State v. Francis , 322 Conn. 247 ( 2016 )

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STATE OF CONNECTICUT v. ERNEST FRANCIS
(SC 19378)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Robinson and Vertefeuille, Js.*
Argued January 26—officially released August 2, 2016
Margaret Gaffney Radionovas, senior assistant
state’s attorney, with whom, on the brief, were Gail P.
Hardy, state’s attorney, and Edward R. Narus, former
supervisory assistant state’s attorney, for the appel-
lant (state).
Christopher Duby, assigned counsel, with whom,
was Robert O’Brien, assigned counsel, for the appel-
lee (defendant).
Opinion
PALMER, J. The state appeals from the judgment of
the Appellate Court, which reversed the trial court’s
denial of the request of the defendant, Ernest Francis,
for the appointment of counsel to represent him in
connection with the filing of a motion to correct an
illegal sentence arising out of his 1992 conviction of
murder.1 In State v. Casiano, 282 Conn. 614, 627–28,
922 A.2d 1065 (2007), this court determined that, pursu-
ant to General Statutes § 51-296 (a),2 an indigent defen-
dant has a right to the appointment of counsel for the
purpose of determining whether a sound basis exists
for him to file a motion to correct an illegal sentence,
and, if such a basis is determined to exist, he also has
the right to counsel for the purpose of pursuing the
motion to its conclusion. On appeal, the state claims
that the Appellate Court incorrectly concluded that the
trial court was required to follow the procedure set
forth in Anders v. California, 386 U.S. 738, 744, 87 S.
Ct. 1396, 18 L. Ed. 2d 493 (1967),3 before it properly
could deny the defendant’s request for the appointment
of counsel on the ground that no sound basis existed
for him to file a motion to correct. We conclude that
the Anders procedure is not strictly required to safe-
guard the defendant’s statutory right to counsel in the
context of a motion to correct an illegal sentence. We
further conclude, however, that the trial court improp-
erly failed to appoint counsel to assist the defendant
in determining whether there was a sound basis for
him to file such a motion. Because we also conclude
that this error was harmful to the defendant, the case
must be remanded to the trial court so that counsel may
be appointed to represent the defendant in accordance
with the dictates of Casiano.
The opinion of the Appellate Court sets forth the
following undisputed facts and procedural history. ‘‘Fol-
lowing [his direct] appeal, [t]he defendant filed his first
motion to correct an illegal sentence in 2001, in which
he alleged that the sentencing court denied his right to
speak in mitigation of punishment, relied on inaccurate
information and failed to rely on information solely
within the record. The trial court . . . denied the
motion on the merits. On appeal, the Appellate Court
found that the trial court lacked jurisdiction to consider
the motion to correct because the defendant’s claims
did not attack the validity of the sentence, and
remanded the case with direction that the motion be
dismissed. . . . The defendant filed a second motion
to correct that was denied on the merits . . . [on]
November 18, 2005. In that motion, the defendant
alleged that the sentencing court improperly signed his
arrest warrant and presided over his probable cause
hearing. The Appellate Court summarily affirmed the
[denial of the second motion to correct] . . . .’’ (Inter-
nal quotation marks omitted.) State v. Francis, 148
Conn. App. 565, 567 n.2, 86 A.3d 1059 (2014).
Thereafter, ‘‘[t]he defendant, representing himself,
filed [a third] motion to correct on July 12, 2010, and
later amended it on October 12, 2010. On September 8,
2010, the date on which the [third] motion was initially
scheduled for a hearing, the court, Gold, J., opened the
hearing by engaging in the following colloquy with the
defendant and [a] public defender, R. Bruce Lorenzen:
‘‘The Court: . . . This is [the defendant’s] third
motion to correct what he alleges is an illegal sentence.
Are you doing this yourself or are you applying for the
public defender to review the claim?
‘‘The Defendant: I’d like to represent myself, Your
Honor.
‘‘The Court: Do you understand you have the right
to apply for a public defender? The public defender
would, pursuant to . . . State v. Casiano, [supra, 282
Conn. 627–28] review the file. If the public defender
felt that there was some potential merit to your claim,
the public defender would be appointed to represent
you. If the public defender said no, that [is, that] he
or she didn’t think there was sufficient likelihood of
success, then you could do it yourself if you wanted
to. But do you want to skip that step and just repre-
sent yourself?
‘‘The Defendant: I was assuming that had happened
when I first came in on . . . Casiano so we could save
time. But I mean, if I—I’m going to apply for the public
defender then.
‘‘[Attorney Lorenzen]: Judge—
‘‘The Court: Yes.
***
‘‘[Attorney Lorenzen]: [R.] Bruce Lorenzen, Public
Defender’s Office. The [court] clerk had alerted us to
[the defendant’s] claim. I have reviewed it. May I have
just a moment?
***
‘‘[Attorney Lorenzen]: Judge, again, I was made aware
of this case, and I’ve had an opportunity to review the
motion as well as some previous files that our office
has been involved in and my concern is not so much
on legal merit but potentially on procedural grounds.
There’s a problem in terms of us being appointed.
‘‘The Court: All right. So are you going to try to get
a special [public defender]?
‘‘[Attorney Lorenzen]: It’s not a conflict situation.
‘‘The Court: It’s not a conflict. So what are you pro-
posing?
‘‘[Attorney Lorenzen]: Judge, I really sympathize with
[the defendant’s] position, and I’ve told him, there’s an
emotional merit to his claim because what he cites in
his petition in terms of occurrences in court, as near
as I can tell, did, in fact, occur. My concern is more,
as the court started this proceeding by saying, that this
is the third [motion], the problem is more whether or
not it’s been previously addressed.
‘‘The Court: All right. I guess—
‘‘[Attorney Lorenzen]: And so in the limited confines
of Casiano, I think it would be my obligation to take
the position that this claim does not have sufficient
merit to justify appointment. But it’s—as I’m probably
sounding, it’s a close call, and it’s not—it’s a question
of whether previous courts have been wrong and the
way they look at things.
‘‘The Court: The first order of business as far as I’m
concerned on a motion to correct is to satisfy Casiano.
So that’s what I inquired [about]. He said yes. Are you
reporting then to the [c]ourt that based on your review
of the allegations and—
‘‘[Attorney Lorenzen]: It’s my considered opinion that
it does not have merit.
‘‘The Court: All right. Well, then, thank you. Then
. . . you understand that means that you’re going to
pursue this either by hiring with the help of a lawyer
that you hire yourself or else you’ll do it yourself?
‘‘The defendant responded to the court’s decision to
deny his request for appointed counsel with the follow-
ing objection to [Attorney] Lorenzen’s failure to specify
the grounds [on] which he had concluded that the
motion to correct lacked sufficient merit to warrant
appointing counsel thereon:
‘‘The Defendant: I understand the dictates of . . .
Casiano. However, I think that . . . Casiano, every-
one is overlooking [Anders] . . . as well as Fredericks
v. [Reincke, 152 Conn. 501, 208 A.2d 756 (1965)], which
is a Connecticut case on when a lawyer feels that a
case has no merit. [Attorney] Lorenzen comes in and
he doesn’t have anything on paper to point . . . [to]
issues that can, that I may be able to raise alternatively
if he feels it has no merit. I think [the] United States
Supreme Court has already spoken in [Anders] that
whenever a lawyer seeks to withdraw or seeks to say
that there’s no merit to a claim, the [s]ixth [a]mendment
[affords a defendant the] right to have [the lawyer] file
an [Anders] brief. I just want to put that on the record.
‘‘The Court: All right.
‘‘The Defendant: I just want to put that on the record.
If the [c]ourt feels that he doesn’t have to file an
[Anders] brief, that’s an issue I’ll take up on appeal.
‘‘The Court: Yes. The [c]ourt’s order is that [Attorney]
Lorenzen has satisfied his responsibilities by having
reviewed your third motion and having represented to
me that he does not feel the appointment of a public
defender or a special public defender is warranted in
this case.
‘‘The defendant then reiterated his request that [Attor-
ney] Lorenzen state the specific grounds [on] which he
had relied in concluding that [the defendant’s] motion
to correct had no merit. This request was denied by
the court in the following . . . colloquy with the
defendant:
‘‘The Defendant: . . . I don’t want to waste too much
time on this issue. What I’m saying is I’d like to know
what [Attorney Lorenzen’s] official position as to why
the case had no merits, so I can address that also.
‘‘The Court: Well—
‘‘The Defendant: So I don’t have to ask for articulation
or rectification for that.
‘‘The Court: I’m not going to require [Attorney Loren-
zen] to assume that responsibility. [He] has assessed
it, and it is his considered opinion, [Attorney] Loren-
zen’s, that this case, perhaps considering the prior
court’s rulings . . . deny[ing] [the] previous [motions
to correct]. I’m going to accept what [Attorney] Loren-
zen says.
‘‘The Defendant: Okay.
‘‘The Court: And I don’t believe he’s under any obliga-
tion to explain that any further.
‘‘The Defendant: I would just like to say that the issue
was never addressed. It’s not res judicata or collateral
estoppel because it was never raised before.
‘‘The Court: Oh, I’m not—
‘‘The Defendant: [Attorney] Lorenzen’s position that
it was addressed before as he conveyed to me, this
issue was never addressed.
‘‘The Court: I don’t think that’s what [Attorney] Loren-
zen said at all. He mentioned prior proceedings, but he
has assessed the merit of the claim that’s now before
this [c]ourt and has determined there’s an insufficient
likelihood of success and therefore has, pursuant to
Casiano, indicated to me that his office should not
be appointed.
‘‘The defendant went on to represent himself [in con-
nection with] his [third] motion to correct at a hearing
held on February 18, 2011. The court, Gold, J., denied
that motion on the merits . . . on June 7, 2011.’’ (Foot-
notes omitted; internal quotation marks omitted.) State
v. Francis, supra, 148 Conn. App. 570–74.
Thereafter, the defendant appealed to the Appellate
Court,4 claiming, among other things, that the trial court
had violated his right to counsel under § 51-296 (a) by
denying his request for the assistance of counsel with-
out adhering to the procedure set forth in Anders v.
California, supra, 386 U.S. 744.5 See State v. Francis,
supra, 148 Conn. App. 567, 575. In Anders, the United
States Supreme Court determined that, in order to effec-
tuate and safeguard an indigent defendant’s constitu-
tional right to the effective assistance of counsel,
‘‘counsel [who] finds his case [on appeal] to be wholly
frivolous, after a conscientious examination of it . . .
should so advise the court and request permission to
withdraw. That request must, however, be accompanied
by a brief referring to anything in the record that might
arguably support the appeal. A copy of counsel’s brief
should be furnished [to] the indigent [defendant] and
time allowed [for] him to raise any points that he
chooses; the court—not counsel—then proceeds, after
a full examination of all the proceedings, to decide
whether the case is wholly frivolous. If it so finds it
may grant counsel’s request to withdraw and dismiss
the appeal insofar as federal requirements are con-
cerned . . . .’’ (Internal quotation marks omitted.)
State v. Pascucci, 161 Conn. 382, 385, 288 A.2d 408(1971). The Appellate Court agreed with the defendant
that the trial court should have followed Anders in
denying his request for appointed counsel. State v.
Francis, supra, 569. In reaching its conclusion, the
Appellate Court noted that, although Casiano estab-
lished an indigent defendant’s right to counsel for the
purpose of determining whether a sound basis exists
for a motion to correct, it did not address the require-
ments of ‘‘sound basis’’ review, in particular, what steps
appointed counsel must take in advising a defendant
and the trial court of his or her determination that no
sound basis exists for the filing of the motion to correct,
and the steps the trial court must take to validate that
determination. Id., 583–84. The Appellate Court then
concluded that, ‘‘because the express rationale in Casi-
ano for extending the statutory right to counsel . . .
from appeals to motions to correct is that such motions
are functionally equivalent to appeals as vehicles for
challenging the legality of criminal sentences, [a crimi-
nal defendant’s] right to appointed counsel on a motion
to correct must be identical to, and thus be protected
by, the same procedural safeguards [that are] used to
protect [the] right to appointed counsel on appeal.’’
Id., 584.
Having determined that Anders applied to the defen-
dant’s claim, the Appellate Court next considered
whether the requirements of Anders were satisfied in
the present case. The Appellate Court concluded that
they were not satisfied in light of the trial court’s ‘‘failure
to appoint Lorenzen to represent the defendant’s inter-
ests by conducting a conscientious first tier of review
of relevant portions of the record in light of controlling
legal authorities to determine whether the defendant’s
claim was wholly frivolous . . . . [The Appellate Court
reasoned that] Lorenzen’s failure to explain his findings
to either the defendant or the court beyond a mere
conclusory statement, as well as the court’s failure to
perform its own independent, second tier of review of
the record in light of controlling legal authorities to
make its own determination as to whether the defen-
dant’s claims were wholly frivolous, violated the mini-
mum requirements of Anders . . . and the defendant’s
right to appointed counsel [in connection with] his
motion under § 51-296 (a).’’ Id., 590. Accordingly, the
Appellate Court reversed the trial court’s denial of the
defendant’s request for the appointment of counsel and
remanded the case to that court for a new hearing on
that motion. See id., 591.
On appeal to this court,6 the state claims that the
Appellate Court incorrectly determined that, pursuant
to § 51-296 (a), the trial court was required to follow
the Anders procedure before denying the defendant’s
request for the appointment of counsel. Specifically,
the state challenges the conclusion of the Appellate
Court that a motion to correct an illegal sentence is
sufficiently similar to a direct appeal that the same
procedures must govern the appointment of counsel in
both contexts. See id., 585. According to the state, the
Anders procedure is not necessary to safeguard the
statutory right to counsel in the limited context of a
motion to correct and will serve only to complicate and
delay the resolution of a motion that was intended to
be an expeditious mechanism for correcting an illegal
sentence. Finally, the state claims that any deficiency
in the process surrounding the trial court’s denial of
the defendant’s request for counsel was harmless
because the defendant’s motion to correct was subse-
quently denied by that court on its merits.
Although we agree with the state that the Anders
procedure is not needed to safeguard the statutory right
to counsel in the context of a motion to correct an
illegal sentence, our review of the record reveals that
the trial court did not appoint counsel to represent the
defendant even for the limited purpose of determining
whether a sound basis existed for him to file his motion.
We further conclude that this error was harmful to the
defendant, and, consequently, the case must be
remanded to the trial court so that counsel may be
appointed to represent the defendant as required by
Casiano.
Our analysis of this issue is guided by several well
established principles. First, it is axiomatic that ‘‘[t]he
judicial authority may at any time correct an illegal
sentence or other illegal disposition, or it may correct
a sentence imposed in an illegal manner . . . .’’ Prac-
tice Book § 43-22. A motion to correct an illegal sen-
tence ‘‘constitutes a narrow exception to the general
rule that, once a defendant’s sentence has begun, the
authority of the sentencing court to modify that sen-
tence terminates. . . . Indeed, [i]n order for the court
to have jurisdiction over a motion to correct an illegal
sentence after the sentence has been executed, the sen-
tencing proceeding [itself] . . . must be the subject of
the attack. . . . Therefore, the motion is directed to
the sentencing court, which can entertain and resolve
the challenge most expediently.’’ (Citations omitted;
footnote omitted; internal quotation marks omitted.)
State v. Casiano, supra, 282 Conn. 624–25.
Although ‘‘the [federal constitutional] right to
appointed counsel extends to the first appeal [as] of
right, and no further’’;7 Pennsylvania v. Finley, 481 U.S.
551, 555, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987); in
Connecticut, a defendant who wishes to file a motion
to correct an illegal sentence ‘‘has a [statutory] right
[under § 51-296 (a)] to the appointment of counsel for
the purpose of determining whether . . . [there exists]
a sound basis for doing so. If appointed counsel deter-
mines that such a basis exists, the defendant also has
the right to the assistance of such counsel for the pur-
pose of preparing and filing such a motion and, there-
after, for the purpose of any direct appeal from the
denial of that motion.’’ State v. Casiano, supra, 282
Conn. 627–28.
This court previously has not had occasion to con-
sider the procedure to be employed under Casiano
when an indigent defendant is denied the appointment
of counsel in connection with the filing of a motion to
correct an illegal sentence on the ground that there
exists no sound basis for such a motion. As we pre-
viously indicated, the Appellate Court concluded that
Anders should govern such decisions primarily because
‘‘Casiano expressly equated the importance of a motion
to correct to that of a criminal appeal . . . and thus
extended the same right to appointed counsel to the
former as to the latter.’’ State v. Francis, supra, 148
Conn. App. 585. We disagree with that conclusion for
several reasons.8
First, the only issue before this court in Casiano was
whether the phrase ‘‘any criminal action,’’ as used in
§ 51-296 (a); see footnote 2 of this opinion; was broad
enough to encompass a motion to correct an illegal
sentence. See State v. Casiano, supra, 282 Conn. 620–21.
Thus, our sole purpose in considering the importance
of a motion to correct within the overall framework of
our justice system was to determine whether that
motion constitutes a criminal action within the meaning
of § 51-296 (a). See id. We concluded that it does, stating
in relevant part: ‘‘Because a motion to correct an illegal
sentence is heard by the sentencing court and impli-
cates the legality of the proceeding at which the original
sentence was imposed, the motion necessarily bears a
close and direct relationship to the original sentencing
proceeding. The evident nexus between a motion to
correct an illegal sentence and the original sentencing
hearing, coupled with the fact that a criminal defendant
is constitutionally entitled to the assistance of counsel
at that original hearing . . . provides strong support
for the defendant’s claim that a motion to correct an
illegal sentence falls within the purview of ‘any criminal
action’ for purposes of § 51-296 (a).’’ (Citation omitted.)
Id., 625. We further concluded that, ‘‘because our crimi-
nal statutes provide for a first appeal as of right, a
defendant who challenges the legality of his or her
sentence on direct appeal is entitled to the assistance
of counsel in connection with that appeal. . . . It
would be odd for the legislature to deny the defendant
the right to counsel merely because the defendant has
chosen a wholly proper, alternate route to challenge
the legality of his sentence, namely, a motion to correct
an illegal sentence, rather than by way of a direct
appeal.’’ (Citation omitted.) Id., 625–26. However, in
resolving the issue before us in Casiano—whether a
motion to correct is a criminal action within the mean-
ing of § 51-296 (a)—we did not consider the entirely
different question of whether the safeguards employed
to protect a defendant’s constitutional right to
appointed counsel on direct appeal are also necessary
to protect the statutory right to counsel in the much
narrower context of a motion to correct an illegal
sentence.
In deciding that question now, we are mindful that the
United States Supreme Court has categorically rejected
the notion ‘‘that . . . Anders . . . should be applied
to a state-created right to counsel [for] postconviction
review just because [Anders] applie[s] to the right to
counsel on first appeal . . . .’’ Pennsylvania v. Finley,
supra, 481 U.S. 556. That court has concluded that,
because there is no underlying constitutional right to
appointed counsel in postconviction proceedings, crim-
inal defendants have ‘‘no constitutional right to insist
on the Anders [procedure] which [was] designed solely
to protect that underlying constitutional right.’’ Id., 557;
see also Austin v. United States, 513 U.S. 5, 8, 115 S. Ct.
380, 130 L. Ed. 2d 219 (1994) (right to Anders procedure
‘‘does not extend to forums for discretionary review’’).
Accordingly, states that elect to provide legal assis-
tance in postconviction proceedings ‘‘have substantial
discretion to develop and implement programs to aid
prisoners seeking to secure postconviction review’’;
Pennsylvania v. Finley, supra, 481 U.S. 559; and any
programs that they do adopt need not include ‘‘the full
panoply of procedural protections that the [c]onstitu-
tion requires be given to defendants who are in a funda-
mentally different position—at trial and on first appeal
as of right. In this context, [the United States Supreme
Court has determined that] the [c]onstitution does not
put [a] [s]tate to the difficult choice between affording
no counsel whatsoever or following the strict proce-
dural guidelines [set forth] in Anders.’’ Id.Nor do we believe that the state should be put to
such a choice in the context of a postconviction motion
to correct, which bears no resemblance to a direct
appeal in terms of the number and complexity of issues
that may be raised, a fact that necessarily bears on the
question of whether the same procedures are required
to protect the right to effective assistance of counsel
in both situations. Cf. Mathews v. Eldridge, 424 U.S.
319, 334, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) (even when
constitutional rights are implicated, ‘‘[d]ue process is
flexible and calls [only] for such procedural protections
as the particular situation demands’’ [internal quotation
marks omitted]). It goes without saying that direct
appeals are an essential and critical stage of a criminal
proceeding, intended to ensure that any errors commit-
ted at trial did not deprive the defendant of his right
to a fair trial. See, e.g., Gaines v. Manson, 194 Conn.
510, 515, 481 A.2d 1084 (1984) (‘‘[a]lthough there is no
constitutional right of appeal . . . the right to appeal,
once granted, invokes so significant a protection of
liberty that it must be made available to all persons
convicted of crimes’’ [citation omitted]). Claims that
may be brought on direct appeal involve every aspect
of the underlying proceeding, from arraignment to sen-
tencing and virtually everything in between. To effec-
tively prepare for such an appeal, therefore, appellate
counsel must engage in an in-depth review of the entire
record and applicable law, screening for all possible
errors—including sentencing errors—that may have
prejudiced the defendant and compromised his right to
a fair trial. See, e.g., McCoy v. Court of Appeals of
Wisconsin, District 1, 486 U.S. 429, 438, 108 S. Ct. 1895,
100 L. Ed. 2d 440 (1988) (‘‘[t]he appellate lawyer must
master the trial record, thoroughly research the law,
and exercise judgment in identifying the arguments that
may be advanced on appeal’’).
In stark contrast, the claims that may be raised in a
motion to correct an illegal sentence are strictly limited
to improprieties that may have occurred at the sentenc-
ing stage of the proceeding. See, e.g., State v. Lawrence,
281 Conn. 147, 158, 913 A.2d 428 (2007) (‘‘[i]n order for
the court to have jurisdiction over a motion to correct
an illegal sentence after the sentence has been exe-
cuted, the sentencing proceeding, and not the trial lead-
ing to the conviction, must be the subject of the attack’’).
Thus, we previously have explained that, ‘‘for the trial
court to have jurisdiction to consider the defendant’s
claim of an illegal sentence, the claim must fall into
one of [several specific] categories of claims that, under
the common law, the court has jurisdiction to review.’’
Id., 155. Those claims, which are typically identified by
the defendant prior to any involvement by the court or
appointed counsel, are that the sentence (1) exceeds
the applicable statutory maximum limits, (2) violates a
defendant’s right against double jeopardy, (3) is ambigu-
ous, (4) is internally inconsistent, or (5) was imposed
in an illegal manner. State v. Parker, 295 Conn. 825,
839, 992 A.2d 1103 (2010). Sentences imposed in an
illegal manner ‘‘have been defined as being within the
relevant statutory limits but . . . imposed in a way
[that] violates [a] defendant’s right . . . to be
addressed personally at sentencing and to speak in miti-
gation of punishment . . . or his right to be sentenced
by a judge relying on accurate information or considera-
tions solely in the record, or his right that the govern-
ment keep its plea agreement promises . . . .’’
(Internal quotation marks omitted.) Id.In light of the limited and straightforward nature of
the claims that may be raised in a motion to correct,
the potential merits of such a motion frequently will be
apparent to the court and appointed counsel from a
simple review of the sentencing record. Cf. State v.
Cator, 256 Conn. 785, 804–805, 781 A.2d 285 (2001) (trial
court properly determined that its original sentence for
murder and felony murder violated defendant’s right
against double jeopardy and properly merged convic-
tions); State v. Martin M., 143 Conn. App. 140, 147–48,
70 A.3d 135 (when record did not support defendant’s
claim that sentencing court improperly had relied on
vacated kidnapping conviction, defendant could not
establish that court relied on incorrect information in
sentencing defendant), cert. denied, 309 Conn. 919, 70
A.3d 41 (2013); State v. Mungroo, 104 Conn. App. 668,
684, 935 A.2d 229 (2007) (‘‘[p]lainly, the sentence of five
years imposed by the [trial] court exceeds the statutory
limit for the crime and must be corrected’’), cert. denied,
285 Conn. 908, 942 A.2d 415 (2008); Gombert v. Warden,
Superior Court, judicial district of Tolland, Docket No.
CV-10-4003855-S (August 22, 2013) (review of plea can-
vass demonstrated that petitioner’s claims concerning
plea agreement were not part of that agreement).
Accordingly, we can perceive no reason why appointed
counsel, having carefully reviewed the record for possi-
ble sentencing errors in light of governing legal princi-
ples and determined that none exist, must then be
required to file an Anders brief identifying anything in
the record that might arguably support a countervailing
view, or why the trial court should then be required to
undertake a full and independent review of the record
to determine whether it agrees with defense counsel’s
assessment of the defendant’s claimed sentencing
error.9
In reaching our conclusion, we are also mindful that
‘‘[t]he value of any prophylactic rule . . . must be
assessed not only on the basis of what is gained, but
also on the basis of what is lost.’’ (Internal quotation
marks omitted.) Montejo v. Louisiana, 556 U.S. 778,
793, 129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009). Suffice
it to say that we do not believe that the potential benefits
of requiring the Anders procedure in the present con-
text outweigh the costs, most notable among them
being delays that inevitably would occur in the adjudica-
tion of a motion intended ‘‘to provide prompt, direct
access to an uncomplicated legal process for correcting
the occasional erroneous or illegal sentence.’’ Gaddie
v. State, 566 N.E.2d 535, 537 (Ind. 1991); see, e.g., United
States ex rel. Green v. Washington, 917 F. Supp. 1238,
1276 (N.D. Ill. 1996) (noting that ‘‘a properly prepared
Anders [brief] is often more time-consuming than a
merits brief’’ and ‘‘imposes special burdens not only on
defense counsel, but also on the appellate tribunal itself,
to scour the record to make certain that no [nonfrivo-
lous] issues lurk there’’). Such delays, moreover, would
undoubtedly have an adverse effect on other criminal
defendants by diverting already limited judicial
resources away from their cases. This concern is no
small matter in view of the fact that there is no limit
to the number of motions to correct that may be filed
by a particular defendant, as demonstrated by the defen-
dant in the present case, who has now filed three
such motions.10
We therefore conclude that, when an indigent defen-
dant requests that counsel be appointed to represent
him in connection with the filing of a motion to correct
an illegal sentence, the trial court must grant that
request for the purpose of determining whether a sound
basis exists for the motion.11 See State v. Casiano,
supra, 282 Conn. 627. If, after consulting with the defen-
dant and examining the record and relevant law, coun-
sel determines that no sound basis exists for the
defendant to file such a motion, he or she must inform
the court and the defendant of the reasons for that
conclusion, which can be done either in writing or
orally. If the court is persuaded by counsel’s reasoning,
it should permit counsel to withdraw and advise the
defendant of the option of proceeding as a self-repre-
sented party.12
Finally, we must address the state’s contention that
any deficiency in the procedure employed by the trial
court in denying the defendant’s request for counsel
constituted harmless error because the court ultimately
addressed the merits of the defendant’s motion to cor-
rect. We note that this court has never considered
whether the denial of counsel for the purpose of
determining whether a sound basis exists to file a
motion to correct may be a structural error, which is
not subject to harmless error analysis. See, e.g., State
v. Gerardi, 237 Conn. 348, 362, 677 A.2d 937 (1996)
(‘‘[e]rrors that are not subject to harmless error analysis
go to the fundamental fairness of the [proceeding]’’).
We need not decide that question now, however,
because our review of the record persuades us that the
denial was harmful to the defendant.
As we previously indicated, the trial court did not
appoint Lorenzen as the defendant’s counsel so that
he could conduct the sound basis review required by
Casiano. Instead, as the Appellate Court explained,
‘‘Lorenzen was advised of the defendant’s motion by
the [court clerk] prior to the case being called, and he
reviewed the motion and certain other, unspecified files
in his office, never describing in detail to the court the
substance of any discussions with the defendant about
the claims he wished to make in his motion. . . . [A]t
[no] time after making his determination that the defen-
dant’s claim lacked sufficient merit to justify [his]
appointment [as counsel, however, did Lorenzen]
explain his findings to the defendant, as any attorney,
appointed or privately retained, must do, at a bare mini-
mum, out of courtesy, professional loyalty, and respect
for his own client.’’13 State v. Francis, supra, 148 Conn.
App. 588–89. In light of the foregoing, we agree with
the Appellate Court that ‘‘Lorenzen was not appointed
to act as the defendant’s personal counsel for the pur-
pose of determining if the defendant’s motion to correct
was frivolous, but only to serve as a neutral agent of
the court.’’ Id., 589. Accordingly, we cannot accept the
state’s argument that the error was harmless merely
in view of the fact that the defendant’s motion was
subsequently denied because that argument requires us
to decide the harmlessness question on the basis of a
motion that was prepared without the assistance of
counsel. Because the defendant may have been entitled
to the assistance of counsel in preparing the motion,
and because such assistance might have aided the
defendant in identifying a meritorious claim, we cannot
say with any degree of confidence that the denial of
counsel was harmless.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
remand the case to the trial court with direction to
appoint counsel to represent the defendant, in connec-
tion with his motion to correct an illegal sentence, in
accordance with the procedures set forth in this
opinion.
In this opinion the other justices concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eve-
leigh, McDonald, Robinson and Vertefeuille. Although Justice Palmer was
not present at oral argument, he has read the briefs and appendices, and
listened to a recording of oral argument prior to participating in this decision.
1
This court upheld the defendant’s murder conviction in State v. Francis,
228 Conn. 118, 120, 635 A.2d 762 (1993).
2
General Statutes § 51-296 (a) provides in relevant part: ‘‘In any criminal
action, in any habeas corpus proceeding arising from a criminal matter, in
any extradition proceeding, or in any delinquency matter, the court before
which the matter is pending shall, if it determines after investigation by the
public defender or his office that a defendant is indigent as defined under
this chapter, designate a public defender, assistant public defender or deputy
assistant public defender to represent such indigent defendant . . . .’’
3
In Anders, the United States Supreme Court outlined a procedure that
is constitutionally required when, on direct appeal, appointed counsel con-
cludes that an indigent defendant’s case is wholly frivolous and wishes to
withdraw from representation. See Anders v. California, supra, 386 U.S.
744. Under Anders, before appointed counsel may withdraw, he or she must
provide the court and the defendant with a brief outlining anything in the
record that may support the appeal, and the defendant must be given time
to raise any additional relevant points. Id. Thereafter, the court, having
conducted its own independent review of the entire record of the case, may
allow counsel to withdraw, if it agrees with counsel’s conclusion that the
appeal is entirely without merit. Id.4
The defendant represented himself before the Appellate Court.
5
The defendant also claimed that the trial court deprived him of his right
to appointed counsel under the due process and equal protection clauses
of the state and federal constitutions. State v. Francis, supra, 148 Conn.
App. 575. In light of its conclusion that Anders governs the right to counsel
in connection with a motion to correct, the Appellate Court did not address
those constitutional claims; see id., 576–77 n.11; and, on appeal to this court,
the defendant has not pursued them.
6
We granted the state’s petition for certification to appeal, limited to the
following issue: ‘‘Did the Appellate Court properly determine that the trial
court properly failed to follow a procedure similar to that set forth in Anders
v. California, [supra, 386 U.S. 738], in denying the defendant’s motion to
correct an illegal sentence?’’ State v. Francis, 314 Conn. 908, 100 A.3d
401 (2014).
7
See, e.g., United States v. Myers, 524 Fed. Appx. 758, 759 (2d Cir. 2013)
(no federal constitutional right to counsel in connection with motion to
reduce sentence); United States v. Ramos-Yanac, 454 Fed. Appx. 705, 706
(11th Cir. 2011) (no right to counsel because motion to reduce sentence is
not critical stage of criminal proceedings); United States v. Johnson, 580
F.3d 567, 569 (7th Cir. 2009) (no right to counsel in connection with motion
for sentence reduction); United States v. Harris, 568 F.3d 666, 668–69 (8th
Cir. 2009) (no sixth amendment right to appointed counsel in sentence
modification proceedings); Pierce v. State, 289 Ga. 893, 894, 717 S.E.2d 202(2011) (no constitutional right to counsel to pursue motion to vacate void
and illegal sentence); Grandison v. State, 425 Md. 34, 55–59, 38 A.3d 352(2012) (no constitutional right to counsel in connection with motion to
correct illegal sentence), cert. denied, U.S. , 133 S. Ct. 844, 184 L.
Ed. 2d 667 (2013); Gould v. State, 151 P.3d 261, 269 (Wyo. 2006) (motion
to correct is not critical stage of criminal proceedings), cert. denied, 552
U.S. 854, 128 S. Ct. 125, 169 L. Ed. 2d 88 (2007).
8
We are mindful that, in construing a statute, under General Statutes § 1-
2z, we may not look beyond the statutory language if that language, as
applied to the facts of the case, is plain and unambiguous and does not
yield a bizarre or unworkable result. In the present case, however, there is
no dispute that the language of § 51-296 (a) is not plain and unambiguous
with respect to the question presented and, furthermore, that the legislative
history surrounding it is silent on the issue.
9
We note that the Appellate Court, in reaching a contrary conclusion,
also relied on the fact that it ‘‘previously [had] applied the Anders procedure
to motions by appointed counsel to withdraw from other postconviction
proceedings in which their indigent clients had a statutory right to appointed
counsel under § 51-296 (a).’’ State v. Francis, supra, 148 Conn. App. 585.
Specifically, the Appellate Court noted that, in Franko v. Bronson, 19 Conn.
App. 686, 563 A.2d 1036 (1989), overruled in part on other grounds by
Vazquez v. Commissioner of Correction, 88 Conn. App. 226, 869 A.2d 234(2005), it had held that Anders governed the withdrawal of appointed counsel
in habeas appeals. State v. Francis, supra, 585–87; see Franko v. Bronson,
supra, 691–92. We are not persuaded that Franko supports the Appellate
Court’s determination, however, because the court in Franko provided no
analysis or rationale for its decision, stating simply that, ‘‘[b]ecause the
legislature has created a right to counsel in habeas corpus cases under § 51-
296 [a], and in appeals therefrom . . . the right to appeal in habeas corpus
actions should be extended the same protections as those set out in the
Anders decision.’’ Franko v. Bronson, supra, 692.
10
We note that other courts that have considered the issue of whether to
require the Anders procedure in postconviction proceedings have concluded
that it is not required to safeguard a defendant’s right to counsel in such
proceedings. See People v. Serrano, 211 Cal. App. 4th 496, 499 n.2, 503, 149
Cal. Rptr. 3d 706 (2012) (declining to require Anders-like procedure in
context of appeal from denial of motion to vacate conviction and approving
alternative procedure); see also Commonwealth v. Turner, 518 Pa. 491, 495,
544 A.2d 927 (1988) (declining to mandate Anders procedure in context of
postconviction relief proceeding); cf. Shatney v. State, 755 A.2d 130, 136
(R.I. 2000) (if it is determined that application for postconviction relief is
without merit, then there is no right to counsel in connection with such
application and any existing counsel may withdraw).
11
We emphasize that, upon appointment, counsel must fully satisfy all
applicable professional obligations to the defendant. Although appointed
counsel’s representation of the defendant ultimately may be of limited dura-
tion, it cannot be limited in any other respect because the defendant is
entitled to the effective assistance of counsel appointed under § 51-296 (a).
See, e.g., State v. Anonymous, 179 Conn. 155, 160, 425 A.2d 939 (1979)
(‘‘[when] . . . a statute . . . or [rule of practice] . . . mandates the assis-
tance of counsel, it is implicit that this means competent counsel’’).
12
Of course, if the court is not completely satisfied with the reasons for
counsel’s conclusion, it may direct counsel to provide additional substantia-
tion for his opinion or deny counsel’s request to withdraw.
13
Our review of the record also suggests that Lorenzen’s conclusion
regarding the merits of the defendant’s motion was based on the erroneous
assumption that, because the defendant’s motion was his third motion to
correct an illegal sentence, it was barred by the doctrine of res judicata. At
the hearing, Lorenzen stated that his concerns with regard to the motion
were based ‘‘not so much on legal merit but potentially on procedural
grounds.’’ He then went on to state that the problem with the defendant’s
claim ‘‘is more whether or not it’s been previously addressed.’’ The record
also establishes that Lorenzen conveyed these concerns as the reason for
his ultimate conclusion that the motion should not proceed. In its memoran-
dum of decision addressing the merits of the defendant’s motion, however,
the trial court concluded that the doctrine of res judicata did not apply to
the defendant’s motion and that he was not, therefore, precluded from
advancing his claims. Accordingly, the trial court’s determination raises
serious doubts with respect to Lorenzen’s conclusion regarding the merits
of the defendant’s motion to correct.