Duncan v. Comm'r of Corr.

• Decision Date: 21 March 2017
• Docket Number: AC 37366
• Citation: 157 A.3d 1169,171 Conn.App. 635
• Court: Connecticut Court of Appeals
• Parties: Patton E. DUNCAN v. COMMISSIONER OF CORRECTION

171 Conn.App. 635

157 A.3d 1169

Patton E. DUNCAN

v.COMMISSIONER OF CORRECTION

AC 37366

Appellate Court of Connecticut.

Argued October 25, 2016

Officially released March 21, 2017

Craig A. Sullivan, assigned counsel, for the appellant (petitioner).

Nancy L. Walker, deputy assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Jo Anne Sulik, supervisory assistant state's attorney, for the appellee (respondent).

DiPentima, C. J., and Keller and West, Js.

DiPENTIMA, C. J.

The petitioner, Patton E. Duncan, a citizen of Jamaica,¹ appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court (1) abused its discretion in denying certification to appeal, (2) improperly concluded that he had received the effective assistance of counsel and (3) improperly denied his due process claim that his pleas were not made knowingly and voluntarily. Because the petitioner did not demonstrate that the habeas court abused its discretion in denying the petition for certification to appeal, we dismiss the appeal.

The following facts and procedural history are relevant to this appeal. The petitioner was charged in two separate informations as a result of events that had occurred at different times in different locations. On April 20, 2011, the petitioner appeared before the court, Vitale, J ., and pleaded guilty, pursuant to the Alford doctrine,² to one count of larceny in the third degree (Hartford case). At this time, the prosecutor recited the facts underlying this plea: "Your Honor, this matter goes back to November of 2009. At that time, [the petitioner] was apparently estranged from his wife .... A check came into the residence that they were sharing at that time made out to [the petitioner's wife] in the amount of $6000. The [petitioner] endorsed that check, deposited it to his own account, and took out $6000 of the funds for his own use, thus depriving his estranged wife of the money."

The prosecutor then stated that if the petitioner paid $6000 to his estranged wife, then the state would agree to vacate the plea and nolle the larceny charge. During the canvass, the court informed the petitioner that the case would be continued for sentencing until July 29, 2011. Further, it instructed that if the petitioner appeared on that day with a certified bank check in the amount of $6000, the guilty plea would be vacated and the state would nolle the larceny charge. The court warned the petitioner that if he did not have the $6000, he would be sentenced to up to fifteen months incarceration.

The court then asked the following question to the petitioner: "Do you understand, sir, if you are not a United States citizen this could result in your being deported, excluded from the United States or denied naturalization; do you understand that?" The petitioner replied: "Yes, Your Honor." The court also expressly warned the petitioner that it would not grant any additional continuances past July 29, 2011. The court then found that the petitioner's plea was knowingly and voluntarily made with the assistance of counsel, Attorney Deron Freeman.

On July 29, 2011, the petitioner appeared for sentencing with $3000.³ The state requested a period of nine months incarceration. Freeman argued that the petitioner had used the $6000 to maintain the household while his estranged wife was incarcerated. Freeman further requested a suspended sentence. After reviewing the case file, the court sentenced the petitioner to fifteen months incarceration, execution suspended after sixty days, and three years of probation. The court also ordered full restitution within the first two years of probation.

On September 15, 2011, the petitioner appeared before the court, Sheridan, J. , to plead guilty to assault in the third degree in violation of General Statutes § 53a–61 and reckless endangerment in the first degree in violation of General Statutes § 53a–63 (New Britain case). The prosecutor recited the following factual basis for the pleas: The petitioner was involved in a physical altercation with his girlfriend. At this time, the petitioner struck the victim, causing her pain and injuries, while she was holding her one year old son.

During the plea canvass, the court stated: "All right, and if you're not a U.S. citizen, with this conviction you may face consequences of deportation, exclusion for readmission or denial of naturalization pursuant to federal law." The petitioner indicated that he understood these consequences of his guilty plea. The court then found that the plea was voluntarily and knowingly made with the assistance of competent counsel. The court ordered consecutive sentences of one year of incarceration, execution suspended, with two years of probation, for the assault in the third degree and reckless endangerment charges. The defendant was represented by Attorney Kelly Goulet–Case, an assistant public defender.

On October 11, 2011, Judge Sheridan held a hearing on the petitioner's motion for modification in the New Britain case. During that proceeding, the prosecutor noted that she had no objection to the plea on the reckless endangerment charge being vacated. She further agreed to nolle that charge, leaving only the conviction of assault in the third degree in the New Britain case. The court granted the petitioner's motion for modification.

On October 5, 2011, the United States Department of Homeland Security commenced removal proceedings against the petitioner on the ground that his conviction of larceny in the third degree constituted an aggravated felony pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). On February 29, 2012, an immigration judge ordered the petitioner removed to Jamaica. The United States Board of Immigration Appeals dismissed the appeal from the order of the immigration judge. Thereafter, the petitioner was deported from the United States to Jamaica in February, 2013.⁴

In November, 2011, the petitioner commenced the present action. The operative petition was filed on April 22, 2014. In count one, the petitioner alleged that his right to due process was violated because his pleas in the Hartford and New Britain cases were not knowingly, intelligently and voluntarily made. The petitioner further claimed that he did not know or understand the probability of deportation and/or removal under the terms of his plea agreements.

In counts two and three, the petitioner claimed that Freeman and Goulet–Case provided ineffective assistance of counsel in the Hartford and New Britain cases, respectively. Specifically, he alleged that both of his attorneys failed (1) to research adequately the legal issue of the petitioner's immigration status and the possibility of deportation and/or removal as a result of the plea agreements, (2) to advise the petitioner that larceny is an aggravated felony for immigration purposes, subjecting him to automatic removal and ineligibility for cancelation of removal and (3) to make the petitioner's immigration status part of the plea bargaining process. The petitioner also alleged that but for the deficient performance of his attorneys, he would not have pleaded guilty and instead insisted on going to trial.

The court, Fuger, J. , held the habeas trial on September 3, 2014, during which Freeman, Goulet–Case, Attorney Anthony Collins, an expert in immigration law,⁵ and the petitioner testified.⁶ On September 18, 2014, the court issued a memorandum of decision denying the petition for a writ of habeas corpus. With respect to the ineffective assistance of counsel claim against Freeman in the Hartford case, the habeas court concluded that the petitioner had failed to establish deficient performance and prejudice. With respect to the New Britain case, the habeas court determined that Goulet–Case performed deficiently by assuming that the petitioner was a United States citizen. The habeas court then noted that the New Britain case "played no part in the immigration issue, and there was no showing of any other prejudice incurring to the petitioner ...." Although the court did not explicitly address the petitioner's due process claim, it denied the petition for a writ of habeas corpus and the subsequent petition for certification to appeal.

Following the filing of this appeal, the petitioner filed a motion for articulation, requesting that the court address his due process claim. After the habeas court denied this motion, the petitioner filed a motion for review with this court. We granted that motion and the relief requested, ordering the habeas court to articulate whether it had denied count one of the habeas petition and, if so, on what basis. On October 22, 2015, the habeas court issued its articulation. The court explained that the petitioner's due process claim was "wholly dependent on the claims alleged in the other two counts .... Stated somewhat differently, the petitioner cannot prevail on the claim in count one, as it is factually and legally pleaded, without also proving the claims in counts two and three." The court further clarified that the petitioner's due process claim implicitly had been denied on the same grounds as the ineffective assistance of counsel claims in counts two and three of the operative habeas petition. Additional facts will be set forth as necessary.

The petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal⁷ from the denial of his petition for a writ of habeas corpus with respect to his claims of ineffective assistance of counsel and due process violations. Specifically, he argues that because these issues are debatable among jurists of reason, a court could resolve the issues differently or the issues should proceed further, the habeas court abused its discretion in denying his petition to appeal.

"Faced with a habeas court's denial of a petition for certification...