Mahon v. Commissioner of Correction

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 DAMON MAHON v. COMMISSIONER OF
CORRECTION
(AC 36161)
DiPentima, C. J., and Sheldon and Norcott, Js.
Argued November 20, 2014—officially released May 12, 2015

(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
Vishal K. Garg, with whom, on the brief, was Damon
A. R. Kirschbaum, for the appellant (petitioner).
Brett R. Aiello, special deputy assistant state’s attor-
ney, with whom, on the brief, were Gail P. Hardy,
state’s attorney, and Jo Anne Sulik, supervisory assis-
tant state’s attorney, for the appellee (respondent).
 Opinion

SHELDON, J. The petitioner, Damon Mahon, appeals
from the judgment of the habeas court, Cobb. J., denying
his amended petition for a writ of habeas corpus, chal-
lenging his conviction of sexual assault in the first
degree in violation of General Statutes § 53a-70 (a) (1),
sexual assault in the first degree as an accessory in
violation of General Statutes §§ 53a-70 (a) (1) and 53a-
8, conspiracy to commit sexual assault in the first
degree in violation of General Statutes §§ 53a-70 (a) (1)
and 53a-48 (a), sexual assault in the second degree in
violation of General Statutes § 53a-71 (a) (1), accessory
to risk of injury to a child in violation of General Statutes
§§ 53-21(a) (1) and (2) and 53a-8, kidnapping in the
second degree in violation of General Statutes § 53a-94
(a), and conspiracy to commit kidnapping in the second
degree in violation of General Statutes §§ 53a-94 (a)
and 53a-48 (a). On appeal, the petitioner claims that
the habeas court improperly rejected his claim of inef-
fective assistance of counsel. Specifically, the petitioner
claims that the habeas court improperly concluded that
he was not prejudiced by his trial counsel’s allegedly
deficient advice during pretrial plea negotiations.1 We
affirm the judgment of the habeas court.
The following factual and procedural history is neces-
sary to our resolution of the petitioner’s appeal. In 2004,
following a jury trial, the petitioner was convicted and
sentenced to thirty-five years of incarceration, sus-
pended after eighteen years, followed by a ten year
period of probation. This court affirmed the petitioner’s
conviction on direct appeal. See State v. Mahon, 97
Conn. App. 503, 905 A.2d 678, cert. denied, 280 Conn.
930, 909 A.2d 958 (2006). On October 2, 2009, the peti-
tioner filed a pro se petition for a writ of habeas corpus,
collaterally attacking the judgment of conviction. On
February 7, 2012, the petitioner, represented by
appointed counsel, filed the amended petition at issue
in this appeal, in which he alleged that he was denied
his constitutional right to effective assistance of counsel
as a result of his trial counsel’s deficient performance.
The petitioner alleged that his trial counsel failed to
counsel him adequately about the advisability of
accepting the state’s plea offer. More specifically, the
petitioner claimed that his trial counsel ‘‘failed to under-
stand the nature of the risk of injury to a minor charge
. . . [c]ounsel did not inform the petitioner that—even
if the jury acquitted him of all other charges—he still
faced exposure to a ten year sentence for risk of injury
alone.’’ The petitioner claimed that but for his counsel’s
deficient advice, he would have accepted the plea offer,
forgone trial and received a more favorable sentence.
A trial on the habeas petition was held on April 23,
2012. The petitioner presented testimony from his trial
counsel, Attorney Nicholas Cardwell, the prosecutor in
the petitioner’s criminal trial, Herbert Carlson, and the
petitioner’s aunt, Michelle Mahon. The petitioner also
testified. On August 16, 2013, the habeas court issued
a written memorandum of decision denying the petition
for a writ of habeas corpus. In its decision, the court
found that the petitioner had failed to establish any
prejudice resulting from Cardwell’s representation. On
the basis of the evidence presented at the habeas trial,
the court found the following facts:
‘‘Prior to trial, the parties engaged in plea negotia-
tions. . . . The state had a strong case against the peti-
tioner as both principal and accessory in the
commission of the victim’s sexual assault based on the
eyewitness testimony of the victim, who knew the [peti-
tioner] and testified that he and his codefendant sexu-
ally assaulted her, another eyewitness who saw the
victim and assailants together, the petitioner’s state-
ment, which placed him at the scene of the assault
and detailed his activities, and evidence from the car,
including semen found on the backseat. The petitioner’s
exposure on the charges was approximately 100 years.
‘‘The final offer to the charge of sexual assault in the
first degree, offered in September, 2003, and agreed to
by the pretrial judge and the state, was twelve years
incarceration, suspended after six years, followed by
probation. On October 14, 2003, the petitioner rejected
the offer on the record. Despite the rejection, the court
gave the petitioner two additional weeks to further con-
sider the offer and discuss it with his family. The notes
in the state’s attorney’s file reflect that the petitioner,
who was a citizen of Jamaica, rejected the offer because
he would be deported if he accepted it. The petitioner
would not accept a plea of more than six months incar-
ceration.
‘‘The petitioner’s defense was that although he was
present when the victim was assaulted, he did not have
intercourse or any contact with her. The petitioner
claimed that the victim consented to having intercourse
with his codefendant, and that he did not participate
or aid in his codefendant’s actions.
‘‘The petitioner’s theory of his defense was consistent
with the petitioner’s statement to the police, in which
he stated the following. The petitioner was driving his
car with the codefendant in the vehicle when they saw
the victim, who they knew, walking down the street.
The petitioner asked the victim if she wanted a ride,
and she said she did, and got in the car. After stopping
at the victim’s cousin’s house, the petitioner and the
codefendant asked the victim, who was thirteen years
old, if she and her boyfriend had had sex. The petitioner
drove the car to a secluded area, and the codefendant
got in the backseat with the victim. The petitioner got
out of the car and, standing on the passenger side of
the car, watched his codefendant have intercourse with
the victim and saw him ejaculate in the car. The peti-
tioner had his erect penis outside of his pants during
this time, in a way that the victim could see it. The
petitioner did not have intercourse with the victim. The
petitioner and codefendant then brought the victim
home.’’
The court further stated that ‘‘[b]ased on the credible
evidence at the habeas trial, the court finds that the
petitioner has failed to prove prejudice as to his claim.
In particular, the petitioner has failed to prove that it
is reasonably probable that the petitioner would have
accepted the plea offer, but for counsel’s actions.
Despite the fact that he faced serious charges and the
state had a very strong case against him that included
the eyewitness testimony of the victim, who knew him,
and faced potential exposure of 100 years, the petitioner
rejected the plea offer of twelve years incarceration,
suspended after six years, followed by probation. The
court does not credit the petitioner’s testimony that
had Attorney Cardwell advised regarding the risk of
injury charge or the ten year exposure it carried, he
would have accepted the plea offer. Rather, the court
finds that the reason the petitioner rejected the plea
offer was his concern that he would be deported if
he was convicted of the sexual assault charge. The
petitioner asserted his right to a trial in an attempt to
avoid deportation and remain in the United States, not
because he received deficient advice from his counsel.’’
On the basis of these facts, the court determined that
the petitioner had failed to prove he was prejudiced by
Cardwell’s allegedly deficient performance, and thus
concluded that the petitioner could not prevail on his
ineffective assistance of counsel claim. Thereafter, the
habeas court granted the petition for certification to
appeal, and this appeal followed.
On appeal, the petitioner challenges the court’s deter-
mination that he was not denied the effective assistance
of counsel. The petitioner argues that his trial counsel,
Cardwell, was incompetent, in that he failed to recog-
nize, or to advise the petitioner, that the petitioner’s
signed statement to the police, admitting to being pre-
sent at the time of the assault and exposing his penis
to the thirteen year old victim, was ‘‘compelling evi-
dence’’ in support of a conviction of risk of injury to a
child.2 Thus, he claims, the defense theory at trial—
that the victim engaged in consensual sex with his code-
fendant while the petitioner watched with his erect
penis exposed—was no defense at all, and not a viable
alternative to the plea offer. He claims that had he been
advised properly as to the nature of the risk of injury
charge, he would have accepted the state’s plea offer,
forgone trial, and avoided the greater sentence imposed
thereafter. Accordingly, he argues, the habeas court
erred in determining that he rejected the plea offer to
avoid deportation. We are not persuaded.
As a preliminary matter, we set forth the standard
of review and legal principles governing ineffective
assistance of counsel claims. ‘‘The habeas court is
afforded broad discretion in making its factual findings,
and those findings will not be disturbed unless they are
clearly erroneous. . . . Historical facts constitute a
recital of external events and the credibility of their
narrators. . . . Accordingly, [t]he habeas judge, as the
trier of facts, is the sole arbiter of the credibility of
witnesses and the weight to be given to their testimony.
. . . The application of the habeas court’s factual find-
ings to the pertinent legal standard, however, presents
a mixed question of law and fact, which is subject to
plenary review.’’ (Internal quotation marks omitted.)
Thomas v. Commissioner of Correction, 141 Conn.
App. 465, 470, 62 A.3d 534, cert. denied, 308 Conn. 939,
66 A.3d 881 (2013).
‘‘A criminal defendant is constitutionally entitled to
adequate and effective assistance of counsel at all criti-
cal stages of criminal proceedings. . . . This right
arises under the sixth and fourteenth amendments to
the United States constitution and article first, § 8, of
the Connecticut constitution. . . . It is axiomatic that
the right to counsel is the right to the effective assis-
tance of counsel. . . . The United States Supreme
Court, long before its recent decisions in Missouri v.
Frye, U.S. , 132 S. Ct. 1399, 182 L. Ed. 2d 379
(2012), and Lafler v. Cooper, U.S. , 132 S. Ct.
1376, 182 L. Ed. 2d 398 (2012), recognized that the two
part test articulated in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), applies
to ineffective assistance of counsel claims arising out of
the plea negotiation stage.’’ (Citation omitted; internal
quotation marks omitted.) Barlow v. Commissioner of
Correction, 150 Conn. App. 781, 792, 93 A.3d 165 (2014).
‘‘A claim of ineffective assistance of counsel consists
of two components: a performance prong and a preju-
dice prong. To satisfy the performance prong . . . the
petitioner must demonstrate that his attorney’s repre-
sentation was not reasonably competent or within the
range of competence displayed by lawyers with ordi-
nary training and skill in the criminal law.’’ (Internal
quotation marks omitted.) Thomas v. Commissioner
of Correction, supra, 141 Conn. App. 471. ‘‘Pretrial nego-
tiations implicating the decision of whether to plead
guilty is a critical stage in criminal proceedings . . .
and plea bargaining is an integral component of the
criminal justice system and essential to the expeditious
and fair administration of our courts. . . . For counsel
to provide effective assistance, he must adequately
investigate each case to determine relevant facts. . . .
This court has held that [b]ecause a defendant often
relies heavily on counsel’s independent evaluation of
the charges and defenses, the right to effective assis-
tance of counsel includes an adequate investigation of
the case to determine facts relevant to the merits or to
the punishment in the event of conviction.’’ (Citations
omitted; internal quotation marks omitted.) Dennis v.
Commissioner of Correction, 134 Conn. App. 520, 531,
39 A.3d 799 (2012).
‘‘To show prejudice from ineffective assistance of
counsel where a plea offer has lapsed or been rejected
because of counsel’s deficient performance, defendants
must demonstrate a reasonable probability they would
have accepted the earlier plea offer had they been
afforded effective assistance of counsel. Defendants
must also demonstrate a reasonable probability the plea
would have been entered without the prosecution can-
celing it or the trial court refusing to accept it, if they
had the authority to exercise that discretion under state
law. To establish prejudice in this instance, it is neces-
sary to show a reasonable probability that the end result
of the criminal process would have been more favorable
by reason of a plea to a lesser charge or a sentence of
less prison time.’’ Missouri v. Frye, supra, 132 S. Ct.
1409; see also Ebron v. Commissioner of Correction,
307 Conn. 342, 357, 53 A.3d 983 (2012) (to show preju-
dice in lapsed plea case, petitioner must establish: ‘‘[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 condition-
ally accepted the plea agreement if it had been pre-
sented to the court’’), cert. denied sub nom. Arnone v.
Ebron, U.S. , 133 S. Ct. 1726, 185 L. Ed. 2d
802 (2013).
To prevail on a claim of ineffective assistance of
counsel, both prongs of the Strickland test must be
satisfied. Thomas v. Commissioner of Correction,
supra, 141 Conn. App. 471. Accordingly, the habeas
court ‘‘can find against a petitioner, with respect to a
claim of ineffective assistance of counsel, on either the
performance prong or the prejudice prong . . . .’’ Id.
At the habeas trial, Attorney Carlson, the prosecutor
in the petitioner’s criminal trial, testified regarding the
plea offer. Carlson testified that the petitioner was first
represented by Attorney Carlton Hume, with whom he
initially engaged in the plea negotiations. Carlson testi-
fied that he had made a notation in his file reflecting
his conversations with Hume, wherein he had written
that the petitioner ‘‘could not or would not take a plea if
it included more than six months of actual incarceration
because he would be deported.’’ Aside from that nota-
tion, Carlson could not recall any other discussions
concerning the petitioner’s reasons for rejecting the
plea offer.
The petitioner testified that he had understood that
acceptance of the plea offer would result in his deporta-
tion. The petitioner claimed, however, that deportation
was not a factor in his decision to reject the plea offer.
On that subject, he testified that, although he did not
want to be deported, it ‘‘[d]idn’t really matter’’ to him
because he had grown up in Jamaica, and thus he would
be able to have contact with and support from his family
even if he were deported. The petitioner further testified
that Cardwell did not explain the risk of injury charge
to him or inform him that he could be convicted of that
charge even if the jury believed that he did not have
intercourse with the victim. He claimed that Cardwell
had advised him that he had a winnable case. He further
claimed that had he understood the charges and the
strength of the evidence against him, he would have
accepted the plea offer.
Cardwell also testified at the habeas trial. Cardwell
could not recall his conversations with the petitioner
regarding the plea offer, but he testified that it is his
usual practice to advise his clients concerning their
charges and their sentencing exposure in the event of
an unfavorable outcome at trial. He also testified that
it was his belief that the sexual assault charge against
the petitioner was central to the jury’s determination,
because, in his view, if the jury disbelieved the victim’s
account of the incident, the petitioner ‘‘might have a
favorable result’’ at trial.
In considering this testimony, the habeas court found
that ‘‘Attorney Cardwell . . . never told the petitioner
that the case was ‘beatable’ or guaranteed a favorable
result.’’ The court noted that it found Cardwell’s testi-
mony to be credible and persuasive. The court did not
credit the petitioner’s testimony that had he been
advised as to the risk of injury charge, and his sentenc-
ing exposure on that charge, that he would have
accepted the plea offer. Rather, the court found that
the petitioner rejected the plea offer because he was
concerned that he would be deported if he accepted it.
In light of this evidence, the court concluded that the
petitioner had failed to prove that he would have
accepted the plea offer but for the alleged deficiency
of his counsel’s advice.
‘‘The habeas court is afforded broad discretion in
making its factual findings, and those findings will not
be disturbed unless they are clearly erroneous.’’ (Inter-
nal quotation marks omitted.) Hardison v. Commis-
sioner of Correction, 152 Conn. App. 410, 423, 98 A.3d
873 (2014). ‘‘It is well established that a reviewing court
is not in the position to make credibility determinations.
. . . This court does not retry the case or evaluate the
credibility of the witnesses. . . . Rather, we must defer
to the [trier of fact’s] assessment of the credibility of
the witnesses based on its firsthand observation of their
conduct, demeanor and attitude.’’ (Internal quotation
marks omitted.) Lewis v. Commissioner of Correction,
117 Conn. App. 120, 126, 977 A.2d 772, cert. denied, 294
Conn. 904, 982 A.2d 647 (2009).
The petitioner claims that he rejected the plea as a
result of Cardwell’s advice, and thus the court erred in
concluding that he did so to avoid deportation. The
court, however, heard the petitioner’s testimony to that
effect and did not credit it. Because the petitioner’s
claim is squarely based on a rejection of the court’s
determination on an issue of credibility, he cannot pre-
vail.3 See id. On the basis of our review of the record,
we conclude that the court’s factual findings and legal
conclusions are supported by the record. We therefore
conclude that the court did not err in concluding that the
petitioner failed to prove prejudice under the Strickland
test. Accordingly, we cannot conclude that the habeas
court erred in denying the petition for a writ of
habeas corpus.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The petitioner also claims that his trial counsel’s performance during
the pretrial plea negotiations fell below objectively reasonable standards.
We do not address the performance prong of Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), on appeal because
the habeas court did not address the performance of the petitioner’s counsel;
see Small v. Commissioner of Correction, 286 Conn. 707, 723 n.8, 946 A.2d
1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481,
172 L. Ed. 2d 336 (2008); nor was the habeas court required to do so. ‘‘[A]
court need not determine whether counsel’s performance was deficient
before examining the prejudice suffered by the defendant as a result of the
alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim
on the ground of lack of sufficient prejudice . . . that course should be
followed.’’ Aillon v. Meachum, 211 Conn. 352, 362, 559 A.2d 206 (1989),
quoting Strickland v. Washington, supra, 697; King v. Commissioner of
Correction, 73 Conn. App. 600, 602–603, 808 A.2d 1166 (2002) (‘‘[b]ecause
both prongs of the Strickland test must be established for a habeas petitioner
to prevail, a court may dismiss a petitioner’s claim if he fails to meet either
prong’’), cert. denied, 262 Conn. 931, 815 A.2d 133 (2003).
2
General Statutes (Rev. to 2001) § 53-21 (a) provides in relevant part:
‘‘Any person who (1) wilfully or unlawfully causes or permits any child
under the age of sixteen years to be placed in such a situation that the life
or limb of such child is endangered, the health of such child is likely to be
injured or the morals of such child are likely to be impaired, or does any
act likely to impair the health or morals of any such child . . . shall be
guilty of a class C felony.’’
3
The petitioner also argues that the habeas court’s finding, as recited in
its memorandum of decision, that he would not accept a plea of more than
six months incarceration, was based on unreliable hearsay evidence and
that it reflects a misinterpretation of immigration law, which mandates the
deportation of any person convicted of an aggravated felony. Thus, the
petitioner claims, the court’s ultimate conclusion as to his ‘‘mental state’’
and rejection of the plea offer is clearly erroneous. The argument lacks
merit. First, the petitioner did not object to the introduction of the challenged
evidence at trial and, thus, the court was free to rely upon it. Second, the
petitioner himself testified that he believed acceptance of the plea offer
would result in deportation and that he did not want to be deported. It is
immaterial whether he or anyone else may have believed that a six month
sentence would exempt him from that fate.