Spyke v. Comm'r of Corr.

• Citation: 145 Conn.App. 419,75 A.3d 738
• Decision Date: 03 September 2013
• Docket Number: No. 34634.,34634.
• Parties: Michael SPYKE v. COMMISSIONER OF CORRECTION.
• Court: Appellate Court of Connecticut

145 Conn.App. 419
75 A.3d 738

Michael SPYKE
v.
COMMISSIONER OF CORRECTION.

No. 34634.

Appellate Court of Connecticut.

Argued May 28, 2013.
Decided Sept. 3, 2013.

[75 A.3d 739]

Laljeebhai R. Patel, assigned counsel, for the appellant (petitioner).

James M. Ralls, assistant state's attorney, with whom, on the brief, was Jo Anne Sulik, senior assistant state's attorney, for the appellee (respondent).

DiPENTIMA, C.J., and ALVORD and HARPER, Js.

PER CURIAM.

[145 Conn.App. 421]The petitioner, Michael Spyke, appeals following the denial of his petition for certification to appeal from the judgment dismissing his petition for a writ of habeas corpus, after the court granted the motion for summary judgment of the respondent, the Commissioner of Correction. On appeal, the petitioner claims that the habeas court (1) abused its discretion by denying the petition for certification to appeal, and (2) erred in granting the respondent's motion

[75 A.3d 740]

for summary judgment.¹ We disagree and dismiss the appeal.

The following facts and procedural history are relevant to this appeal and were set forth in this court's 2002 decision on the petitioner's direct appeal, State v. Spyke, 68 Conn.App. 97, 792 A.2d 93, cert. denied, 261 Conn. 909, 804 A.2d 214 (2002). The petitioner was arrested in April, 1998, and charged with murder in violation of General Statutes § 53a–54a, conspiracy to commit murder in violation of General Statutes §§ 53a–48 and 53a–54a, possession of a weapon in a motor vehicle in violation of General Statutes § 29–38, and commission of a class A, B, or C felony with a firearm in violation of General Statutes § 53–202k. Id., at 99, 792 A.2d 93. The petitioner was tried before a jury in December, 1999, and the jury found him guilty of all charges except conspiracy to commit murder. Id., at 100, 792 A.2d 93. The jury was deadlocked on the conspiracy charge, and a mistrial was declared as to that charge. Id.

On direct appeal, the petitioner claimed that the trial court improperly (1) denied his motion to suppress, [145 Conn.App. 422]2) failed to disclose relevant information for cross-examination, (3) barred cross-examination regarding prior misconduct by the arresting officer, (4) coerced the jury to reach a verdict on the accessory to murder charge through its “Chip Smith” charge, and (5) failed to give an instruction that the jury could consider the circumstances under which the petitioner's statement was taken. He also claimed that the state's attorney committed prosecutorial misconduct in her closing argument. Id., at 98–99, 792 A.2d 93. This court affirmed the trial court's judgment of conviction in January, 2002. Id., at 118, 792 A.2d 93.

In January, 2008, the petitioner filed an amended petition for habeas corpus. In his amended petition, the petitioner argued that the trial court improperly read the entire statutory definition of intent from General Statutes § 53a–3² to the jury and that appellate counsel failed to raise the issue on direct appeal. Later in the same month, the respondent filed a motion for summary judgment, arguing that the petitioner's claims in the amended petition were meritless as a matter of law and that the petitioner could not, therefore, establish that his appellate counsel's performance was deficient in failing to raise the claim on direct appeal. The habeas court, Schuman, J., granted the motion in February, 2008. On the same day, the court rendered a judgment of dismissal following the granting of the respondent's motion for summary judgment. Afterward, the petitioner filed a petition for certification to appeal. The habeas court denied the petition in March, 2008.

In March, 2012, the petitioner and the respondent jointly filed a motion for stipulated judgment, [145 Conn.App. 423]requesting that the habeas court render judgment restoring the petitioner's right to file an appeal from the denial of his petition. The habeas court granted the motion. This appeal followed.

“Faced with the habeas court's denial of certification to appeal, a petitioner's first burden is to demonstrate that the habeas court's ruling constituted an abuse

[75 A.3d 741]

of discretion. Abuse of discretion is the proper standard because that is the standard to which we have held other litigants whose rights to appeal the legislature has conditioned upon the obtaining of the trial court's permission.... If the petitioner succeeds...