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           DONALD FIELDS v. COMMISSIONER
                  OF CORRECTION
                     (AC 39674)
                      Lavine, Sheldon and Harper, Js.

                                  Syllabus

The petitioner sought a writ of habeas corpus, claiming that his trial counsel
   had provided ineffective assistance by failing to advise him of a plea
   offer of the state for the petitioner to resolve the charges against him
   by pleading guilty to the crime of felony murder in exchange for a
   recommended sentence of twenty-five years imprisonment. At the
   habeas trial, the petitioner testified that he would have accepted the plea
   offer had trial counsel conveyed it to him. The habeas court rendered
   judgment denying the habeas petition, concluding that, although coun-
   sel’s performance had been deficient, the petitioner failed to prove
   that such deficient performance had prejudiced him. In reaching its
   conclusion, the court first rejected the petitioner’s testimony that he
   would have accepted the plea offer and then specifically found that he
   would have rejected it had trial counsel conveyed it to him. Thereafter,
   on the granting of certification, the petitioner appealed to this court,
   claiming that the habeas court erred in concluding that he had not been
   prejudiced by trial counsel’s deficient performance. Held that the habeas
   court correctly concluded that the petitioner had failed to prove that
   he was prejudiced by his trial counsel’s deficient performance, the peti-
   tioner having failed to establish a reasonable probability that, had trial
   counsel conveyed the subject plea offer to him, he would have accepted
   it: the habeas court’s credibility determination rejecting the petitioner’s
   testimony that he would have accepted the plea offer had counsel con-
   veyed it to him was sufficient to support the court’s conclusion that the
   petitioner had failed to prove prejudice, as the court found that the
   testimony was self-serving, that it was the only evidence in the record
   indicating that the petitioner would have accepted the plea offer, and
   that what the petitioner would do at the time of the hearing, knowing
   the outcome of his trial, was different from what he would have done
   at the time of his sentencing, and it was not the role of this court on
   appeal to second-guess the habeas court’s credibility determination;
   moreover, contrary to the petitioner’s assertion, the habeas court’s credi-
   bility determination was distinct from its affirmative finding that the
   petitioner would have rejected the plea offer had it been conveyed to him.
     Argued November 13, 2017—officially released February 6, 2018

                            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, Bright, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
  Stephen A. Lebedevitch, assigned counsel, for the
appellant (petitioner).
  Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Eva B. Lenczewski, supervisory assistant
state’s attorney, for the appellee (respondent).
                          Opinion

   HARPER, J. The petitioner, Donald Fields, appeals
from the judgment of the habeas court denying his
amended petition for a writ of habeas corpus, in which
he collaterally challenged his thirty year sentence for
felony murder on the ground of ineffective assistance
of counsel. In his petition, the petitioner claimed that
his trial counsel, John Paul Carroll, rendered ineffective
assistance by failing to advise him before trial of the
state’s offer that he resolve the charges against him
by pleading guilty to felony murder in exchange for a
recommended sentence of twenty-five years to serve.
The habeas court rejected that claim on the ground that,
although Carroll had indeed rendered constitutionally
deficient performance by failing to advise the petitioner
of the state’s twenty-five year plea offer, the petitioner
had not been prejudiced by that deficient performance.
Specifically, the court concluded that he had not
proved, by a fair preponderance of the evidence, that
he would have accepted the offer had Carroll conveyed
it to him.
   On appeal, the petitioner claims that the habeas court
erred in concluding that he had not been prejudiced by
Carroll’s constitutionally deficient performance
because there was no evidence in the record tending
to show that he would not have accepted the offer, and,
thus, the court’s finding to that effect was entirely spec-
ulative.
   Although we are troubled by the facts of this case
concerning Carroll’s deficient performance, we must
keep in mind that, in assessing the habeas court’s find-
ing as to prejudice, ‘‘[i]t is simply not the role of this
court on appeal to second-guess credibility determina-
tions made by the habeas court.’’1 Noze v. Commis-
sioner of Correction, 177 Conn. App. 874, 887,       A.3d
   (2017). Accordingly, on the basis of the court’s credi-
bility based rejection of the petitioner’s claim that he
would have accepted the state’s plea offer had it been
conveyed to him, we affirm the judgment of the
habeas court.
  The court’s memorandum of decision sets forth the
following relevant facts and procedural history. ‘‘The
petitioner was convicted after a jury trial of felony mur-
der in violation of General Statutes § 53a-54c, attempt
to commit robbery in the first degree in violation of
General Statutes §§ 53a-49 (a) (2) and 53a-134 (a) (1),
and conspiracy to commit robbery in the first degree
in violation of General Statutes §§ 53a-48 and 53a-134
(a) (2). The trial court sentenced the petitioner to thirty
years in prison, followed by twenty years of special
parole. The petitioner was represented before and dur-
ing trial by . . . Carroll.
  ‘‘The petitioner appealed his convictions to the
Supreme Court, which affirmed them. State v. Fields,
265 Conn. 184, 827 A.2d 690 (2003). . . . The petitioner
was sixteen at the time of [the] crime and seventeen
at the time of his trial.
   ‘‘The petitioner’s sole claim was tried to the [habeas]
court over two days. The court heard the testimony of
three witnesses: State’s Attorney John Davenport, the
petitioner, and [Carroll].2 The court also received as
exhibits the transcripts from the petitioner’s criminal
trial and sentencing, the presentence investigation
report . . . delivered to the court prior to sentencing,
the mittimus reflecting the petitioner’s sentence, and
the Supreme Court’s decision from the petitioner’s
appeal.’’ (Footnote added.)
   At the habeas trial, the petitioner testified that he
and Carroll never discussed a plea deal from the state,
but that the offer of twenty-five years to serve was
‘‘something that [the petitioner] would have accepted.’’
Throughout his cross-examination, the petitioner iter-
ated that he never asked Carroll about pleading guilty,
but that he did not know he could ask about making
an offer. Moreover, in response to a question about
whether the petitioner would have accepted responsi-
bility in exchange for the plea offer of twenty-five years,
the petitioner testified: ‘‘If I was offered a—a small
amount of time . . . [o]r not a small amount of time,
but somethin[g] and that was what I had to do . . . to
get the time and accept responsibility, yeah, I would
have. If I was offered the offer, I [would have done]
that.’’
   On September 6, 2016, following trial, the court
denied the petition for a writ of habeas corpus. The
court concluded that, although the petitioner had
proved that Carroll’s performance was deficient, he had
not proved that such deficient performance had caused
him prejudice. In reaching that conclusion, the court
first rejected the petitioner’s testimony that he would
have accepted the plea offer of twenty-five years to
serve for felony murder.3 The court then specifically
found that the petitioner would have rejected that plea
offer had Carroll conveyed it to him.4 The court there-
after granted the petitioner’s timely petition for certifi-
cation to appeal. This appeal followed.
  ‘‘A criminal defendant is constitutionally entitled to
adequate and effective assistance of counsel at all criti-
cal 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. . . . It is axiomatic that
the right to counsel is the right to the effective assis-
tance of counsel. . . .
   ‘‘A claim of ineffective assistance of counsel is gov-
erned by the two-pronged test set forth in Strickland
v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984)]. Under Strickland, the petitioner
has the burden of demonstrating that (1) counsel’s rep-
resentation fell below an objective standard of reason-
ableness, and (2) counsel’s deficient performance
prejudiced the defendant because there was a reason-
able probability that the outcome of the proceedings
would have been different had it not been for the defi-
cient performance. . . . An ineffective assistance of
counsel claim will succeed only if both prongs [of
Strickland] are satisfied. . . . It is axiomatic that
courts may decide against a petitioner on either prong
[of the Strickland test], whichever is easier.’’ (Citations
omitted; footnote omitted; internal quotation marks
omitted.) Noze v. Commissioner of Correction, supra,
177 Conn. App. 883–85.
   The sixth and fourteenth amendment right to the
effective assistance of competent counsel is ‘‘a right
that extends to the plea-bargaining process.’’ Lafler v.
Cooper, 566 U.S. 156, 162, 132 S. Ct. 1376, 182 L. Ed.
2d 398 (2012). In cases alleging ineffective assistance
during the plea process, our Supreme Court has held
that to prove the prejudice prong the 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, 307 Conn. 342, 357, 53
A.3d 983 (2012), cert. denied sub nom. Arnone v. Ebron,
569 U.S. 913, 133 S. Ct. 1726, 185 L. Ed. 2d 802 (2013).
Whether the court would have accepted the plea
agreement is governed by an objective standard. Id.,
360; see also McMillion v. Commissioner of Correction,
151 Conn. App. 861, 872, 97 A.3d 32 (2014) (‘‘determina-
tion of prejudice must be made by assessing whether
a reasonable trial judge would have accepted the sen-
tence’’ [internal quotation marks omitted]).
   On appeal, the petitioner asserts that the court erred
in determining that he would not have accepted the
state’s plea offer had Carroll conveyed it to him. The
petitioner argues that the court’s credibility determina-
tion, rejecting his testimony that he would have
accepted the plea had Carroll conveyed it to him, is
closely intertwined with its affirmative finding that the
petitioner would have rejected the plea offer. He further
contends that the affirmative finding is based on pure
speculation, as there is no evidence in the record to
support it, and thus it is clearly erroneous. The respon-
dent, the Commissioner of Correction, asserts that,
after rejecting the petitioner’s testimony that he would
have accepted the plea offer had Carroll conveyed it
to him, the court properly concluded that the petitioner
failed to prove the prejudice prong of the Strickland
test.5 We disagree with the petitioner’s argument that
the court’s affirmative finding is inseparable from its
credibility determination, which led it to reject his testi-
mony that he would have accepted the plea offer. We
thus agree with the respondent that, on the basis of the
court’s credibility determination, the court correctly
determined that the petitioner had failed to prove the
prejudice prong of the Strickland test.6
   ‘‘The habeas judge, as the trier of facts, is the sole
arbiter of the credibility of witnesses and the weight
to be given their testimony. . . . Questions of whether
to believe or to disbelieve a competent witness are
beyond our review.’’ (Citation omitted; internal quota-
tion marks omitted.) Cole v. Commissioner of Correc-
tion, 126 Conn. App. 775, 779, 12 A.3d 1065, cert. denied,
300 Conn. 937, 17 A.3d 473 (2011). ‘‘The [ultimate] con-
clusions 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 conviction that a mis-
take has been committed. . . . A reviewing court ordi-
narily 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, supra,
177 Conn. App. 885–86.
   We conclude that the court’s credibility determina-
tion is distinct from its affirmative finding that the peti-
tioner would have rejected the plea offer for the five
reasons detailed in the memorandum of decision. Our
reading of the memorandum of decision indicates that
the court first rejected the petitioner’s testimony that
he would have accepted the offer for the following
reasons: (1) it was self-serving; (2) it was the only evi-
dence in the record that the petitioner would have
accepted the offer; and (3) because what the petitioner
would do at the time of the hearing, knowing the out-
come of his trial, was different from what he would have
done at the time of his sentencing. This was sufficient
to support the court’s determination that the petitioner
had not established prejudice.
  A review of the record shows no evidence indepen-
dent of the petitioner’s own testimony that he would
have accepted the state’s plea offer had Carroll con-
veyed it to him. In fact, his testimony on that issue was
at most equivocal. For example, in response to the
court’s question on that subject, he testified that if Car-
roll had explained the maximum penalties he was fac-
ing, he thought that he would have ‘‘ended up takin[g]
the twenty-five [years] rather than . . . go to trial.’’
Because, to reiterate, ‘‘[i]t is simply not the role of this
court on appeal to second-guess credibility determina-
tions made by the habeas court’’; Noze v. Commissioner
of Correction, supra, 177 Conn. App. 887; we conclude
that the court properly found that the petitioner did
not establish a reasonable probability that, had Carroll
conveyed the offer, the petitioner would have accepted
it. Thus, the court correctly determined that the peti-
tioner failed to meet the prejudice prong of the Strick-
land test.
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
     The petitioner was sixteen at the time of the crime and seventeen at the
time of trial and sentencing. He had never been prosecuted in the adult justice
system before; his only experience was in juvenile court. The petitioner
was facing a potential sentence of 100 years of imprisonment, and Carroll
deprived him of an opportunity to consider a plea offer of twenty-five years
of imprisonment. Despite Carroll’s deficient performance, we cannot provide
a remedy to the petitioner, as the habeas court discredited the petitioner’s
testimony that he would have accepted the plea offer had Carroll presented
it to him, in part because of the petitioner’s self-interest in having his sen-
tence reduced.
   ‘‘Since Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d
705 (1967), the United States Supreme Court has repeatedly reaffirmed the
principle that an otherwise valid conviction should not be set aside if the
reviewing court may confidently say, on the whole record, that the constitu-
tional error was harmless beyond a reasonable doubt. . . . Despite the
strong interests that support the harmless-error doctrine, the [c]ourt in
Chapman recognized that some constitutional errors require reversal with-
out regard to the evidence in the particular case. . . . Errors that are not
subject to harmless error analysis go to the fundamental fairness of the
trial. . . . Structural [error] cases defy analysis by harmless error standards
because the entire conduct of the trial, from beginning to end, is obviously
affected. . . . Put another way, these errors deprive defendants of basic
protections without which a criminal trial cannot reliably serve its function
as a vehicle for determination of guilt or innocence . . . and no criminal
punishment may be regarded as fundamentally fair.’’ (Citations omitted;
internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 504–505,
903 A.2d 169 (2006). ‘‘It is only for certain structural errors undermining
the fairness of a criminal proceeding as a whole that even preserved error
requires reversal without regard to the mistake’s effect on the proceeding.’’
United States v. Dominguez Benitez, 542 U.S. 74, 81, 124 S. Ct. 2333, 159
L. Ed. 2d 157 (2004). The circumstances of this case leave us questioning
whether this case presents something akin to a structural error. If Carroll
had presented the petitioner with the plea offer, there may have been no
need for the trial at all.
   2
     Throughout Carroll’s testimony, he iterated that he had only ‘‘some vague
recollections of the case.’’ In fact, Carroll testified that he could not recall
the details of the plea offer or whether an offer was even made. Specifically,
Carroll testified that he had ‘‘no independent recollection . . . of any offer
being made’’ and that he did not recall whether the petitioner was interested
in pleading guilty or otherwise disposing of the case without a trial. Carroll
explained that he tries not to influence his clients one way or another
regarding whether to accept a plea offer or go to trial, but that he thought
that he had a ‘‘workable defense for the petitioner.’’ When asked whether
he explained to the petitioner the ‘‘charges, the elements, [and] the proceed-
ings that [the petitioner] could anticipate,’’ however, Carroll testified, ‘‘I
would have to assume I did. Once again, I don’t have any independent
recollection of it.’’
   3
     In its memorandum of decision, the court explained that ‘‘the petitioner
has not proven by a preponderance of the evidence that he would have
accepted the state’s offer had it been conveyed to him. The only evidence
supporting the petitioner’s claim is the petitioner’s testimony. The court
puts little weight in that testimony because of the petitioner’s obvious self-
interest in having his sentence reduced. In addition, while the petitioner,
now over thirty years old, might be inclined to accept a twenty-five year
sentence knowing the outcome of the trial, that is a far cry from what he
would have thought as a seventeen year old prior to trial.’’
   4
     The court detailed the following five reasons to support its affirmative
finding that the petitioner would have rejected the plea offer: ‘‘First, the
petitioner had every reason to believe that while he was exposed to a
potential life sentence, any sentence he would receive, if convicted, would
be towards the lower end of the sentencing range. He was not the shooter
and had cooperated with police by telling them what happened. In fact,
[Davenport] stated at the petitioner’s sentencing that until he saw the peti-
tioner’s [presentence investigation report] he thought the petitioner’s
involvement warranted a sentence close to the minimum of twenty-five years.
   ‘‘Second, [Carroll] advised the petitioner that the case was winnable. Thus,
the petitioner, as a seventeen year old, would have had to weigh a certain
twenty-five year sentence against the possibility of an acquittal and a likely
slightly longer sentence if convicted. The court concludes that under those
circumstances the petitioner would have likely rejected the state’s offer.
   ‘‘Third, the petitioner was not new to the criminal justice system. In
addition to the charges on which he was convicted, he had two other pending
charges, which the state nolled after the petitioner was sentenced. He also
had an extensive juvenile [criminal] history including twelve separate dispo-
sitions between 1997 and 1999. Given his experience, it is unfathomable
that he did not understand that plea negotiations regularly take place in
criminal matters. Consequently, his testimony that he did not know he could
ask his attorney if the state was willing to make an offer was not credible.
His admitted failure to ask [Carroll] about a plea offer only buttresses the
court’s conclusion that he was not interested in pleading guilty.
   ‘‘Fourth, while incarcerated pending trial, the petitioner received a number
of disciplinary tickets for fighting, giving false information, disorderly con-
duct, causing a disruption, and disobeying a direct order. Knowing that such
conduct would reflect badly on him if convicted, the fact that the petitioner
engaged in it nonetheless shows a lack of judgment that would have led
him to reject an offer from the state, even if it was in his best interest to
accept it.
   ‘‘Finally, even when given an opportunity at sentencing to take some
responsibility for his actions and thereby do himself some good with the
court, the petitioner elected not to do so. The court all but pleaded with
the petitioner to say something, but the petitioner chose to remain silent.
Such a position is inconsistent with the petitioner’s claim that he would
have willingly pleaded guilty, accepted responsibility for his role in the
crimes, and agreed to a sentence of twenty-five years to serve.’’
   5
     The respondent maintains that the court’s affirmative finding is not
clearly erroneous, but argues that it is distinct from the court’s credibility
determination. Therefore, we interpret the respondent’s argument to be that
on the basis of the court’s credibility determination alone, we must affirm the
judgment, regardless of what we conclude regarding the affirmative finding.
   6
     Our conclusion is based on the court’s credibility determination and the
reasons provided to support it, specifically, that the petitioner’s testimony
is the only evidence in the record supporting his claim, the petitioner’s
testimony is self-serving, and what the petitioner would do now is different
from what the petitioner would have done at the time of his sentencing.
Because the court’s rejection of the petitioner’s testimony, and its rationale
for doing so, are sufficient to resolve this appeal, we need not decide the
viability of the court’s affirmative finding and the five reasons detailed to
support it.
