Barlow v. Commissioner of Correction

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ALISON BARLOW v. COMMISSIONER
OF CORRECTION
(AC 37417)
Beach, Keller and West, Js.
Argued February 9—officially released June 28, 2016
(Appeal from Superior Court, judicial district of
Tolland, Sferrazza, J.)
Naomi T. Fetterman, with whom was Aaron J.
Romano, for the appellant (petitioner).
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Eva B. Lenczewski, supervisory assistant
state’s attorney, for the appellee (respondent).
Opinion
KELLER, J. Following a grant of certification to
appeal, the petitioner, Alison Barlow, appeals from the
judgment of the habeas court denying his amended
petition for a writ of habeas corpus. The petitioner
claims that the court improperly (1) denied his motion
for recusal, (2) denied his request for a new evidentiary
hearing, and (3) concluded that he failed to demonstrate
prejudice as a result of his trial counsel’s deficient per-
formance.1 We agree with the first and second claims
raised by the petitioner, reverse the judgment of the
habeas court, and remand the case for further proceed-
ings consistent with this opinion.
The following facts and procedural history are rele-
vant to this appeal. In 1998, following a jury trial, the
petitioner was convicted of attempt to commit murder
in violation of General Statutes §§ 53a-49 (a) (2) and
53a-54a, conspiracy to commit murder in violation of
General Statutes §§ 53a-48 (a) and 53a-54a, two counts
of assault in the first degree in violation of General
Statutes § 53a-59 (a) (1) and alteration of a firearm
identification number in violation of General Statutes
§ 29-36. The petitioner was sentenced to a total effective
term of thirty-five years imprisonment. Following a
direct appeal brought by the petitioner, this court
affirmed the judgment of conviction. State v. Barlow,
70 Conn. App. 232, 797 A.2d 605, cert. denied, 261 Conn.
929, 806 A.2d 1067 (2002).
Following his conviction, the petitioner brought sev-
eral petitions for a writ of habeas corpus. At issue in
the present appeal is an amended petition that the peti-
tioner filed on January 17, 2002—his third petition for
a writ of habeas corpus—in which he alleged in count
one that his trial counsel, Attorney Sheridan L. Moore,
rendered ineffective assistance in connection with a
plea bargain offer2 and in connection with the represen-
tation that she afforded the petitioner during the trial
generally.3 In count two, the petitioner alleged that his
prior habeas counsel, Attorney Christopher Neary, ren-
dered ineffective assistance by failing to pursue a claim
that Moore had rendered ineffective representation dur-
ing his criminal trial.
Following a hearing, the habeas court, Sferrazza, J.,
dismissed the amended petition with respect to the
claim of ineffective representation by Moore set forth
in count one. With respect to this count, the court, sua
sponte, invoked the doctrine of deliberate bypass and
stated, in relevant part: ‘‘This, the petitioner’s third
habeas action in which he has asserted claims of ineffec-
tiveness against Moore, is a blatant example of the
procedural evils that the deliberate bypass rule was
created to thwart.’’ The court denied the petition with
respect to the claim of ineffective representation by
Neary set forth in count two. In rejecting the claim
that Neary rendered ineffective representation for, in
relevant part, failing to pursue a claim of ineffective
representation against Moore, the court made several
findings with respect to the nature of Moore’s represen-
tation of the petitioner with respect to the plea offer.
In relevant part, the court stated: ‘‘The court has found
that Moore fully apprised the petitioner as to the terms
of the plea offer, including its temporary nature, the
strengths and weaknesses of the prosecution and
defense cases, and the possible outcomes after trial.
. . .
‘‘Moore, at the time of the petitioner’s criminal case,
had seventeen years of experience handling serious
criminal matters as a special public defender and five
and one-half years as a public defender for the Water-
bury judicial district. This experience entailed
defending clients charged with murder and trying such
cases to verdict. No expert witness testified critically
of Moore’s representation of the petitioner. To the con-
trary, Attorney Neary averred that he examined Moore’s
performance for the petitioner’s defense and found no
basis for such an ineffective assistance claim against
her.
‘‘The court determines that the petitioner has failed
to prove that Moore was deficient in any of the ways
alleged surrounding the petitioner’s rejection of the nine
year plea offer. As a result, the petitioner has also failed
to meet his burden of establishing that [prior habeas
counsel had] rendered ineffective assistance by with-
drawing the claims against Moore through amended
petitions.’’ (Citations omitted.)
The petitioner appealed to this court from the judg-
ment of the habeas court. With respect to the petition-
er’s claim that the habeas court improperly dismissed
his claim that Moore had rendered ineffective assis-
tance with respect to the trial court’s plea offer, this
court ruled that, in the absence of any claim by the
respondent, the Commissioner of Correction, that the
doctrine of deliberate bypass applied in the present
case, the habeas court erroneously had relied on that
doctrine in dismissing that aspect of the petition. Bar-
low v. Commissioner of Correction, 150 Conn. App.
781, 785–88, 93 A.3d 165 (2014). After reviewing the
findings of the habeas court and the evidence in the
record, which included Moore’s testimony during the
habeas trial, this court disagreed with the habeas court’s
assessment of Moore’s representation. This court, refer-
ring to Moore’s undisputed testimony at the habeas trial,
concluded as a matter of law that Moore’s performance
with respect to the plea offer was deficient ‘‘because
she did not give the petitioner her professional advice
and assistance concerning, and her evaluation of, the
court’s plea offer.’’ Id., 802.
Although we resolved the issue of deficient perfor-
mance in the petitioner’s favor, this court rejected the
petitioner’s argument that, on the basis of the record,
we could presume that he was prejudiced, under the
applicable standard of prejudice, as a result of Moore’s
deficient performance concerning the plea offer. Id.
This court agreed with the respondent that the habeas
court was in the best position to determine an unre-
solved issue integral to whether the petitioner was prej-
udiced by Moore’s deficient performance, specifically,
‘‘whether it is reasonably likely that the petitioner would
have accepted the offer had he received adequate advice
from Moore.’’ Id., 804. In light of our resolution of the
claim concerning Moore, this court concluded that it
did not need to consider, on its merits, ‘‘the issue of
whether Neary’s performance was deficient for failing
to pursue the issue of Moore’s performance.’’ Id., 783
n.1.
In the rescript of our opinion, this court set forth the
following order: ‘‘The judgment is reversed in part and
the case is remanded for further proceedings on the
issue of whether the petitioner was prejudiced by coun-
sel’s deficient performance. In the event that the habeas
court finds that the petitioner has established prejudice,
and no timely appeal is taken from that decision, the
judgment is reversed and the case is remanded with
direction to grant the petition for a writ of habeas cor-
pus. In the event that the habeas court finds that the
petitioner has failed to demonstrate prejudice, and no
timely appeal is taken from that decision, the judgment
is reversed only as to form and the court is ordered to
render judgment denying rather than dismissing the
petition as it relates to the claim that Moore provided
ineffective assistance of counsel.’’ Id., 804–805.
Judge Sferrazza, who had presided over the habeas
proceedings and, as discussed previously in this opin-
ion, had issued the prior judgment that was the subject
of this court’s prior decision in the habeas matter, pre-
sided over the proceedings on remand. The record
reflects that on August 5, 2014, at a hearing following the
issuance of this court’s remand order, Judge Sferrazza
asked the parties to express their positions with respect
to several issues, including whether this court’s remand
order required the court to hold an evidentiary hearing
or whether the order required the court to make the
required finding with respect to prejudice on the basis of
the evidence in the record. Additionally, Judge Sferrazza
raised the issue of whether, following this court’s rever-
sal of his prior judgment, he was presumptively disquali-
fied from continuing with the case.
The petitioner argued that this court’s remand order
required a new evidentiary hearing and argued that the
matter should be heard and decided by a different judge.
The petitioner’s attorney stated that the petitioner
would not waive his right to have the matter heard by a
different judge. The respondent argued that this court’s
remand order did not require a new evidentiary hearing,
but merely a decision to be made on the basis of the
evidence already in the record. Further, the respondent
argued that, because Judge Sferrazza had not yet
decided the specific factual issue set forth in this court’s
remand order, it was proper for him to hear and decide
the matter. Thereafter, on August 11, 2014, Judge Sfer-
razza issued a memorandum of decision in which he
concluded that this court’s remand order did not require
a new evidentiary hearing. In relevant part, the court
stated: ‘‘The court and the parties have found this
remand order somewhat perplexing. The respondent
asserts that the Appellate Court’s order is in the nature
of an articulation order concerning the prejudice deter-
mination. Under this view, this court would simply
review the evidence adduced at the habeas hearing and
render a decision resolving the prejudice question.
‘‘The petitioner, on the other hand, argues that the
Appellate Court intended that a new evidentiary hearing
take place at which the parties could introduce evidence
not previously presented. He also contends that General
Statutes § 51-183c would necessitate that a different
habeas judge preside over the new evidentiary hearing.’’
The court went on to conclude that the respondent’s
interpretation of the order was more logical. Among
the reasons it set forth for its interpretation of this
court’s remand order, the court observed that the order
did not explicitly mandate a new hearing, but merely
necessitated further proceedings. Accordingly, with
respect to the prejudice issue before the court, it
directed the parties to submit supplemental briefs
‘‘based on the evidence previously admitted . . . .’’
On August 15, 2014, the petitioner filed a motion for
review of Judge Sferrazza’s decision with this court.
The respondent opposed the motion. This court dis-
missed the motion on the ground that the issues raised
therein were not subject to interlocutory review.4
On September 24, 2014, the petitioner filed a motion
for recusal in which he brought into focus some of
the arguments he had raised at the previous hearing
concerning this court’s remand order.5 Relying on § 51-
183c6 and Practice Book § 1-22 (a),7 the petitioner
argued that, following this court’s reversal of the prior
judgment, Judge Sferrazza was prohibited from retrying
the case on remand. Additionally, relying on rule 2.11
(a)8 of the Code of Judicial Conduct, the petitioner
argued that recusal was warranted because Judge Sfer-
razza’s impartiality during the proceedings on remand
might reasonably be questioned. The petitioner, first
noting that, in his prior decision, Judge Sferrazza, sua
sponte, had applied the doctrine of deliberate bypass
in the respondent’s favor and, in the context of rejecting
the petitioner’s claim against habeas counsel, had
rejected the petitioner’s argument that Moore had per-
formed deficiently in connection with the plea
agreement, argued: ‘‘It is difficult to conceive that the
trial court will be able to render a finding that [the
petitioner] was prejudiced by conduct that, on the same
record, the trial court did not find to be deficient, and
afford [the petitioner] the requested relief. In order to
preserve the appearance of impartiality and [the peti-
tioner’s] constitutional rights to a fair trial, this court
should recuse itself.’’
In his memorandum of decision denying the petition-
er’s motion for recusal, Judge Sferrazza stated in rele-
vant part: ‘‘The court discerns no cogent reason for
recusal. . . . [T]his court has construed the remand
order to compel the court to issue findings and rulings
pertinent to the prejudice component of [Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984)] without the taking of additional evi-
dence. It would be impossible for a different judge to
fulfill that mandate. This would fly in the teeth of the
Appellate Court’s remand order.
‘‘More importantly, the mere fact that a trial court
has ruled against a party on one aspect of a case and
that ruling was reversed on appeal fails to implicate
General Statutes § 51-183c. The Appellate Court did not
order a new trial, nor did it reverse this court as to the
prejudice prong of Strickland.’’ (Emphasis in original.)
The court, relying on Taft v. Wheelabrator Putnam,
Inc., 255 Conn. 916, 763 A.2d 1044 (2000), and State v.
Santiago, 245 Conn. 301, 715 A.2d 1 (1998), concluded
that recusal was not required by the Code of Judicial
Conduct. The court stated in relevant part: ‘‘The present
case, on remand, involves no new evidence. Although
it is not an articulation order, which compels a trial
court to explain the conclusion it reached previously,
the remand order is in the nature of an articulation of
a previously undecided matter. . . . [R]eversal of a
judge’s decision on one, limited issue in a case does
not disqualify the judge from further participation with
respect to other aspects of the case despite having the
salutary experience of being overturned by a higher
tribunal.’’
After the court ruled on the motion for recusal, both
the petitioner and the respondent filed briefs with
respect to the issue set forth in this court’s remand
order. The respondent objected to any attempt by the
petitioner to rely on matters that were outside of the
evidence that had been admitted at the petitioner’s
habeas trial.
In his written memorandum of decision of November
17, 2014, which is the subject of this appeal, Judge
Sferrazza stated: ‘‘Because the remand order [of the
Appellate Court] lacks clarity in some respects, a con-
troversy had arisen as to whether the Appellate Court
intended to require an entirely new habeas trial, before
a different habeas judge, limited to adjudicating the
prejudice issue, or simply was returning the matter to
this court to make findings and draw conclusions as to
prejudice utilizing the prejudice test . . . based on the
evidence previously admitted. This court resolved that
conundrum . . . holding that the Appellate Court
meant for this court to supplement its original decision
by determining those factual issues as to prejudice,
which were previously unaddressed [in its prior
decision].’’
In its memorandum of decision, the court set forth
several findings concerning Moore that it had set forth
in its prior memorandum of decision addressing the
merits of the petition for a writ of habeas corpus.
Although it is unnecessary for us to set forth these
findings in detail, we observe that the court once again
set forth a generally positive assessment of Moore’s
performance with respect to the plea offer. The habeas
court found that Moore advised the petitioner of the
status of the plea offer made by the trial court, ‘‘thor-
oughly reviewed’’ the evidence and possible witnesses,
discussed matters related to the plea negotiations, and
cautioned the petitioner that ‘‘a jury might find the
prosecution’s case persuasive despite his denials of par-
ticipation in the drive-by shooting’’ at issue in the case.
The petitioner, who received a sentence of thirty-five
years of incarceration, attempted to demonstrate that,
with proper counsel from Moore, it is reasonably likely
that he would have accepted a plea offer that would
have required him to serve fourteen years, execution
suspended after nine years. The court found: ‘‘At no
time did the petitioner express any interest in accepting
a plea disposition which entailed more than six years
incarceration. At the habeas trial, the petitioner averred
that, had Moore recommended that he agree to the plea
offer as being in his best interest, he would have readily
changed his plea and accepted the sentence indicated,
namely, fourteen years, execution suspended after the
service of nine years.’’ After observing that this court
had determined that Moore had performed deficiently
for failing to provide the petitioner with professional
advice and assistance, including her evaluation of the
plea offer, the habeas court observed that the petitioner
had not presented any expert evidence to support that
determination. The court also observed that Neary had
testified that Moore had ‘‘handled the petitioner’s crimi-
nal matter properly . . . .’’
The court went on to conclude that the petitioner
failed to establish by a preponderance of the evidence
that there was a reasonable likelihood that he would
have accepted the proposed disposition and given up
his right to a jury trial had Moore advised him that
accepting the offer was in his best interest. Among
the findings made by the court with respect to this
determination, the court found that the petitioner had
believed that his codefendants planned on retracting
their statements implicating him in the crimes, the peti-
tioner had consented to Neary omitting allegations of
ineffective assistance of counsel claims against Moore
in the context of prior habeas matters, and that the
petitioner had ‘‘acknowledged that he never inquired
of Moore as to what he should do, nor about her lack
of recommendation [with respect to the plea offer].’’
After observing that the petitioner had a lengthy crimi-
nal history and a familiarity with the criminal court
system, the court stated: ‘‘If the petitioner was irresolute
in his desire to go to trial, unless the plea offer was
reduced to six years imprisonment, one would have
expected him to request Moore’s opinion as to his best
course of action or know the reason why she declined
to afford him the benefit of that opinion.’’ On the basis
of its findings, the court denied the amended petition
for a writ of habeas corpus. This appeal followed.
I
First, we address the petitioner’s claim that the court
improperly denied his motion for recusal. We agree
with the petitioner’s claim.
Before this court, the petitioner reiterates the argu-
ments that he raised before Judge Sferrazza, as set forth
previously in this opinion. Thus, the petitioner relies
on the undisputed procedural history of this case as
well as § 51-183c, Practice Book § 1-22 (a), and rule
2.11 (a) of the Code of Judicial Conduct.
The issue of whether § 51-183c required Judge Sfer-
razza’s recusal in the present case is an issue of statu-
tory interpretation over which we exercise plenary
review. See, e.g., State v. Smith, 317 Conn. 338, 346, 118
A.3d 49 (2015). ‘‘The process of statutory interpretation
involves the determination of the meaning of the statu-
tory language as applied to the facts of the case, includ-
ing the question of whether the language does so apply.
. . . In seeking to determine [the] meaning [of a stat-
ute], General Statutes § 1-2z directs us first to consider
the text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered. . . . When a statute is
not plain and unambiguous, we also look for interpre-
tive guidance to the legislative history and circum-
stances surrounding its enactment, to the legislative
policy it was designed to implement, and to its relation-
ship to existing legislation and common law principles
governing the same general subject matter . . . . The
test to determine ambiguity is whether the statute, when
read in context, is susceptible to more than one reason-
able interpretation.’’ (Internal quotation marks omit-
ted.) Efstathiadis v. Holder, 317 Conn. 482, 486–87, 119
A.3d 522 (2015).
The mandate of § 51-183c, a subject of prior judicial
interpretation, is plain and unambiguous. It provides in
relevant part: ‘‘No judge of any court who tried a case
without a jury . . . in which the judgment is reversed
by the Supreme Court, may again try the case. . . .’’
General Statutes § 51-183c. Our rules of practice give
effect to this statutory right by providing in relevant
part: ‘‘A judicial authority shall, upon motion of either
party or upon its own motion, be disqualified from act-
ing in a matter if such judicial authority is disqualified
from acting therein . . . because the judicial authority
previously tried the same matter and . . . the judg-
ment was reversed on appeal. . . .’’ Practice Book § 1-
22 (a).
‘‘[Section] 51-183c, by its plain terms, applies . . .
to judges.’’ State v. AFSCME, Council 4, Local 1565,
249 Conn. 474, 480, 732 A.2d 762 (1999). ‘‘The statute
explicitly prohibits a judge who tries a case that is
thereafter reversed to try the case on remand. There is
no reasonable manner in which the language of the
statute can be interpreted to yield a different result.’’
Gagne v. Vaccaro, 133 Conn. App. 431, 437, 35 A.3d 380
(2012), rev’d on other grounds, 311 Conn. 649, 90 A.3d
196 (2014). ‘‘Furthermore, we have narrowly construed
§ 51-183c to apply solely to trials and not to all types
of adversarial proceedings. . . . Section 51-183c does
not apply to pretrial or short calendar proceedings.’’
(Citation omitted; internal quotation marks omitted.)
Board of Education v. East Haven Education Assn.,
66 Conn. App. 202, 216, 784 A.2d 958 (2001) (declining
to extend § 51-183c to arbitration process); see also
Lafayette Bank & Trust Co. v. Szentkuti, 27 Conn. App.
15, 19, 603 A.2d 1215 (1991) (‘‘[s]ection 51-183c unam-
biguously applies exclusively to ‘trials,’ as distinguished
from pretrial or short calendar matters’’), cert. denied,
222 Conn. 901, 606 A.2d 1327 (1992).
Consistent with the arguments advanced by the
respondent, Judge Sferrazza reasoned that recusal was
not warranted because, in his prior decision, he had
not made any findings concerning prejudice and, thus,
this court had not reversed his prior judgment on the
basis of such findings. Judge Sferrazza also reasoned
that recusal was not warranted because he viewed this
court’s reversal as relating to only one aspect of his
decision. Likewise, the respondent urges us to conclude
that § 51-183c does not apply because this court’s
rescript expressly stated that the habeas court’s judg-
ment was ‘‘reversed in part . . . .’’ Barlow v. Commis-
sioner of Correction, supra, 150 Conn. App. 804.
Neither the court nor the respondent has advanced
any authority in support of their narrow interpretation
of § 51-183c, and we are unaware of any such authority.
The statute broadly applies to judges who have tried
cases without a jury in which their judgment later is
‘‘reversed.’’ The statute does not restrict its application
to cases in which issues to be considered on remand
are identical to those that already had been decided by
the trial judge. The reversal in the present case followed
a trial, and pertained to the same general claim that
was before the court during the proceedings on remand,
namely, whether, under the proper standard, his trial
counsel’s deficient performance prejudiced the peti-
tioner, thereby depriving him of his right to a fair trial.
The habeas court’s prior judgment dismissed the peti-
tioner’s petition with respect to the claim that Moore
had rendered ineffective assistance and denied his
claim that prior habeas counsel had rendered ineffec-
tive assistance. It appears that this court reversed the
judgment in part, rather than in its entirety, because
it was able to dispose of the appeal without reaching
the merits of all of the claims set forth therein, including
the claim challenging that portion of the habeas court’s
judgment in which it denied the petition. Specifically,
this court explained that, in light of its resolution of
the petitioner’s claim that the habeas court improperly
had dismissed the petition with respect to his claim
concerning Moore’s representation as to the plea offer,
it did not need to consider the claim that the habeas
court improperly had denied the petition with respect
to his claim that prior habeas counsel had rendered
ineffective assistance. Barlow v. Commissioner of Cor-
rection, supra, 150 Conn. App. 783 n.1.
Judge Sferrazza tried the petitioner’s habeas case and
rendered a judgment that, in part, was reversed by this
court. Although this court did not specify in its remand
order that a different judge should hear the case on
remand, the requirement imposed by § 51-183c nonethe-
less applied to the proceedings on remand. This court,
in either its prior decision or remand order, did not
include any language that suggested that Judge Sfer-
razza should hear the case on remand, the purpose of
which was not to determine whether error occurred,
but to correct error. Cf. State v. Douglas, 10 Conn. App.
103, 119, 522 A.2d 302 (1987); see also State v. Gonzalez,
186 Conn. 426, 436 n.7, 441 A.2d 852 (1982). It is of no
consequence to the proper application of the statute
that the remand order required consideration of an issue
in the case that Judge Sferrazza had yet to resolve on its
merits or that the prior judgment had not been reversed
with respect to Judge Sferrazza’s resolution of that unre-
solved issue of fact. In order for the petitioner to prevail
on the issue of prejudice, the habeas court, on remand,
would have to substitute the decision of the Appellate
Court in place of its own prior decision, and to change
not only the reasoning or basis of its prior decision,
but the decision itself, which held that trial counsel’s
conduct was not deficient. See State v. Lafferty, 191
Conn. 73, 76, 463 A.2d 238 (1983) (on remand trial court
must proceed in conformity with views expressed in
reviewing court’s opinion).
Because we conclude that recusal was warranted
under § 51-183c and Practice Book § 1-22 (a), we need
not address the petitioner’s alternative argument that
recusal was warranted under rule 2.11 (a) of the Code
of Judicial Conduct. Rule 2.11 (a) of the Code of Judicial
Conduct provides in relevant part that ‘‘[a] judge shall
disqualify himself or herself in any proceeding in which
the judge’s impartiality might reasonably be ques-
tioned . . . .’’
Although we need not resolve the petitioner’s alterna-
tive argument that the court did not properly consider
the application of rule 2.11 (a) in the present case,
we observe that, from an early stage in the remand
proceedings, Judge Sferrazza expressed his uncertainty
with respect to this court’s remand order, including the
issue of whether it was proper for him to hear the case
on remand. He afforded the parties an ample opportu-
nity to address the issue of his presumptive disqualifica-
tion under § 51-183c. Judge Sferrazza’s decision reflects
that because he concluded, albeit erroneously, that his
participation in the proceedings on remand was
required by this court’s remand order,9 he logically
rejected the petitioner’s argument that his participation
in the proceedings on remand gave rise to a reasonable
question concerning his impartiality.10
The respondent is unable to demonstrate that Judge
Sferrazza’s failure to recuse himself from the case on
remand was harmless error. We conclude that the
proper remedy is to reverse the judgment denying the
petition for a writ of habeas corpus and to remand the
case to the habeas court, so that the issue set forth in
this court’s prior remand order may be tried by
another judge.
II
Although we have concluded in part I of this opinion
that the judgment must be reversed and we remand the
case to the habeas court, we shall address the petition-
er’s claim that the habeas court improperly denied his
request for a new evidentiary hearing because that issue
is likely to arise during the proceeding on remand. See
State v. Tabone, 292 Conn. 417, 431, 973 A.2d 74 (2009)
(addressing issue likely to arise on remand). We agree
with the petitioner.
As we have explained previously in this opinion, this
court’s remand order stated in relevant part: ‘‘The judg-
ment is reversed in part and the case is remanded for
further proceedings on the issue of whether the peti-
tioner was prejudiced by counsel’s deficient perfor-
mance.’’ (Emphasis added.) Barlow v. Commissioner of
Correction, supra, 150 Conn. App. 804. Judge Sferrazza
invited the parties to address the issue of whether he
should hold a hearing on remand. When the parties first
appeared before the court to discuss the nature of the
proceedings on remand, the petitioner represented that
he wished to present additional evidence to the court,
even specifying the nature of some of the additional
evidence he intended to present.11 In declining this
request, the court appears to have been persuaded by
the fact that the remand order did not explicitly man-
date a new hearing. Agreeing with the respondent’s
interpretation of the remand order, the court viewed
its role as being in the nature of providing an articula-
tion. Thus, the court ordered the parties to brief the
prejudice issue solely on the basis of the evidence pre-
viously submitted to the court.
‘‘Determining the scope of a remand is a matter of
law because it requires the trial court to undertake a
legal interpretation of the higher court’s mandate in
light of that court’s analysis. . . . Because a mandate
defines the trial court’s authority to proceed with the
case on remand, determining the scope of a remand is
akin to determining subject matter jurisdiction. . . .
We have long held that because [a] determination
regarding a trial court’s subject matter jurisdiction is a
question of law, our review is plenary. . . .
‘‘Well established principles govern further proceed-
ings after a remand by this court. In carrying out a
mandate of this court, the trial court is limited to the
specific direction of the mandate as interpreted in light
of the opinion . . . . This is the guiding principle that
the trial court must observe. . . . The trial court should
examine the mandate and the opinion of the reviewing
court and proceed in conformity with the views
expressed therein. . . . These principles apply to crim-
inal as well as to civil proceedings. . . . The trial court
cannot adjudicate rights and duties not within the scope
of the remand. . . . It is the duty of the trial court
on remand to comply strictly with the mandate of the
appellate court according to its true intent and meaning.
No judgment other than that directed or permitted by
the reviewing court may be rendered, even though it
may be one that the appellate court might have
directed. . . .
‘‘We have also cautioned, however, that our remand
orders should not be construed so narrowly as to pro-
hibit a trial court from considering matters relevant to
the issues upon which further proceedings are ordered
that may not have been envisioned at the time of the
remand. . . . So long as these matters are not extrane-
ous to the issues and purposes of the remand, they
may be brought into the remand hearing.’’ (Citations
omitted; emphasis in original; internal quotation marks
omitted.) State v. Brundage, 320 Conn. 740, 747–48,
A.3d (2016); accord Higgins v. Karp, 243 Conn.
495, 502–503, 706 A.2d 1 (1998); Halpern v. Board of
Education, 231 Conn. 308, 313, 649 A.2d 534 (1994).
The narrow issue presented in the present claim is
whether the habeas court properly construed the
remand order such that it was akin to a request for
articulation, and therefore did not permit the presenta-
tion of additional admissible evidence relevant to the
issue submitted to the habeas court for its resolution.
The remand order required ‘‘further proceedings,’’ thus
using a broad phrase that does not preclude an eviden-
tiary hearing. Nothing in the remainder of the remand
order, as interpreted in light of the opinion, limited the
habeas court to consider only the evidence that had
been admitted in the context of the prior proceeding.
Moreover, it was not appropriate for the court to
construe the order as being in the nature of an articula-
tion request. As the court did not make findings with
respect to prejudice in its prior opinion, there were no
relevant findings for the court to explain. If this court
had determined that it was appropriate for the habeas
court merely to make a finding with respect to the issue
of prejudice on the basis of the evidence in the record,
it would not have ordered ‘‘further proceedings,’’ for
that purpose, but merely would have instructed the
court to articulate with respect to that limited factual
issue that had been litigated by the parties at the first
habeas trial. Further, it is not reasonable to construe
the remand order as a request for articulation because,
in the context of an articulation, the court is unable to
alter any of its original findings. An articulation request
is appropriate if ‘‘the trial court has failed to state the
basis of a decision . . . to clarify the legal basis of a
ruling . . . or to ask the trial [court] to rule on an
overlooked matter.’’ (Internal quotation marks omit-
ted.) Dickinson v. Mullaney, 284 Conn. 673, 680, 937
A.2d 667 (2007). None of these circumstances existed
in the present case, in which, because of this court’s
resolution of the petitioner’s appeal, it became neces-
sary for the court to resolve the factual issue related
to prejudice. ‘‘It is well established that a trial court
may not alter its initial findings by way of a further
articulation . . . . [A]n articulation is not an opportu-
nity for a trial court to substitute a new decision [or]
to change the reasoning or basis of a prior decision
. . . .’’ (Citations omitted; internal quotation marks
omitted.) Sosin v. Sosin, 300 Conn. 205, 240, 14 A.3d
307 (2011).
Typically, the next step in our analysis would be to
consider whether the court’s failure to afford the parties
an opportunity to present evidence was harmful; Hig-
gins v. Karp, supra, 243 Conn. 506; we need not reach
that issue, as it relates to a proper remedy in light of
our resolution of the issue in part I of this opinion, which
leads us to remand the case for further proceedings.
We have addressed the present claim to clarify, for
purposes of those further proceedings, that this court’s
prior remand order did not preclude an evidentiary
hearing. Because the present case will be remanded to
a different habeas court judge for further proceedings
related to the issue of prejudice under Strickland, we
anticipate that a hearing will be conducted during which
the petitioner will be afforded an opportunity to present
evidence with respect to the issue of prejudice.
The judgment is reversed and the case is remanded
to the habeas court for a hearing before a different judge
for the purpose of determining the issue of prejudice in
accordance with this opinion.
In this opinion the other judges concurred.
1
Because our resolution of the petitioner’s first claim is dispositive of
the appeal, we need not address his third claim. We will address his second
claim because the issue involved therein is likely to arise during the proceed-
ings on remand.
2
Specifically, the petitioner alleged: ‘‘Trial counsel’s representation with
regard to the plea bargain offer was ineffective in the following ways:
‘‘a. counsel failed to advise the petitioner that the offer was a one-time
offer and if not accepted immediately it would be withdrawn;
‘‘b. counsel failed to explain the court’s position regarding the offer;
‘‘c. counsel failed to explain that the court would not accept a counteroffer
from the petitioner;
‘‘d. counsel failed to return to the lockup and advise the petitioner that
the court rejected his counteroffer so that the petitioner would have an
opportunity to accept the court’s offer;
‘‘e. counsel failed to provide a meaningful explanation of the plea offer
extended by the court;
‘‘f. counsel failed to advise the petitioner as [to] the benefits of accepting
the court’s offer;
‘‘g. counsel failed to recommend the petitioner accept a beneficial offer;
‘‘h. counsel failed to request [that] the court continue the case to give the
petitioner an opportunity to consider the offer and/or discuss the offer with
family before the court withdrew the offer;
‘‘i. counsel failed to discuss the strength of the state’s case and evidence
before the plea offer was withdrawn;
‘‘j. counsel failed to advise the petitioner of the mandatory minimums,
maximum sentences of each separate offense and the effect of consecu-
tive sentences;
‘‘k. counsel failed to ensure [that] the petitioner had an opportunity to
accept the court’s offer after he was fully advised of all implications, legal
and otherwise.’’
3
The petitioner alleged: ‘‘Trial counsel’s representation with regard to
trial was ineffective in the following ways:
‘‘a. counsel failed to visit the petitioner in jail to discuss the state’s evi-
dence, the strength of the state’s case, the defenses which could be presented
and evidence which could be presented in defense of the case;
‘‘b. counsel failed to keep [the] petitioner informed as to the status of
the case;
‘‘c. counsel failed to communicate with [the] petitioner either in writing
or by telephone;
‘‘d. counsel failed to advise the petitioner of the specific elements of each
crime charged and the maximum and minimum penalties which could be
imposed if convicted;
‘‘e. counsel failed to meet with potential witnesses prior to trial;
‘‘f. counsel failed to request [that] the physical evidence be examined by
the state forensics laboratory;
‘‘g. counsel failed to develop any theory of defense for trial;
‘‘h. counsel failed to file a motion in limine to prevent testimony about
statements allegedly made by the petitioner to police officers;
‘‘i. counsel failed to do any investigation prior to trial.’’
4
As a result, this court’s ruling on the motion for review did not assist in
resolving the issues raised by Judge Sferrazza concerning the remand order.
5
Attached to the motion was an affidavit from the petitioner’s counsel,
Aaron J. Romano, in which he averred in relevant part that the motion was
made in good faith and in furtherance of the petitioner’s constitutional rights.
6
General Statutes § 51-183c, entitled, ‘‘Same judge not to preside at new
trial,’’ provides: ‘‘No judge of any court who tried a case without a jury in
which a new trial is granted, or in which the judgment is reversed by the
Supreme Court, may again try the case. No judge of any court who presided
over any jury trial, either in a civil or criminal case, in which a new trial is
granted, may again preside at the trial of the case.’’
7
Practice Book § 1-22 (a) provides in relevant part: ‘‘A judicial authority
shall, upon motion of either party or upon its own motion, be disqualified
from acting in a matter if such judicial authority is disqualified from acting
therein pursuant to Rule 2.11 of the Code of Judicial Conduct or because
the judicial authority previously tried the same matter and a new trial was
granted therein or because the judgment was reversed on appeal. . . .’’
8
Rule 2.11 (a) of the Code of Judicial Conduct provides in relevant part:
‘‘A judge shall disqualify himself or herself in any proceeding in which the
judge’s impartiality might reasonably be questioned . . . .’’
9
The record reflects that Judge Sferrazza also based his decision, in part,
on his belief that this court’s remand order precluded him from considering
additional evidence. As we discuss in part II of this opinion, we disagree
with this construction of the order.
10
In resolving the recusal issue, Judge Sferrazza relied on Taft v. Wheela-
brator Putnam, Inc., supra, 255 Conn. 916, and State v. Santiago, supra,
245 Conn. 340–41 n.25. Having reviewed these authorities, we conclude that
neither of them governs the outcome of the recusal issue before us. In Taft,
our Supreme Court did not set forth any analysis, let alone a holding, related
to the issue of a trial court’s involvement in a case on remand following a
reversal of its judgment by a reviewing court. It does not appear that such
issue was raised or considered in Taft. In Santiago, our Supreme Court
reversed the judgment of a trial court with respect to its decision not to
conduct a more extensive inquiry into a postverdict allegation of juror
misconduct, and remanded the case for further proceedings. State v. Santi-
ago, supra, 340. On the basis of certain findings by the trial court, the
defendant raised a concern with respect to the court’s impartiality on remand
and claimed that a different trial judge should handle the case on remand.
Id., 340–41 n.25. Our Supreme Court stated that the findings at issue ‘‘[did]
not render the court biased and [were not a] bar to conducting the necessary
further inquiry on remand.’’ Id., 341 n.25. In its brief discussion of this issue,
the court did not refer to § 51-183c or Practice Book § 1-22 (a). We observe
that the court did not remand the case for a new trial on the merits of the
case, but for further proceedings related to an allegation of juror misconduct.
As opposed to a new trial, such a proceeding is more like a sentencing
hearing, a hearing related to pretrial matters, or a short calendar hearing—
proceedings to which § 51-183c does not apply. See, e.g., State v. Miranda,
260 Conn. 93, 131, 794 A.2d 506 (§ 51-183c does not apply to sentencing
hearings), cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002);
Board of Education v. East Haven Education Assn., supra, 66 Conn. App.
216 (§ 51-183c does not apply to pretrial hearings or short calendar hearings).
In light of the particular circumstances of that case and the issues that
would come before the court on remand, it determined prospectively that
the trial judge’s participation in the case on remand would not give rise to
an appearance of impartiality or bias. Its determination in this regard was
dispositive of the issue of the propriety of the trial court’s participation in the
case on remand. This court, however, did not make a similar determination in
its decision in the petitioner’s prior habeas appeal.
11
The petitioner argued that he had been assigned new counsel who
determined there was additional, available evidence bearing on the prejudice
inquiry that had not been presented at the first habeas trial. Both at the
hearing and in later submissions to the court, the petitioner explained that
he intended to present new evidence that included, but was not limited
to, transcripts from his criminal trial, expert testimony pertaining to trial
counsel’s plea advice, the arrest warrant for the petitioner, the mittimuses
reflecting the sentences received by the petitioner’s two codefendants, testi-
mony from the petitioner’s two codefendants, and the witness list from the
petitioner’s criminal trial. The petitioner attached some of this additional
evidence to his posttrial brief but, following an objection by the respondent,
the court declined to consider such materials.
Among the arguments advanced in his posttrial brief, the petitioner argued
that such evidence was relevant to proving that, if Moore had counseled
the petitioner adequately, he would have had accurate and relevant informa-
tion that would have affected his decision with respect to the plea. This
information, the petitioner argued, should have included an accurate assess-
ment of the strength of the state’s case. Additionally, the petitioner argued
that Moore failed to explain the error of the petitioner’s belief that the state’s
case would be significantly weakened if his two coconspirators decided not
to stand behind their written statements to the police, which implicated
themselves and the petitioner in the shootings, or if they decided not to
testify against him at his trial. The petitioner argued that competent advice
would have conveyed that, even if the coconspirators did not testify, it was
possible for the state to introduce their statements implicating the petitioner
under § 8-6 (4) of the Connecticut Code of Evidence as dual inculpatory
statements, made against the penal interests of the two codefendants and
the petitioner. In the event that the two codefendants testified contrary to
their incriminatory statements made to the police, the petitioner argued, it
was possible for the state to introduce the statements of the coconspirators
under the doctrine of State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert.
denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), which is codified
in § 8-5 (1) of the Connecticut Code of Evidence, or § 6-10 of the Connecticut
Code of Evidence. The petitioner also argued that, insofar as there was
evidence that his plea decision was based on his belief that he had an alibi
defense, Moore did not file a notice of alibi and, in any event, was unable
to present the testimony of witness that could have provided such a defense.
Moreover, the petitioner intended to demonstrate that Moore failed to assess
the ‘‘severe punishment’’ that he could expect following a conviction.