Slater v. Commissioner of Correction ( 2015 )

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JOHN SLATER v. COMMISSIONER OF CORRECTION
(AC 35897)
DiPentima, C. J., and Mullins and West, Js.
Argued December 2, 2014—officially released July 14, 2015
(Appeal from Superior Court, judicial district of
Tolland, Newson, J.)
David V. DeRosa, assigned counsel, for the appel-
lant (petitioner).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Terence D. Mariani, senior assistant state’s
attorney, for the appellee (respondent).
Opinion
WEST, J. The petitioner, John Slater, appeals from
the judgment of the habeas court denying in part his
amended petition for a writ of habeas corpus. On
appeal, the petitioner claims that the habeas court
improperly (1) rejected his claim that the failure of his
trial counsel to raise the statute of limitations as an
affirmative defense at trial constituted ineffective assis-
tance and (2) rejected his claim that the failure of his
appellate counsel to adequately investigate his claim
that he was substantially prejudiced by the more than
six year delay between the incident and his arrest con-
stituted ineffective assistance.1 We affirm the judgment
of the habeas court.
In the petitioner’s direct appeal, our Supreme Court
summarized the underlying facts as follows: ‘‘On May
6, 1997, in the city of Waterbury, the [petitioner] forced
the victim into a van with a knife, which he used to
poke her in the hand. The [petitioner] first forced the
victim to perform oral sex on him. The [petitioner]
then had vaginal intercourse with the victim. Shortly
thereafter, Barry Kilcran and Gary Jones, who were at
Kilcran’s house at 129 Warner Street in Waterbury,
heard the victim coming down the street screaming and
crying that someone had tried to rape her. The victim
approached the two men in a disoriented and hysterical
state and told them that ‘a black male with a big knife’
had raped her. Kilcran and Jones brought the victim
inside the house and telephoned the police.
‘‘The police thereafter transported the victim to the
hospital, where she was admitted to the emergency
room. Catherine Judd, a registered nurse, found the
victim trying to hide in a corner of the emergency room,
crying and upset. The victim informed Judd that she
had been raped. Mickey Wise, a physician, then exam-
ined the victim and administered a rape kit, with which
he took a vaginal swab and collected other physical
evidence. The victim informed Wise that an ‘unknown
person forced her into his car and . . . forced her to
perform oral sex on him, then vaginal intercourse. [He]
[e]jaculated in her vagina . . . . He had a large knife
with which he poked her on the right hand.’
‘‘No timely arrest was made in connection with the
alleged assault. On or about July 31, 2001, however, the
police learned that the DNA obtained from the victim’s
rape kit matched that of the [petitioner]. At that time,
Waterbury police detective Anthony Rickevicius went
to see the victim, but did not show her a photograph
of the [petitioner]. Rickevicius then applied for a search
warrant for a blood sample from the [petitioner], which
was granted, and the police took the [petitioner’s] blood
sample on February 8, 2002. Before the confirmation
results arrived, however, the victim died of causes unre-
lated to the assault. On or about August 18, 2003, the
police questioned the [petitioner] about the incident
and showed him a photograph of the victim. At that
time, the [petitioner] signed a statement attesting that
he did not know the victim and had not had sexual
relations with her, ‘forced or consensual.’ The [peti-
tioner] subsequently was charged with sexual assault
in the first degree and kidnapping in the first degree in
October, 2003.’’ (Footnote omitted.) State v. Slater, 285
Conn. 162, 166–67, 939 A.2d 1105, cert. denied, 553 U.S.
1085, 128 S. Ct. 2885, 171 L. Ed. 2d 822 (2008).
The sexual assault of the victim occurred on May 6,
1997. At the time the crime was committed, the applica-
ble statute of limitations for the Class B felony of sexual
assault in the first degree was five years pursuant to
General Statutes § 54-193 (b).2 However, on May 16,
2000, General Statutes § 54-193b3 became effective, and
created a twenty year statute of limitations for the pros-
ecution of a sexual assault offense that was reported
to police within five years of its occurrence and where
the identity of the perpetrator could be established by
DNA. There was no statute of limitations for the Class
A felony of kidnapping. See General Statutes (Rev. to
1997) § 54-193 (a). An arrest warrant for the petitioner
was not issued until October 23, 2003, a period of six
years and five months after the crime had occurred,
and the petitioner was not arrested on that warrant
until October 27, 2003.
Before the petitioner’s criminal trial, his trial counsel
filed a motion to dismiss both charges. Trial counsel
argued that the court should dismiss the Class B felony
of sexual assault because the application of the new
twenty year statute of limitations violated the ex post
facto clause of the United States constitution and the
five year statute of limitations expired prior to the issu-
ance of the arrest warrant or the arrest of the petitioner.
Trial counsel also argued that the court should dismiss
both charges due to the delay in the arrest of the peti-
tioner. He argued that the delay resulted in actual sub-
stantial prejudice to the petitioner and was wholly
unjustified.4 The trial court, Holden, J., held an eviden-
tiary hearing on the motion before denying the motion
by oral decision on December 13, 2004. Trial counsel
did not reassert the statute of limitations claim as an
affirmative defense at trial.
Following a jury trial, the petitioner was found guilty
of sexual assault in the first degree in violation of Gen-
eral Statutes § 53a-70 (a) (1) and kidnapping in the first
degree in violation of General Statutes § 53a-92 (a) (2)
(B). On February 10, 2005, the trial court, Holden, J.,
sentenced the petitioner to concurrent fifteen year
terms of imprisonment with five years of special parole.
The judgment of conviction was affirmed on direct
appeal. State v. Slater, 98 Conn. App. 288, 908 A.2d 1097
(2006), aff’d, 285 Conn. 162, 939 A.2d 1105, cert. denied,
553 U.S. 1085, 128 S. Ct. 2885, 171 L. Ed. 2d 822 (2008).
On November 27, 2009, the petitioner filed a petition
for a writ of habeas corpus as a self-represented litigant.
He subsequently obtained an attorney, who filed a nine
count amended petition on February 15, 2012. The
counts relevant to this appeal are paragraph 69 (k) of
count seven,5 paragraph 75 (f) of count eight, and count
nine. In paragraph 69 (k) of count seven, the petitioner
alleged that his trial counsel was ineffective for failing
to raise the statute of limitations as an affirmative
defense at trial. In paragraph 75 (f) of count eight,
the petitioner alleged that his appellate counsel was
ineffective for failing to raise ‘‘any claims arising from
the allegation[s] in [c]ount [n]ine of [his] [p]etition.’’ In
count nine, the petitioner alleged that his constitutional
right to due process was violated when the trial court
applied the new twenty year statute of limitations to
his sexual assault in the first degree charge, and when
the trial court rejected his prearrest delay claim.
A habeas trial was held on February 21 and 22, 2013.
On February 22, 2013, the habeas court, Newson, J.,
rendered an oral judgment in favor of the respondent,
the Commissioner of Correction, in part, denying all of
the claims in the amended petition with the exception
of the claims in count one,6 paragraph 69 (k) of count
seven, and count nine. In a memorandum of decision
filed July 2, 2013, the habeas court granted the petition
as to count one7 and denied it as to paragraph 69 (k)
of count seven. With respect to paragraph 69 (k) of
count seven, the habeas court concluded that the peti-
tioner’s claim failed on the prejudice prong.
The petitioner subsequently filed a petition for certifi-
cation to appeal the partial denial of his amended peti-
tion on July 15, 2013, which the habeas court granted
on July 17, 2013. This appeal followed. Additional facts
and procedural history will be set forth as necessary.
We begin by providing the appropriate standard of
review for a challenge to a denial of a petition for a
writ of habeas corpus when certification to appeal is
granted. ‘‘The underlying historical facts found by the
habeas court may not be disturbed unless the findings
were clearly erroneous. . . . The conclusions reached
by the habeas court in its decision to dismiss a habeas
petition are matters of law, subject to plenary review.’’
(Citation omitted.) Haywood v. Commissioner of Cor-
rection, 153 Conn. App. 651, 655, 105 A.3d 238, cert.
denied, 315 Conn. 908, 105 A.3d 235 (2014). ‘‘When our
review is plenary, we must determine whether [the
court’s legal conclusions] are legally and logically cor-
rect and whether they find support in the facts set out
in the court’s [ruling] . . . .’’ (Internal quotation marks
omitted.) Council v. Commissioner of Correction, 114
Conn. App. 99, 103, 968 A.2d 483, cert. denied, 292 Conn.
918, 973 A.2d 1275 (2009). ‘‘The habeas judge, as the
trier of facts, is the sole arbiter of the credibility of
witnesses and the weight to be given to their testimony.’’
(Internal quotation marks omitted.) Small v. Commis-
sioner of Correction, 286 Conn. 707, 717, 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).
I
We first address the petitioner’s claim that the habeas
court improperly rejected his claim that the failure of
his trial counsel to raise the statute of limitations as
an affirmative defense at trial constituted ineffective
assistance.
The following additional facts are relevant to this
claim. In its memorandum of decision, the habeas court
concluded that the petitioner’s claim that trial counsel
was ineffective for failing to raise the statute of limita-
tions as an affirmative defense for the jury’s consider-
ation failed on the prejudice prong. The habeas court
found that ‘‘[i]n denying defense counsel’s pretrial
motion to dismiss, the trial court ruled that, the crime
having been reported within five years of its occurrence,
and there being DNA to identify the perpetrator, the
applicable statute of limitations was . . . § 54-193b,
and not the five year period set forth in § 54-193.’’ The
court further found that ‘‘it is reasonable for this court
to presume that, had defense counsel made an effort
to present evidence to the jury that the applicable stat-
ute of limitation was anything other than that contained
in . . . § 54-193b, the trial court would have prohib-
ited it.’’
The habeas court concluded: ‘‘Therefore, there is no
reasonable probability to believe that there would have
been a different or more favorable result for the peti-
tioner, because it is unlikely the jury would have ever
have heard evidence that a different statute of limita-
tions applied. As such the petitioner cannot establish
he was prejudiced.’’
We begin by stating the law regarding claims of inef-
fective assistance of trial counsel. ‘‘The petitioner’s
right to the effective assistance of counsel is assured
by the sixth and fourteenth amendments to the federal
constitution, and by article first, § 8, of the constitution
of Connecticut. In Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the
United States Supreme Court established that for a peti-
tioner to prevail on a claim of ineffective assistance of
counsel, he must show that counsel’s assistance was
so defective as to require reversal of [the] conviction.
. . . That requires the petitioner to show (1) that coun-
sel’s performance was deficient and (2) that the defi-
cient performance prejudiced the defense. . . . Unless
a [petitioner] makes both showings, it cannot be said
that the conviction . . . resulted from a breakdown in
the adversary process that renders the result unrelia-
ble. . . .
‘‘With respect to the prejudice component of the
Strickland test, the petitioner must demonstrate that
counsel’s errors were so serious as to deprive the [peti-
tioner] of a fair trial, a trial whose result is reliable.
. . . It is not enough for the [petitioner] to show that
the errors had some conceivable effect on the outcome
of the proceedings. . . . Rather, [t]he [petitioner] must
show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine con-
fidence in the outcome. . . . When a [petitioner] chal-
lenges a conviction, the question is whether there is
a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respect-
ing guilt.’’ (Internal quotation marks omitted.) Smith
v. Commissioner of Correction, 148 Conn. App. 517,
523–25, 85 A.3d 1199, cert. denied, 312 Conn. 901, 91
A.3d 908 (2014).
The petitioner argues that his trial counsel was inef-
fective for failing to reassert the statute of limitations
claim made in the motion to dismiss as an affirmative
defense at trial, waiving any right the petitioner may
have had to raise issues relating to those claims on
appeal. The petitioner relies on State v. Coughlin, 61
Conn. App. 90, 97, 762 A.2d 1 (2000), cert. denied, 255
Conn. 934, 767 A.2d 105 (2001), arguing that it stands
for the proposition that if defense counsel moves to
dismiss the case and the trial court denies the motion,
the defendant must still plead the statute of limitations
as an affirmative defense to the jury or the issue is
waived on appeal.
We agree with the habeas court’s conclusion that the
petitioner failed to prove prejudice. The facts underly-
ing the court’s decision in State v. Coughlin, supra, 61
Conn. App. 97, are distinguishable from the facts of this
case. In Coughlin, this court found that the defendant
had waived his statute of limitations claim, despite rais-
ing it in a pretrial motion to dismiss, because there was
no evidence that it had been raised as an affirmative
defense at trial. Id. In that case, however, the defen-
dant’s statute of limitations claim did not involve a
dispute as to which statute of limitations applied.
Rather, the claim involved whether the statute of limita-
tions had been tolled by the factual circumstances of
the case. Id. Put simply, the defendant’s claim involved
a factual determination for the jury. Id.
In contrast, in the present case, the petitioner’s stat-
ute of limitations claim involved a dispute about which
of two statutes of limitation applied. The petitioner’s
trial counsel argued that the application of the newly
extended twenty year statute of limitations would open
him to liability that did not exist at the time of the crime
and therefore, violated his rights under the ex post
facto clause. There were no factual determinations to
be made by the jury. It was solely a legal question for
the court. See General Statutes § 52-216 (‘‘The court
shall decide all issues of law and all questions of law
arising in the trial of any issue of fact; and, in committing
the action to the jury, shall direct them to find accord-
ingly. The court shall submit all questions of fact to the
jury, with such observations on the evidence, for their
information, as it thinks proper, without any direction
as to how they shall find the facts.’’); Practice Book
§ 16-9 (same).
Further, we agree with the habeas court’s analysis
that in denying trial counsel’s motion to dismiss, the
trial court determined that the applicable statute of
limitations was § 54-193b, not § 54-193 (b). It, therefore,
is reasonable to presume, given that ruling, that had
trial counsel attempted to present evidence to the jury
that the applicable statute of limitations was anything
other than § 54-193b, the trial court would have prohib-
ited it. There is no reasonable probability that there
would have been a different or more favorable result.
We, therefore, conclude that the petitioner failed to
show that he was prejudiced by trial counsel’s not hav-
ing attempted to argue a statute of limitations defense to
the jury, and thus, he cannot succeed on his ineffective
assistance of trial counsel claim. See Thomas v. Com-
missioner of Correction, 141 Conn. App. 465, 472–73,
62 A.3d 534 (failure to present evidence of prejudice
fatal to ineffective assistance claim), cert. denied, 308
Conn. 939, 66 A.3d 881 (2013).
II
We now address the petitioner’s claim that the habeas
court improperly rejected his claim that the failure of
his appellate counsel to adequately investigate his claim
that he was substantially prejudiced by the more than
six year delay between the incident and his arrest con-
stituted ineffective assistance.
The following additional facts are relevant to this
claim. At the hearing before the trial court on the peti-
tioner’s motion to dismiss, Judge Holden found the fol-
lowing facts with respect to the prearrest delay claim.
The incident took place on May 6, 1997, a rape kit was
collected, and then the case was closed on September
3, 1997, because the victim was uncooperative. On
March 30, 2001, almost four years later, the petitioner
provided a blood sample in compliance with the state
sex offender registry, and on July 31, 2001, the police
matched the petitioner’s DNA to the victim’s rape kit.
The victim was contacted by the police about this new
information, but was not shown a photographic array.
A search and seizure warrant was executed on February
8, 2002, for a sample of the petitioner’s blood, and a
confirmation of the match was received on May 10,
2002. In the meantime, however, the victim died on
April 4, 2002, of causes unrelated to the assault. It was
not until August 18, 2003, that the police got a statement
from the petitioner regarding the incident, and then
not until October 23, 2003, that an arrest warrant was
issued. The petitioner was arrested on that warrant on
October 27, 2003.
The trial court concluded: ‘‘The court has heard no
evidence to suggest, and although I am troubled by the
time line, too long a time line, I have not heard anything
at all to suggest that the police did anything to put
themselves in a tactical advantage. Indeed but for there
being contact by the state police that there was a hit,
we can say that [the state’s] case remained closed as
it had for six years, for at least the four years prior to
that knowledge.
‘‘Actual substantial prejudice resulting from the
delay? I see none. As counsel has made certain claims
in his motion regarding alibi and other issues that might
have been utilized had the state in a timely manner or
the police proceeded with this investigation and arrest,
particularly, when they had developed [the petitioner]
as a suspect almost on the very day the incident
occurred. Whether they should have employed other
investigative procedures to implement the arrest sooner
. . . they, perhaps, could have. But, in any event,
whether or not those that were employed affected any
prejudice to [the petitioner’s] trial, I have seen no evi-
dence of that in this hearing nor have I seen any evi-
dence that the delay is wholly unjustifiable. I’ve seen
no evidence that the state intended to use this delay to
gain a tactical advantage over the [petitioner].’’
At the habeas trial, appellate counsel testified that
he could not recall what he had reviewed in preparing
the petitioner’s appeal. In response to the question of
whether he had reviewed trial counsel’s motion to dis-
miss, appellate counsel testified that the motion
‘‘appears to be something I would expect I reviewed,’’
but that he had no specific recollection of what he had
reviewed. When entering its oral judgment on February
22, 2013, the habeas court denied count eight of the
amended petition, finding ‘‘credible counsel’s testimony
that his standard appellate practice, which he believed
he would have engaged in on this matter, would have
been to review all transcripts, counsel’s defense file
and all other things in the record. Notwithstanding even
his admission that he doesn’t think he reviewed specifi-
cally the court file, there was no proof that counsel
engaged in deficient performance or that there was
any prejudice.’’
‘‘To succeed on an ineffective assistance of appellate
counsel claim, the petitioner must satisfy both the per-
formance prong and the prejudice prong of Strickland.
. . . To satisfy the prejudice prong, the petitioner must
demonstrate that there is a reasonable probability that,
but for appellate counsel’s failure to raise the issue on
appeal, the petitioner would have prevailed in his direct
appeal, i.e., reversal of his conviction or granting a
new trial.’’ (Citation omitted; internal quotation marks
omitted.) Haywood v. Commissioner of Correction,
supra, 153 Conn. App. 662. ‘‘[I]t is well settled that [a]
reviewing court can find against a petitioner on either
ground, whichever is easier.’’ (Emphasis in original;
internal quotation marks omitted.) Sanchez v. Commis-
sioner of Correction, 314 Conn. 585, 606, 103 A.3d
954 (2014).
The petitioner argues that it is an appellate lawyer’s
professional obligation to adequately investigate the
entire record, court file, exhibits, and to conduct a con-
versation with his client. Appellate counsel cannot
know what is best to include in an appellate brief with-
out reviewing the court record and exhibits. He argues
that the prearrest delay claim was a strong claim that
could and should have been raised because, in compari-
son to the claim pursuant to Crawford v. Washington,
541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004),
that appellate counsel chose to raise, which would have
resulted in a new trial, the prearrest delay claim would
have prevented prosecution and, therefore, resulted in
a judgment of acquittal for the petitioner. The petitioner
argues that had his appellate counsel investigated prop-
erly and raised the prearrest delay claim on appeal,
there is a reasonable probability that he would have pre-
vailed.
‘‘The role of due process protections with respect to
pre-accusation delay has been characterized as a limited
one. . . . [T]he Due Process Clause does not permit
courts to abort criminal prosecutions simply because
they disagree with a prosecutor’s judgment as to when
to seek an indictment. . . . Our task is more circum-
scribed. We are to determine only whether the action
complained of . . . violates those fundamental con-
ceptions of justice which lie at the base of our civil and
political institutions . . . and which define the com-
munity’s sense of fair play and decency . . . . The due
process clause has not replaced the applicable statute
of limitations . . . [as] . . . the primary guarantee
against bringing overly stale criminal charges. . . .
‘‘In order to establish a due process violation because
of pre-accusation delay, the defendant must show both
that actual substantial prejudice resulted from the delay
and that the reasons for the delay were wholly unjustifi-
able, as where the state seeks to gain a tactical advan-
tage over the defendant. . . . [P]roof of prejudice is
generally a necessary but not sufficient element of a
due process claim, and . . . the due process inquiry
must consider the reasons for the delay as well as the
prejudice to the accused.’’ (Citations omitted; emphasis
added; footnote omitted; internal quotation marks omit-
ted.) State v. Morrill, 197 Conn. 507, 521–22, 498 A.2d
76 (1985).
We agree with the habeas court’s conclusion that
the petitioner failed to prove he was prejudiced under
Strickland. The petitioner offered no evidence at the
habeas trial that the prearrest delay claim would have
been successful if pursued. ‘‘The burden to demonstrate
what benefit additional investigation would have
revealed is on the petitioner.’’ Holley v. Commissioner
of Correction, 62 Conn. App. 170, 175, 774 A.2d 148
(2001); see also Norton v. Commissioner of Correction,
132 Conn. App. 850, 860, 33 A.3d 819 (‘‘[m]ere allegation
and speculation are insufficient’’), cert. denied, 303
Conn. 936, 36 A.3d 695 (2012). Although we acknowl-
edge, as both the trial and habeas courts did, the lapse
in time between the incident and the petitioner’s arrest,
we agree with the habeas court that the petitioner failed
to show that he suffered actual substantial prejudice
as a result of the lapse of time or that the delay was
wholly unjustifiable. We, therefore, conclude that
because the petitioner has failed to demonstrate that
this claim had a reasonable probability of success on
appeal, the petitioner has not shown that he was preju-
diced by appellate counsel’s failure to raise it.
The judgment is affirmed.
In this opinion the other judges concurred.
1
We conclude that the petitioner’s claim as to his appellate counsel is
limited to the failure to adequately investigate whether the petitioner was
prejudiced by the delay between the incident and his arrest. The petitioner
did not raise a claim that his appellate counsel was ineffective for failing
to investigate or raise a claim as to the statute of limitations.
2
General Statutes § 54-193 (b) provides: ‘‘No person may be prosecuted
for any offense, other than an offense set forth in subsection (a) of this
section, for which the punishment is or may be imprisonment in excess of one
year, except within five years next after the offense has been committed.’’ We
note that § 54-193 (b) was amended by No. 10-180 of the 2010 Public Acts.
The changes are not relevant to this appeal. All references are to the current
version of the statute.
3
Public Acts 2000, No. 00-80, § 1, provides: ‘‘Notwithstanding the provi-
sions of sections 54-193 and 54-193a of the general statutes, a person may
be prosecuted for a violation of section 53a-70, 53a-70a, 53a-70b, 53a-71,
53a-72a or 53a-72b of the general statutes not later than twenty years from
the date of the commission of the offense, provided (1) the victim notified
any police officer or state’s attorney acting in such police officer’s or state’s
attorney’s official capacity of the commission of the offense not later than
five years after the commission of the offense, and (2) the identity of the
person who allegedly committed the offense has been established through
a DNA (deoxyribonucleic acid) profile comparison using evidence collected
at the time of the commission of the offense.’’
4
We note that trial counsel made one additional argument in his motion
to dismiss—the court should dismiss both charges due to insufficient evi-
dence to justify continuing the case or placing the petitioner on trial—that
is not at issue in this appeal.
5
We note that the petitioner appears to have mislabeled the subsections
in paragraph 69 of count seven by mistakenly labeling two subsections
‘‘h.’’ The subsection at issue follows subsection j and should have been
labeled ‘‘k.’’
6
In count one of the amended petition, the petitioner alleged that the
trial court improperly instructed the jury as to the charge of kidnapping in
the first degree.
7
The petitioner alleged that pursuant to our Supreme Court’s reinterpreta-
tion of the kidnapping statutes in State v. Salamon, 287 Conn. 509, 949 A.2d
1092 (2008), he was entitled to an instruction that the jury must find that
he ‘‘had intended 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
underlying] crime.’’ (Internal quotation marks omitted.) The habeas court
granted the petition as to count one and ordered the petitioner’s conviction
for kidnapping vacated. The court found that the petitioner was entitled to
habeas relief because there was a reasonable possibility that a properly
instructed jury would have reached a different result. This determination
is not challenged on appeal.