Lorthe v. Commissioner of Correction, 26354.

• Decision Date: 11 September 2007
• Docket Number: No. 26354.,26354.
• Citation: 931 A.2d 348,103 Conn.App. 662
• Court: Connecticut Court of Appeals
• Parties: Yves Henry LORTHE v. COMMISSIONER OF CORRECTION.

931 A.2d 348

103 Conn.App. 662

Yves Henry LORTHE v. COMMISSIONER OF CORRECTION.

No. 26354.

Appellate Court of Connecticut.

Argued March 20, 2007.

Decided September 11, 2007.

Damon A.R. Kirschbaum, special public defender, for the appellant (petitioner).

James A. Killen, senior assistant state's attorney, with whom, on the brief, was David I. Cohen, state's attorney, for the appellee (respondent).

DiPENTIMA, LAVINE and DUPONT, Js.

LAVINE, J.

This is an appeal from the judgment of the habeas court, J. Kaplan, J., sua sponte dismissing the petition for a writ of habeas corpus filed pro se by the petitioner, Yves Henry Lorthe. The petitioner claims that the court improperly granted the motion for leave to withdraw appearance (Anders motion)¹ filed by his special public defender and dismissed his petition for a writ of habeas corpus. We affirm the judgment of the habeas court.

On June 13, 2001, the trial court, Kavanewsky, J., sentenced the petitioner to twenty-seven years in the custody of the respondent, the commissioner of correction, pursuant to the petitioner's guilty plea to murder in violation of General Statutes § 53a-54a. On December 3, 2001, the petitioner filed pro se a petition for a writ of habeas corpus. In his preliminary statement, the petitioner alleged that his conviction was illegal because (1) he was denied the right to confront witnesses against him and the right to compulsory process to obtain witnesses to testify in his favor, (2) he was sentenced on a guilty plea that failed to comply substantially with the rules of practice, (3) he was not advised of the immigration consequences of his guilty plea in violation of General Statutes § 54-1j and the right to due process, and (4) all of the foregoing were a result of his having been denied the right to the effective assistance of counsel.

A special public defender, Kenneth Paul Fox, was appointed to represent the petitioner in the habeas court. Subsequently, Fox filed an Anders motion to withdraw his appearance because, after reviewing the matter, he had concluded that there was no credible basis to believe that the petitioner had received ineffective assistance of counsel and that his claims were frivolous and without merit. On April 21, 2004, after reviewing the petition for a writ of habeas corpus, the Anders motion and the petitioner's objection to it, the habeas court granted the Anders motion and sua sponte dismissed the petition for a writ of habeas corpus. In its memorandum of decision, the habeas court stated: "[T]he petitioner asserts ineffective assistance of counsel on the grounds that he was denied his right to confront adverse witnesses and was sentenced upon a guilty plea that did not comply with the relevant Practice Book provisions. . . . [T]he record indicates that the petitioner waived his rights to confront witnesses and that the guilty plea complied with §§ 39-19 and 39-20 of the Practice Book. A thorough review of the petitioner's file has failed to demonstrate that there are nonfrivolous claims of ineffective assistance of counsel [and] [t]he record indicates that the petitioner was informed by the court of possible immigration consequences. . . . The petitioner acknowledged during the court's canvass that he understood the possible consequences of his guilty plea on his immigration status." (Citation omitted.) The court concluded that there was "absolutely no merit to the petitioner's claims. . . ."

The habeas court subsequently granted the petitioner's application for a waiver of fees, costs and expenses to appeal. The habeas court, however, did not appoint counsel for an appeal and denied the petition for certification to appeal. The petitioner pro se filed a timely appeal. On March 14, 2005, pursuant to its memorandum of decision in response to a request to reconsider filed by public defender Martin Zeldis, the court sua sponte vacated its order denying certification to appeal and granted certification to appeal.² On appeal, the petitioner asks this court to reverse the judgment of the habeas court and to remand the matter for a trial. We deny the relief requested and affirm the judgment of the habeas court.

I SCOPE OF REVIEWABILITY

First we must determine, which, if any, of the issues on appeal are reviewable, a subject on which the parties disagree. The petitioner's brief includes an introduction to the argument, which states: "The habeas court erred by granting the petitioner's habeas counsel's motion for leave to withdraw appearance of appointed counsel and dismissing the petitioner's pro se petition for a writ of habeas corpus because the petitioner's habeas counsel failed to adequately articulate the claims raised by the petitioner and other potential claims, the petitioner's habeas counsel failed to conduct an adequate investigation into the factual bases and legal merit of the potential claims, the petitioner's habeas counsel failed to adequately articulate the factual and legal bases for his conclusion that the case is wholly frivolous, the habeas court failed to adequately evaluate whether the case was wholly frivolous, and the case is not wholly frivolous or the record does not demonstrate that the case is wholly frivolous." The introduction, in part, appears to assert claims of ineffective assistance of habeas counsel and erroneous actions of the habeas court. At oral argument, however, the petitioner's appellate counsel contended that those claims are not grounded in the ineffective assistance of habeas counsel, but in the denial of the right to counsel in the habeas proceeding to pursue the claimed ineffective assistance of trial counsel. We conclude, for purposes of this appeal, that this is a distinction without a difference.

The respondent argues that the claim that the habeas court improperly permitted counsel to withdraw should not be entertained on direct appeal from the judgment at issue.³ Because there was no habeas trial to develop facts related to the efforts of trial counsel, the respondent contends that the record is inadequate for our review, given that the facts are limited to the record in the trial court. The respondent also argues that the petitioner's remedy is by way of a petition for a writ of habeas corpus pursuant to Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992) (petitioner entitled to seek writ of habeas corpus on ground that counsel in prior habeas proceeding had rendered ineffective assistance), alleging that Fox rendered ineffective assistance.

The effectiveness of habeas counsel, however, is not the issue on appeal. The issue is whether the habeas court properly determined that the petition for a writ of habeas corpus did not raise any nonfrivolous issues. To that end, the petitioner argues, the record is adequate for review because it contains all of the documents that the habeas court relied on when it granted the Anders motion and dismissed the petition for a writ of habeas corpus.⁴ Under the limited circumstances of the issue on appeal, we agree with the petitioner.

Our first step is to review the allegations of the petition for a writ of habeas corpus to determine what allegations were before the habeas court. "The purpose of the [petition] is to put the [respondent] on notice of the claims made, to limit the issues to be decided, and to prevent surprise." (Internal quotation marks omitted.) Jenkins v. Commissioner of Correction, 52 Conn.App. 385, 406, 726 A.2d 657, cert. denied, 249 Conn. 920, 733 A.2d 233 (1999). "The petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action." (Internal quotation marks omitted.) Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 818, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied sub nom. Toccaline v. Lantz, 543 U.S. 854, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004). "The principle that a plaintiff may rely only upon what he has alleged is basic. . . . It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint." (Internal quotation marks omitted.) Holley v. Commissioner of Correction, 62 Conn. App. 170, 181, 774 A.2d 148 (2001). A complaint includes all exhibits attached to it. See Practice Book § 10-29; Streicher v. Resch, 20 Conn.App. 714, 716, 570 A.2d 230 (1990).

"[T]he interpretation of pleadings is always a question of law for the court. . . . Our review of the [habeas] court's interpretation of the pleadings therefore is plenary. . . . [T]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically. . . . [T]he [petition] must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties. . . . As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the [petition] is insufficient to allow recovery." (Citations omitted; emphasis in original; internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 559-60, 864 A.2d 1 (2005).

Pursuant to our plenary review of the petition for a writ of habeas corpus, we conclude that three issues were before the habeas court: whether the petitioner was denied the constitutional rights (1) to confront witnesses against him, (2) to the effective assistance of counsel and (3) to due process of law because he allegedly was sentenced in a manner that did not comply with our rules of practice and was not advised of the immigration consequences of his guilty plea.⁵ As previously noted, the respondent contends that the claims are not reviewable because there was no habeas proceeding to develop facts related to the claim of ineffective assistance of habeas counsel.⁶

In his...