David Dominy v. Commissioner of Correction (2012)

MEMORANDUM OF DECISION:  RESPONDENT'S MOTION FOR SUMMARY JUDGMENT (# 110.00)

I. Procedural History

The petitioner, David Dominy, was the defendant in several matters pending in the New Haven Judicial District.   On May 28, 2009 the petitioner pleaded guilty under the following docket numbers and received the following sentences:  CR08–248724, one count of Burglary 2nd Degree, General Statutes § 53a–102(a)(2), as a persistent serious felony offender pursuant to Part B information under General Statutes § 53a–40(c), 20 years incarceration, suspended after 10 years, followed by 5 years probation;  CR08–247955, CR08–249806 and CR08–243018, one count of Burglary 3rd Degree each, General Statutes § 53a–103, 5 years incarceration on each;  CR08–247881, one count of Larceny 3rd Degree, General Statutes § 53a–124, 5 years incarceration;  one count of Violation of Probation each, General Statutes § 53a–32 under CR03–219018, 3 1/2 years incarceration, CR04–170360, 2 years incarceration, CR04–225734, 3 1/2 years incarceration, and CR07–244118, 1 year incarceration.   All sentences ran concurrently to each other, for a total effective sentence of 20 years, suspended after 10 years incarceration, followed by 5 years probation.   An initial petition for writ of habeas corpus was filed on October 1, 2009, and a two-count amended petition was subsequently filed on or about August 1, 2011.   The amended petition claims in count one that the petitioner was illegally sentenced as a persistent offender under CR08–248724, because he did not legally qualify to be charged under the particular section used, and count two claims that the petitioner's trial counsel provided ineffective assistance of counsel for allowing the petitioner to be sentenced as a persistent offender under the section used.   The respondent filed a return and special defenses on August 15, 2011.   The pleadings were closed on September 30, 2011, and the respondent filed the instant Motion for Summary Judgment and supporting memorandum of law on the same date.   An objection and supporting memorandum was filed by the petitioner on October 18, 2011, and a reply memorandum was filed by the respondent on October 28, 2011.

II. Law

The respondent claims that there is no issue of material fact that the petitioner was legally eligible and, therefore, properly sentenced as a persistent serious felony offender pursuant to General Statutes § 53a–40(c).¹  In a habeas corpus matter, “[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.”  Practice Book § 23–37;  See, also Practice Book § 17–44.   Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way ․ To succeed on a motion for summary judgment, [t]he movant must show 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 ․ [A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party ․” (Alterations in original;  citations omitted;  quotation marks omitted.)  Dugan v. Mobile Medical Testing Ser., 265 Conn. 791, 815, 830 A.2d 752 (2003).

“A material fact is a fact that will make a difference in the result of the case.”  Farrel v. Twenty–First Century Ins. Co., 118 Conn.App. 757, 759, 985 A.2d 1076 (2010), aff'd, 301 Conn. 657, 21 A.3d 816 (2011).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ․ of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle [the movant] to judgment as a matter of law.   The courts hold the movant to a strict standard ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving 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 ․ It is not enough for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court ․” (Citation omitted;  quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318–19, 901 A.2d 1207 (2006).  “[T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment ․ [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  (Alterations in original;  citation omitted;  quotation marks omitted.)  Roy v. Bachmann, 121 Conn.App. 220, 223, 994 A.2d 676 (2010).

The respondent has submitted copies of numerous sentencing documents and a sentencing transcript to support its motion.   What those documents show is that on May 28, 2009, the petitioner entered guilty pleas to, among other charges, Burglary 2nd Degree, General Statutes § 53a–102(a)(2), under Docket No. CR08–248724, and to a Part B of the information under the same docket number charging him with being a persistent serious felony offender pursuant to General Statutes § 53a–40(c).  The Part B information indicates that the qualifying prior felony conviction was a Burglary 3rd conviction under Docket No. CR04–225734 out of the Meriden Superior Court in May 2008 where the petitioner was sentenced to serve 5 years, suspended after 18 months, followed by 5 years probation, and the respondent has also submitted documentary evidence to support the validity of this conviction.   Pursuant to the plea agreement, the petitioner was sentenced on the Burglary 2nd conviction, with the Part B enhancement, to 20 years, suspended after 10 years incarceration, followed by 5 years probation.

General Statutes § 53a–40(c) provides, in pertinent part:

A persistent serious felony offender is a person who (1) stands convicted of a felony, and (2) has been, prior to the commission of the present felony, convicted of and imprisoned under an imposed term of more than one year or death, in this state or in any other state ․ for a crime.

In the present case, the petitioner “stands convicted” of Burglary 2nd Degree, which is a class C felony, and “prior to the commission” of the Burglary 2nd Degree, had been “convicted and imprisoned ․ term of more than one year” for the 2008 Burglary 3rd conviction.   Therefore, the petitioner was legally eligible to be treated as a persistent serious felony offender at the time of the instant conviction for Burglary 2nd Degree.  General Statutes § 53a–40(c).  As to sentencing, once a person has been found guilty of being a persistent serious felony offender under § 53a–40(c), General Statutes § 53a–40(j) provides:

When any person has been found to be a persistent serious felony offender, the court in lieu of imposing the sentence of imprisonment authorized by section 53a–35 for the crime of which such person presently stands convicted, or authorized by section 53a–35a if the crime of which such person presently stands convicted was committed on or after July 1, 1981, may impose the sentence of imprisonment authorized by said section for the next more serious degree of felony.

In this matter, the petitioner's present conviction was for Burglary 2 Degree, which is a Class C felony.  General Statutes § 53a–35a(7).   The “next more serious degree of felony,” therefore, would be a Class B felony, for which a maximum prison sentence of up to 20 years is authorized.  General Statutes § 53a–35a(6).   Additionally, a probation period of up to five years is authorized for a Class B felony conviction.  General Statutes § 53a–29(d).  Therefore, the petitioner's sentence of 20 years, suspended after 10 years of incarceration, followed by 5 years of probation in the present case was a legal sentence.

The respondent claims that the court's use of the words “persistent offender,” instead of “persistent serious felony offender,” when addressing the petitioner during the plea canvass means that the only possible statute that could have been “activated” was the “persistent felony offender” statute, General Statutes § 53a–40(f), which the petitioner claims he was not legally eligible to be convicted under, because he did not have the two prior predicate felony convictions required.   First, the petitioner's argument wholly ignores the written plea documents, namely the Part B information, submitted by the respondent.   Secondly, other than his assertions, the petitioner has failed to present any documentary evidence or legal authority to support his claim or to controvert the evidence submitted by the respondent.  “Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court ․” (Citation omitted;  quotation marks omitted.)  Zielinski v. Kotsoris, supra, 279 Conn. 318–19.

III. Conclusion

In the present case, the respondent has established that there is no issue of material fact that the petitioner was properly charged and sentenced as a persistent serious felony offender pursuant to General Statutes § 53a–40(c).  Based on the foregoing, therefore, the respondent's motion for summary judgment as to Counts One and Two is GRANTED.

Should the petitioner desire to appeal, counsel shall submit a judgment file to the clerk's office within thirty (30) days.

Hon. John M. Newson

FOOTNOTES

FN1. It should be noted that it is not the petitioner's claim anywhere in his pleadings that he was sentenced in violation of what he bargained for in the plea agreement, but only that he was not legally eligible to be charged or sentenced under a particular persistent offender statute..  FN1. It should be noted that it is not the petitioner's claim anywhere in his pleadings that he was sentenced in violation of what he bargained for in the plea agreement, but only that he was not legally eligible to be charged or sentenced under a particular persistent offender statute.

Newson, John M., J.