Opinion
No. CV 01-447386S
June 23, 2010
MEMORANDUM OF DECISION
STATEMENT OF THE CASE
The petitioner's appeal in this case was dismissed by the Appellate Court for lack of a final judgment. The decision appealed from granted summary judgment in favor of the respondent on one count dealing with the claim of ineffective assistance of counsel. Ivers v. Commissioner, 111 Conn.App. 654 (2005).
When the matter was reached on June 10, 2010 to address the remaining two counts, the respondent moved for summary judgment as will be discussed below. However, the court assumes that its decision in the prior proceeding pertains and that count has been disposed of in that decision.
The remaining two counts allege that the petitioner was illegally sentenced and that the court lacked the jurisdiction to impose the sentence. The parties argued and were to file briefs addressing the issue.
DISCUSSION I
The petitioner first claimed that the statute of limitations cannot be waived by an accused, that being what he did in his change of plea. However, our Supreme Court appears to have resolved that question in State v. Littlejohn, 199 Conn. 631 (1986), and concluded that:
A leap of logic is not required to maintain that if an accused can waive constitutional rights, he certainly can waive one conferred by the statute of limitations; United States v. Wild, supra, 424 (knowing and intelligent waiver of statute of limitations is valid); nor is it in derogation of the policy behind the statute to permit him to do so. See Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970). Id., at 649-50.
The petitioner's attempt to carve out an exception where the subsequent plea is to a charge which is not a lesser included offense to the original charge has no foundation in this case or its progeny.
II
The respondent argues for dismissal of petitioner's complaint as to his "illegal sentence." Case law would support this view. In Cheparro v. Commissioner of Correction, 120 Conn.App. 41 (2010), our Appellate Court addressed this issue and said:
This court has stated that in order to challenge an illegal sentence, a defendant either must appeal the sentence directly or file a motion to correct the sentence pursuant to Practice Book § 43-22 with the trial court before raising a challenge for the first time in a petition for a writ of habeas corpus. Id., p. 46-47.
The court goes on to cite Cobham v. Commissioner of Correction, 258 Conn. 30, 39 (2001):
In Cobham, our Supreme Court reasoned that such claims should be raised in the sentencing court because that court has the greatest access to various sentencing remedies and can reach the matter more expeditiously than though the habeas petition. Id., at 47.
The petitioner complains that he could not avail himself of these remedies but does not explain why he could not. And, while he laments the result in his earlier appeal at 111 Conn.App. 654 (2008), that decision did address the ineffective assistance of counsel claim.
CT Page 14312
III
On the basis of the discussion above, it is clear that the sentencing court had jurisdiction to accept the petitioner's plea and impose the sentence that followed.IV
It should be noted that the petitioner's claim that a granting of the respondent's motions will deprive him of his right to a trial on the merits is ludicrous.
The petitioner's earlier habeas corpus petition claimed coercion and ineffective assistance of counsel. This petition was denied and on appeal was dismissed per curiam, 68 Conn.App. 911 (2002). As noted by the court in its Response to Motion For Articulation in Ivers v. Commissioner, 111 Conn.App. 654 (2008), its decision to grant summary judgment in one count in this case was based on that decision and accompanying exhibits. This included the complete transcript of the change of plea, indicating the petitioner's participation.
CONCLUSION
The respondent's motions to dismiss and for summary judgment are granted.