Villafane v. Commissioner of Correction

Citations

• 216 Conn. App. 839

Syllabus

The petitioner, who had been convicted, on a plea of guilty, to burglary in the first degree and criminal violation of a protective order, sought a writ of habeas corpus. The habeas court, on its own motion and without providing the petitioner with prior notice or an opportunity to be heard, dismissed the petitioner's amended petition pursuant to the rule of practice (§ 23-29), concluding that the petitioner's guilty plea waived any alleged constitutional defects not involving the court's jurisdiction and that the complaint attacked only issues that were outside the juris- diction of the habeas court. Thereafter, the habeas court denied the petition for certification to appeal, and the petitioner appealed to this court. Held: 1. The trial court abused its discretion in denying the petition for certification to appeal: in light of our Supreme Court's recent decisions in Brown v. Commissioner of Correction (345 Conn. 1), and Boria v. Commissioner of Correction (345 Conn. 39), the issue raised in the petitioner's petition for certification to appeal concerning the right to notice and a right to be heard prior to a dismissal under Practice Book § 23-29 was debatable among jurists of reason, a court could resolve the issue in a different manner, and the issue deserved encouragement to proceed further. 2. This court concluded that, although the habeas court was not required to hold a full hearing, the petitioner was entitled to notice of that court's intention to dismiss and an opportunity to file a brief or a written response concerning the proposed basis for dismissal, which it did not do; accordingly, on remand, should the habeas court consider dismissal of the amended petition, or any subsequent amended petition properly filed by the petitioner, on its own motion pursuant to Practice Book § 23-29, the court must comply with the procedure set forth in Brown and Boria by providing the petitioner with prior notice and an opportunity to submit a brief or written response