Anderson v. Comm'r of Corr.

158 Conn.App. 585

119 A.3d 1237

Francis ANDERSON

v.COMMISSIONER OF CORRECTION.

No. 35846.

Appellate Court of Connecticut.

Argued April 16, 2015.

Decided July 21, 2015.

James P. Sexton, assigned counsel, with whom was Michael S. Taylor, assigned counsel, for the appellant (petitioner).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Matthew Gedansky, state's attorney, and Andrew Reed Durham, assistant state's attorney, for the appellee (respondent).

SHELDON, KELLER and MULLINS, Js.

Opinion

KELLER, J.

The petitioner, Francis Anderson, appeals following the habeas court's denial of his petition for certification to appeal from the judgment dismissing with prejudice his amended petition for a writ of habeas corpus. The petitioner claims that the court erred by denying his petition for certification to appeal and dismissing his amended petition with prejudice because (1) an order that the petitioner had violated, which precipitated the court's dismissal of his amended petition with prejudice, was not reasonably clear; (2) the court's dismissal of his amended petition with prejudice was not proportionate to the petitioner's violation of the order; and (3) the court committed plain error by failing to comply with Practice Book § 23–40 and General Statutes § 52–470. We agree with the petitioner's second claim and reverse the judgment of the court.¹

The following facts and procedural history are relevant here. On March 3, 2011, the petitioner pleaded guilty to two counts of assaulting a peace officer in violation of General Statutes § 53a–167c.² The trial court, Hon. Terence A. Sullivan, judge trial referee, sentenced the petitioner to a total effective sentence of five years incarceration, to be served consecutively to any previous sentence he was serving.

On February 19, 2013, the petitioner filed an amended petition for a writ of habeas corpus.³ On June 3, 2013, prior to the evidentiary portion of the petitioner's habeas trial, the habeas court, Kwak, J., asked whether the parties wished to discuss any preliminary matters. The following exchange occurred on the record:

“[The Petitioner's Counsel]: Your Honor, another preliminary matter. My client is handcuffed and, absent any objection from the transporting correction officers, I'd ask that the—

“The Court: That's fine with me as long as the correction officers and the marshals are okay with removing the handcuffs. But, it's up to them.

“The Correction Officer: I have an issue with him being—him not being handcuffed.

“The Court: Okay.

“The Correction Officer: He's assaulted staff on a number of occasions, so I have an issue with that.

“The Court: All right, that's fine. I'm sorry, counsel, but that's—“[The Petitioner's Counsel]: That's—

“The Court: Security is up to the marshals and the—

“The Petitioner: Excuse me. I got a problem with this officer.

“The Court: Sir—

“The Petitioner: I'm gonna leave. Come on. Let's go back to the facility.

“The Court: Sir, this is your petition. If you leave now, it's going to get dismissed with prejudice. Do you understand? All right. [Petitioner's counsel], I'm sorry, but your client just, for the record, left the courtroom. I advised him that, if he left today, this was his habeas trial and that it would be dismissed with prejudice and he disregarded my warning and left the courtroom. Anything to add, [petitioner's counsel]? ...

“[The Petitioner's Counsel]: I would ask Your Honor to consider based on [the petitioner's] history—and part of the history is a conduct disorder, explosive temper issues—that Your Honor consider a dismissal without prejudice as opposed to with prejudice.

“The Court: Okay. Well, this is—I'm going to take his action as a deliberate bypass of his trial today, which was scheduled, and obviously the state has expended a lot of time and effort to bring him here as well as the counsel and the witnesses that were supposed to be called today. So, therefore, I'm going to deny your motion and dismiss his—his [amended] petition with prejudice.”

On June 11, 2013, the petitioner filed a petition for certification to appeal, which the court denied on June 17, 2013. Subsequently, he filed the present appeal on July 5, 2013.

On November 26, 2013, the petitioner filed a motion for articulation, wherein he alleged that the habeas court had failed to provide sufficient facts and legal analysis upon which to base its dismissal of his amended petition with prejudice. Specifically, among other requests, he asked the court to: (1) articulate the legal authority it relied on to dismiss his amended petition with prejudice; (2) articulate the specific factual findings it relied on to dismiss his amended petition with prejudice; (3) address a number of specific inquiries, including whether he had received prior notice that actions delaying the habeas trial would result in a dismissal of his amended petition with prejudice and whether it had provided him with its full verbal warning before he left the courtroom; and (4) address why his alleged psychological impairments did not support a dismissal of his amended petition without prejudice.

The court granted the petitioner's motion for articulation. The court began by explaining that it relied on Practice Book §§ 14–3⁴ and 23–29(5)⁵ to dismiss the petitioner's amended petition with prejudice on the basis of his failure to prosecute his claims.

In response to the petitioner's request that it articulate the specific factual findings it relied on to dismiss his amended petition with prejudice, the court stated: “The petitioner was aware the matter was on for trial and was present in the courtroom with assigned counsel at the onset of trial. Counsel for the petitioner requested that the court permit the removal of the petitioner's handcuffs, absent any objection by the correction officers. The court indicated its willingness to have the handcuffs removed so long as the correction officers agreed to their removal. One of the correction officers indicated that the petitioner had assaulted staff on a number of occasions and opposed the removal of the handcuffs. The petitioner expressed that he had an issue with the correction officer who opposed removal of the handcuffs and then absented himself from the court-room and proceedings, thereby failing to prosecute the claims in his habeas corpus petition.”

Next, in response to the petitioner's inquiry as to whether the petitioner had received adequate notice that dismissal with prejudice would result from any actions that delayed the habeas proceedings, the court stated that the petitioner was represented by counsel and the court's file contained all of the relevant notices and orders. Last, the court stated that it had warned the petitioner before he left the courtroom that it would dismiss his amended petition with prejudice if he exited the courtroom. The court provided no articulation in response to the petitioner's request for the court to address why the petitioner's alleged psychological impairments did not warrant dismissal of his amended petition without prejudice.⁶

On January 21, 2014, the petitioner filed a motion for further articulation, which the court denied. He subsequently filed a motion for review with this court on February 20, 2014. This court granted the motion for review, but denied the relief requested therein. This appeal followed.

We begin by setting forth the relevant standard of review. “In Simms v. Warden, 229 Conn. 178, 187, 640 A.2d 601 (1994), we concluded that ... § 52–470(b) prevents a reviewing court from hearing the merits of a habeas appeal following the denial of certification to appeal unless the petitioner establishes that the denial of certification constituted an abuse of discretion by the habeas court. In Simms v. Warden, 230 Conn. 608, 615–16, 646 A.2d 126 (1994), we incorporated the factors adopted by the United States Supreme Court in Lozada v. Deeds, 498 U.S. 430, 431–32, 111 S.Ct. 860, 112 L.Ed.2d 956 (1991), as the appropriate standard for determining whether the habeas court abused its discretion in denying certification to appeal. This standard requires the petitioner to demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.... A petitioner who establishes an abuse of discretion through one of the factors listed above must then demonstrate that the judgment of the habeas court should be reversed on its merits.... In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous.” (Internal quotation marks omitted.) Damato v. Commissioner of Correction, 156 Conn.App. 165, 167, 113 A.3d 449, cert. denied, 317 Conn. 902, 114 A.3d 167 (2015).

The petitioner asserts that the court abused its discretion by denying his petition for certification to appeal, which requires us to examine the merits of his underlying claims. He contends that the court erred by dismissing his amended petition with prejudice because: (1) the court's order demanding that he remain in the courtroom or risk dismissal of his amended petition with prejudice was not reasonably clear; and (2) the court's dismissal of his amended petition with prejudice was too severe in proportion to his act of leaving the courtroom. Alternatively, he claims that the court committed plain error by failing to comply with Practice Book § 23–40⁷ and General Statutes § 52–470.⁸

The petitioner's claim that the court's dismissal of his amended petition with prejudice constituted an unduly severe sanction for his act of leaving the courtroom is dispositive of the present appeal. Specifically, he contends that the court could have imposed other, less draconian sanctions...