Flomo v. Commissioner of Correction

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HENRY FLOMO v. COMMISSIONER OF CORRECTION

(AC 38010)

Alvord, Prescott and Harper, Js.

Argued September 13—officially released November 8, 2016

(Appeal from Superior Court, judicial district of

Tolland, Cobb, J.)

Erica A. Barber, assigned counsel, for the appel-

lant (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 assis-

tance 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 conse-

quences 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 demon-

strate 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 consti-

tutional 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). Accord-

ingly, 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 perma-

nent 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 General Statutes § 53a-70 (a) (1), sexual

assault in the third degree in violation of General Stat-

utes § 53a-72a (a) (1), and risk of injury to a child in

violation of General Statutes § 53-21 (a) (2). If convicted

on all three charges, the petitioner faced a possible

maximum sentence of forty-five years of incarceration.

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 peti-

tioner 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 consis-

tent’’ 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 peti-

tioner only with risk of injury to a child in violation of

§ 53-21 (a) (1),3 and to recommend a sentence of five

years of incarceration, suspended after one year, fol-

lowed by three years of probation with special condi-

tions. Following a plea canvass, the court accepted the

petitioner’s guilty plea under the Alford doctrine4 to the

risk of injury charge and sentenced him in accordance

with the terms of the plea agreement.

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 con-

sequence 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 Secu-

rity initiated removal proceedings against the peti-

tioner. 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 Des-

camps v. United States, U.S. , 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 remov-

able offense and that he was ineligible for relief from

removal. According to the Immigration Court, any viola-

tion of § 53-21 qualifies as a crime of child abuse, child

neglect, or child abandonment for immigration pur-

poses and, as such, constitutes a removable offense. It

ordered that the petitioner be removed to Liberia.5

On August 1, 2014, the petitioner filed the underlying

petition for a writ of habeas corpus. An amended peti-

tion 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 con-

ducted by the court on November 18, 2014. The peti-

tioner 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 immi-

gration law; Carlene Davis, a counselor supervisor at

Robinson Correctional Institution; and Charlotte

Neizer, the petitioner’s fiance´e. 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 informed him about the likelihood of

deportation. He claimed that he did not believe there

was any significant chance of deportation at the time

he entered his Alford plea. The petitioner initially testi-

fied that he first learned he might have immigration

consequences when he applied for and was denied tran-

sitional supervision. His habeas counsel then asked him

if he remembered the court telling him during the plea

canvass that there may be immigration consequences

to his plea and whether that may have been when he

first learned of such consequences. The petitioner

responded yes, but suggested that he had no idea what

the judge meant. Counsel asked the petitioner if he

remembered Cohen saying during the plea canvass that

he had had several discussions with the petitioner about

immigration consequences. The petitioner said he

remembered that, but stated that when he tried to raise

his hand to address the court on the topic, Cohen had

stopped him. The petitioner was asked: ‘‘If you had

been told by [Cohen] that pleading guilty to risk of

injury to a child under the terms of the offer that was

being presented to you would’ve meant you pled guilty

to a crime of child abuse with a near certain chance of

deportation, would you have accepted the plea offer?’’

The petitioner responded: ‘‘No, sir.’’

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 con-

cerned 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 testi-

mony 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 peti-

tioner 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 accom-

plished both goals by entering a plea to risk of injury

under § 53-21 (a) (1). The court expressly rejected the

petitioner’s testimony that his counsel had failed to

discuss the immigration consequences of his plea with

him and that he had no idea he might be deported as

a result.

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 estab-

lished that he was prejudiced by his counsel’s alleged

deficient performance. The court concluded that he had

not met that burden, stating in relevant part: ‘‘Here, the

court finds 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. The plea

agreement that the petitioner accepted took into

account those concerns. Additionally, the petitioner has

family in Liberia, including his son, mother and siblings.

He presented no credible evidence to prove that it

would have been a rational decision for him to reject

a very favorable plea deal in favor of going to trial

and facing decades in prison after which the petitioner

would still likely be deported.’’

The court also rejected, albeit in summary fashion,

the petitioner’s claim that his plea had not been know-

ingly or intelligently made. It appears that the court

based its decision primarily on the fact that the petition-

er’s claim was grounded upon the same evidence as

the ineffective assistance claim, in particular the peti-

tioner’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. Ken-

tucky, supra, 559 U.S. 356.7 Because we conclude that

the habeas court properly determined that the peti-

tioner 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 fourteenth amendments to the United States

constitution and article first, § 8, of the Connecticut

constitution. . . . It is axiomatic that the right to coun-

sel is the right to the effective assistance of counsel.

. . .

‘‘A claim of ineffective assistance of counsel is gov-

erned 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 stan-

dard of reasonableness, and (2) counsel’s deficient per-

formance prejudiced the defense because there was a

reasonable probability that the outcome of the proceed-

ings 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 preju-

dice 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 convic-

tion that a mistake has been committed.’’ (Internal quo-

tation 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 credibil-

ity determinations made by the habeas court ‘‘on the

basis of [the] firsthand observation of [a witness’] con-

duct, 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 defi-

cient in the present case. Rather, it denied the habeas

petition on the basis of its determination that the peti-

tioner’s ineffective assistance claim failed on the preju-

dice prong of the Strickland-Hill test. 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 the immigration consequences of his plea, including

the likelihood of deportation, he nonetheless failed to

show that, but for Cohen’s deficient performance, he

reasonably would have elected to reject the plea

agreement offered by the state and would have insisted

on going to trial. We conclude that the habeas court’s

determination is both legally and logically correct and

supported by the record.

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 asser-

tions 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 con-

cern 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 accom-

plished by pleading to the risk of injury charge. The

court similarly was free to reject the petitioner’s testi-

mony 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 possibil-

ity, 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 prop-

erly determined that the petitioner failed to meet his

burden of demonstrating prejudice under Strickland.9

Because the petitioner failed to demonstrate that he

was prejudiced by his counsel’s alleged deficient perfor-

mance, the habeas court correctly denied his petition

for a writ of habeas corpus with respect to his ineffec-

tive assistance of counsel claim.

II

The petitioner also claims that his guilty plea to risk

of injury to a child was not made knowingly, intelli-

gently, and voluntarily because of the trial court’s fail-

ure to ascertain whether the petitioner fully understood

the precise immigration consequences of his plea, spe-

cifically, the near certitude of his deportation to Liberia.

The petitioner suggests that the trial court had an inde-

pendent obligation, distinct from his defense counsel’s

obligation under Padilla, to ensure that the petitioner

was fully aware of all potential immigration conse-

quences 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 argu-

ments unpersuasive and are bound by precedent of our

Supreme Court holding that courts are not constitution-

ally 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 con-

sequences does not render a plea unintelligent or invol-

untary 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 volunta-

rily, 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. . . . These

considerations demand the utmost solicitude of which

courts are capable in canvassing the matter with the

accused to make sure he has a full understanding of

what the plea connotes and its consequences. . . . We

therefore require the record affirmatively to disclose

that the defendant’s choice was made intelligently and

voluntarily.’’ (Citations omitted; internal quotation

marks omitted.) State v. Andrews, 253 Conn. 497, 502–

503, 752 A.2d 49 (2000).

‘‘The Boykin constitutional essentials for the accep-

tance 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 per-

sonally in open court and determining that the defen-

dant 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 collat-

eral in nature and, therefore, cannot implicate the con-

stitutional 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 General Statutes § 54-1j, which imposes a statutory

requirement that trial courts not accept a guilty or nolo

contendere plea without first canvassing the accused to

ensure that he or she fully understands the immigration

consequences of the plea.12 Our Supreme Court con-

cluded that, just as with the canvass requirements set

forth in Practice Book § 39-19 to ensure that a plea is

voluntary, only substantial compliance with § 54-1j, not

a verbatim reading of the statutory language, is required.

State v. Malcolm, supra, 661–63. In reaching that conclu-

sion, the court also noted: ‘‘Although we do not mean

to minimize the potential impact of the immigration

and naturalization consequences of a plea, they are not

of constitutional magnitude: The statutory mandate

[of § 54-1j] . . . cannot transform this collateral conse-

quence into a direct consequence of the plea. It can

only recognize that this collateral consequence is of

such importance that the defendant should be informed

of its possibility.’’ (Emphasis added; internal quotation

marks omitted.) Id., 663 n.12.

In the present case, it is undisputed that the trial court

substantially complied with § 54-1j. The court informed

the petitioner that if he was not a citizen of the United

States, pleading guilty to the risk of injury charge could

result ‘‘in deportation, exclusion from admission, [and]

denial of your naturalization rights pursuant to the laws

of the United States.’’ The court asked the petitioner

whether he had discussed these possible consequences

with his attorney, and the petitioner answered in the

affirmative. Counsel also indicated to the court that he

had discussed the consequences with the petitioner

‘‘several times in great detail . . . .’’ The court asked

the petitioner if he wished to consult further with his

attorney about ‘‘anything more about that issue at all

before I go forward,’’ to which the petitioner responded

that he was ‘‘all set . . . .’’ A court is permitted to rely

upon a defendant’s answer given in response to a plea

canvass. See State v. Johnson, 253 Conn. 1, 40, 751 A.2d

298 (2000), citing Bowers v. Warden, 19 Conn. App. 440,

443, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d

534 (1989).

Although the petitioner urges that the United States

Supreme Court in Padilla rejected as an analytical tool

evaluating whether immigration consequences are

direct versus collateral, it did so only in the context

of an ineffective assistance claim, which implicates a

petitioner’s sixth amendment right to counsel. See Pad-

illa v. Kentucky, supra, 559 U.S. 366. The present claim

involves whether the trial court properly ensured that

the plea was knowing and voluntary and, thus, in confor-

mance with those rights identified in Boykin, which

did not include protection of the petitioner’s right to

counsel.13 Padilla, therefore, is not directly applicable.

Accordingly, we are bound by the Supreme Court’s prior

rulings, unless reversed or modified, that immigration

consequences are collateral to a guilty plea and, thus,

a court is not constitutionally required to canvass a

defendant regarding immigration consequences in

order to ensure that a plea is knowingly and voluntarily

made. See Anderson v. Commissioner of Correction,

148 Conn. App. 641, 645, 85 A.3d 1240, cert. denied, 311

Conn. 945, 90 A.3d 976, cert. denied sub nom. Anderson

v. Dzurenda, U.S. , 135 S. Ct. 201, 190 L. Ed.

2d 155 (2014) (‘‘[i]t is axiomatic that this court, as an

intermediate body, is bound by Supreme Court prece-

dent and [is] unable to modify it’’ [internal quotation

marks omitted]). We conclude that the habeas court

properly denied the petitioner’s due process claim that

his plea was not knowingly and voluntarily made.

The judgment is affirmed.

In this opinion the other judges concurred.

1

The habeas court granted certification to appeal from the judgment.

2

At the time of the habeas trial, the petitioner’s mother, his three siblings,

and his then ten year old son continued to reside in Liberia.

3

The original information had charged the petitioner with risk of injury to

a child under subdivision (2) of subsection (a) of § 53-21, which criminalizes

contact with the intimate parts of a child in a sexual or indecent manner

and is a class B felony. By contrast, subdivision (1) of subsection (a) of

§ 53-21 does not require proof of misconduct of a sexual nature and is a

class C felony. Furthermore, by pleading to risk of injury under § 53-21

(a) (1) rather than § 53-21 (a) (2), the petitioner would avoid mandatory

registration as a sex offender in accordance with General Statutes § 54-251

(a). See State v. Davenport, 127 Conn. App. 760, 766, 15 A.3d 1154 (2011);

see also General Statutes § 54-250 (2) (providing that ‘‘[c]riminal offense

against a victim who is a minor,’’ as term is used in sex offender registry

statute § 54-251 [a], includes a violation of ‘‘subdivision [2] of subsection

[a] of section 53-21’’).

4

See North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 27 L. Ed. 2d

162 (1970).

5

The petitioner’s counsel indicated in her brief to this court that the

petitioner has since been deported to Liberia. As a result of that representa-

tion, we asked the parties to be prepared to address at oral argument

before this court, inter alia, whether the petitioner’s deportation rendered

the present appeal moot pursuant to our Supreme Court’s holding in State

v. Aquino, 279 Conn. 293, 901 A.2d 1194 (2006). In Aquino, the defendant,

who had been residing illegally in the United States, appealed from the trial

court’s denial of his motion to withdraw a guilty plea. Id., 294. In his motion,

he had claimed that his plea was not knowingly and voluntarily made because

counsel never advised him that he faced almost certain deportation as a

result of the plea. Id., 297. Our Supreme Court determined that the appeal

was moot because the defendant was deported during the pendency of the

appeal, and there was an ‘‘absence of any evidence that the defendant’s

guilty plea was the sole reason for his deportation . . . .’’ Id., 298.

Here, both parties argued that the present appeal is not moot because

the record clearly reflects that the petitioner’s guilty plea was the sole basis

for his removal and, therefore, there was practical relief that could be

afforded if this court were to vacate his plea. The parties’ assertions are

supported by the record. Our review of the record further shows that the

petitioner apparently had no other criminal record that would bar his reenter-

ing this country legally. See Quiroga v. Commissioner of Correction, 149

Conn. App. 168, 174–75, 87 A.3d 1171 (finding appeal moot because even

if immigration court predicated deportation order exclusively on larceny

conviction challenged by petitioner, he still could not obtain any practical

relief because, as he acknowledged before habeas court, he would be perma-

nently barred from reentering the country legally because of prior narcotics

convictions), cert. denied, 311 Conn. 950, 91 A.3d 462 (2014). Accordingly,

on the basis of the record before us, we conclude that the present appeal

is not moot, despite the petitioner’s deportation.

6

The petitioner also alleged that counsel was ineffective because he failed

to adequately advise the petitioner about the length of time he actually

would have to serve under the terms of the plea agreement. He later withdrew

that aspect of his ineffective assistance claim, however, in his posttrial brief.

7

‘‘In Padilla, the United States Supreme Court considered whether advis-

ing a noncitizen criminal defendant of the possible deportation consequences

of a guilty plea falls within the scope of representation required of criminal

defense attorneys by the sixth amendment to the federal constitution and

concluded that it did. . . . The court reasoned that changes to our immigra-

tion law have dramatically raised the stakes of a noncitizen’s criminal convic-

tion. The importance of accurate legal advice for noncitizens accused of

crimes has never been more important. These changes confirm our view

that, as a matter of federal law, deportation is an integral part—indeed,

sometimes the most important part—of the penalty that may be imposed

on noncitizen defendants who plead guilty to specified crimes. . . . The

court continued: We have long recognized that deportation is a particularly

severe penalty . . . but it is not, in a strict sense, a criminal sanction.

Although removal proceedings are civil in nature . . . deportation is never-

theless intimately related to the criminal process. Our law has enmeshed

criminal convictions and the penalty of deportation for nearly a century

. . . . And, importantly, recent changes in our immigration law have made

removal nearly an automatic result for a broad class of noncitizen offenders.

Thus, we find it most difficult to divorce the penalty from the conviction

in the deportation context. . . . Moreover, we are quite confident that non-

citizen defendants facing a risk of deportation for a particular offense find

it even more difficult. . . . The court thus concluded that advice regarding

deportation is not categorically removed from the ambit of the [s]ixth

[a]mendment right to counsel.’’ (Citations omitted; internal quotation marks

omitted.) Thiersaint v. Commissioner of Correction, 316 Conn. 89, 101–102,

111 A.3d 829 (2015).

8

It is well settled that ‘‘critical stages’’ includes those related to the enter-

ing of a guilty plea. See Missouri v. Frye, U.S. , 132 S. Ct. 1399,

1405, 182 L. Ed. 2d 379 (2012).

9

At oral argument before this court, the petitioner seemed to suggest that

we should view counsel’s purported failure to properly advise the petitioner

regarding the near certainty of deportation in the present case as something

akin to a structural error that should have precluded resolution of the

petitioner’s claim solely on the basis of his failure to satisfy Strickland’s

prejudice prong. We are unconvinced.

‘‘A structural error creates a defect in the trial mechanism such that, while

it is virtually impossible to pinpoint the exact harm, it remains abundantly

clear that the trial process was flawed significantly. For this reason, [e]rrors

of this magnitude are per se prejudicial and require that the underlying

conviction be vacated.’’ (Emphasis omitted; internal quotation marks omit-

ted.) State v. Lopez, 271 Conn. 724, 739, 859 A.2d 898 (2004). ‘‘Structural

[error] cases defy analysis by harmless error standards because the entire

conduct of the trial, from beginning to end, is obviously affected . . . .

This court has found error to be structural only when the error renders a

trial fundamentally unfair and is not susceptible to a harmless error analysis

. . . .’’ (Citations omitted; emphasis added; internal quotation marks omit-

ted.) State v. Brown, 279 Conn. 493, 504–505, 903 A.2d 169 (2006).

Claims regarding a violation of the standards set forth in Padilla simply

do not rise to the level of structural error. There may be instances, as in

the present case, in which an alien criminal defendant is not particularly

concerned with deportation or, in fact, may even wish to return to his

native country. In such cases, a defense counsel’s failure to properly convey

immigration consequences will not play a significant role in the defendant’s

decision to accept a plea, and, thus, any error would be harmless. We cannot

conclude that Padilla claims generally will be unsusceptible to harmless

error analysis, a standard that generally is applied whenever assessing claims

of constitutional violations. Id., 505.

10

We note that the respondent argued in his summation before the habeas

court that the petitioner’s claim was procedurally defaulted and, thus, should

not properly be considered by the court. The respondent, however, never

raised procedural default in his response to the habeas petition, the habeas

court made no findings with respect to this argument, and the respondent

has not pursued it on appeal. See Solek v. Commissioner of Correction, 107

Conn. App. 473, 479 n.2, 946 A.2d 239, cert. denied, 289 Conn. 902, 957 A.2d

873 (2008). Accordingly, we do not reach the issue of whether this claim is

one that is subject to the defense of procedural default.

11

The petitioner’s counsel conceded at oral argument before this court

that this is the current state of the law in Connecticut.

12

General Statutes § 54-1j provides: ‘‘(a) The court shall not accept a plea

of guilty or nolo contendere from any defendant in any criminal proceeding

unless the court first addresses the defendant personally and determines

that the defendant fully understands that if the defendant is not a citizen

of the United States, conviction of the offense for which the defendant has

been charged may have the consequences of deportation or removal from

the United States, exclusion from readmission to the United States or denial

of naturalization, pursuant to the laws of the United States. If the defendant

has not discussed these possible consequences with the defendant’s attor-

ney, the court shall permit the defendant to do so prior to accepting the

defendant’s plea.

‘‘(b) The defendant shall not be required at the time of the plea to disclose

the defendant’s legal status in the United States to the court.

‘‘(c) If the court fails to address the defendant personally and determine

that the defendant fully understands the possible consequences of the defen-

dant’s plea, as required in subsection (a) of this section, and the defendant

not later than three years after the acceptance of the plea shows that the

defendant’s plea and conviction may have one of the enumerated conse-

quences, the court, on the defendant’s motion, shall vacate the judgment,

and permit the defendant to withdraw the plea of guilty or nolo contendere,

and enter a plea of not guilty.’’

13

The fundamental rights discussed in Boykin v. Alabama, supra, 395 U.S.

243, were the fifth amendment privilege against self-incrimination, and the

sixth amendment rights to a jury trial and to confront one’s accusers. See

State v. Fagan, 280 Conn. 69, 123–24, 905 A.2d 1101 (2006) (Vertefeuille, J.,

dissenting), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236

(2007). Those rights are applicable to state criminal proceedings pursuant

to the due process clause of the fourteenth amendment. See State v. West,

274 Conn. 605, 622 n.26, 877 A.2d 787, cert. denied, 546 U.S. 1049, 126 S.

Ct. 775, 163 L. Ed. 2d 601 (2005); State v. Moore, 293 Conn. 781, 784 n.2,

981 A.2d 1030 (2009), cert. denied, 560 U.S. 954, 130 S. Ct. 3386, 177 L. Ed.

2d 306 (2010).