Miller v. Comm'r of Corr.

176 Conn.App. 616

170 A.3d 736

Peter MILLER

v.COMMISSIONER OF CORRECTION

AC 39330.

Appellate Court of Connecticut.

Argued April 18, 2017

Officially released September 26, 2017

Vishal K. Garg, Wethersfield, for the appellant (petitioner).

Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, Angela Macchiarulo, senior assistant state's attorney, and Yamini Menon, assistant state's attorney, for the appellee (respondent).

Alvord, Sheldon and Norcott, Js.

NORCOTT, J.

The petitioner, Peter Miller, a citizen of Jamaica, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court (1) abused its discretion in denying certification to appeal and (2) improperly concluded that trial counsel did not render ineffective assistance when advising him of the immigration consequences of his guilty plea. We agree that the habeas court abused its discretion in denying the petition for certification to appeal and that trial counsel rendered deficient performance when advising the petitioner of the immigration consequences of his guilty plea. We conclude, however, that the record is inadequate to determine whether the petitioner was prejudiced by counsel's deficient performance. Accordingly, we reverse the judgment of the habeas court and remand the matter for further habeas proceedings in accordance with this opinion.

The following facts and procedural history are relevant to our resolution of this appeal. The petitioner was charged under two separate docket numbers with a variety of drug related offenses. On June 7, 2012, the petitioner appeared before the court, Iannotti, J. , and, pursuant to a plea deal, pleaded guilty to possession of a controlled substance with intent to sell in violation of General Statutes § 21a–278 (b). At that time, the prosecutor recited the following facts underlying this plea. On or about October 13, 2011, a United States Postal Service inspector intercepted a package that contained eighteen pounds of marijuana. Thereafter, a controlled delivery was made to 15 Pinetree Lane in Fairfield. The package was accepted by the petitioner's girlfriend, Tracy Dapp, who, upon accepting it, informed the detectives that the parcel was for the petitioner. Subsequently, the petitioner arrived at Dapp's residence, where he was arrested and made incriminating statements to the police. The record indicates that a search of the petitioner's vehicle revealed the eighteen pounds of marijuana, but it is unclear whether Dapp gave the petitioner the marijuana to put in his vehicle before he was apprehended by the police at her residence.

The petitioner was represented before the trial court by Attorney Jared Millbrandt, a public defender. During the plea canvass, the court asked the petitioner whether he had discussed with counsel "the charge he pleaded guilty to, the elements of the offense, maximum penalty twenty years, [and] mandatory minimum five years," and whether the petitioner understood that the court could deviate below the mandatory minimum sentencing guidelines, to which the petitioner answered, "Yes." The court then asked whether the petitioner was pleading guilty "freely and voluntarily." The petitioner replied, "Yes." The court asked, "Are the facts as read by the state essentially correct?" The petitioner answered, "Correct." Finally, the court asked the following: "Do you understand [that] if you are not a citizen this can result in deportation from the United States, exclusion from the admission to the United States, [and] denial of naturalization pursuant to the laws of the United States?" The petitioner replied, "Yes." The court then found that the plea was voluntarily and knowingly made with the assistance of competent counsel. On July 30, 2012, the court sentenced the petitioner to seven years of incarceration, execution suspended after sixteen months, followed by three years of probation.

On July 30, 2013, the United States Immigration Court ordered that the petitioner be removed from the United States to Jamaica because his conviction of possession of a controlled substance with intent to sell constituted an aggravated felony, for which the consequence is mandatory deportation.¹

In May, 2015, the petitioner commenced the present action. On September 8, 2015, the petitioner filed the operative amended petition for a writ of habeas corpus, which in relevant part alleges ineffective assistance of counsel because Millbrandt did not adequately advise him as to the immigration consequences of his guilty plea.²

The court held the habeas trial on February 11, 2016, during which the court heard testimony from, among others: Millbrandt; Justin Conlon, an immigration attorney; Kenneth Simon, a retired public defender with knowledge of the standard of care for criminal defense attorneys; Elisa Villa, a supervisory assistant public defender; and the petitioner. On May 25, 2016, the court issued an oral ruling from the bench. In relevant part, the court made the following findings of fact and conclusions of law concerning the petitioner's claim that Millbrandt had rendered ineffective assistance: "Millbrandt was aware of the immigration issues and it is clear from his testimony ... that he did, in fact, investigate, discuss and understand the immigration issues and immigration status of [the petitioner].... Millbrandt [met] the minimal standards of providing advice on the immigration issue to [the petitioner]. It does not, however, appear that [Millbrandt] categorically advised [the petitioner] that he would under any and all circumstances be deported to Jamaica if he accepted this guilty plea. He did, in fact, fall slightly short of that statement....

"Nevertheless, [the petitioner] and his counsel did discuss the immigration issues numerous times. [Millbrandt] told [the petitioner] to assume that he would be deported.³ In other words, when making the decision as to whether to accept the plea bargain, he all but told him it would be ... a virtual certainty [that the petitioner would] be deported. He told him there was a substantial likelihood of deportation.

"It is clear that [the petitioner] and [Millbrandt] discussed the immigration issues early and often. In fact, [Millbrandt] reviewed the document that [Villa] had prepared, which parenthetically the court notes is a thorough summary of the issue for criminal practitioners.

"[Millbrandt] further indicated that he spoke with an immigration lawyer.⁴ [Millbrandt] indicated that he even discussed the immigration issues with the prosecutor, but the prosecutor was not interested or concerned about the immigration issues, nor is there any case law that suggests that a prosecutor has any duty to consider immigration implications.

"[Millbrandt] told the petitioner that there was a likelihood that he would be deported. It's a bit disingenuous at this point then for [the petitioner] to indicate he wasn't aware that by pleading to this case there could be adverse immigration effects upon his immigration status.

"I will specifically find that the advice of [Millbrandt], while perhaps not as thorough as that suggested by [habeas] counsel for the petitioner, did meet the minimal standards of constitutional acceptability and that he did not violate the standard of care required of a criminal defense counsel operating within the state of Connecticut." (Emphasis added; footnote added.)

Accordingly, the court denied the petition for a writ of habeas corpus because the petitioner had failed to prove deficient performance, and subsequently denied further the petitioner's petition for certification to appeal. This appeal followed. Additional facts will be set forth as necessary.

I

The petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal from the denial of his petition for a writ of habeas corpus with respect to his claims of ineffective assistance of counsel. Specifically, he argues that because these issues are debatable among jurists of reason, a court could resolve the issues differently, and, therefore, the habeas court abused its discretion in denying his petition to appeal.

"Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden , 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden , 230 Conn. 608, 612, 646 A.2d 126 (1994). First, [the petitioner] must demonstrate that the denial of his petition for certification constituted an abuse of discretion.... Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the merits.... To prove that the denial of his petition for certification to appeal constituted an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further....

"In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous. In other words, we review the petitioner's substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria ... adopted by [our Supreme Court] for determining the propriety of the habeas court's denial of the petition for certification." (Citations omitted; internal quotation marks...