Flomo v. Comm'r of Corr.

169 Conn.App. 266

149 A.3d 185

Henry Flomo

v.Commissioner of Correction

AC 38010

Appellate Court of Connecticut.

Argued September 13, 2016

Officially released November 8, 2016

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).

Alvord, Prescott and Harper, Js.

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 Strick land 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 General Statutes § 53a–70(a)(1), sexual assault in the third degree in violation of General Statutes § 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 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 § 53–21(a)(1),³ and to recommend a sentence of five years of incarceration, suspended after one year, followed by three years of probation with special conditions. 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 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 , –––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 removable offense and that he was ineligible for relief from removal. According to the Immigration Court, any violation of § 53–21 qualifies as a crime of child abuse, child neglect, or child abandonment for immigration purposes 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 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 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 testified that he first learned he might have immigration consequences when he applied for and was denied transitional 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...