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Doan v. Commissioner of Correction

Appellate Court of Connecticut

October 1, 2019

Cong DOAN
v.
COMMISSIONER OF CORRECTION

         Argued April 16, 2019

         Appeal from the Superior Court, Judicial District of Tolland, 2017 WL 5203235, Sferrazza, J.

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          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.

Page 466

          [193 Conn.App. 265] 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 [193 Conn.App. 266] 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

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what had happened and called the police. Thereafter, the petitioner was apprehended. He confessed to the police, told the [193 Conn.App. 267] 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. [193 Conn.App. 268] 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 ...


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