State v. Francis

• Decision Date: 02 August 2016
• Docket Number: SC 19378
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. ERNEST FRANCIS

STATE OF CONNECTICUT v. ERNEST FRANCIS

SC 19378

Supreme Court of Connecticut

Argued January 26, 2016

August 2, 2016

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Robinson and Vertefeuille, Js.^*

Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Edward R. Narus, former supervisory assistant state's attorney, for the appellant (state).

Christopher Duby, assigned counsel, with whom, was Robert O'Brien, assigned counsel, for the appellee (defendant).

Opinion

PALMER, J. The state appeals from the judgment of the Appellate Court, which reversed the trial court's denial of the request of the defendant, Ernest Francis, for the appointment of counsel to represent him in connection with the filing of a motion to correct an illegal sentence arising out of his 1992 conviction of murder.¹ In State v. Casiano, 282 Conn. 614, 627-28, 922 A.2d 1065 (2007), this court determined that, pursuant to General Statutes § 51-296 (a),² an indigent defendant has a right to the appointment of counsel for the purpose of determining whether a sound basis exists for him to file a motion to correct an illegal sentence, and, if such a basis is determined to exist, he also has the right to counsel for the purpose of pursuing the motion to its conclusion. On appeal, the state claims that the Appellate Court incorrectly concluded that the trial court was required to follow the procedure set forth in Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967),³ before it properly could deny the defendant's request for the appointment of counsel on the ground that no sound basis existed for him to file a motion to correct. We conclude that the Anders procedure is not strictly required to safeguard the defendant's statutory right to counsel in the context of a motion to correct an illegal sentence. We further conclude, however, that the trial court improperly failed to appoint counsel to assist the defendant in determining whether there was a sound basis for him to file such a motion. Because we also conclude that this error was harmful to the defendant, the case must be remanded to the trial court so that counsel may be appointed to represent the defendant in accordance with the dictates of Casiano.

The opinion of the Appellate Court sets forth the following undisputed facts and procedural history. "Following [his direct] appeal, [t]he defendant filed his first motion to correct an illegal sentence in 2001, in which he alleged that the sentencing court denied his right to speak in mitigation of punishment, relied on inaccurate information and failed to rely on information solely within the record. The trial court . . . denied the motion on the merits. On appeal, the Appellate Court found that the trial court lacked jurisdiction to consider the motion to correct because the defendant's claims did not attack the validity of the sentence, and remanded the case with direction that the motion be dismissed. . . . The defendant filed a second motion to correct that was denied on the merits . . . [on] November 18, 2005. In that motion, the defendant alleged that the sentencing court improperly signed his arrest warrant and presided over his probable cause hearing. The Appellate Court summarily affirmed the [denial of the second motion to correct] . . . ." (Internal quotation marks omitted.) State v. Francis, 148 Conn. App. 565, 567 n.2, 86 A.3d 1059 (2014).

Thereafter, "[t]he defendant, representing himself, filed [a third] motion to correct on July 12, 2010, and later amended it on October 12, 2010. On September 8, 2010, the date on which the [third] motion was initially scheduled for a hearing, the court, Gold, J., opened the hearing by engaging in the following colloquy with the defendant and [a] public defender, R. Bruce Lorenzen:

"The Court: . . . This is [the defendant's] third motion to correct what he alleges is an illegal sentence. Are you doing this yourself or are you applying for the public defender to review the claim?

"The Defendant: I'd like to represent myself, Your Honor.

"The Court: Do you understand you have the right to apply for a public defender? The public defender would, pursuant to . . . State v. Casiano, [supra, 282 Conn. 627-28] review the file. If the public defender felt that there was some potential merit to your claim, the public defender would be appointed to represent you. If the public defender said no, that [is, that] he or she didn't think there was sufficient likelihood of success, then you could do it yourself if you wanted to. But do you want to skip that step and just represent yourself?

"The Defendant: I was assuming that had happened when I first came in on . . . Casiano so we could save time. But I mean, if I—I'm going to apply for the public defender then.

"[Attorney Lorenzen]: Judge—

"The Court: Yes.

* * *

"[Attorney Lorenzen]: [R.] Bruce Lorenzen, Public Defender's Office. The [court] clerk had alerted us to [the defendant's] claim. I have reviewed it. May I have just a moment?

* * *

"[Attorney Lorenzen]: Judge, again, I was made aware of this case, and I've had an opportunity to review the motion as well as some previous files that our office has been involved in and my concern is not so much on legal merit but potentially on procedural grounds. There's a problem in terms of us being appointed.

"The Court: All right. So are you going to try to get a special [public defender]?

"[Attorney Lorenzen]: It's not a conflict situation.

"The Court: It's not a conflict. So what are you proposing?

"[Attorney Lorenzen]: Judge, I really sympathize with [the defendant's] position, and I've told him, there's an emotional merit to his claim because what he cites in his petition in terms of occurrences in court, as near as I can tell, did, in fact, occur. My concern is more, as the court started this proceeding by saying, that this is the third [motion], the problem is more whether or not it's been previously addressed.

"The Court: All right. I guess—

"[Attorney Lorenzen]: And so in the limited confines of Casiano, I think it would be my obligation to take the position that this claim does not have sufficient merit to justify appointment. But it's—as I'm probably sounding, it's a close call, and it's not—it's a question of whether previous courts have been wrong and the way they look at things.

"The Court: The first order of business as far as I'm concerned on a motion to correct is to satisfy Casiano. So that's what I inquired [about]. He said yes. Are you reporting then to the [c]ourt that based on your review of the allegations and—

"[Attorney Lorenzen]: It's my considered opinion that it does not have merit.

"The Court: All right. Well, then, thank you. Then . . . you understand that means that you're going to pursue this either by hiring with the help of a lawyer that you hire yourself or else you'll do it yourself?

"The defendant responded to the court's decision to deny his request for appointed counsel with the following objection to [Attorney] Lorenzen's failure to specify the grounds [on] which he had concluded that the motion to correct lacked sufficient merit to warrant appointing counsel thereon:

"The Defendant: I understand the dictates of . . . Casiano. However, I think that . . . Casiano, everyone is overlooking [Anders] . . . as well as Fredericks v. [Reincke, 152 Conn. 501, 208 A.2d 756 (1965)], which is a Connecticut case on when a lawyer feels that a case has no merit. [Attorney] Lorenzen comes in and he doesn't have anything on paper to point . . . [to] issues that can, that I may be able to raise alternatively if he feels it has no merit. I think [the] United States Supreme Court has already spoken in [Anders] that whenever a lawyer seeks to withdraw or seeks to say that there's no merit to a claim, the [s]ixth [a]mendment [affords a defendant the] right to have [the lawyer] file an [Anders] brief. I just want to put that on the record.

"The Court: All right.

"The Defendant: I just want to put that on the record. If the [c]ourt feels that he doesn't have to file an [Anders] brief, that's an issue I'll take up on appeal.

"The Court: Yes. The [c]ourt's order is that [Attorney] Lorenzen has satisfied his responsibilities by having reviewed your third motion and having represented to me that he does not feel the appointment of a public defender or a special public defender is warranted in this case.

"The defendant then reiterated his request that [Attorney] Lorenzen state the specific grounds [on] which he had relied in concluding that [the defendant's] motion to correct had no merit. This request was denied by the court in the following . . . colloquy with the defendant:

"The Defendant: . . . I don't want to waste too much time on this issue. What I'm saying is I'd like to know what [Attorney Lorenzen's] official position as to why the case had no merits, so I can address that also.

"The Court: Well—

"The Defendant: So I don't have to ask for articulation or rectification for that.

"The Court: I'm not going to require [Attorney Lorenzen] to assume that responsibility. [He] has assessed it, and it is his considered opinion, [Attorney] Lorenzen's, that this case, perhaps considering the prior court's rulings . . . deny[ing] [the] previous [motions to correct]. I'm going to accept what [Attorney] Lorenzen says.

"The Defendant: Okay.

"The Court: And I don't believe he's under any obligation to explain that any further.

"The Defendant: I would just like to say that the issue was never addressed. It's not res judicata or collateral estoppel because it was never raised before.

"The Court: Oh, I'm not—

"The Defendant: [Attorney] Lorenzen's position that it was addressed before as he conveyed to me, this issue was never addressed.

"The Court: I don't think that's what [Attorney] Lorenzen said at all. He mentioned prior proceedings, but he has assessed the merit of the claim that's now before this [c]ourt...