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*********************************************** 
JERMAINE LITTLE v. COMMISSIONER

OF CORRECTION

(AC 38597)

Lavine, Alvord and Beach, Js.

Syllabus

The petitioner, who had been convicted, on a plea of guilty, of the crime

of kidnapping in the first degree, sought a writ of habeas corpus, claiming, inter alia, that his plea was invalid because, at the time he pleaded

guilty, he was not aware of the additional element of intent, which was

enunciated by our Supreme Court in State v. Salamon (287 Conn. 509)

four years after his conviction. Specifically, he claimed that he did

not know or understand that, as set forth in Salamon, to be guilty of

kidnapping in the first degree, he had to intend to prevent the victim’s

liberation for a longer period of time or to a greater degree than that

which was necessary to commit a separate crime. At trial, the petitioner

had pleaded guilty to kidnapping pursuant to a negotiated plea

agreement, after which the state nolled charges against him of burglary

in the first degree and robbery in the first degree. The habeas court

rendered judgment denying the habeas petition in part and, thereafter,

denied the petition for certification to appeal, and the petitioner appealed

to this court. On appeal, he claimed that Salamon should be applied

retroactively to his case because there is no differentiation between a

conviction obtained after a trial or by way of a guilty plea, and there

was a risk that his conviction did not comport with the due process

requirements for guilty pleas. Held:

1. The habeas court abused its discretion in denying the petition for certification to appeal as to the petitioner’s claim that Salamon should apply

retroactively to his conviction; the impact of Salamon on collateral

attacks on final judgments in cases in which the petitioner pleaded

guilty to only the crime of kidnapping has not yet been addressed by

any appellate court of this state and, thus, the question raised by the

petitioner was adequate to deserve encouragement to proceed further,

and this court resolved that issue in a manner different from the way

it was resolved by the habeas court.

2. The petitioner could not prevail on his claim that his guilty plea violated

his right to due process and, thus, was invalid because it was not made

knowingly, intelligently and voluntarily in light of the reinterpretation

in Salamon of the kidnapping statutes: because there was no binding

precedent as to whether Salamon should be applied retroactively to

collateral attacks on a kidnapping conviction when the defendant

pleaded guilty to only that charge pursuant to a plea agreement, in

deciding that issue this court adopted the rule and reasoning of the

plurality opinion in Luurtsema v. Commissioner of Correction (299

Conn. 740), which adopted a general presumption that Salamon applies

retroactively in habeas corpus proceedings, but left open the possibility

that there could be situations in which the traditional rationales underlying the writ of habeas corpus may not favor retroactive application;

moreover, traditional rationales underlying the writ of habeas corpus

did not favor applying Salamon retroactively in the present case, as

there was no risk that the petitioner stood convicted of an act that the

law did not make criminal or that he faced a punishment that the law

could not impose on him, and the state relied sufficiently to its detriment

on our Supreme Court’s interpretation of our kidnapping statutes prior to

Salamon when constructing the terms of the petitioner’s plea agreement

such that applying Salamon retroactively in the present case would

be inappropriate.

3. The petitioner’s claim that, because his guilty plea was invalid and his

conviction had to be vacated, he was entitled to the presumption of

innocence and, thus, was actually innocent of the kidnapping charge,

was not reviewable; although the petitioner raised a claim in his second

habeas petition that he was actually innocent of the kidnapping charge

because he did not intend to prevent the victim’s liberation for a longer

period of time or to a greater degree than that which was necessary to
commit a separate crime, his petition for certification to appeal raised

only a generic claim that he was actually innocent, and the claim on

appeal was never distinctly raised before the habeas court, which, therefore, could not have ruled on it in a manner adverse to the petitioner.

Argued May 30—officially released October 17, 2017

Procedural History

Amended petition for a writ of habeas corpus,

brought to the Superior Court in the judicial district

of Tolland and tried to the court, Fuger, J.; judgment

denying the petition in part; thereafter, the court denied

the petition for certification to appeal, and the petitioner appealed to this court. Affirmed.

Naomi T. Fetterman, assigned counsel, for the appellant (petitioner).

Rita M. Shair, senior assistant state’s attorney, with

whom were Kevin D. Lawlor, state’s attorney, and, on

the brief, Jo Anne Sulik, supervisory assistant state’s

attorney, for the appellee (respondent).
Opinion

ALVORD, J. The petitioner, Jermaine Little, appeals

following the denial of his petition for certification to

appeal from the judgment of the habeas court denying

his second petition for a writ of habeas corpus (second

habeas petition). He claims that the habeas court (1)

abused its discretion by denying his petition for certification to appeal; (2) improperly concluded that his

guilty plea to kidnapping in the first degree was knowing, intelligent, and voluntary in light of our Supreme

Court’s subsequent reinterpretation of our kidnapping

statutes in State v. Salamon, 287 Conn. 509, 949 A.2d

1092 (2008); and (3) improperly concluded that he was

not actually innocent of kidnapping in the first degree.

We conclude that the habeas court abused its discretion

by denying the petition for certification to appeal, but

that the habeas court properly denied the petitioner’s

second habeas petition. Accordingly, we affirm the judgment of the habeas court.

The following factual and procedural history is relevant to this appeal. On September 9, 2003, the petitioner

and three other men abducted the victim, Jerry Brown,

at gunpoint as he left his business in Bridgeport. Little

v. Warden, Superior Court, judicial district of Tolland,

Docket No. CV-06-4000949-S, 2008 WL 4415754, *1 (September 15, 2008) (Little I). The men drove up to Brown

in a white Mazda minivan. Id. Three of the men exited

the minivan, forced Brown into his own car, and

demanded his money, threatening to kill him if he did

not comply. Id. When Brown said that his money was

at his house, they drove with Brown to his house in

Shelton. Id. While en route, the minivan pulled alongside

Brown’s car, and the driver motioned the men in

Brown’s car to call him, which they did, using Brown’s

cell phone. Id. When they arrived at Brown’s house, the

men removed approximately $25,000 to $28,000 in cash,

checks, and jewelry from the safe in his bedroom. Id.

Brown reported the incident to the police, provided

a written statement describing the events and his abductors, and identified the petitioner from a photographic

array as the driver of the minivan and the fourth person

to enter his house. Id., *3 and n.1. The subsequent investigation revealed that the phone number that Brown’s

abductors had called with his phone while driving to

his house was the petitioner’s phone number and that

the petitioner was known to drive a white Mazda minivan. Id., *3. Detectives then interviewed the petitioner

concerning his involvement in the Brown abduction

and robbery. In a signed incident report, Detective Richard S. Yeomans reported that the petitioner ‘‘admitted

to being involved in the [k]idnapping and [r]obbery

. . . . He stated [Kyle] Glenn, [James] Freelove, and

[Kevin] Harrison went into the house with Brown while

he waited outside in his vehicle.’’ Yeomans further

reported that Freelove had ‘‘admitted to being involved
with the kidnapping and robbery of Jerry Brown in

Shelton. He further stated Jermaine Little, Kevin Harrison and Isaac Peoples were the other participants in

the kidnapping and robbery. Freelove stated he and

Harrison were in Beardsley Terrace when Little pulled

up to them and asked if they wanted to do a ‘job’ with

him. Freelove stated Little then went [to] pick up Peoples. . . . Peoples and Little were armed with semi

automatic handguns.’’ Freelove explained that, after

they abducted Brown, he, Harrison and Peoples drove

with Brown in Brown’s car while the petitioner followed

them in his van. Freelove ‘‘stated when they arrived at

Brown’s house they all went into the house including

Little.’’

The petitioner subsequently was charged in state

court with kidnapping in the first degree in violation

of General Statutes § 53a-92 (a) (2) (B),1 burglary in the

first degree in violation of General Statutes § 53a-101,

and robbery in the first degree in violation of General

Statutes § 53a-134 (state case).2 The petitioner was further charged in federal court with being a felon in possession of a firearm in violation of 18 U.S.C. § 922 (g)

(1) (federal case).3 Little v. United States, Docket No.

3:05-CV-1674 (MRK), 2006 WL 2361723, *1 (D. Conn.

August 15, 2006). During this time, the petitioner also

had an ongoing state narcotics case, for which he

received a sentence of eight years of imprisonment

while the state and federal cases remained pending.

Although ‘‘[t]he petitioner initially pleaded not guilty

and consistently exhibited an intent to take the case to

trial’’; Little I, supra, 2008 WL 4415754, *2; he ultimately

decided to plead guilty pursuant to separate written plea

agreements with the state and the federal government.

Under the terms of those agreements, the petitioner

agreed to plead guilty to kidnapping in the first degree

in the state case and to being a felon in possession of

a firearm in the federal case. In exchange, the state and

the federal government agreed to recommend to their

respective sentencing courts a sentence of fifteen years

and eight months of imprisonment, and to request that

the state and federal sentences run concurrently. The

parties further agreed that it would be left to the discretion of the sentencing courts whether to run those sentences concurrently with or consecutively to the eight

year sentence that the petitioner had begun serving in

the narcotics case.

On November 29, 2004, the petitioner pleaded guilty

in federal court to being a felon in possession of a

firearm. Little v. United States, supra, 2006 WL 2361723,

*1. On December 22, 2004, the petitioner pleaded guilty

to kidnapping in the first degree. At the beginning of

the plea hearing, the prosecutor informed the court,

Carroll, J., that the petitioner was pleading guilty pursuant to a written plea agreement, and she briefly

explained the terms of that agreement. The prosecutor
then informed the court that ‘‘counsel is telling me [that

the petitioner] again is making clear he wishes to reject

the state’s offer. And if that’s so, I’m just going to ask

that the court make full inquiry so that we don’t later

have a collateral proceeding claiming that his lawyer

didn’t inform him or that he wasn’t aware of these

things.’’ The prosecutor expressed her surprise that the

petitioner would repudiate the plea agreement. She

observed that the petitioner was currently exposed to

a maximum term of imprisonment of sixty-five years

in the state case, that his sentencing exposure would

increase if the state charged him with conspiracy,4 and

that, if the petitioner rejected the plea agreement, the

state could seek a sentence of more than fifteen years

and eight months imprisonment.

The court briefly canvassed the petitioner to ensure

that he understood the terms of his plea agreement,

that he did not have to plead guilty, and that it was his

decision alone whether to plead guilty. After discussing

the matter with trial counsel, the petitioner represented,

through trial counsel, that he was ready to plead guilty.

The petitioner pleaded guilty to kidnapping in the first

degree,5 and the prosecutor recited the factual basis

for the guilty plea6 and reiterated the terms of the

plea agreement.

The court next canvassed the petitioner to ensure

that his plea was knowing, intelligent, and voluntary.

During this canvass, the petitioner confirmed, inter alia,

that he understood the terms of his plea agreement; he

had had enough time to speak with his attorney about

the case; his attorney had explained to him the nature

and elements of kidnapping in the first degree; his attorney had reviewed with him all of the state’s evidence

against him; the prosecutor’s recitation of the facts supporting his guilty plea was ‘‘essentially correct’’; nobody

was threatening or forcing him to plead guilty; and he

was voluntarily pleading guilty because he was in fact

guilty. The court found that the petitioner’s plea was

knowing, intelligent, and voluntary and accepted it.

The petitioner was subsequently sentenced, in accordance with the terms of his plea agreement, to fifteen

years and eight months of imprisonment in the state

case and the federal case, and those sentences were run

concurrently with each other and with the petitioner’s

sentence in the narcotics case. The prosecutor in the

state case further indicated at the sentencing hearing

that she had entered a nolle prosequi with respect to

the petitioner’s remaining charges of burglary in the

first degree and robbery in the first degree.

On February 3, 2006, the petitioner filed his first petition for a writ of habeas corpus (first habeas petition),

in which he alleged various claims of ineffective assistance of trial counsel.

On July 1, 2008, while the first habeas petition
remained pending, our Supreme Court decided State v.

Salamon, supra, 287 Conn. 517–18, 531, 542, in which

it abrogated thirty years of kidnapping jurisprudence.

Specifically, the court held for the first time that to

convict a defendant of a kidnapping in conjunction with

another crime, the state must prove that the defendant

‘‘intend[ed] to prevent the victim’s liberation for a

longer period of time or to a greater degree than that

which is necessary to commit the other crime.’’ Id., 542.

On September 15, 2008, the first habeas court, A.

Santos, J., denied the first habeas petition. Little I,

supra, 2008 WL 4415754, *1. The first habeas court,

in part, rejected the petitioner’s claims of ineffective

assistance of counsel because it concluded that, even

if it presumed that trial counsel rendered deficient performance during the pleading process, the petitioner

failed to prove prejudice. Id., *3. The first habeas court

observed: ‘‘The evidence clearly reveals that the petitioner was present, with a firearm, in Brown’s home

when the robbery took place. It also reveals that the

petitioner drove the rest of the kidnappers to Brown’s

workplace to set up the kidnapping and robbery. . . .

In the absence of any compelling contrary evidence,

this court cannot say that the petitioner would have

been likely to be successful had he chosen to go to

trial. Furthermore, the petitioner faced additional

charges and, if he had chosen to go to trial, would have

been exposed to a total possible sentence of sixty-five

years. It is highly unlikely that he would have obtained

a more favorable result than the fifteen years and eight

months he received under the plea agreement. There

would also be no guarantee that the sentence would

be set up to run concurrently with the federal sentence

he faced, as the plea agreement provided. . . . While

it is clear that the petitioner had previously expressed

a desire to go to trial, the record also reveals that he

made the decision to accept the state’s plea offer knowingly, intelligently and voluntarily.’’ (Citations omitted.)

Id., *3–4.

On February 22, 2013, the petitioner initiated this

second habeas action. On June 9, 2015, the petitioner

filed the operative habeas petition. In relevant part, the

petitioner alleged in count one that his guilty plea was

not knowing, intelligent, and voluntary because ‘‘he did

not know or understand that in order to be convicted

of kidnapping in the first degree under § 53a-92 (a) (2)

(B), a criminal defendant needed to intend to restrain

the victim for a longer period of time or to a greater

degree than that which was necessary to commit or

advance the commission of a separate felony’’ (due

process claim). In count four, the petitioner alleged

that he was actually innocent of kidnapping in the first

degree because he ‘‘did not intend to prevent the victim’s liberation for a longer period of time or to a greater

degree than that which was necessary to commit a

separate crime’’ (actual innocence claim).
On May 2, 2016, a one day trial was held. After hearing

the evidence and argument from the parties, the habeas

court, Fuger, J., issued an oral ruling denying the second habeas petition as it pertained to the petitioner’s

due process and actual innocence claims.7 Little v. Warden, Superior Court, judicial district of Tolland, Docket

No. CV-13-4005250-S, 2016 WL 2935514, *3 (May 2, 2016)

(Little II). On October 29, 2015, the habeas court denied

the petition for certification to appeal. This appeal

followed.

I

The petitioner first claims that the habeas court

abused its discretion when it denied his petition for

certification to appeal. We agree.

‘‘In Simms v. Warden, 229 Conn. 178, 187, 640 A.2d

601 (1994), [our Supreme Court] concluded that . . .

[General Statutes] § 52-470 (b) prevents a reviewing

court from hearing the merits of a habeas appeal following the denial of certification to appeal unless the petitioner establishes that the denial of certification

constituted an abuse of discretion by the habeas court.

In Simms v. Warden, 230 Conn. 608, 615–16, 646 A.2d

126 (1994), [our Supreme Court] incorporated the factors adopted by the United States Supreme Court in

Lozada v. Deeds, 498 U.S. 430, 431–32, 111 S. Ct. 860,

112 L. Ed. 2d 956 (1991), as the appropriate standard

for determining whether the habeas court abused its

discretion in denying certification to appeal. This standard requires the petitioner to demonstrate that the

issues are debatable among jurists of reason; that a

court could resolve the issues [in a different manner];

or that the questions are adequate to deserve encouragement to proceed further. . . . A petitioner who establishes an abuse of discretion through one of the factors

listed above must then demonstrate that the judgment

of the habeas court should be reversed on its merits.

. . . In determining whether the habeas court abused

its discretion in denying the petitioner’s request for

certification, we necessarily must consider the merits of

the petitioner’s underlying claims to determine whether

the habeas court reasonably determined that the petitioner’s appeal was frivolous. . . .

‘‘The conclusions reached by the trial court in its

decision to dismiss [a] habeas petition are matters of

law, subject to plenary review. . . . [When] the legal

conclusions of the court are challenged, [the reviewing

court] must determine whether they are legally and

logically correct . . . and whether they find support

in the facts that appear in the record. . . . To the extent

that factual findings are challenged, this court cannot

disturb the underlying facts found by the habeas court

unless they are clearly erroneous . . . . [A] finding of

fact is clearly erroneous when there is no evidence in

the record to support it . . . or when although there
is evidence to support it, the reviewing court on the

entire evidence is left with the definite and firm conviction that a mistake has been committed.’’ (Citations

omitted; emphasis omitted; internal quotation marks

omitted.) Brewer v. Commissioner of Correction, 162

Conn. App. 8, 12–13, 130 A.3d 882 (2015).

Turning to the petitioner’s substantive claims, we

have been unable to locate any case in which either

this court or our Supreme Court has addressed the

impact of Salamon on collateral attacks on final judgments rendered in cases in which the petitioner pleaded

guilty to kidnapping.8 Because such a question has not

yet been addressed by any appellate court of this state,

we conclude that the petitioner’s claims are adequate

to deserve encouragement to proceed further. See

Rodriguez v. Commissioner of Correction, 131 Conn.

App. 336, 347, 27 A.3d 404 (2011) (concluding that claim

deserved encouragement to proceed further when no

appellate case had decided precise issue), aff’d on other

grounds, 312 Conn. 345, 92 A.3d 944 (2014); Small v.

Commissioner of Correction, 98 Conn. App. 389, 391–

92, 909 A.2d 533 (2006), aff’d, 286 Conn. 707, 946 A.2d

1203, cert. denied sub nom. Small v. Lantz, 555 U.S.

975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008). We further

conclude that the habeas court abused its discretion

by denying the petition for certification to appeal

because we have resolved the issues raised by the petitioner in his second habeas petition in a different manner than the habeas court did. Accordingly, the habeas

court abused its discretion when it denied the petition

for certification to appeal. Nonetheless, we affirm the

denial of the second habeas petition on the merits.

II

We next address the petitioner’s due process claim.

The petitioner claims that his guilty plea is invalid

because the record does not demonstrate that at the

time he pleaded guilty he understood that to be guilty

of kidnapping in the first degree he had to ‘‘intend to

prevent the victim’s liberation for a longer period of

time or to a greater degree than that which is necessary

to commit the other crime.’’ (Emphasis omitted; internal

quotation marks omitted.)

The petitioner is correct that a guilty plea cannot be

considered voluntary in the constitutional sense if the

record reflects that a defendant did not receive ‘‘real

notice of the true nature of the charge against him

. . . .’’ (Internal quotation marks omitted.) State v.

Johnson, 253 Conn. 1, 38, 751 A.2d 298 (2000); accord

Henderson v. Morgan, 426 U.S. 637, 645 n.13, 96 S. Ct.

2253, 49 L. Ed. 2d 108 (1976) (‘‘A plea may be involuntary

either because the accused does not understand the

nature of the constitutional protections that he is waiving . . . or because he has such an incomplete understanding of the charge that his plea cannot stand as an

intelligent admission of guilt. Without adequate notice
of the nature of the charge against him, or proof that

he in fact understood the charge, the plea cannot be

voluntary in this latter sense.’’ [Citation omitted.]).

Stated another way, if the record reveals that neither

the petitioner, nor his counsel, nor the court correctly

understood the essential elements of kidnapping in the

first degree at the time that the petitioner pleaded guilty,

the petitioner’s guilty plea would be constitutionally

invalid. See Bousley v. United States, 523 U.S. 614, 618,

118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998). Moreover,

because the accused’s clear understanding of the nature

of the charge to which he is pleading guilty relates

to the very heart of the protections afforded by the

constitution, such a misunderstanding of the nature of

the charge cannot be harmless. United State v. Bradley,

381 F.3d 641, 647 (7th Cir. 2004); see Henderson v.

Morgan, supra, 644–45 (even if ‘‘the prosecutor had

overwhelming evidence of guilt available’’ and trial

counsel’s advice to plead guilty was sound and wise,

‘‘[the defendant’s] plea cannot support a judgment of

guilt unless it was voluntary in a constitutional sense’’);

see also Bousley v. United States, supra, 618 (‘‘[w]e

have long held that a plea does not qualify as intelligent

unless a criminal defendant first receives ‘real notice

of the true nature of the charge against him, the first

and most universally recognized requirement of due

process’ ’’); State v. Childree, 189 Conn. 114, 119, 454

A.2d 1274 (1983) (‘‘[i]t is axiomatic that unless a plea

of guilty is made knowingly and voluntarily, it has been

obtained in violation of due process and is therefore

voidable’’).

The petitioner’s due process claim depends, however,

on whether Salamon applies retroactively in his case.9

That is, the only reason that the petitioner contends

his guilty plea is invalid is because he was not aware

of the additional element of intent enunciated by our

Supreme Court in Salamon, four years after his conviction was rendered final. As a result, if we conclude that

Salamon does not apply retroactively in the petitioner’s

case, his due process claim necessarily fails as well.

To address this retroactivity issue, it is necessary to

review the unusual history and evolution of our kidnapping jurisprudence. ‘‘Under our Penal Code, the hallmark of a kidnapping is an abduction, a term that is

defined by incorporating and building upon the definition of restraint. . . . In 1977, this court squarely

rejected a claim that, when the abduction and restraint

of a victim are merely incidental to some other offense,

such as sexual assault, that conduct cannot form the

basis of a guilty verdict on a charge of kidnapping. See

State v. Chetcuti, 173 Conn. 165, 170–71, 377 A.2d 263

(1977). The court pointed to the fact that our legislature

had declined to merge the offense of kidnapping with

sexual assault or with any other felony, as well as its

clearly manifested intent in the kidnapping statutes not

to impose any time requirement for the restraint or
any distance requirement for the asportation. Id. On

numerous occasions between that decision and the present petitioner’s criminal trial, this court reiterated that

position. . . . The court appeared to leave open the

possibility that there could be a factual situation in

which the asportation or restraint was so miniscule that

a conviction of kidnapping would constitute an absurd

and unconscionable result that would render the statute

unconstitutionally vague as applied. . . . A kidnapping

conviction predicated on the movement of the sexual

assault victim from one room in her apartment to

another, however, was deemed not to constitute such

a result.’’ (Citations omitted.) Hinds v. Commissioner

of Correction, 321 Conn. 56, 66–68, 136 A.3d 596 (2016).

In State v. Luurtsema, 262 Conn. 179, 203–204, 811

A.2d 223 (2002) (Luurtsema I), overruled in part by

State v. Salamon, 287 Conn. 509, 513–14, 949 A.2d 1092

(2008), decided two years before the petitioner pleaded

guilty, our Supreme Court foreclosed the possibility

that there could be a factual situation in which the

movement or restraint of the victim was so miniscule

that a conviction of kidnapping would constitute an

absurd and unconscionable result as a matter of statutory interpretation.10 In that case, the defendant, Peter

Luurtsema, was convicted after a jury trial of kidnapping in the first degree, incidental to an attempted sexual assault and assault, during which he had moved the

victim from a couch to the floor, forced the victim’s

legs apart, and manually choked her while attempting

to perpetrate the sexual assault. Id., 200, 203. On direct

appeal, Luurtsema argued that his movement of the

victim was ‘‘ ‘incidental’ ’’ to the sexual assault and

therefore ‘‘falls short of what is required for ‘abduction’

under the kidnapping statute.’’ Luurtsema I, supra, 200.

Our Supreme Court rejected Luurtsema’s claim, stating

that ‘‘[Luurtsema’s] interpretation of the kidnapping

statute is simply not the law in this state.’’ Id., 202.

The court reiterated that ‘‘all that is required under the

statute is that the defendant have abducted the victim

and restrained her with the requisite intent. . . . Under

the aforementioned definitions [of abduct and restrain],

the abduction requirement is satisfied when the defendant restrains the victim with the intent to prevent her

liberation through the use of physical force.’’ (Citation

omitted.) Id., 201.

Six years later, in Salamon, our Supreme Court revisited and reversed this decades long kidnapping jurisprudence. After examining the common law of kidnapping,

the history and circumstances surrounding the promulgation of our current kidnapping statutes and the policy

objectives animating those statutes, the court concluded: ‘‘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.’’

State v. Salamon, supra, 287 Conn. 542. As a result, the

court held that to convict a defendant of a kidnapping

that was perpetrated in conjunction with another crime,

the state must prove that the defendant ‘‘intend[ed] to

prevent the victim’s liberation for a longer period of

time or to a greater degree than that which is necessary

to commit the other crime.’’ Id.

Following that decision, Luurtsema filed a habeas

petition, challenging the legality of his kidnapping conviction. Luurtsema v. Commissioner of Correction, 299

Conn. 740, 743, 12 A.3d 817 (2011) (Luurtsema II).

Pursuant to the joint stipulation of the parties, the

habeas court reserved two questions of law to this

court, which were subsequently transferred to our

Supreme Court: ‘‘(1) whether Salamon and Sanseverino11 apply retroactively in habeas corpus proceedings;

and (2) whether those cases apply in the petitioner’s

case in particular.’’ (Footnote added.) Id. In a plurality

opinion, our Supreme Court answered both reserved

questions in the affirmative. Id.

When deciding the retroactivity issue, the threshold

question for our Supreme Court was whether Salamon

represented a change in or a mere clarification of the

law. Id., 749 n.11. ‘‘If a state court deems its new interpretation to be a change, then the application of the

statute to persons who were convicted prior to the

adoption of the new rule would be decided as a matter

of state retroactivity common law. . . . By contrast, if

the court deems the new interpretation to be a mere

clarification of what the law always has meant, then

there is no issue of retroactivity per se. . . . Rather,

the issue becomes whether the state has violated the

petitioner’s due process rights by convicting him under

an incorrect interpretation of the law.’’ (Citations omitted.) Id., 749–50 n.11.

The three justice plurality declined to address ‘‘the

thorny question of whether [Salamon] represented the

sort of clarification of the law for which the federal

constitution requires collateral relief’’; (emphasis in

original) id., 751; by assuming that Salamon constituted

a change in the law and deciding the retroactivity question as a matter of state common law. Id., 764 n.21. The

plurality then rejected any per se rule of full retroactivity; id., 760; and, instead, adopted ‘‘a general presumption in favor of full retroactivity for judicial decisions

that narrow the scope of liability of a criminal statute.’’

Id., 764. The plurality cautioned that this general presumption ‘‘would not necessarily require that relief be

granted in cases where continued incarceration would

not represent a gross miscarriage of justice, such as

where it is clear that the legislature did intend to crimi-
nalize the conduct at issue, if perhaps not under the

precise label charged. In situations where the criminal

justice system has relied on a prior interpretation of

the law so that providing retroactive relief would give

the petitioner an undeserved windfall, the traditional

rationales underlying the writ of habeas corpus may

not favor full retroactivity.’’ Id. The plurality observed

that ‘‘one can conceive of circumstances in which prosecutors rely on a prior interpretation of a statute to

such an extent that retroactive application of a different

subsequent interpretation might not be warranted.’’ Id.,

767. For example, ‘‘[i]f there are cases in which a petitioner was not convicted of the underlying assault, in

reliance on a pre-Salamon interpretation of § 53a-92 (a)

(2) (A), we have left open the possibility that retroactive

relief may not be available.’’ Id., 770.

After adopting this general presumption in favor of

retroactivity, the plurality addressed whether Salamon

should be applied retroactively in the petitioner’s case.

The plurality ‘‘agree[d] with [Luurtsema] that, as a matter of state common law, Salamon should be afforded

fully retroactive effect in his particular case.’’ Id., 751.

The plurality reasoned: ‘‘This is not a case . . . in

which the state, in selecting the crimes with which to

charge [Luurtsema], can plausibly be said to have relied

to its detriment on the prior interpretation of the kidnapping statutes.’’ Id., 773. ‘‘Here, [Luurtsema] was charged

with every crime for which he might reasonably have

been held liable . . . .’’ Id., 768. That is, ‘‘the record

discloses no indication that the state would have

charged [Luurtsema] differently had it anticipated the

subsequent interpretation of § 53a-92 (a) (2) (A) in Salamon.’’ Id. The plurality further stated that it could not

discern any evidence from the current record ‘‘that

[Luurtsema] intended to restrain the victim more than

was necessary to effect the underlying assault.’’ Id.,

773–74.

Justices Katz, Palmer, and McLachlan each filed concurring opinions in which no other justices joined. Justice Katz ‘‘wholly agree[d] with the plurality’s thoughtful

explanation as to why we should reject the state’s call

to adopt a per se rule against retroactivity and its equally

persuasive rejection of the state’s arguments against

affording relief to [Luurtsema].’’ Id., 791 (Katz, J., concurring). She did not agree, however, with the plurality’s ‘‘novel rule of retroactivity under our common-law

authority, under which habeas courts may decline to

afford relief ‘where it is clear that the legislature did

intend to criminalize the conduct at issue, if perhaps

not under the precise label charged.’ ’’ Id., 775. Instead,

she ‘‘conclude[d] that Salamon clarified the meaning

of our kidnapping statutes’’; id., 785; and, therefore, the

federal due process clause required a per se rule of full

retroactivity for Salamon. Id., 775. She further ‘‘conclude[d] that, even if it were necessary to decide this

case under our common-law authority, we should adopt
a per se rule that decisions narrowing the interpretation

of criminal statutes apply retroactively.’’ Id.

Justice Palmer ‘‘agree[d] with much of the plurality

opinion and concur[red] in the result that the plurality

reache[d].’’ Id., 797 (Palmer, J., concurring). He

acknowledged that ‘‘[t]he plurality may be correct that

there is persuasive reason to reject a per se rule, but

we need not resolve the issue to decide the present

case because, as the plurality also concludes, the petitioner . . . is entitled to full retroactivity regardless

of whether we adopt such a rule.’’ Id. Justice Palmer

expressed his reservation at deciding ‘‘the question of

whether to adopt a per se rule in favor of full retroactivity under our common law’’; id.; because ‘‘this court,

in rejecting a per se rule for purposes of our common

law, adopts a rule that is contrary to constitutional

requirements, a result that should be avoided.’’ Id., 798.

Finally, Justice McLachlan ‘‘concur[red] with the plurality reluctantly.’’ Id., 798 (McLachlan, J., concurring).

He concurred reluctantly because, although he

‘‘agree[d] with the holding of Salamon’’; id.; he ‘‘disagree[d] with that portion of the analysis [in Salamon]

in which the court concluded that for more than thirty

years, and in innumerable cases, the courts of this state,

including this court, have misconstrued our kidnapping

statutes.’’ Id., 799. He agreed with the plurality that

‘‘[i]n Salamon, this court adopted a ‘new rule’ expressly

overruling the law in existence at the time of the petitioner’s crime and conviction.’’ Id. He further stated: ‘‘To

date the United States Supreme Court has not required

‘new’ interpretations of statutes to be applied retroactively in criminal cases, and I would not so provide. . . .

Although I would prefer to follow our long-standing

principle of finality of judgments and would deny the

petitioner the relief that he seeks, I am compelled to

follow the precedent established by Salamon, and,

accordingly, concur in the result.’’ Id.

Because Luurtsema II was a plurality opinion, when

deciding whether Salamon should be applied retroactively in the present case, we must first determine its

precedential value. Our Supreme Court has instructed

that ‘‘[w]hen a fragmented [c]ourt decides a case and

no single rationale explaining the result enjoys the

assent of [a majority of the] [j]ustices, the holding of

the [c]ourt may be viewed as the position taken by

those [m]embers who concurred in the judgments on

the narrowest grounds . . . .’’ (Internal quotation

marks omitted.) State v. Ross, 272 Conn. 577, 604 n.13,

863 A.2d 654 (2005), quoting Marks v. United States,

430 U.S. 188, 193, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977).

It appears that the only parts of the plurality opinion

in Luurtsema IIthat have any precedential value are the

court’s affirmative answers to the reserved questions

of whether Salamon applies retroactively in habeas

corpus proceedings and to Luurtsema’s case in particu-
lar. See Hinds v. Commissioner of Correction, supra,

321 Conn. 106–107 and n.3 (Zarella, J., dissenting).

Those answers are the narrowest grounds on which a

majority of the panel clearly agreed.

With respect to the first reserved question, although

a majority of the court in Luurtsema II agreed that

Salamon could be applied retroactively in collateral

proceedings, there was no clear majority concerning

how and to what extent Salamon should be applied

retroactively. The three justice plurality adopted a general presumption of full retroactivity, subject to certain

limited exceptions, while Justice Katz supported a per

se rule in favor of full retroactivity. Neither Justice

Palmer nor Justice McLachlan expressly endorsed a

particular approach to retroactivity; they concurred

only in the result reached by the plurality.

With respect to the second reserved question, the

facts of the present case are sufficiently distinguishable

from those in Luurtsema II such that the court’s affirmative answer to the second reserved question also

does not control the outcome of the present case. The

petitioner was convicted after pleading guilty pursuant

to a plea agreement with the state and federal government, and admitting his role in the Brown abduction

and robbery. Luurtsema was convicted after a jury trial

in which the jury was not instructed that, to find him

guilty of kidnapping, it had to find beyond a reasonable

doubt that he intended to prevent the victim’s liberation

for a longer period of time or to a greater degree than

that which was necessary to commit the other crime.

A majority of the court in Luurtsema II further appears

to have agreed that this instructional error was not

harmless beyond a reasonable doubt in light of the facts

and circumstances of Luurtsema’s case.

As a result, there is no binding precedent controlling

the unique issue presently before us: whether Salamon

should be applied retroactively to collateral attacks on

a kidnapping conviction when the defendant pleaded

guilty to that charge, and only that charge, pursuant to

a plea agreement. Having given thorough consideration

to the various approaches endorsed by the justices in

Luurtsema II, we find the reasoning of the plurality of

the court in Luurtsema II to be the most persuasive in

the context of Salamon. As the United States Supreme

Court has observed, one of the reasons that decisions

narrowing the scope of a criminal statute should generally apply retroactively is ‘‘because [those decisions]

necessarily carry a significant risk that a defendant

stands convicted of an act that the law does not make

criminal or faces a punishment that the law cannot

impose upon him.’’ (Internal quotation marks omitted.)

Schriro v. Summerlin, 542 U.S. 348, 352, 124 S. Ct. 2519,

159 L. Ed. 2d 442 (2004); see also Luurtsema II, supra,

299 Conn. 759 (reasoning general presumption of retroactivity appropriate because ‘‘considerations of finality
simply cannot justify the continued incarceration of

someone who did not commit the crime of which he

stands convicted’’ and it would be unjust and amount

to judicial usurpation of the legislature to permit defendant to be convicted of ‘‘two crimes where the legislature intended only one’’). As the present case

exemplifies, however, there are situations where the

traditional rationales underlying the writ of habeas corpus simply do not favor full retroactivity. Therefore,

we adopt the rule and reasoning of the plurality opinion

in Luurtsema II in deciding the issue presently before

us. See Luurtsema II, supra, 751, 758–73.

We next consider whether Salamon should be

applied retroactively to the present case. The petitioner

argues that Salamon should be applied retroactively

because ‘‘there is no differentiation between a conviction obtained as a result of a trial or by way of a plea’’

and because there is a risk that after Salamon, his

conviction does not comport with the due process

requirements for guilty pleas. We are not persuaded.

‘‘Whatever might be the situation in an ideal world,

the fact is that the guilty plea and the often concomitant

plea bargain are important components of this country’s

criminal justice system. Properly administered, they can

benefit all concerned.’’ Blackledge v. Allison, 431 U.S.

63, 71, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977); see also

Statewide Grievance Committee v. Whitney, 227 Conn.

829, 842, 633 A.2d 296 (1993) (‘‘plea discussions [are] not

only an essential part of the [administration of criminal

justice] but a highly desirable part for many reasons’’

[internal quotation marks omitted]). The defendant

avoids extended pretrial incarceration and the anxieties

and uncertainties of a trial. Blackledge v. Allison, supra,

71. He further gains the certainty of a known and

reduced penalty, a speedy disposition of his case, the

chance to acknowledge his guilt, and a prompt start in

realizing whatever potential there may be for rehabilitation. Id.; State v. Sebben, 145 Conn. App. 528, 545, 77

A.3d 811, cert. denied, 310 Conn. 958, 82 A.3d 627 (2013),

cert. denied, U.S. , 134 S. Ct. 1950, 188 L. Ed.

2d 962 (2014). The state in turn obtains a prompt and

largely final disposition of criminal charges with the

certainty of a conviction. Statewide Grievance Committee v. Whitney, 842; State v. Sebben, supra, 545.

‘‘Judges and prosecutors conserve vital and scarce

resources. The public is protected from the risks posed

by those charged with criminal offenses who are at

large on bail while awaiting completion of criminal proceedings.’’ Blackledge v. Allison, supra, 71.

‘‘These advantages can be secured, however, only if

dispositions by guilty plea are accorded a great measure

of finality. To allow indiscriminate hearings in . . .

postconviction proceedings . . . would eliminate the

chief virtues of the plea system—speed, economy, and

finality. And there is reason for concern about that
prospect. More often than not a prisoner has everything

to gain and nothing to lose from filing a collateral attack

upon his guilty plea. If he succeeds in vacating the

judgment of conviction, retrial may be difficult. If he

convinces a court that his plea was induced by an advantageous plea agreement that was violated, he may

obtain the benefit of its terms. A collateral attack may

also be inspired by a mere desire to be freed temporarily

from the confines of the prison. . . .

‘‘Yet arrayed against the interest in finality is the very

purpose of the writ of habeas corpus—to safeguard a

person’s freedom from detention in violation of constitutional guarantees. . . . The writ of habeas corpus

has played a great role in the history of human freedom.

It has been the judicial method of lifting undue

restraints upon personal liberty. . . . And a prisoner

in custody after pleading guilty, no less than one tried

and convicted by a jury, is entitled to avail himself

of the writ in challenging the constitutionality of his

custody.’’ (Citations omitted; emphasis omitted; internal quotation marks omitted.) Id., 71–72.

To balance these competing interests of finality and

personal freedom from detention in violation of constitutional guarantees, our courts have required a petitioner to ‘‘demonstrate a miscarriage of justice or other

prejudice and not merely an error which might entitle

him to relief on appeal’’ in order to mount a successful

collateral attack on his conviction. (Internal quotation

marks omitted.) Peruccio v. Commissioner of Correction, 107 Conn. App. 66, 71, 943 A.2d 1148, cert. denied,

287 Conn. 920, 951 A.2d 569 (2008) (quoting Summerville v. Warden, 229 Conn. 397, 419, 641 A.2d 1356

[1994]). ‘‘In order to demonstrate such a fundamental

unfairness or miscarriage of justice, the petitioner

should be required to show that he is burdened by an

unreliable conviction.’’ (Internal quotation marks omitted.) Peruccio v. Commissioner of Correction, supra,

71. These principles apply with equal force to the question of whether Salamon should be applied retroactively in the present case. See Luurtsema II, supra, 299

Conn. 757 (‘‘[i]n evaluating the rationales that other

jurisdictions have proffered for and against giving full

retroactive effect to new interpretations of criminal

statutes, we deem it axiomatic that the policies governing the availability of habeas relief should reflect the

purposes for which the remedy was established’’); id.

760 (declining to adopt per se rule of retroactivity

‘‘because a review of the diverse contexts in which

such challenges have arisen persuades us that there are

various situations in which to deny retroactive relief

may be neither arbitrary nor unjust’’); id., 764 (‘‘[i]n

situations where the criminal justice system has relied

on a prior interpretation of the law so that providing

retroactive relief would give the petitioner an undeserved windfall, the traditional rationales underlying

the writ of habeas corpus may not favor full retroac-
tivity’’).

With these legal principles in mind, we conclude that

the traditional rationales underlying the writ of habeas

corpus do not favor applying Salamon retroactively in

the present case. First, there is no risk that the petitioner

stands convicted of an act that the law does not make

criminal. See Schriro v. Summerlin, supra, 542 U.S.

352. The criminal conduct the petitioner admitted to

engaging in at his plea hearing was extremely serious.

See footnotes 5 and 6 of this opinion. The petitioner

along with three other individuals abducted Brown at

gunpoint from his place of employment in Bridgeport,

drove with him to his house in Shelton, forced their

way into his house, and stole a substantial amount of

money, jewelry, and property from his safe. See footnote 6 of this opinion. The entire nighttime incident

lasted from approximately 8:45 p.m. until approximately 10:34 p.m. See footnote 5 of this opinion. The law

clearly criminalizes this type of conduct under several

statutes, including § 53a-92 (a) (2) (B). This is true even

after Salamon.

‘‘Although our holding in Salamon constituted a significant change with respect to our interpretation of the

kidnapping statutes, we emphasized that [o]ur holding

does not represent a complete refutation of the principles established by our prior kidnapping jurisprudence.

. . . When [the] confinement or movement is merely

incidental to the commission of another crime . . . [it]

must have exceeded that which was necessary to commit the other crime. [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

. . . . [T]he test . . . to determine whether [the] confinements or movements involved [were] such that kidnapping may also be charged and prosecuted when an

offense separate from kidnapping has occurred asks

whether the confinement, movement, or detention was

merely incidental to the accompanying felony or

whether it was significant enough, in and of itself, to

warrant independent prosecution.’’ (Internal quotation

marks omitted.) State v. O’Brien-Veader, 318 Conn. 514,

557–58, 122 A.3d 555 (2015).

On the basis of the facts admitted by the petitioner

at the plea hearing, it cannot plausibly be argued that

the movement and confinement of Brown was merely

incidental to the commission of the burglary and robbery. Instead, the movement and confinement of Brown

was significant enough to warrant independent prosecution under § 53a-92 (a) (2) (B). That is, although the

movement and confinement of Brown during the drive

from his place of work in Bridgeport to his house in

Shelton might have facilitated the robbery and burglary,

the degree to which the petitioner and his companions

confined and moved Brown was not necessary to com-
mit the robbery and burglary, nor was it inherent to

those offenses. The court in Salamon made clear that

when ‘‘the victim is moved or confined in a way that

has independent criminal significance, that is, the victim

was restrained to an extent exceeding that which was

necessary to accomplish or complete the other crime’’;

State v. Salamon, supra, 287 Conn. 547; a defendant

may still be convicted of kidnapping in conjunction

with another substantive crime. Id., 547 n.33; see, e.g.,

State v. Ward, 306 Conn. 718, 736–39, 51 A.3d 970 (2012)

(sufficient evidence of kidnapping when defendant

dragged victim at knife-point from kitchen to bedroom

where he moved her from bed to floor for sexual assault

because that act made victim’s ‘‘possibility of escape

even more remote’’ and sexual assault was brief part

of entire fifteen minute encounter); State v. Hampton,

293 Conn. 435, 463–64, 988 A.2d 167 (2009) (absence

of Salamon instruction harmless because defendant

drove victim around for approximately three hours

before ordering her out of car, sexually assaulting her,

and shooting her); State v. Nelson, 118 Conn. App. 831,

834–35, 861–62, 986 A.2d 311 (absence of Salamon

instruction harmless because defendant repeatedly had

assaulted victim in his apartment, demanding to know

location of his money and threatening to kill him, and,

afterward, restrained him for several hours while transporting him to several locations), cert. denied, 295

Conn. 911, 989 A.2d 1074 (2010).

Second, there is no risk that the petitioner faces a

punishment that the law cannot impose upon him. See

Schriro v. Summerlin, supra, 542 U.S. 352. Kidnapping

in the first degree is a class A felony, for which a court

may impose a term of imprisonment of ‘‘not less than

ten years nor more than twenty-five years . . . .’’ General Statutes (Rev. to 2003) § 53a-35a (3); see also General Statutes § 53a-92 (b). Salamon had no impact on

this sentencing scheme. As a result, the law clearly

authorizes the petitioner’s sentence of fifteen years and

eight months imprisonment.

Third, and finally, we are mindful that the petitioner

pleaded guilty pursuant to a negotiated plea agreement.

Specifically, the petitioner agreed to plead guilty to

kidnapping in the first degree and to being a felon in

possession of a firearm in exchange for the certainty

of concurrent sentences of fifteen years and eight

months of imprisonment in the state and federal cases,

and the entry of a nolle prosequi on the remaining state

charges. The petitioner has received precisely what he

bargained for under the terms of that agreement. If

Salamon is applied retroactively in the present case

and the petitioner’s conviction is vacated, however, the

state will have lost the benefit of its bargain. We recognize that in many cases the state and society’s interest

in ‘‘finality must give way to the demands of liberty and

a proper respect for the intent of the legislative branch.’’

Luurtsema II, supra, 299 Conn. 766. Nevertheless, we
cannot ignore the fact that, unlike in Luurtsema II, the

state in the present case can plausibly be said to have

relied to its detriment on our Supreme Court’s prior

interpretation of our kidnapping statutes when constructing the terms of the plea agreement. To authorize

a term of fifteen years and eight months imprisonment,

the petitioner could have pleaded guilty to kidnapping

in the first degree, burglary in the first degree, robbery

in the first degree, or another appropriate felony

offense, e.g., conspiracy to commit one of the aforementioned felonies.12 Had the state been prescient enough

to foresee Salamon and thus selected a nonkidnapping

offense as the basis for the guilty plea, Salamon would

be irrelevant and the state would not be faced with the

prospect of reconstructing and reprosecuting a fourteen

year old case.

In light of these facts and circumstances, we fail

to see how not applying Salamon retroactively in the

present case would be fundamentally unfair or manifestly unjust. ‘‘Plea bargains always entail risks for the

parties—risks relating to what evidence would or would

not have been admitted at trial, risks relating to how

the jury would have assessed the evidence and risks

relating to future developments in the law. The salient

point is that a plea agreement allocates risk between

the two parties as they see fit. If courts disturb the

parties’ allocation of risk in an agreement, they threaten

to damage the parties’ ability to ascertain their legal

rights when they sit down at the bargaining table and,

more problematically for criminal defendants, they

threaten to reduce the likelihood that prosecutors will

bargain away counts (as the prosecutors did here) with

the knowledge that the agreement will be immune from

challenge on appeal.’’ United States v. Bradley, 400 F.3d

459, 464 (6th Cir.), cert. denied, 546 U.S. 862, 126 S. Ct.

145, 163 L. Ed. 2d 144 (2005); accord United States v.

Lockett, 406 F.3d 207, 213 (3d Cir. 2005); see also Young

v. United States, 124 F.3d 794, 798 (7th Cir. 1997) (‘‘If

the law allowed the defendant to get off scot free in

the event the argument later is shown to be a winner,

then the defendant could not get the reduction in the

first place. Every plea would become a conditional plea,

with the (unstated) condition that the defendant obtains

the benefit of favorable legal developments, while the

prosecutor is stuck with the original bargain no matter

what happens later. That approach destroys the bargain,

and the prospect of such an outcome will increase the

original sentence.’’ [Emphasis omitted.]), cert. denied,

524 U.S. 928, 118 S. Ct. 2324, 141 L. Ed. 2d 698 (1998).

In sum, we are not persuaded that the traditional

rationales underlying the writ of habeas corpus favor

full retroactive application of Salamon in the present

case. There is no risk that the petitioner stands convicted of an act that the law does not make criminal

or faces a punishment that the law cannot impose upon

him. The state has also relied sufficiently to its detri-
ment on our Supreme Court’s prior interpretation of

our kidnapping statutes when constructing the terms

of the plea agreement such that applying Salamon retroactively in the present case would be inappropriate.

Accordingly, the petitioner’s due process claim, which

is predicated on the retroactive application of Salamon,

necessarily fails.

III

The petitioner’s final claim is that because his guilty

plea is invalid and his conviction must be vacated, he

is once again entitled to a presumption of innocence

and, therefore, he is actually innocent of kidnapping in

the first degree. We decline to review the petitioner’s

claim.

‘‘It is well settled that this court is not bound to

consider any claimed error unless it appears on the

record that the question was distinctly raised at trial

and was ruled upon and decided by the court adversely

to the appellant’s claim. . . . It is equally well settled

that a party cannot submit a case to the trial court on

one theory and then seek a reversal in the reviewing

court on another. . . . To review such a newly articulated claim, would amount to an ambuscade of the

[habeas] judge.’’ (Citation omitted; internal quotation

marks omitted.) Peeler v. Commissioner of Correction,

170 Conn. App. 654, 677, 155 A.3d 772, cert. denied, 325

Conn. 901, 157 A.3d 1146 (2017).

In his second habeas petition and before the habeas

court, the petitioner claimed that he was actually innocent of kidnapping in the first degree only because he

‘‘did not intend to prevent the victim’s liberation for a

longer period of time or to a greater degree than that

which was necessary to commit a separate crime.’’ In

his petition for certification to appeal, the petitioner

raised only a generic claim that the habeas court ‘‘erred

by failing to find that [he] was actually innocent of the

crime of kidnapping.’’ Because the petitioner’s claim

on appeal was never distinctly raised before the habeas

court, it could not have been ruled on by the habeas

court in a manner adverse to the petitioner. Accordingly, we decline to review this claim for the first time

on appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

1 General Statutes § 53a-92 provides in relevant part: ‘‘(a) A person is

guilty of kidnapping in the first degree when he abducts another person

and . . . (2) he restrains the person abducted with intent to . . . (B)

accomplish or advance the commission of a felony . . . .’’

2

In the appendix to his brief, the petitioner provided the docket sheet

for his criminal case, which states that he was initially charged with burglary

in the first degree, robbery in the first degree, larceny in the first degree in

violation of General Statutes § 53a-122, and kidnapping in the first degree

with a firearm in violation of General Statutes § 53a-92a.

The docketing sheet was not admitted into evidence at the second habeas

trial. On the basis of the allegations in the criminal case, however, it appears

that the petitioner could have been charged with larceny in the first degree.
See General Statutes (Rev. to 2003) § 53a-122 (a) (‘‘[a] person is guilty of

larceny in the first degree when he commits larceny, as defined in section

53a-119, and . . . [2] the value of the property . . . exceeds ten thousand dollars’’).

The petitioner’s trial counsel also testified at the first habeas trial that

the petitioner was initially charged with kidnapping in the first degree with

a firearm, and a transcript of the first habeas trial was admitted into evidence

at the second habeas trial. The first habeas court further found that ‘‘[t]he

evidence clearly reveals that the petitioner was present, with a firearm,

in Brown’s home when the robbery took place.’’ Little I, supra, 2008 WL

4415754, *3.

3 The petitioner pleaded guilty in federal court to being a felon in possession of a firearm, but the record does not reflect whether any additional

federal charges were pending against the petitioner before he pleaded guilty

or what the petitioner’s sentencing exposure was under the United States

Sentencing Guidelines.

4 Evidence was presented at the first and second habeas trials that the

petitioner was further exposed to enhanced penalties as a persistent felony

offender. See General Statutes (Rev. to 2003) § 53a-40 (f) and (m). Specifically, the petitioner testified at the first habeas trial that he previously

pleaded guilty to: (1) sale of narcotics and possession of marijuana in May,

1999; (2) possession of narcotics, two counts of assault in the third degree,

and interfering with a police officer in May, 1999; and (3) assault in the second

degree in October, 1994. The petitioner also admitted that he previously

was convicted of attempted robbery in the first degree after a jury trial.

The petitioner’s trial counsel similarly testified at the first habeas trial

that the prosecutor in the petitioner’s state case ‘‘very frequently uses the

enhanced penalties of the persistent offender statutes’’ and that the petitioner ‘‘[a]bsolutely . . . would have been subject to that statute’s terms.’’

Trial counsel further testified that he believed that the facts of the case

would have supported additional substantive criminal charges, including

conspiracy. Trial counsel confirmed that when he and the petitioner’s federal

public defender met with the petitioner, they explained to him not only

his sentencing exposure for the pending charge, but also the prospective

additional charges and penalties.

5 The information, as read by the court clerk to the petitioner before he

pleaded guilty, made the following relevant allegations: ‘‘[The state] accuses

Jermaine F. Little of kidnapping in the first degree. Charges that at the cities

of Bridgeport and Shelton, on or about the ninth day of September, 2003,

commencing at approximately 8:45 p.m. and continuing until approximately

10:34 p.m. at locations known, including 1844 Barnum Avenue, Bridgeport,

and 27 Rock Rest Road, Shelton, and locations unknown, the said, Jermaine

F. Little did abduct another person and he restrained the person with intent

to accomplish or advance the commission of a felony . . . .’’

6 The prosecutor recited the following facts in support of the petitioner’s

guilty plea: ‘‘On September 9 at about 9 o’clock in the evening, when the

victim was closing his store, he was abducted by [the petitioner]. The victim

was taken in a car with other parties involved, who are [Harrison], [Freelove],

[and Peoples, and] taken to his home in Shelton where they forced entry

to his home. When in the home they had him open a safe. At least one or

more of them had a gun and they stole a substantial amount of money,

jewelry, property from the victim’s safe. The police did an excellent job,

including tracing cell phone calls where the victim’s cell phone was used

to call the [petitioner’s] relatives, or it may have even been the house that

the [petitioner] was living in. It was a very strong case.’’

7 The habeas court granted the second habeas petition only as it pertained

to one of the petitioner’s claims of ineffective assistance of habeas counsel.

Little II, supra, 2016 WL 2935514, *3. In particular, the petitioner claimed

that his first habeas counsel rendered ineffective assistance when he failed

to file a timely application for a fee waiver and appointment of counsel for

his appeal from the judgment of the first habeas court denying his first

habeas petition and his petition for certification to appeal. The habeas

court agreed that the petitioner’s first habeas counsel rendered ineffective

assistance in this respect. The habeas court cautioned, however: ‘‘I make

no judgment or prediction as to his ability to succeed; indeed, the petition

for certification to appeal was denied. . . . All I’m doing by this action is

allowing [the petitioner] to file the application for waiver of fees.’’ Id.

The petitioner’s appellate counsel in the present appeal was subsequently

appointed to represent him in his appeal from the judgment of the first

habeas court. On April 29, 2016, the petitioner’s appellate counsel filed an
Anders brief and a motion for permission to withdraw as counsel, representing that ‘‘[u]pon thorough review and examination of the transcripts, information and record in this matter, the undersigned has determined that an

appeal in this matter would be frivolous.’’ See Anders v. California, 386

U.S. 738, 744–45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); see, e.g., Lorthe v.

Commissioner of Correction, 103 Conn. App. 662, 674, 931 A.2d 348 (discussing filing of briefs by appointed counsel, pursuant to Anders, to inform

court that habeas petition or appeal is ‘‘wholly frivolous’’), cert. denied, 284

Conn. 939, 937 A.2d 696 (2007); see also Practice Book § 23-41 (governing

motions to withdraw by appointed counsel in habeas cases). On September

22, 2017, the court, Westbrook, J., granted the motion.

8

In Robles v. Commissioner of Correction, 169 Conn. App. 751, 752–53,

153 A.3d 29 (2016), cert. denied, 325 Conn. 901, 157 A.3d 1146 (2017), the

petitioner claimed that his guilty pleas to, inter alia, kidnapping in the first

degree and attempt to commit kidnapping in the first degree, made pursuant

to the doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27

L. Ed. 2d 162 (1970), were not made knowingly, intelligently, and voluntarily

in light of our Supreme Court’s subsequent holding in Salamon. This court

declined to review the defendant’s claim because he failed to raise it before

the habeas court. Id., 753.

9 Following appellate briefing and oral argument before this court, we

sua sponte ordered the parties to file simultaneous supplemental briefs

addressing the issue of retroactivity.

10 Our Supreme Court did not foreclose the possibility that a defendant

could mount a successful constitutional challenge to his conviction on

those grounds. Luurtsema challenged his conviction only on the ground that

there was insufficient evidence to support his conviction, not on the ground

that the kidnapping statute was unconstitutionally vague as applied to the

facts of his case. Luurtsema I, supra, 262 Conn. 203–204. As a result, the

court stated that it could ‘‘neither acknowledge nor reject the merits of such

a constitutional claim.’’ Id., 204.

11 In 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), overruled in part by State v. Payne, 303 Conn. 538, 548, 34

A.3d 370 (2012), a companion case released on the same day as Salamon,

our Supreme Court took up a second challenge by a defendant convicted

after a jury trial of kidnapping in the first degree for conduct incidental to

a series of sexual assaults. Our Supreme Court declined to address the

defendant’s constitutional claim, applied Salamon retroactively; id., 618–20,

624–26; and concluded that the defendant was entitled to a new trial on the

basis of the court’s failure to instruct the jury in accordance with Salamon.

State v. Sanseverino, 291 Conn. 574, 589–90, 969 A.2d 710 (2009). Because

the direct appeal in Sanseverino was still pending when Salamon was

decided, however, there was no question that Salamon should be applied

retroactively in that case. See State v. Sanseverino, supra, 287 Conn. 620

n.11 (‘‘a rule enunciated in a case presumptively applies retroactively to

pending cases’’).

12 Burglary in the first degree and robbery in the first degree are class B

felonies, for which a court may generally impose a term of imprisonment

of ‘‘not less than one year nor more than twenty years . . . .’’ General

Statutes (Rev. to 2003) § 53a-35a (5); see also General Statutes §§ 53a-101

(c) and 53a-134 (b). If the petitioner were convicted under subsection (a)

(1) of the burglary statute or subsection (a) (2) of the robbery statute,

however, the court cannot impose a term of imprisonment of less than five

years. General Statutes (Rev. to 2003) § 53a-35a (5). Conspiracy is a crime

of ‘‘the same grade and degree as the most serious offense which . . . is

an object of the conspiracy, except that . . . [a] conspiracy to commit a

class A felony is a class B felony.’’ General Statutes § 53a-51.