Gregory v. Comm'r of Corr.
| Decision Date | 11 April 2023 |
| Docket Number | AC 44886 |
| Parties | MARCUS GREGORY v. COMMISSIONER OF CORRECTION |
| Court | Connecticut Court of Appeals |
Argued November 8, 2022
Procedural History
Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, where the court Bhatt, J., granted the motions for summary judgment filed by the petitioner and the respondent; thereafter, the court, Bhatt, J., rendered judgment granting in part and denying in part the habeas petition, from which, on the granting of certification, the petitioner and the respondent filed separate appeals with this court. Reversed in part further proceedings.
Sarah Hanna, senior assistant state's attorney, with whom, on the brief, were Margaret E. Kelley, state's attorney, and Jo Anne Sulik, senior assistant state's attorney, for the appellant in Docket No. AC 44886 (respondent).
Shanna P. Hugle, deputy assistant public defender, with whom was Pamela S. Nagy, assistant public defender, for the appellant in Docket No. AC 44957 and the appellee in Docket No. AC 44886 (petitioner).
Sarah Hanna, senior assistant state's attorney, with whom, on the brief, were Joseph T. Corradino, state's attorney and Melissa E. Patterson and Jo Anne Sulik, senior assistant state's attorneys, for the appellee in Docket No. AC 44957 (respondent).
Bright, C.J., and Elgo and Clark, Js.
In these certified appeals, the petitioner, Marcus Gregory, and the respondent, the Commissioner of Correction, appeal from the judgment of the habeas court granting in part and denying in part the petitioner's amended petition for a writ of habeas corpus. In Docket No. AC 44886, the respondent claims that the court improperly rendered summary judgment for the petitioner on the first count of his petition alleging that his kidnapping conviction violated the state and federal constitutions because the trial court failed to instruct the jury pursuant to State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), that, to find him guilty of kidnapping, the jury was required to find that he restrained the victims to a greater extent than necessary to complete other crimes. In Docket No. AC 44957, the petitioner claims that the habeas court improperly rendered summary judgment for the respondent on the second count of his petition alleging that his nolo contendere pleas in two separate cases to kidnapping and other offenses were not made knowingly, intelligently, and voluntarily because Salamon was decided more than ten years after he entered his pleas. We agree with the respondent's claim but disagree with the petitioner's claim. Accordingly, we reverse in part the judgment of the court.
The record reveals the following undisputed facts and procedural history. For his role in a 1997 home invasion in Ansonia,[1] the petitioner was charged with various offenses in two separate informations, which were joined for trial (Ansonia cases). After a jury trial, the petitioner was convicted of "conspiracy to commit kidnapping in the first degree in violation of General Statutes §§ 53a-92 (a) (2) (B) and 53a-48, kidnapping in the first degree in violation of General Statutes §§ 53a-92 (a) (2) (B) and 53a-8, conspiracy to commit burglary in the first degree in violation of General Statutes [Rev. to 1997 §] 53a-101 (a) (2)[2] and [§] 53a-48, burglary in the first degree in violation of . . . §§ 53a-101 (a) (2) and 53a-8, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (4) and 53a-48, aiding robbery in the first degree in violation of . . . §§ 53a-134 (a) (4) and 53a-8, and larceny in the third degree in violation of General Statutes [Rev. to 1997] § 53a-124 (a) (1) as a lesser included offense of larceny in the second degree under General Statutes [Rev. to 1997] § 53a-123 (a) (1)." (Footnote added.) State v. Gregory, 56 Conn.App. 47, 48-49, 741 A.2d 986 (1999), cert, denied, 252 Conn. 929, 746 A.2d 790 (2000). In March, 1998, the court, Thompson, J., imposed a total effective sentence of ninety years of imprisonment, and this court affirmed the judgments of conviction.[3] Id., 54.
Following his arrest in connection with the Ansonia cases, the police linked the petitioner to two burglaries in Bridgeport, and the state charged him with various offenses in connection therewith (Bridgeport cases). See State v. Gregory, 74 Conn.App. 248, 254-55, 812 A.2d 102 (2002), cert, denied, 262 Conn. 948, 817 A.2d 108 (2003). In September, 1999, the petitioner entered conditional pleas of nolo contendere to two counts of kidnapping in the first degree in violation of § 53a-92 (a) (2), one count of burglary in the first degree in violation of § 53a-101 (a) (2), one count of sexual assault in the first degree in violation of General Statutes (Rev. to 1997) § 53a-70 (a) (1), and one count of burglary in the second degree with a firearm in violation of General Statutes § 53a-102a (a). Pursuant to an agreement with the state, the sentences imposed in the Bridgeport cases would run concurrently with the sentences the petitioner had received in the Ansonia cases, and the petitioner reserved the right to appeal from the denial of his motion to suppress. The court, Thim, J., accepted the pleas and imposed a combined total effective sentence of 100 years to run concurrently with the sentences imposed in the Ansonia cases. On appeal, this court affirmed the judgments. State v. Gregory, supra, 74 Conn.App. 264.
Approximately ten years after the petitioner's trial in the Ansonia cases, and nearly nine years after he entered his nolo contendere pleas in the Bridgeport cases, our Supreme Court reinterpreted the intent element of our kidnapping statutes in State v. Salamon, supra, 287 Conn. 541-42. The court held that "to commit a kidnapping in conjunction with another crime, a defendant must intend to prevent the victim's liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime." Id., 542. In 2011, the court adopted a general presumption that the rule announced in Salamon applies retroactively in habeas cases. See Luurtsema v. Commissioner of Correction, 299 Conn. 740, 764, 12 A.3d 817 (2011).
In 2016, following several prior unsuccessful habeas petitions,[4] the petitioner filed the underlying habeas petition as a self-represented party. The court appointed counsel to represent the petitioner, and counsel filed an amended petition on January 27, 2020. In the amended petition, the petitioner alleged that (1) his convictions for kidnapping and conspiracy to commit kidnapping in the Ansonia cases violated his rights to due process under the federal and state constitutions because the court did not provide the jury with an incidental restraint instruction pursuant to State v. Salamon, supra, 287 Conn. 509 (first count), (2) his nolo contendere pleas in the Bridgeport cases were not knowing, voluntary, or intelligent in light of the subsequent change in the law announced in Salamon (second count), and (3) his convictions in the Bridgeport cases are illegal due to the ineffective assistance of his prior habeas counsel in failing to raise the Salamon claims asserted in the first and second counts (third count).
In August, 2020, the petitioner moved for summary judgment on the first count of the petition and filed an amended memorandum of law in support of the motion on January 25, 2021. In connection with his motion, the petitioner submitted several exhibits, which included excerpts from transcripts of the trial in the Ansonia cases. The petitioner claimed that a Salamon instruction was required in the Ansonia cases and that the failure to provide one was not harmless error. On January 25, 2021, the respondent filed an objection to the motion for summary judgment and a supporting memorandum of law, claiming that the Salamon error was harmless.
The court held a hearing on the motion for summary judgment on January 26, 2021. After hearing from both sides, the court took the matter under advisement and asked the petitioner's counsel how much time he would need for a trial on the remaining two counts of the petition. At that point, counsel for the respondent indicated that she intended to file a motion for summary judgment as to the second count of the petition. After a brief discussion, the parties agreed that, on March 26, 2021, the court would hear the respondent's motion for summary judgment on the second count of the petition and would allow the petitioner to present evidence in support of the third count alleging ineffective assistance of prior habeas counsel.
On March 3,2021, the respondent moved for summary judgment as to the second count of the petition. In his memorandum of law in support of the motion, the respondent claimed that the petitioner is not entitled to the retroactive application of Salamon to his conditional nolo contendere pleas. The respondent submitted transcripts of the petitioner's plea and sentencing hearings in the Bridgeport cases as exhibits in support of the motion. The petitioner filed an objection to the motion and an accompanying memorandum of law on March 25,2021. On March 26,2021, the parties appeared before the court. The court began by allowing the petitioner to testify in support of the petition before hearing argument on the respondent's motion for summary judgment. The petitioner was the only witness to testify. After the petitioner rested, the court heard argument on the respondent's motion for summary judgment and took the matter under advisement.
On July 26, 2021, the habeas court issued a memorandum of decision granting the petition as to the first count and denying the petition as to the second and third counts. The court determined that the...
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