Thiersaint v. Comm'r of Corr.

316 Conn. 89

111 A.3d 829

Emmanuel THIERSAINT

v.COMMISSIONER OF CORRECTION.

No. 19134.

Supreme Court of Connecticut.

Argued April 29, 2014.

Decided April 14, 2015.

Matthew A. Weiner, deputy assistant state's attorney, with whom were Marjorie Allen Dauster, senior assistant state's attorney, and, on the brief, David I. Cohen, state's attorney, and Marcia A. Pillsbury, deputy assistant state's attorney, for the appellant (respondent).

Kate Mollison and Celso Perez, law student interns, with whom were Muneer I. Ahmad, James Swaine, New Haven, and, on the brief, Robert Fuentes, law student intern, for the appellee (petitioner).

Elisa L. Villa, Bristol, filed a brief for the Connecticut Criminal Defense Lawyers Association as amicus curiae.

Christopher N. Lasch filed a brief on behalf of various legal scholars as amici curiae.

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, MCDONALD, ESPINOSA and ROBINSON, Js.

Opinion

ZARELLA, J.

The respondent, the Commissioner of Correction, appeals from the judgment of the habeas court granting the amended petition for a writ of habeas corpus filed by the petitioner, Emmanuel Thiersaint, on the ground that the petitioner's trial counsel rendered ineffective assistance by failing to advise him, pursuant to the rule announced in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), that his conviction for possession of narcotics with intent to sell, an aggravated felony, would result in his almost certain deportation and permanent removal from the United States.¹ The respondent claims that the judgment should be reversed because the habeas court incorrectly concluded that Padilla applies retroactively to the petitioner's guilty plea, and, therefore, the petitioner was misadvised and prejudiced under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The petitioner replies that this court should conclude that Padilla applies retroactively as a matter of Connecticut law and affirm the habeas court's judgment because: (1) the requirement in Padilla that defense counsel provide accurate immigration advice to noncitizen clients was required by the professional norms in Connecticut at the time of his trial; (2) even if Padilla announced a new rule, Connecticut habeas petitions function as de facto direct review of ineffective assistance claims, and both old and new rules are applicable on direct review; (3) Connecticut has alternative procedural mechanisms to ensure the finality of criminal judgments; and (4) Connecticut historically has given special solicitude to the right to counsel and should continue to uphold that tradition in the present case. In the alternative, the petitioner argues that his trial counsel provided him with gross misadvice that rendered his plea involuntary, unintelligent, and thus invalid, and that his counsel failed to provide effective assistance because he did not pursue a drug dependency defense.² We conclude that Padilla does not apply retroactively to the petitioner's plea and that the petitioner cannot prevail on either of the alternative grounds. Accordingly, we reverse the judgment of the habeas court.

The following relevant facts and procedural history are set forth in the habeas court's opinion. “In 1994, when the petitioner was fourteen years old, he left his native country of Haiti with his father and came to the United States. He entered the United States legally, with a ‘green card’ and thus held a status as a permanent resident of the United States. He has lived in the United States for almost two decades, since 1994, and attended high school here. He has no relatives in Haiti.

“A few years after the petitioner arrived in the United States, he was in a serious car accident, during which he was critically injured. As a result of his injuries, the petitioner had to have his right leg amputated above the knee and since that time has required either [a] prosthesis to walk or a wheelchair to get around....

“After the petitioner's accident, he spent eight months in the hospital, where he was given a number of drugs for his injuries. After leaving the hospital, the petitioner developed a drug addiction to crack cocaine. The petitioner has not used illegal drugs for several years. He presently lives with his girlfriend of seven years and their young daughter....

“On September 20, 2006, the petitioner was arrested and charged in two separate cases with the following charges in both cases: (1) sale of narcotics in violation of General Statutes [Rev. to 2005] § 21a–278 (b); (2) sale of narcotics within 1500 feet of a school in violation of General Statutes § 21a–278a (b) ; (3) possession of narcotics in violation of General Statutes § 21a–279 (a) ; and (4) possession of narcotics within 1500 feet of a school in violation of ... § 21a–279 (d). The charges stemmed from two $20 sales of crack cocaine by the petitioner to an undercover police officer. At the time of his 2006 arrest, the petitioner was on probation, having been convicted [in 2004] after a plea of possession of a controlled substance in violation of ... § 21a–279 (a). As [a] condition of his probation, the court ordered ‘substance abuse evaluation and treatment.’

“The petitioner was arraigned on the new charges on September 29, 2006, at which time he pleaded not guilty. The petitioner could not make the bond set by the court and therefore, remained incarcerated during the pretrial proceedings in this case. Because he could not afford his own attorney, [S]pecial [P]ublic [D]efender [John] Imhoff was appointed to represent him.

“[Imhoff] is an experienced criminal defense attorney. In 2006 ... Imhoff had a state contract to represent indigent criminal defendants for a fee. In the petitioner's case ... Imhoff was paid $250, which covered his fee for all of the pretrial proceedings in this case. When ... Imhoff was appointed to represent the petitioner, he knew the petitioner was from Haiti, and had entered the United States legally.

“Although the petitioner's record evinced a possible substance abuse history ... Imhoff did not seek to have the petitioner evaluated for substance abuse. Also, even though [a diversionary program operated by the former Connecticut Alcohol and Drug Abuse Commission, now the Department of Mental Health and Addiction Services] under General Statutes § 17a–696, was available to the petitioner ... Imhoff did not pursue it because he did not believe the court would grant [the petitioner admission into] the program.

“[Imhoff] engaged in plea negotiations with the state's attorney and the court and ultimately received a court offer of seven ... years [of imprisonment] suspended after two ... years followed by five ... years' probation with no mandatory minimums on all charges if [the petitioner pleaded] to one count of possession with intent to sell under General Statutes § 21a–277 (a). During the plea negotiations ... Imhoff asked the state to reduce the charge to possession only, but the state declined because the petitioner had sold drugs to an undercover police officer.... Imhoff did not raise the issue of a reduction in the charge to possession with the court during the supervised pretrial. In seeking a reduction of the charge to possession, Imhoff did not explain to the state or the court that the petitioner was subject to mandatory deportation or suggest that the charge be reduced in exchange for the petitioner agreeing to do more prison time on the reduced charge.

“The petitioner testified that ... Imhoff met with him approximately five times in the holding cells in the Norwalk courthouse, and did not advise him regarding the immigration consequences of his plea.... Imhoff testified that he told the petitioner that he should consult with an attorney knowledgeable in immigration law regarding the immigration consequences of the plea, as well as any postconviction immigration proceedings. Even though the petitioner was incarcerated and indigent ... Imhoff did not obtain an immigration [attorney] for the petitioner to consult with nor did he himself consult with such an attorney on the petitioner's behalf.” (Footnote omitted.)

“[Imhoff] had participated in seminars on representing noncitizen defendants, including one held in 2006 and sponsored by the [Chief] [P]ublic [D]efender's [O]ffice. He was provided with a manual ... which provided guidance specific to representing noncitizen criminal defendants in Connecticut. [J. Baron & A. Walmsley, A Brief Guide to Representing Noncitizen Criminal Defendants in Connecticut (Rev.2005).] The manual specifically and clearly indicates that § 21a–277 (a), possession with intent to sell, is an ‘aggravated felony,’ which it states is the ‘worst category of criminal offenses for immigration purposes.’ [Id., p. 4.]”

“Had ... Imhoff consulted with an immigration attorney, he would have been advised to avoid any conviction that would constitute an ‘aggravated felony’ at all costs because a conviction under § 21a–277 (a) would constitute an aggravated felony that would subject the petitioner to mandatory detention and deportation, and bar him from asserting legitimate defenses to removal....

“Despite believing that the petitioner needed separate counsel knowledgeable in immigration matters to advise the petitioner regarding the immigration consequences of the plea offer ... Imhoff nonetheless claims to have advised the petitioner regarding these issues. Although ... Imhoff could not recall precisely what he told the petitioner ... he could recall ... [that he] told the petitioner that he would ‘probably’ have to deal with immigration after his state criminal proceedings concluded, that he would have an immigration hearing ‘and if you have a hearing there is some chance you might win, but I thought it was very unlikely,’ and ‘it'd be very difficult not to be deported.’

“[Imhoff] did not tell the petitioner that because his plea to the charge of possession with intent to sell under § 21a–277 (a) would result in a...