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Doan v. Commissioner of Correction

Court of Appeals of Connecticut

October 1, 2019

CONG DOAN
v.
COMMISSIONER OF CORRECTION

          Argued April 16, 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, Sferrazza, J.; judgment denying the petition; thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court. Affirmed.

          James B. Streeto, senior assistant public defender, for the appellant (petitioner).

          Nancy L. Chupak, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Angela R. Macchiarullo, senior assistant state’s attorney, for the appellee (respondent).

          Elgo, Bright and Beach, Js.

          OPINION

          ELGO, J.

         The petitioner, Cong Doan, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court (1) abused its discretion in denying his petition for certification to appeal and (2) improperly concluded that he was not denied the effective assistance of trial counsel. We agree that the court abused its discretion in denying the petition for certification to appeal. Nonetheless, we conclude that the court properly determined that the petitioner was not denied the effective assistance of trial counsel. We, therefore, affirm the judgment of the habeas court.

         The record reveals the following relevant facts and procedural history. On November 10, 2011, the petitioner went to the home of a family for whom he had previously completed flooring work. The petitioner approached the front door numerous times, pretending that his car broke down and that he needed to use a telephone. Finally, on approximately the fourth time he approached the house, when the female homeowner opened the door, the petitioner stormed past her and shut the door behind him. He then grabbed the female homeowner and placed her in a chokehold. He told her that he was sorry and that she should follow his instructions. She tried to pull away and the struggle caused them to fall to the floor. The petitioner asked her where she kept her money. After retrieving envelopes of cash, the petitioner brought the female homeowner upstairs to the master bedroom, where he tied her hands with rope.

         Subsequently, the homeowner’s thirteen year old son came home. As the son entered the house, the petitioner held the female homeowner’s mouth shut with his hand and told her not to make any noise. The son went upstairs and found his mother with her hands bound. The petitioner then apologized to the son and tied him up so that his hands were tied behind his back. Next, the petitioner forced the female homeowner to sign a contract to make it look like she owed him money. He also forced her to write out several nonsequential checks in different amounts.

         After putting duct tape over their mouths, the petitioner forced the female homeowner and the son into a closet. He told them that he was going to cash the checks at a bank and return to intercept the male homeowner in order to tie him up as well. Thereafter, the petitioner put the female homeowner and the son in the basement. He tied their feet and told them not to do anything foolish. At some point, the petitioner removed the duct tape from their mouths. The female homeowner was then able to convince the petitioner that she should accompany him to the bank. The petitioner, the female homeowner, and the son went to the bank where the female homeowner attempted to withdraw $20, 000. Because she was permitted to withdraw only $10, 000 in cash, the female homeowner also made out a check for $10, 000 to the petitioner. The petitioner took the cash and the check and asked the female homeowner to drive him to Vernon, where she dropped him off.

         The female homeowner and the son then returned home. They told the male homeowner what had happened and called the police. Thereafter, the petitioner was apprehended. He confessed to the police, told the male homeowner that he was sorry, and offered to be the homeowners’ slave.

         On June 3, 2013, the petitioner entered a guilty plea to home invasion in violation of General Statutes § 53a-100aa (a) (1) and two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B). Pursuant to the transcript of the plea hearing, the petitioner agreed to a sentence of not less than ten years and up to twenty-five years to serve.

         On June 17, 2013, counsel met with the petitioner at MacDougall-Walker Correctional Institution in Suffield, where the petitioner was being held. At the meeting, the petitioner raised the possibility of withdrawing his guilty plea. In response, counsel drafted a chart in order to show the petitioner the likely outcomes associated with filing that motion.[1] The petitioner also asked counsel to withdraw his representation.

         Subsequently, counsel sent the petitioner a three page letter dated July 2, 2013, in which counsel advised the petitioner that he had filed a motion to withdraw his representation, but cautioned the petitioner that the court may not grant the motion and permit him to withdraw from the case. Counsel also addressed the petitioner’s attempt to file an appearance in order to begin representing himself so that he could withdraw his guilty plea. Counsel explained that it was unlikely that the sentencing judge would allow the petitioner to represent himself or allow him to withdraw his guilty plea. Counsel also explained the repercussions of the petitioner’s decision to try to withdraw his guilty plea. Counsel’s letter stated in part that ‘‘[the judge] will . . . consider your attempt to [withdraw your guilty plea] as an expression or indication that you are not fully or truly accepting full responsibility for what you did. This will probably cause her to consider imposing a harsher or increased sentence upon you whenever you are sentenced. While you may find this as unfair, in my experience over the past [twenty-six and one-half] years, judges and prosecutors tend to look poorly on defendants whom they see as trying to avoid responsibility or shift blame onto others or who they think are trying to manipulate or game the system. Although I do not believe that any of such negative factors apply to you, you should understand that others may tend to believe that they do by your effort to take back your guilty plea.’’

         In his letter, counsel also explained what sentence he believed the petitioner was facing with his guilty plea and what he could receive if he went to trial. Counsel stated that the sentencing judge had indicated that she intended to sentence the petitioner to ten to twelve years of imprisonment ‘‘based on the facts of [his] case and subject to her learning more about [the petitioner] and hearing more from [the] victims.’’ Counsel also stated that, if the petitioner were allowed to withdraw his guilty plea and proceed to trial, ‘‘[a] reasonable estimate of a prison term for a person convicted of home invasion after trial would start at a low of [twenty] years to serve and could easily and quickly get to a range of more than [twenty-five] years to serve in prison with another [ten] or [twenty] years suspended over the person’s head for a full [five] year probation term.’’

         On July 18, 2013, the petitioner appeared before the court, at which time his counsel explained that the petitioner had attempted to file an appearance in order to begin representing himself. The court ruled that the petitioner would not be permitted at this late stage in the proceedings to represent himself, but that he could direct counsel to file a motion to withdraw his guilty plea if he so wanted. After the petitioner expressed his desire to file a motion to withdraw his guilty plea, the court allowed the petitioner to make his argument orally. In his oral motion to withdraw his guilty plea, the petitioner asserted that he disagreed with the home invasion charge, that he felt as if he was ‘‘strong-armed’’ into pleading guilty, and that he and counsel never talked about building a case. In response, the court read portions of the transcript of the June 3, 2013 proceeding during which the petitioner was canvassed before pleading guilty. The court denied the petitioner’s oral motion on the ground that he did not present any ground that would allow the plea to be withdrawn. The court, however, stated that the petitioner could put his motion to withdraw in writing if he wanted to do so and have it filed through counsel.

         A sentencing hearing was held on August 15, 2013. The court began the hearing by addressing the petitioner’s written motion to withdraw his guilty plea, which the petitioner had filed with the court. Counsel represented that he had not seen the petitioner’s motion. Counsel stated that he did not believe that the petitioner was in ‘‘any way incompetent’’ but that he believed the petitioner was naive and ‘‘inexperienced in the law . . . .’’ He argued that he believed the petitioner was motivated ‘‘not by any avoidance of responsibility or shifting of blame, or foolish expressions of excuse, but he’s fixated on the notion of his family, and of the belief that somehow maybe things could be different so that although he knows he deserves to be punished substantially for what he did, he was hopeful that he could be punished less severely.’’ After hearing from the petitioner, the court denied the petitioner’s motion, concluding that he had not met his burden of establishing a valid reason for withdrawing his guilty plea.

         At the sentencing hearing, the petitioner’s counsel then presented the court with certain mitigation evidence, including a defense sentencing memorandum, a letter from the petitioner’s sister, and two letters from the petitioner’s children. Counsel also addressed the presentence investigation report (report) prepared by the Office of Adult Probation and made various corrections or clarifications to its contents. Additionally, in his sentencing argument, counsel acknowledged the petitioner’s remorse for what had transpired, and emphasized the petitioner’s circumstances and desperation at the time he committed the crime. Counsel described the petitioner’s course of action as an ‘‘artifice’’ and ‘‘absolute insanity, ’’ and he stated that the petitioner was ‘‘completely out of his mind, in duress of the circumstances that he found [himself] in . . . ...


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