Opinion
No. CV08-4002747
March 5, 2010
MEMORANDUM OF DECISION
The petitioner initiated the instant matter by way of a pro se petition for a writ of habeas corpus filed on November 5, 2008, and amended on December 30, 2008. Although the petitioner initially requested the appointment of counsel, he failed to cooperate with the indigency investigation conducted by the Office of the Chief Public Defender and has, therefore, continued to represent himself in this matter. The amended petition alleges that the petitioner's conviction for kidnapping in the first degree should be vacated in light of several recent Supreme Court decisions. On June 5, 2009, the respondent filed a return denying that the petitioner is entitled to habeas corpus relief. The return also raises the affirmative defense of procedural default, as well as asserting that the recent Supreme Court decisions do not apply retroactively. On July 13, 2009, the petitioner filed a reply to the return and asserted that he had not procedurally defaulted. The reply also argues that because the Supreme Court only clarified existing law and did not create new law, the holdings do apply retroactively. The petitioner later supplemented the reply on August 11, 2009.
On July 27, 2009, the petitioner filed a motion for summary judgment in accordance with Practice Book § 23-37. The petitioner also filed a memorandum of law and supporting documents. The parties appeared before this court on October 5, 2009, for a hearing on the motion for summary judgment. The court ordered the respondent to submit a brief on or before October 30, 2009, and that the petitioner submit, by November 13, 2009, either a reply brief or a statement that he was not filing a reply. The respondent sought and received an extension of time to file an objection to the summary judgment motion. The objection was filed on November 3, 2009. The court has received neither a reply nor such statement from the petitioner by November 13, 2009.
DISCUSSION
Practice Book § 23-37 states that: "At any time after the pleadings are closed, any party may move for summary judgment, which shall be rendered if the pleadings, affidavits and any other evidence submitted show that there is no genuine issue of material fact between the parties requiring a trial and the moving party is entitled to judgment as a matter of law."
"`A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The test is whether a party would be entitled to a directed verdict on the same facts . . . A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact.' (Citations omitted; internal quotation marks omitted.) Lunn v. Cummings Lockwood, 56 Conn.App. 363, 370, 743 A.2d 653 (2000)." Washington v. Blackmore, 119 Conn.App. 218, 220-21 (2010).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) DuPerry v. Kirk, 90 Conn.App. 493, 508-09, 877 A.2d 928 (2005), cert. denied, 277 Conn. 921, 895 A.2d 795 (2006), citing and quoting Allstate Ins. Co. v. Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004).
The underlying facts are not at issue. "On July 21, 1989, the [petitioner] entered the Pump House Gallery in Bushnell Park in Hartford, where the victim worked. After speaking to two patrons of the Gallery whom he knew, the [petitioner] left the Gallery and subsequently returned with another man. The [petitioner] then grabbed the victim around the neck, dragged her into the bathroom and hit her in the face. Unbuckling the victim's belt, the [petitioner] demanded that she `get naked.' The victim, in an attempt to placate the [petitioner], offered the [petitioner] her watch and earrings, which he accepted. Thereafter, the [petitioner] left the bathroom in search of the victim's knapsack and did not return. The victim never recovered her belongings." State v. Smith, 219 Conn. 160, 162, 592 A.2d 382 (1991).
"After a jury trial, the [petitioner] . . . was convicted of one count of kidnapping in the first degree in violation of General Statutes 53a-92(a)(2)(A) and (B), one count of robbery in the third degree in violation of General Statutes 53a-136, one count of larceny in the second degree in violation of General Statutes 53a-123(a)(3), and one count of assault in the third degree in violation of General Statutes 53a-61(a)(1). The defendant was sentenced to a total effective term of thirty-five years imprisonment." Id., at pg. 161.
The petitioner appealed from the judgment of conviction and has previously sought habeas corpus relief on several occasions. The petitioner has not, however, previously raised the claim raised in the instant petition, which would have been impossible until the 2008-2009 release of the Supreme Court decisions upon which he now relies.
The petitioner's claim in this habeas corpus is premised on several recent Supreme Court decisions: State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008); State v. Sanseverino, 287 Conn. 608, 949 A.2d 1156 (2008), overruled in part by State v. DeJesus, 288 Conn. 418, 437, 953 A.2d 45 (2008), superseded in part after reconsideration by State v. Sanseverino, 291 Conn. 574, 969 A.2d 710 (2009).
"In State v. Salamon, supra, 287 Conn. 528-41, [the Supreme Court] reconsidered [its] long-standing interpretation of our kidnapping statutes, General Statutes §§ 53a-91 through 53a-94a . . . The defendant ultimately was charged with kidnapping in the second degree in violation of General Statutes § 53a-94, unlawful restraint in the first degree, and risk of injury to a child. Id., 516. At trial, the defendant requested a jury instruction that, if the jury found that the restraint had been incidental to the assault, then the jury must acquit the defendant of the charge of kidnapping. Id. The trial court declined to give that instruction. Id.
"In response to the defendant's claim on appeal to this court in Salamon, [the Supreme Court] reexamined [its] long-standing interpretation of the kidnapping statutes to encompass even restraints that merely were incidental to and necessary for the commission of another substantive offense, such as robbery or sexual assault. Id., 522-28. [The Supreme Court] concluded that neither considerations related to the doctrine of stare decisis nor legislative acquiescence as to [its] prior, literal interpretation justified adherence to that interpretation; id., 520-22; particularly when it was bound, in some instances, to produce `unconscionable, anomalous, or bizarre results.' Id., 524. Moreover, [the court] noted that, since 1977, when [it] first had interpreted the kidnapping statutes, courts of many other states had adopted a contrary interpretation, barring convictions on the basis of incidental restraint or movement. Id., 526-27. Thus, in Salamon, [the Supreme Court] engaged, for the first time, in a more searching inquiry as to whether the kidnapping statutes `warrant[ed] the broad construction that [it] had given them.'" Id., 524.
"[Supreme Court] case law dating back to 1977 had concluded that the kidnapping statutes required only an element of intent, and not any time or distance elements. Id., 531-32. In this regard, the hallmark of a kidnapping is an `abduction,' which requires `restraint,' the latter also being an element of the lesser crime of unlawful restraint. Id., 530. Each of these terms, which are statutorily defined, requires a separate intent element. The differing intents required for abduction and restraint presented [the court] with an ambiguity not previously explored under [its] case law. Id., 534. In other words, [the court] had not `explored the parameters of that intent, in particular, how the intent to prevent [a victim's] liberation . . . that is, the intent necessary to establish an abduction, differs from the intent to interfere substantially with [a victim's] liberty . . . necessary to establish a restraint. Certainly, when an individual intends to interfere substantially with another person's liberty, he also intends to keep that person from escaping . . . [but] the point at which an intended interference with liberty crosses the line to become an intended prevention of liberation is not entirely clear." (Citations omitted; internal quotation marks omitted.) Id. [The Supreme Court] concluded in Salamon that this `point' is significant because, `[a]t least in a case not involving the secreting of a victim in a place he or she is unlikely to be found,' it is the intent that separates an abduction, and thus a kidnapping, from a mere unlawful restraint, which imposes `relatively minor penalties . . .' Id.
"To resolve this ambiguity, [the Supreme Court] examined the `common law of kidnapping, the history and circumstances surrounding the promulgation of our current kidnapping statutes and the policy objectives animating those statutes, [and] we conclude[d] the following: Our legislature, in replacing a single, broadly worded kidnapping provision with a gradated scheme that distinguishes kidnappings from unlawful restraints by the presence of an intent to prevent a victim's liberation, intended to exclude from the scope of the more serious crime of kidnapping and its accompanying severe penalties those confinements or movements of a victim that are merely incidental to and necessary for the commission of another crime against that victim." Id., 542. Although [the Supreme Court] reaffirmed [its] long-standing rule that no minimum period of restraint or degree of movement is necessary, `[t]he guiding principle is whether the [confinement or movement] was so much the part of another substantive crime that the substantive crime could not have been committed without such acts . . .' (Footnotes omitted; internal quotation marks omitted.) Id., 546." State v. Sanseverino, supra, 287 Conn. 620-23.
The Supreme Court has very recently elaborated on its holdings in Salamon and its progeny. "In Salamon, we examined more closely the contours of the intent to prevent a victim's liberation. Although we did not attempt to provide a comprehensive definition of that intent, we determined that the legislature meant to exclude from its scope an intent to confine or move a victim that is wholly incidental to the commission of another crime which, by its nature, necessitates some restraint of the victim. State v. Salamon, supra, 287 Conn. 542. We did not otherwise limit the definition of `intent to prevent . . . liberation'; General Statutes § 53a-91(2); or restrict the jury's role in determining whether it has been proven. Indeed, we emphasized that the holding in Salamon was not a complete refutation of the principles established by our prior kidnapping jurisprudence, specifically, that no minimum period of confinement or degree of movement is required to establish kidnapping. State v. Salamon, supra, 546. We noted that `[w]hether the movement or confinement of the victim is merely incidental to and necessary for another crime will depend on the particular facts and circumstances of each case' and that, `when the evidence reasonably supports a finding that the restraint was not merely incidental to the commission of some other, separate crime, the ultimate factual determination [of whether the defendant intended to prevent the victim's liberation] must be made by the jury.' (Emphasis in original.) Id., 547-48. We reversed the defendant's kidnapping conviction and remanded the case for such a determination. Id., 549-50. Subsequent to our decision in Salamon, we heard two appeals that similarly challenged kidnapping convictions on the ground that the restraint at issue was brief and wholly incidental to the commission of another crime, which, in each case, was sexual assault. See State v. DeJesus, 288 Conn. 418, 426, 953 A.2d 45 (2008); State v. Sanseverino, 287 Conn. 608, 612, 949 A.2d 1156 (2008), overruled in part by State v. DeJesus, supra, 437, superseded in part after reconsideration by State v. Sanseverino, 291 Conn. 574, 969 A.2d 710 (2009). In deciding these cases, we determined that their facts implicated the new rule announced in Salamon and, therefore, required reversal of the defendants' kidnapping convictions. See State v. DeJesus, supra, 428; State v. Sanseverino, supra, 287 Conn. 625-26. We concluded further that the correct remedy was to remand each case for a new trial in which the jury properly would be instructed as to the rule of Salamon and the state would have the opportunity to present evidence and to argue that the restraint involved was not entirely incidental to the defendant's commission of sexual assault. State v. Sanseverino, supra, 291 Conn. 589-90; State v. DeJesus, supra, 438-39. We reasoned that double jeopardy concerns did not mandate acquittal when the evidence presented was sufficient to establish kidnapping under the standard applicable at the time of trial, but not under the standard newly articulated in Salamon, because any insufficiency in proof resulted only from the subsequent change in the law. State v. Sanseverino, supra, 291 Conn. 588; State v. DeJesus, supra, 436." State v. Winot, 294 Conn. 753, 762 n. 7 (2010).
Given that the petitioner here was convicted nearly two decades before the Supreme Court released its decision in Salamon, the first and most obvious question presented to this court is whether the holding in Salamon may be applied retroactively. A critical component to the Supreme Court's decisions issued subsequent to Salamon itself, namely Sanseverino and DeJesus, was that those two direct appeals from the criminal convictions were pending at the time Salamon was released. State v. Sanseverino, supra, 287 Conn. 620 n. 11; State v. DeJesus, 288 Conn. 429 n. 9. Thus, although the Supreme Court has not explicitly indicated whether it's holding in Salamon applies retroactively, it is implicit from the Supreme Court's decisions in Sanseverino and DeJesus that the Salamon holding is to be applied prospectively.
The court notes that the Supreme Court likely will address the issue of retroactivity in the context of an appeal presently pending before the Supreme Court, namely Luurtsema v. Commissioner of Correction, docket number S.C. 18383, which is fully briefed and ready to be assigned for arguments. There, "[t]he petitioner brought [a] habeas action, challenging the legality of his sentence for kidnapping in light of Salamon and State v. Sanseverino, [ supra], in which the Supreme Court, applying Salamon, concluded that the defendant was entitled to reversal of his kidnapping conviction. The habeas court [in Luurtsema] reserved the following questions for the Supreme Court's review: (1) Do State v. Salamon and State v. Sanseverino apply in habeas corpus proceedings? (2) Do State v. Salamon and State v. Sanseverino apply in the petitioner's habeas corpus case? Since the habeas court's reservation, the Supreme Court has overruled that portion of Sanseverino directing that a judgment of acquittal be rendered on the kidnapping charge, ruling instead that, when a defendant is entitled to reversal of a kidnapping conviction because the jury was not instructed in accordance with Salamon, the appropriate remedy is a remand of the case for a new trial on that charge." Ct. Law Journal (Aug. 11, 2009), at pgs. 6B-C.
Unless an exception applies, even new constitutional rules do not apply retroactively in collateral proceedings. See, e.g., Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). "In Teague v. Lane, . . . the United States Supreme Court . . . held that . . . new [ constitutional] rules generally should not be applied retroactively. Id., 310; see also Johnson v. Warden, [ 218 Conn. 791, 797, 591 A.2d 407 (1991)], citing the holding of Teague. It also identified two exceptions to this general rule of nonretroactivity: (1) if the rule places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe or (2) if the new rule requires the observance of those procedures that are implicit in the concept of ordered liberty. Teague v. Lane, supra, 307." Larkin v. Commissioner of Correction, 45 Conn.App. 809, 814-15, 699 A.2d 207 (1997).
"When considering the retroactivity of a penal statute, [i]t is axiomatic that, [w]hether to apply a statute retroactively or prospectively depends upon the intent of the legislature in enacting the statute . . . In seeking to discern that intent, [o]ur point of departure is . . . [General Statutes] § 55-3, which . . . we have uniformly interpreted . . . as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only . . . The [l]egislature only rebuts this presumption when it clearly and unequivocally expresses its intent that the legislation shall apply retrospectively . . . As a corollary to this principle, we also have presumed that procedural or remedial statutes are intended to apply retroactively absent a clear expression of legislative intent to the contrary . . . While there is no precise definition of either [substantive or procedural law], it is generally agreed that a substantive law creates, defines and regulates rights while a procedural law prescribes the methods of enforcing such rights or obtaining redress . . ." (Citation omitted; internal quotation marks omitted.) Mead v. Commissioner of Correction, 282 Conn. 317, 323, 920 A.2d 301 (2007).
Although the petitioner here is not seeking relief that would necessitate the retroactive application of a statute, retroactive application of appellate case law raises similar concerns. "When our Supreme Court has intended a decision to apply prospectively only, it knows how to say so clearly. State v. Delvalle, 250 Conn. 466, 475-76, 736 A.2d 125 (1999) (`we . . . direct our trial courts to refrain from using the [jury instruction at issue in that case] in the future' . . . State v. Troupe, 237 Conn. 284, 305, 677 A.2d 917 (1996) (`rule that we announce today will apply only to . . . [testimony admitted after] the date of the publication of this opinion'); State v. Brown, 235 Conn. 502, 526, 668 A.2d 1288 (1995) (`we now hold that henceforth a trial court must [follow the announced rule]' . . .)." State v. Young, 57 Conn.App. 566, 572-73, 750 A.2d 482 (2000), rev'd in part on other grounds, 258 Conn. 79, 779 A.2d 112 (2001), citing and quoting State v. Quinones, 56 Conn.App. 529, 533, 745 A.2d 191 (2000).
In Young, "[t]he state sought certification to appeal from that portion of the Appellate Court's judgment reversing the trial court's judgment, claiming that the Appellate Court improperly had concluded that our decision in [ State v. Malave], 250 Conn. 722, 737 A.2d 442 (1999),] should be applied retroactively. [The Supreme Court] granted the state's petition limited to the issue of whether Malave has retrospective applicability. State v. Young, 253 Conn. 922, 754 A.2d 799 (2000). [The Supreme Court did] not decide this certified issue . . . [.]" State v. Young, 258 Conn. 79, 83-84, 779 A.2d 112 (2001).
In the instant case, there are no material facts in dispute. The first question presented to this court, a purely legal question that is dispositive of this case, is whether the Supreme Court's analysis and interpretation of the kidnapping statutes in Salamon applies retroactively. The Supreme Court in that case did not indicate that its holding is to be applied retroactively. To the contrary: it is implicit from Salamon's progeny that the application of the holding is prospective. See State v. Sanseverino, supra, 287 Conn. 620 n. 11; State v. DeJesus, 288 Conn. 429 n. 9. Non-retroactivity, especially with regard to substantive issues, whether in the context of constitutional, statutory or case law, is neither presumed nor favored. Simply put, this court will not infer from Salamon and its progeny that the Supreme Court intended, in the absence of an explicit holding, its interpretation of the kidnapping statutes to apply retroactively.
Based upon the foregoing, the petitioner's motion for summary judgment is denied. Because there are no factual issues to be tried to the court, and the resolution of the legal question presented leaves nothing to be adjudicated by a habeas corpus court, judgment of dismissal without prejudice shall enter in accordance with Practice Book § (5). Should a future Supreme Court decision such as Luurtsema v. Commissioner of Correction establish that Salamon does apply retroactively, then the petitioner may pursue further habeas corpus relief premised on such authority.
It is so ordered.