258 Conn. 374 | Conn. | 2001
Opinion
The sole issue raised by this appeal is whether the habeas court properly rejected the claim of the petitioner, William A. Connelly, that the forty year prison sentence he received following his conviction of two counts of kidnapping in the second degree in
The relevant facts and unusual procedural history of this case are set forth in State v. Connelly, 46 Conn. App. 486, 700 A.2d 694 (1997), cert. denied, 244 Conn. 907, 908, 713 A.2d 829, cert. denied, 525 U.S. 907, 119 S. Ct. 245, 142 L. Ed. 2d 201 (1998), in which the Appellate Court affirmed the petitioner’s kidnapping and assault convictions. Id., 513. “On November 10, 1989, the [petitioner] and his brother Brian Connelly resided at their mother’s house in the town of Newington. Their mother, at that time, was hospitalized. The [petitioner’s] other brothers, Timothy Connelly and Edward Connelly, and sister, Maureen Briggs, thought that their mother should be placed in a nursing home. The [petitioner] disagreed.
“That morning, Edward and Timothy arrived at their mother’s house to clean out a room that Timothy had
“Newington police officer Michael Tkac responded to the telephone call. The [petitioner] told Tkac that he was holding Edward and Timothy for mail fraud, and that he would release them only to the FBI. Other officers, including a special weapons and tactics police team, arrived at the house. The [petitioner] demanded that the FBI, Attorney Edward Daly, and a court reporter arrive by 1 p.m. or else he would shoot Edward. At 12:50 p.m., the FBI had not arrived, and the [petitioner] shot Edward in the wrist, breaking a bone. The [petitioner] set another deadline of 3 p.m., threatening to shoot Timothy if the persons he requested had not arrived. The [petitioner] asked for certain documents from his briefcase, which were passed under the door to him. At approximately 2:50 p.m., the [petitioner] shot Timothy in the hand, injuring bones and ligaments.” Id., 488-89.
“[0]n April 20, 1990, in a trial to the court, Dunn, J., the [petitioner] was found not guilty by reason of [lack
In 1993, the petitioner filed a petition for a writ of habeas corpus seeking, inter alia: (1) to vacate the trial court’s judgment of acquittal by reason of lack of capacity due to mental disease or defect and to have the case remanded to the trial court for further proceedings; and (2) to be released from the custody of the commissioner of mental health and to be transferred to the custody of the commissioner of correction. Id. “The [petitioner] claimed in his habeas petition that his confinement was illegal because, among other things ... he was not canvassed regarding the waiver of his right to a jury
In January, 1995, the petitioner was retried on the same charges of which he previously had been acquitted by reason of lack of capacity due to mental disease or defect, namely two counts of second degree kidnapping and two counts of second degree assault. Id., 492. A
Thereafter, the petitioner filed a petition for a writ of habeas corpus, in which he claimed that the second trial court had imposed a forty year prison sentence in retaliation for his successful habeas challenge to his insanity acquittal and attendant period of commitment. In support of his claim, the petitioner relied primarily on North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), and its progeny, which hold that, in some circumstances, an increased sentence after retrial for the same charges gives rise to a rebuttable presumption of judicial vindictiveness. See, e.g., Wasman v. United States, 468 U.S. 559, 564-65, 104 S. Ct. 3217, 82 L. Ed. 2d 424 (1984). The petitioner requested that his second sentence of forty years be vacated and the original sentence of ten years be reinstated. The habeas court, Hon. Thomas H. Corrigan, judge trial referee, rejected the petitioner’s claim and dismissed the petitioner’s habeas petition, concluding that a presumption of vindictiveness is not warranted when the second sentence follows an insanity acquittal
We begin our analysis of the petitioner’s claim with a review of the applicable precedent. In North Carolina v. Pearce, supra, 395 U.S. 711, “the United States
“The United States Supreme Court has subsequently examined the applicability of the Pearce presumption of vindictiveness. See, e.g., Texas v. McCullough, 475 U.S. 134, [136, 138, 141] 106 S. Ct. 976, 89 L. Ed. 2d 104 (1986) (defendant originally sentenced by jury; judge concluded defendant entitled to new trial; upon retrial defendant chose sentencing by judge; Pearce presumption inapplicable and even if it were to apply, court’s findings overcame presumption); Wasman v. United States, [supra, 468 U.S. 569-70] (presumption of vindictiveness applies since petitioner received greater sentence following retrial than that he had originally received; consideration by court of conviction between
“The decision in . . . Pearce . . . was only premised on the apparent need to guard against vindictiveness in the resentencing process. . . . [I]n certain cases in which action detrimental to the defendant has been taken after the exercise of a legal right ... it [is] necessary to presume an improper vindictive motive. Given the severity of such a presumption, however— which may operate in the absence of any proof of an improper motive and thus may block a legitimate response to criminal conduct—[the presumption
“The violation of due process [found in cases] such as Pearce and Perry does not arise from the possibility that a defendant may be discouraged from exercising legal rights, but instead from the danger that the State might be retaliating against the accused for lawfully attacking his conviction. Bordenkircher v. Hayes, supra, [434 U.S.] 363. [Wjhere the presumption applies, the sentencing authority or the prosecutor must rebut the presumption that an increased sentence or charge resulted from vindictiveness; where the presumption does not apply, the defendant must affirmatively prove actual vindictiveness. . . .
“The United States Supreme Court recently revisited this issue in Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989). Smith clarified the scope of the Pearce rule, stating that [w]hile the Pearce opinion appeared on its face to announce a rule of sweeping dimension, [the court’s] subsequent cases have made clear that its presumption of vindictiveness do[es] not apply in every case [in which] a convicted defendant receives a higher sentence on retrial. . . . Id., 799. The court further explained that the application of the Pearce rule is limited to circumstances where its objectives are thought most efficaciously served, [namely] those [circumstances] in which there is a reasonable likelihood . . . that the increase in sentence is the product of actual vindictiveness on the part of the sen
“[Accordingly] there is no basis for a presumption of vindictiveness where a second sentence imposed after a trial is heavier than a first sentence imposed after a guilty plea .... [Id.], 801-803.”
“[B]efore undertaking a Pearce analysis, we must determine whether the [second] sentence imposed . . . was, in fact, greater than the sentence originally imposed. ... In determining whether the sentence was more severe, [i]t is the actual effect of the new sentence as a whole on the total amount of punishment lawfully imposed by [the judge] on the defendant . . . which is the relevant inquiry .... Further [more], [i]n determining whether the second sentence is harsher than the first, we look not at the technical length of the sentence but at its overall impact [on the defendant].” (Citations omitted; internal quotation marks omitted.) State v. Faria, 254 Conn. 613, 622-23, 758 A.2d 348 (2000).
As Pearce and its progeny make clear, the petitioner cannot prevail on his judicial vindictiveness claim unless he makes a threshold showing that the forty year sentence imposed by Judge Scheinblum is greater than the sentence that he had received following his first trial. In common parlance, the petitioner’s forty year sentence reasonably may be considered “greater,” or
Even if we assume, for purposes of the comparison mandated by Pearce, that the sentence imposed on the petitioner after his second trial is greater than the period of commitment he received following his insanity acquittal, the petitioner has not demonstrated that the Pearce presumption applies to the present case. When a different judge presides at the second trial, as in the present case, the likelihood of vindictiveness is minimal: that judge has “no personal stake in the prior conviction and no motivation to engage in self-vindication”; Chaffin v. Stynchcombe, supra, 412 U.S. 27; because “it is not the court that is asked to do over what it thought it had already done correctly.” Golten v. Kentucky, supra, 407 U.S. 116-17; see also State v. Coleman, supra, 242 Conn. 544 n.24 (when different judge imposes subsequent sentence, probability that sentence will be viewed as vindictive is substantially reduced). Thus, the United States Supreme Court has stated that the Pearce “presumption is . . . inapplicable [when] different sentencers [have] assessed the varying sentences that [the defendant] receive[s]. . . . [W]hen different sentencers are involved, [i]t may often
Although the defendant in McCullough originally was convicted and sentenced by a jury and, following a retrial before a second jury, was found guilty and sentenced by the trial judge; id., 135-36; the court’s reasoning is no less applicable to the facts of the present case: when a different judge sentences a defendant after a retrial, and that judge articulates logical, nonvindictive reasons for the sentence, there simply is no sound basis to presume that that sentence is the product of judicial vindictiveness.
The record of the sentencing hearing before Judge Scheinblum reflects a wholly logical, nonvindictive basis for the forty year sentence. Immediately before imposing sentence, Judge Scheinblum observed that, although he would have preferred that the petitioner receive psychiatric treatment, he had no choice but to incarcerate the petitioner because the evidence adduced at trial indicated that he is a dangerous individual who steadfastly has refused psychiatric help notwithstanding his lengthy period of commitment at
The judgment is affirmed.
In this opinion the other justices concurred.
General Statutes (Rev. to 1989) § 53a-94 provides in relevant part: “(a) A person is guilty of kidnapping in the second degree when he abducts another person. . . .”
“ ‘Abduct’ means to restrain a person with intent to prevent his liberation by either (A) secreting or holding him in a place where he is not likely to be found, or (B) using or threatening to use physical force or intimidation.” General Statutes § 53a-91 (2).
General Statutes (Rev. to 1989) § 53a-60 provides in relevant part: “(a) A person is guilty of assault in the second degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or (2) with intent to cause physical iryury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or (3) he recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument . . . .”
The due process clause of the fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . . .”
See General Statutes § 53a-13 (a) (“[i]n any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law”). Simply for ease of reference, we use the terms “lack of capacity due to mental disease or defect” and “insanity” interchangeably throughout this opinion.
The petitioner was confined at the Whiting Forensic Institute in Middletown.
“A person committed to the custody of the commissioner of mental health, after a trial in which a verdict of not guilty by reason of [lack of capacity due to] mental disease or defect has been [returned], may appeal from the commitment order. General Statutes § 17a-597; State v. Warren, 169 Conn. 207, 363 A.2d 91 (1975).” State v. Connelly, supra, 46 Conn. App. 490 n.3.
General Statutes § 54-82b (b) provides: “In criminal proceedings the judge shall advise the accused of his right to trial by jury at the time he is put to plea and, if the accused does not then claim a jury, his right thereto shall be deemed waived, but if a judge acting on motion made by the accused within ten days after judgment finds that such waiver was made when the accused was not fully cognizant of his rights or when, in the opinion of the judge, the proper administration of justice requires it, the judge shall vacate the judgment and cause the proceeding to be set for jury trial.”
Practice Book § 42-1 provides: “The defendant in a criminal action may demand a trial by jury of issues which are triable of right by jury. If at the time the defendant is put to plea, he or she elects a trial by the court, the judicial authority shall advise the defendant of his or her right to a trial by jury and that a failure to elect a jury trial at that time may constitute a waiver of that right. If the defendant does not then elect a jury trial, the defendant’s right thereto may be deemed to have been waived.”
General Statutes § 52-493 provides: “Order in the nature of prerogative writs. Any court having cognizance of writs of habeas corpus, mandamus, quo warranto, prohibition or ne exeat may, in any action pending before it, make any order, interlocutory or final, in the nature of any such writ, to the extent of its jurisdiction, so far as it may appear to be an appropriate form of relief.”
The petitioner, a college graduate who apparently also attended law school, represented himself at the second trial. The petitioner’s pro se status at that trial is not an issue in this appeal.
The claims raised by the petitioner in connection with his direct appeal to the Appellate Court are not a subject of this appeal.
The petitioner filed petitions for certification to appeal to this court from the judgment of the Appellate Court, which were denied. State v. Connelly, 244 Conn. 907, 908, 713 A.2d 829 (1998). Thereafter, the petitioner filed a petition for a writ of certiorari to the United States Supreme Court, which also was denied. Connelly v. Connecticut, 525 U.S. 907, 119 S. Ct. 245, 142 L. Ed. 2d 201 (1998).
Judge Corrigan granted the petitioner’s petition for certification to appeal to the Appellate Court from the judgment of the habeas court dismissing the petitioner's petition for a writ of habeas corpus.
The petitioner, who represented himself before the habeas court, also represents himself on appeal.
Although the petitioner also alleges a due process violation under article first, § 8, of the constitution of Connecticut, he has not provided any independent analysis of that, claim. We, therefore, confine our analysis to his claim under the federal constitution. See, e.g., State v. Schiappa, 248 Conn. 132, 136-37 n.9, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999).
The state asserted in the habeas court that the petitioner was not entitled to review of his judicial vindic.1 iveness claim because he had failed to establish sufficient reason why he did not raise that claim in his direct appeal from the judgment of conviction. See Jackson v. Commissioner of Correction, 227 Conn. 124, 131, 629 A.2d 413 (1993) (in collateral attack on conviction, petitioner must establish cause for failure to raise claim on direct appeal and actual prejudice). The habeas court, however, rejected the petitioner’s claim of judicial vindictiveness on the merits without addressing the issue of procedural default. The state renews its claim of procedural default on appeal, essentially as an alternative ground for affirmance. In light of our determination that Judge Corrigan properly rejected the petitioner’s claim of judicial vindictiveness on the merits, we need not consider the state’s claim of procedural default.
The United States Supreme Court provided the following explanation in support of its conclusion: “Even when the same judge imposes both sentences, the relevant sentencing information available to the judge after the plea will usually be considerably less than that available after a trial. A guilty plea must be both voluntary and intelligent . . . because it is the defendant’s admission in open court that he committed the acts charged in the indictment .... But the sort of information which satisfies this requirement will usually be far less than that brought out in a full trial on the merits.
“As this case demonstrates ... in the course of the proof at trial the judge may gather a fuller appreciation of the nature and extent of the crimes charged. The defendant’s conduct during trial may give the judge insights into his moral character and suitability for rehabilitation. . . . Finally, after trial, the factors that may have indicated leniency as consideration for the guilty plea are no longer present. ... In [such] cases . . . [therefore, the court] think[s] there are enough justifications for a heavier second sentence that it cannot be said to be more likely than not that a judge who imposes one is motivated by vindictiveness.” (Citations omitted; internal quotation marks omitted.) Alabama v. Smith, supra, 490 U.S. 801-802.
In Coleman, we invoked our “supervisory authority [over the administration of justice] to require trial courts to explain, upon request by a defendant, their reasons for imposing a greater sentence after trial than previously had been imposed under the terms of a plea agreement.” (Emphasis added.) State v. Coleman, supra, 242 Conn. 542. This requirement applies even when the two sentences are imposed by different judges, as in the present case. See id. The petitioner, who did not request such an explanation from the trial court, makes no claim that he is entitled to a new sentencing hearing under the rule that we adopted in Coleman.
In Texas v. McCullough, supra, 475 U.S. 134, the defendant was tried before a jury and convicted of murder. Id., 135. In accordance with Texas law, the defendant elected to be sentenced by the jury, which imposed a term of imprisonment of twenty years. Id., 135-36. Thereafter, however, the trial judge granted the defendant’s motion for a new trial on the ground of prosecutorial misconduct. Id., 136. The defendant was retried before a jury, and the same judge who had presided over the defendant’s first trial also presided at the retrial. Id. The second jury also found the defendant guilty of murder, and this time the defendant requested that the judge determine his sentence. Id. The judge imposed a term of imprisonment of fifty years. Id. In response to the defendant’s postconviction motion, the judge explained why the sentence that she imposed was longer than that set by the jury in the first trial. Id. In particular, the judge stated that she had been influenced by the testimony of two witnesses who had not testified at the first trial, and, in addition, that she had learned, for the first time on retrial, that the defendant had been released from prison only four months prior to committing the murder for which he had been convicted. Id. Finally, the judge acknowledged that, if she had sentenced the defendant after his first trial, she would have imposed a term of more than twenty years imprisonment. Id. On appeal, the Texas Court of Criminal Appeals concluded that the Pearce presumption applied and resentenced the defendant to twenty years imprisonment. Id. On appeal to the United States Supreme Court, that court concluded that, because the twenty year and fifty year sentences were imposed by two different sentencing authorities, “there was no realistic motive for vindictive sentencing [and, consequently] the Pearce presumption was inappropriate.” Id., 139. In concluding that a presumption of vindictiveness was unwarranted, the court added: “[T]he second sentencer provides an on-the-record, wholly logical, nonvindictive reason for the sentence. We read Pearce to require no more, particularly since trial judges must be accorded broad discretion in sentencing . . . .” Id., 140.
We note that, in Pearce, the judge who imposed sentence after retrial was not the same judge who had imposed sentence after the first trial. See Texas v. McCullough, supra, 475 U.S. 140 n.3. In McCullough, however, the United States Supreme Court expressly rejected the contention that, on the basis of the court’s holding in Pearce, a presumption of vindictiveness is created in such circumstances: “Pearce itself apparently involved different judges presiding over the two trials, a fact that has led some courts to conclude by implication that the presumption of vindictiveness applies even where different sentencing judges are involved. See, e.g., United States v. Hawthorne, 532 F.2d 318, 323 [3d Cir.], cert. denied, 429 U.S. 894 [97 S. Ct. 254, 50 L. Ed. 2d 177] (1976). That fact, however, may not have been drawn to the Court’s attention and does not appear anywhere in the Court’s opinion
We note that it is undisputed that the petitioner does not believe that he suffers from a mental illness and that he consistently has refused treatment for that illness.
Indeed, one of the petitioner’s brothers appeared at the sentencing hearing and personally advised Judge Scheinblum that he was fearful of the petitioner and would relocate upon the petitioner’s release from custody.
We note that, in light of these facts, the petitioner could not prevail even if the Pearce presumption did apply to the facts of the present case. The United States Supreme Court has held that, when the Pearce presumption applies, “a sentencing authority may justify an increased sentence by affirmatively identifying relevant conduct or events that occurred subsequent to the original sentencing proceedings.” Wasman v. United States, supra, 468 U.S. 572. During the five year period from the date of his commitment to Whiting until the date of his sentencing by Judge Scheinblum, the petitioner consistently had refused to acknowledge or accept treatment for a serious mental illness that causes him to be a danger to others. This fact alone
We acknowledge that the petitioner’s forty year sentence is a lengthy one. We note, however, that both the prosecutor and the senior probation officer who prepared the presentence investigation report for Judge Scheinblum recommended that the petitioner receive a sentence of fifty years, the statutory maximum. Moreover, on direct appeal, the Appellate Court rejected the petitioner’s claim that his sentence was excessive, concluding that the forty year prison term was within the limits fixed by statute for the offenses of which the petitioner was found guilty and did not constitute an abuse of discretion. See State v. Connelly, supra, 46 Conn. App. 503-504. The. Appellate Court also noted that “a petition for sentence review . . . is the appropriate vehicle by which to have [his] claim evaluated.” (Internal quotation marks omitted.) Id., 504.
Thereafter, the petitioner filed an application for a reduction in his sentence with the sentence review division of the Superior Court. The sentence review division denied the petitioner’s application. In concluding that the petitioner’s sentence was not excessive, the sentence review division explained: “[The] [petitioner was convicted of serious felony charges involving the shooting of two innocent hostages. The maximum sentence which could be imposed for these violations was fifty years in prison. The prime index of the gravity of a particular crime is the length of the statutorily authorized prison sentence that a defendant convicted of the crime may be required to serve. . . . The officer who prepared the presentence investigation [report] recommended a fifty year sentence.
“At the time of the sentencing, [the] petitioner made a concerted effort, to convince the court that he was not a threat to anyone and that he was an excellent candidate for rehabilitation. The record clearly indicates, however, that at sentencing, [the] petitioner still clung to his conspiracy theory and maintained that the victims were at fault. He has never shown any remorse for his criminal conduct, but has attempted to give reasons for the crime[s], [The] [petitioner indicated that he would not cooperate*394 with any type of psychiatric help and resisted any recommitment to Whiting. [On the basis of these facts, the] petitioner confused a need for psychiatric treatment with a finding of competency. Under the circumstances the court could clearly determine that petitioner was, in fact, a threat to the public and his former victims.”
We also note that the petitioner, on direct appeal from the judgment of conviction, had claimed that Judge Scheinblum was biased against him. The Appellate Court rejected that claim, however, concluding that its “thorough review of the record [did] not reveal any bias of the court.” State v. Connelly, supra, 46 Conn. App. 506.