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DAVIS v. COMMISSIONER OF CORRECTION—DISSENT

ESPINOSA, J., with whom ZARELLA, J., joins, dissenting. I disagree with the majority’s conclusion that

the present case calls for the application of United

States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed.

2d 657 (1984), to the claim of the petitioner, Douglas

Davis, that his attorney rendered ineffective assistance

during his sentencing hearing. The facts of this case

simply do not constitute ‘‘circumstances that are so

likely to prejudice the accused that the cost of litigating

their effect . . . is unjustified.’’ Id., 658. Instead, this

appeal is appropriately resolved by the application of

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

2052, 80 L. Ed. 2d 674 (1984). Pursuant to Strickland, I

conclude that, assuming, without deciding, that defense

counsel’s performance during the sentencing hearing

was deficient, the habeas court properly denied the

petition because the petitioner failed to prove that he

had been prejudiced. Accordingly, I respectfully

dissent.

The majority rests its conclusion on defense counsel’s

statement during the petitioner’s sentencing hearing:

‘‘Your Honor, I agree with everything that everybody

said so far, and I don’t think there’s anything left to

say from my part.’’ (Emphasis added.) The majority

interprets defense counsel’s statement to mean that he

specifically agreed with the prosecutor’s recommendation that the trial court impose the maximum sentence

allowed under the petitioner’s plea agreement. On the

basis of that statement, the majority concludes that

there was a complete breakdown in the adversarial

process, justifying the application of Cronic to the petitioner’s ineffective assistance of counsel claim. I disagree with the majority for two reasons. First, the

majority ascribes a meaning to defense counsel’s statement, which, although possible, is not consistent with

the context in which the statement was made. Viewed

in that context, defense counsel’s statement conveyed

general agreement with the sentiments that had been

expressed during the emotionally charged sentencing

hearing, not a specific agreement with the state’s

requested sentence. Second, the majority’s insistence

that defense counsel was required to argue for a lower

sentence misinterprets both Cronic and Strickland. I

discuss each of these points in turn.

The court opened the sentencing hearing with some

prefatory remarks, noting the tragic circumstances that

had necessitated the proceeding, and stating that ‘‘the

saddest thing is to come to court to sentence someone

to jail for killing another human being . . . .’’ The court

recognized that the petitioner’s life had been ruined,

but, ‘‘more importantly, no matter what the court does

for the victim’s family, you can’t bring the victim back,
and there’s no number of years that’s going to make [the

family] happy.’’ The court then particularly remarked on

the lamentable proliferation of guns, specifically in the

city of New Haven, where ‘‘it appears [that] . . . everyone in town carries a gun. . . . [I]t’s a very sad, sad situation.’’

The prosecutor next addressed the court, echoing

the court’s sentiments regarding the tragedy of losing

a loved one to violence. He then introduced the victim’s

family members, each of whom spoke of the personal

loss that he or she had endured as a result of the victim’s

death at the petitioner’s hands. The victim’s father

spoke first, addressing the petitioner: ‘‘You messed the

whole family up by killing my son. . . . I guess we’ll

never get over it, but you got your life, and he’s gone.’’

The court offered some comfort to the victim’s father,

stating: ‘‘[T]o lose a child [is] probably the worst thing

that can happen to a family. But to lose a child in a

violent death to me is unthinkable. And I could nevertell

you I know the emotions you’re going through because I

can’t, and I hope I never do, sir.’’ Another member of

the victim’s family then spoke, stating that he has never

seen the petitioner show any sign of remorse, nor has

he apologized for his crime. The court acknowledged

that the presentence investigation (PSI)reportreflected

that the petitioner had told his probation officer that

he cannot forgive himself for what he did, but, the court

continued, ‘‘I know for the family, it would be nice if

he looked back and looked you in the eyes and [said]

‘I’m sorry.’ It would ease some of the pain, I understand

that, sir.’’

Two of the victim’s sisters and a cousin also spoke.

Their statements expressed a profound sense of loss

and pain at the pointlessness of the crime. One of the

victim’s sisters stated: ‘‘All of this was over $50.’’ The

victim’s family would have given the petitioner $50, she

further stated, if only they could have kept their brother

and son and cousin. The petitioner’s family, they noted,

could visit the petitioner in prison when they chose to

do so; for the victim’s family, the only place they could

visit was the cemetery.

At that point in the sentencing hearing, the court, the

prosecutor, and five members of the victim’s family

each had spoken of the pain and suffering that the

family had endured, and of the senselessness of the

crime. Seven people had all spoken to this common

theme, and some of the family members wept as they

expressed their pain. The statements of the victim’s

family members comprised the vast majority of the

sentencing hearing. After they had finished speaking,

the prosecutor, when called upon by the court, made a

very brief statement recommending a sentence, stating:

‘‘Thank you, Your Honor. Needless to say, the state

recommends twenty-five years to serve.’’

At that point, the court called upon defense counsel,
who stated that he agreed with ‘‘everything that everybody said so far . . . .’’ He made this statement after

the court, then the prosecutor, then the victim’s family

members, all had talked about the tragic circumstances

of the crime and the suffering experienced by the family

members. If this appeal involved a question of statutory

interpretation, it would perhaps be appropriate to parse

the meaning of the terms ‘‘everything’’ and ‘‘everybody,’’

but this case is about the reasonable meaning of defense

counsel’s statement, which must be understood in the

context of the preceding statements by the victim’s

family members expressing intense personal suffering

and loss. The natural and respectful response to those

statements is to acknowledge their validity, and that is

what defense counsel did. From the context, it is apparent that defense counsel was respectfully agreeing that

this was a tragedy, and that the pain and suffering of

the victim’s family was immeasurable. Nothing in the

transcript suggests that anyone in the courtroom heard

that statement to express specific agreement with the

state’s recommended sentence. Defense counsel’s

statement must be understood in light of the requirement that ‘‘[j]udicial scrutiny of counsel’s performance

must be highly deferential.’’ Strickland v. Washington,

supra, 466 U.S. 689. Interpreting counsel’s statement in

the most negative way possible, particularly when a

more likely and benign understanding of the statement

is obvious from the record, is not consistent with the

general presumption of competent representation by

counsel.

The error in the majority’s interpretation is that it

confuses defense counsel’s respectful acknowledgment

of both the expressed grief of the family members and

the tragedy of the circumstances with his substantive

input, which was that he had nothing to add. Specifically, he stated: ‘‘I don’t think there’s anything left to say

from my part.’’ Properly analyzed, therefore, defense

counsel’s action was not, as the majority claims, that

he expressed agreement with the sentencing recommendation of the prosecutor, but that he failed to present any argument in mitigation. That distinction

renders Cronic inapplicable to the facts of the present case.

In Cronic, decided on the same day as Strickland,

the United States Supreme Court laid out three ‘‘circumstances that are so likely to prejudice the accused that

the cost of litigating their effect in a particular case is

unjustified.’’ United States v. Cronic, supra, 466 U.S.

658. Those three circumstances are: (1) if the defendant

is denied counsel completely or at a critical stage of the

proceedings, including times when counsel is ‘‘totally

absent’’ or ‘‘prevented from assisting the accused’’; id.,

659 and n.25; (2) if ‘‘counsel entirely fails to subject the

prosecution’s case to meaningful adversarial testing’’;

id., 659; and (3) if it is unlikely that even a fully competent attorney could provide effective assistance. Id.,
659–60; see also Mickens v. Taylor, 535 U.S. 162, 166–67,

122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002). In those circumstances, the court stated, the defendant does not have

to make a showing of prejudice; instead, prejudice can

be presumed. United States v. Cronic, supra, 658. The

United States Supreme Court subsequently explained

the second circumstance it set forth in Cronic: ‘‘When

we spoke in Cronic of the possibility of presuming

prejudice based on an attorney’s failure to test the prosecutor’s case, we indicated that the attorney’s failure

must be complete.’’ Bell v. Cone, 535 U.S. 685, 697–98,

122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002); id. (concluding

that failing to produce mitigating evidence and waiving

closing argument ‘‘are plainly of the same ilk as other

specific attorney errors’’ and Strickland is appropriate

test). Even when defense counsel’s representation of

his client is poor, courts do not presume prejudice and,

instead, analyze it pursuant to Strickland. See id.

The United States Supreme Court has recognized that

it will be rare that Cronic, and not Strickland, will be

the appropriate test in a claim of ineffective assistance

of counsel. See, e.g., Florida v. Nixon, 543 U.S. 175,

190, 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004). Most

tellingly, the court in Cronic did not find that the circumstances presented in that case were worthy of a

presumption of prejudice.1 United States v. Cronic,

supra, 466 U.S. 666–67. In that case, the respondent was

indicted on mail fraud charges and, shortly before the

scheduled trial date, the respondent’s counsel withdrew. Id., 649. The court appointed a young attorney

who primarily practiced real estate law, and who had

never before tried a case to a jury, to represent the

respondent. Id., 649, 665. Additionally, the attorney was

given only twenty-five days to prepare for trial, despite

the fact that the government had spent four and one-half

years investigating the case and reviewing thousands of

documents. Id., 649. Even with these facts, the court

did not presume that defense counsel’s actions prejudiced the respondent and, instead, remanded the case

for consideration under the Strickland test. Id., 666–67,

666 n.41. The court’s determination in Cronic that the

presumption of prejudice did not apply even under the

egregious facts presented in that case illustrates how

narrowly the presumption is applied. Put simply, if the

presumption of prejudice did not apply to the factual

circumstances setforth in Cronic, then the presumption

clearly does not apply in the present case.

Courts that have subsequently considered Cronic

have made clear that a presumption of prejudice is

applicable only in exceptional circumstances. Instead,

Strickland’s two part inquiry applies to even egregious

lapses in performance. See Smith v. Brown, 764 F.3d

790, 797–99 (7th Cir. 2014) (Cronic prejudice presumption inapplicable, where, during trial, defense counsel

did not adequately cross-examine witnesses or call own

witnesses, failed to investigate facts of case, did not give
meaningful closing statement, and, during sentencing

hearing, failed to offer suggested sentence or mitigating

evidence); United States v. Theodore, 468 F.3d 52, 55–57

(1st Cir. 2006) (holding Cronic presumption of prejudice inapplicable, despite defense counsel’s: failure to

review relevant materials provided by government and

to interview any witnesses besides defendant; submission of open-ended questions on cross-examination;

lack of familiarity with rules of evidence and federal

subpoena process; and failure to litigate or seek reconsideration of successful motion to quash filed by sole

witness subpoenaed by defense counsel); Scarpa v.

Dubois, 38 F.3d 1, 4–5, 9–10 (1st Cir. 1994) (Cronic

presumption of prejudice inapplicable despite defense

counsel’s failure to call witnesses and, in closing argument, conceded sole contested elements of charged

crimes and encouraged jury to accept government’s

testimony), cert. denied, 513 U.S. 1129, 115 S. Ct. 940,

130 L. Ed. 2d 885 (1995). The facts of the present case,

in which the petitioner’s claim rests on a misreading

of a single statement by defense counsel, pale in comparison to these cases in which courts have nonetheless

declined to apply Cronic.

Notwithstanding the reservation of the presumption

of prejudice standard set forth in Cronic for the rare

circumstance, the majority concludes that the facts of

the present case demonstrate that defense counsel

entirely failed to subject the prosecution’s case to

meaningful adversarial testing. I conclude, on the contrary, thatthe record demonstrates that defense counsel

failed to subject the prosecution’s case to what he

believed would have been meaningless adversarial testing. Defense counsel testified in the habeas trial that

he had concluded that he had no good arguments to

make in support of a shorter sentence, and that he

believed that making a substantive argument could prejudice the petitioner. The risk of prejudice was real. The

trial court had specifically warned the petitioner, during

the plea hearing, that the court was free to sentence

him to more than twenty-five years.2 Reasonable minds

may differ as to whether counsel’s assessment of his

options was correct, and whether his performance was

deficient based on his failure to act on the basis of his

assessment of the situation. But, given defense counsel’s testimony at the habeas trial, the majority’s conclusion that his failure to present an argument at the

petitioner’s sentencing hearing constituted a failure to

subjectthe prosecution’s case to meaningful adversarial

testing is incorrect, and does not give proper effect

to the narrow set of factual circumstances to which

Cronic applies.

The reasons that defense counsel failed to argue for

a specific sentence within the twenty to twenty-five

year range that the petitioner faced at his sentencing

hearing are apparent from the record. That record

reveals that defense counsel had secured a very good
deal for the petitioner, the merit of which became even

more clear when defense counsel received the

extremely negative PSI report shortly before the sentencing hearing, and the fragility of which was made

apparent by the emotionally charged sentencing hearing itself.

The advantageousness of the deal that counsel had

negotiated for the petitioner was clear even before the

PSI report was completed. The facts of the crime were

shocking. The petitioner killed an unarmed man by

shooting him in the abdomen at close range during a

dispute over a game of dice. The state had a very strong

case against the petitioner. The state had eyewitnesses

to the shooting, one of whom was present at the dice

game when the petitioner shot the victim. The petitioner

had confessed to the shooting, although he equivocated

as to whether he had intended to shoot the victim. That

is, he claimed that the gun fired ‘‘by itself,’’ but he also

expressed regret for‘‘pulling the trigger.’’ The petitioner

further admitted fleeing the scene after shooting the

victim, and he had the murder weapon on his person

when he was apprehended by the police. Given the

circumstances, it is not surprising that defense counsel

concluded that twenty-five years was the ‘‘best outcome

[that the petitioner] could have hoped for under the

circumstances.’’ With these facts, one would expect the

state to proceed to trial rather than to offer a deal.

On the basis of all of these facts, the petitioner was

charged with murder in violation of General Statutes

§ 53a-54a, which carries a maximum sentence of sixty

years of incarceration, with a mandatory minimum sentence of twenty-five years to serve. See General Statutes

§§ 53a-35a (2) and 53a-35b. Defense counsel relied on

the fact that the petitioner was intoxicated at the time

of the shooting to obtain the deal, which provided that

if the petitioner pleaded guilty to manslaughter in the

first degree with a firearm in violation of General Statutes § 53a-55a, and carrying a pistol without a permit

in violation of General Statutes § 29-35 (a), he would

be exposed to a minimum sentence of twenty years and

a maximum sentence of twenty-five years for both

charges.

When defense counsel inquired as to the petitioner’s

criminal record, the petitioner responded that he had

some drug convictions. The PSI report was then completed, and provided to defense counsel. Contrary to

his originalrepresentations to defense counsel, the petitioner had a much longer and more significant criminal

record than he had disclosed. In reading the PSI report,

defense counsel learned that the petitioner had convictions for assault, felony larceny, sale of narcotics, failure to appear, breach of the peace and violation of

probation. The petitioner confirmed at the habeas trial

that he had informed defense counsel only about his

drug convictions.
The PSI report recommended that the petitioner

receive the maximum period of incarceration for his

offenses, which, if the court had imposed consecutive

sentences, would have resulted in a total effective sentence of forty-five years. See General Statutes § 53a35a (5) and (8); General Statutes § 29-37 (6). The information in the PSI report made the basis of that recommendation apparent, as it contained only negative

information about the petitioner’s background. The

petitioner had never completed high school, dropping

out before finishing the tenth grade. Additionally,

although he was twenty-five years old at the time of

the sentencing hearing, the petitioner had virtually no

employment history. He had in fact only been legitimately employed twice: once for one to two months in

1994, and again for three to four months in 2003. He

had a long history of alcohol and drug abuse. He began

drinking alcohol at age ten and, by age sixteen, was

drinking daily to the point of intoxication. He also had

a history of using marijuana and phencyclidine, commonly known as PCP, several times every day for years,

a habit that he supported by selling cocaine.

The petitioner also lacked stable connections to family. His parents had both been heavy alcohol and drug

abusers and had no relationship with one another after

his birth. He moved between the custody of his mother

and his grandfather and, when he was a teenager, the

Department of Children and Families placed him in a

state facility. At age sixteen, he ran away from the

facility and had been staying on his own or with family

since that time. In 2002, he married a woman who also

has a lengthy criminal record and who, at the time the

PSI report was prepared, was incarcerated. The two

had been separated at the time of the commission of

the crime in the present case. The petitioner has no

biological children, although his wife has two children

from a previous relationship. Although the petitioner

said he ‘‘ ‘was like a father to them,’ ’’ he did not know

the present whereabouts of the children. The PSI report

stated that ‘‘[the petitioner] expressed a modicum of

remorse and appears to be overwhelmed by the enormity of his actions that night. He may indeed regret

killing the victim, however the offense could never be

considered an accident.’’

At the habeas trial, defense counsel testified that,

ordinarily with facts like the ones in the present case,

the petitioner would be facing murder charges, so a

plea deal subjecting him to twenty-five years in prison

was ‘‘the best outcome he could have hoped for under

the circumstances.’’ Defense counsel further testified

that the petitioner’s ‘‘criminal record was a lot more

extensive than [he] originally had anticipated, [which]

was a problem,’’ and that ‘‘the impact of the victim’s

family at the sentencing hearing was quite substantial

in their grief and their loss and it was very persuasive
to the court under the circumstances.’’ Defense counsel

explained that he had hoped to argue for a more lenient

sentence forthe petitioner based on lack of a substantial

criminal record but, when he read the PSI report, he

realized that would not be an option.

At the habeas trial, defense counsel summed up his

decision not to argue for a sentence of a specific number

of years, stating: ‘‘[A]t the sentencing there was a large

crowd of people, most of whom were related to the

victim, his father, brother, sister, so on and so forth. It

was one of those very emotion-packed hearings where

under the circumstances and due to the fact that there

was a death, you know, the emotions were running

high. The judge was clearly affected by that fact and

sympathetic to the family and sympathetic to the victim.

He was fully aware of what the [petitioner’s] record

was and his background was through the [PSI] report.

None of the facts, as presented by either the victim’s

family or the state, were in dispute, and so at that

point the only thing I could have said would have been

perfunctory and under the circumstances probably

would have elicited more of a negative response from

the court than a positive one, and because [the trial

court] was familiar with anything that I could have said,

I thought it was better not to say anything under the

circumstances and simply let the court make its decision based on what it knew . . . .’’ Defense counsel

also stated: ‘‘Nothing I could have said under the circumstances was going to change what [the trial court]

ultimately decided to do, and so for me to really make

any argument that [the court] was already familiar with

under the circumstances I thought would have been

more hurtful than helpful at the time.’’3

If the majority applied Strickland, it would conclude,

as both the habeas court and the Appellate Court did,

that the petitioner cannot prevail on his claim. See

Davis v. Commissioner of Correction, 147 Conn. App.

343, 363, 81 A.3d 1226 (2013). The petitioner cannot

show that, but for defense counsel’s statement, he

would have received a different sentence, so he cannot

demonstrate actual prejudice. See Strickland v. Washington, supra, 466 U.S. 695–96. The PSIreport contained

the recommendation that the petitioner receive the

maximum sentence and the trial court stated at the

sentencing hearing that it was relying on the PSI report

in determining that there were no mitigating factors

that it could use to sentence the petitioner to less than

twenty-five years. It is telling, in fact, that at the habeas

trial, the petitioner presented no evidence as to what

mitigating evidence his defense counsel could have presented during the sentencing hearing. Even if I were to

assume, arguendo, that defense counsel did provide

ineffective assistance at the petitioner’s sentencing

hearing, I agree with the habeas court and the Appellate

Court that the petitioner was not prejudiced. Accordingly, I would affirm the judgment of the Appellate
Court.

For the foregoing reasons, I respectfully dissent.

1 The majority acknowledges that the United States Supreme Court

declined to apply the Cronic rule in Cronic itself, but then states that this

‘‘nuance’’ does not apply to the present case because this case involves a

petitioner’s claim that there was a complete breakdown in the adversarial

process, whereas in Cronic the claim was that under the circumstances of

that case, it was unlikely that even a fully competent attorney could have

provided effective assistance. See footnote 6 of the majority opinion.

Because the Supreme Court, after conducting the very fact-intensive analysis

that is required in any case where a petitioner claims ineffective assistance

of counsel, concluded that under the facts of that case, the petitioner had

not established that the circumstances arose to the level of the third circumstance set forth in Cronic, and therefore it was not appropriate to presume

prejudice, the majority makes the contorted assertion that somehow Cronic

‘‘held that prejudice could not be presumed with respect to the third category.’’ (Emphasis in original.) Id. That assertion is based on a misreading

of the Cronic decision. The Supreme Court specifically stated that, if proven

to exist, the third circumstance enumerated in Cronic gave rise to the

same presumption of prejudice that resulted from the first and second

circumstances. The reason that the court did not presume prejudice in

Cronic is because, as I have explained, the court set the bar very, very

high before it would conclude that a petitioner had satisfied his burden to

demonstrate that one of the three circumstances existed that justified the

presumption of prejudice. Nothing in Cronic suggests that the analytic process with respect to the second and third circumstances involves anything

other than what the court did in Cronic itself—a very case-specific inquiry

to determine whether the petitioner has established that under the facts of

that case, prejudice should be presumed.

2

If the court did so, the petitioner would be allowed to withdraw his

guilty plea and proceed to trial. Given the strength of the state’s case, the

likelihood of conviction for a charge of murder was high.

3 As I have explained in this dissenting opinion, because I conclude that

the petitioner has not demonstrated actual prejudice, I need not resolve the

question of whether defense counsel’s performance was deficient. Given

defense counsel’s testimony at the habeas hearing, however, I am compelled

to observe that it is reasonable to question whether defense counsel’s performance was deficient at all. As defense counsel testified, he appears to have

made the strategic decision to forgo a substantive argument because he had

nothing of merit to offer in favor of a lesser sentence and he had concerns

that, given the charged atmosphere in the courtroom and the trial court’s

statements expressing sympathy for the victim, he could prejudice his client.