Zollo v. Comm'r of Corr.—dissent

• Decision Date: 26 January 2012
• Docket Number: AC31763
• Court: Connecticut Court of Appeals
• Parties: ZOLLO v. COMMISSIONER OF CORRECTION—DISSENT

ZOLLO

v.COMMISSIONER OF CORRECTION—DISSENT

AC31763

THE COURT OF APPEALS OF THE STATE OF CONNECTICUT

Dated: January 26, 2012

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LAVERY, J., concurring in part and dissenting in part. I agree with part I of the majority's opinion and respectfully disagree with part II. I dissent because I conclude that the trial court improperly granted the motion to dismiss filed by the respondent, the commissioner of correction.

The following facts are relevant to this discussion. In May, 1993, the petitioner, Bruce Zollo, was convicted, following a jury trial, of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), sexual assault in a spousal relationship in violation of General Statutes § 53a-70b, and attempt to commit sexual assault in a spousal relationship in violation of General Statutes §§ 53a-49 (a) and 53a-70b, and sentenced to a total effective term of fifty years incarceration. Zollo v. Commissioner of Correction, 93 Conn. App. 755, 755-56, 890 A.2d 120, cert. denied, 278 Conn. 904, 896 A.2d 108 (2006). The petitioner then filed a petition for a writ of habeas corpus, ''alleging, inter alia, ineffective assistance of counsel at trial because his counsel had failed (1) to investigate the case, (2) to cross-examine the state's witnesses adequately, (3) to conduct an adequate defense, (4) to challenge the admissibility of the state's DNA evidence and (5) to preserve for appeal issues regarding the DNA evidence.'' Id., 756. The habeas court held a trial on the petition on September 23, 2003. At that trial, the assistant state's attorney asked the petitioner about an eighteen year midtrial plea bargain offer from the trial court, Hartmere, J. The petitioner answered that there was no such midtrial offer. Both parties agree that it was then, during the trial on the first habeas petition, that the petitioner first learned that the trial court may have made a midtrial plea bargain offer.¹ The first habeas petition was denied on July 8, 2004. On January 12, 2005, the petitioner filed a motion for rectification. That motion was denied.

Based on the information learned at the first habeas trial, the petitioner filed a second petition for a writ of habeas corpus, alleging that his trial counsel was ineffective because he failed to convey the midtrial plea bargain offer to him. The respondent filed a motion to dismiss the amended second habeas petition, pursuant to Practice Book § 23-29 (2) and (3). Following a hearing on the motion to dismiss, the second habeas court, Nazzaro, J., concluded that the second habeas petition constituted a successive petition and granted the respondent's motion to dismiss. The petitioner appeals from that judgment to this court. Presently, the petitioner purports that the factual predicate on which the assistant state's attorney based her question constitutes ''new evidence not reasonably available at the time of the prior petition'' (new evidence) under Practice Book§ 23-29 (3). If the offer in fact was made, that means that the petitioner's trial counsel failed to communicate to his client a plea bargain offer, which certainly would support the petitioner's claim of ineffective assistance of counsel. Sanders v. Commissioner of Correction, 83 Conn. App. 543, 549-53, 851 A.2d 313, cert. denied, 271 Conn. 914, 859 A.2d 569 (2004); see also H. P. T. v. Commissioner of Correction, 127 Conn. App. 480, 488, 14 A.3d 1047 (2011).

In Sanders, the petitioner, Thomas Sanders, was charged in the underlying criminal matter with robbery in the first degree, conspiracy to commit robbery in the first degree, carrying a pistol without a permit and assault in the first degree. Sanders v. Commissioner of Correction, supra, 83 Conn. App. 544. The state made an initial plea bargain offer for fifteen years incarceration in exchange for guilty pleas in that case and another in which the petitioner also had been charged. Id., 54445. Sanders did not accept that offer. After a trial by jury, Sanders was convicted and received a sentence of fourteen years incarceration. Id., 545. Sanders then brought a petition for a writ of habeas corpus, alleging ineffective assistance of trial counsel for (1) failing to engage meaningfully in plea bargaining and to advise him in a timely manner of the state's position regarding plea negotiations prior to trial, and (2) failing to advise him of his rights to sentence review and appeal. Id., 546. At the habeas trial, the assistant state's attorney who prosecuted Sanders in the underlying criminal matter testified that the state had extended to Sanders a second plea offer of eighteen years incarceration. Id., 545. The second offer included two new pending sexual assault and failure to appear charges in exchange for guilty pleas. Id. The second offer was conveyed during a pretrial conference to Sanders' attorney, who, according to the prosecutor's testimony, left the room and returned shortly and informed him that his client had rejected the offer. Id. Following a trial, Sanders was convicted and sentenced to twenty years incarceration to run consecutively to his prior sentence. Id., 54546. In his habeas petition, however, Sanders alleged that he was never informed of the state's second offer and that he would have accepted it if he had been informed of such an offer. Id., 546. Evidence presented at the habeas hearing demonstrated that the petitioner was not in court when the offer was made. Id. Sanders also testified that he had not been informed of the offer. Id. The habeas court concluded that Sanders had been informed of the second offer but determined that the offer had not been meaningfully explained, and, therefore, that the petitioner's attorney had rendered ineffective assistance. Id. The court also concluded that Sanders was prejudiced by this failure and granted the petition for a writ of habeas corpus. This court agreed with the habeas court and, accordingly, affirmed its judgment. Id., 549-53.

The Sanders court held that a plea bargain offer must be conveyed and meaningfully explained to the defendant and that failure to do so constitutes ineffective assistance of counsel. Similar to Sanders, the petitioner here is claiming that his trial counsel failed to communicate a plea bargain offer to him that, if conveyed, he would have accepted. If the fact finder believes that the petitioner would have accepted the offer, and is therefore prejudiced, then the facts presented here clearly fit within those of Sanders. The petitioner should have an opportunity to research and investigate the issue.

The proper construction of Practice Book § 23-29 (3) is an issue of first impression for the appellate courts of this state. Practice Book § 23-29 provides in pertinent part: ''The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that . . . (3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition

''Initially, we set forth the appropriate standard of review for a challenge to the dismissal of a petition for a writ of habeas corpus when certification to appeal is granted.² The conclusions reached by the trial court in its decision to dismiss [a] habeas petition are matters of law, subject to plenary review. . . . [When] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record. . . .

''[T]wo petitions may be brought on the same legal grounds if the two petitions seek different relief. . . . Successive petitions based on the same legal grounds and seeking the same relief are susceptible to a motion to dismiss. . . . An exception is drawn to this rule if newly discovered facts are the ground of the second petition. ... [A] ground is a sufficient legal basis for granting the relief sought . . . ." (Citations omitted; emphasis added; internal quotation marks omitted.) Smith v. Commissioner of Correction, 122 Conn. App. 637,640-41, 999 A.2d 840 (2010), cert. denied, 300 Conn. 901,12 A.3d 574 (2011). A claim of ineffective assistance of trial counsel in two habeas petitions, for example, constitutes the same ground. See, e.g., id., 642.

''[I]f a previous application brought on the same grounds was denied, the pending application may be dismissed without hearing, unless it states new facts or proffers new evidence not reasonably available...