Bozelko v. Commissioner of Correction ( 2020 )

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CHANDRA BOZELKO v. COMMISSIONER
OF CORRECTION
(AC 42699)
DiPentima, C. J., and Elgo and Beach, Js.
Syllabus
The petitioner, who had been convicted of various crimes, sought a writ of
habeas corpus, claiming that her prior habeas counsel had provided
ineffective assistance. The habeas court rendered judgment dismissing
the petition because the petitioner failed to appear at a status conference.
Thereafter, the court denied the petitioner’s motion to open the judgment
of dismissal in which she argued that she did not receive notice of the
status conference. The petitioner subsequently filed two motions to
reargue, seeking an opportunity to present evidence that she did not
receive notice of the status conference, which the habeas court denied
and, thereafter, on the granting of certification, the petitioner appealed
to this court. On appeal, the petitioner claimed that the habeas court
abused its discretion in dismissing her habeas petition, in denying her
motion to open, and in denying her motions to reargue. Held that the
habeas court abused its discretion in denying the petitioner’s motion
to open the judgment of dismissal on the sole ground that notice of the
status conference was sent properly without having conducted a proper
hearing; although the court had issued a JDNO notice regarding the
status conference and the petitioner was listed as a party to the action,
creating a rebuttable presumption that the petitioner received notice
pursuant to the mailbox rule, the petitioner was entitled to an opportu-
nity to rebut this presumption, which she attempted to do by filing the
motion to open the judgment, a supporting affidavit and motions to
reargue, the petitioner should have been afforded a hearing in which
she could present evidence to rebut the presumption that she received
notice and, accordingly, the case was remanded for a factual determina-
tion as to whether the petitioner knew or should have known of the
status conference and, thus, whether the judgment of dismissal should
be reopened.
Argued December 5, 2019—officially released March 24, 2020
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland, where
the court, Newson, J., granted the respondent’s motion
to dismiss and rendered judgment thereon; thereafter,
the court denied the petitioner’s motion to open the
judgment; subsequently, the court denied the petition-
er’s motions to reargue, and the petitioner, on the grant-
ing of certification, appealed to this court. Reversed;
further proceedings.
Chandra Bozelko, self-represented, the appellant
(petitioner).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were Kevin D. Lawlor, former
state’s attorney, and Angela R. Macchiarulo, senior
assistant state’s attorney, for the appellee (respondent).
Opinion
BEACH, J. In this habeas action, the petitioner, Chan-
dra Bozelko, appeals from the judgment of the habeas
court dismissing her second petition for a writ of habeas
corpus, which alleged that her first appointed habeas
counsel rendered ineffective assistance. On appeal, the
petitioner claims that the habeas court (1) abused its
discretion by dismissing her habeas petition for failing
to appear at a status conference, (2) abused its discre-
tion in denying her motion to open the judgment of
dismissal, and (3) abused its discretion in denying her
motions to reargue. We agree with the petitioner’s sec-
ond claim and, accordingly, reverse the judgment of
the trial court denying her motion to open the judgment
of dismissal.
The following facts and procedural history are rele-
vant to our disposition of the petitioner’s appeal. On
March 14, 2014, the petitioner filed a petition for a writ
of habeas corpus alleging that her first habeas corpus
counsel, James Ruane, rendered ineffective assistance.1
A pretrial hearing was scheduled to take place on
August 9, 2018. On August 9, 2018, the habeas court,
Hon. George Levine, judge trial referee, rendered judg-
ment in favor of the respondent, the Commissioner of
Correction, and dismissed the matter, stating in its
order: ‘‘This case is dismissed for [the] petitioner’s fail-
ure to appear for pretrial.’’2
On September 4, 2018, the court, Newson, J., vacated
the August 9, 2018 dismissal sua sponte, stating: ‘‘It has
come to the attention of the court that the petitioner
did appear for the pretrial as requested and therefore
this case was dismissed in error. The judgment is
opened and this case will proceed in due course.’’ That
same day, two notices were issued, one advising the
parties that the dismissal had been vacated and the
other advising the parties that a status conference was
scheduled for November 2, 2018, at 10 a.m.
On November 2, 2018, the petitioner did not appear
for the status conference. Counsel for the respondent
orally moved for dismissal. The habeas court granted
the motion.3 By order dated November 5, 2018, the
habeas court, Newson, J., rendered judgment in favor
of the respondent and dismissed the case on the basis
of the petitioner’s failure to appear at the November 2,
2018 status conference.
On November 28, 2018, the petitioner filed a motion
to open the judgment of dismissal, arguing, inter alia,
that she did not receive notice of the November 2, 2018
status conference. By order dated November 28, 2018,
the court, Newson, J., denied the motion to open the
judgment. On December 7, 2018, the petitioner filed a
motion to reargue, seeking reconsideration of the
court’s denial of the motion to open and requesting an
opportunity to present evidence to the effect that she
did not receive notice of the November 2, 2018 proceed-
ing. On December 10, 2018, the court denied the motion
to reargue. The petitioner then filed a second motion
to reargue on December 20, 2018, again seeking the
opportunity to introduce evidence in support of her
motion to open. Additionally, the petitioner filed a
sworn affidavit with the motion attesting to the fact that
she had not received written notice of the November
2, 2018 hearing. On December 21, 2018, the court denied
the petitioner’s second motion to reargue.4
On January 16, 2019, the petitioner filed a motion for
permission to file a late appeal, which the habeas court
granted. Thereafter, the petitioner filed a petition for
certification to appeal, which the court granted. This
appeal followed. Additional facts will be set forth as
necessary.
Because we agree with the petitioner as to her second
claim and remand the case accordingly, we address
only that claim that the trial court abused its discretion
in denying her motion to open the judgment of dis-
missal.
‘‘Whether proceeding under the common law or a
statute, the action of a trial court in granting or refusing
an application to open a judgment is, generally, within
the judicial discretion of such court, and its action will
not be disturbed on appeal unless it clearly appears
that the trial court has abused its discretion.’’ (Internal
quotation marks omitted.) Simmons v. Weiss, 176 Conn.
App. 94, 98, 168 A.3d 617 (2017). ‘‘In determining
whether the trial court abused its discretion, this court
must make every reasonable presumption in favor of
its action. . . . The manner in which [this] discretion
is exercised will not be disturbed so long as the court
could reasonably conclude as it did.’’ (Internal quota-
tion marks omitted.) Housing Authority v. Goodwin,
108 Conn. App. 500, 506, 949 A.2d 494 (2008).
A civil judgment rendered on a default or nonsuit
may be opened within four months of the date that the
judgment was rendered upon ‘‘written motion of any
party or person prejudiced thereby, showing reasonable
cause, or that a good cause of action or defense in
whole or in part existed at the time of the rendition of
the judgment . . . and that the [petitioner] was pre-
vented by mistake, accident or other reasonable cause
from prosecuting the action . . . .’’ General Statutes
§ 52-212 (a). ‘‘A motion to open in order to a permit a
party to present further evidence need not be granted
where the evidence offered is not likely to affect the
[prior judgment].’’ Steve Viglione Sheet Metal Co. v.
Sakonchick, 190 Conn. 707, 712, 462 A.2d 1037 (1983).
The petitioner claims in her appellate brief that she
called the clerk’s office in the Superior Court, judicial
district of Tolland at Rockville, on September 11, 2018.
During the phone call, she was informed that the court’s
dismissal was vacated but was not notified that another
hearing date had been set for November 2, 2018. After
the court rendered the second judgment of dismissal,
the petitioner filed a motion to open the judgment, in
which she asserted that she ‘‘had no notice of that
November 2, 2018 status conference and she had been
advised that the case was on the trial list but no date
had been set yet.’’ The petitioner argued the following
in her motion: ‘‘If the November 2, 2018 date was set
down when the case was reopened on September 4,
2018, no notice [was] issued to [the petitioner] and [the
petitioner] was not present to learn of this date. Indeed,
there is a notation, entry [number] 109 on the case
detail that indicates that all dates were erased. Perhaps
the status of this case not needing another status confer-
ence, at least not yet, was deleted and no notice sent.
[The] petitioner doesn’t use the system so it is unclear
what the date erasure notation means. . . .
‘‘There are documented problems with mail delivery
at 183 Wild Rose Drive, Orange, CT, 06477. [The petition-
er’s] father takes painstaking care of the incoming mail
to [that address] to assure that all mail is [received].
He is aware of the problems with the [Superior Court,
judicial district of Tolland at Rockville] and his daugh-
ter’s petition and found no incoming mail from [that
court] since the summer of 2018. . . .
‘‘The only information that [the] petitioner had was
through [assistant state’s attorney] Tamara Grosso,
with whom [the] petitioner spoke on August 9, 2018.
. . . Grosso informed [the] petitioner that [assistant
state’s attorney] Angela Macchiarulo would be in touch
with possible trial dates in July, 2020. Since the matter
was being placed on a trial docket, [the] petitioner had
no reason to believe that another status conference was
necessary so she would not have been awaiting another
court date, outside of an agreed upon trial date for
July, 2020.’’
On appeal, the petitioner argues that the habeas court
abused its discretion in denying her motion to open the
judgment of dismissal, in which she asserted that she
did not receive notice of the November 2, 2018 status
conference. The respondent counters that the mere
existence of evidence of lack of notice does not by
itself mandate the opening of the judgment. We agree
with the respondent in this respect. ‘‘[W]hile it is true
that a judgment may be opened on the grounds of lack
of notice or accidental failure to appear . . . it does not
follow that such circumstances mandate the opening
of a judgment.’’ (Internal quotation marks omitted.) Ere-
mita v. Morello, 111 Conn. App. 103, 106, 958 A.2d
779 (2008).
The petitioner also advocates, however, the more
limited position that the court abused its discretion by
declining to consider evidence of a reasonable cause
for her failure to appear at the November 2, 2018 pro-
ceeding, namely, that she never received notice of such
hearing.5 In her brief, the petitioner notes that she ‘‘filed
an affidavit that has never been challenged nor has
there been any other evidence that contradicts it.6 Yet,
the trial court has ignored this evidence that should be
held against the presumption that notice was received.’’
(Footnote added.) In essence, the petitioner procedur-
ally challenges the habeas court’s decision not to afford
her an opportunity to present evidence regarding her
motion to open the judgment.
The respondent contends that the court did not abuse
its discretion because the evidence offered by the peti-
tioner, even if true, would not have been sufficient to
warrant opening the judgment, nor would such evi-
dence have precluded the court from ‘‘conclud[ing] that
the petitioner had actual notice of the court date
because: (1) as of September 11, 2018, she was aware
that the August [9, 2018] dismissal had been vacated
and the case was active; and (2) information concerning
the scheduled court dates was publicly available on
the judicial website.’’ The respondent suggests that the
habeas court properly denied the petitioner’s motion
because, ultimately, it still reasonably could have con-
cluded that the petitioner’s failure to appear actually
was due to inattention or negligence, and not lack of
notice. The respondent cites to Eremita v. Morello,
supra, 111 Conn. App. 103, and Moore v. Brancard, 89
Conn. App. 129, 133, 872 A.2d 909 (2005), as examples
of instances in which, after conducting a hearing, the
court denied the motion to open the judgment because
it found no good cause for the movant’s failure to
appear. The habeas court in the present case denied
the motion to open on the sole ground that notice was
properly sent.7 The petitioner, nonetheless, contends
that notice was never received.
The issue of notice of the November 2, 2018 proceed-
ing, then, hinges on the applicability of the mailbox rule.
The mailbox rule ‘‘provides that a properly stamped
and addressed letter that is placed into a mailbox or
handed over to the United States Postal Service raises
a rebuttable presumption that it will be received.’’ Echa-
varria v. National Grange Mutual Ins. Co., 275 Conn.
408, 418, 880 A.2d 882 (2005). This court has specifically
stated that a JDNO notation, which is ‘‘used to indicate
that a judicial notice of a decision or order has been
sent by the clerk’s office to all parties of record . . .
raises a presumption that notice was sent and received
in the absence of a finding to the contrary.’’ (Emphasis
added; internal quotation marks omitted.) McTiernan
v. McTiernan, 164 Conn. App. 805, 808 n.2, 138 A.3d
935 (2016).
‘‘Because the presumption is rebuttable, it follows
that the plaintiff is entitled to a hearing to have an
opportunity to present such rebuttal evidence. When
the trial court is required to make a finding that depends
on issues of fact [that] are disputed, due process
requires that a trial-like hearing be held, in which an
opportunity is provided to present evidence and to
cross-examine adverse witnesses.’’ (Internal quotation
marks omitted.) Morelli v. Manpower, Inc., 34 Conn.
App. 419, 423–24, 642 A.2d 9 (1994).
Here, the court issued a JDNO notice regarding the
November 2, 2018 status conference on September 4,
2018, and the petitioner is listed as a party to the action.8
As such, there is a rebuttable presumption that the
petitioner received notice of the conference scheduled
for November 2, 2018. The petitioner was entitled to
an opportunity to rebut this presumption, however, and
she attempted to do so by filing the motion to open the
judgment and the subsequent affidavit and motions to
reargue pursuant to § 52-212 (a). The respondent argues
that this court ‘‘may assume that the habeas court con-
sidered and rejected the affidavit offered by the peti-
tioner in support of her alleged lack of notice . . . .’’
In this case, however, whether there was reasonable
cause for the petitioner’s failure to appear depends on
whether she received written notice of the November
2, 2018 proceeding. The petitioner should have been
afforded a hearing, in which she could present evidence
to rebut the presumption that she did receive notice.
We, therefore, conclude that the habeas court improp-
erly denied the petitioner’s motion to open the judgment
of dismissal without conducting a proper hearing.
Accordingly, we remand the case for a factual determi-
nation as to whether the petitioner knew or should have
known of the November 2, 2018 status conference and,
thus, whether the judgment of dismissal should be
opened.
The habeas court’s denial of the motion to open is
reversed and the case is remanded for further proceed-
ings consistent with this opinion.
In this opinion the other judges concurred.
1
The petitioner was convicted, after a jury trial, of attempt to commit
larceny in the first degree in violation of General Statutes §§ 53a-122 and
53a-49; larceny in the third degree in violation of General Statutes § 53a-
124; two counts of larceny in the fifth degree in violation of General Statutes
§ 53a-125a; identify theft in the first degree in violation of General Statutes
§ 53a-129b; three counts of identity theft in the third degree in violation of
General Statutes § 53a-129d; two counts of attempt to commit illegal use of
a credit card in violation of General Statutes §§ 53a-128d and 53a-49; two
counts of illegal use of a credit card in violation of § 53a-128d; and two
counts of forgery in the third degree in violation of General Statutes § 53a-
140. She received a total effective sentence of ten years of incarceration,
execution suspended after five years, and four years of probation. These
convictions were affirmed on direct appeal. State v. Bozelko, 119 Conn. App.
483, 486–87, 987 A.2d 1102, cert. denied, 295 Conn. 916, 990 A.2d 867 (2010).
Subsequently, the petitioner filed her first petition for a writ of habeas
corpus claiming ineffective assistance of her criminal trial counsel, which
was denied by the habeas court. The petitioner appealed the habeas court’s
judgment, claiming that it had erred in denying her claim that her criminal
trial counsel was ineffective for failing to investigate effectively. See Bozelko
v. Commissioner of Correction, 162 Conn. App. 716, 717, 133 A.3d 185, cert.
denied, 320 Conn. 926, A.3d 458 (2016). The petitioner filed a second habeas
petition, which is at issue before us, alleging ineffective assistance of her
first habeas counsel.
2
The proceedings were not conducted on the record.
3
The following colloquy occurred:
‘‘[The Respondent’s Counsel]: [The petitioner] has [been] fully discharged.
She’s not on probation. She’s not on parole. She is out. She did not appear
last time and we gave her the benefit of the doubt by continuing her matter
one month. May I move for dismissal?
‘‘The Court: Give me one moment. Okay. Again, court’s reviewing the file.
Doesn’t appear that there, at least any correspondence in the file. Anything
that the clerk is aware of?’’
‘‘The Clerk: There are no new filings since September, Judge.
‘‘The Court: Okay. Okay. Again, given the standard notification that goes
out, the court will order the matter dismissed based on the petitioner’s
failure to appear.’’
4
The court treated the second motion to reargue as a request for reconsid-
eration of the judgment of dismissal, the denial of the motion to open the
judgment, and the denial of the first motion to reargue.
5
Although the petitioner does not phrase her argument in this manner,
the arguments and assertions put forth by the petitioner in her main appellate
brief and reply brief—‘‘[p]etitioner moved several times for the opportunity
to present evidence against that presumption and was not allowed to do
so’’—make clear she is challenging the lack of an opportunity to present
evidence.
6
The affidavit contains largely the same assertions as those included in
the petitioner’s motion to open the judgment.
7
The order denying the motion to open stated that ‘‘[a]ll notices for
the [November 2, 2018] status conference were properly addressed to the
petitioner’s current address.’’ All further attempts by the petitioner to show
lack of receipt were summarily denied by the court.
8
The notice provided in relevant part the following: ‘‘[November 2, 2018]
at 10 a.m. Counsel and self-represented petitioners are ordered and required
to attend a status conference on the above date and time at 20 Park [Street],
Rockville, [Connecticut], to discuss the status of the pleadings. . . . Coun-
sel’s failure to appear or self-represented petitioner’s failure to appear via
video may result in sanctions, judgment of dismissal or default.’’