Helmedach v. Commissioner of Correction

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JENNIFER HELMEDACH v. COMMISSIONER OF
CORRECTION
(AC 38026)
Lavine, Prescott and Mihalakos, Js.
Argued April 18—officially released September 27, 2016
(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
Robert J. Scheinblum, senior assistant state’s attor-
ney, with whom, on the brief, were Michael Dearington,
state’s attorney, and Adrienne Maciulewski, assistant
state’s attorney, for the appellant (respondent).
Conrad Ost Seifert, assigned counsel, for the appel-
lee (petitioner).
Opinion
PRESCOTT, J. The respondent, the Commissioner of
Correction, appeals from the judgment of the habeas
court in favor of the petitioner, Jennifer Helmedach,
granting her petition for a writ of habeas corpus.1 On
appeal, the respondent claims that the habeas court
improperly concluded that the petitioner’s trial counsel
provided ineffective assistance of counsel by failing to
inform the petitioner of a plea offer until after she
had testified at the underlying criminal trial. Having
thoroughly reviewed the record prior to oral argument,2
we concluded after oral argument that the habeas court
properly granted the petitioner’s petition for a writ of
habeas corpus. Immediately thereafter, we orally
affirmed the judgment of the habeas court.3 Consistent
with that ruling, we now issue this written opinion.
The following facts, as set forth by our Supreme Court
in the petitioner’s direct criminal appeal, and proce-
dural history are relevant to this appeal. ‘‘On September
1, 2004 . . . the [petitioner, the petitioner’s infant
daughter, Ayanna, and the petitioner’s boyfriend, David
Bell, were driven] to the apartment of Sarah Tarini in
Meriden. Tarini lived in the apartment with her ten
year old daughter, Summer, and she had been allowing
Michael Fontanella and Shanna Kropp to stay in one
of the apartment’s two bedrooms for several weeks.
The [petitioner] and Bell asked Tarini if they could
spend the night there and told her that they would be
going to New York the next day. Tarini agreed to let
the [petitioner], Ayanna and Bell stay in the bedroom
where Fontanella and Kropp usually stayed.
‘‘On September 2, 2004, Kropp told the [petitioner]
that she and Bell would have to leave Tarini’s apart-
ment. The [petitioner] appeared to Kropp to be aggra-
vated and annoyed at this request. At about 6 p.m., the
[petitioner] left the apartment with Ayanna, stating that
she was going to call someone on a pay telephone
to get a ride. The [petitioner] called the victim, Faye
Bennett, who was a good friend of the [petitioner] and
someone she had known since childhood, and asked
her to come to the location of the pay telephone to
pick her up. The victim, who was approximately six or
seven months pregnant, arrived in her Chevrolet Blazer
a short time later. The [petitioner] repaid the victim
$20 that she previously had borrowed from her and the
victim gave the [petitioner] a pair of sneakers as a
birthday gift for Ayanna. At about 7 p.m., the victim
called her boyfriend, told him that she and the [peti-
tioner] were going to Tarini’s apartment, and asked if
he wanted to join them. He declined.
‘‘At approximately 7:30 p.m. that same evening, Tar-
ini, Summer, Fontanella and Kropp left the apartment
and walked to a nearby store to purchase cell phone
minutes and ice cream. At approximately 7:45 p.m.,
Scott Baustien, who lived in the first floor apartment
directly below Tarini’s apartment, saw the [petitioner]
and the victim walk by his window and heard them walk
up to the second floor and enter Tarini’s apartment. He
then heard thumping noises. Baustien also noticed that
the victim’s Blazer, which was parked in the driveway,
was blocking his car and a car belonging to Clarence
Labbe, who lived above Tarini in the building’s third
floor apartment. Baustien telephoned Labbe to tell him
about the Blazer. Labbe told Baustien that he also had
heard banging noises coming from Tarini’s apartment,
which he assumed were caused by children playing.
‘‘Baustien then went outside to check the Blazer that
was blocking the driveway and saw the [petitioner]
seated behind the steering wheel and Ayanna in the
passenger seat. He told the [petitioner] that she could
not park there. The [petitioner], who appeared to Baus-
tien to be extremely nervous and as ‘white as a ghost,’
said, ‘I’m sorry, I’m sorry, I’m sorry,’ and backed the
Blazer quickly down the driveway toward the road,
hitting the corner of the apartment building in the pro-
cess. After Baustien returned to his apartment, he heard
footsteps going down the front stairs of the apartment
and a car horn beeping several times.
‘‘At approximately 8:15 p.m., Tarini, Summer, Fonta-
nella and Kropp returned to the apartment. Tarini
knocked on the door of the bedroom where the [peti-
tioner] and Bell had been staying. When she received
no response, she opened the door and saw that the
room was covered with blood and that there was a
body in a garbage bag on the bed. Tarini immediately
asked Fontanella to take Summer upstairs to Labbe’s
apartment and called 911. A short time later, Captain
Timothy Topulos and Officer Justin Hancort of the Meri-
den police department arrived at the scene. They met
Tarini and Fontanella, who were visibly shaken, outside
the building. They then entered Tarini’s apartment and
observed the bloody crime scene and the victim’s body
on the bed. They also saw a baby bottle on the bedroom
floor. Topulos summoned medical personnel, who
determined that the victim was dead.
‘‘Initially, the police misidentified the victim as the
[petitioner]. It was not until the next day, during the
victim’s autopsy, that the victim was correctly identified
as Bennett. The chief medical examiner determined
that the cause of the victim’s death was multiple stab
wounds and strangulation. The [petitioner] and Bell
were apprehended in the Bronx, New York, approxi-
mately eight days after the victim’s murder.’’ (Footnotes
omitted.) State v. Helmedach, 306 Conn. 61, 66–69, 48
A.3d 664 (2012).
During the jury trial that followed, ‘‘[t]he state’s the-
ory was that the [petitioner] had lured the victim to
Tarini’s apartment so that she and Bell . . . could steal
the victim’s car and money and escape to New York. The
[petitioner] claimed that the evidence did not support a
finding that she had lured the victim to the apartment
so that she and Bell could rob her, and that her participa-
tion in the robbery after Bell’s assault on the victim
and his threat to kill her if she did not get the victim’s
car and wait for him in front of the building was the
result of duress.’’ Id., 69–70. Ultimately, however, the
petitioner was found guilty of felony murder in violation
of General Statutes § 53a-54c, robbery in the first degree
in violation of General Statutes § 53a-134 (a) (1), and
conspiracy to commit robbery in the third degree in
violation of General Statutes §§ 53a-48 and 53a-136. She
was sentenced by the trial court to a term of incarcera-
tion of thirty-five years. The judgment of conviction
was affirmed on appeal. See State v. Helmedach, 125
Conn. App. 125, 8 A.3d 514 (2010), aff’d, 306 Conn. 61,
48 A.3d 664 (2012).
Thereafter, on November 19, 2014, the petitioner filed
an amended petition for a writ of habeas corpus, alleg-
ing ineffective assistance of trial counsel. The petitioner
claimed that the performance of her trial counsel, Rich-
ard Reeve, was deficient because he failed to timely
and meaningfully communicate a plea offer of ten years
to the petitioner.4 On November 19 and December 12,
2014, the habeas court, Cobb, J., held a trial in which
it heard testimony from the petitioner; Reeve; Gary
Nicholson, the assistant state’s attorney who prose-
cuted the case; and Michael Sheehan, Reeve’s law
partner.
After trial, the habeas court granted the petition for
a writ of habeas corpus. In a corrected written memo-
randum of decision dated August 26, 2015,5 the court
concluded that Reeve’s failure to relay the favorable
offer to the petitioner in a timely manner before it
was withdrawn fell below the objective standard of
reasonableness required by attorneys under the state
and federal constitutions. The habeas court granted
certification to appeal. This appeal followed.
The respondent claims that the habeas court improp-
erly concluded that Reeve had provided ineffective
assistance to the petitioner by delaying to inform her
of a plea offer until after she had completed her trial
testimony. More specifically, the respondent contends
that the habeas court improperly relied on Missouri v.
Frye, U.S. , 132 S. Ct. 1399, 182 L. Ed. 2d 379
(2012), and Sanders v. Commissioner of Correction,
83 Conn. App. 543, 851 A.2d 313, cert. denied, 271 Conn.
914, 859 A.2d 569 (2004), in finding that Reeve’s perfor-
mance was deficient, because neither Frye nor Sanders
addresses whether it is reasonable trial strategy for a
defense attorney to delay informing the client of a plea
offer if valid strategic reasons exist for that decision.
The respondent also argues that Reeve’s performance
was objectively reasonable under the circumstances.
In response, the petitioner argues that Reeve’s con-
duct could not be reasonable trial strategy because, as
a matter of law, the decision made by Reeve to delay
informing the petitioner of a favorable plea offer is not
one that counsel constitutionally is allowed to make
because it undermined the petitioner’s ability to mean-
ingfully exercise a right that belongs solely to her. Thus,
in the petitioner’s view, Reeve’s conduct cannot be char-
acterized as a matter of trial strategy. The petitioner
alternatively contends that if this court decides that
Reeve’s decision to delay communicating the plea offer
to her was a matter of strategy, it should conclude that
Reeve did not make a reasonable strategic decision
under the circumstances. We agree with the petitioner
that Reeve’s decision to delay informing the petitioner
about a plea offer was not within the realm of strategic
decisions that an attorney is allowed to make.
The following additional facts, as found by the habeas
court, are relevant to this claim. ‘‘Reeve was appointed
to represent the petitioner after her arrest and repre-
sented her throughout the pretrial and trial proceedings
in this case. . . . Like most criminal cases, the parties
in this case engaged in pretrial plea negotiations in an
attempt to resolve the case prior to trial. On December
18, 2006, the state made its first plea offer to the peti-
tioner during a supervised pretrial with Judge Damiani.
With Judge Damiani’s assistance, the state offered the
petitioner a plea to robbery or conspiracy to commit
robbery and incarceration in the range of fifteen to
twenty years, with the right to argue to the court that
it impose a sentence at the low range or the ‘floor.’ The
judge approved the [plea offer], but indicated to [Reeve]
at the pretrial that he would likely sentence the peti-
tioner at the high end of the range, absent some compel-
ling circumstances that arose at the sentencing hearing.
[Reeve] said he would discuss the offer with the peti-
tioner and the state indicated it would discuss it with
the victim’s family.
‘‘[Reeve] met with the petitioner and relayed to her
the offer. He advised the petitioner about the strengths
and weaknesses of the state’s case, her defense and
the risks of going to trial. The petitioner agreed to accept
the offer. On January 10, 2007, [Reeve] wrote to [Nichol-
son] and indicated that the petitioner accepted the offer.
. . . [Reeve] did not receive a written response from
[Nicholson].
‘‘At the next supervised pretrial, in mid-January 2007,
[Nicholson] informed [Reeve] and the judge that the
victim’s family did not support the proposed agreement,
and as a result, the state was withdrawing it. As a result,
the parties decided to forgo plea negotiations until after
the petitioner’s codefendant, [Bell], had been tried or
his case resolved.
‘‘On May 23, 2007, Bell was convicted on all charges
and on December 14, 2007, was sentenced to eighty-
five years incarceration.
‘‘This case was then placed on the trial list.
‘‘On August 24, 2007, [Reeve] filed a motion to compel
specific performance of the original plea offer. That
motion was denied [by the court].
‘‘The case proceeded to trial and while the parties
were selecting the jury, the state made its second plea
offer to the petitioner. That offer was twenty-two years,
suspended after seventeen years incarceration. After
discussing this offer with [Reeve], the petitioner
rejected it.
‘‘The state then made its third offer, during jury selec-
tion or during the first days of its case-in-chief. That
offer was fourteen years to serve. The petitioner
rejected this third offer, after conferring with [Reeve].
[Reeve] explained to the petitioner that if convicted she
would be facing at least thirty years in prison, as the
felony murder charge had a twenty-five year mandatory
minimum sentence.
‘‘The petitioner rejected the second and third offers
because the state’s case had been weakened as a result
of its key witness’, Gabriel Colon, recantation of his
prior oral statement to police that the petitioner spoke
to him about participating in the setup of the robbery
of the victim. Because Colon had not provided a written
statement to police, his prior statement could not be
introduced under [the] Whelan doctrine.6 Colon was the
only witness that was able to tie the petitioner directly
to the robbery. Tying the petitioner to the robbery was
essential to establishing the underlying felony on the
felony murder charge.
‘‘The petitioner’s criminal trial was held on various
days between October 1, 2007, and October 16, 2007.
On Friday, October 5, 2007, the state rested its case.
‘‘After the state rested, the case was continued to the
following Tuesday, October 9, 2007. The courts were
closed on Monday in observance of Columbus Day.
‘‘[Nicholson] did not make any offers to the petitioner
on Friday, October 5, 2007. Over the weekend, [Reeve]
spent numerous hours at the York prison in Niantic,
where the petitioner was incarcerated, preparing the
petitioner for her testimony, which would begin the
following Tuesday.
‘‘On Tuesday morning, October 9, 2007, [Reeve]
arrived at his office early to prepare for trial. Between
9:15 and 9:30 a.m., [Reeve] received an unexpected call
from [Nicholson]. During the call, [Nicholson] offered
the petitioner ten years to serve. [Reeve] told [Nichol-
son] that he had spent the entire weekend prepping
the petitioner for her testimony on Tuesday. [Reeve]
explained that although he believed that ten years was
a very favorable offer, he was concerned about relaying
it to the petitioner immediately prior to her testimony
because she was young and flustered, and he believed
that this unexpected news would negatively impact her
testimony. [Reeve] asked [Nicholson] if he could convey
the offer after the petitioner testified, and [Nicholson]
said: ‘that’s okay.’
‘‘After the call from [Nicholson] and prior to leaving
for court that Tuesday morning, [Reeve] stopped by the
office of his partner, [Sheehan], to inform him of the
unexpected call he received from [Nicholson], the offer
of ten years, as well as his concerns about relaying the
offer to the petitioner before she testified.
‘‘[Sheehan] agreed that the ten year offer was favor-
able and advised [Reeve] that he should not wait to
communicate the offer to the petitioner until after
she testified.
‘‘In view of [Nicholson’s] acquiescence to leave the
offer open, [Reeve] followed his instincts and did not
relay the offer to the petitioner on Tuesday morning,
but instead waited until after her testimony concluded.
The petitioner’s testimony took two and one-half days.
Upon learning of the ten year offer after she testified,
the petitioner expressed her desire to accept it and
indicated she wanted to discuss it with her mother and
attorney jointly.
‘‘[Reeve] then approached [Nicholson] and told him
the petitioner was interested in accepting the offer of
ten years. [Nicholson] informed [Reeve] that the offer
was withdrawn.
‘‘When [Reeve] returned to his office, he relayed these
events to [Sheehan]. [Sheehan] told him that his failure
to relay the ten year offer to the petitioner prior to its
withdrawal created an issue of [Reeve’s] ineffectiveness
under Sanders v. [Commissioner of Correction, supra,
83 Conn. App. 543]. [Sheehan] was aware of the Sanders
case because he handled the matter on appeal. [Nichol-
son] was also involved in that case, having prosecuted
. . . Sanders.
‘‘With the offer withdrawn, the trial continued to its
conclusion with the petitioner being convicted by the
jury on the charges and later sentenced by the court
to thirty-five years incarceration.
‘‘At some point, [Reeve] approached [Nicholson] and
told him that he had not relayed the ten year offer in
a timely manner and that as a result, he believed there
existed an ineffectiveness claim against him under the
Sanders case. He told Nicholson he felt terrible about
the situation and wished there was something he could
do to remedy it.
‘‘On January 27, 2008, [Reeve] sent a letter to Public
Defender Martin Zeldes, the head of the public defend-
ers’ appellate unit, explaining the circumstances sur-
rounding the final offer of the state, and his failure to
convey the offer to the petitioner prior to its being
withdrawn by the state.
‘‘The petitioner would have accepted the ten year
plea offer prior to its withdrawal had she been informed
of the offer by her counsel in a timely manner, prior
to it being withdrawn.
‘‘The parties stipulated that ‘Judge Damiani would
have accepted the plea resolution and sentenced the
petitioner in accordance with the state’s final offer.’ ’’
As an initial matter, we set forth the applicable stan-
dard of review and principles of law. ‘‘The petitioner’s
right to the effective assistance of counsel is assured
by the sixth and fourteenth amendments to the federal
constitution, and by article first, § 8, of the constitution
of Connecticut.’’ Sanders v. Commissioner of Correc-
tion, supra, 83 Conn. App. 549. ‘‘To succeed on a claim
of ineffective assistance of counsel, a habeas petitioner
must satisfy the two-pronged test articulated in Strick-
land v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). Strickland requires that a peti-
tioner satisfy both a performance prong and a prejudice
prong. To satisfy the performance prong, a claimant
must demonstrate that counsel made errors so serious
that counsel was not functioning as the counsel guaran-
teed . . . by the [s]ixth [a]mendment [to the United
States constitution]. . . . To satisfy the prejudice
prong, a claimant must demonstrate that there is a rea-
sonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have
been different. . . . The claim will succeed only if both
prongs are satisfied.’’ (Citations omitted; internal quota-
tion marks omitted.) Small v. Commissioner of Correc-
tion, 286 Conn. 707, 712–13, 946 A.2d 1203, cert. denied
sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481,
172 L. Ed. 2d 336 (2008). ‘‘[A] court need not determine
whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant
. . . .’’ Strickland v. Washington, supra, 697.
‘‘The habeas court is afforded broad discretion in
making its factual findings, and those findings will not
be disturbed unless they are clearly erroneous. . . .
[T]he habeas judge, as the trier of facts, is the sole
arbiter of the credibility of witnesses and the weight
to be given to their testimony. . . . The application of
the habeas court’s factual findings to the pertinent legal
standard, however, presents a mixed question of law
and fact, which is subject to plenary review.’’ (Citations
omitted; internal quotation marks omitted.) Gaines v.
Commissioner of Correction, 306 Conn. 664, 677, 51
A.3d 948 (2012). On appeal, the respondent expressly
disavowed making any challenge to the habeas court’s
factual findings.
‘‘The Sixth Amendment guarantees a defendant the
right to have counsel present at all critical stages of
the criminal proceedings.’’ (Internal quotation marks
omitted.) Missouri v. Frye, supra, 132 S. Ct. 1405.
‘‘[P]lea bargains have become so central to the adminis-
tration of the criminal justice system that defense coun-
sel have responsibilities in the plea bargain process,
responsibilities that must be met to render the adequate
assistance of counsel that the Sixth Amendment
requires in the criminal process at critical stages.
Because ours is for the most part a system of pleas,
not a system of trials . . . it is insufficient simply to
point to the guarantee of a fair trial as a backstop that
inoculates any errors in the pretrial process. . . . In
today’s criminal justice system, therefore, the negotia-
tion of a plea bargain, rather than the unfolding of a
trial, is almost always the critical point for a defendant.’’
(Citations omitted; internal quotation marks omitted.)
Id., 1407. In Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct.
366, 88 L. Ed. 2d 203 (1985), the United States Supreme
Court expressly established that Strickland’s two-part
test governs ineffective assistance claims in the plea
bargain context.
In the present case, the respondent concedes that if
indeed Reeve performed deficiently, the habeas court
properly determined that the petitioner suffered preju-
dice on the basis of a reasonable probability that (1)
the petitioner would have accepted the ten year plea
offer had it been conveyed to her immediately, and (2)
the trial court would have accepted the plea agreement
and sentenced the petitioner accordingly. Our review
and analysis, therefore, is confined to the first prong
of Strickland, the performance prong.
‘‘In any case presenting an ineffectiveness claim, the
performance inquiry must be whether counsel’s assis-
tance was reasonable considering all the circum-
stances. . . . Judicial scrutiny of counsel’s
performance must be highly deferential. It is all too
tempting for a defendant to second-guess counsel’s
assistance after conviction or adverse sentence, and it
is all too easy for a court, examining counsel’s defense
after it has proved unsuccessful, to conclude that a
particular act or omission of counsel was unreasonable
. . . . A fair assessment of attorney performance
requires that every effort be made to eliminate the dis-
torting effects of hindsight, to reconstruct the circum-
stances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the
time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption
that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defen-
dant must overcome the presumption that, under the
circumstances, the challenged action might be consid-
ered sound trial strategy. . . .
‘‘Thus, a court deciding an actual ineffectiveness
claim must judge the reasonableness of counsel’s chal-
lenged conduct on the facts of the particular case,
viewed as of the time of counsel’s conduct.’’ (Citations
omitted; internal quotation marks omitted.) Strickland
v. Washington, supra, 466 U.S. 688–90. ‘‘[S]trategic
choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchal-
lengeable; [but] strategic choices made after less than
complete investigation are reasonable precisely to the
extent that reasonable professional judgments support
the limitations on investigation.’’ (Internal quotation
marks omitted.) Michael T. v. Commissioner of Correc-
tion, 319 Conn. 623, 632–33, 126 A.3d 558 (2015).
At the same time, however, if the choice at issue
implicates a fundamental right of constitutional magni-
tude, such a choice is ‘‘distinguishable from [a] tactical
trial [right] that [is] not personal to the defendant and
that counsel may choose to [make] as part of trial strat-
egy.’’ (Internal quotation marks omitted.) State v.
Fleury, 135 Conn. App. 720, 728, 42 A.3d 499, cert.
denied, 305 Conn. 919, 47 A.3d 388 (2012). ‘‘An attorney
undoubtedly has a duty to consult with the client regard-
ing important decisions, including questions of over-
arching defense strategy. . . . That obligation,
however, does not require counsel to obtain the defen-
dant’s consent to every tactical decision. . . . But cer-
tain decisions regarding the exercise or waiver of
basic trial rights are of such moment that they cannot
be made for the defendant by a surrogate. A defendant
. . . has the ultimate authority to determine whether
to plead guilty, waive a jury, testify in his or her own
behalf, or take an appeal. . . . Concerning those deci-
sions, an attorney must both consult with the defendant
and obtain consent to the recommended course of
action.
‘‘A guilty plea . . . is an event of signal significance
in a criminal proceeding. By entering a guilty plea, a
defendant waives constitutional rights that inhere in a
criminal trial, including the right to trial by jury, the
protection against self-incrimination, and the right to
confront one’s accusers. . . . While a guilty plea may
be tactically advantageous for the defendant . . . the
plea is not simply a strategic choice; it is itself a convic-
tion . . . and the high stakes for the defendant require
the utmost solicitude . . . .’’ (Citations omitted;
emphasis added; internal quotation marks omitted.)
Florida v. Nixon, 543 U.S. 175, 187, 125 S. Ct. 551, 160
L. Ed. 2d 565 (2004).
‘‘The opportunity to testify is . . . a necessary corol-
lary to the Fifth Amendment’s guarantee against com-
pelled testimony. . . . Every criminal defendant is
privileged to testify in his own defense, or to refuse to
do so. . . . [The Fifth Amendment’s privilege against
self-incrimination] is fulfilled only when an accused is
guaranteed the right to remain silent unless he chooses
to speak in the unfettered exercise of his own will. . . .
The choice of whether to testify in one’s own defense
. . . is an exercise of the constitutional privilege.’’
(Citations omitted; internal quotation marks omitted.)
Rock v. Arkansas, 483 U.S. 44, 52–53, 107 S. Ct. 2704,
97 L. Ed. 2d 37 (1987). With these legal principles in
mind, we turn to the merits of the case.
We agree with the petitioner that this court need not
consider whether, under the circumstances, Reeve’s
challenged action might be considered sound trial strat-
egy, because the challenged action does not fall under
the umbrella of trial strategy at all. The habeas court
found that although Reeve ‘‘believed that ten years was
a very favorable offer, he was concerned about relaying
it to the petitioner immediately prior to her testimony
because she was young and flustered, and he believed
that this unexpected news would negatively impact her
testimony.’’ Such paternalistic decision-making on the
part of defense counsel infringed upon the petitioner’s
basic trial right to plead guilty, which she, alone, had the
ultimate authority to determine whether to exercise.7
Moreover, defense counsel’s decision was not a mat-
ter of trial strategy, let alone a reasonable strategic
decision, because, pursuant to Frye, if defense counsel
violates his duty to communicate timely to the accused
formal plea offers from the prosecution, he fails to
render the effective assistance that the United States
constitution requires. See Missouri v. Frye, supra, 132
S. Ct. 1408. The basis for this rule is grounded largely
in professional performance standards that govern the
practice of law. See id.
In Frye, the defendant was charged with a felony
arising from driving with a revoked license. Id., 1404.
The prosecution sent a letter to his defense counsel
that offered a choice between two plea bargains, with
the offers set to expire on a fixed date. Id. Defense
counsel did not inform the defendant of the offers, and
after they lapsed, the defendant pleaded guilty but on
more severe terms. See id., 1404–1405. The court held
that, ‘‘as a general rule, defense counsel has the duty
to communicate formal offers from the prosecution to
accept a plea on terms and conditions that may be
favorable to the accused. . . . When defense counsel
allowed the offer to expire without advising the defen-
dant or allowing him to consider it, defense counsel
did not render the effective assistance the Constitution
requires. Though the standard for counsel’s perfor-
mance is not determined solely by reference to codified
standards of professional practice, these standards can
be important guides. The American Bar Association
recommends defense counsel ‘promptly communicate
and explain to the defendant all plea offers made by
the prosecuting attorney,’ ABA Standards for Criminal
Justice, Pleas of Guilty 14–3.2 (a) (3d ed. 1999) . . . .
The standard for prompt communication and consulta-
tion is also set out in state bar professional standards
for attorneys.’’ (Citations omitted; emphasis added.)
Id., 1408.
The respondent argues that the holding in Frye does
not apply to the facts of the present appeal because
this is not a ‘‘lapsed plea’’ case, i.e., Reeve did not allow
the state’s ten year plea offer to expire without first
advising the petitioner of it.8 The respondent also argues
that an attorney’s duty to promptly inform his client of
a plea offer, as discussed in Frye, does not constitute
an obligation for the attorney to immediately convey
the plea offer. Therefore, this case requires us to con-
sider the meaning of the term ‘‘promptly’’ as contem-
plated by the United States Supreme Court.
As support for his argument, the respondent specifi-
cally references the language in Frye in which the court
states that ‘‘[a]ny exceptions to [the general] rule [that
defense counsel has the duty to communicate plea
offers to the accused] need not be explored here, for
the offer was a formal one with a fixed expiration date.’’
Id. Because, according to the respondent, Reeve pre-
sented the petitioner with the plea offer at the conclu-
sion of her trial testimony before he was aware the state
withdrew its offer, Frye does not resolve the narrow
question presented by the facts of this case, which,
as framed by the respondent, is, ‘‘whether a criminal
defense attorney performs within the wide range of
reasonable professional assistance by deciding to delay
informing the client of a plea offer for a valid strategic
reason and [when] the attorney has good reason to
believe that the offer would remain open.’’9 (Foot-
note omitted.)
We agree with the respondent that Frye does not
necessarily control this case. We decline, however, to
read Frye as narrowly as urged by the respondent
because the respondent’s assertion essentially ignores
the thorough reasoning that the court provided for the
general rule in Frye, which appears in the court’s opin-
ion immediately after its establishment of the rule. As
previously discussed, the court repeatedly emphasized
the requirement for prompt communication between
defense counsel and client as set forth in both American
Bar Association and state bar professional standards
for attorneys. Id. Indeed, rule 1.4 of this state’s Rules
of Professional Conduct provides in relevant part: ‘‘(a)
A lawyer shall: (1) promptly inform the client of any
decision or circumstance with respect to which the
client’s informed consent . . . is required by these
Rules . . . [and] (3) keep the client reasonably
informed about the status of the matter . . . . (b) A
lawyer shall explain a matter to the extent reasonably
necessary to permit the client to make informed deci-
sions regarding the representation.’’10 (Emphasis
added.) One such circumstance in which an attorney
is required to promptly relay information to the client
is set forth in rule 1.2 (a) of the Rules of Professional
Conduct, which provides in relevant part: ‘‘In a criminal
case, the lawyer shall abide by the client’s decision,
after consultation with the lawyer, as to a plea to be
entered, whether to waive jury trial and whether the
client will testify. . . .’’
In determining whether Reeve acted promptly, within
the confines of Frye, when he delayed informing the
petitioner of the ten year plea offer until after her trial
testimony had concluded, it is necessary to define the
meaning of ‘‘promptly’’ as it is used in rule 1.4 (a) (1)
of our Rules of Professional Conduct. When pressed at
oral argument, the respondent conceded that defense
attorneys have a duty to communicate plea offers
promptly to their clients, but contended that Frye does
not stand for the proposition that defense attorneys are
required to communicate plea offers immediately to
their clients; accordingly, the respondent contends that
the term ‘‘promptly’’ does not equate to the term ‘‘imme-
diately.’’ In contrast, the petitioner asserted that defense
counsel’s duty was to communicate the plea offer imme-
diately and without undue delay. Given that the Rules
of Professional Conduct appear in our Practice Book,
and given that ‘‘[t]he interpretive construction of the
rules of practice is to be governed by the same princi-
ples as those regulating statutory interpretation’’; (inter-
nal quotation marks omitted) Wiseman v. Armstrong,
295 Conn. 94, 99, 989 A.2d 1027 (2010); we employ
our well established tools of statutory construction to
determine the term’s meaning.
‘‘The interpretation and application of a statute, and
thus a Practice Book provision, involves a question of
law over which our review is plenary. . . . The process
of statutory interpretation involves the determination
of the meaning of the statutory language as applied to
the facts of the case . . . . When construing a statute,
[o]ur fundamental objective is to ascertain and give
effect to the apparent intent of the legislature. . . . In
other words, we seek to determine, in a reasoned man-
ner, the meaning of the statutory language as applied
to the facts of [the] case . . . . In seeking to determine
that meaning . . . [we] consider the text of the statute
itself and its relationship to other statutes. If, after
examining such text and considering such relationship,
the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratex-
tual evidence of the meaning of the statute shall not
be considered. . . . When a statute is not plain and
unambiguous, we also look for interpretive guidance
to the legislative history and circumstances surrounding
its enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and common law principles governing the same general
subject matter . . . . We recognize that terms in a stat-
ute are to be assigned their ordinary meaning, unless
context dictates otherwise . . . .’’ (Citation omitted;
internal quotation marks omitted.) Id., 99–100.
We first note that rule 1.0 of the Rules of Professional
Conduct, entitled ‘‘Terminology,’’ does not define
‘‘promptly.’’ Absent this definition, in order to assign
‘‘promptly’’ its ordinary definition, ‘‘[w]e look to the
dictionary definition of the [term] to ascertain [its] com-
monly approved meaning.’’ (Internal quotation marks
omitted.) Rivers v. New Britain, 288 Conn. 1, 17, 950
A.2d 1247 (2008). The eleventh edition of Merriam-Web-
ster’s Collegiate Dictionary defines ‘‘prompt’’ as ‘‘being
ready and quick to act as occasion demands . . . per-
formed readily or immediately . . . .’’ Merriam-Web-
ster’s Collegiate Dictionary (11th Ed. 2003). In addition,
Random House Webster’s Unabridged Dictionary
defines ‘‘prompt’’ as ‘‘done, performed, delivered, etc.,
at once or without delay.’’ Random House Webster’s
Unabridged Dictionary (2d Ed. 2001). Similarly,
although Black’s Law Dictionary does not offer a defini-
tion for the word ‘‘prompt’’ used in the form of an
adjective or adverb, it defines the verb form of ‘‘prompt’’
as ‘‘[t]o incite, esp. to immediate action.’’ (Emphasis
added.) Black’s Law Dictionary (9th Ed. 2009). In turn,
Black’s Law Dictionary defines ‘‘immediate’’ as
‘‘[o]ccurring without delay; instant . . . .’’ Black’s Law
Dictionary, supra.
On the basis of these ‘‘commonly approved’’ defini-
tions, an interpretation of the term ‘‘promptly’’ that
would allow an attorney to delay informing his client
about a plea offer well after counsel had an opportunity
to do so, would be unreasonable. Each of these diction-
ary definitions references either immediacy or a lack
of delay, concepts which the petitioner advanced in
her construction of the term ‘‘promptly.’’ In contrast,
because the respondent argues that ‘‘promptly’’ does
not necessarily mean ‘‘immediately’’ and admits that
defense counsel here acted with delay, that construc-
tion of the term is unpersuasive. Accordingly, we deter-
mine that the term is clear and unambiguous for
purposes of our statutory construction analysis.
In applying the common meaning of ‘‘promptly’’ to
the facts of the present case, it is clear that Reeve did
not act promptly in informing the petitioner of the plea
offer. Once Reeve received the extremely advantageous
ten year offer from Nicholson on the morning of Octo-
ber 9, he decided to wait to tell the petitioner about
the offer until after she had taken the stand in her own
defense and gone through her entire trial testimony,
which ultimately took two and one-half days to com-
plete. Significantly, the respondent does not claim on
appeal that Reeve was prevented by circumstances out-
side of his control from communicating the plea offer
to his client for several days. Because the trial pro-
ceeded on October 9, the very same day Reeve received
the offer from Nicholson, Reeve obviously was inter-
acting with his client throughout each of the following
days and had ample time to communicate the offer
and to discuss the risks and benefits of accepting or
rejecting it. In making the conscious decision to delay
delivering this information to his client, Reeve did not
act immediately or without delay within the definition
of ‘‘promptly.’’11 Nicholson’s agreement to keep the offer
open did not obviate Reeve’s duty to promptly inform
his client of the offer. Therefore, Reeve failed to comply
with our Rules of Professional Conduct and, by exten-
sion, failed to fulfill his duty to timely communicate
offers from the state in derogation of Frye.12
Because defense counsel’s actions prevented the peti-
tioner from properly exercising her constitutional right
to plead guilty and to make a fully informed decision
as to whether to testify on her own behalf, we agree with
the petitioner that Reeve’s decision may not properly be
viewed as trial strategy at all, much less a reasonable
trial strategy. Nevertheless, even if we were to consider
counsel’s decision to delay communicating the plea
offer as falling within the penumbra of trial strategy,
we would find that Reeve’s decision was not reasonable
under the circumstances.
In keeping with the analysis set forth in Strickland,
we afford Reeve the presumption that the challenged
decision might be considered sound trial strategy, and
evaluate the decision from Reeve’s perspective, under
the circumstances as of the time of his conduct. See
Strickland v. Washington, supra, 466 U.S. 689–90. In the
present case, the habeas court found that after Reeve
received the unexpected phone call and ten year plea
offer from Nicholson, his immediate reaction was to
tell Nicholson ‘‘that he had spent the entire weekend
prepping the petitioner for her testimony on Tuesday,’’
and that although ‘‘he believed that ten years was a
very favorable offer, he was concerned about relaying
it to the petitioner immediately prior to her testimony
because she was young and flustered, and he believed
that this unexpected news would negatively impact her
testimony.’’13 Moreover, on the basis of the record
before us, the habeas court reasonably could have
found that Reeve did not delay informing the petitioner
of the offer for any reason grounded in legal strategy,
such as increasing the chances of a more favorable plea
offer from the state or of an acquittal by the jury. When
asked during his habeas trial testimony whether it was
true that he wanted the offer to remain open through
the petitioner’s trial testimony ‘‘for strategic reasons, so
that you can see how . . . how she would do,’’ Reeve
responded, ‘‘I don’t think that really—I don’t really think
that was a factor in my mind, to be honest. I think I
said that earlier. I wasn’t really thinking about that time,
well, what if she falls apart on the stand, or, alterna-
tively, as you’re now positing a question, what if she
does better? I’ve answered both. I would answer the
same way, that really wasn’t in my limited thinking
calculus at that time.’’ Given that, from Reeve’s perspec-
tive, he withheld the exceptionally advantageous ten
year offer from his client in the sole interest of pro-
tecting her fragile emotional state and has not explained
how this would affect his trial strategy, Reeve’s conduct
cannot be considered sound trial strategy.14
Further, Reeve’s decision is unreasonable in the con-
text of the history of Reeve and Nicholson’s plea negoti-
ations in this case. As the habeas court found, the state
made its first offer to the petitioner, a plea to robbery
or conspiracy to commit robbery and incarceration in
the range of fifteen to twenty years, during a supervised
pretrial conference in December, 2006. The judge
approved the sentence, and Reeve said he would dis-
cuss the offer with the petitioner, and the state indicated
it would discuss it with the victim’s family. After Reeve
advised the petitioner about the strengths and weak-
nesses of the state’s case, her defense, and the risks of
trial, the petitioner agreed to accept the offer, and Reeve
wrote to Nicholson on January 10, 2007, to inform him
of the petitioner’s acceptance. Reeve did not receive a
response from Nicholson, and at the next supervised
pretrial conference in mid-January, Nicholson informed
Reeve and the judge that the state was withdrawing the
offer due to the lack of support from the victim’s family.
On August 24, 2007, Reeve filed a motion to compel
specific performance of the original plea offer, which
the court ultimately denied.
On the basis of these events, Reeve knew that Nichol-
son had already rescinded a plea offer that had been
discussed by both parties in a supervised pretrial con-
ference, had been agreed to by the judge, had been
open for several weeks, and already had been accepted
by the petitioner in writing. In fact, Reeve had been
so concerned with the circumstances surrounding the
withdrawal of the earlier plea offer that he had taken
the time to file a motion to compel specific performance
of the offer. That he did not register any similar concern
about the possible withdrawal of a much better offer
that arrived orally, by telephone, in the last moments
before his client was to testify in her own defense, is
unreasonable on his part.
Finally, as additional evidence that establishes that
Reeve’s decision lacked reasonableness, we turn our
attention to the testimony of Sheehan, Reeve’s law part-
ner. Pursuant to the habeas court’s factual findings,
after Reeve received the call from Nicholson and prior
to when he left for court, Reeve stopped by Sheehan’s
office to inform him of the ten year plea offer as well
as his concerns about relaying the offer to the petitioner
before she testified. Significantly, ‘‘Sheehan agreed that
the ten year offer was favorable and advised Attorney
Reeve that he should not wait to communicate the offer
to the petitioner until after she testified.’’ Reeve, how-
ever, decided to follow ‘‘his instincts’’ and wait to tell
the petitioner.
Although Reeve certainly was not bound by Shee-
han’s advice, it makes a difference, for purposes of
analyzing the reasonableness of his decision, that Reeve
was made aware by a fellow attorney, his law partner,
that the decision might not be a reasonable course of
action under the circumstances. That Reeve quickly
dismissed Sheehan’s recommendation reinforces the
conclusion that defense counsel’s mind was closed to
advice and that he acted unreasonably, without mean-
ingfully calculating the risks of his decision beforehand.
In sum, we conclude that even if defense counsel’s
conduct was a matter of trial strategy, the petitioner
has successfully rebutted the presumption, under that
framework, that defense counsel’s conduct was reason-
able. Ultimately, however, we conclude that defense
counsel’s decision to delay communication of the plea
offer to the petitioner cannot be considered an exercise
of trial strategy under the facts of this case; thus, he
performed deficiently. We, therefore, conclude that the
habeas court did not improperly conclude that the peti-
tioner’s trial counsel provided ineffective assistance.
Accordingly, we affirm the judgment of the habeas
court. As the habeas court terminated the appellate stay
and returned the matter to the criminal trial court for
further proceedings, we hereby order the trial court to
fashion, on an expedited basis, an appropriate remedy
pursuant to Ebron v. Commissioner of Correction, 307
Conn. 342, 53 A.2d 983 (2012).
The judgment is affirmed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
1
The habeas court granted the respondent’s petition for certification to
appeal from the judgment.
2
On March 3, 2016, the petitioner filed a motion to expedite this appeal.
The motion requested that it be assigned for oral argument before the end
of the court year on the ground that the likely remedy, should this court
affirm the habeas court’s judgment, would be the imposition of the ten year
sentence offered by the state. As the petitioner had already served more
than ten years of her sentence, this court granted that motion to expedite
on March 4, 2016.
3
In the ruling from the bench on April 18, 2016, we specified that the
decision to affirm the habeas court’s ruling was made by two members of
the three member panel. At that point in the proceedings, the third panel
member, Judge Mihalakos, indicated the desire for additional time to deter-
mine whether to join the other members of the panel in deciding to affirm
the judgment of the habeas court. Subsequently, and consistent with the
corrected memorandum of decision issued by the habeas court, we immedi-
ately ordered the matter returned to the criminal court for further pro-
ceedings.
4
The petitioner also included a second claim that her trial counsel’s
pretrial and trial representation was ineffective because he failed to investi-
gate sufficiently the state’s evidence and failed to have a pretrial assessment
of the petitioner conducted by an expert on battered women’s syndrome.
In its memorandum of decision, the habeas court noted that ‘‘[t]he petitioner
did not provide evidence of this second claim during the trial and did not
include the issue in [her] posttrial briefs’’; it, therefore, ‘‘consider[ed] the
issue abandoned.’’ The petitioner has not challenged the habeas court’s
decision with regard to her second claim as an adverse ruling that should
be considered in the event the respondent is successful in his appeal. See
Practice Book § 63-4 (a) (1) (B). Accordingly, we do not address it further.
5
The habeas court issued its original memorandum of decision on May
15, 2015, and issued a corrected memorandum of decision on August 26,
2015. The sole difference between the two decisions concerns the remedy
ordered by the court.
6
State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S.
994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).
7
By not timely informing the petitioner of the ten year plea offer, defense
counsel not only deprived the petitioner of critical information that might
have resulted in her foregoing the remainder of the trial in favor of pleading
guilty, but, by virtue of the point in the trial during which the plea offer
was made, deprived her of critical information that may well have factored
into how she internally weighed the risks and benefits of testifying in her
own defense. The decision made by the petitioner to testify was thus arguably
based upon an incomplete calculus. Ultimately, the petitioner was entitled
to make both decisions—whether to plead guilty and whether to testify in
her own defense—fully informed of the state’s very favorable plea offer.
8
This argument is dependent entirely on the habeas court’s factual finding
that after Reeve asked Nicholson if he could convey the ten year offer to
the petitioner after she finished testifying, Nicholson replied, ‘‘That’s okay.’’
9
We note that the petitioner never filed an additional motion with the
court asking that the court permit the petitioner to accept the ten year offer
and be sentenced accordingly. The parties have not directed us to any
criminal case, nor have we been able to find any, on the issue of whether
the state can validly withdraw a plea offer after promising to keep it open.
It is clear, however, that the interpretation of plea agreements is governed
by contract law. State v. Rivers, 283 Conn. 713, 724–28, 931 A.2d 185 (2007).
A plea agreement is ‘‘evaluated with reference to the requirements of due
process’’; (internal quotation marks omitted) id., 724; however, ‘‘[a] plea
bargain standing alone is without constitutional significance; in itself it is
a mere executory agreement which, until embodied in the judgment of a
court, does not deprive an accused of liberty or any other constitutionally
protected interest. It is the ensuing guilty plea that implicates the Constitu-
tion.’’ (Footnote omitted.) Mabry v. Johnson, 467 U.S. 504, 507–508, 104 S.
Ct. 2543, 81 L. Ed. 2d 437 (1984). Under Connecticut law, ‘‘[a]n offer may
be withdrawn before acceptance, and a bare offer is ordinarily held to be
withdrawn unless accepted immediately. The offer may be accompanied by
a promise not to withdraw it within a specified time. In that case it may be
accepted within the time specified, before an actual withdrawal. The promise
not to withdraw is without consideration and cannot be enforced.’’ Patterson
v. Farmington Street Railway Co., 76 Conn. 628, 642, 57 A. 853 (1904).
‘‘This court has long held that an offer imposes no obligation upon either
party, until it is accepted by the offeree, according to the terms in which
the offer was made. . . . Our holdings adhere to the basic principle of
contract law that an offeror is the master of his offer, and therefore, is not
obligated to make an offer on any terms except his own. . . . Thus, [a]n
offer can be accepted by the rendering of a performance only if the offer
invites such an acceptance.’’ (Citation omitted; internal quotation marks
omitted.) Auto Glass Express, Inc. v. Hanover Ins. Co., 293 Conn. 218, 227,
975 A.2d 1266 (2009).
10
Similarly, rule 1.3 of the Rules of Professional Conduct sets forth a
general standard for attorneys to act with diligence, providing: ‘‘A lawyer
shall act with reasonable diligence and promptness in representing a client.’’
11
We do not mean to suggest that it is irrelevant to our analysis that
counsel believed that the offer was to remain open for some period of time.
Instead, the fact that an offer remains open is simply one aspect to be
considered by a court in determining whether counsel ‘‘promptly’’ informed
his or her client of the offer. In other words, the length of time that the offer
is to be held open may impact how quickly an attorney must communicate the
offer to his or her client in light of all of the other circumstances presented,
including whether the offer is made at a stage in the trial proceedings during
which other important decisions regarding the defense of the case must be
made, the attorney’s ease of access to the client, and the attorney’s obliga-
tions to other clients.
12
The respondent additionally argues that the habeas court’s reliance on
Sanders v. Commissioner of Correction, supra, 83 Conn. App. 543, was
misplaced. In Sanders, this court upheld the habeas court’s conclusion that
the defendant’s attorney had rendered ineffective assistance of counsel by
failing to explain meaningfully the state’s plea offer. Id., 546, 550–52. In
the present case, we find the habeas court’s reliance on Frye to be dispositive
for the reasons previously discussed and, thus, decline to address the applica-
bility of Sanders.
13
This finding is supported adequately by the record. For example, during
his habeas trial testimony, the following exchange took place between Reeve
and counsel for the respondent:
‘‘Q. If you were going to recommend this ten year offer . . .
‘‘A. Right.
‘‘Q. And thereby have a chance at resolving the case, why would you elect
to go forward and have [the petitioner] testify for days and days? It’s a
tremendous amount of work. It’s a tremendous amount of stress for her. . . .
‘‘A. Well, I think, obviously in hindsight, I made a terrible mistake. . . .
[A]s I indicated earlier, I knew that [the petitioner] had had a series of
emotional difficulties before, there’s a documented history of mental issues
and problems. I knew she was very vulnerable during this trial, very emo-
tional, very raw and very anxious about her testimony, and so that’s why.
‘‘Q. Well, if you knew that she was in such a fragile emotional state,
wouldn’t that be all the more reason to give her the opportunity to avoid
being subjected to cross-examination by telling her about this offer?
‘‘A. I think that’s a rational conclusion. I wish I’d taken that position at
that time. I didn’t do that and I regret it.’’
14
In some respects, this decision bears some resemblance to a doctor
who chooses to withhold critical medical information from a patient whose
health is at risk on the ground that he does not want to upset her. Although
the choice to withhold this information from a patient may be motivated
by a beneficent purpose, it violates a patient’s fundamental autonomy to
make critical decisions about his or her care. See Logan v. Greenwich
Hospital Assn., 191 Conn. 282, 288, 465 A.2d 294 (1983) (‘‘[e]very human
being of adult years and sound mind has a right to determine what shall be
done with his own body’’ [internal quotation marks omitted]). Likewise, it
is not reasonable for counsel to choose to withhold critical information
from a criminal defendant whose constitutional liberties are at stake on the
ground that he does not want to distress her.