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*********************************************** 
KYLE FREITAG v. COMMISSIONER

OF CORRECTION

(AC 42818)

Bright, C. J., and Moll and Suarez, Js.

Syllabus

The petitioner, who had been convicted, on pleas of guilty, of the crimes

of murder and assault in the first degree, appealed to this court from

the judgment of the habeas court denying his petition for a writ of habeas

corpus. The petitioner claimed that O, the attorney who represented

him during the plea proceeding, rendered ineffective assistance, as did

P, the attorney who represented him during the sentencing proceeding.

The petitioner alleged that O failed to properly advise him regarding

potential defenses and made misrepresentations to him about the willingness of a codefendant, B, to testify at the petitioner’s criminal trial. The

petitioner further alleged that P failed to present adequate mitigation

evidence at the sentencing proceeding and failed to file a motion to

withdraw the guilty pleas, pursuant to the applicable rule of practice

(§ 39-27 (4)), on the basis of O’s ineffective assistance. The petitioner

testified at the habeas trial that O had met with and told him and his

parents on the day of the plea proceeding that he had been informed

by B’s counsel that B was not willing to testify at the petitioner’s criminal

trial. The petitioner further testified that, until that meeting, he was

under the impression that B was going to testify. The petitioner then

appeared before the trial court for the plea proceeding and initially

rejected a plea offer. The petitioner then changed his mind during the

court’s canvass of him and entered his guilty pleas, as it was his understanding that this was his final opportunity to accept the plea offer.

Prior to the sentencing proceeding, however, the petitioner learned from

his family that B was willing to testify. The habeas court, in determining

that O did not render deficient performance, rejected the petitioner’s

claim that O incorrectly advised him about whether B was willing to

testify. The court made an implicit factual finding that O had told the

petitioner it was not likely that B would testify and an express finding

that O’s assessment was reasonable. The habeas court further determined that its conclusion as to the petitioner’s claims against O foreclosed the petitioner’s claim that P improperly failed to file a motion

to withdraw the guilty pleas. The court reasoned that the petitioner

failed to present credible evidence that his pleas were made unwillingly

or involuntarily and determined that P made a reasonable decision not

to file a motion to withdraw the guilty pleas because the state had

insisted that the petitioner plead guilty to the murder charge. The habeas

court thereafter granted the petitioner certification to appeal. Held:

1. The habeas court’s implicit finding that O told the petitioner during their

meeting on the day of the plea proceeding that it was not likely B would

testify at the criminal trial was clearly erroneous, and, thus, the judgment

had to be reversed and the case remanded for a new trial as to the

claim that O rendered ineffective assistance in connection with his

purported misrepresentation about B:

a. There was no evidence to support the habeas court’s finding, the

petitioner and his father having testified that O, in absolute terms, told

them B would not testify, and O having testified that he did not recall

any discussion during the meeting about B’s willingness to testify and

that he did not recall ever having told the petitioner that B would not

testify created a dispute as to that factual issue, and this court could

not discern whether the habeas court would have credited the testimony

of the petitioner and his father in the absence of the habeas court’s clearly

erroneous finding; moreover, contrary to the request by the respondent

Commissioner of Correction, because this court made no conclusion as

to whether O rendered deficient performance, a remand for further

proceedings to address the issue of prejudice was not proper.

b. Because the habeas court committed error with respect to the petitioner’s principal claim that O made misrepresentations to him as to B’s

willingness to testify, the judgment also had to be reversed as to the
petitioner’s intertwined claim that O rendered ineffective assistance in

failing to properly advise him as to potential defenses.

2. The habeas court’s judgment as to the petitioner’s claims of ineffective

assistance of counsel as to P had to be reversed in part and the case

remanded for a new trial on the claim that P was ineffective in failing

to file a motion to withdraw the guilty pleas pursuant to § 37-27 (4):

a. Because this court reversed the habeas court’s judgment as to certain

of the petitioner’s ineffective assistance of counsel claims against O, the

habeas court’s denial of the petitioner’s claim that P rendered ineffective

assistance in failing to file a motion to withdraw the guilty pleas could

not stand; certain of the habeas court’s determinations in rejecting the

claim as to P were untenable, and its reasoning that P made a strategic

decision not to seek withdrawal of the pleas was irrelevant, as the

purpose of seeking withdrawal of the guilty pleas was not to negotiate

a better plea deal but to insist on going to trial.

b. The habeas court properly concluded that the petitioner did not demonstrate that P rendered ineffective assistance as a result of his failure to

present adequate mitigation evidence at sentencing; the record reflected

that P submitted ample mitigation evidence, which the sentencing court

took into consideration, and the petitioner did not identify any information P failed to present that would have made it reasonably probable

that the sentencing court would have imposed a lesser sentence.

Argued October 19, 2020—officially released November 9, 2021

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, Newson, J.; judgment

denying the petition, from which the petitioner, on the

granting of certification, appealed to this court.

Reversed in part; new trial.

Deren Manasevit, assigned counsel, with whom, on

the brief, was Peter Tsimbidaros, assigned counsel, for

the appellant (petitioner).

Brett R. Aiello, deputy assistant state’s attorney, with

whom, on the brief, were Joseph Valdes, senior assistant

state’s attorney, and Jo Anne Sulik, supervisory assistant state’s attorney, for the appellee (respondent).
Opinion

MOLL, J. The petitioner, Kyle Freitag, appeals, following the granting of his petition for certification to

appeal, from the judgment of the habeas court denying

his amended petition for a writ of habeas corpus. On

appeal, the petitioner claims that the court erred in

denying (1) count one of the amended petition claiming

ineffective assistance of counsel against Attorney Francis O’Reilly, his trial counsel at the time of his guilty

pleas, and (2) count two of the amended petition claiming ineffective assistance of counsel against Attorney

Norman A. Pattis, his trial counsel at the time of sentencing. We reverse, in part, the judgment of the habeas

court and remand the case for a new habeas trial as to

certain claims raised in counts one and two of the

amended petition.

The following facts and procedural history, as set

forth in the habeas court’s corrected memorandum of

decision or as undisputed in the record, are relevant

to our resolution of this appeal. ‘‘The petitioner was

the defendant in three matters pending in the judicial

district of [Stamford-Norwalk] under docket numbers

CR-12-0132590, where he was charged with various drug

charges, criminal possession of a handgun, and possession of a weapon in a motor vehicle; CR-12-0133383,

the subject of the [underlying amended petition for a

writ of habeas corpus], where he was charged with

murder, attempted murder, two counts of assault [in

the] first degree, criminal possession of a handgun,

possession of a pistol without a permit, weapon in a

motor vehicle, and others; and CR-12-0133384, where

he faced a relatively minor possession charge. . . . The

allegations in docket ending #383 were that the petitioner and [his] codefendant, [Terrance] Baxter, were

driving in the petitioner’s minivan on Fort Point Road

in Norwalk on October 30, 2012. . . . Baxter was driving, and the petitioner was in the front passenger seat.

At some point, the van came upon a scooter being driven

in the same direction along the right-hand side of Fort

Point Road by a Dajon Johnson, with a Bancroft Daley

riding behind him as a passenger. The petitioner did

not know the driver but was familiar with . . . Daley

from prior interactions on the street. The two vehicles

rode in the same direction relatively near each other

for some period of time, when, according to one independent witness, the van suddenly accelerated to pull

up alongside of the scooter. The petitioner’s claim as

to this portion of the incident is that the scooter was

behind his vehicle and sped up alongside. In any event,

when the van and the scooter were beside each other,

the petitioner claims to have seen [Daley] reaching

toward his waist area. The petitioner pulled out a .32

caliber pistol, reached out of the passenger window,

and shot both parties. . . . Baxter immediately sped

off, but the two were captured when the van was
stopped about ten minutes later on the highway.

According to [the] police, the petitioner made several

rather unrepentant statements while in custody about

shooting the victims because ‘it was me or them.’ . . .

Johnson died as a result of his gunshot wounds, and

. . . Daley was left paralyzed from the mid-back down.

The only weapon found in the possession of either

victim was a three inch folding knife that was apparently

found inside . . . Daley’s pocket.’’

Attorney Howard Ehring, a public defender, initially

appeared as the petitioner’s criminal defense counsel.

In November, 2014, O’Reilly, appointed as assigned

counsel, filed an appearance in lieu of Ehring.

‘‘All three [of the petitioner’s criminal] matters were

on the ‘firm jury’ list, and the [matter at issue] was

scheduled to begin trial, when the cases were called

on the docket [on] January 14, 2015. Following some

discussions, an offer involving guilty pleas to the murder and assault [in the] first degree charges in exchange

for a judicially indicated sentence of a minimum of

[twenty-five] years to a maximum of [thirty years], followed by [ten] years of special parole, with a right to

argue, was conveyed to the petitioner. That offer was

initially rejected by the petitioner, through [Attorney

O’Reilly], on the record. While the [trial] court was

explaining the withdrawal of the offer and its impact

on future negotiations, the petitioner changed his mind

and agreed to enter pleas of guilty to one count of

murder in violation of General Statutes § 53a-54a (a),

and one count of assault in the first degree in violation of

General Statutes § 53a-59 (a) (1). Following the canvass,

[the court accepted the pleas, and] the matter was continued to March 11, 2015, for sentencing. On February

[17, 2015], however, Attorney . . . Pattis filed an

appearance in lieu of Attorney O’Reilly. On April 7, 2015,

the petitioner appeared for sentencing represented by

Attorney Pattis, where, after hearing from all parties,

the court imposed a sentence of [thirty] years to serve,

followed by [ten] years of special parole on the murder

charge, and [twenty] years concurrent on the assault

charge, for a total effective sentence of [thirty] years,

followed by [ten] years of special parole.’’1

(Footnotes

omitted.)

On September 15, 2015, the petitioner, representing

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

On April 9, 2018, after assigned habeas counsel had

appeared on his behalf, the petitioner filed his operative,

two count amended petition for a writ of habeas corpus

(amended petition). In count one of the amended petition, the petitioner asserted a claim of ineffective assistance of counsel against O’Reilly, alleging, inter alia,

that O’Reilly had (1) incorrectly advised the petitioner

that his codefendant, Baxter, had refused, or would

refuse, to testify at his criminal trial, and (2) failed

to properly advise the petitioner regarding potential
defenses available to him.2 The petitioner further

alleged that, but for O’Reilly’s deficient performance,

he would not have pleaded guilty but, rather, would

have asserted his right to a trial. In count two of the

amended petition, the petitioner asserted a claim of

ineffective assistance of counsel against Pattis, alleging,

inter alia, that Pattis had failed (1) to present adequate

mitigation evidence at sentencing, and (2) to file a

motion to withdraw his guilty pleas predicated on the

ineffective assistance of counsel rendered by O’Reilly.3

The petitioner further alleged that, but for Pattis’ deficient performance, it was reasonably probable that he

would have received a lesser sentence. On April 30,

2018, the respondent, the Commissioner of Correction,

filed a return, leaving the petitioner to his proof as to

his material allegations.

The matter was tried to the habeas court, Newson,

J., over the course of three days in July, August and

November, 2018.4 On February 26, 2019, the court issued

a corrected memorandum of decision5 denying both

counts of the amended petition. Thereafter, the petitioner filed a petition for certification to appeal from

the judgment, which the court granted.6 This appeal

followed. Additional facts and procedural history will

be set forth as necessary.

I

The petitioner’s first claim is that the habeas court

improperly denied count one of the amended petition, in

which he claimed that O’Reilly had rendered ineffective

assistance of counsel. Specifically, the petitioner

asserts that the court incorrectly rejected his ineffective

assistance of counsel claim predicated on O’Reilly’s

alleged (1) misrepresentation to him about Baxter’s

willingness to testify at his criminal trial, and (2) failure

to properly advise him about the potential defenses

available to him. For the reasons that follow, we conclude that a new habeas trial is necessary as to these

claims.

We begin by setting forth the following relevant legal

principles and standard of review. ‘‘In a habeas appeal,

this court cannot disturb the underlying facts found by

the habeas court unless they are clearly erroneous, but

our review of whether the facts as found by the habeas

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

Commissioner of Correction, 180 Conn. App. 697, 703–

704, 184 A.3d 804, cert. denied, 330 Conn. 939, 195 A.3d

692 (2018).

‘‘The [long-standing] test for determining the validity

of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative

courses of action open to the defendant. . . . Where

. . . a defendant is represented by counsel during the
plea process and enters his plea upon the advice of

counsel, the voluntariness of the plea depends on

whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases.’’

(Citation omitted; internal quotation marks omitted.)

Carraway v. Commissioner of Correction, 144 Conn.

App. 461, 471, 72 A.3d 426 (2013), appeal dismissed,

317 Conn. 594, 119 A.3d 1153 (2015). ‘‘[I]n order to

determine whether the petitioner has demonstrated

ineffective assistance of counsel [when the conviction

resulted from a guilty plea], we apply the two part

test enunciated by the United States Supreme Court in

Strickland [v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984)] and Hill [v. Lockhart,

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

. . . In Strickland, which applies to claims of ineffective assistance during criminal proceedings generally,

the United States Supreme Court determined that the

claim must be supported by evidence establishing 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. . . .

‘‘To satisfy the performance prong under StricklandHill, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness. . . . A petitioner who accepts counsel’s advice

to plead guilty has the burden of demonstrating on

habeas appeal that the advice was not within the range

of competence demanded of attorneys in criminal

cases. . . . The range of competence demanded is reasonably competent, or within the range of competence

displayed by lawyers with ordinary training and skill

in the criminal law. . . . Reasonably competent attorneys may advise their clients to plead guilty even if

defenses may exist. . . . A reviewing court must view

counsel’s conduct with a strong presumption that it

falls within the wide range of reasonable professional

assistance. . . .

‘‘To satisfy the prejudice prong [under StricklandHill], the petitioner must show a reasonable probability

that, but for counsel’s errors, he would not have pleaded

guilty and would have insisted on going to trial.’’ (Internal quotation marks omitted.) Humble v. Commissioner

of Correction, supra, 180 Conn. App. 704–705.

A

We first turn to the petitioner’s claim of ineffective

assistance of counsel predicated on O’Reilly’s purported misrepresentation to him regarding Baxter’s

willingness to testify at his criminal trial. The petitioner

contends that the evidence adduced at the habeas trial

established that, almost immediately before the petitioner had entered his guilty pleas, O’Reilly misrepre-
sented to him that Baxter would not testify and that,

as a result of that misrepresentation, he entered guilty

pleas that were uninformed. We construe the essence

of the petitioner’s contention to be that the court, in

determining that O’Reilly’s performance was not deficient, made a clearly erroneous implicit factual finding

that, prior to the petitioner pleading guilty, O’Reilly told

him that it was not likely that Baxter would testify.

We conclude that the court’s implicit factual finding is

clearly erroneous.

The following additional facts and procedural history

are relevant to our resolution of this claim. At the habeas

trial, the petitioner called the following witnesses: Baxter; Donald Freitag, the petitioner’s father (petitioner’s

father); Ehring; O’Reilly; and Attorney Francis DiScala,

who was Baxter’s criminal defense counsel.

Baxter testified in relevant part as follows. On October 30, 2012, Baxter was driving the petitioner to the

petitioner’s place of employment. Before reaching their

destination, the petitioner noticed that Johnson and

Daley had started to follow them, at which point the

petitioner told Baxter to ‘‘get out [of] here’’ because

‘‘[they’re] coming . . . .’’ The petitioner appeared

‘‘scared’’ and ‘‘wasn’t himself.’’ Immediately before the

shooting, Johnson and Daley were positioned on their

scooter next to the passenger side of the petitioner’s

minivan, where the petitioner was seated, at which time

Daley pulled a hood over his head and began moving

his hand toward his waist. At that time, the petitioner

was screaming, ‘‘going crazy,’’ and stating that ‘‘they’re

following us, [t]hey’re trying to get me . . . .’’ The petitioner then pulled out a gun and shot Johnson and

Daley, after which Baxter sped away from the scene.

Afterward, the petitioner conveyed to Baxter that he

had observed Daley reaching for a gun in his waistband.

The petitioner also expressed to Baxter that ‘‘these kids

. . . keep coming for me,’’ that he had ‘‘to go somewhere, [he had] to move or something,’’ and that he was

‘‘tired of these kids [who had] killed his friend . . . .’’7

Sometime before the petitioner had entered his guilty

pleas, Baxter, while he was in jail, met with O’Reilly,

DiScala, and a private investigator for the purpose of

‘‘getting things situated for the trial.’’ At some point in

time, DiScala advised Baxter of his fifth amendment

right against self-incrimination, but Baxter intended to

waive that right and to testify in support of the petitioner.

The petitioner testified in relevant part as follows.

On October 30, 2012, while Baxter was driving him to

his place of employment, the petitioner noticed Johnson

and Daley following them on a scooter. The petitioner

believed Johnson and Daley to be members of a local

gang that the petitioner had encountered on prior occasions.8 The petitioner instructed Baxter to drive past

his place of employment because he did not want John-
son and Daley to know where he worked. At that time,

the petitioner was feeling ‘‘all over the place because [he

was] wondering if [Johnson and Daley] were following

[him] to get [him] . . . .’’ Johnson and Daley eventually

maneuvered their scooter next to the passenger side

of the minivan where the petitioner was seated. The

petitioner noticed that Daley, who had a hood over his

head, was moving his hand toward his waistband for a

‘‘metal object.’’ Fearing that Daley was reaching for a

gun to shoot him, the petitioner retrieved his gun and

shot Johnson and Daley, after which Baxter sped away

from the scene.

On January 14, 2015, before appearing in front of the

trial court and entering his guilty pleas, the petitioner

met with his parents and O’Reilly at the courthouse

(January 14, 2015 meeting). During the January 14, 2015

meeting, O’Reilly told the petitioner that DiScala had

informed him that Baxter was not willing to testify at

the petitioner’s criminal trial. Until that disclosure, the

petitioner was under the impression that Baxter was

going to testify. The petitioner considered Baxter’s testimony to be ‘‘more than important’’ and believed that

he ‘‘needed’’ Baxter’s testimony to support his defense.

Three minutes after being informed by O’Reilly that

Baxter would not be testifying, the petitioner appeared

before the trial court to either accept or reject the

plea offer. The petitioner’s understanding was that this

proceeding was his final opportunity to accept the plea

offer.9 Prior to January 14, 2015, and at the time he

appeared before the court, the petitioner had no intention of pleading guilty. After O’Reilly had informed the

court that the petitioner was rejecting the plea offer,

and as the petitioner was being canvassed by the court,

he changed his mind and decided to accept the offer.

As the petitioner explained: ‘‘[A]s the judge was [canvassing me], my mind’s bouncing all over the place. I

got teary eyed. I started to get emotional based off what

I just heard about my friend telling, you know, basically,

you know, not coming forth for me. And that completely

threw me off, and I just, I lost, I lost hope in that

moment. And I just—I didn’t know what [to] do.’’ After

entering his guilty pleas but before being sentenced,

the petitioner learned from his family that Baxter was,

in fact, willing to testify. Had he known that Baxter

was willing to testify, the petitioner would not have

pleaded guilty.

The petitioner’s father testified in relevant part as

follows. Prior to the January 14, 2015 meeting, the petitioner’s father believed that Baxter would be a helpful

witness for the petitioner, that Baxter would testify at

the petitioner’s criminal trial, and that the petitioner

would insist on going to trial. During the January 14,

2015 meeting, however, O’Reilly conveyed that Baxter

would not be testifying. According to the petitioner’s

father, the disclosure by O’Reilly that ‘‘[o]ne of the main
witnesses [was] not going to testify’’ shocked and

scared the petitioner.

Ehring testified in relevant part as follows. As the

petitioner’s initial criminal defense counsel, Ehring’s

defense strategy was to claim either self-defense or

extreme emotional disturbance. During the course of

his investigation, Ehring met with Baxter and DiScala.

Ehring determined that Baxter’s testimony would be

helpful to the petitioner, as Baxter could bolster the

petitioner’s defense by testifying that the petitioner had

felt terrified and threatened by Johnson and Daley

immediately before the shooting. Ehring discussed with

the petitioner the import of Baxter’s prospective testimony, which, according to Ehring, the petitioner

believed to be pivotal to his defense. Ehring also advised

the petitioner that, if called as a witness at the petitioner’s criminal trial, Baxter could invoke his fifth amendment right against self-incrimination and refuse to testify; however, on the basis of his conversations with

DiScala and others, Ehring was ‘‘pretty certain’’ that

Baxter would waive his fifth amendment right and elect

to testify. After O’Reilly had replaced Ehring as the

petitioner’s criminal defense counsel, Ehring told O’Reilly that Baxter was willing to testify in support of the

petitioner.

O’Reilly testified in relevant part as follows. After

replacing Ehring as the petitioner’s criminal defense

counsel, O’Reilly met with Baxter, DiScala, and a private

investigator at the jail where Baxter was being held ‘‘to

see if [Baxter] might be helpful.’’ O’Reilly did not recall

whether there was any discussion during that meeting

regarding Baxter’s willingness to testify at the petitioner’s criminal trial; however, on the basis of the information that he gathered at the meeting, O’Reilly did not

believe that Baxter’s testimony would be helpful to the

petitioner.

O’Reilly recalled the January 14, 2015 meeting, during

which the discussion was focused on ‘‘[the petitioner’s]

future and . . . what [O’Reilly] thought the end result

of going to trial would be and what [O’Reilly] thought

the best outcome [was] for [the petitioner] to take under

the circumstances.’’ O’Reilly did not remember speaking specifically about Baxter during that meeting, and

O’Reilly did not recall ever telling the petitioner that

Baxter would not testify at his criminal trial. At the end

of the meeting, notwithstanding O’Reilly’s recommendation that the petitioner accept the plea offer, the

petitioner expressed to O’Reilly that he wanted to

decline the plea offer and to proceed to trial. O’Reilly did

not recall whether the petitioner gave an explanation

for his subsequent decision to change his mind and to

accept the plea offer.

DiScala testified in relevant part as follows. As Baxter’s criminal defense counsel, DiScala advised Baxter

that, if called as a witness at the petitioner’s criminal
trial, he could invoke his fifth amendment right against

self-incrimination and decline to testify. DiScala further

advised Baxter that the state would potentially withdraw a favorable plea deal that had been offered to him

if he elected to testify.10 Nevertheless, DiScala believed

that Baxter was ‘‘always willing’’ to testify at the petitioner’s criminal trial.

With regard to his communications with O’Reilly, DiScala remembered meeting with Baxter, O’Reilly, and a

private investigator at the jail where Baxter was being

held in order for O’Reilly ‘‘to get a better understanding

of what Baxter would be testifying to.’’ DiScala did not

recall there being any discussion during that meeting

on the topic of Baxter’s willingness to testify at the

petitioner’s criminal trial. Additionally, DiScala did not

recall having a specific conversation with O’Reilly following that meeting regarding Baxter’s willingness to

testify; however, DiScala was adamant that he never

told O’Reilly that Baxter would not testify. DiScala speculated that he may have stated to O’Reilly either that

Baxter would ‘‘be crazy to testify’’ or that he would

recommend that Baxter invoke his fifth amendment

privilege and decline to testify, but he would not have

represented to O’Reilly that Baxter was not going to testify.

In its decision, the court found that O’Reilly had made

an ‘‘assessment that . . . Baxter was not going to be

available as [a] witness if the case went to trial.’’ The

court determined that there was ‘‘nothing unreasonable

or deficient in Attorney O’Reilly’s assessment . . . .

An attorney’s job is not to make perfect predictions

but to make educated ones based on the reasonable

possibilities. . . . All parties admit there was no definitive conversation about whether . . . Baxter would

testify if called as a witness. Attorney O’Reilly believed

it was unlikely that . . . Baxter would not have

asserted his privilege against self-incrimination, given

[that] he had an open plea agreement with the state.

Even if . . . Baxter had expressed an overt willingness

to ‘help out,’ Attorney O’Reilly made an assessment that

his testimony would not have been particularly helpful,

so he wasn’t going to use him.’’ (Citation omitted.) Subsequently in its decision, the court directly addressed

and rejected the petitioner’s claim that ‘‘Attorney O’Reilly ‘incorrectly advised’ him about whether . . . Baxter was willing to testify on his behalf if called to testify

for the defense at trial.’’ The court stated that O’Reilly

did not need to be ‘‘ ‘correct’ in his assessments of

potential witnesses’’ but was ‘‘only required to make

a reasonable and educated assessment based on the

information before him. In the present case, after taking

the time to meet with [Baxter], Attorney O’Reilly made

an assessment that [Baxter] was not likely to testify for

the defense because [Baxter] had an open plea agreement pending with the state. Given that, [Attorney O’Reilly] presumed that . . . Baxter would likely assert his
privilege against self-incrimination if [Attorney O’Reilly]

attempted to call [Baxter] to testify. Even if [Baxter]

did decide to testify, Attorney O’Reilly did not assess

that [Baxter’s] testimony would have been particularly

helpful. In the end, whether Attorney O’Reilly was, in

[hindsight], actually correct in his assessment of . . .

Baxter’s willingness to testify is not the question. . . .

[Attorney O’Reilly] made a reasoned assessment, given

the factors present before him at the time, and the court

finds nothing deficient about his conduct.’’ (Citation

omitted.)

The petitioner maintains that O’Reilly performed deficiently during the January 14, 2015 meeting by misrepresenting to him, without reservation, that Baxter would

not testify at his criminal trial. The court, however, did

not find that O’Reilly conveyed to the petitioner, in

absolute terms, that Baxter was not going to testify;

rather, we read the court’s decision as including an

implicit factual finding that O’Reilly told the petitioner

that it was not likely that Baxter would testify, coupled

with an express finding that O’Reilly’s assessment was

reasonable. Thus, we construe the substance of the

petitioner’s contention to be that the court clearly erred

by implicitly finding that, during the January 14, 2015

meeting, O’Reilly conveyed to the petitioner that it was

not likely that Baxter would testify. We agree that the

court clearly erred in making this implicit finding.

Preliminarily, we make clear that the court’s express

finding that ‘‘[a]ll parties admit there was no definitive

conversation about whether . . . Baxter would testify

if called as a witness’’ is not germane to the issue before

us. Facially, this finding connotes that it was undisputed

that no definitive conversation ever occurred between

any individuals concerning Baxter’s willingness to testify. If so broadly construed, this finding would be

clearly erroneous in light of the testimony in the record,

as summarized previously in this part of the opinion,

plainly demonstrating that certain individuals, including

the petitioner and the petitioner’s father, maintained

that discussions regarding Baxter’s willingness to testify did occur. In his reply brief, however, the petitioner

clarifies that he is not challenging this finding as clearly

erroneous because, considered in context, this finding

refers only to communications between O’Reilly and

DiScala in relation to the meeting that they had with

Baxter while he was in jail. In other words, the petitioner contends that this finding reasonably can be

interpreted to be that there was no dispute that no

definitive conversation happened between O’Reilly and

DiScala at that meeting regarding Baxter’s willingness

to testify. We agree. Limited in the manner posited by

the petitioner, this finding is supported by the record,

as both O’Reilly and DiScala testified that they did not

recall the subject of Baxter’s willingness to testify being

mentioned during that meeting.11 This finding is separate and distinct from the implicit finding being chal-
lenged by the petitioner, that is, that O’Reilly conveyed

to the petitioner, during the January 14, 2015 meeting,

that Baxter was not likely to testify at his criminal trial.

We iterate that the finding at issue is an implicit

finding necessarily found by the court. In rejecting the

petitioner’s claim that O’Reilly performed deficiently

by ‘‘ ‘incorrectly advis[ing]’ ’’ him during the January 14,

2015 meeting about Baxter’s willingness to testify, the

court concluded that O’Reilly made a reasonable assessment that Baxter ‘‘was not likely to testify for the

defense’’ because Baxter had an open plea agreement

pending with the state, and, thus, ‘‘Baxter would likely

assert his privilege against self-incrimination if [Attorney O’Reilly] attempted to call [Baxter] to testify.’’

(Emphasis added.) Given that the crux of the petitioner’s claim, as identified and rejected by the court, concerned the information conveyed by O’Reilly to the

petitioner at the January 14, 2015 meeting, and that the

court found that O’Reilly’s assessment was that Baxter

‘‘was not likely’’ to testify and that Baxter ‘‘would likely’’

invoke his fifth amendment right against self-incrimination if called to testify, the only reasonable reading of

the court’s decision is that the court implicitly found

that, during the January 14, 2015 meeting, O’Reilly told

the petitioner that it was not likely that Baxter

would testify.

We now turn our attention to the merits of the petitioner’s claim. We observe that ‘‘[a] finding of fact is

clearly erroneous when there is no evidence in the

record to support it . . . or when although there is

evidence to support it, the reviewing court on the entire

evidence is left with the definite and firm conviction

that a mistake has been committed.’’ (Internal quotation

marks omitted.) Charles v. Commissioner of Correction, 206 Conn. App. 341, 357, A.3d (2021),

petition for cert. filed (Conn. September 29, 2021) (No.

210187). In the present case, there is no evidence in

the record supporting the court’s finding that, during

the January 14, 2015 meeting, O’Reilly told the petitioner

that it was not likely that Baxter would testify. None

of the three individuals who attended that meeting and

who testified at the habeas trial provided testimony

that supports that finding. Both the petitioner and the

petitioner’s father testified that O’Reilly, in absolute

terms, told them that Baxter would not testify, whereas

O’Reilly testified that he did not recall there being any

discussion during that meeting about Baxter’s willingness to testify. There is no other evidence in the record

that sheds light on any discussions had during the January 14, 2015 meeting relating to Baxter. Accordingly, we

conclude that the court’s finding is clearly erroneous.

Our conclusion that the court’s finding is clearly erroneous does not mean that the petitioner has satisfied

his burden to prove that O’Reilly rendered deficient

performance. The petitioner asserts that he established
that, during the January 14, 2015 meeting, O’Reilly rendered deficient performance by misrepresenting to him

that Baxter would not testify at his criminal trial. It is

axiomatic, however, that finding facts and resolving

questions of credibility are within the sole province of

the finder of fact, not this court. See Brooks v. Commissioner of Correction, 105 Conn. App. 149, 153, 937 A.2d

699, cert. denied, 286 Conn. 904, 943 A.2d 1101 (2008).

Although the petitioner and the petitioner’s father testified that O’Reilly told them, in absolute terms, that

Baxter would not testify, we cannot discern whether

the habeas court would have credited this testimony

in the absence of the court’s clearly erroneous finding.

See Salmon v. Commissioner of Correction, 178 Conn.

App. 695, 712, 177 A.3d 566 (2017) (observing that it

was uncertain whether, in absence of habeas court’s

clearly erroneous factual finding, habeas court would

have credited petitioner’s testimony to resolve factual

issue). Moreover, O’Reilly testified that, although he did

not recall Baxter’s willingness to testify being discussed

during the January 14, 2015 meeting, he also did not

recall ever telling the petitioner that Baxter would not

testify, thereby creating a dispute as to this factual

issue. Under these circumstances, we conclude that the

judgment rendered on count one must be reversed and

the case must be remanded for a new trial as to the

petitioner’s claim that O’Reilly rendered ineffective

assistance of counsel in connection with his purported

misrepresentation about Baxter. See id., 712–13

(reversing judgment and remanding case for new

habeas trial when habeas court made clearly erroneous

factual finding, leaving unresolved factual issue that

presented question of credibility to be addressed by

habeas court).12

At this juncture, we note that the court disposed of

the petitioner’s ineffective assistance of counsel claim

against O’Reilly on the performance prong of Strickland-Hill only without addressing the prejudice prong.

See Zachs v. Commissioner of Correction, 205 Conn.

App. 243, 255, 257 A.3d 423 (‘‘[b]ecause both [the performance and the prejudice] prongs . . . must be established for a habeas petitioner to prevail, a court may

dismiss a petitioner’s claim if he fails to meet either

prong’’ (internal quotation marks omitted)), cert.

denied, 338 Conn. 909, A.3d (2021). In his appellate brief, the respondent requests that we remand the

case to the court to make factual findings as to the

prejudice prong in the event that we conclude that the

court improperly determined that the petitioner failed

to prove deficient performance by O’Reilly. In support

of this argument, the respondent cites Miller v. Commissioner of Correction, 176 Conn. App. 616, 170 A.3d

736 (2017), in which a habeas court denied an ineffective assistance of counsel claim only on the basis of

the performance prong. Id., 621. On appeal, this court

concluded that (1) counsel’s performance was deficient
(because counsel’s advice regarding immigration consequences was constitutionally insufficient), and (2) the

record was inadequate to determine whether counsel’s

deficient performance prejudiced the petitioner, such

that this court remanded the matter to the habeas court

for further proceedings to make a determination on the

prejudice prong. Id., 635–37. In the present case, unlike

in Miller, we do not make a conclusion as to whether

O’Reilly rendered deficient performance; rather, as a

result of the habeas court’s clearly erroneous finding,

we conclude that a new trial is necessary. Under these

circumstances, a remand to the habeas court for further

proceedings to address the prejudice prong is not

proper. See, e.g., Salmon v. Commissioner of Correction, supra, 178 Conn. App. 714–15 (reversing habeas

court’s judgment denying ineffective assistance of counsel claim and remanding case to court for new trial

when court made clearly erroneous factual finding as

to performance prong and did not address prejudice

prong in its decision).

B

We next turn to the petitioner’s claim of ineffective

assistance of counsel predicated on O’Reilly’s purported failure to properly advise him as to the potential

defenses available to him, including self-defense, which

requires only a brief discussion. We construe this claim

to be intertwined with the petitioner’s principal claim

predicated on O’Reilly’s purported misrepresentation

concerning Baxter’s willingness to testify. Because we

concluded in part I A of this opinion that the court

committed error with respect to the principal claim and

that a new trial as to that claim is necessary, we further

conclude that the judgment rendered on count one must

be reversed insofar as the petitioner claimed that O’Reilly rendered ineffective assistance of counsel in connection with his purported failure to properly advise

the petitioner as to the potential defenses available to

him, and the case must be remanded for a new trial as

to that claim.

II

The petitioner’s second claim is that the habeas court

improperly denied count two of the amended petition,

in which he asserted a claim of ineffective assistance

of counsel against Pattis. Specifically, the petitioner

asserts that the court committed error in rejecting his

claim that Pattis rendered ineffective assistance by failing (1) to file a motion to withdraw the petitioner’s

guilty pleas under Practice Book § 39-27 prior to sentencing, and (2) to present adequate mitigation evidence

at sentencing. We address each assertion in turn.

A

First, the petitioner contends that the court improperly concluded that Pattis did not render ineffective

assistance of counsel as a result of his failure to file a
motion to withdraw the petitioner’s guilty pleas under

Practice Book § 39-27 (4).13 For the reasons that follow,

we conclude that a new trial is necessary as to this claim.

The following additional facts and procedural history

are relevant to our resolution of this claim. In the

amended petition, the petitioner asserted that Pattis

rendered ineffective assistance of counsel, in part, on

the basis of an allegation that Pattis failed ‘‘to seek the

trial court’s permission to withdraw the petitioner’s

guilty pleas on the basis that they were unknowing,

unwilling, and/or involuntary based on [O’Reilly’s] deficient performance for the reasons stated in [count one

of the amended petition] . . . .’’ In its decision, the

court rejected this claim, stating the following three

reasons. First, the court’s conclusion that the petitioner

failed to demonstrate that O’Reilly rendered ineffective

assistance of counsel foreclosed this claim. Second, the

petitioner failed to present any credible evidence that

his guilty pleas were ‘‘ ‘unwilling or involuntary . . . .’ ’’

Third, there was evidence in the record demonstrating

that Pattis had considered filing a motion to withdraw

the guilty pleas, but he made a reasonable decision

against doing so when he discovered that the state

would ‘‘insist on the murder charge in any plea agreement, which meant that the present plea agreement

gave the petitioner the opportunity to argue for the

minimum mandatory sentence he was exposed to.’’

The petitioner asserts that his guilty pleas were not

made knowingly, intelligently, or voluntarily in light of

O’Reilly’s ineffective assistance of counsel, and, thus,

it was incumbent on Pattis to move to withdraw his

guilty pleas under Practice Book § 39-27 predicated on

a claim that he was denied effective assistance of counsel. In light of our conclusion in part I of this opinion

that a new trial is necessary, in part, as to the petitioner’s

ineffective assistance of counsel claim against O’Reilly,

we conclude that a new trial is also necessary as to

this claim against Pattis. The court’s first two reasons

for rejecting this claim against Pattis—that the petitioner failed to establish that O’Reilly rendered ineffective assistance of counsel, and that the petitioner failed

to demonstrate that his pleas were unwilling or involuntary—are untenable following our reversal of the denial,

in part, of count one of the amended petition and attendant remand for a new trial. As for the court’s third

reason, whether Pattis made a strategic decision not to

seek withdrawal of the petitioner’s guilty pleas because

of the state’s insistence on the petitioner pleading guilty

to the murder charge—is irrelevant to the issue here.

The petitioner’s claim regarding O’Reilly was that, but

for O’Reilly’s ineffective assistance, the petitioner

would have asserted his right to a trial rather than

enter the guilty pleas. Thus, the purpose of seeking

withdrawal of the guilty pleas was not to negotiate a

better plea deal but to insist on going to trial.14
Accordingly, under the circumstances of this case,

we conclude that the judgment rendered on count two

must be reversed insofar as the petitioner claimed that

Pattis rendered ineffective assistance of counsel by failing to file a motion to withdraw the petitioner’s guilty

pleas, and the case must be remanded for a new trial

as to that claim.

B

Second, the petitioner contends that the court

improperly concluded that Pattis did not render ineffective assistance of counsel as a result of his failure to

present adequate mitigation evidence at sentencing. We

disagree.

‘‘Criminal defendants have a constitutional right to

effective assistance of counsel during the sentencing

stage.’’ (Internal quotation marks omitted.) Cruz v.

Commissioner of Correction, 206 Conn. App. 17, 31,

257 A.3d 399 (2021). ‘‘A claim of ineffective assistance

of counsel consists of two components: a performance

prong and a prejudice prong. To satisfy the performance

prong, a claimant must demonstrate that counsel made

errors so serious that counsel was not functioning as

the counsel guaranteed . . . by the [s]ixth [a]mendment. . . . In Strickland [v. Washington, supra, 466

U.S. 687], the United States Supreme Court held that

[j]udicial scrutiny of counsel’s performance must be

highly deferential. It is all too tempting for a [petitioner]

to second-guess counsel’s assistance after conviction

or adverse sentence, and it is all too easy for a court,

examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission

of counsel was unreasonable. . . . A fair assessment

of attorney performance requires that every effort be

made to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s

perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a

strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance;

that is, the [petitioner] must overcome the presumption

that, under the circumstances, the challenged action

might be considered sound trial strategy. . . . [C]ounsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of reasonable professional judgment. . . .

‘‘To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the

proceeding would have been different. . . . With

respect to the prejudice component, [i]t is not enough

for the [petitioner] to show that the errors had some

conceivable effect on the outcome of the proceedings.’’

(Citations omitted; internal quotation marks omitted.)
Sotomayor v. Commissioner of Correction, 135 Conn.

App. 15, 21–22, 41 A.3d 333, cert. denied, 305 Conn. 903,

43 A.3d 661 (2012).

The following additional facts and procedural history

are relevant to our resolution of this claim. After pleading guilty on January 14, 2015, the petitioner was sentenced on April 7, 2015. During sentencing, Pattis asked

the court to impose twenty-five years of incarceration,

which was the mandatory minimum sentence for a murder conviction. See General Statutes § 53a-35a (2).

Pattis offered mitigation evidence in support of the

petitioner, including telling the court that (1) two people

whom the petitioner knew were killed by local gang

members after being ‘‘green-lighted,’’ a term described

by Pattis as ‘‘a signal sent to gang members in the [local]

community that they could be killed with impunity,’’

(2) the petitioner ‘‘struggled against things that, frankly,

made his life a nightmare while he was a teenager,’’

including attending a party where he witnessed his

friend, Amos Brown, ‘‘involved in a lethal struggle,’’

testifying as a witness at Brown’s criminal trial, and

‘‘then believ[ing] he was put on a hit list and marked for

death,’’15 (3) for the petitioner’s safety, the petitioner’s

family sent him to school in New York for a few years

before he returned to Connecticut to work with his

family, (4) the petitioner was ‘‘not . . . proud of what

he did,’’ ‘‘made a mistake in shooting to kill,’’ and

‘‘[understood] that he erred,’’ and (5) the petitioner was

not the ‘‘legal fiction that the state has tried to create’’

of ‘‘some irresponsible gangbanger carrying guns for

anything other than self-protection.’’ Pattis further

brought in the petitioner’s father and Brown’s father to

address the court, each of whom made positive remarks

about the petitioner and discussed the violence that the

petitioner had experienced in his life. The petitioner

also addressed the court.

In sentencing the petitioner to a total effective sentence of thirty years of incarceration, followed by ten

years of special parole, the sentencing court acknowledged that the petitioner had lived in a violent environment, feared for his life, took full responsibility for his

actions, and was ‘‘more than the events that occurred

on October 30, 2012’’; nevertheless, the court determined that the petitioner’s conduct was not justified.

Specifically, the court stated: ‘‘[The petitioner] did not

have a right to take . . . Johnson’s life. He did not have

a right to put . . . Daley in a wheelchair for the rest

of his life. . . . Johnson and . . . Daley had families,

had friends. They had long lives ahead of them and

. . . Johnson’s life is obviously over and . . . Daley’s

life has been severely affected, and everyone, including

[the petitioner], has to be accountable for his conduct.’’

The court further observed that ‘‘[t]here have been allegations that [Johnson and Daley] were gang members

and implications . . . that they were somehow violent

or responsible for criminal conduct and, to my knowl-
edge, they weren’t. And even if they were—and, again,

I’m not saying that they were, that does not justify what

[the petitioner] did . . . .’’

In its decision, the habeas court stated that the transcript of the petitioner’s sentencing, which was admitted into evidence as a full exhibit during the habeas

trial, reflected that ‘‘Attorney Pattis argued, in direct

response to some of the state’s comments, about the

violence surrounding the petitioner, his attempts to

avoid that conflict, and his fear of being targeted, and

the court recognized those arguments.’’ Accordingly,

the court concluded that the petitioner’s claim ‘‘fails

because it is directly refuted by the evidence, and the

petitioner has failed to present any new or additional

evidence before this court that he claims would have

altered the . . . sentence.’’

The petitioner claims that Pattis did not adequately

advocate for him during sentencing because he ‘‘failed

to establish critical facts in order to provide a context

for the shooting in the most positive, sympathetic light

to the petitioner,’’ including that Johnson and Daley

were members of the local gang that had threatened

him in the past. We are not persuaded. As the habeas

court properly determined, the record reflects that

Pattis submitted ample mitigation evidence in support

of the petitioner at sentencing, which the sentencing

court took into consideration. In imposing its sentence,

the sentencing court emphasized the serious nature and

severe consequences of the petitioner’s actions. As the

habeas court correctly observed, the petitioner did not

identify any information that Pattis failed to present

that would have made it reasonably probable that the

sentencing court would have imposed a lesser sentence.

In particular, with respect to the petitioner’s contention

that Pattis should have provided information demonstrating that Johnson and Daley were gang members,

the sentencing court stated that the petitioner’s conduct

was not justified even if Johnson and Daley were gang

members who were ‘‘somehow violent or responsible

for criminal conduct . . . .’’ Accordingly, we conclude

that the habeas court properly concluded that the petitioner failed to demonstrate that Pattis rendered ineffective assistance of counsel in relation to this claim.

The judgment is reversed as to count one of the amended

petition for a writ of habeas corpus only insofar as

the petitioner claimed ineffective assistance of counsel

against Attorney Francis O’Reilly in connection with

the failure to correctly advise the petitioner concerning

Terrance Baxter’s willingness to testify and the failure

to properly advise the petitioner about the potential

defenses available to him and the case is remanded to

the habeas court for a new trial as to those claims; the

judgment is reversed as to count two of the amended

petition only insofar as the petitioner claimed ineffective assistance of counsel against Attorney Norman A.
Pattis in connection with the failure to move to withdraw the petitioner’s guilty pleas predicated on the ineffective assistance of counsel rendered by O’Reilly and

the case is remanded to the habeas court for a new

trial as to that claim; the judgment is affirmed in all

other respects.

In this opinion the other judges concurred.

1 After the sentencing court had announced the petitioner’s sentence, the

state entered a nolle as to the charges pending in docket number CR12-0132590. The disposition of docket number CR-12-0133384 is unclear;

however, in its decision, the habeas court noted that the plea deal agreed

to by the petitioner ‘‘resolved all outstanding files and charges pending

against the petitioner.’’

2

In support of count one of the amended petition, the petitioner alleged

additional deficiencies on the part of O’Reilly, which the habeas court

rejected in its corrected memorandum of decision. The petitioner has not

raised any claims on appeal concerning those additional alleged deficiencies.

3

In support of count two of the amended petition, the petitioner alleged

additional deficiencies on the part of Pattis, which the habeas court rejected

in its corrected memorandum of decision. The petitioner has not raised any

claims on appeal concerning those additional alleged deficiencies.

4 On August 10, 2018, the parties rested and presented closing arguments.

On August 13, 2018, the petitioner filed a motion to open the evidence to

present the testimony of an additional witness, Attorney Francis DiScala,

which the court granted, without objection, on August 24, 2018. On November 1, 2018, the parties elicited testimony from DiScala and, after resting,

presented additional closing arguments.

5 The court issued an original memorandum of decision on February 22,

2019. On February 26, 2019, the court issued the corrected memorandum

of decision, which corrected certain typographical errors.

6 The petitioner applied for, and was granted, a waiver of fees, costs, and

expenses and appointment of counsel on appeal.

7 See footnote 8 of this opinion.

8 The petitioner testified that he was a witness in a criminal trial in which

Amos Brown, his friend, was charged with, but later acquitted of, murder.

The petitioner further testified that, following Brown’s acquittal, Brown was

killed by members of the local gang of which, the petitioner believed, Johnson and Daley were members. The petitioner testified that, following Brown’s

acquittal, he was threatened and attacked by members of the gang.

9 The transcript of the January 14, 2015 hearing, which was admitted into

evidence as a full exhibit during the habeas trial, reflects that the trial court

informed the petitioner that any plea accepted by the court after that day

would be an open plea exposing the petitioner to the maximum sentence.

10 Baxter testified that, on April 15, 2015, pursuant to a plea agreement,

he pleaded guilty to several crimes, including hindering prosecution in relation to the events of October 30, 2012, and was subsequently sentenced to

six years of incarceration followed by four years of special parole.

11 The limited scope of this finding is further evinced by comments made

by the habeas court and the petitioner’s counsel during the closing arguments

held following DiScala’s testimony. Specifically, the following colloquy

occurred:

‘‘The Court: I mean, I’ll listen to it back, and, I mean, I thought the

testimony that was given here today was, we set a meeting at the jail, and

I thought we were there to discuss whether or not Baxter was going to

testify; and I thought the testimony was something to the effect of, but

[whether or not Baxter was going to testify] didn’t come up during that

meeting between [O’Reilly, DiScala and Baxter].

‘‘[The Petitioner’s Counsel]: That’s correct, Your Honor. My recollection

of the testimony . . . is that that meeting focused on what . . . Baxter’s

testimony would be . . . . So, my understanding of the facts and the testimony is that there was never an in-depth discussion, would . . . Baxter

testify at that meeting . . . .’’ (Emphasis added.)

12 We note that clearly erroneous factual findings are deemed harmless

when they ‘‘do not undermine appellate confidence in the habeas court’s

fact-finding process . . . .’’ (Internal quotation marks omitted.) Charles v.

Commissioner of Correction, supra, 206 Conn. App. 358. The record does

not reflect that either (1) the court discredited the testimony of the petitioner

and the petitioner’s father, or (2) assuming that the testimony of the peti-
tioner and the petitioner’s father was credible, there was sufficient evidence

to uphold the court’s determination that the petitioner failed to prove deficient performance by O’Reilly. Cf. id., 358–59 (concluding that habeas court’s

clearly erroneous findings were harmless). Thus, we cannot conclude that

the court’s clearly erroneous finding was harmless.

13 Practice Book § 39-27 provides in relevant part: ‘‘The grounds for

allowing the defendant to withdraw his or her plea of guilty after acceptance

are as follows . . .

‘‘(4) [t]he plea resulted from the denial of effective assistance of counsel . . . .’’

14 At the habeas trial, the petitioner testified that he had discussions with

Pattis about withdrawing his guilty pleas on the basis of Baxter’s availability

to testify at his criminal trial. Pattis was not called as a witness at the

habeas trial.

15 See footnote 8 of this opinion.