Mitchell v. State , 188 Conn. App. 245 ( 2019 )

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JAMES A. MITCHELL v. STATE
OF CONNECTICUT
(AC 40927)
Keller, Moll and Bishop, Js.
Syllabus
The petitioner, who had been convicted of the crimes of attempt to commit
murder, conspiracy to commit murder, kidnapping in the first degree,
conspiracy to commit kidnapping in the first degree, sexual assault in
the first degree, conspiracy to commit sexual assault in the first degree,
assault in the first degree, conspiracy to commit assault in the first
degree and criminal possession of a firearm, appealed to this court from
the judgment of the trial court denying his request for leave to file a
late petition for certification to appeal from the denial of his petition
for a new trial. The petitioner claimed that the trial court abused its
discretion in denying his request because the court, in considering the
length of the delay in filing the request, did not consider the reasons
for the delay or any other factors relevant to permitting a late filing
and, instead, denied his request on the basis of the merits of his appeal.
Held that the trial court did not abuse its discretion in denying the
petitioner’s request for leave to file a late petition for certification to
appeal; there was a substantial delay of close to one year between the
time the petitioner filed his appeal and his request for leave to file a late
petition for certificate to appeal, in his request for leave the petitioner
attributed the delay to the fact that he had not been provided with
a written notice of appeal procedures and the statutory certification
requirement, which neither the state nor the court were obligated to
provide to the petitioner, and although the court, in its memorandum
of decision, referenced the merits of the petitioner’s claims on appeal,
it also made clear that its decision was based in large part on the
petitioner’s delay, and the court, which explicitly concluded that the
petitioner’s claims were meritless and too late, considered the length
of the petitioner’s delay and afforded due regard to the reasons for
the delay.
Argued January 9—officially released March 5, 2019
Procedural History
Amended petition for a new trial following the peti-
tioner’s conviction of the crimes of attempt to commit
murder, conspiracy to commit murder, kidnapping in
the first degree, conspiracy to commit kidnapping in
the first degree, sexual assault in the first degree, con-
spiracy to commit sexual assault in the first degree,
assault in the first degree, conspiracy to commit assault
in the first degree and criminal possession of a firearm,
brought to the Superior Court in the judicial district
of Hartford and tried to the court, Hon. Edward J.
Mullarkey, judge trial referee; judgment denying the
petition, from which the petitioner appealed to this
court, which dismissed the appeal; subsequently, the
court, Hon. Edward J. Mullarkey, judge trial referee,
denied the petitioner’s request for leave to file a late
petition for certification to appeal, and the petitioner
appealed to this court. Appeal dismissed.
Dante R. Gallucci, assigned counsel, for the appel-
lant (petitioner).
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Donna Mambrino, senior assistant state’s
attorney, for the appellee (respondent).
Opinion
PER CURIAM. The petitioner, James A. Mitchell,
appeals from the trial court’s denial of his request for
leave to file a late petition for certification to appeal
from the denial of his petition for a new trial. On appeal,
the petitioner claims that the court abused its discretion
in denying his request because the court, in considering
the length of the delay in filing the request, did not
consider the reasons for the delay or any other factors
relevant to permitting a late filing but, rather, addressed
the merits of the petitioner’s appeal. We dismiss this
appeal.
The following procedural history was outlined by
this court in the petitioner’s habeas appeal: ‘‘In 2005,
following a jury trial, the petitioner was convicted of
attempt to commit murder in violation of General Stat-
utes §§ 53a-49 (a), 53a-8 and 53a-54a, conspiracy to com-
mit murder in violation of General Statutes §§ 53a-48
(a) and 53a-54a, kidnapping in the first degree in viola-
tion of General Statutes §§ 53a-8 and 53a-92 (a) (2) (A),
conspiracy to commit kidnapping in the first degree in
violation of General Statutes §§ 53a-48 and 53a-92 (a)
(2) (A), sexual assault in the first degree in violation
of General Statutes §§ 53a-8 and 53a-70 (a) (1), conspir-
acy to commit sexual assault in the first degree in viola-
tion of General Statutes §§ 53a-48 and 53a-70 (a) (1),
assault in the first degree in violation of General Stat-
utes §§ 53a-8 and 53a-59 (a) (5), conspiracy to commit
assault in the first degree in violation of General Stat-
utes §§ 53a-48 (a) and 53a-59 (a) (5), and criminal pos-
session of a firearm in violation of General Statutes
§ 53a-217 (a) (1). The court imposed a total effective
sentence of fifty-seven years imprisonment.
‘‘The petitioner appealed from the judgment of con-
viction to this court, which affirmed the judgment of
the trial court. State v. Mitchell, 110 Conn. App. 305,
955 A.2d 84, cert. denied, 289 Conn. 946, 959 A.2d 1012
(2008).’’ Mitchell v. Commissioner of Correction, 156
Conn. App. 402, 404, 114 A.3d 168, cert. denied, 317
Conn. 904, 114 A.3d 1220 (2015). During the pendency
of the petitioner’s direct appeal, he filed a petition for
a new trial on January 18, 2006.1 In 2010, the petitioner
filed a petition for a writ of habeas corpus, which the
habeas court denied. Id., 406–407. This court affirmed
that decision. Id., 421.
Following a period of several years, during which the
petitioner’s direct and habeas appeals were decided, a
hearing on the petition for a new trial was held on
divers dates in 2016. On August 22, 2016, the trial court,
Hon. Edward J. Mullarkey, judge trial referee, issued
a memorandum of decision denying the petition for a
new trial. On September 28, 2016, the petitioner
appealed from the trial court’s denial of his petition for
a new trial. On September 5, 2017, the petitioner was
notified by this court that a petition for certification to
appeal had not been filed as required pursuant to Gen-
eral Statutes § 54-95 (a).2 Thereafter, on September 8,
2017, the petitioner filed a request for leave to file a
petition for certification to appeal with the trial court.
On September 14, 2017, after a hearing, this court dis-
missed the petitioner’s appeal for failure to comply with
§ 54-95 (a).
On October 12, 2017, the trial court, relying on § 54-
95 (a) and our Supreme Court’s decision in Santiago
v. State, 261 Conn. 533, 804 A.2d 801 (2002), denied the
petitioner’s request for leave to file a late petition for
certification to appeal. This appeal followed.
The petitioner’s sole claim on appeal, related to the
trial court’s denial of his request for leave to file a
late petition for certification to appeal, does not merit
extensive discussion. In Santiago v. State, supra, 261
Conn. 539, 543, our Supreme Court held that, even
though the failure to comply with § 54-95 (a) is not a
jurisdictional bar to an appeal from the denial of a
petition for a new trial, ‘‘the certification requirement
of § 54-95 (a) is mandatory rather than directory.’’ In
addition, the court in Santiago rejected the petitioner’s
argument that the state had waived its right to seek
dismissal of the petitioner’s appeal, concluding that
‘‘any purported waiver by the state of the certification
requirement of § 54-95 (a) simply is not an adequate
substitute for compliance with that requirement . . . .’’
Id., 544. As such, the court concluded that there was
‘‘no reason why an appellate tribunal should entertain
an appeal from a denial of a petition for a new trial
unless the petitioner first has sought certification to
appeal pursuant to § 54-95 (a).’’ Id. In reaching this
conclusion, the court noted that ‘‘the decision of
whether to entertain an untimely request for certifica-
tion to appeal . . . is within the sound discretion of
the [trial] court. . . . In exercising that discretion, the
court should consider the reasons for the delay.’’ (Cita-
tion omitted; internal quotation marks omitted.) Id.,
544–45 n.17. The court further reiterated that ‘‘[the trial]
court will be required to decide whether to excuse the
petitioner’s delay in filing his petition for certification
to appeal . . . with due regard to the length of the
delay, the reasons for the delay, and any other relevant
factors.’’ (Citation omitted; emphasis added.) Id., 545
n.18.
In the case at hand, the petitioner claims that in
denying his request for leave to file a late petition, the
trial court abused its discretion by failing to consider
the reasons for the delay and, instead, denied his request
on the basis of the merits of his appeal. We are unper-
suaded.
The record makes clear that there was a substantial
delay of close to one year between the time the peti-
tioner filed his appeal and his request for leave to file
a late petition for certification to appeal. Moreover, in
his request for leave, the petitioner attributed the delay
to not being provided with a written notice of appeal
procedures. Neither § 54-95 (a) nor our case law creates
any obligation on the part of the state or the court to
provide a petitioner with notice of the statutory certifi-
cation requirement, and, even if such a requirement
existed, any inference that the failure to provide notice
constituted a ‘‘waiver by the state of the certification
requirement of § 54-95 (a) simply is not an adequate
substitute for compliance with that requirement. . . .’’
(Emphasis added.) Id., 544. In the trial court’s memoran-
dum of decision, although the petitioner is correct that
it referenced the merits of the petitioner’s claims on
appeal, it also made clear that its decision was based
in large part on the petitioner’s delay, citing § 54-95 (a).
Indeed, the court explicitly concluded that the ‘‘[p]eti-
tioner’s claims are meritless and too late.’’ (Emphasis
added.) Accordingly, by considering the length of the
petitioner’s delay, the court afforded due regard to the
reasons for the delay, and, thus, the court’s denial of
the petitioner’s request for leave to file a late petition for
certification to appeal was not an abuse of discretion.
The appeal is dismissed.
1
The petitioner subsequently filed an amended petition for a new trial,
which was dated November 18, 2013.
2
General Statutes § 54-95 (a) provides in relevant part that ‘‘[n]o appeal
may be taken from a judgment denying a petition for a new trial unless,
within ten days after the judgment is rendered, the judge who heard the
case or a judge of the Supreme Court or the Appellate Court, as the case
may be, certifies that a question is involved in the decision which ought to
be reviewed by the Supreme Court or by the Appellate Court.’’