State v. Malone ( 2023 )

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STATE v. MALONE—DISSENT
D’AURIA, J., with whom ROBINSON, C. J., and ECKER,
J., join, dissenting. I disagree with this court’s ruling
denying the defendant’s motion for permission to file
a late appeal. In my view, there is good cause that
justifies permitting the defendant, Erick Malone, to file
a late appeal from the trial court’s denial of his motion to
dismiss the criminal charges against him in a preceding
prosecution after that court accepted the state’s entry
of a nolle prosequi. I believe that the trial court’s ruling
created an objectively reasonable basis for confusion
regarding whether the court was rendering a final judg-
ment when it articulated on the record its skepticism
about the propriety of the nolle, leading the court to
indicate that it was denying the motion to dismiss ‘‘with-
out prejudice.’’ I would grant the defendant’s motion
for permission to file a late appeal and address that
appeal on the merits. Accordingly, I respectfully dissent.
I will assume familiarity with the facts and procedural
history of this case, as detailed in State v. Malone, 346
Conn. 552, A.3d (2023). My disagreement with
the court’s order centers on my determination that the
defendant has demonstrated good cause to file his late
appeal, as required by Practice Book § 60-2 (5), by estab-
lishing that the trial court’s statements can reasonably
be said to have created confusion regarding whether
its denial of his motion to dismiss was a final judgment.
See Georges v. OB-GYN Services, P.C., 335 Conn. 669,
691, 240 A.3d 249 (2020) (‘‘an objectively reasonable
mistake of law may constitute good cause for filing
a late appeal’’). As I explained in my concurring and
dissenting opinion in Georges, ‘‘an objectively reason-
able basis for confusion, uncertainty or mistake about
when the appeal period has run, or whether the appeal
period has been tolled, must weigh heavily in an appel-
late court’s determination of whether ‘good cause’ justi-
fies permitting a late appeal.’’ Id., 706 (D’Auria, J.,
concurring in part and dissenting in part).
The events that transpired in the present case were,
in my view, sufficiently susceptible to confusion as to
constitute ‘‘good cause’’ and to justify the defendant’s
late appeal. Specifically, the trial court explicitly denied
the defendant’s motion to dismiss ‘‘without prejudice.’’
Although it is settled law that the entry of a nolle termi-
nates a prosecution; see State v. Smith, 289 Conn. 598,
611, 960 A.2d 993 (2008); and that the trial court’s denial
of a defendant’s motion to dismiss after accepting the
nolle constitutes a final judgment for purposes of appeal;
see State v. Lloyd, 185 Conn. 199, 208, 440 A.2d 867(1981); from my review of case law, it does not appear
commonplace for a trial court to explicitly include the
phrase ‘‘without prejudice’’ when denying a defendant’s
motion to dismiss criminal charges after the acceptance
of a nolle.1 See State v. Smith, supra, 611–12. See gener-
ally State v. Winer, 286 Conn 666, 945 A.2d 430 (2008);
State v. Herring, 209 Conn. 52, 547 A.2d 6 (1988); State
v. Lloyd, supra, 199. By definition, the phrase ‘‘without
prejudice’’ means ‘‘[w]ithout loss of any rights’’ and ‘‘in
a way that does not harm or cancel the legal rights or
privileges of a party . . . .’’ Black’s Law Dictionary
(11th Ed. 2019) p. 1919. In other words, when a motion
is denied without prejudice, the ruling implies that the
party may raise that claim again at a later time. In fact,
that is precisely what the trial court said after its ruling:
‘‘[S]o you can raise this again, and that’s where we’ll
stand.’’ Given the trial court’s statements in accepting
the state’s nolle under the missing witness statute, Gen-
eral Statutes § 54-56b, and in denying the defendant’s
motion to dismiss, it is not obvious to me when that
later time would be.
Even if the trial court’s ‘‘without prejudice’’ remark
did not itself create confusion, the court went on to
state that, if ‘‘this case is reinstituted at some later point,
I think there are some significant issues as to whether
or not that should be allowed . . . .’’ Here, too, it is
not precisely clear what the court was referring to in
this statement, but when the prosecutor then indicated
that, ‘‘at this point, we have no leads [to locate the
missing witnesses] . . . and [we need to] see if we can
find any other avenues,’’ the court responded, stating
that ‘‘there are a few issues we’re all concerned about.
. . . [I]f you, at some later date, come up with wit-
nesses, particularly in the face of a speedy trial and all
the proceedings to this point, there’s some real issues,
but that’s where I’m leaving it right now.’’ I believe it
was objectively reasonable to interpret Judge Roland
D. Fasano’s ruling to mean that, if a second prosecution
was brought, the defendant would be able to challenge,
among other things, whether the reasons the state
offered in support of the material witness nolle were
pretextual on the grounds that the missing witnesses
were not material and that the state was merely looking
for more time to develop its case, in contravention of
his speedy trial rights.
Indeed, the defendant attempted to ‘‘raise . . .
again’’ the ‘‘significant’’ and ‘‘real’’ issues that Judge
Fasano appeared to be troubled by, ‘‘particularly in the
face of a speedy trial [motion],’’ when the defendant
moved to dismiss the second prosecution. The defen-
dant claimed that the state had violated his rights to a
speedy trial not only because the missing witnesses
from the first prosecution were not material, but also
because the state used the nolle to extend the time to
develop its case, intentionally delaying the trial. How-
ever, by the time the defendant’s second motion to
dismiss was heard,2 a different judge, Judge Frank A.
Iannotti, was presiding over the defendant’s case, and
he denied the second motion to dismiss, explaining that,
‘‘in terminating the first prosecution by accepting the
nolle prosequi, Judge Fasano was entitled to rely on
the state’s representations that there were two material
witnesses who had disappeared.’’ State v. Malone, supra,
346 Conn. 558. Whether this ruling was legally correct
is not the point at this stage in the proceedings. At this
juncture, we are asked to decide only whether to grant
the defendant’s motion for permission to file a late
appeal from Judge Fasano’s ruling. Objectively speak-
ing, Judge Iannotti’s ruling does not plainly reflect the
sort of review of the ‘‘significant issues’’ Judge Fasano
had observed to attend the state’s nolle of the first
prosecution when Judge Fasano denied the defendant’s
first motion to dismiss ‘‘without prejudice.’’
As a result, I believe that Judge Fasano’s statement
regarding ‘‘significant issues,’’ coupled with his explicit
ruling that the defendant’s motion was denied without
prejudice, created an ‘‘objectively reasonable basis for
confusion’’; Georges v. OB-GYN Services, P.C., supra,
335 Conn. 706 (D’Auria, J., concurring in part and dis-
senting in part); regarding whether the defendant could
challenge the entry of the nolle at a future time and
implied that the trial court had continuing jurisdiction
over the first prosecution. Therefore, I would grant the
defendant’s motion for permission to file a late appeal,
and, thus, I believe this court should address the merits
of the defendant’s appeal.3
Accordingly, I respectfully dissent.
1
Before the judges of the Superior Court amended the rules of practice
in 1987, the rules required the trial court to indicate when granting a motion
to dismiss whether that dismissal was with or without prejudice. See Practice
Book (1986) § 819 (‘‘[i]f the judicial authority grants a motion to dismiss,
he shall specify whether the dismissal is with or without prejudice’’). It
appears that this rule was applied to orders granting motions to dismiss
filed in response to the state’s entering a nolle prosequi. See State v. Talton,
209 Conn. 133, 136–38, 547 A.2d 543 (1988). In Talton, however, this court
held that the now repealed § 819 did not apply to these kinds of rulings
because the granting of such a motion necessarily must be with prejudice.
Id., 140–42. Moreover, even during the time § 819 was applied to the granting
of these kinds of motions before this court’s holding in Talton, no such rule
existed that we can locate for the denial of a motion to dismiss, let alone
a denial of a motion to dismiss filed in response to the court’s acceptance
of a nolle prosequi.
2
In the meantime, the defendant had to retain substitute private counsel
in lieu of Attorney Tara L. Knight for the second prosecution. Substitute
counsel then had to withdraw from the case, and the defendant then applied
for and was granted a public defender to represent him.
3
Because the majority does not reach the merits of the defendant’s appeal,
neither do I. See Georges v. OB-GYN Services, P.C., supra, 335 Conn. 697(D’Auria, J., concurring in part and dissenting in part). Nevertheless, as to
the defendant’s speedy trial claim, I note that, although the first prosecution
is terminated, that does not mean he cannot raise a speedy trial claim on
appeal from the second prosecution in the event of his conviction. And, if
he does, nothing prevents him from arguing that the state’s actions in the
first prosecution should inform any appellate review of the rejection of his
speedy trial claim in the second prosecution. However, I express no opinion
about the strength of such an argument.