State v. Kohlfuss

• Citation: 152 Conn. 625,211 A.2d 143
• Court: Supreme Court of Connecticut
• Decision Date: 01 June 1965
• Parties: STATE of Connecticut v. Alfred W. KOHLFUSS. Supreme Court of Errors of Connecticut

Page 143

211 A.2d 143

152 Conn. 625

STATE of Connecticut v. Alfred W. KOHLFUSS.

Supreme Court of Errors of Connecticut.

June 1, 1965.

Herbert J. Bundock, Public Defender, and Alfred W. Kohlfuss, pro se, for appellant (defendant).

Joseph T. Gormley, Jr., Asst. State's Atty., with whom, on the brief, were Otto J. Saur, State's Atty., and John F. McGowan, Asst. State's Atty., for appellee (State).

Before KING, C. J., and MURPHY, ALCORN, SHANNON, and HOUSE, JJ.

KING, Chief Justice.

The defendant, Alfred W. Kohlfuss, was convicted in a trial to the court of the crime of breaking and entering ¹ a gasoline station on April 25, 1963, in Trumbull, in violation of § 53-76 of the General Statutes. Kohlfuss was represented by private counsel, selected and engaged by him, up to and including his conviction and the imposition of sentence in the Superior Court. Afterward, his counsel refused to take an appeal and ultimately was allowed to withdraw, and Kohlfuss undertook the appeal himself, the state supplying him with a transcript. The appeal came on for hearing before this court at the October, 1964, term and on the court's recommendation, made after inspection of the record and Kohlfuss' so-called 'brief', Kohlfuss accepted the services of the public defender. The hearing was continued until the public defender had had an opportunity to consult with Kohlfuss, to procure such changes in the record, including an amended assignment of errors, as were necessary for the proper presentation of any claims of possible merit which Kohlfuss might have, and then to file a new brief in support of such claims. Actually, this took several months, and the appeal did not finally come before this court until the May, 1965, term. At the close of the arguments, counsel were asked to prepare a stipulation covering Kohlfuss' appearances in the state and federal courts. This was done in a stipulation of twenty-two items filed May 7, 1965. This stipulation has been used in this opinion in amplification and clarification of the finding. Attacks on four paragraphs of the finding as having been found without evidence are without merit. The claim that the conclusions of the court as to Kohlfuss' guilt were not supported by the subordinate facts of the finding is also without merit, although for reasons hereinafter stated that claim need not have been considered.

I

The first of the three basic claims of error raised in this appeal is a claim of disqualification on the part of Judge Louis Shapiro, who presided at the trial in the Superior Court on the breaking and entering case. The facts material to this claim will now be summarized. On November 15, 1960, Kohlfuss, also known as Kolfus, had pleaded guilty to a charge of robbery with violence, a crime for which the maximum permissible penalty is imprisonment for twenty-five years. General Statutes § 53-14. On November 29, he was sentenced on that plea to a term of not less than two nor more than seven years in the state's prison. On December 5, he chose to, and did, file an application for a review of the sentence by the sentence review division of the Superior Court. After hearing, the minimum sentence was increased from two to three years, thus leaving him with a sentence of not less than three nor more than seven years. He instituted an action of habeas corpus in the Superior Court on the ground that General Statutes § 51-196, insofar as it authorized the sentence review division to increase the sentence originally imposed, was unconstitutional. This proceeding was decided adversely to Kohlfuss' claim, and that decision, on July 27, 1962, was affirmed on appeal to this court in the case of Kohlfuss v. Warden, 149 Conn. 692, 694, 183 A.2d 626.

The present claim of disqualification is based on the fact that Judge Shapiro had been one of the three members of the sentence review division which had heard Kohlfuss' application for review of the robbery sentence. On January 18, 1963, Kohlfuss had been released on parole on the robbery conviction but was arrested on April 25 of that year on the present charge of breaking and entering the gasoline station. A plea of not guilty was entered on May 7, 1963, and Kohlfuss elected a trial by a jury of twelve. On June 11, 1963, the trial in the Superior Court began before Judge Raymond J. Devlin and the jury, but a mistrial was declared on the same day. On September 24, 1963, Kohlfuss appeared in court for the new trial, accompanied by his private counsel, who had represented him throughout. At that time, kohlfuss requested a change of election from jury to court, which was granted by Judge Shapiro, the judge regularly assigned to hold the criminal session, and immediately thereafter trial began. The trial was concluded the same day, and Kohlfuss was found guilty as charged.

After the finding of guilty, Kohlfuss was put to plea on the second part of the information, which charged him with being a 'second offender' because of his previous conviction for robbery. To this second part of the information, he entered a plea of guilty, which will hereinafter be more fully discussed. After a presentence investigation, Kohlfuss, on October 11, 1963, was sentenced to not less than one nor more than eight years, to run consecutively with, and to commence on the termination of, the sentence under the prior robbery conviction.

In the first place, in a consideration of this claim of disqualification, it should be noted that the sentence review division has nothing to do with the ascertainment of guilt or innocence. Its powers are limited to a review of the sentence imposed. General Statutes §§ 51-195, 51-196. There had been no previous trial before Judge Shapiro in which a 'new trial [had been] granted, or in which the judgment [had bee] reversed by the supreme court of errors' within the provisions of § 51-41 of the General Statutes. Thus, there was not even a technical infraction of the disqualification provisions of that statute, as was the situation, for instance, except for the consent to the judge's trying the case, in State v. DeGennaro, 147 Conn. 296, 304, 160 A.2d 480.

In the second place, under § 51-42, proceedings before a disqualified judge are not void but merely voidable. And under the last sentence of § 51-39, if consented to in open court, the proceedings may not afterward be attacked on appeal. See cases such as State v. DeGennaro, supra. At no time prior to adjudication of guilt was it called to the attention of Judge Shapiro that he had served as a member of the sentence review division which reviewed Kohlfuss' sentence for the robbery conviction, although that had been more than two years before. Rather, Kohlfuss made no claim of disqualification until after his conviction of breaking and entering. While he was evasive when questioned by this court, he seems to claim that he brought the matter to the attention of his private counsel at some time prior to sentencing. In any event, after adjudication of guilt, the question of disqualification was raised in a conference in chambers before Judge Shapiro, participated in by the assistant state's attorney prosecuting the case and Kohlfuss' private counsel. At that late date, Judge Shapiro decided to complete the case by ordering a presentence investigation and, subsequently, imposing sentence.

There is no basis for any claim, nor is any made, that Judge Shapiro recognized Kohlfuss as having been before the sentence review division when Judge Shapiro was a member of it or that Judge Shapiro had, or was given, any inkling during the breaking and entering trial that Kohlfuss had in mind making a claim of disqualification if the judgment went against him.

The sentence under the breaking and entering conviction is so lenient that it is obvious that Judge Shapiro was in nowise prejudiced against Kohlfuss subsequent to the conviction when the claim of disqualification was first mentioned.

On the other hand, there is no basis for any claim, nor is any made, that Kohlfuss himself did not recognize and remember Judge Shapiro, especially since the sentence review division had increased the minimum of the sentence on the robbery conviction.

Finally, Kohlfuss' conduct, especially in the light of his change of election from jury to court before the very judge who he now claims was disqualified to hear the case at all, can be construed only as consent in open court, which, under the last sentence in General Statutes § 51-39, disabled him from now claiming any disqualification on Judge Shapiro's part. State v. DeGennaro, supra.

II

For convenience, we next consider the third and final basic claim made in Kohlfuss' brief, which is that there was error in sentencing Kohlfuss as a 'second offender.' To understand this claim some further facts are required. This appeal from the breaking and entering conviction of October 11, 1963, was filed by Kohlfuss on October 25, 1963.

During the pendency of this appeal, Kohlfuss filed two petitions for habeas corpus in the United States District Court for the District of Connecticut. The first, filed January 24, 1964, claiming double jeopardy, was denied on May 18, 1964. Another application for a writ of habeas corpus was filed on July 15, 1964, and was heard on September 1. This latter application was granted on October 13, 1964, in a judgment holding, in effect, that the state should have furnished counsel to Kohlfuss when he appeared before the sentence review division, and ordering a new hearing before that division, with counsel to be provided by the state. Pursuant to this mandate, a new hearing before the division was set for January 12, 1965, but Kohlfuss then refused to have his case heard and withdrew his application for a hearing. As a result of that action, on January 19, 1965, the United States District Court modified its original habeas corpus decision of October 13, 1964, so as to deny both Kohlfuss' request that he be discharged from prison and...