DocketNumber: No. CV 92 1580 S
Citation Numbers: 1993 Conn. Super. Ct. 4842
Judges: SAMUEL J. SFERRAZZA, JUDGE
Filed Date: 5/18/1993
Status: Non-Precedential
Modified Date: 4/17/2021
On March 29, 1993, the petitioner filed a revised, amended petition asking the court to issue a writ of habeas corpus to redress certain claims of illegality surrounding his convictions, following guilty pleas under the Alford doctrine, to charges of burglary first degree, robbery first degree, and sexual assault first degree. For these offenses the petitioner received a total effective sentence of twenty-five years confinement.
The petition contains five counts alleging that the trial court failed to advise the petitioner of his appellate and sentence review rights; that his public defender rendered ineffective assistance by failing to advise him as to these matters; that his public defender rendered ineffective assistance regarding the petitioner's decision to plead guilty; and that his guilty pleas were, as a consequence of these deficiencies, not knowingly and intelligently made. There is no indication in the petition that the petitioner attempted to appeal or applied for sentence review or that such attempts were unsuccessful.
On April 14, 1993, the respondent filed this motion to quash the petition.
A CT Page 4844
The late filing of an appeal does not automatically preclude appellate review. Under Connecticut Practice Book Section 4056 it is incumbent on the appellee to file a motion to dismiss if the appeal papers are filed late. The appellee may decline to file such a motion and have the merits of the appeal decided.
Even if it were likely that the appeal would be dismissed because not timely filed or because exemptions have been consistently denied in the past, the petitioner must still make the attempt to have his appeal heard before seeking habeas review. For an analogous federal habeas rule see Federal Habeas Corpus Practice And Procedure, James S. Liebman, Vol. 1, Section 6.2, p. 58. One reason given for requiring such an attempt is "to give the . . . courts the opportunity to lay aside state procedural obstacles to relief and reach the merits. . .," Ibid.
Also, Connecticut Practice Book Section 945 indicates that only "[w]here there has been a conviction after a trial" does a duty devolve upon the clerk to inform a defendant of his appellate rights. The court notes that former Practice Book Section 483A, which was a predecessor to Section 945, used to require the clerk to advise even where conviction followed a guilty plea, Ibid, p. 259, fn. 3. That erstwhile rule was repealed and replaced by Section 945 which no longer contains, the broader duty but rather limits its application to convictions obtained "after a trial."
Also, the allegations contained in the first count amounts to no more than a claim of failure to advise of appellate rights. Amato v. Warden, supra, implies that a habeas petition also must specifically claim that, at the time of the conviction, the petitioner "had a genuine CT Page 4845 appealable issue which he might have raised had he been advised of his right to appeal."
The absence of a duty to inform and the absence of a specific allegation of a genuinely appealable issue regarding the trial court's acceptance of the petitioner's pleas and sentences are fatal to this count.
In the second count, the petitioner claims that the trial court failed to inform the petitioner of his statutory right to apply for review of his sentence by the Sentence Review Division under Connecticut General Statutes Section
The respondent moves to quash this count on the basis of a lack of ripeness which leaves the petitioner's claim nonjusticiable. Like the first count, the second count alleges a failure to inform. It contains no allegation that the petitioner ever applied for and was denied sentence review because his application was filed more than thirty days after imposition of sentence, the time limit set forth in Section
Where the clerk fails to provide the written notice required by Section
It is a well-settled rule that the existence of an actual controversy is an essential requisite to jurisdiction, Jones v. Warden,
In order to be entitled to habeas corpus relief based on a claim of ineffectiveness of counsel, the petitioner must prove the two components of such a claim. First, the petitioner must establish that his attorney's performance was deficient, and, second, that this deficient performance prejudiced the defense, Johnson v. Commissioner,
Because there is no allegation that the petitioner's attempts to appeal his convictions or apply for sentence review were turned away, there are no "outcomes" of the proceedings adverse to the petitioner. It remains possible for the petitioner to attempt to appeal and apply for sentence review, albeit late, and have his claims heard on the merits. The petitioner cannot assert that the outcome of his case would have been different until that outcome is known.
As stated above, sentence review is occasionally granted after the thirty day time limit in which to apply when the reason for late application is failure to receive written notice from the clerk. Also, as noted above, the late filing CT Page 4847 of an appeal does not automatically preclude appellate review. No prejudice to the petitioner having yet occurred, according to the allegations in his petition, this claim is undecidable at this time.
Paragraph 10 of the fourth count indicates that trial counsel inadequately investigated the law regarding good time credits, eligibility for early release programs, and estimates as to the actual confinement time the petitioner might expect to serve. Paragraph 11 of that count indicates that trial counsel improperly advised the petitioner regarding the probable sentence he might receive if convicted after trial, as well as the areas mentioned in paragraph 10. Nowhere in this count is the purported erroneous advice recited nor is it stated what specific advice was not given that ought to have been given.
Likewise as to the fifth count, paragraphs 11 and 12 allege that the petitioner's counsel failed to "correctly" and "adequately" inform him as to his appellate and sentence review rights as well as the areas of advice mentioned in count four. Again, nowhere in this count is the specific incorrect or omitted advice recounted.
In a writ of habeas corpus alleging illegal confinement, the petition must set forth the specific grounds for the issuance of the writ, including the basis for the claim of illegality, Macri v. Hayes,
Counts four and five contain no specifics as to the manner in which the advice given to the petitioner was either "incorrect" or "incomplete" because the actual advice under attack is not specifically mentioned. In other words these counts touch on the general areas of advice which were incorrectly or incompletely conveyed to the petitioner, but not as to the specific advice which was actually conveyed or should have been conveyed.
It is incumbent upon the petitioner to state in his petition precisely what incorrect advice was given and what essential advice was not given that should have been given, Macri v. Hayes, supra; and Strickland v. Washington, supra.
Therefore, as to all counts the respondent's motion to quash is granted, and the petitioner has forty-five days in which to plead over or any count not so addressed will be dismissed.
BY THE COURT,
Samuel J. Sferrazza Judge, Superior Court