Nogueira v. Comm'r of Corr.

• Decision Date: 11 October 2016
• Docket Number: AC 38119
• Citation: 168 Conn.App. 803,149 A.3d 983
• Parties: Leonardo Nogueira v. Commissioner of Correction
• Court: Connecticut Court of Appeals

168 Conn.App. 803

149 A.3d 983

Leonardo Nogueira

v.Commissioner of Correction

AC 38119

Appellate Court of Connecticut.

Argued April 13, 2016

Officially released October 11, 2016

Sarah Hanna, assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Jo Anne Sulik, supervisory assistant state's attorney, for the appellant (respondent).

Michael W. Brown, for the appellee (petitioner).

DiPentima, C.J., and Mullins and Flynn, Js.

DiPENTIMA, C.J.

The respondent, the Commissioner of Correction, appeals from the judgment of the habeas court granting the petition for a writ of habeas corpus filed by the petitioner, Leonardo Nogueira. On appeal, the issue before this court is whether the habeas court properly determined that the respondent had failed to establish, beyond a reasonable doubt, that the result in the petitioner's 2002 criminal trial for kidnapping in the first degree would have been the same had the criminal trial court applied the interpretation of kidnapping subsequently adopted by our Supreme Court in State v. Salamon , 287 Conn. 509, 949 A.2d 1092 (2008).¹ We disagree with the conclusion of the habeas court, and, accordingly, reverse the judgment granting the petition for a writ of habeas corpus.

The following facts and procedural history are relevant to our discussion. Following a trial to the court, the petitioner was convicted of kidnapping in the first degree in violation of General Statutes § 53a–92(a)(2)(A), sexual assault in the first degree in violation of General Statutes § 53a–70(a)(1), attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a–70(a)(1) and 53a–49(a)(2), assault in the third degree in violation of General Statutes § 53a–61(a)(1) and threatening in violation of General Statutes (Rev. to 1999) § 53a-62 (a) (1). State v. Nogueira , 84 Conn.App. 819, 820, 856 A.2d 423 (2004), cert. denied, 273 Conn. 927, 873 A.2d 1000 (2005). Following the petitioner's conviction, the court, White, J ., sentenced him to thirty-five years incarceration. Id., at 822, 856 A.2d 423.

These criminal charges stemmed from an incident that occurred on November 11, 2000, in Danbury when the victim was attacked by the petitioner at approximately 9 p.m. Id., at 821, 856 A.2d 423. The petitioner grabbed the legs of the victim, dragged her along the sidewalk and forced her into a window well where he sexually assaulted her for two hours. Id. The victim escaped from the window well and fled from the petitioner, who pursued her. Id. She grabbed onto a telephone pole, but the petitioner strangled her, causing her to loosen her grip. Id. He then hauled her between two houses, and kept her in that location for a period of five to ten minutes. The petitioner absconded upon the arrival of the police. Id.² We affirmed the judgment of conviction on direct appeal. Id., at 826, 856 A.2d 423.

Following his conviction and direct appeal, our Supreme Court “issued two watershed decisions pertaining to kidnapping crimes, State v. Salamon , [supra, 287 Conn. 509, 949 A.2d 1092 ], and Luurtsema v. Commissioner of Correction , 299 Conn. 740, 12 A.3d 817 (2011).”

Wilcox v. Commissioner of Correction , 162 Conn.App. 730, 736, 129 A.3d 796 (2016). Stated succinctly, “[p]ursuant to the holdings of these decisions, a defendant who has been convicted of kidnapping may collaterally attack his kidnapping conviction on the ground that the trial court's jury instructions failed to require that the jury find that the defendant's confinement or movement of the victim was not merely incidental to the defendant's commission of some other crime or crimes.” Id.³

The petitioner filed a petition for a writ of habeas corpus alleging ineffective assistance of both his trial and appellate counsel. Following a habeas trial, the court, Nazzaro, J ., issued a memorandum of decision denying the petition. Nogueira v. Warden , Superior Court, judicial district of Tolland, Docket No. CV–06–4001062, 2011 WL 3890968 (July 22, 2011).⁴ The habeas court then denied certification to appeal. We subsequently dismissed the petitioner's appeal. Nogueira v. Commissioner of Correction , 142 Conn.App. 906, 64 A.3d 1289, cert. denied, 309 Conn.App. 902, 68 A.3d 657 (2013).

The petitioner commenced a second habeas action and filed an amended petition for a writ of habeas corpus on April 8, 2015. In count one, the petitioner alleged that his conviction of kidnapping in the first degree violated his right to due process because there was no specific finding by Judge White in his criminal trial that he had intended to prevent the victim's liberation for a longer period of time than was necessary to commit the crime of sexual assault in the first degree. In counts two and three, the petitioner alleged ineffective assistance of his first habeas counsel and his appellate habeas counsel.⁵ The respondent filed an answer and raised the affirmative defense of procedural default as to count one. The petitioner filed a response, arguing that (1) he was not procedurally defaulted and (2) in the alternative, if count one of the petition was subject to a procedural default, then he satisfied the cause and prejudice requirement.

At the habeas trial on May 27, 2015, the parties agreed that the court should consider the “criminal trial transcripts, direct appeal materials, first habeas trial transcripts, and pleadings and the habeas appeal materials as well.” Additionally, the parties agreed that no additional testimony was necessary. Counsel for the petitioner explained that because the petitioner's conviction occurred in a trial to the court, rather than a jury, his claim was not a jury instruction issue, but rather a “Salamon fact-finding issue.”

On June 10, 2015, the court, Cobb, J ., issued its memorandum of decision, concluding that the petitioner's constitutional right to due process was violated as a result of the criminal court's failure to apply the Salamon standard for kidnapping that was made retroactive to habeas proceedings in Luurtsema v. Commissioner of Correction , supra, 299 Conn. 740, 12 A.3d 817. The habeas court granted the petition for a writ of habeas corpus, vacated the petitioner's conviction of kidnapping and remanded the case to the criminal trial court for a new trial on the kidnapping charge.

The habeas court stated the petitioner's claim as follows: “[H]is rights to due process of law pursuant to the fourteenth amendment to the United States constitution and article first, §§ 8 and 9, of the Connecticut constitution were violated because he was convicted of kidnapping absent a finding by the fact finder, in this case the [criminal] trial court, that the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the crime of sexual assault, and other crimes, as now required by State v. Salamon , supra, 287 Conn. 509, 949 A.2d 1092.”

The habeas court stated that it was undisputed in the present case that Judge White, in 2002, had not applied the Salamon standard, which was not part of our law until 2008, in finding the petitioner guilty of kidnapping in the first degree. “In particular, the [criminal] trial court did not consider whether the petitioner intended to move or confine the victim in a way that had independent criminal significance, that is, that the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime, in this case the sexual assaults and other crimes.” The habeas court, therefore, concluded that the petitioner had suffered a violation of his due process rights. It then rejected the respondent's affirmative defense of procedural default.⁶ For a remedy, it followed Luurtsema v. Commissioner of Correction , supra, 299 Conn. 740, 12 A.3d 817, and ordered that the case be returned to the criminal trial court for a new trial on the charge of kidnapping in the first degree. On June 22, 2015, the respondent filed a petition for certification to appeal, which the habeas court granted. This appeal followed. Additional facts will be set forth as necessary.

After this court heard oral argument in the present case, our Supreme Court released its decision in Hinds v. Commissioner of Correction , 321 Conn. 56, 136 A.3d 596 (2016). That decision contains a historical review of the changes to our kidnapping law and establishes the proper test for determining whether the failure to apply the Salamon standard constituted harmless error. Accordingly, a detailed review of Hinds will facilitate our analysis of the respondent's appeal in the case before us.

In Hinds , the court began by noting that the hallmark of the crime of kidnapping “is an abduction, a term that is defined by incorporating and building upon the definition of restraint.” Id., at 66–67, 136 A.3d 596. It then turned to State v. Chetcuti , 173 Conn. 165, 170–71, 377 A.2d 263 (1977), in which the court had rejected the claim that if the abduction and restraint of a victim are merely incidental to another crime, that abduction and restraint cannot support a conviction of kidnapping.

Hinds v. Commissioner of Correction , supra, 321 Conn. at 67, 136 A.3d 596. “The court pointed to the fact that our legislature had declined to merge the offense of kidnapping with sexual assault or with any other felony, as well as its clearly manifested intent in the kidnapping statutes not to impose any time requirement for the restraint or any distance requirement for the asportation.” Id. Despite a number of challenges over the years, our Supreme Court consistently maintained that position with respect to the kidnapping statute. Id., at 67–68, 136 A.3d 596.

In State v. Salamon , supra, 287 Conn. 509, 949 A.2d 1092, however, our Supreme Court reexamined its interpretation of the crime of kidnapping, and reached a conclusion contrary to three decades of its prior holdings. Hinds v. Commissioner of Correction , supra, 321 Conn. at 68, 136 A.3d 596. The court in Salamo...