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Sherbo v. Manson

Court of Appeals of Connecticut

April 3, 1990

Richard SHERBO
v.
John R. MANSON, Commissioner of Correction.

Argued Nov. 3, 1989.

Page 379

[21 Conn.App. 173] Kent Drager, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (petitioner).

Rita M. Shair, Deputy Asst. State's Atty., with whom were Donald A. Browne, State's Atty., and, on the brief, Richard F. Jacobson, Asst. State's Atty., and Marcia Kahn, Law Student Intern, for appellee (respondent).

Before DALY, FOTI and LAVERY, JJ.

LAVERY, Judge.

The petitioner appeals from the judgment denying his petition for a writ of habeas corpus. He claims that the habeas court erred in failing to conclude that his pleas were not knowing, intelligent, and voluntary (1) because of a misunderstanding by the trial court, the prosecutor and

Page 380

his defense counsel concerning the procedure whereby convicted sex offenders are committed to Whiting Forensic Institute (Whiting), and (2) because he was under the influence of medication at the time of the pleas. We find no error.

The following facts are relevant. On March 31, 1981, the petitioner was arrested and charged with various sex offenses, kidnapping in the first degree and robbery in the first degree. His maximum exposure for the eight felonies was 120 years to life.

On April 13, 1982, the petitioner pleaded guilty, pursuant to a plea agreement, to five counts of first degree sexual assault, two counts of first degree kidnapping, and one count of first degree robbery. Before accepting the petitioner's guilty pleas, the trial court questioned him closely, as required by Practice Book ยง 711. During the plea canvass, the court made a commitment to recommend to the commissioner of correction that the petitioner be housed, "for whatever period of time he thought was reasonable, at the Whiting Forensic Institute."

[21 Conn.App. 174] The trial court later sentenced the petitioner to thirty years incarceration. At the petitioner's sentencing hearing, the court made its promised recommendation to the commissioner of correction, but denied the petitioner's motion for an examination by the Whiting staff to determine his eligibility for treatment at Whiting.

Since his sentencing, the petitioner has been confined in the state prison at Somers. He has not spent any time at Whiting Forensic Institute.

I

Before addressing the merits of the petitioner's claims, we must consider the respondent's contention that this court should dismiss the present petition under either the "successive petitions" or "abuse of writ" doctrines. The following procedural background is in order.

In January, 1983, the petitioner filed four pro se habeas petitions. The first petition [1] alleged ineffective assistance of counsel; the second, [2] breach of plea agreement; the third, [3] failure to inform of maximum sentence. The fourth [4] alleged that the pleas were invalid due to the petitioner's mental condition. On January 24, 1984, the habeas court denied the first two petitions, and the court denied the petitioner's request for certification to appeal. The third petition was withdrawn, and the fourth is the petition presently Before this court.

Because the four petitions were filed contemporaneously, the fourth cannot be considered, in the simplest sense, "successive" to the others. Our review of the [21 Conn.App. 175] case file, however, reveals that the fourth was amended on February 7, 1986, two years after the first and second petitions were decided. The grounds for relief stated in the amended petition are broader and better articulated than in the original petition. We must determine, therefore, whether the fourth petition, as amended, constitutes a successive petition or an abuse of writ so as to require the dismissal of the appeal.

"Decisions concerning abuse of the writ are addressed to the sound discretion of the trial court. 'Theirs is the major responsibility for the just and sound administration of ... collateral remedies, and theirs must be the judgment as to whether a second or successive application shall be denied without consideration of the merits.' Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068 [1079], 10 L.Ed.2d 148 (1963)." Iasiello v. Manson, 12 Conn.App. 268, 271, 530 A.2d 1075, cert. denied, 205 Conn. 811, 532 A.2d 586 (1987). We note that the habeas court decided to present petition on the

Page 381

merits, and in its memorandum of decision referred to its prior decision on the other two petitions. Thus, the habeas court implicitly rejected the state's successive petition theory. After reviewing the record, we conclude that the habeas court did not abuse its discretion in deciding the petition on the merits. Moreover, our conclusion is reinforced by the consideration that, to this point, none of ...


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