Opinion
CV144006674S
12-11-2017
Carl ALEXANDER #268703 v. WARDEN
UNPUBLISHED OPINION
OPINION
Westbrook, J.
The petitioner, Carl Alexander, initiated this petition for a writ of habeas corpus, alleging claims for a due process violation and ineffective legal representation by habeas counsel. The petitioner requests that the court vacate his kidnapping conviction. Both parties filed motions for summary judgment. The parties appeared before the court on August 14, 2017. For the reasons articulated more fully below, the respondent’s motion for summary judgment is GRANTED and the petitioner’s motion for summary judgment is DENIED.
I
PROCEDURAL HISTORY
On January 1, 2001, the petitioner was arrested in connection with an alleged home invasion in Bridgeport, Connecticut. He was charged with robbery in the first degree in violation of General Statutes § 53a-134(a)(2), two counts of kidnapping in the first degree in violation of General Statutes § 53a-92, burglary in the first degree in violation of General Statutes § 53a-101(a)(1), unlawful restraint in the first degree in violation of General Statutes § 53a-95 and larceny in the first degree in violation of General Statutes § 53a-116. The state also charged the petitioner with three sentence enhancements pursuant to General Statutes § 53a-202k. The petitioner was represented by Attorney Errol Skyers. The petitioner pleaded not guilty and elected a trial by jury.
On December 9, 2002, evidence commenced in the petitioner’s criminal jury trial with testimony by the complaining witness, Margaret Morrison. Morrison testified that the petitioner and two other men invaded her home and demanded money and other valuables at gunpoint. Morrison testified that the men steered her from room to room as they ransacked the house. She further testified that the assailants then bound her mouth, wrists and legs with duct tape and locked her in a bathroom in the basement, where she remained until her husband discovered her upon his return home. After hearing the victim’s testimony on direct examination, the petitioner withdrew his not guilty pleas and pleaded guilty to the charges of kidnapping in the first degree, robbery in the first degree and burglary in the first degree.
On January 8, 2003, the petitioner testified at the trial of one of his alleged co-defendants, Burley Whitten. The petitioner’s testimony at Whitten’s trial was consistent with Morrison’s testimony at the petitioner’s trial. The petitioner testified that they moved Morrison around the house as they looked for goods for about forty minutes before leaving her in the basement.
On April 25, 2003, the trial court sentenced the petitioner to a total effective sentence of thirty years of imprisonment. He received a twenty-five-year sentence on the kidnapping count. There was no direct appeal of the underlying convictions.
The petitioner brought his first habeas petition, last amended on August 22, 2005, alleging an ineffective assistance of counsel claim as to Attorney Skyers for failing to properly advise the petitioner regarding his guilty plea. The petitioner was represented by Attorney Sebastian DeSantis. The habeas court, Fuger, J., denied the petition on August 26, 2005. The petitioner appealed the habeas court’s decision, and the petitioner’s appeal was dismissed. Alexander v. Commissioner of Correction, 103 Conn.App. 629, 930 A.2d 58, cert. denied, 284 Conn. 939, 937 A.2d 695 (2007).
The petitioner initiated his second habeas petition, last amended on April 22, 2011, alleging, inter alia, ineffective assistance of counsel claims as to his first habeas counsel, Attorney DeSantis. The habeas court, Santos, J., denied the petition on June 29, 2011. The petitioner appealed the habeas court’s decision, and the decision was affirmed. Alexander v. Commissioner of Correction, 135 Conn.App. 901, 40 A.3d 823, cert. denied, 305 Conn. 917, 46 A.3d 170 (2012).
The petitioner initiated the present habeas petition, his third petition, on October 3, 2014. In his two-count amended petition, filed on February 10, 2017, the petitioner claims that his due process rights are violated because his kidnapping conviction is not supported by sufficient pursuant to State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), in which our Supreme Court reconsidered its interpretation of the kidnapping statute, and that his prior habeas attorneys provided him ineffective assistance of counsel for failing to raise this claim in his prior habeas cases. The respondent filed a return on June 19, 2017, generally denying the petitioner’s claims and asserting special defenses of procedural default, deliberate bypass and statute of limitations.
On July 7, 2017, the petitioner filed a motion for summary judgment as to both counts of the petition. In support of the motion, the petitioner filed a memorandum of law accompanied by portions of transcripts from prior proceedings and copies of prior habeas petitions and decisions. On July 13, 2017, the respondent filed an objection to the petitioner’s motion and a cross motion for summary judgment and memorandum of law in support of the motion. The parties appeared before this court for a hearing on August 14, 2017.
II
DISCUSSION
" ‘The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.’ ... Rogers v. Commissioner of Correction, 143 Conn.App. 206, 210, 70 A.3d 1068 (2013). ‘Practice Book § 23-37 provides in relevant part that a habeas court may grant summary judgment if the pleadings, affidavits and any other evidence submitted show that there is no genuine issue of material fact between the parties requiring a trial and the moving party is entitled to judgment as a matter of law.’ ... Lawrence v. Commissioner of Correction, 125 Conn.App. 759, 762, 9 A.3d 772 (2010)." Eric M. v. Commissioner of Correction, 153 Conn.App. 837, 842-43, 108 A.3d 1128 (2014), cert. denied, 315 Conn. 915, 106 A.3d 308 (2015).
Prior to the Salamon decision, the firmly established rule in Connecticut was that a defendant could be convicted of a kidnapping when committed in conjunction with another crime, even if the movement or restraint of the victim was only incidental to that other crime. See State v. Chetcuti, 173 Conn. 165, 170, 377 A.2d 263 (1977). " In [State v. Salamon, supra 287 Conn. 509], our Supreme Court reconsidered its interpretation of Connecticut’s kidnapping statutes ... Ultimately, the court concluded that [o]ur legislature ... intended to exclude from the scope of the more serious crime of kidnapping and its accompanying severe penalties those confinements or movements of a victim that are merely incidental to and necessary for the commission of another crime against that victim. Stated otherwise, to commit a kidnapping in conjunction with another crime, a defendant must intend to prevent the victim’s liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime ... The court stated that [the] holding [in Salamon was] relatively narrow and [that it] directly affects only those cases in which the state cannot establish that the restraint involved had independent significance as the predicate conduct for a kidnapping." State v. Strong, 122 Conn.App. 131, 140-41, 999 A.2d 765, cert. denied, 298 Conn. 907, 3 A.3d 73 (2010). Shortly after the Salamon decision, the Supreme Court decided Luurtsema v. Commissioner of Correction, 299 Conn. 740, 12 A.3d 817 (2011), in which the Supreme Court held that inmates will be presumptively entitled to the benefit of the court’s new interpretation pursuant to Salamon on collateral review. Id., 760.
In Little v. Commissioner of Correction, 177 Conn.App. 337 (2017), the Appellate Court recently held that the Salamon decision did not apply retroactively to a petitioner who had pleaded guilty. " [W]e fail to see how not applying Salamon retroactively in the present case would be fundamentally unfair or manifestly unjust. ‘Plea bargains always entail risks for the parties- risks relating to what evidence would or would not have been admitted at trial, risks relating to how the jury would have assessed the evidence and risks relating to future developments in the law. The salient point is that a plea agreement allocates risk between the two parties as they see fit. If courts disturb the parties’ allocation of risk in an agreement, they threaten to damage the parties’ ability to ascertain their legal rights when they sit down at the bargaining table and, more problematically for criminal defendants, they threaten to reduce the likelihood that prosecutors will bargain away counts (as the prosecutors did here) with the knowledge that the agreement will be immune from challenge on appeal.’ United States v. Bradley, 400 F.3d 459, 464 (6th Cir.), cert. denied, 546 U.S. 862, 126 S.Ct. 145, 163 L.Ed.2d 144 (2005); accord United States v. Lockett, 406 F.3d 207, 213 (3d Cir. 2005); see also Young v. United States, 124 F.3d 794, 798 (7th Cir. 1997) (‘If the law allowed the defendant to get off scot free in the event the argument later is shown to be a winner, then the defendant could not get the reduction in the first place. Every plea would become a conditional plea, with the (unstated) condition that the defendant obtains the benefit of favorable legal developments, while the prosecutor is stuck with the original bargain no matter what happens later. That approach destroys the bargain, and the prospect of such an outcome will increase the original sentence.’ [Emphasis omitted]), cert. denied, 524 U.S. 928, 118 S.Ct. 2324, 141 L.Ed.2d 698 (1998)." Little v. Commissioner of Correction, supra, 177 Conn.App. 366-67.
The Little court concluded that " the traditional rationales underlying the writ of habeas corpus do not favor applying Salamon retroactively in the present case." Little v. Commissioner of Correction, supra, 177 Conn.App. 363. First, the court found " there is no risk that the petitioner stands convicted of an act that the law does not make criminal"; id., 363; because the movement and confinement of the victim was not merely incidental to the commission of the burglary and robbery, and therefore sufficient in and of itself to warrant independent prosecution of a kidnapping charge.
Similarly, in the present case, this court finds that the movement and confinement of the victim was not merely incidental to the commission of the other crimes. " The court in Salomon made clear that when ‘the victim is moved or confined in a way that has independent criminal significance, that is, the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime’; State v. Salomon, supra, 287 Conn. at 547, 949 A.2d 1092; a defendant may still be convicted of kidnapping in conjunction with another substantive crime. Id., at 547, 122 A.3d 555 n.33; see, e.g., State v. Ward, 306 Conn. 718, 736-39, 51 A.3d 970 (2012) (sufficient evidence of kidnapping when defendant dragged victim at knife-point from kitchen to bedroom where he moved her from bed to floor for sexual assault because that act made victim’s " possibility of escape even more remote" and sexual assault was brief part of entire fifteen-minute encounter), State v. Hampton, 293 Conn. 435, 463-64, 988 A.2d 167 (2009) (absence of Salamon instruction harmless because defendant drove victim around for approximately three hours before ordering her out of car, sexually assaulting her, and shooting her); State v. Nelson, 118 Conn.App. 831, 834-35, 861-62, 986 A.2d 311 (absence of Salamon instruction harmless because defendant repeatedly had assaulted victim in his apartment, demanding to know location of his money and threatening to kill him, and, afterward, restrained him for several hours while transporting him to several locations), cert. denied, 295 Conn. 911, 989 A.2d 1074 (2010)." Little v. Commissioner of Correction, supra, 177 Conn.App. 364. In this case, the undisputed facts indicate that the movement and confinement of the victim was not merely incidental to the commission of the robbery and burglary of her home because the degree of the movement and confinement, particularly when she was locked in a basement bathroom until her husband found her upon his return home, was not necessary to commit the offenses.
Second, the Little court concluded that " there is no risk that the petitioner faces a punishment that the law cannot impose upon him. See Schriro v. Summerlin, supra, 542 U.S. at 352, 124 S.Ct. 2519. Kidnapping in the first degree is a class A felony, for which a court may impose a term of imprisonment of ‘not less than ten years nor more than twenty-five years ...’ General Statutes (Rev. to 2003) § 53a-35a(3); see also General Statutes § 53a-92(b). Salamon had no impact on this sentencing scheme. As a result, the law clearly authorizes the petitioner’s sentence of fifteen years and eight months imprisonment." Little v. Commissioner of Correction, supra, 177 Conn.App. 365. Similarly, the law authorizes the petitioner’s sentence of twenty-five years imprisonment on the kidnapping count in this case.
Finally, the Little court held that " [t]he state has also relied sufficiently to its detriment on our Supreme Court’s prior interpretation of our kidnapping statutes when constructing the terms of the plea agreement such that applying Salamon retroactively in the present case would be inappropriate. Accordingly, the petitioner’s due process claim, which is predicated on the retroactive application of Salamon, n ecessarily fails." Similarly, the state’s reliance on the Supreme Court’s prior interpretation of the kidnapping statutes when negotiating the plea deal taken by the petitioner also renders a retroactive application of Salamon inappropriate in the present case.
For the foregoing reasons, the petitioner’s due process claim must fail. Additionally, the petitioner’s ineffective assistance of counsel claim regarding counsel’s failure to raise the due process claim in prior habeas cases must also fail. Accordingly, the respondent’s motion for summary judgment is granted as the respondent is entitled to judgment as a matter of law as to both claims.
III
CONCLUSION
As there are no disputed issues of material fact and the respondent is entitled to judgment as a matter of law, the respondent’s motion for summary judgment is GRANTED and the petitioner’s motion for summary judgment is DENIED.