Godfrey v. Commissioner of Correction ( 2021 )

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ROBERT C. GODFREY v. COMMISSIONER
OF CORRECTION
(AC 42890)
Bright, C. J., and Prescott and Suarez, Js
Syllabus
The petitioner, who had pleaded guilty to murder, appealed to this court
from the judgment of the habeas court, which denied his petition for a
writ of habeas corpus. The petitioner alleged, inter alia, that his guilty
plea should be vacated pursuant to the doctrine of frustration of purpose
because the subsequent abolishment of the death penalty in Connecticut
frustrated his principal purpose in accepting the plea agreement, namely,
to avoid the death penalty. The relief he sought was a judgment vacating
the original plea agreement and the remand of his case for resentencing
in accordance with a plea that would have been negotiated had the
death penalty been unavailable. The habeas court, after a trial at which
both of the petitioner’s trial counsel testified, concluded that the peti-
tioner failed to prove that his principal purpose for agreeing to enter a
guilty plea was substantially frustrated by the subsequent abolition of
the death penalty and that he had assumed the risk that the death penalty
subsequently might be abolished. On the granting of certification, the
petitioner appealed to this court. Held that the petitioner cannot prevail
on his claim that he was entitled to relief under the frustration of purpose
doctrine because, even if this court assumed that the frustration of
purpose doctrine applied to plea agreements, by accepting the plea
agreement, contract principles dictate that the petitioner assumed the
risk that at some point the death penalty could be abolished: the record
demonstrated that the terms of the agreement were unambiguous, that
the petitioner was fully aware of the consequences of his bargain, and
the parties, having been made aware of the potential for future favorable
changes to the law, intended for the plea agreement to remain enforce-
able notwithstanding any future changes to the law, including the subse-
quent abolition of the death penalty in Connecticut, which did not change
the petitioner’s expectations under the agreement, namely, that he serve
a full sixty year sentence and not be permitted to appeal or withdraw his
guilty plea after the court imposed the agreed upon sentence; moreover,
although the petitioner may have miscalculated the likely penalties
attached to alternative courses of action, an individual cannot withdraw
a guilty plea merely because a subsequent change in the law rendered
the maximum penalty for the crime in question less than was reasonably
assumed at the time the plea was entered, even when the maximum
penalty at issue was death, and any such miscalculation did not provide
a basis to grant habeas relief to the petitioner regarding his guilty plea;
furthermore, as our Supreme Court unequivocally has rejected the ame-
lioration doctrine, which provides that amendments to statutes that
lessen their penalties are applied retroactively, it would be improper to
vacate the petitioner’s guilty plea pursuant to the frustration of purpose
doctrine, which in this instance is the functional equivalent of applying
the amelioration doctrine and which would work a substantial injustice
on the state in new plea negotiations as the petitioner would enjoy a
much greater degree of leverage than in the first negotiation because
of the numerous difficulties attendant to securing a conviction at trial
nearly twenty years after the crime was committed, including evidence
that has become stale, memories that have faded, and witnesses that
may no longer be available.
Argued October 8, 2020—officially released February 23, 2021
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, Bhatt, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
Vishal K. Garg, assigned counsel, for the appellant
(petitioner).
Tamara Grosso, assistant state’s attorney, with
whom, on the brief, were Laurie N. Feldman, deputy
assistant state’s attorney, and Gail P. Hardy, former
state’s attorney, for the appellee (respondent).
Opinion
PRESCOTT, J. This appeal presents the important
question of whether, under the common-law contrac-
tual ‘‘frustration of purpose’’ doctrine, a habeas peti-
tioner who had been charged with a capital felony and
pleaded guilty to murder in order to avoid the imposi-
tion of the death penalty is entitled to withdraw his
guilty plea sixteen years later because the death penalty
has since been abolished. We conclude that, even if the
frustration of purpose doctrine applies to criminal plea
agreements, the petitioner, Robert C. Godfrey, is not
entitled to relief under that doctrine because by entering
into the plea agreement, he assumed the risk that the
death penalty might be abolished at some point while he
was serving his sentence of sixty years of incarceration.
The petitioner appeals from the judgment of the
habeas court denying his petition for a writ of habeas
corpus.1 On appeal, the petitioner claims that the court
improperly concluded that he was not entitled to habeas
relief with respect to a collateral attack on his guilty
plea because (1) he failed to prove that his principal
purpose for entering into a guilty plea with an agreed
upon sixty year sentence was substantially frustrated
by the subsequent abolition of the death penalty and
(2) he had assumed the risk that the law might change in
his favor.2 We conclude that the habeas court properly
determined that the petitioner had assumed the risk
that the death penalty might be abolished at some point
while he was serving his sixty year sentence, and, there-
fore, we do not reach his first claim. Accordingly, we
affirm the judgment of the habeas court.
The following facts and procedural history are rele-
vant to our disposition of the petitioner’s claims.3 On
November 9, 2001, the East Hartford police responded
to apartment 209 of an apartment complex on a report
that a woman was found dead. Upon arrival, the police
observed the woman’s nude body, with a large open
wound to the back of her head, lying face down next
to the bed. There were large amounts of blood on the
walls, the bed, and the floors of the apartment. In the
kitchen, there were what appeared to be bloody foot-
prints. The footprints led from apartment 209, up the
outer staircase, to the door of apartment 309, which is
where the petitioner lived. When the petitioner first was
interviewed by the police, he indicated that he knew
the victim, and that they may have had a few beers
together, but he did not know how the bloody footprints
could have ended up outside of his doorway. The peti-
tioner consented to the taking of a DNA sample, which
later was determined by the medical examiner to match
the semen found in the victim. The cause of the victim’s
death was cranial cerebral trauma, caused by ten to
fifteen blows from a sharp instrument. A search warrant
was executed at the petitioner’s apartment, where the
police found bloody footprints inside, which later were
determined to match the petitioner’s own footprints,
and clothes stained with the victim’s blood.
On November 27, 2001, the petitioner was charged
with capital felony in violation of General Statutes (Rev.
to 2001) § 53a-54b (7), murder in violation of General
Statutes § 53a-54a, felony murder in violation of General
Statutes § 53a-54c, two counts of burglary in the first
degree in violation of General Statutes § 53a-101 (a) (1)
(2), and two counts of sexual assault in the first degree
in violation of General Statutes § 53a-70 (a) (1). There-
after, the petitioner entered into a plea agreement with
the state. Pursuant to the agreement, the state filed a
substitute information charging the petitioner with one
count of murder in violation of § 53a-54a (a), to which
he agreed to plead guilty in exchange for a sentence of
sixty years of incarceration. On March 11, 2004, the
court canvassed the petitioner regarding his guilty plea.
Through that canvass, the court determined, inter alia,
that the petitioner understood that (1) the guilty plea
was ‘‘for keeps,’’ meaning that he would not be permit-
ted to ‘‘change his mind later and take it back,’’ (2) he
could not withdraw his guilty plea ‘‘unless the court
doesn’t impose a sentence agreed upon,’’ (3) he was
‘‘giving up any rights to an appeal,’’ and (4) the sentenc-
ing statute required that he serve the sixty years ‘‘day
for day.’’ The court found that there was a factual basis
for the petitioner’s guilty plea and that it was knowingly
and voluntarily made. The court then accepted the plea
and later sentenced the petitioner, consistent with the
plea agreement, to a term of sixty years of impris-
onment.
On April 25, 2012, No. 12-5 of the 2012 Public Acts
(P.A. 12-5) was signed into law, prospectively repealing
the death penalty for all crimes committed on or after
that date, and retaining the death penalty for capital
felonies committed prior to that date. Three years later,
our Supreme Court, in State v. Santiago, 318 Conn. 1,
119, 122 A.3d 1 (2015), held that the imposition of the
death penalty on offenders who committed capital
crimes prior to the enactment of P.A. 12-5 would violate
article first, §§ 8 and 9, of the Connecticut constitution,
thus effectively abolishing the death penalty in Con-
necticut.
Following the release of the Santiago decision, the
petitioner filed a petition for a writ of habeas corpus.
On April 17, 2018, the petitioner filed an amended peti-
tion that alleged ineffective assistance of trial counsel
in count one and, in count two, that his guilty plea
should be vacated pursuant to the doctrine of frustra-
tion of purpose because the abolishment of the death
penalty in Connecticut frustrated his principal purpose
in accepting the plea agreement, namely, to avoid the
death penalty. The relief sought in the petition is a
judgment vacating the original plea agreement and the
remand of his case for resentencing ‘‘in accordance
with the plea that would have been negotiated had the
death penalty been unavailable.’’ The respondent, the
Commissioner of Correction, filed a return on May 21,
2018, in which he asserted that the petitioner failed to
state a ground on which relief can be granted, and
raised the defense of procedural default. Thereafter,
the respondent filed a motion to dismiss count two of
the petition on the same grounds alleged in the return.
At the habeas trial, on September 4, 2018, the petitioner
withdrew count one of the petition and three witnesses
testified, including the petitioner and both of his trial
counsel, as to count two.
Specifically, both trial counsel testified, inter alia,
that they recommended to the petitioner that he plead
guilty because there was a significant likelihood that
he would receive the death penalty if the case went to
trial because of the ‘‘horrific’’ nature of the crime and
the weakness of evidence regarding any mitigating fac-
tors that might persuade the jury to decline to vote in
favor of the death penalty.4 One of the petitioner’s trial
counsel, Attorney Barry Butler, stated that he advised
the petitioner that a sixty year sentence, which he would
be required to serve in full, thereby rendering him ineli-
gible for release until he is approximately ninety years
old, was more favorable than a life sentence without
the possibility of parole because of the potential for
future changes to the law that would make someone
with a finite sentence eligible for early release.5 Attor-
ney Butler also stated that he had discussed with the
petitioner the possibility that one day the state might
abolish the death penalty, although he did not have
a specific expectation at that time that it would be
abolished. The petitioner testified, inter alia, that
avoiding the death penalty was ‘‘somewhat important’’
to him, that he was scared of the death penalty, and
that he would not have pleaded guilty and agreed to
a sixty year sentence if the death penalty had been
unavailable. In addition, he stated that he did not want
to plead guilty to a sexual assault, which was consistent
with Attorney Butler’s testimony that pleading guilty to
sexual assault was a ‘‘deal breaker’’ for the petitioner.
The habeas court rendered judgment on March 8, 2019,
denying the amended habeas petition.6 Specifically, the
court concluded that, as a matter of first impression,
the frustration of purpose doctrine, which is typically
applied in civil cases alleging breach of contract, also
applies to criminal plea agreements. The court then
applied that doctrine and found that the petitioner failed
to prove that (1) his principal purpose for agreeing to
enter a guilty plea was substantially frustrated by the
subsequent abolition of the death penalty,7 and (2) he
did not assume the risk that the death penalty subse-
quently might be abolished.8 On March 18, 2019, the
habeas court granted the petitioner certification to
appeal the habeas court’s judgment. This appeal fol-
lowed. Additional facts will be set forth as needed.
On appeal, the petitioner claims that the habeas court
properly determined that the frustration of purpose doc-
trine applies to plea agreements, but improperly con-
cluded that he was not entitled to habeas relief because
(1) he failed to prove that his principal purpose for
entering into a guilty plea was substantially frustrated
by the subsequent abolition of the death penalty and
(2) he had assumed the risk that the law might change
in his favor. In response, the respondent argues that
this court need not decide whether the frustration of
purpose doctrine applies to plea agreements in general
or in all circumstances because, even assuming
arguendo that it does apply, the petitioner has failed
to satisfy all four factors required for its applicability.
We agree with the respondent.
We begin by setting forth certain governing principles
of law as well as our standard of review. ‘‘It is well
settled that [p]rinciples of contract law and special due
process concerns for fairness govern our interpretation
of plea agreements. . . . As has previously been
explained in the context of plea agreements, [t]he pri-
mary goal of contract interpretation is to effectuate the
intent of the parties . . . . In ascertaining that intent,
we employ an objective standard and look to what the
parties reasonably understood to be the terms of the
plea agreement on the basis of their words and conduct,
and in light of the circumstances surrounding the mak-
ing of the agreement and the purposes they sought to
accomplish. . . . [T]he threshold determination as to
whether a plea agreement is ambiguous as to the parties’
intent is a question of law subject to plenary review.’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) State v. Kallberg, 326 Conn. 1, 14–16,
160 A.3d 1034 (2017).
‘‘The doctrine of frustration of purpose . . . excuses
a promisor in certain situations where the objectives
of the contract have been utterly defeated by circum-
stances arising after the formation of the agreement.
. . . Excuse is allowed under this rule even though
there is no impediment to actual performance. . . . A
party claiming that a supervening event or contingency
has frustrated, and thus excused, a promised perfor-
mance must demonstrate that: (1) the event substan-
tially frustrated his principal purpose; (2) the nonoccur-
rence of the supervening event was a basic assumption
on which the contract was made; (3) the frustration
resulted without the fault of the party seeking to be
excused; and (4) the party has not assumed a greater
obligation than the law imposes.’’ (Citation omitted;
internal quotation marks omitted.) Howard-Arnold,
Inc. v. T.N.T. Realty, Inc., 315 Conn. 596, 605, 109 A.3d
473 (2015). Moreover, ‘‘[t]he establishment of the
defense requires convincing proof of a changed situa-
tion so severe that it is not fairly regarded as being
within the risks assumed under the contract.’’ (Footnote
omitted.) 17A Am. Jur. 2d, Contracts § 640 (2020). ‘‘The
doctrine of frustration of purpose is given a narrow
construction so as to preserve the certainty of contracts
. . . .’’ (Footnote omitted.) Id., § 641.9
‘‘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. . . . [T]his court cannot
disturb the underlying facts found by the habeas court
unless they are clearly erroneous . . . .’’ (Citation
omitted; internal quotation marks omitted.) Brooks v.
Commissioner of Correction, 105 Conn. App. 149, 153,
937 A.2d 699, cert. denied, 286 Conn. 904, 943 A.2d 1101(2008). ‘‘The application of the habeas court’s factual
findings to the pertinent legal standard, however, pre-
sents a mixed question of law and fact, which is subject
to plenary review.’’ (Internal quotation marks omitted.)
Gaines v. Commissioner of Correction, 306 Conn. 664,
677, 51 A.3d 948 (2012). ’’The excuse of frustration [of
purpose] is a question of law, to be determined by the
court from the facts of the case.’’ 17A Am. Jur. 2d, supra,
§ 640. Accordingly, we apply a plenary standard of
review to the present case, and will not disturb the
underlying facts found by the habeas court unless they
are clearly erroneous.
I
As the respondent correctly recognizes, we do not
need to determine definitively whether the frustration
of purpose doctrine applies to plea agreements in Con-
necticut because, even if we assume, consistent with
the conclusion of numerous state and federal courts,
that it does, the petitioner would not be entitled to
relief under the doctrine because, by accepting the plea
agreement, contract principles dictate that he assumed
the risk that at some point the death penalty could be
abolished. See United States v. Morgan, 406 F.3d 135,
137 (2d Cir. 2005) (‘‘the possibility of a favorable change
in the law after a plea is simply one of the risks that
accompanies pleas and plea agreements’’), cert. denied,
546 U.S. 980, 126 S. Ct. 549, 163 L. Ed. 2d 465 (2005);
see also United States v. Bradley, 400 F.3d 459, 464
(6th Cir. 2005) (‘‘Plea bargains always entail risks for
the parties . . . [including] 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 par-
ties’ 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
. . . with the knowledge that the agreement will be
immune from challenge on appeal.’’), cert. denied, 546
U.S. 862, 126 S. Ct. 145, 163 L. Ed. 2d 144 (2005).
Here, the record is clear that the terms of the agree-
ment were unambiguous and that the petitioner was
fully aware of the consequences of his bargain. In other
words, he knew precisely what he was gaining and what
he was giving up when he opted for the certainty of
pleading guilty to a single count of murder in exchange
for a sixty year sentence, as opposed to standing trial
for capital felony, murder, felony murder, burglary in
the first degree, and sexual assault in the first degree
and facing a potential sentence of (1) death, (2) life in
prison without the possibility of parole, or (3) a sen-
tence of 100 years or more of incarceration. See United
States v. Roque, 421 F.3d 118, 123 (2d Cir. 2005) (‘‘View-
ing this plea agreement as a contract, we agree that
certain conditions have changed since the bargain was
struck. We further acknowledge that, had the parties
known what they know now . . . they might have bar-
gained differently and might even have reached a differ-
ent bargain. This is simply not relevant to whether [the
defendant’s] plea is enforceable, however. [The defen-
dant] understood fully the consequences of his bargain,
both in terms of what he was gaining and what he was
giving up. . . . [I]n opting for certainty, both parties
accepted the risk that conditions relevant to their then-
contemporary bargain, including [the law], might
change.’’ (Citations omitted; internal quotation marks
omitted.)), cert. denied sub nom. Delahoz v. United
States, 546 U.S. 1120, 126 S. Ct. 1094, 163 L. Ed. 2d
908 (2006).
Specifically, Attorney Butler advised the petitioner
that a sixty year sentence, which he would be required
to serve in full, is preferable to a life sentence without
the possibility of parole because of the potential for
future changes to the law that would make someone
with a finite sentence eligible for early release. Attorney
Butler likewise discussed with the petitioner the possi-
bility that one day the state might abolish the death
penalty. In addition, both of the petitioner’s trial counsel
recommended to him that he take the plea deal in view
of what they perceived to be a significant likelihood
that he would be convicted at trial and sentenced to
death. With this knowledge, the petitioner elected to
limit his criminal exposure, forgo a lengthy capital trial
and its attendant stress for himself and his family,10
and accept a sixty year sentence, which left open the
potential for him to be released at age ninety or earlier
if he became eligible for parole because of a favorable
change in our parole eligibility laws. Moreover, as the
trial court’s thorough canvass illustrates, the petitioner
understood that under the terms of the agreement (1)
his guilty plea was ‘‘for keeps’’ in that he would not be
permitted to ‘‘change his mind later and take it back,’’
(2) he was waiving ‘‘any rights to an appeal,’’ (3) he
could not withdraw his guilty plea unless the court did
not impose the agreed upon sentence, and (4) he would
serve a sixty year sentence ‘‘day for day.’’ See United
States v. Roque, supra, 421 F.3d 123 (‘‘In no circum-
stances . . . may a defendant, who has secured the
benefits of a plea agreement and knowingly and volunta-
rily waived the right to appeal a certain sentence, then
appeal the merits of a sentence conforming to the agree-
ment. Such a remedy would render the plea bargaining
process and the resulting agreement meaningless.’’
(Internal quotation marks omitted.)), quoting United
States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir.),
cert. denied, 509 U.S. 931, 113 S. Ct. 3060, 125 L. Ed.
2d 742 (1993). That the petitioner agreed to these unam-
biguous terms, after having been made aware of the
potential for future favorable changes to the law, indi-
cates that the parties intended for the plea agreement to
remain enforceable notwithstanding any future changes
to the law.11 See State v. Kallberg, supra, 326 Conn.
15 (‘‘An unambiguous agreement is presumptively an
accurate reflection of the parties’ intent. Thus, [when]
the language is unambiguous, we must give the contract
effect according to its terms.’’ (Internal quotation marks
omitted.)). In addition, because the petitioner’s counsel
specifically discussed with the petitioner the possibility
that one day the state might abolish the death penalty,
the fact that this ultimately happened cannot be consid-
ered ‘‘a change so severe that it is unfair to regard it
as being within the risks assumed under the contract.’’12
See 17A Am. Jur. 2d, supra, § 640.
Furthermore, the subsequent abolition of the death
penalty in Connecticut did not change the petitioner’s
expectations under the agreement, namely, that he
serve a full sixty year sentence and not be permitted
to appeal or withdraw his guilty plea after the court
imposed the agreed upon sentence. See United States
v. Archie, 771 F.3d 217, 222 (4th Cir. 2014) (‘‘[A]lthough
the law changed after [the defendant] [pleaded] guilty,
his expectations (as reflected in the plea agreement)
did not. . . . A plea agreement, like any contract, allo-
cates risk. . . . And the possibility of a favorable
change in the law occurring after a plea is one of the
normal risks that accompan[ies] a guilty plea.’’ (Cita-
tions omitted; internal quotation marks omitted.)), cert.
denied, 575 U.S. 925, 135 S. Ct. 1579, 191 L. Ed. 2d 660(2015). The petitioner struck a deal, the terms of which
were unambiguous, and he is now seeking to retain the
benefits of the bargain while reneging on his commit-
ments to not withdraw his guilty plea and serve a sixty
year sentence. See United States v. Bradley, supra, 400
F.3d 465 (‘‘[h]aving voluntarily and knowingly bar-
gained for a decrease in the number of counts charged
against him and for a decreased sentence, [the defen-
dant] cannot now extract two components of that bar-
gain . . . on the basis of changes in the law after that
bargain was struck’’). As succinctly stated by the United
States Court of Appeals for the Second Circuit, ‘‘con-
tract principles [simply] do not support [the petition-
er’s] attempt to have his cake and eat it, too.’’ (Internal
quotation marks omitted.) United States v. Roque,
supra, 421 F.3d 124.
II
We next turn to a discussion of factually related prec-
edent from other jurisdictions that informs our applica-
tion of the frustration of purpose doctrine to the peti-
tioner’s plea agreement. We begin by addressing two
lines of cases in which courts have excused a party’s
performance under a plea agreement pursuant to the
frustration of purpose doctrine. In the first line of cases,
the frustrating event at issue was a change in the law
subsequent to a criminal defendant’s guilty plea. These
cases are fundamentally distinguishable, however,
because the change in the law affected the criminality
of the conduct for which the defendant pleaded guilty.
For instance, in United States v. Bunner, 134 F.3d 1000(10th Cir.), cert. denied, 525 U.S. 830, 119 S. Ct. 81, 142
L. Ed. 2d 64 (1998), after the defendant had served three
years of a five year sentence, the United States Supreme
Court issued a decision; Bailey v. United States, 516
U.S. 137, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995); under
which the facts supporting the defendant’s plea no
longer constituted a crime. The defendant successfully
moved to vacate his sentence pursuant to 28 U.S.C.
§ 2255.13 See United States v. Bunner, supra, 1002. The
government then moved to reinstate the counts of the
original indictment that it had dismissed in exchange
for the defendant’s guilty plea. The United States Court
of Appeals for the Tenth Circuit ruled that it was proper
for the District Court to allow the government to rein-
state the counts previously dismissed because the vaca-
tur frustrated the government’s principal purpose for
entering the plea agreement. Id., 1003; see also United
States v. Moulder, 141 F.3d 568, 572 (5th Cir. 1998)
(‘‘[T]he parties’ assumptions and obligations were
altered by Bailey and the subsequent successful [28
U.S.C.] § 2255 challenges. As a result of those events
the underlying purpose of the [plea] agreement [was]
frustrated and the basis of the government’s bargain
[was] destroyed. Thus, under the frustration of purpose
doctrine, the government’s plea agreement obligations
became dischargeable.’’ (Internal quotation marks omit-
ted.)); United States v. Samuels, 454 F. Supp. 3d 595,
602–603 (E.D. Va. 2020) (‘‘[U]nder the frustration of
purpose doctrine, the [g]overnment’s obligations under
the plea agreement would become dischargeable should
[the d]efendant successfully vacate his . . . convic-
tions by way of his [28 U.S.C.] § 2255 [m]otion. . . .
Then . . . the [g]overnment could move to reinstate
the [i]ndictment . . . .’’ (Citations omitted.)), cert.
pending, United States Court of Appeals, Docket No.
20-6894 (4th Cir. June 17, 2020). The subsequent change
in the law that forms the basis for the petitioner’s claim
in the present case did not render legal the conduct for
which the petitioner pleaded guilty.
In a second line of cases in which the frustration of
purpose doctrine has been applied to plea agreements,
courts have held that the principal purpose of the agree-
ment was substantially frustrated when the specific
terms of the agreement were not actually imposed. See
United States v. Thompson, 237 F.3d 1258, 1260–61
(10th Cir.) (federal government charged defendant with
crime and defendant entered into plea agreement with
government to plead guilty in Oklahoma state court and
be sentenced to ten years of imprisonment, but when
state failed to charge defendant within applicable stat-
ute of limitations, government no longer bound by plea
agreement), cert. denied, 532 U.S. 987, 121 S. Ct. 1637,
149 L. Ed. 2d 497 (2001); United States v. Jureidini,
846 F.2d 964, 965 (4th Cir. 1988) (parties agreed that
for purposes of parole consideration defendant would
be classified as having committed category six offense
but parole board placed him in category eight); see also
United States v. Torres, 926 F.2d 321, 322, 325–26 (3d
Cir. 1991) (parties agreed that defendant’s sentencing
range was to be based on lesser quantity of drugs than
that which court ultimately relied when sentencing
defendant); United States v. Kemper, 908 F.2d 33, 37
(6th Cir. 1990) (same). These cases are readily distin-
guishable because, here, the court imposed the agreed
upon sentence, and there is no claim that the agreement
has been breached.
The cases that are most instructive to our analysis
of the assumption of risk prong of the frustration of
purpose doctrine involve defendants charged with a
capital felony, who pleaded guilty to avoid capital pun-
ishment, and, after a subsequent change in the law
that would have rendered them ineligible for the death
penalty if the new law was in place at the time they
were charged, sought to withdraw the guilty plea.14
For example, in Dingle v. Stevenson, 840 F.3d 171,
172–73 (4th Cir. 2016), cert. denied, U.S. , 137 S.
Ct. 2094, 197 L. Ed. 2d 897 (2017), the defendant, who
was seventeen years old when he pleaded guilty to
several charges to avoid the death penalty, sought to
invalidate his plea after the United States Supreme
Court held, in Roper v. Simmons, 543 U.S. 551, 125 S.
Ct. 1183, 161 L. Ed. 2d 1 (2005), that imposing capital
punishment on juvenile offenders was a violation of the
eighth amendment to the United States constitution.
The United States Court of Appeals for the Fourth Cir-
cuit rejected the defendant’s claim, holding that Roper
could not be applied retroactively to invalidate the
defendant’s guilty plea. Dingle v. Stevenson, supra, 175.
In reaching this conclusion, the court reasoned: ‘‘Con-
tracts in general are a bet on the future. Plea bargains
are no different: a classic guilty plea permits a defendant
to gain a present benefit in return for the risk that he
may have to [forgo] future favorable legal develop-
ments. [The defendant] received that present benefit—
avoiding the death penalty and life without parole—
under the law as it existed at the time. Although Roper,
in hindsight, altered the calculus underlying [the defen-
dant’s] decision to accept a plea agreement, it does
not undermine the voluntariness of his plea. . . . [T]he
tradeoff between present certainty and future uncer-
tainty is emblematic of the process of plea bargaining.
Brady [v. United States, 397 U.S. 742, 90 S. Ct. 1463,
25 L. Ed. 2d 747 (1970)] makes all that exceptionally
clear . . . .’’ Dingle v. Stevenson, supra, 840 F.3d
175–76; see also Brant v. State, 830 S.E.2d 140, 142 (Ga.
2019) (rejecting claim by defendant, who was seventeen
years old when he entered plea agreement to avoid
possibility of receiving death penalty, that his plea was
rendered involuntary by Roper).
Indeed, in Brady, the Supreme Court ruled that the
petitioner, who was charged with kidnapping pursuant
to 18 U.S.C. § 1201 (a), and had pleaded guilty to avoid
the death penalty, was not entitled to withdraw his
guilty plea in light of the court’s subsequent holding in
United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209,
20 L. Ed. 2d 138 (1968), that 18 U.S.C. § 1201 (a) was
unconstitutional. Brady v. United States, supra, 397
U.S. 743–45. The court reasoned, inter alia: ‘‘Often the
decision to plead guilty is heavily influenced by the
defendant’s appraisal of the prosecution’s case against
him and by the apparent likelihood of securing leniency
should a guilty plea be offered and accepted. Considera-
tions like these frequently present imponderable ques-
tions for which there are no certain answers; judgments
may be made that in the light of later events seem
improvident, although they were perfectly sensible at
the time. . . .
‘‘A defendant is not entitled to withdraw his plea
merely because he discovers long after the plea has
been accepted that his calculus misapprehended the
quality of the [s]tate’s case or the likely penalties
attached to alternative courses of actions. More particu-
larly, absent misrepresentation or other impermissible
conduct by state agents . . . a voluntary plea of guilty
intelligently made in the light of the then applicable
law does not become vulnerable because later judicial
decisions indicate that the plea rested on a faulty prem-
ise.’’ (Citation omitted.) Id., 756–57. In other words,
‘‘[a] plea of guilty triggered by the expectations of a
competently counseled defendant that the [s]tate will
have a strong case against him is not subject to later
attack because the defendant’s lawyer correctly advised
him with respect to the then existing law as to possible
penalties but later pronouncements of the courts, as in
this case, hold that the maximum penalty for the crime
in question was less than was reasonably assumed at
the time the plea was entered.’’ Id., 757.
As Dingle, Brant, and Brady illustrate, an individual
cannot withdraw a guilty plea merely because a subse-
quent change in the law renders the maximum penalty
for the crime in question less than was reasonably
assumed at the time the plea was entered—even when
the maximum penalty at issue was death. The natural
implication of these cases is that a criminal defendant
who negotiates a plea agreement ‘‘in the shadow of the
death penalty’’ assumes the risk that the law subse-
quently could change such that the death penalty is no
longer a permissible punishment for the crime(s) for
which the defendant originally was charged. Dingle v.
Stevenson, supra, 840 F.3d 174.
As in Brady, the petitioner here may have miscalcu-
lated the likely penalties attached to alternative courses
of action. Despite being aware that it was possible that
the state someday might abolish the death penalty, the
petitioner and his counsel possibly misjudged the likeli-
hood of this happening at some point while he was
serving his sixty year sentence. Any such miscalcula-
tion, however, does not provide a basis to grant habeas
relief to the petitioner regarding his guilty plea. See
State v. Reid, 277 Conn. 764, 788–89, 894 A.2d 963 (2006)
(‘‘[I]mperfect knowledge of future developments in the
law has no bearing on the validity of a [guilty plea].
. . . More than [thirty] years later the Supreme Court
reaffirmed Brady and explained that the [c]onstitution
. . . permits a court to accept a guilty plea, with its
accompanying waiver of various constitutional rights,
despite various forms of misapprehension under which
a defendant might labor.’’ (Citation omitted; internal
quotation marks omitted.)), citing Brady v. United
States, supra, 397 U.S. 742, and United States v. Ruiz,
536 U.S. 622, 630, 122 S. Ct. 2450, 153 L. Ed. 2d 586(2002). Accordingly, we conclude that the petitioner
has failed to satisfy the assumption of risk prong of the
frustration of purpose doctrine and, therefore, is not
entitled to any relief.
III
Finally, our conclusion that the petitioner’s guilty
plea cannot be withdrawn pursuant to the frustration
of purpose doctrine is buttressed by two policy ratio-
nales: (1) fundamental fairness; and (2) our Supreme
Court’s refusal to adopt the amelioration doctrine. We
address each of these in turn.
Our habeas corpus statute, General Statutes § 52-470
(a), requires that ‘‘the court or judge hearing any habeas
corpus shall . . . dispose of the case as law and justice
require.’’ See Summerville v. Warden, 229 Conn. 397,
415, 641 A.2d 1356 (1994). Here, if we were to hold that
the petitioner is entitled to vacate his plea agreement,
it would work a substantial injustice on the state. That
is, the case would be returned to the criminal trial court
for plea negotiations, in which the petitioner would
enjoy a much greater degree of leverage than in the
first negotiation because of the numerous difficulties
attendant to securing a conviction at trial nearly twenty
years after the crime was committed. During this time,
evidence has become stale, memories have faded, and
witnesses may no longer be available. See State v. Cole-
man, 202 Conn. 86, 91, 519 A.2d 1201 (1987) (noting
that unduly delayed trial creates ‘‘potential for inaccu-
racy and unfairness that stale evidence and dull memo-
ries may occasion’’ (emphasis in original; internal quota-
tion marks omitted)). Requiring the state to negotiate
at such a disadvantage, and actually proceed to trial
if the plea negotiations were unsuccessful, would be
fundamentally unfair to the state, which, according to
the petitioner’s own trial counsel, had a significant like-
lihood of securing a conviction against the petitioner
in 2004. This concern about fundamental fairness to
both sides further supports our decision to leave undis-
turbed the parties’ original allocation of risk in the plea
agreement and to require the petitioner to perform his
obligations accordingly.
In addition, because our Supreme Court repeatedly
has refused to adopt the amelioration doctrine, it would
be improper to vacate the petitioner’s guilty plea pursu-
ant to the frustration of purpose doctrine in this
instance where it would accomplish the same objective.
In State v. Kalil, 314 Conn. 529, 107 A.3d 343 (2014), our
Supreme Court discussed that doctrine and declined to
adopt it, stating: ‘‘In criminal cases, to determine
whether a change in the law applies to a defendant, we
generally have applied the law in existence on the date
of the offense . . . . This principle is derived from the
legislature’s enactment of saving statutes such as Gen-
eral Statutes § 54-194, which provide that [t]he repeal
of any statute defining or prescribing the punishment
for any crime shall not affect any pending prosecution
or any existing liability to prosecution and punishment
therefor, unless expressly provided in the repealing stat-
ute that such repeal shall have that effect . . . . The
amelioration doctrine, [however], provides that amend-
ments to statutes that lessen their penalties are applied
retroactively . . . . [T]his court has not previously
held that ameliorative changes to criminal statutes
apply retroactively . . . and we decline to do so in the
present case because the doctrine is in direct contraven-
tion of Connecticut’s savings statutes.’’ (Citations omit-
ted; footnote omitted; internal quotation marks omit-
ted.) Id., 552–53; see also State v. Bischoff, Conn.
, A.3d (2021) (declining invitation to overrule
Kalil and adopt amelioration doctrine).
By holding that the petitioner cannot withdraw his
guilty plea and be resentenced in accordance with the
plea that would have been negotiated if the death pen-
alty had been unavailable, we are effectively requiring
adherence to the law that was in existence on the date
of the offense. Stated differently, to allow the petitioner
to be resentenced, in accordance with the plea that
would have been negotiated if the death penalty was
not available at the time of the offense, would be the
functional equivalent of applying the amelioration doc-
trine because it would allow the petitioner to benefit
from the retroactive application of a law that lessened
the penalty for the crimes for which he originally was
charged. Because our Supreme Court unequivocally has
rejected the amelioration doctrine, it likewise is proper
for us to decline the petitioner’s invitation to reach the
same result by virtue of the frustration of purpose
doctrine.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The habeas court granted the petitioner certification to appeal from
the judgment.
2
Specifically, the petitioner challenges the habeas court’s conclusion that
he failed to satisfy two of the four prongs of the frustration of purpose test:
(1) the event substantially frustrated his principal purpose for entering into
the plea agreement; and (2) he did not assume the risk that the event
would occur.
3
We rely on the facts as found and as set forth by the habeas court in
its memorandum of decision as well as on undisputed facts disclosed in
the record.
4
The law in existence at the time was as follows: ‘‘Capital felony trials
are divided into two phases: the guilt phase and the penalty phase. . . . In
the penalty phase . . . the jury is charged with both fact-finding and non-
fact-finding tasks. . . . Its fact-finding task involves determining whether
the state has established the facts of an aggravant beyond a reasonable
doubt and whether the defendant has established the facts of a mitigant by
a preponderance of the evidence. . . . Its nonfact-finding task involves
determining, based on its reasoned and moral judgment, whether: (1) the
factually established mitigant is mitigating in nature; and (2) the aggravant
outweighs the mitigant. . . . Following this weighing process, the jury must
ultimately determine whether the defendant shall live or die, which requires
the jury to make a reasoned moral and individualized determination that
death is the appropriate punishment in the case.’’ (Citations omitted; internal
quotation marks omitted.) Peeler v. Commissioner of Correction, 170 Conn.
App. 654, 664 n.6, 155 A.3d 772, cert. denied, 325 Conn. 901, 157 A.3d
1146 (2017).
Moreover, the sentencing statute for capital felonies committed prior to
April 25, 2012, General Statutes § 53a-46a, provides in relevant part: ‘‘(d) In
determining whether a mitigating factor exists concerning the defendant’s
character, background or history, or the nature and circumstances of the
crime . . . the jury or, if there is no jury, the court shall first determine
whether a particular factor concerning the defendant’s character, back-
ground or history, or the nature and circumstances of the crime, has been
established by the evidence, and shall determine further whether that factor
is mitigating in nature, considering all the facts and circumstances of the
case. Mitigating factors are such as do not constitute a defense or excuse
for the capital felony of which the defendant has been convicted, but which,
in fairness and mercy, may be considered as tending either to extenuate or
reduce the degree of his culpability or blame for the offense or to otherwise
constitute a basis for a sentence less than death.’’ In addition, the aggravating
factors to be considered include, inter alia, whether ‘‘the defendant commit-
ted the offense in an especially heinous, cruel or depraved manner . . . .’’
General Statutes § 53a-46a (i) (4).
5
The petitioner was thirty years old when he was arrested. Attorney
Butler noted that, in light of his age, a sixty year sentence is effectively a
life sentence.
6
The court denied the respondent’s motion to dismiss in the same decision,
finding that there was no procedural default on the petitioner’s part. In
addition, with regard to habeas jurisdiction, the court determined that
because the petitioner is seeking a judgment vacating his conviction, if he
proves his claim ‘‘it may warrant habeas relief.’’ The court also suggested
that habeas review is proper because the petitioner’s claim, like claims
of ineffective assistance of counsel, requires further record development,
including testimony about the intent of the parties in entering into the
agreement and their assumptions of risk while doing so, and ‘‘this cannot
be discerned from the record of the trial proceedings below.’’ Specifically,
the court reasoned ‘‘our courts have a well established practice of deferring
review . . . to collateral review by habeas corpus in order to allow for
necessary record development.’’ (Internal quotation marks omitted.) On
appeal, the respondent does not contend that the habeas court improperly
determined that it had jurisdiction over the amended petition, therefore,
we do not address this issue further.
7
Specifically, the court found that ‘‘the [petitioner’s] purposes for entering
into this plea were to avoid the death penalty and to avoid a conviction
on a sexual assault charge.’’ (Emphasis added.) Moreover, the court rea-
soned that performance of the agreement ‘‘is not worthless’’ to the petitioner
because ‘‘he still avoids a sexual assault conviction and a potential sentence
of up to 100 years.’’
8
The court concluded that the petitioner had satisfied the other two
prongs of the test, namely (1) the nonoccurrence of the supervening event
was a basic assumption on which the contract was made, and (2) the
frustration resulted without the fault of the party seeking to be excused.
See Howard-Arnold, Inc. v. T.N.T. Realty, Inc., 315 Conn. 596, 605, 109
A.3d 473 (2015).
9
The paradigmatic example of an instance in which a party is entitled to
relief under the frustration of purpose doctrine is Krell v. Henry, 2 K.B. 740
(1903), the case in which this doctrine was first recognized. See DDS Wireless
International, Inc. v. Nutmeg Leasing, Inc., 145 Conn. App. 520, 526, 75
A.3d 86 (2013). In Krell, a spectator entered into a contract to rent an
apartment for the purpose of viewing the procession for the coronation of
King Edward VII. See id. The king became ill, the procession was cancelled,
and the spectator refused to pay for the rental. See id. When the apartment
owner sued for breach of contract, the court excused the spectator’s breach,
holding that the coronation procession was the foundation of the contract.
See id. ‘‘The court implicitly determined that had the parties contemplated
the possibility of the coronation being cancelled, they would have included
a provision in the contract allowing the spectator to terminate the contract
under those circumstances.’’ Id.10
The petitioner’s trial counsel, Attorney Fred DeCaprio, testified, and
the habeas court made a factual finding, that one of the petitioner’s consider-
ations with regard to pleading guilty included avoiding the stress of a capital
trial on himself and his family.
11
The petitioner argues that he did not assume the risk of the abolition
of the death penalty because this topic was not explicitly discussed during
the court’s canvass of him. In essence, the petitioner argues that, in the
absence of a specific provision of his plea agreement that required him to
serve the agreed upon sentence even if the death penalty was later abolished,
he cannot be deemed to have assumed that risk. We disagree.
‘‘[A] voluntary and intelligent guilty plea operates as a waiver of all nonju-
risdictional defects. . . . A plea of guilty is, in effect, a conviction, the
equivalent of a guilty verdict by a jury. . . . In choosing to plead guilty, the
defendant is waiving several constitutional rights . . . . The . . . constitu-
tional essentials for the acceptance of a plea of guilty are included in our
rules and are reflected in Practice Book §§ [39-19 and 39-20]. . . . The
failure to inform a defendant as to all possible indirect and collateral conse-
quences does not render a plea unintelligent or involuntary in a constitutional
sense.’’ (Citation omitted; internal quotation marks omitted.) State v. Reid,
277 Conn. 764, 780, 894 A.2d 963 (2006).
Specifically, ‘‘[t]he rules governing the acceptance of guilty pleas, set forth
in Practice Book §§ 39-19 and 39-20, provide that the trial court must not
accept a guilty plea without first addressing the defendant personally in
open court and determining that the defendant fully understands the items
enumerated in § 39-19, and that the plea is made voluntarily pursuant to
§ 39-20. There is no requirement, however, that the defendant be advised
of every possible consequence of such a plea. . . . Although a defendant
must be aware of the direct consequences of such a plea, the scope of direct
consequences is very narrow. . . . In Connecticut, the direct consequences
of a defendant’s plea include only the mandatory minimum and maximum
possible sentences; Practice Book § [39-19 (2) and (4)]; the maximum possi-
ble consecutive sentence; Practice Book § [39-19 (4)]; the possibility of
additional punishment imposed because of previous conviction(s); Practice
Book § [39-19 (4)]; and the fact that the particular offense does not permit
a sentence to be suspended. Practice Book § [39-19 (3)] . . . .’’ (Internal
quotation marks omitted.) State v. Greene, 274 Conn. 134, 145, 874 A.2d 750(2005), cert. denied, 548 U.S. 926, 126 S. Ct. 2981, 165 L. Ed. 2d 988 (2006).
Here, the court’s canvass was more than adequate. The canvass went beyond
apprising the petitioner of the direct consequences of his plea, even though
it was not required to do so.
Moreover, the authority on which the petitioner premises his argument
does not set forth the stringent standard for which he advocates. It merely
requires the state, ‘‘as the drafting party wielding disproportionate power,
[to] memorialize any and all obligations for which it holds the defendant
responsible. . . . The terms of the agreement should be stated clearly and
unambiguously, so that the defendant . . . knows what is expected of him
and what he can expect in return.’’ State v. Kallberg, supra, 326 Conn.
23. Kallberg also is factually distinguishable, in that the terms of the plea
agreement at issue there were ambiguous. See id., 19. In contrast, the terms
of the agreement here unambiguously set forth the petitioner’s obligations,
specifically that once the court accepted the petitioner’s guilty plea and
sentenced him to the agreed upon sixty year term of incarceration, he was
waiving his right to appeal, prohibited from withdrawing his plea regardless
of whether he later changed his mind, and required to serve every day of
his sixty year sentence. The state is not required to specifically address all
possible contingencies in a plea agreement, particularly when the terms of
the agreement make clear that the parties intended for any such future
events to not affect the petitioner’s obligations.
12
That Attorney Butler discussed this possibility with the petitioner is
one of the habeas court’s findings of fact. The court went on to conclude,
with regard to the second prong of the frustration of purpose doctrine, that
the abolition of the death penalty was not reasonably foreseeable, was not
contemplated, and could not have been anticipated by the parties. We do
not need to address the propriety of those conclusions in light of our determi-
nation that the petitioner has not satisfied the assumption of risk prong of
the frustration of purpose doctrine.
13
Title 28 of the United States Code, § 2255, provides in relevant part:
‘‘(a) A prisoner in custody under sentence of a court established by Act of
Congress claiming the right to be released upon the ground that the sentence
was imposed in violation of the Constitution or laws of the United States,
or that the court was without justification to impose such sentence, or that
the sentence was in excess of the maximum authorized by law, or is other-
wise subject to collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.’’
14
The defendants in these cases did not base their claims on the frustration
of purpose doctrine. Instead, they all argued that their guilty pleas were
rendered involuntary by a subsequent change in the law that made the death
penalty inapplicable to them. Here, the petitioner makes no such claim
regarding the voluntariness of his plea. Nevertheless, the reasoning underly-
ing these cases applies with equal force here.