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Carter v. State

Court of Appeals of Connecticut

November 5, 2019

ANTHONY CARTER
v.
STATE OF CONNECTICUT

          Argued September 11, 2019

         Procedural History

         Petition for a new trial following the petitioner's conviction of the crimes of assault in the first degree, attempt to commit assault in the first degree, risk of injury to a child and criminal possession of a firearm, brought to the Superior Court in the judicial district of Hartford, where the court, Noble, J., granted the respondent's motion for summary judgment and rendered judgment thereon; thereafter, the court denied the petitioner's motion for reconsideration, and the petitioner appealed to this court; subsequently, the court, Noble, J., denied the petitioner's petition for certification to appeal and motion requesting leave to file a late petition for certification; thereafter, the court, Noble, J., denied the petitioner's motion for reconsideration. Appeal dismissed.

          Anthony Carter, self-represented, the appellant (petitioner).

          Jo Anne Sulik, supervisory assistant state's attorney, with whom, on the brief, was Gail P. Hardy, state's attorney, for the appellee (respondent).

          DiPentima, C. J., and Alvord and Pellegrino, Js.

          OPINION

          DiPENTIMA, C. J.

         The self-represented petitioner, Anthony Carter, appeals from the judgment of the trial court denying his petition for a new trial. The court granted the motion for summary judgment filed by the state of Connecticut on the ground that the petitioner had filed the petition for a new trial past the applicable statute of limitations. See General Statutes (Rev. to 2001) § 52-582. The petitioner then sought to appeal the trial court's decision. His petition for certification to appeal was untimely, however, and the trial court denied his petition. On appeal, the petitioner claims that the court abused its discretion by denying his late petition for certification to appeal. We disagree and, accordingly, dismiss this appeal.

         The record reveals the following relevant facts and procedural history. In 2002, the petitioner was convicted, after trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (5), attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (5), risk of injury to a child in violation of General Statutes § 53-21 (a) (1) and criminal possession of a firearm in violation of General Statutes (Rev. to 2001) § 53a-217 (a) (1). He was sentenced to a twenty-seven year prison term. In 2004, this court affirmed the conviction. State v. Carter, 84 Conn.App. 263, 283, 853 A.2d 565, cert. denied, 271 Conn. 932, 859 A.2d 931 (2004), cert. denied, 544 U.S. 1066, 125 S.Ct. 2529, 161 L.Ed.2d 1120 (2005). The petitioner has since filed unsuccessful actions in state and federal courts, including multiple petitions seeking writs of habeas corpus and a writ of error coram nobis, motions to correct an illegal sentence and motions to set aside the judgment.[1]

         In January, 2014, the petitioner commenced this action by filing a petition for a new trial pursuant to General Statutes § 52-270. The petitioner alleged that he had been convicted due to fraud by the prosecutor. Specifically, the petitioner claimed that the prosecutor made ‘‘false or misleading allegations calculated to deceive the court in order to obtain a ruling in the state's favor'' regarding evidence of nine millimeter shell casings found by the Hartford Police Department.

         In responding to the petition, the state asserted the special defense that the petitioner was not entitled to a new trial because the petition had been filed more than three years after judgment had been rendered and, thus, was barred by the applicable statute of limitations under General Statutes (Rev. to 2001) § 52-582. In his reply, the petitioner responded that the statute of limitations was not applicable because ‘‘judgments obtained by means of fraud may be attacked at any time and, therefore, toll the statute of limitations.''

         In October, 2016, the state filed a motion for summary judgment on the ground that the petition for a new trial was filed more than eight years after the statute of limitations had passed. Thereafter, the court granted the state's motion for summary judgment on August 15, 2017. In its memorandum of decision, the court, Noble, J., determined that the petitioner had been sentenced on August 2, 2002, and, therefore, the period for filing a petition for a new trial ended on August 2, 2005. See General Statutes (Rev. to 2001) § 52-582.[2]

         The court noted that the petitioner sought to establish fraud on the part of the prosecutor and argued that such fraud would toll the statute of limitations. The court found, however, that the petitioner had not proffered any evidence ‘‘that there was any fraudulent concealment on the part of the [prosecutor]. The [petitioner's] petition and arguments in opposition of the motion for summary judgment are devoid of any allegations that would speak to the elements necessary to establish a fraudulent concealment and are contrary to nearly every piece of evidence submitted by the [state].'' The court then granted the state's motion for summary judgment. The petitioner filed a motion for reconsideration on August 23, 2017, which the trial court denied on September 7, 2017.

         The petitioner filed his appeal to this court on October 3, 2017. On February 7, 2018, the petitioner filed both a petition for certification to appeal the denial of the petition for a new trial and a request for leave to file a late petition for certification, which the petitioner titled ‘‘Motion to Accept Late Filing of Petition for Certification, '' with the trial court. On February 9, 2018, the court denied the petitioner's request for leave to file a late petition for certification. The court also denied the petition for certification. In response to ...


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