Smorodska v. Comm'r of Corr.

• Decision Date: 27 December 2022
• Docket Number: AC 44881
• Citation: 217 Conn.App. 171,287 A.3d 1117
• Parties: Anna SMORODSKA v. COMMISSIONER OF CORRECTION
• Court: Connecticut Court of Appeals

217 Conn.App. 171

287 A.3d 1117

Anna SMORODSKA

v.COMMISSIONER OF CORRECTION

AC 44881

Appellate Court of Connecticut.

Argued September 15, 2022

Officially released December 27, 2022

Robert L. O'Brien, assigned counsel, with whom, on the brief, was Christopher Y. Duby, assigned counsel, for the appellant (petitioner).

Meryl R. Gersz, deputy assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, former state's attorney, and Jo Anne Sulik, senior assistant state's attorney, for the appellee (respondent).

Alvord, Cradle and DiPentima, Js.

DiPENTIMA, J.

The petitioner, Anna Smorodska, appeals from the judgment of the habeas court denying her petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that her trial counsel did not render ineffective assistance in advising her about the immigration consequences of her pleading guilty pursuant to the Alford doctrine.¹ We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our resolution of this appeal. The petitioner was arrested on December 14, 2015, in connection with allegations that she started fires in the middle of the night in the yard of a residence of her former boyfriend that caused damage to flammable, inflatable Christmas decorations and to a corner of the house. The petitioner admitted to police that she had burned love letters in the yard and had attempted to burn the inflatable decorations. The petitioner pleaded guilty pursuant to the Alford doctrine to arson in the first degree in violation of General Statutes § 53a-111, threatening in the second degree in violation of General Statutes (Rev. to 2015) § 53a-62, and criminal violation of a protective order in violation of General Statutes § 53a-223. During the plea process, the petitioner was represented by Attorney Stephan Seeger. The trial court, Shaban, J., sentenced the petitioner to a total effective sentence of three and one-half years of incarceration, followed by six and one-half years of special parole. The petitioner was born in Ukraine, entered the United States on a temporary visa that expired in August, 2014, and was not lawfully residing in the country at the time of her arrest and conviction.

In an amended petition for a writ of habeas corpus, filed in July, 2020, the petitioner alleged, inter alia, that Seeger provided ineffective assistance of counsel by failing to advise her adequately regarding the immigration consequences of her Alford plea.² Following trial, the habeas court, Oliver, J., issued a memorandum of decision on June 18, 2021, denying the petition for a writ of habeas corpus. The court concluded that the petitioner had failed to establish deficient performance.³ In so deciding, the court stated: "Attorney Seeger testified at the habeas trial that he advised the petitioner that arson in the first degree constituted an ‘aggravated felony’ that subjected the petitioner to deportation and removal. He testified that he told her that ‘the assumption and the presumption should be that she would be deported or removed’ and that he made no representation to the petitioner that anything could occur aside from her being deported for an aggravated felony conviction.

Attorney Seeger further testified that he informed the petitioner that her Alford plea ‘may or may not’ have an effect on the matters considered by immigration officials, but it would not rescue her from being deported or reduce the strength of the case the immigration authorities had against her. He testified that he did not discuss the federal enforcement practices for deportation pursuant to an aggravated felony conviction beyond advising the petitioner that such a conviction would result in her deportation or removal. ... Given the foregoing, and after a careful examination of the evidence, the court concludes that Attorney Seeger unequivocally conveyed to the petitioner that the immigration consequences of her guilty plea to an arson in the first degree charge was deportation mandated by federal law. There is no credible evidence that Attorney Seeger ... failed to adequately advise or affirmatively misadvise[d] the petitioner about the deportation consequences of her plea agreement. The likelihood of deportation was sufficiently explained to the petitioner." Thereafter, the petitioner filed a petition for certification to appeal, which the court granted. This appeal followed.

On appeal, the petitioner claims that the court improperly concluded that she had not established that Seeger was deficient in his performance for failing to advise her adequately of the immigration consequences of her Alford plea. Specifically, she contends that Seeger was "abundantly, bluntly clear in his immigration advice in this case—until he was not. Advice cannot be clear and unequivocal if a portion of that advice gives false hope .... [Seeger] ... testified that he advised the petitioner that she should assume she would be removed as a result of her conviction .... Although he could not testify that he advised the petitioner that her removal was a ‘certainty,’ his advice otherwise was clear up to this point. However, that is when the topic of the Alford plea crept into the conversations between Seeger and the petitioner. By Seeger's own admission, he advised the petitioner that an Alford plea ‘may or may not have an effect on what immigration authorities [consider].’ His own words were ‘may or may not.’ ... That is equivocation." (Footnotes omitted.) Alternatively, she argues that Seeger's "may or may not" advice concerned the likelihood of enforcement and negated the import of the overall immigration advice that he had conveyed.

The following legal principles and standard of review guide our analysis. "The sixth amendment to the United States constitution, made applicable to the states through the due process clause of the fourteenth amendment, affords criminal defendants the right to effective assistance of counsel. ... Although a challenge to the facts found by the habeas court is reviewed under the clearly erroneous standard, whether those facts constituted a violation of the petitioner's rights under the sixth amendment is a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case. ... It is well established that the failure to adequately advise a client regarding a plea offer from the state can form the basis for a sixth amendment claim of ineffective assistance of counsel. ... To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington , [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. ... The petitioner has the burden to establish that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance. ... An ineffective assistance of counsel claim will succeed only if both prongs [of Strickland ] are satisfied." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Duncan v. Commissioner of Correction , 171 Conn. App. 635, 646–48, 157 A.3d 1169, cert. denied, 325 Conn. 923, 159 A.3d 1172 (2017).

"A claim of ineffective assistance of counsel raised by a petitioner who faces mandatory deportation as a consequence of [her] guilty plea is analyzed more particularly under Padilla v. Kentucky , [559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010)], a case in which the United States Supreme Court held that counsel must inform clients accurately as to whether a guilty plea carries a risk of deportation." (Internal quotation marks omitted.) Olorunfunmi v. Commissioner of Correction , 211 Conn. App. 291, 305, 272 A.3d 716, cert. denied, 343 Conn. 929, 281 A.3d 1186 (2022). Our Supreme Court analyzed Padilla under Connecticut law in Budziszewski v. Commissioner of Correction , 322 Conn. 504, 142 A.3d 243 (2016), stating: "In Padilla ... the United States Supreme Court concluded that the federal constitution's guarantee of effective assistance of counsel requires defense counsel to accurately advise a noncitizen client of the immigration consequences of a guilty plea. ... [W]hen the immigration consequences under federal law are clearly discernable, Padilla requires counsel to accurately advise his client of those consequences. ... For some convictions, federal law calls for deportation, subject to limited exceptions. ... In these circumstances, because the likely immigration consequences of a guilty plea are truly clear, counsel has a duty to inform his client of the deportation consequences set by federal law." (Citations omitted; internal quotation marks omitted.) Id., at 511–12, 142 A.3d 243.

"In Budziszewski , our Supreme Court specifically set forth the advice criminal defense counsel must provide to a noncitizen client who is considering pleading guilty to a crime in which deportation pursuant to federal law is a consequence of a conviction." Echeverria v. Commissioner of Correction , 193 Conn. App. 1, 10, 218 A.3d 1116, cert. denied, 333 Conn. 947, 219 A.3d 376 (2019). In Budziszewski , our Supreme Court held: "For crimes designated as aggravated felonies ... federal law mandates deportation almost without exception. ... We conclude that, for these types of crimes, Padilla requires counsel to inform the client about the deportation consequences prescribed by federal law. ... Because noncitizen clients will have different understandings of legal concepts and the English language, there are no precise terms or one-size-fits-all phrases that counsel must use to convey this message. Rather, courts reviewing a claim that counsel did not comply with Padilla must carefully examine all of the advice...