State v. Phidd

• Decision Date: 23 May 1996
• Docket Number: No. 13999,13999
• Citation: State v. Phidd, 681 A.2d 310, 42 Conn.App. 17 (Conn. App. 1996)
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Raymond PHIDD.

Page 310

681 A.2d 310

42 Conn.App. 17

STATE of Connecticut v.Raymond PHIDD.

No. 13999.

Appellate Court of Connecticut.

Argued Nov. 27, 1995.

Decided May 23, 1996. ^*

[42 Conn.App. 18] Mary Miller Haselkamp, Assistant Public Defender, for appellant (defendant).

James M. Ralls, Assistant State's Attorney, with whom, on the brief, were Donald Browne, State's Attorney, and Cornelius Kelly, Assistant State's Attorney, for appellee(state).

Before DUPONT, C.J., and LAVERY and HEIMAN, JJ.

DUPONT, Chief Judge.

The defendant appeals from the judgment of conviction, following a jury trial, of possession of marijuana with intent to sell in violation of General Statutes § 21a-277(b).On appeal, the defendant claims that the trial court(1) denied him his state and federal constitutional rights to conflict free representation by failing to inquire of him about a possible conflict of interest arising because he and a codefendant were jointly represented for a time at his trial by the same counsel, and (2) denied him his right to due process and a fair trial by failing to declare a mistrial as a result of the alleged conflict of interest.We affirm the judgment of conviction.

Certain facts serve as the background for the issues raised.On August 6, 1990, a member of the Bridgeport police department witnessed drug activity on the corner of Stratford and Union Avenues.After observing three individuals for approximately fifteen minutes and believing that he had probable cause to arrest the individuals, he radioed for backup.Two additional officers arrived and arrested two of the three suspects, the defendant and David Bell.

The defendant and Bell were originally codefendants in a trial that began on May 29, 1991, in which both were represented by the same attorney.After the state presented its evidence against both, the state entered a nolle in Bell's case because it believed that the evidence was insufficient to support a conviction as to him.The attorney, as Bell's counsel, agreed not to make a motion to dismiss the case against Bell until after the jury returned a verdict in the defendant's case.¹The defendant's counsel at the close of the state's case moved for a judgment of acquittal on behalf of the defendant based on a claim of insufficient evidence, which the trial court denied.

The trial proceeded against the defendant only, and the jury was made aware of that fact before the defendant presented his case.²The defense called both the defendant and Bell as witnesses.Bell's testimony was favorable to the defendant.Bell testified that he was walking up Stratford Avenue, from the direction of Carol Avenue, where he met the defendant and where he and the defendant talked for several minutes before departing.The defendant testified that he was walking to his girlfriend's house that night when he encountered Bell and, after a brief discussion, began walking down Union Avenue where he was arrested.The jury returned a verdict of guilty on May 31, 1991, and the defendant was sentenced on August 29, 1991.No direct appeal was taken from the judgment of conviction.

On July 7, 1992, the defendant, pro se, filed a petition for a writ of habeas corpus, alleging that "my lawyer didn't file the paper,""the lawyer didn't follow through," and that the defendant had "no knowledge of what my lawyer was obligated to do for me."On May 20, 1994, the habeas court, Sferrazza, J., pursuant to a stipulation between the parties, restored the defendant's appellate rights.On August 26, 1994, another trial court, McGrath, J., waived fees, costs, and security necessary for taking the appeal.The defendant appealed from the judgment of conviction on September 13, 1994.³

IHABEAS COURT'S POWER TO RESTORE APPELLATE RIGHTS

Before addressing the defendant's claims on appeal, we must first address the issue of the jurisdiction of the habeas court to accept the stipulation and to extend the time for appeal to this court by restoring the defendant's right to appeal his conviction.This necessarily requires an answer to the question of whether the habeas court had the power to restore an appellate right to appeal not previously exercised by the defendant.The issue of whether a habeas court can grant the relief of restoration of an appeal right, upon stipulation of the parties, has not yet been definitively resolved in this state.SeeDouglas v. Warden, 218 Conn. 778, 791, 591 A.2d 399(1991).

The stipulation provided: "The parties in the above-captioned case hereby stipulate that the Petitioner's right to appeal his conviction(s) in Docket Nos. CR-54545 and CR-54534, from the Judicial District of Fairfield at Bridgeport, GA 2, be restored in full; and that the Petitioner's application for a writ of habeas corpus, now pending, is withdrawn without prejudice.Said application for a writ of habeas corpus may be reinstated upon completion of the Petitioner's appeal, if necessary."The effect of the acceptance of the stipulation by the court was to restore the defendant's right to a direct appeal that had expired nearly three years previously.

Our analysis begins with the recognition of two relevant principles.First, the time within which to bring an appeal when established by judicial rule is not a jurisdictional limit;New England Savings Bank v. Meadow Lakes Realty Co., 235 Conn. 663, 668 A.2d 712(1996); second, there is no constitutional right to an appeal, but rather a statutory right.Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821(1985).The significance of the former is that we are not dealing with a situation in which the trial court has attempted to thrust jurisdiction on us where no jurisdiction could exist, and the significance of the latter is that, although we are not dealing with a deprivation of a constitutional right to appeal, we are dealing with a cure for an allegedly unconstitutional deprivation of rights where a statutory right to appeal exists.If a state grants a statutory right to appeal judgments of conviction, the procedures relating to the appeal must conform with due process, including the right to have competent counsel to prosecute the appeal.Id.

Our analysis must also include the fact that the writ of habeas corpus is the subject of a statute, General Statutes § 52-470(a), which gives the habeas court the power to "dispose of the case as law and justice require" and that another statute, General Statutes § 51-14, provides that the appellate rules of practice cannot abridge, enlarge or modify any substantive right or the jurisdiction of the courts.

There is a paucity of Connecticut cases that discuss, either directly or indirectly, this issue of whether a habeas court has jurisdiction to reinstate appellate rights of a defendant that would otherwise have been lost because of untimeliness.In Fredericks v. Reincke, 152 Conn. 501, 208 A.2d 756(1965), the issue of a habeas court's ability to reinstate a right to appeal a judgment of conviction was addressed.In Fredericks, the petitioner sought a writ of habeas corpus claiming that his constitutional right to counsel was violated because his counsel had allowed his direct appeal to be dismissed for lack of diligence.The court, relying on Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811(1963), found that "the plaintiff had been denied his right to counsel to perfect his appeal and directed his discharge from prison unless, at his further request, counsel was appointed to pursue his appeal and necessary extensions of time in which to perfect the appeal were granted."(Emphasis added.)Fredericks v. Reincke, supra, at 503, 208 A.2d 756.

The respondent warden cross appealed in Fredericks claiming that the habeas court was without authority to allow a late appeal.Id., at 506, 208 A.2d 756.

The court, after stating that ordinarily the Superior Court lacks authority to allow a late appeal, reasoned that if, in a habeas case, it has been properly determined that an appeal would have existed to complain of the denial of a right granted by the federal constitution, any rule restricting an appeal merely because of lapse of time would necessarily be ineffective.Id., at 508, 208 A.2d 756.Thus, the Fredericks court recognized that a habeas court has the power in some instances to reinstate an appeal.The rationale for the Fredericks reinstatement of the defendant's appeal is that because the defendant was constitutionally entitled to competent counsel to represent him on appeal, no rule can absolutely prevent the habeas court from reinstating that appeal where the appeal had been dismissed for a failure of counsel to prosecute it.⁴

Fredericks involved a request for a reinstatement of an appeal that had previously been dismissed whereas the present case involves the restoration of the right to take a direct appeal, no appeal having ever been taken.Under the circumstances of the present case, there is no significant difference between an order of reinstatement by the habeas court and the order of restoration because the claim in Fredericks and in this habeas appeal is the ineffective assistance of appellate counsel.⁵

In LaReau v. Reincke, 158 Conn. 486, 490, 264 A.2d 576(1969), our Supreme Court addressed the issue of whether the petitioner's failure to file an appeal from a habeas court's action within the requisite twenty day period constituted a jurisdictional defect stripping the appellate courts of power to entertain the appeal, or whether the respondent's failure to object in a timely manner to an untimely appeal within ten days constituted a waiver.The court found that the twenty day time period was a rule of court and not a constitutionally or statutorily created condition precedent for a court's jurisdiction.Id., at 492, 264 A.2d 576.Because the rule did not affect an appellate court's jurisdiction, the court concluded that the respondent waived his ability to object by failing to file a motion to...