State v. Pascucci

Decision Date25 June 1971
Citation161 Conn. 382,288 A.2d 408
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Albert PASCUCCI.

Howard T. Owens, Jr., Sp. Public Defender, for appellant (defendant).

Arlen D. Nickowitz, Asst. State's Atty., for appellee (state).

Before HOUSE, C.J., and THIM, RYAN, SHAPIRO and LOISELLE, JJ. concurring.

HOUSE, Chief Justice.

This appeal presents a very narrow issue. The defendant's sole assignment of error is that the court erred in denying his motion for the appointment of counsel to represent him on an appeal to this court and for an extension of time to file the appeal.

There is no dispute on the facts. On a jury trial, the defendant was found guilty of breaking and entering a dwelling house in the day season and, on a supplemental information, also tried to a jury, found guilty of being a second offender. He is an indigent person and was represented by the public defender. Judgment was rendered July 10, 1969. On October 31, 1969, that public defender filed a motion for the appointment of a special public defender to represent the defendant, informing the court that '(u)pon a review of the transcript and record, the Public Defender feels that an appeal would be frivolous.' The motion was granted by a judge other than the judge who had presided at the trial and a special public defender was appointed to represent the defendant. On March 19, 1970, that special public defender filed a report with the court. The report stated in detail what action the special public defender had taken. This included a review of the court record and transcript of the trial, consultation with trial counsel, research on questions of law and an interview with the defendant. It contained an analysis of the trial proceedings, the evidence, the rulings of the court and the basis for the defendant's own claims of error in the course of the trial. The report ended with the statement that the special public defender 'concludes that there is no substantial error which he can in good faith assign on appeal.' Judicial action on the report is indicated by the notation '3-24-70 Report Accepted, O'Sullivan, J., B.J. Luckart, Asst. Clerk.'

On April 10, 1970, the defendant by the same special public defender filed an appeal to this court, appealing 'from the judgment rendered therein denying his Motion For Appointment of Counsel and Extension of Time To File An Appeal.' This was also filed with the appeal as the sole assignment of error. On the appeal to this court, the defendant has been represented by a third public defender, specially appointed to represent him on his claim that the court erred in refusing to appoint counsel to prosecute the appeal from his conviction notwithstanding the reports of the public defender and first special public defender that such an appeal would be frivolous and there existed no substantial error which could, in good faith, be assigned on an appeal from the conviction. The present appeal, accordingly, is not from the conviction of the defendant but to test whether the state has satisfied its burden and responsibility to provide counsel to the indigent difendant to pursue an appeal.

In appointing the first special public defender to represent the defendant, the court properly followed the course which this court prescribed in Fredericks v. Reincke, 152 Conn. 501, 208 A.2d 756. That case was decided in 1965 following the dictates of the United States Supreme Court in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811. We said, in the Fredericks case (152 Conn. p. 505, 208 A.2d p. 758): '(W)hen the * * * public defender who conducted the plaintiff's defense at his trial came to the conclusion that he could not conscientiously proceed with the appeal which he had taken to preserve the plaintiff's rights, * * * and had notified both the plaintiff and the court of his decision, the plaintiff was entitled to have competent counsel appointed to represent him on the appeal,' and, further, '(i) f * * * new counsel, after interviewing the plaintiff and his witnesses, consulting with trial counsel, examining the trial record and conducting such investigation as he deems necessary to ascertain the merits of the appeal, comes to the conclusion that there is no substantial error which he can assign on appeal and so advises the plaintiff and the trial court, the constitutional requirement is satisfied and the plaintiff could not demand that the trial court find and appoint other counsel who will advise an appeal.'

Subsequently, the United States Supreme Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, outlined the procedure which it held was constitutionally required in such circumstances to assure to indigent defendants substantial equality and fair process on appeal. These requirements are substantially the same as those prescribed in the Fredericks case. In the Anders case, the court said (pp. 744, 745, 87 S.Ct. p. 1400): 'The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. * * * Of course, if counsel finds his case to be wholly frivolous,...

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41 cases
  • Andrew B., In re
    • United States
    • California Court of Appeals Court of Appeals
    • 30 November 1995
    ...for a court to review the record to determine the correctness of counsel's assessment of the case. (See State v. Pascucci [ (1971) 161 Conn. 382 (288 A.2d 408, 410) ].) The court itself must expressly determine whether the appeal is wholly frivolous. Since the [United States Supreme Court's......
  • Oliphant v. Comm'r of Corr.
    • United States
    • Connecticut Court of Appeals
    • 29 October 2013
    ...supra, at 285, 68 A.3d 1184. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Pascucci, 161 Conn. 382, 385, 288 A.2d 408 (1971), “stand for the proposition that when a motion to withdraw as counsel is filed asserting that there are no nonfrivolous issue......
  • Lorthe v. Commissioner of Correction, 26354.
    • United States
    • Connecticut Court of Appeals
    • 11 September 2007
    ...of Anders v. California, supra, 386 U.S. 738, 87 S.Ct. 1396, that the de novo standard of review applies. See also State v. Pascucci, 161 Conn. 382, 288 A.2d 408 (1971); Fredericks v. Reincke, 152 Conn. 501, 208 A.2d 756 (1965). A review of the development of the Anders doctrine informs our......
  • People v. Hackett, A067229
    • United States
    • California Court of Appeals Court of Appeals
    • 20 July 1995
    ...[419 N.Y.S.2d 913, 393 N.E.2d 987]; High v. State (Tex.Crim.App.1978) 573 S.W.2d 807; Holloway v. Hopper (1975) 233 Ga. 615 ; State v. Pascucci (1971) 161 Conn. 382 ; Darby v. State (1971) 257 S.C. 200, 184 S.E.2d 699; People v. Hoffman (1969) 382 Mich. 66 ; Commonwealth v. Baker (1968) 429......
  • Request a trial to view additional results
2 books & journal articles
  • TABLE OF CASES
    • United States
    • Full Court Press Connecticut Legal Ethics & Malpractice Table of Cases
    • Invalid date
    ...414 U.S. 976 (1973) 6-1 State v. Nalewajk, 190 Conn. App. 462 (2019) 2-1 State v. Oehman, 212 Conn. 325 (1989) 2-5:2 State v. Fascucci, 161 Conn. 382 (1971) 2-1 State v. Fayne, 260 Conn. 446 (2002) 6-1 State v. Felletier, 196 Conn. 32 (1985) 6-1 State v. Fiorkowski, 243 Conn. 205 (1997) 2-1......
  • CHAPTER 2 - 2-1 FRIVOLOUS CLAIMS
    • United States
    • Full Court Press Connecticut Legal Ethics & Malpractice Chapter 2 Tribunal Duties
    • Invalid date
    ...will result in a violation of a rules of professional conduct.[35] See In re Taijha H.-B., 333 Conn. 297, 320 (2019); State v. Pascucci, 161 Conn. 382, 385-86 (1971); Anders v. California, 386 U.S. 738 (1976). [36] Wittman v. Intense Movers, Inc., No. FSTCV166030430S, 2018 WL 4837342, at *3......

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