Opinion
No. CR06-0060483-S
April 26, 2011
MEMORANDUM OF DECISION
On January 2, 2007, the defendant, Edison Llanos-Fernandez, a citizen of Ecuador, pursuant to an agreement with the state, entered a plea of guilty to the charge of burglary in the third degree, a class D felony, in violation of General Statutes § 53a-103. After canvassing the defendant in accordance Practice Book § 39-19, the court, Keegan, M., accepted the plea. The court sentenced the defendant to a period of two years execution suspended and two years conditional discharge. That sentence has been executed. Three years and eleven months later, on November 24, 2010, the defendant filed a motion for a new trial or, in the alternative, issuance of a writ of error coram nobis. The defendant asserts that he received ineffective assistance from his prior counsel concerning the immigration consequences of his plea.
Practice Book § 39-19 provides in relevant part: "The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands:
(1) The nature of the charge to which the plea is offered;
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(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
(5) The fact that he or she has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.
Prior to the court's acceptance of the defendant's plea, the following colloquy occurred:
The Court: Do you realize by pleading guilty you give up certain rights? And did your lawyer —
Mr. Fernandez: Yes.
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The Court: Alright. And did your lawyer explain to you the rights that you give up when plead guilty?
Mr. Fernandez: Yes.
The Court: Again, is that correct, Mr. Sherwood?
Mr. Sherwood: I did, Judge.
The Court: Alright. And that is correct, okay. Now, if you are not a citizen of the United States, sir, your guilty plea could have the consequences of deportation, exclusion from readmission to the United States, or denial of naturalization and that is pursuant to federal law, did you discuss this with your lawyer?
Mr. Fernandez: Yes.
The Court: And you still want to go forward with your plea today, correct?
Mr. Fernandez: Yes.
The Court: Did anyone threaten you or force you in any way to cause you to enter your guilty plea today?
Mr. Fernandez: Can you explain that to me?
The Court: Okay, what I am asking you is, the decision to plead guilty that you made today, was it your decision or did someone else force you to do it?
Mr. Fernandez: No, my decision.
The Court: Alright. So are you pleading guilty voluntarily, meaning of your own free will?
Mr. Fernandez: Yes.
It is "axiomatic that once the issue of subject matter jurisdiction is raised, it must be immediately acted upon by the court." Ajadi v. Commissioner of Correction, 280 Conn. 514, 533, 911 A.2d 712 (2006). "The Superior Court is a constitutional court of general jurisdiction. In the absence of statutory or constitutional provisions, the limits of its jurisdiction are delineated by the common law . . . It is well established that under the common law a trial court has the discretionary power to modify or vacate a criminal judgment before the sentence has been executed . . . This is so because the court loses jurisdiction over the case when the defendant is committed to the custody of the commissioner of correction and begins serving the sentence." (Citations omitted.) State v. Luzietti, 230 Conn. 427, 431-32, 646 A.2d 85 (1994) (trial court without jurisdiction to consider motion for new trial filed six weeks after defendant's sentence commenced). See also State v. Reid, 277 Conn. 764, 894 A.2d 963 (2006); State v. DeVivo, 106 Conn.App. 641, 645, 942 A.2d 1066 (2008).
It is "well established" that "the jurisdiction of the sentencing court terminates once a defendant's sentence has begun, and, therefore, that court may no longer take any action affecting a defendant's sentence unless it expressly has been authorized to act." Cobham v. Commissioner of Correction, 258 Conn. 30, 37, 779 A.2d 80 (2001). There is no exception to this rule for alleged constitutional violations where the sentence has been executed. State v. Das, 291 Conn. 356, 368, 968 A.2d 367 (2009). The legislature has expressly authorized to trial courts "continuing jurisdiction to act on their judgments after the commencement of sentence . . . See, e.g., General Statutes §§ 53a-29 through 53a-34 (permitting the trial court to modify terms of probation after sentence is imposed); General Statutes § 52-270 (granting jurisdiction to trial court to hear a petition for a new trial after execution of original sentence has commenced); General Statutes § 53a-39 (allowing the trial court to modify sentences of less than three years provided a hearing is held and good cause shown)." (Internal quotation marks omitted.) State v. Boulier, 49 Conn.App. 702, 705, 716 A.2d 134 (1998).
Subject Matter Jurisdiction
The court lacks subject matter jurisdiction over this matter as the defendant's sentence has already been executed and no express authorization permitting the court to act has been identified by the defendant. See Cobham v. Commissioner of Correction, supra, and State v. Das, supra. The defendant's reliance on General Statutes § 52-270 in particular as a basis for providing this court with jurisdiction is misplaced. "A petition for a new trial is properly instituted by a writ and complaint served on the adverse party; although such an action is collateral to the action in which the new trial is sought, it is by its nature a distinct proceeding . . . We are presented, then, with the question of whether the defendant's failure to bring a petition for a new trial in a separate action deprived the trial court of subject matter jurisdiction to rule on the petition. The differences between a motion for a new trial and a petition for a new trial are matters of substance, not simply matters of form . . . The defendant must bring a petition under [Practice Book § 42-55 and General Statutes § 52-270] [in a separate proceeding instituted by writ and complaint served on the adverse party] if he wishes to seek a new trial based on newly discovered evidence . . . Accordingly, the trial court should have dismissed the defendant's petition for a new trial because it was improperly brought, and we do not review the trial court's denial of that petition." (Citations omitted; internal quotation marks omitted.) State v. Servello, 14 Conn.App. 88, 101-02, 540 A.2d 378, cert. denied, 208 Conn. 811, 545 A.2d 1107 (1988). In this case, no such petition has been filed. Even assuming arguendo that the defendant's pleadings can be construed as a writ and complaint properly served on the adverse party, such petition was filed under the same criminal docket number as the underlying case rather than being instituted by writ and complaint as a separate civil action. Therefore, under Servello, this court is without jurisdiction to adjudicate such petition as it has been improperly brought before it.
General Statutes § 52-270 provides in relevant part: "The Superior Court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases . . ."
This court also lacks subject matter jurisdiction to consider the defendant's motion for a new trial under Practice Book § 42-53 as, again, the defendant's sentence has already been executed and no express authorization permitting the court to act has been identified. As noted above, General Statutes § 52-270 does not confer any subject matter jurisdiction upon this court. Thus, the motion for new trial under Practice Book § 42-53 is substantively defective to the degree it relies on General Statutes § 52-270. Moreover, a motion for a new trial pursuant to Practice Book § 42-53 is wholly distinct from a petition for a new trial on the ground of newly discovered evidence pursuant to General Statutes § 52-270 and Practice Book § 42-55. Practice Book § 42-53 "provides for the granting of a motion for a new trial in the interests of justice, for constitutional error or for other materially injurious error" and "is limited to trial errors, and cannot be based upon newly discovered evidence." State v. Santaniello, 96 Conn.App. 646, 672, 902 A.2d 1, cert. denied, 280 Conn. 920, 908 A.2d 545 (2006). Therefore, the motion for a new trial pursuant to Practice Book § 42-53 is substantively defective to the degree it relies upon newly discovered evidence. Finally, Practice Book § 42-54 requires that "[u]nless otherwise permitted by the judicial authority in the interests of justice, a motion for a new trial shall be made within five days after a verdict or finding of guilty or within any further time the judicial authority allows during the five-day period." See also State v. Colon, 8 Conn.App. 111, 510 A.2d 1023 certification denied, 201 Conn. 812, 517 A.2d 630 (1986). In the present case, the defendant pleaded guilty on January 2, 2007 and the five-day period elapsed on January 7, 2007. The current motion has been filed more than forty months after the five-day period expired.
This court is also precluded from issuing a writ of error coram nobis. The writ of error coram nobis "lies only in the unusual situation" where "no adequate remedy is provided by law" and permits "the trial judge, within three years, to vacate the judgment of the same court if the party aggrieved by the judgment could present facts, not appearing in the record, which, if true, would show that such judgment was void or voidable." State v. Das, supra, 291 Conn. at 370, 968 A.2d 377. "The facts which may be so presented by such a writ of error are few. They are limited to such facts that were not presented to the court upon the trial or the original action, and which show that the party either had no legal capacity or no legal opportunity to appear, or that the court had no power to render the judgment complained of." State v. Brooks, 89 Conn.App. 427, 437-38 (2005). As the defendant in this case pleaded guilty on January 2, 2007, more than three years ago, the court is without power to issue the writ. Therefore, even if the defendant could establish both the absence of an adequate remedy at law and that the judgment was void or voidable, a question that this court need not reach, no writ of error coram nobis could issue.
Conclusion
On the basis of the foregoing, the court hereby DENIES the defendant's motion for new trial and DENIES his petition for the issuance of a writ of error coram nobis.