Blue v. Robinson

• Decision Date: 09 August 1977
• Citation: 377 A.2d 1108,173 Conn. 360
• Court: Connecticut Supreme Court
• Parties: Arthur BLUE v. Carl ROBINSON, Warden, Connecticut Correctional Institution.

Page 1108

377 A.2d 1108

173 Conn. 360

Arthur BLUE v. Carl ROBINSON, Warden, Connecticut Correctional Institution.

Supreme Court of Connecticut.

Argued March 2, 1977.

Decided Aug. 9, 1977.

Charles D. Gill, Public Defender, New Haven, with whom, on the brief, was James D. Cosgrove, Chief Public Defender, for appellant (plaintiff).

Ernest J. Diette, Jr., Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., and Michael Dearington, Asst. State's Atty., for appellee (defendant).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and SPEZIALE, JJ.

HOUSE, Chief Justice.

This is an appeal from the denial by the Superior Court in Hartford County (O'Brien, J.) of a writ of habeas corpus which was sought in making a collateral attack upon a judgment of the Superior Court in New Haven County (Stapleton, J.) which, on February 15, 1974, imposed a prison sentence on the petitioner, Arthur Blue, following his plea of guilty to one count of a five-count information. The count to which the guilty plea was entered and on which judgment was rendered charged Blue with attempted murder in violation of §§ 53a-49 and 53a-54(a)(1) of the General Statutes.

In this situation of a collateral attack on the judgment rather than an appeal from it, we are faced with an unusually complicated factual situation in which the only finding before us is that of the court which denied the writ of habeas corpus, and we do not have the benefit of any finding from the trial court which rendered the judgment which is subjected to the collateral attack. In this situation, a rather lengthy summary of the circumstances is necessary. Since in the original proceedings the petitioner was the defendant, to minimize confusion we will hereafter at all times refer to Blue as the defendant.

On January 17, 1974, the defendant, who was represented by private counsel, Joseph A. Licari, Jr., was presented in the Superior Court in New Haven County for trial on a five-count information to which he had previously pleaded not guilty, electing to be tried by a jury of six. The record on this appeal does not disclose the specific charges contained in counts two, three, four and five (which were subsequently nolled), but it does disclose what transpired on January 17, 1974, when the case was reached for trial. The assistant state's attorney, John J. Kelly, indicated that he had been informed by the defendant's counsel that the defendant intended to change his plea to the first count of the five-count information filed against him. The clerk of the court then asked the defendant if he wished to change his plea to the information charging him with attempted murder, to which he had previously pleaded not guilty on October 24, 1973. The defendant indicated that it was his desire to change his plea. Thereupon the clerk of the court stated to the defendant in open court: "This is the information: John T. Redway, Assistant State's Attorney for the County of New Haven, accuses Arthur Blue of attempted murder and charges that at the city of New Haven, on or about September 4, 1973, the said Arthur Blue, with intent to cause the death of another person, to wit: Officer Lawrence Klein, did attempt to cause the death of such person, in violation of Sections 53a-49 and 53a-54(a)(1) of the Connecticut General Statutes. To this information, sir, how do you at this time plead?" (Emphasis supplied.) To this inquiry the defendant answered "Guilty." At the direction of the court, the assistant state's attorney then stated the facts of the offense as they appeared in his file on the case and what action he proposed to take upon a change in the plea. ¹ The trial court then asked a series of questions of the defendant designed to ascertain that the plea of guilty was being offered by the defendant voluntarily and knowingly. ² The court then accepted the guilty plea and continued the case for sentencing upon receipt of a report from the probation department as a result of its presentence investigation.

On February 15, 1974, the defendant was presented in the Superior Court for sentencing by the same judge before whom he had previously personally entered his plea of guilty to the charge that "with intent to cause the death of another person, to wit: Officer Lawrence Klein, did attempt to cause the death of such person." His counsel made a strong plea for a minimum sentence, stating to the court that the defendant had "never any intention in his mind to actually commit any harm in any way" and also that neither counsel nor the defendant thought they would have been able to prevail if the case had gone to trial. There was no suggestion that the defendant wished to withdraw his previously entered guilty plea or that there were any difficulties or misunderstandings over the plea bargain which had been made with the state's attorney.

In the course of his comments in imposing sentence, the trial court stated: "It's difficult to judge what was in Mr. Blue's mind at the time this had happened. I take him at his word that he didn't intend to hurt anybody or he didn't intend to kill anyone in that sense. But in the course of committing another crime, he was armed with a deadly weapon and fired it at a police officer, which in itself is a serious offense." The court then imposed a sentence of from six to twelve years, indicating that Blue's extensive prior criminal record and his inability to solve his drug problem necessitated a serious penalty. This was a lesser penalty than the state's attorney's office had recommended.

The record discloses that in addition to the entry of a nolle on the other four counts of the information, at the time of sentence the state agreed to nolle four "check" counts pending against the defendant in two Circuit Courts when those charges were received and that at the time sentence was imposed the defendant was served by the clerk of the court with notice of his right to appeal from the court's judgment.

The defendant took no appeal from the judgment but, instead, in November, 1974, through new counsel instituted habeas corpus proceedings in the Superior Court in Hartford County collaterally attacking the earlier judgment of the Superior Court in New Haven County, claiming that his incarceration pursuant to that earlier judgment was illegal. It is from the judgment rendered by the Superior Court in Hartford County denying his petition for the writ of habeas corpus that the defendant has brought the present appeal. In these circumstances, it is the pleadings and proceedings in the habeas corpus matter which must first engage our attention to ascertain the merit of the defendant's assignments of error addressed to the judgment of the court denying the writ.

In his petition as amended, the defendant alleged that his confinement was illegal for two specific reasons. The first was that in accepting as voluntary his plea of guilty "the Court failed to advise the Petitioner of (a) his right to a jury trial, (b) his right against self-incrimination, and (c) his right to confront all witnesses against him." It is his claim that "(s)aid failure to satisfy the Constitutional requirements imposed on the Trial Court in insuring the voluntariness of any Guilty Pleas, rendered the Petitioner's purported Guilty Plea involuntary and therefore invalid as a matter of law on its face."

His second claim was more complicated and difficult to comprehend. In brief, it was predicated primarily on a claim that his trial counsel was incompetent in not controverting the state's claim that when the two Yale security officers chased him he pointed a revolver in their direction and pulled the trigger twice but it misfired. He alleged that a report to this effect by an investigating detective "on its face lacks credibility," that "by reasonable inquiry, said Attorney should have been able to eliminate the counts of attempted murder against two of the Officers, the purported likelihood of which was judged to be great by said attorney, caused Petitioner to change his not guilty plea on the first count involving Officer Klein, from whom he was fleeing after an unsuccessful attempt at auto theft." His claim then further alleged: "Petitioner thus could have established a lack of intent on the said first count, which would have been necessary for the State to have proven beyond a reasonable doubt a charge of attempted murder." We find it particularly difficult to follow this reasoning in view of the fact that it appears that the counts involving charges of attempting to shoot the two Yale security officers were nolled and the sole charge to which the defendant pleaded guilty and on which he was sentenced involved an earlier shooting when by his own admission in open court the defendant agreed that what happened was that he had "produced a revolver and fired one shot at Officer Klein which missed."

In any event, these were the allegations of the defendant's petition which he summarized in conclusion: "On the basis of the foregoing, the Petitioner respectfully submits that said Attorney was incompetent, thus violating Petitioner's Constitutional Right to have competent counsel representing him, and thus his plea was involuntary, and that as a matter of law Petitioner's plea was also involuntary in that sentencing Judge who accepted said plea of guilty, failed to inquire sufficiently of the Petitioner with respect to the voluntariness of his plea to satisfy the requirements of the Due Process Guarantee of the United States Constitution."

Our recital of the allegations of the defendant's petition clearly indicates that regardless of their merits they were claims which could properly have been raised on a direct appeal in which, if error were found, the case could have been remanded to the trial court for a new trial. ³ It would appear that by proceeding in an independent habeas corpus action the defendant hoped to retain the benefits of his plea bargain for...