Ross v. Comm'r of Corr.

• Decision Date: 17 January 2023
• Docket Number: AC 45062
• Citation: 217 Conn.App. 286,288 A.3d 1055
• Parties: Jermaine ROSS v. COMMISSIONER OF CORRECTION
• Court: Connecticut Court of Appeals

217 Conn.App. 286

288 A.3d 1055

Jermaine ROSS

v.COMMISSIONER OF CORRECTION

AC 45062

Appellate Court of Connecticut.

Argued October 3, 2022

Officially Released January 17, 2023

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

Nathan J. Buchok, deputy assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Jo Anne Sulik, senior assistant state's attorney, for the appellee (respondent).

Bright, C. J., and Prescott and Moll, Js.

BRIGHT, C. J.

Following the granting of certification to appeal, the petitioner, Jermaine Ross, appeals from the judgment of the habeas court denying his second revised, amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly (1) rejected his actual innocence claim, (2) concluded that he failed to establish that standby counsel provided ineffective assistance, and (3) dismissed count two of the habeas petition.¹ We disagree and, accordingly, affirm the judgment of the habeas court.

The habeas court set forth the following relevant factual and procedural background in its memorandum of decision. "The petitioner was the defendant in State v. Ross , Docket No. CR-10-0642126-S, in the judicial district of Hartford. The petitioner was charged with one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), and one count of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A). Although the petitioner was initially represented by two different attorneys prior to trial, he exercised his right to represent himself. The petitioner's first criminal trial proceeded as far as jury deliberations but resulted in a mistrial after the jury was unable to reach a unanimous verdict. After the mistrial, the petitioner was briefly represented by a third attorney, who was discharged, and the petitioner [was assigned] his fourth counsel, Attorney Aaron Romano. The petitioner again invoked his right to represent himself, which was granted [after he was fully canvassed by the court, Dewey, J .], and he proceeded with the assistance of Romano acting in the capacity of standby counsel.

"Jury selection for a second trial commenced with the petitioner representing himself and Romano [acting] as standby counsel. However, after the petitioner indicated on June 4, 2013, that he did not want to proceed with the trial that day, he was ordered removed from the courtroom. Romano took over representation and continued with the jury selection, although the petitioner resumed representing himself before jury selection completed. On January 24, 2014, the state conveyed a plea offer to the petitioner, which he accepted that day. In exchange for pleading guilty to one count of kidnapping in the second degree in violation of General Statutes § 53a-94, the petitioner would receive a total effective sentence of ten years of incarceration, suspended after the service of five years, followed by five years of probation. ... The petitioner pleaded guilty pursuant to the Alford doctrine² and, after a thorough canvass by the court, Alexander, J ., was sentenced in accordance with the plea agreement.

"The prosecutor put the following facts on the record to support the petitioner's guilty plea: ‘[T]his occurred on [November 22, 2009]. The [petitioner] had picked up a woman on Webster Street in Hartford, who admitted to the police that she was working as a [sex worker] at the time. He had lured her into his car with the promise of money in exchange for sex [and] began driving her to another location. Along the way, she changed her mind [and] asked to be brought back to Hartford. He did not follow those wishes [and] took her to Farmington where the other events unfolded.’ ... The court then described to the petitioner the elements of kidnapping in the second degree and canvassed him to determine whether he understood what the state would have to prove at trial. The petitioner acknowledged that he understood the court's explanation." (Citations omitted; footnote in original.)

On May 1, 2014, the petitioner filed the underlying habeas petition as a self-represented party. The court subsequently appointed counsel to represent the petitioner, and assigned counsel filed the operative second revised, amended petition. In the operative petition, which included eight counts, the petitioner alleged that (1) he is actually innocent, (2) his right to due process and his right to counsel were violated by the Department of Correction's having intercepted mail intended for his attorney that contained his defense strategy, (3) his rights to due process and to a fair trial were violated by the prosecutor's alleged Brady³ violation, (4) his right to due process was violated (a) when the criminal proceedings against him continued without his presence after he was removed from the courtroom and standby counsel took over representation, and (b) because the petitioner's decision to plead guilty to kidnapping in the second degree was not made knowingly, intelligently, and voluntarily, as he did not know or understand that sex offender treatment would be a condition of his probation, (5) his right to self-representation was violated, (6) his right to the effective assistance of standby counsel was violated, (7) his right to the effective assistance of counsel was violated constructively, and (8) his right to counsel was violated because his waiver of that right was ineffective.

On June 3, 2019, the respondent, the Commissioner of Correction, pursuant to Practice Book § 23-29, filed a motion to dismiss counts one, two, three, five, six, seven, and the portion of count four involving the continuation of jury selection in the petitioner's criminal trial after he had been removed from the courtroom. On June 25, 2019, the petitioner filed a memorandum of law in opposition to the motion, and the parties appeared in court and argued the motion to dismiss and the opposition thereto on September 5, 2019. At the hearing, the respondent's counsel clarified that she was not moving to dismiss the portion of count four relating to sex offender treatment. Further, habeas counsel represented to the court that he had filed a motion in the petitioner's criminal case requesting that the trial court preclude the imposition of sex offender treatment and stated that the issue would "very likely become moot if this case goes forward ...." The habeas court responded that, until the trial court addressed the pending motion regarding sex offender treatment, "there is nothing for this court to address on that point ...."

Following the hearing, the court, Chaplin, J. , issued a memorandum of decision granting the respondent's motion to dismiss as to counts two, three, five, seven, and the challenged portion of count four pertaining to the petitioner's removal from the courtroom on June 4, 2013,⁴ and denying the motion as to counts one and six. The petitioner subsequently withdrew count eight, and the matter proceeded to trial on count one, in which the petitioner claimed that he was actually innocent, and on count six, in which he alleged ineffective assistance of standby counsel.⁵

A two day habeas trial was held on January 15 and February 4, 2021. In a memorandum of decision filed July 8, 2021, the court, Oliver, J ., denied the petition. The court stated: "The petitioner testified in support of his claims and presented the testimony of former Detective Tracy Enns ... Romano, and Victor Sanchez. The petitioner entered documents, mostly consisting of transcripts, into evidence, as well as a flash drive containing two videos. The respondent entered one exhibit into evidence. The petitioner and the respondent filed posttrial briefs."

The court denied the petitioner's actual innocence claim on the grounds that "the petitioner [had] failed to present any newly discovered evidence that was not available at the time of the criminal proceedings," and that "[t]here [was] no evidence affirmatively establishing that the petitioner did not commit the charged offense and is actually innocent." As to the petitioner's ineffective assistance of counsel claim, the court, quoting State v. Oliphant , 47 Conn. App. 271, 281, 702 A.2d 1206 (1997), cert. denied, 244 Conn. 904, 714 A.2d 3 (1998), found that the claim was "without merit because after deciding to proceed pro se, [the petitioner had] no constitutional right to the effective assistance of counsel in any capacity"; (internal quotation marks omitted); and, because there is no constitutional right to standby counsel, the petitioner could not prove that standby counsel was ineffective. The court further concluded that the petitioner had failed to prove that Romano failed to perform his limited standby counsel duties or that Romano had assumed the role of counsel other than briefly during voir dire of potential jurors. Finally, the court concluded that there was "no other credible evidence that Romano overrode or infringed upon the petitioner's right to represent himself." On July 19, 2021, the petitioner filed a petition for certification to appeal, which the habeas court granted. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The petitioner first claims that the habeas court improperly denied his actual innocence claim. This claim is without merit.

We begin by setting forth the law governing claims of actual innocence and the corresponding standard of review. "Actual innocence, also referred to as factual innocence ... is different than legal innocence. Actual innocence is not demonstrated merely by showing that there was insufficient evidence to prove guilt beyond a reasonable doubt. ... Rather, actual innocence is demonstrated by affirmative proof that the petitioner did not commit the crime. ...

"[T]he proper standard for evaluating a freestanding claim of actual innocence ... is twofold. First, the petitioner must...