State v. Carter

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****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** STATE OF CONNECTICUT v. ANTHONY CARTER (AC 34414) (AC 34487) Lavine, Beach and Bear, Js. Argued February 21 officially released April 23, 2013 (Appeal from Superior Court, judicial district of Hartford, Alexander, J.) Anthony Carter, pro se, the appellant (petitioner). Kathryn W. Bare, assistant state s attorney, with whom, on the brief, was Gail P. Hardy, state s attorney, for the appellee (respondent). Opinion PER CURIAM. These consolidated appeals arise from the judgments of the trial court denying the petitions for a writ of error coram nobis filed by the self-represented petitioner, Anthony Carter. On appeal, the petitioner claims that the trial court erred by denying his petitions for a writ of error coram nobis (1) in the absence of a written objection from the respondent, the state of Connecticut, and (2) by applying a three year limitation period. We conclude that the trial court lacked subject matter jurisdiction over the petitions and therefore should have rendered judgments dismissing them. The following facts and procedural history are relevant on appeal. The petitioner was involved in a drug turf shooting during which a seven year old girl was struck by a stray bullet. See State v. Carter, 84 Conn. App. 263, 265, 853 A.2d 565, cert. denied, 271 Conn. 932, 859 A.2d 931 (2004), cert. denied, 544 U.S. 1066, 125 S. Ct. 2529, 161 L. Ed. 2d 1120 (2005). In 2002, following a jury trial, the petitioner was convicted of assault in the first degree in violation of General Statutes § 53a59 (a) (5), attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (5), risk of injury to a child in violation of General Statutes § 53a-21 (a) (1), and criminal possession of a firearm in violation of General Statutes § 53a217 (a) (1). Id. In addition to a direct appeal, the petitioner has filed numerous collateral attacks on his judgment of conviction.1 On December 1, 2011, the self-represented petitioner filed a petition for a writ of error coram nobis requesting that the court correct errors of fact regarding a motion in limine heard on May 2, 2002, which, if known at the time judgment was rendered, would have prevented its rendition. 2 The court, Alexander, J., denied the petition on December 16, 2011, noting that the petition was filed after the three year limitation. (Emphasis in original.) The court denied the petitioner s motion for reconsideration on January 3, 2012. On January 4, 2012, the petitioner filed a second petition for a writ of error coram nobis requesting that the court correct errors of fact regarding his motion for a judgment of acquittal after verdict heard on August 2, 2002.3 Judge Alexander denied the second petition on January 5, 2012, and the petitioner s motion for reconsideration on January 26, 2012. The petitioner filed separate appeals from the judgments denying his petitions for a writ of error coram nobis, and this court sua sponte ordered that the appeals be consolidated. A writ of error coram nobis is an ancient commonlaw 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. . . . The facts must be unknown at the time of the trial without fault of the party seeking relief. . . . A writ of error coram nobis lies only in the unusual situation where no adequate remedy is provided by law. . . . Moreover, when habeas corpus affords a proper and complete remedy the writ of error coram nobis will not lie. (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Henderson, 259 Conn. 1, 3, 787 A.2d 514 (2002). [S]uch a writ has been held not to be available when a proper remedy is afforded by an appeal . . . . State v. Grisgraber, 183 Conn. 383, 385, 439 A.2d 377 (1981). Judge Alexander denied the first petition on the ground that it was not filed within three years. The petitioner does not contend that the filing of the first petition was timely, but that the court improperly ruled on the petition prior to the respondent s having filed an objection. Judge Alexander did not state a reason for denying the second petition, but the record reveals that it too was filed well beyond the three year limitation period. See State v. Burney, 288 Conn. 548, 560, 954 A.2d 793 (2008) (court may rely on any ground supported by record to support judgment). The petitioner does not contend otherwise. The three year limitation for the filing of a petition for a writ of error coram nobis has been the law in Connecticut for more than 130 years. See State v. Das, 291 Conn. 356, 370, 968 A.2d 367 (2009); State v. Henderson, supra, 259 Conn. 3; State v. Grisgraber, supra, 183 Conn. 385; Hurlbut v. Thomas, 55 Conn. 181, 182 83, 10 A. 556 (1887); Jeffery v. Fitch, 46 Conn. 601, 604 (1879); State v. William C., 135 Conn. App. 466, 468 69, 41 A.3d 1205 (2012). More importantly, the three year limitation period is jurisdictional. See State v. William C., supra, 468 69. A court may raise an issue of subject matter jurisdiction sua sponte at any time because it implicates the court s authority to act. State v. Carey, 222 Conn. 299, 305, 610 A.2d 1147 (1992). The petitions for a writ of error coram nobis disclose on their face that they were not filed within three years of the petitioner s conviction, which is all that was needed to bring the jurisdictional matter to the court s attention. Moreover, the petitioner has not identified any statute or rule of practice requiring that the court hold a hearing before acting on an untimely petition for a writ of error coram nobis.4 In these cases, because the court lacked jurisdiction over the petitions for a writ of error coram nobis, it should have rendered judgments dismissing the petitions.5 See State v. Ramos, 306 Conn. 125, 142, 49 A.3d 197 (2012). The form of the judgments is improper; the judgments are reversed and the cases are remanded with direction to render judgments of dismissal. 1 Subsequent to his conviction and direct appeal, the petitioner filed four petitions for a writ of habeas corpus in our state courts. See Carter v. Commissioner of Correction, 133 Conn. App. 387, 35 A.3d 1088, cert. denied, 307 Conn. 901, 53 A.3d 217 (2012); Carter v. Commissioner of Correction, 131 Conn. App. 905, 28 A.3d 360 (2011), cert. denied, 303 Conn. 938, 37 A.3d 153 (2012); Carter v. Commissioner of Correction, 109 Conn. App. 300, 950 A.2d 619 (2008); Carter v. Commissioner of Correction, 106 Conn. App. 464, 942 A.2d 494, cert. denied, 288 Conn. 906, 953 A.2d 651 (2008). The petitioner also filed an unsuccessful motion to correct an illegal sentence. See State v. Carter, 122 Conn. App. 527, 998 A.2d 1217 (2010), cert. denied, 300 Conn. 915, 13 A.3d 1104 (2011). The petitioner also sought collateral relief in the federal district court. See Carter v. Dzurenda, United States District Court, District of Connecticut, Docket No. 3:04cv1691 (JBA) (July 29, 2005), reconsideration denied, United States District Court, District of Connecticut, Docket No. 3:04cv1691 (JBA) (Oct. 25, 2005), cert. denied, 549 U.S. 879, 127 S. Ct. 365, 166 L. Ed. 2d 138 (2006). The petitioner recently filed the necessary forms to file a successive petition for a writ of habeas corpus in the federal court. See Carter v. Haupt, United States Court of Appeals for the Second Circuit, Docket No. 12-4102, application for a petition for a writ of habeas corpus (Oct. 26, 2012). 2 The petitioner s defense counsel filed the motion in limine with respect to items marked E-1 through E-15 on the chart prepared by the Hartford Police Department on July 18, 2001. The items consist of spent casings from a .45 caliber weapon, spent casings from a .9 mm weapon and a bullet. (Internal quotation marks omitted.) The court, Mulcahy, J., denied the motion in limine. 3 The petitioner filed the motion for acquittal as a self-represented party. The court, Mulcahy, J., denied the motion for a judgment of acquittal. 4 In his brief on appeal, the petitioner relies on Telesco v. Telesco, 187 Conn. 715, 447 A.2d 752 (1982), for the proposition that the court could not act on his petitions prior to the respondent s filing an objection. Telesco was a civil action and is distinguishable on its facts and procedural posture. 5 In its brief, the respondent offers several alternative grounds on which to affirm the judgments of the trial court, including that, if the writ of error coram nobis ever existed in this state, it may only lie where there is no adequate remedy at law; see, e.g., State v. Grisgraber, supra, 183 Conn. 385, 439 A.2d 377 (1981); or that it has been supplanted by other remedies. See, e.g., State v. Das, 291 Conn. 356, 372, 968 A.2d 367 (2009). Assuming that the writ of error coram nobis exists, we conclude that the court lacked jurisdiction over the petitions at issue herein.

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