Mourning v. Commissioner of Correction

• Decision Date: 27 April 2010
• Docket Number: No. 30744.,30744.
• Citation: 120 Conn.App. 612,992 A.2d 1169
• Parties: Michael MOURNING v. COMMISSIONER OF CORRECTION.
• Court: Connecticut Court of Appeals

992 A.2d 1169

120 Conn.App. 612

Michael MOURNING v. COMMISSIONER OF CORRECTION.

No. 30744.

Appellate Court of Connecticut.

Argued January 4, 2010.

Decided April 27, 2010.

COPYRIGHT MATERIAL OMITTED

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

Harry Weller, senior assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Warren C. Murray, supervisory assistant state's attorney, for the appellee (respondent).

BISHOP, DiPENTIMA and TYMA, Js.^*

TYMA, J.

After the habeas court granted certification to appeal, the petitioner, Michael Mourning, filed this appeal from the judgment of the court dismissing his amended petition for a writ of habeas corpus for lack of subject matter jurisdiction. The petitioner claims on appeal that the court improperly dismissed his petition because the court failed (1) to consider the challenge to his current conviction based on his claim that he was "in custody" for sale of narcotics within the meaning of General Statutes § 52-466, (2) to construe his amended petition liberally as a challenge to his conviction of sale of narcotics to the extent that the sentence may have been enhanced by the allegedly invalid findings that he violated his probation, which was imposed when he was convicted of certain crimes in 1996, and (3) to construe his petitions for a writ of habeas corpus as a writ of error coram nobis. We affirm the judgment of the habeas court.

The record reveals the following relevant facts and procedural history. On August 7, 1996, the trial court, Mihalakos, J., sentenced the petitioner in three criminal dockets to a total effective term of twenty years imprisonment, with execution suspended after ten years, and five years probation. The court sentenced the petitioner as follows: (1) docket number CR-94-90346-S (docket A) to a term of fifteen years imprisonment, with execution suspended after ten years, and five years probation; (2) docket number CR-95-91109-S (docket B) to a term of fifteen years imprisonment, with execution suspended after ten years, to run concurrently to docket A; and (3) docket number CR-95-92193 (docket C) to a term of five years imprisonment, with execution suspended, to run consecutively to dockets A and B.¹

The petitioner was remanded to the custody of the respondent, the commissioner of correction, and released from incarceration after completing the unsuspended portion of his sentence. After his release, the petitioner was arrested in 2007 and charged with one count of sale of narcotics in violation of General Statutes § 21a-277. He also was charged with three counts of violation of probation in contravention of General Statutes § 53a-32. The probations had resulted from his 1996 convictions. On February 25, 2008, as part of a plea agreement, the petitioner admitted before the trial court, Iannotti, J., to violating his probation on each of the three criminal dockets relating to his 1996 convictions. The court terminated the probations, accepted the petitioner's guilty plea to sale of narcotics and sentenced him on that charge to fifteen years imprisonment, with execution suspended after three years, and four years probation.

On June 6, 2008, the petitioner, acting as a self-represented party, filed a petition for a writ of habeas corpus. At the time that he filed his petition, the petitioner had served his period of incarceration in connection with his 1996 convictions, and the associated findings of violation of probation had been terminated by the court. Therefore, those sentences were no longer in existence. The petitioner was serving only the sentence that he had received for his conviction of sale of narcotics.

The petitioner alleged in his original petition that he could not be charged with, and found to have violated, his probation as a consequence of his arrest for sale of narcotics. He maintained that his probation was imposed by the trial court in his 1996 sentencing only on docket C and not on dockets A and B. More particularly, the petitioner asserted that his probation on docket C, which was a suspended sentence, was served and completed while he remained incarcerated on dockets A and B. The petitioner argued, consequently, that he was no longer on probation at the time he was arrested in 2007 for sale of narcotics, and the resulting findings of violation of probation were invalid. He requested that the habeas court make a "correct calculation of probation." The petitioner then filed an amended petition on July 15, 2008, in which he alleged that his "several dirty urines were insufficient proof of violating the conditions of his 1996 probations" and that in relation to "the criminal arrest on August 6, 2007 the evidence was insufficient proof of his conduct selling narcotics to be in violation of probation in violation of § 21a-277(a)."²

The respondent filed a motion to dismiss the petition on the ground that the habeas court lacked subject matter jurisdiction. The respondent claimed that the petitioner could not demonstrate that he was "in custody" at the time he filed his petition challenging the findings of violation of probation because the probationary terms had been terminated by Judge Iannotti immediately prior to the petitioner's being given his current sentence on the sale of narcotics charge.³

The habeas court agreed with the respondent and concluded that the petitioner was no longer "in custody" on the findings of violation of probation. In reviewing the procedural posture of the case, the court noted that "the sentencing transcript indicates that the trial court sentenced the petitioner to five years probation on the first docket, i.e., docket A."⁴ The court reasoned that "the petitioner initiated this matter on June 6, 2008, several months after Judge Iannotti ordered the probations in dockets A, B and C terminated. Thus, the petitioner was neither serving the to-serve portion of any of the three sentences imposed for those dockets, nor was he on parole, nor was he on probation. The petitioner simply was not in anyone's `custody' for the sentences in dockets A, B and C because all three had completely expired. It was, therefore, impossible for the petitioner to be legally restrained due to any or all of the sentences originally imposed by the trial court in those dockets." (Emphasis in original.) In view of its conclusions, the court rendered judgment dismissing the petition for lack of subject matter jurisdiction.

On October 14, 2008, the habeas court granted the certification to appeal. This appeal ensued.

I

The petitioner first argues that the court improperly granted the respondent's motion to dismiss on the ground that the petitioner was not "in custody" on the challenged conviction. Specifically, the petitioner claims that he was "in custody" on the 2008 narcotics conviction when he filed his petition and that his petition challenged that conviction. The petitioner asserts that the habeas court erred in failing to address on the merits his attack on that conviction. We disagree.

"As a preliminary matter, we set forth the applicable standard of review. The standard of review of a motion to dismiss is ... well established. In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.... Because a determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary." (Internal quotation marks omitted.) Lebron v. Commissioner of Correction, 274 Conn. 507, 512, 876 A.2d 1178 (2005).

"A court has subject matter jurisdiction if it has the authority to hear a particular type of legal controversy." (Internal quotation marks omitted.) Young v. Commissioner of Correction, 104 Conn. App. 188, 191, 932 A.2d 467 (2007), cert. denied, 285 Conn. 907, 942 A.2d 416 (2008). "Our Supreme Court has held that the party bringing the action bears the burden of proving that the court has subject matter jurisdiction.... With regard to subject matter jurisdiction, jurisdictional facts are facts showing that the matter involved in a suit constitutes a subject-matter consigned by law to the jurisdiction of that court...." (Citation omitted; internal quotation marks omitted.) Id., at 193, 932 A.2d 467.

Our state's habeas proceedings are defined by General Statutes § 52-466(a)(1), which provides in relevant part that "an application for a writ of habeas corpus ... shall be made to the superior court, or to a judge thereof, for the judicial district in which the person whose custody is in question is claimed to be illegally confined or deprived of such person's liberty."

In Lebron, our Supreme Court held that "the custody requirement in § 52-466 is jurisdictional." Lebron v. Commissioner of Correction, supra, 274 Conn. at 526, 876 A.2d 1178. Accordingly, "a habeas court has subject matter jurisdiction to hear a petition for a writ of habeas corpus only when the petitioner remains in custody on that conviction...." Samuels v. Commissioner of Correction, 117 Conn.App. 740, 743, 980 A.2d 945 (2009). "Considerations relating to the need for finality of convictions and ease of administration ... generally preclude a habeas petitioner from collaterally attacking expired convictions.... Thus, once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual in custody for the purposes of a habeas attack upon it." (Citations omitted; internal quotation marks omitted.) Young v. Commissioner of Correction, supra, 104 Conn.App. at 191-92, 932 A.2d 467.

The petitioner asserts that the habeas court improperly failed to...