Johnson v. Commissioner of Correction ( 2014 )

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ANDRE JOHNSON v. COMMISSIONER
OF CORRECTION
(AC 35368)
Beach, Prescott and West, Js.
Argued September 24—officially released December 2, 2014
(Appeal from Superior Court, judicial district of
Tolland, Newson, J.)
Natalie Olmstead, assigned counsel, for the appel-
lant (petitioner).
Rita M. Shair, senior assistant state’s attorney, with
whom were Michael Dearington, state’s attorney, and,
on the brief, David Clifton, deputy assistant state’s
attorney, for the appellee (respondent).
Opinion
PRESCOTT, J. The petitioner, Andre Johnson,
appeals from the judgment of the habeas court denying
his amended petition for a writ of habeas corpus. On
appeal, the petitioner claims that the habeas court
improperly rejected his claims that (1) his trial counsel
rendered ineffective assistance because he did not
object to the state’s prosecuting him on a charge upon
which the state had entered a nolle prosequi1 and not
refiled, and (2) his appellate counsel rendered ineffec-
tive assistance because he did not raise the argument on
appeal that the conviction stemmed from the unlawful
prosecution of a case that had been nolled. We conclude
that the petitioner’s claim that he was prosecuted on
a nolled charge is without merit, and that his trial and
appellate counsel therefore did not render ineffective
assistance by failing to challenge the prosecution and
conviction on that ground. Accordingly, we affirm the
judgment of the habeas court.
The following facts and procedural history are rele-
vant to this appeal. The petitioner was charged in
Docket No. CR-99-479443 (443) with assault in the first
degree in connection with the shooting of another indi-
vidual. Following the death of the victim, the state
charged the petitioner with the offense of murder under
a separate docket number, CR-99-479860 (860).2 At a
subsequent bond hearing for the petitioner, the prosecu-
tor, the petitioner’s attorney, William Dow, and the
court discussed whether it was necessary for the state
to continue prosecuting the petitioner under both
docket numbers. That discussion proceeded as follows:
‘‘The Court: May I see the file, please? There’s two
files sent in. Is this basically one—
‘‘[The Prosecutor]: It is, Judge. What happened was,
[the petitioner] was originally arrested on the charge
of assault in the first degree, and subsequent to his
initial arrest the victim in the original assault in the
first degree matter died, so he was then charged with
the crime of murder, and that was at his transfer today
and today is his first appearance on that matter.
‘‘The Court: Is the second file viable for any reason
at this point?
‘‘[The Prosecutor]: I don’t see any reason why it
would be at this point.
‘‘The Court: Safe to say it should be dismissed in view
of the current charges pending?
‘‘[The Prosecutor]: I think it should be.
‘‘[Attorney Dow]: No objection.
‘‘The Court: All right. Just for the record, we’re talking
about the assault one file.
‘‘[The Prosecutor]: Well, Judge, if I might just be heard
before Your Honor does dismiss that on the record. My
understanding is that this [petitioner] originally gave a
statement to the New Haven police in conjunction with
that assault in the first degree file, and I believe there
was also some evidence that was seized in connection
with his arrest on assault [in the] first degree. I believe
there was a gun and shell casings and ammunition.
‘‘The Court: Basically, it’s no different than filing a
sub information charging murder.
‘‘[The Prosecutor]: Right.
‘‘The Court: Is your concern with a dismissal that
ultimately materials will be destroyed?
‘‘[The Prosecutor]: Or—that is part of it, yes, sir.
‘‘The Court: Would you rather simply file a sub with
one file?
‘‘[The Prosecutor]: Yes, the state will do that.
‘‘The Court: No action need be taken at this moment,
then. You can do it either way if that’s your concern,
but it’s my understanding, as far as bond, I should be
considering one incident.
‘‘[Attorney Dow]: One file. I think we both agree
on that.’’
Almost two months later, the prosecutor, Attorney
Dow, and the court again discussed the status of the
charges pending against the petitioner. The colloquy
between the parties and the court occurred as follows:
‘‘The Court: . . . The other file—is there a second
file?
‘‘[The Prosecutor]: Judge, the—as you are aware, and
it was alluded to by Mr. Dow in some of his questions,
the [petitioner] was originally arrested on an assault in
the first degree charge. What I have done with regard
to that file, that docket, is, I filed a substituted informa-
tion in that file charging him with murder in that file.
‘‘The Court: All right. So, is there a second file for
some reason?
‘‘The Clerk: Yes, there is.
‘‘The Court: All right, but basically we’re talking about
the one charge of murder.
‘‘[The Prosecutor]: The one charge.
‘‘The Court: And the other file, any charges contained
in that file I assume are nolled?
‘‘[The Prosecutor]: Yes.
‘‘The Court: For administrative purposes.
‘‘[The Prosecutor]: Yes. It makes no sense to have
two docket numbers for one file. . . .
‘‘The Clerk: Judge, for the record, could Mr. State’s
Attorney verify which docket number he will be uti-
lizing?
‘‘[The Prosecutor]: The correct docket number is
going to be the first docket number. That is [443]. The
other file is [860], was just—was another file that was
opened after the—[the victim] died, but there’s no
necessity to keep that open, so the state would nolle
that file, and the original file will stand with the substi-
tuted information.
‘‘The Clerk: And you’ll be filing a substitute—
‘‘[The Prosecutor]: It should already be in the file.
It’s probably—it was probably misplaced in the other
docket number. There was a substituted information
filed. Do you have that in the file?
‘‘The Clerk: I do not.
‘‘[The Prosecutor]: I’ll double-check it. It will be filed.3
‘‘The Court: All right. All right. Thank you, gentlemen.
‘‘[Attorney Dow]: Thank you, Your Honor.
‘‘[The Prosecutor]: Thank you, Judge.’’ (Footnote
added.)
The petitioner was ultimately acquitted of murder,
but the jury found him guilty of the lesser included
offense of manslaughter in the first degree with a fire-
arm in violation of General Statutes §§ 53a-55a and 53a-
55 (a) (3).4 The court imposed a total effective sentence
of twenty years incarceration. The petitioner subse-
quently appealed from his conviction, which this court
affirmed in State v. Johnson, 71 Conn. App. 272, 801
A.2d 890, cert. denied, 261 Conn. 939, 808 A.2d 1133
(2002), cert. denied, 537 U.S. 1207, 123 S. Ct. 1286, 154
L. Ed. 2d 1052 (2003).
Six years after his appeal, the petitioner discovered
that several documents in his court file bore Docket
No. 860. On the basis of that discovery, he concluded
that he had been illegally prosecuted for the nolled
murder charge filed in Docket No. 860, rather than the
murder charge filed in Docket No. 443. He subsequently
filed a petition for a writ of habeas corpus,5 alleging
that his trial counsel had provided him with ineffective
assistance because he did not object to the petitioner’s
prosecution on a charge that the state had nolled. He
further alleged that his appellate counsel had rendered
ineffective assistance because he did not raise on appeal
the petitioner’s purportedly unlawful prosecution as a
basis for setting aside the conviction.6
The habeas court denied the petition, concluding,
first, that the petitioner had failed to prove that either
of the two murder charges filed by the state had been
nolled before the end of the petitioner’s trial, and, sec-
ond, that the petitioner could not have suffered any
prejudice because any mistaken reference to Docket
No. 860 on certain documents would have constituted
a circumstantial defect that would not have deprived the
trial court of jurisdiction. The petitioner subsequently
petitioned for certification to appeal from the habeas
court’s judgment, which the habeas court granted. This
appeal followed. Additional facts will be set forth as
necessary.
The petitioner claims on appeal that the habeas court
improperly concluded that he had failed to prove that
the murder charge filed in Docket No. 860 had been
nolled by the state before the end of his trial. He also
claims that because that charge had, in fact, been nolled
by the state, the failure of his trial counsel and appellate
counsel to challenge his prosecution and conviction on
that ground constituted ineffective assistance of
counsel.
We assume, without deciding, that the habeas court
improperly concluded, on the basis of the record before
it, that the state had not nolled the murder charge filed
under Docket No. 860 prior to the end of the petitioner’s
trial. Nevertheless, for reasons we now discuss, we
agree with the habeas court that the mistaken use of
that docket number during and subsequent to the peti-
tioner’s trial constituted a nonjurisdictional, circum-
stantial defect. Consequently, the habeas court properly
concluded that the petitioner suffered no prejudice
because of his trial and appellate counsels’ failure to
challenge his prosecution and conviction on that basis.
We begin our analysis by setting forth the applicable
standard of review. ‘‘A habeas petitioner can prevail
on a constitutional claim of ineffective assistance of
counsel [only if he can] establish both (1) deficient
performance, and (2) actual prejudice. . . . For inef-
fectiveness claims resulting from guilty verdicts, we
apply the two-pronged standard set forth in Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984) . . . . To satisfy the performance
prong, the petitioner must show that counsel’s repre-
sentation fell below an objective standard of reason-
ableness. . . . A reviewing court must view counsel’s
conduct with a strong presumption that it falls within
the wide range of reasonable professional assistance.
. . . To satisfy the prejudice prong for ineffective assis-
tance claims resulting from guilty verdicts, the peti-
tioner must demonstrate that there exists a reasonable
probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.’’
(Internal quotation marks omitted.) Blake v. Commis-
sioner of Correction, 150 Conn. App. 692, 697–98, 91
A.3d 535, cert. denied, 312 Conn. 923, 94 A.3d 1202
(2014).
‘‘In a habeas appeal, this court cannot disturb the
underlying facts found by the habeas court unless they
are clearly erroneous, but our review of whether the
facts as found by the habeas court constituted a viola-
tion of the petitioner’s constitutional right to effective
assistance of counsel is plenary. . . . A court’s finding
of fact is clearly erroneous and its conclusions drawn
from that finding lack sufficient evidence when there
is no evidence in the record to support [the court’s
finding of fact] . . . or when although there is evidence
to support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mis-
take has been committed.’’ (Citation omitted; internal
quotation marks omitted.) Person v. Commissioner of
Correction, 146 Conn. App. 477, 480, 78 A.3d 213, cert.
denied, 310 Conn. 960, 82 A.3d 627 (2013).
The petitioner’s argument that he was prosecuted for
the murder charge previously nolled by the state in
Docket No. 860 rests largely on the fact that several
documents contained in the court file during the pen-
dency of his prosecution were marked with that docket
number. For instance, the habeas court found that the
transcript from the first day of trial, the short form
information, and the petitioner’s mittimuses, were all
labeled with Docket No. 860. It also appears that the
judgment of conviction against the petitioner was
entered under Docket No. 860, as the respondent, the
Commissioner of Correction, has admitted the petition-
er’s allegation that he is ‘‘currently in the custody of
[the] respondent pursuant to the judgment in [Docket
No. 860].’’
Neither party disputes, however, that the use of
Docket No. 860 on these documents directly conflicts
with the established procedural history of this case. In
fact, both parties readily acknowledge that the prosecu-
tor affirmed unequivocally on several occasions before
the petitioner’s trial that the state was prosecuting the
petitioner under the substitute information charging
him with murder in Docket No. 443, and that the murder
charge filed in Docket No. 860 was nolled. In light of
this uncontroverted evidence of the state’s intent, and
the parties’ mutual understanding of it, we must con-
clude, as the habeas court did, that the references to
Docket No. 860 on these documents during and after
the petitioner’s trial were mistaken. Consequently, we
must determine whether those errors were of such a
kind that the petitioner’s trial and appellate counsel can
be considered to have been ineffective for failing to
recognize and raise them as a basis for challenging his
prosecution and conviction.
‘‘Defective pleadings are broken down into two cate-
gories: circumstantial defects, which are subject to cor-
rection under [General Statutes] § 52-123, and
substantive defects, which are not. . . . Both our case
law and our legislature have expressed clear policy
reasons for eschewing dismissals on technical or cir-
cumstantial grounds. Section 52-123 provides: No writ,
pleading, judgment or any kind of proceeding in court
or course of justice shall be abated, suspended, set
aside or reversed for any kind of circumstantial errors,
mistakes or defects, if the person and the cause may
be rightly understood and intended by the court. Our
Supreme Court has explained that . . . § 52-123
replaces the common law rule that deprived courts
of subject matter jurisdiction whenever there was a
misnomer . . . in an original writ, summons, or com-
plaint. . . . When a misnomer does not result in preju-
dice to a party, the defect in the writ is circumstantial
error.’’ (Citation omitted; internal quotation marks omit-
ted.) Colon v. State, 129 Conn. App. 59, 64, 19 A.3d
699 (2011).
‘‘Our Supreme Court in Andover Ltd. Partnership I
v. Board of Tax Review, [232 Conn. 392, 397, 655 A.2d
759 (1995)], reiterated the test for determining whether
a defect is circumstantial under § 52-123. First, the court
looked to whether the party intended to reference the
proper party or whether it had erroneously misdirected
its action. . . . Second, [the court] considered three
factors to determine whether the error was a misnomer
and therefore a circumstantial defect under § 52-123:
(1) whether the proper defendant had actual notice of
the institution of the action; (2) whether the proper
defendant knew or should have known that [he] was
the intended defendant in the action; and (3) whether
the proper defendant was in any way misled to [his]
prejudice. . . . Although Andover Ltd. Partnership I
is a civil case, the language of § 52-123 itself does not
limit the statute’s applicability to civil cases.’’ (Citations
omitted; internal quotation marks omitted.) State v. Gil-
lespie, 92 Conn. App. 143, 150–51, 884 A.2d 419 (2005).
Applying the test set forth in Andover Ltd. Partner-
ship I to the facts of the present case, we conclude
that any reference to Docket No. 860 during the petition-
er’s trial was a nonjurisdictional, circumstantial defect.
There is no dispute that the state both intended to and
consistently did reference the proper party in prosecut-
ing the petitioner for the victim’s death. Nor is it dis-
puted that the petitioner, who appeared at trial, and was
represented by counsel throughout, had actual notice of
the state’s charges against him. Moreover, the record
establishes that the petitioner knew at all times that he
was the intended defendant. And because the factual
basis underlying each of the two murder charges was
identical, the petitioner cannot reasonably claim that
he was misled to his prejudice.
Our conclusion accords with our case law, which has
consistently held that the use of an incorrect docket
number is a circumstantial defect. See, e.g., Plasil v.
Tableman, 223 Conn. 68, 77, 612 A.2d 763 (1992) (use
of original docket number in re-served process did not
create jurisdictional defect because ‘‘the trial court
could have ordered the clerk to assign a new docket
number to the re-served process’’); Harris v. Commis-
sioner of Correction, 107 Conn. App. 833, 843–44, 947
A.2d 7 (use of incorrect docket number during sentenc-
ing was not substantive defect), cert. denied, 288 Conn.
908, 953 A.2d 652 (2008); First Federal Savings & Loan
Assn. of Rochester v. Pellechia, 31 Conn. App. 260, 266,
624 A.2d 395 (‘‘[t]he scrivener’s error or misstatement
of a single digit of the docket number in this case was
a circumstantial defect and does not abate the plaintiff’s
claim’’), cert. denied, 227 Conn. 923, 632 A.2d 701 (1993).
In one case, State v. Gillespie, supra, 92 Conn. App.
148–53, we held that the trial court maintained subject
matter jurisdiction over the recommitment proceedings
of an acquittee even though those proceedings were
conducted under the docket number of an expired case.
Because we find Gillespie particularly instructive, if
not controlling, in resolving the petitioner’s claims, we
review the facts and analysis underlying its holding.
In that case, Gregory Gillespie was charged with
assault in the first degree in connection with the shoot-
ing of another individual (assault case). Id., 145. He
was subsequently acquitted of that charge by reason of
mental disease or defect, and committed to the custody
of the Psychiatric Security Review Board. Id. While
on conditional release from that commitment, he was
charged with murder after fatally shooting a former
girlfriend (murder case). Id. He was acquitted of that
charge by reason of mental disease or defect, and com-
mitted in that murder case to the custody of the Psychi-
atric Security Review Board for twenty-five years under
General Statutes § 17a-602. Id.
Shortly before Gillespie’s term of commitment in the
murder case expired, the state filed a petition for recom-
mitment under General Statutes § 17a-593. Id. The state
filed that petition under the docket number of the
assault case, however, and neither the state nor Gilles-
pie brought the error to the court’s attention at the
time. Id.
Gillespie moved to dismiss the state’s petition on
constitutional grounds. Id., 146. The court granted his
motion, but stayed its ruling. Id. While the case was on
appeal, the state moved to open the court’s judgment
of dismissal in order to correct the incorrect docket
number. Id. Gillespie again moved to dismiss the state’s
petition, this time arguing that the state’s use of the
docket number from the expired assault case deprived
the court of subject matter jurisdiction. Id. The trial
court granted the state’s motion to open its prior judg-
ment to correct the docket number, and Gillespie
appealed. Id.
On appeal to this court, we held that the use of the
docket number from the assault case during Gillespie’s
recommitment proceedings constituted a circumstan-
tial defect under § 52-123 and did not deprive the trial
court of jurisdiction. In reaching that conclusion, we
observed that ‘‘the state intended to reference the
acquittee with regard to the [murder] case. It is not in
dispute that as the acquittee’s release date approached
. . . the state inadvertently filed its petition under . . .
the docket number assigned to the [assault] case. How-
ever, the stipulation of facts makes it crystal clear that it
was the acquittee whom the state intended to reference.
The caption title on the court’s memorandum of deci-
sion . . . represented the acquittee by his name, Greg-
ory Gillespie, and the court found facts concerning the
. . . murder case based on the stipulation entered into
by the acquittee. Next, in applying the three factors set
forth in Andover Ltd. Partnership I by our Supreme
Court to determine whether the defect was circumstan-
tial, we conclude that they are satisfied. The acquittee
had actual knowledge of the institution of the action,
knew that the murder case, not the assault case, was
the subject matter of the action and was not in any way
misled to his prejudice. First, it is clear that the acquittee
had actual knowledge of the institution of the action
because in response to the state’s petition, he filed a
motion to dismiss specifically mentioning the murder
charge and arguing that the state’s petition for recom-
mitment was unconstitutional pursuant to § 17a-593 (c).
Although the acquittee himself used the incorrect
[assault] case docket number in his caption to this
motion, both he and the state understood what was
substantively before the court. Second, it is also clear
that the acquittee knew that the murder case was the
subject matter of the action because . . . he entered
into a stipulation of facts, which concerned facts of the
[murder] case and made no mention of the unrelated
[assault] case. At a hearing . . . the acquittee and the
state argued the merits of the [murder] case. In its
memorandum of decision . . . the court stated: The
only viable file that was before the court . . . was the
file that charged murder . . . . All comments of the
parties at the hearing concerned only the subject matter
of the murder charged file. It is clear from the stipulation
of facts and the argument of the acquittee’s counsel
. . . that the acquittee knew not only that the state’s
petition referenced him, but also knew that it concerned
the [murder] case. We therefore determine that the
acquittee was not misled and that there was no preju-
dice, and conclude that the three part test in Andover
Ltd. Partnership I was satisfied.’’ (Emphasis in original;
footnote omitted; internal quotation marks omitted.)
Id., 151–52.
Like the use of a docket number from an ‘‘expired’’
case in Gillespie, the present case involves the inadver-
tent use of an incorrect docket number from a file
that is no longer active because the charges have been
nolled. Moreover, the petitioner here, like the acquittee
in Gillespie, was plainly informed as to which of the
two files on which the state was proceeding to trial.
Both informations charged the petitioner with the same
offense based on the same facts, and he and the state
thus clearly ‘‘understood what was substantively before
the court’’; id.; as the acquittee in Gillespie did. We
therefore conclude, as we did in Gillespie, that the use
of the wrong docket number on some documents was
inadvertent and nonprejudicial, and constituted a cir-
cumstantial defect under § 52-123.
The petitioner attempts to distinguish the present
case from Gillespie by arguing that the acquittee in
Gillespie was not ‘‘held’’ on an incorrect docket num-
ber, and that ‘‘[i]n this case, the petitioner is confined
based on a docket that was nolled by the state.’’
(Emphasis in original.) He fails to explain why this
distinction is meaningful to our analysis, however, and
we can discern no basis as to why a circumstantial
defect would become a substantive defect simply
because he was subsequently incarcerated. Regardless
of which docket number is referenced on documents
relating to his incarceration, the petitioner was tried,
convicted, and sentenced as a result of his prosecution
under Docket No. 443. The use of Docket No. 860 was
a circumstantial defect, and, therefore, the proper rem-
edy is not to vacate the underlying conviction, but to
correct the records so that they properly reflect the
correct docket number. See State v. Gillespie, supra,
92 Conn. App. 153 (‘‘[because] the use of an incorrect
docket number in this case was a circumstantial defect
that was curable pursuant to § 52-123, [the court] prop-
erly granted the motion to open to correct the docket
number to conform to the proper docket number’’); see
also Plasil v. Tableman, supra, 223 Conn. 76–77 (‘‘even
if the assignment of a new docket number were neces-
sary for the orderly maintenance of the trial court’s
computer files, as urged by the defendants, the plaintiff
correctly observes that the administrative defect in this
case could have been cured without dissolving the pre-
judgment remedies’’).7
Because any reference to Docket No. 860 during and
after the petitioner’s trial qualified as a circumstantial
defect under § 52-123, any attempt to challenge his pros-
ecution and subsequent conviction on that ground
would have inevitably failed. Thus, the petitioner’s trial
and appellate counsel were not ineffective for failing
to raise that issue during his trial or on appeal, and the
habeas court properly determined that the petitioner
could not prevail on his sixth amendment claim under
the framework set forth in Strickland v. Washington,
supra, 466 U.S. 687.
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘The state’s right to terminate a prosecution by the entry of a nolle
prosequi has its origins in practices recognized at common law. The effect
of a nolle prosequi is to end pending proceedings without an acquittal and
without placing the defendant in jeopardy.’’ State v. Lloyd, 185 Conn. 199,
201, 440 A.2d 867 (1981).
2
The state also alleged, in a part B information, that the petitioner had
committed a class A, B or C felony with a firearm in violation of General
Statutes § 53-202k.
3
The habeas court found that ‘‘[t]he long form information charging the
petitioner with murder does not contain a docket number, but it is dated
June 30, 1999, which is consistent with [the prosecutor’s] testimony at the
habeas trial that he filed a substituted information in the first file, [Docket
No. 443], shortly before the probable cause hearing held on July 8, 1999.’’
4
With respect to the part B information, the petitioner waived his right
to have the jury determine whether he committed a class A, B or C felony
with a firearm in violation of General Statutes § 53-202k. See footnote 2 of
this opinion. The trial court, Thompson, J., subsequently found that he did.
5
The petitioner filed his initial petition on August 26, 2010. He subsequently
filed an amended petition on February 16, 2012.
6
In the same petition, he also raised the claim that he had been deprived
of his right to a fair trial as a result of prosecutorial impropriety, but subse-
quently withdrew that claim during his habeas trial.
7
The petitioner also urges us to adopt the bright line rule set forth by
the Supreme Court of South Carolina in Mackey v. State, 357 S.C. 666, 669,
595 S.E.2d 241 (2004), that a prosecution that is based on a nolled charge
must be dismissed if the defendant has not otherwise been reindicted.
In Mackey, the petitioner was indicted for grand larceny, resisting arrest,
and first degree burglary. Id., 667. The prosecutor subsequently nolled those
indictments, and never reindicted the petitioner. Id. Nevertheless, the peti-
tioner was tried and convicted of those charges, and thereafter filed a
petition for postconviction relief. Id. The Supreme Court of South Carolina
concluded that the nolle effectively extinguished the state’s prosecution of
the petitioner on those charges, and the state was therefore required to
reindict the petitioner if it intended to try him. Id., 668–69. Because the
petitioner was not reindicted, however, the court vacated his conviction.
Id., 669.
Unlike the petitioner in Mackey, the petitioner in the present case was
effectively ‘‘reindicted’’ by way of the substitute information filed in Docket
No. 443, which remained active throughout the petitioner’s trial. Thus, a
charge of murder was pending against the petitioner at all pertinent times,
and the holding of Mackey would not benefit the petitioner, even if we were
to adopt it.