HENRY FLOMO v. COMMISSIONER OF CORRECTION
(AC 38010)
Appellate Court of Connecticut
Argued September 13—officially released November 8, 2016
Alvord, Prescott and Harper, Js.
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Erica A. Barber, assigned counsel, for the appellant (petitioner).
Sarah Hanna, assistant state‘s attorney, with whom, on the brief, were Gail P. Hardy, state‘s attorney, David M. Carlucci, special deputy assistant state‘s attorney, and Leon F. Dalbec, Jr., former senior assistant state‘s attorney, for the appellee (respondent).
Opinion
PRESCOTT, J. The petitioner, Henry Flomo, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus.1 On appeal, the petitioner claims that the habeas court improperly rejected his claims that (1) he received ineffective assistance of counsel due to his attorney‘s failure to advise him properly of the immigration consequences of his guilty plea in accordance with Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), and (2) his guilty plea was not made knowingly, intelligently, and voluntarily because the trial court failed to ensure that he fully understood the precise immigration consequences of his plea. We conclude that the habeas court properly rejected the petitioner‘s ineffective assistance of counsel claim on the ground that he failed to demonstrate prejudice, as required under the test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Additionally, the petitioner‘s second claim fails as a matter of law because immigration and naturalization consequences of a plea, although often significant, are not of a constitutional magnitude for purposes of evaluating whether a plea is knowing and voluntary. See State v. Malcolm, 257 Conn. 653, 663 n.12, 778 A.2d 134 (2001). Accordingly, we affirm the judgment of the habeas court.
The record reveals the following relevant facts and procedural history. The petitioner is a citizen of Liberia who was admitted to this country in 2010 as a permanent legal resident.2 He was arrested in July, 2013, on charges stemming from an incident that occurred on March 7, 2013. As found by the habeas court, at the time of the incident, “[t]he petitioner was a youth leader at the fifteen year old victim‘s church. The petitioner picked [the victim] up after she had requested a ride and took her to his apartment, where he had some physical contact with her, and asked her for sex, which she refused.” The petitioner initially was charged with attempt to commit sexual assault in the first degree in violation of
At a court appearance on October 15, 2013, the court informed the petitioner that the state had extended a plea offer, his defense counsel, Richard E. Cohen, would explain the offer to him, and he would have until November 12, 2013, to accept or to reject the plea offer. In a letter to the petitioner dated October 29, 2013, Cohen memorialized that he had spoken with the petitioner regarding the pending charges, the maximum penalty that he faced if convicted of those charges, and the state‘s plea offer. According to Cohen‘s letter, if the petitioner agreed to plead guilty to one count of sexual assault in the third degree, the state would recommend a sentence of five years, execution suspended after one year, followed by ten years of probation. Cohen further stated in the letter: “We also discussed immigration consequences. You would most likely be deported after serving your sentence.” He ended the letter as follows: “I am inclined to advise you to accept the offer, although I will try to obtain a better offer.”
Just prior to the petitioner‘s November 12, 2013 report back date, the state changed the terms of the plea offer. Instead of requiring the petitioner to plead guilty to sexual assault in the third degree, the state offered to recommend a plea agreement to the risk of injury count. Counsel met with the petitioner to discuss this new plea offer, but, as reported to the court on the record, the petitioner “remained persistent and consistent” that he did not commit any of the charged offenses. Having rejected the state‘s plea offer at that time, the court placed the matter on the docket for a trial.
Subsequently, on February 6, 2014, the parties appeared before the court, Alexander, J., having reached a plea deal. Pursuant to the new agreement, in exchange for the petitioner‘s guilty plea, the state agreed to file a substitute information charging the petitioner only with risk of injury to a child in violation of
As part of the plea canvass, the court inquired whether the petitioner knew that there were potential immigration consequences of his plea. The following colloquy occurred:
“The Court: If you are not a citizen, a conviction of any crime could result in deportation, exclusion from admission, denial of your naturalization rights pursuant to the laws of the United States. Do you understand that consequence, if it applies to you?
“The Petitioner: Yes, Your Honor.
“The Court: Mr. Cohen, have you discussed that consequence with [the petitioner], if it applies?
“[Defense Counsel]: I did. It does apply, and we‘ve discussed this several times in great detail, so he is aware that there could be some immigration issues here.
“The Court: All right. Do you need to ask your lawyer anything more about that issue at all before I go forward, or are you all set?
“The Petitioner: Yeah.
“The Court: Take a minute. Are you all set?
“The Petitioner: Yeah, I‘m all set, Your Honor.”
On May 23, 2014, the Department of Homeland Security initiated removal proceedings against the petitioner. On July 10, 2014, the United States Immigration Court adjudicated the petitioner to be removable from the United States on the basis of his commission of a removable offense. The petitioner appealed from that decision to the Board of Immigration Appeals (board), which vacated the decision because, in determining whether the petitioner committed a removable offense, the immigration judge had failed to consider a recent United States Supreme Court decision regarding the proper categorization of criminal offenses. See Descamps v. United States, 570 U.S. 254, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013). The board remanded the matter for further proceedings. On December 16, 2015, the Immigration Court rendered a new decision in which it concluded that the petitioner had committed a removable offense and that he was ineligible for relief from removal. According to the Immigration Court, any violation of
On August 1, 2014, the petitioner filed the underlying petition for a writ of habeas corpus. An amended petition was filed on September 23, 2014. The amended petition contained two counts. Count one alleged a due process violation, claiming that the petitioner‘s plea was not made knowingly, intelligently, and voluntarily because he did not fully understand the immigration consequences of his plea, including the likelihood of deportation. Count two alleged that his trial counsel had provided ineffective assistance by, inter alia, failing to adequately research the immigration consequences of the plea or to advise the petitioner about potential consequences, and by not negotiating a plea that would have avoided the possibility of deportation.6
A trial on the petition for habeas corpus was conducted by the court on November 18, 2014. The petitioner submitted a pretrial memorandum of law, and both parties submitted posttrial briefs. In addition to his own testimony, the petitioner presented testimony from Cohen; Attorney Justin Conlon, an expert on immigration law; Carlene Davis, a counselor supervisor at Robinson Correctional Institution; and Charlotte Neizer, the petitioner‘s fiancée. The respondent, the Commissioner of Correction, did not call any witnesses.
At the habeas trial, the petitioner testified that he was unaware of the immigration consequences of his plea at the time he entered it. He stated that he never received any letter from Cohen explaining that he was most likely to be deported if he accepted the terms of the initial plea offer. He also stated that, at the time he spoke with Cohen about accepting the later plea deal, Cohen never discussed the immigration consequences of the plea or
Cohen testified, consistent with what he stated during the plea canvass, that he had discussed the immigration consequences of a guilty plea with the petitioner several times, including the potential for deportation. Cohen admitted that he did not consult with an immigration attorney or retain an immigration attorney with whom the petitioner could consult, but he testified that his understanding was always that there was a distinct possibility that the petitioner could be deported if he pleaded guilty to any of the pending charges, and he communicated that to his client. Cohen also explained during his testimony that the petitioner “was not concerned about going back to Liberia” and was “pretty emphatic” on that point. According to Cohen, “he had no problems with the deportation aspect. He said he didn‘t care.” Cohen testified that the petitioner‘s primary concern was with avoiding a conviction that involved misconduct of a sexual nature because there would be a stigma attached to being a convicted sex offender, both “in his native country and in his culture.” Therefore, Cohen‘s main focus during plea negotiations had been to minimize the petitioner‘s sentence and to enable the petitioner to avoid sex offender registration, which he accomplished.
The habeas court issued a memorandum of decision on May 5, 2015. The court found credible Cohen‘s testimony that he had discussed with the petitioner the immigration consequences of his plea and that he had told him that he would “most likely” be deported. The court also credited Cohen‘s testimony that the petitioner was not concerned with deportation. The court found that the petitioner‘s primary goals in obtaining a plea bargain “were to avoid jail time and to eliminate any charge of a sexual nature,” and that he accomplished both goals by entering a plea to risk of injury under
Rather than analyze whether Cohen‘s performance was deficient under the standard set forth in Padilla v. Kentucky, supra, 559 U.S. 356; the court instead focused its analysis on whether the petitioner had established that he was prejudiced by his counsel‘s alleged deficient performance. The court concluded that he had not met that burden,
The court also rejected, albeit in summary fashion, the petitioner‘s claim that his plea had not been knowingly or intelligently made. It appears that the court based its decision primarily on the fact that the petitioner‘s claim was grounded upon the same evidence as the ineffective assistance claim, in particular the petitioner‘s testimony at the habeas trial that he did not understand the probability of his deportation at the time he entered his plea. This appeal followed.
I
We turn first to the petitioner‘s claim that the habeas court improperly rejected his claim that he received ineffective assistance because his counsel failed to advise him adequately of the immigration consequences of his guilty plea in accordance with Padilla v. Kentucky, supra, 559 U.S. 356.7 Because we conclude that the habeas court properly determined that the petitioner had failed to demonstrate that he was prejudiced by counsel‘s allegedly deficient performance, we reject the petitioner‘s claim.
We begin our analysis with the legal principles that govern our review of the petitioner‘s claim. “A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings.8 . . . This right arises under the sixth and
“A claim of ineffective assistance of counsel is governed by the two-pronged test set forth in Strickland v. Washington, supra, 466 U.S. 687. Under Strickland, the petitioner has the burden of demonstrating that (1) counsel‘s representation fell below an objective standard of reasonableness, and (2) counsel‘s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance. . . . For claims of ineffective assistance of counsel arising out of the plea process, the United States Supreme Court has modified the second prong of the Strickland test to require that the petitioner produce evidence that there is a reasonable probability that, but for counsel‘s errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial. . . . An ineffective assistance of counsel claim will succeed only if both prongs [of Strickland] are satisfied.” (Citations omitted; footnote added; internal quotation marks omitted.) Thiersaint v. Commissioner of Correction, 316 Conn. 89, 100-101, 111 A.3d 829 (2015); see also Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985) (modifying Strickland prejudice analysis in cases in which petitioner entered guilty plea). “It is axiomatic that courts may decide against a petitioner on either prong [of the Strickland test], whichever is easier.” Lewis v. Commissioner of Correction, 165 Conn. App. 441, 451, 139 A.3d 759 (2016), citing Strickland v. Washington, supra, 466 U.S. 697 (“a court need not determine whether counsel‘s performance was deficient before examining the prejudice suffered by the [petitioner]“).
“The [ultimate] conclusions reached by the [habeas] court in its decision [on a] habeas petition are matters of law, subject to plenary review. . . . [When] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record. . . . 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.) Anderson v. Commissioner of Correction, 114 Conn. App. 778, 784, 971 A.2d 766, cert. denied, 293 Conn. 915, 979 A.2d 488 (2009). A reviewing court ordinarily will afford deference to those credibility determinations made by the habeas court “on the basis of [the] firsthand observation of [a witness‘] conduct, demeanor and attitude.” (Internal quotation marks omitted.) Lapointe v. Commissioner of Correction, 316 Conn. 225, 268, 112 A.3d 1 (2015).
Turning to the present case, the habeas court elected not to decide whether Cohen‘s performance was deficient in the present case. Rather, it denied the habeas petition on the basis of its determination that the petitioner‘s ineffective assistance claim failed on the prejudice prong of the Strickland-Hill test.9 According to the habeas court, even if the petitioner could satisfy the performance prong by demonstrating that Cohen had not thoroughly researched or competently advised him of
To satisfy the prejudice prong, the petitioner had the burden to show that, absent counsel‘s alleged failure to advise him in accordance with Padilla, he would have rejected the state‘s plea offer and elected to go to trial. See Hill v. Lockhart, supra, 474 U.S. 59. In evaluating whether the petitioner had met this burden and evaluating the credibility of the petitioner‘s assertions that he would have gone to trial, it was appropriate for the court to consider whether “a decision to reject the plea bargain would have been rational under the circumstances.” Padilla v. Kentucky, supra, 559 U.S. 372. The habeas court made an explicit finding that the petitioner “was not concerned about the immigration consequences of his plea, but rather the stigma attached to a conviction for a sexual assault of a minor, and reducing his jail sentence.” That finding is not clearly erroneous because it is supported by Cohen‘s testimony at the habeas trial that the petitioner had been adamant throughout their many discussions that he did not care about being deported to Liberia and that his real concern was in avoiding the cultural stigma associated with a conviction involving misconduct of a sexual nature. The court was free to credit Cohen‘s testimony that the petitioner was not concerned with the immigration consequences of his plea and that he simply wanted to avoid the potential of a conviction that would require him to register as a sex offender, which he accomplished by pleading to the risk of injury charge. The court similarly was free to reject the petitioner‘s testimony at the habeas trial that he would have rejected the plea and gone to trial had he been advised that he likely would face deportation as a result of his plea. The court could have found that testimony not credible and unreasonable, particularly in light of its rejection of the petitioner‘s assertion that his counsel had never discussed possible immigration consequences with him, and because the petitioner faced the real possibility, if he had chosen to go to trial and lost, of receiving a much longer sentence, being required to register as a sex offender, and deportation. It is simply not the role of this court on appeal to second-guess credibility determinations made by the habeas court. Martin v. Commissioner of Correction, 141 Conn. App. 99, 104, 60 A.3d 997, cert. denied, 308 Conn. 923, 94 A.3d 638 (2013).
In sum, we are convinced that the habeas court properly determined that the petitioner failed to meet his burden of demonstrating prejudice under Strickland. Because the petitioner failed to
II
The petitioner also claims that his guilty plea to risk of injury to a child was not made knowingly, intelligently, and voluntarily because of the trial court‘s failure to ascertain whether the petitioner fully understood the precise immigration consequences of his plea, specifically, the near certitude of his deportation to Liberia. The petitioner suggests that the trial court had an independent obligation, distinct from his defense counsel‘s obligation under Padilla, to ensure that the petitioner was fully aware of all potential immigration consequences of a guilty plea, including the relative likelihood of deportation in his particular case, and that the court failed in this obligation. We find the petitioner‘s arguments unpersuasive and are bound by precedent of our Supreme Court holding that courts are not constitutionally obligated to canvass a defendant regarding the immigration consequences because they are not a direct consequence of a guilty plea. See State v. Malcolm, supra, 257 Conn. 663 n.12. “The failure to inform a defendant as to all possible indirect and collateral consequences does not render a plea unintelligent or involuntary in a constitutional sense.” State v. Gilnite, 202 Conn. 369, 383 n.17, 521 A.2d 547 (1987).10
We begin our analysis by first setting forth the law governing the entry of guilty pleas. As established by the United States Supreme Court in Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), “unless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable. . . . A plea of guilty is, in effect, a conviction, the equivalent of a guilty verdict by a jury. . . . In choosing to plead guilty, the defendant is waiving several constitutional rights, including his privilege against self-incrimination, his right to trial by jury, and his right to confront his accusers. . . .
“The Boykin constitutional essentials for the acceptance of a plea of guilty are included in our rules and are reflected in Practice Book §§ [39-19 and 39-20]. . . . Those rules provide that the trial court must not accept a guilty plea without first addressing the defendant personally in open court and determining that the defendant fully understands the items enumerated in § 39-19, and that the plea is made voluntarily pursuant to § 39-20. There is no requirement, however, that the defendant be advised of every possible consequence of such a plea. . . . Although a defendant must be aware of the direct consequences of a plea, the scope of direct consequences is very narrow.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 504.
Immigration consequences of a plea are among those that our Supreme Court already has indicated are collateral in nature and, therefore, cannot implicate the constitutional concerns of Boykin.11 In State v. Malcolm, supra, 257 Conn. 653, the issue before the court was whether a trial court properly had granted a defendant‘s motion to withdraw his guilty plea on the ground that the court had failed specifically to mention all three immigration and naturalization consequences set forth in