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*********************************************** 
MARK SILVER v. COMMISSIONER OF CORRECTION

(AC 39238)

Keller, Bright and Pellegrino, Js.

Syllabus

The petitioner, who had been convicted of the crimes of attempt to commit

murder and assault in the first degree, sought a writ of habeas corpus,

claiming that his trial counsel had provided ineffective assistance. The

habeas court rendered judgment denying the habeas petition and, thereafter, denied the petition for certification to appeal, and the petitioner

appealed to this court. Held that the habeas court did not abuse its

discretion in denying the petition for certification to appeal, the petitioner having failed to establish that the issues he raised were debatable

among jurists of reason, that a court could have resolved the issues in

a different manner or that the questions raised were adequate to deserve

encouragement to proceed further; although the petitioner alleged that

his trial counsel had failed to adequately advise him regarding a possible

plea agreement with the state, the habeas court credited the testimony

of his trial counsel that there never was a formal plea offer from the

state and that the state had agreed only to bring a proposal to the

victim’s family for consideration if the petitioner approached the state

with a proposal that included a sentence of twenty years incarceration,

and even if the state had made a formal offer of twenty years incarceration, the petitioner failed to sustain his burden of demonstrating that

his counsel’s performance was deficient, as the testimony of his counsel,

which the court credited, demonstrated that counsel adequately apprised

the petitioner of the advisability of a plea deal with the state, correctly

informed the petitioner of his exposure on the charges he was facing

and of his exposure if the victim died, fully discussed with him the

evidence that would be presented at trial and the strengths and weaknesses of the state’s case, and urged the petitioner to authorize a request

for a plea deal proposing a sentence of twenty years, but that the

petitioner repeatedly refused to consider such a sentence and insisted

on going to trial.

Argued January 2—officially released March 27, 2018

Procedural History

Amended petition for a writ of habeas corpus,

brought to the Superior Court in the judicial district

of Tolland and tried to the court, Fuger, J.; judgment

denying the petition; thereafter, the court denied the

petition for certification to appeal, and the petitioner

appealed to this court. Appeal dismissed.

Andrew P. O’Shea, for the appellant (petitioner).

Margaret Gaffney Radionovas, senior assistant

state’s attorney, with whom, on the brief, were John

C. Smriga, state’s attorney, and Emily Dewey Trudeau,

deputy assistant state’s attorney, for the appellee

(respondent).
Opinion

BRIGHT, J. The petitioner, Mark Silver, appeals following the denial of his petition for certification to

appeal from the judgment of the habeas court denying

his amended petition for a writ of habeas corpus, in

which he alleged ineffective assistance on the part of

his trial counsel in advising him concerning a possible

plea deal. The dispositive issue is whether the habeas

court abused its discretion in denying the petition for

certification to appeal. We conclude that the habeas

court properly denied certification, and we, therefore,

dismiss the appeal.

The following facts inform our review. ‘‘In a two

count substitute information filed August 8, 2008, the

state charged the [petitioner] . . . with attempt to

commit murder in violation of General Statutes §§ 53a49 and 53a-54a (a), and assault in the first degree in

violation of General Statutes § [53a-59 (a) (1)]. After a

jury trial, the [petitioner] was found guilty on both

counts and sentenced by the court to a total effective

term of forty years incarceration.’’ (Footnote omitted.)

State v. Silver, 126 Conn. App. 522, 525, 12 A.3d 1014,

cert. denied, 300 Conn. 931, 17 A.3d 68 (2011). The

judgment of conviction was affirmed by this court on

direct appeal. Id., 539.

On December 21, 2015, the petitioner filed an

amended petition for a writ of habeas corpus, alleging

ineffective assistance of trial counsel, namely, Attorneys Barry Butler and William Schipul.1 The petitioner

alleged, in relevant part, that his trial counsel had ‘‘failed

to adequately advise [him] regarding pursuing a plea

agreement with the state . . . and . . . they failed to

adequately pursue a plea bargain for [him].’’2 Following

an April 26, 2016 trial on the merits of the petition, the

habeas court denied the petition after concluding that

the petitioner had failed to satisfy his burden of proof

that counsel had provided ineffective assistance.

Specifically, the habeas court credited the testimony

of Attorneys Butler and Schipul, and found that their

testimony was more credible than that of the petitioner.

The court also found that there never was a formal plea

offer from the state, but that the state only had agreed

to bring a proposal to the victim’s family for consideration if the petitioner approached the state with a proposal of a sentence of twenty years incarceration; the

petitioner, however, refused to consider such a sentence. The court further found that even if it were to

assume that the state had made a formal offer of twenty

years incarceration, it was clear that Butler and Schipul

had complied with their constitutional duties to advise

and explain the offer to the petitioner and that the

petitioner had made the decision not to entertain such

an offer. The court, therefore, denied the petition for

a writ of habeas corpus. Thereafter, the petitioner filed
a petition for certification to appeal from the habeas

court’s judgment. The court denied the petition for certification to appeal on May 10, 2016. The petitioner now

appeals from the judgment denying his petition for certification to appeal. Additional facts will be set forth

as necessary.

‘‘Faced with a habeas court’s denial of a petition for

certification to appeal, a petitioner can obtain appellate

review of the dismissal of his petition for habeas corpus

only by satisfying the two-pronged test enunciated by

our Supreme Court in Simms v. Warden, 229 Conn.

178, 640 A.2d 601 (1994), and adopted in Simms v.

Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First,

[the petitioner] must demonstrate that the denial of

his petition for certification constituted an abuse of

discretion. . . . Second, if the petitioner can show an

abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the

merits. . . . To prove that the denial of his petition for

certification to appeal constituted 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 consider the merits of

the petitioner’s underlying claims to determine whether

the habeas court reasonably determined that the petitioner’s appeal was frivolous. In other words, we review

the petitioner’s substantive claims for the purpose of

ascertaining whether those claims satisfy one or more

of the three criteria . . . adopted by [our Supreme

Court] for determining the propriety of the habeas

court’s denial of the petition for certification.’’ (Citations omitted; internal quotation marks omitted.) Sanders v. Commissioner of Correction, 169 Conn. App. 813,

821–22, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904,

156 A.3d 536 (2017).

The petitioner claims that the habeas court abused

its discretion in denying his petition for certification to

appeal because there is merit to his underlying claim

that trial counsel provided ineffective assistance by failing to provide constitutionally adequate advice during

plea negotiations. We are not persuaded.

We set forth the legal principles and the standard of

review that guide our analysis. ‘‘The sixth amendment

to the United States constitution, made applicable to the

states through the due process clause of the fourteenth

amendment, affords criminal defendants the right to

effective assistance of counsel. . . . Although a challenge to the facts found by the habeas court is reviewed

under the clearly erroneous standard, whether those
facts constituted a violation of the petitioner’s rights

under the sixth amendment is a mixed determination

of law and fact that requires the application of legal

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

such, that question requires plenary review by this court

unfettered by the clearly erroneous standard. . . .

‘‘It is well established that the failure to adequately

advise a client regarding a plea offer from the state

can form the basis for a sixth amendment claim of

ineffective assistance of counsel.’’ (Citations omitted;

internal quotation marks omitted.) Duncan v. Commissioner of Correction, 171 Conn. App. 635, 646–47, 157

A.3d 1169, cert. denied, 325 Conn. 923, 159 A.3d 1172

(2017). ‘‘As enunciated in Strickland v. Washington,

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

(1984)] . . . [i]t is axiomatic that the right to counsel

is the right to the effective assistance of counsel. . . .

A claim of ineffective assistance of counsel consists of

two components: a performance prong and a prejudice

prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range

of competence displayed by lawyers with ordinary training and skill in the criminal law.’’ (Internal quotation

marks omitted.) Thomas v. Commissioner of Correction, 141 Conn. App. 465, 471, 62 A.3d 534, cert. denied,

308 Conn. 939, 66 A.3d 881 (2013).

‘‘To show prejudice from ineffective assistance of

counsel where a plea offer has lapsed or been rejected

because of counsel’s deficient performance, defendants

must demonstrate a reasonable probability they would

have accepted the earlier plea offer had they been

afforded effective assistance of counsel. Defendants

must also demonstrate a reasonable probability the plea

would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they

had the authority to exercise that discretion under state

law. To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result

of the criminal process would have been more favorable

by reason of a plea to a lesser charge or a sentence of

less prison time. Missouri v. Frye, 566 U.S. 134, 147,

132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012); see also Padilla

v. Kentucky, 559 U.S. 356, 364, 130 S. Ct. 1473, 176 L.

Ed. 2d 284 (2010) . . . .’’ (Internal quotation marks

omitted.) Kellman v. Commissioner of Correction, 178

Conn. App. 63, 71, 174 A.3d 206 (2017). The court, however, ‘‘can find against a petitioner . . . on either the

performance prong or the prejudice prong, whichever is

easier.’’ Thomas v. Commissioner of Correction, supra,

141 Conn. App. 471. In the present case, the habeas

court determined that the petitioner had failed to establish that counsel’s performance was deficient; the court

also determined that there had been no plea offer from

the state.
The petitioner claims that the habeas court erred in

determining that he had failed to establish that trial

counsel had provided inadequate advice during plea

negotiations. Specifically, the petitioner argues: ‘‘Attorney Schipul and Attorney [Butler] failed to adequately

advise the petitioner such that he could make an

informed choice regarding the state’s offer of twenty

years. Had they accurately informed the petitioner

regarding the vast punishment he was exposed to by

going to trial and the likelihood of a lengthy sentence

being imposed, the petitioner would have accepted the

state’s offer and he would have received a sentence

substantially less than the forty year sentence imposed

after trial.’’ Although the petitioner concedes that counsel’s credited testimony ‘‘reflects that they informed

the petitioner of the state’s offer and recommended

multiple times that he accept it,’’ he argues that counsel,

nevertheless, ‘‘did not adequately advise the petitioner

regarding why the offer should be accepted.’’ (Emphasis in original.)

The petitioner also specifically argues that ‘‘Butler

failed to even review the state’s evidence in conjunction

with the elements of the charged crimes to explain why

the state’s case was strong3

. . . .’’ (Footnote added.)

He also contends that ‘‘both attorneys gave the petitioner affirmatively incorrect advice regarding his total

exposure if he proceeded to trial. Attorney Schipul

accurately informed the petitioner that he was exposed

to five to forty years of incarceration under the . . .

charges of attempted murder and assault in the first

degree. However, he failed to adequately advise the

petitioner that, if the victim died and he was charged

with murder instead of attempted murder, that would

increase his exposure to twenty-five to eighty years.

Similarly, Attorney Butler’s advice that the petitioner

was exposed to twenty-five to sixty years if the victim

passed away from his injuries was also affirmatively

incorrect, as he apparently failed to account for the

additional twenty years stemming from the assault in

the first degree charge.’’4

The petitioner contends that counsel’s overall advice

was incorrect and incomplete, and that it fell short

of objective standards for counseling regarding plea

offers.5 We are not persuaded. Indeed, even if we

assume, as did the habeas court, that the state made a

plea offer when it indicated to the petitioner that it

would bring a plea proposal to the victim’s family for

consideration only if the petitioner approached the state

and agreed to serve a twenty year term of incarceration,

we, nevertheless, agree with the habeas court’s conclusion that the petitioner has failed to establish that counsel’s performance was deficient.

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

counsel to make an independent examination of the

facts, circumstances, pleadings and laws involved and
then to offer his informed opinion as to what plea should

be entered. Determining whether an accused is guilty

or innocent of the charges in a complex legal indictment

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

though acutely intelligent. . . . A defense lawyer in a

criminal case has the duty to advise his client fully on

whether a particular plea to a charge appears to be

desirable. . . .

‘‘On the one hand, defense counsel must give the

client the benefit of counsel’s professional advice on

this crucial decision of whether to plead guilty. . . .

As part of this advice, counsel must communicate to

the defendant the terms of the plea offer . . . and

should usually inform the defendant of the strengths

and weaknesses of the case against him, as well as the

alternative sentences to which he will most likely be

exposed. . . . On the other hand, the ultimate decision

whether to plead guilty must be made by the defendant.

. . . And a lawyer must take care not to coerce a client

into either accepting or rejecting a plea offer. . . .

Counsel’s conclusion as to how best to advise a client

in order to avoid, on the one hand, failing to give advice

and, on the other, coercing a plea enjoys a wide range

of reasonableness because [r]epresentation is an art

. . . and [t]here are countless ways to provide effective

assistance in any given case . . . . Counsel rendering

advice in this critical area may take into account, among

other factors, the defendant’s chances of prevailing at

trial, the likely disparity in sentencing after a full trial

as compared to a guilty plea (whether or not accompanied by an agreement with the government), whether

defendant has maintained his innocence, and the defendant’s comprehension of the various factors that will

inform his plea decision.’’ (Citations omitted; emphasis

omitted; internal quotation marks omitted.) Vazquez

v. Commissioner of Correction, 123 Conn. App. 424,

437–38, 1 A.3d 1242 (2010), cert. denied, 302 Conn. 901,

23 A.3d 1241 (2011); see also Sanders v. Commissioner

of Correction, supra, 169 Conn. App. 830–31.

In the present case, after listening to and viewing the

evidence presented at the habeas trial, the habeas court

credited the testimony of both Butler and Schipul, and it

found that they had provided constitutionally adequate

advice regarding the state’s indication that it would

bring to the victim’s family and consider a twenty year

term of incarceration if the petitioner made such a

proposal.

The record reveals that Butler testified in relevant

part that he thought the case against the petitioner was

fairly strong and that the petitioner likely would not

prevail. He testified that the state initially was reluctant

to engage in plea negotiations because the victim’s injuries were so severe and life threatening that it thought a

murder charge might be brought against the petitioner.

Butler stated that he persisted in trying to resolve the
case, and that he succeeded in getting the state to agree

to consider a resolution, but that the state was firm in

its position that it would talk to the victim’s family only

if the petitioner would approach the state about a deal

that included at least a twenty year term of incarceration. Butler stated that he repeatedly broached this with

the petitioner, but that the petitioner ‘‘was not interested in any twenty year sentence’’ or even in a fifteen

year sentence. Butler testified that ‘‘[o]ne of the things

that [the petitioner] said to me was the most he had

ever done was eighteen months, and he sure as hell

wasn’t going to be taking any twenty years.’’ Butler

testified that he advised the petitioner that ‘‘the state

had a strong case, that we were exposed to fifty to sixty

years with the victim’s injuries if he did die and we

faced [a] murder [charge]’’ and that the petitioner

should ‘‘settle the case.’’ Butler always recommended

that the petitioner ‘‘tak[e] the twenty as opposed to

a trial.’’

Schipul testified that he reviewed Butler’s notes, the

state’s evidence, the disclosures, and the investigators’

reports after he took over the petitioner’s defense. After

such review, Schipul thought the case against the petitioner was strong. He learned from Butler’s notes that

the state might be willing to present a twenty year deal

to the victim’s family if the petitioner first agreed to it,

but that no formal offer had been made or would be

made by the state unless the petitioner brought an offer

to the state that included a twenty year term of incarceration. Schipul also testified that the possibility of a

deal was discussed in court chambers, and, after such

discussion, Schipul believed that the state was ‘‘solid

. . . like [a] wall’’ that would not budge about the petitioner serving at least twenty years. He also testified

that the state was not willing to make an offer to the

petitioner, and that he had to be the one to bring any

offer to the state, but that he could do so only if the

petitioner first were to agree to a twenty year term of

incarceration; the state was not willing to bring any

potential offer to the very involved family of the victim

unless the petitioner were to approach the state with

an offer that he would serve twenty years. Schipul

‘‘understood . . . that it wasn’t ever going to get any

better than twenty years.’’

When Schipul brought this possibility to the petitioner on several occasions, the petitioner was not interested and ‘‘thought twenty years was way too much.’’

Schipul stated: ‘‘It got repetitive after a while, and I

[knew] the [petitioner] wasn’t happy about me bringing

it up every time I saw him, so basically, it was—I’d

bring it up occasionally after it was clear to me that [the

petitioner] had no intention of taking twenty years.’’

Schipul also testified that he went over the evidence

with the petitioner, including the vehicle, the description of the perpetrator, and the petitioner’s confession.
He also stated that the petitioner had copies of the

discovery and the police reports. Schipul discussed the

strengths and weaknesses of the case, and he told the

petitioner that the case was not worth taking to trial,

and that the petitioner should enter into a plea

agreement. He testified that he explained to the petitioner ‘‘the advantages of taking a plea bargain versus

going to trial and being exposed to forty years incarceration, and a possible murder prosecution in the future.’’

Schipul stated that the petitioner told him that a twenty

year sentence was not an option, even if the state would

agree not to prosecute him for murder in the event the

victim died. Schipul repeatedly told the petitioner, even

during the trial, that he believed the petitioner should

accept the twenty year proposal, but the petitioner

wanted to continue with the trial. The petitioner argues

that Schipul’s strong recommendations were insufficient in light of the fact that he gave the petitioner false

hope of an acquittal by telling the petitioner that he

might have a defense based on the fact that no witness

had identified the petitioner as the driver of the vehicle

that ran over the victim. Schipul’s discussion with the

petitioner of this theory of defense, however, hardly

can be seen as encouragement to the petitioner that he

try the case given the repeated advice to the petitioner

that the state had a strong case, he should accept a

plea bargain, and he should not go to trial.

We conclude that the testimony of counsel, which

the habeas court credited, demonstrates that counsel

adequately apprised the petitioner of the advisability

of a plea deal with the state. Schipul correctly informed

the petitioner of his exposure on the charges he was

facing. Butler correctly informed him of his exposure

if the victim died. Schipul fully discussed with the petitioner the evidence that would be presented at trial

and the strengths and weaknesses of the case. He also

reviewed with the petitioner the applicable statutes.

Both Butler and Schipul told the petitioner that the

state had a very strong case and urged him to authorize

them to inform the state that the petitioner would

accept a sentence of twenty years. Despite all of counsel’s efforts and advice, the petitioner simply was not

interested in a deal that required a long prison sentence;

he was informed and chose to go to trial.

Accordingly, after a thorough review of the record,

we conclude that the habeas court properly concluded

that the petitioner failed to sustain his burden of demonstrating that his trial counsel rendered ineffective assistance. The petitioner failed to establish that the issues

he raised are debatable among jurists of reason, that a

court could resolve them in a different manner or that

the questions he raised are adequate to deserve encouragement to proceed further. See Sanders v. Commissioner of Correction, supra, 169 Conn. App. 821. We

conclude, therefore, that the habeas court did not abuse

its discretion in denying the petition for certification
to appeal from the judgment denying his amended petition for a writ of habeas corpus.

The appeal is dismissed.

In this opinion the other judges concurred.

1 Butler represented the defendant for only a few months before accepting

a position in a different judicial district. Schipul was appointed to replace

Butler as the defendant’s attorney thereafter. The petitioner does not make

separate claims of ineffective assistance against each attorney, but, rather,

alleges that counsel’s collective overall representation was ineffective.

2 The petitioner had alleged a second count in his petition, which he

withdrew with prejudice before the habeas hearing.

3 The respondent, the Commissioner of Correction, contends that this

claim was not specifically raised in the habeas petition, that Butler was not

asked about this during the habeas trial, and that the habeas court, therefore,

did not address it. We agree with the respondent. We also note that the

petitioner failed to address this in his pretrial habeas brief. Furthermore,

the petitioner does not argue in his brief that Schipul failed to address the

elements of the crime, and we conclude that such an argument would be

inconsistent with Schipul’s testimony that he discussed with the petitioner

the evidence and the strength and weaknesses of the state’s case. The

petitioner also specifically testified during the habeas trial that he had looked

at the statutes addressing the crimes he was alleged to have committed and

that Schipul had to explain them to him, particularly ‘‘that attempted murder

was a compound statute that is combined with murder and attempt together.’’

Accordingly, this belies any claim that counsel had not addressed the elements of the crime with the petitioner.

4 The petitioner incorrectly alleged that, if the victim had died, his total

exposure would have been eighty years. He is correct that his maximum

exposure for intentional murder, pursuant to § 53a-54a, would have been

sixty years, but he fails to recognize that he could not have been exposed

to a separate sentence of twenty years for intentional assault in the first

degree, pursuant to § 53a-59 (a) (1), involving the same victim and the

same conduct.

5 The petitioner also argues that counsel never counseled him on all the

additional charges that the state might have been able to bring against him

via an amended information. When asked during oral argument before this

court for any case law that would support his contention that counsel has

a responsibility to advise a client regarding every possible charge that could

be brought via a hypothetical amendment to an information, when the state

never indicated that it was considering additional charges, the petitioner

admitted that he was aware of none. We are not inclined to impose a new

onerous requirement on counsel on the basis of an unsupported argument

for which the petitioner provides no analysis or legal basis to do so, particularly when the petitioner submitted no evidence whatsoever that the state

ever communicated an intent to charge the petitioner with the additional

hypothetical crimes.