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Pentland v. Commissioner of Correction

Court of Appeals of Connecticut

September 26, 2017

ROBERT V. PENTLAND III
v.
COMMISSIONER OF CORRECTION

          Argued May 25, 2017

         Petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, where the court, Oliver, J., rendered judgment dismissing the petition; thereafter, the court, Oliver, J., denied the petition for certification to appeal, and the petitioner appealed to this court; subsequently, the court, Oliver, J., granted the petitioner's motion for permission to file a late amended petition for certification to appeal and for reconsideration of the denial of the petition for certification to appeal; thereafter, the court, Oliver, J., granted the amended petition for certification to appeal. Affirmed.

          Jennifer Bourn, assistant public defender, for the appellant (petitioner).

          James A. Killen, senior assistant state's attorney, with whom, on the brief, were Patrick Griffin, state's attorney, and Adrienne Maciulewski, deputy assistant state's attorney, for the appellee (respondent).

          Keller, Prescott and Bear, Js.

         Syllabus

         The petitioner, who had been convicted of two counts of the crime of witness tampering, sought a writ of habeas corpus, claiming that he had been denied the effective assistance of trial counsel. In connection with his conviction of witness tampering, the petitioner had been sentenced to one year incarceration, which he served from December, 2010 to December, 2011, and during that time, he was held in lieu of bond for certain other charges that stemmed from a sexual assault. After he completed his one year sentence on the witness tampering conviction, he continued to be held in lieu of bond on the sexual assault charges, of which he was convicted in 2012 and sentenced to a term of incarceration that he was serving when he filed his habeas petition in May, 2015. The habeas court rendered judgment dismissing that petition, sua sponte, for lack of subject matter jurisdiction, concluding that it lacked jurisdiction to hear the petition because the petitioner had not been in custody for the witness tampering conviction when the petition was filed. Following the granting of certification, the petitioner appealed to this court. He claimed that because he has remained incarcerated on one or the other sentence since June, 2010, the sentences should be treated as consecutive sentences or a continuous stream of sentences, and that he should be considered to be in custody for jurisdictional purposes on both sentences for the duration of the aggregate term. Held that the habeas court properly dismissed the habeas petition, the petitioner having failed to allege sufficient facts to establish the habeas court's subject matter jurisdiction over his habeas petition: even if this court were persuaded by the petitioner's argument that he was in custody, the record was devoid of specific facts alleged by the petitioner that could have established the habeas court's jurisdiction, as the facts alleged by the petitioner concerning his sentences, dates of confinement and pretrial confinement credit were alleged in his brief to this court and were not alleged or proven before the habeas court, and the facts alleged in the habeas petition were insufficient to prove his claim; moreover, the habeas court did not have an obligation to grant a hearing prior to dismissing the habeas petition, as that was not required by the rule of practice (§ 23-29) that permits the habeas court to dismiss a petition sua sponte if it determines that it lacks jurisdiction, and the petitioner did not file any motion or other pleading in the habeas court alleging that he was entitled to a hearing.

         Procedural History

          OPINION

          PRESCOTT, J.

         The petitioner, Robert V. Pentland III, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus.[1] On appeal, the petitioner claims that the court improperly dismissed his petition for lack of subject matter jurisdiction on the basis of an erroneous conclusion that he was not in the custody of the respondent, the Commissioner of Correction, onthe challenged conviction when he filed his petition, as required by General Statutes § 52-466. We conclude that the petitioner did not allege sufficient facts in his petition to establish the habeas court's subject matter jurisdiction to hear his petition. Accordingly, the judgment of the habeas court is affirmed.

         We begin by setting forth the relevant procedural history. On May 22, 2015, the petitioner, representing himself, filed a petition for a writ of habeas corpus challenging his 2011 conviction for two counts of witness tampering. The petitioner alleged in his petition that his conviction was illegal because, inter alia, he was denied the effective assistance of counsel. On March 29, 2016, the habeas court, Oliver, J., sua sponte, dismissed the petition pursuant to Practice Book § 23-29 (1), [2] concluding that it did not have jurisdiction to hear the petition because the petitioner had not been in custody for the witness tampering conviction at the time he filed his petition. The court did not set forth the factual basis for this conclusion and did not hold a hearing prior to its sua sponte dismissal of the petition.

         The self-represented petitioner filed a petition for certification to appeal on April 7, 2016. The court, Oliver J., denied the petition for certification on April 12, 2016. The petitioner thereafter filed the present appeal on May 2, 2016, and was appointed appellate counsel. On September 14, 2016, the petitioner's appellate counsel filed a motion for permission to file a late amended petition for certification to appeal and for reconsideration of the denial of the petition for certification to appeal, arguing that counsel had identified grounds for challenging the habeas court's determination that it did not have jurisdiction to hear the petition for a writ of habeas corpus. The court, Oliver, J., granted the motion, allowed the petitioner's counsel to file a new petition for certification, and granted the amended petition for certification to appeal on September 14, 2016.

         We now turn to the state of the factual record before us. Except in other circumstances which are inapplicable here, ‘‘[i]n 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.'' (Internal quotation marks omitted.) Lebron v. Commissioner of Correction, 274 Conn. 507, 512, 876 A.2d 1178 (2005).

         In deciding whether to sua sponte dismiss the petitioner's habeas petition, the court was required, under the circumstances of this case, to take the facts to be those alleged in the petition. See id. The facts alleged by the petitioner in his May 22, 2015 habeas petition, however, were quite sparse in regard to the issue of the court's jurisdiction. Specifically, the petitioner alleged that he was serving a sentence for two counts of witness tampering, that he was arrested in December, 2010, and was sentenced in ‘‘summer, 2011, '' to a total effective sentence of one year of incarceration. Because the court did not hold, and the petitioner ...


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