In re A.B.

Full title: In re A.B.

Court: Superior Court of Connecticut

Date published: Nov 29, 2019

AANCR180157961T (Conn. Super. Ct. Nov. 29, 2019)

Opinion

AANCR180157961T

11-29-2019

In re A.B.

Wilkerson Brillant, J.

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh):Wilkerson Brillant, Donna M., J.

MEMORANDUM OF DECISION ON STATE’S MOTION FOR REARGUMENT

Wilkerson Brillant, J.

The state filed a motion to reargue the court’s decision, filed on July 2, 2019, granting the defendant’s motion to dismiss the state’s information because the prosecution was untimely. The court granted the state’s motion for reargument on July 31, 2019 in light of our Appellate Court’s decision in Roger B. v. Commissioner of Correction, 190 Conn.App. 817, 212 A.3d 693, cert. denied, 333 Conn. 929 (2019). The court finds that it has jurisdiction over a motion to reargue, but that the court should still grant the defendant’s motion to dismiss.

FACTUAL AND PROCEDURAL BACKGROUND

On December 22, 2009, officers from the Ansonia Police Department seized the defendant’s computers, storage media, and a router pursuant to a search warrant of his residence. During the search and seizure, the defendant was aware that child pornography was the subject of the warrant. The defendant voluntarily signed a sworn statement in which he admitted to possessing child pornography and was fully cooperative with the police including providing them with passwords to his computers. On August 30, 2011, almost two years after the defendant’s admission, he moved to California, where he lived and worked openly under his own name, and possessed the same cell phone number he had while living in Connecticut. On April 15, 2013, the forensic lab returned a report confirming the presence of child pornography on his computer, and an arrest warrant was issued on May 22, 2013. The lead detective, Detective Tenney, found the defendant’s California address through the Lexis-Nexis law enforcement portal, and confirmed with the local California police department that the defendant still resided at that same address. Tenney requested extradition authorization, but it was denied. Tenney retired in September 2016. In 2018, the clerk of the Superior Court in Milford contacted the Ansonia Police Department to inquire about the status of the evidence and the arrest warrant. At that point, Lieutenant Williams of the Ansonia Police Department received authorization for extradition. The defendant was arrested in California on March 15, 2018, and returned to Connecticut voluntarily.

The defendant filed a motion to dismiss arguing that prosecution was barred because the execution of the arrest warrant was unreasonably delayed pursuant to General Statutes § 54-193(h) which provides: "No person may be prosecuted for any offense, other than an offense set forth in subsection (a) of this section for which the punishment is or may be imprisonment in excess of one year, except within five years next after the offense has been committed." The defendant argued that pursuant to the unreasonable delay, continued prosecution violated his right to due process.

The defendant relied on our Supreme Court’s decision in State v. Crawford, 202 Conn. 443, 521 A.2d 1034 (1987) (Crawford), and posited it as the proper framework to analyze the motion to dismiss. In Crawford, an arrest warrant, although issued within the statute of limitations period was not executed until after the limitation period had run. See id., 445. The state claimed that the prosecution was not time barred because it commenced when the arrest warrant was issued, not when it was executed. See id., 447. The defendant claimed, however, that the prosecution was time barred because it commenced when the arrest warrant was executed. See id. Our Supreme Court observed that the general rule is that the issuance of an arrest warrant commences a prosecution and satisfies the statute of limitations. See id., 448. The court, however, recognized that "in order to prevent the disadvantages to an accused attending stale prosecutions" there had to be some time limitation on the period during which the arrest warrant could be executed. Id., 450. Adopting the approach of the Model Penal Code, the court held: "[I]n order to [satisfy] the statute of limitations, an arrest warrant, when issued within the time limitations of § 54-193(b), must be executed without unreasonable delay ... We do not adopt a per se approach as to what period of time to execute an arrest warrant is reasonable. A reasonable period of time is a question of fact that will depend on the circumstances of each case. If the facts indicate that an accused consciously eluded the authorities, or for other reasons was difficult to apprehend, these factors will be considered in determining what time is reasonable. If, on the other hand, the accused did not relocate or take evasive action to avoid apprehension, failure to execute an arrest warrant for even a short period of time might be unreasonable and fail to [satisfy] the statute of limitations." (Citation omitted; emphasis omitted; footnote omitted.) Id., 450-51. Moreover, the court concluded that the "timely issuance of the arrest warrant [satisfied] the statute of limitations in the absence of an evidentiary showing of unreasonable delay in its service upon the defendant." Id., 452. The court also addressed § 54-193(c), now § 54-193(d), and held that this subsection "which tolls the statute as to a person who has fled from and resides outside the state after the commission of the offense, simply extends the time within which an indictment, information or complaint may be brought." (Internal quotation marks omitted.) Id., 450 n.12.

In response, the state argued that the defendant did not meet his burden in proving that he was available for arrest as that term had been applied during the five-year statute of limitations period. In the alternative, the state argued that the statute of limitations period should have been tolled because the defendant fled from Connecticut when he moved to California. The state further argued that the applicable standard of review was set forth in § 54-193(d), which provides: "If the person against whom an indictment, information or complaint for any of said uses is brought has fled from and resided out of this state during the period so limited it may be brought against such a person at any time within such period, during which such resides in this state, after the commission of the offense."

The state relied on our Supreme Court’s decision in State v. Ward, 306 Conn. 698, 52 A.3d 591 (2012) (Ward). In Ward, the defendant committed a crime in Connecticut and immediately fled to his home state of Massachusetts. See id., 704. The police had no knowledge of the defendant’s identity. See id. As a result, the arrest warrant was not issued until the police became aware of the defendant’s identity which was long after the statute of limitations had expired. See id., 704-05. When the defendant challenged his prosecution as untimely, our Supreme Court analyzed whether the defendant fled in order to determine whether the statute of limitations tolled pursuant to § 54-193(c), now § 54-193(d). See id., 707. The court held that "§ 54-193(c) [now § 54-193(d)] may toll the statute of limitations when a defendant absents himself from the jurisdiction with reason to believe an investigation may ensue as the result of his actions. Certainly, the defendant herein, as a result of his conduct in the victim’s home, had reason to believe that an investigation would ensue." See id., 711. Therefore, the court held that the trial court had properly denied the defendant’s motion to dismiss because the state had shown probable cause that the statute had been tolled. Id., 714-15.

Applying Ward to the present case, the state argued that under § 54-193(d), the period of limitations could not expire as long as the defendant, who had fled the state, remained in California. As such, because the period of limitations cannot expire, the defendant could not prevail on a statute of limitations defense.

The court’s decision, on July 2, 2019, coincided with our Appellate Court’s decision, on June 25, 2019, in Roger B. v. Commissioner of Correction, 190 Conn.App. 817, 212 A.3d 693, cert. denied, 333 Conn. 929 (2019) (Roger B. II). Prior to the court’s decision, the defendant filed a supplementary authority on June 25, 2019, in which he argued that Roger B. II compelled the court to grant the defendant’s motion. The state had not responded before the court’s issuance of its memorandum of decision on July 2, 2019. The court did not cite to nor rely on our Appellate Court’s decision in Roger B. II. The court’s decision held that the statute of limitations period was not tolled and as such, the defendant’s motion to dismiss was granted. The court concluded that unlike in Ward, the warrant or information in the present case was issued within the statute of limitations. Therefore, the court analyzed the defendant’s motion to dismiss under the burden shifting framework found in Crawford. Applying the burden shifting framework, the court first determined that the defendant met his burden of putting forth evidence that he was not elusive, was available, and was readily approachable for the burden to then shift to the state to prove that the delay in executing the warrant was not unreasonable. The court then determined that the delay in executing the arrest was unreasonable in light of the totality of the circumstances, including that the state knew the California address of the defendant, the police requested an extraditable warrant in 2013, but did not actually obtain one until 2018, and that the state provided no evidence to explain why its failure to serve the arrest warrant was reasonable.

On July 12, 2019, pursuant to Practice Book § 63-1(c)(1), the state filed a motion to reargue to address the significance of § 54-193(d) and Ward, in light of the recent decision in Roger B. II. The state’s motion challenges the court’s decision to analyze the case under Crawford and not § 54-193(d) and Ward. The state does not seek to reargue the court’s analysis under the Crawford framework, but rather the use of the framework itself. As for our Appellate Court’s recent decision in Roger B. II, where the court applied the Crawford standard to a factually similar circumstance to that in the present case, the state argues that it is not binding authority, it stands at odds with Supreme Court precedent, and it would produce an absurd and unworkable result. On July 22, 2019, the defendant filed an objection to the state’s motion to reargue on the grounds that reargument is not available in the present case. As to the merits of the state’s motion, the defendant argues that Roger B. is binding precedent, which this court cannot, as a matter of law, decline to follow; is not in conflict with Supreme Court precedent; and does not produce an absurd and unworkable result. After granting the state’s motion to reargue, the court held oral argument on the matter on August 26, 2019. At oral argument, the court heard argument from both parties regarding whether the court should analyze the cause under § 54-193(d) and Ward. and not Crawford, and if so, determine whether the defendant "fled" as the term is defined in § 54-193(d).

DISCUSSION

I

Before reaching the merits of the state’s motion to reargue the court must first determine whether it retains jurisdiction to hear motions to reargue when a criminal matter has been dismissed. The defendant argues that the sole authority on which the state relies in requesting reargument, Practice Book § 63-1(c)(1),¹ merely addresses the effects of reconsideration on deadlines to appeal and does not provide the state with a right to file a motion to reargue after dismissal of a criminal proceeding. The defendant argues further that Connecticut courts have long recognized that a criminal court’s jurisdiction ends upon the sentencing of a defendant, and as such, the court’s jurisdiction also ends when a trial court dismisses a criminal proceeding. Based on the following discussion, the court concludes that it does in fact still have jurisdiction over the present case.

1 Practice Book § 63-1(c)(1) provides:

In State v. Brown, 8 Conn.App. 248, 249, 512 A.2d 965 (1986), our Appellate Court reviewed the defendant’s appeal of the judgment rendered on the jury’s guilty verdict. The defendant claimed that the trial court erred: (1) in entertaining the state’s motion to rehear the defendant’s motion to dismiss, and subsequently, vacating its earlier dismissal of the charges against the defendant; and (2) in denying the defendant’s motion in arrest of judgment. The defendant was arrested for selling narcotics and the fraudulent sale of a noncontrolled substance. See State v. Brown, supra, 8 Conn.App. 249. Prior to trial, defense counsel filed a motion for disclosure, discovery, and a bill of particulars. See id. The motions were later marked off the court calendar and the case was put on the trial list. See id. The defendant then filed a motion to compel the state to respond to the motion for disclosure, discovery, and a bill of particulars. See Id . After the state failed to deliver the materials sought by the defendant, the trial court granted the defendant’s oral motion to dismiss on the ground that "the delay and the dilatory tactics of the state in this case caused an unreasonable prejudice to the defendant in preparation of his case." (Internal quotation marks omitted.) Id., 250. The trial court did not indicate whether the dismissal was with or without prejudice as was previously required by the now repealed Practice Book § 819.² See id.

2 Practice Book § 819 provided: "If the judicial authority grants a motion to dismiss, he shall specify whether the dismissal is with or without prejudice. If the dismissal is with prejudice, the defendant shall be released, and the prosecuting authority may, where he is entitled by law, appeal the dismissal in the same manner and to the same effect as appeals from final judgments in criminal prosecutions. If the dismissal is without prejudice, the defendant shall be released, but the dismissal shall not be a bar to further prosecution for the same offense or offenses."

After the court’s ruling dismissing the case, the state filed answers to the defendant’s motion and also filed a motion for a rehearing on the motion to dismiss. See State v. Brown, supra, 8 Conn.App. 250. The trial court, after hearing argument, vacated its earlier decision and denied the defendant’s motion to dismiss. See id. In denying the defendant’s motion to dismiss "the court stated that it was unaware that the motions for discovery and a bill of particulars had been marked off the calendar and, instead, had acted upon the mistaken representation of defense counsel that those motions had been granted and that the state had failed to comply." Id. Thus, the trial court concluded that there was "no basis in the record for dismissing the case against the defendant." Id.

After the defendant was tried and convicted, the defendant filed a motion in arrest of judgment, pursuant to Practice Book § 905 (now Practice Book § 42-56), claiming that the trial court did not have jurisdiction over the offense charged. See State v. Brown, supra, 8 Conn.App. 250-51. The motion was denied by the trial court and the defendant appealed. See id., 251.

On appeal, our Appellate Court agreed with the trial court that it had originally "dismissed the charges against the defendant based upon an erroneous assumption concerning his motions for discovery and for a bill of particulars." State v. Brown, supra, 8 Conn.App. 251. The court concluded that the trial court acted properly in granting the motion to rehear and that the trial court had maintained jurisdiction over the case, and it cited 22 C.J.S. 423-34, Criminal Law § 165, for the proposition that: "[W]hen a court has acquired jurisdiction, no subsequent error or irregularity will oust the jurisdiction thus acquired. It does not lose jurisdiction because it makes a mistake in determining either the facts or the law, or both, in the case before it." (Emphasis added; internal quotation marks omitted.) Id., 251. The court concluded that the state was entitled to make such a motion, and the court was authorized to entertain it under Practice Book § 809 (now Practice Book § 41-3), which the court noted "authorizes a trial court, for good cause, to entertain pretrial motions such as the motion for a rehearing filed in this case by the state." Id., 252 n.4. The court further concluded that under the circumstances, "the trial court retained jurisdiction in order to reconsider a decision based upon an erroneous assumption. It did not err in entertaining and granting the motion to rehear its earlier decision on the motion to dismiss." Id.

Our Appellate Court then addressed the defendant’s related claim that he was "released" once the motion to dismiss was granted. See State v. Brown, supra, 8 Conn.App. 252. The court’s discussion of this argument largely centered around the since repealed Practice Book § 819. See id. The court noted that the trial court did not specify whether the dismissal was with prejudice or without prejudice, but noted that either way the defendant would not be discharged from the trial court’s jurisdiction: "If the trial court’s dismissal was with prejudice, the state would have had an opportunity to appeal the decision. Although Practice Book § 819 indicates that the defendant shall be released when the dismissal is with prejudice, the defendant would not have been discharged from the trial court’s jurisdiction ... If the dismissal was without prejudice, it would not have barred further prosecution for the same offenses." (Citations omitted.) Id. ³

3 In addition to State v. Brown, supra, 8 Conn.App. 248, Connecticut’s appellate courts have discussed instances in which trial courts have granted motions to reargue and/or reconsider motions to dismiss without questioning the legal sufficiency of the court’s decision. See State v. Manware, 112 Conn.App. 474, 476, 963 A.2d 1012 (2009) (discussing trial court’s grant of the state’s motion to reargue the defendant’s previously granted motion to dismiss); see also State v. Sebastian, 243 Conn. 115, 120, 701 A.2d 13 (1997) (discussing trial court’s grant of the defendant’s motion to reargue his previously denied motion to dismiss); State v. Davis, 180 Conn.App. 799, 811, 185 A.3d 654 (2018) (same); State v. Bjorklund, 79 Conn.App. 535, 558-59, 830 A.2d 1141 (2003) (discussing trial court’s grant of the defendant’s motion to reconsider the denial of his motion to dismiss), cert. denied, 268 Conn . 920, 846 A.2d 882 (2004).

Based on the foregoing precedent, in the present case, the court does not lose jurisdiction if an irregularity has occurred. See State v. Brown, supra, 8 Conn.App. 251. The court recognizes that at the same time it was deciding the motion to dismiss, the Appellate Court decided Roger B. II only a few days prior to the court’s decision on the motion to dismiss. The present matter and Roger B. II have the exact same issues with regard to the statute of limitation period and therefore, in light of these circumstances which constitute good cause, the court retains jurisdiction to hear the state’s motion for reargument. As such, the court will proceed to the merits of the state’s motion to determine whether it applied the appropriate standard of law in light of our Appellate Court’s decision in Roger B. II.

II

Returning to the merits of the state’s motion, the court must review our Appellate Court’s decision in Roger B. II, to determine whether it is binding authority.

In Roger B. II, supra, 190 Conn. 819-20, our Appellate Court was confronted with an appeal from the denial of the second amended petition for a writ of habeas corpus filed by the petitioner, Roger B. In the second amended petition, the petitioner argued that he was denied the effective assistance of counsel at his criminal trial because his trial counsel failed to assert a statute of limitations affirmative defense to the criminal charges against him. In July 2000, allegations of sexual abuse against the petitioner arose in response to interviews conducted by the Department of Children and Families personnel. See id., 823. On August 31, 2000, the petitioner gave a statement to police and permission to search his apartment and storage unit. See id. The petitioner left Connecticut approximately five months after he gave the statement to police. See id. The police completed their investigation in 2000 and discovered no additional evidence between 2000 and 2005. See id. On July 6, 2005, the police obtained a warrant to arrest the petitioner. See id. When the petitioner left Connecticut, he moved to Indiana, where he had several addresses, including a post office box. See id., 823-24. The petitioner then moved to Alabama where United States marshals found him in November 2006. See id., 824. The state’s attorney then authorized the petitioner’s extradition from Alabama, and the police executed the arrest warrant on January 24, 2007. See id. The petitioner was charged in a substitute information with offenses that occurred on various dates between October 1, 1995, and February 1, 2000. See id. The defendant was found guilty on six counts and his conviction was affirmed on direct appeal. See id.

The petitioner filed an amended writ of habeas corpus on August 25, 2011, alleging that his trial counsel had rendered ineffective assistance by failing to assert a statute of limitations affirmative defense challenging the eighteen-month delay in executing the arrest as unreasonable under Crawford. See Roger B. II, supra, 190 Conn.App. 824-25. The habeas court rejected that claim. See id. The petitioner filed his first habeas appeal, claiming that the habeas court improperly concluded that his trial counsel had not rendered ineffective assistance because the habeas court "failed to address the postwarrant delay [in executing the warrant], finding only that [trial counsel] reasonably calculated that the warrant had been issued within the period of limitation." (Internal quotation marks omitted.) Id., 825-26. The petitioner argued that his trial counsel’s "failure to assert a statute of limitations affirmative defense constituted ineffective assistance pursuant to [Crawford] and State v. Ali, 223 Conn. 403, 660 A.2d 337 (1995) ... Moreover, he contended that the issuance of the warrant for his arrest did not satisfy the statute of limitations because the warrant was not executed without unreasonable delay ... [Because] [a]lthough the warrant had been issued on July 6, 2005, it was not executed until January 24, 2007." (Citations omitted.) Roger B. II, supra, 190 Conn.App. 826.

Our Appellate Court’s first review of the petitioner’s claim came in Roger B. v. Commissioner of Correction, 157 Conn.App. 265, 278, 116 A.3d 343 (2015) (Roger B. I), wherein the court found that the habeas court had improperly analyzed the petitioner’s claim under § 54-193(c) (now § 54-193[d] ), because it failed to consider whether the delay in serving the warrant after it was issued was unreasonable. "[Our Appellate Court] stated that a proper resolution of the petitioner’s claim under [Crawford] and [Ali] required the habeas court to consider whether there was a reasonable probability that the petitioner would have succeeded on a statute of limitations affirmative defense that was based on unreasonable delay in executing the warrant. Such analysis would include considering whether the petitioner had [put] forth evidence to suggest that [he] was not elusive, was available and was readily approachable, such that the burden [would have] shift[ed] to the state to prove that the delay in executing the warrant was not unreasonable. State v. Woodtke, [130 Conn.App. 734, 740, 25 A.3d 699 (2011)]; see Gonzalez v. Commissioner of Correction, [ 122 Conn.App. 271, 286 and n.6, 999 A.2d 781, cert. denied, 298 Conn. 913, 4 A.3d 831 (2010)] ..." (Emphasis omitted; internal quotation marks on-lined.) Roger B. II, supra, 190 Conn.App. 827.

"In addition, [our Appellate Court] concluded that the record was inadequate to review the alternative ground proffered by the respondent, the Commissioner of Correction, to affirm the habeas court’s judgment, which was that trial counsel was not ineffective in failing to challenge the eighteen-month delay in the service of the warrant because [the] petitioner’s decision to flee the state tolled the statute of limitations, pursuant to § 54-193(d) and State v. [Ward] ..." (Internal quotation marks omitted.) Roger B. II, supra, 190 Conn.App. 827-28.

The second habeas court held a hearing receiving evidence solely on the claim that the trial counsel had rendered ineffective assistance by failing to pursue a statute of limitations affirmative defense to the criminal charges against the petitioner, Roger B. II, supra, 190 Conn.App. 828. The habeas court then issued a memorandum of decision denying the petitioner’s amended petition holding that the petitioner had fled the state as that term was defined in Ward. See id., 829. The court further held that because the statute of limitations had been tolled, the period of limitation had not expired when the warrant was executed. See id. Thus, both the issuance and the execution of the warrant fell within the period of limitation, eliminating any question of unreasonable delay under Crawford. See id. The court later issued an articulation, finding that the petitioner knew of the sexual misconduct complaints against him when he left Connecticut and that he was elusive, unavailable, and unapproachable by Connecticut law enforcement, except through extradition. See id., 830. In addition, the court found that the petitioner failed to demonstrate that a reasonable likelihood existed that the state would have been unable to show that the police acted reasonably and did not generate unjustifiable delay in executing the warrant. See id.

Our Appellate Court’s second review, in Roger B. II, first evaluated the petitioner’s claim that the second habeas court wrongly concluded that § 54-193(d) and Ward, not Crawford, governed the resolution of his claim that his trial counsel rendered ineffective assistance by failing to raise a statute of limitations affirmative defense with respect to the eighteen-month delay between the issuance and the execution of the arrest warrant. See Roger B. II, supra, 190 Conn.App. 834. The court returned to its earlier decision in Roger B. II, supra, 147 Conn.App. 273, and the principle that "[a] statute of limitations affirmative defense on the basis of unreasonable delay in execution of the warrant is properly considered according to the framework set forth in [Crawford] and articulated in subsequent appellate decisions." (Internal quotation marks omitted.) Roger B. II, supra, 835. The court then reviewed the second habeas court’s conclusion and the respondent’s argument that on the basis of footnote eight⁴ in Crawford, that controlling precedent does not require the application of Crawford to the petitioner’s claim. See Roger B. II, supra, 837. The court stated that notwithstanding the footnote, the court in Crawford summarized the proper application of § 54-193(d) as follows: "[Section 54-193[ (d) ] which tolls the statute as to the person who has fled from and resides outside the state after the commission of the offense, simply extends the time within which an indictment, information or complaint may be brought." (Emphasis in original; internal quotation marks omitted.) Roger B. II, supra, 837, citing Crawford, supra, 202 Conn. 450 n.12.

4 The second habeas court held that: "In footnote 8 [of its opinion, the court in [Crawford] explicitly stated that its decision avoided any consideration of tolling under § 54-193[ (d) ] because the [state] failed to raise that question in that case ... Thus, the Crawford court holding only applies to situations where no tolling under § 54-193[ (d) ] comes into play to bring the service of the arrest warrant within the five year [limitation period] such that the warrant cannot be deemed stale." Roger B. II, supra, 190 Conn.App. 834.

Our Appellate Court then turned to State v. Ali, supra, 223 Conn. 412, "In [Ali ] ... our Supreme Court held that defendant’s departure from the state was not dispositive of his unreasonable delay claim because the outcome [was] controlled by [Crawford]. Our Supreme Court explicitly rejected the state’s argument that by leaving the jurisdiction immediately after the ... incident, the defendant intended to evade the authorities and ... the statute of limitations was satisfied." Roger B. II, supra, 190 Conn.App. 837. The court also noted that "Connecticut courts consistently have applied this framework to claims of unreasonable delay in the execution of an arrest warrant issued within the limitation period, regardless of whether a defendant has relocated out of the state. See State v. Figueroa, 235 Conn. 145, 177-78, 665 A.2d 63 (1995); see also State v. Derks, [ 155 Conn.App. 87, 93-95, 108 A.3d 1157, cert. denied, 315 Conn. 930, 110 A.3d 432 (2015)]; Axel D. v. Commissioner of Correction, 135 Conn.App. 428, 434-36, 41 A.3d 1196 (2012); Gonzalez v. Commissioner of Correction, [ 122 Conn.App. 271, 999 A.2d 781, cert. denied, 298 Conn. 913, 4 A.3d 831 (2010)]; Thompson v. Commissioner of Correction, 91 Conn.App. 205, 210-12, 880 A.2d 965 (2005), appeal dismissed, 280 Conn. 509, 909 A.2d 946 (2006)." Roger B. II, supra, 837-38.

The court held that based upon the fact that information was filed within the five-year limitation period, when the judicial authority signed the petitioner’s arrest warrant on July 6, 2005, "§ 54-193(d) became irrelevant." Roger B. II, supra, 190 Conn.App. 838. Thus, the only question that remained was whether the warrant was executed without unreasonable delay pursuant to Crawford . See id. As such, the court rejected the second habeas court’s conclusion that the statute extended the time in which the warrant could be served, and therefore, concluded that the second habeas court incorrectly determined that § 54-193(d), not Crawford, was the controlling law on a statute of limitations affirmative defense in the case. See id. The court went on to hold that the second habeas court erred in its determination that the petitioner was elusive, unavailable, and unapproachable. The court, however, also held that that the second habeas court’s finding that the petitioner failed to demonstrate that the state could not prove that the time in which the warrant was served was reasonable, was not in error. See id., 842-45. As such, the court concluded that the petitioner failed to prove deficient performance by his trial counsel or resulting prejudice. See id., 853. Thus, the court affirmed the judgment of the second habeas court denying the amended petition for writ of habeas corpus. See id.

The state argues that the judgment of our Appellate Court in Roger B. II is not final, because on July 5, 2019, both parties to that case filed motions for reconsideration. The state further argues that it anticipates that that the petitioner will petition for certification to appeal in our Supreme Court. Time and the actions of our Appellate Court and Supreme Court have proven the state’s arguments to be without merit. On July 24, 2019, both parties’ motions for reconsideration were denied by our Appellate Court. Further, both parties’ petitions for certification to appeal were denied by our Supreme Court on October 22, 2019.

The state further argues that the court should not rely on our Appellate Court’s conclusion "that the [second] habeas court incorrectly determined that § 54-193[ (d) ], not Crawford, is the controlling law on a statute of limitations affirmative defense in the present case" as it is mere dicta because ultimately the court affirmed, on alternate grounds, the second habeas court’s denial of the habeas petition. This argument is also without merit.

As our Appellate Court previously stated, "it is not dictum when a court of [appeal] intentionally takes up, discusses and decides a question germane to, though not necessarily decisive of, the controversy ... Rather, such action constitutes an act of the court which it will thereafter recognize as a binding decision." (Citation omitted; internal quotation marks omitted.) Middletown Commercial Associates Ltd. Partnership v. Middletown, 53 Conn.App. 432, 435, 730 A.2d 1201, cert. denied, 250 Conn. 919, 738 A.2d 657 (1999).

The court agrees with the defendant that our Appellate Court’s conclusion that § 54-193(d) ceases to operate once an arrest warrant issues is holding, not dicta. Our Appellate Court’s judgment was that the habeas court erred in assessing the statute of limitations issue under § 54-193(d), but that the error was harmless in light of the fact that there was not an unreasonable delay of the execution of the arrest warrant. See Roger B. II, supra, 190 Conn.App. 842-45. In Roger B. II, the court took up and decided the question of whether § 54-193(d) applied, even if that issue was not decisive of the controversy, it nonetheless constituted an action of the court which is binding on the court. See Middletown Commercial Associates Ltd. Partnership v. Middletown, supra, 53 Conn.App. 435.

The court’s conclusion that it is bound by Roger B. II ’s holding, that § 54-193(d) ceases to operate once an arrest warrant is issued, mandates that this court cannot as a matter of law decline to follow Roger B. II . Few principles are as well-established and universally followed as the principle that "[a] trial court is required to follow the prior decisions of an appellate court to tile extent that they are applicable to facts and issues in the case before it, and the trial court may not overturn or disregard binding precedent." Potvin v. Lincoln Service & Equiptment Co., 298 Conn. 620, 650, 6 A.3d 60 (2010). The defendant has neither attempted to distinguish the present case from Roger B. II, nor persuaded the court that Roger B. II was wrongly decided. The state’s argument that Roger B. II stands at odds with binding Supreme Court precedent ignores our Appellate Court’s reliance on our Supreme Court’s decisions in State v. Crawford, supra, 202 Conn. 450 n.12, State v. Ali, supra, 233 Conn. 412, and State v. Figueroa, supra, 235 Conn. 177-78.

III

Even assuming, arguendo, that the court was to apply the standard laid out by § 54-193(d) the defendant cannot be said to have "fled" Connecticut to California as the term is defined in the statute by our Supreme Court in Ward. In Ward, supra, 306 Conn. 706, the defendant claimed that he had not "fled" within the meaning of § 54-193(c), now § 54-193(d), by returning home to Massachusetts after the commission of the crime because his intent was not to evade prosecution. The court began with the text of the statute and determined that because "fled" has not been defined by statute, it was statutorily required to construe the term with the commonly approved usage of the language. See id., 709. The court, relying on Merriam-Webster’s Collegiate Dictionary (10th Ed. 1993), found that the term "flee" had been defined alternatively as "to run away often from danger or evil" and "to hurry toward a place of security." See id. The court then addressed the defendant’s argument that the trial court improperly determined that he "fled from and resided out of this state" because the state did not present any evidence to show that the defendant intended to avoid prosecution. Id., 710. The court disagreed with the defendant’s reading of the statute and found that the plain language of the statute supported the conclusion that it does not require that a defendant flee with the intent to avoid prosecution. See id ., 711. The court noted, however, "that the common usage of the term fled connotes a meaning that a defendant is running away from something. The term fled as we have ascertained from the dictionary definition means to run away from danger- in the context of § 54-193(c), we understand this term to mean investigation- and hurry toward a place of security- in the context of § 54-193(d), we understand this term to mean outside of the jurisdiction." Id. Thus, the court concluded, that § 54-193(d) will toll the statute of limitations when a defendant "absents himself from the jurisdiction with reason to believe an investigation may ensue as the result of his actions." Id., 711. The court went on to conclude that the construction of fled in § 54-193(d) promoted the interests sought to be protected by the tolling provision with reference to the practical realities of law enforcement "[i]nvestigation of crimes is easier for law enforcement officials when people central to the incident, and who may have vital information, are located within the state." (Internal quotation marks omitted.) Id., 712, citing State v. Sher, 149 Wis.2d 11, 437 N.W.2d 878 (1989).

In the present case, the defendant did not "flee" as the term in § 54-193(d) is defined because he did not have reason to believe an investigation "may ensue" as the result of his actions. The standard in Ward is not that a defendant "absent" himself from the state with reason to believe an investigation "is ongoing" or "had ensued," but rather that he "absent" himself from the state with reason to believe an investigation "may ensue." Ward, supra, 306 Conn. 711. In Ward, the defendant had committed a sexual assault in Connecticut, and immediately fled to his home state of Massachusetts. See id., 704. At the time he fled back to Massachusetts, the defendant had reason to believe an investigation may ensue because he had not yet been identified as a suspect in the sexual assault. See id., 713-14. In the present case, the defendant did not have reason to believe an investigation would ensue by the simple fact that he was a voluntary participant in the already ensued investigation and had already admitted to the crime. The defendant was not running away from something or hurrying toward a place of security when he remained in Connecticut for almost two years before relocating to California.

The circumstances surrounding the investigation of the defendant in Ward and the defendant in the present case are readily distinguishable. In Ward, the defendant was unknown to the police and his immediate return to Massachusetts prevented the police from discovering his identity. See Ward, supra, 306 Conn. 704. Only after an anonymous tip seventeen years after the crime were the police able to garner the DNA evidence needed to eventually arrest the defendant in Ward . See id., 705. In the present case, however, the police had already executed and served the defendant with a search warrant of his residence, wherein the police seized two of the defendant’s computers, storage media, and a router. In addition, the defendant was fully cooperative with the police by assisting them with the search, including providing passwords to the computers. The defendant also signed his sworn statement in which he admitted to possessing child pornography, and the police informed the defendant that once they received the forensic report for the examination of the defendant’s computers/equipment that an arrest warrant charging him with possession of child pornography would be forthcoming. The defendant did not move to California until almost two years after his admission, and his apartment lease and utilities in California were in his name. In addition, the defendant’s cell phone number was the same phone number that he had in Connecticut, it had never changed, and it had always been a valid working number. The police had no other contact with the defendant after the 2009 interview at which he admitted to the crime.

The Ward court’s conclusion that the construction of fled in § 54-193(d) promoted the interests sought to be protected by the tolling provision because "[i]nvestigation of crimes is easier for law enforcement officials when people central to the incident, and who may have vital information, are located within the state"; Ward, supra, 306 Conn. 712, citing State v. Sher, 149 Wis.2d 1, 14, 437 N.W.2d 878 (1989); does not apply in the present case because the defendant had given vital information to the police department before he had left the state to go to California. The defendant had not only provided vital information in the form of his computer, but more importantly he had admitted to committing the crime. This is evidenced most clearly by the fact that the police informed the defendant that once they received the forensic report for the examination of the defendant’s computer that an arrest warrant charging him with possession of child pornography would be forthcoming. For the foregoing reasons, the court concludes that the defendant did not flee as the word is defined in § 54-193(d). Therefore, even pursuant to a § 54-193(d) analysis, the case would have been dismissed.

CONCLUSION

For the foregoing reasons, the defendant’s motion to dismiss is granted.

SO ORDERED.

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