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STATE OF CONNECTICUT v. DARDIAN CELAJ

(AC 37291)

Gruendel, Prescott and Bear, Js.

Argued January 7—officially released March 15, 2016

(Appeal from Superior Court, judicial district of

Ansonia-Milford, Markle, J. [trial]; Iannotti, J.; [plea;

motion to vacate plea; judgment].)

Stephan E. Seeger, with whom, on the brief, was Igor

Kuperman, for the appellant (defendant).

Rita M. Shair, senior assistant state’s attorney, with

whom was Kevin D. Lawlor, state’s attorney, for the

appellee (state).
Opinion

GRUENDEL, J. The defendant, DardianCelaj, appeals

from the judgment of the trial court denying his motion

to vacate his guilty plea. He claims that the court abused

its discretion in so doing. We affirm the judgment of

the trial court.

The defendant is an Albanian national who sexually

assaulted an employee of a nightclub he owned in Derby

on March 2, 2012.1 The following day, he was arrested

and charged with three counts of sexual assault in the

first degree in violation of General Statutes § 53a-70 (a)

(1)2 and one count of unlawful restraint in the first

degree in violation of General Statutes § 53a-95 (a). The

defendant pleaded not guilty to the charges. Over the

next two years, the defendant rejected multiple plea

offers from the state.

A court trial commenced on April 22, 2014. Following

the testimony of two police officers and the complainant, the defendant conferred with his trial counsel,

Attorney Donald J. Cretella, Jr., during a recess. In light

of the complainant’s testimony, Cretella advised the

defendant to accept a plea agreement offered by the

state. Shortly thereafter, the defendant did exactly that,

pleading guilty to one count of sexual assault in the

first degree pursuant to the Alford doctrine.3

At the plea hearing, the court canvassed the defendant concerning his plea. During that canvass, the

defendant indicated that he had ‘‘understood all the

conversations’’ with Cretella that led up to his decision

to plead guilty, and that he was satisfied with Cretella’s

advice. The defendant further acknowledged that he

had not been forced to enter his plea by anyone and

that the rationale for his plea was to avert a more severe

sentence. With respect to possible immigration consequences stemming from his plea, the court stated: ‘‘Do

you understand if you are not a citizen of the United

States, the plea of guilty could result in deportation or

removal from the United States, exclusion from admission to the United States, and denial of naturalization

pursuant to the laws of the United States? Do you understand that, sir?’’ The defendant responded affirmatively.

The court then asked Cretella if he had discussed ‘‘all

that’’ with the defendant; Cretella replied, ‘‘We have,

Your Honor.’’ Following the canvass, the court accepted

the defendant’s plea as ‘‘knowingly and voluntarily

made with the assistance of competent counsel . . . .’’

On July 25, 2014, the defendant, now represented by

Attorney Stephan E. Seeger, filed a motion to vacate

his guilty plea. In that motion, the defendant argued

that Cretella had failed to properly advise him of the

immigration consequences of the plea. Specifically, he

alleged that Cretella rendered ineffective assistance of

counsel by advising him that any ‘‘immigration consequences would not be automatic’’ and that he ‘‘had no
immediate danger of being deported’’ as a result of

his plea. The defendant thus maintained that he ‘‘was

affirmatively misadvised, and did not enter his plea

knowingly, intelligently, and voluntarily.’’

The defendant appeared before the court on September 22, 2014, for sentencing. At the outset of that proceeding, the court first conducted an evidentiary

hearing on the defendant’s motion to vacate his guilty

plea. The only witness who testified at that hearing was

the defendant, who stated that, at the time he entered

his plea, his ‘‘understanding was that there [were] no

consequences as far as immigration is concerned

. . . .’’ The defendant acknowledged that he had multiple conversations with Cretella over a span of two years

regarding various plea offers by the state. The defendant

further testified that ‘‘[e]very time we met, since the

first time,’’ he discussed the possibility of deportation

with Cretella. The defendant also admitted that he was

a six time convicted felon who had prior experience

with plea canvasses.4 With respect to notice that a plea

of guilty could result in possible deportation, the defendant testified that ‘‘every time I have come in [to court,

I was told that there is a] possibility for deportation. I

have heard that over and over, yes.’’5

During cross-examination, the defendant was asked

why he did not raise any objection at the April 22, 2014

plea hearing when Cretella stated to the court that he

had discussed the immigration consequences of the plea

with him. The defendant answered that he was not in

the right state of mind at that time. Although he testified

that he was ‘‘very nervous [and] very confused’’ during

the plea canvass, the defendant acknowledged that he

never informed the court of his alleged confusion. The

defendant also claimed that he had no recollection of

the court asking Cretella if he had discussed the immigration consequences of the plea with the defendant.

In ruling on the defendant’s motion, the court

described the defendant’s testimony as ‘‘selective’’ and

stated, ‘‘I specifically find it not to be credible.’’ The

court further stated that ‘‘the canvass by the court was

complete, the questions were all asked by the court,

but, more importantly, the questions by the court that

were asked of counsel, if he did his due diligence with

regard to advising his client were asked and answered

and were . . . uncontroverted by [the defendant], he

asked for no time out. He did not indicate that he did

not understand anything. He did not point out that . . .

Cretella did not advise him of anything that was necessary to be advised of. He answered all the questions in

the affirmative . . . with regard to the issue of his time

and ability in understanding the conversations that he

had with . . . Cretella that led up to his full conclusion

to plead guilty to the case.’’ The court also found that

‘‘the obligation of . . . Cretella was . . . clearly met

to me by way of the answers to the question[s] on the
canvass. . . . [F]or the issue of vacating a plea, based

upon the canvass and . . . the noncredible testimony

that this court heard today . . . this would not be the

appropriate forum for the court . . . to have this plea

vacated.’’ Accordingly, the court denied the motion to

vacate the guilty plea and thereafter sentenced the

defendant to a term of fourteen years incarceration,

with a mandatory minimum of two years, and six years

of special parole subject to special conditions. This

appeal followed.

On appeal, the defendant claims that the court abused

its discretion in denying his motion to vacate his guilty

plea predicated on the allegedly ineffective assistance

of counsel. We disagree.

‘‘A guilty plea, once accepted, may be withdrawn only

with the permission of the court. . . . The court is

required to permit the withdrawal of a guilty plea upon

proof of any ground set forth in Practice Book § [39-

27]. . . . Whether such proof is made is a question

for the court in its sound discretion, and a denial of

permission to withdraw is reversible only if that discretion has been abused.’’ (Internal quotation marks omitted.) State v. Gundel, 56 Conn. App. 805, 812, 746 A.2d

204, cert. denied, 253 Conn. 906, 753 A.2d 941 (2000).

In applying the abuse of discretion standard, this court

is obligated to indulge ‘‘every reasonable presumption

in favor of upholding’’ the judgment of the trial court.

State v. Annulli, 309 Conn. 482, 491, 71 A.3d 530 (2013).

Our Supreme Court generally has ‘‘required that a

claim of ineffective assistance of counsel must be raised

by way of habeas corpus, rather than by direct appeal

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

Vega, 259 Conn. 374, 385, 788 A.2d 1221, cert. denied,

537 U.S. 836, 123 S. Ct. 152, 154 L. Ed. 2d 56 (2002).

Practice Book § 39-27 (4) nonetheless ‘‘provides an

explicit exception to this general rule . . . and allows

a defendant to withdraw a guilty plea after its acceptance if the plea resulted from the denial of effective

assistance of counsel . . . .’’ (Internal quotation marks

omitted.) State v. Turner, 267 Conn. 414, 426–27, 838

A.2d 947, cert. denied, 543 U.S. 809, 125 S. Ct. 36, 160 L.

Ed. 2d 12 (2004). To prevail on such a claim, a defendant

‘‘must satisfy two requirements . . . . First, he must

prove that the assistance was not within the range of

competence displayed by lawyers with ordinary training

and skill in criminal law . . . . Second, there must

exist such an interrelationship between the ineffective

assistance of counsel and the guilty plea that it can be

said that the plea was not voluntary and intelligent

because of the ineffective assistance.’’ (Internal quotation marks omitted.) State v. Gay, 108 Conn. App. 211,

217, 947 A.2d 428, cert. denied, 288 Conn. 913, 954 A.2d

186 (2008). ‘‘[I]rrespective of whether a defendant proceeds by way of habeas corpus or direct appeal, our

review is the same, and the burden remains on the
defendant to produce an adequate record so that an

appellate court may ascertain whether counsel’s performance was ineffective.’’ State v. Turner, supra, 427.

We conclude that the defendant has not met that

burden. Notably, the defendant did not call Cretella as

a witness during the evidentiary hearing on his motion

to vacate his plea. Although the defendant testified at

that hearing that Cretella incorrectly apprised him of

the immigration consequences of his guilty plea, it

remains that the court expressly rejected that testimony. It is axiomatic that the court, as trier of fact,

was free to do so, particularly when ‘‘the state has

vigorously contested the force of that testimony by

cross-examination.’’ (Internal quotation marks omitted.) State v. Morelli, 293 Conn. 147, 160, 976 A.2d 678

(2009); see also State v. DeMarco, 311 Conn. 510, 521

n.4, 88 A.3d 491 (2014) (‘‘the trial court has discretion

to reject even uncontested evidence’’ because it ‘‘is

uniquely well situated to make determinations of witness credibility’’ [internal quotation marks omitted]);

State v. Roseboro, 221 Conn. 430, 437, 604 A.2d 1286

(1992) (trial court entitled to reject testimony and inferences offered on behalf of defendant). As an appellate

body, this court cannot reevaluate the credibility of

testimony. ‘‘In a case tried before a court, the trial judge

is the sole arbiter of the credibility of the witnesses

and the weight to be given to their testimony.’’ (Internal

quotation marks omitted.) State v. Miranda, 260 Conn.

93, 110, 794 A.2d 506 (2000). We refuse to disturb that

credibility determination.

The defendant thus failed to furnish any credible

evidence to substantiate his allegation of ineffective

assistance of counsel. This case, therefore, is distinguishable from Padilla v. Kentucky, 559 U.S. 356, 130

S. Ct. 1473, 176 L. Ed. 2d 284 (2010). In Padilla, the

United States Supreme Court held that the right to effective assistance of counsel mandated by the sixth amendment to the United States constitution requires a

criminal defense attorney to advise a defendant

‘‘whether [a guilty] plea carries a risk of deportation.’’

Id., 374. Recognizing that ‘‘[i]mmigration law can be

complex,’’ the court explained that ‘‘[t]here will, therefore, undoubtedly be numerous situations in which the

deportation consequences of a particular plea are

unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is

not succinct and straightforward . . . a criminal

defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a

risk of adverse immigration consequences. But when

the deportation consequence is truly clear, as it was in

this case, the duty to give correct advice is equally

clear.’’ (Footnote omitted.) Id., 369. At the same time,

the court emphasized that ‘‘[s]urmounting [the] high

bar [set by Strickland v. Washington, 466 U.S. 668, 104

S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] is never an easy
task’’; id., 371; and noted that, absent evidence to the

contrary, ‘‘[w]e should . . . presume that counsel satisfied their obligation to render competent advice at the

time their clients considered pleading guilty.’’ Id., 372.

Because the defendant did not furnish any credible

evidence at the evidentiary hearing to substantiate his

claim that Cretella failed to properly advise him of the

immigration consequences of his guilty plea, he cannot

demonstrate that Cretella rendered ineffective assistance of counsel. The court, therefore, did not abuse

its discretion in denying the defendant’s motion to

vacate his guilty plea.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Atthe defendant’s plea hearing, the state’s attorney detailed the complainant’s account of the assault, stating in relevant part: ‘‘[A]fter a party . . .

at the club, the complainant . . . remained behind by herself in order to

clean up the club . . . . When [the defendant] arrived back at the club, he

then attempted to and did, in fact, engage in some consensual kissing with

the complainant which then turned violent and physical. [The complainant]

was led over by her hair to a nearby bench/seating area within the club.

She was then bent over and forcibly sexually assaulted, this defendant anally

penetrating her with his penis on several occasions. She stated that on

numerous occasions during the entire sexual assault she was begging, pleading for him to stop, and the defendant, in a highly intoxicated state, did not

abide by those requests and continued the sexual assault for some time

until he was finished, then she left when he passed out.’’ At sentencing, the

trial court opined that ‘‘having presided over these types of cases for a

period of eighteen years, [this case is] one of the worst sexual assaults that

I have ever seen on the record.’’

2 General Statutes § 53a-70 (a) provides in relevant part: ‘‘A person is

guilty of sexual assault in the first degree when such person (1) compels

another person to engage in sexual intercourse by the use of force against

such other person . . . or by the threat of use of force against such other

person . . . which reasonably causes such person to fear physical injury

to such person . . . .’’

3

‘‘Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed.

2d 162 (1970), a criminal defendant is not required to admit his guilt . . .

but consents to being punished as if he were guilty to avoid the risk of

proceeding to trial. . . . A guilty plea under the Alford doctrine is a judicial

oxymoron in that the defendant does not admit guilt but acknowledges that

the state’s evidence against him is so strong that he is prepared to accept

the entry of a guilty plea nevertheless.’’ (Internal quotation marks omitted.)

Johnson v. Commissioner of Correction, 285 Conn. 556, 558 n.2, 941 A.2d

248 (2008).

4 The defendant testified that he previously had pleaded guilty to a number

of felonies before the United States District Court for the Southern District

of New York.

5 During the hearing on the motion to vacate the plea, the court specifically

asked the defendant whether he was ‘‘familiar with the issue of deportation

prior to the date you pleaded guilty in this court.’’ The defendant

answered affirmatively.