Carter v. State

         Argued September 11, 2019.

         Appeal from the Superior Court in the judicial district of Hartford, where the court, Noble, J.

Page 887

          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.

         [194 Conn.App. 210] 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 [194 Conn.App. 211] 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.

Page 888

          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 [194 Conn.App. 212] 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 ...