Donald v. Commissioner of Correction

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RAVON DONALD v. COMMISSIONER
OF CORRECTION
(AC 44258)
Suarez, Clark and Sheldon, Js.
Syllabus
The petitioner, who had been convicted of several crimes in connection
with his involvement in an armed robbery and shooting, sought a writ
of habeas corpus, claiming, inter alia, that his trial counsel rendered
ineffective assistance by failing to adequately investigate his troubled
background and upbringing and to present that information as mitigation
evidence at the sentencing proceeding. The petitioner, who was nineteen
years old at the time of the robbery, was sentenced to seventy-five years
of imprisonment. He thereafter filed an application for sentence review
with the Sentence Review Division of the Superior Court. Before the start
of the habeas trial, the sentence review division granted the petitioner’s
application for a sentence reduction and concluded that the seventy-
five year sentence for nonhomicidal offenses was disproportionate and
should be reduced to a term of forty-five years. The petitioner thereafter
amended his habeas petition to allege that, had the mitigation evidence
been presented to the sentence review division, a reasonable probability
existed that he would have received a greater sentence reduction than
the thirty years that was ordered. The petitioner testified at the habeas
trial that he had been sexually abused as a child, had begun using illegal
drugs at age eleven and was consuming drugs and alcohol regularly by
age twelve. He testified that he had had little to no relationship with
his father, who was a drug user, and had been constantly exposed to
violence throughout his youth, during which he became a member of
a street gang and witnessed a friend being shot in the head. The petitioner
further stated that he had been diagnosed with behavioral and mental
health problems during his childhood and had experienced periods of
homelessness when he was not institutionalized in group homes and
mental health facilities for lengthy periods of time. D, a social worker,
who had reviewed the petitioner’s records from those facilities, con-
firmed substantial portions of his social history and testified about the
probable adverse effects of his childhood and upbringing on his behavior
as a young man. The habeas court analyzed the petitioner’s claim under
the test set forth in Strickland v. Washington (466 U.S. 668) for determin-
ing whether a petitioner received ineffective assistance and rendered
judgment denying the habeas petition. The court concluded that,
although the performance of the petitioner’s trial counsel at the sentenc-
ing proceeding was so paltry as to be tantamount to having had no
counsel at all, the petitioner failed to prove that he was prejudiced by
that deficient performance before the sentence review division because
he did not present evidence to show that the sentence review division
would have rendered a decision more favorable to him than the thirty
year reduction it ordered. The habeas court further concluded that it
could not review or alter the sentence review division’s determination
because that body’s decisions are final under the Sentence Review Act
(§ 51-194 et seq.). The court thereafter granted the petitioner certification
to appeal. Held:
1. The petitioner could not prevail on his claim that the state violated his
due process right to a fair trial by presenting false or misleading testi-
mony about its agreement with one of his alleged accomplices, H, to
testify against him and by failing to disclose material evidence concern-
ing the credibility of a police detective who led the investigation of the
armed robbery and shooting:
a. The record did not support the petitioner’s claim that the state prom-
ised H that his sentence would be reduced in exchange for his testimony,
as the habeas court found that H never indicated that he had been
promised any specific term of incarceration or number of years as a
sentence reduction, which was disclosed through his testimony.
b. Although the state failed to disclose the detective’s personnel records,
which indicated that he had a disciplinary record, there was no reason-
able probability that the outcome of the petitioner’s trial would have
been different had those records been disclosed; in the present case,
impeachment of the detective through the use of his disciplinary record
would not have overcome the overwhelming evidence that supported
the petitioner’s conviction, which included H’s testimony and a video
recording that showed the petitioner committing the crime.
2. Although the habeas court correctly required the petitioner to prove
under Strickland that he was prejudiced by his trial counsel’s deficient
performance, the judgment had to be reversed and the case remanded
for a new trial in light of the court’s erroneous determination that it
was barred from reviewing or granting relief from the sentence review
division’s modification of the petitioner’s sentence:
a. This court rejected the assertion by the respondent Commissioner of
Correction that the habeas court’s judgment could be affirmed on the
alternative ground that the petitioner failed to prove that his trial counsel
rendered deficient performance at the sentencing proceeding: the respon-
dent never presented to the habeas court his claim that, in the absence
of expert testimony to establish that competent counsel would have
presented the petitioner’s mitigation evidence at the sentencing proceed-
ing, the court improperly found that trial counsel’s failure to present
that evidence constituted deficient performance; moreover, the court’s
ruling was sufficiently supported by its findings that the petitioner’s trial
counsel presented almost no argument on his behalf at sentencing, relied
almost exclusively on an incomplete presentence investigation report,
and failed to investigate and present to the sentencing court any of the
substantial mitigation information the petitioner had presented to the
habeas court about his troubled background.
b. The habeas court did not err in determining that the petitioner was
required to prove under Strickland that he was prejudiced by his trial
counsel’s deficient performance, as the court correctly concluded that
the petitioner was not entitled to a presumption of prejudice pursuant
to United States v. Cronic (466 U.S. 648) and Davis v. Commissioner
of Correction (319 Conn. 548): the performance of the petitioner’s trial
counsel did not constitute or result in a complete denial of representation
necessary to invoke the Cronic presumption, as counsel alluded to por-
tions of the presentence investigation report that mentioned mitigating
facts about the petitioner’s background, counsel argued that the peti-
tioner had a conscience, which raised hope for his redemption, based
on the petitioner’s sometimes unsolicited cooperation with the police
about criminal activity, and counsel attempted to help the petitioner
preserve his claim of innocence by advising him not to offer his version
of the events at issue during his interview for the presentence investiga-
tion report.
c. The habeas court erred in ruling that it was barred from reviewing
or granting relief as to the deficient performance by the petitioner’s trial
counsel because of the statutorily mandated finality of the sentence
review division’s decision to modify the petitioner’s sentence; in the
present case, the habeas court had the authority under State v. Nardini
(187 Conn. 109) to hear and decide the petitioner’s constitutional chal-
lenge to his modified sentence and to order a proper remedy for the
violation of his right to the effective assistance of counsel, if such a
violation were proved at the habeas trial, in the form of an order that
his sentence be vacated and his case returned to the trial court for
resentencing.
d. This court was persuaded that the absence of the extensive information
concerning the petitioner’s troubled background and upbringing from
the trial court record sufficiently undermined confidence in the sentence
review division’s determination that the thirty year reduction in the
petitioner’s sentence was sufficient to remedy the disproportionality of
the original seventy-five year sentence: because trial counsel’s deficient
performance prevented the petitioner from presenting the mitigation
evidence to the sentence review division, which is limited to reviewing
challenged sentences for disproportionality solely on the basis of the
record before the trial court, there was a reasonable probability that the
sentence review division’s order would have been more favorable to him
if counsel’s deficient performance had not deprived it of such mitigating
information; accordingly, the habeas court’s judgment denying the peti-
tioner’s claim of ineffective assistance of counsel at sentencing had
to be reversed and the case remanded to the trial court for a new
sentencing hearing.
Argued March 2—officially released October 18, 2022
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Bhatt, J.; thereafter, the
petitioner filed an amended petition; judgment denying
the petition; subsequently, the court denied the petition-
er’s motion for reconsideration, and the petitioner, on
the granting of certification, appealed to this court.
Reversed in part; judgment directed; further proceed-
ings.
Vishal K. Garg, assigned counsel, for the appellant
(petitioner).
Kathryn W. Bare, senior assistant state’s attorney,
with whom, on the brief, were Sharmese L. Walcott,
state’s attorney, and Angela R. Macchiarulo and
Michael Proto, senior assistant state’s attorneys, for the
appellee (respondent).
Opinion
SHELDON, J. Following the granting of his petition
for certification to appeal, the petitioner, Ravon Donald,
appeals from the judgment of the habeas court denying
his fourth amended petition for a writ of habeas corpus,
in which he challenged the constitutionality of his con-
viction of and modified total effective sentence for five
felony offenses of which a jury had found him guilty
in connection with an armed robbery and the shooting
of two clerks at a grocery store in Hartford on December
22, 2011. On appeal, the petitioner contends that the
habeas court improperly rejected his claims that (1)
the state violated his due process right to a fair trial in
the underlying criminal trial by (a) knowingly present-
ing false or misleading testimony to the jury concerning
the details of its agreement with one of his alleged
accomplices, Tierais Harris, to testify against him in
that trial and (b) failing to disclose material evidence
to him, for his use in that trial, concerning the credibility
of two of the state’s witnesses, both his alleged accom-
plice, Harris, and the lead detective in the case, Reginald
Early, who testified to the petitioner’s alleged confes-
sion to participating in the armed robbery and shootings
on which the charged offenses were based; and (2) his
trial counsel in the underlying criminal trial, J. Patten
Brown III, rendered ineffective assistance in connection
with the petitioner’s sentencing after that trial by failing
to present an effective argument urging leniency on
the petitioner’s behalf and failing to support such an
argument by developing and presenting to the trial court
any of the extensive mitigating information about the
petitioner’s troubled background and upbringing to
which he and his expert witness, Jodi DeSauteles, a
social worker employed by the public defender’s office,
later testified at the habeas trial. Although we conclude
that the petitioner failed to establish either of his due
process claims, we agree with the petitioner that his
trial counsel rendered ineffective assistance in connec-
tion with his sentencing and that he was prejudiced by
such ineffective assistance with respect to his current
total effective sentence, which was later imposed on
him by order of the Sentence Review Division of the
Superior Court (review division) after it determined
that his original total effective sentence was dispropor-
tionate and should be reduced by thirty years of impris-
onment to remedy its disproportionality. Accordingly,
we affirm the habeas court’s judgment insofar as it
rejects the petitioner’s due process claims but reverse
that judgment insofar as it rejects his claim of ineffec-
tive assistance of counsel at sentencing and remand
the case to the habeas court with direction to vacate
his modified total effective sentence in the underlying
criminal case and to remand the case to the trial court
for resentencing.
The following facts and procedural history are rele-
vant to our resolution of this appeal. The petitioner’s
first jury trial commenced on April 7, 2014, but ended
with a mistrial when the jury was unable to reach a
unanimous verdict. Following the mistrial, on or about
June 10, 2014, the state offered the petitioner a plea
bargain under which he would be sentenced to a term
of eighteen years of imprisonment followed by seven
years of special parole if he would agree to plead guilty
to his pending charges. The petitioner declined to
accept the state’s offer. On February 5, 2015, following
a second jury trial on the same charges, a jury found
the petitioner guilty as charged of robbery in the first
degree in violation of General Statutes § 53a-134 (a)
(2), conspiracy to commit robbery in the first degree
in violation of General Statutes §§ 53a-48 and 53a-134
(a) (2), assault in the first degree in violation of General
Statutes § 53a-59 (a) (1), assault in the first degree in
violation of § 53a-59 (a) (5), and carrying a pistol with-
out a permit in violation of General Statutes § 29-35 (a).1
As a result of that verdict, the petitioner was exposed
to a maximum possible sentence on all charges of
eighty-five years of imprisonment.
On April 2, 2015, the court sentenced the petitioner
to a total effective sentence of seventy-five years of
imprisonment, fifteen years of which were mandatory,
followed by ten years of special parole. On April 9, 2015,
after the petitioner was sentenced, he filed a timely
application for sentence review with the review divi-
sion. Thereafter, on August 18, 2015, while his sentence
review application was pending, he timely appealed to
this court from his underlying judgment of conviction,
and the appeal was transferred to our Supreme Court.
On May 2, 2017, our Supreme Court affirmed the
petitioner’s conviction in the underlying criminal case
by issuing its decision in his direct appeal. State v.
Donald, 325 Conn. 346, 157 A.3d 1134 (2017). In that
decision, our Supreme Court, in language later adopted
by the habeas court in its memorandum of decision, set
forth the facts established in the petitioner’s underlying
criminal trial concerning the criminal conduct at issue
and the subsequent police investigation that led to the
petitioner’s arrest and conviction in connection there-
with: ‘‘On the evening of December 22, 2011, the victims,
Nicholas Ulerio and Brunilda Villa-Rodriguez, were
working behind the counter at Ulerio Grocery Store
(grocery store) on Homestead Avenue in Hartford. The
[petitioner] and . . . Harris, both wearing masks,
entered the grocery store. The [petitioner] was armed
with an antique revolver and Harris was armed with a
BB gun. The [petitioner] approached the counter and
shot the victims multiple times, inflicting serious injur-
ies upon both victims. He then kicked a door repeatedly
to gain access to the area behind the counter and pro-
ceeded to take approximately $100 from the cash regis-
ter. The [petitioner] and Harris then left the grocery
store. The robbery was recorded on the store’s surveil-
lance cameras. . . .
‘‘Detective . . . Early of the Hartford Police Depart-
ment was the lead detective assigned to investigate
the robbery at the grocery store. Early had known the
[petitioner] for three years, which resulted in a rapport
between them. The [petitioner] felt comfortable enough
speaking with Early that in the days prior to the robbery
he had attempted to contact Early for help because he
was homeless. On the basis of a voice mail message
that the [petitioner] had left for Early on December 19,
2011, in which the [petitioner] had sought to turn in an
antique revolver to the police for cash, Early believed
that the [petitioner] may have participated in the rob-
bery.
‘‘On January 6, 2012, Early contacted the [petitioner]
and arranged to meet him in Keney Park, telling the
[petitioner] that the purpose of the meeting was to
resolve an outstanding warrant. Early and a second
detective, Kevin Salkeld, waited for the [petitioner] in
an unmarked police vehicle. The [petitioner] arrived at
Keney Park at approximately 3:30 p.m., driving a pickup
truck. The [petitioner] then voluntarily sat in the front
passenger seat of the police vehicle, with Early seated
in the driver’s seat and Salkeld seated in the backseat.
Early spoke with the [petitioner] and the [petitioner]
agreed to accompany the detectives to the police station
to turn himself in on the outstanding warrant. At that
point the [petitioner] understood that he was under
arrest. The [petitioner] then informed the detectives
that the pickup truck he had driven to Keney Park was
stolen and contained drugs. The detectives arranged
for other officers to come and tow the vehicle. While
waiting for the officers to arrive, Early asked the [peti-
tioner] if he knew anything about the robbery on Home-
stead Avenue and if he was willing to speak to the
police about the robbery. The [petitioner] responded,
‘‘‘[y]eah, I know about that . . . .’’’ Salkeld interpreted
the [petitioner’s] response to mean that the [petitioner]
admitted that he had been involved in the robbery. The
detectives did not ask the [petitioner] any additional
questions about the robbery while at Keney Park.
‘‘The detectives then transported the [petitioner] to
the police station, completed the processing of his
arrest on the outstanding warrant, and placed him in
an interrogation room, where they had him wait while
they prepared to question him. The detectives provided
Miranda2 warnings to the [petitioner] and at 5:18 p.m.,
the [petitioner] signed a waiver indicating that he under-
stood his rights and did not wish to invoke them. Subse-
quently, the detectives questioned the [petitioner] for
several hours during which time he provided a detailed
statement in which he admitted to participating in the
robbery and shooting the victims. Early transcribed the
[petitioner’s] oral statement into a written statement
that the [petitioner] could read and sign. The [peti-
tioner] provided a description of the gun that he used in
the robbery, which was the same gun he had previously
contacted Early to discuss turning in to the police for
cash. He identified the person to whom he sold the gun
after the robbery and selected him from a photographic
array. The [petitioner] also identified Harris as the other
individual involved in the robbery and selected him
from a photographic array. Although the [petitioner]
initially expressed a desire not to sign the statement,
as documented in the statement itself, at approximately
9:30 p.m. the [petitioner] signed it. . . . Subsequent to
providing the signed statement, the [petitioner] was
arrested and charged . . . .’’ (Footnote omitted.) Id.,349–51.
On April 27, 2016, while the petitioner’s direct appeal
and sentence review application were still pending, the
petitioner filed his initial petition for a writ of habeas
corpus in this action. Thereafter, on March 6, 2018,
the petitioner filed a third amended habeas petition, in
which he pleaded four claims of error with respect to
his conviction of the charges and original total effective
sentence in the underlying criminal case, namely, that
(1) his trial counsel’s representation of him, both at
trial and at sentencing, violated his right to the effective
assistance of counsel, (2) the state’s knowing presenta-
tion of false or misleading testimony at the trial violated
his due process right to a fair trial, (3) the state’s failure
to disclose material evidence favorable to him, at or
before the trial, also violated his due process right to
a fair trial, and (4) his original total effective sentence
of seventy-five years of imprisonment plus ten years of
special parole violated his right to be free from cruel
and unusual punishment.
On March 12, 2018, the respondent, the Commis-
sioner of Correction, filed a return to the third amended
habeas petition pursuant to Practice Book § 23-30,3 in
which he denied or left the petitioner to his proof as
to the allegations of the petition and pleaded as a special
defense to the petitioner’s due process claims that the
petitioner had procedurally defaulted on those claims
by failing to raise them at trial or on direct appeal, and
that he had done so without good cause for or prejudice
sufficient to excuse such procedural defaults. On April
10, 2018, pursuant to Practice Book § 23-31,4 the peti-
tioner filed a reply to the respondent’s return, in which
he denied that he had procedurally defaulted on his
due process claims and pleaded that he could show
good cause for and prejudice sufficient to excuse any
procedural default that might otherwise be claimed to
have arisen from his failure to raise either of those
claims at trial or on direct appeal.
Before the start of the habeas trial, on August 16,
2018, a three judge panel of the Superior Court, sitting
by designation as the review division, issued its memo-
randum of decision on the petitioner’s application for
sentence review, in which it concluded that the petition-
er’s original total effective sentence was disproportion-
ate, and that that sentence should be reduced by thirty
years of imprisonment, to a term of forty-five years
of imprisonment, followed by fifteen years of special
parole, to remedy its disproportionality.5 At the hearing
before the review division, the petitioner’s new counsel6
had argued that the petitioner’s seventy-five year sen-
tence of imprisonment for the nonhomicidal offenses of
which he had been convicted in the underlying criminal
case was disproportionate to those offenses because it
exceeded the maximum sentence for murder. The state
had argued in opposition to the petitioner’s application
that the petitioner’s total effective sentence was not
disproportionate because the petitioner’s conduct in
committing those offenses had involved unnecessary
and extreme violence that seriously injured two people.
In the words of the assistant state’s attorney who argued
on behalf of the state, the underlying armed robbery
and shootings of the two store clerks, as shown on the
grocery store’s video recording of the incident, was ‘‘the
most serious case of this nature that he had ever seen.’’
In its memorandum of decision, the review division
agreed with the sentencing court that ‘‘the video of
the robbery is shocking. The actions of the [petitioner]
require the imposition of a sentence of substantial incar-
ceration.’’ It noted, however, that it had to ‘‘examine
the entire record before determining if the [sentence]
imposed is appropriate and proportional.’’ After con-
ducting that examination, the review division made the
following observations: ‘‘The record reveals that there
were two codefendants in this case. One defendant
participated in the robbery by entering the store prior
to the robbery and advising his companions that no
customers were present. That defendant was prose-
cuted and sentenced to twelve years, suspended after
thirty-four months. The second defendant, who entered
the store armed with a BB gun was also prosecuted
and he received a sentence of fourteen years of impris-
onment, followed by six years of special parole. It must
also be noted that, at the time of the robbery, the peti-
tioner was nineteen years old. Although the petitioner
was an adult at the time of his offense, his relative youth
and immaturity are factors that should be considered
in determining an appropriate sentence. In addition, a
record of criminal convictions is always a significant
factor in sentencing. The petitioner’s prior criminal his-
tory consisted of a single conviction for a misdemeanor,
for which he had received a sentence of an uncondi-
tional discharge. In addition, the petitioner had pending
charges for larceny and drug offenses.’’ The review divi-
sion concluded its review of the petitioner’s sentence
as follows: ‘‘After a careful review of the record and
an analysis of the offense and the background and age
of the petitioner . . . the sentence imposed in this case
was disproportionate.’’ The review division therefore
ordered that the petitioner’s underlying case be
returned to the Superior Court for the judicial district
of Hartford with direction that he be resentenced on
all charges to a total effective sentence of forty-five
years of imprisonment, followed by fifteen years of
special parole. On October 3, 2018, the modified total
effective sentence was imposed on the petitioner pursu-
ant to the review division’s order.
Four days before the start of the habeas trial, on
February 7, 2019, the respondent filed a motion to dis-
miss count four of the third amended habeas petition
for lack of subject matter jurisdiction on the ground of
mootness based on the review division’s intervening
order that the petitioner’s original sentence of imprison-
ment be reduced by thirty years. The habeas court did
not rule on that motion before the start of the
habeas trial.
The evidentiary portion of the habeas trial took place
on two nonconsecutive days: February 11 and June 17,
2019. On February 13, 2019, after the first day of trial,
the court ordered the parties to file interim trial briefs
on or before March 29, 2019, to address, inter alia, the
following issues: (1) whether count four of the third
amended habeas petition was moot in light of the review
division’s order that the petitioner’s original sentence
be reduced; and (2) whether the habeas court was
barred from considering the constitutionality of the
petitioner’s modified sentence imposed by order of the
review division.7
On March 28, 2019, the petitioner filed his interim
trial brief to address the issues raised in the court’s
February 13, 2019 order. He argued in his brief that
count four of the third amended habeas petition was
not moot because he was ‘‘not claiming that the [review]
division made an incorrect decision, based on the
record before it. Rather, the petitioner is arguing that
his sentence remains disproportionate, even after the
modification, in light of his age, criminal history, per-
sonal background, and other mitigating information.
That mitigating information was never before the
[review] division nor the original sentencing court, due
to the ineffective assistance of [his] trial counsel. A
habeas proceeding is the appropriate mechanism to
review such a miscarriage of justice, based upon trial
counsel’s deficient performance.’’ (Emphasis omitted.)
The petitioner’s brief further noted that it had been an
oversight on the part of his habeas counsel not to seek
leave to file a further amendment to his habeas petition
to reflect the review division’s intervening order that
his original total effective sentence be reduced. Accord-
ingly, on the same day that the petitioner filed his
interim trial brief, he filed a motion requesting leave to
file a fourth amended petition for a writ of habeas
corpus, which the habeas court granted the following
day. The fourth amended habeas petition, which became
operative on the day it was filed, changed the allegations
of the third amended habeas petition to reflect the
intervening reduction of the petitioner’s original total
effective sentence by order of the review division.
The respondent also filed his interim trial brief on
March 28, 2019. He first argued in that brief that,
because the petitioner’s seventy-five year sentence no
longer existed, count four of the petitioner’s third
amended habeas petition had become moot. He also
argued that, even if the petitioner could challenge the
constitutionality of his modified sentence on the ground
of ineffective assistance of counsel in connection with
his original sentencing, he could not prevail on that
claim because his trial counsel’s allegedly deficient per-
formance at sentencing had not in fact caused him
prejudice, assertedly because his modified sentence is
‘‘commensurate with the nature of the crime and other
relevant sentencing factors.’’
After the parties filed their interim trial briefs, the
evidentiary portion of the habeas trial continued on
June 17, 2019. On that day, the petitioner presented his
own lengthy testimony, which the habeas court would
later credit, describing his troubled background and
upbringing since childhood, including that he had little
to no relationship with his drug abusing father; he had
endured repeated sexual abuse by older children as a
small child; he had been introduced to and been brought
up as a member of a notorious criminal street gang,
the Bloods, by his sister’s boyfriend, who was then his
only male role model; he had constantly been exposed
to violence throughout his youth; he started using illegal
drugs at the age of eleven and, by the age of twelve,
was consuming drugs and alcohol regularly; he had
frequently been institutionalized for extended periods
of time in group homes and mental health facilities; he
had been diagnosed with several behavioral and mental
health problems during his childhood but had received
only sporadic and inconsistent treatment for those
problems; and he had experienced poor living condi-
tions, including periods of homelessness, whenever he
was not institutionalized. The petitioner also presented
testimony from DeSauteles,8 a social worker employed
by the public defender’s office, who had interviewed
him extensively about his background and upbringing
before the habeas trial. DeSauteles, whose testimony
the habeas court also credited, confirmed substantial
portions of the petitioner’s social history, to which he
had testified at the habeas trial, based on her review
of official records she had obtained from several of the
group homes, institutions and treatment facilities in
which the petitioner had been housed, supervised or
hospitalized as a child. That information had been
requested by the probation officer who prepared the
presentence investigation report (PSI) but was never
received by her from the keepers of those records
before the PSI was drafted and submitted. DeSauteles
also offered a detailed analysis of the probable adverse
effects of such a difficult childhood and upbringing on
the petitioner’s behavior as a young man, based on
several well-known risk factors that affect the behavior
of persons with similar backgrounds and social histor-
ies, as identified by the Centers for Disease Control
and Prevention (CDC). She testified that these factors
‘‘help to explain why a client would react in a certain
way to a certain situation.’’
On June 3, 2020, the habeas court issued its memoran-
dum of decision denying the petitioner’s fourth
amended habeas petition. As to the petitioner’s due
process claims, the habeas court concluded that,
although the petitioner had not procedurally defaulted
on those claims, he had not established his entitlement
to prevail on either such claim. It therefore rejected
both of those claims on the merits.
As to the petitioner’s claim in count one of ineffective
assistance of counsel in connection with his original
sentencing, the court first concluded that trial counsel
had rendered a constitutionally deficient performance
in connection with the petitioner’s sentencing because
his advocacy efforts on behalf of the petitioner were
so ‘‘paltry’’ as to be ‘‘tantamount to having no counsel
at all.’’ In support of this conclusion, the court noted
that counsel had spoken only briefly on the petitioner’s
behalf at the sentencing hearing, he had limited his
remarks to a few brief references to the petitioner’s
PSI, and he had presented no other information or mate-
rials in support of a plea for leniency. The record before
the sentencing court thus lacked any of the extensive
mitigating information about the petitioner’s troubled
background and upbringing, or its probable effects on
the petitioner’s behavior as a young man, that the peti-
tioner and his expert witness had described in their
testimony at the habeas trial and the habeas court had
found to be significant, credible, and compelling.
Turning next to the question of whether trial coun-
sel’s deficient performance at sentencing had caused
the petitioner to suffer actual prejudice, the habeas
court first stated that ‘‘[t]he petitioner did not present
any evidence from which the court [could] conclude
that the sentencing court would have imposed a differ-
ent total effective sentence’’ on the petitioner if his
counsel had not performed deficiently at sentencing.
Thereafter, however, the court went on to note that,
despite the lack of evidence that the sentencing court
would have imposed a different sentence on the peti-
tioner if it had known of the extensive mitigating evi-
dence that trial counsel had failed to present to it, the
review division had ruled that the petitioner’s original
total effective sentence was disproportionate and that
it should be reduced by thirty years of imprisonment
to remedy its disproportionality. In light of that ruling,
to which all three of the review division’s judges had
agreed after they had carefully reviewed the record and
analyzed ‘‘the nature of the offense and the background
and age of the petitioner,’’ the habeas court concluded
that, if trial counsel had not performed deficiently at
the petitioner’s sentencing, the imposition of a lesser
sentence on him would have been ‘‘objectively proba-
ble.’’
Notwithstanding this conclusion, because the peti-
tioner’s claim of prejudice arising from trial counsel’s
deficient performance at his original sentencing was
now directed, under his fourth amended habeas peti-
tion, to the modified total effective sentence that was
later imposed on him by order of the review division, the
court went on to consider whether counsel’s deficient
performance at sentencing had caused the petitioner
prejudice before the review division as well. It answered
this question in the negative, explaining that it could
not make such a finding ‘‘for two reasons: first, the
petitioner ha[d] not presented any evidence to show
that the sentence review division’s decision would have
been even more favorable to him than the thirty year
reduction [it previously ordered] and second, to so hold
would require this court to vacate the sentence review
division’s decision on substantive grounds, which
involves exercise of authority this court does not pos-
sess.’’ As to the first of these reasons, the court offered
no explanation as to why, if trial counsel had rendered
a competent performance at the petitioner’s original
sentencing by presenting the extensive mitigating infor-
mation about petitioner’s troubled background and
upbringing to the trial court, and thus causing such
information to be included in the record that came
before the review division, such previously unpresented
evidence would not potentially have warranted a more
substantial reduction of his original sentence than the
thirty year reduction that the review division initially
ordered. As to the second of these reasons, the court
ruled, more particularly, that a habeas court cannot
review or alter any sentence after it has been modified
by order of the review division because the discretion-
ary decisions of the review division under the Sentence
Review Act, General Statutes § 51-194 et seq.,9 as to
whether and how a sentence should be modified to
remedy its alleged disproportionality are final, and thus
are not reviewable or alterable on direct appeal or in
other postconviction proceedings such as habeas cor-
pus actions.
On July 22, 2020, after the habeas court denied the
petitioner’s postsentencing motion for reconsidera-
tion,10 in which he claimed for the first time that the
habeas court should have presumed, under United
States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L.
Ed. 2d 657 (1984), that he was prejudiced by his trial
counsel’s deficient performance at sentencing rather
than requiring him to prove that he had been prejudiced
by that deficient performance, as otherwise required to
establish ineffective assistance of counsel under the
test set forth in Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the petitioner
filed a petition for certification to appeal from the
habeas court’s final judgment, which the court granted
on July 28, 2020. This appeal followed. Additional facts
and procedural history will be set forth as necessary.
I
The petitioner first claims that the state violated his
due process right to a fair trial at his underlying criminal
trial by (1) knowingly presenting false or misleading
testimony to the jury concerning the details of its agree-
ment with one of his alleged accomplices, Harris, to
testify against him in that trial and (2) failing to disclose
material evidence to him, for his use in that trial, con-
cerning the credibility of two of the state’s witnesses,
both Harris and the lead detective in the case, Early,
who testified to the petitioner’s alleged confession to
having participated in the armed robbery and shootings
on which the charged offenses were based. We address
each claim in turn.
A
The petitioner argues that the habeas court erred in
concluding that he failed to prove his claim that the state
presented false testimony from Harris. Specifically, the
petitioner asserts that Harris testified falsely at his crim-
inal trial regarding Harris’ alleged agreement with the
state for a sentence modification in exchange for testi-
mony against the petitioner on behalf of the state. The
petitioner contends that ‘‘Harris’ testimony misled the
jury because he withheld the fact that the [state] had
promised to support a modification . . . and that he
anticipated that his sentence would be reduced substan-
tially . . . .’’ He further contends that, ‘‘even if this
court finds that the [state] made no promises, Harris’
testimony was nonetheless misleading because it sug-
gested to the jury that the [state’s] only role in the
sentence modification process was an agreement for a
hearing.’’ The respondent argues that there is no evi-
dence that Harris testified falsely or in a misleading
manner about his agreement with the state and that,
even if Harris did testify falsely, there is no reasonable
likelihood that the misleading testimony could have
affected the judgment. We agree with the respondent
that the evidence does not support the petitioner’s
claim.
The following additional facts are relevant to our
resolution of this claim. At the petitioner’s criminal
trial, the state presented testimony from Harris. The
following colloquy occurred during Harris’ direct exam-
ination by the prosecutor:
‘‘Q. Now, so it’s clear, you expect to get permission
from the state, which is myself, to get back in front of
[the] sentencing judge, okay, and you’re looking for a
modification downward on your sentence, right? You
understand that?
‘‘A. Yes.
‘‘Q. And that is your truthful testimony today?
‘‘A. Yes.
‘‘Q. Okay. And you also hope that the state, which
would be me, would speak positive about how you
assisted in this matter?
‘‘A. Yes.’’
During cross-examination, the following colloquy
occurred between trial counsel and Harris:
‘‘Q. . . . [Y]ou were told that you could go back to
the judge and get less time, correct?
‘‘A. I wasn’t guaranteed any—I wasn’t guaranteed
anything.
***
‘‘Q. Okay. And the only other way [your sentence]
could change is if you testify here today and you’re
allowed to go before the judge, and then the judge that
originally sentenced you can lower your time, correct?
‘‘A. I don’t know what you mean by that. Like it was
promised that it was going to happen?
‘‘Q. No, I just asked you that’s the only way it could
happen, correct?
‘‘A. Yeah, that’s the only way it could happen.
‘‘Q. And you want the prosecutor, this gentleman
here, to go tell the judge good things about you, that
you cooperated, correct?
‘‘A. Hopefully, yes.
‘‘Q. And you would—you would agree with me that
it’s not in your best interest for him to go tell the judge
that you did not testify truthfully over there, correct?
‘‘A. It honestly really don’t matter.
‘‘Q. It doesn’t matter?
‘‘A. No.
‘‘Q. Why doesn’t it matter?
‘‘A. Because if he talked to her or not it’s only her
decision to do what she feel in the case.
‘‘Q. Yeah, but you want him to say good things about
you, don’t you?
‘‘A. I want—I want everybody to say good things
about me.
‘‘Q. Okay. And you want to help yourself, right?
‘‘A. Who wouldn’t?’’
During redirect examination, the following colloquy
occurred between the prosecutor and Harris:
‘‘Q. Now, and you answered this. The ultimate deci-
sion of whether you receive a modification downwards
on your sentence, the ultimate decision is the judge,
isn’t it?
‘‘A. Yes.
‘‘Q. So, you’re actually taking a risk by testifying
today?
‘‘A. Yes.
‘‘Q. Because you don’t know what the end result
will be?
‘‘A. Yes.’’
Thomas LaPointe, a private investigator hired by the
petitioner in preparation for the habeas trial, also testi-
fied at the habeas trial. LaPointe testified that he inter-
viewed Harris in August, 2017, and that Harris told him
that a modification in his sentence would be ‘‘up to the
judge, but he could get [ten], [five], or maybe even go
home.’’ LaPointe further testified that he recalled ‘‘there
was a promise in [Harris’] mind’’ and that Harris told
him that he would not have testified if there was not
a deal in place. However, LaPointe also testified that
he did not ‘‘remember [Harris] saying anything about
a promise. I remember him saying there was a conversa-
tion between a habeas attorney and a prosecutor, but
I don’t know—I’m not sure if he said the word, promise.’’
In its memorandum of decision, the habeas court
found that ‘‘Harris never indicated that the [state] had
promised any specific term of incarceration or number
of years the sentence reduction would confer.’’ In ana-
lyzing the petitioner’s due process claim, the habeas
court concluded that ‘‘the claim . . . must fail because
the petitioner has failed to show that Harris presented
false or misleading testimony that the state failed to
correct.’’
We are guided by the following legal principles in
resolving this claim. ‘‘Whether a prosecutor knowingly
presented false or misleading testimony presents a
mixed question of law and fact, with the habeas court’s
factual findings subject to review for clear error and
the legal conclusions that the court drew from those
facts subject to de novo review.’’ Greene v. Commis-
sioner of Correction, 330 Conn. 1, 14, 190 A.3d 851(2018), cert. denied sub nom. Greene v. Semple,
U.S. , 139 S. Ct. 1219, 203 L. Ed. 2d 238 (2019).
‘‘The rules governing our evaluation of a prosecutor’s
failure to correct false or misleading testimony are
derived from those first set forth by the United States
Supreme Court in Brady v. Maryland, 373 U.S. 83, 86–
87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) . . . . In
Brady, the court held that the suppression by the prose-
cution of evidence favorable to an accused upon request
violates due process [when] the evidence is material
either to guilt or to punishment, irrespective of the good
faith or bad faith of the [prosecutor]. . . . [T]he Brady
rule applies not just to exculpatory evidence, but also
to impeachment evidence . . . which, broadly defined,
is evidence having the potential to alter the jury’s assess-
ment of the credibility of a significant prosecution wit-
ness.’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.) Adams v. Commissioner of
Correction, 309 Conn. 359, 369–70, 71 A.3d 512 (2013).
‘‘[D]ue process is . . . offended if the state, although
not soliciting false evidence, allows it to go uncorrected
when it appears. . . . If a government witness falsely
denies having struck a bargain with the state, or sub-
stantially mischaracterizes the nature of the induce-
ment, the state is obliged to correct the misconception.’’
(Citation omitted; internal quotation marks omitted.)
Greene v. Commissioner of Correction, supra, 330
Conn. 15.
The petitioner asserts that the agreement between
Harris and the state included a promise by the state
that his sentence would be reduced. The record does
not support this assertion. In support of this claim, the
petitioner principally relies on LaPointe’s testimony at
the habeas trial. The habeas court, however, made a
finding of fact11 that Harris never indicated that the
state had ‘‘promised any specific term of incarceration
or number of years’’ for a sentence reduction. ‘‘An agree-
ment by a prosecutor with a cooperating witness to
bring the witness’ cooperation to the attention of the
judge who later sentences the witness on his own pend-
ing criminal charges is a deal that must be disclosed
to the defendant against whom [she] testifies, even if
the deal does not involve a specific recommendation
by the prosecutor for the imposition of a particular
sentence.’’ (Internal quotation marks omitted.) Turner
v. Commissioner of Correction, 181 Conn. App. 743,
759, 187 A.3d 1163 (2018). This is precisely the kind of
deal that Harris had with the state, and the record
reveals that, contrary to the petitioner’s assertion, it
was fully disclosed through Harris’ testimony at the
underlying criminal trial.
Accordingly, we conclude that Harris did not testify
falsely or in a misleading manner, and, thus, the habeas
court properly concluded that the petitioner failed to
prove this claim.
B
The petitioner also claims that the court erred in
concluding that the state did not fail to disclose mate-
rial, exculpatory evidence. Specifically, the petitioner
contends that the state knew of and failed to disclose
internal affairs complaints that had a bearing on the
credibility of Early.12 The petitioner argues that, had
this evidence been presented, there is a reasonable
probability that the outcome of his criminal trial would
have been different. The respondent argues that no
material, exculpatory information existed with respect
to Harris’ agreement with the state and that the disclo-
sure of the internal affairs records would not have over-
come the evidence presented by the state against the
petitioner. We agree with the respondent.
The following additional facts, as found by the habeas
court, are relevant to our resolution of this claim.
‘‘Another component of the defense strategy . . . was
impeaching the credibility of . . . Early . . . .
According to Early, the petitioner contacted him three
days before the . . . incident to ask about selling a
long barrel revolver to Early as part of a police buyback
program. Early recorded the voice mail the petitioner
left for him inquiring about the gun buyback program.
The video of the robbery and shooting showed an indi-
vidual who looked like the petitioner firing a weapon
that resembled a long barrel revolver. Viewing the store
video of the incident prompted Early to contact the
petitioner and arrange a meeting with him. Early met
with the petitioner to discuss the robbery and shooting.
The petitioner acknowledged to Early that he had infor-
mation about what happened . . . and was willing to
speak further about the incident. After [another detec-
tive] joined them, the detectives and the petitioner went
to the police station for further questioning that eventu-
ally resulted in the petitioner’s statement admitting his
involvement.
‘‘[The petitioner’s trial counsel] made his standard
discovery request by way of a motion filed once the
case was on the trial list. Prior to a case being on the
trial list, [trial counsel’s] practice is to essentially make
the same request via a letter to the state’s attorney.
These requests include any information concerning wit-
nesses who have a personal interest in cooperating with
the prosecution. The prosecutor gave [the petitioner’s
trial counsel] access to the state’s file and provided him
with copies of what the state had. The case proceeded
to trial after the discovery between the state and
defense, and, after the first trial resulted in a hung jury,
the petitioner was convicted after the second trial.
‘‘[The petitioner’s trial counsel] indicated that he
requested Early’s personnel file. Although Early’s per-
sonnel file was not disclosed as a result of his request,
[trial counsel] did not subpoena the personnel file. [Trial
counsel] did not know, therefore, that Early had a disci-
plinary record involving excessive use of force, making
false statements, and abuse of power. Consequently,
[trial counsel] was unable to use such information to
attempt to impeach Early’s credibility on cross-exami-
nation.’’
The following principles govern our analysis of this
claim. ‘‘As set forth by the United States Supreme Court
in Brady v. Maryland, supra, 373 U.S. 87, [t]o establish
a Brady violation, the [defendant] must show that (1)
the government suppressed evidence, (2) the sup-
pressed evidence was favorable to the [defendant], and
(3) it was material [either to guilt or to punishment].
. . . Whether the [defendant] was deprived of his due
process rights due to a Brady violation is a question
of law, to which we grant plenary review.’’ (Internal
quotation marks omitted.) State v. Bryan, 193 Conn.
App. 285, 315, 219 A.3d 477, cert. denied, 334 Conn. 906,
220 A.3d 37 (2019).
‘‘Not every failure by the state to disclose favorable
evidence rises to the level of a Brady violation. Indeed,
a prosecutor’s failure to disclose favorable evidence
will constitute a violation of Brady only if the evidence
is found to be material. . . . Thus, the prosecutor is
not required to deliver his entire file to defense counsel,
but only to disclose evidence favorable to the accused
that, if suppressed, would deprive the defendant of a
fair trial . . . . The question is not whether the defen-
dant would more likely than not have received a differ-
ent verdict with the evidence, but whether in its absence
he received a fair trial, understood as a trial resulting
in a verdict worthy of confidence. A reasonable proba-
bility of a different result is accordingly shown when
the government’s evidentiary suppression undermines
confidence in the outcome of the trial. . . . In evaluat-
ing the reasonable probability standard, we should be
aware of what adverse effect the nondisclosure may
have had on the [petitioner’s] preparation or presenta-
tion of his case and that we should act with an aware-
ness of the difficulty of reconstructing in a [posttrial]
proceeding the course that the defense and the trial
would have [otherwise] taken . . . . On the other
hand, we must also recognize that the mere possibility
that an item of undisclosed evidence might have helped
the defense or might have affected the outcome of the
trial, [however, does] not establish materiality in the
constitutional sense.’’ (Citations omitted; emphasis
omitted; internal quotation marks omitted.) Id., 316–17.
On the basis of the record, we conclude that there
is no reasonable probability that the outcome of the
petitioner’s trial would have been different had the state
disclosed Early’s personnel records. Although the
records could have been used to impeach Early’s testi-
mony, such impeachment would not have overcome
the overwhelming evidence adduced at trial supporting
the petitioner’s conviction, including a video of the peti-
tioner committing the crime and Harris’ testimony
against the petitioner. ‘‘[T]his was not a case in which
the prosecution’s case hinge[d] entirely on the testi-
mony of [the witness in question] . . . . Rather . . .
there was ample evidence to support the petitioner’s
conviction. . . . Therefore, we cannot say that the fact
that the state did not disclose the evidence [in question]
. . . undermines our confidence in the jury’s verdict,
as there was no reasonable probability that the jury
would have reached a different verdict if it had heard
and considered this undisclosed impeachment evi-
dence.’’ (Citations omitted; internal quotation marks
omitted.) Elsey v. Commissioner of Correction, 126
Conn. App. 144, 160, 10 A.3d 578, cert. denied, 300 Conn.
922, 14 A.3d 1007 (2011).
II
The petitioner’s final claim on appeal is that the
habeas court erred in denying his claim that his trial
counsel had rendered ineffective assistance in connec-
tion with his original sentencing in the underlying crimi-
nal case. We first set forth the relevant legal principles
that govern our analysis of that claim.
‘‘The sixth amendment provides that in all criminal
prosecutions, the accused shall enjoy the right to the
effective assistance of counsel. . . . This right is incor-
porated to the states through the due process clause of
the fourteenth amendment.’’ (Internal quotation marks
omitted.) Edwards v. Commissioner of Correction, 183
Conn. App. 838, 843, 194 A.3d 329 (2018). ‘‘Under the
two-pronged Strickland test, a [petitioner] can only pre-
vail on an ineffective assistance of counsel claim if he
proves that (1) counsel’s performance was deficient,
and (2) the deficient performance resulted in actual
prejudice. . . . To demonstrate deficient performance,
a [petitioner] must show that counsel’s conduct fell
below an objective standard of reasonableness for com-
petent attorneys. . . . To demonstrate actual preju-
dice, a [petitioner] must show a reasonable probability
that the outcome of the proceeding would have been
different but for counsel’s errors.’’ (Internal quotation
marks omitted.) Id.‘‘To establish prejudice, [i]t is not enough for the
[petitioner] to show that the errors had some conceiv-
able effect on the outcome of the proceedings. . . . A
claimant must demonstrate a reasonable probability
that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.’’ (Internal
quotation marks omitted.) Hilton v. Commissioner of
Correction, 161 Conn. App. 58, 77, 127 A.3d 1011 (2015),
cert. denied, 320 Conn. 921, 132 A.3d 1095 (2016). ‘‘A
reasonable probability is one which is sufficient to
undermine confidence in the result.’’ Ruffin v. Commis-
sioner of Correction, 106 Conn. App. 396, 399, 943 A.2d
1105, cert. denied, 286 Conn. 922, 949 A.2d 481 (2008).
‘‘Strickland recognized, however, that [i]n certain
[s]ixth [a]mendment contexts, prejudice is presumed.
. . . In . . . [United States v. Cronic, supra, 466 U.S.
648] . . . which was decided on the same day as
Strickland, the United States Supreme Court elaborated
on the following three scenarios in which prejudice
may be presumed: (1) when counsel is denied to a
[petitioner] at a critical stage of the proceeding; (2)
when counsel entirely fails to subject the prosecution’s
case to meaningful adversarial testing; and (3) when
counsel is called upon to render assistance in a situation
in which no competent attorney could do so. . . . This
is an irrebuttable presumption.’’ (Citation omitted;
internal quotation marks omitted.) Edwards v. Com-
missioner of Correction, supra, 183 Conn. App. 843–44.
The second listed scenario in which prejudice arising
from trial counsel’s deficient performance may be pre-
sumed, which the petitioner claims is relevant to what
occurred in the present case, has been held to involve
‘‘an actual breakdown of the adversarial process, which
occurs when counsel completely fails to advocate on
a defendant’s behalf. . . . Counsel’s complete failure
to advocate for a defendant . . . such that no explana-
tion could possibly justify such conduct, warrants the
application of Cronic.’’ (Citations omitted; internal quo-
tation marks omitted.) Cruz v. Commissioner of Cor-
rection, 206 Conn. App. 17, 32, 257 A.3d 399, cert.
denied, 340 Conn. 913, 265 A.3d 926 (2021). ‘‘The United
States Supreme Court has emphasized . . . how sel-
dom circumstances arise that justify a court in presum-
ing prejudice, and concomitantly, in forgoing particular-
ized inquiry into whether a denial of counsel
undermined the reliability of a judgment . . . .’’ (Inter-
nal quotation marks omitted.) Leon v. Commissioner
of Correction, 189 Conn. App. 512, 531, 208 A.3d 296,
cert. denied, 332 Conn. 909, 209 A.3d 1232 (2019).
‘‘[C]ases have emphasized that the second Cronic
exception is exceedingly narrow. . . . [C]ourts have
rarely applied Cronic, emphasizing that only non-repre-
sentation, not poor representation, triggers a presump-
tion of prejudice.’’ (Internal quotation marks omitted.)
Id., 533.
‘‘The [s]ixth [a]mendment requires effective assis-
tance of counsel at critical stages of a criminal proceed-
ing. Its protections are not designed simply to protect
the trial, even though counsel’s absence [in these
stages] may derogate from the accused’s right to a fair
trial. . . . The constitutional guarantee applies to pre-
trial critical stages that are part of the whole course of a
criminal proceeding, a proceeding in which defendants
cannot be presumed to make critical decisions without
counsel’s advice. This is consistent, too, with the rule
that defendants have a right to effective assistance of
counsel on appeal, even though that cannot in any way
be characterized as part of the trial. . . . The prece-
dents also establish that there exists a right to counsel
during sentencing . . . . [See Glover v. United States,
531 U.S. 198, 203–204, 121 S. Ct. 696, 148 L. Ed. 2d 604(2001)]. Even though sentencing does not concern the
defendant’s guilt or innocence, ineffective assistance
of counsel during a sentencing hearing can result in
Strickland prejudice because any amount of [addi-
tional] jail time has [s]ixth [a]mendment significance.
[Id., 203]. . . . Lafler v. Cooper, 566 U.S. 156, 165, 132
S. Ct. 1376, 182 L. Ed. 2d 398 (2012); see also Ebron
v. Commissioner of Correction, [120 Conn. App. 560,
581–82, 992 A.2d 1200 (2010)] (habeas court properly
determined that petitioner suffered prejudice when trial
counsel’s deficient performance resulted in additional
incarceration); see id., 582 (The petitioner suffered the
prejudice of . . . [additional] incarceration as a direct
result of [trial counsel’s] deficient performance. . . .
Further, the outcome of the proceedings was affected
directly by the petitioner’s counsel . . . and [resulted
in] the loss of a lesser sentence.).’’ (Emphasis in original;
internal quotation marks omitted.) Dennis v. Commis-
sioner of Correction, 189 Conn. App. 608, 628–29, 208
A.3d 282 (2019). To prevail on a claim of ineffective
assistance of counsel at sentencing, the petitioner must
therefore prove, except in the limited circumstances
where prejudice may be presumed under Cronic, that
there is a reasonable probability that he would have
received a more favorable sentence than he did receive
had it not been for his trial counsel’s constitutionally
deficient performance in connection with his sentenc-
ing.
‘‘The issue of whether the representation that a [peti-
tioner] received at trial was constitutionally inadequate
is a mixed question of law and fact. . . . As such, the
question requires plenary review unfettered by the
clearly erroneous standard.’’ (Internal quotation marks
omitted.) Edwards v. Commissioner of Correction,
supra, 183 Conn. App. 843.
In the present case, the petitioner argues, more partic-
ularly, that the habeas court erred in ruling that (1) it
had no power to review or alter his challenged sentence
on the ground of ineffective assistance of counsel
because that sentence had been imposed on him by
order of the review division after it had reviewed his
original sentence for alleged disproportionality and
made its final, unreviewable decision as to how that
sentence should be modified to remedy its proven dis-
proportionality, (2) to establish his claim of ineffective
assistance of counsel at sentencing, the petitioner had
to prove that he was prejudiced by his trial counsel’s
deficient performance at sentencing under the rule of
Strickland v. Washington, supra, 466 U.S. 668, and that
it could not be presumed that he had been prejudiced
by that deficient performance under the authority of
United States v. Cronic, supra, 466 U.S. 648, and (3)
the evidence presented by the petitioner to prove that
he was prejudiced by his trial counsel’s deficient perfor-
mance in connection with his original sentencing was
insufficient to meet his burden of proving prejudice
under the second prong of the test set forth in Strick-
land. The respondent disputes each of these claims of
error and further argues, as an alternative basis for
affirming the habeas court’s denial of the petitioner’s
claim of ineffective assistance of counsel at sentencing,
that the petitioner failed to meet his threshold burden
of proving that his trial counsel’s performance at sen-
tencing was constitutionally deficient under the first
prong of Strickland. The petitioner opposes the respon-
dent’s challenge to the habeas court’s ruling that his
trial counsel rendered a constitutionally deficient per-
formance in connection with his original sentencing.
A
Before addressing the petitioner’s several arguments
as to why the habeas court erred in denying his claim
of ineffective assistance of counsel at sentencing under
the second prong of Strickland, we will consider the
respondent’s argument that the habeas court’s denial
of that claim should be affirmed on the alternative
ground that the petitioner failed to prove, as a prelimi-
nary matter, that his trial counsel’s performance in con-
nection with that sentencing was constitutionally defi-
cient. The following additional facts are relevant to the
habeas court’s challenged ruling as to trial counsel’s
deficient performance in connection with the petition-
er’s sentencing.
On April 2, 2015, at the petitioner’s original sentencing
hearing in the underlying criminal case, the trial court,
Kwak, J., began by addressing a motion from the peti-
tioner’s trial counsel to withdraw as counsel of record,
which had been filed with the court on the day before
sentencing. The motion to withdraw noted that the peti-
tioner had filed a grievance against trial counsel, accus-
ing him of ethical lapses and of violating the attorney-
client privilege, and stated that, as a result of such
allegations against him, counsel wanted to withdraw
from the case because he ‘‘would rather not have the
appearance [of an actual conflict of interest] hanging
as a cloud [over the case] . . . .’’ At the hearing on his
motion to withdraw, trial counsel told the court that,
on the day before, the petitioner had informed him that
he did not ‘‘want me on his case and didn’t want to
discuss the case with me . . . .’’ The court denied the
motion from the bench,13 then proceeded directly to
sentencing.
In the ensuing sentencing proceeding, trial counsel
briefly addressed the court as follows on behalf of the
petitioner: ‘‘As you know, my client has indicated in
communications [that] he wishes to appeal and main-
tains his innocence, but I’ll address a couple matters
in the [PSI] I just want to highlight for Your Honor’s
consideration. . . . [I]t’s not discussed extensively—
but there’s some issues with his upbringing if you read
between the lines, where his mother sent him off, and
I think to the extent that you could interpret them as
not being that way. I think that [he has had a] life of
seemingly being kind of [a] drifter . . . . He’s just a
guy involved in very low-level misconduct and was kind
of almost living on the streets at some point. . . .
Detective Early also did mention . . . that [the peti-
tioner] had in the past provided information to him,
sometimes solicited sometimes unsolicited, about crim-
inal activity and drug dealing in the neighborhood. So,
I think that speaks to the fact that there is some con-
science there and some hope of redemption in the
future. And again, I am reiterating that my client wants
to appeal and I’m assuming for the sake of this proceed-
ing that everything is correct in the [PSI].’’14
Thereafter, having also heard from the state, the vic-
tims via a victim impact statement, and the petitioner
himself, the trial court made remarks concerning the
nature of the crime, the impact of the crime on the
victims, and the petitioner’s background and its impact
on the court’s sentencing decision. Concerning the peti-
tioner’s background, in particular, the court remarked
as follows: ‘‘According to the PSI, the [petitioner] was
in foster care for a few years because his mother was
not able to control him. He has a history of substance
abuse, including marijuana, cocaine, ecstasy, and her-
oin. [The petitioner] has a history of not being able to
follow the rules. . . . According to the PSI, he may
have had a mild or moderate mental health disorder,
which this court has taken into consideration in the
sentence. [The petitioner] may not have had the best
of childhoods but it certainly was not the worst and it
doesn’t explain his actions and does not excuse his
heinous behavior, but the court will show some leniency
due to that fact. But make no mistake, the court consid-
ers [the petitioner] a significant danger to society. . . .
And I know [the petitioner] apologized to the victims
but I’m not sure whether that was a sincere apology.
. . . Of all the factors that must be considered, the
ones that weigh heavily in the court’s mind are the
nature and circumstances of the offenses, the harm to
the victims, and the need for just punishment.’’ The
court then imposed a total effective sentence of seventy-
five years of imprisonment, fifteen of which were man-
datory, followed by ten years of special parole.
On June 3, 2020, the habeas court issued its memoran-
dum of decision denying the fourth amended habeas
petition. In its memorandum of decision, the habeas
court found that, at the sentencing hearing, trial counsel
did not have any information beyond that which was
already included in the PSI. The PSI did not extensively
discuss the details of the petitioner’s background, to
which the petitioner testified at the habeas trial. On
this subject, the habeas court stated: ‘‘Significant and
extensive evidence was presented at the habeas trial
by the petitioner and . . . DeSauteles. This evidence
is compelling and should have been available to [the
petitioner’s trial counsel] to present at sentencing.
Although the attorney-client relationship had deterio-
rated between the conclusion of the . . . trial and the
sentencing, which prompted the petitioner to unsuc-
cessfully seek the replacement of [his trial counsel,
trial] counsel’s efforts at sentencing were paltry at best.
[Trial counsel] referenced the PSI report and made
almost no argument on the petitioner’s behalf. [Trial
counsel’s] lack of advocacy at sentencing was tanta-
mount to having no counsel at all. The court finds that
[trial counsel] was deficient for failing to investigate,
compile, and present mitigating evidence at the petition-
er’s sentencing.’’
In support of the respondent’s claim of evidentiary
insufficiency as to the element of deficient perfor-
mance, he argues that the petitioner presented no evi-
dence at the habeas trial that trial counsel’s relatively
brief remarks at sentencing and sole reliance on the
petitioner’s PSI to bring information about his troubled
background and upbringing to the attention of the sen-
tencing court fell below an objective standard of reason-
ableness, as required to establish deficient perfor-
mance. He objects, in this regard, to the petitioner’s
alleged failure to establish the prevailing professional
norms governing the conduct of defense attorneys at
sentencing in 2015, to introduce evidence as to what a
reasonably competent defense attorney would have
done in that time frame to prepare himself for sentenc-
ing, or to present additional mitigating evidence to the
trial court that was not included in the PSI. The respon-
dent further argues that the petitioner failed to present
evidence as to whether a reasonably competent defense
attorney would have procured and presented to the
sentencing court the kind of risk assessment analysis
to which the petitioner’s expert, DeSauteles, testified at
the habeas trial. Finally, he contends that the petitioner
presented no evidence that trial counsel’s representa-
tion fell below an objective standard of reasonableness
when the petitioner’s relationship with counsel had
deteriorated to the point that the petitioner had filed a
grievance against counsel and refused to talk to him
on the eve of sentencing, prompting counsel to move
to withdraw from the petitioner’s case. The respondent
did not argue that he had answers to any of these ques-
tions, but only that the petitioner had not supplied those
answers himself in the evidence he presented to the
habeas court. To prevail on this argument, the respon-
dent bears the burden of establishing that the habeas
court erred in ruling that the petitioner’s trial counsel
rendered a constitutionally deficient performance in
connection with his original sentencing.
A major portion of the ‘‘[s]ignificant and extensive
evidence’’ that was presented at the habeas trial by
the petitioner and DeSauteles, which the habeas court
described as ‘‘compelling’’ and found should have been
‘‘available to [trial counsel] to present at sentencing,’’
is a classic kind of mitigating information that courts
routinely consider in fashioning criminal sentences,
which defense attorneys are duty bound to gather and
present on behalf of their clients whenever it is reason-
ably available to them.15 This is information about the
petitioner’s personal background and social history, at
least some of which was gathered and reported to the
trial court by the probation officer who prepared the
PSI in this case. Such information goes directly to the
petitioner’s prior behavior and responses to past crimi-
nal punishments imposed on him, to his proven willing-
ness and ability to follow through with and respond
appropriately to educational opportunities and courses
of treatment previously made available to him, and to
his resulting potential for successful rehabilitation with-
out the need for such serious punishment to deter him
from future criminal behavior as might otherwise be
the case. It also sheds light on his circumstances at the
time he offended in the case before the court, offering
insights as to what led him to engage in such conduct
and whether, and in what circumstances, he is likely
to engage in similar conduct in the future.
In the present case, the initial source of information
about the petitioner’s background and upbringing was
the petitioner himself. He described his difficult child-
hood in detail to the probation officer who prepared his
PSI, listing specifically all of the group homes, hospitals,
and treatment facilities where he had been housed and
treated since his mother first sent him away at the age
of six. Although the social history section of his PSI
briefly mentioned several of these homes, institutions
and treatment facilities by name, it did not describe in
any detail what treatment the petitioner received while
at those facilities, or what behaviors he exhibited, prob-
lems he experienced, or progress he made while there.
That was because the official records of such place-
ments and courses of treatment were never provided
to the probation officer who prepared the PSI, despite
her request for them, before she submitted the PSI.
Indeed, although the PSI was completed on February
27, 2015, more than one full month before the date of
sentencing and signed on March 31, 2015, two days
before the date of sentencing, no addendum to the PSI
was ever prepared to reflect that the requested records
had never been provided to the probation officer who
prepared the PSI or thus to inform the trial court of their
contents. Moreover, although trial counsel received and
reportedly read the PSI before sentencing, he never
took note of or attempted to remedy the unavailability
of such records with the probation officer who prepared
the PSI, or thus to the trial court, before the petitioner’s
sentencing. Had he done so, he would have learned
the details of his nineteen year old client’s checkered
childhood, including thirteen years of institutionaliza-
tion and treatment, as described by the petitioner him-
self and confirmed by DeSauteles, who did obtain and
examine those records before she testified at the habeas
trial. The habeas court credited DeSauteles’ testimony
concerning the petitioner’s supervision and treatment
records and their contents, as well as the petitioner’s
testimony concerning his background, which the
records confirmed.
Although the petitioner’s relationship with trial coun-
sel had broken down by the time of sentencing, that did
not relieve counsel of his obligation to gather mitigating
information from and about the petitioner prior to that
time, or to present such information in support of a plea
for leniency on the petitioner’s behalf at his sentencing
hearing. See Breton v. Commissioner of Correction,
325 Conn. 640, 670, 159 A.3d 1112 (2017) (‘‘a defendant’s
refusal to assist in discovering certain evidence does
not relieve counsel of his or her obligation to investigate
and seek such evidence from other sources’’ (emphasis
omitted)). First, counsel could and should have begun
the process of compiling mitigating information about
the petitioner from the petitioner himself much earlier
than the day before sentencing, when the petitioner
reportedly refused to speak with him. See Sease v. Com-
missioner of Correction, 212 Conn. App. 99, 106–107,
274 A.3d 129 (2022) (‘‘Early in the representation, and
throughout the pendency of the case, defense counsel
should consider potential issues that might affect sen-
tencing. . . . If a presentence report is made available
to defense counsel, counsel should seek to verify the
information contained in it, and should supplement or
challenge it if necessary.’’ (Citations omitted; internal
quotation marks omitted.)) Second, the PSI clearly indi-
cated that the petitioner had cooperated with the proba-
tion officer who prepared the PSI at his PSI interview
by informing her about his troubled background and the
history of his supervision and treatment, the accuracy
of which was confirmed by DeSauteles’ testimony. This
demonstrated that, if trial counsel had spoken with his
client earlier about his upbringing and obtained the
missing records himself, he could have obtained a great
deal of useful mitigating information that was not
included in the PSI for later use at the petitioner’s sen-
tencing. For example, armed with such information,
counsel could have informed the trial court that its
impression of the quality of the petitioner’s childhood
was incorrect, for unlike the bland and understated
description of it offered by the trial court in its sentenc-
ing remarks, the petitioner’s childhood was, in fact,
much worse. Accordingly, the habeas court appropri-
ately found that trial counsel’s failure to take even mini-
mal steps to prepare for and to deliver an advocate’s
presentation to the sentencing court based on such
disturbing information, instead of relying exclusively
on the incomplete PSI for that purpose, marked his
efforts at sentencing as ‘‘paltry,’’ and constituted a con-
stitutionally deficient performance that was tantamount
to having no counsel at all.
In making its finding that trial counsel performed
deficiently, the habeas court also credited and relied
on DeSauteles’ testimony concerning the manner in
which the petitioner’s behavior as a young adult was
probably affected by his troubled childhood and dimin-
ished life prospects due to the several types of risk
factors that apply to persons with his background, as
identified by the CDC. This evidence was introduced
by the petitioner at the habeas trial without objection.
The respondent never claimed before the habeas court,
as he does on appeal, that that evidence furnished an
improper basis for finding that trial counsel’s failure to
present it to the trial court at sentencing constituted
deficient performance in the absence of expert testi-
mony specifically establishing that competent counsel
would have developed and presented it in aid of a cli-
ent’s sentencing in 2015. Therefore, because such an
argument was never presented to or considered by the
habeas court when making its determination that the
petitioner had met his burden of proving deficient per-
formance by his trial counsel, it cannot appropriately
be relied on by the respondent in this appeal as a basis
for affirming the habeas court’s judgment on the alterna-
tive ground that the petitioner failed to prove deficient
performance under the first prong of Strickland. See
State v. Juan J., 344 Conn. 1, 16–17, 276 A.3d 935 (2022)
(declining to review unpreserved claim of alternative
ground to affirm judgment); Mangiafico v. Farmington,
331 Conn. 404, 429, 204 A.3d 1138 (2019) (applying to
alternative ground for affirmance rule that appellate
court will not consider claim, constitutional or other-
wise, that has not been raised and decided in trial court).
We conclude that the habeas court’s challenged ruling
is sufficiently supported by its findings as to deficienc-
ies in counsel’s performance—particularly, by counsel’s
presentation of almost no argument for the petitioner
at sentencing, his near exclusive reliance on the incom-
plete PSI to describe the petitioner’s background and
social history, and his failure to investigate, to compile
and to present to the trial court any of the substantial
mitigating information about the petitioner’s troubled
background—to sustain that ruling. Accordingly, we
must determine if such deficiencies caused the peti-
tioner sufficient prejudice to prevail on his claim of
ineffective assistance of counsel at sentencing.
B
We next address the petitioner’s argument that the
habeas court erred in concluding that, despite its initial
assessment that his trial counsel’s representation of
him at sentencing was so deficient as to be tantamount
to having no counsel at all, the petitioner was not enti-
tled to a presumption that he was prejudiced by coun-
sel’s performance under United States v. Cronic, supra,466 U.S. 648, but, instead, was required to prove that
he had been prejudiced by that deficient performance
under the second prong of the test set forth in Strick-
land v. Washington, supra, 466 U.S. 668. The habeas
court reached that conclusion in its memorandum of
decision denying the petitioner’s postsentencing motion
for reconsideration, in which the petitioner first claimed
that prejudice should have been presumed in the pres-
ent case under Cronic. The habeas court ultimately
ruled that trial counsel’s performance in connection
with the petitioner’s sentencing, despite its proven defi-
ciencies, was not so poor and incomplete as to raise a
presumption of prejudice under Cronic, and thus that
the proper standard for determining if the petitioner
was sufficiently prejudiced by that performance to pre-
vail on his claim of ineffective assistance of counsel at
sentencing was the standard set forth in Strickland.
The relevant portion of the habeas court’s ruling on
the motion for reconsideration, with which we fully
agree, is as follows: ‘‘In Cronic, the court held that such
a presumption will apply under ‘circumstances that are
so likely to prejudice the accused that the cost of litigat-
ing their effect in a particular case is unjustified.’ The
court ‘elaborated on the following three scenarios in
which prejudice may be presumed: (1) when counsel
is denied to a defendant at a critical stage of the pro-
ceeding; (2) when counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing;
and (3) when counsel is called upon to render assistance
in a situation in which no competent attorney could do
so.’ Davis v. Commissioner of Correction, 319 Conn.
548, 555, 126 A.3d 538 (2015), cert. denied sub nom.
Semple v. Davis, 578 U.S. 941, 136 S. Ct. 1676, 194 L.
Ed. 2d 801 (2016). Importantly, the presumption recog-
nized in Cronic ‘must be interpreted narrowly and
applied rarely.’ Taylor v. Commissioner of Correction,
324 Conn. 631, 649, 153 A.3d 1264 (2017), citing Vasquez
v. Commissioner of Correction, 128 Conn. App. 425,
436–38, 17 A.3d 1089, cert. denied, 301 Conn. 926, 22
A.3d 1277 (2011). In order for Cronic to apply, ‘counsel’s
failure to advocate for the defendant during the sentenc-
ing proceeding must be complete, rather than at specific
points.’ . . . Davis v. Commissioner of Correction,
supra, [556], citing Bell v. Cone, 535 U.S. 685, 697, 122
S. Ct. 1843, 152 L. Ed. 2d 914 (2002). ‘Various courts, in
explaining the line that divides Strickland and Cronic,
have likewise held that specific errors in representation,
for which counsel can provide some reasonable expla-
nation, are properly analyzed under Strickland. . . .
Counsel’s complete failure to advocate for a defendant,
however, such that no explanation could possibly jus-
tify such conduct, warrants the application of Cronic.
. . . In the spirit of Bell, courts have drawn a distinction
between ‘‘maladroit performance’’ and ‘‘nonperform-
ance’’ by applying Cronic in cases where counsel’s con-
duct goes beyond ‘‘bad, even deplorable assistance’’ and
constitutes ‘‘no representation at all . . . .’’’ (Citations
omitted.) Davis v. Commissioner of Correction, supra,
556.’’ To illustrate this point, the habeas court took
special note of our Supreme Court’s decision applying
Cronic in Davis, in which counsel not only did nothing
to advocate for the petitioner at sentencing, but went
further to agree with the prosecutor’s recommendation
that the court impose the maximum sentence on the
petitioner. Id., 561.
In light of these authorities, the habeas court con-
cluded that Cronic did not apply in the present case
because the petitioner’s trial counsel, deficient though
his performance was, did more than ‘‘ ‘simply attend’ ’’
the sentencing proceeding. Rather, it found, trial coun-
sel had provided the PSI to the petitioner and was
familiar with his criminal record. In addition, it noted,
trial counsel had ‘‘made some remarks, albeit very brief,
in support of the petitioner in an attempt to mitigate
the petitioner’s situation.’’ Accordingly, the court ruled
that the present case is distinguishable from Davis
because, unlike in Davis, trial counsel in the present
case had done at least something, however minimal, to
advance his client’s interests at sentencing.
We agree with the habeas court that, under our law,
the distinction between cases in which a presumption
of prejudice under Cronic may appropriately be applied
to an ineffective assistance of counsel claim and those
in which such a presumption is unwarranted is that
in the former, unlike the latter, counsel’s challenged
representation constitutes or results in the complete
denial of representation to the accused, rather than
poor, even deplorable, representation. Accord Cruz v.
Commissioner of Correction, supra, 206 Conn. App.
27–34; Leon v. Commissioner of Correction, supra, 189
Conn. App. 531; Edwards v. Commissioner of Correc-
tion, supra, 183 Conn. App. 843–44.
We also agree with the habeas court that the record
before it showed that the petitioner’s trial counsel had
done at least something to advance the petitioner’s
interests at sentencing, and thus that counsel’s perfor-
mance did not constitute or result in a complete denial
of representation. In addition to the short list of steps
the court found that trial counsel had taken to advance
the petitioner’s interests at sentencing in the present
case, the record also shows that trial counsel alluded,
in his brief sentencing remarks, to portions of the PSI
that mentioned mitigating facts about the petitioner’s
background, including the petitioner’s occasional
homelessness and his very minor criminal record. Coun-
sel also made an argument to the sentencing court that
the petitioner had a conscience, raising hope for his
redemption, based on his sometimes unsolicited coop-
eration with the police concerning drug dealing and
other criminal activity in the neighborhood.
Furthermore, the court could have found that trial
counsel had attempted to assist the petitioner in con-
nection with his sentencing by advising him, as the
record shows, not to offer a defendant’s version of the
charged offenses at his PSI interview. Such advice was
clearly designed to help the petitioner preserve his
claim of innocence in anticipation of his planned appeal,
where he intended to seek a new trial at which he could
continue to proclaim his innocence. On the basis of
those actions, which trial counsel took to assist the
petitioner in connection with his sentencing, trial coun-
sel’s representation of the petitioner did not constitute
or result in a complete denial of representation of the
sort required to invoke the Cronic presumption. The
habeas court therefore did not err in determining that
Strickland, rather than Cronic, applied to the prejudice
prong of the petitioner’s claim of ineffective assistance
of counsel at sentencing.
C
We next turn to the petitioner’s argument that the
habeas court erred in ruling that, despite trial counsel’s
deficient performance at sentencing, the habeas court
had no power to review or order a remedy for that
deficiency, even if it caused the petitioner prejudice,
because such an order would result in altering the modi-
fied sentence imposed by order of the review division,
in putative violation of the finality provision of the Sen-
tence Review Act. The habeas court appears to have
based this ruling, which it made initially in its final
memorandum of decision then repeated in its postjudg-
ment memorandum of decision denying the petitioner’s
motion for reconsideration, on language in the Sentence
Review Act providing that ‘‘[t]he decision of the review
division in each case shall be final . . . .’’ General Stat-
utes § 51-196 (d). On appeal, the petitioner argues that
this statutory language does not render any ‘‘sentence’’
imposed by order of the review division immune from
legal challenge, but ensures only that all ‘‘decisions’’ of
the review division on the limited issues it is statutorily
empowered to decide—specifically, whether a chal-
lenged sentence is disproportionate, and, if so, how that
sentence should be modified to remedy its dispropor-
tionality—shall be final and, thus, not reviewable.
The petitioner’s reading of the Sentence Review Act
is consistent with its plain language, which provides
only that the ‘‘decision of the review division in each
case shall be final . . . .’’ General Statutes § 51-196 (d).
That reading is confirmed, moreover, by controlling
Connecticut case law, which holds that, notwithstand-
ing the act’s finality provision, illegalities in sentences
modified by order of the review division can be
reviewed and remedied by way of either a writ of error
or a writ of habeas corpus. See State v. Nardini, 187
Conn. 109, 127–28, 445 A.2d 304 (1982) (if sentence
modified by review division ‘‘is illegal in any respect
the appropriate remedy for correcting such illegality is
by appeal to this court . . . by writ of error . . . or
by writ of habeas corpus’’ (citations omitted; emphasis
added)); see also Morrison v. Commissioner of Correc-
tion, 57 Conn. App. 145, 146–49, 747 A.2d 1058 (clarify-
ing that, whereas appropriate procedural vehicle for
challenging legality of any reviewable ruling by review
division itself is writ of error, appropriate procedural
vehicle for challenging constitutionality of any sentence
imposed by review division ‘‘on the basis of ineffective
assistance of counsel or the denial of the petitioner’s
right to counsel’’ is writ of habeas corpus), cert. denied,
253 Conn. 920, 755 A.2d 215 (2000).
In the present case, in the first count of the operative
habeas petition, the petitioner did not challenge any
reviewable ruling by the review division itself, much
less any unreviewable discretionary decision by it as
to either the disproportionality of his original sentence
or the extent to which that sentence should be modified
to remedy its proven disproportionality. Instead, he
claimed that his modified sentence was an unconstitu-
tional product of ineffective assistance of counsel
because his trial counsel’s deficient performance in con-
nection with his original sentencing had prevented the
review division from having access to and considering
all of the detailed mitigating information about his trou-
bled background, which his trial counsel had failed to
present to the trial court. If the petitioner’s trial counsel
had properly investigated, developed and presented
such information to the trial court, the petitioner
argued, then the review division, like the habeas court
in this case, would have had such mitigating information
before it as part of the trial court record when it
reviewed and ordered the modification of his original
sentence for disproportionality. Had such information
been available to the review division, he claims, there is
at least a reasonable probability that the review division
would have ordered a more favorable modification of
his original sentence than the thirty year reduction it
did order, for different reasons, when it acted without
the benefit of such mitigating information.
We conclude that the habeas court had the authority
to hear and decide such a constitutional challenge to the
petitioner’s modified sentence under State v. Nardini,
supra, 187 Conn. 127–28, and to order a proper remedy
for the violation of his right to the effective assistance
of counsel, if such a violation were proved at the habeas
trial, in the form of an order that his sentence be vacated
and his case returned to the trial court for resentencing.
Accordingly, the habeas court erred in ruling that it
was barred from reviewing or granting relief as to that
claim because of the statutorily mandated finality of
the review division’s discretionary disproportionality
and sentence modification decisions.
D
Having determined that the habeas court properly
required the petitioner to prove, under Strickland, that
he was prejudiced by his trial counsel’s deficient perfor-
mance at sentencing, we next review the petitioner’s
claim that the habeas court erred in concluding that he
failed to meet his burden of proof on that issue with
respect to his current total effective sentence, as modi-
fied by order of the review division. The habeas court
based its ruling on what it described as the petitioner’s
failure to present ‘‘any evidence to show that the . . .
review division’s decision would have been even more
favorable to him than the thirty year reduction [it pre-
viously ordered] . . . .’’ The petitioner disputes this
conclusion, contending that he met his burden of proof
on that issue by making two related showings: first,
that as a result of trial counsel’s deficient performance
in connection with his original sentencing, involving
counsel’s failure to present to the sentencing court sig-
nificant mitigating information about the petitioner’s
troubled background and upbringing, such mitigating
information was not made part of the trial court record,
and thus was unavailable to the review division for
the purposes of reviewing his original sentence and
determining if and how it should be modified to remedy
its alleged disproportionality; and second, that the likely
effect of such unpresented mitigating information on
the review division’s assessment of how much his origi-
nal sentence should be modified to remedy its dispro-
portionality, as the review division would have assessed
it in light of such new information, was so substantial
as to undermine confidence that the thirty year sentence
reduction it ordered when acting without knowledge
of such mitigating information would have been found
sufficient to remedy such disproportionality. On that
basis, the petitioner claims that he has demonstrated
a reasonable probability that his current total effective
sentence would have been shorter or more favorable
to him than it now is had his trial counsel not rendered
deficient performance in connection with his original
sentencing. The respondent disagrees, arguing that the
petitioner’s current sentence, as modified by the review
division, is commensurate with the seriousness of the
offenses of which he was convicted in light of all rele-
vant sentencing factors.
We conclude that the likely impact of the mitigating
information that trial counsel failed to present at the
petitioner’s original sentencing undermines confidence
in his original sentence. It thereby follows that such
deficiency undermines confidence in the review divi-
sion’s modification because the review division was
confined to the limited mitigating evidence presented
at the original trial.
1
To begin, there is no question that the direct and
immediate cause of the review division’s inability to
consider the extensive mitigating information concern-
ing the petitioner’s troubled background and upbringing
was trial counsel’s failure to present such information
to the trial court at sentencing. This is so because the
review division’s statutorily prescribed function is lim-
ited to reviewing challenged sentences for alleged dis-
proportionality and ordering that they be modified, if
and to the extent necessary to remedy their proven
disproportionality, solely on the basis of the record
before the trial court when such sentences were
imposed. This is confirmed by the Sentence Review Act
itself, which establishes and prescribes the powers of
the review division, by our rules of practice that govern
the manner in which the review division must exercise
its statutory authority, and by controlling Connecticut
case law interpreting and enforcing these provisions.
Section 51-196 provides in relevant part: ‘‘(a) The
review division . . . may order such different sentence
or sentences to be imposed as could have been imposed
at the time of the imposition of the sentence under
review . . . . (b) . . . In reviewing any judgment,
said division may require the production of presentence
or precommitment reports and any other records, docu-
ments or exhibits connected with such review proceed-
ings. . . .’’
Practice Book § 43-25 provides: ‘‘The clerk of the
court in which the application is filed shall forward the
necessary documents to the review division.’’ Practice
Book § 43-26 further provides: ‘‘The defendant, at the
time the application for review is filed, may request the
clerk to forward to the review division any documents
in the possession of the clerk previously presented to
the judicial authority at the time of the imposition of
sentence.’’ Pursuant to Practice Book § 43-27, ‘‘[a] hear-
ing upon an application . . . shall be conducted exped-
itiously upon receipt by the review division of the mate-
rials submitted by the clerk . . . . The parties may file
such briefs or memoranda as are appropriate to assist
the division in the discharge of its duties.’’ Finally, Prac-
tice Book § 43-28 provides: ‘‘The review division shall
review the sentence imposed and determine whether
the sentence should be modified because it is inappro-
priate or disproportionate in the light of the nature of
the offense, the character of the offender, the protection
of the public interest, and the deterrent, rehabilitative,
isolative, and denunciatory purposes for which the sen-
tence was intended.’’ These provisions focus the atten-
tion of the review division on documents and materials
that were in the trial court record at the time the chal-
lenged sentence was imposed and contemplate that the
review of a challenged sentence can take place on the
basis of such materials as soon as they are transmitted
to the review division.
Consistent with that procedure, our Supreme Court
has made it clear that, although review of a challenged
sentence for alleged disproportionality can properly
involve consideration of any sentencing factor, includ-
ing ‘‘the nature of the offense, the character of the
offender, the protection of the public interest, and the
deterrent, rehabilitative, isolative, and denunciatory
purposes for which the sentence was intended’’; Prac-
tice Book § 43-28; the only evidence bearing on such
factors that may appropriately be considered in
determining if the sentence as imposed was dispropor-
tionate is that which was available to the trial court
when it imposed the challenged sentence. Thus, for
example, in Nelson v. Commissioner of Correction,
326 Conn. 772, 777, 167 A.3d 952 (2017), the petitioner
appealed from the review division’s dismissal of his
application for sentence review and reduction, in which
he sought a reduction of his fifty-five year sentence
based on his postsentencing cooperation with the state
as a witness in a murder case. Our Supreme Court
affirmed the review division’s judgment, observing as
follows: ‘‘In reaching its decision, the . . . review divi-
sion explained that it could not lawfully consider the
petitioner’s cooperation with the state because that
cooperation did not take place until after the petition-
er’s sentencing, and, therefore, the sentencing court
could not have known about it.’’ Id., 778; see State v.
Nelson, Superior Court, judicial district of New Britain,
Docket No. CR-05-220383-A (November 2, 2012) (54
Conn. L. Rptr. 904, 905); see also Nelson v. Commis-
sioner of Correction, 208 Conn. App. 878, 265 A.3d
987 (2021), cert. denied, 341 Conn. 902, 268 A.3d 1186(2022). This decision confirms that the review division
is limited, in reviewing a challenged sentence, to consid-
ering only those materials that were before the trial
court at the time of the petitioner’s initial sentencing.
Because the review division can only consider infor-
mation and materials that were put before the trial court
when the sentence under review was imposed, any
alleged failure by trial counsel to present such materials
to the sentencing court necessarily affects not only the
original sentencing proceeding but any subsequent sen-
tence review proceeding as well. Thus, trial counsel’s
failure in the present case to present mitigating informa-
tion to the original sentencing court cannot be remedied
before the review division by presenting such informa-
tion directly to it, and sentence review counsel’s failure
to proffer such materials to the review division cannot
be considered a separate act of ineffective assistance
which operates as an independent intervening cause of
their unavailability to the review division for the pur-
pose of conducting its review.
2
As for the petitioner’s claim that the extensive miti-
gating information about his troubled background and
upbringing, which his trial counsel failed to present to
the sentencing court, and thus to make part of the
trial court record for purposes of sentence review, was
sufficient to undermine confidence in the review divi-
sion’s determination that a thirty year reduction of his
original total effective sentence was sufficient to rem-
edy its disproportionality, the petitioner relies initially
on his own testimony and that of his expert, DeSauteles,
which the habeas court found to be extensive, credible
and compelling.
At the habeas trial, the petitioner testified, more spe-
cifically, that he had grown up in urban communities
beset by high crime and poverty. When he was five or
six years old, he witnessed his mother being attacked
by her boyfriend. The New York Office of Children
and Family Services (family services office) became
involved in the petitioner’s life as a result of his mother’s
neglect. His father used crack cocaine and had no rela-
tionship with the petitioner. At the age of seven, the
petitioner was subjected to sexual abuse. In November,
1999, the petitioner was admitted to a psychiatric hospi-
tal, which, he testified, was a horrible experience. He
was subsequently housed for two years at a group foster
care home, where he was treated for behavior manage-
ment and attention deficit hyperactivity disorder.
The petitioner joined a criminal street gang, the
Bloods, at the age of eleven. In addition, he also began
to use drugs and alcohol around that time. At the age
of twelve, the petitioner witnessed his friend being shot
in the head by a rival gang member, and, subsequently,
the petitioner began to carry a gun. In September, 2004,
he was institutionalized at Hollinswood Hospital as a
result of further intervention by the family services
office. In March, 2005, he was again placed in foster
care. The petitioner was briefly placed in a group home,
Cardinal McCloskey Community Services, but was dis-
charged after just one week following an incident with
another resident. He was then sent to a psychiatric
hospital to be treated for physical aggression and sexu-
ally provocative behavior.
The petitioner was next discharged to McQuade Diag-
nostic Center (McQuade), another group home, with
diagnoses of oppositional defiant disorder and conduct
disorder. The petitioner, on several occasions, ran away
from McQuade to be with his family. He remained at
McQuade for a few years before moving back to The
Children’s Village in August, 2007. The Children’s Village
was unable to care for the petitioner, however, because
he continually ran away, and so he was discharged
in 2009.
After being discharged from The Children’s Village,
the petitioner made his way to Hartford in another effort
to find and rejoin his family. A few weeks after arriving
in Hartford, however, at the age of sixteen, the peti-
tioner was imprisoned at Manson Youth Institution.
After his discharge, he was again arrested and impris-
oned at Northern Correctional Institution. After his sec-
ond discharge, the petitioner lived on the streets or
stayed with random women. He self-medicated with
drugs. Within seven months, the petitioner was back
in prison for the crimes at issue in this case. In October,
2012, the petitioner was diagnosed with cancer, for
which he underwent surgery, chemotherapy, and radia-
tion.16
At the habeas trial, DeSauteles also testified concern-
ing the petitioner’s background, and the habeas court
credited her testimony, stating: ‘‘DeSauteles met with
the petitioner five times, obtained background informa-
tion from him during these sessions, and then applied
. . . CDC . . . risk factors to all the information she
collected. These risk factors . . . are not something
within an individual’s control and help to explain why
they would act a certain way. Risk factors may be
grouped by source; thus, there are individual, family,
peer social, and community risk factors. [DeSauteles]
concluded that multiple risk factors in all the risk factor
groups can be used to explain the petitioner’s behavior.’’
She also responded in the affirmative to a question on
direct examination asking whether ‘‘the kinds of issues
that [affect] a person’s decision making as a juvenile
still affect the decision making of an eighteen year old.’’
DeSauteles testified that she reviewed several
records that corroborated the information that the peti-
tioner had related to her during their meetings concern-
ing his background. These materials included records
from the Behavioral Health Center at Westchester Medi-
cal Center in Valhalla, New York, The Children’s Village
in Dobbs Ferry, New York, and the New York family
services office.
She ‘‘concluded that multiple risk factors in all [of] the
risk factor groups can be used to explain the petitioner’s
behavior. . . . [T]he petitioner has a low IQ, early
involvement in drugs at age eleven, desensitization to
violence through exposure to violence at a young age,
and low commitment to academic achievement. . . .
[T]he petitioner experienced harsh disciplinary prac-
tices, low parental involvement, low emotional attach-
ment to parents and caregivers, low parental education
and income, and parental substance abuse and criminal-
ity. . . . [T]he petitioner experienced associations
with delinquent peers, had a lack of involvement in
conventional activities, poor academic performance,
low commitment to school, and social rejection by
peers. . . . [T]he petitioner grew up with diminished
economic opportunities and in a community where
there is a large concentration of poor residents.’’ She
also testified that, in her experience, mitigation evi-
dence is generally helpful at sentencing and that she,
or someone with her credentials, would have been able
to provide the petitioner’s trial counsel with the same
analysis of the risk factors applicable to the petitioner
that she had given if such a witness had been contacted
by trial counsel before sentencing.
The foregoing information concerning the petition-
er’s troubled background and upbringing that was pre-
sented to the habeas court and found to be so substan-
tially mitigating as to render trial counsel’s failure to
investigate, to compile and to present it at sentencing
a constitutionally deficient performance, is the kind of
information that the review division was empowered
to consider and rely on in evaluating and remedying, if
and to the extent appropriate, the alleged dispropor-
tionality of his challenged sentence. It sheds light on
the underlying reasons for his criminal behavior in light
of his negative life experiences and may be found to
affect the degree to which substantial criminal punish-
ment is necessary or appropriate to protect the public
in light of the deterrent, rehabilitative, isolative, and
denunciatory purposes for which the sentence was
intended.
Consistent with this understanding, the review divi-
sion in the present case expressly considered certain
aspects of the petitioner’s background that were docu-
mented in the trial court record, including his relative
youth and immaturity and his very minor criminal
record. The habeas court noted, however, that such
information in the trial court record was extremely
limited compared to the detailed information about the
petitioner’s background to which he testified at the
habeas trial and DeSauteles had confirmed in her testi-
mony, based on her multiple interviews with the peti-
tioner and her examination of records from the facilities
that had housed and treated the petitioner in his youth.
The trial court record is devoid of many notable facts
concerning the petitioner’s background, which were
not included either in the PSI or in trial counsel’s very
limited sentencing remarks, and thus were not available
for consideration by the review division when reviewing
the petitioner’s challenged sentence. The particular
information not available for consideration by the
review division included all information pertaining to
the petitioner’s exposure to violence at a young age,
both as a gang member and otherwise; the petitioner’s
frequent sexual abuse by older children when he was
seven years old; details concerning the petitioner’s trou-
bled relationship with his drug abusing father; details
concerning his relationship with his mother, who fre-
quently could not care for him herself and left him in
the control of his teenage sister when she went out
of town to work; and details concerning the time the
petitioner spent at various institutions that housed and
treated him in his youth, including the Behavioral
Health Center at Westchester Medical Center in Val-
halla, New York, The Children’s Village in Dobbs Ferry,
New York, and the family services office.
The review division based its finding of dispropor-
tionality and its resulting order that his original total
effective sentence be reduced by thirty years of impris-
onment on the petitioner’s argument that that original
sentence was longer than the maximum sentence for
murder, and thus was far too lengthy for the nonhomi-
cidal offenses of which he had been convicted. The
habeas court’s determination of deficient performance
by trial counsel at sentencing, by contrast, was based
on counsel’s failure to compile and to present to the
trial court substantial, previously unpresented mitigat-
ing information about the petitioner’s troubled back-
ground and upbringing. The habeas court found that
trial counsel’s failure to compile and to present such
information constituted deficient performance because
it deprived the sentencing court of substantial mitigat-
ing information that should have been available to it in
determining how to sentence the petitioner. Notably,
the habeas court also found that ‘‘[s]ignificant and
extensive evidence was presented at the habeas trial
by the petitioner and . . . DeSauteles. This evidence
is compelling and should have been available to [the
petitioner’s trial counsel] to present at sentencing. . . .
[Trial counsel] referenced the PSI report and made
almost no argument on the petitioner’s behalf.’’
In determining whether there is a reasonable proba-
bility that trial counsel’s effective assistance at sentenc-
ing would have produced a more favorable outcome
for the petitioner, the habeas court did not need to
find that a different, more favorable modified sentence
would, in fact, have been imposed on the petitioner had
counsel presented the missing mitigating information
to the sentencing court and thereby made that same
information available to the review division as part of
the trial court record. Instead, the habeas court had to
examine the information not presented to the trial court
at the petitioner’s original sentencing due to trial coun-
sel’s deficient performance and determine if its absence
from the trial court record, and hence from the record
before the sentence review division, undermines confi-
dence in the ultimate outcome of the sentence review
process. See Ruffin v. Commissioner of Correction,
supra, 106 Conn. App. 399. In this appeal, we must
therefore determine whether the absence of such infor-
mation concerning the petitioner’s background from
the trial court record undermines confidence in the
review division’s determination that the disproportiona-
lity of the petitioner’s sentence could appropriately be
remedied by a thirty year reduction of his total effective
sentence rather than a greater reduction of that sen-
tence. We conclude that the potential impact of the
previously unpresented mitigating information about
the petitioner’s troubled background and upbringing on
the petitioner’s sentence was so substantial, and that
the unavailability of such information to the review
division when it ordered the thirty year sentence reduc-
tion, essentially for different reasons, so undermines
confidence in the sufficiency of that reduction to rem-
edy the true nature and extent of the original sentence’s
disproportionality, as to undermine confidence in the
petitioner’s sentence, as modified.
In Sease v. Commissioner of Correction, supra, 212
Conn. App. 99, this court employed a similar approach
in determining if a habeas petitioner had been preju-
diced by the failure of his trial counsel to present sub-
stantial mitigating evidence concerning his mental
health history before the trial court that sentenced him
in a murder case. The court in Sease applied the stan-
dard set forth in Strickland to a claim of ineffective
assistance of counsel at sentencing in which the peti-
tioner argued that his trial counsel ‘‘was ineffective by
failing to properly investigate and to adequately present
evidence of the petitioner’s mental health history in
mitigation at the sentencing hearing.’’ Id., 105. In this
court’s analysis of the prejudice prong of the ineffective
assistance of counsel claim, we described our task as
follows: ‘‘[We] must determine whether, in light of the
mitigating evidence that was presented at the habeas
trial and not presented at sentencing, there is a reason-
able probability that the sentence would have been
less severe. . . . The United States Supreme Court has
observed that, ‘[e]ven though sentencing does not con-
cern the defendant’s guilt or innocence, ineffective
assistance of counsel during a sentencing hearing can
result in Strickland prejudice because any amount of
[additional] jail time has [s]ixth [a]mendment signifi-
cance.’ ’’ (Citation omitted.) Id., 107–108.
In Sease, as in the present case, the sentencing court
had before it for its consideration the contents of the
petitioner’s PSI and the remarks made at sentencing
by the petitioner’s trial counsel. Id., 108. This court
examined the differences between the information con-
tained in the PSI and in the petitioner’s mental health
records, which were admitted at the petitioner’s habeas
trial, in order ‘‘to determine whether there was a reason-
able probability that the additional information con-
tained in the mental health records but not in the [PSI]
could have had an effect on the severity of the petition-
er’s sentence had those records been provided to the
sentencing court as mitigating evidence.’’ Id., 111. This
court ‘‘emphasize[d] that the [PSI] failed to provide
the detailed and expanded psychiatric history that was
presented in the two mental health records that were
admitted as full exhibits at the habeas trial.’’ Id., 113.
‘‘The effectiveness of trial counsel at the sentencing
hearing is not rendered harmless by the [PSI] . . . . A
[PSI] gives a sentencing judge the benefit of a summary
background it has gathered on a defendant. It makes a
recommendation as to whether incarceration is appro-
priate; however, the Office of Adult Probation is not an
advocate for a criminal defendant before the sentencing
court. The role as trial counsel and as an advocate
includes relating to the sentencing court how a client’s
lengthy mental health history could justify some mitiga-
tion of the court’s sentence unless there are strategic
or other good reasons not to do so.’’ Id., 110–11. This
court concluded that, ‘‘[i]nstead of having illuminating
evidence from the mental health records before it, the
sentencing court had only the summary [PSI] that rec-
ommended a lengthy sentence and trial counsel’s state-
ment that he was unaware ‘of some of the things that
came out of this [PSI]’ concerning the petitioner’s men-
tal health concerns. Had the sentencing court been
aware of the lengthy, detailed psychiatric history in the
petitioner’s mental health records, there is a reasonable
probability that his sixty year sentence would have been
less severe.’’ Id., 114–15.
In the present case, as in Sease, the habeas court
found credible the substantial mitigating information
concerning the petitioner’s troubled background that
had been presented to it at the habeas trial and deter-
mined that it was far more detailed and persuasive than
the information presented to the sentencing court in
trial counsel’s sentencing remarks and the PSI. Specifi-
cally, the habeas court stated: ‘‘According to the peti-
tioner, he was born with meningitis and was hospital-
ized for six weeks at birth. Since then, the petitioner’s
life has been replete with a lengthy litany of hardships.
It would serve little purpose to repeat all the details
provided by the petitioner about his very troubled life
and upbringing. The court accepts his recounting as
true. The petitioner’s experiences reflect exposure to
the individual, family, peer social, and community risk
factors identified by . . . DeSauteles, and therefore
can be used to try to explain and mitigate his actions
resulting in his conviction. [Trial counsel] did not pres-
ent in any detail any of the petitioner’s background at
sentencing; instead, counsel simply relied on the PSI
report and its contents.’’17 The habeas court thus con-
cluded that the petitioner had met his burden under
Strickland of proving that trial counsel’s failure to pres-
ent such detailed information to the sentencing court
constituted a constitutionally deficient performance.
We are persuaded that the extensive information con-
cerning the petitioner’s troubled background and
upbringing that was presented to the habeas court but
not to the trial court at sentencing, and which was not
before the review division when it reviewed and ordered
the modification of the petitioner’s original sentence,
is sufficiently mitigating to undermine confidence that
the thirty year reduction of that sentence, as ordered
by the review division, would have been found sufficient
to remedy the disproportionality of that sentence had
counsel not failed to present such information in con-
nection with the petitioner’s original sentencing.
Because the absent information supports different rea-
sons for determining that the petitioner’s original sen-
tence was disproportionate than those advanced before
the review division, we conclude that there is a reason-
able probability that the review division’s order modi-
fying his original sentence would have been even more
favorable to him than the thirty year reduction it did
order if counsel’s deficient performance had not
deprived it of such mitigating information.
The judgment is reversed as to count one of the fourth
amended habeas petition only with respect to the claim
that the petitioner’s trial counsel provided ineffective
assistance at sentencing and the case is remanded to the
habeas court with direction to grant the fourth amended
habeas petition as to count one in part, to vacate the
petitioner’s modified total effective sentence and to
remand the case to the trial court for resentencing; the
judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
Although § 29-35 (a) was the subject of amendments in 2011 and 2016;
see Public Acts 2011, No. 11-213, § 47; Public Acts 2016, No. 16-193, § 9;
those amendments have no bearing on the merits of this appeal. In the
interest of simplicity, we refer to the current revision of the statute.
2
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
3
Practice Book § 23-30 provides: ‘‘(a) The respondent shall file a return
to the petition setting forth the facts claimed to justify the detention and
attaching any commitment order upon which custody is based.
‘‘(b) The return shall respond to the allegations of the petition and 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.’’
4
Practice Book § 23-31 provides: ‘‘(a) If the return alleges any defense or
claim that the petitioner is not entitled to relief, and such allegations are
not put in dispute by the petition, the petitioner shall file a reply.
‘‘(b) The reply shall admit or deny any allegations that the petitioner is
not entitled to relief.
‘‘(c) The reply shall allege any facts and assert any cause and prejudice
claimed to permit review of any issue despite any claimed procedural default.
The reply shall not restate the claims of the petition.’’
5
The review division may modify sentences only in accordance with the
provisions of Practice Book § 43-23 et seq. and General Statutes § 51-194
et seq.
6
At the hearing before the review division, the petitioner was represented
by Attorney John Franckling.
7
The court also ordered briefing on whether it was barred from consider-
ing the constitutionality of the petitioner’s modified sentence on the basis
of any of the special defenses raised by the respondent and whether the
court had to conduct an in camera review of the internal affairs and personnel
records when the police department had not asserted any statutory privilege
and sought to quash the release of the records.
8
DeSauteles was disclosed as an expert for the petitioner on March 14,
2019, subsequent to the first day of the habeas trial.
9
General Statutes § 51-196 (d) provides in relevant part: ‘‘The decision of
the review division in each case shall be final . . . .’’
10
The motion was styled as a ‘‘motion for reconsideration, or in the
alternative, to open the judgment, amend the habeas petition and reargue.’’
11
‘‘To the extent that factual findings are challenged, this court cannot
disturb the underlying facts found by the habeas court unless they are clearly
erroneous. . . . [A] finding of fact is clearly erroneous when there is no
evidence in the record to support it . . . or when although there is evidence
to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.’’ (Internal
quotation marks omitted.) Budziszewski v. Connecticut Judicial Branch,
199 Conn. App. 518, 523, 237 A.3d 792, cert. denied, 335 Conn. 965, 240 A.3d
283 (2020).
12
The petitioner also claims that the state knew of and failed to disclose
evidence of Harris’ bias in favor of the state. The claim of bias stems from
the petitioner’s prior assertion that Harris had an undisclosed agreement
with the state for a sentence modification in exchange for testimony against
the petitioner in the underlying criminal trial. In part I A of this opinion,
however, this court rejected that claim, concluding that the record did not
support a finding that the state had promised any specific sentence reduction
to Harris, but had simply agreed to bring Harris’ cooperation to the attention
of the judge who would later sentence him on his own pending criminal
charges, all of which was fully disclosed through Harris’ testimony. The
petitioner’s claim as to Harris’ allegedly undisclosed bias thus necessarily
fails, and we need not address it further.
13
The court informed the petitioner of its ruling as follows: ‘‘Sir, I under-
stand you wish for [your trial counsel] to withdraw as your counsel. But
for today’s purposes, you do not get a new attorney. . . . I’ve observed [trial
counsel] throughout the entire trial. He represented you very adequately; it
was a tough case for him to win, and the jury found you guilty. So, there’s
nothing he did that I observed during the trial that would warrant him being
removed from this case.’’
14
The PSI was completed on February 27, 2015, without input from the
petitioner’s trial counsel, and included the following pertinent information.
The petitioner did not provide an offender’s version at the advice of his
trial counsel. The PSI noted that the petitioner did not have a relationship
with his father and that, at the age of seven, his mother placed him in foster
care because she could not handle him. He spent three years at The Children’s
Village in Dobbs Ferry, New York, where he was diagnosed with attention
deficit hyperactivity disorder and anger issues and was prescribed medica-
tions to treat those disorders, which he took between the ages of seven and
fifteen. At the age of ten, after spending time back home with his mother,
the petitioner spent time in a psychiatric hospital in Valhalla, New York,
from which he ran away on numerous occasions in an effort to be reunited
with his mother, who had moved to Connecticut. The petitioner’s mother
stated that the petitioner seemed to look for negative company, and his
sister stated that he always hung around the wrong people. The petitioner
indicated that, prior to his arrest in the present case, he became homeless
and was taken in by a married couple in Hartford, who saw him sleeping
in a park and wanted to help him. The couple described the petitioner as
being respectful toward them and helpful around their home.
In 2012, while incarcerated, the petitioner was diagnosed with cancer
after discovering a lump on his chest. As a result, he underwent six weeks
of radiation and chemotherapy. Additionally, the PSI revealed that the peti-
tioner began smoking marijuana at the age of eleven and that he had tried
cocaine a few times, used ecstasy pills, and became addicted to heroin. The
petitioner’s disciplinary history with the Department of Correction includes
thirteen disciplinary reports. The PSI also indicated that the petitioner is a
member of a gang.
Various records were requested from the New York Office of Children
and Family Services, The Children’s Village, and the psychiatric hospital in
Valhalla, but, as of the time of the writing of the PSI, no records had
been received.
Finally, the summary recommendation in the PSI stated: ‘‘The offender
has a minimal prior record, however, based on the extreme nature of the
instant offense a lengthy period of incarceration is warranted . . . .’’
15
‘‘[S]trategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional judgments
support the limitations on investigation. In other words, counsel has a duty
to make reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary. . . . [I]n Wiggins v. Smith,
[539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003)] . . . the United
States Supreme Court held that although defense counsel was aware of
certain aspects of the defendant’s background, counsel’s failure to compile
a complete social history of the defendant was objectively unreasonable
and, thus, counsel rendered deficient performance by failing to make a
fully informed decision when deciding against presenting such mitigation
evidence.’’ (Citation omitted; internal quotation marks omitted.) Breton v.
Commissioner of Correction, 325 Conn. 640, 669, 159 A.3d 1112 (2017).
16
The petitioner also testified at the habeas trial that, when he was five
years old, his mother’s boyfriend drank a lot of alcohol, was violent with
the petitioner, his sister, and his mother, and beat the petitioner on multiple
occasions. In addition, he witnessed his mother’s boyfriend choke his mother
in the kitchen of their home, and he and his sister grabbed a ‘‘bucket of
knives’’ and a ‘‘bat’’ in an effort to help their mother. He testified that, when
he was seven, his godsister ‘‘used [to] make [him] perform oral sex on
her,’’ and that ‘‘[i]t happened often.’’ Also, when he was seven, he spent
approximately three months in his father’s care over the course of a summer.
He testified that, during that time, his stepbrother would beat him and ‘‘make
[him] go in the corner, face the corner, and [make] [him] kneel on rice and
stuff like that.’’ He never saw his father again after that summer. During
his time spent at a psychiatric hospital in Valhalla, New York, he was often
put in five point restraints. Throughout his childhood, his older sister was
his primary caretaker, even though she herself was a child, because his
mother spent weeks at a time working in New Jersey. The only role model
he had in his life other than his sister was his sister’s boyfriend, who
ultimately introduced him to the Bloods. He testified that, as a result of
being made a member of the Bloods at age eleven, he witnessed a lot of
violence, including daily fights and frequent shootings. At age eleven, he
had sex with a prostitute who was more than twenty years older than him,
and, on more than one occasion, he had sexual relations with much older
adult women. At age twelve, he did not attend school on a regular basis;
however, he consumed drugs and alcohol regularly. At the age of sixteen,
he was stabbed during a gang related altercation.
17
‘‘[D]ue process does not require that information considered by the
trial judge prior to sentencing meet the same high procedural standard as
evidence introduced at trial. Rather, judges may consider a wide variety of
information. . . . [T]he trial court may consider . . . information relative
to the circumstances of the crime and to the convicted person’s life and
circumstance. . . . It is a fundamental sentencing principle that a sentenc-
ing judge may appropriately conduct an inquiry broad in scope, and largely
unlimited either as to the kind of information he may consider or the source
from which it may come.’’ (Internal quotation marks omitted.) State v.
Suzanne P., 208 Conn. App. 592, 611, 265 A.3d 951 (2021).