O'Reagan v. Comm'r of Corr.

• Citation: 211 Conn.App. 845,274 A.3d 189
• Decision Date: 04 January 2022
• Docket Number: AC 44390
• Parties: O'Neil O'REAGAN v. COMMISSIONER OF CORRECTION
• Court: Appellate Court of Connecticut

211 Conn.App. 845

274 A.3d 189

O'Neil O'REAGAN

v.COMMISSIONER OF CORRECTION

AC 44390

Appellate Court of Connecticut.

Submitted on briefs January 4, 2022

Officially released April 26, 2022

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

Sarah Hanna, senior assistant state's attorney, Margaret E. Kelley, state's attorney, and Amy L. Bepko-Mazzocchi, supervisory assistant state's attorney, filed a brief for the appellee (respondent).

Moll, Alexander and Bear, Js.

ALEXANDER, J.

The petitioner, O'Neil O'Reagan, appeals from the judgment of the habeas court dismissing in part and denying his petition for a writ of habeas corpus. The petitioner claims that the court erred (1) in dismissing in part his habeas petition after finding that he was not in custody on two of his challenged convictions, and (2) in denying his habeas petition after concluding that his trial counsel had not provided ineffective assistance. We disagree with both of the petitioner's claims and, therefore, affirm the judgment of the habeas court.

The habeas court's memorandum of decision sets forth the following facts and procedural history. The petitioner's convictions for burglary and conspiracy to commit robbery "stemmed from two incidents that took place in close temporal proximity on November 5, 2007. On that date ... several unknown males entered the apartment of David Gunnison in Shelton .... The males who broke into the apartment demanded to know where drugs were hidden in the apartment. One male was armed with what appeared to be a small silver handgun, another with a baseball bat and the third with a small shovel. ... A small amount of marijuana was taken from the apartment, as well as cell phones, cash and personal possessions of the other individuals present in the apartment."

Gunnison called the police to report the burglary and admitted to selling drugs. He called his stolen cell phone pretending to be a customer seeking to buy drugs and set up a purchase. Police officers set up surveillance at the agreed upon location for the transaction and observed a vehicle drive past Gunnison. Gunnison told officers that the vehicle "was occupied by several black males and one Hispanic male. Three males exited the vehicle and called to Gunnison to approach them. At this point, officers began to approach the area and the three males fled the scene. Two of the individuals were apprehended after a chase and identified as Shawn Troupe and Anthony Martino. The third individual escaped. Shortly thereafter, the police stopped the [vehicle] and arrested the occupants: Ashley Doy and Joseph Pellechio." The four individuals apprehended by the police first denied involvement in the residential burglary but eventually made statements indicating their involvement in the burglary and a plan "to arrange the sale of the [stolen] drugs as a pretense to rob whoever the caller was." The individuals identified the petitioner as a participant in both the burglary and the conspiracy to rob Gunnison.

"Based on this information, a search warrant for [the petitioner's] residence was approved. A cell phone from the residential burglary was found inside his residence. [The petitioner] agreed to speak with officers and stated that he, along with Troupe, Pellechio, Doy and Martino did go to Gunnison's residence to buy marijuana, but [claimed that] there was no burglary. They all returned to his house and then the other four left for a while without him, returning with cell phones and marijuana. They did not explain the source of either and then left again to sell marijuana to an unknown individual. According to [the petitioner], Pellechio called him the next day to say that the others had been arrested. [The petitioner] then disposed of the cell phones left behind in the garbage can outside his house. Police recovered four cell phones and three iPods from a black plastic bag in the garbage." The petitioner was arrested and charged in connection with these incidents as a result of the police investigation.

On July 21, 2008, the petitioner entered guilty pleas to burglary in the second degree in violation of General Statutes (Rev. to 2007) § 53a-102, conspiracy to commit robbery in the second degree in violation of General Statutes § 53a-48 and General Statutes (Rev. to 2007) § 53a-135, and sale of a narcotic substance in violation of General Statutes (Rev. to 2007) § 21a-277 (a).¹ The plea agreement called for a maximum sentence of ten years of incarceration, execution suspended after five years, followed by five years of probation, with the right to argue for a lesser sentence. On November 14, 2008, the trial court sentenced the petitioner to serve a ten year term of incarceration, execution suspended after four years, followed by five years of probation for the burglary conviction, three years of incarceration for the conspiracy to commit robbery conviction, and one year of incarceration for the sale of a narcotic substance conviction. Each sentence imposed was ordered to be served concurrently.

In 2017, the petitioner was taken into federal immigration custody and removal proceedings were initiated.² At the time he was taken into custody, the sentences for his convictions of conspiracy to commit robbery in the second degree and sale of a narcotic substance had fully expired. The petitioner was still serving his sentence for the burglary in the second degree conviction due to the pendency of a violation of probation, which interrupted the period of the sentence. See General Statutes § 53a-31 (b).

In December, 2017, the petitioner initiated this habeas action and, on August 15, 2018, he filed an amended habeas petition, which contained three counts. In count one, the petitioner alleged a due process violation pursuant to the United States and Connecticut constitutions and claimed that his guilty pleas were "not made knowingly, intelligently and voluntarily because he did not know or understand the probability of deportation/ removal from the United States under the terms of the plea agreement." The petitioner alleged that, if he had known the immigration consequences, he would not have entered guilty pleas. In count two, the petitioner alleged ineffective assistance of his trial counsel, Attorney Mark Solak, pursuant to both the United States and Connecticut constitutions, as a result of Solak's (1) failure to investigate adequately and advise him regarding his plea and likelihood of success at trial, (2) failure to adequately make his immigration status and the probability of deportation/removal part of the plea bargaining process, and (3) "affirmative misadvice about the probability of [his] deportation/removal from the United States ...." Similarly, in count three, the petitioner alleged that, under the Connecticut constitution, Solak had rendered deficient performance for failing to "adequately make [his] immigration status and the probability of deportation/removal from the United States part of the plea bargaining process" and failing to advise him adequately regarding the probability of deportation/removal under the terms of the plea. Only counts two and three of the amended habeas petition are relevant to this appeal.

In his return, the respondent, the Commissioner of Correction, alleged, inter alia, that the court lacked jurisdiction over the habeas petition because "the petitioner was not ‘in custody’ as a result of the convictions and sentence that he challenges." After a hearing, the court, Newson, J., on July 15, 2019, issued an oral decision in which it concluded that, at the time the petitioner filed his habeas petition, he was not in custody on the conspiracy to commit robbery in the second degree and sale of a narcotic substance convictions. It concluded, however, that the petitioner was in custody with respect to his burglary conviction. Accordingly, the court dismissed in part the petitioner's habeas claims related to the conspiracy to commit robbery and narcotics convictions.

A trial on the remaining claims was held on August 28, October 15, and December 17, 2019. On September 1, 2020, the habeas court, Bhatt, J., denied the petition for a writ of habeas corpus. The court declined to revisit Judge Newson's dismissal of the petitioner's challenges to the conspiracy to commit robbery and narcotics convictions, concluding that this earlier dismissal was the law of the case.³ With regard to the petitioner's claims of ineffective assistance of counsel, the court concluded that Solak had not rendered deficient performance in his investigation and advice to the petitioner. It further concluded that Solak was not constitutionally required to advise the petitioner of the immigration consequences of his guilty plea. After denying the habeas petition, the court granted the petition for certification to appeal.

On appeal, the petitioner challenges (1) the dismissal in part of his habeas petition by Judge Newson for lack of subject matter jurisdiction and Judge Bhatt's refusal to revisit the dismissal, and (2) Judge Bhatt's denial of his habeas petition as to the remaining allegations after concluding that his trial counsel had not provided ineffective assistance. We address each claim in turn.

I

The petitioner first claims that the habeas court erred in dismissing in part his habeas petition for lack of subject matter jurisdiction after concluding that, at the time he filed the present habeas action, he was not in custody on the conspiracy to commit robbery and sale of a narcotic substance convictions. We conclude that the habeas court properly determined that the petitioner was not in custody on those two convictions and, therefore, we affirm the dismissal.

The following additional facts and procedural history are relevant to our resolution of this claim. On June 20, 2019, the court, Newson, J. , issued an order and scheduled a hearing, pursuant to Practice Book § 23-29,⁴ to determine whether the petition should be dismissed because ...