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- Little v. Commissioner of Correction

Court of Appeals of Connecticut

October 17, 2017

JERMAINE LITTLE
v.
COMMISSIONER OF CORRECTION

          Argued May 30, 2017

          Naomi T. Fetterman, assigned counsel, for the appellant (petitioner).

          Rita M. Shair, senior assistant state's attorney, with whom were Kevin D. Lawlor, state's attorney, and, on the brief, Jo Anne Sulik, supervisory assistant state's attorney, for the appellee (respondent).

          Lavine, Alvord and Beach, Js.

         Syllabus

         The petitioner, who had been convicted, on a plea of guilty, of the crime of kidnapping in the first degree, sought a writ of habeas corpus, claiming, inter alia, that his plea was invalid because, at the time he pleaded guilty, he was not aware of the additional element of intent, which was enunciated by our Supreme Court in State v. Salamon (287 Conn. 509) four years after his conviction. Specifically, he claimed that he did not know or understand that, as set forth in Salamon, to be guilty of kidnapping in the first degree, he had to intend to prevent the victim's liberation for a longer period of time or to a greater degree than that which was necessary to commit a separate crime. At trial, the petitioner had pleaded guilty to kidnapping pursuant to a negotiated plea agreement, after which the state nolled charges against him of burglary in the first degree and robbery in the first degree. The habeas court rendered judgment denying the habeas petition in part and, thereafter, denied the petition for certification to appeal, and the petitioner appealed to this court. On appeal, he claimed that Salamon should be applied retroactively to his case because there is no differentiation between a conviction obtained after a trial or by way of a guilty plea, and there was a risk that his conviction did not comport with the due process requirements for guilty pleas.

         Held:

Salamon Salamon

         2. The petitioner could not prevail on his claim that his guilty plea violated his right to due process and, thus, was invalid because it was not made knowingly, intelligently and voluntarily in light of the reinterpretation in Salamon of the kidnapping statutes: because there was no binding precedent as to whether Salamon should be applied retroactively to collateral attacks on a kidnapping conviction when the defendant pleaded guilty to only that charge pursuant to a plea agreement, in deciding that issue this court adopted the rule and reasoning of the plurality opinion in Luurtsema v. Commissioner of Correction (299 Conn. 740), which adopted a general presumption that Salamon applies retroactively in habeas corpus proceedings, but left open the possibility that there could be situations in which the traditional rationales underlying the writ of habeas corpus may not favor retroactive application; moreover, traditional rationales underlying the writ of habeas corpus did not favor applying Salamon retroactively in the present case, as there was no risk that the petitioner stood convicted of an act that the law did not make criminal or that he faced a punishment that the law could not impose on him, and the state relied sufficiently to its detriment on our Supreme Court's interpretation of our kidnapping statutes prior to Salamon when constructing the terms of the petitioner's plea agreement such that applying Salamon retroactively in the present case would be inappropriate.

         Procedural History

         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 in part; thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court. Affirmed.

          OPINION

          ALVORD, J.

         The petitioner, Jermaine Little, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his second petition for a writ of habeas corpus (second habeas petition). He claims that the habeas court (1) abused its discretion by denying his petition for certification to appeal; (2) improperly concluded that his guilty plea to kidnapping in the first degree was knowing, intelligent, and voluntary in light of our Supreme Court's subsequent reinterpretation of our kidnapping statutes in State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008); and (3) improperly concluded that he was not actually innocent of kidnapping in the first degree. We conclude that the habeas court abused its discretion by denying the petition for certification to appeal, but that the habeas court properly denied the petitioner's second habeas petition. Accordingly, we affirm the judgment of the habeas court.

         The following factual and procedural history is relevant to this appeal. On September 9, 2003, the petitioner and three other men abducted the victim, Jerry Brown, at gunpoint as he left his business in Bridgeport. Little v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-06-4000949-S, 2008 WL 4415754, *1 (September 15, 2008) (Little I). The men drove up to Brown in a white Mazda minivan. Id. Three of the men exited the minivan, forced Brown into his own car, and demanded his money, threatening to kill him if he did not comply. Id. When Brown said that his money was at his house, they drove with Brown to his house in Shelton. Id. While en route, the minivan pulled alongside Brown's car, and the driver motioned the men in Brown's car to call him, which they did, using Brown's cell phone. Id. When they arrived at Brown's house, the men removed approximately $25, 000 to $28, 000 in cash, checks, and jewelry from the safe in his bedroom. Id.

         Brown reported the incident to the police, provided a written statement describing the events and his abductors, and identified the petitioner from a photographic array as the driver of the minivan and the fourth person to enter his house. Id., *3 and n.1. The subsequent investigation revealed that the phone number that Brown's abductors had called with his phone while driving to his house was the petitioner's phone number and that the petitioner was known to drive a white Mazda mini-van. Id., *3. Detectives then interviewed the petitioner concerning his involvement in the Brown abduction and robbery. In a signed incident report, Detective Richard S. Yeomans reported that the petitioner ‘‘admitted to being involved in the [k]idnapping and [r]obbery . . . . He stated [Kyle] Glenn, [James] Freelove, and [Kevin] Harrison went into the house with Brown while he waited outside in his vehicle.'' Yeomans further reported that Freelove had ‘‘admitted to being involved with the kidnapping and robbery of Jerry Brown in Shelton. He further stated Jermaine Little, Kevin Harrison and Isaac Peoples were the other participants in the kidnapping and robbery. Freelove stated he and Harrison were in Beardsley Terrace when Little pulled up to them and asked if they wanted to do a ‘job' with him. Freelove stated Little then went [to] pick up Peoples. . . . Peoples and Little were armed with semi automatic handguns.'' Freelove explained that, after they abducted Brown, he, Harrison and Peoples drove with Brown in Brown's car while the petitioner followed them in his van. Freelove ‘‘stated when they arrived at Brown's house they all went into the house including Little.''

         The petitioner subsequently was charged in state court with kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B), [1] burglary in the first degree in violation of General Statutes § 53a-101, and robbery in the first degree in violation of General Statutes § 53a-134 (state case).[2] The petitioner was further charged in federal court with being a felon in possession of a firearm in violation of 18 U.S.C. § 922 (g) (1) (federal case).[3] Little v. United States, Docket No. 3:05-CV-1674 (MRK), 2006 WL 2361723, *1 (D. Conn. August 15, 2006). During this time, the petitioner also had an ongoing state narcotics case, for which he received a sentence of eight years of imprisonment while the state and federal cases remained pending.

         Although ‘‘[t]he petitioner initially pleaded not guilty and consistently exhibited an intent to take the case to trial''; Little I, supra, 2008 WL 4415754, *2; he ultimately decided to plead guilty pursuant to separate written plea agreements with the state and the federal government. Under the terms of those agreements, the petitioner agreed to plead guilty to kidnapping in the first degree in the state case and to being a felon in possession of a firearm in the federal case. In exchange, the state and the federal government agreed to recommend to their respective sentencing courts a sentence of fifteen years and eight months of imprisonment, and to request that the state and federal sentences run concurrently. The parties further agreed that it would be left to the discretion of the sentencing courts whether to run those sentences concurrently with or consecutively to the eight year sentence that the petitioner had begun serving in the narcotics case.

         On November 29, 2004, the petitioner pleaded guilty in federal court to being a felon in possession of a firearm. Little v. United States, supra, 2006 WL 2361723, *1. On December 22, 2004, the petitioner pleaded guilty to kidnapping in the first degree. At the beginning of the plea hearing, the prosecutor informed the court, Carroll, J., that the petitioner was pleading guilty pursuant to a written plea agreement, and she briefly explained the terms of that agreement. The prosecutor then informed the court that ‘‘counsel is telling me [that the petitioner] again is making clear he wishes to reject the state's offer. And if that's so, I'm just going to ask that the court make full inquiry so that we don't later have a collateral proceeding claiming that his lawyer didn't inform him or that he wasn't aware of these things.'' The prosecutor expressed her surprise that the petitioner would repudiate the plea agreement. She observed that the petitioner was currently exposed to a maximum term of imprisonment of sixty-five years in the state case, that his sentencing exposure would increase if the state charged him with conspiracy, [4] and that, if the petitioner rejected the plea agreement, the state could seek a sentence of more than fifteen years and eight months imprisonment.

         The court briefly canvassed the petitioner to ensure that he understood the terms of his plea agreement, that he did not have to plead guilty, and that it was his decision alone whether to plead guilty. After discussing the matter with trial counsel, the petitioner represented, through trial counsel, that he was ready to plead guilty. The petitioner pleaded guilty to kidnapping in the first degree, [5] and the prosecutor recited the factual basis for the guilty plea[6] and reiterated the terms of the plea agreement.

         The court next canvassed the petitioner to ensure that his plea was knowing, intelligent, and voluntary. During this canvass, the petitioner confirmed, inter alia, that he understood the terms of his plea agreement; he had had enough time to speak with his attorney about the case; his attorney had explained to him the nature and elements of kidnapping in the first degree; his attorney had reviewed with him all of the state's evidence against him; the prosecutor's recitation of the facts supporting his guilty plea was ‘‘essentially correct''; nobody was threatening or forcing him to plead guilty; and he was voluntarily pleading guilty because he was in fact guilty. The court found that the petitioner's plea was knowing, intelligent, and voluntary and accepted it.

         The petitioner was subsequently sentenced, in accordance with the terms of his plea agreement, to fifteen years and eight months of imprisonment in the state case and the federal case, and those sentences were run concurrently with each other and with the petitioner's sentence in the narcotics case. The prosecutor in the state case further indicated at the sentencing hearing that she had entered a nolle prosequi with respect to the petitioner's remaining charges of burglary in the first degree and robbery in the first degree.

         On February 3, 2006, the petitioner filed his first petition for a writ of habeas corpus (first habeas petition), in which he alleged various claims of ineffective assistance of trial counsel.

         On July 1, 2008, while the first habeas petition remained pending, our Supreme Court decided State v. Salamon, supra, 287 Conn. 517-18, 531, 542, in which it abrogated thirty years of kidnapping jurisprudence. Specifically, the court held for the first time that to convict a defendant of a kidnapping in conjunction with another crime, the state must prove that the defendant ‘‘intend[ed] 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.'' Id., 542.

         On September 15, 2008, the first habeas court, A. Santos, J., denied the first habeas petition. Little I, supra, 2008 WL 4415754, *1. The first habeas court, in part, rejected the petitioner's claims of ineffective assistance of counsel because it concluded that, even if it presumed that trial counsel rendered deficient performance during the pleading process, the petitioner failed to prove prejudice. Id., *3. The first habeas court observed: ‘‘The evidence clearly reveals that the petitioner was present, with a firearm, in Brown's home when the robbery took place. It also reveals that the petitioner drove the rest of the kidnappers to Brown's workplace to set up the kidnapping and robbery. . . . In the absence of any compelling contrary evidence, this court cannot say that the petitioner would have been likely to be successful had he chosen to go to trial. Furthermore, the petitioner faced additional charges and, if he had chosen to go to trial, would have been exposed to a total possible sentence of sixty-five years. It is highly unlikely that he would have obtained a more favorable result than the fifteen years and eight months he received under the plea agreement. There would also be no guarantee that the sentence would be set up to run concurrently with the federal sentence he faced, as the plea agreement provided. . . . While it is clear that the petitioner had previously expressed a desire to go to trial, the record also reveals that he made the decision to accept the state's plea offer knowingly, intelligently and voluntarily.'' (Citations omitted.) Id., *3-4.

         On February 22, 2013, the petitioner initiated this second habeas action. On June 9, 2015, the petitioner filed the operative habeas petition. In relevant part, the petitioner alleged in count one that his guilty plea was not knowing, intelligent, and voluntary because ‘‘he did not know or understand that in order to be convicted of kidnapping in the first degree under § 53a-92 (a) (2) (B), a criminal defendant needed to intend to restrain the victim for a longer period of time or to a greater degree than that which was necessary to commit or advance the commission of a separate felony'' (due process claim). In count four, the petitioner alleged that he was actually innocent of kidnapping in the first degree because he ...


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