Gipson v. Commissioner of Correction, (AC 17745)

Decision Date10 August 1999
Docket Number(AC 17745)
Citation54 Conn. App. 400,735 A.2d 847
CourtConnecticut Court of Appeals
PartiesBERNARD GIPSON v. COMMISSIONER OF CORRECTION

Lavery, Schaller and Cretella, Js. Michael L. Moscowitz, special public defender, for the appellant (petitioner).

Michele Lukban, assistant state's attorney, with whom, on the brief, were James Thomas, state's attorney, and Rosita Creamer, assistant state's attorney, for the appellee (respondent).

Opinion

SCHALLER, J.

The petitioner, Bernard Gipson, appeals from the habeas court's denial of his amended petition for a writ of habeas corpus. The petitioner claims that the habeas court improperly denied his amended petition because he was deprived of the effective assistance of appellate counsel when, following our affirmance of his conviction, his attorney failed to file a petition for certification with our Supreme Court and neglected to inform him that he could file a pro se petition for certification. As a result, the petitioner claims that he was deprived of his only opportunity to seek review of our affirmance of his conviction. We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to a resolution of this appeal. After a jury trial, the petitioner was convicted of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3) and sentenced to fourteen years imprisonment, execution suspended after twelve years, and five years probation. The petitioner appealed to this court claiming that the trial court had improperly denied his motion to suppress a witness' pretrial identification. On May 16, 1995, we affirmed the judgment of conviction.1

On May 2, 1997, the petitioner filed an amended petition for a writ of habeas corpus, claiming that he was deprived of the effective assistance of appellate counsel in violation of the sixth and fourteenth amendments to the federal constitution. The petitioner alleged that appellate counsel failed to brief adequately the claims raised on direct appeal and neglected to file a petition for certification with our Supreme Court seeking discretionary review of this court's decision.

On October 17, 1997, following an evidentiary hearing, the habeas court denied the petitioner's amended petition for a writ of habeas corpus. On that same date, the habeas court granted the petitioner's petition for certification to appeal and his application for a waiver of fees, costs and expenses. Additional facts will be set forth where necessary. As a threshold matter, we must determine whether the petitioner, as an indigent, was entitled to the assistance of appellate counsel in filing a petition for certification with our Supreme Court, seeking discretionary review of a final judgment from this court. The respondent contends that the petitioner's claim of ineffective assistance of appellate counsel, as well as the habeas court's decision, erroneously presupposes the existence of a right to counsel for discretionary state appeals. Specifically, the respondent claims that neither the federal constitution nor state statute provides the petitioner with a right to counsel in filing a petition for certification with our Supreme Court, seeking discretionary review. Because a claim of ineffective assistance of counsel must be predicated on an underlying right to the assistance of counsel; Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S. Ct. 1300, 71 L. Ed. 2d 475 (1982) (per curiam); Blakenship v. Johnson, 118 F.3d 312, 316 (5th Cir. 1997); we must first determine whether the petitioner was entitled to the assistance of counsel.

I

The petitioner first claims that he has a federal constitutional right to the assistance of appellate counsel in pursuing a discretionary state appeal.2 The respondent contends that precedent unequivocally establishes that the petitioner does not have a constitutional right to counsel in the present case. We agree with the respondent.

"Although there is no constitutional right of appeal; Abney v. United States, 431 U.S. 651, 656, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977); the right to appeal, once granted, invokes so significant a protection of liberty that it must be made available to all persons convicted of crimes. Ross v. Moffitt, 417 U.S. 600, 607, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974); Coppedge v. United States, 369 U.S. 438, 441, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962) .... 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)...." (Citations omitted; internal quotation marks omitted.) Gaines v. Manson, 194 Conn. 510, 515-16, 481 A.2d 1084 (1984).

In Douglas v. California, supra, 372 U.S. 356-58, the Supreme Court held that the fourteenth amendment to the federal constitution mandates that states provide counsel for indigents on their first appeal as of right. The court specified, however, that it was "dealing only with the first appeal, granted as a matter of right to rich and poor alike .... We need not now decide whether California would have to provide counsel for an indigent seeking a discretionary hearing from the California Supreme Court after the District Court of Appeal had sustained his conviction...." Id., 356.

In Ross v. Moffitt, supra, 417 U.S. 603, an indigent received the assistance of counsel in appealing his conviction to the state's intermediate appellate court. After the intermediate appellate court affirmed the conviction, the state denied the indigent's request for counsel to assist him in petitioning the state Supreme Court for discretionary review. Id. The Supreme Court stated that "North Carolina has followed the mandate of Douglas v. California, supra, , and authorized appointment of counsel for a convicted defendant appealing to the intermediate Court of Appeals, but has not gone beyond Douglas to provide for appointment of counsel for a defendant who seeks ... discretionary review in the Supreme Court of North Carolina . . . ." Ross v. Moffitt, supra, 614. The court held that neither the due process nor the equal protection clauses of the fourteenth amendment required the state to provide counsel for an indigent seeking discretionary review before the state supreme court. Id., 610-12.

In the present case, in accordance with Douglas v. California, supra, 372 U.S. 356-58, the petitioner received the assistance of counsel in filing a direct appeal with this court. The petitioner does not dispute that our Supreme Court's review of his petition for certification is discretionary. See General Statutes § 51-197f;3 Practice Book §§ 84-14 and 84-2.5 The decision in Ross establishes that the fourteenth amendment does not require Connecticut to provide the petitioner with the assistance of counsel in pursuing a discretionary state appeal.

In Wainwright v. Torna, supra, 455 U.S. 587-88, the Supreme Court held that because a defendant did not have a federal constitutional right to the assistance of counsel in pursuing a discretionary state appeal, he could not be deprived of the effective assistance of counsel when his attorney failed to file an application in a timely manner for discretionary review with the Florida Supreme Court. Wainwright establishes that a claim of ineffective assistance of counsel must be predicated on an underlying right to the assistance of counsel. Id.; Blakenship v. Johnson, supra, 118 F.3d 316. We conclude that because the petitioner has no federal constitutional right to counsel, he cannot be deprived of the effective assistance of counsel on constitutional grounds.

II

The petitioner next claims that he has a statutory right to counsel in filing a petition for certification with our Supreme Court.6 The petitioner appears to argue, in essence, that the existence of his certification rights under § 51-197f and Practice Book § 84-1 confer a statutory right to appeal, which cannot be waived without his consent.7 The petitioner apparently presumes the existence of a right to counsel for assistance with the certification process. The respondent contends that, although Public Acts 1965, No. 178, § 1, which was codified in General Statutes § 54-81a (repealed by Public Acts 1974, No. 74-317, § 12), authorized public defenders to represent indigents in discretionary state appeals, the legislature demonstrated its intent not to require the providing of counsel for such appeals by eliminating that provision with the repeal of § 54-81a and the adoption of General Statutes § 51-296. We agree with the respondent's position. On the basis of our close analysis of § 51-296, in light of the pertinent legislative history, we are convinced that our legislature has not provided a statutory right to counsel for discretionary appeals since the adoption of § 51-296 in 1974, in which the right to counsel for discretionary appeals to our Supreme Court was eliminated. Given the legislature's action and the present language of § 51-296, we must conclude that the petitioner's claim has no merit.

In reaching our conclusion that § 51-296 does not provide the petitioner with the right to the assistance of counsel in filing a petition for certification with our Supreme Court, we rely on the language of § 51-296, the relationship of that statute to legislation that preceded it, the legislative history of § 51-296 and the relative purposes of discretionary appeals to our Supreme Court from judgments of the Appellate Court as opposed to appeals as of right to either court. In interpreting statutes, our analysis is guided by well established principles of statutory construction. "[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...

To continue reading

Request your trial
8 cases
  • Franko v. Comm'r of Corr.
    • United States
    • Connecticut Court of Appeals
    • May 17, 2016
    ...36 Conn. App. 695, 705, 652 A.2d 1050, cert. denied, 233 Conn. 912, 659 A.2d 183 (1995); Gipson v. Commissioner of Correction, 54 Conn. App. 400, 437, 735 A.2d 847 (1999) (Lavery, J., concurring), rev'd on other grounds, 257 Conn. 632, 778 A.2d 121 (2001); it should not speculate as to tria......
  • Holley v. Commissioner of Correction
    • United States
    • Connecticut Court of Appeals
    • March 6, 2001
    ...for review. "The burden of securing an adequate record for appellate review rests with the petitioner." Gipson v. Commissioner of Correction, 54 Conn. App. 400, 438, 735 A.2d 847, cert. granted on other grounds, 251 Conn. 915, 740 A.2d 864 (1999). The petitioner cannot prevail on his claim ......
  • Gipson v. Comm'r of Correction
    • United States
    • Connecticut Supreme Court
    • August 21, 2001
    ...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......
  • State v. Casiano
    • United States
    • Connecticut Supreme Court
    • May 29, 2007
    ...assistance of counsel by virtue of his appointed attorney's failure to file such a petition. See Gipson v. Commissioner of Correction, 54 Conn.App. 400, 403, 406, 421, 735 A.2d 847 (1999), rev'd, 257 Conn. 632, 778 A.2d 121 14. "Connecticut has recognized two types of circumstances in which......
  • Request a trial to view additional results
1 books & journal articles
  • 1999 Connecticut Appellate Review
    • United States
    • Connecticut Bar Association Connecticut Bar Journal No. 74, 1999
    • Invalid date
    ...195 (1999). 99. Wesley W. Horton and Alexandra Davis, 1991 Connecticut Appellate Review, 66 CONN.B.J. 1, 8 (1992). 100. Id. at 9. 101. 54 Conn. App. 400, 735 A.2d 847, cert. granted, Conn. 915, 740 A.2d 864 (1999). 102. 52 Conn. App. 85, 726 A.2d 119, cert. granted, 248 Conn. 913, 734 A.2d ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT