Georges v. Comm'r of Corr.

203 Conn.App. 639

249 A.3d 355

Wendy GEORGES

v.COMMISSIONER OF CORRECTION

AC 43145

Appellate Court of Connecticut.

Argued December 7, 2020

Officially released April 6, 2021

Robert L. O'Brien, assigned counsel, with whom, on the brief, was William A. Adsit, assigned counsel, North Haven, for the appellant (petitioner).

Nancy L. Walker, assistant state's attorney, with whom, on the brief, were Michael L. Regan, state's attorney, and Stephen M. Carney, senior assistant state's attorney, for the appellee (respondent).

Elgo, Alexander and DiPentima, Js.

ELGO, J.

The petitioner, Wendy Georges, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. In rejecting his ineffective assistance of counsel claim, the court concluded that the petitioner had not established deficient performance on the part of his trial counsel in advising him of the immigration consequences of his nolo contendere plea to a charge of reckless manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). The petitioner now challenges the propriety of that determination. We affirm the judgment of the habeas court.

The petitioner is a Haitian national who moved to Connecticut in 2008. At all relevant times, the petitioner was a green card¹ holder and, hence, a lawful permanent resident who could be removed from the United States for committing a serious crime. See Barton v. Barr , ––– U.S. ––––, 140 S. Ct. 1442, 1445, 206 L. Ed. 2d 682 (2020). In 2010, the petitioner was involved in a homicide in Norwich.² He thereafter was arrested and charged with reckless manslaughter in the first degree in violation of § 53a-55 (a) (3).³

As the habeas court noted in its memorandum of decision, the petitioner's case "was discussed over the course of numerous [pretrial conferences]. ... The matter was continued several times so that the petitioner could think about the plea offer." The petitioner ultimately entered into a plea agreement with the state, and a hearing was held on February 8, 2012. During the plea canvass conducted by the trial court, the petitioner affirmatively indicated that he had discussed his plea with his trial counsel, Attorney Bruce Sturman; that he was entering the plea voluntarily and of his own volition; and that he understood that, by pleading nolo contendere, he was forfeiting his right to require the state to prove his guilt beyond a reasonable doubt at a trial. The court explained to the petitioner that he faced a maximum sentence of twenty years of incarceration, and the petitioner acknowledged that, in exchange for his plea, a sentence of twelve years and six months of incarceration with seven years of special parole would be imposed.

The court also informed the petitioner that his plea "can have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization" if he was not a citizen of the United States. The petitioner indicated that he understood that admonition and that he had discussed the issue with Sturman.

At that time, Sturman addressed the court and confirmed that he had apprised the petitioner of the possible immigration consequences of his plea. He stated in relevant part: "[W]e have discussed at length the immigration ramifications of this plea. I have been in touch with a ... pro bono group out of Hartford that assists folks who have immigration issues, and I have alerted them to [the petitioner's] plight. I will be giving that information both to my client and to his wife, and I am confident that when he gets close to the end of his sentence ... they will get involved and represent him with regard to future immigration proceedings." The following colloquy between the court and Sturman then ensued:

"The Court: ... I am far from an expert on immigration ... but I would imagine that, with a conviction of manslaughter in the first degree, [the petitioner] runs a very serious risk ... of being deported.

"[Sturman]: That's my concern. [The petitioner and I have] discussed that. I mean, immigration is deporting folks with [driving under the influence] convictions.

"The Court: I know. ... I'm not allowed to ask him whether he has [citizenship] issues, but obviously ... I would assume that if somebody has citizenship issues ... this would be the type of conviction that you'd be deported on.

"[Sturman]: That's our concern."

The court then accepted the petitioner's plea of nolo contendere to one count of reckless manslaughter in the first degree, finding that it was predicated on an adequate factual basis and that it was "voluntarily and understandably made with the assistance of competent counsel."

The petitioner's sentencing hearing was held on April 12, 2012. After reciting the factual basis for the plea and the terms of the sentence, the prosecutor stated: "[M]y best understanding is that, at the end of this total sentence, [the petitioner] would be deported." In its remarks, the court likewise noted that the petitioner "is going to be going to prison for years and, most likely, with immigration issues, will then be deported ...." The court then sentenced the petitioner in accordance with the terms of his plea.

On August 15, 2013, the petitioner filed a pro se petition for a writ of habeas corpus; an amended petition was filed by the petitioner's habeas counsel, James E. Mortimer, on November 7, 2018. The amended petition alleged that Sturman's representation was ineffective in that, inter alia, he "failed to advise the petitioner of the likelihood of deportation following a plea of guilty ...."⁴ Following a trial, the habeas court concluded that the petitioner had failed to demonstrate that Sturman rendered deficient performance in that regard. Accordingly, the court denied the petition for a writ of habeas corpus. The court thereafter granted certification to appeal from the judgment denying the habeas corpus petition, and this appeal followed.

On appeal, the petitioner claims that the court improperly concluded that he had not established ineffective assistance on the part of Sturman in advising him of the immigration consequences of his nolo contendere plea. We do not agree.

At the outset, we note that the "standard of review in a habeas corpus proceeding challenging the effective assistance of trial counsel is well settled. Although a habeas court's findings of fact are reviewed under the clearly erroneous standard of review ... [w]hether the representation a [petitioner] received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard. ... In order to prevail on an ineffective assistance of counsel claim, the [petitioner] must show: (1) that counsel's representation fell below an objective standard of reasonableness ... and (2) that defense counsel's deficient performance prejudiced the [petitioner]." (Citation omitted; internal quotation marks omitted.)

Gray v. Commissioner of Correction , 99 Conn. App. 444, 447–48, 914 A.2d 1046, cert. denied, 282 Conn. 925, 926 A.2d 666 (2007). As our Supreme Court has observed, "[a] reviewing court can find against a petitioner on either [prong], whichever is easier." (Emphasis omitted; internal quotation marks omitted.) Sanchez v. Commissioner of Correction , 314 Conn. 585, 606, 103 A.3d 954 (2014).

In the present case, the court's decision was predicated on the deficient performance prong. "In order for a petitioner to prevail on a claim of ineffective assistance on the basis of deficient attorney performance, a defendant must show that, considering all of the circumstances, counsel's representation fell below an objective standard of reasonableness as measured by prevailing professional norms. ...

"Furthermore, our review of counsel's performance is highly deferential. ... [A] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance ...." (Citations omitted; internal quotation marks omitted.) Meletrich v. Commissioner of Correction , 332 Conn. 615, 627, 212 A.3d 678 (2019) ; see also Budziszewski v. Commissioner of Correction , 322 Conn. 504, 517 n.2, 142 A.3d 243 (2016) (burden is on petitioner to prove that counsel failed to properly advise on immigration consequences of plea).

At the habeas trial, Sturman testified that, as a public defender, he received training on the collateral consequences of criminal convictions and routinely advised clients "about the deportation ramifications ...." Because the petitioner "was not an American citizen," Sturman testified, he had advised the petitioner that "a guilty plea could very well likely result in his deportation ...." Sturman also testified that, prior to the plea hearing, he consulted with a pro bono organization with immigration expertise regarding the petitioner's case, which cautioned Sturman that the petitioner should "expect the worst." As a result, Sturman testified, he informed the petitioner that "he would probably get deported; that he should, you know, hope for the best but expect the worst" and that "the chances were very good that [he would be] deported ...."

The petitioner, by contrast, testified at the habeas trial that Sturman had not advised him of the immigration consequences of his plea. As a result, the petitioner testified that he did not understand what effect his plea would have on his immigration status. The petitioner claimed that, had he known that there was a "very real risk of deportation," he would not have accepted the nolo contendere plea.

It is well established that an...