State v. Simpson ( 2014 )

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STATE OF CONNECTICUT v. BRADLEY D. SIMPSON
(AC 35881)
DiPentima, C. J., and Alvord and Harper, Js.
Argued September 23—officially released November 18, 2014
(Appeal from Superior Court, judicial district of
Hartford, geographical area number thirteen, Hon.
Howard Scheinblum, judge trial referee.)
Peter G. Billings, with whom, on the brief, was Sean
P. Barrett, for the appellant (defendant).
Margaret Gaffney Radionovas, senior assistant
state’s attorney, with whom, on the brief, were Gail P.
Hardy, state’s attorney, and Christopher A. Parakilas,
supervisory assistant state’s attorney, for the appellee
(state).
Opinion
PER CURIAM. ‘‘The three year limitation for the filing
of a petition for a writ of error coram nobis has been
the law in Connecticut for more than 130 years. . . .
More importantly, the three year limitation period is
jurisdictional.’’ (Citations omitted.) State v. Carter, 142
Conn. App. 156, 160, 64 A.3d 366 (2013). The defendant,
Bradley D. Simpson, appeals from the judgment of the
trial court denying his petition for a writ of error coram
nobis.1 Specifically, he argues that the court improperly
refused to hear additional argument and ‘‘abruptly
denied’’ his petition. We conclude that because the peti-
tion was filed more than three years after the defendant
had pleaded guilty and been sentenced, the court lacked
jurisdiction to consider the petition. Therefore we
remand this case with direction to render a judgment
of dismissal.
On February 3, 2006, the defendant pleaded guilty
to robbery in the third degree in violation of General
Statutes § 53a-136 and assault on an elderly person in
the third degree in violation of General Statutes § 53a-
61a. During the plea canvass, the court stated: ‘‘I must
advise you that if you are not a citizen of the United
States, the consequences of your plea could lead to
deportation, exclusion from admission to the United
States, or denial of naturalization.’’ After accepting the
defendant’s guilty plea, the court sentenced him to a
total effective sentence of five years incarceration, sus-
pended after eighteen months and five years of pro-
bation.
On March 21, 2013, the defendant filed a motion to
withdraw his guilty plea. At a hearing held on April
18, 2013, the court noted that the motion had been
withdrawn with prejudice. On June 3, 2013, the defen-
dant filed a motion for a new trial and, in the alternative,
petitioned for a writ of error coram nobis.2 In his accom-
panying memorandum of law, the defendant alleged
that he is a native and citizen of Barbados who lawfully
had entered the United States in April, 1981. He further
claimed that the United States Bureau of Immigration
and Customs Enforcement seized and detained him on
or about January 23, 2013, and commenced removal
proceedings on the basis of his 2006 conviction.
The defendant alleged that his counsel during the
criminal proceedings, Attorney Charles Groce, had not
advised him that he would lose his status as a lawful
permanent resident and would be subject to removal
from the United States as a result of his guilty plea. He
further argued that as a result of Groce’s failure to
advise him of the adverse immigration consequences,
he had received ineffective assistance of counsel and
requested either a new trial or a writ of error coram
nobis. The court denied the defendant’s motion and
petition on July 18, 2013. This appeal followed.
On appeal, the defendant argues that Groce had pro-
vided ineffective assistance of counsel by not informing
him that he ‘‘would inevitably be deported’’ as a conse-
quence of his guilty plea. He further contends that all
other avenues of relief are unavailable. First, the defen-
dant notes that even if permission to file a late appeal
from his guilty plea was granted, his claim of ineffective
assistance of counsel cannot be brought on a direct
appeal. Second, the defendant states that he cannot
satisfy the ‘‘in custody’’ jurisdictional requirement to
bring a petition for a writ of habeas corpus. Thus, the
defendant maintains that he is ‘‘stuck with the conse-
quences of deportation and a writ of error coram nobis
is the only adequate remedy available to the defendant.’’
We conclude that the trial court lacked jurisdiction over
the defendant’s petition for a writ of error coram nobis
because it was filed more than three years after his con-
viction.3
‘‘A writ of error coram nobis is an ancient common-
law remedy which authorized the trial judge, within
three years, to vacate the judgment of the same court
if the party aggrieved by the judgment could present
facts, not appearing in the record, which, if true, would
show that such judgment was void or voidable. . . .
The facts must be unknown at the time of the trial
without fault of the party seeking relief. . . . A writ of
error coram nobis lies only in the unusual situation [in
which] no adequate remedy is provided by law. . . .
Moreover, when habeas corpus affords a proper and
complete remedy the writ of error coram nobis will
not lie.’’ (Citations omitted; internal quotation marks
omitted.) State v. Das, 291 Conn. 356, 370–71, 968 A.2d
367 (2009); see also State v. Brooks, 89 Conn. App. 427,
437–38, 874 A.2d 280 (2005).
In State v. William C., 135 Conn. App. 466, 468–69,
41 A.3d 1205 (2012), we rejected an argument that a
writ of error coram nobis may be initiated at any time.
‘‘[O]ur Supreme Court expressly has indicated that a
writ of error coram nobis can only vacate a judgment
if brought within three years of the date of judgment.
State v. Das, [supra, 291 Conn. 370] (‘[a] writ of error
coram nobis is an ancient common-law remedy which
authorized the trial judge, within three years, to vacate
the judgment of the same court’ [emphasis in original]);
see also State v. Henderson, 259 Conn. 1, 3, 787 A.2d
514 (2002); State v. Grisgraber, 183 Conn. 383, 385, 439
A.2d 377 (1981); Jeffery v. Fitch, 46 Conn. 601, 604
(1879). Because the defendant’s writ of error coram
nobis was untimely, we conclude that the court properly
granted the motion to dismiss filed by the state.’’ State v.
William C., supra, 468–69. More recently, we expressly
held that a trial court lacks jurisdiction to consider a
writ of error coram nobis filed more than three years
after his conviction. State v. Carter, supra, 142 Conn.
App. 160–61.
In the present case, the defendant pleaded guilty on
February 3, 2006, and did not file his petition for a writ
of error coram nobis until June 3, 2013, well outside of
the three year time period. The trial court, therefore,
lacked jurisdiction over the petition for a writ of error
coram nobis and should have dismissed, rather than
denied, the defendant’s petition. See id., 161.
The form of the judgment is improper; the judgment
is reversed and the case is remanded with direction to
render judgment of dismissal.
1
Black’s Law Dictionary defines ‘‘coram nobis’’ as ‘‘[i]n our presence;
before us’’ and explains that ‘‘[t]he essence of the common law remedy of
coram nobis is that it is addressed to the very court which renders the
judgment in which injustice is alleged to have been done, in contrast to
appeals or review directed to another court . . . .’’ Black’s Law Dictionary
(6th Ed. 1990).
2
The defendant does not challenge the denial of his motion for a new
trial in this appeal.
3
Although the trial court did not set forth its reasoning for denying the
petition for a writ of error coram nobis, it is clear from the record that it
was filed outside of the three year limitation period; therefore, we are free
to use the basis to support the judgment of the trial court. See State v.
Carter, supra, 142 Conn. App. 160. Further, we note that the issue of subject
matter jurisdiction may be raised by a party or by the court, sua sponte, at
any time, including the appeal. See Guerra v. State, 150 Conn. App. 68,
74–75, 89 A.3d 1028, cert. denied, 314 Conn. 903, A.3d (2014).