Fredericks v. Reincke
| Decision Date | 17 March 1965 |
| Citation | 208 A.2d 756,152 Conn. 501 |
| Court | Connecticut Supreme Court |
| Parties | Robert FREDERICKS v. Frederick G. REINCKE, Warden of Connecticut State Prison. Supreme Court of Errors of Connecticut |
S. William Bromson, Special Public Defender, with whom, on the brief, was Philip A. Post, West Hartford, for the appellant-appellee (plaintiff).
George D. Stoughton, Asst. State's Atty., with whom, on the brief, were John D. LaBelle, State's Atty., and Harry W. Hultgren, Jr., Asst. State's Atty., for the appellee-appellant (state).
Before KING, C. J., and MURPHY, ALCORN, COMLEY and SHANNON, JJ.
The plaintiff, with John H. McGruder, was convicted on February 10, 1961, of the crime of robbery with violence by the jury in a trial before the Superior Court in Hartford. Subsequently, he pleaded guilty to being a second offender, the plea was later erased, and he was sentenced on March 3, 1961, to not less than seven nor more than fourteen years in the state prison. On April 16, 1963, he filed a petition for a writ of habeas corpus, which was issued, and, at the hearing thereon, he claimed that his constitutional right to counsel to perfect his appeal to this court had been violated. The plaintiff is an indigent. He alleged that his education did not go beyond the eighth grade and that he is unable to prosecute an appeal pro se. After he had partially presented his case, the court continued the hearing and appointed a special public defender to represent him at an adjourned hearing. The parties filed a stipulation of facts, and the habeas corpus was then heard do novo. The court concluded that under Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, decided on March 18, 1963, the plaintiff had been denied his right to counsel to perfect his appeal and directed his discharge from prison unless, at his further request, counsel was appointed to pursue his appeal and necessary extensions of time in which to perfect the appeal were granted. The defendant has appealed from the judgment, and the plaintiff has filed a cross appeal.
At his trial, the plaintiff was represented by a special public defender, who was appointed by the court when it appeared that there might be a conflict of interest between the plaintiff and McGruder, whom the public defender represented. General Statutes § 54-81; Practice Book § 472. The special public defender filed an appeal to this court for the plaintiff on March 17, 1961. General Statutes § 52-259a eliminated the requirement for the payment of court costs and other fees, and § 54-81 provided for compensation to the special public defender in taking the appeal and for necessary disbursements in connection therewith. The special public defender obtained an extension of time in which to perfect the appeal. Thereafter, he notified the plaintiff that the appeal would be frivolous and did nothing further about it. A transcript of the evidence was provided the plaintiff. The plaintiff filed a motion for the appointment of counsel which was denied on September 26, 1961. Extensions of time until November 1, 1961, in which to perfect the appeal were made. On May 23, 1962, this court granted a motion to dismiss the appeal for failure to prosecute after a hearing at which the plaintiff stated in open court the reasons on which he based his appeal. Basically, he maintained that he was innocent and should not have been convicted. He made no claim that he was inadequately or improperly represented by the special public defender and failed to indicate any claim of error which appeared to warrant review. At that time, the United States Supreme Court had not handed down the opinion in the Douglas case, on which the plaintiff now bases his claim to illegal detention, and, therefore, the plaintiff did not then claim that the denial of his motion for the appointment of counsel to perfect and pursue his appeal, after his trial counsel had concluded that an appeal would be frivolous, was in violation of his constitutional rights.
In Douglas, the court (p. 356, 83 S.Ct. 814) limited its decision to one issue the right of an indigent convicted of a crime to the assistance of counsel on the initial appeal afforded to persons upon criminal conviction, and held that where the merits of the one and only appeal an indigent has of right are decided without the benefit of counsel, an unconstitutional line has been drawn between the rich and the poor in violation of the equal protection of the fourteenth amendment. The defendant, in his brief and argument, expresses the fear that if the plaintiff's claim to counsel for his appeal is sustained, it will be necessary to call the roll of attorneys until one can be found who will be willing to process the appeal even though it is groundless. We do not share that apprehension. Douglas does not require such extreme performance. Applied to the plaintiff, it must be construed to mean that when the special public defender who conducted the plaintiff's defense at his trial came to the conclusion that he could not conscientiously proceed with the appeal which he had taken to preserve the plaintiff's rights, and for which he had obtained an extension of time within which to file the papers essential to the processing of the appeal, and had notified both the plaintiff and the court of his decision, the plaintiff was entitled to have competent counsel appointed to represent him on the appeal. Lacking clairvoyance, the trial court committed error in denying the plaintiff's motion for counsel on appeal.
The decision in Douglas requires that an appointment of counsel now be made so that the plaintiff may have his right to the assistance of counsel on appeal. If, however, the new counsel, after interviewing the plaintiff and his witnesses, consulting with trial counsel, examining the trial record and conducting such investigation as he deems necessary to ascertain the merits of the appeal, comes to the conclusion that there is no substantial error which he can assign on appeal and so advises the plaintiff and the trial court, the constitutional requirement is satisfied and the plaintiff could not demand that the trial court find and appoint other counsel who will advise an appeal. Willoughby v. State, 242 Ind. 183, 192, 177 N.E.2d 465 (quoting from State ex rel. White v. Hilgemann, 218 Ind. 572, 578, 34...
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...was not 'final.' Nor could the trial court properly limit the grounds upon which the appeal might be predicated. Fredericks v. Reincke, 152 Conn. 501, 508, 208 A.2d 756. Tehan and the second O'Connor case were two of the earliest of a great many recent decisions by the United States Supreme......
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