Little v. Commissioner of Correction , 177 Conn. App. 337 ( 2017 )

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JERMAINE LITTLE v. COMMISSIONER
OF CORRECTION
(AC 38597)
Lavine, Alvord and Beach, Js.
Syllabus
The petitioner, who had been convicted, on a plea of guilty, of the crime
of kidnapping in the first degree, sought a writ of habeas corpus, claim-
ing, inter alia, that his plea was invalid because, at the time he pleaded
guilty, he was not aware of the additional element of intent, which was
enunciated by our Supreme Court in State v. Salamon (287 Conn. 509)
four years after his conviction. Specifically, he claimed that he did
not know or understand that, as set forth in Salamon, to be guilty of
kidnapping in the first degree, he had to intend to prevent the victim’s
liberation for a longer period of time or to a greater degree than that
which was necessary to commit a separate crime. At trial, the petitioner
had pleaded guilty to kidnapping pursuant to a negotiated plea
agreement, after which the state nolled charges against him of burglary
in the first degree and robbery in the first degree. The habeas court
rendered judgment denying the habeas petition in part and, thereafter,
denied the petition for certification to appeal, and the petitioner appealed
to this court. On appeal, he claimed that Salamon should be applied
retroactively to his case because there is no differentiation between a
conviction obtained after a trial or by way of a guilty plea, and there
was a risk that his conviction did not comport with the due process
requirements for guilty pleas. Held:
1. The habeas court abused its discretion in denying the petition for certifica-
tion to appeal as to the petitioner’s claim that Salamon should apply
retroactively to his conviction; the impact of Salamon on collateral
attacks on final judgments in cases in which the petitioner pleaded
guilty to only the crime of kidnapping has not yet been addressed by
any appellate court of this state and, thus, the question raised by the
petitioner was adequate to deserve encouragement to proceed further,
and this court resolved that issue in a manner different from the way
it was resolved by the habeas court.
2. The petitioner could not prevail on his claim that his guilty plea violated
his right to due process and, thus, was invalid because it was not made
knowingly, intelligently and voluntarily in light of the reinterpretation
in Salamon of the kidnapping statutes: because there was no binding
precedent as to whether Salamon should be applied retroactively to
collateral attacks on a kidnapping conviction when the defendant
pleaded guilty to only that charge pursuant to a plea agreement, in
deciding that issue this court adopted the rule and reasoning of the
plurality opinion in Luurtsema v. Commissioner of Correction (299
Conn. 740), which adopted a general presumption that Salamon applies
retroactively in habeas corpus proceedings, but left open the possibility
that there could be situations in which the traditional rationales underly-
ing the writ of habeas corpus may not favor retroactive application;
moreover, traditional rationales underlying the writ of habeas corpus
did not favor applying Salamon retroactively in the present case, as
there was no risk that the petitioner stood convicted of an act that the
law did not make criminal or that he faced a punishment that the law
could not impose on him, and the state relied sufficiently to its detriment
on our Supreme Court’s interpretation of our kidnapping statutes prior to
Salamon when constructing the terms of the petitioner’s plea agreement
such that applying Salamon retroactively in the present case would
be inappropriate.
3. The petitioner’s claim that, because his guilty plea was invalid and his
conviction had to be vacated, he was entitled to the presumption of
innocence and, thus, was actually innocent of the kidnapping charge,
was not reviewable; although the petitioner raised a claim in his second
habeas petition that he was actually innocent of the kidnapping charge
because he did not intend to prevent the victim’s liberation for a longer
period of time or to a greater degree than that which was necessary to
commit a separate crime, his petition for certification to appeal raised
only a generic claim that he was actually innocent, and the claim on
appeal was never distinctly raised before the habeas court, which, there-
fore, could not have ruled on it in a manner adverse to the petitioner.
Argued May 30—officially released October 17, 2017
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district
of Tolland and tried to the court, Fuger, J.; judgment
denying the petition in part; thereafter, the court denied
the petition for certification to appeal, and the peti-
tioner appealed to this court. Affirmed.
Naomi T. Fetterman, assigned counsel, for the appel-
lant (petitioner).
Rita M. Shair, senior assistant state’s attorney, with
whom were Kevin D. Lawlor, state’s attorney, and, on
the brief, Jo Anne Sulik, supervisory assistant state’s
attorney, for the appellee (respondent).
Opinion
ALVORD, J. The petitioner, Jermaine Little, appeals
following the denial of his petition for certification to
appeal from the judgment of the habeas court denying
his second petition for a writ of habeas corpus (second
habeas petition). He claims that the habeas court (1)
abused its discretion by denying his petition for certifi-
cation to appeal; (2) improperly concluded that his
guilty plea to kidnapping in the first degree was know-
ing, intelligent, and voluntary in light of our Supreme
Court’s subsequent reinterpretation of our kidnapping
statutes in State v. Salamon, 287 Conn. 509, 949 A.2d
1092 (2008); and (3) improperly concluded that he was
not actually innocent of kidnapping in the first degree.
We conclude that the habeas court abused its discretion
by denying the petition for certification to appeal, but
that the habeas court properly denied the petitioner’s
second habeas petition. Accordingly, we affirm the judg-
ment of the habeas court.
The following factual and procedural history is rele-
vant to this appeal. On September 9, 2003, the petitioner
and three other men abducted the victim, Jerry Brown,
at gunpoint as he left his business in Bridgeport. Little
v. Warden, Superior Court, judicial district of Tolland,
Docket No. CV-06-4000949-S, 2008 WL 4415754, *1 (Sep-
tember 15, 2008) (Little I). The men drove up to Brown
in a white Mazda minivan. Id. Three of the men exited
the minivan, forced Brown into his own car, and
demanded his money, threatening to kill him if he did
not comply. Id. When Brown said that his money was
at his house, they drove with Brown to his house in
Shelton. Id. While en route, the minivan pulled alongside
Brown’s car, and the driver motioned the men in
Brown’s car to call him, which they did, using Brown’s
cell phone. Id. When they arrived at Brown’s house, the
men removed approximately $25,000 to $28,000 in cash,
checks, and jewelry from the safe in his bedroom. Id.
Brown reported the incident to the police, provided
a written statement describing the events and his abduc-
tors, and identified the petitioner from a photographic
array as the driver of the minivan and the fourth person
to enter his house. Id., *3 and n.1. The subsequent inves-
tigation revealed that the phone number that Brown’s
abductors had called with his phone while driving to
his house was the petitioner’s phone number and that
the petitioner was known to drive a white Mazda mini-
van. Id., *3. Detectives then interviewed the petitioner
concerning his involvement in the Brown abduction
and robbery. In a signed incident report, Detective Rich-
ard S. Yeomans reported that the petitioner ‘‘admitted
to being involved in the [k]idnapping and [r]obbery
. . . . He stated [Kyle] Glenn, [James] Freelove, and
[Kevin] Harrison went into the house with Brown while
he waited outside in his vehicle.’’ Yeomans further
reported that Freelove had ‘‘admitted to being involved
with the kidnapping and robbery of Jerry Brown in
Shelton. He further stated Jermaine Little, Kevin Har-
rison and Isaac Peoples were the other participants in
the kidnapping and robbery. Freelove stated he and
Harrison were in Beardsley Terrace when Little pulled
up to them and asked if they wanted to do a ‘job’ with
him. Freelove stated Little then went [to] pick up Peo-
ples. . . . Peoples and Little were armed with semi
automatic handguns.’’ Freelove explained that, after
they abducted Brown, he, Harrison and Peoples drove
with Brown in Brown’s car while the petitioner followed
them in his van. Freelove ‘‘stated when they arrived at
Brown’s house they all went into the house including
Little.’’
The petitioner subsequently was charged in state
court with kidnapping in the first degree in violation
of General Statutes § 53a-92 (a) (2) (B),1 burglary in the
first degree in violation of General Statutes § 53a-101,
and robbery in the first degree in violation of General
Statutes § 53a-134 (state case).2 The petitioner was fur-
ther charged in federal court with being a felon in pos-
session of a firearm in violation of 18 U.S.C. § 922 (g)
(1) (federal case).3 Little v. United States, Docket No.
3:05-CV-1674 (MRK), 2006 WL 2361723, *1 (D. Conn.
August 15, 2006). During this time, the petitioner also
had an ongoing state narcotics case, for which he
received a sentence of eight years of imprisonment
while the state and federal cases remained pending.
Although ‘‘[t]he petitioner initially pleaded not guilty
and consistently exhibited an intent to take the case to
trial’’; Little I, supra, 2008 WL 4415754, *2; he ultimately
decided to plead guilty pursuant to separate written plea
agreements with the state and the federal government.
Under the terms of those agreements, the petitioner
agreed to plead guilty to kidnapping in the first degree
in the state case and to being a felon in possession of
a firearm in the federal case. In exchange, the state and
the federal government agreed to recommend to their
respective sentencing courts a sentence of fifteen years
and eight months of imprisonment, and to request that
the state and federal sentences run concurrently. The
parties further agreed that it would be left to the discre-
tion of the sentencing courts whether to run those sen-
tences concurrently with or consecutively to the eight
year sentence that the petitioner had begun serving in
the narcotics case.
On November 29, 2004, the petitioner pleaded guilty
in federal court to being a felon in possession of a
firearm. Little v. United States, supra, 2006 WL 2361723,
*1. On December 22, 2004, the petitioner pleaded guilty
to kidnapping in the first degree. At the beginning of
the plea hearing, the prosecutor informed the court,
Carroll, J., that the petitioner was pleading guilty pursu-
ant to a written plea agreement, and she briefly
explained the terms of that agreement. The prosecutor
then informed the court that ‘‘counsel is telling me [that
the petitioner] again is making clear he wishes to reject
the state’s offer. And if that’s so, I’m just going to ask
that the court make full inquiry so that we don’t later
have a collateral proceeding claiming that his lawyer
didn’t inform him or that he wasn’t aware of these
things.’’ The prosecutor expressed her surprise that the
petitioner would repudiate the plea agreement. She
observed that the petitioner was currently exposed to
a maximum term of imprisonment of sixty-five years
in the state case, that his sentencing exposure would
increase if the state charged him with conspiracy,4 and
that, if the petitioner rejected the plea agreement, the
state could seek a sentence of more than fifteen years
and eight months imprisonment.
The court briefly canvassed the petitioner to ensure
that he understood the terms of his plea agreement,
that he did not have to plead guilty, and that it was his
decision alone whether to plead guilty. After discussing
the matter with trial counsel, the petitioner represented,
through trial counsel, that he was ready to plead guilty.
The petitioner pleaded guilty to kidnapping in the first
degree,5 and the prosecutor recited the factual basis
for the guilty plea6 and reiterated the terms of the
plea agreement.
The court next canvassed the petitioner to ensure
that his plea was knowing, intelligent, and voluntary.
During this canvass, the petitioner confirmed, inter alia,
that he understood the terms of his plea agreement; he
had had enough time to speak with his attorney about
the case; his attorney had explained to him the nature
and elements of kidnapping in the first degree; his attor-
ney had reviewed with him all of the state’s evidence
against him; the prosecutor’s recitation of the facts sup-
porting his guilty plea was ‘‘essentially correct’’; nobody
was threatening or forcing him to plead guilty; and he
was voluntarily pleading guilty because he was in fact
guilty. The court found that the petitioner’s plea was
knowing, intelligent, and voluntary and accepted it.
The petitioner was subsequently sentenced, in accor-
dance with the terms of his plea agreement, to fifteen
years and eight months of imprisonment in the state
case and the federal case, and those sentences were run
concurrently with each other and with the petitioner’s
sentence in the narcotics case. The prosecutor in the
state case further indicated at the sentencing hearing
that she had entered a nolle prosequi with respect to
the petitioner’s remaining charges of burglary in the
first degree and robbery in the first degree.
On February 3, 2006, the petitioner filed his first peti-
tion for a writ of habeas corpus (first habeas petition),
in which he alleged various claims of ineffective assis-
tance of trial counsel.
On July 1, 2008, while the first habeas petition
remained pending, our Supreme Court decided State v.
Salamon, supra, 287 Conn. 517–18, 531, 542, in which
it abrogated thirty years of kidnapping jurisprudence.
Specifically, the court held for the first time that to
convict a defendant of a kidnapping in conjunction with
another crime, the state must prove that the defendant
‘‘intend[ed] 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.’’ Id., 542.
On September 15, 2008, the first habeas court, A.
Santos, J., denied the first habeas petition. Little I,
supra, 2008 WL 4415754, *1. The first habeas court,
in part, rejected the petitioner’s claims of ineffective
assistance of counsel because it concluded that, even
if it presumed that trial counsel rendered deficient per-
formance during the pleading process, the petitioner
failed to prove prejudice. Id., *3. The first habeas court
observed: ‘‘The evidence clearly reveals that the peti-
tioner was present, with a firearm, in Brown’s home
when the robbery took place. It also reveals that the
petitioner drove the rest of the kidnappers to Brown’s
workplace to set up the kidnapping and robbery. . . .
In the absence of any compelling contrary evidence,
this court cannot say that the petitioner would have
been likely to be successful had he chosen to go to
trial. Furthermore, the petitioner faced additional
charges and, if he had chosen to go to trial, would have
been exposed to a total possible sentence of sixty-five
years. It is highly unlikely that he would have obtained
a more favorable result than the fifteen years and eight
months he received under the plea agreement. There
would also be no guarantee that the sentence would
be set up to run concurrently with the federal sentence
he faced, as the plea agreement provided. . . . While
it is clear that the petitioner had previously expressed
a desire to go to trial, the record also reveals that he
made the decision to accept the state’s plea offer know-
ingly, intelligently and voluntarily.’’ (Citations omitted.)
Id., *3–4.
On February 22, 2013, the petitioner initiated this
second habeas action. On June 9, 2015, the petitioner
filed the operative habeas petition. In relevant part, the
petitioner alleged in count one that his guilty plea was
not knowing, intelligent, and voluntary because ‘‘he did
not know or understand that in order to be convicted
of kidnapping in the first degree under § 53a-92 (a) (2)
(B), a criminal defendant needed to intend to restrain
the victim for a longer period of time or to a greater
degree than that which was necessary to commit or
advance the commission of a separate felony’’ (due
process claim). In count four, the petitioner alleged
that he was actually innocent of kidnapping in the first
degree because he ‘‘did not intend to prevent the vic-
tim’s liberation for a longer period of time or to a greater
degree than that which was necessary to commit a
separate crime’’ (actual innocence claim).
On May 2, 2016, a one day trial was held. After hearing
the evidence and argument from the parties, the habeas
court, Fuger, J., issued an oral ruling denying the sec-
ond habeas petition as it pertained to the petitioner’s
due process and actual innocence claims.7 Little v. War-
den, Superior Court, judicial district of Tolland, Docket
No. CV-13-4005250-S, 2016 WL 2935514, *3 (May 2, 2016)
(Little II). On October 29, 2015, the habeas court denied
the petition for certification to appeal. This appeal
followed.
I
The petitioner first claims that the habeas court
abused its discretion when it denied his petition for
certification to appeal. We agree.
‘‘In Simms v. Warden, 229 Conn. 178, 187, 640 A.2d
601 (1994), [our Supreme Court] concluded that . . .
[General Statutes] § 52-470 (b) prevents a reviewing
court from hearing the merits of a habeas appeal follow-
ing the denial of certification to appeal unless the peti-
tioner establishes that the denial of certification
constituted an abuse of discretion by the habeas court.
In Simms v. Warden, 230 Conn. 608, 615–16, 646 A.2d
126 (1994), [our Supreme Court] incorporated the fac-
tors adopted by the United States Supreme Court in
Lozada v. Deeds, 498 U.S. 430, 431–32, 111 S. Ct. 860,
112 L. Ed. 2d 956 (1991), as the appropriate standard
for determining whether the habeas court abused its
discretion in denying certification to appeal. This stan-
dard requires the petitioner to demonstrate that the
issues 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 encourage-
ment to proceed further. . . . A petitioner who estab-
lishes an abuse of discretion through one of the factors
listed above must then demonstrate that the judgment
of the habeas court should be reversed on its merits.
. . . 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 peti-
tioner’s appeal was frivolous. . . .
‘‘The conclusions reached by the trial court in its
decision to dismiss [a] habeas petition are matters of
law, subject to plenary review. . . . [When] the legal
conclusions of the court are challenged, [the reviewing
court] must determine whether they are legally and
logically correct . . . and whether they find support
in the facts that appear in the record. . . . To the extent
that factual findings are challenged, this court cannot
disturb the underlying facts found by the habeas court
unless they are clearly erroneous . . . . [A] finding of
fact is clearly erroneous when there is no evidence in
the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed.’’ (Citations
omitted; emphasis omitted; internal quotation marks
omitted.) Brewer v. Commissioner of Correction, 162
Conn. App. 8, 12–13, 130 A.3d 882 (2015).
Turning to the petitioner’s substantive claims, we
have been unable to locate any case in which either
this court or our Supreme Court has addressed the
impact of Salamon on collateral attacks on final judg-
ments rendered in cases in which the petitioner pleaded
guilty to kidnapping.8 Because such a question has not
yet been addressed by any appellate court of this state,
we conclude that the petitioner’s claims are adequate
to deserve encouragement to proceed further. See
Rodriguez v. Commissioner of Correction, 131 Conn.
App. 336, 347, 27 A.3d 404 (2011) (concluding that claim
deserved encouragement to proceed further when no
appellate case had decided precise issue), aff’d on other
grounds, 312 Conn. 345, 92 A.3d 944 (2014); Small v.
Commissioner of Correction, 98 Conn. App. 389, 391–
92, 909 A.2d 533 (2006), aff’d, 286 Conn. 707, 946 A.2d
1203, cert. denied sub nom. Small v. Lantz, 555 U.S.
975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008). We further
conclude that the habeas court abused its discretion
by denying the petition for certification to appeal
because we have resolved the issues raised by the peti-
tioner in his second habeas petition in a different man-
ner than the habeas court did. Accordingly, the habeas
court abused its discretion when it denied the petition
for certification to appeal. Nonetheless, we affirm the
denial of the second habeas petition on the merits.
II
We next address the petitioner’s due process claim.
The petitioner claims that his guilty plea is invalid
because the record does not demonstrate that at the
time he pleaded guilty he understood that to be guilty
of kidnapping in the first degree he had to ‘‘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.’’ (Emphasis omitted; internal
quotation marks omitted.)
The petitioner is correct that a guilty plea cannot be
considered voluntary in the constitutional sense if the
record reflects that a defendant did not receive ‘‘real
notice of the true nature of the charge against him
. . . .’’ (Internal quotation marks omitted.) State v.
Johnson, 253 Conn. 1, 38, 751 A.2d 298 (2000); accord
Henderson v. Morgan, 426 U.S. 637, 645 n.13, 96 S. Ct.
2253, 49 L. Ed. 2d 108 (1976) (‘‘A plea may be involuntary
either because the accused does not understand the
nature of the constitutional protections that he is waiv-
ing . . . or because he has such an incomplete under-
standing of the charge that his plea cannot stand as an
intelligent admission of guilt. Without adequate notice
of the nature of the charge against him, or proof that
he in fact understood the charge, the plea cannot be
voluntary in this latter sense.’’ [Citation omitted.]).
Stated another way, if the record reveals that neither
the petitioner, nor his counsel, nor the court correctly
understood the essential elements of kidnapping in the
first degree at the time that the petitioner pleaded guilty,
the petitioner’s guilty plea would be constitutionally
invalid. See Bousley v. United States, 523 U.S. 614, 618,
118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998). Moreover,
because the accused’s clear understanding of the nature
of the charge to which he is pleading guilty relates
to the very heart of the protections afforded by the
constitution, such a misunderstanding of the nature of
the charge cannot be harmless. United State v. Bradley,
381 F.3d 641, 647 (7th Cir. 2004); see Henderson v.
Morgan, supra, 644–45 (even if ‘‘the prosecutor had
overwhelming evidence of guilt available’’ and trial
counsel’s advice to plead guilty was sound and wise,
‘‘[the defendant’s] plea cannot support a judgment of
guilt unless it was voluntary in a constitutional sense’’);
see also Bousley v. United States, supra, 618 (‘‘[w]e
have long held that a plea does not qualify as intelligent
unless a criminal defendant first receives ‘real notice
of the true nature of the charge against him, the first
and most universally recognized requirement of due
process’ ’’); State v. Childree, 189 Conn. 114, 119, 454
A.2d 1274 (1983) (‘‘[i]t is axiomatic that unless a plea
of guilty is made knowingly and voluntarily, it has been
obtained in violation of due process and is therefore
voidable’’).
The petitioner’s due process claim depends, however,
on whether Salamon applies retroactively in his case.9
That is, the only reason that the petitioner contends
his guilty plea is invalid is because he was not aware
of the additional element of intent enunciated by our
Supreme Court in Salamon, four years after his convic-
tion was rendered final. As a result, if we conclude that
Salamon does not apply retroactively in the petitioner’s
case, his due process claim necessarily fails as well.
To address this retroactivity issue, it is necessary to
review the unusual history and evolution of our kidnap-
ping jurisprudence. ‘‘Under our Penal Code, the hall-
mark of a kidnapping is an abduction, a term that is
defined by incorporating and building upon the defini-
tion of restraint. . . . In 1977, this court squarely
rejected a claim that, when the abduction and restraint
of a victim are merely incidental to some other offense,
such as sexual assault, that conduct cannot form the
basis of a guilty verdict on a charge of kidnapping. See
State v. Chetcuti, 173 Conn. 165, 170–71, 377 A.2d 263
(1977). The court pointed to the fact that our legislature
had declined to merge the offense of kidnapping with
sexual assault or with any other felony, as well as its
clearly manifested intent in the kidnapping statutes not
to impose any time requirement for the restraint or
any distance requirement for the asportation. Id. On
numerous occasions between that decision and the pre-
sent petitioner’s criminal trial, this court reiterated that
position. . . . The court appeared to leave open the
possibility that there could be a factual situation in
which the asportation or restraint was so miniscule that
a conviction of kidnapping would constitute an absurd
and unconscionable result that would render the statute
unconstitutionally vague as applied. . . . A kidnapping
conviction predicated on the movement of the sexual
assault victim from one room in her apartment to
another, however, was deemed not to constitute such
a result.’’ (Citations omitted.) Hinds v. Commissioner
of Correction, 321 Conn. 56, 66–68, 136 A.3d 596 (2016).
In State v. Luurtsema, 262 Conn. 179, 203–204, 811
A.2d 223 (2002) (Luurtsema I), overruled in part by
State v. Salamon, 287 Conn. 509, 513–14, 949 A.2d 1092
(2008), decided two years before the petitioner pleaded
guilty, our Supreme Court foreclosed the possibility
that there could be a factual situation in which the
movement or restraint of the victim was so miniscule
that a conviction of kidnapping would constitute an
absurd and unconscionable result as a matter of statu-
tory interpretation.10 In that case, the defendant, Peter
Luurtsema, was convicted after a jury trial of kidnap-
ping in the first degree, incidental to an attempted sex-
ual assault and assault, during which he had moved the
victim from a couch to the floor, forced the victim’s
legs apart, and manually choked her while attempting
to perpetrate the sexual assault. Id., 200, 203. On direct
appeal, Luurtsema argued that his movement of the
victim was ‘‘ ‘incidental’ ’’ to the sexual assault and
therefore ‘‘falls short of what is required for ‘abduction’
under the kidnapping statute.’’ Luurtsema I, supra, 200.
Our Supreme Court rejected Luurtsema’s claim, stating
that ‘‘[Luurtsema’s] interpretation of the kidnapping
statute is simply not the law in this state.’’ Id., 202.
The court reiterated that ‘‘all that is required under the
statute is that the defendant have abducted the victim
and restrained her with the requisite intent. . . . Under
the aforementioned definitions [of abduct and restrain],
the abduction requirement is satisfied when the defen-
dant restrains the victim with the intent to prevent her
liberation through the use of physical force.’’ (Citation
omitted.) Id., 201.
Six years later, in Salamon, our Supreme Court revis-
ited and reversed this decades long kidnapping jurispru-
dence. After examining the common law of kidnapping,
the history and circumstances surrounding the promul-
gation of our current kidnapping statutes and the policy
objectives animating those statutes, the court con-
cluded: ‘‘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 libera-
tion, 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.’’
State v. Salamon, supra, 287 Conn. 542. As a result, the
court held that to convict a defendant of a kidnapping
that was perpetrated in conjunction with another crime,
the state must prove that the defendant ‘‘intend[ed] 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.’’ Id.
Following that decision, Luurtsema filed a habeas
petition, challenging the legality of his kidnapping con-
viction. Luurtsema v. Commissioner of Correction, 299
Conn. 740, 743, 12 A.3d 817 (2011) (Luurtsema II).
Pursuant to the joint stipulation of the parties, the
habeas court reserved two questions of law to this
court, which were subsequently transferred to our
Supreme Court: ‘‘(1) whether Salamon and Sansever-
ino11 apply retroactively in habeas corpus proceedings;
and (2) whether those cases apply in the petitioner’s
case in particular.’’ (Footnote added.) Id. In a plurality
opinion, our Supreme Court answered both reserved
questions in the affirmative. Id.
When deciding the retroactivity issue, the threshold
question for our Supreme Court was whether Salamon
represented a change in or a mere clarification of the
law. Id., 749 n.11. ‘‘If a state court deems its new inter-
pretation to be a change, then the application of the
statute to persons who were convicted prior to the
adoption of the new rule would be decided as a matter
of state retroactivity common law. . . . By contrast, if
the court deems the new interpretation to be a mere
clarification of what the law always has meant, then
there is no issue of retroactivity per se. . . . Rather,
the issue becomes whether the state has violated the
petitioner’s due process rights by convicting him under
an incorrect interpretation of the law.’’ (Citations omit-
ted.) Id., 749–50 n.11.
The three justice plurality declined to address ‘‘the
thorny question of whether [Salamon] represented the
sort of clarification of the law for which the federal
constitution requires collateral relief’’; (emphasis in
original) id., 751; by assuming that Salamon constituted
a change in the law and deciding the retroactivity ques-
tion as a matter of state common law. Id., 764 n.21. The
plurality then rejected any per se rule of full retroactiv-
ity; id., 760; and, instead, adopted ‘‘a general presump-
tion in favor of full retroactivity for judicial decisions
that narrow the scope of liability of a criminal statute.’’
Id., 764. The plurality cautioned that this general pre-
sumption ‘‘would not necessarily require that relief be
granted in cases where continued incarceration would
not represent a gross miscarriage of justice, such as
where it is clear that the legislature did intend to crimi-
nalize the conduct at issue, if perhaps not under the
precise label charged. In situations where the criminal
justice system has relied on a prior interpretation of
the law so that providing retroactive relief would give
the petitioner an undeserved windfall, the traditional
rationales underlying the writ of habeas corpus may
not favor full retroactivity.’’ Id. The plurality observed
that ‘‘one can conceive of circumstances in which prose-
cutors rely on a prior interpretation of a statute to
such an extent that retroactive application of a different
subsequent interpretation might not be warranted.’’ Id.,
767. For example, ‘‘[i]f there are cases in which a peti-
tioner was not convicted of the underlying assault, in
reliance on a pre-Salamon interpretation of § 53a-92 (a)
(2) (A), we have left open the possibility that retroactive
relief may not be available.’’ Id., 770.
After adopting this general presumption in favor of
retroactivity, the plurality addressed whether Salamon
should be applied retroactively in the petitioner’s case.
The plurality ‘‘agree[d] with [Luurtsema] that, as a mat-
ter of state common law, Salamon should be afforded
fully retroactive effect in his particular case.’’ Id., 751.
The plurality reasoned: ‘‘This is not a case . . . in
which the state, in selecting the crimes with which to
charge [Luurtsema], can plausibly be said to have relied
to its detriment on the prior interpretation of the kidnap-
ping statutes.’’ Id., 773. ‘‘Here, [Luurtsema] was charged
with every crime for which he might reasonably have
been held liable . . . .’’ Id., 768. That is, ‘‘the record
discloses no indication that the state would have
charged [Luurtsema] differently had it anticipated the
subsequent interpretation of § 53a-92 (a) (2) (A) in Sala-
mon.’’ Id. The plurality further stated that it could not
discern any evidence from the current record ‘‘that
[Luurtsema] intended to restrain the victim more than
was necessary to effect the underlying assault.’’ Id.,
773–74.
Justices Katz, Palmer, and McLachlan each filed con-
curring opinions in which no other justices joined. Jus-
tice Katz ‘‘wholly agree[d] with the plurality’s thoughtful
explanation as to why we should reject the state’s call
to adopt a per se rule against retroactivity and its equally
persuasive rejection of the state’s arguments against
affording relief to [Luurtsema].’’ Id., 791 (Katz, J., con-
curring). She did not agree, however, with the plurali-
ty’s ‘‘novel rule of retroactivity under our common-law
authority, under which habeas courts may decline to
afford relief ‘where it is clear that the legislature did
intend to criminalize the conduct at issue, if perhaps
not under the precise label charged.’ ’’ Id., 775. Instead,
she ‘‘conclude[d] that Salamon clarified the meaning
of our kidnapping statutes’’; id., 785; and, therefore, the
federal due process clause required a per se rule of full
retroactivity for Salamon. Id., 775. She further ‘‘con-
clude[d] that, even if it were necessary to decide this
case under our common-law authority, we should adopt
a per se rule that decisions narrowing the interpretation
of criminal statutes apply retroactively.’’ Id.
Justice Palmer ‘‘agree[d] with much of the plurality
opinion and concur[red] in the result that the plurality
reache[d].’’ Id., 797 (Palmer, J., concurring). He
acknowledged that ‘‘[t]he plurality may be correct that
there is persuasive reason to reject a per se rule, but
we need not resolve the issue to decide the present
case because, as the plurality also concludes, the peti-
tioner . . . is entitled to full retroactivity regardless
of whether we adopt such a rule.’’ Id. Justice Palmer
expressed his reservation at deciding ‘‘the question of
whether to adopt a per se rule in favor of full retroactiv-
ity under our common law’’; id.; because ‘‘this court,
in rejecting a per se rule for purposes of our common
law, adopts a rule that is contrary to constitutional
requirements, a result that should be avoided.’’ Id., 798.
Finally, Justice McLachlan ‘‘concur[red] with the plu-
rality reluctantly.’’ Id., 798 (McLachlan, J., concurring).
He concurred reluctantly because, although he
‘‘agree[d] with the holding of Salamon’’; id.; he ‘‘dis-
agree[d] with that portion of the analysis [in Salamon]
in which the court concluded that for more than thirty
years, and in innumerable cases, the courts of this state,
including this court, have misconstrued our kidnapping
statutes.’’ Id., 799. He agreed with the plurality that
‘‘[i]n Salamon, this court adopted a ‘new rule’ expressly
overruling the law in existence at the time of the peti-
tioner’s crime and conviction.’’ Id. He further stated: ‘‘To
date the United States Supreme Court has not required
‘new’ interpretations of statutes to be applied retroac-
tively in criminal cases, and I would not so provide. . . .
Although I would prefer to follow our long-standing
principle of finality of judgments and would deny the
petitioner the relief that he seeks, I am compelled to
follow the precedent established by Salamon, and,
accordingly, concur in the result.’’ Id.
Because Luurtsema II was a plurality opinion, when
deciding whether Salamon should be applied retroac-
tively in the present case, we must first determine its
precedential value. Our Supreme Court has instructed
that ‘‘[w]hen a fragmented [c]ourt decides a case and
no single rationale explaining the result enjoys the
assent of [a majority of the] [j]ustices, the holding of
the [c]ourt may be viewed as the position taken by
those [m]embers who concurred in the judgments on
the narrowest grounds . . . .’’ (Internal quotation
marks omitted.) State v. Ross, 272 Conn. 577, 604 n.13,
863 A.2d 654 (2005), quoting Marks v. United States,
430 U.S. 188, 193, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977).
It appears that the only parts of the plurality opinion
in Luurtsema II that have any precedential value are the
court’s affirmative answers to the reserved questions
of whether Salamon applies retroactively in habeas
corpus proceedings and to Luurtsema’s case in particu-
lar. See Hinds v. Commissioner of Correction, supra,
321 Conn. 106–107 and n.3 (Zarella, J., dissenting).
Those answers are the narrowest grounds on which a
majority of the panel clearly agreed.
With respect to the first reserved question, although
a majority of the court in Luurtsema II agreed that
Salamon could be applied retroactively in collateral
proceedings, there was no clear majority concerning
how and to what extent Salamon should be applied
retroactively. The three justice plurality adopted a gen-
eral presumption of full retroactivity, subject to certain
limited exceptions, while Justice Katz supported a per
se rule in favor of full retroactivity. Neither Justice
Palmer nor Justice McLachlan expressly endorsed a
particular approach to retroactivity; they concurred
only in the result reached by the plurality.
With respect to the second reserved question, the
facts of the present case are sufficiently distinguishable
from those in Luurtsema II such that the court’s affir-
mative answer to the second reserved question also
does not control the outcome of the present case. The
petitioner was convicted after pleading guilty pursuant
to a plea agreement with the state and federal govern-
ment, and admitting his role in the Brown abduction
and robbery. Luurtsema was convicted after a jury trial
in which the jury was not instructed that, to find him
guilty of kidnapping, it had to find beyond a reasonable
doubt that he intended to prevent the victim’s liberation
for a longer period of time or to a greater degree than
that which was necessary to commit the other crime.
A majority of the court in Luurtsema II further appears
to have agreed that this instructional error was not
harmless beyond a reasonable doubt in light of the facts
and circumstances of Luurtsema’s case.
As a result, there is no binding precedent controlling
the unique issue presently before us: whether Salamon
should be applied retroactively to collateral attacks on
a kidnapping conviction when the defendant pleaded
guilty to that charge, and only that charge, pursuant to
a plea agreement. Having given thorough consideration
to the various approaches endorsed by the justices in
Luurtsema II, we find the reasoning of the plurality of
the court in Luurtsema II to be the most persuasive in
the context of Salamon. As the United States Supreme
Court has observed, one of the reasons that decisions
narrowing the scope of a criminal statute should gener-
ally apply retroactively is ‘‘because [those decisions]
necessarily carry a significant risk that a defendant
stands convicted of an act that the law does not make
criminal or faces a punishment that the law cannot
impose upon him.’’ (Internal quotation marks omitted.)
Schriro v. Summerlin, 542 U.S. 348, 352, 124 S. Ct. 2519,
159 L. Ed. 2d 442 (2004); see also Luurtsema II, supra,
299 Conn. 759 (reasoning general presumption of retro-
activity appropriate because ‘‘considerations of finality
simply cannot justify the continued incarceration of
someone who did not commit the crime of which he
stands convicted’’ and it would be unjust and amount
to judicial usurpation of the legislature to permit defen-
dant to be convicted of ‘‘two crimes where the legisla-
ture intended only one’’). As the present case
exemplifies, however, there are situations where the
traditional rationales underlying the writ of habeas cor-
pus simply do not favor full retroactivity. Therefore,
we adopt the rule and reasoning of the plurality opinion
in Luurtsema II in deciding the issue presently before
us. See Luurtsema II, supra, 751, 758–73.
We next consider whether Salamon should be
applied retroactively to the present case. The petitioner
argues that Salamon should be applied retroactively
because ‘‘there is no differentiation between a convic-
tion obtained as a result of a trial or by way of a plea’’
and because there is a risk that after Salamon, his
conviction does not comport with the due process
requirements for guilty pleas. We are not persuaded.
‘‘Whatever might be the situation in an ideal world,
the fact is that the guilty plea and the often concomitant
plea bargain are important components of this country’s
criminal justice system. Properly administered, they can
benefit all concerned.’’ Blackledge v. Allison, 431 U.S.
63, 71, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977); see also
Statewide Grievance Committee v. Whitney, 227 Conn.
829, 842, 633 A.2d 296 (1993) (‘‘plea discussions [are] not
only an essential part of the [administration of criminal
justice] but a highly desirable part for many reasons’’
[internal quotation marks omitted]). The defendant
avoids extended pretrial incarceration and the anxieties
and uncertainties of a trial. Blackledge v. Allison, supra,
71. He further gains the certainty of a known and
reduced penalty, a speedy disposition of his case, the
chance to acknowledge his guilt, and a prompt start in
realizing whatever potential there may be for rehabilita-
tion. Id.; State v. Sebben, 145 Conn. App. 528, 545, 77
A.3d 811, cert. denied, 310 Conn. 958, 82 A.3d 627 (2013),
cert. denied, U.S. , 134 S. Ct. 1950, 188 L. Ed.
2d 962 (2014). The state in turn obtains a prompt and
largely final disposition of criminal charges with the
certainty of a conviction. Statewide Grievance Com-
mittee v. Whitney, 842; State v. Sebben, supra, 545.
‘‘Judges and prosecutors conserve vital and scarce
resources. The public is protected from the risks posed
by those charged with criminal offenses who are at
large on bail while awaiting completion of criminal pro-
ceedings.’’ Blackledge v. Allison, supra, 71.
‘‘These advantages can be secured, however, only if
dispositions by guilty plea are accorded a great measure
of finality. To allow indiscriminate hearings in . . .
postconviction proceedings . . . would eliminate the
chief virtues of the plea system—speed, economy, and
finality. And there is reason for concern about that
prospect. More often than not a prisoner has everything
to gain and nothing to lose from filing a collateral attack
upon his guilty plea. If he succeeds in vacating the
judgment of conviction, retrial may be difficult. If he
convinces a court that his plea was induced by an advan-
tageous plea agreement that was violated, he may
obtain the benefit of its terms. A collateral attack may
also be inspired by a mere desire to be freed temporarily
from the confines of the prison. . . .
‘‘Yet arrayed against the interest in finality is the very
purpose of the writ of habeas corpus—to safeguard a
person’s freedom from detention in violation of consti-
tutional guarantees. . . . The writ of habeas corpus
has played a great role in the history of human freedom.
It has been the judicial method of lifting undue
restraints upon personal liberty. . . . And a prisoner
in custody after pleading guilty, no less than one tried
and convicted by a jury, is entitled to avail himself
of the writ in challenging the constitutionality of his
custody.’’ (Citations omitted; emphasis omitted; inter-
nal quotation marks omitted.) Id., 71–72.
To balance these competing interests of finality and
personal freedom from detention in violation of consti-
tutional guarantees, our courts have required a peti-
tioner to ‘‘demonstrate a miscarriage of justice or other
prejudice and not merely an error which might entitle
him to relief on appeal’’ in order to mount a successful
collateral attack on his conviction. (Internal quotation
marks omitted.) Peruccio v. Commissioner of Correc-
tion, 107 Conn. App. 66, 71, 943 A.2d 1148, cert. denied,
287 Conn. 920, 951 A.2d 569 (2008) (quoting Sum-
merville v. Warden, 229 Conn. 397, 419, 641 A.2d 1356
[1994]). ‘‘In order to demonstrate such a fundamental
unfairness or miscarriage of justice, the petitioner
should be required to show that he is burdened by an
unreliable conviction.’’ (Internal quotation marks omit-
ted.) Peruccio v. Commissioner of Correction, supra,
71. These principles apply with equal force to the ques-
tion of whether Salamon should be applied retroac-
tively in the present case. See Luurtsema II, supra, 299
Conn. 757 (‘‘[i]n evaluating the rationales that other
jurisdictions have proffered for and against giving full
retroactive effect to new interpretations of criminal
statutes, we deem it axiomatic that the policies govern-
ing the availability of habeas relief should reflect the
purposes for which the remedy was established’’); id.
760 (declining to adopt per se rule of retroactivity
‘‘because a review of the diverse contexts in which
such challenges have arisen persuades us that there are
various situations in which to deny retroactive relief
may be neither arbitrary nor unjust’’); id., 764 (‘‘[i]n
situations where the criminal justice system has relied
on a prior interpretation of the law so that providing
retroactive relief would give the petitioner an unde-
served windfall, the traditional rationales underlying
the writ of habeas corpus may not favor full retroac-
tivity’’).
With these legal principles in mind, we conclude that
the traditional rationales underlying the writ of habeas
corpus do not favor applying Salamon retroactively in
the present case. First, there is no risk that the petitioner
stands convicted of an act that the law does not make
criminal. See Schriro v. Summerlin, supra, 542 U.S.
352. The criminal conduct the petitioner admitted to
engaging in at his plea hearing was extremely serious.
See footnotes 5 and 6 of this opinion. The petitioner
along with three other individuals abducted Brown at
gunpoint from his place of employment in Bridgeport,
drove with him to his house in Shelton, forced their
way into his house, and stole a substantial amount of
money, jewelry, and property from his safe. See foot-
note 6 of this opinion. The entire nighttime incident
lasted from approximately 8:45 p.m. until approxi-
mately 10:34 p.m. See footnote 5 of this opinion. The law
clearly criminalizes this type of conduct under several
statutes, including § 53a-92 (a) (2) (B). This is true even
after Salamon.
‘‘Although our holding in Salamon constituted a sig-
nificant change with respect to our interpretation of the
kidnapping statutes, we emphasized that [o]ur holding
does not represent a complete refutation of the princi-
ples established by our prior kidnapping jurisprudence.
. . . When [the] confinement or movement is merely
incidental to the commission of another crime . . . [it]
must have exceeded that which was necessary to com-
mit 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
. . . . [T]he test . . . to determine whether [the] con-
finements or movements involved [were] such that kid-
napping 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.’’ (Internal quotation
marks omitted.) State v. O’Brien-Veader, 318 Conn. 514,
557–58, 122 A.3d 555 (2015).
On the basis of the facts admitted by the petitioner
at the plea hearing, it cannot plausibly be argued that
the movement and confinement of Brown was merely
incidental to the commission of the burglary and rob-
bery. Instead, the movement and confinement of Brown
was significant enough to warrant independent prose-
cution under § 53a-92 (a) (2) (B). That is, although the
movement and confinement of Brown during the drive
from his place of work in Bridgeport to his house in
Shelton might have facilitated the robbery and burglary,
the degree to which the petitioner and his companions
confined and moved Brown was not necessary to com-
mit the robbery and burglary, nor was it inherent to
those offenses. The court in Salamon made clear that
when ‘‘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’’;
State v. Salamon, supra, 287 Conn. 547; a defendant
may still be convicted of kidnapping in conjunction
with another substantive crime. Id., 547 n.33; see, e.g.,
State v. Ward, 306 Conn. 718, 736–39, 51 A.3d 970 (2012)
(sufficient evidence of kidnapping when defendant
dragged victim at knife-point from kitchen to bedroom
where he moved her from bed to floor for sexual assault
because that act made victim’s ‘‘possibility of escape
even more remote’’ and sexual assault was brief part
of entire fifteen minute encounter); State v. Hampton,
293 Conn. 435, 463–64, 988 A.2d 167 (2009) (absence
of Salamon instruction harmless because defendant
drove victim around for approximately three hours
before ordering her out of car, sexually assaulting her,
and shooting her); State v. Nelson, 118 Conn. App. 831,
834–35, 861–62, 986 A.2d 311 (absence of Salamon
instruction harmless because defendant repeatedly had
assaulted victim in his apartment, demanding to know
location of his money and threatening to kill him, and,
afterward, restrained him for several hours while trans-
porting him to several locations), cert. denied, 295
Conn. 911, 989 A.2d 1074 (2010).
Second, there is no risk that the petitioner faces a
punishment that the law cannot impose upon him. See
Schriro v. Summerlin, supra, 542 U.S. 352. Kidnapping
in the first degree is a class A felony, for which a court
may impose a term of imprisonment of ‘‘not less than
ten years nor more than twenty-five years . . . .’’ Gen-
eral Statutes (Rev. to 2003) § 53a-35a (3); see also Gen-
eral Statutes § 53a-92 (b). Salamon had no impact on
this sentencing scheme. As a result, the law clearly
authorizes the petitioner’s sentence of fifteen years and
eight months imprisonment.
Third, and finally, we are mindful that the petitioner
pleaded guilty pursuant to a negotiated plea agreement.
Specifically, the petitioner agreed to plead guilty to
kidnapping in the first degree and to being a felon in
possession of a firearm in exchange for the certainty
of concurrent sentences of fifteen years and eight
months of imprisonment in the state and federal cases,
and the entry of a nolle prosequi on the remaining state
charges. The petitioner has received precisely what he
bargained for under the terms of that agreement. If
Salamon is applied retroactively in the present case
and the petitioner’s conviction is vacated, however, the
state will have lost the benefit of its bargain. We recog-
nize that in many cases the state and society’s interest
in ‘‘finality must give way to the demands of liberty and
a proper respect for the intent of the legislative branch.’’
Luurtsema II, supra, 299 Conn. 766. Nevertheless, we
cannot ignore the fact that, unlike in Luurtsema II, the
state in the present case can plausibly be said to have
relied to its detriment on our Supreme Court’s prior
interpretation of our kidnapping statutes when con-
structing the terms of the plea agreement. To authorize
a term of fifteen years and eight months imprisonment,
the petitioner could have pleaded guilty to kidnapping
in the first degree, burglary in the first degree, robbery
in the first degree, or another appropriate felony
offense, e.g., conspiracy to commit one of the aforemen-
tioned felonies.12 Had the state been prescient enough
to foresee Salamon and thus selected a nonkidnapping
offense as the basis for the guilty plea, Salamon would
be irrelevant and the state would not be faced with the
prospect of reconstructing and reprosecuting a fourteen
year old case.
In light of these facts and circumstances, we fail
to see how not applying Salamon retroactively in the
present case would be fundamentally unfair or mani-
festly unjust. ‘‘Plea bargains always entail risks for the
parties—risks relating to what evidence would or would
not have been admitted at trial, risks relating to how
the jury would have assessed the evidence and risks
relating to future developments in the law. The salient
point is that a plea agreement allocates risk between
the two parties as they see fit. If courts disturb the
parties’ allocation of risk in an agreement, they threaten
to damage the parties’ ability to ascertain their legal
rights when they sit down at the bargaining table and,
more problematically for criminal defendants, they
threaten to reduce the likelihood that prosecutors will
bargain away counts (as the prosecutors did here) with
the knowledge that the agreement will be immune from
challenge on appeal.’’ United States v. Bradley, 400 F.3d
459, 464 (6th Cir.), cert. denied, 546 U.S. 862, 126 S. Ct.
145, 163 L. Ed. 2d 144 (2005); accord United States v.
Lockett, 406 F.3d 207, 213 (3d Cir. 2005); see also Young
v. United States, 124 F.3d 794, 798 (7th Cir. 1997) (‘‘If
the law allowed the defendant to get off scot free in
the event the argument later is shown to be a winner,
then the defendant could not get the reduction in the
first place. Every plea would become a conditional plea,
with the (unstated) condition that the defendant obtains
the benefit of favorable legal developments, while the
prosecutor is stuck with the original bargain no matter
what happens later. That approach destroys the bargain,
and the prospect of such an outcome will increase the
original sentence.’’ [Emphasis omitted.]), cert. denied,
524 U.S. 928, 118 S. Ct. 2324, 141 L. Ed. 2d 698 (1998).
In sum, we are not persuaded that the traditional
rationales underlying the writ of habeas corpus favor
full retroactive application of Salamon in the present
case. There is no risk that the petitioner stands con-
victed of an act that the law does not make criminal
or faces a punishment that the law cannot impose upon
him. The state has also relied sufficiently to its detri-
ment on our Supreme Court’s prior interpretation of
our kidnapping statutes when constructing the terms
of the plea agreement such that applying Salamon retro-
actively in the present case would be inappropriate.
Accordingly, the petitioner’s due process claim, which
is predicated on the retroactive application of Salamon,
necessarily fails.
III
The petitioner’s final claim is that because his guilty
plea is invalid and his conviction must be vacated, he
is once again entitled to a presumption of innocence
and, therefore, he is actually innocent of kidnapping in
the first degree. We decline to review the petitioner’s
claim.
‘‘It is well settled that this court is not bound to
consider any claimed error unless it appears on the
record that the question was distinctly raised at trial
and was ruled upon and decided by the court adversely
to the appellant’s claim. . . . It is equally well settled
that a party cannot submit a case to the trial court on
one theory and then seek a reversal in the reviewing
court on another. . . . To review such a newly articu-
lated claim, would amount to an ambuscade of the
[habeas] judge.’’ (Citation omitted; internal quotation
marks omitted.) Peeler v. Commissioner of Correction,
170 Conn. App. 654, 677, 155 A.3d 772, cert. denied, 325
Conn. 901, 157 A.3d 1146 (2017).
In his second habeas petition and before the habeas
court, the petitioner claimed that he was actually inno-
cent of kidnapping in the first degree only because he
‘‘did not intend to prevent the victim’s liberation for a
longer period of time or to a greater degree than that
which was necessary to commit a separate crime.’’ In
his petition for certification to appeal, the petitioner
raised only a generic claim that the habeas court ‘‘erred
by failing to find that [he] was actually innocent of the
crime of kidnapping.’’ Because the petitioner’s claim
on appeal was never distinctly raised before the habeas
court, it could not have been ruled on by the habeas
court in a manner adverse to the petitioner. Accord-
ingly, we decline to review this claim for the first time
on appeal.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-92 provides in relevant part: ‘‘(a) A person is
guilty of kidnapping in the first degree when he abducts another person
and . . . (2) he restrains the person abducted with intent to . . . (B)
accomplish or advance the commission of a felony . . . .’’
2
In the appendix to his brief, the petitioner provided the docket sheet
for his criminal case, which states that he was initially charged with burglary
in the first degree, robbery in the first degree, larceny in the first degree in
violation of General Statutes § 53a-122, and kidnapping in the first degree
with a firearm in violation of General Statutes § 53a-92a.
The docketing sheet was not admitted into evidence at the second habeas
trial. On the basis of the allegations in the criminal case, however, it appears
that the petitioner could have been charged with larceny in the first degree.
See General Statutes (Rev. to 2003) § 53a-122 (a) (‘‘[a] person is guilty of
larceny in the first degree when he commits larceny, as defined in section
53a-119, and . . . [2] the value of the property . . . exceeds ten thou-
sand dollars’’).
The petitioner’s trial counsel also testified at the first habeas trial that
the petitioner was initially charged with kidnapping in the first degree with
a firearm, and a transcript of the first habeas trial was admitted into evidence
at the second habeas trial. The first habeas court further found that ‘‘[t]he
evidence clearly reveals that the petitioner was present, with a firearm,
in Brown’s home when the robbery took place.’’ Little I, supra, 2008 WL
4415754, *3.
3
The petitioner pleaded guilty in federal court to being a felon in posses-
sion of a firearm, but the record does not reflect whether any additional
federal charges were pending against the petitioner before he pleaded guilty
or what the petitioner’s sentencing exposure was under the United States
Sentencing Guidelines.
4
Evidence was presented at the first and second habeas trials that the
petitioner was further exposed to enhanced penalties as a persistent felony
offender. See General Statutes (Rev. to 2003) § 53a-40 (f) and (m). Specifi-
cally, the petitioner testified at the first habeas trial that he previously
pleaded guilty to: (1) sale of narcotics and possession of marijuana in May,
1999; (2) possession of narcotics, two counts of assault in the third degree,
and interfering with a police officer in May, 1999; and (3) assault in the second
degree in October, 1994. The petitioner also admitted that he previously
was convicted of attempted robbery in the first degree after a jury trial.
The petitioner’s trial counsel similarly testified at the first habeas trial
that the prosecutor in the petitioner’s state case ‘‘very frequently uses the
enhanced penalties of the persistent offender statutes’’ and that the peti-
tioner ‘‘[a]bsolutely . . . would have been subject to that statute’s terms.’’
Trial counsel further testified that he believed that the facts of the case
would have supported additional substantive criminal charges, including
conspiracy. Trial counsel confirmed that when he and the petitioner’s federal
public defender met with the petitioner, they explained to him not only
his sentencing exposure for the pending charge, but also the prospective
additional charges and penalties.
5
The information, as read by the court clerk to the petitioner before he
pleaded guilty, made the following relevant allegations: ‘‘[The state] accuses
Jermaine F. Little of kidnapping in the first degree. Charges that at the cities
of Bridgeport and Shelton, on or about the ninth day of September, 2003,
commencing at approximately 8:45 p.m. and continuing until approximately
10:34 p.m. at locations known, including 1844 Barnum Avenue, Bridgeport,
and 27 Rock Rest Road, Shelton, and locations unknown, the said, Jermaine
F. Little did abduct another person and he restrained the person with intent
to accomplish or advance the commission of a felony . . . .’’
6
The prosecutor recited the following facts in support of the petitioner’s
guilty plea: ‘‘On September 9 at about 9 o’clock in the evening, when the
victim was closing his store, he was abducted by [the petitioner]. The victim
was taken in a car with other parties involved, who are [Harrison], [Freelove],
[and Peoples, and] taken to his home in Shelton where they forced entry
to his home. When in the home they had him open a safe. At least one or
more of them had a gun and they stole a substantial amount of money,
jewelry, property from the victim’s safe. The police did an excellent job,
including tracing cell phone calls where the victim’s cell phone was used
to call the [petitioner’s] relatives, or it may have even been the house that
the [petitioner] was living in. It was a very strong case.’’
7
The habeas court granted the second habeas petition only as it pertained
to one of the petitioner’s claims of ineffective assistance of habeas counsel.
Little II, supra, 2016 WL 2935514, *3. In particular, the petitioner claimed
that his first habeas counsel rendered ineffective assistance when he failed
to file a timely application for a fee waiver and appointment of counsel for
his appeal from the judgment of the first habeas court denying his first
habeas petition and his petition for certification to appeal. The habeas
court agreed that the petitioner’s first habeas counsel rendered ineffective
assistance in this respect. The habeas court cautioned, however: ‘‘I make
no judgment or prediction as to his ability to succeed; indeed, the petition
for certification to appeal was denied. . . . All I’m doing by this action is
allowing [the petitioner] to file the application for waiver of fees.’’ Id.
The petitioner’s appellate counsel in the present appeal was subsequently
appointed to represent him in his appeal from the judgment of the first
habeas court. On April 29, 2016, the petitioner’s appellate counsel filed an
Anders brief and a motion for permission to withdraw as counsel, represent-
ing that ‘‘[u]pon thorough review and examination of the transcripts, informa-
tion and record in this matter, the undersigned has determined that an
appeal in this matter would be frivolous.’’ See Anders v. California, 386
U.S. 738, 744–45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); see, e.g., Lorthe v.
Commissioner of Correction, 103 Conn. App. 662, 674, 931 A.2d 348 (dis-
cussing filing of briefs by appointed counsel, pursuant to Anders, to inform
court that habeas petition or appeal is ‘‘wholly frivolous’’), cert. denied, 284
Conn. 939, 937 A.2d 696 (2007); see also Practice Book § 23-41 (governing
motions to withdraw by appointed counsel in habeas cases). On September
22, 2017, the court, Westbrook, J., granted the motion.
8
In Robles v. Commissioner of Correction, 169 Conn. App. 751, 752–53,
153 A.3d 29 (2016), cert. denied, 325 Conn. 901, 157 A.3d 1146 (2017), the
petitioner claimed that his guilty pleas to, inter alia, kidnapping in the first
degree and attempt to commit kidnapping in the first degree, made pursuant
to the doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27
L. Ed. 2d 162 (1970), were not made knowingly, intelligently, and voluntarily
in light of our Supreme Court’s subsequent holding in Salamon. This court
declined to review the defendant’s claim because he failed to raise it before
the habeas court. Id., 753.
9
Following appellate briefing and oral argument before this court, we
sua sponte ordered the parties to file simultaneous supplemental briefs
addressing the issue of retroactivity.
10
Our Supreme Court did not foreclose the possibility that a defendant
could mount a successful constitutional challenge to his conviction on
those grounds. Luurtsema challenged his conviction only on the ground that
there was insufficient evidence to support his conviction, not on the ground
that the kidnapping statute was unconstitutionally vague as applied to the
facts of his case. Luurtsema I, supra, 262 Conn. 203–204. As a result, the
court stated that it could ‘‘neither acknowledge nor reject the merits of such
a constitutional claim.’’ Id., 204.
11
In State v. Sanseverino, 287 Conn. 608, 949 A.2d 1156 (2008), overruled
in part by State v. DeJesus, 288 Conn. 418, 437, 953 A.2d 45 (2008), superseded
in part after reconsideration by State v. Sanseverino, 291 Conn. 574, 969
A.2d 710 (2009), overruled in part by State v. Payne, 303 Conn. 538, 548, 34
A.3d 370 (2012), a companion case released on the same day as Salamon,
our Supreme Court took up a second challenge by a defendant convicted
after a jury trial of kidnapping in the first degree for conduct incidental to
a series of sexual assaults. Our Supreme Court declined to address the
defendant’s constitutional claim, applied Salamon retroactively; id., 618–20,
624–26; and concluded that the defendant was entitled to a new trial on the
basis of the court’s failure to instruct the jury in accordance with Salamon.
State v. Sanseverino, 291 Conn. 574, 589–90, 969 A.2d 710 (2009). Because
the direct appeal in Sanseverino was still pending when Salamon was
decided, however, there was no question that Salamon should be applied
retroactively in that case. See State v. Sanseverino, supra, 287 Conn. 620
n.11 (‘‘a rule enunciated in a case presumptively applies retroactively to
pending cases’’).
12
Burglary in the first degree and robbery in the first degree are class B
felonies, for which a court may generally impose a term of imprisonment
of ‘‘not less than one year nor more than twenty years . . . .’’ General
Statutes (Rev. to 2003) § 53a-35a (5); see also General Statutes §§ 53a-101
(c) and 53a-134 (b). If the petitioner were convicted under subsection (a)
(1) of the burglary statute or subsection (a) (2) of the robbery statute,
however, the court cannot impose a term of imprisonment of less than five
years. General Statutes (Rev. to 2003) § 53a-35a (5). Conspiracy is a crime
of ‘‘the same grade and degree as the most serious offense which . . . is
an object of the conspiracy, except that . . . [a] conspiracy to commit a
class A felony is a class B felony.’’ General Statutes § 53a-51.