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*********************************************** 
STATE OF CONNECTICUT v. ANTHONY CARTER

(AC 41656)

DiPentima, C. J., and Alvord and Pellegrino, Js.

Syllabus

The defendant, who had been convicted of the crimes of assault in the first

degree, attempt to commit assault in the first degree, risk of injury to

a child and criminal possession of a firearm, appealed to this court from

the judgment of the trial court dismissing his motion to set aside the

judgment of conviction. The court dismissed the defendant’s motion to

set aside the judgment, filed in 2017, on the ground of collateral estoppel

in that the defendant’s claim of ‘‘after-discovered fraud’’ on the court

had already been considered and rejected multiple times before, including, most recently, when the trial court denied a motion to open and

set aside the judgment he had filed in 2010, which alleged, inter alia,

fraud concerning ballistics evidence. Alternatively, the court concluded

that it lacked subject matter jurisdiction over the 2017 motion to set

aside the judgment and that, even if the defendant could make out a

cognizable fraud claim, no fraud exception exists to the finality of criminal judgments. Held that the defendant could not prevail on his claim

that the trial court erred in dismissing his 2017 motion to set aside the

judgment of conviction, as the defendant’s appeal was rendered moot

because he failed to challenge all independent grounds for the court’s

adverse ruling: although the defendant claimed that it was error for the

trial court to find that it lacked subject matter jurisdiction over the 2017

motion to set aside the judgment, he failed to challenge the court’s

independent ground for dismissing the 2017 motion to set aside the

judgment, namely, that the defendant’s claim was substantively the same

as others he had made multiple times before, most recently in 2010,

and, thus, was collaterally estopped, and, therefore, even if this court

agreed with the defendant on the merits of his subject matter jurisdiction

claim, there was no practical relief that could be afforded to him in

light of the unchallenged collateral estoppel basis for the trial court’s

dismissal; accordingly, the defendant’s claims were moot and this court

was without subject matter jurisdiction over his appeal.

Argued September 11—officially released November 5, 2019

Procedural History

Substitute information charging the defendant with

the crimes of assault in the first degree, attempt to

commit assault in the first degree, risk of injury to a

child and criminal possession of a firearm, brought to

the Superior Court in the judicial district of Hartford

and tried to the jury before Mulcahy, J.; verdict and

judgment of guilty; thereafter, the court, Schuman, J.,

granted the state’s motion to dismiss the defendant’s

motion to set aside the judgment; subsequently, the

court, Schuman, J., denied the defendant’s motion for

reconsideration; thereafter, the court, Schuman, J., dismissed the defendant’s motion to set aside the judgment, and the defendant appealed to this court.

Appeal dismissed.

Anthony Carter, self-represented, the appellant

(defendant).

Lisa A. Riggione, senior assistant state’s attorney,

with whom, on the brief, were Gail P. Hardy, state’s

attorney, and Richard J. Rubino, senior assistant state’s

attorney, for the appellee (state).
Opinion

ALVORD, J. The self-represented defendant, Anthony

Carter, appeals from the trial court’s dismissal of his

motion to set aside a judgment of conviction imposed

on August 2, 2002. On appeal, the defendant claims that

(1) the prosecutor committed fraud by writing in the

state’s response to the defendant’s motion for reconsideration, dated June 2, 2017, that it was not ‘‘[t]he appropriate mechanism’’ to secure relief and that a ‘‘motion

for a new trial or a motion to set aside the judgment’’

would be; (2) the court’s determination that it lacked

subject matter jurisdiction over his motion to set aside

his judgment of conviction was erroneous; and (3) even

if the court did not err in its subject matter jurisdiction

determination, the state ‘‘[submitted] to the jurisdiction

of the court.’’ The state argues, in part, that because

the defendant fails to challenge all independent grounds

for the court’s adverse ruling, his appeal is rendered

moot. We agree with the state. Accordingly, we dismiss

the defendant’s appeal.1

The following relevant facts are set forth in our decision from one of the defendant’s prior appeals. State

v. Carter, 139 Conn. App. 91, 55 A.3d 771 (2012), cert.

denied, 307 Conn. 954, 58 A.3d 974 (2013). ‘‘[T]he defendant’s prosecution arose from the terrible consequences of a drug turf war, in which a stray bullet fired

from the defendant’s gun struck and seriously injured

a seven year old girl. . . . Following a jury trial, the

defendant was convicted of assault in the first degree

in violation of General Statutes § 53a-59 (a) (5), attempt

to commit assault in the first degree in violation of

General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (5),

risk of injury to a child in violation of General Statutes

§ 53-21 (a) (1) and criminal possession of a firearm in

violation of General Statutes § 53a-217 (a) (1), and the

court rendered judgment accordingly. The court sentenced the defendant to a total effective term of twentyseven years incarceration.’’ (Internal quotation marks

omitted.) Id., 92.

On June 20, 2017, the defendant filed a motion to set

aside the judgment.2 Therein, the defendant claimed

‘‘after-discovered fraud on the court.’’ (Internal quotation marks omitted.) In his memorandum of law in

support of the operative motion, the defendant

expounded ‘‘that the prosecution altered, concealed

and/or removed from the trial proceedings documents

prepared by the Hartford Police Department with purpose to impair its verity and availability, and that the

prosecution passed the altered document off to the

defense, representing it to be ‘[simply] a distance’ measurement, knowing it to be false.’’ On August 3, 2017,

the state moved to dismiss the operative motion,

arguing that the trial court lacked subject matter jurisdiction. The trial court, Schuman, J., granted the state’s

motion on October 30, 2017.3
In the court’s ruling, it detailed part of the defendant’s

‘‘voluminous history’’ of postconviction litigation,

including a motion to open and set aside the judgment

of conviction filed in 2010. The defendant based his

2010 motion on ‘‘fraud concerning ballistics evidence

and reports prepared by the Hartford Police Department about that evidence.’’ (Internal quotation marks

omitted.) That motion was denied by the court, Gold,

J., on two grounds: (1) ‘‘the motion was filed well

beyond the four month period after the entry of the

criminal conviction and judgment’’; and (2) ‘‘the motion

was barred by collateral estoppel in that Judge Nazzaro

had rejected the same claim in the defendant’s third

habeas petition.’’4 Applying this history to the operative

motion, Judge Schuman concluded that the defendant’s

claim bore ‘‘only semantic differences from the defendant’s claim . . . raised in [the 2010] motion to open.’’

As that claim had already been considered and rejected

multiple times before, most recently by Judge Gold and

this court, the trial court concluded that it ‘‘necessarily

must grant the state’s motion to dismiss . . . .’’

The court further concluded that, even if the defendant’s claim were to be treated as distinct from the

one he had raised in 2010, the operative motion still

warranted dismissal. First, the court cited to State v.

Carrillo Palencia, 162 Conn. App. 569, 580–82, 132 A.3d

1097, cert. denied, 320 Conn. 927, 133 A.3d 459 (2016),

for the proposition that ‘‘absent a statute or rule to the

contrary, the Superior Court loses jurisdiction over the

defendant’s conviction at the time of sentencing,’’ a

principle that ‘‘applies to a postconviction ‘motion to

open judgment.’ ’’ The court stated that the defendant’s

motion to set aside the judgment was substantively the

same as a motion to open the judgment ‘‘and, therefore,

falls under the same rule.’’ Second, the court rejected

the defendant’s argument that, under Connecticut law,

there is a fraud exception to the general finality rule for

criminal judgments and that, even if such an exception

existed, the defendant’s claim was ‘‘too vague to label

it definitively as one of fraud on the court.’’

The defendant filed the present appeal on May 17,

2018. In the defendant’s preliminary statement of issues,

he claimed that the trial court abused its discretion by

dismissing the operative motion after determining ‘‘it

did not have subject matter jurisdiction . . . .’’ In the

defendant’s appellate brief, he raises three claims,

which are set forth in the opening paragraph of this

decision. The defendant does not, however, claim that

the court’s collateral estoppel ruling was erroneous.5

The state argues that even if the court ‘‘incorrectly

determined that it lacked jurisdiction to set aside the

judgment,’’ the court’s ruling ‘‘dismissing the [operative]

motion on the basis of collateral estoppel . . . stand[s]

unchallenged.’’ According to the state, the defendant’s

failure to challenge the court’s collateral estoppel ruling
renders moot his appeal under State v. Lester, 324 Conn.

519, 153 A.3d 647 (2017), leaving this court without

subject matter jurisdiction.

‘‘Mootness is a question of justiciability that must be

determined as a threshold matter because it implicates

[an appellate] court’s subject matter jurisdiction

. . . .’’ (Internal quotation marks omitted.) Id., 526.

‘‘Because courts are established to resolve actual controversies, before a claimed controversy is entitled to

a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy

between or among the parties to the dispute . . . (2)

that the interests of the parties be adverse . . . (3) that

the matter in controversy be capable of being adjudicated by the judicial power . . . and (4) that the determination of the controversy will result in practical relief

to the complainant.’’ (Internal quotation marks omitted.) Id., citing State v. Nardini, 187 Conn. 109, 111–12,

445 A.2d 304 (1982). ‘‘[I]t is not the province of appellate

courts to decide moot questions, disconnected from the

granting of actual relief or from the determination of

which no practical relief can follow. . . . In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or [the] defendant in any way.’’ (Emphasis omitted; internal quotation

marks omitted.) State v. Holley, 174 Conn. App. 488,

504, 167 A.3d 1000, cert. denied, 327 Conn. 907, 170

A.3d 3 (2017), cert. denied, U.S. , 138 S. Ct. 1012,

200 L. Ed. 2d 275 (2018).

In the present case, when the court dismissed the

operative motion, it relied on two independent grounds.

The court first concluded that the defendant’s claim

was substantively the same as others he made multiple

times before—most recently in 2010—and, thus, was

collaterally estopped. The court concluded, alternatively, that it lacked subject matter jurisdiction over

the operative motion, and that, even if the defendant

could make out a cognizable fraud claim, no fraud

exception exists to the finality of criminal judgments.

On appeal, the defendant claims that it was error for

the court to find it lacked subject matter jurisdiction

over the operative motion because ‘‘a trial court,

whether civil or criminal, never loses jurisdiction over

a judgment obtained by fraud.’’ The defendant did not,

however, claim that the court’s reliance on collateral

estoppel was erroneous. Thus, even if we were to agree

with the defendant on the merits of his subject matter

jurisdiction claim, we would be incapable of providing

him any practical relief in light of the unchallenged

collateral estoppel basis for the court’s dismissal. See

State v. Lester, supra, 324 Conn. 527–28 (dismissing

as moot defendant’s appeal of trial court’s granting of

state’s motion in limine because there were ‘‘independent bases for the trial court’s exclusion of the evidence

. . . that the defendant [had] not challenged in [his]
appeal’’); State v. Holley, supra, 174 Conn. App. 506–507

(dismissing defendant’s appeal as moot with respect to

suppression of evidence claim because defendant did

not challenge independent, verbal consent basis for

upholding trial court’s decision). Therefore, the defendant’s claims are moot, and we are without subject

matter jurisdiction over his appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

1 Because we dismiss the defendant’s claims as moot, we do not reach

the merits of his claims.

2 For ease of reference, the defendant’s motion to set aside the judgment

will hereinafter be referred to as the operative motion.

3 The defendant filed a motion to reconsider the dismissal of the operative

motion. That motion was denied by Judge Schuman on November 21, 2017.

4

Judge Gold’s decision was affirmed by this court. State v. Carter, supra,

139 Conn. App. 93.

5 At oral argument before this court, the defendant argued that, because

the trial court sua sponte raised the issue of collateral estoppel in its ruling

on the operative motion, the defendant had no notice of that issue in order

to make an adequate record. Because the defendant advanced this claim

for the first time during oral argument, we decline to consider it. See State v.

Marcelino S., 118 Conn. App. 589, 592 n.4, 984 A.2d 1148 (2009) (‘‘[a]ppellate

courts generally do not consider claims raised for the first time at oral

argument’’), cert. denied, 295 Conn. 904, 988 A.2d 879 (2010).