State v. Custodio

126 Conn.App. 539

13 A.3d 1119

STATE of Connecticut

v.Pedro CUSTODIO.

No. 32527.

Appellate Court of Connecticut.

Argued Nov. 8, 2010.Decided Feb. 15, 2011.

Temmy Ann Pieszak, chief of habeas corpus services, for the appellant (defendant).Robert J. Scheinblum, senior assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, Eva Lenczewski, supervisory assistant state's attorney, and Catherine Brannelly Austin, senior assistant state's attorney, for the appellee (state).DiPENTIMA, C.J., and GRUENDEL and FOTI, Js.GRUENDEL, J.

The defendant, Pedro Custodio, appeals from the judgment of the trial court committing him to the custody of the commissioner of mental health and addiction services (commissioner) and requiring him to submit to periodic competency evaluations pursuant to General Statutes (Rev. to 2009) § 54–56d (m).¹ The defendant claims that the court improperly (1) concluded that § 54–56d (m), as amended by Public Acts 1998, No. 98–88, § 2(act), applies retroactively, (2) concluded that it possessed personal jurisdiction over him, (3) ordered him to submit to periodic competency evaluations and (4) denied his motion to recuse. We affirm the judgment of the trial court.

On Cherry Street in Waterbury in 1991, the defendant allegedly fired multiple gunshots into the neck of the victim, Americo Pagan Cruz, causing his death. He subsequently was arrested and charged by information with murder in violation of General Statutes § 53a–54a. Following a hearing, the court found that the state had presented sufficient evidence to find probable cause to believe that the defendant committed the crime charged. A competency hearing thereafter was conducted on October 25, 1991, pursuant to General Statutes (Rev. to 1991) § 54–56d, at the conclusion of which the court found that the defendant was incompetent and ordered that efforts be made to restore his competency. On February 10, 1992, the court conducted a second competency hearing. At its conclusion, the court found that the defendant remained incompetent and that there was no substantial probability that he would regain competence. Accordingly, the court ordered that he be committed to the custody of the commissioner of mental health for purposes of applying for civil confinement. The defendant subsequently was civilly committed and placed in the Fairfield Hills Hospital in the summer of 1992.²

Months later and unbeknownst to the court or the state's attorney, the defendant was released from that hospital and thereafter lived at various residences in Waterbury for approximately eighteen years. At all times, his criminal case remained open on the criminal docket of the Superior Court for the judicial district of Waterbury.

In July, 2010, the clerk's office brought the defendant's open criminal file to the attention of the court. In response, the court, Damiani, J., ordered a hearing to be held on July 26, 2010. Because notice of the hearing was not provided to the defendant, he did not appear. At that hearing, the state's attorney explained that she recently had learned, “to ... my horror ... that [the defendant] was released later in 1992.... We were never notified, the state was never notified, the clerk's office was never notified. This file apparently is kept in their statistical list of ... somewhat active cases, and no one had any idea that this had occurred.” She therefore requested that a failure to appear warrant issue. The local public defender objected to that request due to the lack of notice to the defendant. In granting the state's request, the court stated: “Here, we have a man who's charged with murder, an alleged shooting, going back to 1991; he's found to be not competent and not restorable, he's committed to the [commissioner] for civil confinement. He gets committed. They then release him in 1992. He never tells the court one way or another ... doesn't contact his lawyer, the state's attorney or the court. They release him to the community. [The defendant], if he's still alive, has been walking as a free man for the past eighteen years, charged with murder. I understand ... if in fact the state went to trial on a failure to appear charge [that it] could not prove a wilful, intentional failure to appear, but I have to set the wheels in motion to find [the defendant], to get him before me, to order another competency exam; if he is not restorable, see where he's going to go so we know exactly where he is, rather than having him walking the streets and, God forbid, something happen[s].... If [the defendant] comes in, I'll dismiss the failure to appear [charge]....” The defendant was arrested later that day.

On July 27, 2010, the defendant was arraigned. At the outset, the court noted that “[a]t present, [the defendant] is charged with murder and failure to appear in the first degree.” Acknowledging that the defendant was not provided notice of the prior day's proceeding, the court dismissed the failure to appear charge. As to the remaining murder charge, the court advised the defendant of his rights, ordered a bond in the amount of $200,000 and scheduled a competency hearing for August 24, 2010.

On August 2, 2010, the defendant filed an objection to the proceedings predicated on lack of personal jurisdiction due to his allegedly unlawful arrest and the retroactive application of § 54–56d (m). The defendant also filed a motion to recuse the trial judge and an offer to participate in voluntary reexamination of his competency, subject to certain conditions. After hearing argument thereon, the court denied those motions.

The court held a competency hearing on August 24, 2010. At its conclusion, the court found that the defendant remained incompetent and that there was not a substantial probability that his competence could be restored. Pursuant to § 54–56d (m), the court ordered that the defendant be committed to the custody of the commissioner, that he be provided services in a less restrictive setting than civil confinement and that he submit to periodic competency evaluations. From that determination, the defendant appeals.

I

Before considering the defendant's claims, we first address the threshold question of whether this court lacks subject matter jurisdiction over the appeal. “The lack of a final judgment implicates the subject matter jurisdiction of an appellate court to hear an appeal. A determination regarding ... subject matter jurisdiction is a question of law [over which we exercise plenary review].” (Internal quotation marks omitted.) State v. Rhoads, 122 Conn.App. 238, 242, 999 A.2d 1, cert. denied, 298 Conn. 913, 4 A.3d 836 (2010). “In a criminal proceeding, there is no final judgment until the imposition of a sentence.... [Our Supreme Court nonetheless has] determined ... that certain interlocutory orders have the attributes of a final judgment and consequently are appealable under ... § 52–263.... In State v. Curcio, [191 Conn. 27, 31, 463 A.2d 566 (1983) ], [the court] explicated two situations in which a party can appeal an otherwise interlocutory order: (1) when the order or action terminates a separate and distinct proceeding, or (2) [when] the order or action so concludes the rights of the parties that further proceedings cannot affect them.” (Citation omitted; internal quotation marks omitted.) State v. Jenkins, 288 Conn. 610, 617–18, 954 A.2d 806 (2008). That second situation “focuses on the nature of the right involved. It requires the parties seeking to appeal to establish that the trial court's order threatens the preservation of a right already secured to them and that right will be irretrievably lost and the [party] irreparably harmed unless they may immediately appeal.... Thus, a bald assertion that the defendant will be irreparably harmed if appellate review is delayed until final adjudication ... is insufficient to make an otherwise interlocutory order a final judgment. One must make at least a colorable claim that some recognized statutory or constitutional right is at risk.” (Internal quotation marks omitted.) Id., at 618, 954 A.2d 806.

In the present case, the defendant claims that the court improperly applied § 54–56d (m) retroactively. Because that statute as it existed at the time of his arrest in 1991 did not authorize the court to order him to submit to periodic competency evaluations, he maintains that he has a statutory interest to not be subject thereto. He further argues that “[i]n light of his lack of competence and the fact that he cannot be restored, this case will never come to trial and never result in a final judgment from which the defendant might appeal in a belated effort to establish that he was not lawfully subjected to reexaminations, reports to the court and court appearances.” We agree, and note that in State v. Jenkins, our Supreme Court held that a presentence order issued pursuant to § 54–56d was appealable immediately because “if the trial court's decision is erroneous, [the defendant's right to due process] will be irretrievably lost and the [defendant will be] irreparably harmed unless [he] may immediately appeal.” (Internal quotation marks omitted.) Id., at 619, 954 A.2d 806; see also State v. Curtis, 22 Conn.App. 199, 202–206, 576 A.2d 1299 (1990) (reviewing merits of appeal from interlocutory order issued pursuant to General Statutes [Rev. to 1987] § 54–56d [m] that imposed condition of release requiring annual periodic examinations of defendant's competency). Because the defendant raises a colorable claim that a presently existing statutory right is at risk, the interlocutory order of the trial court properly is before this court.

II

The defendant contends that the court improperly applied § 54–56d (m), as amended by the act, in retroactive fashion. Whether that act applies retroactively is a question of law over which our review is plenary. State v. Parra, 251 Conn. 617, 622, 741 A.2d 902 (1999).

It is well established...