Barlow v. Commissioner of Correction

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ALISON BARLOW v. COMMISSIONER
OF CORRECTION
(AC 34925)
Beach, Bear and Sheldon, Js.*
Argued February 6—officially released June 10, 2014
(Appeal from Superior Court, judicial district of
Tolland, Sferrazza, J.)
Naomi T. Fetterman, assigned counsel, with whom,
on the brief, 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
BEAR, J. The petitioner, Alison Barlow, appeals from
the judgment of the habeas court dismissing in part and
denying in part his third petition for a writ of habeas
corpus. On appeal, the petitioner claims: (1) the court
erred in denying his claim that counsel for his second
habeas appeal, Christopher M. Neary, provided ineffec-
tive assistance by withdrawing the petitioner’s claims
of ineffective assistance of counsel concerning the peti-
tioner’s criminal trial attorney, Sheridan L. Moore; (2)
the court erred in dismissing his claim that Moore had
provided ineffective assistance by improperly conclud-
ing that the doctrine of deliberate bypass applied to bar
that claim; (3) Moore rendered deficient performance
during the petitioner’s criminal proceedings by failing
to advise the petitioner adequately regarding the court’s
plea offer; and (4) although the habeas court made
no findings concerning prejudice, we should presume
prejudice on the basis of the record and order that the
petition for a writ of habeas corpus be granted and
that the court be ordered to give the petitioner the
opportunity to plead guilty under the plea agreement
he previously was offered by the trial court. We agree
with the petitioner’s second and third claims, and, on
this basis, conclude that it is unnecessary to consider
his first claim. We do not agree with his fourth claim,
however, and thus conclude that the case must be
remanded to the habeas court for further findings on
the issue of prejudice.1 Accordingly, the judgment is
reversed in part, and the case is remanded to the
habeas court.
The record reveals the following relevant facts and
procedural history. The petitioner had been charged
with several serious crimes, including attempt to com-
mit murder and conspiracy to commit murder. He was
offered a ‘‘one time’’ plea deal by the court that included
a sentence of nine years to serve. The petitioner instead
wanted a deal that would require him to serve only six
years incarceration. The court informed him that the
deal it offered was good for one day only, after which
his case would be placed on the trial list. The petitioner
did not accept the court’s offer at that time. The offer,
however, ultimately remained in effect for approxi-
mately one year before it was withdrawn. The petitioner
was tried by a jury and found guilty of the charges. He
was given a total effective sentence of thirty-five years
incarceration.2 His conviction was upheld on appeal.
See State v. Barlow, 70 Conn. App. 232, 797 A.2d 605,
cert. denied, 261 Conn. 929, 806 A.2d 1067 (2002).
In his first habeas petition, the petitioner, initially
acting in a self-represented capacity, alleged that his
trial counsel, Moore, was ineffective, inter alia, in failing
to counsel him fully regarding the time limitation on the
availability of the trial court’s plea offer. His appointed
counsel, Peter Tsimbidaros, then amended the first
habeas petition and withdrew the ineffective assistance
claim concerning Moore. The first habeas petition was
not successful.
The petitioner, again initially acting in a self-repre-
sented capacity, filed a second habeas petition alleging
that Moore had been ineffective, and that Tsimbidaros
had been ineffective by withdrawing the claim concern-
ing Moore from the first habeas petition. Appointed
counsel, Neary, then filed an amended petition, with-
drawing those claims. This second habeas petition was
denied, and the habeas court, thereafter, denied the
petition for certification to appeal. We dismissed the
petitioner’s appeal from that judgment after concluding
that the court did not abuse its discretion in denying
the petition for certification to appeal. See Barlow v.
Commissioner of Correction, 131 Conn. App. 90, 26
A.3d 123, cert. denied, 302 Conn. 937, 28 A.3d 989 (2011).
The present appeal concerns the petitioner’s third
habeas petition. In it, he alleges that Moore was ineffec-
tive, and that Neary was ineffective in amending the
second habeas petition to withdraw his ineffective
assistance claims concerning Tsimbidaros and Moore.
The habeas court determined that the petitioner’s first
claim, which was based on the alleged ineffective assis-
tance of Moore, had been deliberately bypassed, and,
therefore, the court dismissed the first count of the
petition. As to the second count, the court determined
that the petitioner failed to prove that Neary had been
ineffective by withdrawing the claims concerning Tsim-
bidaros and Moore. In considering the claim concerning
Neary, however, the court necessarily examined
whether there was merit to the petitioner’s claim that
Moore had been ineffective. The court specifically
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 prosecu-
tion and defense cases, and the possible outcomes after
trial.’’ It also found that ‘‘Neary averred that he exam-
ined Moore’s performance for the petitioner’s defense
and found no basis for such an ineffective assistance
claim [concerning] her.’’ The court concluded that the
petitioner had failed to prove that ‘‘Moore was deficient
in any of the ways alleged . . . [or] that Attorney Neary
or Attorney Tsimbidaros rendered ineffective assis-
tance by withdrawing the claims [concerning] Moore
. . . .’’ Accordingly, the court denied the petition as to
the second count. The court granted certification to
appeal, and this appeal followed.
I
We first consider the petitioner’s claim that the court
improperly applied the doctrine of deliberate bypass to
his claim that Moore’s assistance was ineffective with
respect to the court’s plea offer. He argues that the
doctrine of deliberate bypass does not apply to ineffec-
tive assistance of counsel claims in habeas proceedings,
but that it applies only to claims that should have been
raised on direct appeal but were deliberately bypassed.
He further argues that the respondent, the Commis-
sioner of Correction, never raised this claim before the
habeas court and that our case law has established that
the deliberate bypass doctrine automatically becomes
inapplicable when a claim of ineffective assistance of
counsel is raised. The respondent argues that the doc-
trine applies in this instance because the petitioner
knowingly and voluntarily declined to pursue his claim
concerning Moore by permitting Neary to withdraw that
claim.3 The respondent also argued during appellate
oral argument that, although it neither raised nor argued
the doctrine of deliberate bypass before the habeas
court, the court was within its authority to raise the
doctrine sua sponte. We need not decide whether the
doctrine could apply in this instance because we con-
clude that the court improperly raised the doctrine
sua sponte.4
Practice Book § 23-30 (b) provides, in relevant part,
that the respondent’s return ‘‘shall allege any facts in
support of any claim of procedural default, abuse of
the writ, or any other claim that the petitioner is not
entitled to relief.’’ (Emphasis added.) In Fine v. Com-
missioner of Correction, 147 Conn. App. 136, 141, 81
A.3d 1209 (2013), we recently explained that the doc-
trine of deliberate bypass ‘‘historically has arisen in the
context of habeas petitions involving claims procedur-
ally defaulted at trial and on appeal. See Crawford v.
Commissioner of Correction, 294 Conn. 165, 186, 982
A.2d 620 (2009) (observing that since Jackson v. Com-
missioner of Correction, 227 Conn. 124, 132, 629 A.2d
413 [1993], our Supreme Court ‘consistently and broadly
has applied the cause and prejudice standard to trial
level and appellate level procedural defaults in habeas
corpus petitions’).’’
‘‘If the respondent claims that the petitioner should
have raised the issue [previously] . . . the claim [of
procedural default] must be raised in the return or it
will not be considered at the [habeas] hearing.’’
(Emphasis added.) W. Horton & K. Knox, 1 Connecticut
Practice Series: Connecticut Superior Court Civil Rules
(2013-2014 Ed.) Rule 23-30, official comments, p. 1031.
‘‘[T]he plain language of Practice Book § 23-30 (b)
requires the [respondent] to plead procedural default
in [the] return or [the respondent] will relinquish the
right to assert the defense thereafter. . . . [I]n Con-
necticut, although the petitioner has the burden of prov-
ing cause and prejudice . . . that burden does not arise
until after the respondent raises the claim of procedural
default in [the] return. . . . Because the respondent
did not plead procedural default as an affirmative
defense . . . the court could not find that the peti-
tioner was procedurally defaulted . . . .’’ (Citation
omitted; internal quotation marks omitted.) Ankerman
v. Commissioner of Correction, 104 Conn. App. 649,
654–55, 935 A.2d 208 (2007), cert. denied, 285 Conn.
916, 943 A.2d 474 (2008); see Milner v. Commissioner
of Correction, 63 Conn. App. 726, 733, 779 A.2d 156
(2001) (supporting and applying position of federal
habeas commentators that ‘‘petitioners generally need
not raise waiver and procedural default matter in their
initial pleading and briefs, because the burden to raise
and prove those defenses is on the [respondent]’’ [inter-
nal quotation marks omitted]).5
In the present case, the respondent did not claim in
the return that the petitioner had procedurally defaulted
(or that the doctrine of deliberate bypass was applica-
ble). Accordingly, we conclude that the court improp-
erly raised the doctrine of deliberate bypass sua sponte
and, therefore, that it erred in dismissing the petitioner’s
claim concerning Moore on this basis.6
II
We next consider the petitioner’s claim that Moore
rendered ineffective assistance of counsel during the
petitioner’s criminal proceedings. The petitioner argues
in relevant part that Moore’s ‘‘decision not to advise
[the petitioner], or any of her clients, with respect to
plea offers was motivated by her desire to avoid habeas
and grievance actions in which clients could claim that
they were coerced into pleading guilty. . . . This blan-
ket strategy was in no way formulated to benefit [the
petitioner], and, to the contrary, her self-imposed pro-
tective mechanism put [her] interests in conflict with
those of [the petitioner], who, as a defendant exercising
his right to counsel under the sixth amendment to the
United States constitution . . . expects to be coun-
seled . . . .’’ (Citation omitted.) The respondent con-
tends that Moore adequately advised the petitioner and
that she was not required to tell him whether to take
the plea. The respondent further argues that, although
Vazquez v. Commissioner of Correction, 123 Conn.
App. 424, 437–38, 1 A.3d 1242 (2010), cert. denied, 302
Conn. 901, 23 A.3d 1241 (2011), holds that specific rec-
ommendations may be required in certain situations,
in the current case, where Moore represented the peti-
tioner in 1997-98—long before Vazquez was decided—
her competency should be measured against the bench-
mark of competence at that time and not ‘‘under current
standards.’’7 We agree with the petitioner that Moore
rendered deficient performance to the petitioner con-
cerning the plea offer.
We begin with the applicable standard of appellate
review and the law governing ineffective assistance of
counsel claims. ‘‘The habeas court is afforded broad
discretion in making its factual findings, and those find-
ings will not be disturbed unless they are clearly errone-
ous. . . . The application of the habeas court’s factual
findings to the pertinent legal standard, however, pre-
sents a mixed question of law and fact, which is subject
to plenary review. . . . Sastrom v. Mullaney, 286
Conn. 655, 661, 945 A.2d 442 (2008).
‘‘A finding of fact will not be disturbed unless it is
clearly erroneous in view of the evidence and pleadings
in the whole record . . . . As we have noted pre-
viously, however, when a question of fact is essential
to the outcome of a particular legal determination that
implicates a defendant’s constitutional rights, and the
credibility of witnesses is not the primary issue, our
customary deference to the trial court’s factual findings
is tempered by a scrupulous examination of the record
to ascertain that the trial court’s factual findings are
supported by substantial evidence. . . . [W]here the
legal conclusions of the court are challenged, [our
review is plenary, and] we must determine whether
they are legally and logically correct and whether they
find support in the facts set out in the memorandum
of decision . . . . State v. Mullins, 288 Conn. 345, 362–
63, 952 A.2d 784 (2008).’’ (Internal quotation marks
omitted.) State v. DeMarco, 311 Conn. 510, 519–20,
A.3d (2014); id., 520 (if credible witness’ ‘‘own testi-
mony as to what occurred is internally consistent and
uncontested by the defendant but, in fact, undercuts
the trial court’s ruling in favor of the state, a reviewing
court would be remiss in failing to consider it’’).8
‘‘A criminal defendant is constitutionally entitled to
adequate and effective assistance of counsel at all criti-
cal stages of criminal proceedings. . . . This right
arises under the sixth and fourteenth amendments to
the United States constitution and article first, § 8, of
the Connecticut constitution. . . . It is axiomatic that
the right to counsel is the right to the effective assis-
tance of counsel.’’ (Citations omitted; internal quotation
marks omitted.) Mozell v. Commissioner of Correction,
291 Conn. 62, 77, 967 A.2d 41 (2009). The United States
Supreme Court, long before its recent decisions in Mis-
souri v. Frye, U.S. , 132 S. Ct. 1399, 182 L. Ed.
2d 379 (2012), and Lafler v. Cooper, U.S. , 132
S. Ct. 1376, 182 L. Ed. 2d 398 (2012), recognized that
the two part test articulated in Strickland v. Washing-
ton, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
applies to ineffective assistance of counsel claims aris-
ing out of the plea negotiation stage. Hill v. Lockhart,
474 U.S. 52, 57, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985);
see also Missouri v. Frye, supra, 1405 (‘‘Hill established
that claims of ineffective assistance of counsel in the
plea bargain context are governed by the two-part test
set forth in Strickland’’).
‘‘Ninety-seven percent of federal convictions and
ninety-four percent of state convictions are the result
of guilty pleas. . . . The reality is that plea bargains
have become so central to the administration of the
criminal justice system that defense counsel have
responsibilities in the plea bargain process, responsibil-
ities that must be met to render the adequate assistance
of counsel that the Sixth Amendment 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. To a large extent . . . horse
trading [between prosecutor and defense counsel]
determines who goes to jail and for how long. That is
what plea bargaining is. It is not some adjunct to the
criminal justice system; it is the criminal justice system.
. . . In today’s criminal justice system, therefore, the
negotiation of a plea bargain, rather than the unfolding
of a trial, is almost always the critical point for a
defendant.
‘‘To note the prevalence of plea bargaining is not to
criticize it. The potential to conserve valuable prosecu-
torial resources and for defendants to admit their
crimes and receive more favorable terms at sentencing
means that a plea agreement can benefit both parties.
In order that these benefits can be realized, however,
criminal defendants require effective counsel during
plea negotiations. Anything less . . . might deny a
defendant effective representation by counsel at the
only stage when legal aid and advice would help him.’’
(Citations omitted; internal quotation marks omitted.)
Missouri v. Frye, supra, 132 S. Ct. 1407–1408; see also
Gonzalez v. Commissioner of Correction, 308 Conn.
463, 478–79, 68 A.3d 624, cert. denied sub nom. Dzure-
nda v. Gonzalez, U.S. , 134 S. Ct. 639, 187 L.
Ed. 2d 445 (2013).
Under the two part Strickland test, a petitioner
asserting a claim of ineffective assistance of counsel
must demonstrate both deficient performance and prej-
udice. Ledbetter v. Commissioner of Correction, 275
Conn. 451, 460, 880 A.2d 160 (2005), cert. denied sub
nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S. Ct. 1368,
164 L. Ed. 2d 77 (2006). The petitioner will meet his
burden by establishing that counsel’s performance ‘‘fell
below an objective standard of reasonableness’’; Strick-
land v. Washington, supra, 466 U.S. 688; and that ‘‘there
is a reasonable probability that, but for counsel’s unpro-
fessional errors, the result of the proceeding would
have been different.’’ Id., 694. Where, as here, a peti-
tioner rejects a plea offer, he must establish that ‘‘but for
the ineffective advice of counsel there is a reasonable
probability that the plea offer would have been pre-
sented to the court (i.e., that the defendant would have
accepted the plea and the prosecution would not have
withdrawn it in light of intervening circumstances), that
the court would have accepted its terms, and 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.’’ Lafler v. Coo-
per, supra, 132 S. Ct. 1385; see also Missouri v. Frye,
supra, 132 S. Ct. 1409.
When considering whether Moore’s performance was
deficient for failing to advise and assist the petitioner
concerning the court’s plea offer, the habeas court
explained: ‘‘Moore acknowledged that it was her prac-
tice never to recommend to a criminal defense client
to accept or reject a plea offer. She abstained from
doing so to avoid later claims of a coerced plea. In
particular, she made no recommendation to the peti-
tioner as to whether to accept or reject the nine year
offer. The question arises as to whether a practice
eschewing such a recommendation comports with
effective representation.
‘‘There is no per se requirement obligating defense
counsel to make such a recommendation. Edwards v.
Commissioner of Correction, 87 Conn. App. 517, 524–
25, [865 A.2d 1231] (2005); Vazquez v. Commissioner
of Correction, [supra, 123 Conn. App. 437–40]; Purdy v.
United States, 208 F.3d 41, 48 (2d Cir. 2000). ‘Counsel’s
conclusion as to how best to advise a client in order
to avoid, on the one hand, failing to give advice and,
on the other, coercing a plea enjoys a wide range of
reasonableness . . . .’ Vazquez v. Commissioner of
Correction, supra, 438. The need for recommendation
depends on ‘countless’ factors, such as ‘the defendant’s
chances of prevailing at trial, the likely disparity in
sentencing after a full trial as compared to a guilty
plea . . . whether [the] defendant has maintained his
innocence, and the defendant’s comprehension of the
various factors that will inform [the] plea decision.’ Id.
‘‘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. . . . [The court] also explained
to the petitioner this information. The proof of the peti-
tioner’s guilt hinged on the believability of a coconspira-
tor and circumstantial proof linking a weapon to the
petitioner, that is, conviction was not a foregone con-
clusion.
‘‘The cases which have found defense counsel want-
ing for failure to recommend acceptance of a plea offer
have typically involved hopeless cases where going to
trial was ‘suicidal’ and where the disparity between the
plea offer and the potential sentence after trial was
enormous. See., e.g., Boria v. Keane, 99 F.3d 492 (2d
Cir. 1996) [cert. denied, 521 U.S. 1118, 117 S. Ct. 2508,
138 L. Ed. 2d 1012 (1997)]. The circumstances of the
present case differ markedly from such a scenario.’’
The petitioner argues that the habeas court erred in
rendering its decision because Moore testified during
the habeas trial that she presented the court’s plea offer
to him without giving him any advice on that offer,
which, he argues, is constitutionally deficient perfor-
mance that reduces counsel’s role ‘‘to that of a mere
messenger . . . .’’ He further explains that the role of
an attorney is to give advice and counsel to a client,
especially in a criminal matter, and, in the present case,
Moore specifically testified that she refrained from giv-
ing any such advice, which the habeas court acknowl-
edged in its memorandum of decision. He further argues
that Moore’s testimony that she refrained from giving
him any advice about the plea offer in order to protect
herself demonstrated a clear conflict of interest in viola-
tion of rule 1.7 of the Rules of Professional Conduct9
and rendered her assistance deficient and ineffective.10
Although we agree with the habeas court that Moore
had no obligation in this case specifically to tell the
petitioner whether to take the court’s plea offer, we
conclude that she had an obligation to provide advice
and assistance to the petitioner regarding that plea
offer, which, she admittedly failed to do. Accordingly,
after our own scrupulous search of the record—Moore’s
credibility not being an issue in this case—we agree
with the petitioner that Moore’s performance concern-
ing the plea offer was deficient. See State v. DeMarco,
supra, 311 Conn. 519–20.
‘‘The decision whether to plead guilty or contest a
criminal charge is ordinarily the most important single
decision in any criminal case. . . . [C]ounsel may and
must give the client the benefit of counsel’s professional
advice on this crucial decision. . . . It is well-settled
that defense counsel have a constitutional duty to con-
vey any plea offers from the government and to advise
their clients on the crucial decision whether to accept
a plea offer. . . . A significant disparity between the
sentence the defendant might have received had he
[pleaded] guilty, and the sentence he received after
trial, provides objective evidence that a defendant was
prejudiced by his attorney’s failure to adequately inform
him of his plea options.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) Cardoza v.
Rock, 731 F.3d 169, 178–79 (2d Cir. 2013).
In Peterson v. Commissioner of Correction, 142
Conn. App. 267, 272–73, 67 A.3d 293 (2013), we recently
explained: ‘‘Although affirming a defendant’s constitu-
tional right to the effective assistance of counsel at the
plea negotiations stage of criminal proceedings, our
courts have nevertheless been reluctant to elaborate
on attorney behaviors that may or may not constitute
ineffectiveness. In Ebron v. Commissioner of Correc-
tion, 120 Conn. App. 560, 572, 992 A.2d 1200 (2010),
rev’d in part on other grounds, 307 Conn. 342, 53 A.3d
983 (2012), cert. denied sub nom. Arnone v. Ebron,
U.S. , 133 S. Ct. 1726, 185 L. Ed. 2d 802 (2013),
this court observed: ‘[P]lea bargaining is an integral
component of the criminal justice system and essential
to the expeditious and fair administration of our courts.
. . . Commentators have estimated that between 80
and 90 percent of criminal cases in Connecticut result
in guilty pleas, the majority of which are the product
of plea bargains. . . . Thus, almost every criminal
defendant is faced with the crucial decision of whether
to plead guilty or proceed to trial. Although this decision
is ultimately made by the defendant, the defendant’s
attorney must make an informed evaluation of the
options and determine which alternative will offer the
defendant the most favorable outcome. A defendant
relies heavily upon counsel’s independent evaluation
of the charges and defenses, applicable law, the evi-
dence and the risks and probable outcome of a trial.
. . . Indeed, the United States Court of Appeals for
the Second Circuit has described the decision to plead
guilty as ordinarily the most important single decision
in any criminal case. . . . Boria v. Keane, [supra, 99
F.3d 496–97]. It further stated that [e]ffective assistance
of counsel includes counsel’s informed opinion as to
what pleas should enter.’’ (Emphasis omitted; internal
quotation marks omitted.)
In Vazquez v. Commissioner of Correction, supra,
123 Conn. App. 437, we explained: ‘‘Prior to trial an
accused is entitled to rely upon his counsel to make an
independent examination of the facts, circumstances,
pleadings and laws involved and then to offer [an]
informed opinion as to what plea should be entered.
Determining whether an accused is guilty or innocent
of the charges in a complex legal indictment is seldom
a simple and easy task for a layman, even though acutely
intelligent. . . . A defense lawyer in a criminal case
has the duty to advise his client fully on whether a
particular plea to a charge appears to be desirable.’’
(Citation omitted; emphasis added; internal quotation
marks omitted.)
We further explained: ‘‘On the one hand, defense
counsel must give the client the benefit of counsel’s
professional advice on this crucial decision of whether
to plead guilty. . . . On the other hand, the ultimate
decision whether to plead guilty must be made by the
defendant. . . . And a lawyer must take care not to
coerce a client into either accepting or rejecting a plea
offer. . . . Counsel’s conclusion as to how best to
advise a client in order to avoid, on the one hand, failing
to give advice and, on the other, coercing a plea enjoys
a wide range of reasonableness because [r]epresenta-
tion is an art . . . and [t]here are countless ways to
provide effective assistance in any given case . . . .
Counsel rendering advice in this critical area may take
into account, among other factors, the defendant’s
chances of prevailing at trial, the likely disparity in
sentencing after a full trial as compared to a guilty plea
(whether or not accompanied by an agreement with
the government), whether [the] defendant has main-
tained his innocence, and the defendant’s comprehen-
sion of the various factors that will inform his plea
decision.’’ (Emphasis altered; internal quotation marks
omitted.) Id., 438.
After examining relevant case law, we conclude that a
crucial component of counsel’s effective representation
during plea negotiations is giving professional advice
to a defendant. See Cardoza v. Rock, supra, 731 F.3d
178–79; Boria v. Keane, supra, 99 F.3d 496; Peterson v.
Commissioner of Correction, supra, 142 Conn. App.
273; Vazquez v. Commissioner of Correction, supra,
123 Conn. App. 437; see also Model Code of Professional
Responsibility, Ethical Consideration 7-7 (1992);11 Rules
of Professional Conduct 2.1.12 Although the defendant
ultimately must decide whether to accept a plea offer
or proceed to trial, this critical decision, which in many
instances will affect a defendant’s liberty, should be
made by a represented defendant with the adequate
professional assistance, advice, and input of his or
her counsel. Counsel should not make the decision for
the defendant or in any way pressure the defendant to
accept or reject the offer, but counsel should give the
defendant his or her professional advice on the best
course of action given the facts of the particular case
and the potential total sentence exposure. See Cardoza
v. Rock, supra, 178 (‘‘defense counsel have a constitu-
tional duty to . . . advise their clients on the crucial
decision whether to accept a plea offer’’ [internal quota-
tion marks omitted]); Peterson v. Commissioner of Cor-
rection, supra, 273 (‘‘[A]lmost every criminal defendant
is faced with the crucial decision of whether to plead
guilty or proceed to trial. Although this decision is ulti-
mately made by the defendant, the defendant’s attorney
must make an informed evaluation of the options and
determine which alternative will offer the defendant
the most favorable outcome. A defendant relies heavily
upon counsel’s independent evaluation . . . .’’
[Emphasis added; internal quotation marks omitted.]);
Vazquez v. Commissioner of Correction, supra, 437
(‘‘[a] defense lawyer in a criminal case has the duty to
advise his client fully on whether a particular plea to
a charge appears to be desirable’’ [emphasis added;
internal quotation marks omitted]).
In the present case, there is no question that the
habeas court credited Moore’s testimony. During the
habeas trial, Moore testified that the state initially had
offered the petitioner a plea deal that required him to
serve fourteen years of an eighteen year sentence, but
that the court offered the petitioner a sentence of fifteen
years, suspended after nine years of incarceration. The
petitioner, however, wanted to serve only six years, and
he wanted to know what sentences his codefendants
would be getting before he decided on his course of
action. Moore also testified that, although the court
stated that the offer would be good only for that day,
the court actually kept the offer open until the start of
trial. Moore additionally testified during the habeas trial
that she refrained from giving the petitioner any advice
on the plea offer proposed by the court; she merely
gave him the facts of the offer, providing no assistance
or advice as he weighed his options.13 Additionally, the
trial court directly explained to the petitioner that he
was facing at least eighty-five years incarceration, and
it offered him a plea deal of fifteen years, execution
suspended after serving nine years. The petitioner indi-
cated that he was willing to accept a plea deal, but he
wanted only six years to serve, and he asked Moore to
try to negotiate that for him. Moore gave the petitioner
no professional assessment of the court’s offer of nine
years to serve in the context of the facts underlying the
charges against him and his potential total sentence
exposure.14 Ultimately, after not accepting the court’s
offer of nine years to serve, the petitioner went to trial,
was convicted, and received a sentence of thirty-five
years incarceration. We conclude that on the facts of
this case, Moore’s performance was deficient because
she did not give the petitioner her professional advice
and assistance concerning and her evaluation of the
court’s plea offer.
III
The petitioner next argues that, although the habeas
court made no findings concerning prejudice, we can
presume prejudice on appeal on the basis of the record.
He argues that the record clearly demonstrates that he
was willing to plead guilty because he made a counterof-
fer to the court, and it is reasonably probable that he
would have taken the court’s offer had counsel properly
advised him. He asks that we order that the petition
for a writ of habeas corpus be granted and that the
court be ordered to give the petitioner the opportunity
to plead guilty under the plea agreement he previously
was offered by the trial court. The respondent contends
that the record is inadequate to review the prejudice
prong of the Strickland analysis because the habeas
court made no findings as to prejudice. He argues, there-
fore, that we should affirm the judgment on the basis of
an inadequate record. In the alternative, the respondent
requests that we remand the case to the habeas court
for consideration of the Strickland prejudice prong.
The respondent argues that we cannot make the cred-
ibility determinations that are necessary in determining
whether the petitioner was prejudiced. He argues: ‘‘In
applying the three-pronged test for determining
whether Moore’s failure to make a specific recommen-
dation regarding [the trial court’s] plea offer prejudiced
the petitioner for Sixth Amendment purposes, the
[respondent] does not dispute that the record is suffi-
cient for this court to consider the prong that concerns
whether [the trial court] would have continued to
extend the offer after it was initially rejected by the
petitioner; Ebron [v. Commissioner of Correction, 307
Conn. 342, 352, 53 A.3d 983 (2012), cert. denied sub
nom. Arnone v. Ebron, U.S. , 133 S. Ct. 1726,
185 L. Ed. 2d 802 (2013)]; given [Moore’s] uncontested
testimony that the judge held the offer open until the
start of trial. . . . The [respondent] also does not dis-
pute that the record is adequate for this court to find,
pursuant to another prong of the test, that the offer[ed]
sentence of nine years to serve would have been less
severe than the thirty-five year total effective sentence
that the petitioner received as a result of his convictions
at trial. However, the record is lacking regarding the
final prong of the test, which is whether the petitioner
would have accepted the offer had [Moore] recom-
mended that he do so. The petitioner asserts that he
would have accepted the offer . . . [b]ut only the
habeas court, as the trier of fact, is in a position to
assess the petitioner’s believability on this matter and
make the necessary credibility determination . . . .’’
(Citations omitted.)
The petitioner contends that we can presume preju-
dice on the basis of the record because it is uncontested
that he was willing to take a plea deal because he asked
Moore to try to negotiate a deal that required him to
serve a term of six years, and he was not insisting on
going to trial. Citing Missouri v. Frye, supra, 132 S. Ct.
1409, he argues that in this case there is no need for a
credibility determination because he need not prove
that he would have accepted the court’s offer because
the standard set forth in Frye requires only that he
demonstrate a reasonable probability that he would
have accepted such offer. We agree with the respondent
that the habeas court is in the best position to determine
whether it is reasonably likely that the petitioner would
have accepted the offer had he received adequate advice
from Moore.
The judgment is reversed in part and the case is
remanded for further proceedings on the issue of
whether the petitioner was prejudiced by counsel’s defi-
cient 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 judg-
ment is reversed and the case is remanded with direc-
tion to grant the petition for a writ of habeas corpus.
In the event that the habeas court finds that the peti-
tioner 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.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
Because we conclude that the court improperly, sua sponte, raised the
issue of deliberate bypass and that the petitioner proved in the habeas court
that Moore’s performance was deficient concerning the plea offer, we also
conclude that we need not consider the issue of whether Neary’s perfor-
mance was deficient for failing to pursue the issue of Moore’s performance.
2
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.
3
We note that the petitioner argues in his reply brief that he did not
knowingly and voluntarily decline to pursue this claim and that this is
demonstrated by Neary’s testimony that he specifically told the petitioner
that such claims could be raised in a later habeas proceeding.
4
We offer no opinion on the status of the doctrine of deliberate bypass
in habeas proceedings alleging ineffective assistance of counsel, but we
note that our Supreme Court has most recently discussed that issue in
Crawford v. Commissioner of Correction, 294 Conn. 165, 180–90, 982 A.2d
620 (2009).
5
Reasonable prior written notice of and the opportunity to be heard
concerning a claim or defense are fundamental aspects of procedural due
process. See, e.g., Connolly v. Connolly, 191 Conn. 468, 475, 464 A.2d 837
(1983) (‘‘[t]he purpose of requiring written motions is not only the orderly
administration of justice; see Malone v. Steinberg, 138 Conn. 718, 721, 89
A.2d 213 [1952]; but the fundamental requirement of due process of law.
Winick v. Winick, [153 Conn. 294, 299, 216 A.2d 185 (1965)]’’).
6
Although the court dismissed the petition as it related to the ineffective
assistance claim concerning Moore, it nonetheless examined whether Moore
was ineffective when it reviewed the petitioner’s claims concerning former
habeas counsel, which alleged that they were ineffective for failing to pursue
ineffective assistance claims concerning Moore.
7
The respondent’s contention that in Vazquez we announced a new stan-
dard for counsel during plea negotiations has no merit. A similar argument
was made before the United States Court of Appeals for the Second Circuit
in Roccisano v. Menifee, 293 F.3d 51, 59 (2d Cir. 2002), when the petitioner
in that case argued that he could not have raised his claim that counsel did
not adequately advise him previously because the court had not yet decided
Boria v. Keane, 99 F.3d 492 (2d Cir. 1996), cert. denied, 521 U.S. 1118, 117
S. Ct. 2508, 138 L. Ed. 2d 1012 (1997). Specifically, the court explained:
‘‘Roccisano’s contention that he could not assert his present claim until he
learned of our decision in Boria is meritless, however, for the principle
applied in Boria, i.e., that the right to effective assistance of counsel encom-
passes the accused’s right to be informed by his attorney as to the relative
merits of pleading guilty and proceeding to trial, was hardly novel, having
been articulated clearly by the Supreme Court nearly a half-century earlier,
see Von Moltke v. Gillies, 332 U.S. 708, 721, 68 S. Ct. 316, 92 L. Ed. 309
(1948) ([p]rior to trial an accused is entitled to rely upon his counsel to
make an independent examination of the facts, circumstances, pleadings
and laws involved and then to offer his informed opinion as to what plea
should be entered).
‘‘In Boria, we applied this principle in holding that an attorney had ren-
dered constitutionally deficient assistance to the defendant by failing to
discuss with him the advisability of accepting or rejecting a proffered plea
bargain that would have resulted in a prison term of one-to-three years,
where the attorney felt it would be suicidal to go to trial and the defendant,
after going to trial, received a sentence of [twenty] years to life. See [Boria
v. Keane, supra, 99 F.3d 494–95]. We noted that although our own Court
had not previously been called upon to articulate the rule that an accused
is entitled to receive such advice, our holding was based principally on the
standards for claims of ineffective assistance of counsel set out more than
a decade earlier in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984), and on well established principles set forth in
American Bar Association (ABA) guidelines: While the Second Circuit may
not have spoken, the Strickland Court has indicated how the question should
be resolved. Just before starting its discussion of the merits, it observed
that it had granted certiorari to consider the standards by which to judge
a contention that the Constitution requires that a criminal judgment be
overturned because of the actual ineffective assistance of counsel. [Id.] 684
. . . . Later it pointed to [p]revailing norms of practice as reflected in
American Bar Association standards as guides to determining what is reason-
able. Id. [688] . . . .
‘‘The American Bar Association’s standard on the precise question before
us is simply stated in its Model Code of Professional Responsibility, Ethical
Consideration 7-7 (1992): A defense lawyer in a criminal case has the duty
to advise his client fully on whether a particular plea to a charge appears
to be desirable. . . . Boria [v. Keane, supra, 99 F.3d] 496 . . . .
‘‘Further, as recognized in Boria, the principle articulated by the Supreme
Court in Von Moltke in 1948 had been reiterated decades prior to Boria by
other circuit courts of appeals in Walker v. Caldwell, 476 F.2d 213, 224 (5th
Cir. 1973), and Jones v. Cunningham, 313 F.2d 347, 353 (4th Cir.), cert.
denied, 375 U.S. 832, 84 S. Ct. 42, 11 L. Ed. 2d 63 (1963), and by the district
court in which Roccisano was convicted and filed his 1991 and 1995 Motions,
see Boria [v. Keane, supra, 99 F.3d] 497 ([i]n United States v. Villar, 416
F. Supp. 887, 889 [S.D.N.Y. 1976], Judge Motley . . . made the following
observation about effective assistance of counsel: Effective assistance of
counsel includes counsel’s informed opinion as to what pleas should be
entered).
‘‘In sum, the principle that defense counsel in a criminal case must advise
his client of the merits of the government’s case, of what plea counsel
recommends, and of the likely results of a trial, was established long before
Roccisano was even prosecuted. Roccisano plainly was aware of the factual
basis for his present claim, knowing what counsel’s advice to him had been.
The fact that Boria had not yet been decided gave him no excuse for not
raising his present claim at least as early as his first [motion pursuant to
28 U.S.C. § 2255].’’ (Citations omitted; emphasis altered; internal quotation
marks omitted.) Roccisano v. Menifee, supra, 293 F.3d 59–60.
8
We find the language of State v. DeMarco, supra, 311 Conn. 520, to be
instructive: ‘‘[I]f, upon examination of the testimonial record, the reviewing
court discovers but one version of the relevant events upon which both the
state and the defendant agree, and such agreement exists both at trial and
on appeal, the reviewing court may rely on that version of events in evaluating
the propriety of the trial court’s determinations and determining whether
the trial court’s factual findings are supported by substantial evidence. In
a case where the trial court has concluded that the police action at issue
was justified and the undisputed version of events reflected in the transcript
was adduced by the state through testimony of the police officers, a
reviewing court’s reliance on that version of events is particularly appro-
priate. If the officers’ own testimony as to what occurred is internally consis-
tent and uncontested by the defendant but, in fact, undercuts the trial court’s
ruling in favor of the state, a reviewing court would be remiss in failing to
consider it.’’
Our Supreme Court in DeMarco was careful to insert a footnote stressing
that the finder of fact is free to credit parts of a witness’ testimony and to
reject other parts. See id., 520 n.4. That specific limitation leads us to believe
that the broad review approved in DeMarco is to be used sparingly and only
where the overall thrust of a witness’ testimony, relied upon by both parties,
is clear and unequivocal.
We believe that Moore’s testimony in the present case falls into that
narrow category. Her testimony, which we have carefully reviewed, was
clear and unequivocal. It was relied on by both sides, and credited by all
parties and by the habeas court. We conclude, then, that the circumstances
of the present case fit within the narrow exception recognized in DeMarco,
and that we may rely on facts apparent from Moore’s testimony, even though
not expressly found by the habeas court.
9
Rule 1.7 (a) of the Rules of Professional Conduct provides in relevant
part: ‘‘[A] lawyer shall not represent a client if the representation involves
a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client;
or (2) there is a significant risk that the representation of one or more
clients will be materially limited by the lawyer’s responsibilities to another
client, a former client or a third person or by a personal interest of the
lawyer.’’
10
The Rules of Professional Conduct, however, are not to be used as a
basis to determine that a legal duty has been breached: ‘‘Indeed, one of the
introductory provisions of the Rules of Professional Conduct expressly
provides that a ‘[v]iolation of a Rule should not give rise to a cause of action
nor should it create any presumption that a legal duty has been breached.
The Rules are designed to provide guidance to lawyers and to provide a
structure for regulating conduct through disciplinary agencies. They are not
designed to be a basis for civil liability. Furthermore, the purpose of the
Rules can be subverted when they are invoked by opposing parties as
procedural weapons. The fact that a Rule is a just basis for a lawyer’s
self-assessment, or for sanctioning a lawyer under the administration of a
disciplinary authority, does not imply that an antagonist in a collateral
proceeding or transaction has standing to seek enforcement of the Rule.
Accordingly, nothing in the Rules should be deemed to augment any substan-
tive legal duty of lawyers or the extra-disciplinary consequences of violating
such a duty.’ ’’ Biller Associates v. Peterken, 269 Conn. 716, 722–23, 849
A.2d 847 (2004).
11
Model Code of Professional Responsibility, Ethical Consideration 7-7
(1992), provides: ‘‘In certain areas of legal representation not affecting the
merits of the cause or substantially prejudicing the rights of a client, a
lawyer is entitled to make decisions on his own. But otherwise the authority
to make decisions is exclusively that of the client and, if made within the
framework of the law, such decisions are binding on his lawyer. As typical
examples in civil cases, it is for the client to decide whether he will accept
a settlement offer or whether he will waive his right to plead an affirmative
defense. A defense lawyer in a criminal case has the duty to advise his
client fully on whether a particular plea to a charge appears to be desirable
and as to the prospects of success on appeal, but it is for the client to decide
what plea should be entered and whether an appeal should be taken.’’
(Emphasis added.)
12
Rule 2.1 of the Rules of Professional Conduct provides: ‘‘In representing
a client, a lawyer shall exercise independent professional judgment and
render candid advice. In rendering advice, a lawyer may refer not only to
law but to other considerations such as moral, economic, social and political
factors, that may be relevant to the client’s situation.’’ (Emphasis added.)
13
Specifically, Moore testified as follows:
‘‘[The Petitioner’s Counsel]: Did you recommend to [the petitioner] that
he accept [the court’s] offer?
‘‘[Moore]: I don’t recommend that people take offers.
‘‘[The Petitioner’s Counsel]: You just convey the offer?
‘‘[Moore]: That’s correct.’’
***
‘‘[The Petitioner’s Counsel]: And just going back to April 21, 1997, you
had testified that the prosecutor wanted eighteen, suspended after fourteen.
The [court] offered fifteen, suspended after nine, and [the petitioner] said
he would take six.
‘‘[Moore]: Again, that’s what appears to have happened.
‘‘[The Petitioner’s Counsel]: So, you are only three years apart, correct?
‘‘[Moore]: . . . yes.
‘‘[The Petitioner’s Counsel]: And did you make any attempt to convince
[the petitioner] to go with the nine years that [the court] was offering?
‘‘[Moore]: As I indicated, I don’t convince my clients. I indicate what the
offer is. They tell me what they want or don’t want, and I relay that to
the judge.
‘‘[The Petitioner’s Counsel]: Okay. But based on the seventeen years [of]
experience you had at that time, do you tell them, here is what I think is
likely to happen, you should seriously consider taking this offer?
‘‘[Moore]: No, I don’t do that.’’
14
We note, in particular, the following colloquy:
‘‘[The Respondent’s Counsel]: Did you feel that his desire for [a] six year
sentence was realistic in light of the circumstances and his history?
‘‘[Moore]: I don’t think I had a feeling one way or the other. I felt that I
would relay the court’s offer to [the petitioner], [the petitioner] would tell
me what he wanted me to relay to the court, and I did that; I didn’t feel
one way or the other.
‘‘[The Respondent’s Counsel]: If a client says to you, you know, what is
the range that I can expect, how does what I desire fit into this? Do you
go over that with them?
‘‘[Moore]: Well, I don’t think I ever had a conversation like that with
my client.’’