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*********************************************** 
KENDALL SMITH v. COMMISSIONER

OF CORRECTION

(AC 44654)

Elgo, Cradle and Suarez, Js.

Syllabus

The petitioner, who had been found guilty of several crimes, following a

jury trial, and who had entered a plea of nolo contendere to a charge

of being a persistent serious felony offender in connection with his role

in an armed bank robbery, sought a writ of habeas corpus. The petitioner

and another perpetrator, each openly carrying a gun, had entered the

bank and taken money from the tellers’ drawers and the safes. The

petitioner claimed that his trial counsel, B, had rendered ineffective

assistance and that his plea of nolo contendere had not been knowing,

intelligent and voluntary. The habeas court denied the habeas petition,

concluding, inter alia, that B’s performance was not deficient and, thereafter, granted the petition for certification to appeal. Held:

1. The petitioner could not prevail on his claim that B provided ineffective

assistance by failing to request an instruction requiring the jury to find

that the firearm he used during the robbery was operable pursuant to

the applicable sentence enhancement statute (§ 53-202k) with respect

to the charges of robbery in the first degree and by failing to advise the

petitioner of the public interest element of the persistent serious felony

offender charge: the petitioner’s conduct in brandishing a gun as a show

of force during the robbery indicated to the victims that the gun could

have been fired and, thus, satisfied the statutory (§ 53a-3 (19)) definition

of a firearm and subjected him to sentence enhancement pursuant to

§ 53-202k; moreover, even if the jury instruction had been requested,

the trial court would have properly denied the request, thus, the petitioner could not prove prejudice; furthermore, the petitioner failed to

demonstrate that, but for B’s alleged deficient performance in failing to

advise him with respect to the public interest element of the charge of

being a persistent serious felony offender pursuant to statute ((Rev. to

2007) § 53a-40 (c)), he would not have entered a nolo contendere plea

with respect to that charge, as the plea canvass by the trial court reflected

that the petitioner affirmatively answered the court’s question as to

whether he and B had discussed the evidence the state had to support

the charge, it was reasonable for the habeas court to conclude that the

petitioner’s evidence at the habeas trial did not rebut the presumption

that B had explained the nature of the offense in sufficient detail to

give the petitioner notice of what he was being asked to admit, and the

habeas court found that the petitioner’s habeas testimony that he would

not have entered a plea of nolo contendere had B properly advised him

was not credible, as the petitioner had an extensive criminal history

and the state had a strong case favoring sentence enhancement.

2. The petitioner could not prevail on his claim that his plea of nolo contendere to the charge of being a persistent serious felony offender was not

knowing, intelligent and voluntary, as he failed to rebut the presumption

that B had informed him of the elements of the charge.

Argued April 4—officially released September 13, 2022

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, Bhatt, J.; judgment

denying the petition, from which the petitioner, on the

granting of certification, appealed to this court.

Affirmed.

Deren Manasevit, assigned counsel, for the appellant

(petitioner).
Denise B. Smoker, senior assistant state’s attorney,

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

state’s attorney, and Michael J. Proto, senior assistant

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

SUAREZ, J. The petitioner, Kendall Smith, appeals,

following the granting of his petition for certification

to appeal, from the judgment of the habeas court denying his sixth amended petition for a writ of habeas

corpus. The petitioner claims that the habeas court

improperly concluded that (1) he was not deprived of

his right to the effective assistance of counsel during

his underlying criminal trial and (2) he knowingly, intelligently, and voluntarily entered a plea of nolo contendere to a persistent serious felony offender charge. We

affirm the judgment of the habeas court.

The following facts, as found by the habeas court,

and procedural history are relevant to our resolution

of the petitioner’s claims. In 2010, following a jury trial,

the petitioner was found guilty of robbery in the first

degree in violation of General Statutes § 53a-134 (a) (4),

and conspiracy to commit robbery in the first degree

in violation of General Statutes §§ 53a-48 (a) and 53a134 (a) (4). The jury also found that the petitioner had

committed a class B felony with a firearm in violation

of General Statutes § 53-202k, a sentence enhancement

statute. The petitioner also entered a plea of nolo contendere to a charge brought in a part B information of

being a persistent serious felony offender under General

Statutes (Rev. to 2007) § 53a-40 (c).1 All of the charges

were related to the petitioner’s alleged participation in

an armed bank robbery with another perpetrator that

occurred on January 23, 2008, in Stafford Springs. Attorney Lawrence Bates represented the petitioner throughout the trial. On May 5, 2010, following the court’s acceptance of the jury’s verdict and the nolo contendere plea,

the court, Fuger, J., sentenced the petitioner to a total

effective term of fifty-five years of incarceration. The

judgment of conviction was upheld following the petitioner’s direct appeal to this court. State v. Smith, 156

Conn. App. 537, 113 A.3d 103, cert. denied, 317 Conn.

910, 115 A.3d 1106 (2015).2

On July 6, 2015, the petitioner, as a self-represented

litigant, filed a petition for a writ of habeas corpus.

Thereafter, the petitioner was appointed habeas counsel. Through counsel, the petitioner filed six amended

petitions, with the final amended petition being filed

on May 8, 2019. In the sixth amended petition, the petitioner alleged, inter alia, that he is illegally confined

because Attorney Bates’ performance did not meet ‘‘the

objective duty of competent representation for attorneys representing criminal defendants’’ and, but for his

deficient performance, the ‘‘result of petitioner’s criminal trial . . . would have been different and more

favorable to the petitioner.’’ Relevant to the present

appeal are the petitioner’s allegations that Attorney

Bates rendered ineffective representation with regard

to his enhanced sentence under § 53-202k, for having

committed a class B felony with a firearm, and his plea
of nolo contendere to the charge of being a persistent

serious felony offender.

Regarding the former allegation, the petitioner, raising a claim of ineffective assistance of counsel under

the state and federal constitutions, alleged that ‘‘counsel

failed to adequately research the legal issues presented

by this case, namely that he did not argue, brief or

request a proper jury charge concerning the requirement that the state must prove beyond a reasonable

doubt that the firearm used during the commission of

the robbery offense was operable . . . in order for the

court to enhance the petitioner’s sentence pursuant to

. . . § 53-202k . . . .’’ Regarding the latter allegation,

the petitioner, challenging his plea under the state and

federal constitutions, alleged that Attorney Bates’ representation was deficient with respect to the advice he

rendered as to the persistent serious felony offender

charge and, thus, in connection with his nolo contendere plea. The petitioner alleged that, as a result of the

deficient advice provided to him by Attorney Bates, he

did not knowingly, intelligently, and voluntarily enter

his nolo contendere plea, and that he ‘‘would not have

entered [the] plea to the charge of being a persistent

serious felony offender if he had known and understood

that, in order for his sentence to be enhanced as a

persistent serious felony offender, it was necessary for

the finder of fact to conclude that his extended incarceration would best serve the public interest.’’

Distinct from his claim of ineffective assistance of

counsel, the petitioner alleges that his confinement is

unlawful because he did not understand the ‘‘public

interest’’ element of the persistent serious felony

offender charge, that he did not knowingly, intelligently,

and voluntarily enter his plea of nolo contendere, and

that he would not have entered the plea ‘‘if he had

known and understood’’ the ‘‘public interest’’ element.3

The respondent, the Commissioner of Correction,

filed a return in which he either denied the substantive

allegations set forth in the petitioner’s sixth amended

petition or left the petitioner to his proof. With respect

to the petitioner’s claim that his nolo contendere plea

was not knowing, intelligent, and voluntary, the respondent raised the defense of procedural default. In his

reply, the petitioner alleged that, to the extent that his

claim concerning his nolo contendere plea is procedurally defaulted, cause and prejudice exists to overcome

the default.

The claims raised in the present appeal pertain only

to the habeas court’s rejection of the petitioner’s claims

that (1) he received ineffective assistance of counsel

because Attorney Bates did not request that the court

instruct the jury that, under § 53-202k, it must find that

the firearm used by him was operable, (2) he received

ineffective assistance of counsel because Attorney

Bates did not inform him that, under § 53a-40 (c), the
state would need to prove his extended incarceration

was in the public interest, and (3) he did not enter his

plea of nolo contendere knowingly, intelligently, and

voluntarily because he did not understand the ‘‘public

interest’’ element of § 53a-40 (c).

On May 14, 2019, the court, Bhatt, J., held a trial in

this matter. Relevant to the claims raised on appeal,

the petitioner presented testimony from himself and

Attorney Bates. The petitioner testified that, after he

was convicted of robbery and conspiracy to commit

robbery, Attorney Bates spoke to him about the persistent serious felony offender charge. The petitioner testified that, during this conversation, Attorney Bates did

not inform him that, for him to be found guilty of being

a persistent serious felony offender, the state would

need to prove that extending the petitioner’s incarceration was in the public interest.4 The petitioner further

testified that he would not have entered the plea of

nolo contendere if he had known that the state bore

the burden of proving this element of the offense.

Habeas counsel for the petitioner examined Attorney

Bates about his conversation with the petitioner after

the petitioner was found guilty on the charges of robbery and conspiracy to commit robbery. Attorney Bates

testified that, after the jury returned its verdict, he told

the petitioner that he had every right to proceed to trial

with respect to the persistent serious felony offender

charge, but the petitioner did not want to proceed to

trial with respect to that charge and elected to enter a

plea of nolo contendere.

The petitioner’s habeas counsel also examined Attorney Bates regarding the sentence enhancement statute,

§ 53-202k. Attorney Bates testified that he had

researched the statute and believed that it required the

jury to find that the firearm that the petitioner allegedly

used during the alleged bank robbery was, in fact, operable. At trial, however, Attorney Bates did not request

that the court instruct the jury that it must determine

whether or not the firearm was operable.

On February 11, 2021, in a memorandum of decision,

the court denied the petitioner’s sixth amended petition

for a writ of habeas corpus. With respect to the ineffective assistance of counsel claim related to Attorney

Bates’ failure to request a ‘‘firearm operability’’ instruction concerning § 53-202k, the court, after discussing

the text of § 53-202k and several appellate cases related

thereto, reasoned that there was no legal basis for the

jury instruction that the petitioner alleged should have

been requested at trial. Thus, the court determined that

Attorney Bates was not deficient for failing to request

the instruction at issue. The court also reasoned that

the petitioner could not prove that he was prejudiced

by Attorney Bates’ failure to request the instruction

because, ‘‘even if Bates had requested an instruction

[that the jury must find that the firearm was operable],
given our case law . . . the trial court would have been

. . . well within its discretion to deny such a request’’

because operability was not an element of the offense.

With respect to the ineffective assistance of counsel

claim related to Attorney Bates’ advice concerning the

persistent serious felony offender charge, the court

found that, ‘‘[w]hen [the petitioner] entered his plea to

being a persistent serious felony offender, the trial court

conducted a thorough and appropriate canvass including asking [the petitioner] if he had discussed his decision with his attorney and had sufficient time to do so

and whether his attorney had explained to him what

the state would have to prove. [The petitioner]

answered those questions in the affirmative and at no

point did he indicate that he did not understand the

charges or was being forced to plead or that Bates had

not explained the elements to him. It is well established

that the canvassing court can rely on a defendant’s

responses during a plea canvass. . . . The court found

the plea to be knowing, voluntary, and made with advice

of competent counsel. Thus, this court can infer that

Bates did discuss with [the petitioner] the elements of

the offense and the state’s evidence. There is no deficient performance. Even assuming that Bates’ performance was deficient, [the petitioner’s] habeas testimony that he would not have entered a plea of nolo

contendere had Bates properly advised him is not credible.’’ (Citations omitted.)

The court also denied the petitioner’s related claim

that his plea of nolo contendere was invalid because

he did not understand that, under § 53a-40 (c), the state

bore the burden of proving that his extended incarceration would best serve the public interest. The court

reiterated that, in his ineffective assistance of counsel

claim concerning this issue, the petitioner was unable

to demonstrate that Attorney Bates rendered deficient

performance or that he had been prejudiced thereby.

The court reiterated that it did not find the petitioner’s

testimony credible insofar as he testified that he would

not have pleaded nolo contendere if he had been

advised of the public interest requirement and concluded that the petitioner had not demonstrated that

his plea was not knowing, intelligent, and voluntary in

nature.5

On March 4, 2021, the court granted the petitioner’s

petition for certification to appeal. This appeal followed. Additional facts and procedural history will be

set forth as necessary.

I

First, the petitioner claims that the court erred by

concluding that he was not deprived of his right to the

effective assistance of counsel during his criminal trial.

‘‘Our standard of review of a habeas court’s judgment

on ineffective assistance of counsel claims is well set-
tled. 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. . . . 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. . . .

‘‘A claim of ineffective assistance of counsel is governed by the two-pronged test set forth in Strickland

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

2d 674 (1984). Under Strickland, the petitioner has the

burden of demonstrating that (1) counsel’s representation fell below an objective standard of reasonableness,

and (2) counsel’s deficient performance prejudiced the

defense because there was a reasonable probability

that the outcome of the proceedings would have been

different had it not been for the deficient performance. . . .

‘‘In order to prevail on a claim of ineffective assistance of counsel, the petitioner must establish both

prongs of the Strickland test. . . . [A] habeas court

may dismiss the petitioner’s claim if he fails to satisfy

either prong. . . . Accordingly, a court need not determine the deficiency of counsel’s performance if consideration of the prejudice prong will be dispositive of

the ineffectiveness claim.’’ (Citations omitted; internal

quotation marks omitted.) Sewell v. Commissioner of

Correction, 168 Conn. App. 735, 741–42, 147 A.3d 196

(2016), cert. denied, 324 Conn. 907, 152 A.3d 1245

(2017).

In this first claim raised on appeal, the petitioner

asserts that the court erred in concluding that Attorney

Bates was not ineffective for failing (1) to request an

instruction requiring the jury to find the firearm he used

during the bank robbery was operable under § 53-202k

and (2) to advise the petitioner of the ‘‘public interest’’

element of the persistent serious felony offender

charge. We are not persuaded with respect to either

argument.

A

We first address the petitioner’s claim that Attorney

Bates rendered deficient performance by failing to

request that the jury be instructed about operability for

purposes of § 53-202k.6

Relevant to this claim, we note the following additional facts detailing the manner in which the bank

robbery occurred, as set forth in this court’s opinion

affirming the judgment of conviction: ‘‘On January 23,

2008, at approximately 11:45 a.m., two men entered the

front door of the Workers’ Federal Credit Union in

Stafford Springs wearing ski masks, gloves and dark

clothing. The first man to enter, while carrying a gun
in his left hand, jumped over the counter into the teller

area, where three tellers were then working. He ordered

the tellers to put up their hands and asked them where

the money was. After taking the money from the tellers’

cash drawers and putting it in a bag, the man jumped

back over the counter into the lobby area of the bank.

‘‘While the first man was taking money from the tellers’ cash drawers, the second man, who also was carrying a gun, ran toward the back of the bank to the desk

of Stacey Fisher, another bank employee. On reaching

Fisher’s desk, the second man forced her at gunpoint

to lead him into the vault area behind her so he could

access the bank’s safes. As the first man jumped back

over the counter into the lobby area, the second man

emerged from the vault area carrying four or five cash

drawers from one of the bank’s two safes. Upon meeting

near the front door of the bank, the two men exited

and got into a small or medium sized, silver or light

colored car that had been parked in front of the building.’’ (Footnote omitted.) State v. Smith, supra, 156

Conn. App. 541–42.

In his appellate brief, the petitioner asserts that

‘‘Bates correctly understood that § 53-202k requires

proof [that] the firearm justifying application of the

enhancement was capable of firing a shot, and his failure to seek an instruction on operability was both deficient and prejudicial. The habeas court’s analysis of

this issue was incorrect and therefore does not support

a conclusion that Bates’ representation was adequate.’’

(Emphasis added.) The petitioner also argues that the

statute is ambiguous because it states that the sentence

enhancement statute applies when a person who commits a felony ‘‘represents by his words or conduct that

he possesses any firearm as defined in section 53a-3

. . . .’’ General Statutes § 53-202k. The petitioner

argues that the phrase ‘‘represents by his words or

conduct that he possesses any firearm’’ appears to contradict the legislative requirement that the firearm fall

under the definition set forth in § 53a-3 and, thus, gives

rise to a statutory ambiguity that necessitates the use

of extratextual sources to resolve. From here, the petitioner urges that the statute be interpreted on the basis

of the legislative history that, in his view, suggests that

operability is an essential element of the sentence

enhancement statute. We need not engage in a statutory

interpretation analysis to resolve the petitioner’s claim

because § 53-202k has been the subject of prior judicial

interpretation and that interpretation resolves the issue

before us.

The relevant portion of § 53-202k provides: ‘‘Any person who commits any class A, B or C felony and in the

commission of such felony uses, or is armed with and

threatens the use of, or displays, or represents by his

words or conduct that he possesses any firearm, as

defined in section 53a-3 . . . shall be imprisoned for
a term of five years, which shall not be suspended or

reduced and shall be in addition and consecutive to

any term of imprisonment imposed for conviction of

such felony.’’ General Statutes § 53-202k. ‘‘There are

two elements to § 53-202k. The first element is that the

defendant has committed a class A, B or C felony. . . .

The second element of § 53-202k is that the defendant

used, was armed with and threatened the use of, displayed, or represented by his words that he possessed

a firearm as ‘firearm’ is defined in [General Statutes]

§ 53a-3 (19).’’ State v. Brown, 259 Conn. 799, 807–808,

792 A.2d 86 (2002). Section 53a-3 (19) defines a ‘‘ ‘[f]irearm’ ’’ as ‘‘any sawed-off shotgun, machine gun, rifle,

shotgun, pistol, revolver or other weapon, whether

loaded or unloaded from which a shot may be discharged.’’

Our Supreme Court’s reasoning in State v. Brown,

supra, 259 Conn. 799, is particularly relevant to our

analysis of the present claim. In Brown, the defendant

was convicted of robbery in the first degree in violation

of §§ 53a-8 and 53a-134 (a) (4), conspiracy to commit

robbery in the first degree in violation of §§ 53a-48 (a)

and 53a-134 (a) (4), and larceny in the second degree

in violation of General Statutes §§ 53a-8 and 53a-123

(a) (3). Id., 801. The jury also found that the defendant

was subject to an enhanced penalty under § 53-202k

because he had used a firearm in the commission of

the crime. Id., 805. The jury reasonably could have found

that the defendant stole the victim’s car after robbing

the victim at gunpoint. Id., 802–803. A second armed

individual, who drove the defendant to the victim’s location, told the defendant to ‘‘ ‘[j]ust pop him.’ ’’ Id., 803.

Recognizing this as an instruction to shoot the victim,

the victim implored the defendant to let him go. Id. The

defendant told the victim to walk away and not look

back. Id. As the victim walked away, however, he looked

back at the defendant. Id. The defendant then threatened the victim, saying, ‘‘ ‘Do you want to get shot

. . . .’ ’’ Id. The defendant did not shoot the victim, but

he left the scene in the victim’s automobile. Id.

In Brown, the defendant challenged the enhanced

penalty imposed on him under § 53-202k. Id., 800–801.

After this court affirmed the judgment of conviction,

our Supreme Court granted certification limited to the

question of ‘‘whether the trial court was required to

define the term ‘firearm’ when instructing the jury on

the sentence enhancement provision of § 53-202k.’’ Id.,

805. The defendant argued that the court’s failure to

instruct the jury on the definition of a firearm under

§ 53a-3 (19) rendered the jury instruction constitutionally defective. Id., 808. In particular, the defendant

focused on the trial court’s failure to instruct the jury,

in accordance with § 53a-3 (19), that the state was

required to prove that the gun that the defendant used

in the robbery was capable of discharging a shot. Id.,

809. The state argued that the instruction concerning
operability was not necessary and the defendant was

subject to the enhancement of his sentence because

the evidence demonstrated that he had represented by

his words and conduct that the weapon he used during

the robbery was capable of discharging a shot. Id.

In rejecting the defendant’s claim, the court in Brown

explained, ‘‘We conclude that the state was not required

to prove that the gun held by the defendant was capable

of discharging a shot. First, the statements by the defendant and the second perpetrator relative to shooting

the victim were representations that the gun in the

defendant’s hand could be fired, and therefore representations that the gun was a firearm as defined by statute.

Because of those representations, the jury properly

could have applied § 53-202k without the state having

proved that the gun could be fired. Second, the sentence

enhancement provision properly may be applied to the

defendant because we do not distinguish between the

principal and an accessory when applying the sentence

enhancement provision for the use of a firearm in the

commission of a crime. . . . In the present case, the

second perpetrator fired several shots at the police

during the foot chase, which establishes that he used

a weapon from which a shot could be discharged. The

second perpetrator’s gun, therefore, satisfied the statutory definition of a firearm and both the second perpetrator and the defendant are subject to sentence

enhancement under § 53-202k because the second perpetrator ‘use[d], or [was] armed with and threaten[ed]

the use of, or display[ed]’ a firearm. Accordingly, we

conclude that the defendant’s claim fails . . . .’’ (Citation omitted; footnote omitted.) Id., 810–11. The court

also stated, ‘‘Not only did the defendant in the present

case specifically represent that he had a gun, but his

statement and that of the second perpetrator also represented that the gun held by the defendant could be

fired. Such explicit representations that a gun is capable

of firing a shot, however, may not always be necessary

in order to apply the sentence enhancement provision

of § 53-202k. It may be that brandishing a gun as a show

of force during a crime indicates to the victim that the

gun may be fired and therefore satisfies the statutory

definition of a firearm and subjects a defendant to sentence enhancement. That is not the question before us

in this case, however, and we leave it for a later time.’’

Id., 810 n.11.

We conclude that the facts of this case are similar

to those in Brown and, therefore, that the analysis in

Brown controls our disposition of the petitioner’s claim.

Like the defendant in Brown, the petitioner represented

that his firearm was capable of firing a shot. The petitioner and his coconspirator pointed their guns at the

bank tellers and ordered them to locate the money in

the credit union and lead one of the perpetrators to the

vault. State v. Smith, supra, 156 Conn. App. 541. The

petitioner’s use of a gun to force the bank tellers to
assist him during the robbery represented to the tellers

that the gun could be fired. Although the petitioner did

not make the type of explicit representations concerning the operability of his gun that were present in

Brown, we are satisfied that his conduct in brandishing

his gun as a show of force during the bank robbery

indicated to the victims that the gun could have been

fired. Thus, we are satisfied that the petitioner’s conduct

satisfies the statutory definition of a firearm and subjected him to sentence enhancement pursuant to

§ 53-202k.

Noting the habeas court’s reliance on Brown,

7

the

petitioner argues that State v. Grant, 294 Conn. 151,

982 A.2d 169 (2009), and State v. Velasco, 253 Conn.

210, 751 A.2d 800 (2000), contravene Brown and suggest

that the jury should have been instructed on operability

in the present case. For the reasons that follow, we

disagree with the petitioner’s interpretation of these

cases.

In Grant, our Supreme Court considered whether a

BB gun was a ‘‘firearm’’ as defined in § 53a-3 (19) for the

purpose of deciding whether a defendant was properly

charged under § 53-202k with using a firearm in the

commission of a felony. State v. Grant, supra, 294 Conn.

156–57. Contrary to the petitioner’s assertion, this analysis did not require that operability be proven for § 53-

202k to apply. The question of whether the BB gun was

a ‘‘firearm’’ was salient to determining if the defendant

used a firearm in committing a felony. Id., 157. The

analysis did not concern whether the operability of a

firearm was relevant in the context of a person committing a felony while representing he possesses an operable firearm, as was the case in Brown. See id., 156. In

our view, Grant has no effect on the court’s holding in

Brown that operability need not be proven when a

defendant represents that he possesses an operable

firearm. The petitioner’s reliance on Grant is, therefore,

misplaced.

In State v. Velasco, supra, 253 Conn. 212, our Supreme

Court addressed whether § 53-202k permits the court,

rather than the jury, to find that a defendant used a

firearm in the commission of a felony. The defendant

in Velasco was found guilty of two counts of felony

murder in violation of General Statutes § 53a-54c, and

conspiracy to commit robbery in the first degree in

violation of §§ 53a-48 (a) and 53a-134 (a) (3). Id., 217.

When sentenced, the trial court applied § 53-202k after

determining that, on the basis of the evidence at trial,

the state proved beyond a reasonable doubt the defendant had committed the underlying felony with a firearm. Id. On appeal, our Supreme Court vacated the

sentence enhancement imposed under § 53-202k after

concluding that the question of whether the accused

used a proscribed firearm in the commission of a felony

must be decided by the jury, not the court. Id., 214. In
the present case, the jury was asked by interrogatory

whether the petitioner had used a firearm in the commission of a felony. The court did not make that finding

in place of the jury and, contrary to the petitioner’s

arguments, § 53-202k was not ‘‘automatically’’ applied

in this case simply because the petitioner committed a

violation of a felony, § 53a-134 (a) (4). Accordingly,

we fail to see how Velasco supports the petitioner’s

assertion that an instruction on operability was warranted in the present case. For the foregoing reasons,

we are persuaded that the court correctly relied on

Brown in concluding that the petitioner failed to prove

that trial counsel’s failure to request an instruction on

operability constituted deficient performance.

For the foregoing reasons, we also agree with the

habeas court that, even if Attorney Bates was deficient

in failing to seek an instruction on operability, the petitioner cannot prove prejudice. Under Brown, even if

the jury instruction had been requested, the trial court

would have properly denied the request. Accordingly,

the court did not err in rejecting the petitioner’s claim

that counsel was ineffective for failing to request jury

instructions on operability.

B

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

improperly concluded that Attorney Bates did not render effective representation because he failed to inform

him of the ‘‘public interest’’ element of the persistent

serious felony offender charge. We conclude that the

court properly determined that the petitioner failed to

demonstrate that Attorney Bates did not advise him of

the essential elements of the offense.

We note the general proposition that, ‘‘even without

an express statement by the court of the elements of

the crimes charged, it is appropriate to presume that

in most cases defense counsel routinely explain the

nature of the offense in sufficient detail to give the

accused notice of what he is being asked to admit. . . .

[U]nless a record contains some positive suggestion

that the defendant’s attorney had not informed the

defendant of the elements of the crimes to which he

was pleading guilty, the normal presumption applies.’’

(Citations omitted; internal quotation marks omitted.)

State v.Reid, 277 Conn. 764, 783–84, 894 A.2d 963 (2006).

On careful examination of the record, we find support

for the court’s determination that Attorney Bates had

informed the petitioner of the elements of the persistent

serious felony offender charge. Initially, we observe

that the habeas court reviewed the transcript of the

canvass that the trial court conducted concerning the

petitioner’s nolo contendere plea. The plea canvass

reflects that the petitioner affirmatively answered the

court’s question as to whether he and his counsel discussed the evidence the state had to show to support
the charge. The following examination occurred during

the canvass:

‘‘The Court: Have you had enough time to talk with

your attorney about your case and decision to enter a

plea of nolo contendere to this part B information?

‘‘[The Petitioner]: Yes.

‘‘The Court: Have you also specifically discussed with

your attorney the evidence that the state claims it has

to show that you were involved in this matter, that

there’s evidence to support the [charge set forth in] the

part B [information]?

‘‘[The Petitioner]: Yes.’’

Later in the canvass, the petitioner responded affirmatively when the court asked him if he was ‘‘fully satisfied’’ with the representation provided to him by Attorney Bates.

On the basis of the petitioner’s answers to the court’s

inquiry, the court reasonably could have presumed that

trial counsel explained the nature of the offense in

sufficient detail to give the petitioner notice of what he

was being asked to admit. We note that the defendant

pleaded nolo contendere pursuant to an information

that explicitly listed § 53a-40 (c) as the governing statute, and he entered his plea in direct response to being

asked for his plea on the charge of being ‘‘a persistent

serious felony offender.’’ Although the court did not

refer to the state’s burden of proving that sentence

enhancement was in the public interest, there is no

finding or allegation that the court’s canvass of the

petitioner was inadequate. It is well settled that ‘‘[a] trial

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

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

court’s plea canvass, in determining that he was adequately informed of the elements of the offense

charged.’’ (Internal quotation marks omitted.) State v.

Lage, 141 Conn. App. 510, 520, 61 A.3d 581 (2013).

The petitioner contends that Attorney Bates’ testimony at the habeas trial reflects that the petitioner was

not informed of the essential elements of the offense.

Specifically, the petitioner relies on the examination

and cross-examination of Attorney Bates regarding one

conversation he had with the petitioner after the jury

returned its verdict finding the petitioner guilty of robbery and conspiracy to commit robbery. The following

colloquy between the petitioner’s counsel and Attorney

Bates occurred:

‘‘[Attorney Bates]: [A]t the end of the first part of the

trial where there was a guilty finding and there was an

opportunity to fight the . . . [persistent serious felony

offender charge], I told . . . [the petitioner] he had

every right to have it and that we could argue. He said

I don’t want to argue it, I’m all done.

‘‘[The Petitioner’s Counsel]: What did you tell him
that you could argue?

‘‘[Attorney Bates]: I didn’t. We didn’t get any further

than what I just said to you.

‘‘[The Petitioner’s Counsel]: Did you tell him whether

or not he had a defense?

‘‘[Attorney Bates]: I told you what I said to him, that

we could argue the point. And he said I’m through.

‘‘[The Petitioner’s Counsel]: And that was the entire

extent of the conversation?

‘‘[Attorney Bates]: Yes.’’

The petitioner also relies on the following exchange

that occurred during the respondent’s cross-examination of Attorney Bates:

‘‘[The Respondent’s Counsel]: You thought [in regard

to the persistent serious felony offender charge] it

would’ve been easily proven that his extended incarceration was in the public interest. Would you agree?

‘‘[Attorney Bates]: Yes.

‘‘[The Respondent’s Counsel]: And [the petitioner]

understood that as well.

‘‘[Attorney Bates]: I don’t know the—I’m not sure

about that.’’

The petitioner urges us to interpret this testimony to

suggest that at no point during his representation of

the petitioner, did Attorney Bates advise him of the

elements of the offense. However, Bates’ testimony,

quoted previously, described a conversation with the

petitioner at a specific point in time. It was limited to

what Bates told the petitioner after the jury found him

guilty of the underlying offense. Bates’ testimony did

not suggest that he had not explained the elements of

the offense prior to the finding of guilt. Attorney Bates’

testimony does not suggest that the petitioner was never

informed of the elements of the charge. It was not

unreasonable for the court to conclude that the petitioner’s evidence at the habeas trial did not rebut the presumption that Attorney Bates had explained the nature

of the offense in sufficient detail to give the petitioner

notice of what he was being asked to admit.8 Accordingly, the habeas court did not err in denying the petitioner’s claim after finding that counsel had informed

the petitioner of the elements of the persistent serious

felony offender charge.

Under Strickland, our conclusion that the petitioner

has not proven deficient performance is a sufficient

basis on which to reject the present claim of ineffective

representation. See Sewell v. Commissioner of Correction, supra, 168 Conn. App. 742. However, we conclude

that the petitioner’s claim also fails because he has

failed to demonstrate that, even if he was not advised

with respect to and was unaware of the public interest
element, he would not have entered the nolo contendere

plea. The court, in analyzing the prejudice prong of

Strickland, made the critical finding that, ‘‘[e]ven

assuming that [Attorney] Bates’ performance was deficient, [the petitioner’s] habeas testimony, that he would

not have entered a plea of nolo contendere had [Attorney Bates] properly advised him, is not credible.’’

(Emphasis added.) As we have stated previously in this

opinion, it is not the role of this court to second-guess

the credibility determinations made by the trial court.

See Sewell v. Commissioner of Correction, supra, 741;

see also David P. v. Commissioner of Correction, 167

Conn. App. 455, 470, 143 A.3d 1158 (reviewing court

must defer to credibility assessment of trial court based

on its firsthand observation of conduct, demeanor, and

attitude of witness), cert. denied, 323 Conn. 921, 150

A.3d 1150 (2016). Also, the court, observing that the

present claim did not involve the rejection of a plea

offer but a decision to enter a nolo contendere plea,

also noted that the state had a strong case favoring

sentence enhancement and that the petitioner ‘‘[had]

presented no evidence that the state would have been

unable to show that he needed to be incarcerated for

an extended period of time.’’9 Like the habeas court,

we conclude that the petitioner’s extensive criminal

history undermines his argument that, being properly

advised with respect to the persistent serious felony

offender charge, he would have elected to exercise his

right to a trial. For the foregoing reasons, in our plenary

review of the issue of prejudice, we conclude, as did the

habeas court, that the petitioner has not demonstrated

that, but for the alleged deficiency of Attorney Bates, he

would not have pleaded nolo contendere with respect

to the part B information.

II

Next, the petitioner claims that his plea of nolo contendere was not knowing, intelligent, and voluntary. We

are not persuaded by this claim.

We begin by setting forth the relevant legal principles

that guide our analysis of the petitioner’s claim. ‘‘The

underlying historical facts found by the habeas court

may not be disturbed unless the findings were clearly

erroneous. . . . Historical facts constitute a recital of

external events and the credibility of their narrators.

. . . Questions of law and mixed questions of law and

fact receive plenary review.’’ (Internal quotation marks

omitted.) Crawford v. Commissioner of Correction,

294 Conn. 165, 174, 982 A.2d 620 (2009). ‘‘The application of the habeas court’s factual findings to the pertinent legal standard . . . presents a mixed question of

law and fact . . . .’’ Duperry v. Solnit, 261 Conn. 309,

335, 803 A.2d 287 (2002).

‘‘The constitutional stricture that a plea of guilty must

be made knowingly and voluntarily . . . requires not

only that there be a voluntary waiver during a plea
canvass of the right to a jury trial, the right of confrontation and the right against self-incrimination, but also

that the defendant must be aware of and have an understanding of all of the elements of the crime or crimes

with which he is charged . . . . [T]he plea could not be

voluntary in the sense that it constituted an intelligent

admission that he committed the offense unless the

defendant received real notice of the true nature of

the charge against him, the first and most universally

recognized requirement of due process.’’ (Citations

omitted; internal quotation marks omitted.) State v.

Hackett, 16 Conn. App. 601, 602, 548 A.2d 16 (1988).

In support of the present claim, the petitioner relies

on the factual premise that underlies the claim that we

addressed in part I B of this opinion, specifically, that

Attorney Bates failed to inform him of the elements

of the persistent serious felony offender charge. The

petitioner further argues that, because he did not know

the elements of the charge, his plea of nolo contendere

was not knowing, intelligent, and voluntary.

As the habeas court found, and we have addressed

in part I B of this opinion, the petitioner did not rebut

the presumption that counsel informed him of the elements of the charge. Therefore, we agree with the

habeas court that this claim fails on its merits.

The judgment is affirmed.

In this opinion the other judges concurred.

1 All references in this opinion to § 53a-40 (c) are to the 2007 revision of

the statute.

2 The facts of the underlying conviction are set forth in this court’s opinion

affirming the judgment of conviction. Although it is not necessary to repeat

those facts in their entirety here, we will set forth relevant facts as necessary

in the context of the claims raised in this appeal.

3

In his habeas petition, the petitioner, relying on the state and federal

constitutions, also alleged violations of the right to due process and a fair

trial as a result of the state’s presentation of false testimony and the court’s

admission of false testimony, a violation of the right to the effective assistance of appellate counsel, and a violation of the right to nonconflicted trial

counsel. The habeas court denied each of these claims. The petitioner does

not raise claims of error related to these aspects of the habeas court’s decision.

4 The petitioner testified that Attorney Bates advised him that he should

plea nolo contendere to the charge because ‘‘all [the state] had to show

[was] that [he] had been convicted three times’’ and that there was nothing

the petitioner could do to refute the charge.

5 The court did not address the respondent’s claim of procedural default

with respect to this count of the sixth amended petition, noting that, regardless of whether this claim was procedurally defaulted, the petitioner’s claim

failed on its merits.

6 General Statutes § 53-202k provides: ‘‘Any person who commits any class

A, B or C felony and in the commission of such felony uses, or is armed

with and threatens the use of, or displays, or represents by his words or

conduct that he possesses any firearm, as defined in section 53a-3, except

an assault weapon, as defined in section 53-202a, shall be imprisoned for a

term of five years, which shall not be suspended or reduced and shall

be in addition and consecutive to any term of imprisonment imposed for

conviction of such felony.’’

7 We note that the habeas court also relied on State v. Tinsley, 47 Conn.

App. 716, 720, 706 A.2d 1008, cert. denied, 244 Conn. 915, 713 A.2d 833

(1998), in which this court similarly rejected a claim that a defendant should

not be subject to the enhanced penalty under § 53-202k because the evidence

did not establish that he used or was armed with a firearm during the
commission of the crime. In rejecting the claim, this court stated: ‘‘The

defendant . . . claims that § 53-202k applies only after it is established that

in the commission of the underlying felony for which the defendant was

convicted, the weapon used was proven capable of discharging a shot. It

has already been established that a guilty verdict under § 53a-134 (a) (4)

does not require proof of operability [of the gun]. A conviction can result

whether or not the defendant possessed a gun. All that is required is that

the defendant displays or threatens the use of what he represents by his

words or conduct to be a [gun]. . . . To conclude otherwise would render

this statutory provision inapplicable in situations where weapons cannot

be recovered or where a defendant represents to have a gun but, in fact,

does not. Certainly, the legislature did not intend to omit those frequently

occurring scenarios from sentence enhancement.’’ (Citation omitted; internal quotation marks omitted.) Id., 721–22.

8

In a similar case, State v. Reynolds, 126 Conn. App. 291, 11 A.3d 198

(2011), this court considered whether a defendant had validly waived his

right to a jury determination of his guilt under a part B information. The

defendant in Reynolds, like the petitioner in the present case, attempted to

demonstrate that he did not understand that the state bore the burden of

demonstrating that an extended period of incarceration was in the public

interest. Id., 297. In rejecting the claim, this court observed that a trial

court may presume that the defendant’s standby counsel had reviewed the

elements necessary to enhance the defendant’s sentence with the defendant,

and that the defendant had not rebutted that presumption ‘‘by offering

evidence that standby counsel could not later remember the content of her

advice.’’ Id., 305.

9 Specifically, the court stated: ‘‘The state needed to prove that [the petitioner] stands convicted of a felony, was previously convicted of and imprisoned for a felony, and that extended incarceration would best serve the

public interest. . . . All three of these elements are easily satisfied. [The

petitioner’s] criminal record encompassed no fewer than twenty-three convictions involving firearms. These convictions included five robberies,

including one in Massachusetts committed after the Stafford Springs credit

union robbery. Seventeen of the twenty-three convictions were for felonies.

. . . The sentencing court noted that [the petitioner] was a career, violent

criminal offender with numerous convictions for serious crimes of violence

in his past. That court further noted that [the petitioner’s] repeated acts of

criminality demonstrated his total inability and total lack of desire to be a

law-abiding member of society, thereby forfeiting his right to freedom. The

sentencing court then emphasized that, in its view, [the petitioner] should

never be at freedom again in our society and should never be considered

for parole or early release.’’ (Citation omitted; footnote omitted.)