Moye v. Warden

Full title: Marcus Moye v. Warden

Court: Superior Court of Connecticut

Date published: Oct 23, 2019

CV154007160S (Conn. Super. Ct. Oct. 23, 2019)

Opinion

CV154007160S

10-23-2019

Marcus Moye v. Warden

Bhatt, J.

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh):Bhatt, Tejas, J.

MEMORANDUM OF DECISION

Bhatt, J.

The petitioner, Marcus Moye, was convicted by a jury of possessing a pistol without a permit and sentenced to five years’ imprisonment. He alleges that he was previously charged with possessing that same weapon on that same day at or about the same time, a charge that was ultimately disposed of without resulting in a conviction via a negotiated plea bargain, and thus his present conviction violates the prohibition against double jeopardy. As explained below, the court agrees that the petitioner’s conviction for possession of a pistol without a permit is constitutionally barred and therefore, the petition is GRANTED in part.

I. FACTUAL BACKGROUND

On August 11, 2003, the petitioner was charged by way of information in Docket Number N23N-CR-03-0021331 with criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c, risk of injury to a minor in violation of General Statutes § 53-21, assault in the second degree in violation of General Statutes § 53a-60, reckless endangerment in the first degree in violation of General Statutes § 53a-63, criminal attempt to commit robbery in violation of General Statutes § § 53a-134 and 53a-49, criminal attempt to commit larceny in the second degree in violation of General Statutes § § 53a-123 and 53a-49, carrying a pistol without a permit in violation of General Statutes § 29-35 and criminal use of a firearm in violation of General Statutes § 53a-217, for an offense that occurred on August 3, 2003 (Gore case). He also faced charges in two other docket numbers- N23N-CR-03-0019508 and N06N-CR-01-0504487- that are not relevant to these proceedings. On March 3, 2004, the petitioner, assisted by counsel Attorney Joseph Lopez, entered a plea pursuant to the Alford [¹] doctrine, to a substitute information in the Gore case, which charged only one count of risk of injury.2] In Docket Number ending 4487, the petitioner admitted violating his probation. The agreed-upon disposition was a sentence of two years and one day to serve for the risk of injury. The probation in Docket Number ending 4487 was to be terminated. The state announced its intention to nolle the open counts and Docket Number N23N-CR-03-0019508 in which the petitioner was charged with drug offenses. A presentence investigation report (PSI) was waived by both parties and the petitioner was sentenced on that same day by the court, Devlin, J., in accordance with the agreement.

1 North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

On December 9, 2005, the petitioner was arrested and charged with murder in violation of General Statutes § 53a-54a, criminal use of a firearm in violation of General Statutes § 53a-216, criminal possession of a firearm by a felon in violation of General Statutes § 53a-217 and pistol without a permit in violation of General Statutes § 29-35 in Docket Number NNH-CR-05-0049815 for an incident that also occurred on August 3, 2003 (Brown case). On October 20, 2006, the prosecutor filed the operative two-count substitute information, charging murder and carrying a pistol without a permit. The petitioner elected to be tried by a jury and was ultimately convicted of both counts on November 20, 2006. On February 8, 2007, the trial court, Thompson, J., imposed a sentence of forty-five years’ incarceration on the first count and five years’ incarceration on the second count, to run consecutively, for a total effective sentence of fifty years’ incarceration. He appealed his convictions, which were affirmed by our Appellate Court. State v. Moye, 112 Conn.App. 605, 963 A.2d 690, cert. denied, 291 Conn. 906, 967 A.2d 1221 (2009). He initiated a petition for writ of habeas corpus in 2009, and counsel filed an amended petition on March 18, 2011. In that petition, he alleged ineffective assistance of trial counsel for failing to investigate an alibi defense, call defense witnesses and properly represent him during plea discussions. The petition was denied by the court, Santos, J. On appeal, the petitioner claimed for the first time that his conviction for carrying a pistol without a permit violated double jeopardy and that trial and appellate counsel were ineffective for not raising that issue. Our Appellate Court found the issue to be unpreserved and declined to address it, Moye v. Commissioner of Correction, 147 Conn.App. 325, 81 A.3d 1222 (2013), and our Supreme Court affirmed that conclusion. Moye v. Commissioner of Correction, 316 Conn. 779, 114 A.3d 925 (2015).

The petitioner initiated the present action on April 23, 2015. Counsel filed an amended petition on June 14, 2018, alleging two counts: ineffective assistance of trial counsel, Attorney Lawrence Hopkins and ineffective assistance of prior habeas counsel, Attorney Laljeebhai Patel. The crux of his allegation against both is the same: that his conviction for carrying a pistol without a permit violates double jeopardy and neither counsel pursued that legal defense either in the trial court or in the habeas court. The respondent filed a return denying the allegations and subsequently amended its return to allege the special defense that the claim of ineffective assistance of trial counsel should not be reviewed on the merits because the present petition is a "successive petition." The petitioner filed a motion seeking summary judgment in his favor on September 10, 2018, which was denied by the habeas corpus court, Newson, J. A trial followed, at which the petitioner presented the testimony of Attorneys Hopkins and Patel. The parties submitted exhibits and filed posttrial briefs. The parties appeared before the court for additional argument on October 9, 2019.

II. FINDINGS OF FACT

A. THE GORE CASE

On August 3, 2003, between 7 p.m. and 8 p.m., Marvin Gore was robbed at gunpoint in front of 240 Winthrop Avenue in New Haven, CT. The suspect was riding a green mountain bike. Gore described the suspect as having a heavy build, short, wearing a black Seattle Sonics shirt which had the number six in white lettering on it. The suspect, who was later identified as the petitioner, reached into his own pocket and removed a revolver. The petitioner then asked Gore to remove everything from his pockets. Gore said he did not have anything, at which point the petitioner hit Gore in the head with the revolver, causing Gore to fall down. Gore ran away from the scene. In discussing the incident with his friends the next day, Gore was informed that "Fat Mark" from the Newhallville Crips was responsible for the attempted robbery. Gore knew the petitioner to be known as Fat Mark. Gore reported the incident to police a week later. During his interview with police, Gore identified the petitioner from a photo array.

The petitioner entered an Alford plea to a substituted information charging one count of risk of injury to a minor in relation to the attempted robbery of Gore. In support of the plea the prosecutor stated the following factual basis:

On August 8th of 2003, ³ the 14-year-old victim was walking in the City of New Haven when he was approached by the defendant who was riding a green mountain bike. The defendant ordered him to come over to him, asked him if he belonged to quote, unquote, the Tre, which is a gang in the City of New Haven. When the victim answered no, that he did not belong to the Tre, the defendant pulled out a gun, stuck it in the victim’s side and said you must be from the Tre, you’re wearing a red shirt. The defendant then ordered the victim to give him everything in his pocket, when nothing was forthcoming the defendant hit him on the side of the head knocking him to the ground. The victim recovered and ran.

The victim waited a week to tell anyone because he was scared. The defendant was identified by way of a photo board.

3 The substitute information and the state’s recitation of facts list the date of offense as August 8, 2003. Neither party in this case has addressed this discrepancy in the date. It is apparent to the court that the August 8, 2003 date is in error and the Gore case resulted from an incident that occurred on August 3, 2003, as evidenced by the information filed on August 11, 2003, and information contained in the arrest warrant affidavit of the Brown case. The date of the Gore incident is not disputed by either party, nor does the respondent’s defense to the allegation of double jeopardy rest on the argument that the two incidents occurred on different days.

Defense counsel then clarified that the plea was to subsection one of the risk of injury statute and that it was in accordance with his understanding of the plea agreement. During his canvass, Judge Devlin asked whether the petitioner understood that if he accepted the plea bargain, the petitioner would be sentenced "in accordance with this plea bargain that’s been worked out." The court then stated that the agreement calls for "a recommended sentence of two years and one day to be imposed on the file where the risk of injury charged has been substituted ..." The prosecutor subsequently stated that the victim and his mother were aware of this negotiated disposition and were in favor of it in order to spare the victim from testifying. After imposing sentence, the court once more asked the parties if the sentences as imposed reflected the agreement of the parties. Both the prosecutor and defense counsel said yes.

B. THE BROWN CASE

On or about 8 p.m. on August 3, 2003, Joshua Brown was fatally shot in the area of George and Day Streets in New Haven. An officer responding to the scene observed a heavyset black male, wearing a white jersey, on a BMX bicycle, riding away from the scene. While at the scene, the officer questioned Kathy Booker, who informed him that at 8 p.m. she heard a gunshot and saw a heavyset black male, clean shaven, wearing a white jersey with possibly the number six on it, riding a bicycle away from the scene of the shooting. The officer provided Booker’s description to the police dispatcher. Another officer heard the description via the dispatch and observed a man on a bike matching that description. He chased the biker but lost him and eventually found the suspect thirty minutes later, wearing different clothes. That suspect was identified to be the petitioner. Several other witnesses testified, tying the petitioner to the shooting. Courtney Taft testified that the petitioner confessed to her that he had shot the victim a few hours after the incident. Timothy Phelmetta also testified that on the evening of August 3, 2003, he heard a gunshot and saw a heavyset male wearing a jersey that may have been white, riding away from the scene on a bike. Marvin Gore also testified and his statement to the police was admitted as substantive evidence pursuant to the rule of State v. Whelan, 200 Conn. 743, 513 A.2d 86 (1986).

In closing argument, both the state and the defense argued that the state introduced the testimony and statement of Gore to prove that the petitioner was in the area of the murder, at the time of the murder and was armed with a weapon at that time. Thus, it is clear that the state’s theory involved the presence of the petitioner at the scene a short time before the murder, armed with a weapon and that the two incidents were temporally and geographically adjacent. The state argued:

One thing that you could certainly remember, every single person described the bike essentially the same way, mountain bike, grey, green, including the two officers, mountain bike, grey, green, you might call it blue, but is that a reasonable description of this mountain bike, greyish green? Certainly, greyish, it may be more greyish blue, some people may think it’s more greyish green. Whether or not that’s the actual bike, how many people were riding out there who were heavyset black males riding a greyish green bike in this 14 to 20 minute period?

(Emphasis added.) Tr. 11/20/06 p. 72. In reference to Gore’s testimony, the state argued the following:

You know the statement was on the 10th and the crime was on the 3rd. And the purpose of this is only to tell you that Marcus Moye was in the area and then- and that he had a gun and a bike. It’s all the rest of this that proves that he did this shooting. That robbery is otherwise irrelevant, and the Judge is going to tell you you can’t consider any conclusion that he committed a robbery from Marvin Gore as being a propensity to commit crimes or being usable that if he committed the robbery, he committed the murder, that’s clearly not true, you can’t conclude anything about that robbery other than, does it go to the identity?

Id., 78-79. In other words, the state argued that the Gore robbery proved that it was the defendant who was the individual with the gun and the bike in the same location a short time later. In its instructions to the jury, the trial court stated the following:

Now, the State offered evidence through Marvin Gore that the defendant attempted to rob him on Winthrop Avenue in New Haven sometime between the hours of seven p.m. and eight p.m. on August 3rd, 2003. Said evidence was admitted solely to establish that the defendant might have been in the area of the homicide on August 3rd of 2003 and that he was in possession of a bicycle and a gun at that time. The evidence offered by the State of this prior act of misconduct by the defendant was not admitted to prove the bad character of the defendant or his propensity to commit criminal acts.

This evidence was admitted solely to establish the identity of the person who committed the crime and the defendant’s possession of the means that might have been useful or necessary for the commission of the crimes charged. You may consider such evidence, if you believe it, and further that it logically, rationally, and conclusively supports the issues for which it is being offered by the State, but only as it bears on the issues of the existence of the identity of the person who committed the crime and the defendant’s knowledge or possession of the means that might have been useful or necessary for the commission of the crimes charged.

On the other hand, if you do not believe such evidence, or even if you do, if you find that it does not logically, rationally, and conclusively support the issues for which it is being offered by the State, namely the identity of the person who committed the crime, and the defendant’s knowledge or possession of the means that might have been useful or necessary for the commission of the crimes charged, then you may not consider that testimony for any purpose.

Id., 99-100. Although the petitioner in this case did not present any evidence of the geographic proximity between the location of the Gore case and the location of the Brown case, transcripts of the underlying criminal trial reveal that there was testimony through an Officer Sacco that the intersection of Winthrop Avenue, George Street and Gilbert Street is approximately four blocks from the murder scene. Further, Marvin Gore testified that he was in the vicinity of Winthrop Avenue and George Street when the petitioner attempted to rob him.

C. REPRESENTATION BY TRIAL COUNSEL

In the trial court, the petitioner was represented by Attorney Lawrence Hopkins. He was aware that the petitioner had previously been charged with several offenses including weapons offenses in the Gore case, but believed that the state had simply chosen not to pursue those charges in light of the far more serious pending murder charge. He had in his possession the criminal information docket sheets in the Gore case, but did not think to investigate further to determine whether the Gore case had been resolved. Had he realized that it had been resolved, he would have filed a motion alerting the trial court to this and would have objected to the petitioner’s sentencing on the count of carrying a pistol without a permit.

D. REPRESENTATION BY FIRST HABEAS COUNSEL

In his prior habeas corpus petition, the petitioner was represented by Attorney Laljeebhai Patel. Attorney Patel did not identify the double jeopardy claim raised in the instant petition because the petitioner told him that he was not present at the scene of the crime. Thus, Attorney Patel focused solely on establishing the petitioner’s alibi and trial counsel’s failure to pursue an alibi. He did not investigate any other claim because, in his opinion, there was nothing to investigate besides the alibi once his client told him that he was not present at the scene of the crime. He had "zero" concerns about the petitioner’s firearm conviction. Additional facts will be set forth as necessary.

III. RESPONDENT’S DEFENSE

The respondent alleges that count one should be dismissed because it is successive. The petitioner has previously raised a claim of ineffective assistance of trial counsel and received a full evidentiary hearing on the merits of that claim. "Our courts have repeatedly applied the doctrine of res judicata to claims duplicated in successive habeas petitions filed by the same petitioner ... In fact, the ability to dismiss a petition [if] it presents the same ground as a prior petition previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition is memorialized in Practice Book § 23-29(3)." (Citation omitted; internal quotation marks omitted.) Lebron v. Commissioner of Correction, 178 Conn.App. 299, 317, 175 A.3d 46 (2017), cert. denied, 328 Conn. 913, 179 A.3d 779 (2018).

Practice Book § 23-29 provides in relevant part: "The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that ... (3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition ..." Our Supreme Court has explained that a "ground is a sufficient legal basis for granting the relief sought ... Identical grounds may be proven by different factual allegations, supported by different legal arguments or articulated in different language ... They raise, however, the same generic legal basis for the same relief. Put differently, two grounds are not identical if they seek different relief." (Citation omitted; internal quotation marks omitted.) Lebron v. Commissioner of Correction, supra, 178 Conn.App. 317-18. It is well established that "[a] claim of ineffective assistance of counsel during trial proceedings constitutes the same ground for purposes of § 23-29(3), despite changes in the precise underlying specifications of deficient performance, unless such new specifications are based on facts or evidence not reasonably available when the ground was raised in the earlier petition." (Internal quotation marks omitted.) Id., 318. Count one here alleges ineffective assistance of trial counsel and the petitioner does not argue that there are new facts that were not reasonably available when the prior petition was decided by the habeas court. Thus, count one must be dismissed.

IV. LEGAL ANALYSIS

A. INEFFECTIVE ASSISTANCE OF COUNSEL

It is well established that a criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. Horn v. Commissioner of Correction, 321 Conn. 767, 138 A.3d 908 (2016). Thus, because "[a]n accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair" (internal quotation marks omitted); Kimmelman v. Morrison, 477 U.S. 365, 377, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, 686.

I. Two-Part Test

To determine whether a defendant is entitled to a new trial due to a breakdown in the adversarial process caused by counsel’s inadequate representation at trial, courts apply the familiar two-part test adopted by the United States Supreme Court in Strickland. Skakel v. Commissioner of Correction, 329 Conn. 1, 30, 188 A.3d 1 (2018). A petitioner’s claim that trial counsel’s assistance was so defective as to require reversal of a conviction has two components. "First, the defendant must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the sixth amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires a showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." (Citation omitted; internal quotation marks omitted.) Skakel v. Commissioner of Correction, supra, 30. Without a showing as to both components, it cannot be said that the conviction resulted from a breakdown in the adversary process, rendering the result unreliable. Strickland v. Washington, supra, 466 U.S. 687. However, "a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed." Strickland v. Washington, supra, 697; see also State v. Brown, 279 Conn. 493, 525-26, 903 A.2d 169 (2006); Aillon v. Meachum, 211 Conn. 352, 362, 559 A.2d 206 (1989).

2. Performance Prong

The sixth amendment "does not guarantee perfect representation, only a reasonably competent attorney ... Representation is constitutionally ineffective only if it so undermined the proper functioning of the adversarial process that the defendant was denied a fair trial." (Internal quotation marks omitted.) Skakel v. Commissioner of Correction, supra, 329 Conn. 30-31, quoting Harrington v. Richter, 562 U.S. 86, 110, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). With respect to the first part of the Strickland test, "the proper standard for attorney performance is that of reasonably effective assistance." Strickland v. Washington, supra, 466 U.S. 687. "Consequently, to establish deficient performance, the petitioner must show that, considering all of the circumstances, counsel’s representation fell below an objective standard of reasonableness as measured by prevailing professional norms." Skakel v. Commissioner of Correction, supra, 31. "Moreover, strategic decisions of counsel, although not entirely immune from review, are entitled to substantial deference by the court." Id.

3. Prejudice Prong

When defense counsel’s performance is found to not be reasonable, a new trial is required only if there exists "a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, supra, 466 U.S. 694. "The question, therefore, is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Internal quotation marks omitted.) Skakel v. Commissioner of Correction, supra, 329 Conn. 38, quoting Strickland v. Washington, supra, 694-95.

However, "a [petitioner] need not show that counsel’s deficient conduct more likely than not altered the outcome of the case ... because the result of a criminal proceeding can be rendered unreliable, and thus the proceeding itself unfair, even if errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." (Citation omitted; internal quotation marks omitted.) Skakel v. Commissioner of Correction, supra, 329 Conn. 38, quoting Strickland v. Washington, supra, 693-94. The petitioner must establish, instead, that the deficient performance gives rise to a loss of confidence in the verdict. Id. The habeas court’s inquiry must focus on the fundamental fairness of the proceeding and the court must be "concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results." Strickland v. Washington, supra, 696.

4. Ineffective Assistance of Habeas Counsel

Habeas petitioners can challenge the effectiveness of the performance of their prior habeas counsel. Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992); Kaddah v. Commissioner of Correction, 324 Conn. 548, 153 A.3d 1233 (2017). "In Lozada, the court determined that the statutory right to habeas counsel for indigent petitioners provided in General Statutes § 51-296(a) includes an implied requirement that such counsel be effective, and it held that the appropriate vehicle to challenge the effectiveness of habeas counsel is through a habeas petition." (Citation omitted; internal quotation marks omitted.) Brewer v. Commissioner of Correction, 189 Conn.App. 556, 561, 208 A.3d 314, cert. denied, 332 Conn. 903, 208 A.3d 659 (2019). A petitioner alleging ineffective assistance of habeas counsel must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective. Lozada v. Warden, supra, 842. As to each of those inquiries, the petitioner is required to satisfy the test set forth in Strickland v. Washington. "In other words, a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of trial counsel must essentially satisfy Strickland twice." (Citation omitted; internal quotation marks omitted.) Brewer v. Commissioner of Correction, supra, 561. Thus, in order to obtain relief, the petitioner must prove that prior habeas counsel’s performance was deficient and further establish that if he had received effective representation by habeas counsel, there is a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial. Harris v. Commissioner of Correction, 108 Conn.App. 201, 210, 947 A.2d 435, cert. denied, 288 Conn. 911, 953 A.2d 652 (2008). Therefore "in order to set forth a prima facie case of ineffective assistance of the petitioner’s first habeas counsel on the ground of ineffective assistance of trial counsel, the petitioner must set forth a prima facie case of ineffective assistance of trial counsel." Mukhtaar v. Commissioner of Correction, 158 Conn.App. 431, 439, 119 A.3d 607 (2015).

B. WHETHER THE SUBSEQUENT CONVICTION IS BARRED

1. Double Jeopardy

The double jeopardy clause of the fifth amendment to the United States constitution provides that no person shall be "subject for the same offense to be twice put in jeopardy of life or limb ..." The double jeopardy clause is applicable to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Although the Connecticut constitution has no specific double jeopardy provision, the due process guarantees of the state constitution include protection against double jeopardy. State v. Crawford, 257 Conn. 769, 778 A.2d 947 (2001), cert. denied, 534 U.S. 1138, 122 S.Ct. 1086, 151 L.Ed.2d 985 (2002); State v. Nixon, 231 Conn. 545, 550, 651 A.2d 1264 (1995); Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S.Ct. 298, 9 L.Ed.2d 235 (1962). Thus, principles of both double jeopardy and due process are implicated when determining whether a second prosecution is barred by the constitution.

"The double jeopardy clause provides several protections- it protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense." State v. Thomas, 296 Conn. 375, 383-84, 995 A.2d 65 (2010), citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). "The policy justifications for prohibiting successive prosecutions include: (1) furthering society’s interest in protecting the integrity of final judgments; and (2) protecting individuals from prosecutorial overreaching and the continued embarrassment, anxiety and expense associated with repeated attempts to convict." (Citations omitted.) Id., 384. "These protections stem from the underlying premise that a defendant should not be twice tried or punished for the same offense." (Internal quotation marks omitted.) State v. Alvarez, 257 Conn. 782, 788, 778 A.2d 938 (2001), citing United States v. Wilson, 420 U.S. 332, 339, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). "When a defendant has been once convicted and punished for a particular crime, principles of fairness and finality require that he not be subjected to the possibility of further punishment by being again tried or sentenced for the same offense." United States v. Wilson, supra, 343, citing Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1874); In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889). Further, when a defendant has been acquitted of an offense, the double jeopardy prohibition "guarantees that the State shall not be permitted to make repeated attempts to convict him ..." United States v. Wilson, supra, 343.

In Connecticut, courts apply a two-step process to determine whether a double jeopardy violation has occurred. "First, the charges must arise out of the same act or transaction." (Internal quotation marks omitted.) State v. Porter, 328 Conn. 648, 662, 182 A.3d 625 (2018); State v. Bernacki, 307 Conn. 1, 9, 52 A.3d 605 (2012). At step one, courts "look to the evidence at trial and to the state’s theory of the case ... in addition to the information against the defendant, as amplified by the bill of particulars." (Citations omitted; internal quotation marks omitted.) State v. Porter, supra, 662. Only if a court determines that the charges arise from the same act or transaction, does it proceed to step two, where the determination is to be made whether the "charged crimes are the same offense." (Citation omitted; internal quotation marks omitted.) Id. At this second step, courts apply the test of Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932): "[w]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Id. In applying the Blockburger test, courts "look only to the information and bill of particulars- as opposed to the evidence presented at trial- to determine what constitutes a lesser included offense of the offense charged." (Citation omitted; internal quotation marks omitted.) State v. Porter, supra, 662.

2. Attachment of Jeopardy

Double jeopardy prohibits a subsequent prosecution only if jeopardy has attached in a previous proceeding. Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975); State v. Thomas, supra, 296 Conn. 384. "[T]he conclusion that ‘jeopardy attaches’ when the trial commences expresses a judgment that the constitutional policies underpinning the [f]ifth [a]mendment’s guarantee are implicated at that point in the proceedings." United States v. Jorn, 400 U.S. 470, 480, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); State v. Thomas, supra, 384. In a jury trial, "jeopardy attaches when a jury is empaneled and sworn." Serfass v. United States, supra, 420 U.S. 388. In a trial before the court, "jeopardy attaches when the court begins to hear evidence." Id. However, the United States Supreme Court "has yet to decide when jeopardy attaches in a case disposed of by a guilty plea, although it has assumed that jeopardy attaches at least by the time of sentencing on the plea." State v. Thomas, supra, 296 Conn. 384-85, citing Ricketts v. Adamson, 483 U.S. 1, 8, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987). In deciding whether jeopardy attaches, courts must "consider the defendant’s double jeopardy claim in light of the twin aims of the double jeopardy clause- protecting a defendant’s finality interest and preventing prosecutorial overreaching." State v. Thomas, supra, 392-93. Applying that framework, our Supreme Court held in State v. Thomas, that since most guilty pleas in our state are conditional, "acceptance of a defendant’s guilty plea [does] not trigger double jeopardy protection unless the facts and circumstances surrounding the guilty plea implicate the policy considerations underlying the double jeopardy clause." State v. Thomas, supra, 392. Jeopardy attaches, of course, when judgment is entered.

Whether jeopardy attaches, however, when some charges are not prosecuted by way of a nolle prosequi or dismissal, is a more complicated question. Generally speaking, "a nolle is, except when limited by statute or rule of practice a unilateral act by a prosecutor, which ends the pending proceedings without an acquittal and without placing the defendant in jeopardy." (Citation omitted; footnote omitted; internal quotation marks omitted.) State v. Kallberg, 326 Conn. 1, 12-13, 160 A.3d 1034 (2017). "Although the entry of a nolle prosequi results in the defendant’s release from custody, he can ... be tried again upon a new information and a new arrest." (Citations omitted.) State v. Lloyd, 185 Conn. 199, 201, 440 A.2d 867 (1981); see Practice Book § 39-31. By operation of law, a matter is dismissed thirteen months after the entry of a nolle. See General Statutes § 54-142a. However, a nolle may be bargained for as part of a plea agreement. State v. Kallberg, supra, 13; see also Mason v. State, 302 Md. 434, 440, 488 A.2d 955 (1985) (nolle as part of plea agreement tantamount to dismissal of nolled charge); cf. Rush v. State, 749 So.2d 1024, 1027 (Miss. 1999) ("If a plea bargain allows a defendant facing multiple charges to plead to one charge in exchange for having the other charges dismissed or remanded, the remanded charges are barred from further prosecution"). So, when charges are disposed of without a guilty plea as part of a "bilateral agreement" between the state and the defense, the prosecution is barred from re-prosecuting those disposed of charges unless the defendant has breached the plea bargain. State v. Kallberg, supra, 14. Courts have analyzed such a scenario under both the double jeopardy clause and the due process clause. In State v. Comstock, 168 Wis.2d 915, 485 N.W.2d 354 (1992), the parties reached a plea agreement pursuant to which the state agreed to amend counts one and two to reduce them from felonies to misdemeanors and to dismiss counts three and four in exchange for guilty pleas. Between plea and sentencing, the trial judge received additional information which led him to vacate the two pleas and reinstate the four felony charges contained in the original information. Id., 934. On appeal, the defendant claimed that reinstatement of counts three and four, which were originally dismissed by the court as part of the plea agreement, violated double jeopardy. Id. The state countered that jeopardy never attached because the defendant never pled guilty to those charges; was not acquitted or convicted of them; nor was he punished for them. Id., 948. The court disagreed with the state, noting that the case involved a plea agreement in which the defendant entered pleas of guilty to two charges in exchange for the dismissal of two others. Id., 949-50.

The court further noted that the defendant complied with the plea agreement and that allowing the state to reinstate the dismissed charges "would amount to allowing the state to make repeated attempts to convict an individual for the same offense. Allowing the state to reinstate the two felony charges in contravention of a plea agreement with which the defendant has complied violates the principles of finality and fairness underlying the double jeopardy clause." State v. Comstock, supra, 168 Wis.2d 950. The court further noted that a "subsequent [re-prosecution] of a charge dismissed as a result of a plea bargain is barred by elementary due process." Id. See also Johnson v. State, 460 So.2d 954, 957 (Fla.Dist.Ct.App. 1984), approved, 483 So.2d 420 (Fla. 1986) (where defendant entered unconditional nolo contendere plea to three misdemeanors, one of which was a lesser included offense of a charged felony and the state agreed not to prosecute a fourth charge, double jeopardy prohibits the trial court’s setting aside the plea and the defendant’s trial on all four original charges).

This rationale finds support in cases where courts have held that re-prosecution on nolled or dismissed charges is permitted when the convictions are subsequently reversed or the plea bargain withdrawn. North Carolina v. Pearce, supra, 395 U.S., 720 (double jeopardy prohibition "imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside"); United States v. DiFrancesco, 449 U.S. 117, 131, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980); State v. Sebben, 145 Conn.App. 528, 545, 77 A.3d 811, cert. denied, 310 Conn. 958, 82 A.3d 627 (2013), cert. denied, 572 U.S. 1088, 134 S.Ct. 1950, 188 L.Ed.2d 962 (2014) (double jeopardy not violated by reinstatement of original charges when plea to substitute charges was withdrawn by defendant); Fransaw v. Lynaugh, 810 F.2d 518 (5th Cir. 1987) (no double jeopardy protection when state reinstated and tried him on count it had dismissed after commencement of trial as part of subsequently vitiated plea bargain because withdrawal of the plea led to surrender of the plea bargain’s refuge against prosecution on dismissed charge); United States v. Barker, 681 F.2d 589, 590 (9th Cir. 1982) (holding that double jeopardy would not prevent reinstatement of original indictment dismissed as part of a plea bargain later set aside by the district judge); United States v. Johnson, 537 F.2d 1170, 1174-75 (4th Cir. 1976 (holding that the double jeopardy clause would not prevent trial on counts dismissed as part of a plea bargain subsequently vacated on appeal); Klobuchir v. Pennsylvania, 639 F.2d 966, 970 (3d Cir.) (holding that double jeopardy would not prevent trial on first degree murder even though that count had been dismissed as part of a plea bargain later set aside by state trial judge), cert. denied, 454 U.S. 1031, 102 S.Ct. 566, 70 L.Ed.2d 474 (1981). Put another way, the state can only re-prosecute dismissed charges if the defendant withdraws from the agreement in some fashion. Thus, it follows that the state may not re-prosecute a defendant for dismissed charges in the absence of the plea agreement being set aside or vacated.

3. Due Process Considerations

Cases in which courts have applied due process considerations are also instructive as the prohibition against double jeopardy is made applicable to the states through the due process clause and, for purposes of state constitutional analysis, is embodied in the due process clauses of the state constitution. If a defendant has bargained for a nolle or dismissal of a charge in exchange for a plea of guilty to a different charge or provided some benefit to the state or the victim, then due process and contract principles require enforcement of that agreement. In determining whether the agreement bars re-prosecution, courts must interpret the terms of the agreement. In doing so, it is well settled that "[p]rinciples of contract law and special due process concerns for fairness govern our interpretation of plea agreements." (Citations omitted; internal quotation marks omitted.) State v. Rivers, 283 Conn. 713, 724, 931 A.2d 185 (2007).

In ascertaining the intent of the parties, courts "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 making of the agreement and the purposes they sought to accomplish." (Citations omitted.) 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." (Citation omitted; internal quotation marks omitted.) Id. When the language is ambiguous, however, the ambiguities are construed against the state. Id., 16; State v. Rivers, supra, 283 Conn. 725. "Our jurisprudence makes it clear that contracts may be formed by conduct that recognizes the existence of such an agreement, even when there are no words of mutual assent." (Citations omitted.) State v. Kallberg, 157 Conn.App. 720, 729, 118 A.3d 84 (2015), aff’d, 326 Conn. 1, 160 A.3d 1034 (2017).

For instance, in State v. Kallberg, the defendant was convicted of larceny in the third degree as an accessory in violation of General Statutes § § 53a-8 and 53a-124(a)(2) and conspiracy to commit larceny in the third degree in violation of General Statutes § § 53a-48 and 53a-124(a)(2) after the state had previously entered a nolle on those charges and three other dockets in which charges were pending against him. Id., 3. After the state initiated its second prosecution of him, he filed a motion to dismiss, which was denied by the trial court. The state argued that while it was a global disposition, three of the nolles were entered unilaterally by the prosecutor, while only the fourth was the result of an agreement. Id., 6-10. Our Supreme Court disagreed, instead holding that the agreement was ambiguous and must be construed against the state. Id., 12. The court held that "the defendant had a reasonable expectation that all the nolles were entered as a part of a global disposition"; id., 25; and because "the state breached the parties’ nolle agreement by filing criminal charges related to the same conduct at issue"; id.; the convictions must be vacated. See also People v. Reagan, 395 Mich. 306, 309, 235 N.W.2d 581 (1975) (nolle agreement was "a pledge of public faith which became binding when the [n]olle prosequi order was approved by the trial judge"); Bowers v. State, 500 N.E.2d 203, 204 (Ind. 1986) (enforcing agreement not to prosecute in exchange for defendant’s provision of information sufficient to obtain search warrant); State v. Franklin, 147 So.3d 231, 238 (La.App. 2014) (enforcing agreement not to prosecute conditioned on defendant’s successful completion of pretrial diversion program), cert. denied, 159 So.3d 460 (La. 2015); Jackson v. State, 358 Md. 259, 262, 277-78, 747 A.2d 1199 (2000) (enforcing agreement in which defendant waived speedy trial rights in exchange for state’s promise to dismiss charges if DNA analysis of certain evidence came back negative).

C. DISCUSSION

Resolution of this case depends on the answers to the following questions. First, is the charge of pistol without a permit in the Gore case for the same act as the charge of pistol without a permit in the Brown case? If the answer is no, the inquiry ends. If the answer is yes, then the court moves to the second question: is the subsequent prosecution for the same offense barred either because jeopardy attached at a prior proceeding or because it would violate due process principles by breaching the prior plea agreement? Only an affirmative answer entitles the petitioner to relief. Finally, the court must answer whether Attorney Patel was ineffective for failing to raise this claim in the prior habeas.

I. Are the Two Charges Based on a Continuing Course of Conduct?

First, the court finds that the two charges of pistol without a permit in the Gore case and the Brown case seek to punish the same conduct. "The proper double jeopardy inquiry when a defendant is convicted of multiple violations of the same statutory provision is whether the legislature intended to punish the individual acts separately or to punish only the course of action which they constitute." (Emphasis in original.) State v. Rawls, 198 Conn. 111, 121, 502 A.2d 374 (1985). Where a defendant is convicted twice under the same statute, to effectuate the purpose of the statute, the court must ask what "unit of prosecution" was intended by the legislature as the punishable act. See State v. Garvin, 242 Conn. 296, 306-07, 699 A.2d 921 (1997). Relevant to discerning a criminal statute’s unit of prosecution is the continuous offense doctrine, which recognizes that certain criminal statutes are intended to punish just once for a continuing course of conduct, rather than for each and every discrete act comprising that course of conduct. See State v. Edwards, 100 Conn.App. 565, 694, 918 A.2d 1008, cert. denied, 282 Conn. 928, 926 A.2d 666 (2007). "The continuous offense doctrine has its roots in Crepps v. Durden, 98 Eng.Rep. 1283, 1287 (K.B. 1777), where the court held that a baker who had sold four loaves of bread on Sunday committed a single offense of exercising his ordinary trade on Sunday, and not four offenses. The United States Supreme Court adopted the doctrine in In re Snow, 120 U.S. 274, 283-86, 7 S.Ct. 556, 30 L.Ed. 658 (1887). There, the defendant had been charged with three counts of unlawfully cohabiting with more than one woman. The charges were based on the defendant’s continuous cohabitation with the same women over a period of approximately three years; each charge was based on one year of that three-year period. Relying on Crepps ... the court concluded that the defendant’s continuous cohabitation with the same women supported only a single charge, because the charged offense was of a continuing nature. See In re Snow, supra, 281-86." (Internal quotation marks omitted.) Commonwealth v. Horne, 466 Mass. 440, 450, 995 N.E.2d 773 (2013).

Applying the continuous offense doctrine, courts have concluded that the unlawful possession of a weapon is a single, continuing offense for purposes of double jeopardy. For instance, in Commonwealth v. Horne, supra, 466 Mass. 452, the court held that "an individual commits a single violation ... for the duration of the uninterrupted period that he remains in possession of a rifle that he carries outside his residence or place of business. An individual who returns to his residence with a rifle that he has been carrying (or relinquishes possession of that rifle), and then goes back outside with the rifle, has committed a second violation. See State v. Williams, 59 Conn.App. 603, 608, 757 A.2d 1191 (2000) (statute criminalizing carrying pistol outside home or business without license is violated each time person carries pistol outside home or business without having license)." Horne was not entitled to relief because "[e]vidence at trial supported the inference that the defendant returned home after this confrontation." Commonwealth v. Horne, supra, 452. See also United States v. Hope, 545 F.3d 293, 296 (5th Cir. 2008) (possession of the same gun when arrested and on the previous day in a robbery, absent evidence that the possession was interrupted, cannot support two separate convictions); United States v. Jones, 533 F.2d 1387, 1391 (6th Cir. 1976), cert. denied, 431 U.S. 964, 97 S.Ct. 2919, 53 L.Ed.2d 1059 (1977) ("[p]ossession is a course of conduct, not an act; by prohibiting possession Congress intended to punish as one offense all of the acts of dominion which demonstrate a continuing possessory interest in a firearm"); see also Matter of Johnson v. Morgenthau, 69 N.Y.2d 148, 152, 505 N.E.2d 240, 512 N.Y.S.2d 797 (1987) (same); Webb v. State, 311 Md. 610, 615, 536 A.2d 1161 (1988) (same); cf. United States v. Ellis, 622 F.3d 784, 794 (7th Cir. 2010) ("to charge and punish a defendant for ... separate ‘possessions’ of the same gun, there must be a relinquishment of both actual and constructive possession of the gun before it is reacquired").

Section 29-35(a) provides, in relevant part: "No person shall carry any pistol or revolver upon his or her person, except when such person is within the dwelling house or place of business of such person, without a permit to carry the same issued as provided in section 29-28." Our Appellate Court has explained that carrying and possession are different concepts. State v. Williams, 59 Conn.App. 603, 608, 757 A.2d 1191, cert. denied, 254 Conn. 946, 762 A.2d 907 (2000), abrogated by State v. Porter, supra, 328 Conn. 648.

"While a person can possess an item without carrying it on his person, § 29-35 is designed to prohibit the carrying of a pistol without a permit and not the [mere] possession of one ... Accordingly, constructive possession of a pistol or revolver will not suffice to support a conviction under § 29-35." (Citation omitted; internal quotation marks omitted.) State v. Crespo, 145 Conn.App. 547, 573, 76 A.3d 664 (2013), aff’d, 317 Conn. 1, 115 A.3d 447 (2015). "[T]he requirement that the pistol or revolver was carried is satisfied if it shown that it was within the defendant’s control or dominion in a public area." (Citation omitted; internal quotation marks omitted.) State v. L’Minggio, 71 Conn.App. 656, 672, 803 A.2d 408, cert. denied, 262 Conn. 902, 810 A.2d 270 (2002). "Because there is no temporal requirement in § 29-35 ... and no requirement that the pistol or revolver be moved from one place to another to prove that it was carried ... a defendant can be shown to have carried a pistol or revolver upon his person, within the meaning of the statute, by evidence proving, inter alia, that he grasped or held it in his hands, arms or clothing or otherwise bore it upon his body for any period of time while maintaining dominion or control over it." (Citations omitted.) State v. Crespo, supra, 573-74. Thus, "[t]o establish that a defendant is guilty of carrying a pistol without a permit in violation of § 29-35(a), the state must prove that the defendant: "(1) carried a pistol or revolver upon his or her person; (2) did so without the proper permit; and (3) was not within his or her dwelling house or place of business." State v. Davis, 324 Conn. 782, 794, 155 A.3d 221 (2017).

Although our Appellate Court has explained that carrying and possession are different concepts, the crime as created by the legislature and interpreted by our Appellate Court, is in effect, a subset of a possession offense, known as actual possession. "Actual possession rests on ... direct physical contact as opposed to the legal fiction of constructive possession that can be inferred from the circumstances and can be the equivalent of actual possession." State v. Williams, 110 Conn.App. 778, 787, 956 A.2d 1176, cert. denied, 289 Conn. 957, 961 A.2d 424 (2008).

The unit of prosecution for § 29-35 is the carrying of a pistol or revolver outside one’s dwelling house or place of business without a permit to do so. As the statute makes clear, it is the fact of being outside one’s dwelling house or place of business while carrying the pistol or revolver without the proper permit that provides the necessary element supporting a conviction under § 29-35. Based on the foregoing, an individual commits a single violation of § 29-35 for the duration of the uninterrupted period that he carries a pistol or revolver outside his dwelling house or place of business. An individual who returns to his dwelling house or place of business with a pistol or revolver that he has been carrying, and then goes back outside with that pistol or revolver, has committed a second violation. In addition, an individual who is carrying a pistol or revolver on his person, who then leaves the pistol or revolver somewhere, relinquishing actual physical possession, even if he still has constructive possession, and then carries the pistol or revolver again, has committed a second violation. In addition, if it shown that the pistol or revolver used in a first incident was a different weapon from that involved in a second incident, there would be two violations.

The respondent relies on State v. Williams, supra, 59 Conn.App. 603, in which our Appellate Court held that double jeopardy did not prohibit two convictions for pistol without a permit because the legislature intended to punish each use of the unlicensed weapon in public. This reliance is misplaced. First, in Williams, the substitute information "alleged that the defendant unlawfully carried a pistol on October 16, 1996, at or near 187 Ferry Street and on October 21, 1996, at or near 19 Alton Street." Id., 605. On October 16, 1996, the defendant used the weapon in a shooting. Id., 604. He then took the gun and fled. Id., 605. He stayed with a cousin until October 20, 1996, and, thereafter, he stayed at a friend’s house on Alton Street. Id. On October 21, 1996, police were on Alton Street, investigating the shooting. Id. They came across the defendant, who had the weapon on his person. Id. Thus, he was charged with two counts of pistol without a permit. Id. The prohibited acts of carrying a pistol without a permit occurred five days apart. Id., 607. In deciding that two separate prosecutions were permitted, the court relied on an earlier decision in State v. Hopes, 26 Conn.App. 367, 374-75, 602 A.2d 23, cert. denied, 221 Conn. 915, 603 A.2d 405 (1992), in which our Appellate Court was concerned with defining the word "carry." Hopes argued that the term carry must mean transportation as opposed to mere possession on his person. Id., 373. Noting that the legislature intended for the pistol without a permit statute to prohibit the use of unlicensed weapons in public, the court concluded that "there does not have to be proof that the defendant physically moved or transported the pistol over space while carrying an unlicensed pistol." Id., 375. In Hopes, however, there was no double jeopardy claim as there was only one count of pistol without a permit.

Second, the court in Williams, in deciding "whether the crimes arose out of the same act or transaction, [analyzed] the language of the information." (Citations omitted; internal quotation marks omitted.) State v. Williams, supra, 59 Conn.App. 606-07. Since the informations alleged two offenses at two separate locations, five days apart, the court concluded that "the crimes here are separate and distinct and did not arise out of the same act or transaction." Id. This approach is, of course, no longer good law. As reiterated by our Supreme Court in State v. Porter, supra, 328 Conn. 648, courts must look to the evidence presented at trial and the state’s theory of the case to determine whether the two charges stem from the same act or conduct.

Applying the correct framework, it is clear that the two charges arise from the same act and form one continuing course of conduct. Here, the facts are that the Gore and Brown incidents occurred anywhere from a few minutes to one hour apart and there was no evidence presented that the petitioner at any time gave up dominion and control over the firearm or reentered any residence such that there was a break in the continuous act of possession. Further, the state relied on the Gore incident in the Brown case to prove that the petitioner was the same individual who committed the murder due to the geographic and temporal proximity between the two incidents, thus further supporting the conclusion that the two incidents were one continuing course of conduct.

The respondent’s argument for two convictions and two punishments in the present case is reliant upon the interval elapsing between the times the petitioner was observed carrying the handgun and that two persons were put at risk while the gun was being carried. There is, however, no requirement in § 29-35 as to time, person at risk, or incident. On the record before the court, all that was proven which was material with respect to the circumstances surrounding the carrying a pistol without a permit offense was that on August 3, 2003, in New Haven between 7 p.m. and 8 p.m. the petitioner was unlawfully carrying a pistol without a permit, and that a few minutes to an hour later at approximately 8 p.m. the petitioner was unlawfully carrying a pistol without a permit. The state did not establish that more than one handgun was involved or that the carrying of the weapon between 7 p.m. and 8 p.m. was interrupted in any way. To hold otherwise would result in an interpretation of the statute that would permit as many charges as there are minutes or even seconds in the period that a person is out in public with an unlicensed weapon.

2. Is Re-Prosecution Barred by the Constitution?

Next, the court considers whether this subsequent prosecution is barred because there was a prior prosecution at which there was a resolution such that the principles of finality were implicated. The court finds that jeopardy did attach when the Gore case was disposed. Here, the parties entered into a plea bargain to resolve the Gore incident by way of a plea to a single charge. The state had initially charged pistol without a permit, but did not seek to have the petitioner plead guilty to that charge, instead finding it sufficient that the petitioner pled to risk of injury and accepted a sentence of incarceration for two years and one day. In order to effectuate this agreement, the state filed a one-count substitute information. Under Connecticut law, jeopardy attached at the time the sentence was imposed. As discussed above, courts have routinely held that once jeopardy has attached, the state is barred from re-prosecuting charges that were intended to be dismissed as part of that plea agreement. The court sees no reason to differentiate between a scenario where the defendant pleads to only some counts of the information, with an agreement to dismiss or not prosecute the others, and the instant scenario, where essentially the same result was accomplished by way of a substitute information. For the petitioner’s charges, jeopardy attached at the time of the imposition of sentence and the state would be barred from re-prosecuting him for the offense of conviction and those offenses that were not prosecuted as part of the plea agreement. Certainly, after the imposition of sentence by Judge Devlin, the state could not seek to reinstate the charges not pursued and seek punishment for them without running afoul of the Constitution. That must hold true where the state attempts to do so through a separate prosecution initiated at a future date. To hold otherwise would be to endorse a scenario where the state would be permitted to violate the "principles of fairness and finality"; United States v. Wilson, supra, 420 U.S. 343; by making repeated attempts to convict an individual. At the time the plea was accepted and sentence was imposed by the trial court, the parties expected that the Gore case was resolved and the petitioner had a legitimate expectation of finality with regard to those charges.

An analysis under the due process clauses of the federal and state constitutions would compel the same result. There was an agreement between the parties, the intent of which is apparent from the record, and the petitioner fulfilled that agreement. That agreement induced the petitioner to plead guilty to risk of injury to a minor in exchange for the state’s promise that it would not further prosecute him for any other charges related to those same acts. The state has not fulfilled its end of the bargain, as evidenced by the petitioner’s subsequent conviction for pistol without a permit stemming from the same act. The agreement between the parties in the Gore case bars the petitioner’s re-prosecution.

3. Was Prior Habeas Counsel Ineffective?

The court concludes that Attorney Patel was ineffective for failing to raise this claim. Attorney Patel had the entire file in his possession including the reports and warrants related to both the Gore case and the Brown case. He, however, testified that he did not consider this issue at all because the petitioner told him he was not there, so he focused only on an alibi. It should have been apparent to habeas counsel that there was a reasonable probability that petitioner’s conviction for pistol without a permit was constitutionally unsound, as a simple review of the two informations in the Gore and Brown case would reveal that the two incidents were alleged to have occurred on the same date. Upon learning this information, reasonably competent defense counsel would have investigated the basis for the prior charge to determine if there was a constitutional bar to re-prosecution. No strategic reason has been provided for this oversight, nor can there be one.

In order to succeed on his claim of ineffective assistance of habeas counsel, "a [petitioner] need not show that counsel’s deficient conduct more likely than not altered the outcome of the case ... because the result of a criminal proceeding can be rendered unreliable, and thus the proceeding itself unfair, even if errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." (Citation omitted; internal quotation marks omitted.) Skakel v. Commissioner of Correction, supra, 329 Conn. 38, quoting Strickland v. Washington, supra, 466 U.S. 693-94. The petitioner must establish, instead, that the deficient performance gives rise to a loss of confidence in the verdict. Id. The habeas court’s inquiry must focus on the fundamental fairness of the proceeding and the court must be "concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results." Strickland v. Washington, supra, 696.

Based on the foregoing, the court is faced with a loss of confidence in the verdict of guilty on the charge of pistol without a permit. There is also a reasonable probability that, had the issue been raised during the prior habeas, the outcome of that proceeding would have been different. The petitioner has been sentenced to five years’ incarceration, consecutive to the forty-five-year sentence for murder. There is prejudice to him stemming from the unconstitutional conviction.

V. CONCLUSION

Based on the foregoing, the court finds that prior habeas counsel should have raised a constitutional challenge to the petitioner’s conviction for pistol without a permit and that there is a reasonable probability that the outcome of that proceeding would have been different because the court finds that the petitioner’s conviction for pistol without a permit violates our state and federal constitutions. The petitioner’s conviction and sentence for pistol without a permit is vacated.