United States v. Reincke, 10557.

• Decision Date: 15 January 1965
• Docket Number: No. 10557.,10557.
• Citation: 254 F. Supp. 440
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES ex rel. Alfred W. KOHLFUSS v. Frederick G. REINCKE, Warden, Connecticut State Prison.

254 F. Supp. 440

UNITED STATES ex rel. Alfred W. KOHLFUSS v. Frederick G. REINCKE, Warden, Connecticut State Prison.

No. 10557.

United States District Court D. Connecticut.

October 9, 1964.

On Motion for Release from Custody January 15, 1965.

Thomas F. Parker, Gross, Hyde & Williams, Hartford, Conn., for petitioner.

Otto J. Saur, State's Atty., Fairfield County, Joseph T. Gormley, Jr., Asst. State's Atty., Fairfield County, Bridgeport, Conn., for respondent.

CLARIE, District Judge.

The petitioner is an inmate of the Connecticut State Prison, at Somers, Connecticut. He filed this petition for habeas corpus pursuant to 28 U.S.C.A. § 2254. The Court authorized him to proceed in forma pauperis as an indigent; counsel was appointed to represent him and thereafter on July 28, 1964, a hearing was held on the merits.

At the time of his original presentment for plea and subsequent sentence in the state court, the petitioner was an indigent and was represented by the public defender for Fairfield County. He was charged with the crime of robbery with violence, Conn.Gen.Stat. (Rev.1958) § 53-14, and entered a plea of guilty on November 15, 1960.¹ It was the sentence of the Court, that he serve a term of not less than two nor more than seven years in prison. His accomplice in the offense was sentenced to a term of not less than one nor more than five years. The fate of his companion, together with other circumstances related to the commission of the crime itself, caused him to believe that his sentence was excessive. He applied to the Review Division of the Connecticut Superior Court, requesting that it review his sentence pursuant to Conn.Gen.Stat. (Rev.1958) § 51-195.² He was granted a hearing at which he was not represented by counsel, while at this same hearing the government's position was presented by the prosecutor in the state court, the state's attorney.

As a result of this proceeding, his minimum sentence was increased to not less than three nor more than seven years. 22 Conn.Supp. 278, 169 A.2d 659 (Rev. Div.Super.Ct.1962). After having been thus resentenced, in the State Superior Court, without benefit of counsel, the petitioner applied to that same Court for a writ of habeas corpus, claiming that his constitutional rights had been violated because he had been placed in double jeopardy and had been denied due process of law. The writ was denied and on appeal to the State Supreme Court of Errors the decision was affirmed. 149 Conn. 692, 183 A.2d 626 (1962).

The petitioner was paroled on January 18, 1963, after having served his minimum time on the three to seven year sentence. On April 25, 1963, while out on parole, he was arrested on a charge of breaking and entering and convicted. He was immediately presented as a second offender and sentenced to serve from one to eight years. This sentence was to commence after he had served the remainder of his sentence as a parole violator. He is now serving the remainder of the three to seven year term.

Subsequently, a new petition for habeas corpus was filed by the petitioner in the States Superior Court. The matter was heard on June 11, 1964 and was summarily denied without benefit of memorandum. Petitioner alleges that the presiding judge orally stated that the denial of the writ was based upon the fact that the Court considered the question to be moot. A certificate of probable cause, permitting an appeal to the State Supreme Court of Errors was denied.

The thrust of petitioner's present claim is twofold: First, he contends that the action of the Review Division in ordering an increase of his sentence constituted double jeopardy and was a violation of his Federal Constitutional rights under the Fifth Amendment. This claim is summarily denied because the identical legal and factual issues have been previously litigated and passed upon by this Court.³ Secondly, he claims the state failed to provide counsel for him, when he required legal advice as to whether or not he should petition for a review of his original sentence, as well as at the hearing before the Review Board, and the subsequent resentencing.

There is no question but that the Sentence Review Board had the statutory authority to reduce his sentence, even to the extent of suspending it altogether and placing him on probation. In the alternative, the Board could have affirmed the Court's original sentence or increased it to the maximum provided by law, in this instance twenty-five (25) years.

It is the State's position that it fulfilled its legal obligations to this convicted defendant, when it provided him with counsel before and at the time he was put to plea, also when he was first sentenced. The fact that he thereafter initiated further proceedings of his own choosing, by filing an application for a review of his sentence was an elective act on his part. He did this with full knowledge that his sentence might be increased or decreased. The state claims that it was under no further legal obligation to provide counsel to this defendant before the Review Division of the Court, any more than it might be expected to provide counsel to a prisoner applicant before the Pardons Board or Parole Board. It contends that the Review Board hearings are neither an adversary proceeding nor an appeal and therefore constitutional guarantees do not apply.

The petitioner, on the other hand, claims that the criminal procedures followed were basically illegal, because he was denied the right to counsel as an indigent. He contends that the proceeding was in fact a material and integral part of the criminal sentencing procedure and that his rights were prejudiced by the state's failing to provide him with counsel.

It has now been firmly established that where we are concerned with the one and only appeal which an indigent criminal has of right, in both the state and federal courts, the law requires that the defendant be represented by counsel at all stages of the proceedings. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461.

In the present case, a basic question to be resolved is whether the Connecticut Legislature, when it approved the law establishing the Sentence Review Division, created a right of limited appeal to try the issue of the appropriateness of punishment imposed by the sentencing judge. If it did, then it established a statutory appeal procedure which required that indigent convicted defendants should be afforded the benefit of counsel. The denial of such a right would not provide an accused due process of law under the Fourteenth Amendment.

The First Interim Report of the Connecticut Prison Study Committee (Dec. 3, 1956), which preceded the adoption of the system, reveals the purpose and philosophy of the legislation.⁴ It indicates that three distinct procedures were considered before deciding upon the one recommended. The first was the "Adult Authority Board", which determined the length of time to be served by a convicted criminal after the court had prescribed the maximum term. The second was a limited appeal to the Supreme Court of Errors restricted solely to a consideration of the appropriateness of the sentence; and the third was the one finally adopted, a Review Division of three Trial Court Judges. The wide variance and inequality in the sentences imposed by different judges for the same crime, a circumstance attributed to the personal bias and prejudice of individual judges, had created conditions of seeming injustice which encouraged unrest and tension among inmates at the prison. It was this pressing problem which the Committee originally sought to eliminate.⁵

The law as first adopted did not permit increases in sentence. Conn. Pub. Laws, Jan. Sess. 1957, P.A. 436, § 2.⁶ However, the act was subsequently amended to give the Division that power. Conn. Pub. Laws, Sept. Spec. Sess. 1957, P.A. 14, § 2. Conn.Gen.Stat. (1958) § 51-196.⁷ It is the latter statute with which we are presently concerned and it provides for a limited criminal appeal, addressed not to the question of guilt or innocence, but to challenge only the appropriateness of the punishment prescribed in the sentence. While it seeks the downward revision of an alleged excessive penalty, the law permits an upward revision to the extent of the maximum punishment prescribed by law for the particular crime. Thus, as a direct result of such an appeal, an individual's personal liberty could be restrained for an extended period of time beyond his original sentence. The law specifically denies an appeal from this decision.⁸ The subsequent resentencing by the Court is simply a ministerial act, wherein the penalty determined by the Review Division is imposed upon the defendant.

No one would dispute the fact that if this petitioner were to have appealed his original conviction directly to the State Supreme Court of Errors, he would have had the legal right to counsel both in the preparation and in argument of his appeal.⁹ For most defendants, the issue of guilt or innocence is no more important than the punishment that could be inflicted, if guilt were established. The appropriateness of the punishment imposed is vitally important to each individual's personal liberty. When the Legislature vested the Review Division with discretion not only to modify but also to increase the sentence of convicted defendants to the statutory maximum, it made its appeal procedure an integral part of the criminal sentencing process. It is in fact an appeal as of right, which can be exercised by a convicted criminal.

"It is a right which a person convicted of crime has under the law and the only practical method existing whereby he may have the sentence imposed upon him reviewed." Pullen v. Warden, Superior Ct. Hartford County, No. 137324 (May 11, 1964).

In this case, the Government was...