Reed v. Reincke

Decision Date29 November 1967
Citation155 Conn. 591,236 A.2d 909
CourtConnecticut Supreme Court
PartiesHarry L. REED v. Frederick G. REINCKE, Warden, Connecticut State Prison.

Donald G. Walsh, Special Public Defender, for appellant (plaintiff).

Robert K. Walsh, Asst. State's Atty., with whom, on the brief, was George R. Tiernan, State's Attorney, for appellee (defendant).

Before ALCORN, HOUSE, THIM, RYAN and COVERLLO, JJ.

ALCORN, Associate Justice.

On February 7, 1963, the plaintiff was arrested under two bench warrants issued by the Superior Court pursuant to original informations filed by the state's attorney. One information, in two counts, charged the plaintiff with the crime of kidnapping in violation of General Statutes § 53-27 and with the crime of rape in violation of General Statutes § 53-238. The other information charged him with the crime of robbery with violence in violation of General Statutes § 53-14. The prevailing Connecticut procedure was followed in conformity with General Statutes § 54-43 so that the warrants were issued without facts supported by oath or affirmation from which the judge or court could independently determine that probable cause existed for their issuance. On February 8, 1963, the plaintiff was presented in the Superior Court and pleaded not guilty to all three counts. On February 14, 1963, he was again presented and, an that date, pleaded guilty to all three counts. On both appearances before the Superior Court he was represented by experienced counsel.

On March 12, 1963, the court adjudged him guilty on all counts and sentenced him to imprisonment in the state prison. He took no appeal and was committed to prison, where he has since been confined. The period allowed for an appeal expired in March, 1963. General Statutes § 54-95; Practice Book § 601.

On November 9, 1965, this court decided, in State v. Licari, 153 Conn. 127, 132, 214 A.2d 900, 902, that the fourth amendment to the constitution of the United States, as interpreted and applied by the United States Supreme Court through the fourteenth amendment, required, 'inter alia, that a state's attorney applying for a bench warrant submit facts, supported by oath or affirmation, from which the judge or court can make an independent determination that probable cause exists for the issuance of the bench warrant under General Statutes § 54-43.' We stated (p. 129, 214 A.2d 900) that an attack seasonably made by the accused on the court's jurisdiction of his person and premised on the illegality of the warrant would require a dismissal of the case against him.

Thereafter, on January 18, 1966, the plaintiff, acting pro se, filed the present application for a writ of habeas corpus in which he sought 'an order dismissing the information against him, (and) directing his immediate release.' The writ issued, and, on February 24, 1966, the court appointed counsel to represent the plaintiff. Following a hearing, the court, on June 28, 1966, dismissed the plaintiff's petition and thereafter granted his application for a review, by this court, of 'the question of whether or not the Licari doctrine should be given retrospective application' to the plaintiff's case.

The parties have made no issue, and consequently we need not decide, whether habeas corpus is a proper vehicle to raise the question presented. Habeas corpus provides a special and extraordinary legal remedy for illegal detention. Bissing v. Turkington, 113 Conn. 737, 740, 157 A. 226. The usual question presented is the jurisdiction of the court to render the judgment attacked by the writ. Wojculewicz v. Cummings, 143 Conn. 624, 628, 124 A.2d 886. There is substantial authority for the proposition that, when the question at issue is the jurisdiction of the person, and that appears on the face of the record, any defect will have been cured by waiver or consent so that habeas corpus will not lie. See Wagner v. Hunter, 161 F.2d 601, 603 (10th Cir.), cert. denied, 332 U.S. 776, 68 S.Ct. 39, 92 L.Ed. 361, rehearing denied, 333 U.S. 878, 68 S.Ct. 895, 92 L.Ed. 1154; Application of Salvi, 63 N.J.Super. 11, 15, 163 A.2d 561, aff'd, 34 N.J. 450, 170 A.2d 11; In re Shaffer, 70 Mont. 609, 615, 227 P. 37. Consequently, although habeas corpus may be a proper means of attacking the legality of an arrest before plea and trial, it has been rejected as a proper means, after judgment, of attacking the legality of an arrest which led up to the judgment; State ex rel. Farrington v. Rigg, 259 Minn. 483, 486, 107 N.W.2d 841; or of testing the sufficiency of a warrant issued, prior to judgment, by a court of competent jurisdiction. In re Milecke, 52 Wash. 312, 313, 100 P. 743. We shall confine our consideration, however, to the single question presented by the parties.

The plaintiff does not complain that either information failed adequately to inform him of the charges made against Him. His guilt of those charges is admitted. No claim is made, nor could one properly be made, that, when the plaintiff was adjudged guilty, the Superior Court lacked jurisdiction of the subject matter. General Statutes §§ 54-17, 54-42. His only claim is that his conviction must be set aside because the arrest warrants by which he was brought before the court were, if the Licari case is given restrospective effect, illegal.

In six recent criminal cases we have accorded partial retrospective application to changes in the law announced by the United States Supreme Court. State v. Wilkas, 154 Conn. 407, 225 A.2d 821; State v. Vars, 154 Conn. 255, 224 A.2d 744; State v. Annunziato, 154 Conn. 41, 221 A.2d 57; State v. Hanna, 150 Conn. 457, 191 A.2d 124; State v. Fahy, 149 Conn. 577, 183 A.2d 256, reversed, Fahy v. State of Conn., 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171; State v. DelVecchio, 149 Conn. 567, 182 A.2d 402. The element in each of these cases to which retrospective effect was given had arisen subsequent to the trial as a result of a decision of the United States Supreme Court and during the pendency of an appeal to this court. Most important, however, is the fact that the element involved affected the substance of a fair trial.

We have twice dealt with the retrospective application of overruling decisions in civil cases. Chykirda v. Yanush, 131 Conn. 565, 569, 41 A.2d 449; Mickel v. New England Coal & Coke Co., 132 Conn. 671, 676, 47 A.2d 187. In the Chykirda case we not only did not apply the decision retrospectively but gave it a prospective application even to the exclusion of the parties to the case. In the Mickel case, we applied the change in substantive law announced in Chase v. Fitzgerald, 132 Conn. 461, 45 A.2d 789, to the Mickel case which was pending when the Chase case was decided.

The United States constitution neither requires nor prohibits the retrospective application of a decision overturning prior pronouncements of the law. Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 14 L.Ed.2d 601; Tidal Oil Co. v. Flanagan, 263 U.S. 444, 450, 44 S.Ct. 197, 68 L.Ed. 382. The courts of the states are free to determine the extent to which new decisions are to have retrospective effect. Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364, 53 S.Ct. 145, 77 L.Ed. 360. In contrasts to our prior decisions to which we have referred, the plaintiff would now have retrospective effect given to what is, in reality, a procedural matter having no effect on the essential justice of his conviction in a case which had gone to judgment before the Licari case was decided and without the issue having been raised until this habeas corpus petition was filed.

The Licari case 'amounted merely to a recognition and acceptance, and, indeed, an application, by Connecticut of settled law as laid down by the Supreme Court of the United States in cases such as Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503.' State v. Orsini, 155 Conn. 367, 378, 232 A.2d 907, 913. Although the Giordenello decision set aside a conviction obtained in a trial which followed an arrest on a warrant adjudged to be illegal, that result was reached, not merely because of the invalidity of the arrest warrant, but because the heroin which had been seized incident to the illegal arrest by virtue of that warrant was admitted in evidence at the trial and thereby tainted the justice of the trial which followed. The case now before us is in no way comparable to the Giordenello case since no claim of an unfair trial is involved. Moreover, the Licari case applied the Giordenello rule in a direct appeal from the judgment and on facts disclosing that the state made no claim that the accused had consented or voluntarily submitted to the jurisdiction of the court. State v. Licari, 153 Conn. 127, 130, 214 A.2d 900.

In the present case, the state claims that, by his pleas of not guilty and guilty, while represented by experienced counsel, the plaintiff consented to the jurisdiction over his person and waived any defect in the bench warrants. State v. Bishop, 7 Conn. 181, 184; see State v. Wolcott, 21 Conn. 272, 280. As we pointed out in State v. Licari, supra, our procedure in civil cases requiring preliminary matters to be disposed of before issue is joined applies, so far as adaptable, to criminal cases. Practice Book § 468. Consequently, it is necessary to raise a claim of lack of jurisdiction of the person prior to a plea on the merits if a waiver of any claimed illegality or a voluntary submission to the jurisdiction is to be avoided. The plaintiff claims, on the other hand, that a state procedural requirement of this sort cannot obstruct his exercise of federal constitutional rights, under the rule of O'Connor v. Ohio, 385 U.S. 92, 87 S.Ct. 252, 17 L.Ed.2d 189. This claim, however, overlooks the fact that the O'Connor rule was applied in a case which was on direct appeal and not in a case such as the one now before us in which the judgment had become final long before the procedural issue was raised.

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