State v. Mercer

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STATE OF CONNECTICUT v. LEON MERCER
(AC 40875)
Lavine, Prescott and Bright, Js.

Syllabus

Convicted of the crimes of sexual assault in the first degree and unlawful
restraint in the first degree, the defendant appealed to this court. He
claimed that he was deprived of his constitutional rights to due process
and effective assistance of counsel during the plea bargaining stage of
the proceedings because the state initially charged him with a crime
predicated on its misunderstanding of the victim’s age. Held that the
record lacked basic information required for a review of the defendant’s
claim and, thus, was inadequate to conduct a meaningful review of his
claim: the defendant did not cite a single specific instance of deficient
performance by his trial counsel and, instead, argued that the plea offer
to him was probably more severe than what it would have been if the
victim’s true age had been known to the court and the prosecutor, and
that his trial counsel was unable to provide competent legal assistance
because he was proceeding on the basis of misinformation about the
charges, and there was no evidence showing that, even if a more favor-
able plea offer had been made, the defendant would have accepted it;
moreover, an evidentiary hearing in the proper forum would provide
the trier of fact with the evidence that is necessary to evaluate the
competency of the assistance of counsel and the harmfulness, if any,
to the defendant due to any deficiency in counsel’s performance.
Argued May 21—officially released July 16, 2019

Procedural History

Substitute information charging the defendant with
the crimes of sexual assault in the first degree and
unlawful restraint in the first degree, brought to the
Superior Court in the judicial district of Fairfield, geo-
graphical area number two, and tried to the jury before
Dennis, J.; verdict and judgment of guilty, from which
the defendant appealed to this court. Affirmed.
Richard Emanuel, for the appellant (defendant).
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were John Smriga, state’s
attorney, and Marc Durso, senior assistant state’s attor-
ney, for the appellee (state).
Opinion

LAVINE, J. The defendant, Leon Mercer, appeals from
the judgment of conviction, rendered following a jury
trial, of sexual assault in the first degree in violation
of General Statutes § 53a-70 (a) (1) and unlawful
restraint in the first degree in violation of General Stat-
utes § 53a-95. On appeal, the defendant claims that he
was deprived of his constitutional rights to due process
and effective assistance of counsel during the plea bar-
gaining stage of the proceedings because the state ini-
tially charged him with a crime predicated on its
misunderstanding of the victim’s age.1 We are unable
to reach the merits of the defendant’s appeal due to an
inadequate record. Accordingly, we affirm the judgment
of the trial court.
The following facts, as reasonably could have been
found by the jury, procedural history, and information
relating to the defendant’s charges are relevant to our
resolution of this appeal. On April 4, 2014, the defendant
and his wife, Andrea Mercer (Mercer) were with
Tangela S. (Tangela),2 Mercer’s half-sister, and other
guests, at Tangela’s apartment. They all left the apart-
ment to drink wine at the Ramada Inn, leaving Tangela’s
six children, including the sixteen year old victim, and
the two children of one of the guests in the apartment.
The adults returned from the Ramada Inn at approxi-
mately 1 a.m. on April 5, 2014. The victim awoke when
they entered.
The defendant was drunk, behaving in an obnoxious
manner, and insulting Mercer. One of the other guests
told him to leave, and the defendant stated that he was
going to his car. Instead of leaving the apartment and
going to his car, however, the defendant entered the
bedroom where the victim was located. He and the
victim engaged in conversation before the defendant
pulled the covers off the victim’s legs and started rub-
bing them. The victim repeatedly tucked the blankets
back under her in an effort to stop the defendant from
rubbing her legs and told the defendant to leave. The
defendant pulled the covers off her, turned her over,
put his hand over her nose and mouth, unbuttoned her
pants, and forcibly touched her clitoris. Not long after,
Tangela and Mercer walked down the hallway toward
the bedroom. The defendant jumped up, rushed out of
the bedroom, and quickly left the apartment. The victim
told her mother what the defendant had done, and
Tangela reported it to the police.
On August 27, 2015, the defendant was arrested.
Because the state thought that the victim was under
the age of sixteen at the time of the incident, the state’s
September 14, 2015 long form information charged the
defendant with sexual assault in the first degree in
violation of § 53a-70 (a) (1), unlawful restraint in the
first degree in violation of § 53a-95, and risk of injury
to a child in violation of General Statutes § 53-21 (a)
(2). The age of the victim is an important factor in
determining the severity of the charges. Sexual assault
in the first degree, in violation of § 53a-70 (a) (1), is a
class A felony, rather than class B, if the victim is under
the age of sixteen,3 and a necessary element for the
charge of risk of injury to a child in violation of § 53-
21 (a) (2) is that the victim is under sixteen.4
On March 11, 2016, the defendant rejected a plea
offer of ten years incarceration, execution suspended
after four years, in connection with those three charges
and proceeded to trial. On April 27, 2017, the first day
of jury selection, the state filed a substitute long form
information in which it additionally charged the defen-
dant with sexual assault in the fourth degree for ‘‘sub-
ject[ing] another person, under sixteen (16) years of
age, to sexual contact without such person’s consent’’
in violation of General Statutes § 53a-73a (a) (2).5 It was
not until after court adjourned for the day on April
27, 2017, that the state confirmed that the victim was
sixteen—not fifteen as it had previously erroneously
believed—at the time of the incident.
On April 28, 2017, the second day of jury selection,6
the state filed a substitute amended information that
charged the defendant with sexual assault in the first
degree in violation of § 53a-70 (a) (1), sexual assault in
the fourth degree for in violation of § 53a-73a (a) (2),7
and unlawful restraint in the first degree in violation
of § 53a-95, correcting the charges as to the victim’s age.
Following a trial, the jury found the defendant guilty
of sexual assault in the first degree and unlawful
restraint in the first degree. The court sentenced the
defendant to a total effective term of twelve years of
incarceration, execution suspended after five years, two
years of which were mandatory, and ten years of proba-
tion. The defendant appealed.
The defendant’s overarching claim on appeal is that
he was deprived of his right to effective assistance of
counsel. ‘‘Our Supreme Court has held that, [a]lmost
without exception . . . a claim of ineffective assis-
tance of counsel must be raised by way of habeas cor-
pus, rather than by direct appeal, because of the need
for a full evidentiary record for such [a] claim. . . .
Absent the evidentiary hearing available in the collat-
eral action, review in this court of the ineffective assis-
tance claim is at best difficult and sometimes
impossible. The evidentiary hearing provides the trial
court with the evidence which is often necessary to
evaluate the competency of the defense and the harm-
fulness of any incompetency. . . . [O]n the rare occa-
sions that we have addressed an ineffective assistance
of counsel claim on direct appeal . . . we have limited
our review to situations in which the record of the
trial court’s allegedly improper action was adequate for
review or the issue presented was a question of law,
not one of fact requiring further evidentiary develop-
ment. . . . Our role . . . is not to guess at possibili-
ties, but to review claims based on a complete factual
record developed by a trial court. Without a hearing
. . . any decision of ours . . . would be entirely specu-
lative.’’ (Citations omitted; emphasis in original; internal
quotation marks omitted.) State v. Leon, 159 Conn. App.
526, 531–32, 123 A.3d 136, cert. denied, 319 Conn. 949,
125 A.3d 529 (2015).
The defendant does not cite a single specific instance
of deficient performance by his trial counsel. Rather,
he argues that the plea offer was ‘‘probably more severe
than what would have been offered if the [victim’s] true
age had been known to the court and [the] prosecutor,’’
and that his counsel was unable to render competent
legal assistance during the plea bargaining process
because ‘‘the attorney [was] proceeding on the basis of
misinformation about the charges—and possible pen-
alties.’’
As previously stated in this opinion, an evidentiary
hearing in the proper forum provides a trier of fact with
the evidence that is necessary to evaluate the compe-
tency of the assistance of counsel and the harmfulness,
if any, to the defendant due to any deficiency in coun-
sel’s performance. See id. In the present case, the record
is lacking basic information required for us to review the
defendant’s claim—especially as we have no evidence
before us that, even if a more favorable plea offer had
been made, as the defendant argues and speculates, he
would have accepted it.
We, therefore, conclude that the record is inadequate
for us to conduct a meaningful review.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant’s due process claim is integrated within his claim of
ineffective assistance of counsel and is not raised or briefed separately. We,
therefore, construe and address the claim as a claim of ineffective assistance
of counsel. See Duncan v. Commissioner of Correction, 171 Conn. App.
635, 669, 157 A.3d 1169, cert. denied 325 Conn. 923, 159 A.3d 1172 (2017).
2
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
3
General Statutes § 53a-70 (b) (2) provides in relevant part: ‘‘Sexual assault
in the first degree is a class A felony if the offense is a violation of subdivision
(1) of subsection (a) of this section and the victim of the offense is under
sixteen years of age . . . .’’ See also General Statutes § 53a-70 (b) (1)
(‘‘[e]xcept as provided in subdivision (2) of this subsection, sexual assault
in the first degree is a class B felony’’).
4
General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who
. . . (2) has contact with the intimate parts, as defined in section 53a-65,
of a child under the age of sixteen years or subjects a child under sixteen
years of age to contact with the intimate parts of such person, in a sexual
and indecent manner likely to impair the health or morals of such child
. . . shall be guilty of . . . a class B felony . . . .’’
5
General Statutes § 53a-73a (b) provides: ‘‘Sexual assault in the fourth
degree is a class A misdemeanor or, if the victim of the offense is under
sixteen years of age, a class D felony.’’
6
We note that on the first day of jury selection, three venirepersons were
asked whether the fact that the victim was under the age of sixteen would
create a problem for them. Of the three venirepersons, the state and defense
each exercised a preemptory challenge, and one venireperson was accepted
as the first juror.
On appeal, the defendant raises an ‘‘incidental’’ claim that the error in
the victim’s age ‘‘may’’ have affected the exercise of peremptory challenges.
(Emphasis in original.) Because defense counsel did not raise this issue in
the trial court, and the record before us regarding the preemptory challenges
is inadequate for review, we do not address it.
7
The state later withdrew the charge of sexual assault in the fourth degree
because the statute of limitations had expired.