Opinion
CV154007334
11-18-2019
Lacelles CLUE #372393 v. WARDEN, STATE PRISON
UNPUBLISHED OPINION
Hon. John M. Newson, Judge
1. Procedural History
After a trial to the Court in the Judicial District of Danbury, the petitioner was convicted of Home Invasion, General Statutes § 53a-100aa, robbery in the first degree, General Statutes § 53a-134(a)(3), assault of an elderly person in the third degree, General Statutes § 53a-61a(a)(1), and threatening in the second degree, General Statutes § 53a-62, under DBD-CR09-137088-S, and larceny in the fifth degree, General Statutes § 53a-125a, under DO3D-CR09-0137080-S. On March 29, 2011, the petitioner received a total effective of fourteen (14) years, suspended after ten (10) years, followed by ten (10) years of special parole. The convictions were affirmed on appeal. State v. Clue, 139 Conn.App. 189, 192-93, 55 A.3d 311, 313 (2012), cert. denied, 307 Conn. 946, 60 A.3d 738 (2013). The petitioner subsequently sought habeas relief, alleging ineffective assistance against Attorney Eugene Zingaro, who represented him before the trial court at all times relevant to these proceedings. On September 30, 2019, this Court issued a memorandum of decision granting the habeas petition, ordering the petitioner’s convictions to be vacated, and remanding the matter to the trial court for further proceedings. The respondent filed a timely appeal, and the petitioner filed the present motion pursuant to Practice Book § 61-11(e) to terminate the automatic stay.
Practice Book § 61-11. Stay of Execution in Noncriminal Cases, provides, in pertinent part:
II. Law and Discussion
Where a petitioner has been granted habeas relief and later seeks to terminate the automatic stay during the State’s appeal of the judgment, there are seven factors the Court must review. The first four Griffin factors are: 1. the likelihood that the appellant will prevail; 2. the irreparability of the injury to be suffered from immediate implementation of the agency order; 3. the effect of a stay upon other parties to the proceeding; and 4. the public interest involved. Griffin Hospital v. Commission on Hospitals and Health Care, 196 Conn. 451, 456, 493 A.2d 229 (1985). The three additional factors are: 5. the possibility that the petitioner will flee the jurisdiction; 6. whether the petitioner poses a danger to the public; and 7. the state’s interest in continuing custody and rehabilitation pending the final determination of guilt. Helmedach v. Warden, Superior Court judicial district of Tolland, Docket No. CV12-4005008 (Cobb, J., Aug. 26, 2015).
First Factor: Likelihood of the Appellant Prevailing
In the circumstances of the present case, this factor weighs heavily in favor of the petitioner. This Court listened to previously unheard testimony from two credible alibi witnesses that place the petitioner at a music studio during and after the time this crime was allegedly committed. While there is no dispute that the petitioner was found in possession of the laptop stolen from the victim just the day before, one of the alibi witnesses also places a person named Ricky Lee at the same music studio, on the same day and around the time of the crime, attempting to sell what was believed to be a stolen laptop. This raises the legitimate question of whether the petitioner may have come into possession of the laptop after the fact. Therefore, the Court finds this factor in favor of the petitioner.
Second Factor: The Irreparability of the Injury to be Suffered from Immediate Implementation of the Agency Order
The Court finds this factor to be a neutral one. The petitioner argues that a single additional day in prison after his convictions have been vacated represents irreparable harm to him. As of the time of this decision, he has served 8.5 years of the 10-year prison portion of the sentence imposed. On the other hand, the State argues that the petitioner has only served approximately half of his sentence, so this factor should weigh in their favor. It is apparently undisputed, however, that Federal authorities for some time now have had an immigration detainer lodged against the petitioner. The Court finds the detainer significant, because it means that the petitioner, even if released from State custody, would immediately be transferred to the custody and supervision of Federal immigration authorities. Therefore, the Court finds this factor to be a neutral one.
The State is factoring in consecutive sentences imposed on unrelated charges subsequent to the convictions at issue here. When considering only the sentence imposed in the present case, the petitioner has served at least 8.5 of the 10-year prison portion of this sentence.
Third Factor: The Effect of the Stay on Other Parties to the Proceeding
The main consideration here in a criminal case would be that of victims and witnesses to the crime. The victim in the present case died of unrelated causes even before underlying criminal trial, so there would be no direct impact upon her. As for the other witnesses involved, the impact upon them would be minimal, and only require them to testify as to their best memories of what occurred. While it is not lost upon the Court that eight or nine years is a very long time back to ask witnesses to recall things, this is not so uncommon in our system, especially in the habeas practice, to be considered anything more than a minimal inconvenience. The State expressed concern about difficulty with attempting to locate witnesses again due to the passage of time, but the Court finds that both parties would be equally impacted by that issue. This factor, therefore, weighs in favor of the petitioner.
Fourth Factor: The Public Interest Involved
The public obviously has a substantial interest in the finality of criminal cases. Much more important, however, is that criminal cases be resolved in a way that leaves the public and those involved with the confidence that our adversarial system has worked to a fair and just end. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ("The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result"). That did not happen in the present case, which would weight this factor in favor of the petitioner.
Fifth Factor: Likelihood that the Petitioner Will Flee the Jurisdiction
Again, the factor ultimately weighs in favor of the petitioner. First, it appears undisputed that he remained at liberty throughout the underlying criminal trial. The trial court, upon addressing the conditions of his bond, could address any specific restrictions necessary to ensure knowledge of his whereabouts. The petitioner’s wife and children also remain residents of Connecticut, lessening the possibility that he will flee. Finally, and ironically, the fact that there is a Federal immigration detainer against him also weighs in the petitioner’s favor. In the end, even if released from Connecticut incarceration, the petitioner will likely end up in the custody of the Federal government. If he does manage to obtain release into the community, then he will likely be under the supervision of both State and Federal authorities. So, this factor also weights in favor of the petitioner.
Sixth Factor: Whether the Petitioner Poses a Danger to the Public
Other than the present criminal conduct, there was no credible evidence presented that the petitioner poses a general danger to society. Although he did suffer another conviction subsequent to the present case, the specific facts of that matter were not provided to the Court. Again, it appears undisputed that he remained at liberty on bond while the underlying criminal charges were pending. Also undisputed appears to be the fact that he had no criminal history prior to the present convictions. Finally, the trial court will be at liberty, in fact it will be required, to take into account the safety of the public in setting the conditions of bond. See, General Statutes § 54-64a(a)(3) and Practice Book § 38-4(b). In the end, the Court finds that this factor, too, weighs in favor of the petitioner.
Seventh Factor: State’s Interest in Continuing Custody and Rehabilitation Pending the Final Determination of Case
Except in the most extreme where a petitioner has an exhaustive prior criminal history, this Court can imagine few instances where the State’s interest in continuing custody and rehabilitation on an individual would prevail where a court has determined that the convictions incarcerating that individual rest on constitutionally unstable ground. Further, given there is no evidence that the petitioner presented any disciplinary issues during the time he has been incarcerated, and the fact that he has now served more than 80% of the prison sentence imposed in this case, the State’s interest in continuing custody and rehabilitation is less important than the petitioner’s interest in release. This factor also weights in favor of the petitioner.
III. Conclusion
The petitioner’s motion to terminate the automatic stay is GRANTED.
(a) Automatic Stay of Execution
Except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment or order shall be automatically stayed until the time to file an appeal has expired. If an appeal is filed, such proceedings shall be stayed until the final determination of the cause. If the case goes to judgment on appeal, any stay thereafter shall be in accordance with Section 71-6 (motions for reconsideration), Section 84-3 (petitions for certification by the Connecticut Supreme Court), and Section 71-7 (petitions for certiorari by the United States Supreme Court) ...(d) Termination of Stay
In all cases not governed by subsection (c), termination of a stay may be sought in accordance with subsection (e) of this rule. If the judge who tried the case is of the opinion that (1) an extension to appeal is sought, or the appeal is filed, only for delay, or (2) the due administration of justice so requires, the judge may at any time, upon motion or sua sponte, order that the stay be terminated. Whether acting on a motion of a party or sua sponte, the judge shall hold a hearing prior to terminating the stay.(e) Motions to Terminate Stay
A motion to terminate a stay of execution filed before judgment is entered shall be filed with the trial court, and the judge who tried or presided over the matter may rule upon the motion when judgment is entered. If such a motion is filed after judgment but before an appeal is filed, the motion shall be filed with the clerk of the trial court and may be ruled upon by the trial judge thereafter. After an appeal is filed, such a motion shall be filed with the appellate clerk and shall be forwarded by the appellate clerk to the trial judge for a decision. If the judge who tried or presided over the case is unavailable, the motion shall be forwarded to the clerk of the trial court in which the case was tried, who shall assign the motion for a hearing and decision to any judge of the Superior Court.Upon hearing and consideration of the motion, the trial court shall file with the clerk of the trial court its written or oral memorandum of decision that shall include the factual and legal basis therefor. If oral, the decision shall be transcribed by the court reporter and signed by the trial court. If an appeal has not been filed, the clerk shall enter the decision on the trial court docket and shall send notice of the decision to counsel of record. If an appeal has been filed, the clerk of the trial court shall enter the decision on the trial court docket and send notice of the decision to the appellate clerk, and the appellate clerk shall issue notice of the decision to all counsel of record.