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Hodge v. Commissioner of Correction
HODGE v. COMMISSIONER OF CORRECTION
(AC 46580)
Alvord, Moll and Seeley, Js.
Syllabus
The petitioner, who had been convicted of various crimes in connection
with a fatal hit-and-run accident, sought a writ of habeas corpus, claim-
ing, inter alia, that certain changes to a risk reduction earned credit
program had been improperly applied to him by the respondent, the
Commissioner of Correction. The habeas court, sua sponte and without
providing the petitioner with prior notice or an opportunity to be heard,
dismissed the petitioner’s first amended petition pursuant to the rule
of practice (§ 23-29), concluding that it lacked subject matter jurisdiction
over that petition and that the petition failed to state a claim on which
habeas corpus relief could be granted. In the petitioner’s prior appeal
to this court, this court held that the habeas court was required to
provide to the petitioner prior notice of its intention to dismiss, on its
own motion, the petition and an opportunity to submit a brief or a
written response addressing the proposed basis for dismissal, which it
did not do. Accordingly, this court remanded the case to the habeas
court for further proceedings. On remand, the habeas court issued the
requisite notice to the parties, and the petitioner, rather than addressing
the jurisdiction of the court over the first amended petition, filed a
second amended petition and a memorandum addressing why the claims
asserted in his second amended petition were not subject to dismissal.
The petitioner’s claims in his second amended petition included, inter
alia, two statutory interpretation claims challenging the respondent’s
interpretation of certain amendments to the statute (§ 54-125a) govern-
ing eligibility for parole and risk reduction earned credit. The court
rejected the second amended petition in light of the pendency of the
court’s own motion to dismiss and subsequently dismissed the petition-
er’s first amended petition, reasoning that, in light of the petitioner’s
failure to respond to the court’s order to address the legal sufficiency
of the first amended petition, he had abandoned those claims. On the
granting of certification, the petitioner appealed to this court, challenging
only the habeas court’s rejection of his second amended petition. After
the briefs in the present appeal were filed, but before oral argument
was held before this court, the petitioner completed his underlying
sentence. Held that the appeal was dismissed as moot, this court having
concluded that, even if it were to assume that the habeas court erred
in rejecting the second amended petition, there was no practical relief
that could be afforded to the petitioner with respect to the claims
asserted therein: with respect to the petitioner’s statutory interpretation
claims, the petitioner did not have a present interest in the calculation
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Hodge v. Commissioner of Correction
of his risk reduction earned credits with regard to his parole eligibility
date or in a parole suitability hearing; moreover, with respect to the
petitioner’s claims challenging the circumstances surrounding his deci-
sion to plead guilty, the petitioner did not seek the vacatur of his guilty
pleas, and therefore no practical relief remained in connection with
those claims; furthermore, with respect to the petitioner’s claim challeng-
ing the performance of his criminal trial counsel during his sentencing
hearing, although the petitioner’s counsel stated during oral argument
before this court that, notwithstanding the completion of his sentence,
the petitioner still purportedly sought a new sentencing hearing, in light
of the fact that he had fully served his sentence, there was no practical
relief that could be afforded to him.
Argued April 8—officially released May 7, 2024
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland, where the court, Hon. Edward J. Mullarkey,
judge trial referee, rendered judgment dismissing the
petition; thereafter, the petitioner, on the granting of
certification, appealed to this court, Elgo, Moll and
Clark, Js., which reversed the judgment of the habeas
court and remanded the case for further proceedings;
subsequently, the court, Newson, J., rendered judgment
dismissing the petition, from which the petitioner, on
the granting of certification, appealed to this court.
Appeal dismissed.
Vishal K. Garg, assigned counsel, for the appellant
(petitioner).
Lisamaria T. Proscino, assistant attorney general,
with whom, on the brief, was William Tong, attorney
general, for the appellee (respondent).
Opinion
PER CURIAM. This case returns to us following the
remand ordered in Hodge v. Commissioner of Correc-
tion, 216 Conn. App. 616, 624, 285 A.3d 1194 (2022).
The petitioner, Marcus Hodge, appeals, following the
grant of his petition for certification to appeal, from
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Hodge v. Commissioner of Correction
the judgment of the habeas court dismissing, on its
own motion, his amended petition for a writ of habeas
corpus dated November 15, 2017 (first amended peti-
tion). On appeal, the petitioner claims that the court
erred in rejecting the filing of his six count amended
petition dated February 21, 2023 (second amended peti-
tion). Because there is no practical relief that we can
afford the petitioner, who has fully served his underly-
ing sentence, we dismiss the appeal as moot.
A comprehensive recitation of the relevant factual
and procedural background, which is not necessary to
repeat in this opinion, is set forth in Hodge v. Commis-
sioner of Correction, supra, 216 Conn. App. 616. It suf-
fices to state that, following the entry of guilty pleas in
October, 2011, to charges arising out of a fatal hit-and-
run accident, the petitioner was convicted of man-
slaughter in the second degree in violation of General
Statutes § 53a-56 (a) (1), evading responsibility in the
operation of a motor vehicle in violation of General
Statutes (Rev. to 2009) § 14-224 (a), and failure to regis-
ter as a sex offender in violation of General Statutes
(Rev. to 2009) § 54-251. The court, Alexander, J., sen-
tenced the petitioner to a total effective sentence of
fifteen years of incarceration without the imposition of
probation or special parole.1 While he was serving his
sentence, he filed in the present action, inter alia, his
first amended petition, which the habeas court, Hon.
Edward J. Mullarkey, judge trial referee, dismissed on
its own motion pursuant to Practice Book § 23-29. See
Hodge v. Commissioner of Correction, supra, 619.
In the petitioner’s appeal from the court’s dismissal
of his first amended petition, this court held that ‘‘the
1
This court has taken judicial notice of the petitioner’s December 16,
2011 sentencing proceeding and notes that the court, Alexander, J., also
concomitantly sentenced the petitioner in a separate violation of probation
file to seven years and three months of incarceration and two years of
incarceration in each of three other violation of probation files, all to run
concurrently.
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Hodge v. Commissioner of Correction
habeas court committed error in dismissing the [first]
amended habeas petition pursuant to [Practice Book]
§ 23-29 without providing to the petitioner prior notice
of its intention to dismiss, on its own motion, the [first]
amended habeas petition and an opportunity to submit
a brief or a written response addressing the proposed
basis for dismissal.’’ Id., 617–18. We went on to ‘‘con-
clude that the proper remedy is to reverse the judgment
of dismissal and remand the case to the habeas court
for further proceedings according to law. Should the
habeas court again elect to exercise its discretion to
dismiss the [first] amended petition, or any subsequent
amended petition properly filed by the petitioner, on
its own motion pursuant to . . . § 23-29, the court must
comply with the mandate of Brown [v. Commissioner
of Correction, 345 Conn. 1, 282 A.3d 959 (2022)] and
Boria [v. Commissioner of Correction, 345 Conn. 39,
282 A.3d 433 (2022)] by providing to the petitioner prior
notice and an opportunity to submit a brief or a written
response addressing the proposed basis for dismissal.’’
Hodge v. Commissioner of Correction, supra, 216 Conn.
App. 624.
On remand, the habeas court, Newson, J., issued the
requisite notice to the petitioner and the respondent,
the Commissioner of Correction.2 After an extension of
2
The notice provided: ‘‘NOTICE OF POSSIBLE DISMISSAL PURSUANT
TO PRACTICE BOOK § 23-29
‘‘Pursuant to the remand order of the Appellate Court, upon review of
the complaint in the above-titled matter, the court hereby gives notice pursu-
ant to Practice Book § 23-29 that the court will consider whether the petition,
or certain counts thereof, should be dismissed for the following reasons:
‘‘(1) the court lacks jurisdiction;
‘‘(2) the petition, or a count thereof, fails to state a claim upon which
habeas corpus relief can be granted;
‘‘(5) any other legally sufficient ground for dismissal of the petition exists.
‘‘MORE SPECIFICALLY: Since the petitioner’s offense date preceded
enactment of the [risk reduction earned credit] statute he now asserts the
benefit of, should his claim(s) be dismissed.
‘‘Pursuant to the case of Brown v. Commissioner of Correction, [supra,
345 Conn. 1], the parties shall have until January 20, 2023, to submit any
legal memorandum they wish the court to consider in its decision.’’
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Hodge v. Commissioner of Correction
time, on February 21, 2023, instead of filing the contem-
plated submission defending the jurisdiction of the
court over the first amended petition, the petitioner
simultaneously filed (1) the second amended petition
and (2) a ‘‘memorandum re: jurisdiction’’ addressing
why the claims asserted in his second amended petition
were not subject to dismissal.
With respect to the second amended petition, the
petitioner asserted the following claims: (1) a so-called
statutory interpretation claim challenging (a) the
respondent’s interpretation of No. 13-3 of the 2013 Pub-
lic Acts, § 59, which amended subsections (b) (2), (c),
and (e) of General Statutes (Rev. to 2013) § 54-125a,
and (b) the resulting calculation of the petitioner’s risk
reduction earned credits (RREC) vis-à-vis his parole
eligibility date (count one); (2) a so-called statutory
interpretation claim challenging (a) the respondent’s
interpretation of No. 13-247 of the 2013 Public Acts,
§ 376, which amended subsections (d) and (e) of Gen-
eral Statutes (Rev. to 2013) § 54-125a, and (b) the
resulting refusal by the respondent to hold a parole
suitability hearing (count two); (3) a Santobello3 claim
and an ineffective assistance of counsel claim challeng-
ing the circumstances surrounding the petitioner’s deci-
sion to plead guilty (counts three and four, respec-
tively); (4) an ineffective assistance of counsel claim
challenging the petitioner’s criminal trial counsel’s per-
formance at the petitioner’s sentencing hearing (count
‘‘In Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 30 L. Ed. 2d
3
427 (1971), the United States Supreme Court stated that ‘the adjudicative
element inherent in accepting a plea of guilty, must be attended by safeguards
to [en]sure the defendant what is reasonably due in the circumstances.
Those circumstances will vary, but a constant factor is that when a plea
rests in any significant degree on a promise or agreement of the prosecutor,
so that it can be said to be part of the inducement or consideration, such
promise must be fulfilled.’ ’’ State v. Hurdle, 217 Conn. App. 453, 470, 288
A.3d 675, cert. granted, 346 Conn. 923, 295 A.3d 420 (2023).
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Hodge v. Commissioner of Correction
five); and (5) a due process claim challenging the prose-
cutor’s alleged rescission of an agreement to a sentence
modification hearing (count six).
On February 21, 2023, the court rejected the second
amended petition in light of the pendency of the court’s
own motion to dismiss.4 On February 27, 2023, the peti-
tioner filed a ‘‘request to accept and docket amended
petition for a writ of habeas corpus,’’ which the court
denied that same day. On March 30, 2023, the court
dismissed the petitioner’s first amended petition, rea-
soning that, in light of the petitioner’s failure to respond
to the court’s order to address the legal sufficiency of
the first amended petition, he had abandoned those
claims. Thereafter, the petitioner filed a petition for
certification to appeal, which the court granted. This
appeal followed.
On January 8, 2024, between the filing of the appeal
and oral argument before this court, the petitioner com-
pleted his underlying sentence. On appeal, the peti-
tioner exclusively challenges the court’s rejection of
the petitioner’s second amended petition. For the rea-
sons that follow, we dismiss the appeal as moot.
‘‘Mootness implicates [this] court’s subject matter
jurisdiction and is thus a threshold matter for us to
resolve. . . . It is a [well settled] general rule that the
4
Specifically, the court stated: ‘‘This matter was remanded from the Appel-
late Court with specific directions on the issue to be addressed, namely,
whether the [first amended] petition should be dismissed.
‘‘Based on that remand order, this court issued notice to the parties (Order
#119.00) to respond in writing whether the matter should be dismissed
because the habeas court lacked jurisdiction over the claims made in the
initial action. Further pleadings not directly addressing the issue of the
motion to dismiss are not appropriate until such time as [the question of]
whether the jurisdiction of the habeas court was properly invoked by the
content of the original petition has been answered. [See] Marshall v. Com-
missioner of Correction, 206 Conn. App. 461, 470, 261 A.3d 49, [cert. denied,
338 Conn. 916, 259 A.3d 1180 (2021)].’’
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Hodge v. Commissioner of Correction
existence of an actual controversy is an essential requi-
site to appellate jurisdiction; it is not the province of
appellate courts to decide moot questions, discon-
nected from the granting of actual relief or from the
determination of which no practical relief can follow.
. . . An actual controversy must exist not only at the
time the appeal is taken, but also throughout the pen-
dency of the appeal. . . . When, during the pendency
of an appeal, events have occurred that preclude an
appellate court from granting any practical relief
through its disposition of the merits, a case has become
moot. . . . [A] subject matter jurisdictional defect may
not be waived . . . [or jurisdiction] conferred by the
parties, explicitly or implicitly. . . . [T]he question of
subject matter jurisdiction is a question of law . . .
and, once raised, either by a party or by the court itself,
the question must be answered before the court may
decide the case.’’ (Internal quotation marks omitted.)
Brookstone Homes, LLC v. Merco Holdings, LLC, 208
Conn. App. 789, 798–99, 266 A.3d 921 (2021).
Mindful of the foregoing principles, we conclude that,
even if we were to assume arguendo that the court
erred in rejecting the second amended petition, there
is no practical relief that can be afforded to the peti-
tioner with respect to the claims asserted therein. With
respect to the petitioner’s so-called statutory interpreta-
tion claims set forth in counts one and two, the peti-
tioner does not have a present interest in the calculation
of his RREC credits vis-à-vis his parole eligibility date
or in a parole suitability hearing. With respect to the
petitioner’s Santobello and ineffective assistance of
counsel claims set forth in counts three and four, which
challenge the circumstances surrounding his decision
to plead guilty, the petitioner does not seek the vacatur
of his guilty pleas, as confirmed by the petitioner’s coun-
sel during oral argument before this court. No practical
relief remains, therefore, in connection with those
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Hodge v. Commissioner of Correction
claims. With respect to count five, in which the peti-
tioner challenges the performance of his criminal trial
counsel during his sentencing hearing, although the
petitioner’s counsel stated during oral argument that,
notwithstanding the completion of his sentence, the
petitioner still purportedly seeks a new sentencing hear-
ing, we conclude that, in light of the fact that he has
fully served his sentence, there is no practical relief
that can be afforded to him. Finally, with respect to
count six, the petitioner’s counsel abandoned such
claim during oral argument before this court. See Ayala
v. Smith, 236 Conn. 89, 94, 671 A.2d 345 (1996) (‘‘[t]he
determination of whether a claim has become moot is
fact sensitive, and may include the representations
made by the parties at oral argument’’). In sum, because
we cannot afford the petitioner any practical relief, we
dismiss the appeal as moot.5
The appeal is dismissed.
5
We note that, in his principal appellate brief, the petitioner appeared to
acknowledge that, ‘‘as a result of the dismissal, it is likely that the petitioner’s
opportunity to litigate a habeas corpus case challenging the length of his
period of incarceration—which is the issue he seeks to raise—will become
moot, as he will have finished the sentence and parole by the time he is
able to have a trial on the merits of his claims and may be in a position
where practical relief is unavailable to him.’’
In his appellee brief filed in December, 2023, the respondent agreed,
arguing that ‘‘the appeal should be dismissed as moot after January 8, 2024,
when the petitioner is scheduled to be discharged from the respondent’s
custody without any special parole or probation.’’ The respondent relied on
Patterson v. Commissioner of Correction, 112 Conn. App. 826, 964 A.2d
1234 (2009), in which the petitioner in that case, who sought to challenge
his classification as a ‘‘violent offender’’ by the Board of Pardons and Paroles,
completed his sentence prior to oral argument before this court. See id.,
828–29. This court concluded that the expiration of the petitioner’s sentence
rendered his appeal moot and that he did not satisfy his burden to show that
‘‘there is a reasonable possibility that prejudicial collateral consequences
will occur as a result of the allegedly improper classification . . . .’’ Id., 834.
In his reply brief, the petitioner changed his position, contending that the
completion of his sentence does not render the appeal moot. As an initial
matter, the petitioner argues that Patterson is an outlier and instead relies
on two cases standing for the overly broad proposition that a habeas corpus
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Hodge v. Commissioner of Correction
action survives a petitioner’s release from custody. The petitioner’s reliance
on those cases is misplaced, however, because in those cases, the petitioners
brought claims challenging the legality of their convictions. See Herbert v.
Manson, 199 Conn. 143, 144 n.1, 506 A.2d 98 (1986) (‘‘[i]n attacking the
legality of his conviction [i.e., by alleging that his convictions of the crimes
of sexual assault in the first degree and kidnapping in the second degree
should be overturned because of ineffective assistance of counsel], the
petitioner has stated a claim that survives his release from incarceration
and parole’’); Smith v. Commissioner of Correction, 65 Conn. App. 172,
176, 782 A.2d 201 (2001) (‘‘[i]n attacking the legality of his conviction in a
habeas corpus action [i.e., by alleging that his guilty plea to an assault in
the second degree charge was not made knowingly, intelligently, or volunta-
rily], the petitioner’s claim survives his release from incarceration’’). Here,
the petitioner’s counsel expressly acknowledged during oral argument
before this court that the petitioner is not attacking his convictions.
Further, the petitioner argues, in the alternative, that, even if deemed
moot, the petitioner’s claims satisfy the capable of repetition yet likely to
evade review exception to the mootness doctrine. See Loisel v. Rowe, 233
Conn. 370, 382, 660 A.2d 323 (1995) (exception has three requirements: (1)
challenged action must be of inherently limited duration; (2) there must be
reasonable likelihood that question presented will arise again and it will
affect either same complaining party or reasonably identifiable group for
whom that party can be said to act as surrogate; and (3) question must have
some public importance). This argument warrants little discussion. Instead
of analyzing how the nature of the petitioner’s habeas claims satisfies the
three part test for this exception set forth in Loisel, the petitioner launches
unjustified and unsupported criticisms at the intentions of the habeas court
and the manner in which it handles RREC related cases. Simply put, the
petitioner has provided us with no basis on which to conclude that the three
requirements set forth in Loisel are satisfied.
Finally, to the extent the petitioner’s counsel attempted to invoke the
collateral consequences exception to the mootness doctrine during oral
argument before this court, we do not consider them because ‘‘[i]t is well
settled that a claim cannot be raised for the first time at oral argument.’’
(Internal quotation marks omitted.) Burton v. Dept. of Environmental Pro-
tection, 337 Conn. 781, 797 n.12, 256 A.3d 655 (2021).