State v. Weber

Per Curiam.

The defendant has petitioned for certification for review by this court of the dismissal of his appeal by the Appellate Court for failure to file his brief within the time limited by the rules of practice as extended by the Appellate Court. Only one member of this court deems the single issue raised by the petitioner, whether the dismissal was appropriate, sufficiently meritorious to warrant such review. Accordingly, because General Statutes § 51-197Í requires the vote of two justices of this court for certification, we have today ordered that certification be denied. State v. Weber, 221 Conn. 909, 600 A.2d 1363 (1992).

The dissenting opinion does not rely on any of the criteria suggested by Practice Book § 4127¹ as grounds meriting the grant of certification. It relies on two bases for maintaining that certification is appropriate: (1) defense counsel’s claim that his obligations to other clients assigned to him as a public defender made it impossible to comply with the time constraints of the rules of practice for filing a brief, even as extended by the Appellate Court from February 19, 1991, when it was due, until September 5,1991, when the appeal was dismissed; and (2) the well established constitutional right of the defendant to a disposition of his appeal on the merits.

Whether there was any reasonable excuse for defense counsel’s delay of more than seven months beyond the forty-five days prescribed by Practice Book § 2007 for filing an appellant’s brief is not an issue that this court is as competent to consider as the Appellate Court, which had granted his three motions extending the time to June 3, 1991, and had also refrained from actually dismissing the appeal until September 5, 1991. An assertion that counsel has been so overburdened by his other assignments that he could not reasonably be expected to file a brief within the time allowed is a familiar basis for seeking an extension of time. Such a claim can hardly be deemed as a matter of law to constitute the “extraordinary cause” required by Practice Book § 4040 (c) (2) for an extension of time. The Appellate Court was not bound to accept defense counsel’s assertion at face value simply because, in responding to the petition, the state, which has frequently sought extensions on similar grounds, agreed that he was overburdened. If agreement between the state and defense counsel that such delay was justified were held to mandate an extension of time, the Appellate Court would have little control over its docket. Since dismissal is a sanction authorized by Practice Book § 4055 for failure to file a brief within the time allowed, there appears to be little basis for reviewing this exercise of discretion by the Appellate Court regulating the progress of appeals in that court.

We agree with the dissenting opinion that the dismissal of the appeal that has resulted from defense counsel’s failure to file his brief within the time allowed cannot be permitted to deprive the defendant of his constitutional right to appellate review of his conviction on the merits. The dismissal does terminate the present appeal, but it does not bar the defendant from proceeding with a habeas corpus petition seeking the opportunity to file a new appeal. As the basis for such a petition under the circumstances of this case would ordinarily be the ineffective assistance of counsel, his present counsel would not be likely to represent the defendant in a new appeal. Whether or not there is justification for present counsel’s inordinate delay in filing a brief, his services in this appeal may well have been ineffective and the defendant may have been deprived of his constitutional rights.

It is unclear whether an additional proceeding in habeas corpus is a more efficient method of vindicating the defendant’s right to an appeal than ordering reinstatement of his present appeal after a further proceeding in this court. Nevertheless, it is essential that the authority of the Appellate Court to impose sanctions for egregious violations of the rules of practice not be undermined for considerations of judicial efficiency in a single case. That goal for the judicial system as a whole cannot be achieved unless all members of the bar come to realize that sanctions will be imposed for serious violations of the rules of practice, which are designed to ensure that appeals are disposed of without inordinate delay.

1 Practice Book § 4127 provides: “Certification by the supreme court on petition by a party or request by the appellate panel is not a matter of right but of sound judicial discretion and will be allowed only where there are special and important reasons therefor. The following, while neither controlling nor fully measuring the court’s discretion, indicate the character of the reasons which will be considered:

“(1) Where the appellate court has decided a question of substance not theretofore determined by the supreme court or has decided it in a way probably not in accord with applicable decisions of the supreme court.

“(2) Where the decision under review is in conflict with other decisions of the appellate court.

“(3) Where the appellate court has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by any other court, as to call for an exercise of the supreme court’s supervision.

“(4) Where a question of great public importance is involved.

“(5) With respect only to appeals from the appellate court, where the judges of the appellate panel are divided in their decision or, though concurring in the result, are unable to agree upon a common ground of decision.”