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*********************************************** 
ROBERT C. GODFREY v. COMMISSIONER

OF CORRECTION

(AC 42890)

Bright, C. J., and Prescott and Suarez, Js

Syllabus

The petitioner, who had pleaded guilty to murder, appealed to this court

from the judgment of the habeas court, which denied his petition for a

writ of habeas corpus. The petitioner alleged, inter alia, that his guilty

plea should be vacated pursuant to the doctrine of frustration of purpose

because the subsequent abolishment of the death penalty in Connecticut

frustrated his principal purpose in accepting the plea agreement, namely,

to avoid the death penalty. The relief he sought was a judgment vacating

the original plea agreement and the remand of his case for resentencing

in accordance with a plea that would have been negotiated had the

death penalty been unavailable. The habeas court, after a trial at which

both of the petitioner’s trial counsel testified, concluded that the petitioner failed to prove that his principal purpose for agreeing to enter a

guilty plea was substantially frustrated by the subsequent abolition of

the death penalty and that he had assumed the risk that the death penalty

subsequently might be abolished. On the granting of certification, the

petitioner appealed to this court. Held that the petitioner cannot prevail

on his claim that he was entitled to relief under the frustration of purpose

doctrine because, even if this court assumed that the frustration of

purpose doctrine applied to plea agreements, by accepting the plea

agreement, contract principles dictate that the petitioner assumed the

risk that at some point the death penalty could be abolished: the record

demonstrated that the terms of the agreement were unambiguous, that

the petitioner was fully aware of the consequences of his bargain, and

the parties, having been made aware of the potential for future favorable

changes to the law, intended for the plea agreement to remain enforceable notwithstanding any future changes to the law, including the subsequent abolition of the death penalty in Connecticut, which did not change

the petitioner’s expectations under the agreement, namely, that he serve

a full sixty year sentence and not be permitted to appeal or withdraw his

guilty plea after the court imposed the agreed upon sentence; moreover,

although the petitioner may have miscalculated the likely penalties

attached to alternative courses of action, an individual cannot withdraw

a guilty plea merely because a subsequent change in the law rendered

the maximum penalty for the crime in question less than was reasonably

assumed at the time the plea was entered, even when the maximum

penalty at issue was death, and any such miscalculation did not provide

a basis to grant habeas relief to the petitioner regarding his guilty plea;

furthermore, as our Supreme Court unequivocally has rejected the amelioration doctrine, which provides that amendments to statutes that

lessen their penalties are applied retroactively, it would be improper to

vacate the petitioner’s guilty plea pursuant to the frustration of purpose

doctrine, which in this instance is the functional equivalent of applying

the amelioration doctrine and which would work a substantial injustice

on the state in new plea negotiations as the petitioner would enjoy a

much greater degree of leverage than in the first negotiation because

of the numerous difficulties attendant to securing a conviction at trial

nearly twenty years after the crime was committed, including evidence

that has become stale, memories that have faded, and witnesses that

may no longer be available.

Argued October 8, 2020—officially released February 23, 2021

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, Bhatt, J.; judgment

denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.

Affirmed.

Vishal K. Garg, assigned counsel, for the appellant

(petitioner).

Tamara Grosso, assistant state’s attorney, with

whom, on the brief, were Laurie N. Feldman, deputy

assistant state’s attorney, and Gail P. Hardy, former

state’s attorney, for the appellee (respondent).
Opinion

PRESCOTT, J. This appeal presents the important

question of whether, under the common-law contractual ‘‘frustration of purpose’’ doctrine, a habeas petitioner who had been charged with a capital felony and

pleaded guilty to murder in order to avoid the imposition of the death penalty is entitled to withdraw his

guilty plea sixteen years later because the death penalty

has since been abolished. We conclude that, even if the

frustration of purpose doctrine applies to criminal plea

agreements, the petitioner, Robert C. Godfrey, is not

entitled to relief under that doctrine because by entering

into the plea agreement, he assumed the risk that the

death penalty might be abolished at some point while he

was serving his sentence of sixty years of incarceration.

The petitioner appeals from the judgment of the

habeas court denying his petition for a writ of habeas

corpus.1 On appeal, the petitioner claims that the court

improperly concluded that he was not entitled to habeas

relief with respect to a collateral attack on his guilty

plea because (1) he failed to prove that his principal

purpose for entering into a guilty plea with an agreed

upon sixty year sentence was substantially frustrated

by the subsequent abolition of the death penalty and

(2) he had assumed the risk that the law might change in

his favor.2 We conclude that the habeas court properly

determined that the petitioner had assumed the risk

that the death penalty might be abolished at some point

while he was serving his sixty year sentence, and, therefore, we do not reach his first claim. Accordingly, we

affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our disposition of the petitioner’s claims.3 On

November 9, 2001, the East Hartford police responded

to apartment 209 of an apartment complex on a report

that a woman was found dead. Upon arrival, the police

observed the woman’s nude body, with a large open

wound to the back of her head, lying face down next

to the bed. There were large amounts of blood on the

walls, the bed, and the floors of the apartment. In the

kitchen, there were what appeared to be bloody footprints. The footprints led from apartment 209, up the

outer staircase, to the door of apartment 309, which is

where the petitioner lived. When the petitioner first was

interviewed by the police, he indicated that he knew

the victim, and that they may have had a few beers

together, but he did not know how the bloody footprints

could have ended up outside of his doorway. The petitioner consented to the taking of a DNA sample, which

later was determined by the medical examiner to match

the semen found in the victim. The cause of the victim’s

death was cranial cerebral trauma, caused by ten to

fifteen blows from a sharp instrument. A search warrant

was executed at the petitioner’s apartment, where the

police found bloody footprints inside, which later were
determined to match the petitioner’s own footprints,

and clothes stained with the victim’s blood.

On November 27, 2001, the petitioner was charged

with capital felony in violation of General Statutes (Rev.

to 2001) § 53a-54b (7), murder in violation of General

Statutes § 53a-54a, felony murder in violation of General

Statutes § 53a-54c, two counts of burglary in the first

degree in violation of General Statutes § 53a-101 (a) (1)

(2), and two counts of sexual assault in the first degree

in violation of General Statutes § 53a-70 (a) (1). Thereafter, the petitioner entered into a plea agreement with

the state. Pursuant to the agreement, the state filed a

substitute information charging the petitioner with one

count of murder in violation of § 53a-54a (a), to which

he agreed to plead guilty in exchange for a sentence of

sixty years of incarceration. On March 11, 2004, the

court canvassed the petitioner regarding his guilty plea.

Through that canvass, the court determined, inter alia,

that the petitioner understood that (1) the guilty plea

was ‘‘for keeps,’’ meaning that he would not be permitted to ‘‘change his mind later and take it back,’’ (2) he

could not withdraw his guilty plea ‘‘unless the court

doesn’t impose a sentence agreed upon,’’ (3) he was

‘‘giving up any rights to an appeal,’’ and (4) the sentencing statute required that he serve the sixty years ‘‘day

for day.’’ The court found that there was a factual basis

for the petitioner’s guilty plea and that it was knowingly

and voluntarily made. The court then accepted the plea

and later sentenced the petitioner, consistent with the

plea agreement, to a term of sixty years of imprisonment.

On April 25, 2012, No. 12-5 of the 2012 Public Acts

(P.A. 12-5) was signed into law, prospectively repealing

the death penalty for all crimes committed on or after

that date, and retaining the death penalty for capital

felonies committed prior to that date. Three years later,

our Supreme Court, in State v. Santiago, 318 Conn. 1,

119, 122 A.3d 1 (2015), held that the imposition of the

death penalty on offenders who committed capital

crimes prior to the enactment of P.A. 12-5 would violate

article first, §§ 8 and 9, of the Connecticut constitution,

thus effectively abolishing the death penalty in Connecticut.

Following the release of the Santiago decision, the

petitioner filed a petition for a writ of habeas corpus.

On April 17, 2018, the petitioner filed an amended petition that alleged ineffective assistance of trial counsel

in count one and, in count two, that his guilty plea

should be vacated pursuant to the doctrine of frustration of purpose because the abolishment of the death

penalty in Connecticut frustrated his principal purpose

in accepting the plea agreement, namely, to avoid the

death penalty. The relief sought in the petition is a

judgment vacating the original plea agreement and the

remand of his case for resentencing ‘‘in accordance
with the plea that would have been negotiated had the

death penalty been unavailable.’’ The respondent, the

Commissioner of Correction, filed a return on May 21,

2018, in which he asserted that the petitioner failed to

state a ground on which relief can be granted, and

raised the defense of procedural default. Thereafter,

the respondent filed a motion to dismiss count two of

the petition on the same grounds alleged in the return.

At the habeas trial, on September 4, 2018, the petitioner

withdrew count one of the petition and three witnesses

testified, including the petitioner and both of his trial

counsel, as to count two.

Specifically, both trial counsel testified, inter alia,

that they recommended to the petitioner that he plead

guilty because there was a significant likelihood that

he would receive the death penalty if the case went to

trial because of the ‘‘horrific’’ nature of the crime and

the weakness of evidence regarding any mitigating factors that might persuade the jury to decline to vote in

favor of the death penalty.4 One of the petitioner’s trial

counsel, Attorney Barry Butler, stated that he advised

the petitioner that a sixty year sentence, which he would

be required to serve in full, thereby rendering him ineligible for release until he is approximately ninety years

old, was more favorable than a life sentence without

the possibility of parole because of the potential for

future changes to the law that would make someone

with a finite sentence eligible for early release.5 Attorney Butler also stated that he had discussed with the

petitioner the possibility that one day the state might

abolish the death penalty, although he did not have

a specific expectation at that time that it would be

abolished. The petitioner testified, inter alia, that

avoiding the death penalty was ‘‘somewhat important’’

to him, that he was scared of the death penalty, and

that he would not have pleaded guilty and agreed to

a sixty year sentence if the death penalty had been

unavailable. In addition, he stated that he did not want

to plead guilty to a sexual assault, which was consistent

with Attorney Butler’s testimony that pleading guilty to

sexual assault was a ‘‘deal breaker’’ for the petitioner.

The habeas court rendered judgment on March 8, 2019,

denying the amended habeas petition.6 Specifically, the

court concluded that, as a matter of first impression,

the frustration of purpose doctrine, which is typically

applied in civil cases alleging breach of contract, also

applies to criminal plea agreements. The court then

applied that doctrine and found that the petitioner failed

to prove that (1) his principal purpose for agreeing to

enter a guilty plea was substantially frustrated by the

subsequent abolition of the death penalty,7 and (2) he

did not assume the risk that the death penalty subsequently might be abolished.8 On March 18, 2019, the

habeas court granted the petitioner certification to

appeal the habeas court’s judgment. This appeal followed. Additional facts will be set forth as needed.
On appeal, the petitioner claims that the habeas court

properly determined that the frustration of purpose doctrine applies to plea agreements, but improperly concluded that he was not entitled to habeas relief because

(1) he failed to prove that his principal purpose for

entering into a guilty plea was substantially frustrated

by the subsequent abolition of the death penalty and

(2) he had assumed the risk that the law might change

in his favor. In response, the respondent argues that

this court need not decide whether the frustration of

purpose doctrine applies to plea agreements in general

or in all circumstances because, even assuming

arguendo that it does apply, the petitioner has failed

to satisfy all four factors required for its applicability.

We agree with the respondent.

We begin by setting forth certain governing principles

of law as well as our standard of review. ‘‘It is well

settled that [p]rinciples of contract law and special due

process concerns for fairness govern our interpretation

of plea agreements. . . . As has previously been

explained in the context of plea agreements, [t]he primary goal of contract interpretation is to effectuate the

intent of the parties . . . . In ascertaining that intent,

we employ an objective standard and look to what the

parties reasonably understood to be the terms of the

plea agreement on the basis of their words and conduct,

and in light of the circumstances surrounding the making of the agreement and the purposes they sought to

accomplish. . . . [T]he threshold determination as to

whether a plea agreement is ambiguous as to the parties’

intent is a question of law subject to plenary review.’’

(Citations omitted; footnote omitted; internal quotation

marks omitted.) State v. Kallberg, 326 Conn. 1, 14–16,

160 A.3d 1034 (2017).

‘‘The doctrine of frustration of purpose . . . excuses

a promisor in certain situations where the objectives

of the contract have been utterly defeated by circumstances arising after the formation of the agreement.

. . . Excuse is allowed under this rule even though

there is no impediment to actual performance. . . . A

party claiming that a supervening event or contingency

has frustrated, and thus excused, a promised performance must demonstrate that: (1) the event substantially frustrated his principal purpose; (2) the nonoccurrence of the supervening event was a basic assumption

on which the contract was made; (3) the frustration

resulted without the fault of the party seeking to be

excused; and (4) the party has not assumed a greater

obligation than the law imposes.’’ (Citation omitted;

internal quotation marks omitted.) Howard-Arnold,

Inc. v. T.N.T. Realty, Inc., 315 Conn. 596, 605, 109 A.3d

473 (2015). Moreover, ‘‘[t]he establishment of the

defense requires convincing proof of a changed situation so severe that it is not fairly regarded as being

within the risks assumed under the contract.’’ (Footnote
omitted.) 17A Am. Jur. 2d, Contracts § 640 (2020). ‘‘The

doctrine of frustration of purpose is given a narrow

construction so as to preserve the certainty of contracts

. . . .’’ (Footnote omitted.) Id., § 641.9

‘‘The habeas judge, as the trier of facts, is the sole

arbiter of the credibility of witnesses and the weight

to be given to their testimony. . . . [T]his court cannot

disturb the underlying facts found by the habeas court

unless they are clearly erroneous . . . .’’ (Citation

omitted; internal quotation marks omitted.) Brooks v.

Commissioner of Correction, 105 Conn. App. 149, 153,

937 A.2d 699, cert. denied, 286 Conn. 904, 943 A.2d 1101

(2008). ‘‘The application of the habeas court’s factual

findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject

to plenary review.’’ (Internal quotation marks omitted.)

Gaines v. Commissioner of Correction, 306 Conn. 664,

677, 51 A.3d 948 (2012). ’’The excuse of frustration [of

purpose] is a question of law, to be determined by the

court from the facts of the case.’’ 17A Am. Jur. 2d, supra,

§ 640. Accordingly, we apply a plenary standard of

review to the present case, and will not disturb the

underlying facts found by the habeas court unless they

are clearly erroneous.

I

As the respondent correctly recognizes, we do not

need to determine definitively whether the frustration

of purpose doctrine applies to plea agreements in Connecticut because, even if we assume, consistent with

the conclusion of numerous state and federal courts,

that it does, the petitioner would not be entitled to

relief under the doctrine because, by accepting the plea

agreement, contract principles dictate that he assumed

the risk that at some point the death penalty could be

abolished. See United States v. Morgan, 406 F.3d 135,

137 (2d Cir. 2005) (‘‘the possibility of a favorable change

in the law after a plea is simply one of the risks that

accompanies pleas and plea agreements’’), cert. denied,

546 U.S. 980, 126 S. Ct. 549, 163 L. Ed. 2d 465 (2005);

see also United States v. Bradley, 400 F.3d 459, 464

(6th Cir. 2005) (‘‘Plea bargains always entail risks for

the parties . . . [including] 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

. . . with the knowledge that the agreement will be

immune from challenge on appeal.’’), cert. denied, 546

U.S. 862, 126 S. Ct. 145, 163 L. Ed. 2d 144 (2005).

Here, the record is clear that the terms of the agreement were unambiguous and that the petitioner was
fully aware of the consequences of his bargain. In other

words, he knew precisely what he was gaining and what

he was giving up when he opted for the certainty of

pleading guilty to a single count of murder in exchange

for a sixty year sentence, as opposed to standing trial

for capital felony, murder, felony murder, burglary in

the first degree, and sexual assault in the first degree

and facing a potential sentence of (1) death, (2) life in

prison without the possibility of parole, or (3) a sentence of 100 years or more of incarceration. See United

States v. Roque, 421 F.3d 118, 123 (2d Cir. 2005) (‘‘Viewing this plea agreement as a contract, we agree that

certain conditions have changed since the bargain was

struck. We further acknowledge that, had the parties

known what they know now . . . they might have bargained differently and might even have reached a different bargain. This is simply not relevant to whether [the

defendant’s] plea is enforceable, however. [The defendant] understood fully the consequences of his bargain,

both in terms of what he was gaining and what he was

giving up. . . . [I]n opting for certainty, both parties

accepted the risk that conditions relevant to their thencontemporary bargain, including [the law], might

change.’’ (Citations omitted; internal quotation marks

omitted.)), cert. denied sub nom. Delahoz v. United

States, 546 U.S. 1120, 126 S. Ct. 1094, 163 L. Ed. 2d

908 (2006).

Specifically, Attorney Butler advised the petitioner

that a sixty year sentence, which he would be required

to serve in full, is preferable to a life sentence without

the possibility of parole because of the potential for

future changes to the law that would make someone

with a finite sentence eligible for early release. Attorney

Butler likewise discussed with the petitioner the possibility that one day the state might abolish the death

penalty. In addition, both of the petitioner’s trial counsel

recommended to him that he take the plea deal in view

of what they perceived to be a significant likelihood

that he would be convicted at trial and sentenced to

death. With this knowledge, the petitioner elected to

limit his criminal exposure, forgo a lengthy capital trial

and its attendant stress for himself and his family,10

and accept a sixty year sentence, which left open the

potential for him to be released at age ninety or earlier

if he became eligible for parole because of a favorable

change in our parole eligibility laws. Moreover, as the

trial court’s thorough canvass illustrates, the petitioner

understood that under the terms of the agreement (1)

his guilty plea was ‘‘for keeps’’ in that he would not be

permitted to ‘‘change his mind later and take it back,’’

(2) he was waiving ‘‘any rights to an appeal,’’ (3) he

could not withdraw his guilty plea unless the court did

not impose the agreed upon sentence, and (4) he would

serve a sixty year sentence ‘‘day for day.’’ See United

States v. Roque, supra, 421 F.3d 123 (‘‘In no circumstances . . . may a defendant, who has secured the
benefits of a plea agreement and knowingly and voluntarily waived the right to appeal a certain sentence, then

appeal the merits of a sentence conforming to the agreement. Such a remedy would render the plea bargaining

process and the resulting agreement meaningless.’’

(Internal quotation marks omitted.)), quoting United

States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir.),

cert. denied, 509 U.S. 931, 113 S. Ct. 3060, 125 L. Ed.

2d 742 (1993). That the petitioner agreed to these unambiguous terms, after having been made aware of the

potential for future favorable changes to the law, indicates that the parties intended for the plea agreement to

remain enforceable notwithstanding any future changes

to the law.11 See State v. Kallberg, supra, 326 Conn.

15 (‘‘An unambiguous agreement is presumptively an

accurate reflection of the parties’ intent. Thus, [when]

the language is unambiguous, we must give the contract

effect according to its terms.’’ (Internal quotation marks

omitted.)). In addition, because the petitioner’s counsel

specifically discussed with the petitioner the possibility

that one day the state might abolish the death penalty,

the fact that this ultimately happened cannot be considered ‘‘a change so severe that it is unfair to regard it

as being within the risks assumed under the contract.’’12

See 17A Am. Jur. 2d, supra, § 640.

Furthermore, the subsequent abolition of the death

penalty in Connecticut did not change the petitioner’s

expectations under the agreement, namely, that he

serve a full sixty year sentence and not be permitted

to appeal or withdraw his guilty plea after the court

imposed the agreed upon sentence. See United States

v. Archie, 771 F.3d 217, 222 (4th Cir. 2014) (‘‘[A]lthough

the law changed after [the defendant] [pleaded] guilty,

his expectations (as reflected in the plea agreement)

did not. . . . A plea agreement, like any contract, allocates risk. . . . And the possibility of a favorable

change in the law occurring after a plea is one of the

normal risks that accompan[ies] a guilty plea.’’ (Citations omitted; internal quotation marks omitted.)), cert.

denied, 575 U.S. 925, 135 S. Ct. 1579, 191 L. Ed. 2d 660

(2015). The petitioner struck a deal, the terms of which

were unambiguous, and he is now seeking to retain the

benefits of the bargain while reneging on his commitments to not withdraw his guilty plea and serve a sixty

year sentence. See United States v. Bradley, supra, 400

F.3d 465 (‘‘[h]aving voluntarily and knowingly bargained for a decrease in the number of counts charged

against him and for a decreased sentence, [the defendant] cannot now extract two components of that bargain . . . on the basis of changes in the law after that

bargain was struck’’). As succinctly stated by the United

States Court of Appeals for the Second Circuit, ‘‘contract principles [simply] do not support [the petitioner’s] attempt to have his cake and eat it, too.’’ (Internal

quotation marks omitted.) United States v. Roque,

supra, 421 F.3d 124.
II

We next turn to a discussion of factually related precedent from other jurisdictions that informs our application of the frustration of purpose doctrine to the petitioner’s plea agreement. We begin by addressing two

lines of cases in which courts have excused a party’s

performance under a plea agreement pursuant to the

frustration of purpose doctrine. In the first line of cases,

the frustrating event at issue was a change in the law

subsequent to a criminal defendant’s guilty plea. These

cases are fundamentally distinguishable, however,

because the change in the law affected the criminality

of the conduct for which the defendant pleaded guilty.

For instance, in United States v. Bunner, 134 F.3d 1000

(10th Cir.), cert. denied, 525 U.S. 830, 119 S. Ct. 81, 142

L. Ed. 2d 64 (1998), after the defendant had served three

years of a five year sentence, the United States Supreme

Court issued a decision; Bailey v. United States, 516

U.S. 137, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995); under

which the facts supporting the defendant’s plea no

longer constituted a crime. The defendant successfully

moved to vacate his sentence pursuant to 28 U.S.C.

§ 2255.13 See United States v. Bunner, supra, 1002. The

government then moved to reinstate the counts of the

original indictment that it had dismissed in exchange

for the defendant’s guilty plea. The United States Court

of Appeals for the Tenth Circuit ruled that it was proper

for the District Court to allow the government to reinstate the counts previously dismissed because the vacatur frustrated the government’s principal purpose for

entering the plea agreement. Id., 1003; see also United

States v. Moulder, 141 F.3d 568, 572 (5th Cir. 1998)

(‘‘[T]he parties’ assumptions and obligations were

altered by Bailey and the subsequent successful [28

U.S.C.] § 2255 challenges. As a result of those events

the underlying purpose of the [plea] agreement [was]

frustrated and the basis of the government’s bargain

[was] destroyed. Thus, under the frustration of purpose

doctrine, the government’s plea agreement obligations

became dischargeable.’’ (Internal quotation marks omitted.)); United States v. Samuels, 454 F. Supp. 3d 595,

602–603 (E.D. Va. 2020) (‘‘[U]nder the frustration of

purpose doctrine, the [g]overnment’s obligations under

the plea agreement would become dischargeable should

[the d]efendant successfully vacate his . . . convictions by way of his [28 U.S.C.] § 2255 [m]otion. . . .

Then . . . the [g]overnment could move to reinstate

the [i]ndictment . . . .’’ (Citations omitted.)), cert.

pending, United States Court of Appeals, Docket No.

20-6894 (4th Cir. June 17, 2020). The subsequent change

in the law that forms the basis for the petitioner’s claim

in the present case did not render legal the conduct for

which the petitioner pleaded guilty.

In a second line of cases in which the frustration of

purpose doctrine has been applied to plea agreements,
courts have held that the principal purpose of the agreement was substantially frustrated when the specific

terms of the agreement were not actually imposed. See

United States v. Thompson, 237 F.3d 1258, 1260–61

(10th Cir.) (federal government charged defendant with

crime and defendant entered into plea agreement with

government to plead guilty in Oklahoma state court and

be sentenced to ten years of imprisonment, but when

state failed to charge defendant within applicable statute of limitations, government no longer bound by plea

agreement), cert. denied, 532 U.S. 987, 121 S. Ct. 1637,

149 L. Ed. 2d 497 (2001); United States v. Jureidini,

846 F.2d 964, 965 (4th Cir. 1988) (parties agreed that

for purposes of parole consideration defendant would

be classified as having committed category six offense

but parole board placed him in category eight); see also

United States v. Torres, 926 F.2d 321, 322, 325–26 (3d

Cir. 1991) (parties agreed that defendant’s sentencing

range was to be based on lesser quantity of drugs than

that which court ultimately relied when sentencing

defendant); United States v. Kemper, 908 F.2d 33, 37

(6th Cir. 1990) (same). These cases are readily distinguishable because, here, the court imposed the agreed

upon sentence, and there is no claim that the agreement

has been breached.

The cases that are most instructive to our analysis

of the assumption of risk prong of the frustration of

purpose doctrine involve defendants charged with a

capital felony, who pleaded guilty to avoid capital punishment, and, after a subsequent change in the law

that would have rendered them ineligible for the death

penalty if the new law was in place at the time they

were charged, sought to withdraw the guilty plea.14

For example, in Dingle v. Stevenson, 840 F.3d 171,

172–73 (4th Cir. 2016), cert. denied, U.S. , 137 S.

Ct. 2094, 197 L. Ed. 2d 897 (2017), the defendant, who

was seventeen years old when he pleaded guilty to

several charges to avoid the death penalty, sought to

invalidate his plea after the United States Supreme

Court held, in Roper v. Simmons, 543 U.S. 551, 125 S.

Ct. 1183, 161 L. Ed. 2d 1 (2005), that imposing capital

punishment on juvenile offenders was a violation of the

eighth amendment to the United States constitution.

The United States Court of Appeals for the Fourth Circuit rejected the defendant’s claim, holding that Roper

could not be applied retroactively to invalidate the

defendant’s guilty plea. Dingle v. Stevenson, supra, 175.

In reaching this conclusion, the court reasoned: ‘‘Contracts in general are a bet on the future. Plea bargains

are no different: a classic guilty plea permits a defendant

to gain a present benefit in return for the risk that he

may have to [forgo] future favorable legal developments. [The defendant] received that present benefit—

avoiding the death penalty and life without parole—

under the law as it existed at the time. Although Roper,
in hindsight, altered the calculus underlying [the defendant’s] decision to accept a plea agreement, it does

not undermine the voluntariness of his plea. . . . [T]he

tradeoff between present certainty and future uncertainty is emblematic of the process of plea bargaining.

Brady [v. United States, 397 U.S. 742, 90 S. Ct. 1463,

25 L. Ed. 2d 747 (1970)] makes all that exceptionally

clear . . . .’’ Dingle v. Stevenson, supra, 840 F.3d

175–76; see also Brant v. State, 830 S.E.2d 140, 142 (Ga.

2019) (rejecting claim by defendant, who was seventeen

years old when he entered plea agreement to avoid

possibility of receiving death penalty, that his plea was

rendered involuntary by Roper).

Indeed, in Brady, the Supreme Court ruled that the

petitioner, who was charged with kidnapping pursuant

to 18 U.S.C. § 1201 (a), and had pleaded guilty to avoid

the death penalty, was not entitled to withdraw his

guilty plea in light of the court’s subsequent holding in

United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209,

20 L. Ed. 2d 138 (1968), that 18 U.S.C. § 1201 (a) was

unconstitutional. Brady v. United States, supra, 397

U.S. 743–45. The court reasoned, inter alia: ‘‘Often the

decision to plead guilty is heavily influenced by the

defendant’s appraisal of the prosecution’s case against

him and by the apparent likelihood of securing leniency

should a guilty plea be offered and accepted. Considerations like these frequently present imponderable questions for which there are no certain answers; judgments

may be made that in the light of later events seem

improvident, although they were perfectly sensible at

the time. . . .

‘‘A defendant is not entitled to withdraw his plea

merely because he discovers long after the plea has

been accepted that his calculus misapprehended the

quality of the [s]tate’s case or the likely penalties

attached to alternative courses of actions. More particularly, absent misrepresentation or other impermissible

conduct by state agents . . . a voluntary plea of guilty

intelligently made in the light of the then applicable

law does not become vulnerable because later judicial

decisions indicate that the plea rested on a faulty premise.’’ (Citation omitted.) Id., 756–57. In other words,

‘‘[a] plea of guilty triggered by the expectations of a

competently counseled defendant that the [s]tate will

have a strong case against him is not subject to later

attack because the defendant’s lawyer correctly advised

him with respect to the then existing law as to possible

penalties but later pronouncements of the courts, as in

this case, hold that the maximum penalty for the crime

in question was less than was reasonably assumed at

the time the plea was entered.’’ Id., 757.

As Dingle, Brant, and Brady illustrate, an individual

cannot withdraw a guilty plea merely because a subsequent change in the law renders the maximum penalty

for the crime in question less than was reasonably
assumed at the time the plea was entered—even when

the maximum penalty at issue was death. The natural

implication of these cases is that a criminal defendant

who negotiates a plea agreement ‘‘in the shadow of the

death penalty’’ assumes the risk that the law subsequently could change such that the death penalty is no

longer a permissible punishment for the crime(s) for

which the defendant originally was charged. Dingle v.

Stevenson, supra, 840 F.3d 174.

As in Brady, the petitioner here may have miscalculated the likely penalties attached to alternative courses

of action. Despite being aware that it was possible that

the state someday might abolish the death penalty, the

petitioner and his counsel possibly misjudged the likelihood of this happening at some point while he was

serving his sixty year sentence. Any such miscalculation, however, does not provide a basis to grant habeas

relief to the petitioner regarding his guilty plea. See

State v. Reid, 277 Conn. 764, 788–89, 894 A.2d 963 (2006)

(‘‘[I]mperfect knowledge of future developments in the

law has no bearing on the validity of a [guilty plea].

. . . More than [thirty] years later the Supreme Court

reaffirmed Brady and explained that the [c]onstitution

. . . permits a court to accept a guilty plea, with its

accompanying waiver of various constitutional rights,

despite various forms of misapprehension under which

a defendant might labor.’’ (Citation omitted; internal

quotation marks omitted.)), citing Brady v. United

States, supra, 397 U.S. 742, and United States v. Ruiz,

536 U.S. 622, 630, 122 S. Ct. 2450, 153 L. Ed. 2d 586

(2002). Accordingly, we conclude that the petitioner

has failed to satisfy the assumption of risk prong of the

frustration of purpose doctrine and, therefore, is not

entitled to any relief.

III

Finally, our conclusion that the petitioner’s guilty

plea cannot be withdrawn pursuant to the frustration

of purpose doctrine is buttressed by two policy rationales: (1) fundamental fairness; and (2) our Supreme

Court’s refusal to adopt the amelioration doctrine. We

address each of these in turn.

Our habeas corpus statute, General Statutes § 52-470

(a), requires that ‘‘the court or judge hearing any habeas

corpus shall . . . dispose of the case as law and justice

require.’’ See Summerville v. Warden, 229 Conn. 397,

415, 641 A.2d 1356 (1994). Here, if we were to hold that

the petitioner is entitled to vacate his plea agreement,

it would work a substantial injustice on the state. That

is, the case would be returned to the criminal trial court

for plea negotiations, in which the petitioner would

enjoy a much greater degree of leverage than in the

first negotiation because of the numerous difficulties

attendant to securing a conviction at trial nearly twenty

years after the crime was committed. During this time,

evidence has become stale, memories have faded, and
witnesses may no longer be available. See State v. Coleman, 202 Conn. 86, 91, 519 A.2d 1201 (1987) (noting

that unduly delayed trial creates ‘‘potential for inaccuracy and unfairness that stale evidence and dull memories may occasion’’ (emphasis in original; internal quotation marks omitted)). Requiring the state to negotiate

at such a disadvantage, and actually proceed to trial

if the plea negotiations were unsuccessful, would be

fundamentally unfair to the state, which, according to

the petitioner’s own trial counsel, had a significant likelihood of securing a conviction against the petitioner

in 2004. This concern about fundamental fairness to

both sides further supports our decision to leave undisturbed the parties’ original allocation of risk in the plea

agreement and to require the petitioner to perform his

obligations accordingly.

In addition, because our Supreme Court repeatedly

has refused to adopt the amelioration doctrine, it would

be improper to vacate the petitioner’s guilty plea pursuant to the frustration of purpose doctrine in this

instance where it would accomplish the same objective.

In State v. Kalil, 314 Conn. 529, 107 A.3d 343 (2014), our

Supreme Court discussed that doctrine and declined to

adopt it, stating: ‘‘In criminal cases, to determine

whether a change in the law applies to a defendant, we

generally have applied the law in existence on the date

of the offense . . . . This principle is derived from the

legislature’s enactment of saving statutes such as General Statutes § 54-194, which provide that [t]he repeal

of any statute defining or prescribing the punishment

for any crime shall not affect any pending prosecution

or any existing liability to prosecution and punishment

therefor, unless expressly provided in the repealing statute that such repeal shall have that effect . . . . The

amelioration doctrine, [however], provides that amendments to statutes that lessen their penalties are applied

retroactively . . . . [T]his court has not previously

held that ameliorative changes to criminal statutes

apply retroactively . . . and we decline to do so in the

present case because the doctrine is in direct contravention of Connecticut’s savings statutes.’’ (Citations omitted; footnote omitted; internal quotation marks omitted.) Id., 552–53; see also State v. Bischoff, Conn.

, A.3d (2021) (declining invitation to overrule

Kalil and adopt amelioration doctrine).

By holding that the petitioner cannot withdraw his

guilty plea and be resentenced in accordance with the

plea that would have been negotiated if the death penalty had been unavailable, we are effectively requiring

adherence to the law that was in existence on the date

of the offense. Stated differently, to allow the petitioner

to be resentenced, in accordance with the plea that

would have been negotiated if the death penalty was

not available at the time of the offense, would be the

functional equivalent of applying the amelioration doctrine because it would allow the petitioner to benefit
from the retroactive application of a law that lessened

the penalty for the crimes for which he originally was

charged. Because our Supreme Court unequivocally has

rejected the amelioration doctrine, it likewise is proper

for us to decline the petitioner’s invitation to reach the

same result by virtue of the frustration of purpose

doctrine.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The habeas court granted the petitioner certification to appeal from

the judgment.

2 Specifically, the petitioner challenges the habeas court’s conclusion that

he failed to satisfy two of the four prongs of the frustration of purpose test:

(1) the event substantially frustrated his principal purpose for entering into

the plea agreement; and (2) he did not assume the risk that the event

would occur.

3 We rely on the facts as found and as set forth by the habeas court in

its memorandum of decision as well as on undisputed facts disclosed in

the record.

4 The law in existence at the time was as follows: ‘‘Capital felony trials

are divided into two phases: the guilt phase and the penalty phase. . . . In

the penalty phase . . . the jury is charged with both fact-finding and nonfact-finding tasks. . . . Its fact-finding task involves determining whether

the state has established the facts of an aggravant beyond a reasonable

doubt and whether the defendant has established the facts of a mitigant by

a preponderance of the evidence. . . . Its nonfact-finding task involves

determining, based on its reasoned and moral judgment, whether: (1) the

factually established mitigant is mitigating in nature; and (2) the aggravant

outweighs the mitigant. . . . Following this weighing process, the jury must

ultimately determine whether the defendant shall live or die, which requires

the jury to make a reasoned moral and individualized determination that

death is the appropriate punishment in the case.’’ (Citations omitted; internal

quotation marks omitted.) Peeler v. Commissioner of Correction, 170 Conn.

App. 654, 664 n.6, 155 A.3d 772, cert. denied, 325 Conn. 901, 157 A.3d

1146 (2017).

Moreover, the sentencing statute for capital felonies committed prior to

April 25, 2012, General Statutes § 53a-46a, provides in relevant part: ‘‘(d) In

determining whether a mitigating factor exists concerning the defendant’s

character, background or history, or the nature and circumstances of the

crime . . . the jury or, if there is no jury, the court shall first determine

whether a particular factor concerning the defendant’s character, background or history, or the nature and circumstances of the crime, has been

established by the evidence, and shall determine further whether that factor

is mitigating in nature, considering all the facts and circumstances of the

case. Mitigating factors are such as do not constitute a defense or excuse

for the capital felony of which the defendant has been convicted, but which,

in fairness and mercy, may be considered as tending either to extenuate or

reduce the degree of his culpability or blame for the offense or to otherwise

constitute a basis for a sentence less than death.’’ In addition, the aggravating

factors to be considered include, inter alia, whether ‘‘the defendant committed the offense in an especially heinous, cruel or depraved manner . . . .’’

General Statutes § 53a-46a (i) (4).

5 The petitioner was thirty years old when he was arrested. Attorney

Butler noted that, in light of his age, a sixty year sentence is effectively a

life sentence.

6 The court denied the respondent’s motion to dismiss in the same decision,

finding that there was no procedural default on the petitioner’s part. In

addition, with regard to habeas jurisdiction, the court determined that

because the petitioner is seeking a judgment vacating his conviction, if he

proves his claim ‘‘it may warrant habeas relief.’’ The court also suggested

that habeas review is proper because the petitioner’s claim, like claims

of ineffective assistance of counsel, requires further record development,

including testimony about the intent of the parties in entering into the

agreement and their assumptions of risk while doing so, and ‘‘this cannot

be discerned from the record of the trial proceedings below.’’ Specifically,

the court reasoned ‘‘our courts have a well established practice of deferring

review . . . to collateral review by habeas corpus in order to allow for
necessary record development.’’ (Internal quotation marks omitted.) On

appeal, the respondent does not contend that the habeas court improperly

determined that it had jurisdiction over the amended petition, therefore,

we do not address this issue further.

7 Specifically, the court found that ‘‘the [petitioner’s] purposes for entering

into this plea were to avoid the death penalty and to avoid a conviction

on a sexual assault charge.’’ (Emphasis added.) Moreover, the court reasoned that performance of the agreement ‘‘is not worthless’’ to the petitioner

because ‘‘he still avoids a sexual assault conviction and a potential sentence

of up to 100 years.’’

8 The court concluded that the petitioner had satisfied the other two

prongs of the test, namely (1) the nonoccurrence of the supervening event

was a basic assumption on which the contract was made, and (2) the

frustration resulted without the fault of the party seeking to be excused.

See Howard-Arnold, Inc. v. T.N.T. Realty, Inc., 315 Conn. 596, 605, 109

A.3d 473 (2015).

9 The paradigmatic example of an instance in which a party is entitled to

relief under the frustration of purpose doctrine is Krell v. Henry, 2 K.B. 740

(1903), the case in which this doctrine was first recognized. See DDS Wireless

International, Inc. v. Nutmeg Leasing, Inc., 145 Conn. App. 520, 526, 75

A.3d 86 (2013). In Krell, a spectator entered into a contract to rent an

apartment for the purpose of viewing the procession for the coronation of

King Edward VII. See id. The king became ill, the procession was cancelled,

and the spectator refused to pay for the rental. See id. When the apartment

owner sued for breach of contract, the court excused the spectator’s breach,

holding that the coronation procession was the foundation of the contract.

See id. ‘‘The court implicitly determined that had the parties contemplated

the possibility of the coronation being cancelled, they would have included

a provision in the contract allowing the spectator to terminate the contract

under those circumstances.’’ Id.

10 The petitioner’s trial counsel, Attorney Fred DeCaprio, testified, and

the habeas court made a factual finding, that one of the petitioner’s considerations with regard to pleading guilty included avoiding the stress of a capital

trial on himself and his family.

11 The petitioner argues that he did not assume the risk of the abolition

of the death penalty because this topic was not explicitly discussed during

the court’s canvass of him. In essence, the petitioner argues that, in the

absence of a specific provision of his plea agreement that required him to

serve the agreed upon sentence even if the death penalty was later abolished,

he cannot be deemed to have assumed that risk. We disagree.

‘‘[A] voluntary and intelligent guilty plea operates as a waiver of all nonjurisdictional defects. . . . A plea of guilty is, in effect, a conviction, the

equivalent of a guilty verdict by a jury. . . . In choosing to plead guilty, the

defendant is waiving several constitutional rights . . . . The . . . constitutional essentials for the acceptance of a plea of guilty are included in our

rules and are reflected in Practice Book §§ [39-19 and 39-20]. . . . The

failure to inform a defendant as to all possible indirect and collateral consequences does not render a plea unintelligent or involuntary in a constitutional

sense.’’ (Citation omitted; internal quotation marks omitted.) State v. Reid,

277 Conn. 764, 780, 894 A.2d 963 (2006).

Specifically, ‘‘[t]he rules governing the acceptance of guilty pleas, set forth

in Practice Book §§ 39-19 and 39-20, provide that the trial court must not

accept a guilty plea without first addressing the defendant personally in

open court and determining that the defendant fully understands the items

enumerated in § 39-19, and that the plea is made voluntarily pursuant to

§ 39-20. There is no requirement, however, that the defendant be advised

of every possible consequence of such a plea. . . . Although a defendant

must be aware of the direct consequences of such a plea, the scope of direct

consequences is very narrow. . . . In Connecticut, the direct consequences

of a defendant’s plea include only the mandatory minimum and maximum

possible sentences; Practice Book § [39-19 (2) and (4)]; the maximum possible consecutive sentence; Practice Book § [39-19 (4)]; the possibility of

additional punishment imposed because of previous conviction(s); Practice

Book § [39-19 (4)]; and the fact that the particular offense does not permit

a sentence to be suspended. Practice Book § [39-19 (3)] . . . .’’ (Internal

quotation marks omitted.) State v. Greene, 274 Conn. 134, 145, 874 A.2d 750

(2005), cert. denied, 548 U.S. 926, 126 S. Ct. 2981, 165 L. Ed. 2d 988 (2006).

Here, the court’s canvass was more than adequate. The canvass went beyond

apprising the petitioner of the direct consequences of his plea, even though

it was not required to do so.
Moreover, the authority on which the petitioner premises his argument

does not set forth the stringent standard for which he advocates. It merely

requires the state, ‘‘as the drafting party wielding disproportionate power,

[to] memorialize any and all obligations for which it holds the defendant

responsible. . . . The terms of the agreement should be stated clearly and

unambiguously, so that the defendant . . . knows what is expected of him

and what he can expect in return.’’ State v. Kallberg, supra, 326 Conn.

23. Kallberg also is factually distinguishable, in that the terms of the plea

agreement at issue there were ambiguous. See id., 19. In contrast, the terms

of the agreement here unambiguously set forth the petitioner’s obligations,

specifically that once the court accepted the petitioner’s guilty plea and

sentenced him to the agreed upon sixty year term of incarceration, he was

waiving his right to appeal, prohibited from withdrawing his plea regardless

of whether he later changed his mind, and required to serve every day of

his sixty year sentence. The state is not required to specifically address all

possible contingencies in a plea agreement, particularly when the terms of

the agreement make clear that the parties intended for any such future

events to not affect the petitioner’s obligations.

12 That Attorney Butler discussed this possibility with the petitioner is

one of the habeas court’s findings of fact. The court went on to conclude,

with regard to the second prong of the frustration of purpose doctrine, that

the abolition of the death penalty was not reasonably foreseeable, was not

contemplated, and could not have been anticipated by the parties. We do

not need to address the propriety of those conclusions in light of our determination that the petitioner has not satisfied the assumption of risk prong of

the frustration of purpose doctrine.

13 Title 28 of the United States Code, § 2255, provides in relevant part:

‘‘(a) A prisoner in custody under sentence of a court established by Act of

Congress claiming the right to be released upon the ground that the sentence

was imposed in violation of the Constitution or laws of the United States,

or that the court was without justification to impose such sentence, or that

the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the

sentence to vacate, set aside or correct the sentence.’’

14 The defendants in these cases did not base their claims on the frustration

of purpose doctrine. Instead, they all argued that their guilty pleas were

rendered involuntary by a subsequent change in the law that made the death

penalty inapplicable to them. Here, the petitioner makes no such claim

regarding the voluntariness of his plea. Nevertheless, the reasoning underlying these cases applies with equal force here.