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 . . . ...