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*********************************************** 
JOSEPH MOORE v. COMMISSIONER OF

CORRECTION

(AC 40112)

Lavine, Keller and Elgo, Js.

Syllabus

The petitioner, who previously had been convicted of robbery in the first

degree and commission of a class B felony with a firearm, sought a writ

of habeas corpus, claiming, inter alia, ineffective assistance of trial

counsel. Specifically, the petitioner claimed, inter alia, that his trial

counsel rendered ineffective assistance by failing to advise him of the

maximum sentence he faced if he was successful in proving a theory

of defense at trial that amounted to conceding that he was guilty only of

the lesser included offense of robbery in the third degree. The petitioner

claimed that trial counsel had a duty to encourage him to accept the

state’s plea offers by advising him that the maximum sentence at trial

were he convicted only of robbery in the third degree would be at least

as severe or exceed the sentences of the plea offers initially made to

him. The habeas court rendered judgment denying the amended habeas

petition and, thereafter, denied the petition for certification to appeal,

and the petitioner appealed to this court. Held that the habeas court

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

appeal, the petitioner having failed to demonstrate that his trial counsel

provided ineffective assistance: trial counsel adequately advised the

petitioner on the best course of action given the facts of the underlying

case and informed him of the potential total sentence to which he

was exposed, as trial counsel had many discussions with the petitioner

throughout the course of his representation, advised the petitioner to

accept each of the plea deals offered to him, and properly explained

the state’s evidence and provided adequate information for the petitioner

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

offers, and the failure of counsel to inform the petitioner of the potential

total sentence exposure he faced if he succeeded on the unlikely theory

of proving robbery in the third degree and counsel’s decision not to

further persuade the petitioner to accept the plea offers did not constitute deficient performance, the petitioner having cited no relevant case

to support his claim on appeal and having presented no evidence at the

habeas trial to demonstrate that the prevailing professional norms in

Connecticut made it necessary for trial counsel to advise the petitioner

in the manner he claimed was required; accordingly, the petitioner failed

to show that his claim was debatable among jurists of reason, that a

court could have resolved the claim in a different manner, or that the

question was adequate to deserve encouragement to proceed further.

Argued September 14—officially released November 27, 2018

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, Cobb, J.; judgment denying the petition; thereafter, the court denied the petition

for certification to appeal, and the petitioner appealed

to this court. Appeal dismissed.

Michael W. Brown, for the appellant (petitioner).

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

with whom, on the brief, were Matthew C. Gedansky,

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

KELLER, J. The petitioner, Joseph Moore, appeals

following the denial of his petition for certification to

appeal from the judgment of the habeas court denying

his amended petition for a writ of habeas corpus. The

petitioner claims that the habeas court (1) abused its

discretion in denying his petition for certification to

appeal and (2) improperly rejected his claim that his

trial counsel had rendered ineffective assistance. We

conclude that the court did not abuse its discretion in

denying the petition for certification to appeal, and,

accordingly, dismiss the petitioner’s appeal.

The following facts and procedural history are relevant to our resolution of the petitioner’s claims. Following a trial, a jury found the petitioner guilty of robbery

in the first degree in violation of General Statutes § 53a134 (a) (4) and commission of a class B felony with a

firearm in violation of General Statutes § 53-202k. The

petitioner then pleaded guilty, in response to a part

B information, that the aforementioned offenses were

committed while on release in violation of General Statutes § 53a-40b. The petitioner also pleaded guilty to a

second part B information charging him with being a

persistent felony offender in violation of General Statutes § 53a-40 (f). The trial court sentenced the petitioner

to a total effective term of thirty-four years incarceration.

On direct appeal from the petitioner’s underlying conviction, this court set forth the following facts that the

jury reasonably could have found. ‘‘At approximately 1

p.m. on July 13, 2009, the [petitioner] entered the New

Alliance Bank in Columbia wearing a white tank top

and dark sweatpants. Branch manager Penny Ritchie

and tellers Maria DePietro and Michelle LaLiberty, who

were working at the bank that day, observed the [petitioner] approach the check writer station. The [petitioner] then asked another patron, David Woodward,

where the withdrawal slips were located, at which point

the [petitioner] took a slip from the station and began

to write on it. Photographs from the bank’s security

cameras introduced into evidence depict the [petitioner] writing on a piece of paper at the check writer

station and then approaching the teller station with the

piece of paper in his hand.

‘‘The [petitioner] approached Ritchie and handed her

a deposit slip that read, ‘[g]ive cash. I have gun.’ When

Ritchie explained that she was not a teller, the [petitioner] ordered her to ‘[g]ive me the cash. Give it now.’

Ritchie then slid the deposit slip to DePietro, who

unlocked her teller drawer. As she did, the [petitioner]

demanded, ‘[h]urry up, hurry up’ and reached over the

counter. DePietro then handed the [petitioner] $3500

in cash.

‘‘The [petitioner] immediately exited the bank and
Woodward followed. As Ritchie locked the bank’s doors

and DiPietro called 911, LaLiberty closed the bank’s

drive-through window. As she did, she saw the [petitioner] walking at the rear of the bank to a grassy

strip between the drive-through lane and an adjacent

firehouse. LaLiberty wrote down a description of the

[petitioner] at that time. Approximately six hours later,

the Connecticut state police apprehended the [petitioner] in a grassy area near Route 66 in Columbia.

The [petitioner] subsequently reviewed and executed

a waiver of Miranda1

rights form and agreed to speak

with Detective Derek Kasperowski. The [petitioner]

then admitted to robbing the bank and stated that he

remembered ‘smoking crack before going into the bank,

going to the bank teller and telling her to give him

money.’ Although no firearm was found on the [petitioner’s] person or the surrounding area, the $3500 in cash

was recovered.’’ (Internal quotation marks omitted.)

State v. Moore, 141 Conn. App. 814, 816–17, 64 A.3d

787, cert. denied, 309 Conn. 908, 68 A.3d 663 (2013).

This court affirmed the petitioner’s conviction. Id., 825.

On May 16, 2014, the petitioner, as a self-represented

party, filed an application for a writ of habeas corpus.

After obtaining counsel, he filed an amended petition

on April 28, 2016. He alleged in relevant part that his

constitutional right to effective assistance of counsel

was violated, arguing that his ‘‘trial counsel’s performance was deficient because he failed to adequately

counsel the petitioner about the advisability of

accepting the plea offer’’ and that there was a ‘‘reasonable probability that—but for trial counsel’s deficient

performance—the petitioner would have accepted the

plea offer and the court would have imposed a more

favorable sentence than the petitioner received.’’

At the habeas trial on September 15, 2016, the habeas

court heard testimony from Matthew Gedansky, the

state’s attorney in the petitioner’s criminal case, Douglas Ovian, the petitioner’s trial counsel, and the petitioner. In particular, the petitioner testified that he

admitted from the beginning that he robbed the bank,

but he believed that he was only guilty of robbery in

the third degree because he only had handed the bank

teller a note and never hurt anyone.2 There was testimony that three plea offers were made to the petitioner:

an offer for ten years to serve with five years of special

parole; an offer for ten years to serve with two years

of special parole; and an offer made at a judicial pretrial

conference with Sullivan, J., offering the petitioner

fifteen years to serve if he pleaded guilty to one count

of robbery in the first degree.3 Ovian testified that his

notes indicated that he advised the petitioner to accept

the offers and that he would never have told the petitioner to take this case to trial. In addition, Gedansky

testified that he recalled Ovian telling him that Ovian

had advised the petitioner to take the offer of ten years

to serve with two years special parole. The petitioner
testified that he rejected these offers because he had

faith the state might present him with a more favorable

offer, and that he believed he deserved only five years

of imprisonment. There also was differing testimony

between Ovian and the petitioner with respect to what

Ovian advised as to the potential maximum sentence

the petitioner faced if he was found guilty of all the

charges, and whether he advised the petitioner of the

potential maximum sentence he faced if he prevailed

on a robbery in the third degree theory at trial.4

In a memorandum of decision filed January 10, 2017,

the habeas court denied the amended petition for a writ

of habeas corpus, finding that the petitioner had failed

to prove deficient performance or prejudice. In particular, the habeas court found that ‘‘Ovian had many discussions with the petitioner throughout the course of

his representation,’’ and that Ovian ‘‘went over the

state’s evidence with [the petitioner] and he advised

the petitioner to take each of the deals as they were

offered given the circumstances.’’ Additionally, the

habeas court found that Ovian ‘‘informed the petitioner

that he was facing a maximum exposure of forty-eight

and one-half years if convicted of robbery in the first

degree due to the sentence enhancements the petitioner

faced.’’ The habeas court concluded that Ovian relayed

the offers to the petitioner, properly explained the

state’s evidence to him, and adequately warned him of

the exposure he could face should he choose to go to

trial. On January 17, 2017, the petitioner filed a petition

for certification to appeal, which was later denied by

the habeas court. This appeal followed.

We begin by setting forth the applicable standard of

review and procedural hurdles that the petitioner must

overcome in order to obtain appellate review of the

merits of a habeas court’s denial of the 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),

[the 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 dem-
onstrate 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.’’ (Internal quotation marks omitted.) Hankerson

v. Commissioner of Correction, 150 Conn. App. 362,

366–67, 90 A.3d 368, cert. denied, 314 Conn. 919, 100

A.3d 852 (2014).

On appeal, the petitioner argues that the habeas court

improperly rejected his claim that his trial counsel,

Ovian, had rendered ineffective assistance.5

In his view,

although Ovian advised him of the maximum sentence

that he faced on the charge of robbery in the first degree,

Ovian’s performance was deficient for failing to advise

him of the maximum sentence he faced if he was successful in proving at trial that he was guilty only of

committing the lesser included offense of robbery in

the third degree.6 For the reasons set forth in this opinion, we disagree with the petitioner and conclude that

the habeas court did not abuse its discretion in denying

the petition for certification to appeal.

‘‘The sixth amendment to the United States constitution, made applicable to the states through the due

process clause of the fourteenth amendment, affords

criminal defendants the right to effective assistance

of counsel. Davis v. Commissioner of Correction, 319

Conn. 548, 554, 126 A.3d 538 (2015), cert. denied sub

nom. Semple v. Davis, U.S. , 136 S. Ct. 1676, 194

L. Ed. 2d 801 (2016); see also Thiersaint v. Commissioner of Correction, 316 Conn. 89, 100, 111 A.3d 829

(2015) (criminal defendant constitutionally entitled to

adequate and effective assistance of counsel at all critical stages of criminal proceedings). Although a challenge to the facts found by the habeas court is reviewed

under the clearly erroneous standard, whether those

facts constituted a violation of the petitioner’s rights

under the sixth amendment is a mixed determination

of law and fact that requires the application of legal

principles to the historical facts of this case. . . . As

such, that question requires plenary review by this court

unfettered by the clearly erroneous standard.’’ (Internal

quotation marks omitted.) Duncan v. Commissioner

of Correction, 171 Conn. App. 635, 646, 157 A.3d 1169,

cert. denied, 325 Conn 923, 159 A.3d 1172 (2017).

The United States Supreme Court has made clear

that the failure to adequately advise a client throughout

the plea process can form the basis for a sixth amendment claim of ineffective assistance of counsel, and

that such claims should be evaluated under the twopart standard enunciated in Strickland v. Washington,

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

(1984). See Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct.
366, 88 L. Ed. 2d 203 (1985). ‘‘[I]t 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.’’ (Internal quotation marks omitted.) Silver v. Commissioner of Correction, 180 Conn. App. 592, 597, 184

A.3d 329, cert. denied, 328 Conn. 940, 184 A.3d 759

(2018).

‘‘Prior to trial an accused is entitled to rely upon his

counsel to make an independent examination of the

facts, circumstances, pleadings and laws involved and

then to offer his informed opinion as to what plea should

be entered. Determining whether an accused is guilty

or innocent of the charges in a complex legal indictment

is seldom a simple and easy task for a layman, even

though acutely intelligent.’’ Von Moltke v. Gillies, 332

U.S. 708, 721, 68 S. Ct. 316, 92 L. Ed. 309 (1948). ‘‘A

defense lawyer in a criminal case has the duty to advise

his client fully on whether a particular plea to a charge

appears to be desirable.’’ (Internal quotation marks

omitted.) Vazquez v. Commissioner of Correction, 123

Conn. App. 424, 437 (2010), 1 A.3d 1242, cert. denied,

302 Conn. 901, 23 A.3d 1241 (2011), quoting Boria v.

Keane, 99 F.3d 492, 496 (2d Cir. 1996), cert. denied, 521

U.S. 1118, 117 S. Ct. 2508, 138 L. Ed. 2d 1012 (1997).

‘‘Although the defendant ultimately must decide

whether to accept a plea offer or proceed to trial, this

critical decision, which in many instances will affect a

defendant’s liberty, should be made by a represented

defendant with the adequate professional assistance,

advice, and input of his or her counsel. Counsel should

not make the decision for the defendant or in any way

pressure the defendant to accept or reject the offer,

but counsel should give the defendant his or her professional advice on the best course of action given the facts

of the particular case and the potential total sentence

exposure.’’ (Emphasis omitted.) Barlow v. Commissioner of Correction, 150 Conn. App. 781, 800, 93 A.3d

165 (2014). ‘‘We are mindful that [c]ounsel’s conclusion

as to how best to advise a client in order to avoid, on

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

coercing a plea enjoys a wide range of reasonableness.

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

depends on countless factors, such as the defendant’s

chances of prevailing at trial, the likely disparity in

sentencing after a full trial compared to the guilty plea

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

(Citation omitted; internal quotation marks omitted.)

Sanders v. Commissioner of Correction, 169 Conn.
App. 813, 828, 153 A.3d 8 (2016), cert. denied, 325 Conn.

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

The petitioner argues that his trial counsel’s performance was deficient for failing to advise him of the

maximum sentence he faced if he was successful in

proving a theory of defense at trial that amounted to

conceding that he was guilty only of the lesser included

offense of robbery in the third degree.7 Specifically, the

petitioner argues that although Ovian advised him of

the maximum exposure he faced if convicted of robbery

in the first degree, Ovian’s performance was deficient

because he had a duty to further encourage the petitioner to accept the plea offers by advising him that

the maximum sentence at trial were he convicted only

of robbery in the third degree would be ‘‘at least as

severe’’ or exceed the sentences of the plea offers initially made to him. In other words, the petitioner argues

that his trial counsel was deficient because he was

required, but failed, to adequately address the reasons

that the petitioner had for proceeding to trial, rendering

him unable to meaningfully weigh his options. We

disagree.

In the present case, our review of the record demonstrates that Ovian provided the petitioner with professional advice on the best course of action given the

facts of the petitioner’s case and also informed him of

the potential total sentence to which he was exposed.

See Barlow v. Commissioner of Correction, supra, 150

Conn. App. 800. While the petitioner may prefer that

we broaden this duty by requiring trial counsel to advise

their clients on the total sentence exposure they face for

each and every possible defense scenario, we decline

to adopt such a rule.

As the petitioner points out, both parties agree that

the evidence against the petitioner was overwhelming

and that it was highly unlikely that the petitioner could

have prevailed with respect to the charge of robbery

in the first degree. To be sure, the evidence at trial

included, inter alia, still photographs from the video

surveillance of the petitioner entering the bank and

writing a note, photographs of him approaching the

teller station with the piece of paper in hand, the slip

containing the petitioner’s written demand for money

and reference to a gun, testimony of the bank teller

explaining that she had written a description of the

petitioner on the back of the slip, and evidence that

the petitioner was apprehended with the proceeds of

the crime on him. In its memorandum of decision, the

habeas court found that Ovian had many discussions

with the petitioner throughout the course of his representation and discussed the strengths and weaknesses

of the state’s evidence with him. On the basis of his

assessment of the case, Ovian advised the petitioner to

accept each of the plea deals offered to him, informing

the petitioner that he was facing a maximum sentence
of forty-eight and one-half years if he proceeded to trial.

Although the petitioner was apprised of the evidence

against him and advised to accept each of the plea deals

offered, the record demonstrates that he held strong,

subjective, and unrealistic beliefs about his case. For

example, the habeas court found that the petitioner

believed he should be convicted only of robbery in the

third degree because he merely gave the bank teller a

note and did not hurt anyone; that he believed that five

years was a more reasonable sentence for his offense;

that the petitioner, at a judicial pretrial conference,

stated, ‘‘[s]ir, I apologize, to offend you all but I just

want you to know this is not a [r]obbery [first] and I

will be going to trial to prove it because I am not copping

out to this’’; that he believed that the maximum sentence

he could receive for robbery in the third degree was

five years; and that he rejected plea offers from the

state because he had faith the state might present him

with a more favorable offer.8 Despite counsel’s advice

to the petitioner to accept the plea offers, the petitioner

chose to proceed to trial where he attempted to prove

that his actions constituted only robbery in the third

degree.9

The petitioner acknowledges that he was ‘‘fully

advised’’ about the likelihood of being convicted on the

robbery in the first degree charge and the maximum

potential sentence that he likely faced, but instead,

focuses his argument on trial counsel’s lack of specific

advice on the maximum sentence he could have faced

if he had succeeded on the unlikely strategy of proving

that he only had committed robbery in the third degree.

In doing so, he argues that he was unable to meaningfully weigh his options on whether to proceed to trial

without understanding that the maximum sentence at

trial on a theory of robbery in the third degree would

be ‘‘at least as severe’’ or exceed the sentences of the

plea offers initially made to the petitioner. He asserts

that his ‘‘decision to proceed to trial was influenced

highly by trial counsel’s flawed advice’’ to him, characterizing his decision to reject the plea offers and proceed to trial as ‘‘irrational and suicidal given the

circumstances.’’ The petitioner’s argument, however,

completely ignores the adequate and accurate advice

Ovian did provide him. Ovian’s conversations with the

petitioner fully apprised him of the reality of his case.

Moreover, the court found that Ovian had many discussions with the petitioner throughout the course of his

representation, where Ovian properly explained the

state’s evidence to him, relayed the plea offers to him,

and informed him that he faced up to forty-eight and

a half years incarceration if he proceeded to trial. Given

the circumstances, Ovian advised the petitioner that

the plea offers from the state were desirable and that

he should accept them. See Vazquez v. Commissioner

of Correction, supra, 123 Conn. App. 437.
While the petitioner may now describe his decision

to proceed to trial as ‘‘suicidal,’’ that decision was his

alone to make. See Andrews v. Commissioner of Correction, 155 Conn. App. 548, 554, 110 A.3d 489 (‘‘[c]ounsel should not make the decision for the defendant or

in any way pressure the defendant to accept or reject the

offer’’ [internal quotation marks omitted]), cert. denied,

316 Conn. 911, 112 A.3d 174 (2015). From the beginning,

Ovian’s advice to him was unequivocal; he made clear

that the petitioner should be prepared for a conviction

on the charge of robbery in the first degree should he

choose to proceed to trial. And, as counsel had warned,

the petitioner was in fact convicted of robbery in the

first degree and sentenced to thirty-four years incarceration following his trial. Our case law requires that the

petitioner be given ‘‘adequate professional assistance,

advice, and input’’ from his counsel and be advised ‘‘on

the best course of action given the facts of [his] case

and the potential total sentence exposure.’’ (Emphasis

omitted.) Barlow v. Commissioner of Correction,

supra, 150 Conn. App. 800. On the basis of our review

of the record, we conclude that he was provided with

just that. We cannot say that Ovian’s failure to inform

the petitioner of the potential total sentence exposure

he faced if he succeeded on the unlikely theory of proving robbery in the third degree or his decision not to

further persuade the petitioner to accept the plea offers

constituted deficient performance. It also bears noting

that the petitioner has cited no relevant cases to support

his claim on appeal and presented no evidence at the

habeas trial to demonstrate that the prevailing professional norms in Connecticut made it necessary for

Ovian to advise the petitioner in the manner he argues.

As this court has noted before, trial counsel’s decision

on ‘‘how best to advise a client in order to avoid, on

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

coercing a plea enjoys a wide range of reasonableness

. . . .’’10 (Internal quotation marks omitted.) Peterson

v. Commissioner of Correction, 142 Conn. App. 267,

274, 67 A.3d 293 (2013).

The information and advice provided to the petitioner

by trial counsel was adequate for him to make an

informed decision as whether to accept the state’s plea

offers. See Melendez v. Commissioner of Correction,

151 Conn. App. 351, 359, 95 A.3d 551, cert. denied, 314

Conn. 914, 100 A.3d 405 (2014). Although the petitioner

claims he was entitled to further explanation about

the consequences of proceeding to trial, he has not

demonstrated, as required under the first prong of

Strickland, that trial counsel’s actual explanation and

advice fell below an objective standard of reasonableness under prevailing professional norms.11 See Strickland v. Washington, supra, 466 U.S. 687–88; Heredia

v. Commissioner of Correction, 106 Conn. App. 827,

836–37, 943 A.2d 1130, cert. denied, 287 Conn. 918, 951

A.2d 568 (2008).
We, therefore, conclude, after a thorough review of

the record, that the petitioner failed to establish that

the issue he raised is debatable among jurists of reason,

that a court could resolve it in a different manner, or

that the question he raised is adequate to deserve

encouragement to proceed further. Accordingly, we

conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

1 See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.

2d 694 (1966).

2 At the habeas trial, Ovian testified that the petitioner had taken a position

that the note recovered at the bank was not the note he had written and

handed to the teller. Ovian testified that it was the petitioner’s position that

the note he handed to the teller never indicated that he had a gun, and that

the teller had given him back the note prior to his running from the bank

and jumping into a river. Gedansky indicated that the petitioner had a theory

that the police had invented the note on which the state relied; Gedansky

described this as a ‘‘conspiracy theory.’’ Ovian also testified that he recalled

contacting a handwriting expert to see if his evaluation of the note could

give some support to the petitioner’s theory. Ovian testified that after the

handwriting analyst reviewed a copy of the note, the handwriting analyst

indicated to him that he thought it ‘‘would not be a good idea to call him

as a witness.’’

3 Gedansky testified that Ovian was able to persuade him to reduce his

initial offer of ten years to serve with five years special parole to ten years

to serve with two years special parole.

4 At the habeas trial, Ovian testified that he recalled there being a ‘‘specific

discussion of numbers’’ with the petitioner about his exposure if he was

found guilty of robbery in the first degree. He also testified that his notes

contained a chart showing that the total exposure the petitioner faced

was forty-eight and one-half years, which included the enhancements the

petitioner likely faced for committing a crime while he was out on bond

and for being a persistent felony offender. Ovian then testified that he could

not definitively say that he advised the petitioner on the maximum sentence

the petitioner faced if convicted on the lesser included offense of robbery

in third degree, but he indicated that he would not have led the petitioner

to believe that he would have avoided jail time, especially in light of the

conversations they had about the enhancements the petitioner faced.

The petitioner testified that Ovian did not tell him that he may receive a

sentence of thirty-four years. He also said that he did not think that Ovian

had brought to his attention the potential maximum sentence if he was

found guilty on all the charges. The petitioner indicated that had he known

that he was going to receive a thirty-four-year sentence, he would not have

gone to trial. Additionally, the petitioner testified that he was asking at trial

that he be found guilty of robbery in the third degree and felt that the

maximum sentence was five years; he testified that Ovian never told him

the maximum potential sentence for robbery in the third degree was twenty

years. He also testified, though, that he did not recall whether Ovian told

him that a five year sentence was a likely outcome.

5 The petitioner appears to predicate his claim of ineffective assistance

of counsel on both the sixth amendment to the United States constitution

and article first, §§ 8 and 9, of the Connecticut constitution. Because he has

not separately analyzed his state constitutional claim, we address only his

claim under the federal constitution. See e.g., Ham v. Commissioner of

Correction, 301 Conn. 697, 702 n.6, 23 A.3d 682, 686 (2011); State v. Melendez,

291 Conn. 693, 704 n.16, 970 A.2d 64, 72 (2009).

6 After filing this appeal, the petitioner filed a motion for articulation on

April 13, 2017, requesting that the habeas court articulate, inter alia, the

factual and legal bases for ‘‘whether counsel had a duty to advise the petitioner about his potential and realistic exposure after a trial where he

prevailed on his robbery in the third degree theory.’’ The habeas court denied

that motion on May 10, 2017, and pursuant to Practice Book § 66-7, the

petitioner filed a motion for review in this court challenging the habeas

court’s denial of his motion for articulation. On July 12, 2017, this court
granted review, but denied the relief requested.

In the petitioner’s appellate brief, he appears to renew the arguments he

made in his motion for review. He seems to suggest that the record is

inadequate for review because the habeas court did not address whether

trial counsel’s failure to advise the petitioner that ‘‘a conviction for robbery

in the third degree would very likely result in a sentence at least as high

as the offers by the prosecuting authority’’ constituted deficient performance. We disagree. It is evident from the habeas court’s well reasoned

decision that it determined that trial counsel’s failure to advise the petitioner

that a conviction of robbery in the third degree would likely result in a

sentence at least as high as the offers by the prosecuting authority did not

constitute deficient performance in light of the adequate advice that he did

provide the petitioner. Accordingly, we conclude that the record is adequate

for our review.

7 As previously noted, the petitioner took the position that the note he

handed to the teller never indicated that he had a gun, and that the teller

had given him back the note prior to his running from the bank. In his view,

the note on which the state relied was not the note he had written. As such,

it was his theory that because he never referenced a gun in the note that

he handed the teller, he could be found guilty only of robbery in the third

degree. Accordingly, after the petitioner declined to follow his counsel’s

advice to take the plea offers, Ovian pursued the petitioner’s preferred

theory at trial that called into question the authenticity of the note, which,

if the jury believed, would constitute only robbery in the third degree.

8 Ovian also testified at the habeas trial that the petitioner believed that

the plea deals offered by the state were too high given his poor health,

especially ‘‘for someone who might not make it.’’ Ovian noted that the

petitioner recently had a heart attack and felt like his ‘‘life was fleeting.’’

9 Ovian testified at the habeas trial that although he disagreed with the

petitioner’s decision to go to trial, he told him he would do his best to

represent him. Accordingly, Ovian decided to pursue a strategy that called

into question the authenticity of the note.

10 In fact, advising the petitioner of the consequence of a robbery in the

third degree conviction might only have encouraged his unfounded belief

that the state only could prove the lesser offense when the evidence of

robbery in the first degree was strong.

11 Because Ovian did not render deficient performance, we need not reach

the prejudice prong of the Strickland test. See Brunetti v. Commissioner

of Correction, 134 Conn. App. 160, 172 n.2, 37 A.3d 811, cert. denied, 305

Conn. 903, 44 A.3d 180 (2012).