State v. Brown

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STATE OF CONNECTICUT v. ACEION BROWN

(AC 38855)

Keller, Bright and Mihalakos, Js.

Syllabus

The defendant, who had been convicted, on a plea of guilty, of the crime

of possession of more than four ounces of marijuana, appealed to this

court from the judgment of the trial court denying his petition for a

writ of error coram nobis. In his petition, the defendant sought to vacate

his conviction, claiming that, at the time he had entered the plea, he

did not understand the immigration consequences that would result

from the plea and conviction, and that his trial counsel’s failure to advise

him of those consequences constituted ineffective assistance of counsel.

The trial court, after considering the petition on its merits, denied the

petition. Held that the trial court lacked subject matter jurisdiction to

consider the merits of the petition for a writ of error coram nobis: the

defendant could have raised his ineffective assistance of counsel claim

in a habeas petition while he was in custody related to the subject

conviction or in a petition for a new trial for a period of three years

subsequent to the date of that conviction, and, therefore, he had prior

alternative legal remedies available to him, which deprived the trial

court of jurisdiction to entertain the petition; accordingly, because the

trial court lacked jurisdiction over the petition for a writ of error coram

nobis, it should have rendered judgment dismissing rather than denying

the petition.

Argued November 14, 2017—officially released January 23, 2018

Procedural History

Information charging the defendant with the crimes

of possession of narcotics with intent to sell, possession

of narcotics within 1500 feet of a school and possession

of more than four ounces of marijuana, brought to the

Superior Court in the judicial district of Hartford, geo-

graphical area number fourteen, where the defendant

was presented to the court, Lobo, J., on a plea of guilty

to possession of more than four ounces of marijuana;

judgment of guilty; thereafter, the court, Alexander, J.,

denied the defendant’s petition for a writ of error coram

nobis, and the defendant appealed to this court.

Improper form of judgment; judgment directed.

Vishal K. Garg, for the appellant (defendant).

Nancy L. Walker, deputy assistant state’s attorney,

with whom, on the brief, were Gail P. Hardy, state’s

attorney, and Matthew W. Brodsky, senior assistant

state’s attorney, for the appellee (state).

Opinion

MIHALAKOS, J. The defendant, Aceion Brown,

appeals from the judgment of the trial court denying

his petition for a writ of error coram nobis. We conclude

that, in the circumstances presented, the court lacked

jurisdiction to consider the merits of the petition, and

we do not reach the merits of his ineffective assistance

of counsel claim. Because the court should have dis-

missed the petition, rather than having denied it, we

reverse the judgment of the trial court only as to the

form of the judgment and remand the case with direc-

tion to dismiss the petition for a writ of error coram

nobis.

The following facts and procedural history are rele-

vant to our disposition of this appeal. The defendant is

a native and citizen of Jamaica, and a permanent resi-

dent of the United States. He is the father of two children

who are citizens of the United States. In December,

2011, the defendant pleaded guilty to possession of a

controlled substance with intent to sell in violation of

General Statutes § 21a-277 (b) and was sentenced to

three years incarceration, execution suspended, and

two of years probation. In April, 2013, the defendant

was arrested again on multiple drug related charges.

On May 22, 2013, the defendant, represented by coun-

sel, entered a guilty plea, under the Alford doctrine,1

to the crime of possession of more than four ounces

of marijuana in violation of General Statutes (Rev. to

2013) § 21a-279 (b) and admitted a violation of the pro-

bation imposed on his 2011 conviction. Prior to

accepting his plea, the court, Lobo, J., asked, while

canvassing the defendant, if he understood that if he

was not a United States citizen, he ‘‘may face the conse-

quence of removal, exclusion from readmission to the

[United States] or denial of naturalization, pursuant to

federal law,’’ to which the defendant responded, ‘‘[y]es,

sir.’’ The court then accepted his plea and sentenced

him to a term of incarceration of 364 days.

The defendant completed his sentence on March 17,

2014. On the same day, the Department of Homeland

Security served the defendant with a notice to appear,

alleging that he was removable from the country on the

basis of both his 2011 and 2013 convictions. Subse-

quently, on May 19, 2014, the immigration court ordered

the removal of the defendant to Jamaica.

On February 10, 2015, the self-represented defendant

filed a petition for a writ of error coram nobis, in which

he alleged, inter alia, that he received ineffective assis-

tance from his trial counsel and that, consequently, he

lacked knowledge of the nature and consequences of

the subject charge.2 On this ground, he requested that

the judgment of conviction be opened and vacated.

The court, Alexander, J., held a hearing on the peti-

tion on April 23, 2015. At the hearing, the court indicated

to the parties that it was concerned that it lacked juris-

diction to entertain a petition for a writ of error coram

nobis, stating ‘‘the trial court . . . would be without

jurisdiction to [hear] a habeas claim. Those claims are

handled by habeas courts . . . [s]o an ineffective assis-

tance claim is a matter that is taken before a habeas

court as opposed to the original trial court . . . .’’ The

court nevertheless proceeded to hear evidence on the

merits of the petition. It reviewed a transcript of the

defendant’s plea proceeding, noting that the court had

provided the defendant with the standard advisement

regarding immigration consequences, and heard argu-

ments from the defendant and the state on the merits

of the petition. The defendant argued that he had not

understood that serious immigration consequences,

namely, that his 2013 conviction would render him

deportable and permanently inadmissible to the United

States, would result from his plea, and that his trial

counsel’s failure to advise him of these consequences

constituted ineffective assistance of counsel. The state

argued that the court should deny the petition on juris-

dictional grounds because the defendant had adequate

remedies under the law and could have filed a habeas

petition, a petition for a new trial, a postsentencing

motion to withdraw his guilty plea, or a direct appeal

from his conviction. On August 18, 2015, the court

issued a written memorandum of decision, in which it

denied the defendant’s petition on the merits, holding

that the plea canvass did not violate General Statutes

§ 54-1j. This appeal followed.

During the pendency of this appeal, the defendant

filed a motion for articulation, which requested, inter

alia, that the court specify whether it concluded that

it lacked jurisdiction to hear the claim of ineffective

assistance of counsel raised in the petition. The court

granted this motion in part, stating, ‘‘[y]es, the court

concluded that it lacked jurisdiction to hear a claim of

ineffective assistance of counsel raised in a coram nobis

petition because the defendant had habeas corpus relief

available. State v. Stephenson, 154 Conn. App. 587, 592,

108 A.3d 1125 (2015).’’

The defendant’s sole claim on appeal is that the court

erred in denying his petition on jurisdictional grounds.3

The defendant primarily argues that a writ of habeas

corpus had been unavailable to him because he was

not aware that his guilty plea would have adverse immi-

gration consequences until after his period of incarcera-

tion had ended. In response, the state argues that the

trial court lacked jurisdiction to issue the writ because

the defendant had alternative legal remedies available

to him, such as a writ of habeas corpus or a petition

for a new trial, and that, pursuant to State v. Stephenson,

supra, 154 Conn. App. 592, the relevant question is not

whether the defendant took advantage of those reme-

dies but, rather, whether he could have pursued them.

We agree with the state that the court lacked jurisdic-

tion to consider a petition for a writ of error coram

nobis.

We begin our analysis by setting forth the applicable

standard of review and relevant legal principles. Our

Supreme Court has long held that ‘‘because [a] determi-

nation regarding a trial court’s subject matter jurisdic-

tion is a question of law, our review is plenary. . . .

[A] court lacks discretion to consider the merits of a

case over which it is without jurisdiction . . . .’’ (Inter-

nal quotation marks omitted.) Richardson v. Commis-

sioner of Correction, 298 Conn. 690, 696, 6 A.3d 52

(2010).

‘‘A writ of error coram nobis is an ancient common-

law remedy which authorized the trial judge, within

three years, to vacate the judgment of the same court

if the party aggrieved by the judgment could present

facts, not appearing in the record, which, if true, would

show that such judgment was void or voidable. . . . A

writ of error coram nobis lies only in the unusual situa-

tion where no adequate remedy is provided by law.

. . . Moreover, when habeas corpus affords a proper

and complete remedy the writ of error coram nobis will

not lie.’’ (Citations omitted; internal quotation marks

omitted.) State v. Henderson, 259 Conn. 1, 3, 787 A.2d

514 (2002). ‘‘The errors in fact on which a writ of error

[coram nobis] can be predicated are few. . . . This can

be only where the party had no legal capacity to appear,

or where he had no legal opportunity, or where the court

had no power to render judgment.’’ (Internal quotation

marks omitted.) Hubbard v. Hartford, 74 Conn. 452,

455, 51 A. 133 (1902).

We note at the outset that, pursuant to General Stat-

utes § 52-466 (a) (1),4 the remedy of a writ of habeas

corpus is only available while the petitioner is ‘‘in cus-

tody on the conviction under attack at the time the

habeas petition is filed . . . .’’ (Internal quotation

marks omitted.) Foote v. Commissioner of Correction,

170 Conn. App. 747, 752, 155 A.3d 823, cert. denied, 325

Conn. 902, 155 A.3d 1271 (2017). The record is clear

that the defendant was released from custody on March

17, 2014, and did not file a petition for a writ of habeas

corpus while he was incarcerated.

We are not persuaded by the defendant’s argument

that he could not have pursued a writ of habeas corpus

while in custody because he did not learn of the adverse

immigration consequences until after he was released.

Our recent decisions in State v. Stephenson, supra, 154

Conn. App. 587, and State v. Sienkiewicz, 177 Conn.

App. 863, 172 A.3d 802 (2017), control our analysis of

this issue. In Sienkiewicz, this court held that ‘‘[t]here

can be no doubt . . . that the defendant would have

had the ability to contest the effectiveness of counsel

and the validity of his plea in a habeas action even if

[adverse immigration consequences were] not immi-

nent. In [State v. Stephenson, supra, 589] . . . [t]he

record [did] not reflect that any adverse immigration

consequences [had] yet occurred by the time the defen-

dant was no longer in custody on the sentence in issue,

and [the court] held that the defendant could have

brought an action seeking a writ of habeas corpus. . . .

Stephenson clearly holds that the prior availability of

the writ of habeas corpus defeats the jurisdiction of

the trial court to entertain a petition for a writ of error

coram nobis.’’ (Citations omitted; internal quotation

marks omitted.) State v. Sienkiewicz, supra, 870–71;5

see also State v. Williamson, 155 Conn. App. 215, 221,

109 A.3d 924 (2015) (‘‘[n]either the defendant’s proba-

tionary status nor his federal detention impeded his

ability to petition for a writ of habeas corpus and,

thereby, to raise a claim related to the representation

afforded him by his trial counsel in connection with his

guilty plea’’). We conclude, therefore, that the defendant

had the ability to file a petition for a writ of habeas

corpus at any time that he was in custody.

In addition to a habeas corpus action, the defendant

also had the legal remedy of a petition for a new trial

available to him. General Statutes § 52-270 provides in

relevant part that the court ‘‘may grant a new trial of

any action that may come before it . . . for other rea-

sonable cause,’’ so long as it is brought within three

years after judgment is rendered. See General Statutes

§ 52-582 (‘‘[n]o petition for a new trial in any civil or

criminal proceeding shall be brought but within three

years after the rendition of the judgment’’). Our case

law is clear that ineffective assistance of counsel claims

may be brought in a petition for a new trial. State v.

Taft, 306 Conn. 749, 768, 51 A.3d 988 (2012); see also

State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480 (‘‘a

claim of ineffective assistance of counsel is more prop-

erly pursued on a petition for a new trial or on a petition

for a writ of habeas corpus rather than on direct appeal’’

[internal quotation marks omitted]), cert. denied, 476

U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986). In

this case, the court rendered a judgment of conviction

against the defendant on May 22, 2013. The defendant

filed his petition for a writ of error coram nobis on

February 3, 2015, less than three years after the date

of his conviction. The limitation period on a petition

for a new trial had not yet run, and, therefore, the

defendant could also have pursued this alternative

legal remedy.

In the present case, the defendant was subject to

adverse immigration consequences during the entire

period of his incarceration pursuant to the 2013 convic-

tion. Because he could have raised his ineffective assis-

tance of counsel claim in a habeas petition while he

was in custody or in a petition for a new trial for a

period of three years subsequent to the date of his

conviction, he had alternative legal remedies available

to him. Stephenson and Sienkiewicz clearly hold that

the prior availability of an alternative legal remedy

defeats the jurisdiction of the trial court to entertain a

petition for a writ of error coram nobis. State v. Stephen-

son, supra, 154 Conn. App. 592; State v. Sienkiewicz,

supra, 177 Conn. App. 871. Having determined that the

court lacked subject matter jurisdiction to consider the

petition for a writ of error coram nobis, we conclude

that the court should have dismissed rather than denied

the petition.6 See State v. Stephenson, supra, 592 (form

of judgment improper where trial court denied petition

for writ of error coram nobis over which it lacked juris-

diction); see also Turner v. State, 172 Conn. App. 352,

354, 160 A.3d 398 (2017) (trial court should have dis-

missed rather than denied petition for new trial over

which it lacked subject matter jurisdiction).

The form of the judgment is improper, the judgment

denying the petition for a writ of error coram nobis is

reversed and the case is remanded with direction to

render judgment dismissing the petition for a writ of

error coram nobis.

In this opinion the other judges concurred.

1

North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d

162 (1970).

2

In his petition for writ of coram nobis and his principal brief to this

court, the defendant also claimed that the trial court erred in denying his

claim that the court’s canvass during his plea hearing was defective under

General Statutes § 54-1j. The defendant subsequently withdrew this claim

following the recent decision by our Supreme Court in State v. Lima, 325

Conn. 623, 630–31, 159 A.3d 651 (2017), which held that § 54-1j (a) does not

require the trial court to ‘‘inquire directly of the defendant as to whether

he has spoken with counsel about the possible immigration consequences

of pleading guilty before the court accepts the defendant’s guilty plea.’’

3

The defendant claims in his brief that the trial court ‘‘erred when it

dismissed [his] writ of error coram nobis.’’ Similarly, the state claims that

the trial court ‘‘properly dismissed [the writ].’’ Our review of the record,

however, reveals that the court denied rather than dismissed the defen-

dant’s petition.

4

General Statutes § 52-466 (a) (1) provides in relevant part: ‘‘An application

for a writ of habeas corpus . . . shall be made to the superior court . . .

for the judicial district in which the person whose custody is in question is

claimed to be illegally confined or deprived of such person’s liberty.’’

5

Perhaps recognizing the binding precedent of State v. Stephenson, supra,

154 Conn. App. 587, and State v. Sienkiewicz, supra, 177 Conn. App. 863,

the defendant has also urged us to overrule them. Consistent with this claim,

on August 3, 2017, the defendant filed a motion requesting that this court

hear the appeal en banc. That motion was denied by this court on September

14, 2017.

6

In light of this conclusion, we do not reach the state’s alternative argu-

ment in which it calls into question the viability of the writ of error coram

nobis. See State v. Sienkiewicz, supra, 177 Conn. App. 869 (‘‘[w]e decline

the state’s invitation to announce the demise of the writ of error coram

nobis’’); see also State v. Stephenson, supra, 154 Conn. App. 590 n.4 (‘‘The

state argues that, because of more recently created remedies, such as the

petition for a new trial, the writ of coram nobis should be jettisoned . . . .

We need not decide this issue, however, because even if the remedy does

exist, the prerequisites for granting relief were not met here’’).