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CARRIE YERINIDES v. COMMISSIONER

OF CORRECTION

(AC 35733)

DiPentima, C. J., and Alvord and Bear, Js.

Argued October 29, 2014—officially released March 17, 2015

(Appeal from Superior Court, judicial district of

Tolland, Newson, J.)

William A. Snider, assigned counsel, for the appellant (petitioner).

Jonathan M. Sousa, special deputy assistant state’s

attorney, with whom, on the brief, were David I. Cohen,

state’s attorney, and Yamini Menon, special deputy

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

BEAR, J. The petitioner, Carrie Yerinides, appeals

from the denial of her petition for certification to appeal

from the judgment of the habeas court denying her

amended petition for a writ of habeas corpus. On

appeal, the petitioner claims that the habeas court

abused its discretion in denying her petition for certification and improperly determined that her criminal

defense counsel had provided effective assistance. We

conclude that the habeas court did not abuse its discretion in denying certification to appeal. Accordingly, we

dismiss the appeal.

The following facts and procedural history are relevant to our resolution of the petitioner’s appeal. In 2009,

the petitioner was the defendant in numerous matters

pending in the judicial districts of Bridgeport and Norwalk. She had a total of seven cases pending against

her, four criminal and two motor vehicle cases in Norwalk, and a criminal violation of probation case in

Bridgeport. While those cases were pending, on September 30, 2009, the petitioner was arrested, charged with

the sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and

possession of narcotics in violation of General Statutes

§ 21a-279 (a), and presented before the Norwalk Superior Court under docket number S20N-CR-09-0124007

(docket #007). Prior to the petitioner’s arrest on docket

#007, the state had presented the petitioner with an

offer that would have resolved her Norwalk cases and

required her to serve approximately three years imprisonment. That offer, however, was withdrawn when the

petitioner was arrested on the charges in docket #007.1

The state presented a new offer, and on January 4, 2010,

the petitioner entered a plea of guilty to one count of

sale of narcotics by a person who is not drug-dependent

in violation of § 21a-278 (b)2

in docket #007 in exchange

forthe agreed upon sentence of eight years of incarceration, followed by five years of special parole, to be

served concurrently to other sentences she was then

serving or going to serve.3

On June 24, 2010, the petitioner, through her habeas

counsel, filed a petition for a writ of habeas corpus,

which was later amended on July 17, 2012. The petitioner claimed that her defense counsel had provided

ineffective assistance by failing to adequately investigate her history of drug use and dependence as a possible defense to § 21a-278 (b) in order to negotiate a more

favorable plea agreement.

The habeas trial was held on December 10, 2012, and

in a memorandum of decision filed on March 18, 2013,

the habeas court denied the petition. The habeas court

found: ‘‘[T]here is no reasonable probability to believe

that had defense counsel sought and obtained a substance abuse exam for his client pursuant to CADAC
[see General Statutes § 17a-693 et seq.], or had he

obtained the substance abuse records that were available at the time, the petitioner would have received a

more favorable pretrial offer, and the petitioner has

presented nothing more than speculation and conjecture to support her claim that either the state’s attorney

or sentencing court would have been swayed by such

information to do so. . . . [S]ince there was already

an offer outstanding at the time of the petitioner’s arrest

on docket #007 that would have required her to accept

a prison sentence, there is no reasonable construction

of the evidence presented that would support the petitioner’s claim that, had counsel obtained and presented

such substance abuse information, either the court or

the state’s attorney would have been willing to consider

a long-term drug treatment program as an alternative

disposition . . . .’’ (Footnote omitted.)

The court furtherfound: ‘‘[T]he petitioner’s claim that

she would have elected to go to trial had she known

that she was being sentenced as a [person who is not

drug-dependent] under General Statutes § 21a-278 (a)

simply lacked credibility. First, the petitioner has a prior

conviction for sale of narcotics under the same statute,

which, although some time ago, undermines her credibility that she did not understand that the present conviction under the same statute was as a [person who

is not drug-dependent]. Additionally, the petitioner was

well versed in the criminal justice system, and this court

does not believe that she was unaware of the significant

exposure she faced on all files had she made the foolhardy decision to reject a plea deal on this one file

when her only other option was to proceed to separate

trials on eight [files]. Even had a fact finder believed

she was drug-dependent and convicted her of selling

narcotics under General Statutes § 21a-277, her overall

exposure on all charges and files then pending still

would have been multiple times the plea agreement

negotiated by her attorney. By proceeding to trial, she

may have won that battle, but she surely would have

lost the war. In fact, when given this option by the

trial court a few days prior to entering her pleas, the

petitioner quickly declined.’’ (Footnotes omitted.) The

court concluded that ‘‘the petitioner has failed to establish she was prejudiced, because she has failed to establish that there is a reasonable probability that, but for

counsel’s advice, she was willing to proceed to trial.’’

On March 28, 2013, the petitioner filed a petition for

certification to appeal from the judgment denying her

amended petition, which the habeas court denied on

April 4, 2013. This appeal followed.

We begin by setting forth the appropriate standard

of review and legal principles that inform our analysis.

‘‘Faced with the habeas court’s denial of certification

to appeal, a petitioner’s first burden is to demonstrate

that the habeas court’s ruling constituted an abuse of
discretion. . . . If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be

reversed on its merits. . . . To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] 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. . . . In determining whether the

habeas court abused its discretion in denying the petitioner’s request for certification, we necessarily must

considerthe merits of the petitioner’s underlying claims

to determine whether the habeas court reasonably

determined that the petitioner’s appeal was frivolous.

‘‘ (Citation omitted; internal quotation marks omitted.)

Michael G. v. Commissioner of Correction, 153 Conn.

App. 556, 559, 102 A.3d 132 (2014), cert. denied, 315

Conn. 916, A.3d (2015).

‘‘A criminal defendant is constitutionally entitled to

adequate and effective assistance of counsel at all critical stages of criminal proceedings. . . . This right

arises under the sixth and fourteenth amendments to

the United States constitution and article first, § 8, of

the Connecticut constitution. . . . It is axiomatic that

the right to counsel is the right to the effective assistance of counsel. . . . The United States Supreme

Court, long before its recent decisions in Missouri v.

Frye, U.S. , 132 S. Ct. 1399, 182 L. Ed. 2d 379

(2012), and Lafler v. Cooper, U.S. , 132 S. Ct.

1376, 182 L. Ed. 2d 398 (2012), recognized that the two

part test articulated in Strickland v. Washington, 466

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), applies

to ineffective assistance of counsel claims arising out of

the plea negotiation stage.’’ (Citation omitted; internal

quotation marks omitted.) Barlow v. Commissioner of

Correction, 150 Conn. App. 781, 792, 93 A.3d 165 (2014).

‘‘In its analysis, a reviewing court may look to the

performance prong or to the prejudice prong, and the

petitioner’s failure to prove either is fatal to a habeas

petition. . . . The prejudice inquiry in claims arising

from counsel’s advice during the plea process differs

from the analysis of claims following conviction after

trial. . . . In Hill v. Lockhart, 474 U.S. 52, 106 S. Ct.

366, 88 L. Ed. 2d 203 (1985), the Supreme Court of the

United States articulated a modified prejudice standard

for cases in which the conviction has resulted from a

guilty plea. . . . In order to establish prejudice in such

cases, the petitioner must demonstrate that there is a

reasonable probability that, but for counsel’s errors, he

would not have pleaded guilty and would have insisted

on going to trial.’’(Citations omitted; footnotes omitted;

internal quotation marks omitted.) Delvecchio v. Commissioner of Correction, 149 Conn. App. 494, 500, 88

A.3d 610, cert. denied, 312 Conn. 904, 91 A.3d 906 (2014);

see also Washington v. Commissioner of Correction,
287 Conn. 792, 833, 835, 950 A.2d 1220 (2008); Crawford

v. Commissioner of Correction, 285 Conn. 585, 598, 940

A.2d 789 (2008); Johnson v. Commissioner of Correction, 285 Conn. 556, 576, 941 A.2d 248 (2008); Axel D.

v. Commissioner of Correction, 135 Conn. App. 428,

432–33, 41 A.3d 1196 (2012). In an earlier opinion, Copas

v. Commissioner of Correction, 234 Conn. 139, 151, 662

A.2d 718 (1995), however, our Supreme Court interpreted Hill as requiring the petitioner to show ‘‘that he

would not have pleaded guilty, that he would have

insisted on going to trial, and that the evidence that

had been undiscovered orthe defenses he claims should

have been introduced were likely to have been successful at trial.’’ In Carraway v. Commissioner of Correction, 144 Conn. App. 461, 471 n.9, 474–76, 72 A.3d 426

(2013), cert. granted, 312 Conn. 925, 95 A.3d 521 (2014),

this court declined to follow the prejudice standard as

articulated in Copas because it determined that the

Hill standard was controlling as a matter of federal

constitutional law as also recognized by our Supreme

Court in Washington, Crawford, and Johnson.

We conclude, after a thorough review of the record,

that the petitioner has not demonstrated that the resolution of any underlying claim involves issues that 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. The habeas court found the following:

that the petitioner had extensive experience with the

criminal justice system; that she had a prior conviction

under § 21a-278 (b); that her responses during the plea

canvass by the court confirmed that her defense counsel

explained the elements of the offense of sale of narcotics by a person who is not drug-dependent and the

five year mandatory minimum sentence; that the court

explained to her that her rejection of the offer would

result in consecutive trials on all of her pending charges,

including other charges that had mandatory minimum

sentences; that there was the possibility of an ultimate

sentence ‘‘substantially in the double figures’’; that the

court determined that the petitioner understood the

substantial benefit that she would receive by pleading

guilty to the offense of sale of narcotics by a person

who is not drug-dependent in violation of § 21a-278 (b),

instead of electing to be tried on all of the outstanding

charges; and that because of the foregoing findings, she

failed to establish that she suffered any prejudice, i.e.,

the petitioner did not demonstrate that there was a

reasonable probability that, but for counsel’s errors,

she would not have pleaded guilty and would have

insisted on going to trial. Hill v. Lockhart, supra, 474

U.S. 59; Washington v. Commissioner of Correction,

supra, 287 Conn. 833; Crawford v. Commissioner of

Correction, supra, 285 Conn. 585; Johnson v. Commissioner of Correction, supra, 285 Conn. 576; Delvecchio

v. Commissioner of Correction, supra, 149 Conn. App.
500; Carraway v. Commissioner of Correction, supra,

144 Conn. App. 474–76; Axel D. v. Commissioner of

Correction, supra, 135 Conn. App. 428. Accordingly, we

conclude that the 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 We also note that at the time of her arrest on the charges in docket

#007, the petitioner had thirty-one prior convictions, nine of which were

drug related.

2 General Statutes § 21a-278 (b) provides in relevant part: ‘‘Any person

who manufactures, distributes, sells, prescribes, dispenses, compounds,

transports with the intent to sell or dispense, possesses with the intent to

sell or dispense, offers, gives or administers to another person any narcotic

substance, hallucinogenic substance other than marijuana, amphetaminetype substance, or one kilogram or more of a cannabis-type substance . . .

and who is not, at the time of such action, a drug-dependent person, for a

first offense shall be imprisoned not less than five years or more than twenty

years . . . .’’

3 We note that as part of the plea agreement, the state agreed not to

prosecute the remainder of the cases that were pending against the petitioner

in Norwalk. The petitioner, however, was serving a six month sentence for

contempt of court, which she received in Norwalk on November 20, 2009,

and a concurrent four year sentence for the criminal violation of probation

she received in Bridgeport on December 23, 2009.