Opinion
No. HI4H CR 08-0622781
October 18, 2011
MEMORANDUM OF DECISION IN RE DEFENDANT'S WRIT OF ERROR CORAM NOBIS AND MOTION FOR NEW TRIAL
On November 26, 2008, the defendant pleaded guilty to possession of narcotics with intent to sell in violation of General Statutes § 21a-277a and was sentenced by the court (Strackbein, J.) to a term of five years incarceration, execution suspended, and three years of probation. The defendant, now detained by Immigration and Customs Enforcement and under an order of removal from the United States, simultaneously filed a writ of error coram nobis and a motion for new trial on June 21, 2011. In each, the defendant asserts a violation of his sixth amendment right to the effective assistance of counsel, as such right was explained in Padilla v. Kentucky, 559 U.S. 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), based on his trial counsel's alleged failure to advise him of the potential immigration consequences of his guilty plea.
Based on the analysis that follows, the defendant's writ of error coram nobis is denied and motion for new trial is dismissed.
I. Writ of Error Coram Nobis
"A writ of error coram nobis is an ancient common-law remedy which authorized 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. Montville v. Alpha Mills Co., 86 Conn. 229, 233, 84 A. 933 (1912) . . . The facts must be unknown at the time of the trial without fault of the party seeking relief . . . State v. Grisgraber, [ 183 Conn 383, 385, 439 A.2d 377 (1981)]. A writ of error coram nobis lies only in the unusual situation [in which] no adequate remedy is provided by law . . ." (Citations omitted; internal quotation marks omitted.) State v. Das, 291 Conn. 356, 370-71, 968 A.2d 367 (2010); see also Richardson v. Commissioner of Correction, 298 Conn. 690, 702, 6 A.3d 52 (2010) (setting forth the "hallmark elements" of a writ of error coram nobis).
The defendant properly filed the writ of error coram nobis within the three-year limitation period; however, he has failed to demonstrate that there is no adequate remedy provided by law. In the motion for new trial, which the defendant premised on Practice Book § 42-53 and General Statutes § 52-270, the defendant asserts the same claim of ineffective assistance of counsel that serves as the basis for the writ of error coram nobis. Although a motion for new trial under Practice Book § 42-53 is not the appropriate mechanism to challenge the adequacy of counsel's performance at this stage of the defendant's criminal case (as explained below), ineffective assistance of counsel claims may be properly raised in a civil petition for a new trial under General Statutes § 52-270. State v. Stocking, 131 Conn.App. 81, 87, 26 A.3d 117 (2011), citing State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S.Ct. 2922, 91 L.Ed.2d 550 (1986). The defendant himself has implicitly recognized, by virtue of invoking § 52-270, that a mechanism other than a writ of error coram nobis exists by which to raise his ineffective assistance of counsel claim and thereby obtain the relief he seeks. See State v. Das, supra, 291 Conn. 370-72 (discussing particular avenues available to challenge the constitutionality of a guilty plea). Accordingly, the writ of error coram nobis is denied.
In the memorandum in support of the writ of error coram nobis, the defendant correctly relates that in Das the Supreme Court outlined two avenues available to a defendant challenging the constitutionality of a guilty plea after the sentence has been executed, namely a direct appeal and a petition for a writ of habeas corpus. Def's Mem., p. 4. The Das court did not, however, indicate that these avenues are the exclusive methods by which a defendant can challenge the validity of his plea.
II. Motion for New Trial
The defendant relies on General Statutes § 52-270 and Practice Book § 42-53 as the basis for which a new trial should be granted. General Statutes § 52-270 provides in relevant part: "The Superior Court may grant a new trial for any action that may come before it for discovery of new evidence . . . or for other reasonable cause, according to the usual rules in such cases. The judges of the Superior Court may in addition provide by rule for the granting of new trials upon prompt request in cases where the parties or their counsel have not adequately protected their rights during the original trial of an action." Although § 52-270 confers jurisdiction on the trial court to entertain a post-judgment petition for a new trial, the criminal court does not have the authority to act upon such a petition. See State v. Rogelstad, 73 Conn.App. 17, 35-37, 806 A.2d 1089 (2002) (addressing petition for a new trial brought on the basis of newly discovered evidence and therefore improperly docketed in the criminal case). Petitions for a new trial "are ancillary to the original criminal trial, commenced by the service of civil process and prosecuted as civil actions." Sinchak v. Commissioner of Correction, 126 Conn.App. 684, 691, 14 A.3d 343 (2011); see also State v. Asherman, 180 Conn. 141, 144, 429 A.2d 810 (1980) (petition for a new trial properly is "instituted by a writ and complaint served on the adverse party . . ."). The defendant here failed to file a writ of summons and complaint in accordance with § 52-270; instead, he merely filed the motion for new trial with the criminal court. For this reason, the court does not have the authority to consider the motion for new trial.
"Although related, the court's authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court to hear and [to] determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute. (Internal quotation marks omitted.) New England Pipe Corp. v. Northeast Corridor Foundation, 271 Conn. 329, 336, 857 A.2d 348 (2004); Amodio v. Amodio, 247 Conn. 724, 728, 724 A.2d 1084 (1999)." (Internal quotation marks omitted.) State v. Gonzalez, 106 Conn.App. 238, 260 n. 16, cert. denied, 287 Conn. 903 (2008). See also State v. Rogelstad, supra, 73 Conn.App. 34-39.
The defendant also relies on the language of Practice Book § 42-53 as a basis for the motion for new trial. Section 42-53(a) provides in relevant part: "Upon motion of the defendant, the judicial authority may grant a new trial if it is required in the interests of justice." The defendant asserts that although his motion falls outside of the five-day limitation period established by Practice Book § 42-54, the constitutional infirmity alleged therein implicates the "interests of justice," therefore necessitating this court's consideration of the motion.
Section 42-54 provides: "Unless 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."
The defendant is correct that his motion for new trial, filed more than two years after the judgment, is untimely. This court does not agree, however, that the defendant's case presents the extraordinary circumstances that would justify consideration of the motion despite its tardiness. During the plea proceeding, the defendant was adequately canvassed by the court regarding his satisfaction with counsel's representation and understanding that his guilty plea may involve immigration consequences. TR, 11/26/08, pp. 3-4. Thus, there is no constitutional violation apparent in the record that would warrant the extreme remedy the defendant seeks through Practice Book § 42-53.
Based on the foregoing, the defendant's motion for new trial is hereby dismissed.
CONCLUSION
The court concludes that the defendant has failed to satisfy one of the necessary elements of a writ of error coram nobis. The court further concludes that it is without authority to act on the defendant's motion for new trial. Accordingly, the defendant's writ of error coram nobis is denied and motion for new trial is dismissed.