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***********************************************
JOSEPH MOORE v. COMMISSIONER
OF CORRECTION
(SC 20252)
Robinson, C. J., and McDonald, D’Auria, Kahn and Ecker, Js.
Syllabus
The petitioner, who had been convicted of robbery in the first degree and
the commission of a class B felony with a firearm, sought a writ of
habeas corpus, claiming that his trial counsel, O, had rendered ineffective
assistance by failing to adequately advise him during pretrial negotiations
when he had purportedly expressed a misunderstanding of the law
regarding his maximum sentencing exposure. The petitioner had
rejected three plea offers, all of which called for him to plead guilty to
robbery in the first degree in exchange for either a ten or fifteen year
prison sentence, and proceeded to trial under the belief that the state
could prove only that he was guilty of robbery in the third degree and
that the maximum sentence he deserved for that offense was five years’
imprisonment. The petitioner claimed that O’s performance was defi-
cient insofar as O had failed to advise him that, if he were convicted
only of the lesser included offense of robbery in the third degree, his
maximum sentence would nonetheless be as severe as or exceed the
sentences contained in the plea offers due to certain sentence enhance-
ments with which the petitioner also had been charged. The habeas
court rendered judgment denying the habeas petition, concluding, inter
alia, that the petitioner had failed to meet his burden of establishing
that O did not advise him of the maximum sentencing exposure for
robbery in the third degree with enhancements. The trial court thereafter
denied the petitioner’s petition for certification to appeal, and the peti-
tioner appealed to the Appellate Court, which dismissed the appeal. On
the granting of certification, the petitioner appealed to this court. Held
that the petitioner could not prevail on his ineffective assistance claim
because he failed to establish that O had not advised him about his
maximum sentencing exposure for a conviction of robbery in the third
degree, and, accordingly, the Appellate Court properly dismissed the
petitioner’s appeal; although counsel has an obligation to address an
expressed, material misunderstanding of law that appears to influence
a defendant’s decision whether to accept a plea offer or to proceed to
trial, neither the petitioner nor O could recall whether O specifically
advised him about his potential exposure for robbery in the third degree,
and the habeas court expressly credited O’s testimony that he was
reasonably certain that he would have told the petitioner that, even if
he were convicted of robbery in the third degree, he would face a
sentence of more than ten years’ imprisonment in light of the sen-
tence enhancements.
Argued September 11—officially released March 15, 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, Cobb, J.; judgment deny-
ing the petition; thereafter, the court, Cobb, J., denied
the petition for certification to appeal, and the peti-
tioner appealed to the Appellate Court, Lavine, Keller
and Elgo, Js., which dismissed the appeal, and the peti-
tioner, on the granting of certification, appealed to this
court. Affirmed.
Michael W. Brown, assigned counsel, for the appel-
lant (petitioner).
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were Matthew C. Gedansky,
state’s attorney, and Angela R. Macchiarulo, senior
assistant state’s attorney, for the appellee (respondent).
Opinion
ROBINSON, C. J. The principal issue in this certified
appeal is whether a criminal defense attorney who is
aware that his or her client has a legal misunderstanding
material to the decision of whether to accept a plea
bargain has a duty to provide advice to address that
misunderstanding. The petitioner, Joseph Moore, appeals,
upon our grant of his petition for certification,1 from
the judgment of the Appellate Court dismissing his
appeal from the judgment of the habeas court. The
habeas court denied his petition for a writ of habeas
corpus, in which he claimed that he had received inef-
fective assistance of counsel during plea negotiations
prior to his criminal trial at which he was convicted of,
among other crimes, robbery in the first degree. Moore
v. Commissioner of Correction, 186 Conn. App. 254,
255–58, 270, 199 A.3d 594 (2018). On appeal, the peti-
tioner claims that he did not receive effective assistance
of counsel because his trial attorney did not adequately
advise him of his maximum sentencing exposure if con-
victed at trial of the lesser included offense of robbery
in the third degree. Because the petitioner failed to
meet his burden of proving that trial counsel did not
advise him about his maximum exposure for a convic-
tion of the lesser included offense of robbery in the
third degree, we conclude that the petitioner cannot
prevail on his claim of ineffective assistance of trial
counsel. Accordingly, we affirm the judgment of the
Appellate Court.
The record reveals the following relevant facts and
procedural history, much of which is aptly recited in
the Appellate Court’s opinion in this case. The petitioner
was arrested in 2009 after entering a New Alliance Bank
and demanding cash from the bank employees. Id., 256–
57. He was charged with robbery in the first degree
in violation of General Statutes § 53a-134 (a) (4) and
commission of a class B felony with a firearm in viola-
tion of General Statutes § 53-202k. The state also filed
a part B information charging the petitioner with (1)
committing the offenses while on release in violation
of General Statutes § 53a-40b, and (2) being a persistent
felony offender in violation of General Statutes § 53a-
40 (f). Id., 256. At his criminal trial, the petitioner did
not dispute having robbed the bank; his only contention
was that he did not write a note to the bank teller
stating ‘‘ ‘[g]ive cash. I have gun.’ ’’ Id. The petitioner’s
theory at trial was that he did not write the note and,
therefore, should be convicted of only the lesser
included offense of robbery in the third degree.2 See
id., 258 and n.2. The petitioner was, however, convicted
of all the crimes charged after a jury trial and sentenced
to a total effective term of thirty-four years of incarcera-
tion. Id., 256. The Appellate Court subsequently affirmed
the petitioner’s conviction on direct appeal. State v.
Moore, 141 Conn. App. 814, 825, 64 A.3d 787, cert.
denied, 309 Conn. 908, 68 A.3d 663 (2013).
In 2016, the petitioner filed an amended petition for
a writ of habeas corpus, alleging that his trial counsel,
Douglas A. Ovian, rendered ineffective assistance when
he failed to advise the petitioner adequately during pre-
trial plea negotiations. Moore v. Commissioner of Cor-
rection, supra, 186 Conn. App. 257–58. ‘‘At the habeas
trial on September 15, 2016, the habeas court heard
testimony from Matthew C. Gedansky, the state’s attor-
ney in the petitioner’s criminal case, [Ovian], and the
petitioner. . . . There was testimony that three plea
offers were made to the petitioner: an offer for ten
years to serve with five years of special parole; an offer
for ten years to serve with two years of special parole;
and an offer made at a judicial pretrial conference with
Sullivan, J., offering the petitioner fifteen years to serve
if he pleaded guilty to one count of robbery in the first
degree.3 Ovian testified that his notes indicated that he
advised the petitioner to accept the offers and that he
would never have told the petitioner to take this case
to trial. In addition, Gedansky testified that he recalled
Ovian telling him that Ovian had advised the petitioner
to take the offer of ten years to serve with two years [of]
special parole. The petitioner testified that he rejected
these offers because he had faith the state might present
him with a more favorable offer, and that he believed
he deserved only five years of imprisonment. There
also was differing testimony between Ovian and the
petitioner with respect to what Ovian advised as to the
potential maximum sentence the petitioner faced if he
was found guilty of all the charges, and whether he
advised the petitioner of the potential maximum sen-
tence he faced if he prevailed on a robbery in the third
degree theory at trial.4
‘‘In a memorandum of decision filed [on] January 10,
2017, the habeas court denied the amended petition for
a writ of habeas corpus, finding that the petitioner had
failed to prove deficient performance or prejudice. In
particular, the habeas court found that ‘Ovian had many
discussions with the petitioner throughout the course
of his representation,’ and that Ovian ‘went over the
state’s evidence with [the petitioner] and he advised
the petitioner to take each of the deals as they were
offered given the circumstances.’ Additionally, the
habeas court found that Ovian ‘informed the petitioner
that he was facing a maximum exposure of forty-eight
and one-half years if convicted of robbery in the first
degree due to the sentence enhancements the petitioner
faced.’ The habeas court concluded that Ovian relayed
the offers to the petitioner, properly explained the
state’s evidence to him, and adequately warned him of
the exposure he could face should he choose to go to
trial. On January 17, 2017, the petitioner filed a petition
for certification to appeal, which was later denied by
the habeas court.’’ (Footnotes in original; footnote omit-
ted.) Id., 258–60.
The petitioner appealed from the denial of his petition
for certification to appeal to the Appellate Court, claim-
ing that the habeas court improperly rejected his claim
that Ovian’s ‘‘performance was deficient for failing to
advise him of the maximum sentence he faced if he
was successful in proving at trial that he was guilty only
of committing the lesser included offense of robbery
in the third degree.’’ Id., 261. The Appellate Court
declined to conclude that Ovian’s performance was defi-
cient as a result of his alleged ‘‘failure to inform the
petitioner of the potential total sentence exposure he
faced if he succeeded on the unlikely theory of [defense
that the state could only] prov[e] robbery in the third
degree . . . .’’ Id., 268. Instead, the Appellate Court
held that the information and advice that Ovian did
provide were adequate to allow the petitioner to make
an informed decision regarding the state’s plea offers
and that any failure to further explain the consequences
of proceeding to trial fell outside the objective standard
of reasonableness of counsel’s performance. Id., 268–
69. In so concluding, the Appellate Court opined that
criminal defense attorneys should not be required ‘‘to
advise their clients on the total sentence exposure they
face for each and every possible defense scenario
. . . .’’ Id., 265. Finally, in holding that Ovian’s advice
was appropriate, the Appellate Court observed that any
effort made by Ovian to correct the petitioner’s mis-
taken belief that he would receive a sentence of less
than ten years if he had been convicted of the lesser
included offense of robbery in the third degree would
have only encouraged his mistaken belief. Id., 269 n.10.
Accordingly, the Appellate Court rendered judgment
dismissing the appeal. Id., 270. This certified appeal
followed. See footnote 1 of this opinion.
On appeal, the petitioner claims that, although Ovian
rendered competent advice in clearly conveying all pre-
trial offers to the petitioner and advising him to accept
those offers, his assistance was nevertheless ineffective
because he failed to advise the petitioner on his maxi-
mum sentencing exposure for robbery in the third
degree. The petitioner argues that Ovian’s performance
was ineffective because he failed to address the peti-
tioner’s expressed misunderstanding of the law regard-
ing his sentencing exposure for robbery in the third
degree at trial, which meant that the petitioner lacked
the appropriate context for deciding whether to accept
a plea or to go to trial. The petitioner argues, and the
habeas court found, that the petitioner’s choice to pro-
ceed to trial was a result of his mistaken belief that he
would be exposed only to a sentence of less than ten
years if convicted of robbery in the third degree. As a
result, the petitioner argues, his choice to proceed to
trial was ‘‘irrational and essentially suicidal given the
circumstances.’’
In response, the respondent, the Commissioner of
Correction, argues that Ovian’s advice to accept the
plea offers was constitutionally sufficient because he
made clear to the petitioner the low probability of
acquittal for robbery in the first degree. The respondent
asserts that the petitioner’s decision to proceed to trial
was a last chance ‘‘ ‘Hail Mary’ ’’ to avoid a sentence for
robbery in the first degree. Furthermore, the respondent
contends that the petitioner failed to meet his burden
of proving that Ovian did not advise him that a sentence
for a conviction of robbery in the third degree would
still exceed the plea offers presented to the petitioner.
Having considered the parties’ arguments, we agree
with the petitioner that trial counsel has a duty to cor-
rect a defendant’s expressed, material misunderstanding
of the law that influences his decision whether to accept
a plea. Nevertheless, we conclude that the Appellate
Court properly upheld the habeas court’s denial of the
petition for certification to appeal in light of the habeas
court’s articulation, which this court sua sponte ordered
after hearing oral argument,5 clarifying that the peti-
tioner had failed to prove that Ovian did not advise him
in this regard.
We begin by setting forth the applicable standard of
review. ‘‘The habeas court is afforded broad discretion
in making its factual findings, and those findings will
not be disturbed unless they are clearly erroneous. . . .
The application of [the pertinent legal standard to] the
habeas court’s factual findings . . . however, presents
a mixed question of law and fact, which is subject to
plenary review.’’ (Internal quotation marks omitted.)
Ebron v. Commissioner of Correction, 307 Conn. 342,
351, 53 A.3d 983 (2012), cert. denied sub nom. Arnone
v. Ebron, 569 U.S. 913, 133 S. Ct. 1726, 185 L. Ed. 2d
802 (2013).
‘‘Faced with the habeas court’s denial of certification
to appeal, a petitioner’s first burden is to demonstrate
that the habeas court’s ruling constituted an abuse of
discretion. . . . A petitioner may establish an abuse of
discretion by demonstrating that the issues are debat-
able among jurists of reason . . . [the] court could
resolve the issues [in a different manner] . . . or . . .
the questions are adequate to deserve encouragement
to proceed further. . . . The required determination
may be made on the basis of the record before the
habeas court and the applicable legal principles. . . .
If the petitioner succeeds in surmounting that hurdle,
the petitioner must then demonstrate that the judgment
of the habeas court should be reversed on its merits.
. . . 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.’’ (Citation omitted; inter-
nal quotation marks omitted.) Meletrich v. Commis-
sioner of Correction, 332 Conn. 615, 626, 212 A.3d
678 (2019).
Given the centrality of plea bargaining to the efficient
administration of the criminal justice system, ‘‘defense
counsel have responsibilities in the plea bargain pro-
cess, responsibilities that must be met to render the
adequate assistance of counsel that the [s]ixth [a]mend-
ment [to the United States constitution] requires in the
criminal process at critical stages. Because ours ‘is for
the most part a system of pleas, not a system of trials’
. . . it is insufficient simply to point to the guarantee
of a fair trial as a backstop that inoculates any errors
in the pretrial process.’’ (Citation omitted.) Missouri
v. Frye, 566 U.S. 134, 143–44, 132 S. Ct. 1399, 182 L. Ed.
2d 379 (2012), quoting Lafler v. Cooper, 566 U.S. 156,
170, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012). ‘‘In today’s
criminal justice system, therefore, the negotiation of a
plea bargain, rather than the unfolding of a trial, is
almost always the critical point for a defendant.’’ Mis-
souri v. Frye, supra, 144. In order to prevail on a claim
of ineffective assistance of counsel during plea negotia-
tions under the well established standard of Strickland
v. Washington, 466 U.S. 668, 687–88, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984), which governs such claims, the
defendant must establish that (1) counsel’s perfor-
mance was deficient, and (2) there was a reasonable
probability that—but for the deficient performance—
the petitioner would have accepted the plea offer, and
that the trial court would have assented to the plea
offer. See Ebron v. Commissioner of Correction, supra,
307 Conn. 357. For purposes of this appeal, we focus
on the first prong of Strickland, specifically, whether
counsel’s failure to correct a client’s expressed, mate-
rial misunderstanding of his sentencing exposure for a
lesser included charge constitutes deficient perfor-
mance. As we noted previously, the petitioner’s expo-
sure with respect to the lesser included offense of
robbery in the third degree is a significant consideration
in this case because, as the habeas court found, he
‘‘believed that he should be convicted of robbery in the
third degree because he only gave the bank teller a note
and did not hurt anyone. The petitioner rejected both
plea offers for ten and fifteen years to serve for robbery
in the first degree because he [believed that he] . . .
committed [only] a robbery in the third degree and he
believed that five years was a more reasonable sentence
for his offense.’’
The United States Supreme Court has declined to
limit findings of deficient performance solely to affirma-
tive misadvice by counsel because there is no meaning-
ful distinction between acts of commission and acts
of omission when assessing ineffective assistance of
counsel claims. See Padilla v. Kentucky, 559 U.S. 356,
370, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). There is
no per se rule requiring specific conduct of defense
attorneys during plea negotiations.6 Purdy v. United
States, 208 F.3d 41, 46 (2d Cir. 2000). Instead, we must
determine whether, ‘‘in light of all the circumstances,
the identified acts or omissions were outside the wide
range of professionally competent assistance.’’ Strick-
land v. Washington, supra, 466 U.S. 690; accord Padilla
v. Kentucky, supra, 370. 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.’’ Strickland v. Washington,
supra, 688; accord Padilla v. Kentucky, supra, 366;
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).
The objective standard of reasonableness for an attor-
ney’s performance is defined by prevailing professional
norms and standards, such as those contained in the
American Bar Association’s Standards for Criminal Jus-
tice and Model Rules of Professional Conduct. See, e.g.,
Padilla v. Kentucky, supra, 559 U.S. 366–67; Strickland
v. Washington, supra, 466 U.S. 688; G. Chin & R. Holmes,
‘‘Effective Assistance of Counsel and the Consequences
of Guilty Pleas,’’ 87 Cornell L. Rev. 697, 713 (2002).
When advising a defendant during plea negotiations,
counsel should ‘‘advise the defendant of the alternatives
available and address considerations deemed important
by defense counsel or the defendant in reaching a deci-
sion.’’ (Emphasis added.) A.B.A., Standards for Criminal
Justice: Pleas of Guilty (3d Ed. 1999) standard 14-3.2
(b), p. 116 (A.B.A. Standards for Criminal Justice).
‘‘[D]efense counsel is charged with the primary respon-
sibility [of] ensur[ing] that the defendant fully under-
stands the plea that is being offered, including all terms
of the sentence that could be imposed and other ramifi-
cations of that plea.’’ Id., standard 14-3.2, commentary,
p. 120. Given the fact specific nature of plea negotiations
and client communications, the necessary information
depends on the individual circumstances of each defen-
dant and his or her case. Id.; see also 1 Restatement
(Third), The Law Governing Lawyers § 20 (3), p. 169
(2000) (‘‘[a] lawyer . . . must explain a matter to the
extent reasonably necessary to permit the client to
make informed decisions regarding the represen-
tation’’).
‘‘Counsel rendering advice in this critical area may
take into account, among other factors, the defendant’s
chances of prevailing at trial, the likely disparity in
sentencing after a full trial as compared to a guilty
plea . . . whether the defendant has maintained his
innocence, and the defendant’s comprehension of the
various factors that will inform his plea decision.’’
(Emphasis added.) Purdy v. United States, supra, 208
F.3d 45. Instead of failing to meet a prescribed, mechani-
cal standard, counsel’s performance has been held con-
stitutionally deficient when counsel failed to provide
his client with ‘‘sufficient information about the client’s
sentencing exposure to allow the client ‘to make a rea-
sonably informed decision [regarding] whether to
accept a plea offer.’ ’’7 United States v. Penoncello, 358
F. Supp. 3d 815, 822 (D. Minn. 2019), quoting United
States v. Day, 969 F.2d 39, 43 (3d Cir. 1992). An under-
standing of the difference between sentencing expo-
sures resulting from standing trial and accepting a plea
offer ‘‘will often be crucial to the decision [regarding]
whether to plead guilty.’’ United States v. Day, supra,
43; see id., 44 (holding that performance would be defi-
cient if counsel failed to advise defendant about sen-
tence exposure). ‘‘A defendant cannot make an intelli-
gent choice about whether to accept a plea offer unless
he fully understands the risks of proceeding to trial.’’
United States v. Herrera, 412 F.3d 577, 580 (5th Cir.
2005); see also Smith v. United States, 348 F.3d 545,
553 (6th Cir. 2003) (‘‘[a] criminal defendant has a right
to expect at least that his attorney will . . . explain
the sentencing exposure the defendant will face as a
consequence of exercising each of the options avail-
able’’). On this point, the United States Court of Appeals
for the Third Circuit has held that a defense attorney’s
failure to accurately advise his client about the range
of sentences he faced if found guilty constituted ineffec-
tive assistance of counsel inasmuch as ‘‘his judgment
was clouded by misunderstanding up through the time
of his trial because his counsel did not do his job.’’
United States v. Bennett, 588 Fed. Appx. 159, 161 (3d
Cir. 2014); see also United States v. Penoncello, supra,
822–23 (concluding that defense counsel’s failure to
inform defendant that rejecting initial plea offer would
result in fifty year increase in sentencing exposure
amounted to deficient performance).
The respondent argues, and the Appellate Court
agreed, that requiring counsel to advise their criminal
defense clients as to each and every possible sentencing
scenario would broaden the duty of trial counsel beyond
the scope of the objective standard of reasonableness.
Moore v. Commissioner of Correction, supra, 186 Conn.
App. 265. We do not, however, understand the petitioner
to seek to impose such a broad duty on defense attor-
neys in contending that Ovian failed to provide him with
constitutionally adequate advice. Instead, the petitioner
argues that, ‘‘[w]hen a criminal defendant’s strong, sub-
jective, and unrealistic beliefs about his case . . . stem
from an articulated legal or factual misunderstanding,
the role of constitutionally competent counsel is to give
accurate and complete advice about the law or relevant
facts.’’ (Citation omitted; emphasis added; internal quo-
tation marks omitted.) We agree with this more limited
understanding of the defense attorney’s obligation.
Indeed, this obligation is consistent with those already
imposed on counsel when advising on deportation or
other collateral consequences that are likely determina-
tive of a criminal defendant’s decision whether to
accept a plea offer, beyond just maximum exposure
after conviction.8 See Lee v. United States, U.S.
, 137 S. Ct. 1958, 1967, 198 L. Ed. 2d 476 (2017)
(recognizing that defense counsel’s error in advising on
deportation consequences prejudiced defendant because
deportation was ‘‘ ‘the determinative issue’ ’’ in his deci-
sion whether to accept plea); Padilla v. Kentucky,
supra, 559 U.S. 368–69 (holding performance to be defi-
cient when counsel failed to advise client about deporta-
tion consequences of plea agreement). Given the gravity
of a defendant’s decision whether to accept a plea offer
or proceed to trial, we conclude that trial counsel has
an obligation to address a material misunderstanding
of law, expressed by the client, that appears to influence
the client’s decision whether to accept a plea offer or
to proceed to trial. This obligation is wholly consistent
with counsel’s obligation to ensure defendants have the
specific information necessary for them to make an
informed decision. See Purdy v. United States, supra,
208 F.3d 44–45 (clarifying that counsel’s obligation to
advise on probable costs and benefits of decision
requires fact specific inquiry into circumstances sur-
rounding plea negotiation).
In response to this court’s articulation order; see foot-
note 5 of this opinion; the habeas court clarified that
the petitioner failed to ‘‘meet his burden to establish
facts that would support his claim that . . . Ovian did
not advise him as to his maximum exposure with
enhancements on a conviction for robbery in the third
degree.’’ Specifically, during the habeas proceedings,
neither the petitioner nor Ovian could recall whether
Ovian specifically advised him as to his exposure under
a sentence for robbery in the third degree. Ovian testi-
fied that, ‘‘although not completely certain, [he] was
reasonably certain that he would have explained to the
petitioner that the enhanced penalties would apply to
any conviction, including robbery in the third degree.
He therefore believed that he would have told the peti-
tioner that, even if he was convicted of robbery in the
third degree, he would face more than ten years.’’
(Emphasis added.) In its articulation, the habeas court
expressly credited Ovian’s testimony and found that he
likely did advise the petitioner as to his exposure for
a sentence of robbery in the third degree. Therefore,
because the habeas court found, as a factual matter,
that the petitioner did not meet his burden of proving
that Ovian breached his duty to advise him regarding
his sentencing exposure for robbery in the third degree,
we conclude that the petitioner has failed to establish
that Ovian rendered ineffective assistance of counsel.
Accordingly, the Appellate Court properly dismissed
the petitioner’s appeal from the denial of the petition
for a writ of habeas corpus.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* March 15, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
We granted the petitioner’s petition for certification to appeal, limited
to the following issue: ‘‘Did the Appellate Court properly conclude that trial
counsel did not render ineffective assistance of counsel in advising the
petitioner regarding the pretrial plea offers?’’ Moore v. Commissioner of
Correction, 330 Conn. 970, 200 A.3d 700 (2019).
2
‘‘At the habeas trial, [the petitioner’s trial counsel, Douglas A. Ovian]
testified that the petitioner had taken a position that the note recovered at
the bank was not the note he had written and handed to the teller. Ovian
testified that it was the petitioner’s position that the note he handed to the
teller never indicated that he had a gun, and that the teller had given him
back the note prior to his running from the bank and jumping into a river.
[Matthew C.] Gedansky [the prosecutor] indicated that the petitioner had
a theory that the police had invented the note on which the state relied;
Gedansky described this as a ‘conspiracy theory.’ Ovian also testified that
he recalled contacting a handwriting expert to see if his evaluation of the
note could give some support to the petitioner’s theory. Ovian testified that
after the handwriting analyst reviewed a copy of the note, the handwriting
analyst indicated to him that he thought it ‘would not be a good idea to call
him as a witness.’ ’’ Moore v. Commissioner of Correction, supra, 186 Conn.
App. 258 n.2.
3
‘‘Gedansky testified that Ovian was able to persuade him to reduce his
initial offer of ten years to serve with five years [of] special parole to ten
years to serve with two years [of] special parole.’’ Moore v. Commissioner
of Correction, supra, 186 Conn. App. 258 n.3.
4
‘‘At the habeas trial, Ovian testified that he recalled there being a ‘specific
discussion of numbers’ with the petitioner about his exposure if he was
found guilty of robbery in the first degree. He also testified that his notes
contained a chart showing that the total exposure the petitioner faced
was forty-eight and one-half years, which included the enhancements the
petitioner likely faced for committing a crime while he was out on bond
and for being a persistent felony offender. Ovian then testified that he could
not definitively say that he advised the petitioner on the maximum sentence
the petitioner faced if convicted on the lesser included offense of robbery
in the third degree, but he indicated that he would not have led the petitioner
to believe that he would have avoided jail time, especially in light of the
conversations they had about the enhancements the petitioner faced.
‘‘The petitioner testified that Ovian did not tell him that he may receive
a sentence of thirty-four years. He also said that he did not think that Ovian
had brought to his attention the potential maximum sentence if he was
found guilty on all the charges. The petitioner indicated that had he known
that he was going to receive a thirty-four year sentence, he would not have
gone to trial. Additionally, the petitioner testified that he was asking at trial
that he be found guilty of robbery in the third degree and felt that the
maximum sentence was five years; he testified that Ovian never told him
the maximum potential sentence for robbery in the third degree was twenty
years. He also testified, though, that he did not recall whether Ovian told
him that a five year sentence was a likely outcome.’’ Moore v. Commissioner
of Correction, supra, 186 Conn. App. 259 n.4.
5
We directed the habeas court to issue an articulation on the following
issue: ‘‘Whether . . . Ovian advised the petitioner about his sentencing
exposure for a conviction at trial of the lesser included offense of robbery
in the third degree.’’ We ordered that articulation sua sponte pursuant to
Practice Book §§ 60-5 and 61-10 (b). See CCT Communications, Inc. v.
Zone Telecom, Inc., 327 Conn. 114, 126, 172 A.3d 1228 (2017) (this court
sua sponte ordered articulation pursuant to Practice Book § 60-5 with respect
to factual basis for alternative ground for affirmance).
We note that, while this appeal was pending before the Appellate Court,
the petitioner filed a motion for articulation, asking, inter alia, ‘‘whether
[Ovian] advised the petitioner about his potential and likely exposure after
a trial [at which] he prevailed on his robbery in the third degree theory
. . . .’’ The habeas court denied the petitioner’s motion for articulation on
May 10, 2017. The petitioner filed a motion for review of the denial, to which
the respondent objected. On July 12, 2017, the Appellate Court granted the
motion for review but denied the relief requested.
6
We note that the respondent asks us to overrule two Appellate Court
decisions, namely, Sanders v. Commissioner of Correction, 169 Conn. App.
813, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904, 156 A.3d 536 (2017),
and Barlow v. Commissioner of Correction, 150 Conn. App. 781, 93 A.3d
165 (2014), on which that court relied in the present case. See Moore v.
Commissioner of Correction, supra, 186 Conn. App. 264. The respondent
argues that both Sanders and Barlow always require counsel to recommend
the ‘‘best course of action’’; Barlow v. Commissioner of Correction, supra,
800; accord Sanders v. Commissioner of Correction, supra, 830–32; when
advising a client about whether to accept a plea offer, which, the respondent
contends, is inconsistent with the Second Circuit’s rejection of a per se rule
in Purdy v. United States, 208 F.3d 41, 46 (2d Cir. 2000). We disagree with
the respondent’s reading of Sanders and Barlow. Those cases do require
counsel to provide advice on plea offers, but they do not mandate that
counsel make specific recommendations in all circumstances. See Sanders
v. Commissioner of Correction, supra, 832 (no per se obligation that counsel
provide recommendation regarding plea offers); Barlow v. Commissioner
of Correction, supra, 794–95 (same). Finally, we note that the present case
does not implicate a failure on Ovian’s part to provide a recommendation
regarding whether the petitioner should have accepted a plea offer, as Ovian
provided such guidance. Instead, this case concerns Ovian’s alleged failure
to address the petitioner’s expression of a material misunderstanding as to
his sentencing exposure, which ultimately influenced the petitioner’s deci-
sion to reject the plea offers.
7
As the petitioner noted in his brief, much of the United States Supreme
Court and Connecticut precedent that considers claims of inadequate repre-
sentation during the plea negotiation stage focuses on instances in which
a criminal defendant accepts a plea as a result of ineffective assistance. This
case is distinct in that it concerns a criminal defendant who rejected plea
offers on the basis of his own misunderstanding of the law that went
uncorrected. However, the rationale behind those cases, specifically, that
a defendant must make an informed decision, remains relevant in light
of the United States Supreme Court’s emphasis on the importance of a
defendant’s ability to receive competent legal assistance during the plea
negotiations stage. See Missouri v. Frye, supra, 566 U.S. 144; Ebron v.
Commissioner of Correction, supra, 307 Conn. 357–59.
8
Like the court in Purdy v. United States, supra, 208 F.3d 44–45, the A.B.A.
Standards for Criminal Justice specifically contemplate that the provision
of legal advice during plea bargaining is not a one-size-fits-all process. For
example, the commentary to standard 14-3.2 (f) recognizes that determining
the collateral consequences of a conviction may be vast and difficult to
predict in some cases; accordingly, the attorney should interview the client
to determine which consequences are important to the client. A.B.A. Stan-
dards for Criminal Justice, supra, standard 14-3.2, commentary, pp. 126–27.
In accordance with defense counsel’s duty to explain the import and effect
of all plea offers to the defendant, the A.B.A. Standards for Criminal Justice
also reference the Model Rules of Professional Conduct. See id., p. 119.
Model rule 1.4 (b) dictates that ‘‘[a] lawyer shall explain a matter to the
extent reasonably necessary to permit the client to make informed decisions
regarding the representation.’’ A.B.A., Model Rules of Professional Conduct
(2017) rule 1.4 (b), p. 19.