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State v. Carter

Court of Appeals of Connecticut

November 5, 2019

STATE OF CONNECTICUT
v.
ANTHONY CARTER

          Argued September 11, 2019

         Procedural History

         Substitute information charging the defendant with 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 and tried to the jury before Mulcahy, J.; verdict and judgment of guilty; thereafter, the court, Schuman, J., granted the state's motion to dismiss the defendant's motion to set aside the judgment; subsequently, the court, Schuman, J., denied the defendant's motion for reconsideration; thereafter, the court, Schuman, J., dismissed the defendant's motion to set aside the judgment, and the defendant appealed to this court. Appeal dismissed.

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

          Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Richard J. Rubino, senior assistant state's attorney, for the appellee (state).

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

          OPINION

          ALVORD, J.

         The self-represented defendant, Anthony Carter, appeals from the trial court's dismissal of his motion to set aside a judgment of conviction imposed on August 2, 2002. On appeal, the defendant claims that (1) the prosecutor committed fraud by writing in the state's response to the defendant's motion for reconsideration, dated June 2, 2017, that it was not ‘‘[t]he appropriate mechanism'' to secure relief and that a ‘‘motion for a new trial or a motion to set aside the judgment'' would be; (2) the court's determination that it lacked subject matter jurisdiction over his motion to set aside his judgment of conviction was erroneous; and (3) even if the court did not err in its subject matter jurisdiction determination, the state ‘‘[submitted] to the jurisdiction of the court.'' The state argues, in part, that because the defendant fails to challenge all independent grounds for the court's adverse ruling, his appeal is rendered moot. We agree with the state. Accordingly, we dismiss the defendant's appeal.[1]

         The following relevant facts are set forth in our decision from one of the defendant's prior appeals. State v. Carter, 139 Conn.App. 91, 55 A.3d 771 (2012), cert. denied, 307 Conn. 954, 58 A.3d 974 (2013). ‘‘[T]he defendant's prosecution arose from the terrible consequences of a drug turf war, in which a stray bullet fired from the defendant's gun struck and seriously injured a seven year old girl. . . . Following a jury trial, the defendant was convicted 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 § 53a-217 (a) (1), and the court rendered judgment accordingly. The court sentenced the defendant to a total effective term of twenty-seven years incarceration.'' (Internal quotation marks omitted.) Id., 92.

         On June 20, 2017, the defendant filed a motion to set aside the judgment.[2] Therein, the defendant claimed ‘‘after-discovered fraud on the court.'' (Internal quotation marks omitted.) In his memorandum of law in support of the operative motion, the defendant expounded ‘‘that the prosecution altered, concealed and/or removed from the trial proceedings documents prepared by the Hartford Police Department with purpose to impair its verity and availability, and that the prosecution passed the altered document off to the defense, representing it to be ‘[simply] a distance' measurement, knowing it to be false.'' On August 3, 2017, the state moved to dismiss the operative motion, arguing that the trial court lacked subject matter jurisdiction. The trial court, Schuman, J., granted the state's motion on October 30, 2017.[3]

         In the court's ruling, it detailed part of the defendant's ‘‘voluminous history'' of postconviction litigation, including a motion to open and set aside the judgment of conviction filed in 2010. The defendant based his 2010 motion on ‘‘fraud concerning ballistics evidence and reports prepared by the Hartford Police Department about that evidence.'' (Internal quotation marks omitted.) That motion was denied by the court, Gold, J., on two grounds: (1) ‘‘the motion was filed well beyond the four month period after the entry of the criminal conviction and judgment''; and (2) ‘‘the motion was barred by collateral estoppel in that Judge Nazzaro had rejected the same claim in the defendant's third habeas petition.''[4] Applying this history to the operative motion, Judge Schuman concluded that the defendant's claim bore ‘‘only semantic differences from the defendant's claim . . . raised in [the 2010] motion to open.'' As that claim had already been considered and rejected multiple times before, most recently by Judge Gold and this court, the trial court concluded that it ‘‘necessarily must grant the state's motion to dismiss . . . .''

         The court further concluded that, even if the defendant's claim were to be treated as distinct from the one he had raised in 2010, the operative motion still warranted dismissal. First, the court cited to State v. Carrillo Palencia, 162 Conn.App. 569, 580-82, 132 A.3d 1097, cert. denied, 320 Conn. 927, 133 A.3d 459 (2016), for the proposition that ‘‘absent a statute or rule to the contrary, the Superior Court loses jurisdiction over the defendant's conviction at the time of sentencing, '' a principle that ‘‘applies to a postconviction ‘motion to open judgment.' '' The court stated that the defendant's motion to set aside the judgment was substantively the same as a motion to open the judgment ‘‘and, therefore, falls under the same rule.'' Second, the court rejected the defendant's argument that, under Connecticut law, there is a fraud exception to the general finality rule for criminal judgments and that, even if such an exception existed, the defendant's claim was ‘‘too vague to label it definitively as one of fraud on the court.''

         The defendant filed the present appeal on May 17, 2018. In the defendant's preliminary statement of issues, he claimed that the trial court abused its discretion by dismissing the operative motion after determining ‘‘it did not have subject matter jurisdiction . . . .'' In the defendant's appellate brief, he raises three claims, which are set forth in the opening paragraph of this decision. The defendant does not, however, claim that the court's collateral estoppel ruling was erroneous.[5]

         The state argues that even if the court ‘‘incorrectly determined that it lacked jurisdiction to set aside the judgment, '' the court's ruling ‘‘dismissing the [operative] motion on the basis of collateral estoppel . . . stand[s] unchallenged.'' According to the state, the defendant's failure to challenge the court's collateral estoppel ruling renders moot his ...


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