Townsend v. Comm'r of Corr.

317 A.3d 1147

226 Conn.App. 313

Timothy TOWNSEND

v.COMMISSIONER OF CORRECTION

(AC 44158)

Appellate Court of Connecticut.

Argued January 11, 2024

Officially Released June 18, 2024

Timothy Townsend, self-represented, the appellant (petitioner).

Brett R. Aiello, assistant state’s attorney, with whom, on the brief, were John P. Doyle, Jr., state’s attorney, and Sean McGuinness, assistant state’s attorney, for the appellee (respondent).

Moll, Cradle and Westbrook, Js.

MOLL, J.

₃₁₅The self-represented petitioner, Timothy Townsend, appeals, following the granting 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, in which he claimed that the ₃₁₆retroactive application of the Deadly Weapon Offender Registry (DWOR) requirement of General Statutes § 54-280a¹ to him renders his underlying guilty plea involuntary. On appeal, the petitioner raises for the first time the precise claim that he is not required to register as a deadly weapon offender because § 54-280a does not apply to him in connection with his 2002 conviction for murder. Exercising our supervisory authority to review this unpreserved claim, we agree and, accordingly, reverse the judgment of the habeas court.

The following facts and procedural history are relevant to our resolution of this appeal. Following events that transpired in 2000, the petitioner was arrested and charged with murder in violation of General Statutes ₃₁₇§ 53a-54a,² carrying a pistol without a permit in violation of General Statutes § 29-35 (a),³ criminal possession of a weapon in violation of General Statutes § 53a-217,⁴ and criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c.⁵ On May 23, 2002, while represented by counsel, the petitioner entered a guilty plea to one count of murder under the Alford doctrine⁶ in ex- change for a sentence of twenty-five years of incarceration, which plea the trial court, Fasano, J., following a canvass, accepted. On August 2, 2002, the court sentenced the petitioner to twenty-five years of incarceration in accordance with the plea agreement, whereupon the state nolled the additional weapons charges. The petitioner did not file a direct appeal from the judgment of conviction.

In August, 2014, the self-represented petitioner commenced the present action by filing a petition for a writ of habeas corpus, in which he claimed (1) ineffective assistance of counsel and (2) "bill of attainder / ex post facto violations duo to the [DWOR]. P.A. 13-3 / 13-220." Thereafter, on October 21, 2014, the law firm of Ruane Attorneys at Law appeared on the petitioner’s behalf as appointed habeas counsel.

₃₁₈On March 1, 2017, the petitioner’s appointed counsel filed a motion to withdraw its appearance. In a memorandum of law accompanying the motion to withdraw, the petitioner’s counsel submitted that it could not pursue the petitioner’s claims in good faith because the claims lacked legal or evidentiary support.⁷ On September 10, 2018, the habeas court, Sferrazza, J., denied the motion to withdraw (Judge Sferrazza’s order). The court stated: "The court agrees that the legal claims as to ineffective assistance of trial and habeas counsel are frivolous. The court also agrees that the [dangerous weapon offender] registration statutes are constitutional. However, it appears that … § 54-280a (a) (2) contains a requirement that a convictee be canvassed as to knowledge of the registration obligations before his guilty plea is accepted. The transcript[s] of the 2002 guilty plea lack reference to this requirement, enacted in 2013."

On December 7, 2018, notwithstanding that he was represented by appointed counsel, the petitioner himself filed a motion titled "motion for pretrial ineffective assistance of counsel," in which he claimed in relevant part that his counsel "insisted] on approaching the [DWOR] claim by making an argument of ex post facto violation, but the [petitioner] insisted] on approaching the [DWOR] claim by making an argument based on the meaning of the statute (i.e., legislative intent)" in an attempt to "keep the claim in unison with [Judge Sferrazza’s order] … that the … statutes are constitutional…. The petitioner simply would offer evidence as to the legislature’s intention to make the statute prospective or retroactive …. [I]f the legislature intended for the statute to be prospective then the current language of … § 54-280a (a) (2) is clear and unambiguous and intended for convictees who plead ₃₁₉guilty on or after the statute’s enactment in 2013, which would exclude the petitioner from the registration requirement and obligations. The petitioner’s … attorney is against making any alternative arguments outside of his ex post facto argument." (Internal quotation marks omitted.) As relief, the petitioner requested that his appointed counsel be replaced with new counsel. A hearing on the petitioner’s motion was held on February 15, 2019, whereupon the court, Newson, J., treating the motion as a motion for the removal of counsel and for replacement counsel, denied the motion. Following the court’s February 15, 2019 ruling, Attorney Dennis V. Mancini of Ruane Attorneys at Law exclusively submitted pleadings and appeared on the petitioner’s behalf for the remainder of the proceedings before the habeas court.

On June 3, 2019, the petitioner, through Mancini, filed an amended petition for a writ of habeas corpus, claiming that § 54-280a as applied to Kim violates guarantees against ex post facto laws and his right to due process under the Connecticut and United States constitutions. On July 29, 2019, the respondent, the Commissioner of Correction, filed a return denying the petitioner’s claimed constitutional violations.

On August 9, 2019, the respondent filed a motion to dismiss the amended habeas petition on the basis that the petitioner had failed to state a claim upon which relief can be granted. At the hearing held by the court, Bhatt, J., on the respondent’s motion to dismiss, Mancini addressed the court and requested leave to file a second amended habeas petition on the basis that "the way [he] drafted the [amended habeas] petition … was not in line with what was in … [Judge Sferrazza’s order]." Specifically, as the court described on the record, "the amended petition as filed d[id] not include the nonfrivolous claim that was identified in [Judge Sferrazza’s order] …. [T]he amended petition … ₃₂₀does not raise th[at] issue." The court subsequently granted the petitioner leave to file a second amended petition and took no action on the motion to dismiss.

Thereafter, on November 7, 2019, the petitioner, through Mancini, filed a one count second amended petition for a writ of habeas corpus (operative petition). In the operative petition, the petitioner alleged that, "[a]s a result of [§ 54-280a], [he] will be required to abide by the [DWOR] upon his release from the Department of Correction." The petitioner alleged that his plea was obtained in violation of his due process rights under the Connecticut and United States constitutions because he was not canvassed when he pleaded guilty to murder in 2002 about the requirement—not yet in effect—that he register as a deadly weapon offender on the DWOR, and, therefore, he did not knowingly and voluntarily enter his plea. The petitioner claimed further that, had he been aware of the registration requirement, he would not have pleaded guilty and would have instead proceeded with a trial. The respondent filed a return on December 27, 2019. The respondent admitted therein, inter alia, the petitioner’s allegation that the petitioner would be subject to the requirements of § 54-280a upon his release. In addition, relying on Ramos v. Commissioner of Correction, 67 Conn. App. 654, 789 A.2d 502, cert. denied, 260 Conn. 912, 796 A.2d 558 (2002), the respondent denied the petitioner’s allegations in support of his claim that his plea was not knowingly and voluntarily made in violation of his constitutional right to due process.

The matter was tried to the court on February 10, 2020. The court heard testimony from the petitioner and admitted four transcripts from his criminal proceedings as full exhibits. During trial, the petitioner testified, inter alia, that he was notified by an unspecified individual that he was subject to the registration ₃₂₁requirement of § 54-280a.⁸ He also testified that he did not think that he would be bound by the DWOR upon his release from custody, "[b]ut [he] was told, yes."

On February 25, 2020, the court issued a memorandum of decision denying the petitioner’s operative petition. The court concluded that the "[f]ailure to advise the petitioner of a collateral consequence … that did not exist at the time he entered that plea" does not violate due process. In addressing the petitioner’s claim predicated on the assertion that the petitioner would not have pleaded guilty had he known of § 54-280a, the court determined that the statute was not punitive in nature and that registration was a collateral consequence of the petitioner’s plea such that the criminal trial court was not constitutionally required to inform the petitioner of the consequences relating to the DWOR. Thereafter, the habeas court granted the petitioner’s petition for certification to appeal, and this appeal followed. Additional facts and procedural history will be set forth as necessary.

On appeal, the petitioner raises for the first time the precise claim that the court improperly denied his operative petition because § 54-280a does not apply to him,⁹ and he seeks a judgment declaring that he is not subject to the DWOR on the basis of his underlying conviction. The petitioner asks that we exercise our ₃₂₂supervisory authority to review his claim. As we explain subsequently in this opinion, the respondent now defers to the interpretation of the statute by the Department of Emergency Services and Public...