Stephenson v. Comm'r of Corr.

305 A.3d 266

222 Conn.App. 331

Joseph STEPHENSON

v.COMMISSIONER OF CORRECTION

(AC 45482)

Appellate Court of Connecticut.

Argued April 5, 2023

Officially Released November 14, 2023

Timothy F. Costello, supervisory assistant state’s attorney, with whom, on the brief, were Paul J. Ferencek, state’s attorney, and Michael Proto and Juliana Waltersdorff, senior assistant state’s attorneys, for the appellant (respondent).

Vishal K. Garg, West Hartford, assigned counsel, for the appellee (petitioner).

Elgo, Suarez and Bear, Js.

BEAR, J.

₃₃₃After the granting of certification to appeal, the respondent, the Commissioner of Correction, appeals ₃₃₄from the judgment of the habeas court granting, the petition for a writ of habeas corpus filed by the petitioner, Joseph Stephenson. The habeas court found that the petitioner’s criminal trial counsel, James Lamontagne, had provided ineffective assistance by failing to properly advise the petitioner about the mandatory deportation consequence of his guilty pleas to two charges of larceny in the sixth degree. On appeal, the respondent claims that the habeas court’s determination that Lamontagne had performed deficiently was improper because the court (1) did not determine what advice Lamontagne actually provided, as required by Budziszewski v. Commissioner of Correction, 322 Conn. 504, 142 A.3d 243 (2016), (2) failed to hold the petitioner to his burden to rebut the presumption that Lamontagne’s advice fell within the wide range of reasonable professional assistance, and (3) applied a higher standard than what the law requires when it based its finding of deficient performance on Lamontagne’s failure to advise the petitioner that his pleas would" ‘automatically subject him to mandatory deportation.’ " (Emphasis omitted.) We affirm the judgment of the habeas court.

The following undisputed facts and procedural history were set forth by this court in a previous appeal in this matter. See Stephenson ?. Commissioner of Correction, 197 Conn. App. 172,174-77, 231 A.3d 210 (2020). "The petitioner is a citizen of Jamaica, which is his country of origin. On or about December 20, 1985, the petitioner was admitted to the United States under non-immigrant B-2 status. On February 14, 2000, the petitioner’s immigration status was changed to that of a lawful permanent resident.

"On March 5, 2013, the petitioner pleaded guilty to a charge of larceny in the sixth degree in violation of General Statutes § 53a-125b in, each of two dockets ₃₃₅(larceny convictions).¹ On April 9, 2013, the petitioner was sentenced to two concurrent 364 day terms of imprisonment on the larceny convictions.² The concurrent 364 day sentences were negotiated by … Lamontagne … and the prosecutor in an effort by … Lamontagne to alleviate any adverse consequences that the petitioner might encounter under federal immigration law as a result of the larceny convictions.

₃₃₆"On July 9, 2013, the United States Department of Homeland Security (department) charged the, petitioner ‘as removable pursuant to [the Immigration and Nationality Act, 8 U.S.C. § 1227 (a) (2) (A) (ii) (2012)] based on [the] larceny convictions? Subsequently, on January 21, 2014, the department further charged the petitioner ‘as removable pursuant to [8 U.S.C. § 1227 (a) (2) (A) (iii) (2012)], as an aggravated felon’ for a prior conviction of robbery in the third degree (robbery conviction).³ In a decision dated July 22, 2014, the immigration judge concluded that the larceny convictions constituted crimes of moral turpitude under 8 U.S.C. § 1227 ₃₃₇(a) (2) (A) (ii), and that the robbery conviction was an aggravated felony under 8 U.S.C. § 1227 (a) (2) (A) (iii). On the basis of these conclusions, the immigration judge ordered that the petitioner be removed from the United States to Jamaica. On December 15, 2014, the Board of Immigration Appeals (board) ‘affirm[ed] that the [petitioner] ha[d] been convicted of an aggravated felony for the reasons given in the [i]mmigration [j]udge’s decision’ and, accordingly, dismissed his appeal. Because the board affirmed the immigration judge’s determination that the robbery conviction was an aggravated felony, it concluded that it ‘need not address whether the [petitioner] [w]as also … convicted of crimes involving moral turpitude.’

"On September 25, 2013, while in custody serving his concurrent 364 day sentences and shortly after the department charged him as removable, the petitioner filed a self-represented petition for a writ of habeas corpus seeking to vacate the larceny convictions.⁴ On January 2, 2018, the petitioner, now represented by counsel, filed an amended petition for a writ of habeas corpus (operative petition). In the operative petition, the petitioner alleged that … Lamontagne rendered ineffective assistance of counsel. Specifically, the petitioner alleged that … Lamontagne’s failure to accurately advise him that pleading guilty to the larceny charges against him would make him ‘deportable, removable, and inadmissible for reentry under federal immigration law,’ constituted deficient performance. The petitioner further alleged that, but for Lamontagne’s deficient performance, ‘[t]here [was] a reasonable probability that … [he] would not have entered a guilty plea.’

₃₃₈"On May 22, 2018, a trial on the operative petition was held before the court, Sferrazza, J. On May 29, 2018, Judge Sferrazza issued a memorandum of decision in which he held that the operative petition was moot."⁵ (Footnotes added; footnotes in original; footnotes omitted.) Stephenson v. Commissioner of Correction, supra, 197 Conn. App. at 174-77, 231 A.3d 210. After Judge Sferrazza granted the petition for certification to appeal; id., at 177, 231 A.3d 210; the petitioner appealed to this court, which concluded that the operative habeas petition was not moot, reversed the habeas court’s judgment, and remanded the case for a new habeas trial. Id., at 195, 203, 231 A.3d 210.

Following remand, a trial date was set for August 4, 2021, but, prior thereto, the parties jointly filed notice that they were resting on the record evidence and represented that they would not be offering further testimony. After briefs were filed and the habeas court reviewed the exhibits, the transcript of the prior habeas trial that was held on May 22, 2018, and the newly filed briefs, the court ordered supplemental briefing. Specifically, the order stated: " ‘This court, from its review, finds that the matter can be completed without prejudice to the parties. By resting on the existing record, the parties have indicated that they see no need to call new witnesses or recall previous witnesses for further testimony. This court does not conclude it necessary ₃₃₉to recall any witness whose testimony is material and disputed. Nevertheless, the Appellate Court’s decision ordered a new trial and highlighted the need for a habeas court to make "findings with respect to issues that the parties disputed." … Additionally, the Appellate Court noted that there were credibility determinations the habeas court needed to resolve on remand. … Accordingly … the parties [were ordered] to submit simultaneous briefs … [that] shall address any concerns the parties have based upon the foregoing, as well as indicate that each party affirmatively and explicitly assents to the court making all necessary findings and assessments from the May 22, 2018 transcript and evidentiary record, and, render judgment thereon.’ " (Citations omitted.) Subsequently, on February 18, 2022, both parties filed supplemental briefs setting forth their agreement with the remanded claims being adjudicated on the basis of the existing record.

In a memorandum of decision dated April 26, 2022, the habeas court rendered judgment granting the operative habeas petition. In making that decision, the court made a number of factual findings on the basis of the testimony and exhibits submitted at the May 22, 2018 habeas trial. Because the respondent’s first claim chal- lenges the sufficiency of those findings, we recount them in detail. Specifically, the court found: "Lamontagne began representing the petitioner in [a case involving a theft at a Costco store (Costco case)] on or about May 27, 2011. The matter was continued several times so the defense could conduct its investigation. On November 21, 2011, the petitioner applied for the psychiatric accelerated rehabilitation diversionary program, which was denied by the court, Hudock, J., on February 6, 2012. After additional continuances, the petitioner appeared on June 26, 2012, in [a case involving a theft at a Stew Leonard’s store (Stew Leonard’s case)], and … Lamontagne was appointed in that ₃₄₀case in addition to the Costco case. On February 25, 2013, shortly before jury selection was scheduled to begin on March 5, the petitioner and … Lamontagne appeared in court to discuss various pretrial issues.

"On March 5, 2013, the petitioner appeared before the court, Dennis, J., for a change of plea. The petitioner pleaded guilty, in [two separate dockets, to one count of] larceny in the sixth degree in [each] docket. … In each of the two dockets, the petitioner pleaded guilty as a persistent larceny offender. The petitioner also admitted in both cases to being previously convicted ,of larceny in the sixth degree on December 13,2007, in Norwalk, as well as of larceny in the, fifth degree on January 9, 2004, in Bridgeport. After the prosecutor detailed the supporting facts, the court canvassed the petitioner. The petitioner acknowledged that he had sufficient time to speak with … Lamontagne about entering his guilty pleas; he was satisfied with the advice he had, received from counsel; no one had threatened or forced or promised him anything into pleading guilty; he was pleading guilty as a persistent larceny offender by acknowledging that he had at least two previous larceny convictions; he knew the maximum penalty for each of the two cases was five years of incarceration; he...