MICHAEL KENDALL v. COMMISSIONER OF CORRECTION
AC 36698
Appellate Court of Connecticut
December 22, 2015
Sheldon, Keller and Sullivan, Js.
Argued September 11
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Stephanie L. Evans, assigned counsel, for the appellant (petitioner).
Bruce R. Lockwood, senior assistant state‘s attorney, with whom, on the brief, were Gail P. Hardy, state‘s attorney, Susann E. Gill, supervisory assistant state‘s attorney, and Erika L. Brookman, assistant state‘s attorney, for the appellee (respondent).
SULLIVAN, J. The petitioner, Michael Kendall, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court erred when it denied his request to withdraw his petition without prejudice. We agree with the petitioner and, accordingly, reverse the judgment of the habeas court.
The record reveals the following relevant facts and procedural history. Following a jury trial, the petitioner was found guilty of two counts of capital felony, three counts of murder, and one count of arson in the first degree. He was sentenced to life imprisonment without the possibility of release and a consecutive twenty-five year term on the arson charge. This court affirmed the petitioner‘s conviction on direct appeal. See State v. Kendall, 123 Conn. App. 625, 2 A.3d 990, cert. denied, 299 Conn. 902, 10 A.3d 521 (2010).
On December 13, 2010, the petitioner filed an application for a writ of habeas corpus. On September 22, 2011, the petitioner moved for appointment of counsel, which was granted on October 11, 2011. Subsequent to the appointment of counsel, the petitioner amended his petition on several occasions, with the most recent petition filed on November 29, 2013. The grounds asserted in the operative petition are ineffective assistance of trial counsel, a violation of the petitioner‘s constitutional right to confrontation, and the trial court‘s failure to instruct the jury on the petitioner‘s mental capacity. The respondent, the Commissioner of Correction (commissioner), filed a return to this amended petition on December 9, 2013, to which the petitioner replied on December 10, 2013. No motion to dismiss pursuant to Practice Book § 23-29 or motion for summary judgment pursuant to Practice Book § 23-37 was filed prior to the commencement of the habeas trial.
This case originally was scheduled for trial on January 23, 2013. On October 2, 2012, the petitioner moved for a continuance, which was granted on October 11, 2012. Subsequently, the case was rescheduled for December 10 and 11, 2013. Each scheduling order contained language warning that any withdrawals should be filed no later than one week before the trial date and that any party attempting to withdraw after that date would be required to show cause why his case should not be “dismissed with prejudice.”
On December 10, 2013, the day that the habeas court, Sferrazza, J., was scheduled to hear this matter, but prior to Judge Sferrazza‘s taking the bench, the habeas counsel for the petitioner, Peter Tsimbidaros, informed the court in chambers that the petitioner wished to address the court directly. After Judge Sferrazza took the bench, habeas counsel explained that the particular matter concerned “a typewritten pro se motion” that
Immediately following the denial of his oral motion, habeas counsel informed the court that the petitioner did not want to proceed. When the court inquired if the petitioner wanted to withdraw his petition, the petitioner responded: “I prefer to go on the record and continue with the petition on the conflict, but you said there‘s no conflict of interest.” The court restated that there was no conflict of interest. It also stated, both on its own and in a subsequent response to the petitioner‘s direct question, that it would allow a withdrawal of the petition, but only with prejudice, and explained the consequences of such a withdrawal. The petitioner‘s habeas counsel then proceeded to call the petitioner as his first witness, and the petitioner indicated prior to being placed under oath that he did not “want to go forward with this at all.”
After being placed under oath, the petitioner was asked two questions concerning the identity of the attorneys who had represented him during his criminal trial, which he answered. The petitioner then restated that he was uncomfortable proceeding with his petition. The court responded: “Well, your only options are to go forward with the trial today, or withdraw it with prejudice . . . .” At this point, habeas counsel objected to a withdrawal being entered with prejudice. The court inquired further whether the petitioner wished to proceed with this matter, reiterated a final time that any withdrawal would be with prejudice, and informed him of the consequences of not testifying at the hearing. Habeas counsel again interjected, seeking to state more clearly the basis for his objection. Noting that the record had been made, the court articulated its position as to why it would only grant a withdrawal with prejudice and stated, “that‘s the ruling of the court.” After inquiring one last time whether the petitioner intended to testify, to which the petitioner responded that he did not, the court excused the petitioner from the witness stand.
Following the court‘s excusal of the petitioner from the witness stand, habeas counsel moved to admit a number of exhibits, all of which were admitted, and called to the witness stand one of the attorneys who represented the petitioner. No additional witnesses were called by either side.
On March 11, 2014, the trial court issued its memorandum of decision denying the amended petition. In relevant part, the court addressed in greater depth its ruling
We begin by setting out the standards of review governing this appeal. The decision by a habeas court to condition a withdrawal of a habeas petition on that withdrawal being “with prejudice” is, when authorized, a decision left to that court‘s discretion. See Mozell v. Commissioner of Correction, 147 Conn. App. 748, 759-60, 83 A.3d 1174, cert. denied, 311 Conn. 928, 86 A.3d 1057 (2014). The determination of when
Neither party disputes that
In response, the commissioner urges us to uphold the habeas court‘s determination that the habeas trial had commenced when the judge took the bench to hear evidence on the date and time assigned. Arguing that the statute itself contains internal ambiguities — relying, in particular, on the language that the withdrawal is unfettered before “the commencement of a hearing on the merits” begins, but limited to cause “[a]fter the commencement of a hearing on an issue of fact,” and the lack of guidance as to whether a hearing may commence prior to the introduction of evidence — the commissioner asserts that the statute is not plain and unambiguous and that recourse to extratextual sources, therefore, is appropriate. Turning to the history of
“When construing a statute, [o]ur fundamental objective 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,
“Notwithstanding the passage of
This court on two prior occasions has considered claims involving the intersection of
On appeal, Melendez, having failed to raise his claim concerning
The following year, this court decided Mozell v. Commissioner of Correction, supra, 147 Conn. App. 751, a case that similarly required the court to consider a motion to withdraw a habeas action on the day that the habeas trial was scheduled to begin. In that case, the court granted the respondent‘s motion to dismiss three of the four counts in the habeas petition. Id. Following a request to amend the petition, which the court denied, Troy Mozell addressed the court and indicated that he wished to withdraw the remaining count of his habeas petition. Id. Following a recess to allow Mozell to discuss the matter with his counsel, the court noted that any withdrawal would be allowed only with prejudice and explained the potential consequences of such a withdrawal. Id., 751-52. Mozell affirmed that he wanted to withdraw, and the court granted his withdrawal. Id., 752.
On appeal, Mozell argued that the habeas court erred in conditioning his withdrawal on its being with prejudice.4 Id., 756. This court reaffirmed that a habeas court is authorized to grant a withdrawal with prejudice and that imposing that condition in that case did not violate Mozell‘s constitutional rights because a valid waiver existed. See id., 757-59. This court held that the habeas court had acted within its discretion in adding “with prejudice” to the withdrawal, noting, inter alia: “Witnesses had been subpoenaed and were in court ready to proceed; expense such as setting up videoconferencing for a witness in Nevada had been incurred; evidence had begun, according to the respondent‘s counsel, in that some exhibits had already been admitted in full; this was the petitioner‘s third habeas action; and that [t]his is not exactly a new thing for [the petitioner] to get to trial and be unhappy and attempt to withdraw.” (Footnote omitted; internal quotation marks omitted.) Id., 760. In a footnote following its consideration that evidence had begun in the habeas action at the time the request to withdraw was granted, the court observed that Mozell had not invoked
In addition to the cases addressing
Our precedent reflects that, when determining whether a hearing on an issue of fact had commenced, Connecticut courts have considered the nature of the action and the particular type of hearing involved. See Spears v. Kerars Realty Co., supra, 171 Conn. 701-704; Grimm v. Grimm, supra, 74 Conn. App. 410 n.3. The courts have conducted less individualized examinations, however, with respect to hearings on the merits, particularly where the hearing in question is a trial before the court. In those instances, it was deemed sufficient that the case had been scheduled to proceed on the merits and the court had taken some step in receiving evidence on those merits. See Grimm v. Grimm, supra, 410 (testimony of plaintiff, no matter how brief, on day assigned for trial sufficient); cf. Mozell v. Commissioner of Correction, supra, 147 Conn. App. 760 (habeas proceeding was scheduled on date in question and “evidence had begun . . . in that some exhibits had already been admitted in full“);8 Melendez v. Commissioner of Correction, supra, 141 Conn. App. 843 (noting “lack of clarity” concerning whether hearing on merits had commenced because case was scheduled
Our precedent is, in this respect, consistent with the plain and unambiguous language of the statute. Under
We return to the language of
The term “hearing,” by itself, is capable of considerable broadness; therefore, our courts generally have recognized that the term, standing alone, is inconclusive as to what is required of the court. See, e.g.,
The present language of
Other dictionaries of the time period in question also define “hearing.” For example, the Century Dictionary and Cyclopedia provides the following definition for “hearing“: “Audience; opportunity to be heard. . . . A judicial investigation of a suit at law; attention to and consideration of the testimony and arguments in a cause between parties, with a view to a just decision: especially used of trial without a jury.” 4 Century Dictionary and Cyclopedia (1911). The New Century Dictionary of the English Language defines “hearing” as “a formal or official listening or an audience given; esp., a judicial listening to testimony and arguments, as in a suit at law . . . .” 1 New Century Dictionary of the English Language (1929).
Under the statute, the requisite hearing is either one “on the merits” or “on an issue of fact . . . .”
Turning to “issue of fact,” Ballentine‘s Law Dictionary defines that phrase as “[s]uch an issue as is made by the pleadings in a civil action, where the facts alleged, constituting the cause of action, are denied.” Ballentine‘s Law Dictionary, supra. Other legal dictionaries of the time define “issue in fact” as “one in which the truth of some fact is affirmed and denied“; Cyclopedic Law Dictionary, supra; and, in pleading, “[a]n issue
Pursuant to
Thus, with respect to a hearing on the merits, a party‘s right to unilaterally withdraw an action or petition ceases when the presiding authority begins or initiates formally a proceeding in which it will make a substantive determination concerning the legal or factual issues in the case. Both contemporaneous understandings of the word “hearing” and the present definition of “hearing on the merits” recognize the role of evidence, testimony, and argument in the ultimate determination that the court is called to make. Additionally, applying the word “merits,” as construed through applicable dictionaries of the period, to the “hearing” in question demonstrates that the proceeding must concern the facts and law governing the strict legal rights of the parties as opposed to merely procedural or ancillary matters. Therefore, construing the term “before the commencement of a hearing on the merits” to include that period when a judge has taken the bench, but has not yet begun to address any of the substantive issues in the case, is a less plausible interpretation of that statute than one that focuses on the presentation of arguments or evidence concerning those merits.
We turn now from the language of
Although the term “commence” has received limited explication in the context of
Nevertheless, the comparison between the statutes remains helpful for two reasons. First, the words “before” and “prior to,” when used as prepositions in the context of defining a preceding event, are the functional equivalents of one another. See Webster‘s Third New International Dictionary (1993) (defining “before” as “preceding [a point, turn, or incident in time]” and “prior to” as “in advance of; BEFORE“). Second, our Supreme Court‘s analysis in Krawiec demonstrates that, when interpreting a statute concerning a proce-
Further, “[h]abeas corpus is a civil proceeding. . . . It is a legal and not an equitable remedy. . . . The application for a writ of habeas corpus is regarded as a pleading in the nature of a complaint . . . and the return in the nature of an answer. . . . The pleadings in this case are so framed and when issue is joined the evidence must be relevant to those issues.” (Citations omitted; internal quotation marks omitted.) Daniel v. Commissioner of Correction, 57 Conn. App. 651, 654 n.3, 751 A.2d 398, cert. denied, 254 Conn. 918, 759 A.2d 1024 (2000). “A habeas corpus action, as a variant of civil actions, is subject to the ordinary rules of civil procedure, unless superseded by the more specific rules pertaining to habeas actions.” (Internal quotation marks omitted.) Betancourt v. Commissioner of Correction, 132 Conn. App. 806, 812, 35 A.3d 293, cert. denied,
“The [habeas] proceeding is summary in the sense that it should be heard promptly, without continuances . . . but the use of the word also implies that the proceeding should be short, concise and conducted in a prompt and simple manner, without the aid of a jury, or in other respects out of the regular course of the common law.” (Citation omitted; internal quotation marks omitted.) State v. Phidd, 42 Conn. App. 17, 31, 681 A.2d 310, cert. denied, 238 Conn. 907, 679 A.2d 2 (1996), cert. denied, 520 U.S. 1108, 117 S. Ct. 1115, 137 L. Ed. 2d 315 (1997); see also Practice Book § 23-34 (“[t]he judicial authority may establish such additional procedures as it determines will aid in the fair and summary disposition of habeas corpus petitions, including, but not limited to, scheduling orders“). A habeas proceeding is heard by the court or judge, not a jury. See
On the basis of foregoing authority, neither of the commissioner‘s arguments that
We also disagree with the commissioner‘s second argument that the term “commence” itself is ambiguous in this context. When legally required to hold a hearing on a habeas petition, the scope of any such judicial examination necessarily requires the consideration of the evidence and arguments produced by the parties. See Mercer v. Commissioner of Correction, supra, 230 Conn. 93. Thus, although the resolution of certain preliminary matters that might overlap with the merits of a habeas petition or a petitioner‘s own actions might make it challenging to determine whether a hearing on the merits has commenced in specific instances, given the summary nature of habeas proceedings; see Mozell v. Commissioner of Correction, supra, 147 Conn. App. 751, 759-60; Melendez v. Commissioner of Correction, supra, 141 Conn. App. 843-44; it is difficult to comprehend how a hearing on the merits of a habeas petition could ever commence for purposes of
After examining the record,
The commissioner nevertheless argues that, if we determine that the habeas hearing only commenced, pursuant to
The circumstances in Melendez are distinguishable from the present case. In that case, the habeas court was confronted with a petitioner whose statements concerning his desire to “withdraw” were unclear as to whether he wished to discharge counsel or whether he wished to withdraw his petition completely. See id., 837-40. The habeas court, in trying to interpret these statements, originally treated them as a request to discharge counsel and continue the case. Id., 838. After denying the motion to discharge, “[t]he court stated [that], ‘[w]e shall go forward with the case,’ and asked the petitioner‘s counsel if he wanted to call witnesses.” Id. It was only after this instruction to call witnesses that the petitioner stated that he did not want to proceed and that the habeas court finally addressed the merits
In the present case, the court first addressed the petitioner‘s request concerning his request to withdraw his petition immediately following its ruling on his oral motion to discharge his habeas counsel and for a continuance. Unlike the habeas court in Melendez, the colloquy between the court and the petitioner, as well as the court‘s statements that it would allow a withdrawal of the petition only with prejudice, demonstrates that the court was not confused as to what the petitioner was requesting.14 Although the court had indicated that the case would proceed, no witnesses had been called when the court articulated its unequivocal position that any withdrawal would be permitted only with prejudice.
Viewing in context the later statements by the court and habeas counsel upon which the commissioner relies, we are persuaded that, despite the court‘s statements after the petitioner took the witness stand that “that‘s the ruling of the court,” the court already had made its determination that a hearing on the merits had commenced, and, therefore a withdrawal of the petition would be permitted only with prejudice. Subsequent to the petitioner being called as a witness and placed under oath, habeas counsel formally objected to a withdrawal with prejudice of the petition, which the court noted. Soon thereafter, during the discussion between the court and the petitioner, habeas counsel again interjected to state more clearly the grounds for the objection, and the trial court clarified the bases for its ruling.15 Therefore, the later statements of the court and habeas counsel must be understood to have been related to habeas counsel‘s objection preserving the issue for review rather than being a final ruling by the court on that point. Accordingly, we conclude that the court erred in determining that a hearing on the merits, for purposes of
The judgment is reversed and the case is remanded with direction to grant the petitioner‘s request to withdraw his habeas petition without prejudice.
In this opinion the other judges concurred.
Notes
“The Court: If you wanted to withdraw, you‘d withdraw it, but it‘s going to be withdrawn with prejudice, which means that you will not be able to raise these claims again in the future. You‘ll have lost that opportunity. So, do you wish to go forward today, or do you wish to do something else? It‘s up to you.
“The Petitioner: Put me up against the wall. I mean, what can I do? I mean, I wanted — you know, without prejudice —
“The Court: Well, it‘s not going to be without prejudice. Do you want to go forward, then?”
“[The Petitioner‘s Counsel]: And, Your Honor, for the record — [I] should have done a better job of stating the grounds to the objection to the court‘s entering a withdraw[al] with prejudice. In a civil trial, jeopardy does not attach until the first witness is sworn in. I believe that it was [the petitioner‘s] intention to withdraw this case before he was sworn in to testify.
“The Court: Okay. You‘ve made that record, but everyone is prepared to go forward. This matter has been continued from a prior occasion. I cannot allow a party to use a withdrawal simply to manipulate the scheduling and the fact that he‘s not in agreement with your approach to the case, and that‘s the ruling of the court.”