Chance v. Comm'r of Corr.

184 Conn.App. 524

195 A.3d 422

Noel CHANCE

v.COMMISSIONER OF CORRECTION

AC 39952

Appellate Court of Connecticut.

Argued April 11, 2018

Officially released September 4, 2018

Kinga A. Kostaniak, assigned counsel, for the appellant (petitioner).

Sarah Hanna, assistant state's attorney, with whom, on the brief, were David S. Shepack, state's attorney, and Kelly A. Masi, senior assistant state's attorney, for the appellee (respondent).

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

MIHALAKOS, J.

The petitioner, Noel Chance, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his second amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court (1) abused its discretion in denying his petition for certification to appeal from the denial of his second amended petition, and (2) improperly concluded that he failed to establish that his trial counsel rendered ineffective assistance. We conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal and, accordingly, dismiss the petitioner's appeal.

The following facts and procedural history are relevant to our disposition of the petitioner's appeal. This court's decision in the petitioner's direct appeal in State v. Chance , 147 Conn. App. 598, 83 A.3d 703, cert. denied, 311 Conn. 932, 87 A.3d 580 (2014), sets forth the following facts. "From the spring of 2006 through the summer of 2007, the [petitioner] regularly drove around rural areas of Litchfield County in his pickup truck with his black Labrador retrievers and followed female joggers.... After receiving complaints, police officers talked to the [petitioner] on three separate occasions and warned him that his conduct was alarming female joggers. On March 30, 2007, after receiving one witness' complaint and determining that the license plate number the witness provided was registered to the [petitioner], Troopers Jason Uliano and Cono D'Elia contacted the [petitioner]. When the troopers informed the [petitioner] that his actions were alarming female joggers, the [petitioner] indicated that he understood and said that ‘he would drive somewhere else, he wouldn't do that anymore.’ ...

"On August 11, 2007, the five foot tall, ninety pound, fourteen year old victim in this case was jogging on a secluded road in Litchfield.¹ The [petitioner], who was driving in his truck with his dog, started following the victim. The [petitioner] slowed down and asked her if she wanted a ride. When she refused, the [petitioner] stopped his truck on the side of the road, exited his truck, and chased her. The [petitioner] grabbed her by her ponytail causing her to fall face down on the side of the road. The [petitioner] then engaged in a struggle with the victim that, according to testimony, lasted approximately five minutes. The [petitioner] wrapped his arms around her, touching her breasts, and tried to pick her up. The victim fought back and screamed. The [petitioner] covered her mouth to suppress her screams, told her to shut up, and attempted to pick her up. The victim began ‘heaving,’ unable to catch her breath. The [petitioner] released the victim, backed away, and asked her if she was okay. The victim responded, ‘just leave,’ and, ‘please leave.’ When the [petitioner] turned and walked toward his truck, the victim ran into a wooded area and hid. The victim attempted to call her mother from her cell phone, but was unable to reach her. She then called 911. State troopers arrived at the scene and aided the victim."² (Footnote in original.) Id., at 601–604, 83 A.3d 703.

The state charged the petitioner with kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A) ; kidnapping in the second degree in violation of General Statutes § 53a-94 ; attempt to commit kidnapping in the second degree in violation of General Statutes §§ 53a-94 and 53a-49(a)(2) ; unlawful restraint in the first degree in violation of General Statutes § 53a-95 ; and two counts of risk of injury to a child in violation of General Statutes § 53-21(a)(1) and (2), respectively. See id., at 604, 83 A.3d 703. The petitioner was not charged with assaulting the victim.

A four day jury trial began on August 5, 2008. Following the close of evidence, the trial judge met with the petitioner's trial counsel, Walter D. Hussey, and the prosecutor for the purpose of crafting an appropriate kidnapping instruction that incorporated State v. Salamon , 287 Conn. 509, 949 A.2d 1092 (2008),³ which had been decided by our Supreme Court one month prior to the petitioner's criminal trial. The petitioner's trial counsel and the prosecutor agreed to a kidnapping instruction comprised of language taken directly from Salamon . See id., at 546, 548, 550, 949 A.2d 1092. That instruction provided in relevant part: "If you find that the [petitioner's] restraint of the victim was merely incidental to the [petitioner's] commission of another crime against the victim, that is, assault, then you must find the [petitioner] not guilty of the crime of kidnapping.... The determination of whether an assault took place is for you, the jury, to decide.... If you find that an assault took place, then you must determine whether the restraint was incidental to that assault. In making that determination, you must consider the various relevant [ Salamon ] factors...."

"The jury found the [petitioner] guilty of kidnapping in the second degree, attempted kidnapping in the second degree, unlawful restraint in the first degree, and risk of injury to a child [in violation of § 53-21 (a) (1) ].⁴ The trial court merged the [petitioner]'s conviction ... [of] attempted kidnapping in the second degree, with his conviction ... [of] kidnapping in the second degree. On October 17, 2008, the court imposed a total effective sentence of twenty years of incarceration, execution suspended after eight and one-half years, followed by five years of probation with special conditions." (Footnote added.)

State v. Chance , supra, 147 Conn. App. at 604, 83 A.3d 703. This court affirmed in part and reversed in part the judgment of the trial court on direct appeal.⁵ See id., at 601, 949 A.2d 1092.

On May 16, 2013, the self-represented petitioner filed a petition for a writ of habeas corpus alleging that his trial counsel had rendered ineffective assistance in several respects. On August 26, 2016, the petitioner, represented by appointed counsel, filed the operative second amended petition, claiming that trial counsel rendered ineffective assistance in that he (1) "acquiesced to improper jury instructions regarding kidnapping, in accordance with the relatively new law as stated in [ Salamon ]"; (2) failed to file a motion to suppress incriminating statements that the petitioner made to law enforcement prior to receiving a Miranda⁶ warning; and (3) failed to file a motion to suppress evidence obtained from the seizure of his pickup truck.

The habeas trial was held on September 9, 2016. The habeas court heard testimony from the petitioner, Attorney Hussey and Trooper D'Elia. The petitioner did not present any expert testimony in support of his claims. In a memorandum of decision filed on November 10, 2016, the habeas court denied the petitioner's second amended petition, determining that the petitioner had failed to establish deficient performance or prejudice as to each of his claims. On November 21, 2016, the habeas court denied the petitioner certification to appeal, and this appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal from the denial of his second amended petition for a writ of habeas corpus. We disagree.

As a preliminary matter, we set forth the standard of review that governs our disposition of the petitioner's appeal. "Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden , 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden , 230 Conn. 608, 612, 646 A.2d 126 (1994). First, [the petitioner] must demonstrate that the denial of his petition for certification constituted an abuse of discretion.... Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the merits.... To prove that the denial of his petition for certification to appeal constituted an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further....

"In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous. In other words, we review the petitioner's substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria ... adopted by [our Supreme Court] for determining the propriety of the habeas court's denial of the petition for certification." (Citations omitted; internal quotation marks omitted.) Sanders v. Commissioner of Correction , 169 Conn. App. 813, 821–22, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904, 156 A.3d 536 (2017).

As we discuss more fully in part II of this opinion, because the resolution of the petitioner's underlying claim that trial counsel rendered ineffective assistance involves issues that are not debatable...