Galland v. Bronson, 13039

• Decision Date: 07 July 1987
• Docket Number: No. 13039,13039
• Citation: 527 A.2d 1192,204 Conn. 330
• Court: Connecticut Supreme Court
• Parties: Donald GALLAND v. George BRONSON, Warden.

Page 1192

527 A.2d 1192

204 Conn. 330

Donald GALLAND v. George BRONSON, Warden.

No. 13039.

Supreme Court of Connecticut.

Argued May 1, 1987.

Decided July 7, 1987.

Jon C. Blue, Asst. Public Defender, with whom, on brief, was Joette Katz, Public Defender, for appellant (petitioner).

Ronald D. Fasano, Asst. State's Atty., with whom, on brief, was Arnold Markle, State's Atty., for appellee (respondent).

Before PETERS, C.J., and HEALEY, SHEA, CALLAHAN and DUPONT, JJ.

SHEA, Associate Justice.

This is an appeal from the denial by the trial court of a petition for a writ of habeas corpus. The petitioner, Donald Galland, ¹ was convicted after a trial to a jury of two counts of robbery in the first degree in violation of General Statutes § 53a-134(a)(4). The petitioner directly appealed to this court from the judgment of guilty, raising issues that principally related to his election to represent himself at trial. State v. Gethers, 193 Conn. 526, 480 A.2d 435 (1984). ² Following the release of this court's decision upholding the judgment below, the petitioner filed his petition for a writ of habeas corpus, alleging that his confinement was illegal because a conviction of two counts of robbery cannot arise from a single bank robbery. Although the state, in its motion to quash, alleged that the petitioner properly should have raised this issue in his direct appeal, the trial court denied the petition on its merits. Because we find error in the court's failure to hold an evidentiary hearing on the issue of whether the petitioner deliberately bypassed our appellate procedure with respect to the claim he now raises collaterally, we do not address the merits of that claim.

The crimes of which the defendant was found guilty arose out of an armed robbery of a New Haven bank on October 1, 1980. The defendant was charged with two counts of robbery in the first degree "by virtue of having robbed two bank tellers at the same bank." State v. Gethers, supra, at 537, 480 A.2d 435. In his appeal from the conviction, the defendant wrote his main brief, but received assistance in writing his reply brief from his standby appellate counsel. Both he and his standby counsel participated in the oral argument before this court. Id., at 527 n. 2, 480 A.2d 435.

On September 26, 1984, approximately three months after this court had released its decision in State v. Gethers, the petitioner filed his pro se petition for a writ of habeas corpus, alleging "two counts of robbery out of one bank robbery is illegal." In his habeas brief, the petitioner, through counsel, contended that such a conviction violates the double jeopardy clause of the fifth amendment to the United States constitution. In response to question 3b on the petition form, "Did you appeal the issue you claim in this petition and if not, why?" the petitioner stated, "No, I just discovered it." In his brief, the respondent asserts that the "petitioner's real reason for subsequently raising this issue by writ of habeas corpus related to the decision of the sentence review panel which noted that the petitioner's exposure at the time of sentencing was twenty to forty years; an apparent factor in their affirming his sentence. Not only was the panel's decision affixed to appellant's petition and his pro se brief to the habeas court, but petitioner made numerous references to it during discussions with the habeas court."

In this appeal from the denial of the petition, ³ the petitioner claims that the trial court erred in (1) not holding an evidentiary hearing on the merits of his double jeopardy claim, and (2) concluding that a person may be convicted of two counts of robbery where he has taken the bank's money from two tellers. Anticipating the necessity for this court to address the jurisdictional issue of deliberate bypass, the petitioner further asserts that his failure to raise his claim in the direct appeal was not deliberate but resulted from his self-representation, and that, in any event, the issue cannot be resolved without an evidentiary hearing.

Because the issue of deliberate bypass is jurisdictional in nature, we must consider whether this appeal is properly before us. See Morin v. Manson, 192 Conn. 576, 579-80, 472 A.2d 1278 (1984); Cajigas v. Warden, 179 Conn. 78, 81, 425 A.2d 571 (1979). Jurisdictional issues must be resolved before a decision on the merits may be rendered. See Cahill v. Board of Education, 198 Conn. 229, 238, 502 A.2d 410 (1985); State v. Malkowski, 189 Conn. 101, 104-105, 454 A.2d 275 (1983). Thus, the decision of the trial court not to address the deliberate bypass issue, which the state had raised in its motion to quash, was erroneous. Cf. Pepe v. New Britain, 203 Conn. 281, 287-88, 524 A.2d 629 (1987); see also Practice Book § 4056. Nevertheless, if this court can properly decide the jurisdictional issue on the record before us, we can then proceed to review the decision of the trial court on the merits.

It is well established that habeas corpus cannot be used as an alternative to a direct appeal. Cajigas v. Warden, supra; Blue v. Robinson, 173 Conn. 360, 369, 377 A.2d 1108 (1977); Vena v. Warden, 154 Conn. 363, 365, 225 A.2d 802 (1966). A petitioner may raise federal constitutional claims in a collateral proceeding, however, if he first alleges and establishes by a preponderance of the evidence that he did not deliberately bypass the orderly procedure of direct appeal. Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963); Paulsen v. Manson, 193 Conn. 333, 337, 476 A.2d 1057 (1984); D'Amico v. Manson, 193 Conn. 144, 146-47, 476 A.2d 543 (1984). "The deliberate bypass rule serves two important functions: (1) it encourages a litigant to have all constitutional claims resolved in a single proceeding economizing the time and resources of all concerned parties and bringing the case to a conclusion; and (2) it prevents a prisoner from deliberately deferring his claims of unlawful confinement until a time when a new trial, if required as a result of the collateral proceeding, would be, for all practical purposes, impossible." Paulsen v. Manson, supra, 193 Conn. at 337-38, 476 A.2d 1057; State v. Rivera, 196 Conn. 567, 571, 494 A.2d 570 (1985).

We have noted that the apparent harshness of the deliberate bypass rule has been softened somewhat by "requiring that the record before us ... disclose some reasonable basis for concluding that a convicted person has intelligently, understandingly and voluntarily waived his statutory right to appeal." D'Amico v. Manson, supra; see Barlow v. Lopes, 201 Conn. 103, 108, 513 A.2d 132 (1986). Thus, it has been held that a finding of deliberate bypass cannot be made "unless there is an intentional relinquishment or abandonment of a known right or a privilege." Stubbs v. Smith, 533 F.2d 64, 69 (2d Cir.1976); see also Fay v. Noia, supra; Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The question of whether a petitioner has deliberately bypassed the orderly process of an appeal depends upon the varying facts in each case. See Fay v. Noia, supra, 372 U.S. at 440, 83 S.Ct. at 849; McClain v. Manson, 183 Conn. 418, 429, 439 A.2d 430 (1981); State v. Brown, 157 Conn. 398, 402, 254 A.2d 570 (1969).

Special considerations ordinarily obtain when a petitioner has proceeded pro se. It has been stated that, in such a case, "courts should review habeas petitions with a lenient eye, allowing borderline cases to proceed.... The justification for this policy is apparent. If the writ of habeas corpus is to continue to have meaningful purpose, it must be accessible not only to those with a strong legal background or the financial means to retain counsel, but also to the mass of uneducated, unrepresented prisoners." Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir.1983); cf. Meade v. Warden, 184 Conn. 597, 599, 440 A.2d 246 (1981); see generally note, "Developments in the Law--Federal Habeas Corpus," 83 Harv.L.Rev. 1038, 1173-78 (1970). On the other hand, it is true that the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law. Faretta v. California, 422 U.S. 806, 834-35 n. 46, 95 S.Ct. 2525, 2541 n. 46, 45 L.Ed.2d 562 (1975). In the context of the present case, the circumstances surrounding the...