240033 v. Warden (2013)

MEMORANDUM OF DECISION

The petitioner initiated this matter by way of a petition for a writ of habeas corpus, his fourth, filed on April 19, 2011.   After the assignment of counsel, the petition was amended on July 25, 2013.   The respondent filed a motion to dismiss both counts of the amended petition.   The petitioner thereafter amended the petition a second time and also objected to the motion to dismiss.   The respondent then filed a return which denies the petitioner's claims and that he is entitled to relief, as well as reiterates the grounds for dismissal already asserted in the motion to dismiss as defenses to the claims.   The petitioner's reply to the return denies the defenses raised therein.

The parties appeared before this court on October 16, 2013, for a hearing on the motion to dismiss and the objection thereto.   For the reasons stated more fully below, the motion to dismiss is granted as to both counts.

DISCUSSION

Practice Book § 23–29 in relevant part states that:  “The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that ․ (2) the petition, or a count thereof, fails to state a claim upon which habeas corpus relief can be granted;  (3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or proffer new evidence not reasonably available at the time of the prior petition;  ․ (5) any other legally sufficient ground for dismissal of the petition exists.”

“․ [A] motion to dismiss may be decided on the pleadings[.]”  (Emphasis in original.)  Zollo v. Commissioner of Correction, 133 Conn.App. 266, 35 A.3d 337, cert. granted, 304 Conn. 910, 39 A.3d 1120 (2012),¹ citing and quoting Young v. Commissioner of Correction, 104 Conn.App. 188, 193, 932 A.2d 467 (2007), cert. denied, 285 Conn. 907, 942 A.2d 416 (2008).  “In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader ․ The conclusions reached by the [habeas] court in its decision to dismiss the habeas petition are matters of law, subject to plenary review ․ Thus, [w]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct ․ and whether they find support in the facts that appear in the record.”  (Citation omitted;  internal quotation marks omitted.)  Young v. Commissioner of Correction, supra, 104 Conn.App. 193.

“It is well settled that [t]he petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action ․ The principle that a plaintiff may rely only upon what he has alleged is basic ․ It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint ․ While the habeas court has considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violations ․ it does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised.'  (Internal quotation marks omitted.)  Arriaga v. Commissioner of Correction, 120 Conn.App. 258, 262–63, 990 A.2d 910 (2010).”   Abdullah v. Commissioner of Correction, 123 Conn.App. 197, 201–02, 1 A.3d 1102, cert. denied, 298 Conn. 930, 5 A.3d 488 (2010).

Because this is the petitioner's fourth habeas corpus petition, the previous procedural history is lengthy but necessarily must be restated.   The Appellate Court's decision on the petitioner's direct appeal recites the following facts:  “On August 11, 1998, the victim drove her Plymouth Voyager minivan to the Shaw's Supermarket in Newington to purchase groceries.   The victim was alone and spent approximately one-half hour inside the store.   The victim then returned to her vehicle, loaded her groceries and got in the driver's seat.   The [petitioner] was hiding in the backseat of the vehicle ² and, upon the victim's entry into the vehicle, placed a knife to her side.   The knife's blade was five to six inches in length and was beveled.

“The [petitioner] told the victim to ‘do as I say and you will not be hurt.’   The [petitioner] ordered the victim to drive to Glastonbury and gave her specific directions to follow.   The [petitioner] directed the victim to a park on a dirt road in East Hartford.   The road was blocked by a gate and the victim stopped the vehicle.   The [petitioner] ordered the victim to accompany him into a wooded area.   The victim refused and told the [petitioner] that she did ‘not feel like getting harmed or raped by [the petitioner].’   The [petitioner] stated that he did not intend to harm the victim, but he did not want the victim to see which way he would be going in the wooded area to aid in his escape.   The victim suggested that she would look away while the [petitioner] fled into the wooded area.   The [petitioner] ‘seemed satisfied with that,’ and the victim did not turn around until she was certain that the [petitioner] was gone.

“The victim then drove to the Newington police department and reported the incident.   The victim described the man who perpetrated the crime as having shoulder length, dirty blond hair and wearing a baseball cap, blue jeans and a shirt.   A detective prepared a composite sketch drawing based on the victim's description.   Thereafter, flyers were printed based on the composite sketch drawing.   The flyers were shown to members of the Newington police department, including Officer Jeannine M. Candels and her partner, Officer Timothy A. Walsh, who both recognized the sketch as depicting the [petitioner].   They then went to a motel in Newington, where they believed the [petitioner] was currently living.

“The officers interviewed the [petitioner] and he gave them a full statement in which he confessed.   He signed the statement, and his version of the events matched that given by the victim.   The [petitioner] also gave the officers a baseball cap that he had been wearing during the event, and the officers took a picture of the [petitioner] wearing the hat.   The next day, the victim returned to the Newington police department and was shown a photographic lineup consisting of eight photographs, including the [petitioner].   The victim recognized the [petitioner] and pointed him out as the man that she had described three days earlier.”  (Footnote renumbered.)  State v. Pierce, 69 Conn.App. 516, 519–20, 794 A.2d 1123 (2002).

The petitioner was convicted by the jury of kidnapping in the second degree in violation of General Statutes § 53a–94 and burglary in the first degree in violation of General Statutes § 53a–101(a)(1).   He was sentenced to a total effective term of thirty years imprisonment, execution suspended after twenty-five years and five years probation.   Additionally, the petitioner was ordered to register as a sexual offender pursuant to General Statutes § 54–254(a).

The petitioner's first claim on direct appeal was that the trial court abused its discretion when it ordered him to register as a sex offender.  Id., at pg. 520.   After a lengthy and thorough analysis, the Appellate Court affirmed the “․ judgment of conviction ․ and ․ reverse[d] only as to the requirement that the [petitioner] register as a sexual offender and the case is remanded for a hearing for the sole and specific purpose of determining whether the [petitioner] committed the offense of kidnapping in the second degree in violation of § 54–94 ‘for a sexual purpose’ as provided in § 54–254(a).”   Id., at pg. 538.

The Supreme Court granted the state's petition for certification to appeal from the Appellate Court's decision.  State v. Pierce, 261 Conn. 914, 806 A.2d 1056 (2002).   The Supreme Court ultimately concluded that the Appellate Court erred when it applied the plain error doctrine to the petitioner's claim on appeal.  State v. Pierce, 269 Conn. 442, 453, 849 A.2d 375 (2004).   The Supreme Court the noted that “․ the trial court acted pursuant to a presumptively valid statute in accordance with its express provisions.   In other words, by finding that the [petitioner] had committed a felony for a sexual purpose, the trial court complied with § 54–254(a) as written.   Accordingly, [the Supreme Court was] not persuaded ‘that the [petitioner] ha[d] illustrated the existence of a manifest injustice, such that [the Supreme Court] would apply plain error review.’  State v. Lemoine, 256 Conn. 193, 208, 770 A.2d 491 (2001).”  State v. Pierce, supra, 269 Conn. 454.

The petitioner initiated his first habeas corpus petition, assigned docket number CV02–0003666 in the judicial district of Tolland, in which he raised a claim of ineffective assistance of trial defense counsel, Public Defender Claude Chong.³  After a trial on the merits, the first habeas corpus petition was denied by the court, White, J., on September 18, 2003.   Judge White concluded that the petitioner had failed to prove ineffective assistance of counsel.   The petitioner's right to sentence review, however, was restored by the first habeas court.   The petitioner did not appeal from the judgment in the first habeas corpus matter.

The petitioner thereafter filed his second habeas corpus petition in October 2003, assigned docket number CV03–0004220 in the judicial district of Tolland.   The second habeas corpus petition, as amended on November 16, 2004, raised claims of prosecutorial misconduct, ineffective assistance of trial counsel, ineffective assistance of appellate counsel, and ineffective assistance of counsel in the first habeas.   The court, Fuger, J., denied the claims in the second habeas petition.   The petitioner appealed from the denial of the petition for certification to appeal and the Appellate Court dismissed the appeal after concluding that the second habeas court did not abuse its discretion when it denied said petition.  Pierce v. Commissioner of Correction, 100 Conn.App. 1, 916 A.2d 864, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007).

While appealing the second habeas court's decision, the petitioner initiated his third petition for a writ of habeas corpus, assigned docket number CV05–4000609, in the judicial district of Tolland.   The amended petition alleged that the petitioner's rights to due process and to a jury trial were violated, ineffective assistance of trial defense counsel, ineffective assistance of appellate counsel, ineffective assistance of first habeas counsel, and ineffective assistance of second habeas counsel.   The court, Nazzaro, J., concluded that the petitioner was procedurally defaulted as to both the due process claim and the claim that his right to a jury trial was violated.   Judge Nazzaro also concluded that the petitioner had failed to prove all claims of ineffective assistance of counsel.   The petitioner appealed and ultimately the Appellate Court dismissed the appeal in Pierce v. Commissioner of Correction, 134 Conn.App. 904, 38 A.3d 1253 (per curiam), cert. denied, 305 Conn. 904 (2012).

In the present matter, the petitioner's fourth habeas corpus petition challenging the same underlying convictions and sentence, the second amended petition filed September 16, 2013, raises two claims:  first, that his sentence was illegally imposed because the 1999 pre-sentence investigation (PSI) report improperly incorporated references to the petitioner's psychiatric and treatment records without his express written consent, thereby violating his right to confidentiality and various statutory and constitutional safeguards;  second, ineffective assistance of trial counsel for failure to raise the first claim and object to the inclusion of the privileged information in the 1999 PSI report.   The petitioner asserts that he was prejudiced by these purported deficiencies because, but for trial counsel's deficient performance, there is a reasonable probability that the confidential medical records would have been excluded from the PSI report, that the petitioner's sentence would have been shorter, and that the petitioner would not have to register as a sex offender.   As relief the petitioner requests, inter alia, that the habeas court vacate his sentence and remand the matter to the trial court for a new sentencing proceeding, vacate the requirement that he register as a sex offender, and release him from custody if the trial court fails to comply with the habeas court's remand and implement such relief.

The respondent's memorandum and attachments in support of the motion to dismiss provide greater details of the preceding procedural history, which includes sentence review proceedings restored as a result of the first habeas corpus petition,⁴ as well as a motion to correct an illegal sentence dismissed by the court, Espinosa, J., in 2009.⁵  The sentence review division's decision indicates that the petitioner directly addressed the panel and brought up the issue of improper inclusion of confidential information obtained through a release executed by the petitioner.   Judge Espinosa's decision on the motion to correct an illegal sentence reflects that the petitioner there claimed his sentence was imposed in an illegal manner because the PSI report included confidential information (i.e., information obtained through the petitioner's waiver for a 1996 PSI report in a prior criminal matter that was used in 1999 when the petitioner did not execute a waiver) that was obtained in violation of the petitioner's privacy rights.   The second amended petition specifies that the petitioner appealed from the dismissal of the motion to correct an illegal sentence.  State v. Pierce, 129 Conn.App. 516, 21 A.3d 877, cert. denied, 302 Conn. 915, 27 A.3d 368 (2011) (affirming dismissal premised on lack of jurisdiction).

The Appellate Court noted the following in its decision addressing the petitioner's claim on appeal from the dismissal of the motion to correct an illegal sentence:  “The essence of the [petitioner's] claim is that the probation department had no authority to include in the 1999 report the privileged information it had received when preparing the 1996 report, for which the [petitioner] had signed written waivers ․ He asserts that the privileged information could not be reused by the probation department in preparing a new report ․ [The petitioner] is not complaining about the actions of the sentencing court.   Clearly, in order to comply with our General Statutes and our rules of practice, the court was required to order and to review the report prepared by the probation department.   See General Statutes (Rev. to 1999) § 54–91a;  Practice Book (1999) §§ 43–3 through 43–9.   Rather, the [petitioner] is complaining about the actions of the probation department in its preparation of the 1999 report.   However, there was no attempt by counsel or by the [petitioner] to alert the court that the [petitioner] had a problem with the report, there was no attempt by counsel or the [petitioner] to request that the alleged improper information be stricken from the report, and there was no denial by the court of any request made by the [petitioner] related to the report ․ Quite to the contrary, when the [petitioner] indicated that he had not had sufficient time to go over the report with counsel, the court called a recess and gave the [petitioner] the time he needed.   After the proceedings were reconvened, neither the [petitioner] nor counsel said a word about any problem with the contents of the 1999 report.”  (Footnotes omitted.)  State v. Pierce, supra, 129 Conn.App. 525–26.

The respondent seeks dismissal of the first claim based on res judicata and, in the alternative, procedural default.⁶  The second claim should be dismissed, according to the respondent, because the present habeas corpus petition is successive and an abuse of the writ.   The court will restate the standards it must apply for res judicata and procedural default because they are intertwined in this matter.

“ ‘[T]he doctrine of res judicata, or claim preclusion, [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action [between the same parties] on the same claim.   A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose ․ The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it.’  (Internal quotation marks omitted.)  Bridges v. Commissioner of Correction, 97 Conn.App. 119, 122, 905 A.2d 103, cert. denied, 280 Conn. 921, 908 A.2d 543 (2006).  ‘Res judicata is a doctrine grounded in public policy, whose primary function is to prevent the relitigation of issues already decided in a court of competent jurisdiction.  Dunham v. Dunham, 221 Conn. 384, 391, 604 A.2d 347 (1992).   The doctrine applies to criminal as well as civil proceedings and to state habeas corpus proceedings, including matters previously litigated in federal court.  McCarthy v. Warden, 213 Conn. 289, 294–98, 567 A.2d 1187 (1989), cert. denied, 496 U.S. 939, 110 S.Ct. 3220, 110 L.Ed.2d 667 (1990).’  ․ Brown v. Commissioner of Correction, 44 Conn.App. 746, 750, 692 A.2d 1285 (1997).”  Davis v. Commissioner of Correction, 109 Conn.App. 92, 96–97, 950 A.2d 587, cert. denied, 289 Conn. 930, 958 A.2d 157 (2008).

“․ However, [u]nique policy considerations must be taken into account in applying the doctrine of res judicata to a constitutional claim raised by a habeas petitioner ․ Specifically, in the habeas context, in the interest of ensuring that no one is deprived of liberty in violation of his or her constitutional rights ․ the application of the doctrine of res judicata ․ [is limited] to claims that actually have been raised and litigated in an earlier proceeding.”  (Internal quotation marks omitted.)  Diaz v. Commissioner of Correction, 125 Conn.App. 57, 64, 6 A.3d 213 (2010), cert. denied, 299 Conn. 926, 11 A.3d 150 (2011);  Kearney v. Commissioner of Correction, 113 Conn.App. 223, 233, 965 A.2d 608 (2009).

“ ‘[A] petitioner may bring successive petitions on the same legal grounds if the petitions seek different relief ․ But where successive petitions are premised on the same legal grounds and seek the same relief, the second petition will not survive a motion to dismiss unless the petition is supported by allegations and facts not reasonably available to the petitioner at the time of the original petition.’  (Citation omitted;  internal quotation marks omitted.)  McClendon v. Commissioner of Correction, 93 Conn.App. 228, 231, 888 A.2d 183, cert. denied, 277 Conn. 917, 895 A.2d 789 (2006).

“ ‘Identical grounds may be proven by different factual allegations, supported by different legal arguments or articulated in different language ․ They raise, however, the same generic legal basis for the same relief.   Put differently, two grounds are not identical if they seek different relief.’   (Citations omitted.)  James L. v. Commissioner of Correction, 245 Conn. 132, 141, 712 A.2d 947 (1998).   Simply put, an applicant must ‘show that his application does, indeed, involve a different legal ground, not merely a verbal reformulation of the same ground.’  “ (Internal quotation marks omitted.)   Myers v. Commissioner of Correction, 111 Conn.App. 405, 410, 959 A.2d 646 (2008);  see also Carter v. Commissioner of Correction, 133 Conn.App. 387, 393–94, 35 A.3d 1088, cert. denied, 307 Conn. 901, 53 A.3d 217 (2012).

“ ‘A party in a habeas appeal procedurally defaults on a claim when he raises issues on appeal that were not properly raised at the criminal trial or the appeal thereafter.   See Jackson v. Commissioner of Correction, 227 Conn. 124, 132, 629 A.2d 413 (1993);  Johnson v. Commissioner of Correction, 218 Conn. 403, 409, 589 A.2d 1214 (1991).  ‘Habeas, as a collateral form of relief, is generally available to litigate constitutional issues only if a more direct route to justice has been foreclosed through no fault of the petitioner.’   Tart v. Commissioner of Correction, 94 Conn.App. 134, 139, 892 A.2d 298, cert. denied, 278 Conn. 904, 896 A.2d 106 (2006).  ‘[T]he existence of cause for a procedural default must ordinarily turn on whether the [petitioner] can show that some objective factor external to the defense impeded counsel's efforts to comply with the [s]tate's procedural rule ․ [For example] a showing that the factual or legal basis for a claim was not reasonably available to counsel ․ or ․ some interference by officials ․ would constitute cause under this standard ․ A court will not reach the merits of the habeas claim when the petitioner fails to make the required showing.’   (Internal quotation marks omitted.)  Anderson v. Commissioner of Correction, 114 Conn.App. 778, 788, 971 A.2d 766, cert. denied, 293 Conn. 915, 979 A.2d 488 (2009).  ‘The appropriate standard for reviewability of [a procedurally defaulted claim] ․ is the cause and prejudice standard.   Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition ․ [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance ․ Once the respondent has raised the defense of procedural default in the return, the burden is on the petitioner to prove cause and prejudice ․ [When] no evidence [of cause and prejudice] has been provided [to the habeas court], [the reviewing] court can independently conclude that the petitioner has failed to meet the cause and prejudice test.’  (Internal quotation marks omitted.)  Id., 787.”  Salters v. Commissioner of Correction, 141 Conn.App. 81, 87–88, 60 A.3d 1004, cert. denied, 308 Conn. 932, 64 A.3d 330 (2013).

The petitioner has previously challenged his sentence by way of a motion to correct an illegal sentence and unsuccessfully appealed therefrom.   A fair reading of the present claim that the petitioner's sentence is illegal because of improperly considered information in the 1999 PSI report shows that the petitioner has raised the same essential claim before in the motion to correct an illegal sentence.   However, Judge Espinosa concluded that the sentencing court lacked jurisdiction over the motion and granted the state's motion to dismiss.   The Appellate Court affirmed the dismissal premised on lack of jurisdiction and never addressed the alternative ground that the petitioner had waived challenging the sentencing court's consideration of the 1999 PSI report and had failed to prove harm.  State v. Pierce, supra, 129 Conn.App. 518, 526.   Although the petitioner attempted to litigate his claim regarding the inclusion in the 1999 PSI report of the treatment information contained in the 1996 PSI report, Judge Espinosa's dismissal on lack of subject matter grounds is not a decision on the merits and the alternative ground that the claim must fail on the merits is dictum.

The respondent also asserts res judicata premised on the petitioner pursuing sentence review.   The decision from the sentence review panel shows that sentence review was sought based on the sentence being too lengthy, not that the sentence was illegal or illegally imposed.   While the panel's decision reflects that the petitioner addressed the panel and that he expressed his concern about the inclusion of confidential information at sentencing, that expression and the panel's decision cannot reasonably be construed as previously raising and fully litigating the first claim in the present matter.   Consequently, the court concludes that the petitioner is not barred by res judicata from raising the first claim.

Although the petitioner is not barred by res judicata, the petitioner has procedurally defaulted from his claim.   A claim that his sentence was illegal or imposed in an illegal manner is precisely the type of claim that must first be raised in the sentencing court or on direct appeal.   See, e.g., Chaparro v. Commissioner of Correction, 120 Conn.App. 41, 46–47, 990 A.2d 1261, cert. denied, 297 Conn. 903, 994 A.2d 1287 (2010).  Zabian v. Commissioner of Correction, 115 Conn.App. 144, 151, 971 A.2d 822 (2009).   The petitioner alleges as cause and prejudice what he alleges in the second claim of the amended petition:  ineffective assistance by trial counsel.   Thus, the dismissal of the first claim is inextricably linked to the viability of the amended petition's second claim and a dismissal of the second claim by necessity incorporates a dismissal of the first claim.

The petitioner's second claim is that trial counsel rendered ineffective assistance of counsel for not raising in the sentencing court claims asserted in the first claim.   The factual bases asserted have been readily available to the petitioner at the time of all three of his prior habeas corpus petitions.   Nothing the petitioner asserts is remotely describable as newly discovered evidence and the petitioner quite clearly could have previously raised and litigated the claimed ineffective assistance premised on the allegations in the first claim.  McCue v. Birmingham, 88 Conn.App. 630, 635–36, 870 A.2d 1126, cert. denied, 274 Conn. 905, 876 A.2d 14 (2005) (res judicata, or claim preclusion, bars any claim that could have been raised in prior proceeding).   The court concludes, therefore, that the petitioner is barred on the ground of res judicata from again assailing trial counsel's representation in the underlying criminal matter.   Additionally, the court further finds that the claim against trial counsel is successive and amounts to an abuse of the writ in this petition, the petitioner's fourth habeas corpus petition, attacking trial counsel's representation.

CONCLUSION

For all the foregoing reasons, judgment shall enter dismissing the petition for a writ of habeas corpus.   Counsel for the petitioner shall submit a judgment file to the clerk within thirty days of the date of this decision.

It is so ordered.

Robert E. Young, J.

FOOTNOTES

FN1. The Supreme Court granted certification limited to the following issue:  “Did the Appellate Court properly affirm the dismissal of the petitioner's second habeas petition as successive, where it is argued by the petitioner that a fact that was first discovered during the initial habeas proceeding constituted ‘new evidence’ sufficient to support the second petition?”   However, the Supreme Court dismissed the appeal on May 1, 2013..  FN1. The Supreme Court granted certification limited to the following issue:  “Did the Appellate Court properly affirm the dismissal of the petitioner's second habeas petition as successive, where it is argued by the petitioner that a fact that was first discovered during the initial habeas proceeding constituted ‘new evidence’ sufficient to support the second petition?”   However, the Supreme Court dismissed the appeal on May 1, 2013.

FN2. “The victim testified that she accidentally had left the vehicle's sliding door unlocked because it has to be locked manually, and she had forgotten to lock the vehicle manually after someone else had driven it on the previous day.”.  FN2. “The victim testified that she accidentally had left the vehicle's sliding door unlocked because it has to be locked manually, and she had forgotten to lock the vehicle manually after someone else had driven it on the previous day.”

FN3. The court takes judicial notice of the three prior habeas petitions docketed and adjudicated in the judicial district of Tolland.  Carpenter v. Planning & Zoning Commission, 176 Conn 581, 591, 409 A 2d 1029 (1979) ( “The trial court has the power to take judicial notice of court files of other actions between the same parties”)..  FN3. The court takes judicial notice of the three prior habeas petitions docketed and adjudicated in the judicial district of Tolland.  Carpenter v. Planning & Zoning Commission, 176 Conn 581, 591, 409 A 2d 1029 (1979) ( “The trial court has the power to take judicial notice of court files of other actions between the same parties”).

FN4. The sentence review division affirmed the petitioner's sentence..  FN4. The sentence review division affirmed the petitioner's sentence.

FN5. Judge Espinosa granted the state's motion to dismiss the motions to correct an illegal sentence.   The court's decision additionally indicates, in the alternative, that it was also denying the petitioner's motion to correct the illegal sentence..  FN5. Judge Espinosa granted the state's motion to dismiss the motions to correct an illegal sentence.   The court's decision additionally indicates, in the alternative, that it was also denying the petitioner's motion to correct the illegal sentence.

FN6. Respondent's counsel indicated at the hearing on the motion to dismiss the present matter that after reviewing the petitioner's objection, the respondent was not pressing dismissal based on the motion to correct the illegal sentence, but instead was focusing on res judicata premised on the sentence review proceeding.   Counsel for the respondent indicated that the sentencing court's decision on the alternative ground is dicta..  FN6. Respondent's counsel indicated at the hearing on the motion to dismiss the present matter that after reviewing the petitioner's objection, the respondent was not pressing dismissal based on the motion to correct the illegal sentence, but instead was focusing on res judicata premised on the sentence review proceeding.   Counsel for the respondent indicated that the sentencing court's decision on the alternative ground is dicta.

Young, Robert E., J.