STATE OF CONNECTICUT v. MARK REID
(SC 17554)
Supreme Court of Connecticut
Argued January 6—officially released April 18, 2006
277 Conn. 764
Sullivan, C. J., and Norcott, Katz, Palmer and Vertefeuille, Js.*
* The listings of justices reflects their seniority status on this court as of the date of oral argument.
There can be no doubt that the impropriety in the trial court‘s jury instruction was of constitutional magnitude. The state has not briefed the issue of whether the trial court‘s failure to instruct the jury to consider self-defense from the perspective of the principal was harmless beyond a reasonable doubt. Consequently, the state has failed to demonstrate the harmlessness of the trial court‘s error. Moreover, it is at least reasonably possible that the trial court‘s charge misled the jury by precluding it from finding that the defendant was charged with accessorial liability for a noncriminal act.26
The judgment is reversed and the case is remanded for a new trial.
In this opinion the other justices concurred.
Robert J. Gallo, with whom, on the brief, were Karen A. Goodrow, public defender, Charles D. Ray and Salvatore N. Fornaciari, for the appellant (defendant).
Timothy J. Sugrue, senior assistant state‘s attorney, with whom, on the brief, were James E. Thomas, state‘s
Opinion
KATZ, J. The defendant, Mark Reid, appeals from the judgment of conviction of assault in the second degree, challenging the decision of the trial court denying his motion to withdraw his guilty plea. The principal issue in this appeal is whether, at the time he entered his plea, the defendant adequately was apprised of the nature of the criminal charges against him in conformity with the federal constitutional requirement that a guilty plea, to be valid, must be made knowingly and voluntarily. We answer the question in the affirmative, and accordingly, we affirm the judgment of conviction.
The record reveals the following facts and procedural history. In June, 1996, the state charged the defendant in a short form information with one count of assault in the first degree in violation of
During the hearing at which the defendant entered his guilty plea, defense counsel began by representing to the trial court, Cofield, J., that he had “explained to [the defendant] the offer that the court extended. [He has] indicated to me that he is going to be accepting the offer . . . .” The state then requested that the defendant enter his plea to “a substituted charge of assault in the second degree, a violation of [
The assistant state‘s attorney thereafter recited to the court the following facts underlying the assault charge. The victim, Roosevelt Joyner, reported to the police that the defendant had approached him, confronted him verbally, and then hit him several times with a metal baseball bat on his left hand and forearm, on the left side of his head and on his left leg. As a result of this attack, the victim suffered several injuries including a broken leg. An eyewitness corroborated the
The defendant also responded affirmatively to the trial court‘s questions as to whether he had had enough time to discuss the plea with defense counsel and whether he was satisfied with the advice given to him. He also indicated that he did not have any further questions for defense counsel concerning the law or the facts applying to his case. Additionally, the defendant affirmed that defense counsel “went over the law with [him], as it relates to assault in the second degree . . . .” The defendant then affirmed that he had waived a presentence investigation as well as his rights to a trial, to confront witnesses and to avoid self-incrimination. In response to a query from the trial court, defense counsel stated that he had informed the defendant that credit likely would not be given for the time he had served on charges pending in another matter.5
The defendant also affirmed that he was entering a plea of guilty “because [he was] guilty and for no other reason.” Finally, he confirmed his understanding that he would not be able to “take back” the plea once it had been accepted by the trial court and that, as instructed by the court, the “maximum penalty on the charge of assault in the second degree is five years . . . .” Pursuant to the plea agreement, the trial court then imposed a sentence of one year incarceration.6
In November, 1997, a jury found the defendant guilty of sexual assault in the first degree and kidnapping in the first degree. See footnote 5 of this opinion. In 1999, deportation proceedings were commenced against the defendant by the federal government citing the defendant‘s 1997 sexual assault conviction as the basis for deportation.7 In May, 2003, the trial court granted the
In February, 2004, pursuant to Practice Book §§ 39-26, 39-27 and 39-19, the defendant filed in the Superior Court a motion to withdraw his plea of guilty to assault in the second degree, claiming violations of his right to due process under the fifth and fourteenth amendments to the United States constitution and under article first, § 8, of the Connecticut constitution.8 The defendant claimed that his plea was improper because the trial court never had advised him of the elements of the crime for which he was convicted, nor did the record of the proceedings demonstrate that the defendant‘s attorney had advised him of the necessary elements. The defendant also claimed that his attorney‘s representation may have been ineffective and that he was denied his right to allocution.
The trial court, Swords, J., noted that the defendant‘s motion to withdraw the plea was untimely, but concluded that, because the defendant had asserted constitutional claims that could be reviewed, it would consider the motion. The court entered an order denying the motion, however, reasoning that the defendant
On appeal to this court, the defendant contends that the trial court‘s judgment was improper because: (1) the canvass of the defendant was ambiguous as to whether he was pleading to second or third degree assault and as to which particular subsections of the relevant offense applied; (2) there is no support in the record to conclude that the necessary information had been provided by defense counsel prior to the plea; and (3) the failure of defense counsel to correct these deficiencies, combined with the multiple continuances of the proceedings, raises serious questions as to the adequacy of representation received by the defendant and therefore about whether his plea was knowing and voluntary.10 The state contends that the defendant‘s appeal must be dismissed because the trial court lacked jurisdiction in the first instance to consider the plaintiff‘s motion to withdraw his plea. Alternatively, the state contends that, should we examine the plea canvass, we should deny the appeal nonetheless because the defendant has not demonstrated that his plea was
I
The first issue that we must address is whether this court has jurisdiction to consider the merits of the defendant‘s challenge to his guilty plea within the confines of our authority to review the trial court‘s judgment denying his motion to withdraw the plea. If we conclude that the motion to withdraw was an inappropriate vehicle for the defendant‘s challenge and, therefore, that the trial court lacked jurisdiction to entertain the motion, the question arises whether any other avenue of appellate review is appropriate in the particular circumstances of this case.
The matter presently before us arises out of the defendant‘s motion to withdraw his guilty plea pursuant to Practice Book §§ 39-2611 and 39-27.12 The state contends
It is axiomatic that jurisdiction “involves the power in a court to hear and determine the cause of action presented to it and its source is the constitutional and statutory provisions by which it is created.” Connecticut State Employees Assn., Inc. v. Connecticut Personnel Policy Board, 165 Conn. 448, 456, 334 A.2d 909 (1973). ”
Turning to the matter presently before this court, we note that, at the time he filed the motion to withdraw his plea, the defendant not only had begun serving his sentence, he had completed it and had been released. The defendant does not claim to act under a legislative
Under well established law, it is clear that the trial court‘s lack of subject matter jurisdiction to hear the motion to withdraw rendered void its denial of that motion. See Commissioner of Transportation v. Rocky Mountain, LLC, 277 Conn. 696, 725, 894 A.2d 259 (2006); see also 1 A. Freeman, Judgments (5th Ed. 1925) § 322, pp. 643-44 (“A judgment void upon its face and requiring only an inspection of the record to demonstrate its invalidity is a mere nullity, in legal effect no judgment at all, conferring no right and affording no justification. . . . It neither binds nor bars anyone. All acts performed under it and all claims flowing out of it are void.“).
We are convinced that, under the unique circumstances of this case, it is appropriate for us to exercise our supervisory powers pursuant to Practice Book § 60-2 and treat the defendant‘s appeal as though he had filed a request for permission to file an untimely appeal from his judgment of conviction.16 See, e.g., State v. Ayala, 222 Conn. 331, 342, 610 A.2d 1162 (1992). We recognize that “[c]onstitutional, statutory and procedural limitations are generally adequate to protect the rights of the defendant and the integrity of the judicial system. Our supervisory powers are invoked only in the rare circumstance where these traditional protections are inadequate to ensure the fair and just administration of the courts.” State v. Hines, 243 Conn. 796, 815, 709 A.2d 522 (1998).
These are such rare circumstances. The defendant‘s conviction resulting from his April, 1997 guilty plea, which is claimed to be constitutionally unsound, was substituted by the Department of Homeland Security as the basis for his deportation in June, 2003, only after a November, 1997 conviction for another offense had been vacated in May, 2003, as a result of DNA testing. See footnotes 5 and 7 of this opinion. Since the November, 1997 conviction was vacated and the April, 1997
We, therefore, treat the defendant‘s claim as if a motion to file an untimely appeal had been made and granted, and an appeal from the April, 1997 judgment of conviction of assault in the second degree was filed pursuant to
II
We now turn, therefore, to the defendant‘s claim that, at the time he entered his guilty plea, he was not apprised adequately of the nature of the criminal charges against him in conformity with the federal constitutional requirement that a guilty plea, to be valid, must be made knowingly and voluntarily. Specifically, the defendant claims that (1) he was not advised of the elements of the offense to which he was pleading guilty, (2) under the circumstances of his plea, it is improper to assume that his plea was knowing, and (3) in light of
We begin by reviewing the law governing guilty pleas. “[A] voluntary and intelligent guilty plea operates as a waiver of all nonjurisdictional defects.” State v. Johnson, 253 Conn. 1, 42, 751 A.2d 298 (2000). Moreover, “[i]t is axiomatic that unless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable. . . . A plea of guilty is, in effect, a conviction, the equivalent of a guilty verdict by a jury. . . . In choosing to plead guilty, the defendant is waiving several constitutional rights, including his privilege against self-incrimination, his right to trial by jury, and his right to confront his accusers. . . . The . . . constitutional essentials for the acceptance of a plea of guilty are included in our rules and are reflected in Practice Book §§ [39-19 and 39-20]. . . . The failure to inform a defendant as to all possible indirect and collateral consequences does not render a plea unintelligent or involuntary in a constitutional sense.” (Internal quotation marks omitted.) State v. Greene, 274 Conn. 134, 143-44, 874 A.2d 750 (2005).
In State v. Commins, 276 Conn. 503, 515, 886 A.2d 824 (2005), we recognized that “this court previously has reviewed unpreserved claims [challenging the constitutionality of a guilty plea]. See State v. Childree, [189 Conn. 114, 119, 454 A.2d 1274 (1983)] (reviewing
In the matter presently before this court, the defendant has sought to prevail under Golding and we thus consider whether: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair [conviction]; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 239-40. “The first two [prongs of Golding] involve a determination of whether the claim is reviewable; the second two involve a determination of whether the defendant may prevail.” (Internal quotation marks omitted.) State v. Samuels, 273 Conn. 541, 557, 871 A.2d 1005 (2005). We conclude that the record of the defendant‘s guilty plea is adequate to allow us to review his claim of error and that his claim is of constitutional magnitude, alleging a violation of due process. The defendant has not, however, demonstrated that the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair conviction.
We first address the defendant‘s claim that he was not advised of the elements of the offense to which he was pleading guilty. The defendant essentially contends that, when the state‘s attorney requested that he enter his plea to a “substituted charge of assault in the second degree” followed by a citation to
We acknowledge that, “[i]t is well established that a plea of guilty cannot be voluntary in the sense that it constitutes an intelligent admission that the accused committed the offense unless the accused has received real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.” (Internal quotation marks omitted.) Marshall v. Lonberger, 459 U.S. 422, 436, 103 S. Ct. 843, 74 L. Ed. 2d 646 (1983). In determining whether the defendant had real notice of the charge against him, however, “[a] court must consider the ‘totality of the circumstances surrounding’ the entry of a plea. See Brady v. United States, 397 U.S. 742, 757, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970).” Torres v. McGrath, 407 F. Supp. 551, 558 (S.D.N.Y. 2006).
Turning to the case presently before the court, we conclude that the totality of the circumstances surrounding the defendant‘s plea clearly indicates that the defendant understood that he was charged with, and pleaded guilty to, assault in the second degree. The short form substitute information to which he pleaded charged him with “assault second degree” in violation of
Moreover, “[o]ur courts have stopped short of adopting a per se rule that notice of the true nature of the charge always requires the court to give a description of every element of the offense charged.” (Internal quotation marks omitted.) State v. Silva, 65 Conn. App. 234, 245, 783 A.2d 7, cert. denied, 258 Conn. 929, 783 A.2d 1031 (2001). Rather, we have held that, “[u]nder Henderson v. Morgan, 426 U.S. 637, 647, 96 S. Ct. 2253, 49 L. Ed. 2d 108 (1976), even without an express statement by the court of the elements of the crimes charged, it is appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit. See also Marshall v. Lonberger, [supra, 459 U.S. 436-37] (same); Oppel v. Meachum, 851 F.2d 34, 38 (2d Cir.) (under Henderson v. Morgan, [supra, 647] it is normally presumed that the defendant is informed by his attorney of the charges against him
and the elements of those charges), cert. denied, 488 U.S. 911, 109 S. Ct. 266, 102 L. Ed. 2d 254 (1988). Thus, unless a record contains some positive suggestion that the defendant‘s attorney had not informed the defendant of the elements of the crimes to which he was pleading guilty, the normal presumption applies.” (Internal quotation marks omitted.) State v. Lopez, 269 Conn. 799, 802, 850 A.2d 143 (2004); accord Bradshaw v. Stumpf, 545 U.S. 175, 125 S. Ct. 2398, 2405-2406, 162 L. Ed. 2d 143 (2005) (“[W]e have never held that the judge must himself explain the elements of each charge to the defendant on the record. Rather, the constitutional prerequisites of a valid plea may be satisfied where the record accurately reflects that the nature of the charge and the elements of the crime were explained to the defendant by his own, competent counsel. . . . Where a defendant is represented by competent counsel, the court usually may rely on that counsel‘s assurance that the defendant has been properly informed of the nature and elements of the charge to which he is pleading guilty.” [Citation omitted.]).The defendant has not pointed to anything in the record containing a positive suggestion that his attorney failed to inform him of the elements of the crime to which he was pleading. In fact, the record shows that the defendant responded affirmatively to the trial court‘s inquiries as to whether defense counsel “went over the law with [him] as it relates to assault in the [second] degree” and whether the defendant had had enough time to discuss his plea with counsel. The defendant also affirmed, in response to the court‘s inquiry, that he had no questions for defense counsel “either about the law as it applies to [his] case, or the facts of [his] case.” A court “may properly rely on . . . the responses of the [defendant] at the time [he] responded to the trial court‘s plea canvass . . . .” (Internal quotation marks omitted.) State v. Casado, 42 Conn. App. 371, 377, 680 A.2d 981, cert. denied, 239 Conn. 920, 682 A.2d 1006 (1996), citing State v. Williams, 203 Conn. 159, 170, 523 A.2d 1284 (1987). Accordingly, we conclude that, based on the record in the present case, it is appropriate to presume that defense counsel explained the nature of the offense in sufficient detail to give the defendant notice of what he was being asked to admit.
Despite the absence of a positive suggestion in the record that defense counsel had failed to inform him of the elements of the crime, the defendant claims that this court should not presume his counsel adequately explained the offense to which he was pleading. The defendant contends that defense counsel provided ineffective assistance and that “a claim of ineffective assistance of counsel . . . is a factor to be taken into consideration in determining whether a guilty plea was voluntary and intelligent.” (Internal quotation marks omitted.) State v. Childree, supra, 189 Conn. 124. Specifically, the defendant alleges that the acquiescence to multiple continuances raises questions about defense counsel‘s competence because, absent these continuances, his plea might have been accepted before changes to the federal deportation law became effective and made aliens convicted of an aggravated felony ineligible for discretionary relief from deportation.18
We previously have observed that, “[t]he transcript of the proceedings in the trial court allows us to examine the actions of defense counsel but not the underlying reasons for his actions. . . . Our role . . . is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. Without a hearing in which the reasons for counsel‘s decision may be elicited, any decision of ours . . . would be entirely speculative.” (Citations omitted; internal quotation marks omitted.) State v. Greene, supra, 274 Conn. 152.
In the present case, the record does not reveal: (1) the circumstances surrounding the continuances that caused the defendant‘s plea hearing to be held after the effective date of the deportation policy change; see footnote 2 of this opinion; (2) whether a plea agreement was available before the changes to federal deportation became effective; (3) the extent of defense counsel‘s knowledge concerning the changes to the deportation law; (4) the advice that defense counsel gave to the defendant, if any, concerning the collateral effects of pleading guilty to certain charges; and (5) the reasons for defense counsel‘s decisions and actions. The record also does not reflect the nature and extent of explanations provided by defense counsel to the defendant regarding the charges against him; rather, it reflects only that such discussion occurred. These questions of fact cannot be resolved without an evidentiary hearing. See, e.g., State v. Hinckley, 198 Conn. 77, 90, 502 A.2d 388 (1985) (ineffective assistance of counsel claim pred-
Finally, the defendant contends that he was not informed of the particular subsection of assault in the second degree to which he was pleading. The defendant claims that this is significant because, under a 2004 ruling by the Court of Appeals for the Second Circuit, not all provisions of Connecticut‘s statute concerning assault in the second degree would be considered deportable offenses. See Chrzanoski v. Ashcroft, 327 F.3d 188, 197 (2d Cir. 2003) (noting that intentionally causing stupor, unconsciousness or other physical impairment or injury to another person by administering, without consent, a drug, substance or preparation capable of producing same in violation of
The defendant‘s claim fails for two reasons. First, as we previously have concluded, the defendant adequately was apprised of the nature of the criminal charges against him in conformity with the federal constitutional requirement that a guilty plea, to be valid, must be knowing and voluntary. Whether the federal definition of a crime of violence under
To the extent that the defendant contends that his plea decision might have been different had he known that the subsections of the statute could be treated differently in deportation decisions, “the Supreme Court has held that imperfect knowledge of future developments in the law has no bearing on the question of the validity of a waiver. For instance, in Brady v. United States, [supra, 397 U.S. 742], the [c]ourt observed that [a] defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the [s]tate‘s case or the likely penalties attached to alternative courses of action. More particularly, absent misrepresentation or other impermissible conduct by state agents, a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise. . . .
Therefore, under the circumstances of the present case, we conclude that the defendant‘s plea was voluntary and knowing. Accordingly, we affirm the trial court‘s judgment convicting the defendant of assault in the second degree.
The order denying the defendant‘s motion to withdraw his guilty plea is reversed and the case is remanded with direction to dismiss that motion for lack of subject matter jurisdiction; the judgment of conviction is affirmed.
In this opinion SULLIVAN, C. J., and PALMER and VERTEFEUILLE, Js., concurred.
NORCOTT, J., concurring. Although I agree with the result reached by the majority, I write separately because I arrive at the same conclusion by a very different route. The majority, in my view, does not adequately consider the significant question of whether we have jurisdiction over a case in which the defendant, Mark Reid, who no longer is in the custody of the state, allowed his right of appeal to lapse nearly seven years ago. Although I ultimately agree with the majority‘s conclusion that we have jurisdiction to consider the defendant‘s direct appeal, I disagree with its decision
I
I begin with the question of whether we have subject matter jurisdiction over a direct appeal filed nearly seven years late by a defendant who no longer is in the custody of the state. Although the parties did not raise this issue, I note we have an obligation to address questions of our subject matter jurisdiction sua sponte. See Miller v. Egan, 265 Conn. 301, 323-24, 828 A.2d 549 (2003) (“we acknowledge that, because the doctrine of sovereign immunity implicates subject matter jurisdiction, we could and should have raised the issue sua sponte“). “It is axiomatic that, except insofar as the constitution bestows upon this court jurisdiction to hear certain cases . . . the subject matter jurisdiction of the Appellate Court and of this court is governed by statute.” (Internal quotation marks omitted.) Banks v. Thomas, 241 Conn. 569, 582, 698 A.2d 268 (1997); see also State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983) (“The right of appeal is purely statutory. It is accorded only if the conditions fixed by statute and the rules of court for taking and prosecuting the appeal are met.“). The applicable statutes;
The legislature has left the duty of crafting specific rules governing appellate procedure to the judiciary. See
Nevertheless, it is well established that, as enumerated in
Indeed, we have, on other occasions, determined that even certain statutory time limits on the filing of an appeal did not bar this court from exercising jurisdiction. See Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 762-64, 628 A.2d 1303 (1993). In Ambroise, we concluded not only that time limitations contained in the rules of practice were not jurisdictional, but also that the proper inquiry when faced with a statutory limitation on the right of appeal becomes “a question of statutory construction: did the legislature, in imposing the time limitation, intend to impose a subject matter jurisdictional requirement on the right to appeal,” which we approach through our normal methods of statutory interpretation. Id., 764.
Because of our historically generous construction of provisions limiting the time within which a party may appeal, I agree with the majority that, despite the extraordinary delay between the defendant‘s sentenc-
II
Although I agree with the majority‘s conclusion that we could have jurisdiction, I disagree with its decision
“As an appellate court, we possess an inherent supervisory authority over the administration of justice.” State v. Patterson, 230 Conn. 385, 397, 645 A.2d 535 (1994); see also
In State v. Stead, 186 Conn. 222, 224, 440 A.2d 299 (1982), the defendant was found guilty of robbery in the first degree and larceny in the first degree following
The defendant appealed from the judgment of the trial court to this court, which, pursuant to its supervisory authority, allowed the defendant to file a late appeal. Id., 229. In that case, however, the defendant‘s appeal was filed a mere ten days late, and we noted that, “[t]he defendant‘s trial counsel had expressed his client‘s intention to appeal, and his own intention to serve as appellate counsel, and had timely filed for a waiver of costs and fees in November, 1980. It is clear that the defendant never waived his right of appeal and has become mired in a procedural bog largely created by his own counsel.” (Emphasis added.) Id., 228.
Subsequently, in Banks v. Thomas, supra, 241 Conn. 572, we reviewed the merits of a criminal defendant‘s writ of error that was filed fifteen days after expiration of the then existing statutory time period.9 In Banks,
Finally, in Ramos v. Commissioner of Correction, 248 Conn. 52, 55-56, 727 A.2d 213 (1999), this court addressed a case in which a prisoner had appealed from the habeas court‘s denial of a petition for writ of habeas corpus filed six months late due to failure of the chief public defender‘s office to appoint him appellate counsel. The Appellate Court, in response to the commissioner‘s objection to the appeal as untimely, ordered a hearing at which the petitioner was “to appear and give reasons, if any, why the appeal should not be dismissed as untimely . . . .” Id., 56. Due to another oversight on the part of the chief public defender‘s office, counsel for the petitioner did not appear at the hearing, and the Appellate Court dismissed the defendant‘s
Each of the previously mentioned cases differs from the present matter in three significant ways. First, appellate review in those cases was requested at most six months late, with the defendants in both Banks and Stead filing late by only a matter days. See Ramos v. Commissioner of Correction, supra, 248 Conn. 56; Banks v. Thomas, supra, 241 Conn. 622; State v. Stead, supra, 186 Conn. 223-25. Second, in each case, the defendant had clearly and unequivocally expressed his desire to appeal, but could not effectively prosecute the appeal because of various logistical or procedural shortcomings.12 Finally, and perhaps most importantly, the defendants in each of the previously mentioned cases were either currently imprisoned, or faced imprisonment, in the absence of a favorable resolution of their appeals.
Conversely, in the present case, the defendant‘s motion to withdraw his guilty plea was filed nearly
Finally, unlike the defendants in the previously cited cases, the defendant herein faces no present incarceration or threat of incarceration. Although he is, by virtue of the actions of another sovereign prohibited from reentering the United States, the defendant is not in any way imposed upon by the state of Connecticut and is, in fact, free to travel wherever he desires, except for the United States.14
Accordingly, because I conclude that the trial court was without jurisdiction to consider the merits of the defendant‘s motion to withdraw his guilty plea and because I believe that, under the present facts, this court is ill-advised to use its supervisory authority to resurrect the defendant‘s seven year old claim as a direct appeal, I would affirm the judgment of the trial court. I, therefore, concur in the result.
Notes
We note that the June, 1999 “Notice to Appear” in the deportation proceedings incorrectly refers to the date of the defendant‘s sexual assault conviction as February 20, 1998. That inconsistency is not relevant to this appeal. See Isaacson Structural Steel Co. v. Armco Steel, 640 P.2d 812, 815 n.8 (Alaska 1982) (failure to file timely notice of appeal does not create jurisdictional defect); In re Richard S., 54 Cal. 3d 857, 863, 819 P.2d 843 (1991) (failure to comply with rules of practice or statutory requirements for appeal did not necessarily divest court of jurisdiction, rather “the question whether failure to comply with the rule deprives the tribunal of jurisdiction is one of legislative intent“); State v. Knight, 80 Haw. 318, 323, 909 P.2d 1133 (1996) (“As a general rule, compliance with the requirement of timely filing of a notice of appeal is jurisdictional, and we must dismiss an appeal on our motion if we lack jurisdiction. . . . However, we have permitted belated appeals under [certain] circumstances, namely, when . . . defense counsel has inexcusably or ineffectively failed to pursue a defendant‘s appeal from a criminal conviction in the first instance.” [Citations omitted; internal quotation marks omitted.]); Johnson v. Smith, 885 S.W.2d 944, 949-50 (Ky. 1994) (timely filing of notice of appeal is not jurisdictional but is matter of procedure); Commonwealth v. Pappas, 432 Mass. 1025, 1026 n.1, 735 N.E.2d 1240 (2000) (late filing of notice of appeal does not divest appellate court of jurisdiction); Schaefco, Inc. v. Columbia River Gorge Commission, 121 Wash. 2d 366, 370-71, 849 P.2d 1225 (1993) (late filing of appeal does not bar review if equity demands it).