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CARL DELVECCHIO v. COMMISSIONER

OF CORRECTION

(AC 34851)

Alvord, Bear and Schaller, Js.

Argued December 5, 2013—officially released April 15, 2014

(Appeal from Superior Court, judicial district of

Tolland, Cobb, J.)

Mary H. Trainer, assigned counsel, for the appellant (petitioner).

David J. Smith, senior assistant state’s attorney, with

whom, on the brief, was Michael L. Regan, state’s attorney, for the appellee (respondent).
Opinion

PER CURIAM. The petitioner, Carl Delvecchio,

appeals from the judgment of the habeas court denying

his second amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas

court improperly determined that he was provided with

effective assistance of counsel. We affirm the judgment

of the habeas court.

The habeas court made the following findings of fact.

In March, 2006, a string of armed robberies occurred

over the course of a single evening in Norwich and

Montville. Witnesses to the robberies described to the

police what the assailants looked like, what they were

wearing, and what vehicle they were driving. The police

later stopped a vehicle occupied by two individuals

matching the witnesses’ descriptions. During the stop,

the police conducted a ‘‘drive-by show-up’’ identification procedure.1 After the witnesses identified the petitioner as one of the assailants, the police arrested him.

The petitioner was charged in four separate informations with robbery in the first degree in violation of

General Statutes § 53a-134, larceny in the second degree

in violation of General Statutes § 53a-123, possession

of a firearm without a permit in violation of General

Statutes § 29-35a, and criminal possession of a firearm

in violation of General Statutes § 53a-217. In three of

the four informations, he was charged with attempt to

commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134. In addition, he was

charged with violation of probation.2

Shortly after his arrest, the petitioner’s family hired

Attorney Robert Cary to represent the petitioner. Cary,

who had represented the petitioner in previous matters,

was in possession of the petitioner’s mental health

records and was familiar with the petitioner’s mental

health history. Consequently, at the petitioner’s first

court appearance, Cary informed the court of the petitioner’s mental health history and prescription medications, and asked that the petitioner be placed on suicide

watch. Throughout the pretrial proceedings, Cary routinely checked the state’s file in lieu of a formal discovery request.3

The state initially offered the petitioner a plea

agreement of nine years imprisonment followed by six

years special parole. The petitioner rejected this offer

and his case was placed on the trial list. At a pretrial

conference, the trial court informed Cary that the petitioner should expect to receive the maximum sentence

if convicted. Cary, in turn, explained the trial court’s

position on sentencing to the petitioner, and the petitioner expressed concern to Cary over the possibility

of a harsh sentence if convicted. Thereafter, shortly

before trial, the court offered to resolve all of the petitioner’s charges in exchange for a sentence of ten years
imprisonment followed by five years special parole.

Cary then discussed the offer, as well as the risk of

going to trial and facing a harsher sentence, with the

petitioner. He explained to the petitioner that the state

could establish a violation of probation, resulting in

approximately four and one-half years imprisonment.

In addition, he explained the state’s evidence regarding

the other charges to the petitioner, which included the

testimony of at least one victim who could identify the

petitioner, the presence of the victim’s identification

card in the petitioner’s vehicle when he was arrested,

and the testimony of the petitioner’s codefendant. Cary

thought the court’s offer, under the circumstances, was

a good one. He urged the petitioner to accept it. The

petitioner decided to accept the court’s offer.

The petitioner subsequently pleaded guilty to two

counts of robbery in the first degree and admitted to a

violation of probation.4 Cary believed that the petitioner

was coherent and capable of making the decision to

plead guilty. The court conducted a thorough plea canvass, informing the petitioner that if he were convicted

on the robbery charges alone, he faced up to forty years

imprisonment, in addition to the four and one-half years

imprisonment for violation of probation. In addition,

the court inquired whether the petitioner understood

that by pleading guilty, he was waiving his right to a

trial. The petitioner stated that he understood. After

the court accepted the pleas, however, the petitioner

requested to address the court. After the court granted

his request, the petitioner denied committing the robberies. The court then ordered a recess, during which

the petitioner consulted with Cary. Following the

recess, the court explained to the petitioner that if he

denied committing the crimes but believed the state

had enough evidence to convict him, he could plead

guilty pursuant to the Alford doctrine.5 The petitioner

indicated that he wanted to do so. The court then

ordered that the plea canvass would stand and that

both pleas would be changed to Alford pleas. The court

set sentencing for a later date.

Before the sentencing hearing, Cary withdrew as the

petitioner’s counsel. The court appointed Attorney

Gregg W. Wagman to represent the petitioner. Wagman

subsequently filed a motion to vacate the petitioner’s

pleas, but did not request an evidentiary hearing in

connection with the motion. Thereafter, at the sentencing hearing, the court denied the motion. The court then

sentenced the petitioner to ten years of imprisonment,

followed by five years of special parole, and terminated

the petitioner’s probation pursuant to the terms of the

plea agreement. The petitioner subsequently appealed

his conviction to this court. During the pendency of the

appeal, the petitioner’s appellate counsel filed a motion

to withdraw as counsel on the ground that the appeal

was frivolous. The trial court granted appellate counsel’s motion to withdraw, and this court subsequently
disposed of the petitioner’s appeal on its own motion.

On August 18, 2011, the petitioner filed a second

amended petition for a writ of habeas corpus alleging

that Cary and Wagman rendered ineffective assistance

of counsel in a variety of ways. Following a trial, the

habeas court rejected the claims of ineffective assistance and denied the petition.6 The petitioner then filed

a petition for certification to appeal to this court, which

the habeas court granted. This appeal followed.

The applicable standard of review and principles of

law governing claims of ineffective assistance of counsel are well settled. ‘‘The habeas court is afforded broad

discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . The application of the habeas court’s factual

findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject

to plenary review.’’ (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 677, 51 A.3d 948 (2012).

‘‘Furthermore, it is well established that [a] criminal

defendant is constitutionally entitled to adequate and

effective assistance of counsel at all critical stages of

criminal proceedings. Strickland v. Washington [466

U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)].

This right arises under the sixth and fourteenth amendments to the United States constitution and article first,

§ 8, of the Connecticut constitution. . . . As enunciated in Strickland v. Washington, supra, 687, this court

has stated: It 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. . . . The claim will succeed only if both prongs

are satisfied.’’ (Internal quotation marks omitted.)

Gaines v. Commissioner of Correction, supra, 306

Conn. 677–78.

‘‘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.’’ (Internal quotation marks omitted.) Davis v.

Commissioner of Correction, 147 Conn. App. 343, 349,

81 A.3d 1226 (2013), cert. granted, 311 Conn. 921,

A.3d (2014). ‘‘The prejudice inquiry in claims arising

from counsel’s advice during the plea process differs

from the analysis of claims following conviction after

trial.’’7 Carraway v. Commissioner of Correction, 144

Conn. App. 461, 472, 72 A.3d 426 (2013). 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.’’ Copas v.

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

A.2d 718 (1995). 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.’’8 Hill v. Lockhart, supra, 59.

In the present case, the habeas court concluded that

even if counsels’ performance was deficient, the petitioner still would have pleaded guilty. This conclusion

is premised on the court’s finding that the petitioner

opted to plead guilty precisely because he was concerned that a trial would result in his conviction and a

harsher sentence than the plea offer. Our review of

the record indicates that the primary source of the

petitioner’s concern that his trial would result in a conviction was the potential testimony of his codefendant.

Contrary to the petitioner’s argument, both Cary and

Wagman independently confirmed that the petitioner’s

codefendant would have testified against him if the

petitioner’s case went to trial. Moreover, Cary testified

at the habeas trial that the petitioner repeatedly

expressed that he had ‘‘huge concerns about being convicted’’ and that his codefendant was going to ‘‘hang’’

him. Before pleading guilty, the petitioner was aware

of the trial court’s position on sentencing if he were

convicted following a trial, he had ‘‘little doubt’’ that

his codefendant was going to testify against him, and,

in light of his codefendant’s potential testimony, he

indicated to his attorney that he did not want to ‘‘roll

the dice’’ by going to trial. In addition, during his plea

canvass, the petitioner indicated to the court that he

‘‘didn’t want to take the risk of trial’’ precisely because

he believed that the state had enough evidence to convict him.

On the basis of the foregoing, the habeas court reasonably concluded that the petitioner’s decision to

plead guilty arose primarily from his understanding that

the testimony of his codefendant would result in his

conviction if he went to trial. When coupled with his

awareness that he would face the maximum sentence

if convicted, the court properly found that it was not

reasonably probable that the petitioner would have

insisted on going to trial. We note, however, that under

the Strickland-Hill modified prejudice standard, ‘‘[t]he

fundamental question . . . is whether the petitioner

would not have pleaded guilty.’’ Carraway v. Commissioner of Correction, supra, 144 Conn. App. 477 (2013).

Because none of counsels’ alleged errors would have

affected the reason forthe petitioner’s decision to plead

guilty, namely, that his codefendant would testify

against him if he went to trial, we conclude that the

petitioner has failed to demonstrate that, absent counsels’ alleged errors, there is a reasonable probability he

would not have pleaded guilty and would have insisted

on going to trial.

The judgment is affirmed.

1

‘‘A ‘show-up’ is the presentation of a single suspect to an eyewitness for

possible identification.’’ State v. Ledbetter, 275 Conn. 534, 549 n.12, 881 A.2d

290 (2005), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537
(2006). The ‘‘drive-by show-up’’ identification procedure employed in the

present case involved the police transporting the witnesses to the scene of

the stop to either identify the individuals as the assailants or eliminate them

as suspects in the robberies.

2 As a result of a previous conviction, the petitioner was on probation

when he was arrested in March, 2006.

3 At the time of the pretrial proceedings, the New London state attorney’s

office had an ‘‘open file policy.’’

4 Pursuant to the plea agreement, the state dropped the remaining charges

against the petitioner.

5 See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d

162 (1970).

6 The habeas court rejected the petitioner’s claim that his guilty pleas

were ‘‘obtained in violation of his state and federal constitutional rights to

due process of law.’’ Notwithstanding the rejection of this claim, both the

court and the record indicate that the petitioner withdrew his due process

claim at the habeas trial. Whether the claim was withdrawn or rejected, the

petitioner has not raised a due process claim on appeal.

7 To demonstrate prejudice following a conviction after trial, ‘‘the petitioner must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’’ Gaines v. Commissioner of Correction, supra, 306

Conn. 688–89.

8 We note that in Copas v. Commissioner, supra, 234 Conn. 151, our

Supreme Court determined that, to establish prejudice, a petitioner who

has entered a plea of guilty must show that he or she would not have pleaded

guilty and would likely have been successful at trial. By contrast, in an

appeal currently pending in our Supreme Court, both the petitioner and the

respondent, the Commissioner of Correction, maintain that a petitioner must

show only that, but for counsel’s deficient performance, he or she would

not have pleaded guilty and would have insisted on going to trial. See Brown

v. Commissioner of Correction, Docket No. SC 18859.