Turner v. State

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 COREY TURNER v. STATE OF CONNECTICUT
(AC 37285)
DiPentima, C. J., and Prescott and Mullins, Js.
Argued December 12, 2016—officially released April 18, 2017

(Appeal from Superior Court, judicial district of
Hartford, Mullarkey, J.)

Corey Turner, self-represented, the appellant (peti-
tioner).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Gail P. Hardy, state’s attorney, and
Jo Anne Sulik, supervisory assistant state’s attorney,
for the appellee (respondent).
 Opinion

PRESCOTT, J. The petitioner, Corey Turner, appeals
from the judgment of the trial court denying on statute
of limitations grounds his petition for a new trial filed
pursuant to General Statutes § 52-270.1 The petitioner
concedes that he filed his petition outside of the three
year limitations period set forth in General Statutes
§ 52-582.2 Instead, he claims that the trial court improp-
erly failed to exercise its equitable power to toll the
statute of limitations, thereby unfairly denying him
access to a remedy. We conclude that the petitioner’s
failure to comply with § 52-582 deprived the court of
jurisdiction to consider the petition. Because the court
should have dismissed the untimely petition, rather than
having denied it, we reverse the judgment of the trial
court only as to the form of the judgment and remand
with direction to dismiss the petition for new trial.
The record reveals the following relevant facts and
procedural history. In 1997, the petitioner was found
guilty of murder in violation of General Statutes § 53a-
54a and assault in the first degree in violation of General
Statutes § 53a-59, for which he received a total effective
sentence of sixty years of incarceration. Turner v. Com-
missioner of Correction, 97 Conn. App. 15, 15, 902 A.2d
716 (2006). Our Supreme Court affirmed the judgment
of conviction on direct appeal.3 State v. Turner, 252
Conn. 714, 751 A.2d 372 (2000). Thereafter, the peti-
tioner filed a number of unsuccessful actions in state
and federal court, including multiple petitions seeking
a writ of habeas corpus, a petition for a writ of error
coram nobis, and a motion to open and set aside the
judgment of conviction. See Turner v. Dzurenda, 596
F. Supp. 2d 525 (D. Conn. 2009), aff’d, 381 Fed. Appx.
41 (2d Cir.), cert. denied, 562 U.S. 1032, 131 S. Ct. 574,
178 L. Ed. 2d 419 (2010); Turner v. Commissioner of
Correction, 163 Conn. App. 556, 134 A.3d 1253, cert.
denied, 323 Conn. 909, 149 A.3d 980 (2016); State v.
Turner, 139 Conn. App. 906, 55 A.3d 626 (2012), cert.
denied, 308 Conn. 946, 67 A.3d 289 (2013); Turner v.
State, 134 Conn. App. 906, 40 A.3d 345, cert. denied,
307 Conn. 904, 53 A.3d 219 (2012); Turner v. Commis-
sioner of Correction, 118 Conn. App. 565, 984 A.2d
793 (2009), cert. denied, 296 Conn. 901, 991 A.2d 1104
(2010); Turner v. Commissioner of Correction, supra,
97 Conn. App. 15; Turner v. Commissioner of Correc-
tion, 86 Conn. App. 341, 861 A.2d 522 (2004), cert.
denied, 272 Conn. 914, 866 A.2d 1286 (2005).
On December 7, 2012, the self-represented petitioner
filed the underlying petition for a new trial pursuant to
§ 52-270. On December 30, 2013, the petitioner amended
his petition. The amended petition asserted that the
state had engaged in ‘‘sham negotiations or a false prom-
ise of compromise’’ that was ‘‘intended to induce the
petitioner to surrender his right to a hearing on his
motion to suppress the in and out of court identification
of the petitioner as the perpetrator . . . .’’ The peti-
tioner also alleged that the state had solicited and
offered ‘‘perjured, false or misleading testimony’’ from
its principal identification witness and that, but for
those actions, he would have prevailed on his motion
to suppress, and the results of his criminal trial would
have been different, including a possible dismissal of
all charges.
The respondent, the State of Connecticut, answered
the petition for new trial, asserting by special defense
that the petitioner was not entitled to relief because
the petition had been filed more than three years after
judgment was rendered and, thus, was barred by § 52-
582 (a), the applicable statute of limitations. In
response, the petitioner asserted that although the gov-
erning statute of limitations admittedly had expired, the
court was not bound to apply the statute of limitations,
and could exercise its equitable powers to consider and
ultimately grant his petition.
The court held a hearing on the petition for new trial
on January 8, 2014. At that time, the court, Mullarkey,
J., indicated to the parties that it was concerned that
it lacked jurisdiction to entertain an untimely petition.
The respondent took the position that the petitioner’s
failure to file his petition within the applicable limita-
tions period did not implicate the court’s jurisdiction,
but only provided the respondent with an affirmative
defense, which it had pleaded. The court indicated that
it would need to decide the jurisdictional issue first.4
The court nevertheless proceeded to hear evidence on
the merits of the petition.5
The parties later submitted posttrial briefs. The peti-
tioner’s posttrial brief addressed the court’s jurisdic-
tional concern in a footnote, in which he again
acknowledged that the governing statute of limitations
set forth in § 52-582 (a) had expired prior to his filing
the petition, but argued that the court nevertheless had
jurisdiction to consider its merits. According to the
petitioner, ‘‘[i]n an equitable proceeding, a court may
provide a remedy even though the governing statute of
limitations has expired, just as it has discretion to dis-
miss for laches an action initiated within the period of
the statute. Dunham v. Dunham, 204 Conn. 303, 326–27,
[528 A.2d 1123] (1987).’’ In its posttrial brief, the respon-
dent maintained its position that the petition was time
barred, and argued that the petitioner had failed to
establish that the limitations period should be tolled.6
On August 14, 2014, the court rendered a judgment
denying the petition for new trial on statute of limita-
tions grounds. The court determined that, for purposes
of § 52-582, ‘‘the rendition of the judgment’’ had
occurred on October 10, 1997, when the petitioner was
sentenced in the underlying criminal matter. See Holli-
day v. State, 111 Conn. App. 656, 663, 960 A.2d 1101
(2008), cert. denied, 291 Conn. 902, 967 A.2d 112 (2009).
The court also found that the petitioner did not file his
petition for new trial until August, 2012, nearly fifteen
years after sentencing and, thus, well beyond the three
year limitations period.
Rather than disposing of the petition for new trial
solely on the basis of the uncontested fact that the
petitioner had not filed it within the three year statute
of limitations, the trial court indicated as part of its
rationale for denying the petition that the petitioner
had failed to provide the court with any explanation
that would have justified a late petition. The court stated
that even if it had equitable authority to consider a late
petition, it lacked any evidentiary basis to do so in this
case. The court suggested that it was the petitioner’s
burden to show that some injustice had prevented the
petitioner from filing the petition before the statute of
limitations had run. The court concluded that, taking
into account the nature of the petitioner’s claim, it could
find ‘‘nothing that would have prevented the petitioner
from pursuing it within the limitation period.’’ As pre-
viously noted, the court explicitly stated that the peti-
tioner was ‘‘not alleging fraudulent concealment, or any
other impropriety, that would have caused him any
delay in raising the claim.’’ The court denied the petition
for new trial and, subsequently, granted the petitioner
certification to file an appeal in accordance with Gen-
eral Statutes § 54-95 (a).7 This appeal followed.
The petitioner’s sole claim on appeal is that the court
abused its discretion in determining that his petition
for new trial was barred by the relevant statute of limita-
tions, arguing that, in the interest of justice, a trial court
in equitable proceedings is not obligated to adhere to
a statute of limitations. Inherent in the petitioner’s claim
is a presumption that the limitations period set forth
in § 52-582 was not jurisdictional in nature and that the
court had the authority to consider and apply principles
of equitable tolling.8 The respondent counters that the
trial court lacked any discretion regarding whether to
apply the statute of limitations and argues in the alterna-
tive that, even if it had such discretion, it properly
declined to exercise it in this case. We agree with the
respondent that the trial court lacked discretion to con-
sider a petition that was filed outside the limitations
period.
Our Supreme Court has made clear that a court lacks
the authority to apply the doctrine of equitable tolling
or otherwise exercise discretionary authority to extend
a limitations period if the applicable statute of limita-
tions constitutes a limit on the court’s subject matter
jurisdiction. Williams v. Commission on Human
Rights & Opportunities, 257 Conn. 258, 269, 777 A.2d
645 (2001). No appellate court explicitly has determined
whether a failure to comply with the three year limita-
tions period in § 52-582 may be excused or whether
strict compliance with the limitations period is neces-
sary to invoke the court’s subject matter jurisdiction.9
If the limitations period in § 52-582 was intended by
the legislature as an outright limit on the court’s jurisdic-
tion to entertain a late petition for new trial, the petition-
er’s admission that he failed to comply with the
statutory time requirement would be determinative of
his appellate claim because, in such a situation, the trial
court would have lacked any discretion to consider
the merits of the petition. Because the respondent has
advanced this argument on appeal, we must address it
before we can turn to the petitioner’s abuse of discre-
tion claim. See Pine v. Dept. of Public Health, 100 Conn.
App. 175, 180–81, 917 A.2d 590 (2007); see also State
v. Delgado, 323 Conn. 801, 810, 151 A.3d 345 (2016)
(questions of subject matter jurisdiction ‘‘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 proceed-
ings, including on appeal’’ [internal quotation marks
omitted]). For the reasons that follow, we conclude
that the three year limitations period for filing a petition
for new trial in a criminal matter implicates the court’s
subject matter jurisdiction, and, therefore, the court
lacked any discretion to consider the untimely petition.
Whether the court had subject matter jurisdiction
to consider a late petition for new trial presents a ques-
tion of law over which our review is plenary. Allen v.
Commissioner of Revenue Services, 324 Conn. 292, 298,
152 A.3d 488 (2016). In Williams v. Commission on
Human Rights & Opportunities, supra, 257 Conn. 266,
our Supreme Court sought to ‘‘clarify the analysis for
deciding whether a time limit is subject matter jurisdic-
tional.’’ It explained that ‘‘[a] conclusion that a time
limit is subject matter jurisdictional has very serious
and final consequences. It means that, except in very
rare circumstances . . . a subject matter jurisdictional
defect may not be waived . . . may be raised at any
time, even on appeal . . . and that subject matter juris-
diction, if lacking, may not be conferred by the parties,
explicitly or implicitly. . . . Therefore, we have stated
many times that there is a presumption in favor of
subject matter jurisdiction, and we require a strong
showing of legislative intent that such a time limit is
jurisdictional.’’ (Citations omitted.) Id. The court held
that the proper analytical approach is to focus on
‘‘whether the legislature intended the time limitation to
be subject matter jurisdictional.’’ Id., 267; see id., 269–
70. A search for legislative intent is a hallmark of statu-
tory construction. Thus, whether the three year
limitations period set forth in § 52-582 implicates the
trial court’s subject matter jurisdiction is a question of
statutory interpretation.
When construing a statute, ‘‘[o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . In other words, we seek to
determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . In seeking to determine that meaning,
General Statutes § 1-2z directs us first to consider the
text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered. . . . When a statute is
not plain and unambiguous, we also look for interpre-
tive guidance to the legislative history and circum-
stances surrounding its enactment, to the legislative
policy it was designed to implement, and to its relation-
ship to existing legislation and common law principles
governing the same general subject matter . . . .’’
(Internal quotation marks omitted.) Kasica v. Colum-
bia, 309 Conn. 85, 93, 70 A.3d 1 (2013).
Looking to the text of § 52-582, the statute provides
in relevant part that ‘‘[n]o petition for a new trial in any
civil or criminal proceeding shall be brought but within
three years next after the rendition of the judgment or
decree complained of . . . .’’10 Accordingly, the rele-
vant statutory language provides that, following the
‘‘rendition of the judgment,’’ which, in a criminal case,
is indisputably the sentencing date; see State v. Bruno,
132 Conn. App. 172, 177 n.3, 30 A.3d 34 (2011), cert.
denied, 303 Conn. 919, 34 A.3d 393 (2012); the petition
‘‘shall be brought’’ within three years.
‘‘Definitive words, such as must or shall, ordinarily
express legislative mandates of nondirectory nature.
. . . [T]he word shall creates a mandatory duty when
it is juxtaposed with [a] substantive action verb.’’ (Cita-
tion omitted; internal quotation marks omitted.) Wise-
man v. Armstrong, 295 Conn. 94, 101, 989 A.2d 1027
(2010). The use of the language ‘‘shall be brought’’ in
§ 52-582 is clearly mandatory in nature. Although the
statute contains no explicit language explaining what
should happen if a party files a petition outside the
limitations period, our Supreme Court has indicated the
absence of such language does not render a statute
ambiguous; State v. Ramos, 306 Conn. 125, 136–37, 49
A.3d 197 (2012); nor is its absence indicative that the
time limit is not jurisdictional in nature. Id., 140.
Although a statute’s mandatory language alone will not
always suffice to overcome the general presumption of
jurisdiction; see Williams v. Commission on Human
Rights & Opportunities, supra, 257 Conn. 269–70; and,
thus, may not be fully dispositive of legislative intent,
it nevertheless serves as a strong indication that the
legislature intended the three year period to serve as
‘‘an unequivocal bar to filing beyond the prescribed
period . . . .’’ State v. Ramos, supra, 306 Conn. 139
n.11; see also Williams v. Commission on Human
Rights & Opportunities, supra, 257 Conn. 271
(acknowledging that ‘‘strong mandatory language . . .
is consistent with the notion of a subject matter jurisdic-
tional limit’’).
With respect to interpreting the language of § 52-582,
we do not write on a clean slate regarding whether the
legislature intended to create a jurisdictional bar. In
State v. Ramos, supra, 306 Conn. 127–28, the issue
before our Supreme Court was whether the three year
period provided in General Statutes § 54-1j for filing a
motion to vacate a criminal conviction on the ground
that the defendant was not apprised of the immigration
consequences of a plea was jurisdictional in nature.
The court, albeit in dicta, referenced § 52-582 and the
language used by the legislature as a clear example of
a statute of limitations in which the legislature intended
to enact a jurisdictional bar. Id., 139 n.11.
Furthermore, as our Supreme Court also indicated
in Ramos, the legislature ‘‘amply has demonstrated that
it knows how to provide good cause exceptions to time
limitations if it so intends.’’ Id., 139 n.11, and statutes
cited therein. No general good cause exception was
included by the legislature when it enacted § 52-582.
Significantly, the legislature later amended the statute
to expressly allow the court to consider petitions for
new trial based on newly discovered evidence filed
outside the three year period but only if the newly
discovered evidence involved DNA. See footnote 10 of
this opinion. Presumably, such an amendment would
have been unnecessary if a court already possessed the
discretion to consider a late petition. ‘‘It is a basic tenet
of statutory construction that the legislature [does] not
intend to enact meaningless provisions.’’ (Internal quo-
tation marks omitted.) Neighborhood Assn., Inc. v.
Limberger, 321 Conn. 29, 38–39, 136 A.3d 581 (2016).
If the legislature had wanted to leave open the possibil-
ity that a petition filed outside the three year period
could be entertained by the court for equitable reasons,
it easily could have done so with express language.
Overall, we are convinced that the unambiguous and
unqualified language used by the legislature in § 52-582
evinces that a petition must be filed within the stated
three year limitations period, otherwise the court lacks
jurisdiction to consider it.
Next, in addition to analyzing the statutory language
contained in § 52-582, we must take into consideration
the entire statutory scheme at issue, and more particu-
larly construe § 52-582 together with § 52-270. Because
a petition for new trial under § 52-270 is a statutorily
created proceeding, its scope necessarily is limited by
the terms of the statutory scheme governing its use.
See Black v. Universal C. I. T. Credit Corp., 150 Conn.
188, 192, 187 A.2d 243 (1962); see also Waterworks v.
Audet, 29 Conn. App. 722, 723–24, 617 A.2d 932 (1992)
(holding failure to comply with statutory requirement
that petition for new trial in civil matter be served by
writ and complaint deprived court of subject matter
jurisdiction to consider petition). Our Supreme Court
has stated in the context of a civil matter that ‘‘[a]
critical limitation on the exercise of the trial court’s
discretion in passing upon such a petition for a new
trial . . . is the statute of limitations.’’ Summerville v.
Warden, 229 Conn. 397, 426, 641 A.2d 1356 (1994). It is
unclear, however, whether our Supreme Court’s use of
the phrase ‘‘critical limitation’’ on the ‘‘court’s discre-
tion’’ in describing the statute of limitations was meant
to convey that a late petition for new trial should be
treated as jurisdictionally barred or merely that the
court should give important consideration to the timeli-
ness of a petition before considering its merits.
The notion that the limitation period is intended as
a jurisdictional bar is certainly more compelling in a
criminal law context. State v. Ramos, supra, 306 Conn.
134–35. Despite the generally recognized principle that
there is always a strong presumption in favor of jurisdic-
tion; see Williams v. Commission on Human Rights &
Opportunities, supra, 257 Conn. 266; ‘‘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 sentence unless it expressly has been
authorized to act.’’ (Internal quotation marks omitted.)
State v. Ramos, supra, 134–35.
‘‘It is well established 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. . . . This is so because the court loses
jurisdiction over the case when the defendant is com-
mitted to the custody of the commissioner of correction
and begins serving the sentence . . . . There are a lim-
ited number of circumstances in which the legislature
has conferred on the trial courts continuing jurisdiction
to act on their judgments after the commencement of
sentence. . . . See, e.g., General Statutes §§ 53a-29
through 53a-34 (permitting trial court to modify terms of
probation after sentence is imposed); General Statutes
§ 52-270 (granting jurisdiction to trial court to hear peti-
tion for a new trial after execution of original sentence
has commenced); General Statutes § 53a-39 (allowing
trial court to modify sentences of less than three years
provided hearing is held and good cause shown). . . .
Without a legislative or constitutional grant of continu-
ing jurisdiction, however, the trial court lacks jurisdic-
tion to modify its judgment.’’ (Citations omitted;
internal quotation marks omitted.) State v. Lawrence,
281 Conn. 147, 153–54, 913 A.2d 428 (2007).
A petition for new trial pursuant to § 52-270 is in clear
derogation of the common law because it grants the
trial court continuing jurisdiction over criminal matters
following sentencing. Any statutory limitation on the
filing of a petition for new trial should be strictly con-
strued in favor of limiting the scope of its use, which
in this case militates in favor of construing the three
year limitations period in § 52-582 as a strict jurisdic-
tional bar. Such a construction is supported by our
Supreme Court’s recent holding in Allen v. Commis-
sioner of Revenue Services, supra, 324 Conn. 297–303.
In Allen, the court held that the three year limitations
period to file an income tax refund pursuant to General
Statutes § 12-732 (a) was jurisdictional and could not
be tolled because it was part of a statutory scheme that
waived sovereign immunity in derogation of common
law. Id.
In support of his claim that the trial court had equita-
ble authority to look past the petitioner’s failure to
comply with the statutorily proscribed time limit, the
petitioner relies, as it did before the trial court, on a
passage from Dunham v. Dunham, supra, 204 Conn.
326–27. That reliance, however, is misplaced.
In Dunham, the trial court had directed a verdict in
favor of the plaintiff in an action that included a count
seeking to set aside a probate decree on the basis of
allegations that the defendant had exercised undue
influence in preparing and securing the execution of a
will. Id., 308. The defendant claimed on appeal, inter
alia, that the count seeking relief from the probate
decree, an equitable action, nevertheless was barred by
the three year statute of limitation for actions sounding
in tort. Id., 326. The Supreme Court stated that ‘‘[t]he
fallacy in the defendant’s argument is his assumption
that a court, acting under its equitable powers, is bound
to apply the statute of limitations that governs the
underlying cause of action. In fact, in an equitable pro-
ceeding, a court may provide a remedy even though
the governing statute of limitations has expired, just as
it has discretion to dismiss for laches an action initiated
within the period of the statute. . . . Although courts
in equitable proceedings often look by analogy to the
statute of limitations to determine whether, in the inter-
ests of justice, a particular action should be heard, they
are by no means obligated to adhere to those time
limitations.’’ (Citations omitted.) Id., 326–27.
Although the petitioner finds support for his position
in the court’s statement that ‘‘in an equitable proceed-
ing, a court may provide a remedy even though the
governing statute of limitations has expired’’; id., 326;
the petitioner has failed to appreciate the context in
which that statement was made. Unlike the present
case, the court in Dunham was not considering whether
to follow a statute of limitations that was directly appli-
cable to the equitable proceeding before it, but whether
it should import and adhere to an analogous statute of
limitations applicable to a related action at law. Thus,
the previously quoted language merely recognizes the
discretion of the trial court in equitable proceedings
not directly governed by a limitations period to import
and apply an analogous statute of limitations. Although
we have described a petition for new trial as ‘‘a proceed-
ing essentially equitable in nature’’; (emphasis added;
internal quotation marks omitted) Savalle v. Hilzinger,
158 Conn. App. 837, 844, 120 A.3d 520, cert. denied, 319
Conn. 946, 125 A.3d 527 (2015); it is a statutorily created
proceeding, not an action at equity, and it is governed
by a directly applicable statute of limitations. The court
had no discretion but to apply the statute of limitations.
Dunham is simply inapposite to our analysis.
Finally, in the past, appellate courts considering
whether a limitations period was jurisdictional in nature
and, thus, could be raised sua sponte by the court,
looked to whether the statute containing the limitations
period was the same statute that created the cause of
action for which the limitations period was intended
to apply. ‘‘The general rule is that where the right of
action exists independently of the statute in which the
limitation is found, such a statutory bar is considered
personal and procedural, and it is deemed waived
unless it is specially pleaded. . . . This is so because
it is considered that the limitation acts as a bar to a
remedy otherwise available. . . . In these instances, a
trial court may not raise the limitation on its own
motion. [If], however, a specific limitation is contained
in the statute which establishes the remedy, the remedy
exists only during the prescribed period and not there-
after. In this situation, the court may properly raise the
statute of limitations issue on its own motion because
it is considered substantive or jurisdictional, and not
subject to waiver.’’ (Citations omitted.) Orticelli v. Pow-
ers, 197 Conn. 9, 15, 495 A.2d 1023 (1985).
Although, in the present case, the limitations period
for a petition for new trial is not contained in § 52-
270, the statute creating that right of action, we are
unconvinced that this is a decisive factor in deciding
the issue before us. Whether the statute creating the
cause of action also contains the limitation period is
but one factor to be considered in divining the legisla-
tive intent. Our Supreme Court recently has suggested
that in ascertaining whether the legislature intended a
limitation period to be jurisdictional, it is more instruc-
tive to observe whether the limitation period is a condi-
tion imposed on a statutorily created right of action or,
conversely, an action that existed under the common
law. ‘‘The former generally is deemed to be jurisdic-
tional, whereas the latter is not.’’ Neighborhood Assn.,
Inc. v. Limberger, supra, 321 Conn. 46. Here, the limita-
tion period is a condition precedent to filing a petition
for new trial, a statutorily created action. Although that
limitation period is not contained in the statute creating
the right of action, that factor is simply insufficient to
sway our overall analysis.
Having considered the text of the statute itself and
its relationship to other statutes, we are convinced that
the legislature intended the three year limitations period
set forth in § 52-582 to be a jurisdictional bar. The peti-
tioner concedes that the underlying petition was filed
more than three years after he was sentenced in the
underlying criminal action. Because the petition was
not timely, and the statutory exception for newly dis-
covered DNA evidence was inapplicable, the court was
without subject matter jurisdiction to consider the mer-
its of the petition.
Having determined that the court lacked subject mat-
ter jurisdiction to consider the petition for new trial,
we conclude that the court should have dismissed
rather than denied the petition. See State v. Tabone,
301 Conn. 708, 715, 23 A.3d 689 (2011).
The form of the judgment is improper, the judgment
denying the petition for new trial is reversed, and the
case is remanded with direction to render judgment
dismissing the petition for new trial.
In this opinion the other judges concurred.
1
General Statutes § 52-270 (a) provides: ‘‘The Superior Court may grant
a new trial of any action that may come before it, for mispleading, the
discovery of new evidence or want of actual notice of the action to any
defendant or of a reasonable opportunity to appear and defend, when a just
defense in whole or part existed, or the want of actual notice to any plaintiff
of the entry of a nonsuit for failure to appear at trial or dismissal for
failure to prosecute with reasonable diligence, or for other reasonable cause,
according to the usual rules in such cases. The judges of the Superior Court
may in addition provide by rule for the granting of new trials upon prompt
request in cases where the parties or their counsel have not adequately
protected their rights during the original trial of an action.’’ (Emphasis
added.)
2
General Statutes § 52-582 provides in relevant part: ‘‘No petition for a
new trial in any civil or criminal proceeding shall be brought but within
three years next after the rendition of the judgment or decree complained
of . . . .’’
3
In its opinion, our Supreme Court set forth the following facts underlying
the petitioner’s criminal conviction. ‘‘On the evening of August 11, 1995,
[the petitioner] and Richard Woods, the victim, had an argument in front
of Betty Lewis’ house at 141 Homestead Avenue in Hartford. At approxi-
mately 11 p.m. that night, Darius Powell, Kendrick Hampton, Lewis and
Woods were together in front of Lewis’ house. Blanchard Baisden, also
known as ‘Weedy,’ Armando Colon, also known as ‘Mondo,’ and Lillian
Williams also were standing nearby at that time. [The petitioner] and [his
brother] Charles Turner drove down the street in a tan Oldsmobile. Shortly
thereafter, Charles Turner, now alone in the car, drove back up Homestead
Avenue. Charles Turner parked the car at the corner of Homestead Avenue
and Edgewood Street, across the street from where Woods and his friends
were standing. He then exited the car and began ‘dancing around.’ As Powell,
Hampton and Woods watched Charles Turner, [the petitioner], wearing a
mask and dark clothing, approached the group and shot at Woods with a
handgun. The first two shots hit Woods in the leg, and three of the following
six shots struck him in the hip. During the attack, Woods shouted ‘Boku
shot me. Boku did it.’ ‘Boku’ is [the petitioner’s] street name. Powell and
Hampton, who were familiar with [the petitioner] from the neighborhood,
recognized him as the assailant. After the shooting, [the petitioner] escaped
through the yards behind the apartment building. Charles Turner, who had
jumped back into the tan Oldsmobile when the shooting began, drove down
Homestead Avenue and picked up [the petitioner] four houses away. Woods
later died at the hospital from the gunshot wounds.’’ State v. Turner, 252
Conn. 714, 717–18, 751 A.2d 372 (2000).
4
The relevant colloquy was as follows:
‘‘The Court: Now, do we have any other motions from the state as far as
the court’s jurisdiction in this matter?
‘‘[The Respondent]: No, Your Honor. I just felt there would be too little
time before today to file a motion for summary judgment and then allow
the petitioner to have enough time to respond before today, so I didn’t file
a motion.
 ‘‘The Court: Well, in addition to this, I have another petition for a new
trial, and I have sort of supervisory responsibility on petitions generally
pending in the criminal courthouse. So other than my day job, I have a
concern as to whether or not this court has jurisdiction.
‘‘[The Petitioner]: Well—
‘‘[The Respondent]: I believe the court has jurisdiction. We’re alleging
that there is—that because he was convicted and sentenced in 1997, we’re
three years beyond the statute—we’re beyond the three year statute of
limitations. I don’t think that’s a jurisdictional question. I think it’s an affirma-
tive defense.
‘‘The Court: All right. Well, are you going to file a motion on that?
‘‘[The Respondent]: We’ve pleaded it in our answer.
‘‘The Court: Well, that’s the first thing we have to decide, Mr. Turner.
‘‘[The Petitioner]: This is correct. I filed it on—excuse me. I filed a response
to the state’s special defense, Your Honor.’’
5
The petitioner submitted transcripts and other documentary evidence,
and presented testimony from his criminal trial counsel, who was the only
witness offered by the petitioner. The respondent called no witnesses of its
own and presented no other evidence.
6
The respondent’s discussion focused primarily on the petitioner’s failure
to establish that the state had fraudulently concealed the alleged facts that
served as a basis for the petition for new trial. Our fraudulent concealment
statute, General Statutes § 52-595, provides: ‘‘If any person, liable to an
action by another, fraudulently conceals from him the existence of the cause
of such action, such cause of action shall be deemed to accrue against such
person so liable therefor at the time when the person entitled to sue thereon
first discovers its existence.’’ As the petitioner correctly noted in his posttrial
reply brief, he never asserted that the court had discretion to hear his
untimely petition as a result of fraudulent concealment by the state. The court
acknowledged this in its memorandum denying the petition. Accordingly, we
do not consider the applicability of § 52-595.
We note that in Holliday v. State, 111 Conn. App. 656, 960 A.2d 1101
(2008), cert. denied, 291 Conn. 902, 967 A.2d 112 (2009), this court rejected
on its merits a claim that the three year statute of limitations for filing a
petition for new trial had been tolled by fraudulent concealment. The panel
in Holliday, however, was not asked to consider whether the limitations
period in § 52-582 was jurisdictional in nature, nor did they raise that issue
sua sponte, and, therefore, the court did not discuss whether such a determi-
nation would have had any bearing on the applicability of § 52-595. We leave
that question for another day when the issue is squarely before us. But see
Fichera v. Mine Hill Corp., 207 Conn. 204, 216–17, 541 A.2d 472 (1988)
(holding § 52-595 inapplicable to toll jurisdictional CUTPA limitations period
in General Statutes § 42-110g [f]).
7
General Statutes § 54-95 (a) provides in relevant part: ‘‘No appeal may
be taken from a judgment denying a petition for a new trial unless, within
ten days after the judgment is rendered, the judge who heard the case or
a judge of the Supreme Court or the Appellate Court, as the case may be,
certifies that a question is involved in the decision which ought to be
reviewed by the Supreme Court or by the Appellate Court. . . .’’
8
We previously have construed ‘‘equitable tolling’’ as a doctrine that
includes notions of ‘‘waiver, consent, or estoppel, that is, as an equitable
principle to excuse untimeliness.’’ Williams v. Commission on Human
Rights & Opportunities, 67 Conn. App. 316, 320 n.9, 786 A.2d 1283 (2001).
9
The issue of whether the time limitation in § 52-582 was a substantive
or procedural matter so as to affect the court’s jurisdiction was an issue
before this court in Labow v. Labow, 69 Conn. App. 760, 764–65, 796 A.2d
592, cert. denied, 261 Conn. 903, 802 A.2d 853 (2002), in which the trial
court had dismissed sua sponte an untimely petition for new trial on the
ground that it lacked jurisdiction to consider a late petition. We did not
reach the issue, however, because we determined that an underlying final
judgment was a prerequisite to the filing of a petition for new trial, and,
because no such judgment had been rendered prior to the filing of the
petition for new trial in that case, the trial court’s dismissal of the petition
was proper, albeit on a different ground. Id., 766.
10
In 2000, the legislature amended § 52-582 by appending to the existing
language the following exception: ‘‘except that a petition based on DNA
(deoxyribonucleic acid) evidence that was not discoverable or available at
the time of the original trial may be brought at any time after the discovery
or availability of such new evidence.’’ Public Acts 2000, No. 00-80, § 2. That
exception does not apply in the present case because the petitioner’s claim
does not involve newly discovered DNA evidence.