Opinion
No. 410009
June 20, 2006
MEMORANDUM OF DECISION
I. INTRODUCTION.
The habeas corpus petition now before the court has been filed by Leroy Hutton, a prisoner who was tried, convicted, and sentenced in abstentia. Hutton's voluntary absence created an impossible task for his lawyer, now alleged to have been ineffective. In addition to complaining about his lawyer's performance, Hutton asserts a double jeopardy challenge to his sentence on three counts of conspiracy based on a single agreement. He finally complains of the respondent warden's calculation of his parole eligibility date. For the reasons stated below, Hutton's claims must be denied.
II. BACKGROUND.
This case arises out of an armed home invasion in West Hartford on December 4, 1991. The trial court (Corrigan, J.) succinctly summarized the crime as follows:
[T]he events show a sophisticated criminal program of robbery by three men, at least two of whom had guns, that tape was brought to the scene of the crime for the purpose of binding, gagging, and blindfolding the principle [sic] victim, that little care was afforded any of the victims, anyone could have, under the circumstances, been maimed or killed. The defendant here [Hutton] had put a gun to the head of one of the victims and, from the conduct, could be inferred as one of the leaders of the group.
(December 9, 1992 T. at 511.)
Hutton was arrested, pursuant to a warrant, on December 30, 1991, and was subsequently released on bond.
On October 22, 1992, the State filed a substitute information, consisting of ten counts. The First Count accused Hutton of burglary in the first degree, in violation of Conn. Gen. Stat. § 533a-101(a)(2). The Second Count accused him of conspiracy to commit burglary in the first degree, in violation of Conn. Gen. Stat. § 53a-48(a). The Third and Fourth Counts accused him of kidnapping in the first degree, in violation of Conn. Gen. Stat. § 53a-92(a)(2)(A). The Fifth Count accused him of conspiracy to commit kidnapping in the first degree, in violation of Conn. Gen. Stat. § 53a-48(a). The Sixth Count accused him of robbery in the first degree, in violation of Conn. Gen. Stat. § 53a-134(a)(4). The Seventh Count accused him of conspiracy to commit robbery in the first degree, in violation of Conn. Gen. Stat. § 53a-48(a). The Eighth and Ninth Counts accused him of risk of injury to a child, in violation of Conn. Gen. Stat. § 53-21. The Tenth Count accused him of conspiracy to commit risk of injury to a child, in violation of Conn. Gen Stat. § 53a-48(a).
Hutton was represented by an experienced private attorney, Gerald Klein. On Friday, October 23, 1992, a jury of six members was selected. The Court instructed Hutton to appear for the impaneling of the jury and the commencement of evidence on Monday, October 26. (T. October 23, 1992, at 353.) On that latter day, however, Hutton was nowhere to be found. The court denied motions for continuance, mistrial, and the withdrawal of counsel. On October 28, 1992, following a trial in abstentia, the jury found Hutton guilty of the first nine counts and not guilty of the tenth.
On December 9, 1992, the court sentenced Hutton in abstentia. The court imposed individual sentences of 20 years on the First, Second, Fifth, Sixth, and Seventh Counts, 25 years on the Third and Fourth Counts, and 10 years on the Eighth and Ninth Counts. All sentences were concurrent with each other, for a total effective sentence of 25 years.
No appeal of Hutton's convictions and sentence has ever been taken.
Hutton eventually surfaced in 1997. On April 23, 1997, the court (Espinosa, J.) sentenced him, on a plea of guilty, to a term of five years for the crime of failure to appear in the first degree. That sentence was ordered to run concurrently with Hutton's 1992 sentence.
On February 26, 1998, Hutton filed the habeas corpus petition now before the court. The court (Downey, J.) referred the matter to the Office of the Chief Public Defender (Office) for investigation of indigence on that very day. On June 11, 1998, an attorney from the Office filed an appearance for Hutton. On May 2, 2000, Hutton's present attorney filed an appearance. For reasons not appearing on the record, an Amended petition was not filed until October 4, 2005, and the case was not referred to the undersigned for trial until April 7, 2006.
A period of over eight years thus elapsed between the filing of this petition and the commencement of the trial. The petitioner was incarcerated throughout this period and, because of his indigence, represented by the public defender. The case is not remarkable for its complexity. (Discovery appears to have been minimal, apart from the ordering of transcripts, and no expert witnesses were called.) Under these circumstances, a delay of eight years is wholly inconsistent with the statutory command that habeas corpus cases "shall proceed in a summary way." Conn. Gen. Stat. § 52-470(a). See Hogewoning v. Hogewoning, 117 Conn. 264, 265, 167 A. 813 (1933) (construing statute as requiring habeas corpus procedure to "be prompt and without unreasonable and unnecessary delay"). (Internal quotation marks and citation omitted.) In addition, the difference between the statutory command of promptness and the delay that has been visited on an indigent petitioner "reflects a disparity in opportunity of access to the [judicial] forum that is constitutionally impermissible." Gaines v. Manson, 194 Conn. 510, 526, 481 A.2d 1084 (1984).
Hutton's amended petition consists of four counts. Count One alleges that Klein "failed to communicate to [Hutton] the strength of the state's case" and "misadvised" him "to reject the pretrial agreement." Count Two alleges that Hutton's sentences on "three counts of conspiracy based on a single agreement" violate his constitutional protection against double jeopardy. Count Three alleges that Klein was ineffective at sentencing because he "failed to present available mitigation." Count Four alleges that the respondent Warden has miscalculated Hutton's parole eligibility date. These Counts will now be considered in turn.
III. DISCUSSION. A. Count One.
Count One alleges that Klein "failed to communicate to [Hutton] the strength of the State's case" and "misadvised [him] to reject the pre trial plea agreement."There is no credible evidence that Klein failed to communicate the strength of the State's case to Hutton. Klein's credible evidence establishes that Hutton was known to his accusers, so there was no plausible defense of misidentification. Hutton was unable to explain why his accusers would implicate him in a heinous crime if he had not been involved. Klein communicated these facts to Hutton.
Prior to trial, the State offered Hutton a plea agreement, and Hutton rejected the offer. There is no credible evidence as to exactly what the offer was. Hutton's testimony that Klein told him he was offered a term of five years with the right to argue for less is rejected as incredible. Hutton's testimony that Klein advised him not to accept the offer was not credible. Klein's credible testimony establishes that he advocated consideration of the plea agreement by his client but properly left the decision as to whether to accept or reject the offer to Hutton himself.
Under these circumstances, the factual allegations of Count One have not been established.
Count Two.
Count Two alleges that Hutton's sentences on "three counts of conspiracy based on a single agreement" violate his constitutional protection against double jeopardy.
It must initially be determined whether Hutton's double jeopardy claim poses an issue of law reviewable on habeas corpus despite Hutton's failure to raise it before the sentencing court or to assert it on direct appeal. The court concludes that the claim is not so reviewable.
Hutton's failure to raise the issue before the sentencing court is not problematic. Claims of multiple punishments for the same offense may be raised on direct appeal when not raised before the trial court. State v. Snook, 210 Conn. 244, 263, 555 A.2d 390, cert. denied, 492 U.S. 924 (1989). Under well-established Connecticut law, however, Hutton's failure to raise his double jeopardy issue on direct appeal is fatal. "Habeas, as a collateral form of relief, is generally available to litigate constitutional issues only if a more direct route to justice has been foreclosed through no fault of the petitioner." Tart v. Commissioner, 94 Conn.App. 134, 139, cert. denied, 278 Conn. 904 (2006). Under these circumstances, the reasoning of Cobham v. Commissioner, 258 Conn. 30, 779 A.2d 80 (2001), is applicable. In order to challenge an illegal sentence in a habeas corpus challenge, Hutton "must demonstrate good cause for his failure to raise a claim on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition." Id. at 40. Cobham expressly states that, for purposes of this rule, an "illegal sentence" includes one which "violates a defendant's right against double jeopardy."
Id. at 38.
In this case, Hutton's failure to raise the double jeopardy issue on appeal is plainly his own fault. He was voluntarily absent and in parts unknown both during his trial and his subsequent sentencing proceeding. Because of this voluntary absence, no appeal was taken. Under these circumstances, the "cause" requirement of Cobham cannot be satisfied, and Hutton's claim of an illegal sentence cannot be reviewed.
Count Three.
Count Three alleges that Klein "failed to present available mitigation on behalf of [Hutton]" at his sentencing.
The evidence establishes that, at the time of sentencing, Hutton had a girlfriend, Tanya Thomas, with whom he had a child. Klein called neither Thomas nor her mother to speak on Hutton's behalf at sentencing. These witnesses, had they been called, would have testified that Hutton was a skilled musician and a good father.
Klein credibly testified that, had he known of these witnesses, he would have made a strategic decision not to call them, since their testimony would not have been mitigating. Thomas became pregnant by Hutton when she was 16 and he was 24. Their child was born in September 1991, approximately three months prior to the heinous crime for which Hutton was convicted. The impregnation of a sixteen-year-old girl and the subsequent commission of a violent felony likely to result in a substantial period of incarceration are not the hallmarks of a good father. This evidence, if presented, might well be viewed by the court as aggravating rather than mitigating in nature. Under these circumstances, Klein was not ineffective in failing to call the witnesses in question.
Count Three additionally alleges that Klein was ineffective for failing to raise at sentencing the double jeopardy claim asserted in Count Two. As discussed with respect to that count, however, the failure to raise the double jeopardy claim at sentencing was not fatal. The fatal omission, rather, was the failure to raise that claim on direct appeal, a failure squarely attributable not to Klein but to Hutton.
Count Four.
Count Four alleges that the respondent Warden has incorrectly calculated Hutton's parole eligibility date.
Hutton's claim focuses on Conn. Gen. Stat. § 54-125a(a). Sec. 54-125a(a) provides, in relevant part, that:
A person convicted of one or more crimes who is incarcerated on or after October 1, 1990, who received a definite sentence or aggregate sentence of more than two years, and who has been confined under such sentence or sentences for not less than one-half of the aggregate sentence or one-half of the most recent sentence imposed by the court, whichever is greater, may be allowed to go at large on parole in the discretion of the panel of the Board of Pardons and Paroles for the institution in which the person is confined, if (1) it appears from all available information, including any reports from the Commissioner of Correction that the panel may require, that there is reasonable probability that such inmate will live and remain at liberty without violating the law, and (2) such release is not incompatible with the welfare of society.
The respondent Warden has calculated Hutton's parole eligibility date as September 7, 2009. That date is 12 years and 6 months after Hutton began serving his total effective sentence of 25 years. It is thus the date on which he will have served one-half of the sentence pronounced by the court.
Hutton claims that his parole eligibility date should be calculated by factoring in the good conduct time that he has earned and, in the event of future good behavior, will earn in the future. Such a calculation, based on a smaller "sentence" would advance his parole eligibility to an earlier date.
Hutton's argument is not persuasive. Sec. 54-125a(a) expressly allows parole consideration for persons, serving definite sentences, who have been confined for "one-half of the most recent sentence imposed by the court." (Emphasis added.) This provision stands in contrast to Conn. Gen. Stat. § 54-125, applicable to persons confined for indeterminate sentences, which allows parole consideration for a person "having been in confinement under such sentence for not less than the minimum term, or, if sentenced to life, after having been in confinement under such sentence for not less than the minimum term imposed by the court, less such time as may have been earned under the provisions of section 18-7." (Emphasis added.)
"When construing a statute, our fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language, as applied to the facts of the case . . . In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes." Kinsey v. Pacific Employers Insurance Co., 277 Conn. 398, 405 (2006). (Internal quotation marks, brackets, footnote, and citation omitted.) In this case, "after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results." Sec. 1-2z.
It is common ground that the statute in question, Conn. Gen. Stat. § 54-125a(a), is unambiguous. The statutory phrase "imposed by the court" contained in § 54-125a(a) plainly refers to the sentence pronounced by the court prior to any administrative adjustment by the Department of Correction. See Velez v. Commissioner, 250 Conn. 536, 551, 738 A.2d 604 (1999).
The statutory context of the phrase just quoted is also important. As Calabresi, J., has observed, "`You should have passed, dummy,' means something entirely different at a bridge table from what it means on Superbowl Sunday." E. Norman Peterson Marital Trust v. Commissioner, 78 F.3d 795, 796 (2d Cir. 1996). The statutory phrase in question here, "imposed by the court," Conn. Gen. Stat. § 54-125a(a), stands in stark contrast with the qualifying phrase, "less such time as may have been earned under the provisions of section 18-7," contained in the immediately preceding statute, § 54-125. Given the controlling statutory text and its relationship to other statutes, Hutton's position that his parole eligibility date should be determined with reference to good time earned is untenable.
IV. CONCLUSION.
For the reasons stated above, the petition for a writ of habeas corpus is denied.