Consiglio v. Warden, State Prison

CourtSupreme Court of Connecticut
Citation153 Conn. 673,220 A.2d 269
Decision Date25 May 1966
PartiesSalvatore CONSIGLIO v. WARDEN, STATE PRISON.

Arnold M. Schwolsky, Sp. Public Defender, with whom, on the brief, was George Browne, for appellant (plaintiff).

David B. Salzman, Asst. State's Atty., with whom, on the brief, was George R. Tiernan, State's Atty., for appellee (defendant).

Before KING, C. J., and MURPHY, ALCORN, SHANNON and COTTER, JJ. KING, Chief Justice.

This is an action of habeas corpus instituted by Salvatore Consiglio, a prisoner in the state prison, alleging a violation of his constitutional rights arising out of the state's failure to provide him with counsel at a hearing before the sentence review division of the Superior Court, hereinafter referred to as the review division.

On February 13, 1959, the plaintiff herein, who then and throughout his trial was represented by the public defender, was sentenced by the Superior Court, after being convicted of twenty-six counts of statutory burglary, and as a third offender, to imprisonment for not less than nine nor more than thirty years. Thereafter, he applied for a review of that sentence by the review division, which, after a hearing at which he was not represented by counsel, ordered that his minimum sentence be increased from nine to eleven years. On March 4, 1960, he was resentenced, pursuant to that order, under General Statutes § 51-196.

Over four years later, in June, 1964, the plaintiff instituted this action of habeas corpus. The trial court, after a hearing, held that the plaintiff had not been entitled to have counsel appointed to represent him before the review division, and it denied the habeas corpus petition.

Under the fourteenth amendment to the federal constitution, an indigent defendant in a criminal trial in a state court has a right to have counsel appointed to represent him in accordance with the decisions of the United States Supreme Court in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, and Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811. These decisions have been given retrospective effect. Smith v. Crouse, 378 U.S. 584, 84 S.Ct. 1929, 12 L.Ed.2d 1039; Doughty v. Maxwell, 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650; United States ex rel. Durocher v. LaVallee, 330 F.2d 303 (2d Cir.), cert. denied, 377 U.S. 998, 84 S.Ct. 1921, 12 L.Ed.2d 1048. This right to counsel exists at every critical stage of a criminal trial. White v. State of Maryland, 373 U.S. 59, 60, 83 S.Ct. 1050, 10 L.Ed.2d 193; Hamilton v. State of Alabama, 368 U.S. 52, 54, 82 S.Ct. 157, 7 L.Ed.2d 114; People v. Sykes, 23 App.Div.2d 701, 258 N.Y.S.2d 275.

The statutes which establish the punishments for most crimes set wide permissible limits, and under the indeterminate sentence act (General Statutes § 54-121) the trial court determines, within those limits, the maximum and minimum sentence to be imposed in each particular case. The court may, and in some cases must, order a presentence report by a probation officer. General Statutes § 54-109. Arguments may be presented by the state's attorney and by counsel for the accused, pointing out facts and circumstances bearing on the extent of the punishment to be imposed. The severity of the punishment may well be influenced by these arguments. Thus, the sentencing process is a critical stage of a criminal trial. See Carter v. People of State of Illinois, 329 U.S. 173, 178. 67 S.Ct. 216, 91 L.Ed. 172. Consequently, an indigent defendant is entitled to the assistance of appointed counsel at the time of sentencing. Townsend v. Burke, 334 U.S. 736, 740, 68 S.Ct. 1252, 92 L.Ed. 1690; Gideon v. Wainwright, supra. Cases on this point decided prior to the Gideon and Douglas cases are collected in an annotation in 20 A.L.R.2d 1240. Cases subsequent to the Gideon and Douglas cases may be found in 3 Later Case Service, p. 288.

Under Connecticut criminal procedure, after the imposition of sentence by the trial court, one who has been sentenced to imprisonment for one year or more may apply for a review of that sentence by the review division. General Statutes § 51-195. Upon such an application, the review division, after a hearing, is empowered to affirm, reduce, or increase the sentence imposed by the trial court. General Statutes § 51-196. This process has been likened to a limited appeal, restricted to a redetermination of the punishment which should be imposed. Kohlfuss v. Warden, 149 Conn. 692, 697, 183 A.2d 626. The review division, after hearing, may substitute a discretionary decision of its own for a discretionary decision of the trial court. Thus, the process in a sense is an optional de novo hearing as to the punishment to be imposed. 1 If the original sentence is changed by the review division, a resentencing, to effectuate that change, thereafter takes place under General Statutes § 51-196.

A hearing before the review division, like the original imposition of sentence after ascertainment of guilt, constitutes a critical stage of the sentencing procedure. The plaintiff was entitled under the federal constitution to 'the guiding hand of counsel' at that hearing. Powell v. State of Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 77 L.Ed. 158; Hamilton v. State of Alabama, 368 U.S. 52, 54, 82 S.Ct. 157, 7 L.Ed.2d 114. Indeed it is likely that the plaintiff, had he been represented by counsel before the review division, would have been persuaded to withdraw his application instead of pursuing it to a final conclusion and thereby running the risk of the increase in sentence which he in fact received.

Where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not ordinarily depend upon a request. Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 8 L.Ed.2d 70, and cases cited; Doughty v. Sacks, 175 Ohio St. 46, 191 N.E.2d 727, rev'd per curiam, sub nom. Doughty v. Maxwell, 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650. And when an indigent defendant appears without counsel under circumstances in which he is constitutionally entitled to counsel under the rule of cases such as Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, and Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, it is the duty of the court or the review division to inform the defendant of his right to have counsel appointed for him. Cases on this point decided prior to the Gideon and Douglas cases are collected in an annotation in 3 A.L.R.2d 1003, while cases subsequent to the Gideon and Douglas cases may be found in 1 Later Case Service, p. 284.

Of course, the state is not required to force counsel upon an accused who does not want counsel. Moore v. State of Michigan, 355 U.S. 155, 161, 78 S.Ct. 191, 2 L.Ed.2d 167. But in such a situation, it should affirmatively appear of record, and preferably not merely in a stenographic transcript, that the accused was offered counsel and that he rejected the offer and thereby waived his right to counsel. Carnley v. Cochran, supra, 369 U.S. 515, 82 S.Ct. 884. This is true, of course, in proceedings before the review division.

In the first instance, the state has the burden of proving that an offer of counsel was made and rejected. Carnley v. Cochran, supra. Thereupon, it becomes the burden of the defendant to show that the rejection was not intelligently and understandingly made and did not, therefore, constitute a waiver. Carnley v. Cochran, supra, 516, 82 S.Ct. 884; Moore v. State of Michigan, supra.

Cases such as United States v. Cone, 354 F.2d 119 (2d Cir.), and United States v. Robinson, 354 F.2d 109 (2d Cir.), relied on by the defendant, are concerned with the right to counsel during police questioning, after arrest but prior to trial. They have nothing to do with the right to counsel during an integral, even though optional, part of a post conviction sentencing procedure, which is what is involved in the instant appeal.

Because the court below felt that the plaintiff was not entitled to be provided with counsel before the sentence review division in any event, it made no...

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  • State v. Nardini
    • United States
    • Supreme Court of Connecticut
    • May 11, 1982
    ...149 Conn. 697, 183 A.2d 626. It thus gives him an optional de novo hearing as to the punishment to be imposed. Consiglio v. Warden, 153 Conn. 673, 676-77, 220 A.2d 269 (1966). It meets the complaints that gave birth to the Sentence Review Act by providing a judicial body with discretionary ......
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    ...Commonwealth ex rel. Miller v. Myers, 206 Pa.Super. 84, 211 A.2d 87 (Super.Ct.1965). See also Consiglio v. Warden, State Prison, 153 Conn. 673, 220 A.2d 269 (Sup.Ct.Err.1966); Gebhart v. Gladden, 243 Or. 145, 412 P.2d 29 (1966); King v. State, 157 So.2d 440 (Fla.Ct.App.1963) habeas corpus d......
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