Vandeusen v. Comm'r of Corr.

212 Conn.App. 427

275 A.3d 215

Sara E. VANDEUSEN

v.COMMISSIONER OF CORRECTION

AC 43895

Appellate Court of Connecticut.

Argued September 9, 2021

Officially released May 10, 2022

James E. Mortimer, assigned counsel, for the appellant (petitioner).

Marcia A. Pillsbury, assistant state's attorney, with whom, on the brief, were Dawn Gallo, state's attorney, and Kelly A. Masi, senior assistant state's attorney, for the appellee (respondent).

Prescott, Alexander and DiPentima, Js.

PRESCOTT, J.

The petitioner, Sara E. VanDeusen, appeals from the judgment of the habeas court, denying her petition for a writ of habeas corpus.¹ On appeal, the petitioner primarily claims that the habeas court improperly concluded that she failed to demonstrate that her trial counsel provided ineffective assistance by neglecting to request a jury instruction setting forth the statutory elements of General Statutes § 53-202k and, more specifically, defining the term "firearm," as used in § 53-202k and defined in General Statutes § 53a-3 (19). She additionally claims on appeal that the habeas court improperly concluded that she failed to demonstrate that her trial counsel provided ineffective assistance by neglecting to request that the court instruct the jury that § 53-202k expressly excludes "assault weapon[s]" from the term "firearm," or otherwise to object to the court's instruction as to § 53-202k. We affirm the judgment of the habeas court denying the petition.

The following facts and procedural history are relevant to the petitioner's claim. The petitioner's underlying conviction stems "from a shooting that occurred on the evening of January 10, 2009, in Torrington at the residence of J.L.,² [J.L.’s] then three year old son, A.S., and [J.L.’s] boyfriend, Gregorio Rodriguez.

"Prior to the shooting, the [petitioner] and J.L. were good friends and had several mutual acquaintances, including the [petitioner's] roommate, Carlos Casiano, as well as Alyssa Ayala and her boyfriend, Charles Knowles. At some point, however, the relationship between J.L. and Ayala became antagonistic because J.L. had a sexual encounter with Knowles in October or November, 2008. Once Ayala had learned of the encounter, she became angry with J.L. and threatened to ‘fuck that bitch up for messing with [her] man ....’ "At the same time, the relationship between Rodriguez and Knowles also became antagonistic. Both were drug dealers, but belonged to two rival gangs. On January 9, 2009, Knowles and Rodriguez engaged in a fistfight at a local pub. As a result of the fight, Knowles suffered a broken facial bone, for which he sought treatment at a hospital the following day.

"At the hospital, Knowles was accompanied by Ayala and Casiano. While waiting at the hospital, the trio discussed going to J.L.’s and Rodriguez’ residence to ‘get back at them.’ Ayala, however, was concerned that neither Knowles nor she herself could participate in a physical altercation.³ Ayala then called the [petitioner] and explained to her the nature and extent of Knowles’ injury.

"The [petitioner] later arrived at the hospital to pick up Ayala and Knowles. Once she had seen the extent of the injury, the [petitioner] offered to fight J.L. instead of having Ayala fight J.L. because, according to the [petitioner], J.L.’s sexual relationships with both Rodriguez and Knowles had instigated the fight at the pub the previous night. Ayala thereafter placed several telephone calls from a private number to J.L.’s residence, trying to ascertain whether she and Rodriguez were there by pretending to be someone else looking for Rodriguez. Having nevertheless recognized Ayala as the caller, J.L. told her that Rodriguez was home and further remarked that [A.S.] was also at home.

"Alarmed by Ayala's calls, J.L. called the [petitioner] and told her that Ayala was ‘trying to start problems ....’ During that conversation, J.L. threatened to ‘kick [Ayala's] ass’ and stated that she had sexual intercourse with Knowles throughout the entire time that Ayala had been dating him. In addition, J.L. gave the [petitioner] her new address, adding that Ayala could come over if she wanted to have an altercation.

"The [petitioner] then called Ayala and relayed to her the essence of her conversation with J.L. and, once again, volunteered to fight in Ayala's stead. Knowles overheard J.L.’s challenge and became ‘mad’ because J.L. had threatened to beat up his pregnant girlfriend. Knowles then called Casiano and asked Casiano to fight Rodriguez. Knowles also told Casiano to come get him at Ayala's residence and to bring the [petitioner] because ‘she was the only one [who] knew where [J.L.] lived ....’ Knowles then mentioned to Casiano that he had a gun. After the call to Casiano, Knowles also called his mother in New York and told her that he would be coming back there.

"Thereafter, Casiano and the [petitioner] picked up Knowles in a green van. Before leaving Ayala's residence, Knowles retrieved a handgun⁴ from a shoe box in a bedroom closet. The trio then headed to J.L.’s residence. On the way to J.L.’s residence, the [petitioner] saw that Knowles was armed. Despite her knowledge of the handgun, after pulling up in front of J.L.’s residence, the [petitioner] called J.L. from her cellular phone and asked her and Rodriguez to come out of the house. Sensing trouble, J.L. refused to come out, hung up the telephone, and turned off the lights in the living room, which was facing the street.

"Once the [petitioner], Casiano, and Knowles realized that J.L. and Rodriguez were not going to come out, Knowles opened the van's door and fired his handgun at the residence. Inside of the residence, Rodriguez and J.L.’s friend, Casey Delmonte, who were watching television in a back bedroom, heard ‘a very loud noise ....’ When Delmonte went to the living room window to investigate, she saw the taillights of a ‘bigger vehicle’ as it drove away. At that time, none of them realized that they had heard the sound of gunshots.

"Later that evening, however, J.L., Rodriguez, and Delmonte discovered that a bullet had pierced the front door window and lodged in a wall separating the entryway and the bedroom where Rodriguez, Delmonte, and A.S. had been watching television at the time of the shooting. The bullet had struck the wall at four feet, two inches above the floor. In addition, it was later discovered that a second bullet had struck a supporting pillar on the front porch of the residence.

"Following the shooting, Knowles directed Casiano and the [petitioner] to dispose of the gun by delivering it to someone in Waterbury. Thereafter, Knowles and Casiano went into hiding, ultimately ending up in New York. Ayala later also joined Knowles in New York. The [petitioner] did not leave Torrington following the shooting. When the [petitioner] was later interviewed by the police in connection with the shooting investigation, she denied any knowledge of the shooting and stated that she could not recall her whereabouts on the night in question. The [petitioner] further stated that she did not know Knowles and that she had not called J.L. on the day of the shooting.

"As a result of the investigation, the [petitioner] was arrested on August 5, 2009, and charged with one count of conspiracy to commit assault in the first degree in violation of [General Statutes] §§ 53a-48 and 53a-59 (a) (1) ; one count of being an accessory to an attempt to commit assault in the first degree in violation of [General Statutes] §§ 53a-59 (a) (1), 53a-49 (a) (2) and 53a-8 ; and one count of risk of injury to a child in violation of [General Statutes] § 53-21 (a) (1). In addition, the state sought to enhance the [petitioner's] sentence on all counts pursuant to § 53-202k.⁵

"Following a trial, the jury found the [petitioner] guilty as charged on all counts. Thereafter, the court sentenced the [petitioner] to ten years incarceration, execution suspended after five years, followed by five years enhancement, pursuant to § 53-202k, on each count, to run concurrently, for a total effective sentence of fifteen years incarceration, suspended after ten years, followed by five years probation." (Footnotes added; footnote in original; footnotes omitted.) State v. VanDeusen , 160 Conn. App. 815, 818–21, 126 A.3d 604, cert. denied, 320 Conn. 903, 127 A.3d 187 (2015).

On direct appeal, the petitioner claimed "that (1) the evidence was insufficient to support her conviction of conspiracy and attempt to commit assault in the first degree, and of risk of injury to a child, (2) the trial court improperly instructed the jury on the elements of conspiracy and attempt to commit assault in the first degree, and (3) the court improperly enhanced her sentence on the counts of conspiracy to commit assault in the first degree and risk of injury to a child pursuant to § 53-202k." Id., at 817, 126 A.3d 604. This court affirmed the judgment of the trial court with respect to the first and the second claims but agreed with the petitioner that the trial court improperly enhanced her sentence on the counts of conspiracy to commit assault in the first degree and risk of injury to a child. Id. Accordingly, this court affirmed the trial court's judgment in part, reversed it in part, and remanded the case to the trial court with direction to vacate the sentence enhancements imposed on counts one and three. See id., at 850, 126 A.3d 604. Because, however, this court's decision did not alter the petitioner's total effective sentence⁶ and there was no evidence that the decision would alter the trial court's original sentencing intent, this court concluded that the petitioner need not be resentenced. See id., at 850–51 n.22, 126 A.3d 604.

On March 10, 2016, the petitioner filed a petition for a writ of habeas corpus. In the operative, amended petition dated September 25, 2018, the petitioner raised four claims. First, she alleged a freestanding sixth amendment claim⁷ that her sentence on her conviction of attempt to commit assault in...