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KAREEM LEACH v. COMMISSIONER
OF CORRECTION
(AC 44228)
Bright, C. J., and Alexander and Suarez, Js.
Syllabus
The petitioner, who had been convicted, following a jury trial, of robbery
in the first degree and assault in the first degree, sought a writ of
habeas corpus, claiming that his trial counsel, R, had provided ineffective
assistance as a result of R’s failure to meaningfully explain the state’s
plea offer and to review and explain certain surveillance video evidence
prior to plea negotiations and trial. Following a hearing, the habeas court
denied the petition. Thereafter, the habeas court denied the petition for
certification to appeal, and the petitioner appealed to this court. Held
that the habeas court did not abuse its discretion in denying the petition
for certification to appeal, the petitioner having failed to demonstrate
that his claims involved issues that were debatable among jurists of
reason, that a court could resolve the issues in a different manner or
that the questions raised were adequate to deserve encouragement to
proceed further: after a thorough review of the record and briefs, and
based on the underlying facts as found by the habeas court, this court
concluded that the habeas court properly found that R did not provide
ineffective assistance of counsel, as the habeas court credited R’s testi-
mony that he explained the state’s plea offer of six years of incarceration
and that the petitioner understood the terms of the offer, the court did
not credit the petitioner’s testimony that he misunderstood the state’s
offer, the court found that R was generally aware of what the surveillance
video depicted prior to viewing the video, R’s failure to view the video
before trial did not negate his pretrial discussions with the petitioner
regarding the content of the video, and it was the petitioner who initially
made R aware of the existence of the video; accordingly, R provided
the petitioner with adequate information on which he could make an
informed decision as to whether to accept or reject the state’s plea offer.
Argued February 8—officially released April 12, 2022
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, Chaplin, J.; judgment denying
the petition; thereafter, the court denied the petition
for certification to appeal, and the petitioner appealed
to this court. Appeal dismissed.
Peter G. Billings, assigned counsel, with whom, on
the brief, was Stephanie K. Toronto, for the appellant
(petitioner).
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were Paul J. Ferencek, state’s
attorney, and Juliana Waltersdorff, assistant state’s
attorney, for the appellee (respondent).
Opinion
ALEXANDER, J. The petitioner, Kareem Leach, appeals
from the judgment of the habeas court denying his
petition for a writ of habeas corpus. On appeal, the
petitioner claims that the court (1) abused its discretion
by denying his petition for certification to appeal and
(2) improperly concluded that his trial counsel had not
provided ineffective assistance. We disagree that the
court abused its discretion in denying the petition for
certification to appeal and, accordingly, dismiss the
appeal.
The following facts and procedural history are rele-
vant to this appeal. The petitioner was involved in an
incident that occurred on January 13, 2013, and, after
a jury trial, he was convicted of robbery in the first
degree with a deadly weapon in violation of General
Statutes § 53a-134 (a) (2), and assault in the first degree
by means of the discharge of a firearm in violation of
General Statutes § 53-59 (a) (5). State v. Leach, 165
Conn. App. 28, 29?31, 138 A.3d 445, cert. denied, 323
Conn. 948, 169 A.3d 792 (2016). He was sentenced to
a total effective term of fourteen years of imprisonment
and six years of special parole. Id., 31.
The petitioner initiated this habeas action and, on
January 16, 2019, filed an amended petition which con-
tained one count alleging ineffective assistance of his
criminal trial counsel, Attorney Neal Rogan. Relevant
to this appeal, the petitioner claimed that Rogan failed
to (1) meaningfully explain the state’s plea offer to him
and (2) review and explain certain surveillance video
evidence prior to trial.
A trial on the habeas petition was held on January 31,
2020. On July 2, 2020, the court issued a memorandum
of decision in which it denied the habeas petition, find-
ing that the petitioner had failed to demonstrate that
Rogan had rendered deficient performance. On July 17,
2020, the petitioner filed a petition for certification to
appeal, which the court denied. This appeal followed.
I
We first address the petitioner’s claim that the court
abused its discretion in denying his petition for certifica-
tion to appeal. We disagree.
General Statutes § 52-470 (g) provides: ‘‘No appeal
from the judgment rendered in a habeas corpus pro-
ceeding brought by or on behalf of a person who has
been convicted of a crime in order to obtain such per-
son’s release may be taken unless the appellant, within
ten days after the case is decided, petitions the judge
before whom the case was tried or, if such judge is
unavailable, a judge of the Superior Court designated
by the Chief Court Administrator, to certify that a ques-
tion is involved in the decision which ought to be
reviewed by the court having jurisdiction and the judge
so certifies.’’
‘‘As our Supreme Court has explained, one of the
goals our legislature intended by enacting this statute
was to limit the number of appeals filed in criminal
cases and [to] hasten the final conclusion of the criminal
justice process . . . . [T]he legislature intended to dis-
courage frivolous habeas appeals. . . . [Section] 52-
470 [g] acts as a limitation on the scope of review, and
not the jurisdiction, of the appellate tribunal. . . .
‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the [disposition] of his [or her] petition for
[a writ of] habeas corpus only by satisfying the two-
pronged test enunciated by our Supreme Court in
Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994),
and adopted in Simms v. Warden, 230 Conn. 608, 612,
646 A.2d 126 (1994). First, he [or she] must demonstrate
that the denial of his [or her] petition for certification
constituted an abuse of discretion. . . . Second, if the
petitioner can show an abuse of discretion, he [or she]
must then prove that the decision of the habeas court
should be reversed on its merits. . . .
‘‘To prove an abuse of discretion, the petitioner must
demonstrate that the [resolution of the underlying claim
involves issues that] are debatable among jurists of
reason; that a court could resolve the issues [in a differ-
ent manner]; or that the questions are adequate to
deserve encouragement to proceed further. . . .
‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria . . . adopted by [our Supreme
Court] for determining the propriety of the habeas
court’s denial of the petition for certification.’’ (Foot-
note omitted; internal quotation marks omitted.) Harris
v. Commissioner of Correction, 205 Conn. App. 837,
843?44, 257 A.3d 343, cert. denied, 339 Conn. 905, 260
A.3d 484 (2021).
The petitioner requested certification to appeal the
following issues, inter alia: ‘‘Whether the habeas court
erred in finding that [the petitioner] did not prove inef-
fective assistance of counsel as to [Rogan] in that . . .
Rogan failed to meaningfully explain the state’s plea
offer . . . [and] Rogan failed to review surveillance
evidence to prepare for trial . . . .’’1
For the reasons set forth in part II of this opinion,
we conclude that the petitioner has failed to demon-
strate that (1) his claims involve issues that are debat-
able among jurists of reason, (2) a court could resolve
the issues in a different manner, or (3) the questions are
adequate to deserve encouragement to proceed further.
See Harris v. Commissioner of Correction, supra, 205
Conn. App. 844. Accordingly, we conclude that the habeas
court did not abuse its discretion in denying the petition
for certification to appeal.
II
Turning to his substantive claims on appeal, the peti-
tioner asserts that the court improperly concluded that
Rogan had not provided ineffective assistance of coun-
sel. Specifically, the petitioner alleged ineffective assis-
tance as a result of Rogan’s failure to (1) meaningfully
explain the state’s plea offer to him, and (2) review and
explain certain surveillance video evidence prior to plea
negotiations and trial.
We begin by setting forth our standard of review and
the legal principles governing ineffective assistance of
counsel claims. ‘‘Our standard of review of a habeas
court’s judgment on ineffective assistance of counsel
claims is well settled. In a habeas appeal, this court
cannot disturb the underlying facts found by the habeas
court unless they are clearly erroneous, but our review
of whether the facts as found by the habeas court consti-
tuted a violation of the petitioner’s constitutional right
to effective assistance of counsel is plenary.’’ (Internal
quotation marks omitted.) Humble v. Commissioner of
Correction, 180 Conn. App. 697, 703?704, 184 A.3d 804,
cert. denied, 330 Conn. 939, 195 A.3d 692 (2018).
‘‘In Strickland v. Washington, [466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States
Supreme Court established that for a petitioner to pre-
vail on a claim of ineffective assistance of counsel, he
[or she] must show that counsel’s assistance was so
defective as to require reversal of [the] conviction
. . . . That requires the petitioner to show (1) that
counsel’s performance was deficient and (2) that the
deficient performance prejudiced the defense. . . .
Unless a [petitioner] makes both showings, it cannot
be said that the conviction . . . resulted from a break-
down in the adversary process that renders the result
unreliable. . . . Because both prongs . . . must be
established for a habeas petitioner to prevail, a court
may dismiss a petitioner’s claim if he [or she] fails to
meet either prong. . . .
‘‘To satisfy the performance prong [of the Strickland
test] the petitioner must demonstrate that his attorney’s
representation was not reasonably competent or within
the range of competence displayed by lawyers with
ordinary training and skill in the criminal law. . . . [A]
court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable pro-
fessional assistance . . . .’’ (Internal quotation marks
omitted.) Anderson v. Commissioner of Correction,
201 Conn. App. 1, 12, 242 A.3d 107, cert. denied, 335
Conn. 983, 242 A.3d 105 (2020).
A
The petitioner first argues that the habeas court
improperly denied his habeas petition because Rogan
rendered deficient performance when he failed to mean-
ingfully explain the state’s plea offer to him prior to
the petitioner rejecting the offer and proceeding to trial.
We disagree.
The following additional facts, as found by the habeas
court, are relevant to our resolution of this claim. During
pretrial plea negotiations, the state extended an offer
of twelve years of incarceration, execution suspended
after six years, followed by five years of probation.
The petitioner rejected the state’s offer and elected to
proceed to trial.
‘‘At [the habeas] trial, the petitioner testified that
he briefly discussed the state’s offer with [Rogan]. He
testified that, as a result of that discussion, he under-
stood the state’s offer to require him to serve twelve
years [of] incarceration. He testified that he did not
understand that it meant that he would agree to serve
six years [of] incarceration. He testified that, had he
understood the offer correctly, he would have accepted
the state’s offer, instead of going to trial. The petitioner
further testified that he had prior convictions, at least
one of which included a split sentence . . . .
‘‘[Rogan] testified that he discussed the offer at length
with the petitioner, who was adamant that he . . .
would not take any offer and that he wanted a trial.
For that reason, the case proceeded on a speedy trial
basis. He testified that he detailed for the petitioner
the state’s plea offer and the maximum exposure the
petitioner faced if he went to trial. [Rogan] testified
that he explained that the offer included six years [of]
incarceration to the petitioner. He testified that the
petitioner had familiarity with the criminal justice sys-
tem and that he had no doubt that the petitioner under-
stood the terms of the state’s plea offer.
‘‘The court credits [Rogan’s] testimony that the peti-
tioner understood the state’s plea offer and that they
discussed it in great detail. The court does not credit
the petitioner’s testimony that he understood the state’s
plea offer to include twelve . . . years of incarceration,
instead of six . . . years of incarceration. The court
finds that the petitioner failed to provide sufficient cred-
ible evidence to demonstrate that [Rogan] failed to
meaningfully explain the state’s plea offer.’’
After our thorough review of the record and briefs,
and on the basis of the underlying facts found by the
habeas court, we agree with the habeas court that
Rogan meaningfully explained the state’s plea offer to
the petitioner. The court’s conclusion is based on a
credibility determination as well as a proper application
of the law. ‘‘[I]t is well established that a reviewing
court is not in the position to make credibility determi-
nations. . . . This court does not retry the case or eval-
uate the credibility of the witnesses. . . . Rather, we
must defer to the [trier of fact’s] assessment of the
credibility of the witnesses based on its firsthand obser-
vation of their conduct, demeanor and attitude.’’ (Inter-
nal quotation marks omitted.) Martinez v. Commis-
sioner of Correction, 147 Conn. App. 307, 312, 82 A.3d
666 (2013), cert. denied, 311 Conn. 917, 85 A.3d 652
(2014).
The court credited Rogan’s testimony that he
explained the state’s offer of six years of incarceration
and that the petitioner understood the terms of the
state’s plea offer. The court explicitly stated that it did
not credit the petitioner’s testimony that he understood
the state’s offer was to serve twelve years of incarcera-
tion. On the basis of these credibility determinations,
the court found that the petitioner had failed to prove
that Rogan rendered deficient performance. The record
supports the court’s conclusion that Rogan meaning-
fully explained the plea offer to the petitioner, that the
petitioner understood Rogan’s explanation of the plea
agreement, and that the petitioner rejected the offer
and demanded a speedy trial. Therefore, the petitioner’s
claim must fail.
B
The petitioner next argues that Rogan rendered defi-
cient performance by failing to review and explain cer-
tain surveillance video evidence2 prior to pretrial plea
negotiations and trial. Specifically, the petitioner asserts
that Rogan’s representation was deficient because he
‘‘allowed the petitioner to reject the pretrial plea offer
without either himself or the petitioner being aware of
what evidence was contained in the surveillance video’’
and that Rogan’s failure to meaningfully explain the
surveillance video to the petitioner ‘‘resulted in the peti-
tioner going to trial under the mistaken impression that
the state did not have significant evidence against him.’’
In its memorandum of decision, the court found the
following relevant facts: ‘‘[Rogan] testified that he met
with the petitioner several times to discuss his case.
. . . Rogan testified that the petitioner made him aware
of the surveillance video. He testified that there were
issues opening the video file and that he was not able
to view the video until at trial, but before any pertinent
testimony was given. [Rogan] further testified that he
was generally aware of what the video depicted prior
to viewing the video. He then testified that he and an
associate attorney reviewed and discussed at length the
implications of the surveillance video with the peti-
tioner prior to any witness testifying about the surveil-
lance video.
‘‘Upon review of the testimony and the exhibits, the
court finds that the petitioner failed to provide credible
evidence that [Rogan] failed to discuss or meaningfully
explain the state’s evidence prior to trial. . . . Regard-
ing the surveillance video, both the petitioner and
[Rogan] testified that the petitioner did not have occa-
sion to view the video prior to trial. The court credits
[Rogan’s] testimony as to the inability to open the video
file. The court finds that the petitioner and [Rogan]
viewed the video prior to any evidence being introduced
regarding the video. The court finds that [Rogan’s] fail-
ure to show the video to the petitioner prior to trial does
not negate his pretrial discussions with the petitioner
regarding the content of the video prior to any evidence
being taken regarding the video. For those reasons, the
court finds that the petitioner failed to provide sufficient
credible evidence to demonstrate that [Rogan] failed
to meaningfully explain the state’s evidence prior to
trial.’’ (Emphasis added.)
The court concluded by determining that ‘‘[Rogan]
was generally aware of what was depicted in the video
prior to reviewing the video at trial and that he and an
associate attorney reviewed the video at length with
the petitioner prior to the presentation of any evidence
regarding the video . . . to the jury. For these reasons,
the court finds that [Rogan] failed to review the surveil-
lance footage prior to trial, however, such failure did
not cause [Rogan’s] representation of the petitioner at
his underlying criminal trial to fall below an objective
standard of reasonableness. Therefore, the petitioner’s
claim must fail.’’
We next set forth the legal principles relevant to claims
of ineffective assistance of counsel in the plea bargain
context. ‘‘Pretrial negotiations implicating the decision
whether to plead guilty is a critical stage in criminal
proceedings . . . . Although this decision is ultimately
made by the [petitioner], the [petitioner’s] attorney
must make an informed evaluation of the options and
determine which alternative will offer the [petitioner]
the most favorable outcome.’’ (Citation omitted; inter-
nal quotation marks omitted.) Sanders v. Commis-
sioner of Correction, 169 Conn. App. 813, 825, 153 A.3d 8
(2016), cert. denied, 325 Conn. 904, 156 A.3d 536 (2017).
‘‘[C]ounsel performs effectively and reasonably when
he . . . provides [the petitioner] with adequate infor-
mation and advice upon which the [petitioner] can make
an informed decision as to whether to accept the state’s
plea offer. . . . We are mindful that [c]ounsel’s conclu-
sion as to how best to advise a client in order to avoid,
on the one hand, failing to give advice and, on the other,
coercing a plea enjoys a wide range of reasonableness
. . . . Accordingly, [t]he need for recommendation
depends on countless factors, such as the [petitioner’s]
chances of prevailing at trial, the likely disparity in
sentencing after a full trial compared to the guilty plea
. . . whether [the] [petitioner] has maintained his inno-
cence, and the [petitioner’s] comprehension of the vari-
ous factors that will inform [his] plea decision.’’ (Inter-
nal quotation marks omitted.) Salmon v. Commissioner
of Correction, 178 Conn. App. 695, 710–11, 177 A.3d 566
(2017).
Further, ‘‘[t]here is no per se rule requiring specific
conduct of defense attorneys during plea negotiations.
. . . Instead, we must determine whether, in light of
all the circumstances, the identified acts or omissions
were outside the wide range of professionally compe-
tent assistance. . . . The parameters of appropriate
advice required during plea negotiations are determined
by a fact specific inquiry in which we consider whether
an attorney’s performance fell below an objective stan-
dard of reasonableness.’’ (Citations omitted; footnote
omitted; internal quotation marks omitted.) Moore v.
Commissioner of Correction, 338 Conn. 330, 341–42,
258 A.3d 40 (2021).
After our thorough review of the record and briefs,
and on the basis of the underlying facts found by the
habeas court, we agree with the court’s conclusion that
Rogan did not render deficient performance by failing
to view the surveillance video evidence prior to the
petitioner’s rejection of the state’s plea offer and the
start of trial. Notably, it was the petitioner who initially
made Rogan aware of the existence of such video. The
court found that Rogan generally was aware of what
the video depicted prior to viewing the video and that
Rogan’s failure to view the video before trial did not
negate his pretrial discussions with the petitioner
regarding the content of the video. Therefore, although
Rogan did not view the video prior to the start of trial,
he was aware of and discussed the general contents of
the video with the petitioner prior to trial and in relation
to the state’s plea offer.3 Despite Rogan’s pretrial discus-
sions with him, including discussions regarding the sur-
veillance video, the petitioner chose to reject the state’s
plea offer and proceed to trial. The record supports the
habeas court’s conclusion that the petitioner failed to
demonstrate that Rogan rendered deficient perfor-
mance by not viewing the surveillance video prior to
trial because, given the facts and circumstances of the
petitioner’s case, Rogan provided the petitioner with
adequate information with which he could make an
informed decision as to whether to accept or reject the
state’s plea offer.
As to his claims of ineffective assistance of counsel,
the petitioner has failed to demonstrate that the deci-
sion of the habeas court should be reversed on its mer-
its. As indicated in part I of this opinion, the petitioner
has not established that (1) his claims involve issues
that are debatable among jurists of reason, (2) a court
could resolve the issues in a different manner, or (3)
the questions are adequate to deserve encouragement
to proceed further. See Harris v. Commissioner of
Correction, supra, 205 Conn. App. 844. Accordingly, we
conclude that the petitioner has failed to demonstrate
that the court abused its discretion in denying his peti-
tion for certification to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The petitioner also requested certification to appeal ‘‘[w]hether the
habeas court erred in finding that [the petitioner] did not prove ineffective
assistance of counsel as to [Rogan] in that . . . Rogan failed to meaningfully
explain the state’s evidence . . . Rogan failed to properly cross-examine
witnesses . . . Rogan failed to move to preclude surveillance video; and/
or . . . Rogan failed to object to improper jury instructions.’’ None of these
issues has been raised on appeal.
2
The surveillance video was taken from a business that was located near
the crime scene. At the petitioner’s criminal trial, the state argued that the
surveillance video depicted the petitioner and his codefendant, Anthony
Jean Pierre, near the scene of the crime, but it did not capture or record
any part of the crime itself. At the habeas trial, the petitioner testified that
he could not identify anyone in the video footage, including himself, due
to the poor quality of the video. Rogan similarly testified that the video was
of poor quality and that he had not objected to the use of the video at the
petitioner’s criminal trial because no one was clearly identified in the video.
3
Although the petitioner contends that Rogan’s failure to view the surveil-
lance video resulted in the petitioner choosing to proceed to trial ‘‘under
the mistaken impression that the state did not have significant evidence
against him,’’ the parties do not dispute that the video was poor quality
and did not affirmatively identify the petitioner. Therefore, the petitioner’s
contention that viewing the poor quality surveillance video would have
altered his impression of the state’s evidence against him is unavailing,
especially in light of Rogan’s testimony that the petitioner ‘‘was adamant
that he . . . would not take any offer and that he wanted to go to trial.’’