Sinchak v. Comm'r of Correction.

• Decision Date: 22 February 2011
• Docket Number: No. 29193.,29193.
• Citation: 126 Conn.App. 684,14 A.3d 343
• Court: Connecticut Court of Appeals
• Parties: Anthony SINCHAKv.COMMISSIONER OF CORRECTION.

126 Conn.App. 684

14 A.3d 343

Anthony SINCHAK

v.COMMISSIONER OF CORRECTION.

No. 29193.

Appellate Court of Connecticut.

Argued Oct. 13, 2010.Decided Feb. 22, 2011.

J. Patten Brown III, Hartford, for the appellant (petitioner).James A. Killen, senior assistant state's attorney, with whom, on the brief, were John A. Connelly, former state's attorney, and Eva B. Lenczewski, supervisory assistant state's attorney, for the appellee (respondent).BISHOP, ROBINSON and FRANCIS X. HENNESSY, Js.BISHOP, J.

The petitioner, Anthony Sinchak, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus that alleged ineffective assistance of habeas counsel. On appeal, he claims that the court improperly (1) failed to appoint counsel to represent him when he filed his habeas petition and (2) dismissed his petition as premature. Because we agree with the petitioner's first claim, and subsequent events have rendered moot the court's determination that the petition was premature, we reverse the judgment of the habeas court.

The following procedural history is relevant to our disposition of the petitioner's appeal. Following a jury trial in 1995, the petitioner was convicted of murder in violation of General Statutes § 53a–54a and two counts of kidnapping in the first degree in violation of General Statutes § 53a–92. On July 26, 2000, the petitioner filed a pro se petition for a writ of habeas corpus, and he filed another petition on July 3, 2001. The two petitions were consolidated by court order on July 30, 2001 (first petition). Attorney Donald O'Brien was later appointed as a special public defender and filed his appearance on February 22, 2002. The matter was tried in December, 2006, and March, 2007, before the habeas court, and in a memorandum of decision filed June 29, 2007, the court denied the petition. On July 9, 2007, the court also denied the petitioner's subsequent petition for certification to appeal from that judgment. The petitioner appealed on August 1, 2007, following the denial of certification.

Prior to a resolution of the appeal of the first petition, on July 25, 2007, the petitioner filed a second habeas petition (second petition) claiming ineffective assistance of habeas counsel in his representation of the petitioner in his first petition. In the second petition, the court granted the petitioner's application for waiver of entry fee on August 1, 2007, but then dismissed the petition on August 8, 2007, pursuant to Practice Book § 23–29(4),¹ on the ground that the claim was premature. The court granted his petition for certification to appeal from the dismissal on November 16, 2007. This appeal followed.

On appeal, the petitioner claims that the court incorrectly dismissed the second petition as premature ² and improperly failed to appoint counsel once the petition had been docketed. We agree with his claim regarding counsel.

The use of a habeas petition to raise an ineffective assistance of habeas counsel claim, commonly referred to as a “habeas on a habeas,” was approved by our Supreme Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992). In Lozada, the court determined that the statutory right to habeas counsel for indigent petitioners provided in General Statutes § 51–296(a) ³ includes an implied requirement that such counsel be effective, and it held that the appropriate vehicle to challenge the effectiveness of habeas counsel is through a habeas petition. Id., at 838–41, 613 A.2d 818. To resolve the petitioner's claim in the present case, we must determine whether § 51–296(a) provides an indigent petitioner with a right to counsel for such a habeas on a habeas, as it does for the initial petition.

Because this analysis requires us to interpret the statute affording counsel to an indigent habeas petitioner, our review is plenary. In re A.R., 123 Conn.App. 336, 339, 1 A.3d 1184 (2010). “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.” (Internal quotation marks omitted.) Id. “When a statute is not plain and unambiguous, we also look for interpretive guidance 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.) Bank of New York v. Bell, 120 Conn.App. 837, 845, 993 A.2d 1022, cert. denied, 298 Conn. 917, 4 A.3d 1225 (2010).

[14 A.3d 346 , 126 Conn.App. 688]

We look first to the language of the statute. See General Statutes § 1–2z. Section 51–296(a) provides, in relevant part, that a court shall appoint counsel to represent an indigent petitioner “in any criminal action” or “in any habeas corpus proceeding arising from a criminal matter....” ⁴ Our appellate courts have liberally construed the reference in § 51–296(a) to “any habeas corpus proceeding” as providing an indigent petitioner with a statutory right to counsel in both habeas hearings and habeas appeals. Gipson v. Commissioner of Correction, 257 Conn. 632, 646 n. 20, 778 A.2d 121 (2001). The limiting phrase “arising from a criminal matter,” however, has not been interpreted separately. It is not statutorily defined, and neither § 51–296 nor any other statutory provision clearly indicates whether a habeas on a habeas arises from a criminal matter within the meaning of § 51–296(a).

Certainly not every habeas proceeding arises from a criminal matter. “The writ of habeas corpus ... does not focus solely upon a direct attack on the underlying judgment or upon release from confinement. See, e.g., Gaines v. Manson, 194 Conn. 510, 481 A.2d 1084 (1984) (undue appellate delay); Arey v. Warden, 187 Conn. 324, 445 A.2d 916 (1982) (conditions of confinement); Roque v. Warden, 181 Conn. 85, 434 A.2d 348 (1980) (first amendment issues); Negron v. Warden, 180 Conn. 153, 429 A.2d 841 (1980) (state's extradition practice); Doe v. Doe, 163 Conn. 340, 307 A.2d 166 (1972) (custody and visitation disputes).” Lozada v. Warden, supra, 223 Conn. at 841–42, 613 A.2d 818. Lozada clearly distinguishes, however, that ineffective assistance of counsel claims arise from a criminal matter, stating that “whether the accused had reasonably competent habeas and trial counsel ... are matters that ultimately challenge the underlying conviction.” Id., at 842, 613 A.2d 818. In fact, it appears to be this direct nexus to the criminal matter that convinced the Lozada court that the vehicle for challenging the effectiveness of trial counsel, a habeas petition, may also be employed to assert an ineffectiveness claim regarding habeas counsel. Id., at 842–43, 613 A.2d 818. Accordingly, we conclude that a habeas on a habeas arises from a criminal matter within the meaning of § 51–296(a). Indeed, it would produce an anomalous result to hold that one has a right to bring a habeas challenging the effectiveness of habeas counsel but one is not statutorily entitled to the assistance of counsel in such an effort. As Lozada's provision for the remedy of a habeas upon a habeas is premised on the notion that one's criminal conviction is at the root of an initial habeas claiming ineffectiveness of trial counsel as well as at the root of a habeas claiming ineffectiveness of habeas counsel, we believe that the statutory right to counsel in a habeas petition arising from one's conviction pertains not only to the initial habeas petition asserting ineffectiveness of trial counsel but also to the habeas upon a habeas claiming ineffectiveness of habeas counsel.

We find additional support for our conclusion in the reasoning in Gipson v. Commissioner of Correction, supra, 257 Conn. at 632, 778 A.2d 121, in which our Supreme Court interpreted the portion of § 51–296(a) referencing “any criminal action.” Gipson determined that “any criminal action” under § 51–296(a) includes all direct appeals, including petitions for certification, and not just a first appeal as of right. Id., at 646, 778 A.2d 121. The court found precedent for this “liberal construction” in the expansive interpretation it had given to the reference in § 51–296(a) to habeas corpus proceedings. Id., 646 at n. 20, 778 A.2d 121. That precedent of liberal construction applies even more precisely to the present case, which directly concerns the intent of the reference in § 51–296(a) to habeas proceedings. Consequently, in the same manner in which Gipson reasoned that a provision of counsel for the first appeal as of right logically extends to all direct appeals from a conviction; id., at 646, 778 A.2d 121; we reason that a provision of counsel for an initial ineffective assistance habeas petition logically extends to all ineffective assistance habeas petitions, including a habeas on a habeas.

Our Supreme Court also construed the phrase “any criminal action” in State v. Casiano, 282 Conn. 614, 922 A.2d 1065 (2007), and, as with Gipson, we find its reasoning instructive in our interpretation of the phrase “arising from a criminal matter.” Casiano determined that “any criminal action” includes the preparation and filing of a nonfrivolous motion to correct an illegal sentence and any direct appeal from the denial of such motion. Id., at 624, 922 A.2d 1065. It reasoned that a motion to correct an illegal sentence is an alternate route equivalent to an appeal of an illegal sentence and, because § 51–296(a) provides counsel for such an appeal, the statutory right to counsel logically extends to the equivalent motion. Id., at 625–26, 922 A.2d 1065. Similarly, in the present case, a habeas on a habeas is equivalent to an initial ineffective assistance habeas because both...