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Despres v. Commissioner of Correction

Court of Appeals of Connecticut

June 28, 2016

MARK DESPRES
v.
COMMISSIONER OF CORRECTION

          Argued April 6, 2016

         (Appeal from Superior Court, judicial district of Tolland, Cobb, J.)

          April E. Brodeur, assigned counsel, for the appellant (petitioner).

          Lawrence J. Tytla, supervisory assistant state’s attorney, with whom was Michael L. Regan, state’s attorney, for the appellee (respondent).

          DiPentima, C. J., and Lavine and Alvord, Js.

          OPINION

          ALVORD, J.

         Following a grant of certification to appeal by the habeas court, the petitioner, Mark Des-pres, appeals from the judgment of the habeas court denying his second petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court (1) ‘‘used an erroneous standard and analysis’’ in rejecting his claim that the ineffective assistance of his counsel at sentencing deprived him of his right to appeal from the judgment of conviction on his guilty pleas, and (2) ‘‘used an erroneous analysis’’ in rejecting his claim that the judge who presided over his first habeas trial should have been recused because his involvement in pretrial matters of the petitioner’s criminal prosecution created an appearance of impropriety. We disagree and, accordingly, affirm the judgment of the habeas court.

         The record reveals the following relevant facts and procedural history. On March 10, 1994, the petitioner murdered Anson B. Clinton III at the request of former Attorney Haiman Clein. Clein was having an affair with an associate in his law firm, former Attorney Beth Ann Carpenter, whose sister was married to Clinton. Carpenter was engaged in a custody dispute over the daughter of her sister. Carpenter asked Clein to kill Clinton, and Clein hired the petitioner to commit the murder.[1] Clein told the petitioner that he was involved with a woman whose niece was being abused by Clinton, and that the only way to stop the abuse was to kill Clinton.

         Through a newspaper advertisement, the petitioner discovered that Clinton was selling a tow truck. The petitioner called Clinton and made arrangements to meet him at a designated time and place to discuss his interest in purchasing the truck. The petitioner brought his fifteen year old son to the meeting and, after a brief conversation, Clinton agreed to show them the truck. The petitioner and his son followed Clinton on Interstate 95 to an exit in East Lyme. The petitioner flashed his headlights, indicating that he wanted Clinton to pull over to the side of the roadway. After stopping, Clinton and the petitioner exited their vehicles and Clinton approached the petitioner. The petitioner then shot Clinton multiple times and ran over his body while speeding away from the scene when he saw headlights approaching the area. Clinton died from gunshot wounds to his head and upper body.

         The petitioner was arrested in connection with Clinton’s death and, ultimately, was charged with capital felony murder in violation of General Statutes (Rev. to 1994) § 53a-54b, murder in violation of General Statutes § 53a-54a, and conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a. Prior to his trial date, the petitioner and the state engaged in extensive plea negotiations. At that time, he was represented by Attorney Michael Fitzpatrick. Fitzpatrick investigated the case in preparation for trial on the capital felony murder charge, which exposed the petitioner to the death penalty, and hired a forensic psychiatrist and a sentencing consultant. The forensic psychiatrist determined that the petitioner was competent to stand trial and that he had not been suffering from any mental or emotional condition at the time he murdered Clinton. He also determined that there were some mitigating factors that could be used during the sentencing phase of the trial. The petitioner was fully engaged in assisting with his defense and in discussing the state’s plea offers with Fitzpatrick.

         On May 6, 1997, which was during jury selection for the scheduled criminal trial, the petitioner and the state reached a plea agreement. The agreement, reduced to writing and signed by the petitioner, provided that he would plead guilty to murder and conspiracy to commit murder in exchange for a recommended sentence of forty-five years incarceration, with the right to argue for less time. The agreement further provided that if the petitioner cooperated with the state in its prosecutions of Clein and Carpenter, the charge of capital felony murder would be nolled at the time of his sentencing.[2]The petitioner pleaded guilty to murder and conspiracy to commit murder that same day, and was canvassed thoroughly by the court, Clifford, J., with respect to the terms of the plea agreement. The matter was then continued for sentencing pending the resolution of his codefendants’ cases. See footnote 2 of this opinion.

         Soon after entering his guilty pleas, the petitioner began expressing his dissatisfaction with his agreed upon sentence and threatened to discontinue his cooperation with the state unless a more beneficial plea agreement could be reached. He also threatened to engage in a hunger strike. He filed motions to withdraw his guilty pleas, and motions to discharge his attorney and to proceed as a self-represented party. When Carpenter was criminally prosecuted for her role in Clinton’s death, the petitioner refused to testify at her trial. On April 22, 2002, the state’s attorney notified the petitioner that he had violated the terms of the plea agreement. It was unclear at that time whether the state would vacate the agreement and proceed to trial or seek to negotiate an agreement less favorable to the petitioner.

         A few months prior to the petitioner’s scheduled sentencing in February, 2003, the petitioner consulted with Attorney Jon Schoenhorn to discuss representation at the sentencing hearing. The petitioner decided to retain Schoenhorn, who succeeded in convincing the state not to vacate the plea agreement. Accordingly, the petitioner did not lose the benefits of that agreement, and his sentence was capped at forty-five years. Although Schoenhorn argued for a lesser period of incarceration at the sentencing hearing, Judge Clifford imposed a forty-five year sentence because of the heinous nature of the crime and the petitioner’s failure to cooperate fully with the state at Carpenter’s trial. The petitioner did not appeal from the judgment of conviction.[3]

         Several months after the sentencing, the petitioner contacted Schoenhorn and raised the issue of appealing his convictions. The petitioner subsequently filed a motion to correct an illegal sentence, which was denied by the trial court and affirmed on appeal. State v.Des-pres, 107 Conn.App. 164, 165, 167, 944 A.2d 989, cert. denied, 288 Conn. 904, 953 A.2d 649 (2008). He then filed his first petition for a writ of habeas corpus, claiming that his pleas were not intelligently or knowingly made because Fitzpatrick failed to explain the plea canvass to him. The petitioner was represented by Attorney Laljeebhai Patel during the first habeas trial. The ...


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