McMillion v. Commissioner of Correction

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 ROBERT MCMILLION v. COMMISSIONER
OF CORRECTION
(AC 35308)
DiPentima, C. J., and Alvord and Keller, Js.
Argued April 23—officially released August 5, 2014

(Appeal from Superior Court, judicial district of
Tolland, Solomon, J. [motion to consolidate]; Cobb,
J. [judgment].)
Michael Zariphes, assigned counsel, for the appel-
lant (petitioner).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were David I. Cohen, state’s attor-
ney, and James M. Bernardi, supervisory assistant
state’s attorney, for the appellee (respondent).
 Opinion

KELLER, J. The petitioner, Robert McMillion, appeals
from the judgment of the habeas court denying his
second amended petition for a writ of habeas corpus.
On appeal, the petitioner claims that the court abused
its discretion in denying his petition for certification to
appeal and argues that the habeas court improperly (1)
granted the motion to dismiss brought by the respon-
dent, the Commissioner of Correction, for the petition-
er’s failure to make a prima facie case pursuant to
Practice Book § 15-81 on his claim that his trial counsel
rendered ineffective assistance by failing to advise him
adequately with regard to a pretrial plea offer, and (2)
failed to find that his trial counsel had rendered ineffec-
tive assistance by failing to advise him adequately with
regard to the pretrial plea offer. We conclude that the
habeas court abused its discretion in denying certifica-
tion to appeal and that the habeas court improperly
granted the respondent’s motion to dismiss. Accord-
ingly, we reverse the judgment and remand the case to
the habeas court for a new trial on the petitioner’s claim
that his trial counsel rendered ineffective assistance
when advising him as to whether to accept or to reject
the plea offer.
The following facts and procedural history are rele-
vant to our resolution of the petitioner’s claims. On
September 16, 2007, the petitioner struck the victim,
Ivan Flores, in the head multiple times with a baseball
bat.2 The state charged the petitioner with the crime of
assault in the first degree in violation of General Stat-
utes § 53a-59 (a) (1). On June 1, 2009, a jury found the
petitioner guilty of assault in the first degree, and the
trial court sentenced him to eight years of incarceration
followed by five years of special parole with special
conditions. This court affirmed his conviction on direct
appeal. State v. McMillion, 128 Conn. App. 836, 17 A.3d
1165, cert. denied, 302 Conn. 903, 23 A.3d 1243 (2011).
Thereafter, the petitioner filed the present habeas
action in which he alleged that both his trial and appel-
late attorneys had rendered ineffective assistance.3
On May 3, 2012, the petitioner filed the operative
second amended petition for a writ of habeas corpus
in which he alleged that his trial counsel, Attorney Jon
Imhoff, rendered ineffective assistance by failing: (1)
to call certain witnesses for the defense; (2) to investi-
gate the evidence and/or the state’s witnesses ade-
quately prior to trial; (3) to advise the petitioner
properly regarding the state’s pretrial plea offer; (4) to
procure the petitioner’s medical records and present
them as mitigating evidence; and (5) to procure an
expert witness to testify concerning the petitioner’s
medical condition in order to mitigate his culpability.
The respondent filed an answer and denied the petition-
er’s claims.
 On November 6, 2012, the habeas court held a hearing
at which the petitioner testified as the only witness on
his behalf. As to the third claim of ineffective assistance
of trial counsel regarding Imhoff’s advice concerning
the plea offer, the petitioner testified that he had been
represented by Imhoff at the criminal trial and met
with him on four occasions prior to trial. The petitioner
claimed that, prior to trial, Imhoff conveyed to him a
plea offer by the state that would require that he spend
five years in prison.4 He testified that when Imhoff con-
veyed the plea offer, ‘‘He told me . . . [t]he plea bar-
gain was five years. He told me if I took it to trial, I
would get five, mandatory. He never explained to me
that if I was to take it to trial, that the five mandatory
was the minimum, that I could get up to twenty years.
He never explained that to me. He told me that it was
[a] five [year] plea bargain, and if I was to go to trial,
it would be five, mandatory, and I kept telling him, I
said, Well, there’s no mandatory sentence in the state
of Connecticut for this charge.5 He told me . . . Listen.
I know. I’m the attorney here.’’ On the basis of Imhoff’s
alleged explanation, the petitioner decided to reject the
plea offer, concluding that he was not taking a risk by
proceeding to trial because he would spend five years
in prison regardless of whether he pleaded guilty or
was convicted and sentenced after a trial. He indicated
that Imhoff never advised him whether to accept or
reject the five year offer. The petitioner stated that
Imhoff did not explain until jury selection began that, by
going to trial, he faced a five year mandatory minimum
sentence and that his maximum exposure on the charge
of first degree assault was twenty years in prison. At
that point, the petitioner claimed, he asked Imhoff to
determine if the plea offer ‘‘was still on the table.’’ Upon
inquiry, Imhoff advised him that the offer no longer was
available. The petitioner testified that had he known a
rejection of the plea offer exposed him to a maximum
penalty of twenty years in prison if he was convicted
after trial, he would have accepted the state’s offer.
Following the petitioner’s habeas testimony, he
rested without calling any further witnesses. In addi-
tion, the transcripts of his underlying criminal jury trial,
including the sentencing proceeding, and the decision
in his direct appeal were, by agreement of the parties
prior to the start of the trial, admitted as full exhibits.
Prior to calling any witnesses, the respondent orally
moved to dismiss the petition at the close of the petition-
er’s case.6 The respondent argued that the petitioner
failed to show any evidence of Imhoff’s deficient perfor-
mance. Specifically, the respondent argued that the only
evidence presented was that the alleged five year plea
offer had been made, and that the petitioner received
an eight year sentence after rejecting the offer and was
found guilty at trial. The respondent asserted that, given
the posttrial result, a sentence of eight years incarcera-
tion followed by five years special parole, Imhoff had
a better assessment of the worth of the case in terms
of an ultimate prison sentence than did the prosecutor,
and that it was entirely reasonable for the petitioner to
reject a five year plea offer in exchange for proceeding
to trial and being exposed to an additional three years
in prison at that time.
In response, the petitioner argued that his own testi-
mony as to what Imhoff told him, along with his under-
standing of counsel’s advice, demonstrated ineffective
representation and established a prima facie case to
survive the respondent’s motion to dismiss. The peti-
tioner acknowledged that ‘‘of course, the court can
believe him or not believe him . . . but right now, as
it stands,’’ the petitioner’s testimony was sufficient to
prevent dismissal of his claim of ineffectiveness on the
basis of the adequacy of counsel’s advice concerning
the pretrial plea offer.
‘‘In Strickland v. Washington, [466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States
Supreme Court established that for a petitioner to pre-
vail on a claim of ineffective assistance of counsel, he
must show that counsel’s assistance was so defective
as to require reversal of [the] conviction . . . . That
requires the petitioner to show (1) that counsel’s perfor-
mance was deficient and (2) that the deficient perfor-
mance prejudiced the defense . . . . [A] successful
petitioner must satisfy both prongs . . . [and the] fail-
ure to satisfy either . . . is fatal to a habeas petition.’’
(Citation omitted; internal quotation marks omitted.)
Perez v. Commissioner of Correction, 150 Conn. App.
371, 377–78, 90 A.3d 374 (2014). The habeas court, in
entering a dismissal on the claim of counsel’s ineffective
assistance as to advice regarding the plea offer, relied
on the recent United States Supreme Court decision in
Missouri v. Frye, U.S. , 132 S. Ct. 1399, 182 L.
Ed. 2d 379 (2012), as to the standard for establishing
ineffective assistance in the context of a rejection of a
pretrial plea offer. On the basis of that case, the habeas
court ruled that the petitioner had failed to present a
prima facie case that he was prejudiced by Imhoff’s
alleged deficient performance because he had not pre-
sented any evidence that the trial court would have
accepted the terms of the plea offer had it been pre-
sented to that court. The habeas court then ‘‘directed
[a] verdict’’7 against the petitioner on his claim that he
was improperly advised on the plea offer.8 The habeas
court subsequently denied the petitioner certification
to appeal and this appeal followed. Additional facts and
procedural history will be set forth as necessary.
The petitioner claims that the habeas court abused
its discretion in denying certification to appeal on the
ground that the habeas court improperly dismissed his
claim concerning ineffective assistance during the plea
bargaining process due to its misinterpretation of the
United States Supreme Court decision in Frye. The peti-
tioner maintains that, based upon a proper application
of Frye, he presented sufficient evidence to survive a
dismissal. We agree that the court’s denial of certifica-
tion to appeal constituted an abuse of discretion and
that the court improperly dismissed the petitioner’s
case.
We begin by setting forth the applicable standard of
review and procedural hurdles that a petitioner must
surmount to obtain appellate review of the merits of a
habeas court’s denial of a habeas petition following
denial of certification to appeal. ‘‘In Simms v. Warden,
229 Conn. 178, 187, 640 A.2d 601 (1994), [our Supreme
Court] concluded that . . . [General Statutes] § 52-470
(b) prevents a reviewing court from hearing the merits
of a habeas appeal following the denial of certification
to appeal unless the petitioner establishes that the
denial of certification constituted an abuse of discretion
by the habeas court. In Simms v. Warden, 230 Conn.
608, 615–16, 646 A.2d 126 (1994), [our Supreme Court]
incorporated the factors adopted by the United States
Supreme Court in Lozada v. Deeds, 498 U.S. 430, 431–32,
111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), as the appro-
priate standard for determining whether the habeas
court abused its discretion in denying certification to
appeal. This standard requires the petitioner to demon-
strate that the issues are debatable among jurists of
reason; that a court could resolve the issues [in a differ-
ent manner]; or that the questions are adequate to
deserve encouragement to proceed further. . . . A
petitioner who establishes an abuse of discretion
through one of the factors listed above must then dem-
onstrate that the judgment of the habeas court should
be reversed on its merits. . . . 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 reason-
ably determined that the petitioner’s appeal was frivo-
lous.’’ (Emphasis omitted; internal quotation marks
omitted.) Tutson v. Commissioner of Correction, 144
Conn. App. 203, 214–15, 72 A.3d 1162, cert. denied, 310
Conn. 928, 78 A.3d 145 (2013).
‘‘The conclusions reached by the trial court in its
decision to dismiss [a] habeas petition are matters of
law, subject to plenary review. . . . [When] the legal
conclusions of the court are challenged, [the reviewing
court] must determine whether they are legally and
logically correct . . . and whether they find support in
the facts that appear in the record.’’ (Internal quotation
marks omitted.) Grant v. Commissioner of Correction,
121 Conn. App. 295, 298, 995 A.2d 641, cert. denied, 297
Conn. 920, 996 A.2d 1192 (2010).
The petitioner argues, and the respondent concedes,
that a reasonable jurist could conclude that the peti-
tioner presented enough evidence to survive a dismissal
of his claim that Imhoff rendered ineffective assistance
when conveying the pretrial plea offer.9 For the reasons
that follow, we agree with the parties that the habeas
court abused its discretion in denying certification to
appeal.
The legal principles governing a trial court’s decision
to dismiss a claim for failure to present a prima facie
case pursuant to Practice Book § 15-8 are well settled.
‘‘A prima facie case, in the sense in which that term is
relevant to this case, is one sufficient to raise an issue
to go to the trier of fact. . . . In order to establish a
prima facie case, the proponent must submit evidence
which, if credited, is sufficient to establish the fact or
facts which it is adduced to prove. . . . In evaluating
the [granting of] a motion to dismiss, [t]he evidence
offered by the plaintiff is to be taken as true and inter-
preted in the light most favorable to [the plaintiff], and
every reasonable inference is to be drawn in [the plain-
tiff’s] favor.’’ (Internal quotation marks omitted.) Winn
v. Posades, 281 Conn. 50, 54–55, 913 A.2d 407 (2007);
see also Lapointe v. Commissioner of Correction, 113
Conn. App. 378, 388, 966 A.2d 780 (2009). ‘‘Whether the
plaintiff has established a prima facie case entitling the
plaintiff to submit a claim to a trier of fact is a question
of law over which [this court’s] review is plenary.’’
(Internal quotation marks omitted.) Winn v. Posades,
supra, 55.
The habeas court relied on the United States Supreme
Court decision in Missouri v. Frye, supra, 132 S. Ct.
1399, to dismiss the petitioner’s claim that Imhoff ren-
dered ineffective assistance when conveying the pre-
trial plea offer. Specifically, the habeas court
interpreted Frye to require the presentation of direct
evidence ‘‘that the trial court would have accepted [the
terms of the] plea had it been brought to the court
. . . .’’ Frye and its companion case, Lafler v. Cooper,
U.S. , 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012),
held that habeas petitioners can establish a violation
of their sixth amendment right to counsel by proving
that there is ‘‘a reasonable probability [that] they would
have accepted the . . . plea offer had they been
afforded effective assistance of counsel.’’ Missouri v.
Frye, supra, 1409; see also Lafler v. Cooper, supra, 1384
(‘‘[i]n the context of pleas a defendant must show the
outcome of the plea process would have been different
with competent advice’’).
The petitioner in Lafler was similarly situated to the
petitioner here. He claimed that due to the inadequate
advice of counsel, he rejected a plea offer, went to trial
and that his sentence, imposed after conviction, was
more severe than the rejected plea offer. Lafler v. Coo-
per, supra, 132 S. Ct. 1383. In Lafler, the Supreme Court
held that in those circumstances, in order to satisfy the
Strickland prejudice prong, a petitioner ‘‘must show
that but for the ineffective advice of counsel there is a
reasonable probability that the plea offer would have
been presented to the court (i.e., that the defendant
would have accepted the plea and the prosecution
would not have withdrawn it in light of intervening
circumstances), that the court would have accepted its
terms, and that the conviction or sentence, or both,
under the offer’s terms would have been less severe
than under the judgment and sentence that in fact were
imposed.’’ (Emphasis in original.) Id., 1385.
In Frye, the United States Supreme Court elaborated
on how prejudice could be established from an objec-
tive standpoint without placing an extreme burden upon
the courts and litigants to routinely call judges and
prosecutors to the witness stand. Under Frye, the test
for whether a trial court would have accepted the terms
of a plea agreement is an objective test that does not
require direct evidence as to what an individual trial
judge would have done in a given case. Rather, this
determination of prejudice must be made by assessing
whether a ‘‘reasonable trial judge would have accepted
the sentence . . . .’’ Ebron v. Commissioner of Correc-
tion, 307 Conn. 342, 360, 53 A.3d 983 (2012), cert. denied
sub nom. Arnone v. Ebron, U.S. , 133 S. Ct. 1726,
185 L. Ed. 2d 802 (2013). In Frye, the court stated: ‘‘It
can be assumed that in most jurisdictions prosecutors
and judges are familiar with the boundaries of accept-
able plea bargains and sentences. So in most instances
it should not be difficult to make an objective assess-
ment as to whether or not a particular fact or interven-
ing circumstance would suffice, in the normal course,
to cause prosecutorial withdrawal or judicial nonap-
proval of a plea bargain. The determination that there
is or is not a reasonable probability that the outcome
of the proceeding would have been different absent
counsel’s errors can be conducted within that frame-
work.’’ Missouri v. Frye, supra, 132 S. Ct. 1410.
The habeas court in the present case analyzed the
petition in accordance with its interpretation of Frye
and Lafler. It does not appear that the court relied on
the recent decision of our Supreme Court in Ebron v.
Commissioner of Correction, supra, 307 Conn. 342,
which was released prior to the time that the court
rendered its decision and is directly applicable to the
present case.
Ebron analyzed the impact of both Frye and Lafler
on habeas claims concerning ineffective assistance of
counsel related to advice concerning plea offers. In
Ebron, the court stated: ‘‘[W]e must address what
appears to be a possible tension between Frye and
Lafler. Specifically, under Frye, the habeas court is
required to consider information that would have come
to the trial court’s attention after the defendant would
have accepted the plea offer but before he would have
been sentenced in determining whether the petitioner
was prejudiced by the deficient performance of counsel.
. . . The court in Lafler, however, declined to rule out
the possibility that a habeas court may be permitted to
consider such information when exercising its discre-
tion in crafting a remedy. . . . If the habeas court
already has determined, however, that the petitioner
was prejudiced because it is reasonably probable that
the trial court would have imposed the sentence embod-
ied in the plea offer even in light of an intervening
circumstance, such as the court’s review of a [presen-
tence investigation] report or a victim impact statement,
it is difficult to understand why the court should be
permitted to consider such a circumstance again when
it exercises its discretion to determine whether the
imposition of that sentence is the appropriate remedy.
. . . Accordingly, in order to avoid potentially conflict-
ing findings at the prejudice and remedy stages of a
habeas proceeding in a lapsed plea case, we conclude
that, to establish prejudice, a petitioner need establish
only that (1) it is reasonably probable that, if not for
counsel’s deficient performance, the petitioner would
have accepted the plea offer, and (2) the trial judge
would have conditionally accepted the plea agreement
if it had been presented to the court.’’ (Citations omit-
ted; emphasis omitted; footnotes omitted.) Id., 354–58.
A conditional acceptance of a plea occurs prior to the
sentencing hearing. See State v. Thomas, 296 Conn. 375,
389, 995 A.2d 65 (2010) (trial court’s acceptance of plea
agreement necessarily contingent upon results of pre-
sentence investigation report); Practice Book § 43-10
(‘‘[b]efore imposing a sentence . . . [1] [t]he judicial
authority shall afford the parties an opportunity to be
heard and, in its discretion, to present evidence on any
matter relevant to the disposition, and to explain or
controvert the presentence investigation report . . .
or any other document relied upon by the judicial
authority in imposing sentence,’’ and [2] consider state-
ments of victim and [3] defendant). The Supreme Court
in Ebron noted that a trial court lacks the authority to
unconditionally accept a guilty plea prior to considering
the results of a pending presentence investigation
report and indicated that in most cases, when a habeas
court finds prejudice under the standard previously set
forth, ‘‘that court should order the trial court to deter-
mine the proper remedy in light of any information
concerning the crime or the petitioner that would have
come to light between the acceptance of the plea offer
and the imposition of the sentence . . . .’’ Ebron v.
Commissioner of Correction, supra, 307 Conn. 358. The
court in Ebron adopted this bifurcated procedure to
provide ‘‘greater protections to habeas petitioners who
have received ineffective assistance of counsel during
the plea agreement process than those contemplated
in Lafler.’’ Id., 355 n.7. This standard, providing greater
protection to the petitioner, governs.
Although in this case no direct evidence was pre-
sented from a judge, prosecutor, or defense counsel as
to what the trial court would have done if it had been
presented with a five year plea agreement, viewing the
evidence in the light most favorable to the petitioner,
a reasonable jurist could have concluded that the peti-
tioner presented sufficient circumstantial evidence,
through his testimony and exhibits, to survive dis-
missal.10 Viewing the petitioner’s testimony as truthful
and drawing ‘‘every reasonable inference . . . in [his]
favor’’; (internal quotation marks omitted) Winn v.
Posades, supra, 281 Conn. 55; a reasonable jurist could
have concluded that the petitioner had satisfied Strick-
land’s prejudice prong because he demonstrated that
it was reasonably probable that, if not for counsel’s
deficient performance, he would have accepted the plea
offer, and that the trial judge would have conditionally
accepted the plea agreement if it had been presented
to the court. Specifically, viewing all of the petitioner’s
testimony as true, a reasonable jurist could have found
that Imhoff had incorrectly advised the petitioner right
up until the first day of jury selection, that Imhoff failed
to advise the petitioner of the maximum penalty for the
charged offense, and that Imhoff misled the petitioner
to believe that he would not risk exposure to any addi-
tional prison time should he take the case to trial and
lose. A reasonable jurist, viewing the evidence in the
light most favorable to the petitioner, could have found
that but for the ineffective advice of counsel, there was
a reasonable probability that a reasonable trial court,
presented with the plea agreement requiring the peti-
tioner to serve five years in prison, would have condi-
tionally accepted it. As the discrepancy between the
five year plea offer and the petitioner’s ultimate sen-
tence after being convicted at trial was only three years
of incarceration, a reasonable jurist, viewing the evi-
dence in the light most favorable to the petitioner, could
infer that the plea offer was not unduly lenient in light
of the petitioner’s conduct and, therefore, that a trial
court would have conditionally accepted the terms of
the plea agreement.11 We note that, under Ebron,
whether a presentence investigation report, a victim
impact statement, or some other intervening occur-
rence prior to sentencing but subsequent to the condi-
tional acceptance of the plea might have impacted on
the ultimate sentence are factors that ‘‘should be consid-
ered at the remedy stage, not when the habeas court
is determining whether there was prejudice.’’ Ebron v.
Commissioner of Correction, supra, 307 Conn. 360.
We conclude that the petitioner has demonstrated
that whether he presented sufficient evidence to estab-
lish a prima facie case for ineffective assistance of coun-
sel on the basis of improper advice as to whether to
accept or reject a plea offer is debatable among jurists
of reason, that a court could resolve the issue differ-
ently, or that the question raised deserves encourage-
ment to proceed further. Lozada v. Deeds, supra, 498
U.S. 431–32; Simms v. Warden, supra, 230 Conn. 616.
Consequently, we conclude that the court abused its
discretion in denying the petition for certification to
appeal on the basis of the claimed improper dismissal
of the petition.
Because a certifiable issue exists, we now turn to
the merits of the petitioner’s claim that the habeas court
erroneously dismissed his petition for failure to make
out a prima facie case. In reviewing the petitioner’s
testimony and other evidence in the light most favorable
to him, the petitioner established a prima facie case
for both deficient performance and resulting prejudice
under Strickland. ‘‘To establish Strickland prejudice a
defendant must show that there is a reasonable proba-
bility that, but for counsel’s unprofessional errors, the
result of the proceedings would have been different.
. . . In the context of pleas a defendant must show the
outcome of the plea process would have been different
with competent advice.’’ (Citation omitted; internal quo-
tation marks omitted.) Lafler v. Cooper, supra, 132 S.
Ct. 1384.
The petitioner’s testimony, which must be accepted
as true in ruling on the motion to dismiss, revealed
possible deficiencies with respect to Imhoff’s advice
regarding the plea offer. The facts and circumstances
surrounding the petitioner’s rejection of the plea offer,
as explained by him, demonstrate that an inadequate
level of information and advice was provided to him
by Imhoff on the issue of acceptance or rejection of
the plea. In addition, the transcripts of the petitioner’s
criminal jury trial proceedings and this court’s decision
in his direct appeal establish that the state had a strong
case against the petitioner, and thus, Imhoff should
have been strongly encouraging him to accept the plea
offer. The petitioner established a prima facie case that
he had not been advised by counsel of the maximum
penalty for the charged offense until the date of trial,
and that at that point the plea offer was off the table
and no longer available. He established a prima facie
case that he would have accepted a five year plea offer
had he been properly advised by his trial counsel and
that the trial judge would have conditionally accepted
the resulting agreement had it been presented to the
judge. In sum, the petitioner presented a prima facie
case, considering both his direct and circumstantial
evidence in the light most favorable to him, that there
was a reasonable probability that the plea agreement
would have been conditionally accepted by the trial
court had he been properly advised by counsel during
the plea process, and that the agreement’s terms would
have been less severe than the judgment and sentence
that were in fact imposed by the court after trial.
The habeas court erred in granting the midtrial dis-
missal. Although the habeas court might have been free,
at the conclusion of the trial, to reject the petitioner’s
ineffectiveness claim and deny it on the merits, the
court should have allowed the case to proceed to a
full conclusion.
We now address the proper remedy on appeal, an
issue on which the petitioner and the respondent dis-
agree. The petitioner asserts that this court, having
found the dismissal inappropriate, should proceed to
evaluate only the evidence he presented in the truncated
habeas trial, fully credit his testimony and exhibits on
the basis of our review of the cold record, and conclude
that he proved trial counsel’s ineffective assistance due
to counsel’s failure to advise the petitioner properly as
to the plea offer and the ramifications of rejecting that
offer and going to trial.12 The petitioner maintains that,
pursuant to Ebron, should we determine that he proved
that his trial counsel was ineffective, the appropriate
remedy is to remand the case to the habeas trial court
with orders to grant the petition and then to remand
the case back to the trial court to exercise its discretion
to ‘‘place the habeas petitioner, as nearly as possible,
in the position that he would have been in if there had
been no violation of his right to counsel,’’ which could
involve resentencing the petitioner, vacating the convic-
tion and resentencing the petitioner pursuant to the
plea agreement or leaving the conviction and sentence
from the trial undisturbed. (Internal quotation marks
omitted.)13 H. P. T. v. Commissioner of Correction,
310 Conn. 606, 615, 79 A.3d 54 (2013). The respondent
argues that we should remand the case for a new habeas
trial. We agree with the respondent.
It is axiomatic that ‘‘[a]ppellate courts never act as
finders of fact.’’ Gould v. Commissioner of Correction,
301 Conn. 544, 566, 22 A.3d 1196 (2011). ‘‘[A]n appellate
court cannot find facts or draw conclusions from pri-
mary facts found, but may only review such findings
as to see whether they might be legally, logically and
reasonably found.’’ (Emphasis in original; internal quo-
tation marks omitted.) Holley v. Commissioner of Cor-
rection, 62 Conn. App. 170, 180, 774 A.2d 148 (2001).
In this case, because the habeas court prematurely and
succinctly concluded the trial by dismissing the peti-
tioner’s claim for a lack of evidence on the Strickland
prejudice prong, other than the court’s conclusion that
the petitioner failed to ‘‘demonstrate that there’s a rea-
sonable probability that the plea would have been
entered without the prosecution canceling it or the trial
court refusing to accept it,’’ the record is devoid of any
other factual findings or other relevant legal determina-
tions for this court to review.14 ‘‘Whether the [petitioner]
can sustain his burden past this [early] stage of the
proceedings is an entirely different matter and not a
question this court needs to answer to resolve this
appeal.’’ Sullivan v. Thorndike, 104 Conn. App. 297,
305, 934 A.2d 827 (2007), cert. denied, 285 Conn. 907,
908, 942 A.2d 415, 416 (2008). At the time a court is
considering a motion for dismissal for failure to make
out a prima facie case, a petitioner is not required to
overcome any of the respondent’s defenses. Although
a determination of the truthfulness of a statement is a
question of fact for the trier, a trial court would act
‘‘improperly [if] it made findings of fact at this stage
instead of taking the plaintiff’s evidence . . . as true.’’
Gambardella v. Apple Health Care, Inc., 86 Conn. App.
842, 851 n.6, 863 A.2d 735 (2005). We can only speculate
as to what the habeas court’s factual findings and legal
conclusions would have been had it not been required
to review the petitioner’s case in the light most favor-
able to him.15 In addition, the cessation of the trial
prevented the respondent from presenting his case.16
A trial court’s normal assessment of a case prior to
rendering its decision is never based on a view of the
plaintiff’s evidence in only the most favorable light,
but rather, is based on a review of all the evidence
introduced by each party. In conducting such review,
the trial court determines what weight to give specific
items of evidence, including deciding which testimony
to believe and which testimony not to believe. The basis
for a court’s dismissal of a case under Practice Book
§ 15-8 can never be presumed equivalent to the result
that would be achieved after a consideration of a case
fully tried on its merits. Thus, it has been uniformly
determined that when an appellate court determines
that a trial court improperly granted a motion for dis-
missal pursuant to Practice Book § 15-8, the appropriate
remedy is to remand the case for a new trial. Thomas
v. West Haven, 249 Conn. 385, 387, 734 A.2d 535 (1999)
(trial court improperly dismissed plaintiff’s case for
failing to make out prima facie case and remanded for
new trial), cert. denied, 528 U.S. 1187, 120 S. Ct. 1239,
146 L. Ed. 2d 99 (2000); Lapointe v. Commissioner of
Correction, supra, 113 Conn. App. 404 (habeas case
remanded to habeas court for further proceedings after
reversal, in part, of judgment of dismissal under Prac-
tice Book § 15-8); F.E. Crandall Disposal, Inc. v. Led-
yard, 141 Conn. App. 442, 455, 62 A.3d 544 (2003)
(judgment of dismissal for failure to make out prima
facie case of fraud reversed and case remanded for
new trial).
The judgment is reversed and the case is remanded
for a new trial solely on the petitioner’s claim, set forth
in his amended petition, that his trial counsel rendered
ineffective assistance by failing to advise him ade-
quately with regard to the state’s pretrial plea offer.
In this opinion the other judges concurred.
1
Practice Book § 15-8 provides in relevant part: ‘‘If, on the trial of any
issue of fact in a civil matter tried to the court, the plaintiff has produced
evidence and rested, a defendant may move for judgment of dismissal, and
the judicial authority may grant such motion if the plaintiff has failed to
make out a prima facie case . . . .’’
2
This court’s opinion in the petitioner’s direct appeal provides a full
description of the facts that the jury reasonably could have found at trial.
See State v. McMillion, 128 Conn. App. 836, 17 A.3d 1165, cert. denied, 302
Conn. 903, 23 A.3d 1243 (2011).
3
The petitioner filed a subsequent habeas petition on October 21, 2011,
arising from the same underlying criminal trial. That petition involved a
claim of ineffective assistance of appellate counsel on direct appeal. On
April 13, 2012, the habeas court, Solomon, J., granted the petitioner’s motion
to consolidate the two petitions under one controlling docket number. On
May 3, 2012, the petitioner filed the operative second amended petition,
which incorporated the ineffective assistance of appellate counsel claim in
the second count. The habeas court dismissed the second count on Novem-
ber 6, 2012. That dismissal is not a subject of this appeal.
4
During cross-examination of the petitioner, the respondent suggested
that the state’s file contained information that the pretrial plea offer was
actually offered by the trial court, and that the terms of that offer encom-
passed a ten year prison sentence, suspended after service of five years,
followed by a period of probation. The petitioner, however, denied any
recollection that the plea offer included a split sentence. Although the
respondent’s question is not evidence, it nevertheless suggests that had the
habeas trial not ended with a judgment of dismissal, the respondent might
have presented testimony that the terms of the plea offer differed from the
petitioner’s recollection and that a trial judge was willing to accept a plea
agreement that contemplated five years incarceration. In the statement of
issues in his brief to this court, the petitioner claimed ineffective assistance
of counsel regarding advice as to ‘‘the state’s (and/or the court’s) plea
offer . . . .’’
5
Although the record does not reveal what charge or charges the purported
plea offer encompassed, the petitioner was originally charged, tried, and
convicted on a sole count of assault in the first degree pursuant to § 53a-
59 (a) (1).
General Statutes § 53a-59 (b) provides in relevant part: ‘‘Assault in the
first degree is a class B felony provided . . . any person found guilty under
subdivision (1) of subsection (a) shall be sentenced to a term of imprison-
ment of which five years of the sentence imposed may not be suspended
or reduced by the court . . . .’’
6
Initially, the respondent moved to dismiss at the close of the petitioner’s
case. When the habeas court questioned the appropriate characterization
of his motion, however, the respondent offered it as a motion for a directed
verdict. We agree with both the respondent and the petitioner that because
habeas trials are civil actions and are tried to the court and not a jury, it
is more appropriate to move to dismiss pursuant to Practice Book § 15-8
at the close of a petitioner’s case. See Grant v. Commissioner of Correction,
121 Conn. App. 295, 299, n.2, 995 A.2d 641 (as habeas trial is without jury,
motion for directed verdict would be more accurately presented as motion
for dismissal for failure to make out prima facie case under Practice Book
§ 15-8), cert. denied, 297 Conn. 920, 996 A.2d 1192 (2010); see also Young
v. Bridgeport, 135 Conn. App. 699, 705 n.7, 42 A.3d 514 (2012) (treating
motion for directed verdict in accordance with substance as opposed to
label and noting challenge to prima facie case properly raised as motion to
dismiss pursuant to Practice Book § 15-8).
In addition, Practice Book § 23-29 provides in relevant part: ‘‘The judicial
authority may, at any time, upon its own motion or upon motion of the
respondent, dismiss the petition, or any count thereof, if it determines
that . . .
‘‘(5) any other legally sufficient ground for dismissal of the petition exists.’’
7
See footnote 6 of this opinion.
8
The habeas court also ‘‘directed [a] verdict’’ with regard to the petitioner’s
other allegations of trial counsel’s ineffectiveness, agreeing with the respon-
dent that the petitioner had failed to meet his burden of establishing that
additional witnesses or investigation would have benefited the defense at
trial. The petitioner has not challenged the habeas court’s ruling as to these
other allegations of ineffectiveness and, therefore, the resolution of these
grounds is not at issue in this appeal. See Sotomayor v. Commissioner of
Correction, 135 Conn. App. 15, 18 n.1, 41 A.3d 333, cert. denied, 305 Conn.
903, 43 A.3d 661 (2012).
9
The respondent, however, does not concede that the evidence presented
by the petitioner would require a habeas court, sitting as the ultimate fact
finder, to grant the petitioner habeas relief. The respondent’s concession
in this appeal has no bearing on the habeas court’s subsequent analysis of
either deficient performance or prejudice upon retrial.
10
There is no legal distinction between the probative value of direct versus
circumstantial evidence, and a petitioner can rely on either to prove his
case. Greene v. Commissioner of Correction, 123 Conn. App. 121, 132–33,
2 A.3d 29, cert. denied, 298 Conn. 929, 5 A.3d 489 (2010), cert. denied sub
nom. Greene v. Arnone, U.S. , 131 S. Ct. 2925, 179 L. Ed. 2d 1248 (2011).
11
As noted previously, there was a suggestion by the respondent, during
the cross-examination of the petitioner, that a trial judge had offered a plea
arrangement that required the petitioner to serve ten years, suspended after
five years of incarceration. See footnote 4 of this opinion.
12
The petitioner’s third issue on appeal is, ‘‘Did the habeas court err when
it failed to find that the petitioner’s trial counsel was ineffective when he
failed to correctly, meaningfully, properly, adequately, timely and effectively
advise the petitioner as to the state’s [and/or the court’s plea offer] and the
ramifications of rejecting that offer and going to trial?’’ We do not resolve
this issue on its merits because, as fully discussed in this opinion, the proper
remedy in this case is to remand the case for a new habeas trial.
13
The petitioner argues, without citation to any authority, that because
the habeas court made no mention of its assessment of his credibility, it
should be assumed that the court found him credible. This argument is not
persuasive in light of the specific requirement that a court, in ruling on a
motion to dismiss for failure to make out a prima facie case, must accept
the petitioner’s testimony, as well as his other evidence, as true, and is
required to draw every reasonable inference in the petitioner’s favor. See
Gambardella v. Apple Health Care, Inc., 86 Conn. App. 842, 846, 863 A.2d
735 (2005). The petitioner also contends, again without citation to legal
authority, that a remand for a new habeas trial is prejudicial to him because
the respondent had a preview of his case during the initial hearing and, as
a result, the respondent will now be better prepared to defend his petition.
This is true of every case on appeal that is remanded for a new trial. It
could just as easily be said that the respondent is now prejudiced because
the petitioner has a second opportunity to present his case and to refine
and improve its presentation. In addition, as previously noted, in the proceed-
ings on remand, the court is bound to apply the Ebron standard to the
petitioner’s ineffective assistance of counsel claim.
14
Although we agree with the petitioner that no law requires a habeas court
to definitively articulate whether a petitioner’s or other witness’ testimony
is credible or incredible, such findings are often integral to habeas trial
courts’ decisions.
15
For example, portions of the petitioner’s testimony might possibly raise
questions as to his credibility: his stated inability to recall events due to a
medical condition, his professed lack of understanding of the plea bargaining
process despite numerous prior convictions, and his admission that although
he was unhappy with trial counsel’s advice on the purported five plea year
offer and requested new counsel prior to the commencement of his jury
trial, he never complained to the trial court that the plea offer had not been
adequately explained to him.
16
Practice Book § 15-8 also provides that ‘‘[t]he defendant may offer evi-
dence in the event the motion is not granted, without having reserved the
right to do so and to the same extent as if the motion had not been made.’’
The rule does not contemplate that the making of such a motion bars the
moving party from ever presenting a defense.