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        PIOTR BUDZISZEWSKI v. CONNECTICUT
         JUDICIAL BRANCH, COURT SUPPORT
             SERVICES DIVISION, ADULT
               PROBATION SERVICES
                    (AC 41867)
                 DiPentima, C. J., and Moll and Flynn, Js.*

                                  Syllabus

The petitioner, a Polish national, sought a writ of habeas corpus, claiming
   that his criminal trial counsel, K, had provided ineffective assistance by
   failing to advise him adequately as to the immigration consequences of
   his plea of guilty to a certain offense that subjected him to deportation.
   After the petitioner entered the guilty plea, federal authorities detained
   him and initiated deportation proceedings against him. The petitioner
   claimed that, if he had been properly advised by K as to the immigration
   consequences of entering a guilty plea, he would not have accepted the
   plea offer. The habeas court rendered judgment denying the habeas
   petition and granted the petition for certification to appeal, and the
   petitioner appealed to this court. Held that the habeas court properly
   concluded that the petitioner was not prejudiced by the advice of his
   attorney, K, regarding the immigration consequences of pleading guilty:
   although the petitioner highlighted the actions that he took subsequent
   to accepting the plea offer, including the motions that he had filed
   contesting his conviction following his guilty plea and the amount of
   money he spent in avoiding deportation, the petitioner’s post hoc asser-
   tions on appeal that he would not have pleaded guilty but for K’s advice
   were insufficient to establish prejudice in light of the absence of substan-
   tial, contemporaneous evidence to support such assertions, the credibil-
   ity determinations made by the habeas court regarding the concerns of
   the petitioner that were contemporaneous to his acceptance of the offer
   support the conclusion that the court credited K’s testimony that the
   length of incarceration, not deportation, was the petitioner’s main con-
   cern, and that the petitioner accepted the plea that would ensure that
   he would spend less than one year in jail, and the court did not credit
   the petitioner’s testimony that he would not have taken the plea deal
   had he known that he would be deported.
           Argued March 12—officially released August 11, 2020

                             Procedural History

   Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, geographical area number nineteen, and tried
to the court, Oliver, J.; judgment denying the petition,
from which the petitioner, on the granting of certifica-
tion, appealed to this court. Affirmed.
   Vishal K. Garg, for the appellant (petitioner).
   Ronald G. Weller, senior assistant state’s attorney,
with whom, on the brief, were Patrick Griffin, state’s
attorney, and Adrienne Russo, assistant state’s attor-
ney, for the appellee (respondent).
                           Opinion

   FLYNN, J. The petitioner, Piotr Budziszewski,
appeals from the judgment of the habeas court denying
his petition for a writ of habeas corpus. The petitioner
claims on appeal that the habeas court improperly
rejected his claim that his right to effective assistance
of counsel was violated by his criminal trial counsel’s
failure to properly advise him of the immigration conse-
quences of entering a guilty plea. We disagree and,
accordingly, affirm the judgment of the habeas court.
    At the center of this case is the effect that federal
law has on aliens provided lawful permanent residence
in the United States who commit an ‘‘aggravated fel-
ony.’’ Pursuant to 8 U.S.C. § 1227 (a) (2) (A) (iii), ‘‘[a]ny
alien who is convicted of an aggravated felony at any
time after admission is deportable.’’ Illicit trafficking in
a controlled substance is listed in 8 U.S.C. § 1101 (a)
(43) (B) as an ‘‘aggravated felony.’’ (Internal quotation
marks omitted.) The term ‘‘controlled substance’’ under
federal law includes ‘‘a drug or other substance, or
immediate precursor, included in schedule I, II, III, IV,
or V of part B of this subchapter [21 U.S.C. § 812].’’
(Internal quotation marks omitted.) 21 U.S.C. § 802 (6)
(2018). Included in the schedules of 21 U.S.C. § 812
are opium derivatives. The petitioner was arrested for
selling Roxicodone, an opium derivative, and entered
a guilty plea pursuant to General Statutes (Rev. to 2011)
§ 21a-277 (a). In Gousse v. Ashcroft, 339 F.3d 91, 93 (2d
Cir. 2003), the United States Court of Appeals for the
Second Circuit held that Gousse’s conviction under
§ 21a-277 (a) for selling a ‘‘controlled substance’’ to an
undercover police officer constituted a conviction for
‘‘illicit trafficking in a controlled substance’’ under 8
U.S.C. § 1101 (a) (43) (B), which is a removable ‘‘aggra-
vated felony’’ under the Immigration and Nationality
Act, 8 U.S.C. § 1101 et seq. (2018). The first habeas
court determined, and the second habeas court agreed,
that the petitioner’s conviction qualified as an aggra-
vated felony under federal immigration law and that
no exception or exclusion applied, thus making the
petitioner subject to deportation.
  At the outset, we note that the United States Supreme
Court in ‘‘Padilla [v. Kentucky, 559 U.S. 356, 130 S. Ct.
1473, 176 L. Ed. 2d 284 (2010)] held that before an alien
criminal defendant pleads guilty to a criminal offense
for which he is subject to deportation, his defense attor-
ney must advise him of the deportation consequences
of his plea and resulting conviction. On that score, the
Supreme Court concluded that because deportation is
such a great, life-altering consequence of a criminal
conviction, an alien defendant’s plea of guilty to a
deportable offense without knowledge of that conse-
quence cannot be considered a knowing and intelligent
waiver of his right not to be convicted of that offense
unless his guilt is established beyond a reasonable
doubt at a full, fair adversary trial.’’ Guerra v. State,
150 Conn. App. 68, 72–73, 89 A.3d 1028, cert. denied,
314 Conn. 903, 99 A.3d 1168 (2014).
   The following facts and procedural history, as set
forth by the habeas court, are relevant. ‘‘The petitioner,
a Polish national who became a lawful permanent resi-
dent of the United States after emigrating here in 2001,
was arrested on various drug charges after selling nar-
cotics on two occasions to undercover police officers
in January, 2011. The petitioner was charged with two
counts of selling narcotics by a person who is not drug-
dependent in violation of General Statutes § 21a-278
(b), and two counts of possession of a narcotic sub-
stance with intent to sell in violation of General Statutes
§ 21a-279 (a). The petitioner faced a minimum sentence
of five years of incarceration with a maximum term of
twenty years. Attorney Gerald Klein represented the
petitioner at all relevant times.
  ‘‘On January 24, 2012, the petitioner entered a guilty
plea to one count of possession of a controlled sub-
stance with intent to sell in violation of General Statutes
[Rev. to 2011] § 21a-277 (a). This offense carried no
mandatory minimum period of incarceration. During
plea negotiations, the state agreed to a sentence recom-
mendation of five years of incarceration, execution sus-
pended after no more than one year, followed by three
years of probation, with the right to argue for less. The
court, Scarpellino, J., canvassed the petitioner when
he entered his guilty plea . . . .
   ‘‘On May 2, 2012, the court . . . sentenced the peti-
tioner to five years of incarceration, execution sus-
pended after ninety days, and two years of probation.
The petitioner was released from custody after serving
forty-five days of incarceration. Thereafter, federal
authorities detained the petitioner and began proceed-
ings to remove him from the country. A final order of
deportation has been entered against the petitioner, and
he has exhausted all appeals from that order.
   ‘‘The petitioner initiated the present habeas petition
on September 11, 2013. In his amended petition, filed
on October 28, 2013, the petitioner set forth ineffective
assistance of counsel claims as to trial counsel’s failure
to advocate for the petitioner’s admission into a drug
treatment program, and failure to adequately research
and advise the petitioner of the immigration conse-
quences of his guilty plea as required by Padilla v.
Kentucky, [supra, 559 U.S. 356]. . . . The habeas court,
Newson, J., granted the petitioner’s petition and
ordered that his conviction be vacated. The respondent
[the Commissioner of Correction] appealed the deci-
sion, and [our] Supreme Court [in Budziszewski v.
Commissioner of Correction, 322 Conn. 504, 518, 142
A.3d 243 (2016)], reversed the habeas court’s judgment
and remanded the case back to the habeas court for a
new trial in which the habeas court must make findings
of fact about what [Attorney] Klein actually told the
petitioner and then assess whether, based on those
findings, the petitioner has proven that [Attorney]
Klein’s advice violated the requirements of Padilla, as
clarified by our [Supreme Court’s] decision in [Budzis-
zewski v. Commissioner of Correction, supra, 504].’’
(Footnote omitted; internal quotation marks omitted.)
   On remand, the habeas court denied the petition and
concluded both that the petitioner had failed to estab-
lish that Klein’s advice constituted deficient perfor-
mance and had failed to prove that he was prejudiced
by Klein’s advice. The court granted the petitioner’s
petition for certification to appeal. This appeal
followed.
   We begin with the applicable legal principles. ‘‘The
[ultimate] conclusions reached by the [habeas] court
in its decision [on a] habeas petition are matters of
law, subject to plenary review. . . . [When] the legal
conclusions of the court are challenged, [the reviewing
court] must determine whether they are legally and
logically correct . . . and whether they find support
in the facts that appear in the record. . . . To the extent
that factual findings are challenged, this court cannot
disturb the underlying facts found by the habeas court
unless they are clearly erroneous. . . . [A] finding of
fact is clearly erroneous when there is no evidence in
the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed. . . . A
reviewing court ordinarily will afford deference to those
credibility determinations made by the habeas court on
the basis of [the] firsthand observation of [a witness’]
conduct, demeanor and attitude.’’ (Internal quotation
marks omitted.) Noze v. Commissioner of Correction,
177 Conn. App. 874, 885–86, 173 A.3d 525 (2017).
   ‘‘In Strickland v. Washington, 466 U.S. 668, [687], 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States
Supreme Court enunciated the two requirements that
must be met before a petitioner is entitled to reversal
of a conviction due to ineffective assistance of counsel.
First, the [petitioner] must show that counsel’s perfor-
mance was deficient. . . . Second, the [petitioner]
must show that the deficient performance prejudiced
the defense. . . . Unless a [petitioner] makes both
showings, it cannot be said that the conviction . . .
resulted from a breakdown in the adversarial process
that renders the result unreliable.’’ (Internal quotation
marks omitted.) Santiago v. Commissioner of Correc-
tion, 90 Conn. App. 420, 424–25, 876 A.2d 1277, cert.
denied, 275 Conn. 930, 883 A.2d 1246 (2005), cert. denied
sub nom. Santiago v. Lantz, 547 U.S. 1007, 126 S. Ct.
1472, 164 L. Ed. 2d 254 (2006).
  ‘‘To satisfy the prejudice prong, the petitioner had
the burden to show that, absent counsel’s alleged failure
to advise him in accordance with Padilla, he would
have rejected the state’s plea offer and elected to go
to trial. See Hill v. Lockhart, [474 U.S. 52, 59, 106 S. Ct.
366, 88 L. Ed. 2d 203 (1985)]. In evaluating whether
the petitioner had met this burden and evaluating the
credibility of the petitioner’s assertions that he would
have gone to trial, it was appropriate for the court to
consider whether a decision to reject the plea bargain
would have been rational under the circumstances.’’
(Internal quotation marks omitted.) Flomo v. Commis-
sioner of Correction, 169 Conn. App. 266, 279–80, 149
A.3d 185 (2016), cert. denied, 324 Conn. 906, 152 A.3d
544 (2017).
   On appeal, the petitioner claims that the habeas court
improperly concluded that he had not proven either
prong of Strickland. Because we conclude that the peti-
tioner cannot prevail on his claim that the court improp-
erly concluded that he was not prejudiced by Klein’s
advice regarding the immigration consequences of
pleading guilty, we need not address his claim regarding
Strickland’s deficiency prong. ‘‘It is well settled that
[a] reviewing court can find against a petitioner on
either ground . . . . [A] court need not determine
whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant.’’
(Citations omitted; emphasis omitted; internal quota-
tion marks omitted.) Small v. Commissioner of Correc-
tion, 286 Conn. 707, 713, 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).
   We begin our analysis of the petitioner’s claim with
an overview of Lee v. United States,       U.S.     , 137
S. Ct. 1958, 198 L. Ed. 2d 476 (2017). In Echeverria v.
Commissioner of Correction, 193 Conn. App. 1, 218
A.3d 1116, cert. denied, 333 Conn. 947, 219 A.3d 376
(2019), this court summarized Lee as follows: ‘‘In Lee,
the defendant, a lawful permanent resident from South
Korea, appealed from the denial of his motion to vacate
his conviction, claiming that he had received ineffective
assistance of counsel due to his defense counsel’s fail-
ure to advise him of the immigration consequences of
his guilty plea pursuant to Padilla. . . . It was undis-
puted that defense counsel deficiently performed
because the defendant was erroneously advised that he
would not be deported as a result of pleading guilty
to possession of ecstasy with intent to distribute, an
aggravated felony. . . . As a result, the sole issue on
appeal was whether the defendant had been prejudiced
by his defense counsel’s deficient performance. . . .
  ‘‘The court recognized that a criminal defendant who
faces deportation as a consequence of his or her guilty
plea may instead insist on proceeding to trial even if the
chances of success are remote because there remains
a possibility at trial that the defendant will be acquitted
and will not face the onerous punishment of deporta-
tion. . . . Nevertheless, the court emphasized that a
post hoc assertion that an individual would not have
pleaded guilty but for his or her attorney’s deficient
performance was not enough to establish prejudice
absent contemporaneous evidence to support such an
assertion. . . .
   ‘‘The court determined that the defendant’s claim that
he would not have accepted the plea agreement had he
known that it would lead to deportation was ‘backed
by substantial and uncontroverted evidence.’ [Lee v.
United States, supra, 1969]. The court further explained
that ‘[i]n the unusual circumstances of this case,’ the
defendant adequately demonstrated a reasonable prob-
ability that he would not have pleaded guilty had he
known that it would lead to mandatory deportation and
that he instead would have proceeded to trial. . . . To
support its conclusion, the court stated that there was
‘no question’ that deportation was the determinative
issue in the defendant’s decision to enter a guilty plea.
. . . The court noted that the defendant repeatedly
asked his attorney if there was any risk of deportation,
both the defendant and his attorney testified at a hearing
on his motion to vacate his conviction that the defen-
dant would have gone to trial had he known about the
deportation consequences associated with his guilty
plea, and that the defendant, when asked during his
plea canvass if the possibility that he could be deported
affected his decision to plead guilty, answered in the
affirmative and only proceeded to plead guilty once his
defense counsel assured him that the judge’s question
was a ‘standard warning. . . .’
   ‘‘Additionally, the court recognized that the defen-
dant had strong connections to the United States since
he had lived in the country for three decades and was
caring for his elderly parents, and that the consequences
of taking a chance at trial to avoid deportation were
not significantly harsher than pleading guilty and facing
certain deportation because the defendant faced only
a year or two of additional prison time if he went to
trial as opposed to pleading guilty. . . .
   ‘‘The court concluded ‘[w]e cannot agree that it would
be irrational for a defendant in [the defendant’s] posi-
tion to reject the plea offer in favor of trial. But for his
attorney’s incompetence, [the defendant] would have
known that accepting the plea agreement would cer-
tainly lead to deportation. Going to trial? Almost cer-
tainly. If deportation were the ‘determinative issue’ for
an individual in plea discussions, as it was for [the
defendant]; if that individual had strong connections to
this country and no other, as did [the defendant]; and
if the consequences of taking a chance at trial were not
markedly harsher than pleading, as in this case, that
[almost certainty of being deported] could make all
the difference.’ ’’ (Citations omitted; emphasis omitted.)
Echeverria v. Commissioner of Correction, supra, 193
Conn. App. 12–14. We see a critical factual distinction
in the petitioner’s case from that presented in Lee.
Unlike in Lee, in the present case, the petitioner’s trial
counsel did not concede that he had improperly advised
the petitioner, but did testify that the petitioner was
more concerned about going to jail than with deporta-
tion. Furthermore, the habeas court found that the peti-
tioner failed to demonstrate that he would have rejected
the plea agreement and that he had been prejudiced by
Klein’s advice.
  The petitioner argues that there was a reasonable
probability that he would not have accepted the plea
offer if he had been properly advised. He contends that
he had compelling reasons to avoid deportation because
his entire family lives in the United States, he has no
family or friends in Poland who would help him rebuild
his life there, and he and his mother are the only caregiv-
ers for his elderly grandmother. He also contends that
the following actions demonstrate his preference to
avoid deportation: filing a motion to vacate his guilty
plea, filing a petition for a writ of habeas corpus, and
spending more than $60,000 to vacate his conviction or
otherwise avoid removal.
   Although the petitioner highlights the actions that
that he took subsequent to his acceptance of the plea
offer, the credibility determinations made by the habeas
court regarding the concerns of the petitioner that were
contemporaneous to his acceptance of the offer support
the conclusion that the petitioner has not prevailed
under Strickland’s prejudice prong. The habeas court
made the following relevant credibility determinations.
‘‘The record in the present case . . . does not support
a finding that deportation was the determinative factor
in the petitioner’s decision to plead guilty. Attorney
Klein testified credibly that length of incarceration was
the petitioner’s main concern, and that counsel seemed
more concerned with potential immigration conse-
quences than the petitioner. Attorney Klein further testi-
fied that the petitioner had never been to jail, and the
mandatory five year minimum sentence he faced
weighed heavily in his decision to accept the plea offer.
Attorney Klein further testified that he discussed with
the petitioner that the state had a strong case involving
the petitioner’s sale of narcotics on more than one occa-
sion to undercover police officers. Moreover, the peti-
tioner’s own mother testified at the habeas trial that
her son was very concerned and stressed about the
possibility of going to jail, and that the two discussed
it nearly every day.
  ‘‘The court does not credit the petitioner’s testimony
that he would have not taken the plea deal had he
known he would be deported. The record demonstrates
that the petitioner’s primary concern was length of
incarceration, not deportation. The petitioner accepted
a plea deal guaranteeing that he would serve no more
than a year in jail when he was facing a mandatory
minimum sentence of five years with a maximum expo-
sure of twenty years of incarceration. There was no
evidence presented of an available offer to the peti-
tioner that would have avoided or mitigated the immi-
gration consequences. In light of the foregoing, the deci-
sion to reject the plea bargain would not have been
rational under the circumstances. The court finds that
the petitioner failed to adequately demonstrate a rea-
sonable probability that he would have rejected the
plea, and therefore failed to establish that he was preju-
diced by counsel’s advice.’’
   The habeas court credited Klein’s testimony that the
length of incarceration, not deportation, was the peti-
tioner’s main concern and that he accepted the plea
that would ensure that he would spend less than one
year in prison.1 The court did not credit the petitioner’s
testimony that he would have taken the plea deal had
he known he would be deported. We cannot overturn
the court’s credibility determinations on appeal. ‘‘The
habeas judge, as the trier of facts, is the sole arbiter of
the credibility of witnesses and the weight to be given
to their testimony. . . . Appellate courts do not sec-
ond-guess the trier of fact with respect to credibility.’’
(Citation omitted; internal quotation marks omitted.)
Necaise v. Commissioner of Correction, 112 Conn. App.
817, 825–26, 964 A.2d 562, cert. denied, 292 Conn. 911,
973 A.2d 660 (2009). ‘‘It is simply not the role of this
court on appeal to second-guess credibility determina-
tions made by the habeas court.’’ Flomo v. Commis-
sioner of Correction, supra, 169 Conn. App. 280–81.
   The petitioner argues in his brief that he has ties to
the United States. That, however, is only one factor and
is not in itself dispositive. See Echeverria v. Commis-
sioner of Correction, supra, 193 Conn. App. 17 n.9. The
petitioner highlights the motions he filed contesting his
conviction following his guilty plea and the amount of
money that he spent in avoiding deportation. Because
the petitioner’s primary concern was prison time, and
not deportation, then, according to the rationale of Lee,
the petitioner’s post hoc assertions on appeal that he
would not have pleaded guilty but for Klein’s advice
are insufficient to establish prejudice in light of the
absence of substantial, contemporaneous evidence to
support such assertions.
   The petitioner further argues that the court’s analysis
of whether he would have pleaded guilty was based
largely on its conclusion that Klein’s performance in
advising the petitioner was not deficient. He contends
that if we conclude that the court failed to properly
advise the petitioner concerning the immigration conse-
quences of entering a guilty plea, we should remand
the case for the habeas court to make a determination
on prejudice. We find no merit in this argument. When
a habeas court determines that neither prong of Strick-
land is satisfied, that does not necessarily mean that
the analysis of the prejudice prong is intertwined with
the analysis regarding deficient performance. Rather,
Strickland is clear that there are two prongs to an
analysis of an ineffective assistance of counsel claim,
and subsequent case law, such as Hill and Lee, set
forth the parameters of a prejudice analysis under the
circumstances in the present case. The court’s prejudice
analysis was based properly on this correct law. Fur-
thermore, our case law permits us to decide a case
by affirming a court’s decision on prejudice without
examining the deficiency prong. See, e.g., Small v. Com-
missioner of Correction, supra, 286 Conn. 713. ‘‘It is
well settled that [a] reviewing court can find against a
petitioner on either ground, whichever is easier.’’
(Emphasis omitted; internal quotation marks omitted.)
Id. ‘‘Although a petitioner can succeed only if he satis-
fies both prongs, a reviewing court can find against a
petitioner on either ground.’’ Breton v. Commissioner
of Correction, 325 Conn. 640, 669, 159 A.3d 1112 (2017).
Accordingly, because we determined that the habeas
court properly concluded that the petitioner has not
satisfied Strickland’s prejudice prong, our analysis
properly may end there.
   For the foregoing reasons, we conclude that the
habeas court on remand properly determined that the
petitioner had not established prejudice. Accordingly,
we conclude that the court properly denied the petition-
er’s petition for a writ of habeas corpus.
   The judgment is affirmed.
   In this opinion the other judges concurred.
   * The listing of judges reflects their seniority status on this court as of
the date of oral argument.
   1
     In addition to the time in jail that the petitioner was facing for the
multiple drug charges, some of which were dropped as part of the plea
bargain, he was also exposed to additional jail time for larceny in the first
degree by virtue of his conviction of the drug felony. As part of the record
before the court, Klein testified at the hearing on remand that the petitioner
had been charged with larceny in the first degree. The petitioner was granted
accelerated rehabilitation for this offense on January 13, 2011, for a period
of two years until January 8, 2013. As part of his accelerated rehabilitation,
the defendant paid more than $17,000 in restitution. Klein further testified
that the petitioner was arrested on the present charges in February, 2011,
only a short time after receiving accelerated rehabilitation. Pursuant to
General Statutes § 54-56e (f), a defendant who receives accelerated rehabili-
tation and who satisfactorily completes the period of probation is entitled
to a dismissal of the criminal charges. See State v. Jerzy G., 183 Conn. App.
757, 767, 193 A.3d 1215, cert. denied, 330 Conn. 932, 194 A.3d 1195 (2018).
   Accordingly, a petitioner who commits another felony after having
received accelerated rehabilitation risks violating his probation, prosecution
being recommenced, and the dismissal of the felony charge for which he was
granted accelerated rehabilitation being denied for failure to satisfactorily
complete probation pursuant to § 54-56e (f). According to General Statutes
§ 53a-122 (c), ‘‘[l]arceny in the first degree is a class B felony.’’ General
Statutes § 53a-35a provides in relevant part that ‘‘the sentence of imprison-
ment shall be a definite sentence and, unless the section of the general
statutes that defines or provides the penalty for the crime specifically pro-
vides otherwise, the term shall be fixed by the court as follows . . . (6)
For a class B felony other than manslaughter in the first degree with a
firearm under section 53a-55a, a term not less than one year nor more than
twenty years. . . .’’ According to 8 U.S.C. § 1227 (a) (2) (A) (iii), ‘‘[a]ny alien
who is convicted of an aggravated felony at any time after admission is
deportable.’’ According to 8 U.S.C. § 1101 (a) (43) (G), the definition of
‘‘aggravated felony’’ includes ‘‘a theft offense (including receipt of stolen
property) or burglary offense for which the term of imprisonment [is] at
least one year. . . .’’ (Footnote omitted; internal quotation marks omitted.)
