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*********************************************** 
DENNIS ADKINS v. COMMISSIONER

OF CORRECTION

(AC 40037)

Sheldon, Keller and Prescott, Js.

Syllabus

The petitioner, who had been convicted on a guilty plea pursuant to the

Alford doctrine of the crime of felony murder, sought a writ of habeas

corpus. At his sentencing hearing, the petitioner’s trial counsel notified

the trial court that, although counsel was unaware of any legal grounds

to do so, the petitioner had indicated to him that he wanted to withdraw

his plea. The trial court noted that there was a reference to the petitioner’s request in the presentence investigation report and that it had

received a correspondence from the petitioner in which he requested

to withdraw his plea. After the petitioner addressed the court personally

on the matter, the court denied the request, concluding that the petitioner

had not presented the court with a basis on which to permit him to

withdraw his guilty plea. Thereafter, the petitioner brought a habeas

action, claiming, inter alia, that his trial counsel had rendered ineffective

assistance and that he should be permitted to withdraw his guilty plea.

The habeas court rendered judgment denying the habeas petition, and

this court affirmed the judgment. Subsequently, the petitioner filed a

third petition for a writ of habeas corpus, claiming that his trial counsel

had provided ineffective assistance by failing to advise him with respect

to his right to appeal from the trial court’s denial of his oral motion to

withdraw his guilty plea and had deprived him of his right to conflict

free representation at trial because, prior to the date of this guilty plea,

he had filed a grievance complaint against trial counsel. The petitioner

also claimed that his prior habeas counsel had provided ineffective

assistance in the prior habeas action by failing to raise his claims against

trial counsel. Following a hearing at which trial counsel, prior habeas

counsel and the petitioner testified, the habeas court dismissed the

claims against trial counsel because they presented the same ground

for relief that had been considered and denied by the court in the prior

habeas action. The habeas court thereafter concluded that neither claim

against prior habeas counsel had merit and rendered judgment denying

the habeas petition, from which the petitioner, on the granting of certification, appealed to this court. Held:

1. The petitioner could not prevail on his claim that the habeas court improperly rejected his claim that his prior habeas counsel rendered ineffective

assistance in the prior habeas action by failing to raise his claim that

trial counsel rendered ineffective assistance by not advising the petitioner with respect to his right to appeal from the denial of his motion

to withdraw his guilty plea: the petitioner was unable to demonstrate

that a nonfrivolous ground for appeal of his motion to withdraw his

guilty plea existed, as the habeas court expressly found that his motion

was not related to ineffective representation by trial counsel or any

misunderstanding by the petitioner but, instead, was based on the fact

that he had changed his mind about the plea, which finding was fatal

to the petitioner’s claim that there were viable grounds to appeal and,

thus, that a rational defendant would have wanted to bring an appeal

to pursue those grounds, and there was no credible evidence to support

the petitioner’s claim that trial counsel should have been aware of a

valid ground on which the petitioner may have based his motion, as the

habeas court made findings of fact that undermined the petitioner’s claim

that nonfrivolous grounds existed and the petitioner did not demonstrate

that those findings lacked support in the evidence; moreover, the petitioner did not demonstrate that, despite the fact that there were not

any nonfrivolous grounds for an appeal, trial counsel had a constitutional

obligation to advise him about his right to appeal, as the evidence,

viewed in its entirety, did not support a finding that the petitioner

reasonably demonstrated to trial counsel that he was interested in bringing an appeal or inquired to any extent about his appellate rights.

2. This court declined to review the petitioner’s unpreserved claim that the
habeas court improperly rejected his claim that his prior habeas counsel

rendered ineffective assistance by failing to present evidence in support

of his claim that his guilty plea was the result of trial counsel’s ineffective

assistance, as the petitioner did not distinctly raise that claim in his

habeas petition, and, as a result, the habeas court did not expressly rule

on it in its thorough memorandum of decision.

3. The petitioner could not prevail on his claim that the habeas court improperly rejected his claim that his prior habeas counsel rendered ineffective

assistance by failing to claim in the prior habeas action that trial counsel’s

conflict of interest resulted in the petitioner’s guilty plea: although the

petitioner claimed that the habeas court improperly raised sua sponte

the issue of waiver and dismissed his claim on that ground, the court

did not conclude that the petitioner had waived his claim but, rather,

appropriately considered and rejected the petitioner’s claim on its merits, concluding that the waiver doctrine provided additional support for

its determination that the underlying claim against trial counsel was

dubious at best when viewed in light of state and federal authority

concerning what types of claims may be raised following a valid guilty

plea; moreover, the court unambiguously found that the petitioner’s

guilty plea was made knowingly and voluntarily, it explicitly rejected

the petitioner’s argument that his dissatisfaction with trial counsel and

the issues surrounding the filing of his grievance complaint influenced

his decision to plead guilty, and the court, having observed the petitioner

testify about the plea and having assessed the truthfulness of his testimony, was not obligated to accept as true his version of the facts;

accordingly, the court’s factual finding concerning the voluntariness of

the plea was supported by evidence in the record, and this court was

not persuaded that a mistake had been made.

Argued April 10—officially released October 2, 2018

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, Sferrazza, J.; judgment

denying the petition, from which the petitioner, on the

granting of certification, appealed to this court.

Affirmed.

Michael W. Brown, assigned counsel, for the appellant (petitioner).

Timothy F. Costello, assistant state’s attorney, with

whom, on the brief, were Patrick J. Griffin, state’s

attorney, and Adrienne Russo, assistant state’s attorney, for the appellee (respondent).
Opinion

KELLER, J. Following the granting of his petition for

certification to appeal, the petitioner, Dennis Adkins,

appeals from the judgment of the habeas court denying

his amended petition for a writ of habeas corpus. The

petitioner claims that the court improperly rejected his

claim that his prior habeas counsel rendered ineffective

assistance on the basis that he failed (1) to claim that

trial counsel rendered ineffective assistance by failing

to advise the petitioner with respect to his right to

appeal from the denial of his motion to withdraw his

guilty plea, (2) to present evidence in support of the

petitioner’s claim that his guilty plea was the result of

trial counsel’s ineffective assistance, and (3) to claim

that trial counsel’s conflict of interest resulted in the

petitioner’s guilty plea. We affirm the judgment of the

habeas court.

The following undisputed procedural history is relevant to this appeal. The petitioner was arrested and

charged with murder in violation of General Statutes

§ 53a-54 (a), felony murder in violation of General Statutes § 53a-54c, and carrying a pistol without a permit

in violation of General Statutes § 29-35 (a). On April 4,

2000, pursuant to a plea agreement with the state, the

petitioner pleaded guilty under the Alford doctrine1

to

felony murder in violation of § 53a-54c. The petitioner

was represented by Attorney Francis Mandanici.

The prosecutor set forth the factual basis of the plea,

as follows: ‘‘On August 24, 1999, at or about 10:27 p.m.,

in front of 119 Dewitt Street in New Haven, the victim

[in] this case, Rodney Williams, was on the front porch

and a person wearing a mask came down the driveway

and confronted two people standing in the driveway,

one of them a young lady. The person in the mask

grabbed the lady’s chain from around her neck. She

grabbed it back. She and her boyfriend, who were in

the driveway, indicated that the person was wearing a

mask and had a handgun in his hand. According to

witnesses out front, the individual came down the driveway with the mask and confronted the victim in this

case, who was standing on the front steps or on the

ground near the front steps, confronted the victim with

a handgun, and the victim came down off the steps and

went toward the assailant and there was a short tussle

during which the assailant fired a series of shots, one

of which hit the victim, Rodney Williams, in the chest

and caused his death.

‘‘During the subsequent investigation, a Calvin Hinton

. . . was interviewed and indicated that he had been

with [the petitioner] earlier that evening. They had

talked about robbing the victim in this case and that

he saw the [petitioner] with a weapon. The [petitioner],

in a subsequent statement, indicated [that] he received

the weapon . . . from Hinton. In any event, Hinton
indicated that he saw the [petitioner] go to the area

where the victim was standing and later saw the [petitioner] run away from the area.

‘‘Subsequently, [the petitioner] was interviewed and

admitted that he and Hinton had talked about [committing] the robbery, that Hinton had provided him the

gun, that he had gone to the area for the purpose of

committing a robbery of Williams, who they knew to

be a drug dealer, [and] that a struggle ensued and shots

were fired from his gun which struck Williams. [The

petitioner] indicated that he did not intend to kill him,

but that this did occur during the attempted commission

of a robbery. Subsequently, after [the petitioner] was

arrested and [incarcerated,] he admitted to an individual in the correctional facility that he was responsible

for the shooting and actually detailed the fact that it

occurred during the commission of an attempted

robbery.’’

The prosecutor set forth the details of the plea

agreement. The petitioner was to serve a thirty-five year

term of incarceration and the state agreed to enter

a nolle prosequi with respect to additional charges.

Additionally, the state agreed not to bring charges

against the petitioner for what it considered to be efforts

made by him to seek retribution against a witness. The

trial court, Fasano, J., thoroughly canvassed the petitioner. After finding that the plea was made knowingly

and voluntarily, the court accepted the plea and entered

a finding of guilt.

The petitioner returned before the court, Fasano,

J., on May 26, 2000, for sentencing. At the hearing,

Mandanici indicated that, although he was unaware of

any legal grounds for the request, the petitioner indicated to him that he wanted to withdraw his plea. The

court observed that there was a reference to the petitioner’s request in the presentence investigation report

and that it had received a correspondence from the

petitioner in which he requested to withdraw his plea.

The petitioner addressed the court personally with

respect to his request, indicating that he was not satisfied with Mandanici’s representation, Mandanici was

aware that he did not commit the crime, the evidence

that he had confessed to the crime was ‘‘bull shit,’’ and

he believed that he was entitled to ‘‘a lesser charge.’’

The petitioner stated that he was ‘‘not pleading out to

no murder.’’ The court replied that the petitioner

already had pleaded guilty under the Alford doctrine,

that the petitioner had been canvassed thoroughly, and

that the petitioner had not presented the court with a

basis on which to permit him to withdraw his guilty

plea.2 Thereafter, the court sentenced the petitioner in

accordance with the plea agreement that he had

reached with the state.

In 2003, in a prior habeas corpus action, the petitioner

filed an amended petition for a writ of habeas corpus
in which he alleged that Mandanici had rendered ineffective assistance and, because of this violation of his

constitutional rights, he should be permitted to withdraw his guilty plea. Also, relying on what he characterized as newly discovered evidence, the petitioner

alleged that he was actually innocent. With respect to

his ineffective assistance of counsel claim, the petitioner alleged that Mandanici had failed to conduct a

proper pretrial investigation, failed to devote sufficient

time to his defense, and failed to withdraw from his

representation of the petitioner.

During the prior habeas action, the petitioner was

represented by Attorney Brian Russell. Following a

hearing, the court, Fuger, J., concluded that the petitioner had failed to demonstrate that Mandanici had

performed deficiently and that even if such a showing

had been made, the petitioner had failed to demonstrate

that he suffered any prejudice as a result of Mandanici’s

acts or omissions. In its memorandum of decision, the

court observed that there were two witnesses to the

murder committed by the petitioner and that the petitioner had provided a confession to the police in which

he revealed his role as the shooter. The court then

stated: ‘‘[T]he petitioner now asserts that he was under

the influence of illegal drugs at the time he made the

statement [to the police], that the statement is false and

that he only did it because he did not want to be labeled

a ‘snitch.’ However, these assertions are not worthy of

belief. Insofar as being under the influence of drugs at

the time the statement was made, there are two factors

that undermine the credibility of this assertion. First,

the petitioner was arrested at about 10 a.m. on September 23, 1999. The statement was taken between 7:46 p.m.

and 8:17 p.m. on that day. According to the petitioner,

he ran from the police and swallowed some unspecified

amount of crack cocaine that he had on him. There has

been no evidence presented to this habeas court that

would allow the court to conclude that a person who

had ingested cocaine would still be under the influence

of that drug nearly ten hours later. Significantly, there

has been no evidence adduced to allow this court to

conclude what, if anything, the ingestion of cocaine

might do to a person’s cognitive abilities. However, it

is more or less colloquially known that the effects of

cocaine are relatively short lived. Second, the testimony

of Detective Sergeant [Joanne] Schaller, who coincidentally has training as an EMT paramedic, is clear that

the petitioner was not exhibiting any outward signs of

drug intoxication, nor did he complain of any illness

or impairment. Moreover, there is some evidence that

the idea to argue intoxication as a means to invalidate

the confession originated with another inmate, Jason

Reese. All of this leads this court to conclude that the

petitioner’s statement attacking his confession is selfserving and unworthy of belief.’’ (Footnote omitted.)

Moreover, the court rejected the petitioner’s claim
of actual innocence, noting that the petitioner had failed

to submit to the court ‘‘anything even remotely resembling newly discovered evidence.’’ Consequently, the

court denied the amended petition for a writ of habeas

corpus. This court affirmed the judgment of the habeas

court. Adkins v. Commissioner of Correction, 88 Conn.

App. 901, 869 A.2d 279 (2005), cert. denied, 281 Conn.

906, 916 A.2d 48 (2007).

In May, 2016, the petitioner, represented by counsel,

filed a third amended petition for a writ of habeas corpus in the habeas corpus action that underlies the present appeal. The amended petition set forth three

counts. In count one, the petitioner alleged that Mandanici deprived him of his right to effective representation by failing to advise him with respect to his right

to appeal from the trial court’s denial of his oral motion

to withdraw his guilty plea. He argued that he did not

have a full and fair opportunity to raise this claim in

his prior habeas action.

In count two, the petitioner alleged that Mandanici

deprived him of his right to conflict free representation

at trial because on February 19, 2000, prior to the date

of his plea, he filed a grievance complaint against Mandanici.3 The petitioner alleged that the filing of the complaint ‘‘completed a total and complete breakdown in

the attorney-client relationship’’ between him and Mandanici. He argued that his defense ‘‘was adversely

affected by [Mandanici’s] actual conflict of interest’’

because Mandanici failed to communicate with him,

failed to investigate the allegations against him, failed

to zealously advocate for him during plea negotiations,

and failed to advise him with respect to his right to

appeal from the trial court’s denial of his oral motion

to withdraw his guilty plea. The petitioner alleged that

he was prejudiced in that he received a harsher sentence

than he would have received following a trial or an

adequate plea bargaining process. The petitioner

alleged that he did not have a full and fair opportunity

to present this claim in his prior habeas action.

In count three, the petitioner alleged that Russell had

deprived him of his right to the effective assistance of

counsel during the prior habeas action by failing ‘‘to

plead and present evidence and argument’’ in support

of the claims set forth in counts one and two. The

petitioner argued that there was a reasonable probability that, but for Russell’s deficient performance, the

result of the petitioner’s prior habeas action would have

been favorable to him.

With respect to the substantive allegations in the

amended petition, the respondent, the Commissioner

of Correction, generally left the petitioner to his proof.

With respect to claims one and two, the respondent

alleged as a special defense that, to the extent that the

petitioner intended to raise these claims as freestanding

claims against trial counsel, they were successive and
should be dismissed. Additionally, with respect to claim

one, the respondent alleged that, absent a showing that

the Appellate Court denied a motion seeking permission

to file a late appeal from the trial court’s denial of

the petitioner’s motion to withdraw his guilty plea, the

petitioner’s claim related to his right to appeal was not

ripe. Also, with respect to claim two, the respondent

alleged as a special defense that the allegations set forth

in claim two were barred by res judicata and collateral

estoppel because they were raised, litigated, and

resolved against the petitioner in the prior habeas

action. Moreover, the respondent alleged that claim two

should be dismissed because it constituted a legally

noncognizable claim of ‘‘cumulative’’ error by trial counsel. Also, the respondent argued that the petitioner was

defaulted from litigating the allegations in claim two

because his conflict with Mandanici was the basis for

his motion to withdraw his guilty plea and, although

he had the opportunity to do so, he failed to appeal

from the trial court’s denial of the motion to withdraw

the guilty plea. The respondent alleged that the petitioner failed to satisfy the cause and prejudice standard

to excuse the default.

In his reply to the return, the petitioner alleged that

claims one and two were not barred by the successive

petition doctrine because, due to Russell’s ineffective

representation during the prior habeas action, he was

deprived of a full and fair opportunity to litigate these

claims in that action. With respect to claim one, the

petitioner alleged that his claim related to his right to

appeal was ripe for adjudication.4 With respect to claim

two, the petitioner alleged that the doctrines of collateral estoppel and res judicata did not apply because

the issues involved had not been litigated in a prior

proceeding. Also, the petitioner alleged that claim two

was not pleaded in a legally deficient manner. Finally,

the petitioner alleged that any procedural default with

respect to claim two was the result of the ineffective

assistance of counsel.

The court, Sferrazza, J., held a trial over the course

of two days, September 1 and October 25, 2016. Among

the evidence presented, the court heard testimony from

Mandanici, Russell, and the petitioner.

On December 7, 2016, the court rendered judgment

denying the amended petition for a writ of habeas corpus. In its thorough memorandum of decision, the court

dismissed the first and second counts of the petition

under Practice Book § 23-29 (3) because they presented

the same ground for relief, namely, ineffective representation by Mandanici, that Judge Fuger had considered

and denied in the prior habeas action. The court, however, observed that, in the present action, the petitioner

had the right to assert that Russell had rendered ineffective representation in the prior habeas action by failing

to claim that Mandanici rendered ineffective represen-
tation because Russell failed to raise the newly raised

claims on which the petitioner presently relies. These

claims are that Mandanici failed to advise him with

respect to his right to appeal from the trial court’s denial

of his motion to withdraw his guilty plea and that,

because the petitioner filed a grievance complaint

against Mandanici prior to the date of the plea, Mandanici had a conflict of interest during his representation

of the petitioner. The court proceeded to analyze the

merits of both of the petitioner’s claims of ineffective

assistance by Russell. After concluding that neither

claim had merit, it denied the habeas petition.5 Thereafter, the court granted the petitioner’s petition for certification to appeal. This appeal followed. Additional

facts will be discussed as necessary.

Before turning to the petitioner’s claims, we set forth

basic principles governing the present appeal. ‘‘The use

of a habeas petition to raise an ineffective assistance

of habeas counsel claim, commonly referred to as a

habeas on a habeas, was approved by our Supreme

Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d

818 (1992). In Lozada, the court determined that the

statutory right to habeas counsel for indigent petitioners provided in General Statutes § 51-296 (a) includes

an implied requirement that such counsel be effective,

and it held that the appropriate vehicle to challenge the

effectiveness of habeas counsel is through a habeas

petition. . . . In Lozada, the court explained that [t]o

succeed in his bid for a writ of habeas corpus, the

petitioner must prove both (1) that his appointed habeas

counsel was ineffective, and (2) that his trial counsel

was ineffective. Lozada v. Warden, supra, 223 Conn.

842. As to each of those inquiries, the petitioner is

required to satisfy the familiar two-pronged test set

forth in Strickland v. Washington, [466 U.S. 668, 687,

104 S. Ct. 2052, 80 L. Ed. 2d (1984)]. First, the [petitioner]

must show that counsel’s performance was deficient.

. . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless

a [petitioner] makes both showings, it cannot be said

that the conviction . . . resulted from a breakdown in

the adversary process that renders the result unreliable.

. . . Lozada v. Warden, supra, 223 Conn. 842–43. In

other words, a petitioner claiming ineffective assistance

of habeas counsel on the basis of ineffective assistance

of trial counsel must essentially satisfy Strickland

twice . . . .

‘‘In any case presenting an ineffectiveness claim, the

performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. . . . Judicial scrutiny of counsel’s

performance must be highly deferential and courts must

indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional

assistance; that is, the [petitioner] must overcome the

presumption that, under the circumstances, the chal-
lenged action might be considered sound trial strategy.

. . . [S]trategic choices made after thorough investigation of law and facts relevant to plausible options are

virtually unchallengeable; [but] strategic choices made

after less than complete investigation are reasonable

precisely to the extent that reasonable professional

judgments support the limitations on investigation.

. . . With respect to the prejudice prong, the petitioner

must establish that if he had received effective representation by habeas counsel, there is a reasonable probability that the habeas court would have found that he

was entitled to reversal of the conviction and a new

trial . . . .

‘‘It is well settled that in reviewing the denial of a

habeas petition alleging the ineffective assistance of

counsel, [t]his court cannot disturb the underlying facts

found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by

the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.’’ (Citations omitted; internal quotation

marks omitted.) Gerald W. v. Commissioner of Correction, 169 Conn. App. 456, 463–65, 150 A.3d 729 (2016),

cert. denied, 324 Conn. 908, 152 A.3d 1246 (2017); see

also Toccaline v. Commissioner of Correction, 177

Conn. App. 480, 499, 172 A.3d 821 (describing petitioner’s burden as ‘‘herculean task’’), cert. denied, 327 Conn.

986, 175 A.3d 45 (2017).

I

First, the petitioner claims that the court improperly

rejected his claim that Russell rendered ineffective

assistance in the prior habeas action in that he failed

to claim that Mandanici rendered ineffective assistance

by failing to advise the petitioner with respect to his

right to appeal from the denial of his motion to withdraw

his guilty plea. We disagree.

The court analyzed this claim, in relevant part, as

follows: ‘‘Between plea and sentencing, on May 26, 2000,

the petitioner expressed his desire to withdraw his

guilty plea to both Attorney Mandanici and the trial

judge in the presentence investigation report . . . and

other material sent directly to the court by the petitioner.

‘‘Before imposing sentence, the trial judge heard the

parties’ positions on this request. Attorney Mandanici

candidly acknowledged that he knew of no legal basis

to grant the petitioner’s request. Attorney Mandanici

related that the petitioner never articulated to him any

reason to withdraw the guilty plea except that the petitioner experienced a change of heart.

‘‘The trial judge inquired of the petitioner as to why

he should permit the petitioner to withdraw his guilty

plea. The petitioner responded by disavowing any

knowledge that he pleaded guilty to murder rather than
a lesser offense and by repudiating his confessions to

the police and admissions to others. The trial court

found that no legitimate basis for the withdrawal of the

guilty plea existed and denied the petitioner’s request.

‘‘Attorney Mandanici never advised the petitioner

about the opportunity to appeal from that denial, and

no appeal was timely initiated. The [Supreme] Court

denied permission to file a late appeal on September

27, 2016, more than sixteen years after the criminal

case concluded.’’

The habeas court stated that the petitioner bore the

burden of proving not only that Mandanici performed

deficiently by failing to advise him with respect to his

right to appeal, but that he suffered prejudice in that

he would have succeeded on appeal and that he would

have been acquitted following a retrial.6

The court stated: ‘‘After consideration of all the evidence adduced, the court finds that the petitioner has

failed to meet his burden of proving, by a preponderance of the evidence, that Attorney Russell was deficient for failing in the first habeas corpus [action] to

raise [a claim related to] Attorney Mandanici’s failure to

advise the petitioner about the possibility of appealing

from the denial of his request to withdraw his plea.

Judge Fasano’s denial of the request was unassailable.

Attorney Mandanici provided no good faith basis to

support that request. The petitioner voiced his complaint that he misunderstood that he [had] pleaded

guilty to felony murder, but the transcript of the plea

canvass refutes that statement.

‘‘The court finds that the petitioner’s request to withdraw his guilty plea was simply a change of mind.

Reconsideration or regret, standing alone, cannot validly support a motion to withdraw a guilty plea that was

otherwise lawfully entered. [In ruling on the petitioner’s

prior habeas petition] Judge Fuger found ‘the petitioner’s statement attacking his confession is self-serving

and unworthy of belief’ . . . . This court received no

credible evidence that Attorney Russell could have presented a stronger case before Judge Fuger to alter

that conclusion.

‘‘No legal expert testified at the habeas trial that Attorney Russell ineffectively represented the petitioner on

that issue or any other issue. The court rules that the

petitioner has failed to demonstrate either prong of the

Strickland standard with respect to Attorney Russell’s

assistance at the first habeas trial. . . . No genuine

infirmity surrounding the guilty plea existed.’’ (Citation omitted.)

In its evaluation of the merits of an appeal from Judge

Fasano’s ruling, the court observed that the petitioner

failed to demonstrate that any of the grounds as set

forth in Practice Book § 39-277

that would support a

motion to withdraw a guilty plea could be proven. As
the court observed, in light of the petitioner’s representations, he conceivably could have attempted to demonstrate under Practice Book § 39-27 (4) that Mandanici

had rendered ineffective assistance that resulted in his

decision to plead guilty. The court observed, however,

that such a claim of ineffective assistance had been

raised before and rejected on its merits by Judge Fuger

in the prior habeas action and that Judge Fuger’s decision had been affirmed on appeal.

The court stated: ‘‘At the time of his request, the

petitioner bore the burden to present facts sufficient

to persuade the trial court that his guilty plea should

be withdrawn at [that] point in the proceedings . . . .

There was no credible evidence presented at the habeas

trial before this court to support a claim that such proof

was available to Attorney Mandanici at the time the

petitioner sought to withdraw his plea. Consequently,

Attorney Russell had no professional obligation to raise

a claim of ineffective assistance for failing to advise

the petitioner of the possibility of appealing from that

denial of his request because that appeal was very likely

to fail.’’ (Citation omitted; internal quotation marks

omitted.)

In the present appeal, the petitioner argues that

although counsel is not always required to advise a

defendant of his or her right to appeal following a guilty

plea, Mandanici had a duty to advise him that he could

appeal from the denial of his motion to withdraw his

guilty plea. The petitioner argues that his conduct during the sentencing hearing demonstrated his interest in

pursuing an appeal. Moreover, the petitioner argues, the

record reflected that he was prejudiced by Mandanici’s

failure because he had several nonfrivolous claims to

raise in an appeal, which included claims with respect

to whether (1) his plea was the result of ineffective

assistance of counsel, (2) the sentencing court should

have appointed him new counsel for purpose of his

motion to withdraw his plea and should have held a

full hearing in connection with his motion to withdraw

his plea, and (3) he did not fully understand the charges

contemplated by the plea agreement. The petitioner

acknowledges that, in addressing Judge Fasano, he did

not articulate a basis for his motion, but he argues that

it was unnecessary for him to do so because he provided

a basis in his correspondence to the court and that, in

denying the motion to withdraw the guilty plea, the

sentencing court failed to address the concerns set forth

therein, namely, that he had not understood the nature

of the plea agreement and that he was dissatisfied with

Mandanici’s representation.

In Ghant v. Commissioner of Correction, 255 Conn.

1, 7–10, 761 A.2d 740 (2000), our Supreme Court, relying

on Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145

L. Ed. 2d 985 (2000), set forth the applicable standard

of review under the federal constitution in the determi-
nation of whether counsel is ineffective in failing to

apprise a defendant of the right to appeal from a guilty

plea. The court stated: ‘‘Roe has clarified the applicable

standard of review under the federal constitution in

the determination of whether counsel is ineffective in

failing to apprise a defendant of the right to appeal from

a guilty plea. The Supreme Court held that, in such a

case, counsel has a constitutional obligation to advise a

defendant of appeal rights when either (1) the defendant

has reasonably demonstrated to counsel his or her interest in filing an appeal, or (2) a rational defendant would

want to appeal under the circumstances. . . .

‘‘The Supreme Court began its decision in Roe with

a review of Strickland v. Washington, supra, 466 U.S.

687, in which the court had held that criminal defendants have a sixth amendment right to ‘reasonably effective’ legal assistance. Under Strickland, a defendant

claiming ineffective assistance of counsel must demonstrate that (1) counsel’s representation fell below an

objective standard of reasonableness . . . and (2)

counsel’s deficient performance prejudiced the defendant in that there was a reasonable probability that the

result of the proceeding would have been different. . . .

‘‘The Supreme Court in Roe then further articulated

that ‘this [Strickland] test applies to claims, like [the

petitioner’s in Roe] that counsel was constitutionally

ineffective for failing to file a notice of appeal.’ Roe v.

Flores-Ortega, supra, 528 U.S. 477. ‘[N]o particular set

of detailed rules for counsel’s conduct can satisfactorily

take account of the variety of circumstances faced by

defense counsel. . . . Rather, courts must judge the

reasonableness of counsel’s conduct on the facts of

the particular case, viewed as of the time of counsel’s

conduct . . . and [j]udicial scrutiny of counsel’s performance must be highly deferential . . . .’ ’’ (Citations

omitted.) Ghant v. Commissioner of Correction, supra,

255 Conn. 7–8.

‘‘The court in Roe began its analysis with the first

part of the Strickland test and enunciated the rule to

be applied to ineffective assistance claims concerning

the failure to take an appeal. ‘In those cases where the

defendant neither instructs counsel to file an appeal

nor asks that an appeal not be taken, we believe the

question whether counsel has performed deficiently by

not filing a notice of appeal is best answered by first

asking . . . whether counsel in fact consulted with the

defendant about an appeal. We employ the term ‘‘consult’’ to [mean] . . . advising the defendant about the

advantages and disadvantages of taking an appeal, and

making a reasonable effort to discover the defendant’s

wishes. If counsel has consulted with the defendant

. . . [c]ounsel performs in a professionally unreasonable manner only by failing to follow the defendant’s

express instructions with respect to an appeal. . . . If

counsel has not consulted with the defendant, the court
must in turn ask a second, and subsidiary, question:

whether counsel’s failure to consult with the defendant

itself constitutes deficient performance. . . . And,

while States are free to impose whatever specific rules

they see fit to ensure that criminal defendants are well

represented . . . the Federal Constitution imposes

one general requirement: that counsel make objectively

reasonable choices.’ . . . Roe v. Flores-Ortega, supra,

528 U.S. 478–79 . . . .

‘‘Rejecting a bright line test that would require counsel always to consult with a defendant regarding an

appeal, the court in Roe stated: ‘We . . . hold that

counsel has a constitutionally imposed duty to consult

with the defendant about an appeal when there is reason

to think either (1) that a rational defendant would want

to appeal (for example, because there are nonfrivolous

grounds for appeal), or (2) that this particular defendant

reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts

must take into account all the information counsel knew

or should have known. . . . Although not determinative, a highly relevant factor in this inquiry will be

whether the conviction follows a trial or a guilty plea,

both because a guilty plea reduces the scope of potentially appealable issues and because such a plea may

indicate that the defendant seeks an end to judicial

proceedings. Even in cases when the defendant pleads

guilty, the court must consider such factors as whether

the defendant received the sentence bargained for as

part of the plea and whether the plea expressly reserved

or waived some or all appeal rights. Only by considering

all relevant factors in a given case can a court properly

determine whether a rational defendant would have

desired an appeal or that the particular defendant sufficiently demonstrated to counsel an interest in an

appeal.’ . . . [Id.] 480.

‘‘The second part of the Strickland test, as enunciated

in Roe, requires the defendant to show prejudice from

counsel’s deficient performance. . . . ‘[T]o show prejudice [when counsel fails to apprise a defendant of his

or her appellate rights], a defendant must demonstrate

that there is a reasonable probability that, but for counsel’s deficient failure to consult with him about an

appeal, he would have timely appealed.’ Id., 484. The

court further articulated that ‘whether a given defendant has made the requisite showing will turn on the

facts of a particular case. . . . [E]vidence that there

were nonfrivolous grounds for appeal or that the defendant in question promptly expressed a desire to appeal

will often be highly relevant in making this determination.’ . . . Id., 485.’’ (Citations omitted; emphasis in

original; footnote omitted.) Ghant v. Commissioner of

Correction, supra, 255 Conn. 8–10.8

Having set forth the court’s findings of fact and the

legal standard governing the present claim, we turn to
an examination of the merits of the petitioner’s claim

that Mandanici rendered ineffective assistance by failing to advise him concerning his right to appeal and

that Russell rendered ineffective assistance by failing

to raise such a claim in the prior habeas action. In the

present case, there is no factual dispute that Mandanici

did not consult with the petitioner concerning his appellate rights following the denial of the motion to withdraw the guilty plea. In determining, under Strickland’s

first prong, whether Mandanici had a constitutional

obligation to advise the petitioner concerning his right

to appeal, we first consider in our plenary review

whether the issues arising from the denial of the motion

to withdraw the guilty plea had such a degree of merit

that a rational defendant would have wanted to appeal.

In arguing that Russell rendered ineffective assistance during the prior habeas trial, the petitioner argues

that the record supports a finding that a rational defendant would have appealed from Judge Fasano’s denial

of his motion to withdraw his guilty plea. He asserts

that, setting aside what he expressly stated to Judge

Fasano when he was asked why he wanted to withdraw

his plea,9 he had alerted the court in a correspondence

that his plea was the result of ineffective assistance by

Mandanici and that he did not understand the charges

contemplated by the plea agreement.10 At the time that

Judge Fasano addressed the petitioner and Mandanici,

Judge Fasano stated that he was aware of the petitioner’s correspondence. Assuming that, in addition to what

the petitioner stated at the sentencing hearing when

Judge Fasano afforded him an opportunity to explain

his motion, Judge Fasano should have considered the

content of any correspondence he had received from

the petitioner concerning the motion, the petitioner is

unable to demonstrate that the grounds for the motion

to withdraw his plea were nonfrivolous in nature.

Previously in this opinion, we set forth in detail the

habeas court’s findings of fact. The habeas court

expressly found that the petitioner’s motion to withdraw his guilty plea was not related to ineffective representation by Mandanici or any misunderstanding by the

petitioner. It is significant that, in its role as fact finder,

the habeas court found that the petitioner’s motion to

withdraw his guilty plea reflected that he simply had

changed his mind about the plea. The court found that

there was ‘‘no credible evidence’’ to support the petitioner’s claim that Mandanici should have been aware

of a valid ground on which the petitioner may have

based his motion. Consequently, the habeas court found

that Russell was not deficient for failing to raise a claim

related to Mandanici’s assistance. The habeas court

made findings of fact that undermine the petitioner’s

claim that nonfrivolous grounds existed to support an

appeal from Judge Fasano’s ruling. The petitioner has

not demonstrated that the court’s findings of fact lack

support in the evidence.
The petitioner also argues that a nonfrivolous basis

to appeal existed because Judge Fasano did not appoint

new counsel to litigate the motion to withdraw the

guilty plea or conduct an adequate hearing into the

motion.11 Regardless of whether the petitioner in the

present case was afforded a full evidentiary hearing or

new counsel to assist him in presenting his motion,

he was afforded a full opportunity to demonstrate the

merits of his motion during the present habeas trial.

Specifically, the habeas trial afforded him a full opportunity to demonstrate that a reasonable defendant in his

position would have appealed because nonfrivolous

grounds for an appeal existed. After examining the evidence presented by the petitioner, however, the habeas

court found that he was unable to demonstrate that

a nonfrivolous ground for appeal existed because the

motion was based not on a defect in Mandanici’s representation or confusion about the nature of the charge,

but on the fact that the petitioner had changed his mind.

The petitioner cannot dispute that such a change of

heart concerning the plea is an invalid basis upon which

to base a motion to withdraw a plea. This finding is

fatal to the petitioner’s claim that there were viable

grounds to appeal and, thus, that a rational defendant

would have wanted to bring an appeal to pursue

these grounds.

Next, in determining whether Mandanici had a constitutional obligation to advise the petitioner concerning

his right to appeal, we consider under our plenary standard of review whether the evidence as a whole reflects

that the petitioner had reasonably demonstrated to

Mandanici that he was interested in appealing from

Judge Fasano’s denial of his motion to withdraw the

guilty plea. As we stated previously in this opinion, the

habeas court did not analyze the petitioner’s claim in

light of the currently recognized standard as set forth

in Roe and did not set forth any findings of fact with

respect to this distinct issue. See footnote 6 of this

opinion. As a reviewing court, we must rely on the

factual findings of the habeas court unless they are not

supported by the record. Despite the absence of specific

factual findings with respect to this issue, we may examine the evidence to determine whether the petitioner

presented evidence on which the habeas court reasonably could have found that such a showing had been

made. If such evidence is lacking, the court’s failure to

make any relevant findings, under the Roe standard,

with respect to the issue of whether the petitioner demonstrated an interest in appealing is harmless.

At the present habeas trial, the petitioner presented

the transcripts from his prior habeas proceeding in

2003. The petitioner’s testimony at that prior proceeding

does not reflect that he had asked Mandanici about his

right to appeal from the denial of his motion to withdraw

his guilty plea or had otherwise indicated to Mandanici
that he was interested in bringing an appeal. Likewise,

during Mandanici’s testimony at the prior habeas trial,

Mandanici did not testify that the petitioner had asked

him about his right to appeal or had otherwise stated

that he was interested in bringing an appeal. Rather,

Mandanici testified that he did not believe that there

were grounds for bringing the motion to withdraw the

guilty plea and that the petitioner wanted to withdraw

his plea ‘‘because he had changed his mind.’’

During his testimony at the present habeas trial, the

petitioner explained the reasons why he wanted to withdraw his plea and his view that he did not want to

proceed to trial under Mandanici’s representation. He

stated that, by the time of the sentencing hearing, he

had filed a grievance complaint against Mandanici and

that his relationship with Mandanici had deteriorated.

He testified that prior to his appearance at the sentencing hearing, he had not even discussed his desire to

withdraw his plea with Mandanici. The petitioner testified that, after the sentencing hearing and the court’s

denial of his motion, he did not speak with Mandanici.

He testified that Mandanici did not advise him that he

could appeal from Judge Fasano’s ruling, and, in fact,

he and Mandanici did not have any discussions about

the topic of an appeal. He testified that he was unaware

that he could appeal from that ruling but that he ‘‘most

likely’’ would have appealed if he knew that he could

do so. At the present habeas trial, Mandanici testified

that he could not recall whether he spoke with the

petitioner following the sentencing hearing.

The petitioner broadly asserts in his appellate brief

that his ‘‘actions’’ at the sentencing hearing ‘‘reasonably

demonstrated that he would be interested in pursuing

an appeal.’’ (Internal quotation marks omitted.) Our

careful review of the transcript of the sentencing hearing, however, does not reflect that the petitioner made

any reference to an appeal or, in lay terms, bringing any

type of challenge to Judge Fasano’s ruling. Although,

at the hearing, the petitioner communicated with the

court with respect to the reasons why he believed that

he should be permitted to withdraw his guilty plea and

expressed his dissatisfaction with Mandanici, none of

his statements reasonably may be interpreted to reflect

a desire to further pursue the issue.

The evidence, therefore, reflects that despite the fact

that, during the present habeas trial, he expressed his

desire to bring an appeal from Judge Fasano’s ruling,

there was no evidence that he demonstrated such an

interest to Mandanici or inquired to any extent about

his appellate rights.12 Because the evidence, viewed in

its entirety, does not support a finding that the petitioner reasonably demonstrated to Mandanici that he

was interested in bringing an appeal from Judge

Fasano’s denial of his motion to withdraw the guilty

plea, the petitioner has not demonstrated that, despite
the fact that there were not any nonfrivolous grounds

for an appeal, Mandanici had a constitutional obligation

to advise him about his right to appeal.

In light of the foregoing, we conclude that the petitioner is unable to demonstrate that, in the prior habeas

action, Russell rendered ineffective assistance by failing

to pursue a claim concerning Mandanici’s failure to

advise him concerning his right to appeal.

II

Next, the petitioner claims that the court improperly

rejected his claim that Russell rendered ineffective

assistance in that he failed to present evidence in support of the petitioner’s claim that his guilty plea was

the result of Mandanici’s ineffective assistance. We

decline to reach the merits of this unpreserved claim.

In support of this claim, the petitioner argues that,

at the prior habeas trial, he testified, inter alia, about

the ways in which, in his view, Mandanici rendered

ineffective assistance. The petitioner argues, however,

that, at the prior habeas trial, Russell failed to present

testimony from him that would have demonstrated how

the deficiencies in Mandanici’s representation

‘‘impacted his decision to plead guilty, or what would

have needed to change in order for the petitioner to have

rejected the plea and proceeded to trial.’’ He argues that

the judgment of the habeas court should be reversed

because Russell’s failure to present such testimony

deprived him of the effective assistance of habeas

counsel.

The state argues, and we agree, that the petitioner

did not plead this ground in his habeas petition. ‘‘It is

well settled that [t]he petition for a writ of habeas corpus is essentially a pleading and, as such, it should

conform generally to a complaint in a civil action. . . .

The principle that a plaintiff may rely only upon what

he has alleged is basic. . . . It is fundamental in our

law that the right of a plaintiff to recover is limited to

the allegations of his complaint. . . . While the habeas

court has considerable discretion to frame a remedy

that is commensurate with the scope of the established

constitutional violations . . . it does not have the discretion to look beyond the pleadings and trial evidence

to decide claims not raised.’’ (Internal quotation marks

omitted.) Abdullah v. Commissioner of Correction, 123

Conn. App. 197, 202, 1 A.3d 1102, cert. denied, 298 Conn.

930, 5 A.3d 488 (2010); see also Arriaga v. Commissioner of Correction, 120 Conn. App. 258, 262, 990 A.2d

910 (2010), appeal dismissed, 303 Conn. 698, 36 A.3d

224 (2012).

Thus, we turn to the petitioner’s amended petition.

In count three of his amended petition, the only count

based on Russell’s representation, he alleged in relevant

part that ‘‘[Russell’s] performance was deficient

because he failed to plead and present evidence and
argument in support of the claims’’ previously set forth

in his petition. These claims were, in count one, that

Mandanici was ineffective for failing to advise the petitioner that he had the right to appeal from Judge

Fasano’s denial of his oral motion to withdraw his guilty

plea and, in count two, that ‘‘[t]he petitioner’s defense

was adversely affected by [Mandanici’s] actual conflict

of interest . . . .’’ (Emphasis added.) In count two, the

petitioner alleged that he was prejudiced by a conflict

of interest because Mandanici failed to reasonably communicate with him, to adequately investigate the allegations against him, to zealously advocate for him during

plea negotiations, and to advise him about his right to

appeal from Judge Fasano’s denial of his motion to

withdraw his guilty plea. Nowhere in the amended petition13 did the petitioner allege that Russell was deficient

for failing to present evidence in support of a claim

that his decision to plead guilty was the product of any

type of deficiencies in Mandanici’s representation generally.14

In light of the fact that the petitioner did not distinctly

raise the current claim in his amended petition, it is

unsurprising that the court did not expressly rule on it

in its thorough memorandum of decision.15 ‘‘This court

is not bound to consider claimed errors unless it

appears on the record that the question was distinctly

raised . . . and was ruled upon and decided by the

court adversely to the [petitioner’s] claim. . . . This

court is not compelled to consider issues neither alleged

in the habeas petition nor considered at the habeas

proceeding . . . .’’ (Internal quotation marks omitted.)

Satchwell v. Commissioner of Correction, 119 Conn.

App. 614, 619, 988 A.2d 907, cert. denied, 296 Conn. 901,

991 A.2d 1103 (2010); see also Greene v. Commissioner

of Correction, 131 Conn. App. 820, 822, 29 A.3d 171

(2011), cert. denied, 303 Conn. 936, 36 A.3d 695 (2012).

Accordingly, we decline to reach the merits of this

claim.16

III

Finally, the petitioner claims that the court improperly rejected his claim that Russell rendered ineffective

assistance in his prior habeas action by failing to claim

that Mandanici’s conflict of interest resulted in the petitioner’s guilty plea. We disagree.

In rejecting the petitioner’s claim, the habeas court

stated in relevant part: ‘‘The petitioner alleges that . . .

Russell represented him deficiently because he failed

to raise the claim that . . . Mandanici had a conflict

of interest in continued representation of the petitioner

during his criminal case. The purported basis for that

conflict of interest claim was that the petitioner had,

on February 19, 2000, filed a complaint against . . .

Mandanici with the Statewide Grievance Committee

while the criminal case was pending. That grievance

was ultimately dismissed because the committee deter-
mined that no misconduct occurred. This allegation

of ineffective assistance by habeas counsel fails for

multiple reasons.

‘‘First, the gist of the petitioner’s grievance was that

he was dissatisfied with the amount of investigation

performed and the lack of communication with the

petitioner by . . . Mandanici. This form of discontent

fails to create a conflict of interest requiring the removal

of counsel . . . .

‘‘Unhappiness with the perceived performance of

counsel by a criminal defendant creates no ground for

conflict of interest requiring removal of counsel . . . .

Insignificant and unsubstantiated criticisms of trial

counsel are insufficient to warrant withdrawal by that

lawyer . . . . The filing of a grievance based on that

perception is likewise insufficient to implicate violation

of the defendant’s sixth amendment rights and does

not disqualify the attorney who is the subject of that

grievance from continuing to represent the recalcitrant

client . . . . Consequently, the supposed conflict of

interest engendered by the lodging of the grievance

against . . . Mandanici afforded a very shaky legal

ground on which . . . Russell could assert such a claim

at the earlier habeas proceeding.

‘‘Second, the petitioner’s later guilty plea waived any

conflict of interest claim even if . . . the ersatz disqualifying circumstance existed. The petitioner pleaded

guilty on April 14, 2000, around two months after he

grieved . . . Mandanici. The general rule is that a guilty

plea waives all nonjurisdictional defects antecedent to

the entering of the plea, including defects asserting

constitutional deprivations . . . . Only defects which

implicate the subject matter jurisdiction of the court

survive a later valid guilty plea, and effects asserting

lack of personal jurisdiction over an accused are waived

by a subsequent guilty plea. . . . This waiver rule

applies equally to matters raised by way of direct appeal

or by collateral attack, such as through a petition for

habeas corpus relief . . . .’’ (Citations omitted; emphasis in original; internal quotation marks omitted.)

Then, the court discussed Connecticut Supreme

Court and federal court case law in support of the well

settled proposition that a later guilty plea waives claims

of ineffectiveness of counsel at earlier proceedings

unrelated to the taking of a plea. The court correctly

observed that, unless an alleged conflict of interest was

shown to have rendered a plea itself to be involuntarily

or unknowingly made, a claim of a conflict of interest

by an accused’s attorney is waived for all purposes by

virtue of a guilty plea.

The court stated: ‘‘This court’s review of the petitioner’s plea hearing transcript discloses that the petitioner

entered that plea, under the Alford doctrine, knowingly

and voluntarily. Whatever psychological role the peti-
tioner’s dissatisfaction with . . . Mandanici’s previous

representation may have played in his decision to plead

guilty is immaterial. What counts is that the petitioner

understood the rights he gave up by pleading guilty,

the nature of the charge against him, the strengths and

weaknesses of the state’s case and his own, the punishments available for that offense, and the terms of the

agreed disposition. This court’s examination of the

record leads it to concur with Judge Fuger’s finding on

the same point that the petitioner ‘freely made the

choice to give up his constitutional right to a trial in

order to obtain favorable consideration upon sentencing’ . . . .

‘‘This waiver provides additional support for the conclusion that . . . Russell acted properly and professionally when he omitted such a dubious claim in the

first habeas case.’’

On appeal, the petitioner argues that the court

improperly raised the issue of waiver sua sponte and

in reliance on that doctrine determined that he was

unable to demonstrate that Russell rendered ineffective

representation by failing to pursue a claim in the prior

habeas action related to Mandanici’s conflict of interest.

The petitioner accurately observes that the respondent

did not allege waiver as a special defense in his return.

The petitioner argues that it was improper for the court

to have disposed of his claim based on that defense

because he was without notice that the court would

rely on waiver. He argues that, ‘‘[a]lthough the issue of

whether waiver must be pleaded by the respondent in

a habeas case before a habeas court can dismiss a

petition on grounds of waiver has not been directly

been addressed by Connecticut courts,’’ appellate case

law and Practice Book § 23-30 (b), which requires the

respondent to allege in the return ‘‘facts in support of

any claim . . . that the petitioner is not entitled to

relief,’’ support a determination that a habeas court may

not sua sponte raise a special defense and dispose of

a claim in reliance thereupon. The petitioner relies heavily on this court’s holdings in Diaz v. Commissioner

of Correction, 157 Conn. App. 701, 706–707, 117 A.3d

1003 (2015), appeal dismissed, 326 Conn. 419, 165 A.3d

147 (2017), and Barlow v. Commissioner of Correction,

150 Conn. App. 781, 786–87, 93 A.3d 165 (2014). In

both Diaz and Barlow, this court concluded that it was

reversible error for a habeas court to have sua sponte

raised the affirmative defense of procedural default and

thereafter to have dismissed a habeas petition on that

ground that had not been pleaded by the respondent.

Diaz v. Commissioner of Correction, supra, 706–707;

Barlow v. Commissioner of Correction, supra, 786–87.

We are not persuaded by the petitioner’s argument

concerning waiver because, contrary to the petitioner’s

characterization of the court’s analysis, the court’s decision does not reflect that it sua sponte either raised an
affirmative defense (or a claim that the petitioner was

not entitled to relief) or dismissed the petition, in whole

or in part, on the basis of such defense or claim. The

court did not conclude that the petitioner had waived

his claim that Russell had deprived him of ineffective

representation during the prior habeas action. Under

Strickland, it was appropriate for the court to evaluate

what prejudice, if any, resulted to the petitioner as a

result of Russell’s alleged deficient performance. The

court, in evaluating whether the petitioner met his burden of demonstrating that Russell had prejudiced him

by failing to raise a claim related to Mandanici’s alleged

conflict of interest relied, in part, on its conclusion that

the claim that Russell did not raise would have been

waived by virtue of the petitioner’s guilty plea. Thus,

the court considered and rejected the petitioner’s claim

against Russell on its merits, concluding that the waiver

doctrine provided ‘‘additional support’’ for its determination that the underlying claim against Mandanici that

Russell did not raise at the prior proceeding was ‘‘dubious,’’ at best, when viewed in light of state and federal

authority concerning what types of claims may be raised

following a valid guilty plea. The habeas court did not

determine that the petitioner’s claim arising from Russell’s representation was waived nor did it dismiss that

portion of the petition on that ground.

Additionally, the petitioner argues that, even if the

court properly considered the issue of waiver, it improperly relied on that doctrine because his testimony at

the habeas trial reflected that the breakdown in his

relationship with Mandanici and his concern that Mandanici would not represent him zealously at trial was

‘‘the catalyst for his decision to accept the guilty plea.’’

The petitioner argues that the evidence presented,

including his testimony, demonstrated ‘‘a direct nexus’’

between the conflict of interest involving Mandanici

and his guilty plea. The petitioner urges us to conclude

that because he was able to prove this factual link

between the conflict of interest and his plea, such a

showing necessarily provided him with a valid ground

to withdraw his plea under Practice Book § 39-27.

Accordingly, the petitioner argues, the court should not

have concluded that the conflict of interest claim was

not strong and, thus, that Russell did not deprive him

of his right to effective representation by not raising it

in the prior habeas action.

In this aspect of his argument, the petitioner urges

us to conclude that, to the extent that the court did not

view his testimony and other evidence concerning his

dissatisfaction with Mandanici as proof that Mandanici’s conflict of interest was inherently related to his

guilty plea, the court’s findings are clearly erroneous.

As we have discussed previously in this opinion, the

court recognized that it was significant to determine

whether the claimed conflict of interest somehow ren-
dered the petitioner’s plea invalid. The court explained

in its memorandum of decision, however, that ‘‘[t]he

petitioner’s request to withdraw his guilty plea was

simply a change of mind. Reconsideration or regret,

standing alone, cannot validly support a motion to withdraw a guilty plea that was otherwise lawfully entered.’’

The court unambiguously found that the petitioner’s

plea was knowingly and voluntarily made, explicitly

rejecting the petitioner’s argument that his dissatisfaction with Mandanici and the issues surrounding the

filing of his grievance complaint influenced his decision

to plead guilty. In making this finding, which is fatal

to the petitioner’s claim, the court stated that it had

examined the record and, in particular, the transcript

of the plea hearing of April 4, 2000.

We reiterate that we ‘‘cannot disturb the underlying

facts found by the habeas court unless they are clearly

erroneous . . . .’’ (Internal quotation marks omitted.)

Gerald W. v. Commissioner of Correction, supra, 169

Conn. App. 465. ‘‘[A] finding of fact is clearly erroneous

when there is no evidence in the record to support it

. . . or when although there is evidence to support it,

the reviewing court on the entire evidence is left with

the definite and firm conviction that a mistake has been

committed.’’ (Internal quotation marks omitted.) Diaz

v. Commissioner of Correction, 174 Conn. App. 776,

786, 166 A.3d 815, cert. denied, 327 Conn. 957, 172 A.3d

204 (2017). ‘‘[T]he 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.’’ (Internal quotation marks omitted.) Bennett v. Commissioner of Correction, 182 Conn. App. 541, 555–56, A.3d (2018).

The petitioner relies on the weight of his testimony,

in which he attempted to demonstrate that his plea was

not knowingly and voluntarily made, as well as other

evidence presented at the habeas trial to demonstrate

that at the time of the plea he was dissatisfied with

Mandanici’s representation. The court, having had a

firsthand vantage point from which to observe the petitioner testify about the plea and assess the truthfulness

of his testimony, was not obligated to accept as true

the petitioner’s version of the facts, specifically, that he

was compelled to plead guilty by virtue of Mandanici’s

ineffectiveness and the filing of the grievance complaint. The court relied on the transcript of the plea

hearing, which reflects that the petitioner had been

thoroughly canvassed by Judge Fasano and, despite his

expressions of dissatisfaction with Mandanici, nonetheless indicated, among other things, that he was agreeable to the plea agreement, that he was satisfied with

Mandanici’s advice concerning the plea, that he

believed that he was doing the right thing by pleading

guilty, that he understood the rights he was giving up

by pleading guilty, that he was pleading guilty voluntarily, that he understood the state’s case against him,

that he understood the punishment he was facing if he
proceeded to trial, and that he was motivated to plead

guilty rather than risk receiving a heavier penalty following a trial. Thus, the court’s factual finding concerning the voluntariness of the plea is supported by

evidence in the record. We are not persuaded that a

mistake has been made.

The judgment is affirmed.

In this opinion the other judges concurred.

1 See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d

162 (1970).

2 The petitioner was put to plea for ‘‘felony murder in violation of . . .

§ 53a-54c.’’ As part of its canvass, the court asked the petitioner if had an

opportunity to discuss with his attorney the elements of the offense and

the evidence on which the state relied. Also, the court asked the petitioner

if he understood the elements of the offense and the evidence on which

the state relied. To both inquiries, the petitioner replied, ‘‘Yes.’’ Further, the

court asked Mandanici if he was satisfied that the petitioner understood

the elements of the offense and the evidence on which the state relied.

Mandanici replied affirmatively. The court did not further discuss the offense

or the elements thereof.

None of the petitioner’s claims in his amended petition for a writ of habeas

corpus is based on an inadequacy in the court’s canvass and, thus, such a

claim is not before us. Nonetheless, we observe that, to dispel any possible

confusion concerning the nature of the offense in cases such as the present

case, it would be helpful for trial courts to clarify, during their plea canvasses,

that when an accused pleads guilty to ‘‘felony murder’’ under the felony

murder statute, § 53a-54c, he is, in fact, pleading guilty to a type of murder,

other than intentional murder, and is, accordingly, subject to the same

penalties that may be imposed for the crime of murder.

3

In the grievance complaint, the petitioner alleged in general terms that

Mandanici failed to investigate his case and failed to communicate with him

concerning his defense. The statewide grievance committee concluded that

Mandanici had not breached ethical standards in his representation of the

petitioner and, therefore, dismissed the complaint.

4 At trial, the petitioner presented evidence that by motion dated July 28,

2016, he sought permission from this court to file a late appeal from Judge

Fasano’s May 26, 2000 denial of his oral motion to withdraw his guilty plea,

as well as an order from our Supreme Court, dated September 27, 2016,

denying the motion.

5 We will set forth the basis for the court’s decision in the context of the

claims raised on appeal.

6

In its analysis of the petitioner’s claim of whether Russell deprived him

of his right to effective representation by failing to claim in the prior habeas

action that Mandanici deprived him of his right to effective representation

by failing to advise him of his right to appeal from Judge Fasano’s denial

of his motion to withdraw his guilty plea, the court relied on what it believed

to be authorities that governed an analysis of the claim in 2003, when Russell

represented the petitioner, namely, Bunkley v. Commissioner of Correction,

222 Conn. 444, 454, 610 A.2d 598 (1992), and Copas v. Commissioner of

Correction, 234 Conn. 139, 151, 662 A.2d 718 (1995). The court correctly

recognized that these cases later were overruled by Small v. Commissioner

of Correction, 286 Conn. 707, 723, 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), and

Carraway v. Commissioner of Correction, 317 Conn. 594, 600 n.6, 119 A.3d

1153 (2015), respectively.

The parties submit, and we agree, that the proper framework for evaluating

an ineffective assistance of counsel claim based on counsel’s failure to

advise a defendant about his appellate rights following a guilty plea is based

on an evaluation of whether counsel’s deficient performance deprived a

defendant of an appeal that he would have taken. This framework, which

we will discuss in detail, was set forth in Roe v. Flores-Ortega, 528 U.S. 470,

120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000), and it has been followed by our

appellate courts. See, e.g., Ghant v. Commissioner of Correction, 255 Conn.

1, 7, 761 A.2d 740 (2000); Shelton v. Commissioner of Correction, 116 Conn.

App. 867, 878–79, 977 A.2d 714, cert. denied, 293 Conn. 936, 981 A.2d 1080

(2009). This is the standard under which we will evaluate the petitioner’s

claim. The fact that the habeas court utilized a different standard in its
evaluation of the present claim does not affect our plenary evaluation of

the claim. As we explain in our subsequent analysis, the habeas court’s

detailed factual findings, which are supported by the evidence, amply support a conclusion that the petitioner is unable to prevail under the currently

recognized standard.

Moreover, to the extent that the petitioner argues that the court erroneously relied on Copas in its analysis of the petitioner’s claim that Russell

rendered ineffective representation by failing to pursue a claim related to

an alleged conflict of interest on the part of Mandanici, the habeas court’s

memorandum of decision does not support the claim.

7 Practice Book § 39-27 provides: ‘‘The grounds for allowing the defendant

to withdraw his or her plea of guilty after acceptance are as follows:

‘‘(1) The plea was accepted without substantial compliance with Section

39-19;

‘‘(2) The plea was involuntary, or it was entered without knowledge of

the nature of the charge or without knowledge that the sentence actually

imposed could be imposed;

‘‘(3) The sentence exceeds that specified in a plea agreement which had

been previously accepted, or in a plea agreement on which the judicial

authority had deferred its decision to accept or reject the agreement at the

time the plea of guilty was entered;

‘‘(4) The plea resulted from the denial of effective assistance of counsel;

‘‘(5) There was no factual basis for the plea; or

‘‘(6) The plea either was not entered by a person authorized to act for a

corporate defendant or was not subsequently ratified by a corporate

defendant.’’

8 We observe that, in Roe, the United States Supreme Court rejected a

resort to a bright line rule that counsel must always consult with a defendant

regarding an appeal. Roe v. Flores-Ortega, supra, 528 U.S. 480. Rather than

adhering to what it considered to be per se rules governing the conduct of

defense counsel, the court crafted an approach that focused on whether

the failure to consult with a defendant regarding an appeal was reasonable in

light of the particular circumstances of each case. Id., 481. We acknowledge,

however, that the court in Roe stated that it was ‘‘the better practice for

counsel routinely to consult with the defendant regarding the possibility of

an appeal.’’ Id., 479.

9 The record reflects that at the sentencing hearing on May 26, 2000, Judge

Fasano invited the petitioner to indicate a basis on which his motion to

withdraw the plea should be granted. The petitioner stated that Mandanici

was aware that he did not commit murder, that the confession on which

the state relied was ‘‘bull shit,’’ and that he believed that he would ‘‘get a

lesser charge.’’ When the petitioner stated that he was not pleading to

murder, Judge Fasano reminded the petitioner that such a plea already had

been made and accepted by the court.

10 The correspondence on which the petitioner relies is addressed to Judge

Fasano and is dated May 8, 2000. In this handwritten correspondence, the

petitioner stated, in relevant part, that he was ‘‘unaware of what was really

going on’’ with respect to the plea, Mandanici did not explain things adequately to him with respect to the plea, Mandanici did not communicate

effectively with him, he believed that he was forced into making a plea, he

no longer wanted to enter into a plea agreement, he wanted to proceed to

trial, and he wanted an attorney appointed to represent him at trial.

11 The defendant relies on this court’s reasoning in State v. Simpson, 169

Conn. App. 168, 184–204, 150 A.3d 699 (2016). In Simpson, a direct appeal,

this court determined that the trial court improperly had failed to conduct

an evidentiary hearing on the defendant’s motion to withdraw his guilty

plea based on his representation that he did not understand the nature of

the charge to which he pleaded guilty and that the trial court improperly

had failed to inquire into his request for new counsel. Id. Following this

court’s decision, our Supreme Court granted certification to appeal. State

v. Simpson, 324 Conn. 904, 151 A.3d 1289 (2016). Following oral argument

in the present appeal, our Supreme Court officially released its decision

reversing this court’s judgment. State v. Simpson, 329 Conn. 820, A.3d

(2018). Our Supreme Court concluded that the trial court had conducted

an adequate hearing on the motion to withdraw the guilty plea and that an

evidentiary hearing was unnecessary. Id., 842. Also, our Supreme Court

concluded that the trial court was not required to conduct a hearing on the

defendant’s request for new counsel. Id.

The defendant’s reliance on this court’s decision in Simpson is unavailing,

and a careful review of our Supreme Court’s decision in Simpson does not
lend any support to the defendant’s claim that he had advanced a nonfrivolous ground in connection with his motion to withdraw his guilty plea.

12 At the present habeas trial, the petitioner testified that several days

following the sentencing hearing, he ‘‘tried to reach’’ Mandanici. It is unclear

from the petitioner’s testimony, however, whether he actually spoke with

Mandanici following the sentencing hearing or why he wanted to speak to

Mandanici. The petitioner testified, however, that approximately one year

following the sentencing hearing, he contacted the public defender’s office

in an attempt to obtain information about how to ‘‘withdraw the plea,’’ but

he was advised that the time period in which to appeal from Judge Fasano’s

ruling had expired.

13 We observe, however, that the petitioner briefly mentioned the present

claim in his posttrial brief, in which he argued that, in his prior habeas

action, he bore the burden of demonstrating that he was prejudiced by

Mandanici’s ineffective assistance by proving that, if Mandanici had not

performed deficiently, he would have rejected the state’s plea offer and

proceeded to trial. He argued in relevant part that Russell was ineffective

for his failure ‘‘to present testimony that he would not have [pleaded] guilty if

[he had been] properly represented [by Mandanici].’’ Although the petitioner

made this argument in his posttrial brief, he did not distinctly raise it before

the habeas court. ‘‘Claims raised for the first time in posttrial briefs are not

reviewable by the habeas court or by this court on appeal.’’ (Internal quotation marks omitted.) Antwon W. v. Commissioner of Correction, 172 Conn.

App. 843, 877, 163 A.3d 1223, cert. denied, 326 Conn. 909, 164 A.3d 680 (2017).

14 Our conclusion that the petitioner’s second claim is not based on ineffective representation, but on a conflict of interest, is bolstered by the fact

that, in count two of the amended petition, the petitioner alleged that his

claim, based on the existence of a conflict of interest, was not previously

raised. As we stated previously in this opinion, one of the grounds of the

petitioner’s prior habeas petition, in 2003, was that Mandanici rendered

ineffective assistance and, because of this constitutional violation, he should

be permitted to withdraw his guilty plea.

15 Presumably, if the petitioner believed that the habeas court had overlooked this claim, he could have asked the court to address the claim by

filing a postjudgment motion.

16 We observe that, to the extent that the petitioner believes that in the

present habeas action he presented credible evidence, including his own

testimony, that demonstrated that, apart from any conflict of interest on

Mandanici’s part, defective representation by Mandanici resulted in his guilty

plea, we observe that the court clearly indicated in its decision that it was

not persuaded by the petitioner’s evidence in this regard. In addressing the

issue of whether Mandanici had a colorable basis upon which to bring a

motion to withdraw the petitioner’s guilty plea, the court considered

whether, under Practice Book § 39-27 (4), the petitioner could have demonstrated that ‘‘[t]he plea resulted from the denial of effective assistance of

counsel . . . .’’ The court expressly found that the petitioner had not presented any ‘‘credible evidence’’ in the present proceeding that there was a

sound basis for Mandanici to bring a motion to withdraw the petitioner’s

guilty plea. This finding is significant in terms of the present claim because,

even if the claim at issue concerning Russell’s failure to present certain

testimony from the petitioner at the prior habeas trial had been properly

raised and considered by the trial court, the habeas court’s finding, after

hearing that testimony from the petitioner at the present trial, that his

plea was not the result of any deficiencies on Mandanici’s part necessarily

undermines the petitioner’s claim that he had been prejudiced by Russell’s

failure to present the petitioner’s testimony in this regard at the prior habeas

trial. Thus, even if the court should have addressed a claim of this nature,

we are convinced that its failure to do so was harmless in light of its

other findings.