Henderson v. Comm'r of Corr.

181 Conn.App. 778

189 A.3d 135

Mark HENDERSON

v.COMMISSIONER OF CORRECTION

AC 39493

Appellate Court of Connecticut.

Argued January 18, 2018

Officially released May 8, 2018

Heather Clark, New Haven, assigned counsel, for the appellant (petitioner).

Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Kevin D. Lawlor, state's attorney, and Angela R. Macchiarulo, senior assistant state's attorney, for the appellee (respondent).

Keller, Elgo and Beach, Js.

KELLER, J.

The petitioner, Mark Henderson, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion by denying his petition for certification to appeal on the ground that it was untimely¹ and, in the alternative, on its merits. With respect to the petitioner's claim that the habeas court abused its discretion in its consideration of the merits of the petition, he claims that the court erroneously determined that, by virtue of his unconditional guilty plea, he waived his pretrial claims of ineffective assistance of counsel and claims of structural error related to his right of self-representation. The petitioner also claims that, absent counsel's ineffectiveness and the court's denial of his right to self-representation, he would not have pleaded guilty and would have insisted on exercising his right to a trial. We conclude that the court properly exercised its discretion in denying the petition for certification to appeal and, accordingly, we dismiss the appeal.

The following procedural history underlies the present appeal. In 2011, following the court's acceptance of the petitioner's guilty plea, the petitioner was convicted of robbery in the first degree as a persistent dangerous felony offender in violation of General Statutes §§ 53a–134 (a) (2) and 53a–40 (a) (1) (A) (B) (iv). The court sentenced the petitioner to serve a twenty-year term of incarceration. The petitioner did not file a direct appeal.

In 2013, the petitioner, acting in a self-represented capacity, brought a petition for a writ of habeas corpus. On September 4, 2015, the petitioner, still acting in a self-represented capacity, brought the seven count amended petition that the habeas court denied. The habeas court reasonably interpreted the fifty-eight page amended petition to allege that two of the trial judges who made rulings in his criminal case (Keegan, J. and Iannotti, J. ) deprived the petitioner of his right to due process by (1) refusing to permit him to represent himself; (2) refusing to permit appointed defense counsel, John Drapp, to withdraw his appearance in the case; (3) refusing the petitioner's request to be provided with the services of an investigator at the state's expense; and (4) refusing to recuse themselves from the case. Additionally, the court interpreted the amended petition to allege that Drapp had rendered ineffective assistance by virtue of his (1) declining to prepare and present a defense based on the doctrine of necessity, (2) failing to interview certain witnesses, (3) failing to remove himself as defense counsel, (4) failing to advise him of the sentencing consequences of being convicted as a persistent dangerous felony offender, and (5) failing to advise him with respect to his right to appeal.

In his return, the respondent, the Commissioner of Correction, contested the allegations of ineffective assistance of counsel. With respect to the petitioner's claims of structural error in counts one and two of the amended petition (alleging errors by the court during the pretrial period), the respondent alleged in the alternative that the petitioner had failed to state a claim on which relief could be granted and that the claims were procedurally defaulted because the claims were not raised by the petitioner prior to the habeas proceeding and the petitioner could not demonstrate cause and prejudice to excuse such default. In his reply, the petitioner contested the allegation of procedural default, but did not deny that he had failed to raise the claims at issue by way of a direct appeal or set forth any cause for such failure.

The habeas court conducted a trial, during which the petitioner represented himself. On June 30, 2016, the habeas court rendered judgment denying the petition. The habeas court's memorandum of decision provides in relevant part as follows: "The petitioner was arrested for the armed robbery of a bank. He readily admits robbing the bank. He also acknowledges a lengthy criminal history, including previous bank robberies, which qualified him for treatment as a persistent dangerous felony offender. Attorney David Egan ... was appointed to represent the petitioner [at his criminal trial]. On June 14, 2011, the petitioner requested that Attorney Egan be removed as counsel and that he be permitted to handle his own defense. At Attorney Egan's request, the court appointed Paul Carty to represent the petitioner on September 7, 2011.

"The petitioner continued his quest to represent himself and moved for Judge Arnold to recuse himself. Attorney Carty urged the court to order a competency examination and, pursuant to General Statutes § 54–56d, Judge Arnold granted that request.

"On November 29, 2011, the requisite competency proceeding was held, and Judge Arnold determined that the petitioner was able to understand the nature of the charges against him, the proceedings in which he was involved, and to assist counsel in his own defense. Also, on that date, the petitioner demanded that Attorney Carty withdraw as his attorney. Judge Arnold denied that request and denied a recusal motion.

"On January 12, 2012, the court granted the petitioner's request to appear for himself and, eventually, Attorney Drapp became standby counsel. The petitioner asked for the assistance of an investigator, and Attorney Drapp engaged his customary investigator to help the petitioner. However, the petitioner refused to work with that investigator.

"The petitioner, on April 30, 2012, requested new standby counsel based on a perceived conflict of interest with Attorney Drapp. Judge Keegan discerned no genuine conflict of interest, and denied the motion. Jury selection was scheduled to begin on June 19, 2012. The Office of the Chief Public Defender allowed special public defender Drapp to retain a different investigator.

"On June 7, 2012, Judge Keegan ruled that the petitioner [had] forfeited his right to represent himself based on his persistent misbehavior in the courtroom. Attorney Drapp was then tasked with representing the petitioner in full. Judge Keegan filed a written memorandum [of decision] on June 21, 2012, articulating her decision to revoke the petitioner's opportunity to represent himself.

"In response, the petitioner moved for [for Attorney Drapp to be removed as counsel] and [for] Judge Keegan's recusal. Attorney Drapp also moved to withdraw as counsel. These motions were denied, but the imminent jury trial was postponed.

"Frustrated by these decisions, the petitioner engaged in a hunger strike. In the interim, Attorney Drapp thoroughly familiarized himself with the evidence in the case. Attorney Drapp suggested an emotional distress type of defense, but the petitioner strongly disagreed with that strategy. Instead, he insisted that Attorney Drapp pursue the common-law defense of necessity based on the petitioner's claim that he had to rob a bank to obtain sufficient funds to relocate [the residence of] his mother. He perceived that his past activities as a government informant placed his and her life in danger should the targets of his assistance seek vengeance.

"Attorney Drapp tried, in vain, to convince the petitioner that this doctrine was not a legitimate defense to the armed robbery [that] he conceded he [had] perpetrated. The petitioner obstinately refused to recognize this reality."

After the court set forth legal principles related to the common-law defense of necessity and duress, it concluded that such defenses were not available to the petitioner. The court stated: "[N]o one demanded that the petitioner rob a bank under threat of an imminent use of force against him or his mother. The lack of financial wherewithal to extricate oneself from a vague and generalized fear of possible harm in the unspecified future simply provides no excuse to commit bank robbery under our system of criminal justice. As ardently as the petitioner may wish it were otherwise, Attorney Drapp's refusal to pursue such a fanciful defense was ethically and professionally mandated.

"The petitioner's criminal trial was rescheduled to begin on April 30, 2013. A second competency examination was ordered, and the hearing resulting from that examination took place on April 12, 2013. Judge Iannotti found [that] the petitioner [was] competent to stand trial.

"On April 29, 2013, the petitioner agreed to plead guilty to robbery in the first degree as a persistent dangerous felony offender in exchange for the prosecutor's nolle of other charges and a recommended ceiling of twenty-five years to serve and a floor of the mandatory minimum ten year sentence. On July 16, 2013, Judge Iannotti imposed the twenty year term noted above."

The court proceeded in its analysis to conclude that "[t]he petitioner's claims that pertain to alleged improprieties by the judicial officers or Attorney Drapp that are unrelated to the validity of his guilty plea on April 29, 2013, were forfeited by virtue of that plea of guilty." The court engaged in a significant legal analysis of the waiver issue, observing that "[t]he general rule is that a guilty plea waives all nonjurisdictional defects antecedent to the entering of the plea, including defects asserting constitutional deprivations .... Only defects which implicate the subject matter jurisdiction of the court survive a later valid guilty plea, and defects asserting a lack of personal...