Foote v. Comm'r of Correction, 31008.

• Decision Date: 30 November 2010
• Docket Number: No. 31008.,31008.
• Citation: 8 A.3d 524,125 Conn.App. 296
• Parties: Stanley FOOTE v. COMMISSIONER OF CORRECTION.
• Court: Connecticut Court of Appeals

8 A.3d 524

125 Conn.App. 296

Stanley FOOTE

v.COMMISSIONER OF CORRECTION.

No. 31008.

Appellate Court of Connecticut.

Argued Sept. 16, 2010.

Decided Nov. 30, 2010.

Wayne A. Francis, special public defender, for the appellant (petitioner).

Raheem L. Mullins, assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Angela R. Macchiarulo, senior assistant state's attorney, for the appellee (respondent).

DiPENTIMA, C.J., and HARPER and SCHALLER, Js.

DiPENTIMA, C.J.

The dispositive issue in this appeal is whether the petitioner's continued silence after theexpiration of the 120 day statutory deadline for the rendering of judgment effected a waiver of the requirement imposed by General Statutes § 51-183b. In his appeal from the denial of his petition for a writ of habeas corpus, the petitioner, Stanley Foote, claims that the habeas court abused its discretion when it denied his motion to set aside the judgment.¹ We conclude that it did and, consequently,reverse the judgment of the habeas court and remand the case for a new trial.²

The following facts and procedural history are relevant to the resolution of the petitioner's appeal. In the underlying case, the petitioner had been charged with possession of cocaine with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), possession of cocaine in violation of General Statutes § 21a-279 (a) and operating a motor vehicle with a suspended license in violation of General Statutes § 14-215(a). Following the court's denial of his motion to suppress the narcotics evidence, the petitioner entered a conditional nolo contendere plea to the charge of possession of cocaine with intent to sell by a person who is not drug-dependent in violation of § 21a-278 (b), reserving his right to appeal from the denial of his motion to suppress.³ The petitioner appealed from the denial of his motion to suppress,and this court affirmed the trial court's judgment in State v. Foote, 85 Conn.App. 356, 857 A.2d 406 (2004), cert. denied, 273 Conn. 937, 875 A.2d 44 (2005).

Thereafter, the petitioner filed a petition for a writ of habeas corpus alleging the ineffective assistance of trial and appellate counsel. A trial on the merits was held and at the close of trial on August 28, 2008, the habeas court took the matter under advisement. The record reveals that neither party made any additional filings or requests, nor did the court communicate with either party. The habeas court rendered its judgment denying the petition on March 16, 2009, 200 days after the completion of the trial.

In its decision, the habeas court acknowledged, in a footnote, that its judgment was not rendered within 120 days of the completion of trial in apparent violation of § 51-183b.⁴ The court concluded, however, that because neither party had objected prior to the decision's being filed, it was able to render a late decision. On March 25, 2009, nine days after judgment had been rendered, the petitioner filed a motion to set aside the judgment, arguing that he had not waived the requirement of § 51-183b. ⁵ The court summarily denied the petitioner's motion on April 15, 2009.⁶ This appeal followed.

On appeal, the petitioner contends that he did not waive the 120 day requirement of § 51-183b or consentto the habeas court's late judgment. As a result, the petitioner asserts that the habeas court abused its discretion when it denied his motion to set aside the judgment that he filed nine days after the habeas court rendered its untimely decision. We agree.

We begin by setting forth our standard of review. "Habeas corpus is a civil proceeding." Collins v. York, 159 Conn. 150, 153, 267 A.2d 668 (1970). "The principles that govern motions to open or set aside a civil judgment are well established. A motion to open and vacate a judgment ... is addressed to the [trial] court's discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion.... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action.... The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did." (Internal quotation marks omitted.) Bove v. Bove, 103 Conn.App. 347, 351, 930 A.2d 712 (2007).

Our Supreme Court has stated that "[i]n past cases interpreting § 51-183b and its predecessors, we have held that the defect in a late judgment is that it implicates the trial court's power to continue to exercise jurisdiction over the parties before it.... We have characterized a late judgment as voidable rather than as void ... and have permitted the lateness of a judgment to be waived by the conduct or the consent of the parties." (Citations omitted.) Waterman v. United Caribbean, Inc., 215 Conn. 688, 692, 577 A.2d 1047 (1990). "[A]n unwarranted delay in the issuance of a judgment does not automatically deprive a court of personal jurisdiction. Even after the expiration of the time period within which a judge has the power to render a valid, binding judgment, a court continues to have jurisdiction over the parties until and unless theyobject. It is for this reason that a late judgment is merely voidable, and not void." Id., at 692-93, 577 A.2d 1047.

As a preliminary matter, we note that it is undisputed that the habeas court's decision rendered on March 16, 2009, was outside the 120 day limitation imposed by § 51-183b. This late judgment, however, was merely voidable when rendered because, as noted in footnote 2 of the habeas court's decision, neither party had objected prior to the judgment being issued. Nine days after the judgment was issued, the petitioner filed a motion to set aside the judgment, which the court denied. Thus, the critical inquiry before us is whether the petitioner's motion to set aside the judgment voided the habeas court's judgment.

Rearranging the principles set forth in Waterman v. United Caribbean, Inc., supra, 215 Conn. at 692-93, 577 A.2d 1047, our syllogism becomes: (1) a late judgment is voidable, not void, (2) a court maintains personal jurisdiction over the parties until and unless they object, (3) but a late judgment may be waived by conduct or consent, (4) therefore, absent waiver, a voidable judgment becomes void upon objection. Because the petitioner's motion to set aside the judgment was an objection, the dispositive issue, as correctly identified by both parties, is one of waiver. The petitioner claims that he did nothing to consent to the court's late judgment and that his mere silence prior to the court's rendition of the judgment could not be a waiver of the requirement of § 51-183b. In reply, the respondent, the commissioner of correction, contends that the petitioner's eighty day period of continued silence afterthe expiration of the 120 day statutory deadline but prior to the filing of the late judgment was implied consent to the habeas court's late judgment. Therefore, according to the respondent, the petitioner impliedly waived the 120 day requirement of § 51-183b, thereby validating the habeas court's voidable judgment. We agree with the petitioner.

"That the lateness of the decision of a case may be waived by the conduct of a party there can be no doubt." Hurlbutt v. Hatheway, 139 Conn. 258, 263, 93 A.2d 161 (1952). "Waiver is the intentional relinquishment of a known right.... Intention to relinquish [must] appear, but acts and conduct inconsistent with intention [to assert aright] are sufficient." (Citations omitted; internal quotation marks omitted.) Dichello v. Holgrath Corp., 49 Conn.App. 339, 349-50, 715 A.2d 765 (1998). Thus, "[w]aiver does not have to be express, but may consist of acts or conduct from which waiver may be implied.... In other words, waiver may be inferred from the circumstances if it is reasonable to do so." (Internal quotation marks omitted.) Id., at 350, 715 A.2d 765. "Whether conduct constitutes a waiver is a question of fact.... Our review therefore is limited to whether the judgment is clearly erroneous or contrary to law." (Citation omitted; internal quotation marks omitted.) Ford v. Ford, 72 Conn.App. 137, 141-42, 804 A.2d 215 (2002).

"[A] waiver is not ordinarily to be inferred from the mere inaction of a party prior to the time the judge files with the clerk his memorandum of decision." Bogaert v. Zoning Board of Appeals, 162 Conn. 532, 538, 294 A.2d 573 (1972). "Implications from silence or inaction ... import some duty or occasion to speak or act, and in order to imply consent that rendition of judgment ... might be deferred beyond the limit of time imposed by statute, there must be found to exist some obligation on the part of the [parties] or their counsel either seasonably to admonish the trial judge that the statute must be complied with or, after the [time limit imposed by statute] and before judgment, to interpose objection to its entry thereafter. We find no justification for so far extending the duty of a party or his counsel. The impracticability, if not the impropriety, of the first course is obvious; as to the second, it seems that the most that can reasonably be required is objection seasonably made after the filing of the decision." ⁷ (Emphasis added.)

Spelke v. Shaw, 117 Conn. 639, 646, 169 A. 787 (1933). Therefore, "[u]nless some situation develops which in reason requires the party to protest and he does not protest, or unless he consents to the delay either expressly or impliedly, as by agreeing to an additional hearing or by a tardy filing of his brief, no waiver will be spelled out." Hurlbutt v. Hatheway, supra, 139 Conn. at 263, 93 A.2d 161.

A review of the case law cited by both parties is consistent with such observations concerning waiver. In each of the cited cases, waiver was not based on silence per se but on some other act or conduct that either delayed the...