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ALISON BARLOW v. COMMISSIONER

OF CORRECTION

(AC 37417)

Beach, Keller and West, Js.

Argued February 9—officially released June 28, 2016
(Appeal from Superior Court, judicial district of

Tolland, Sferrazza, J.)

Naomi T. Fetterman, with whom was Aaron J.

Romano, for the appellant (petitioner).

Mitchell S. Brody, senior assistant state’s attorney,

with whom, on the brief, were Maureen Platt, state’s

attorney, and Eva B. Lenczewski, supervisory assistant

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

KELLER, J. Following a grant of certification to

appeal, the petitioner, Alison Barlow, appeals from the

judgment of the habeas court denying his amended

petition for a writ of habeas corpus. The petitioner

claims that the court improperly (1) denied his motion

for recusal, (2) denied his request for a new evidentiary

hearing, and (3) concluded that he failed to demonstrate

prejudice as a result of his trial counsel’s deficient performance.1 We agree with the first and second claims

raised by the petitioner, reverse the judgment of the

habeas court, and remand the case for further proceedings consistent with this opinion.

The following facts and procedural history are relevant to this appeal. In 1998, following a jury trial, the

petitioner was convicted of attempt to commit murder

in violation of General Statutes §§ 53a-49 (a) (2) and

53a-54a, conspiracy to commit murder in violation of

General Statutes §§ 53a-48 (a) and 53a-54a, two counts

of assault in the first degree in violation of General

Statutes § 53a-59 (a) (1) and alteration of a firearm

identification number in violation of General Statutes

§ 29-36. The petitioner was sentenced to a total effective

term of thirty-five years imprisonment. Following a

direct appeal brought by the petitioner, this court

affirmed the judgment of conviction. State v. Barlow,

70 Conn. App. 232, 797 A.2d 605, cert. denied, 261 Conn.

929, 806 A.2d 1067 (2002).

Following his conviction, the petitioner brought several petitions for a writ of habeas corpus. At issue in

the present appeal is an amended petition that the petitioner filed on January 17, 2002—his third petition for

a writ of habeas corpus—in which he alleged in count

one that his trial counsel, Attorney Sheridan L. Moore,

rendered ineffective assistance in connection with a

plea bargain offer2 and in connection with the representation that she afforded the petitioner during the trial

generally.3In count two, the petitioner alleged that his

prior habeas counsel, Attorney Christopher Neary, rendered ineffective assistance by failing to pursue a claim

that Moore had rendered ineffective representation during his criminal trial.

Following a hearing, the habeas court, Sferrazza, J.,

dismissed the amended petition with respect to the

claim of ineffective representation by Moore set forth

in count one. With respect to this count, the court, sua

sponte, invoked the doctrine of deliberate bypass and

stated, in relevant part: ‘‘This, the petitioner’s third

habeas action in which he has asserted claims ofineffectiveness against Moore, is a blatant example of the

procedural evils that the deliberate bypass rule was

created to thwart.’’ The court denied the petition with

respect to the claim of ineffective representation by

Neary set forth in count two. In rejecting the claim
that Neary rendered ineffective representation for, in

relevant part, failing to pursue a claim of ineffective

representation against Moore, the court made several

findings with respect to the nature of Moore’s representation of the petitioner with respect to the plea offer.

In relevant part, the court stated: ‘‘The court has found

that Moore fully apprised the petitioner as to the terms

of the plea offer, including its temporary nature, the

strengths and weaknesses of the prosecution and

defense cases, and the possible outcomes after trial.

. . .

‘‘Moore, at the time of the petitioner’s criminal case,

had seventeen years of experience handling serious

criminal matters as a special public defender and five

and one-half years as a public defender for the Waterbury judicial district. This experience entailed

defending clients charged with murder and trying such

cases to verdict. No expert witness testified critically

of Moore’s representation of the petitioner. To the contrary, Attorney Neary averred that he examined Moore’s

performance for the petitioner’s defense and found no

basis for such an ineffective assistance claim against

her.

‘‘The court determines that the petitioner has failed

to prove that Moore was deficient in any of the ways

alleged surrounding the petitioner’s rejection ofthe nine

year plea offer. As a result, the petitioner has also failed

to meet his burden of establishing that [prior habeas

counsel had] rendered ineffective assistance by withdrawing the claims against Moore through amended

petitions.’’ (Citations omitted.)

The petitioner appealed to this court from the judgment of the habeas court. With respect to the petitioner’s claim that the habeas court improperly dismissed

his claim that Moore had rendered ineffective assistance with respect to the trial court’s plea offer, this

court ruled that, in the absence of any claim by the

respondent, the Commissioner of Correction, that the

doctrine of deliberate bypass applied in the present

case, the habeas court erroneously had relied on that

doctrine in dismissing that aspect of the petition. Barlow v. Commissioner of Correction, 150 Conn. App.

781, 785–88, 93 A.3d 165 (2014). After reviewing the

findings of the habeas court and the evidence in the

record, which included Moore’s testimony during the

habeas trial,this court disagreed with the habeas court’s

assessment of Moore’s representation. This court,referring to Moore’s undisputed testimony at the habeas trial,

concluded as a matter of law that Moore’s performance

with respect to the plea offer was deficient ‘‘because

she did not give the petitioner her professional advice

and assistance concerning, and her evaluation of, the

court’s plea offer.’’ Id., 802.

Although we resolved the issue of deficient performance in the petitioner’s favor, this court rejected the
petitioner’s argument that, on the basis of the record,

we could presume that he was prejudiced, under the

applicable standard of prejudice, as a result of Moore’s

deficient performance concerning the plea offer. Id.

This court agreed with the respondent that the habeas

court was in the best position to determine an unresolved issue integral to whether the petitioner was prejudiced by Moore’s deficient performance, specifically,

‘‘whetheritis reasonably likely thatthe petitioner would

have accepted the offer had he received adequate advice

from Moore.’’ Id., 804. In light of our resolution of the

claim concerning Moore, this court concluded that it

did not need to consider, on its merits, ‘‘the issue of

whether Neary’s performance was deficient for failing

to pursue the issue of Moore’s performance.’’ Id., 783

n.1.

In the rescript of our opinion, this court set forth the

following order: ‘‘The judgment is reversed in part and

the case is remanded for further proceedings on the

issue of whether the petitioner was prejudiced by counsel’s deficient performance. In the event that the habeas

court finds that the petitioner has established prejudice,

and no timely appeal is taken from that decision, the

judgment is reversed and the case is remanded with

direction to grant the petition for a writ of habeas corpus. In the event that the habeas court finds that the

petitioner has failed to demonstrate prejudice, and no

timely appeal is taken from that decision, the judgment

is reversed only as to form and the court is ordered to

render judgment denying rather than dismissing the

petition as it relates to the claim that Moore provided

ineffective assistance of counsel.’’ Id., 804–805.

Judge Sferrazza, who had presided over the habeas

proceedings and, as discussed previously in this opinion, had issued the prior judgment that was the subject

of this court’s prior decision in the habeas matter, presided over the proceedings on remand. The record

reflects that on August 5, 2014, at a hearing following the

issuance of this court’s remand order, Judge Sferrazza

asked the parties to express their positions with respect

to several issues, including whether this court’s remand

order required the court to hold an evidentiary hearing

or whether the order required the court to make the

required finding with respectto prejudice on the basis of

the evidence in the record.Additionally, Judge Sferrazza

raised the issue of whether, following this court’s reversal of his priorjudgment, he was presumptively disqualified from continuing with the case.

The petitioner argued that this court’s remand order

required a new evidentiary hearing and argued that the

matter should be heard and decided by a different judge.

The petitioner’s attorney stated that the petitioner

would not waive his right to have the matter heard by a

different judge. The respondent argued that this court’s

remand order did notrequire a new evidentiary hearing,
but merely a decision to be made on the basis of the

evidence already in the record. Further, the respondent

argued that, because Judge Sferrazza had not yet

decided the specific factual issue set forth in this court’s

remand order, it was proper for him to hear and decide

the matter. Thereafter, on August 11, 2014, Judge Sferrazza issued a memorandum of decision in which he

concluded that this court’s remand order did notrequire

a new evidentiary hearing. In relevant part, the court

stated: ‘‘The court and the parties have found this

remand order somewhat perplexing. The respondent

asserts that the Appellate Court’s order is in the nature

of an articulation order concerning the prejudice determination. Under this view, this court would simply

review the evidence adduced at the habeas hearing and

render a decision resolving the prejudice question.

‘‘The petitioner, on the other hand, argues that the

Appellate Court intended that a new evidentiary hearing

take place at which the parties could introduce evidence

not previously presented. He also contends that General

Statutes § 51-183c would necessitate that a different

habeas judge preside overthe new evidentiary hearing.’’

The court went on to conclude that the respondent’s

interpretation of the order was more logical. Among

the reasons it set forth for its interpretation of this

court’s remand order, the court observed that the order

did not explicitly mandate a new hearing, but merely

necessitated further proceedings. Accordingly, with

respect to the prejudice issue before the court, it

directed the parties to submit supplemental briefs

‘‘based on the evidence previously admitted . . . .’’

On August 15, 2014, the petitioner filed a motion for

review of Judge Sferrazza’s decision with this court.

The respondent opposed the motion. This court dismissed the motion on the ground that the issues raised

therein were not subject to interlocutory review.4

On September 24, 2014, the petitioner filed a motion

for recusal in which he brought into focus some of

the arguments he had raised at the previous hearing

concerning this court’s remand order.5 Relying on § 51-

183c6 and Practice Book § 1-22 (a),7

the petitioner

argued that, following this court’s reversal of the prior

judgment, Judge Sferrazza was prohibited from retrying

the case on remand. Additionally, relying on rule 2.11

(a)8 of the Code of Judicial Conduct, the petitioner

argued that recusal was warranted because Judge Sferrazza’s impartiality during the proceedings on remand

might reasonably be questioned. The petitioner, first

noting that, in his prior decision, Judge Sferrazza, sua

sponte, had applied the doctrine of deliberate bypass

in the respondent’s favor and, in the context ofrejecting

the petitioner’s claim against habeas counsel, had

rejected the petitioner’s argument that Moore had performed deficiently in connection with the plea

agreement, argued: ‘‘It is difficult to conceive that the
trial court will be able to render a finding that [the

petitioner] was prejudiced by conduct that, on the same

record, the trial court did not find to be deficient, and

afford [the petitioner] the requested relief. In order to

preserve the appearance of impartiality and [the petitioner’s] constitutional rights to a fair trial, this court

should recuse itself.’’

In his memorandum of decision denying the petitioner’s motion for recusal, Judge Sferrazza stated in relevant part: ‘‘The court discerns no cogent reason for

recusal. . . . [T]his court has construed the remand

order to compel the court to issue findings and rulings

pertinent to the prejudice component of [Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984)] without the taking of additional evidence. It would be impossible for a different judge to

fulfill that mandate. This would fly in the teeth of the

Appellate Court’s remand order.

‘‘More importantly, the mere fact that a trial court

has ruled against a party on one aspect of a case and

that ruling was reversed on appeal fails to implicate

General Statutes § 51-183c. The Appellate Court did not

order a new trial, nor did it reverse this court as to the

prejudice prong of Strickland.’’ (Emphasis in original.)

The court, relying on Taft v. Wheelabrator Putnam,

Inc., 255 Conn. 916, 763 A.2d 1044 (2000), and State v.

Santiago, 245 Conn. 301, 715 A.2d 1 (1998), concluded

that recusal was not required by the Code of Judicial

Conduct. The court stated in relevant part: ‘‘The present

case, on remand, involves no new evidence. Although

it is not an articulation order, which compels a trial

court to explain the conclusion it reached previously,

the remand order is in the nature of an articulation of

a previously undecided matter. . . . [R]eversal of a

judge’s decision on one, limited issue in a case does

not disqualify the judge from further participation with

respect to other aspects of the case despite having the

salutary experience of being overturned by a higher

tribunal.’’

After the court ruled on the motion for recusal, both

the petitioner and the respondent filed briefs with

respect to the issue set forth in this court’s remand

order. The respondent objected to any attempt by the

petitioner to rely on matters that were outside of the

evidence that had been admitted at the petitioner’s

habeas trial.

In his written memorandum of decision of November

17, 2014, which is the subject of this appeal, Judge

Sferrazza stated: ‘‘Because the remand order [of the

Appellate Court] lacks clarity in some respects, a controversy had arisen as to whether the Appellate Court

intended to require an entirely new habeas trial, before

a different habeas judge, limited to adjudicating the

prejudice issue, or simply was returning the matter to

this court to make findings and draw conclusions as to
prejudice utilizing the prejudice test . . . based on the

evidence previously admitted. This court resolved that

conundrum . . . holding that the Appellate Court

meant for this court to supplement its original decision

by determining those factual issues as to prejudice,

which were previously unaddressed [in its prior

decision].’’

In its memorandum of decision, the court set forth

several findings concerning Moore that it had set forth

in its prior memorandum of decision addressing the

merits of the petition for a writ of habeas corpus.

Although it is unnecessary for us to set forth these

findings in detail, we observe that the court once again

set forth a generally positive assessment of Moore’s

performance with respect to the plea offer. The habeas

court found that Moore advised the petitioner of the

status of the plea offer made by the trial court, ‘‘thoroughly reviewed’’ the evidence and possible witnesses,

discussed matters related to the plea negotiations, and

cautioned the petitioner that ‘‘a jury might find the

prosecution’s case persuasive despite his denials of participation in the drive-by shooting’’ at issue in the case.

The petitioner, who received a sentence of thirty-five

years of incarceration, attempted to demonstrate that,

with proper counsel from Moore, it is reasonably likely

that he would have accepted a plea offer that would

have required him to serve fourteen years, execution

suspended after nine years. The court found: ‘‘At no

time did the petitioner express any interest in accepting

a plea disposition which entailed more than six years

incarceration. At the habeas trial, the petitioner averred

that, had Moore recommended that he agree to the plea

offer as being in his best interest, he would have readily

changed his plea and accepted the sentence indicated,

namely, fourteen years, execution suspended after the

service of nine years.’’ After observing that this court

had determined that Moore had performed deficiently

for failing to provide the petitioner with professional

advice and assistance, including her evaluation of the

plea offer, the habeas court observed that the petitioner

had not presented any expert evidence to support that

determination. The court also observed that Neary had

testified that Moore had ‘‘handled the petitioner’s criminal matter properly . . . .’’

The court went on to conclude that the petitioner

failed to establish by a preponderance of the evidence

that there was a reasonable likelihood that he would

have accepted the proposed disposition and given up

his right to a jury trial had Moore advised him that

accepting the offer was in his best interest. Among

the findings made by the court with respect to this

determination, the court found that the petitioner had

believed that his codefendants planned on retracting

their statements implicating him in the crimes, the petitioner had consented to Neary omitting allegations of

ineffective assistance of counsel claims against Moore
in the context of prior habeas matters, and that the

petitioner had ‘‘acknowledged that he never inquired

of Moore as to what he should do, nor about her lack

of recommendation [with respect to the plea offer].’’

After observing that the petitioner had a lengthy criminal history and a familiarity with the criminal court

system,the court stated: ‘‘Ifthe petitioner was irresolute

in his desire to go to trial, unless the plea offer was

reduced to six years imprisonment, one would have

expected him to request Moore’s opinion as to his best

course of action or know the reason why she declined

to afford him the benefit of that opinion.’’ On the basis

of its findings, the court denied the amended petition

for a writ of habeas corpus. This appeal followed.

I

First, we address the petitioner’s claim that the court

improperly denied his motion for recusal. We agree

with the petitioner’s claim.

Before this court, the petitioner reiterates the arguments that he raised before Judge Sferrazza, as set forth

previously in this opinion. Thus, the petitioner relies

on the undisputed procedural history of this case as

well as § 51-183c, Practice Book § 1-22 (a), and rule

2.11 (a) of the Code of Judicial Conduct.

The issue of whether § 51-183c required Judge Sferrazza’s recusal in the present case is an issue of statutory interpretation over which we exercise plenary

review. See, e.g., State v. Smith, 317 Conn. 338, 346, 118

A.3d 49 (2015). ‘‘The process of statutory interpretation

involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply.

. . . In seeking to determine [the] meaning [of a statute], General Statutes § 1-2z directs us first to consider

the text of the statute itself and its relationship to other

statutes. If, after examining such text and considering

such relationship, the meaning of such text is plain and

unambiguous and does not yield absurd or unworkable

results, extratextual evidence of the meaning of the

statute shall not be considered. . . . When a statute is

not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative

policy it was designed to implement, and to its relationship to existing legislation and common law principles

governing the same general subject matter . . . . The

test to determine ambiguity is whetherthe statute, when

read in context, is susceptible to more than one reasonable interpretation.’’ (Internal quotation marks omitted.) Efstathiadis v. Holder, 317 Conn. 482, 486–87, 119

A.3d 522 (2015).

The mandate of § 51-183c, a subject of prior judicial

interpretation, is plain and unambiguous. It provides in

relevant part: ‘‘No judge of any court who tried a case
without a jury . . . in which the judgment is reversed

by the Supreme Court, may again try the case. . . .’’

General Statutes § 51-183c. Our rules of practice give

effect to this statutory right by providing in relevant

part: ‘‘A judicial authority shall, upon motion of either

party or upon its own motion, be disqualified from acting in a matter if such judicial authority is disqualified

from acting therein . . . because the judicial authority

previously tried the same matter and . . . the judgment was reversed on appeal. . . .’’ Practice Book § 1-

22 (a).

‘‘[Section] 51-183c, by its plain terms, applies . . .

to judges.’’ State v. AFSCME, Council 4, Local 1565,

249 Conn. 474, 480, 732 A.2d 762 (1999). ‘‘The statute

explicitly prohibits a judge who tries a case that is

thereafter reversed to try the case on remand. There is

no reasonable manner in which the language of the

statute can be interpreted to yield a different result.’’

Gagne v. Vaccaro, 133 Conn. App. 431, 437, 35 A.3d 380

(2012), rev’d on other grounds, 311 Conn. 649, 90 A.3d

196 (2014). ‘‘Furthermore, we have narrowly construed

§ 51-183c to apply solely to trials and not to all types

of adversarial proceedings. . . . Section 51-183c does

not apply to pretrial or short calendar proceedings.’’

(Citation omitted; internal quotation marks omitted.)

Board of Education v. East Haven Education Assn.,

66 Conn. App. 202, 216, 784 A.2d 958 (2001) (declining

to extend § 51-183c to arbitration process); see also

Lafayette Bank & Trust Co. v. Szentkuti, 27 Conn. App.

15, 19, 603 A.2d 1215 (1991) (‘‘[s]ection 51-183c unambiguously applies exclusively to ‘trials,’ as distinguished

from pretrial or short calendar matters’’), cert. denied,

222 Conn. 901, 606 A.2d 1327 (1992).

Consistent with the arguments advanced by the

respondent, Judge Sferrazza reasoned that recusal was

not warranted because, in his prior decision, he had

not made any findings concerning prejudice and, thus,

this court had not reversed his prior judgment on the

basis of such findings. Judge Sferrazza also reasoned

that recusal was not warranted because he viewed this

court’s reversal as relating to only one aspect of his

decision. Likewise, the respondent urges us to conclude

that § 51-183c does not apply because this court’s

rescript expressly stated that the habeas court’s judgment was ‘‘reversed in part . . . .’’ Barlow v. Commissioner of Correction, supra, 150 Conn. App. 804.

Neither the court nor the respondent has advanced

any authority in support of their narrow interpretation

of § 51-183c, and we are unaware of any such authority.

The statute broadly applies to judges who have tried

cases without a jury in which their judgment later is

‘‘reversed.’’ The statute does not restrict its application

to cases in which issues to be considered on remand

are identical to those that already had been decided by

the trial judge. The reversal in the present case followed
a trial, and pertained to the same general claim that

was before the court during the proceedings on remand,

namely, whether, under the proper standard, his trial

counsel’s deficient performance prejudiced the petitioner, thereby depriving him of his right to a fair trial.

The habeas court’s prior judgment dismissed the petitioner’s petition with respect to the claim that Moore

had rendered ineffective assistance and denied his

claim that prior habeas counsel had rendered ineffective assistance. It appears that this court reversed the

judgment in part, rather than in its entirety, because

it was able to dispose of the appeal without reaching

the merits of all of the claims set forth therein, including

the claim challenging that portion of the habeas court’s

judgment in which it denied the petition. Specifically,

this court explained that, in light of its resolution of

the petitioner’s claim that the habeas court improperly

had dismissed the petition with respect to his claim

concerning Moore’s representation as to the plea offer,

it did not need to consider the claim that the habeas

court improperly had denied the petition with respect

to his claim that prior habeas counsel had rendered

ineffective assistance. Barlow v. Commissioner of Correction, supra, 150 Conn. App. 783 n.1.

Judge Sferrazza tried the petitioner’s habeas case and

rendered a judgment that, in part, was reversed by this

court. Although this court did not specify in its remand

order that a different judge should hear the case on

remand, the requirement imposed by § 51-183c nonetheless applied to the proceedings on remand. This court,

in either its prior decision or remand order, did not

include any language that suggested that Judge Sferrazza should hear the case on remand, the purpose of

which was not to determine whether error occurred,

but to correct error. Cf. State v. Douglas, 10 Conn. App.

103, 119, 522 A.2d 302 (1987); see also State v. Gonzalez,

186 Conn. 426, 436 n.7, 441 A.2d 852 (1982). It is of no

consequence to the proper application of the statute

thatthe remand orderrequired consideration of an issue

in the case that Judge Sferrazza had yet to resolve on its

merits or that the prior judgment had not been reversed

with respectto Judge Sferrazza’s resolution of that unresolved issue of fact. In order for the petitioner to prevail

on the issue of prejudice, the habeas court, on remand,

would have to substitute the decision of the Appellate

Court in place of its own prior decision, and to change

not only the reasoning or basis of its prior decision,

but the decision itself, which held that trial counsel’s

conduct was not deficient. See State v. Lafferty, 191

Conn. 73, 76, 463 A.2d 238 (1983) (on remand trial court

must proceed in conformity with views expressed in

reviewing court’s opinion).

Because we conclude that recusal was warranted

under § 51-183c and Practice Book § 1-22 (a), we need

not address the petitioner’s alternative argument that

recusal was warranted under rule 2.11 (a) of the Code
of Judicial Conduct. Rule 2.11 (a) of the Code of Judicial

Conduct provides in relevant part that ‘‘[a] judge shall

disqualify himself or herself in any proceeding in which

the judge’s impartiality might reasonably be questioned . . . .’’

Although we need notresolve the petitioner’s alternative argument that the court did not properly consider

the application of rule 2.11 (a) in the present case,

we observe that, from an early stage in the remand

proceedings, Judge Sferrazza expressed his uncertainty

with respect to this court’s remand order, including the

issue of whether it was proper for him to hear the case

on remand. He afforded the parties an ample opportunity to address the issue of his presumptive disqualification under § 51-183c. Judge Sferrazza’s decision reflects

that because he concluded, albeit erroneously, that his

participation in the proceedings on remand was

required by this court’s remand order,9 he logically

rejected the petitioner’s argument that his participation

in the proceedings on remand gave rise to a reasonable

question concerning his impartiality.10

The respondent is unable to demonstrate that Judge

Sferrazza’s failure to recuse himself from the case on

remand was harmless error. We conclude that the

proper remedy is to reverse the judgment denying the

petition for a writ of habeas corpus and to remand the

case to the habeas court, so that the issue set forth in

this court’s prior remand order may be tried by

another judge.

II

Although we have concluded in part I of this opinion

that the judgment must be reversed and we remand the

case to the habeas court, we shall address the petitioner’s claim that the habeas court improperly denied his

request for a new evidentiary hearing because that issue

is likely to arise during the proceeding on remand. See

State v. Tabone, 292 Conn. 417, 431, 973 A.2d 74 (2009)

(addressing issue likely to arise on remand). We agree

with the petitioner.

As we have explained previously in this opinion, this

court’s remand order stated in relevant part: ‘‘The judgment is reversed in part and the case is remanded for

further proceedings on the issue of whether the petitioner was prejudiced by counsel’s deficient performance.’’(Emphasis added.)Barlow v. Commissioner of

Correction, supra, 150 Conn. App. 804. Judge Sferrazza

invited the parties to address the issue of whether he

should hold a hearing on remand. When the parties first

appeared before the court to discuss the nature of the

proceedings on remand, the petitioner represented that

he wished to present additional evidence to the court,

even specifying the nature of some of the additional

evidence he intended to present.11 In declining this

request, the court appears to have been persuaded by
the fact that the remand order did not explicitly mandate a new hearing. Agreeing with the respondent’s

interpretation of the remand order, the court viewed

its role as being in the nature of providing an articulation. Thus, the court ordered the parties to brief the

prejudice issue solely on the basis of the evidence previously submitted to the court.

‘‘Determining the scope of a remand is a matter of

law because it requires the trial court to undertake a

legal interpretation of the higher court’s mandate in

light of that court’s analysis. . . . Because a mandate

defines the trial court’s authority to proceed with the

case on remand, determining the scope of a remand is

akin to determining subject matter jurisdiction. . . .

We have long held that because [a] determination

regarding a trial court’s subject matter jurisdiction is a

question of law, our review is plenary. . . .

‘‘Well established principles govern further proceedings after a remand by this court. In carrying out a

mandate of this court, the trial court is limited to the

specific direction of the mandate as interpreted in light

of the opinion . . . . This is the guiding principle that

the trial court must observe. . . . The trial court should

examine the mandate and the opinion of the reviewing

court and proceed in conformity with the views

expressed therein. . . . These principles apply to criminal as well as to civil proceedings. . . . The trial court

cannot adjudicate rights and duties not within the scope

of the remand. . . . It is the duty of the trial court

on remand to comply strictly with the mandate of the

appellate court according to its true intent and meaning.

No judgment other than that directed or permitted by

the reviewing court may be rendered, even though it

may be one that the appellate court might have

directed. . . .

‘‘We have also cautioned, however, that our remand

orders should not be construed so narrowly as to prohibit a trial court from considering matters relevant to

the issues upon which further proceedings are ordered

that may not have been envisioned at the time of the

remand. . . . So long as these matters are not extraneous to the issues and purposes of the remand, they

may be brought into the remand hearing.’’ (Citations

omitted; emphasis in original; internal quotation marks

omitted.) State v. Brundage, 320 Conn. 740, 747–48,

A.3d (2016); accord Higgins v. Karp, 243 Conn.

495, 502–503, 706 A.2d 1 (1998); Halpern v. Board of

Education, 231 Conn. 308, 313, 649 A.2d 534 (1994).

The narrow issue presented in the present claim is

whether the habeas court properly construed the

remand order such that it was akin to a request for

articulation, and therefore did not permit the presentation of additional admissible evidence relevant to the

issue submitted to the habeas court for its resolution.

The remand order required ‘‘further proceedings,’’ thus
using a broad phrase that does not preclude an evidentiary hearing. Nothing in the remainder of the remand

order, as interpreted in light of the opinion, limited the

habeas court to consider only the evidence that had

been admitted in the context of the prior proceeding.

Moreover, it was not appropriate for the court to

construe the order as being in the nature of an articulation request. As the court did not make findings with

respect to prejudice in its prior opinion, there were no

relevant findings for the court to explain. If this court

had determined that it was appropriate for the habeas

court merely to make a finding with respect to the issue

of prejudice on the basis of the evidence in the record,

it would not have ordered ‘‘further proceedings,’’ for

that purpose, but merely would have instructed the

court to articulate with respect to that limited factual

issue that had been litigated by the parties at the first

habeas trial. Further, it is not reasonable to construe

the remand order as a request for articulation because,

in the context of an articulation, the court is unable to

alter any of its original findings. An articulation request

is appropriate if ‘‘the trial court has failed to state the

basis of a decision . . . to clarify the legal basis of a

ruling . . . or to ask the trial [court] to rule on an

overlooked matter.’’ (Internal quotation marks omitted.) Dickinson v. Mullaney, 284 Conn. 673, 680, 937

A.2d 667 (2007). None of these circumstances existed

in the present case, in which, because of this court’s

resolution of the petitioner’s appeal, it became necessary for the court to resolve the factual issue related

to prejudice. ‘‘It is well established that a trial court

may not alter its initial findings by way of a further

articulation . . . . [A]n articulation is not an opportunity for a trial court to substitute a new decision [or]

to change the reasoning or basis of a prior decision

. . . .’’ (Citations omitted; internal quotation marks

omitted.) Sosin v. Sosin, 300 Conn. 205, 240, 14 A.3d

307 (2011).

Typically, the next step in our analysis would be to

consider whetherthe court’s failure to afford the parties

an opportunity to present evidence was harmful; Higgins v. Karp, supra, 243 Conn. 506; we need not reach

that issue, as it relates to a proper remedy in light of

ourresolution of the issue in part I of this opinion, which

leads us to remand the case for further proceedings.

We have addressed the present claim to clarify, for

purposes of those further proceedings, that this court’s

prior remand order did not preclude an evidentiary

hearing. Because the present case will be remanded to

a different habeas court judge for further proceedings

related to the issue of prejudice under Strickland, we

anticipate that a hearing will be conducted during which

the petitioner will be afforded an opportunity to present

evidence with respect to the issue of prejudice.

The judgment is reversed and the case is remanded
to the habeas court for a hearing before a different judge

for the purpose of determining the issue of prejudice in

accordance with this opinion.

In this opinion the other judges concurred.

1 Because our resolution of the petitioner’s first claim is dispositive of

the appeal, we need not address his third claim. We will address his second

claim because the issue involved therein is likely to arise during the proceedings on remand.

2 Specifically, the petitioner alleged: ‘‘Trial counsel’s representation with

regard to the plea bargain offer was ineffective in the following ways:

‘‘a. counsel failed to advise the petitioner that the offer was a one-time

offer and if not accepted immediately it would be withdrawn;

‘‘b. counsel failed to explain the court’s position regarding the offer;

‘‘c. counsel failed to explain that the court would not accept a counteroffer

from the petitioner;

‘‘d. counsel failed to return to the lockup and advise the petitioner that

the court rejected his counteroffer so that the petitioner would have an

opportunity to accept the court’s offer;

‘‘e. counsel failed to provide a meaningful explanation of the plea offer

extended by the court;

‘‘f. counsel failed to advise the petitioner as [to] the benefits of accepting

the court’s offer;

‘‘g. counsel failed to recommend the petitioner accept a beneficial offer;

‘‘h. counsel failed to request [that] the court continue the case to give the

petitioner an opportunity to consider the offer and/or discuss the offer with

family before the court withdrew the offer;

‘‘i. counsel failed to discuss the strength of the state’s case and evidence

before the plea offer was withdrawn;

‘‘j. counsel failed to advise the petitioner of the mandatory minimums,

maximum sentences of each separate offense and the effect of consecutive sentences;

‘‘k. counsel failed to ensure [that] the petitioner had an opportunity to

accept the court’s offer after he was fully advised of all implications, legal

and otherwise.’’

3 The petitioner alleged: ‘‘Trial counsel’s representation with regard to

trial was ineffective in the following ways:

‘‘a. counsel failed to visit the petitioner in jail to discuss the state’s evidence, the strength of the state’s case, the defenses which could be presented

and evidence which could be presented in defense of the case;

‘‘b. counsel failed to keep [the] petitioner informed as to the status of

the case;

‘‘c. counsel failed to communicate with [the] petitioner either in writing

or by telephone;

‘‘d. counsel failed to advise the petitioner of the specific elements of each

crime charged and the maximum and minimum penalties which could be

imposed if convicted;

‘‘e. counsel failed to meet with potential witnesses prior to trial;

‘‘f. counsel failed to request [that] the physical evidence be examined by

the state forensics laboratory;

‘‘g. counsel failed to develop any theory of defense for trial;

‘‘h. counsel failed to file a motion in limine to prevent testimony about

statements allegedly made by the petitioner to police officers;

‘‘i. counsel failed to do any investigation prior to trial.’’

4 As a result, this court’s ruling on the motion for review did not assist in

resolving the issues raised by Judge Sferrazza concerning the remand order.

5 Attached to the motion was an affidavit from the petitioner’s counsel,

Aaron J. Romano, in which he averred in relevant part that the motion was

made in good faith and in furtherance of the petitioner’s constitutionalrights.

6 General Statutes § 51-183c, entitled, ‘‘Same judge not to preside at new

trial,’’ provides: ‘‘No judge of any court who tried a case without a jury in

which a new trial is granted, or in which the judgment is reversed by the

Supreme Court, may again try the case. No judge of any court who presided

over any jury trial, either in a civil or criminal case, in which a new trial is

granted, may again preside at the trial of the case.’’

7 Practice Book § 1-22 (a) provides in relevant part: ‘‘A judicial authority

shall, upon motion of either party or upon its own motion, be disqualified

from acting in a matter if such judicial authority is disqualified from acting

therein pursuant to Rule 2.11 of the Code of Judicial Conduct or because

the judicial authority previously tried the same matter and a new trial was

granted therein or because the judgment was reversed on appeal. . . .’’

8 Rule 2.11 (a) of the Code of Judicial Conduct provides in relevant part:

‘‘A judge shall disqualify himself or herself in any proceeding in which the

judge’s impartiality might reasonably be questioned . . . .’’

9 The record reflects that Judge Sferrazza also based his decision, in part,
on his belief that this court’s remand order precluded him from considering

additional evidence. As we discuss in part II of this opinion, we disagree

with this construction of the order.

10 In resolving the recusal issue, Judge Sferrazza relied on Taft v. Wheelabrator Putnam, Inc., supra, 255 Conn. 916, and State v. Santiago, supra,

245 Conn. 340–41 n.25. Having reviewed these authorities, we conclude that

neither of them governs the outcome of the recusal issue before us. In Taft,

our Supreme Court did not set forth any analysis, let alone a holding, related

to the issue of a trial court’s involvement in a case on remand following a

reversal of its judgment by a reviewing court. It does not appear that such

issue was raised or considered in Taft. In Santiago, our Supreme Court

reversed the judgment of a trial court with respect to its decision not to

conduct a more extensive inquiry into a postverdict allegation of juror

misconduct, and remanded the case for further proceedings. State v. Santiago, supra, 340. On the basis of certain findings by the trial court, the

defendantraised a concern with respect to the court’s impartiality on remand

and claimed that a different trial judge should handle the case on remand.

Id., 340–41 n.25. Our Supreme Court stated that the findings at issue ‘‘[did]

not render the court biased and [were not a] bar to conducting the necessary

further inquiry on remand.’’ Id., 341 n.25. In its brief discussion of this issue,

the court did not refer to § 51-183c or Practice Book § 1-22 (a). We observe

that the court did not remand the case for a new trial on the merits of the

case, but forfurther proceedings related to an allegation of juror misconduct.

As opposed to a new trial, such a proceeding is more like a sentencing

hearing, a hearing related to pretrial matters, or a short calendar hearing—

proceedings to which § 51-183c does not apply. See, e.g., State v. Miranda,

260 Conn. 93, 131, 794 A.2d 506 (§ 51-183c does not apply to sentencing

hearings), cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002);

Board of Education v. East Haven Education Assn., supra, 66 Conn. App.

216 (§ 51-183c does not apply to pretrial hearings or short calendar hearings).

In light of the particular circumstances of that case and the issues that

would come before the court on remand, it determined prospectively that

the trial judge’s participation in the case on remand would not give rise to

an appearance of impartiality or bias. Its determination in this regard was

dispositive of the issue of the propriety of the trial court’s participation in the

case on remand. This court, however, did not make a similar determination in

its decision in the petitioner’s prior habeas appeal.

11 The petitioner argued that he had been assigned new counsel who

determined there was additional, available evidence bearing on the prejudice

inquiry that had not been presented at the first habeas trial. Both at the

hearing and in later submissions to the court, the petitioner explained that

he intended to present new evidence that included, but was not limited

to, transcripts from his criminal trial, expert testimony pertaining to trial

counsel’s plea advice, the arrest warrant for the petitioner, the mittimuses

reflecting the sentences received by the petitioner’s two codefendants, testimony from the petitioner’s two codefendants, and the witness list from the

petitioner’s criminal trial. The petitioner attached some of this additional

evidence to his posttrial brief but, following an objection by the respondent,

the court declined to consider such materials.

Among the arguments advanced in his posttrial brief, the petitioner argued

that such evidence was relevant to proving that, if Moore had counseled

the petitioner adequately, he would have had accurate and relevant information that would have affected his decision with respect to the plea. This

information, the petitioner argued, should have included an accurate assessment of the strength of the state’s case. Additionally, the petitioner argued

that Moore failed to explain the error of the petitioner’s belief that the state’s

case would be significantly weakened if his two coconspirators decided not

to stand behind their written statements to the police, which implicated

themselves and the petitioner in the shootings, or if they decided not to

testify against him at his trial. The petitioner argued that competent advice

would have conveyed that, even if the coconspirators did not testify, it was

possible for the state to introduce their statements implicating the petitioner

under § 8-6 (4) of the Connecticut Code of Evidence as dual inculpatory

statements, made against the penal interests of the two codefendants and

the petitioner. In the event that the two codefendants testified contrary to

their incriminatory statements made to the police, the petitioner argued, it

was possible for the state to introduce the statements of the coconspirators

under the doctrine of State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert.

denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), which is codified

in § 8-5 (1) of the Connecticut Code of Evidence, or § 6-10 of the Connecticut
Code of Evidence. The petitioner also argued that, insofar as there was

evidence that his plea decision was based on his belief that he had an alibi

defense, Moore did not file a notice of alibi and, in any event, was unable

to present the testimony of witness that could have provided such a defense.

Moreover, the petitioner intended to demonstrate that Moore failed to assess

the ‘‘severe punishment’’ that he could expect following a conviction.