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       STATE OF CONNECTICUT v. ANDREW
                 STEPHENSON
                  (AC 36165)
                   Beach, Alvord and Keller, Js.
     Argued October 9, 2014—officially released January 6, 2015

  (Appeal from Superior Court, judicial district of
    Hartford, geographical area number fourteen,
Carbonneau, J. [judgment]; McNamara, J. [petition for
             writ of error coram nobis].)
  Michael A. Ugolini, for the appellant (defendant).
   Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Robert Mullins, assistant state’s attorney,
for the appellee (state).
                         Opinion

  BEACH, J. The defendant, Andrew Stephenson,
appeals from the judgment of the trial court denying
his petition for a writ of error coram nobis. Because
we conclude that in the circumstances presented, the
court had no jurisdiction to consider the merits of the
petition, we do not reach the merits of his claims.1 We
conclude that the court erred in finding that it had
jurisdiction over the petitioner’s petition for a writ of
error coram nobis,2 and, therefore, we remand the case
with direction to dismiss the petition.
  The following facts as found by the trial court and
procedural history are relevant to our analysis. The
petitioner came to the United States from Jamaica, as
permitted by a work visa that was issued on June 7,
2006, and expired on April 3, 2007. He nevertheless
has lived without proper documentation in the United
States ever since. At the time the petition was heard,
he was married and had one child. His wife and child
were citizens of the United States.
   The petitioner was arrested and arraigned on June
8, 2010. He was charged with criminal mischief in the
second degree in violation of General Statutes § 53a-
116, threatening in the second degree in violation of
General Statutes § 53a-62 and criminal trespass in the
first degree in violation of General Statutes § 53a-107.
When the petitioner met with his trial counsel, he was
advised that conviction of the charges against him could
render him deportable. On April 15, 2011, the petitioner
entered a guilty plea, under the Alford doctrine,3 to all
three charges. The court rendered judgment on April
15, 2011. The petitioner received an effective sentence
of one year incarceration, execution suspended, and
three years of probation. The petitioner sought and was
granted early termination of his probation on February
28, 2012. The record does not reflect that any adverse
immigration consequences have yet occurred. The peti-
tioner filed a petition for a writ of error coram nobis
on January 28, 2013, alleging ineffective assistance of
counsel for several reasons. After finding that it had
jurisdiction to consider the petition on its merits, the
court denied the petition.
  We begin our analysis by setting forth the applicable
standard of review. Our Supreme Court has long held
that ‘‘because [a] determination regarding a trial court’s
subject matter jurisdiction is a question of law, our
review is plenary. . . . [A] court lacks discretion to
consider the merits of a case over which it is without
jurisdiction . . . .’’ (Internal quotation marks omitted.)
Richardson v. Commissioner of Correction, 298 Conn.
690, 696, 6 A.3d 52 (2010).
  ‘‘A writ of error coram nobis is an ancient common-
law remedy which authorized the trial judge, within
three years, to vacate the judgment of the same court
if the party aggrieved by the judgment could present
facts, not appearing in the record, which, if true, would
show that such judgment was void or voidable.’’ (Inter-
nal quotation marks omitted.) State v. Das, 291 Conn.
356, 370, 968 A.2d 367 (2009). ‘‘A writ of error coram
nobis lies only in the unusual situation where no ade-
quate remedy is provided by law. . . . Moreover, when
habeas corpus affords a proper and complete remedy
the writ of error coram nobis will not lie.’’ (Internal
quotation marks omitted.) State v. Henderson, 259
Conn. 1, 3, 787 A.2d 514 (2002). ‘‘The errors in fact on
which a writ of error [coram nobis] can be predicated
are few. . . . This can be only where the party had
no legal capacity to appear, or where he had no legal
opportunity, or where the court had no power to render
judgment.’’ (Internal quotation marks omitted.) Hub-
bard v. Hartford, 74 Conn. 452, 455, 51 A. 133 (1902).4
   The petitioner filed the petition for a writ of error
coram nobis within three years of his guilty plea. He,
however, also must show that no other form of relief
was available.5 The petitioner argues that the petition
for a writ of coram nobis was the proper vehicle by
which to bring his ineffective assistance of counsel
claim because habeas relief was never available to him,
in that his sentence included a suspended sentence of
incarceration. We disagree and conclude that he could
have brought a petition for habeas relief while he was
on probation, and, therefore, his petition for a writ of
error coram nobis could not provide relief.
   General Statutes § 52-466 (a) (1) provides in relevant
part that ‘‘[a]n application for a writ of habeas corpus
. . . shall be made to the superior court, or to a judge
thereof, for the judicial district in which the person
whose custody is in question is claimed to be illegally
confined or deprived of his liberty.’’ (Emphasis added.)
‘‘A person is in custody when he is under a legal
restraint.’’ Hastings v. Commissioner of Correction,
82 Conn. App. 600, 603, 847 A.2d 1009 (2004), appeal
dismissed, 274 Conn. 555, 876 A.2d 1196 (2005). Our
Supreme Court has concluded that ‘‘the custody require-
ment in § 52-466 is jurisdictional in nature because the
history and purpose of the writ of habeas corpus estab-
lish that the habeas court lacks the power to act on a
habeas petition absent the petitioner’s allegedly unlaw-
ful custody.’’ (Internal quotation marks omitted.) Ajadi
v. Commissioner of Correction, 280 Conn. 514, 537, 911
A.2d 712 (2006).
  In Guerra v. State, 150 Conn. App. 68, 71, 89 A.3d
1028 (2014), the petitioner had been sentenced to five
years incarceration, execution suspended, and five
years of probation. He did not file a habeas petition
until after he had successfully completed his period of
probation. Id., 71–72. This court concluded that ‘‘[t]he
petitioner ceased suffering any present restraint from
his challenged conviction, and thus was no longer in
custody pursuant thereto, when his sentence expired
upon the completion of his probation . . . .’’ (Emphasis
added.) Id., 76. The clear implication is that the petition
for a writ of habeas corpus would have been appropri-
ately considered had it been brought within the period
of probation. See also General Statutes § 53a-28 (b);
State v. Faraday, 268 Conn. 174, 180, 842 A.2d 567
(2004) (‘‘[P]robation is, first and foremost, a penal alter-
native to incarceration . . . . [P]robationers . . . do
not enjoy the absolute liberty to which every citizen
is entitled, but only . . . conditional liberty properly
dependent on observance of special [probation] restric-
tions.’’ [Internal quotation marks omitted.]).
   In this case, the petitioner was sentenced on April
15, 2011, to one year incarceration, execution sus-
pended, and three years of probation. His probation
was terminated early, on February 28, 2012. He could
have filed a habeas petition during the time he was on
probation, when his liberty was restricted. Because the
petitioner could have raised any of his current claims
in a habeas petition, he had a legal remedy available
to him, and, therefore, the court did not have jurisdic-
tion to reach the merits of the petition for a writ of
error coram nobis.
   The form of the judgment is improper, the judgment
is reversed and the case is remanded with direction to
render judgment of dismissal.
      In this opinion the other judges concurred.
  1
     In particular, the petitioner claims he was denied effective assistance
of counsel, and that the trial court erred in refusing to consider his claim
of innocence in the underlying criminal conviction.
   2
     Because we hold that a prerequisite for reaching the merits of a petition
for a writ of coram nobis was not met, the court lacked subject matter
jurisdiction to consider the petition. In Richardson v. Commissioner of
Correction, 298 Conn. 690, 696, 6 A.3d 52 (2010), for example, our Supreme
Court held that the habeas court was without subject matter jurisdiction to
consider the merits of a petition for a writ of habeas corpus, where the
petitioner was no longer in custody. By analogy, the court in this case was
without subject matter jurisdiction to consider the merits of the petition
for a writ of coram nobis, because the petitioner at one time had available
to him the petition for a writ of habeas corpus, and thus was ineligible
for relief.
   Because the Superior Court generally has no jurisdiction to act in cases
after the defendant begins serving his or her sentence; see State v. Das, 291
Conn. 356, 362, 968 A.2d 367 (2009), and the court had no power to reach
the merits of the petition in the present case because prerequisites were
not met, Richardson controls.
   3
     North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
   4
     The state argues that, because of more recently created remedies, such
as the petition for a new trial, the writ of coram nobis should be jettisoned,
if in fact it ever provided relief in Connecticut. We need not decide this
issue, however, because even if the remedy does exist, the prerequisites for
granting relief were not met here.
   5
     Because we conclude that the petitioner could have brought a habeas
petition, we do not decide whether he could have or should have brought
a motion to withdraw the plea or a petition for a new trial, as the state argues.
