Diaz v. Comm'r of Corr.

• Decision Date: 15 October 2020
• Docket Number: AC 39651
• Citation: 242 A.3d 151,201 Conn.App. 254
• Court: Connecticut Court of Appeals
• Parties: Raul DIAZ v. COMMISSIONER OF CORRECTION

201 Conn.App. 254

242 A.3d 151

Raul DIAZ

v.COMMISSIONER OF CORRECTION

AC 39651

Appellate Court of Connecticut.

Submitted for disposition October 15, 2020

Officially released November 10, 2020

Deren Manasevit, assigned counsel, for the appellant (petitioner).

Melissa Patterson, assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and David M. Carlucci, assistant state's attorney, for the appellee (respondent).

Elgo, DiPentima and Bear, Js.

BEAR, J.

This case returns to this court on remand from our Supreme Court. The petitioner, Raul Diaz, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The sole question presented by the petitioner on appeal is "[d]id the habeas court erroneously conclude that trial counsel's failure to file a motion to dismiss the charge of home invasion did not constitute ineffective assistance under Strickland v. Washington [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) ]?" The petitioner had pleaded guilty to that charge pursuant to the Alford doctrine.¹

This court, however, affirmed the judgment of the habeas court, after raising, sua sponte, the issue of whether the petitioner had waived his right to raise a claim of ineffective assistance of counsel and deciding that the petitioner did in fact waive that right by pleading guilty under the Alford doctrine. Diaz v. Commissioner of Correction , 185 Conn. App. 686, 689, 198 A.3d 171 (2018), rev'd, 335 Conn. 53, 225 A.3d 953 (2020). The petitioner then appealed the judgment of this court to our Supreme Court, alleging that this court "improperly raised and decided the unpreserved issue of waiver without first providing the parties with an opportunity to be heard on that issue ...." Diaz v. Commissioner of Correction , 335 Conn. 53, 54, 225 A.3d 953 (2020). Our Supreme Court granted the petition for certification to appeal, "limited to the following issue: ‘Did the Appellate Court properly affirm the judgment of the habeas court on a legal ground that was not raised or decided in the habeas court and never raised or briefed by the parties in the Appellate Court?’ " Id., at 57, 225 A.3d 953. Our Supreme Court answered that question in the negative and remanded the case to this court with the following rescript: "The judgment of the Appellate Court is reversed and the case is remanded to that court for further proceedings in accordance with this opinion." Id., at 62, 225 A.3d 953. The rescript of our Supreme Court presents this court with two possible courses of action. The first is to proceed "in a manner ... consistent with [its] decision in Blumberg [Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc. , 311 Conn. 123, 143, 84 A.3d 840 (2014) ]" with respect to the waiver issue. Diaz v. Commissioner of Correction , supra, 335 Conn. at 61, 225 A.3d 953. The second is to decide the petitioner's appeal on the basis of his ineffective assistance of counsel claim, which previously has been briefed and argued by the parties. We take the latter course of action and affirm the judgment of the habeas court.

The following factual and procedural background is relevant to our resolution of the petitioner's appeal on remand.² On October 27, 2011, the petitioner entered the Ellington home of the seventy-seven year old victim when the victim was not present. While the petitioner was still in the home, the victim returned. The petitioner asked the victim to step aside so that he could flee the home, but the victim refused. The petitioner then struck the victim with a jewelry box, which resulted in a laceration on his head, as well as a broken nose

and cheekbone. After taking the victim's wallet and car keys, the petitioner fled in the victim's car and later was apprehended.

The petitioner was charged in a substitute information with two counts of home invasion in violation of General Statutes § 53-100aa,³ two counts of burglary in the first degree in violation of General Statutes § 53a-101(a)(1) and (2), one count each of larceny in the third degree in violation of General Statutes § 53a-124, larceny in the fourth degree in violation of General Statutes § 53a-125, assault in the second degree in violation of General Statutes § 53a-60b, and robbery in the first degree involving a dangerous instrument in violation of General Statutes § 53a-134(a)(3). On April 26, 2013, after the petitioner entered into a plea agreement with the state, he pleaded guilty under the Alford doctrine to one count of home invasion in violation of § 53a-100aa (a) (2). After a thorough canvass, the court accepted the plea, rendered a judgment of conviction, and sentenced the petitioner in accordance with the plea agreement to twenty-five years of imprisonment. The petitioner did not appeal from the judgment of conviction.

Thereafter, the petitioner commenced this habeas action. On February 25, 2016, the petitioner filed an amended petition for a writ of habeas corpus, alleging, among other claims, that his trial counsel had rendered ineffective assistance by failing to file a motion to dismiss the home invasion charge on the ground that it was duplicative of the burglary in the first degree charge. After a trial, the habeas court denied the petition for a writ of habeas corpus. In its memorandum of decision, the court concluded that the petitioner had failed to establish both that his trial counsel deficiently performed by not filing a motion to dismiss the home invasion charge and that there was prejudice to him as result of trial counsel's decision not to file such a motion. The court found that, although the petitioner's trial counsel had agreed with the state's assessment that the petitioner had violated the home invasion statute, he nonetheless argued, although unsuccessfully, to the court and the prosecutor that the home invasion charge should be dropped and that, in any event, the petitioner should be allowed to plead to the burglary in the first degree charge instead of the home invasion charge. Moreover, the court agreed with the testimony of the petitioner's trial counsel that there was no good faith basis on which to bring a motion to dismiss the home invasion charge in the trial court. After the court rendered its judgment denying the habeas petition, the petitioner filed a petition for certification to appeal to this court, which the habeas court granted.

In addressing the petitioner's sole claim on appeal, we first set forth the applicable standard of review. Although "[t]he underlying historical facts found by the habeas court may not be disturbed unless the findings were clearly erroneous"; (internal quotation marks omitted) Mozell v. Commissioner of Correction , 87 Conn. App. 560, 564–65, 867 A.2d 51, cert. denied, 273 Conn. 934, 875 A.2d 543 (2005) ; "the effectiveness of an attorney's representation of a criminal defendant is a mixed determination of law and fact that ... requires plenary review ...." (Internal quotation marks omitted.) Ledbetter v. Commissioner of Correction , 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied sub nom. Ledbetter v. Lantz , 546 U.S. 1187, 126 S. Ct. 1368, 164 L. Ed. 2d 77 (2006). "To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington , [supra, 466 U.S. at 687, 104 S.Ct. 2052]. Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong." (Internal quotation marks omitted.) Small v. Commissioner of Correction , 286 Conn. 707, 712–13, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz , 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008). When reviewing a claim of ineffective assistance of counsel, a "court can find against a petitioner on either ground, whichever is easier." (Emphasis added.) Valeriano v. Bronson , 209 Conn. 75, 86, 546 A.2d 1380 (1988). To satisfy the prejudice prong of Strickland , "a claimant must demonstrate that ‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ " Ledbetter v. Commissioner of Correction , supra, at 458, 880 A.2d 160, quoting Strickland v. Washington , supra, at 694, 104 S.Ct. 2052. However, in the context of a guilty plea, our Supreme Court has determined that, "[u]nder the test in Hill [v. Lockhart , 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)], in which the United States Supreme Court 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...