Iovieno v. Commissioner of Correction

Citation40 Conn.App. 553,672 A.2d 530
Decision Date02 May 1996
Docket NumberNo. 14077,14077
CourtConnecticut Court of Appeals
PartiesMichael IOVIENO v. COMMISSIONER OF CORRECTION.

Christopher C. Sheehan, Deputy Assistant Public Defender, for appellant (petitioner).

Mary H. Lesser, Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, and Christopher Alexy, Assistant State's Attorney, for appellee (respondent).

Before LAVERY, LANDAU and SPEAR, JJ.

SPEAR, Judge.

The petitioner appeals from the judgment of the habeas court dismissing his second petition for a writ of habeas corpus. He claims that the habeas court improperly required him to demonstrate that he was prejudiced by his counsel's failure to file in a timely manner a petition for certification to appeal from the judgment dismissing his first habeas corpus petition. We affirm the judgment of the habeas court.

The relevant facts are as follows. The petitioner, Michael Iovieno, was convicted of sexual assault in the first degree in violation of General Statutes § 53a-70, unlawful restraint in the first degree in violation of General Statutes § 53a-95, and three counts of burglary in the second degree in violation of General Statutes § 53a-102. On appeal, this court vacated one of the burglary convictions and remanded the case with direction to render a judgment of acquittal as to that count. We affirmed the remaining convictions. State v. Iovieno, 14 Conn.App. 710, 543 A.2d 766, cert. denied, 209 Conn. 805, 548 A.2d 440 (1988).

Thereafter, the petitioner filed a petition for a writ of habeas corpus claiming that his trial counsel was ineffective by failing to move to suppress evidence wrongfully seized. The habeas court dismissed the habeas petition, finding that trial counsel's incompetence did not prejudice the petitioner in the manner defined by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The habeas court's memorandum of decision dismissing the petition was dated February 15, 1991, and was filed on February 22, 1991.

On March 8, 1991, the petitioner's habeas counsel filed a petition for certification to appeal. This petition was filed four days beyond the time limitation set forth in General Statutes § 52-470(b). 1 The habeas court concluded that it did not have the discretion to consider a petition that was not timely filed. The Supreme Court, ruling on a writ of error brought by the petitioner, affirmed the habeas court's decision. Iovieno v. Commissioner of Correction, 222 Conn. 254, 608 A.2d 1174 (1992).

The petitioner filed a second habeas petition claiming that he was denied his right to effective assistance of counsel in his appeal of the dismissal of his first habeas petition. In the second petition, he requested (1) that a writ of habeas corpus be issued to bring him before this court in order that justice may be done, (2) that the conviction and sentence be vacated and the matter returned to the trial court docket for further proceedings, (3) that his right to appeal from the original habeas court decision be restored provided that a petition for certification be filed within ten days from the date of this decision, and (4) such other relief as deemed equitable and just.

The habeas court, in addressing the merits of the petition, first found that a statutory right to effective assistance of counsel exists in appeals from adverse habeas corpus decisions. The court then found that the conduct of the petitioner's counsel in failing to file the petition for certification in a timely manner fell below an objective standard of reasonable representation. The court concluded, however, that the petitioner had not proven that such deficient representation had prejudiced him and, therefore, dismissed the petition.

The petitioner claims that his counsel's conduct constituted per se prejudice, and, therefore, he was not required to prove prejudice. In rejecting this claim, the habeas court stated that the petitioner failed to prove that "there exists a reasonable probability that, but for the lack of timely filing, his petition for certification would have been granted." The habeas court granted a timely filed petition for certification to appeal its decision.

The petitioner asserts that the habeas court had the authority to remedy his counsel's failure to file a petition for certification to appeal in a timely manner by "starting the time limit anew for the filing of the petition for certification from the first habeas decision." 2 We disagree, and conclude that because the time limitation contained in § 52-470(b) implicates subject matter jurisdiction, a habeas court does not have the authority to set a new ten day period for filing a petition for certification to appeal.

The following procedural history is pertinent to this issue. The habeas court, in addressing the petitioner's second habeas petition, conducted a thorough analysis regarding the defendant's ineffective assistance of counsel claim. The court applied the two-prong test enunciated in Strickland v. Washington, supra, 466 U.S. 668, 104 S.Ct. 2052. 3 The court found that the petitioner had satisfied the first prong of Strickland by proving that his habeas counsel's performance fell below an objective standard of reasonableness. In examining the second prong of Strickland, often termed the prejudice prong, the court applied the criteria established in Lozada v. Deeds, 498 U.S. 430, 432, 111 S.Ct. 860, 861-62, 112 L.Ed.2d 956 (1991), 4 to determine whether the petitioner had proven, by a preponderance of the evidence, that there existed a reasonable probability that the petition for certification for appeal would have been granted. The court concluded that the petitioner did not satisfy this second prong and, thus, dismissed the habeas petition.

While we agree with the habeas court's ultimate decision to dismiss the petition, we disagree with the court's reasoning in support of that result. " 'Where the ... court reaches a correct decision but on mistaken grounds, this court has repeatedly sustained the ... court's action if proper grounds exist to support it.' " Kelley v. Bonney, 221 Conn. 549, 592, 606 A.2d 693 (1992), quoting Morris v. Costa, 174 Conn. 592, 597-98, 392 A.2d 468 (1978). The habeas court's Lozada analysis implies that the court had subject matter jurisdiction to reinstate the ten day certification period had the court concluded that the petitioner satisfied both prongs of Strickland. Our case law dictates that the failure to file the petition within ten days of the judgment of dismissal deprived the court of subject matter jurisdiction to grant a new ten day period.

"[J]urisdiction of the subject matter is a question of law and cannot be waived or conferred by consent either in the trial court or here...." (Internal quotation marks omitted.) Serrani v. Board of Ethics 225 Conn. 305, 308, 622 A.2d 1009 (1993). Moreover, the subject matter jurisdiction of our court is strictly defined by statute. Simms v. Warden, 229 Conn. 178, 181, 640 A.2d 601 (1994); Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 759-60, 628 A.2d 1303 (1993); Grieco v. Zoning Commission, 226 Conn. 230, 231, 627 A.2d 432 (1993).

Our conclusion that the ten day time limitation of § 52-470(b) is jurisdictional has much support. "[T]ime limitations on the right to appeal that are contained in statutes, rather than in provisions of the Practice Book, are subject matter jurisdictional.... The rationale for this ... is that our appellate subject matter jurisdiction is created by statute, and we have no power to enlarge or circumscribe it." (Citations omitted.) Ambroise v. William Raveis Real Estate, Inc., supra 226 Conn. at 763, 628 A.2d 1303. 5 The Supreme Court in Ambroise cites Iovieno v. Commissioner, supra, 222 Conn. 254, 608 A.2d 1174, and refers to § 52-470 as one such statute that contains a time limitation that defines the subject matter jurisdiction of the court. Ambroise v. William Raveis Real Estate, Inc., supra, at 763, 628 A.2d 1303.

We note, however, that our Supreme Court in Iovieno did not explicitly state that the untimely petition deprived the habeas court of subject matter jurisdiction, but rather concluded that "the habeas court was correct in concluding that it had no discretion to consider an untimely petition for certification to appeal." (Emphasis added.) Iovieno v. Commissioner of Correction, supra, 222 Conn. at 258, 608 A.2d 1174. Despite the difference in language, our courts have discerned no practical difference between a court's having no subject matter jurisdiction and a court's having no discretion.

In HUD/Barbour-Waverly v. Wilson, 235 Conn. 650, 668 A.2d 1309 (1995), the Supreme Court addressed whether the failure to file an appeal from a judgment of possession in a summary process eviction proceeding within five days as prescribed by General Statutes § 47a-35 deprived the court of subject matter jurisdiction. The court, relying on Ambroise, held that the statutory time limitations implicated subject matter jurisdiction. Id., at 656, 668 A.2d 1309. After citing Iovieno and stating that the "habeas court [has] no discretion to hear untimely appeals"; id., at 657, 668 A.2d 1309; the court concluded that "[t]he absolute nature of the legislative pronouncement regarding the ability to appeal a summary process judgment strongly suggests that compliance with its mandate is a necessary prerequisite to an appellate court's subject matter jurisdiction." (Emphasis added.) Id; see also State v. Southard, 191 Conn. 506, 508, 467 A.2d 920 (1983) ("court's jurisdiction is limited by statute to appeals from final judgments ... and accordingly we have no discretion to enlarge our jurisdiction in abrogation of the final judgment rule"). This court has similarly discerned no difference between a lack of...

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5 cases
  • Iovieno v. Commissioner of Correction, 15411
    • United States
    • Supreme Court of Connecticut
    • August 26, 1997
    ...the petitioner did not satisfy this second prong and, thus, dismissed the habeas petition." Iovieno v. Commissioner of Correction, 40 Conn.App. 553, 554-57, 672 A.2d 530 (1996) [Iovieno III ]. I The petitioner's first claim is that § 52-470(b), in specifying a ten day limitation period in w......
  • State v. Phidd, 13999
    • United States
    • Appellate Court of Connecticut
    • May 23, 1996
    ...corpus proceeding unless within ten days after judgment, a petition for certification to appeal is filed. Iovieno v. Commissioner of Correction, 40 Conn.App. 553, 672 A.2d 530, cert. granted, 237 Conn. 910, 675 A.2d 456 (1996). The present case is not an appeal from a habeas proceeding and ......
  • Connecticut Car Rental, Inc. v. Patla
    • United States
    • Appellate Court of Connecticut
    • June 11, 1996
    ...the basis of a portion of the same exclusion different from that on which the trial court relied. See Iovieno v. Commissioner of Correction, 40 Conn.App. 553, 557, 672 A.2d 530 (1996). II The claim that the trial court erroneously interpreted the exclusion in a manner inconsistent with § 38......
  • State v. Snyder
    • United States
    • Appellate Court of Connecticut
    • May 31, 1996
  • Request a trial to view additional results

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