State v. Dayton , 176 Conn. App. 858 ( 2017 )

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STATE OF CONNECTICUT v. STACEY DAYTON
(AC 38860)
DiPentima, C. J., and Beach and Sheridan, Js.*
Syllabus
Convicted, on pleas of nolo contendere, of the crime of operating a motor
vehicle while under the influence of intoxicating liquor or drugs, and
with previously having been convicted of that offense, the defendant
appealed to this court, challenging, inter alia, the trial court’s denial of
his motion to dismiss. After the trial court had accepted the defendant’s
pleas and made a finding of guilty, at the defendant’s request the sentenc-
ing was continued to a later date. The defendant failed to appear at
sentencing and the court ordered his rearrest. Approximately eight years
later, the court vacated the rearrest order and the case was ‘‘closed
out’’ pursuant to statute (§ 14-140 [b]). Ten years later, the state entered
a nolle prosequi as to the defendant’s case, and the court noted the
nolle for the record. More than thirteen months after the nolle had been
entered, the state requested that the case be redocketed. The defendant
filed a motion to dismiss, to which the state objected, and, after a hearing,
the court denied the motion, finding that the state had mistakenly nolled
the case. The court, relying on the previously accepted plea canvass,
proceeded to sentencing, and this appeal followed. Held:
1. The state could not prevail on its claim that the defendant’s appeal
should be dismissed on the basis of the common-law fugitive felon
disentitlement doctrine, which allows an appellate court to dismiss the
appeal of a party who flees subsequent to the felony conviction from
which he appeals; the appellate process had not been prejudiced, due
to the passage of time, as a result of the defendant’s failure to appear
at his initial sentencing proceeding, and, under these facts and circum-
stances, dismissal of the appeal under the fugitive felon disentitlement
doctrine was not warranted.
2. The trial court improperly denied the defendant’s motion to dismiss; that
court lacked jurisdiction over the case after the state entered the nolle
and failed to initiate a new prosecution, and because more than thirteen
months had passed since the entry of the nolle, the records of the case
were subject to erasure by operation of law; moreover, the court, which
found that the state had mistakenly nolled the case, cited no authority
to support its decision to invalidate a nolle that had been entered more
than thirteen months earlier, and the state’s claim that the court merely
corrected a clerical error when it denied the motion to dismiss was
unavailing, as the effect of the state’s decision to nolle the case resulted
in the termination of the proceedings against the defendant, and to
subsequently revive the charge was a matter of substance, not a mere
transcription or calculation clerical error.
Argued April 24—officially released October 3, 2017
Procedural History
Two part information charging the defendant, in the
first part, with the crimes of operating a motor vehicle
while under the influence of intoxicating liquor or drugs
and evading responsibility, and with the infractions of
following too closely, failure to comply with emission
inspection, and failure to use a seat safety belt, and, in
the second part, with having previously been convicted
of operating a motor vehicle while under the influence
of intoxicating liquor or drugs, brought to the Superior
Court in the judicial district of Fairfield, geographical
area number two, where the defendant was presented
to the court, Leavitt, J., on pleas of nolo contendere
to the charge of operating a motor vehicle while under
the influence of intoxicating liquor or drugs in the first
part of the information and to the second part of the
information; thereafter, the state entered a nolle prose-
qui as to evading responsibility, following too closely,
failure to comply with emission inspection, and failure
to use a seat safety belt; subsequently, the state entered
a nolle prosequi as to all of the charges; thereafter, the
court, E. Richards, J., denied the defendant’s motion
to dismiss and rendered judgment in accordance with
the pleas, from which the defendant appealed to this
court. Reversed; judgment directed.
Pamela S. Nagy, assistant public defender, for the
appellant (defendant).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were John C. Smriga, state’s attor-
ney, and Margaret E. Kelley, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Stacey Dayton,
appeals from the judgment of conviction, rendered after
a plea of nolo contendere, of operating a motor vehicle
while under the influence of intoxicating liquor or drugs
in violation of General Statutes (Rev. to 1995) § 14-
227a.1 On appeal, the defendant claims that the court
improperly (1) denied his motion to dismiss, and (2)
accepted his plea when it was not knowingly, intelli-
gently or voluntarily made. The state disagrees with the
defendant on the merits of this appeal and also contends
that this appeal is subject to dismissal pursuant to the
fugitive felon disentitlement doctrine. We disagree that
this appeal should be dismissed and agree with the
defendant’s first claim. Accordingly, we reverse the
judgment of the trial court.2
The following facts and procedural history are rele-
vant to the resolution of this appeal. On November 29,
1995, the defendant entered a plea of nolo contendere
to the charge of operating a motor vehicle under the
influence of intoxicating liquor or drugs. General Stat-
utes (Rev. to 1995) § 14-227a; see footnote 1 of this
opinion. At that proceeding, the court found that the
plea was ‘‘voluntarily and understandingly made with
the assistance of competent counsel. There’s a factual
basis for the plea. The plea is accepted. Finding of
guilty.’’ Pursuant to a plea agreement, the defendant
would receive a sentence of one year incarceration,
execution suspended after ten days, two years of proba-
tion and certain special conditions. This sentence was
not imposed immediately, as the court acquiesced to
the defendant’s request to continue the matter.
On January 3, 1996, the defendant failed to appear at
sentencing. The court ordered the defendant rearrested
and set a cash bond in the amount of $500. No further
actions occurred in the defendant’s case for nearly eight
and one-half years. In 2004, the court vacated the rear-
rest order, and the case was ‘‘closed out’’ pursuant to
General Statutes § 14-140 (b).3 Ten years later, in 2014,
the state entered a nolle prosequi as to the defendant’s
case.4 The court noted the nolle prosequi for the record.
On September 4, 2015, more than thirteen months
after the nolle had been entered, the state requested
that the defendant’s case ‘‘be brought back to court.’’
The prosecutor represented to the court that notice
had been sent to the defendant’s last known address
informing him of the proceeding, but that he was not
present. The court agreed to the prosecutor’s request to
have a bail commissioner’s letter sent to the defendant.
On October 29, 2015, the defendant filed a motion
to dismiss pursuant to General Statutes § 54-565 and
Practice Book § 41-8 (4).6 The state filed a motion in
opposition on November 9, 2015.7 The court held a
hearing on December 3, 2015, at which time it rendered
an oral decision denying the defendant’s motion. Specif-
ically, it stated: ‘‘The court’s feeling is that under the
circumstances in this case where a plea has been can-
vassed, accepted by the court, where there was a failure
to appear at the time of sentencing, where a rearrest
was ordered, but the subsequent nolle in this case was
a mistake and therefore not valid. And therefore I am
going to find that the motion to dismiss is not proper
and I’m going to deny it at this time. . . . I think the
court has jurisdiction because I feel that . . . the nolle
which allowed the case to ripen it into a dismissal was
invalid. That therefore, if the nolle was invalid, then
the court will still retain jurisdiction.’’
After denying the motion to dismiss, the court relied
on the previously accepted plea canvass and proceeded
to sentencing. The defendant received a sentence of six
months incarceration, execution suspended, eighteen
months of probation and 100 hours of community ser-
vice. The court imposed fines, but remitted them due
to ‘‘the age of the case.’’ This appeal followed. Addi-
tional facts will be set forth as necessary.
I
As an initial matter, we consider the state’s claim
that the defendant’s appeal should be dismissed on the
basis of the fugitive felon disentitlement doctrine. This
doctrine ‘‘allows an appellate court to dismiss the
appeal of a party who flees subsequent to the felony
conviction from which he appeals.’’ State v. Brabham,
301 Conn. 376, 378, 21 A.3d 800 (2011). After considering
the facts and circumstances of this case, we are not
persuaded that the appeal should be dismissed pursuant
to this doctrine.
In Brabham, our Supreme Court noted that the fugi-
tive felon disentitlement doctrine is a common-law rule
that permits, but does not require, the dismissal of
appeals by fugitive defendants in certain instances. Id.,
379. It further recognized that this doctrine was not a
‘‘ ‘hard and fast rule’ ’’ and that there was no universal
approach to its application. Id., 380. Three cases
decided prior to Brabham, in which our Supreme Court
applied the doctrine, all involved fugitive defendants
whose whereabouts were unknown at the time of the
appeal.8 Id., 381–82. The facts of Brabham, however,
presented our Supreme Court with the opportunity to
consider the scope and operation of the doctrine when
the defendant had fled after his conviction, but had
been returned to custody by the time of his appeal.
Id., 382.
At the outset, the court set forth the various justifica-
tions for the doctrine. ‘‘The various rationales that have
been put forth in support of the fugitive felon disenti-
tlement doctrine include: (1) the judgment on review
may be impossible to enforce because the prisoner has
escaped, (2) the prisoner’s escape disentitles him to
call upon the resources of the [c]ourt for determination
of his claims, (3) dismissal will [discourage] the felony
of escape and [encourage] voluntary surrenders, and
(4) dismissal will [promote] the efficient, dignified oper-
ation of the courts. . . . In addition to these reasons,
courts, especially when considering appeals by fugitives
who have been returned to custody by the time of the
appeal, have referred to the need for the dignified and
efficient operation of the appellate process specifically,
rather than of courts as a whole.’’ (Citation omitted;
emphasis in original; internal quotation marks omitted.)
Id., 382–83.
The court reasoned that a reviewing appellate court
may dismiss an appeal in cases where the defendant
had been returned to custody by the time his appeal
was heard, ‘‘but his flight had undermined the integrity,
efficiency or dignity of the appellate process, including
the potential remedies in the event of a successful
appeal.’’ Id., 385. ‘‘Such an approach to the fugitive felon
disentitlement doctrine best serves all of the purposes
of the doctrine, and allows appellate courts to ensure
that a defendant does not reap the benefit of his fugitive
status . . . by gaining unfair advantages due to the pas-
sage of time at the expense of the integrity of the appel-
late process.’’ (Citation omitted; internal quotation
marks omitted.) Id., 385.
The court set forth a burden shifting analysis in this
type of case. Initially, the state ‘‘must allege specific
instances of prejudice caused by the defendant’s flight’’
when it seeks to have an appeal dismissed pursuant
to the fugitive felon disentitlement doctrine. Id., 386.
Following these allegations by the state, the ‘‘burden
of proof shifts to the defendant to show that his flight
was not prejudicial to the appellate process. . . . The
defendant must disprove the alleged prejudicial effect
of his flight by a preponderance of the evidence.’’ (Cita-
tion omitted.) Id.9
In its brief, the state argues that the analytical frame-
work of Brabham applies to the present case and that
the appellate process has been prejudiced as a result
of the defendant’s failure to appear at sentencing.
Assuming, without deciding, that Brabham applies to
the present case,10 we conclude that the appellate pro-
cess, specifically, our review of the denial of the defen-
dant’s motion to dismiss, has not been prejudiced.
Accordingly, we decline to dismiss the appeal on the
basis of the fugitive felon disentitlement doctrine.
The state focuses its claim on the rationale for the
fugitive felon disentitlement doctrine, that is, the
‘‘defendant’s actions of failing to appear on the day of
sentencing and then absconding from the jurisdiction
for twenty years have significantly and negatively
impacted the integrity of the appellate process.’’ At the
outset, we note that the state’s claim that the defendant
absconded from the jurisdiction for twenty years is not
supported by the record and amounts to nothing more
than sheer speculation, which has no place in appellate
review. See New Hartford v. Connecticut Resources
Recovery Authority, 291 Conn. 502, 510, 970 A.2d 578(2009); see also State v. LaFleur, 307 Conn. 115, 182,
51 A.3d 1048 (2012) (Palmer, J., dissenting). There is
no indication that the state actively sought out the
defendant following his failure to appear at sentencing.
Further, the rearrest order was vacated in 2004.
Turning to the matter of whether the defendant’s
conduct prejudiced the appellate process, the state
alleges that the defendant’s case never would have been
nolled had he appeared at sentencing. It further con-
tends that there would have been no basis for the
motion to dismiss and, therefore, no appeal would have
existed but for the actions of the defendant in 1996.
This reasoning ignores the conduct of the state during
the relevant time period. Specifically, it was the prose-
cutor that caused the case to be ‘‘closed out’’ pursuant
to § 14-140 (b) and the rearrest order vacated in 2004.
Additionally, the prosecutor nolled the case on July
25, 2014.
Furthermore, the mere existence of an appeal does
not constitute prejudice to the appellate process, or
significantly and negatively impact the integrity of that
process. Particularly with respect to the issue of
whether the court properly denied the motion to dis-
miss, we are unable to discern any prejudice, due to
the passage of time, warranting the dismissal of the
appeal pursuant to the fugitive felon disentitlement doc-
trine. Cognizant that this doctrine is not ‘‘ ‘a hard and
fast rule’ ’’; State v. Brabham, supra, 301 Conn. 380; we
conclude that, under these facts and circumstances,
dismissal of the defendant’s appeal is not warranted
under the fugitive felon disentitlement doctrine.
II
We now consider the defendant’s claim that the court
improperly denied his motion to dismiss. Specifically,
he argues that the court lacked jurisdiction over the
case after the nolle had been entered and thirteen
months thereafter had elapsed.11 We agree with the
defendant.
We begin by setting forth our standard of review.
‘‘Because a motion to dismiss effectively challenges the
jurisdiction of the court, asserting that the state, as a
matter of law and fact, cannot state a proper cause of
action against the defendant, our review of the court’s
legal conclusions and resulting denial of the defendant’s
motion to dismiss is de novo. . . . Factual findings
underlying the court’s decision, however, will not be
disturbed unless they are clearly erroneous.’’ (Internal
quotation marks omitted.) State v. Kallberg, 326 Conn.
1, 12, 160 A.3d 1034 (2017); see also State v. Rivers,
283 Conn. 713, 723–24, 931 A.2d 185 (2007).
Next, we identify the legal principles regarding a nolle
prosequi. ‘‘[T]he state’s right to terminate a prosecution
by the entry of a nolle prosequi has its origins in prac-
tices 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.
. . . Although the decision to initiate a nolle prosequi
still rests with the state’s attorney, the statute and the
rules now permit the defendant to object to a nolle
prosequi and to demand either a trial or a dismissal
except upon a representation to the court by the prose-
cuting official that a material witness has died, disap-
peared or become disabled or that material evidence
has disappeared or been destroyed and that a further
investigation is therefore necessary.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Lloyd,
185 Conn. 199, 201–202, 440 A.2d 867 (1981); see also
State v. Kallberg, supra, 326 Conn. 12–14 (distinguishing
unilateral entry of nolle proesqui by prosecutor from
bilateral agreement involving plea bargain between
prosecutor and defendant).
Finally, we review the court’s jurisdiction over a crim-
inal case. ‘‘The Superior Court is a constitutional court
of general jurisdiction. . . . In the absence of statutory
or constitutional provisions, the limits of its jurisdiction
are delineated by the common law. . . . The Superior
Court’s authority over criminal cases is established by
the proper presentment of the information . . . which
is essential to initiate a criminal proceeding.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Daly, 111 Conn. App. 397, 401–402, 960 A.2d 1040 (2008),
cert. denied, 292 Conn. 909, 973 A.2d 108 (2009); see
also State v. Koslik, 116 Conn. App. 693, 697, 977 A.2d
275, cert. denied, 293 Conn. 930, 980 A.2d 916 (2009).
Following a conviction, this jurisdiction ends once the
defendant begins serving his sentence. See State v.
Smith, 150 Conn. App. 623, 634, 92 A.3d 975, cert.
denied, 314 Conn. 904, 99 A.3d 1169 (2014); State v.
Delgado, 116 Conn. App. 434, 437–38, 975 A.2d 736(2009).
When the state elects to nolle a charge, however,
the termination of the court’s jurisdiction necessarily
follows a different path. ‘‘[T]he entry of a nolle prosequi
terminates the prosecution and the defendant shall be
released from custody. If subsequently the prosecuting
authority decides to proceed against the defendant, a
new prosecution must be initiated. Practice Book § 39-
31. The defendant is accused of no crime, is released
from custody unconditionally and is no longer under
the authority of the court. It follows that, generally, a
court does not have jurisdiction over the case after the
entry of a nolle.’’ (Emphasis added; footnote omitted;
internal quotation marks omitted.) State v. Daly, supra,111 Conn. App. 402–403; see also State v. Richardson,
291 Conn. 426, 430, 969 A.2d 166 (2009). Put another
way, ‘‘[a]lthough the entry of a nolle prosequi results
in the defendant’s release from custody, he can . . . be
tried again upon a new information and a new arrest.’’
(Internal quotation marks omitted.) State v. Kallberg,
supra, 326 Conn. 13. Furthermore, thirteen months after
the nolle, all pertinent records are erased pursuant to
statute. See General Statutes § 54-142a (c) (1); see also
State v. Daly, supra, 402 n.4.
In the present case, the defendant pleaded nolo con-
tendere to the charge of operating a motor vehicle while
under the influence of liquor or drugs.12 He failed to
appear for sentencing on January 3, 1996. The court
ordered a rearrest, which remained in effect until
August, 2004. At that time, the defendant’s case was
‘‘filed pursuant to § 14-140’’ and closed out. After
approximately ten years, in July, 2014, the state nolled
the defendant’s case, which the court noted on the
record. More than thirteen months later, the state re-
docketed the case on September 4, 2015. Approximately
two months later, the defendant filed his motion to
dismiss on the basis that the court lacked jurisdiction
following the nolle that had been entered by the state
and the passage of thirteen months. Following a hearing
on December 3, 2015, the court denied the defendant’s
motion to dismiss.
Specifically, in denying the motion to dismiss, the
court found that, given the facts of this case, the state
had mistakenly nolled the case. It further reasoned that
the nolle was invalid, and, therefore, the court retained
jurisdiction in the defendant’s case. The court cited no
authority that would support its decision to invalidate
a nolle that had been entered more than thirteen months
earlier. We are not aware of, and the parties have not
directed us to, any statute, rule of practice, or case law
that would support the court’s decision that a nolle
entered in error by the prosecutor after the case had
been idle for nearly one decade is invalid. To the con-
trary, we note that the trial court has observed: ‘‘[W]e
live in an adversary system and very often for both
sides mistakes lead to unintended and final results. The
court does feel that the issue of mistake can and should
not color any appraisal made of a strictly jurisdictional
question.’’ State v. Jesus C., Superior Court, judicial
district of New Haven, Docket No. CR-295038, (Septem-
ber 18, 1990) (1990 WL 276375, *4). In the present case,
the legal consequence of the prosecutor’s unilateral
action in entering the nolle in 2014—whether intended
or unintended—was that the state unconditionally
abandoned the prosecution of the defendant. See State
v. Kallberg, supra, 326 Conn. 13 n.7. The court, there-
fore, lacked jurisdiction following this action by the
prosecutor.
In its appellate brief, the state argues that a court
retains the inherent authority to correct, sua sponte, a
clerical error in the judgment at any time.13 See, e.g.,
Sanzo v. Sanzo, 137 Conn. App. 216, 222 n.5, 48 A.3d
689 (2012); Milazzo v. Schwartz, 88 Conn. App. 592,
597, 871 A.2d 1040 (2005); see also State v. Grant, 286
Conn. 499, 502 n.1, 944 A.2d 947, cert. denied, 555 U.S.
916, 129 S. Ct. 271, 172 L. ed. 2d 200 (2008); State v.
Wilson, 199 Conn. 417, 436–37, 513 A.2d 620 (1986).
We agree with that statement of the law; we disagree,
however, with its application to the present case. The
case before us does not constitute a mere clerical error,
such as an error in the calculation of damages. See
Milazzo v. Schwartz, supra, 597. Additionally, the error
in the present case originated not with the trial court
but with the prosecutor’s entry of a nolle. As our
Supreme Court has explained: ‘‘A distinction . . . must
be drawn between matters of substance and clerical
errors, the distinction being that mere clerical errors
may be corrected at any time even after the end of the
term. . . . A clerical error does not challenge the
court’s ability to reach the conclusion that it did reach,
but involves the failure to preserve or correctly repre-
sent in the record the actual decision of the court. . . .
In other words, it is clerical error if the judgment as
recorded fails to agree with the judgment in fact ren-
dered . . . .’’ (Citations omitted; internal quotations
omitted.) Maguire v. Maguire, 222 Conn. 32, 39–40, 608
A.2d 79 (1992); Bank of Stamford v. Schlesinger, 160
Conn. App. 32, 43, 125 A.3d 209 (2015); see also Jordan
v. Jordan, 125 Conn. App. 207, 211, 6 A.3d 1206 (2010)
(General Statutes § 52-212a imposes four month time
limit for modification of matters of substance), cert.
denied, 300 Conn. 919, 14 A.3d 333 (2011).
The state nolled the case in 2014, and the court noted
that disposition. After the passage of thirteen months,
the records of the defendant’s case were subject to
erasure by operation of law. The redocketing and the
denial of the motion to dismiss changed the substance
of the disposition from a dismissal of the charge to a
conviction of operating a motor vehicle while under
the influence of liquor or drugs. See Maguire v. Magu-
ire, supra, 222 Conn. 39. Any error originated with the
decision of the prosecutor to nolle the charge and is
not a clerical error.14 We therefore reject the state’s
argument that the court merely corrected a clerical
error when it denied the motion to dismiss on December
3, 2015.
We find support for our conclusion in Common-
wealth v. Miranda, 415 Mass. 1, 610 N.E.2d 964 (1993).
In that case, the Commonwealth of Massachusetts
nolled one indictment against the defendant, noting that
it had been superseded by a second indictment. Id., 4.
Approximately three months later, the commonwealth
moved to vacate the nolle with respect to the second
count of the first indictment, claiming that it had been
entered in error. Id. The trial court denied the defen-
dant’s attempts to have the first indictment dismissed,
concluding that the commonwealth’s actions had been
‘‘a mistake, oversight and unintended act.’’ (Internal
quotation marks omitted.) Id.
On appeal, the defendant argued that the trial court
improperly denied his motion to dismiss and erred by
permitting the reinstatement of count two of the first
indictment. Id., 5. The commonwealth countered that
the trial judge had the authority to vacate the nolle on
the basis of a clerical error. Id. The Supreme Judicial
Court of Massachusetts agreed with the defendant, con-
cluding that the reinstatement of the first indictment
had been improper. Id. The court first noted that, pursu-
ant to Massachusetts law, clerical errors are subject to
correction at any time. ‘‘Such mistakes, however, do
not include or apply to the correction of errors of sub-
stance. . . . Material or substantial errors are not ones
of transcription, copying, or calculation, but are those
that trample the defendant’s rightful expectations.’’
(Citations omitted.) Id. It further reasoned that the
defendant had a rightful expectation that he would not
be charged under the first indictment that had been
nolled unless the commonwealth filed a new and proper
indictment. Id., 6.
The court’s reasoning in Commonwealth v. Miranda,
supra, 415 Mass. 1, applies to the present case. The
defendant’s case idled for years. The state took steps
that led to the rearrest order being vacated and later
nolled the charges. Thirteen months passed before the
resurrection of the defendant’s case. Under the facts
and circumstances, we are not persuaded that this is a
case of a mere transcription or calculation error. The
effect of the state’s decision to nolle the case resulted
in the termination of the proceedings against the defen-
dant without placing him in jeopardy. To subsequently
revive the charge is a matter of substance, and, there-
fore, the rule regarding clerical errors does not apply
to this case.15
The judgment is reversed and the case is remanded
with direction to grant the motion to dismiss and to
render judgment thereon.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The defendant also entered a plea of nolo contendere to part B of the
information to the charge of having previously been convicted of a violation
of § 14-227a. For the sake of simplicity, all references to the defendant’s
plea herein include both pleas.
2
As a result of this conclusion, we need not and do not reach the defen-
dant’s second claim pertaining to the propriety of his plea.
3
General Statutes § 14-140 (b) provides in relevant part: ‘‘If any person
so arrested or summoned wilfully fails to appear for any scheduled court
appearance at the time and place assigned . . . a report of such failure
shall be sent to the commissioner [of motor vehicles] by the court having
jurisdiction. . . . Any infaction or violations, for which a report for failure
to appear has been sent to the commissioner under this subsection, that
have not been otherwise disposed of shall be dismissed by operation of law
seven years after such report was sent.’’ See State v. Crisanti, 76 Conn. App.
349, 350, 819 A.2d 299 (2003) (charges of altering motor vehicle identification
number were closed out under § 14-140 after defendant failed to appear at
scheduled court date).
4
At a proceeding on July 25, 2014, the court was presented with a docket
containing more than 100 matters, including the defendant’s case. The state
entered a nolle prosequi as to each matter on this docket.
5
General Statutes § 54-56 provides: ‘‘All courts having jurisdiction of crimi-
nal cases shall at all times have jurisdiction and control over informations
and criminal cases pending therein and may, at any time, upon motion by
the defendant, dismiss any information and order such defendant discharged
if, in the opinion of the court, there is not sufficient evidence or cause to
justify the bringing or continuing of such information or the placing of the
person accused therein on trial.’’
6
Practice Book § 41-8 provides in relevant part: ‘‘The following defenses
or objections, if capable of determination without a trial on the general
issue, shall, if made prior to trial, be raised by a motion to dismiss the
information . . . (4) Absence of jurisdiction of the court over the defendant
or the subject matter . . . .’’
7
In its brief, the state summarized the argument in its opposition that the
nolle prosequi was invalid because ‘‘(1) the state had no authority to enter
it after the guilty plea had been accepted by the court . . . and (2) it had
not been entered properly under General Statutes § 14-227a (f) and Practice
Book § 39-29 [both of which require the prosecutor to state the reason for
the nolle in open court].’’ (Footnotes omitted.)
8
The three cases cited in Brabham are Valle v. Commissioner of Correc-
tion, 244 Conn. 634, 711 A.2d 722 (1998), State v. Patterson, 236 Conn. 561,
674 A.2d 416 (1996), and State v. Leslie, 166 Conn. 393, 349 A.2d 843 (1974).
Additionally, this court affirmed the decision of the habeas court, holding
that the petitioner had forfeited his appellate right because he had absented
himself from his jury trial and sentencing. Tyler v. Bronson, 12 Conn. App.
621, 621–22, 625–26, 533 A.2d 570 (1987), cert. denied, 207 Conn. 802, 540
A.2d 75 (1988).
9
In Brabham, the defendant set forth a variety of appellate claims, includ-
ing insufficiency of the evidence to sustain his conviction, an improper jury
instruction, the improper denial of his motion for a mistrial and evidentiary
errors. State v. Brabham, supra, 301 Conn. 378. Our Supreme Court con-
cluded the state had alleged, and the defendant had failed to disprove, that
the loss of trial exhibits prejudiced the appellate process as to all of these
claims. Id., 386–88. As we subsequently discuss, the appellate process has
not been prejudiced with respect to the defendant’s first appellate claim.
10
We note that the defendant was not convicted of a felony in the present
case. Further, he did not escape from custody of the Department of Correc-
tion; see, e.g., Valle v. Commissioner of Correction, 244 Conn. 634, 635, 711
A.2d 722 (1998) (petitioner failed to return from period of leave to halfway
house while in custody of Department of Correction); State v. Leslie, 166
Conn. 393, 394, 349 A.2d 843 (1974) (defendant escaped from custody of
Department of Correction during transport); he failed to appear for sentenc-
ing, which constitutes a less serious transaction. Moreover, the record does
not indicate that the defendant had been sought out by the authorities in
this jurisdiction. See, e.g., State v. Leslie, supra, 394. Additionally, the trial
court vacated the rearrest order in 2004. Despite these issues, we will decide
the question of the applicability of the fugitive felon disentitlement doctrine
as it has been presented to us by the parties.
11
General Statutes § 54-142a (c) (1) provides: ‘‘Whenever any charge in
a criminal case has been nolled in the Superior Court, or in the Court of
Common Pleas, if at least thirteen months have elapsed since such nolle,
all police and court records and records of the state’s or prosecuting attorney
or the prosecuting grand juror pertaining to such charge shall be erased,
except that in cases of nolles entered in the Superior Court, Court of Common
Pleas, Circuit Court, municipal court or by a justice of the peace prior to
April 1, 1972, such records shall be deemed erased by operation of law and
the clerk or the person charged with the retention and control of such
records shall not disclose to anyone their existence or any information
pertaining to any charge so erased, provided nothing in this subsection shall
prohibit the arrested person or any one of his heirs from filing a petition
to the court or to the records center of the Judicial Department, as the case
may be, to have such records erased, in which case such records shall
be erased.’’
12
‘‘A nolo contendere plea has the same effect as a guilty plea, but a nolo
contendere plea cannot be used against the defendant as an admission in
a subsequent criminal or civil case. . . . Indeed, [i]t is well established that
an unconditional nolo contendere plea, when intelligently and voluntarily
made, operates as a waiver of all nonjurisdictional defects and bars later
challenges to pretrial proceedings.’’ (Citation omitted; internal quotation
marks omitted.) State v. Palkimas, 116 Conn. App. 788, 795, 977 A.2d 705(2009).
13
The state also appears to argue that the court properly considered the
state’s opposition to the motion to dismiss as a request to open and set
aside a judgment entered by mistake. ‘‘[O]ur courts have inherent power to
open, correct and modify judgments, but that authority is restricted by
statute and the rules of practice. . . . A motion to open a judgment is
governed by General Statutes § 52-212a and Practice Book § 17-4. Section
52-212a provides in relevant part: Unless otherwise provided by law and
except in such cases in which the court has continuing jurisdiction, a civil
judgment or decree rendered in the Superior Court may not be opened or
set aside unless a motion to open or set aside is filed within four months
following the date on which it was rendered or passed. . . . Practice Book
§ 17-4 states essentially the same rule. . . . Nevertheless, it is also well
settled that [a] judgment rendered may be opened after the four month
limitation . . . if it is shown that the judgment was obtained by fraud, in
the absence of actual consent, or because of mutual mistake.’’ (Citation
omitted; emphasis added; internal quotation marks omitted.) Gordon v.
Gordon, 148 Conn. App. 59, 64, 84 A.3d 923 (2014). This general rule applies
to criminal cases as well as civil matters. See State v. Wilson, 199 Conn.
417, 437, 513 A.2d 620 (1986) (‘‘[w]e see no reason to distinguish between
civil and criminal judgments in this respect, and we therefore hold that . . .
a criminal judgment may not be modified in matters of substance beyond
a period of four months after the judgment has become final’’).
As correctly noted in the defendant’s reply brief, even if the court had
treated the state’s opposition to the defendant’s motion to dismiss as a
motion to set aside and open, it was not timely filed within the four month
period of § 52-212a and Practice Book § 17-4. Furthermore, the court did
not find that there had been a mutual mistake, or one that is common to
both parties. See Magowan v. Magowan, 73 Conn. App. 733, 739, 812 A.2d
30 (2002), cert. denied, 262 Conn. 934, 815 A.2d 134 (2003). Accordingly,
we are not persuaded by this argument.
14
In its opposition to the motion to dismiss, the state argued that the
‘‘Criminal Justice Information System (CJIS) reflects that ‘This case was
sentenced and disposed of on July 25, 2014’ and that the defendant was
‘Committed to the Department of Correction and Probation Ordered.’ . . .
This information is consistent with the fact that the clerk’s file reflects that
the sentence was imposed on July 25, 2014. At the hearing on the motion to
dismiss, the prosecutor stated that, for a period of time, the CJIS erroneously
indicated that the defendant had been sentenced and the case disposed as
of July 25, 2014. Defense counsel agreed with the prosecutor, and explained
that the CJIS had been changed to now show that no judgment had been
entered in the defendant’s case.
Any confusion or error with respect to the file is not germane to the
present case. The defendant’s rearrest was vacated and the case was closed
out pursuant to § 14-140 (b) in 2004 as a result of the action of the prosecutor.
The prosecutor subsequently nolled the case on July 25, 2014. The transcript
of that proceeding unquestionably demonstrates that the state nolled all the
matters before the court, including the defendant’s case. While this may
have been done by mistake, any error lies with the prosecutor, and not the
court. Any subsequent error in the CJIS does not impact or alter this analysis.
15
In its brief, the state directs us to Gholson v. State, 308 S.W.3d 189 (Ark.
App. 2009). In that case, the defendant had pleaded guilty to two counts
of battery and sentenced to 240 months incarceration and a 120 months
suspended sentence. Id., 190. On October 9, 2007, the state moved to revoke
the defendant’s suspended sentence, alleging that he had violated its terms
by committing the act of rape, failing to pay fines, costs and fees, and failing
to notify the sheriff of his address and employment status. Id. During the
process of scheduling a hearing on the revocation case, an order of nolle
proesqui as to the petition to revoke was signed and filed on February 26,
2008. Id. Despite this, a hearing was held on March 6, 2008, and the court
determined that the defendant had violated the conditions of his suspended
sentence by committing the act of rape. Id.The defendant then learned of the nolle and moved to set aside the
judgment on March 18, 2008. The state responded that the nolle had been
entered in error, as it had been mistakenly included in a list of ‘‘active stale
cases’’ by the Administrative Office of the Courts. Id. After a hearing, the
court set aside the nolle as a scrivener’s error and denied the motion to set
aside the revocation of the suspended sentence. Id. The Arkansas Court of
Appeals noted that under that state’s jurisprudence, authority to set aside
the nolle existed. Id. ‘‘A circuit court judge may set aside its own order
dismissing charges in a criminal case if the original order was entered in
error.’’ Id., 190–91. It also relied on Arkansas Rule of Civil Procedure 60,
which the Supreme Court of that state had held to apply in criminal cases
‘where it recognized a trial court’s power to correct a judgment nunc pro
tunc to make it speak the truth.’’ Id., 191. Finally, the court noted that the
Arkansas Supreme Court had ‘‘defined a true clerical error, one that may
be correct by nunc pro tunc order, as essentially one that arises not from
an exercise of the court’s judicial discretion but from a mistake on the
part of its officers (or perhaps someone else).’’ (Internal quotation marks
omitted.) Id.We conclude that Gholson provides limited guidance as a result of the
differences between our law and that of Arkansas. It appears that Arkansas
takes a broader view of clerical errors, while we are bound, of course, by
the limits delineated by our Supreme Court. State v. Holley, 174 Conn. App.
488, 495, A.3d (2017). Moreover, in Gholson, the actions of the
Administrative Office of the Courts contributed to the error, where, in the
present case, it was solely the acts of the prosecutor that resulted in the
nolle of the defendant’s case. Therefore, we are not persuaded by the state’s
reliance on Gholson.