CLINTON S.* v. COMMISSIONER OF CORRECTION
(AC 38530)
Keller, Mullins and Harper, Js.
Syllabus
The petitioner, who had been convicted of sexual assault in the first degree
and sexual assault in the third degree, sought a writ of habeas corpus
claiming that his defense counsel had rendered ineffective assistance
by failing to adduce certain evidence at his criminal trial, which he
alleged caused him to plead guilty under the Alford doctrine during jury
deliberations following that trial. At his criminal trial, defense counsel
sought to challenge the credibility of the victim, who was the defendant’s
stepdaughter, regarding her motivation to fabricate the allegations. In
his petition for a writ of habeas corpus, the petitioner alleged that
defense counsel had failed to present evidence that the victim had
disclosed the assault to a witness, G, only after G told the victim that
the petitioner, who was a registered sex offender, would go to jail if he
had touched the victim inappropriately. Moreover, the petitioner alleged
that defense counsel failed to adequately investigate and present evi-
dence of his employment history and that of M, the victim’s mother,
which he claimed would have revealed that he had no opportunity to
assault the victim at the time and place she claimed. The habeas court
denied the petition and denied the petition for certification to appeal,
from which the petitioner appealed to this court. Held:
1. The habeas court did not abuse its discretion in denying the petition
for certification to appeal on the basis of defense counsel’s failure to
introduce evidence of the conversation between the victim and G, the
petitioner having failed to demonstrate that defense counsel’s perfor-
mance was deficient in that regard; the decision to not present the
evidence of the conversation between G and the victim was a matter
of sound trial strategy, as defense counsel had successfully moved to
exclude evidence of the petitioner’s criminal history and his status as
a registered sex offender and introducing evidence of the victim’s conver-
sation with G would have opened the door to the jury hearing that
damaging evidence, and this court declined to second guess that strate-
gic decision.
2. The petitioner failed to demonstrate that the issues that he raised on
appeal concerning defense counsel’s alleged failure to investigate and
present evidence concerning his or M’s work history were debatable
among jurists of reason or raised questions that deserved encouragement
to proceed further; contrary to the petitioner’s assertion that he would
not have pleaded guilty had the evidence of his work history been
presented at trial because the evidence would have undermined the
victim’s claim that the assaults happened ‘‘all of the time,’’ there was
ample evidence before the jury that the petitioner had innumerable
opportunities to be alone with the victim, and evidence of the petitioner’s
employment history would have confirmed rather than refuted that
evidence, as the alleged assaults occurred during divers dates within a
broad timeframe and, accordingly, defense counsel’s performance was
not deficient; although the habeas court misstated the applicable preju-
dice standard when determining whether he was prejudiced by defense
counsel’s failure to produce evidence of M’s employment records, the
habeas court properly made the determination that that evidence would
not have changed the outcome of the petitioner’s criminal trial had the
jury finished its deliberations, in light of M’s testimony, which the habeas
court found to be credible, that the petitioner had numerous opportuni-
ties to be alone with the victim.
Argued March 9—officially released July 18, 2017
(Appeal from Superior Court, judicial district of
Tolland, Oliver, J.)
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, and tried to the court, Oliver, J.; judgment
denying the petition; thereafter, the court denied the
petition for certification to appeal, and the petitioner
appealed to this court. Appeal dismissed.
Vishal K. Garg, for the appellant (petitioner).
Marjorie Allen Dauster, senior assistant state’s attor-
ney, with whom, on the brief, were Patrick J. Griffin,
state’s attorney, and Adrienne Russo, deputy assistant
state’s attorney, for the appellee (respondent).
Opinion
MULLINS, J. The petitioner, Clinton S., appeals fol-
lowing the denial of his petition for certification to
appeal from the judgment of the habeas court denying
his amended petition for a writ of habeas corpus. On
appeal, the petitioner claims that the habeas court
abused its discretion in denying his petition for certifica-
tion to appeal because the record established that his
criminal trial counsel had rendered ineffective assis-
tance by (1) failing to present evidence of an alternative
exculpatory explanation for the allegations made by
the victim and (2) failing to investigate adequately and
present evidence of the employment records of the
petitioner and his wife, M. Additionally, in connection
with the claim regarding M.’s employment records, the
petitioner claims that the habeas court applied the
wrong standard with respect to whether he was preju-
diced by counsel’s allegedly deficient performance. We
conclude that the court did not abuse its discretion in
denying the petition for certification to appeal. Accord-
ingly, we dismiss the appeal.
The record discloses the following relevant facts. The
petitioner was charged with several offenses, including
sexual assault in the first degree in violation of General
Statutes § 53a-70 (a) (1) and sexual assault in the third
degree in violation of General Statutes § 53a-72a (a)
(1). The victim, who M’s daughter and the petitioner’s
stepchild, alleged that the petitioner sexually assaulted
her between July, 2003, and January, 2005. She claimed
that the assaults occurred when she arrived home from
school around 2:45 p.m. and that it happened ‘‘basically
all the time.’’ The victim stated that, during the relevant
time period, the petitioner was the only one home and
that, if her siblings were home, the petitioner would
lock them in a bedroom and tell them not to come out
until told to do so.
The victim reported the sexual assaults to Luz Garcia.
The victim and Garcia met through the New Haven
Police Department’s youth program, for which Garcia
was the coordinator. On January 24, 2006, the victim
and Garcia engaged in a conversation in which the
victim disclosed to Garcia that the petitioner had sexu-
ally assaulted her. Garcia told the victim that the peti-
tioner was a registered sex offender and that if the
petitioner ever touched her inappropriately, he would
go to jail. Garcia reported the abuse to the police.
At trial, the petitioner was represented by Attorneys
Scott Jones and Tejas Bhatt. He elected a jury trial.
Trial commenced on July 23, 2009. Evidence closed on
July 28, 2009. Then, on July 31, 2009, the third day of
jury deliberations and before the jury had reached a
verdict, the petitioner decided to enter a guilty plea
under the Alford1 doctrine to the charges of sexual
assault in the first degree and sexual assault in the
third degree.
In response to questions by the trial court, the peti-
tioner stated that he understood that he could not
revoke his plea, that he was satisfied with his represen-
tation, and that he was pleading guilty voluntarily. When
asked by the trial court one final time whether he was
sure that he wanted to plead guilty, the petitioner
responded, ‘‘Your Honor, I don’t have a choice.’’ In
response, the trial court stated, ‘‘You don’t have a choice
because you’re afraid the jury is [going to] come back
and convict you. . . . No one is forcing you, right?’’
The petitioner responded, ‘‘Nobody’s forcing me, Your
Honor.’’ The trial court then asked, ‘‘You don’t have a
choice because you’re between a rock and hard place
[and] you’re taking this as a way out, right?’’ The peti-
tioner answered, ‘‘That’s right.’’ After accepting the peti-
tioner’s plea, the court sentenced him to a total effective
sentence of twenty years incarceration, execution sus-
pended after fifteen years, followed by ten years pro-
bation.
On January 20, 2015, the petitioner filed an amended
petition for a writ of habeas corpus, in which he alleged
numerous ways in which his trial counsel had rendered
ineffective assistance. The only claims relevant to this
appeal, however, are the petitioner’s claims that his
trial counsel rendered ineffective assistance by failing
‘‘to adequately present an alternative innocent explana-
tion for the [victim’s] allegations of sexual abuse,’’ fail-
ing to ‘‘investigate and present evidence concerning
the petitioner’s employment records,’’ and failing ‘‘to
investigate and present evidence concerning [M.’s]
employment records.’’ On October 13, 2015, the habeas
court denied the amended petition. The petitioner then
filed a petition for certification to appeal, which the
habeas court denied. This appeal followed. Additional
facts will be set forth as necessary.
On appeal, the petitioner claims that the habeas court
abused its discretion in denying his petition for certifica-
tion to appeal because the record established that his
trial counsel had rendered ineffective assistance pri-
marily in two ways. First, the petitioner claims that his
trial counsel rendered ineffective assistance by failing
to present evidence of the conversation between the
victim and Garcia. He argues that as a result of that
conversation, the victim learned from Garcia that the
petitioner could go to jail if he inappropriately touched
her. The petitioner claims that evidence of this conver-
sation would have supported the alternative exculpa-
tory explanation that the victim fabricated the
allegations of sexual assault only after she learned from
Garcia that he could be incarcerated for touching her
inappropriately.
Second, the petitioner claims that his trial counsel
rendered ineffective assistance by failing to investigate
adequately and present evidence of the employment
records of the petitioner and M. Specifically, he argues
that these records would have undermined the victim’s
allegations and credibility by showing that the petition-
er’s opportunity to be alone with the victim was either
limited or nonexistent. With respect to M.’s employment
records in particular, the petitioner also claims that
the habeas court applied the wrong prejudice standard
when it applied the Strickland standard instead of the
Strickland-Hill standard. We are not persuaded.
We first set forth our standard of review. ‘‘Faced with
the habeas court’s denial of certification to appeal, a
petitioner’s first burden is to demonstrate that the
habeas court’s ruling constituted an abuse of discretion.
. . . A petitioner may establish an abuse of discretion
by demonstrating that the issues are debatable among
jurists of reason . . . [the] court could resolve the
issues [in a different manner] . . . or . . . the ques-
tions are adequate to deserve encouragement to pro-
ceed further. . . . The required determination may be
made on the basis of the record before the habeas court
and the applicable legal principles. . . .
‘‘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 reasonably determined that the peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria . . . adopted by this court for
determining the propriety of the habeas court’s denial
of the petition for certification. Absent such a showing
by the petitioner, the judgment of the habeas court must
be affirmed. . . .
‘‘[As it relates to the petitioner’s substantive claims]
[o]ur standard of review of the habeas court’s judgment
on ineffective assistance of counsel claims is well set-
tled. In a habeas appeal, this court cannot disturb the
underlying facts found by the habeas court unless they
are clearly erroneous, but our review of whether the
facts as found by the habeas court constituted a viola-
tion of the petitioner’s constitutional right to effective
assistance of counsel is plenary.’’ (Internal quotation
marks omitted.) Mourning v. Commissioner of Correc-
tion, 169 Conn. App. 444, 448–49, 150 A.3d 1166 (2016),
cert. denied, 324 Conn. 908, 152 A.3d 1246 (2017).
‘‘[I]n order to determine whether the petitioner has
demonstrated ineffective assistance of counsel [when
the conviction resulted from a guilty plea], we apply the
two part test annunciated by the United States Supreme
Court in Strickland and Hill. . . . In Strickland, which
applies to claims of ineffective assistance during crimi-
nal proceedings generally, the United States Supreme
Court determined that the claim must be supported by
evidence establishing that (1) counsel’s representation
fell below an objective standard of reasonableness, and
(2) counsel’s deficient performance prejudiced the
defense because there was a reasonable probability
that the outcome of the proceedings would have been
different had it not been for the deficient performance.
Strickland v. Washington, [466 U.S. 668, 688, 694, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. . . . Under the
test in Hill, in which the United States Supreme Court
modified the prejudice standard of the Strickland test
for claims of ineffective assistance when the conviction
resulted from a guilty plea, the evidence must demon-
strate that there is a reasonable probability that, but
for counsel’s errors, [the petitioner] would not have
pleaded guilty and would have insisted on going to trial.
Hill v. Lockhart, [474 U.S. 52, 59, 106 S. Ct. 366, 88
L. Ed. 2d 203 (1985)].’’ (Citations omitted; emphasis
omitted; internal quotation marks omitted.) Johnson v.
Commissioner of Correction, 285 Conn. 556, 575–76,
941 A.2d 248 (2008).
‘‘To satisfy the performance prong under Strickland-
Hill, the petitioner must show that counsel’s represen-
tation fell below an objective standard of reasonable-
ness. . . . A petitioner who accepts counsel’s advice
to plead guilty has the burden of demonstrating on
habeas appeal that the advice was not within the range
of competence demanded of attorneys in criminal
cases. . . . The range of competence demanded is rea-
sonably competent, or within the range of competence
displayed by lawyers with ordinary training and skill
in the criminal law. . . . Reasonably competent attor-
neys may advise their clients to plead guilty even if
defenses may exist. . . . A reviewing court must view
counsel’s conduct with a strong presumption that it
falls within the wide range of reasonable professional
assistance. . . .
‘‘To satisfy the prejudice prong [under Strickland-
Hill], the petitioner must show a reasonable probability
that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.’’ (Inter-
nal quotation marks omitted.) Norton v. Commissioner
of Correction, 132 Conn. App. 850, 854–55, 33 A.3d 819,
cert. denied, 303 Conn. 936, 36 A.3d 695 (2012).
In determining whether the habeas court abused its
discretion in denying the petition for certification to
appeal, we must consider the merits of the petitioner’s
underlying claims. Accordingly, we now turn to the
merits of the petitioner’s claims.
I
The petitioner first claims that trial counsel rendered
ineffective assistance by failing to present evidence of
an alternative exculpatory explanation for the allega-
tions of sexual assault made by the victim. Specifically,
he argues that evidence of the conversation between
the victim and Garcia, wherein the victim disclosed the
sexual assaults, which he claims occurred prior to the
victim’s allegations,2 significantly would have strength-
ened the defense’s theory that the victim was motivated
to make false allegations. Thus, he argues that trial
counsel’s failure to present that evidence was deficient
performance.3 Moreover, the petitioner claims that trial
counsel’s failure to present the evidence prejudiced the
defense because, had the evidence of the conversation
been included, a reasonable probability exists that he
would have been satisfied with trial counsel’s perfor-
mance and would not have pleaded guilty.
The respondent, the Commissioner of Correction,
asserts that trial counsel did not render ineffective assis-
tance.4 Specifically, the respondent argues that trial
counsel’s performance was not deficient because trial
counsel’s decision to not present evidence of the con-
versation between the victim and Garcia was a reason-
able strategic decision. The conversation included
information about the petitioner’s prior sexual assault
convictions and his being a registered sex offender.
Had the conversation been presented, the petitioner
risked the admission of such evidence, which trial coun-
sel determined was highly damaging. Moreover, the
respondent argues that this court cannot resolve
whether trial counsel’s failure to present the conversa-
tion prejudiced the defense because the habeas court
did not make a finding on prejudice.
At the habeas trial, Attorney Jones testified that the
defense’s primary theory was to challenge the credibil-
ity of the victim and highlight the inconsistencies in
her testimony. In support of this theory, trial counsel
argued that the victim was motivated to fabricate the
allegations. Such motivation included her wanting the
petitioner out of the house because they did not get
along, her feeling alienated from her mother’s affection,
her resenting the disciplinary role of the petitioner in the
household, and her responding to an incident between
herself and the petitioner for which she was arrested.
Jones testified that he considered whether the evi-
dence of the conversation would support an argument
that the victim had made the allegations against the
petitioner only after being informed that such allega-
tions would lead to the petitioner’s going to jail. Ulti-
mately though, he decided not to use the evidence
because part of the conversation between the victim
and Garcia involved information related to the petition-
er’s criminal history, particularly to his being a regis-
tered sex offender, which Jones already had excluded
successfully through a motion in limine. Jones opined
that it was too challenging to present evidence only of
Garcia’s telling the victim that the petitioner would go
to jail while at the same time continuing to exclude any
mention of the petitioner’s criminal history. Jones felt
that evidence of the conversation could undermine his
previous efforts to exclude the information because it
came too close to opening the door for the state to get
into evidence the petitioner’s prior criminal history. As
a result, he concluded that it was best not to present
any evidence of the victim’s conversation with Garcia.
Following the close of evidence at the habeas trial,
the court denied the amended petition for a writ of
habeas corpus on the ground that trial counsel’s perfor-
mance was not deficient. The court concluded that
‘‘counsel was aware of the evidence, carefully consid-
ered its value to the defense and made a strategic deci-
sion not to offer it at trial.’’ Specifically, the habeas court
concluded that trial counsel had reasonable strategic
reasons for not offering evidence of the conversation.
The court further concluded that trial counsel thor-
oughly presented alternative evidence to the jury of
motive and bias to support the defense’s theory of an
alternative exculpatory explanation. We agree with the
habeas court and conclude that the petitioner has failed
to demonstrate that trial counsel’s performance was
deficient.
It is clear from the record that the decision to not
introduce evidence of the conversation between the
victim and Garcia was a matter of trial strategy. Trial
counsel did not want the members of the jury to become
aware that the petitioner was a registered sex offender,
which trial counsel deemed as damaging information.
‘‘It is all too tempting for a [petitioner] to second-guess
counsel’s assistance after conviction or adverse sen-
tence, and it is all too easy for a court, examining coun-
sel’s defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel
was unreasonable. . . . A fair assessment of attorney
performance requires that every effort be made to elimi-
nate the distorting effects of hindsight, to reconstruct
the circumstances of counsel’s challenged conduct, and
to evaluate the conduct from counsel’s perspective at
the time. Because of the difficulties inherent in making
the evaluation, a court must indulge a strong presump-
tion that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the [peti-
tioner] must overcome the presumption that, under the
circumstances, the challenged action might be consid-
ered sound trial strategy. . . . [C]ounsel is strongly
presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reason-
able professional judgment.’’ (Internal quotation marks
omitted.) Henderson v. Commissioner of Correction,
104 Conn. App. 557, 571–72, 935 A.2d 162 (2007), cert.
denied, 285 Conn. 911, 943 A.2d 470 (2008).
Simply put, trial counsel made a reasonable strategic
decision that the risk associated with presenting evi-
dence of the conversation was not justified. The defense
already had taken steps through the motion in limine
to prevent the introduction of damaging information
related to the petitioner’s criminal history. After investi-
gating and discussing the advantages and disadvantages
of presenting evidence of the victim’s conversation with
Garcia, trial counsel determined that such evidence
could jeopardize the earlier ruling and potentially lead
to the jury’s learning of the petitioner’s damaging crimi-
nal history. Given the potential risk, trial counsel’s deci-
sion was reasonable. Thus, we decline to second guess
such strategic decisions by trial counsel. See Watson
v. Commissioner of Correction, 111 Conn. App. 160,
171–72, 958 A.2d 782 (counsel’s decision to not intro-
duce investigative report because it would ‘‘invite diffi-
cult questions’’ fell ‘‘within the category of strategic
decisions that our courts consistently refuse to second
guess’’), cert. denied, 290 Conn. 901, 962 A.2d 128
(2008).
We conclude that the habeas court properly deter-
mined that the petitioner’s trial counsel had not per-
formed below an objective standard of reasonableness
with respect to the petitioner’s claim regarding coun-
sel’s failure to present evidence of the conversation
between the victim and Garcia. Accordingly, the habeas
court did not abuse its discretion in denying the petition
for certification to appeal.
II
The petitioner next claims that trial counsel rendered
ineffective assistance by failing to investigate ade-
quately and present evidence of the petitioner’s employ-
ment records and M.’s employment records. The
petitioner argues that trial counsel’s performance was
deficient because such evidence would have supported
the argument that he had almost no opportunity to be
alone with the victim during the relevant time period.
Specifically, the petitioner argues that his employment
records would have demonstrated that during substan-
tial portions of the relevant time period, he was working
when the victim arrived home, thus giving him no oppor-
tunity to be home alone with the victim. Furthermore,
he argues that M.’s employment records would have
demonstrated that, even when the petitioner was home
before 3 p.m., it was not uncommon for M. to be home,
and, therefore, he would have had limited opportunity
to be alone with the victim.
The petitioner also claims that the habeas court
applied the wrong prejudice standard with respect to
its conclusion on M.’s employment records. He argues
that the habeas court improperly applied the Strickland
standard instead of the Strickland-Hill standard. The
petitioner argues that, when applying the correct Strick-
land-Hill standard, a reasonable probability exists that
he would not have pleaded guilty had the employment
records been investigated and presented. He claims that
this evidence would have undermined the victim’s testi-
mony and shown the untruthfulness of her allegations.
The respondent asserts that trial counsel did not ren-
der ineffective assistance. Specifically, the respondent
argues that trial counsel’s performance was not defi-
cient because the employment records of both the peti-
tioner and M. showed that the petitioner had
innumerable opportunities to be alone with the victim.
Moreover, the respondent argues that, although the
habeas court incorrectly stated its conclusion on the
claim regarding M.’s employment records by setting
forth the wrong prejudice standard, it set forth the cor-
rect prejudice standard when it outlined the relevant
law in its memorandum of decision.
The respondent further argues that, as recognized by
the United States Supreme Court in Hill, the prejudice
standard under the Strickland test is very similar to
the prejudice standard under the Strickland-Hill test,
particularly in circumstances where a petitioner claims
a failure to investigate or to discover potentially excul-
patory evidence. The respondent finally argues that the
petitioner has not met the prejudice standard of the
Strickland-Hill test for both of his employment records
claims because, in showing that the petitioner had innu-
merable opportunities to be alone with the victim, the
employment records would have corroborated much
of the victim’s testimony.
The habeas court was presented with evidence of the
following additional facts, which are relevant to the
petitioner’s claim. At the criminal trial,5 M. testified that,
in the beginning of the relevant time period, July, 2004
to January, 2005, she would work from 3 p.m. to 11
p.m. and, therefore, would not be home when the victim
arrived home from school around 2:45 p.m. From June,
2004, to July, 2004, she was on maternity leave. When
M. returned to work, initially her work hours continued
to be 3 p.m. to 11 p.m. Then, in October, 2004, M.’s
schedule changed to 7 a.m. to 3 p.m. After this change
in her schedule, if M. received a ride home from work,
she would arrive home at 3:30 p.m., but, if she rode the
bus, she would not arrive home until 4 p.m.
At the habeas trial, the petitioner testified that he
worked at a Popeye’s restaurant for a month and one-
half beginning in September, 2003. He further testified
that from November, 2003, to March, 2004, he worked
at a Valvoline. The work records presented by the peti-
tioner, however, showed that the petitioner worked at
Valvoline from November, 2003, to January, 2004. The
petitioner also testified that after Valvoline, he was self-
employed as a landscaper, and then he was employed by
Chuck and Eddie’s, an auto parts store, from November,
2004, to February, 2005, where he worked from 7 a.m.
to 5:30 p.m. every day except Sunday. According to the
petitioner, he asked trial counsel to obtain records of his
employment at these various businesses and to speak to
the people with whom he worked because such evi-
dence would have shown that the petitioner was not
at home during the relevant time period. M., however,
testified that during the relevant time period, the peti-
tioner was not working consistently and was mostly
home alone with the victim when M. arrived home
from work.
Jones testified that part of the defense’s strategy was
to present evidence that the petitioner and the victim
were not alone during much of the relevant time period.
Jones further testified, however, that he did not think
that the petitioner’s employment records were going
to help the petitioner because there were significant
amounts of time where the petitioner was not working.
In addition, Jones had difficulty obtaining the petition-
er’s employment records and narrowing down what
records to obtain. With regard to the employment
records of M., Jones testified that even when she began
to work from 7 a.m. to 3 p.m. in October of 2014, whether
she would be home when the victim was home with
the petitioner depended on whether M received a ride
or took the bus.
Following the close of evidence at the habeas trial,
the court denied the amended petition for a writ of
habeas corpus on the ground that trial counsel did not
provide ineffective assistance. With regard to the peti-
tioner’s employment records, the habeas court deter-
mined that the petitioner failed to establish both
deficient performance and prejudice because ‘‘any
employment records would have limited value as the
charging document alleged that the crimes occurring
during divers dates within a broad timeframe’’ and that
the records would have had ‘‘little to no favorable evi-
dentiary value’’ due to the petitioner’s sporadic work
history.
With regard to M.’s employment records, the habeas
court did not make any finding on the performance
prong. Instead, the habeas court determined that the
petitioner failed to establish prejudice. Specifically, the
court determined that the petitioner had not demon-
strated predjudice because M.’s testimony clearly estab-
lished the opposite of what the petitioner contended
the employment records would support, namely, that
he would have had limited opportunity to be alone with
the victim.
‘‘[C]onstitutionally adequate assistance of counsel
includes competent pretrial investigation. . . . How-
ever, counsel need not track down each and every . . .
evidentiary possibility before choosing a defense and
developing it.’’ (Citation omitted; internal quotation
marks omitted.) Thompson v. Commissioner of Correc-
tion, 131 Conn. App. 671, 694, 27 A.3d 86, cert. denied,
303 Conn. 902, 31 A.3d 1177 (2011). ‘‘The burden to
demonstrate what benefit additional investigation
would have revealed is on the petitioner.’’ (Internal
quotation marks omitted.) Norton v. Commissioner of
Correction, supra, 132 Conn. App. 859.
Here, the record supports the habeas court’s conclu-
sion that trial counsel reasonably determined that it was
best not to challenge the victim’s credibility through
the petitioner’s employment records. First, trial counsel
determined that the records were difficult to obtain;
the charging document alleged a broad range of dates,
and trial counsel was unable to narrow down what
employment records to investigate and present. In addi-
tion, the petitioner was self-employed during part of
the relevant time period such that the precise hours he
worked would have been difficult to prove.
Second, trial counsel did not discover information
related to the petitioner’s employment during the rele-
vant time period that would have challenged the victim’s
claim that she was often home alone with the petitioner,
and, therefore, counsel determined that the employ-
ment records would not have supported the defense’s
theory. Even the Valvoline records that were presented
to the habeas court showed that on multiple days the
petitioner left work at 3 p.m. or earlier, which would
have allowed him to be home with the victim after
school. Trial counsel, therefore, determined that the
records did not have any value in supporting the
defense’s argument and instead showed that, at times,
the petitioner could have been home alone with the
victim.
We conclude that the habeas court properly deter-
mined that trial counsel’s decisions regarding the inves-
tigation and presentation of the petitioner’s
employment records at the criminal trial did not render
their performance deficient. Because we agree with the
habeas court that trial counsel’s performance was not
deficient, we need not address the prejudice standard of
the Strickland-Hill test. See Norton v. Commissioner of
Correction, supra, 132 Conn. App. 855. Accordingly, the
habeas court did not abuse its discretion in denying the
petition for certification as to this claim.
Turning now to M.’s employment records, we first
address the petitioner’s claim that the habeas court
applied the wrong standard when assessing whether
trial counsel’s alleged failure to investigate and intro-
duce the employment records of M. prejudiced the
defense.6 We agree with the petitioner that the habeas
court, in its conclusion, set forth the wrong prejudice
standard, phrasing its conclusion using the Strickland
standard instead of the Strickland-Hill standard. In its
memorandum of decision, the habeas court set forth
the following: ‘‘It is well established that this court has
a duty, in deciding prejudice, to focus on the ultimate
outcome, the verdict and sentence, as opposed to
merely a portion of the criminal proceedings. . . .
Here, the petitioner has failed to establish that the con-
tent of the employment records of [M.] would have
resulted in a more favorable result in the trial of his
criminal matter. Accordingly, the petitioner has failed
to prove prejudice.’’
The habeas court, however, earlier in its decision
clearly quoted the correct Strickland-Hill standard
when it set forth the relevant law, which requires the
petitioner to demonstrate that a reasonable probability
exists that, but for counsel’s errors, he would not have
pleaded guilty and, instead, would have insisted on
going to trial; see Hill v. Lockhart, supra, 474 U.S. 59;
Johnson v. Commissioner of Correction, supra, 285
Conn. 576; or, in this case, allow the jury to reach
its verdict. A reasonable probability is a probability
sufficient to undermine the court’s confidence in the
outcome. Norton v. Commissioner of Correction,
supra, 132 Conn. App. 855.
In considering the prejudice standard under Strick-
land-Hill, this court has noted ‘‘that [i]n many guilty
plea cases, the prejudice inquiry will closely resemble
the inquiry engaged in by courts reviewing ineffective
assistance challenges to convictions obtained through
a trial. For example, where the alleged error of counsel
is a failure to investigate . . . the determination
whether the error prejudiced the defendant by causing
him to plead guilty rather than go to trial will depend
on the likelihood that discovery of the evidence would
have led counsel to change his recommendation as to
the plea. This assessment, in turn, will depend in large
part on a prediction whether the evidence likely would
have changed the outcome of a trial.’’ (Emphasis added;
internal quotation marks omitted.) Id.
In the present case, the habeas court, in its prejudice
analysis, determined that M.’s employment records sup-
ported the theory that the petitioner had the opportunity
to be home alone with the victim on numerous occa-
sions. Supporting the habeas court’s conclusion was its
specifically crediting the testimony of M. Indeed, the
court made a finding that M.’s testimony established
that the petitioner would have had the opportunity to
be home alone with the victim ‘‘mostly all of the time’’
because the petitioner was not working consistently,
and M. was working consistently. Thus, the habeas
court found that the employment records likely would
not have changed the outcome of the petitioner’s crimi-
nal trial had the jury finished deliberations, which, as
articulated in Norton, is a central question in determin-
ing whether the petitioner otherwise would have
pleaded guilty. Norton v. Commissioner of Correction,
supra, 132 Conn. App. 855. Accordingly, although the
habeas court incorrectly phrased its conclusion using
the Strickland standard, the fact that the court made
the finding that M.’s employment records would not
have changed the outcome at trial persuades us that the
court’s analysis supported a determination consistent
with the Strickland-Hill standard, and, thus, the court’s
misstatement was not reversible error.
We next address the petitioner’s claim that he was
prejudiced by trial counsel’s failure to investigate and
present M.’s employment records. Following our
Supreme Court precedent, the habeas court chose to
dispose of the petitioner’s claim on the prejudice prong.
‘‘[A] court need not determine whether counsel’s perfor-
mance 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 ineffec-
tiveness claim on the ground of lack of sufficient preju-
dice . . . that course should be followed.’’ (Internal
quotation marks omitted.) Aillon v. Meachum, 211
Conn. 352, 362, 559 A.2d 206 (1989).
The petitioner claims that M.’s employment records
would have challenged the credibility of the victim’s
testimony that the sexual assaults occurred almost all
the time, and, therefore, he would have not pleaded
guilty. Although M.’s employment records would have
established that the sexual assaults did not happen ‘‘all
of the time,’’ because there were times within the rele-
vant time period that M. would have been home, the
records also would have established that M. frequently
was not home during the relevant time period, and,
therefore, the petitioner would have had numerous
opportunities to be alone with the victim. Consequently,
M.’s employment records would have had the effect of
corroborating much of the victim’s testimony, rather
than challenging it. Accordingly, we conclude that the
petitioner has failed to demonstrate that he was preju-
diced by trial counsel’s performance. Because M.’s
employment records appear to corroborate much of
the victim’s testimony, it is not reasonably probable
that, but for trial counsel’s alleged failure to investigate
and present M.’s employment records at the petitioner’s
criminal trial, the petitioner would not have pleaded
guilty.
As a result, we conclude that the habeas court did
not abuse its discretion in denying the petition for certi-
fication to appeal as to this issue. The petitioner has
not demonstrated that the issues he raises on appeal
are debatable among jurists of reason, that the court
could resolve the issues in a different manner, or that
the questions raised deserve encouragement to pro-
ceed further.
The appeal is dismissed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual assault, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
1
North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
2
The evidence presented at the petitioner’s criminal trial did not clearly
establish whether the victim made the allegations of sexual abuse before
or after Garcia told her that the petitioner would go to jail for touching
her inappropriately.
3
The conversation was documented in an investigative report.
4
The respondent also argued that the petitioner explicitly waived any
claim of ineffective assistance of counsel when he explicitly acknowledged
and agreed that, by entering a guilty plea, he would not be able to return
to court, challenge the performance of his attorneys, and withdraw his plea.
On March 8, 2017, however, the respondent withdrew his waiver argument.
5
The criminal trial transcripts were admitted as full exhibits at the
habeas trial.
6
As discussed subsequently in this opinion, the habeas court did not make
a finding as to deficient performance with regard to trial counsel’s failure
to investigate and present M.’s employment records. Rather, the habeas
court found that the petitioner failed to prove that he was prejudiced by
trial counsel’s failure to present M.’s employment records.