Niver v. Commissioner of Correction

919 A.2d 1073

101 Conn.App. 1

Alicja NIVER v. COMMISSIONER OF CORRECTION.

No. 26426.

Appellate Court of Connecticut.

Argued February 20, 2007.

Decided May 1, 2007.

Kathryn Steadman, special public defender, for the appellant (petitioner).

Sarah Hanna, special deputy assistant state's attorney, with whom, on the brief, were David Shepack, state's attorney, and Dawn M. Gallo, assistant state's attorney, for the appellee (respondent).

BISHOP, ROGERS and McDONALD, Js.

PER CURIAM.

The petitioner, Alicja Niver, appeals from the judgment of the habeas court denying her amended petition for a writ of habeas corpus. The petitioner's sole claim on appeal is that she received ineffective assistance of counsel because she was not informed adequately concerning the immigration consequences of her guilty plea. We affirm the judgment of the habeas court.

The relevant facts and procedural history are set forth in the court's memorandum of decision. The petitioner was charged in connection with an incident that occurred on June 3, 1999, in which she entered a coffee shop in Torrington and, after indicating that she was armed, unlawfully stole money and fled the scene with a patron's vehicle. Following her arrest and arraignment, the petitioner entered into a plea agreement with the state through which she agreed to plead guilty to robbery in the third degree in violation of General Statutes § 53a-136 and larceny in the third degree in violation of General Statutes § 53a-124. Pursuant to the agreement, she would receive a total effective sentence of ten years incarceration, suspended after five years, with a right to argue for less. Thereafter, the petitioner was sentenced to ten years incarceration, execution suspended after three years, and five years probation.

The petitioner filed an amended petition for a writ of habeas corpus on March 2, 2004, claiming ineffective assistance of counsel. On January 5, 2005, the court denied the petitioner's amended petition, finding that the petitioner's trial counsel had provided competent representation, which did not affect the validity of her guilty plea, and that she would not have pleaded otherwise or insisted upon going to trial. Accordingly, the court concluded that the petitioner had failed to satisfy either prong of the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The court subsequently granted the petition for certification to appeal and this appeal followed.

On appeal, the petitioner claims that the court improperly denied the habeas corpus petition on the basis of her assertion that defense counsel failed to inform her that she would "definitely" or "certainly" be deported as a result of her guilty plea, and, as a result, her guilty plea was not knowingly, intelligently and voluntarily made. We are unpersuaded.

"Our standard of review of a habeas court's judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary." (Internal quotation marks omitted.) Grant v. Commissioner of Correction, 86 Conn.App. 392, 397, 861 A.2d 1191 (2004), cert. denied, 273 Conn. 903, 868 A.2d 744 (2005).

"In Strickland ... the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel's performance was deficient. ... Second, the [petitioner] must show that the deficient performance prejudiced the defense.... Unless a [petitioner] makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversarial process that renders the result unreliable." (Citation omitted; internal quotation marks omitted.) Santiago v. Commissioner of Correction, 90 Conn.App. 420, 424-25, 876 A.2d 1277, cert. denied, 275 Conn. 930, 883 A.2d 1246 (2005), cert. denied sub nom. Santiago v. Lantz, ___ U.S. ___, 126 S.Ct. 1472, 164 L.Ed.2d 254 (2006).

Moreover, "[i]n Hill v. Lockhart, [474 U.S. 52, 57-58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)], the court determined that the same two-part standard applies to claims arising from the plea negotiation process and that the same justifications for imposing the prejudice requirement in Strickland were relevant in the context of guilty pleas. Although the first half of the Strickland test remains the same for determining ineffective assistance of counsel at the plea negotiation stage, the court modified the prejudice standard.... [I]n order to satisfy the prejudice requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." (Internal quotation marks omitted.) Valentin v. Commissioner of Correction, 94 Conn.App. 751, 755-56, 895 A.2d 242 (2006).

The crux of the petitioner's claim is that her counsel, in conjunction with advising her regarding her potential guilty plea, was obligated to inform her that her deportation would be a certainty and not a mere possibility. The failure to do so, the petitioner alleges, constituted ineffective assistance of counsel. We disagree.

"A defendant need only be made aware of the direct consequences of his plea for it to be valid. Brady v. United States, 397 U.S. 742, 755, 90...