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A defendant has a constitutional right to effective assistance of counsel on a guilty plea. Hill v. Lockhart, 474 U.S. 52, 57 (1985); see Copas v. Commissioner, 234 Conn. 139, 153 (1995), overruled in part on other grounds, Washington v. Commissioner, 287 Conn. 792 (2008); Ebron v. Commissioner, 120 Conn. App. 560, 566-67 (2010), rev’d in part on other grounds, 307 Conn. 342 (2012), cert. denied in part on other grounds sub. nom. , Arnone v. Ebron, U.S. , 133 S.Ct. 1726 (2013).
Also, if a guilty plea rests on defense counsel’s advice and that advice was erroneous or not, “within the range of competence demanded of attorneys in criminal cases[,]” McMann v. Richardson, 397 U.S. 759, 771 (1970), the plea may be involuntary, see North Carolina v. Alford, 400 U.S. 25, 31 (1970)(“plea [must] represent a voluntary and intelligent choice among the alternative courses of action”), and, hence, invalid because it is the product of ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. at 56-57.
Evaluation of Ineffective Assistance
In Hill v. Lockhart, supra , 474 U.S. 52, the Supreme Court held that claims of ineffective assistance of counsel on a guilty plea must get evaluated under the Strickland standard. 474 U.S. at 57-59. However, because the claim concerns a plea and not defense counsel’s performance at trial, the Supreme Court modified the prejudice prong by requiring the petitioner to show, “that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” 474 U.S. at 59; see Carraway v. Commissioner, 317 Conn. 594, 599 -600 (2015).
On Strickland’s prejudice prong the petitioner must show that but for counsel’s deficient performance he would have insisted on proceeding to trial; Washington v. Commissioner, 287 Conn. at 835 (“In the context of a guilty plea…to succeed on the prejudice prong the petitioner must demonstrate that, but for counsel’s alleged ineffective performance, the petitioner would not have pleaded guilty and would have proceeded to trial”); see also Crawford v. Commissioner, 285 Conn. 585, 598 (2008); Johnson v. Commissioner, 285 Conn. 556, 576 (2008); D’Amico v. Manson , 193 Conn. 144, 153-57 (1984)(petitioner must allege and prove that but for the misunderstanding, he would not have pleaded guilty).
In deciding whether the petitioner would have gone to trial absent defense counsel’s deficient performance, the habeas court must consider, among other things, whether counsel’s advice or recommendation would differ if counsel had taken the appropriate steps. See Hill, 474 U.S. at 58-59 (“the determination whether the error ‘prejudiced’ the defendant…will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea”); see also Carraway v. Commissioner, 144 Conn. App. 461, 471-77 (2013), appeal dismissed, 317 Conn. 594 (2015).
Whether the trial would have resulted in an outcome more favorable than that produced by the guilty plea is a relevant consideration only insofar as it bears on what defense counsel’s advice would have been or might have been had counsel taken the appropriate steps. See Carraway v. Commissioner, 144 Conn. App. at 474 (“The prospect of an acquittal, or a more favorable sentence after trial, is clearly relevant in considering whether counsel’s advice with respect to a plea offer would have changed had he not performed deficiently; indeed, it may be the single most important consideration”).
What the Petitioner Must Prove
Copas v. Commissioner, supra, 234 Conn. 139, which held that, “the petitioner [must] demonstrate that he would not have pleaded guilty, that he would have insisted on going to trial, and that the evidence that had been undiscovered or the defenses he claims should have been introduced were likely to have been successful at trial[,]” (emphasis added) 234 Conn. at 151, was overruled sub silencio in subsequent Connecticut Supreme court cases. See Washington v. Commissioner, 287 Conn. at 835; Crawford v. Commissioner, 285 Conn. at 598. Thus, the likelihood of success at trial is no longer an element that the habeas petitioner must prove. It is only a consideration insofar as it bears on what counsel’s advice would have been had he or she performed differently. See Carraway, 317 Conn. at 599-600 and n.6; see also Carraway, 144 Conn. App. at 471-77.
A recommendation by defense counsel to plead guilty not preceded by an adequate investigation of the facts and an exploration of the possible defenses constitutes deficient performance under Strickland. See, e.g. Copas, supra, 234 Conn. 139 (counsel deficient because he failed to investigate defendant’s mental illness and to assess viability of mental state defense); cf. Von Moltke v. Gillies, 332 U.S. 708, 721 (1948)(“Prior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered”).
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