Ernest Francis v. State of Connecticut (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT

The petitioner, Ernest Francis, was convicted of murder in connection with the 1990 stabbing death of Anthony Smith and was sentenced to fifty years incarceration on April 15, 1992.   His conviction was affirmed in State v. Francis, 228 Conn. 118, 635 A.2d 762 (1993).   He filed this petition for a new trial on June 11, 2008, naming as respondents the State of Connecticut and State's Attorney James E. Thomas.   He alleged that the trial judge violated his rights under the state and federal constitutions by signing the warrant for his arrest, presiding over his probable cause hearing, presiding over pretrial plea negotiations in which he was offered a sentence of twenty-seven years, and then presiding over his jury trial and sentencing him to fifty years of incarceration.   He further alleged that respondent Thomas (1) fraudulently concealed the fact that the same judge who conducted the plea negotiations subsequently presided over the defendant's trial, and (2) conspired with the court to convict the petitioner and to obtain an unfair advantage.

The respondents answered and asserted, as a special defense, that the petition is barred by General Statutes § 52–582, which requires that petitions for new trial be brought within “three years next after the rendition of the judgment or decree complained of ․”

On March 29, 2011, after the respondents had filed their answer, the petitioner filed an amended petition that contained similar factual allegations but did not allege fraudulent concealment of a cause of action.   Rather, the petitioner alleged, in count one, that the respondent prosecutor “did not divulge” that the same trial judge had conducted plea negotiations and presided over the trial.   In count two, he alleged that the prosecutor had a “fiduciary duty to the petitioner to advise the court that there is a conflict of interest in accordance with the law.”   In count three, he alleged that the state “did not alert the petitioner of an inherent conflict of interest,” and in count four, he alleged that the state had a fiduciary duty to alert the petitioner to “an apparent due process violation.”   None of the four counts in the amended petition asserted a claim of fraudulent concealment.

The respondents have now moved for summary judgment on their special defense that the petition is time barred.   They rely on the undisputed fact that the petitioner was sentenced on April 15, 1992, and assert that the three-year statute of limitations for bringing the petition therefore expired on April 15, 1995.

“Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.”  (Internal quotation marks omitted.)   Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).  “As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits.”  Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995).   Likewise, “[t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence.”  (Emphasis omitted;  internal quotation marks omitted.)  Deutsche Bank National Trust Co. v. Shivers, 136 Conn.App. 291, 296, 44 A.3d 879, cert. denied, 307 Conn. 938, 56 A.3d 950 (2012).

General Statutes § 52–270(a) provides in relevant part:  “The Superior Court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed ․” “The opportunity for a new trial when new evidence comes to light provides a criminal defendant an important procedural mechanism for remedying an injustice.”  Holliday v. State, 111 Conn.App. 656, 662–63, 960 A.2d 1101 (2008), cert. denied, 291 Conn. 902, 967 A.2d 112 (2009).  “A critical limitation on the exercise of the trial court's discretion in passing on such a petition for a new trial, however, is the statute of limitations.   See General Statutes § 52–582.”  Id., 663.  “The three year statute of limitations on a petition for a new trial based on newly discovered evidence is the product of the legislature's balancing of the interests of the petitioner against the interests of the public and the state ․ Thus, for a petition for a new trial, within the three year limitations period, the petitioner's interests trump those of the public and the state.   Beyond that period, however, the interests of the public and the state trump those of the petitioner.”  (Citations omitted.)  Summerville v. Warden, 229 Conn. 397, 426–27, 641 A.2d 1356 (1994).   The three-year period begins to run from the date of the rendition of judgment by the trial court.   Varley v. Varley, 181 Conn. 58, 61, 434 A.2d 312 (1980).   In a criminal case, the date of the imposition of the sentence by the trial court is the date of rendition of judgment.  State v. Coleman, 202 Conn. 86, 89, 519 A.2d 1201 (1987).

The petitioner's underlying claim is one of constitutional magnitude.   It is improper for a judge to preside over a criminal trial and sentencing after participating in pretrial plea negotiations.   See State v. Revelo, 256 Conn. 494, 775 A.2d 260, cert. denied, 534 U.S. 1052, 122 S.Ct. 639, 151 L.Ed.2d 558 (2001).   Such an impropriety does not automatically require reversal of a defendant's conviction, but requires a review of the record as a whole “for evidence of actual or apparent prejudice to the defendant.”  State v. D'Antonio, 274 Conn. 658, 681, 877 A.2d 696 (2005).   Even a claim of constitutional magnitude, moreover, may be time barred.   See Summerville v. Warden, supra, 229 Conn. 426–38.

In this case, the respondents submitted copies of a transcript of the petitioner's sentencing hearing on April 15, 1992, the record from his appeal to the Supreme Court, and a copy of a court decision striking, as time barred, an earlier petition for new trial filed by the petitioner in 1999 on different grounds.   The petitioner has not challenged the authenticity of the documents or the fact that he was sentenced on April 15, 1992.   It is undisputed that the date of rendition of judgment in his case was April 15, 1992, and absent any tolling of the statute of limitations, a petition for new trial was required to be filed by April 15, 1995.   This petition was filed on June 11, 2008, more than thirteen years beyond that limitation period.

The petitioner argues that he should benefit from “equitable tolling” of the statute of limitations.   He also renews a claim of fraudulent concealment, although that claim is no longer in the pleadings in the case.   In support of his arguments, he represents that, in 2004, he filed a motion to correct an illegal sentence in the criminal case underlying this petition.   He initially represented himself in that proceeding, but a public defender was subsequently appointed to represent him.   In his motion, he alleged that his sentencing disposition was illegal because the same judge had signed his arrest warrant, conducted his probable cause hearing, and presided over his trial and sentencing.   The judge presiding over the hearing on his motion (Espinosa, J.) raised a question as to whether the same judge presided over the pretrial negotiations.   The petitioner told the court that he had a transcript from October 25, 1990, that indicated that a pretrial conference was set down with the judge who ultimately presided over his jury trial.   He represents that he told Judge Espinosa that he had attempted to subpoena the prosecutor who had handled the criminal trial and the attorney who had represented the petitioner in that trial in 1992 to confirm that the judge who presided over his jury trial had, in fact, conducted the pretrial and made an offer of a twenty-seven-year sentence.   The petitioner further claims that although counsel was appointed to represent him in relation to his 2004 motion to correct an illegal sentence, the issue of whether the same judge conducted both his pretrial plea negotiations and his trial was not explored.   He also claims that in 2007 he received a letter from respondent Thomas, in response to a request by the petitioner for a sentence modification, that indicated that the same judge had in fact conducted the petitioner's pretrial and presided over his jury trial.

A claim of fraudulent concealment is usually a question of fact that must be resolved through an evidentiary hearing.   The court concludes, nevertheless, that no hearing is required here.   In the first place, the claim of fraudulent concealment was dropped from the pleadings when the petitioner amended his petition in 2011.   Equally important, however, is the petitioner's admission that he was aware of facts that should have prompted him to investigate this claim at least as early as November 5, 2004.   He nevertheless did not file this action until June 11, 2008.   Thus, even if a claim of fraudulent concealment is properly before the court, the facts admitted by the petitioner in his opposition to summary judgment establish that he waited more than three years after obtaining information that he had a potential claim before filing his petition for new trial.

The petitioner did not produce any evidence in admissible form to support his claims.   He did not provide a copy of the transcript from the November 5, 2004 hearing before Judge Espinosa, but merely presented purported quotations from it in his brief.   He did not provide a copy of the 2007 letter that he claims confirms that the same judge presided over his pretrial negotiations and jury trial and sentencing.   Although summary judgment could be granted on the petitioner's failure to present such evidence, the court has assumed, for the purposes of this decision, that the representations in the petitioner's brief are true.   If true, those representations would establish that the statute of limitations was tolled, at the latest, to November 5, 2004, when the petitioner had sufficient evidence—in the form of a transcript from 1990 indicating that the pretrial was scheduled to be held before the judge who later presided over the petitioner's criminal trial—to put him on notice of a potential claim.   Once he had notice of a potential claim, he had an obligation to exercise due diligence to determine whether the claim could be substantiated.   Moreover, he has presented no evidence to suggest that he did not have actual knowledge of his claim within three years of November 5, 2004.   He claims to have received confirmation of the trial judge's participation in his pretrial negotiations in 2007, yet he waited more than six months beyond that time to bring this petition.

For the foregoing reasons, viewing all the arguments by the petitioner as if they were supported by evidence and as if they were true, the court concludes that the petition is barred by the statute of limitations.   Accordingly, the motion for summary judgment is granted.

BY THE COURT,

Sheila A. Huddleston, Judge

Huddleston, Sheila A., J.