Johnson v. Commissioner of Correction, No. 17883.

• Decision Date: 26 February 2008
• Docket Number: No. 17883.
• Court: Connecticut Supreme Court
• Parties: Charles JOHNSON v. COMMISSIONER OF CORRECTION.

941 A.2d 248

285 Conn. 556

Charles JOHNSON v. COMMISSIONER OF CORRECTION.

No. 17883.

Supreme Court of Connecticut.

Argued September 6, 2007.

Decided February 26, 2008.

Mary H. Trainer, special public defender, for the appellant (petitioner).

Jessica Probolus, special deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Linda Howe, senior assistant state's attorney, for the appellee (respondent).

NORCOTT, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

ZARELLA, J.

The principal issue in this appeal is whether a petitioner seeking a writ of habeas corpus who has not moved to withdraw his guilty plea pursuant to Practice Book § 39-27(4),¹ or challenged his plea on direct appeal, is procedurally defaulted from prevailing in a habeas action in which he claims that his trial counsel provided ineffective representation in connection with his plea. The petitioner, Charles Johnson, filed a petition for a writ of habeas corpus, seeking to withdraw his plea under the Alford doctrine² on the ground of ineffective assistance of counsel. The habeas court rendered judgment dismissing in part and denying in part the habeas petition, and denied the petitioner's petition for certification to appeal. On appeal, the petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal and improperly rejected his claims regarding his trial counsel's ineffective representation.

The habeas court made the following findings of fact. The petitioner was charged with two counts of aiding aggravated sexual assault in the first degree in violation of General Statutes §§ 53a-70a (a)(4) and 53a-8, two counts of aiding sexual assault in the first degree in violation of General Statutes §§ 53a-70 (a)(1) and 53a-8, one count of conspiracy to commit sexual assault in the first degree in violation of § 53a-70 (a)(1) and General Statutes § 53a-48, one count of sexual assault in the third degree in violation of General Statutes § 53a-72a (a)(1)(A), one count of aiding sexual assault in the third degree in violation of §§ 53a-72a (a)(1)(A) and 53a-8, one count of aiding burglary in the first degree in violation of General Statutes §§ 53a-101 (a)(2) and 53a-8, and one count of aiding kidnapping in the second degree in violation of General Statutes §§ 53a-94 and 53a-8.

The charges resulted from a complaint of sexual assault by a female prisoner that had occurred on August 18, 1999, while she was being transported to New Haven from the Derby courthouse in a van holding several other inmates, all of whom were male. Upon entering the van in Derby, the victim was handcuffed and placed in a compartment at the rear of the vehicle. En route from Derby, the van stopped at the Milford courthouse, where the petitioner and codefendants Hubert Plummer, Marcus Gregory and David Bridges were picked up and placed in a second compartment located on the same side of the van as the victim.

After the van left the Milford courthouse, Gregory began yelling sexually provocative and threatening remarks at the victim. The victim called out for help to the sheriffs driving the van while the four inmates who were handcuffed in pairs, kicked violently at the gate separating the two compartments. Ultimately, the inmates, each of whom had one free arm, succeeded in forcing the gate open, rushed into the victim's compartment and sexually assaulted her, despite her resistance and continuing cries for help. According to the victim, the petitioner assaulted her by placing his penis against her face and striking her with it, ultimately ejaculating on her hair, glasses and shirt. When they were finished, the inmates returned to the second compartment, shutting the gate behind them.

Immediately following the van's arrival in New Haven, the victim informed court personnel that she had been sexually assaulted by the inmates in the second compartment. Authorities observed the condition of the victim, seized the clothing of all four inmates and took blood and semen samples from the victim and the inmates. DNA testing established that the petitioner's semen was present on the victim's clothing, hair and glasses and on the clothing of Bridges. The police also determined that the metal rods used to secure the gate separating the victim's compartment from that of the four inmates had been bent back as a consequence of forceful kicking.

The petitioner initially was represented by attorney Donald Dakers of the office of the public defender. Dakers was replaced by attorney Gerald Barber³ in the summer of 2000. After receiving the DNA test results, the petitioner admitted to Barber that he had participated in the assault.

On December 11, 2001, the petitioner entered, a guilty plea under the Alford doctrine to two counts of aiding aggravated sexual assault in the first degree, one count of conspiracy to commit sexual assault in the first degree, one count of aiding sexual assault in the third degree; and one count of aiding burglary in the first degree. The trial court advised the petitioner that he faced a maximum term of eighty-five years incarceration and $65,000 in fines for the five counts to which he agreed to plead guilty. Under the plea agreement, however, the court sentenced the petitioner, on February 15, 2002, to a total effective sentence of fifteen years imprisonment followed by ten years special parole. Barber testified at a subsequent hearing before the habeas court that, in light of the DNA test results and other evidence implicating the petitioner in the crimes, he had believed that it was not in the petitioner's best interest to go to trial because he probably would have been convicted and received a lengthy sentence. The petitioner did not advise Barber that he wanted to withdraw his plea at any time prior to the imposition of his sentence, and he did not appeal from the judgment of conviction.

The petitioner filed a pro se petition for a writ of habeas corpus on May 15, 2003, and an amended petition on April 30, 2004, seeking to withdraw his Alford plea on the ground of ineffective assistance of counsel. The petitioner alleged that his trial counsel had not informed him adequately regarding his sentence and its consequences when he agreed to enter his plea (sentencing claim) and had failed to investigate his case adequately (investigation claim). On May 21, 2004, the respondent, the commissioner of correction, filed a return, raising the affirmative defense of procedural default pursuant to Practice Book § 23-30(b)⁴ and asserting that the petitioner had not shown the cause arid prejudice⁵ required under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977),⁶ Jackson v. Commissioner of Correction, 227 Conn. 124, 629 A.2d 413 (1993), and Johnson v. Commissioner of Correction, 218 Conn. 403, 589 A.2d 1214 (1991), to overcome this defect. The petitioner did not file a reply to the respondent's return.

The habeas court held hearings on August 19 and 27, 2004, during which it considered the testimony of several witnesses as well as the relevant court records and trial transcripts. No evidence was presented on the procedural default issue. On November 29, 2004, the court rendered judgment dismissing in part and denying in part the petition for a writ of habeas corpus. In its memorandum of decision, the court concluded that the petitioner's sentencing claim fell within the "ambit" of Practice Book § 39-27 and was procedurally defaulted. The court further concluded that the petitioner had not shown the cause and prejudice required under Barile v. Commissioner of Correction, 80 Conn. App. 787, 789-90, 837 A.2d 827 (relying on Wainwright v. Sykes, supra, 433 U.S. at 87), 97 S.Ct. 2497, cert. denied, 268 Conn. 915, 847 A.2d 310 (2004), to permit habeas review. See Practice Book § 23-31(c) (petitioner must allege cause and prejudice in reply to return to permit review of issue subject to claim of procedural default). With respect to the petitioner's inadequate investigation claim, the habeas court determined, pursuant to the standard applied in considering allegations of ineffective assistance on their merits, that the claim was unsupported by the evidence.⁷

On December 9, 2004, the petitioner filed a petition for certification to appeal from the judgment of the habeas court. The habeas court denied the petition. On April 15, 2005, the petitioner appealed to the Appellate Court. The case was argued before the Appellate Court on January 16, 2007. On April 3, 2007, the Appellate Court filed a request to transfer the appeal to this court pursuant to Practice Book § 65-2.⁸ The court explained that the reason for the requested transfer was the need to decide the question of "whether the habeas petitioner who has not moved to withdraw his plea under Practice Book § 39-26 et seq. is procedurally defaulted from prevailing in a habeas petition where he claims his legal representation was ineffective in connection with his plea." The court further explained that the petitioner's claim on appeal, namely, that there had been no procedural default, required review by this court because there were two conflicting lines of cases dealing with the procedural default rule and that a definitive opinion was necessary to resolve this conflict. We subsequently granted the request to transfer as well as the parties' joint motion for permission to file simultaneous supplemental briefs addressing the matter.

We begin with the applicable standard of review. "Faced with the habeas court's denial of certification to appeal, a petitioner's first burden is to demonstrate that the habeas court's ruling constituted an abuse of discretion." Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). A petitioner may establish an abuse of discretion by demonstrating "that the issues are debatable among jurists of reason [the] court could resolve the issues [in a different manner] ... or ......