejudice. Accordingly, the habeas court rendered
judgment granting the petition. On the granting of certification, the
respondent, the Commissioner of Correction, appealed. Held that the
habeas court correctly determined that the petitioner had met his burden
of establishing prejudice as a result of M’s ineffective assistance: the
habeas court’s finding that the petitioner likely would have accepted
the trial court’s nine year plea offer if M had adequately advised him
was supported by the record in view of the petitioner’s testimony at
the habeas trial, the strength of the state’s criminal case against the
petitioner, his apparent willingness to plead guilty, the generosity of
the plea offer in comparison to the thirty-five year sentence ultimately
imposed, and the relatively minor difference in prison time between the
plea offer and the petitioner’s counterproposal; moreover, this court
rejected the respondent’s claim that the habeas court had improperly
relied on the Appellate Court’s conclusion that M’s performance was
deficient, as the Appellate Court’s decision, which was issued nearly
eight years beforehand, constituted a final determination of the legal
issues presented on appeal, including the issue of whether M’s perfor-
mance was deficient, and, because the respondent never sought certifica-
tion to appeal from the Appellate Court’s judgment, the respondent
could not relitigate the legal issues decided by that court; furthermore,
the record contained sufficient contemporaneous evidence from the
time of the underlying plea negotiations to substantiate the petitioner’s
after-the-fact testimony that he would have accepted the plea offer but
for M’s deficient performance.
Argued November 19, 2021—officially released May 17, 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, Sferrazza, J.; judgment
dismissing the first count of the petition and denying
the second count of the petition, from which the peti-
tioner, on the granting of certification, appealed to the
Appellate Court, Beach, Bear and Sheldon, Js., which
reversed in part the judgment of the habeas court and
remanded the case for further proceedings; thereafter,
the court, Sferrazza, J., denied the petition and ren-
dered judgment thereon, from which the petitioner, on
the granting of certification, appealed to the Appellate
Court, Beach, Keller and West, Js., which reversed the
judgment of the habeas court and remanded the case
for further proceedings, and the respondent, on the
granting of certification, appealed to this court, which
dismissed the appeal; subsequently, the case on remand
was tried to the court, Bhatt, J.; judgment granting the
petition for a writ of habeas corpus, from which the
respondent, on the granting of certification, appealed.
Affirmed.
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were Maureen T. Platt, state’s
attorney, and Eva Lenczewski, former supervisory
assistant state’s attorney, for the appellant (respon-
dent).
Naomi T. Fetterman, assigned counsel, for the appel-
lee (petitioner).
Opinion
ECKER, J. The habeas court granted the petition for
a writ of habeas corpus filed by the petitioner, Alison
Barlow, after determining that the petitioner had suf-
fered prejudice as a result of the ineffective assistance
rendered by his trial counsel, who failed to provide
the petitioner with professional advice and assistance
during pretrial plea negotiations. The respondent, the
Commissioner of Correction, appeals from the judg-
ment of the habeas court, claiming that the habeas court
improperly found that it was reasonably probable that
the petitioner would have accepted the trial court’s
pretrial plea offer but for the ineffective assistance of
his trial counsel. We affirm the judgment of the
habeas court.
The record reveals the following relevant facts and
procedural history. In 1997, the petitioner was charged
with attempt to commit murder in violation of General
Statutes (Rev. to 1997) § 53a-54a and General Statutes
§ 53a-49 (a) (2), conspiracy to commit murder in viola-
tion of General Statutes (Rev. to 1997) § 53a-54a and
General Statutes § 53a-48 (a), two counts of assault in
the first degree in violation of General Statutes (Rev.
to 1997) § 53a-59 (a) (1), and alteration of a firearm
identification number in violation of General Statutes
(Rev. to 1997) § 29-36. Prior to trial, the state offered the
petitioner a plea deal of eighteen years of incarceration,
execution suspended after fourteen years. The trial
court, Damiani, J., offered the petitioner a plea deal
of fifteen years of incarceration, execution suspended
after nine years. On April 21, 1997, the trial court con-
ducted a brief, on-the-record proceeding, at which it
memorialized the state’s offer, the trial court’s offer,
and the petitioner’s preference for ‘‘something after six
years.’’ The court also informed the petitioner at that
time that the plea deal was available for one day only,
after which his case would be placed on the trial list.
The petitioner did not accept the trial court’s pretrial
plea offer.
The petitioner subsequently asked his trial counsel
to negotiate a plea deal that would require him to serve
only six or seven years of incarceration. In the mean-
time, notwithstanding the initial characterization of the
trial court’s plea deal as a one day only offer, the offer of
nine years to serve remained in effect for approximately
one year, until the start of trial. Prior to the start of
trial, Judge Damiani repeatedly asked trial counsel if
the petitioner intended to accept the court’s offer and
plead guilty, but the petitioner did not accept the nine
year offer.
During the petitioner’s criminal trial, the jury was
presented with substantial evidence to support a con-
viction. Demetrice Chapman, the petitioner’s girlfriend,
and Kyle Dunn, the petitioner’s friend, gave statements
to the police indicating that the petitioner was in the
car involved in the drive-by shooting of the victim. The
state’s forensic expert testified that the shell casings
found at the scene of the crime matched the pistol
discovered in the petitioner’s car. Furthermore, as accu-
rately described by the habeas court, ‘‘[the petitioner’s]
codefendants, Miguel Torres and Jose Rodriguez, gave
statements to the police implicating themselves and [the
petitioner]. These statements were internally consistent
and also consistent with the physical evidence and the
state’s theory of the case. . . . Both [codefendants]
cooperated with the prosecution in [the petitioner’s]
case but ultimately were not called to testify at [his]
trial.’’ The jury found the petitioner guilty of the crimes
charged, and the trial court, Gill, J., sentenced him to
thirty-five years of incarceration. The Appellate Court
affirmed the petitioner’s judgment of conviction. See
State v. Barlow, 70 Conn. App. 232, 249, 797 A.2d 605,
cert. denied, 261 Conn. 929, 806 A.2d 1067 (2002).
The petitioner filed two unsuccessful habeas peti-
tions. At issue in the present appeal is the petitioner’s
third habeas petition, which alleges that his trial coun-
sel—then Attorney, now Judge, Sheridan L. Moore—
rendered ineffective assistance in connection with the
pretrial plea negotiations.
The habeas court, Sferrazza, J., held a trial on the
petitioner’s third habeas petition, at which trial counsel
testified that she refrained from giving the petitioner
any advice regarding the trial court’s pretrial plea offer.
Trial counsel stated that her practice was to inform
defendants about the facts of the offer but not to recom-
mend a specific course of action or to assist a petitioner
in weighing the options. Trial counsel could not recall
whether the petitioner ever told her directly that he
would not accept a plea offer, but she explained that
she would not have gone to trial unless the petitioner
had rejected the trial court’s offer. The petitioner testi-
fied that trial counsel did not advise him of the risks
and benefits of accepting any of the plea bargain offers,
the strengths and weaknesses of the state’s case, or
any potential defense strategies. He also testified that
he would have pleaded guilty and accepted the trial
court’s offer instead of going to trial if his trial counsel
had advised him that his six year counterproposal was
not reasonable.
Judge Sferrazza dismissed in part and denied in part
the petition after finding that trial counsel’s advice did
not amount to ineffective assistance of counsel. The
Appellate Court reversed in part the judgment of the
habeas court, concluding that trial counsel’s ‘‘perfor-
mance was deficient because she did not give the peti-
tioner her professional advice and assistance concern-
ing, and her evaluation of, the trial court’s plea offer.’’
Barlow v. Commissioner of Correction, 150 Conn. App.
781, 802, 93 A.3d 165 (2014). Because the habeas court
made no findings concerning prejudice under the sec-
ond prong of Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the Appellate
Court remanded the case to the habeas court ‘‘to deter-
mine whether it is reasonably likely that the petitioner
would have accepted the [plea] offer had he received
adequate advice from [trial counsel].’’ Barlow v. Com-
missioner of Correction, supra, 804.
On remand, Judge Sferrazza did not conduct an evi-
dentiary hearing but, instead, concluded, on the basis
of the evidence adduced at the prior habeas trial, that
the petitioner had failed to prove prejudice. On the
granting of certification, the petitioner appealed to the
Appellate Court, which reversed the judgment of the
habeas court on the grounds that Judge Sferrazza was
statutorily prohibited from trying the case on remand
following reversal and that a new habeas trial before
a different judge was required. See Barlow v. Commis-
sioner of Correction, 166 Conn. App. 408, 421, 431, 142
A.3d 290 (2016), appeal dismissed, 328 Conn. 610, 182
A.3d 78 (2018).
Judge Bhatt presided over the new habeas trial on
the issue of prejudice. The evidence presented at this
trial included the transcript of the first habeas trial
before Judge Sferrazza, the testimony of a legal expert,
Attorney Brian Carlow, and the testimony of the peti-
tioner. Carlow testified that competent counsel would
have advised the petitioner that the case against him
was strong and that the trial court’s offer of nine years
of incarceration was extremely favorable given the lack
of any viable defense and the petitioner’s criminal record.
According to Carlow, trial counsel should have provided
the petitioner with additional context to explain to him
that an offer of ‘‘six or seven [years was] not on the table,’’
that ‘‘Judge Damiani had settled in on nine years,’’ and
that, ‘‘[u]nless something new, unless something could
be shown to him that he didn’t already know, he was not
going to reduce that nine years.’’ Additionally, Carlow
opined that trial counsel should have explained to the
petitioner that, if he proceeded to trial, he ran ‘‘an
exceedingly strong risk of [being sentenced to] multi-
ples of those nine years,’’ for example, ‘‘a sentence in
the thirties or worse.’’ Judge Bhatt determined that Car-
low testified credibly about the advice a reasonably
competent criminal defense attorney would have given
a defendant in the petitioner’s position. Judge Bhatt also
found that ‘‘[a]t no time did trial counsel tell [the peti-
tioner] that his proposal for six or seven years’ incarcer-
ation was not going to be accepted by the court, [or]
that, in light of all the evidence the state possessed, the
offer of nine years was a favorable offer. . . . As trial
counsel testified, and the Appellate Court determined,
trial counsel provided no assistance, advice or guidance
to [the petitioner] regarding his likelihood of success
at trial or the likely potential sentence he faced if he
[would have gone] to trial and whether accepting the
court indicated sentence [would have been] in his best
interest.’’ (Citation omitted.)
With respect to the petitioner’s testimony, Judge
Bhatt found that the petitioner ‘‘testified credibly that,
had counsel discussed the strengths and weaknesses
of the case against him and given him advice concerning
the reasonableness of the nine year offer, he would
have accepted it. Had he been advised that his six year
counterproposal was not feasible and that the court’s
offer was reasonable, he would have accepted the
court’s offer.’’ Judge Bhatt further credited the petition-
er’s testimony that, if trial counsel had informed him
that his codefendants’ statements to the police could
be introduced as substantive evidence and used against
him, ‘‘he would have realized the inevitability of his
conviction and accepted the nine year offer.’’ Accord-
ingly, Judge Bhatt concluded that the petitioner had
been prejudiced by the ineffective assistance rendered
by trial counsel because there was a reasonable proba-
bility that the petitioner ‘‘would have accepted the court
indicated sentence of nine years had he been adequately
advised by trial counsel and [because] Judge Damiani
would have accepted the plea.’’ Judge Bhatt granted
the petitioner’s petition for a writ of habeas corpus and
returned the case to the trial court for a determination
of the appropriate remedy.
The respondent filed a petition for certification to
appeal, which the habeas court granted. Thereafter, the
respondent appealed from the judgment of the habeas
court to the Appellate Court, and we transferred the
appeal to this court pursuant to General Statutes § 51-
199 (c) and Practice Book § 65-1.
On appeal, the respondent argues that the habeas
court erred in ‘‘uncritically accepting’’ the Appellate
Court’s determination that trial counsel had rendered
ineffective assistance and in failing to give prominence
to contemporaneous evidence ‘‘that revealed that, even
in the absence of [trial counsel’s] explicit advice, there
were other ways the petitioner was apprised of informa-
tion that enabled him, on his own, to make an informed
judgment about what plea to enter.’’ The petitioner
responds that the habeas court properly found that, but
for trial counsel’s deficient performance, it is reason-
ably probable that the petitioner would have accepted
the trial court’s plea offer. We agree with the petitioner.
‘‘Under the sixth amendment to the United States
constitution, a criminal defendant is guaranteed the
right to the effective assistance of counsel.’’ Skakel v.
Commissioner of Correction, 329 Conn. 1, 29, 188 A.3d
1 (2018), cert. denied, U.S. , 139 S. Ct. 788,
202 L. Ed. 2d 569 (2019). ‘‘Given the centrality of plea
bargaining to the efficient administration of the criminal
justice system, defense counsel have responsibilities in
the plea bargain process, responsibilities that must be
met to render the adequate assistance of counsel that
the [s]ixth [a]mendment [to the United States constitu-
tion] requires in the criminal process at critical stages.
Because ours is for the most part a system of pleas,
not a system of trials . . . it is insufficient simply to
point to the guarantee of a fair trial as a backstop that
inoculates any errors in the pretrial process. . . . In
today’s criminal justice system, therefore, the negotia-
tion of a plea bargain, rather than the unfolding of a
trial, is almost always the critical point for a defendant.’’
(Citations omitted; internal quotation marks omitted.)
Moore v. Commissioner of Correction, 338 Conn. 330,
339–40, 258 A.3d 40 (2021). To prevail on a claim of
ineffective assistance of counsel, a habeas petitioner
must satisfy the two-pronged test set forth in Strickland
v. Washington, supra, 466 U.S. 687, by ‘‘demonstrating
that (1) counsel’s representation 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 pro-
ceedings would have been different had it not been for
the deficient performance.’’ (Internal quotation marks
omitted.) Thiersaint v. Commissioner of Correction,
316 Conn. 89, 101, 111 A.3d 829 (2015).
The sole issue in the present appeal is the whether the
petitioner satisfied his burden of establishing prejudice
under the second prong of Strickland. ‘‘[T]o satisfy
the prejudice prong of the Strickland test when the
ineffective advice of counsel has led a defendant to
reject a plea offer, the habeas petitioner ‘must show
[1] that but for the ineffective advice of counsel there
is a reasonable probability that the plea offer would
have been presented to the court (i.e., that the defen-
dant would have accepted the plea and the prosecution
would not have withdrawn it in light of intervening
circumstances), [2] that the court would have accepted
its terms, and [3] that the conviction or sentence, or
both, under the offer’s terms would have been less
severe than under the judgment and sentence that in
fact were imposed.’ ’’ Ebron v. Commissioner of Cor-
rection, 307 Conn. 342, 352, 53 A.3d 983 (2012) (quoting
Lafler v. Cooper, 566 U.S. 156, 164, 132 S. Ct. 1376, 182
L. Ed. 2d 398 (2012)), cert. denied sub nom. Arnone v.
Ebron, 569 U.S. 913, 133 S. Ct. 1726, 185 L. Ed. 2d
802 (2013). These factors focus ‘‘on whether counsel’s
constitutionally ineffective performance affected the
outcome of the plea process’’; Hill v. Lockhart, 474 U.S.
52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985); and the
ultimate conviction or sentence imposed. See Missouri
v. Frye, 566 U.S. 134, 147, 132 S. Ct. 1399, 182 L. Ed.
2d 379 (2012) (‘‘[t]o show prejudice from ineffective
assistance of counsel [when] a plea offer has lapsed or
been rejected because of counsel’s deficient perfor-
mance . . . it is necessary to show a reasonable proba-
bility that the end result of the criminal process would
have been more favorable by reason of a plea to a lesser
charge or a sentence of less prison time’’).
The ultimate question of whether a habeas petition-
er’s sixth amendment rights have been violated ‘‘is a
mixed determination of law and fact that requires the
application of legal principles to the historical facts of
[the] case. . . . As such, that question requires plenary
review by this court unfettered by the clearly erroneous
standard.’’ (Internal quotation marks omitted.) Lapointe
v. Commissioner of Correction, 316 Conn. 225, 265, 112
A.3d 1 (2015); see Strickland v. Washington, supra, 466
U.S. 698 (‘‘[the] prejudice [component] of the ineffec-
tiveness inquiry [is a] mixed [question] of law and fact’’).
In the context of rejected plea offers, however, the
specific underlying question of whether there was a
reasonable probability that a habeas petitioner would
have accepted a plea offer but for the deficient perfor-
mance of counsel is one of fact, which will not be
disturbed on appeal unless clearly erroneous. See, e.g.,
United States v. Grammas, 376 F.3d 433, 438 (5th Cir.
2004) (‘‘Whether it is reasonably probable that [the peti-
tioner’s] decision to plead guilty would have been differ-
ent had he been properly counseled as to his potential
punishment is a question of fact. Such a determination
should be left to the [habeas] court.’’); Cullen v. United
States, 194 F.3d 401, 405 (2d Cir. 1999) (‘‘the determina-
tion of the likelihood that [the petitioner] would have
accepted the plea bargain if he had been fully informed
of its terms and accurately advised of the likely sentenc-
ing ranges under the plea bargain and upon conviction
after trial was, like all predictions of what might have
been, a factual issue, albeit a hypothetical one’’); see
also Ebron v. Commissioner of Correction, supra, 307
Conn. 351 (‘‘[t]he habeas court is afforded broad discre-
tion in making its factual findings, and those findings
will not be disturbed unless they are clearly erroneous’’
(internal quotation marks omitted)).
With the foregoing principles in mind, we address
whether the habeas court’s factual finding that the peti-
tioner likely ‘‘would have accepted the court indicated
sentence of nine years had he been adequately advised
by trial counsel’’ was clearly erroneous. ‘‘A finding of
fact is clearly erroneous when there is no evidence in
the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed. . . . Because
it is the [habeas] court’s function to weigh the evidence
and determine credibility, we give great deference to
its findings. . . . In reviewing factual findings, [w]e do
not examine the record to determine whether the
[court] could have reached a conclusion other than the
one reached. . . . Instead, we make every reasonable
presumption . . . in favor of the [habeas] court’s rul-
ing.’’ (Internal quotation marks omitted.) Dickinson v.
Mullaney, 284 Conn. 673, 678, 937 A.2d 667 (2007). The
habeas court had the opportunity to observe firsthand
the ‘‘conduct, demeanor and attitude’’ of the witnesses,
and, therefore, it ‘‘is the sole arbiter of the credibility of
witnesses and the weight to be given to their testimony.’’
(Internal quotation marks omitted.) Taylor v. Commis-
sioner of Correction, 324 Conn. 631, 643–44, 153 A.3d
1264 (2017).
At the habeas trial, the petitioner testified that, if
his trial counsel had rendered effective assistance by
discussing the strengths and weaknesses of the state’s
case against him, the reasonableness of the trial court’s
nine year offer, and the unreasonableness of his six
year counterproposal, he would have accepted the trial
court’s plea offer. The habeas court found the petition-
er’s testimony to be credible. The habeas court pointed
out that the petitioner ‘‘had a criminal record and had
been previously incarcerated, so avoiding further con-
victions or having to be incarcerated again was not a
factor in determining whether to accept or reject an
offer.’’ Additionally, acceptance of the trial court’s plea
offer ‘‘would have been the rational course of action’’
because ‘‘[t]he evidence against [the petitioner] was
substantial, and there was a strong possibility that he
would be convicted after trial and receive a sentence
significantly [harsher] than that contemplated by either
the state’s offer or the court indicated sentence.’’ The
petitioner’s position during plea negotiations ‘‘demon-
strated that he was willing to plead guilty and [to] accept
responsibility in exchange for an agreeable sentence,’’
and the difference between the trial court’s nine year
offer and the petitioner’s six year counterproposal was
‘‘hardly a wide gulf . . . especially in light of the signifi-
cant exposure in excess of eighty-five years faced by
[the petitioner].’’ The habeas court was ‘‘convinced that
had [the petitioner] been advised as he was entitled to
be, he would have bridged that gulf’’ and accepted the
trial court’s plea offer.
The habeas court issued a thorough memorandum of
decision, and we may ‘‘presume that the [habeas] court
acted properly and considered all the evidence.’’ (Inter-
nal quotation marks omitted.) Gaines v. Commissioner
of Correction, 306 Conn. 664, 690, 51 A.3d 948 (2012);
see Sanchez v. Commissioner of Correction, 314 Conn.
585, 611 n.16, 103 A.3d 954 (2014) (‘‘we . . . may pre-
sume, in the absence of any indication to the contrary,
that the court considered all of the evidence when
assessing [a witness’] credibility’’). Although there was
conflicting evidence in the record; see footnote 3 of
this opinion; the habeas court, as the trier of fact, was
‘‘the sole arbiter of the credibility of the witnesses and
the weight to be given specific testimony. . . . [When]
there is conflicting evidence . . . we do not retry the
facts or pass on the credibility of the witnesses. . . .
The probative force of conflicting evidence is for the
trier to determine.’’ (Citation omitted; internal quotation
marks omitted.) State v. James, 237 Conn. 390, 407, 678
A.2d 1338 (1996); see Cruz v. Commissioner of Correc-
tion, 206 Conn. App. 17, 26, 257 A.3d 399 (‘‘[a]lthough
the petitioner testified that he would have gone to trial
but for [trial counsel’s] advice, the habeas court, as the
sole arbiter of the credibility of witnesses and the
weight to be given to their testimony, was entitled to
reject his testimony in light of the other evidence pre-
sented during trial’’), cert. denied, 340 Conn. 913, 265
A.3d 926 (2021); Lebron v. Commissioner of Correction,
204 Conn. App. 44, 53, 250 A.3d 44 (petitioner failed to
prove prejudice in part because ‘‘the court clearly did
not credit the petitioner’s testimony that he would not
have pleaded guilty had he been advised properly [by
trial counsel]’’), cert. denied, 336 Conn. 948, 250 A.3d
695 (2021). In light of the petitioner’s testimony, the
strength of the state’s case, the petitioner’s apparent
willingness to plead guilty, the generosity of the plea
offer in comparison to the thirty-five year sentence ulti-
mately imposed, and the relatively minor difference
between the trial court’s plea offer and the petitioner’s
counterproposal, we cannot conclude that the habeas
court’s factual finding that the petitioner likely would
have accepted the plea but for the ineffective assistance
of his trial counsel is unsupported by the record or
clearly mistaken.
The respondent argues that the habeas court’s factual
finding is flawed in two respects. First, the respondent
contends that the habeas court improperly relied on
the Appellate Court’s legal conclusion that trial counsel
rendered deficient performance, arguing that Barlow
v. Commissioner of Correction, supra, 150 Conn. App.
781, was wrongly decided and that he ‘‘has not yet
been able to contest [the Appellate Court’s] deficient
performance determination’’ due to ‘‘the absence of a
final judgment.’’ Second, the respondent contends that
the habeas court failed to comply with the dictates of
Lee v. United States, U.S. , 137 S. Ct. 1958, 1967,
198 L. Ed. 2d 476 (2017), which requires that ‘‘post hoc
assertions from a defendant about how he would have
pleaded but for his attorney’s deficiencies’’ must be
substantiated by ‘‘contemporaneous evidence,’’ mean-
ing evidence from the time of the underlying plea negoti-
ations, to support the petitioner’s after-the-fact testi-
mony. Both arguments lack merit.
The Appellate Court’s decision in Barlow v. Commis-
sioner of Correction, supra, 150 Conn. App. 781, was
issued nearly eight years ago, in 2014. The respondent
never filed a petition for certification to appeal from
the Appellate Court’s judgment seeking review of the
Appellate Court’s legal conclusion that trial counsel’s
performance was deficient. See General Statutes § 51-
197f; Practice Book § 84-1.1 As we explained in In re
Judicial Inquiry No. 2005-02, 293 Conn. 247, 977 A.2d
166 (2009), there is a distinction between the final judg-
ment of a trial court and the final determination of an
appeal by the Appellate Court under § 51-197f. Specifi-
cally, ‘‘ ‘the final determination of an appeal rule looks
at the finality of the appeal, not at the finality of the
underlying judgment. Thus, even though a remand by
the Appellate Court may vitiate the finality of the trial
court’s judgment, the appeal to the Appellate Court has
been finally determined because that court has com-
pleted its work.’ ’’ Id., 256, quoting C. Tait & E. Prescott,
Connecticut Appellate Practice and Procedure (3d Ed.
2000) § 7.2, p. 265; see Gold v. East Haddam, 290 Conn.
668, 676, 966 A.2d 684 (2009) (holding that Appellate
Court’s reversal of trial court’s grant of summary judg-
ment and remand for further proceedings ‘‘was a final
determination of the appeal’’ under § 51-197f). A ‘‘final
determination exists . . . under § 51-197f . . . once
the Appellate Court conclusively resolves the issue or
issues before it and disposes of the cause such that no
further action is necessary on its part. In other words,
the critical factor . . . is whether the decision of the
Appellate Court represents a final determination.’’
(Emphasis in original.) In re Judicial Inquiry No. 2005-
02, supra, 257.
Our review of the appellate record reveals that the
Appellate Court’s judgment in Barlow v. Commissioner
of Correction, supra, 150 Conn. App. 781, was a final
determination of the legal issues presented on appeal,
including, in particular, the issue of deficient perfor-
mance. Although the Appellate Court reversed the judg-
ment of the habeas court and remanded the case to
that court for further proceedings on the issue of preju-
dice, the Appellate Court had completed its work in
connection with the legal issues raised at that time, the
appeal was terminated, and ‘‘[n]othing further remained
for the Appellate Court to do.’’ In re Judicial Inquiry
No. 2005-02, supra, 293 Conn. 257. Because the respon-
dent failed to file a timely petition for certification to
appeal from the Appellate Court’s judgment, we reject
the respondent’s attempt to relitigate the legal issues
decided by the Appellate Court.2
The respondent next claims that the habeas court
failed to incorporate sufficient contemporaneous evi-
dence into its prejudice analysis, in contravention of
the holding of the United States Supreme Court in Lee
v. United States, supra, 137 S. Ct. 1967. The respondent
acknowledges that the habeas court properly consid-
ered some contemporaneous evidence, such as the gen-
erosity of the plea offer and the strength of the state’s
case, but argues that conflicting contemporaneous evi-
dence ‘‘predominates over [the habeas court’s] ‘post
hoc’ credibility determination . . . .’’3 The petitioner
responds that Lee’s contemporaneous evidence require-
ment is inapplicable to the present case because it
applies only to accepted plea offers, not rejected plea
offers. When the ineffective assistance of counsel has
led a petitioner to reject a plea offer, the petitioner
argues that the applicable standard for demonstrating
prejudice is that set forth in Missouri v. Frye, supra,566 U.S. 134, and Lafler v. Cooper, supra, 566 U.S. 156,
not Lee.
In Lee, the petitioner, Jae Lee, pleaded guilty to a
crime that subjected him to mandatory deportation on
the basis of his attorney’s wrongful advice that, if he
pleaded guilty, he would not be deported. See Lee v.
United States, supra, 137 S. Ct. 1962. On appeal, it was
undisputed that Lee’s counsel was ineffective and that
‘‘deportation was the determinative issue in Lee’s deci-
sion whether to accept the plea deal.’’ (Internal quota-
tion marks omitted.) Id., 1967. The issue was whether
Lee could demonstrate prejudice ‘‘[i]n light of the over-
whelming evidence of Lee’s guilt’’ and the probability
that he would have ‘‘been found guilty and received a
significantly longer prison sentence, and subsequent
deportation, had he gone to trial.’’ (Internal quotation
marks omitted.) Id., 1964.
The United States Supreme Court held that Lee had
fulfilled his burden of demonstrating prejudice because
of ‘‘the paramount importance that Lee placed on
avoiding deportation.’’ Id., 1968. The evidence demon-
strated that Lee ‘‘would have rejected any plea leading
to deportation—even if it shaved off prison time—in
favor of throwing a ‘Hail Mary’ at trial.’’ Id., 1967. The
court emphasized, however, that ‘‘[s]urmounting Strick-
land’s high bar is never an easy task . . . and the
strong societal interest in finality has special force with
respect to convictions based on guilty pleas. . . . Courts
should not upset a plea solely because of post hoc
assertions from a defendant about how he would have
pleaded but for his attorney’s deficiencies. Judges should
instead look to contemporaneous evidence to substanti-
ate a defendant’s expressed preferences.’’ (Citations
omitted; internal quotation marks omitted.) Id.
Justice Clarence Thomas authored a dissenting opin-
ion, in which he relied heavily on Missouri v. Frye,
supra, 566 U.S. 134, and Lafler v. Cooper, supra, 566
U.S. 156, to support his view that a petitioner who has
received the benefit of a guilty plea must demonstrate
‘‘not only that he would have [rejected the plea and]
gone to trial,’’ but also that ‘‘he would likely have
obtained a more favorable result in the end,’’ i.e., that
he would have been acquitted or sentenced to a shorter
period of incarceration. Lee v. United States, supra, 137
S. Ct. 1970–71 (Thomas, J., dissenting). Applying that
standard, Justice Thomas concluded that ‘‘a reasonable
court or jury applying the law to the facts of [Lee’s]
case’’ would have found Lee guilty and that ‘‘a higher
prison sentence’’ would have been imposed. Id., 1974
(Thomas, J., dissenting). Because Lee ‘‘would have suf-
fered the same deportation consequences regardless of
whether he accepted a plea or went to trial,’’ Justice
Thomas found the evidence of prejudice to be insuffi-
cient. Id.
The majority responded that Justice Thomas’ reliance
on Frye and Lafler was misplaced because both of those
‘‘cases involved defendants who alleged that, but for
their [attorneys’] incompetence, they would have accepted
a plea deal—not . . . that they would have rejected a
plea.’’ (Emphasis in original.) Id., 1965 n.1. The majority
reasoned that ‘‘Frye and Lafler articulated a different
way to show prejudice, suited to the context of pleas
not accepted, not an additional element’’ to establish
prejudice. (Emphasis in original.) Id. According to the
majority, ‘‘[t]he issue [in the two different scenarios] is
how the required prejudice may be shown.’’ Id., 1966 n.1.
In light of the court’s emphasis in Lee on the differ-
ence between accepted and rejected pleas in terms
of how prejudice may be shown, the parties dispute
whether the admonition in Lee regarding the need for
‘‘contemporaneous evidence to substantiate a defen-
dant’s expressed preferences’’ applies to habeas claims
involving rejected plea offers under Frye and Lafler.
Id., 1967. Our research reveals that the federal courts
have arrived at conflicting conclusions on this issue.
Compare Anaya v. Lumpkin, 976 F.3d 545, 555 (5th
Cir. 2020) (declining to ‘‘export the Lee standard—the
need for contemporaneous evidence’’—to rejected
guilty plea offers, which are governed by the standards
articulated in Frye and Lafler), cert. denied, U.S. ,
141 S. Ct. 2703, 210 L. Ed. 2d 872 (2021), with United
States v. Knight, 981 F.3d 1095, 1102 (D.C. Cir. 2020)
(applying Lee’s contemporaneous evidence standard to
rejected plea offers). We need not decide whether Lee’s
contemporaneous evidence requirement applies to
rejected plea offers because, even if it does, the record
in the present case contains sufficient contemporane-
ous evidence to substantiate the petitioner’s after-the-
fact testimony that he would have accepted the plea
deal but for his attorney’s deficient performance.
As the United States Court of Appeals for the District
of Columbia Circuit observed in Knight, ‘‘ ‘[t]he [United
States] Supreme Court did not suggest in Lee that a
defendant must hypothesize his counsel’s advice might
be erroneous and state contemporaneously that his plea
decision would differ if that were so.’ ’’ United States
v. Knight, supra, 981 F.3d 1106, quoting United States
v. Aguiar, 894 F.3d 351, 362 (D.C. Cir. 2018). In other
words, even assuming that Lee’s contemporaneous evi-
dence requirement applies to both accepted and
rejected pleas, such evidence is not limited to a petition-
er’s statements (if any) at the time he accepts or rejects
the plea offer. See Lee v. United States, supra, 137
S. Ct. 1967 (court must focus on ‘‘what an individual
defendant would have done’’ and that individual defen-
dant’s ‘‘decisionmaking’’); see also United States v.
Akande, 956 F.3d 257, 264 (4th Cir. 2020) (considering
counsel’s statements regarding petitioner’s priorities
during plea process); United States v. Frazier, 805 Fed.
Appx. 15, 17 (2d Cir. 2020) (considering petitioner’s
statements at sentencing). In addition to the petitioner’s
prior statements, contemporaneous evidence also
includes evidence of (1) the generosity of the plea offer
compared to the ultimate sentence imposed; see United
States v. Knight, supra, 1103; (2) the petitioner’s willing-
ness to plead guilty; see id., 1104; and (3) the strength
of the state’s case. See United States v. Hobbs, 953 F.3d
853, 858 (6th Cir. 2020), cert. denied, U.S. , 141
S. Ct. 2791, 210 L. Ed. 2d 926 (2021); Young v. Spinner,
873 F.3d 282, 287 (5th Cir. 2017).4
In some cases, the available contemporaneous evi-
dence might be equivocal, but ‘‘the absence of unequiv-
ocal contemporaneous evidence . . . [does not] mean
that [a petitioner] cannot show a reasonable probability
that he would have accepted the plea offer if he had
been provided the effective assistance of counsel.’’
(Emphasis added.) United States v. Knight, supra, 981
F.3d 1106. This is because a habeas petitioner is ‘‘not
required to show either that he wanted to accept the
plea offer but was dissuaded by counsel, or that he
certainly would have accepted the offer but for coun-
sel’s ineffectiveness. Instead, he need[s] to show only
that there was a reasonable probability that he would
have accepted the plea offer were it not for his counsel’s
inadequate assistance.’’ (Emphasis added.) Id.Our review of the record reveals that the petitioner’s
testimony as to how he would have pleaded but for the
deficient performance of his trial counsel was substanti-
ated by contemporaneous evidence. Specifically, the
generosity of the trial court’s nine year plea offer com-
pared to the petitioner’s thirty-five year sentence, the
petitioner’s willingness to plead guilty to an agreeable
sentence, the relatively minor difference between the
trial court’s plea offer and the petitioner’s counterpro-
posal, and the strength of the state’s case all corrobo-
rated the petitioner’s post hoc assertions that he would
not have rejected the trial court’s plea offer if he had
received adequate advice and professional assistance
from his trial counsel. See id., 1103 (recognizing ‘‘that
a disparity in sentencing exposure may suffice to show
prejudice under the second prong of Strickland’’);
Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003)
(‘‘a significant sentencing disparity in combination with
[a] defendant’s statement of his intention [are] sufficient
to support a prejudice finding’’ under Strickland). To the
extent that the contemporaneous evidence was equivo-
cal; see footnote 3 of this opinion; it was up to the
habeas court, as the finder of fact, to weigh the equivo-
cal contemporaneous evidence in assessing whether to
believe all, none, or some of the petitioner’s testimony.
See, e.g., Echeverria v. Commissioner of Correction,
193 Conn. App. 1, 15 n.6, 218 A.3d 1116 (The court
‘‘reiterate[d] the well settled principle that [an appellate
court] must defer to the finder of fact’s evaluation of
the credibility of the witnesses that is based on its
invaluable firsthand observation of their conduct,
demeanor and attitude. . . . [The fact finder] is free
to juxtapose conflicting versions of events and [to]
determine which is more credible. . . . It is the [fact
finder’s] exclusive province to weigh the conflicting
evidence and to determine the credibility of witnesses.
. . . The [fact finder] can . . . decide what—all, none
or some—of a witness’ testimony to accept or reject.’’
(Internal quotations marks omitted.)), cert. denied, 333
Conn. 947, 219 A.3d 376 (2019). On the present factual
record, we will not second-guess the habeas court’s
credibility determination. See, e.g., State v. Ayala, 333
Conn. 225, 238, 215 A.3d 116 (2019) (‘‘[the fact finder]
was free to make its credibility determination, and we
do not second-guess that determination’’). Accordingly,
the habeas court did not err in concluding that the
petitioner had fulfilled his burden of establishing preju-
dice.
The judgment is affirmed.
In this opinion the other justices concurred.
1
General Statutes § 51-197f provides in relevant part that, ‘‘[u]pon final
determination of any appeal by the Appellate Court, there shall be no right
to further review except the Supreme Court shall have the power to certify
cases for its review upon petition by an aggrieved party or by the appellate
panel which heard the matter. . . .’’ Similarly, Practice Book § 84-1 provides
that ‘‘[a]n appeal may be filed with the Supreme Court upon the final determi-
nation of an appeal in the Appellate Court where the Supreme Court, upon
petition of an aggrieved party, certifies the case for review.’’
2
In his reply brief, the respondent claims for the first time on appeal that
the habeas court ‘‘[misread] the scope of [the Appellate Court’s] remand’’ and
incorrectly concluded that it ‘‘was precluded from reassessing the Appellate
Court’s legal conclusion that the petitioner had satisfied the performance
prong of [the Strickland] test . . . .’’ ‘‘It is axiomatic that a party may not
raise an issue for the first time on appeal in [his] reply brief. . . . Our
practice requires an appellant to raise claims of error in his original brief,
so that the issue as framed by him can be fully responded to by the appellee
in [his] brief, and so that we can have the full benefit of that written argument.
Although the function of the appellant’s reply brief is to respond to the
arguments and authority presented in the appellee’s brief, that function does
not include raising an entirely new claim of error.’’ (Citations omitted;
internal quotation marks omitted.) Crawford v. Commissioner of Correc-
tion, 294 Conn. 165, 197, 982 A.2d 620 (2009). We therefore decline to
address the respondent’s belated claim regarding the scope of the Appellate
Court’s remand.
3
The respondent relies on the following conflicting, contemporaneous
evidence: the petitioner’s intelligence, his prior plea bargaining experience,
his criminal history, his access to witness statements, his advisement of
maximum sentence exposure, his willingness to stand up for himself, and
his history of risk taking behavior.
4
This list is intended to be illustrative, rather than comprehensive. There
may be additional factors, depending on the facts pertinent to each individual
case. Indeed, in clarifying the ‘‘standard for showing prejudice in the context
of a guilty plea’’ in Lee, the United States Supreme Court ‘‘emphasiz[ed] the
need for a case-by-case examination of the totality of the evidence.’’ Young
v. Spinner, supra, 873 F.3d 285.