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*********************************************** 
RAUL DIAZ v. COMMISSIONER OF CORRECTION

(AC 39651)

Elgo, DiPentima and Bear, Js.

Syllabus

The petitioner, who had been convicted, on a guilty plea, of the crime of

home invasion, sought a writ of habeas corpus, claiming, inter alia, that

his trial counsel had provided ineffective assistance. The habeas court

rendered judgment denying the habeas petition, from which the petitioner, on the granting of certification, appealed to this court. On appeal,

he claimed that the habeas court incorrectly concluded that his trial

counsel’s failure to file a motion to dismiss the home invasion charge,

to which the petitioner had pleaded guilty pursuant to North Carolina

v. Alford (400 U.S. 25), did not constitute ineffective assistance. Held

that the petitioner could not prevail on his claim of ineffective assistance

of counsel, as he failed to demonstrate that he was prejudiced by his

trial counsel’s alleged deficient performance; there was no evidence in

the record showing that, but for his trial counsel’s alleged deficient

performance, the petitioner would have insisted on going to trial, and

there was nothing to indicate that the dismissal of the home invasion

charge would have resulted in any meaningful reduction in the petitioner’s exposure to a lengthy period of incarceration.

Submitted for disposition October 15—officially released November 10, 2020

Procedural History

Amended petition for a writ of habeas corpus,

brought to the Superior Court in the judicial district of

Tolland and tried to the court, Oliver, J.; judgment

denying the petition, from which the petitioner, on the

granting of certification, appealed to this court, DiPentima, C. J., and Elgo and Bear, Js., which affirmed

the habeas court’s judgment, and the petitioner, on the

granting of certification, appealed to the Supreme

Court, which reversed the judgment of this court and

remanded the case to this court for further proceedings. Affirmed.

Deren Manasevit, assigned counsel, for the appellant (petitioner).

Melissa Patterson, assistant state’s attorney, with

whom, on the brief, were Matthew C. Gedansky, state’s

attorney, and David M. Carlucci, assistant state’s attorney, for the appellee (respondent).
Opinion

BEAR, J. This case returns to this court on remand

from our Supreme Court. The petitioner, Raul Diaz,

appeals from the judgment of the habeas court denying

his amended petition for a writ of habeas corpus. The

sole question presented by the petitioner on appeal is

‘‘[d]id the habeas court erroneously conclude that trial

counsel’s failure to file a motion to dismiss the charge of

home invasion did not constitute ineffective assistance

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

S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]?’’ The petitioner

had pleaded guilty to that charge pursuant to the

Alford doctrine.1

This court, however, affirmed the judgment of the

habeas court, after raising, sua sponte, the issue of

whether the petitioner had waived his right to raise a

claim of ineffective assistance of counsel and deciding

that the petitioner did in fact waive that right by pleading guilty under the Alford doctrine. Diaz v. Commissioner of Correction, 185 Conn. App. 686, 689, 198 A.3d

171 (2018), rev’d, 335 Conn. 53, 225 A.3d 953 (2020).

The petitioner then appealed the judgment of this court

to our Supreme Court, alleging that this court ‘‘improperly raised and decided the unpreserved issue of waiver

without first providing the parties with an opportunity

to be heard on that issue . . . .’’ Diaz v. Commissioner

of Correction, 335 Conn. 53, 54, 225 A.3d 953 (2020).

Our Supreme Court granted the petition for certification

to appeal, ‘‘limited to the following issue: ‘Did the Appellate Court properly affirm the judgment of the habeas

court on a legal ground that was not raised or decided

in the habeas court and never raised or briefed by the

parties in the Appellate Court?’ ’’ Id., 57. Our Supreme

Court answered that question in the negative and

remanded the case to this court with the following

rescript: ‘‘The judgment of the Appellate Court is

reversed and the case is remanded to that court for

further proceedings in accordance with this opinion.’’

Id., 62. The rescript of our Supreme Court presents this

court with two possible courses of action. The first is

to proceed ‘‘in a manner . . . consistent with [its] decision in Blumberg [Associates Worldwide, Inc. v.

Brown & Brown of Connecticut, Inc., 311 Conn. 123,

143, 84 A.3d 840 (2014)]’’ with respect to the waiver

issue. Diaz v. Commissioner of Correction, supra, 335

Conn. 61. The second is to decide the petitioner’s appeal

on the basis of his ineffective assistance of counsel

claim, which previously has been briefed and argued

by the parties. We take the latter course of action and

affirm the judgment of the habeas court.

The following factual and procedural background is

relevant to our resolution of the petitioner’s appeal on

remand.2 On October 27, 2011, the petitioner entered

the Ellington home of the seventy-seven year old victim

when the victim was not present. While the petitioner
was still in the home, the victim returned. The petitioner

asked the victim to step aside so that he could flee the

home, but the victim refused. The petitioner then struck

the victim with a jewelry box, which resulted in a laceration on his head, as well as a broken nose and cheekbone. After taking the victim’s wallet and car keys, the

petitioner fled in the victim’s car and later was apprehended.

The petitioner was charged in a substitute information with two counts of home invasion in violation of

General Statutes § 53-100aa,3

two counts of burglary in

the first degree in violation of General Statutes § 53a101 (a) (1) and (2), one count each of larceny in the

third degree in violation of General Statutes § 53a-124,

larceny in the fourth degree in violation of General

Statutes § 53a-125, assault in the second degree in violation of General Statutes § 53a-60b, and robbery in the

first degree involving a dangerous instrument in violation of General Statutes § 53a-134 (a) (3). On April 26,

2013, after the petitioner entered into a plea agreement

with the state, he pleaded guilty under the Alford doctrine to one count of home invasion in violation of

§ 53a-100aa (a) (2). After a thorough canvass, the court

accepted the plea, rendered a judgment of conviction,

and sentenced the petitioner in accordance with the

plea agreement to twenty-five years of imprisonment.

The petitioner did not appeal from the judgment of conviction.

Thereafter, the petitioner commenced this habeas

action. On February 25, 2016, the petitioner filed an

amended petition for a writ of habeas corpus, alleging,

among other claims, that his trial counsel had rendered

ineffective assistance by failing to file a motion to dismiss the home invasion charge on the ground that it

was duplicative of the burglary in the first degree

charge. After a trial, the habeas court denied the petition

for a writ of habeas corpus. In its memorandum of

decision, the court concluded that the petitioner had

failed to establish both that his trial counsel deficiently

performed by not filing a motion to dismiss the home

invasion charge and that there was prejudice to him as

result of trial counsel’s decision not to file such a

motion. The court found that, although the petitioner’s

trial counsel had agreed with the state’s assessment that

the petitioner had violated the home invasion statute,

he nonetheless argued, although unsuccessfully, to the

court and the prosecutor that the home invasion charge

should be dropped and that, in any event, the petitioner

should be allowed to plead to the burglary in the first

degree charge instead of the home invasion charge.

Moreover, the court agreed with the testimony of the

petitioner’s trial counsel that there was no good faith

basis on which to bring a motion to dismiss the home

invasion charge in the trial court. After the court rendered its judgment denying the habeas petition, the

petitioner filed a petition for certification to appeal to
this court, which the habeas court granted.

In addressing the petitioner’s sole claim on appeal,

we first set forth the applicable standard of review.

Although ‘‘[t]he underlying historical facts found by the

habeas court may not be disturbed unless the findings

were clearly erroneous’’; (internal quotation marks

omitted) Mozell v. Commissioner of Correction, 87

Conn. App. 560, 564–65, 867 A.2d 51, cert. denied, 273

Conn. 934, 875 A.2d 543 (2005); ‘‘the effectiveness of

an attorney’s representation of a criminal defendant is

a mixed determination of law and fact that . . .

requires plenary review . . . .’’ (Internal quotation

marks omitted.) Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert.

denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126

S. Ct. 1368, 164 L. Ed. 2d 77 (2006). ‘‘To succeed on

a claim of ineffective assistance of counsel, a habeas

petitioner must satisfy the two-pronged test articulated

in Strickland v. Washington, [supra, 466 U.S. 687].

Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong.’’ (Internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712–13, 946 A.2d 1203, cert. denied

sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481,

172 L. Ed. 2d 336 (2008). When reviewing a claim of

ineffective assistance of counsel, a ‘‘court can find

against a petitioner on either ground, whichever is easier.’’ (Emphasis added.) Valeriano v. Bronson, 209

Conn. 75, 86, 546 A.2d 1380 (1988). To satisfy the prejudice prong of Strickland, ‘‘a claimant must demonstrate

that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.’ ’’ Ledbetter v. Commissioner of Correction, supra, 458, quoting Strickland v.

Washington, supra, 694. However, in the context of a

guilty plea, our Supreme Court has determined that,

‘‘[u]nder the test in Hill [v. Lockhart, 474 U.S. 52, 59,

106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)], in which the

United States Supreme Court modified the prejudice

prong of the Strickland test for claims of ineffective

assistance when the conviction resulted from a guilty

plea, the evidence must demonstrate that there is a

reasonable probability that, but for counsel’s errors,

[the petitioner] would not have pleaded guilty and

would have insisted on going to trial.’’ 4

(Internal quotation marks omitted.) Washington v. Commissioner of

Correction, 287 Conn. 792, 833, 950 A.2d 1220 (2008).

On appeal, the petitioner argues that his trial counsel

provided ineffective assistance by failing to file a motion

to dismiss the home invasion charge to which he had

ultimately pleaded guilty. There was no evidence before

the habeas court, however, showing that, but for his trial

counsel’s alleged deficient performance, the petitioner

would have insisted on going to trial. Furthermore,

there is nothing in the habeas record indicating that

the dismissal of the home invasion charge would have
resulted in any meaningful reduction in the petitioner’s

exposure to a lengthy period of incarceration. The petitioner’s initial exposure was, without enhancements,

eighty-one years. After additional charges were added,

including a second home invasion charge, the petitioner’s exposure became 121 years, without enhancements. As the petitioner himself concedes, ‘‘even without the home invasion charge, [he] was charged with

enough offenses to enable the court to impose what

could effectively be a life long sentence. Removing the

home invasion’s potential . . . sentence . . . would

not have denied the state the significant sentence it

was seeking.’’ For this reason, and because there is no

evidence in the record to establish that, but for his trial

counsel’s allegedly deficient performance, the petitioner would have insisted on going to trial, the petitioner’s claim of ineffective assistance of counsel cannot

succeed because of his failure to demonstrate that he

was prejudiced by any failure of his trial counsel. See

Washington v. Commissioner of Correction, supra, 287

Conn. 833.

This conclusion is further supported by the petitioner’s appellate brief, in which his arguments focus on

the inapplicability of the home invasion statute and the

structure of the plea agreement, instead of on the Hill

requirement that, but for counsel’s deficient performance, he would have insisted on going to trial. Specifically, the petitioner claims in his brief, without any

factual support in the habeas court record, that, but

for his trial counsel’s alleged deficient performance, he

would have ‘‘been afforded the opportunity to plead

guilty to . . . a class B felony carrying a minimum sentence of five years rather than a class [A] felony carrying

a minimum sentence of ten years.’’ Thus, even if his

trial counsel had filed a motion to dismiss the home

invasion charge and that motion had been granted, the

petitioner has failed to demonstrate a reasonable probability that he would not have pleaded guilty and would

have insisted on going to trial. Accordingly, the petitioner has failed to satisfy the prejudice prong of the

Hill test, and his claim of ineffective assistance of counsel fails.

The judgment is affirmed.

In this opinion the other judges concurred.

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

162 (1970). ‘‘A defendant who pleads guilty under the Alford doctrine does

not admit guilt but acknowledges that the state’s evidence against him is

so strong that he is prepared to accept the entry of a guilty plea.’’ (Internal

quotation marks omitted.) State v. Webb, 62 Conn. App. 805, 807 n.1, 772

A.2d 690 (2001).

2 The facts are as recited by the state during the plea canvass of the petitioner.

3 The second of the home invasion charges was added by the state immediately prior to the petitioner’s anticipated trial, which did not take place. All

references herein to the home invasion charge are to the first home invasion

charge to which the petitioner pleaded guilty.

4 The petitioner did not mention the Hill prejudice prong in his appellate

brief. The respondent, the Commissioner of Correction, in his appellate
brief, set forth the Hill prejudice prong as the standard to be applied in this

appeal. The petitioner, in his reply brief, did not dispute the applicability

of the Hill prejudice prong to this appeal.