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State v. Sienkiewicz

Court of Appeals of Connecticut

November 7, 2017

STATE OF CONNECTICUT
v.
PAWEL SIENKIEWICZ

          Argued April 18, 2017

          Michael W. Brown, assigned counsel, for the appellant (defendant).

          Melissa L. Streeto, senior assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Jennifer Miller, assistant state's attorney, for the appellee (state).

          Keller, Prescott and Beach, Js.

         Syllabus

         The defendant, who had been convicted, on a plea of guilty, of the crime of assault in the third degree, appealed to this court from the judgment of the trial court dismissing his petition for a writ of error coram nobis. In his petition, the defendant sought to withdraw his guilty plea and to vacate or void his conviction, alleging that, at the time he had entered the plea, he did not understand the immigration consequences that would result from the plea and sentence, and that his attorney's failure to advise him of those consequences constituted ineffective assistance of counsel. Prior to the assault, federal authorities had initiated removal proceedings against the defendant because he had overstayed the term of a tourist visa. Subsequent to his plea and sentence, while the defendant was on a wait list for a certain type of visa that would have provided him relief from removal, federal authorities notified him that he was ineligible for admission to the United States because of the assault. The state filed a motion to dismiss the petition on the ground that the trial court lacked jurisdiction to issue a writ of error coram nobis because the defendant had failed to pursue a writ of habeas corpus while he was in custody. Held that the trial court properly dismissed the petition for a writ of error coram nobis, that court having properly determined that it lacked jurisdiction over the petition because the defendant had an adequate remedy at law in the form of habeas corpus relief while he was in custody on the assault charge; the defendant had the ability to file a petition for a writ of habeas corpus when he was in custody in order to challenge the effectiveness of his counsel and the validity of his plea, and, although the defendant claimed that an action brought prior to his petition here for a writ of error coram nobis would not have been ripe because he did not know that he would be removed from the visa wait list during the time he was in custody, the issue was whether the remedy of habeas relief was available to him when he was in custody, which it was, as he was subject to adverse immigration consequences during the entire period of his custody pursuant to his sentence.

         Procedural History

         Substitute information charging the defendant with the crime of assault in the third degree, brought to the Superior Court in the judicial district of New Britain, geographical area number fifteen, where the defendant was presented to the court, Baldini, J., on a plea of guilty; judgment of guilty; thereafter, the court, Keegan, J., granted the state's motion to dismiss the defendant's petition for a writ of error coram nobis, and the defendant appealed to this court. Affirmed.

          OPINION

          BEACH, J.

         The defendant, Pawel Sienkiewicz, appeals from the judgment of the trial court granting the state's motion to dismiss his petition for a writ of error coram nobis. The defendant claims that the court erred in holding that it did not have jurisdiction to consider the merits of his petition and, therefore, erred in dismissing his petition for a writ of error coram nobis. We affirm the judgment of the trial court.[1]

         The following facts and procedural history are relevant to our disposition of this appeal. The defendant is a native and citizen of Poland who legally entered the United States on a tourist visa but unlawfully overstayed that visa's authorized term. By 2009, federal authorities initiated removal proceedings against the defendant, ultimately leading to a final order of removal.[2]

         On September 5, 2010, while removal proceedings against the defendant were pending, the defendant assaulted a woman and was charged in a substitute information with assault in the third degree in violation of General Statutes § 53a-61. On April 3, 2011, the defendant was arrested on a charge of operating a motor vehicle while under the influence of alcohol or drugs. He was charged as a third offender in violation of General Statutes§ 14-227a, which is a felony pursuant to General Statutes § 53a-25. Following a jury trial, the defendant was found guilty of operating a motor vehicle while under the influence, and the defendant pleaded guilty to the part B information charging him with being a persistent offender. On July 12, 2013, the court held a sentencing hearing on the conviction of operating under the influence as a third offender. The court sentenced the defendant to three years incarceration, execution suspended after twenty-two months, to be followed by three years probation, on the conviction of operating under the influence. Also at the July 12, 2013 hearing, the defendant pleaded guilty to assault in the third degree in violation of § 53a-61, in the case arising from the September, 2010 assault. Prior to accepting his plea, the court asked whether he understood that this conviction may have ‘‘consequences of deportation, exclusion from readmission or denial of naturalization, pursuant to federal law, '' to which he responded, ‘‘[y]es.'' The defendant's attorney added that ‘‘with regard to the immigration consequences, I've gone over that very thoroughly with the defendant and also spoken to his immigration counsel, so I'm confident that he's been advised with regard to those consequences.'' The court then sentenced the defendant to one year of imprisonment on the assault charge, to be served concurrently with the three year sentence he had received earlier that day.

         Meanwhile, while the criminal charges were pending, the defendant on August 2, 2011, filed a petition for a U nonimmigrant status (U visa)[3] and the accompanying application for advance permission to enter as a nonimmigrant (application for advance entry), which, if granted, would have provided him relief from removal. On February 27, 2014, the defendant was notified that his petition for a U visa and application for advance entry had been placed on a wait list. On March 26, 2015, the United States Citizenship and Immigration Services (immigration services) division of the Department of Homeland Security sent the defendant a letter notifying him that he had been removed from the U visa wait list because he had been placed on the wait list in error, and that he was potentially ineligible for the U visa. Accordingly, immigration services intended to deny his application for advance entry. The letter explained that the defendant is ‘‘inadmissible to the United States under section [1182] (a) (2) (A) (i) (I) (crime involving moral turpitude) of the Immigration and Nationality Act (the Act)''; 8 U.S.C. § 1101 et seq. (2012); but that immigration services has discretion to waive this ground of inadmissibility under subdivisions (d) (3) or (14) of § 1182 of the act. Section 1182 (a) (2) (A) (i) of title 8 of the United States Code provides in relevant part that ‘‘any alien convicted of . . . (I) a crime involving moral turpitude . . . is inadmissible.'' Section 1182 (a) of title 8 of the United States Code provides in relevant part that ‘‘aliens who are inadmissible under [subsection (a)] are ineligible to receive visas and ineligible to be admitted to the United States . . . .'' Regarding a ‘‘crime of moral turpitude, '' the letter noted that ‘‘[a]fter a thorough review of the file [immigration services had] determined that [the defendant had] not addressed the fact that by [his] actions [he had] created a victim, '' then proceeded to describe the September, 2010 assault. The letter concluded by providing the defendant a period of thirty-three days to ‘‘submit evidence to demonstrate that [immigration services] should exercise its discretion to approve [his] application for a waiver under [8 U.S.C. § 1182 (d) (3)] or that approving [the defendant's] request for the waiver is in the national or public interest, pursuant to [§ 1182 (d) (14)].'' The record does not reflect whether the defendant ever submitted such evidence.

         On June 19, 2015, the defendant filed a petition for a writ of error coram nobis, requesting that the court allow him to withdraw his guilty plea as to the charge of assault and to vacate or void the assault conviction. He argued that he had not understood that serious immigration consequences, namely, his removal from the U visa wait list, would result from his plea and sentence, and that his attorney's failure to advise him of these consequences constituted ineffective assistance of counsel. The state moved to dismiss his petition, arguing that the court may issue a writ of error coram nobis only if no adequate remedy is provided by law and that the defendant did not satisfy this requirement ‘‘because he failed to timely pursue a writ of habeas corpus.'' After a hearing, the court issued its March 11, 2016 memorandum of decision, granting the state's motion to dismiss. The court agreed that the defendant could have petitioned for a writ of habeas ...


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