Opinion
CV184009481
04-15-2019
Kimberly Finney #231059 v. Commissioner of Correction
UNPUBLISHED OPINION
File Date: April 17, 2019
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Newson, John M., J.
RESPONDENT’S REQUEST FOR ORDER TO SHOW CAUSE PURSUANT TO GENERAL STATUTES § 52-470 (#104.00), COURT SPONSORED MOTION TO DISMISS PURSUANT TO PRACTICE BOOK § 23-29 (#109.00)
Hon. John M. Newson, Judge
I. Procedural History
The petitioner was the defendant in a matter in the Fairfield-Bridgeport Judicial District, where he was convicted of the crime of kidnapping second degree by way of a guilty plea on May 21, 2008. Pursuant to that guilty plea, he was sentenced to a total effective term of twenty years, suspended after the service of five years incarceration, followed by five years of probation. The petitioner filed a prior petition that was pending under docket TSR-CV09-4002949, however, that matter was withdrawn on November 30, 2011. The petitioner commenced the present habeas corpus action on April 2, 2018, alleging that his trial counsel was ineffective for various reasons. On August 8, 2018, the respondent file the present Request for Order to Show Cause pursuant to § 52-470(c)(2), asserting that the present petition was not filed prior to October 1, 2017. On September 20, 2018, the petitioner filed a Notice of Intent to File Amended Petition (#106.00), and a Response to Respondent’s Motion for Order to Show Cause (Exhibit A to #107.00) on October 25, 2018.
At the hearing on the respondent’s Request for Order to Show Cause, the Court raised the issue, pursuant to its authority under Practice Book § 23-29, of whether the petition should be dismissed for failing to state a claim for which relief could be granted. In response, the petitioner argued that a self-represented petitioner should have the right, once appointed counsel has appeared, to review and revise the petition filed by the self-represented party before its legal sufficiency can be attacked. Following oral argument on the Order to Show Cause, the parties were provided the opportunity to brief the issues discussed above.
II. Law and Discussion
Is There Any Right that Requires Appointed Counsel to be Given Time to Review and Revise a Petition Filed by a Self-Represented Party Before Its Legal Sufficiency May be Attacked
The respondent’s Order to Show Cause was filed while the petitioner’s request for appointment of counsel was still under investigation by the Office of the Chief Public Defender. Since the petitioner was entitled to the assistance of counsel based on the legal claims in the petition; General Statutes § 52-196(a); the Court ordered the hearing on the request stayed until after counsel appeared (#105.00), at which time the respondent was allowed to renew their request for an evidentiary hearing. It was at the hearing on the respondent’s Request for Order to Show Cause that the Court advised counsel for the first time that It was raising the issue of whether the petition should be dismissed pursuant to Practice Book § 23-29(2) for failing to state a claim upon which relief could be granted. Although the parties were notified they would be given the opportunity to file legal memoranda addressing the issues raised by the Court, the petitioner asserted that appointed counsel appearing for the first time should be entitled to an opportunity to amend the petition filed by the self-represented party before its legal sufficiency can be attacked.
So the record is clear, petitioner’s counsel first filed an appearance on August 20, 2018. The hearing on the motions were held on October 26, 2018. During the hearing, the Court addressed the fact that, to the extent counsel’s Notice of Intent to File Amended Petition (#106.00) could be viewed as an affirmative request for additional time to re-plead the petition before the motions went forward, it was denied. It should also be clear that no argument was ever proffered that counsel had not had a "meaningful opportunity" to investigate the circumstances of the Order to Show Cause.
As the petitioner’s argument applies to the Request for Order to Show Cause, the Court finds that his position is at odds with the reasoning in the Kelsey matter. Kelsey v. Commissioner, 329 Conn. 711, 721, 189 A.3d 578 (2018). In that matter, the Supreme Court ruled specifically that a motion brought under subsection (d) of section 52-470(d), which attacks only the timing of the filing, may be held "at any time." Additionally, the Court specifically contrasted hearings held under subsections (c) or (d) of section 52-470, which attack the timing of filing, with those brought under subsection (b), which attack whether the substance of the allegations warrant proceeding to trial and requires the pleadings to be closed before the hearing may be held. The Court reasoned that the difference rested in the fact that an attack on the substantive pleadings under 52-470(b) required assurances that the case had been fully developed before a hearing was held. Kelsey v. Commissioner, supra, 329 Conn. at 718. ("In order to determine whether there is good cause for trial [under subsection (b) of § 52-470], the court must by necessity wade— albeit in a preliminary manner— into the merits of the petition"). The legislature is presumed to have notice of court decisions such as Kelsey interpreting statutes and rules and has the ability to issue amendments if those rules have been improperly interpreted. E.g., State v. Kyles, 169 Conn. 438, 441, 363 A.2d 97 (1975).
Additionally, the language in subsection (e) of § 52-470, the executing section for claims of presumptive delay being pursued under subsections (c) or (d), states: "In a case in which a rebuttable presumption or delay under subsection (c) or (d) of this section applies, the court, upon the request of the respondent, shall issue an order to show cause why the petition shall not be permitted to proceed." (Emphasis added.) The only qualification to the "shall issue " is the sentence that immediately follows, which states: "The petitioner or, if applicable, the petitioner’s counsel, shall have a meaningful opportunity to investigate the basis for the delay and respond to the order." (Emphasis added.) General Statues § 52-470(e). So, while this section clearly contemplates the involvement of counsel, it indicates only that counsel be given a "meaningful opportunity" to investigate "the basis for the delay." Where the language of a statute or rule is plain and unambiguous, the words are to be given their ordinary meaning. State v. Panek, 166 Conn.App. 613, 626, 145 A.3d 924, cert. granted, 323 Conn. 911, 149 A.3d 980 (2016). There is nothing else in subsection (e), or the remainder of the statute, qualifying the involvement of counsel. Id.
This Court has not determined whether the "shall" in § 52-470(e) is mandatory or directory, because it is not necessary for purposes of this decision. The reference is made solely on the basis that, in conjunction with the remainder of the section, it contradicts the petitioner’s claim that there is some right, attached to the appointment of counsel, to investigate and revise the factual substance of a petition before its legal sufficiency can be adjudicated. See, Starble v. Inland Wetlands Commission of Town of New Hartford, 183 Conn.App. 280, 287, 192 A.3d 428 (2018) ("The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience ... If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words ... Such a statutory provision is one which prescribes what shall be done but does not invalidate action upon a failure to comply ... A reliable guide in determining whether a statutory provision is directory or mandatory is whether the provision is accompanied by language that expressly invalidates any action taken after noncompliance with the provision").
The petitioner’s argument also fails with respect to the Court’s motion to dismiss. Practice Book § 23-29 says, in pertinent part: "The judicial authority may, at any time, upon its own motion ... dismiss the petition, or any count thereof, if it determines ..." The language here is plain and unambiguous, so they are to be given their ordinary meaning. State v. Panek, supra, 166 Conn.App. at 626. The ordinary meaning of "at any time" does not require further definition. While there is no dispute as to the importance of the right to the assistance of counsel throughout the entirety of the habeas corpus process where a petitioner is attacking an underlying conviction; see, Kaddah v. Commissioner of Correction, 324 Conn. 548, 550, 153 A.3d 1233, 1234 (2017) (the statutory right to counsel in habeas corpus matters in General Statutes § 51-296(a) is not limited to the first habeas proceeding, but continues through subsequent habeas petitions, because the assistance of counsel in subsequent proceedings is inextricably woven with establishing the ultimate question of whether the representation provided meets constitutional standards); the petitioner does not cite to, nor has the Court been able to locate, any single decision or statute qualifying the meaning of "at any time" with a requirement that appointed counsel have an opportunity to revise the petition. State v. Panek, supra, 166 Conn.App. at 626.
Therefore, the Court finds that there is no right or rule that counsel must be given an opportunity to revise the allegations in a petition submitted by a self-represented party before the legal sufficiency of that petition may be attacked under General Statutes § 52-470(d) or Practice Book § 23-29, or before a hearing may be held thereon.
Where a Petitioner Was Sentenced to a Period of Probation, and Subsequently Charged and Re-Sentenced for Violating that Probation, is the Original Conviction Date or the Disposition of the Violation of Probation Proceeding the Appropriate Measure of When the "Judgment of Conviction is Deemed to be Final" Under General Statutes § 52-470(c) ?
The respondent’s motion asserts that the petition challenges a 2008 conviction, but was not filed until April 2, 2018, so it should be dismissed for undue delay, because it was not filed prior to October 1, 2017. General Statutes § 52-470(c)(2). Factually, however, matters which the respondent does not dispute, while the petitioner’s original sentence was imposed in 2008, it has been the subject of two violation of probation proceedings, the most recent of which was disposed of on December 22, 2016. The most recent disposition resulted in a period of incarceration that remained in effect as of the date of this hearing. The Court finds that this petition survives, because it was filed within five years of the most recent violation of probation disposition. General Statutes § 52-470(c)(1).
General Statutes § 52-470 Summary disposal of habeas corpus cases. Determination of good cause for trial, provides, in pertinent part:
As the State concedes in its brief, a petitioner may at any time attack an illegal sentence under provision like Practice Book § 43-22. That being the case, it would seem that a petitioner could attack either the original conviction resulting in a probation sentence, or the most recent disposition resulting in a revocation of that probation, because the disposition of a probation violation is considered a continuation of the original sentencing proceeding. State v. Galberth, 175 Conn.App. 789, 794, 170 A.3d 132 (2017) ("Because [r]evocation is a continuing consequence of the original conviction from which probation was granted ..."). Also, a petitioner gets the benefit of the "latter" of the applicable limitation periods under § 52-470(c)(1), (2) or (3) when an Order to Show Cause is requested. The most recent violation of probation disposition on December 22, 2016, is well within the five-year window provided for in § 52-470(c)(1). Therefore, the respondent’s Order to Show Cause is denied.
Practice Book § 43-22. Correction of Illegal Sentence
The Court does not decide, and does not need to decide for purposes of this motion, whether a petitioner could attack an interim violation of probation proceeding by way of habeas corpus.
Court Sponsored Motion to Dismiss for Failure to State a Claim Upon Which Relief Can be Granted Pursuant to Practice Book § 23-29(2)
"A motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the [non-moving party] cannot as a matter of law and fact state a cause of action that should be heard by the court ..." Naier v. Beckenstein, 131 Conn.App. 638, 643, 27 A.3d 104, cert. denied, 303 Conn. 910, 32 A.3d 963 (2011). When adjudicating a motion to dismiss, "a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Citation omitted; quotation marks omitted.) Lawrence Brunoli, Inc. v. Town of Branford, 247 Conn. 407, 410-11, 722 A.2d 271 (1999). "The motion to dismiss ... admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone ... Where, however ... the motion is accompanied by supporting affidavits containing undisputed facts ... the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Citation omitted; footnote omitted; internal quotation marks omitted.) Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988). "Because subject matter jurisdiction implicates the authority of the court, the issue, once raised, must be resolved before proceeding to the merits of the case ..." (Citation omitted.) State v. Fowler, 102 Conn.App. 154, 158, 926 A.2d 672, cert. denied, 284 Conn. 922, 933 A.2d 725 (2007).
According to the allegations, the petitioner entered a guilty plea on May 21, 2008. "[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann ..." (Citations omitted; emphasis added.) Buckley v. Warden, 177 Conn. 538, 542-43, 418 A.2d 913 (1979).
The petition in the present case asserts a claim of ineffective assistance against trial counsel. A summary of the factual allegations are that counsel failed to conduct a thorough investigation, failed to suppress statements, failed to obtain personnel information on detectives involved in the case, failed to speak to an alibi witness, misrepresented information on the record to the trial Court, and placed a witness on the witness list counsel knew was not going to cooperate with the defense. Those claims were waived by virtue of the guilty plea. Id. Absent anywhere in the factual allegations is anything, even reading the petition in the light most favorable to sustaining it; Lawrence Brunoli, Inc. v. Town of Branford, supra, 247 Conn. at 410-11; which could be said to reasonably allege that counsel provided ineffective assistance with respect to the entry of the plea, or which attacks the voluntary, intelligent and knowing character of the plea. Id. Nor is there anything that could reasonably be read to attack the most recent violation of probation disposition or counsel’s performance in that matter. As such, the petition fails to state a claim upon which relief can be granted. Buckley v. Warden, supra, 177 Conn. at 542-43.
III. Conclusion
Based on the foregoing, the petition for writ of habeas corpus is DISMISSED for failing to state a claim upon which relief can be granted. Practice Book § 23-29(2).
(c) Except as provided in subsection (d) of this section, there shall be a rebuttable presumption that the filing of a petition challenging a judgment of conviction has been delayed without good cause if such petition is filed after the later of the following: (1) Five years after the date on which the judgment of conviction is deemed to be a final judgment due to the conclusion of appellate review or the expiration of the time for seeking such review; (2) October 1, 2017; or (3) two years after the date on which the constitutional or statutory right asserted in the petition was initially recognized and made retroactive pursuant to a decision of the Supreme Court or Appellate Court of this state or the Supreme Court of the United States or by the enactment of any public or special act. The time periods set forth in this subsection shall not be tolled during the pendency of any other petition challenging the same conviction.
The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.