Heywood v. Comm'r of Corr.

211 Conn.App. 102

271 A.3d 1086

Tajay HEYWOOD

v.COMMISSIONER OF CORRECTION

AC 44198

Appellate Court of Connecticut.

Argued December 1, 2021

Officially released March 8, 2022

Mary Boehlert, assigned counsel, for the appellant (petitioner).

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Joseph T. Corradino, state's attorney, and Susan M. Campbell, assistant state's attorney, for the appellee (respondent).

Cradle, Clark and Norcott, Js.

NORCOTT, J.

The petitioner, Tajay Heywood, appeals, following the granting 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 improperly concluded that he failed to establish that he was prejudiced as a result of his trial counsel's deficient performance. We disagree and, accordingly, affirm the judgment of the court.

The following facts and procedural history are relevant to this appeal. The petitioner was born in Jamaica and moved to the United States with his family when he was eight years old. The petitioner was a lawful permanent resident of the United States and remained a citizen of Jamaica. On October 6, 2015, the petitioner was arrested as a result of allegations by a thirteen year old girl that he had sexually assaulted her on four occasions.¹ The petitioner was charged with four counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), and four counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2).

Those charges carried with them a potential maximum term of 160 years of incarceration, including a potential three year mandatory minimum period of incarceration.²

The state offered the petitioner a plea agreement pursuant to which the petitioner would plead guilty to one count of sexual assault in the second degree in exchange for a sentence of ten years of incarceration, suspended after four years to serve, with a right to argue down to the nine month mandatory minimum period of incarceration, followed by ten years of probation. The petitioner rejected that offer and intended to proceed to trial. On the day that evidence was set to begin, and after jury selection was completed, the state offered the petitioner a plea agreement with more favorable terms. Specifically, the petitioner would plead guilty to one count of risk of injury to a child in exchange for a sentence of ten years of incarceration, execution suspended after four years, with a right to argue for less, followed by ten years of probation. Because the petitioner had the right to argue for a lesser period of incarceration, he potentially could have received no jail time. The petitioner accepted that offer.

On May 31, 2017, the petitioner pleaded guilty to risk of injury to a child in violation of § 53-21 (a) (2). On August 11, 2017, the court, Devlin, J. , sentenced the petitioner to a total effective term of ten years of incarceration, execution suspended after nine months to serve, followed by ten years of probation. Pursuant to 8 U.S.C. §§ 1101 (a) (43) (A) and 1227 (a) (2) (A) (iii), a conviction under § 53-21 (a) (2) constitutes an aggravated felony for immigration purposes. On completion of his jail term, but while in the custody of the Department of Correction, the petitioner was apprehended by federal immigration officials and subjected to deportation proceedings.

On May 23, 2018, the petitioner, as a self-represented litigant and while in federal immigration detention, filed the present habeas action. On May 25, 2018, the court granted the petitioner's request for the appointment of counsel. On July 5, 2018, the petitioner, through counsel, filed an amended petition for a writ of habeas corpus. The petitioner alleged that Attorney Frank Riccio II, who represented him in the criminal proceedings, provided him with ineffective assistance of counsel. The petitioner claimed in relevant part that Riccio "failed to unequivocally advise [him] ... that entering a guilty plea under the terms of the plea agreement would make [him] subject to mandatory deportation ...."³

The petitioner further alleged that "[t]here is a reasonable probability that—but for the petitioner's counsel's deficient performance—the petitioner would not have entered a guilty plea." At some point after filing his initial petition, the petitioner was deported to Jamaica on the ground that he had committed an aggravated felony related to the sexual abuse of a minor.

On September 30 and October 10, 2019, a trial was held before the habeas court, Chaplin, J. The petitioner presented his testimony⁴ and the testimony of (1) Attorney Justin Conlon, an immigration attorney who served as an expert for the petitioner,⁵ (2) Riccio, and (3) Attorney Tamara Relis, an immigration attorney who represented the petitioner during his removal proceedings.⁶ Riccio testified that, based on the evidence to which he had access prior to jury selection, he believed the case to be "sort of a he said, she said to a degree." Riccio testified that the petitioner wanted to go to trial and challenge the victim's credibility, rather than plead guilty, and that the petitioner did not believe the victim would come to court to testify against him. He testified that, on the day that evidence was set to begin, however, the victim and her mother were present at the courthouse. He testified that, on that same day, he was presented for the first time with a report prepared by the Department of Children and Families (department), which contained the petitioner's admission to a department worker that he had sexually assaulted the victim. Riccio further testified that, prior to obtaining the report, he did not know that it existed and that the petitioner had not told him about it. He testified that the department's report was "pretty thorough" and that the petitioner provided the department worker with details that corroborated the victim's account of the assaults. Riccio characterized this report as "the most damaging evidence" against the petitioner and testified that "[there was] no exception to keep [the petitioner's admissions in the report] out" at trial.

Riccio then testified about the plea offer that the petitioner ultimately accepted. He testified that, in his experience representing criminal defendants, once a case goes on the trial list, the plea agreement offered by the state "virtually never gets better, especially if the evidence in the case improves for the state. Then the offer that was rejected is never reoffered and largely ... never improves when jury selection is about to begin." Riccio also testified that, in his experience representing clients in sexual assault cases, the state had never offered one of his clients a plea agreement in which his client would plead guilty to a crime that would not be considered an aggravated felony. He testified: "[I]n fact, I don't think I've ever ... been offered a nonjail disposition on a case like that. [The petitioner's case] was probably the first and only one [in which there was a] chance of a no jail disposition."

Riccio also testified about his communications with the petitioner regarding the immigration consequences of being found guilty. Several communications from Riccio to the petitioner were entered into evidence as full exhibits at the habeas trial. In a letter dated March 13, 2017, Riccio listed the charges against the petitioner and the maximum possible penalty, and stated that "conviction of any of these offenses will likely result in your deportation." The next day, Riccio sent an e-mail update with the same language. On May 18, 2017, Riccio sent another update, which stated: "The immigration [consequence] of being convicted of a felony is likely deportation." On May 24, 2017, Riccio sent an e-mail with the same language and added: "The only way to truly avoid immigration consequences is to win the trial with eight [not guilty] verdicts." On May 30, 2017, Riccio sent an e-mail to the petitioner noting that he had spoken to the prosecutor about a potential plea agreement that would allow the petitioner to plead guilty to risk of injury to a child and argue for no jail time. Riccio stated: "While it is still a felony, there is a good chance of no jail. I understand that this still creates adverse immigration consequences, however there is a slightly lesser risk of deportation since you will not be incarcerated, thereby making it more difficult for [Immigration and Customs Enforcement (ICE)] to bother you." On May 31, 2017, after the petitioner accepted the state's plea agreement and entered a guilty plea, Riccio sent an e-mail to the petitioner in which he stated: "There will ... likely [be] immigration consequences due to the felony charge."

Riccio testified that, if the petitioner received a sentence that did not include a period of incarceration, it would not be as easy for ICE to get custody of the petitioner to deport him. Riccio stated that he had "said to [the petitioner] on a couple of occasions that it's easier for immigration to, essentially, take custody of you and deport you if you're in custody because they simply have to put on a hold versus someone who's not in custody, immigration can't put an automatic hold on a person." Riccio further testified that the petitioner was "concerned and worried" about both jail and deportation and that he "[could not] say that one was more concerning for him than the other." Riccio stated that, after the petitioner entered his guilty plea, but before he was sentenced, he did not bring up the idea of deportation because "[it] was completely understood by him. That's why we didn't talk about it as much as the jail aspect, because it was not a variable, [it] really wasn't ... anything that could be controlled with an aggravated felony conviction."

The petitioner testified that, since he had moved to the United States in 2006, he had not...