Stephenson v. Commissioner of Correction ( 2020 )

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JOSEPH STEPHENSON v. COMMISSIONER
OF CORRECTION
(AC 41812)
Alvord, Devlin and Norcott, Js.
Syllabus
The petitioner, who previously had pleaded guilty to larceny in the fifth
degree and larceny in the sixth degree, sought a writ of habeas corpus,
claiming that his trial counsel rendered ineffective assistance by failing
to accurately advise him about the consequences of pleading guilty
under federal immigration law. The petitioner was ordered removed
from the United States on the basis of the two larceny convictions as well
as a prior conviction of robbery. The habeas court rendered judgment
dismissing the habeas petition as moot, concluding that it could provide
no practical relief because the petitioner did not challenge the robbery
conviction in his amended habeas petition and that conviction was a
separate basis for the petitioner’s ordered removal. Thereafter, the
habeas court granted the petition for certification to appeal, and the
petitioner appealed to this court. Held:
1. The trial court did not improperly dismiss the amended habeas petition
as moot because no practical relief from his ordered removal could be
afforded to the petitioner; a decision on the merits challenging the
larceny convictions could not provide the petitioner relief from his
ordered removal because the petitioner’s robbery conviction, not chal-
lenged in the amended habeas petition, serves as an independent basis
for the petitioner’s ordered removal.
2. The trial court improperly dismissed the amended habeas petition as
moot because the larceny convictions give rise to a reasonable possibility
of prejudicial collateral consequences as a matter of law; the petitioner
has not yet been removed from the United States and additional sources
of prejudicial consequences apart from removal and barred reentry are
a reasonable possibility in connection with the petitioner’s potential
future involvement with the criminal justice system, and, accordingly,
the judgment was reversed and a new habeas trial was ordered.
3. This court declined to review the petitioner’s ineffective assistance of
counsel claim; the habeas court did not rule on the merits and there
were existing factual disputes that could not be resolved on appeal.
Argued October 16, 2019—officially released April 28, 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, Sferrazza, J.; judgment
dismissing the petition, from which the petitioner, on
the granting of certification, appealed to this court.
Reversed; new trial.
Vishal K. Garg, for the appellant (petitioner.)
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Richard J. Colangelo, Jr.,
state’s attorney, Juliana Waltersdorff, assistant state’s
attorney, and Michael Proto, senior assistant state’s
attorney, for the appellee (respondent).
Opinion
ALVORD, J. The petitioner, Joseph Stephenson,
appeals from the judgment of the habeas court dismiss-
ing, as moot, his petition for a writ of habeas corpus.
The court dismissed the petition, which alleged that
the petitioner’s trial counsel had rendered ineffective
assistance by inaccurately advising him about the con-
sequences of pleading guilty under federal immigration
law, because the petitioner’s ordered removal from the
United States rests, in part, on a conviction that he did
not challenge in his habeas petition. On appeal, the
petitioner claims that the court improperly dismissed
his petition as moot, arguing that (1) ‘‘deportation—
not a deportation order—is the triggering event that
renders a case moot, and that a case does not become
moot until [the] petitioner is actually physically
removed from the United States,’’ and (2) ‘‘collateral
consequences other than immigration exist and will
continue to exist until the petitioner’s actual physical
removal from the United States.’’ We agree with the
petitioner’s second argument and, thus, reverse the
judgment of the court.1
The following undisputed facts and procedural his-
tory are relevant to this appeal. The petitioner is a
citizen of Jamaica, which is his country of origin. On or
about December 20, 1985, the petitioner was admitted
to the United States under nonimmigrant B-2 status.
On February 14, 2000, the petitioner’s immigration sta-
tus was changed to that of a lawful permanent resident.
On March 5, 2013, the petitioner pleaded guilty to
charges of larceny in the fifth degree, in violation of
General Statutes § 53a-125a in one docket, and larceny
in the sixth degree, in violation of General Statutes
§ 53a-125b in a second docket (larceny convictions).2
On April 9, 2013, the petitioner was sentenced to two
concurrent 364 day terms of imprisonment on the lar-
ceny convictions.3 The concurrent 364 day sentences
were negotiated by James Lamontagne, the petitioner’s
counsel, and the prosecutor in an effort by Attorney
Lamontagne to alleviate any adverse consequences that
the petitioner might encounter under federal immigra-
tion law as a result of the larceny convictions.
On July 9, 2013, the United States Department of
Homeland Security (department) charged the petitioner
‘‘as removable pursuant to [the Immigration and Nation-
ality Act, 8 U.S.C. § 1227 (a) (2) (A) (ii) (2012)] based
on [the] larceny convictions.’’ Subsequently, on January
21, 2014, the department further charged the petitioner
‘‘as removable pursuant to [8 U.S.C. § 1227 (a) (2) (A)
(iii) (2012)], as an aggravated felon’’ for a prior convic-
tion of robbery in the third degree (robbery convic-
tion).4 In a decision dated July 22, 2014, the immigration
judge concluded that the larceny convictions consti-
tuted crimes of moral turpitude under 8 U.S.C. § 1227
(a) (2) (A) (ii), and that the robbery conviction was an
aggravated felony under 8 U.S.C. § 1227 (a) (2) (A)
(iii). On the basis of these conclusions, the immigration
judge ordered that the petitioner be removed from the
United States to Jamaica. On December 15, 2014, the
Board of Immigration Appeals (board) ‘‘affirm[ed] that
the [petitioner] ha[d] been convicted of an aggravated
felony for the reasons given in the [i]mmigration
[j]udge’s decision’’ and, accordingly, dismissed his
appeal. Because the board affirmed the immigration
judge’s determination that the robbery conviction was
an aggravated felony, it concluded that it ‘‘need not
address whether the [petitioner] [w]as also . . . con-
victed of crimes involving moral turpitude.’’
On September 25, 2013, while in custody serving his
concurrent 364 day sentences and shortly after the
department charged him as removable, the petitioner
filed a self-represented petition for a writ of habeas
corpus seeking to vacate the larceny convictions.5 On
January 2, 2018, the petitioner, now represented by
counsel, filed an amended petition for a writ of habeas
corpus (operative petition). In the operative petition,
the petitioner alleged that Attorney Lamontagne ren-
dered ineffective assistance of counsel. Specifically, the
petitioner alleged that Attorney Lamontagne’s failure
to accurately advise him that pleading guilty to the
larceny charges against him would make him
‘‘deportable, removable, and inadmissible for reentry
under federal immigration law,’’ constituted deficient
performance.6 The petitioner further alleged that, but
for Lamontagne’s deficient performance, ‘‘[t]here [wa]s
a reasonable probability that . . . [he] would not have
entered a guilty plea.’’
On May 22, 2018, a trial on the operative petition was
held before the court, Sferrazza, J. On May 29, 2018,
Judge Sferrazza issued a memorandum of decision in
which he held that the operative petition was moot.
Judge Sferrazza found that the immigration judge had
concluded that the robbery conviction constituted an
aggravated felony and had ordered the petitioner’s
removal, in part, on that basis. Judge Sferrazza found
that the petitioner did not challenge the robbery convic-
tion in the operative petition. He further found that, on
appeal, the board affirmed both the immigration judge’s
aggravated felony conclusion and order of removal.
Accordingly, Judge Sferrazza concluded that his adjudi-
cation of the petitioner’s claim ‘‘can provide no practical
benefit to [him] because the mandated removal order,
affirmed on appeal, is premised on an entirely different
conviction for an aggravated felony, apart from [the]
larceny convictions’’ that were challenged in the opera-
tive petition.7 The petitioner filed a petition for certifica-
tion to appeal, which Judge Sferrazza granted. This
appeal followed.
I
In his principal brief, the petitioner claims that the
court improperly dismissed, as moot, the operative peti-
tion, alleging that Attorney Lamontagne provided inef-
fective assistance by inaccurately advising him about
the consequences under federal immigration law of
pleading guilty to his larceny charges, because (1) ‘‘a
case does not become moot until [the] petitioner is
actually physically removed from the United States,’’ as
opposed to being ordered removed, and (2) ‘‘collateral
consequences other than immigration exist and will
continue to exist until the petitioner’s actual physical
removal from the United States.’’8
With respect to his first argument, the petitioner
asserts that by dismissing his claim, as moot, the court
‘‘improperly extended Connecticut’s mootness jurispru-
dence.’’ Specifically, the petitioner asserts that, under
State v. Aquino, 279 Conn. 293, 901 A.2d 1194 (2006),
a claim ‘‘challenging a conviction may be rendered moot
once the person challenging the conviction has been
deported from the United States,’’ but that ‘‘[n]o . . .
court . . . has extended the Aquino doctrine to con-
clude that mootness occurs before deportation.’’ The
petitioner further contends that, ‘‘[a]lthough there
exists a separate basis for [his] removal, [he] is currently
challenging the [robbery] conviction underlying that
basis in a federal proceeding. Were [he] to be successful
in that challenge, a decision vacating his larceny convic-
tions would provide him with practical immigration
relief. . . . Accordingly, there is a reasonable possibil-
ity that a favorable decision in this case would provide
[him] with practical relief.’’9 In response, the respon-
dent, the Commissioner of Correction (commissioner),
argues that, ‘‘[w]hether [the] petitioner has been
deported due to the [robbery conviction], whether he
will be once released from state incarceration, or
whether deportation proceedings will commence here-
after, the fact remains that reversing the [larceny con-
victions] here will have no effect on deportability.’’
As to his second argument, the petitioner asserts that
‘‘[p]rior to being deported, [he] is likely to suffer a litany
of collateral consequences that result from the [larceny]
convictions,’’ including adverse effects on his inmate
level and eligibility for programs and parole while in
the commissioner’s custody, on his standing in the com-
munity, and in seeking future job opportunities.
According to the petitioner, therefore, ‘‘these prejudi-
cial collateral consequences would be alleviated in the
event that the . . . larceny convictions were vacated.’’
In response, the commissioner argues that, ‘‘given [the]
petitioner’s lengthy prior record, including his six prior
larcenies, two prior adjudications as a persistent lar-
ceny offender and his robbery conviction . . . [he]
cannot show a reasonable possibility that the [larceny
convictions] here will have any measureable effect.’’
Following oral argument before this court, we
ordered, sua sponte, that the parties provide supple-
mental briefing to address the following questions: ‘‘(1)
Whether the petition for a writ of habeas corpus is moot
in light of St. Juste v. Commissioner of Correction, 328
Conn. 198, 218 [177 A.3d 1144] (2018), which held that
‘in the absence of evidence of a crime of moral turpitude
that would serve as a permanent bar from reentering
this country, we conclude that [the challenged convic-
tion] gives rise to a reasonable possibility of prejudicial
collateral consequences—namely, his deportation and
a barrier to reentry.’ . . . See also Wala v. Mukasey,
511 F.3d 102 (2d Cir. 2007) (holding that, under modified
categorical approach, record of conviction did not nec-
essarily support [board’s] finding that petitioner had
intent of permanent taking pursuant to Connecticut
larceny statute, General Statutes § 53a-119, required to
hold that petitioner had committed a crime involving
moral turpitude). (2) Whether the nonimmigration col-
lateral consequences identified in the petitioner’s brief-
ing to this court are cognizable under Connecticut law
in light of the petitioner’s circumstances?’’ (Emphasis
in original.)
In response to the first question in our order for
supplemental briefing, the petitioner directs our atten-
tion to In re Walton, Board of Immigration Appeals,
File No. A041-657-485 (December 5, 2019), a decision
recently issued by the board, which, according to the
petitioner, ‘‘held that a full pardon of an aggravated
felony from the . . . Board of Pardons and Paroles has
the ‘effect of an executive pardon’ such that it may be
used to terminate immigration proceedings and vacate
a removal order.’’ In light of this holding, the petitioner
argues that, ‘‘[b]ecause any of [his] prior convictions—
including the robbery conviction that serves as an alter-
nate ground for [his] removal and inadmissibility—may
be pardoned, there is a reasonable possibility that vacat-
ing the larceny convictions at issue in this case will
afford [him] practical immigration relief.’’ Thus, the
petitioner contends, ‘‘this court cannot find evidence
of any crimes ‘that would serve as a permanent ban from
reentering this country’ . . . because the possibility of
a pardon prevents this court from concluding that any
of his prior convictions have the effect of a permanent
ban.’’ (Emphasis omitted.) With respect to the question
of whether the robbery conviction is a crime involving
moral turpitude that would bar the petitioner’s reentry,
the petitioner concedes the answer is yes, citing Webster
v. Mukasey, 259 Fed. Appx. 375, 376 (2d Cir. 2008)
(‘‘[r]obbery is universally recognized as a crime involv-
ing moral turpitude’’). The commissioner likewise
argues that the robbery conviction is a crime involving
moral turpitude that bars reentry and renders the opera-
tive petition moot.10
In response to the second question in our order for
supplemental briefing, the petitioner argues that,
‘‘[u]ntil [a] habeas petitioner has actually been removed
from the United States, a habeas petitioner with a depor-
tation order suffers the exact same nonimmigration
collateral consequences as a habeas petitioner with no
deportation order.’’ Specifically, the petitioner argues
that the larceny convictions could be weighed against
him by the sentencing judge should he be convicted of
the assault of public safety personnel charge that is
currently pending against him. The commissioner
argues that, ‘‘regardless of whether consequences from
the [larceny convictions] might save a typical case from
being moot, the unique rationale employed in immigra-
tion mootness cases should be recognized.’’ The com-
missioner asserts that the ‘‘unique rationale employed
in immigration mootness cases’’ is that ‘‘if a conviction
is not the sole reason for adverse immigration conse-
quences, such as deportation, denial of reentry or inabil-
ity to obtain naturalization, an appeal is moot because
reversal can provide no practical immigration relief.’’
(Emphasis in original.) The commissioner argues that in
order to recognize this unique rationale in immigration
mootness cases, the focus should not be ‘‘on what col-
lateral consequences might arise in the community, in
employment or in state courts, but rather what conse-
quences may arise in federal immigration matters.’’
A
In order to assess the relative arguments of the par-
ties, it is necessary first to review the cases in which
our Supreme Court has applied its mootness doctrine
where prejudicial collateral consequences were alleged
as a result of federal immigration law. We begin our
review by setting forth axiomatic principles of law and
the standard of review. ‘‘Justiciability requires (1) that
there be an actual controversy between or among the
parties to the dispute . . . (2) that the interests of the
parties be adverse . . . (3) that the matter in contro-
versy be capable of being adjudicated by judicial power
. . . and (4) that the determination of the controversy
will result in practical relief to the complainant. . . .
The first factor relevant to a determination of justiciabil-
ity—the requirement of an actual controversy—is prem-
ised upon the notion that courts are called upon to
determine existing controversies, and thus may not be
used as a vehicle to obtain advisory judicial opinions
on points of law. . . . Moreover, [a]n actual contro-
versy must exist not only at the time the appeal is taken,
but also throughout the pendency of the appeal. . . .
When, during the pendency of an appeal, events have
occurred that preclude an appellate court from granting
any practical relief through its disposition of the merits,
a case has become moot.’’ (Citations omitted; internal
quotation marks omitted.) State v. McElveen, 261 Conn.
198, 204–205, 802 A.2d 74 (2002). ‘‘[A] case does not
necessarily become moot by virtue of the fact that . . .
due to a change in circumstances, relief from the actual
injury is unavailable. . . . [A] controversy continues to
exist, affording the court jurisdiction, if the actual injury
suffered by the litigant potentially gives rise to a collat-
eral injury from which the court can grant relief.
Although the facts and circumstances of each case rais-
ing this issue have differed, a common theme emerges
upon review of those cases: whether the litigant demon-
strated a basis upon which we could conclude that,
under the circumstances, prejudicial collateral conse-
quences are reasonably possible as a result of the
alleged impropriety challenged on the appeal.’’ Id., 205.
‘‘Because mootness implicates the court’s subject mat-
ter jurisdiction, it raises a question of law subject to
plenary review.’’ (Internal quotation marks omitted.)
St. Juste v. Commissioner of Correction, supra, 328
Conn. 208. ‘‘[I]n determining whether a court has sub-
ject matter jurisdiction, every presumption favoring
jurisdiction should be indulged.’’ (Internal quotation
marks omitted.) Id., 218.
Our Supreme Court’s seminal case considering moot-
ness when consequences under federal immigration law
are alleged is State v. Aquino, supra, 279 Conn. 293. In
Aquino, the defendant was a ‘‘Guatemalan national who
illegally entered the United States in 1986 and remained
here as an illegal alien for the next seventeen years.’’
(Internal quotation marks omitted.) Id., 295. After the
defendant entered a guilty plea to multiple charges, he
filed a motion in the trial court to withdraw his guilty
plea claiming that his attorney had failed to advise him
adequately about the consequences of that plea under
federal immigration law. Id., 294. That motion was
denied by the trial court, which judgment this court
affirmed on appeal. Id., 294–95. The defendant appealed
to our Supreme Court, which did not reach the merits
of the appeal but, rather, dismissed the appeal as moot.
Id., 295. The court noted that the defendant was
removed while his appeal was pending before this court.
Id., 298 and n.2. The court stated that ‘‘[its] careful
review of the record reveals . . . that [the defendant]
has never claimed and that the record contains no evi-
dence, that his guilty plea in the present case was the
sole reason for his deportation. . . . Thus, his illegal
immigration status could have been the reason for his
deportation.’’ Id., 298 n.2. The court further stated that
‘‘[j]ust as there is no evidence in the record before us
establishing the reason for the defendant’s deportation
. . . there is no evidence to suggest that, in the absence
of the guilty plea, the defendant would be allowed to
reenter this country or become a citizen.’’ Id., 298–99
n.3. The court held that, ‘‘in the absence of any evidence
that the defendant’s guilty plea was the sole reason for
his deportation, the defendant’s appeal must be dis-
missed as moot,’’ because, ‘‘[i]f [the deportation] was
not the result of his guilty plea alone, then [the] court
can grant no practical relief and any decision rendered
by [the] court would be purely advisory.’’ Id., 298.
In State v. Jerzy G., 326 Conn. 206, 162 A.3d 692
(2017), our Supreme Court again assessed whether an
appeal was moot where the defendant was removed
from the United States under federal immigration law
during the pendency of the appeal. In Jerzy G., the
defendant, a citizen of Poland, entered the United States
on a nonimmigrant B-2 visitor’s visa that authorized
him to remain for no longer than six months. Id., 209.
Six years later, while still residing in the United States,
the defendant was charged with sexual assault in the
fourth degree. Id. The defendant applied for and was
granted a pretrial diversionary program of accelerated
rehabilitation. Id., 209–10. In accordance with the terms
of the accelerated rehabilitation program, the defen-
dant’s case was continued for a two year period of
probation that would end upon his successful comple-
tion of the program. Id., 210. Soon thereafter, however,
the defendant was removed to Poland for remaining in
the United States for a period longer than permitted,
without authorization. Id. The defendant was notified
by the department that he was prohibited from entering
the United States for a period of ten years from his
departure date. Id. The defendant’s removal was
brought to the attention of the trial court; the state
sought a termination of his involvement in the acceler-
ated rehabilitation program and the issuance of an order
for his rearrest. Id., 210–11. The court found that the
defendant had failed to complete the accelerated reha-
bilitation program, ordered his rearrest, and imposed
as a condition of his release that he post a $5000 cash
or surety bond. Id., 211. The defendant appealed to this
court, which dismissed his appeal as moot, concluding
that, ‘‘because [he] had produced no evidence to estab-
lish that, in the absence of the termination of acceler-
ated rehabilitation, he would be permitted to reenter,
visit, or naturalize, the purported collateral conse-
quences were too conjectural.’’ Id., 212.
The defendant appealed to our Supreme Court, which
reversed this court’s judgment. Id., 213. At the outset
of its discussion, the court recognized that State v.
McElveen, supra, 261 Conn. 198, set forth ‘‘the contours
of the collateral consequences doctrine’’; State v. Jerzy
G., supra, 326 Conn. 213; and recited its standard for
determining whether prejudicial collateral conse-
quences exist: ‘‘[F]or a litigant to invoke successfully
the collateral consequences doctrine, the litigant must
show that there is a reasonable possibility that prejudi-
cial collateral consequences will occur. Accordingly,
the litigant must establish these consequences by more
than mere conjecture, but need not demonstrate that
these consequences are more probable than not. This
standard provides the necessary limitations on justicia-
bility underlying the mootness doctrine itself. Where
there is no direct practical relief available from the
reversal of the judgment . . . the collateral conse-
quences doctrine acts as a surrogate, calling for a deter-
mination whether a decision in the case can afford the
litigant some practical relief in the future. The reviewing
court therefore determines, based upon the particular
situation, whether, the prejudicial collateral conse-
quences are reasonably possible.’’ (Internal quotation
marks omitted.) Id., 214-15.
The court made two additional points that are rele-
vant to the present case. First, the court noted that,
‘‘[o]n its face, Aquino appears to be inconsistent with
our collateral consequences jurisprudence,’’ in that
Aquino ‘‘makes no express reference to ‘collateral con-
sequences’ or the ‘reasonable possibility’ standard set
forth in McElveen.’’ Id., 220. The court further noted
that the suggestion in Aquino ‘‘that the defendant must
produce evidence that he ‘would be allowed’ to reenter
this country or become a citizen . . . seems to be in
tension with [the McElveen] standard.’’ (Citation omit-
ted.) Id. The court, nevertheless, concluded that Aquino
was consistent with McElveen because, in Aquino, the
lack of evidence in the record to establish both the
reason for the defendant’s deportation and, conversely,
the lack of any impediment aside from his guilty plea
to preclude reentry resulted in the court in Aquino
‘‘apparently deem[ing] it impossible to determine
whether, even if Aquino prevailed on appeal and his
conviction was reversed, such a decision would
improve his chances of reentry into the country or natu-
ralization.’’ Id., 221. According to the court in Jerzy G.,
the decision in Aquino was supported by the ‘‘settled
principle under both federal and Connecticut case law
that, if a favorable decision necessarily could not afford
the practical relief sought, the case is moot.’’ Id.
Second, the court noted in Jerzy G., the approach of
the court in McElveen to the question of ‘‘whether there
could be collateral consequences to overcome a charge
of mootness even though granting relief would not
remove similar prejudice remaining from other
sources.’’ Id., 216. Specifically, it explained that, in
McElveen, the court concluded that there was a reason-
able possibility of prejudicial collateral consequences
arising from the defendant’s violation of probation even
though the defendant also had a conviction of attempted
robbery in the third degree that created similar prejudi-
cial collateral consequences. Id., 216–17; see also id.,
217–18 (‘‘[t]he proposition that the challenged decision
did not have to be the sole source of possible prejudice
found support in the court’s earlier decision in Housing
Authority v. Lamothe, 225 Conn. 757, 765, 627 A.2d
367 (1993)’’). In Jerzy G., however, the court found
McElveen’s principle inapplicable to cases in which a
conviction, other than the one being challenged, results
in a permanent ban of an individual’s reentry into the
United States because the alternative source of preju-
dice in such cases is ‘‘necessarily dispositive regarding
the collateral injury . . . .’’ State v. Jerzy G., supra,
326 Conn. 222.
The court in Jerzy G. then turned to its analysis
of the defendant’s case. It first determined that the
defendant’s case was distinguishable from Aquino
because, ‘‘[u]nlike Aquino, the record establishes the
reason for the defendant’s deportation—overstaying
the term of his visitor visa without permission to do
so’’ and ‘‘[t]he record also establishes that the ground
for the defendant’s removal does not permanently bar
him from reentering the United States . . . .’’ Id., 223.
On this basis, the court ‘‘conclude[d] that there is a
reasonable possibility of prejudicial collateral conse-
quences should the defendant seek to lawfully reenter
the United States.’’ Id. Specifically, the court stated a
reasonable possibility of prejudicial collateral conse-
quences existed in the following: (1) ‘‘the fact that there
is a pending criminal charge against the defendant could
be a significant factor in dissuading federal immigration
officials from admitting him into the country, as such
a decision would be discretionary’’; (2) even if the defen-
dant was permitted to enter the United States, he
‘‘would be subject to arrest upon entry’’; (3) upon arrest,
‘‘[i]n order to obtain a release, he would have to post
a $5000 bond’’; and (4) ‘‘[i]f he was unable to [post
bond], he would be imprisoned.’’ Id., 223–24. Were the
defendant to succeed on the merits of his appeal, how-
ever, those impediments could be removed. Id., 224.
In St. Juste v. Commissioner of Correction, supra,
328 Conn. 198, our Supreme Court most recently
addressed the issue of mootness in a case in which a
petitioner alleged prejudicial collateral consequences
on the basis of his removal from the United States under
federal immigration law. In St. Juste, the petitioner
pleaded guilty to assault in the second degree and pos-
session of a sawed-off shotgun. Id., 202. In a petition
for a writ of habeas corpus, the petitioner alleged that
his trial counsel rendered ineffective assistance
because he, inter alia, ‘‘(1) failed to educate himself
about the immigration consequences of the pleas, (2)
misadvised the petitioner with respect to the immigra-
tion consequences of the pleas, and (3) failed to mean-
ingfully discuss with the petitioner what immigration
consequences could . . . flow from the pleas.’’ Id., 203.
The petitioner further alleged that his guilty pleas ‘‘were
not knowingly, voluntarily, and intelligently made
because he made them under the mistaken belief that
his conviction would not subject him to deportation.’’
Id. Lastly, the petitioner alleged that as a result of his
conviction of assault in the second degree and posses-
sion of a sawed-off shotgun, he had been ordered
removed from this country. Id.
The habeas court denied the petition, and the peti-
tioner appealed to this court. Id., 204. Prior to filing his
appeal, however, the petitioner was removed to Haiti
solely on the basis of his conviction of assault in the
second degree. Id., 204 and n.7. Because of the petition-
er’s removal, this court did not reach the merits of his
appeal but, instead, dismissed the appeal as moot. Id.,
205. In doing so, this court observed that, in addition
to the conviction of assault in the second degree and
possession of a sawed-off shotgun, the petitioner had
a prior conviction of threatening in the second degree
in violation of General Statutes (Rev. to 2005) § 53a-62
(a).11 Id., 205. This court concluded that the petitioner’s
prior conviction of threatening in the second degree
was a crime involving moral turpitude that would bar
his reentry into the United States, irrespective of any
relief provided on his challenged conviction, thereby
rendering his appeal moot. Id., 206–207.
On appeal, our Supreme Court reversed this court’s
decision. Id., 208. The court noted that this court had
applied the categorical approach, rather than the modi-
fied categorical approach,12 to determine whether § 53a-
62 (a) was a crime involving moral turpitude. Id., 207.
The court determined that because § 53a-62 (a) is divisi-
ble, an application of the modified categorical approach
was required. Id., 208. The court reasoned that, under
Second Circuit precedent, whether a threatening
offense under § 53a-62 (a) is a crime of moral turpitude
depends on the mental state that must be proven to
convict under it. Id., 212. If committed with an inten-
tional mental state, it is a crime of moral turpitude, but,
if committed with a reckless mental state, it is not a
crime of moral turpitude unless combined with aggra-
vating circumstances. See id., 213 (‘‘crimes committed
recklessly (where recklessness is defined as a con-
scious disregard of substantial and unjustifiable risk)
have, in certain aggravated circumstances, been found
to express a sufficiently corrupt mental state to consti-
tute a [crime of moral turpitude]’’ (emphasis in original;
internal quotation marks omitted)). The court deemed
§ 53a-62 (a) divisible because ‘‘[e]ach subdivision of
§ 53a-62 (a) requires proof of a different act or particular
mental state. . . . [S]ubdivision (1) requires proof that
an accused intentionally placed another person in fear
of imminent serious physical injury, while subdivision
(2) requires proof that an accused intentionally terror-
ized another person. Section 53a-62 (a) (3), however,
requires proof that an accused recklessly disregarded
the risk of causing terror in another person.’’ Id., 212.
The court further concluded that because § 53a-62 (a)
(3) lacks aggravating circumstances, it is not a crime
involving moral turpitude. Id., 214.
Having concluded that § 53a-62 (a) is divisible, the
court proceeded to review the record of conviction
pursuant to the modified categorical approach to deter-
mine under which subdivision the petitioner was con-
victed. Id., 216. Because the record of conviction was
inconclusive, the court could not determine ‘‘that the
petitioner was convicted of a crime of moral turpitude
that is a permanent ban from reentering this country
. . . .’’ (Internal quotation marks omitted.) Id., 218. The
court summarized that, ‘‘in the absence of evidence
of a crime of moral turpitude that would serve as a
permanent ban from reentering this country, we con-
clude that the petitioner’s assault conviction, which he
challenges in the present habeas action, gives rise to a
reasonable possibility of prejudicial collateral conse-
quences—namely, his deportation and a barrier to reen-
try.’’ Id.
B
Informed by our review of Aquino, Jerzy G., and St.
Juste, we turn now to the petitioner’s first argument that
the court improperly dismissed the operative petition
as moot because a reasonable possibility of prejudicial
collateral consequences exists in connection with his
ordered removal from the United States under federal
immigration law. In Aquino, Jerzy G., and St. Juste,
the litigant had been removed from the United States
by the time our Supreme Court considered the issue of
mootness.13 As such, the court’s analysis turned on
whether the litigant was barred from reentry into the
United States.14 In the present case, the petitioner has
not yet been removed from the United States. Therefore,
the mootness analysis focuses on whether a decision
on the merits of the operative petition challenging the
larceny convictions could provide the petitioner relief
from his ordered removal—which is based on both the
larceny convictions and the robbery conviction—or, if
not, from a barrier to his future reentry. We conclude
that a decision on the merits of the operative petition
could not provide the petitioner with relief from either.
Accordingly, we disagree with the petitioner’s first
argument.
The robbery conviction, which serves as one of the
bases for the petitioner’s ordered removal, was not chal-
lenged in the operative petition. Regardless of whether
the petitioner succeeds on the merits of the operative
petition challenging the larceny convictions, his
ordered removal will stand because it is supported by
the robbery conviction. Thus, a decision on the merits
of the operative petition could provide no relief to the
petitioner from his ordered removal.
Moreover, in his supplemental briefing, the petitioner
concedes in accordance with Second Circuit precedent
that the robbery conviction is a crime involving moral
turpitude. See St. Juste v. Commissioner of Correction,
supra, 328 Conn. 210 (‘‘decisions of the Second Circuit,
while not binding upon this court, nevertheless carry
particularly persuasive weight in the resolution of
issues of federal law’’ (internal quotation marks omit-
ted)). In Webster v. Mukasey, supra, 259 Fed. Appx. 375,
the Second Circuit vacated a board decision denying a
petitioner’s application for a waiver of deportation. In
doing so, however, the court acknowledged that ‘‘[i]t
[was] unnecessary to remand for a decision on whether
a conviction for second degree robbery under Connecti-
cut law could form the basis of exclusion under [8
U.S.C. § 1182 (a)] as a crime involving moral turpitude’’
because the board had ‘‘already determined that rob-
bery is a crime involving moral turpitude that renders
an alien inadmissible.’’ Id., 376. Applying Webster to the
present case, we conclude that, under 8 U.S.C. § 1182
(a) (2) (A) (i) (I), the robbery conviction is a crime
involving moral turpitude and, thus, a permanent bar
to reentry.15 Because the robbery conviction was not
challenged in the operative petition, independently sup-
ports the petitioner’s ordered removal from the United
States, and is a permanent bar to his reentry, a decision
on the merits of the operative petition challenging the
larceny convictions could provide no practical relief to
the petitioner from the consequences he faces under
federal immigration law.16
The petitioner argues that, in light of In re Walton,
Board of Immigration Appeals, File No. A041-657-485
(December 5, 2019), ‘‘any of [his] prior convictions—
including the robbery conviction that serves as an alter-
nate ground for [his] removal and inadmissibility—may
be pardoned, [and, thus,] there is a reasonable possibil-
ity that vacating the larceny convictions at issue in this
case will afford [him] practical immigration relief.’’ The
petitioner has not identified in the record any pardon
received from the Board of Pardons and Paroles.
Accordingly, we conclude that this alleged source of
prejudicial collateral consequence is wholly specula-
tive. See State v. Jerzy G., supra, 326 Conn. 214 (‘‘the
litigant must establish these consequences by more than
mere conjecture’’ (internal quotation marks omitted));
State v. Aquino, supra, 279 Conn. 298 (citing lack of
evidence in record to support mootness conclusion).17
C
We next consider the petitioner’s argument that prej-
udicial collateral consequences exist while he is incar-
cerated on subsequent convictions and will continue
until he is physically removed from the United States.
Specifically, the petitioner argues that he has been
charged with assault of public safety personnel in viola-
tion of General Statutes § 53a-167c, which, if he is con-
victed of that offense, will result in a judge’s consider-
ation of the larceny convictions, as a part of the
petitioner’s criminal history, during sentencing.18
Because the larceny convictions give rise to a reason-
able possibility of prejudicial collateral consequences
as a matter of law, we conclude that the operative
petition is not moot.
As previously set forth, ‘‘for a litigant to invoke suc-
cessfully the collateral consequences doctrine, the liti-
gant must show that there is a reasonable possibility
that prejudicial collateral consequences will occur.
Accordingly, the litigant must establish these conse-
quences by more than mere conjecture, but need not
demonstrate that these consequences are more proba-
ble than not. . . . The reviewing court therefore deter-
mines, based upon the particular situation, whether,
the prejudicial collateral consequences are reasonably
possible.’’ State v. McElveen, supra, 261 Conn. 208.
‘‘It is well established that since collateral legal disa-
bilities are imposed as a matter of law because of a
criminal conviction, a case will not be declared moot
even where the sentence has been fully served.’’ Barlow
v. Lopes, 201 Conn. 103, 112, 513 A.2d 132 (1986); see
also Shays v. Local Grievance Committee, 197 Conn.
566, 572 n.4, 499 A.2d 1158 (1985); State v. Scott, 83
Conn. App. 724, 727, 851 A.2d 353 (2004). ‘‘[C]ollateral
consequences of a criminal conviction are legion,
involving possible heavier penalties in the event of
future convictions . . . .’’ Monsam v. Dearington, 82
Conn. App. 451, 455, 844 A.2d 927 (2004). In holding
that ‘‘collateral legal disabilities are imposed as a matter
of law because of a criminal conviction’’; Shays v. Local
Grievance Committee, supra, 572 n.4; our Supreme
Court has cited to persuasive federal precedent, which
presumes collateral consequences from a criminal con-
viction. See Pennsylvania v. Mimms, 434 U.S. 106, 108
n.3, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977) (‘‘[C]ases
have held that the possibility of a criminal defendant’s
suffering collateral legal consequences from a sentence
already served permits him to have his claims reviewed
here on the merits. . . . In any future state criminal
proceedings against respondent, this conviction may be
relevant to setting bail and length of sentence, and to
the availability of probation.’’ (Internal quotation marks
omitted.)); Sibron v. New York, 392 U.S. 40, 55, 88 S.
Ct. 1889, 20 L. Ed. 2d 917 (1968) (‘‘in Pollard v. United
States, 352 U.S. 354 [77 S. Ct. 481, 1 L. Ed. 2d 393
(1957)], the [c]ourt abandoned all inquiry into the actual
existence of specific collateral consequences and in
effect presumed that they existed’’).
In light of the foregoing precedent, we conclude that
the larceny convictions give rise to a reasonable possi-
bility of prejudicial collateral consequences as a matter
of law. More specifically, in this case, the larceny con-
victions give rise to a reasonable possibility of prejudi-
cial collateral consequences in connection with the peti-
tioner’s potential future involvement with the criminal
justice system.19 See State v. McElveen, supra, 261 Conn.
213 (finding reasonable possibility of prejudicial collat-
eral consequences in connection with future involve-
ment with criminal justice system arising from revoca-
tion of probation). Although we conclude that the
petitioner’s potential future involvement with the crimi-
nal justice system is sufficient to establish a reasonable
possibility of prejudicial collateral consequences, we
also note that the petitioner is currently facing a charge
of assault of public safety personnel. State v. Stephen-
son, Superior Court, judicial district of Hartford, geo-
graphical area number thirteen, Docket No. H13W-CR-
XX-XXXXXXX-S; see also Pennsylvania v. Mimms, supra,
434 U.S. 108–109 n.3 (‘‘[i]n view of the fact that respon-
dent, having fully served his state sentence, is presently
incarcerated . . . we cannot say that [consideration of
his conviction in future criminal proceedings is] unduly
speculative even if a determination of mootness
depended on a case-by-case analysis’’). This pending
criminal charge is useful to illustrate how the larceny
convictions give rise to a reasonable possibility of preju-
dicial collateral consequences in connection with the
criminal justice system. For example, were the peti-
tioner to be convicted of the assault of public safety
personnel charge, the larceny convictions, as part of
his past criminal history, could be weighed against him
by the judge in determining the appropriate sentence
to impose. See General Statutes § 54-91a (a) (‘‘any court
may, in its discretion, order a presentence investigation
for a defendant convicted of any crime or offense’’);
General Statutes § 54-91a (c) (‘‘the probation officer
shall promptly inquire into . . . the criminal record
. . . of the defendant’’); General Statutes § 54-91a (d)
(‘‘[i]n lieu of ordering a full presentence investigation,
the court may order an abridged version of such investi-
gation, which (1) shall contain . . . (F) the criminal
record of the defendant’’); see also State v. Bell, 303
Conn. 246, 265, 33 A.3d 167 (2011) (‘‘sentencing princi-
ples generally . . . require the court [to] fashion a sen-
tence that fits the crime and the criminal’’ (internal
quotation marks omitted)). Thus, the larceny convic-
tions present a reasonable possibility of prejudicial col-
lateral consequences from which the court can grant
practical relief, namely, consideration of the larceny
convictions against the petitioner in future criminal pro-
ceedings.
The commissioner argues that, ‘‘regardless of
whether consequences from the [larceny convictions]
might save a typical case from being moot, the unique
rationale employed in immigration mootness cases
should be recognized.’’ Thus, ‘‘if a conviction is not
the sole reason for adverse immigration consequences,
such as deportation, denial of reentry or inability to
obtain naturalization, an appeal is moot because rever-
sal can provide no practical immigration relief.’’
(Emphasis in original.) We disagree. In each of our
previously discussed Supreme Court cases analyzing
mootness when federal immigration law is implicated,
the appealing party had already been removed from the
United States by the time their appeal reached the court.
See St. Juste v. Commissioner of Correction, supra,
328 Conn. 204; State v. Jerzy G., supra, 326 Conn. 210;
State v. Aquino, supra, 279 Conn. 298. Therefore, the
alleged sources of prejudicial collateral consequences
in those cases were the parties’ removal from the United
States and their potential bar from reentry, to which
the court limited its analysis. But see State v. Jerzy G.,
supra, 326 Conn. 224 (concluding that practical relief
could be provided from defendant’s ordered rearrest
and imposed bond, should he be permitted reentry into
United States). This case, however, alleges additional
sources of prejudicial collateral consequences other
than removal and barred reentry, sources which are
uniquely present because the petitioner is incarcerated
under subsequent convictions and has yet to have his
ordered removal from the United States executed.
Because ‘‘every presumption favoring jurisdiction
should be indulged’’; (internal quotation marks omitted)
St. Juste v. Commissioner of Correction, supra, 218;
we conclude that the larceny convictions do give rise
to a reasonable possibility of prejudicial collateral con-
sequences from which practical relief can be granted.
II
Because we have concluded that the operative peti-
tion is not moot, we turn to the petitioner’s second claim
on appeal. The petitioner claims that his constitutional
right to the effective assistance of counsel was violated
by counsel’s failure to accurately advise him about the
immigration consequences of pleading guilty. The com-
missioner argues that because the court ‘‘dismissed [the
operative petition] without deciding its merits, it did
not make sufficient factual findings to enable appellate
review.’’ Therefore, the commissioner argues that, ‘‘if
the [operative petition] is not moot, the case should be
remanded for the . . . court to make factual findings
and decide the merits . . . .’’ We agree with the com-
missioner.
We begin by setting forth the principles of law and
standard of review. ‘‘A criminal defendant is constitu-
tionally entitled to adequate and effective assistance of
counsel at all critical stages of criminal proceedings.
. . . This right arises under the sixth and fourteenth
amendments to the United States constitution and arti-
cle first, § 8, of the Connecticut constitution. . . . It is
axiomatic that the right to counsel is the right to the
effective assistance of counsel. . . . A claim of ineffec-
tive assistance of counsel is governed by the two-
pronged test set forth in Strickland v. Washington, [466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. Under
Strickland, the petitioner has the burden of demonstra-
ting that (1) counsel’s representation fell below an
objective standard of reasonableness, and (2) counsel’s
deficient performance prejudiced the defense because
there was a reasonable probability that the outcome of
the proceedings would have been different had it not
been for the deficient performance.’’ (Footnote omitted;
internal quotation marks omitted.) Flomo v. Commis-
sioner of Correction, 169 Conn. App. 266, 277–78, 149
A.3d 185 (2016), cert. denied, 324 Conn. 906, 152 A.3d
544 (2017).
The first prong of Strickland was discussed in Padilla
v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed.
2d 284 (2010). ‘‘In Padilla . . . the United States
Supreme Court concluded that the federal constitu-
tion’s guarantee of effective assistance of counsel
requires defense counsel to accurately advise a nonciti-
zen client of the immigration consequences of a guilty
plea. . . . [T]he Supreme Court recognized that there
may be occasions when the consequences of a guilty
plea will be unclear or uncertain to competent defense
counsel. . . . In those circumstances, counsel need do
no more than advise a noncitizen client that pending
criminal charges may carry a risk of adverse immigra-
tion consequences. . . . But when the immigration
consequences under federal law are clearly discernable,
Padilla requires counsel to accurately advise his client
of those consequences. . . . For some convictions,
federal law calls for deportation, subject to limited
exceptions. . . . In these circumstances, because the
likely immigration consequences of a guilty plea are
truly clear, counsel has a duty to inform his client of
the deportation consequences set by federal law.’’ (Cita-
tions omitted; internal quotation marks omitted.) Bud-
ziszewski v. Commissioner of Correction, 322 Conn.
504, 511–12, 142 A.3d 243 (2016). In Budziszewski,
‘‘[b]ecause federal law called for deportation for the
petitioner’s conviction, his counsel was required to
unequivocally convey to the petitioner that federal law
mandated deportation as the consequences for pleading
guilty.’’ Id., 512.
‘‘For claims of ineffective assistance of counsel aris-
ing out of the plea process, the United States Supreme
Court has modified the second prong of the Strickland
test to require that the petitioner produce evidence 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. . . . An inef-
fective assistance of counsel claim will succeed only
if both prongs [of Strickland] are satisfied.’’ (Internal
quotation marks omitted.) Flomo v. Commissioner of
Correction, supra, 169 Conn. App. 278.
The petitioner argues that, ‘‘[a]lthough the . . .
court did not rule on the merits of [the operative peti-
tion], it made all of the factual findings necessary for
this court to exercise plenary review over [the operative
petition].’’ Alternatively, the petitioner argues that ‘‘to
the extent that this court concludes that there are fac-
tual questions that were not resolved by the . . . court,
but that are necessary to permit review of [his] claims,
those findings can be made by this court because they
are inevitable as a matter of law or are based on the
uncontroverted evidence and testimony in the record.’’
Portions of Judge Sferrazza’s memorandum of deci-
sion seem to bear on the two prongs of Strickland.
Nevertheless, the merits of the petitioner’s Padilla
claim were not discussed in Judge Sferrazza’s memoran-
dum of decision. Furthermore, Judge Sferrazza did not
make any specific findings with respect to issues that
the parties disputed. For instance, with respect to defi-
cient performance, there were no specific findings
made as to, inter alia, what Attorney Lamontagne told
the petitioner concerning the consequences he faced
under federal immigration law by pleading guilty to the
larceny charges and accepting the sentences negotiated
by Attorney Lamontagne, or whether there were any
viable alternative options to doing so. With respect to
the prejudice prong, the parties disputed the strength
of the prosecution’s larceny cases against the petitioner
and whether the petitioner understood the immigration
consequences during the plea canvass. Moreover,
where the petitioner and Attorney Lamontagne pro-
vided conflicting testimony, the court did not indicate
whose testimony it credited. Thus, there are existing
factual disputes that preclude us from deciding the peti-
tioner’s Padilla claim. See Budziszewski v. Commis-
sioner of Correction, supra, 322 Conn. 517 (concluding
that, although, ‘‘[i]n some cases, [the court is] able to
resolve an appeal without reversal by applying the cor-
rect legal standard to the facts found by the habeas
court,’’ court could not do so because habeas court
made insufficient findings); State v. Daly, 111 Conn.
App. 397, 400, 960 A.2d 1040 (2008) (‘‘it is well estab-
lished that as an appellate tribunal, we do not find
facts’’), cert. denied, 292 Conn. 909, 973 A.2d 108 (2009).
Accordingly, we remand the case to the habeas court
to conduct a new trial.20
The judgment is reversed and the case is remanded
for a new habeas trial.
In this opinion the other judges concurred.
1
The petitioner also claims that his ‘‘constitutional right to effective assis-
tance of counsel . . . was violated by counsel’s failure to adequately advise
[him] about the immigration consequences of pleading guilty.’’ Because we
conclude in part II of this opinion that the court did not make sufficient
factual findings to enable our review of this claim, we do not reach it but,
instead, remand the case for a new trial. See footnote 20 of this opinion.
2
The petitioner further pleaded guilty to being a persistent larceny
offender under General Statutes § 53a-40.
3
The petitioner’s habeas counsel represented that, as of the date of trial
on his habeas petition, the petitioner had completed serving his concurrent
364 day sentences. The petitioner’s counsel further represented that the
petitioner was currently serving sentences for a subsequent conviction of
burglary in the third degree, attempt to commit tampering with physical
evidence, and attempt to commit arson in the second degree, all of which
arose from events occurring in March, 2013. See State v. Stephenson, 187
Conn. App. 20, 22, 201 A.3d 427, cert. granted, 331 Conn. 914, 204 A.3d 702
(2019). The petitioner received a total effective sentence of twelve years of
incarceration followed by eight years of special parole on this conviction.
Id., 29. On direct appeal, this court reversed the trial court’s judgment of
conviction rendered against the petitioner and remanded the case with
direction to render a judgment of acquittal on all charges. Id., 22. The state
petitioned for certification to appeal from this court’s judgment, which our
Supreme Court granted in part. State v. Stephenson, 331 Conn. 914, 204 A.3d
702 (2019). The petitioner remains incarcerated pending resolution of the
state’s appeal to our Supreme Court.
4
In 2010, a judgment of conviction of, inter alia, robbery in the third degree
was rendered against the petitioner, which judgment this court affirmed on
appeal. State v. Stephenson, 131 Conn. App. 510, 512–13, 27 A.3d 41 (2011),
cert. denied, 303 Conn. 929, 36 A.3d 240 (2012).
Thereafter, the petitioner brought a habeas action in the United States
District Court for the District of Connecticut challenging the robbery convic-
tion. Stephenson v. Connecticut, United States District Court, Docket No.
3:12CV1233 (RNC) (D. Conn. March 31, 2014). The petitioner raised three
claims in his original petition and, subsequently, filed two motions to amend
his petition to allege additional claims. Id. The District Court denied the
petitioner’s motions to amend on the ground that the claims raised therein—
ineffective assistance of counsel, improper dismissal of a juror, and actual
innocence—were procedurally defaulted. Id. The District Court also denied
the petition. Id.
On appeal, the Second Circuit Court of Appeals ‘‘remanded for a determi-
nation of whether the new claims, although procedurally defaulted, can be
adjudicated on the merits based on [the] petitioner’s claim that he is actually
innocent of [the robbery conviction].’’ Stephenson v. Connecticut, United
States District Court, Docket No. 3:12CV1233 (RNC) (D. Conn. January 8,
2018); see also Stephenson v. Connecticut, 639 Fed. Appx. 742, 746 (2d Cir.
2016). The District Court, on remand, ‘‘conclude[d] that [the petitioner] ha[d]
not met his burden of establishing a credible, compelling claim of actual
innocence and therefore dismiss[ed] the petition.’’ Stephenson v. Connecti-
cut, supra, United States District Court, Docket No. 3:12CV1233 (RNC).
Neither the District Court nor the Second Circuit issued the petitioner a
certificate of appealability, and, thus, his appeal from the District Court’s
judgment was dismissed. See Stephenson v. Connecticut, United States
Court of Appeals, Docket No. 18-367 (2d Cir. February 8, 2019).
5
The petitioner did not file a direct appeal from the larceny convictions.
6
The petitioner also alleged that Attorney Lamontagne provided deficient
performance by failing ‘‘to advise [him] that a guilty plea constituted a
waiver of his right to appeal from the trial court’s denial of his motion for
the supervised diversionary program under [General Statutes] § 54-56l.’’ The
court denied that claim and the petitioner does not appeal from that decision.
Therefore, we do not discuss it in this opinion.
7
The petitioner thereafter filed a ‘‘motion for reconsideration and reargu-
ment,’’ which Judge Sferrazza denied.
8
The petitioner also argues that (1) the court’s improper dismissal of his
claim is evidenced by the court reaching the merits of his claim that Attorney
Lamontagne provided ineffective assistance of counsel by failing ‘‘to advise
[him] that a guilty plea constituted a waiver of his right to appeal from the
trial court’s denial of his motion for the supervised diversionary program
under [General Statutes] § 54-56l’’; see footnote 6 of this opinion; and (2)
his claim ‘‘is a quintessential example of [one] that is capable of repetition,
yet evading review.’’ In light of our conclusion in part I C of this opinion that
the petitioner’s claim is not moot because there is a reasonable possibility
of prejudicial collateral consequences due to future involvement with the
criminal justice system, we do not consider these arguments.
9
In order for the petitioner’s argument to have any merit we would have
to assume that his federal habeas petition challenging the robbery conviction
will be successful on the merits. This we cannot do. See Daniels v. United
States, 532 U.S. 374, 382, 121 S. Ct. 1578, 149 L. Ed. 2d 590 (2001) (‘‘[t]hus,
we have held that if, by the time of sentencing under the [Armed Career
Criminal Act of 1984], a prior conviction has not been set aside on direct
or collateral review, that conviction is presumptively valid and may be used
to enhance the federal sentence’’); McKenzie v. Dept. of Homeland Security,
United States District Court, Docket No. 3:04CV0067 (JBA) (D. Conn. April
23, 2004) (‘‘[t]hus, the conviction is presumptively valid and may be used
by the immigration authorities as a basis for an order of removal until set
aside on direct or collateral review’’); Hinds v. Commissioner of Correction,
321 Conn. 56, 113, 136 A.3d 596 (2016) (Zarella, J., dissenting) (‘‘The habeas
petitioner does not come before the [habeas] [c]ourt as one who is innocent,
but on the contrary as one who has been convicted by due process of law
. . . . Accordingly, the petitioner bears a heavy burden of proof when
attacking a presumptively valid conviction.’’ (Citation omitted; internal quo-
tation marks omitted.)); Myers v. Manson, 192 Conn. 383, 387, 472 A.2d 759
(1984) (‘‘the plaintiff in a habeas corpus proceeding bears a heavy burden
of proof’’). Because we cannot assume that the robbery conviction will be
vacated, that conviction supports the petitioner’s ordered removal and bars
reentry regardless of whether the petitioner ultimately were to succeed on
the merits of the operative petition challenging the larceny convictions. See
part I B of this opinion. Accordingly, we reject this argument.
Moreover, on February 8, 2019, nineteen days prior to the petitioner filing
his principal brief in this appeal on February 27, 2019, the Second Circuit
dismissed the petitioner’s appeal from the District Court’s dismissal of his
petition for a writ of habeas corpus challenging the robbery conviction. See
footnote 4 of this opinion. Even if the petitioner’s argument possessed any
merit in the abstract, the fact that his federal habeas petition was dismissed
would obviate its applicability to his case.
10
The commissioner also argues that, because the petitioner did not argue
‘‘at trial or on appeal that the instant convictions are his only bar to reentry
to the United States,’’ we ‘‘should not reach the issue . . . the parties did
not explore, and the habeas court did not make factual findings on . . . .’’
The commissioner cites Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc., 311 Conn. 123, 84 A.3d 840 (2014), in support
of his argument that ‘‘this [c]ourt should not review the issue.’’ In citing to
Blumberg Associates Worldwide, Inc., the commissioner ignores language
in that case compelling this court to address the question of whether the
robbery conviction would serve as a permanent bar to the petitioner’s reentry
into the United States because that question implicates whether the operative
petition is moot and, thus, implicates our subject matter jurisdiction. See
id., 149 (‘‘Our cases have recognized a number of circumstances in which
the reviewing court not only can but is obligated to exercise its power to
review an unpreserved claim if certain conditions are met. First, this court
repeatedly has held that claims implicating subject matter jurisdiction may
be raised by the parties or by the court at any time . . . and must be
resolved once they are raised.’’ (Citation omitted.)); see also St. Juste v.
Commissioner of Correction, supra, 328 Conn. 209 n.10 (‘‘We released our
decision in State v. Jerzy G. [326 Conn. 206, 162 A.3d 692 (2017)], after the
parties filed their briefs in the present appeal but prior to oral argument.
The parties have filed supplemental briefs addressing the effect, if any, of
our decision in Jerzy G. on the present appeal, in response to our order
. . . .’’); St. Juste. v. Commissioner of Correction, supra, 208 (‘‘mootness
implicates the court’s subject matter jurisdiction’’ (internal quotation marks
omitted)). Because our order for supplemental briefing from the parties
involved questions that concern mootness and, thus, implicate subject matter
jurisdiction, it was proper for us both to issue the order and now to discuss
the questions raised therein.
11
General Statutes (Rev. to 2005) § 53a-62 (a) provides: ‘‘A person is guilty
of threatening in the second degree when: (1) By physical threat, such
person intentionally places or attempts to place another person in fear of
imminent serious physical injury, (2) such person threatens to commit any
crime of violence with the intent to terrorize another person, or (3) such
person threatens to commit such crime of violence in reckless disregard of
the risk of causing such terror.’’ The legislature made significant changes
to § 53a-62 since the events underlying the appeal in St. Juste v. Commis-
sioner of Correction, supra, 328 Conn. 201–202 n.3. See Public Acts 2017,
No. 17-111, § 4; Public Acts 2016, No. 16-67, § 7. Our references in this
opinion to § 53a-62 (a) are to the 2005 revision of the statute.
12
‘‘In general, the [board] and [the Second Circuit] have applied either a
categorical or a modified categorical approach to determine whether a
specific crime falls within a grounds for removability. . . . Under the cate-
gorical approach, a reviewing court look[s] to the elements and the nature
of the offense of conviction, rather than to the particular facts relating to
[the] petitioner’s crime. . . . This approach requires a court to focus on
the intrinsic nature of the offense, rather than on the singular circumstances
of an individual petitioner’s crimes, and only the minimum criminal conduct
necessary to sustain a conviction under a given statute is relevant. . . . In
describing the categorical approach, we have held that every set of facts
violating a statute must satisfy the criteria for removability in order for a
crime to amount to a removable offense; the [board] may not justify removal
based on the particular set of facts underlying an alien’s criminal conviction.
‘‘Under the modified categorical approach, however, a limited review of
a petitioner’s circumstances may be warranted where a statute of conviction
is divisible. . . . A statute is divisible if it encompasses multiple categories
of offense conduct, some, but not all, of which would categorically constitute
a removal offense. . . . In reviewing a conviction under a divisible statute,
we may refer to the record of conviction to ascertain whether a petitioner’s
conviction was under the branch of the statute that proscribes removable
offenses. . . . The record of conviction includes, inter alia, the charging
document, a plea agreement, a verdict or judgment of conviction, a record
of the sentence, or a plea colloquy transcript.’’ (Citations omitted; internal
quotation marks omitted.) Wala v. Mukasey, supra, 511 F.3d 107–108.
13
See St. Juste v. Commissioner of Correction, supra, 328 Conn. 204;
State v. Jerzy G., supra, 326 Conn. 210; State v. Aquino, supra, 279 Conn. 298.
14
See St. Juste v. Commissioner of Correction, supra, 328 Conn. 210;
State v. Jerzy G., supra, 326 Conn. 223; State v. Aquino, supra, 279 Conn.
298 n.3.
15
Although the petitioner does not argue that an exception applies under
8 U.S.C. § 1182 (a) (2) (A) (ii) to the robbery conviction constituting a crime
involving moral turpitude, we note that, indeed, no exception is available
to him because he was over the age of eighteen when he committed the
robbery; see 8 U.S.C. § 1182 (a) (2) (A) (ii) (I); and the maximum penalty
possible for the robbery conviction exceeds imprisonment for one year. See
8 U.S.C. § 1182 (a) (2) (A) (ii) (II); see also General Statutes § 53a-136 (b)
(‘‘[r]obbery in the third degree is a class D felony’’); General Statutes § 53a-
25 (a) (‘‘[a]n offense for which a person may be sentenced to a term of
imprisonment in excess of one year is a felony’’).
16
The petitioner argues that ‘‘a case does not become moot until [the]
petitioner is actually physically removed from the United States.’’ This argu-
ment, as it pertains to the facts presented in this case, has no merit. The
fact that the petitioner remains incarcerated in the United States has no
bearing on whether relief could be provided to him from his order of removal,
which eventually will result in his physical removal from the United States.
The petitioner has been ordered removed under the larceny convictions and
the robbery conviction, but has challenged only the larceny convictions in
the operative petition. Even if the petitioner were to succeed on the merits
of the operative petition, resulting in the larceny convictions being vacated,
the robbery conviction remains valid and will continue to support the peti-
tioner’s ordered removal and bar any future reentry into the United States.
See footnote 9 of this opinion.
17
In contrast to future involvement with the criminal justice system, which
is a recognized source of prejudicial collateral consequences from which
practical relief can be afforded; see part I C of this opinion; the potential
for a pardon is conjectural because, in the absence of one, we presume that
a conviction is valid. See Hinds v. Commissioner of Correction, supra, 321
Conn. 113; Myers v. Manson, supra, 192 Conn. 387.
18
The petitioner argues that the larceny convictions present him with
other forms of prejudicial collateral consequences while incarcerated, such
as adverse effects on his inmate level and eligibility for programs and parole
while in the commissioner’s custody. Because we conclude that the larceny
convictions, as a matter of law, give rise to a reasonable possibility of
prejudicial collateral consequences in connection with potential future
involvement with the criminal justice system, we do not reach these claimed
alternative sources of prejudicial collateral consequences.
19
In light of the petitioner’s ordered removal from the United States, it
is unclear whether he will face other collateral consequences presumed in
cases in which mootness is raised as an issue because the sentence of a
criminal conviction has been served, consequences such as community
stigma and decreased employment opportunities. See State v. McElveen,
supra, 261 Conn. 216. Irrespective of his impending removal from the United
States, however, the larceny convictions could be considered against the
petitioner in the future should he become involved in the criminal justice
system prior to the execution of his ordered removal. Because that potential-
ity is sufficient to give rise to prejudicial collateral consequences, we need
not consider whether the larceny convictions will affect the petitioner’s
ability to secure employment or his reputation in the community such that
they are legally cognizable prejudicial collateral consequences under the
circumstances presented in this case.
20
During the pendency of this appeal, Judge Sferrazza retired. As a result,
we remand the case to the habeas court to conduct a new trial on the merits
of the operative petition.