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St. Juste v. Commissioner of Correction

Supreme Court of Connecticut

January 30, 2018

JEAN ST. JUSTE
v.
COMMISSIONER OF CORRECTION

          Argued October 13, 2017

          Justine F. Miller, assigned counsel, for the appellant (petitioner).

          Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, Adam E. Mattei, assistant state's attorney, and Gerard P. Eisenman, former senior assistant state's attorney, for the appellee (respondent).

          Rogers, C. J., and Palmer, McDonald, Robinson and D'Auria, Js.

          OPINION

          ROBINSON, J.

         This certified appeal presents a question of first impression to this court, namely, whether we should apply the federal courts' modified categorical analysis to determine whether a Connecticut criminal statute, which lists potential offense elements in the alternative, carries the adverse immigration consequences attendant to a crime of moral turpitude as defined in 8 U.S.C. § 1101 (a) (13) (C) (v) of the Immigration and Nationality Act (immigration act), 8 U.S.C. § 1101 et seq.[1] The petitioner, Jean St. Juste, appeals, upon our grant of his petition for certification, [2] from the judgment of the Appellate Court dismissing, as moot, his appeal from the judgment of the habeas court, which had denied his amended petition for a writ of habeas corpus challenging a conviction of assault in the second degree in violation of General Statutes § 53a-60 (a) (2). St. Juste v. Commissioner of Correction, 155 Conn.App. 164, 165-66, 109 A.3d 523 (2015). In its decision, the Appellate Court agreed with the respondent, the Commissioner of Correction (commissioner), and concluded that the habeas appeal was rendered moot by the petitioner's subsequent deportation to Haiti because any relief that could be provided in relation to the petitioner's assault conviction would have no effect on his ability to lawfully reenter this country or to become a citizen. Id., 181. Specifically, the Appellate Court concluded that a prior unchallenged conviction of threatening in the second degree in violation of General Statutes (Rev. to 2005) § 53a-62 (a), [3] which the Appellate Court concluded constituted a crime of moral turpitude under the immigration act, would remain as an impediment to the petitioner's reentry. Id. Following case law from the United States Court of Appeals for the Second Circuit, we conclude that § 53a-62 (a) is a divisible statute because it lists potential offense elements in the alternative, not all of which constitute crimes of moral turpitude as a matter of federal law. Applying a modified categorical approach to this divisible statute, because the record does not establish the subdivision of § 53a-62 (a) under which the petitioner was convicted, we further conclude that the Appellate Court improperly determined that the petitioner's threatening conviction constituted a crime of moral turpitude that rendered moot his habeas appeal challenging his assault conviction. Accordingly, we reverse the judgment of the Appellate Court.

         The opinion of the Appellate Court sets forth the relevant facts and procedural history. ‘‘On July 26, 2010, the petitioner filed an amended petition for a writ of habeas corpus in which he alleged that, on December 17, 2007, he pleaded guilty to assault in the second degree in violation of . . . § 53a-60 (a) (2), and guilty under the Alford doctrine[4] to possession of a sawed-off shotgun in violation of General Statutes § 53a-211. He was represented by Attorney Howard Ignal. On January 28, 2008, he was sentenced pursuant to a plea agreement to a total effective sentence of five years incarceration, execution suspended after eighteen months, followed by five years of probation. On July 27, 2009, the petitioner, represented by Attorney Anthony Collins, filed a motion to withdraw his guilty pleas on the ground that at the time he entered them, he did not understand their immigration consequences. On November 17, 2009, the [trial] court denied the motion.

         ‘‘In his two count amended petition, the petitioner alleged that Ignal rendered ineffective assistance of counsel because, among other deficiencies, he (1) failed to educate himself about the immigration consequences of the pleas, (2) misadvised the petitioner with respect to the immigration consequences of the pleas, and (3) failed to meaningfully discuss with the petitioner what immigration consequences could . . . flow from the pleas. The petitioner alleged that Ignal's representation was below that displayed by attorneys with ordinary training and skill in . . . criminal law, and that but for such representation, he would not have pleaded guilty and he would have resolved the case in a way that would not result in ‘deportation consequences.' In the second count of his petition, the petitioner alleged that his pleas were not knowingly, voluntarily, and intelligently made because he made them under the mistaken belief that his conviction would not subject him to deportation. The petitioner alleged that ‘[a]s a result of his conviction, [he] has been ordered removed from this country by an immigration judge, and the judge's order has been affirmed by the Board of Immigration Appeals.' Additionally, the petitioner alleged that ‘[t]he basis for the removal order was the conviction [of] assault in the second degree and possession of a sawed-off shotgun.'[5]

         ‘‘Following an evidentiary hearing, the habeas court orally rendered its decision denying the petition.[6] In relevant part, the court stated that it accepted as true the testimony of the petitioner's trial attorney, Ignal. The court stated: ‘[Ignal] clearly saw all of the problems with this case, and they all spelled the word ‘‘immigration.'' From day one, I think, he was alerted to this and did everything he could, from what I can see, to try to avert the ultimate result.' The court found that Ignal was well aware of the adverse consequences of the pleas insofar as they involved deportation, and that he had thoroughly discussed that issue with the petitioner. The court rejected the claim of ineffective assistance of counsel. Later, the court granted the petitioner's petition for certification to appeal.'' (Footnotes added and omitted.) Id., 166-67. Following the habeas court's decision, in accordance with the September 2, 2009 decision of the United States Immigration Court (immigration court), the petitioner was deported to Haiti on April 15, 2011.[7] Id., 169.

         The petitioner appealed to the Appellate Court on May 4, 2011, claiming that the judgment of the habeas court ‘‘should be overturned because, pursuant to Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), [Ignal's performance] was deficient in that he failed to advise him, prior to entering the plea agreement, ‘that his [assault] conviction would make him subject to automatic deportation.' '' St. Juste v. Commissioner of Correction, supra, 155 Conn.App. 167-68. The Appellate Court did not, however, reach the merits of the petitioner's ineffective assistance of counsel claim because it concluded that the appeal should be dismissed as moot. Id., 181. The Appellate Court cited State v. Aquino, 279 Conn. 293, 901 A.2d 1194 (2006), and Quiroga v. Commissioner of Correction, 149 Conn.App. 168, 87 A.3d 1171, cert. denied, 311 Conn. 950, 91 A.3d 462 (2014), for the proposition that a court cannot grant practical relief unless there is evidence that the challenged decision is the exclusive basis for the deportation. St. Juste v. Commissioner of Correction, supra, 172. These circumstances led the Appellate Court ‘‘to a consideration of whether, in accordance with the analysis in Aquino and Quiroga, there is any evidence in the record to suggest that, in the absence of the guilty plea to the assault charge, the petitioner would be allowed to reenter this country or become a citizen.'' Id., 174.

         The Appellate Court observed that the ‘‘record reflects, and the petitioner does not dispute, that at the time that he was alleged to have committed the offenses for which he pleaded guilty-assault in the second degree and possession of a sawed-off shotgun-he was serving a period of probation resulting from an earlier conviction [of] threatening in the second degree in violation of . . . § 53a-62. Neither the record nor the parties have shed light on the subdivision of the statute under which the petitioner was convicted. As a result of the threatening conviction, the petitioner was sentenced to a suspended term of imprisonment of eleven months, with two years of probation. The record does not divulge facts concerning the threatening conviction. The parties, however, are in agreement that the petitioner's conviction resulted from a guilty plea, and that the incident underlying the offense occurred in 2006, when the petitioner was eighteen years of age.'' Id.

         The Appellate Court then agreed with the commissioner's argument that the defendant's conviction of threatening in the second degree constituted a crime of moral turpitude under provisions of the immigration act ‘‘that bar aliens from lawful readmission to the United States following their conviction of a crime involving moral turpitude. See 8 U.S.C. § 1182 (a) (2) (A) (i) (l) [2012] (unless statutory exception applies, aliens seeking readmission into United States are ineligible for visas or admission if they have been convicted of crimes involving moral turpitude); 8 U.S.C. § 1101 (a) (13) (C) (v) [2012] (aliens who have committed crimes of moral turpitude and attempt to reenter United States are deemed aliens seeking readmission).''[8] (Footnote omitted.) St. Juste v. Commissioner of Correction, supra, 155 Conn.App. 174-75. Applying a categorical analysis employed by the Second Circuit in Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir. 2001), [9] the Appellate Court explained that all three applicable subdivisions of the threatening in the second degree statute necessarily involve ‘‘the type of conduct and mental state that is characteristic of crimes involving moral turpitude.'' St. Juste v. Commissioner of Correction, supra, 181. Specifically, the Appellate Court relied on the definition of the term ‘‘threat'' in our opinion in State v. Cook, 287 Conn. 237, 257 n.14, 947 A.2d 307, cert. denied, 555 U.S. 970, 129 S.Ct. 464, 172 L.Ed.2d 328 (2008), and federal case law from the United States Courts of Appeals for the First, Fifth, Eighth, and Ninth Circuits holding that intent and recklessness are mental states that would support a conclusion that a crime is one of moral turpitude. St. Juste v. Commissioner of Correction, supra, 179-80. The Appellate Court concluded, therefore, that the guilty plea underlying the petitioner's conviction of assault in the second degree was not the only impediment to his reentry into the United States. Id., 181. Accordingly, the Appellate Court rendered judgment dismissing the petitioner's appeal as moot ‘‘because any relief we could afford him in connection with the assault conviction underlying his petition for a writ of habeas corpus would not have any effect on his ability lawfully to reenter this country or to become a citizen.'' Id. This certified appeal followed. See footnote 2 of this opinion.

         On appeal to this court, the petitioner claims that the Appellate Court improperly concluded that threatening in the second degree constitutes a crime of moral turpitude. Specifically, the petitioner contends that, because the statute underlying that offense is divisible, the Appellate Court should have applied the modified categorical approach to determine the particular subdivision of § 53a-62 (a) under which the petitioner pleaded guilty. Applying the modified categorical approach, the petitioner argues that the record demonstrates that he pleaded guilty to threatening in the second degree under § 53a-62 (a) (3), which is not a crime of moral turpitude because it requires proof of recklessness, and not § 53a-62 (a) (1), which requires proof of intent.

         In response, the commissioner argues that the Appellate Court properly applied the categorical approach to determine that threatening in the second degree in violation of § 53a-62 (a) constitutes a crime of moral turpitude under any of the statute's three subdivisions. Alternatively, the commissioner argues that, even under the modified categorical approach, the petitioner's threatening conviction constituted a crime of moral turpitude because that approach, properly applied, identifies § 53a-62 (a) (1), which requires an intentional mental state, as the subdivision underlying the petitioner's conviction. We, however, agree with the petitioner and conclude that § 53a-62 (a) is divisible, with offenses requiring recklessness under subdivision (3) not presenting crimes of moral turpitude under Second Circuit case law. Applying the modified categorical approach to the record before us, we are unable to ascertain which subdivision of § 53a-62 (a) formed the basis of the petitioner's conviction. Because we cannot determine from the record whether the petitioner's conviction under that statute constitutes a crime of moral turpitude, we conclude that the Appellate Court improperly dismissed the habeas appeal as moot insofar as the petitioner's challenged assault conviction gives rise to a reasonable possibility of prejudicial collateral consequences.

         It is well settled that ‘‘[a] case is considered moot if [the] court cannot grant the [litigant] any practical relief through its disposition of the merits . . . . Under such circumstances, the court would merely be rendering an advisory opinion, instead of adjudicating an actual, justiciable controversy. . . . Because mootness implicates the court's subject matter jurisdiction, it raises a question of law subject to plenary review.'' (Citations omitted; internal quotation marks omitted.) State v. Jerzy G., 326 Conn. 206, 213, 162 A.3d 692 (2017).

         The collateral consequences doctrine is an exception to the traditional direct injury requirement of mootness. Specifically, ‘‘[w]e have determined that a controversy continues to exist . . . if the actual injury suffered by the litigant potentially gives rise to a collateral injury from which the court can grant relief.'' State v. McEl-veen, 261 Conn. 198, 205, 802 A.2d 74 (2002); see also State v. Jerzy G., supra, 326 Conn. 213-14. ‘‘[F]or a litigant to invoke successfully the collateral consequences doctrine, the ...


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