Villafane v. Comm'r of Corr.

216 Conn.App. 839

287 A.3d 138

Angel VILLAFANE

v.COMMISSIONER OF CORRECTION

AC 43232

Appellate Court of Connecticut.

Argued January 13, 2021

Officially Released December 13, 2022

Cheryl A. Juniewic, New Haven, for the appellant (petitioner).

James M. Ralls, assistant state's attorney, with whom were Angela R. Macchiarulo, senior assistant state's attorney, and Matthew C. Gedansky, state's attorney, and, on the brief, Rocco A. Chiarenza, senior assistant state's attorney, and Margaret E. Kelley, state's attorney, for the appellee (respondent).

Elgo, Suarez and DiPentima, Js.

SUAREZ, J.

The petitioner, Angel Villafane, appeals, following the denial of his petition for certification to appeal, from the judgment of the habeas court dismissing, on its own motion, his amended petition for a writ of habeas corpus pursuant to Practice Book § 23-29.¹

The petitioner argues that the court abused its discretion in denying his petition for certification to appeal and claims that the court improperly dismissed his petition for a writ of habeas corpus without affording him an opportunity to be heard. We agree that the court abused its discretion by denying the petition for certification to appeal. Further, we conclude, in light of our Supreme Court's recent decisions in Brown v. Commissioner of Correction , 345 Conn. 1, 282 A.3d 959 (2022), and in Brown ’s companion case, Boria v. Commissioner of Correction , 345 Conn. 39, 282 A.3d 433 (2022), that the habeas court improperly dismissed the petition for a writ of habeas corpus pursuant to § 23-29 without providing the petitioner with prior notice of its intention to dismiss, on its own motion, the petition and an opportunity to submit a brief or a written response addressing the proposed basis for dismissal. Accordingly, we reverse the judgment of the habeas court.

The following undisputed procedural history is relevant to our resolution of this appeal. "On December 17, 2014, the petitioner pleaded guilty to one count of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2) and one count of criminal violation of a protective order in violation of General Statutes § 53a-223. The petitioner also admitted to violating his probation in two instances and violating a conditional discharge in violation of General Statutes § 53a-32. According to the factual basis provided by the state at the petitioner's plea hearing, the petitioner forced his way into a house occupied by a woman with whom he had [had] a previous relationship, where he proceeded to strike her ‘several times in the head, and then grabbed a knife from the kitchen and attempted to stab her ....’ The prosecutor indicated that the woman's daughter called the police, and, at that time, the petitioner fled from the residence. After canvassing the petitioner, the court determined that the pleas had been ‘knowingly and voluntarily made’ and were supported by a factual basis.

"At the petitioner's sentencing hearing on February 25, 2015, the court imposed a total effective sentence of eight years [of] incarceration followed by seven years of special parole. The court terminated the other probations that the petitioner was serving at the time." Villafane v. Commissioner of Correction , 190 Conn. App. 566, 567–68, 211 A.3d 72, cert. denied, 333 Conn. 902, 215 A.3d 160 (2019).

In 2015, the petitioner filed a petition for a writ of habeas corpus in which he alleged that, in connection with the plea hearing that occurred in this case, his trial counsel had not provided effective assistance and that the trial court, Iannotti, J ., had improperly refused to grant his motion to dismiss his trial counsel. Id., at 568, 211 A.3d 72. The petitioner appealed from the judgment of the habeas court, Sferrazza, J ., denying the petition for a writ of habeas corpus following its denial of his petition for certification to appeal. Id., at 567, 211 A.3d 72. This court dismissed the petitioner's subsequent appeal. Id.

On August 16, 2017, the petitioner, in a self-represented capacity, filed a petition for a writ of habeas corpus in the present habeas action.² On August 28, 2017, the court granted the petitioner's application for waiver of fees and his request for the appointment of counsel. On April 11, 2018, the court granted the motion of the petitioner's appointed counsel, Attorney Robert O'Brien, to withdraw his appearance due to the petitioner's expressed desire to represent himself. On October 5, 2018, the petitioner, in a self-represented capacity, filed an amended petition for a writ of habeas corpus.

On November 19, 2018, the respondent, the Commissioner of Correction, filed his return. On the same day, the petitioner filed his reply. On May 3, 2019, the parties filed a certificate of closed pleadings and the court issued a scheduling order that, among other things, set a trial date of September 25, 2019.

On May 14, 2019, the petitioner filed a motion requesting the appointment of standby counsel. On May 24, 2019, the petitioner filed a motion for summary judgment. The court did not rule on either of these motions.

On May 28, 2019, the court, Newson, J ., on its own motion, issued an order in which it dismissed the amended petition for a writ of habeas corpus. The court did not afford the petitioner prior notice of its intention to dismiss the amended petition or any opportunity to address the proposed basis for its dismissal. The court stated: "Upon review of the complaint ... the court hereby gives notice pursuant to Practice Book § 23-29 that the matter has been dismissed for the following reasons: (1) The court lacks jurisdiction .... More specifically, the petitioner entered a guilty plea, which waived any alleged constitutional defects not involving the court's jurisdiction. ...

"The complaint, read in a light most favorable to the petitioner, does not attack the voluntary, intelligent or knowing nature of the plea, but attacks the sufficiency of the evidence to support the plea, separation of powers, and the Code of Judicial Conduct, none of which falls within the jurisdiction of the habeas court. ..." (Citations omitted; internal quotation marks omitted.)

Thereafter, the petitioner filed a petition for certification to appeal in accordance with General Statutes § 52-470 (g).³ One of the grounds on which the petitioner sought certification to appeal concerned the fact that the court had dismissed the appeal without affording him "the right to argue in opposition [to the dismissal] after being aware of the proposed grounds for such dismissal ...." The court denied the petition for certification to appeal. This appeal followed.⁴

Beyond arguing that the court abused its discretion in denying his petition for certification to appeal, the sole claim raised on appeal by the petitioner focuses on the propriety of the court's dismissal of the amended petition pursuant to Practice Book § 23-29, following the issuance of the writ and on its own motion, without affording him notice and a right to be heard with respect to the proposed grounds for the dismissal. On January 13, 2021, this court heard oral argument in this appeal. On October 17, 2022, we ordered the parties to file supplemental briefs "addressing the effect, if any, of Brown v. Commissioner of Correction , [supra, 345 Conn. 1, 282 A.3d 959 ], and Boria v. Commissioner of Correction , [supra, 345 Conn. 39, 282 A.3d 433 ], on this appeal, including whether, if the judgment of dismissal is reversed, the habeas court should be directed on remand ‘to first determine whether any grounds exist for it to decline to issue the writ pursuant to Practice Book § 23-24.’ Brown v. Commissioner of Correction , supra, at 17 and n.11, 282 A.3d 959 ; Boria v. Commissioner of Correction , supra, at 43, 282 A.3d 433." The parties have submitted briefs in compliance with our supplemental briefing order.

We first turn to the threshold argument that the court abused its discretion in denying the petition for certification to appeal. Our inquiry is well established. "Faced with the habeas court's denial of certification to appeal, a petitioner's first burden is to demonstrate that the habeas court's ruling constituted an abuse of discretion. ... A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason ... [the] court could resolve the issues [in a different manner] ... or ... the questions are adequate to deserve encouragement to proceed further. ... The required determination may be made on the basis of the record before the habeas court and applicable legal principles. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Crespo v. Commissioner of Correction , 292 Conn. 804, 811, 975 A.2d 42 (2009).

In light of our Supreme Court's decisions in Brown and Boria , we conclude that the issue raised in the petitioner's petition for certification to appeal concerning the right to notice and a right to be heard prior to a dismissal under Practice Book § 23-29 is debatable among jurists of reason, that a court could resolve the issue in a different manner, and that the issue deserves encouragement to proceed further. Accordingly, we conclude that the court's denial of the petition for certification to appeal reflects an abuse of discretion.

Turning to the merits of the appeal, we conclude, as do the parties in their supplemental briefs, that Brown and Boria , both of which address claims similar to the claim before us, not only govern our resolution of the appeal but require a reversal of the judgment of dismissal. In Brown , the court concluded "that [Practice Book] § 23-29 requires the habeas court to provide prior notice of the court's intention to dismiss, on its own motion, a petition that it deems legally deficient and an opportunity...