Argued
April 16, 2019
Appeal
from the Superior Court, Judicial District of Tolland, 2017
WL 5203235, Sferrazza, J.
Page 463
[Copyrighted Material Omitted]
Page 464
[Copyrighted Material Omitted]
Page 465
James
B. Streeto, senior assistant public defender, for the
appellant (petitioner).
Nancy
L. Chupak, senior assistant states attorney, with whom, on
the brief, were Gail P. Hardy, states attorney, and Angela
R. Macchiarullo, senior assistant states 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 homeowners thirteen year old son came
home. As the son entered the house, the petitioner held the
female homeowners 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
Page 467
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 petitioners 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 petitioners decision to try to withdraw his guilty plea.
Counsels 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 ...