State v. Sienkiewicz

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STATE OF CONNECTICUT v. PAWEL SIENKIEWICZ
(AC 39051)
Keller, Prescott and Beach, Js.
Syllabus
The defendant, who had been convicted, on a plea of guilty, of the crime
of assault in the third degree, appealed to this court from the judgment
of the trial court dismissing his petition for a writ of error coram nobis.
In his petition, the defendant sought to withdraw his guilty plea and to
vacate or void his conviction, alleging that, at the time he had entered
the plea, he did not understand the immigration consequences that
would result from the plea and sentence, and that his attorney’s failure
to advise him of those consequences constituted ineffective assistance
of counsel. Prior to the assault, federal authorities had initiated removal
proceedings against the defendant because he had overstayed the term
of a tourist visa. Subsequent to his plea and sentence, while the defendant
was on a wait list for a certain type of visa that would have provided
him relief from removal, federal authorities notified him that he was
ineligible for admission to the United States because of the assault. The
state filed a motion to dismiss the petition on the ground that the trial
court lacked jurisdiction to issue a writ of error coram nobis because
the defendant had failed to pursue a writ of habeas corpus while he
was in custody. Held that the trial court properly dismissed the petition
for a writ of error coram nobis, that court having properly determined
that it lacked jurisdiction over the petition because the defendant had
an adequate remedy at law in the form of habeas corpus relief while
he was in custody on the assault charge; the defendant had the ability
to file a petition for a writ of habeas corpus when he was in custody
in order to challenge the effectiveness of his counsel and the validity
of his plea, and, although the defendant claimed that an action brought
prior to his petition here for a writ of error coram nobis would not have
been ripe because he did not know that he would be removed from the
visa wait list during the time he was in custody, the issue was whether
the remedy of habeas relief was available to him when he was in custody,
which it was, as he was subject to adverse immigration consequences
during the entire period of his custody pursuant to his sentence.
Argued April 18—officially released November 7, 2017
Procedural History
Substitute information charging the defendant with
the crime of assault in the third degree, brought to the
Superior Court in the judicial district of New Britain,
geographical area number fifteen, where the defendant
was presented to the court, Baldini, J., on a plea of
guilty; judgment of guilty; thereafter, the court, Keegan,
J., granted the state’s motion to dismiss the defendant’s
petition for a writ of error coram nobis, and the defen-
dant appealed to this court. Affirmed.
Michael W. Brown, assigned counsel, for the appel-
lant (defendant).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Brian Preleski, state’s
attorney, and Jennifer Miller, assistant state’s attorney,
for the appellee (state).
Opinion
BEACH, J. The defendant, Pawel Sienkiewicz,
appeals from the judgment of the trial court granting
the state’s motion to dismiss his petition for a writ of
error coram nobis. The defendant claims that the court
erred in holding that it did not have jurisdiction to
consider the merits of his petition and, therefore, erred
in dismissing his petition for a writ of error coram nobis.
We affirm the judgment of the trial court.1
The following facts and procedural history are rele-
vant to our disposition of this appeal. The defendant is
a native and citizen of Poland who legally entered the
United States on a tourist visa but unlawfully overstayed
that visa’s authorized term. By 2009, federal authorities
initiated removal proceedings against the defendant,
ultimately leading to a final order of removal.2
On September 5, 2010, while removal proceedings
against the defendant were pending, the defendant
assaulted a woman and was charged in a substitute
information with assault in the third degree in violation
of General Statutes § 53a-61. On April 3, 2011, the defen-
dant was arrested on a charge of operating a motor
vehicle while under the influence of alcohol or drugs. He
was charged as a third offender in violation of General
Statutes § 14-227a, which is a felony pursuant to General
Statutes § 53a-25. Following a jury trial, the defendant
was found guilty of operating a motor vehicle while
under the influence, and the defendant pleaded guilty
to the part B information charging him with being a
persistent offender. On July 12, 2013, the court held a
sentencing hearing on the conviction of operating under
the influence as a third offender. The court sentenced
the defendant to three years incarceration, execution
suspended after twenty-two months, to be followed by
three years probation, on the conviction of operating
under the influence. Also at the July 12, 2013 hearing,
the defendant pleaded guilty to assault in the third
degree in violation of § 53a-61, in the case arising from
the September, 2010 assault. Prior to accepting his plea,
the court asked whether he understood that this convic-
tion may have ‘‘consequences of deportation, exclusion
from readmission or denial of naturalization, pursuant
to federal law,’’ to which he responded, ‘‘[y]es.’’ The
defendant’s attorney added that ‘‘with regard to the
immigration consequences, I’ve gone over that very
thoroughly with the defendant and also spoken to his
immigration counsel, so I’m confident that he’s been
advised with regard to those consequences.’’ The court
then sentenced the defendant to one year of imprison-
ment on the assault charge, to be served concurrently
with the three year sentence he had received earlier
that day.
Meanwhile, while the criminal charges were pending,
the defendant on August 2, 2011, filed a petition for a
U nonimmigrant status (U visa)3 and the accompanying
application for advance permission to enter as a nonim-
migrant (application for advance entry), which, if
granted, would have provided him relief from removal.
On February 27, 2014, the defendant was notified that
his petition for a U visa and application for advance
entry had been placed on a wait list. On March 26, 2015,
the United States Citizenship and Immigration Services
(immigration services) division of the Department of
Homeland Security sent the defendant a letter notifying
him that he had been removed from the U visa wait list
because he had been placed on the wait list in error,
and that he was potentially ineligible for the U visa.
Accordingly, immigration services intended to deny his
application for advance entry. The letter explained that
the defendant is ‘‘inadmissible to the United States
under section [1182] (a) (2) (A) (i) (I) (crime involving
moral turpitude) of the Immigration and Nationality
Act (the Act)’’; 8 U.S.C. § 1101 et seq. (2012); but that
immigration services has discretion to waive this
ground of inadmissibility under subdivisions (d) (3) or
(14) of § 1182 of the act. Section 1182 (a) (2) (A) (i) of
title 8 of the United States Code provides in relevant
part that ‘‘any alien convicted of . . . (I) a crime involv-
ing moral turpitude . . . is inadmissible.’’ Section 1182
(a) of title 8 of the United States Code provides in
relevant part that ‘‘aliens who are inadmissible under
[subsection (a)] are ineligible to receive visas and ineli-
gible to be admitted to the United States . . . .’’ Regard-
ing a ‘‘crime of moral turpitude,’’ the letter noted that
‘‘[a]fter a thorough review of the file [immigration ser-
vices had] determined that [the defendant had] not
addressed the fact that by [his] actions [he had] created
a victim,’’ then proceeded to describe the September,
2010 assault. The letter concluded by providing the
defendant a period of thirty-three days to ‘‘submit evi-
dence to demonstrate that [immigration services]
should exercise its discretion to approve [his] applica-
tion for a waiver under [8 U.S.C. § 1182 (d) (3)] or that
approving [the defendant’s] request for the waiver is in
the national or public interest, pursuant to [§ 1182 (d)
(14)].’’ The record does not reflect whether the defen-
dant ever submitted such evidence.
On June 19, 2015, the defendant filed a petition for
a writ of error coram nobis, requesting that the court
allow him to withdraw his guilty plea as to the charge
of assault and to vacate or void the assault conviction.
He argued that he had not understood that serious immi-
gration consequences, namely, his removal from the U
visa wait list, would result from his plea and sentence,
and that his attorney’s failure to advise him of these
consequences constituted ineffective assistance of
counsel. The state moved to dismiss his petition,
arguing that the court may issue a writ of error coram
nobis only if no adequate remedy is provided by law
and that the defendant did not satisfy this requirement
‘‘because he failed to timely pursue a writ of habeas
corpus.’’ After a hearing, the court issued its March
11, 2016 memorandum of decision, granting the state’s
motion to dismiss. The court agreed that the defendant
could have petitioned for a writ of habeas corpus while
in custody. The court held that it did ‘‘not have jurisdic-
tion to reach the merits of the petition for a writ of
error coram nobis’’ because an alternative legal remedy
had been available to the defendant. This appeal
followed.
The defendant claims that the court erred in dismiss-
ing his petition for a writ of error coram nobis on the
ground that it did not have jurisdiction to hear the
merits of his petition. The defendant primarily argues
that a writ of habeas corpus had been unavailable to
him because he had been unaware that his guilty plea
would cause his removal from the U visa wait list until
after he had been released from custody for his assault
conviction. The state argues that the trial court lacked
jurisdiction to issue the writ because the defendant had
had several legal remedies available to him and that
pursuant to State v. Stephenson, 154 Conn. App. 587,
592, 108 A.3d 1125 (2015), the relevant question is not
whether the defendant took advantage of those reme-
dies but, rather, whether he could have pursued them.
We agree with the state.
We begin our analysis by setting forth the applicable
standard of review. Our Supreme Court has long held
that ‘‘because [a] determination regarding a trial court’s
subject matter jurisdiction is a question of law, our
review is plenary. . . . [A] court lacks discretion to
consider the merits of a case over which it is without
jurisdiction . . . .’’ (Internal quotation marks omitted.)
Richardson v. Commissioner of Correction, 298 Conn.
690, 696, 6 A.3d 52 (2010).
Preliminarily, the state suggests that the remedy of
a writ of error coram nobis is no longer an available
remedy under Connecticut law. The state essentially
argues that even if the remedy was available in the
distant past, its function has long been replaced by
other remedies, such as the petition for a new trial and
expanded habeas corpus availability. We decline the
state’s invitation to announce the demise of the writ
of error coram nobis. Although the writ has not been
invoked successfully in many years, the Supreme Court
has continued to describe the writ and its limitations
in the present tense, and has never declared it mori-
bund. See, e.g., id., 700 n.8; State v. Das, 291 Conn. 356,
370, 968 A.2d 367 (2009) (‘‘[a] writ of error coram nobis
is an ancient common-law remedy which authorized
the trial judge . . . to vacate the judgment of the same
court if the party aggrieved by the judgment could pre-
sent facts, not appearing in the record, which, if true,
would show that such judgment was void or voidable’’
[internal quotation marks omitted]); State v. Hender-
son, 259 Conn. 1, 3, 787 A.2d 514 (2002); State v. Gris-
graber, 183 Conn. 383, 385, 439 A.2d 377 (1981).
We assume, then, as we must, that the remedy of the
writ of error coram nobis still exists. Nonetheless, the
scope of cases in which the remedy may be available
is exceedingly narrow. As we recently stated in State
v. Stephenson, supra, 154 Conn. App. 590, ‘‘[a] writ of
error coram nobis lies only in the unusual situation
where 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. . . . The errors in fact on which a writ of error
[coram nobis] can be predicated are few. . . . This can
be only where the party had no legal capacity to appear,
or where he had no legal opportunity, or where the court
had no power to render judgment.’’ (Citation omitted;
internal quotation marks omitted.)
The state argues, and we agree, that the defendant
had the ability to commence a petition for a writ of
habeas corpus at any time that he was in custody on
the assault charge in issue. The defendant claims that
he did not know that he would be removed from the
U visa wait list during some or all of the time he was
in custody as a result of the assault conviction, and
that an action brought prior to this denial of his request
for discretionary relief would not be ‘‘ripe . . . .’’ There
can be no doubt, however, that the defendant would
have had the ability to contest the effectiveness of coun-
sel and the validity of his plea in a habeas action even
if removal from the U visa wait list was not imminent.
In State v. Stephenson, supra, 154 Conn. App. 589, itself,
‘‘[t]he record [did] not reflect that any adverse immigra-
tion consequences [had] yet occurred’’ by the time the
defendant was no longer in custody on the sentence in
issue, and we held that the defendant could have
brought an action seeking a writ of habeas corpus. Id.,
592; see also State v. James, 139 Conn. App. 308, 318,
57 A.3d 366 (2012) (ineffective assistance of counsel
claim regarding possible immigration consequences
would have been more appropriately raised in habeas
corpus proceeding, even though facts did not indicate
that removal proceedings had been initiated). The issue
is not whether the defendant would have been success-
ful in pursuing a timely action, but whether the remedy
was available to him. During the entire period of his
custody pursuant to the sentence in question, he was
subject to adverse immigration consequences.
There is, then, no meaningful distinction between
this case and State v. Stephenson, supra, 154 Conn.
App. 587. In both cases, the defendant had a remedy
of habeas corpus available to him, in which he could
challenge the effectiveness of counsel in the plea pro-
cess, and in both cases the opportunity vanished when
custody pursuant to the sentence in question termi-
nated. Stephenson clearly holds that the prior availabil-
ity of the writ of habeas corpus defeats the jurisdiction
of the trial court to entertain a petition for a writ of
error coram nobis. Id., 592.4
The judgment is affirmed.
In this opinion the other judges concurred.
1
In its initial brief to this court, the state claimed that this appeal was
moot in light of State v. Aquino, 279 Conn. 293, 901 A.2d 1194 (2006). After
this appeal was argued orally in this court, the Supreme Court issued its
opinion in State v. Jerzy G., 326 Conn. 206, 162 A.3d 692 (2017). We ordered
supplemental briefing addressing the effect of Jerzy G. on this appeal. Both
parties urged that, in light of the intervening authority, this case was not
moot. Because the underlying circumstances of this case are strikingly
similar to those of Jerzy G., we agree with the parties and hold that the
present appeal is not moot. As in Jerzy G., but unlike in Aquino, the record
clearly established the reason for the defendant’s deportation. See State v.
Jerzy G., supra, 223; State v. Aquino, supra, 298. Further, there was in Jerzy
G. and in the present case a reasonable possibility that the defendant would
face prejudicial collateral consequences in that the ‘‘pending criminal charge
against the defendant could be a significant factor in’’ determining whether
the defendant could reenter the country. State v. Jerzy G., supra, 223–24.
2
The record before us indicates that on April 21, 2009, a federal immigra-
tion judge denied the defendant’s requests for further continuance of pre-
viously initiated proceedings and for voluntary departure. In re Pawel
Sienkiewicz, No. A089 013 624, 2009 WL 3713235, *1 (B.I.A. October 20,
2009), aff’g No. A089 013 624 (Immig. Ct. Hartford, Conn. April 21, 2009).
On October 20, 2009, the Board of Immigration Appeals (board) dismissed
the defendant’s appeal of that decision. Id. On November 17, 2010, the United
States Court of Appeals for the Second Circuit denied the defendant’s request
for review of the board’s order and vacated any stay of removal that had
been issued. Sienkiewicz v. Holder, 400 Fed. Appx. 599, 599–600 (2d Cir.
2010); see also Sienkiewicz v. Lynch, Docket No. 3:15-CV-1871 (VAB), 2016
WL 901567 (D. Conn. March 9, 2016). At oral argument before this court, the
defendant’s attorney represented that the defendant has since been removed.
3
‘‘U visa’’ refers to subdivision (U) of the Immigration and Nationality
Act’s definition of ‘‘immigrant.’’ See 8 U.S.C. § 1101 (a) (15) (U) (2012). To
be eligible for a U visa, the alien must demonstrate that he is a victim of a
crime, has information regarding the crime, and ‘‘has been helpful, is being
helpful, or is likely to be helpful . . . [in] investigating or prosecuting crimi-
nal activity’’ and that ‘‘the criminal activity . . . violated the laws of the
United States or occurred in the United States . . . .’’ 8 U.S.C. § 1101 (a)
(15) (U) (i) (III) and (IV) (2012).
4
Perhaps recognizing the binding precedent of Stephenson, the defendant
has also urged us to overrule it. Consistent with this claim, the defendant
filed a motion requesting that this court hear the appeal en banc. We denied
the motion.