Grant v. Comm'r of Corr.

• Decision Date: 12 April 2022
• Docket Number: SC 20561
• Parties: Lenworth Charles GRANT v. COMMISSIONER OF CORRECTION
• Court: Connecticut Supreme Court

342 Conn. 771

272 A.3d 189

Lenworth Charles GRANT

v.COMMISSIONER OF CORRECTION

SC 20561

Supreme Court of Connecticut.

Argued October 20, 2021

Officially released April 12, 2022

Desmond M. Ryan, for the appellant (petitioner).

Sarah Hanna, senior assistant state's attorney, with whom, on the brief, were Brian W. Preleski, state's attorney, Tanya K. Gaul, former special deputy assistant state's attorney, and Kelly A. Masi, senior assistant state's attorney, for the appellee (respondent).

Robinson, C.J., and McDonald, D'Auria, Mullins, Kahn, Ecker and Keller, Js.

MULLINS, J.

The petitioner, Lenworth Charles Grant, appeals from the judgment of the habeas court denying in part his petition for a writ of habeas corpus.¹ The petitioner claims that the habeas court incorrectly concluded that he did not demonstrate that he had suffered prejudice from the ineffective assistance of his trial counsel insofar as his trial counsel allegedly failed to properly inform him that he would be subject to deportation as a consequence of his guilty plea to a felony. We disagree and, accordingly, affirm the judgment of the habeas court.²

The record reveals the following relevant facts and procedural history. The petitioner is a citizen of Jamaica who had resided in Connecticut since 1997 and held a valid green card.³ In 2014, the petitioner was involved in a domestic violence incident in which the state accused him of assaulting the complainant,⁴ his girlfriend and the mother of his child.⁵ The incident occurred while the petitioner and the complainant were riding in a motor vehicle with their eleven month old son. The complainant was driving, and an argument ensued between her and the petitioner. The complainant alleged that the petitioner assaulted her by pulling her hair, slapping her and choking her, causing her to nearly lose control of the vehicle while on the highway. Thereafter, the complainant was treated at a hospital for the injuries she sustained. The police took photographs of her injuries, and the complainant gave a written statement detailing this assault. Subsequently, the complainant recanted in statements to the victim's advocate, the New Britain Police Department and the New Britain public defender's office.⁶

As a result of this incident, in the judicial district of New Britain, geographical area number fifteen, the state charged the petitioner with one count each of risk of injury to a child in violation of General Statutes § 53-21 (a) (1), assault in the third degree in violation of General Statutes § 53a-61, strangulation in the third degree in violation of General Statutes (Rev. to 2013) § 53a-64cc, and disorderly conduct in violation of General Statutes § 53a-182.

In the proceedings before the trial court, "[t]he petitioner was represented by Attorney David Cosgrove of the [New Britain public defender's office]. Attorney Cosgrove engaged in numerous plea negotiations on the petitioner's behalf, where the main focus was to avoid incarceration. Attorney Cosgrove attempted to get the petitioner into [substance abuse and domestic violence] treatment to later use as a bargaining chip. The petitioner stopped going to the first program but was then entered into a second program. There were numerous offers made by the state, all of which involved pleas of guilty to felonies and incarceration. From the outset, the state had taken the position that this case would ... be resolved [only] if the petitioner served time in prison. Attorney Cosgrove focused his efforts on eliminating that prospect. The first offer involved a sentence of three [years of] incarceration, suspended after service of one year, followed by three [years of] probation. Through further negotiation, the state altered that offer to [reduce] the period of incarceration to eight months. Attorney Cosgrove then convinced the trial court, Hadden , J. , to fully suspend the period of incarceration in light of the recantation [by] the complainant and the [substance abuse and domestic violence] treatment the petitioner had [received] during the pendency of this case."⁷

Ultimately, the petitioner pleaded guilty, pursuant to the Alford doctrine,⁸ to one count each of risk of injury to a child and strangulation in the third degree. The petitioner pleaded guilty in exchange for a court indicated sentence of three years of incarceration, fully suspended, and three years of probation.⁹ Approximately one year later, the petitioner was found to have violated his probation and was sentenced to three years of incarceration related to this case.

On July 10, 2017, the petitioner filed a petition for a writ of habeas corpus. He was self-represented at that time. Thereafter, counsel for the petitioner entered an appearance and filed an amended petition. The operative petition in this case is the fourth amended petition filed on August 31, 2018. In that petition, the petitioner alleged two separate counts, claiming ineffective assistance of trial counsel regarding the performance of two different attorneys with respect to two separate guilty pleas, one related to his conviction of possession of narcotics, originating out of Manchester (Manchester case), and one related to the conviction of risk of injury to a child and strangulation in the third degree, originating out of New Britain (New Britain case).

In count one, the petitioner alleged ineffective assistance of counsel in the Manchester case, in which he pleaded guilty to possession of narcotics in violation of General Statutes (Supp. 2014) § 21a-279 (a), in exchange for a fully suspended sentence and probation. In this count, he claimed that his trial counsel, Attorney Mark E. Holmes, failed to adequately inform him regarding the immigration consequences of the plea and that, had trial counsel properly informed him, he would have rejected the state's plea offer.¹⁰

In count two of this petition—the claim that is the subject of this appeal—the petitioner's allegations were directed at his trial counsel's performance in the New Britain case, in which the petitioner pleaded guilty to risk of injury to a child and strangulation in the third degree. In this count, he claimed that the performance of his trial counsel, Attorney Cosgrove, violated his right to the effective assistance of counsel under the sixth and fourteenth amendments to the United States constitution because, inter alia, Cosgrove failed to inquire about the petitioner's immigration status and failed to properly advise him of the immigration consequences of his plea. Specifically, the petitioner alleges that Cosgrove had access to information that the petitioner was not a United States citizen and failed to inform the petitioner that he would almost certainly be subject to deportation as a consequence of his guilty plea to a felony, namely, risk of injury to a child, that would likely be considered a "crime of child abuse, child neglect, or child abandonment" under federal law. 8 U.S.C. § 1227 (a) (2) (E) (i) (2012).

Indeed, sometime in or around 2017, the federal government initiated removal proceedings against the petitioner based, in part, on his conviction of risk of injury to a child, which is the subject of this appeal. In connection with those proceedings, on May 30, 2019, the petitioner was deported to Jamaica.

At the habeas trial, as it related to the New Britain case, the petitioner testified and presented testimony from Attorney Cosgrove and the prosecutors involved in his case, Attorneys Louis Luba and Mary Rose Palmese. He also presented expert testimony from two attorneys. With respect to the penultimate question of whether the petitioner would have gone to trial had his trial counsel not performed deficiently, the petitioner repeatedly testified that he did not know whether he would have gone to trial if he was properly advised of the immigration consequences of his guilty pleas. For instance, the petitioner was asked, "[a]nd were you interested in potentially going to trial [in] this case?" The petitioner replied in relevant part: "To be honest with you, I mean ... I've heard a lot of things about trial, and I'm not an expert or anything like that. I mean, I'm ... not familiar with anything when it comes to trial, so I'm not sure where I would have gone with that. But, I mean, I was willing to take the first [guilty plea] option that [my trial counsel] had given me ...."

After the hearing, the habeas court issued a memorandum of decision, in which the court found in relevant part: "At the habeas trial, [Attorneys Luba and Palmese] ... both testified credibly that they were not willing to consider dropping the risk of injury [to a child] charge against the petitioner. Attorney Palmese further testified that, under the circumstances of the petitioner's case, particularly the seriousness of the charges and the description of the petitioner's conduct, she would not change the charges. Thus, there is no evidence that there was another, more favorable offer that was available to the petitioner. ...

"[On the basis of] the record, even if the court presumed that Attorney Cosgrove ... [performed] deficient[ly] [by] failing to inquire into the petitioner's immigration status and [to] advise the petitioner [concerning] the potential immigration consequences of his plea, the court finds that the petitioner has not proven that he would have rejected the offer and proceeded to trial or accepted an alternative offer."¹¹ (Citations omitted.) Accordingly, the habeas court denied the petition for a writ of habeas corpus as to count two, the claim involving the New Britain case. This appeal followed.

We begin by setting forth the standard of review applicable to the petitioner's appeal. "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. ... The application of historical facts to questions of law that is necessary to determine whether the petitioner has demonstrated prejudice...