Luurtsema v. Comm'r Of Correction

• Decision Date: 05 January 2011
• Docket Number: SC 18383
• Court: Connecticut Supreme Court
• Parties: PETER LUURTSEMA v. COMMISSIONER OF CORRECTION

PETER LUURTSEMA v. COMMISSIONER OF CORRECTION

SC 18383

Supreme Court of Connecticut

Argued September 21, 2010

Officially released January 5, 2011^*

The "officially released" date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ''officially released'' date appearing in the opinion. In no event will any such motions be accepted before the ''officially released'' date.

All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative.

The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.

Rogers, C. J., and Katz, Palmer, McLachlan, Eveleigh and Vertefeuille, Js.

Adele V. Patterson, senior assistant public defender,

with whom was Jennifer L. Bourn, assistant public defender, for the appellant (petitioner).

Jo Anne Sulik, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Dennis J. O'Connor, senior assistant state's attorney, for the appellee (respondent).

Jamie L. Mills, Sarah LeClair, Susanna Cowen and Margaret Garvin filed a brief for the National Crime Victim Law Institute et al. as amici curiae.

Opinion

ROGERS, C. J. The primary issue in this matter is whether this court's decisions in State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), and State v.Sansever-ino, 287 Conn. 608, 949 A.2d 1156 (2008), overruled in part by State v. DeJesus, 288 Conn. 418, 437, 953 A.2d 45, superseded in part after reconsideration byState v. Sanseverino, 291 Conn. 574, 969 A.2d 710 (2009), ¹ apply retroactively to collateral attacks on final judgments. In those cases, we concluded that General Statutes § 53a-92 (a) (2) (A)² does not impose liability for the crime of kidnapping where the restraint used is merely incidental to the commission of another offense. The petitioner, Peter Luurtsema, subsequently filed a petition for a writ of habeas corpus in the Superior Court, challenging, inter alia, the legality of his 2000 conviction under a prior interpretation of § 53a-92 (a) (2) (A). On the joint stipulation of the petitioner and the respondent, the commissioner of correction (state), the habeas court reserved³ the questions: (1) whether Salamon and Sanseverino apply retroactively in habeas corpus proceedings; and (2) whether those cases apply in the petitioner's case in particular. We answer both questions in the affirmative.⁴

The following relevant facts and procedural history are set forth in our decision on the petitioner's direct appeal from his conviction. See State v. Luurtsema, 262 Conn. 179, 811 A.2d 223 (2002). On February 17, 2000, the petitioner was convicted, after a jury trial, of attempted sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (1), kidnapping in the first degree in violation of § 53a-92 (a) (2) (A), assault in the second degree in violation of General Statutes § 53a-60 (a) (1), and, following a plea of nolo contendere, of being a persistent dangerous felony offender under General Statutes (Rev. to 1997) § 53a-40 (a). Id., 181-82. The trial court imposed a total effective sentence of forty-five years imprisonment, comprising concurrent prison terms of twenty years for attempted sexual assault in the first degree and forty years for kidnapping in the first degree as a persistent dangerous felony offender, with a consecutive prison term of five years for assault in the second degree. The enhanced kidnapping sentence thus increased the petitioner's effective sentence from twenty-five to forty-five years.⁵ Id., 182 and n.7.

On direct appeal to this court, the petitioner argued, inter alia, that the evidence presented at trial was insufficient to convict him of kidnapping. We noted that the jury reasonably could have found the following facts: ''Onthe evening of April 21, 1998, the [petitioner] visited the victim at her apartment in Manchester. During the course of the night, the [petitioner] and the victim consumed several beers and smoked crack cocaine. At some point prior to midnight, the victim consented tooral sex from the [petitioner]. At approximately 1 a.m., Larry Brown, a neighbor, visited the victim in her apartment while the [petitioner] was still there. Outside the presence of the victim, the [petitioner] asked Brown to leave because he wanted to be alone with the victim. Brown complied with the [petitioner's] request. At the time Brown left, he did not observe any marks on the victim's face.

''Shortly after Brown's departure, the [petitioner] and the victim were seated next to each other on the couch. The [petitioner] proceeded to pull the victim to the floor and remove her pants and underpants. While they were on the floor, the [petitioner] forced the victim's legs apart in an extremely harsh manner and began manually choking her to the point where she could no longer breathe. The [petitioner] then got up and moved toward the bathroom, at which time the victim ran screaming from her apartment, naked from the waist down, to a convenience store across the street where the police were summoned.'' Id., 183-84.

The petitioner argued on direct appeal that these facts were insufficient to support the jury's verdict of guilty of kidnapping under § 53a-92 (a) (2) (A) because the movement of the victim—from couch to floor—fell short of what is required for 'abduction.' ''⁶ Id., 200. He further argued that, as a matter of law, the statute does not create additional criminal liability where restraint of a victim is merely incidental to a sexual assault. In rejecting this claim, we reiterated our longstanding interpretation that ''all that is required under the [kidnapping] statute is that the defendant have abducted the victim and restrained her with the requisite intent. See State v.Niemeyer, [258 Conn. 510, 520, 782 A.2d 658 (2001)]. Under the aforementioned definitions, the abduction requirement is satisfied when the defendant restrains the victim with the intent to prevent her liberation through the use of physical force.... Nowhere in this language is there a requirement of movement on the part of the victim. Rather, we read the language of the statute as allowing the restriction of movement alone to serve as the basis for kidnapping....

''[O]ur legislature has not seen fit to merge the offense of kidnapping with other felonies, nor impose any time requirements for restraint, nor distance requirements for asportation, to the crime of kidnapping.... Furthermore, any argument that attempts to reject the propriety of a kidnapping charge on the basis of the fact that the underlying conduct was integral or incidental to the crime of sexual assault also must fail. State v. Vass, 191 Conn. 604, 614, 469 A.2d 767 (1983). The defendant's interpretation of the kidnapping statute is simply not the law in this state.'' (Citations omitted; internal quotation marks omitted.) State v. Luurtsema, supra, 262 Conn. 201-202.

Six years later, however, in State v. Salamon, supra, 287 Conn. 513, we had cause to revisit our interpretation of the kidnapping statutes, General Statutes § 53a-91 et seq. Although we acknowledged that our interpretation of the kidnapping statutes in Luurtsema traced its origins as far back as State v. Chetcuti, 173 Conn. 165, 377 A.2d 263 (1977), ⁷ we nonetheless recognized that ''this court never has undertaken an extensive analysis of whether our kidnapping statutes warrant the broad construction that we have given them.'' State v. Salamon, supra, 524.

Examining the legislative history and general historical backdrop of the statute more closely than we had in the past, we concluded that ''our construction of this state's kidnapping statutes has been overly broad, thereby resulting in kidnapping convictions for conduct that the legislature did not contemplate would provide the basis for such convictions.'' Id., 517. Specifically, we 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. Salamon thus expressly overruled Luurtsema, noting that, in "Luurtsema, we rejected a claim identical in all material respects to the claim that the defendant [raised in Salamon] Id., 513 n.6. Additionally, we observed in Salamon that the prior interpretation of the kidnapping statutes had permitted—if not outright encouraged—prosecutors ''to include a kidnapping charge in any case involving a sexual assault or robbery, '' contrary to the likely intent of the legislature. Id., 544.

In State v. Sanseverino, supra, 287 Conn. 608, a companion case released on the same day as Salamon, we took up a second challenge by a defendant convicted under § 53a-92 (a) (2) (A), this time for conduct incidental to a series of sexual assaults. The defendant in Sanseverino attacked his conviction on constitutional grounds, arguing that § 53a-92 (a) (2) (A) was unconstitutionally vague as applied to his...