Consiglio v. Warden, Connecticut State Prison

• Decision Date: 15 December 1970
• Parties: Salvatore CONSIGLIO v. WARDEN, CONNECTICUT STATE PRISON.
• Court: Connecticut Supreme Court

Page 773

276 A.2d 773

160 Conn. 151

Salvatore CONSIGLIO v. WARDEN, CONNECTICUT STATE PRISON.

Supreme Court of Connecticut.

Dec. 15, 1970.

George A. Athanson, Special Public Defender, for appellant (plaintiff).

Jerrold H. Barnett, Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., and David B. Salzman, Asst. State's Atty., for appellee (state).

Before ALCORN, C. J., and HOUSE, COTTER, THIM and RYAN, JJ.

COTTER, Associate Justice.

The plaintiff was sentenced on February 13, 1959, by the Superior Court to imprisonment for not less than nine nor more than thirty years after he had pleaded guilty to twenty-six counts of statutory burglary and to being a third offender. ¹ The plaintiff instituted this action of habeas corpus in December, 1966, ² and in his amended petition he has alleged certain violations of his constitutional rights. These include the following claims which are material to this appeal: On and after his arrest on December 11, 1958, he was denied the assistance of counsel; he was not advised of his right to remain silent; he was not warned that anything he said could be used against him; a confession was obtained from him under duress and coercion by the police, and he was induced to plead guilty on February 13, 1959, because of ill-advised instructions of counsel.

The trial court, after a full hearing on the merits, denied the plaintiff's application for a writ of habeas corpus in a judgment rendered July 23, 1968. Thereafter, the trial court granted statutory certification for an appeal to this court pursuant to § 52-470 of the General Statutes.

The following facts are not in dispute: The plaintiff was arrested on December 11, 1958, and taken to the Hamden police station. He was not advised of his constitutional rights at the time of his arrest. After his arrest and before he had the assistance of counsel, he was taken in the custody of the police to a number of houses in New Haven and surrounding towns where he had allegedly committed burglaries. Thereafter, before he was presented in the Hamden Town Court, the plaintiff signed a confession admitting the commission of a number of the offenses for which he was later charged in the Superior Court. It did not appear in evidence how many or which of the offenses, with which he was later charged, he had admitted in his confession. Two nights after his arrest, private counsel, Attorney Anthony J. Criscuolo, was retained to represent him. This attorney represented the plaintiff on December 15, 1958, when he was presented in the Hamden Town Court where he was charged with eight counts of statutory burglary and six counts of larceny. The plaintiff pleaded not guilty to all counts against him and waived examination. He was bound over to the Superior Court under a bond of $25,000. At all times in the Superior Court, the plaintiff was represented by Attorney John M. Murphy, the public defender for New Haven County. The Superior Court information against the plaintiff, in its first part, charged twenty-six counts of statutory burglary and, in its second part, charged the plaintiff with being a third offender. On January 22, 1959, in the absence of the court, pursuant to Practice Book § 487, the plaintiff was informed by the clerk that he was being charged in the second part of the information as a third offender.

On January 27, 1959, the plaintiff pleaded not guilty to the first part of the information and elected to be tried by a jury of twelve, and on January 29, 1959, his trial commenced and a jury were empaneled. Before, however, any evidence was taken, the plaintiff changed his plea to guilty on each of the twenty-six counts of statutory burglary in the first part of the information and also pleaded guilty to the charge of being a third offender. A presentence report was ordered and thereafter filed with the court on February 10, 1959. On February 13, 1959, however, the plaintiff withdrew his pleas of guilty to both parts of the information, entered pleas of not guilty and again elected to be tried by a jury on each count. Thereafter, on the same day, February 13, 1959, in open court and in the presence of his attorney, the plaintiff again changed his plea to guilty on all counts in the first part of the information, reserving his not guilty plea to the second part. After a further discussion with his counsel, he pleaded guilty to the second part also.

These changes of plea were preceded by a lengthy interrogation from the court which started with: 'What is your situation now, Consiglio? What do you want to do?' To which the plaintiff replied, 'I was speaking to Mr. Murphy downstairs all about it.' When the court asked what was discussed and what the plaintiff wished to do now, the answer was: 'I guess I didn't realize what I was doing. * * * I would rather change this plea. I figure I might be worse off than the time before later on, so supposing I go through and face it.' The court then asked to what the plaintiff wished to change his plea, to which the plaintiff answered: 'To guilty.' The court then reminded the plaintiff that there were twenty-six counts, and the plaintiff answered that he realized that and he would like hospitalization to find out what caused him to get into this type of trouble.

The court then further reminded the plaintiff that he had pleaded guilty before to being a third offender, and the plaintiff stated: 'On the third offender I want to plead not guilty.' After a discussion with his attorney, the plaintiff told the court that 'I think I plead guilty on that third offender'. To the court's question 'Why did you change your mind?' the plaintiff answered: 'Well as Mr. Murphy said, it can be proved.' To the court's inquiry as to the plaintiff's knowledge of how the third offender charge would be proved, the plaintiff stated that '(t)his would be my third time at the (sic) Field.' ³ The court then specifically asked again as to whether the plaintiff knew he was a third offender to which the plaintiff answered 'Yes.'

Again before the plaintiff was put to plea the court stated: 'Is there any question but what you want to go through with a plea of guilty on all these twenty-six counts and you also want to plead guilty to being a third offender?' To which the plaintiff answered 'Yes, sir'. To the court's final question. 'There is no question in your mind about that?' the plaintiff answered 'No, sir'.

At the hearing on this petition of habeas corpus in 1968, the court found there was no evidence that the plaintiff had been illegally detained or that his confession related to all twenty-six counts to which he pleaded guilty or that the existence of the confession motivated him to plead guilty, and the court further concluded that the pleas of guilty were not the product of an illegal detention, a coerced confession or a denial of his right to counsel or ill-advised instructions of counsel but were made voluntarily, understandingly and on advice of counsel and constituted a waiver of all nonjurisdictional defenses.

The plaintiff assigns as error the conclusions of the court that his pleas of guilty were made voluntarily, understandingly and on the advice of counsel and that they were not the product of an illegal detention, a coerced confession, a denial of his right to counsel or of the ill-advised instructions of counsel unduly influencing him. These conclusions, which are to be tested by the finding, 'must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law material to the case.' Johnston Jewels, Ltd. v. Leonard, 156 Conn. 75, 79, 239 A.2d 500, 503. In attacking the court's conclusions, the plaintiff seeks to correct the finding by adding certain paragraphs of his draft finding in which he claims he was confined from seven to ten days, during which period of time he was taken manacled by the police to scenes of alleged burglaries, was otherwise threatened and abused, and was allowed to retain counsel after a confession was obtained, all of which he claims were material and undisputed facts. The court found that the plaintiff did not prove these claims. Although these claims have been stated several times in the plaintiff's brief, as well as the claim that he was unduly influenced by his counsel, the public defender, which claim the court also found was not proven, he has not printed any evidence in an appendix to his brief to support them. A party claiming that a fact should be found on the ground that it is material and either admitted or undisputed should print the evidence or the portion of the transcript upon which the claim is based. Practice Book § 717. To obtain an addition to a finding on the ground that omitted facts were either admitted or undisputed, the appellant must point to some part of the appendix, the pleadings or an exhibit properly before this court which shows that the appellee admitted the fact in question or that its truth was conceded to be undisputed. State v. Dukes, 157 Conn. 498, 500, 255 A.2d 614. The matters sought to be added are not shown to be admitted or undisputed. Thus, these assignments of error cannot be considered. Marshall v. Town of Newington, 156 Conn. 107, 111, 239 A.2d 478.

The plaintiff has further assigned as error, in that they were found without evidence, the court's findings that there was no evidence that the existence of the plaintiff's confession motivated him to plead guilty or that he was illegally detained. Again, the plaintiff has printed no evidence, leaving it to the defendant to print the evidence which he claims supports the challenged findings. Practice Book § 718; Brodsky v. Brodsky, 153 Conn. 299, 302, 216 A.2d 180. There is ample evidence printed in the appendix to the defendant's brief to support the findings which the plaintiff claims were found without evidence.

In regard to the conclusion of the court that there was...