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STANLEY FOOTE v. COMMISSIONER
OF CORRECTION
(AC 37428)
Lavine, Alvord and Schaller, Js.
Argued November 14, 2016—officially released February 14, 2017
(Appeal from Superior Court, judicial district of
Tolland, geographical area number nineteen, Oliver, J.)
Jodi Zils Gagne´, for the appellant (petitioner).
Matthew A. Weiner, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, Angela R. Macchiarulo, senior assistant state’s
attorney, and Michael Proto, assistant state’s attorney,
for the appellee (respondent).
Opinion
SCHALLER, J. The petitioner, Stanley Foote, follow-
ing a grant of certification to appeal by the habeas
court, appeals from the judgment of the habeas court
dismissing his amended petition for a writ of habeas
corpus. On appeal, the petitioner claims that the habeas
court improperly dismissed his habeas petition for lack
of subject matter jurisdiction because the petitioner
was not in the custody of the respondent, the Commis-
sioner of Correction, on the challenged conviction when
he filed his petition, as required by General Statutes
§ 52-466. We disagree and affirm the judgment of the
habeas court.
Our review of the record reveals the following facts
and procedural history. On November 13, 2002, the peti-
tioner was convicted of possession of cocaine with
intent to sell by a person who is not drug-dependent
and received a sentence of eight years incarceration
and five years special parole (Ansonia conviction). See
State v. Foote, 85 Conn. App. 356, 360, 857 A.2d 406
(2004) (affirming petitioner’s conviction), cert. denied,
273 Conn. 937, 875 A.2d 43, 44 (2005). Thereafter, the
special parole portion of his sentence was reduced to
three and one-half years. On July 21, 2010, while he
was on parole on the Ansonia conviction, the petitioner
was arrested for participating in a narcotics sale. On
September 14, 2010, in connection with this incident,
the petitioner pleaded guilty under the Alford doctrine1
to conspiracy to sell narcotics. He received a sentence
of two years incarceration (Waterbury conviction), to
run concurrently with his existing sentence on the Anso-
nia conviction. After the petitioner was sentenced, he
was informed by the Department of Correction that the
unexpired portion of his special parole on the Ansonia
conviction would not begin to run until after the peti-
tioner completed his sentence on the Waterbury con-
viction.
On January 3, 2013, after completing the sentence on
the Waterbury conviction, but before completing the
sentence on the Ansonia conviction, the petitioner filed
a petition for a writ of habeas corpus challenging the
Waterbury conviction. An amended petition was filed
on May 19, 2014. On May 23, 2014, the respondent filed
a motion to dismiss the petition on the ground that
the petitioner was not in custody on the Waterbury
conviction at the time that he filed the petition. On July
2, 2014, the petitioner filed an objection, arguing that,
although the Waterbury conviction had expired at the
time of the petition, the court had jurisdiction pursuant
to the custody exception as expressed in Garlotte v.
Fordice, 515 U.S. 39, 115 S. Ct. 1948, 132 L. Ed. 2d
36 (1995). Under Garlotte, subject matter jurisdiction
exists for an expired sentence when the petitioner is
serving consecutive sentences and the expired sentence
has an appreciable effect on the current sentence. Id.,
47; Oliphant v. Commissioner of Correction, 274 Conn.
563, 574 n.9, 877 A.2d 761 (2005) (explaining circum-
stance in which Garlotte exception applies). The habeas
court issued a memorandum of decision on September
17, 2014, granting the respondent’s motion to dismiss.
The habeas court held that it did not have subject matter
jurisdiction over the petitioner’s habeas petition
because he was not in custody on the Waterbury convic-
tion when he filed his petition, and the Garlotte custody
exception did not apply. The habeas court subsequently
granted the petitioner’s petition for certification to
appeal, and this appeal followed.
On appeal, the petitioner claims that the court
improperly dismissed his petition for a writ of habeas
corpus on the ground that he was not in the custody of
the respondent on the challenged Waterbury conviction
when he filed his petition, as required by § 52-466.2
Specifically, he claims that, although the trial court gave
the petitioner a concurrent sentence on the Waterbury
conviction, it became a consecutive sentence in prac-
tice because the unexpired portion of his special parole
on the Ansonia conviction did not begin to run until after
he finished his sentence on the Waterbury conviction.
Moreover, the petitioner claims that he is actually chal-
lenging how the sentence on the Waterbury conviction
affected the sentence on the Ansonia conviction, and
that he should have been allowed to amend the petition
to include a challenge to the Ansonia conviction. We
disagree.
To resolve the petitioner’s claim, we begin by setting
forth our standard of review and the relevant legal prin-
ciples. ‘‘We have long held that because [a] determina-
tion regarding a trial court’s subject matter jurisdiction
is a question of law, our review is plenary. . . . More-
over, [i]t is a fundamental rule that a court may raise
and review the issue of subject matter jurisdiction at
any time. . . . Subject matter jurisdiction involves the
authority of the court to adjudicate the type of contro-
versy presented by the action before it. . . . [A] court
lacks discretion to consider the merits of a case over
which it is without jurisdiction . . . . The subject mat-
ter jurisdiction requirement may not be waived by any
party, and also may be raised by a party, or by the court
sua sponte, at any stage of the proceedings, including
on appeal.’’ (Internal quotation marks omitted.) Fer-
nandez v. Commissioner of Correction, 139 Conn. App.
173, 177–78, 55 A.3d 588 (2012).
Pursuant to § 52-466 (a) (1),3 ‘‘[a] habeas court has
subject matter jurisdiction to hear a petition for habeas
corpus when the petitioner is in custody at the time that
the habeas petition is filed.’’ Young v. Commissioner of
Correction, 104 Conn. App. 188, 191, 932 A.2d 467
(2007), cert. denied, 285 Conn. 907, 942 A.2d 416 (2008).
‘‘[I]n order to satisfy the custody requirement of § 52-
466, the petitioner [must] be in custody on the convic-
tion under attack at the time the habeas petition is filed
. . . . [C]ollateral consequences flowing from an
expired conviction do not render a petitioner in custody
under §52-466; rather, such a claim of confinement or
custody and any accompanying loss of liberty [stem]
solely from [a petitioner’s] current conviction.’’ (Cita-
tions omitted; emphasis omitted; internal quotation
marks omitted.) Richardson v. Commissioner of Cor-
rection, 298 Conn. 690, 698, 6 A.3d 52 (2010).
An exception exists, however, to the custody require-
ment. ‘‘A habeas petitioner who is serving consecutive
sentences may challenge a future sentence even though
he is not serving that sentence at the time his petition
is filed; see Peyton v. Rowe, [391 U.S. 54, 67, 88 S. Ct.
1549, 20 L. Ed. 2d 426 (1968)]; and he may challenge a
consecutive sentence served prior to his current con-
viction if success could advance his release date. Gar-
lotte v. Fordice, supra, 515 U.S. 47. In other words, the
. . . courts view prior and future consecutive senten-
ces as a continuous stream of custody for purposes of
the habeas court’s subject matter jurisdiction.’’ (Empha-
sis in original; internal quotation marks omitted.) Oli-
phant v. Commissioner of Correction, supra, 274 Conn.
573. Our courts have not extended this exception to
concurrent sentences, which ‘‘do not create a continu-
ous stream of custody because they do not, by their
nature, extend the term of incarceration.’’ Fernandez
v. Commissioner of Correction, supra, 139 Conn.
App. 188.
With regard to a motion to dismiss, ‘‘[t]he standard
of review . . . is . . . well established. In ruling upon
whether a complaint survives a motion to dismiss, a
court must take the facts to be those alleged in the
complaint, including those facts necessarily implied
from the allegations, construing them in a manner most
favorable to the pleader. . . . A motion to dismiss
tests, inter alia, whether, on the face of the record,
the court is without jurisdiction. . . . The conclusions
reached by the [habeas] court in its decision to dismiss
the habeas petition are matters of law, subject to ple-
nary review. . . . Thus, [w]here the legal conclusions
of the court are challenged, we must determine whether
they are legally and logically correct . . . and whether
they find support in the facts that appear in the record.’’
(Citation omitted; internal quotation marks omitted.)
Young v. Commissioner of Correction, supra, 104 Conn.
App. 193.
In the present case, when the petitioner was sen-
tenced to a term of two years imprisonment on the
Waterbury conviction, beginning on July 21, 2010,4 the
trial court determined that the sentence would run con-
currently with his eight years of incarceration and
reduced three and one-half years special parole on the
Ansonia conviction. Although the petitioner believed
that his special parole would begin in November, 2010,
it did not begin to run until he finished service on the
Waterbury conviction, which terminated between July
and September, 2012. Special parole was delayed until
the petitioner completed the sentence on the Waterbury
conviction because, pursuant to General Statutes § 54-
125e (a), special parole begins ‘‘at the expiration of the
maximum term or terms of imprisonment imposed by
the court . . . .’’ See State v. Boyd, 272 Conn. 72, 78,
861 A.2d 1155 (2004) (‘‘[t]he text of § 54-125e (a) demon-
strates that the legislature clearly intended for the
period of special parole to be distinct from the definite
prison sentence, not included in it’’); Smith v. Lee, Supe-
rior Court, judicial district of New Haven, Docket No.
CV-09-5025939 (May 20, 2009), 2009 WL 1578513, *1
(petitioner was given concurrent sentences, but special
parole was delayed because ‘‘[u]nder the statute creat-
ing and governing special parole, § 54-125e, special
parole does not commence until the expiration of the
maximum term of imprisonment,’’ and, therefore, peti-
tioner could not be released on original date for special
parole when he received concurrent sentence).
The petitioner argues that, because his special parole
did not begin to run until the expiration of the sentence
on the Waterbury conviction, the sentences should be
treated as one continuous stream of custody, and, there-
fore, the Garlotte custody exception should apply. The
fact that parole in the concurrent Ansonia sentence was
delayed, however, did not automatically convert the
concurrent sentences into consecutive sentences and,
thus, trigger the Garlotte custody exception.5 Rather,
the delay in special parole, which cannot be served
while one is incarcerated, was merely a consequence
of the sentence on the Waterbury conviction, which
included incarceration, being imposed. See State v.
Andrews, 53 Conn. App. 90, 95, 729 A.2d 232 (1999)
(parole eligibility is collateral consequence of guilty
plea), aff’d, 253 Conn. 497, 752 A.2d. 49 (2000). The
collateral consequences of a completed sentence are
not sufficient to render an individual in custody for the
purpose of a habeas petition, even if the petitioner is
suffering those consequences at the time that he filed
his petition. Ajadi v. Commissioner of Corrections, 280
Conn. 514, 540, 911 A.2d 712 (2006); Lebron v. Commis-
sioner of Correction, 274 Conn. 507, 530, 876 A.2d 2d
1178 (2005), overruled on other grounds by State v.
Elson, 311 Conn. 726, 91 A.3d 862 (2014); see also Fer-
nandez v. Commissioner of Correction, supra, 139
Conn. App. 188–89 (expired conviction’s delaying
parole eligibility on current sentence was collateral con-
sequence and did not render petitioner in custody).
Therefore, when the petitioner filed his petition for a
writ of habeas corpus on January 3, 2013, the sentence
on the Waterbury conviction was complete, and the
petitioner was in custody only on the Ansonia convic-
tion. In turn, his claim of confinement and loss of liberty
as a result of the delay in special parole stemmed solely
from the Ansonia conviction. Accordingly, we conclude
that the court logically and correctly concluded that
the petitioner was not in custody for the Waterbury
conviction, and it therefore lacked subject matter juris-
diction over his petition.
The petitioner also argues that he actually is challeng-
ing how the sentence on the Waterbury conviction
affected the sentence on the Ansonia conviction and
that he should have been allowed to amend his petition
to include a challenge to the Ansonia sentence for which
he was still in custody. Specifically, the petitioner
argues that, instead of dismissing the petition outright,
the habeas court should have taken every precaution
to save the case. This court previously has determined
that the trial court does not have an obligation to amend
a pleading sua sponte. Kosinski v. Carr, 112 Conn. App.
203, 210, 962 A.2d 836 (2009) (holding that trial court
did not abuse its discretion by failing, sua sponte, to
order pleadings amended to conform to proof). In the
present case, the petitioner did not file a request to
amend the petition to include a challenge to the Ansonia
sentence. As it is not the court’s obligation to amend
pleadings sua sponte, the habeas court was not required
to save the petition from dismissal.
The judgment is affirmed.
In this opinion the other judges concurred.
1
North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
2
At oral argument before this court, counsel for the petitioner conceded
that the outcome of this appeal would not affect the petitioner, but argued
that his claim fell under the mootness exception of capable of repetition,
yet evading review. See Dutkeiwicz v. Dutkeiwicz, 289 Conn. 362, 366–67,
957 A.2d 821 (2008) (‘‘[although] the existence of an actual controversy is
an essential requisite to appellate jurisdiction . . . [t]he mootness doctrine
does not preclude a court from addressing an issue that is capable of
repetition, yet evading review’’ [internal quotation marks omitted]). Moot-
ness, however, was not briefed, and, in his oral argument, counsel for the
respondent indicated that the petitioner’s claim is not moot because, should
the petitioner prevail on appeal, he could argue the merits of the Waterbury
conviction and potentially could have the conviction removed from his
record.
3
General Statutes § 52-466 (a) (1) provides in relevant part: ‘‘[a]n applica-
tion for a writ of habeas corpus . . . shall be made to the superior court
. . . for the judicial district in which the person whose custody is in question
is claimed to be illegally confined or deprived of such person’s liberty.’’
4
Although sentenced on September 14, 2010, the defendant was credited
with the time he served between his arrest on July 21, 2010, and his sen-
tencing.
5
In both his brief and at oral argument, the respondent argued that the
petitioner did not meet the second prong of Garlotte, which requires that
the petitioner show that the expired sentence had an appreciable effect on
the current sentence. Garlotte v. Fordice, supra, 515 U.S. 47. The petitioner,
however, failed to meet the first prong, requiring that the petitioner be
serving consecutive sentences. Consequently, we need not address whether
the Waterbury conviction had an appreciable effect on the Ansonia con-
viction.