Despres v. Commissioner of Correction , 166 Conn. App. 572 ( 2016 )

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MARK DESPRES v. COMMISSIONER OF
CORRECTION
(AC 37566)
DiPentima, C. J., and Lavine and Alvord, Js.
Argued April 6—officially released June 28, 2016
(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
April E. Brodeur, assigned counsel, for the appel-
lant (petitioner).
Lawrence J. Tytla, supervisory assistant state’s attor-
ney, with whom was Michael L. Regan, state’s attorney,
for the appellee (respondent).
Opinion
ALVORD, J. Following a grant of certification to
appeal by the habeas court, the petitioner, Mark Des-
pres, appeals from the judgment of the habeas court
denying his second petition for a writ of habeas corpus.
On appeal, the petitioner claims that the habeas court
(1) ‘‘used an erroneous standard and analysis’’ in
rejecting his claim that the ineffective assistance of his
counsel at sentencing deprived him of his right to appeal
from the judgment of conviction on his guilty pleas,
and (2) ‘‘used an erroneous analysis’’ in rejecting his
claim that the judge who presided over his first habeas
trial should have been recused because his involvement
in pretrial matters of the petitioner’s criminal prosecu-
tion created an appearance of impropriety. We disagree
and, accordingly, affirm the judgment of the habeas
court.
The record reveals the following relevant facts and
procedural history. On March 10, 1994, the petitioner
murdered Anson B. Clinton III at the request of former
Attorney Haiman Clein. Clein was having an affair with
an associate in his law firm, former Attorney Beth Ann
Carpenter, whose sister was married to Clinton. Carpen-
ter was engaged in a custody dispute over the daughter
of her sister. Carpenter asked Clein to kill Clinton, and
Clein hired the petitioner to commit the murder.1 Clein
told the petitioner that he was involved with a woman
whose niece was being abused by Clinton, and that the
only way to stop the abuse was to kill Clinton.
Through a newspaper advertisement, the petitioner
discovered that Clinton was selling a tow truck. The
petitioner called Clinton and made arrangements to
meet him at a designated time and place to discuss his
interest in purchasing the truck. The petitioner brought
his fifteen year old son to the meeting and, after a brief
conversation, Clinton agreed to show them the truck.
The petitioner and his son followed Clinton on Inter-
state 95 to an exit in East Lyme. The petitioner flashed
his headlights, indicating that he wanted Clinton to pull
over to the side of the roadway. After stopping, Clinton
and the petitioner exited their vehicles and Clinton
approached the petitioner. The petitioner then shot
Clinton multiple times and ran over his body while
speeding away from the scene when he saw headlights
approaching the area. Clinton died from gunshot
wounds to his head and upper body.
The petitioner was arrested in connection with Clin-
ton’s death and, ultimately, was charged with capital
felony murder in violation of General Statutes (Rev. to
1994) § 53a-54b, murder in violation of General Statutes
§ 53a-54a, and conspiracy to commit murder in violation
of General Statutes §§ 53a-48 and 53a-54a. Prior to his
trial date, the petitioner and the state engaged in exten-
sive plea negotiations. At that time, he was represented
by Attorney Michael Fitzpatrick. Fitzpatrick investi-
gated the case in preparation for trial on the capital
felony murder charge, which exposed the petitioner to
the death penalty, and hired a forensic psychiatrist and
a sentencing consultant. The forensic psychiatrist deter-
mined that the petitioner was competent to stand trial
and that he had not been suffering from any mental or
emotional condition at the time he murdered Clinton.
He also determined that there were some mitigating
factors that could be used during the sentencing phase
of the trial. The petitioner was fully engaged in assisting
with his defense and in discussing the state’s plea offers
with Fitzpatrick.
On May 6, 1997, which was during jury selection for
the scheduled criminal trial, the petitioner and the state
reached a plea agreement. The agreement, reduced to
writing and signed by the petitioner, provided that he
would plead guilty to murder and conspiracy to commit
murder in exchange for a recommended sentence of
forty-five years incarceration, with the right to argue
for less time. The agreement further provided that if
the petitioner cooperated with the state in its prosecu-
tions of Clein and Carpenter, the charge of capital felony
murder would be nolled at the time of his sentencing.2
The petitioner pleaded guilty to murder and conspiracy
to commit murder that same day, and was canvassed
thoroughly by the court, Clifford, J., with respect to
the terms of the plea agreement. The matter was then
continued for sentencing pending the resolution of his
codefendants’ cases. See footnote 2 of this opinion.
Soon after entering his guilty pleas, the petitioner
began expressing his dissatisfaction with his agreed
upon sentence and threatened to discontinue his coop-
eration with the state unless a more beneficial plea
agreement could be reached. He also threatened to
engage in a hunger strike. He filed motions to withdraw
his guilty pleas, and motions to discharge his attorney
and to proceed as a self-represented party. When Car-
penter was criminally prosecuted for her role in Clin-
ton’s death, the petitioner refused to testify at her trial.
On April 22, 2002, the state’s attorney notified the peti-
tioner that he had violated the terms of the plea
agreement. It was unclear at that time whether the state
would vacate the agreement and proceed to trial or
seek to negotiate an agreement less favorable to the
petitioner.
A few months prior to the petitioner’s scheduled sen-
tencing in February, 2003, the petitioner consulted with
Attorney Jon Schoenhorn to discuss representation at
the sentencing hearing. The petitioner decided to retain
Schoenhorn, who succeeded in convincing the state not
to vacate the plea agreement. Accordingly, the peti-
tioner did not lose the benefits of that agreement, and
his sentence was capped at forty-five years. Although
Schoenhorn argued for a lesser period of incarceration
at the sentencing hearing, Judge Clifford imposed a
forty-five year sentence because of the heinous nature
of the crime and the petitioner’s failure to cooperate
fully with the state at Carpenter’s trial. The petitioner
did not appeal from the judgment of conviction.3
Several months after the sentencing, the petitioner
contacted Schoenhorn and raised the issue of appealing
his convictions. The petitioner subsequently filed a
motion to correct an illegal sentence, which was denied
by the trial court and affirmed on appeal. State v. Des-
pres, 107 Conn. App. 164, 165, 167, 944 A.2d 989, cert.
denied, 288 Conn. 904, 953 A.2d 649 (2008). He then
filed his first petition for a writ of habeas corpus, claim-
ing that his pleas were not intelligently or knowingly
made because Fitzpatrick failed to explain the plea
canvass to him. The petitioner was represented by
Attorney Laljeebhai Patel during the first habeas trial.
The first habeas court, Hon. Joseph J. Purtill, judge
trial referee, denied his petition on February 1, 2011.
The petitioner appealed to this court, but later withdrew
that appeal.
On February 1, 2011, the petitioner filed his second
habeas petition, which is the subject of the present
appeal. Although he raised several issues in his petition,
the relevant claims were that (1) his counsel at his
sentencing proceeding, Schoenhorn, provided ineffec-
tive assistance because he failed to advise him of his
right to appeal his convictions, (2) his counsel at his
first habeas trial, Patel, provided ineffective assistance
because he failed to move to recuse Judge Purtill from
presiding over the trial even though Judge Purtill had
presided over many of the petitioner’s pretrial criminal
proceedings, and (3) Judge Purtill should have recused
himself sua sponte from presiding over the petitioner’s
first habeas trial because of his involvement in the peti-
tioner’s pretrial criminal proceedings. Both parties filed
pretrial briefs. On May 6, 2014, the court, Cobb, J., held
a trial on the petitioner’s second habeas petition. In
addition to the submission of various exhibits, the peti-
tioner testified and called Fitzpatrick, Schoenhorn and
Patel as his witnesses. At his request, the petitioner
was permitted to file a posttrial brief. The respondent,
the Commissioner of Correction, declined to file a post-
trial brief.
The court issued its memorandum of decision on
November 6, 2014, in which it made the following deter-
minations: (1) the petitioner did not tell Schoenhorn
that he wished to proceed to trial; (2) Schoenhorn was
retained to convince the state not to vacate the plea
agreement so that the petitioner would receive the bene-
fit of a maximum sentence of forty-five years; (3)
Schoenhorn did not believe that there was any basis to
appeal the convictions and did not recall the petitioner
asking him to file an appeal; (4) if the petitioner had
expressed the desire to appeal, Schoenhorn would have
provided him with the necessary appeal forms; (5) the
petitioner did not inform Schoenhorn that he wished
to appeal his convictions, after pleading guilty, until
months after his convictions; (6) there was no reason
for Schoenhorn to believe that the petitioner would
want to appeal because the petitioner had received a
very favorable plea bargain in a notorious murder for
hire case and avoided the death penalty; (7) the peti-
tioner failed to demonstrate that there were any nonfriv-
olous grounds to appeal; (8) Patel did not move to
recuse Judge Purtill because he saw no basis for seeking
his recusal; (9) although the petitioner raised the issue
of Judge Purtill’s recusal in his pretrial brief, he did not
raise that issue in his posttrial brief, ‘‘leaving the court
to wonder if he [was] still pursuing this claim’’; (10)
the petitioner provided no evidence to establish that
Judge Purtill was ‘‘implicitly or explicitly biased’’ in the
petitioner’s first habeas trial; (11) the petitioner’s first
habeas trial did not involve any matter that Judge Purtill
previously had decided in the petitioner’s criminal pro-
ceeding; and (11) the petitioner provided no legal
authority that would require the recusal of Judge Purtill
under the circumstances of this case. Accordingly, the
habeas court denied the petitioner’s second petition for
a writ of habeas corpus. This appeal followed.
I
The petitioner’s first claim is that the habeas court
‘‘used an erroneous standard and analysis’’ in rejecting
his claim that the ineffective assistance of Schoenhorn,
his counsel at sentencing, deprived him of his right to
appeal from the judgment of conviction on his guilty
pleas. Specifically, he argues that his claim at the second
habeas trial was that Schoenhorn knew or should have
known that the petitioner would want to appeal his
guilty pleas, but that Schoenhorn advised the petitioner
that he had no right to appeal a guilty plea, thereby
depriving the petitioner of his right to a direct appeal.
The petitioner maintains that the court misconstrued
his claim and denied his petition on the basis that
Schoenhorn had not been retained for the purpose of
representing him on appeal.4 Whether the court applied
the proper legal standard is a question of law and sub-
ject to plenary review. See Duart v. Dept. of Correction,
116 Conn. App. 758, 764, 977 A.2d 670 (2009), aff’d, 303
Conn. 479, 34 A.3d 343 (2012).
Appropriately relying on Ghant v. Commissioner of
Correction, 255 Conn. 1, 9–10, 761 A.2d 740 (2000), as
reaffirmed in State v. Turner, 267 Conn. 414, 433, 838
A.2d 947, cert. denied, 543 U.S. 809, 125 S. Ct. 36, 160
L. Ed. 2d 12 (2004), the habeas court concluded that
Schoenhorn had a constitutional obligation to inform
the petitioner of his appeal rights if the petitioner rea-
sonably demonstrated to Schoenhorn his interest in
filing an appeal or if a rational defendant would want
to appeal under the circumstances. With respect to prej-
udice, the petitioner would have to demonstrate that,
but for Schoenhorn’s failure to consult with him about
an appeal, he would have timely appealed the convic-
tions on his guilty pleas. Ghant v. Commissioner of
Correction, supra, 255 Conn. 10. The habeas court
appropriately noted that this determination depends in
part on whether the petitioner demonstrated that there
were nonfrivilous grounds to appeal. Id.
Utilizing these standards, the court made the factual
finding that ‘‘[the] petitioner did not inform Attorney
Schoenhorn that he wished to appeal from his convic-
tion, after pleading guilty, and did not express any inter-
est in a possible appeal to Attorney Schoenhorn until
months after his conviction and the time for appealing
had long passed.’’5 Moreover, the court determined that
there would have been no reason for Schoenhorn to
believe that the petitioner wished to appeal because he
had been retained to preserve the plea agreement, cap
the petitioner’s sentence at forty-five years, and avoid
the possibility of a death sentence for a charge of capital
felony murder.6
Additionally, the habeas court concluded that the
petitioner failed to demonstrate that he had any nonfriv-
olous grounds to appeal. At the habeas trial, the peti-
tioner claimed that he would have appealed from the
trial court’s denial of his right to represent himself and
the trial court’s denial of his motions to withdraw his
guilty pleas. The habeas court concluded that the peti-
tioner failed to provide ‘‘an adequate legal or factual
record’’ with respect to those claims. The motions failed
to state reasons for the relief requested, and no tran-
scripts were submitted that demonstrated that the
motions were pursued and denied by the trial court.
According to the habeas court, ‘‘[o]ther than some gen-
eral platitudes and arguing that the petitioner preserved
these issues for appeal, the petitioner’s brief is devoid
of any argument to establish the nonfrivolous nature
of these issues for the purpose of appeal.’’ The record
supports the habeas court’s determinations.
Accordingly, with respect to the petitioner’s first
claim, we conclude that the habeas court applied the
proper legal standard and analysis, and that the record
supports the court’s determination that the petitioner
failed to demonstrate that Schoenhorn rendered inef-
fective assistance.
II
The petitioner’s next claim is that the habeas court
violated his constitutional right to due process when it
‘‘used an erroneous analysis’’ in rejecting his claim that
the judge who presided over his first habeas trial should
have been recused because his involvement in pretrial
matters of the petitioner’s criminal prosecution created
an appearance of impropriety. In his habeas petition, the
petitioner alleged that (1) Patel, as his habeas counsel,
rendered ineffective assistance when he failed to move
for the recusal of Judge Purtill as the judge presiding
over his first habeas trial, and (2) Judge Purtill should
have sua sponte recused himself. The petitioner argues
that his claimed basis for the recusal was the appear-
ance of impropriety, but that the habeas court denied
his petition because he failed to demonstrate actual
bias on the part of Judge Purtill.7 For that reason, the
petitioner argues that the court misconstrued his claim
and applied an incorrect analysis. The petitioner’s claim
is subject to plenary review. See Duart v. Dept. of Cor-
rection, supra, 116 Conn. App. 764.
At the habeas trial, the petitioner presented evidence
that Judge Purtill had presided over a number of his
pretrial matters, including, inter alia, the signing of the
arrest warrant, the appointment of a special public
defender, the appointment of new counsel, the granting
of a motion to preserve evidence, and the sealing of a
letter that the petitioner wrote to Judge Purtill.8 In its
memorandum of decision, the habeas court stated that
Patel credibly testified that he did not seek to recuse
Judge Purtill ‘‘because he did not see any basis for doing
so.’’9 Further, the court determined that ‘‘the petitioner
has provided no evidence that Judge Purtill was implic-
itly or explicitly biased in the petitioner’s habeas case.
The prior habeas case did not involve any matter that
Judge Purtill had previously decided in the petitioner’s
criminal case.’’ Finally, the court stated: ‘‘[T]he peti-
tioner has provided no legal authority, and the court is
aware of none, that would require recusal under these
circumstances.’’10
Contrary to the petitioner’s argument, the habeas
court did not focus solely on the absence of actual bias,
but, rather, focused on the lack of evidence to show
any potential impropriety under the circumstances of
the case. The habeas court could not have concluded
otherwise without engaging in pure speculation.
‘‘[S]peculation is insufficient to establish an appearance
of impropriety. . . . [A] factual basis is necessary to
determine whether a reasonable person, knowing all of
the circumstances, might reasonably question the trial
judge’s impartiality. . . . Vague and unverified asser-
tions of opinion, speculation and conjecture cannot sup-
port a motion to recuse . . . .’’ (Internal quotation
marks omitted.) McKenna v. Delente, 123 Conn. App.
137, 144, 1 A.3d 260 (2010).
We conclude that the court applied the appropriate
legal principles and that the record supports its determi-
nations that Patel did not render ineffective assistance
by failing to seek Judge Purtill’s recusal, and that the
petitioner’s due process rights were not violated when
Judge Purtill failed to recuse himself sua sponte from
presiding over the first habeas trial.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The petitioner agreed to commit the murder for $8500, which amount
was later reduced by Clein.
2
The plea agreement provided in relevant part: ‘‘This cooperation shall
take place in the form of answering any questions as put to him by the
Connecticut State Police and the State’s Attorney’s Office, by testifying
truthfully in any subsequent trial or hearing arising from the death of Anson
Clinton III and by volunteering any information he knows to be relevant,
whether or not he is asked.’’ If the state’s attorney’s office determined that
the petitioner had not been cooperative and truthful, the agreement provided
that the state’s attorney could proceed to trial on the capital felony murder
charge that exposed the petitioner to the death penalty.
3
Both parties agree that the record does not reflect that the petitioner
was advised by Judge Clifford or the clerk of the court of his right to appeal
at the time of sentencing. Practice Book § 43-30 requires notification of the
right to appeal only ‘‘[w]here there has been a conviction after a trial . . . .’’
As our Supreme Court noted in D’Amico v. Manson, 193 Conn. 144, 149
n.3, 476 A.2d 543 (1984): ‘‘Apparently the reason for excluding convictions
resulting from guilty pleas from the notification requirement was to avoid
the confusion which had resulted in filing frivolous appeals by defendants
who had pleaded guilty.’’
4
As one of the reasons for concluding that Schoenhorn did not render
ineffective assistance, the court provided the following analysis in its memo-
randum of decision: ‘‘[T]he petitioner has not proven that Attorney Schoenh-
orn was retained for purposes of representing the petitioner on appeal.
Rather, he was retained to represent the petitioner at his sentencing and,
in particular, to convince the state not to withdraw the plea agreement after
the petitioner failed to cooperate with the state in the codefendants’ cases.
The court is not aware of any rule or case, and the petitioner has cited
none, that requires trial counsel, or counsel retained for a specific purpose,
to continue to represent the petitioner on appeal or to file an appeal on the
petitioner’s behalf when he has not been retained to do so.’’
After reviewing the petitioner’s amended petition for a writ of habeas
corpus, his pretrial brief and his posttrial brief, we agree with the petitioner
that the issue before the habeas court was whether Schoenhorn’s perfor-
mance was deficient because he failed to properly advise the petitioner of
his appellate rights. Nevertheless, as discussed in this opinion, the court
referenced the applicable case law and legal principles in its determination
that Schoenhorn did not render ineffective assistance. The court’s previously
quoted reason in its memorandum of decision was irrelevant to the issue
before the court and not helpful in its analysis of the petitioner’s claim. The
remaining reasons for the court’s conclusion, however, are supported by
the record and are a sufficient basis for the court’s determination that the
petitioner failed to prove his ineffective assistance claim against Schoenhorn.
5
Although the petitioner testified at the habeas trial that he asked Schoenh-
orn about filing an appeal and that Schoenhorn informed him that he could
not appeal because he had entered guilty pleas, it is clear from the court’s
factual finding that it did not find the petitioner to be credible. ‘‘The habeas
judge, as the trier of facts, is the sole arbiter of the credibility of witnesses
and the weight to be given their testimony.’’ (Internal quotation marks
omitted.) Taylor v. Commissioner of Correction, 284 Conn. 433, 448, 936
A.2d 611 (2007).
6
At the habeas trial, Schoenhorn testified that the petitioner never
expressed a desire to proceed as a self-represented party or to proceed to
trial. The petitioner only inquired whether Schoenhorn could negotiate a
better plea agreement with the state.
As pointed out by the respondent, there was no reason the petitioner
would seek to appeal and expose himself to prosecution for a capital offense
and greater punishment, when Schoenhorn had been retained to preserve
the plea agreement and to limit the petitioner’s incarceration to a maximum
of forty-five years.
7
On appeal, the petitioner does not claim that recusal was required
because of actual bias. We note that a judge’s failure to disqualify himself
or herself will implicate the due process clause only when the right to
disqualification arises from that judge’s actual bias. State v. Canales, 281
Conn. 572, 594–95, 916 A.2d 767 (2007).
8
Although the petitioner presented evidence of the letter’s existence, he
did not present evidence of the letter’s contents.
9
The court noted that the petitioner did not even address this claim in
his posttrial brief, although he had mentioned it in his pretrial brief.
10
The court noted that there are statutes that expressly prohibit a judge’s
involvement in subsequent proceedings under certain enumerated situa-
tions. For example, General Statutes § 51-183c prohibits a judge who tried
a case without a jury from retrying that case if a new trial is granted or the
judgment is reversed by our Supreme Court. That statute further prohibits
a judge who has presided over a jury trial from presiding over the retrial
of the case if a new trial is granted. General Statutes § 51-183h prohibits a
judge from presiding at the hearing of any motion that attacks the validity
or sufficiency of any bench warrant of arrest that the judge has signed.
General Statutes § 54-86c (b) provides that a judge who conducts an ex
parte in camera hearing to determine whether information or material in a
criminal case is exculpatory may not preside over the case if it is tried to
the court.