79814 v. Warden, State Prison (2012)

MEMORANDUM OF DECISION

The petitioner was the defendant in a criminal case in the judicial district of Hartford under docket number CR98–161267.   After a jury trial, at which he was represented by Attorney Michael Isko, the petitioner was found guilty of attempted sexual assault in the first degree in violation of General Statutes §§ 53a–49(a)(2) and 53a–70(a)(1), kidnapping in the first degree in violation of General Statutes § 53a–92(a)(2)(A), assault in the second degree in violation of General Statutes § 53a–60(a)(1), and following a plea of nolo contendere, of being a persistent dangerous felony offender under General Statutes (Rev. to 1997) § 53a–40(a).

The following facts, taken from the Supreme Court's decision on the petitioner's direct appeal, could reasonably have been found by the jury:  “On the evening of April 21, 1998, the [petitioner] visited the victim at her apartment in Manchester.   During the course of the night, the [petitioner] and the victim consumed several beers and smoked crack cocaine.   At some point prior to midnight, the victim consented to oral sex from the [petitioner].   At approximately 1 a.m., Larry Brown, a neighbor, visited the victim in her apartment while the [petitioner] was still there.   Outside the presence of the victim, the [petitioner] asked Brown to leave because he wanted to be alone with the victim.   Brown complied with the [petitioner's] request.   At the time Brown left, he did not observe any marks on the victim's face.

“Shortly after Brown's departure, the [petitioner] and the victim were seated next to each other on the couch.   The [petitioner] proceeded to pull the victim to the floor and remove her pants and underpants.   While they were on the floor, the [petitioner] forced the victim's legs apart in an extremely harsh manner and began manually choking her to the point where she could no longer breathe.   The [petitioner] then got up and moved toward the bathroom, at which time the victim ran screaming from her apartment, naked from the waist down, to a convenience store across the street where the police were summoned.

“Officer Edward Ciolkosz, of the Manchester police department, arrived at the convenience store at approximately 2:30 a.m. The victim was quite distraught at this time and displayed visible facial and neck injuries.   The victim could not confirm that the [petitioner] actually struck her in the facial area.   The testimony presented at trial, however, revealed that the [petitioner] was the only person in the victim's company between 1 a.m., when, according to Brown's testimony, he did not recall seeing any physical injuries, and 2:30 a.m., when the police and other witnesses observed the victim's condition.   Further, the testimony of Arkady Katsnelson, an associate state medical examiner, revealed that the victim's injuries were consistent with manual strangulation.   Ciolkosz subsequently escorted the victim back to her apartment, which was found to be unoccupied.”  State v. Luurtsema, 262 Conn. 179, 183–84, 811 A.2d 223 (2002).

Following his conviction, the trial court sentenced the petitioner to a total effective sentence of forty-five years imprisonment.¹  The petitioner, represented by Attorney Glenn Talk, unsuccessfully appealed his conviction in State v. Luurtsema, supra, 262 Conn. 197.

The petitioner commenced the present action by filing a petition for a writ of habeas corpus on August 22, 2008.   In his pro se petition, the petitioner claimed that his conviction of kidnapping in the first degree and of being a persistent felony offender should be reversed in light of the Supreme Court's new interpretation of the kidnapping statutes in State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), and 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, superseded in part after reconsideration by State v. Sanseverino, 291 Conn. 574, 969 A.2d 710 (2009).²  On September 11, 2008, the habeas court, Nazzaro, J., issued an order setting the matter down for a hearing to show cause why the petition should not be granted.   On November 21, 2008, on the joint stipulation of the parties, the habeas court, Nazzaro, J., reserved the following questions for the advice of the Appellate Court pursuant to Practice Book § 73–1:(1) whether Salamon and Sanseverino apply retroactively in habeas corpus proceedings and (2) whether those cases apply in the petitioner's case in particular.   Thereafter, the reserved questions were transferred to the Supreme Court, which answered them in the affirmative.   See Luurtsema v. Commissioner of Correction, 299 Conn. 740, 12 A.3d 817 (2011).

Following the Supreme Court's decision on the reserved questions, the petitioner amended his petition on September 30, 2011 and October 24, 2011.   The respondent filed an amended return on November 28, 2011, generally denying the allegations and leaving the petitioner to his proof.   The respondent also raised the special defense of procedural default as to claims two through nine.   The matter came before this Court for trial on December 5, 2011, where the petitioner withdrew counts two through six and 8 through ten, and went forward only on counts two, seven and eleven.   Attorney Isko (hereinafter, “defense counsel” or “trial counsel”), Attorney Falk (hereinafter, “appellate counsel”), and Attorney David Derosa, an expert in the practice of appellate advocacy, testified.   The parties entered into evidence transcripts of the petitioner's criminal trial, the judgment file, the petitioner's mittimus and copies of two post-trial motions filed by Attorney Isko.

During closing argument, and although the respondent conceded that the petition should be granted as to the kidnapping charge and the matter remanded for a new trial, the respondent asserted that the petitioner had failed to make any specific allegations or prayers for relief in his complaint relating to the Part B conviction for being a persistent dangerous felony offender under General Statutes (Rev. to 1997) § 53a–40(a).   The petitioner, on the other hand, argued that, since the Part B conviction was based solely the kidnapping conviction that, notwithstanding the conviction occurred at a separate subsequent proceeding to the petitioner's criminal trial, the Part B conviction cannot legally survive if the kidnapping sentence is vacated.   Alternatively, the petitioner made an oral motion for permission to amend the petition to include the claim relating to the Part B conviction.   After hearing oral argument on the matter, the court ordered the petitioner to file any request to amend the petition along with supporting legal authority by January 5, 2012, and ordered the respondent to file any responsive pleading by February 3, 2012.   The petitioner's proposed third amended petition and supporting memorandum of law were received on January 6, 2012.³  As of today's date, the respondent has not filed any responsive pleading.

“Under the statutes and rules of practice, the court may in its discretion, in a proper case, allow the filing of amendments to pleadings before, during and after trial.”  (Internal quotation marks omitted.)  Mastrolillo v. Danbury, 61 Conn.App. 693, 696, 767 A.2d 1232 (2001);  accord Saphir v. Neustadt, 177 Conn. 191, 206, 413 A.2d 843 (1979) (“a trial court may allow, in its discretion, an amendment to pleadings before, during, or ․ after trial to conform to the proof”).   Pursuant to Practice Book § 23–32, “[f]ollowing the return, any pleading may be amended with leave of the judicial authority for good cause.”   The petitioner's proposed amendments conform his allegations to the proof presented at trial.   This constitutes good cause for amending the petition.   See Practice Book § 10–62.⁴  Accordingly, this Court accepts the petitioner's proposed amended petition, especially in light of the fact that the respondent was given the opportunity to object but did not.   See Practice Book § 10–60.⁵

In this most recently amended petition, the petitioner alleges that:  (i) his convictions for kidnapping (claim one) and as a persistent dangerous felony offender (claim two) should be reversed, (ii) his conviction for assault in the second degree should be reversed because there is insufficient evidence to support the conviction (count three), and (iii) his appellate counsel rendered ineffective assistance (count four).

CLAIM ONE KIDNAPPING IN THE FIRST DEGREE

In counts one and two, the petitioner claims that his conviction for kidnapping as a persistent dangerous felony offender should be reversed following the Supreme Court's affirmative answers to the reserved questions, i.e., that its decisions in Salamon and Sanseverino apply in habeas corpus proceedings and that they specifically apply in the petitioner's habeas corpus case.⁶  In her pretrial brief, and at oral argument following trial, the respondent conceded that the petitioner's conviction for kidnapping should be vacated and referred back to the trial court for a new trial.   In light of this concession, it is not necessary for this Court to further address the petitioner's claim as to this conviction on the merits, and the petition for writ of habeas corpus as to that charge is granted.   The petitioner's conviction for kidnapping in the first degree is ordered vacated, and the matter is ordered returned to the trial court for a new trial, or other proceedings consistent with this decision.

CLAIM TWO—PERSISTENT DANGEROUS FELONY OFFENDER, GENERAL STATUTES § 53A–40(a)

Notwithstanding the concession regarding the kidnapping charge, it is the respondent's position that the petitioner's persistent dangerous felony conviction should not also automatically be reversed and vacated, because that conviction resulted from a wholly separate legal proceeding.   The petitioner countered that his status as a persistent dangerous felony offender should be reversed because it is legally and factually tied to his kidnapping conviction.⁷

Our Supreme Court “has recognized that the persistent felony offender statute is a sentence enhancement provision, and not an independent criminal offense ․ Indeed, [t]he only function of the separate judicial proceeding on the defendant's status as a persistent dangerous [or serious] felon is to permit an enhanced sentence for conviction of the underlying substantive crime.”  (Alterations in original;  citations omitted;  internal quotation marks omitted.)  State v. Michael A., 297 Conn. 808, 821, 1 A.3d 46 (2010);  see also State v. McElveen, 117 Conn.App. 486, 491–92, 979 A.2d 604 (2009) (finding that a defendant is a persistent offender under General Statutes § 53a–40 is not a “conviction,” the only legal consequence is the enhanced sentence that can be imposed, therefore, once that sentence has been vacated, there is no other practical relief a defendant can be given).   “Because the defendant's persistent offender status is dependent on his conviction of [the underlying requisite offense(s) ], which we are reversing, we must reverse the determination that the defendant is a persistent felony offender as well.”  State v. Deptula, 31 Conn.App. 140, 149, 623 A.2d 525, cert. granted, 226 Conn. 911, 628 A.2d 984 (1993), appeal dismissed, 228 Conn. 852, 635 A.2d 812 (1994).⁸

The petitioner's status as a persistent dangerous felony offender in the present case is inextricably tied to his kidnapping conviction.   The petitioner pleaded nolo contendere to being a persistent dangerous felony offender based on the fact that he had been convicted of kidnapping in the first degree.⁹  As a result of the petitioner's plea, the trial court sentenced the petitioner to an enhanced penalty of forty years on the kidnapping conviction.¹⁰  Because the respondent has conceded that the petitioner's underlying kidnapping conviction should be vacated and remanded for a new trial, the same must necessarily occur to the finding that the petitioner is a persistent dangerous felony offender.  State v. Deptula, supra, 31 Conn.App. 149.   According to the Appellate Court's decision in McElveen, however, there is no practical relief this Court can provide to the petitioner beyond vacating his enhanced sentence, the only legal consequence of his plea to being a persistent dangerous felony offender.   Nonetheless, to the extent possible, and so this Court's intention is absolutely clear, the petitioner's plea of nolo contendere to being a persistent dangerous felony offender is vacated, the determination that the petitioner is a persistent dangerous felony offender is reversed, and the matter is remanded to the trial court for proceedings consistent with this decision.  State v. Deptula, supra, 31 Conn.App. 149.

CLAIM THREE—INSUFFICIENT EVIDENCE TO SUPPORT ASSAULT SECOND DEGREE CONVICTION

In claim three of his third amended petition, the petitioner claims that his conviction for assault in the second degree should be reversed because there is insufficient evidence to support it.   In her amended return, the respondent raised the defense of procedural default as to this claim on the ground that the petitioner did not raise it on direct appeal.¹¹  In his reply, the petitioner alleged that the ineffective assistance of his appellate counsel constituted cause and prejudice for his failure to pursue this claim on direct appeal.

“Once the respondent has raised the defense of procedural default in the return, the burden is on the petitioner to prove cause and prejudice.”   Zabian v. Commissioner of Correction, 115 Conn.App. 144, 152, 971 A.2d 822 (2009).  “[T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance.”  (Internal quotation marks omitted.)  Chaparro v. Commissioner of Correction, 120 Conn.App. 41, 48, 990 A.2d 1261, cert. denied, 297 Conn. 903, 994 A.2d 1287 (2010).   “[A]ttorney error short of ineffective assistance of counsel does not adequately excuse compliance with our rules of ․ procedure.”  (Internal quotation marks omitted.)  Crawford v. Commissioner of Correction, 294 Conn. 165, 194, 982 A.2d 620 (2009).

The petitioner did not raise an insufficiency of the evidence claim as to his assault in the second degree conviction on appeal.   Thus, this claim is subject to procedural default.   In his reply to the respondent's return, the petitioner alleged ineffective assistance of appellate counsel as cause and prejudice for the procedural default.   As discussed below, the petitioner has failed to prove that appellate counsel rendered ineffective assistance by failing to raise the insufficiency of the evidence claim on appeal.   Accordingly, the claim is procedurally defaulted and will not be directly reviewed by this Court.  Id.

CLAIM FOUR—INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

In count four of his latest amended petition, the petitioner alleges that his appellate counsel rendered ineffective assistance by failing to raise a claim on appeal challenging the petitioner's conviction for assault in the second degree on grounds of insufficiency of the evidence.¹²  “A criminal defendant's right to the effective assistance of counsel ․ is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution ․ To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).  Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong.   To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed ․ by the [s]ixth [a]mendment ․ To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different ․ The claim will succeed only if both prongs are satisfied ․ It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Small v. Commissioner of Correction, 286 Conn. 707, 712–13, 946 A.2d 1203, cert. denied, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).  “Moreover, when a petitioner is claiming ineffective assistance of appellate counsel, he must establish that there is a reasonable probability that but for appellate counsel's error, the petitioner would have prevailed in his direct appeal.”  (Internal quotation marks omitted.)  Turner v. Commissioner of Correction, 118 Conn.App. 565, 568, 984 A.2d 793 (2009), cert. denied, 296 Conn. 901, 991 A.2d 1104 (2010).

Attorney Falk, the petitioner's former appellate counsel, testified at the habeas trial that he would not have disregarded a claim of insufficiency of the evidence and that he generally chooses to raise claims on appeal likely to have the greatest impact for the defendant.   For example, in the petitioner's case, if he had been successful on appeal in challenging the statement that he gave to the police, he would have been entitled to a new trial on all the charges.   Additionally, if he had been successful in challenging his conviction for kidnapping, he could have eliminated his forty-year sentence on that charge.   Admittedly, having only used half of the number of brief pages allowable on appeal, Attorney Falk could have raised a claim regarding the sufficiency of the evidence in support of the petitioner's conviction of assault in the second degree but, as he testified, it is not advantageous to raise every conceivable claim on appeal.   Attorney Falk testified that in the petitioner's case he raised those claims that he believed were likely to receive a “better” response from the Appellate Court.

Attorney Derosa, the petitioner's expert in appellate practice, testified at the habeas trial, that if the client has specific issues he or she desires to be raised on appeal and if he has room in his brief, he will generally raise those claims.   Additionally, he opined that a claim of insufficiency of the evidence regarding the petitioner's conviction for assault in the second degree should have been raised on direct appeal.   On cross examination, however, he admitted that while he has raised sufficiency of the evidence claims on appeal, none have ever been found meritorious.

The petitioner in the present case has failed to meet his burden in demonstrating that Attorney Falk rendered ineffective assistance by failing to raise a claim on appeal that there was insufficient evidence to support the petitioner's conviction for assault in the second degree.   First, the petitioner has failed to show that Attorney Falk's performance was deficient.   Strickland v. Washington, supra, 466 U.S. 687.  “The determination of which issues to present, and which issues not to present, on an appeal is by its nature a determination committed to the expertise of appellate counsel, and not to his client ․ By that determination, appellate counsel seeks to focus the concern of the appellate court on those issues which he deems to be most persuasive, and thus does appellate counsel most effectively present his client's appeal.”  (Citation omitted.)  Valeriano v. Bronson, 12 Conn.App. 385, 390, 530 A.2d 1100 (1987), aff'd, 209 Conn. 75, 546 A.2d 1380 (1988).   “[A] habeas court will not, with the benefit of hind-sight, second guess the tactical decisions of appellate counsel.   Legal contentions, like the currency, depreciate through over-issue ․ [M]ultiplying assignments will dilute and weaken a good case and will not save a bad one ․ The effect of adding weak arguments will be to dilute the force of the stronger ones.”  (Internal quotation marks omitted.)  Farnum v. Commissioner of Correction, 118 Conn.App. 670, 679, 984 A.2d 1126 (2009), cert. denied, 295 Conn. 905, 989 A.2d 119 (2010).   Attorney Falk testified that he raised those claims that he believed were most likely to prevail on appeal, and this court will not second guess his tactical decisions.  Id.

Alternatively, the petitioner has also failed to demonstrate prejudice—that there is a reasonable probability that he would have prevailed on appeal had Attorney Falk raised a claim of insufficiency of the evidence.   It is telling that the petitioner's own expert admitted that he has never had an insufficiency of the evidence claim prevail on appeal.  “The standard of review employed in a sufficiency of the evidence claim is well settled.  [W]e apply a two part test.   First, we construe the evidence in the light most favorable to sustaining the verdict.   Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.”  (Internal quotation marks omitted.)   State v. Ingram, 132 Conn.App. 385, 390–91, 31 A.3d 835 (2011), cert. denied, 303 Conn. 932, 36 A.3d 694 (2012).

“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 ․” General Statutes § 53a–60(a)(1).   “ ‘Serious physical injury’ means physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ.”   General Statutes § 53a–3(4).  “ ‘Physical injury’ means impairment of physical condition or pain.”  General Statutes § 53a–3(3).

The petitioner claims that there is insufficient evidence that he caused the victim “serious physical injury.”   Specifically, he claims that the state only presented evidence of superficial injuries suffered by the victim and that Dr. Katsnelson's testimony that the act of strangulation can give rise to a substantial risk of death is not the equivalent of evidence that the physical injuries sustained by the victim as a result of the act of manual strangulation gave rise to a substantial risk of death.   That is, argues the petitioner, strangulation is an act not an injury.   He also claims that the passage of General Statutes § 53a–64bb, strangulation in the second degree, in 2007 shows that the legislature did not intend for manual strangulation to constitute a conviction for assault in the second degree or for the act of manual strangulation to constitute a physical injury that creates a substantial risk of death.

At the petitioner's criminal trial, the victim testified that the petitioner pulled her onto the floor, spread her legs apart violently and choked her.   She testified that she had her clothes on prior to being pulled to the floor and that at some point the petitioner must have removed her pants and underpants.   She could not remember how the petitioner got her clothes off:  “I don't recall how he took my pants off.   I don't know whether it is because he was choking me or, you know, what blanked me out.” ¹³  She had a bump on her head but similarly could not remember how it got there.   She further testified that the petitioner choked her to the point where she “couldn't breathe at all.” ¹⁴  The victim did not seek medical treatment after the incident.   However, the police took photos of her immediately following the incident, which were published to the jury.   Additionally, several witnesses testified that they saw the victim shortly after the incident and observed scratches on her neck and face, a bump on her forehead and broken blood vessels in both of her eyes.¹⁵  Dr. Katsnelson testified that the photos of the victim showed that she had areas of hemorrhage on her neck and extensive petechial hemorrhages on her face and in the white of her eyes, all of which he opined were consistent with the victim having been manually strangled.¹⁶

Construing the above evidence in the light most favorable to sustaining the verdict, a jury could reasonably have found the petitioner guilty of assault in the second degree.   Based on the evidence presented and the inferences reasonably drawn therefrom, the jury could have reasonably found that the petitioner choked the victim, which caused her to lose consciousness or at the very least, impaired her breathing and the delivery of oxygenated blood to her brain.  “[T]he term ‘serious physical injury’ does not require that the injury be permanent ․ We also have stated that a victim's complete recovery is of no consequence ․” (Citations omitted.)  State v. Barretta, 82 Conn.App. 684, 689–90, 846 A.2d 946, cert. denied, 270 Conn. 905, 853 A.2d 522 (2004).   “[A] loss of consciousness, however brief, may constitute a serious physical injury as contemplated by § 53a–3(4).”  State v. Atkinson, 46 Conn.Sup. 130, 146, 741 A.2d 991 (1999) (“[i]t may be inferred that a loss of consciousness has been caused by a serious impairment of a bodily organ, through an impairment of the function of the brain, known by common experience to be an organ of the body requiring the use of oxygen to sustain its operation and activity”), citing State v. Rumore, 28 Conn.App. 402, 414, 613 A.2d 1328, cert. denied, 224 Conn. 906, 615 A.2d 1049 (1992).   In short, the jury could have reasonably found that by choking the victim, the petitioner caused injuries—loss of consciousness and/or ability to breathe—that created a substantial risk of death.

The petitioner claims, however, that the victim did not lose consciousness by pointing to her testimony in which she states, after having estimated how long the incident lasted and upon being asked whether she had a watch on:  “No. But, you know, as I was still conscious, and I still, I remember the whole thing, so.” ¹⁷  In addition to this testimony, however, as noted above, the victim testified that she could not remember how the petitioner got her clothes off or how she got a bump on her forehead, and that she “blanked out” at some point.   “[E]vidence is not insufficient ․ because it is conflicting or inconsistent ․ It is the [jury's] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses ․ The [jury] can ․ decide what—all, none, or some—of a witness' testimony to accept or reject.”  (Internal quotation marks omitted.)  State v. Vega, 128 Conn.App. 20, 27, 17 A.3d 1060 (2011).   Accordingly, the petitioner's contention that the victim did not lose consciousness is unavailing.

Similarly, the petitioner's assertion that the legislature did not intend for manual strangulation to constitute assault in the second degree is unavailing.   What is important is that it is clear that the legislature did intend to criminalize the conduct at issue.   The fact that it later chose to criminalize it under a different label is of no consequence.   The strangulation statute itself further belies the petitioner's contention, as it allows a person to be charged and prosecuted, though not convicted, upon the same incident of both strangulation and assault.   See General Statutes § 53a–64bb(b) (“[n]o person shall be found guilty of strangulation in the second degree and unlawful restraint or assault upon the same incident, but such person may be charged and prosecuted for all three offenses upon the same information”).

CONCLUSION

Based on the foregoing, the petition for a writ of habeas corpus is granted in part and denied in part.   The petition is GRANTED in as to claims one and two.   The petitioner's kidnapping in the first degree conviction and his plea of nolo contendere to being a persistent dangerous felony offender as a result of his kidnapping conviction are vacated, and the sentence imposed thereon is hereby vacated.   The matter is referred back to the trial court for further proceedings.   The petition is DENIED as to the petitioner's remaining claims.

If any party wishes to appeal the court's ruling, counsel shall prepare and submit a judgment file to the clerk within thirty (30) days.

BY THE COURT,

Hon. John M. Newson

FOOTNOTES

FN1. The trial court sentenced the petitioner to twenty years imprisonment for attempted sexual assault in the first degree, forty years imprisonment for kidnapping in the first degree as a persistent dangerous felony offender and five years imprisonment for assault in the second degree.   The trial court imposed the twenty- and forty-year sentences concurrent to each other and the five-year sentence consecutive to them..  FN1. The trial court sentenced the petitioner to twenty years imprisonment for attempted sexual assault in the first degree, forty years imprisonment for kidnapping in the first degree as a persistent dangerous felony offender and five years imprisonment for assault in the second degree.   The trial court imposed the twenty- and forty-year sentences concurrent to each other and the five-year sentence consecutive to them.

FN2. “In those cases, [the Supreme Court] concluded that General Statutes § 53a–92(a)(2)(A) [the kidnapping statute] does not impose liability for the crime of kidnapping where the restraint used is merely incidental to the commission of another offense.”  Luurtsema v. Commissioner of Correction, 299 Conn. 740, 12 A.3d 817 (2011)..  FN2. “In those cases, [the Supreme Court] concluded that General Statutes § 53a–92(a)(2)(A) [the kidnapping statute] does not impose liability for the crime of kidnapping where the restraint used is merely incidental to the commission of another offense.”  Luurtsema v. Commissioner of Correction, 299 Conn. 740, 12 A.3d 817 (2011).

FN3. The petitioner's documents were actually fax filed at 4:59 pm on January 5, 2012, but because of the late hour, were not able to be stamped in by the clerk until 8:35 am the following day..  FN3. The petitioner's documents were actually fax filed at 4:59 pm on January 5, 2012, but because of the late hour, were not able to be stamped in by the clerk until 8:35 am the following day.

FN4. Practice Book § 10–62 provides, in relevant part:  “In all cases of any material variance between allegation and proof, an amendment may be permitted at any stage of the trial.”.  FN4. Practice Book § 10–62 provides, in relevant part:  “In all cases of any material variance between allegation and proof, an amendment may be permitted at any stage of the trial.”

FN5. Practice Book § 10–60 provides, in relevant part:  “(a) ․ a party may amend his or her pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section ․ in the following manner ․ (3) by filing a request for leave to file such amendment, with the amendment appended, after service upon each party ․ If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party ․”.  FN5. Practice Book § 10–60 provides, in relevant part:  “(a) ․ a party may amend his or her pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section ․ in the following manner ․ (3) by filing a request for leave to file such amendment, with the amendment appended, after service upon each party ․ If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party ․”

FN6. The petitioner moved for summary judgment shortly before trial on these claims.   Based on the respondent's concessions that the petitioner is entitled to a new trial on the kidnapping charge, and the court's decision regarding the persistent dangerous felony offender conviction, however, the motion for summary judgment is moot..  FN6. The petitioner moved for summary judgment shortly before trial on these claims.   Based on the respondent's concessions that the petitioner is entitled to a new trial on the kidnapping charge, and the court's decision regarding the persistent dangerous felony offender conviction, however, the motion for summary judgment is moot.

FN7. As stated previously, the Court gave both the parties an opportunity to address this issue in post-trial briefs, however, a post-trial brief was only received from the petitioner..  FN7. As stated previously, the Court gave both the parties an opportunity to address this issue in post-trial briefs, however, a post-trial brief was only received from the petitioner.

FN8. The State's appeal was originally granted solely on the issue of whether there was sufficient evidence for the defendant's request for a self-defense instruction to have been given.   After reviewing the trial record and considering the briefs and arguments by the parties, however, the court determined that the appeal had been improvidently granted..  FN8. The State's appeal was originally granted solely on the issue of whether there was sufficient evidence for the defendant's request for a self-defense instruction to have been given.   After reviewing the trial record and considering the briefs and arguments by the parties, however, the court determined that the appeal had been improvidently granted.

FN9. The state provided the following factual basis for the petitioner's plea to being a persistent dangerous felony offender:  ‘The facts are, your Honor, that first of all, the jury just returned verdicts of guilty for attempted sexual assault first degree, kidnapping first degree, and assault second degree ․ Now, kidnapping is an enumerated crime for the Connecticut General Statute that was just cited by the clerk, that is, 53a–40(a), since the defendant was convicted of one of the enumerated crimes and on a prior occasion the defendant was convicted of and imprisoned for more than one year in this state correctional system for crimes enumerated in 53a–40(a)(1) ․ On or about September 12, 1978 ․ the defendant was convicted of and sentenced for four felonies ․” (Emphasis added.)   Respondent's Exhibit A, Trial Transcript of February 17, 2000, pp. 9–10..  FN9. The state provided the following factual basis for the petitioner's plea to being a persistent dangerous felony offender:  ‘The facts are, your Honor, that first of all, the jury just returned verdicts of guilty for attempted sexual assault first degree, kidnapping first degree, and assault second degree ․ Now, kidnapping is an enumerated crime for the Connecticut General Statute that was just cited by the clerk, that is, 53a–40(a), since the defendant was convicted of one of the enumerated crimes and on a prior occasion the defendant was convicted of and imprisoned for more than one year in this state correctional system for crimes enumerated in 53a–40(a)(1) ․ On or about September 12, 1978 ․ the defendant was convicted of and sentenced for four felonies ․” (Emphasis added.)   Respondent's Exhibit A, Trial Transcript of February 17, 2000, pp. 9–10.

FN10. At the petitioner's sentencing, the trial court explained that “under the Part B information ․ the kidnapping is enhanced, so to speak, or at least increased to a maximum of 40 years ․ So that it's the Court's intention in imposing the sentence ․ under the kidnapping count, which is count two ․ and also under the Part B information, persistent dangerous felony offender, which would increase the penalty, the maximum penalty I should say, under count two to a maximum of 40 years.”  (Emphasis added.)   Respondent's Exhibit A, Trial Transcript of April 14, 2000, pp. 46–47..  FN10. At the petitioner's sentencing, the trial court explained that “under the Part B information ․ the kidnapping is enhanced, so to speak, or at least increased to a maximum of 40 years ․ So that it's the Court's intention in imposing the sentence ․ under the kidnapping count, which is count two ․ and also under the Part B information, persistent dangerous felony offender, which would increase the penalty, the maximum penalty I should say, under count two to a maximum of 40 years.”  (Emphasis added.)   Respondent's Exhibit A, Trial Transcript of April 14, 2000, pp. 46–47.

FN11. As noted previously, this Court has accepted the petitioner's post-trial amendments to his petition.   The respondent did not file another amended return, so this Court will apply the respondent's last amended return to the petitioner's present petition as far as possible pursuant to Practice Book § 10–61 (“[w]hen any pleading is amended ․ [i]f the adverse party fails to plead further, pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleading”)..  FN11. As noted previously, this Court has accepted the petitioner's post-trial amendments to his petition.   The respondent did not file another amended return, so this Court will apply the respondent's last amended return to the petitioner's present petition as far as possible pursuant to Practice Book § 10–61 (“[w]hen any pleading is amended ․ [i]f the adverse party fails to plead further, pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleading”).

FN12. The petitioner also alleges that his appellate counsel rendered ineffective assistance by failing to challenge the petitioner's conviction for kidnapping in the first degree as being void for vagueness.   The petitioner presented no evidence on this claim.   Accordingly, this Court deems it to have been abandoned..  FN12. The petitioner also alleges that his appellate counsel rendered ineffective assistance by failing to challenge the petitioner's conviction for kidnapping in the first degree as being void for vagueness.   The petitioner presented no evidence on this claim.   Accordingly, this Court deems it to have been abandoned.

FN13. Respondent's Exhibit A, Trial Transcript, February 7, 2000, pp. 102–03..  FN13. Respondent's Exhibit A, Trial Transcript, February 7, 2000, pp. 102–03.

FN14. Respondent's Exbibit A, Trial Transcript, February 7, 2000, p. 106..  FN14. Respondent's Exbibit A, Trial Transcript, February 7, 2000, p. 106.

FN15. Respondent's Exhibit A, Trial Transcript, February 7, 2000, pp. 38–45, 61–63..  FN15. Respondent's Exhibit A, Trial Transcript, February 7, 2000, pp. 38–45, 61–63.

FN16. Respondent's Exhibit A, Trial Transcript, February 14, 2000, pp. 16–17..  FN16. Respondent's Exhibit A, Trial Transcript, February 14, 2000, pp. 16–17.

FN17. Respondent's Exhibit.   Trial Transcript, February 7, 2000, p. 107..  FN17. Respondent's Exhibit.   Trial Transcript, February 7, 2000, p. 107.

Newson, John M., J.