Opinion
Nos. CR-03-00-79132S, CR-03-0079139S, CR-03-00-79687S
November 5, 2010
MEMORANDUM OF DECISION
On or about May 4, 2003. Nupur D. Patel was charged with multiple counts of burglary and larceny for incidents that occurred on the University of Connecticut campus. On December 2, 2003, after reaching a negotiated plea and sentence agreement, Patel pleaded guilty to several reduced criminal offenses. He was canvassed and found guilty by the court and, pursuant to the terms of the plea agreement, sentenced to four and one-half years in the custody of the Commissioner of Correction, execution suspended, and three years of probation. Patel successfully completed the period of probation in December 2006 and thereby fully executed the sentence imposed by this court.
In March of 2010, Patel vacationed outside the United States and upon re-entering the United States he was detained by federal agents who determined that he was not a United States citizen and had a criminal record. Thereafter the federal government began deportation proceedings premised on the above State of Connecticut convictions. Currently, an order of deportation has been issued and is under appeal.
On March 31, 2010, the United States Supreme Court released its decision regarding the matter of Padilla v. Kentucky, U.S. 1, 17, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), which held for the first time "that counsel must inform his client whether his plea carries a risk of deportation." Padilla was a legal permanent resident of the United States for over 40 years. He plead guilty and was sentenced for drug distribution in the State of Kentucky. In post conviction proceedings Padilla claimed that his attorney not only failed to advise him of deportation consequences before he pleaded guilty but also told him that he should not worry about deportation because he had lived in the United States for such a long time. Padilla claimed that if he knew that he would be deported he would have gone to trial.
The Supreme Court determined that Padilla had sufficiently alleged that his counsel was constitutionally deficient. However, the Court stated that "Whether he is entitled to relief depends on whether he has been prejudiced, a matter not addressed here." The case was remanded to the State of Kentucky for the purpose of determining, pursuant to Strickland v. Washington, (citation omitted) whether the defendant was prejudiced by the ineffective assistance of defendant's attorney.
In the instant case, the petitioner's claim is that his attorney was ineffective when he advised Patel that he would not be subject to deportation if he pleaded guilty to reduced misdemeanor charges. However, Patel is not seeking a new trial. Instead, he filed an "Amended Motion to Modify the Sentence — Nunc Pro Tunc — Writ of Audita Querela" in which he seeks a modification of his original sentence and judgment in order to rectify his former counsel's incorrect affirmative advice that the defendant would not face deportation as a result of the instant convictions. Specifically, the defendant wants the trial court to vacate the original judgment and sentence and impose a new sentence of less than one year for the purpose of persuading the federal authorities not to deport him from the United States. The petitioner further moves the court to ". . . accept jurisdiction (or reinstate jurisdiction) in the instant matters in order to correct a defect of constitutional proportion which rose out of the convictions . . ." Amended Motion, p. 4. The State of Connecticut has filed a motion asking the court to dismiss the motion and writ on the ground that the court lacks jurisdiction.
When a court's subject matter jurisdiction is put at issue, the court must first ascertain and decide that issue. "[U]nlike jurisdiction over the person, subject matter jurisdiction cannot be created through consent or waiver . . . Once the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . The court must fully resolve it before proceeding further with the case . . . Whenever a court finds that it has no jurisdiction, it must dismiss the case, without regard to previous rulings. (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 258 Conn. 804, 813. 786 A.2d 1091 (2002). `Indeed, [i]t is axiomatic that once the issue of subject matter jurisdiction is raised, it must be immediately acted upon by the court.' (Internal quotation marks omitted.) Ajadi v. Commissioner of Correction, 280 Conn. 514, 533, 911 A.2d 712 (2006)." CT Page 21634 Mourning v. Commissioner of Correction, 120 Conn.App. 612, 617 n. 4, 992 A.2d 1169, 297 Conn. 919, 996 A.2d 1192 (2010).
Motion to Modify Sentence Nunc Pro Tunc
"[O]nce judgment has been rendered and the defendant has begun serving the sentence imposed, the trial court lacks jurisdiction to modify its judgment in the absence of a legislative or constitutional grant of continuing jurisdiction. The Superior Court is a constitutional, . . . court of general jurisdiction . . . In the absence of statutory or constitutional provisions, the limits of its jurisdiction are delineated by common law . . . It is well established that under the common law a trial court has the discretionary power to modify or vacate a criminal judgment before the sentence has been executed . . . This is so because the court loses jurisdiction over the case when the defendant is committed to the custody of the commissioner of correction and begins serving the sentence . . ." (Footnotes omitted: internal citations omitted.) State v. Luzietti, 230 Conn.427, 431, 646, A.2d 85 (1994). See also State v. Reid, 277 Conn. 764, 774, 894 A.2d 963 (2006); State v. DeVivo, 106 Conn.App. 641, 645, 942 A.2d 1066 (2008). "A party . . . cannot confer subject matter jurisdiction on the court, either by waiver or by consent." Fleet National Bank v. Nazareth, 75 Conn.App. 791, 793, 818, A.2d 886 (2004).
In the instant case, the petitioner filed a motion to modify his sentence, nunc pro tunc, several years after his sentences had been fully completed and the defendant had been discharged from probation. Essentially, he is asking the trial court to entertain the motion to modify his sentence as if it had been filed while the defendant was still serving his sentence. There is no precedent in Connecticut for a nunc pro tunc motion to modify a fully expired criminal sentence.
The defendant's brief is devoid of any constitutional or statutory authority giving this court jurisdiction over his motion. As the defendant's brief confirms by citing to a fifty-year old decision from Kentucky, there is no precedent in Connecticut for a nunc pro tunc motion to modify a fully expired criminal sentence. A review of Harris v. Commonwealth, 342 S.W.2d 535 (Ky. 1960), shows that it does not support the petitioner's contention. Harris involved a trial court correcting a judgment nunc pro tunc and a claim raised as to the validity of that judgment because it was entered nunc pro tunc. The trial court's nunc pro tunc action was affirmed on appeal.
It is clear that the defendant's quotations from the Harris v. Commonwealth case, presented in support of his claim that this court has jurisdiction, are entirely out of context. Harris in no way supports the assertion that this court has jurisdiction merely because a motion to modify sentence nunc pro tunc, filed after a sentence has been fully executed, relies on a court's equitable powers as the jurisdictional foundation.
The defendant has presented no authority, and the court's own research has not discovered any authority, that it has jurisdiction over the motion to modify sentence nunc pro tunc. The motion to modify sentence nunc pro tunc, therefore, is dismissed for lack of jurisdiction.
Writ of Audita Querela
"`A writ of audita querela is a writ issued to afford a remedy to a defendant against whom judgment had been rendered, but who had new matter in defense . . . arising, or at least raisable for the first time, after judgment.' (Internal quotation marks omitted.) Ruiz v. Gatling, 73 Conn.App. 574, 574 n. 2, 808 A.2d 710 (2002)." State v. Cotto, 111 Conn.App. 818, 819 n. 3, 960 A.2d 1113 (2008). This court's research of both appellate and trial court decisions in Connecticut shows that the writ of audita querela has been used almost exclusively in this state to challenge civil judgments. The one exception is State v. Cotto, supra, in which the Appellate Court addressed an appeal from a trial court's dismissal of writs of error coram nobis and audita querela for lack of jurisdiction.
"The writ of audita querela is a common law writ dating from the reign of Edward III that constitutes the initial process in an action brought by a judgment defendant to obtain relief against the consequences of the judgment on the round that some defense or discharge has arisen since its rendition that could not be taken advantage of otherwise. United States v. Reyes, CT Page 21638 945 F.2d 862, 863 n. 1 (5th Cir. 1991); Blacks Law Dictionary 150 (9th ed., 2009). Audita querela is distinguished front coram nobis in that coram nobis attacks the judgment itself, whereas audita querela is directed against the enforcement, or further enforcement, of a judgment which, when rendered, was just and unimpeachable. 7A C.J.S. Audita Querela § 4 (2004). In other words, a writ of coram nobis attacks a judgment that was infirm at the time it was rendered for reasons that later came to light, while a writ of audita querela is used to challenge a judgment that was correct at the time it was rendered but which is made infirm by matters that arose after its rendition. Id." United States v. Miller, 599 F.3d 484, 487 (5th Cir. 2010).
"The following facts [were] relevant to [Cotto's] appeal. On December 19, 1996, the defendant pleaded guilty to robbery in the second degree in violation of General Statutes § 53a-135(a)(1) and subsequently was sentenced to a term of ten years imprisonment, execution suspended after two years, and three years probation. The defendant completed his term of incarceration and was released from custody on January 31, 1999. On June 28, 2006, the defendant filed his petition for a writ of error coram nobis or audita querela. In the petition, the defendant claimed that the attorney who represented him on the robbery case rendered ineffective assistance of counsel. He claimed ineffective assistance because the attorney did not advise him of the possibility of disposing of the criminal charges as a youthful offender or under the accelerated rehabilitation program and did not file the proper documents for the defendant to file an appeal . . . He claimed that he became aware of these issues while he was in federal custody. He further alleges that because of his robbery conviction, he was unable to gain access to drug programs that would have reduced the length of his federal sentence.
"The court held that neither of the common-law remedies were applicable to the present case. The writ of error coram nobis was held inapplicable because it must be filed within three years of judgment, while the writ of audita querela was found to be for use in civil matters when enforcement of a judgment would be contrary to the ends of justice due to matters that have arisen since its rendition. The defendant filed a motion for reconsideration of his petition, which was granted, and the court affirmed its position by clarifying that the petition was filed nine years and five months after the plea and that the court had dismissed the petition for lack of jurisdiction." (Footnote omitted.) State v. Cotto, supra, 111 Conn.App. 819-20.
The Appellate Court in Cotto was unable to address the claims on appeal because the defendant/appellant failed to present the court with any information that would permit appellate review. Id., p. 821. Thus, there is no case law in Connecticut from an appellate tribunal that is binding. Nevertheless, this court finds the trial court's reasoning in Cotto, as summarized in the Appellate Court decision, to be persuasive.
The memorandum submitted by the state focuses on a relevant and thoughtful analysis by the court in State v. Guerra, Superior Court, judicial district of Danbury, Docket No. CR02-0115814 (August 24, 2010, Agati, J.) ( 2010 Ct.Sup. 16750). In Guerra, the defendant post-sentencing filed a motion to vacate his guilty plea premised on ineffective assistance of counsel. The court discussed both Padilla and Strickland v. Washington, as well as relevant state statutory and Practice Book provisions, and concluded that it lacked jurisdiction to vacate the defendant's pleas. This court finds the reasoning in Guerra to be persuasive.
The defendant's supplemental brief cites to two federal decisions in which he indicates federal courts have issued writs of audita querela to revisit final judgments of conviction. United States v. Salgado, 692 F.Sup. 1265, 1269 (E.D. Wash. 1988) (audita querela used to vacate the defendants twenty-four-year-old tax-evasion conviction, which barred defendant from invoking amnesty rights as a defense to pending deportation proceedings); United States v. Ghebreziabher, 701 F.Sup. 115, 116-17 (E.D.La. 1988) (audita querela used to vacate one of three food-stamp fraud convictions so that defendant would be eligible for amnesty). Cases such as Salgado and Ghebreziabher are anomalies and do not typify the federal courts' treatment of the writ of audita querela in criminal matters. The court concludes that Salgado and Ghebreziabher do not support the contention that this court has jurisdiction over the defendant's writ of audita querela.
To the contrary, federal courts have uniformly treated the attempted use of the writ of audita querela in criminal matters with disfavor. See, e.g., Trenkler v. United States, 536 F.3d 85 (1st Cir. 2008); United States v. Richter, 510 F.3d 103 (2nd Cir. 2007); Triestman v. United States, 124 F.3d 361 (2nd Cir. 1997); Massey v. United States, 581 F.3d 172 (3rd Cir. 2009); United States v. Miller, 599 F.3d 484 (5th Cir. 2010); United States v. Banda, 1 F.3d 354 (5th Cir. 1993); Collins v. Holinka, 510 F.3d 666 (7th Cir. 2007); United States v, Kimberlin, 675 F.2d 866 (7th Cir. 1982); United States v. Valdez-Pacheco, 237 F.3d 1077 (9th Cir. 2001); United States v. Gamboa, F.3d (9th Cir. 2010); United States v. Beasley, 357 Fed. Appx. 860 (9th Cir. 2009); Carrington v. United States, 503 F.3d 888 (9th Cir. 2007); United States v. Torres, 282 F.3d 1241 (10th Cir. 2002); United States v. Holt, 417 F.3d 1172 (11th Cir. 2005); United States v. Ayala, 894 F.2d (D.C. Cir. 1990).
The defendant's second supplemental brief in support of the writ of audita querela cites to another recent United States Supreme Court decision, United States v. Denedo, 129 S.Ct. 2213 (2009), as support for his argument that this court has jurisdiction. That case ". . . present[ed] a single issue: whether an Article I military appellate court has jurisdiction to entertain a petition for a writ of error coram nobis to challenge its earlier, and final, decision affirming a criminal conviction." The United States Supreme Court concluded that the Uniform Code of Military Justice provided jurisdiction because the writ of error coram nobis was "simply a further step in [his] criminal appeal." Thus, in Denedo, the military appellate court's jurisdiction derived from statute. Contrary to Denedo, there is no Connecticut statute giving this court jurisdiction over a writ of audita querela filed after the defendant's sentence was fully executed.
None of the cases in which the writ of audita querela was addressed in criminal cases supports the contention that a criminal court retains jurisdiction, after a defendant's sentences are fully expired, over such an equitable remedy merely because of an inequity. Stated somewhat differently, the fact that an inequity occurred does not, in and of itself, serve as the genesis of a court's subject matter jurisdiction. Accordingly, the writ of audita querela is dismissed for lack of jurisdiction.
It is so ordered.