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*********************************************** 
MARVIN SALMON v. COMMISSIONER

OF CORRECTION

(AC 39095)

DiPentima, C. J., and Prescott and Mihalakos, Js.

Syllabus

The petitioner, who had been convicted of the crime of murder in connection

with the shooting death of the victim, sought a writ of habeas corpus,

claiming that his pretrial counsel, C, had provided ineffective assistance

by failing to advise him during pretrial plea negotiations of the existence

of H, a second eyewitness to the murder, and that he was prejudiced

by counsel’s deficient performance. After the murder, H and another

eyewitness, O, provided statements to the police and identified the

petitioner in a photographic array as the individual who had shot the

victim. A probable cause hearing was held at which the state presented

testimony from a number of witnesses, including O, but H did not testify,

and the state did not elicit any testimony regarding him, nor was he

mentioned by any of the testifying witnesses. C also did not mention H

in a letter that he wrote to the petitioner summarizing the events of the

hearing. Thereafter, the petitioner was extended two plea offers during

a pretrial conference. C wrote the petitioner a letter in which he summarized the offers and stated that O was the only eyewitness available to

the state and that there were serious questions as to his reliability and

credibility. The petitioner subsequently rejected the plea offers and,

following a jury trial during which he was represented by C’s law partner,

N, the petitioner was convicted of murder. At his habeas trial, the

petitioner testified that C never advised him of the existence of H during

pretrial plea negotiations. The habeas court rendered judgment denying

the habeas petition and, thereafter, denied the petition for certification

to appeal, and the petitioner appealed to this court. Held:

1. The habeas court abused its discretion in denying the petition for certification to appeal; the resolution of the petitioner’s underlying claim involved

issues that were debatable among jurists of reason and could have been

resolved by a court in a different manner, as the habeas court made a

clearly erroneous factual finding relating to the issue of whether C had

rendered deficient performance by failing to advise the petitioner of H’s

existence during pretrial plea negotiations.

2. The habeas court improperly concluded that the petitioner failed to establish that C had provided ineffective assistance of counsel: that court’s

factual finding that C must have informed the petitioner of H’s existence

during plea negotiations was clearly erroneous, as there was no evidence

in the record to support that finding and, despite the language of C’s

second letter to the petitioner, the habeas court relied on speculative

testimony of N and the prosecutor, who were not involved in the case

during pretrial plea negotiations and testified at the habeas trial only

as to their respective general practices; moreover, because it was unclear

whether, in the absence of the habeas court’s erroneous factual finding,

it would have credited the petitioner’s testimony that C never told him

about H, and because questions of credibility are for the fact finder to

decide, the case had to be remanded for a new trial on that issue.

3. The petitioner’s claim that he was prejudiced by C’s allegedly deficient

performance during plea negotiations was not reviewable; the habeas

court, which found that the petitioner had failed to show deficient

performance by C, did not address prejudice or make any factual findings

as to whether the petitioner had demonstrated a reasonable probability

that he would have accepted one of the plea offers had C afforded him

effective assistance of counsel, and because the question of prejudice

presents a mixed question of fact and law, this court was unable to

determine whether the petitioner was prejudiced by C’s alleged deficient

performance without the habeas court’s complete factual findings concerning prejudice.

Argued September 7—officially released December 19, 2017

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, Fuger, J.; judgment

denying the petition; thereafter, the court denied the

petition for certification to appeal, and the petitioner

appealed to this court. Reversed; new trial.

Naomi T. Fetterman, for the appellant (petitioner).

Lisa A. Riggione, senior assistant state’s attorney,

with whom, on the brief, were Gail P. Hardy, state’s

attorney, and Angela R. Macchiarulo, senior assistant

state’s attorney, for the appellee (respondent).
Opinion

MIHALAKOS, J. The petitioner, Marvin Salmon,

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

denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas

court (1) abused its discretion in denying his petition

for certification to appeal and (2) improperly concluded

that he failed to establish the ineffectiveness of his

pretrial counsel. For the reasons set forth herein, we

agree with the petitioner, and conclude that the habeas

court abused its discretion in denying the petition for

certification to appeal. We further conclude that the

habeas court made a clearly erroneous factual finding

that underlies its determination that pretrial counsel

did not render deficient performance. We also determine that the habeas court did not make a determination regarding whether any assumed deficient

performance prejudiced the petitioner. Accordingly, we

reverse the judgment of the habeas court and remand

the case for a new trial.

The record discloses the following facts and procedural history. Our prior decision on the petitioner’s

direct appeal in State v. Salmon, 66 Conn. App. 131,

133–34, 783 A.2d 1193 (2001), cert. denied, 259 Conn.

908, 789 A.2d 997 (2002), set forth the following facts:

‘‘During the afternoon of October 22, 1994, the victim,

Claven Hunt, stood at the end of the driveway at 90

Irving Street [in Hartford] talking to another resident

of the building. A red Subaru drove up to the victim,

and a black man with his hair in dreadlocks exited from

the vehicle. The man fired a .38 caliber handgun at the

victim. The victim then ran and his assailant pursued

him. The assailant fired several more bullets; two bullets

hit the victim in the back and three bullets hit a drain

spout and the doors to a garage. Soon thereafter, the

police found the unconscious victim, who was later

pronounced dead at Saint Francis Hospital and Medical

Center in Hartford.

‘‘The red Subaru left the area of the shooting, and an

off-duty Hartford police officer, Matt Rivera, noticed it

moving quickly through traffic on Blue Hills Avenue.

Rivera heard a dispatch that a vehicle matching the

description of the red Subaru had been involved in a

shooting. Although Rivera did not pursue the vehicle

because he was off duty and driving his own car, he

informed the dispatcher that while he was driving on

Blue Hills Avenue he had noticed a vehicle matching

the description of the red Subaru. In addition, Rivera

provided the license plate number of the vehicle. The

police determined that the vehicle belonged to the [petitioner’s] mother and found it parked at the [petitioner’s]

mother’s address.

‘‘The Hartford police picked up the vehicle and
brought it to the evidence garage. The police dusted

the car for latent fingerprints and found a fingerprint

that matched that of the [petitioner]. In addition, the

police determined that there were traces of gunshot

residue from a .38 caliber bullet in the car.

‘‘Subsequently, Detective Keith Knight handled the

investigation of the shooting. During the course of the

investigation, the [victim’s] family provided Knight with

two witnesses to interview, Theodore Owens and

Duane Holmes. On the basis of [a photographic identification made by Owens on May 2, 1996], Knight was

able to obtain an arrest warrant for the [petitioner].’’

During a pretrial conference on November 20, 1998,

the petitioner was extended two plea offers. On December 11, 1998, the petitioner formally rejected both plea

offers. In February, 2000, following a jury trial, the petitioner was convicted of murder in violation of General

Statutes § 53a-54a (a), as enhanced pursuant to General

Statutes § 53-202k for using a firearm. Thereafter, the

court sentenced the petitioner to a total effective term

of forty-five years of incarceration. This court affirmed

the petitioner’s conviction on direct appeal. See id., 131.

Thirteen years later, on July 17, 2013, the self-represented petitioner filed a petition for writ of habeas

corpus. On November 2, 2015, the petitioner, represented by appointed counsel, filed the amended petition

operative in this appeal. In the sole count of the

amended petition, the petitioner alleged that his constitutional right to the effective assistance of counsel was

violated because his pretrial counsel, Attorney Donald

Cardwell, failed to inform him of Holmes, the second

eyewitness, during plea negotiations.1 Specifically, the

petitioner alleged that Attorney Donald Cardwell’s performance was deficient, in that he: ‘‘[1] failed to meaningfully explain a plea offer to the petitioner; [2] failed

and neglected to properly and adequately advise the

petitioner of the desirability of a plea offer; [3] failed

to adequately inform and advise the petitioner with

regards to the relative strength of the state’s case and

the possibility of success at trial; and [4] affirmatively

misadvised the petitioner regarding the desirability of

proceeding to trial.’’ The petitioner further claimed that

‘‘but for [his] counsel’s deficient performance, the result

of [his] criminal proceedings would have been different

and more favorable to [him].’’

The habeas trial was held on March 3, 2016. Following

the trial, the habeas court, Fuger, J., denied the habeas

petition in an oral decision in which it concluded that

the petitioner failed to establish that Attorney Donald

Cardwell had provided ineffective assistance of counsel.2 Thereafter, the petitioner, pursuant to General Statutes § 52-470, petitioned the habeas court for

certification to appeal the following issue: ‘‘Whether

the petitioner’s constitutional right to the effective

assistance of counsel was violated.’’ The habeas court
denied the petition for certification to appeal, and this

appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The petitioner claims that the habeas court abused

its discretion in denying his petition for certification to

appeal from the denial of his amended petition for a writ

of habeas corpus with respect to his claim of ineffective

assistance of counsel. We agree with the petitioner.

‘‘Faced with a habeas court’s denial of a petition for

certification to appeal, a petitioner can obtain appellate

review of the dismissal of his petition for habeas corpus

only by satisfying the two-pronged test enunciated by

our Supreme Court in Simms v. Warden, 229 Conn.

178, 640 A.2d 601 (1994), and adopted in Simms v.

Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First,

[the petitioner] must demonstrate that the denial of

his petition for certification constituted an abuse of

discretion. . . . Second, if the petitioner can show an

abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the

merits. . . . To prove that the denial of his petition for

certification to appeal constituted an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] 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. . . .

‘‘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. In other words, we review

the petitioner’s substantive claims for the purpose of

ascertaining whether those claims satisfy one or more

of the three criteria . . . adopted by [our Supreme

Court] for determining the propriety of the habeas

court’s denial of the petition for certification.’’ (Citations omitted; internal quotation marks omitted.) Sanders v. Commissioner of Correction, 169 Conn. App. 813,

821–22, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904,

156 A.3d 536 (2017).

As discussed subsequently in part II A of this opinion,

we conclude that the habeas court made a clearly erroneous factual finding relating to the issue of whether

Attorney Donald Cardwell rendered deficient performance by failing to advise the petitioner of Holmes’

existence during pretrial plea negotiations. Because the

resolution of the petitioner’s underlying claim involves

issues that are debatable among jurists of reason and

could have been resolved by a court in a different manner, we conclude that the habeas court abused its dis-
cretion in denying his petition for certification to appeal

from the denial of his amended petition for a writ of

habeas corpus.

II

We now turn to the petitioner’s substantive claim

that the habeas court improperly concluded that he had

failed to establish the ineffectiveness of his pretrial

counsel. Specifically, he argues that (1) Attorney Donald Cardwell rendered deficient performance in that

he failed to advise the petitioner of Holmes’ existence

during pretrial plea negotiations, and (2) he was prejudiced by Cardwell’s deficient performance.

As a preliminary matter, we set forth our standard

of review and the legal principles governing ineffective

assistance of counsel claims. ‘‘[I]t is well established

that [a] criminal defendant is constitutionally entitled

to adequate and effective assistance of counsel at all

critical stages of criminal proceedings. Strickland v.

Washington, [466 U.S. 668, 686, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984)]. This right arises under the sixth and

fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution.’’ (Internal quotation marks omitted.) Thomas v.

Commissioner of Correction, 141 Conn. App. 465, 471,

62 A.3d 534, cert. denied, 308 Conn. 939, 66 A.3d 881

(2013). ‘‘The United States Supreme Court, long before

its recent decisions in Missouri v. Frye, 566 U.S. 134,

132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012), and Lafler v.

Cooper, 566 U.S. 156, 132 S. Ct. 1376, 182 L. Ed. 2d 398

(2012), recognized that the two part test articulated in

Strickland . . . applies to ineffective assistance of

counsel claims arising out of the plea negotiation stage.

Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct. 366, 88 L.

Ed. 2d 203 (1985) . . . .’’ (Citation omitted; internal

quotation marks omitted.) Barlow v. Commissioner of

Correction, 150 Conn. App. 781, 792, 93 A.3d 165 (2014);

see also Duncan v. Commissioner of Correction, 171

Conn. App. 635, 647, 157 A.3d 1169 (‘‘[i]t is well established that the failure to adequately advise a client

regarding a plea offer from the state can form the basis

for a sixth amendment claim of ineffective assistance

of counsel’’), cert. denied, 325 Conn. 923, 159 A.3d

1172 (2017).

‘‘The habeas court is afforded broad discretion in

making its factual findings, and those findings will not

be disturbed unless they are clearly erroneous. . . .

Historical facts constitute a recital of external events

and the credibility of their narrators. . . . Accordingly,

the habeas judge, as the trier of facts, is the sole arbiter

of the credibility of witnesses and the weight to be

given to their testimony. . . . The application of 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. . . .
‘‘As enunciated in Strickland v. Washington, supra,

466 U.S. 687, this court has stated: It is axiomatic that

the right to counsel is the right to the effective assistance of counsel. . . . A claim of ineffective assistance

of counsel consists of two components: a performance

prong and a prejudice prong. To satisfy the performance

prong . . . the petitioner must demonstrate that his

attorney’s representation was not reasonably competent or within the range of competence displayed by

lawyers with ordinary training and skill in the criminal

law. . . . To satisfy the prejudice prong, [the petitioner] 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 [petitioner’s] claim will succeed only if both

prongs are satisfied.’’ (Internal quotation marks omitted.) Thomas v. Commissioner of Correction, supra,

141 Conn. App. 470–71. The court, however, ‘‘can find

against a petitioner . . . on either the performance

prong or the prejudice prong, whichever is easier.’’

Id., 471.

A

The petitioner first claims that the habeas court

improperly concluded that Attorney Donald Cardwell’s

performance was not deficient. Specifically, he argues

that the ‘‘record is bereft of support for [the court’s]

finding’’ that Attorney Donald Cardwell informed him

of Holmes’ existence during pretrial plea negotiations.

We agree that the court’s factual finding was clearly

erroneous.

The following additional facts are relevant to our

analysis of this claim. On May 2, 1996, Owens gave a

statement and identified the petitioner in a photographic array. On the basis of Owens’ identification,

Detective Knight obtained an arrest warrant for the

petitioner on May 28, 1996. On June 11, 1996, Holmes

gave a statement and identified the petitioner in a photographic array. A probable cause hearing was conducted

on April 22, 1998. At the hearing, the prosecution presented testimony from Detective Knight, Officers Clayton Winslow and Tracey Carter, Owens, Delray Coomes

and Gary Rakestrau.3 Holmes did not testify at the probable cause hearing, the state did not elicit any testimony

regarding him, and he was never mentioned by any of

the testifying witnesses. On April 24, 1998, Attorney

Donald Cardwell wrote a letter to the petitioner, summarizing the events of the probable cause hearing: ‘‘I

am providing you with copies of all the reports and

statements given to me by the assistant state’s attorney

on the morning of the [probable cause] hearing and ask

that you review all of these documents carefully as we

will have to go over them together when we next meet.’’

During a pretrial conference on November 20, 1998,

the petitioner was extended two plea offers. The court,
Clifford J., offered the petitioner twenty-five years for

a guilty plea to murder. Alternatively, Assistant State’s

Attorney Rosita Creamer offered the petitioner thirty

years for a guilty plea to manslaughter in the first degree

with a firearm. On November 22, 1998, Attorney Donald

Cardwell wrote a letter to the petitioner summarizing

the events of the pretrial conference: ‘‘I gave our view

of the evidence and submitted copies of the photographs of the scene which support our contention that

no one could get a clear view of the individual’s face

from the gas station where [Owens] testified he was

standing at the time of this incident. This is important

to the defense as there is only one eyewitness available

to the state and there are serious questions as to his

reliability and credibility.

‘‘The state on the other hand has tied in your mother’s

vehicle and, in addition, has evidence of your thumb

print being found in the car as well as gun powder

residue. While this does not place you in the automobile

at the time of the shooting it allows the state to argue

that since you were in the automobile at some time and

since gun powder residue was found in the automobile,

the witness who identifies you can be believed. This

becomes the critical question for the jury.

‘‘Judge Clifford, who is the presiding Judge, agreed

with me that the case is defensible. At the same time,

we all know from experience that a jury is absolutely

unpredictable so that every trial involves a certain

amount of risk.

‘‘If the state stays with the charge of murder Judge

Clifford will give you the absolute bottom of the range

which is 25 years. You should keep in mind that a

conviction would most likely result in a sentence of

around 50 years so that the offer is approximately [one

half] of your exposure. In response to my question as

to whether the state would change the charge from

murder to manslaughter, the prosecutor said she would

do so but that she would then add a charge of possession

of a weapon and want 25 years on the manslaughter

charge and 5 years on the weapon for a total effective

sentence of 30 years. I see absolutely no gain to you

from this change in charge as you would most likely

do 85 [percent] of your time under either charge and

85 [percent] of 25 years is obviously preferable to 85

[percent] of 30 years.

‘‘I plan to meet with you prior to . . . your next court

date at which time we will discuss the contents of this

letter carefully and fully. At the same time I wanted

you to have this information in advance so that you

would have an opportunity to consider it before our

next meeting. Please understand that I am not making

any recommendation at this time. I am simply communicating to you what was discussed at the pretrial conference.’’ (Emphasis added.)
On December 8, 1998, Attorney Donald Cardwell met

with the petitioner and reviewed the contents of the

November 22, 1998 letter ‘‘to make further sure that he

understood’’ the available plea offers. On December 11,

1998, the petitioner formally rejected both plea offers.

Attorney Donald Cardwell’s brother and law partner,

Attorney Nicholas Cardwell, represented the petitioner

at his criminal trial. On January 20, 2000, during voir

dire, the state filed its witness list, disclosing both

Owens and Holmes. On January 25, 2000, the petitioner

filed a motion for disclosure and production, which,

in addition to general discovery requests, also sought

information concerning Owens and Holmes. Attorney

Donald Cardwell passed away in 2002.

At his habeas trial, the petitioner testified that in

November, 1998, Attorney Donald Cardwell informed

him of the two available plea offers. The petitioner

further testified that they discussed the offers as well

as his possible sentence exposure if he continued to

trial and was found guilty. The petitioner explained that

he rejected the plea offers because ‘‘[Donald] Cardwell

advised [him] that the state didn’t have a strong case

against [him] . . . [and] [t]here was only one eyewitness, and he [wasn’t] credible . . . .’’ The petitioner

testified that he never was advised of the existence of

Holmes during plea negotiations, and that he could only

recall Cardwell discussing three witnesses: Owens, Rakestrau and Donna McNair.4 The petitioner averred that

he did not become aware of Holmes’ statement and

identification until January, 2000, after Attorney Nicholas Cardwell had taken over his representation.

Attorney Nicholas Cardwell also testified at the petitioner’s habeas trial. Because the underlying criminal

matter concluded in 2000, he could not recall many

specifics of his firm’s representation of the petitioner

and had no recollection as to what was in the petitioner’s file when he took over his representation. Furthermore, he stated that he could not recall providing the

petitioner with Holmes’ statement in January, 2000. Cardwell spoke generally regarding his firm’s criminal trial

practices and policies, including how he would review

the state’s file and make copies pursuant to the state’s

attorney’s office ‘‘open file policy.’’ He also testified

that it was his practice to review all of the reports,

police statements, witness statements and anything else

that could be relevant to the trial. Cardwell further

testified that he could not ‘‘imagine trying a murder

case without reviewing all the evidence and giving the

defendant a complete understanding of the risks, and

the strengths, the weaknesses so that the defendant

could make an intelligent decision; and also what the

likelihood would be if you lost in terms of a sentence.’’

Assistant State’s Attorney John Fahey, the prosecutor

in the petitioner’s criminal trial, testified regarding his

office’s discovery practices and procedures. Fahey
stated that the Hartford Police Department sent all documents related to their investigation to the prosecutor’s

office. Fahey described Creamer, the assistant state’s

attorney handling the matter during pretrial, as ‘‘the

most thorough attorney in that office at that point in

terms of securing everything possible . . . .’’ He

attested that Holmes’ statement, which was taken on

June 11, 1996, would have been disclosed to defense

counsel ‘‘the minute it came in.’’ Fahey further stated

that there were no surprise witness statements disclosed on the eve of trial.

Attorney Kenneth Simon, a qualified expert in criminal defense matters in state court, also testified at the

habeas trial as the petitioner’s expert. Attorney Simon

testified as to the standard of care with respect to

defending criminal cases. He also testified regarding

the ‘‘open file policy’’ and how discovery was handled

in the judicial district of Hartford at the time of the

petitioner’s criminal trial. Simon stated that he had

reviewed the arrest warrant, search warrants, criminalistics reports, police reports, witness statements and

the various letters from Attorney Donald Cardwell to

the petitioner prior to testifying. Simon then opined as

to the adequacy of the information conveyed by Cardwell to the petitioner in the November 22, 1998 letter.

He testified that ‘‘in [his] view there was information

that [he] was given that is not referenced in that letter

that looks like a fairly important piece of evidence.’’

Simon, however, also acknowledged that he was looking at the letter in a ‘‘vacuum’’ and could not be sure

without seeing what Attorney Donald Cardwell had in

his file at the time.

The habeas court acknowledged the evidentiary

issues that this case presented, given that Attorney Donald Cardwell had passed away, stating that ‘‘[t]he only

other person who can testify as to what . . . may have

transpired between the two men would be [the petitioner], and of course, he testified in a somewhat inconsistent manner.’’ The court then concluded: ‘‘[I]t’s clear

to me, based upon the testimony of [Attorney] Nicholas

Cardwell of how he conducted his practice being a

partner with [Attorney] Donald Cardwell, when I look

at [the November 22, 1998 letter], I do not believe that

to be the entirety of the advice offered to [the petitioner]

by Attorney Donald Cardwell. I believe that [Attorney]

Donald Cardwell amplified upon that letter. Consequently, this court concludes that [the petitioner] was,

in fact, properly advised. The plea offer was clearly

explained. [The petitioner] was eminently aware of the

relative strength of the state’s case, and this court is

convinced that [the petitioner] . . . had been notified

by his lawyers of the risk of taking the case to trial.’’

(Emphasis added.)

We next set forth the legal principles that govern

ineffective assistance of counsel claims in the context
of plea negotiations. ‘‘Pretrial negotiations implicating

the decision of whether to plead guilty is a critical stage

in criminal proceedings . . . and plea bargaining is an

integral component of the criminal justice system and

essential to the expeditious and fair administration of

our courts. . . . For counsel to provide effective assistance, he must adequately investigate each case to

determine relevant facts. . . . This court has held that

[because] a defendant often relies heavily on counsel’s

independent evaluation of the charges and defenses,

the right to effective assistance of counsel includes an

adequate investigation of the case to determine facts

relevant to the merits or to the punishment in the event

of conviction.’’ (Internal quotation marks omitted.)

Mahon v. Commissioner of Correction, 157 Conn. App.

246, 253, 116 A.3d 331, cert. denied, 317 Conn. 917, 117

A.3d 855 (2015).

‘‘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. It is all too

tempting for a defendant to second-guess counsel’s

assistance after conviction or adverse sentence, and it

is all too easy for a court, examining counsel’s defense

after it has proved unsuccessful, to conclude that a

particular act or omission of counsel was unreasonable.

. . . A fair assessment of attorney performance

requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to

evaluate the conduct from counsel’s perspective at the

time. Because of the difficulties inherent in making the

evaluation, a court must indulge a strong presumption

that counsel’s conduct falls within the wide range of

reasonable professional assistance . . . .’’ (Internal

quotation marks omitted.) Helmedach v. Commissioner of Correction, 168 Conn. App. 439, 453, 148 A.3d

1105, cert. granted, 323 Conn. 941, 151 A.3d 845 (2016).

‘‘[C]ounsel performs effectively and reasonably when

he . . . provides a [defendant] with adequate information and advice upon which the [defendant] can make

an informed decision as to whether to accept the state’s

plea offer. . . . We are mindful that [c]ounsel’s conclusion as to how best to advise a client in order to avoid,

on the one hand, failing to give advice and, on the other,

coercing a plea enjoys a wide range of reasonableness

. . . . Accordingly, [t]he need for recommendation

depends on countless factors, such as the defendant’s

chances of prevailing at trial, the likely disparity in

sentencing after a full trial compared to the guilty plea

. . . whether [the] defendant has maintained his innocence, and the defendant’s comprehension of the various factors that will inform [his] plea decision.’’

(Citations omitted; internal quotation marks omitted.)

Sanders v. Commissioner of Correction, supra, 169
Conn. App. 828.

With the foregoing facts and legal principles in mind,

we now review the habeas court’s conclusion that Attorney Donald Cardwell did not render deficient performance. The record indicates that Holmes gave his

statement to Detective Knight on June 11, 1996, twentythree months prior to the probable cause hearing, and

twenty-nine months prior to the pretrial conference

at which the plea offers were made. Attorney Donald

Cardwell, however, never referenced Holmes in his

April and November, 1998 letters to the petitioner.

Importantly, the November 22, 1998 letter, which was

written while the two plea offers were pending, specifically states that ‘‘there is only one eyewitness available

to the state and there are serious questions as to his

reliability and credibility.’’ Despite the language of this

letter, the habeas court relied on the speculative testimony of Attorneys Nicholas Cardwell and Fahey, who

were not involved in the case during pretrial plea negotiations and could testify only as to their respective general practices. Because there is no evidence in the

record to support the finding that Attorney Donald Cardwell informed the petitioner of Holmes’ existence during plea negotiations and the habeas court relied on

the speculative testimony of Attorneys Nicholas Cardwell and Fahey, we conclude that this factual finding

was clearly erroneous. See Rosa v. Commissioner of

Correction, 171 Conn. App. 428, 434, 157 A.3d 654 (‘‘[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]), cert. denied, 326

Conn. 905, 164 A.3d 680 (2017); see also State v. Smith,

40 Conn. App. 789, 801, 673 A.2d 1149 (‘‘[i]f the trial

court’s conclusions or findings of fact rest on speculation rather than on sufficient evidence, they are clearly

erroneous’’), cert. denied, 237 Conn. 915, 675 A.2d 886,

cert. denied, 519 U.S. 873, 117 S. Ct. 191, 136 L. Ed. 2d

128 (1996).

Although we conclude that the court’s affirmative

finding of fact that Attorney Donald Cardwell must have

told the petitioner about Holmes’ statement in November, 1998, was clearly erroneous, that error does not

necessarily compel a conclusion that the petitioner met

his burden of persuasion that Attorney Donald Cardwell

never informed him about the existence of Holmes as a

witness.5 Although the petitioner testified that Attorney

Donald Cardwell never told him about Holmes, it is

unclear whether, in the absence of the habeas court’s

erroneous factual finding, it would have credited the

petitioner’s testimony that he was never told about

Holmes. Because questions of credibility are for the

finder of fact, we conclude that the case must be

remanded for a new trial on this issue.
B

We now turn to the prejudice prong of Strickland.

The petitioner claims that he was prejudiced by Attorney Donald Cardwell’s deficient performance because

he would have accepted one of the available plea offers

had he been properly advised during pretrial plea negotiations. At oral argument before this court, the petitioner’s counsel argued that habeas court’s oral decision

addressed only the performance prong and stopped

short of addressing prejudice. We agree and, accordingly, do not address the prejudice prong of Strickland

on appeal because the habeas court did not address

prejudice as it relates to Attorney Donald Cardwell’s

allegedly deficient performance during plea negotiations.

As we previously stated, Strickland requires that a

petitioner prove both deficient performance and

resulting prejudice, and thus a court can find against a

petitioner on either ground. See Thomas v. Commissioner of Correction, supra, 141 Conn. App. 471. In

the present case, the habeas court concluded that the

petitioner had failed to satisfy the performance prong of

Strickland, and, therefore, it did not need to determine

whether the petitioner also had failed to satisfy the

prejudice prong. See id.; see also Elsey v. Commissioner of Correction, 126 Conn. App. 144, 162, 10 A.3d

578 (‘‘[b]ecause both prongs . . . [of the Strickland

test] must be established for a habeas petitioner to

prevail, a court may dismiss a petitioner’s claim if he

fails to meet either prong’’ [internal quotation marks

omitted]), cert. denied, 300 Conn. 922, 14 A.3d 1007

(2011).

We note that the habeas court made certain factual

findings that tend to indicate that the petitioner could

have accepted a plea offer prior to or during trial.6 The

habeas court, however, did not make any findings as to

whether the petitioner had demonstrated ‘‘a reasonable

probability [that he] would have accepted the earlier

plea offer had [he] been afforded effective assistance

of counsel.’’ (Internal quotation marks omitted.) Mahon

v. Commissioner of Correction, supra, 157 Conn. App.

253, quoting Missouri v. Frye, supra, 566 U.S. 147; see

also Ebron v. Commissioner of Correction, 307 Conn.

342, 357, 53 A.3d 983 (2012) (to show prejudice in lapsed

plea case, petitioner must establish: ‘‘[1] it is reasonably

probable that, if not for counsel’s deficient performance, the petitioner would have accepted the plea

offer, and [2] the trial judge would have conditionally

accepted the plea agreement if it had been presented

to the court’’), cert. denied sub nom. Arnone v. Ebron,

569 U.S. 913, 133 S. Ct. 1726, 185 L. Ed. 2d 802 (2013).

Because the question of prejudice presents a mixed

question of fact and law; Thomas v. Commissioner

of Correction, supra, 141 Conn. App. 470; we cannot

determine whether the petitioner was prejudiced by
Attorney Donald Cardwell’s alleged deficient performance without the habeas court’s complete factual findings concerning prejudice.

In sum, we conclude that the habeas court abused

its discretion when it denied the petitioner’s petition

for certification to appeal because the resolution of the

petitioner’s underlying claim involves issues that are

debatable among jurists of reason and a court could

resolve the issues in a different manner. We further

conclude that the habeas court made an erroneous factual finding underlying its conclusion that Attorney

Donald Cardwell did not render deficient performance

during pretrial plea negotiations. We therefore remand

the case to the habeas court for a new trial.7

The judgment is reversed and the case is remanded

for a new trial.

In this opinion the other judges concurred.

1

In the amended petition, the petitioner also initially alleged the ineffective

assistance of his trial counsel, Attorney Nicholas Cardwell. That count,

however, was withdrawn on March 3, 2016.

2 Although the court discussed the performance and prejudice prongs of

Strickland v. Washington, 466 U.S. 668, 686–87, 104 S. Ct. 2052, 80 L. Ed.

2d 674 (1984), in its statement of law, it never expressly addressed either

prong in its analysis of the petitioner’s claim. Upon our review of the habeas

trial transcript, we conclude that the court, in finding that that the petitioner

had been ‘‘properly advised’’ by Attorney Donald Cardwell during plea negotiations, implicitly held that the petitioner failed to establish that Attorney

Donald Cardwell rendered deficient performance. We are unable to conclude, however, that the court made an implicit finding as to prejudice.

3 Rakestrau was an eyewitness to the October 22, 1994 incident. At the

probable cause hearing, he testified to hearing gunshots and to seeing a

‘‘black gentleman getting inside a red car.’’ Rakestrau, however, did not get

a clear view of the suspect and, therefore, was unable to identify the petitioner when he was interviewed by Detective Knight. Attorney Donald Cardwell viewed Rakestrau as a favorable witness for the defense.

4 McNair was a witness to the October 22, 1994 incident. McNair stated

that she heard four to five gunshots, after which she saw two black males

in a red car traveling at a high rate of speed on Irving Street. She provided

a license plate number that was only one digit different from that of the

red Subaru.

5

In similar contexts, our courts have been mindful that a lack of proof

as to fact ‘‘A’’ does not establish the existence of fact ‘‘B.’’ See Wyszomierski

v. Siracusa, 290 Conn. 225, 245 n.19, 963 A.2d 943 (2009) (‘‘difference

between the failure to draw a particular conclusion and the embrace of an

opposite conclusion’’[emphasis added]); DiVito v. DiVito, 77 Conn. App.

124, 138–39, 822 A.2d 294 (fact finder may not predicate finding of fact

simply on disbelief of evidence to contrary), cert. denied, 264 Conn. 921,

828 A.2d 617 (2003).

6 The petitioner testified that he was not aware that the plea offers

remained open after he had rejected them. The petitioner testified that after

receiving Holmes’ statement he told Attorney Nicholas Cardwell that he

wanted to take the plea offer, but Cardwell told him that the offer had

expired and that his only choice was to proceed with the trial. The petitioner

further testified that he was not aware that he could negotiate plea offers

during the trial. Although the petitioner professed his innocence throughout

the underlying criminal matter and the habeas trial, he testified that he

would have pleaded guilty because he had seen a lot of innocent people go

to trial and be found guilty. The court, however, heard the petitioner’s

testimony to that effect and did not credit it.

The petitioner’s testimony was contradicted by the testimony of both

Attorneys Nicholas Cardwell and Fahey. Attorney Nicholas Cardwell testified that he could not recall giving the petitioner Holmes’ statement during

voir dire in January, 2000. He also testified that it was the petitioner’s

decision to go to trial. He could not recall the petitioner ever ‘‘express[ing]

any interest in [him] approaching the state with any plea negotiations . . .
either prior to or during the course of the trial.’’ Cardwell testified that if

the petitioner had told him that he wanted to plead guilty, he would have

taken that information to Fahey and that given his firm’s practice and the

‘‘murder blitz’’ that was taking place in Hartford at the time, he could not

imagine telling the petitioner that the offer had expired and that the state

was not willing to make another offer.

Fahey testified that although the state’s plea offers were rejected and

withdrawn, he extended Attorney Creamer’s offer to Attorney Nicholas

Cardwell on the eve of the trial, subject to the approval of Judge Clifford.

Fahey further testified that he likely kept this offer open throughout trial

given that his office was trying ‘‘murder case after murder case after murder

case,’’ and his belief that the jury would not find the petitioner guilty.

Specifically, Fahey described the petitioner’s case as one of the weakest

cases of his career.

7 We note that a sua sponte motion for articulation, pursuant to Practice

Book § 60-5, is unavailable as Judge Fuger retired from the bench in January, 2017.