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STATE OF CONNECTICUT v. ACEION BROWN
(AC 38855)
Keller, Bright and Mihalakos, Js.
Syllabus
The defendant, who had been convicted, on a plea of guilty, of the crime
of possession of more than four ounces of marijuana, appealed to this
court from the judgment of the trial court denying his petition for a
writ of error coram nobis. In his petition, the defendant sought to vacate
his conviction, claiming that, at the time he had entered the plea, he
did not understand the immigration consequences that would result
from the plea and conviction, and that his trial counsel’s failure to advise
him of those consequences constituted ineffective assistance of counsel.
The trial court, after considering the petition on its merits, denied the
petition. Held that the trial court lacked subject matter jurisdiction to
consider the merits of the petition for a writ of error coram nobis: the
defendant could have raised his ineffective assistance of counsel claim
in a habeas petition while he was in custody related to the subject
conviction or in a petition for a new trial for a period of three years
subsequent to the date of that conviction, and, therefore, he had prior
alternative legal remedies available to him, which deprived the trial
court of jurisdiction to entertain the petition; accordingly, because the
trial court lacked jurisdiction over the petition for a writ of error coram
nobis, it should have rendered judgment dismissing rather than denying
the petition.
Argued November 14, 2017—officially released January 23, 2018
Procedural History
Information charging the defendant with the crimes
of possession of narcotics with intent to sell, possession
of narcotics within 1500 feet of a school and possession
of more than four ounces of marijuana, brought to the
Superior Court in the judicial district of Hartford, geo-
graphical area number fourteen, where the defendant
was presented to the court, Lobo, J., on a plea of guilty
to possession of more than four ounces of marijuana;
judgment of guilty; thereafter, the court, Alexander, J.,
denied the defendant’s petition for a writ of error coram
nobis, and the defendant appealed to this court.
Improper form of judgment; judgment directed.
Vishal K. Garg, for the appellant (defendant).
Nancy L. Walker, deputy assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Matthew W. Brodsky, senior assistant
state’s attorney, for the appellee (state).
Opinion
MIHALAKOS, J. The defendant, Aceion Brown,
appeals from the judgment of the trial court denying
his petition for a writ of error coram nobis. We conclude
that, in the circumstances presented, the court lacked
jurisdiction to consider the merits of the petition, and
we do not reach the merits of his ineffective assistance
of counsel claim. Because the court should have dis-
missed the petition, rather than having denied it, we
reverse the judgment of the trial court only as to the
form of the judgment and remand the case with direc-
tion to dismiss the petition for a writ of error coram
nobis.
The following facts and procedural history are rele-
vant to our disposition of this appeal. The defendant is
a native and citizen of Jamaica, and a permanent resi-
dent of the United States. He is the father of two children
who are citizens of the United States. In December,
2011, the defendant pleaded guilty to possession of a
controlled substance with intent to sell in violation of
General Statutes § 21a-277 (b) and was sentenced to
three years incarceration, execution suspended, and
two of years probation. In April, 2013, the defendant
was arrested again on multiple drug related charges.
On May 22, 2013, the defendant, represented by coun-
sel, entered a guilty plea, under the Alford doctrine,1
to the crime of possession of more than four ounces
of marijuana in violation of General Statutes (Rev. to
2013) § 21a-279 (b) and admitted a violation of the pro-
bation imposed on his 2011 conviction. Prior to
accepting his plea, the court, Lobo, J., asked, while
canvassing the defendant, if he understood that if he
was not a United States citizen, he ‘‘may face the conse-
quence of removal, exclusion from readmission to the
[United States] or denial of naturalization, pursuant to
federal law,’’ to which the defendant responded, ‘‘[y]es,
sir.’’ The court then accepted his plea and sentenced
him to a term of incarceration of 364 days.
The defendant completed his sentence on March 17,
2014. On the same day, the Department of Homeland
Security served the defendant with a notice to appear,
alleging that he was removable from the country on the
basis of both his 2011 and 2013 convictions. Subse-
quently, on May 19, 2014, the immigration court ordered
the removal of the defendant to Jamaica.
On February 10, 2015, the self-represented defendant
filed a petition for a writ of error coram nobis, in which
he alleged, inter alia, that he received ineffective assis-
tance from his trial counsel and that, consequently, he
lacked knowledge of the nature and consequences of
the subject charge.2 On this ground, he requested that
the judgment of conviction be opened and vacated.
The court, Alexander, J., held a hearing on the peti-
tion on April 23, 2015. At the hearing, the court indicated
to the parties that it was concerned that it lacked juris-
diction to entertain a petition for a writ of error coram
nobis, stating ‘‘the trial court . . . would be without
jurisdiction to [hear] a habeas claim. Those claims are
handled by habeas courts . . . [s]o an ineffective assis-
tance claim is a matter that is taken before a habeas
court as opposed to the original trial court . . . .’’ The
court nevertheless proceeded to hear evidence on the
merits of the petition. It reviewed a transcript of the
defendant’s plea proceeding, noting that the court had
provided the defendant with the standard advisement
regarding immigration consequences, and heard argu-
ments from the defendant and the state on the merits
of the petition. The defendant argued that he had not
understood that serious immigration consequences,
namely, that his 2013 conviction would render him
deportable and permanently inadmissible to the United
States, would result from his plea, and that his trial
counsel’s failure to advise him of these consequences
constituted ineffective assistance of counsel. The state
argued that the court should deny the petition on juris-
dictional grounds because the defendant had adequate
remedies under the law and could have filed a habeas
petition, a petition for a new trial, a postsentencing
motion to withdraw his guilty plea, or a direct appeal
from his conviction. On August 18, 2015, the court
issued a written memorandum of decision, in which it
denied the defendant’s petition on the merits, holding
that the plea canvass did not violate General Statutes
§ 54-1j. This appeal followed.
During the pendency of this appeal, the defendant
filed a motion for articulation, which requested, inter
alia, that the court specify whether it concluded that
it lacked jurisdiction to hear the claim of ineffective
assistance of counsel raised in the petition. The court
granted this motion in part, stating, ‘‘[y]es, the court
concluded that it lacked jurisdiction to hear a claim of
ineffective assistance of counsel raised in a coram nobis
petition because the defendant had habeas corpus relief
available. State v. Stephenson, 154 Conn. App. 587, 592,
108 A.3d 1125 (2015).’’
The defendant’s sole claim on appeal is that the court
erred in denying his petition on jurisdictional grounds.3
The defendant primarily argues that a writ of habeas
corpus had been unavailable to him because he was
not aware that his guilty plea would have adverse immi-
gration consequences until after his period of incarcera-
tion had ended. In response, the state argues that the
trial court lacked jurisdiction to issue the writ because
the defendant had alternative legal remedies available
to him, such as a writ of habeas corpus or a petition
for a new trial, and that, pursuant to State v. Stephenson,
supra, 154 Conn. App. 592, the relevant question is not
whether the defendant took advantage of those reme-
dies but, rather, whether he could have pursued them.
We agree with the state that the court lacked jurisdic-
tion to consider a petition for a writ of error coram
nobis.
We begin our analysis by setting forth the applicable
standard of review and relevant legal principles. Our
Supreme Court has long held that ‘‘because [a] determi-
nation regarding a trial court’s subject matter jurisdic-
tion is a question of law, our review is plenary. . . .
[A] court lacks discretion to consider the merits of a
case over which it is without jurisdiction . . . .’’ (Inter-
nal quotation marks omitted.) Richardson v. Commis-
sioner of Correction, 298 Conn. 690, 696, 6 A.3d 52
(2010).
‘‘A writ of error coram nobis is an ancient common-
law remedy which authorized the trial judge, within
three years, to vacate the judgment of the same court
if the party aggrieved by the judgment could present
facts, not appearing in the record, which, if true, would
show that such judgment was void or voidable. . . . A
writ of error coram nobis lies only in the unusual situa-
tion where no adequate remedy is provided by law.
. . . Moreover, when habeas corpus affords a proper
and complete remedy the writ of error coram nobis will
not lie.’’ (Citations omitted; internal quotation marks
omitted.) State v. Henderson, 259 Conn. 1, 3, 787 A.2d
514 (2002). ‘‘The errors in fact on which a writ of error
[coram nobis] can be predicated are few. . . . This can
be only where the party had no legal capacity to appear,
or where he had no legal opportunity, or where the court
had no power to render judgment.’’ (Internal quotation
marks omitted.) Hubbard v. Hartford, 74 Conn. 452,
455, 51 A. 133 (1902).
We note at the outset that, pursuant to General Stat-
utes § 52-466 (a) (1),4 the remedy of a writ of habeas
corpus is only available while the petitioner is ‘‘in cus-
tody on the conviction under attack at the time the
habeas petition is filed . . . .’’ (Internal quotation
marks omitted.) Foote v. Commissioner of Correction,
170 Conn. App. 747, 752, 155 A.3d 823, cert. denied, 325
Conn. 902, 155 A.3d 1271 (2017). The record is clear
that the defendant was released from custody on March
17, 2014, and did not file a petition for a writ of habeas
corpus while he was incarcerated.
We are not persuaded by the defendant’s argument
that he could not have pursued a writ of habeas corpus
while in custody because he did not learn of the adverse
immigration consequences until after he was released.
Our recent decisions in State v. Stephenson, supra, 154
Conn. App. 587, and State v. Sienkiewicz, 177 Conn.
App. 863, 172 A.3d 802 (2017), control our analysis of
this issue. In Sienkiewicz, this court held that ‘‘[t]here
can be no doubt . . . that the defendant would have
had the ability to contest the effectiveness of counsel
and the validity of his plea in a habeas action even if
[adverse immigration consequences were] not immi-
nent. In [State v. Stephenson, supra, 589] . . . [t]he
record [did] not reflect that any adverse immigration
consequences [had] yet occurred by the time the defen-
dant was no longer in custody on the sentence in issue,
and [the court] held that the defendant could have
brought an action seeking a writ of habeas corpus. . . .
Stephenson clearly holds that the prior availability of
the writ of habeas corpus defeats the jurisdiction of
the trial court to entertain a petition for a writ of error
coram nobis.’’ (Citations omitted; internal quotation
marks omitted.) State v. Sienkiewicz, supra, 870–71;5
see also State v. Williamson, 155 Conn. App. 215, 221,
109 A.3d 924 (2015) (‘‘[n]either the defendant’s proba-
tionary status nor his federal detention impeded his
ability to petition for a writ of habeas corpus and,
thereby, to raise a claim related to the representation
afforded him by his trial counsel in connection with his
guilty plea’’). We conclude, therefore, that the defendant
had the ability to file a petition for a writ of habeas
corpus at any time that he was in custody.
In addition to a habeas corpus action, the defendant
also had the legal remedy of a petition for a new trial
available to him. General Statutes § 52-270 provides in
relevant part that the court ‘‘may grant a new trial of
any action that may come before it . . . for other rea-
sonable cause,’’ so long as it is brought within three
years after judgment is rendered. See General Statutes
§ 52-582 (‘‘[n]o petition for a new trial in any civil or
criminal proceeding shall be brought but within three
years after the rendition of the judgment’’). Our case
law is clear that ineffective assistance of counsel claims
may be brought in a petition for a new trial. State v.
Taft, 306 Conn. 749, 768, 51 A.3d 988 (2012); see also
State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480 (‘‘a
claim of ineffective assistance of counsel is more prop-
erly pursued on a petition for a new trial or on a petition
for a writ of habeas corpus rather than on direct appeal’’
[internal quotation marks omitted]), cert. denied, 476
U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986). In
this case, the court rendered a judgment of conviction
against the defendant on May 22, 2013. The defendant
filed his petition for a writ of error coram nobis on
February 3, 2015, less than three years after the date
of his conviction. The limitation period on a petition
for a new trial had not yet run, and, therefore, the
defendant could also have pursued this alternative
legal remedy.
In the present case, the defendant was subject to
adverse immigration consequences during the entire
period of his incarceration pursuant to the 2013 convic-
tion. Because he could have raised his ineffective assis-
tance of counsel claim in a habeas petition while he
was in custody or in a petition for a new trial for a
period of three years subsequent to the date of his
conviction, he had alternative legal remedies available
to him. Stephenson and Sienkiewicz clearly hold that
the prior availability of an alternative legal remedy
defeats the jurisdiction of the trial court to entertain a
petition for a writ of error coram nobis. State v. Stephen-
son, supra, 154 Conn. App. 592; State v. Sienkiewicz,
supra, 177 Conn. App. 871. Having determined that the
court lacked subject matter jurisdiction to consider the
petition for a writ of error coram nobis, we conclude
that the court should have dismissed rather than denied
the petition.6 See State v. Stephenson, supra, 592 (form
of judgment improper where trial court denied petition
for writ of error coram nobis over which it lacked juris-
diction); see also Turner v. State, 172 Conn. App. 352,
354, 160 A.3d 398 (2017) (trial court should have dis-
missed rather than denied petition for new trial over
which it lacked subject matter jurisdiction).
The form of the judgment is improper, the judgment
denying the petition for a writ of error coram nobis is
reversed and the case is remanded with direction to
render judgment dismissing the petition for a writ of
error coram nobis.
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
In his petition for writ of coram nobis and his principal brief to this
court, the defendant also claimed that the trial court erred in denying his
claim that the court’s canvass during his plea hearing was defective under
General Statutes § 54-1j. The defendant subsequently withdrew this claim
following the recent decision by our Supreme Court in State v. Lima, 325
Conn. 623, 630–31, 159 A.3d 651 (2017), which held that § 54-1j (a) does not
require the trial court to ‘‘inquire directly of the defendant as to whether
he has spoken with counsel about the possible immigration consequences
of pleading guilty before the court accepts the defendant’s guilty plea.’’
3
The defendant claims in his brief that the trial court ‘‘erred when it
dismissed [his] writ of error coram nobis.’’ Similarly, the state claims that
the trial court ‘‘properly dismissed [the writ].’’ Our review of the record,
however, reveals that the court denied rather than dismissed the defen-
dant’s petition.
4
General Statutes § 52-466 (a) (1) provides in relevant part: ‘‘An application
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.’’
5
Perhaps recognizing the binding precedent of State v. Stephenson, supra,
154 Conn. App. 587, and State v. Sienkiewicz, supra, 177 Conn. App. 863,
the defendant has also urged us to overrule them. Consistent with this claim,
on August 3, 2017, the defendant filed a motion requesting that this court
hear the appeal en banc. That motion was denied by this court on September
14, 2017.
6
In light of this conclusion, we do not reach the state’s alternative argu-
ment in which it calls into question the viability of the writ of error coram
nobis. See State v. Sienkiewicz, supra, 177 Conn. App. 869 (‘‘[w]e decline
the state’s invitation to announce the demise of the writ of error coram
nobis’’); see also State v. Stephenson, supra, 154 Conn. App. 590 n.4 (‘‘The
state argues that, because of more recently created remedies, such as the
petition for a new trial, the writ of coram nobis should be jettisoned . . . .
We need not decide this issue, however, because even if the remedy does
exist, the prerequisites for granting relief were not met here’’).