Ghant v. Commissioner of Correction

• Decision Date: 28 November 2000
• Docket Number: (SC 16256)
• Citation: 255 Conn. 1,761 A.2d 740
• Court: Connecticut Supreme Court
• Parties: JAMES X. GHANT v. COMMISSIONER OF CORRECTION

255 Conn. 1

761 A.2d 740

JAMES X. GHANT v. COMMISSIONER OF CORRECTION

(SC 16256)

Supreme Court of Connecticut.

Argued May 31, 2000.

Officially released November 28, 2000.

Borden, Katz, Palmer, Sullivan and Vertefeuille, Js. Jo Anne Sulik, assistant state's attorney, with whom, on the brief, were Eugene Callahan, state's attorney, and David I. Cohen, supervisory assistant state's attorney, for the appellant (respondent).

James B. Streeto, deputy assistant public defender, for the appellee (petitioner).

Opinion

VERTEFEUILLE, J.

The principal issue in this appeal is whether under either the United States constitution or the constitution of Connecticut, counsel for a criminal defendant is required to inform the defendant of the right to appeal when the defendant has been convicted after pleading guilty. The respondent, the commissioner of correction (commissioner), appeals from the judgment of the habeas court restoring the appellate rights of the petitioner, James X. Ghant, due to his trial counsel's failure to advise him of his right to appeal.

The petitioner filed a petition for a writ of habeas corpus alleging ineffective assistance of counsel in several respects, including his trial counsel's failure to advise the petitioner of the right to appeal from the judgment of conviction after his guilty plea. The habeas court concluded that the petitioner's trial counsel was required to inform him of his appellate rights and that counsel's failure to do so prejudiced the petitioner by depriving him of his right to appeal. The habeas court therefore restored the petitioner's right to appeal. Pursuant to General Statutes § 52-470 (b), the commissioner appealed to the Appellate Court from the judgment of the habeas court and, we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. We reverse the judgment of the habeas court.

The following brief procedural history is necessary for an understanding of this appeal. On June 2, 1988, the petitioner was charged with murder in violation of General Statutes § 53a-54a.¹ Following a hearing, the trial court found probable cause for the charge of murder. Subsequently, pursuant to a plea agreement with the state, the petitioner entered a plea of guilty to the charge of murder under the Alford doctrine.² The state agreed to a sentence of thirty years incarceration while allowing the petitioner the right to argue for a lesser sentence. On March 29, 1989, the petitioner was sentenced to a total of thirty years incarceration. The petitioner is currently serving that sentence in the custody of the commissioner.

The habeas court found the following facts concerning the petitioner's legal representation. On the day of the probable cause hearing, the petitioner's counsel filed an appearance as a special public defender on behalf of the petitioner. Between the date of the probable cause hearing and the date of entering the plea, counsel met with the petitioner several times to discuss the charges and the evidence. The petitioner maintained that he was not involved in the crime. After conducting an investigation and participating in two pretrial conferences, counsel was offered a disposition by the state that called for a thirty year sentence with a right to argue for a lesser sentence. Counsel recommended this disposition to the petitioner, because, as counsel testified, "`there was really no evidence to support the denial of his involvement.'" The state had at least one eyewitness, as well as an incriminating statement that the petitioner had made to his cousin. The petitioner ultimately accepted the plea bargain.

On February 1, 1989, the petitioner entered a plea of guilty to the charge of murder under the Alford doctrine. At the hearing on the plea and before accepting the plea, the trial court canvassed the petitioner, and found that there was a factual basis for the plea and that it was made "`knowingly, intelligently and voluntarily with a full understanding of the crimes charged, their possible penalties, [and] after adequate and effective assistance of counsel.'"

From the time that the plea was accepted until the time of sentencing, the petitioner did not discuss a withdrawal of his guilty plea with counsel. In addition, from the time that the guilty plea was entered until the hearing on the habeas petition, counsel and the petitioner never discussed the petitioner's right to appeal. Several years after the conviction, however, the petitioner's sister contacted counsel to discuss withdrawing the petitioner's plea. Counsel advised the petitioner's sister to contact the official court reporter, obtain a copy of the transcript of the plea canvass and hire another lawyer.

Thereafter, the petitioner filed this petition for a writ of habeas corpus, which was subsequently amended. The amended petition contained four claims for relief, one of which is relevant to the certified issue before this court. The petitioner alleged that he was deprived of his statutory right to appeal and his due process rights in that he had not been informed of the right to appeal from the judgment of conviction.³

After a hearing, the habeas court concluded: "Because the court never informed the petitioner at his sentencing that he had the right to appeal, it was counsel's obligation, as a reasonably competent defense attorney, to make sure the petitioner was fully informed of his rights. Because counsel failed to do so, the petition[er] was unable to take advantage of his rights and file a timely appeal.... Thus, counsel's deficiencies prejudiced the petitioner by depriving him of his entire right to appeal. The petitioner has met his burden of establishing that he was prejudiced by counsel's deficient performance." (Citation omitted.) Accordingly, the habeas court restored the petitioner's appellate rights. Pursuant to § 52-470 (b),⁴ the commissioner filed a petition for certification to appeal the habeas court's decision, which was granted by the habeas court. This appeal followed.

I

The commissioner contends that the habeas court improperly determined that the sixth amendment⁵ right to effective assistance of counsel mandates that a reasonably competent defense attorney inform a criminal defendant of the right to appeal from a guilty plea. The commissioner posits that counsel is obligated to provide such advice only when either the defendant specifically asks about his appellate rights or when the circumstances show that the defendant would have benefited from such advice. We agree with the commissioner.

When reviewing the decision of a habeas court, the facts found by the habeas court "may not be disturbed unless the findings were clearly erroneous." Copas v. Commissioner of Correction, 234 Conn. 139, 152, 662 A.2d 718 (1995). The issue, however, of "[w]hether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. Strickland v. Washington, [466 U.S. 668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. As such, that question requires plenary review by this court unfettered by the clearly erroneous standard." Copas v. Commissioner of Correction, supra, 152-53.

A

After the initial briefs of both parties were filed in this case, the United States Supreme Court decided Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000). In Roe, the Supreme Court decided an issue nearly identical to that which is presented in this appeal, thus resolving a split of authority among the federal and state courts on the issue. Roe has clarified the applicable standard of review under the federal constitution in the determination of whether counsel is ineffective in failing to apprise a defendant of the right to appeal from a guilty plea. The Supreme Court held that, in such a case, counsel has a constitutional obligation to advise a defendant of appeal rights when either (1) the defendant has reasonably demonstrated to counsel his or her interest in filing an appeal, or (2) a rational defendant would want to appeal under the circumstances. Id., 480.

In Roe, the defendant pleaded guilty to second degree murder. Id., 473. At his sentencing hearing, the trial judge advised the defendant that he had sixty days within which to file his appeal. Id., 474. His counsel wrote the notation, "`bring appeal papers'" in her file, but no notice of appeal was filed within the appeal period. The defendant subsequently attempted to file an appeal. Id. Because the time limit to appeal had lapsed, however, his attempt was rejected. He thereafter unsuccessfully sought state habeas relief. The defendant then filed a habeas petition in the federal District Court, alleging ineffective assistance of counsel in violation of the sixth amendment to the federal constitution based on his attorney's failure to file a notice of appeal after promising to do so. Id.

The District Court denied the habeas relief, but the Court of Appeals for the Ninth Circuit reversed, holding that the defendant was entitled to relief, provided that he could show that counsel's failure to file the appeal was without the defendant's consent. Id., 475-76. The United States Supreme Court reversed the judgment of the Court of Appeals, rejecting a bright line rule that counsel, after consulting with the defendant regarding an appeal, must file a notice of appeal unless the defendant instructs otherwise. Id., 478.

The Supreme Court began its decision in Roe with a review of Strickland v. Washington, supra, 466 U.S. 687, in which the court had held that criminal defendants have a sixth amendment right to "reasonably effective" legal assistance. Under Strickland, a defendant claiming ineffective assistance of counsel must demonstrate that (1) "counsel's representation fell below an objective standard of reasonableness"; id., 688; and (2) counsel's deficient performance prejudiced the defendant in that there was a reasonable...