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STATE OF CONNECTICUT v. DARDIAN CELAJ
(AC 37291)
Gruendel, Prescott and Bear, Js.
Argued January 7—officially released March 15, 2016
(Appeal from Superior Court, judicial district of
Ansonia-Milford, Markle, J. [trial]; Iannotti, J.; [plea;
motion to vacate plea; judgment].)
Stephan E. Seeger, with whom, on the brief, was Igor
Kuperman, for the appellant (defendant).
Rita M. Shair, senior assistant state’s attorney, with
whom was Kevin D. Lawlor, state’s attorney, for the
appellee (state).
Opinion
GRUENDEL, J. The defendant, Dardian Celaj, appeals
from the judgment of the trial court denying his motion
to vacate his guilty plea. He claims that the court abused
its discretion in so doing. We affirm the judgment of
the trial court.
The defendant is an Albanian national who sexually
assaulted an employee of a nightclub he owned in Derby
on March 2, 2012.1 The following day, he was arrested
and charged with three counts of sexual assault in the
first degree in violation of General Statutes § 53a-70 (a)
(1)2 and one count of unlawful restraint in the first
degree in violation of General Statutes § 53a-95 (a). The
defendant pleaded not guilty to the charges. Over the
next two years, the defendant rejected multiple plea
offers from the state.
A court trial commenced on April 22, 2014. Following
the testimony of two police officers and the complain-
ant, the defendant conferred with his trial counsel,
Attorney Donald J. Cretella, Jr., during a recess. In light
of the complainant’s testimony, Cretella advised the
defendant to accept a plea agreement offered by the
state. Shortly thereafter, the defendant did exactly that,
pleading guilty to one count of sexual assault in the
first degree pursuant to the Alford doctrine.3
At the plea hearing, the court canvassed the defen-
dant concerning his plea. During that canvass, the
defendant indicated that he had ‘‘understood all the
conversations’’ with Cretella that led up to his decision
to plead guilty, and that he was satisfied with Cretella’s
advice. The defendant further acknowledged that he
had not been forced to enter his plea by anyone and
that the rationale for his plea was to avert a more severe
sentence. With respect to possible immigration conse-
quences stemming from his plea, the court stated: ‘‘Do
you understand if you are not a citizen of the United
States, the plea of guilty could result in deportation or
removal from the United States, exclusion from admis-
sion to the United States, and denial of naturalization
pursuant to the laws of the United States? Do you under-
stand that, sir?’’ The defendant responded affirmatively.
The court then asked Cretella if he had discussed ‘‘all
that’’ with the defendant; Cretella replied, ‘‘We have,
Your Honor.’’ Following the canvass, the court accepted
the defendant’s plea as ‘‘knowingly and voluntarily
made with the assistance of competent counsel . . . .’’
On July 25, 2014, the defendant, now represented by
Attorney Stephan E. Seeger, filed a motion to vacate
his guilty plea. In that motion, the defendant argued
that Cretella had failed to properly advise him of the
immigration consequences of the plea. Specifically, he
alleged that Cretella rendered ineffective assistance of
counsel by advising him that any ‘‘immigration conse-
quences would not be automatic’’ and that he ‘‘had no
immediate danger of being deported’’ as a result of
his plea. The defendant thus maintained that he ‘‘was
affirmatively misadvised, and did not enter his plea
knowingly, intelligently, and voluntarily.’’
The defendant appeared before the court on Septem-
ber 22, 2014, for sentencing. At the outset of that pro-
ceeding, the court first conducted an evidentiary
hearing on the defendant’s motion to vacate his guilty
plea. The only witness who testified at that hearing was
the defendant, who stated that, at the time he entered
his plea, his ‘‘understanding was that there [were] no
consequences as far as immigration is concerned
. . . .’’ The defendant acknowledged that he had multi-
ple conversations with Cretella over a span of two years
regarding various plea offers by the state. The defendant
further testified that ‘‘[e]very time we met, since the
first time,’’ he discussed the possibility of deportation
with Cretella. The defendant also admitted that he was
a six time convicted felon who had prior experience
with plea canvasses.4 With respect to notice that a plea
of guilty could result in possible deportation, the defen-
dant testified that ‘‘every time I have come in [to court,
I was told that there is a] possibility for deportation. I
have heard that over and over, yes.’’5
During cross-examination, the defendant was asked
why he did not raise any objection at the April 22, 2014
plea hearing when Cretella stated to the court that he
had discussed the immigration consequences of the plea
with him. The defendant answered that he was not in
the right state of mind at that time. Although he testified
that he was ‘‘very nervous [and] very confused’’ during
the plea canvass, the defendant acknowledged that he
never informed the court of his alleged confusion. The
defendant also claimed that he had no recollection of
the court asking Cretella if he had discussed the immi-
gration consequences of the plea with the defendant.
In ruling on the defendant’s motion, the court
described the defendant’s testimony as ‘‘selective’’ and
stated, ‘‘I specifically find it not to be credible.’’ The
court further stated that ‘‘the canvass by the court was
complete, the questions were all asked by the court,
but, more importantly, the questions by the court that
were asked of counsel, if he did his due diligence with
regard to advising his client were asked and answered
and were . . . uncontroverted by [the defendant], he
asked for no time out. He did not indicate that he did
not understand anything. He did not point out that . . .
Cretella did not advise him of anything that was neces-
sary to be advised of. He answered all the questions in
the affirmative . . . with regard to the issue of his time
and ability in understanding the conversations that he
had with . . . Cretella that led up to his full conclusion
to plead guilty to the case.’’ The court also found that
‘‘the obligation of . . . Cretella was . . . clearly met
to me by way of the answers to the question[s] on the
canvass. . . . [F]or the issue of vacating a plea, based
upon the canvass and . . . the noncredible testimony
that this court heard today . . . this would not be the
appropriate forum for the court . . . to have this plea
vacated.’’ Accordingly, the court denied the motion to
vacate the guilty plea and thereafter sentenced the
defendant to a term of fourteen years incarceration,
with a mandatory minimum of two years, and six years
of special parole subject to special conditions. This
appeal followed.
On appeal, the defendant claims that the court abused
its discretion in denying his motion to vacate his guilty
plea predicated on the allegedly ineffective assistance
of counsel. We disagree.
‘‘A guilty plea, once accepted, may be withdrawn only
with the permission of the court. . . . The court is
required to permit the withdrawal of a guilty plea upon
proof of any ground set forth in Practice Book § [39-
27]. . . . Whether such proof is made is a question
for the court in its sound discretion, and a denial of
permission to withdraw is reversible only if that discre-
tion has been abused.’’ (Internal quotation marks omit-
ted.) State v. Gundel, 56 Conn. App. 805, 812, 746 A.2d
204, cert. denied, 253 Conn. 906, 753 A.2d 941 (2000).
In applying the abuse of discretion standard, this court
is obligated to indulge ‘‘every reasonable presumption
in favor of upholding’’ the judgment of the trial court.
State v. Annulli, 309 Conn. 482, 491, 71 A.3d 530 (2013).
Our Supreme Court generally has ‘‘required that a
claim of ineffective assistance of counsel must be raised
by way of habeas corpus, rather than by direct appeal
. . . .’’ (Internal quotation marks omitted.) State v.
Vega, 259 Conn. 374, 385, 788 A.2d 1221, cert. denied,
537 U.S. 836, 123 S. Ct. 152, 154 L. Ed. 2d 56 (2002).
Practice Book § 39-27 (4) nonetheless ‘‘provides an
explicit exception to this general rule . . . and allows
a defendant to withdraw a guilty plea after its accep-
tance if the plea resulted from the denial of effective
assistance of counsel . . . .’’ (Internal quotation marks
omitted.) State v. Turner, 267 Conn. 414, 426–27, 838
A.2d 947, cert. denied, 543 U.S. 809, 125 S. Ct. 36, 160 L.
Ed. 2d 12 (2004). To prevail on such a claim, a defendant
‘‘must satisfy two requirements . . . . First, he must
prove that the assistance was not within the range of
competence displayed by lawyers with ordinary training
and skill in criminal law . . . . Second, there must
exist such an interrelationship between the ineffective
assistance of counsel and the guilty plea that it can be
said that the plea was not voluntary and intelligent
because of the ineffective assistance.’’ (Internal quota-
tion marks omitted.) State v. Gay, 108 Conn. App. 211,
217, 947 A.2d 428, cert. denied, 288 Conn. 913, 954 A.2d
186 (2008). ‘‘[I]rrespective of whether a defendant pro-
ceeds by way of habeas corpus or direct appeal, our
review is the same, and the burden remains on the
defendant to produce an adequate record so that an
appellate court may ascertain whether counsel’s perfor-
mance was ineffective.’’ State v. Turner, supra, 427.
We conclude that the defendant has not met that
burden. Notably, the defendant did not call Cretella as
a witness during the evidentiary hearing on his motion
to vacate his plea. Although the defendant testified at
that hearing that Cretella incorrectly apprised him of
the immigration consequences of his guilty plea, it
remains that the court expressly rejected that testi-
mony. It is axiomatic that the court, as trier of fact,
was free to do so, particularly when ‘‘the state has
vigorously contested the force of that testimony by
cross-examination.’’ (Internal quotation marks omit-
ted.) State v. Morelli, 293 Conn. 147, 160, 976 A.2d 678
(2009); see also State v. DeMarco, 311 Conn. 510, 521
n.4, 88 A.3d 491 (2014) (‘‘the trial court has discretion
to reject even uncontested evidence’’ because it ‘‘is
uniquely well situated to make determinations of wit-
ness credibility’’ [internal quotation marks omitted]);
State v. Roseboro, 221 Conn. 430, 437, 604 A.2d 1286
(1992) (trial court entitled to reject testimony and infer-
ences offered on behalf of defendant). As an appellate
body, this court cannot reevaluate the credibility of
testimony. ‘‘In a case tried before a court, the trial judge
is the sole arbiter of the credibility of the witnesses
and the weight to be given to their testimony.’’ (Internal
quotation marks omitted.) State v. Miranda, 260 Conn.
93, 110, 794 A.2d 506 (2000). We refuse to disturb that
credibility determination.
The defendant thus failed to furnish any credible
evidence to substantiate his allegation of ineffective
assistance of counsel. This case, therefore, is distin-
guishable from Padilla v. Kentucky, 559 U.S. 356, 130
S. Ct. 1473, 176 L. Ed. 2d 284 (2010). In Padilla, the
United States Supreme Court held that the right to effec-
tive assistance of counsel mandated by the sixth amend-
ment to the United States constitution requires a
criminal defense attorney to advise a defendant
‘‘whether [a guilty] plea carries a risk of deportation.’’
Id., 374. Recognizing that ‘‘[i]mmigration law can be
complex,’’ the court explained that ‘‘[t]here will, there-
fore, undoubtedly be numerous situations in which the
deportation consequences of a particular plea are
unclear or uncertain. The duty of the private prac-
titioner in such cases is more limited. When the law is
not succinct and straightforward . . . a criminal
defense attorney need do no more than advise a nonciti-
zen client that pending criminal charges may carry a
risk of adverse immigration consequences. But when
the deportation consequence is truly clear, as it was in
this case, the duty to give correct advice is equally
clear.’’ (Footnote omitted.) Id., 369. At the same time,
the court emphasized that ‘‘[s]urmounting [the] high
bar [set by Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] is never an easy
task’’; id., 371; and noted that, absent evidence to the
contrary, ‘‘[w]e should . . . presume that counsel sat-
isfied their obligation to render competent advice at the
time their clients considered pleading guilty.’’ Id., 372.
Because the defendant did not furnish any credible
evidence at the evidentiary hearing to substantiate his
claim that Cretella failed to properly advise him of the
immigration consequences of his guilty plea, he cannot
demonstrate that Cretella rendered ineffective assis-
tance of counsel. The court, therefore, did not abuse
its discretion in denying the defendant’s motion to
vacate his guilty plea.
The judgment is affirmed.
In this opinion the other judges concurred.
1
At the defendant’s plea hearing, the state’s attorney detailed the complain-
ant’s account of the assault, stating in relevant part: ‘‘[A]fter a party . . .
at the club, the complainant . . . remained behind by herself in order to
clean up the club . . . . When [the defendant] arrived back at the club, he
then attempted to and did, in fact, engage in some consensual kissing with
the complainant which then turned violent and physical. [The complainant]
was led over by her hair to a nearby bench/seating area within the club.
She was then bent over and forcibly sexually assaulted, this defendant anally
penetrating her with his penis on several occasions. She stated that on
numerous occasions during the entire sexual assault she was begging, plead-
ing for him to stop, and the defendant, in a highly intoxicated state, did not
abide by those requests and continued the sexual assault for some time
until he was finished, then she left when he passed out.’’ At sentencing, the
trial court opined that ‘‘having presided over these types of cases for a
period of eighteen years, [this case is] one of the worst sexual assaults that
I have ever seen on the record.’’
2
General Statutes § 53a-70 (a) provides in relevant part: ‘‘A person is
guilty of sexual assault in the first degree when such person (1) compels
another person to engage in sexual intercourse by the use of force against
such other person . . . or by the threat of use of force against such other
person . . . which reasonably causes such person to fear physical injury
to such person . . . .’’
3
‘‘Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed.
2d 162 (1970), a criminal defendant is not required to admit his guilt . . .
but consents to being punished as if he were guilty to avoid the risk of
proceeding to trial. . . . A guilty plea under the Alford doctrine is a judicial
oxymoron in that the defendant does not admit guilt but acknowledges that
the state’s evidence against him is so strong that he is prepared to accept
the entry of a guilty plea nevertheless.’’ (Internal quotation marks omitted.)
Johnson v. Commissioner of Correction, 285 Conn. 556, 558 n.2, 941 A.2d
248 (2008).
4
The defendant testified that he previously had pleaded guilty to a number
of felonies before the United States District Court for the Southern District
of New York.
5
During the hearing on the motion to vacate the plea, the court specifically
asked the defendant whether he was ‘‘familiar with the issue of deportation
prior to the date you pleaded guilty in this court.’’ The defendant
answered affirmatively.