Opinion
No. CV 000800393
September 24, 2009
MEMORANDUM OF DECISION AS TO MOTION FOR SUMMARY JUDGMENT
The issue before the court is whether the defendant is entitled to summary judgment by reason of the statute of limitations because the plaintiff failed to serve his petition for a new trial within three years of his sentencing or if the presentation of the petition to prison authorities for mailing to the court within the three-year period constitutes bringing the petition for the purposes of General Statutes § 52-582. The court finds that service of the petition within three years of the date of sentencing is required, that it did not occur and summary judgment for the defendant is granted.
There are apparently no recorded Connecticut decisions on this issue.
Judgment in the underlying criminal case entered against the plaintiff, Lance A. Wargo, on January 3, 1997 when he was sentenced to a term of fifty years incarceration, following his conviction on multiple charges, including the murder of his spouse, arson of his family home, risk of injury to his two children and tampering with evidence. At all times relevant to this motion, he was in the custody of the department of correction.
See State v. Wargo, 53 Conn.App. 747, 731 A.2d 768 (1999) and State v. Wargo, 255 Conn. 113, 763 A.2d 1 (2000).
Alleging the existence of newly discovered exculpatory evidence, the plaintiff, acting pro se, prepared a petition for a new trial and gave it to a prison staff member on December 27, 1999, with instructions to mail it to the Superior Court. A review of the file discloses that the original of said petition, lacking a writ of summons and carrying the docket number of his criminal case, was first date stamped at the judicial district of Hartford criminal courthouse, with Wargo's cover letter, on January 6, 2000. No fee waiver application accompanied the petition.
A memo in the file from a criminal clerk indicates that the petition was stamped when reviewed but may have been received by the criminal clerk's office before that date. The plaintiff's affidavit, with appended U.S.P.S. return receipt card, indicates that a copy of the petition, mailed by his father, was received by the criminal court clerk's office on January 3, 2000.
An amendment to the petition was filed on February 3, 2000. On February 8, 2000, the plaintiff filed a fee waiver application, which was subsequently granted. On March 29, 2000, a writ of summons issued, listing Lance A. Wargo as the plaintiff and James E. Thomas, State's Attorney, as the defendant. A deputy sheriff served the summons and the petition on the defendant on April 12, 2000. In August 2000, counsel appeared for the plaintiff.
The defendant filed an answer on March 20, 2007, raising the statute of limitations as a special defense. On August 8, 2007, the defendant filed the present motion for summary judgment.
In his motion for summary judgment, the defendant argues that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law because the plaintiff brought his petition outside of the three-year limitation period set forth in General Statutes § 52-582. On September 21, 2007, the plaintiff filed a memorandum in opposition to the motion for summary judgment. The court heard the motion at short calendar on June 1, 2009.
The matter was heard in a courtroom with an audio/video link to MacDougall prison, so that the plaintiff could observe the proceedings.
"Practice Bock § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
Under General Statutes §§ 54-95 and 52-270 and Practice Book § 42-55, a defendant in a criminal case may bring a petition for a new trial on the ground that there is newly discovered evidence. See Small v. State, 101 Conn.App. 213, 217, 920 A.2d 1024 (2007), appeal dismissed, 290 Conn. 128, 962 A.2d 80 (2009). "A petition for a new trial is collateral to the action in which a new trial is sought . . . In an action on a petition for new trial, a petitioner is not a criminal defendant but rather is a civil petitioner." (Citation omitted.) Id. General Statutes § 52-582 provides: "No petition for a new trial in any civil or criminal proceeding shall be brought but within three years next after the rendition of the judgment or decree complained of . . ." The judgment is considered rendered in a criminal case on the date the defendant is sentenced. Summerville v. Warden, 229 Conn 397, 426, 641 A.2d 1356 (1994).
The defendant argues that the plaintiff's action is barred by § 52-582. Specifically, the defendant asserts that the plaintiff failed to serve the petition on the defendant until April 12, 2000, more than three years after January 3, 1997, when the plaintiff was sentenced. The plaintiff responds that because he was incarcerated and without counsel at the time, his action should have been considered "brought" when he handed the petition to the prison authorities to be mailed to the court on December 27, 1999, a date which is within the three-year limitation period.
Based on the evidence presented, there is no genuine issue of material fact and the defendant is entitled to judgment as a matter of law. "[A] petition for a new trial is instituted by writ and complaint served upon the adverse party in the same manner as in any other new action. Although the action so started is collateral to the action in which the new trial is sought, it nevertheless is a distinct suit in itself." Hoberman v. Lake of Isles, Inc., 138 Conn. 573, 576, 87 A.2d 137 (1952). "It is well settled that an action is brought on the date on which the writ is served on a defendant." Howard v. Robertson, 27 Conn.App. 621, 625, 608 A.2d 711 (1992). To satisfy the statute of limitations, the necessary papers must be served upon the defendant prior to the expiration of the limitation period. See id., 624. It is undisputed that the plaintiff was sentenced on January 3, 1997. It is further undisputed that the defendant was not served with process until April 12, 2000, more than three years and three months later. Therefore, the three-year limitation period found in § 52-582 expired before the plaintiff commenced the action.
The plaintiff's argument for a different interpretation of § 52-582, when the plaintiff is both pro se and incarcerated, is unpersuasive. He cites no Connecticut law in support of his contention that the court should consider a petition for a new trial to be "brought" by an incarcerated, pro se plaintiff when it is delivered to the prison authorities for mailing to the Superior Court. Instead, he relies upon Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). In Houston, the U.S. Supreme Court considered a notice of appeal under Federal Rule of Appellate Procedure 4(a)(1) to be timely filed when given to prison authorities for mailing several days before the filing deadline, although received by the district court the day after the deadline. Where the pro se prisoner had only thirty days to file his notice of appeal, the court interpreted the term "filing" under the Federal Rules of Appellate Procedure to include delivery of the notice to prison authorities. The court's rationale was that the prisoner was not responsible for any delay in mailing it. See Houston v. Lack, supra, 487 U.S. 270-76.
This situation is not analogous to that found in Houston. There, the object to be accomplished was the filing of a document with the court and the time allowed for same was short, such that a brief interference or delay by prison officials could thwart what should be a relatively easy, one-step process. That is not the case here. The allowed period for bringing a petition for a new trial is three years and the initial receipt of the pro se petition by the proper court is not the culmination of that process but only the first step of several needed to bring the lawsuit.
There is no genuine issue of material fact; the plaintiff's petition for a new trial is barred by General Statutes § 52-582 and the defendant is entitled to judgment as a matter of law upon his special defense. The motion for summary judgment is granted.