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GANESH BHARRAT v. COMMISSIONER

OF CORRECTION

(AC 37261)

Alvord, Prescott and Bear, Js.

Argued March 1—officially released July 26, 2016

(Appeal from Superior Court, judicial district of

Tolland, Fuger, J.)

Douglas H. Butler, assigned counsel, for the appellant (petitioner).

Megan L. Wade, certified legal intern, with whom

were Harry Weller, senior assistant state’s attorney,

and, on the brief, Gail P. Hardy, state’s attorney, and

Angela R. Macchiarulo, senior assistant state’s attorney, for the appellee (respondent).
Opinion

PRESCOTT, J. The petitioner, Ganesh Bharrat,

appeals following the denial of his petition for certification to appeal from the judgment of the habeas court

denying his petition for a writ of habeas corpus. On

appeal, the petitioner claims that the habeas court

abused its discretion by denying his petition for certification to appeal and by rejecting his claims that his

trial counsel provided ineffective assistance of counsel.

Having thoroughly reviewed the record, we conclude

that the habeas court properly denied the petition for

certification to appeal, and, accordingly, we dismiss

the appeal.

The following facts, as set forth by this court in the

petitioner’s direct appeal or found by the habeas court,

and procedural history are relevant to this appeal. ‘‘[O]n

December 24, 2005, the [petitioner] met the victim, Jose

Morales, in a bar. After conversing with the victim,

the [petitioner] accompanied the victim to the victim’s

apartment in Hartford. Later that evening, after the victim had fallen asleep, the [petitioner] entered the victim’s bedroom and stabbed the victim numerous times

with a knife, thereby causing his death. The [petitioner]

left the victim’s apartment with the keys to the victim’s

automobile as well as the victim’s wallet and cellular

telephone. The [petitioner] drove away from the scene

in the victim’s automobile, later renting the automobile

to Henry Garcia. The [petitioner] used the victim’s cellular telephone and, later, stashed the victim’s wallet and

house keys in the apartment where he had been living

at the time of the crimes. Later, police discovered the

murder weapon and the bloodstained clothing worn by

the [petitioner] at the time of the murder, both of which

contained the victim’s genetic material, in the [petitioner’s] apartment. By means of statements that the [petitioner] made to the police, he fully implicated himself

in the victim’s murder. Referring to the victim’s death,

the [petitioner] stated to the police, ‘He got what he

deserved. I did what I had to do.’ ’’ State v. Bharrat,

129 Conn. App. 1, 3–4, 20 A.3d 9, cert. denied, 302 Conn.

905, 23 A.3d 1243 (2011).

Following a jury trial, the petitioner was found guilty

of murder in violation of General Statutes § 53a-54a,

felony murder in violation of General Statutes § 53a54c, burglary in the first degree in violation of General

Statutes § 53a-101 (a)(1), and larceny in the third degree

in violation of General Statutes § 53a-124 (a) (1). The

trial court merged the petitioner’s sentence for his felony murder conviction with his sentence for his murder

conviction, and sentenced the petitionerto a total effective term of fifty-five years imprisonment.

The petitioner appealed to this court from the judgment of conviction. He claimed on direct appeal ‘‘(1)

that the trial court improperly failed to deliver an
instruction on the defense of diminished capacity; (2)

that the court’s instruction concerning evidence of

intoxication, as it related to the crime of murder, was

deficient; (3) that the evidence was insufficient to prove

that he committed felony murder; and (4) that the court

improperly expanded the offense of felony murder.’’

Id., 3. This court affirmed the judgment of conviction.

In doing so, we specifically concluded, among other

things, that the trial court properly declined to instruct

the jury on the defense of diminished capacity because

the petitioner’s trial counsel failed to offer any evidence

from which the jury could infer that the petitioner was

incapable of forming the requisite intent to kill the victim on the ground of diminished capacity. Id., 12–16.

We also concluded that the petitioner waived his claim

that the court improperly expanded the offense of felony murder, because the petitioner’s trial counsel had

failed to take an exception to that portion of the jury

instruction. Id., 35.

Subsequently, on May 14, 2013, the petitioner filed an

amended petition for a writ of habeas corpus, alleging

ineffective assistance of trial counsel. The petitioner

alleged that the performance of his trial counsel,

Michael J. Isko,1 was deficient because he failed to

present expert psychiatric evidence at trial to establish

a diminished capacity defense, and because he failed

to object to the trial court’s jury instructions regarding

whether the burglary offense, which was the predicate

felony for the felony murder offense, could itself be

based on an intent to commit assault or an intent to

commit larceny. On June 9, 2014, the habeas court,

Fuger, J., held a trial in which it heard testimony from

Isko and Radhika Mehendru, a psychiatrist at the Institute of Living, who had evaluated the petitioner days

prior to the commission of the crimes.

After trial, the habeas court denied the petition for

a writ of habeas corpus. The court concluded that Isko’s

failure to offer expert testimony concerning the diminished capacity defense was not deficient performance

and did not prejudice the petitioner. The habeas court

further concluded that the petitioner had abandoned his

claim that Isko’s failure to object to the jury instructions

was ineffective assistance, and, even if this claim was

not abandoned, the petitioner had failed to establish

prejudice. The petitionerfiled a petition for certification

to appeal from the judgment of the habeas court, which

the habeas court denied. This appeal followed. Additional facts will be set forth as necessary.

As an initial matter, we set forth the applicable standard of review and principles of law. ‘‘In Simms v.

Warden, 229 Conn. 178, 187, 640 A.2d 601 (1994), [our

Supreme Court] concluded that . . . [General Statutes] § 52-470 (b) prevents a reviewing court from hearing the merits of a habeas appeal following the denial of

certification to appeal unless the petitioner establishes
that the denial of certification constituted an abuse of

discretion by the habeas court.In Simms v. Warden, 230

Conn. 608, 615–16, 646 A.2d 126 (1994), [our Supreme

Court] incorporated the factors adopted by the United

States Supreme Court in Lozada v. Deeds, 498 U.S. 430,

431–32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), as

the appropriate standard for determining whether the

habeas court abused its discretion in denying certification to appeal. This standard requires the petitioner to

demonstrate that the issues are debatable among jurists

of reason; that a court could resolve the issues [in a

different manner]; or that the questions are adequate

to deserve encouragement to proceed further. . . . A

petitioner who establishes an abuse of discretion

through one of the factors listed above must then demonstrate that the judgment of the habeas court should

be reversed on its merits. . . . In determining whether

the habeas court abused its discretion in denying the

petitioner’s request for certification, we necessarily

must consider the merits of the petitioner’s underlying

claims to determine whether the habeas court reasonably determined that the petitioner’s appeal was frivolous.’’ (Emphasis in original; internal quotation marks

omitted.) Taft v. Commissioner of Correction, 159

Conn. App. 537, 543–44, 124 A.3d 1, cert. denied, 320

Conn. 910, 128 A.3d 954 (2015).

‘‘To succeed on a claim of ineffective assistance of

counsel, a habeas petitioner must satisfy the twopronged test articulated in Strickland v. Washington,

466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984). Strickland requires that a petitioner satisfy both

a performance prong and a prejudice prong. To satisfy

the performance prong, a claimant must demonstrate

that counsel made errors so serious that counsel was

not functioning as the counsel guaranteed . . . by the

[s]ixth [a]mendment [to the United States constitution].

. . . To satisfy the prejudice prong, a claimant must

demonstrate that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of

the proceeding would have been different. . . . The

claim will succeed only if both prongs are satisfied.’’

(Citations omitted; internal quotation marks omitted.)

Small v. Commissioner of Correction, 286 Conn. 707,

712–13, 946 A.2d 1203, cert. denied sub nom. Small v.

Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336

(2008). ‘‘[A] court need not determine whether counsel’s

performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged

deficiencies.’’ Strickland v. Washington, supra, 697.

‘‘The habeas court is afforded broad discretion in

making its factual findings, and those findings will not

be disturbed unless they are clearly erroneous. . . .

[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. . . . The application of

the habeas court’s factual findings to the pertinent legal
standard, however, presents a mixed question of law

and fact, which is subject to plenary review.’’ (Citations

omitted; internal quotation marks omitted.) Gaines v.

Commissioner of Correction, 306 Conn. 664, 677, 51

A.3d 948 (2012).

I

The petitioner first claims that the habeas court

abused its discretion by denying his petition for certification to appeal because it is debatable amongst jurists

of reason that Isko’s failure to offer expert testimony

regarding a diminished capacity defense constituted

deficient performance. Specifically, the petitioner contends that had expert testimony been offered regarding

the mental disorder from which he allegedly suffered

at the time of the commission of the crimes, the trial

court would have instructed the jury on his diminished

capacity defense. The respondent, the Commissioner

of Correction, contends that the habeas court properly

concluded that Isko’s performance was not deficient

because his decision not to offer testimony from an

expert witness concerning a diminished capacity

defense was a reasonable, strategic decision. We agree

with the respondent.

The following additional facts and procedural history

are relevant to this claim. During the underlying criminal trial, Isko did not offer testimony from an expert

witness concerning the petitioner’s mental health at the

time of the commission of the crimes. Rather, Isko

attempted to establish through lay witnesses that the

petitioner had diminished capacity, and, thus, was incapable of forming the requisite intent to commit murder.

To effectuate this strategy, Isko cross-examined Sergeant Timothy Shaw of the Hartford Police Department,

who testified that the petitioner had claimed to suffer

from bipolar disorder. Specifically, the petitioner had

told Shaw that he heard voices and that drinking water

felt like he was drinking blood. Isko also offered the

testimony of Annette Deonarine, a woman with whom

the petitioner claimed to be in a romantic relationship.

Deonarine testified at trial that not only had she never

been in a romantic relationship with the petitioner, but

that he was obsessed with her and was delusional, as

evidenced by his belief that he was in a romantic relationship with her. After the petitioner rested his case,

Isko requested that the jury be instructed on diminished

capacity. The court declined to instruct the jury on

diminished capacity, concluding that there was no evidence to support such an instruction.

The habeas court determined that the petitioner had

alleged that Isko ‘‘was ineffective because he failed to

produce expert psychiatric evidence at trial to support

a jury instruction of diminished mental capacity in order

to support a jury instruction that his diminished mental

capacity precluded him from forming the requisite specific intent to commit [murder]. In support of this claim,
the petitioner presented [testimony from Mehendru and

Isko] . . . .

‘‘According to [Mehendru], she evaluated the petitioner on December 14 and 19, 2005, merely days prior

to the offense date of December 24, 2005. The petitioner,

at the time she evaluated him, suffered from substance

induced mood disorder and antisocial personality disorder. [Mehendru]testified that someone with these disorders nevertheless wilfully decides to break the law.

Although the petitioner reported hearing voices, he was

able to isolate his inner world from the real world.

Similarly, he reported hallucinatory images, but he had

no problems dealing with them. The petitioner did not

lose touch with reality even though he had a psychotic

symptom. The psychosis experienced by the petitioner

was not a primary feature or diagnosis. [Mehendru]

further noted that although the petitioner had difficulties with impulsivity, she found his impulse control to

be adequate. The petitioner had made a suicide attempt

before and had suicidal ideations; however, he never

mentioned homicidal ideations. [Mehendru] also noted

that there were many inconsistencies in what the petitioner self-reported and that she suspected that he was

malingering. On cross-examination, [Mehendru]

described the petitioner as manipulative and

demanding, and as someone who would push the limits

of what he could get away with. The petitioner,

according to [Mehendru], knew right from wrong and

chose to break the law.

‘‘The only other witness to present testimony about

asserting a diminished mental capacity defense was

[Isko]. According to [Isko], the defense team evaluated

whether a defense of mental disease or defect was a

viable defense. To that end, the defense team consulted

with an expert at Yale University, but that expert concluded that the petitioner’s psychosis was drug induced

and, therefore, not a viable basis for a defense of mental

disease or defect [pursuant to General Statutes § 53a13 (b)].2 Similarly, a personality disorder also would

not support such a defense. . . . Isko further testified

that the defense team, which had the petitioner’s

records from the Institute of Living, looked at whether

there was a diminished mental capacity to form intent.

The petitioner’s behavior was drug driven, and his use

of drugs precluded diminished mental capacity from

being a viable defense.’’ (Footnotes altered.)

On the basis of this testimony, the habeas court concluded that ‘‘the petitioner here has failed to present

any evidence that diminished mental capacity was a

viable and meritorious defense. Counsel investigated

and considered both mental disease and diminished

mental capacity defenses. These defenses, however,

were unsupported. The court concludes that the petitioner has failed to prove that trial counsel rendered

deficient performance. Additionally, none of the evi-
dence presented in the habeas proceeding in any way

undermines this court’s confidence in the outcome of

the jury trial, which is necessary to prove the Strickland

prejudice prong.’’

With this factual and procedural history in mind, we

turn to the legal principles that guide our analysis. ‘‘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

defendant must overcome the presumption that, under

the circumstances, the challenged action might be considered sound trial strategy.’’ (Citation omitted; internal

quotation marks omitted.) Veal v. Warden, 28 Conn.

App. 425, 434, 611 A.2d 911, cert. denied, 224 Conn. 902,

615 A.2d 1046 (1992). ‘‘[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.’’ (Internal quotation marks omitted.)

Michael T. v. Commissioner of Correction, 319 Conn.

623, 632–33, 126 A.3d 558 (2015).

In deciding whether defense counsel’s decision to

pursue a diminished capacity defense without expert

testimony was a reasonable strategic decision, the following legal principles are relevant. ‘‘To establish a

violation of § 53a-54a,3

the crime of murder, the state

must prove beyond a reasonable doubt that the defendant, with intent to cause the death of another person

. . . cause[d] the death of such person or of a third

person . . . . [T]he specific intent to kill is an essential

element of the crime of murder. To act intentionally,

the defendant must have had the conscious objective

to cause the death of the victim.’’ (Citation omitted;

footnote added; internal quotation marks omitted.)

State v. Aviles, 107 Conn. App. 209, 217, 944 A.2d 994,

cert. denied, 287 Conn. 922, 951 A.2d 570 (2008). ‘‘[T]he

inability to control one’s conduct within the requirements of the law that is not induced by voluntary intoxication is an affirmative defense [to murder pursuant to

§ 53a-13].’’ Copas v. Commissioner of Correction, 234

Conn. 139, 162, 662 A.2d 718 (1995).

‘‘If [a] defendant asserts a recognized legal defense

and the evidence indicates the availability of that

defense, such a charge is obligatory and the defendant

is entitled, as a matter of law, to a theory of defense

instruction. . . . The defendant’s right to such an

instruction is founded on the principles of due process.

. . . Before an instruction is warranted, however, [a]

defendant bears the initial burden of producing suffi-
cient evidence to inject [the defense] into the case. . . .

Conversely, the court has a duty not to submit to the

jury, in its charge, any issue upon which the evidence

would notreasonably support a finding.’’(Citation omitted; internal quotation marks omitted.) State v. Lynch,

287 Conn. 464, 470–71, 948 A.2d 1026 (2008). ‘‘To warrant consideration of diminished capacity . . . the

defendant must have presented evidence which might

have raised a reasonable doubt as to the existence of

the specified mental state.’’(Emphasis omitted; internal

quotation marks omitted.) State v. Pagano, 23 Conn.

App. 447, 450, 581 A.2d 1058, cert. denied, 217 Conn.

802, 583 A.2d 132 (1990).

In a related context, this court has previously considered whether it is deficient performance for trial counsel to not offer the testimony of an expert witness in

order to establish the defense of extreme emotional

disturbance. In Veal v. Warden, supra, 28 Conn. App.

434, the petitioner’s trial counsel failed to call an expert

witness at the underlying criminal trial. Id. At the habeas

trial in Veal, the petitioner’s trial counsel testified that

he had consulted two psychiatrists, who both found

that there was no clinical basis to support the defense

of extreme emotional disturbance. Id. On the basis of

this testimony, the habeas court held, and this court

agreed, that trial counsel’s decision did not constitute

deficient performance because it was a reasonable strategic decision that was made after thorough investigation. Id.

In the present case, Isko similarly thoroughly investigated a diminished capacity defense. He consulted with

an expert at Yale University, read the petitioner’s medical records from the Institute of Living, and spoke to

lay witnesses concerning the petitioner’s mental health.

After this thorough investigation, Isko made a strategic

decision not to call an expert witness at trial. The testimony of Mehendru establishes that this strategic decision was reasonable because, even if an expert had

testified, such testimony likely would have established

that the petitioner’s mental health issues were caused

by voluntary intoxication, and, thus, could not be a

basis for establishing diminished capacity. Additionally,

expert testimony, if offered, likely would have tended

to show that near the time of the commission of the

crime, the petitioner had adequate impulse control and

wilfully decided to break the law, and, thus, was capable

of forming the requisite intent to commit murder.

In sum, Isko conducted a thorough investigation into

the petitioner’s mental health and, on the basis of that

investigation, made the reasonable, strategic decision

not to call an expert witness at the underlying criminal

trial. Accordingly, the habeas court did not abuse its

discretion by denying the petition for certification to

appeal because it is not debatable amongst jurists of

reason whether it was deficient performance for Isko
to make the reasonable, strategic decision to not offer

expert testimony regarding diminished capacity.

II

The petitioner next claims that the habeas court

abused its discretion by denying his petition for certification to appeal because (1) he did not abandon his

claim that Isko provided ineffective assistance by failing

to object to the jury instruction on felony murder, and

(2) it is debatable amongst jurists of reason whether

he was prejudiced by Isko’s failure to object to the jury

instructions and the state’s closing argument regarding

the intent element of felony murder, and by his failure

to poll the jury regarding the intent element of felony

murder. Specifically, the petitioner contends that, on

the basis of a prior ruling at a probable cause hearing,

the jury should have been instructed that it could find

him guilty of felony murder only if it determined that

he had committed the murderin the course of a burglary

with the intent to commit larceny in the sixth degree,

and that it could not rely upon the alleged assault as a

predicate forthe felony murder charge. Thus, according

to the petitioner, Isko’s performance was deficient, and

he was prejudiced by Isko’s actions because, had the

court properly instructed the jury, the jury would have

acquitted him of the felony murder charge on the ground

that there was insufficient evidence to support a finding

that he had the intent to commit a larceny.

The respondent argues that the petitioner abandoned

this claim at the habeas trial because he offered no

evidence regarding this claim. Alternatively, the respondent contends that the petitioner failed to establish that

he was prejudiced by Isko’s failure to object to the jury

instruction and the state’s closing argument regarding

felony murder because it is unclear from the record

whether the jury found the petitioner guilty of felony

murder based upon a subordinate conclusion that he

had committed a burglary with the underlying intent to

commit an assault, or the underlying intent to commit

a larceny. Additionally, the respondent argues, in

response to the petitioner’s claim that he was prejudiced, that there was sufficient evidence for the jury

reasonably to find that the petitioner had the intent to

commit larceny in the sixth degree. Although we agree

with the petitioner that he did not abandon this claim,

we decline to review his argument that he was prejudiced by Isko’s actions because his argument on appeal

was not raised before the habeas court.4

The following additional facts, as found by the habeas

court, are relevant to this claim. ‘‘[T]he court, Sheldon,

J., held a probable cause hearing during which time

the state requested a finding of probable cause for the

crimes of murder and felony murder. At the conclusion

of the hearing, the prosecutor argued that there was

probable cause to find that the [petitioner] had killed

the victim in the course of or furtherance of committing
a burglary [in the first degree, and, thus, committed

felony murder].5 Concerning the burglary [in the first

degree],6

the prosecutor [alleged] that the [petitioner]

had remained unlawfully in the [victim’s] residence

while intending to commit an assault [in the third

degree]7

therein. The court expressed its belief that,

as a matter of law, it was improper for the burglary

underlying the felony murder count to be based upon

an intent to commit an assault. . . . Judge Sheldon

found probable cause with respect to felony murder

premised on a burglary by entering with the intent to

commit the crime of larceny [in the sixth degree],8 but

did not find probable cause as to felony murder premised on a burglary with the intent to commit an

assault. . . .

‘‘[T]he state charged the [petitioner] with having committed felony murder by causing the victim’s death in

the course of and in furtherance of the crime of burglary. Just priorto closing arguments, the court, Mullarkey, J., discussed the content of its charge. The court

referred to the fact that it had held charge conferences

with counsel that were not on the record. The court

referred to several topics that it had discussed with

counsel during those conferences, stating in relevant

part: I asked the state particularly . . . what crimes it

claimed were the underlying crimes of burglary, which

is an issue in both the burglary [in the first degree]

count and the felony murder count. . . . [The] state

indicated at that time that [it was] requesting larceny

[in the] sixth [degree] and assault [in the] third [degree]

as the specific crimes intended by the defendant for

[the] claim underlying the concept of burglary. Thereafter, the court noted that it had given counsel copies

of its jury charge, noting that it wanted counsel to have

as much time as necessary to review the charge thoroughly. . . . After referring to these various matters

discussed at the charge conference, the court asked,

[d]oes anybody have any . . . summation, disagreements, additions, subtractions from my summary of the

charge conference? At that time, [Isko] objected to the

court’s refusal to deliver an instruction regarding diminished capacity, but did not raise any other concerns or

objections to the matters specifically discussed by the

court, including the state’s requested instruction. After

a recess, the court asked counsel if they were ready to

proceed, and, following an affirmative reply by defense

counsel, it proceeded to closing arguments. . . .

‘‘[T]he prosecutor argued to the jury that, for purposes of the felony murder count, the [petitioner] could

be found to have committed burglary if he unlawfully

remained in the victim’s residence while intending to

assault the victim or intending to steal from the victim.

Although the state clearly referred to the mental state

for the crimes of assault in the third degree and larceny

in the sixth degree, the crimes referred to by the court

in discussing the content of its charging conferences,
the [petitioner] did not object to this argument at any

time.

‘‘Later, the court instructed the jury that, for purposes

of the felony murder count, the [petitioner] could be

found to have committed burglary if he unlawfully

remained in the victim’s residence intending to commit

either assault in the third degree or larceny in the sixth

degree. At no time did the [petitioner] object to the

court’s instruction.’’ (Citations omitted; footnotes

added; internal quotation marks omitted.)

On direct appeal of his conviction to this court, the

petitioner claimed that the trial court failed to instruct

the jury properly regarding the elements of felony murder, as limited by Judge Sheldon’s probable cause determination. State v. Bharrat, supra, 129 Conn. App. 29–32.

Specifically, he argued that because the court during

the probable cause hearing ruled that there was not

probable cause to charge the petitioner with felony

murder predicated on a burglary with an underlying

intent to commit an assault, the jury instructions on

felony murder should have directed the jury that it could

find the petitioner guilty only if it found that the state

proved beyond a reasonable doubt that the burglary

was committed with an underlying intent to commit a

larceny. Id., 32–34. Additionally, in support of his claim

that he was prejudiced by his counsel’s failure to object

to this instructional error, the petitioner claimed that

there was insufficient evidence to support a finding that

he had the requisite intent to commit larceny in the

sixth degree. Id., 27.

As to the claim regarding the jury instruction, we

held on direct appeal that such a claim was waived

because the petitioner did not take exception to the

jury instruction concerning the intent element of felony

murder. Id., 35. As to the sufficiency of the evidence

claim, on direct appeal we did not reach the merits

of the claim, but rather held that even if there was

insufficient evidence to find that the petitioner had the

requisite intent to commit larceny in the sixth degree

as the predicate intent to burglary in the first degree,

there was an alternative ground—intent to commit

assault in the third degree—upon which the jury could

have found that the petitioner committed burglary in

the first degree as a predicate for felony murder. Id., 28.

Subsequently, in his amended petition for a writ of

habeas corpus and his pretrial memorandum of law,

the petitioner ‘‘allege[d] that counsel was deficient for

failing to object at the charge conference to the proposed felony murder instructions, as well as failing to

object to the state’s closing arguments. The petitioner

also allege[d] that counsel was deficient for failing to

ask the court to inquire of the jury as to whether [it]

found the predicate burglary to be based on the intent

to commit an assault, or whetherthe burglary was based

on the intent to commit a larceny. If the jury found it
to be based on an assault, counsel would further be

deficient for failing to move for a directed verdict of

not guilty on the charge of felony murder, since there

was no probable cause to charge the petitioner with

felony murder based on a predicate crime of burglary

with the intent to commit an assault in the burgled

premises.’’(Internal quotation marks omitted.) The petitioner did not argue to the habeas court that if the jury

had found him guilty of felony murder on the basis of

a predicate crime of burglary with an intent to commit

a larceny, there was insufficient evidence to support

such a finding of intent.

At the habeas trial, Isko testified that he did not object

to the jury instruction on felony murder. Isko stated

that he believed, but could not recall, that the petitioner

was convicted of felony murder predicated on a burglary predicated on an intent to commit a larceny.

Because of this belief, Isko did not request that the

court poll the jury.

After Isko’s testimony, the petitioner rested, and the

respondent offered no additional witnesses. In closing

argument, the petitioner rested on his pretrial brief.

The respondent argued in regard to this claim that the

petitioner was not prejudiced by Isko’s failure to object

to the jury charge and the state’s closing argument

concerning felony murder because ‘‘it’s . . . obvious

that according to [Isko] and . . . the transcript, that

the felony murder was based on the items taken from

the home after the murder [i.e., intent to commit a

larceny].’’

In its memorandum of decision, the habeas court

deemed this claim abandoned: ‘‘At the habeas trial, the

petitioner did not present any evidence in support of

these allegations. [Although Isko testified that he did

not object to the jury instruction on this issue, Isko was

never questioned regarding his reason for not objecting,

and, thus, no evidence was offered from which the

court could infer whether Isko’s failure to object was

a reasonable, strategic decision.] The court, therefore,

deems them to have been abandoned. . . . However,

even [if] this court were to not consider these claims

to have been abandoned and that trial counsel were

presumed to have rendered deficient performance as

alleged, the petitioner’s claims would fail on the prejudice prong.

‘‘Judge Sheldon found probable cause [to believe]

that the petitioner committed murder on the theory

of felony murder, in that he committed a burglary by

entering with the intent to commit a crime of larceny

by theft of items [i.e., the keys to the victim’s car and

the car itself] belonging to [the victim]. . . . The jury

was informed of the charges at the onset of trial. The

third count charged the petitioner with burglary in the

first degree for [being] armed with a dangerous instrument, to wit, a knife, remained unlawfully in [the vic-
tim’s] building with the intentto commit a crime therein.

. . . The fourth count charged the petitioner with larceny in the third degree for having the intent to deprive

[the victim] of property, a 1993 Mitsubishi automobile

. . . [and] wrongfully [taking and obtaining] said automobile from its owner and such . . . vehicle’s value

was less than $5000. . . .

‘‘The jury convicted the petitioner on all four counts

as charged: murder, felony murder, burglary in the first

degree, and larceny in the third degree. Thus, the jury

intrinsically and necessarily found the petitioner guilty

of the underlying crimes for the felony murder charge

for which Judge Sheldon found probable cause, i.e.,

felony murder premised on a burglary and the intent

to commit a larceny.

‘‘Based upon the foregoing, [the habeas court concluded] that the petitioner has failed to show how he

was prejudiced by counsel’s failure to seasonably object

to the felony murder instructions and to the state’s

closing arguments, as well as for failing to ask the court

to inquire of the jury as to whether [it] found the predicate burglary to be based on the intent to commit an

assault, or whetherthe burglary was based on the intent

to commit a larceny.’’ (Citations omitted; emphasis

omitted; internal quotation marks omitted.)

A

We first address whether the petitioner abandoned

this claim at the habeas trial. Our standard of review

of a habeas court’s finding that a claim has been abandoned is plenary. Solek v. Commissioner of Correction,

107 Conn. App. 473, 479, 946 A.2d 239, cert. denied, 289

Conn. 902, 957 A.2d 873 (2008). There is a distinction

between abandoning a claim and failing on the merits

of a claim. A claim may be deemed abandoned in cases

in which a claim is not addressed during trial. See

Crocker v. Commissioner of Correction, 126 Conn. App.

110, 132, 10 A.3d 1079 (upholding habeas court’s conclusion that ‘‘petitioner had abandoned [a] claim because

[1] it was not addressed in his posttrial brief and [2]

he failed to adduce evidence in support of the claim

during the habeas trial’’), cert. denied, 300 Conn. 919,

14 A.3d 333 (2011); Wooten v. Commissioner of Correction, 104 Conn. App. 793, 801, 936 A.2d 263 (2007)(claim

deemed ‘‘abandoned because the petitioner failed to

present any evidence in support of his position’’), cert.

denied, 289 Conn. 911, 957 A.2d 868 (2008). If evidence

and argument have been offered concerning a claim,

however, but the evidence is not sufficient to establish

an element of the claim, the claim fails on the merits.

See Davey B. v. Commissioner of Correction, 114 Conn.

App. 871, 876, 971 A.2d 735 (2009) (to succeed on merits

of ineffective assistance of counsel claim pursuant to

Strickland, petitioner must establish that counsel’s

actions did not constitute sound trial strategy).
Whether the petitioner abandoned this claim by failing to present it to the habeas court is a close question.

With respect to Isko’s failure to object to the jury

instruction on felony murder, the petitioner argued both

deficient performance and prejudice in his petition for

a writ of habeas corpus and in his pretrial memorandum

of law, which he relied on in lieu of making a closing

argument. Additionally, the petitioner questioned Isko

regarding whether he objected to the jury instruction

on felony murder, and why he did not seek to poll the

jury. The petitioner, however, did not question Isko as

to why he did not object to the jury instruction on

felony murder. For the purposes of this appeal, we

assume that the petitioner did not abandon this claim,

without deciding whether, as the habeas court concluded, a party abandons a claim of ineffective assistance of counsel in a case if trial counsel is not

questioned at the habeas trial concerning the reasons

behind his or her strategic decisions. Rather than treating this claim as abandoned, we conclude that it is

appropriate to address it because the habeas court

reached the merits of the claim, and both parties fully

have briefed it on appeal. Accordingly, there is no prejudice or surprise to either the habeas court or the parties

by this court in addressing the merits of the claim.

B

Next, we turn to the habeas court’s alternative ground

for concluding that the petitioner had not established

ineffective assistance of counsel concerning Isko’s failure to object to the jury instruction on felony murder.

The habeas court found, in the alternative, that the

petitioner failed to establish that he was prejudiced by

Isko’s failure (1) to object to the jury instruction and

the state’s closing argument regarding felony murder

predicated on an intent to commit an assault, or (2) to

request that the jury be polled. According to the habeas

court, the petitioner was not prejudiced by Isko’s

actions because it concluded that there was sufficient

evidence to support the petitioner’s felony murder conviction because he had committed a burglary with the

underlying intent to commit a larceny. On appeal, the

petitioner argues that the habeas court abused its discretion by denying his petition for certification to appeal

because it is debatable amongst jurists of reason that

he was prejudiced by Isko’s actions. Specifically, he

contends that he was prejudiced because if the jury

had been instructed that the felony murder charge could

be predicated only upon the intent to commit larceny,

it would have acquitted him of the felony murder

charge. He would have been acquitted of this charge,

according to the petitioner, because there was insufficient evidence to establish that he had the intent to

commit a larceny at the time he stabbed the victim.

The petitioner, however, argued in the habeas court

only that if the jury had found him guilty of felony
murder on the ground that he killed the victim in the

course of committing a burglary with the intent to commit an assault, he was entitled to an acquittal of the

charge of felony murder. Because the argument that

the petitioner asserts on appeal was never made to

the habeas court, it is unpreserved, and we decline to

review it.

‘‘Our law is well settled that a party may not try its

case on one theory and appeal on another.’’ (Internal

quotation marks omitted.) Janusauskas v. Fichman,

264 Conn. 796, 807, 826 A.2d 1066 (2003); Rodriguez v.

State, 155 Conn. App. 462, 471 n.10, 110 A.3d 467, cert.

granted on other grounds, 316 Conn. 916, 113 A.3d 71

(2015). Arguments asserted in support of a claim for

the first time on appeal are not preserved. See State v.

Jeffreys, 78 Conn. App. 659, 666–67, 828 A.2d 659 (if

argument in support of claim is different on appeal,

argument is not preserved and only reviewable if argument meets requirements of State v. Golding, 213 Conn.

233, 567 A.2d 823 [1989]), cert. denied, 266 Conn. 913,

866 A.2d 465 (2003), overruled in part on other grounds

by State v. Polanco, 308 Conn. 242, 248, 253, 61 A.3d

1084 (2013). Our Supreme Court has stated that ‘‘shift[s]

in arguments [on appeal are] troubling because, as [the

court] previously ha[s] noted, to review . . . claim[s]

. . . articulated for the first time on appeal and not

[raised] before the trial court, would [be nothing more

than] a trial by ambuscade of the trial judge.’’ (Internal

quotation marks omitted.) Neuhaus v. DeCholnoky, 280

Conn. 190, 216 n.18, 905 A.2d 1135 (2006).

At the habeas trial, the petitioner never made an

insufficiency of the evidence argument in regard to the

jury’s finding that he had the requisite intent to commit

a larceny as the predicate intent to burglary and felony

murder. The petitioner made no argument regarding

whether he would be entitled to an acquittal on the

charge of felony murder if the jury had found him guilty

of felony murder on the ground that he killed the victim

in the course of committing a burglary with the underlying intent to commit a larceny.

Because the petitioner did not make this argument

to the habeas court, the habeas court made no determination as to whether there was sufficient evidence to

support a finding that he killed the victim in the course

of committing a burglary with the intent to commit a

larceny. The habeas court never was placed on notice

that a sufficiency of the evidence argument existed.

Accordingly, because this argument was never raised

in the habeas court, we conclude that it is unpreserved

and decline to review it.9

The appeal is dismissed.

In this opinion the other judges concurred.

1 The habeas court noted that ‘‘the amended petition [for a writ of habeas

corpus] allege[d] ineffective assistance only by . . . Isko, but the petitioner

was also represented by Attorney Bruce Lorenzen. While . . . Isko may
have been lead counsel . . . Lorenzen nevertheless was cocounsel and conducted cross-examination of some witnesses. Because no allegations are

directed at Lorenzen, who did not testify at the habeas trial, the court limits

its discussion of any purported deficiencies to . . . Isko. Nevertheless,

because the petitioner’s legal claim is ineffective assistance by trial counsel,

the court explicitly finds that the petitioner has waived any claims against

. . . Lorenzen by not raising them in the present matter.’’ The petitioner

does not challenge this aspect of the habeas court’s decision.

2 General Statutes § 53a-13 provides in relevant part: ‘‘(a) In any prosecution for an offense, it shall be an affirmative defense that the defendant, at

the time he committed the proscribed act or acts, lacked substantial capacity,

as a result of mental disease or defect, either to appreciate the wrongfulness

of his conduct or to control his conduct within the requirements of the law.

‘‘(b) It shall not be a defense under this section if such mental disease

or defect was proximately caused by the voluntary ingestion, inhalation or

injection of intoxicating liquor or any drug or substance, or any combination

thereof, unless such drug was prescribed for the defendant by a prescribing

practitioner, as defined in subdivision (22) of section 20-571, and was used

in accordance with the directions of such prescription. . . .’’

3 General Statutes § 53a-54a provides in relevant part: ‘‘(a) A person is

guilty of murder when, with intent to cause the death of another person,

he causes the death of such person or of a third person . . . .’’

4 Prior to oral argument before this court, we requested the parties to be

prepared to address the issue of mootness regarding this claim. Specifically,

we inquired as to whether the petitioner’s attack on his conviction of felony

murder would be moot if he is unsuccessful in this appeal in obtaining relief

regarding his conviction of murder because, even if he is successful in his

attack on his conviction of felony murder, he still would be obligated to

serve a fifty-five year sentence on the basis of his murder conviction alone.

We conclude that this claim is not moot.

A claim is moot if there is no practical relief that this court can afford

the complainant. State v. Preston, 286 Conn. 367, 374, 944 A.2d 276 (2008).

A claim is not moot if this court can afford practical relief from the collateral

consequences of a conviction. Barlow v. Lopes, 201 Conn. 103, 112–13, 513

A.2d 132 (1986) (‘‘[t]he collateral consequences of a conviction are legion:

subsequent convictions might, as a result, carry heavier penalties and a wide

range of civil rights might be affected’’).

In deciding whetherthis claim is moot, we first mustreview the distinction

between merged convictions and vacated convictions. Subsequent to the

petitioner’s sentencing in the underlying criminal trial, our Supreme Court

held that ‘‘when a defendant has been convicted of greater and lesser

included offenses, the trial court must vacate the conviction for the lesser

offense rather than merging the convictions . . . .’’ State v. Polanco, 308

Conn. 242, 245, 61 A.3d 1084 (2013). Prior to Polanco, our Supreme Court

had adopted the merger of convictions approach, in which the sentences for

the greater and lesser included offenses were merged but both convictions

remained on a defendant’s criminal record. Id., 252. In Polanco, our Supreme

Court held that the lesser included offense should be vacated, not merged,

and, thus, the lesser included offense would not remain on a defendant’s

criminal record. Id. Accordingly, if the petitioner had been sentenced after

our Supreme Court’s decision in Polanco, his felony murder conviction

would have been vacated, not merged.

Here, the petitioner’s sentences for his murder and felony murder convictions were merged. Thus, the petitioner’s criminal record reflects both convictions, and there is practical relief that this court can afford the petitioner

should he prevail on his second claim—namely, he would be entitled to

have the felony murder conviction expunged from his criminal record.

Accordingly, this claim is not moot. See State v. Carter, 320 Conn. 564, 565

n.2, 132 A.3d 729 (2016) (‘‘the defendant’s appeal of the lesser sentence is

not rendered moot simply because we cannot afford him relief in terms of

the length of his sentence’’).

5 General Statutes (Supp. 2016) § 53a-54c defines felony murderin relevant

part: ‘‘A person is guilty of [felony] murder when, acting either alone or

with one or more persons, such person commits . . . burglary . . . and,

in the course of and in furtherance of such crime . . . such person . . .

causes the death of a person other than one of the participants . . . .’’

We note that § 53a-54c was amended in 2015; see Public Acts 2015, No.

15-211, § 3; however, the amendment is not relevant to this appeal. For

convenience, we refer herein to the revision codified in the 2016 supplement

to the General Statutes.

6 General Statutes § 53a-101 (a) defines burglary in the first degree in
relevant part: ‘‘[A] person is guilty of burglary in the first degree when (1)

such person enters or remains unlawfully in a building with intent to commit

a crime therein and is armed with . . . a . . . dangerous instrument

. . . .’’

7 General Statutes § 53a-61 defines assault in the third degree in relevant

part: ‘‘(a) A person is guilty of assault in the third degree when: (1) With

intent to cause physical injury to another person, he causes such injury to

such person or to a third person; or (2) he recklessly causes serious physical

injury to another person; or (3) with criminal negligence, he causes physical

injury to another person by means of a deadly weapon, a dangerous instrument or an electronic defense weapon. . . .’’

8 General Statutes § 53a-125b (a) defines larceny in the sixth degree: ‘‘A

person is guilty of larceny in the sixth degree when he commits larceny as

defined in section 53a-119 and the value of the property or service is five

hundred dollars or less.’’

General Statutes § 53a-119 provides in relevant part: ‘‘A person commits

larceny when, with intent to deprive another of property or to appropriate

the same to himself or a third person, he wrongfully takes, obtains or

withholds such property from an owner. . . .’’

9 The petitioner does notrequest that we review this unpreserved argument

pursuant to State v. Golding, supra, 213 Conn. 239–40, as modified by In

re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015). Even if he did,

however, this argument is not reviewable pursuant to Golding. See Moye

v. Commissioner of Correction, 316 Conn. 779, 787, 114 A.3d 925 (2015)

(Golding review is not available for unpreserved ineffective assistance of

counsel claims and is only available in habeas appeal if ‘‘[a] petitioner

challenges the actions of the habeas court itself’’ [internal quotation marks

omitted]). Accordingly, we decline to review it.