DAMON BIGELOW v. COMMISSIONER

OF CORRECTION

(AC 37565)

Alvord, Keller and Dennis, Js.

Syllabus

The petitioner, who had been convicted, on a plea of guilty, of several

criminal and motor vehicle charges, filed a second petition for a writ

of habeas corpus, claiming that his criminal trial counsel, Z, and his first

habeas counsel, T, had rendered ineffective assistance. The petitioner

alleged, inter alia, that T failed to raise claims that Z improperly advised

and inadequately represented him during plea negotiations and during

his plea canvass, and failed to file a motion for an examination for entry

into a certain diversionary substance abuse program. The petitioner also

alleged that T failed to raise a claim that Z was ineffective for failing

to request three days of presentence confinement credit. The habeas

court rendered judgment denying the petition and, thereafter, denied

his petition for certification to appeal from the habeas court’s judgment.

On appeal to this court, the petitioner claimed, inter alia, that the habeas

court had abused its discretion in denying his petition for certification

and improperly denied his habeas petition. Held that the habeas court

did not abuse its discretion in denying the petition for certification to

appeal, as the petitioner failed to demonstrate that the issues he raised

were debatable among jurists of reason, that a court could resolve those

issues differently, or that the questions he raised deserved encouragement to proceed further, and, accordingly, his appeal was dismissed:

the record supported the habeas court’s factual findings underlying its

conclusion that Z provided appropriate advice pertaining to the petitioner’s guilty plea, as Z testified about the petitioner’s willingness to accept

certain of the state’s plea offers, and about matters that Z generally

discusses with clients, such as the petitioner, in preparation of a plea

canvass, including those pertaining to the charges against them and the

possible sentences they could receive; moreover, notwithstanding the

petitioner’s claim that had Z failed to adequately investigate the death

of a certain witness on whom the state relied, significant other evidence

supported the petitioner’s underlying convictions, and nothing in the

record suggested that the petitioner would have opted for a trial, as he

had several pending cases that exposed him to significant jail time;

furthermore, the court’s findings with respect to the petitioner’s claim

regarding Z’s failure to file a motion for examination for entry into the

substance abuse program were not clearly erroneous, as the court could

credit Z’s testimony that no information was presented to him that would

support a good faith basis to request such an examination, and Z did

not improperly fail to seek three days of presentence confinement credit

for time that the petitioner spent in lockup, as his discharge date would

have remained unchanged because his longest concurrent sentence was

not the one to which the credit applied.

Argued April 5—officially released August 1, 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. Appeal dismissed.

David B. Rozwaski, assigned counsel, for the appellant (petitioner).

Nancy L. Chupak, senior assistant state’s attorney,

with whom, on the brief, were Stephen J. Sedensky
III, state’s attorney, and Angela R. Macchiarulo, senior

assistant state’s attorney, forthe appellee (respondent).
Opinion

DENNIS, J. The petitioner, Damon Bigelow, appeals

following the denial of his petition for certification to

appeal from the judgment of the habeas court denying

his second postconviction 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 denied

his petition for a writ of habeas corpus in which he

claimed that counsel in both his underlying criminal

prosecution and his first habeas proceeding rendered

ineffective assistance. Because the petitioner has failed

to demonstrate that the habeas court abused its discretion in denying the petition for certification to appeal,

we dismiss the appeal.

The following facts underlying the petitioner’s convictions were set forth previously by this court. ‘‘In

early 2008, the petitioner was a defendant in a number

of criminal and motor vehicle matters pending in the

Superior Court.1 On September 24, 2008, while the petitioner was representing himself, the state extended a

plea bargain to him that would have resolved all pending

charges in exchange for guilty pleas and a total effective

sentence of forty years incarceration, execution suspended after fifteen years, to be followed by a five year

period of probation. The petitioner, who was free on

bond, was given time to consider the offer.

‘‘Two days later, on September 26, 2008, the police

executed a search and seizure warrant stemming from

suspected drug trafficking activities at the petitioner’s

condominium. During the execution of the search warrant, the petitioner was arrested after police found a

large quantity of heroin in a bedroom.2 As a result of

the additional charges, the state modified its original

plea offer to reflect the new drug charges. Considering

only the drug cases, the petitioner at trial would have

faced forty-six years of mandatory minimum incarceration with a maximum sentence of life. The state’s modified plea offer proposed that the petitioner actually

serve twenty years as opposed to the original offer

of fifteen.

‘‘On October 1, 2008, the petitioner retained the services of Attorney Eugene Zingaro. Although the petitioner initially appeared willing to accept the state’s

modified plea offer, Zingaro ultimately was successful

in restoring the original plea offer.’’ (Footnotes in original.)Bigelow v.Commissioner ofCorrection, 146Conn.

App. 737, 739, 80 A.3d 84 (2013). During the sentencing

hearing, the court thoroughly canvassed the petitioner,

determined that his pleas were knowing, intelligent and

voluntary, and accepted them.3

‘‘On November 12, 2008,

the petitioner accepted the original offer, pleaded guilty,

and was sentenced to forty years incarceration, execution suspended after fifteen years, followed by five
years of probation.’’ Id., 739–40.

Following his convictions, the petitioner brought two

petitions for writs of habeas corpus.4 The petitioner’s

second such petition was filed on July 5, 2012, and

amended for the final time on September 14, 2014. In

essence, the petitioner argued that his first habeas counsel, Melissa Toddy, rendered ineffective assistance by

failing to raise a claim regarding the deficient performance of his trial counsel, Zingaro. Specifically, the

petitioner alleged that Toddy should have pursued such

a claim because Zingaro rendered ineffective assistance

in failing (1) to properly advise him regarding his guilty

plea, (2) to file an application to participate in a drug

treatment program on his behalf, (3) to seek jail credit

for three days that he spent in local lockup, and (4) to

properly investigate the death of an informant on whom

the state relied.

In the second habeas trial, which is the subject of this

appeal, the court heard testimony from the petitioner,

Zingaro, and Toddy. Following the trial, the court issued

a memorandum of decision denying the petitioner’s

claims of ineffective assistance of counsel. The habeas

court subsequently denied the petition for certification

to appeal. This appeal followed. Additional facts will

be set forth as necessary.

As an initial matter, we set forth the standard of

review and the legal principles that guide our resolution

of the petitioner’s appeal. ‘‘In Simms v. Warden, 229

Conn. 178, 187, 640 A.2d 601 (1994), we 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), we incorporated the factors adopted by the

United States Supreme Court in Lozada v. Deeds, 498

U.S. 430, 431–32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991),

as the appropriate standard for determining whether

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

to demonstrate that the issues are debatable among

jurists of reason; that a court could resolve the issues

[in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.

. . . A petitioner who establishes an abuse of discretion

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

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

the habeas court abused its discretion in denying the

petitioner’s request for certification, we necessarily

must consider the merits of the petitioner’s underlying

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

‘‘We examine the petitioner’s underlying claim of ineffective assistance of counsel in order to determine

whether the habeas court abused its discretion in denying the petition for certification to appeal. Our standard

of review of a habeas court’s judgment on ineffective

assistance of counsel claims is well settled. In a habeas

appeal, this court cannot disturb the underlying facts

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

the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.’’ (Internal quotation marks omitted.)

Hankerson v. Commissioner of Correction, 150 Conn.

App. 362, 367, 90 A.3d 368, cert. denied, 314 Conn. 919,

100 A.3d 852 (2014).

With respect to the petitioner’s substantive 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 . . . . This right arises under the sixth and

fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. . . . As enunciated in Strickland v. Washington,

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

(1984)], 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 second prong of Strickland,

that his counsel’s deficient performance prejudiced his

defense, the petitioner must establish that, as a result

of his trial counsel’s deficient performance, there

remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal. . . .

The second prong is thus satisfied if the petitioner can

demonstrate that there is a reasonable probability that,

but for that ineffectiveness, the outcome would have

been different. . . . An ineffective assistance of counsel claim will succeed only if both prongs [of Strickland]

are satisfied. . . . The court, however, may decide

against a petitioner on either prong, whichever is easier.’’ (Citations omitted; internal quotation marks omitted.) Sanders v. Commissioner of Correction, 169

Conn. App. 813, 823, 153 A.3d 8 (2016), cert. denied,

325 Conn. 904, 156 A.3d 536 (2017).

The petitioner claims that the habeas court abused

its discretion in denying his petition for certification
to appeal because it improperly rejected his claims of

ineffective assistance of counsel. Specifically, the petitioner claims that the court abused its discretion in

denying the petition for certification to appeal because,

in the first habeas proceeding, Toddy failed to raise

claims that Zingaro rendered ineffective assistance in

that he failed (1) to adequately advise and represent

him during plea negotiations and in connection with his

eventual guilty plea, (2) to file a motion for examination

under a substance abuse diversionary program,5 and

(3) to request presentence confinement credit of

three days.

We turn to the merits of the petitioner’s claims,recognizing that the claimed deficient performance regarding

his first habeas counsel must fail if the claims of ineffective assistance of his trial counsel are without merit.

See Lozada v. Warden, 223 Conn. 834, 842–43, 613 A.2d

818 (1992).

I

The petitioner first claims that Zingaro inadequately

advised him throughout the plea negotiation and ineffectively represented him when he pleaded guilty. Specifically, he argues that Zingaro rendered ineffective

assistance because he failed (1) to ensure that there

was a proper factual and evidentiary basis for each

of the charged offenses, (2) to adequately inform the

petitioner of the minimum and maximum sentence for

each charge,6 and (3)to adequately investigate the death

of Nicklaus Larson.7 The habeas court concluded that

Zingaro provided appropriate advice relating to the petitioner’s guilty plea on the basis of the petitioner’s failure

to satisfy his burden of proof under Strickland. We

agree with the habeas court.

‘‘For ineffectiveness claims resulting from guilty

pleas, we apply the standard setforth in Hill v. Lockhart,

474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985),

which modified Strickland’s prejudice prong.’’ Baillargeon v. Commissioner of Correction, 67 Conn.App. 716,

721, 789 A.2d 1046 (2002). ‘‘To satisfy the performance

prong, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness. . . . A petitioner who accepts counsel’s

advice to plead guilty has the burden of demonstrating

on habeas appeal that the advice was not within the

range of competence demanded of attorneys in criminal

cases. . . . To satisfy the prejudice prong, the petitioner must show a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial. . . . Reasonable

probability does not require the petitioner to show that

counsel’s deficient conduct more likely than not altered

the outcome in the case, but he must establish a probability sufficient to undermine confidence in the outcome. . . . The Hill court noted that [i]n many guilty

plea cases, the prejudice inquiry will closely resemble
the inquiry engaged in by courts reviewing ineffectiveassistance challenges to convictions obtained through

a trial. For example, where the alleged error of counsel

is a failure to investigate . . . the determination

whether the error prejudiced the defendant by causing

him to plead guilty rather than go to trial will depend

on the likelihood that discovery of the evidence would

have led counsel to change his recommendation as to

the plea. This assessment, in turn, will depend in large

part on a prediction whether the evidence likely would

have changed the outcome of a trial.’’ (Citations omitted; internal quotation marks omitted.) McClellan v.

Commissioner of Correction, 103 Conn. App. 159, 162,

927 A.2d 992 (2007).

At the plea hearing, the petitioner responded in the

affirmative to Judge Reynolds’ canvass, which asked

him, inter alia, whether he was entering the plea voluntarily, whether he had had discussions regarding the

plea with Zingaro pertaining to the elements of the

charged offenses, the evidence the state had, and

whether Zingaro discussed the possible penalties,

including maximum periods of incarceration the

charges carried.8 At the conclusion of the canvass, the

court found that the petitioner’s plea was made ‘‘freely,

voluntarily, intelligently . . . with the effective assistance of counsel, and [that] a factual basis does exist

to support [the plea].’’ The court then accepted the

guilty plea as to each charge, and the petitioner did

not object.

‘‘A court may properly rely on . . . the responses of

the [petitioner] at the time [he] responded to the trial

court’s plea canvass . . . .’’ (Internal quotation marks

omitted.) Carey v. Commissioner of Correction, 86

Conn. App. 180, 185, 860 A.2d 776 (2004), cert. denied,

272 Conn. 915, 866 A.2d 1283 (2005).9

‘‘It is appropriate

to presume that in most cases counsel routinely

explains the consequences of a plea agreement.’’ Toles

v. Commissioner of Correction, 113 Conn. App. 717,

727, 967 A.2d 576, cert. denied, 293 Conn. 906, 978 A.2d

1114 (2009).

In support of his argument that his guilty plea was

not knowingly made, the petitioner primarily points to

his testimony that he gave at the second habeas trial

regarding Zingaro’s failure (1) to explain to him the

minimum and maximum sentence for each offense, and

(2) to ensure that there was adequate evidentiary support for the charged offenses. That testimony clearly

conflicts with the statements that the petitioner made

during the plea canvass. More importantly, however,

the habeas court discredited the petitioner’s testimony

and concluded that ‘‘Zingaro provided appropriate

advice.’’ These findings are supported by the record.

Zingaro testified at the second habeas proceeding

that his usual practice in 2008, the time he represented

the petitioner, with respect to preparing his clients prior
to a plea canvass, was that he would discuss with his

client the ‘‘charges he was pleading to, the sentences,

the total combined, the total effective sentence, which

charges were mandatory, [and] which carried mandatory time.’’ Zingaro further testified that he did not

believe that the state’s recitation of the facts during

the petitioner’s plea hearing were inaccurate. He also

testified that if there was an error in the state’s recitation of the facts or if the evidence did not support the

charges brought against the petitioner, he would have

raised those issues to the court. Moreover, Zingaro testified that the petitioner would have accepted the state’s

second offer of forty years imprisonment, suspended

after twenty years, and had no second thoughts about

accepting the third offer of forty years imprisonment,

suspended after fifteen years.

On the basis of the court’s canvass and its finding of

guilty at the plea hearing, without objection from the

petitioner, in addition to Zingaro’s testimony at the

habeas proceeding, we conclude that the habeas court’s

factual findings were not clearly erroneous.

Next, we briefly discuss the petitioner’s argument

that Zingaro failed to adequately investigate Larson’s

death. At the habeas trial, Zingaro testified that the state

was not exclusively relying on Larson’s testimony to

prove its case because it had other evidence, including

a written statement from Larson, and the testimony of

several police officers who witnessed drug transactions

between the petitioner and Larson. In Zingaro’s opinion,

the death of Larson did not significantly impact the

state’s case against the petitioner as a result.

In its memorandum of decision, the habeas court

stated: ‘‘The evidence alleged to have been withheld by

the prosecuting authority is the death of a Mr. Nicklaus

Larson, the person to whom the petitioner sold drugs

on his last arrest. Unfortunately for the petitioner’s

argument, the state clearly disclosed that fact in the

recitation of facts preceding the plea canvass before his

plea was accepted.’’ (Emphasis in original.) The court

further stated: ‘‘[T]he testimony by Mr. Larson was not

critical to the state proving that charge, as there were

several hand-to-hand transactions observed by the

undercover police officers. It is clear that the trial

defense counsel made due diligence in investigating

and understanding the facts surrounding the state’s

obviously strong case against the petitioner. This cannot form the basis for any complaint of ineffective assistance of trial defense counsel.’’

We agree with the habeas court’s conclusion relating

to this claim and need only address the petitioner’s

failure to satisfy the prejudice prong under Strickland.

See Sanders v. Commissioner of Correction, supra, 169

Conn. App. 821–23. Other than the petitioner’s own

testimony, nothing in the record suggests that the petitioner would have opted for trial. At the time of the
petitioner’s guilty plea, the petitioner had several pending criminal cases that exposed him to significant jail

time. The petitioner’s guilty plea ultimately consolidated and disposed of his numerous pending cases into

a sentence of forty years of imprisonment, execution

suspended after fifteen years. The habeas court stated

that ‘‘[a]ccepting this pretrial offer was prudent,’’ given

the substantial jail time he would have otherwise faced.

Moreover, although Larson’s death certainly did not

strengthen the state’s case, there was significant evidence supporting the petitioner’s convictions, including

the testimony of several undercover officers who witnessed the petitioner engage in hand-to-hand drug transactions. Simply put, even if we were to assume that the

petitioner and his counsel were unaware of Larson’s

death, the petitioner’s claim that he would have pursued

a jury trial is speculative at best. Accordingly, this argument is without merit.

II

The petitioner next argues that Zingaro rendered ineffective assistance by failing to file a motion for examination for alcohol or drug dependency pursuant to the

Connecticut Alcohol and Drug Abuse Commission’s

diversionary program (CADAC).10 Specifically, he contends that Zingaro rendered ineffective assistance

because he should have investigated the petitioner’s

personal history pertaining to substance abuse and

should have determined whether the petitioner would

have benefited from the program. We disagree.

In its memorandum of decision, the court noted that

‘‘in order to even be eligible for . . . CADAC one must

be addicted to substances at the time of the offense.

This record before this court is devoid of any evidence,

with the exception of the petitioner’s own self-serving

testimony, that the petitioner was even using drugs,

much less being addicted to them. In addition, the testimony at this habeas trial from [Zingaro] and the testimony at the petitioner’s first habeas trial clearly show

thatthe instant proceeding is the firsttime that there has

been any issue surrounding the petitioner’s potential

substance abuse addiction. This court, therefore, concludes that any allegation of drug addiction was never

brought to the attention of the trial defense counsel, so

there would not even have been any reason to consider a

CADAC application. Furthermore, merely making an

application for CADAC does not guarantee that such

an application would have been accepted by the trial

court. Given the large number of criminal files that the

petitioner had amassed, his reputation as the major

drug dealer in Danbury, the large bond placed upon

him, and comments by the trial court, it would appear

to be most likely, indeed almost a certainty, that a

CADAC application would have been rejected by the

trial court, even had the examination shown he was

addicted to substances at the time he committed his
offenses (an unlikely finding based upon the totality of

the evidence). The interests of justice would not have

been served by treatment. To summarize, it is clear that

[Zingaro] did not have a good faith basis to make a

request for a [diversionary program] examination and,

further, had one been made it is unlikely that it would

have been granted even if made.’’ (Footnote omitted.)

With respect to Zingaro’s testimony, the court noted

that he ‘‘went to great lengths to describe his observations of the physical condition of the petitioner . . .

and his opinion that there was no way this man was a

drug abuser. Second, the testimony by [Zingaro] is that

no information was ever presented to him to support

a suspicion that a [diversionary program] examination

would reveal a substance abuse issue.’’ The court

expressly credited Zingaro’s testimony and found that

‘‘the statements by the petitioner are rejected as being

unworthy of belief.’’

‘‘As an appellate court, we do notreevaluate the credibility of testimony, nor will we do so in this case. 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. . . . Furthermore, we are entitled

to presume that the trial court acted properly and considered all the evidence.’’ (Citation omitted; emphasis

in original; internal quotation marks omitted.) Palmenta

v. Commissioner of Correction, 152 Conn. App. 702,

707–708, 99 A.3d 1254, cert. denied, 314 Conn. 941, 103

A.3d 164 (2014).

The court expressly credited Zingaro’s testimony that

his personal observations did not lead him to conclude

that the petitioner was abusing drugs at the time Zingaro

represented him. Further, the only evidence suggesting

otherwise was the petitioner’s testimony, which the

court declined to credit. Because the habeas court is the

sole arbiter of credibility determinations, and nothing in

the record suggests that the court did not consider

all of the evidence, we thus conclude that the court’s

findings were not clearly erroneous. Accordingly, the

habeas court did not abuse its discretion in denying

the petition for certification to appeal with respect to

this claim.

III

Finally, the petitioner argues that he received ineffective assistance of counsel because Zingaro failed to

seek jail credit for three days that he spent in local

lockup. This argument fails for the following reasons.

In its memorandum of decision, the habeas court

rejected the petitioner’s claim regarding jail credit and

stated: ‘‘It is true that the petitioner was arrested on

[September 26, 2008] and held in the local lockup until

his arraignment in court on [September 29, 2008]. It is

also true that in order for the petitioner to receive any

credit for those three days, his counsel should have
requested it at the time of sentencing so the local lockup

credit could have been noted on the mittimus. It is clear

that [Zingaro] did not make such a request and that

normally this court would have found that to be deficient performance. But since this local lockup credit

applied only to Docket No. CR-08-0133512 and the sentence on that docket was five years concurrent to the

other sentences, this three day credit would not have

resulted in any reduction of the time that the petitioner

was required to serve. Consequently, there is no prejudice accruing to the petitioner.’’ (Internal quotation

marks omitted.)

The following legal principles guide our analysis. ‘‘If

more than one sentence is imposed on a prisoner, the

respondent calculates the incarceration period and discharge date by applying the provisions of General Statutes § 53a-38 (b), which provides in relevant part: Where

a person is under more than one definite sentence,

the sentences shall be calculated as follows: (1) If the

sentences run concurrently, the terms merge in and are

satisfied by discharge of the term which has the longest

term to run . . . . The merger concept embodied in

this provision simply requires that the respondent compare the length of each sentence, after adjustment for

its authorized credits, in order to ascertain which is the

longest for the purpose of determining the prisoner’s

discharge date. . . . The merger process does not alter

the fact that concurrent sentences remain separate

terms of imprisonment which the legislature has permitted to be served at one time.’’ (Citation omitted; internal

quotation marks omitted.) Harris v. Commissioner of

Correction, 271 Conn. 808, 819, 860 A.2d 715 (2004).

Even if the petitioner received the claimed presentence confinement credit, that credit applied only to

his sentence relating to Docket No. CR-08-0133512. As

noted in the preceding paragraph, when sentences run

concurrently, ‘‘the terms merge in and are satisfied by

discharge of the term which has the longest term to

run . . . .’’ (Emphasis added.) General Statutes § 53a38 (b). That merger process clearly precludes the petitioner from showing any prejudice resulting from any

alleged deficient performance because his discharge

date ultimately remains unchanged. See Harris v. Commissioner of Correction, supra, 271 Conn. 823. In short,

the lockup credit, if applied, would not affect the petitioner’s discharge date because the longest term to run

was not his sentence relating to Docket No. CR-08-

0133512. Thus, the court did not abuse its discretion

as it relates to this claim.

In sum, the petitioner has failed to establish that the

issues he raised are debatable among jurists of reason,

that a court could resolve them in a different manner

or that the questions he raised are adequate to deserve

encouragement to proceed further. See Patterson v.

Commissioner of Correction, 150 Conn. App. 30, 34,
89 A.3d 1018 (2014). In light of our foregoing conclusion

that the petitioner’s claims against his trial counsel are

without merit, the claims pertaining to his first habeas

counsel necessarily fail. Accordingly, we conclude that

the court did not abuse its discretion in denying the

petition for certification to appeal from the judgment

denying his amended petition for a writ of habeas

corpus.

The appeal is dismissed.

In this opinion the other judges concurred.

1

‘‘The petitioner was charged with multiple counts of possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (b), assault

of a police officer in violation of General Statutes § 53a-167c, and disorderly

conduct in violation of General Statutes § 53a-183.’’ Bigelow v. Commissioner of Correction, 146 Conn. App. 737, 739 n.1, 80 A.3d 84 (2013).

2

‘‘The petitioner was charged with possession of narcotics with intent to

sell in violation of General Statutes § 21a-278 (b).’’ Bigelow v. Commissioner

of Correction, 146 Conn. App. 737, 739 n.2, 80 A.3d 84 (2013).

3 The transcript of the plea canvass provides in relevant part:

‘‘The Court: Do you understand everything that’s going on here today?

‘‘[The Petitioner]: Yes, ma’am.

‘‘The Court: Have you had enough time to speak with your attorney?

‘‘[The Petitioner]: Yes, ma’am.

‘‘The Court: Did your attorney explain to you the elements of all these

offenses, the evidence the state has, and the possible penalties to you,

including maximum periods of incarceration?

‘‘[The Petitioner]: Yes, ma’am.

‘‘The Court: All right. Now, Attorney Zingaro, did you have time to do that?

‘‘Attorney Zingaro: Yes I did, Your Honor.

‘‘The Court: All right. Are you satisfied with the services of your attorney?

‘‘[The Petitioner]: Yes, ma’am. . . .

‘‘The Court: Okay. Do you understand, sir, by pleading guilty in all of

these files, you have waived certain rights?

‘‘[The Petitioner]: Yes, ma’am.’’

4

In the petitioner’s first petition for a writ of habeas corpus, he alleged

that his trial counsel was burdened by a conflict of interest as a result

of having represented him and his brother at the same time. Bigelow v.

Commissioner of Correction, supra, 146 Conn. App. 740–41. The habeas

court denied the petition for a writ of habeas corpus, but granted the petition

for certification to appeal. Id., 740. The petitioner appealed from that denial,

and this court affirmed the judgment of the habeas court. Id., 744.

5 See General Statutes § 17a-693 et seq.

6 The respondent, the Commissioner of Correction, argues that this court

is precluded from reviewing the petitioner’s claim that Zingaro rendered

ineffective assistance when he failed to inform the petitioner of the maximum

and minimum penalties because this claim was notraised before and decided

by the habeas court. Having reviewed the entire record, we conclude that

the petitioner’s argument is inextricably intertwined with the legal arguments

and claims litigated before and decided by the habeas court. Accordingly,

we conclude that this claim is reviewable on appeal. See Michael T. v.

Commissioner of Correction, 319 Conn. 623, 635 n.7, 126 A.3d 558 (2015).

7 Larson was a confidential informant to whom the petitioner sold drugs

on his last arrest before he pleaded guilty in the underlying case.

8 See footnote 3 of this opinion.

9

‘‘In a related area, our Supreme Court has stated that the court need

not advise a defendant of every possible consequence of a plea. Although

a defendant must be aware of the direct consequences of a plea, the scope

of direct consequences is very narrow. . . . In Connecticut, the direct consequences of a defendant’s plea include only the mandatory minimum and

maximum possible sentences . . . the maximum possible consecutive sentence . . . the possibility of additional punishment imposed because of

previous conviction(s) . . . and the fact that the particular offense does not

permit a sentence to be suspended. . . . The failure to inform a defendant as

to all possible indirect and collateral consequences does not render a plea

unintelligent or involuntary in a constitutional sense.’’ (Internal quotation

marks omitted.) Toles v. Commissioner of Correction, 113 Conn. App. 717,

727 n.5, 967 A.2d 576, cert. denied, 293 Conn. 906, 978 A.2d 1114 (2009).
10 See General Statutes § 17a-693 et seq.