214 Conn. App. 121 - State v. Guild

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   STATE OF CONNECTICUT v. STEPHEN GUILD
                 (AC 43868)
                       Moll, Clark and DiPentima, Js.

                                  Syllabus

The defendant acquittee, who previously had been found not guilty of certain
   crimes by reason of mental disease or defect, appealed to this court
   from the trial court’s denial of his motion to dismiss the state’s petition,
   filed pursuant to statute (§ 17a-593), to extend his commitment to the
   jurisdiction of the Psychiatric Security Review Board. On appeal, the
   acquittee claimed that this court had subject matter jurisdiction over
   his appeal because the trial court’s order denying his motion satisfied
   at least one prong of the finality test set forth in State v. Curcio (

191 Conn. 27

). Held that the trial court’s order denying the acquittee’s motion
to dismiss the state’s petition did not satisfy either prong of Curcio and
was not a final judgment for purposes of appeal: the order did not
terminate a separate and distinct proceeding for purposes of the first
prong of Curcio as the order involved a constitutional challenge that
was inextricably intertwined with the adjudication of the petition and,
as a result, the proceedings concerning that order were not wholly
severable from the merits of the state’s petition; moreover, the order
did not result in the irreparable loss of a claimed right if immediate
appellate review was not afforded, required to satisfy the second prong
of Curcio, as the petition remained pending before the trial court, the
acquittee’s claimed right to discharge from the board’s jurisdiction on
the basis of his right to equal protection pursuant to the United States
constitution was still intact and further proceedings could still affect the
acquittee’s claimed right; accordingly, this court lacked subject matter
jurisdiction over the appeal.
Argued December 7, 2021—officially released July 26, 2022

Procedural History

Petition for an order extending the defendant’s commitment to the Psychiatric Security Review Board,
brought to the Superior Court in the judicial district
of Middlesex, where the court, Keegan, J., denied the
defendant’s motion to dismiss the petition, and the
defendant appealed to this court. Appeal dismissed.
Richard E. Condon, Jr., senior assistant public
defender, for the appellant (defendant).
Timothy F. Costello, senior assistant state’s attorney,
with whom, on the brief, were Michael A. Gailor, state’s
attorney, and Russell C. Zentner, senior assistant state’s
attorney, for the appellee (state).
Opinion

MOLL, J. The defendant, Stephen Guild (acquittee),1
appeals from the judgment of the trial court denying
his motion to dismiss the state’s petition, filed pursuant
to General Statutes § 17a-593 (c),2 to continue his commitment to the jurisdiction of the Psychiatric Security
Review Board (board) beyond his maximum term of
commitment. On appeal, as a threshold matter, the
acquittee claims that this court has subject matter jurisdiction over this appeal because the trial court’s denial
of his motion to dismiss satisfies at least one prong of
the finality test set forth in State v. Curcio,

191 Conn. 27, 31

463 A.2d 566

 (1983). We conclude that the trial
court’s denial of the acquittee’s motion to dismiss is
not a final judgment for appeal purposes under either
prong of Curcio and, accordingly, dismiss the
acquittee’s appeal for lack of subject matter jurisdiction.3
   The following facts, as recited by the trial court, and
procedural history are relevant to our resolution of this
appeal. On October 9, 1997, the acquittee, who was
angry because he believed that his father had sexually
abused him, attacked his father with a folding knife and
a sword, causing critical physical injuries. The acquittee
was subsequently charged with attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-
54a and assault in the first degree in violation of General
Statutes § 53a-59 (a) (1).4 He was acquitted of these
charges as a result of mental disease or defect and, on
March 5, 1999, was committed to the jurisdiction of the
board for a period not to exceed twenty years, i.e.,
March 5, 2019. Notably, the acquittee was granted conditional release on June 17, 2016, and subsequently discharged from Connecticut Valley Hospital on conditional release on September 13, 2016.
   On November 23, 2018, the state petitioned the court
for an order of continued commitment pursuant to
§ 17a-593 (c) (petition) on the ground that the acquittee
remains a person with psychiatric disabilities to the
extent that his discharge at the expiration of his maximum term of commitment would constitute a danger
to himself or others.5 On November 29, 2018, the court,
Keegan, J., ordered that the petition be forwarded to
the board for a report to be filed with the court in
accordance with § 17a-593 (d).6 On or about February
14, 2019, the board submitted its report on the petition,
recommending that the court grant the petition for a
period not to exceed three years.
  On March 5, 2019, the acquittee filed a motion to
dismiss the petition and a memorandum of law in support of that motion on the basis that his continued
commitment to the board pursuant to § 17a-593 (c),
as applied to him, violates his rights under the equal
protection clause of the fourteenth amendment to the
United States constitution. See footnote 3 of this opinion. On June 20, 2019, the court heard oral argument
on the acquittee’s motion to dismiss. Thereafter, both
parties filed posthearing briefs.
   On December 2, 2019, the court issued a corrected
revised memorandum of decision, dated November 26,
2019, denying the acquittee’s motion to dismiss.7 In its
decision, the court concluded that § 17a-593, as applied
to the acquittee, did not violate his right to equal protection under the fourteenth amendment to the United
States constitution. This appeal followed.8
   On appeal, as a threshold matter, the acquittee claims
that we have subject matter jurisdiction over this appeal
because the court’s denial of his motion to dismiss
satisfies at least one prong of the finality test set forth
in State v.

Curcio, supra,

191 Conn. 31

. The state argues
that neither prong of Curcio is satisfied, and, therefore,
we lack subject matter jurisdiction over this appeal.
We agree with the state.
   We begin by setting forth the relevant standard of
review and principles of law. ‘‘The lack of a final judgment implicates the subject matter jurisdiction of an
appellate court to hear an appeal. A determination
regarding . . . subject matter jurisdiction is a question
of law [over which we exercise plenary review].’’ (Internal quotation marks omitted.) Brown & Brown, Inc. v.
Blumenthal,

288 Conn. 646

, 651–52,

954 A.2d 816

 (2008).
   ‘‘[T]here is no constitutional right to an appeal.’’
Palmer v. Friendly Ice Cream Corp.,

285 Conn. 462, 466

940 A.2d 742

 (2008). ‘‘The legislature has enacted
General Statutes § 52-263,9 which limits the right of
appeal to those appeals filed by aggrieved parties on
issues of law from final judgments. Unless a specific
right to appeal otherwise has been provided by statute,
we must always determine the threshold question of
whether the appeal is taken from a final judgment
before considering the merits of the claim.’’ (Footnote
in original; internal quotation marks omitted.) Id.,
466–67; see also State v. Bemer,

339 Conn. 528

, 536–37,

262 A.3d 1

 (2021) (‘‘[B]ecause our jurisdiction over
appeals . . . is prescribed by statute, we must always
determine the threshold question of whether the appeal
is taken from a final judgment before considering the
merits of the claim . . . . It is well established that
[t]he principal statutory prerequisite to invoking our
jurisdiction is that the ruling from which an appeal
is sought must constitute a final judgment.’’ (Internal
quotation marks omitted.)).
   As a general matter, ‘‘the denial of a motion to dismiss
is an interlocutory ruling and, therefore, is not a final
judgment for purposes of appeal.’’ (Internal quotation
marks omitted.) Conboy v. State,

292 Conn. 642

, 645
n.5,

974 A.2d 669

 (2009). In State v.

Curcio, supra,

191 Conn. 27

, our Supreme Court articulated the following
rule: ‘‘In both criminal and civil cases . . . we have
determined certain interlocutory orders and rulings of
the Superior Court to be final judgments for purposes
of appeal. An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action
terminates a separate and distinct proceeding, or (2)
where the order or action so concludes the rights of
the parties that further proceedings cannot affect
them.’’

Id., 31

. ‘‘Unless the appeal is authorized under
the Curcio criteria, absence of a final judgment is a
jurisdictional defect that [necessarily] results in a dismissal of the appeal.’’ (Internal quotation marks omitted.) State v. Fielding,

296 Conn. 26, 38

994 A.2d 96

(2010). We address the applicability of each Curcio
prong in turn.
                             I
  The acquittee argues that the court’s denial of his
motion to dismiss is immediately appealable under Curcio’s first prong because, ‘‘[i]ndisputably, the proceedings on [his] motion to dismiss, predicated upon his
equal protection as applied claim to § 17a-593 (c), [are]
separate and distinct, in form and substance, from a
continued commitment proceeding on the merits.’’ This
argument fails.
   ‘‘The first prong of the Curcio test . . . requires that
the order being appealed from be severable from the
central cause of action so that the main action can
proceed independent of the ancillary proceeding. . . .
If the interlocutory ruling is merely a step along the
road to final judgment then it does not satisfy the first
prong of Curcio. . . . Obviously a ruling affecting the
merits of the controversy would not pass the first part
of the Curcio test. The fact, however, that the interlocutory ruling does not implicate the merits of the principal
issue at the trial . . . does not necessarily render that
ruling appealable. It must appear that the interlocutory
ruling will not impact directly on any aspect of the
[action].’’ (Internal quotation marks omitted.) Abreu v.
Leone,

291 Conn. 332, 339

968 A.2d 385

 (2009); see also
State v.

Bemer, supra,

339 Conn. 537

. ‘‘The question to
be asked is whether the main action could proceed
independent of the ancillary proceeding.’’ State v. Parker,

194 Conn. 650, 654

485 A.2d 139

 (1984).
   Here, it is evident that the order at issue did not,
under Curcio’s first prong, terminate a proceeding separate and distinct from the continued commitment proceedings in that such order involves a constitutional
challenge that is inextricably intertwined with the adjudication of the state’s petition. As a result, the proceedings concerning that order were not wholly severable
from the proceedings relating to the merits of the state’s
petition, as evidenced by the fact that those proceedings
could not advance and have not advanced during this
appeal. See State v.

Bemer, supra,

 339 Conn. 537–38;
Abreu v.

Leone, supra,

291 Conn. 339

; State v.

Parker, supra,

194 Conn. 654

. Because the order denying the
acquittee’s motion to dismiss was ‘‘merely a step along
the road to final judgment’’; (internal quotation marks
omitted) Abreu v.

Leone, supra, 339

; it does not constitute a final judgment for appeal purposes under the
first Curcio prong and is not the proper subject of this
appeal. See State v.

Parker, supra, 653

 (‘‘[o]bviously a
ruling affecting the merits of the controversy would not
pass the first part of the Curcio test’’).
  In sum, on the basis of the foregoing, we conclude
that the court’s order denying the acquittee’s motion
to dismiss the petition did not terminate a separate and
distinct proceeding for purposes of the first prong of
Curcio.
                            II
   The acquittee also argues that the court’s denial of
his motion to dismiss is immediately appealable under
Curcio’s second prong, i.e., the order results in the
irreparable loss of a claimed right if immediate appellate
review is not afforded. See State v.

Curcio, supra,

191 Conn. 31

. In support of this argument, the acquittee
contends that he has ‘‘raised a colorable claim that
continued commitment under § 17a-593 (c) is unconstitutional as applied to his circumstances. . . . As a matter of state law, [he] is entitled to immediate discharge
at the expiration of his maximum term of commitment,
absent continued commitment under § 17a-593 (c).’’
(Citation omitted.) We conclude that the second Curcio
prong does not apply.
‘‘The second prong of the Curcio test . . . permits
an appeal if the decision so concludes the rights of the
parties that further proceedings cannot affect them.
. . . That prong focuses on the nature of the right
involved. It requires the parties seeking to appeal to
establish that the trial court’s order threatens the preservation of a right already secured to them and that
that right will be irretrievably lost and the [parties]
irreparably harmed unless they may immediately
appeal. . . . One must make at least a colorable claim
that some recognized statutory or constitutional right
is at risk. . . . In other words, the [appellant] must do
more than show that the trial court’s decision threatens
him with irreparable harm. The [appellant] must show
that that decision threatens to abrogate a right that
he or she then holds. . . . The right itself must exist
independently of the order from which the appeal is
taken. . . .
‘‘The key to appellate jurisdiction under the second
prong of Curcio is not so much that the right is already
secured to the party; indeed, what is at issue in an
appeal is the effect of the challenged order on the scope
of the claimed right at issue. Rather, the second prong
of Curcio boils down to whether, as a practical and
policy matter, not allowing an immediate appeal will
create irreparable harm insofar as allowing the litigation
to proceed before the trial court will—in and of itself—
function to deprive a party of that right.’’ (Citations
omitted; emphasis omitted; internal quotation marks
omitted.) Halladay v. Commissioner of Correction,

340 Conn. 52

, 62–63,

262 A.3d 823

 (2021).
   We are mindful that our Supreme Court ‘‘previously
has determined that, under the second prong of [Curcio], a colorable claim to a right to be free from an
action is protected from the immediate and irrevocable
loss that would be occasioned by having to defend an
action through the availability of an immediate interlocutory appeal from the denial of a motion to dismiss.
. . . The rationale for immediate appellate review is
that the essence of the protection of immunity from
suit is an entitlement not to stand trial or face the other
burdens of litigation. . . . The second prong of Curcio
has been deemed satisfied under this rationale for
actions that are claimed to violate: sovereign immunity
. . . immunity for statements made in judicial and
quasi–judicial proceedings . . . statutory immunity
. . . the prohibition against double jeopardy . . . and
res judicata.’’ (Citations omitted; internal quotation
marks omitted.) Blakely v. Danbury Hospital,

323 Conn. 741

, 746–47,

150 A.3d 1109

 (2016). None of those
grounds is implicated in the present case.
    Here, for purposes of Curcio’s second prong, the
acquittee’s claimed right is the right to discharge from
the board’s jurisdiction based on his equal protection
claim described in footnote 3 of this opinion. We cannot
conclude, notwithstanding the acquittee’s arguments to
the contrary, that such claimed right includes the right
to avoid a continued commitment proceeding pursuant
to § 17a-593 (c). Rather, the claim raises arguments as
to why the petition should be denied on the merits.
Unlike, for example, a sovereign’s right to be immune
from suit or a criminal defendant’s right against double
jeopardy, the claimed right at issue here will not be
‘‘irretrievably lost’’ if interlocutory appellate review of
the court’s order on the acquittee’s motion to dismiss
is denied. State v. Coleman,

202 Conn. 86, 92

519 A.2d 1201

 (1987). The petition remains pending before the
court,10 and, as the state correctly points out in its appellate brief, ‘‘the trial court may yet deny the state’s pending petition for continued commitment. If the court
denies the petition, the acquittee would be discharged
from the [board’s] jurisdiction.’’ See also State v. Cole-

man, supra, 86, 91

. The acquittee’s claimed right is ‘‘still
intact and may be enforced on trial or on appeal from
a final judgment.’’

Id., 91

. Accordingly, further proceedings still can affect the acquittee’s claimed right and,
therefore, the second Curcio prong is not satisfied. See

id.,

 91–92 (denial of motion to dismiss based on statute
of limitations affirmative defense did not satisfy Curcio’s second prong); see also State v. Ahern,

42 Conn. App. 144

, 146–47,

678 A.2d 975

 (1996) (denial of motion
to dismiss based on right to speedy trial and due process
of law did not satisfy Curcio’s second prong).
  In sum, because the court’s denial of the acquittee’s
motion to dismiss the petition does not satisfy either
prong of Curcio, it is not a final judgment for purposes
of appeal.
      The appeal is dismissed.
      In this opinion the other judges concurred.
  1
     Because the defendant was found not guilty by reason of mental disease
or defect pursuant to General Statutes § 53a-13 in the underlying criminal
proceedings, he is an ‘‘[a]cquittee,’’ as that term is defined in General Statutes
§ 17a-580 (1).
   2
     General Statutes § 17a-593 (c) provides: ‘‘If reasonable cause exists to
believe that the acquittee remains a person with psychiatric disabilities or
a person with intellectual disability to the extent that his discharge at the
expiration of his maximum term of commitment would constitute a danger
to himself or others, the state’s attorney, at least one hundred thirty-five
days prior to such expiration, may petition the court for an order of continued
commitment of the acquittee.’’
   3
     The acquittee claims on the merits that, in denying his motion to dismiss,
the court improperly rejected his claim that § 17a-593, as applied to him,
violates his rights under the equal protection clause of the fourteenth amendment to the United States constitution. The acquittee’s equal protection
claim is twofold. First, he argues that the continued commitment procedures
set forth in § 17a-593 (c), as interpreted in State v. Metz,

230 Conn. 400

645 A.2d 965

 (1994), and related statutes and regulations, do not afford him the
substantive rights and due process protections otherwise provided by the
civil commitment procedures contained in General Statutes § 17a-495 et seq.
and General Statutes § 17a-508, consistent with the requirements of equal
protection. In outlining this distinction, the acquittee contends that the state
should have to prove that Metz acquittees are more dangerous than the
similarly situated class of civilly committed inmates. Second, he argues that
his continued commitment under the jurisdiction of the board beyond his
maximum term of commitment subjects him to legal processes, criminal
penalties, and other restrictions on his liberty interests inconsistent with
the requirements of equal protection. In light of our conclusion that we
lack subject matter jurisdiction to entertain this appeal, we do not address
this claim.
   4
     In its corrected revised memorandum of decision, the court explained
that the acquittee was ‘‘acquitted due to mental disease or defect of the
charges of attempted murder pursuant to General Statutes §§ 53a-48 and
53a-54a, and assault in the second degree, pursuant to General Statutes
§ 53a-60.’’ It is not clear why the court referenced §§ 53a-48 and 53a-60. The
trial court file, as well as the parties’ briefs, reflect that the acquittee was
charged with attempt to commit murder in violation of §§ 53a-49 and 53a-
54a and assault in the first degree in violation of § 53a-59 (a) (1).
   5
     While the petition was pending, the acquittee filed several motions to
extend the acquittee’s commitment to the board’s jurisdiction, by agreement,
pending the completion and eventual adjudication of his motion to dismiss,
and the court granted those requests. Most recently, on September 28,
2021, by agreement of the parties, the court again extended the acquittee’s
commitment for a period of time not to exceed March 20, 2023.
   6
     General Statutes § 17a-593 (d) provides: ‘‘The court shall forward any
application for discharge received from the acquittee and any petition for
continued commitment of the acquittee to the board. The board shall, within
ninety days of its receipt of the application or petition, file a report with
the court, and send a copy thereof to the state’s attorney and counsel for
the acquittee, setting forth its findings and conclusions as to whether the
acquittee is a person who should be discharged. The board may hold a
hearing or take other action appropriate to assist it in preparing its report.’’
   7
     On October 18, 2019, the court issued its original memorandum of decision in which it denied the acquittee’s motion to dismiss and also granted
the petition, ordering the acquittee’s continued commitment not to exceed
three years. On October 31, 2019, the acquittee filed a motion to correct
the original memorandum of decision, requesting that the court issue a
memorandum of decision addressed solely to the merits of the motion to
dismiss. Ultimately, on December 2, 2019, the court issued a corrected
revised memorandum of decision denying the acquittee’s motion to dismiss.
   8
     On May 12, 2021, while this appeal was pending, the state filed a revised
petition for an order of continued commitment pursuant to § 17a-593 (c)
(revised petition), and the acquittee filed a motion to dismiss the revised
petition. On September 28, 2021, the court granted a motion filed by the
acquittee and joined by the state, requesting that the court ‘‘take no action’’
on the revised petition and the filings related to the revised petition, with both
parties reserving ‘‘their right to pursue said [filings] if and when appropriate.’’
Both the revised petition and the acquittee’s motion to dismiss the revised
petition remain pending.
   9
     ‘‘General Statutes § 52-263 provides in relevant part: ‘Upon the trial of
all matters of fact in any cause or action in the Superior Court, whether to
the court or jury, or before any judge thereof when the jurisdiction of any
action or proceeding is vested in him, if either party is aggrieved by the
decision of the court or judge upon any question or questions of law arising
in the trial, including the denial of a motion to set aside a verdict, he may
appeal to the court having jurisdiction from the final judgment of the court
or of such judge . . . .’ ’’ Palmer v. Friendly Ice Cream

Corp., supra,

285 Conn. 466 n.5

.
   10
      See footnote 7 of this opinion.