D'Amico v. Manson

• Decision Date: 15 May 1984
• Court: Connecticut Supreme Court
• Parties: Joseph S. D'AMICO v. John R. MANSON, Commissioner of Correction.

Page 543

476 A.2d 543

193 Conn. 144

Joseph S. D'AMICO v. John R. MANSON, Commissioner of Correction.

Supreme Court of Connecticut.

Argued Feb. 8, 1984.

Decided May 15, 1984.

John R. Williams, New Haven, for appellant (plaintiff).

Julia D. Dewey, Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., Michael Dearington, Asst. State's Atty., and Michael Stern, law student intern, for appellee (defendant).

Before PETERS, ARTHUR H. HEALEY, SHEA, GRILLO and BIELUCH, JJ.

SHEA, Associate Justice.

The plaintiff has appealed from the denial of his habeas corpus petition which sought to vacate his pleas of guilty to felony murder in violation of General Statutes § 53a-54c and assault in the second degree in violation of General Statutes § 53a-60 as well as his convictions of those offenses. In accordance with the terms of a sentencing recommendation agreed upon at the time the pleas were accepted, the court imposed concurrent sentences of imprisonment for not less than twenty years nor more than life on the murder charge and for not less than two and one-half nor more than five years on the assault charge. As the basis for the relief sought the plaintiff alleged (1) that he was mentally incompetent both at the time he pleaded guilty and at the time he was sentenced; (2) that the trial court failed to question him sufficiently to insure a knowing, voluntary and intelligent waiver of his right to stand trial; and (3) that his failure to appeal from the convictions resulted from his ignorance and was not a deliberate bypass of that procedure. The habeas court, O'Neill, J., decided each of these claims against the plaintiff. Although we disagree with the finding that the plaintiff knowingly waived his right to appeal, we agree with the resolution of the remainder of the plaintiff's claims. Accordingly, we find no error in the judgment denying the petition.

I

The habeas court found "no credible evidence that [the plaintiff] did not knowingly, voluntarily and intelligently waive his right to appeal...." This finding implies a deliberate bypass of our established appellate procedure on the part of the plaintiff and would, if not clearly erroneous, preclude his resort to habeas corpus in respect to any claims which could have been raised on appeal, such as the alleged deficiencies in the court's interrogation of him prior to acceptance of the guilty plea. Turcio v. Manson, 186 Conn. 1, 3, 439 A.2d 437 (1982); McClain v. Manson, 183 Conn. 418, 433, 439 A.2d 430 (1981); Cajigas v. Warden, 179 Conn. 78, 81, 425 A.2d 571 (1979). "[T]he petitioner must allege and prove in the trial court that there has not been a deliberate bypass of the orderly procedure of a direct appeal to this court." ¹ Turcio v. Manson, supra, 3. This principle has been modified, however, to the extent of requiring that the record before us must disclose some reasonable basis for concluding that a convicted person has intelligently, understandingly and voluntarily waived his statutory right to appeal. Staton v. Warden, 175 Conn. 328, 335, 398 A.2d 1176 (1978).

Such a significant protection of liberty as a right to appeal made available to all persons convicted of crimes, must be viewed as fundamental, although its basis is statutory rather than constitutional. Coppedge v. United States, 369 U.S. 438, 441, 82 S.Ct. 917, 81 L.Ed.2d 21 (1962); Nance v. United States, 422 F.2d 590, 592 (7th Cir.1970). In the exercise of such a right, invidious discriminations, such as between rich and poor, implicate constitutional guaranties of due process and equal protection of the laws. Douglas v. California, 372 U.S. 353, 355, 83 S.Ct. 814, 9 L.Ed.2d 811, reh. denied, 373 U.S. 905, 83 S.Ct. 1288, 10 L.Ed.2d 200 (1963); Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956). Since the state has established an appellate forum, "these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts." Rinaldi v. Yeager, 384 U.S. 305, 310, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966); see Blackledge v. Perry, 417 U.S. 21, 25, 94 S.Ct. 2098, 2101, 40 L.Ed.2d 628 (1974); Chaffin v. Stynchcombe, 412 U.S. 17, 24 n. 11, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973); Staton v. Warden, supra, 334, 398 A.2d 1176.

A waiver of such a fundamental right can be found only where it is clearly established that there has been "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); Talton v. Warden, 171 Conn. 378, 384, 370 A.2d 965 (1976). In the original statement of the "deliberate bypass" doctrine, ² which was formulated as a basis for denial of federal habeas corpus relief, this classic definition of waiver was made the controlling standard. Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963). Despite the later development of more restrictive "cause" and "prejudice" criteria for access to federal habeas corpus relief by a state prisoner; Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783, reh. denied, 456 U.S. 1001, 102 S.Ct. 2286, 73 L.Ed.2d 1296, reh. denied, 457 U.S. 1141, 102 S.Ct. 2976, 73 L.Ed.2d 1361 (1982); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); this court has continued to apply the test of "an intentional relinquishment or abandonment of a known right or privilege" in deciding whether a state habeas corpus petitioner has abandoned his right of appeal. Turcio v. Manson, supra, 3; McClain v. Manson, supra, 183 Conn. 428 n. 15, 439 A.2d 430; Staton v. Warden, supra, 175 Conn. 334, 398 A.2d 1176. We have insisted that the record before us "affirmatively disclose that the plaintiff's decision to waive his right to appeal was voluntarily, knowingly and intelligently made." Staton v. Warden, supra, 335, 398 A.2d 1176.

The evidence presented to the habeas court, consisting of the defendant's testimony and the transcripts of the proceedings in the trial court, O'Sullivan, J., when the guilty plea was accepted and sentence was imposed, does not satisfy this standard for an effective waiver of the right of appeal. The plaintiff testified that he first learned he had a right to appeal his convictions upon pleas of guilty within the preceding year as a result of a conversation with another prison inmate. On cross-examination he admitted that he had been arrested and convicted on criminal charges many times before and was familiar with that process. There was, however, no evidence that the plaintiff was aware of the right to appeal a conviction after a guilty plea. The transcript of the sentencing proceeding in the trial court indicates that he was not informed of his right to take such an appeal. Our rule of practice, then in effect, Practice Book, 1963, § 2356, required notification of the right to appeal a conviction only after a trial and was inapplicable to a conviction resulting from a guilty plea. ³ Ordinarily the inaction of a defendant who has been properly notified of his right to appeal would support a finding of waiver. In previous cases where we have found a deliberate bypass of the appellate process there has been evidence that the defendant was aware of his right to appeal his conviction. Morin v. Manson, 192 Conn. 576, 581, 472 A.2d 1278 (1984); McClain v. Manson, 183 Conn. supra, 430, 439 A.2d 430; Blue v. Robinson, 173 Conn. 360, 370, 377 A.2d 1108 (1977). Although the trial court was not bound to credit the testimony of the plaintiff in this case, in the absence of some indication in the record before us that the plaintiff was aware of his right to appeal, there is nothing to support the finding of waiver made by the trial court and it is clearly erroneous. See Montgomery v. Hopper, 488 F.2d 877, 879 (5th Cir.1973); Blaylock v. Fitzharris, 455 F.2d 462, 463 (9th Cir.1972); Practice Book § 3060D.

II

The only evidence presented by the plaintiff in support of his claim that he was mentally incompetent at the time he pleaded guilty and at the time of sentence was his own testimony that during the nineteen months of confinement which elapsed between his arrest and conviction he was receiving psychiatric treatment, including injections of some unspecified medication. He described the effect of the medication upon him: "It just spaced me out. I don't know how to explain it. I couldn't read. I couldn't lie down without my nerves jumping up and down, and I was sort of disoriented." He testified that he was not receiving any medication at the time he was sentenced but could not recall when he had received the last injection. There was no testimony of any psychiatrist nor were any records introduced to indicate the nature and extent of the plaintiff's mental problem, or the identity or effect upon him of any medication he was receiving. At the sentencing proceeding his attorney did mention to the trial court that "during a good portion of the pretrial period there were substantial questions about his competency." He said that the plaintiff had been "medicated a good deal of the time and communication between him and me was rather limited." The attorney also remarked that the plaintiff had "a good mind," was fluent in Spanish, and was intent upon using his prison time to best advantage by obtaining some education while he was confined. He declared that his client felt the sentencing recommendation was fair and had asked him to convey to the victims "his remorse over what has happened."

The habeas court concluded that the plaintiff had not sustained his burden of proving that he was mentally incompetent at the time of plea or of sentence. The court relied upon the "clear and intelligent responses" given by the plaintiff to the interrogation which preceded acceptance of his guilty plea. With respect to competency at the sentencing proceeding, the court found no suggestion in the remarks of counsel indicating "that medication...