author: Peters, C. J.

text:
    International Brotherhood of Police Officers, Local 564 v. Borough of Jewett City National Association of Government Employees, Local RI-152 v. Borough of Jewett City
    (15067)
    (15068)
    Peters, C. J., and Callahan, Berdon, Norcott and Katz, Js.

      Argued May 31—decision
    released July 4, 1995

      Beth Z. Margulies, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles A. Overend, assistant attorney general, for the appellant in both cases (intervening defendant).

      Douglas G. Adkins, with whom was Benjamin M. Wenograd, for the appellees (plaintiff in each case).
   Peters, C. J.

The Municipal Employees Relations Act (MERA), General Statutes § 7-467 et seq., imposes compulsory arbitration on a municipality and the representatives of its employees whenever the parties have reached an impasse in their collective bargaining. The issue in these cases is whether the procedures statutorily prescribed for such compulsory arbitration govern stipulated arbitral awards arising out of the subsequent agreement of the parties on all disputed issues. We conclude that, when the parties expressly waive their rights under the compulsory arbitration statute, such stipulated awards are properly characterized as collective bargaining agreements, governed by General Statutes § 7-474, rather than arbitration decisions governed by General Statutes § 7-473c.

Each of the plaintiffs, the National Association of Government Employees, Local RI-52, and the International Brotherhood of Police Officers, Local 564 (unions), had a collective bargaining agreement with the defendant, the borough of Jewett City, that expired on July 1,1992. Because the parties were at an impasse, the Connecticut state board of mediation and arbitration, acting pursuant to § 7-473c (b), imposed binding arbitration upon them and appointed an arbitration panel to hear their disputes.

After several days of hearings before the arbitration panel, the unions and the defendant reached complete agreements on all unresolved issues. As a result, on May 11,1993, the unions and the defendant “agree[d] to waive the provisions of Conn. Gen. Stat. § 7-473c and stipulate^] to the attached collective bargaining agreement as the award of the panel of arbitrators . . . .” That same day, the arbitration panel issued, as its awards, the unsigned collective bargaining agreements of the parties.

On March 31,1993, No. 93-4 of the 1993 Special Acts was enacted, authorizing a receivership for the defendant. The receivership was established on June 12,1993, and, on June 23, 1993, the governor appointed C. Francis Driscoll as the receiver to manage the defendant’s fiscal affairs.

On June 22, 1993, the unions filed applications for confirmation of the stipulated awards pursuant to General Statutes § 52-417. The unions cited the borough as the defendant, but in each case the receiver was subsequently permitted to intervene as a party defendant. Without filing motions to vacate, modify or correct the awards, the receiver sought to have the applications to confirm dismissed or denied for lack of jurisdiction. The trial court, M. Hennessey, J., denied the receiver’s motions to dismiss and the trial court, O’Neill, J., granted the unions’ applications to confirm. The receiver appealed from the judgments of the trial court to the Appellate Court, and we transferred the appeals to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

The receiver’s appeals raise three issues. He maintains that the trial court improperly concluded that § 52-417 authorized judicial confirmation of the stipulated awards because: (1) an award resulting from the stipulation of the parties is a collective bargaining agreement governed by § 7-474 rather than an arbitral award governed by § 7-473c and therefore § 52-417 is inapplicable; (2) the jurisdiction of the trial court to confirm an arbitral award can be challenged either by a motion to dismiss or by an objection to an application to confirm the award; and (3) the procedural requirements of § 52-417 do not govern compulsory arbitral awards under § 7-473c. Because we agree with the receiver that, in the circumstances of this case, reversal of the trial court’s judgments is required on the first issue, we need not address the others.

I

Analysis of the competing claims of the parties in these appeals requires examination of the statutory background of municipal employee collective bargaining. MERA empowers the state board of mediation and arbitration to impose mandatory binding arbitration whenever collective bargaining negotiations between municipalities and the representatives of their employees have reached an impasse. General Statutes § 7-473c (b). “The evident purpose of the compulsory arbitration feature of § 7-473c is to avoid strikes and their attendant disruptions of municipal services by providing a mechanism to resolve by arbitration those issues concerning which the parties to an expiring municipal collective bargaining agreement have been unable to reach agreement by negotiations.” Carofano v. Bridgeport, 196 Conn. 623, 631, 495 A.2d 1011 (1985).

The mandatory binding arbitration that is authorized by MERA does not permit the arbitration panel to exercise the broad discretion normally associated with consensual arbitration. Section 7-473c (d) limits the discretion of the arbitration panel in two significant respects. First, with regard to any issue that the parties have not been able to resolve themselves, the statute confines the discretion of the arbitration panel to a choice between the “last best offer” of one party or another. General Statutes § 7-473c (d) (1). “This narrowing of the scope of arbitrator discretion to a choice between two proposals as formulated by the parties upon an unresolved issue significantly circumscribes what might otherwise be deemed [an unconstitutionally] broad delegation of legislative power.” Carofano v. Bridgeport, supra, 196 Conn. 635. Second, in the exercise of a choice between one or another “last best offer,” the arbitration panel must “give priority to the public interest and the financial capability of the municipal employer . . . .” General Statutes § 7-473c (d) (2). This further limitation on arbitral discretion lends additional support to the constitutional validity of MERA. Carofano v. Bridgeport, supra, 635.

When an arbitration panel exercises the limited discretion conferred upon it by MERA, the “decision of the panel and the resolved issues” ordinarily are final and binding upon the municipal employer and the union. General Statutes § 7-473c (d) (3). Pursuant to § 7-473c (d) (5), however, the legislative body of the municipal employer may reject the award by “a two-thirds majority vote of the members of such legislative body present at a regular or special meeting called and convened for such purpose.” Such a rejection triggers further mandatory arbitral review of each “rejected issue” by a new arbitration panel that must take as its point of departure the unresolved issues initially considered by the original arbitration panel. General Statutes § 7-473c (d) (5). The award of the new arbitration panel, or of the original panel in the absence of a legislative rejection, may be vacated or modified upon appeal to the Superior Court on one of the limited grounds for judicial review stated in General Statutes §§ 52-418 and 52-419. See General Statutes § 7-473c (d) (3) and (5).

MERA does not, however, require municipalities and the representatives of their employees to rely completely and exclusively on the arbitration proceedings authorized by § 7-473c. Pursuant to § 7-474, the parties continue to have the power to reach an acceptable collective bargaining agreement through negotiation, although they are required, by subsection (b), to reduce such an agreement to writing. More significantly, subsection (b) goes on to provide: “Except where the legislative body is the town meeting, a request for funds necessary to implement such written agreement and for approval of any provisions of the agreement which are in conflict with any charter, special act, ordinance, rule or regulation adopted by the municipal employer or its agents ... or any [otherwise applicable] general statute . . . shall be submitted by the bargaining representative of the municipality within fourteen days of the date on which such agreement is reached to the legislative body which may approve or reject such request as a whole by a majority vote of those present and voting on the matter . . . .” In contradistinction to arbitral awards under § 7-473c, therefore, collective bargaining agreements are subject to municipal legislative rejection by a simple majority vote rather than by a two-thirds majority vote. Furthermore, § 7-474 contains no provision for the appointment of an arbitration panel to review legislative rejection of a collective bargaining agreement and does not authorize judicial review in accordance with the procedures of §§ 52-418 or 52-419.

II

The current appeals require us to determine what procedures the legislature contemplated in circumstances that include, on the one hand, aspects of compulsory arbitration under § 7-473c and, on the other hand, aspects of collective bargaining under § 7-474. The significant undisputed facts are that, subsequent to the proper initiation of arbitration hearings, the parties reached an agreement on all unresolved issues and manifested that agreement by waiving the provisions of § 7-473c and by presenting their negotiated collective bargaining agreements to the arbitration panel for issuance as the panel’s stipulated awards.

As a result of the agreements of the parties, the arbitration panel had no occasion to exercise the functions ordinarily contemplated by § 7-473c (d) (1). The subdivision states that the panel “shall issue . . . its decision on all unresolved issues set forth in the arbitration statement .... The panel shall treat each unresolved issue set forth in the arbitration statement as a separate question to be decided by it. In deciding each such question, the panel agreement shall accept the final provision relating to such unresolved issue as contained in the statement of last best offer of one party or the other. As part of the arbitration decision, each member shall state the specific reasons and standards used in making his choice on each unresolved issue.” In § 7-473c (d) (1) and (f), the legislature expressly provided authority, however, for the parties to file a joint stipulation “modifying, deferring or waiving any or all provisions” of the subdivision or of the section as a whole.

Considering the import of these various provisions within § 7-473c, we must determine the extent to which the legislature intended to limit the authority of the parties to modify the arbitration procedures contemplated by the statute. Once an impasse in collective bargaining has led to the imposition of compulsory arbitration, must the arbitration process be completed and an arbitral award be issued, or do the parties retain the power to substitute consensual collective bargaining for the exercise of arbitral judgment? Apart from the waiver provisions and the implications to be drawn therefrom, the parties have pointed to no definitive language to resolve this issue, either in the text of the statute or in the legislative history.

“We approach this question according to well established principles of statutory construction designed to further our fundamental objective of ascertaining and giving effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citation omitted; internal quotation marks omitted.) Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 499, 646 A.2d 1289 (1994); West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 507-508, 636 A.2d 1342 (1994); Peck v. Jacquemin, 196 Conn. 53, 63-66, 491 A.2d 1043 (1985). We are obligated to search for a construction of the statute that makes a harmonious whole of its constituent parts. Dept. of Administrative Services v. Employees’ Review Board, 226 Conn. 670, 679, 628 A.2d 957 (1993); Concerned Citizens of Sterling, Inc. v. Connecticut Siting Council, 215 Conn. 474, 482-83, 576 A.2d 510 (1990); Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 575, 522 A.2d 763 (1987).

In light of the legislature’s detailed description of the limited powers of the arbitration panel authorized by § 7-473c (d), we are persuaded that the legislature intended this statutory procedure to complement rather than to displace the process of collective bargaining. As the unions themselves acknowledge in their briefs, “the structure of mandatory binding arbitration is designed to encourage the parties to settle their disputes.” In its search for an orderly process that would avoid the disruption of labor stoppages by municipal employees, the legislature focused the authority of the arbitration panel on the parties’ own last best offers in order to facilitate continued collective bargaining even after the parties had found themselves at an impasse. The waiver provisions in § 7-473c underscore the importance that the legislature assigned to protection of the parties’ autonomous control over their labor relations. Having reserved for the parties the right to waive § 7-473c proceedings in their entirety, the legislature is unlikely to have intended that the parties would irretrievably relinquish the right to resolve their differences through collective bargaining once compulsory arbitration has begun.

The question then becomes how the parties can effectively manifest the fact that they have returned to the bargaining table to resolve the remaining issues on which they had previously been in disagreement. In effect, the unions argue that consent to the issuance of a stipulated award by the arbitration panel reflects the understanding of the parties that, rather than relying on collective bargaining, they are continuing to invoke the authority of the arbitration panel to render an arbitration decision. The receiver argues, to the contrary, that the ministerial recording of collective bargaining agreements as stipulated arbitral awards does not automatically transform the agreements into full-blown arbitration “decisions” so as to trigger judicial review pursuant to §§ 52-418 and 52-419. The receiver emphasizes that, in enacting § 7-473c (d), the legislature directed the arbitration panel to exercise its discretion in choosing among the parties’ last best offers and that a stipulated award derived entirely from the agreement of the parties, because it preserves no opportunity for the exercise of arbitral discretion, is not within the contemplation of the statute. As the receiver observes, if the legislature had wished to provide that arbitral awards derived from settlement of the parties’ disputes, rather than from a decision of the arbitrators, would have the same status and effect as other arbitral awards, the legislature could have so stated, as it did expressly in enacting General Statutes § 50a-130. See Electrical Contractors, Inc. v. Tianti, 223 Conn. 573, 583, 613 A.2d 281 (1992); Buonocore v. Branford, 192 Conn. 399, 403, 471 A.2d 961 (1984). We agree with the receiver and conclude, therefore, that stipulated awards are not automatically arbitral awards for the purposes of §§ 7-473c and 52-417.

We are persuaded that the stipulated awards incorporating in their entirety the collective bargaining agreements of the parties were not, in the context of these cases, arbitral awards that conferred jurisdiction on the Superior Court pursuant to § 52-417. That context includes the parties’ concomitant express waivers of further proceedings pursuant to § 7-473c. These waivers cast serious doubt on the continued existence of the statutory underpinning for invocation of judicial review pursuant to §§ 52-418 and 52-419, because access to such judicial review depends upon the applicability of § 7-473c (d). In this context, the fact that the arbitration panel attached the label “stipulated award” to each stipulated collective bargaining agreement does not alter the reality that the awards represented nothing other than the parties’ own agreements resolving all remaining issues between them.

In the absence of actual arbitral awards by the arbitration panel as contemplated by § 7-473c, the trial court lacked subject matter jurisdiction under § 52-417 to consider the applications for confirmation filed by the unions. There is no common law right to judicial review of a collective bargaining agreement. There is similarly no common law right to judicial review of a compulsory arbitral award that is itself the creature of statute. The absence of compliance with the statutory requirements for such an award deprived the trial court of jurisdiction just as the absence of compliance with statutory requirements for administrative appeals deprives trial courts of jurisdiction. See Summit Hydropower Partnership v. Commissioner of Environmental Protection, 226 Conn. 792, 799, 629 A.2d 367 (1993); Tarnopol v. Connecticut Siting Council, 212 Conn. 157, 163, 561 A.2d 931 (1989); Park City Hospital v. Commission on Hospitals & Health Care, 210 Conn. 697, 702, 556 A.2d 602 (1989). The trial court, therefore, should have granted the receiver’s motions to dismiss.

The judgments are reversed and the cases are remanded to the trial court with direction to render judgments dismissing the plaintiffs’ applications.

In this opinion the other justices concurred.

       General Statutes § 7-474 provides in relevant part: “NEGOTIATIONS AND AGREEMENTS BETWEEN MUNICIPALITY AND EMPLOYEE REPRESENTATIVES. FEDERAL APPROVAL. ELECTIVE BINDING ARBITRATION; PROCEDURE; APPORTIONMENT OF costs, (a) Except as hereinafter provided, when an employee organization has been designated, in accordance with the provisions of sections 7-467 to 7-477, inclusive, as the exclusive representative of employees in an appropriate unit, the chief executive officer, whether elected or appointed, or his designated representative or representatives, shall represent the municipal employer in collective bargaining with such employee organization.
      “(b) Any agreement reached by the negotiators shall be reduced to writing. Except where the legislative body is the town meeting, a request for funds necessary to implement such written agreement and for approval of any provisions of the agreement which are in conflict with any charter, special act, ordinance, rule or regulation adopted by the municipal employer or its agents, such as a personnel board or civil service commission, or any general statute directly regulating the hours of work of policemen or firemen or any general statute providing for the method or manner of covering or removing employees from coverage under the Connecticut municipal employees’ retirement system or under the Policemen and Firemen Survivors’ Benefit Fund shall be submitted by the bargaining representative of the municipality within fourteen days of the date on which such agreement is reached to the legislative body which may approve or reject such request as a whole by a majority vote of those present and voting on the matter; but, if rejected, the matter shall be returned to the parties for further bargaining. . . . Such request shall be- considered approved if the legislative body fails to vote to approve or reject such request within thirty days of the end of the fourteen-day period for submission to said body. Where the legislative body is the town meeting, approval of the agreement by a majority of the selectmen shall make the agreement valid and binding upon the town and the board of finance shall appropriate or provide whatever funds are necessary to comply with such collective bargaining agreement.
      “(c) Notwithstanding any provision of any general statute, charter, special act or ordinance to the contrary, the budget-appropriating authority of any municipal employer shall appropriate whatever funds are required to comply with a collective bargaining agreement, provided the request called for in subsection (b) of this section has been approved by the legislative body of such municipal employer, or with a collective bargaining agreement approved as the result of an arbitration decision rendered in an impasse of contract negotiations under section 7-472, or rendered in accordance with the provisions of section 7-473c.”

       General Statutes § 7-473c provides in relevant part: “neutral arbitrator SELECTION COMMITTEE. PANEL OF NEUTRAL ARBITRATORS. MANDATORY BINDING ARBITRATION; PROCEDURE; APPORTIONMENT OF COSTS. REJECTION OF AWARD BY LEGISLATIVE BODY OF THE MUNICIPAL EMPLOYER. SECOND ARBITRATION FORMAT. . . .
      “(b) If neither the municipal employer nor the municipal employee organization has requested the arbitration services of the State Board of Mediation and Arbitration (1) within one hundred eighty days after the certification or recognition of a newly certified or recognized municipal employee organization required to commence negotiations pursuant to section 7-473a, or (2) within thirty days after the expiration of the current collective bargaining agreement . . . or . . . the date the parties to an existing collective bargaining agreement commence negotiations to revise said agreement on any matter affecting wages, hours, and other conditions of employment, said board shall notify the municipal employer and municipal employee organization that . . . binding and final arbitration is now imposed on them .... Within ten days of receipt of such notification, the chief executive officer of the municipal employer and the executive head of the municipal employee organization each shall select one member of the arbitration panel. Within five days of their appointment, the two members of the arbitration panel shall select a third member, who shall be an impartial representative of the interests of the public in general and who shall be selected from the panel of neutral arbitrators appointed pursuant to subsection (a) of this section. Such third member shall be the chairman of the panel. . . .
      “(c) Within ten days of appointment of the chairman, the arbitration panel shall, by call of its chairman, hold a hearing within the municipality involved.
      “(d) (1) The hearing may, at the discretion of the panel, be continued and shall be concluded within twenty days after its commencement. Not less than two days prior to the commencement of the hearing, each party shall file with the chairman of the panel, and deliver to the other party, a proposed collective bargaining agreement, in numbered paragraphs, which such party is willing to execute and cost data for all provisions of such proposed agreement. At the commencement of the hearing each party shall file with the panel a reply setting forth (A) those paragraphs of the proposed agreement of the other party which it is willing to accept, and (B) those paragraphs of the proposed agreement of the other party which it is unwilling to accept, together with any alternative contract language which such party would accept in lieu of those paragraphs of the proposed agreement of the other party which it is unwilling to accept. At any time prior to the issuance of a decision by the panel, the parties may jointly file with the panel stipulations setting forth the agreement provisions which both parties have agreed to accept. Within five days after the conclusion of the taking of testimony, the panel shall forward to each party an arbitration statement, approved by a majority vote of the panel, setting forth all agreement provisions agreed upon by both parties in the proposed agreements and the replies, and in the stipulations, and stating, in numbered paragraphs, those issues which are unresolved. Within ten days after the conclusion of the taking of the testimony, the parties shall file with the secretary of the State Board of Mediation and Arbitration five copies of their statements of last best offer setting forth, in numbered paragraphs corresponding to the statement of unresolved issues contained in the arbitration statement, the final agreement provisions proposed by such party. Immediately upon receipt of both statements] of last best offer or upon the expiration of the time for filing such statements of last best offer, whichever is sooner, said secretary shall distribute a copy of each such statement of last best offer to the opposing party. Within seven days after the distribution of the statements of last best offer or within seven days of the expiration of the time for filing the statements of last best offer, whichever is sooner, the parties may file with the secretary of the State Board of Mediation and Arbitration five copies of their briefs on the unresolved issues. Immediately upon receipt of both briefs or upon the expiration of the time for filing such briefs, whichever is sooner, said secretary shall distribute a copy of each such brief to the opposing party. Within five days after the distribution of the briefs on the unresolved issues or within five days after the last day for filing such briefs, whichever is sooner, each party may file with said secretary five copies of a reply brief, responding to the briefs on the unresolved issues. Immediately upon receipt of the reply briefs or upon the expiration of the time for filing such reply briefs, whichever is sooner, said secretary shall simultaneously distribute a copy of each such reply brief to the opposing party. Within twenty days after the last day for filing such reply briefs, the panel shall issue, upon majority vote, and file with the State Board of Mediation and Arbitration its decision on all unresolved issues set forth in the arbitration statement, and said secretary shall immediately and simultaneously distribute a copy thereof to each party. The panel shall treat each unresolved issue set forth in the arbitration statement as a separate question to be decided by it. In deciding each such question, the panel agreement shall accept the final provision relating to such unresolved issue as contained in the statement of last best offer of one party or the other. As part of the arbitration decision, each member shall state the specific reasons and standards used in making his choice on each unresolved issue. The parties may jointly file with the panel stipulations modifying, deferring or waiving any or all provisions of this subsection. . . .
      “(2) In arriving at a decision, the arbitration panel shall give priority to the public interest and the financial capability of the municipal employer, including consideration of other demands on the financial capability of the municipal employer. The panel shall further consider the following factors in light of such financial capability: (A) The negotiations between the parties prior to arbitration; (B) the interests and welfare of the employee group; (C) changes in the cost of living; (D) the existing conditions of employment of the employee group and those of similar groups; and (E) the wages, salaries, fringe benefits, and other conditions of employment prevailing in the labor market, including developments in private sector wages and benefits.
      “(3) The decision of the panel and the resolved issues shall be final and binding upon the municipal employer and the municipal employee organization except as provided in subdivision (5) of this subsection and, if such award is not rejected by the legislative body pursuant to said subdivision, except that a motion to vacate or modify such decision may be made in accordance with sections 52-418 and 52-419. . . .
      “(5) Within twenty-five days of the receipt of an arbitration award issued pursuant to this section, the legislative body of the municipal employer may reject the award of the arbitrators or single arbitrator by a two-thirds majority vote of the members of such legislative body present at a regular or special meeting called and convened for such purpose. Within ten days after such rejection, the legislative body or its authorized representative shall be required to state, in writing, the reasons for such vote and shall submit such written statement to the State Board of Mediation and Arbitration and the municipal employee organization. Within ten days after receipt of such notice, the municipal employee organization shall prepare a written response to such rejection and shall submit it to the legislative body and the State Board of Mediation and Arbitration. Within ten days after receipt of such rejection notice, the State Board of Mediation and Arbitration shall select a review panel of three arbitrators or, if the parties agree, a single arbitrator who are residents of Connecticut and labor relations arbitrators approved by the American Arbitration Association and not members of the panel who issued the rejected award. Such arbitrators or single arbitrator shall review the decision on each such rejected issue. The review conducted pursuant to this subdivision shall be limited to the record and briefs of the hearing pursuant to subsection (c) of this section, the written explanation of the reasons for the vote and a written response by either party. In conducting such review, the arbitrators or single arbitrator shall be limited to consideration of the criteria set forth in subdivision (2) of this subsection. Such review shall be completed within twenty days of the appointment of the arbitrators or single arbitrator. The arbitrators or single arbitrator shall accept the last best offer of either of the parties. Within five days after the completion of such review the arbitrators or single arbitrator shall render a decision with respect to each rejected issue which shall be final and binding upon the municipal employer and the employee organization except that a motion to vacate or modify such award may be made in accordance with sections 52-418 and 52-419. The decision of the arbitrators or single arbitrator shall be in writing and shall include specific reasons and standards used by each arbitrator in making his decision on each issue. The decision shall be filed with the parties. . . .
      “(f) A municipal employer and a municipal employee organization may, at any time, file with the State Board of Mediation and Arbitration a joint stipulation modifying, deferring or waiving any or all of the provisions of this section, or modifying, deferring or waiving any or all of the provisions of a previously filed stipulation, and any such stipulation shall be controlling over the provisions of this section or of any previously filed stipulation.
      “(g) No party may submit for binding arbitration pursuant to this section any issue or proposal which was not presented during the negotiation process, unless the submittal of such additional issue or proposal is agreed to by the parties.”

       The award in the case involving the plaintiff International Brotherhood of Police Officers, Local 564, stated:
      “stipulated award
      “After several days of hearings before the below signed panel, the parties reachfed] agreement upon all unresolved issuejs] on May 11,1993 and submitted the following stipulation to the Panel:
      “The Borough of Jewett City Police Department and the IBPO Local 564 agree to waive the provisions of Conn. Gen. Stat. § 7-473c and stipulate to the attached collective bargaining agreement as the award of the panel of arbitrators in Case No. 9192-MBA-256.
      “Accordingly, the panel hereby issues the attached stipulated collective bargaining agreement as the award of the panel.”
      Except for the identification of the proper parties and case number, an identically worded award was issued in the companion case.

       General Statutes § 52-417 provides: “application for order confirming award. At any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, to any judge thereof, for an order confirming the award. The court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419.”

       In each case, the defendant filed an answer, admitting the factual allegations in the unions’ applications and deferring to the receiver for a response to the unions’ claims of law.

       We express no opinion about the timeliness of the motions filed by the receiver.

       General Statutes § 52-418 provides in relevant part: “vacating award. (a) Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made. . . .
      “(c) Any party filing an application pursuant to subsection (a) of this section concerning an arbitration award issued by the State Board of Mediation and Arbitration shall notify said board and the attorney general, in writing, of such filing within five days of the date of filing.”
      General Statutes § 52-419 provides in relevant part: “modification or correction of award, (a) Upon the application of any party to an arbitration, the superior court . . . shall make an order modifying or correcting the award if it finds any of the following defects: (1) If there has been an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the award; (2) if the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted; or (3) if the award is imperfect in matter of form not affecting the merits of the controversy.
      “(b) The order shall modify and correct the award, so as to effect the intent thereof and promote justice between the parties.”

       See In the Matter of City of Groton and Local 1964, IAFF, Connecticut State Board of Labor Relations Decision No. 3161, November 24, 1993, p. 9. In that ease, the board found as a fact that the parties had “technically moved into binding arbitration, although no proceedings were ever held.” Id., p. 4. When the parties thereafter reached an agreement, the board analyzed the rights of the parties under § 7-474 (b) without referring to § 7-473c.

       General Statutes § 50a-130 is part of the United Nations Commission on International Trade Law Model Law on International Commercial Arbitration. See General Statutes § 50a-100. Section 50a-130 provides: “settlement. (1) If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall terminate the proceeding and, if requested by the parties and not objected to by the arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms.
      “(2) An award on agreed terms shall be made in accordance with the provisions of section 50a-131 and shall state that it is an award. Such an award has the same status and effect as any other award on the merits of the case.”

       We express no opinion about the validity of the collective bargaining agreements as contracts. According to the briefs of the parties, that issue, with respect to the International Brotherhood of Police Officers, Local 564, is currently pending before the Connecticut state board of labor relations.


source: Caselaw Access Project

author: Katz, J. Callahan, J.,

license: Public Domain

text:
    David L. Copas v. Commissioner of Correction
    (15138)
    Peters, C. J., and Callahan, Berdon, Norcott and Katz, Js.

      Argued March 15
    decision released July 4, 1995

      James A. Kitten, assistant state’s attorney, with whom, on the brief, were Patricia A. Swords, state’s attorney, and Jacqueline J. Footman, assistant state’s attorney, for the appellant (respondent).

      Christopher C. Sheehan, deputy assistant public defender, for the appellee (petitioner).
   Katz, J.

This is an appeal from the decision of the habeas court granting the petitioner, David Leroy Copas, a new trial on the basis that he had received ineffective assistance of counsel at the time he pleaded guilty to murder and that, but for defense counsel’s deficient performance, the result of the proceeding would have been different. Because the habeas court denied the state certification to appeal, we must first decide whether the judgment of the habeas court is properly before us. If we conclude that the case is properly before this court, the dispositive issue becomes whether the deficient performance of the petitioner’s counsel prejudiced the outcome of the proceedings that led to the judgment of conviction. More specifically, we must determine whether his counsel prejudiced the proceedings by advising him to plead guilty without first: (1) investigating his mental health history; (2) engaging in any meaningful plea negotiations with the state’s attorney; and (3) advising him of potential defenses based on his mental defects or emotional disturbance. We affirm.

The habeas court reasonably could have found the following facts. On April 27,1986, the body of a sixteen year old girl was discovered in an isolated, wooded area of Coventry. The victim had been stabbed several times and her head had been crushed with a rock. During the subsequent investigation, authorities detained the petitioner on April 29,1986. While in police custody, the petitioner signed a detailed written statement. In his statement, the petitioner confessed to the following events. He and the victim had been together on the night of April 25,1986, and the early morning of April 26,1986. They had driven around aimlessly in the petitioner’s car, smoked marijuana and engaged in consensual sexual intercourse. They eventually drove to Coventry, where, according to the petitioner, they stopped and smoked more marijuana. The victim began screaming at him, calling him diseased and accusing him of having infected her. She then pulled out a small knife and started swinging it at him, cutting his hand. He struck the victim and she fell down. She then kicked him in the groin. He grabbed the knife and stabbed the victim repeatedly. He then hit her head with a large rock.

On May 1, 1986, the petitioner was arrested and charged with murder in violation of General Statutes (Rev. to 1985) § 53a-54a. The petitioner pleaded not guilty and elected a jury trial.

On May 5, 1986, attorney Jerry Gruenbaum, a self-described tax and corporate law specialist, filed an appearance on behalf of the petitioner. Both the petitioner and his mother alerted Gruenbaum to the petitioner’s long history of mental, emotional and substance abuse problems. Gruenbaum subsequently examined the petitioner’s school records and spoke by telephone to a psychiatrist with whom the petitioner had previously met. Although on June 11,1986, Gruenbaum filed a notice of intent to introduce expert testimony relating to the existence of a mental disease or defect pursuant to Practice Book § 759, he never consulted such an expert. Gruenbaum had decided that, because the petitioner’s mental disabilities did not rise to the level of insanity, no defense based on the petitioner’s mental condition applied. Gruenbaum made no further attempt to investigate the petitioner’s mental health and did not request an independent psychiatric evaluation. Furthermore, he did not mention any potential defense to the state’s attorney.

On August 27, 1986, the state notified Gruenbaum in writing that “the only way that this case can be disposed of short of trial is that Mr. Copas plead guilty to the charge of murder with a recommendation of the maximum sentence.” On October 7,1986, the petitioner withdrew his prior plea and election and pleaded guilty to murder. During the plea canvass, the court emphasized that there was no plea agreement, that the state was free to recommend the maximum penalty of life imprisonment and that “the [c]ourt would be free to impose whatever sentence the [c]ourt feels was fair under the circumstances.” Therefore, the court gave the petitioner no assurance or indication of what it would do at sentencing. The court accepted the petitioner’s guilty plea and continued the case for sentencing.

Thereafter, on November 4,1986, at the petitioner’s request, Gruenbaum submitted and argued a motion to withdraw as counsel. The court denied the motion. Before sentencing on November 19, 1986, the petitioner moved for permission to withdraw his guilty plea, which the court also denied.

As part of the presentence investigation conducted pursuant to General Statutes § 54-91a and Practice Book § 909, the court ordered the courts diagnostic clinic to evaluate the petitioner. In response, Donald Rilla, a psychiatric social work supervisor acting on behalf of the clinic, submitted a clinical evaluation of the petitioner. This report, which was largely derived from a previous report that Rilla had submitted in 1982 in connection with a previous charge of first degree larceny, described the petitioner as a troubled individual. According to Rilla, the petitioner had an unsettled and discordant childhood that had resulted in socialization and behavioral problems. The report further stated that the petitioner had begun meeting with psychologists and social workers at the age of eight and that he had a long history of substance abuse.

At the sentencing hearing on November 19, 1986, the state emphasized the heinous nature of the crime and asked the court to impose the maximum sentence of sixty years incarceration. In addition, two members of the victim’s family spoke to the court. Gruenbaum argued that the petitioner should be sentenced to forty years. He did not, however, remark on the petitioner’s troubled history, mention Rilla’s report or provide the court with any reason to be lenient. None of the petitioner’s family was present at the sentencing hearing and, therefore, no one spoke on his behalf. The trial court imposed a sentence of fifty years incarceration.

One year later, on November 2,1987, the petitioner filed a pro se petition for a writ of habeas corpus. On February 1,1991, he filed an amended petition, through counsel, alleging that ineffective assistance of counsel had made his conviction illegal. Specifically, the petitioner alleged that Gruenbaum had been unqualified to represent him in a murder case, and that Gruenbaum had: (1) failed adequately to consult with the petitioner and advise him of relevant evidence and potential defenses; (2) misled and misinformed the petitioner as to the consequences of his guilty plea; (3) failed adequately to inquire into and develop evidence of the petitioner’s mental state at the time of the offense; (4) failed to obtain a qualified expert’s independent evaluation of the petitioner’s mental state; and (5) failed vigorously and effectively to present evidence concerning the petitioner’s mental state to the prosecuting attorney or the trial court during the appropriate pretrial proceedings and sentencing. The petitioner claimed that, but for Gruenbaum’s inadequate representation, “there is a reasonable probability that the proceeding would have had a different outcome in that the petitioner would not have entered his guilty plea, a more favorable plea agreement could have been obtained, and/or the trial court would have imposed a lesser sentence.” Accordingly, the petitioner asked for a new trial.

At the habeas corpus hearing beginning on January 21,1992, the testimony included the results of an independent psychiatric evaluation of the petitioner and expert legal opinions regarding the constitutional right to effective assistance of counsel. Although the habeas court determined that Gruenbaum had never requested an independent psychiatric evaluation because he did not feel that any psychiatrically oriented defenses applied, the court also determined that Gruenbaum did not have sufficient knowledge of criminal law to make such an assessment. The habeas court noted that during his testimony at the habeas hearing, “[attorney Gruenbaum was unable to define ‘extreme emotional disturbance.’ He was unable to set forth the elements of the crime of murder. It became apparent that trial counsel, at best, was confused about presenting an affirmative defense based upon mental disease or defect. . . . Mr. Gruenbaum’s testimony at the habeas corpus trial indicated that he did not know or appreciate the differences between ‘insanity,’ ‘extreme emotional disturbance’ and ‘diminished capacity.’ He was unable to distinguish between the clinical evaluation and the presentence report.”

The habeas court then focused on Gruenbaum’s performance pertaining to the petitioner’s sentencing and concluded that “[tjrial counsel’s conduct in preparing for and in his presentation of the sentencing hearing was not reasonably competent nor was it within the range of competence of Connecticut attorneys practicing criminal law in 1986.” Citing Strickland v. Washington, 466 U.S. 668, 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), the habeas court articulated the standard for determining whether a petitioner has been deprived of his constitutional right to effective assistance of counsel. Under Strickland, the petitioner must show that: (1) defense counsel’s performance was not reasonably competent or within the range of competence expected of attorneys with ordinary training and skill in criminal law; id., 687-88; and (2) but for counsel’s substandard performance, there is a reasonable probability that the result of the proceeding would have been different. Id., 694. Applying this standard, the habeas court determined that “[bjased upon all of the evidence presented at the habeas corpus trial, it is the conclusion of the court that there is a reasonable probability that, but for Gruenbaum’s incompetent representation of the petitioner the result of the proceeding would have been different.” After reaching this determination the court did not consider any of the petitioner’s other claims. Judgment was rendered in favor of the petitioner and his conviction of murder was vacated.

The respondent petitioned the habeas court for certification to appeal, and the habeas court granted certification. Thereafter, the respondent appealed from the judgment of the habeas court to the Appellate Court. The respondent first challenged the habeas court’s conclusion that the petitioner’s trial counsel had been ineffective. Second, the respondent claimed that, even if the habeas court properly had determined that the petitioner had received ineffective assistance of counsel at sentencing, the proper remedy was to order a new sentencing hearing rather than to vacate the conviction.

The Appellate Court affirmed the habeas court’s finding that Gruenbaum had provided inadequate representation at sentencing and that, had the petitioner’s counsel been effective, the outcome of the sentencing hearing “might have been different.” Copas v. Warden, 30 Conn. App. 677, 685-86, 621 A.2d 1378, cert. denied, 226 Conn. 901, 625 A.2d 1374 (1993). The court determined, however, that the habeas court’s finding that counsel was ineffective at sentencing constituted an insufficient basis for overturning the conviction. The Appellate Court noted that the habeas court’s decision was based on Gruenbaum’s performance during the penalty phase of the proceedings and did not address any of the petitioner’s other claims, which included the allegation that ineffective assistance of counsel during the plea process had precipitated the petitioner’s decision to plead guilty. Id., 687. Therefore, the Appellate Court remanded the case to the habeas court for consideration of these claims, concluding that “[i]f the habeas court determines that there was ineffective assistance of counsel at the time of the petitioner’s conviction, then the habeas court may properly vacate the judgment of conviction.” Id., 688.

Following the remand, in a supplemental memorandum of decision dated May 16,1994, the habeas court concluded that the petitioner had received ineffective assistance of counsel at the time of his guilty plea. The court noted that Gruenbaum had been alerted to the petitioner’s troubled history by the petitioner himself and by his mother, but Gruenbaum nevertheless had failed to conduct any meaningful investigation into the petitioner’s mental state. The habeas court determined that Gruenbaum had not understood or identified the petitioner’s potential defenses and found that the only substantive insight into the petitioner’s mental health had been in the courts diagnostic clinic report, which had been ordered by the trial court. Consequently, the habeas court concluded that the failure by the petitioner’s counsel to request a state funded expert mental health evaluation, in addition to his failure to identify and understand the petitioner’s potential defenses, constituted substandard professional conduct. The habeas court ruled that Gruenbaum’s failure to understand and investigate the petitioner’s potential defenses had precluded any meaningful pretrial discussions with the state’s attorney and that “[tjhere is a reasonable probability that, but for Gruenbaum’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, [supra, 466 U.S. 694]. Certainly [the] petitioner’s decision to plead guilty to murder was not an informed decision.” Accordingly, the habeas court vacated the conviction and ordered a new trial.

The respondent petitioned the habeas court for certification for appellate review pursuant to General Statutes § 52-470 (b). See footnote 8. The habeas court denied certification and the respondent appealed to the Appellate Court, claiming that it was improper for the habeas court to deny certification and to grant the habeas corpus petition. The appeal was transferred to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

We must decide the following two issues: (1) whether this court has jurisdiction to review the judgment despite the habeas court’s denial of the respondent’s petition for certification; and (2) whether the habeas eourt properly concluded that the petitioner had demonstrated that he had been prejudiced by his counsel’s ineffective assistance at the time of his conviction.

I

We must first decide whether this court should review the decision of the habeas court. We have previously determined that if either the petitioner or the respondent is denied a timely request for certification to appeal from a habeas court’s judgment, such review may subsequently be obtained only if the appellant can demonstrate that the denial constituted an abuse of discretion. Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994). We recognize that “[i]n enacting § 52-470 (b), the legislature intended to discourage frivolous habeas appeals.” Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994). A habeas appeal that satisfies one of the criteria set forth in Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), is not, however, frivolous and warrants appellate review if the appellant can show: “ ‘that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.’ (Emphasis in original; internal quotation marks omitted.)” Simms v. Warden, supra, 616, quoting Lozada v. Deeds, supra, 432. Thus, if an appeal is not frivolous, the habeas court’s failure to grant certification to appeal is an abuse of discretion. Simms v. Warden, supra, 616.

In this case, the habeas court expressly determined that Gruenbaum had not provided adequate legal representation to the petitioner during the plea process and that the petitioner’s plea had not been an informed decision. The court cited summarily, however, to the prejudice prong of Strickland v. Washington, supra, 466 U.S. 694, stating that “[t]here is a reasonable probability that, but for Gruenbaum’s unprofessional errors, the result of the proceeding would have been different.” The habeas court provided no further analysis. Although Strickland applies generally to the evaluation of whether ineffective assistance of counsel during criminal proceedings has infringed on a petitioner’s constitutional rights, the United States Supreme Court has articulated a modified prejudice standard for cases in which the conviction has resulted from a guilty plea. See Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). Hill requires the petitioner to demonstrate that he would not have pleaded guilty, that he would have insisted on going to trial, and that the evidence that had been undiscovered or the defenses he claims should have been introduced were likely to have been successful at trial. Id., 59. The habeas court did not explain how the petitioner had met this burden of demonstrating prejudice. Indeed, the court did not refer to Hill in its supplemental memorandum of decision or otherwise discuss these factors set forth in Hill. Thus, it is not clear whether the petitioner satisfied the proper prejudice standard and we conclude, therefore, that the issue of whether the habeas court applied the proper standard is debatable among jurists of reason. Accordingly, we conclude that this appeal is not frivolous, that the habeas court’s denial of the respondent’s petition for certification constituted an abuse of discretion and, therefore, that this appeal is properly before us.

II

We next consider the respondent’s claim that the petitioner has not shown, as required by the Hill-Strickland standard, that, but for defense counsel’s failure to investigate potential defenses of mental incapacity and extreme emotional disturbance, he would have proceeded to trial rather than pleaded guilty. The respondent also contends that the petitioner has failed to demonstrate that any such defense would have been likely to succeed at trial and asserts that the outcome of this case would have been the same regardless of the competence of the petitioner’s counsel. We disagree.

We begin our analysis with the standard of appellate review of habeas corpus proceedings. The underlying historical facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. Phillips v. Warden, 220 Conn. 112, 131, 595 A.2d 1356 (1991). Historical facts constitute a recital of external events and the credibility of their narrators. “So-called mixed questions of fact and law, which require the application of a legal standard to the historical-fact determinations, are not facts in this sense.” Townsend v. Sain, 372 U.S. 293, 309 n.6, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963). Whether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. Strickland v. Washington, supra, 466 U.S. 698. As such, that question requires plenary review by this court unfettered by the clearly erroneous standard. Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980); Phillips v. Warden, supra, 131; see Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir.), cert. denied, 488 U.S. 908, 109 S. Ct. 260, 102 L. Ed. 2d 249 (1988) (appellate court reviews de novo habeas court’s decision to grant or deny petition); Virgin Islands v. Zepp, 748 F.2d 125, 134 (3d Cir. 1984) (whether defendant received constitutionally inadequate assistance of counsel is mixed question of law and fact to which clearly erroneous standard does not apply).

A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, supra, 466 U.S. 686. This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. Baez v. Commissioner of Correction, 34 Conn. App. 236, 242-43, 641 A.2d 147, cert. denied, 231 Conn. 905, 648 A.2d 148 (1994). Pretrial negotiations implicating the decision of whether to plead guilty is a critical stage in criminal proceedings; Colson v. Smith, 438 F.2d 1075, 1078 (5th Cir. 1971); and plea bargaining is an integral component of the criminal justice system and essential to the expeditious and fair administration of our courts. Blackledge v. Allison, 431 U.S. 63, 71, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977); see Statewide Grievance Committee v. Whitney, 227 Conn. 829, 842, 633 A.2d 296 (1993). “[Plea bargaining] leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned.” (Internal quotation marks omitted.) Statewide Grievance Committee v. Whitney, supra, 842.

Commentators have estimated that between 80 and 90 percent of criminal cases in Connecticut result in guilty pleas, the majority of which are the product of plea bargains. M. Heumann, Plea Bargaining: The Experiences of Prosecutors, Judges and Defense Attorneys (1978) pp. 27-28. Thus, almost every criminal defendant is faced with the crucial decision of whether to plead guilty or proceed to trial. Although this decision is ultimately made by the defendant, the defendant’s attorney must make an informed evaluation of the options and determine which alternative will offer the defendant the most favorable outcome. A defendant relies heavily upon counsel’s independent evaluation of the charges and defenses, applicable law, the evidence and the risks and probable outcome of a trial. The right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction. Siemon v. Stoughton, 184 Conn. 547, 556 n.3, 440 A.2d 210 (1981).

In Strickland v. Washington, supra, 466 U.S. 668, the United States Supreme Court adopted a two-part standard for evaluating claims of ineffective assistance of counsel during criminal proceedings: the defendant must show: (1) that counsel’s representation fell below an objective standard of reasonableness; id., 687-88; and (2) that defense counsel’s deficient performance prejudiced the defense. Id., 694. The petitioner in Strickland had argued that the applicable standard for showing prejudice should be that the error impaired the presentation of the defense. The court expressly rejected that standard, concluding that it provided no workable principle. Id., 693. The court also expressly rejected the outcome-determinative standard: that counsel’s conduct more likely than not altered the outcome in the case. Id., 693-94. “An ineffective assistance claim asserts the absence of one of the crucial assurances that the result of the proceeding is reliable, so finality concerns are somewhat weaker and the appropriate standard of prejudice should be somewhat lower. The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.” Id., 694. Accordingly, relying on the test for materiality of exculpatory information not disclosed to the defense, the court reached a compromise that requires a petitioner to demonstrate that there is a reasonable probability that the result of the proceedings would have been different had it not been for counsel’s deficient performance. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

The court imposed this prejudice requirement because “[t]he government is not responsible for, and hence not able to prevent, attorney errors that will result in reversal of a conviction or sentence. Attorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial. They cannot be classified according to likelihood of causing prejudice. Nor can they be defined with sufficient precision to inform defense attorneys correctly just what conduct to avoid. Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another. Even if a defendant shows that particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an adverse effect on the defense.” Id., 693.

In Hill v. Lockhart, supra, 474 U.S. 57-58, the court determined that the same two-part standard applies to claims arising from the plea negotiation process and that the same justifications for imposing the prejudice requirement in Strickland were relevant in the context of guilty pleas. Although the first half of the Strickland test remains the same for determining ineffective assistance of counsel at the plea negotiation stage, the court modified the prejudice standard. As in Strickland, the prejudice standard for plea negotiations is intended to determine whether, but for counsel’s constitutionally deficient performance, the outcome of the plea process would have been different. The court went on to require that “in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Id., 59.

The Hill court also stated that the petitioner must show that such a decision to plead not guilty would have been based on the likelihood that the introduction of the evidence or the defense that was not identified because of ineffective assistance of counsel would have been successful at trial. Id. The court stated that “[i]n many guilty plea cases, the ‘prejudice’ inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate . . . the determination whether the error ‘prejudiced’ the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the ‘prejudice’ inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.” Id.

We, therefore, examine whether the petitioner has shown that, but for the ineffective assistance of counsel, he would not have pleaded guilty to murder and would have gone to trial. In this case, the ineffective assistance of counsel involved both the failure to investigate and the failure to advise the petitioner of potential defenses. We conclude that the petitioner has shown that had his counsel adequately investigated and advised him of his potential defenses to murder, he would not have pleaded guilty to murder and would have gone to trial.

First, as the habeas court pointed out, Gruenbaum failed to conduct any meaningful investigation of the petitioner’s mental health history, although he had been informed by the petitioner and the petitioner’s mother that the petitioner had a troubled past that included mental and emotional problems and extensive and prolonged substance abuse. The only such evaluation provided to the trial court, prepared by a social worker, had been requested by the court itself after the petitioner already had pleaded guilty. The state’s attorney, Donald Caldwell, testified that Gruenbaum had never raised any potential defense during plea negotiations.

Had Gruenbaum investigated the petitioner’s history of mental illness, he would have gathered significant information pertaining to a mental defect defense. In preparation for the habeas hearing, the petitioner was evaluated by Kenneth Selig, an adult clinical and forensic psychiatrist. Selig testified that the courts diagnostic clinic report was deficient because it included no psychological testing and did not provide any evaluation of possible organic brain damage. In addition, Selig’s testimony at the habeas hearing revealed substantial information regarding the petitioner’s mental health that had not been included in the diagnostic clinic report.

In Selig’s opinion, the petitioner was mentally ill. Selig characterized the petitioner as having significant psychiatric problems that have persisted during his adult life, and diagnosed the petitioner as suffering from alcohol abuse, cannabis abuse, atypical impulse control and a mixed personality disorder with paranoid, narcissistic and antisocial features. He stated with reasonable medical certainty that the petitioner was suffering from the same psychological problems in April, 1986.

Selig also testified that the petitioner’s afflictions become substantially worse when he is under stress and that in April, 1986, “in general his life was chaotic.” The petitioner had been experiencing marital problems, substance abuse, unemployment and increasing financial instability. Selig testified that, as a consequence of the petitioner’s mental illness and the stressors he was experiencing in April, 1986, the petitioner would likely have misinterpreted the intentions of others and would have become provoked in situations in which a healthy person would perceive no reason for provocation. Because of his atypical impulse disorder, the petitioner had a diminished capacity to control his behavior after provocation. Selig concluded, with a reasonable degree of medical certainty, that the petitioner was mentally ill and had suffered from a severely diminished capacity to control his behavior in April, 1986. Gruenbaum’s failure to investigate caused this mental illness to remain undetected.

Gruenbaum also failed to inform the petitioner of any potential mental defect defenses, in part because of his own failure to conduct an adequate investigation, and in part because of his own misunderstanding of such defenses. Gruenbaum advised the petitioner to plead guilty under the mistaken assumption that the only mental defense available to him was insanity. He had never considered or explained to the petitioner the defenses of extreme emotional disturbance or intoxication. The habeas court determined that the petitioner’s decision to plead guilty was not an informed decision, and the respondent does not challenge this conclusion.

It is reasonable to assume that, had the information regarding the petitioner’s mental illness been revealed through a proper investigation, it would have been presented to the state’s attorney during plea negotiations and would have weighed in defense counsel’s recommendation regarding how the petitioner should plead. At the habeas hearing, the respondent asked Caldwell a hypothetical question that involved a defendant charged with murder who had presented evidence of the same psychological problems that Selig had attributed to the petitioner. The respondent asked Caldwell whether he would have offered to such a defendant a more lenient sentence or offered to charge a lesser offense in exchange for a guilty plea. Caldwell stated unequivocally that he would have handled the case exactly the same way and would not have considered offering a charge of manslaughter or any lesser offense in exchange for a guilty plea. We assume that the habeas court credited this testimony. Therefore, the petitioner would have had the choice of pleading guilty to murder, knowing that the state would argue for the maximum sentence, or, in the hope of securing a more favorable outcome, pleading not guilty, proceeding to trial and relying on defenses related to his mental illness and emotional vulnerability.

There were several defenses that the petitioner could have raised. Extreme emotional disturbance is an element of first degree manslaughter; General Statutes § 53a-55; and is an affirmative defense to murder. See footnote 2. In addition, a defendant who has committed murder while in a state of self-induced intoxication may offer evidence of such intoxication to negate the element of intent. General Statutes § 53a-7. Furthermore, the inability to control one’s conduct within the requirements of the law that is not induced by voluntary intoxication is an affirmative defense. General Statutes § 53a-13; see State v. Joyner, 225 Conn. 450, 460-65, 625 A.2d 791 (1993). Accordingly, it is clear that pleading guilty to murder was not the petitioner’s only viable option.

We must next decide whether the aforementioned defenses would likely have succeeded at trial. Hill v. Lockhart, supra, 474 U.S. 59. The petitioner argues that, on the basis of the evidence of his mental illness adduced at the habeas hearing, he could have established that he was guilty of the crime of manslaughter in the first degree on the basis of extreme emotional disturbance rather than murder. We agree.

In order to prevail on that defense, the petitioner must prove, “by a preponderance of the evidence, that he had committed the offense under the influence of an extreme emotional disturbance, and, that there was a reasonable explanation or excuse for his extreme emotional disturbance. In interpreting the meaning of the phrase extreme emotional disturbance, we have stated that the trier of fact must be persuaded that: (1) the emotional disturbance is not a mental disease or defect that rises to the level of insanity as defined by the penal code; (2) the defendant was exposed to an extremely unusual and overwhelming state, that is, not mere annoyance or unhappiness; and (3) the defendant had an extreme emotional reaction to it, as a result of which there was a loss of self-control, and reason was overborne by extreme intense feeling, such as passion, anger, distress, grief, excessive agitation or other similar emotions.” (Internal quotation marks omitted.) State v. Patterson, 229 Conn. 328, 340-41, 641 A.2d 123 (1994).

The determination of the reasonableness of a defendant’s actions to support his affirmative defense of extreme emotional disturbance in a murder prosecution requires that circumstances be viewed from the viewpoint of a reasonable person in the defendant’s situation and under the circumstances as the defendant believed them to be, rather than subjectively from the defendant’s viewpoint. State v. Ortiz, 217 Conn. 648, 653, 588 A.2d 127 (1991). However, “the reasonable man yardstick is only used to determine the reasonableness of the explanation or excuse of the action of the defendant from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be.” (Internal quotation marks omitted.) Id. Thus, the statute “ ‘sets forth a standard that is objective in its overview, but subjective as to the defendant’s belief . . . .’ ” Id. The extreme emotional disturbance defense is a considerably broader version of the common law defense of heat of passion or sudden provocation. Patterson v. New York, 432 U.S. 197, 202, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977). “[T]he defense does not require a provoking or triggering event; or that the homicidal act occur immediately after the cause or causes of the defendant’s extreme emotional disturbance; or that the defendant have lost all ability to reason.” State v. Elliott, 177 Conn. 1, 7, 411 A.2d 3 (1979).

The habeas court could reasonably have found credible the evidence presented by the petitioner that showed him as having persistently suffered from a wide range of psychological and emotional problems throughout his life. Selig testified that the petitioner suffers from a particular mental disorder that causes him to become easily provoked and unable to control himself once he becomes provoked. He was experiencing a series of additional stressors at the time of the crime, including marital problems, daily substance abuse and an inability to remain employed that exacerbated his mental instability. Although the totality of this evidence may not amount to a compelling extreme emotional disturbance defense, it need not approach that level of certitude because the petitioner must show only that a more favorable outcome was likely. We conclude the habeas court reasonably could have found that, had the petitioner gone to trial instead of pleading guilty, it is reasonably likely that the jury would have found him guilty of the lesser offense of manslaughter, or that, had he nevertheless been convicted of murder, the court would have imposed a lesser sentence in consideration of his mental afflictions.

Finally, in the absence of any assurance or indication by the trial court of what sentence it considered appropriate, in light of the state’s expressed decision to recommend the maximum sentence even were the petitioner to plead guilty, and in light of the substantially different penalties involved, it is clear that the petitioner had little incentive to plead guilty to murder. Furthermore, assuming the habeas court credited Caldwell’s testimony that, despite the psychiatric and psychological evidence, the state nevertheless would have persisted in charging the petitioner with murder and would have argued for the maximum sentence, it is equally clear that the petitioner would have had no incentive to plead guilty.

In sum, the habeas court reasonably could have found that, because of this reasonable likelihood of a different outcome at trial and because of the fact that the petitioner had nothing to lose by proceeding to trial, it is reasonably probable that, but for the ineffective assistance of counsel, the petitioner would have elected not to plead guilty and instead to go to trial. We, therefore, conclude that the habeas court correctly determined that the petitioner was prejudiced by ineffective assistance of counsel at the time of his conviction. The petitioner has satisfied the prejudice requirement of the Hill-Strickland standard, and the habeas court, therefore, properly vacated the petitioner’s conviction.

The judgment of the habeas court is affirmed.

In this opinion Peters, C. J., and Berdon and Norcott, Js., concurred.

Callahan, J.,

dissenting. I dissent in part II of the majority opinion. I agree with the majority that attorney Jerry Gruenbaum’s representation of the petitioner, David Copas, fell below the standard of Strickland v. Washington, 466 U.S. 668, 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). I disagree, however, with the conclusion of the majority that an affirmative defense posited by the petitioner likely would have been successful at trial.

In order for the petitioner to prevail on his claim of ineffective assistance of counsel, he must satisfy the “prejudice requirement” as set forth in Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). “[I]n order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. . . . [Wjhere the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the ‘prejudice’ inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial. See, e.g., Evans v. Meyer, 742 F.2d 371, 375 ([7th Cir.] 1984) (‘It is inconceivable to us ... that [the defendant] would have gone to trial on a defense of [extreme emotional disturbance], or that if he had done so he either would have been acquitted or, if convicted, would nevertheless have been given a shorter sentence than he actually received.’).” Id., 59.

The petitioner argues that had his attorney identified extreme emotional disturbance as a viable affirmative defense to murder, he would not have pleaded guilty to murder, and the defense likely would have succeeded. The majority agrees. It appears to me, however, that it is not likely that an extreme emotional disturbance defense would have been successful at trial and, consequently, the petitioner was not prejudiced by his counsel’s shortcomings.

In order to prove a defense of extreme emotional disturbance, the petitioner would have had to demonstrate that any emotional disturbance he suffered had to be excessive and violent and rise to the greatest degree of intensity away from the norm. State v. Elliott, 177 Conn. 1, 9-10, 411 A.2d 3 (1979). That the petitioner’s mental state rose to that level is belied by the evidence that immediately after killing the victim, he hid her body and rifled through her pocketbook, stealing her money and her jewelry. Moreover, the petitioner’s friends who saw him shortly after the incident gave no indication that the petitioner was fleeing in horror upon the realization of what he had done while he was in an extremely emotionally disturbed state; rather, the petitioner was calmly going about the business of obtaining assistance to get his car started. These are hardly the actions of one who has just killed a fellow human being in the throes of extreme emotional disturbance.

Further, there is a question of credibility to be considered. The petitioner’s confession claims that the victim “got [a knife] from somewhere” and attacked and cut him. There is a statement in the petitioner’s presentence investigation report, however, that any cuts the petitioner suffered were from his own knife. Additionally, that same confession alleges that the petitioner and the victim drank alcohol and smoked marijuana together several times on the night of the murder. The autopsy report on the victim, however, indicated that she had not ingested any drugs or alcohol.

In short, the jury would have to close its eyes to the petitioner’s actions and credit the petitioner’s testimony regarding the victim’s behavior on the night of the murder in order for the defense of extreme emotional disturbance to succeed. I do not believe that a reasonable jury would do so. I respectfully dissent.

       The autopsy report indicated that the victim had not ingested any drugs or alcohol.

       General Statutes (Rev. to 1985) § 53a-54a provides: “murder defined. AFFIRMATIVE DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION. (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person.
      “(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony.”

       Practice Book § 759 provides: “--mental disease or defect INCONSISTENT WITH THE MENTAL ELEMENT REQUIRED FOR THE OFFENSE CHARGED
      “If a defendant intends to introduce expert testimony relating to a mental disease or defect, or another condition bearing upon the issue of whether he had the mental state required for the offense charged, he shall, within the time provided for the filing of pretrial motions or at such later time as the judicial authority may direct, notify the prosecuting authority in writing of such intention and file a copy of such notice with the clerk. He shall also furnish the prosecuting authority with copies of reports of physical or mental examinations of the defendant made in connection with the offense charged, within five days after receipt thereof. The judicial authority may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate.”

       General Statutes (Rev. to 1985) § 53a-35a provides in pertinent part: “IMPRISONMENT FOR ANY FELONY COMMITTED ON OR AFTER JULY 1, 1981: DEFINITE sentences; terms authorized. For any felony committed on or after July 1,1981, the sentence of imprisonment shall be a definite sentence and the term shall be fixed by the court as follows ... (2) for the class A felony of murder, a term not less than twenty-five years nor more than life; (3) for a class A felony other than murder, a term not less than ten years nor more than twenty-five years; (4) for a class B felony, a term not less than one year nor more than twenty years, except that for a conviction under section 53a-55a, 53a-59 (a) (1), 53a-59a, 53a-70a, 53a-94a, 53a-101 (a) (1) or 53a-134 (a) (2), the term shall be not less than five years nor more than twenty years . . . .”
      General Statutes § 53a-35b provides: “ ‘life imprisonment’ defined. A sentence of imprisonment for life shall mean a definite sentence of sixty years, unless the sentence is life imprisonment without the possibility of release, imposed pursuant to subsection (f) of section 53a-46a, in which case the sentence shall be imprisonment for the remainder of the defendant’s natural life.”

       The reasons that the petitioner decided to change his plea and dismiss his defense counsel are in dispute. Gruenbaum told the court that the petitioner had found a new attorney, whose identity was not known, and had discovered new evidence that would show that he had not committed the murder. The petitioner claims that, because he became concerned about the quality of legal representation he was receiving from Gruenbaum, he decided to have Gruenbaum withdraw from the case and to withdraw his guilty plea. The petitioner’s version is buttressed by the testimony of his mother, who also believed at that time that Gruenbaum’s performance was deficient. In addition, the clinical evaluation report dated October 31,1986, that was completed by the courts diagnostic clinic, states: “There also appears to be a conflict that the [petitioner] currently has between [himself] and [his] counsel. He has indicated serious concern that he would be obtaining a new attorney and has made allegations against [his] counsel before the Bar Association. Because of these allegations, the [petitioner] may in fact ask for a withdrawal of the plea resulting in possibly his guilty plea being withdrawn and going to trial. . . .”

       In contrast, the presentence investigation report stated: “He is the product of a hard working and well meaning family, certainly not a victim of a hopeless upbringing.” Although both reports were submitted to the court, the apparent discrepancy between them was not brought to the attention of the court, and the court mentioned only the presentence investigation report as a basis for sentencing.

       At the habeas corpus hearing, the petitioner’s wife and mother testified that they had not been advised of the date at which the sentencing hearing was to take place.

       General Statutes § 52-470 provides in pertinent part: “(b) No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the supreme court or appellate court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”

       The respondent has not challenged the habeas court’s finding that Gruenbaum’s failure to obtain an independent psychiatric evaluation of the petitioner and his lack of understanding of the potential defenses to murder constituted ineffective assistance of counsel, that the ineffective assistance of counsel precluded any meaningful plea negotiations and that the petitioner’s decision to plead guilty was not an informed one. Therefore, only the second prong of the Hill-Strickland standard, regarding the prejudicial effect of the ineffective assistance of counsel, is at issue in this case.

       We note that the prejudice standard set forth in Strickland was revisited by the United States Supreme Court in Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993). The court summarized Strickland as requiring “ ‘that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’ ” Id., 369, quoting Strickland v. Washington, supra, 466 U.S. 687. “Thus, an analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective.” Lockhart v. Fretwell, supra, 369. Fretwell has been interpreted as narrowing the scope of the ineffective assistance of counsel doctrine and thereby limiting the availability of habeas relief. See, e.g., Armstead v. Scott, 37 F.3d 202, 207 (5thCir. 1994), cert. denied, U.S. , 115 S. Ct. 1709, 131 L. Ed. 2d 570 (1995). We interpret Lockhart, however, as a clarification of Strickland and conclude that it has no impact on the modified prejudice standard articulated in Hill. To satisfy the Hill standard, a defendant must prove that, but for defense counsel’s deficient performance, there is a reasonable probability that he would have pleaded not guilty and proceeded to trial on the basis of the likelihood that his defenses would succeed in providing a more favorable outcome. We believe that if a defendant can satisfy the modified prejudice standard in Hill, he has implicitly proven that the results of the plea proceeding were fundamentally unfair.

       At the habeas hearing, in response to a question from the court regarding whether she had ever indicated to Gruenbaum that the petitioner had mental problems, the petitioner’s wife also testified that she had told Gruenbaum several times that something was wrong with her husband.

       The petitioner suffered a number of head injuries during his childhood. When the petitioner was in the sixth grade, he was knocked unconscious in a sledding accident. Afterwards, he began to speak oddly in class and was taken to the hospital. When he was in the ninth grade, he fell from a ceiling, landed on his head and remained unconscious for one and one-half days. He later received another head injury that had required stitches over his right eye. Although Rilla’s diagnostic clinic report refers to these incidents, it concludes, without an articulated reason, that the petitioner suffered from no organic brain damage. This statement was qualified, however, with a parenthetical clarification that it was “a non-medical opinion.”

       There was contradictory testimony at the habeas hearing regarding why the petitioner had pleaded guilty. Gruenbaum testified at the hearing that the petitioner had pleaded guilty because he feared that details of his sexual conduct with the victim would be publicized during a trial, and that prison inmates would learn of it and seek retribution against him. In contrast, the petitioner testified that he pleaded guilty because Gruenbaum had told him repeatedly that it was the only way the petitioner could obtain a sentence of less than sixty years imprisonment. The petitioner’s mother also testified that Gruenbaum had informed her that the petitioner had no defense and that his only option had been to plead guilty. The habeas court determined in the context of the plea process that, but for Gruenbaum’s ineffective assistance of counsel, there was a reasonable probability that “the result of the proceeding would have been different.” If the habeas court had believed that the petitioner had pleaded guilty to avoid publicity, it would have had to conclude that the outcome of the plea process would have been the same had counsel been effective. Therefore, the habeas court implicitly credited the petitioner’s testimony regarding why he had pleaded guilty.

       General Statutes § 53a-55 provides: “manslaughter in the first degree: class b felony, (a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or (2) with intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he committed the proscribed act or acts under the influence of extreme emotional disturbance, as provided in subsection (a) of section 53a-54a, except that the fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subsection; or (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.
      “(b) Manslaughter in the first degree is a class B felony.”

       The petitioner testified that he had consumed an indeterminate amount of whiskey and smoked approximately thirteen marijuana cigarettes during the period of time in question.

       General Statutes § 53a-7 provides: “effect of intoxication. Intoxication shall not be a defense to a criminal charge, but in any prosecution for an offense evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negate an element of the crime charged, provided when recklessness or criminal negligence is an element of the crime charged, if the actor, due to self-induced intoxication, is unaware of or disregards or fails to perceive a risk which he would have been aware of had he not been intoxicated, such unawareness, disregard or failure to perceive shall be immaterial. As used in this section, ‘intoxication’ means a substantial disturbance of mental or physical capacities resulting from the introduction of substances into the body.”

       General Statutes § 53a-13 provides: “lack of capacity due to mental DISEASE OR DEFECT AS AFFIRMATIVE DEFENSE, (a) In any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law.
      “(b) It shall not be a defense under this section if such mental disease or defect was proximately caused by the voluntary ingestion, inhalation or injection of intoxicating liquor or any drug or substance, or any combination thereof, unless such drug was prescribed for the defendant by a licensed practitioner, as defined in section 20-184a, and was used in accordance with the directions of such prescription.
      “(c) As used in this section, the terms mental disease or defect do not include (1) an abnormality manifested only by repeated criminal or otherwise antisocial conduct or (2) pathological or compulsive gambling.”

       The likelihood of a successful outcome at trial has been interpreted to include either the likelihood of acquittal or the likelihood of a more favorable sentence. In Hill v. Lockhart, supra, 474 U.S. 59, after the court explained that “the resolution of the ‘prejudice’ inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial,” the court cited to Evans v. Meyer, 742 F.2d 371, 375 (7th Cir. 1984), as an example. In Evans v. Meyer, supra, 375, a case involving an allegation of ineffective assistance of counsel during the plea process, the court found it inconceivable that the defendant’s potential defense of intoxication would have resulted in an acquittal or, if the defendant had been convicted as charged, that he would have been given a shorter sentence than he actually received. This implies that, under the Hill prejudice requirement, the petitioner must show that the decision to plead not guilty would have been based on the likelihood that either: (1) the defense would result in an acquittal of the charged offense; or (2) the defense would result in a lesser sentence than what the petitioner ultimately received. This dual outcome analysis has been applied by other courts, after Hill, to evaluate whether the prejudice standard has been satisfied in a particular case. See, e.g., Creech v. Arave, 928 F.2d 1481, 1487 (9th Cir. 1991), rev’d in part on other grounds, 507 U.S. 468, 113 S. Ct. 1534, 123 L. Ed. 2d 188 (1993), quoting Evans v. Meyer, supra, 375; Ames v. New York State Division of Parole, 772 F.2d 13, 16 (2d Cir. 1985), cert. denied, 475 U.S. 1066, 106 S. Ct. 1379, 89 L. Ed. 2d 605 (1986) (evaluating lesser included charges of which defendant could have been convicted if he had gone to trial and comparing sentence he received through plea bargaining to potential sentence he would have received if he had gone to trial to determine whether prejudice standard was satisfied); Lyman v. Hopkins, 875 F. Sup. 631, 642 (D. Neb. 1995) (in evaluating prejudice court must analyze: [1] whether reasonable person would have gone to trial; [2] whether it is conceivable that defendant would have been acquitted at trial; and [3] “even if not acquitted, is it conceivable that the defendant would have been given a shorter sentence than he actually received’ ’); Isaraphanich v. United States, 632 F. Sup. 1531, 1534 (S.D.N.Y. 1986) (finding no prejudice after reviewing both potential for acquittal and lesser sentence if defendant had not pleaded guilty and had gone to trial). Therefore, we interpret Hill to require the petitioner in this case to show that the defense that was not discovered or explained to him during the plea process would have likely resulted in either an acquittal, or a more favorable sentence following a conviction of the charged offense or of a lesser included offense.

       Although there are several possible defenses that the petitioner could have raised, the petitioner only briefed the potential of successfully raising an extreme emotional disturbance defense apparently because habeas counsel determined that it would have been the most viable. Therefore, we address only the defense of extreme emotional distress in our analysis regarding whether the petitioner had a reasonable probability of successfully raising a defense at trial based on his mental or emotional state.

       We note the dissent’s recitation of evidence of the petitioner’s actions immediately after the killing in support of its argument that this evidence undermines the likelihood that the jury would have found the defendant had proved the affirmative defense of extreme emotional disturbance. Jurors have been known, on more than one occasion, to convict a defendant of manslaughter rather than murder as charged, despite: (1) their obvious rejection of his version of events; see State v. Hoeplinger, 206 Conn. 278, 282-84, 537 A.2d 1010 (1988); State v. Asherman, 193 Conn. 695, 699-701, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); (2) proof of the defendant’s attempts to conceal evidence; see State v. Hoeplinger, supra, 282-84; State v. Asherman, supra, 698-99; and (3) the defendant’s calm appearance following the homicide. See State v. Casey, 201 Conn. 174, 177, 513 A.2d 1183 (1986).

       Given similar facts, other state courts have come to the same conclusion. See, e.g., State v. Savage, 120 N.J. 594, 577 A.2d 455 (1990) (counsel’s performance was ineffective and reasonable probability existed that jury would have reached different conclusion in capital murder case in which, despite defendant’s extensive history of mental problems and drug abuse, counsel did not procure psychological examination, did not consult experts regarding possibility of psychiatric, diminished capacity or intoxication defenses, and failed to question defendant regarding drug use on night prior to murder).

       During the course of plea negotiations, Caldwell had informed Gruenbaum that he would accept nothing less than a plea of guilty to murder with the maximum penalty of sixty years imprisonment.

       The crime of murder, to which the petitioner pleaded guilty, is a class A felony that is punishable by a term of imprisonment of not less than twenty-five years and a maximum life term, which is defined as a term of sixty years. General Statutes §§ 53a-35a and 53a-35b; see footnote 4. First degree manslaughter is a class B felony, however, the maximum penalty for which is twenty years imprisonment. See footnotes 4 and 14.