Moore v. Commissioner of Correction

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JOSEPH MOORE v. COMMISSIONER OF
CORRECTION
(AC 40112)
Lavine, Keller and Elgo, Js.
Syllabus
The petitioner, who previously had been convicted of robbery in the first
degree and commission of a class B felony with a firearm, sought a writ
of habeas corpus, claiming, inter alia, ineffective assistance of trial
counsel. Specifically, the petitioner claimed, inter alia, that his trial
counsel rendered ineffective assistance by failing to advise him of the
maximum sentence he faced if he was successful in proving a theory
of defense at trial that amounted to conceding that he was guilty only of
the lesser included offense of robbery in the third degree. The petitioner
claimed that trial counsel had a duty to encourage him to accept the
state’s plea offers by advising him that the maximum sentence at trial
were he convicted only of robbery in the third degree would be at least
as severe or exceed the sentences of the plea offers initially made to
him. The habeas court rendered judgment denying the amended habeas
petition and, thereafter, denied the petition for certification to appeal,
and the petitioner appealed to this court. Held that the habeas court
did not abuse its discretion in denying the petition for certification to
appeal, the petitioner having failed to demonstrate that his trial counsel
provided ineffective assistance: trial counsel adequately advised the
petitioner on the best course of action given the facts of the underlying
case and informed him of the potential total sentence to which he
was exposed, as trial counsel had many discussions with the petitioner
throughout the course of his representation, advised the petitioner to
accept each of the plea deals offered to him, and properly explained
the state’s evidence and provided adequate information for the petitioner
to make an informed decision as to whether to accept the state’s plea
offers, and the failure of counsel to inform the petitioner of the potential
total sentence exposure he faced if he succeeded on the unlikely theory
of proving robbery in the third degree and counsel’s decision not to
further persuade the petitioner to accept the plea offers did not consti-
tute deficient performance, the petitioner having cited no relevant case
to support his claim on appeal and having presented no evidence at the
habeas trial to demonstrate that the prevailing professional norms in
Connecticut made it necessary for trial counsel to advise the petitioner
in the manner he claimed was required; accordingly, the petitioner failed
to show that his claim was debatable among jurists of reason, that a
court could have resolved the claim in a different manner, or that the
question was adequate to deserve encouragement to proceed further.
Argued September 14—officially released November 27, 2018
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, Cobb, J.; judgment deny-
ing the petition; thereafter, the court denied the petition
for certification to appeal, and the petitioner appealed
to this court. Appeal dismissed.
Michael W. Brown, for the appellant (petitioner).
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were Matthew C. Gedansky,
state’s attorney, and Angela Macchiarulo, senior assis-
tant state’s attorney, for the appellee (respondent).
Opinion
KELLER, J. The petitioner, Joseph Moore, appeals
following the denial of his petition for certification to
appeal from the judgment of the habeas court denying
his amended petition for a writ of habeas corpus. The
petitioner claims that the habeas court (1) abused its
discretion in denying his petition for certification to
appeal and (2) improperly rejected his claim that his
trial counsel had rendered ineffective assistance. We
conclude that the court did not abuse its discretion in
denying the petition for certification to appeal, and,
accordingly, dismiss the petitioner’s appeal.
The following facts and procedural history are rele-
vant to our resolution of the petitioner’s claims. Follow-
ing a trial, a jury found the petitioner guilty of robbery
in the first degree in violation of General Statutes § 53a-
134 (a) (4) and commission of a class B felony with a
firearm in violation of General Statutes § 53-202k. The
petitioner then pleaded guilty, in response to a part
B information, that the aforementioned offenses were
committed while on release in violation of General Stat-
utes § 53a-40b. The petitioner also pleaded guilty to a
second part B information charging him with being a
persistent felony offender in violation of General Stat-
utes § 53a-40 (f). The trial court sentenced the petitioner
to a total effective term of thirty-four years incar-
ceration.
On direct appeal from the petitioner’s underlying con-
viction, this court set forth the following facts that the
jury reasonably could have found. ‘‘At approximately 1
p.m. on July 13, 2009, the [petitioner] entered the New
Alliance Bank in Columbia wearing a white tank top
and dark sweatpants. Branch manager Penny Ritchie
and tellers Maria DePietro and Michelle LaLiberty, who
were working at the bank that day, observed the [peti-
tioner] approach the check writer station. The [peti-
tioner] then asked another patron, David Woodward,
where the withdrawal slips were located, at which point
the [petitioner] took a slip from the station and began
to write on it. Photographs from the bank’s security
cameras introduced into evidence depict the [peti-
tioner] writing on a piece of paper at the check writer
station and then approaching the teller station with the
piece of paper in his hand.
‘‘The [petitioner] approached Ritchie and handed her
a deposit slip that read, ‘[g]ive cash. I have gun.’ When
Ritchie explained that she was not a teller, the [peti-
tioner] ordered her to ‘[g]ive me the cash. Give it now.’
Ritchie then slid the deposit slip to DePietro, who
unlocked her teller drawer. As she did, the [petitioner]
demanded, ‘[h]urry up, hurry up’ and reached over the
counter. DePietro then handed the [petitioner] $3500
in cash.
‘‘The [petitioner] immediately exited the bank and
Woodward followed. As Ritchie locked the bank’s doors
and DiPietro called 911, LaLiberty closed the bank’s
drive-through window. As she did, she saw the [peti-
tioner] walking at the rear of the bank to a grassy
strip between the drive-through lane and an adjacent
firehouse. LaLiberty wrote down a description of the
[petitioner] at that time. Approximately six hours later,
the Connecticut state police apprehended the [peti-
tioner] in a grassy area near Route 66 in Columbia.
The [petitioner] subsequently reviewed and executed
a waiver of Miranda1 rights form and agreed to speak
with Detective Derek Kasperowski. The [petitioner]
then admitted to robbing the bank and stated that he
remembered ‘smoking crack before going into the bank,
going to the bank teller and telling her to give him
money.’ Although no firearm was found on the [petition-
er’s] person or the surrounding area, the $3500 in cash
was recovered.’’ (Internal quotation marks omitted.)
State v. Moore, 141 Conn. App. 814, 816–17, 64 A.3d
787, cert. denied, 309 Conn. 908, 68 A.3d 663 (2013).
This court affirmed the petitioner’s conviction. Id., 825.
On May 16, 2014, the petitioner, as a self-represented
party, filed an application for a writ of habeas corpus.
After obtaining counsel, he filed an amended petition
on April 28, 2016. He alleged in relevant part that his
constitutional right to effective assistance of counsel
was violated, arguing that his ‘‘trial counsel’s perfor-
mance was deficient because he failed to adequately
counsel the petitioner about the advisability of
accepting the plea offer’’ and that there was a ‘‘reason-
able probability that—but for trial counsel’s deficient
performance—the petitioner would have accepted the
plea offer and the court would have imposed a more
favorable sentence than the petitioner received.’’
At the habeas trial on September 15, 2016, the habeas
court heard testimony from Matthew Gedansky, the
state’s attorney in the petitioner’s criminal case, Doug-
las Ovian, the petitioner’s trial counsel, and the peti-
tioner. In particular, the petitioner testified that he
admitted from the beginning that he robbed the bank,
but he believed that he was only guilty of robbery in
the third degree because he only had handed the bank
teller a note and never hurt anyone.2 There was testi-
mony that three plea offers were made to the petitioner:
an offer for ten years to serve with five years of special
parole; an offer for ten years to serve with two years
of special parole; and an offer made at a judicial pretrial
conference with Sullivan, J., offering the petitioner
fifteen years to serve if he pleaded guilty to one count
of robbery in the first degree.3 Ovian testified that his
notes indicated that he advised the petitioner to accept
the offers and that he would never have told the peti-
tioner to take this case to trial. In addition, Gedansky
testified that he recalled Ovian telling him that Ovian
had advised the petitioner to take the offer of ten years
to serve with two years special parole. The petitioner
testified that he rejected these offers because he had
faith the state might present him with a more favorable
offer, and that he believed he deserved only five years
of imprisonment. There also was differing testimony
between Ovian and the petitioner with respect to what
Ovian advised as to the potential maximum sentence
the petitioner faced if he was found guilty of all the
charges, and whether he advised the petitioner of the
potential maximum sentence he faced if he prevailed
on a robbery in the third degree theory at trial.4
In a memorandum of decision filed January 10, 2017,
the habeas court denied the amended petition for a writ
of habeas corpus, finding that the petitioner had failed
to prove deficient performance or prejudice. In particu-
lar, the habeas court found that ‘‘Ovian had many dis-
cussions with the petitioner throughout the course of
his representation,’’ and that Ovian ‘‘went over the
state’s evidence with [the petitioner] and he advised
the petitioner to take each of the deals as they were
offered given the circumstances.’’ Additionally, the
habeas court found that Ovian ‘‘informed the petitioner
that he was facing a maximum exposure of forty-eight
and one-half years if convicted of robbery in the first
degree due to the sentence enhancements the petitioner
faced.’’ The habeas court concluded that Ovian relayed
the offers to the petitioner, properly explained the
state’s evidence to him, and adequately warned him of
the exposure he could face should he choose to go to
trial. On January 17, 2017, the petitioner filed a petition
for certification to appeal, which was later denied by
the habeas court. This appeal followed.
We begin by setting forth the applicable standard of
review and procedural hurdles that the petitioner must
overcome in order to obtain appellate review of the
merits of a habeas court’s denial of the habeas petition
following denial of certification to appeal. ‘‘In Simms
v. Warden, 229 Conn. 178, 187, 640 A.2d 601 (1994),
[our Supreme Court] concluded that . . . [General
Statutes] § 52-470 (b) prevents a reviewing court from
hearing the merits of a habeas appeal following the
denial of certification to appeal unless the petitioner
establishes that the denial of certification constituted
an abuse of discretion by the habeas court. In Simms
v. Warden, 230 Conn. 608, 615–16, 646 A.2d 126 (1994),
[the Supreme Court] incorporated the factors adopted
by the United States Supreme Court in Lozada v. Deeds,
498 U.S. 430, 431–32, 111 S. Ct. 860, 112 L. Ed. 2d 956
(1991), as the appropriate standard for determining
whether the habeas court abused its discretion in deny-
ing certification to appeal. This standard requires the
petitioner to demonstrate that the issues are debatable
among jurists of reason; that a court could resolve the
issues [in a different manner]; or that the questions are
adequate to deserve encouragement to proceed further.
. . . A petitioner who establishes an abuse of discretion
through one of the factors listed above must then dem-
onstrate that the judgment of the habeas court should
be reversed on its merits. . . . In determining whether
the habeas court abused its discretion in denying the
petitioner’s request for certification, we necessarily
must consider the merits of the petitioner’s underlying
claims to determine whether the habeas court reason-
ably determined that the petitioner’s appeal was frivo-
lous.’’ (Internal quotation marks omitted.) Hankerson
v. Commissioner of Correction, 150 Conn. App. 362,
366–67, 90 A.3d 368, cert. denied, 314 Conn. 919, 100
A.3d 852 (2014).
On appeal, the petitioner argues that the habeas court
improperly rejected his claim that his trial counsel,
Ovian, had rendered ineffective assistance.5 In his view,
although Ovian advised him of the maximum sentence
that he faced on the charge of robbery in the first degree,
Ovian’s performance was deficient for failing to advise
him of the maximum sentence he faced if he was suc-
cessful in proving at trial that he was guilty only of
committing the lesser included offense of robbery in
the third degree.6 For the reasons set forth in this opin-
ion, we disagree with the petitioner and conclude that
the habeas court did not abuse its discretion in denying
the petition for certification to appeal.
‘‘The sixth amendment to the United States constitu-
tion, made applicable to the states through the due
process clause of the fourteenth amendment, affords
criminal defendants the right to effective assistance
of counsel. Davis v. Commissioner of Correction, 319
Conn. 548, 554, 126 A.3d 538 (2015), cert. denied sub
nom. Semple v. Davis, U.S. , 136 S. Ct. 1676, 194
L. Ed. 2d 801 (2016); see also Thiersaint v. Commis-
sioner of Correction, 316 Conn. 89, 100, 111 A.3d 829
(2015) (criminal defendant constitutionally entitled to
adequate and effective assistance of counsel at all criti-
cal stages of criminal proceedings). Although a chal-
lenge to the facts found by the habeas court is reviewed
under the clearly erroneous standard, whether those
facts constituted a violation of the petitioner’s rights
under the sixth amendment is a mixed determination
of law and fact that requires the application of legal
principles to the historical facts of this case. . . . As
such, that question requires plenary review by this court
unfettered by the clearly erroneous standard.’’ (Internal
quotation marks omitted.) Duncan v. Commissioner
of Correction, 171 Conn. App. 635, 646, 157 A.3d 1169,
cert. denied, 325 Conn 923, 159 A.3d 1172 (2017).
The United States Supreme Court has made clear
that the failure to adequately advise a client throughout
the plea process can form the basis for a sixth amend-
ment claim of ineffective assistance of counsel, and
that such claims should be evaluated under the two-
part standard enunciated in Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). See Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct.
366, 88 L. Ed. 2d 203 (1985). ‘‘[I]t is axiomatic that the
right to counsel is the right to the effective assistance
of counsel. . . . A claim of ineffective assistance of
counsel consists of two components: a performance
prong and a prejudice prong. To satisfy the performance
prong . . . the petitioner must demonstrate that his
attorney’s representation was not reasonably compe-
tent or within the range of competence displayed by
lawyers with ordinary training and skill in the criminal
law.’’ (Internal quotation marks omitted.) Silver v. Com-
missioner of Correction, 180 Conn. App. 592, 597, 184
A.3d 329, cert. denied, 328 Conn. 940, 184 A.3d 759
(2018).
‘‘Prior to trial an accused is entitled to rely upon his
counsel to make an independent examination of the
facts, circumstances, pleadings and laws involved and
then to offer his informed opinion as to what plea should
be entered. Determining whether an accused is guilty
or innocent of the charges in a complex legal indictment
is seldom a simple and easy task for a layman, even
though acutely intelligent.’’ Von Moltke v. Gillies, 332
U.S. 708, 721, 68 S. Ct. 316, 92 L. Ed. 309 (1948). ‘‘A
defense lawyer in a criminal case has the duty to advise
his client fully on whether a particular plea to a charge
appears to be desirable.’’ (Internal quotation marks
omitted.) Vazquez v. Commissioner of Correction, 123
Conn. App. 424, 437 (2010), 1 A.3d 1242, cert. denied,
302 Conn. 901, 23 A.3d 1241 (2011), quoting Boria v.
Keane, 99 F.3d 492, 496 (2d Cir. 1996), cert. denied, 521
U.S. 1118, 117 S. Ct. 2508, 138 L. Ed. 2d 1012 (1997).
‘‘Although the defendant ultimately must decide
whether to accept a plea offer or proceed to trial, this
critical decision, which in many instances will affect a
defendant’s liberty, should be made by a represented
defendant with the adequate professional assistance,
advice, and input of his or her counsel. Counsel should
not make the decision for the defendant or in any way
pressure the defendant to accept or reject the offer,
but counsel should give the defendant his or her profes-
sional advice on the best course of action given the facts
of the particular case and the potential total sentence
exposure.’’ (Emphasis omitted.) Barlow v. Commis-
sioner of Correction, 150 Conn. App. 781, 800, 93 A.3d
165 (2014). ‘‘We are mindful that [c]ounsel’s conclusion
as to how best to advise a client in order to avoid, on
the one hand, failing to give advice and, on the other,
coercing a plea enjoys a wide range of reasonableness.
. . . Accordingly, [t]he need for recommendation
depends on countless factors, such as the defendant’s
chances of prevailing at trial, the likely disparity in
sentencing after a full trial compared to the guilty plea
. . . whether [the] defendant has maintained his inno-
cence, and the defendant’s comprehension of the vari-
ous factors that will inform [his] plea decision.’’
(Citation omitted; internal quotation marks omitted.)
Sanders v. Commissioner of Correction, 169 Conn.
App. 813, 828, 153 A.3d 8 (2016), cert. denied, 325 Conn.
904, 156 A.3d 536 (2017).
The petitioner argues that his trial counsel’s perfor-
mance was deficient for failing to advise him of the
maximum sentence he faced if he was successful in
proving a theory of defense at trial that amounted to
conceding that he was guilty only of the lesser included
offense of robbery in the third degree.7 Specifically, the
petitioner argues that although Ovian advised him of
the maximum exposure he faced if convicted of robbery
in the first degree, Ovian’s performance was deficient
because he had a duty to further encourage the peti-
tioner to accept the plea offers by advising him that
the maximum sentence at trial were he convicted only
of robbery in the third degree would be ‘‘at least as
severe’’ or exceed the sentences of the plea offers ini-
tially made to him. In other words, the petitioner argues
that his trial counsel was deficient because he was
required, but failed, to adequately address the reasons
that the petitioner had for proceeding to trial, rendering
him unable to meaningfully weigh his options. We
disagree.
In the present case, our review of the record demon-
strates that Ovian provided the petitioner with profes-
sional advice on the best course of action given the
facts of the petitioner’s case and also informed him of
the potential total sentence to which he was exposed.
See Barlow v. Commissioner of Correction, supra, 150
Conn. App. 800. While the petitioner may prefer that
we broaden this duty by requiring trial counsel to advise
their clients on the total sentence exposure they face for
each and every possible defense scenario, we decline
to adopt such a rule.
As the petitioner points out, both parties agree that
the evidence against the petitioner was overwhelming
and that it was highly unlikely that the petitioner could
have prevailed with respect to the charge of robbery
in the first degree. To be sure, the evidence at trial
included, inter alia, still photographs from the video
surveillance of the petitioner entering the bank and
writing a note, photographs of him approaching the
teller station with the piece of paper in hand, the slip
containing the petitioner’s written demand for money
and reference to a gun, testimony of the bank teller
explaining that she had written a description of the
petitioner on the back of the slip, and evidence that
the petitioner was apprehended with the proceeds of
the crime on him. In its memorandum of decision, the
habeas court found that Ovian had many discussions
with the petitioner throughout the course of his repre-
sentation and discussed the strengths and weaknesses
of the state’s evidence with him. On the basis of his
assessment of the case, Ovian advised the petitioner to
accept each of the plea deals offered to him, informing
the petitioner that he was facing a maximum sentence
of forty-eight and one-half years if he proceeded to trial.
Although the petitioner was apprised of the evidence
against him and advised to accept each of the plea deals
offered, the record demonstrates that he held strong,
subjective, and unrealistic beliefs about his case. For
example, the habeas court found that the petitioner
believed he should be convicted only of robbery in the
third degree because he merely gave the bank teller a
note and did not hurt anyone; that he believed that five
years was a more reasonable sentence for his offense;
that the petitioner, at a judicial pretrial conference,
stated, ‘‘[s]ir, I apologize, to offend you all but I just
want you to know this is not a [r]obbery [first] and I
will be going to trial to prove it because I am not copping
out to this’’; that he believed that the maximum sentence
he could receive for robbery in the third degree was
five years; and that he rejected plea offers from the
state because he had faith the state might present him
with a more favorable offer.8 Despite counsel’s advice
to the petitioner to accept the plea offers, the petitioner
chose to proceed to trial where he attempted to prove
that his actions constituted only robbery in the third
degree.9
The petitioner acknowledges that he was ‘‘fully
advised’’ about the likelihood of being convicted on the
robbery in the first degree charge and the maximum
potential sentence that he likely faced, but instead,
focuses his argument on trial counsel’s lack of specific
advice on the maximum sentence he could have faced
if he had succeeded on the unlikely strategy of proving
that he only had committed robbery in the third degree.
In doing so, he argues that he was unable to meaning-
fully weigh his options on whether to proceed to trial
without understanding that the maximum sentence at
trial on a theory of robbery in the third degree would
be ‘‘at least as severe’’ or exceed the sentences of the
plea offers initially made to the petitioner. He asserts
that his ‘‘decision to proceed to trial was influenced
highly by trial counsel’s flawed advice’’ to him, charac-
terizing his decision to reject the plea offers and pro-
ceed to trial as ‘‘irrational and suicidal given the
circumstances.’’ The petitioner’s argument, however,
completely ignores the adequate and accurate advice
Ovian did provide him. Ovian’s conversations with the
petitioner fully apprised him of the reality of his case.
Moreover, the court found that Ovian had many discus-
sions with the petitioner throughout the course of his
representation, where Ovian properly explained the
state’s evidence to him, relayed the plea offers to him,
and informed him that he faced up to forty-eight and
a half years incarceration if he proceeded to trial. Given
the circumstances, Ovian advised the petitioner that
the plea offers from the state were desirable and that
he should accept them. See Vazquez v. Commissioner
of Correction, supra, 123 Conn. App. 437.
While the petitioner may now describe his decision
to proceed to trial as ‘‘suicidal,’’ that decision was his
alone to make. See Andrews v. Commissioner of Cor-
rection, 155 Conn. App. 548, 554, 110 A.3d 489 (‘‘[c]oun-
sel should not make the decision for the defendant or
in any way pressure the defendant to accept or reject the
offer’’ [internal quotation marks omitted]), cert. denied,
316 Conn. 911, 112 A.3d 174 (2015). From the beginning,
Ovian’s advice to him was unequivocal; he made clear
that the petitioner should be prepared for a conviction
on the charge of robbery in the first degree should he
choose to proceed to trial. And, as counsel had warned,
the petitioner was in fact convicted of robbery in the
first degree and sentenced to thirty-four years incarcer-
ation following his trial. Our case law requires that the
petitioner be given ‘‘adequate professional assistance,
advice, and input’’ from his counsel and be advised ‘‘on
the best course of action given the facts of [his] case
and the potential total sentence exposure.’’ (Emphasis
omitted.) Barlow v. Commissioner of Correction,
supra, 150 Conn. App. 800. On the basis of our review
of the record, we conclude that he was provided with
just that. We cannot say that Ovian’s failure to inform
the petitioner of the potential total sentence exposure
he faced if he succeeded on the unlikely theory of prov-
ing robbery in the third degree or his decision not to
further persuade the petitioner to accept the plea offers
constituted deficient performance. It also bears noting
that the petitioner has cited no relevant cases to support
his claim on appeal and presented no evidence at the
habeas trial to demonstrate that the prevailing profes-
sional norms in Connecticut made it necessary for
Ovian to advise the petitioner in the manner he argues.
As this court has noted before, trial counsel’s decision
on ‘‘how best to advise a client in order to avoid, on
the one hand, failing to give advice and, on the other,
coercing a plea enjoys a wide range of reasonableness
. . . .’’10 (Internal quotation marks omitted.) Peterson
v. Commissioner of Correction, 142 Conn. App. 267,
274, 67 A.3d 293 (2013).
The information and advice provided to the petitioner
by trial counsel was adequate for him to make an
informed decision as whether to accept the state’s plea
offers. See Melendez v. Commissioner of Correction,
151 Conn. App. 351, 359, 95 A.3d 551, cert. denied, 314
Conn. 914, 100 A.3d 405 (2014). Although the petitioner
claims he was entitled to further explanation about
the consequences of proceeding to trial, he has not
demonstrated, as required under the first prong of
Strickland, that trial counsel’s actual explanation and
advice fell below an objective standard of reasonable-
ness under prevailing professional norms.11 See Strick-
land v. Washington, supra, 466 U.S. 687–88; Heredia
v. Commissioner of Correction, 106 Conn. App. 827,
836–37, 943 A.2d 1130, cert. denied, 287 Conn. 918, 951
A.2d 568 (2008).
We, therefore, conclude, after a thorough review of
the record, that the petitioner failed to establish that
the issue he raised is debatable among jurists of reason,
that a court could resolve it in a different manner, or
that the question he raised is adequate to deserve
encouragement to proceed further. Accordingly, we
conclude that the habeas court did not abuse its discre-
tion in denying the petition for certification to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
2
At the habeas trial, Ovian testified that the petitioner had taken a position
that the note recovered at the bank was not the note he had written and
handed to the teller. Ovian testified that it was the petitioner’s position that
the note he handed to the teller never indicated that he had a gun, and that
the teller had given him back the note prior to his running from the bank
and jumping into a river. Gedansky indicated that the petitioner had a theory
that the police had invented the note on which the state relied; Gedansky
described this as a ‘‘conspiracy theory.’’ Ovian also testified that he recalled
contacting a handwriting expert to see if his evaluation of the note could
give some support to the petitioner’s theory. Ovian testified that after the
handwriting analyst reviewed a copy of the note, the handwriting analyst
indicated to him that he thought it ‘‘would not be a good idea to call him
as a witness.’’
3
Gedansky testified that Ovian was able to persuade him to reduce his
initial offer of ten years to serve with five years special parole to ten years
to serve with two years special parole.
4
At the habeas trial, Ovian testified that he recalled there being a ‘‘specific
discussion of numbers’’ with the petitioner about his exposure if he was
found guilty of robbery in the first degree. He also testified that his notes
contained a chart showing that the total exposure the petitioner faced
was forty-eight and one-half years, which included the enhancements the
petitioner likely faced for committing a crime while he was out on bond
and for being a persistent felony offender. Ovian then testified that he could
not definitively say that he advised the petitioner on the maximum sentence
the petitioner faced if convicted on the lesser included offense of robbery
in third degree, but he indicated that he would not have led the petitioner
to believe that he would have avoided jail time, especially in light of the
conversations they had about the enhancements the petitioner faced.
The petitioner testified that Ovian did not tell him that he may receive a
sentence of thirty-four years. He also said that he did not think that Ovian
had brought to his attention the potential maximum sentence if he was
found guilty on all the charges. The petitioner indicated that had he known
that he was going to receive a thirty-four-year sentence, he would not have
gone to trial. Additionally, the petitioner testified that he was asking at trial
that he be found guilty of robbery in the third degree and felt that the
maximum sentence was five years; he testified that Ovian never told him
the maximum potential sentence for robbery in the third degree was twenty
years. He also testified, though, that he did not recall whether Ovian told
him that a five year sentence was a likely outcome.
5
The petitioner appears to predicate his claim of ineffective assistance
of counsel on both the sixth amendment to the United States constitution
and article first, §§ 8 and 9, of the Connecticut constitution. Because he has
not separately analyzed his state constitutional claim, we address only his
claim under the federal constitution. See e.g., Ham v. Commissioner of
Correction, 301 Conn. 697, 702 n.6, 23 A.3d 682, 686 (2011); State v. Melendez,
291 Conn. 693, 704 n.16, 970 A.2d 64, 72 (2009).
6
After filing this appeal, the petitioner filed a motion for articulation on
April 13, 2017, requesting that the habeas court articulate, inter alia, the
factual and legal bases for ‘‘whether counsel had a duty to advise the peti-
tioner about his potential and realistic exposure after a trial where he
prevailed on his robbery in the third degree theory.’’ The habeas court denied
that motion on May 10, 2017, and pursuant to Practice Book § 66-7, the
petitioner filed a motion for review in this court challenging the habeas
court’s denial of his motion for articulation. On July 12, 2017, this court
granted review, but denied the relief requested.
In the petitioner’s appellate brief, he appears to renew the arguments he
made in his motion for review. He seems to suggest that the record is
inadequate for review because the habeas court did not address whether
trial counsel’s failure to advise the petitioner that ‘‘a conviction for robbery
in the third degree would very likely result in a sentence at least as high
as the offers by the prosecuting authority’’ constituted deficient perfor-
mance. We disagree. It is evident from the habeas court’s well reasoned
decision that it determined that trial counsel’s failure to advise the petitioner
that a conviction of robbery in the third degree would likely result in a
sentence at least as high as the offers by the prosecuting authority did not
constitute deficient performance in light of the adequate advice that he did
provide the petitioner. Accordingly, we conclude that the record is adequate
for our review.
7
As previously noted, the petitioner took the position that the note he
handed to the teller never indicated that he had a gun, and that the teller
had given him back the note prior to his running from the bank. In his view,
the note on which the state relied was not the note he had written. As such,
it was his theory that because he never referenced a gun in the note that
he handed the teller, he could be found guilty only of robbery in the third
degree. Accordingly, after the petitioner declined to follow his counsel’s
advice to take the plea offers, Ovian pursued the petitioner’s preferred
theory at trial that called into question the authenticity of the note, which,
if the jury believed, would constitute only robbery in the third degree.
8
Ovian also testified at the habeas trial that the petitioner believed that
the plea deals offered by the state were too high given his poor health,
especially ‘‘for someone who might not make it.’’ Ovian noted that the
petitioner recently had a heart attack and felt like his ‘‘life was fleeting.’’
9
Ovian testified at the habeas trial that although he disagreed with the
petitioner’s decision to go to trial, he told him he would do his best to
represent him. Accordingly, Ovian decided to pursue a strategy that called
into question the authenticity of the note.
10
In fact, advising the petitioner of the consequence of a robbery in the
third degree conviction might only have encouraged his unfounded belief
that the state only could prove the lesser offense when the evidence of
robbery in the first degree was strong.
11
Because Ovian did not render deficient performance, we need not reach
the prejudice prong of the Strickland test. See Brunetti v. Commissioner
of Correction, 134 Conn. App. 160, 172 n.2, 37 A.3d 811, cert. denied, 305
Conn. 903, 44 A.3d 180 (2012).