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Foote v. Commissioner of Correction

Court of Appeals of Connecticut

February 14, 2017

STANLEY FOOTE
v.
COMMISSIONER OF CORRECTION

          Argued November 14, 2016

         Appeal from Superior Court, judicial district of Tolland, geographical area number nineteen, Oliver, J.

          Jodi Zils Gagne´, for the appellant (petitioner).

          Matthew A. Weiner, assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, Angela R. Macchiarulo, senior assistant state's attorney, and Michael Proto, assistant state's attorney, for the appellee (respondent).

          Lavine, Alvord and Schaller, Js.

          OPINION

          SCHALLER, J.

         The petitioner, Stanley Foote, following a grant of certification to appeal by the habeas court, appeals from the judgment of the habeas court dismissing his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly dismissed his habeas petition for lack of subject matter jurisdiction because the petitioner was not in the custody of the respondent, the Commissioner of Correction, on the challenged conviction when he filed his petition, as required by General Statutes § 52-466. We disagree and affirm the judgment of the habeas court.

         Our review of the record reveals the following facts and procedural history. On November 13, 2002, the petitioner was convicted of possession of cocaine with intent to sell by a person who is not drug-dependent and received a sentence of eight years incarceration and five years special parole (Ansonia conviction). See State v. Foote, 85 Conn.App. 356, 360, 857 A.2d 406 (2004) (affirming petitioner's conviction), cert. denied, 273 Conn. 937, 875 A.2d 43, 44 (2005). Thereafter, the special parole portion of his sentence was reduced to three and one-half years. On July 21, 2010, while he was on parole on the Ansonia conviction, the petitioner was arrested for participating in a narcotics sale. On September 14, 2010, in connection with this incident, the petitioner pleaded guilty under the Alford doctrine[1]to conspiracy to sell narcotics. He received a sentence of two years incarceration (Waterbury conviction), to run concurrently with his existing sentence on the Ansonia conviction. After the petitioner was sentenced, he was informed by the Department of Correction that the unexpired portion of his special parole on the Ansonia conviction would not begin to run until after the petitioner completed his sentence on the Waterbury conviction.

         On January 3, 2013, after completing the sentence on the Waterbury conviction, but before completing the sentence on the Ansonia conviction, the petitioner filed a petition for a writ of habeas corpus challenging the Waterbury conviction. An amended petition was filed on May 19, 2014. On May 23, 2014, the respondent filed a motion to dismiss the petition on the ground that the petitioner was not in custody on the Waterbury conviction at the time that he filed the petition. On July 2, 2014, the petitioner filed an objection, arguing that, although the Waterbury conviction had expired at the time of the petition, the court had jurisdiction pursuant to the custody exception as expressed in Garlotte v. Fordice, 515 U.S. 39, 115 S.Ct. 1948, 132 L.Ed.2d 36 (1995). Under Garlotte, subject matter jurisdiction exists for an expired sentence when the petitioner is serving consecutive sentences and the expired sentence has an appreciable effect on the current sentence. Id., 47; Oliphant v. Commissioner of Correction, 274 Conn. 563, 574 n.9, 877 A.2d 761 (2005) (explaining circumstance in which Garlotte exception applies). The habeas court issued a memorandum of decision on September 17, 2014, granting the respondent's motion to dismiss. The habeas court held that it did not have subject matter jurisdiction over the petitioner's habeas petition because he was not in custody on the Waterbury conviction when he filed his petition, and the Garlotte custody exception did not apply. The habeas court subsequently granted the petitioner's petition for certification to appeal, and this appeal followed.

         On appeal, the petitioner claims that the court improperly dismissed his petition for a writ of habeas corpus on the ground that he was not in the custody of the respondent on the challenged Waterbury conviction when he filed his petition, as required by § 52-466.[2]Specifically, he claims that, although the trial court gave the petitioner a concurrent sentence on the Waterbury conviction, it became a consecutive sentence in practice because the unexpired portion of his special parole on the Ansonia conviction did not begin to run until after he finished his sentence on the Waterbury conviction. Moreover, the petitioner claims that he is actually challenging how the sentence on the Waterbury conviction affected the sentence on the Ansonia conviction, and that he should have been allowed to amend the petition to include a challenge to the Ansonia conviction. We disagree.

         To resolve the petitioner's claim, we begin by setting forth our standard of review and the relevant legal principles. ‘‘We have long held that because [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary. . . . Moreover, [i]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time. . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . . The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal.'' (Internal quotation marks omitted.) Fernandez v. Commissioner of Correction, 139 Conn.App. 173, 177-78, 55 A.3d 588 (2012).

         Pursuant to § 52-466 (a) (1), [3] ‘‘[a] habeas court has subject matter jurisdiction to hear a petition for habeas corpus when the petitioner is in custody at the time that the habeas petition is filed.'' Young v. Commissioner of Correction, 104 Conn.App. 188, 191, 932 A.2d 467 (2007), cert. denied, 285 Conn. 907, 942 A.2d 416 (2008). ‘‘[I]n order to satisfy the custody requirement of § 52-466, the petitioner [must] be in custody on the conviction under attack at the time the habeas petition is filed . . . . [C]ollateral consequences flowing from an expired conviction do not render a petitioner in custody under §52-466; rather, such a claim of confinement or custody and any accompanying loss of liberty [stem] solely from [a petitioner's] current conviction.'' (Citations omitted; emphasis omitted; internal quotation marks omitted.) Richardson v. Commissioner of Correction, 298 Conn. 690, 698, 6 A.3d 52 (2010).

         An exception exists, however, to the custody requirement. ‘‘A habeas petitioner who is serving consecutive sentences may challenge a future sentence even though he is not serving that sentence at the time his petition is filed; see Peyton v. Rowe, [391 U.S. 54, 67, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968)]; and he may challenge a consecutive sentence served prior to his current conviction if success could advance his release date. Garlotte v. Fordice, supra, 515 U.S. 47. In other words, the . . . courts view prior and future consecutive sentences as a continuous stream of custody for purposes of the habeas court's subject matter jurisdiction.'' (Emphasis in original; internal quotation marks omitted.) Oliphant v. Commissioner of Correction, supra, 274 Conn. 573. Our courts have not extended this exception to concurrent sentences, which ‘‘do not create a continuous stream of custody because they do not, by their nature, extend the term of incarceration.'' Fernandez v. Commissioner of Correction, supra, 139 Conn.App. 188.

         With regard to a motion to dismiss, ‘‘[t]he standard of review . . . is . . . well established. In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . The conclusions reached by the [habeas] court in its decision to dismiss the habeas petition are matters of law, subject to plenary review. . . . Thus, [w]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct ...


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