Roger B. v. Comm'r of Corr.

• Decision Date: 25 June 2019
• Docket Number: AC 39919
• Citation: 212 A.3d 693,190 Conn.App. 817
• Court: Connecticut Court of Appeals
• Parties: ROGER B. v. COMMISSIONER OF CORRECTION

190 Conn.App. 817

212 A.3d 693

ROGER B.

v.COMMISSIONER OF CORRECTION^*

AC 39919

Appellate Court of Connecticut.

Argued March 21, 2018

And Argued January 8, 2019

Officially released June 25, 2019^**

Deren Manasevit, assigned counsel, for the appellant (petitioner).

James M. Ralls, assistant state's attorney, with whom, on the brief, were David S. Shepack, state's attorney, and Tamara Grosso, assistant state's attorney, for the appellee (respondent).

Lavine, Bright and Pellegrino, Js.

LAVINE, J.

The primary issue in this appeal from the denial of the amended petition for a writ of habeas corpus filed by the petitioner, Roger B., is whether he was denied the effective assistance of counsel at his criminal trial because trial counsel failed to assert a statute of limitations affirmative defense to the criminal charges against him. We conclude that no such deprivation occurred because the petitioner failed to carry his burden to prevail on an ineffective assistance of counsel claim pursuant to the two part test articulated in Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To succeed under Strickland , a petitioner must present evidence that "(1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance." (Emphasis in original.) Johnson v. Commissioner of Correction , 285 Conn. 556, 575, 941 A.2d 248 (2008). The petitioner bears "the burden to prove that his counsel's performance was objectively unreasonable." Eubanks v. Commissioner of Correction , 329 Conn. 584, 598, 188 A.3d 702 (2018). "[A]ctual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice." (Internal quotation marks omitted.) Fisher v. Commissioner of Correction , 45 Conn. App. 362, 366–67, 696 A.2d 371, cert. denied, 242 Conn. 911, 697 A.2d 364 (1997). In the present case, the petitioner not only failed to prove that his counsel's performance was deficient but also failed to demonstrate that he was prejudiced by the alleged deficient performance.¹ A detailed review of this case's tangled procedural history is required to place this decision in its proper context.

This is the petitioner's second appeal challenging the denial of his amended petition for a writ of habeas corpus. In Roger B. v. Commissioner of Correction , 157 Conn. App. 265, 278–80, 116 A.3d 343 (2015), this court reversed in part the judgment of the habeas court, Cobb, J. , and remanded the case with direction to hold a hearing in accordance with State v. Crawford , 202 Conn. 443, 521 A.2d 1034 (1987), regarding the petitioner's claim that his trial counsel rendered ineffective assistance by failing to assert a statute of limitations affirmative defense with respect to the eighteen month delay between the issuance and execution of the warrant for the petitioner's arrest. On remand, the second habeas court, Sferrazza, J. , denied the amended petition, concluding that the petitioner failed to establish that his trial counsel rendered ineffective assistance. Central to its conclusion was the court's determination that Crawford did not apply because the applicable statute of limitations, General Statutes § 54-193a,² had been tolled by General Statutes § 54-193 (c), now § 54-193 (d),³ as a result of the petitioner's relocation outside Connecticut. In a subsequent articulation, the second habeas court found that the petitioner was elusive, unavailable, and unapproachable when he left Connecticut and that he had failed to present evidence that the state could not demonstrate that the delay in executing the warrant was reasonable.

In this certified appeal, the petitioner claims that the second habeas court improperly (1) determined that § 54-193 (d) tolled the statute of limitations in analyzing whether trial counsel rendered ineffective assistance by failing to raise a statute of limitations affirmative defense, (2) concluded that the petitioner was elusive, and unavailable to and unapproachable by the police, (3) concluded that he failed to demonstrate that the state would have been unable to show that the police had acted reasonably in executing the warrant, and (4) rejected his claim of ineffective assistance of counsel. We agree with the petitioner's first two claims but reject the latter two. We, therefore, affirm the judgment of the second habeas court albeit on different grounds.⁴

On direct appeal from the petitioner's underlying criminal conviction, our Supreme Court concluded that the jury reasonably could have found the following facts on the basis of the evidence presented. See State v. Roger B. , 297 Conn. 607, 609, 999 A.2d 752 (2010) (affirming conviction of sexual assault and risk of injury to child). In 1995, the petitioner lived with his girlfriend and her three children, two girls and a boy. Id., at 609, 999 A.2d 752. The girls shared a bedroom, and almost nightly, the petitioner awakened the older of the two and took her to the living room where he sexually assaulted her. Id. In 1996, the petitioner, his girlfriend, and her children moved to a new home. Id., at 610, 999 A.2d 752. In the new home, the petitioner awakened the younger girl, took her to another room, and sexually assaulted her. Id.

The petitioner's girlfriend was institutionalized in the fall of 1999, and the petitioner became the sole caretaker of the children until Department of Children and Families (department) personnel removed them because the petitioner was not one of the children's relatives. Id. In time, the girls were placed together in a foster home. Id. A few months thereafter, the older girl disclosed to her boyfriend, and later to her foster mother, that the petitioner had abused her. Id. When the younger girl told her foster mother that the petitioner had abused her as well, the foster mother reported the allegations to department personnel. Id.

Department personnel reported the girls' allegations of abuse to the New Milford Police Department (police). Roger B. v. Commissioner of Correction , supra, 157 Conn. App. at 272, 116 A.3d 343. On July 17, 2000, Detective James M. Mullin watched a forensic interview of the girls. Id. On August 31, 2000, the petitioner gave Mullin a statement and permission for the police to search his apartment and storage unit. Id. The petitioner left Connecticut approximately five months after he gave the statement to Mullin. Id.

The police completed their investigation in 2000 and discovered no additional evidence between 2000 and 2005. Id. On July 6, 2005 , the police obtained a warrant to arrest the petitioner. Id. When the petitioner left Connecticut, he moved to Indiana, where he had several addresses, including a post office box. He later moved to Alabama where United States marshals found him in November, 2006. Id., at 272–73, 116 A.3d 343. The state's attorney authorized the petitioner's extradition from Alabama, and he was transported to New York. Id. Mullin executed the arrest warrant on January 24, 2007 . Id., at 273, 116 A.3d 343. The petitioner was charged in a substitute information with offenses that occurred on various dates between October 1, 1995, and February 1, 2000. A jury found the petitioner guilty of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), two counts of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A), and three counts of risk of injury to a child in violation of General Statutes § 53-21 (2). In April, 2008, the trial court, Sheldon, J. , sentenced the petitioner to a total effective term of twenty-nine years in prison, execution suspended after twenty-three years, and thirty years of probation. State v. Roger B. , supra, 297 Conn. at 610–11, 999 A.2d 752. The petitioner's conviction was affirmed on direct appeal. Id., at 621, 999 A.2d 752.

The petitioner filed a petition for a writ of habeas corpus on August 21, 2008, and an amended petition on August 25, 2011. Roger B. v. Commissioner of Correction , supra, 157 Conn. at 268–69, 116 A.3d 343. In his amended petition, the petitioner alleged that his trial counsel, Christopher Cosgrove, had rendered ineffective assistance by failing to assert a statute of limitations affirmative defense, among other things. Id., at 269, 116 A.3d 343. The habeas court held an evidentiary hearing on the amended petition and issued a memorandum of decision on August 16, 2013. Id. The habeas court determined that the statute of limitations at issue was § 54-193a, which contains a five year statute of limitations. See footnote 2 of this opinion.

With respect to the performance prong of Strickland and the statute of limitations affirmative defense, the habeas court quoted State v. Crawford , supra, 202 Conn. at 450, 521 A.2d 1034, for the proposition that "[w]hen an arrest warrant has been issued, and the prosecutorial official has promptly delivered it to a proper officer for service, he has done all he can under our existing law to initiate prosecution and to set in motion the machinery that will provide notice to the accused of the charges against him ...." (Internal quotation marks omitted.) Roger B. v. Commissioner of Correction , supra, 157 Conn. App. at 276, 116 A.3d 343. The habeas court found that Cosgrove had "reviewed the statute of limitations issue when he received the case, did the math, and determined that the warrant was executed within the applicable statute of limitations period. Accordingly, he did not act deficiently in not filing a motion to dismiss the charges ...."

As to the prejudice prong of Strickland v. Washington , supra, 466 U.S. at 687, 104 S.Ct. 2052, the habeas court "found that the petitioner [had] failed to provide any...