Miller v. Commissioner of Correction

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PETER MILLER v. COMMISSIONER OF CORRECTION
(AC 39330)
Alvord, Sheldon and Norcott, Js.
Syllabus
The petitioner, a citizen of Jamaica, sought a writ of habeas corpus, claiming
that his trial counsel provided ineffective assistance by failing to advise
him adequately as to the immigration consequences of his guilty plea
to a certain drug related offense that constituted an aggravated felony
under federal immigration law, which subjected him to mandatory depor-
tation. The habeas court rendered judgment denying the habeas petition
and, thereafter, denied the petition for certification to appeal, and the
petitioner appealed to this court. Held:
1. The habeas court abused its discretion in denying the petition for certifica-
tion to appeal, as a resolution of the issues raised by the petitioner
concerning counsel’s performance were debatable among jurists of rea-
son and could have been resolved by a court in a different manner.
2. The habeas court improperly concluded that the petitioner’s trial counsel
provided effective assistance in advising the petitioner regarding the
immigration consequences of his guilty plea: the record showed that
trial counsel failed to accurately advise the petitioner that his guilty
plea to an aggravated felony would subject him to mandatory deportation
but, instead, advised him that there was a substantial likelihood that he
would be deported as a result of the conviction, which was contrary to
the requirement that counsel unequivocally convey to the petitioner
that, as a result of his guilty plea to an aggravated felony, he was subject
to mandatory deportation under federal law; nevertheless, because the
habeas court did not make any findings as to whether the petitioner
demonstrated that he was prejudiced by trial counsel’s performance,
and the question of prejudice presented a mixed question of fact and
law, the matter was remanded to the habeas court for a determination
of whether the petitioner was prejudiced by his trial counsel’s defi-
cient performance.
Argued April 18—officially released September 26, 2017
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, geographical area number nineteen, and tried
to the court, Fuger, J.; judgment denying the petition;
thereafter, the court denied the petition for certification
to appeal, and the petitioner appealed to this court.
Reversed; further proceedings.
Vishal K. Garg, for the appellant (petitioner).
Lisa A. Riggione, senior assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, Angela Macchiarulo, senior assistant state’s
attorney, and Yamini Menon, assistant state’s attorney,
for the appellee (respondent).
Opinion
NORCOTT, J. The petitioner, Peter Miller, a citizen
of Jamaica, appeals following the denial of his petition
for certification to appeal from the judgment of the
habeas court denying his petition for a writ of habeas
corpus. On appeal, the petitioner claims that the habeas
court (1) abused its discretion in denying certification
to appeal and (2) improperly concluded that trial coun-
sel did not render ineffective assistance when advising
him of the immigration consequences of his guilty plea.
We agree that the habeas court abused its discretion
in denying the petition for certification to appeal and
that trial counsel rendered deficient performance when
advising the petitioner of the immigration consequences
of his guilty plea. We conclude, however, that the record
is inadequate to determine whether the petitioner was
prejudiced by counsel’s deficient performance. Accord-
ingly, we reverse the judgment of the habeas court and
remand the matter for further habeas proceedings in
accordance with this opinion.
The following facts and procedural history are rele-
vant to our resolution of this appeal. The petitioner was
charged under two separate docket numbers with a
variety of drug related offenses. On June 7, 2012, the
petitioner appeared before the court, Iannotti, J., and,
pursuant to a plea deal, pleaded guilty to possession
of a controlled substance with intent to sell in violation
of General Statutes § 21a-278 (b). At that time, the pros-
ecutor recited the following facts underlying this plea.
On or about October 13, 2011, a United States Postal
Service inspector intercepted a package that contained
eighteen pounds of marijuana. Thereafter, a controlled
delivery was made to 15 Pinetree Lane in Fairfield.
The package was accepted by the petitioner’s girlfriend,
Tracy Dapp, who, upon accepting it, informed the detec-
tives that the parcel was for the petitioner. Subse-
quently, the petitioner arrived at Dapp’s residence,
where he was arrested and made incriminating state-
ments to the police. The record indicates that a search
of the petitioner’s vehicle revealed the eighteen pounds
of marijuana, but it is unclear whether Dapp gave the
petitioner the marijuana to put in his vehicle before he
was apprehended by the police at her residence.
The petitioner was represented before the trial court
by Attorney Jared Millbrandt, a public defender. During
the plea canvass, the court asked the petitioner whether
he had discussed with counsel ‘‘the charge he pleaded
guilty to, the elements of the offense, maximum penalty
twenty years, [and] mandatory minimum five years,’’
and whether the petitioner understood that the court
could deviate below the mandatory minimum sentenc-
ing guidelines, to which the petitioner answered, ‘‘Yes.’’
The court then asked whether the petitioner was plead-
ing guilty ‘‘freely and voluntarily.’’ The petitioner
replied, ‘‘Yes.’’ The court asked, ‘‘Are the facts as read by
the state essentially correct?’’ The petitioner answered,
‘‘Correct.’’ Finally, the court asked the following: ‘‘Do
you understand [that] if you are not a citizen this can
result in deportation from the United States, exclusion
from the admission to the United States, [and] denial
of naturalization pursuant to the laws of the United
States?’’ The petitioner replied, ‘‘Yes.’’ The court then
found that the plea was voluntarily and knowingly made
with the assistance of competent counsel. On July 30,
2012, the court sentenced the petitioner to seven years
of incarceration, execution suspended after sixteen
months, followed by three years of probation.
On July 30, 2013, the United States Immigration Court
ordered that the petitioner be removed from the United
States to Jamaica because his conviction of possession
of a controlled substance with intent to sell constituted
an aggravated felony, for which the consequence is
mandatory deportation.1
In May, 2015, the petitioner commenced the present
action. On September 8, 2015, the petitioner filed the
operative amended petition for a writ of habeas corpus,
which in relevant part alleges ineffective assistance of
counsel because Millbrandt did not adequately advise
him as to the immigration consequences of his guilty
plea.2
The court held the habeas trial on February 11, 2016,
during which the court heard testimony from, among
others: Millbrandt; Justin Conlon, an immigration attor-
ney; Kenneth Simon, a retired public defender with
knowledge of the standard of care for criminal defense
attorneys; Elisa Villa, a supervisory assistant public
defender; and the petitioner. On May 25, 2016, the court
issued an oral ruling from the bench. In relevant part,
the court made the following findings of fact and conclu-
sions of law concerning the petitioner’s claim that Mill-
brandt had rendered ineffective assistance: ‘‘Millbrandt
was aware of the immigration issues and it is clear from
his testimony . . . that he did, in fact, investigate, dis-
cuss and understand the immigration issues and immi-
gration status of [the petitioner]. . . . Millbrandt [met]
the minimal standards of providing advice on the immi-
gration issue to [the petitioner]. It does not, however,
appear that [Millbrandt] categorically advised [the peti-
tioner] that he would under any and all circumstances
be deported to Jamaica if he accepted this guilty plea.
He did, in fact, fall slightly short of that statement. . . .
‘‘Nevertheless, [the petitioner] and his counsel did
discuss the immigration issues numerous times. [Mill-
brandt] told [the petitioner] to assume that he would
be deported.3 In other words, when making the decision
as to whether to accept the plea bargain, he all but told
him it would be . . . a virtual certainty [that the peti-
tioner would] be deported. He told him there was a
substantial likelihood of deportation.
‘‘It is clear that [the petitioner] and [Millbrandt] dis-
cussed the immigration issues early and often. In fact,
[Millbrandt] reviewed the document that [Villa] had pre-
pared, which parenthetically the court notes is a thor-
ough summary of the issue for criminal practitioners.
‘‘[Millbrandt] further indicated that he spoke with an
immigration lawyer.4 [Millbrandt] indicated that he even
discussed the immigration issues with the prosecutor,
but the prosecutor was not interested or concerned
about the immigration issues, nor is there any case law
that suggests that a prosecutor has any duty to consider
immigration implications.
‘‘[Millbrandt] told the petitioner that there was a like-
lihood that he would be deported. It’s a bit disingenuous
at this point then for [the petitioner] to indicate he
wasn’t aware that by pleading to this case there could
be adverse immigration effects upon his immigration
status.
‘‘I will specifically find that the advice of [Millbrandt],
while perhaps not as thorough as that suggested by
[habeas] counsel for the petitioner, did meet the mini-
mal standards of constitutional acceptability and that
he did not violate the standard of care required of a
criminal defense counsel operating within the state of
Connecticut.’’ (Emphasis added; footnote added.)
Accordingly, the court denied the petition for a writ
of habeas corpus because the petitioner had failed to
prove deficient performance, and subsequently denied
further the petitioner’s petition for certification to
appeal. This appeal followed. Additional facts will be
set forth as necessary.
I
The petitioner claims that the habeas court abused
its discretion in denying his petition for certification to
appeal from the denial of his petition for a writ of
habeas corpus with respect to his claims of ineffective
assistance of counsel. Specifically, he argues that
because these issues are debatable among jurists of
reason, a court could resolve the issues differently,
and, therefore, the habeas court abused its discretion
in denying his petition to appeal.
‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the dismissal of his petition for habeas corpus
only by satisfying the two-pronged test enunciated by
our Supreme Court in Simms v. Warden, 229 Conn.
178, 640 A.2d 601 (1994), and adopted in Simms v.
Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First,
[the petitioner] must demonstrate that the denial of
his petition for certification constituted an abuse of
discretion. . . . Second, if the petitioner can show an
abuse of discretion, he must then prove that the deci-
sion of the habeas court should be reversed on the
merits. . . . To prove that the denial of his petition for
certification to appeal constituted an abuse of discre-
tion, the petitioner must demonstrate that the [resolu-
tion of the underlying claim involves issues that] are
debatable among jurists of reason; that a court could
resolve the issues [in a different manner]; or that the
questions are adequate to deserve encouragement to
proceed further. . . .
‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria . . . adopted by [our Supreme
Court] for determining the propriety of the habeas
court’s denial of the petition for certification.’’ (Cita-
tions omitted; internal quotation marks omitted.) Sand-
ers v. Commissioner of Correction, 169 Conn. App. 813,
821–22, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904,
156 A.3d 536 (2017).
As discussed more fully in part II of this opinion,
we agree with the petitioner’s claim that trial counsel
rendered deficient performance in that he failed to accu-
rately advise the petitioner as to the immigration conse-
quences of his guilty plea. Accordingly, we need not
address the petitioner’s claim as to whether counsel
failed to accurately advise him of the enforcement prac-
tices of the federal immigration authorities. Cf. State
v. Ross, 230 Conn. 183, 285, 646 A.2d 1318 (1994) (declin-
ing to review claim when dispositive claim resolved in
defendant’s favor); Breiter v. Breiter, 80 Conn. App.
332, 335 n.1, 835 A.2d 111 (2003) (same). Because the
resolution of the petitioner’s claim involves issues that
are debatable among jurists of reason, we conclude
that the habeas court abused its discretion in denying
certification to appeal from the denial of the petition
for a writ of habeas corpus.
II
We now turn to the petitioner’s substantive claim,
which is that the habeas court improperly concluded
that he received effective assistance of counsel. Specifi-
cally, he argues that (1) counsel was deficient for failing
to adequately advise him of the immigration conse-
quences of his guilty plea, and (2) that he was prejudiced
by counsel’s deficient performance.
We set forth the relevant legal principles and our
standard of review. ‘‘The sixth amendment to the United
States constitution, made applicable to the states
through the due process clause of the fourteenth
amendment, affords criminal defendants the right to
effective assistance of counsel. Davis v. Commissioner
of Correction, 319 Conn. 548, 554, 126 A.3d 538 (2015),
cert. denied sub nom. Semple v. Davis, U.S. ,
136 S. Ct. 1676, 194 L. Ed. 2d 801 (2016); see also Thier-
saint v. Commissioner of Correction, 316 Conn. 89, 100,
111 A.3d 829 (2015) (criminal defendant constitutionally
entitled to adequate and effective assistance of counsel
at all critical stages of criminal proceedings). Although
a challenge to the facts found by the habeas court is
reviewed under the clearly erroneous standard,
whether those facts constituted a violation of the peti-
tioner’s rights under the sixth amendment is a mixed
determination of law and fact that requires the applica-
tion of legal principles to the historical facts of this case.
. . . As such, that question requires plenary review by
this court unfettered by the clearly erroneous stan-
dard. . . .
‘‘It is well established that the failure to adequately
advise a client regarding a plea offer from the state
can form the basis for a sixth amendment claim of
ineffective assistance of counsel. The United States
Supreme Court . . . recognized that the two part test
articulated in Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), applies to
ineffective assistance of counsel claims arising out of
the plea negotiation stage. Hill v. Lockhart, 474 U.S.
52, 57, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985) . . . .’’
(Citations omitted; internal quotation marks omitted.)
Duncan v. Commissioner of Correction, 171 Conn.
App. 635, 646–47, 157 A.3d 1169, cert. denied, 325 Conn.
923, 159 A.3d 1172 (2017).
We now set forth the well established standard that
applies to a claim of ineffective assistance of counsel.
‘‘To succeed on a claim of ineffective assistance of
counsel, a habeas petitioner must satisfy the two-
pronged test articulated in Strickland v. Washington,
[supra, 466 U.S. 687]. . . . The petitioner has the bur-
den to establish 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 proceedings would have been different
had it not been for the deficient performance. . . .
‘‘To satisfy the performance prong, a claimant must
demonstrate that counsel made errors so serious that
counsel was not functioning as the counsel guaranteed
. . . by the [s]ixth [a]mendment. . . . It is not enough
for the petitioner to simply prove the underlying facts
that his attorney failed to take a certain action. Rather,
the petitioner must prove, by a preponderance of the
evidence, that his counsel’s acts or omissions were so
serious that counsel was not functioning as the counsel
guaranteed by the sixth amendment, and as a result,
he was deprived of a fair trial.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Jones v. Commissioner of Correction, Superior Court,
judicial district of Tolland, Docket No. CV-12-4004742-
S (November 21, 2014) (reprinted in 169 Conn. App.
407, 415–16), aff’d, 169 Conn. App. 405, 150 A.3d 757
(2016), cert. denied, 324 Conn. 909, 152 A.3d 1246
(2017).
‘‘For claims of ineffective assistance of counsel aris-
ing out of the plea process, the United States Supreme
Court has modified the second prong of the Strickland
test to require that the petitioner produce evidence that
there is a reasonable probability that, but for counsel’s
errors, [the petitioner] would not have pleaded guilty
and would have insisted on going to trial. . . . An inef-
fective assistance of counsel claim will succeed only if
both prongs [of Strickland] are satisfied. . . . [S]ee
. . . Hill v. Lockhart, [supra, 474 U.S. 59] (modifying
Strickland prejudice analysis in cases in which peti-
tioner entered guilty plea). It is axiomatic that courts
may decide against a petitioner on either prong [of the
Strickland test], whichever is easier. Lewis v. Commis-
sioner of Correction, 165 Conn. App. 441, 451, 139 A.3d
759, [cert. denied, 322 Conn. 901, 138 A.3d 931 (2016)],
citing Strickland v. Washington, supra, 466 U.S. 697 (a
court need not determine whether counsel’s perfor-
mance was deficient before examining the prejudice
suffered by the [petitioner]).’’ (Citation omitted; internal
quotation marks omitted.) Flomo v. Commissioner of
Correction, 169 Conn. App. 266, 278, 149 A.3d 185
(2016), cert. denied, 324 Conn. 906, 152 A.3d 544 (2017).
A
The petitioner first argues that the habeas court
improperly concluded that Millbrandt’s performance
was not deficient. Specifically, he alleges that Mill-
brandt failed to advise him adequately that entering a
guilty plea to an aggravated felony would subject him
to mandatory deportation. We agree.
The following additional facts are necessary for our
resolution of this claim. At the habeas trial, Millbrandt
testified that the petitioner’s primary concern was to
avoid a lengthy term of imprisonment, and that once
that it became apparent that avoiding a term of impris-
onment was not possible, discussions of a plea deal
ensued. As part of his advice to the petitioner in relation
to the plea deal and its effect on his immigration status,
Millbrandt relayed to the petitioner that ‘‘anything is
possible with regard to the federal government that they
may decide to not take immigration action against
him or actually come and physically remove him but
. . . my advice to him was that in my opinion convic-
tions of these . . . charges would be drug trafficking
offenses and [that] they would render him deportable
so we should assume that that would be the case.’’
(Emphasis added.) The following exchange occurred
between the petitioner’s habeas counsel and Millbrandt:
‘‘Q. What did you do to determine the immigration
consequences in [the petitioner’s] case?
‘‘A. . . . In December of 2011, I had contacted an
immigration attorney in light of the Padilla [v. Ken-
tucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284
(2010)] decision . . . to determine or obtain some
tools that would be helpful in advising clients as to
potential immigration consequences and as a result of
that conversation and e-mail with that attorney, I was
sent [A Brief Guide to Representing Non-Citizen Crimi-
nal Defendants in Connecticut (brief guide)]. . . .
‘‘Q. Did you rely on [the brief guide] in determining
the immigration consequences in [the petitioner’s]
case specifically?
‘‘A. Yes.’’
The following additional exchange occurred during
the direct examination of Millbrandt:
‘‘Q. Did you ever advise [the petitioner] that he defi-
nitely would be deported?
‘‘A. I said that in my opinion a conviction would
render him deportable. I could not speak for Immigra-
tion and Customs Enforcement as to whether they
would actually decide to come and pick him up.
‘‘Q. Did you explain to him what you meant by
deportable?
‘‘A. Yes.
‘‘Q. And what did you tell him?
‘‘A. That deportation proceedings could be carried
out against him. He would possibly be held until he was
removed physically . . . from the country to Jamaica.
‘‘Q. Did you give him any advice about the likelihood
of deportation?
‘‘A. My advice was that based on either of these
options5 there was a substantial likelihood and proba-
bility that [he] would be deported.
‘‘Q. And was that the language that you used: substan-
tial likelihood?
‘‘A. I told him that there was a . . . substantial likeli-
hood or substantial possibility of his deportation, yes.
‘‘Q. Did you write down the specific language you
used?
‘‘A. No, I did not.
‘‘Q. Did you advise [the petitioner] whether immigra-
tion authorities were mandated to deport him?
‘‘A. No. . . .
‘‘Q. So it was you[r] testimony [that] you told [the
petitioner] that he would be deportable. Is that right?
‘‘A. Yes.
‘‘Q. And that that meant that he could be picked up by
immigration authorities and removed from the country?
‘‘A. Correct. That that was a possibility, yes. . . .
‘‘Q. Did you advise him about the likelihood that he
would be picked up by immigration authorities?
‘‘A. . . . I did not. I did not say whether it was
likely or not that he would be picked up. I said it was
a possibility that he could be picked up by the immigra-
tion authorities.
‘‘Q. Did you advise him about what would happen if
[he] were picked up or about the likelihood of success
in immigration proceedings?
‘‘A. No.
‘‘Q. Did you ever advise him that he would be auto-
matically deportable?
‘‘A. No, I did not.
‘‘Q. Did you advise him that deportation was a vir-
tual certainty?
‘‘A. I did not say that. I said [that] I thought . . .
there was a substantial likelihood that he would be
deported. I did not tell him it was a virtual certainty.’’
(Emphasis added.)
The following exchange between counsel for the
respondent, the Commissioner of Correction, and Mill-
brandt occurred on cross-examination:
‘‘Q. [Y]ou indicated that you told him assume you
would be deported if you accepted a plea to either one
of these charges?
‘‘A. I told him that in my opinion it was safe to assume
that he would face deportation as a result of a plea to
either one of the options that were put to us.
‘‘Q. And he appeared to you to understand what you
said with respect to the fact that he would be deported
if he entered a plea to either of these charges?
‘‘A. He appeared to.
‘‘Q. And he never indicated to you that he didn’t
understand?
‘‘A. No.
‘‘Q. And he never questioned what deportation
meant?
‘‘A. No.
‘‘Q. And he never indicated to you that he alternatively
would want to reject the plea offer and actually go to
trial; did he?
‘‘A. He did not. . . .
‘‘Q. [Y]ou told [the petitioner] that if he were to accept
either plea, he would be deported. Isn’t that correct?
‘‘A. I did not tell him that it was a certainty that he
would be deported. . . . I told him that it was safe to
assume that he would be deported.’’
The petitioner testified that Millbrandt did not advise
him that he would ‘‘definitely be deported or that it was
a virtual certainty’’ upon the entry of a guilty plea, and
that, contrary to Millbrandt’s testimony, he received no
advice about any immigration consequences that would
result from the entry of a guilty plea. The petitioner
testified that, had he been advised that pleading guilty
would result in his deportation, he would have not taken
the plea deal and instead would have taken his chances
with a trial, even if it meant a term of imprisonment
up to fifty years.6
Having reviewed the relevant facts, we now turn to
the legal principles that guide our analysis of the peti-
tioner’s claim. In order to assess the conclusion of the
habeas court that Millbrandt had satisfied the minimal
standard in advising the petitioner of the immigration
consequences of his guilty plea, and therefore did not
render deficient performance, we must review Padilla
v. Kentucky, supra, 559 U.S. 356; and Budziszewski v.
Commissioner of Correction, 322 Conn. 504, 142 A.3d
243 (2016). In Padilla, the United States Supreme Court
held for the first time that a defense attorney’s failure
to advise his client accurately of the immigration conse-
quences of his guilty plea could constitute ineffective
assistance of counsel. Padilla v. Kentucky, supra, 368–
69. The Supreme Court further explained the obliga-
tions of a criminal defense attorney when advising a
client of the immigration consequences of the pending
criminal charge(s): ‘‘When the law is not succinct and
straightforward . . . a criminal defense attorney need
do no more than advise a noncitizen client that pending
criminal charges may carry a risk of adverse immigra-
tion consequences. But when the deportation conse-
quence is truly clear, as it was in this case, the duty to
give correct advice is equally clear.’’ (Emphasis added;
footnote omitted.) Id., 369.
Our Supreme Court recently considered the degree
of clarity required by Padilla when advising a noncitizen
client on the mandatory immigration consequences of
his guilty plea in Budziszewski v. Commissioner of
Correction, supra, 322 Conn. 506–507. In Budziszewski,
trial counsel negotiated a plea deal whereby the peti-
tioner, Piotr Budziszewski, a lawful permanent resident,
would plead guilty to one count of possession of a
controlled substance with intent to sell, which is an
aggravated felony for which deportation is mandated.
Budziszewski pleaded guilty to that charge. After his
release from state custody, Budziszewski was detained
by federal authorities and was ordered to be removed
on the basis of his felony conviction. Id., 508–509. In
his petition for a writ of habeas corpus, Budziszewski
alleged, inter alia, that trial counsel failed to advise him
of the immigration consequences of his guilty plea as
required by Padilla. Id. The habeas court concluded
that trial counsel’s advice to Budziszewski—that his
conviction would create a ‘‘ ‘heightened risk’ ’’ of depor-
tation, rather than mandate deportation under federal
law, was adequate under Padilla. Id., 510. Our Supreme
Court disagreed, reasoning that counsel’s warning that
Budziszewski was only facing a ‘‘ ‘heightened risk’ ’’
of deportation ‘‘would not accurately characterize the
law.’’ Id., 512. Instead, ‘‘[b]ecause federal law called
for deportation for the petitioner’s conviction, [trial]
counsel was required to unequivocally convey to [Bud-
ziszewski] that federal law mandated deportation as
the consequence for pleading guilty.’’ Id.
Our Supreme Court further explained that, for crimes
designated as aggravated felonies, ‘‘Padilla requires
counsel to inform the client about the deportation con-
sequences prescribed by federal law. . . . Because
noncitizen clients will have different understandings of
legal concepts 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 language actually used by counsel to ensure
that counsel explained the consequences set out in fed-
eral law accurately and in terms the client could under-
stand. In circumstances when federal law mandates
deportation and the client is not eligible for relief under
an exception to that command, counsel must unequivo-
cally convey to the client that federal law mandates
deportation as the consequence for pleading guilty.’’
(Emphasis added.) Id., 507.
In Duncan v. Commissioner of Correction, supra,
171 Conn. App. 635, we had an opportunity to consider
the impact of Budziszewski on our Padilla jurispru-
dence. In Duncan, the habeas court concluded that the
petitioner’s trial counsel did not perform deficiently
despite testifying that ‘‘he could not recall clearly advis-
ing the petitioner that he would be deportable without
a defense [to deportation], although it was his practice
to have conversations with clients regarding the immi-
gration consequences of a guilty plea.’’ Id., 656. We
noted that trial counsel also admitted that he probably
was unaware that the petitioner’s conviction consti-
tuted an aggravated felony for immigration purposes
or that an aggravated felony rendered a noncitizen
deportable without a defense to deportation. Id. ‘‘In
response to the petitioner’s argument that [his counsel]
failed to tell him that removal was mandatory and non-
appealable, the habeas court indicated that these collat-
eral consequences were not of constitutional magnitude
and could not be transformed into direct conse-
quences.’’ Id., 657.
In Duncan, we concluded that, ‘‘[i]n accordance with
the clarification in Budziszewski of counsel’s duty to
unequivocally inform a client of the mandatory deporta-
tion as a consequence of pleading guilty to an aggra-
vated felony, the habeas court improperly concluded
that [counsel’s] performance was not deficient. Specifi-
cally, [counsel] failed to comply with Padilla because
he did not explain the clear immigration consequences
set forth in federal law in an accurate manner and in
terms that the petitioner could comprehend. . . . The
immigration consequences in this case were clearly dis-
cernable; [the petitioner’s conviction] constituted an
aggravated felony for immigration purposes and thus
federal law mandated deportation. [The petitioner’s
counsel], therefore, was obligated to convey to the peti-
tioner unequivocally this consequence of pleading
guilty.’’ (Citation omitted.) Id., 658.
We explained in Duncan that, even if the habeas
court credited counsel’s testimony that the petitioner’s
conviction could ‘‘ ‘create some problems with regard
to . . . immigration,’ this statement does not meet the
required standard set forth in Padilla,’’; id., 658–59; and
concluded that ‘‘this advice is akin to the advice given
in Budziszewski where counsel warned of a heightened
risk of deportation . . . .’’ (Internal quotation marks
omitted.) Id., 659. We held that the petitioner’s counsel
was ‘‘required to inform the petitioner that, as a result
of his guilty plea to a crime that fell within the federal
definition of an aggravated felony, he was subject to
mandatory deportation under federal law, which [coun-
sel] failed to do. His advice did not meet the standard
set forth in Padilla as interpreted by Budziszewski.
Accordingly, we agree with the petitioner that the
habeas court improperly determined that [counsel] was
not deficient, under Strickland, with respect to his
advice regarding the immigration consequences . . . .’’
Id., 659. We then held that the petitioner failed to suc-
cessfully challenge the habeas court’s conclusion that
he was not prejudiced as a result of trial counsel’s
deficient performance and, accordingly, concluded that
the habeas court did not abuse its discretion in denying
certification to appeal. Id., 663–65.
With the foregoing legal principles in mind, we now
review the conclusion of the habeas court that Mill-
brandt did not render deficient performance. It is undis-
puted that a conviction under § 21a-278 (b) constitutes
an aggravated felony and that federal immigration law
mandates deportation for aggravated felonies, with lim-
ited exceptions that do not apply in the present case.
Millbrandt testified that he was aware of this and there-
fore advised the petitioner that in relation to the immi-
gration consequences he was facing, he should ‘‘assume
that he would be deported’’ and that there was a ‘‘sub-
stantial likelihood and probability’’ or ‘‘possibility’’ of
deportation. He further counseled the petitioner that
his conviction would render him ‘‘deportable’’ and
explained that term to mean that ‘‘deportation proceed-
ings could be carried out against him.’’ Millbrandt fur-
ther testified that he did not advise the petitioner as
to whether immigration authorities were mandated to
deport him and that he did not advise the petitioner
that, as a result of his guilty plea, his subsequent depor-
tation was a virtual certainty and that he would be
automatically deportable.
On the basis of this testimony, the habeas court found
that Millbrandt did not ‘‘categorically [advise the peti-
tioner] that he would under any and all circumstances
be deported to Jamaica if he accepted [the] guilty plea.’’
The court nonetheless concluded that Millbrandt’s
advice was constitutionally adequate under Padilla.
In light of our Supreme Court’s articulation in Budzis-
zewski, we conclude that the habeas court incorrectly
concluded that Millbrandt’s advice was constitutionally
adequate. Pursuant to Budziszewski, Millbrandt was
required to ‘‘unequivocally convey to [the petitioner]
that federal law mandated deportation as the conse-
quence for pleading guilty.’’ Budziszewski v. Commis-
sioner of Correction, supra, 322 Conn. 512. As the court
acknowledged, Millbrandt’s advice ‘‘fell slightly short’’
of this. We agree with the petitioner that, instead, Mill-
brandt’s advice inaccurately conveyed to the petitioner
that he would have some chance of avoiding deporta-
tion after pleading guilty, and therefore counsel’s advice
did not meet the standard set forth in Padilla as inter-
preted by Budziszewski and applied by us in Duncan.
We therefore conclude that Millbrandt performed
deficiently when he advised the petitioner in regard to
the immigration consequences of his guilty plea.
B
The petitioner next argues that, as a result of coun-
sel’s deficient performance, he was prejudiced because
he would not have pleaded guilty had he been properly
advised of the immigration consequences of his guilty
plea.7 We conclude that the record is inadequate for us
to determine whether the petitioner proved prejudice
under Strickland.
As we previously stated, Strickland requires that a
petitioner prove both deficient performance and
resulting prejudice, and thus a court can find against a
petitioner on either ground. Small v. Commissioner of
Correction, 286 Conn. 707, 712–13, 946 A.2d 1203, cert.
denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S.
Ct. 481, 172 L. Ed. 2d 336 (2008). In the present case, the
habeas court concluded that the petitioner had failed
to satisfy the performance prong of Strickland, and,
therefore, it did not determine whether the petitioner
also had failed to satisfy the prejudice prong. We recog-
nize, as the parties have observed, that the habeas court
did make certain factual findings that might be relevant
to a prejudice analysis. Nevertheless, the habeas court
failed to consider whether, if Millbrandt’s performance
was constitutionally deficient, ‘‘there is a reasonable
probability that, but for [that deficient performance],
[the petitioner] would not have pleaded guilty and
would have insisted on going to trial.’’ (Internal quota-
tion marks omitted.) Flomo v. Commissioner of Correc-
tion, 169 Conn. App. 278. Because the question of
prejudice presents a mixed question of fact and law,
we cannot conclude whether the petitioner was preju-
diced by Millbrandt’s deficient performance without the
habeas court’s complete factual findings concerning the
Strickland prejudice prong. Small v. Commissioner of
Correction, supra, 717 (‘‘[t]he application of historical
facts to questions of law that is necessary to determine
whether the petitioner has demonstrated prejudice
under Strickland . . . is a mixed question of law and
fact subject to our plenary review’’); see also State v.
Daly, 111 Conn. App. 397, 400, 960 A.2d 1040 (2008)
(‘‘it is well established that as an appellate tribunal, we
do not find facts’’), cert. denied, 292 Conn. 909, 973
A.2d 108 (2009).
In sum, we conclude that the habeas court abused
its discretion when it denied the petitioner’s petition
for certification to appeal because a court could resolve
the issues in a different manner. We further conclude
that the petitioner proved that Millbrandt rendered defi-
cient performance when advising him of the immigra-
tion consequences of his guilty plea. We therefore
remand the matter to the habeas court with direction
to determine whether the petitioner was prejudiced by
Millbrandt’s deficient performance.
The judgment is reversed and the case is remanded
for further proceedings on the issue of whether the
petitioner was prejudiced by his trial counsel’s defi-
cient performance.
In this opinion the other judges concurred.
1
See 8 U.S.C. § 1227 (a) (2) (A) (iii) (2012).
2
To support his ineffective assistance of counsel claim, the petitioner
further argued, in the first count of his amended petition, that Millbrandt
failed (1) adequately to research the immigration consequences of his guilty
plea; (2) accurately to advise him about the probability of deportation,
removal and inadmissibility for reentry under the terms of the plea
agreement; and (3) to effectively utilize the possible immigration conse-
quences of pleading guilty during the plea negotiation process. Because we
determine that Millbrandt rendered deficient performance when he failed
to advise the petitioner of the immigration consequences of his guilty plea,
we need not reach the petitioner’s remaining arguments as to other acts
which also may have constituted deficient performance.
The petitioner also claimed, in the second count of his amended petition,
that his guilty plea was not made knowingly, intelligently, and voluntarily
because he did not know or understand the immigration consequences that
he would face upon the entry of a guilty plea, and that he would not have
entered a guilty plea had he known and understood the immigration conse-
quences of that plea. On the day of the habeas trial, the petitioner withdrew
this count.
3
The petitioner argues that the court made a clearly erroneous factual
finding that ‘‘counsel advised the petitioner that he should assume he would
be deported.’’ The petitioner never developed this argument further, and
the record supports the court’s factual finding. Millbrandt testified that he
advised the petitioner that ‘‘it was safe to assume that he would be deported.’’
This testimony aligns with the court’s factual findings.
4
The petitioner argues that the court made a clearly erroneous factual
finding when it found that Millbrandt had consulted an immigration attorney
because Millbrandt testified that he did not speak with an immigration
attorney in connection with the petitioner’s case. Millbrandt, however, also
testified that he spoke with an immigration attorney in December, 2011,
about the decision in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176
L. Ed. 2d 284 (2010), so that he could ‘‘determine or obtain some tools that
would be helpful in advising clients as to potential immigration conse-
quences’’ which would follow the entry of a guilty plea to an aggravated
felony offense. Thus, in light of the record, the court’s factual finding that
Millbrandt ‘‘spoke with an immigration attorney’’ is not clearly erroneous.
5
The petitioner, in his brief, alleges that there were two proposed plea
offers. The first, made by the state, involved a guilty plea to one count of
possession of marijuana with intent to sell, in violation of General Statutes
§ 21a-277 (b), and required a sentence of seven years of incarceration, execu-
tion suspended after twenty months, and three years of probation. The
second, made by the court, involved a guilty plea to § 21a-278 (b), for which
the court would consider a motion to impose a sentence less than the five
year mandatory minimum.
6
Had he proceeded to trial on all of the charges, the petitioner’s potential
sentencing exposure was approximately thirty-eight to forty-seven years of
incarceration, with a mandatory minimum term of five years of imprison-
ment. Millbrandt described the judge as a ‘‘heavy hitter’’ and that ‘‘from the
outset [he] had indicated that this was a case that required a jail sentence
and so had the state.’’ Furthermore, the option of a diversionary program
was ‘‘never on the table.’’
7
The petitioner argues in the alternative that the court improperly specu-
lated, during its oral decision, that the petitioner pleaded guilty because he
was guilty. During the court’s canvass of the petitioner, however, he replied
‘‘[c]orrect’’ when asked ‘‘[a]re the facts as read by the state essentially
correct?’’ Therefore, we do not agree with the petitioner that the court
speculated as to his guilt.