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FRANCIS ANDERSON v. COMMISSIONER

OF CORRECTION

(AC 35846)

Sheldon, Keller and Mullins, Js.

Argued April 16—officially released July 21, 2015

(Appeal from Superior Court, judicial district of

Tolland, Kwak, J.)

James P. Sexton, assigned counsel, with whom was

Michael S. Taylor, assigned counsel, for the appellant (petitioner).

Mitchell S. Brody, senior assistant state’s attorney,

with whom, on the brief, were Matthew Gedansky,

state’s attorney, and Andrew Reed Durham, assistant

state’s attorney, for the appellee (respondent).
Opinion

KELLER, J. The petitioner, FrancisAnderson, appeals

following the habeas court’s denial of his petition for

certification to appeal from the judgment dismissing

with prejudice his amended petition for a writ of habeas

corpus. The petitioner claims that the court erred by

denying his petition for certification to appeal and dismissing his amended petition with prejudice because

(1) an order that the petitioner had violated, which

precipitated the court’s dismissal of his amended petition with prejudice, was not reasonably clear; (2) the

court’s dismissal of his amended petition with prejudice

was not proportionate to the petitioner’s violation of

the order; and (3) the court committed plain error by

failing to comply with Practice Book § 23-40 and General Statutes § 52-470. We agree with the petitioner’s

second claim and reverse the judgment of the court.1

The following facts and procedural history are relevant here. On March 3, 2011, the petitioner pleaded

guilty to two counts of assaulting a peace officer in

violation of General Statutes § 53a-167c.2 The trial court,

Hon. Terence A. Sullivan, judge trial referee, sentenced

the petitioner to a total effective sentence of five years

incarceration, to be served consecutively to any previous sentence he was serving.

On February 19, 2013, the petitionerfiled an amended

petition for a writ of habeas corpus.3 On June 3, 2013,

prior to the evidentiary portion of the petitioner’s

habeas trial, the habeas court, Kwak, J., asked whether

the parties wished to discuss any preliminary matters.

The following exchange occurred on the record:

‘‘[The Petitioner’s Counsel]: Your Honor, another preliminary matter. My client is handcuffed and, absent

any objection from the transporting correction officers,

I’d ask that the—

‘‘The Court: That’s fine with me as long as the correction officers and the marshals are okay with removing

the handcuffs. But, it’s up to them.

‘‘The Correction Officer: I have an issue with him

being—him not being handcuffed.

‘‘The Court: Okay.

‘‘The Correction Officer: He’s assaulted staff on a

number of occasions, so I have an issue with that.

‘‘The Court: All right, that’s fine. I’m sorry, counsel,

but that’s—

‘‘[The Petitioner’s Counsel]: That’s—

‘‘The Court: Security is up to the marshals and the—

‘‘The Petitioner: Excuse me. I got a problem with

this officer.

‘‘The Court: Sir—
‘‘The Petitioner: I’m gonna leave. Come on. Let’s go

back to the facility.

‘‘The Court: Sir, this is your petition. If you leave

now, it’s going to get dismissed with prejudice. Do you

understand? All right. [Petitioner’s counsel], I’m sorry,

but your client just, for the record, left the courtroom.

I advised him that, if he left today, this was his habeas

trial and that it would be dismissed with prejudice and

he disregarded my warning and left the courtroom. Anything to add, [petitioner’s counsel]? . . .

‘‘[The Petitioner’s Counsel]: I would ask Your Honor

to consider based on [the petitioner’s] history—and part

of the history is a conduct disorder, explosive temper

issues—that Your Honor consider a dismissal without

prejudice as opposed to with prejudice.

‘‘The Court: Okay. Well, this is—I’m going to take his

action as a deliberate bypass of his trial today, which

was scheduled, and obviously the state has expended

a lot of time and effort to bring him here as well as the

counsel and the witnesses that were supposed to be

called today. So, therefore, I’m going to deny your

motion and dismiss his—his [amended] petition with

prejudice.’’

On June 11, 2013, the petitioner filed a petition for

certification to appeal, which the court denied on June

17, 2013. Subsequently, he filed the present appeal on

July 5, 2013.

On November 26, 2013, the petitioner filed a motion

for articulation, wherein he alleged that the habeas

court had failed to provide sufficient facts and legal

analysis upon which to base its dismissal of his

amended petition with prejudice. Specifically, among

other requests, he asked the court to: (1) articulate

the legal authority it relied on to dismiss his amended

petition with prejudice; (2) articulate the specific factual findings it relied on to dismiss his amended petition

with prejudice; (3) address a number of specific inquiries, including whether he had received prior notice that

actions delaying the habeas trial would result in a dismissal of his amended petition with prejudice and

whether it had provided him with its full verbal warning

before he left the courtroom; and (4) address why his

alleged psychological impairments did not support a

dismissal of his amended petition without prejudice.

The court granted the petitioner’s motion for articulation. The court began by explaining that it relied on

Practice Book §§ 14-34 and 23-29 (5)5

to dismiss the

petitioner’s amended petition with prejudice on the

basis of his failure to prosecute his claims.

In response to the petitioner’s request that it articulate the specific factual findings it relied on to dismiss

his amended petition with prejudice, the court stated:

‘‘The petitioner was aware the matter was on for trial
and was present in the courtroom with assigned counsel

at the onset of trial. Counsel forthe petitionerrequested

that the court permit the removal of the petitioner’s

handcuffs, absent any objection by the correction officers. The court indicated its willingness to have the

handcuffs removed so long as the correction officers

agreed to their removal. One of the correction officers

indicated that the petitioner had assaulted staff on a

number of occasions and opposed the removal of the

handcuffs. The petitioner expressed that he had an issue

with the correction officer who opposed removal of the

handcuffs and then absented himself from the courtroom and proceedings, thereby failing to prosecute the

claims in his habeas corpus petition.’’

Next, in response to the petitioner’s inquiry as to

whether the petitioner had received adequate notice

that dismissal with prejudice would result from any

actions that delayed the habeas proceedings, the court

stated that the petitioner was represented by counsel

and the court’s file contained all of the relevant notices

and orders. Last, the court stated that it had warned

the petitioner before he left the courtroom that it would

dismiss his amended petition with prejudice if he exited

the courtroom. The court provided no articulation in

response to the petitioner’s request for the court to

address why the petitioner’s alleged psychological

impairments did not warrant dismissal of his amended

petition without prejudice.6

On January 21, 2014, the petitioner filed a motion for

further articulation, which the court denied. He subsequently filed a motion for review with this court on

February 20, 2014. This court granted the motion for

review, but denied the relief requested therein. This

appeal followed.

We begin by setting forth the relevant standard of

review. ‘‘In Simms v. Warden, 229 Conn. 178, 187, 640

A.2d 601 (1994), we concluded that . . . § 52-470 (b)

prevents a reviewing court from hearing the merits of

a habeas appeal following the denial of certification to

appeal unless the petitioner establishes that the denial

of certification constituted an abuse of discretion by

the habeas court. In Simms v. Warden, 230 Conn. 608,

615–16, 646A.2d 126 (1994), we incorporated the factors

adopted by the United States Supreme Court in Lozada

v. Deeds, 498 U.S. 430, 431–32, 111 S. Ct. 860, 112 L.

Ed. 2d 956 (1991), as the appropriate standard for

determining whetherthe habeas court abused its discretion in denying certification to appeal. This standard

requires the petitioner to demonstrate that the issues

are debatable among jurists ofreason; that a court could

resolve the issues [in a different manner]; or that the

questions are adequate to deserve encouragement to

proceed further. . . . A petitioner who establishes an

abuse of discretion through one of the factors listed

above must then demonstrate that the judgment of the
habeas court should be reversed on its merits. . . .

In determining whether the habeas court abused its

discretion in denying the petitioner’s request for certification, we necessarily must consider the merits of the

petitioner’s underlying claims to determine whether the

habeas court reasonably determined that the petitioner’s appeal was frivolous.’’ (Internal quotation marks

omitted.) Damato v. Commissioner of Correction, 156

Conn. App. 165, 167, 113 A.3d 449, cert. denied, 317

Conn. 902, 114 A.3d 167 (2015).

The petitioner asserts that the court abused its discretion by denying his petition for certification to appeal,

which requires us to examine the merits of his underlying claims. He contends that the court erred by dismissing his amended petition with prejudice because: (1)

the court’s order demanding that he remain in the courtroom or risk dismissal of his amended petition with

prejudice was not reasonably clear; and (2) the court’s

dismissal of his amended petition with prejudice was

too severe in proportion to his act of leaving the courtroom. Alternatively, he claims that the court committed

plain error by failing to comply with Practice Book § 23-

407 and General Statutes § 52-470.8

The petitioner’s claim that the court’s dismissal of his

amended petition with prejudice constituted an unduly

severe sanction for his act of leaving the courtroom is

dispositive of the present appeal. Specifically, he contends that the court could have imposed other, less

draconian sanctions in response to his act of leaving

the courtroom. According to the petitioner, the court

could have: ordered a brief recess and provided his

counsel with an opportunity to meet with him and discuss the matter; permitted his counsel to proceed with

the trial in his absence;rescheduled the trial and permitted him to be present at trial via an interactive audiovisual device; or, as his counsel had requested, dismissed

his amended petition without prejudice. We conclude

that the court abused its discretion by denying the petitioner’s petition for certification to appeal and, under

the circumstances of this case, by dismissing the petitioner’s amended petition with prejudice because that

sanction was too severe.

‘‘It is well established that a court may . . . under

its inherent power . . . impose sanctions in order to

compel observance of its rules and orders . . . . The

decision to enter sanctions . . . and, if so, what sanction or sanctions to impose, is a matter within the sound

discretion of the trial court. . . . In reviewing a claim

that this discretion has been abused the unquestioned

rule is that great weight is due to the action of the

trial court and every reasonable presumption should

be given in favor of its correctness. . . . [T]he ultimate

issue is whether the court could reasonably conclude

as it did. . . .

‘‘At the same time, however, [our Supreme Court]
also ha[s] stated: [D]iscretion imports something more

than leeway in decision-making. . . . It means a legal

discretion, to be exercised in conformity with the spirit

of the law and in a manner to subserve and not to

impede or defeat the ends of substantial justice. . . .

In addition, the court’s discretion should be exercised

mindful of the policy preference to bring about a trial

on the merits of a dispute whenever possible and to

secure for the litigant his day in court. . . . Our practice does not favor the termination of proceedings without a determination of the merits of the controversy

where that can be brought about with due regard to

necessary rules of procedure. . . . Therefore, although

dismissal of an action is not an abuse of discretion

where a party shows a deliberate, contumacious or

unwarranted disregard for the court’s authority . . .

the court should be reluctant to employ the sanction

of dismissal except as a last resort. . . . [T]he sanction

of dismissal should be imposed only as a last resort,

and where it would be the only reasonable remedy

available to vindicate the legitimate interests of the

other party and the court.’’ (Citations omitted; internal

quotation marks omitted.) D’Ascanio v. Toyota Industries Corp., 309 Conn. 663, 670–72, 72 A.3d 1019 (2013).9

Furthermore, we acknowledge that ‘‘[t]he right to

petition for a writ of habeas corpus is enshrined in

both the United States constitution and the Connecticut

constitution. See U.S. Const., art. I, § 9; Conn. Const.,

art. I, § 12. Indeed, it has been observed that the writ

of habeas corpus holds an honored position in our jurisprudence. . . . The principal purpose of the writ of

habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness. . . . The writ

has been described as a unique and extraordinary legal

remedy. . . . It must never be forgotten that the writ

of habeas corpus is the precious safeguard of personal

liberty and there is no higher duty than to maintain

it unimpaired.’’ (Citations omitted; internal quotation

marks omitted.) Fine v. Commissioner of Correction,

147 Conn. App. 136, 142–43, 81 A.3d 1209 (2013).

Turning to the circumstances of this case, we note the

following. At the outset, the record lacks any evidence

indicating that the petitioner, in leaving the courtroom,

understood the gravity of his act. Although the record

suggests that the petitioner heard the court’s warning

prior to exiting the courtroom, it is unclear whether he

fully understood the consequences of his departure.10

The court did not make any concerted effort to ensure

that he was personally apprised of and understood the

consequences. See id., 148 (respondent failed to make

affirmative showing that court ensured that petitioner

knew of and understood consequences of withdrawing

prior petition with prejudice). The lack of such effort

appears particularly incautious when, due to the petitioner’s incarcerated status, the court still had the ability to attempt to communicate with him, and his counsel
represented to the court that the petitioner had psychological impairments. Furthermore, before the court dismissed the amended petition with prejudice, the

petitioner’s counsel was not provided with an opportunity to meet with the petitioner to discuss his actions

and to explain the meaning of the court’s warning.

Although we do not condone the petitioner’s inappropriate act of leaving the courtroom while the court was

addressing him, we do not conclude that his discourteous and disruptive conduct was particularly egregious

or that he expressed a ‘‘deliberate, contumacious or

unwarranted disregard for the court’s authority’’ on the

basis of the record.11 (Internal quotation marks omitted.) D’Ascanio v. Toyota Industries Corp., supra, 309

Conn. 672; cf. Fox v. First Bank, 198 Conn. 34, 39–40,

501 A.2d 747 (1985) (dismissal did not constitute abuse

of discretion where plaintiff persistently failed to comply with court order without explanation and court

expended considerable judicial resources in attempt to

accommodate plaintiff).

Furthermore, ‘‘[d]ismissal was not the only option

available to vindicate the legitimate interests of the

[respondent] and the court.’’ D’Ascanio v. Toyota

Industries Corp., supra, 309 Conn. 683. At a minimum,

the court could have called a brief recess to provide

the petitioner’s counsel with an opportunity to meet

with the petitioner, advise him in regard to his actions,

explain the court’s warning to him, and potentially convince him to return to the courtroom.12 If the petitioner

remained steadfast in refusing to reenter the courtroom

after his counsel conferred with him and explained

to him the court’s inclination to dismiss his amended

petition with prejudice, the court then could have

inquired into whetherthe petitioner’s counsel was capable of proceeding with the habeas trial in the petitioner’s

absence. See Saunders v. Commissioner of Correction,

157 Conn. App. 257, 263, A.3d (2015) (‘‘the

physical presence of the petitioner is ordinarily not

necessarily required [at his or her habeas trial]’’). Additionally, the court could have considered rescheduling

the trial or further considered the request by the petitioner’s counsel to dismiss the petition without prejudice.13 In summation, this was not a case wherein the

‘‘last resort’’ sanction of dismissal with prejudice was

‘‘the only reasonable remedy available to vindicate the

legitimate interests of the [respondent] and the court.’’

(Internal quotation marks omitted.) D’Ascanio v. Toyota Industries Corp., supra, 309 Conn. 672.

For the foregoing reasons, we conclude that the

habeas court abused its discretion by denying the petitioner’s petition for certification to appeal and by dismissing his amended petition for a writ of habeas corpus

with prejudice.

The judgment is reversed and the case is remanded

for further proceedings in accordance with law.
In this opinion, the other judges concurred.

1 Because we reverse the court’s judgment and remand the matter on the

basis of our conclusion that the court’s dismissal of the petitioner’s amended

petition with prejudice was too severe, we need not reach the petitioner’s

remaining claims.

2 The underlying convictions resulted from events that transpired on September 30, 2009, when the petitioner, while serving a prior sentence,

assaulted two officers from the Department of Correction (correction

officers).

3 The petitioner initially filed a petition for a writ of habeas corpus on

May 19, 2011.

4 Practice Book § 14-3 provides: ‘‘(a) If a party shall fail to prosecute an

action with reasonable diligence, the judicial authority may, after hearing,

on motion by any party to the action pursuant to Section 11-1, or on its

own motion, render a judgment dismissing the action with costs. At least

two weeks’ notice shall be required except in cases appearing on an assignment list for final adjudication. Judgment files shall not be drawn except

where an appeal is taken or where any party so requests.

‘‘(b) If a case appears on a docket management calendar pursuant to the

docket management program administered under the direction of the chief

court administrator, and a motion for default for failure to plead is filed

pursuant to Section 10-18, only those papers which close the pleadings by

joining issues, or raise a special defense, may be filed by any party, unless

the judicial authority otherwise orders.’’

5 Practice Book § 23-29 provides in relevant part: ‘‘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 . . . (5) any

other legally sufficient ground for dismissal of the petition exists.’’

6 The petitioner also requested that the court articulate the following: the

duration of the petitioner’s prior efforts to bypass the habeas proceedings;

whether the respondent, the Commissioner of Correction, would have been

significantly prejudiced had the court rescheduled the habeas proceeding;

whether the court balanced its need to sanction the petitioner for leaving

the courtroom against his right to due process and to be heard; and whether

any less severe sanctions were available for the court to impose, such as

rescheduling the habeas proceeding or permitting the petitioner’s counsel

to speak with him in order to calm him down and return him to the courtroom. The court provided no response to the foregoing inquiries.

7 Practice Book § 23-40 provides: ‘‘(a) The petitioner and, if they are not

the same, the subject of the petition, shall have the right to be present at

any evidentiary hearing and at any hearing or oral argument on a question

of law which may be dispositive of the case, unless the petitioner, or the

subject of the petition, as the case may be, waives such right or is excused

by the judicial authority for good cause shown.Ifthe petitioneris represented

by counsel, the judicial authority may, but is not required to, permit the

petitioner to be present at any other proceeding.

‘‘(b) Notwithstanding any other provision of these rules, in a petition

arising from a claim regarding conditions of confinement the physical

appearance in court of the petitioner or the subject of the petition may, in

the discretion of the judicial authority, be made by means of an interactive

audiovisual device. Such audiovisual device must operate so that the petitioner, or the subject of the petition, his or her attorney, if any, and the

judicial authority can see and communicate with each other simultaneously.

In addition, a procedure by which the petitioner and his or her attorney

can confer in private must be provided.’’

8 General Statutes § 52-470 provides in relevant part: ‘‘(a) The court or

judge hearing any habeas corpus shall proceed in a summary way to determine the facts and issues of the case, by hearing the testimony and arguments

in the case, and shall inquire fully into the cause of imprisonment and

thereupon dispose of the case as law and justice require.’’

9 The petitioner argues that we should apply the standard promulgated

by our Supreme Court in Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 776 A.2d 1115 (2001) (Millbrook), to review the propriety

of the court’s dismissal of his amended petition with prejudice. We disagree.

In Millbrook, our Supreme Court stated: ‘‘[W]e conclude that the broad

abuse of discretion standard that we have been employing for the imposition

of sanctions for violation of discovery orders, and for our appellate review

thereof, is inaccurate . . . . In order for a trial court’s order of sanctions

for violation of a discovery order to withstand scrutiny, three requirements

must be met.’’ (Emphasis added.) Id., 17. The foregoing language unequivo-
cally narrows the applicability of the Millbrook standard, which has been

utilized almost exclusively for the purpose of reviewing the propriety of

sanctions imposed by a court in response to discovery violations. See, e.g.,

Yeager v. Alvarez, 302 Conn. 772, 784, 31 A.3d 794 (2011); Wyszomierski

v. Siracusa, 290 Conn. 225, 235, 963 A.2d 943 (2009). This court also has

applied the Millbrook standard in cases wherein trial courts have imposed

sanctions as a result of a party’s failure to properly file a certificate of closed

pleadings. See Bongiovanni v. Saxon, 99 Conn. App. 221, 226–27, 913 A.2d

471 (2007); McHenry v. Nusbaum, 79 Conn. App. 343, 351–53, 830 A.2d 333,

cert. denied, 266 Conn. 922, 923, 835 A.2d 472, 473 (2003); Burton v. Dimyan,

68 Conn. App. 844, 846, 793 A.2d 1157, cert. denied, 260 Conn. 925, 797 A.2d

520 (2002). With the narrow applicability of the Millbrook standard in mind,

we conclude that the general abuse of discretion standard, rather than the

Millbrook standard, is the proper standard to employ in our examination

of the habeas court’s imposition of the sanction of dismissal with prejudice

in this case.

10 We note that the meaning of the phrase ‘‘with prejudice’’ may be unclear

to a lay petitioner who has not had the opportunity to speak with his or

her counsel. See Taylor v. Commissioner of Correction, 125 Conn. App.

624, 631, 11 A.3d 160 (2010) (Beach, J., concurring and dissenting) (noting

that habeas court’s use of phrase ‘‘with prejudice’’ may be ambiguous), cert.

denied, 300 Conn. 908, 12 A.3d 1005 (2011).

11 In fact, the petitioner stated that he had an issue with one of the correction officers accompanying him to the courtroom. He did not express any

animosity toward Judge Kwak or anyone else associated with the court.

12 Although not precisely analogous to the present case, we note that the

procedural history detailed in a number of our prior cases indicates that

some judges in habeas matters have provided the petitioners’ counsel with

opportunities to contact petitioners who have failed to appear at habeas

proceedings. See Lewis v. Commissioner of Correction, 121 Conn. App.

693, 695, 996 A.2d 1214 (2010) (noting that court called brief recess to permit

petitioner’s counsel to attempt to contact petitioner, who failed to appear

at habeas trial), appeal dismissed, 304 Conn. 315, 39 A.3d 1104 (2012) (certification improvidently granted); Moye v. Commissioner of Correction, 110

Conn. App. 134, 136–37, 954 A.2d 240 (2008) (noting that court provided

petitioner’s counsel with one week to contact petitioner, who had failed to

appear at habeas hearing, before considering respondent’s motion to

dismiss).

13 We note that the respondent would not have been unduly prejudiced

had the court selected any of those options. The record indicates that the

respondent did not intend to call any witnesses to testify or to introduce

any exhibits. Although we recognize that any delay in the habeas trial would

have inconvenienced the respondent, whose attorney was present and prepared to proceed with the trial on June 3, 2013, we do not conclude that

the respondent would have suffered undue prejudice had the court selected

any option other than dismissing the petitioner’s amended petition with

prejudice.

In addition, although we recognize that the court also would have been

inconvenienced by any delay in the habeas trial, we note the competing

inefficiency and waste of scarce public resources that result when a court

fails to make a concerted effort to move a case forward on the day on which

it is scheduled.