November 14, 2016
from Superior Court, judicial district of Tolland,
geographical area number nineteen, Oliver, J.
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
Lavine, Alvord and Schaller, Js.
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.
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 doctrineto 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
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.
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.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.
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).
to § 52-466 (a) (1),  ‘‘[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).
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.
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