State v. Green ( 2021 )

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STATE OF CONNECTICUT v. COURTNEY GREEN
(AC 42975)
Bright, C. J., and Prescott and DiPentima, Js.
Syllabus
The defendant, who had been convicted in 2009 on a plea of guilty to three
counts of the crime of assault in the first degree, appealed from the
trial court’s dismissal of his 2018 motion to withdraw his plea, in which
he claimed that the plea was obtained in violation of his due process
rights because the trial court failed to inquire as to whether the plea
was the result of force, threats or promises apart from a plea agreement,
as required by the applicable rule of practice (§ 39-20). The trial court
dismissed the motion for lack of subject matter jurisdiction. On appeal,
the defendant conceded that the trial court lacked jurisdiction to con-
sider his motion but requested that this court exercise its supervisory
authority pursuant to the applicable rule of practice (§ 60-2) to treat
the appeal as an authorized late appeal from his 2009 conviction. Held:
1. This court had the authority to review the merits of the trial court’s
dismissal of the postsentencing motion to withdraw the defendant’s
guilty plea: reviewing courts have jurisdiction to determine whether a
trial court had subject matter jurisdiction; moreover, even though the
defendant conceded that the court properly dismissed his motion, the
appeal was justiciable because there was an actual controversy as to
whether this court should exercise its supervisory authority to treat the
defendant’s appeal of the dismissal of his motion as an authorized late
appeal of his judgment of conviction, the parties’ positions on the issue
were adverse, this court had the power to resolve the controversy pursu-
ant to Practice Book § 60-2, and it could have granted practical relief
to the defendant.
2. The defendant failed to demonstrate that it was appropriate for this court
to invoke its supervisory authority pursuant to Practice Book § 60-2 to
treat his appeal from what he conceded was the correct judgment of
the trial court as an untimely appeal from the judgment of conviction
that was rendered more than ten years ago: this court’s supervisory
powers should be invoked only in rare and unique circumstances in
which traditional procedural limitations would be inadequate to ensure
the fair and just administration of the courts; moreover, the circum-
stances of the defendant’s case were not rare or unique because he had
ample opportunities to challenge his judgment of conviction prior to
this appeal, yet he failed to do so.
Argued March 1—officially released July 27, 2021
Procedural History
Substitute information charging the defendant with
six counts of the crime of assault in the first degree,
brought to the Superior Court in the judicial district
of Stamford-Norwalk, geographical area number one,
where the defendant was presented to the court, Hon.
Martin L. Nigro, judge trial referee, on a plea of guilty
to three counts of the crime of assault in the first degree;
judgment of guilty in accordance with the plea; there-
after, the state entered a nolle prosequi as to the three
remaining counts of assault in the first degree; subse-
quently, the court, White, J., denied the defendant’s
motion to withdraw his guilty plea, and the defendant
appealed to this court. Affirmed.
James P. Sexton, assigned counsel, with whom, on
the brief, was Emily Graner Sexton, assigned counsel,
for the appellant (defendant).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Paul Ferencek, state’s
attorney, and Maureen Ornousky, senior assistant
state’s attorney, for the appellee (state).
Opinion
BRIGHT, C. J. The defendant, Courtney Green,
appeals from the judgment of the trial court dismissing
his motion to withdraw his guilty plea in connection
with his 2009 judgment of conviction rendered after he
pleaded guilty to three counts of assault in the first
degree in violation of General Statutes § 53a-59 (a) (5).
The defendant concedes that the trial court lacked juris-
diction to consider his motion to withdraw his guilty
plea. This concession notwithstanding, the defendant,
relying on State v. Reid, 277 Conn. 764, 894 A.2d 963(2006), requests that this court exercise its supervisory
authority to treat this appeal as an authorized late
appeal from his 2009 conviction. We decline to do so
and affirm the judgment of the trial court.
The record reveals the following facts and procedural
history. In July, 2008, the defendant was engaged in
an altercation that resulted in the shooting of three
individuals outside of a bar in Stamford. The defendant
was arrested and charged with six counts of assault in
the first degree.1 In April, 2009, the defendant entered
an open plea2 of guilty to three counts3 of assault in the
first degree. In July, 2009, the court, Comerford, J.,
sentenced the defendant to twenty years of incarcera-
tion on each count to run concurrent to each other for
a total effective sentence of twenty years of incarcera-
tion.
In February, 2015, the defendant filed a petition for
a writ of habeas corpus challenging his 2009 conviction.
Green v. Commissioner of Correction, 172 Conn. App.
585, 588, 160 A.3d 1068, cert. denied, 326 Conn. 907,
163 A.3d 1206 (2017). The defendant claimed that his
criminal defense counsel had rendered ineffective assis-
tance by failing to provide adequate advice with regard
to his guilty plea. Id. Additionally, the defendant claimed
that the trial court’s failure to inquire into whether he
was under the influence of any medications that might
impair his judgment rendered his plea not knowing and
voluntary. Id. In July, 2015, the habeas court denied the
petition because the defendant had failed to establish
prejudice with respect to his claim of ineffective assis-
tance of counsel. Id., 590. The habeas court also rejected
the defendant’s claim that his plea was not knowing
and voluntary because there was no credible evidence
that the defendant was under the influence of any sub-
stance that negatively impacted his ability to enter a
knowing and voluntary plea. Id., 590–91. This court
affirmed the judgment of the habeas court. Id., 599.
In June, 2018, the defendant filed a motion with the
trial court to withdraw the guilty plea he had entered
in April, 2009. The defendant claimed that the plea was
obtained in violation of his due process rights because
the trial court failed to inquire into whether the plea
was ‘‘not the result of force, [or] threats or of promises
apart from a plea agreement,’’ as mandated by Practice
Book § 39-20.4 (Internal quotation marks omitted.) In
October, 2018, the court dismissed the defendant’s
motion to withdraw his guilty plea for lack of subject
matter jurisdiction. This appeal followed.
I
As previously noted in this opinion, the defendant
does not claim on appeal that the court improperly
dismissed his motion to withdraw his guilty plea. In
fact, the defendant stated in his principal brief: ‘‘The
defendant does not challenge the trial court’s October
15, 2018 judgment dismissing his motion to withdraw
his guilty plea for lack of subject matter jurisdiction.
To the contrary, the defendant now concedes that the
trial court did not have jurisdiction over that motion.’’
Instead, on appeal, the defendant requests that this
court invoke its supervisory authority, in reliance on
our Supreme Court’s opinion in State v. Reid, supra,277 Conn. 764, and treat the present appeal as an author-
ized late appeal from the defendant’s 2009 judgment
of conviction. The defendant contends that the 2009
judgment of conviction should be reversed and the case
remanded with direction to vacate his April, 2009 guilty
plea because the plea that he entered was obtained
in violation of his due process rights. Specifically, the
defendant argues that the trial court failed to inquire
into whether the plea was the ‘‘result of force or threats
or of promises apart from a plea agreement.’’ (Internal
quotation marks omitted.) In its appellate brief, the
state argues that this court lacks jurisdiction to hear
the present appeal and, alternatively, argues that this
court should decline the defendant’s request to invoke
its supervisory authority. For the reasons that follow,
we disagree with the state’s jurisdictional argument,
but we decline the defendant’s request to invoke our
supervisory authority to treat the present appeal as an
authorized late appeal of the defendant’s 2009 judgment
of conviction.
We begin by addressing the state’s jurisdictional argu-
ment. First, the state argues that, ‘‘if . . . a defendant
seeks to challenge the trial court’s dismissal of a post-
sentencing motion to withdraw his plea, over which
that court lacks jurisdiction, this court also would lack
jurisdiction to review the merits of the trial court’s
dismissal of that motion.’’ (Internal quotation marks
omitted.) Second, the state claims, alternatively, that
this appeal must be dismissed because it is not justicia-
ble. The state argues that there is no actual controversy
for this court to resolve on appeal because the defen-
dant concedes that the trial court properly dismissed
his motion to withdraw his guilty plea. We disagree
with both arguments.
Because the state has raised a question regarding this
court’s subject matter jurisdiction, we must address the
jurisdictional issue before proceeding further with this
appeal. See State v. Sebben, 145 Conn. App. 528, 536,
77 A.3d 811 (‘‘[w]henever a jurisdictional question is
raised, the court must resolve it before it may proceed
further with an appeal’’), cert. denied, 310 Conn. 958,
82 A.3d 627 (2013), cert. denied, 572 U.S. 1088, 134 S.
Ct. 1950, 188 L. Ed. 2d 962 (2014); State v. Cayo, 143
Conn. App. 194, 196–97, 66 A.3d 887 (2013) (‘‘[t]he state
has raised a question regarding this court’s subject mat-
ter jurisdiction, which we must address before moving
on to the merits of the defendant’s claim on appeal’’).
‘‘Whether a court has subject matter jurisdiction is a
question of law over which our review is plenary.’’ State
v. Delgado, 116 Conn. App. 434, 437, 975 A.2d 736 (2009).
In the present case, the state’s contention that ‘‘when,
as here, a defendant seeks to challenge the trial court’s
dismissal of a postsentencing motion to withdraw his
plea, over which that court lacks jurisdiction, this court
is without jurisdiction to review the trial court’s dis-
missal of that motion’’ is without merit. Reviewing
courts have jurisdiction to determine whether the trial
court lacked jurisdiction. See State v. Cayo, supra, 143
Conn. App. 199 (‘‘we have jurisdiction to determine
whether the trial court had subject matter jurisdiction
to hear the case’’ (internal quotation marks omitted));
State v. Martin M., 143 Conn. App. 140, 144 n.1, 70 A.3d
135 (‘‘[t]his court has jurisdiction to determine whether
a trial court had subject matter jurisdiction to hear a
case’’), cert. denied, 309 Conn. 919, 70 A.3d 41 (2013).
Second, the state argues that the present appeal is
not justiciable because there is no actual controversy
for this court to resolve on appeal. The defendant con-
cedes that the trial court properly dismissed his motion
to withdraw his guilty plea, which, according to the
state, forecloses the justiciability of this appeal.
In response, the defendant argues that this appeal is
justiciable because there is a live dispute between the
parties as to whether the court can and should exercise
its supervisory authority to treat this appeal as an
authorized late appeal from the defendant’s 2009 con-
viction. Furthermore, the defendant argues that this
court can grant practical relief to the defendant by
exercising its supervisory authority and reversing the
judgment of conviction. We agree with the defendant.
‘‘Because courts are established to resolve actual con-
troversies, before a claimed controversy is entitled to
a resolution on the merits it must be justiciable. Justicia-
bility requires (1) that there be an actual controversy
between or among the parties to the dispute . . . (2)
that the interests of the parties be adverse . . . (3) that
the matter in controversy be capable of being adjudi-
cated by judicial power . . . and (4) that the determi-
nation of the controversy will result in practical relief
to the complainant. . . . [T]he requirement of an actual
controversy . . . is premised upon the notion that
courts are called upon to determine existing controver-
sies, [and therefore] may not be used as a vehicle to
obtain judicial opinions on points of law. . . . An
actual controversy exists where there is an actual bona
fide and substantial question or issue in dispute or sub-
stantial uncertainty of legal relations which requires
settlement . . . . It is well settled that the actual con-
troversy must exist at all times during the appeal . . .
and that facts arising during, or subsequent to, the
action in question may render such a controversy obso-
lete.’’ (Citations omitted; internal quotation marks omit-
ted.) Board of Education v. Naugatuck, 257 Conn. 409,
416–17, 778 A.2d 862 (2001).
We agree with the defendant that all four require-
ments for justiciability are met in the present case.
There is an actual controversy between the parties as
to whether this court should exercise its supervisory
authority; the parties’ positions are adverse on this
issue; the court has the power to resolve the contro-
versy; and the court could grant the defendant practical
relief, if it agreed to use its authority as the defendant
requests.
In particular, our rules of practice and our Supreme
Court’s analysis in State v. Reid, supra, 277 Conn. 764,
are instructive. ‘‘We have recognized repeatedly that
[t]he rules of practice vest broad authority in the Appel-
late Court for the management of its docket.’’ (Internal
quotation marks omitted.) Novak v. Levin, 287 Conn. 71,
80, 951 A.2d 514 (2008). Practice Book § 60-2 explicitly
provides that the court’s broad supervisory powers
extend to allowing the filing of late appeals and late
documents of all types. Practice Book § 60-2 provides
in relevant part that ‘‘[t]he supervision and control of
the proceedings shall be in the court having appellate
jurisdiction from the time the appellate matter is filed,
or earlier, if appropriate, and, except as otherwise pro-
vided in these rules, any motion the purpose of which
is to complete or perfect the record of the proceedings
below for presentation on appeal shall be made to the
court in which the appeal is pending. The court may,
on its own motion or upon motion of any party, modify
or vacate any order made by the trial court, or a judge
thereof, in relation to the prosecution of an appeal. It
may also, for example, on its own motion or upon
motion of any party . . . order that a party for good
cause shown may file a late appeal, petition for certifica-
tion, brief or any other document unless the court lacks
jurisdiction to allow the late filing . . . .’’ Practice
Book § 60-3 provides that ‘‘[i]n the interest of expediting
decision, or for other good cause shown, the court in
which the appellate matter is pending may suspend the
requirements or provisions of any of these rules on
motion of a party or on its own motion and may order
proceedings in accordance with its direction.’’
In State v. Reid, supra, 277 Conn. 773, our Supreme
Court addressed whether it had ‘‘jurisdiction to con-
sider the merits of [a] defendant’s challenge to his guilty
plea within the confines of [its] authority to review the
trial court’s judgment denying [the defendant’s] motion
to withdraw [his guilty] plea.’’ Reid involved a defen-
dant’s appeal from a judgment of conviction of assault
in the second degree, wherein the defendant challenged
the judgment of the trial court denying his motion to
withdraw his guilty plea. Id., 767. The defendant, in
April, 1997, had entered a guilty plea to a substitute
information charging him with one count of assault in
the second degree in violation of General Statutes § 53a-
60. Id., 767–68. During the plea hearing, the state
‘‘requested that the defendant enter his plea to a substi-
tuted charge of assault in the second degree, a violation
of [General Statutes §] 53a-61,’’ which addresses third
degree assault not second degree assault. (Internal quo-
tation marks omitted.) Id., 768. Upon learning that the
defendant was not a United States citizen, the trial court
explained to the defendant that he was pleading guilty
to a felony and could face deportation from the United
States as a consequence of his plea. Id., 770. The defen-
dant affirmed that he understood the possible deporta-
tion consequences and confirmed that he still wished
to enter a guilty plea. Id.
A few months later, the defendant was found guilty
of sexual assault and kidnapping charges in another
matter. Id. In 1999, the federal government commenced
deportation proceedings against the defendant, citing
the defendant’s sexual assault conviction as the basis
for deportation. Id. In May, 2003, the trial court granted
the defendant’s petition for a new trial and vacated the
sexual assault and kidnapping convictions. Id., 770–71.
In June, 2003, the Department of Homeland Security
substituted the defendant’s April, 1997 conviction of
assault in the second degree in place of the vacated
November, 1997 conviction as the basis for deporting
the defendant. Id., 771. In August, 2003, the United
States Immigration Court denied the defendant’s
motion to terminate the deportation proceedings, and
the defendant thereafter was expelled from the United
States. Id.
In 2004, the defendant filed a motion to withdraw his
plea of guilty to assault in the second degree. Id. The
defendant claimed that the trial court never ‘‘advised
him of the elements of the crime for which he was
convicted, nor did the record of the proceedings demon-
strate that the defendant’s attorney had advised him of
the necessary elements. The defendant also claimed
that his attorney’s representation may have been inef-
fective and that he was denied his right to allocution.’’
Id. The trial court noted that the motion to withdraw
the plea was untimely, but it considered the motion
because the defendant asserted constitutional claims
that could be reviewed. Id. The trial court denied the
motion to withdraw on the basis that ‘‘the defendant
had not demonstrated a clear constitutional violation,
nor had [the defendant] demonstrated a clear depriva-
tion of his right to a fair hearing.’’ Id., 771–72. The
defendant then appealed from the trial court’s judg-
ment. Id., 772.
In response to the defendant’s appeal, the state
argued that the appeal should be dismissed because
the trial court lacked jurisdiction to consider the defen-
dant’s motion to withdraw his guilty plea. Id. Our
Supreme Court concluded ‘‘that the trial court lacked
jurisdiction to consider the defendant’s motion to with-
draw his plea, but . . . we nevertheless may review
his constitutional claim that his plea was not given
knowingly and voluntarily.’’ Id., 773. In particular, the
court held that it ‘‘would have jurisdiction to consider
an untimely appeal by the defendant.’’ Id., 778. Further-
more, the court held that it was appropriate to exercise
its supervisory powers pursuant to Practice Book § 60-
2, due to the unique circumstances of the case, and to
treat the defendant’s appeal ‘‘as if a motion to file an
untimely appeal had been made and granted, and an
appeal from the April, 1997 judgment of conviction of
assault in the second degree [had been] filed pursuant
to General Statutes § 52-263.’’ Id., 778–79.
Applying the same analysis in the present case, we
have the authority, if we choose to exercise it, to resolve
the issues as to which the parties have a controversy.
The defendant’s appeal, therefore, raises justiciable
issues.
II
We now address the defendant’s request, in reliance
on Reid, that we invoke our supervisory authority and
treat the present appeal as an authorized late appeal
of the defendant’s 2009 judgment of conviction. We
decline to do so.
We begin with a further discussion of our Supreme
Court’s reasoning in Reid. The court in Reid noted that
‘‘[w]e recognize that [c]onstitutional, statutory and pro-
cedural limitations are generally adequate to protect
the rights of the defendant and the integrity of the
judicial system. Our supervisory powers are invoked
only in the rare circumstance where these traditional
protections are inadequate to ensure the fair and just
administration of the courts.’’ (Internal quotation marks
omitted.) Id., 778. The court held that such rare circum-
stances were present in that case. Id. The court noted
that the defendant was given an impetus for the first
time to challenge his second degree assault conviction
when the defendant’s November, 1997 conviction was
vacated and his April, 1997 conviction was substituted
as the basis for his deportation, and it noted further
that the defendant consistently had sought review of
his April, 1997 conviction in federal and state court.
Id., 778–79. The court noted that in August, 2003, the
defendant had filed a motion to terminate the deporta-
tion proceedings with the United States Immigration
Court, and, in September, 2003, he had filed a motion
to correct the sentence resulting from the guilty plea.
Id., 779. Additionally, the court noted that in February,
2004, one month after he was deported, the defendant
filed a motion to withdraw his guilty plea. Id. Further-
more, the defendant was unable to bring an action for
state habeas corpus relief because he was no longer in
the custody of the government. Id., 779 n.17. In light of
these unique circumstances, the court concluded that
the procedural posture of the case warranted consider-
ation of the defendant’s constitutional claim and, thus,
it treated the defendant’s claim ‘‘as if a motion to file
an untimely appeal had been made and granted, and
an appeal from the April, 1997 judgment of conviction
of assault in the second degree [had been] filed pursuant
to General Statutes § 52-263.’’ Id., 779.
Significantly, since Reid, neither our Supreme Court
nor this court has encountered an appeal with similar
rare and unique circumstances that would warrant the
exercise of our supervisory authority in the same man-
ner.5 See State v. Ramos, 306 Conn. 125, 141–42, 49 A.3d
197 (2012) (declining defendant’s request that Supreme
Court exercise its supervisory authority to treat appeal
from trial court’s denial of motion to vacate as request
to file untimely appeal, as Supreme Court did in Reid,
due to lack of rare and unique circumstances that were
present in Reid); State v. Barriga, 165 Conn. App. 686,
692–93, 140 A.3d 292 (2016) (declining defendant’s
request that this court exercise its supervisory authority
pursuant to Practice Book § 60-2 and Reid to accept
untimely appeal of conviction, due to inadequate record
and availability of adequate remedies that defendant
failed to utilize); State v. Alegrand, 130 Conn. App.
652, 671–72, 23 A.3d 1250 (2011) (declining defendant’s
request, relying on Reid, that this court exercise its
supervisory powers to consider merits of his constitu-
tional claims because defendant failed to persuade this
court that his case was rare one warranting appellate
review under its supervisory powers); State v. DeVivo,
106 Conn. App. 641, 648, 942 A.2d 1066 (2008) (noting
that defendant ‘‘ha[d] not argued that the circumstances
of his case [were] rare and unique such that it would
have been appropriate to invoke our supervisory pow-
ers, as was necessary in Reid, to reach the merits of
the motion to withdraw the plea’’). The present case is
also different from Reid.
Unlike in Reid, the defendant in the present case has
had ample opportunities to challenge his judgment of
conviction. Prior to his sentencing in 2009, the defen-
dant could have, but did not, file a timely motion to
withdraw his guilty plea. At that time, he was fully aware
of the canvass the court gave him when he entered his
plea. Subsequent to his 2009 judgment of conviction,
and after receiving his sentence of twenty years of incar-
ceration, the defendant failed to take a timely direct
appeal of the judgment of conviction on the ground
that the trial court failed to canvass him as mandated
by Practice Book § 39-20 to ensure that his plea was
voluntary and was not the result of force, threats or
promises apart from the plea agreement. Additionally,
although the defendant challenged the voluntariness of
his guilty plea on other grounds during his habeas
action, he did not raise the ground he now wishes to
raise on appeal, even though he had the opportunity to
do so. The defendant also has not brought a habeas
action claiming ineffective assistance by his habeas
counsel for failing to raise in that habeas action the
due process issue that is the subject of this appeal.
Finally, the defendant has not filed a motion for permis-
sion to file a late appeal challenging the voluntariness
of his plea, in which he would have had to demonstrate
good cause for his failure to file a timely appeal. See
Practice Book § 60-2 (5).
In sum, the defendant has not persuaded us that the
procedural and factual circumstances of the present
case constitute the rare and unique circumstances that
are appropriate for this court to invoke its supervisory
authority to treat an appeal from what he admits is a
correct judgment as an untimely appeal from a judg-
ment that was rendered more than ten years ago.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant was charged with three counts of assault in the first
degree in violation of § 53a-59 (a) (3) and three counts of assault in the first
degree in violation of § 53a-59 (a) (5).
2
The defendant entered an ‘‘open plea,’’ which means that there was no
agreement with the state or the court regarding the sentence to be imposed.
3
The state entered a nolle prosequi as to the other three charges at the
time of sentencing.
4
Practice Book § 39-20 provides in relevant part: ‘‘The judicial authority
shall not accept a plea of guilty or nolo contendere without first determining,
by addressing the defendant personally in open court, that the plea is volun-
tary and is not the result of force or threats or of promises apart from a
plea agreement. . . .’’
5
In State v. Redmond, 177 Conn. App. 129, 137 n.16, 171 A.3d 1052 (2017),
this court decided the merits of an untimely writ of error brought by the
plaintiff in error, Patrick C. Redmond, and cited Reid for the proposition
that ‘‘failure to take [a] timely appeal or bring [a] timely writ of error renders
the matter voidable, but not void, and [the] court has discretion to hear
[the] matter.’’ We did not compare the facts of that case to those in Reid
and merely noted in a footnote that we were considering the untimely writ
of error ‘‘because of the unusual circumstances of this matter and because
our Supreme Court elected to transfer this matter to this court under Practice
Book § 65-1, rather than dismissing it pursuant to its authority under Practice
Book § 72-3 (a), which provides in relevant part that the Supreme Court
may dismiss a writ of error that is untimely brought without cause. The
state did not move either the Supreme Court or this court to dismiss this
writ as untimely. Additionally, when Redmond brought his direct appeal,
we dismissed it because he was a nonparty to the criminal matter, and we
stated that he should have raised his claims through a writ of error. Following
this suggestion, Redmond initiated the writ of error six days later on Decem-
ber 14, 2015, which is within the twenty day period provided by Practice
Book § 72-3 (a).’’ Id. None of these circumstances exists in the present case.