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Pereira v. Commissioner of Correction

Court of Appeals of Connecticut

September 26, 2017

RICARDO PEREIRA
v.
COMMISSIONER OF CORRECTION

          Argued May 22, 2017

         Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland and tried to the court, Fuger, J.; judgment denying the petition; thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court. Appeal dismissed.

          Michael W. Brown, assigned counsel, for the appellant (petitioner).

          Sarah Hanna, assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Jo Anne Sulik, supervisory assistant state's attorney, for the appellee (respondent).

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

         Syllabus

         The petitioner, who had been convicted of murder and kidnapping in the first degree, sought a writ of habeas corpus, claiming that his due process rights were violated as a result of his kidnapping conviction. The petitioner claimed that, in light of the reinterpretation of this state's kidnapping statutes in State v. Salamon (287 Conn. 509), which was decided after his conviction, his kidnapping conviction should be vacated. Pursuant to Salamon, to commit 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 petitioner's conviction stemmed from an incident in which he was in a parked car with the victim when he became enraged, and punched and strangled her. The victim fought back and fled from the car, after which the petitioner drove the car into her, ran over her, dragged her along the road, and then exited the car and kicked her numerous times, resulting in her death. The petitioner claimed that, because the events inside the car were a separate, uncharged assault against the victim, he was entitled to a jury instruction pursuant to Salamon because the petitioner's restraint of the victim was incidental to the uncharged assault. He also claimed that there was a single, continuous crime, starting when he first struck the victim inside the car and ending with her death, and that, because he was charged with kidnapping and murder, he was entitled to a Salamon instruction. The habeas court rendered judgment denying the petition and, thereafter, denied the petition for certification to appeal, and the petitioner appealed to this court. Held that the habeas court did not abuse its discretion in denying the petition for certification to appeal, and, accordingly, the appeal was dismissed: the petitioner's claim regarding the kidnapping charge and the uncharged assault while the petitioner and the victim were inside the car was not reviewable, as the petitioner failed to raise the claim in his posttrial brief, in his habeas petition, or in his petition for certification to appeal, and the habeas court did not address the issue in its memorandum of decision; moreover, the petitioner could not prevail on his claim that he was entitled to a Salamon instruction on the ground that the restraint that occurred in the car was merely incidental to the commission of the murder, as the petitioner's restraint of the victim inside the car was completed before the petitioner engaged in the conduct that caused the victim's death, and, thus, the restraint inside the car, which had criminal significance independent of the events that occurred after the victim escaped from the car, was not necessary to complete the murder, and this court was not persuaded that this issue was debatable among jurists of reason, that it could have been resolved by a court in a different manner, or that it presented a question that was adequate to deserve encouragement to proceed further.

         Procedural History

          OPINION

          DiPENTIMA, C. J.

         The petitioner, Ricardo Pereira, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court (1) abused its discretion in denying his petition for certification to appeal from the denial of his habeas petition and (2) improperly denied his habeas petition. We conclude that the habeas court did not abuse its discretion in denying certification to appeal. Accordingly, we dismiss the petitioner's appeal.

         The following facts and procedural history are relevant to our discussion. In March, 2000, the petitioner was convicted of murder in violation of General Statutes § 53a-54a (a) and kidnapping in the first degree violation of General Statutes § 53a-92 (a) (2) (A). The court, Espinosa, J., sentenced the petitioner to sixty years incarceration on the murder charge and fifteen years incarceration on the kidnapping charge, with the sentences to be served consecutively, for a total effective sentence of seventy-five years incarceration. This court affirmed his conviction on direct appeal. State v. Pereira, 72 Conn.App. 545, 805 A.2d 787 (2002), cert. denied, 262 Conn. 931, 815 A.2d 135 (2003).

         The petitioner filed his first habeas action on October 24, 2003. Following a trial, the first habeas court denied the habeas petition, and this court dismissed the appeal. Pereira v. Commissioner of Correction, 101 Conn.App. 397, 921 A.2d 665, cert. denied, 283 Conn. 906, 927 A.2d 918 (2007).[1] The petitioner commenced the present habeas action on May 2, 2013, and filed the operative petition on January 21, 2016. The petitioner alleged, inter alia, that his due process rights had been violated as a result of his kidnapping conviction. Specifically, he relied on our Supreme Court's decision in State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), which was released nearly one decade after the petitioner's conviction. He argued that as a result of Salamon's reinterpretation of our kidnapping statutes, his conviction of kidnapping should be vacated.

         At the February 2, 2016 habeas trial, the parties agreed that certain documents, mostly transcripts, would be entered into evidence by stipulation in lieu of testimony. The parties further agreed to submit posttrial briefs in lieu of oral argument.[2] The court, Fuger, J., issued its memorandum of decision on May 12, 2016. It denied the petition for a writ of habeas corpus, concluding that the petitioner was not entitled to a Salamon instruction[3] and that even if he was entitled to such an instruction, its absence constituted harmless error. The habeas court subsequently denied the petition for certification to appeal. This appeal followed. Additional facts will be set forth as necessary.

         The petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal. After reviewing the record and the applicable law, we conclude that the habeas court's denial of the petition for certification to appeal did not constitute an abuse of discretion. Accordingly, we dismiss the petitioner's appeal.

         As an initial matter, we set forth our standard of review. ‘‘Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, [the petitioner] must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the merits. . . . To prove that the denial of his petition for certification to appeal constituted an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . .

         ‘‘In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous. In other words, we review the petitioner's substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria . . . adopted by [our Supreme Court] for determining the propriety of the habeas court's denial of the petition for certification.'' (Citations omitted; internal quotation marks omitted.) Sanders v. Commissioner of Correction, 169 Conn.App. 813, 821-22, 153 A.3d 8 ...


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