State v. Francis , 148 Conn. App. 565 ( 2014 )

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STATE OF CONNECTICUT v. ERNEST FRANCIS
(AC 34701)
Sheldon, Keller and West, Js.
Argued September 26, 2013—officially released March 11, 2014
(Appeal from Superior Court, judicial district of
Hartford, Miano, J. [criminal judgment]; Gold, J. [motion
to correct].)
Ernest Francis, self-represented, the appellant
(defendant).
Margaret Gaffney Radionovas, senior assistant
state’s attorney, with whom, on the brief, were Gail P.
Hardy, state’s attorney, and Edward R. Narus, senior
assistant state’s attorney, for the appellee (state).
Opinion
SHELDON, J. The defendant, Ernest Francis, appeals
from the denial of his third postconviction motion to
correct illegal sentence under Practice Book § 43-221
following his 1992 conviction and sentencing to fifty
years in prison on the charge of murder.2 On appeal,
the defendant claims initially that the court, Gold, J.,
erred in denying his motion to correct by rejecting his
substantive claims that the sentencing court, Miano,
J., imposed the challenged sentence upon him in an
illegal manner by: (1) relying upon an inaccurate under-
standing of the manner in which he committed the
underlying crime;3 (2) drawing and relying upon unfair
inferences about his character and escalating criminal
career prior to the crime based upon inaccurate infor-
mation about his criminal history;4 and (3) making
incorrect assumptions about his mental state at the time
of the crime.5 The defendant also claims that the court
erred procedurally in adjudicating his motion to correct
by denying his accompanying request for the appoint-
ment of counsel to represent him on the motion based
upon the unexplicated conclusion of a reviewing public
defender that the motion lacked sufficient merit to war-
rant making the requested appointment. The defendant
argues that the court’s challenged ruling on his request
for appointed counsel violated his rights, as an indigent
defendant, under both General Statutes § 51-296 (a),6
as interpreted and applied in State v. Casiano, 282
Conn. 614, 627, 922 A.2d 1065 (2007) (holding that indi-
gent criminal defendant has statutory right to appointed
counsel on motion to correct under § 51-296 [a]), and
the due process and equal protection clauses of our
state and federal constitutions.7 The defendant argues,
more particularly, that the court’s ruling violated his
right to appointed counsel because it was made under
procedures that failed to comply with the minimum
constitutional requirements for ruling on motions by
appointed counsel to withdraw from criminal appeals
on the ground of frivolousness, as articulated by the
United States Supreme Court in Anders v. California,
386 U.S. 738, 744, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967),
and long enforced in this state in all postconviction
proceedings in which indigent defendants have the stat-
utory or constitutional right to appointed counsel.
We agree with the defendant that the court’s denial
of his request for appointed counsel on his motion to
correct was improperly made under procedures that
failed to comply with the requirements of Anders, which
we find to be enforceable as part of his right to
appointed counsel under § 51-296 (a). We thus conclude
that the court’s judgment denying the motion to correct
must be reversed, and this case must be remanded
for further proceedings on the defendant’s motion to
correct consistent with this opinion.
I
The following procedural history is relevant to our
resolution of this appeal. The defendant, representing
himself, filed the present motion to correct on July 12,
2010, and later amended it on October 12, 2010. On
September 8, 2010, the date on which the motion was
initially scheduled for a hearing, the court, Gold, J.,
opened the hearing by engaging in the following collo-
quy with the defendant and public defender, R. Bruce
Lorenzen:
‘‘The Court: Let’s do Francis. This is Mr. Francis’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 a case called State v. Casiano,
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 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 represent yourself?
‘‘The Defendant: I was assuming that had happened
when I first came in on State v. 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]: Hi, Mr. Francis.
‘‘The Defendant: How you doing?
‘‘[Attorney Lorenzen]: Bruce Lorenzen, Public
Defender’s Office. The clerk had alerted us to Mr. Fran-
cis’s claim. I have reviewed it. May I have just a moment?
‘‘(Attorney Lorenzen speaking with the defendant.)
‘‘[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?
‘‘[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
Mr. Francis’s position and I’ve told him, there’s an emo-
tional 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 petition, 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. He said yes. Are you reporting
then to the Court 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,
Mr. Francis, 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 Lorenzen’s failure to specify the
grounds upon which he had concluded that the motion
to correct lacked sufficient merit to warrant appointing
counsel thereon:
‘‘The Defendant: I understand the dictates of State
v. Casiano. However, I think that State v. Casiano,
everyone is overlooking Andrews v. California8 as well
as Fredericks v. Douglas,9 which is a Connecticut case
on when a lawyer feels that a case has no merit. Mr.
Lorenzen comes in and he doesn’t have anything on
paper to point—to point-for-point issues that can, that
I may be able to raise alternatively if he feels it has no
merit. I think United States Supreme Court has already
spoken in Andrews that whenever a lawyer seeks to
withdraw or seeks to say that there’s no merit to a
claim, the Sixth Amendment have a right to have him file
an Andrew’s 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 Court feels that he doesn’t have to file an Andrew’s
brief that’s an issue I’ll take up on appeal.
‘‘The Court: Yes. The Court’s order is that Mr. Loren-
zen 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 Loren-
zen state the specific grounds upon which he had relied
in concluding that his motion to correct had no merit.
This request was denied by the court in the following
further 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 the public defender’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 the public
defender to assume that responsibility. The public
defender has assessed it and it is his considered opinion,
Mr. Lorenzen’s, that this case perhaps considering the
prior court’s rulings by Judge Clifford and Judge
Espinosa which deny previous petitions. I’m going to
accept what Mr. Lorenzen 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: Mr. 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 Mr. Lorenzen
said at all. He mentioned prior proceedings but he has
assessed the merit of the claim that’s now before this
Court and has determined there’s an insufficient likeli-
hood 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 on his
motion to correct at a hearing held on February 18,
2011. The court, Gold, J., denied that motion on the
merits in a memorandum of decision issued on June 7,
2011.10 This appeal followed.
II
We begin our discussion of the defendant’s right to
counsel claim by addressing our ability to hear this
claim on appeal. The state argues that the defendant’s
appeal is improper because the only proper vehicle for
challenging a trial court’s order denying a request for
the appointment of counsel is a motion for review under
Practice Book § 63-7, which provides, in part, that ‘‘[t]he
sole remedy of any defendant desiring the court to
review an order concerning . . . the appointment of
counsel shall be by motion for review. . . .’’ We reject
that argument, under the authority of State v. Scott, 139
Conn. App. 333, 340 n.6, 55 A.3d 608 (2012), wherein
this court held that Practice Book § 63-7 applies only
to the appointment of appellate counsel, not to the
appointment of trial counsel. Here, then, as in Scott,
the defendant’s ‘‘challenge [to] the trial court’s denial
of his Casiano request . . . is properly before this
court on appeal.’’ Id.
III
Having determined that we may properly hear the
defendant’s right to counsel claim on appeal, we now
turn to the merits of that claim. The defendant contends,
to reiterate, that the court violated his right to appointed
counsel on his motion to correct, under both § 51-296
(a) and the due process and equal protection clauses
of the state and federal constitutions, by denying his
request for counsel based solely upon the unexplicated
conclusion of the public defender who reviewed the
motion that it lacked sufficient merit to warrant making
the requested appointment. That ruling, the defendant
claims, violated his statutory and constitutional right
to counsel on the motion because it was made under
procedures which failed to comply with the minimum
constitutional requirements established by the United
States Supreme Court in Anders for determining if
appointed counsel for an indigent criminal defendant
on appeal should be permitted to withdraw from the
appeal on the ground that his client’s claims are frivo-
lous. In Anders, the Supreme Court held that: ‘‘[I]f coun-
sel finds his [client’s] case to be wholly frivolous, after
a conscientious examination of it, he should so advise
the court and request permission to withdraw. That
request must, however, be accompanied by a brief refer-
ring to anything in the record that might arguably sup-
port the appeal. . . . [I]f [the court] finds any of the
legal points arguable on their merits (and therefore not
frivolous) it must, prior to decision, afford the indigent
the assistance of counsel to argue the appeal.’’ Anders
v. California, supra, 386 U.S. 744. Claiming that the
Anders requirements apply with equal force to an indi-
gent criminal defendant’s right to appointed counsel on
a motion to correct as on appeal, the defendant argues
that the procedure by which the court adjudicated his
request for appointed counsel in this case violated those
requirements in several ways.
First, he claims that the court erred by failing to
appoint counsel to represent him personally in connec-
tion with his request for counsel on the motion, and to
serve as his own legal representative and counselor for
that purpose, rather than as an amicus curiae or a neu-
tral agent of the court. Second, he claims that the court
erred by failing to require the public defender, who was
asked to evaluate the possible merits of his motion, to
base his evaluation upon a conscientious review of the
trial court record, examined in light of controlling legal
authorities, and then to share the results of that evalua-
tion with both him and the court, in the form of a brief
identifying all possible grounds upon which to support
his claims on the motion. Third, he claims that the court
erred by denying his request for appointed counsel on
the motion based upon the public defender’s evaluation
of its potential merits without making its own review of
the record and independent evaluation of the motion’s
potential merits before personally concluding that the
motion was wholly frivolous.
Turning first, as we must, to the defendant’s statutory
argument that the procedure by which the court ruled
on his request for appointed counsel violated his rights
under § 51-296 (a),11 we note initially that this aspect
of his right to counsel claim is governed by Casiano
and other controlling cases from this court and our
Supreme Court that have interpreted and applied that
statute. Those authorities, he correctly argues, have
clearly established that, following the determination of
a defendant’s indigency, such an indigent defendant’s
statutory right to appointed counsel ‘‘in any criminal
action’’ under § 51-296 (a) applies both to all proceed-
ings before the trial court in a Connecticut criminal
case and to all postconviction proceedings in which
the defendant challenges the legality of his resulting
criminal conviction or sentence.
As for postconviction challenges to criminal convic-
tions or sentences, our Supreme Court held, in Gipson
v. Commissioner of Correction, 257 Conn. 632, 638,
778 A.2d 121 (2001), that § 51-296 (a) affords indigent
criminal defendants the right to appointed counsel in all
appeals from their convictions or sentences, including
both direct appeals from such convictions or sentences,
and discretionary appeals to the Supreme Court, on
petitions for certification, from this court’s rulings on
direct appeal. Gipson thus extended the indigent defen-
dant’s statutory right to appointed counsel under § 51-
296 (a) to appeals in which there is no corresponding
constitutional right to appointed counsel. Compare
Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 357–
58, 9 L. Ed. 2d 811 (1963) (holding that state court’s
failure to appoint counsel for indigent criminal defen-
dant on his first appeal as of right from criminal convic-
tion or sentence violates his rights under equal
protection clause of fourteenth amendment to United
States Constitution), with Ross v. Moffitt, 417 U.S. 600,
612, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974) (refusing
to extend equal protection right of indigent criminal
defendant to appointed counsel from his first appeal
as of right from his criminal conviction or sentence
to preparation of petition for discretionary appellate
review after rejection of his first appeal).
More recently, moreover, in State v. Casiano, supra,282 Conn. 626, our Supreme Court ruled that § 51-296
(a) extends the indigent criminal defendant’s statutory
right to appointed counsel on appeal to postconviction
motions to correct, because a motion to correct is a well
established,12 and sometimes preferable,13 alternative
to an appeal for challenging the legality of a criminal
sentence. Due to the functional equivalency between
motions to correct and criminal appeals as vehicles
for challenging the legality of criminal sentences as a
matter of right, the court in Casiano held that an indi-
gent defendant is no less entitled to the assistance of
appointed counsel on a motion to correct than on a
criminal appeal.14 Id., 627; Sinchak v. Commissioner of
Correction, 126 Conn. App. 684, 690, 14 A.3d 343 (2011)
(‘‘[Casiano] reasoned that a motion to correct an illegal
sentence is an alternate route equivalent to an appeal
of an illegal sentence and, because § 51-296 [a] provides
counsel for such an appeal, the statutory right to coun-
sel logically extends to the equivalent motion.’’).15 This
ruling, like our Supreme Court’s earlier ruling in Gipson,
was limited to the statutory claim raised on appeal, in
that the court expressly declined to reach the defen-
dant’s parallel constitutional claims.
Consistent with its conclusion that an indigent crimi-
nal defendant has the same statutory right to appointed
counsel under § 51-296 (a) on a motion to correct as
on appeal, the court in Casiano made it clear that that
right, like the right to appointed counsel on appeal, is
not unlimited, in the sense that it does not afford the
defendant the right to appointed counsel for the prose-
cution of frivolous claims. State v. Casiano, supra, 282
Conn. 627–28. Although no mention of the frivolous
claims exception to the right to appointed counsel
appears in the text of § 51-296 (a), that exception has
long been enforced in this state as to the right of indigent
defendants to appointed counsel on appeal under the
previously described procedures prescribed by the
United States Supreme Court in Anders v. California,
supra, 386 U.S. 744. See, e.g., State v. Pascucci, 161
Conn. 382, 386–87, 288 A.2d 408 (1971).
Although the United States Supreme Court later clari-
fied, in Smith v. Robbins, 528 U.S. 259, 265, 120 S. Ct.
746, 145 L. Ed. 2d 756 (2000), that Anders established
only general guidelines for enforcing the frivolous
claims exception to the indigent criminal defendant’s
constitutional right to appointed counsel on appeal,
from which a state could freely deviate if the alternative
procedures it adopted to enforce that right met mini-
mum constitutional standards, neither our legislature
nor our judiciary has ever adopted any such alternative
procedures for ruling on requests by appointed counsel
to withdraw from criminal appeals on the ground of
frivolousness.16 Hence, the Anders procedure remains,
to this day, the applicable procedure for adjudicating
motions by appointed counsel to withdraw from Con-
necticut criminal appeals on the ground of frivo-
lousness.
The Anders procedure, as enforced in this state,17 has
been held to afford an indigent defendant on appeal
each of the rights that the defendant claims to have
been violated by the court in this case, including: (1)
the right to personal representation by appointed coun-
sel, as his own counselor and legal representative rather
than as a neutral officer of the court;18 (2) the right to
have appointed counsel, who seeks to withdraw from
the case on the ground of frivolousness, base his evalua-
tion of the merits of the defendant’s claims upon a
conscientious review of the record, examined in the
light of controlling legal authorities, and to inform the
defendant and the court of the results of that evaluation
in a brief listing all possible grounds for supporting the
defendant’s claims;19 and (3) the right to have the court
make its own evaluation of the merits of his claims and
to conclude independently that such claims have no
merit before granting counsel’s motion to withdraw.20
Against this background, having expressly equated
the right to appointed counsel on a motion to correct
to the right to appointed counsel on appeal, the court
in Casiano described the procedure to be followed
in ruling on an indigent defendant’s request for the
appointment of counsel on a motion to correct: ‘‘[A]
defendant has a right to the appointment of counsel for
the purpose of determining whether a defendant who
wishes to file such a motion has a sound basis for doing
so. If appointed counsel determines that such a basis
exists, the defendant also has the right to the assistance
of such counsel for the purpose of preparing and filing
such a motion and, thereafter, for the purpose of any
direct appeal from the denial of that motion.’’ State v.
Casiano, supra, 282 Conn. 627–28.
Although the foregoing holding clarifies certain
aspects of the procedure by which a trial court must
enforce an indigent defendant’s right to appointed coun-
sel on a motion to correct, it fails to address, or thus
to shed light on, other important aspects of that proce-
dure. To begin with, the ruling clarifies that when an
indigent defendant first makes a request for appointed
counsel on a motion to correct, the court must grant
the request as a threshold matter so that counsel can
assist the defendant in connection with his request for
representation itself. That, of course, is the implication
of the court’s statement in its ruling that, ‘‘[i]f appointed
counsel determines that such [a sound] basis exists [for
the filing of a motion to correct], the defendant also
has the right to the assistance of such counsel for the
purpose of preparing and filing such a motion.’’ (Empha-
sis added.) Id. The ruling also clarifies that appointed
counsel’s first obligation to the defendant in the course
of rendering such assistance to him is to determine
whether there exists a sound basis for filing or further
prosecuting his motion to correct. This obligation nec-
essarily requires counsel to exercise diligence on behalf
of his client by exploring all potentially viable factual
and legal bases for his motion to correct, then sharing
the results of his labors with his client, to whom he
also owes a duty of loyalty. Finally the ruling clarifies
that if appointed counsel determines that there is a
sound basis for any of his client’s claims, he must con-
tinue to assist his client by representing him on his
motion, both in the trial court and, if necessary, on
direct appeal from its denial.
In each of these ways, the procedure prescribed by
the court in Casiano for enforcing the frivolous claims
exception to the indigent defendant’s right to appointed
counsel on a motion to correct is consistent with the
procedure prescribed by Anders for enforcing that
exception as to the right to appointed counsel on appeal
when ruling on a motion by appointed counsel to with-
draw from an appeal on the ground of frivolousness.
Both procedures contemplate that counsel will be
appointed to represent the defendant in connection
with his request for appointed counsel before any deter-
mination of frivolousness is made and that, if counsel
determines that there is a sound basis for any of his
client’s claims, he will continue to represent his client
on the merits of those claims without further action by
the court.
What the Casiano decision does not address or
answer, however, are the following questions that are
squarely raised in this case. First, what minimum steps
must appointed counsel take to evaluate the potential
merits of his client’s claims before concluding that there
is no sound basis for any of those claims? Second, if
appointed counsel concludes that there is no sound
basis for any of his client’s claims, what steps must he
take to advise his client and the court of that conclu-
sion? Third, when the court is apprised of appointed
counsel’s conclusion that there is no sound basis for
any of his client’s claims, what steps, if any, must the
court itself take to validate that conclusion before
enforcing the frivolous claims exception against him by
terminating his counsel’s appointment on the motion?
The state contends that Casiano does not answer
these questions because the limited procedures set
forth therein are all that are statutorily required of
appointed counsel before the court rules on the request
of an indigent defendant for appointed counsel on a
motion to correct. It thus claims that a reviewing public
defender’s only task is to review the defendant’s motion
to correct, to decide on that basis if any of the claims
made in it have a sound basis, and to report his bottom-
line conclusion to the court, without necessarily
explaining the basis for that conclusion or the steps he
took in reaching it. In the state’s view, the final decision
as to whether the defendant’s request for appointed
counsel should be granted has been left entirely to the
reviewing public defender, whose determination of the
matter is final and unreviewable, either in the trial court
or on appeal.
The defendant disagrees with the state’s argument
on this issue, claiming that, because the express ratio-
nale in Casiano for extending the statutory right to
counsel ‘‘in any criminal action’’ from appeals to
motions to correct is that such motions are functionally
equivalent to appeals as vehicles for challenging the
legality of criminal sentences, his right to appointed
counsel on a motion to correct must be identical to, and
thus be protected by, the same procedural safeguards as
used to protect his right to appointed counsel on appeal.
The defendant thus claims that the answers to the fore-
going questions must be supplied by Anders and its
progeny, which govern motions by appointed counsel
for indigent defendants to withdraw from Connecticut
criminal appeals on the ground of frivolousness. The
defendant thus concludes that the court erred by ruling
on his request for appointed counsel in this case without
complying fully with the Anders requirements. For the
following reasons, we agree with the defendant.
There are two principal reasons why we agree with
the defendant that the Anders requirements are enforce-
able as to an indigent defendant’s statutory right to
appointed counsel on a motion to correct. First, the
logic of the defendant’s basic argument on that issue
is compelling, because, as he rightly argues, the court
in Casiano expressly equated the importance of a
motion to correct to that of a criminal appeal for the
purpose of challenging the legality of a criminal sen-
tence, and thus extended the same right to appointed
counsel to the former as to the latter. That logic, by
extension, compels the conclusion that the same proce-
dures that have long been used to protect the right
to appointed counsel on appeal, including the Anders
procedure for enforcing the frivolous claims exception
to that right, must be used to protect the equivalent
right to appointed counsel on a motion to correct.
Second, although neither this court nor our Supreme
Court has ever decided this precise issue with respect
to the statutory right to appointed counsel on a motion
to correct, this court has previously 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 coun-
sel under § 51-296 (a). In Franko v. Bronson, 19 Conn.
App. 686, 563 A.2d 1036 (1989) (en banc), this court
had before it two motions to review orders by trial
courts denying motions by appointed counsel to with-
draw from appeals in postconviction habeas corpus
proceedings on the ground of frivolousness. Each coun-
sel had filed an Anders brief in support of his motion
to withdraw. In deciding to reach the merits of the two
motions despite the lateness of their filing, the court
in Franko explained, and then analyzed, the issues
before it as follows: ‘‘Each motion essentially seeks
our review of the presiding judge’s denial of appellate
counsel’s motion to withdraw. Before we address the
merits of these motions, we must decide whether the
procedure set out in Anders . . . and codified in Prac-
tice Book §§ 952 through 956 . . . applies in the con-
text of appeals from habeas corpus judgments.
‘‘Although Anders was a habeas corpus action, the
opinion in that case focuses only upon the extent of
the duty of court-appointed appellate counsel to prose-
cute a first appeal from a criminal conviction, after that
attorney has conscientiously determined that there is
no merit to the indigent’s appeal. . . . Practice Book
§§ 952 through 956 implement the Anders principle.21
The Anders decision is based upon constitutional
requirements guaranteed by the sixth amendment in
criminal cases. There is, however, no equivalent consti-
tutional right to counsel in habeas corpus cases. . . .
‘‘Although the Anders procedure is not, therefore,
constitutionally required in habeas corpus appeals, we
look beyond this constitutional limitation to the exis-
tence of General Statutes § 51-296, which creates a stat-
utory right to counsel in certain habeas corpus actions.
That section mandates that counsel be appointed for
an indigent defendant [i]n any criminal action, in any
habeas court proceeding arising from a criminal mat-
ter, in any extradition proceeding, or in any delinquency
matter . . . . We conclude, moreover, that General
Statutes § 51-296 applies as well to appeals from such
habeas corpus proceedings, because no such appeal
may be taken unless an appropriate judicial authority
has certified pursuant to General Statutes § 52-470 (b)
that a question is involved in the decision which ought
to be reviewed by the court having jurisdiction . . . .
‘‘Because the legislature has created a right to counsel
in habeas corpus cases under § 51-296, and in appeals
therefrom, we conclude that the right to appeal in
habeas corpus actions should be extended the same
protections as those set out in the Anders decision. We,
therefore, follow the procedure set out in Practice Book
§ 4035 and §§ 952 through 95622 . . . by referring
motions to withdraw based on Anders briefs to the
presiding judge of the trial court in those habeas corpus
matters specified in General Statutes § 51-296.’’ (Cita-
tions omitted; emphasis in original; footnotes added;
internal quotation marks omitted.) Id., 691–92.
The upshot of the Franko decision is that the frivo-
lous claims exception to the indigent defendant’s statu-
tory right to appointed counsel under § 51-296 (a) is
enforceable under the Anders procedures in all pro-
ceedings to which that right has been extended,
whether or not the defendant has a corresponding con-
stitutional right to counsel in any such proceeding. The
Anders procedures must therefore be complied with
by trial courts whenever they have occasion to enforce
the frivolous claims exception to an indigent defen-
dant’s statutory right to appointed counsel on a motion
to correct.23
In the present case, none of the constitutional require-
ments set forth by the United States Supreme Court in
Anders were satisfied by the manner in which the trial
court adjudicated the defendant’s request for appointed
counsel on his motion to correct. First, the court did
not appoint Lorenzen to represent the defendant in the
prosecution of his motion to correct. Instead, Lorenzen
was advised of the defendant’s motion by the clerk’s
office 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 sub-
stance of any discussions with the defendant about the
claims he wished to make in his motion. Lorenzen never
elaborated further about his review of the defendant’s
claims, and the court expressly refused to order that
he do so. Lorenzen did not, at any time after making
his determination that the defendant’s claim lacked suf-
ficient merit to justify appointment, explain his findings
to the defendant, as any attorney, appointed or privately
retained, must do, at a bare minimum, out of courtesy,
professional loyalty, and respect for his own client.
Rather, the record reflects that Lorenzen was not
appointed to act as the defendant’s personal counsel
for the purpose of determining if the defendant’s motion
to correct was frivolous, but only to serve as a neutral
agent of the court.
The record also does not establish that Lorenzen
conducted either a diligent review of all relevant parts
of the record or an examination of relevant case law
concerning the defendant’s claims before concluding
that those claims lacked sufficient merit to warrant
granting the defendant’s request for appointed counsel.
In the end, moreover, Lorenzen’s conclusory statements
that the motion did ‘‘not have sufficient merit to justify
appointment’’ and that ‘‘[i]t’s my considered opinion
that it does not have merit,’’ were insufficient to satisfy
the minimum requirements of Anders.
Finally, only one tier of review was performed as to
the potential merits of the defendant’s motion to cor-
rect, by a public defender who was not appointed to
represent the defendant’s personal interests, before the
court denied his request for appointed counsel on the
motion. Indeed, as soon as Lorenzen announced his
conclusion, in open court, that the motion had insuffi-
cient merit to warrant granting the defendant’s request
for the appointment of counsel, the court simply
adopted that conclusion as its own, declaring: ‘‘All right.
Well, then, thank you. Then, Mr. Francis, 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.’’ Moments later,
when the defendant challenged the unexplained basis
for Lorenzen’s conclusion, the court simply endorsed
that conclusion because Lorenzen had reached it, stat-
ing that, ‘‘Mr. Lorenzen has satisfied his responsibilities
by having reviewed your third motion and having repre-
sented to me that he does not feel the appointment
of a public defender or a special public defender is
warranted in this case.’’ The court thus denied the
defendant’s request for counsel on his motion to correct
without ever conducting its own review of the record
or of the relevant legal authorities potentially support-
ing the motion, much less independently concluding
that the motion was wholly without merit. In so doing,
the court failed to comply with the requirements of
Anders, and thus violated the defendant’s right to
appointed counsel on his motion to correct under § 51-
296 (a).
The court’s failure to appoint Lorenzen to represent
the defendant’s interests 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,
Lorenzen’s failure to explain his findings to either the
defendant or the court beyond a mere conclusory state-
ment, 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 defendant’s claims
were wholly frivolous, violated the minimum require-
ments of Anders, and the defendant’s right to appointed
counsel on his motion under § 51-296 (a). Accordingly,
we remand this case for further proceedings consistent
with this opinion on the defendant’s motion to correct
and his accompanying request for appointment of coun-
sel in connection therewith.24
The judgment is reversed and the case is remanded
for a new hearing on the motion for appointment of
counsel and on the motion to correct in accordance
with this opinion.
In this opinion the other judges concurred.
1
Practice Book § 43-22 provides: ‘‘The 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 or any other disposition made in an
illegal manner.’’
2
The defendant’s conviction was affirmed on direct appeal. State v. Fran-
cis, 228 Conn. 118, 635 A.2d 762 (1993). Following that appeal, ‘‘[t]he defen-
dant 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 informa-
tion solely within the record. The trial court, Clifford, J., 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 by the trial court,
Espinosa, J., in a memorandum of decision dated 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 judgment of the trial court in a per
curiam decision.’’ (Citation omitted; internal quotation marks omitted.)
3
The defendant claims that the sentencing court made inaccurate findings
about the number of stab wounds inflicted upon the victim in the course
of the murder. The court found that the defendant delivered two blows to
the victim, while the defendant claims that the evidence established that
only one blow was delivered to the victim.
4
The defendant argues that the sentencing court relied upon an inaccurate
assessment of his criminal history, finding as follows: ‘‘Here is a young man
that at age sixteen was convicted of possession of narcotics; at age seventeen
was convicted of conspiracy to sell cocaine; at age seventeen, assault in
the third degree; and now murder, and he’s only nineteen years old. Three
felony convictions at age nineteen. On probation at the time of the instant
offense. . . . He is that portion of a small segment of our criminal popula-
tion which commits a disproportionately large number of crimes. At age
nineteen, this gentleman is a repeat felony offender. And again, the fact that
he was on probation . . . with four years over his head didn’t dissuade or
deter him or break his stride for a moment.’’
The defendant claims that the criminal history relied upon by the sentenc-
ing court was inaccurate because he had not been convicted of conspiracy
to sell narcotics, but rather was convicted only of conspiracy to possess
narcotics. Further, he claims that the probation violation upon which the
court relied was inaccurate because the requirements under General Statutes
§ 53a-60b of the crime of assault in the third degree of a victim over age
sixty, for which he was on probation, were not established because the
victim was only sixteen years old. He claims that the sentencing court should
not have relied on the fact that he was on probation at the time of the crime
before first correcting the term of his probation under the correct statute,
specifically, General Statutes § 53a-61.
5
The defendant claims that the sentencing court failed to afford him the
opportunity to present evidence of his mental state at the time of the murder,
which he claims would have placed the attack between the victim and the
defendant that occurred in prison prior to the murder in a clearer context.
The defendant claims that the attack led him to develop post-traumatic
stress disorder, which caused him to have an extreme emotional reaction
to this event at the time of the murder.
6
General Statutes § 51-296 (a) provides in relevant part: ‘‘In any criminal
action . . . the court before which the matter is pending shall, if it deter-
mines after investigation by the public defender or his office that a defendant
is indigent as defined under this chapter, designate a public defender, assis-
tant public defender or deputy assistant public defender to represent such
indigent defendant . . . .’’
7
U.S. Const., amend. XIV; Conn. Const., art. I, §§ 8, 20.
8
Consistent with the representations of the defendant on appeal, we treat
his references to ‘‘Andrews’’ as referring to Anders v. California, supra,
386 U.S. 738.
9
From the context of the defendant’s comments, it appears as if he con-
flated the names of two cases. We believe he was referring to Fredericks
v. Reincke, 152 Conn. 501, 208 A.2d 756 (1965), in which our Supreme Court
followed the dictates of the United States Supreme Court’s decision in
Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963).
10
In its memorandum of decision, the court held, despite the state’s argu-
ment to the contrary, that ‘‘it is inappropriate to invoke the doctrine of res
judicata to preclude the defendant from advancing these claims now.’’
11
See State v. Casiano, supra, 282 Conn. 616 n.3 (‘‘The defendant also
claims that he has a right under the federal and state constitutions to the
assistance of counsel in connection with his appeal from the denial of his
motion to correct an illegal sentence. Because we conclude that the defen-
dant is entitled to the appointment of counsel under § 51-296 [a], we do not
reach the defendant’s constitutional claim. See, e.g., State v. Smith, 280 Conn.
285, 295 n.6, 907 A.2d 73 [2006] [this court generally eschews unnecessary
determinations of constitutional issues].’’).
12
‘‘[A] defendant may challenge his or her criminal sentence on the ground
that it is illegal by raising the issue on direct appeal or by filing a motion
pursuant to [Practice Book] § 43-22 with the judicial authority, namely, the
trial court.’’ (Internal quotation marks omitted.) State v. Tabone, 279 Conn.
527, 534, 902 A.2d 1058 (2006).
13
‘‘[I]t is to a defendant’s advantage to move in the trial court, pursuant
to [Practice Book § 43-22] to correct a purportedly illegal sentence after the
sentence is imposed. This method would ordinarily yield a more prompt
consideration of [a] defendant’s challenge to the sentence than would the
filing of a petition for habeas corpus, which usually entails considerably
more delay than does a motion pursuant to [§ 43-22]. . . . We therefore
conclude that, in order to challenge an illegal sentence, a defendant either
must appeal the sentence directly or file a motion to correct the sentence
pursuant to § 43-22 with the trial court . . . .’’ (Citations omitted; internal
quotation marks omitted.) Cobham v. Commissioner of Correction, 258
Conn. 30, 38–39, 779 A.2d 80 (2001).
14
Section 51-296 (a) broadly applies to ‘‘any criminal action,’’ a term that
is not defined by the statute, but that has been clarified by this court to
‘‘[include] all appeals, including petitions for certification, and not just first
appeals as of right.’’ Sinchak v. Commissioner of Correction, supra, 126
Conn. App. 689. The court in Casiano held that ‘‘a motion to correct an
illegal sentence falls within the purview of ‘any criminal action’ for purposes
of § 51-296 (a).’’ State v. Casiano, supra, 282 Conn. 625.
15
This court, relying on Casiano, also analogized an indigent defendant’s
right to counsel for the preparation and filing of an initial habeas corpus
proceeding to the filing of a habeas on a habeas. Sinchak v. Commissioner
of Correction, supra, 126 Conn. App. 690 (‘‘[A] habeas on a habeas is equiva-
lent to an initial ineffective assistance habeas because both require the same
proof and offer the same remedy. . . . By logical extension, then, § 51-296
(a), which applies to an initial ineffective assistance habeas, applies equally
to a habeas on a habeas.’’ [Citation omitted.]).
16
See Lorthe v. Commissioner of Correction, 103 Conn. App. 662, 676,
931 A.2d 348 (holding that ‘‘Anders and Pascucci stand for the proposition
that when a motion to withdraw as counsel is filed asserting that there are
no nonfrivolous issues on appeal, the court is required to review the entire
record before it, including the pleadings and evidence’’), cert. denied, 284
Conn. 939, 937 A.2d 696 (2007); Vazquez v. Commissioner of Correction,
88 Conn. App. 226, 228 n.2, 869 A.2d 234 (2005) (stating that Anders has
‘‘establish[ed] constitutionally required procedures to be followed by coun-
sel and courts in cases in which counsel believes that appeal is frivolous’’);
see also Practice Book §§ 44-33 through 44-37 (establishing procedure in
Superior Court criminal matters, in accordance with Anders, for appoint-
ment of initial counsel for appeals by indigent defendants, counsel’s request
to withdraw from such appointment, submission by counsel of brief in
support of such request to withdraw, and findings to be made by court prior
to granting or denying counsel’s request to withdraw).
17
Our Supreme Court, following the Anders decision, held that ‘‘the record
should fully disclose that there has been full compliance with the federal
requirements specified in Anders . . . and that the judicial determination
required by that decision has been made.’’ State v. Pascucci, supra, 161
Conn. 387. The Anders procedure has been described by this court as follows:
‘‘[I]f appointed counsel . . . believes that there are no nonfrivolous issues
and seeks to withdraw by filing an Anders brief, the motion, brief and
transcript, if any, of the pertinent proceedings shall be filed with the appellate
clerk . . . . [The court] shall examine fully the briefs of counsel and shall
review the transcript if any is filed. If, after such examination, the court
concludes that the appeal is wholly frivolous, the court may grant counsel’s
motion for leave to withdraw appearance and refuse to appoint new counsel.
Before refusing to appoint new counsel, the court shall make a finding that
the appeal is wholly frivolous and shall file a memorandum setting forth
the basis for this finding . . . . If after a full examination the court con-
cludes . . . that the appeal is not wholly frivolous, it may allow counsel to
withdraw and appoint new counsel to represent the petitioner, or it may
deny the motion for leave to withdraw appearance and order counsel of
record to proceed with the appeal.’’ (Citations omitted.) Vazquez v. Commis-
sioner of Correction, supra, 88 Conn. App. 234.
18
See State v. Pascucci, supra, 161 Conn. 386 (holding that appointed
counsel must serve ‘‘as an active and conscientious advocate to the full
extent of his professional responsibility and obligation’’).
19
See State v. Pascucci, supra, 161 Conn. 386 (explaining that ‘‘the brief
or report required from counsel’’ should contain ‘‘ready references not only
to the record, but also to . . . legal authorities . . .’’ [internal quotation
marks omitted]). The purpose of the Anders brief is for counsel to provide
the defendant with specific references ‘‘to anything in the record that might
arguably support the appeal.’’ Anders v. California, supra, 386 U.S. 744.
The purpose of the brief is not for counsel to articulate to the court arguments
in support of counsel’s motion to withdraw from representation. Thus, there
is no conflict of interest for counsel to provide the defendant with a brief
referencing those salient arguments while at the same time moving the court
to withdraw from representation on the ground that the defendant’s claims
are frivolous. The determination of frivolousness is ultimately the court’s
determination, after conducting its own independent review of the record
in light of controlling law and the brief supplied by counsel.
20
See State v. Pascucci, supra, 161 Conn. 386–87 (‘‘[T]he Anders case
. . . specifies that the court—not counsel . . . after a full examination of
all the proceedings . . . decide[s] whether the case is wholly frivolous.
. . . [I]t would be highly desirable for the trial court to make certain that
the record disclose that the procedures specified in the Anders case have
been strictly followed and, while it is unnecessary for the court to state its
reasons for a decision that an appeal is wholly frivolous, a memorandum
of decision explaining the basis of the decision of the court would obviously
be especially desirable.’’ [Citations omitted; internal quotation marks
omitted.]).
21
See Practice Book §§ 44-33 through 44-37 and footnote 16 of this opinion.
22
See Practice Book §§ 44-33 through 44-37 and footnote 16 of this opinion.
23
This conclusion is not affected by our Supreme Court’s recognition,
subsequent to Franko, of a habeas petitioner’s right to appeal from the
dismissal of his habeas petition even if the habeas court denies his petition
for certification to appeal. See Simms v. Warden, 229 Conn. 178, 181–82,
640 A.2d 601 (1994); Simms v. Warden, 230 Conn. 608, 609, 646 A.2d 126(1994). As this court explained in Vasquez v. Commissioner, supra, 88
Conn. App. 234, the Simms decisions affected only the procedure by which
counsel’s motion to withdraw from a habeas appeal on the ground of frivo-
lousness must be routed to and decided by the habeas court instead of the
presiding judge, not the obligations of habeas counsel or habeas courts to
comply fully with Anders whenever they, respectively, seek to withdraw
from habeas appeals on the ground of frivolousness or adjudicate such
motions to withdraw. The court in Vasquez thus clarified that, ‘‘to the extent
that the procedure set forth in Franko is inconsistent with the Supreme
Court’s decisions in Simms, it is no longer good law. In the future, if
appointed counsel . . . believes that there are no nonfrivolous issues and
seeks to withdraw by filing an Anders brief, the motion, brief and transcript,
if any, of the pertinent proceedings shall be filed with the appellate clerk
. . . . [The court] shall examine fully the briefs of counsel and shall review
the transcript if any is filed. If, after such examination, the court concludes
that the appeal is wholly frivolous, the court may grant counsel’s motion
for leave to withdraw appearance and refuse to appoint new counsel. Before
refusing to appoint new counsel, the court shall make a finding that the
appeal is wholly frivolous and shall file a memorandum setting forth the
basis for this finding . . . . If after a full examination the court concludes
. . . that the appeal is not wholly frivolous, it may allow counsel to withdraw
and appoint new counsel to represent the petitioner, or it may deny the
motion for leave to withdraw appearance and order counsel of record to
proceed with the appeal.’’ (Citations omitted.) Vazquez v. Commissioner
of Correction, supra, 234. The court in Vasquez confirmed, by this ruling,
that the frivolous claims exception to the purely statutory right to appointed
counsel in habeas appeals under § 51-296 (a) remains enforceable to this
date under Anders, despite the partial overruling of Franko on other grounds
in the Simms decisions.
24
On the basis of the foregoing analysis, we do not address the claims
raised in the present appeal related to the court’s ruling on the merits of
the defendant’s motion to correct.