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Misenti v. Commissioner of Correction

Court of Appeals of Connecticut

May 17, 2016


          Argued January 4, 2016

         Appeal from Superior Court, judicial district of Tolland, Bright, J.

Jeanne M. Zulick, assigned counsel, for the appellant (petitioner).

          Timothy F. Costello, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and David M. Carlucci, assistant state’s attorney, for the appellee (respondent).

          DiPentima, C. J., and Gruendel and Keller, Js. [*]


          DiPENTIMA, C. J.

         The petitioner, Michael Misenti, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court (1) abused its discretion in denying certification to appeal from the determination that Richard Grabow, the petitioner’s trial counsel, had not rendered ineffective assistance, and (2) improperly denied the motion to withdraw from the case filed by the petitioner’s habeas counsel, David B. Rozwaski, at the start of the habeas trial. We dismiss the petitioner’s appeal.

         The court set forth the following factual findings and procedural history in its memorandum of decision. In November, 2013, while operating his computer, the petitioner visited an adult only website ‘‘through which he sought customers for gay pornographic videos.’’ Through that web site, he met and began communicating with the victim, whom the petitioner believed to be an adult but was, in fact, a fourteen year old male. The petitioner made arrangements to meet the victim in person for the purpose of selling him pornographic videos.

         The petitioner went to the victim’s home and provided him with a bag containing videos and a ‘‘sex toy.’’ The victim later told the police that the petitioner had kissed him, had touched his buttocks and had placed his mouth on the victim’s penis. Prior to his arrest or being in custody, the petitioner admitted to the police that he had kissed the victim. At the habeas trial, however, the petitioner denied that any physical contact had occurred.

         The petitioner was arrested and charged with attempt to commit sexual assault in the second degree in violation of General Statutes §§ 53a-49 and 53a-71, sexual assault in the fourth degree in violation of General Statutes § 53a-73a, use of a computer to entice a minor in violation of General Statutes § 53a-90a, and risk of injury to a child in violation of General Statutes § 53-21. The petitioner retained Grabow to represent him.

         Grabow filed a broad discovery request and had numerous discussions with prosecutors regarding a plea agreement. Grabow also met with the petitioner several times and explained the offers from the state. He also explained the elements of the charges to the petitioner, as well as the evidence that the state intended to introduce at trial. Although the petitioner maintained that he had not violated any criminal statute because he had believed that the victim was at least sixteen or seventeen years old, Grabow explained that a mistake about the victim’s age was not a defense to the charges of risk of injury and sexual assault in the fourth degree.[1]

         On September 8, 2004, the petitioner and Grabow appeared for jury selection. At the outset, the criminal trial court told the petitioner that he had to decide if he was going to accept the state’s offer or proceed to trial. The court further explained that once the jury selection process began, ‘‘all bets are off on whatever plea bargaining has occurred before today.’’ After some brief discussion, it notified the parties that jury selection would start after a thirty minute recess.

         After the recess, the court noted that parties had reached an agreement. As noted by the habeas court, ‘‘[t]he petitioner agreed to accept the [state’s] offer so long as he could do so through a plea of nolo contendere and under the Alford doctrine.’’[2] The state filed a substitute information charging the petitioner with risk of injury to a child in violation of § 53-21 (a) (2) and sexual assault in the fourth degree in violation of § 53a-73a. The parties agreed that the petitioner would be sentenced to ten years incarceration, execution suspended after six months, ten years probation, no contact with the victim, and sex offender registration and treatment.

         The court then made the following statement to the petitioner: ‘‘Mr. Misenti, you’ve entered a nolo plea. That means you’re not agreeing to any of the facts stated by the state’s attorney just now, all right? It also gives you a certain amount of protection if there’s any civil suits. But you know that, under those facts, I will be making a finding of guilty under the charges as well the facts, through you’re not admitting-or even denying, at this time-to the point that you just don’t want to take the chance of going to trial and taking the chance that a jury might feel otherwise and the state might be able to get a conviction; is that true?’’ The petitioner responded that he was not guilty of these charges and that ‘‘[t]his thing is taking a tremendous physical and emotional toll on me, and I feel I cannot proceed with a trial.’’ He further explained that he was not mentally or physically capable of proceeding. The court then explained the differences between a nolo contendere plea and a plea made pursuant to the Alford doctrine.

         The petitioner maintained that he did not believe that he was guilty of the charges and that the only reason that he could not proceed was the emotional and physical toll on him. The court replied that it would not accept an Alford plea. Grabow indicated that the Alford plea would be withdrawn. The court stated: ‘‘The nolo does not require that requirement; so it’s a nolo plea, for the reasons stated by [the petitioner]. All right. Okay. So solely nolo. All right. Have you had enough time to think about this?’’ The petitioner responded: ‘‘Not really. I would have liked more time, but my attorney told me that I had to make a decision now.’’ The court responded that it could not accept the nolo contendere plea if the petitioner felt he did not have enough time to think about it. The court agreed to Grabow’s suggestion of a brief recess. During this second recess, the petitioner went to his car and ingested Klonopin, his prescribed antianxiety medicine. Grabow knew that the petitioner was receiving treatment for mental health issues but the petitioner did not inform him that he took Klonopin during the recess.

         After the proceeding resumed, Grabow indicated that a written plea of nolo contendere had been filed. The state then offered the following recitation of facts. The victim and the petitioner had been in contact via an online instant messaging system and then spoke on the telephone. The petitioner arranged an in person meeting at the victim’s home. ‘‘While in the house . . . [the petitioner] and [victim] allegedly kissed, and the [petitioner] allegedly touched the [victim’s] buttocks; he pulled away. He then was, allegedly, Your Honor, according to the statement, allegedly put his mouth on the [victim’s] penis. He then was told to leave, Your Honor, by the [victim]. He did comply with that and left . . . .’’

         The petitioner informed the court that he did not agree with the facts as stated by the prosecutor. The court responded: ‘‘That’s the nolo plea. You’re not admitting to those facts . . . .’’ The petitioner interrupted the court and stated that the charges were ‘‘absolutely false.’’ The court, after pointing out that a nolo plea afforded certain protections in a possible civil action, iterated that ‘‘[t]hat’s what the nolo plea is. You’re not admitting anything . . . .’’ The court then conducted a plea canvass where the petitioner acknowledged, inter alia, that he had enough time to consider the plea, that he had spoken with his attorney, that Grabow had explained the charges against him and the potential penalties that he faced. The petitioner stated that he ...

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