State v. Mendez, AC 41116

• Decision Date: 16 October 2018
• Docket Number: AC 41116
• Citation: 185 Conn.App. 476,197 A.3d 477
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Kezlyn MENDEZ

185 Conn.App. 476

197 A.3d 477

STATE of Connecticut

v.Kezlyn MENDEZ

AC 41116

Appellate Court of Connecticut.

Argued May 29, 2018

Officially released October 16, 2018

Kezlyn Mendez, self-represented, the appellant (defendant).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Robin D. Krawczyk, senior assistant state's attorney, for the appellee (state).

Alvord, Prescott and Pellegrino, Js.

ALVORD, J.

In this direct criminal appeal, the self-represented defendant, Kezlyn Mendez, claims that the trial court violated his right to due process by improperly granting his court-appointed appellate counsel's motion for leave to withdraw her appearance in accordance with Practice Book § 62-9 (d). We affirm the judgment of the trial court.

Practice Book § 62-9 (d) (1) directs any appointed appellate counsel who concludes, in accordance with Practice Book § 43-34, that an appeal would be wholly frivolous to file under seal with the appellate clerk a motion for leave to withdraw his or her appearance along with a memorandum of law, commonly referred to as an Anders¹ brief, in accordance with Practice Book § 43-35. "Counsel shall deliver a notice that a motion for leave to withdraw as appointed counsel has been filed, but shall not deliver a copy of the motion and supporting ... memorandum of law to opposing counsel of record." Practice Book § 62-9 (d) (2). The motion, memorandum, and the transcripts of the relevant proceedings are then referred by the appellate clerk to the trial court for a decision. Practice Book § 62-9 (d) (3). If the trial court grants appointed appellate counsel's motion to withdraw, a copy of the court's decision is filed, under seal, with the appellate clerk, and counsel must notify his or her former client in writing of the trial court's decision, the current status of the appeal, and the defendant's responsibilities necessary to prosecute the appeal. Practice Book § 62-9 (d) (3). Section 62-9 (d) (3) further expressly provides that the trial court's decision "may be reviewed pursuant to [Practice Book §] 66-6."

A motion for review pursuant to Practice Book § 66-6 is the proper vehicle by which to obtain review of an order concerning the withdrawal of appointed appellate counsel after an appeal has been filed. See Practice Book § 62-9 (d) (3) ("If the trial court grants the motion to withdraw, counsel shall immediately notify his or her former client, by letter, of the status of the appeal and the responsibilities necessary to prosecute the appeal.... The trial court's decision shall be sealed and may be reviewed pursuant to Section 66-6.").

In the present case, the defendant's court-appointed appellate counsel sent the defendant a letter notifying him of the court's decision granting her motion to withdraw and, as required by Practice Book § 62-9 (d) (3), provided him with instructions on how to proceed with the appeal as a self-represented party. Significantly, the instructions explained: "You can try filing a [m]otion for [r]eview of the trial court's decision on the Anders motion. ( [Practice Book] § 66-6 ) Remember that you only have [ten] days to file this from the date of the notice of the order. If you do, remember to ask for an extension of time to file your brief until [twenty] or [thirty] days after the motion is decided."

The defendant did not file a motion for review, but did file an appellate brief. Although the defendant could have pursued and briefed any appellate claim he deemed meritorious regarding the underlying judgment of conviction, he raised in his appellate brief only his claim that counsel should not have been permitted to withdraw. He did so, despite the clear instructions informing him that he could file, pursuant to Practice Book § 66-6, a motion for review of the trial court's decision on appellate counsel's motion for permission to withdraw her appearance. Because the defendant did not comply with Practice Book § 62-9 (d) (3) and, instead, raised the issue in his direct appeal, we decline to review his claim. In addition, because the defendant has not raised or adequately briefed any claim that directly challenges the judgment of conviction from which he took this appeal, we deem any possible claims abandoned. See Joseph v. Commissioner of Correction , 153 Conn. App. 570, 574, 102 A.3d 714 (2014), cert. denied, 315 Conn. 911, 106 A.3d 304 (2015).

The judgment is affirmed.

In this opinion PELLEGRINO, J., concurred.

Although I agree with the majority that the judgment of conviction should be affirmed, in the interest of justice, I would follow a different path to that conclusion. The sole claim raised by the self-represented defendant in this direct criminal appeal is that the trial court violated his right to due process by improperly granting court-appointed appellate counsel's motion for leave to withdraw her appearance in accordance with Practice Book § 62-9.

As indicated by the majority, a motion for review pursuant to Practice Book § 66-6 is the proper vehicle by which to obtain review of an order concerning the withdrawal of appointed appellate counsel after an appeal has been filed. Nevertheless, for the reasons that follow, before turning to the merits of the appeal, I would treat the defendant's brief as a late motion for review, and would grant review but deny relief. Then, because the defendant failed to raise any claim challenging the merits of the judgment of conviction, I would, like the majority, affirm the judgment.

The criminal charges against the defendant arose out of the shooting death of a convenience store clerk. The defendant was represented throughout the underlying proceedings by Attorney R. Bruce Lorenzen, a public defender. The defendant confessed to shooting the clerk and, at trial, did not challenge that he was the shooter. Instead, the defendant argued that the firearm he used discharged accidently and that he committed the robbery under duress. A jury found the defendant guilty of felony murder in violation of General Statutes § 53a-54c and robbery in the first degree in violation of General Statutes § 53a-134 (a) (2).¹ Following his conviction and sentencing, the defendant filed an application seeking a waiver of fees, costs and expenses for appeal and the appointment of appellate counsel. The Office of the Chief Public Defender initially was appointed to represent the defendant and filed a timely appeal to the Supreme Court² on his behalf raising such issues as may appear from an examination of the record. Attorney Lisa J. Steele later filed an appearance on behalf of the defendant in lieu of the public defender's office.

On September 14, 2015, pursuant to Practice Book § 62-9, Steele filed with the Office of the Appellate Clerk a motion for leave to withdraw her appearance. According to Steele, on the basis of her review of the record and discussions with both the defendant and trial counsel, she asserted that an appeal in this case would be wholly frivolous. Steele, in accordance with the procedures set forth in Practice Book §§ 62-9 and 43-34 thru 43-38, submitted an Anders³ brief detailing the factual and legal basis for her conclusion. The motion and the Anders brief were forwarded to the trial court, Prats, J. , for a decision. On February 24, 2017, the trial court issued a memorandum of decision granting the motion to withdraw.

In accordance with Practice Book § 62-9 (d) (3), Steele sent the defendant a letter dated March 4, 2017, notifying him of the court's decision. Steele attached to the letter a three page, single spaced document titled "Filing a Pro Se Brief." That document contained numerous and detailed instructions on how to proceed with the appeal as a self-represented party. The following statement was included amidst other instructions describing the types of documents the defendant was permitted to file in prosecuting his appeal: "You can try filing a [m]otion for [r]eview of the trial court's decision on the Anders motion ( [Practice Book §] 66-6). Remember that you only have [ten] days to file this from the date of the notice of the order." Here, ten days expired on March 6, 2017, or two days after the letter was dated. The letter did not inform the defendant that a motion for review was his exclusive remedy or that he could not raise in his appellate brief any issue regarding the court's decision to grant the motion to withdraw. The defendant did not file a motion for review of the trial court's ruling allowing Steele to withdraw.

On April 7, 2017, the defendant filed an appearance as a self-represented party in lieu of Steele. He successfully filed a motion for additional time to file his brief, which he submitted on November 3, 2017. On November 30, 2017, the Supreme Court transferred the appeal to this court pursuant to Practice Book § 65-1.

Practice Book § 62-9 (d) directs that any appointed appellate counsel who concludes in accordance with Practice Book § 43-34 that an appeal would be wholly frivolous to file under seal with the appellate clerk a motion for leave to withdraw his or her appearance along with a memorandum of law in accordance with Practice Book § 43-35. Copies are not provided to the state. Practice Book § 62-9 (d) (2). The motion, brief, and any supporting transcripts are then referred by the appellate clerk to the trial court for a decision.

Practice Book § 62-9 (d) (3). If the trial court grants the motion to withdraw, a copy of the court's decision is filed, under seal, with the appellate clerk, and counsel must notify his or her former client in writing of the trial court's decision, the current status of the appeal, and the defendant's responsibilities necessary to prosecute the appeal. Practice Book § 62-9 (d) (3). Section 62-9 (d) (3) further expressly provides that the trial court's decision "may be reviewed pursuant to [Practice Book §] 66-6."

Practice Book § 66-6 provides in relevant part that this court "may, on written ...