Vitale v. Comm'r of Corr.

• Decision Date: 26 December 2017
• Docket Number: AC 39556
• Citation: 178 A.3d 418,178 Conn.App. 844
• Court: Connecticut Court of Appeals
• Parties: John VITALE v. COMMISSIONER OF CORRECTION

178 Conn.App. 844

178 A.3d 418

John VITALE

v.COMMISSIONER OF CORRECTION

AC 39556

Appellate Court of Connecticut.

Argued September 26, 2017

Officially released December 26, 2017

James B. Streeto, senior assistant public defender, for the appellant (petitioner).

Steven R. Strom, assistant attorney general, and James A. Killen, senior assistant state's attorney, with whom, on the brief, were George Jepsen, attorney general, and David S. Shepack, state's attorney, for the appellee (respondent).

Alvord, Mullins and Beach, Js.

ALVORD, J.

The petitioner, John Vitale, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly concluded that it lacked subject matter jurisdiction over his petition. We conclude that the habeas court properly determined that it lacked subject matter jurisdiction over the petition and, therefore, that it did not abuse its discretion by denying the petitioner's petition for certification to appeal. Accordingly, we dismiss the appeal.

The following procedural history is relevant to this appeal. On July 5, 2016, the petitioner, representing himself, filed a petition for a writ of habeas corpus. In his petition, he noted, under "Sentence(s)," "1 year concurrent; Gen. Stat. 53a–73a(2) sex assault 4th degree." He provided the date of sentencing as September 19, 1980, and indicated that the sentence was to be served concurrent with a life sentence. He represented that he pleaded nolo contendere and that he did not appeal from the judgment of his conviction.

The petitioner claimed in his petition that his conviction was illegal because he "was made to plead guilty and was sentenced without my lawyer of record (R. Chase) being there with me." The petitioner claimed that his incarceration or sentence was illegal because "collateral consequence of unlawful conviction for SA 4th adversely affects my classification and parole; and parole release, (my treatment while in D.O.C. and on parole)." The petitioner represented that he had tried to raise the claim in a previous petition, but it was declined on December 22, 2015. He further stated that the court, Oliver, J. , had granted his request for counsel to assist in the appeal of the dismissal of the previous petition, but the appeal was never filed. Although the previous petition is not part of the record, the petitioner's appendix includes the trial court's dismissal, which stated that "[t]he habeas corpus petition is declined and is being returned because the court lacks jurisdiction per Connecticut Practice Book § 23–24(a)(1).¹ As the petitioner admits, in paragraph 1 (e) of his petition that he [was] discharged from the challenged conviction in 1979, the court declines to issue the writ, as the petitioner is not in custody on the conviction being challenged." (Footnote added.)

In the petition that is the subject of this appeal, the petitioner claimed that he was asking the court to permit him to withdraw his guilty plea on the sexual assault charge. In a handwritten attachment, the petitioner elaborated on his claims. He alleged that his 1980 conviction for sexual assault in the fourth degree was "obtained by (no contest) guilty plea and sentence imposed without counsel present." He claimed, based primarily on United States Supreme Court precedent, that "[a] conviction obtained in violation of the right to counsel under Gideon [v. Wainwright , 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed. 2d 799 (1963) ] has special status such that the claim may be heard and the conviction vacated based on collateral consequences, even though the habeas petitioner is not still serving the sentence."

The petition asserted the following facts. On September 19, 1980, the petitioner was "held in lieu of bond at the Litchfield jail, scheduled to appear in court for sentencing on his felony murder convictions ... and for disposition of the case charging him with a nonrelated sexual assault; while in [the] custody of the Commissioner of Correction." The petitioner had retained Attorney Robert Chase to represent him for the sexual assault case and Attorney Warren Luedecker to represent him for the felony murder case. The petitioner had obtained a marriage license and Attorney Luedecker represented to the deputies at the Litchfield jail that the court, Pickett, J. , had granted permission for the petitioner to be wed at a neighboring office of a justice of the peace. When the deputies and the petitioner arrived late to court, Judge Pickett "responded to the deception by Attorney Luedecker played on the deputies and the lateness ... by addressing [the] petitioner and his lawyer concerning the situation. The court directed counsel into a separate room where they were directed to remain for some period of time." The court "put the petitioner to plea, accepted a nolo contendere plea to sexual assault in the fourth degree and imposed a one year sentence (time had already been served), all done without Attorney Chase or other counsel available ...." The petitioner's counsel was present for the sentencing on the felony murder case.

The petitioner alleged that although he "has had his parole violated for technical violations, all nonviolent, since he was first released to parole in 1985, at no time until 2011 did the conviction of fourth degree sexual assault (unwanted touching) have any bearing on his dealings with the parole board or his various parole officers." The petitioner claimed that he had been on parole for fifteen years without the sexual assault conviction having any bearing on his parole. The petitioner alleged: "As of August 4, 2015, [the] petitioner is incarcerated [on a] violation of parole, which consists of using a cell phone in violation of the conditions imposed under the special monitoring unit for sex offenders. [The] petitioner has been advised that his 1980 unwanted touching conviction, obtained in violation of Gideon , will have [the] petitioner treat[ed] the same as if it was sexual assault in the [first] degree."

By order dated July 26, 2016, the habeas court, Oliver, J. , sua sponte dismissed the petition for habeas corpus, stating that "[t]he habeas corpus petition is dismissed and is being returned pursuant to Connecticut Practice Book § 23–29(1),² as the court lacks jurisdiction over the claims set forth concerning the decisions of the parole board and [Department of Correction] classifications." (Footnote added.) On August 5, 2016, the petitioner filed a petition for certification to appeal, in which he stated the grounds as follows: "Judge is wrong: I pleaded guilty without assistance of counsel, which states a claim even though sentence expired. Gideon [v. Wainwright , supra, 372 U.S. 335, 83 S.Ct. 792 ]; Daniels v. United States , 532 U.S. 374, 378, [121 S.Ct. 1578, 149 L.Ed. 2d 590] (2001)." In his application for waiver of fees, costs and expenses and appointment of counsel on appeal, the petitioner stated: "Conviction must be vacated even if [there are] no direct or collateral consequences." On August 5, 2016, the habeas court denied the petition for certification to appeal and granted the petitioner's application for appointment of counsel and waiver of fees on appeal. This appeal followed.

Our Supreme Court has stated: "We begin by setting forth the applicable standard of review and procedural hurdles that the petitioner must surmount to obtain appellate review of the merits of a habeas court's denial of the habeas petition following denial of certification to appeal. In Simms v. Warden, 229 Conn. 178, 187, 640 A.2d 601 (1994), we concluded that [General Statutes] § 52–470(b) prevents a reviewing court from hearing the merits of a habeas appeal following the denial of certification to appeal unless the petitioner establishes that the denial of certification constituted an abuse of discretion by the habeas court. In Simms v. Warden, 230 Conn. 608, 615–16, 646 A.2d 126 (1994), we incorporated the factors adopted by the United States Supreme Court in Lozada v. Deeds, 498 U.S. 430, 431–32, 111 S.Ct. 860, 112 L.Ed. 2d 956 (1991), as the appropriate standard for determining whether the habeas court abused its discretion in denying certification to appeal. This standard requires the petitioner to 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.... Simms v. Warden, supra, 230 Conn. at 616, 646 A.2d 126. 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. Id.... In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we 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." (Citation omitted; emphasis in original; internal quotation marks omitted.) Castonguay v. Commissioner of Correction , 300 Conn. 649, 657–58, 16 A.3d 676 (2011).

We next address the relevant principles regarding construction of the habeas petition. "Because this appeal arises from the habeas court's ruling dismissing the petition on the basis that the court lacked jurisdiction, we take the facts to be those alleged in the petition, including those facts necessarily implied from the allegations, construing them in favor of the petitioner for purposes of deciding whether the court had subject matter jurisdiction." Anthony A. v. Commissioner of Correction , 326 Conn. 668, 670, 166 A.3d 614 (2017). We also note that "[i]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other...