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      DAVIS v. COMMISSIONER OF CORRECTION—DISSENT

   ESPINOSA, J., with whom ZARELLA, J., joins, dis-
senting. 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 recommenda-
tion 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 peti-
tioner’s ineffective assistance of counsel claim. I dis-
agree with the majority for two reasons. First, the
majority ascribes a meaning to defense counsel’s state-
ment, 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] . . . every-
one in town carries a gun. . . . [I]t’s a very sad, sad sit-
uation.’’
   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 never tell
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) report reflected
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 every-
body 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 appar-
ent 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 require-
ment 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. Specifi-
cally, 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 recom-
mendation of the prosecutor, but that he failed to pre-
sent any argument in mitigation. That distinction
renders Cronic inapplicable to the facts of the pres-
ent case.
   In Cronic, decided on the same day as Strickland,
the United States Supreme Court laid out three ‘‘circum-
stances 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 compe-
tent 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 circum-
stances, 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 pros-
ecutor’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 cir-
cumstances 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 with-
drew. 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 preju-
diced 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 set forth 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 presump-
tion 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 preju-
dice inapplicable, despite defense counsel’s: failure to
review relevant materials provided by government and
to interview any witnesses besides defendant; submis-
sion of open-ended questions on cross-examination;
lack of familiarity with rules of evidence and federal
subpoena process; and failure to litigate or seek recon-
sideration 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 argu-
ment, 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 com-
parison 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 con-
trary, that the record demonstrates that defense counsel
failed to subject the prosecution’s case to what he
believed would have been meaningless adversarial test-
ing. 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 prej-
udice 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 coun-
sel’s testimony at the habeas trial, the majority’s conclu-
sion that his failure to present an argument at the
petitioner’s sentencing hearing constituted a failure to
subject the 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 sen-
tencing hearing, and the fragility of which was made
apparent by the emotionally charged sentencing hear-
ing 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 sen-
tence 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 Stat-
utes § 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 com-
pleted, and provided to defense counsel. Contrary to
his original representations to defense counsel, the peti-
tioner 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 convic-
tions for assault, felony larceny, sale of narcotics, fail-
ure 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 sen-
tence of forty-five years. See General Statutes § 53a-
35a (5) and (8); General Statutes § 29-37 (6). The infor-
mation in the PSI report made the basis of that recom-
mendation 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 legiti-
mately 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, com-
monly known as PCP, several times every day for years,
a habit that he supported by selling cocaine.
   The petitioner also lacked stable connections to fam-
ily. 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 enor-
mity 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 for the 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 deci-
sion based on what it knew . . . .’’ Defense counsel
also stated: ‘‘Nothing I could have said under the cir-
cumstances 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. Wash-
ington, supra, 466 U.S. 695–96. The PSI report 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 pre-
sented 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. Accord-
ingly, 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 circum-
stance 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 cate-
gory.’’ (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 pro-
cess 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 perfor-
mance 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.
