JAMES A. MITCHELL
v.
STATE OF CONNECTICUT
Argued
January 9, 2019
Procedural
History
Amended
petition for a new trial following the petitioner's
conviction of the crimes of attempt to commit murder,
conspiracy to commit murder, kidnapping in the first degree,
conspiracy to commit kidnapping in the first degree, sexual
assault in the first degree, conspiracy to commit sexual
assault in the first degree, assault in the first degree,
conspiracy to commit assault in the first degree and criminal
possession of a firearm, brought to the Superior Court in the
judicial district of Hartford and tried to the court, Hon.
Edward J. Mullarkey, judge trial referee; judgment denying
the petition, from which the petitioner appealed to this
court, which dismissed the appeal; subsequently, the court,
Hon. Edward J. Mullarkey, judge trial referee, denied the
petitioner's request for leave to file a late petition
for certification to appeal, and the petitioner appealed to
this court. Appeal dismissed.
Dante
R. Gallucci, assigned counsel, for the appellant
(petitioner).
Denise
B. Smoker, senior assistant state's attorney, with whom,
on the brief, were Gail P. Hardy, state's attorney, and
Donna Mambrino, senior assistant state's attorney, for
the appellee (respondent).
Keller, Moll and Bishop, Js.
OPINION
PER
CURIAM.
The
petitioner, James A. Mitchell, appeals from the trial
court's denial of his request for leave to file a late
petition for certification to appeal from the denial of his
petition for a new trial. On appeal, the petitioner claims
that the court abused its discretion in denying his request
because the court, in considering the length of the delay in
filing the request, did not consider the reasons for the
delay or any other factors relevant to permitting a late
filing but, rather, addressed the merits of the
petitioner's appeal. We dismiss this appeal.
The
following procedural history was outlined by this court in
the petitioner's habeas appeal: ‘‘In 2005,
following a jury trial, the petitioner was convicted of
attempt to commit murder in violation of General Statutes
§§ 53a-49 (a), 53a-8 and 53a-54a, conspiracy to
commit murder in violation of General Statutes §§
53a-48 (a) and 53a-54a, kidnapping in the first degree in
violation of General Statutes §§ 53a-8 and 53a-92
(a) (2) (A), conspiracy to commit kidnapping in the first
degree in violation of General Statutes §§ 53a-48
and 53a-92 (a) (2) (A), sexual assault in the first degree in
violation of General Statutes §§ 53a-8 and 53a-70
(a) (1), conspiracy to commit sexual assault in the first
degree in violation of General Statutes §§ 53a-48
and 53a-70 (a) (1), assault in the first degree in violation
of General Statutes §§ 53a-8 and 53a-59 (a) (5),
conspiracy to commit assault in the first degree in violation
of General Statutes §§ 53a-48 (a) and 53a-59 (a)
(5), and criminal possession of a firearm in violation of
General Statutes § 53a-217 (a) (1). The court imposed a
total effective sentence of fifty-seven years imprisonment.
‘‘The
petitioner appealed from the judgment of conviction to this
court, which affirmed the judgment of the trial court.
State v. Mitchell, 110 Conn.App. 305, 955 A.2d 84,
cert. denied, 289 Conn. 946, 959 A.2d 1012 (2008).''
Mitchell v. Commissioner of Correction, 156
Conn.App. 402, 404, 114 A.3d 168, cert. denied, 317 Conn.
904, 114 A.3d 1220 (2015). During the pendency of the
petitioner's direct appeal, he filed a petition for a new
trial on January 18, 2006.[1] In 2010, the petitioner filed a
petition for a writ of habeas corpus, which the habeas court
denied. Id., 406-407. This court affirmed that
decision. Id., 421.
Following
a period of several years, during which the petitioner's
direct and habeas appeals were decided, a hearing on the
petition for a new trial was held on divers dates in 2016. On
August 22, 2016, the trial court, Hon. Edward J.
Mullarkey, judge trial referee, issued a memorandum of
decision denying the petition for a new trial. On September
28, 2016, the petitioner appealed from the trial court's
denial of his petition for a new trial. On September 5, 2017,
the petitioner was notified by this court that a petition for
certification to appeal had not been filed as required
pursuant to General Statutes § 54-95 (a).[2] Thereafter, on
September 8, 2017, the petitioner filed a request for leave
to file a petition for certification to appeal with the trial
court. On September 14, 2017, after a hearing, this court
dismissed the petitioner's appeal for failure to comply
with § 54-95 (a).
On
October 12, 2017, the trial court, relying on § 54-95
(a) and our Supreme Court's decision in Santiago v.
State, 261 Conn. 533, 804 A.2d 801 (2002), denied the
petitioner's request for leave to file a late petition
for certification to appeal. This appeal followed.
The
petitioner's sole claim on appeal, related to the trial
court's denial of his request for leave to file a late
petition for certification to appeal, does not merit
extensive discussion. In Santiago v. State, supra,
261 Conn. 539, 543, our Supreme Court held that, even though
the failure to comply with § 54-95 (a) is not a
jurisdictional bar to an appeal from the denial of a petition
for a new trial, ‘‘the certification requirement
of § 54-95 (a) is mandatory rather than
directory.'' In addition, the court in
Santiago rejected the petitioner's argument that
the state had waived its right to seek dismissal of the
petitioner's appeal, concluding that ‘‘any
purported waiver by the state of the certification
requirement of § 54-95 (a) simply is not an adequate
substitute for compliance with that requirement . . .
.'' Id., 544. As such, the court concluded
that there was ‘‘no reason why an appellate
tribunal should entertain an appeal from a denial of a
petition for a new trial unless the petitioner first has
sought certification to appeal pursuant to § 54-95
(a).'' Id. In reaching this conclusion, the
court noted that ‘‘the decision of whether to
entertain an untimely request for certification to appeal . .
. is within the sound discretion of the [trial] court. . . .
In exercising that discretion, the court should consider the
reasons for the delay.'' (Citation omitted; internal
quotation marks omitted.) Id., 544-45 n.17. The
court further reiterated that ‘‘[the trial] court
will be required to decide whether to excuse the
petitioner's delay in filing his petition for
certification to appeal . . . with due regard to the
length of the delay, the reasons for the delay, and any other
relevant factors.'' (Citation omitted; emphasis
added.) Id., 545 n.18.
In the
case at hand, the petitioner claims that in denying his
request for leave to file a late petition, the trial court
abused its discretion by failing to consider the reasons for
the delay and, instead, denied his ...