State v. Files

• Decision Date: 21 April 1981
• Citation: 441 A.2d 27,183 Conn. 586
• Court: Connecticut Supreme Court
• Parties: , 27 A.L.R.4th 208 STATE of Connecticut v. John FILES, Jr.

Page 27

441 A.2d 27

183 Conn. 586, 27 A.L.R.4th 208

STATE of Connecticut v. John FILES, Jr.

Supreme Court of Connecticut.

Argued April 7, 1981.

Decided April 21, 1981.

John W. Marino, Jr., Hartford, in support of the motion.

Richard Shiffrin, Asst. State's Atty., Wall, in opposition.

Before BOGDANSKI, C. J., and PETERS, HEALEY and PARSKEY, JJ. ¹

PETERS, Associate Justice.

The defendant, John W. Files, Jr., has filed a motion to set aside the judgment rendered against him upon his conviction of the crimes of sexual assault in the fourth degree in violation of General Statutes § 53a-73a(a)(1) (A) ² and of risk of injury to a child in violation of General Statutes § 53-21. ³ The motion is premised upon the state's failure to defend against his appeal with due diligence.

The record reveals that the defendant, then fifty-seven years old, was charged by information on October 2, 1978, with the commission of the crimes on September 30, 1978. After a trial to the jury he was, on May 22, 1979, found guilty of both charges. Thereupon the defendant filed timely motions for acquittal and for a new trial. At the sentencing hearing on June 21, 1979, after having denied these motions, the trial court noted both the defendant's clean record for the first fifty-five years of his life and his conviction of a similar charge in Maine two years earlier. The trial court imposed a total effective sentence of six to eleven years on the defendant, and the sentence review board affirmed that sentence. Because the defendant was and is unable to post bond, he has been continuously incarcerated since his arrest in October, 1978.

Having been granted an extension of time to appeal by the trial court, the defendant properly appealed to this court on December 12, 1979. A brief on his behalf was filed in timely fashion by new counsel on January 24, 1980. The brief raises three claims of error, one questioning a pretrial statement by the trial court judge and two challenging his evidentiary rulings at the trial. Under the rules of practice, the state as appellee was required to submit its brief on or before February 23, 1980. Practice Book § 3060N. Because the state's brief had not been filed by February 3, 1981, the defendant filed the motion now before us. When this motion was heard on April 7, 1981, the state conceded that its brief had even yet not been prepared.

In the period of more than thirteen months since the state's brief was due, the state has given this case only perfunctory attention. On June 17, 1980, the state requested an extension of time until July 22 1980, to file its brief, because the "Appellate Bureau is presently handling appeals to both the Supreme Court and the Appellate Session received prior to the Files matter." An extension was granted to July 19, 1980, despite the defendant's timely objection correctly pointing out that the state's motion was in violation of Practice Book § 3097(c)(4). ⁴ Two further requests for extension, relying on the same ground, were filed on July 18, 1980, seeking an extension until September 1, 1980, and on August 29, 1980, seeking an extension until October 7, 1980. These motions too were routinely granted. Since August, 1980, the case has been entirely dormant.

In our review of a defendant's right to have his appeal defended by the state with due diligence, Practice Book § 3109, ⁵ we can find guidance in the analogous rules that have been developed to protect a defendant's right to a speedy trial. It is true, of course, that a criminal defendant does not have a constitutional right to appeal from a judgment of conviction. Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651 (1977). "The remedy of appeal afforded defendants in criminal prosecutions is, in this state, purely statutory; General Statutes § 54-95; but having established an appellate forum, 'these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts.' Rinaldi v. Yeager, 384 U.S. 305, 310, 86 S.Ct. 1497, 1500, 16 L.Ed.2d 577; Blackledge v. Perry, 417 U.S. 21, 25, 94 S.Ct. 2098, 2101, 40 L.Ed.2d 628; Chaffin v. Stynchcombe, (412 U.S. 17, 24, 93 S.Ct. 1977, 1981, 36 L.Ed.2d 714). The right to appeal, though statutory, has therefore been jealously protected." Staton v. Warden, 175 Conn. 328, 333-34, 398 A.2d 1176 (1978). We would be derelict in our responsibility for the administration of criminal justice if we were to permit the right to appeal to be undermined by unreasonable delay by the state in defending against appeals. See State v. Holup, 166 Conn. 471, 473-74, 352 A.2d 275 (1974); Chanosky v. City Building Supply Co., 152 Conn. 449, 451-52, 208 A.2d 337 (1965).

Several factors must be balanced, on a case by case basis, to determine whether delay by the state in defending against an appeal has unjustifiably impaired the defendant's access to this court. In the context of adjudicating a defendant's right to a speedy trial, the Supreme Court of the United States and this court have identified four factors which form the matrix of the defendant's right to speedy adjudication: "(l)ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972); State v. Nims, 180 Conn. 589, 593, 430 A.2d 1376 (1979); State v. McCarthy, 179 Conn. 1, 5, 425 A.2d 924 (1979).

Application of the balancing test to this case requires us to grant the defendant's motion for judgment. A delay of more than thirteen months ⁶ in the filing of the state's brief, while not unreasonable per se, is sufficiently long to require an examination of the other factors that go into the balance. The state's announced reason for its delay, the workload in its appellate office, is a reason which we have discountenanced in the past; Chanosky v. City Building Supply Co., supra, 152 Conn. 452, 208 A.2d 337. At best, congestion in the office is a neutral reason, showing only that the state's delay is not deliberate; it is not a satisfactory explanation. State v. Nims, supra, 180 Conn. at 593, ...