Cajigas v. Warden, Connecticut Correctional Institution, Somers

• Decision Date: 04 September 1979
• Citation: 179 Conn. 78,425 A.2d 571
• Court: Connecticut Supreme Court
• Parties: Jose CAJIGAS v. WARDEN, CONNECTICUT CORRECTIONAL INSTITUTION, SOMERS.

Page 571

425 A.2d 571

179 Conn. 78

Jose CAJIGAS v. WARDEN, CONNECTICUT CORRECTIONAL INSTITUTION, SOMERS.

Supreme Court of Connecticut.

Argued June 13, 1979.

Decided Sept. 4, 1979.

Thomas D. Clifford, Hartford, with whom was Robert L. Wyld, Hartford, for appellant (plaintiff).

George D. Stoughton, State's Atty., for the appellee (defendant).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.

PETERS, Associate Justice.

This is an appeal from the denial by the trial court of a petition for a writ of habeas corpus. The defendant, ¹ Jose Cajigas, was indicted and charged, along with two codefendants, with the crime of felony murder in violation of General Statutes § 53a-54c. The indictment was brought in connection with the July 15, 1975, stabbing death of the proprietor of a Hartford paint store during the course of a robbery or attempted robbery. Although the defendant originally pleaded not guilty to the indictment, he later withdrew this plea and, at a hearing on March 24, 1976, substituted a plea of guilty. In response to the court's questions at that hearing, some of which were channeled through an interpreter because of the defendant's limited proficiency in English, the defendant indicated that his plea was voluntary and intelligent, that he had discussed the matter with counsel, and that he fully understood the consequences of his change of plea. The indictment was read to the defendant, and after some further questioning the court then accepted the plea and subsequently sentenced the defendant to a prison term of not less than fifteen years nor more than life. No direct appeal was ever taken.

By petition for writ of habeas corpus dated September 30, 1977, the defendant, through new counsel, collaterally attacked his conviction, alleging that his confinement was illegal because his guilty plea was involuntary, unintelligent, and accepted in violation of the fourteenth amendment to the United States constitution. More specifically, the defendant in his petition alleged that the record failed to show that he had been fully informed of the elements of felony murder, and that the judge had failed to inquire if the defendant was aware of the statutory defense to felony murder contained in General Statutes § 53a-54c. ² The petition contained no allegation, however, concerning the defendant's failure to appeal from the judgment of conviction. Recognizing that, absent allegation and proof that the defendant did not deliberately bypass the ordinary appeal process, the petition could properly have been dismissed, the trial court nevertheless chose to examine the facts in their entirety. The court concluded that even had there been no deliberate bypass of the direct appeal process, the petition should be denied on its merits.

From the trial court's denial of his petition for a writ of habeas corpus the defendant has appealed to this court. The appeal presents two issues: (1) Should the petition have been denied because of the defendant's failure to allege and prove that no deliberate bypass of the appeal process had occurred? and (2) Was the defendant's guilty plea accepted in violation of due process because the defendant was not fully informed by the court of the elements of felony murder, in particular, of the elements of the underlying crime of robbery, or of the statutory defense to felony murder?

Because the first issue is jurisdictional in nature we must first consider whether this appeal is properly before us. A guilty plea is a waiver both of constitutional rights and of all nonjurisdictional defenses. Buckley v. Warden, 177 Conn. 538, 542, 418 A.2d 913 (1979); Consiglio v. Warden, 160 Conn. 151, 166, 276 A.2d 773 (1970). We have repeatedly and emphatically stated that habeas corpus cannot be used as an alternative to a direct appeal. Blue v. Robinson, 173 Conn. 360, 369, 377 A.2d 1108 (1977); Vena v. Warden, 154 Conn. 363, 365, 225 A.2d 802 (1966); Wojculewicz v. Cummings, 143 Conn. 624, 628, 124 A.2d 886 (1956). Where a claim could have been raised on direct appeal, but was not, there is ordinarily "no basis ... for allowing collateral attack 'to do service for an appeal.' Sunal v. Large, 332 U.S. 174, 179 (67 S.Ct. 1588, 92 L.Ed. 1982 (1947))." United States v. Timmrock, 441 U.S. 780, 784, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979). An exception to this rule is made when a conviction has been obtained in violation of rights guaranteed by the United States constitution. Vena v. Warden, supra. In such a case a defendant "may collaterally raise federal constitutional claims in a habeas corpus proceeding even though he has failed to appeal his federal constitutional claims directly to us if he alleges and proves, by a fair preponderance of the evidence, facts which will establish that he did not deliberately bypass the orderly procedure of a direct appeal. To be more precise, he must both allege in his petition and prove at the habeas corpus hearing that he did not 'after consultation with competent counsel or otherwise, understandingly and knowingly ... (forego) the privilege of seeking to vindicate his federal claims', by a direct appeal to this court. Fay v. Noia, (372 U.S. 391, 439, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963)). The burden of alleging and proving such facts is rightfully on the petitioner. Nash v. United States, 342 F.2d 366, 368 (5th Cir. (1965))." Vena v. Warden, supra, 154...