Donald v. Comm'r of Corr.

• Decision Date: 18 October 2022
• Docket Number: AC 44258
• Citation: 216 Conn.App. 63,284 A.3d 665
• Parties: Ravon DONALD v. COMMISSIONER OF CORRECTION
• Court: Connecticut Court of Appeals

216 Conn.App. 63

284 A.3d 665

Ravon DONALD

v.COMMISSIONER OF CORRECTION

AC 44258

Appellate Court of Connecticut.

Argued March 2, 2022

Officially Released October 18, 2022

Vishal K. Garg, assigned counsel, for the appellant (petitioner).

Kathryn W. Bare, senior assistant state's attorney, with whom, on the brief, were Sharmese L. Walcott, state's attorney, and Angela R. Macchiarulo and Michael Proto, senior assistant state's attorneys, for the appellee (respondent).

Suarez, Clark and Sheldon, Js.

SHELDON, J.

Following the granting of his petition for certification to appeal, the petitioner, Ravon Donald, appeals from the judgment of the habeas court denying his fourth amended petition for a writ of habeas corpus, in which he challenged the constitutionality of his conviction of and modified total effective sentence for five felony offenses of which a jury had found him guilty in connection with an armed robbery and the shooting of two clerks at a grocery store in Hartford on December 22, 2011. On appeal, the petitioner contends that the habeas court improperly rejected his claims that (1) the state violated his due process right to a fair trial in the underlying criminal trial by (a) knowingly presenting false or misleading testimony to the jury concerning the details of its agreement with one of his alleged accomplices, Tierais Harris, to testify against him in that trial and (b) failing to disclose material evidence to him, for his use in that trial, concerning the credibility of two of the state's witnesses, both his alleged accomplice, Harris, and the lead detective in the case, Reginald Early, who testified to the petitioner's alleged confession to participating in the armed robbery and shootings on which the charged offenses were based; and (2) his trial counsel in the underlying criminal trial, J. Patten Brown III, rendered ineffective assistance in connection with the petitioner's sentencing after that trial by failing to present an effective argument urging leniency on the petitioner's behalf and failing to support such an argument by developing and presenting to the trial court any of the extensive mitigating information about the petitioner's troubled background and upbringing to which he and his expert witness, Jodi DeSauteles, a social worker employed by the public defender's office, later testified at the habeas trial. Although we conclude that the petitioner failed to establish either of his due process claims, we agree with the petitioner that his trial counsel rendered ineffective assistance in connection with his sentencing and that he was prejudiced by such ineffective assistance with respect to his current total effective sentence, which was later imposed on him by order of the Sentence Review Division of the Superior Court (review division) after it determined that his original total effective sentence was disproportionate and should be reduced by thirty years of imprisonment to remedy its disproportionality. Accordingly, we affirm the habeas court's judgment insofar as it rejects the petitioner's due process claims but reverse that judgment insofar as it rejects his claim of ineffective assistance of counsel at sentencing and remand the case to the habeas court with direction to vacate his modified total effective sentence in the underlying criminal case and to remand the case to the trial court for resentencing.

The following facts and procedural history are relevant to our resolution of this appeal. The petitioner's first jury trial commenced on April 7, 2014, but ended with a mistrial when the jury was unable to reach a unanimous verdict. Following the mistrial, on or about June 10, 2014, the state offered the petitioner a plea bargain under which he would be sentenced to a term of eighteen years of imprisonment followed by seven years of special parole if he would agree to plead guilty to his pending charges. The petitioner declined to accept the state's offer. On February 5, 2015, following a second jury trial on the same charges, a jury found the petitioner guilty as charged of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (2), assault in the first degree in violation of General Statutes § 53a-59 (a) (1), assault in the first degree in violation of § 53a-59 (a) (5), and carrying a pistol without a permit in violation of General Statutes § 29-35 (a).¹ As a result of that verdict, the petitioner was exposed to a maximum possible sentence on all charges of eighty-five years of imprisonment.

On April 2, 2015, the court sentenced the petitioner to a total effective sentence of seventy-five years of imprisonment, fifteen years of which were mandatory, followed by ten years of special parole. On April 9, 2015, after the petitioner was sentenced, he filed a timely application for sentence review with the review division. Thereafter, on August 18, 2015, while his sentence review application was pending, he timely appealed to this court from his underlying judgment of conviction, and the appeal was transferred to our Supreme Court.

On May 2, 2017, our Supreme Court affirmed the petitioner's conviction in the underlying criminal case by issuing its decision in his direct appeal. State v. Donald , 325 Conn. 346, 157 A.3d 1134 (2017). In that decision, our Supreme Court, in language later adopted by the habeas court in its memorandum of decision, set forth the facts established in the petitioner's underlying criminal trial concerning the criminal conduct at issue and the subsequent police investigation that led to the petitioner's arrest and conviction in connection there-with: "On the evening of December 22, 2011, the victims, Nicholas Ulerio and Brunilda Villa-Rodriguez, were working behind the counter at Ulerio Grocery Store (grocery store) on Homestead Avenue in Hartford. The [petitioner] and ... Harris, both wearing masks, entered the grocery store. The [petitioner] was armed with an antique revolver and Harris was armed with a BB gun. The [petitioner] approached the counter and shot the victims multiple times, inflicting serious injuries upon both victims. He then kicked a door repeatedly to gain access to the area behind the counter and proceeded to take approximately $100 from the cash register. The [petitioner] and Harris then left the grocery store. The robbery was recorded on the store's surveillance cameras. ...

"Detective ... Early of the Hartford Police Department was the lead detective assigned to investigate the robbery at the grocery store. Early had known the [petitioner] for three years, which resulted in a rapport between them. The [petitioner] felt comfortable enough speaking with Early that in the days prior to the robbery he had attempted to contact Early for help because he was homeless. On the basis of a voice mail message that the [petitioner] had left for Early on December 19, 2011, in which the [petitioner] had sought to turn in an antique revolver to the police for cash, Early believed that the [petitioner] may have participated in the robbery.

"On January 6, 2012, Early contacted the [petitioner] and arranged to meet him in Keney Park, telling the [petitioner] that the purpose of the meeting was to resolve an outstanding warrant. Early and a second detective, Kevin Salkeld, waited for the [petitioner] in an unmarked police vehicle. The [petitioner] arrived at Keney Park at approximately 3:30 p.m., driving a pickup truck. The [petitioner] then voluntarily sat in the front passenger seat of the police vehicle, with Early seated in the driver's seat and Salkeld seated in the backseat. Early spoke with the [petitioner] and the [petitioner] agreed to accompany the detectives to the police station to turn himself in on the outstanding warrant. At that point the [petitioner] understood that he was under arrest. The [petitioner] then informed the detectives that the pickup truck he had driven to Keney Park was stolen and contained drugs. The detectives arranged for other officers to come and tow the vehicle. While waiting for the officers to arrive, Early asked the [petitioner] if he knew anything about the robbery on Homestead Avenue and if he was willing to speak to the police about the robbery. The [petitioner] responded, " ‘[y]eah, I know about that ....’ " Salkeld interpreted the [petitioner's] response to mean that the [petitioner] admitted that he had been involved in the robbery. The detectives did not ask the [petitioner] any additional questions about the robbery while at Keney Park.

"The detectives then transported the [petitioner] to the police station, completed the processing of his arrest on the outstanding warrant, and placed him in an interrogation room, where they had him wait while they prepared to question him. The detectives provided Miranda² warnings to the [petitioner] and at 5:18 p.m., the [petitioner] signed a waiver indicating that he understood his rights and did not wish to invoke them. Subsequently, the detectives questioned the [petitioner] for several hours during which time he provided a detailed statement in which he admitted to participating in the robbery and shooting the victims. Early transcribed the [petitioner's] oral statement into a written statement that the [petitioner] could read and sign. The [petitioner] provided a description of the gun that he used in the robbery, which was the same gun he had previously contacted Early to discuss turning in to the police for cash. He identified the person to whom he sold the gun after the robbery and selected him from a photographic array. The [petitioner] also identified Harris as the other individual involved in the robbery and selected him from a photographic array. Although the [petitioner] initially expressed a desire not to sign the statement, as documented in the statement itself, at approximately 9:30 p.m. the [petitioner] signed it. ... ...