Vasquez v. Superior Court

• Decision Date: 17 July 2007
• Docket Number: No. 28248.,28248.
• Parties: Juan VASQUEZ v. The SUPERIOR COURT of the State of Connecticut, Hartford Judicial District.
• Court: Connecticut Court of Appeals

925 A.2d 1112

102 Conn.App. 394

Juan VASQUEZ v. The SUPERIOR COURT of the State of Connecticut, Hartford Judicial District.

No. 28248.

Appellate Court of Connecticut.

Argued March 13, 2007.

Decided July 17, 2007.

Aaron J. Romano, with whom, on the brief, was Cynthia M. Fernandez-Romano, Bloomfield, for the plaintiff in error.

Robert J. Deichert, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the defendant in error.

BISHOP, HARPER and DUPONT, Js.

DUPONT, J.

The primary issue posed by the plaintiff in error, Juan Vasquez (the plaintiff), in connection with his writ of error,¹ is whether the trial judge, before whom the allegedly contemptuous behavior had occurred, could punish him for summary criminal contempt pursuant to General Statutes § 51-33² when he had been charged by information on the same date with a violation of General Statutes § 51-33a,³ and, according to the judgment file, found guilty of the latter statute,⁴ on the basis of the same behavior.⁵ A resolution of the issue requires plenary review of both statutes, relevant rules of practice, decisional law and the particular undisputed facts. No case of which we are aware has directly answered the question.

I

The writ of error claimed various alternative relief, namely, a reversal of the judgment of summary criminal contempt, the entry of judgment of not guilty or a new trial before a jury and a different judge, or a reduction in the sentence imposed. The plaintiff's appellate brief sought vacation of the conviction. His reply brief sought dismissal of the "matter" on the ground that subject matter jurisdiction was lacking for the judge's finding and punishment for summary criminal contempt.

The first question is whether jurisdiction exists in this court to entertain the writ of error, as the appropriate vehicle for the claimed relief sought by the plaintiff on the facts of this unusual case. Whether we have jurisdiction to entertain the writ depends on our analysis of whether the trial judge properly conducted a summary criminal contempt proceeding pursuant to § 51-33.

The plaintiff's claim is that no subject matter jurisdiction existed to allow the judge to conduct a summary proceeding pursuant to § 51-33 when an information simultaneously alleged a violation of § 51-33a, a non-summary proceeding. We begin our analysis by stating the obvious. The court had the power, or jurisdiction, to hear the general class of case, a summary criminal contempt pursuant to § 51-33. The plaintiff conceded this at oral argument.

Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented to it. It exists if the court has the power to hear and determine cases of the general class to which the particular proceeding belongs. Statewide Grievance Committee v. Burton, 282 Conn. 1, 6-7, 917 A.2d 966 (2007); Sastrom v. Psychiatric Security Review Board, 100 Conn.App. 212, 216-17, 918 A.2d 902 (2007). If a tribunal has the authority to decide the class of case, the issue of jurisdiction should be resolved in favor of its existence. Spencer v. Star Steel Structures, Inc., 96 Conn.App. 142, 150, 900 A.2d 42, cert. denied, 280 Conn. 914, 908 A.2d 539 (2006).

Subject matter jurisdiction should not be confused with the scheduling of a case, or its assignment to a particular judge, which may relate to a recusal of a judge for bias or prejudice or statutory incapacity, as provided in § 51-33a. The trial judge in this case had the power to conduct a summary criminal contempt hearing immediately, pursuant to § 51-33 or to postpone a criminal contempt hearing, pursuant to § 51-33a, if he deemed it necessary. See Practice Book §§ 1-16 through 1-19.⁶ Recusal relates to the impropriety of a particular judge to listen to a particular case because of bias that places the judge's impartiality in question. LaBow v. LaBow, 13 Conn.App. 330, 333-34, 537 A.2d 157, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988). Recusal may also be statutory, as provided in § 51-33a and in the statute's amplification in Practice Book §§ 1-17 and 1-19. Recusal, the disqualification of a particular judge, is unrelated to jurisdiction, the power to hear a particular type of case.

In this case, if § 51-33a applied, the recusal would be a mandatory statutory disqualification of a particular judge, unrelated to the general power of the Superior Court to hear that particular class of case. Here, the judge had jurisdiction to hear both § 51-33 and § 51-33a cases. The question for the judge was which statutory avenue to pursue, one resulting in a summary proceeding or the other in a postponement of the matter, to be heard by another judge. Because none of the conditions outlined in Practice Book § 1-17⁷ applied, there was no reason for recusal, and the judge proceeded with a summary criminal contempt proceeding, pursuant to Practice Book § 1-16 and General Statutes § 51-33.

Before describing the facts that illuminate the case, we note that the plaintiff admits that no claim or motion for a continuance of the summary criminal contempt proceeding was made on the basis of the fact that the information charged a violation of § 51-33a, thereby arguably precluding a summary criminal contempt proceeding, pursuant to § 51-33. He correctly claims, however, that a jurisdictional argument may be raised at any time. See Manifold v. Ragaglia, 94 Conn.App. 103, 117, 891 A.2d 106 (2006).

Certain facts are relevant to a determination of our jurisdiction to afford relief by way of a writ of error. The plaintiff was in court to argue his motion to withdraw his guilty pleas on the day the behavior occurred. The transcript reveals that immediately after the court denied the plaintiff's motion to withdraw his pleas, he struck his counsel, attorney Michael Isko, causing him to fall beneath the prosecutor's table in the courtroom. Prior to the denial of the motion, the plaintiff had complained to the court about the advice and performance of his counsel and had stated that he should be able to withdraw his plea because of "[i]neffective assistance of counsel. . . ." The plaintiff had previously referred his complaint about his counsel to the statewide grievance committee. He told the court that his counsel was "in direct violation of the attorney's oath and numerous, numerous rules of the professional conduct. . . ." Immediately after striking his counsel, the plaintiff stated: "Fucking ass motherfucker. I'm going to fuck your ass up, man. Let me go, man." The ensuing events and comments of the court are best described by quoting from the transcript.⁸

During the afternoon, on the same day, different counsel, Aaron J. Romano, a special public defender, appeared for the plaintiff. At that time, the plaintiff was willing to come into the courtroom of his own accord. Continuing with the matter, the judge noted that he had put certain observations on the record during the morning session when the behavior of the plaintiff occurred but did not elaborate then because the plaintiff and his counsel were not present.⁹

After the punishment was imposed by the court, the plaintiff was faced with a procedural dilemma with regard to his next step if he chose to contest his sentence of six months to serve in jail. If he filed a direct appeal, claiming that he was denied the rights to cross-examine and to present evidence and other guarantees of due process as provided for in non-summary criminal contempt proceedings brought pursuant to § 51-33a, he risked dismissal on the ground that he should have brought a writ of error because he sought redress arising from a judgment of summary criminal contempt rendered pursuant to § 51-33. See State v. Melechinsky, 36 Conn.Supp. 547, 550-51, 419 A.2d 900 (1980). If he opted to bring a writ of error, as he did, he risked dismissal of it by this court because he should have filed a direct appeal from the judgment of guilty in violation of § 51-33a, as stated in the judgment file. See State v. Murray, 225 Conn. 355, 623 A.2d 60, cert. denied, 510 U.S. 821, 114 S.Ct. 78, 126 L.Ed.2d 46 (1993).

Paragraph three of the writ of error provides that the original charges underlying the proceedings during which the contempt was committed were two counts of solicitation to commit robbery in the first degree and assault in the first degree to which he had pleaded guilty under the Alford doctrine.¹⁰ Paragraph seventeen states that the plaintiff "claims his right to this writ of error on the basis that [our Supreme Court] has held that the writ of error is the only means by which review of a judgment of summary criminal contempt may be obtained."¹¹ Paragraph 18(g) states that the court "erred in finding the [plaintiff] in criminal contempt in violation of . . . § 51-33a where the proper procedure as delineated by the statute requires that charge to be tried by a different judge." Thus, the plaintiff simultaneously refers to both the judgment of summary criminal contempt, a violation of § 51-33, which had actually been rendered and the "paper" judgment pursuant to § 51-33a, as stated in the judgment file.

A writ of error is a separate and distinct review procedure, not to be confused with a statutory appeal. C. Tait & E. Prescott, Connecticut Appellate Practice and Procedure (3d Ed.2000) § 9.1. If there is a right to appeal, a writ of error should not be brought; id., at § 9.3; Practice Book § 72-1(b); but if a summary criminal contempt is found, there is no right to an appeal; see C. Tait & E. Prescott, supra, at § 9.4(b); and a writ of error must be sought. Martin v. Flanagan, 259 Conn. 487, 494, 789 A.2d 979 (2002); Banks v. Thomas, 241 Conn. 569, 585, 698 A.2d 268 (1997); Ullmann v. State, 230 Conn. 698, 703, 647 A.2d 324 (1994); Wilson v. Cohen, 222 Conn. 591, 595, 610 A.2d 1177; Jackson v. Bailey, 221 Conn. 498, 500, 605 A.2d 1350, cert. denied, 506 U.S. 875, 113 S.Ct. 216, 121 L.Ed.2d 155 (1992); In re...