Harris v. Commissioner of Correction

• Decision Date: 20 May 2008
• Docket Number: No. 28282.,28282.
• Citation: 947 A.2d 7,107 Conn.App. 833
• Court: Connecticut Court of Appeals
• Parties: Reginald HARRIS v. COMMISSIONER OF CORRECTION.

947 A.2d 7

107 Conn.App. 833

Reginald HARRIS v. COMMISSIONER OF CORRECTION.

No. 28282.

Appellate Court of Connecticut.

Argued March 14, 2008.

Decided May 20, 2008.

Christopher M. Neary, special public defender, for the appellant (petitioner).

Toni M. Smith-Rosario, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Edward R. Narus, senior assistant state's attorney, for the appellee (respondent).

DiPENTIMA, GRUENDEL and STOUGHTON, Js.

GRUENDEL, J.

The petitioner, Reginald Harris, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. He claims that the court improperly concluded that (1) his challenges to the legality of his sentence lacked merit and (2) his trial counsel provided effective assistance. We affirm the judgment of the habeas court.

The facts underlying this habeas appeal are set forth in State v. Harris, 28 Conn. App. 474, 612 A.2d 123, cert. denied, 223 Conn. 926, 614 A.2d 828 (1992). "At about 6:30 p.m. on October 12, 1989, the victim, Timothy Wallace, age eighteen, was walking with a friend, Eugene Finley, on Collins Street in Hartford. As they turned onto Huntington Street, they observed three men on the other side of the street. The three men crossed the street and came up behind the victim and Finley. The victim turned and saw that one of the men had grabbed Finley and was telling Finley to leave the area. As Finley left, one of the men put a gun to the victim's head and another of the men, the shortest one, flicked the victim's glasses off. The man who had put the gun to the victim's head grabbed the victim's arm and ordered him to keep walking. The [petitioner], who was the tallest of the three and wearing a brown trench coat, carried a sawed-off shotgun and a duffel bag. The [petitioner] walked on the victim's right side and the shortest man walked behind. They crossed several intersections and finally stopped in front of 122 Huntington Street. When they stopped, the man who had put the gun to the victim's head told the victim to take off his jacket, which was a green Whalers jacket.¹ The victim complied. The man then ordered the victim to give him his watch and the victim again complied. The man then struck the victim on the nose with the butt of the gun, fracturing the victim's nose and causing him to fall backwards onto the sidewalk. As the victim attempted to get up from the sidewalk, the [petitioner] pushed him back down and struck him in the eye with the shotgun. The shortest man then demanded money and reached into the victim's pocket and removed approximately $54. The [petitioner] then said, `Let me shoot him,' but one of the other men advised against it. The victim was then told to leave at which point he ran to a friend's house.

"Shortly thereafter, the victim notified the police and gave them a description of the three men. Within a short time the police saw three men who fit the description given by the victim. The [petitioner], who was one of the three men spotted, was carrying a shotgun. All three men were taken into custody and the police recovered a sawed-off shotgun, a duffel bag, and a green Whalers jacket from them. The next day, the victim went to the police station where he identified all three men from photographs." Id., at 475-76, 612 A.2d 123.

The petitioner was arrested and charged in separate informations with robbery in the first degree in violation of General Statutes §§ 53a-134(a)(2) and 53a-8, and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134(a)(2) and 53a-48(a) (first information), and possession of a sawed-off shotgun in violation of General Statutes § 53a-211(a) (second information). The charges subsequently were joined, and the petitioner's case was tried in conjunction with those of codefendants Keith Johnson and Duane Saunders. Following trial, the jury found the petitioner guilty on all counts. The court thereafter sentenced the petitioner to a total effective term of twenty-eight years incarceration.

In an amended petition for a writ of habeas corpus, the petitioner claimed that (1) his confinement was illegal for a variety of reasons, (2) his trial counsel provided him ineffective assistance, (3) his appellate counsel provided him ineffective assistance and (4) he was innocent of the crimes of which he was convicted. The latter two claims were withdrawn with prejudice at his habeas trial. The only witness called by the petitioner at that trial was attorney Margaret Levy, his trial counsel. Although the respondent, the commissioner of correction, introduced documentary evidence, she presented no witnesses. In its memorandum of decision, the court concluded that the petitioner had not met his burden of proving ineffective assistance of counsel and that his challenges to the legality of his confinement lacked merit. Accordingly, the court denied the petition.² From that judgment, the petitioner appeals.

I

The petitioner first assails the legality of his confinement. He presents a number of claims in this regard, all of which the court concluded were without merit.³ Specifically, the petitioner alleges that (1) he was illegally convicted of conspiracy to commit robbery in the first degree as an accessory, (2) his conviction violates Wharton's rule, (3) his conviction of robbery in the first degree as an accessory and conspiracy to commit robbery in the first degree violates the prohibition against double jeopardy, (4) he was illegally convicted of possession of a shotgun as an accessory, (5) his consecutive sentences for robbery in the first degree as an accessory and for conspiracy to commit robbery in the first degree are illegal and (6) his sentence on incorrect docket numbers constituted a substantive defect.⁴ His claims are unavailing.

Preliminary, we note the applicable standard of review. "The conclusions reached by the trial court in its decision to dismiss [a] habeas petition are matters of law, subject to plenary review. . . . [When] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record." (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 285 Conn. 556, 566, 941 A.2d 248 (2008). To the extent that factual findings are challenged, "this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous. . . ." (Internal quotation marks omitted.) Santiago v. Commissioner of Correction, 90 Conn.App. 420, 424, 876 A.2d 1277, cert. denied, 275 Conn. 930, 883 A.2d 1246 (2005), cert. denied sub nom. Santiago v. Lantz, 547 U.S. 1007, 126 S.Ct. 1472, 164 L.Ed.2d 254 (2006). "[A] finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Orcutt v. Commissioner of Correction, 284 Conn. 724, 742, 937 A.2d 656 (2007).

A

The petitioner first claims that he was illegally convicted of both robbery in the first degree as an accessory and conspiracy to commit robbery in the first degree as an accessory. To the contrary, the court found that the petitioner was not convicted of conspiracy to commit robbery in the first degree as an accessory. Rather, it stated in its memorandum of decision that the petitioner had been convicted of conspiracy to commit robbery in the first degree under §§ 53a-134(a)(2) and 53a-48(a).⁵ That finding was supported by the testimony of Levy, who stated that the petitioner had not been convicted of conspiracy as an accessory because the jury never was charged that it could find him guilty of conspiracy as an accessory.⁶ The petitioner offered no evidence to contradict that testimony. As such, we cannot conclude that the court's finding was clearly erroneous.

B

The petitioner next contends that his conviction violates Wharton's rule. "Wharton's rule provides that [a]n agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission. . . . The United States Supreme Court has explained the reason for barring convictions of both conspiracy and the crime underlying the conspiracy when the rule applies. Wharton's rule applies only to offenses that require concerted criminal activity, a plurality of criminal agents. In such cases, a closer relationship exists between the conspiracy and the substantive offense because both require collective criminal activity." (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Baker, 195 Conn. 598, 607, 489 A.2d 1041 (1985).

In Baker, the defendant claimed that he could not be convicted of both a substantive offense as an accessory and conspiracy to commit the substantive offense. Our Supreme Court disagreed: "In arguing for the applicability of Wharton's rule, the defendant states that he was not charged with committing the substantive offense of arson in either count. He [was] charged as an accessory in the first count and as a conspirator in the second count. The defendant's mischaracterization of the charges leads him to an erroneous result. There is no such crime as being an accessory; the defendant was charged with the substantive offense of arson. The accessory statute merely provides alternate means by which a substantive crime may be committed. The substantive crime of which the defendant was convicted, arson in the second degree, does not require the participation of two persons for its commission or any type of collective criminal activity. The fact that, as in this instance, two persons were involved in the crime...