Oliphant v. Comm'r of Corr.

• Decision Date: 10 November 2015
• Docket Number: AC 37028
• Court: Connecticut Court of Appeals
• Parties: ANTHONY OLIPHANT v. COMMISSIONER OF CORRECTION

ANTHONY OLIPHANT v. COMMISSIONER OF CORRECTION

AC 37028

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued September 17, 2015

November 10, 2015

Gruendel, Lavine and Mullins, Js.

(Appeal from Superior Court, judicial district of Tolland, Fuger, J.)

Albert J. Oneto IV, assigned counsel, with whom, on the brief, was David B. Rozwaski, assigned counsel, for the appellant (petitioner).

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Adrienne Maciulewski, deputy assistant state's attorney, for the appellee (respondent).

Opinion

LAVINE, J. The petitioner, Anthony Oliphant, appeals to this court for the fifth time since he was convicted of larceny in 1995.¹ The present appeal follows the habeas court's denial of the petition for certification to appeal from the judgment dismissing his amended petition for a writ of habeas corpus (2011 petition). On appeal, the petitioner claims that the habeas court, Fuger, J., (1) abused its discretion by denying his petition for certification to appeal and (2) improperly dismissed his 2011 petition.² We conclude that the petitioner's claims alleged in the 2011 petition are barred by the doctrine of res judicata and, therefore, that the habeas court did not abuse its discretion by denying certification to appeal. The appeal is dismissed.³

General Statutes § 52-470 (g) provides in relevant part: "No appeal from the judgment rendered in a habeas corpus proceeding brought by or on behalf of a person who has been convicted of a crime in order to obtain such person's release may be taken unless the appellant . . . petitions the judge before whom the case was tried . . . to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies."

"Our Supreme Court has explained that one of the goals of [§ 52-470 (g)] is to limit the number of appeals filed in criminal cases and to hasten the conclusion of the criminal justice process. . . . Additionally, § 52-470 [g] acts as a limitation on the scope of review, and not the jurisdiction, of the appellate tribunal." (Citation omitted.) Logan v. Commissioner of Correction, 125 Conn. App. 744, 750, 9 A.3d 776 (2010), cert. denied, 300 Conn. 918, 14 A.3d 333 (2011). The petitioner has tested the limits of § 52-470 (g).⁴

When a habeas court denies a petition for certification to appeal, "a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits." (Internal quotation marks omitted.) Logan v. Commissioner of Correction, supra, 125 Conn. App. 750-51.

To prevail on a denial of certification claim, the petitioner must "demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . A petitioner who establishes an abuse of discretion through one of the factors listed above must then demonstrate that the judgment of the habeas court should be reversed on its merits. . . . In determining whether the habeas court abused its discretion [a reviewing court] necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous." (Emphasis in original; internal quotation marks omitted.) Wright v. Commissioner of Correction, 143 Conn. App. 274, 285, 68 A.3d 1184, cert. denied, 310 Conn. 903, 75 A.3d 30 (2013).

The present appeal stems from the petitioner's 1995 conviction of one count of defrauding a public community in violation of General Statutes § 53a-122 (a) (4) (larceny case). This court affirmed the judgment of conviction. See State v. Oliphant, 47 Conn. App. 271, 272, 702 A.2d 1206 (1997), cert. denied, 244 Conn. 904, 714 A.2d 3 (1998). As a consequence of that conviction, the petitioner was sentenced to a term of fifteen years in the custody of the respondent, the Commissioner of Correction. The petitioner's sentence was suspended, and he began a period of probation on August 30, 2002. He was arrested on October 6, 2006, and charged with multiple crimes. State v. Oliphant, 115 Conn. App. 542, 544-45, 973 A.2d 147, cert. denied, 293 Conn. 912, 978 A.2d 1113 (2009). Following a violation of probation hearing, the trial court, Vitale, J., found that the petitioner had violated the terms of his probation, revoked his probation, and sentenced him to a term of six and one-half years in the custody of the respondent. Id., 547. This court affirmed the violation of probation judgment. Id., 555.

At both the larceny trial and violation of probation hearing, the petitioner rejected the assistance of the public defenders appointed to represent him. See id., 548; State v. Oliphant, supra, 47 Conn. App. 273. At his larceny trial, the petitioner requested that the trial court, Gaffney, J., appoint substitute counsel. State v. Oliphant, supra, 47 Conn. App. 273. Judge Gaffney denied the petitioner's request, and the petitioner stated that he wished to represent himself. Id. Attorney Michael Moscowitz, the petitioner's appointed counsel, informed the court that he had discussed self-representation with the petitioner and that he was not certain that the petitioner appreciated the amount of prison time he was facing, if convicted. Id., 273 n.2. Moscowitz asked the court to order a competency evaluation of the petitioner; the court declined to do so. After canvassing the petitioner, the court granted his request to represent himself and appointed Moscowitz as standby counsel. Id. On appeal from the larceny conviction, the petitioner claimed that the canvass Judge Gaffney conducted was insufficient pursuant to Practice Book § 961, now § 44-3. Id., 276. This court determined, however, that the trial court's canvass was adequate and that the court properly accepted the petitioner's waiver of the right to counsel. Id., 280. At his probation revocation hearing, the petitioner again was dissatisfied with the public defender appointed to represent him and asked to be permitted to represent himself. "The court [Vitale, J.] found, after an extensive canvass of the [petitioner], that he was competent to waive counsel and that his waiver was knowing, intelligent and voluntary." State v. Oliphant, supra, 115 Conn. App. 548.

Meanwhile, after his larceny conviction was affirmed, the petitioner, as a self-represented party, filed seriatim three petitions for a writ of habeas corpus, which were consolidated. Oliphant v. Commissioner of Correction, 146 Conn. App., 499, 508-509, 79 A.3d 77, cert. denied, 310 Conn. 963, 83 A.3d 346 (2013). Attorney Rosemarie T. Weber, appointed counsel, filed a second amended consolidated petition and, for health reasons, a motion to withdraw. Id., 509. The habeas court, A. Santos, J., granted Weber's motion to withdraw but declined to act on the second amended consolidated petition because the petitioner claimed that the allegations were incomplete. Id. On September 9, 2008, the self-represented petitioner filed yet another petition for a writ of habeas corpus. Id. In response to the 2008 petition, the court, Nazzaro, J., issued an order in which it "recited the petitioner's larceny conviction and probation violation and related histories and identified the allegations of the petition. [Judge Nazzaro] noted the consolidated petition then pending in the court and noted also that the allegations in the September 9, 2008 petition were duplicative or that they arose out of the same set of facts and underlying conviction and probation violation." Id., 509-10. The court ordered the 2008 petition consolidated with the previously consolidated petitions for a writ of habeas corpus and also that the petitioner "refrain from filing additional petitions arising out of the subject larceny conviction or violation of probation." Id., 510.

Following Weber's withdrawal, Attorney Robert J. McKay was appointed to represent the petitioner. Id. On February 16, 2010, McKay filed a motion for permission to withdraw as counsel along with an Anders brief⁵ under seal. Id.; see Practice Book § 23-41.⁶ In his Anders brief, McKay stated that he had conducted a thorough review of voluminous documents and transcripts related to the petitioner's convictions and found that each and every issue proposed by the petitioner within the pending consolidated petition either previously had been litigated and/or was without merit and wholly frivolous. Oliphant v. Commissioner of Correction, supra, 146 Conn. App. 518-19. The petitioner objected to McKay's motion to withdraw. Id., 510-11. The habeas court, Sferrazza, J., granted McKay's motion to withdraw and stated in a memorandum of decision filed February 15, 2011, that it had "reviewed counsel's motion and supporting memorandum and documentation, including the transcripts of the petitioner's crimi- nal trial and violation of probation hearing, as well as the documentation submitted by the petitioner, and concludes that there are no nonfrivolous issues to be tried." Oliphant v. Warden, 53 Conn. Supp. 194, 197, 80 A.3d 597 (2011), aff'd, 146 Conn. App., 499, 79 A.3d 77, cert. denied, 310 Conn. 963, 83 A.3d 346 (2013).

On July 1, 2011, the parties appeared before the habeas court, T. Santos, J., for a hearing to show cause. See Practice Book § 23-42. "The purpose of the show cause hearing was to provide the petitioner an opportunity to demonstrate and...