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Roger B. v. Commissioner of Correction

Court of Appeals of Connecticut

June 25, 2019

ROGER B.
v.
COMMISSIONER OF CORRECTION [*]

          Argued March 21, 2018, and January 8, 2019 [**]

         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, Cobb, J.; judgment denying the petition; thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court, which reversed the judgment in part and remanded the case for further proceedings; subsequently, the matter was tried to the court, Sferrazza, J.; judgment denying the petition, from which the petitioner, on the granting of certification, appealed to this court; thereafter, the court, Sferrazza, J., issued an articulation of its decision. Affirmed.

          Deren Manasevit, assigned counsel, for the appellant (petitioner).

          James M. Ralls, assistant state's attorney, with whom, on the brief, were David S. Shepack, state's attorney, and Tamara Grosso, assistant state's attorney, for the appellee (respondent).

          Lavine, Bright and Pellegrino, Js.

          OPINION

          LAVINE, J.

         The primary issue in this appeal from the denial of the amended petition for a writ of habeas corpus filed by the petitioner, Roger B., is whether he was denied the effective assistance of counsel at his criminal trial because trial counsel failed to assert a statute of limitations affirmative defense to the criminal charges against him. We conclude that no such deprivation occurred because the petitioner failed to carry his burden to prevail on an ineffective assistance of counsel claim pursuant to the two part test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To succeed under Strickland, a petitioner must present evidence that "(1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance." (Emphasis in original.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008). The petitioner bears "the burden to prove that his counsel's performance was objectively unreasonable." Eubanks v. Commissioner of Correction, 329 Conn. 584, 598, 188 A.3d 702 (2018). "[A]ctual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice." (Internal quotation marks omitted.) Fisher v. Commissioner of Correction, 45 Conn.App. 362, 366-67, 696 A.2d 371, cert, denied, 242 Conn. 911, 697 A.2d 364 (1997). In the present case, the petitioner not only failed to prove that his counsel's performance was deficient but also failed to demonstrate that he was prejudiced by the alleged deficient performance.[1] A detailed review of this case's tangled procedural history is required to place this decision in its proper context.

         This is the petitioner's second appeal challenging the denial of his amended petition for a writ of habeas corpus. In Roger B. v. Commissioner of Correction, 157 Conn.App. 265, 278-80, 116 A.3d 343 (2015), this court reversed in part the judgment of the habeas court, Cobb, J., and remanded the case with direction to hold a hearing in accordance with State v. Crawford, 202 Conn. 443, 521 A.2d 1034 (1987), regarding the petitioner's claim that his trial counsel rendered ineffective assistance by failing to assert a statute of limitations affirmative defense with respect to the eighteen month delay between the issuance and execution of the warrant for the petitioner's arrest. On remand, the second habeas court, Sferrazza, J., denied the amended petition, concluding that the petitioner failed to establish that his trial counsel rendered ineffective assistance. Central to its conclusion was the court's determination that Crawford did not apply because the applicable statute of limitations, General Statutes § 54-193a, [2] had been tolled by General Statutes § 54-193 (c), now § 54-193 (d), [3] as a result of the petitioner's relocation outside Connecticut. In a subsequent articulation, the second habeas court found that the petitioner was elusive, unavailable, and unapproachable when he left Connecticut and that he had failed to present evidence that the state could not demonstrate that the delay in executing the warrant was reasonable.

         In this certified appeal, the petitioner claims that the second habeas court improperly (1) determined that § 54-193 (d) tolled the statute of limitations in analyzing whether trial counsel rendered ineffective assistance by failing to raise a statute of limitations affirmative defense, (2) concluded that the petitioner was elusive, and unavailable to and unapproachable by the police, (3) concluded that he failed to demonstrate that the state would have been unable to show that the police had acted reasonably in executing the warrant, and (4) rejected his claim of ineffective assistance of counsel. We agree with the petitioner's first two claims but reject the latter two. We, therefore, affirm the judgment of the second habeas court albeit on different grounds.[4]

         On direct appeal from the petitioner's underlying criminal conviction, our Supreme Court concluded that the jury reasonably could have found the following facts on the basis of the evidence presented. See State v. Roger B., 297 Conn. 607, 609, 999 A.2d 752 (2010) (affirming conviction of sexual assault and risk of injury to child). In 1995, the petitioner lived with his girlfriend and her three children, two girls and a boy. Id., 609. The girls shared a bedroom, and almost nightly, the petitioner awakened the older of the two and took her to the living room where he sexually assaulted her. Id. In 1996, the petitioner, his girlfriend, and her children moved to a new home. Id., 610. In the new home, the petitioner awakened the younger girl, took her to another room, and sexually assaulted her. Id.

         The petitioner's girlfriend was institutionalized in the fall of 1999, and the petitioner became the sole caretaker of the children until Department of Children and Families (department) personnel removed them because the petitioner was not one of the children's relatives. Id. In time, the girls were placed together in a foster home. Id. A few months thereafter, the older girl disclosed to her boyfriend, and later to her foster mother, that the petitioner had abused her. Id. When the younger girl told her foster mother that the petitioner had abused her as well, the foster mother reported the allegations to department personnel. Id.

         Department personnel reported the girls' allegations of abuse to the New Milford Police Department (police). Roger B. v. Commissioner of Correction, supra, 157 Conn.App. 272. On July 17, 2000, Detective James M. Mullin watched a forensic interview of the girls. Id. On August 31, 2000, the petitioner gave Mullin a statement and permission for the police to search his apartment and storage unit. Id. The petitioner left Connecticut approximately five months after he gave the statement to Mullin. Id.

         The police completed their investigation in 2000 and discovered no additional evidence between 2000 and 2005. Id. On July 6, 2005, the police obtained a warrant to arrest the petitioner. Id. When the petitioner left Connecticut, he moved to Indiana, where he had several addresses, including a post office box. He later moved to Alabama where United States marshals found him in November, 2006. Id., 272-73. The state's attorney authorized the petitioner's extradition from Alabama, and he was transported to New York. Id. Mullin executed the arrest warrant on January 24, 2007. Id., 273. The petitioner was charged in a substitute information with offenses that occurred on various dates between October 1, 1995, and February 1, 2000. A jury found the petitioner guilty of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), two counts of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A), and three counts of risk of injury to a child in violation of General Statutes § 53-21 (2). In April, 2008, the trial court, Sheldon, J., sentenced the petitioner to a total effective term of twenty-nine years in prison, execution suspended after twenty-three years, and thirty years of probation. State v. Roger B., supra, 297 Conn. 610-11. The petitioner's conviction was affirmed on direct appeal. Id., 621.

         The petitioner filed a petition for a writ of habeas corpus on August 21, 2008, and an amended petition on August 25, 2011. Roger B. v. Commissioner of Correction, supra, 157 Conn. 268-69. In his amended petition, the petitioner alleged that his trial counsel, Christopher Cosgrove, had rendered ineffective assistance by failing to assert a statute of limitations affirmative defense, among other things. Id., 269. The habeas court held an evidentiary hearing on the amended petition and issued a memorandum of decision on August 16, 2013. Id. The habeas court determined that the statute of limitations at issue was § 54-193a, which contains a five year statute of limitations. See footnote 2 of this opinion.

         With respect to the performance prong of Strickland and the statute of limitations affirmative defense, the habeas court quoted State v. Crawford, supra, 202 Conn. 450, for the proposition that "[w]hen an arrest warrant has been issued, and the prosecutorial official has promptly delivered it to a proper officer for service, he has done all he can under our existing law to initiate prosecution and to set in motion the machinery that will provide notice to the accused of the charges against him . . . ." (Internal quotation marks omitted.) Roger B. v. Commissioner of Correction, supra, 157 Conn.App. 276. The habeas court found that Cosgrove had “reviewed the statute of limitations issue when he received the case, did the math, and determined that the warrant was executed within the applicable statute of limitations period. Accordingly, he did not act deficiently in not filing a motion to dismiss the charges. . .”

         As to the prejudice prong of Strickland v. Washington, supra, 466 U.S. 687, the habeas court "found that the petitioner [had] failed to provide any credible evidence to establish that he was prejudiced at trial by [Cosgrove's] failure to challenge the warrant as stale or the delay in executing it." (Internal quotation marks omitted.) Roger B. v. Commissioner of Correction, supra, 157 Conn.App. 275. The habeas court, therefore, denied the petition for a writ of habeas corpus and, thereafter, denied a petition for certification to appeal. Id., 267.

         The petitioner filed his first habeas appeal on September 30, 2013; id., 269; claiming that the habeas court had abused its discretion by denying his petition for certification to appeal; id., 267; and improperly had concluded that Cosgrove had not rendered ineffective assistance because the habeas court "failed to address the postwarrant delay [in executing the warrant], finding only that [trial counsel] reasonably calculated that the warrant had been issued within the period of limitation." (Internal quotation marks omitted.) Id., 276. The petitioner argued that Cosgrove's failure to assert a statute of limitations affirmative defense constituted ineffective assistance pursuant to State v. Crawford, supra, 202 Conn. 443, and State v. All, 233 Conn. 403, 660 A.2d 337 (1995). Roger B. v. Commissioner of Correction, supra, 157 Conn.App. 271. Moreover, he contended that the issuance of the warrant for his arrest did not satisfy the statute of limitations because the warrant was not executed without unreasonable delay. Id. Although the warrant had been issued on July 6, 2005, it was not executed until January 24, 2007. See id.

         The petitioner noted that our Supreme Court has held that the "timely issuance of the arrest warrant [satisfied] the statute of limitations in the absence of an evidentiary showing of unreasonable delay in its service upon the defendant." State v. Crawford, supra, 202 Conn. 452.[5] In All, our Supreme Court held that "in order to toll the statute of limitations, an arrest warrant, when issued within the limitations of § 54-193 (b), must be executed without unreasonable delay." State v. All, supra, 233 Conn. 415. The petitioner further contended that Cosgrove's failure to assert an affirmative defense rendered his performance deficient and that, if the statute of limitations defense had been asserted, the outcome of the criminal trial would have been different. Roger B. v. Commissioner of Correction, supra, 157 Conn.App. 272.

         This court agreed with the petitioner that the habeas court's analysis under § 54-193 (c) was improper, as it failed to consider whether the delay in serving the warrant after it was issued was unreasonable. The habeas court's "discussion of the petitioner's claim that [Cos-grove] was ineffective in failing to assert a statute of limitations affirmative defense was limited to the issuance of the warrant within the statute of limitations. Although the habeas court discussed the delay in execution of the warrant as it affected the petitioner's defense, the court focused on Cosgrove's testimony that no witnesses went missing and that the witnesses were able to recall the events in concluding that the petitioner's defense had not been hindered." Id., 278. This court stated that a proper resolution of the petitioner's claim under State v. Crawford, supra, 202 Conn. 443, and State v. Ali, supra, 233 Conn. 403, required the habeas court to consider whether "there was a reasonable probability that the petitioner would have succeeded on a statute of limitations affirmative defense that was based on unreasonable delay in executing the warrant. Such analysis would include considering whether the petitioner had [put] forth evidence to suggest that [he] was not elusive, was available and was readily approachable, such that the burden [would have] shift[ed] to the state to prove that the delay in executing the warrant was not unreasonable. State v. Woodtke, [130 Conn.App. 734');">130 Conn.App. 734, 740, 25 A.3d 699 (2011)]; see Gonzalez v. Commissioner of Correction, [122 Conn.App. 271');">122 Conn.App. 271, 286 and n.6, 999 A.2d 781, cert, denied, 298 Conn. 913, 4 A.3d 831 (2010)] . . . ." (Emphasis added; internal quotation marks omitted.) Roger B. v. Commissioner of Correction, supra, 157 Conn.App. 278-79.

         In addition, this court concluded that the record was inadequate to review the alternative ground proffered by the respondent, the Commissioner of Correction, to affirm the habeas court's judgment, which was that trial counsel was not ineffective in failing to challenge the eighteen month delay in the service of the warrant "[b]ecause [the] petitioner's decision to flee the state tolled the statute of limitations," pursuant to § 54-193 (d) and State v. Ward, 306 Conn. 698, 711, 52 A.3d 591 (2012). Roger B. v. Commissioner of Correction, supra, 157 Conn.App. 279-80 n.11.[6] This court, therefore, reversed the judgment in part and remanded the case for a new hearing at which the petitioner could "present his claim that his trial counsel was ineffective for failing to raise a statute of limitations affirmative defense."[7]Id., 280. The respondent was not precluded from raising his alternative ground for affirmance on remand. Id., 280 n. 11.

         On remand, the petitioner filed a pretrial brief in which he set forth the evidence adduced at the first habeas trial, "suggesting] that [he] was not elusive, was available and was readily approachable," and argued that, given such evidence, the respondent bore the burden of proving that the delay in executing the warrant was not unreasonable. (Internal quotation marks omitted.)

         The second habeas court held a hearing on August 29, 2016, receiving evidence solely on the claim that Cosgrove had rendered ineffective assistance by failing to pursue a statute of limitations affirmative defense to the criminal charges against the petitioner.[8] The court issued a memorandum of decision on November 23, 2016, in which it denied the petitioner's amended petition. Thereafter, the court granted the petition for certification to appeal.

         The petitioner appealed, claiming that in analyzing his ineffective assistance of counsel claim, the second habeas court (1) incorrectly determined that § 54-193 (d) tolled the statute of limitations and (2) improperly rejected his claim of ineffective assistance of counsel.[9]The appeal initially was argued on March 21, 2018. On July 31, 2018, we sua sponte issued an articulation order stating that "[t]his court retains jurisdiction over this appeal and the case is remanded to [the second habeas court] for further factual findings on the basis of the existing record. See Barlow v. Commissioner of Correction, 328 Conn. 610, 614-15, 182 A.3d 78 (2018);[10] Practice Book § 60-2 (8). In particular, the court is to make factual findings related to the petitioner's statute of limitations defense as discussed by this court in Roger B. v. Commissioner of Correction, [supra, 157 Conn.App. 278-79] . . . including whether the petitioner was not elusive, was available and was readily approachable, and if so, whether the delay in executing the warrant was unreasonable."

         The second habeas court issued its articulation on August 7, 2018, finding in part that the petitioner knew of the sexual misconduct complaints against him when he left Connecticut and that he was elusive, unavailable, and unapproachable by Connecticut law enforcement, except through extradition. Moreover, the petitioner failed to demonstrate that a reasonable likelihood exists that the state would have been unable to show that the police acted reasonably and did not generate unjustifiable delay in executing the warrant.

         On August 10, 2018, the petitioner filed a motion to correct an allegedly erroneous factual finding in the articulation and a motion for additional briefing on the second habeas court's formulation and application of the law. We denied the petitioner's motion to correct, but granted the motion for supplemental briefing. After the parties submitted supplemental briefs, we heard additional argument from the parties on January 8, 2019. Although we agree with the petitioner that the second habeas court improperly determined that the petitioner's claim was controlled by § 54-193 (d), rather than Crawford, we conclude that the court properly determined that Cosgrove's legal representation was not deficient, and that the petitioner failed to prove prejudice in that he failed to present evidence that it was reasonably likely that the state could not present evidence that the delay in executing the warrant was reasonable.

         I

         STATUTE OF LIMITATIONS AFFIRMATIVE DEFENSE

         On appeal, the petitioner claims that the second habeas court improperly (1) determined that § 54-193 (d) tolled the statute of limitations in analyzing whether Cosgrove rendered ineffective assistance by failing to raise a statute of limitations affirmative defense, (2) concluded that the petitioner was elusive, unavailable, and unapproachable by the police, and (3) concluded that he failed to show that it was unlikely that the state would have been unable to prove that the police had acted reasonably in executing the warrant. We agree with the petitioner's first two claims, but not his third.

         "Our standard of review of a habeas court's judgment on ineffective assistance of counsel claims is well settled. The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . The application of the habeas court's factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review. . . . Therefore, our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary." (Citation omitted; internal quotation marks omitted.) Sanders v. Commissioner of Correction, 169 Conn.App. 813, 822, 153 A, 3d8 (2016), cert, denied, 325 Conn. 904, 156 A.3d 536 (2017).

         "To the extent that we are required to review conclusions of law or the interpretation of the relevant statute by the [habeas] court, we engage in plenary review." Location Realty, Inc. v. Colaccino, 287 Conn. 706, 717, 949 A.2d 1189 (2008); see also Washington v. Commissioner of Correction, 287 Conn. 792, 799-800, 950 A.2d 1220 (2008). "[W]hen the plaintiff asserts that the facts found were insufficient to support the court's legal conclusion, th[e] issue presents a mixed question of law and fact to which we apply plenary review. . . . We must therefore decide whether the court's conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) State v. Derks, 155 Conn.App. 87, 92, 108 A.3d 1157, cert, denied, 315 Conn. 930, 110 A.3d 432 (2015).

         The second habeas court issued a memorandum of decision following the remand hearing, in which it made the following findings of fact. "On July 6, 2005, an arrest warrant issued authorizing the apprehension of the petitioner for having sexually assaulted his girlfriend's two young daughters . . . from October, 1995, to February, 2000. The pertinent statute of limitations was ... § 54-193a, which permitted prosecution for such crimes within a period of five years from the time when the victims notified law enforcement officials of the . . . assaults. Unquestionably, the arrest warrant issued within the designated period of time. The [police] promulgated a wanted persons notice regarding the petitioner on July 7, 2005, one day after the judicial authority issued the arrest warrant." The court also found that approximately four years before the arrest warrant was issued, the petitioner had left Connecticut. United States marshals located him in Alabama, where he was apprehended on December 11, 2006. The police returned him to Connecticut and executed the arrest warrant on January 24, 2007.

         The court stated: "[O]bviously, the date of arrest, January 24, 2007, was beyond the five year time limit afforded by § 54-193a for offenses committed between 1995 and 2000." "Cosgrove recognized a possible violation of the statute of limitations. He researched that issue and discussed the question with appellate lawyers for the Office of the Chief Public Defender. As a result, [Cosgrove] opined that, without proof of actual prejudice to the petitioner caused by the delay, no viable statute of limitations affirmative ...


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