State v. White

• Decision Date: 19 June 2018
• Docket Number: AC 39105
• Citation: 182 Conn.App. 656,191 A.3d 172
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Antuan WHITE

182 Conn.App. 656

191 A.3d 172

STATE of Connecticut

v.Antuan WHITE

AC 39105

Appellate Court of Connecticut.

Argued December 6, 2017

Officially released June 19, 2018

Temmy A. Miller, assigned counsel, with whom were Catherine Spain, assigned counsel, and, on the brief, Owen R. Firestone, assigned counsel, for the appellant (defendant).

Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, John P. Doyle, Jr., senior assistant state's attorney, and Karen A. Roberg, assistant state's attorney, for the appellee (state).

Prescott, Elgo and Beach, Js.

BEACH, J.

This case turns on the issue of the appropriate role of assigned counsel in the context of a motion to correct an illegal sentence following State v. Casiano , 282 Conn. 614, 922 A.2d 1065 (2007). The defendant, Antuan White, appeals from the judgment of the trial court denying his motion to correct an illegal sentence. The defendant claims that the trial court erred by (1) declining to appoint counsel to represent him on the merits; (2) denying his motion on the merits; and (3) deciding the merits of the motion to correct, despite having previously considered the merits of the issues during the hearing regarding the appointment of counsel. We disagree and affirm the judgments of the trial court.

The following undisputed facts and procedural history are relevant to our resolution of the defendant's claims. They arise primarily from four separate proceedings: a plea hearing on November 22, 2005, arising out of five separate criminal dockets; a sentencing proceeding on December 13, 2006; a hearing on November 25, 2015, to determine whether counsel would be appointed to represent the defendant; and a hearing on the merits of the motion to correct, held on January 4, 2016.

On November 22, 2005, the defendant appeared before the trial court, Alexander, J. , and pleaded guilty to, inter alia, three counts of possession of narcotics with intent to sell in violation of General Statutes (Rev. to 2005) § 21a–277 (a). The defendant also admitted violating his probation in violation of General Statutes § 53a–32. The plea agreement was entered into pursuant to State v. Garvin , 242 Conn. 296, 699 A.2d 921 (1997).¹ An agreed upon sentence was stated on the record: the defendant was to be sentenced to twelve years of incarceration, suspended after seven years, and a three year period of conditional discharge. The defendant also agreed to the express condition that he appear for sentencing on January 13, 2006. The court advised the defendant that the guilty pleas were "permanent" and that the plea agreement was "off" if he didn't appear on January 13, and that his failure to appear would expose him to a sentence of up to fifty-three years. The defendant affirmed his understanding. The court found the defendant's pleas "to be voluntarily, knowingly made. There was a factual basis [for the pleas]. [The defendant] had the assistance of competent counsel. [His] pleas are accepted and a finding of guilty, finding of violation of probation is made." The court continued the matter to January 13, 2006, for sentencing.

The defendant, however, did not appear for sentencing on January 13, 2006. He was rearrested approximately seven months later. On December 13, 2006, the defendant appeared for sentencing before Judge Alexander on the charges to which he had pleaded guilty on November 22, 2005.

During the sentencing hearing, the state discussed a letter that the Department of Correction had intercepted. It was allegedly written by the defendant prior to sentencing. The letter directed its recipient to a location where drugs and money could be found. The prosecutor stated that the letter was written on approximately October 31, 2006, several days after the defendant's arraignment on his rearrest.

At the sentencing, the court considered the defendant's "significant and serious criminal history," which led the court to conclude that the defendant was "not amenable ... to any form of rehabilitation." The court then stated: "I understand the Garvin rule. I understand the nature of it. I am trying to adhere to what I believe the guidelines are in there. I know it would give the court the authority to impose a full maximum of fifty-three years.... [T]hat would be excessive. I recognize that. But I do recognize that this is an egregious case given the number of times [the defendant] has been convicted of the sale of narcotics, and his prior criminal history, and the circumstances that surrounded his being taken into custody for three failures to appear. As well as what is alleged to be continuing criminal conduct that [the Department of ] Correction believed worthy to bring to the attention of the state police in his attempts to reach out into the community to continue his pattern of narcotics association. " (Emphasis added.) The court then sentenced the defendant to a total effective sentence of fifteen years of incarceration, to be followed by five years of special parole.

On July 21, 2014, the defendant, representing himself, filed a motion to correct an illegal sentence. He claimed that his sentence was unlawful because he had not been afforded the opportunity to withdraw his pleas after his failure to appear on January 13, 2006. The defendant also asked for the appointment of counsel pursuant to Casiano . Joseph Lopez, an attorney in the public defender's office, was appointed, on July 25, 2014, to represent the defendant for the purpose of the review mandated by Casiano .

On November 25, 2015, a hearing was held before the trial court, Clifford, J. , to determine whether a sound basis existed for the appointment of counsel to prosecute the merits of the defendant's motion to correct an illegal sentence. The court stated its understanding of the history of the case and invited Lopez to comment as to whether the defendant should be afforded a lawyer to represent him on his motion. Lopez said: "Under the Casiano case, when a public defender is appointed for the limited appearance, it is our rule to take a look at these, independently look at the claims to see if there is any sound basis. It's the one and only time that I'm aware of where I am not an advocate for my client, but really have to do an independent review first. So it is an unusual situation. I just want my client to understand ... that that's what the court requires me to do." (Emphasis added.)

Lopez then addressed the ground raised in the defendant's self-represented written motion to correct. He said that he did not think that the court had jurisdiction over the defendant's claim that his guilty pleas had been voided in their entirety by the defendant's failure to appear at the scheduled sentencing proceeding. The court surmised that perhaps the defendant misunderstood the import of Judge Alexander's telling the defendant during the plea hearing that if he did not appear for sentencing on January 13, "then your plea agreement is off"; the defendant may have interpreted the court's statement to mean that, if he did not appear for sentencing, he would "start again" because the prior agreement was "off." Lopez stated his opinion that this issue did not meet the jurisdictional requirements of a motion to correct an illegal sentence.

Lopez then addressed possible claims that had not been raised in the defendant's written motion to correct. Although the record is not clear as to who formulated these claims, it is clear that they were developed prior to the hearing either through consultation between Lopez and the defendant or by Lopez himself. In any event, Lopez discussed a possible claim that Judge Alexander had relied on inaccurate information in the course of the sentencing hearing, to wit, that the state had misrepresented the date of the intercepted letter. Lopez opined that the court had jurisdiction over this claim, but that the record did not show that Judge Alexander had relied on the incorrect information in sentencing the defendant. Lopez accordingly expressed his opinion that there was not a sound basis for this claim.

Lopez also stated his opinion that the court did not have jurisdiction to consider a claim that Judge Alexander improperly became aware, prior to sentencing, of an offer of ten years of incarceration, which offer had been mentioned in the intercepted letter, and that she was, therefore, prohibited from sentencing the defendant because she had become aware of extraneous information. Finally, Lopez also stated his opinion that the court did not have jurisdiction to consider the defendant's claim that Judge Alexander properly could rely only on the defendant's failure to appear in increasing his sentence. Lopez concluded: "My opinion, which doesn't matter, is that [the defendant] got a heavy sentence, but my job here under ... Casiano , that's none of my—I have no standing. It's not up to me to decide sentences. It's up to me to look [if] there [is] any illegality in the sentencing and I don't see it and I tried looking for something."

The court then ruled only on the issue of appointment of counsel: "I'm ruling on the Casiano claims right now. I'm not ruling on the motion substantively." It restated the opinions of Lopez regarding the soundness of the defendant's claims and stated that, having independently examined the claims, it agreed that the claims lacked a sound basis. The court stated: "So even under State v. Francis , [148 Conn. App. 565, 86 A.3d 1059 (2014) ( Francis I ), rev'd, 322 Conn. 247, 140 A.3d 927 (2016) ], I certainly think counsel has explained [his] reasons to you why [he] feel[s] [he] should not be filing a full appearance ... after [he] diligently reviewed all of the relevant parts of the record and case law, and I agree with [him] under my understanding and research of the case law also." The court ruled that there was not a sound basis for continued representation and told the defendant that he could argue the merits of...