Adkins v. Commissioner of Correction

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 DENNIS ADKINS v. COMMISSIONER
OF CORRECTION
(AC 40037)
Sheldon, Keller and Prescott, Js.

Syllabus

The petitioner, who had been convicted on a guilty plea pursuant to the
Alford doctrine of the crime of felony murder, sought a writ of habeas
corpus. At his sentencing hearing, the petitioner’s trial counsel notified
the trial court that, although counsel was unaware of any legal grounds
to do so, the petitioner had indicated to him that he wanted to withdraw
his plea. The trial court noted that there was a reference to the petition-
er’s request in the presentence investigation report and that it had
received a correspondence from the petitioner in which he requested
to withdraw his plea. After the petitioner addressed the court personally
on the matter, the court denied the request, concluding that the petitioner
had not presented the court with a basis on which to permit him to
withdraw his guilty plea. Thereafter, the petitioner brought a habeas
action, claiming, inter alia, that his trial counsel had rendered ineffective
assistance and that he should be permitted to withdraw his guilty plea.
The habeas court rendered judgment denying the habeas petition, and
this court affirmed the judgment. Subsequently, the petitioner filed a
third petition for a writ of habeas corpus, claiming that his trial counsel
had provided ineffective assistance by failing to advise him with respect
to his right to appeal from the trial court’s denial of his oral motion to
withdraw his guilty plea and had deprived him of his right to conflict
free representation at trial because, prior to the date of this guilty plea,
he had filed a grievance complaint against trial counsel. The petitioner
also claimed that his prior habeas counsel had provided ineffective
assistance in the prior habeas action by failing to raise his claims against
trial counsel. Following a hearing at which trial counsel, prior habeas
counsel and the petitioner testified, the habeas court dismissed the
claims against trial counsel because they presented the same ground
for relief that had been considered and denied by the court in the prior
habeas action. The habeas court thereafter concluded that neither claim
against prior habeas counsel had merit and rendered judgment denying
the habeas petition, from which the petitioner, on the granting of certifi-
cation, appealed to this court. Held:
1. The petitioner could not prevail on his claim that the habeas court improp-
erly rejected his claim that his prior habeas counsel rendered ineffective
assistance in the prior habeas action by failing to raise his claim that
trial counsel rendered ineffective assistance by not advising the peti-
tioner with respect to his right to appeal from the denial of his motion
to withdraw his guilty plea: the petitioner was unable to demonstrate
that a nonfrivolous ground for appeal of his motion to withdraw his
guilty plea existed, as the habeas court expressly found that his motion
was not related to ineffective representation by trial counsel or any
misunderstanding by the petitioner but, instead, was based on the fact
that he had changed his mind about the plea, which finding was fatal
to the petitioner’s claim that there were viable grounds to appeal and,
thus, that a rational defendant would have wanted to bring an appeal
to pursue those grounds, and there was no credible evidence to support
the petitioner’s claim that trial counsel should have been aware of a
valid ground on which the petitioner may have based his motion, as the
habeas court made findings of fact that undermined the petitioner’s claim
that nonfrivolous grounds existed and the petitioner did not demonstrate
that those findings lacked support in the evidence; moreover, the peti-
tioner did not demonstrate that, despite the fact that there were not
any nonfrivolous grounds for an appeal, trial counsel had a constitutional
obligation to advise him about his right to appeal, as the evidence,
viewed in its entirety, did not support a finding that the petitioner
reasonably demonstrated to trial counsel that he was interested in bring-
ing an appeal or inquired to any extent about his appellate rights.
2. This court declined to review the petitioner’s unpreserved claim that the
 habeas court improperly rejected his claim that his prior habeas counsel
rendered ineffective assistance by failing to present evidence in support
of his claim that his guilty plea was the result of trial counsel’s ineffective
assistance, as the petitioner did not distinctly raise that claim in his
habeas petition, and, as a result, the habeas court did not expressly rule
on it in its thorough memorandum of decision.
3. The petitioner could not prevail on his claim that the habeas court improp-
erly rejected his claim that his prior habeas counsel rendered ineffective
assistance by failing to claim in the prior habeas action that trial counsel’s
conflict of interest resulted in the petitioner’s guilty plea: although the
petitioner claimed that the habeas court improperly raised sua sponte
the issue of waiver and dismissed his claim on that ground, the court
did not conclude that the petitioner had waived his claim but, rather,
appropriately considered and rejected the petitioner’s claim on its mer-
its, concluding that the waiver doctrine provided additional support for
its determination that the underlying claim against trial counsel was
dubious at best when viewed in light of state and federal authority
concerning what types of claims may be raised following a valid guilty
plea; moreover, the court unambiguously found that the petitioner’s
guilty plea was made knowingly and voluntarily, it explicitly rejected
the petitioner’s argument that his dissatisfaction with trial counsel and
the issues surrounding the filing of his grievance complaint influenced
his decision to plead guilty, and the court, having observed the petitioner
testify about the plea and having assessed the truthfulness of his testi-
mony, was not obligated to accept as true his version of the facts;
accordingly, the court’s factual finding concerning the voluntariness of
the plea was supported by evidence in the record, and this court was
not persuaded that a mistake had been made.
Argued April 10—officially released October 2, 2018

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, Sferrazza, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
Michael W. Brown, assigned counsel, for the appel-
lant (petitioner).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Adrienne Russo, assistant state’s attor-
ney, for the appellee (respondent).
 Opinion

KELLER, J. Following the granting of his petition for
certification to appeal, the petitioner, Dennis Adkins,
appeals from the judgment of the habeas court denying
his amended petition for a writ of habeas corpus. The
petitioner claims that the court improperly rejected his
claim that his prior habeas counsel rendered ineffective
assistance on the basis that he failed (1) to claim that
trial counsel rendered ineffective assistance by failing
to advise the petitioner with respect to his right to
appeal from the denial of his motion to withdraw his
guilty plea, (2) to present evidence in support of the
petitioner’s claim that his guilty plea was the result of
trial counsel’s ineffective assistance, and (3) to claim
that trial counsel’s conflict of interest resulted in the
petitioner’s guilty plea. We affirm the judgment of the
habeas court.
The following undisputed procedural history is rele-
vant to this appeal. The petitioner was arrested and
charged with murder in violation of General Statutes
§ 53a-54 (a), felony murder in violation of General Stat-
utes § 53a-54c, and carrying a pistol without a permit
in violation of General Statutes § 29-35 (a). On April 4,
2000, pursuant to a plea agreement with the state, the
petitioner pleaded guilty under the Alford doctrine1 to
felony murder in violation of § 53a-54c. The petitioner
was represented by Attorney Francis Mandanici.
The prosecutor set forth the factual basis of the plea,
as follows: ‘‘On August 24, 1999, at or about 10:27 p.m.,
in front of 119 Dewitt Street in New Haven, the victim
[in] this case, Rodney Williams, was on the front porch
and a person wearing a mask came down the driveway
and confronted two people standing in the driveway,
one of them a young lady. The person in the mask
grabbed the lady’s chain from around her neck. She
grabbed it back. She and her boyfriend, who were in
the driveway, indicated that the person was wearing a
mask and had a handgun in his hand. According to
witnesses out front, the individual came down the drive-
way with the mask and confronted the victim in this
case, who was standing on the front steps or on the
ground near the front steps, confronted the victim with
a handgun, and the victim came down off the steps and
went toward the assailant and there was a short tussle
during which the assailant fired a series of shots, one
of which hit the victim, Rodney Williams, in the chest
and caused his death.
‘‘During the subsequent investigation, a Calvin Hinton
. . . was interviewed and indicated that he had been
with [the petitioner] earlier that evening. They had
talked about robbing the victim in this case and that
he saw the [petitioner] with a weapon. The [petitioner],
in a subsequent statement, indicated [that] he received
the weapon . . . from Hinton. In any event, Hinton
indicated that he saw the [petitioner] go to the area
where the victim was standing and later saw the [peti-
tioner] run away from the area.
‘‘Subsequently, [the petitioner] was interviewed and
admitted that he and Hinton had talked about [commit-
ting] the robbery, that Hinton had provided him the
gun, that he had gone to the area for the purpose of
committing a robbery of Williams, who they knew to
be a drug dealer, [and] that a struggle ensued and shots
were fired from his gun which struck Williams. [The
petitioner] indicated that he did not intend to kill him,
but that this did occur during the attempted commission
of a robbery. Subsequently, after [the petitioner] was
arrested and [incarcerated,] he admitted to an individ-
ual in the correctional facility that he was responsible
for the shooting and actually detailed the fact that it
occurred during the commission of an attempted
robbery.’’
The prosecutor set forth the details of the plea
agreement. The petitioner was to serve a thirty-five year
term of incarceration and the state agreed to enter
a nolle prosequi with respect to additional charges.
Additionally, the state agreed not to bring charges
against the petitioner for what it considered to be efforts
made by him to seek retribution against a witness. The
trial court, Fasano, J., thoroughly canvassed the peti-
tioner. After finding that the plea was made knowingly
and voluntarily, the court accepted the plea and entered
a finding of guilt.
The petitioner returned before the court, Fasano,
J., on May 26, 2000, for sentencing. At the hearing,
Mandanici indicated that, although he was unaware of
any legal grounds for the request, the petitioner indi-
cated to him that he wanted to withdraw his plea. The
court observed that there was a reference to the peti-
tioner’s request in the presentence investigation report
and that it had received a correspondence from the
petitioner in which he requested to withdraw his plea.
The petitioner addressed the court personally with
respect to his request, indicating that he was not satis-
fied with Mandanici’s representation, Mandanici was
aware that he did not commit the crime, the evidence
that he had confessed to the crime was ‘‘bull shit,’’ and
he believed that he was entitled to ‘‘a lesser charge.’’
The petitioner stated that he was ‘‘not pleading out to
no murder.’’ The court replied that the petitioner
already had pleaded guilty under the Alford doctrine,
that the petitioner had been canvassed thoroughly, and
that the petitioner had not presented the court with a
basis on which to permit him to withdraw his guilty
plea.2 Thereafter, the court sentenced the petitioner in
accordance with the plea agreement that he had
reached with the state.
In 2003, in a prior habeas corpus action, the petitioner
filed an amended petition for a writ of habeas corpus
in which he alleged that Mandanici had rendered inef-
fective assistance and, because of this violation of his
constitutional rights, he should be permitted to with-
draw his guilty plea. Also, relying on what he character-
ized as newly discovered evidence, the petitioner
alleged that he was actually innocent. With respect to
his ineffective assistance of counsel claim, the peti-
tioner alleged that Mandanici had failed to conduct a
proper pretrial investigation, failed to devote sufficient
time to his defense, and failed to withdraw from his
representation of the petitioner.
During the prior habeas action, the petitioner was
represented by Attorney Brian Russell. Following a
hearing, the court, Fuger, J., concluded that the peti-
tioner had failed to demonstrate that Mandanici had
performed deficiently and that even if such a showing
had been made, the petitioner had failed to demonstrate
that he suffered any prejudice as a result of Mandanici’s
acts or omissions. In its memorandum of decision, the
court observed that there were two witnesses to the
murder committed by the petitioner and that the peti-
tioner had provided a confession to the police in which
he revealed his role as the shooter. The court then
stated: ‘‘[T]he petitioner now asserts that he was under
the influence of illegal drugs at the time he made the
statement [to the police], that the statement is false and
that he only did it because he did not want to be labeled
a ‘snitch.’ However, these assertions are not worthy of
belief. Insofar as being under the influence of drugs at
the time the statement was made, there are two factors
that undermine the credibility of this assertion. First,
the petitioner was arrested at about 10 a.m. on Septem-
ber 23, 1999. The statement was taken between 7:46 p.m.
and 8:17 p.m. on that day. According to the petitioner,
he ran from the police and swallowed some unspecified
amount of crack cocaine that he had on him. There has
been no evidence presented to this habeas court that
would allow the court to conclude that a person who
had ingested cocaine would still be under the influence
of that drug nearly ten hours later. Significantly, there
has been no evidence adduced to allow this court to
conclude what, if anything, the ingestion of cocaine
might do to a person’s cognitive abilities. However, it
is more or less colloquially known that the effects of
cocaine are relatively short lived. Second, the testimony
of Detective Sergeant [Joanne] Schaller, who coinciden-
tally has training as an EMT paramedic, is clear that
the petitioner was not exhibiting any outward signs of
drug intoxication, nor did he complain of any illness
or impairment. Moreover, there is some evidence that
the idea to argue intoxication as a means to invalidate
the confession originated with another inmate, Jason
Reese. All of this leads this court to conclude that the
petitioner’s statement attacking his confession is self-
serving and unworthy of belief.’’ (Footnote omitted.)
Moreover, the court rejected the petitioner’s claim
of actual innocence, noting that the petitioner had failed
to submit to the court ‘‘anything even remotely resem-
bling newly discovered evidence.’’ Consequently, the
court denied the amended petition for a writ of habeas
corpus. This court affirmed the judgment of the habeas
court. Adkins v. Commissioner of Correction, 88 Conn.
App. 901, 869 A.2d 279 (2005), cert. denied, 281 Conn.
906, 916 A.2d 48 (2007).
In May, 2016, the petitioner, represented by counsel,
filed a third amended petition for a writ of habeas cor-
pus in the habeas corpus action that underlies the pre-
sent appeal. The amended petition set forth three
counts. In count one, the petitioner alleged that Man-
danici deprived him of his right to effective representa-
tion by failing to advise him with respect to his right
to appeal from the trial court’s denial of his oral motion
to withdraw his guilty plea. He argued that he did not
have a full and fair opportunity to raise this claim in
his prior habeas action.
In count two, the petitioner alleged that Mandanici
deprived him of his right to conflict free representation
at trial because on February 19, 2000, prior to the date
of his plea, he filed a grievance complaint against Man-
danici.3 The petitioner alleged that the filing of the com-
plaint ‘‘completed a total and complete breakdown in
the attorney-client relationship’’ between him and Man-
danici. He argued that his defense ‘‘was adversely
affected by [Mandanici’s] actual conflict of interest’’
because Mandanici failed to communicate with him,
failed to investigate the allegations against him, failed
to zealously advocate for him during plea negotiations,
and failed to advise him with respect to his right to
appeal from the trial court’s denial of his oral motion
to withdraw his guilty plea. The petitioner alleged that
he was prejudiced in that he received a harsher sentence
than he would have received following a trial or an
adequate plea bargaining process. The petitioner
alleged that he did not have a full and fair opportunity
to present this claim in his prior habeas action.
In count three, the petitioner alleged that Russell had
deprived him of his right to the effective assistance of
counsel during the prior habeas action by failing ‘‘to
plead and present evidence and argument’’ in support
of the claims set forth in counts one and two. The
petitioner argued that there was a reasonable probabil-
ity that, but for Russell’s deficient performance, the
result of the petitioner’s prior habeas action would have
been favorable to him.
With respect to the substantive allegations in the
amended petition, the respondent, the Commissioner
of Correction, generally left the petitioner to his proof.
With respect to claims one and two, the respondent
alleged as a special defense that, to the extent that the
petitioner intended to raise these claims as freestanding
claims against trial counsel, they were successive and
should be dismissed. Additionally, with respect to claim
one, the respondent alleged that, absent a showing that
the Appellate Court denied a motion seeking permission
to file a late appeal from the trial court’s denial of
the petitioner’s motion to withdraw his guilty plea, the
petitioner’s claim related to his right to appeal was not
ripe. Also, with respect to claim two, the respondent
alleged as a special defense that the allegations set forth
in claim two were barred by res judicata and collateral
estoppel because they were raised, litigated, and
resolved against the petitioner in the prior habeas
action. Moreover, the respondent alleged that claim two
should be dismissed because it constituted a legally
noncognizable claim of ‘‘cumulative’’ error by trial coun-
sel. Also, the respondent argued that the petitioner was
defaulted from litigating the allegations in claim two
because his conflict with Mandanici was the basis for
his motion to withdraw his guilty plea and, although
he had the opportunity to do so, he failed to appeal
from the trial court’s denial of the motion to withdraw
the guilty plea. The respondent alleged that the peti-
tioner failed to satisfy the cause and prejudice standard
to excuse the default.
In his reply to the return, the petitioner alleged that
claims one and two were not barred by the successive
petition doctrine because, due to Russell’s ineffective
representation during the prior habeas action, he was
deprived of a full and fair opportunity to litigate these
claims in that action. With respect to claim one, the
petitioner alleged that his claim related to his right to
appeal was ripe for adjudication.4 With respect to claim
two, the petitioner alleged that the doctrines of collat-
eral estoppel and res judicata did not apply because
the issues involved had not been litigated in a prior
proceeding. Also, the petitioner alleged that claim two
was not pleaded in a legally deficient manner. Finally,
the petitioner alleged that any procedural default with
respect to claim two was the result of the ineffective
assistance of counsel.
The court, Sferrazza, J., held a trial over the course
of two days, September 1 and October 25, 2016. Among
the evidence presented, the court heard testimony from
Mandanici, Russell, and the petitioner.
On December 7, 2016, the court rendered judgment
denying the amended petition for a writ of habeas cor-
pus. In its thorough memorandum of decision, the court
dismissed the first and second counts of the petition
under Practice Book § 23-29 (3) because they presented
the same ground for relief, namely, ineffective represen-
tation by Mandanici, that Judge Fuger had considered
and denied in the prior habeas action. The court, how-
ever, observed that, in the present action, the petitioner
had the right to assert that Russell had rendered ineffec-
tive representation in the prior habeas action by failing
to claim that Mandanici rendered ineffective represen-
tation because Russell failed to raise the newly raised
claims on which the petitioner presently relies. These
claims are that Mandanici failed to advise him with
respect to his right to appeal from the trial court’s denial
of his motion to withdraw his guilty plea and that,
because the petitioner filed a grievance complaint
against Mandanici prior to the date of the plea, Mandan-
ici had a conflict of interest during his representation
of the petitioner. The court proceeded to analyze the
merits of both of the petitioner’s claims of ineffective
assistance by Russell. After concluding that neither
claim had merit, it denied the habeas petition.5 There-
after, the court granted the petitioner’s petition for certi-
fication to appeal. This appeal followed. Additional
facts will be discussed as necessary.
Before turning to the petitioner’s claims, we set forth
basic principles governing the present appeal. ‘‘The use
of a habeas petition to raise an ineffective assistance
of habeas counsel claim, commonly referred to as a
habeas on a habeas, was approved by our Supreme
Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d
818 (1992). In Lozada, the court determined that the
statutory right to habeas counsel for indigent petition-
ers provided in General Statutes § 51-296 (a) includes
an implied requirement that such counsel be effective,
and it held that the appropriate vehicle to challenge the
effectiveness of habeas counsel is through a habeas
petition. . . . In Lozada, the court explained that [t]o
succeed in his bid for a writ of habeas corpus, the
petitioner must prove both (1) that his appointed habeas
counsel was ineffective, and (2) that his trial counsel
was ineffective. Lozada v. Warden, supra, 223 Conn.
842. As to each of those inquiries, the petitioner is
required to satisfy the familiar two-pronged test set
forth in Strickland v. Washington, [466 U.S. 668, 687,
104 S. Ct. 2052, 80 L. Ed. 2d (1984)]. First, the [petitioner]
must show that counsel’s performance was deficient.
. . . Second, the [petitioner] must show that the defi-
cient performance prejudiced the defense. . . . Unless
a [petitioner] makes both showings, it cannot be said
that the conviction . . . resulted from a breakdown in
the adversary process that renders the result unreliable.
. . . Lozada v. Warden, supra, 223 Conn. 842–43. In
other words, a petitioner claiming ineffective assistance
of habeas counsel on the basis of ineffective assistance
of trial counsel must essentially satisfy Strickland
twice . . . .
‘‘In any case presenting an ineffectiveness claim, the
performance inquiry must be whether counsel’s assis-
tance was reasonable considering all the circum-
stances. . . . Judicial scrutiny of counsel’s
performance must be highly deferential and courts must
indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance; that is, the [petitioner] must overcome the
presumption that, under the circumstances, the chal-
lenged action might be considered sound trial strategy.
. . . [S]trategic choices made after thorough investiga-
tion of law and facts relevant to plausible options are
virtually unchallengeable; [but] strategic choices made
after less than complete investigation are reasonable
precisely to the extent that reasonable professional
judgments support the limitations on investigation.
. . . With respect to the prejudice prong, the petitioner
must establish that if he had received effective represen-
tation by habeas counsel, there is a reasonable probabil-
ity that the habeas court would have found that he
was entitled to reversal of the conviction and a new
trial . . . .
‘‘It is well settled that in reviewing the denial of a
habeas petition alleging the ineffective assistance of
counsel, [t]his court cannot disturb the underlying facts
found by the habeas court unless they are clearly erro-
neous, but our review of whether the facts as found by
the habeas court constituted a violation of the petition-
er’s constitutional right to effective assistance of coun-
sel is plenary.’’ (Citations omitted; internal quotation
marks omitted.) Gerald W. v. Commissioner of Correc-
tion, 169 Conn. App. 456, 463–65, 150 A.3d 729 (2016),
cert. denied, 324 Conn. 908, 152 A.3d 1246 (2017); see
also Toccaline v. Commissioner of Correction, 177
Conn. App. 480, 499, 172 A.3d 821 (describing petition-
er’s burden as ‘‘herculean task’’), cert. denied, 327 Conn.
986, 175 A.3d 45 (2017).
I
First, the petitioner claims that the court improperly
rejected his claim that Russell rendered ineffective
assistance in the prior habeas action in that he failed
to claim that Mandanici rendered ineffective assistance
by failing to advise the petitioner with respect to his
right to appeal from the denial of his motion to withdraw
his guilty plea. We disagree.
The court analyzed this claim, in relevant part, as
follows: ‘‘Between plea and sentencing, on May 26, 2000,
the petitioner expressed his desire to withdraw his
guilty plea to both Attorney Mandanici and the trial
judge in the presentence investigation report . . . and
other material sent directly to the court by the peti-
tioner.
‘‘Before imposing sentence, the trial judge heard the
parties’ positions on this request. Attorney Mandanici
candidly acknowledged that he knew of no legal basis
to grant the petitioner’s request. Attorney Mandanici
related that the petitioner never articulated to him any
reason to withdraw the guilty plea except that the peti-
tioner experienced a change of heart.
‘‘The trial judge inquired of the petitioner as to why
he should permit the petitioner to withdraw his guilty
plea. The petitioner responded by disavowing any
knowledge that he pleaded guilty to murder rather than
a lesser offense and by repudiating his confessions to
the police and admissions to others. The trial court
found that no legitimate basis for the withdrawal of the
guilty plea existed and denied the petitioner’s request.
‘‘Attorney Mandanici never advised the petitioner
about the opportunity to appeal from that denial, and
no appeal was timely initiated. The [Supreme] Court
denied permission to file a late appeal on September
27, 2016, more than sixteen years after the criminal
case concluded.’’
The habeas court stated that the petitioner bore the
burden of proving not only that Mandanici performed
deficiently by failing to advise him with respect to his
right to appeal, but that he suffered prejudice in that
he would have succeeded on appeal and that he would
have been acquitted following a retrial.6
The court stated: ‘‘After consideration of all the evi-
dence adduced, the court finds that the petitioner has
failed to meet his burden of proving, by a preponder-
ance of the evidence, that Attorney Russell was defi-
cient for failing in the first habeas corpus [action] to
raise [a claim related to] Attorney Mandanici’s failure to
advise the petitioner about the possibility of appealing
from the denial of his request to withdraw his plea.
Judge Fasano’s denial of the request was unassailable.
Attorney Mandanici provided no good faith basis to
support that request. The petitioner voiced his com-
plaint that he misunderstood that he [had] pleaded
guilty to felony murder, but the transcript of the plea
canvass refutes that statement.
‘‘The court finds that the petitioner’s request to with-
draw his guilty plea was simply a change of mind.
Reconsideration or regret, standing alone, cannot val-
idly support a motion to withdraw a guilty plea that was
otherwise lawfully entered. [In ruling on the petitioner’s
prior habeas petition] Judge Fuger found ‘the petition-
er’s statement attacking his confession is self-serving
and unworthy of belief’ . . . . This court received no
credible evidence that Attorney Russell could have pre-
sented a stronger case before Judge Fuger to alter
that conclusion.
‘‘No legal expert testified at the habeas trial that Attor-
ney Russell ineffectively represented the petitioner on
that issue or any other issue. The court rules that the
petitioner has failed to demonstrate either prong of the
Strickland standard with respect to Attorney Russell’s
assistance at the first habeas trial. . . . No genuine
infirmity surrounding the guilty plea existed.’’ (Cita-
tion omitted.)
In its evaluation of the merits of an appeal from Judge
Fasano’s ruling, the court observed that the petitioner
failed to demonstrate that any of the grounds as set
forth in Practice Book § 39-277 that would support a
motion to withdraw a guilty plea could be proven. As
the court observed, in light of the petitioner’s represen-
tations, he conceivably could have attempted to demon-
strate under Practice Book § 39-27 (4) that Mandanici
had rendered ineffective assistance that resulted in his
decision to plead guilty. The court observed, however,
that such a claim of ineffective assistance had been
raised before and rejected on its merits by Judge Fuger
in the prior habeas action and that Judge Fuger’s deci-
sion had been affirmed on appeal.
The court stated: ‘‘At the time of his request, the
petitioner bore the burden to present facts sufficient
to persuade the trial court that his guilty plea should
be withdrawn at [that] point in the proceedings . . . .
There was no credible evidence presented at the habeas
trial before this court to support a claim that such proof
was available to Attorney Mandanici at the time the
petitioner sought to withdraw his plea. Consequently,
Attorney Russell had no professional obligation to raise
a claim of ineffective assistance for failing to advise
the petitioner of the possibility of appealing from that
denial of his request because that appeal was very likely
to fail.’’ (Citation omitted; internal quotation marks
omitted.)
In the present appeal, the petitioner argues that
although counsel is not always required to advise a
defendant of his or her right to appeal following a guilty
plea, Mandanici had a duty to advise him that he could
appeal from the denial of his motion to withdraw his
guilty plea. The petitioner argues that his conduct dur-
ing the sentencing hearing demonstrated his interest in
pursuing an appeal. Moreover, the petitioner argues, the
record reflected that he was prejudiced by Mandanici’s
failure because he had several nonfrivolous claims to
raise in an appeal, which included claims with respect
to whether (1) his plea was the result of ineffective
assistance of counsel, (2) the sentencing court should
have appointed him new counsel for purpose of his
motion to withdraw his plea and should have held a
full hearing in connection with his motion to withdraw
his plea, and (3) he did not fully understand the charges
contemplated by the plea agreement. The petitioner
acknowledges that, in addressing Judge Fasano, he did
not articulate a basis for his motion, but he argues that
it was unnecessary for him to do so because he provided
a basis in his correspondence to the court and that, in
denying the motion to withdraw the guilty plea, the
sentencing court failed to address the concerns set forth
therein, namely, that he had not understood the nature
of the plea agreement and that he was dissatisfied with
Mandanici’s representation.
In Ghant v. Commissioner of Correction, 255 Conn.
1, 7–10, 761 A.2d 740 (2000), our Supreme Court, relying
on Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145
L. Ed. 2d 985 (2000), set forth the applicable standard
of review under the federal constitution in the determi-
nation of whether counsel is ineffective in failing to
apprise a defendant of the right to appeal from a guilty
plea. The court stated: ‘‘Roe has clarified the applicable
standard of review under the federal constitution in
the determination of whether counsel is ineffective in
failing to apprise a defendant of the right to appeal from
a guilty plea. The Supreme Court held that, in such a
case, counsel has a constitutional obligation to advise a
defendant of appeal rights when either (1) the defendant
has reasonably demonstrated to counsel his or her inter-
est in filing an appeal, or (2) a rational defendant would
want to appeal under the circumstances. . . .
‘‘The Supreme Court began its decision in Roe with
a review of Strickland v. Washington, supra, 466 U.S.
687, in which the court had held that criminal defen-
dants have a sixth amendment right to ‘reasonably effec-
tive’ legal assistance. Under Strickland, a defendant
claiming ineffective assistance of counsel must demon-
strate that (1) counsel’s representation fell below an
objective standard of reasonableness . . . and (2)
counsel’s deficient performance prejudiced the defen-
dant in that there was a reasonable probability that the
result of the proceeding would have been different. . . .
‘‘The Supreme Court in Roe then further articulated
that ‘this [Strickland] test applies to claims, like [the
petitioner’s in Roe] that counsel was constitutionally
ineffective for failing to file a notice of appeal.’ Roe v.
Flores-Ortega, supra, 528 U.S. 477. ‘[N]o particular set
of detailed rules for counsel’s conduct can satisfactorily
take account of the variety of circumstances faced by
defense counsel. . . . Rather, courts must judge the
reasonableness of counsel’s conduct on the facts of
the particular case, viewed as of the time of counsel’s
conduct . . . and [j]udicial scrutiny of counsel’s per-
formance must be highly deferential . . . .’ ’’ (Citations
omitted.) Ghant v. Commissioner of Correction, supra,
255 Conn. 7–8.
‘‘The court in Roe began its analysis with the first
part of the Strickland test and enunciated the rule to
be applied to ineffective assistance claims concerning
the failure to take an appeal. ‘In those cases where the
defendant neither instructs counsel to file an appeal
nor asks that an appeal not be taken, we believe the
question whether counsel has performed deficiently by
not filing a notice of appeal is best answered by first
asking . . . whether counsel in fact consulted with the
defendant about an appeal. We employ the term ‘‘con-
sult’’ to [mean] . . . advising the defendant about the
advantages and disadvantages of taking an appeal, and
making a reasonable effort to discover the defendant’s
wishes. If counsel has consulted with the defendant
. . . [c]ounsel performs in a professionally unreason-
able manner only by failing to follow the defendant’s
express instructions with respect to an appeal. . . . If
counsel has not consulted with the defendant, the court
must in turn ask a second, and subsidiary, question:
whether counsel’s failure to consult with the defendant
itself constitutes deficient performance. . . . And,
while States are free to impose whatever specific rules
they see fit to ensure that criminal defendants are well
represented . . . the Federal Constitution imposes
one general requirement: that counsel make objectively
reasonable choices.’ . . . Roe v. Flores-Ortega, supra,
528 U.S. 478–79 . . . .
‘‘Rejecting a bright line test that would require coun-
sel always to consult with a defendant regarding an
appeal, the court in Roe stated: ‘We . . . hold that
counsel has a constitutionally imposed duty to consult
with the defendant about an appeal when there is reason
to think either (1) that a rational defendant would want
to appeal (for example, because there are nonfrivolous
grounds for appeal), or (2) that this particular defendant
reasonably demonstrated to counsel that he was inter-
ested in appealing. In making this determination, courts
must take into account all the information counsel knew
or should have known. . . . Although not determina-
tive, a highly relevant factor in this inquiry will be
whether the conviction follows a trial or a guilty plea,
both because a guilty plea reduces the scope of poten-
tially appealable issues and because such a plea may
indicate that the defendant seeks an end to judicial
proceedings. Even in cases when the defendant pleads
guilty, the court must consider such factors as whether
the defendant received the sentence bargained for as
part of the plea and whether the plea expressly reserved
or waived some or all appeal rights. Only by considering
all relevant factors in a given case can a court properly
determine whether a rational defendant would have
desired an appeal or that the particular defendant suffi-
ciently demonstrated to counsel an interest in an
appeal.’ . . . [Id.] 480.
‘‘The second part of the Strickland test, as enunciated
in Roe, requires the defendant to show prejudice from
counsel’s deficient performance. . . . ‘[T]o show prej-
udice [when counsel fails to apprise a defendant of his
or her appellate rights], a defendant must demonstrate
that there is a reasonable probability that, but for coun-
sel’s deficient failure to consult with him about an
appeal, he would have timely appealed.’ Id., 484. The
court further articulated that ‘whether a given defen-
dant has made the requisite showing will turn on the
facts of a particular case. . . . [E]vidence that there
were nonfrivolous grounds for appeal or that the defen-
dant in question promptly expressed a desire to appeal
will often be highly relevant in making this determina-
tion.’ . . . Id., 485.’’ (Citations omitted; emphasis in
original; footnote omitted.) Ghant v. Commissioner of
Correction, supra, 255 Conn. 8–10.8
Having set forth the court’s findings of fact and the
legal standard governing the present claim, we turn to
an examination of the merits of the petitioner’s claim
that Mandanici rendered ineffective assistance by fail-
ing to advise him concerning his right to appeal and
that Russell rendered ineffective assistance by failing
to raise such a claim in the prior habeas action. In the
present case, there is no factual dispute that Mandanici
did not consult with the petitioner concerning his appel-
late rights following the denial of the motion to with-
draw the guilty plea. In determining, under Strickland’s
first prong, whether Mandanici had a constitutional
obligation to advise the petitioner concerning his right
to appeal, we first consider in our plenary review
whether the issues arising from the denial of the motion
to withdraw the guilty plea had such a degree of merit
that a rational defendant would have wanted to appeal.
In arguing that Russell rendered ineffective assis-
tance during the prior habeas trial, the petitioner argues
that the record supports a finding that a rational defen-
dant would have appealed from Judge Fasano’s denial
of his motion to withdraw his guilty plea. He asserts
that, setting aside what he expressly stated to Judge
Fasano when he was asked why he wanted to withdraw
his plea,9 he had alerted the court in a correspondence
that his plea was the result of ineffective assistance by
Mandanici and that he did not understand the charges
contemplated by the plea agreement.10 At the time that
Judge Fasano addressed the petitioner and Mandanici,
Judge Fasano stated that he was aware of the petition-
er’s correspondence. Assuming that, in addition to what
the petitioner stated at the sentencing hearing when
Judge Fasano afforded him an opportunity to explain
his motion, Judge Fasano should have considered the
content of any correspondence he had received from
the petitioner concerning the motion, the petitioner is
unable to demonstrate that the grounds for the motion
to withdraw his plea were nonfrivolous in nature.
Previously in this opinion, we set forth in detail the
habeas court’s findings of fact. The habeas court
expressly found that the petitioner’s motion to with-
draw his guilty plea was not related to ineffective repre-
sentation by Mandanici or any misunderstanding by the
petitioner. It is significant that, in its role as fact finder,
the habeas court found that the petitioner’s motion to
withdraw his guilty plea reflected that he simply had
changed his mind about the plea. The court found that
there was ‘‘no credible evidence’’ to support the peti-
tioner’s claim that Mandanici should have been aware
of a valid ground on which the petitioner may have
based his motion. Consequently, the habeas court found
that Russell was not deficient for failing to raise a claim
related to Mandanici’s assistance. The habeas court
made findings of fact that undermine the petitioner’s
claim that nonfrivolous grounds existed to support an
appeal from Judge Fasano’s ruling. The petitioner has
not demonstrated that the court’s findings of fact lack
support in the evidence.
 The petitioner also argues that a nonfrivolous basis
to appeal existed because Judge Fasano did not appoint
new counsel to litigate the motion to withdraw the
guilty plea or conduct an adequate hearing into the
motion.11 Regardless of whether the petitioner in the
present case was afforded a full evidentiary hearing or
new counsel to assist him in presenting his motion,
he was afforded a full opportunity to demonstrate the
merits of his motion during the present habeas trial.
Specifically, the habeas trial afforded him a full opportu-
nity to demonstrate that a reasonable defendant in his
position would have appealed because nonfrivolous
grounds for an appeal existed. After examining the evi-
dence presented by the petitioner, however, the habeas
court found that he was unable to demonstrate that
a nonfrivolous ground for appeal existed because the
motion was based not on a defect in Mandanici’s repre-
sentation or confusion about the nature of the charge,
but on the fact that the petitioner had changed his mind.
The petitioner cannot dispute that such a change of
heart concerning the plea is an invalid basis upon which
to base a motion to withdraw a plea. This finding is
fatal to the petitioner’s claim that there were viable
grounds to appeal and, thus, that a rational defendant
would have wanted to bring an appeal to pursue
these grounds.
Next, in determining whether Mandanici had a consti-
tutional obligation to advise the petitioner concerning
his right to appeal, we consider under our plenary stan-
dard of review whether the evidence as a whole reflects
that the petitioner had reasonably demonstrated to
Mandanici that he was interested in appealing from
Judge Fasano’s denial of his motion to withdraw the
guilty plea. As we stated previously in this opinion, the
habeas court did not analyze the petitioner’s claim in
light of the currently recognized standard as set forth
in Roe and did not set forth any findings of fact with
respect to this distinct issue. See footnote 6 of this
opinion. As a reviewing court, we must rely on the
factual findings of the habeas court unless they are not
supported by the record. Despite the absence of specific
factual findings with respect to this issue, we may exam-
ine the evidence to determine whether the petitioner
presented evidence on which the habeas court reason-
ably could have found that such a showing had been
made. If such evidence is lacking, the court’s failure to
make any relevant findings, under the Roe standard,
with respect to the issue of whether the petitioner dem-
onstrated an interest in appealing is harmless.
At the present habeas trial, the petitioner presented
the transcripts from his prior habeas proceeding in
2003. The petitioner’s testimony at that prior proceeding
does not reflect that he had asked Mandanici about his
right to appeal from the denial of his motion to withdraw
his guilty plea or had otherwise indicated to Mandanici
that he was interested in bringing an appeal. Likewise,
during Mandanici’s testimony at the prior habeas trial,
Mandanici did not testify that the petitioner had asked
him about his right to appeal or had otherwise stated
that he was interested in bringing an appeal. Rather,
Mandanici testified that he did not believe that there
were grounds for bringing the motion to withdraw the
guilty plea and that the petitioner wanted to withdraw
his plea ‘‘because he had changed his mind.’’
During his testimony at the present habeas trial, the
petitioner explained the reasons why he wanted to with-
draw his plea and his view that he did not want to
proceed to trial under Mandanici’s representation. He
stated that, by the time of the sentencing hearing, he
had filed a grievance complaint against Mandanici and
that his relationship with Mandanici had deteriorated.
He testified that prior to his appearance at the sentenc-
ing hearing, he had not even discussed his desire to
withdraw his plea with Mandanici. The petitioner testi-
fied that, after the sentencing hearing and the court’s
denial of his motion, he did not speak with Mandanici.
He testified that Mandanici did not advise him that he
could appeal from Judge Fasano’s ruling, and, in fact,
he and Mandanici did not have any discussions about
the topic of an appeal. He testified that he was unaware
that he could appeal from that ruling but that he ‘‘most
likely’’ would have appealed if he knew that he could
do so. At the present habeas trial, Mandanici testified
that he could not recall whether he spoke with the
petitioner following the sentencing hearing.
The petitioner broadly asserts in his appellate brief
that his ‘‘actions’’ at the sentencing hearing ‘‘reasonably
demonstrated that he would be interested in pursuing
an appeal.’’ (Internal quotation marks omitted.) Our
careful review of the transcript of the sentencing hear-
ing, however, does not reflect that the petitioner made
any reference to an appeal or, in lay terms, bringing any
type of challenge to Judge Fasano’s ruling. Although,
at the hearing, the petitioner communicated with the
court with respect to the reasons why he believed that
he should be permitted to withdraw his guilty plea and
expressed his dissatisfaction with Mandanici, none of
his statements reasonably may be interpreted to reflect
a desire to further pursue the issue.
The evidence, therefore, reflects that despite the fact
that, during the present habeas trial, he expressed his
desire to bring an appeal from Judge Fasano’s ruling,
there was no evidence that he demonstrated such an
interest to Mandanici or inquired to any extent about
his appellate rights.12 Because the evidence, viewed in
its entirety, does not support a finding that the peti-
tioner reasonably demonstrated to Mandanici that he
was interested in bringing an appeal from Judge
Fasano’s denial of his motion to withdraw the guilty
plea, the petitioner has not demonstrated that, despite
the fact that there were not any nonfrivolous grounds
for an appeal, Mandanici had a constitutional obligation
to advise him about his right to appeal.
In light of the foregoing, we conclude that the peti-
tioner is unable to demonstrate that, in the prior habeas
action, Russell rendered ineffective assistance by failing
to pursue a claim concerning Mandanici’s failure to
advise him concerning his right to appeal.
II
Next, the petitioner claims that the court improperly
rejected his claim that Russell rendered ineffective
assistance in that he failed to present evidence in sup-
port of the petitioner’s claim that his guilty plea was
the result of Mandanici’s ineffective assistance. We
decline to reach the merits of this unpreserved claim.
In support of this claim, the petitioner argues that,
at the prior habeas trial, he testified, inter alia, about
the ways in which, in his view, Mandanici rendered
ineffective assistance. The petitioner argues, however,
that, at the prior habeas trial, Russell failed to present
testimony from him that would have demonstrated how
the deficiencies in Mandanici’s representation
‘‘impacted his decision to plead guilty, or what would
have needed to change in order for the petitioner to have
rejected the plea and proceeded to trial.’’ He argues that
the judgment of the habeas court should be reversed
because Russell’s failure to present such testimony
deprived him of the effective assistance of habeas
counsel.
The state argues, and we agree, that the petitioner
did not plead this ground in his habeas petition. ‘‘It is
well settled that [t]he petition for a writ of habeas cor-
pus is essentially a pleading and, as such, it should
conform generally to a complaint in a civil action. . . .
The principle that a plaintiff may rely only upon what
he has alleged is basic. . . . It is fundamental in our
law that the right of a plaintiff to recover is limited to
the allegations of his complaint. . . . While the habeas
court has considerable discretion to frame a remedy
that is commensurate with the scope of the established
constitutional violations . . . it does not have the dis-
cretion to look beyond the pleadings and trial evidence
to decide claims not raised.’’ (Internal quotation marks
omitted.) Abdullah v. Commissioner of Correction, 123
Conn. App. 197, 202, 1 A.3d 1102, cert. denied, 298 Conn.
930, 5 A.3d 488 (2010); see also Arriaga v. Commis-
sioner of Correction, 120 Conn. App. 258, 262, 990 A.2d
910 (2010), appeal dismissed, 303 Conn. 698, 36 A.3d
224 (2012).
Thus, we turn to the petitioner’s amended petition.
In count three of his amended petition, the only count
based on Russell’s representation, he alleged in relevant
part that ‘‘[Russell’s] performance was deficient
because he failed to plead and present evidence and
argument in support of the claims’’ previously set forth
in his petition. These claims were, in count one, that
Mandanici was ineffective for failing to advise the peti-
tioner that he had the right to appeal from Judge
Fasano’s denial of his oral motion to withdraw his guilty
plea and, in count two, that ‘‘[t]he petitioner’s defense
was adversely affected by [Mandanici’s] actual conflict
of interest . . . .’’ (Emphasis added.) In count two, the
petitioner alleged that he was prejudiced by a conflict
of interest because Mandanici failed to reasonably com-
municate with him, to adequately investigate the allega-
tions against him, to zealously advocate for him during
plea negotiations, and to advise him about his right to
appeal from Judge Fasano’s denial of his motion to
withdraw his guilty plea. Nowhere in the amended peti-
tion13 did the petitioner allege that Russell was deficient
for failing to present evidence in support of a claim
that his decision to plead guilty was the product of any
type of deficiencies in Mandanici’s representation gen-
erally.14
In light of the fact that the petitioner did not distinctly
raise the current claim in his amended petition, it is
unsurprising that the court did not expressly rule on it
in its thorough memorandum of decision.15 ‘‘This court
is not bound to consider claimed errors unless it
appears on the record that the question was distinctly
raised . . . and was ruled upon and decided by the
court adversely to the [petitioner’s] claim. . . . This
court is not compelled to consider issues neither alleged
in the habeas petition nor considered at the habeas
proceeding . . . .’’ (Internal quotation marks omitted.)
Satchwell v. Commissioner of Correction, 119 Conn.
App. 614, 619, 988 A.2d 907, cert. denied, 296 Conn. 901,
991 A.2d 1103 (2010); see also Greene v. Commissioner
of Correction, 131 Conn. App. 820, 822, 29 A.3d 171
(2011), cert. denied, 303 Conn. 936, 36 A.3d 695 (2012).
Accordingly, we decline to reach the merits of this
claim.16
III
Finally, the petitioner claims that the court improp-
erly rejected his claim that Russell rendered ineffective
assistance in his prior habeas action by failing to claim
that Mandanici’s conflict of interest resulted in the peti-
tioner’s guilty plea. We disagree.
In rejecting the petitioner’s claim, the habeas court
stated in relevant part: ‘‘The petitioner alleges that . . .
Russell represented him deficiently because he failed
to raise the claim that . . . Mandanici had a conflict
of interest in continued representation of the petitioner
during his criminal case. The purported basis for that
conflict of interest claim was that the petitioner had,
on February 19, 2000, filed a complaint against . . .
Mandanici with the Statewide Grievance Committee
while the criminal case was pending. That grievance
was ultimately dismissed because the committee deter-
mined that no misconduct occurred. This allegation
of ineffective assistance by habeas counsel fails for
multiple reasons.
‘‘First, the gist of the petitioner’s grievance was that
he was dissatisfied with the amount of investigation
performed and the lack of communication with the
petitioner by . . . Mandanici. This form of discontent
fails to create a conflict of interest requiring the removal
of counsel . . . .
‘‘Unhappiness with the perceived performance of
counsel by a criminal defendant creates no ground for
conflict of interest requiring removal of counsel . . . .
Insignificant and unsubstantiated criticisms of trial
counsel are insufficient to warrant withdrawal by that
lawyer . . . . The filing of a grievance based on that
perception is likewise insufficient to implicate violation
of the defendant’s sixth amendment rights and does
not disqualify the attorney who is the subject of that
grievance from continuing to represent the recalcitrant
client . . . . Consequently, the supposed conflict of
interest engendered by the lodging of the grievance
against . . . Mandanici afforded a very shaky legal
ground on which . . . Russell could assert such a claim
at the earlier habeas proceeding.
‘‘Second, the petitioner’s later guilty plea waived any
conflict of interest claim even if . . . the ersatz disqual-
ifying circumstance existed. The petitioner pleaded
guilty on April 14, 2000, around two months after he
grieved . . . Mandanici. The general rule is that a guilty
plea waives all nonjurisdictional defects antecedent to
the entering of the plea, including defects asserting
constitutional deprivations . . . . Only defects which
implicate the subject matter jurisdiction of the court
survive a later valid guilty plea, and effects asserting
lack of personal jurisdiction over an accused are waived
by a subsequent guilty plea. . . . This waiver rule
applies equally to matters raised by way of direct appeal
or by collateral attack, such as through a petition for
habeas corpus relief . . . .’’ (Citations omitted; empha-
sis in original; internal quotation marks omitted.)
Then, the court discussed Connecticut Supreme
Court and federal court case law in support of the well
settled proposition that a later guilty plea waives claims
of ineffectiveness of counsel at earlier proceedings
unrelated to the taking of a plea. The court correctly
observed that, unless an alleged conflict of interest was
shown to have rendered a plea itself to be involuntarily
or unknowingly made, a claim of a conflict of interest
by an accused’s attorney is waived for all purposes by
virtue of a guilty plea.
The court stated: ‘‘This court’s review of the petition-
er’s plea hearing transcript discloses that the petitioner
entered that plea, under the Alford doctrine, knowingly
and voluntarily. Whatever psychological role the peti-
tioner’s dissatisfaction with . . . Mandanici’s previous
representation may have played in his decision to plead
guilty is immaterial. What counts is that the petitioner
understood the rights he gave up by pleading guilty,
the nature of the charge against him, the strengths and
weaknesses of the state’s case and his own, the punish-
ments available for that offense, and the terms of the
agreed disposition. This court’s examination of the
record leads it to concur with Judge Fuger’s finding on
the same point that the petitioner ‘freely made the
choice to give up his constitutional right to a trial in
order to obtain favorable consideration upon sentenc-
ing’ . . . .
‘‘This waiver provides additional support for the con-
clusion that . . . Russell acted properly and profes-
sionally when he omitted such a dubious claim in the
first habeas case.’’
On appeal, the petitioner argues that the court
improperly raised the issue of waiver sua sponte and
in reliance on that doctrine determined that he was
unable to demonstrate that Russell rendered ineffective
representation by failing to pursue a claim in the prior
habeas action related to Mandanici’s conflict of interest.
The petitioner accurately observes that the respondent
did not allege waiver as a special defense in his return.
The petitioner argues that it was improper for the court
to have disposed of his claim based on that defense
because he was without notice that the court would
rely on waiver. He argues that, ‘‘[a]lthough the issue of
whether waiver must be pleaded by the respondent in
a habeas case before a habeas court can dismiss a
petition on grounds of waiver has not been directly
been addressed by Connecticut courts,’’ appellate case
law and Practice Book § 23-30 (b), which requires the
respondent to allege in the return ‘‘facts in support of
any claim . . . that the petitioner is not entitled to
relief,’’ support a determination that a habeas court may
not sua sponte raise a special defense and dispose of
a claim in reliance thereupon. The petitioner relies heav-
ily on this court’s holdings in Diaz v. Commissioner
of Correction, 157 Conn. App. 701, 706–707, 117 A.3d
1003 (2015), appeal dismissed, 326 Conn. 419, 165 A.3d
147 (2017), and Barlow v. Commissioner of Correction,
150 Conn. App. 781, 786–87, 93 A.3d 165 (2014). In
both Diaz and Barlow, this court concluded that it was
reversible error for a habeas court to have sua sponte
raised the affirmative defense of procedural default and
thereafter to have dismissed a habeas petition on that
ground that had not been pleaded by the respondent.
Diaz v. Commissioner of Correction, supra, 706–707;
Barlow v. Commissioner of Correction, supra, 786–87.
We are not persuaded by the petitioner’s argument
concerning waiver because, contrary to the petitioner’s
characterization of the court’s analysis, the court’s deci-
sion does not reflect that it sua sponte either raised an
affirmative defense (or a claim that the petitioner was
not entitled to relief) or dismissed the petition, in whole
or in part, on the basis of such defense or claim. The
court did not conclude that the petitioner had waived
his claim that Russell had deprived him of ineffective
representation during the prior habeas action. Under
Strickland, it was appropriate for the court to evaluate
what prejudice, if any, resulted to the petitioner as a
result of Russell’s alleged deficient performance. The
court, in evaluating whether the petitioner met his bur-
den of demonstrating that Russell had prejudiced him
by failing to raise a claim related to Mandanici’s alleged
conflict of interest relied, in part, on its conclusion that
the claim that Russell did not raise would have been
waived by virtue of the petitioner’s guilty plea. Thus,
the court considered and rejected the petitioner’s claim
against Russell on its merits, concluding that the waiver
doctrine provided ‘‘additional support’’ for its determi-
nation that the underlying claim against Mandanici that
Russell did not raise at the prior proceeding was ‘‘dubi-
ous,’’ at best, when viewed in light of state and federal
authority concerning what types of claims may be raised
following a valid guilty plea. The habeas court did not
determine that the petitioner’s claim arising from Rus-
sell’s representation was waived nor did it dismiss that
portion of the petition on that ground.
Additionally, the petitioner argues that, even if the
court properly considered the issue of waiver, it improp-
erly relied on that doctrine because his testimony at
the habeas trial reflected that the breakdown in his
relationship with Mandanici and his concern that Man-
danici would not represent him zealously at trial was
‘‘the catalyst for his decision to accept the guilty plea.’’
The petitioner argues that the evidence presented,
including his testimony, demonstrated ‘‘a direct nexus’’
between the conflict of interest involving Mandanici
and his guilty plea. The petitioner urges us to conclude
that because he was able to prove this factual link
between the conflict of interest and his plea, such a
showing necessarily provided him with a valid ground
to withdraw his plea under Practice Book § 39-27.
Accordingly, the petitioner argues, the court should not
have concluded that the conflict of interest claim was
not strong and, thus, that Russell did not deprive him
of his right to effective representation by not raising it
in the prior habeas action.
In this aspect of his argument, the petitioner urges
us to conclude that, to the extent that the court did not
view his testimony and other evidence concerning his
dissatisfaction with Mandanici as proof that Mandan-
ici’s conflict of interest was inherently related to his
guilty plea, the court’s findings are clearly erroneous.
As we have discussed previously in this opinion, the
court recognized that it was significant to determine
whether the claimed conflict of interest somehow ren-
dered the petitioner’s plea invalid. The court explained
in its memorandum of decision, however, that ‘‘[t]he
petitioner’s request to withdraw his guilty plea was
simply a change of mind. Reconsideration or regret,
standing alone, cannot validly support a motion to with-
draw a guilty plea that was otherwise lawfully entered.’’
The court unambiguously found that the petitioner’s
plea was knowingly and voluntarily made, explicitly
rejecting the petitioner’s argument that his dissatisfac-
tion with Mandanici and the issues surrounding the
filing of his grievance complaint influenced his decision
to plead guilty. In making this finding, which is fatal
to the petitioner’s claim, the court stated that it had
examined the record and, in particular, the transcript
of the plea hearing of April 4, 2000.
We reiterate that we ‘‘cannot disturb the underlying
facts found by the habeas court unless they are clearly
erroneous . . . .’’ (Internal quotation marks omitted.)
Gerald W. v. Commissioner of Correction, supra, 169
Conn. App. 465. ‘‘[A] finding of fact is clearly erroneous
when there is no evidence in the record to support it
. . . or when although there is evidence to support it,
the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed.’’ (Internal quotation marks omitted.) Diaz
v. Commissioner of Correction, 174 Conn. App. 776,
786, 166 A.3d 815, cert. denied, 327 Conn. 957, 172 A.3d
204 (2017). ‘‘[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.’’ (Internal quota-
tion marks omitted.) Bennett v. Commissioner of Cor-
rection, 182 Conn. App. 541, 555–56, A.3d (2018).
The petitioner relies on the weight of his testimony,
in which he attempted to demonstrate that his plea was
not knowingly and voluntarily made, as well as other
evidence presented at the habeas trial to demonstrate
that at the time of the plea he was dissatisfied with
Mandanici’s representation. The court, having had a
firsthand vantage point from which to observe the peti-
tioner testify about the plea and assess the truthfulness
of his testimony, was not obligated to accept as true
the petitioner’s version of the facts, specifically, that he
was compelled to plead guilty by virtue of Mandanici’s
ineffectiveness and the filing of the grievance com-
plaint. The court relied on the transcript of the plea
hearing, which reflects that the petitioner had been
thoroughly canvassed by Judge Fasano and, despite his
expressions of dissatisfaction with Mandanici, nonethe-
less indicated, among other things, that he was agree-
able to the plea agreement, that he was satisfied with
Mandanici’s advice concerning the plea, that he
believed that he was doing the right thing by pleading
guilty, that he understood the rights he was giving up
by pleading guilty, that he was pleading guilty volunta-
rily, that he understood the state’s case against him,
that he understood the punishment he was facing if he
proceeded to trial, and that he was motivated to plead
guilty rather than risk receiving a heavier penalty fol-
lowing a trial. Thus, the court’s factual finding concern-
ing the voluntariness of the plea is supported by
evidence in the record. We are not persuaded that a
mistake has been made.
The judgment is affirmed.
In this opinion the other judges concurred.
1
See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
2
The petitioner was put to plea for ‘‘felony murder in violation of . . .
§ 53a-54c.’’ As part of its canvass, the court asked the petitioner if had an
opportunity to discuss with his attorney the elements of the offense and
the evidence on which the state relied. Also, the court asked the petitioner
if he understood the elements of the offense and the evidence on which
the state relied. To both inquiries, the petitioner replied, ‘‘Yes.’’ Further, the
court asked Mandanici if he was satisfied that the petitioner understood
the elements of the offense and the evidence on which the state relied.
Mandanici replied affirmatively. The court did not further discuss the offense
or the elements thereof.
None of the petitioner’s claims in his amended petition for a writ of habeas
corpus is based on an inadequacy in the court’s canvass and, thus, such a
claim is not before us. Nonetheless, we observe that, to dispel any possible
confusion concerning the nature of the offense in cases such as the present
case, it would be helpful for trial courts to clarify, during their plea canvasses,
that when an accused pleads guilty to ‘‘felony murder’’ under the felony
murder statute, § 53a-54c, he is, in fact, pleading guilty to a type of murder,
other than intentional murder, and is, accordingly, subject to the same
penalties that may be imposed for the crime of murder.
3
In the grievance complaint, the petitioner alleged in general terms that
Mandanici failed to investigate his case and failed to communicate with him
concerning his defense. The statewide grievance committee concluded that
Mandanici had not breached ethical standards in his representation of the
petitioner and, therefore, dismissed the complaint.
4
At trial, the petitioner presented evidence that by motion dated July 28,
2016, he sought permission from this court to file a late appeal from Judge
Fasano’s May 26, 2000 denial of his oral motion to withdraw his guilty plea,
as well as an order from our Supreme Court, dated September 27, 2016,
denying the motion.
5
We will set forth the basis for the court’s decision in the context of the
claims raised on appeal.
6
In its analysis of the petitioner’s claim of whether Russell deprived him
of his right to effective representation by failing to claim in the prior habeas
action that Mandanici deprived him of his right to effective representation
by failing to advise him of his right to appeal from Judge Fasano’s denial
of his motion to withdraw his guilty plea, the court relied on what it believed
to be authorities that governed an analysis of the claim in 2003, when Russell
represented the petitioner, namely, Bunkley v. Commissioner of Correction,
222 Conn. 444, 454, 610 A.2d 598 (1992), and Copas v. Commissioner of
Correction, 234 Conn. 139, 151, 662 A.2d 718 (1995). The court correctly
recognized that these cases later were overruled by Small v. Commissioner
of Correction, 286 Conn. 707, 723, 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), and
Carraway v. Commissioner of Correction, 317 Conn. 594, 600 n.6, 119 A.3d
1153 (2015), respectively.
The parties submit, and we agree, that the proper framework for evaluating
an ineffective assistance of counsel claim based on counsel’s failure to
advise a defendant about his appellate rights following a guilty plea is based
on an evaluation of whether counsel’s deficient performance deprived a
defendant of an appeal that he would have taken. This framework, which
we will discuss in detail, was set forth in Roe v. Flores-Ortega, 528 U.S. 470,
120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000), and it has been followed by our
appellate courts. See, e.g., Ghant v. Commissioner of Correction, 255 Conn.
1, 7, 761 A.2d 740 (2000); Shelton v. Commissioner of Correction, 116 Conn.
App. 867, 878–79, 977 A.2d 714, cert. denied, 293 Conn. 936, 981 A.2d 1080
(2009). This is the standard under which we will evaluate the petitioner’s
claim. The fact that the habeas court utilized a different standard in its
evaluation of the present claim does not affect our plenary evaluation of
the claim. As we explain in our subsequent analysis, the habeas court’s
detailed factual findings, which are supported by the evidence, amply sup-
port a conclusion that the petitioner is unable to prevail under the currently
recognized standard.
Moreover, to the extent that the petitioner argues that the court errone-
ously relied on Copas in its analysis of the petitioner’s claim that Russell
rendered ineffective representation by failing to pursue a claim related to
an alleged conflict of interest on the part of Mandanici, the habeas court’s
memorandum of decision does not support the claim.
7
Practice Book § 39-27 provides: ‘‘The grounds for allowing the defendant
to withdraw his or her plea of guilty after acceptance are as follows:
‘‘(1) The plea was accepted without substantial compliance with Section
39-19;
‘‘(2) The plea was involuntary, or it was entered without knowledge of
the nature of the charge or without knowledge that the sentence actually
imposed could be imposed;
‘‘(3) The sentence exceeds that specified in a plea agreement which had
been previously accepted, or in a plea agreement on which the judicial
authority had deferred its decision to accept or reject the agreement at the
time the plea of guilty was entered;
‘‘(4) The plea resulted from the denial of effective assistance of counsel;
‘‘(5) There was no factual basis for the plea; or
‘‘(6) The plea either was not entered by a person authorized to act for a
corporate defendant or was not subsequently ratified by a corporate
defendant.’’
8
We observe that, in Roe, the United States Supreme Court rejected a
resort to a bright line rule that counsel must always consult with a defendant
regarding an appeal. Roe v. Flores-Ortega, supra, 528 U.S. 480. Rather than
adhering to what it considered to be per se rules governing the conduct of
defense counsel, the court crafted an approach that focused on whether
the failure to consult with a defendant regarding an appeal was reasonable in
light of the particular circumstances of each case. Id., 481. We acknowledge,
however, that the court in Roe stated that it was ‘‘the better practice for
counsel routinely to consult with the defendant regarding the possibility of
an appeal.’’ Id., 479.
9
The record reflects that at the sentencing hearing on May 26, 2000, Judge
Fasano invited the petitioner to indicate a basis on which his motion to
withdraw the plea should be granted. The petitioner stated that Mandanici
was aware that he did not commit murder, that the confession on which
the state relied was ‘‘bull shit,’’ and that he believed that he would ‘‘get a
lesser charge.’’ When the petitioner stated that he was not pleading to
murder, Judge Fasano reminded the petitioner that such a plea already had
been made and accepted by the court.
10
The correspondence on which the petitioner relies is addressed to Judge
Fasano and is dated May 8, 2000. In this handwritten correspondence, the
petitioner stated, in relevant part, that he was ‘‘unaware of what was really
going on’’ with respect to the plea, Mandanici did not explain things ade-
quately to him with respect to the plea, Mandanici did not communicate
effectively with him, he believed that he was forced into making a plea, he
no longer wanted to enter into a plea agreement, he wanted to proceed to
trial, and he wanted an attorney appointed to represent him at trial.
11
The defendant relies on this court’s reasoning in State v. Simpson, 169
Conn. App. 168, 184–204, 150 A.3d 699 (2016). In Simpson, a direct appeal,
this court determined that the trial court improperly had failed to conduct
an evidentiary hearing on the defendant’s motion to withdraw his guilty
plea based on his representation that he did not understand the nature of
the charge to which he pleaded guilty and that the trial court improperly
had failed to inquire into his request for new counsel. Id. Following this
court’s decision, our Supreme Court granted certification to appeal. State
v. Simpson, 324 Conn. 904, 151 A.3d 1289 (2016). Following oral argument
in the present appeal, our Supreme Court officially released its decision
reversing this court’s judgment. State v. Simpson, 329 Conn. 820, A.3d
(2018). Our Supreme Court concluded that the trial court had conducted
an adequate hearing on the motion to withdraw the guilty plea and that an
evidentiary hearing was unnecessary. Id., 842. Also, our Supreme Court
concluded that the trial court was not required to conduct a hearing on the
defendant’s request for new counsel. Id.
The defendant’s reliance on this court’s decision in Simpson is unavailing,
and a careful review of our Supreme Court’s decision in Simpson does not
lend any support to the defendant’s claim that he had advanced a nonfrivo-
lous ground in connection with his motion to withdraw his guilty plea.
12
At the present habeas trial, the petitioner testified that several days
following the sentencing hearing, he ‘‘tried to reach’’ Mandanici. It is unclear
from the petitioner’s testimony, however, whether he actually spoke with
Mandanici following the sentencing hearing or why he wanted to speak to
Mandanici. The petitioner testified, however, that approximately one year
following the sentencing hearing, he contacted the public defender’s office
in an attempt to obtain information about how to ‘‘withdraw the plea,’’ but
he was advised that the time period in which to appeal from Judge Fasano’s
ruling had expired.
13
We observe, however, that the petitioner briefly mentioned the present
claim in his posttrial brief, in which he argued that, in his prior habeas
action, he bore the burden of demonstrating that he was prejudiced by
Mandanici’s ineffective assistance by proving that, if Mandanici had not
performed deficiently, he would have rejected the state’s plea offer and
proceeded to trial. He argued in relevant part that Russell was ineffective
for his failure ‘‘to present testimony that he would not have [pleaded] guilty if
[he had been] properly represented [by Mandanici].’’ Although the petitioner
made this argument in his posttrial brief, he did not distinctly raise it before
the habeas court. ‘‘Claims raised for the first time in posttrial briefs are not
reviewable by the habeas court or by this court on appeal.’’ (Internal quota-
tion marks omitted.) Antwon W. v. Commissioner of Correction, 172 Conn.
App. 843, 877, 163 A.3d 1223, cert. denied, 326 Conn. 909, 164 A.3d 680 (2017).
14
Our conclusion that the petitioner’s second claim is not based on ineffec-
tive representation, but on a conflict of interest, is bolstered by the fact
that, in count two of the amended petition, the petitioner alleged that his
claim, based on the existence of a conflict of interest, was not previously
raised. As we stated previously in this opinion, one of the grounds of the
petitioner’s prior habeas petition, in 2003, was that Mandanici rendered
ineffective assistance and, because of this constitutional violation, he should
be permitted to withdraw his guilty plea.
15
Presumably, if the petitioner believed that the habeas court had over-
looked this claim, he could have asked the court to address the claim by
filing a postjudgment motion.
16
We observe that, to the extent that the petitioner believes that in the
present habeas action he presented credible evidence, including his own
testimony, that demonstrated that, apart from any conflict of interest on
Mandanici’s part, defective representation by Mandanici resulted in his guilty
plea, we observe that the court clearly indicated in its decision that it was
not persuaded by the petitioner’s evidence in this regard. In addressing the
issue of whether Mandanici had a colorable basis upon which to bring a
motion to withdraw the petitioner’s guilty plea, the court considered
whether, under Practice Book § 39-27 (4), the petitioner could have demon-
strated that ‘‘[t]he plea resulted from the denial of effective assistance of
counsel . . . .’’ The court expressly found that the petitioner had not pre-
sented any ‘‘credible evidence’’ in the present proceeding that there was a
sound basis for Mandanici to bring a motion to withdraw the petitioner’s
guilty plea. This finding is significant in terms of the present claim because,
even if the claim at issue concerning Russell’s failure to present certain
testimony from the petitioner at the prior habeas trial had been properly
raised and considered by the trial court, the habeas court’s finding, after
hearing that testimony from the petitioner at the present trial, that his
plea was not the result of any deficiencies on Mandanici’s part necessarily
undermines the petitioner’s claim that he had been prejudiced by Russell’s
failure to present the petitioner’s testimony in this regard at the prior habeas
trial. Thus, even if the court should have addressed a claim of this nature,
we are convinced that its failure to do so was harmless in light of its
other findings.