Nardini v. Manson

• Decision Date: 10 March 1987
• Docket Number: No. 4233,4233
• Parties: Dante NARDINI v. John MANSON, Commissioner of Correction.
• Court: Connecticut Court of Appeals

Page 1059

521 A.2d 1059

10 Conn.App. 147

Dante NARDINI v. John MANSON, Commissioner of Correction.

No. 4233.

Appellate Court of Connecticut.

Argued Oct. 15, 1986.

Decided March 10, 1987.

Charles Hanken, Bridgeport, with whom, on the brief, was Richard Emanuel, Bridgeport, for appellant (petitioner).

Richard N. Palmer, Sp. Asst. State's Atty., Hartford, for appellee (respondent).

Before BORDEN, DALY and BIELUCH, JJ.

BIELUCH, Judge.

The petitioner, Dante Nardini, seeks his release from imprisonment under sentences imposed after two criminal convictions, claiming that he had been denied both due process of law and the effective assistance of counsel by the use, at his jury trial and at his sentencing, of two prior felony convictions obtained when he was not represented by counsel. After a full evidentiary hearing, the court denied his petition for a writ of habeas corpus. He has appealed from that judgment. We find error.

The record discloses a factual background of long duration and sustained litigation. On January 25, 1979, the petitioner was found guilty by a jury of conspiracy to commit arson in the first degree in violation of General Statutes §§ 53a-111 (a) and 53a-48, and also of arson in the first degree in violation of General Statutes § 53a-111 (a). The jury found him not guilty on a third count of larceny in the second degree. He was sentenced by the court to a term of eight to sixteen years on the first count and to a consecutive term of ten to twenty years on the second count, for a total effective sentence of eighteen to thirty-six years. After a hearing, the Sentence Review Division left the terms of the two sentences intact, but ordered that they be served concurrently for a total effective sentence of ten to twenty years. After an appeal by the state from the sentence reduction with permission of the presiding judge; General Statutes § 54-96; the Supreme Court upheld the modified sentences in State v. Nardini, 187 Conn. 109, 445 A.2d 304 (1982).

At his jury trial, and subsequently at his sentencing and in the proceedings before the Sentence Review Division, the petitioner was represented by a special public defender. At trial, the petitioner testified in his own defense and denied his guilt of the crimes. Before he took the witness stand, his counsel moved to suppress evidence of two prior felony convictions, a conviction in 1953 for breaking and entering and a conviction in 1958 for carrying a pistol without a permit, which had been offered for the purposes of impeaching his credibility. The reasons given in support of this motion were (1) a concern that the jury would be unable to follow the court's instructions limiting their consideration of the convictions solely for impeachment purposes, (2) the remoteness and age of the convictions, and (3) that they did not bear sufficiently upon credibility. The court initially reserved its ruling, expressing some concern over the age and remoteness of the convictions. In the meantime, the petitioner began his preliminary testimony.

Ultimately, the trial court ruled that it would allow the use of the two felony convictions for impeachment purposes, but stated that it would "give a limiting instruction and stress the length of time that ha[d] elapsed." The petitioner's counsel excepted to the court's denial of his motion to suppress the prior felony convictions, but stated his intention to inquire on direct examination of his client about them, without intending "to have my asking of the questions constitute a waiver of what I consider to be an incorrect ruling of the court on this point."

The petitioner immediately thereafter resumed his testimony and the following colloquy took place:

"Q. [By Mr. Tiernan] Mr. Nardini, let me ask you now, please, is it so that in 1953, you were convicted of the crime of breaking and entering?

"A. [The Defendant] Yes, I was.

"Q. And, that was 1953?

"A. Yeah. I was about eighteen, nineteen years old, I guess.

"Q. All right. And, in 1958, were you convicted of the offense of carrying a pistol without a permit?

"A. Yes.

"Q. All right. And, you were five years older at the time, approximately?

"A. Four or five years older, whatever, yeah."

After this statement of his criminal record, the petitioner continued his direct testimony. On cross-examination he was asked only the following questions pertaining to his two prior convictions:

"Q. [By Ms. Galvin] And, Mr. Nardini, in 1953, you were convicted of a felony of breaking and entering, isn't that correct?

"A. [The Defendant] Yes, ma'am.

"Q. In 1958, you were convicted of the felony of carrying a pistol without a permit, weren't you?

"A. Yes, ma'am."

In its charge to the jury after the completion of the evidence and summations of counsel, the court instructed the jury on its use of prior convictions in evaluating the testimony of the petitioner and several witnesses called by the state. ¹ No exception was taken to this instruction. Subsequently, the petitioner was convicted by the jury on the first and second counts and acquitted on the third count. The petitioner appealed ² these convictions to the Supreme Court, claiming, inter alia, that the trial court had erred in admitting his two prior felony convictions for impeachment purposes.

The Supreme Court affirmed the defendant's convictions. State v. Nardini, 187 Conn. 513, 447 A.2d 396 (1982). After observing that the petitioner was not deterred from testifying in his own defense by his realization that the jury would probably learn of his former convictions, the court concluded that "[i]t was not a wholly unreasonable exercise of the court's discretion to admit the conviction of the defendant for breaking and entering, despite its antiquity, since it could be said still to retain sufficient probative value for credibility to outbalance the rather minimal prejudice which arose from its admission under all the circumstances of this case." Id., at 529-30, 447 A.2d 396. Although the court found error in the admission of the 1958 conviction for carrying a pistol without a permit because of its nature and remoteness, it did "conclude, nevertheless, that this error was harmless because it is so highly improbable that any additional prejudice arising from knowledge by the jury of this second conviction affected the outcome." Id., at 530, 447 A.2d 396.

On February 23, 1983, the petitioner commenced this habeas corpus action. The petition was in two counts. The first count was based on the alleged illegal use for credibility impeachment of the 1953 felony conviction for breaking and entering, and the second was based on the alleged illegal use for impeachment of the 1958 felony conviction for carrying a pistol without a permit. The right to a writ of habeas corpus was predicated in each count upon two grounds: (1) "[t]he introduction into evidence, at petitioner's 1979 jury trial, of his invalid 1953 felony conviction [and 1958 felony conviction], violated his right to due process of law, in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article First, Section 8 of the Connecticut Constitution"; and (2) "[a]s a result of defense counsel's actions/inactions with respect to the use of petitioner's 1953 conviction [and 1958 conviction] at his trial and sentencing, the petitioner was denied the adequate assistance of counsel, in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article First, Section 8 of the Connecticut Constitution."

The felony convictions were alleged to be illegal because in each instance they resulted from a guilty plea when he was not represented by counsel and had not been advised of his right to the assistance of counsel as an indigent, and because the guilty pleas had not been made knowingly, intelligently and voluntarily. For that reason, their use for impeachment of his credibility violated his right to due process of law. His claim of inadequate assistance of counsel arose from counsel's failure to assert that the uncounseled convictions could not be invoked at trial and sentencing because of their illegality after petitioner had advised counsel of their circumstances. In his prayer for relief, he claimed (1) release from custody, (2) reversal of the convictions, and (3) a new trial.

After an evidentiary hearing, the trial court denied the petitioner's application for a writ of habeas corpus. A synopsis of the court's memorandum of decision is contained in these concluding statements: "[I]n this case, however, petitioner's counsel's neglect as to the uncounseled convictions did not reach such constitutional dimensions as to deprive the petitioner of a fair trial. Moreover, the Connecticut Supreme Court, on appeal of petitioner's case, noted that the use of the prior convictions to impeach petitioner were of either minimal prejudice or harmless error. As a consequence, this use could not have contributed to petitioner's conviction. On the basis of the foregoing, this court concludes that the petitioner failed to sustain his burden of proving ineffective assistance of counsel." From this judgment, the petitioner has appealed after a grant of certification.

After filing his appeal, the petitioner moved that the trial court "further articulate the basis of its decision in this action, with specific reference to the Petitioner's claim that he was deprived of his state and federal constitutional rights to due process of law." This motion was denied with the notation: "Claim of denial of due process was dealt with in this court's opinion and also in the Supreme Court opinions referred to therein."

The sole issue on appeal is whether, in denying the petition for a writ of habeas corpus, the court erred in concluding that the petitioner's right to due process of law, and right to the effective assistance of counsel, were not violated by the use, at petitioner's criminal trial and...