346185 v. Warden, State Prison (2010)

MEMORANDUM OF DECISION RE PETITIONER'S MOTION FOR SUMMARY JUDGMENT (# 117.00)

The petitioner, Brix Sanchez, initiated this matter by way of a petition for a writ of habeas corpus filed on May 6, 2008 and amended for the second time on December 9, 2008.   In the underlying criminal case, the petitioner was charged with one count of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2) and two counts of risk of injury to a minor in violation of General Statutes § 53-21(a)(1) and (2).   On May 17, 2006, the petitioner pleaded guilty to one count of risk of injury to a minor in violation of General Statutes § 53-21(a)(2).   He received a sentence of eight years, suspended after eighteen months, followed by ten years of probation.   Attorney Howard Ehring represented the petitioner throughout these proceedings.   In his amended petition, the petitioner alleges that his conviction is illegal because (1) the police did not inform him of his constitutional rights prior to arresting and interrogating him, (2) he did not voluntarily plead guilty, (3) the trial court did not properly canvass him prior to accepting his guilty plea and (4) he was denied the effective assistance of trial counsel.   The respondent filed a return denying the material allegations of the petition and raising the affirmative defense of procedural default.

On January 12, 2009, the petitioner, through counsel, filed a motion for summary judgment as to the entire petition.   In support of the motion, counsel filed a memorandum of law, a copy of the amended petition, a copy of the return, an affidavit of the petitioner and an affidavit of the petitioner's mother, Cynthia Sanchez.   Attached to the petitioner's affidavit is a copy of (1) a letter concerning his enrollment at Greenwich High School following his arrest, (2) a speech and language evaluation report on him dated December 14, 2005, (3) the transcript of his arraignment, (4) the transcript of his plea hearing and (5) the transcript of his sentencing hearing.   On January 27, 2009, the respondent filed an objection to the petitioner's motion for summary judgment.   In support of the objection, on March 6, 2009, the respondent filed an affidavit of Attorney Ehring.   Attached to the Attorney Ehring's affidavit is a copy of (1) the victims' statement to the police, (2) the petitioner's statement to the police, (3) the long-form information lodged against the petitioner, (4) an authorization to incur expenses for a psychosexual and psychosocial evaluation of the petitioner, (5) a bill for professional services, (6) a parental consent form signed by the petitioner's mother allowing the Greenwich police to question and take a statement from the petitioner, (7) a consent to search the petitioner's home signed by the petitioner's mother, (8) a court update from the department of children and families regarding whether the petitioner needed a residential placement and (9) a psychosexual evaluation addendum.

The parties appeared before this court on March 11, 2009 for argument on the petitioner's motion for summary judgment.   The petitioner appeared by video on that date.   Thereafter, on July 30, 2010, the parties appeared before this court by telephone conference for re-argument on the motion.   The petitioner did not appear at that time.¹

DISCUSSION

Pursuant to Practice Book § 23-37, “[a]t 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.”

“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.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the [nonmovant] ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).   In ruling on a motion for summary judgment, “[the court's] function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  (Internal quotation marks omitted.)  Roy v. Bachmann, 121 Conn.App. 220, 223, 994 A.2d 676 (2010).

Having reviewed the petitioner's motion for summary judgment and the evidence submitted in support thereof, this court finds that the petitioner has not met his burden in establishing the nonexistence of any issue of fact.   There are genuine issues of fact regarding the petitioner's claims, including but not limited to, Attorney Ehring's performance and the voluntariness of the petitioner's statement to the police and of his guilty plea.   For example, although the petitioner swears in his affidavit that he has a limited understanding of English and that he had only a vague understanding of the questions posed to him by the trial court during the plea canvass, the transcript of the plea canvass and the speech and language evaluation report attached to the petitioner's affidavit suggest otherwise.²  Similarly, although the petitioner and his mother imply, in their respective affidavits, that Attorney Ehring led them to believe that the petitioner would not serve any jail time, in his affidavit, Attorney Ehring avers that “[the petitioner] was informed of the CAP offer of resolution and the possible range of sentences he could receive.”   These factual issues as well as the others presented by the petition should be resolved at trial.   Accordingly, the petitioner's motion for summary judgment is denied.

BY THE COURT,

Nazzaro, J.

FOOTNOTES

FN1. During the telephone conference, the respondent represented to this court that the petitioner was deported to the Philippines, his native country, on April 27, 2009.   The petitioner's counsel had no official knowledge of his deportation.   The petitioner's alleged deportation is irrelevant to the motion presently pending before this court.   Accordingly, this court will not address the impact, if any, it has on the case..  FN1. During the telephone conference, the respondent represented to this court that the petitioner was deported to the Philippines, his native country, on April 27, 2009.   The petitioner's counsel had no official knowledge of his deportation.   The petitioner's alleged deportation is irrelevant to the motion presently pending before this court.   Accordingly, this court will not address the impact, if any, it has on the case.

FN2. Even though the speech and language report indicates that the petitioner has some language difficulties likely to impact his ability to learn, it states that “[he] is fluent in English.”.  FN2. Even though the speech and language report indicates that the petitioner has some language difficulties likely to impact his ability to learn, it states that “[he] is fluent in English.”

Nazzaro, John J., J.