State v. Perez

• Decision Date: 29 November 2005
• Docket Number: No. 17162.,17162.
• Citation: 885 A.2d 178,276 Conn. 285
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Daniel PEREZ.

885 A.2d 178

276 Conn. 285

STATE of Connecticut v. Daniel PEREZ.

No. 17162.

Supreme Court of Connecticut.

Argued January 7, 2005.

Decided November 29, 2005.

Francis T. Mandanici, senior assistant public defender, pro se, the plaintiff in error.

Jane R. Rosenberg, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan Quinn Cobb, assistant attorney general, for the defendants in error (Michael Dearington, state's attorney, et al.).

BORDEN, NORCOTT, PALMER, VERTEFEUILLE and ZARELLA, Js.

PALMER, J.

The plaintiff in error, Francis T. Mandanici (plaintiff), a senior assistant public defender, brings this writ of error against the defendants in error, Michele T. Angers, in her capacity as chief clerk of the Appellate Court, and Michael Dearington, in his capacity as state's attorney for the judicial district of New Haven (defendants). The plaintiff claims that the Appellate Court violated his federal and state due process rights by reprimanding him without first providing him with notice and an opportunity to be heard, and that the reprimand was unsupported by the facts. The plaintiff's claims arise from certain statements that are contained in an order issued by the Appellate Court denying a motion that the plaintiff had filed, on behalf of a client in a criminal case, seeking reconsideration en banc of a decision that the Appellate Court had issued in that case. In that order, the Appellate Court stated that the plaintiff had made a misrepresentation of material fact to that court in violation of rule 3.3(a) of the Rules of Professional Conduct,¹ and that he had, without justification, attacked the integrity of the Appellate Court and otherwise acted in an unprofessional manner. We agree with the plaintiff that the Appellate Court's finding that he had violated rule 3.3(a) of the Rules of Professional Conduct was tantamount to a reprimand and, therefore, that his due process rights were violated by virtue of the Appellate Court's failure to afford the plaintiff notice and an opportunity to be heard before making any such finding. We also agree with the plaintiff that the Appellate Court's finding of a violation of rule 3.3(a) of the Rules of Professional Conduct cannot be sustained upon application of the heightened burden of proof applicable to such disciplinary findings. We further conclude, however, that the plaintiff is not entitled to relief with respect to the Appellate Court's other criticisms of his conduct. Accordingly, we grant the writ of error in part.² The following undisputed facts and procedural history are necessary to our disposition of the plaintiff's claims. The plaintiff represented Daniel Perez in a criminal case in which Perez was charged with two counts each of assault in the first degree and assault in the second degree. After the trial court, Thompson, J., denied Perez' motion to dismiss the charges on the ground of selective prosecution, Perez entered a plea of nolo contendere to one count of assault in the first degree and was sentenced to twenty years imprisonment, execution suspended after ten years. Perez' plea was conditioned on his right to appeal, which he did.

On appeal, the Appellate Court affirmed Perez' conviction. See State v. Perez, 80 Conn.App. 354, 364, 835 A.2d 84 (2003), superseded, 82 Conn.App. 100, 842 A.2d 1187, cert. denied, 269 Conn. 904, 852 A.2d 734 (2004). In doing so, the Appellate Court summarized the facts underlying the charges that the state had filed against Perez: "On May 28, 2000, an officer with the Berlin police department attempted to stop and approach the vehicle being driven by [Perez] after discovering that it was displaying a stolen marker plate. The officer stopped the vehicle and, as he approached the vehicle, [Perez] sped away in an apparent attempt to flee. The officer pursued the vehicle to no avail. As the chase neared the Meriden town line, the Berlin police department notified the Meriden police department of the chase and of the fact that [Perez] was approaching the town line. The Berlin police department abandoned the chase when [Perez] reached Meriden.

"Once [Perez] was in Meriden, a Meriden police officer discovered [Perez] driving southbound in a northbound lane. The officer observed [Perez] changing back and forth between the northbound and southbound lanes, almost striking vehicles head on and forcing northbound vehicles off the road. The officer estimated that [Perez] had been driving in that manner for approximately four miles since the Berlin police department [had] abandoned its pursuit. At that time, a second pursuit began between the Meriden police officer and [Perez], who failed to yield and continued to flee in a dangerous manner.

"Throughout the pursuit, [Perez] drove approximately sixty to seventy miles per hour through a densely populated thirty-five mile per hour zone. [Perez] repeatedly drove on the wrong sides of the road and median, forcing traffic onto the sidewalk and into oncoming traffic. Several Meriden police officers assisted with the pursuit by attempting to warn oncoming traffic of [Perez] and by trying unsuccessfully to guide him onto a highway and away from the densely populated area.

"The pursuit ended tragically when [Perez], while traveling southbound in a northbound lane, struck a vehicle [whose driver was] attempting to make a left turn. The driver of the vehicle suffered severe injuries, including massive head and brain injuries, neurological injuries, and massive pelvic and internal injuries. At the scene of the crash, the Meriden police officers found [Perez] frantically trying to escape from [his] vehicle in an apparent attempt to flee on foot. The officers also discovered two passengers in [Perez'] vehicle, one of whom was yelling at [Perez] for having ignored the passenger's requests to stop." Id., at 356-57, 835 A.2d 84.

In his appeal to the Appellate Court, Perez claimed that the trial court improperly had denied his motion to dismiss for selective prosecution predicated on the state's failure also to prosecute the police officers involved in the chase. See id., at 358, 835 A.2d 84. In rejecting Perez' claims, the Appellate Court noted, first, that, to prove selective prosecution, a defendant must show that (1) "others similarly situated have generally not been prosecuted and that he has been singled out," and (2) "he is the victim of invidious discrimination based on impermissible considerations such as race, religion or the exercise of a constitutionally protected right." (Internal quotation marks omitted.) Id., at 359, 835 A.2d 84. The Appellate Court further stated that, in determining whether two groups are similarly situated for purposes of a selective prosecution claim, the court "must look for persons situated similarly in all relevant aspects ...." (Emphasis in original; internal quotation marks omitted.) Id. The Appellate Court concluded that, as a matter of law, "in [Perez'] case, the relevant differences between the [two] groups far outweigh the relevant similarities." Id., at 360, 835 A.2d 84. "[A] criminal suspect [like Perez] in possession of stolen property, fleeing from law enforcement officials, leading officers from two police departments on a high speed chase through a densely populated area and into oncoming traffic, all in an apparent attempt to circumvent the legal repercussions [that] he inevitably faced as a result of his original unlawful activity"; id.; bore no material similarity to the pursuing police officers, who "were authorized by General Statutes § 14-283(a) and (b) to exceed the posted speed limit and to disregard regulations governing the direction of movement in their pursuit of a fleeing law violator."³ Id., at 360-61, 835 A.2d 84.

Perez also claimed on appeal that the trial court had violated his constitutional right to present a defense by denying his request for an evidentiary hearing on his claim of selective prosecution. See id., at 362, 835 A.2d 84. In rejecting that claim, the Appellate Court stated that "the [trial] court considered [Perez'] offer of proof and concluded, as a matter of law, that he had not and could not make a prima facie showing of selective prosecution." Id., at 363, 835 A.2d 84. The Appellate Court concluded "that the [trial] court's conclusion was reasonable in that [Perez] had not made a prima facie showing with regard to either prong of the selective prosecution test and as such was not entitled to a hearing.... Although [Perez] may have been prepared to prove that the officers were negligent in their pursuit of him, such a showing would have been wholly unrelated to whether there was selective prosecution." Id., at 363-64, 835 A.2d 84.

Thereafter, the plaintiff, on behalf of Perez, filed a motion for reconsideration en banc. In support of the motion, the plaintiff alleged, inter alia, that, in rejecting Perez' selective prosecution claim, the Appellate Court had ignored an argument in the brief that the plaintiff had filed on Perez' behalf, namely, that, under State v. Scribner, 72 Conn.App. 736, 742, 805 A.2d 812 (2002), police officers are not immune from liability for exceeding the posted speed limit if, in the act of speeding, they endanger life or property. The plaintiff further asserted that, if the Appellate Court properly had credited this argument, the court necessarily would have concluded that the state had no legitimate basis for failing to prosecute the Meriden police officers. The plaintiff also repeatedly stated that the Appellate Court, in concluding that Perez and the police officers were not similarly situated for purposes of Perez' selective prosecution claim, "ignored the crucial fact that the trial court [had] accepted [Perez'] offer of proof that the police [had] caused the accident." The plaintiff then asserted, in a footnote, that "this [was] not the first time" that the Appellate Court had "dodge[d]" issues raised in a brief that h...