Gipson v. Comm'r of Correction

• Decision Date: 21 August 2001
• Docket Number: No. SC,SC
• Citation: 778 A.2d 121,257 Conn. 632
• Court: Connecticut Supreme Court
• Parties: (Conn. 2001) BERNARD GIPSON v. COMMISSIONER OF CORRECTION 16216

778 A.2d 121 (Conn. 2001)

BERNARD GIPSON v. COMMISSIONER OF CORRECTION

No. SC 16216

THE SUPREME COURT OF THE STATE OF CONNECTICUT

Argued September 22, 2000

August 21, 2001

Counsel James J. Ruane, with whom, on the brief, was James O. Ruane, for the appellant (petitioner).

Michele C. Lukban, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and George Ferko, assistant state's attorney, for the appellee (respondent).

G. Douglas Nash, chief of legal services, and Gerard A. Smyth, chief public defender, filed a brief for the office of the chief public defender as amicus curiae.

McDonald, C. J., and Borden, Katz, Palmer and Vertefeuille, Js.¹

Opinion

Palmer, J.

The question posed by this certified appeal is whether an indigent criminal defendant has a right to the assistance of counsel in connection with the filing of a petition for certification seeking this court's discretionary review of a judgment of the Appellate Court upholding the defendant's conviction. The petitioner, Bernard Gipson, who is indigent, filed a petition for a writ of habeas corpus, claiming that he had been denied the effective assistance of counsel because his appellate counsel failed to file a petition for certification with this court challenging the Appellate Court's judgment upholding his conviction. The habeas court dismissed the habeas petition, concluding that the defendant had not been deprived of the effective assistance of counsel. The Appellate Court affirmed the judgment of the habeas court on the ground that the petitioner had no right to the assistance of counsel in connection with the filing of a petition for certification to this court. We conclude that the petitioner was entitled to such assistance under General Statutes § 51-296 (a) ² and, consequently, we reverse the judgment of the Appellate Court.

The following undisputed facts and procedural history are relevant to our resolution of this appeal. In 1994, a jury found the petitioner guilty of robbery in the first degree in violation of General Statutes § 53a134 (a) (3), and the trial court rendered judgment in accordance with the jury verdict. ³ The petitioner appealed from the judgment of conviction to the Appellate Court, claiming that the trial court improperly had denied his motion to suppress a witness' pretrial identification. The Appellate Court rejected the petitioner's claim without opinion and affirmed the judgment of conviction. State v. Gipson, 37 Conn. App. 932, 657 A.2d 730 (1995). The petitioner did not file a petition for certification to appeal to this court.

Thereafter, the petitioner filed an amended petition for a writ of habeas corpus, claiming that he had been deprived of the effective assistance of appellate counsel in violation of the sixth and fourteenth amendments to the United States constitution. In particular, the petitioner asserted that the attorney who had been appointed to represent him in his direct appeal to the Appellate Court improperly had failed to file a petition for certification to appeal to this court ⁴ pursuant to General Statutes (Rev. to 1995) § 51-197f ⁵ and Practice Book, 1978±n97, §§ 4126 ⁶ and 4127 ⁷ (now Practice Book §§ 84-1 and 84-2, respectively). On October 17, 1997, following an evidentiary hearing, the habeas court dismissed the petitioner's habeas petition on the ground that the petitioner had not established that, under the circumstances, his appellate counsel's failure to file a petition for certification constituted ineffective assistance of counsel. ⁸ The habeas court, however, granted the petitioner's petition for certification to appeal to the Appellate Court from the judgment of the habeas court ⁹ and also granted his application for a waiver of fees, costs and expenses.

On appeal from the judgment of the habeas court to the Appellate Court, the petitioner claimed that his appellate counsel's failure to file a petition for certification had deprived him of his right to the effective assistance of counsel under the sixth and fourteenth amendments to the United States constitution and under § 51-296 (a). The Appellate Court rejected the petitioner's appeal, concluding that the petitioner could not prevail because, as a threshold matter, he has no federal constitutional or state statutory right to the assistance of counsel in connection with the filing of a petition for certification. Specifically, the Appellate Court, relying on federal precedent, concluded that the federal constitutional right to counsel in criminal cases does not extend to discretionary state appeals. ¹⁰ Gipson v. Commissioner of Correction, 54 Conn. App. 400, 405±n406, 735 A.2d 847 (1999). The Appellate Court further concluded that § 51-296 does not provide an indigent defendant with a right to the assistance of counsel in connection with the filing of a petition for certification. Id., 407, 413, 421. Judge Lavery ¹¹ issued a concurring opinion in which he concluded, contrary to the holding of the Appellate Court majority, that § 51-296 does afford an indigent defendant the right to counsel in connection with the filing of a petition for certification. ¹² Id., 422 (Lavery, J., concurring).

We granted the petitioner's petition for certification limited to the issue whether a ''criminal defendant [has] a [state] ¹³ constitutional right to the assistance of counsel in connection with [the filing of] a petition for certification ....''Gipson v. Commissioner of Correction, 251 Conn. 915, 740 A.2d 864 (1999). We thereafter expanded the certified question, however, to include a second issue, namely, whether ''a criminal defendant [has] a state statutory right to the assistance of counsel in connection with [the filing of] a petition for certification . . . .'' Id. Essentially for the reasons set forth by Judge Lavery in his concurring opinion in Gipson v. Commissioner of Correction, supra, 54 Conn. App. 421±n 34, we conclude that, under § 51-296 (a), an indigent criminal defendant has a right to the assistance of counsel for purposes of filing a petition for certification seeking this court's review of a judgment of the Appellate Court affirming a trial court's judgment of conviction. ¹⁴ We, therefore, reverse the judgment of the Appellate Court and remand the case to that court for a determination of whether the habeas court properly rejected the petitioner's claim of ineffective assistance of appellate counsel. ¹⁵

Whether § 51-296 (a) affords an indigent criminal defendant the right to the assistance of counsel in connection with the filing of a petition for certification is a question of statutory interpretation that we review according to well settled principles. ''Statutory construction is a question of law and therefore our review is plenary. . . . [O]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.'' (Internal quotation marks omitted.) Rivera v. Commissioner of Correction, 254 Conn. 214, 238 n.23, 756 A.2d 1264 (2000).

''As with all issues of statutory interpretation, we look first to the language of the statute.'' In re Michaela Lee R., 253 Conn. 570, 583, 756 A.2d 214 (2000). Section 51-296 (a) provides in relevant part: ''In any criminal action . . . the court before which the matter is pending shall, if it determines after investigation by the public defender or his office that a defendant is indigent as defined under . . . chapter [887], ¹⁶ designate a public defender, assistant public defender or deputy assistant public defender to represent such indigent defendant . . . .'' Inasmuch as § 51-296 (a) contains no express reference to appellate proceedings, the focus of our inquiry necessarily involves the scope of the term ''any criminal action'' as it is used in that statutory subsection.

As the Appellate Court observed, ''the words 'any criminal action' are not defined in § 51-296 or chapter 887, nor is the meaning of those words readily apparent from their context ....''Gipson v. Commissioner of Correction, supra, 54 Conn. App. 409. It, therefore, ''is appropriate to look to the common understanding of the term . . . .'' (Internal quotation marks omitted.) Oxford Tire Supply, Inc. v. Commissioner of Revenue Services, 253 Conn. 683, 696, 755 A.2d 850 (2000); see also General Statutes § 1-1 (a). ¹⁷ We agree with the Appellate Court that the word ''any,'' for purposes of § 51-296 (a), connotes ''all'' or ''every.'' (Internal quotation marks omitted.) Gipson v. Commissioner of Correction, supra, 409 (''[t]he word any in statutes is generally used in the sense of all or every and its meaning is comprehensive in scope and inclusive in range'' [internal quotation marks omitted]). We, therefore, may presume that the legislature, in using the word ''any'' to modify the term ''criminal action,'' intended that term to be broad, rather than restrictive, in scope.

As this court previously has stated, ''the word 'action' has no precise meaning and the scope of proceedings which will be included within the term as used in the statutes depends upon the nature and purpose of the particular statute in question.'' Carbone v. Zoning Board of Appeals, 126 Conn. 602, 605, 13 A.2d 462 (1940); see also Isaac v. Mount Sinai Hospital, 210 Conn. 721, 730, 557 A.2d 116 (1989) (''[i]n a general sense the word action means the lawful demand of one's right in a court of justice; and in this sense it may be said to include any proceeding in such a court for the purpose of obtaining such redress as the law provides'' [internal quotation marks omitted]); Dayco Corp. v. Fred T. Roberts & Co., 192 Conn. 497, 502, 472 A.2d 780 ...