Opinion
No. CV 08-4002259S
May 23, 2011
MEMORANDUM OF DECISION
This is a habeas petition in which the petitioner, Damon Orr, alleges that his trial counsel, attorney Joseph G. Bruckmann, rendered ineffective assistance by failing to pursue a motion to dismiss a charge of sexual assault in the first degree, Conn. Gen. Stat. § 53a-70(a)(1), brought against him in the underlying prosecution. The petitioner and respondent have filed cross motions for summary judgment.
I. FACTS AND PROCEDURAL HISTORY
The record reveals the following relevant facts and procedural history. The petitioner was the defendant in State v. Damon Orr, Docket No. CR-06-0212613 pending in the Judicial District in Fairfield. The State alleged that on May 22, 1996, the petitioner robbed and sexually assaulted a woman in Bridgeport, Connecticut. The victim reported the assault and robbery that same day. The petitioner was not identified at that time. In October 2005, the Connecticut State Police Forensic Laboratory advised the police that a DNA profile comparison had been performed and that a suspect had been identified in the aforementioned assault and robbery — the petitioner. An application for the petitioner's arrest was submitted and signed for on January 11, 2006 by a superior court judge. The arrest warrant contained a charge of robbery in the first degree. On March 9, 2006, the petitioner was arrested pursuant to that warrant.
Following the petitioner's arrest, petitioner's trial counsel moved to dismiss the robbery count on the grounds that the statute of limitations on that count had expired. On April 13, 2006, the court granted the petitioner's motion. Thereafter, the State filed a substituted information charging the petitioner with sexual assault in the first degree, in violation. of Conn. Gen. Stat. § 53a-70(a)(1) and kidnapping in the first degree in violation of Conn. Gen. Stat. § 53a-92(a)(2)(A). On March 15, 2007, the petitioner pleaded guilty under the Alford doctrine to one count of sexual assault in the first degree. On July 16, 2007, the petitioner was sentenced on this charge to a term of imprisonment of 20 years, execution suspended after 12 years with 35 years probation. The State entered a nolle on the remaining kidnapping charge.
On February 22, 2008, the petitioner filed a petition for a writ of habeas corpus. On December 9, 2010, he filed an amended petition. In his amended petition, the petitioner claims that his due process right to the effective assistance of counsel was denied by the actions and omissions of Attorney Bruckmann in that Attorney Bruckmann did not pursue a motion to dismiss the charge of sexual assault in the first degree. On December 13, 2010, the respondent filed an answer denying the substantive allegations of the complaint.
At the time of the offense, the statute of limitations for sexual assault in the first degree, a class B felony, was five years from the date of the offense pursuant to Conn. Gen. Stat. § 54-193. On May 16, 2000, the legislature adopted Public Act 00-80, codified at Conn. Gen. Stat. § 54-193b, which extended the statute of limitations period for, among other offenses, sexual assault in the first degree, to twenty years from the date of the offense. The statute became effective that same day. The statute was amended in June 2007 and now provides, in relevant part, that "Notwithstanding the provisions of sections 54-193 and 54-193a, there shall be no limitation of time within which a person may be prosecuted for a violation of . . . 53a-70, provided: (1) the victim notified any police officer or state's attorney acting in such police officer's or state's attorney's official capacity of the commission of the offense not later than five years after the commission of the offense, and (2) the identity of the person who allegedly committed the offense has been established through a DNA (deoxyribonucleic acid) profile comparison using evidence collected at the time of the commission of the offense."
The effective date of this amendment was July 1, 2007.
On February 4, 2011, the respondent filed the instant motion for summary judgment and memorandum in support thereof. On February 15, 2011, the petitioner filed an objection to the respondent's motion and filed a cross motion for summary judgment.
The parties' motions will be discussed herein.
I. LEGAL DISCUSSION
A habeas court may grant summary judgment "if the pleadings, affidavits and any other evidence submitted show that there is no genuine issue of material fact between the parties requiring a trial and the moving party is entitled to judgment as a matter of law." Lawrence v. Commissioner of Correction, 125 Conn.App. 759 (2010), citing Practice Book § 23-37. "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Lewis v. Chelsea G.C.A. Realty Partnership, L.P., 86 Conn.App. 596, 600-01, 862 A.2d 368 (2004), cert. denied, 273 Conn. 909, 870 A.2d 1079 (2005). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A material fact . . . [is] a fact which will make a difference in the result of the case." Anderson v. Schoenhorn, 89 Conn.App. 666, 671 (2005); Ace Equipment Sales, Inc. v. Buccino, 273 Conn. 217, 227, 869 A.2d 626 (2005). A party may not "rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 558, 791 A.2d 489 (2002).
In the present case, the petitioner's claim is that the petitioner's trial counsel failed to pursue a motion to dismiss the charge of sexual assault in the first degree on statute of limitations grounds. Petitioner argues that in 1996, at the time of the alleged offense, the applicable statute of limitations for sexual assault in the first degree (Conn. Gen. Stat. § 53a-70a(1), a B felony), was governed by the five-year statute of limitations set forth in Conn. Gen. Stat § 54-193. Petitioner claims, among other reasons, that although the statute of limitations period for sexual assault in the first degree was amended in 2000 to enlarge the limitations period for this offense, the legislature did not contemplate a retroactive application of the statute. As such, the petitioner argues that the limitations period for the sexual assault charge against the petitioner had expired and that petitioner's trial counsel should have moved to dismiss this charge. The respondent, however, argues that Conn. Gen. Stat § 54-193b was enacted prior to the expiration of the five-year statute of limitation proscribed by Conn. Gen. Stat § 54-193 and is procedural in nature, thereby subject to a presumption of retroactivity.
In evaluating the validity of the parties' claims, the court must consider the Supreme Court's decision in State v. Skakel, 276 Conn. 633 (2006). In Skakel, the defendant was arrested on January 19, 2000, for the October 1975, murder of the victim, Martha Moxley. The case was transferred from the docket for juvenile matters to the regular criminal docket. Prior to trial, the defendant filed a motion to dismiss the information on the ground that his prosecution for murder was barred by the five-year limitation period of Conn. Gen. Stat. § 54-193, the statute of limitations that was in effect at the time of the victim's murder. The trial court denied the defendant's motion to dismiss, concluding that the five-year limitation period of the pre-1976 amendment version of Conn. Gen. Stat. § 54-193 was inapplicable to the crime of murder. The case proceeded to trial and a jury found the defendant guilty of murder.
On appeal to the Appellate Court, the defendant challenged the retroactive application of Conn. Gen. Stat. § 54-193 as amended in 1976 by Public Act 76-35. In upholding the trial court's decision, the court evaluated the issue of whether this statute should be applied retroactively or prospectively because the statute itself was silent as to whether the legislature intended to apply the statute retroactively or prospectively. In reaching its decision, the court explained that whether to apply a statute retroactively or prospectively depends upon the intent of the legislature in enacting the statute. State v. Skakel, 276 Conn. 633, 679-81 (2006); In re Eden F., 250 Conn. 674, 695, 741 A.2d 873 (1999). In seeking to discern that intent, the court noted that statutes affecting substantive rights shall apply prospectively only, absent some clear and unequivocal expression by the legislature to apply the statute retrospectively. State v. Skakel, 276 Conn. at 680; Rice v. Vermilyn Brown, Inc., 232 Conn. 780, 786, 657 A.2d 616 (1995); Coley v. Camden Associates, Inc., 243 Conn. 311, 316, 702 A.2d 1180 (1997). On the other hand, procedural or remedial statutes are intended to apply retroactively, absent a clear expression of legislative intent to the contrary. State v. Skakel, 276 Conn. at 680; Miano v. Thorne, 218 Conn. 170, 175, 588 A.2d 189 (1991). While there are no precise definitions of `substantive law' and `procedural law', it is generally agreed that a substantive law creates, defines and regulates rights while a procedural law prescribes the methods of enforcing such rights or obtaining redress. State v. Skakel, 276 Conn. at 680-81; Carr v. Planning and Zoning Commission, 273 Conn. 573, 593, 872 A.2d 385 (2005).
In 1976, the legislature amended § 54-193 to provide: "No person shall be prosecuted for any offense, except a capital felony or a class A felony for which the punishment is or may be imprisonment in excess of one year, except within five years next after the offense has been committed . . . There shall be no limitation of time within which a person may be prosecuted for a capital felony or a class A felony." P.A. 76-35, § 1.
The court stated that ex post facto clause of the United States Constitution must also be considered in determining the retrospective application of any criminal statute. This clause precludes any state from enacting "any law [that] imposes punishment for an act [that] was not punishable at that time [that] it was committed; or imposes additional punishment to that then prescribed." State v. Skakel, 276 Conn. at 681; Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). The court explained that the ex post facto clause is violated when a state enacts a law after the expiration of a previously applicable limitations period to revive a previously time-barred prosecution because it deprives the defendant of a fully vested defense to prosecution. State v. Skakel, 276 Conn. at 681; Stogner v. California, 539 U.S. 607, 632-33, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003). The ex post facto clause is not violated, however, when a State extends a statute of limitations and the prosecution of a case is not yet time barred. State v. Skakel, 276 Conn. at 681; Stogner v. California, 539 U.S. at 632.
The court concluded that, subject to the limitations of the ex post facto clause, criminal statutes of limitation (including P.A. 76-35, § 1, the statute at issue in that case), are procedural in nature and should be accorded a presumption of retroactivity, absent clear and unequivocal legislative intent to the contrary. In doing so, the court explained that criminal statutes of limitation, like civil statutes of limitation, are predicated upon general policy considerations and "represent a legislative judgment about the balance of equities in a situation involving the tardy assertion of otherwise valid rights: [t]he theory [being] that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them." State v. Skakel, 276 Conn. at 682-83; United States v. Marion, 404 U.S. 307, 322-23 n. 14, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). The court recognized, however, that "[t]he test of whether a statute is to apply retroactively, absent an express legislative intent, is not a purely mechanical one." State v. Skakel, 276 Conn. at 686; State v. Lizotte, 200 Conn. 734, 741, 517 A.2d 610 (1986); see also In re Daniel H., 237 Conn. 364, 372-73, 678 A.2d 462 (1996). "Even a procedural statute, which ordinarily will be applied retroactively without a legislative imperative to the contrary, will not be applied retroactively if considerations of good sense and justice dictate that it not be so applied." State v. Skakel, 276 Conn. at 686-87; State v. Lizotte, 200 Conn. 734, 741, 517 A.2d 610 (1986); see also In re Daniel H., supra, 237 Conn. 372-73.
In the present case, the respondent argues that summary judgment is appropriate because Conn. Gen. Stat. § 54-193b was passed before the expiration of the preamendment five-year statute of limitations and, being a procedural statute, should be afforded a presumption of retroactivity. The petitioner argues, however, that the respondent's motion should be denied because unlike the case in Skakel, Conn. Gen. Stat. § 54-193b was not an amendment to an existing statute but an "entirely new statute" and because the legislative history of Conn. Gen. Stat. § 54-193b suggests that this statute should be afforded prospective application only.
It is not disputed that at the time of the offense, the statute of limitations for sexual assault in the first degree, a class B felony, was five years from the date of the offense pursuant to Conn. Gen. Stat. § 54-193. On May 16, 2000, however, the legislature adopted Public Act 00-80, codified at Conn. Gen. Stat. § 54-193b, which extended the statute of limitations period for, among other offenses, sexual assault in the first degree, to twenty years from the date of the offense. The statute became effective that same day.
The court finds that in this case, the applicable statute of limitations for the crime of sexual assault in the first degree, Conn. Gen. Stat. § 53a-70(a)(1), was Conn. Gen. Stat. § 54-193b. Conn. Gen. Stat. § 54-193b applies because the crime for which the defendant was charged, sexual assault in the first degree, was one of the enumerated charges to which Conn. Gen. Stat. § 54-193b applies. Specifically, the victim in the underlying case notified the authorities of the assault the same day it occurred and the identity of the defendant was established through a DNA (deoxyribonucleic acid) profile comparison using evidence collected at the time of the commission of the offense. Conn. Gen. Stat. § 54-193b was enacted in May 2000, before the expiration of the five-year statute of limitation previously imposed by Conn. Gen. Stat. § 54-193. In keeping with the court's ruling in Skakel, this criminal statute of limitation, which is procedural in nature, should be accorded a presumption of retroactivity, absent a clear and unequivocal expression of legislative intent to the contrary. State v. Skakel, 276 Conn. at 680.
The court is not persuaded by petitioner's argument that the legislative history of Conn. Gen. Stat. § 54-193b suggests application of this statute prospectively. The record of the legislative debate over this statute is devoid of a clear and unequivocal intent by the legislature to apply this statute prospectively. To the contrary, the record discusses concerns about the scope of the retroactive application of the statute, specifically, whether the enactment of the new statute would apply only in cases where the previous five-year statute of limitations had not yet expired or in cases where the previous five-year statute of limitations had already run, thereby reviving a previously time barred case. The petitioner's argument is further undermined by the legislative history cited with Conn. Gen. Stat. § 54-193b which states that this statute was "effective May 16, 2000, and applicable to any offense committed prior to, on or after said date." (Emphasis added.) These factors lead this court to conclude that the legislature intended for Conn. Gen. Stat. § 54-193b to be applied retroactively.
The application of Conn. Gen. Stat. § 54-193b in this case does not violate the ex post facto clause of the United States Constitution. The ex post facto clause prohibits "the application of any law that either: (1) imposes a punishment for an act that was not punishable at the time it was committed; or (2) imposes additional punishment for an act that was already committed." Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, CT Page 11794 67 L.Ed.2d 17 (1981); State v. Skakel, 276 Conn. at 681; State v. Kelly, 256 Conn. 23, 88, 770 A.2d 908 (2001). At the time of the offense, May 22, 1996, sexual assault in the first degree in violation of Conn Gen. Stat. § 53a-70(a)(1) was punishable as a class B felony and subject to the five-year statute of limitations period set forth in Conn. Gen. Stat. § 54-193(b). Conn. Gen. Stat. § 54-193b was enacted prior to the expiration of the five-year limitation period previously proscribed by Conn. Gen. Stat. § 54-193(b) and therefore does not violate the ex post facto clause. Moreover, this statute does not impose an additional punishment for sexual assault in the first degree, it merely extends the limitations period for this offense.
Petitioner's attempt to distinguish the Court's holding in Skakel by arguing that the legislature enacted "an entirely new statute," Conn. Gen. Stat. § 54-193b, instead of amending Conn. Gen. Stat. § 54-193b when it extended the statute of limitations for sexual assault in the first degree, is a distinction without a difference. The ex post facto clause applies to any law that either imposes a punishment for an act that was not punishable at the time it was committed or imposes additional punishment for an act that was already committed. (Emphasis added.). For the reasons stated herein, the enactment of Conn. Gen. Stat. § 54-193b, a new law, does not violate the ex post facto clause. As such, plaintiff's motion for summary judgment fails as a matter of law.
III. CONCLUSION
For the foregoing reasons, the respondent's motion for summary judgment is GRANTED and the petitioner's Objection to the Respondent's motion for summary judgment is OVERRULED. Petitioner's motion for summary judgment is DENIED.
SO ORDERED.