State v. Michael F.

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STATE OF CONNECTICUT v. MICHAEL F.*
(AC 43485)
(AC 43504)
Bright, C. J., and Elgo and Sheldon, Js.
Syllabus
The defendant, who had previously been convicted on pleas of guilty of
various crimes in three separate cases, filed motions to open each of
the disposed criminal cases in 2019. The defendant had been sentenced
in 2010 and in 2013 in the underlying criminal cases. The trial court
rendered judgments dismissing the motions to open, from which the
defendant filed two appeals to this court. Held:
1. The trial court correctly determined that it lacked jurisdiction to consider
the defendant’s motions to open; under the well established common-
law rule, the court lost jurisdiction following the imposition of the
defendant’s sentence in each of the underlying criminal cases.
2. The defendant’s claim that the trial court abused its discretion when it
failed to retain jurisdiction to determine the motions to open was without
merit: insofar as the defendant claimed that the court had discretion
to exercise jurisdiction in the present case, a court’s subject matter
jurisdiction is not a matter of discretion, and, as a matter of law, there
simply was no jurisdiction for the court to retain; moreover, insofar as
the defendant suggested that an allegation of ineffective assistance of
counsel provided a trial court with continuing jurisdiction over a criminal
case, this court recently rejected that proposition in State v. Jin (179
Conn. App. 185).
3. The trial court did not violate the defendant’s right to due process when
it dismissed his motions to open without providing him notice and an
opportunity to be heard on the issue of jurisdiction, the procedures used
being adequate to prevent the erroneous deprivation of the defendant’s
private interest in exercising his right to redress his grievances: given
the defendant’s claims before the trial court, there was no risk of an
erroneous deprivation of any liberty interest the defendant possessed
by the court proceeding as it did, the court having explained to the
defendant that his motions to open had been filed in disposed cases
and the court lacked jurisdiction to consider them, and the defendant
acknowledged the court’s ruling, did not request to be heard further
and instead had a discussion with the court about the appointment of
appellate counsel; moreover, by exercising his statutory right to appeal
from the court’s judgments, and because this court’s standard of review
is plenary, the defendant was afforded a meaningful opportunity to make
his assertions and objections to any contrary arguments made by the
state regarding the jurisdictional issue.
Argued September 23—officially released November 9, 2021
Procedural History
Substitute information, in the first case, charging the
defendant with the crimes of assault in the third degree
and reckless endangerment in the first degree, brought
to the Superior Court in the judicial district of New
Haven, geographical area number twenty-three, where
the defendant was presented to the court, Hadden, J.,
on a plea of guilty; judgment of guilty; information, in
the second case, charging the defendant with the crimes
of criminal violation of a protective order and criminal
trespass in the first degree, brought to the Superior
Court in the judicial district of New Haven, geographical
area number twenty-three, where the defendant was
presented to the court, Licari, J., on a plea of guilty
to criminal violation of a protective order; judgment of
guilty; and substitute information, in the third case,
charging the defendant with the crimes of assault in
the third degree and conspiracy to commit assault in
the second degree, brought to the Superior Court in
the judicial district of New Haven, geographical area
number twenty-three, where the defendant was pre-
sented to the court, Kamp, J., on a plea of guilty to
assault in the third degree; judgment of guilty; there-
after, the court, Cradle, J., dismissed the defendant’s
motion to open in each case, and the defendant filed two
appeals to this court, which consolidated the appeals.
Affirmed.
Deborah G. Stevenson, assigned counsel, for the
appellant in both appeals (defendant).
Sarah Hanna, senior assistant state’s attorney, with
whom were Melissa Patterson, senior assistant state’s
attorney, and, on the brief, Patrick Griffin, state’s attor-
ney, and Alexandra Arroyo, special deputy assistant
state’s attorney, for the appellee in both appeals (state).
Opinion
BRIGHT, C. J. In these consolidated appeals, the
defendant, Michael F., appeals from the judgments of
the trial court dismissing for lack of subject matter
jurisdiction his motions to open three disposed criminal
cases. On appeal, the defendant claims that the court
(1) improperly concluded that it lacked jurisdiction to
consider the motions, (2) abused its discretion in failing
to retain jurisdiction to rule on the motions, and (3)
violated his right to due process when it dismissed the
motions without providing him notice and an opportu-
nity to be heard on the issue of jurisdiction. We affirm
the judgments of the trial court.
The following procedural history is relevant to the
defendant’s claims. On April 25, 2008, in Docket No.
CR-XX-XXXXXXX-S (2008 case), the defendant was con-
victed of two counts of assault in the third degree,
and the trial court sentenced him to a total effective
sentence of eleven months of imprisonment, execution
fully suspended, with two years of conditional dis-
charge. In June, 2009, the defendant was arrested in
connection with a physical altercation with the mother
of his child and charged with assault in the third degree
and reckless endangerment in the first degree in Docket
No. CR-XX-XXXXXXX-S (2009 case). The trial court, Dami-
ani, J., entered a protective order prohibiting the defen-
dant from having any contact with the victim.
On October 16, 2009, pursuant to a plea agreement,
the defendant pleaded guilty under the Alford doctrine1
to one count each of assault in the third degree and
reckless endangerment in the first degree in the 2009
case. On the same date, the defendant admitted to vio-
lating his conditional discharge stemming from the 2008
case, and the court released him on a written promise
to appear in each case, conditioned on the defendant
entering and completing the Evolve program.2 The court
explained that, if the defendant successfully completed
the program, the state would recommend that he
receive a fully suspended sentence. If, however, the
defendant failed to abide by the conditions of his release
or to complete the Evolve program, he would be
exposed to a total effective sentence of two years of
imprisonment.
Prior to completing the Evolve program, the defen-
dant was arrested and charged with criminal violation
of a protective order and criminal trespass in the first
degree in Docket No. CR-XX-XXXXXXX-S (2010 case).
Because the new arrest would violate the plea agree-
ment in the 2009 case and expose the defendant to two
years of imprisonment, the court held a hearing on
March 23, 2010, pursuant to State v. Stevens, 278 Conn.
1, 11–13, 895 A.2d 771 (2006), to determine whether
probable cause existed to support his arrest. At the
conclusion of the hearing, the court found that the
defendant violated the conditions of his plea agreement
and continued the matter for sentencing.
On May 21, 2010, the court, Licari, J., terminated the
defendant’s conditional discharge in the 2008 case and,
in the 2009 case, imposed a total effective sentence of
two years of imprisonment, execution fully suspended,
with two years of conditional discharge. On that same
date, in the 2010 case, the defendant pleaded guilty,
under the Alford doctrine, to criminal violation of a
protective order, and the court sentenced him to an
unconditional discharge.
In July, 2013, the defendant was arrested and charged
with assault in the third degree and conspiracy to com-
mit assault in the second degree in Docket No. CR-
XX-XXXXXXX-S (2013 case). On November 15, 2013, the
defendant pleaded guilty under the Alford doctrine to
assault in the third degree, and the court, Kamp, J.,
sentenced him to one year imprisonment, execution
fully suspended, with two years of probation. On
December 3, 2014, the court, Keegan, J., terminated the
defendant’s probation early.
In January, 2019, more than five years after his proba-
tion was terminated in the 2013 case and more than
seven years after his sentences had been served in the
2008, 2009, and 2010 cases, the defendant filed motions
to open the 2009, 2010, and 2013 disposed cases, alleg-
ing, inter alia, ineffective assistance of counsel in each
of those cases due to an alleged conflict of interest.
On January 11, 2019, the court, Cradle, J., denied the
motions on the papers without stating the reasons for
its decisions.
The defendant thereafter filed applications for waiver
of fees, costs and expenses and appointment of counsel
on appeal in each of the three cases. On June 3, 2019,
Judge Cradle held a hearing on the applications at which
she addressed the defendant as follows: ‘‘[Your
motions] were motions to open disposed cases. And it
looks like on the papers this court denied the motion[s]
. . . . The court checked the box that the motion is
denied. I just want to note for the record . . . the rea-
son why I denied the motions is because . . . I did not
feel that this court had jurisdiction to hear these specific
motions, okay. So technically, the matter should have
been dismissed by the court, not denied. So I’ll vacate
my prior order[s] denying [them] and dismiss them for
lack of jurisdiction.’’
The court then asked the defendant questions about
his fee waiver application. After granting the fee waiver,
the court returned to the motions to open and stated:
‘‘The prior orders [are] vacated. The . . . matter
should have been dismissed for lack of jurisdiction as
opposed to just stating it was denied, okay. That was
the basis for the court’s denial of the motion. But in
retrospect it should have been a dismissal, okay.’’ The
defendant responded: ‘‘Yes, thank you.’’ The court then
had a further discussion with the defendant about the
appointment of counsel and granted the defendant’s
application in the 2013 case only and appointed counsel
to represent him on appeal. On June 7, 2019, the court
held another hearing to address the two applications
filed by the defendant in the 2009 and 2010 cases, which
the court had overlooked at the previous hearing. The
court granted the applications and appointed counsel
to represent him on appeal in those cases as well. These
appeals followed.3
I
We begin by setting forth our standard of review.
Although we review a court’s ruling on a motion to
open a judgment for abuse of discretion; see Disturco
v. Gates in New Canaan, LLC, 204 Conn. App. 526,
532, 253 A.3d 1033 (2021); the dispositive issue in this
appeal is whether the court properly concluded that it
lacked jurisdiction over the defendant’s motions to
open. The issue of subject matter jurisdiction presents
a question of law over which our review is plenary. See
State v. Smith, 150 Conn. App. 623, 634, 92 A.3d 975,
cert. denied, 314 Conn. 904, 99 A.3d 1169 (2014).
On appeal, the defendant claims that the court
improperly determined that it lacked jurisdiction to con-
sider his motions to open. The state argues that the
trial court properly determined that it lacked subject
matter jurisdiction over the motions because the defen-
dant had been sentenced already in each of the underly-
ing criminal cases and there is no applicable constitu-
tional or statutory grant of jurisdiction that permits
the court to retain or exercise jurisdiction over the
defendant’s judgments of conviction after he has been
sentenced. We agree with the state.
‘‘The Superior Court is a constitutional court of gen-
eral jurisdiction. In the absence of statutory or constitu-
tional provisions, the limits of its jurisdiction are deline-
ated by the common law. . . . It is well established
that under the common law a trial court has the discre-
tionary power to modify or vacate a criminal judgment
before the sentence has been executed. . . . This is so
because the court loses jurisdiction over the case when
the defendant is committed to the custody of the [C]om-
missioner of [C]orrection and begins serving the sen-
tence. . . .
‘‘[In other words] the jurisdiction of the sentencing
court terminates once a defendant’s sentence has
begun, and, therefore, that court may no longer take
any action affecting a defendant’s sentence unless it
expressly has been authorized to act. . . . This princi-
ple is memorialized in Practice Book § 39-26, which
provides: A defendant may withdraw his or her plea of
guilty or nolo contendere as a matter of right until the
plea has been accepted. After acceptance, the judicial
authority shall allow the defendant to withdraw his or
her plea upon proof of one of the grounds in [Practice
Book §] 39-27. A defendant may not withdraw his or
her plea after the conclusion of the proceeding at which
the sentence was imposed. . . .
‘‘Thus, although this court has recognized the general
principle that there is a strong presumption in favor
of jurisdiction . . . in criminal cases, this principle is
considered in light of the common-law rule that, once
a defendant’s sentence has begun . . . th[e] court may
no longer take any action affecting a defendant’s sen-
tence unless it expressly has been authorized to act.’’
(Citations omitted; emphasis in original; internal quota-
tion marks omitted.) State v. Ramos, 306 Conn. 125,
133–35, 49 A.3d 197 (2012); cf. State v. Waterman, 264
Conn. 484, 491, 825 A.2d 63 (2003) (‘‘[i]t is well estab-
lished that under the common law a trial court has
the discretionary power to modify or vacate a criminal
judgment before the sentence has been executed’’
(emphasis added; internal quotation marks omitted)).
The defendant attempts to avoid this clear rule of
law by arguing that there is a presumption in favor
of courts exercising jurisdiction and by analogizing to
statutes and rules of practice, including those applying
solely to civil proceedings, which are simply inapplica-
ble to the defendant’s motions to open in these cases.
Recently, in State v. McCoy, 331 Conn. 561, 578–84, 206
A.3d 725 (2019), our Supreme Court rejected arguments
similar to those raised by the defendant. In particular,
the court reviewed the history of the common-law rule
limiting the trial court’s jurisdiction in criminal cases
and noted two anomalies in its previous decisions. Spe-
cifically, in State v. Wilson, 199 Conn. 417, 437, 513 A.2d
620 (1986), our Supreme Court suggested that the civil
rule allowing trial courts to open or set aside civil judg-
ments within four months of judgment applies to crimi-
nal cases. In addition, in State v. Myers, 242 Conn. 125,
136, 698 A.2d 823 (1997), the court, citing its decision
in Wilson, held that ‘‘the trial court retained jurisdiction
to entertain the motion for a new trial after sentencing
because it could have opened the judgment.’’ (Footnote
omitted.) See State v. McCoy, supra, 331 Conn. 583.
In McCoy, the court explained that, ‘‘given the long
and consistent history of our courts applying the tradi-
tional rule that jurisdiction is lost upon the execution
of a sentence, we cannot conclude that Myers reflects
a retreat from that common-law rule. Instead, we
acknowledge that Myers and Wilson are anomalies in
this court’s case law, and we take this opportunity to
clarify and reiterate, as we have consistently done since
Myers, that a trial court loses jurisdiction once the
defendant’s sentence is executed, unless there is a con-
stitutional or legislative grant of authority. . . . Thus,
any reliance on Myers by the defendant to extend the
jurisdiction of the trial court beyond the point at which
his sentence was executed is misplaced.’’4 (Citation
omitted.) State v. McCoy, supra, 331 Conn. 586–87. The
court in McCoy reaffirmed in the strongest terms possi-
ble that in the absence of a specific constitutional or
statutory grant of jurisdiction a trial court loses subject
matter jurisdiction once a defendant is sentenced. Id.In the present case, the defendant cannot point to
such a specific grant of jurisdiction because none exists.
Thus, under the well established common-law rule, the
court lost jurisdiction after it sentenced the defendant
on May 21, 2010, in the 2009 and 2010 cases, and on
November 13, 2013, in the 2013 case. See id., 586–87;
see also State v. Jin, 179 Conn. App. 185, 193–94, 179
A.3d 266 (2018) (‘‘We iterate that following the imposi-
tion of the defendant’s sentence on January 12, 2016,
the court was divested of jurisdiction. Accordingly, it
was without the power to consider the defendant’s
claim of ineffective assistance of counsel that was
raised in the . . . motion to open.’’).
Accordingly, we conclude that the court properly
determined that it lacked jurisdiction to consider the
defendant’s motions to open because the court lost
jurisdiction following the imposition of the defendant’s
sentence in each of the underlying criminal cases.
II
The defendant also claims that the court ‘‘abused
its discretion when it failed to retain jurisdiction to
determine the motions to open . . . on their merits.’’
He argues that ‘‘when an action came before the [court]
. . . alleging that a just defense existed, in whole or
part, that his counsel had a conflict of interest, resulting
in the denial of the defendant’s constitutional right to
counsel, the [court] had the statutory authority not only
to retain jurisdiction, but to consider the motions on
the merits and to grant a new trial.’’ This claim is with-
out merit.
Insofar as the defendant claims that the court had
discretion to exercise jurisdiction in the present case,
we note that a court’s subject matter jurisdiction is not
a matter of discretion. See Mirabal v. Mirabal, 30 Conn.
App. 821, 825, 622 A.2d 1037 (1993) (‘‘[s]ubject matter
jurisdiction . . . cannot be conferred on the court by
waiver or consent of the parties, nor can the court
confer jurisdiction on itself’’). For the reasons set forth
in part I of this opinion, as a matter of law, there simply
was no jurisdiction for the court to ‘‘retain.’’ Similarly,
insofar as the defendant suggests that an allegation of
ineffective assistance of counsel provides a trial court
with continuing jurisdiction over a criminal case, this
court recently has rejected this proposition. See State
v. Jin, supra, 179 Conn. App. 192–94 (concluding that
trial court lacked jurisdiction to consider defendant’s
ineffective assistance of counsel claim raised in motion
to open because court divested of jurisdiction following
imposition of sentence).
III
Finally, we address the defendant’s claim that his
right to due process was violated when the trial court
dismissed his motions to open without providing him
notice and an opportunity to be heard on the issue of
jurisdiction. The defendant argues that he ‘‘has a vested
liberty interest in his right to redress his grievances’’
pursuant to the first amendment to the United States
constitution and article first, §§ 10 and 14, of the Con-
necticut constitution.5 He argues that ‘‘[t]he right to due
process encompassed the right to make his assertions
that the court did have jurisdiction to hear his motions,
and to make his objections to any contrary arguments
made by the state or by the court’’ before the court
ruled on the motions.
In response, the state argues that the defendant had
an opportunity to address the issue of subject matter
jurisdiction at the hearing on his fee waiver applications
on June 3, 2019, when the court, after noting that his
motions were directed to previously disposed cases,
vacated its rulings denying the motions to open and
dismissed the motions for lack of subject matter juris-
diction. Alternatively, the state argues that the defen-
dant has failed to demonstrate that he was entitled to
any further process than that already afforded to him.
In his reply brief, the defendant argues that he was
not provided a meaningful opportunity to be heard at
the June 3, 2019 hearing because he was not notified
that the jurisdictional issue would be addressed at that
time and because the hearing occurred only after the
court already had rendered its decision on his motions.
We conclude that the defendant’s right to due process
was not violated in the present case.
‘‘We resolve due process claims pursuant to Mathews
v. Eldridge, 424 U.S. 319, 334–35, 96 S. Ct. 893, 47 L.
Ed. 2d 18 (1976). . . . Due process . . . is not a tech-
nical conception with a fixed content unrelated to time,
place and circumstances. . . . Rather, the [s]pecific
dictates of due process generally require consideration
of three distinct factors: [f]irst, the private interest that
will be affected by the official action; second, the risk
of an erroneous deprivation of such interest through
the procedures used, and the probable value, if any,
of additional or substitute procedural safeguards; and
finally, the [state’s] interest, including the function
involved and the fiscal and administrative burdens that
the additional or substitute procedural requirement
would entail. . . .
‘‘When determining what procedures are constitu-
tionally required, we must bear in mind that [t]he
essence of due process is the requirement that a person
in jeopardy of a serious loss [be given] notice of the
case against him and [an] opportunity to meet it. . . .
The elements of notice and opportunity, however, do
not require a judicial-type hearing in all circumstances.
. . . So long as the procedure afforded adequately pro-
tects the individual interests at stake, there is no reason
to impose substantially greater burdens on the state
under the guise of due process.’’ (Citations omitted;
internal quotation marks omitted.) Taylor v. Commis-
sioner of Correction, 134 Conn. App. 405, 411–12, 40
A.3d 336 (2012), appeal dismissed, 312 Conn. 215, 91
A.3d 898 (2014).
In the present case, given the defendant’s claims
before the trial court, there was no risk of an erroneous
deprivation of any liberty interest the defendant pos-
sessed by the court proceeding as it did. At the June
3, 2019 hearing, the court explained to the defendant
that his motions to open had been filed in disposed
cases, the court lacked jurisdiction to consider the
motions, and the court therefore was vacating its prior
order denying the motions and was dismissing them
instead. The defendant acknowledged the court’s ruling,
did not request to be heard further, and instead had a
discussion with the court about the appointment of
appellate counsel. Given that the court clearly was with-
out jurisdiction to hear the defendant’s motions, we
cannot say that the court’s interaction with the defen-
dant deprived him of due process. Furthermore, by
exercising his statutory right to appeal from the court’s
judgments, and because our standard of review is ple-
nary, the defendant has been afforded a meaningful
opportunity ‘‘to make his assertions that the court did
have jurisdiction to hear his motions, and to make his
objections to any contrary arguments made by the
state’’ regarding the jurisdictional issue.
Accordingly, we conclude that the procedures used
in the present case have been adequate to prevent the
erroneous deprivation of the defendant’s private inter-
est in exercising his right to redress his grievances.
The judgments are affirmed.
In this opinion the other judges concurred.
* In accordance with federal law; see 18 U.S.C. § 2265 (d) (3) (2018); we
decline to identify any party protected or sought to be protected under a
protective order or a restraining order that was issued or applied for, or
others through whom that party’s identity may be ascertained.
1
‘‘Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed.
2d 162 (1970), a criminal defendant is not required to admit his guilt, but
consents to being punished as if he were guilty to avoid the risk of proceed-
ing to trial. . . . The entry of a guilty plea under the Alford doctrine carries
the same consequences as a standard plea of guilty. By entering such a plea,
a defendant may be able to avoid formally admitting guilt at the time of
sentencing, but he nonetheless consents to being treated as if he were guilty
with no assurances to the contrary.’’ (Emphasis in original; internal quotation
marks omitted.) State v. Simpson, 329 Conn. 820, 824 n.4, 189 A.3d 1215(2018).
2
The Evolve program is a behavior modification program for male offend-
ers of domestic violence. See State v. Brown, 145 Conn. App. 174, 177, 75
A.3d 713, cert. denied, 310 Conn. 936, 79 A.3d 890 (2013).
3
On October 10, 2019, the defendant filed his first appeal, Docket No. AC
43485, challenging the judgment dismissing his motion to open in the 2013
case. On October 16, 2019, the defendant filed a second appeal, Docket No.
AC 43504, challenging the judgments dismissing his motions to open in the
2009 and 2010 cases. Thereafter, this court granted the defendant’s motion
to consolidate the appeals for briefing and argument.
4
Although he acknowledges our Supreme Court’s decision in McCoy, the
defendant nevertheless cites State v. Wilson, supra, 199 Conn. 417, and holds
it out as support for his contention that ‘‘in certain circumstances, even after
a defendant’s sentence begins, or ends, the court does retain jurisdiction.’’
In doing so, the defendant ignores the fact that, in McCoy, the Supreme
Court labeled Wilson an anomaly.
5
The first amendment to the United States constitution provides in rele-
vant part: ‘‘Congress shall make no law . . . abridging the freedom of
speech . . . .’’
Article first, § 10, of the Connecticut constitution provides: ‘‘All courts
shall be open, and every person, for an injury done to him in his person,
property or reputation, shall have remedy by due course of law, and right
and justice administered without sale, denial or delay.’’
Article first, § 14, of the Connecticut constitution provides: ‘‘The citizens
have a right, in a peaceable manner, to assemble for their common good,
and to apply to those invested with the powers of government, for redress of
grievances, or other proper purposes, by petition, address or remonstrance.’’