Robles v. Comm'r of Corr.

• Decision Date: 20 December 2016
• Docket Number: AC 37686
• Parties: Rolando ROBLES v. COMMISSIONER OF CORRECTION
• Court: Connecticut Court of Appeals

169 Conn.App. 751

153 A.3d 29

Rolando ROBLES

v.COMMISSIONER OF CORRECTION

AC 37686

Appellate Court of Connecticut.

Argued September 12, 2016

Officially Released December 20, 2016

Naomi T. Fetterman, for the appellant (petitioner).

Lisa A. Riggione, senior assistant state's attorney, Meriden, with whom, on the brief, were Gail P. Hardy, state's attorney, and Jo Anne Sulik, supervisory assistant state's attorney, Rocky Hill, for the appellee (respondent).

DiPentima, C.J., and Alvord and Pellegrino, Js.

DiPENTIMA, C.J.

The petitioner, Rolando Robles, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner argues that the habeas court improperly denied his petition because his guilty pleas, made pursuant to the Alford doctrine,¹ were not made knowingly, intelligently and voluntarily as a result of the new interpretation of our kidnapping statutes as detailed in State v. Salamon , 287 Conn. 509, 949 A.2d 1092 (2008), and its progeny. We conclude that the petitioner's specific claim regarding the knowing and intelligent nature of his pleas was not raised to or decided by the habeas court. Accordingly, we decline to review his appellate claim and affirm the judgment of the habeas court.

The following facts and procedural history underlie our discussion. The state charged the petitioner with kidnapping in the first degree in violation of General Statutes § 53a–92(a)(2)(A), attempt to commit kidnapping in the first degree in violation of General Statutes §§ 53a–49 and 53a–92(a)(2)(A) (kidnapping offenses) and sexual assault in the fourth degree in violation of General Statutes § 53a–73a(a)(2). See State v. Robles , 169 Conn.App. 127, 128–29, 150 A.3d 687 (2016). On August 29, 2007, the petitioner appeared before the trial court, Miano, J. , to enter guilty pleas to these charges. Id., at 129, 150 A.3d 687. After some discussion, the court accepted the petitioner's guilty pleas pursuant to the Alford doctrine. Id., at 129–30, 150 A.3d 687.

During the plea proceeding, the prosecutor set forth the following factual bases underlying the charges against the petitioner. "[T]hat's an incident that happened on December 15, 2005, and it was in the area of Sigourney Street and Russ Street. The complainant, the victim, was a seventeen year old female. She was on her way to school at Hartford Public High School when [the petitioner] came up from behind her. He grabbed her and had sexual contact placing his hand on her buttocks area and genital area and that was over her clothing. She was able to push him away.

"He followed her. A short distance later he pulled her by the jacket. He attempted to pull her back behind the apartment building, and these were her words, she was able to break free. Her jacket did rip. And she was able to gain freedom. A later identification was made after she filed this complaint and told family members.

One family member had seen him. And she ultimately positively identified the [petitioner] as the person who had done this to her.

"The next incident ... that happened five days later on December 20, 2005, in the morning hours, 8:40 in the a.m., near the intersection of Capitol Avenue and Laurel Street. This [incident] involved a sixteen year old female. She was walking to school. She observed the [petitioner] following her. He did catch up with her in that area of Capitol Avenue and Laurel Street. He grabbed her from behind and attempted to pull her or drag her into a fenced area. She also fought back and freed herself after a short scuffle with him." (Internal quotation marks omitted.) Id., at 129 n.2, 150 A.3d 687. Following his conviction, the court sentenced the petitioner to fifteen years incarceration, execution suspended after time served, and twenty years of probation.² Id., at 130, 150 A.3d 687.

Following the petitioner's conviction, our Supreme Court reinterpreted the intent element of our kidnapping statutes. In State v. Salamon , supra, 287 Conn. at 542, 949 A.2d 1092, it stated: "Our legislature, in replacing a single, broadly worded kidnapping provision with a gradated scheme that distinguishes kidnappings from unlawful restraints by the presence of an intent to prevent a victim's liberation, intended to exclude from the scope of the more serious crime of kidnapping and its accompanying severe penalties those confinements or movements of a victim that are merely incidental to and necessary for the commission of another crime against that victim. Stated otherwise, 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."

Our Supreme Court further noted that "[w]hen that confinement or movement is merely incidental to the commission of another crime, however, the confinement or movement must have exceeded that which was necessary to commit the other crime. [T]he guiding principle is whether the [confinement or movement] was so much the part of another substantive crime that the substantive crime could not have been committed without such acts .... In other words, the test ... to determine whether [the] confinements or movements involved [were] such that kidnapping may also be charged and prosecuted when an offense separate from kidnapping has occurred asks whether the confinement, movement, or detention was merely incidental to the accompanying felony or whether it was significant enough, in and of itself, to warrant independent prosecution.... Conversely, a defendant may be convicted of both kidnapping and another substantive crime if, at any time prior to, during or after the commission of that other crime, the victim is moved or confined in a way that has independent criminal significance, that is, the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime." (Citations omitted; internal quotation marks omitted.) Id., at 546–47, 949 A.2d 1092.

In January, 2012, the petitioner commenced the present action. On February 21, 2014, the petitioner filed an amended petition for a writ of habeas corpus (operative petition). In count one, he alleged illegal confinement because his conviction for the kidnapping offenses was unconstitutional. Specifically, he argued that § 53a–92 was unconstitutional under both the federal and state constitutions and that our Supreme Court's decisions in Salamon and its progeny³ were subject to retroactive application as set forth in Luurtsema v. Commissioner of Correction , 299 Conn. 740, 12 A.3d 817 (2011).⁴ The petitioner then iterated the general claim that his conviction for the kidnapping offenses was based on a violation of the federal and state constitutions. In count two of the operative petition, the petitioner alleged ineffective assistance of his counsel, Attorney Robert Meredith. There was no allegation in this count that his pleas were not knowing, intelligent and voluntary.

The habeas court conducted a trial on June 30, 2014. Meredith and the petitioner were the only witnesses to testify at the trial. The parties filed posttrial briefs on August 6, 2014. On December 16, 2014, the habeas court, Oliver, J. , issued a written memorandum of decision denying the petition for a writ of habeas corpus. With respect to the claim of illegal confinement, the court rejected the special defense of procedural default advanced by the respondent, the Commissioner of Correction. The court noted that Salamon 's reinterpretation of our kidnapping jurisprudence arose in the context of an improper jury instruction. In an attempt to reconcile the posture of that case with that of the petitioner's guilty pleas, the court determined that "the petitioner would need to establish the probability that not a single reasonable juror, properly instructed as to the elements of kidnapping under Salamon , would have voted to find him guilty of the challenged charges had the case gone to trial."⁵ The court, after reviewing the record, and discrediting the petitioner's testimony,⁶ concluded that at least one juror, properly instructed, would have voted to convict him of the kidnapping charges. The court also rejected the petitioner's ineffective assistance of counsel claim, and denied the petition for a writ of habeas corpus.⁷ On December 23, 2014, the court granted the petition for certification to appeal.

On appeal, the petitioner claims that his pleas to the kidnapping charges were invalid. Specifically, he argues that his pleas were not knowing, intelligent and voluntary because the retroactive application of Salamon required a factual basis,⁸ absent from the record in this case, that he had intended to prevent the liberation of the victims for a longer period of time, or to a greater degree, than that which was necessary to commit the sexual assault. In turn, the respondent argues that, to the extent that the petitioner had raised a due process challenge based on the sufficiency of the evidence, this claim was waived by operation of his guilty plea. The respondent further contends that, to the extent that the petitioner had raised an actual innocence claim, the habeas court properly rejected it.

We conclude that the respondent has misidentified or misinterpreted the petitioner's appellate claim. We further conclude, however, that the claim raised in this appeal was not presented to or decided by the habeas court. As a result, we decline to consider its merits. Accordingly, we affirm the judgment of the habeas court.

A brief discussion of the relevant law on whether a plea was made knowingly, intelligently and voluntarily will facilitate our discussion. "[I]f a defendant's guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void." (Internal quotation marks omitted.) Paulsen v. Manson , 203 Conn. 484, 489, 525 A.2d 1315 (1987) ; see also State v....