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JOSHUA CRUZ v. COMMISSIONER
OF CORRECTION
(AC 43961)
Bright, C. J., and Prescott and Lavine, Js.
Syllabus
The petitioner, who had been convicted on a plea of guilty to the crime of
murder, sought a writ of habeas corpus, claiming that his counsel pro-
vided ineffective assistance. At the time of his plea, the trial court found
that it was made voluntarily and informed the petitioner that, pursuant
to his agreement with the state, he would be sentenced to a period of
twenty-five to forty-two years of incarceration. Prior to his sentencing
hearing, the petitioner filed a letter with the trial court seeking to with-
draw his guilty plea, indicating that his attorney, G, had coerced him
into pleading guilty and that he thought he was doing so to a charge of
manslaughter rather than to murder. The trial court then appointed a
new attorney, P, to represent the petitioner and P filed a motion to
withdraw the petitioner’s guilty plea. The petitioner withdrew that
motion at his sentencing hearing and the trial court sentenced him to
thirty-eight years of incarceration. The petitioner subsequently filed a
petition for a writ of habeas corpus, claiming that, during plea negotia-
tions, G misadvised him as to the negotiated plea agreement and his
sentence exposure, failed to make a thorough investigation of the facts,
failed to consult with him adequately before his guilty plea, and failed
to present favorable information to the trial court. Additionally, the
petitioner claimed that, during his sentencing hearing, P failed to present
mitigating evidence and failed to advocate zealously to secure the lowest
sentence contemplated by the plea agreement. Following an evidentiary
hearing, the habeas court rendered judgment denying the habeas peti-
tion, and the petitioner, on the granting of certification, appealed to this
court. Held:
1. The habeas court did not err in concluding that the petitioner had failed to
prove that he was prejudiced by G’s allegedly inadequate representation
during plea negotiations because the petitioner did not demonstrate
that there was a reasonable probability that he would not have pleaded
guilty and, instead, would have gone to trial but for G’s allegedly deficient
performance: the petitioner’s ability to prove prejudice was undermined
by the fact that he was appointed alternate counsel, P, who, after
reviewing his entire file with him, advised the petitioner to accept the
plea bargain and forgo trial, and, as a result, the petitioner decided to
withdraw his motion to withdraw his plea and proceeded with his guilty
plea; moreover, the probability of the petitioner’s conviction at trial was
high, as the state’s case against him was unusually strong and included
video surveillance of the incident, the statements of multiple eyewit-
nesses, and evidence of the petitioner’s DNA on the murder weapon;
furthermore, no evidence was presented that indicated that a lesser
sentence would have been available, but for G’s allegedly deficient
performance.
2. The habeas court did not err in concluding that the petitioner failed to
prove his claim of ineffective assistance with respect to P’s representa-
tion during the sentencing proceedings: the petitioner was not entitled
to a presumption of prejudice pursuant to United States v. Cronic (466
U.S. 648) and Davis v. Commissioner of Correction (319 Conn. 548)
because P advocated on his behalf at the sentencing hearing by present-
ing mitigation evidence, including the petitioner’s remorse, his difficult
upbringing, his positive work history, and his lack of prior involvement
with the criminal justice system, and by requesting a sentence that was
less than the petitioner’s maximum exposure, even though he did not
request the minimum sentence for strategic purposes; moreover, the
petitioner failed to prove that he was prejudiced by P’s allegedly inade-
quate representation because he failed to present any evidence indicating
that the trial court would have given him a lesser sentence if mitigation
evidence relating to the petitioner’s mental health or other additional
evidence was presented at the sentencing hearing and, given the strength
of the state’s case, the seriousness of the crime, and the trial court’s
awareness of the pertinent mitigation evidence, there was not a reason-
able probability that, but for any deficient performance by P, the peti-
tioner would have received a lesser sentence.
Argued April 8—officially released July 20, 2021
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, Bhatt, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
Deborah G. Stevenson, assigned counsel, for the
appellant (petitioner).
Erika L. Brookman, senior assistant state’s attorney,
with whom, on the brief, were Patrick J. Griffin, state’s
attorney, and Craig Nowak, senior assistant state’s
attorney, for the appellee (respondent).
Opinion
LAVINE, J. The petitioner, Joshua Cruz, appeals, fol-
lowing the granting of his petition for certification to
appeal, from the judgment of the habeas court denying
his petition for a writ of habeas corpus. On appeal, the
petitioner claims that the court erred by concluding
that (1) Attorney William Gerace’s allegedly deficient
representation during plea negotiations was not prejudi-
cial, and (2) Attorney Dean Popkin did not render inef-
fective assistance with respect to the petitioner’s sen-
tencing proceeding. We affirm the judgment of the
habeas court.
The following facts and procedural history are rele-
vant to our resolution of the petitioner’s claims. On
December 18, 2012, the petitioner pleaded guilty before
the court, Clifford, J., to murder in violation of General
Statutes § 53a-54a (a).1 The charge stemmed from an
incident that occurred in New Haven on August 14,
2010, during which the petitioner shot and killed the
victim, Javier Cosme, in a parking lot following an alter-
cation at a nightclub. The court canvassed the petitioner
and found that his plea was made voluntarily and
‘‘understandably’’ with the assistance of competent
counsel. In exchange for his plea of guilty, the court,
pursuant to an agreement between the state and the
petitioner, informed the petitioner that it would sen-
tence him to between twenty-five and forty-two years
of incarceration, with the opportunity to argue for less
than the maximum of forty-two years.
Prior to the sentencing hearing, the petitioner filed
a letter with the court seeking to withdraw his guilty
plea. In his letter, the petitioner alleged that Attorney
Gerace had coerced him to plead guilty and that he had
been under the impression that he was pleading guilty
to manslaughter rather than to murder. On February
22, 2013, the court held a hearing at which it continued
the petitioner’s sentencing until the petitioner secured a
new attorney to represent him. Subsequently, Attorney
Popkin was appointed to represent the petitioner. On
April 11, 2013, Attorney Popkin filed a motion to with-
draw the petitioner’s guilty plea.
On May 30, 2013, the court held the sentencing hear-
ing. During the hearing, the petitioner withdrew his
motion to withdraw his guilty plea. The court then sen-
tenced the petitioner to thirty-eight years of incarcera-
tion.
The petitioner subsequently filed a petition for a writ
of habeas corpus. In his amended petition, the petitioner
alleged that Attorney Gerace provided ineffective assis-
tance during the plea negotiations by (1) misadvising
him as to the negotiated plea agreement and his sen-
tence exposure, (2) failing to make a thorough investiga-
tion of the facts, (3) failing to consult adequately with
him prior to his guilty plea, and (4) failing to present
favorable information to the state and the court. The
petitioner further alleged that Attorney Popkin provided
him with ineffective assistance during sentencing by
(1) failing to present any mitigating evidence to the
court prior to sentencing and (2) failing to advocate
zealously for him to secure the lowest sentence contem-
plated by the plea agreement. The habeas court, Bhatt,
J., denied the habeas petition. The court concluded that
the petitioner had failed to prove that he was prejudiced
by Attorney Gerace’s performance and that he had
failed to prove both deficient performance and preju-
dice regarding Attorney Popkin’s representation. The
petitioner filed a petition for certification to appeal,
which the court granted, and this appeal followed. Addi-
tional facts will be set forth as necessary.
I
The petitioner’s first claim is that the habeas court
erred in concluding that he was not prejudiced by Attor-
ney Gerace’s allegedly inadequate representation of him
during plea negotiations. We disagree.
The following additional procedural history is rele-
vant to our review. During the habeas trial, the peti-
tioner testified as to the following. On December 5,
2012, Attorney Gerace told him that the state had
offered the petitioner a plea bargain for forty-five years,
and he advised the petitioner not to take it because ‘‘it
was too much time . . . .’’ Two individuals from Attor-
ney Gerace’s office subsequently visited the petitioner
in prison and indicated that there was an offer to resolve
the case with a plea for manslaughter for a term of
forty years of incarceration. They did not, however,
review police reports with the petitioner or discuss any
defenses with him. Attorney Gerace later spoke with
the petitioner over the phone and told him that he
needed to make a decision with respect to the offer
before the December 18, 2013 court date and that the
state had reduced his charge to manslaughter. On
December 18, 2013, the petitioner met with Attorney
Gerace at the courthouse. During the meeting, Attorney
Gerace was ‘‘aggressive’’ with the petitioner, yelled at
him, ‘‘you did it; they’ve got you on video; you have to
plead guilty,’’ and stated that the only way forward was
to ‘‘take the charges away from the prosecutor and put
it in the hands of the judge and just say yes to all the
questions.’’ Following his guilty plea, the petitioner tried
to contact Attorney Gerace a number of times to discuss
his plea because he thought that he would be pleading
guilty to manslaughter rather than murder. After he
failed to reach Attorney Gerace, the petitioner wrote a
letter to the court asking to withdraw his plea and filed
a grievance complaint against Attorney Gerace.
Thereafter, Attorney Popkin was appointed to repre-
sent the petitioner. He visited the petitioner several
times to discuss his motion to withdraw his guilty plea.
Attorney Popkin told him that he was ‘‘not going to win
the motion because [the petitioner] had answered yes
to all of the judge’s questions.’’ He also told the peti-
tioner that he would lose if he went to trial. As a result,
the petitioner agreed to withdraw his motion to with-
draw his plea.
At the habeas trial, Attorney Popkin testified that he
had advised the petitioner that the charge of murder
carried a mandatory minimum sentence of twenty-five
years of incarceration and that he also had discussed the
petitioner’s case with him generally, including possible
defenses. He further testified that he told the petitioner
that, if he withdrew his guilty plea, the petitioner would
be facing a murder charge and a trial and that Attorney
Popkin ‘‘thought it highly likely that he would be found
guilty, and that he would receive a sentence of signifi-
cantly longer than what he would get in pursuing the
plea bargain.’’ As a result, Attorney Popkin recom-
mended that the petitioner withdraw his motion to with-
draw his guilty plea.
The prosecutor, Michael Pepper, also testified at the
petitioner’s habeas trial. He testified that he decided to
charge the petitioner with murder after reviewing vid-
eos of the incident, police reports, and statements from
a number of witnesses. He never contemplated reducing
the charge to manslaughter because the state’s case
‘‘was remarkably strong’’ and the probability of convic-
tion was ‘‘pretty high . . . .’’ As a result of the nature
of the charges against the petitioner, he faced up to
seventy years of incarceration if found guilty.
On January 6, 2020, the habeas court issued its memo-
randum of decision. With respect to the petitioner’s
ineffective assistance of counsel claim against Attorney
Gerace, the court addressed only the prejudice prong
of the test set forth in Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
and assumed, without deciding, that the deficient per-
formance prong had been satisfied. The court con-
cluded that the petitioner had failed to prove that he
was prejudiced by any claimed deficient performance
because he could not prove that, but for Attorney Ger-
ace’s allegedly deficient performance, he would have
rejected the plea bargain and proceeded to trial. The
court reasoned that the petitioner’s ability to prove
prejudice was ‘‘critically undermined by the fact that he
did seek to withdraw his plea, was appointed alternate
counsel who reviewed the entire file with the petitioner
and provided him with the same advice—that he should
accept the offer and not risk a trial—and then, based
on that advice, the petitioner did indeed continue with
his plea of guilty and eschewed a trial.’’ The habeas
court further noted that the evidence against the peti-
tioner was overwhelming, as ‘‘at least three witnesses
[had] identified him as the shooter, his DNA was on
the murder weapon and the victim was shot five times at
close range.’’2 Moreover, as to the petitioner’s allegation
that Attorney Gerace failed to present favorable infor-
mation to the state and the court during plea negotia-
tions in an effort to obtain a lesser charge or sentence,
the court found that the petitioner could not prove
prejudice. The court found that it was clear that the
state was never going to reduce the charge to man-
slaughter and that the petitioner had failed to prove
that a lesser sentence for the murder charge would
have been available. Accordingly, the court concluded
that the petitioner had failed to prove that he was preju-
diced by any allegedly deficient performance of Attor-
ney Gerace.
‘‘[T]he governing legal principles in cases involving
claims of ineffective assistance of counsel arising in
connection with guilty pleas are set forth in Strickland
[v. Washington, supra, 466 U.S. 668] and Hill [v. Lock-
hart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)].
[According to] Strickland, [an ineffective assistance of
counsel] claim must be supported by evidence estab-
lishing 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. . . . Under . . .
Hill . . . which . . . modified the prejudice prong of
the Strickland test for claims of ineffective assistance
when the conviction resulted from a guilty plea, the
evidence must demonstrate 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. . . . In its analysis, a reviewing court
may look to the performance prong or to the prejudice
prong, and the petitioner’s failure to prove either is fatal
to a habeas petition.’’ (Emphasis in original; internal
quotation marks omitted.) Colon v. Commissioner of
Correction, 179 Conn. App. 30, 35–36, 177 A.3d 1162
(2017), cert. denied, 328 Conn. 907, 178 A.3d 390 (2018).
‘‘The 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. . . . [T]his court cannot
disturb the underlying facts found by the habeas court
unless they are clearly erroneous . . . . The applica-
tion of the habeas court’s factual findings to the perti-
nent legal standard, however, presents a mixed question
of law and fact, which is subject to plenary review. . . .
‘‘In evaluating the prejudice prong and the credibility
of the petitioner’s assertion that he would have insisted
on going to trial but for [counsel’s] deficient perfor-
mance, it is appropriate for the habeas court to consider
whether a decision to reject a plea offer, under the
circumstances presented, would have been rational.
. . . Additionally, a petitioner’s assertion after he has
accepted a plea that he would have insisted on going
to trial suffers from obvious credibility problems . . . .
In evaluating the credibility of such an assertion, the
strength of the state’s case is often the best evidence
of whether a defendant in fact would have changed his
plea and insisted on going to trial . . . . Likewise, the
credibility of the petitioner’s after the fact insistence
that he would have gone to trial should be assessed in
light of the likely risks that pursuing that course would
have entailed.’’ (Citations omitted; internal quotation
marks omitted.) Lebron v. Commissioner of Correc-
tion, 204 Conn. App. 44, 51–52, 250 A.3d 44, cert. denied,
336 Conn. 948, 250 A.3d 695 (2021).
As a preliminary matter, although the court assumed
that Attorney Gerace performed deficiently for pur-
poses of its analysis, it never suggested, much less con-
cluded, that he performed deficiently. ‘‘[A] court need
not determine whether counsel’s performance was defi-
cient before examining the prejudice suffered by the
[petitioner] as a result of the alleged deficiencies. . . .
If it is easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice . . . that
course should be followed.’’ Strickland v. Washington,
supra, 466 U.S. 697. It is apparent that this is the course
the habeas court followed. Thus, to the extent that the
petitioner asserts that the court actually found that
Attorney Gerace’s performance was deficient, he is sim-
ply wrong.
We conclude that the habeas court’s finding that the
petitioner had failed to prove that there was a reason-
able probability that he would not have pleaded guilty
and would have insisted on going to trial but for Attor-
ney Gerace’s allegedly deficient performance was not
clearly erroneous. Although the petitioner testified that
he would have gone to trial but for Attorney Gerace’s
advice, the habeas court, as the sole arbiter of the credi-
bility of witnesses and the weight to be given to their
testimony, was entitled to reject his testimony in light
of the other evidence presented during trial. See Lebron
v. Commissioner of Correction, supra, 204 Conn. App.
51. As the court observed in its memorandum of deci-
sion, the petitioner’s ability to prove prejudice was criti-
cally undermined by the facts that he was appointed
alternate counsel, he reviewed his entire file with his
new counsel, his new counsel advised him to accept
the plea bargain and forgo a trial, and, as a result of this
advice, the petitioner decided to withdraw his motion
to withdraw his plea and proceeded with his guilty plea.
The state also had an unusually strong case against
the petitioner. There was video surveillance footage
depicting both the incident itself and the fight at the
nightclub that preceded the incident, witnesses gave
statements indicating that they saw the petitioner shoot
the victim, and the petitioner’s DNA was found on the
murder weapon. The petitioner himself did not even
dispute that he shot the victim; he asserted only that
he did not intend to kill him. Consequently, there was
sufficient reason for the court not to credit the petition-
er’s testimony that he would not have pleaded guilty
and, instead, would have gone to trial if properly advised
by Attorney Gerace. As a result, the court’s finding that
the petitioner failed to prove prejudice was not clearly
erroneous.
Moreover, to the extent that the petitioner claims
that he was prejudiced by Attorney Gerace’s failure to
present favorable information to the state and the court
during plea negotiations, we are unpersuaded. Apart
from the petitioner’s own testimony at the habeas trial
that Attorney Gerace and representatives from his
office had told him that the state had reduced the charge
to manslaughter, no other evidence was presented dur-
ing trial that demonstrated, or even suggested, that a
lesser sentence would have been available but for Attor-
ney Gerace’s deficient performance. The prosecutor
testified that he never would have considered reducing
the charge to manslaughter as a result of the strength
of the state’s case and that the petitioner faced up to
seventy years of incarceration. Attorney Popkin also
testified that the court had indicated that the petition-
er’s sentence was ‘‘probably going to be in the high
[thirties]’’ and that the state asked for forty-two years
at the sentencing hearing. The habeas court was entitled
to credit the testimony of the prosecutor and Attorney
Popkin and to reject that of the petitioner. See Lebron
v. Commissioner of Correction, supra, 204 Conn. App.
51. The court’s finding that a lesser sentence could
not have been obtained through more effective plea
bargaining, thus, was not clearly erroneous. Accord-
ingly, we conclude that the court properly determined
that the petitioner had not proven his claims of ineffec-
tive assistance of counsel as to Attorney Gerace.
II
The petitioner next claims that the court erred in
concluding that Attorney Popkin effectively repre-
sented him during sentencing. The petitioner also
argues that the court erred by applying the Strickland
prejudice standard, which requires the petitioner to
prove that there is a reasonable probability that the
outcome of the proceeding would have been different;
see Strickland v. Washington, supra, 466 U.S. 694;
instead of presuming prejudice pursuant to the standard
set forth in United States v. Cronic, 466 U.S. 648, 659–60,
104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), and Davis v.
Commissioner of Correction, 319 Conn. 548, 555, 126
A.3d 538 (2015), cert. denied sub nom. Semple v. Davis,
U.S. , 136 S. Ct. 1676, 194 L. Ed. 2d 801 (2016).
We disagree with both assertions.
The following additional facts and procedural history
are relevant. The petitioner’s sentencing hearing
occurred on May 30, 2013. During the hearing, Attorney
Popkin presented mitigation evidence on the petition-
er’s behalf. Attorney Popkin told the court that the
petitioner ‘‘understands and . . . accepts that he is
guilty of murder’’ and that the petitioner did not dispute
that he shot the victim, causing his death. Attorney
Popkin further stated that the petitioner was extremely
remorseful for causing the death of the victim and that
‘‘he never intended in a moral sense’’ for the victim
to pass away. Attorney Popkin then argued that the
petitioner may have acted in a manner that he otherwise
would not have on the night of the incident because
he was under the influence of alcohol and drugs. He
stated that the petitioner would not have acted this way
normally because ‘‘his life experience up until that one
night shows that he had no previous contact with the
criminal justice system.’’ Attorney Popkin then high-
lighted the facts that the petitioner had a difficult
upbringing, including that his family often struggled to
put food on the table and that his stepfather was abusive
to his mother, and that the presentence investigation
report (PSI) showed that he had been a consistent and
dedicated worker throughout the years. Finally, Attor-
ney Popkin told the court that he had spoken with the
petitioner’s father and that his father wanted the court
to know that the petitioner was not a violent person,
that he was generally humble and timid, and that, ‘‘while
this happened and he understands this is what has hap-
pened, that really is not who his son is.’’ Attorney Popkin
asked the court to consider sentencing the petitioner
to thirty-two years of incarceration. Although Attorney
Popkin conceded that the minimum sentence of twenty-
five years was not an appropriate sentence, he argued
that a sentence of thirty-two years would be appropriate
because ‘‘there are certain factors that I think do miti-
gate towards my client’s benefit, including never having
had any contact with the criminal justice system, being
a productive member of society, [and] his honest and
true remorse . . . .’’ The court, while acknowledging
the presence of these mitigating factors, ultimately sen-
tenced the petitioner to thirty-eight years of incarcera-
tion.
During the habeas trial, the petitioner testified that
Attorney Popkin did not speak with his family members,
have a psychologist or social worker interview him, or
mention how many years of incarceration he would ask
of the court. Andrew Meisler, a clinical and forensic
psychologist who had evaluated the petitioner prior to
the habeas trial, testified that he had diagnosed the
petitioner with an ‘‘other specified trauma and stressor
related disorder,’’ which was similar to post-traumatic
stress disorder. Meisler stated that this disorder, which
had been caused by the petitioner’s trauma history, may
have impacted his behavior on the night of the shooting
and that additional information about his diagnosis
would have been relevant to his mental state for pur-
poses of sentencing. He further opined that ‘‘the under-
lying post-traumatic stress symptoms, [the petitioner’s]
trauma history, social forces at play, a dangerous and
fearful environment, [and] the added impact of sub-
stances all combined to diminish his capacity.’’ Meisler
admitted, however, that these factors did not diminish
the petitioner’s capacity to ‘‘form intent per se, but to
manage his behaviors and control his emotional reac-
tions in an appropriate way.’’
Attorney Popkin testified about his preparation for
and strategy at the sentencing hearing. He testified that
he spoke with the petitioner’s father a couple of times
before the petitioner was sentenced but that he was
unable to call the father as a witness because he was
out of town. He further testified that he did not have
a psychological evaluation performed to explore the
petitioner’s mental state because it ‘‘didn’t seem neces-
sary. He seemed to be very cognizant of what was going
on. He seemed to have a very good understanding of
everything. He didn’t present with any . . . issues in
regards to that, so it didn’t seem necessary.’’ In regard
to his decision to ask the court to sentence the peti-
tioner to thirty-two years instead of the minimum of
twenty-five, Attorney Popkin explained that it ‘‘was a
significant crime, no question. The court had sort of
indicated that it was going to be in the . . . high [thir-
ties], so I wanted to have some credibility with the
court and I indicated a number that I was hoping would
. . . express the credibility and hopefully the judge
would adopt it. I knew if I came in at [twenty-five] it
was not really going to be helpful. So I was trying to
mitigate or lessen the sentence as much as I could.’’
The habeas court concluded that Attorney Popkin
did not render deficient performance and that, even if
he did, the petitioner had failed to prove prejudice.
First, the court found that Attorney Popkin was not
deficient because he presented mitigating evidence by
reiterating the petitioner’s lack of involvement with the
criminal justice system, his trauma from observing
domestic violence, his strong work history, and his
remorse. As a result, the court concluded that the proce-
dure outlined in Strickland, rather than Cronic, applied.
Second, the court found that, even assuming Attorney
Popkin performed deficiently, the petitioner could not
prove that he was prejudiced. Specifically, the court
held that ‘‘all of the information presented to this court
during the habeas trial was presented in sum and sub-
stance to Judge Clifford, either through the comments
of Attorney Popkin, the petitioner or the PSI. Judge
Clifford was aware of all the relevant circumstances of
the petitioner, his upbringing, his trauma, his lack of
criminal record, his genuine remorse and his accep-
tance of responsibility.’’ Accordingly, the habeas court
concluded that the petitioner had failed to prove preju-
dice because he had failed to present new, substantial,
noncumulative mitigation evidence that was available
at the time of sentencing but not presented to the sen-
tencing court.
We are guided by the following legal principles.
‘‘Criminal defendants have a constitutional right to
effective assistance of counsel during the sentencing
stage. . . . To establish prejudice, [i]t is not enough
for the [petitioner] to show that the errors had some
conceivable effect on the outcome of the proceedings.
. . . A claimant must demonstrate a reasonable proba-
bility that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.’’
(Internal quotation marks omitted.) Hilton v. Commis-
sioner of Correction, 161 Conn. App. 58, 77, 127 A.3d
1011 (2015), cert. denied, 320 Conn. 921, 132 A.3d
1095 (2016).
As a threshold issue, we address the petitioner’s claim
that the court erred in failing to presume prejudice
pursuant to Cronic and Davis. We conclude that the
petitioner’s claims relating to Attorney Popkin’s repre-
sentation are governed by Strickland, rather than
Cronic and Davis, and that he was not entitled to any
presumption of prejudice.
‘‘In United States v. Cronic, supra, 466 U.S. 659–60,
which was decided on the same day as Strickland,
the United States Supreme Court elaborated on the
following three scenarios in which prejudice may be
presumed: (1) when counsel is denied to a defendant
at a critical stage of the proceeding; (2) when counsel
entirely fails to subject the prosecution’s case to mean-
ingful adversarial testing; and (3) when counsel is called
upon to render assistance in a situation in which no
competent attorney could do so. Notably, the second
scenario constitutes an actual breakdown of the advers-
arial process, which occurs when counsel completely
fails to advocate on a defendant’s behalf.’’ (Internal
quotation marks omitted.) Davis v. Commissioner of
Correction, supra, 319 Conn. 555; see also United States
v. Cronic, supra, 659–60. ‘‘Counsel’s complete failure
to advocate for a defendant . . . such that no explana-
tion could possibly justify such conduct, warrants the
application of Cronic.’’ Davis v. Commissioner of Cor-
rection, supra, 556.
In Davis, our Supreme Court concluded that preju-
dice was presumed when the petitioner’s counsel
‘‘entirely [had] fail[ed] to subject the prosecution’s case
to meaningful adversarial testing . . . .’’ (Internal quo-
tation marks omitted.) Id., 568. During the sentencing
hearing, the court recited the plea agreement’s twenty
year floor and twenty-five year cap and iterated that
defense counsel had a right to argue for the appropriate
sentence. Id., 551. After the court made preliminary
remarks about how ‘‘it was the ‘saddest thing’ to sen-
tence someone for killing another human being because
‘that person’s life is ruined’ and no number of years
will satisfy the victim’s family,’’ the prosecutor intro-
duced the victim’s family members, who described their
loss. Id. The state then asked the court to sentence the
petitioner to the maximum twenty-five year sentence.
Id. Thereafter, defense counsel responded, ‘‘I agree
with everything that everybody said so far, and I don’t
think there’s anything left to say from my part.’’
(Emphasis in original; internal quotation marks omit-
ted.) Id. Defense counsel said nothing else on the peti-
tioner’s behalf, and the court sentenced the petitioner
to twenty-five years of imprisonment. Id.
Our Supreme Court concluded that ‘‘defense coun-
sel’s agreement with the prosecutor cannot realistically
be characterized as a strategic decision properly ana-
lyzed under Strickland. Rather, defense counsel’s con-
duct resembles the complete breakdown in the adver-
sarial process that Cronic envisions. The petitioner’s
sentence was already capped at twenty-five years pursu-
ant to the plea agreement and, thus, assenting to that
sentence did nothing to advance the petitioner’s inter-
ests.’’ Id., 564. Accordingly, the court held that prejudice
would be presumed and that the petitioner had asserted
a valid claim of ineffective assistance of counsel. Id.,
568.
In the present case, Attorney Popkin presented miti-
gation evidence at the petitioner’s sentencing hearing.
He highlighted the petitioner’s remorse, his difficult
upbringing, his positive work history, and his prior lack
of involvement with the criminal justice system.
Although Attorney Popkin did not ask for the twenty-
five year minimum sentence for the strategic purpose
of maintaining credibility with the court, he asked the
court to consider sentencing the petitioner to thirty-
two years of incarceration, which was less than the
petitioner’s maximum exposure, in light of the mitigat-
ing factors. See James v. Commissioner of Correction,
170 Conn. App. 800, 812, 156 A.3d 89 (‘‘[O]ur review
of an attorney’s performance is especially deferential
when his or her decisions are the result of relevant
strategic analysis. . . . Thus, [a]s a general rule, a
habeas petitioner will be able to demonstrate that trial
counsel’s decisions were objectively unreasonable only
if there [was] no . . . tactical justification for the
course taken.’’ (Internal quotation marks omitted.)),
cert. denied, 325 Conn. 926, 168 A.3d 494 (2017). Attor-
ney Popkin, therefore, did advocate on the petitioner’s
behalf during the sentencing hearing. Accordingly, the
habeas court correctly concluded that no presumption
of prejudice was justified and that Strickland, rather
than Cronic, controls.
We now turn to the petitioner’s claim that the court
improperly concluded that he had failed to prove he was
prejudiced by Attorney Popkin’s performance. After a
careful review of the record, we conclude that the
habeas court did not err in finding that the petitioner has
failed to prove prejudice.3 As the habeas court observed,
‘‘all of the information presented to this court during
the habeas trial, was presented in sum and substance
to Judge Clifford, either through the comments of Attor-
ney Popkin, the petitioner or the PSI.’’4 The trial court,
after referencing these mitigating factors, sentenced the
petitioner to thirty-eight years of incarceration, stating
that it had ‘‘come up with a number . . . that . . . is
appropriate under all the circumstances here, the seri-
ousness of this, the loss to the victims, looking at the
background of this defendant and he’s going to spend,
obviously, the majority of his life in prison . . . .’’
Although the petitioner argues that he was prejudiced
by Attorney Popkin’s failure to introduce additional
mitigation evidence concerning his mental health, there
simply is no evidence in the record indicating that the
court would have given the petitioner a lesser sentence
if such additional evidence, or other mitigation evidence
that supplemented what was in the PSI, had been pre-
sented.5 In light of the strength of the state’s case, the
seriousness of the crime, and the court’s awareness
of the pertinent mitigation evidence, there was not a
reasonable probability that the petitioner would have
received a lesser sentence but for any deficient perfor-
mance by Attorney Popkin. See Hilton v. Commis-
sioner of Correction, supra, 161 Conn. App. 77. Accord-
ingly, we conclude that the habeas court properly
concluded that his ineffective assistance of counsel
claim regarding Attorney Popkin’s representation fails.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The state also charged the petitioner with carrying a pistol without a
permit in violation of General Statutes § 29-35 and possession of a controlled
substance in violation of General Statutes (Rev. to 2009) § 21a-279 (c).
Following the petitioner’s plea of guilty, the state entered a nolle prosequi
as to these charges.
2
We note also that grainy videos of the incident, which indistinctly show
the shooting, were entered into evidence.
3
The habeas court also concluded that Attorney Popkin did not render
deficient performance when representing the petitioner during the sentenc-
ing hearing. In light of our conclusion that the habeas court did not err in
concluding that the petitioner failed to prove prejudice, we need not address
whether Attorney Popkin’s performance was deficient. See Strickland v.
Washington, supra, 466 U.S. 697 (‘‘[i]f it is easier to dispose of an ineffec-
tiveness claim on the ground of lack of sufficient prejudice . . . that course
should be followed’’).
4
The PSI contained information concerning (1) the petitioner’s upbringing,
including that he had been significantly impacted by the domestic violence
that he witnessed and that his family had struggled financially, (2) his positive
education and work records, (3) his feelings of depression, (4) his casual
drug and alcohol use, including the facts that he had smoked marijuana,
used ecstasy, and was intoxicated on the night of the incident, (5) his lack
of prior involvement with the criminal justice system, and (6) his family
members’ statements that he had never been a violent person. The PSI
also noted that the victim’s mother had asked that the court sentence the
petitioner to the maximum penalty allowed under the plea agreement. The
PSI recommended that the petitioner be sentenced to a period of incarcera-
tion but did not provide a recommendation for the number of years of
incarceration to which he should be sentenced.
5
In support of this argument, the petitioner highlights the fact that Meisler
had diagnosed him with several mental health conditions as a result of the
traumas he experienced during his childhood. Meisler had opined that these
traumas, along with his post-traumatic stress symptoms, explained the peti-
tioner’s ‘‘exaggerated response to fear’’ and helped ‘‘shed a light on his
behavior in a way that had not been done so previously.’’ We disagree with
the petitioner that such additional mitigation evidence would have enabled
him to demonstrate a reasonable probability that, but for Attorney Popkin’s
alleged unprofessional errors, the result of the proceeding would have been
different. As the habeas court observed, the trial court was aware of the
petitioner’s recitation of his trauma history from the PSI, and any additional
trauma history that the petitioner introduced during the habeas trial would
have been evidence that ‘‘merely supplements or is cumulative to that which
was presented to the sentencing judge.’’ Moreover, although Meisler stated
that the petitioner’s post-traumatic stress symptoms and trauma history
diminished his capacity, Meisler opined that they diminished the petitioner’s
capacity with respect to only his ability to manage his behaviors and control
his emotional reactions in an appropriate way; they did not diminish his
capacity to form the intent to kill. Accordingly, we are unpersuaded that
additional mitigation evidence concerning the petitioner’s mental health
would have caused the trial court to give the petitioner a lesser sentence.