Safford v. Warden, State Prison

612 A.2d 1161, 223 Conn. 180, 1992 Conn. LEXIS 248

• Court: Supreme Court of Connecticut
• Decided: July 28, 1992
• Docket: 14452
• Status: Published

Opinions

Borden, J.

The petitioner appeals¹ from the judgment of the habeas corpus court, Scheinblum, J., denying his petition for a writ of habeas corpus, wherein he challenged his conviction of sexual assault in the first degree, in violation of General Statutes § 53a-70.² That conviction had been based upon the petitioner’s guilty plea before the trial court, Schaller, J., and the sentence imposed thereon by the trial court, Arena, J. The petitioner claims that the habeas court improperly denied his petition because: (1) Judge Arena was barred by the Code of Judicial Conduct from sentencing the petitioner;³ and (2) the conduct of the petitioner’s trial counsel was ineffective as a matter of law. We affirm the judgment of the habeas court.

The record discloses the following facts. According to the factual statement made by the state at the time of the petitioner’s guilty plea, the petitioner picked up the female victim, who had been hitchhiking in Hartford, in November, 1987. He took her to his apartment, where he forced her to engage in sexual intercourse by holding the jagged edge of a broken ashtray to her throat.

As a result of this incident, the petitioner was charged with the crimes of sexual assault in the first degree in violation of General Statutes § 53a-70; see footnote 2, supra; and unlawful restraint in violation of General Statutes § 53a-95. The petitioner pleaded not guilty and elected a jury trial. He was represented by attorney Gerald Klein, who also represented him on three prior pending charges, including another sexual assault charge in which the petitioner’s brother was a codefendant.⁴ On several occasions, Klein and the state’s attorney discussed the petitioner’s cases with Judge Arena, who was, at that time, the presiding judge of the criminal division of the Hartford judicial district.⁵

Although the case had been assigned to Judge James Higgins for trial, jury selection was conducted before Judge Schaller. The habeas court found that, during the third day of jury selection, Judge Arena was instrumental in procuring a plea bargain whereby he indicated that, in exchange for the petitioner’s plea of guilty to the charge of sexual assault in the first degree, he would impose a sentence of ten years imprisonment, execution suspended after five years, followed by four years probation. Judge Arena also indicated that the defendant could argue for a lesser sentence, and that he might be favorably disposed to a lesser sentence depending on the attitude of the victim.

Accordingly, on January 5, 1989, the defendant pleaded guilty to sexual assault in the first degree before Judge Schaller. The habeas court specifically found that, in the plea canvass, Judge Schaller fully informed the petitioner that Judge Arena had “put together the deal and that [Judge] Arena would be the sentencing judge.”⁶ At the subsequent sentencing proceeding before Judge Arena, on February 16, 1989, the petitioner sought to withdraw his guilty plea, claiming that he had been confused when he pleaded guilty. The court, Arena, J., denied his motion to withdraw his plea, and imposed a sentence of ten years imprisonment, execution suspended after five years, followed by four years probation.

The petitioner appealed from that judgment of conviction to the Appellate Court, claiming that the court, Arena, J., had improperly (1) failed to conduct an evidentiary hearing on his motion to withdraw his plea, and (2) sentenced the petitioner after actively participating in pretrial plea negotiations, thereby violating his federal and state constitutional rights to due process. State v. Safford, 22 Conn. App. 531, 532, 578 A.2d 152, cert. denied, 216 Conn. 823, 581 A.2d 1057 (1990). The Appellate Court rejected the petitioner’s claims. With respect to the second claim, which is the only claim of the petitioner’s direct appeal relevant here, the Appellate Court first noted that since the petitioner had failed to preserve that claim by moving for Judge Arena’s disqualification pursuant to Practice Book § 997,⁷ the claim could only be reviewed if it rose to the level of constitutional proportions. Id., 537. The court then stated that the prohibition against a judge participating in plea negotiations is not a constitutional matter, provided that the plea was not judicially coerced and thus voluntary. The court then concluded that since there was no evidence that Judge Arena’s participation in the plea bargain resulted in a judicially coerced or otherwise involuntary plea, the petitioner’s claim was not of constitutional proportions. Id., 537-38. Accordingly, the court concluded that, under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), the petitioner could not prevail on that claim. The Appellate Court also discerned from the record "the possibility that the defendant’s failure to make his objections known at the sentencing was not mere inadvertence but a trial tactic.” State v. Safford, supra, 538.

Meanwhile, the petitioner had brought this habeas corpus action. In this action, the petitioner pleaded four theories: (1) his plea had been involuntary because it was based upon misinformation supplied to him by his trial counsel; (2) his plea had been involuntary because it was based upon inadequate information supplied to him by his trial counsel; (3) his sentence was illegal because it had been improperly based upon extrarecord information within the knowledge of the sentencing judge; and (4) his trial counsel had been ineffective in giving him misinformation, in giving him inadequate information, and in failing to move for Judge Arena’s disqualification.

In its memorandum of decision, however, the habeas court considered the petitioner’s claims somewhat differently. The habeas court considered the petitioner to have raised three claims: (1) his plea of guilty had not been voluntary and knowing because Klein had misinformed him about the sentence and had failed to apprise him of exculpatory evidence that had been unearthed during Klein’s investigation on the petitioner’s behalf; (2) his trial counsel had been ineffective because he had failed to inform the petitioner about the purported exculpatory evidence and had failed to inform him fully about the sentence agreed upon with Judge Arena; and (3) his trial counsel had been ineffective because he had not requested Judge Arena’s disqualification.⁸ Since the petitioner has not at any time during this appeal challenged this reformulation by the habeas court of his claims therein, we view his appeal accordingly.

The habeas court rejected the petitioner’s claims. With respect to the first two claims, the habeas court concluded that the petitioner’s testimony was not credible, and that he had failed to meet his burden of proof of the underlying facts.⁹

With respect to the third claim, namely, that Klein had been ineffective by not requesting Judge Arena’s disqualification, the court concluded that there had been no basis for moving to disqualify Judge Arena, based upon Judge Arena’s knowledge of the petitioner’s other charges, which had been nolled, and Judge Arena’s knowledge of the disposition of the petitioner’s brother’s case.¹⁰ The court concluded that since, under State v. Huey, 199 Conn. 121, 505 A.2d 1242 (1986), a trial court in imposing sentence may consider information regarding counts that have not been prosecuted, Judge Arena was acting within his discretion in considering the charges that had been nolled. The court also found that Judge Arena had been instrumental in creating the plea bargain, and that the petitioner had been fully aware that Judge Arena would be the sen-fencing judge. The habeas court also noted that the petitioner’s own expert witness had indicated that he might not have moved to disqualify Judge Arena. Finally, the court concluded that any prohibition against a judge’s participation in plea bargaining is not a matter of constitutional dimension. Accordingly, the habeas court dismissed the petition. This appeal followed.

I

The petitioner’s principal claim on appeal is that Judge Arena was barred by Canon 3 (C) (1) of the Code of Judicial Conduct¹¹ from sentencing the petitioner. The petitioner argues that, irrespective of the propriety of the information that Judge Arena had at the time of sentencing, it was improper as a matter of law for Judge Arena to sentence the petitioner because Judge Arena had actively participated in the plea bargaining that led to the petitioner’s plea.

It is important to note what the petitioner does not argue with respect to this claim. The petitioner does not argue that his sentence was illegal because it had been based on improper information within the knowledge of the sentencing judge. Nor does he argue that his trial counsel had been ineffective in failing to move for Judge Arena’s disqualification. The petitioner’s claim is, rather, that his conviction should be set aside because Judge Arena’s active participation in the plea negotiations was a per se violation of Canon 3 (C) (1). We decline to review this claim.

First, this claim bears little, if any, resemblance to the petitioner’s claim involving Judge Arena’s conduct as the petitioner presented this case to the habeas court and as that court decided the case. In the habeas court, the petitioner’s claim regarding Judge Arena’s conduct was that his trial counsel had been ineffective in not moving for Judge Arena’s disqualification. The petitioner did not claim in the habeas court that, irrespective of Klein’s effectiveness, Judge Arena was required to disqualify himself as a matter of law.

Thus, the petitioner’s principal claim in this appeal does not present any of the issues that the petitioner submitted to the habeas court for decision. The petitioner has continued the course of appellate advocacy that he began on his direct appeal, namely, shifting the grounds of his claim on appeal when the grounds he had asserted in the trial court proved unavailing. See State v. Safford, supra, 537 (declining to review petitioner’s unpreserved claim because, except in exceptional circumstances, “appellate claims must be the product of trial counsel’s efforts, not those of appellate counsel sifting through the record after the fact, trawling for issues undreamt of at trial”). We see no reason in this case to depart from our general rule that legal claims not raised at trial are not cognizable on appeal. Miko v. Commission on Human Rights & Opportunities, 220 Conn. 192, 197 n.5, 596 A.2d 396 (1991) .

Our refusal to review the petitioner’s claim is particularly apt because this is a habeas corpus case. The petitioner pleaded guilty to sexual assault in the first degree and was sentenced in early 1989. His direct appeal was decided in August, 1990. This habeas corpus action was tried in December, 1990, and decided by the habeas court in January, 1991. The petitioner has had, therefore, more than three years, and three opportunities properly to challenge in court Judge Arena’s participation in his plea bargain—before Judge Arena himself, before the Appellate Court in his direct appeal, and before the habeas court. Therefore, on this, his fourth opportunity, the petitioner should at least be required to present on appeal the same claims that he presented to the habeas court, rather than presenting yet another appellate afterthought.

Furthermore, the writ of habeas corpus, as a vehicle to challenge a criminal conviction, is reserved for “convictions that violate fundamental fairness.” (Internal quotation marks omitted.) Bunkley v. Commissioner of Correction, 222 Conn. 444, 460-61, 610 A.2d 598 (1992). In order to be successful, a habeas corpus petitioner “must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal.”¹² (Internal quotation marks omitted.) Id., 461. Thus, ordinarily a habeas corpus petitioner must establish some fundamental constitutional violation entitling him to relief. Id. A claim that a judge should not have participated in plea negotiations, based solely upon the appearance of partiality, does not rise to the level of a constitutional violation. See Flores v. Estelle, 578 F.2d 80, 85 (5th Cir. 1978), cert. denied, 440 U.S. 923, 99 S. Ct. 1253, 59 L. Ed. 2d 477 (1979). Nor does it constitute a miscarriage of justice, or other prejudice justifying the issuance of a writ of habeas corpus.¹³

II

The petitioner also claims that the habeas court improperly concluded that the petitioner’s trial counsel had not rendered ineffective assistance to the petitioner. We disagree.

In this argument, the petitioner swaddles his first claim—that as a matter of law Judge Arena had been disqualified by Canon 3 (C) (1) of the Code of Judicial Conduct from sentencing the petitioner—in the hopeful mantle of a claim of ineffective assistance of counsel. Thus, he argues that, because Judge Arena was per se disqualified by Canon 3, Klein was duty bound to move for Judge Arena’s disqualification, despite Klein’s belief that, as the petitioner characterizes it in his brief, “it was the best bargain he could get.”¹⁴

The gist of the petitioner’s argument is as follows: “Had Judge Arena offered a suspended sentence to a misdemeanor plea, the analysis would not change. The habeas court’s determination that counsel was competent clearly rests not on the law but on the success of counsel’s performance. Counsel’s deal-making ability has no place in the analysis of a court’s appearance of partiality. It is axiomatic that the law and Code of Judicial Conduct does not protect the outcome of a case, it protects the process.” (Emphasis in original.)

Taken at its face value, this argument in support of a claim of ineffective assistance of counsel is almost frivolous. Criminal defendants, the criminal defense bar, the prosecution bar and the bench would be surprised, to say the least, to learn that the sixth amendment guarantee of effective assistance of counsel requires that we ignore the results of counsel’s performance on his client’s behalf and gauge that performance, not by whether it fell below the standard of reasonableness to the prejudice of the client, but by whether it sufficiently protected the purity of the criminal process. They would be equally surprised to learn that, even had Klein been able to secure from Judge Arena a suspended sentence to a misdemeanor plea on the facts of this case, his performance would have been constitutionally deficient.¹⁵

Viewed more charitably, the petitioner’s argument is simply without merit. “Establishing that counsel’s performance was deficient requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984)]. To demonstrate this the defendant must show that counsel’s representation fell below an objective standard of reasonableness. Id., 687-88. In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. Id., 688. Judicial scrutiny of counsel’s performance must be highly deferential, and courts must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Id., 689, quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 100 L. Ed. 83 (1955), reh. denied, 350 U.S. 955, 76 S. Ct. 340, 100 L. Ed. 831 (1956); see also Burger v. Kemp, 483 U.S. 776, 788-96, 107 S. Ct. 3114, 97 L. Ed. 2d 639 (1987); Darden v. Wainwright, 477 U.S. 168, 185-86, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986); Aillon v. Meachum, [211 Conn. 352, 357, 559 A.2d 200 (1989)]; Valeriano v. Bronson, 209 Conn. 75, 86, 546 A.2d 1380 (1988); Levine v. Manson, 195 Conn. 636, 640, 490 A.2d 82 (1985).” (Internal quotation marks omitted.) Fair v. Warden, 211 Conn. 398, 403-404, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S. Ct. 512, 107 L. Ed. 2d 514 (1989). Gauging Klein’s conduct by this standard, we agree with the habeas court that his performance as the petitioner’s counsel was not ineffective.

As State v. Niblack, 220 Conn. 270, 280, 596 A.2d 407 (1991), makes clear, there was no basis for a motion to disqualify Judge Arena.¹⁶ Furthermore, Judge Arena was entitled to take into account the petitioner’s other charges in imposing sentence. State v. Huey, supra, 126-27. Moreover, the petitioner does not challenge Klein’s judgment that the sentence suggested by Judge Arena was the best disposition he would have been able to secure for his client. Under these circumstances, the petitioner has not established that Klein rendered him ineffective assistance of counsel.

The judgment is affirmed.

In this opinion Peters, C. J., Callahan and Glass, Js., concurred.

1 Upon a grant of certification to appeal; see General Statutes § 52-470 (b); the petitioner appealed from the judgment of the habeas corpus court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book 5 4023.

2 General Statutes § 53a-70 provides: “SEXUAL ASSAULT IN the first DEGREE: CLASS B FELONY: ONE YEAR NOT SUSPENDABLE. (a) A person is guilty of sexual assault in the first degee when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person, or (2) engages in sexual intercourse with a person under thirteen years of age.

“(b) Sexual assault in the first degree is a class B felony for which one year of the sentence imposed may not be suspended or reduced by the court.”

3 Although the petitioner in his brief in this court purports to raise two separate claims regarding the necessity for Judge Arena’s disqualification, we can discern no analytical difference between the two claims. We therefore consider them as one claim.

4 The petitioner’s brother was represented by independent counsel.

5 Although Judge Arena’s status as the presiding judge is not specifically described as such in this record, such status is apparent from the context in which the various proceedings took place, and is confirmed by the assignment of judges for the period February, 1988, through September, 1989, published in the Connecticut Law Journal. Assignment of Judges, Vol. 49, C.L.J., No. 34, pp. 1B-11B (February 23, 1988). Among the responsibilities of the presiding judge are “[ejxpediting the disposition, fairly, of the court business to which such judge has been entrusted,” and “[ajpportioning among the judges the judicial business to which such judge and other judges have been assigned.” Id., p. 3B.

6 The plea canvass before Judge Schaller discloses the following colloquy:

“The Court: Now perhaps counsel would state what the status of the plea agreement, or the recommendation from the sentencing judge is. I can verify that, because I did also speak directly with Judge Arena, and we can be sure that we all agree on what Judge Arena has said. Mr. Klein?

“Mr. Klein: We did discuss the matter with Judge Arena, and he was familiar with the facts of the case from prior pretrials. And after discussing my client’s background with him and some of the possible defenses, should the matter go all the way through trial, he indicated that on a guilty plea, it would be his inclination at this time to impose a sentence of 10 years suspended, after serving five years, and a period of probation; that I would have the right after a PSI, a presentence report, to ask for a lesser sentence, but that he would probably only be inclined to sentence Mr. Safford to a lesser term of imprisonment if something came up in terms of the position of the victim, who I’m sure will have some input into the presentence report. So essentially, it’s a ten-year, suspended after five year cap, with the right to argue for a lesser term of imprisonment.

“The Court: And I understand a four-year probation period? That’s what was told to me by Judge Arena; four years of probation?

“Mr. Klein: Yes.

“The Court: And in addition, that Judge Arena would be free to impose any special conditions on the probation that he saw fit to impose.

“Mr. Klein: Yes. I’ve discussed that with Mr. Safford, and there would be no contact with the complainant, etc.

“The Court: Regardless, Judge Arena is not restricted at all, as far as what special conditions he can impose.

“Mr. Klein: Right. Yes; that’s correct.

“The Court: Mr. Carlson, does that accord with your understanding?

“Mr. Carlson: That’s what I heard Judge Arena say. Yes, Sir.

“The Court: OK. And Mr. Safford, do you understand exactly the status of the plea agreement at this point?

“The Defendant: Yes, Sir.

“The Court: OK. Let me just restate it, and that is, Judge Arena has indicated that he would impose a sentence of ten years, suspended after five years, followed by four years of probation, with any special conditions of probation he thinks are reasonable or appropriate in this case. You, Mr. Safford, and your attorney have the right to argue for a lesser sentence. However, if Judge Arena chooses to impose a sentence of ten years, suspended after five, with four years of probation, you do not have any right to withdraw your plea. He is free to impose that sentence. It’s what we call a cap. If Judge Arena chooses to impose a longer sentence, more jail time, then you would have the opportunity to withdraw your guilty plea, but—so that Judge Arena has committed himself, in a sense, to sentencing you to no more than ten years, suspended after five, followed by four years of probation. Do you understand that exactly?

“The Defendant: Yes, Sir.

“The Court: And there is no—he is not committed to imposing a lesser sentence. He is free to read the presentence and impose this sentence of ten, suspended after five, if he chooses to do that. You have the right to argue for—your attorney has the right to argue for less.

“Mr. Klein: That’s our understanding, Your Honor.

“The Defendant: Yes, Sir.

“The Court: And Judge Arena is not bound to impose that. He can choose to impose a longer sentence; longer in the total length or longer in jail time. But if he does that, I’m sure he will give you the opportunity to withdraw your plea and have a trial. But if he chooses to impose that sentence, or something less, then your plea is final once I accept it today. You have no right to withdraw your plea and change your mind. Do you understand that?

“The Defendant: Yes, Sir.

“The Court: Is that what you wish to do?

“The Defendant: Yes, Sir.

“The Court: OK. Have any other promises been made to you by anyone to cause you to plead guilty?

“The Defendant: No.”

7 Practice Book § 997 provides: “A motion to disqualify a judicial authority shall be in writing and shall be accompanied by an affidavit setting forth the facts relied upon to show the grounds for disqualification and a certificate of the counsel of record that the motion is made in good faith. The motion shall be filed no less than ten days before the time the case is called for trial or hearing, unless good cause is shown for failure to file within such time.”

8 The petitioner also claimed that his trial counsel had been ineffective because he had not assisted the petitioner in the petitioner’s attempt to withdraw his guilty plea. The habeas court rejected that claim as controlled by the petitioner’s direct appeal, State v. Safford, 22 Conn. App. 531, 578 A.2d 152, cert. denied, 216 Conn. 823, 581 A.2d 1057 (1990). The petitioner has not challenged that ruling in this appeal.

9 Specifically, the habeas court found “not credible” the petitioner’s testimony that he did not know what the sentence was going to be when he pleaded guilty. Indeed, the colloquy among the trial court, Schaller, J., the defendant’s trial counsel, and the petitioner; see footnote 6, supra; all but vitiates the petitioner’s claim of ignorance. With respect to the petitioner’s claim regarding the purported exculpatory evidence—a written statement, secured by the investigator employed by Klein, of a woman who had lived in the apartment below the petitioner’s apartment at the time of the offense—the habeas court specifically found that the statement was not specific regarding dates or times. The habeas court found, furthermore, that Klein had deemed the statement to be equivocal at best and that the witness if called might be more harmful than helpful to the defense, and that Klein had discussed the statement with the petitioner on more than one occasion. The habeas court concluded that Klein’s tactical decision not to call the witness or to order follow-up investigation was reasonable and did not fall below the standard of competent counsel.

10 The petitioner’s brother had been sentenced to sixteen years imprisonment for sexual assault. The petitioner does not, however, make any claim that Judge Arena was biased in fact against the petitioner as a result of this information, or used this information to enhance the previously agreed upon sentence of the petitioner.

11 The part of Canon 3 (C) (1) on which the petitioner relies provides as follows: “a judge should perform the duties of his office impartially AND DILIGENTLY.

“The judicial duties of a judge take precedence over all his other activities. His judicial duties include all the duties of his office prescribed by law. In the performance of these duties, the following standards apply:

* * *

“C. Disqualification.

“(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:

“(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding . . . .” (Emphasis added.)

Although in his brief the petitioner cites this entire part of Canon 3, it is clear from the text of his argument that he does not claim that Judge Arena had in fact “a personal bias or prejudice” against him. Rather, the gist of his argument is that Judge Arena’s knowledge of his other cases and of his brother’s case created the appearance of a lack of impartiality in violation of Canon 3. Indeed, the habeas court record is bereft of any evidence or claim by the petitioner that Judge Arena was in fact biased or prejudiced against the petitioner.

12 Indeed, we have recently held that State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and thus by necessary implication, State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), which permit an appellant under exceptional circumstances to prevail on appeal upon the basis of an unpreserved constitutional trial claim, do not apply to habeas corpus actions. Johnson v. Commissioner of Correction, 218 Conn. 403, 415-16, 589 A.2d 1214 (1991).

13 Although it should not be necessary to do so, we are constrained once again; see Bunkley v. Commissioner of Correction, 222 Conn. 444, 463 n.17, 610 A.2d 598 (1992); to respond to the baseless fear expressed in the concurring opinion that we have some unexpressed “true purpose,” unexpressed “direction” or unexpressed “goal”; see concurring opinion, infra; to effectuate in some future case an evisceration of the proper use of the writ of habeas corpus. We do not. Indeed, as the concurring opinion grudgingly acknowledges, our reference to a constitutional violation as a predicate for the issuance of the writ is preceded by the adverb “ordinarily.” Obviously, that does not mean “exclusively,” although, as the concurring opinion also acknowledges, most habeas corpus cases are predicated on constitutional violations, and the writ stands as a bulwark against convictions that violate “fundamental fairness,” a criterion that obviously refers to the due process clause. Nor, apparently, does the concurring opinion take issue with the established federal and state precedent that a successful habeas corpus petitioner “must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal. Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed. 2d 417, reh. denied, 369 U.S. 808, 82 S. Ct. 640, 7 L. Ed. 2d 556 (1962). D’Amico v. Manson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984); see also Bowers v. Warden, 19 Conn. App. 440, 441, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989).” (Internal quotation marks omitted.) Bunkley v. Commissioner of Correction, supra, 461. When and if a habeas case arises where the petitioner has established a miscarriage of justice or other prejudice, not involving a constitutional violation but nonetheless requiring the issuance of the writ pursuant to the law, we will perform our judicial duties accordingly. In sum, we say what we mean, and have no hidden agendas. We know what the writ of habeas corpus means. See, e.g., Phillips v. Warden, 220 Conn. 112, 595 A.2d 1350 (1991). Gratuitous expressions of concern for what we have not said and do not mean are simply unnecessary.

14 Klein testified in the habeas court that he had wanted Judge Arena to be the sentencing judge “[b]ecause he’s the one that offered him what I felt was a low sentence.”

15 Indeed, we can only imagine this petitioner’s reaction had Klein in fact secured such a plea bargain from Judge Arena, but then informed the petitioner that the petitioner’s constitutional right to the effective assistance of counsel required that his counsel move to disqualify Judge Arena and, therefore, required the petitioner to forfeit the benefit of such a favorable bargain.

16 Lest there be any lingering doubts, however, regarding the propriety of Judge Arena’s conduct, we note that we have specifically approved of the procedure followed in reaching a plea agreement where “[t]he judge was responsible for conducting plea negotiations and, if an agreement was reached, for holding a plea and sentencing hearing. If negotiations were not successful, however, a judge who was not involved in the plea negotiations would have presided at trial and pronounced sentence if the defendant were found guilty.” State v. Niblack, 220 Conn. 270, 280, 596 A.2d 407 (1991). That procedure was essentially followed here where, although Judge Schaller conducted the plea proceeding, Judge Arena conducted both the plea negotiations and the sentencing proceeding.

Such a procedure must be distinguished from the situation where the judge who participates in plea negotiations is also responsible for conducting the trial and, therefore, for sentencing the defendant in the event of a conviction. In that situation, the dangers we identified in State v. Gradzik, 193 Conn. 35, 47, 475 A.2d 269 (1984), are present. Those dangers are that (1) the trial judge’s impartiality may truly be compromised by his own perception of "a personal stake in the agreement,” resulting in resentment of the defendant who rejects his suggested disposition, (2) the defendant may “make incriminating concessions during the course of plea negotiations,” and (3) the trial judge may become or appear to become an advocate for his suggested resolution. Id.

These concerns are not present in a case such as the petitioner’s original trial, however, where the presiding judge, without communication to the judge who will conduct the trial, participates in plea negotiations. As long as the defendant is free to reject the plea offer and go to trial before a judge who was not involved in or aware of those negotiations, he is not subject to any undue pressure to agree to the plea agreement, and the impartiality of the judge who will sentence him in the event of conviction after trial is not compromised.