Argued
April 11, 2018
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, Sferrazza, J.; judgment denying the petition;
thereafter, the court denied the petition for certification
to appeal, and the petitioner appealed to this court. Appeal
dismissed.
Kinga
A. Kostaniak, assigned counsel, for the appellant
(petitioner).
Sarah
Hanna, assistant state's attorney, with whom, on the
brief, were David S. Shepack, state's attorney, and Kelly
A. Masi, senior assistant state's attorney, for the
appellee (respondent).
DiPentima, C. J., and Alvord and Mihalakos, Js.
OPINION
MIHALAKOS, J.
The
petitioner, Noel Chance, appeals following the denial of his
petition for certification to appeal from the judgment of the
habeas court denying his second amended 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
second amended petition, and (2) improperly concluded that he
failed to establish that his trial counsel rendered
ineffective assistance. We conclude that the habeas court did
not abuse its discretion in denying the petition for
certification to appeal and, accordingly, dismiss the
petitioner's appeal.
The
following facts and procedural history are relevant to our
disposition of the petitioner's appeal. This court's
decision in the petitioner's direct appeal in State
v. Chance, 147 Conn.App. 598, 83 A.3d 703,
cert. denied, 311 Conn. 932, 87 A.3d 580 (2014), sets forth
the following facts. ‘‘From the spring of 2006
through the summer of 2007, the [petitioner] regularly drove
around rural areas of Litchfield County in his pickup truck
with his black Labrador retrievers and followed female
joggers. . . . After receiving complaints, police officers
talked to the [petitioner] on three separate occasions and
warned him that his conduct was alarming female joggers. On
March 30, 2007, after receiving one witness' complaint
and determining that the license plate number the witness
provided was registered to the [petitioner], Troopers Jason
Uliano and Cono D'Elia contacted the [petitioner]. When
the troopers informed the [petitioner] that his actions were
alarming female joggers, the [petitioner] indicated that he
understood and said that ‘he would drive somewhere
else, he wouldn't do that anymore.' . . .
‘‘On
August 11, 2007, the five foot tall, ninety pound, fourteen
year old victim in this case was jogging on a secluded road
in Litchfield.[1] The [petitioner], who was driving in his
truck with his dog, started following the victim. The
[petitioner] slowed down and asked her if she wanted a ride.
When she refused, the [petitioner] stopped his truck on the
side of the road, exited his truck, and chased her. The
[petitioner] grabbed her by her ponytail causing her to fall
face down on the side of the road. The [petitioner] then
engaged in a struggle with the victim that, according to
testimony, lasted approximately five minutes. The
[petitioner] wrapped his arms around her, touching her
breasts, and tried to pick her up. The victim fought back and
screamed. The [petitioner] covered her mouth to suppress her
screams, told her to shut up, and attempted to pick her up.
The victim began ‘heaving,' unable to catch her
breath. The [petitioner] released the victim, backed away,
and asked her if she was okay. The victim responded,
‘just leave,' and, ‘please leave.' When
the [petitioner] turned and walked toward his truck, the
victim ran into a wooded area and hid. The victim attempted
to call her mother from her cell phone, but was unable to
reach her. She then called 911. State troopers arrived at the
scene and aided the victim.''[2] (Footnote in original.)
Id., 601-604.
The
state charged the petitioner with kidnapping in the first
degree in violation of General Statutes § 53a-92 (a) (2)
(A); kidnapping in the second degree in violation of General
Statutes § 53a-94; attempt to commit kidnapping in the
second degree in violation of General Statutes §§
53a-94 and 53a-49 (a) (2); unlawful restraint in the first
degree in violation of General Statutes § 53a-95; and
two counts of risk of injury to a child in violation of
General Statutes § 53-21 (a) (1) and (2), respectively.
See id., 604. The petitioner was not charged with
assaulting the victim.
A four
day jury trial began on August 5, 2008. Following the close
of evidence, the trial judge met with the petitioner's
trial counsel, Walter D. Hussey, and the prosecutor for the
purpose of crafting an appropriate kidnapping instruction
that incorporated State v. Salamon, 287
Conn. 509, 949 A.2d 1092 (2008), [3] which had been decided by
our Supreme Court one month prior to the petitioner's
criminal trial. The petitioner's trial counsel and the
prosecutor agreed to a kidnapping instruction comprised of
language taken directly from Salamon. See
id., 546, 548, 550. That instruction provided in
relevant part: ‘‘If you find that the
[petitioner's] restraint of the victim was merely
incidental to the [petitioner's] commission of another
crime against the victim, that is, assault, then you must
find the [petitioner] not guilty of the crime of kidnapping.
. . . The determination of whether an assault took place is
for you, the jury, to decide. . . . If you find that an
assault took place, then you must determine whether the
restraint was incidental to that assault. In making that
determination, you must consider the various relevant
[Salamon] factors. . . .''
‘‘The
jury found the [petitioner] guilty of kidnapping in the
second degree, attempted kidnapping in the second degree,
unlawful restraint in the first degree, and risk of injury to
a child [in violation of § 53-21 (a) (1)].[4]The trial court
merged the [petitioner]'s conviction . . . [of] attempted
kidnapping in the second degree, with his conviction . . .
[of] kidnapping in the second degree. On October 17, 2008,
the court imposed a total effective sentence of twenty years
of incarceration, execution suspended after eight and
one-half years, followed by five years of probation with
special conditions.'' (Footnote added.) State
v. Chance, supra, 147 Conn.App. 604.
This court affirmed in part and reversed in part the judgment
of the trial court on direct appeal.[5] See id., 601.
On May
16, 2013, the self-represented petitioner filed a petition
for a writ of habeas corpus alleging that his trial counsel
had rendered ineffective assistance in several respects. On
August 26, 2016, the petitioner, represented by appointed
counsel, filed the operative second amended petition,
claiming that trial counsel rendered ineffective assistance
in that he (1) ‘‘acquiesced to improper jury
instructions regarding kidnapping, in accordance with the
relatively new law asstated in [Salamon]'';
(2) failed to file a motion to suppress incriminating
statements that the petitioner made to law enforcement prior
to receiving a Miranda[6] warning; and (3) failed to file a
motion to suppress evidence obtained from the seizure of his
pickup truck.
The
habeas trial was held on September 9, 2016. The habeas court
heard testimony from the petitioner, Attorney Hussey and
Trooper D'Elia. The petitioner did not present any expert
testimony in support of his claims. In a memorandum of
decision filed on November 10, 2016, the habeas court denied
the petitioner's second amended petition, determining
that the petitioner had failed to establish deficient
performance or prejudice as to each of his claims. On
November 21, 2016, the habeas court ...