125 Conn. App. 624
Conn. App. Ct.2010Background
- Petitioner John Taylor was convicted in 2004 of possession of narcotics and possession within 1500 feet of a school, receiving a total term of three years; appeal affirmed in State v. Taylor, 101 Conn. App. 160 (2007).
- Taylor filed a habeas corpus petition in 2005 alleging ineffective assistance of counsel; attorney Neary was appointed in 2005 and filed an appearance.
- A scheduling order was entered April 8, 2008, setting deadlines and a trial for August 12, 2008; a motion to modify the scheduling order to January 2009 was denied on August 7, 2008.
- On August 12, 2008, neither Taylor nor his attorney appeared for trial; the court dismissed the claims with prejudice and ordered the attorney to show cause for possible fines.
- On August 25, 2008, counsel moved to open and vacate the judgment, citing lack of access to discovery materials and illness; the court denied this motion on September 10, 2008.
- Taylor pursued certification to appeal, which the habeas court denied; the petition for certification to appeal was also denied on appeal; the court concluded the trial dismissal violated Practice Book § 23-40.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the denial of certification to appeal was an abuse of discretion | Taylor argues the underlying due process and right to a fair appeal were violated | Laboring to uphold scheduling and dismissal rules, the state contends no abuse of discretion | Yes; certification to appeal properly reversed for abuse of discretion |
| Whether the motion to open and to vacate the judgment was properly denied without ensuring petitioner’s right to be present | Taylor and counsel were not notified of the scheduling order and thus deprived of the right to be present | The court can dismiss under scheduling orders and due diligence rules without always notifying petitioner | Yes; the court abused discretion by dismissing without affording the petitioner the right to be present |
| Whether the habeas court should have conducted a hearing on the motion to open and vacate | Due process required a hearing with the petitioner present | No automatic requirement for a hearing in every such motion | Yes; remand for a hearing on the motion to open and vacate |
Key Cases Cited
- Greene v. Commissioner of Correction, 123 Conn. App. 121 (Conn. App. 2010) (abuse of discretion standard for cert. to appeal; underlying merits considered)
- Gianetti v. Gerardi, 122 Conn. App. 126 (Conn. App. 2010) (review of motion to open/reargue/vacate; § 23-40(a) right to be present)
- Mercer v. Commissioner of Correction, 230 Conn. 88 (Conn. 1994) (right to be present at dispositive proceedings; habeas context)
- Mitchell v. Commissioner of Correction, 93 Conn. App. 719 (Conn. App. 2006) (right to be present; due process in dispositive matters)
- Hickey v. Commissioner of Correction, 82 Conn. App. 25 (Conn. App. 2004) (presence not always required; context of habeas proceedings)
- Osborne v. Osborne, 2 Conn. App. 635 (Conn. App. 1984) (presence may not be categorically required for court to act)
- Fuller v. Commissioner of Correction, 75 Conn. App. 814 (Conn. App. 2003) (dismissal for lack of due diligence; § 14-31; catchall § 23-29(5))
- Segretario v. Stewart-Warner Corp., 9 Conn. App. 355 (Conn. App. 1986) (nonsuit and dismissal mechanisms; impact on habeas)