State v. Carter

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  STATE OF CONNECTICUT v. ANTHONY CARTER
                (AC 41656)
              DiPentima, C. J., and Alvord and Pellegrino, Js.

                                  Syllabus

The defendant, who had been convicted of the crimes of assault in the first
   degree, attempt to commit assault in the first degree, risk of injury to
   a child and criminal possession of a firearm, appealed to this court from
   the judgment of the trial court dismissing his motion to set aside the
   judgment of conviction. The court dismissed the defendant’s motion to
   set aside the judgment, filed in 2017, on the ground of collateral estoppel
   in that the defendant’s claim of ‘‘after-discovered fraud’’ on the court
   had already been considered and rejected multiple times before, including, most recently, when the trial court denied a motion to open and
   set aside the judgment he had filed in 2010, which alleged, inter alia,
   fraud concerning ballistics evidence. Alternatively, the court concluded
   that it lacked subject matter jurisdiction over the 2017 motion to set
   aside the judgment and that, even if the defendant could make out a
   cognizable fraud claim, no fraud exception exists to the finality of criminal judgments. Held that the defendant could not prevail on his claim
   that the trial court erred in dismissing his 2017 motion to set aside the
   judgment of conviction, as the defendant’s appeal was rendered moot
   because he failed to challenge all independent grounds for the court’s
   adverse ruling: although the defendant claimed that it was error for the
   trial court to find that it lacked subject matter jurisdiction over the 2017
   motion to set aside the judgment, he failed to challenge the court’s
   independent ground for dismissing the 2017 motion to set aside the
   judgment, namely, that the defendant’s claim was substantively the same
   as others he had made multiple times before, most recently in 2010,
   and, thus, was collaterally estopped, and, therefore, even if this court
   agreed with the defendant on the merits of his subject matter jurisdiction
   claim, there was no practical relief that could be afforded to him in
   light of the unchallenged collateral estoppel basis for the trial court’s
   dismissal; accordingly, the defendant’s claims were moot and this court
   was without subject matter jurisdiction over his appeal.
       Argued September 11—officially released November 5, 2019

                             Procedural History

  Substitute information charging the defendant with
the crimes of assault in the first degree, attempt to
commit assault in the first degree, risk of injury to a
child and criminal possession of a firearm, brought to
the Superior Court in the judicial district of Hartford
and tried to the jury before Mulcahy, J.; verdict and
judgment of guilty; thereafter, the court, Schuman, J.,
granted the state’s motion to dismiss the defendant’s
motion to set aside the judgment; subsequently, the
court, Schuman, J., denied the defendant’s motion for
reconsideration; thereafter, the court, Schuman, J., dismissed the defendant’s motion to set aside the judgment, and the defendant appealed to this court.
Appeal dismissed.
  Anthony Carter, self-represented, the appellant
(defendant).
   Lisa A. Riggione, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Richard J. Rubino, senior assistant state’s
attorney, for the appellee (state).
                          Opinion

   ALVORD, J. The self-represented defendant, Anthony
Carter, appeals from the trial court’s dismissal of his
motion to set aside a judgment of conviction imposed
on August 2, 2002. On appeal, the defendant claims that
(1) the prosecutor committed fraud by writing in the
state’s response to the defendant’s motion for reconsideration, dated June 2, 2017, that it was not ‘‘[t]he appropriate mechanism’’ to secure relief and that a ‘‘motion
for a new trial or a motion to set aside the judgment’’
would be; (2) the court’s determination that it lacked
subject matter jurisdiction over his motion to set aside
his judgment of conviction was erroneous; and (3) even
if the court did not err in its subject matter jurisdiction
determination, the state ‘‘[submitted] to the jurisdiction
of the court.’’ The state argues, in part, that because
the defendant fails to challenge all independent grounds
for the court’s adverse ruling, his appeal is rendered
moot. We agree with the state. Accordingly, we dismiss
the defendant’s appeal.1
   The following relevant facts are set forth in our decision from one of the defendant’s prior appeals. State
v. Carter, 

, 

 (2012), cert.
denied, 

, 

 (2013). ‘‘[T]he defendant’s prosecution arose from the terrible consequences of a drug turf war, in which a stray bullet fired
from the defendant’s gun struck and seriously injured
a seven year old girl. . . . Following a jury trial, the
defendant was convicted of assault in the first degree
in violation of General Statutes § 53a-59 (a) (5), attempt
to commit assault in the first degree in violation of
General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (5),
risk of injury to a child in violation of General Statutes
§ 53-21 (a) (1) and criminal possession of a firearm in
violation of General Statutes § 53a-217 (a) (1), and the
court rendered judgment accordingly. The court sentenced the defendant to a total effective term of twentyseven years incarceration.’’ (Internal quotation marks
omitted.) Id., 92.
   On June 20, 2017, the defendant filed a motion to set
aside the judgment.2 Therein, the defendant claimed
‘‘after-discovered fraud on the court.’’ (Internal quotation marks omitted.) In his memorandum of law in
support of the operative motion, the defendant
expounded ‘‘that the prosecution altered, concealed
and/or removed from the trial proceedings documents
prepared by the Hartford Police Department with purpose to impair its verity and availability, and that the
prosecution passed the altered document off to the
defense, representing it to be ‘[simply] a distance’ measurement, knowing it to be false.’’ On August 3, 2017,
the state moved to dismiss the operative motion,
arguing that the trial court lacked subject matter jurisdiction. The trial court, Schuman, J., granted the state’s
motion on October 30, 2017.3
   In the court’s ruling, it detailed part of the defendant’s
‘‘voluminous history’’ of postconviction litigation,
including a motion to open and set aside the judgment
of conviction filed in 2010. The defendant based his
2010 motion on ‘‘fraud concerning ballistics evidence
and reports prepared by the Hartford Police Department about that evidence.’’ (Internal quotation marks
omitted.) That motion was denied by the court, Gold,
J., on two grounds: (1) ‘‘the motion was filed well
beyond the four month period after the entry of the
criminal conviction and judgment’’; and (2) ‘‘the motion
was barred by collateral estoppel in that Judge Nazzaro
had rejected the same claim in the defendant’s third
habeas petition.’’4 Applying this history to the operative
motion, Judge Schuman concluded that the defendant’s
claim bore ‘‘only semantic differences from the defendant’s claim . . . raised in [the 2010] motion to open.’’
As that claim had already been considered and rejected
multiple times before, most recently by Judge Gold and
this court, the trial court concluded that it ‘‘necessarily
must grant the state’s motion to dismiss . . . .’’
   The court further concluded that, even if the defendant’s claim were to be treated as distinct from the
one he had raised in 2010, the operative motion still
warranted dismissal. First, the court cited to State v.
Carrillo Palencia, 

, 580–82, 

, cert. denied, 

, 

 (2016),
for the proposition that ‘‘absent a statute or rule to the
contrary, the Superior Court loses jurisdiction over the
defendant’s conviction at the time of sentencing,’’ a
principle that ‘‘applies to a postconviction ‘motion to
open judgment.’ ’’ The court stated that the defendant’s
motion to set aside the judgment was substantively the
same as a motion to open the judgment ‘‘and, therefore,
falls under the same rule.’’ Second, the court rejected
the defendant’s argument that, under Connecticut law,
there is a fraud exception to the general finality rule for
criminal judgments and that, even if such an exception
existed, the defendant’s claim was ‘‘too vague to label
it definitively as one of fraud on the court.’’
  The defendant filed the present appeal on May 17,
2018. In the defendant’s preliminary statement of issues,
he claimed that the trial court abused its discretion by
dismissing the operative motion after determining ‘‘it
did not have subject matter jurisdiction . . . .’’ In the
defendant’s appellate brief, he raises three claims,
which are set forth in the opening paragraph of this
decision. The defendant does not, however, claim that
the court’s collateral estoppel ruling was erroneous.5
   The state argues that even if the court ‘‘incorrectly
determined that it lacked jurisdiction to set aside the
judgment,’’ the court’s ruling ‘‘dismissing the [operative]
motion on the basis of collateral estoppel . . . stand[s]
unchallenged.’’ According to the state, the defendant’s
failure to challenge the court’s collateral estoppel ruling
renders moot his appeal under State v. Lester, 

, 

 (2017), leaving this court without
subject matter jurisdiction.
   ‘‘Mootness is a question of justiciability that must be
determined as a threshold matter because it implicates
[an appellate] court’s subject matter jurisdiction
. . . .’’ (Internal quotation marks omitted.) 

.
‘‘Because courts are established to resolve actual controversies, before a claimed controversy is entitled to
a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy
between or among the parties to the dispute . . . (2)
that the interests of the parties be adverse . . . (3) that
the matter in controversy be capable of being adjudicated by the judicial power . . . and (4) that the determination of the controversy will result in practical relief
to the complainant.’’ (Internal quotation marks omitted.) 

 citing State v. Nardini, 

, 111–12,

 (1982). ‘‘[I]t is not the province of appellate
courts to decide moot questions, disconnected from the
granting of actual relief or from the determination of
which no practical relief can follow. . . . In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or [the] defendant in any way.’’ (Emphasis omitted; internal quotation
marks omitted.) State v. Holley, 

, 

, cert. denied, 

, 

 (2017), cert. denied,        U.S.    , 

,

 (2018).
   In the present case, when the court dismissed the
operative motion, it relied on two independent grounds.
The court first concluded that the defendant’s claim
was substantively the same as others he made multiple
times before—most recently in 2010—and, thus, was
collaterally estopped. The court concluded, alternatively, that it lacked subject matter jurisdiction over
the operative motion, and that, even if the defendant
could make out a cognizable fraud claim, no fraud
exception exists to the finality of criminal judgments.
   On appeal, the defendant claims that it was error for
the court to find it lacked subject matter jurisdiction
over the operative motion because ‘‘a trial court,
whether civil or criminal, never loses jurisdiction over
a judgment obtained by fraud.’’ The defendant did not,
however, claim that the court’s reliance on collateral
estoppel was erroneous. Thus, even if we were to agree
with the defendant on the merits of his subject matter
jurisdiction claim, we would be incapable of providing
him any practical relief in light of the unchallenged
collateral estoppel basis for the court’s dismissal. See
State v. 

 324 Conn. 527–28 (dismissing
as moot defendant’s appeal of trial court’s granting of
state’s motion in limine because there were ‘‘independent bases for the trial court’s exclusion of the evidence
. . . that the defendant [had] not challenged in [his]
appeal’’); State v. 

 174 Conn. App. 506–507
(dismissing defendant’s appeal as moot with respect to
suppression of evidence claim because defendant did
not challenge independent, verbal consent basis for
upholding trial court’s decision). Therefore, the defendant’s claims are moot, and we are without subject
matter jurisdiction over his appeal.
      The appeal is dismissed.
      In this opinion the other judges concurred.
  1
    Because we dismiss the defendant’s claims as moot, we do not reach
the merits of his claims.
  2
    For ease of reference, the defendant’s motion to set aside the judgment
will hereinafter be referred to as the operative motion.
  3
    The defendant filed a motion to reconsider the dismissal of the operative
motion. That motion was denied by Judge Schuman on November 21, 2017.
  4
    Judge Gold’s decision was affirmed by this court. State v. 

.
  5
    At oral argument before this court, the defendant argued that, because
the trial court sua sponte raised the issue of collateral estoppel in its ruling
on the operative motion, the defendant had no notice of that issue in order
to make an adequate record. Because the defendant advanced this claim
for the first time during oral argument, we decline to consider it. See State v.
Marcelino S., 

, 592 n.4, 

 (2009) (‘‘[a]ppellate
courts generally do not consider claims raised for the first time at oral
argument’’), cert. denied, 

, 

 (2010).