Moye v. Warden
| Decision Date | 23 October 2019 |
| Docket Number | CV154007160S |
| Court | Connecticut Superior Court |
| Parties | Marcus Moye v. Warden |
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh):Bhatt, Tejas, J.
The petitioner, Marcus Moye, was convicted by a jury of possessing a pistol without a permit and sentenced to five years’ imprisonment. He alleges that he was previously charged with possessing that same weapon on that same day at or about the same time, a charge that was ultimately disposed of without resulting in a conviction via a negotiated plea bargain, and thus his present conviction violates the prohibition against double jeopardy. As explained below, the court agrees that the petitioner’s conviction for possession of a pistol without a permit is constitutionally barred and therefore, the petition is GRANTED in part.
On August 11, 2003, the petitioner was charged by way of information in Docket Number N23N-CR-03-0021331 with criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c, risk of injury to a minor in violation of General Statutes § 53-21, assault in the second degree in violation of General Statutes § 53a-60, reckless endangerment in the first degree in violation of General Statutes § 53a-63, criminal attempt to commit robbery in violation of General Statutes § § 53a-134 and 53a-49, criminal attempt to commit larceny in the second degree in violation of General Statutes § § 53a-123 and 53a-49, carrying a pistol without a permit in violation of General Statutes § 29-35 and criminal use of a firearm in violation of General Statutes § 53a-217 for an offense that occurred on August 3, 2003 (Gore case). He also faced charges in two other docket numbers- N23N-CR-03-0019508 and N06N-CR-01-0504487- that are not relevant to these proceedings. On March 3, 2004, the petitioner, assisted by counsel Attorney Joseph Lopez, entered a plea pursuant to the Alford [1] doctrine, to a substitute information in the Gore case, which charged only one count of risk of injury.2] In Docket Number ending 4487, the petitioner admitted violating his probation. The agreed-upon disposition was a sentence of two years and one day to serve for the risk of injury. The probation in Docket Number ending 4487 was to be terminated. The state announced its intention to nolle the open counts and Docket Number N23N-CR-03-0019508 in which the petitioner was charged with drug offenses. A presentence investigation report (PSI) was waived by both parties and the petitioner was sentenced on that same day by the court, Devlin, J., in accordance with the agreement.
On December 9, 2005, the petitioner was arrested and charged with murder in violation of General Statutes § 53a-54a, criminal use of a firearm in violation of General Statutes § 53a-216, criminal possession of a firearm by a felon in violation of General Statutes § 53a-217 and pistol without a permit in violation of General Statutes § 29-35 in Docket Number NNH-CR-05-0049815 for an incident that also occurred on August 3, 2003 (Brown case). On October 20, 2006, the prosecutor filed the operative two-count substitute information, charging murder and carrying a pistol without a permit. The petitioner elected to be tried by a jury and was ultimately convicted of both counts on November 20, 2006. On February 8, 2007, the trial court, Thompson, J., imposed a sentence of forty-five years’ incarceration on the first count and five years’ incarceration on the second count, to run consecutively, for a total effective sentence of fifty years’ incarceration. He appealed his convictions, which were affirmed by our Appellate Court. State v. Moye, 112 Conn.App. 605, 963 A.2d 690, cert. denied, 291 Conn. 906, 967 A.2d 1221 (2009). He initiated a petition for writ of habeas corpus in 2009, and counsel filed an amended petition on March 18, 2011. In that petition, he alleged ineffective assistance of trial counsel for failing to investigate an alibi defense, call defense witnesses and properly represent him during plea discussions. The petition was denied by the court, Santos, J. On appeal, the petitioner claimed for the first time that his conviction for carrying a pistol without a permit violated double jeopardy and that trial and appellate counsel were ineffective for not raising that issue. Our Appellate Court found the issue to be unpreserved and declined to address it, Moye v. Commissioner of Correction, 147 Conn.App. 325, 81 A.3d 1222 (2013), and our Supreme Court affirmed that conclusion. Moye v. Commissioner of Correction, 316 Conn. 779, 114 A.3d 925 (2015).
The petitioner initiated the present action on April 23, 2015. Counsel filed an amended petition on June 14, 2018, alleging two counts: ineffective assistance of trial counsel, Attorney Lawrence Hopkins and ineffective assistance of prior habeas counsel, Attorney Laljeebhai Patel. The crux of his allegation against both is the same: that his conviction for carrying a pistol without a permit violates double jeopardy and neither counsel pursued that legal defense either in the trial court or in the habeas court. The respondent filed a return denying the allegations and subsequently amended its return to allege the special defense that the claim of ineffective assistance of trial counsel should not be reviewed on the merits because the present petition is a "successive petition." The petitioner filed a motion seeking summary judgment in his favor on September 10, 2018, which was denied by the habeas corpus court, Newson, J. A trial followed, at which the petitioner presented the testimony of Attorneys Hopkins and Patel. The parties submitted exhibits and filed posttrial briefs. The parties appeared before the court for additional argument on October 9, 2019.
On August 3, 2003, between 7 p.m. and 8 p.m., Marvin Gore was robbed at gunpoint in front of 240 Winthrop Avenue in New Haven, CT. The suspect was riding a green mountain bike. Gore described the suspect as having a heavy build, short, wearing a black Seattle Sonics shirt which had the number six in white lettering on it. The suspect, who was later identified as the petitioner, reached into his own pocket and removed a revolver. The petitioner then asked Gore to remove everything from his pockets. Gore said he did not have anything, at which point the petitioner hit Gore in the head with the revolver, causing Gore to fall down. Gore ran away from the scene. In discussing the incident with his friends the next day, Gore was informed that "Fat Mark" from the Newhallville Crips was responsible for the attempted robbery. Gore knew the petitioner to be known as Fat Mark. Gore reported the incident to police a week later. During his interview with police, Gore identified the petitioner from a photo array.
The petitioner entered an Alford plea to a substituted information charging one count of risk of injury to a minor in relation to the attempted robbery of Gore. In support of the plea the prosecutor stated the following factual basis:
Defense counsel then clarified that the plea was to subsection one of the risk of injury statute and that it was in accordance with his understanding of the plea agreement. During his canvass, Judge Devlin asked whether the petitioner understood that if he accepted the plea bargain, the petitioner would be sentenced "in accordance with this plea bargain that’s been worked out." The court then stated that the agreement calls for "a recommended sentence of two years and one day to be imposed on the file where the risk of injury charged has been substituted ..." The prosecutor subsequently stated that the victim and his mother were aware of this negotiated disposition and were in favor of it in order to spare the victim from testifying. After imposing sentence, the court once more asked the parties if the sentences as imposed reflected the agreement of the parties. Both the prosecutor and defense counsel said yes.
On or about 8 p.m. on August 3, 2003, Joshua Brown was fatally shot in the area of George and Day Streets in New Haven. An officer responding to the scene observed a heavyset black male, wearing a white jersey, on a BMX bicycle, riding away from the scene. While at the scene, the officer questioned Kathy Booker, who informed him that at 8 p.m. she heard a gunshot and saw a heavyset black male, clean shaven, wearing a white jersey with possibly the number six on it, riding a bicycle away from the scene of the shooting. The officer provided Booker’s description to the police dispatcher. Another officer heard the description via the dispatch and observed a man on a bike matching that description. He chased the biker but lost him and eventually found the suspect thirty minutes later, wearing different clothes. That suspect was identified to be the petitioner...
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