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LEON SANDERS v. COMMISSIONER

OF CORRECTION

(AC 37512)

DiPentima, C. J., and Sheldon and Schaller, Js.

Argued September 8—officially released December 20, 2016

(Appeal from Superior Court, judicial district of

Tolland, Fuger, J.)

Deborah G. Stevenson, assigned counsel, for the

appellant (petitioner).

Kathryn W. Bare, assistant state’s attorney, with

whom, on the brief, were Mary M. Galvin,former state’s

attorney, and Courtney M. Chaplin, deputy assistant

state’s attorney, for the appellee (respondent).
Opinion

DiPENTIMA, C. J. The petitioner, Leon Sanders,

appeals following the denial of his petition for certification to appeal from the judgment of the habeas court

denying his third postconviction petition for a writ of

habeas corpus challenging his conviction on charges

of assault in the first degree and being a persistent

dangerous felony offender. On appeal, the petitioner

claims that the habeas court (1) abused its discretion

in denying his petition for certification to appeal and

(2) improperly denied his petition for a writ of habeas

corpus in which he claimed that counsel in both his

underlying criminal prosecution and his first postconviction habeas corpus proceeding rendered ineffective

assistance. Because the petitioner did not demonstrate

that the habeas court abused its discretion in denying

the petition for certification to appeal, we dismiss

the appeal.

The following facts and procedural history are relevant to our decision. The petitioner was charged with

two counts of assault in the first degree and with being

a persistent dangerous felony offender. These charges

stemmed from an incident in Ansonia on May 23, 2001,

in which Kente Douglas was shot multiple times in the

back. ‘‘Atthe time ofthe shooting, Douglas was reaching

through the back door of a parked automobile to

remove a child’s car seat. Jackie Garcia, Douglas’ girlfriend, was standing near the automobile with the couple’s four year old daughter in her arms. An automobile

drew up beside Douglas, and the [petitioner] fired a

gun at Douglas through the passenger side window.

Douglas fell to the ground, and the [petitioner] continued to fire gunshots at him until the automobile left

the area. During the shooting, Garcia went inside with

her child. After the [petitioner] left, she returned to

the street with a cordless telephone. She dialed 911,

reported to the operator that her boyfriend had been

shot and named the [petitioner] as the shooter. When

the police arrived, an officer spoke with Garcia, who

told him that the [petitioner] had pulled up in a car and

shot Douglas five or six times. A police detective spoke

with Douglas, who also stated that the [petitioner] had

shot him. Later, as Douglas was transported in an ambulance to a hospital, he told another police officer that

the [petitioner] had shot him. In June, 2001, the [petitioner] was arrested and charged. Following the jury

trial, at which he was convicted of two counts of assault,

the [petitioner] was tried to the court on the part B

information in which he was accused of being a persistent dangerous felony offender and was convicted on

that charge as well. Thereafter, the court imposed a

sentence of forty years imprisonment.’’ State v. Sanders, 86 Conn. App. 757, 759, 862 A.2d 857 (2005). On

the petitioner’s appeal from his conviction, this court

affirmed the trial court’s judgment. Id.
Following his conviction, the petitioner brought several petitions for writs of habeas corpus. At issue in

the present appeal is the petitioner’s third such petition,

which was filed on December 12, 2012, and amended

for a fourth time on September 25, 2014 (operative

petition).1 The petitioner set forth three separate claims.

In count one, the petitioner alleged that his first habeas

counsel, Sebastian DeSantis, ‘‘was ineffective in failing

to allege in the prior habeas petition a claim of ineffective assistance of [his criminal defense counsel, Robert

Berke] for his failure to properly advise him of the

state’s offer of eight years incarceration on a guilty plea,

and had he been properly advised, he would not have

rejected it.’’ In count two, the petitioner alleged that

his state and federal rights to due process of law were

violated because Berke had not properly advised him

whether to accept or reject the state’s pretrial offer of

eight years incarceration on a guilty plea. In count three,

the petitioner alleged actual innocence, but he withdrew that claim prior to trial.

At the trial on December 2, 2014, the petitioner presented evidence describing the state’s plea offer. Specifically, the petitioner submitted the transcript from the

first habeas trial, which was held on October 2, 2008,

when he had testified that the state’s plea offer was for

eight years with the rightto argue forless. The petitioner

repeated this testimony at the proceeding on December

2, 2014. Berke, however, testified that there was a plea

offer extended by the state, but he could not remember

the exact terms of the plea offer. Berke further testified

that he did not recall the alleged plea offer of eight

years imprisonment. In terms of how he advised the

petitioner regarding the state’s plea offer, Berke testified that although he could not recall any specific discussion with the petitioner, he typically presents his

clients with ‘‘the positive [and] the negatives of going

to trial—the risks of trial [and] the maximum exposure.

[He does not] present [his] opinion on whether they

should take an offer or not. . . . [T]hat was their decision and not [his].’’

Following the trial, the court, Fuger, J., denied the

operative petition in an oral decision in which it concluded that Berke and DeSantis had provided the petitioner with effective assistance of counsel.2 With

respect to the first count, the court determined that it

could not ‘‘find any deficient performance by [DeSantis]

in his representation of [the petitioner] at the first

habeas trial’’ and, therefore, it denied the first count of

the petition. In rejecting the claim that DeSantis rendered ineffective assistance for failing to allege in the

first habeas action a claim that Berke’s performance

was ineffective for inadequately advising the petitioner

regarding the state’s plea offer, the court made several

findings. It expressly credited the testimony of DeSantis

that the petitioner did not raise any concerns to him
regarding Berke’s representation in connection with

the plea offer, and that the petitioner made it clear to

DeSantis that he wanted to go to trial to prove his

innocence. The court also specifically found, in accordance with DeSantis’ testimony, that in order to determine which issues to raise in the habeas petition, he

reviewed Berke’s file, examined the criminal trial transcripts and files, conversed with the petitioner, hired

an investigator, reviewed the relevant police reports

and reviewed the petition with the petitioner before he

filed it.In drafting the habeas petition, DeSantis testified

that he tried to be overinclusive in order to preserve

issues for future litigation, and his typical practice was

to include a claim in the petition if the petitioner was

adamant about including it, unless it was frivolous. In

addition, DeSantis agreed with counsel for the respondent, the Commissioner of Correction, that the first

habeas court, Nazzaro, J., ‘‘found that it was clear that

the petitioner wanted to go to trial and to prove his

innocence rather than take a plea offer . . . .’’

As to the petitioner’s second count, the court determined that Berke’s performance in the petitioner’s

underlying criminal proceedings was not deficient. With

respect to this conclusion, the court explained that the

petitioner ‘‘rejected a plea bargain that was apparently

eight years with the right to argue for a lower sentence.

[The petitioner] went to trial and received, after being

found guilty by the jury, a sentence of forty years of

confinement.’’ (Emphasis added.) The court expressly

noted that ‘‘Berke did convey and discuss the plea bargains with [the petitioner]. The record is crystal clear

that [the petitioner] protested his innocence and always

asserted that he wished to proceed to trial. The court

is convinced based upon the testimony of [Berke], the

testimony at the first habeas trial, that [Berke] did in

fact adequately explain the pretrial offer, discuss the

case, discuss the maximum punishments, discuss the

pros and cons of pleading guilty or not guilty, but left,

as he should have, the final decision as to whether to

accept or reject such offer to [the petitioner].’’ It further

found Berke’s representation of the petitioner to be

‘‘sufficiently within that band of representation that will

pass constitutional muster.’’

The court then explained that the petitioner had the

burden of proving that ‘‘it was reasonably probable

that a court, a judge would have accepted the [state’s

alleged] eight year [plea] offer in this case.’’ The court

proceeded to explain that it could not ‘‘make the finding

that the petitioner [established that] it [was] reasonably

probable that [the trial judge] would have accepted the

eight year offer, the key word being probable.’’ With

respect to this finding, the court highlighted: the petitioner’s prior conviction of manslaughter, for which the

petitioner had served an eleven year prison sentence;

that the petitioner had been arrested in connection with

a shooting incident soon after he was released after
serving his sentence for his manslaughter conviction;

and that the petitioner had other convictions for crimes

involving firearms. On the basis of the evidence before

it, the court concluded that the petitioner had not met

his burden of proving by a ‘‘preponderance of the evidence that it [was] reasonably probable that a court

would have accepted’’ the state’s eight year plea offer.

As a result of this finding, the court denied the operative

petition claiming ineffective assistance by Berke and

DeSantis. Subsequently, the petitioner filed a petition

for certification to appeal. In that petition, the petitioner

stated that the grounds for appeal are: ‘‘Whether [the]

habeas court erred when it found that [Berke] was

not ineffective when he discussed the strengths [and]

weaknesses of the state’s case but did not advise the

petitioner whether he should accept or reject the state’s

plea offer.’’3 On December 4, 2014, the court denied the

petition for certification to appeal. This appeal

followed.

The petitioner claims that the habeas court abused

its discretion in denying his petition for certification

to appeal because it improperly denied his claims of

ineffective assistance of counsel with respect to Berke

and DeSantis. ‘‘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.’’(Internal quotation marks omitted.) Melendez v. Commissioner of Correction, 151

Conn. App. 351, 357–58, 95 A.3d 551, cert. denied, 314

Conn. 914, 100 A.3d 405 (2014). 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];

orthatthe questions are adequate to deserve encouragement to proceed further.’’ (Internal quotation marks

omitted.) Moye v. Commissioner of Correction, 168

Conn. App. 207, 214, 145 A.3d 362 (2016).

‘‘In determining whether the habeas court abused

its discretion in denying the petitioner’s request for

certification, we necessarily must considerthe merits of

the petitioner’s underlying claims to determine whether

the habeas court reasonably determined that the petitioner’s appeal was frivolous. 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.’’ (Internal

quotation marks omitted.) Bozelko v. Commissioner of

Correction, 162 Conn. App. 716, 721, 133 A.3d 185, cert.

denied, 320 Conn. 926, 133 A.3d 458 (2016).

Here, the petitioner’s underlying claims are that the

habeas court improperly concluded that (1) Berke provided effective assistance of counsel and (2) DeSantis

provided effective assistance of counsel. After

determining the merits of these underlying claims, we

conclude that the court did not abuse its discretion in

denying the petition for certification to appeal.

Our standard of review of a habeas court’s judgment

on ineffective assistance of counsel claims is 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.’’ (Internal quotation marks omitted.)

Horn v. Commissioner of Correction, 321 Conn. 767,

775, 138 A.3d 908 (2016). Therefore, ‘‘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.) Kearney v. Commissioner

of Correction, 113 Conn. App. 223, 228, 965 A.2d 608

(2009).

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 . . . . 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,

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

(1984)], 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. 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.’’ (Citation omitted; internal quotation marks omitted.) Horn v. Commissioner of Correction, supra, 321

Conn. 775. ‘‘To satisfy the second prong of Strickland,

that his counsel’s deficient performance prejudiced his

defense, the petitioner must establish that, as a result

of his trial counsel’s deficient performance, there

remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal. . . .
The second prong is thus satisfied if the petitioner can

demonstrate that there is a reasonable probability that,

but for that ineffectiveness, the outcome would have

been different.’’ (Internal quotation marks omitted.) Id.,

776. ‘‘An ineffective assistance of counsel claim will

succeed only if both prongs [of Strickland] are satisfied.’’ (Internal quotation marks omitted.) Bozelko v.

Commissioner of Correction, supra, 162 Conn. App.

722–23. The court, however, ‘‘may decide against a petitioner on either prong, whichever is easier.’’ Lewis v.

Commissioner of Correction, 165 Conn. App. 441, 451,

139 A.3d 759, cert. denied, 322 Conn. 901, 138 A.3d

931 (2016).

I

The petitioner first claims that the habeas court

abused its discretion in denying his petition for certification to appeal because it improperly denied his claim

of ineffective assistance of counsel with respect to

Berke. As described in the preceding paragraph, to

determine whether the habeas court abused its discretion in denying the petition for certification to appeal,

this court will look at the underlying merits of the petitioner’s claims. See Bozelko v. Commissioner of Correction, supra, 162 Conn. App. 721. Specifically, the

petitioner contends that the habeas court improperly

concluded that (1) Berke’s performance concerning the

state’s plea offer was neither deficient nor prejudicial

and (2) Berke’s failure to advise the petitioner on accessorial liability did not constitute ineffective assistance.

We will address each claim in turn.

A

Turning to the petitioner’s first claim, we agree with

the petitioner that Berke’s performance pertaining to

the state’s plea offer was deficient; however, we are

not persuaded that the petitioner established that he

was prejudiced by the deficient performance. As ‘‘ ‘[a]n

ineffective assistance of counsel claim will succeed only

if both prongs [of Strickland] are satisfied’ ’’; id., 722–23;

we conclude that the petitioner failed to meet his burden of establishing his ineffective assistance of counsel

claim with respect to Berke’s performance pertaining

to the state’s plea offer. Because the petitioner failed

to establish that he was prejudiced by Berke’s deficient

performance, he cannot demonstrate that the issues

pertaining to this claim are debatable among jurists of

reason, that a court could resolve those issues differently or that the questions raised deserve encouragement to proceed further. Therefore, as we discuss

subsequently in this opinion, the petitioner has failed

to demonstrate that the court abused its discretion in

denying his petition for certification to appeal as to

this claim.

We begin by setting forth the governing legal principles in cases involving claims of ineffective assistance
of counsel in the plea bargain context. As previously

noted, under the Strickland test, ‘‘[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.)

Mahon v. Commissioner of Correction, 157 Conn. App.

246, 253, 116 A.3d 331, cert. denied, 317 Conn. 917, 117

A.3d 855 (2015).

‘‘Pretrial negotiations implicating the decision of

whether to plead guilty is a critical stage in criminal

proceedings . . . .’’ (Internal quotation marks omitted.) Id. ‘‘[P]lea bargaining is an integral component of

the criminal justice system and essential to the expeditious and fair administration of our courts. . . . Commentators have estimated that between 80 and 90

percent of criminal cases in Connecticut result in guilty

pleas, the majority of which are the product of plea

bargains. . . . Thus, almost every criminal defendant

is faced with the crucial decision of whether to plead

guilty or proceed to trial. Although this decision is ultimately made by the defendant, the defendant’s attorney

must make an informed evaluation of the options and

determine which alternative will offer the defendant

the most favorable outcome. A defendant relies heavily

upon counsel’s independent evaluation of the charges

and defenses, applicable law, the evidence and the risks

and probable outcome of a trial.’’ (Emphasis in original;

internal quotation marks omitted.) Ebron v. Commissioner of Correction, 120 Conn. App. 560, 572, 992 A.2d

1200 (2010), rev’d in part on other grounds, 307 Conn.

342, 53 A.3d 983 (2012), cert. denied sub nom. Arnone

v. Ebron, U.S. , 133 S. Ct. 1726, 185 L. Ed. 2d

802 (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. . . . To prevail on a claim of ineffective assistance of counsel, both prongs of the Strickland

test must be satisfied.’’ (Citations omitted; internal quotation marks omitted.) Mahon v. Commissioner of Correction, supra, 157 Conn. App. 253–54, quoting Missouri
v. Frye, U.S. , 132 S. Ct. 1399, 1409, 182 L. Ed.

2d 379 (2012); see also Ebron v. Commissioner of Correction, 307 Conn. 342, 357, 53 A.3d 983 (2012) (to

show prejudice in rejected plea case, petitioner must

establish: ‘‘[1] it is reasonably probable that, if not for

counsel’s deficient performance, the petitioner would

have accepted the plea offer, and [2] the trial judge

would have conditionally accepted the plea agreement

if it had been presented to the court’’), cert. denied sub

nom. Arnone v. Ebron, U.S. , 133 S. Ct. 1726,

185 L. Ed. 2d 802 (2013).

1

In his challenge to the habeas court’s conclusion as

to Berke’s performance, the petitioner contends that

Berke’s failure to provide the petitioner his professional

advice, assistance and opinion on the petitioner’s best

course of action concerning the state’s plea offer fell

below an objective standard of reasonableness and,

thus, constituted deficient performance under the first

prong of the Strickland test. We agree.

In focusing on the performance prong, we are guided

by our case law, which provides that ‘‘[i]n any case

presenting an ineffectiveness claim, the performance

inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. . . . Judicial scrutiny of counsel’s performance must be highly

deferential. It is all too tempting for a defendant 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 . . . . 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 defendant must overcome the

presumption that, under the circumstances, the challenged action might be considered sound trial strategy.’’

(Internal quotation marks omitted.) Helmedach v. Commissioner of Correction, 168 Conn. App. 439, 453,

A.3d (2016).

The petitioner bore the burden of presenting sufficient evidence to establish that Berke’s actions constituted deficient performance. In order to establish that

Berke’s performance was deficient, the petitioner was

required to overcome the presumption that Berke’s conduct was reasonable. See Moye v. Commissioner of

Correction, supra, 168 Conn. App. 218. In determining

what is reasonable, we are guided by ‘‘[p]revailing

norms of practice as reflected in American Bar Association standards and the like . . . .’’ (Internal quotation

marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 679, 51 A.3d 948 (2012), quoting

Strickland v. Washington, supra, 466 U.S. 688.
This court has recently stated that counsel performs

effectively and reasonably when he or she provides a

petitioner with adequate information and advice upon

which the petitioner can make an informed decision as

to whetherto accept the state’s plea offer. See Melendez

v. Commissioner of Correction, supra, 151 Conn. App.

359. We are mindful that ‘‘[c]ounsel’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 . . . .’’

(Internal quotation marks omitted.) Barlow v. Commissioner of Correction, 150 Conn. App. 781, 795, 93 A.3d

165 (2014). Accordingly, ‘‘[t]he need for recommendation depends on countless factors, such as the defendant’s chances of prevailing at trial, the likely disparity

in sentencing after a full trial compared to the guilty

plea . . . whether [the] defendant has maintained his

innocence, and the defendant’s comprehension of the

various factors that will inform [his] plea decision.’’

(Internal quotation marks omitted.) Id.

In denying the petitioner’s claim with respect to

Berke, the habeas court expressly concluded that

Berke’s representation was not controlled by our decision in Barlow. The habeas court explained: ‘‘[B]ased

upon the facts that have been produced in this trial,

[Berke] does not fit within the specific boundaries of

Barlow . . . . [Berke] did not simply act as a conduit.

[Berke] did go further. Later on in 2014, and Barlow is

a 2014 case—later on in 2014, the case of Melendez v.

Commissioner, 151 Conn. App. 351, reaches a contrary

conclusion finding that the representation by counsel

for Mr. Melendez did pass constitutional muster. That

was a more detailed explanation in which the counsel

offered explanations, pros and cons, and a recommendation.’’4

In addition, the court noted that ‘‘[i]t is clear

from all of the testimony that [Berke] did convey and

discuss the plea bargains with [the petitioner]. The

record is crystal clear that [the petitioner] protested

his innocence and always asserted that he wished to

proceed to trial. The court is convinced, based upon

the testimony of [Berke], the testimony at the first

habeas trial, that [Berke] did in fact adequately explain

the pretrial offer, discuss the case, discuss the maximum punishments, discuss the pros and cons of pleading guilty or not guilty, but left, as he should have, the

final decision as to whether to accept or reject such

offer to [the petitioner]. . . . While it would appear

that [Berke’s] representation may be closer to that of

Barlow than it is Melendez, nevertheless, the court will

find that [Berke’s] representation was sufficiently

within that band of representation that will pass constitutional muster.’’ We disagree.

In Barlow v. Commissioner of Correction, supra, 150

Conn. App. 789–90, 796–97, this court held that the

petitioner’s defense counsel had rendered deficient per-
formance in failing to advise the petitioner adequately

regarding the court’s plea offer. We noted that the petitioner’s counsel had testified during the habeas trial

that she refrained from giving the petitioner any advice

as to the plea offer proposed by the trial court. Id., 801.

Counsel further had testified that she ‘‘merely gave [the

petitioner] the facts of the offer, [and] provid[ed] no

assistance or advice as [the petitioner] weighed his

options.’’ Id. We concluded that ‘‘[a]lthough we agree

with the habeas court that [counsel] had no obligation

in this case specifically to tell the petitioner whether

to take the court’s plea offer . . . [counsel did have]

an obligation to provide advice and assistance to the

petitioner regarding that plea offer, which, she admittedly failed to do.’’ Id., 796–97. We reasoned that

‘‘[a]lthough the [petitioner] ultimately must decide

whether to accept a plea offer or proceed to trial, this

critical decision, which in many instances will affect a

[petitioner’s] liberty, should be made by a represented

[petitioner] with the adequate professional assistance,

advice, and input of his or her counsel.’’ (Emphasis

in original.) Id., 800. We further noted that ‘‘a crucial

component of counsel’s effective representation during

plea negotiations is giving professional advice to a

[petitioner]. . . . [C]ounsel should give the [petitioner]

his or her professional advice on the best course of

action given the facts of the particular case and the

potential total sentence exposure.’’ (Citations omitted;

emphasis in original.) Id., 799–800. Therefore, we concluded that counsel’s ‘‘performance was deficient

because she did not give the petitioner her professional

advice and assistance concerning, and her evaluation

of, the court’s plea offer.’’ Id., 802.

In Barlow, the petitioner’s trial counsel testified that

she did not provide any advice to the petitioner concerning the plea offer proposed by the court. Id., 801.

Similarly, in this case, Berke testified during the habeas

trial that it was his general practice never to advise his

client or give him advice as to whether he should accept

or reject a plea offer.5 As this court held in Barlow,

advising the petitioner on the strengths and weaknesses

of his case, alerting him to his potential exposure and

explaining to him the terms of the plea offer is insufficient; without the professional advice as to the best

course of action, such representation constitutes deficient performance. Id., 800–802.

Although the petitioner maintained his innocence

during pretrial discussions with Berke, Berke had an

obligation to provide the petitioner his ‘‘professional

advice on the best course of action given the facts

of the particular case and the potential total sentence

exposure.’’ (Emphasis omitted.) Id., 800; see Cardoza v.

Rock, 731 F.3d 169, 178 (2d Cir. 2013) (‘‘defense counsel

have a constitutional duty to . . . advise their clients

on the crucial decision whether to accept a plea offer’’

[internal quotation marks omitted]); see also Vazquez
v. Commissioner of Correction, 123 Conn. App. 424,

437, 1 A.3d 1242 (2010) (stating that ‘‘[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’’ [emphasis added; internal quotation marks

omitted]), cert. denied, 302 Conn. 901, 23 A.3d 1241

(2011).

The respondent, however, argues that Berke’s performance was not deficient for failing to make a specific

recommendation as to whether the petitioner should

accept or reject the state’s plea offer because such a

recommendation was not required under Barlow.

Although we agree that Barlow did not establish a per

se rule obligating counsel to provide recommendations

regarding plea offers, we are not persuaded by the

respondent’s argument. Barlow set forth an obligation

for defense counsel to provide professional advice,

assistance and an ‘‘informed opinion as to what pleas

[to] enter’’ and to make ‘‘an informed evaluation of the

options and determine which alternative will offer the

[petitioner] the most favorable outcome.’’(Internal quotation marks omitted.) Barlow v. Commissioner of Correction, supra, 150 Conn. App. 798. We, therefore, read

Barlow to require counsel to provide the petitioner

his professional advice, assistance and opinion on the

petitioner’s best course of action concerning the state’s

plea offer. This, Berke admits, he did not do.

We note that in his argument that Berke’s performance was not deficient pursuant to the standard set

forth in Barlow, the respondent relies on our decision

in Andrews v. Commissioner of Correction, 155 Conn.

App. 548, 110 A.3d 489, cert. denied, 316 Conn. 911, 112

A.3d 174 (2015). That reliance is misplaced.

In Andrews, the petitioner challenged the habeas

court’s finding that he failed to show that his trial counsel was deficient.6

Id., 551. In support of his claim on

appeal, the petitioner relied on Barlow v. Commissioner of Correction, supra, 150 Conn. App. 781. See

Andrews v. Commissioner of Correction, supra, 155

Conn. App. 553. This court, however, concluded that

because the facts in Andrews were distinguishable, the

petitioner’s reliance on Barlow was misplaced. Id. Specifically, we explained that ‘‘[u]nlike trial counsel in

Barlow, who provided no advice or assistance to her

client on the plea offer, trial counsel in the present case

explained to the petitioner the strengths and weaknesses of the state’s case, the charges he was facing,

and the maximum sentence he would be exposed to if

he was unsuccessful at trial. Trial counsel explained

that the petitioner would likely receive a significantly

higher sentence than twelve years if he was convicted

at trial, that he believed that the state had a strong case

against the petitioner, and that it would be a difficult

case to win because most of the witnesses were police

officers, and one of the police officers had sustained
permanent serious injury. Although trial counsel left

the ultimate decision of whether to accept or to reject

the offer to the petitioner, he provided the petitioner

with adequate professional advice on [his] options and

the best course of action, unlike trial counsel in Barlow,

given the facts of the case and the petitioner’s potential

total sentence exposure.’’ Id., 554–55.

Unlike counsel in Andrews, Berke did not provide

the petitioner with his opinion as to whether the state

would prevail at trial, nor did he provide advice on the

best course of action for the petitioner. This case is thus

distinguishable from Andrews, where defense counsel

explained to the petitioner that in his professional opinion the state had a strong case against the petitioner.

See id. Here, the extent of Berke’s advice concerning

the plea offer was to discuss with the petitioner the

specific strengths and weaknesses of the state’s case.

This is distinguishable from the facts in Andrews where

defense counsel provided detailed advice on the petitioner’s options and best course of action. See id. Therefore, we reject the respondent’s argument that Andrews

v. Commissioner of Correction, supra, 155 Conn. App.

554–55, compels us to reach a different conclusion.

For the foregoing reasons, we conclude that this case

falls within the reasoning of Barlow, and, therefore,

contrary to the conclusion of the habeas court, Berke’s

failure to provide the petitioner his professional advice,

assistance and opinion on the petitioner’s best course

of action concerning the state’s plea offer constituted

deficient performance under the first prong of

Strickland.

2

Having concluded that Berke’s performance concerning the state’s plea offer was deficient, we turn now

to the prejudice prong of Strickland. The petitioner

contends that the court did not provide any factual or

legal basis for its ‘‘belief’’ that the petitioner failed to

meet his burden of establishing that he was prejudiced

by Berke’s deficient performance. We disagree.

The following legal principles are relevant to our

resolution of this claim. In order to show prejudice

stemming from a petitioner’s rejection of a plea bargain

due to ineffective assistance of counsel, ‘‘a petitioner

need establish only that (1) it is reasonably probable

that, if not for counsel’s deficient performance, the petitioner would have accepted the plea offer, and (2) the

trial judge would have conditionally accepted the plea

agreement if it had been presented to the court.’’ Ebron

v. Commissioner of Correction, supra, 307 Conn. 357.

‘‘A reasonable probability is a probability sufficient to

undermine confidence in the outcome. . . . In a

habeas corpus proceeding, the petitioner’s burden of

proving that a fundamental unfairness had been done

is not met by speculation . . . but by demonstrable
realities.’’ (Citation omitted; internal quotation marks

omitted.) Taft v. Commissioner of Correction, 159

Conn. App. 537, 553–54, 124 A.3d 1, cert. denied, 320

Conn. 910, 128 A.3d 954 (2015). ‘‘If the habeas court

determined that . . . it is not reasonably probable that

the trial court would have imposed the sentence embodied in the plea agreement, the prejudice prong has not

been satisfied.’’ Ebron v. Commissioner of Correction,

supra, 355–56.

Although the petitioner testified that he would have

accepted the state’s plea offer but for Berke’s deficient

performance, he has failed to establish, in accordance

with Ebron, that there was a reasonable probability that

the trial judge would have conditionally accepted the

state’s plea offer. With respect to this conclusion, we

find that the evidence adduced at the habeas trial provided both factual and legal support for the court’s

determination. In the habeas court’s decision, Judge

Fuger stated that ‘‘while I cannot categorically say yes

or no that such a plea bargain would have been

accepted, I can say that I do not believe the . . . petitioner in this case has met his burden of proving with

a preponderance of the evidence that it is reasonably

probable that a court would have accepted the eight

year offer.’’ To support this finding, the court expressly

stated various factors, including that the petitioner had

‘‘a prior conviction for manslaughter for which he

served an eleven year sentence. Very shortly after serving that sentence, he was arrested for a shooting incident in which somebody was apparently severely

injured. [The petitioner] has other convictions [that]

involved a firearm.’’

The court also recognized ‘‘the difficulty of trying to

prove that [a court would have conditionally accepted

the state’s plea offer], particularly in a case such as this

where the identities of the particular judges apparently

are unknown.’’ Both our Supreme Court and this court

have considered the difficulty of trying to prove that

the trial court would have accepted the plea offer when

the identities of the judges are unknown and/or the

record does not provide sufficient evidence regarding

the trial court’s general practices. For example, in

Ebron v. Commissioner of Correction, supra, 307 Conn.

361, our Supreme Court recognized that ‘‘when there

is evidence that a particular judge had indicated that he

would have conditionally accepted the plea agreement,

such evidence is probative on the question of what a

reasonable court would have done. We further conclude

that such evidence is sufficient to prove prejudice in

the absence of any evidence that the particular judge’s

practice deviated significantly from the normal practice

or that the particular sentence would have been an

outlier. Because there was no such evidence in the

present case, we conclude that the factual finding that

[the trial judge] would have conditionally accepted the

plea agreement was sufficient to establish prejudice.’’
Id. In addition, in Lewis v. Commissioner of Correction,

supra, 165 Conn. App. 454, this court held that the

petitioner failed to establish prejudice because there

was ‘‘no evidence in the record that the trial court would

have accepted [the] plea agreement . . . .’’ It then

explained that ‘‘[t]o hold otherwise on the record before

us would amount to pure speculation, in which we

decline to engage.’’ Id.

In accordance with the legal principles pertaining to

the prejudice prong of Strickland, as set forth in Ebron

and Lewis, the record before us does not reveal the

identity of the trial judge who would have been presented with the plea offer or whether there was a reasonable probability that a trial judge would have

conditionally accepted the state’s plea offer. The facts

therefore are distinguishable from those in Ebron,

where the record revealed the identity of the trial judge

to whom the plea would have been presented and evidence that the trial judge would have conditionally

accepted the plea. Ebron v. Commissioner of Correction, supra, 307 Conn. 346 n.1. Specifically, in Ebron,

the prosecutor ‘‘testified at the habeas proceeding that

[the trial judge] thought [that] the state’s [plea] offer

was appropriate and that she would not be adjusting

it, lowering it or changing it. When asked if [the prosecutor] had any reason to believe that [the trial judge]

would not have imposed the agreed on sentence if the

petitioner had accepted the plea offer, [the prosecutor]

stated that [the trial judge] was a quite experienced

judge, and that she would have indicated that the plea

offer was too high or too low if she did not intend to

accept it. Accordingly, [the prosecutor] believed that

[the trial judge] would have imposed [the agreed on

sentence].’’ (Internal quotation marks omitted.) Id.

Contrary to the facts ofEbron, here,the only evidence

in the record pertaining to whetherthe trial judge would

have conditionally accepted the plea offer was Berke’s

testimony describing the plea offer as reasonable. We

note that Berke was very hesitant to make such a definitive statement concerning the reasonableness of the

plea offer. Further, Berke admitted that he did not know

whether a trial judge would have accepted the state’s

plea offer, given the facts of this case.7 Even with

Berke’s testimony, the habeas court determined that,

due to the paucity of evidence, it could not find that

the petitioner established that there was a reasonable

probability that the trial judge would have conditionally

accepted the plea offer.

We emphasize that‘‘the petitioner’s burden of proving

that a fundamental unfairness has been done is not met

by speculation . . . but by demonstrable realities.’’

(Citations omitted; internal quotation marks omitted.)

Taft v. Commissioner of Correction, supra, 159 Conn.

App. 553–54. The petitioner’s failure to satisfy his burden of establishing that there was a reasonable probabil-
ity that the trial judge would have conditionally

accepted the state’s plea offer is fatal to this claim. See

Henderson v. Commissioner of Correction, 129 Conn.

App. 188, 196, 19 A.3d 705, cert. denied, 303 Conn. 901,

31 A.3d 1177 (2011). Under the circumstances of this

case, the petitioner has not demonstrated prejudice

because he failed to provide sufficient evidence to support his claim that there was a reasonable probability

that the trial judge would have conditionally accepted

the plea offer. See Lewis v. Commissioner of Correction, supra, 165 Conn. App. 454.

We thus conclude that the petitioner failed to demonstrate that his claim of ineffective assistance of counsel

with respect to Berke’s representation pertaining to the

state’s plea offer involved issues that are debatable

amongst jurists of reason, that a court could resolve

the issue in a different manner, or that the issue is

adequate to deserve encouragement to proceed further.

Therefore, we conclude that the habeas court did not

abuse its discretion in denying the petition for certification to appeal as to this claim. See Bozelko v. Commissioner of Correction, supra, 162 Conn. App. 729–30.

B

The petitioner next claims that the court abused its

discretion in denying his petition for certification to

appeal because the court erred in finding that Berke’s

alleged failure to advise the petitioner on accessorial

liability did not constitute ineffective assistance.8 Specifically, the petitioner argues that Berke had a duty

to conduct an independent investigation of the facts,

evidence and law in determining which theory he would

rely on to defend the petitioner if he proceeded to trial

and to inform the petitioner of the ways he could be

convicted and sentenced, including as an accessory to

the crimes at issue. We disagree.

As enunciated in our well established case law, ‘‘the

United States Supreme Court [has] determined that

[ineffective assistance of counsel claims pertaining to

counsel’s obligation to investigate the facts and legal

principles of each case] must be supported by evidence

establishing that . . . counsel’s representation fell

below an objective standard of reasonableness, and

. . . 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.’’

(Emphasis omitted; internal quotation marks omitted.)

Lapointe v. Commissioner of Correction, 113 Conn.

App. 378, 393–94, 966 A.2d 780 (2009). ‘‘An ineffective

assistance of counsel claim will succeed only if both

prongs [of Strickland] are satisfied.’’(Internal quotation

marks omitted.) Bozelko v. Commissioner of Correction, supra, 162 Conn. App. 722–23. Accordingly, in

addressing this claim we focus on the performance

prong of the Strickland test.
‘‘While it is incumbent on a trial counsel to conduct a

prompt investigation of the case and explore all avenues

leading to facts relevant to the merits of the case and

the penalty in the event of conviction . . . counsel

need not track down each and every lead or personally

investigate every evidentiary possibility.’’ (Internal quotation marks omitted.) Edwards v. Commissioner of

Correction, 87 Conn. App. 517, 525–26, 865 A.2d 1231

(2005). ‘‘In other words, counsel has a duty to make

reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.’’

(Internal quotation marks omitted.) Taft v. Commissioner of Correction, supra, 159 Conn. App. 547. ‘‘In a

habeas corpus proceeding, the petitioner’s burden of

proving that a fundamental unfairness had been done

is not met by speculation, but by demonstrable realities.

. . . One cannot successfully attack, with the advantage of hindsight, a trial counsel’s trial choices and

strategies that otherwise constitutionally comport with

the standards of competence. . . . Because this court

is constrained to evaluating demonstrable realities, we

will not engage in mere speculation.’’ (Citation omitted;

internal quotation marks omitted.) Edwards v. Commissioner of Correction, supra, 526. ‘‘[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.’’

(Internal quotation marks omitted.) Moye v. Commissioner of Correction, supra, 168 Conn. App. 218.

The following additional facts, as set forth by the

habeas court, are relevant to this claim. In its decision,

the court stated: ‘‘It was the state’s theory at trial that

[the petitioner] was the person who did the shooting

based upon statements of eyewitnesses. Based upon

the testimony of [the petitioner at the habeas trial], he

[was] not the person who did the shooting. He [was],

in fact, the driver of the car. Unfortunately, [the petitioner] did not properly communicate these facts to

[Berke].’’ In light of this, the court concluded that

‘‘Berke proceeded on the belief that his client was not

involved in this shooting, and the reason why [Berke]

was under that misapprehension [was] not because he

failed to investigate, not because he was ineffective,

it was because he trusted that his client, under the

protection of attorney-client privilege, was going to tell

him the truth, and he did not. As a result, [Berke] went

into this process with a client who had lied to him,

whose story was not inconsistent with his adamant

assertion of innocence, and who made it clear that in

no way, shape or form did he intend to take a plea

bargain, that he wanted to go to trial and have his day

in court.’’

We agree with the habeas court and are not persuaded
that the petitioner met his burden of establishing that

Berke’s performance pertaining to accessorial liability

was deficient. The authority cited in the respondent’s

brief, namely, Crawford v. Commissioner of Correction, 285 Conn. 585, 940 A.2d 789 (2008), supports the

respondent’s assertion that the petitioner did not establish that Berke’s advice and investigation concerning

accessorial liability was deficient.

In Crawford, our Supreme Court concluded that the

habeas court properly denied the petitioner’s ineffective

assistance of counsel claim for failure to investigate

‘‘[b]ecause the petitioner did not admit until just before

jury selection that he had been the driver of the vehicle

. . . .’’ Id., 599. Our Supreme Court further concluded

that ‘‘[the petitioner’s] trial counsel’s attempt to develop

a defense relating to misidentification was reasonable

in light of the petitioner’s insistence that he had not

been the driver of the vehicle.’’ Id., 599–600. The facts

in Crawford are analogous to those in the present case,

where the petitioner failed to communicate to Berke

that he was ‘‘driving the vehicle when [the victim] was

shot . . . [t]hat [he] drove the shooter to the location

. . . [he was] aware that [he was] driving the shooter

to the location for the purpose of the shooter shooting

[the victim]’’ and therefore ‘‘Berke proceeded on the

belief that the petitioner was not involved in this shooting . . . .’’ Here, as in Crawford, the petitioner continued to claim that he was innocent throughout the

discussions, the trial and sentencing, and it was not until

afterthe petitioner was sentenced that Berke received a

communication from the petitioner that was inconsistent with the priorinformation.In addition, the evidence

at the habeas trial established only that Berke could

not recall whether he had discussed accessorial liability

with the petitioner.

As defense counsel is presumed to have rendered

adequate assistance unless deficient performance is

affirmatively proven, the petitioner in the present case

has failed to rebut this strong presumption with credible

evidence. See Sanders v. Commissioner of Correction,

83 Conn. App. 543, 551, 851 A.2d 313, cert. denied, 271

Conn. 914, 859 A.2d 569 (2004). Because the petitioner

failed to establish that Berke rendered deficient performance, his ineffective assistance of counsel claim fails.

We thus conclude that the petitioner failed to demonstrate that his claim of ineffective assistance of counsel

with respect to Berke’s performance pertaining to

accessorial liability involved issues that are debatable

amongst jurists of reason, that a court could resolve

the issue in a different manner, or that the issue is

adequate to deserve encouragement to proceed further.

We, therefore, further conclude that the habeas court

did not abuse its discretion in denying the petition for

certification to appeal with respect to this claim.

II
The petitioner finally claims that the habeas court

abused its discretion in denying his petition for certification to appeal because it improperly denied his claim

of ineffective assistance of counsel with respect to

DeSantis’ performance during the first habeas trial. As

previously noted, to determine whether the habeas

court abused its discretion in denying the petition for

certification to appeal, this court will look at the underlying merits of the petitioner’s claims. See Bozelko v.

Commissioner of Correction, supra, 162 Conn. App.

721. As set forth in count one of the operative petition,

the only allegation of deficient performance as to

DeSantis is his failure to raise the issue of Berke’s

ineffective assistance during the plea process. Therefore, the sole claim on appeal against DeSantis is the

petitioner’s allegation that he provided ineffective assistance of counsel during the petitioner’s first habeas

trial, by failing to raise the issue of the ineffective assistance of Berke.

When a petitioner challenges the habeas court’s

denial of his operative petition on the basis of ineffective assistance of both his first habeas counsel and

his criminal defense counsel, the petitioner must prove

both that (1) his habeas counsel was ineffective and

(2) his criminal defense counsel was ineffective.

Lapointe v. Commissioner of Correction, supra, 113

Conn. App. 394. Therefore, we are ‘‘mindful that the

petitioner’s [claim] related to his habeas counsel must

fail if [his] claims of ineffective assistance of [his criminal defense] counsel are unavailing.’’ Id., 395.

As we previously concluded in part I of this opinion,

the petitioner failed to establish his claim of ineffective

assistance of Berke. Therefore, the petitioner cannot

establish that DeSantis’ performance was deficient in

failing to raise the claim of ineffective assistance as to

Berke in the petitioner’s first habeas corpus proceeding

because the petitioner did not establish the underlying

claim on which that claim is predicated, i.e., that Berke’s

representation constituted ineffective assistance.

We thus conclude that the petitioner failed to demonstrate that his claim of ineffective assistance of counsel

with respect to DeSantis involved issues that are debatable amongst jurists of reason, that a court could

resolve the issue in a different manner, or that the

issue is adequate to deserve encouragement to proceed

further. We, therefore, conclude that the habeas court

did not abuse its discretion in denying the petition for

certification to appeal with respect to this claim.

The appeal is dismissed.

In this opinion the other judges concurred.

1 The petitionerfiled his first habeas petition alleging ineffective assistance

of his defense counsel, Robert Berke, concerning Berke’s failure to file a

‘‘motion to suppress suggestive identification of prosecution’s chief witness’’

and claiming that the communication between Berke and the petitioner fell

below the standard of what a reasonable attorney would have exercised
under similar circumstances. Following a trial, the habeas court denied the

petition. The petitioner appealed from that denial, and we dismissed the

appeal. Sanders v. Commissioner of Correction, 118 Conn. App. 905, 984

A.2d 122 (2009). On August 2, 2010, the petitioner filed a second habeas

petition, but that was withdrawn on November 6, 2012.

2 The petitioner also claims that his state and federal rights to due process

of law were violated when Berke failed to properly advise him concerning

the plea offer and accessory liability, and when DeSantis failed to raise the

issue of ineffective assistance of counsel concerning Berke’s performance.

In turn, the respondent, the Commissioner of Correction, in relying on Davis

v. Commissioner of Correction, 160 Conn. App. 444, 455–56, 124 A.3d 992,

cert. denied, 319 Conn. 957, 125 A.3d 1012 (2015), contends that the petitioner’s due process claim is unreviewable because the habeas court neither

considered nor ruled on the merits of that claim and the petitioner failed

to obtain a ruling on it. See id. (declining to review claim when habeas

court neither considered nor ruled on it and petitioner failed to alert the

habeas court that ruling was inaccurate or incomplete). In the alternative,

the respondent further argues that the petitioner also cannot obtain [review

under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as

modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015)] of

this unpreserved constitutional claim because it arises out of the criminal

trial proceedings, and not the acts or omissions of the habeas court. See

Mozell v. Commissioner of Correction, 291 Conn. 62, 67 n.2, 967 A.2d 41

(2009) (Golding review available only where petitioner challenges actions

of habeas court). We agree with the respondent.

We also are not persuaded by the petitioner’s argument that his due

process claim should be reversed pursuant to the plain error doctrine;

see Practice Book § 60-5; or this court’s supervisory authority over the

administration of justice. See Lacks v. Commissioner of Correction, 87

Conn. App. 225, 234, 866 A.2d 660, cert. denied, 273 Conn. 922, 871 A.2d

1027 (2005). We disagree.

Pursuant to our case law, a habeas petitioner cannot establish that the

court abused its discretion in denying certification on issues not raised in

the petition for certification to appeal. Kowalyshyn v. Commissioner of

Correction, 155 Conn. App. 384, 389, 109 A.3d 963, cert. denied, 316 Conn.

909, 111 A.3d 883 (2015). Accordingly, as the petitioner’s due process claim

was raised in count two of his operative petition, the record does not provide

any evidence that the habeas court determined and ruled on this claim. The

petitioner stated his grounds for his request for certification to appeal as

follows: ‘‘Whether [the] habeas court erred when it found that trial counsel

was not ineffective when he discussed the strengths [and] weaknesses of

the state’s case but did not advise the petitioner whether he should accept

or reject the state’s plea offer . . . [and] such other claims of error found

after a complete review of the record.’’ Therefore, ‘‘[b]ecause the petitioner

failed to raise [his due process claim] in his petition for certification’’ to

appeal; Kowalyshyn v. Commissioner of Correction, supra, 391; we decline

to afford it review.

3 The petitioner also stated as a ground for appeal: ‘‘Such other claims of

error found after a complete review of the record.’’ This claim, however, is

meaningless because it does not provide the trial judge with notice. ‘‘It is

well established that [w]e do not entertain claims not raised before the

habeas court but raised for the first time on appeal. . . . The purpose of

the [petition] is to put the [respondent, the Commissioner of Correction]

on notice of the claims made, to limit the issues to be decided, and to

prevent surprise.’’(Citation omitted; internal quotation marks omitted.) Hankerson v. Commissioner of Correction, 150 Conn. App. 362, 369, 90 A.3d

368, cert. denied, 314 Conn. 919, 100 A.3d 852 (2014).

4

In Melendez v. Commissioner of Correction, supra, 151 Conn. App. 359,

this court concluded that counsel effectively and reasonably ‘‘provided the

petitioner with adequate information and advice upon which the petitioner

could make an informed decision as to whether he should accept the state’s

initial five year plea offer.’’ With respect to this conclusion, this court noted

that counsel specifically advised the petitioner to accept the plea offer. Id.

5 As found by the first habeas court, ‘‘the petitioner and [Berke] agree

that [Berke] did not recommend specifically the taking of any plea bargain.

. . . Indeed, [Berke] did not recall the specifics of a plea, but that it was

his custom, and in this instance he did not recommend the taking of a plea

and that it was not his custom to recommend pleas one way or the other

but to leave the decision to the client.’’

During the habeas proceeding before Judge Fuger, the following exchange
occurred between the petitioner’s counsel and Berke:

‘‘Q. [A]nd is—is it your practice to advise the client or give him advice

as to whether or not he thinks it’s a good idea to take an offer or a bad

idea to take an offer?

‘‘A. I never do.

‘‘Q. Okay. And could you explain to the court why you do that?

‘‘A. I present them the positive, the negatives of going to trial . . . the

risks of trial, the maximum exposure. I don’t present my opinion on whether

they should take an offer or not. That’s their decision. I’ve always maintained

that that was their decision and not mine. I don’t influence clients on what

decision they make. I do—I do present them, at least from a legal and factual

opinion, the strengths and weaknesses of their case . . . by defense. . . .

‘‘Q. But your job is to give them professional legal advice as to whether

or not they should take the plea or whether or not they should go to trial.

‘‘A. I don’t tell clients to take the plea.’’

6

In the habeas petition, the petitioner in Andrews claimed that ‘‘his trial

counsel provided ineffective assistance by failing to recommend that he

accept the plea offered by the trial court . . . .’’ Andrews v. Commissioner

of Correction, supra, 155 Conn. App. 550. The habeas court, however, found

that the petitioner failed to show that his trial counsel’s advice was deficient.

Id., 551.

7

In addition, the testimony during the first habeas trial provides further

insight into whether it was reasonably probable that such a plea offer would

have been conditionally accepted, as Berke testified that he could not recall

the exact details of the state’s plea offer and that ‘‘the issue of being a

persistent offender [did] not come up until well into the game, the initial

discussions and the pleas discussions did not include any reference that

the state was going to charge him as a persistent offender.’’

8

In the operative petition, the petitioner made no explicit claim of ineffective assistance of counsel as to accessorial liability, which he now raises

on appeal.