Pereira v. Comm'r of Corr.

176 Conn.App. 762

171 A.3d 105

Ricardo PEREIRA

v.COMMISSIONER OF CORRECTION

AC 39401

Appellate Court of Connecticut.

Argued May 22, 2017

Officially released September 26, 2017

Michael W. Brown, assigned counsel, for the appellant (petitioner).

Sarah Hanna, assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Jo Anne Sulik, supervisory assistant state's attorney, for the appellee (respondent).

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

DiPENTIMA, C.J.

The petitioner, Ricardo Pereira, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his 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 habeas petition and (2) improperly denied his habeas petition. We conclude that the habeas court did not abuse its discretion in denying certification to appeal. Accordingly, we dismiss the petitioner's appeal.

The following facts and procedural history are relevant to our discussion. In March, 2000, the petitioner was convicted of murder in violation of General Statutes § 53a–54a(a) and kidnapping in the first degree violation of General Statutes § 53a–92(a)(2)(A). The court, Espinosa, J., sentenced the petitioner to sixty years incarceration on the murder charge and fifteen years incarceration on the kidnapping charge, with the sentences to be served consecutively, for a total effective sentence of seventy-five years incarceration. This court affirmed his conviction on direct appeal. Statev. Pereira, 72 Conn.App. 545, 805 A.2d 787 (2002), cert. denied, 262 Conn. 931, 815 A.2d 135 (2003).

The petitioner filed his first habeas action on October 24, 2003. Following a trial, the first habeas court denied the habeas petition, and this court dismissed the appeal. Pereirav. Commissioner of Correction, 101 Conn.App. 397, 921 A.2d 665, cert. denied, 283 Conn. 906, 927 A.2d 918 (2007).¹ The petitioner commenced the present habeas action on May 2, 2013, and filed the operative petition on January 21, 2016. The petitioner alleged, inter alia, that his due process rights had been violated as a result of his kidnapping conviction. Specifically, he relied on our Supreme Court's decision in Statev. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), which was released nearly one decade after the petitioner's conviction. He argued that as a result of Salamon's reinterpretation of our kidnapping statutes, his conviction of kidnapping should be vacated.

At the February 2, 2016 habeas trial, the parties agreed that certain documents, mostly transcripts, would be entered into evidence by stipulation in lieu of testimony. The parties further agreed to submit posttrial briefs in lieu of oral argument.² The court, Fuger, J., issued its memorandum of decision on May 12, 2016. It denied the petition for a writ of habeas corpus, concluding that the petitioner was not entitled to a Salamon instruction³ and that even if he was entitled to such an instruction, its absence constituted harmless error. The habeas court subsequently denied the petition for certification to appeal. This appeal followed. Additional facts will be set forth as necessary.

The petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal. After reviewing the record and the applicable law, we conclude that the habeas court's denial of the petition for certification to appeal did not constitute an abuse of discretion. Accordingly, we dismiss the petitioner's appeal.

As an initial matter, we set forth our standard of review. "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 Simmsv. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simmsv. 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.) Sandersv. Commissioner of Correction, 169 Conn.App. 813, 821–22, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904, 156 A.3d 536 (2017) ; see also Bridgesv. Commissioner of Correction, 169 Conn.App. 742, 747, 152 A.3d 71 (2016), cert. denied, 324 Conn. 917, 154 A.3d 1008 (2017).

The claim presented by the petitioner, aptly described by the habeas court as "relatively narrow and focused," is that the absence of the Salamon instruction constituted a violation of his right to due process. In reviewing this issue, we are mindful that the facts found by the habeas court are subject to the clearly erroneous standard of review. Farmerv. Commissioner of Correction, 165 Conn.App. 455, 458, 139 A.3d 767, cert. denied, 323 Conn. 905, 150 A.3d 685 (2016). "The applicability of Salamon and whether the court's failure to give a Salamon instruction was harmless error are issues of law over which our review is plenary." Id., at 459, 139 A.3d 767.

Next, we briefly summarize the evolution of our kidnapping law. At the time of the petitioner's conviction, our Supreme Court had established that "all that is required under the [kidnapping] statute is that the defendant have abducted the victim and restrained her with the requisite intent. ... Under the aforementioned definitions, the abduction requirement is satisfied when the defendant restrains the victim with the intent to prevent her liberation through the use of physical force. ... Nowhere in this language is there a requirement of movement on the part of the victim. Rather, we read the language of the statute as allowing the restriction of movement alone to serve as the basis for kidnapping. ... [O]ur legislature has not seen fit to merge the offense of kidnapping with other felonies, nor impose any time requirements for restraint, nor distance requirements for asportation, to the crime of kidnapping. ... Furthermore, any argument that attempts to reject the propriety of a kidnapping charge on the basis of the fact that the underlying conduct was integral or incidental to the crime of sexual assault also must fail." (Citation omitted; internal quotation marks omitted.) Luurtsemav. Commissioner of Correction, 299 Conn. 740, 745–46, 12 A.3d 817 (2011).

Subsequent to the petitioner's conviction of murder and kidnapping, "our Supreme Court reinterpreted the intent element of our kidnapping statutes. In Statev. Salamon, supra, 287 Conn. at 542, 949 A.2d 1092, it stated: Our legislature, in replacing a single, broadly worded kidnapping provision with a gradated scheme that distinguishes kidnappings from unlawful restraints by the presence of an intent to prevent a victim's liberation, intended to exclude from the scope of the more serious crime of kidnapping and its accompanying severe penalties those confinements or movements of a victim that are merely incidental to and necessary for the commission of another crime against that victim. Stated otherwise, to commit a kidnapping in conjunction with another crime, a defendant must intend to prevent the victim's liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime.

"Our Supreme Court further noted that [w]hen that confinement or movement is merely incidental to the commission of another crime, however, the confinement or movement must have exceeded that which was necessary to commit the other crime. [T]he guiding principle is whether the [confinement or movement] was so much the part of another substantive crime that the substantive crime could not have been committed without such acts .... In other words, the test ... to determine whether [the] confinements or movements involved [were] such that kidnapping may also be charged and prosecuted when an offense separate from kidnapping has occurred asks whether the confinement, movement, or detention was merely incidental to the accompanying felony or whether it was significant enough, in and of itself, to warrant independent prosecution. ... Conversely, a defendant may be convicted of both kidnapping and another substantive crime if, at any time prior to, during or after the commission of that other crime, the victim is moved or confined in a way that has independent criminal significance, that is, the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime." (Internal quotation marks omitted.)

Roblesv. Commissioner of Correction, 169 Conn.App. 751, 754–55, 153 A.3d 29 (2016), cert. denied, 325 Conn. 901, 157 A.3d 1146 (2017). Finally, we note that in Luurtsemav. Commissioner of Correction...