Pentland v. Comm'r of Corr.

200 Conn.App. 296

238 A.3d 778

Robert V. PENTLAND III

v.COMMISSIONER OF CORRECTION

AC 42761

Appellate Court of Connecticut.

Argued March 11, 2020

Officially released September 22, 2020

John C. Drapp III, assigned counsel, for the appellant (petitioner).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Adrienne Russo, assistant state's attorney, for the appellee (respondent).

Alvord, Keller and Elgo, Js.

ELGO, J.

This is a certified appeal from the judgment of the habeas court dismissing the amended petition for a writ of habeas corpus filed by the petitioner, Robert V. Pentland III. On appeal, the petitioner claims that the court improperly dismissed his petition for lack of subject matter jurisdiction on the ground that he already had served his sentence, and, therefore, was not "in custody." We conclude that, with respect to the convictions challenged in the amended petition, the petitioner was not in the custody of the respondent, the Commissioner of Correction. Accordingly, we affirm the judgment of the habeas court.

The following facts and procedural history are relevant to this appeal. On November 17, 2008, the petitioner was arrested and charged with sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1), risk of injury to a child in violation of General Statutes § 53-21 (a) (2), and unlawful restraint in the second degree in violation of General Statutes § 53a-96 (2008 charges). On June 1, 2010, the petitioner was arrested and charged with two counts of risk of injury to a child in violation of § 53-21 (a) (2) (2010 charges). On those charges, he was held in pretrial confinement in lieu of bond and, on June 9, 2010, his bond was raised on the 2010 charges in order to allow for pretrial confinement credit on the 2008 charges.

On December 20, 2010, the petitioner was arrested and charged with two counts of tampering with a witness in violation of General Statutes § 53a-151 (witness tampering charges). Following a trial to the court, J. Fischer, J ., the petitioner was found guilty of both counts and, on December 9, 2011, sentenced to a term of one year of imprisonment on each count, to be served concurrently. The petitioner's total effective sentence expired on December 19, 2011.

On February 16, 2012, two months after the expiration of his sentence on the witness tampering convictions, the petitioner pleaded guilty under the Alford doctrine¹ to the 2008 charges and the 2010 charges. On May 22, 2012, the court, Fasano, J ., sentenced the petitioner to a total effective term of 30 years of incarceration, execution suspended after 222 months, followed by 25 years of probation.

On May 22, 2015, the petitioner filed a petition for a writ of habeas corpus challenging his witness tampering convictions (2015 petition). On March 29, 2016, pursuant to Practice Book § 23-29 (1),² the habeas court, Oliver, J ., dismissed the 2015 petition on the ground that "the petitioner was no longer in custody for the conviction being challenged at the time the petition was filed." On May 2, 2016, the petitioner appealed from the habeas court's dismissal of the 2015 petition.

On March 20, 2017, before that appeal was resolved, the petitioner filed a second petition for habeas corpus (2017 petition). The 2017 petition challenged the petitioner's witness tampering convictions on the ground that his habeas counsel, Christopher Y. Duby, provided ineffective assistance because "he never contacted the petitioner to discuss the case, nor did he investigate the case, nor become familiar with surrounding law." On March 28, 2017, the habeas court, Bright, J ., dismissed the 2017 habeas petition pursuant to Practice Book § 23-29 (4)³ because the petitioner's appeal from the dismissal of the 2015 petition was pending before this court. On April 19, 2017, the habeas court granted the petitioner's "Motion to Reargue/Reconsider" the dismissal of the 2017 petition, and the petitioner filed an amended petition that same day.

On September 26, 2017, this court affirmed the dismissal of the 2015 habeas petition. See Pentland v. Commissioner of Correction , 176 Conn. App. 779, 169 A.3d 851 ( Pentland I ), cert. denied, 327 Conn. 978, 174 A.3d 800 (2017). In Pentland I , this court concluded that "the petitioner failed to allege sufficient facts [in the 2015 petition] to establish the habeas court's subject matter jurisdiction to hear his petition for a writ of habeas corpus."⁴ Id., at 786, 169 A.3d 851.

On November 29, 2018, the habeas court, Newson, J ., dismissed the 2017 petition, relying on Pentland I . In doing so, the court stated: "It would appear to follow, as a matter of law, that, if the habeas court lacked jurisdiction to hear the underlying matter, the court also lacks jurisdiction to grant the petitioner relief for any other claims related to that same petition, including a claim that counsel was ineffective in his representation of the petitioner in that same case."⁵

On December 10, 2018, the petitioner filed a "Motion to Reargue/Reconsider Judgment of Dismissal" challenging the habeas court's reliance on Pentland I to dismiss his 2017 petition. On December 11, 2018, the court granted the petitioner's motion to reargue/reconsider. On January 31, 2019, the petitioner filed an amended petition (2019 petition). On February 8, 2019, the habeas court held a hearing on the motion to reargue and reconsider its dismissal of the 2017 petition but, by then, had before it the 2019 petition. That petition, which is the subject of this appeal, was dismissed for lack of subject matter jurisdiction.⁶ On February 14, 2019, the petitioner filed a petition for certification for appeal, which the habeas court granted, and this appeal followed.

On appeal, the sole issue is whether the habeas court properly dismissed the 2019 petition for lack of subject matter jurisdiction. The petitioner claims that the court improperly concluded that he was not "in custody" for his convictions on the witness tampering charges, and, accordingly, was without subject matter jurisdiction. We disagree.

We begin by setting forth the standard of review. "We have long held that because [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary." (Internal quotation marks omitted.) Ajadi v. Commissioner of Correction , 280 Conn. 514, 532, 911 A.2d 712 (2006). "This court has often stated that the question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time." (Internal quotation marks omitted.) Oliphant v. Commissioner of Correction , 274 Conn. 563, 568–69, 877 A.2d 761 (2005). Furthermore, the question of whether the petitioner is in custody for purposes of a habeas petition implicates the habeas court's subject matter jurisdiction. See Lebron v. Commissioner of Correction , 274 Conn. 507, 526, 876 A.2d 1178 (2005) ("We conclude that the history and purpose of the writ of habeas corpus establish that the habeas court lacks the power to act on a habeas petition absent the petitioner's allegedly unlawful custody. Accordingly, we conclude that the custody requirement in [ General Statutes § 52-466 (governing applications for writs of habeas corpus) ] is jurisdictional."), over-ruled in part on other grounds by State v. Elson , 311 Conn. 726, 747, 754, 91 A.3d 862 (2014).

We now turn to the question of whether the petitioner satisfied the custody requirement embodied in § 52-466. Section 52-466 (a) (1) provides in relevant part: "An application for a writ of habeas corpus ... shall be made to the superior court, or to a judge thereof, for the judicial district in which the person whose custody is in question is claimed to be illegally confined or deprived of such person's liberty." (Emphasis added.) Thus, under Connecticut law, for a court to have subject matter jurisdiction over a petition for a writ of habeas corpus, the petitioner must be in custody at the time the habeas petition is filed. See Lebron v. Commissioner of Correction , supra, 274 Conn. at 530, 876 A.2d 1178. "[C]onsiderations relating to the need for finality of convictions and ease of administration ... generally preclude a habeas petitioner from collaterally attacking expired convictions." (Citation omitted; internal quotation marks omitted.) Id., at 517, 876 A.2d 1178, citing Lackawanna County District Attorney v. Coss , 532 U.S. 394, 402, 121 S. Ct. 1567, 149 L. Ed. 2d 608 (2001).

In the present matter, the petitioner's sentence arising from his convictions for the witness tampering charges had expired long before he filed his 2019 habeas petition. Thus, because the petitioner was not in custody at the time he filed the 2019 petition, the habeas court would lack subject matter jurisdiction. "An exception exists, however, to the custody requirement." Pentland I , supra, 176 Conn. App. at 785, 169 A.3d 851. A petitioner who is serving consecutive sentences may challenge a future sentence even though he is not serving that sentence at the time his petition is filed. See Peyton v. Rowe , 391 U.S. 54, 67, 88 S. Ct. 1549, 20 L. Ed. 2d 426 (1968). A petitioner may also challenge a consecutive sentence served prior to his current conviction if successfully doing so would advance his release date. See Garlotte v. Fordice , 515 U.S. 39, 47, 115 S. Ct. 1948, 132 L. Ed. 2d 36 (1995). "In other words, the federal courts view prior and future consecutive sentences as a ‘continuous stream’ of custody for purposes of the habeas court's subject matter jurisdiction." Oliphant v. Commissioner of Correction , supra, 274 Conn. at 573, 877 A.2d 761.

Because the petitioner is challenging a sentence served prior to the conviction for which he currently is incarcerated, the petitioner asserts that the Garlotte exception should be extended to the facts of this case. Spe...