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Heck v. Commissioner of Correction

Court of Appeals of Connecticut

February 7, 2017

DAVID HECK
v.
COMMISSIONEROF CORRECTION

          Submitted on briefs November 17, 2016

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

          Walter C. Bansley IV filed a brief for the appellant (petitioner).

          Gail P. Hardy, state's attorney, Sarah Hanna, assistant state's attorney, and Lisa Maria Proscino, former special deputy assistant state's attorney, filed a brief for the appellee (respondent).

          DiPentima, C. J., and Keller and Bear, Js.

          OPINION

          PER CURIAM.

         The petitioner, David Heck, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly concluded that counsel who represented him in two criminal trials involving town hall burglaries provided ineffective assistance. We affirm the judgment of the habeas court.

         On June 25, 2009, in connection with a burglary of the Suffield town hall, in Docket No. CR-08-0148136-S (Enfield case), a jury found the petitioner guilty of burglary in the third degree in violation of General Statutes § 53a-103 (a), criminal mischief in the first degree in violation of General Statutes § 53a-115 (a) (5), and larceny in the second degree in violation of General Statutes § 53a-123 (a) (2). The court, Dubay, J., sentenced the petitioner to a total effective term of ten years incarceration, suspended after nine years, with five years of probation.

         On November 18, 2010, in connection with a burglary of the Ashford town hall, in Docket No. CR-08-0136011-S (Danielson case), a jury found the petitioner guilty of burglary in the third degree in violation of § 53a-103 (a), criminal mischief in the first degree in violation of § 53a-115 (a) (5), and attempt to commit larceny in the sixth degree in violation of General Statutes §§ 53a-49 and 53a-125b. The court, Swords, J., sentenced the petitioner to a total effective term of seven years and three months incarceration, followed by three years of special parole, consecutive to his sentence in the Enfield case.

         On direct appeal, this court affirmed the petitioner's conviction in the Enfield case. State v. Heck, 128 Conn.App. 633, 635, 18 A.3d 673, cert. denied, 301 Conn. 935, 23 A.3d 728 (2011). The petitioner did not appeal from the judgment of conviction in the Danielson case.

         On December 16, 2014, the petitioner filed an amended petition for a writ of habeas corpus. Relevant to the present appeal, in count one, the petitioner alleged ineffective assistance of trial counsel, Jean-Paul Garcia Lewis, in connection with his convictions in both the Enfield and Danielson cases. He alleged that trial counsel had been ineffective in failing to move to suppress certain evidence, namely, a global positioning system (GPS) device, that had been seized from a vehicle that the defendant was using at the time that he was arrested by police inHillsborough, New Hampshire, for having burglarized the town hallin that municipality, and in failing to alert the trial court that a New Hampshire court had ordered that the GPS device be returned to him.[1] The GPS device was transferred to the state's attorneys in Enfield and Danielson, and the state utilized it in the presence of the jury during both of the petitioner's criminal trials. Because the GPS device reflected that the Hillsborough, Suffield, and Ashford town halls were among several addresses that recently had been accessed on it, the state used information stored on the GPS device as evidence that the petitioner was implicated in the burglaries of the Suffield and Ashford town halls.[2] In characterizing the nature of the defendant's claim, the habeas court aptly stated that, although trial counsel unsuccessfully had moved to suppress the GPS device on the ground that it had been illegally seized, the petitioner claimed that counsel ‘‘was professionally deficient for failing to include as an alternative ground for exclusion the purportedly illegal transfer of the GPS device to Connecticut despite the assumed lawfulness of the seizure of the [GPS device] by New Hampshire police.'' More precisely, the petitioner criticized the performance of trial counsel in failing to argue that the physical transfer of the GPS device to Connecticut and its subsequent use at his two trials were constitutionally impermissible because once the petitioner's burglary case in New Hampshire was annulled under New Hampshire law sometime after November 12, 2008, any police and court records contained in his case were not disclosable to the public, including Connecticut law enforcement officials. The petitioner argued that he was prejudiced by the use of the GPS device at both trials.[3] Following a trial held on March 17, 2015, the habeas court, Sferrazza, J., denied the petition for a writ of habeas corpus. Judge Sferrazza subsequently granted the petition for certification to appeal.

         In setting forth its findings of fact, the habeas court adopted the summary of facts underlying the Enfield case that were set forth by this court in State v. Heck, supra, 128 Conn.App. 635-37. In relevant part, those facts are as follows: ‘‘During the overnight hours of August 29, 2007, a burglary was committed at the town hall in Suffield. . . . The burglar entered the building, which did not have an alarm system, through a basement storm window that had been pried off its track and dislodged. Once inside, the perpetrator broke open the door to the tax office, pried open the cash register and safe, and left with both cash and checks. During the burglary, the perpetrator rifled through various cabinets, desks and papers in the office, causing considerable property damage . . . .

         ‘‘On September 7, 2007, Christopher Burns, a detective with the Connecticut state police, received a telephone call from police officers in Hillsborough, New Hampshire, stating that they had apprehended the [petitioner] for the burglary of two town halls in New Hampshire. At around 4 a.m. that morning, police in Hillsborough had received a telephone call concerning the [petitioner's] rented pickup truck, which was parked in a driveway . . . in Hillsborough. David Roarick, a captain with the Hillsborough Police Department arrived at the scene two minutes later to investigate. As he approached, he saw a 2007 Dodge pickup truck with a Massachusetts license plate in the driveway with a person sitting in the passenger seat. He saw someone run from across the street toward the property where the truck was parked and then walk behind the house into a wooded area. Roarick called police dispatch, who reported that the truck was registered to Carmac, Inc. He then approached the vehicle and spoke to the passenger, Justin Douglas, who informed Roarick that the driver was visiting a friend nearby but that Douglas did not know the driver's name or where he had gone. Because Douglas' answers were evasive and Roarick believed that the truck may have been stolen, he asked Douglas to exit the vehicle.

         ‘‘After Douglas exited the vehicle, Roarick noticed a GPS device on the dashboard of the truck. In an attempt to determine the location of the missing driver, Roarick pressed the recent entry button on the [GPS] device to scroll through the recently entered addresses. Among the first addresses displayed were those of the Hills-borough and Windsor, New Hampshire town halls, which had been burglarized. He also found a driver's license and business card in the center console with the [petitioner's] name on it, although he did not know if they belonged to the driver of the vehicle. . . . Michael Martin, a Henniker, New Hampshire police officer, arrived on the scene and walked over to the Hills-borough town hall to investigate and determined that it had been burglarized. Eventually, Douglas provided to Roarick the number for the [petitioner's] cellular telephone. The [petitioner] failed to answer when Roar-ick called him from his own telephone, however, when Roarick called him using Douglas' telephone, the [petitioner] answered. Roarick informed the [petitioner] that he knew about the burglary at the Hillsborough town hall and that he should turn himself in ...


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