Blakeney v. Commissioner of Correction

• Decision Date: 03 February 1998
• Docket Number: No. 15788,15788
• Citation: 47 Conn.App. 568,706 A.2d 989
• Parties: Percell BLAKENEY v. COMMISSIONER OF CORRECTION
• Court: Connecticut Court of Appeals

Page 989

706 A.2d 989

47 Conn.App. 568

Percell BLAKENEY v. COMMISSIONER OF CORRECTION.

No. 15788.

Argued Sept. 18, 1997.

Decided Feb. 3, 1998.

James A. Shanley, Special Public Defender, Nicole Anker, Certified Legal Intern, and Percell Blakeney, pro se, with whom were Timothy H. Everett, Hartford, and, on the brief, Audrey Felsen, Certified Legal Intern, for appellant (petitioner).

Paul J. Ferencek, Assistant State's Attorney, with whom, on the brief, were Patricia A. Swords, State's Attorney, and Christopher A. Alexy, Assistant State's Attorney, for appellee (respondent).

Before EDWARD Y. O'CONNELL, C.J., and FOTI and SPEAR, JJ.

SPEAR, Judge.

The petitioner sought a writ of habeas corpus challenging his convictions of burglary in the first degree in violation of General Statutes § 53a-101 and burglary in the second degree in violation of General Statutes § 53a-102. He appeals from the judgment of the trial court dismissing the petition and claims that (1) the prosecutor's failure to sign the information that charged burglary in the first degree deprived the trial court of subject matter jurisdiction as to that offense, (2) counsel was ineffective in pursuing the petitioner's appeal because of her conflict of interest, and (3) the trial court deprived him of effective assistance of trial and appellate counsel by (a) denying his motion to withdraw his guilty pleas, (b) denying trial counsel's motion to withdraw, (c) denying the petitioner the right to represent himself, (d) failing to inquire into trial counsel's conflict of interest and (e) failing to appoint a new attorney to file his appeal. We affirm the judgment of the trial court.

The trial court's memorandum of decision and the record disclose the following facts and procedural history. On the count of burglary in the first degree the petitioner was sentenced to a term of fourteen years, with the execution of the sentence suspended after nine years. On the count of burglary in the second degree, charged in a separate information, the petitioner was sentenced to a term of nine years to be served concurrently with the sentence for burglary in the first degree. On the day of sentencing, the petitioner moved to vacate his guilty pleas claiming, inter alia, that his trial counsel had been ineffective. His trial attorney then moved to withdraw, citing a breakdown in communication between her and the petitioner. The court denied both motions.

After the petitioner was sentenced, trial counsel filed an appeal on his behalf. Thereafter, counsel filed an Anders brief ¹ stating that any appeal would be frivolous and requesting permission to withdraw as appellate counsel. The trial court, pursuant to Practice Book § 954, ² granted the motion to withdraw and declined to appoint new appellate counsel. The petitioner appealed pro se and this court affirmed his conviction in State v. Blakeney, 36 Conn.App. 939, 651 A.2d 1354 (1995). The petitioner thereafter filed a petition for a writ of habeas corpus alleging, inter alia, the matters that he now raises on appeal.

The habeas court dismissed the petition concluding that, although Practice Book § 617 provides that "[a]n information shall be signed by the prosecuting authority," the rules of practice cannot confer subject matter jurisdiction and, therefore, the petitioner's guilty plea constituted a waiver of this nonjurisdictional defect. The habeas court also found that the petitioner's trial counsel had no conflict of interest, concluding that the alleged conflict was "at most, a personal conflict brought on by the petitioner's unwillingness to place his confidence in the public defender who had been assigned to represent him." The habeas court further found that "[t]he petitioner has failed to prove that this 'personal' conflict adversely affected [counsel's] representation either in the trial court or on appeal."

Addressing the claim concerning counsel's alleged conflict on his appeal, the habeas court found that at the time trial counsel filed the petitioner's appeal, she intended to pursue it and determined that the appeal would be frivolous only after the appeal was filed. The trial court found that trial counsel had "an open mind at the time she was appointed to represent the petitioner on appeal and that she conducted an objective review of the transcripts of the proceedings up to and including the petitioner's sentencing to determine if there were any nonfrivolous issues that could be advanced on the petitioner's behalf." Finally, the habeas court concluded that the trial court that allowed counsel to withdraw as appellate counsel fully complied with Practice Book § 954 ³ and properly refused to appoint new appellate counsel. This appeal followed. ⁴

I

We first address the petitioner's claim that the trial court lacked subject matter jurisdiction because the prosecutor failed to sign the information charging burglary in the first degree. "Jurisdiction involves the power in a court to hear and determine the cause of action presented to it and its source is the constitutional and statutory provisions by which it is created." (Internal quotation marks omitted.) State v. Carey, 222 Conn. 299, 305, 610 A.2d 1147 (1992), appeal after remand, 228 Conn. 487, 636 A.2d 840 (1994). "Lack of subject matter jurisdiction may be raised at any time.... Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Citations omitted; internal quotation marks omitted.) Second Injury Fund v. Lupachino, 45 Conn.App. 324, 330, 695 A.2d 1072 (1997).

The petitioner's jurisdictional argument is premised primarily on the following statement in an 1816 Supreme Court decision: "[W]hat is intended by exhibiting a complaint [or information], in criminal cases [is] ... [t]he presentment of the complaint, signed by some proper informing officer, to a court or public officer, who has authority to receive the same, and to issue a warrant to apprehend the offender, and bring him to trial...." (Emphasis in original.) Newell v. State, 2 Conn. 38, 40 (1816). Reasoning that at common law a prosecutor had to exhibit a proper information to invoke the criminal jurisdiction of the Superior Court and that a proper information is one that is signed, the petitioner asserts that the court has no subject matter jurisdiction where the information is not signed.

Missing from this syllogism is the important fact that the language in Newell on which he relies is dicta. The Supreme Court was not asked to pass on whether an information that was not signed by a proper informing officer deprived the court of subject matter jurisdiction. Rather, the question presented was whether the applicable one year statute of limitations barred prosecution for an offense where the complaint was exhibited to a justice of the peace within one year of the offense, but not presented to the court until after the year had expired. ⁵ We are not inclined to imbue the quoted phrase with jurisdictional significance where the Supreme Court in Newell did not consider the issue raised here. Our reticence is buttressed by "the principle that every presumption is to be indulged in favor of subject matter jurisdiction." Sheff v. O'Neill, 238 Conn. 1, 15, 678 A.2d 1267 (1996).

The petitioner's reliance on Koennicke v. Maiorano, 43 Conn.App. 1, 682 A.2d 1046 (1996), is also misplaced. The petitioner cites Koennicke for the axiomatic proposition that "while the Superior Court is a court of general jurisdiction, that jurisdiction must be properly invoked by the parties in order for a court to entertain a cause of action." In Koennicke, we said that the attorney trial referee and the trial court had no subject matter jurisdiction over the third count of a civil complaint that alleged criminal trespass in violation of General Statutes § 53a-107. Although not stated expressly, Koennicke implicates the standing aspect of subject matter jurisdiction rather than the general power of the court to hear criminal cases. " 'Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause.' " Monroe v. Horwitch, 215 Conn. 469, 473, 576 A.2d 1280 (1990); Housing Authority v. Local 1161, 1 Conn.App. 154, 157, 468 A.2d 1251, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984). "Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy." (Internal quotation marks omitted.) Ardmare Construction Co. v. Freedman, 191 Conn. 497, 501, 467 A.2d 674 (1983), quoting Hiland v. Ives, 28 Conn.Supp. 243, 245, 257 A.2d 822 (1966).

No citation of authority is necessary for the proposition that only an authorized official has the right to prosecute a criminal charge. The plaintiff in Koennicke lacked standing to bring a criminal charge because he was not a prosecutor. ⁶ More than 100 years ago, our Supreme Court stated that "[i]t has been uniformly held since 1730 that the office [of state's attorney] then established carried with it the duty to conduct all criminal prosecutions in the Superior Courts, and the power to institute and carry on in every court having criminal jurisdiction (unless restrained by some statute) any criminal prosecution within the jurisdiction of the court, and also the power and duty to exercise the common law powers appertaining to the office ... so far as applicable to our system of jurisprudence.... It is then the common law of this State that authorizes the State's Attorney to file informations in the Superior Court...." State v. Keena, 64 Conn. 212, 215, 29 A. 470 ...