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ROBERT MCMILLION v. COMMISSIONER

OF CORRECTION

(AC 35308)

DiPentima, C. J., and Alvord and Keller, Js.

Argued April 23—officially released August 5, 2014

(Appeal from Superior Court, judicial district of

Tolland, Solomon, J. [motion to consolidate]; Cobb,

J. [judgment].)

Michael Zariphes, assigned counsel, for the appellant (petitioner).

Rocco A. Chiarenza, assistant state’s attorney, with

whom, on the brief, were David I. Cohen, state’s attorney, and James M. Bernardi, supervisory assistant

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

KELLER, J. The petitioner, Robert McMillion, appeals

from the judgment of the habeas court denying his

second amended petition for a writ of habeas corpus.

On appeal, the petitioner claims that the court abused

its discretion in denying his petition for certification to

appeal and argues that the habeas court improperly (1)

granted the motion to dismiss brought by the respondent, the Commissioner of Correction, for the petitioner’s failure to make a prima facie case pursuant to

Practice Book § 15-81 on his claim that his trial counsel

rendered ineffective assistance by failing to advise him

adequately with regard to a pretrial plea offer, and (2)

failed to find that his trial counsel had rendered ineffective assistance by failing to advise him adequately with

regard to the pretrial plea offer. We conclude that the

habeas court abused its discretion in denying certification to appeal and that the habeas court improperly

granted the respondent’s motion to dismiss. Accordingly, we reverse the judgment and remand the case to

the habeas court for a new trial on the petitioner’s claim

that his trial counsel rendered ineffective assistance

when advising him as to whether to accept or to reject

the plea offer.

The following facts and procedural history are relevant to our resolution of the petitioner’s claims. On

September 16, 2007, the petitioner struck the victim,

Ivan Flores, in the head multiple times with a baseball

bat.2 The state charged the petitioner with the crime of

assault in the first degree in violation of General Statutes § 53a-59 (a) (1). On June 1, 2009, a jury found the

petitioner guilty of assault in the first degree, and the

trial court sentenced him to eight years of incarceration

followed by five years of special parole with special

conditions. This court affirmed his conviction on direct

appeal. State v. McMillion, 128 Conn. App. 836, 17 A.3d

1165, cert. denied, 302 Conn. 903, 23 A.3d 1243 (2011).

Thereafter, the petitioner filed the present habeas

action in which he alleged that both his trial and appellate attorneys had rendered ineffective assistance.3

On May 3, 2012, the petitioner filed the operative

second amended petition for a writ of habeas corpus

in which he alleged that his trial counsel, Attorney Jon

Imhoff, rendered ineffective assistance by failing: (1)

to call certain witnesses for the defense; (2) to investigate the evidence and/or the state’s witnesses adequately prior to trial; (3) to advise the petitioner

properly regarding the state’s pretrial plea offer; (4) to

procure the petitioner’s medical records and present

them as mitigating evidence; and (5) to procure an

expert witness to testify concerning the petitioner’s

medical condition in order to mitigate his culpability.

The respondent filed an answer and denied the petitioner’s claims.
On November 6, 2012, the habeas court held a hearing

at which the petitioner testified as the only witness on

his behalf. As to the third claim of ineffective assistance

of trial counsel regarding Imhoff’s advice concerning

the plea offer, the petitioner testified that he had been

represented by Imhoff at the criminal trial and met

with him on four occasions prior to trial. The petitioner

claimed that, prior to trial, Imhoff conveyed to him a

plea offer by the state that would require that he spend

five years in prison.4 He testified that when Imhoff conveyed the plea offer, ‘‘He told me . . . [t]he plea bargain was five years. He told me if I took it to trial, I

would get five, mandatory. He never explained to me

that if I was to take it to trial, that the five mandatory

was the minimum, that I could get up to twenty years.

He never explained that to me. He told me that it was

[a] five [year] plea bargain, and if I was to go to trial,

it would be five, mandatory, and I kept telling him, I

said, Well, there’s no mandatory sentence in the state

of Connecticut for this charge.5 He told me . . . Listen.

I know. I’m the attorney here.’’ On the basis of Imhoff’s

alleged explanation, the petitioner decided to reject the

plea offer, concluding that he was not taking a risk by

proceeding to trial because he would spend five years

in prison regardless of whether he pleaded guilty or

was convicted and sentenced after a trial. He indicated

that Imhoff never advised him whether to accept or

reject the five year offer. The petitioner stated that

Imhoff did not explain until jury selection began that, by

going to trial, he faced a five year mandatory minimum

sentence and that his maximum exposure on the charge

of first degree assault was twenty years in prison. At

that point, the petitioner claimed, he asked Imhoff to

determine if the plea offer ‘‘was still on the table.’’ Upon

inquiry, Imhoff advised him that the offer no longer was

available. The petitioner testified that had he known a

rejection of the plea offer exposed him to a maximum

penalty of twenty years in prison if he was convicted

after trial, he would have accepted the state’s offer.

Following the petitioner’s habeas testimony, he

rested without calling any further witnesses. In addition, the transcripts of his underlying criminal jury trial,

including the sentencing proceeding, and the decision

in his direct appeal were, by agreement of the parties

prior to the start of the trial, admitted as full exhibits.

Prior to calling any witnesses, the respondent orally

moved to dismiss the petition atthe close ofthe petitioner’s case.6 The respondent argued that the petitioner

failed to show any evidence of Imhoff’s deficient performance. Specifically, the respondent argued that the only

evidence presented was that the alleged five year plea

offer had been made, and that the petitioner received

an eight year sentence after rejecting the offer and was

found guilty at trial. The respondent asserted that, given

the posttrial result, a sentence of eight years incarceration followed by five years special parole, Imhoff had
a better assessment of the worth of the case in terms

of an ultimate prison sentence than did the prosecutor,

and that it was entirely reasonable for the petitioner to

reject a five year plea offer in exchange for proceeding

to trial and being exposed to an additional three years

in prison at that time.

In response, the petitioner argued that his own testimony as to what Imhoff told him, along with his understanding of counsel’s advice, demonstrated ineffective

representation and established a prima facie case to

survive the respondent’s motion to dismiss. The petitioner acknowledged that ‘‘of course, the court can

believe him or not believe him . . . but right now, as

it stands,’’ the petitioner’s testimony was sufficient to

prevent dismissal of his claim of ineffectiveness on the

basis of the adequacy of counsel’s advice concerning

the pretrial plea offer.

‘‘In Strickland v. Washington, [466 U.S. 668, 687, 104

S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States

Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he

must show that counsel’s assistance was so defective

as to require reversal of [the] conviction . . . . That

requires the petitionerto show (1)that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense . . . . [A] successful

petitioner must satisfy both prongs . . . [and the] failure to satisfy either . . . is fatal to a habeas petition.’’

(Citation omitted; internal quotation marks omitted.)

Perez v. Commissioner of Correction, 150 Conn. App.

371, 377–78, 90 A.3d 374 (2014). The habeas court, in

entering a dismissal on the claim of counsel’s ineffective

assistance as to advice regarding the plea offer, relied

on the recent United States Supreme Court decision in

Missouri v. Frye, U.S. , 132 S. Ct. 1399, 182 L.

Ed. 2d 379 (2012), as to the standard for establishing

ineffective assistance in the context of a rejection of a

pretrial plea offer. On the basis of that case, the habeas

court ruled that the petitioner had failed to present a

prima facie case that he was prejudiced by Imhoff’s

alleged deficient performance because he had not presented any evidence that the trial court would have

accepted the terms of the plea offer had it been presented to that court. The habeas court then ‘‘directed

[a] verdict’’7 against the petitioner on his claim that he

was improperly advised on the plea offer.8 The habeas

court subsequently denied the petitioner certification

to appeal and this appeal followed. Additional facts and

procedural history will be set forth as necessary.

The petitioner claims that the habeas court abused

its discretion in denying certification to appeal on the

ground that the habeas court improperly dismissed his

claim concerning ineffective assistance during the plea

bargaining process due to its misinterpretation of the

United States Supreme Court decision in Frye. The peti-
tioner maintains that, based upon a proper application

of Frye, he presented sufficient evidence to survive a

dismissal. We agree that the court’s denial of certification to appeal constituted an abuse of discretion and

that the court improperly dismissed the petitioner’s

case.

We begin by setting forth the applicable standard of

review and procedural hurdles that a petitioner must

surmount to obtain appellate review of the merits of a

habeas court’s denial of a habeas petition following

denial of certification to appeal. ‘‘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 omitted; internal quotation marks

omitted.) Tutson v. Commissioner of Correction, 144

Conn. App. 203, 214–15, 72 A.3d 1162, cert. denied, 310

Conn. 928, 78 A.3d 145 (2013).

‘‘The conclusions reached by the trial court in its

decision to dismiss [a] habeas petition are matters of

law, subject to plenary review. . . . [When] the legal

conclusions of the court are challenged, [the reviewing

court] must determine whether they are legally and

logically correct . . . and whether they find support in

the facts that appear in the record.’’ (Internal quotation

marks omitted.) Grant v. Commissioner of Correction,

121 Conn. App. 295, 298, 995 A.2d 641, cert. denied, 297

Conn. 920, 996 A.2d 1192 (2010).

The petitioner argues, and the respondent concedes,

that a reasonable jurist could conclude that the petitioner presented enough evidence to survive a dismissal
of his claim that Imhoff rendered ineffective assistance

when conveying the pretrial plea offer.9 For the reasons

that follow, we agree with the parties that the habeas

court abused its discretion in denying certification to

appeal.

The legal principles governing a trial court’s decision

to dismiss a claim for failure to present a prima facie

case pursuant to Practice Book § 15-8 are well settled.

‘‘A prima facie case, in the sense in which that term is

relevant to this case, is one sufficient to raise an issue

to go to the trier of fact. . . . In order to establish a

prima facie case, the proponent must submit evidence

which, if credited, is sufficient to establish the fact or

facts which it is adduced to prove. . . . In evaluating

the [granting of] a motion to dismiss, [t]he evidence

offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and

every reasonable inference is to be drawn in [the plaintiff’s] favor.’’ (Internal quotation marks omitted.) Winn

v. Posades, 281 Conn. 50, 54–55, 913 A.2d 407 (2007);

see also Lapointe v. Commissioner of Correction, 113

Conn. App. 378, 388, 966 A.2d 780 (2009). ‘‘Whether the

plaintiff has established a prima facie case entitling the

plaintiff to submit a claim to a trier of fact is a question

of law over which [this court’s] review is plenary.’’

(Internal quotation marks omitted.) Winn v. Posades,

supra, 55.

The habeas courtrelied on the United States Supreme

Court decision in Missouri v. Frye, supra, 132 S. Ct.

1399, to dismiss the petitioner’s claim that Imhoff rendered ineffective assistance when conveying the pretrial plea offer. Specifically, the habeas court

interpreted Frye to require the presentation of direct

evidence ‘‘that the trial court would have accepted [the

terms of the] plea had it been brought to the court

. . . .’’ Frye and its companion case, Lafler v. Cooper,

U.S. , 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012),

held that habeas petitioners can establish a violation

of their sixth amendment right to counsel by proving

that there is ‘‘a reasonable probability [that] they would

have accepted the . . . plea offer had they been

afforded effective assistance of counsel.’’ Missouri v.

Frye, supra, 1409; see also Lafler v. Cooper, supra, 1384

(‘‘[i]n the context of pleas a defendant must show the

outcome of the plea process would have been different

with competent advice’’).

The petitioner in Lafler was similarly situated to the

petitioner here. He claimed that due to the inadequate

advice of counsel, he rejected a plea offer, went to trial

and that his sentence, imposed after conviction, was

more severe than the rejected plea offer. Lafler v. Cooper, supra, 132 S. Ct. 1383. In Lafler, the Supreme Court

held that in those circumstances, in order to satisfy the

Strickland prejudice prong, a petitioner ‘‘must show

that but for the ineffective advice of counsel there is a
reasonable probability that the plea offer would have

been presented to the court (i.e., that the defendant

would have accepted the plea and the prosecution

would not have withdrawn it in light of intervening

circumstances), that the court would have accepted its

terms, and that the conviction or sentence, or both,

under the offer’s terms would have been less severe

than under the judgment and sentence that in fact were

imposed.’’ (Emphasis in original.) Id., 1385.

In Frye, the United States Supreme Court elaborated

on how prejudice could be established from an objective standpoint without placing an extreme burden upon

the courts and litigants to routinely call judges and

prosecutors to the witness stand. Under Frye, the test

for whether a trial court would have accepted the terms

of a plea agreement is an objective test that does not

require direct evidence as to what an individual trial

judge would have done in a given case. Rather, this

determination of prejudice must be made by assessing

whether a ‘‘reasonable trial judge would have accepted

the sentence . . . .’’ Ebron v. Commissioner of Correction, 307 Conn. 342, 360, 53 A.3d 983 (2012), cert. denied

sub nom. Arnone v. Ebron, U.S. , 133 S. Ct. 1726,

185 L. Ed. 2d 802 (2013). In Frye, the court stated: ‘‘It

can be assumed that in most jurisdictions prosecutors

and judges are familiar with the boundaries of acceptable plea bargains and sentences. So in most instances

it should not be difficult to make an objective assessment as to whether or not a particular fact or intervening circumstance would suffice, in the normal course,

to cause prosecutorial withdrawal or judicial nonapproval of a plea bargain. The determination that there

is or is not a reasonable probability that the outcome

of the proceeding would have been different absent

counsel’s errors can be conducted within that framework.’’ Missouri v. Frye, supra, 132 S. Ct. 1410.

The habeas court in the present case analyzed the

petition in accordance with its interpretation of Frye

and Lafler. It does not appear that the court relied on

the recent decision of our Supreme Court in Ebron v.

Commissioner of Correction, supra, 307 Conn. 342,

which was released prior to the time that the court

rendered its decision and is directly applicable to the

present case.

Ebron analyzed the impact of both Frye and Lafler

on habeas claims concerning ineffective assistance of

counsel related to advice concerning plea offers. In

Ebron, the court stated: ‘‘[W]e must address what

appears to be a possible tension between Frye and

Lafler. Specifically, under Frye, the habeas court is

required to consider information that would have come

to the trial court’s attention after the defendant would

have accepted the plea offer but before he would have

been sentenced in determining whether the petitioner

was prejudiced by the deficient performance of counsel.
. . . The court in Lafler, however, declined to rule out

the possibility that a habeas court may be permitted to

consider such information when exercising its discretion in crafting a remedy. . . . If the habeas court

already has determined, however, that the petitioner

was prejudiced because it is reasonably probable that

the trial court would have imposed the sentence embodied in the plea offer even in light of an intervening

circumstance, such as the court’s review of a [presentence investigation]report or a victim impact statement,

it is difficult to understand why the court should be

permitted to consider such a circumstance again when

it exercises its discretion to determine whether the

imposition of that sentence is the appropriate remedy.

. . . Accordingly, in order to avoid potentially conflicting findings at the prejudice and remedy stages of a

habeas proceeding in a lapsed plea case, we conclude

that, to establish prejudice, a petitioner need establish

only that (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.’’ (Citations omitted; emphasis omitted; footnotes omitted.) Id., 354–58.

A conditional acceptance of a plea occurs prior to the

sentencing hearing. See State v. Thomas, 296 Conn. 375,

389, 995 A.2d 65 (2010) (trial court’s acceptance of plea

agreement necessarily contingent upon results of presentence investigation report); Practice Book § 43-10

(‘‘[b]efore imposing a sentence . . . [1] [t]he judicial

authority shall afford the parties an opportunity to be

heard and, in its discretion, to present evidence on any

matter relevant to the disposition, and to explain or

controvert the presentence investigation report . . .

or any other document relied upon by the judicial

authority in imposing sentence,’’ and [2] consider statements of victim and [3] defendant). The Supreme Court

in Ebron noted that a trial court lacks the authority to

unconditionally accept a guilty plea priorto considering

the results of a pending presentence investigation

report and indicated that in most cases, when a habeas

court finds prejudice under the standard previously set

forth, ‘‘that court should order the trial court to determine the proper remedy in light of any information

concerning the crime or the petitioner that would have

come to light between the acceptance of the plea offer

and the imposition of the sentence . . . .’’ Ebron v.

Commissioner of Correction, supra, 307 Conn. 358. The

court in Ebron adopted this bifurcated procedure to

provide ‘‘greater protections to habeas petitioners who

have received ineffective assistance of counsel during

the plea agreement process than those contemplated

in Lafler.’’ Id., 355 n.7. This standard, providing greater

protection to the petitioner, governs.

Although in this case no direct evidence was presented from a judge, prosecutor, or defense counsel as
to what the trial court would have done if it had been

presented with a five year plea agreement, viewing the

evidence in the light most favorable to the petitioner,

a reasonable jurist could have concluded that the petitioner presented sufficient circumstantial evidence,

through his testimony and exhibits, to survive dismissal.10 Viewing the petitioner’s testimony as truthful

and drawing ‘‘every reasonable inference . . . in [his]

favor’’; (internal quotation marks omitted) Winn v.

Posades, supra, 281 Conn. 55; a reasonable jurist could

have concluded that the petitioner had satisfied Strickland’s prejudice prong because he demonstrated that

it was reasonably probable that, if not for counsel’s

deficient performance, he would have accepted the plea

offer, and that the trial judge would have conditionally

accepted the plea agreement if it had been presented

to the court. Specifically, viewing all of the petitioner’s

testimony as true, a reasonable jurist could have found

that Imhoff had incorrectly advised the petitioner right

up until the first day of jury selection, that Imhoff failed

to advise the petitioner of the maximum penalty for the

charged offense, and that Imhoff misled the petitioner

to believe that he would not risk exposure to any additional prison time should he take the case to trial and

lose. A reasonable jurist, viewing the evidence in the

light most favorable to the petitioner, could have found

that but for the ineffective advice of counsel, there was

a reasonable probability that a reasonable trial court,

presented with the plea agreement requiring the petitioner to serve five years in prison, would have conditionally accepted it. As the discrepancy between the

five year plea offer and the petitioner’s ultimate sentence after being convicted at trial was only three years

of incarceration, a reasonable jurist, viewing the evidence in the light most favorable to the petitioner, could

infer that the plea offer was not unduly lenient in light

of the petitioner’s conduct and, therefore, that a trial

court would have conditionally accepted the terms of

the plea agreement.11 We note that, under Ebron,

whether a presentence investigation report, a victim

impact statement, or some other intervening occurrence prior to sentencing but subsequent to the conditional acceptance of the plea might have impacted on

the ultimate sentence are factors that‘‘should be considered at the remedy stage, not when the habeas court

is determining whether there was prejudice.’’ Ebron v.

Commissioner of Correction, supra, 307 Conn. 360.

We conclude that the petitioner has demonstrated

that whether he presented sufficient evidence to establish a prima facie case forineffective assistance of counsel on the basis of improper advice as to whether to

accept or reject a plea offer is debatable among jurists

of reason, that a court could resolve the issue differently, or that the question raised deserves encouragement to proceed further. Lozada v. Deeds, supra, 498

U.S. 431–32; Simms v. Warden, supra, 230 Conn. 616.
Consequently, we conclude that the court abused its

discretion in denying the petition for certification to

appeal on the basis of the claimed improper dismissal

of the petition.

Because a certifiable issue exists, we now turn to

the merits of the petitioner’s claim that the habeas court

erroneously dismissed his petition for failure to make

out a prima facie case. In reviewing the petitioner’s

testimony and other evidence in the light most favorable

to him, the petitioner established a prima facie case

for both deficient performance and resulting prejudice

under Strickland. ‘‘To establish Strickland prejudice a

defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceedings would have been different.

. . . In the context of pleas a defendant must show the

outcome of the plea process would have been different

with competent advice.’’(Citation omitted; internal quotation marks omitted.) Lafler v. Cooper, supra, 132 S.

Ct. 1384.

The petitioner’s testimony, which must be accepted

as true in ruling on the motion to dismiss, revealed

possible deficiencies with respect to Imhoff’s advice

regarding the plea offer. The facts and circumstances

surrounding the petitioner’s rejection of the plea offer,

as explained by him, demonstrate that an inadequate

level of information and advice was provided to him

by Imhoff on the issue of acceptance or rejection of

the plea. In addition, the transcripts of the petitioner’s

criminal jury trial proceedings and this court’s decision

in his direct appeal establish that the state had a strong

case against the petitioner, and thus, Imhoff should

have been strongly encouraging him to accept the plea

offer. The petitioner established a prima facie case that

he had not been advised by counsel of the maximum

penalty for the charged offense until the date of trial,

and that at that point the plea offer was off the table

and no longer available. He established a prima facie

case that he would have accepted a five year plea offer

had he been properly advised by his trial counsel and

that the trial judge would have conditionally accepted

the resulting agreement had it been presented to the

judge. In sum, the petitioner presented a prima facie

case, considering both his direct and circumstantial

evidence in the light most favorable to him, that there

was a reasonable probability that the plea agreement

would have been conditionally accepted by the trial

court had he been properly advised by counsel during

the plea process, and that the agreement’s terms would

have been less severe than the judgment and sentence

that were in fact imposed by the court after trial.

The habeas court erred in granting the midtrial dismissal. Although the habeas court might have been free,

at the conclusion of the trial, to reject the petitioner’s

ineffectiveness claim and deny it on the merits, the
court should have allowed the case to proceed to a

full conclusion.

We now address the proper remedy on appeal, an

issue on which the petitioner and the respondent disagree. The petitioner asserts that this court, having

found the dismissal inappropriate, should proceed to

evaluate only the evidence he presented in the truncated

habeas trial, fully credit his testimony and exhibits on

the basis of our review of the cold record, and conclude

that he proved trial counsel’s ineffective assistance due

to counsel’s failure to advise the petitioner properly as

to the plea offer and the ramifications of rejecting that

offer and going to trial.12 The petitioner maintains that,

pursuant to Ebron, should we determine that he proved

that his trial counsel was ineffective, the appropriate

remedy is to remand the case to the habeas trial court

with orders to grant the petition and then to remand

the case back to the trial court to exercise its discretion

to ‘‘place the habeas petitioner, as nearly as possible,

in the position that he would have been in if there had

been no violation of his right to counsel,’’ which could

involve resentencing the petitioner, vacating the conviction and resentencing the petitioner pursuant to the

plea agreement or leaving the conviction and sentence

from the trial undisturbed. (Internal quotation marks

omitted.)13 H. P. T. v. Commissioner of Correction,

310 Conn. 606, 615, 79 A.3d 54 (2013). The respondent

argues that we should remand the case for a new habeas

trial. We agree with the respondent.

It is axiomatic that ‘‘[a]ppellate courts never act as

finders of fact.’’ Gould v. Commissioner of Correction,

301 Conn. 544, 566, 22 A.3d 1196 (2011). ‘‘[A]n appellate

court cannot find facts or draw conclusions from primary facts found, but may only review such findings

as to see whether they might be legally, logically and

reasonably found.’’ (Emphasis in original; internal quotation marks omitted.) Holley v. Commissioner of Correction, 62 Conn. App. 170, 180, 774 A.2d 148 (2001).

In this case, because the habeas court prematurely and

succinctly concluded the trial by dismissing the petitioner’s claim for a lack of evidence on the Strickland

prejudice prong, other than the court’s conclusion that

the petitioner failed to ‘‘demonstrate that there’s a reasonable probability that the plea would have been

entered without the prosecution canceling it or the trial

court refusing to accept it,’’ the record is devoid of any

other factual findings or other relevant legal determinations forthis court to review.14 ‘‘Whetherthe [petitioner]

can sustain his burden past this [early] stage of the

proceedings is an entirely different matter and not a

question this court needs to answer to resolve this

appeal.’’ Sullivan v. Thorndike, 104 Conn. App. 297,

305, 934 A.2d 827 (2007), cert. denied, 285 Conn. 907,

908, 942 A.2d 415, 416 (2008). At the time a court is

considering a motion for dismissal for failure to make

out a prima facie case, a petitioner is not required to
overcome any of the respondent’s defenses. Although

a determination of the truthfulness of a statement is a

question of fact for the trier, a trial court would act

‘‘improperly [if] it made findings of fact at this stage

instead of taking the plaintiff’s evidence . . . as true.’’

Gambardella v. Apple Health Care, Inc., 86 Conn. App.

842, 851 n.6, 863 A.2d 735 (2005). We can only speculate

as to what the habeas court’s factual findings and legal

conclusions would have been had it not been required

to review the petitioner’s case in the light most favorable to him.15 In addition, the cessation of the trial

prevented the respondent from presenting his case.16

A trial court’s normal assessment of a case prior to

rendering its decision is never based on a view of the

plaintiff’s evidence in only the most favorable light,

but rather, is based on a review of all the evidence

introduced by each party. In conducting such review,

the trial court determines what weight to give specific

items of evidence, including deciding which testimony

to believe and which testimony not to believe. The basis

for a court’s dismissal of a case under Practice Book

§ 15-8 can never be presumed equivalent to the result

that would be achieved after a consideration of a case

fully tried on its merits. Thus, it has been uniformly

determined that when an appellate court determines

that a trial court improperly granted a motion for dismissal pursuant to Practice Book § 15-8, the appropriate

remedy is to remand the case for a new trial. Thomas

v. West Haven, 249 Conn. 385, 387, 734 A.2d 535 (1999)

(trial court improperly dismissed plaintiff’s case for

failing to make out prima facie case and remanded for

new trial), cert. denied, 528 U.S. 1187, 120 S. Ct. 1239,

146 L. Ed. 2d 99 (2000); Lapointe v. Commissioner of

Correction, supra, 113 Conn. App. 404 (habeas case

remanded to habeas court for further proceedings after

reversal, in part, of judgment of dismissal under Practice Book § 15-8); F.E. Crandall Disposal, Inc. v. Ledyard, 141 Conn. App. 442, 455, 62 A.3d 544 (2003)

(judgment of dismissal for failure to make out prima

facie case of fraud reversed and case remanded for

new trial).

The judgment is reversed and the case is remanded

for a new trial solely on the petitioner’s claim, set forth

in his amended petition, that his trial counsel rendered

ineffective assistance by failing to advise him adequately with regard to the state’s pretrial plea offer.

In this opinion the other judges concurred.

1 Practice Book § 15-8 provides in relevant part: ‘‘If, on the trial of any

issue of fact in a civil matter tried to the court, the plaintiff has produced

evidence and rested, a defendant may move for judgment of dismissal, and

the judicial authority may grant such motion if the plaintiff has failed to

make out a prima facie case . . . .’’

2 This court’s opinion in the petitioner’s direct appeal provides a full

description of the facts that the jury reasonably could have found at trial.

See State v. McMillion, 128 Conn. App. 836, 17 A.3d 1165, cert. denied, 302

Conn. 903, 23 A.3d 1243 (2011).

3 The petitioner filed a subsequent habeas petition on October 21, 2011,
arising from the same underlying criminal trial. That petition involved a

claim of ineffective assistance of appellate counsel on direct appeal. On

April 13, 2012, the habeas court, Solomon, J., granted the petitioner’s motion

to consolidate the two petitions under one controlling docket number. On

May 3, 2012, the petitioner filed the operative second amended petition,

which incorporated the ineffective assistance of appellate counsel claim in

the second count. The habeas court dismissed the second count on November 6, 2012. That dismissal is not a subject of this appeal.

4 During cross-examination of the petitioner, the respondent suggested

that the state’s file contained information that the pretrial plea offer was

actually offered by the trial court, and that the terms of that offer encompassed a ten year prison sentence, suspended after service of five years,

followed by a period of probation. The petitioner, however, denied any

recollection that the plea offer included a split sentence. Although the

respondent’s question is not evidence, it nevertheless suggests that had the

habeas trial not ended with a judgment of dismissal, the respondent might

have presented testimony that the terms of the plea offer differed from the

petitioner’s recollection and that a trial judge was willing to accept a plea

agreement that contemplated five years incarceration. In the statement of

issues in his brief to this court, the petitioner claimed ineffective assistance

of counsel regarding advice as to ‘‘the state’s (and/or the court’s) plea

offer . . . .’’

5 Although the record does notreveal what charge or charges the purported

plea offer encompassed, the petitioner was originally charged, tried, and

convicted on a sole count of assault in the first degree pursuant to § 53a59 (a) (1).

General Statutes § 53a-59 (b) provides in relevant part: ‘‘Assault in the

first degree is a class B felony provided . . . any person found guilty under

subdivision (1) of subsection (a) shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended

or reduced by the court . . . .’’

6

Initially, the respondent moved to dismiss at the close of the petitioner’s

case. When the habeas court questioned the appropriate characterization

of his motion, however, the respondent offered it as a motion for a directed

verdict. We agree with both the respondent and the petitioner that because

habeas trials are civil actions and are tried to the court and not a jury, it

is more appropriate to move to dismiss pursuant to Practice Book § 15-8

at the close of a petitioner’s case. See Grant v. Commissioner of Correction,

121 Conn. App. 295, 299, n.2, 995 A.2d 641 (as habeas trial is without jury,

motion for directed verdict would be more accurately presented as motion

for dismissal for failure to make out prima facie case under Practice Book

§ 15-8), cert. denied, 297 Conn. 920, 996 A.2d 1192 (2010); see also Young

v. Bridgeport, 135 Conn. App. 699, 705 n.7, 42 A.3d 514 (2012) (treating

motion for directed verdict in accordance with substance as opposed to

label and noting challenge to prima facie case properly raised as motion to

dismiss pursuant to Practice Book § 15-8).

In addition, Practice Book § 23-29 provides in relevant part: ‘‘The judicial

authority may, at any time, upon its own motion or upon motion of the

respondent, dismiss the petition, or any count thereof, if it determines

that . . .

‘‘(5) any otherlegally sufficient ground for dismissal of the petition exists.’’

7 See footnote 6 of this opinion.

8 The habeas court also ‘‘directed [a] verdict’’ with regard to the petitioner’s

other allegations of trial counsel’s ineffectiveness, agreeing with the respondent that the petitioner had failed to meet his burden of establishing that

additional witnesses or investigation would have benefited the defense at

trial. The petitioner has not challenged the habeas court’s ruling as to these

other allegations of ineffectiveness and, therefore, the resolution of these

grounds is not at issue in this appeal. See Sotomayor v. Commissioner of

Correction, 135 Conn. App. 15, 18 n.1, 41 A.3d 333, cert. denied, 305 Conn.

903, 43 A.3d 661 (2012).

9 The respondent, however, does not concede that the evidence presented

by the petitioner would require a habeas court, sitting as the ultimate fact

finder, to grant the petitioner habeas relief. The respondent’s concession

in this appeal has no bearing on the habeas court’s subsequent analysis of

either deficient performance or prejudice upon retrial.

10 There is no legal distinction between the probative value of direct versus

circumstantial evidence, and a petitioner can rely on either to prove his

case. Greene v. Commissioner of Correction, 123 Conn. App. 121, 132–33,

2 A.3d 29, cert. denied, 298 Conn. 929, 5 A.3d 489 (2010), cert. denied sub
nom. Greene v. Arnone, U.S. , 131 S. Ct. 2925, 179 L.Ed. 2d 1248 (2011).

11 As noted previously, there was a suggestion by the respondent, during

the cross-examination of the petitioner, that a trial judge had offered a plea

arrangement that required the petitioner to serve ten years, suspended after

five years of incarceration. See footnote 4 of this opinion.

12 The petitioner’s third issue on appeal is, ‘‘Did the habeas court err when

it failed to find that the petitioner’s trial counsel was ineffective when he

failed to correctly, meaningfully, properly, adequately, timely and effectively

advise the petitioner as to the state’s [and/or the court’s plea offer] and the

ramifications of rejecting that offer and going to trial?’’ We do not resolve

this issue on its merits because, as fully discussed in this opinion, the proper

remedy in this case is to remand the case for a new habeas trial.

13 The petitioner argues, without citation to any authority, that because

the habeas court made no mention of its assessment of his credibility, it

should be assumed that the court found him credible. This argument is not

persuasive in light of the specific requirement that a court, in ruling on a

motion to dismiss for failure to make out a prima facie case, must accept

the petitioner’s testimony, as well as his other evidence, as true, and is

required to draw every reasonable inference in the petitioner’s favor. See

Gambardella v. Apple Health Care, Inc., 86 Conn. App. 842, 846, 863 A.2d

735 (2005). The petitioner also contends, again without citation to legal

authority, that a remand for a new habeas trial is prejudicial to him because

the respondent had a preview of his case during the initial hearing and, as

a result, the respondent will now be better prepared to defend his petition.

This is true of every case on appeal that is remanded for a new trial. It

could just as easily be said that the respondent is now prejudiced because

the petitioner has a second opportunity to present his case and to refine

and improve its presentation. In addition, as previously noted, in the proceedings on remand, the court is bound to apply the Ebron standard to the

petitioner’s ineffective assistance of counsel claim.

14 Although we agree with the petitionerthat no law requires a habeas court

to definitively articulate whether a petitioner’s or other witness’ testimony

is credible or incredible, such findings are often integral to habeas trial

courts’ decisions.

15 For example, portions of the petitioner’s testimony might possibly raise

questions as to his credibility: his stated inability to recall events due to a

medical condition, his professed lack of understanding of the plea bargaining

process despite numerous prior convictions, and his admission that although

he was unhappy with trial counsel’s advice on the purported five plea year

offer and requested new counsel prior to the commencement of his jury

trial, he never complained to the trial court that the plea offer had not been

adequately explained to him.

16 Practice Book § 15-8 also provides that ‘‘[t]he defendant may offer evidence in the event the motion is not granted, without having reserved the

right to do so and to the same extent as if the motion had not been made.’’

The rule does not contemplate that the making of such a motion bars the

moving party from ever presenting a defense.