Opinion
CV164007698S
03-08-2019
Robert GODFREY #296302 v. WARDEN
UNPUBLISHED OPINION
OPINION
Bhatt, J.
If an individual pleads guilty and accepts a lengthy prison sentence in order to avoid the death penalty, does subsequent abolition of the death penalty utterly defeat the purpose of entering into that plea, such that the conviction should be vacated and criminal proceedings commenced anew?
I. FACTUAL BACKGROUND
Robert Godfrey was charged with capital felony, murder, felony murder, burglary in the first degree and sexual assault in the first degree. On January 28, 2002, the court, Solomon J., found probable cause for the homicide-related offenses. On March 11, 2004, Godfrey pled guilty to a one-count substitute information charging murder in exchange for an agreed-upon sentence of sixty years incarceration. This sentence was imposed on April 8, 2004. In 2012, our legislature passed Public Acts 2012, No. 12-5, which repealed the death penalty for crimes occurring after the effective date of the act. Subsequently, our Supreme Court abolished the death penalty for all individuals, including those already on death row. State v. Santiago, 318 Conn. 1, 122 A.3d 1 (2015). After Santiago, Godfrey filed the instant petition for writ of habeas corpus. An amended petition was filed on April 17, 2018, which alleged ineffective assistance of trial counsel in count one and that his plea should be withdrawn pursuant to the doctrine of frustration of purpose in count two. On the date of trial, counsel withdrew count one.
Neither party submitted any evidence regarding the repeal of the death penalty or our Supreme Court’s retroactive application of the same. However, this court takes judicial notice of the repeal and its impact. Perkins v. Coffin, 84 Conn. 275, 304, 79 A. 1070 (1911).
II. FINDINGS OF FACT
Three witnesses testified at trial: the petitioner and the attorneys who represented him: Barry Butler and Fred DeCaprio. The parties submitted exhibits.
Attorney Butler . Attorney Butler, at the time the petitioner’s criminal case was pending, was an attorney in the Capital Defense and Trial Services Unit of the Office of Chief Public Defender. His job was to represent individuals exposed to the death penalty. At the time of the plea it was his understanding that the petitioner would serve "day for day" of the sentence and thus would not be eligible for release until he was either eighty-nine or ninety years old. To him there was a practical difference between a sentence of sixty years incarceration and a sentence of life without the possibility of parole because there may be future changes to the law that would make someone with a finite sentence eligible for early release. He did, acknowledge, however, that for someone who was thirty at the time of sentencing, a sentence of sixty years was an effective life sentence.
Avoiding the death penalty was "part of the reason" he recommended the plea to the petitioner and that it was "very important" that he not face death. He acknowledged that there were several reasons for his recommendation that the petitioner plead guilty, but "avoiding the death penalty was right up there." He was extremely concerned that the petitioner would be sentenced to death in this case because the "crime itself was horrific" and they "did not have an extensive mitigation case for the penalty phase," nor was it a strong one. There was no "mental state defense" to the offenses charged. While avoiding the death penalty was important to him, he could not say how important it was to the petitioner, or that it was the main reason in the petitioner’s mind, although it certainly was "part of the reason" the petitioner pled guilty. The petitioner did not want to plead guilty to sexual assault and that was a "deal-breaker" for the petitioner and thus, avoiding a sexual assault conviction was one of the reasons the petitioner pled guilty.
On the subject of the repeal of the death penalty, Attorney Butler had conversations with all his capital clients about the hope that one day the state might abolish the death penalty, but at the time of the petitioner’s case, there was no specific expectation or hope that the repeal was likely. To the contrary, according to Attorney Butler, then-Governor Rell "was not going to be involved" in repealing the death penalty. The death penalty was "very real."
Attorney DeCaprio . At the time of the petitioner’s criminal case, Attorney DeCaprio was the Public Defender for the Hartford Judicial District, although prior to the petitioner’s plea, he rejoined the Capital Defense and Trial Services Unit. He, too, recommended that the petitioner plead guilty because of concerns about the mitigation case. Avoiding the death penalty was "quite important." He concurred that there was "a significant likelihood" that the petitioner would be sentenced to death after a trial. Had the death penalty not been available, his advice to the petitioner "could have been different." According to him, it was a "fair assumption" that avoiding the death penalty was a significant reason for the petitioner to plead guilty. Others reasons for pleading included avoiding the stress of a capital trial on the petitioner and his family.
As to the issue of the repeal of the death penalty, he had no expectation that it would be repealed and he did not recall talking to the petitioner about any potential repeal in the future.
Robert Godfrey . The petitioner testified that at the time of the plea he had no understanding of how much time he would serve and had he known he would have to serve day for day he probably would have taken the matter to trial. Avoiding the death penalty was "somewhat important" to him and he would not have pled guilty had the death penalty been off the table. He was scared of the death penalty but he also did not want to plead to a sexual assault, something he was adamant he did not commit.
The plea canvass reveals evidence contrary to this assertion. The prosecutor placed on the record the fact that the petitioner’s conviction would require him to serve every day of his sentence. The trial court then asked the petitioner if he had heard the prosecutor’s claim of such "day for day" service and whether that came as a surprise to him. The petitioner responded that he had heard it and it did not come as a surprise to him. Resp. Ex. M.
III. LEGAL DISCUSSION
A. RESPONDENT’S DEFENSES
In its return, the respondent asserts that the claim fails to state a ground upon which relief can be granted and further, raises the defense of procedural default. The petitioner filed a reply in which he refutes procedural default by alleging that he did not have a prior opportunity to raise this claim because the factual basis supporting the claim did not exist. He also alleges ineffective assistance of counsel as cause and prejudice to overcome any procedural default.
The respondent also filed a motion to dismiss count two on August 17, 2018, relying on the same two grounds asserted in its return. This court orally denied the motion to dismiss on the grounds that the petition failed to state a claim upon which relief can be granted. A decision as to whether the petitioner procedurally defaulted was reserved until the petitioner had an opportunity to present evidence to overcome any default. Since the defenses raised in the motion to dismiss and the return are identical, this court will address them only once.
I. Failure to State a Claim
The United States Supreme Court has held that "the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody." Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), overruled in part on other grounds by Heck v. Humphrey, 512 U.S. 477, 481-82, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Here, the petitioner claims, in a matter of first impression for our state, that his conviction should be vacated if this court finds that the doctrine of frustration of purpose applies. The petitioner’s claim, if proven, may warrant habeas corpus relief.
2. Procedural Default
While the return does not specify in what way the petitioner is alleged to have procedurally defaulted, counsel for the respondent referenced at separate times the petitioner’s failure to file a motion to withdraw his guilty plea, a motion to correct an illegal sentence or to raise the issue on direct appeal.
Respondent’s counsel refers to a "motion to vacate the plea agreement and reopen the judgment." This court interprets that to refer to a motion to withdraw the guilty plea.
"A respondent seeking to raise an affirmative defense of procedural default must file a return to the habeas petition responding to the allegations of the petitioner and alleg[ing] any facts in support of any claim of procedural default ... Only after the respondent raises the defense of procedural default in accordance with [Practice Book] § 23-30(b) does the burden shift to the petitioner to allege and prove that the default is excused." (Citations omitted; internal quotation marks omitted.) Crawford v. Commissioner of Correction, 294 Conn. 165, 175-76, 982 A.2d 620 (2009). The petitioner must demonstrate good cause and actual prejudice. Brewer v. Commissioner of Correction, 162 Conn.App. 8, 17, 130 A.3d 882 (2015).
At the outset, this court notes that the respondent’s return alleges no facts in support of its affirmative defense of procedural default. Procedural default is addressed in one sentence: "[i]n addition, to the extent that the petitioner now asserts that his guilty plea entered more than fourteen years ago was not knowing and voluntary at that time, the claim is procedurally defaulted and should be dismissed. P.B. § 23-29(5)." (Emphasis in original.) This appears to be no more than a blanket assertion of the respondent’s legal position that the claim is procedurally defaulted. Further, the claim of procedural default seems to be directed at an alleged claim of an involuntary plea. The claim in count two does not allege that the petitioner’s plea is involuntary; rather that the voluntary plea should nonetheless be rescinded because his purpose for entering that plea has been substantially frustrated by an unforeseen, subsequent event. The court further notes that despite alleging in the motion to dismiss that the claim is procedurally defaulted, the respondent does not brief that argument in its memorandum in support of its motion to dismiss. The respondent filed a post-trial brief in which there is no mention of the affirmative defense of procedural default. Indeed, in that brief, the respondent asks this court to deny the petition, as opposed to dismissing it. Our courts have repeatedly and consistently held that reviewing courts are:
not required to review issues that have been improperly presented to th[e] court through an inadequate brief ... Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly ... Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.(Citation omitted; internal quotation marks omitted.) Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003); Lewis v. Commissioner of Correction, 89 Conn.App. 850, 869, 877 A.2d 11, cert. denied, 275 Conn. 905, 882 A.2d 672 (2005). These principles also apply to the trial court. Connecticut Light & Power Co. v. Dept. of Public Utility Control, supra, 120. This court finds that the respondent has abandoned the affirmative defense of procedural default. However, to the extent that respondent’s counsel’s oral arguments during the hearing on the motion to dismiss prior to the start of evidence are sufficient to invoke the defense, this court will address the merits of that defense.
The respondent first asserts that the petitioner should have sought to withdraw his guilty plea in the trial court. The withdrawal of a guilty plea is governed by Practice Book § 39-26, which provides in relevant part that "[a] defendant may not withdraw his or her plea after the conclusion of the proceeding at which the sentence was imposed." Consistent with that, our courts have held that a trial court has no jurisdiction to consider such a motion once the sentence has been imposed. State v. Das, 291 Conn. 356, 368, 968 A.2d 367 (2009) (overruling prior cases that suggest that there existed in our jurisprudence a constitutional violation exception to the trial court’s lack of jurisdiction over a defendant’s motion to withdraw his plea after the sentence has been executed); State v. Reid, 277 Conn. 764, 894 A.2d 963 (2006). Thus, this option was unavailable to the petitioner in 2015, when our Supreme Court made repeal retroactive.
Respondent next claims that the petitioner should have filed a motion to correct his illegal sentence pursuant to Practice Book § 43-22. However, this petition is not a challenge to the legality of his sentence, but a challenge to the continued validity of his conviction. Our Supreme Court has clearly stated that "[i]n order for the court to have jurisdiction over a motion to correct an illegal sentence after the sentence has been executed, the sentencing proceeding, and not the trial leading to the conviction, must be the subject of the attack." State v. Lawrence, 281 Conn. 147, 158, 913 A.2d 428 (2007). Practice Book § 43-22 provides the trial court with extremely limited jurisdiction over a sentence once it has been imposed. It provides that "[t]he judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner." Our courts have restricted this authority to circumstances in which a sentence "either exceeds the relevant statutory maximum limits, violates a defendant’s right against double jeopardy, is ambiguous, or is internally contradictory." Cobham v. Commissioner of Correction, 258 Conn. 30, 38, 779 A.2d 80 (2001), quoting State v. McNellis, 15 Conn.App. 416, 443-44, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988). This motion in the trial court is also not available to the petitioner.
Finally, respondent referenced the possibility of an appeal during oral argument. Typically, "[a] defendant seeking to withdraw his plea after his sentence has been executed ... may file a timely appeal in accordance with Practice Book § 63-1 and request review of his unpreserved claims under Golding or the plain error doctrine." State v. Das, supra, 291 Conn. 371. He may also file a petition for writ of habeas corpus. If the claim is not first raised on direct appeal, the defendant must satisfy "the cause and prejudice standard ... for determining the reviewability of habeas claims that were not properly pursued on direct appeal." (Citation omitted; internal quotation marks omitted.) Id. To satisfy this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the claimed impropriety. Johnson v. Commissioner of Correction, 285 Conn. 556, 567, 941 A.2d 248 (2008). However, claims on appeal are limited to the trial record. In cases where a record needs to be developed, our courts have a "well established practice of deferring review ... to collateral review by habeas corpus in order to allow for necessary record development." Kaddah v. Commissioner of Correction, 324 Conn. 548, 563 n.14, 153 A.3d 1233 (2017). See also Taylor v. Commissioner of Correction, 324 Conn. 631, 646, 153 A.3d 1264 (2017) (holding that claim of structural error based on complete denial of counsel was apparent on the record and subject to procedural default). While this generally refers to claims of ineffective assistance of counsel, the frustration of purpose claim here is similarly situated. As explained below, the factors of this claim require testimony about the intent of the parties in entering into the agreement and their assumptions of risk while doing so. This cannot be discerned from the record of the trial court proceedings below. Furthermore, the time for filing an appeal has long since passed.
Simply put, procedural default exists to prevent collateral review of claims that were required to be, and could have been, raised in prior proceedings before the trial court or on direct appeal. Given the unique circumstances of this case, this court cannot conclude that the petitioner should be precluded from raising a claim of first impression in this collateral venue either because he should have raised the claim via avenues that are legally unavailable to him or at a time when it was impossible for the factual basis for claim in question to exist. Cf. Hinds v. Commissioner of Correction, 321 Conn. 56, 136 A.3d 596 (2016) (holding procedural default doctrine does not apply to collateral review of claims involving retroactive application of reconsidered definition of kidnapping in State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), where judgments were not yet final at time of that decision).
Indeed, the United States Supreme Court has stated that procedural default is designed to "impose on petitioners a burden of reasonable compliance with procedures designed to discourage baseless claims and to keep the system open for valid ones ... recognize the law’s interest in finality ... [but also give courts the] discretion to excuse pleading and procedural requirements for petitioners who could not comply with them in the exercise of reasonable care and diligence" for equitable reasons. McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). See also Sanchez v. Miller, 792 F.2d 694, 698 (7th Cir. 1986) (noting that the "underlying policy seems to be that, before either a state or federal prisoner may seek federal habeas relief, he must first present his claim to the forum initially available, primarily because of the costs associated with granting a writ of habeas corpus"). The forum "initially available" is the present one. Thus, this court concludes that the petitioner has not procedurally defaulted and that doctrine does not bar review of the merits of his claim.
Assuming, arguendo, that the petitioner has procedurally defaulted, he can still obtain merits review of his claim if he can demonstrate "cause" for failing to raise in the claim in the trial court or on appeal and "prejudice." Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Cause can be proven by pointing to some "factor external to the defense"; Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); that prohibited him from raising the claim at trial or an appeal. This includes "a showing that the factual or legal basis for a claim was not reasonably available to counsel." Id.; Strickler v. Greene, 527 U.S. 263, 283 n.24, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Here, the factual and legal bases for the claim the petitioner now raises were unavailable at the time he could have sought to withdraw his plea or appeal his conviction. It was only after our Supreme Court’s decision in Santiago that the circumstances giving rise to the alleged frustration of purpose came into being.
For the foregoing reasons, the respondent’s motion to dismiss is denied and this court will now consider the merits of count two.
B. GENERAL PRINCIPLES
The doctrine of frustration of purpose "excuses a promisor in certain situations where the objectives of the contract have been utterly defeated by circumstances arising after the formation of the agreement." Hess v. Dumouchel Paper Co., 154 Conn. 343, 350-51, 225 A.2d 797 (1966); DDS Wireless International, Inc. v. Nutmeg Leasing, Inc., 145 Conn.App. 520, 525, 75 A.3d 86 (2013). This doctrine was first recognized in the turn-of-the-twentieth-century English case of Krell v. Henry, 2 K.B. 740 (C.A.1903).
"In that case, a spectator entered into a contract to rent an apartment for the purpose of viewing the procession for the coronation of King Edward VII. When the coronation was postponed and the procession cancelled, the spectator refused to pay for the rental, breaching the contract. [Krell v. Henry, supra, 2 K.B. 740.] When the apartment owner sued, the court excused the breach, holding that the ‘coronation procession was the foundation of this contract’; id., at 751; and that ‘the object of the contract was frustrated by the non-happening of the coronation and its procession on the days proclaimed.’ Id., at 754. The court implicitly determined that had the parties contemplated the possibility of the coronation being cancelled, they would have included a provision allowing the spectator to terminate the contract under those circumstances." DDS Wireless International, Inc. v. Nutmeg Leasing, Inc., supra, 145 Conn.App. 525-26.
Thus, the doctrine of frustration of purpose acts to provide an excuse for nonperformance by a party whose purposes were thwarted by events the parties did not contemplate and could not foresee. O’Hara v. State, 218 Conn. 628, 590 A.2d 948 (1991). A party claiming that a supervening event or contingency has frustrated, and thus excused, a promised performance must demonstrate that:
(1) the event substantially frustrated his principal purpose;
(2) the nonoccurrence 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.O’Hara v. State, supra, 218 Conn. 638, n.7; 2 Restatement (Second), Contracts § 265, comment (a) (1981); 2 E. Farnsworth, Contracts (3d Ed. 2004) § 9.7, p. 652-53.
C. APPLICABILITY TO PLEA AGREEMENTS
"[P]rinciples of contract law and special due process concerns for fairness govern our interpretation of plea agreements." (Internal quotation marks omitted.) State v. Stevens, 278 Conn. 1, 7-8, 895 A.2d 771 (2006), quoting Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 167-68 (2d Cir. 2000). Thus, "[t]he validity of plea bargains depends on contract principles." State v. Garvin, 242 Conn. 296, 314, 699 A.2d 921 (1997). "Because [plea agreements] implicate the waiver of fundamental rights guaranteed to persons charged with crimes, [however, they] must ... be evaluated with reference to the requirements of due process." Innes v. Dalsheim, 864 F.2d 974, 978 (2d Cir. 1988), cert. denied, 493 U.S. 809, 110 S.Ct. 50, 107 L.Ed.2d 19 (1989); State v. Rivers, 283 Conn. 713, 724, 931 A.2d 185 (2007).
While no court in Connecticut has had occasion to apply the contract doctrine of frustration of purpose to plea agreements, several other jurisdictions have. In United States v. Bunner, 134 F.3d 1000 (10th Cir. 1998), cert. denied, 525 U.S. 830, 119 S.Ct. 81, 142 L.Ed.2d 64 (1998), Bunner pleaded guilty to using a firearm during the commission of a drug trafficking offense in exchange for the government’s agreement to dismiss the remaining counts of the indictment against him. Id., 1002. After he had served three years of a five-year prison sentence, the United States Supreme Court issued a decision under which his actions were no longer considered criminal. Id. Bunner successfully moved to vacate his sentence and the government then moved to reinstate the dismissed counts of the indictment on the ground that he had repudiated the plea agreement by attacking his sentence. Id.
The Tenth Circuit considered whether the initial plea agreement entered into continued to prohibit the government from charging Bunner with the dismissed counts. United States v. Bunner, supra, 134 F.3d 1002-03. First deciding that successfully challenging the criminality of his actions did not result in a breach of his plea agreement, the court went on to consider whether the doctrine of frustration of purpose nevertheless permitted the government to reinstate the dismissed counts. Id., 1004-05. The court opined that ordinarily parties enter into a contract with an object or purpose. Id., 1004. "These purposes form the basis of the agreement, absent which neither party would consent to be bound." Id. Occasionally, however, a "reasonably unforeseen event intervenes, destroying the basis of the contract," resulting in a situation where one party does not get the benefit of what induced him to enter into the contract in the first place. Id. "Although the supervening event does not render performance impossible, one party’s performance becomes virtually worthless to the other." Id.
Analyzing the frustration of purpose test, the court concluded that the basic assumption underlying the parties’ purposes was "their belief that the conduct [Bunner] pled guilty to amounted to a violation of [the law]." United States v. Bunner, supra, 134 F.3d 1005. The court characterized the United States Supreme Court decision as "an intervening change in the law." Id. It concluded that the district court’s decision vacating Bunner’s sentence relieved him of his obligations under the plea agreement and thus, his performance, "for all practical purposes, became worthless to the government. This resulted in the underlying purpose of the agreement being frustrated and the basis of the government’s bargain being destroyed. Thus, under the frustration of purpose doctrine, the government’s plea agreement obligations became dischargeable." Id. The government was therefore permitted to reinstate the dismissed counts.
Similarly, in United States v. Moulder, 141 F.3d 568 (5th Cir. 1998), the defendants signed plea agreements pleading guilty to using and carrying a firearm in connection with a drug offense. Id., 570. After their convictions were vacated as invalid based on the same intervening change in the law at issue in Bunner, under which the conduct that supported the plea was no longer considered criminal, the government reinstated drug charges that had been dismissed previously under the plea agreement. Id. The Fifth Circuit held that this intervening change in the law altered the parties’ assumptions and obligations and the underlying purpose of the plea agreement was frustrated and the government’s bargain was destroyed. Id., 572. Thus, the government was free of its contractual obligations pursuant to the frustration of purpose doctrine. Id.
In United States v. Thompson, 237 F.3d 1258 (10th Cir. 2001), the federal government filed a complaint against Thompson charging him with distribution of crack cocaine. Id., 1260. He subsequently entered into a plea agreement with the government wherein he agreed to plead guilty to the same charge in Oklahoma state court and receive a ten-year sentence in exchange for his cooperation with federal authorities. Id. Pursuant to the plea arrangement, the government dismissed its complaint against Thompson. Id. The state of Oklahoma, however, filed its information against Thompson outside the statute of limitations period. Id. On that ground, the state charges against Thompson were withdrawn and the federal government subsequently sought to re-prosecute him. Id.
Applying the frustration of purpose doctrine, the Tenth Circuit once again concluded that the government’s fundamental purpose in entering into the plea agreement was to obtain a conviction and sentence of ten years for Thompson’s conduct. United States v. Thompson, supra, 237 F.3d 1261. This, the court held, "was frustrated by a supervening event (the failure of the Oklahoma prosecutors to charge Mr. Thompson within the statute of limitations), the nonoccurrence of which was a basic assumption of the plea agreement." Id. The federal government could not be faulted for the failure of the Oklahoma prosecutors to timely charge Thompson. Id. Thus, "[b]ecause the government did not receive the benefit of its bargain ... the plea agreement’s purpose was frustrated and its terms not binding on the government." United States v. Thompson, supra, 1263.
In United States v. Jureidini, 846 F.2d 964 (4th Cir. 1988), the Fourth Circuit was confronted with a plea agreement whereby the government agreed that, for purposes of parole consideration, the total amount of cocaine distributed by Jureidini was less than five kilograms. Id., 965. The expectation was that, because of this agreement, Jureidini would be classified by the parole board as having committed a category six offense, which, under their rules, would make him eligible for parole after serving forty to fifty-two months of his sentence. Id. If the amount of cocaine exceeded fifteen kilograms, the offense would be classified as a category eight, and Jureidini would have to serve one hundred or more months before being eligible for parole. Id. However, a presentence report prepared by the probation office listed the quantity of cocaine as twenty-eight and a half kilograms. Id. Relying on this, the parole board placed Jureidini in category eight. Id. The court held that the parole board placing Jureidini in category eight frustrated the expectation of the parties that he would parole eligible earlier. Id., 965-66. This called into question the validity of the plea and the court remanded to the district court for a determination of the appropriate remedy. Id., 966.
In United States v. Torres, 926 F.2d 321 (3d Cir. 1991), DEA agents conducted a warrantless search of an apartment and found 198 grams of cocaine. Id., 322. "Within seconds after their entry into the apartment, an automobile in which the defendant was a passenger, arrived on the scene. Some of the agents left the apartment, went to the car and arrested the occupants. A brick of cocaine weighing approximately one kilogram was found in the automobile." Id. The parties stipulated that the calculation of Torres’ sentencing range was to be based on the 198 grams, not the kilogram. Id. At sentencing, the trial court announced its intention to rely on the kilogram in determining the appropriate sentence. Id. Torres sought to withdraw his plea, which the court denied. Id. On appeal, the Third Circuit held that Torres should have been permitted to withdraw his plea, relying on the doctrine of frustration of purpose. Id., 327. The court held that in this case "a legal issue unforeseen by the prosecution, defense and apparently the court itself, frustrated an agreement clearly contemplated by all concerned." Id. The sentence "reflected an unexpected change in a critical factor that for all intents and purposes had been settled during the plea colloquy." Id.
In United States v. Kemper, 908 F.2d 33 (6th Cir. 1990), the parties stipulated that the drug quantity was 99 grams of cocaine, and the government agreed that the sentence would be at the low end of the guidelines. Id., 34. The presentence report, however, stated that the quantity was in fact 102.09 grams and the applicable guideline range was increased to one for an offense involving 100 grams or more. Id., 35. The Sixth Circuit construed the plea bargain as coming within Federal Rule of Criminal Procedure 11(e)(I)(C) (an agreement for a specific sentence). Id., 35-36. Although the court decided that the sentencing court properly rejected the agreement based on the erroneous stipulation as to quantity, at that point the defendant should have been given the opportunity to withdraw his plea. Id., 37.
In State v. Boley, 279 Kan. 989, 113 P.3d 248 (2005), the defendant’s case was remanded to the trial court for resentencing in light of another decision of the Kansas Supreme Court which lowered his maximum exposure. Id., 251. As part of that remand order, the Court of Appeals of Kansas also concluded that because the resentencing would frustrate the state’s purpose for entering in to the agreement, it could seek to withdraw from the agreement and reinstate charges that were dismissed as part of the agreement. Id. Boley appealed to the Kansas Supreme Court. Id. Applying the frustration of purpose doctrine, that court concluded that the purpose of the state was not substantially frustrated because it received a conviction without having to put on a trial and the defendant served time in prison. Id., 254. Additionally, in Kansas, sentencing courts are not bound by an agreement between the parties as to the sentence, therefore "the length of the sentence cannot be considered to be so completely the basis of the contract that without it the transaction would make little sense." (Internal quotation marks omitted.) Id. In Kansas, the parties assume the risk that the sentencing court will impose a sentence different than that recommended by the parties. Id. Finally, the court concluded that because the legal challenge that resulted in Boley’s remand for resentencing was "percolating in the Court of Appeals" at the time of his plea, the risk that Boley could only be sentenced to a lesser penalty "was foreseeable and, admittedly, foreseen." Id., 255.
D. INVOLUNTARINESS OF THE PLEA
At this juncture, a brief discussion of whether the petitioner’s plea was involuntary is warranted. The respondent relies on the argument that a subsequent change in the law does not render a defendant’s plea involuntary, citing to Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). In Brady, the defendant was death eligible and he entered into a plea agreement to avoid that punishment. Id., 743. Subsequently, in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), the United States Supreme Court held that the statute under which Brady had been charged was unconstitutional in part, because it made the death penalty a possible punishment only upon the exercise of the right to a jury trial. Id., 745-46. The statute in question, 18 U.S.C. § 1201(a), provided for the death penalty only upon a jury recommendation. Id., 746. The death penalty was not provided for if a defendant pled guilty or waived his right to a jury trial and elected to be tried by the court. Id. The court held that the "defendant’s assertion of the right to jury trial may cost him his life, for the federal statute authorizes the jury— and only the jury— to return a verdict of death." United States v. Jackson, supra, 390 U.S. 572. The Jackson court held that part of the statute to be unconstitutional because it created a disincentive to exercise a basic constitutional right. Id., 582. Brady sought post-conviction relief on the ground that his plea was not voluntary for that very reason— the statute disincentivized electing a jury trial and thus, he was forced into a guilty plea. Brady v. United States, supra, 397 U.S. 744. The Brady court rejected this contention in an opinion by Justice White who, incidentally, had dissented from the opinion in Jackson . The Court held that nothing in Jackson stood for the proposition that all "pleas of guilty encouraged by the fear of a possible death sentence are involuntary pleas." Id., 747. The Court concluded that "[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 State’s case or the likely penalties attached to alternative courses of action. More particularly, 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 premise." (Internal citations omitted.) Id., 757.
Respondent also cites to Dingle v. Stevenson, 840 F.3d 171 (4th Cir. 2016), in which Dingle sought to withdraw his guilty plea based on Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). He argued that Roper should be applied retroactively to him and because he was a juvenile at the time of his offense, he should not have been exposed to the death penalty. Id., 173. This rendered his original plea involuntary. Id. The court rejected his contention, holding that "when a defendant pleads guilty based on the strength of the state’s case and an assessment of the range of penalties to which he might otherwise be exposed, we have been especially reluctant to rescind the bargain." Id., 174. It concluded that "a classic guilty plea permits a defendant to gain a present benefit in return for the risk that he may have to forego future favorable legal developments." Id., 175. Even though Roper, "in hindsight, altered the calculus underlying Dingle’s decision to accept a plea agreement, it [did] not undermine the voluntariness of his plea." Id.
Respondent’s arguments and reliance on this line of cases has much appeal. Clearly, an argument that the petitioner’s plea was not voluntarily made would have to fail in light of Brady and its progeny. However, despite respondent’s desire to conflate the two claims, they are separate and must be analyzed appropriately. Petitioner does not claim that his plea was involuntary and even if he did, this court would not find that to be true. He instead claims that his validly entered plea should nonetheless be rescinded because an unforeseen legislative act has rendered the contract that he entered into useless to him. This argument was not raised in Brady or Dingle . While the reasoning of those cases does guide this court in its analysis of the foreseeability and assumption of risk prongs of the frustration of purpose test, they are not dispositive of the issue. Notably, Dingle does not cite to any of the frustration of purpose cases, including Jureidini, which is from the same court. While the United States Supreme Court has not explicitly ruled on the applicability of the frustration of purpose doctrine in criminal cases, it has had ample opportunity to do so.
This court finds that the frustration of purpose doctrine is recognized in Connecticut as a doctrine of contract law and that it applies to the contract principles underlying plea bargaining. Thus, this court will now apply the relevant factors to the facts of this case.
E. ANALYSIS OF THE FACTORS
Applying the factors as discussed above leads to the conclusion that in order to prevail in this particular case, the petitioner must prove that:
1) Avoidance of the death penalty was the primary purpose for entering his plea of guilty;
2) The repeal has substantially frustrated the purpose of entering into the plea, that is, it has rendered the state’s continued performance— abiding by the plea agreement— virtually worthless to him;
3) The repeal of the death penalty was not contemplated by the parties;
4) He is not the cause of the repeal. The court will now analyze each of these factors in turn.
I. Primary Purpose/Substantial Frustration
The first step in applying the doctrine is to determine whether the frustrated purpose was "so completely the basis of the contract that ... without it the transaction would make little sense." 2 Restatement (Second), Contracts, § 265, comment a (1981); State v. Boley, supra, 113 P.3d 253-54. When parties enter into a contract, each has a purpose for entering into that contract. In criminal cases, the state and the defense have purposes that they share in common and those that are disparate. For instance, the state might want to enter into a plea bargain to secure a conviction and avoid the risk of a not guilty verdict. The state might want to ensure the certainty that the defendant will serve some jail time. The state might further want to avoid the risk of having the conviction reversed on appeal after trial based on an erroneous pretrial ruling. The state might also want to spare victims and their families the ordeal of a criminal trial. On the other hand, the defendant might want to avoid a jury verdict of guilty and a significantly longer sentence after trial. The defendant might also want to spare the victim, the victim’s family and his own family the ordeal of a trial. "These purposes form the basis of the agreement, absent which neither party would consent to be bound." United States v. Bunner, supra, 134 F.3d 1004. However, there may arise an occasion where a reasonably unforeseeable event intervenes, which destroys the basis of the contract and creates a "situation where performance by one party will no longer give the receiving party what induced him to enter into the contract in the first place." Id. When this occurs, the aggrieved party is discharged from performing under the doctrine of frustration of purpose. 6 A. Corbin, Contracts, § 1353 (1962).
Thus, the purpose that is frustrated must have been a "principal purpose of that party in making the contract." 2 Restatement (Second), supra, § 265, comment (a). The frustrated purpose must have been "so completely the basis of the contract that, as both parties understand, without it the transaction would make little sense." (Internal quotation marks omitted.) United States v. Bunner, supra, 134 F.3d 1004. Second, the frustration must be substantial. It is not enough that the transaction has become less profitable for the affected party or even that he will sustain a loss. 2 Restatement (Second), supra, § 265, comment (a).
Here, the petitioner posits that his principal or primary purpose in pleading guilty was to avoid the death penalty and that purpose was substantially frustrated by the repeal of the death penalty. It is clear that both of the petitioner’s lawyers were very concerned about his exposure to the death penalty, given the lack of any mitigation. Avoiding death was certainly their primary purpose in convincing the petitioner to enter his plea of guilty. One of the petitioner’s purposes for pleading can also be fairly said to be avoiding the death penalty. Had the death penalty been abolished at the time of his plea, he would have gone to trial. However, he also testified that had he known he was going to serve "day for day," he would have rejected the offer. He further testified that he did not commit the sexual assault and would only plead guilty if that charge was off the table. Thus, the defendant’s purposes for entering into this plea were to avoid the death penalty and to avoid a conviction on a sexual assault charge.
As referenced in footnote 2, supra, there is clear evidence that at least at the time of the plea canvass and the sentencing, the petitioner was put on notice that he would have to serve every single day of his sixty-year sentence. Whether he understood that prior to entering the plea is a question this court need not resolve.
While it is a very close question, this court cannot conclude that the petitioner has proven that the "primary purpose" of his entering into the plea agreement was "substantially frustrated." The performance of the agreement— sixty years to serve for the crime of murder— is not "worthless" to him: he still avoids a sexual assault conviction and a potential sentence of up to 100 years. However, even if this court were to assume that his primary purpose was substantially frustrated, the petitioner cannot prevail.
2. Whether Repeal Was Contemplated by the Parties
Under the doctrine of frustration of purpose, "the event upon which the obligor relies to excuse his performance cannot be an event that the parties foresaw at the time of the contract." O’Hara v. State, supra, 218 Conn. 638.
For instance, in State v. Boley, supra, 113 P.3d 255, at the time Boley entered into his plea agreement, appellate courts in Kansas were already considering whether his maximum exposure should be lower than it was. At oral argument in Boley, the prosecutor admitted considering these cases when entering into the plea agreement. Id. The risk that Boley could only be sentenced to the lesser penalty was "foreseeable and, admittedly, foreseen." Id. At issue in O’Hara v. State, supra, 218 Conn. 629-33, was a breach of contract wherein the defendant had agreed to convey to the plaintiff some parcels of land on the eastern side of a road, the specific contours of which would be determined by the outcome of the proposed relocation of that road. The state sought and received permission from the Superior Court to acquire a portion of that eastern property, which included the portion that should have been conveyed to the plaintiff. Id., 632-33. The plaintiff sought to have the defendant convey to them that portion of the road, but the defendant did not comply. Id., 633. Following the Superior Court’s decision, the defendant gave that portion of the land to the state. Id. The trial court concluded that the defendant’s failure to convey that portion of the land was a breach of contract. Id. The defendant appealed, claiming in relevant part, that the failure to perform should be excused because at the time the plaintiff made the request for the land to be conveyed, the relocation of the road had not occurred; and, the state decided to acquire a greater portion of the eastern property than the contracting parties had contemplated. Id., 636.
Our Supreme Court disagreed, holding that the agreement between the parties "expressly acknowledged the possibility that the relocation of the road might not occur within five years. Thus, the event upon which the defendant relies, the nonoccurrence of the relocation project, was foreseen by the parties at the time of the contract." O’Hara v. State, supra, 218 Conn. 638. The parties had agreed that if the relocation did not occur within five years, a specific portion of the eastern property must be conveyed. Id. This meant that the inability to ascertain the exact location of the new road "did not make performance impracticable." Id. The Court further concluded that the agreement between the parties "explicitly acknowledged the possibility that the plans for relocation could be altered." Id., 639. Therefore, "because the parties foresaw that the state might acquire a greater portion of the eastern property than originally proposed, the actual occurrence of this event did not excuse the defendant’s duty to perform." Id. See also Graham v. Kim, 111 Nev. 1039, 899 P.2d 1122 (1995) (destruction of business by fire was foreseeable risk since buyers obtained fire insurance).
Thus, the doctrine of frustration of purpose "does not apply where the risk of the event that has supervened to cause the alleged frustration was reasonably foreseeable and could and should have been anticipated by the parties and provision made for it in the agreement." 17A Am.Jur.2d, Contracts § 638.
Given the evidence presented at trial, this court concludes that the repeal of the death penalty was not "reasonably foreseeable" and could not have been anticipated by the parties. That the death penalty was ultimately repealed almost a decade after the incident underlying the petitioner’s conviction does not then mean that it was foreseeable at the time of the plea. At the time of the guilty plea, Connecticut was in the midst of proceeding toward the execution of Michael Ross. Notably, some five years later, then Governor M. Jodi Rell vetoed Public Acts 2009, No. 09-107, which prospectively abolished the death penalty. It was only in 2012 that the death penalty was abolished prospectively and it was in 2015 that abolition was given retroactive effect. It cannot be said that the parties could reasonably have believed that the death penalty would be abolished and included such a belief in their bargaining. If the parties reasonably believed that the death penalty would be abolished in the near future, the petitioner’s guilty plea to the charge of murder and sentence that is the maximum allowable by statute for that offense makes little sense. Instead, the continued existence of the death penalty was a factor that caused the petitioner to enter his plea. The comments by the state’s attorney during the petitioner’s plea indicate that the parties were bargaining away the death penalty and that the state was giving up its right to pursue that punishment.
3. Fault
The third prong requires a showing that the frustrating event was not caused by the petitioner. There is no dispute that the petitioner did not seek repeal of the death penalty.
4. Petitioner’s Assumption of Risk
Finally, the petitioner must show that he has not assumed a greater obligation than the law imposes. "It is settled that if the parties have contracted with reference [to the frustrating event] or have contemplated the risks arising from it, they may not invoke the doctrine of frustration to escape their obligations." (Citations omitted; internal quotation marks omitted.) Glenn R. Sewell Sheet Metal, Inc. v. Loverde, 70 Cal.2d 666, 676, 451 P.2d 721, 75 Cal.Rptr. 889 (1969). "[T]he question whether a risk was foreseeable is quite distinct from the question whether it was contemplated by the parties." Id., n.13. Parties may contemplate and expressly provide for risks that are not foreseeable, just as there may be risks that are so completely foreseeable that it would be difficult to believe that the parties did not foresee them. "Finally, the parties may have contemplated and expressly provided for a type of risk that in fact occurs, but the magnitude or duration of which is so great that it cannot fairly be said to have been either contemplated or foreseeable." Id. However, "[w]hen a risk has been contemplated and voluntarily assumed ... and the manner of its occurrence is not so extraordinary ... the parties will be held to the bargain they made." Id.
Thus, the question is whether or not the proper interpretation of the plea agreement shows that the petitioner assumed the risk of the repeal of the death penalty. "If it appears from the nature of the contract as well as from the surrounding circumstances that, although they were reasonably foreseeable, the [petitioner] did not assume the risk of the subsequent events"; (citations omitted; internal quotation marks omitted.) West Los Angeles Institute for Cancer Research v. Mayer, 366 F.2d 220, 225 (9th Cir. 1966); he must be discharged from his obligation to serve sixty years. "If it appears that the [petitioner] assumed the risk of unanticipated events, the occurrence of such events does not excuse performance." Id. Therefore, "foreseeability of the frustrating event is not alone enough to bar recission if it appears that the parties did not intend the promisor to assume the risk of its occurrence." Chicago, Milwaukee, St. Paul & Pacific Railroad Co. v. Chicago & North Western Transportation Co., 82 Wis.2d 514, 526, 263 N.W.2d 189, 195 (1978), quoting West Los Angeles Institute of Cancer Research v. Mayer, supra, 366 F.2d 225.
In Connecticut, in the context of plea agreements, our Supreme Court has repeatedly held that the state, as the party that wields disproportionate power "must memorialize any and all obligations for which it holds the defendant responsible, as well as all promises that it has made for the purpose of inducing the defendant to cooperate." (Internal quotation marks omitted.) State v. Obas, 320 Conn. 426, 443, 130 A.3d 252 (2016). Our courts require that the terms of any plea agreement be stated clearly and unambiguously, so that a defendant "knows what is expected of him and what he can expect in return." Id. This also permits the state to know that it can demand of the defendant and what it is required to provide in exchange for the plea. In other words, the state bears the burden for any ambiguities in plea agreements. The petitioner here relies on that principle in support of his argument that he did not assume the risk of the repeal of the death penalty because it was not an explicit part of the plea agreement. He is correct in that there is nothing specifically stated on the record that shows that the petitioner is aware that the death penalty may be repealed in the future and that he is giving up his right to challenge the application of that repeal to him forevermore.
However, it is a well-established principle of plea bargaining that to be valid, a plea "must be an intelligent act done with sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States, supra, 397 U.S. 748. As discussed above, the United States Supreme Court did not permit Brady to vacate his plea based on a subsequent decision. "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." Brady v. United States, supra, 756; see also Swarzak v. Warden, 167 Conn. 10, 22, 355 A.2d 49 (1974). "An otherwise valid plea is not involuntary because it was induced by a defendant’s desire to limit the possible maximum penalty ..." Consiglio v. Warden, 160 Conn. 151, 160, 276 A.2d 773 (1970). Defendants and defense counsel routinely make judgments "that in the light of later events seem improvident, although they were perfectly sensible at the time." Brady v. United States, supra, 756-57. A defendant’s guilty plea is not rendered unknowing and involuntary simply because he subsequently discovers that "his calculus misapprehended the ... likely penalties attached to alternative courses of action." Id. The plea is not subject to collateral attack when the defendant was correctly advised of the penalties at the time of the plea, but later events hold that "the maximum penalty for the crime in question was less than was reasonably assumed at the time the plea was entered." Id.; see also State v. Reid, 277 Conn. 764, 788-89, 894 A.2d 963 (2006). A possibility of a favorable change in the law after the plea is one of the ordinary risks of pleading guilty. United States v. Roque, 421 F.3d 118, 122 (2d Cir. 2005), cert. denied sub nom., Delahoz v. United States, 546 U.S. 1120, 126 S.Ct. 1094, 163 L.Ed.2d 908 (2006); United States v. Sahlin, 399 F.3d 27, 31 (1st Cir. 2005). "Contracts in general are a bet on the future." Dingle v. Stevenson, supra, 840 F.3d 175. As a contract, a plea bargain is no different. Every plea bargain requires both parties to assume a risk: both parties forgo the possibility that their favored outcome would have come to pass had they proceeded to trial. Both parties also protect themselves against the risk that the outcome would have been unfavorable. Defendants routinely enter into guilty pleas and leave viable legal claims on the table. This court cannot say that the repeal of the death penalty was an occurrence so extraordinary; Glenn R. Sewell Sheet Metal, Inc. v. Loverde, supra, 70 Cal.2d 666; that the petitioner’s performance must be excused. That the repeal was not reasonably foreseeable does not preclude the conclusion that the petitioner assumed the risk that the law would someday change in a way that would make his decision to plead guilty "seem improvident, although ... perfectly sensible at the time." Brady v. United States, supra, 756-57. This court cannot conclude that the petitioner did not assume the risk that someday the death penalty might be abolished.
IV. CONCLUSION
It is obvious why the petitioner has filed this amended petition and seeks to have his plea withdrawn. At the time of his plea, the specter of the ultimate punishment— death— loomed large over his head. No longer faced with being forced to choose between two equally undesirable outcomes, he wishes to re-negotiate his circumstances. That the petitioner would seek this outcome is logical and understandable. However, in order to gain the outcome he wants, he has to prove that his principal purpose for agreeing to a sentence of sixty years to serve has been "substantially frustrated" and that he did not assume the risk that repeal would occur without any benefit to him. This court cannot conclude that he has proven this. Even without the death penalty, he faced 100 years incarceration and a conviction for sexual assault. His plea avoided both those outcomes as well. His purpose has not been "substantially frustrated." Additionally, a plea of guilty necessarily encompasses an assumption of the risk that the law may subsequently change in a defendant’s favor. Therefore, the petition is denied.