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MARK STUART v. RICHARD BLUMENTHAL,

ATTORNEY GENERAL, ET AL.

(AC 35870)

Sheldon, Keller and Lavery, Js.

Argued January 8—officially released August 4, 2015

(Appeal from Superior Court, judicial district of

Hartford, Schuman, J.)

Patrick Tomasiewicz, with whom was Mario Cerame, for the appellant (petitioner).

James M. Ralls, assistant state’s attorney, with

whom, on the brief, were Gail P. Hardy, state’s attorney, and John Fahey, senior assistant state’s attorney,

for the appellees (respondents).
Opinion

LAVERY, J. The petitioner, Mark Stuart, appeals from

the judgment of the trial court denying his amended

petition for a new trial. On appeal, the petitioner claims

that the trial court abused its discretion in denying his

petition on the ground that he had failed to establish

an ‘‘other reasonable cause’’ to grant his petition pursuant to General Statutes § 52-270 (a). We disagree and,

accordingly, affirm the judgment of the trial court.

In May, 2006, following a jury trial, the petitioner was

convicted of three counts of larceny in the first degree

in violation of General Statutes § 53a-122, three counts

of conspiracy to commit larceny in the first degree

in violation of General Statutes §§ 53a-48 and 53a-122,

three counts of forgery in the second degree in violation

of General Statutes § 53a-139, nine counts of possession

of a motor vehicle with an altered vehicle identification

number in violation of General Statutes § 14-149, nine

counts of conspiracy to possess a motor vehicle with

an altered vehicle identification number in violation of

§§ 53a-48 and 14-149, and one count of improper use

of a motor vehicle registration in violation of General

Statutes § 14-147.

The relevant facts related to the petitioner’s conviction, as could have reasonably been found by the jury,

are set forth in State v. Stuart, 113 Conn. App. 541, 967

A.2d 532, cert. denied, 293 Conn. 922, 980 A.2d 914

(2009). ‘‘On December 9, 2004, an airplane patrolling

for the state police picked up a LoJack signal emanating

from a parking lot in Glastonbury. LoJack is a motor

vehicle transmitting or homing device that can be activated to emit a unique signal if a car is stolen. It allows

law enforcement personnel to locate a stolen vehicle

by entering the vehicle’s VIN1into a tracking computer

that is capable of activating and locating its unique

signal. The pilot alerted Glastonbury police and directed

them to the parking lot. The police found the parking

lot and identified an Escalade as the vehicle that was

broadcasting the signal. The police also matched the

make, model, year and color of the vehicle with information provided by the LoJack system. The Escalade had

a ‘for sale’ sign in the window with a telephone number

on it. The telephone number was identified as belonging

to the [petitioner]. The license plates on the Escalade

were registered to a different vehicle, a Chevrolet

Lumina owned by Joanne Arena, the [petitioner’s] former wife.

‘‘When the police questioned the [petitioner] about

the Escalade, he stated that he did not know that it

was stolen and that he had purchased it from Ozvaldo

Seda the night before. The [petitioner] then brought to

the attention of the police a certificate of title to a

Navigator, which he stated he had also purchased from

Seda. The Navigator certificate was later found to be
fraudulent. The Escalade certificate of title was found

to contain irregularities, including nonmatching VINs,

and was also shown to be counterfeit. After obtaining

a search warrant, the police searched the [petitioner’s]

driveway, which contained approximately six additional vehicles, including a Navigator and a Corvette.

The police found irregularities on several of the Corvette’s VINs and the Navigator’s VINs, and it was later

determined that these VINs had been altered. The Escalade was also found to have altered VINs. The Corvette,

Navigator and Escalade were all seized by the police.

‘‘Inside the [petitioner’s] house, the police found a

New Jersey certificate of title to the Corvette, which

was later confirmed by New Jersey officials to be counterfeit. There were such a large number of other documents in the house relating to motor vehicles that an

investigating officer testified at trial that it appeared as

though some sort of an automobile business was being

run out of the house. Among those papers was a note,

written by the [petitioner], with the name ‘Ozzie,’ Seda’s

nickname, written on it. The note was dated December

3, 2004, which was approximately three days before the

Escalade was stolen, and stated: ‘$21,500 for Escalade

to Ozzie’ and ‘$11,000 to Ozzie for Navigator.’

‘‘At trial, a witness, Alfred Maldonado, testified that

he had met the [petitioner] through Seda. Seda had a

car dealership and had purchased several vehicles from

Maldonado. Maldonado testified that he had met with

the [petitioner] and Seda in Hartford where the [petitioner] paid $10,000 for the Navigator and $20,000 for

the Escalade. Maldonado testified that during this transaction, he indicated to the [petitioner] that the vehicles

were stolen. On December 14, 2004, Maldonado was

arrested for an attempted transfer of another vehicle

to Seda. He pleaded guilty to those charges and was

sentenced to eighteen months incarceration.’’ (Footnote added.) Id., 545–47.

On May 18, 2006, the trial court sentenced the petitionerto a total effective sentence of twenty years incarceration, execution suspended after ten years, followed

by five years of probation. On direct appeal, this court

affirmed in part and reversed in part the judgments,

holding that the double jeopardy clause of the federal

constitution required the vacation of twelve counts and

that there was insufficient evidence to convict on four

counts.2

Id., 555–69. Specifically, this court held, inter

alia, that ‘‘there was . . . sufficient evidence to support

the [petitioner’s] conviction of conspiracy to possess

stolen vehicles and conspiracy to possess vehicles with

altered VINs as to the Escalade and the Navigator but

not as to the Corvette.’’ Id., 545. On remand, the petitioner received the same sentence as that imposed previously. In August, 2011, the petitioner was released on

probation after being incarcerated for approximately

five years.
On April 9, 2013, the petitioner filed an amended

petition for a new trial,3 primarily to support his effort

to obtain the reinstatement of his license to practice

dentistry. The petitioner brought this action against the

respondents, the Attorney General and the Commissioner of Correction (respondents).4

In his amended

petition, the petitioner argued in relevant part that a

new trial is required for two reasons. First, he argued

that a new trial is required based on newly discovered

evidence, specifically, that Maldonado told two of his

fellow inmates that the petitioner did not know that

the vehicles were stolen.5 Second, he contended that a

new trial is required because of prosecutorial impropriety, specifically, the prosecutor’s failure to correct Maldonado’s misstatement on cross-examination that he

would not receive a lighter sentence in exchange for

his testimony and, in fact, could be subjected to additional jail time if he testified against the petitioner at

his criminal trial.6

The following additional facts concerning Maldonado’s criminal trial, as stipulated to by the parties on

April 22, 2013, after the petitioner filed his amended

petition for a new trial, are also relevant to our resolution of the present appeal. The parties stipulated that

in February, 2006, an in-chambers, pretrial hearing was

held before the court, Norko, J., regarding Maldonado’s

criminal cases, one case involving a Dodge Ram and

the other case involving the Escalade and the Navigator.

The plea offer made to Maldonado through his attorney

‘‘was a cap of [ten] years on the pending charges in the

absence of cooperation or [five] years if [Maldonado]

cooperated with the State in the case against [the petitioner], with the right to argue for less depending on

the level of cooperation.’’ A hearing was then held

before the court, Cofield, J., at which both Maldonado

and his counsel were present in the courtroom. Judge

Cofield, the petitioner’s attorney, Maldonado’s attorney,

and the prosecutor were all aware of and discussed the

plea offer that had been made to Maldonado prior to

his testimony during the petitioner’s criminal trial.

On June 20, 2013, after a trial to the court, Schuman,

J., the court issued a written ruling denying the petitioner’s amended petition for a new trial. In its decision,

the court stated: ‘‘The relevant facts begin with the

following colloquy with the court [and the petitioner’s

trial counsel, John Franckling] prior to Maldonado’s

testimony [at the petitioner’s criminal trial]:

‘‘The Court: All right. And, Attorney Franckling, you

know that during cross-examination you are free to

question [Maldonado] about whether any promises have

been made to him.

‘‘[Attorney Franckling]: That’s correct. And there was

one issue, my understanding of [Maldonado’s] offer is

that it is—and I’m sure [the prosecutor] will correct
me or [Maldonado’s attorney] will correct me—that is

a cap of ten and a floor of five. What I would—my only

concern is that when I’m questioning him about that, I

think it would be inappropriate—and I don’t know if

she would do this or not—that it came from a judicial

pretrial, I assume to cite.

‘‘The Court: I don’t know that.

‘‘[Attorney Franckling]: But that’s the court’s offer,

isn’t it? That’s not my offer. And I think that would be

inappropriate because that would lend some judicial

sanction to [Maldonado’s] credibility.

‘‘[The Prosecutor]: The state would agree not to bring

up where that offer came from. . . .

‘‘During the state’s direct examination of Maldonado,

the state did not ask about Maldonado’s plea offer,

nor did Maldonado mention it. On cross-examination,

Franckling’s inquiry proceeded as follows:

‘‘Q. Notwithstanding your criminal history, you have

a very beneficial offer from the state of Connecticut to

resolve your matters. Correct?

‘‘A. No.

‘‘Q. It’s not as beneficial as you’d like it to be, is it?

‘‘A. No.

‘‘Q. But it’s much more beneficial than if you had not

testified against [the petitioner]. Correct?

‘‘A. No.

‘‘Q. Are you telling me that there is not an offer—

Withdrawn. You’re telling us that there’s not a cap on

your offer? If you don’t testify, you get the cap, and if

you do testify, you get the four [or five years]?

‘‘A. I don’t understand. What’s a cap?

‘‘Q. The most that you’re going to get.

‘‘A. They just gave me a number. That’s all. That’s so

far that I know of.

‘‘Q. They gave you two numbers. Right?

‘‘A. Yes.

‘‘Q. A high number—

‘‘A. And a low number.

‘‘Q. —And a lower number.

‘‘A. That’s correct.

‘‘Q. You won’t characterize it as a lower number, but

it’s lower than the cap. Right?

‘‘A. Correct.

‘‘Q. But if [you] testify today, you get the lower number, don’t you?

‘‘A. No.
‘‘Q. What do you get?

‘‘A. Probably more time.

* * *

‘‘Q. And you had a cap. In other words, a higher

number and a floor of four or five years. Correct?

‘‘A. Um-hmm.

‘‘Q. And the five years was for—was if you testified

against [the petitioner]?

‘‘A. No. . . .

‘‘The state conducted no redirect examination. At no

point during the trial did the state correct Maldonado’s

misstatement that he would not receive a lighter sentence if he testified against the [petitioner]. In its opening summation, the state did not mention Maldonado or

his testimony. However, during the defense summation,

[Franckling] argued as follows: And [Maldonado] said

he wasn’t sure what his offer was. But we know if he

didn’t testify, he’s got one high number, and if he did

testify, he’s got a low number.

‘‘In its rebuttal summation, the state responded as

follows: Go back and listen to the testimony again. It

wasn’t a high number if [Maldonado] didn’t testify, and

a low number if he did testify. He didn’t know. He knew

what the range was, what his offer was, but he didn’t

know what he would get as far as time based on his

testimony. As a matter of fact, he testified, I’ll probably

get more [time] now. So, he testified at his [peril] knowing that he would probably get more jail time because

he testified about his relationship with [the petitioner]

in the stolen motor vehicles in question, and the forged

documents in question. [Maldonado] was a conspirator

in this case along with [Seda and the petitioner].’’ (Citations omitted; internal quotation marks omitted.)

The court concluded that the petitioner’s claim that

the state failed to correct Maldonado’s misstatements

was not appropriate for consideration on this petition

for a new trial because it found that the petitioner could

have raised it both at trial and on direct appeal. With

respect to his ability to raise this claim at his criminal

trial, the court noted that the petitioner ‘‘had both the

facts and the law necessary to raise the [prosecutor’s]

failure to act before the trial court.’’ The court further

noted that although the petitioner did not, in fact, raise

this claim during the criminal trial, he could have sought

appellate review of the unpreserved claim of prosecutorial impropriety.7

Further, the court noted that even if the petitioner

did raise this claim properly in his amended petition

for a new trial, his claim would fail on the merits. In

reliance on State v. Ouellette, 295 Conn. 173, 186, 989

A.2d 1048 (2010), the court concluded that, although

‘‘the prosecutor . . . failed to uphold the highest stan-
dards of her profession,’’ her failure to correct the misleading testimony of Maldonado did not ‘‘[affect] the

judgment of the jury.’’ (Internal quotation marks omitted.) The court set forth three reasons in support of its

conclusion: (1) ‘‘the state neither elicited nor exacerbated the inaccurate testimony,’’(2)‘‘the court provided

a lengthy instruction on accomplice testimony,’’8 and

(3) ‘‘the state had a strong circumstantial case against

the petitioner wholly independent of Maldonado’s testimony.’’ With respect to the strength of the state’s circumstantial case against the petitioner, the court noted

that ‘‘Maldonado’s testimony contributed only marginally to the state’s case,’’ and ‘‘Franckling impeached

Maldonado thoroughly and yet the jury still convicted

[the petitioner].’’ Having rejected the prosecutorial

impropriety ground, the court also rejected the newly

discovered evidence ground and denied the petition.

On July 22, 2013, the petitioner filed the present appeal.

As a preliminary matter, we set forth our standard

of review. ‘‘Our standard of review of a court’s decision

with respect to a petition for a new trial is the abuse

of discretion standard. . . . In reviewing claims that

the trial court abused its discretion, great weight is

given to the trial court’s decision and every reasonable

presumption is given in favor of its correctness. . . .

We willreverse the trial court’s ruling only if it could not

reasonably conclude as it did. . . . [T]he proceeding is

essentially equitable in nature; the petitioner has the

burden of alleging and proving facts which would, in

conformity with our settled equitable construction of

the statutes, entitle him to a new trial on the grounds

claimed . . . .’’ (Citations omitted; internal quotation

marks omitted.) Fitzpatrick v. Hall-Brooke Foundation, Inc., 72 Conn. App. 692, 697, 807 A.2d 480, cert.

denied, 262 Conn. 914, 811 A.2d 1291 (2002).

We now turn to the relevant principles of substantive

law that guide us in our analysis. As noted, the petitioner

based his amended petition for a new trial in part on

the ‘‘other reasonable cause’’ provision of § 52-270 (a).

Section 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,

or the want of actual notice to any plaintiff of the entry

of a nonsuit for failure to appear at trial or dismissal

for failure to prosecute with reasonable diligence, or

for other reasonable cause, according to the usual rules

in such cases. . . .’’ (Emphasis added.)

Our appellate courts have limited the circumstances

in which reasonable cause to grant a petition for a new

trial may be found. ‘‘Although . . . § 52–270 permits

the court to grant a new trial upon proof of reasonable

cause, the circumstances in which reasonable cause
may be found are limited. . . . The basic test of reasonable cause is whether a litigant, despite the exercise of

due diligence, has been deprived of a fair opportunity

to have a case heard on appeal. . . . A new trial may

be granted to prevent injustice in cases where the usual

remedy by appeal does not lie or where, if there is an

adequate remedy by appeal, the party has been prevented from pursuing it by fraud, mistake or accident. . . .

‘‘Due diligence is a necessary condition to success

in prosecuting a petition for a new trial. . . . Under

§ 52-270 the exercise of due diligence is a condition

precedent to a finding of reasonable cause. . . . Reasonable is a relative term which varies in the context

in which it is used, and its meaning may be affected by

the facts of the particular controversy. . . . It is also

synonymous with [e]quitable, fair, just. . . . [Section

52-270] does not furnish a substitute for, nor an alternative to, an ordinary appeal, but applies only when no

other remedy is adequate and when in equity and good

conscience relief against a judgment should be

granted.’’ (Citations omitted; emphasis altered; internal

quotation marks omitted.) Jacobs v. Fazzano, 59 Conn.

App. 716, 724, 757 A.2d 1215 (2000). Having set forth

the relevant background facts and procedural history,

the appropriate standard of review, and the relevant

principles of substantive law that guide our analysis,

we now turn to the petitioner’s claim on appeal.

As noted, the petitioner’s sole claim on appeal is that

the court abused its discretion in denying his amended

petition for a new trial on the basis that he had failed

to establish an ‘‘other reasonable cause’’ to grant his

petition pursuant to § 52-270 (a). Specifically, the petitioner argues that ‘‘the trial court correctly found mistake by trial and appellate counsel for failing to raise

the issue of prosecutorial impropriety at trial and on

appeal . . . .’’ Further, the petitioner argues that ‘‘[d]ue

to mistakes by trial and appellate counsel, the [petitioner] did not have the opportunity to raise the [claim

of] prosecutorial impropriety at trial or on appeal,’’

depriving him of his due process right to a fair trial

under the fourteenth amendment to the United States

constitution. The petitioner, accordingly, does not

address whether there was an adequate remedy by

appeal, but instead argues that he was prevented from

pursuing such relief due to the mistake of his trial and

appellate counsel.9

Generally, our appellate courts have declined to grant

a new trial if the petitioner’s mistake could have been

prevented by the exercise of due diligence. See, e.g.,

Tilo Co. v. Fishman, 164 Conn. 212, 214–15, 319 A.2d

409 (1972) (plaintiff not entitled to new trial on ground

that it had lost right of appeal from judgment due to

delay in issuance of notice of decision and judgment

as plaintiff had twenty days after issuance of delayed
notice within which to file appeal but failed to do so);

Milestan v. Tisi, 140 Conn. 464, 469, 101 A.2d 504 (1953)

(alleged mistake of defendant was made after rendering

of judgment and was not basis for new trial on ground

of mistake); Murphy v. Zoning Board of Appeals, 86

Conn. App. 147, 156–57, 860 A.2d 764 (2004) (property

owners’ mistake in interpreting rules of practice did

not entitle them to new trial), cert. denied, 273 Conn.

910, 870 A.2d 1080 (2005); Fitzpatrick v. Hall-Brooke

Foundation, Inc., supra, 72 Conn. App. 700 (court not

persuaded that party’s untimely appeal was kind of

‘‘ ‘mistake’ ’’ that warrants new trial); Hryniewicz v.

Wilson, 51 Conn. App. 440, 445–46, 722 A.2d 288 (1999)

(defendants’ failure to refile motion to strike following

amendment of complaint showed lack of due diligence

and, therefore, did not constitute reasonable cause warranting new trial). Here, the court expressly found that

the petitioner’s failure to raise the claim of prosecutorial

impropriety could have been prevented by the exercise

of due diligence. The petitioner has not demonstrated

that this finding was erroneous.

The court reasonably concluded that ‘‘the petitioner

had both the facts and the law necessary to raise the

state’s failure to act before the trial court [and on direct

appeal].’’ It is apparent from the trial transcripts and

the parties’ stipulation of facts that Franckling was fully

aware of the plea offer that Maldonado had received

in exchange for his testimony in advance of the petitioner’s criminal trial. Franckling was present during an inchambers judicial pretrial conference before the court,

Cofield, J., at which time the plea offer made to Maldonado was discussed. At the petitioner’s criminal trial,

Franckling questioned Maldonado on cross-examination regarding the plea offer that had been made to

him. Additionally, during the defense’s closing argument, Franckling noted that, ‘‘we know if [Maldonado]

didn’t testify, he’s got one high number, and if he did

testify, he’s got a low number.’’ In light of this factual

record, we agree with the trial court that the petitioner

was able to bring this matter to the attention of the

court and that he was not deprived of an opportunity

to raise this matter on appeal.

The petitioner has not demonstrated that his failure

to raise his claim of prosecutorial impropriety at his

criminal trial or on direct appeal was the result of mistake. The respondents note correctly that the court

‘‘held only that counsel failed to raise the claim earlier,

not that this failure constituted a ‘mistake’ or error,’’

as argued by the petitioner. Our case law does not

equate the failure of a petitioner to raise a claim that

the court found he could have brought at trial or on

direct appeal to a ‘‘mistake’’ warranting a new trial

under § 52-270 (a). See, e.g., Fitzpatrick v. Hall-Brooke

Foundation, Inc., supra, 72 Conn. App. 696–97 (holding

that trial court improperly granted new trial under reasonable cause provision of § 52-270 where petitioner
had opportunity to appeal and did appeal from default

judgment, although in untimely manner).

Indulging every reasonable presumption in favor of

the correctness of the court’s decision; see id., 697; we

conclude that the court did not abuse its discretion in

denying the petitioner’s amended petition for a new

trial. We are not persuaded that the failure of the petitioner’s trial and appellate counsel to raise a claim of

prosecutorial impropriety constituted a ‘‘mistake’’ warranting a new trial. Accordingly, we conclude that this

case does not present a situation in which a litigant has

been deprived of a fair opportunity to have his case

heard on appeal so as to constitute an ‘‘otherreasonable

cause’’ or any other ground entitling him to a new trial

pursuant to § 52–270.

The judgment is affirmed.

In this opinion the other judges concurred.

1 VIN is an abbreviation for ‘‘vehicle identification number.’’

2

In reaching this conclusion, this court also relied on the due process

guarantees of article first, § 9, of the Connecticut constitution. State v.

Stuart, supra, 113 Conn. App. 557.

3 The petitioner filed his petition for a new trial on July 11, 2007, and the

petition was therefore brought within three years of the judgments. See

General Statutes § 52-582 (‘‘[n]o petition for a new trial in any civil or criminal

proceeding shall be brought but within three years next after the rendition

of the judgment or decree complained of’’).

4 We note that the petitioner named as the respondents former Attorney

General Richard Blumenthal and former Commissioner of Correction Theresa C. Lantz.

5 On appeal, the petitioner does not claim that his amended petition for

a new trial improperly was denied on the basis of newly discovered evidence.

6

In his amended petition, the petitioner withdrew counts two, three, four,

and five, and he added a sixth count.

7 Given the nature of his claim, the petitioner could have raised it on

direct appeal without satisfying the specific requirements of State v. Golding,

213 Conn. 233, 239–40, 567 A.2d 823 (1989). Our Supreme Court has noted

that ‘‘the touchstone for appellate review of claims of prosecutorial [impropriety] is a determination of whether the defendant was deprived of his

right to a fair trial, and this determination must involve the application of

the factors set out by this court in State v. Williams, 204 Conn. 523, 540,

529 A.2d 653 (1987).’’ State v. Stevenson, 269 Conn. 563, 573, 849 A.2d

626 (2004).

8 The court’s instructions at the criminal trial expressly informed the jurors

that ‘‘[i]n weighing the testimony of an accomplice who has not yet been

sentenced or whose case has not yet been disposed, you should keep in

mind that he may, in his own mind, be looking for some favorable treatment

in the sentence or imposition of his own case.’’ The court also instructed

the jurors to look at accomplice testimony with ‘‘particular care’’ and ‘‘scrutinize it very carefully before [accepting] it.’’ Further, the court reminded the

jury that Maldonado had a criminal record, and there was evidence that he

had made prior inconsistent statements to an investigator, Donald Gates.

9 We note that after the parties filed their briefs in this appeal, but prior

to the time of oral argument, our Supreme Court, in State v. Jordan, 314

Conn. 354, 358, 102 A.3d 1 (2014), held that the prosecutor’s failure to correct

the potentially misleading testimony of two witnesses denying that they

were promised benefits by the state in exchange for their testimony against

the defendant in that case did not violate his due process right to a fair

trial. In Jordan, the court reasoned that where a prosecutor obtains a

conviction with evidence that he or she knows or should know to be false,

the materiality standard is significantly more favorable to the defendant,

and ‘‘reversal [of the defendant’s conviction] is virtually automatic . . .

unless the state’s case is so overwhelming that there is no reasonable likelihood that the false testimony could have affected the judgment of the

jury.’’ (Emphasis omitted; internal quotation marks omitted.) Id., 370–71.

Ultimately, ‘‘the state’s case [in Jordan] did not depend on the testimony
of [the two witnesses] because the state presented overwhelming evidence

independent of that testimony connecting the defendant to the crime.’’

Id., 372–73.

In the present case, the petitioner’s reliance on Jordan is undermined by

several factors. First, Jordan did not involve a petition for a new trial under

§ 52-270 but, rather, was a direct appeal from a criminal conviction. Second,

the defendant in Jordan raised a claim of prosecutorial impropriety on

direct appeal, whereas the petitioner in the present case did not. See id.,

357–58, 364–65. Third, as the respondents noted correctly at oral argument,

the Jordan rule is implicated by ‘‘the [state’s] knowing use of perjured

testimony’’ to obtain a conviction, and the court here never made a factual

finding that Maldonado perjured himself. Id., 370.