Lead Opinion
Opinion
The petitioner, Bernard Gipson, appeals from the habeas court’s denial of his amended petition for a writ of habeas corpus. The petitioner claims that the habeas court improperly denied his amended petition because he was deprived of the effective assistance of appellate counsel when, following our
The following facts and procedural history are relevant to a resolution of this appeal. After a jury trial, the petitioner was convicted of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3) and sentenced to fourteen years imprisonment, execution suspended after twelve years, and five years probation. The petitioner appealed to this court claiming that the trial court had improperly denied his motion to suppress a witness’ pretrial identification. On May 16, 1995, we affirmed the judgment of conviction.
On May 2,1997, the petitioner filed an amended petition for a writ of habeas corpus, claiming that he was deprived of the effective assistance of appellate counsel in violation of the sixth and fourteenth amendments to the federal constitution. The petitioner alleged that appellate counsel failed to brief adequately the claims raised on direct appeal and neglected to file a petition for certification with our Supreme Court seeking discretionary review of this court’s decision.
On October 17, 1997, following an evidentiary hearing, the habeas court denied the petitioner’s amended petition for a writ of habeas corpus. On that same date, the habeas court granted the petitioner’s petition for certification to appeal and his application for a waiver of fees, costs and expenses. Additional facts will be set forth where necessary.
I
The petitioner first claims that he has a federal constitutional right to the assistance of appellate counsel in pursuing a discretionary state appeal.
“Although there is no constitutional right of appeal; Abney v. United States,
In Douglas v. California, supra,
In Ross v. Moffitt, supra,
In the present case, in accordance with Douglas v. California, supra,
In Wainwright v. Torna, supra,
II
The petitioner next claims that he has a statutory right to counsel in filing a petition for certification with our Supreme Court.
In reaching our conclusion that § 51-296 does not provide the petitioner with the right to the assistance of counsel in filing a petition for certification with our Supreme Court, we rely on the language of § 51-296, the relationship of that statute to legislation that preceded it, the legislative history of § 51-296 and the relative purposes of discretionary appeals to our Supreme Court from judgments of the Appellate Court as opposed to appeals as of right to either court.
We look first to the words of the statute itself. Rhodes v. Hartford,
“[T]he word ‘action’ has no precise meaning and the scope of proceedings which will be included within the term . . . depends upon the nature and purpose of the particular statute in question.” Carbone v. Zoning Board of Appeals,
Prior to 1965, counsel was provided for indigent defendants under limited circumstances in trial proceedings only, despite the existence of appellate review. From 1965 to 1974, the statutory right to counsel included representation in appeals to the Appellate Session of the trial court and on certification to the Supreme Court, in addition to trial proceedings. In 1974, the legislature eliminated all reference to a statutory right to counsel in appeals of any kind.
Connecticut “was the first state to adopt the public defender system.” State v. Hudson,
In 1958, the text of General Statutes (1958 Rev.) § 54-80 provided in relevant part: “Each such public defender shall act as attorney in the defense of any person
In 1959, the legislature established the Circuit Court; Public Acts 1959, No. 28, § 1; and modified the scope of a public defender’s representation. In Public Acts 1959, No. 28, § 13, which was codified at General Statutes (Sup. 1959) § 54-81a, the legislature first used the phrase “any criminal action.” That act provided in relevant part: “In any criminal action in the circuit court, the judge before whom the matter is pending shall, if he determines that the interests of justice so require, appoint an attorney to act as special public defender and represent the defendant. . . .” Public Acts 1959, No. 28, § 13.
Although criminal defendants have had a statutory right to appeal since at least 1882; see State v. Vaughan,
In 1974, the legislature repealed § 54-81a. Public Acts 1974, No. 74-317, § 12 (P.A. 74-317). Public Act 74-317, § 7, was codified at General Statutes (Rev. to 1975) § 51-296, and, as enacted, it provided in relevant part: “(a) In any criminal action, in any habeas corpus proceeding arising from a criminal matter, in any extradition proceeding, or in any juvenile court 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 act, designate a public defender or assistant public defender to
We are persuaded that, because the legislature repealed § 54-81a, and did not indicate in the text or the legislative history of P.A. 74-317, § 7, as codified in § 51-296, that an indigent defendant is entitled to the assistance of counsel in a discretionary appeal, the petitioner has no statutory right to the assistance of counsel in the present case. Given the language of § 51-296, we conclude, in fact, that the express repeal of § 54-81a in the same public act that enacted § 51-296 demonstrates a clear legislative intent to eliminate the provisions of § 54-81a and to replace them with those of § 51-296. “Where the repeal is clearly stated, the courts have no responsibility or authority but to follow and apply the legislative will as expressed.” 1A J. Sutherland, Statutory Construction (5th Ed. Singer 1993) § 23.07, p. 332. Moreover, “[u]nder common-law principles all rights, liabilities, penalties, forfeitures and offenses which are of purely statutory derivation and unknown to the common law are eliminated by the repeal of the statute which granted them, irrespective of the time of their accrual.” Id., § 23.33, p. 424-25. Because § 51-296 does not explicitly provide for representation in certification proceedings before our Supreme Court, the repeal of
Our conclusion is fortified by consideration of the relative function of discretionary appeals to our Supreme Court, as contrasted with the function of first appeals as of right. In this regard, Practice Book § 84-2 explicitly provides factors to be considered by our Supreme Court in deciding whether to grant certification. See footnote 5. Those factors do not focus on the accuracy of the conviction but, rather, on matters affecting the consistency and authority of the law, the public importance of the question and the need for supervisory review. Moreover, the granting or denial of certification indicates neither approval nor disapproval of the Appellate Court’s decision. State v. Cullum,
The procedure for certification reveals, therefore, that when our Supreme Court exercises discretionary review, its function is fundamentally different from the process of review by the Appellate Court. Although fundamental fairness is always a paramount concern in our judicial system, the factors enumerated in § 84-2 suggest that when our Supreme Court exercises its
For the foregoing reasons, we conclude that a petition for certification does not fall within the ambit of § 51-296’s reference to “any criminal action” and, therefore, the petitioner has no statutory right to the assistance of counsel in filing a petition for certification with our Supreme Court, seeking discretionary review of a final judgment of this court.
The judgment is affirmed.
In this opinion CRETELLA, J., concurred.
Notes
State v. Gipson,
The petitioner neither invokes the state constitution, nor provides an independent analysis under tire state constitution. Accordingly, we limit our analysis of this claim to the protection afforded by the federal constitution. See State v. Wright,
General Statutes § 51-1971' provides: “Upon final determination of any appeal by the Appellate Court, there shall be no right to further review except the Supreme Court shall have the power to certify cases for its review upon petition by an aggrieved party or by the appellate panel which heard the matter and upon the vote of three justices of the Supreme Court so to certify and under such other rules as the justices of the Supreme Court, shall establish. The procedure on appeal from the Appellate Court to the Supreme Court shall, except as otherwise provided, be in accordance with the procedure provided by rule or law for the appeal of judgments rendered by the Superior Court, unless modified by rule of the justices of the Supreme Court.”
Practice Book § 84-1 provides: “An appeal may be taken to the supreme court upon the final determination of an appeal in the appellate court where the supreme court, upon petition of an aggrieved party, certifies the case for review.”
Practice Book § 84-2 provides: “Certification by the supreme court on petition by a party 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.
*406 “(5) 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.”
In Ross v. Moffitt, supra,
We have noted that the right of appeal is essentially a statutory right and acquires its constitutional authority only in the sense that it exists within the framework of the guarantees of due process and equal protection. Gaines
Although § 51-296 does not discuss appellate proceedings, our Supreme Court has stated that an indigent has “the statutory right to competent trial counsel; Aillon v. Meachum,
The concurring opinion suggests a variety of policy arguments that operate in favor of extending § 51-296 to provide for counsel in discretionary appeals. Although we recognize the merits of some of those arguments, we maintain that they should be considered in the legislative forum. The appropriate exercise of judicial restraint compels us not to misread the language of the statute to achieve policy objectives conceived in the judicial forum. As the concurrence notes appropriately, “[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.” (Internal quotation marks omitted.) Conway v. Wilton, supra,
The concurring opinion offers four numbered and several additional arguments in favor of an expanded interpretation of the words “any criminal action” to include counsel in discretionary appeals. The concurrence contends, first, that if the legislature had intended to limit the scope of P.A. 74-317, § 7, to encompass only counsel in trial proceedings, the legislature logically would have qualified the phrase “[i]n any criminal action” by referring to the trial court. While the legislature did not explain why it did not use limiting language in P.A. 74-317, § 7, whereas it had previously referred to the Circuit Court and the Court of Common Pleas, there is no basis on which to speculate that it meant thereby to include discretionary appeals when, in fact, it eliminated the reference to appeals.
The concurring opinion argues, secondly, that the legislature did not explain why it repealed the portion of § 54-81a that had authorized the appointment of counsel in appeals, both to the Appellate Session and to the Supreme Court. The concurrence contends, in essence, that its silence should lead this court to give a new, broadened meaning to the phrase “in any criminal action,” that is, to interpret it to encompass the appellate rights
Third, the concurrence asserts that our interpretation undermines the legislature’s intent to provide effective services in the criminal sphere for indigent people, while its policy position effectuates that intent. Unquestionably, indigent people accused of crime will have their rights enhanced if public defenders are required to be provided for discretionary appeals. The legislature obviously is capable of expressing its own intent with regard to providing counsel. If it wants to extend those rights to discretionary appeals, it is quite capable of doing so plainly and unmistakably. Counsel is already provided for first appeals as of right If the legislature wants to extend the right of counsel beyond the federal constitutional requirements, it is free to do so whenever it chooses. It has not chosen to do so for some twenty-five years. In the interim, we note that this intermediate appellate court was created to replace the series of appellate divisions and sessions of the various trial courts. Conn. Const., amend. XX; Public Acts, Spec. Sess., June, 1983, No. 83-29. In the creation of this court, litigants were provided with a first appeal as of right to an appellate court which is separate from and independent of the trial courts. In 1985 and thereafter, the legislature has declined to extend public defender services beyond the appeal to this court or to the Supreme Court, in cases in which it is designated to hear first appeals as of right. See General Statutes § 51-199 (as revised by Public Acts 1997, No. 97-178). The concurring opinion’s circular arguments are premised on its own version of § 51-296. The legislative history cited by the concurrence, consisting of Senator Scalo’s remarks on a different section of what later became P.A. 74-317, is not relevant and probative with respect to the issue before this court.
Fourth, the concurrence argues that its “broad interpretation” of § 51-296 derives support from precedent that has adopted an expansive interpretation of the statute in habeas corpus proceedings. The concurrence appears to assert that Connecticut’s broad and expansive policy with respect to the provision of counsel for indigents in habeas matters should lead us to create a still broader and more expansive policy than the statutory language dictates, in the absence of legislative authority to do so. In fact, the interpretation of the statute in habeas proceedings follows from the specific language used by the legislature in § 51-296. In referring to counsel in habeas proceedings, the legislature used broad language, “in any habeas corpus proceeding arising from a criminal matter . . . .’’It is not the expansive judicial interpretation but, rather, the broad legislative language, that has produced the rights to counsel in habeas proceedings. See Lozada v. Warden, supra,
The concurrence argues further that rights to counsel should be extended to discretionary appeals because the certification process is technical and difficult and because review by our Supreme Court is significant. This matter is patently and unquestionably an issue for the legislature to consider in the exercise of its broad authority in such matters and its competence in weighing and providing for the adoption of its policy choices. To extend the statute in this case “would be inconsistent with the legislative policy of the statute by affording more protection . . . than the statutory scheme was designed to afford.” Bhinder v. Sun Co.,
Finally, the concurrence contends that we have failed to “explain adequately the impact [our] construction of § 51-296 will have on the present practice of the office of public defender in representing indigent defendants in filing petitions for certification or oppositions to the state’s petitions for certification.” The concurring opinion takes judicial notice of public defender and special public defender appearances in petitions for certification in 1998 and 1999. We note that the parties did not address the “present practice of the office of public defender” in these matters and we are not able to conclude what that practice is from the judicially noticed statistics. Lacking such knowledge, we are certainly not in a position to explain the impact on “the present practice.” Presumably, the public defender’s office undertakes such matters now as a matter of discretion, recognizing that it is not required to do so. Our decision concludes only that such representation is not required, but neither is it prohibited. If representation were to be required in discretionary appeals, there might well be a substantial impact on the public defender’s office. It would be shortsighted, in this regard, not to consider that there may well be serious economic ramifications to be weighed in malting such policy decisions. In plain terms, a decision to require appointed counsel to handle petitions for certification and discretionary appeals has an economic cost. The results of that policy, once enacted, would detract from the resources available for legal services to other indigent accuseds. The judiciary is not in a position to malee such decisions or to provide for the additional resources that would be needed to finance the expanded services. Those issues are for our legislature to consider in its
The legislative history relating to the creation of the Appellate Session of the Superior Court, reveals that the purpose of that session was to create time for our Supreme Court to focus on developing and maintaining the consistency of the law of the state. The statement by Joseph Keefe, executive secretary of the judicial branch, in support of the Appellate Session bill from the Judiciary Committee first notes the dramatic increase in the caseload of our Supreme Court and counsels that “[a]ny solution to the problem of an overburdened Supreme Court must reflect three important principles: (1) that the primary function of a state supreme court is to develop and maintain the consistency of the law of the state; (2) that a one-tier trial court system was enacted to provide equal justice to all citizens in our state; and (3) that the right to appeal is not absolute but may be conditioned by the state as long as the essential elements of an opportunity to be heard are provided.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 4, 1977 Sess., p. 1093. The statement further notes that because cases that do not raise substantial questions of law will be reviewed by the Appellate Court, and Supreme Court review will exist only by certification, “the appellate session will serve to preserve the integrity of the Supreme Court as the prime source for developing law for general application throughout the legal system.” Id., p. 1094.
In 1983, the legislature implemented article fifth, §§ 1 and 2, of the constitution of Connecticut, as amended by article twenty of the amendments, creating this intermediate Appellate Court to replace the series of appellate divisions of the various trial courts. Public Acts, Spec. Sess., June, 1983, No. 83-29. A review of the legislative history also reveals essentially the same purposes relating to the creation of the Appellate Court as those creating the Appellate Session of the Superior Court. 26 S. Proc., Pt. 16,
In 1997, the legislature amended General Statutes § 51-199 in response to the current practice of our Supreme Court in exercising its discretion by transferring cases to the Appellate Court. Public Acts 1997, No. 97-178 § 2 amended § 51-199 (b) (3) by eliminating class A felonies, and other felonies for which the maximum sentence that could be imposed exceeded twenty years, from the category of cases in which a defendant could appeal directly to our Supreme Court. We note, however, that in 1998, the legislature subsequently repealed Public Acts 1997, No. 97-178, § 2, thereby permitting a defendant, who is convicted of a class A felony or other felony for which the maximum sentence that may be imposed exceeds twenty years, to once again appeal directly to our Supreme Court. Public Acts 1998, No. 98-81, § 5. The testimony of Melissa A. Farley, a representative of the Judicial Branch, reveals that our Supreme Court transfers to the Appellate Court approximately two-thirds of the cases filed directly with our Supreme Court. Farley further stated that the purpose of the amendment was to increase efficiency in the clerk’s office. Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 1997 Sess., pp. 2795-96, 2909-10; see also 40 S. Proc., Pt. 7, 1997 Sess., pp. 2309-10. By this discretionary action, the Supreme Court itself exercised its discretion to determine which cases were appropriate for its review. The legislature further defined the jurisdiction of the courts to provide that only those cases meriting Supreme Court review would be filed directly with that court.
Practice Book § 43-30 provides in relevant part: “Where there has been a conviction after a trial, or where there has been an adverse decision upon an application for a writ of habeas corpus brought by or on behalf of one who has been convicted of a crime, it shall be the duty of the clerk of the court ... to advise the defendant ... of such rights as such defendant may have to an appeal . . . and of the right of an indigent person who is unable to pay the cost of an appeal to apply for . . . the appointment of counsel to prosecute the appeal.”
In light of our conclusion that the petitioner has neither a constitutional nor a statutoiy right to counsel in discretionary appeals, we need not address whether the petitioner was deprived of the effective assistance of appellate counsel in this case. We note, however, that, were we to review that issue, we would agree with the reasoning and the conclusion of the concurring opinion, based on the record in this case, that the petitioner failed to establish that he was deprived of the effective assistance of counsel.
Concurrence Opinion
concurring. Although I respectfully disagree with the conclusion reached in part II of the majority opinion, I would affirm the decision of the habeas court because each of the petitioner’s claims is without merit.
Although in Ross v. Moffitt,
“When we engage in statutory interpretation, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citations omitted; internal quotation marks omitted.) State v.
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 . . . .” While a petition for certification does not fall within the ambit of a habeas corpus proceeding, an extradition proceeding or a delinquency matter, the majority concedes that “it is unclear whether it falls within the meaning of § 51-296’s reference to ‘any criminal action.’ ”
Because the words “[i]n any criminal action” are not defined in § 51-296 or chapter 887, nor is the meaning of those words apparent from their context, it is appropriate to look for guidance to precedent that has interpreted § 51-296. Although the text of § 51-296 does not explicitly discuss appellate proceedings, our Supreme Court has stated that an indigent defendant has “the statutory right to competent trial counsel; Aillon v. Meachum,
Because the meaning of “[i]n any criminal action” is neither apparent from its context nor from precedent
To appreciate fully the nature and purpose of § 51-296, it is necessary to briefly review its statutory genealogy. The legislature first used the phrase “[i]n any criminal action” in Public Acts 1959, No. 28, § 13, which was
In hearings before the Judiciary Committee, Arthur Lewis, chairman of the committee on administration of criminal justice for the Connecticut Bar Association, stated that with the passage of Senate Bill No. 233, which became Public Acts 1965, No. 178, a “public defender can appeal the case to the Appellate Division and to the Supreme Court should the case go [that far].” Conn. Joint Standing Committee Hearings, Judiciary, 1965 Sess., p. 142. In discussing the changes brought about by the passage of Public Acts 1965, No. 178, the Appellate Division of the Circuit Court observed that Public Acts 1959, No. 28, § 13 “was repealed and replaced by more liberal and more comprehensive provisions . . . .” State v. DeJoseph,
Public Acts 1972, No. 281, § 23, which was codified in § 54-81a, provided in relevant part: “The public defender or assistant public defender may, in the performance of his regular duties appeal to the appellate division of the court of common pleas and, if certification is sought and granted, to the supreme court. . . .” Public Acts 1974, No. 74-183, § 150 (P.A. 74-183), which was codified in § 54-81a, provided in relevant part: “In any criminal action in the court of common pleas, the judge before whom the matter is pending shall, if he determines that the interests of justice so require, designate a public defender or an assistant public defender to represent the defendant. . . . The public defender or assistant public defender may, in the performance of his regular duties, appeal to the superior court and, if certification is sought and granted, to the supreme court. . . .”
In 1974, the legislature repealed § 54-81a, effective October 1, 1975. Public Acts 1974, No. 74-317, § 12 (P.A. 74-317). Public Act 74-317, § 7, was codified as General Statutes § 51-296 and, as enacted, it provided: “In any criminal action, in any habeas corpus proceeding arising from a criminal matter, in any extradition proceeding, or in any juvenile court matter, the court before which the matter is pending shall, if it determines, after investigation by the public defender or his office, that
Because the legislature repealed § 54-81a, and neither the text nor the legislative history of P.A. 74-317, § 7, explicitly discusses appellate proceedings, the majority interprets the phrase “[i]n any criminal action” in P.A. 74-317, § 7, to encompass only trial proceedings. Several factors suggest, however, that “[i]n any criminal action” encompasses trial proceedings as well as the provisions for appellate counsel that were set forth in § 51-81a.
First, because the legislative history to P.A. 74-317, § 7, is silent, it is reasonable to examine the statutes that preceded that act to determine whether they provide any insight into the meaning of “[i]n any criminal action.” If, as the majority claims, the phrase “[i]n any criminal action” can be inteipreted to include only trial proceedings, why did the legislature use qualifying language to limit the scope of that phrase between 1959 and 1974? In 1959, when the legislature first used this phrase, it qualified it by stating “[i]n any criminal action in the circuit court . . . .” Public Acts 1959, No. 28, § 13. In 1974, when the Court of Common Pleas assumed the jurisdiction and functions of the Circuit Court; see P.A. 74-183, §§ 5 and 7; the legislature once again limited the scope of this phrase by stating “[i]n any criminal action in the court of common pleas . . . .” P.A. 74-183, § 150. In 1974, when the legislature eliminated the reference to appellate proceedings in § 51-81a by repealing that statute and it adopted P.A. 74-317, § 7, it failed to use any qualifying language to limit the scope of “[i]n any criminal action . ...” As evidenced by its conduct between 1959 and 1974, “[t]he legislature is quite aware of how to use language when it wants to express its intent to qualify or limit the operation of a statute”;
Second, although the legislative history to P.A. 74-317, § 7, is silent, the legislature’s deletion of the limiting phrase “in the court of common pleas,” which appeared in § 54-81a, as amended by P.A. 74-183, § 150, suggests that the legislature did not intend to eliminate any of the provisions for appellate counsel that were set forth in § 51-81a. Whereas § 54-81a, as amended by P.A. 74-183, § 150, provided that an indigent defendant had a statutory right to counsel “[i]n any criminal action in the court of common pleas” and contained a separate provision concerning appeals to the Appellate Session of the Superior Couxt and the Supreme Court, P.A. 74-317, § 7, provided only that an indigent defendant had a statutory right to counsel “[i]n any criminal action . . . .” The legislature’s deletion of the limiting phrase “in the court of common pleas” in conjunction with its failure to discuss appellate proceedings in the text of P.A. 74-317, § 7, suggest that it intended to preserve the provisions for appellate counsel that were set forth in § 51-81a by subsuming them under the broad phrase “[i]n any criminal action.” An indigent has a statutory
Third, this interpretation of P.A. 74-317, § 7, effectuates the legislative intent underlying this act, whereas the majority’s interpretation undermines that intent. In construing a statute, “[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature”; (internal quotation marks omitted) Conway v. Wilton,
Fourth, this interpretation of P.A. 74-317, § 7, which was codified as § 51-296, derives additional support from precedent that has adopted an expansive interpretation of this statute in habeas corpus proceedings. Section 51-296 (a) provides that an indigent defendant has a right to counsel “[i]n any criminal action, in any habeas corpus proceeding arising from a criminal matter, in any extradition proceeding, or in any delinquency matter . . . .” (Emphasis added.) Although there is no federal constitutional right to counsel in habeas corpus proceedings; Pennsylvania v. Finley,
Although the majority properly points out that, in our judicial system, there are differences between the relative function of discretionary appeals and first appeals as of right, the right to apply for permissive
The majority also fails to explain adequately the impact its construction of § 51-296 will have on the current practice of the office of public defender in representing indigent defendants in filing petitions for certification or oppositions to the state’s petitions for certification. Although this information is not in the record, it is permissible to take judicial notice of information that is published in the Connecticut Reports.
The majority construes “[i]n any criminal action” in § 51-296 to provide for the appointment of counsel only in trial proceedings. When the majority’s construction of § 51-296 is considered in light of the other provisions of that statute and precedent, an indigent defendant has a statutory right to counsel only at trial, habeas hearings, habeas appeals, extradition proceedings and delinquency matters, and there is no statutory right to counsel in a first appeal as of right and a discretionary appeal to our Supreme Court. Pursuant to the majority’s interpretation of § 51-296, the legislature codified an indigent’s constitutionally protected right to trial counsel and it established a statutory right to counsel in certain proceedings where there is no constitutional mandate; however, it purposefully decided not to codify the constitutional mandate for the appointment of counsel in a first appeal as of right. “The law favors a rational statutory construction and we presume that the legislature intended a sensible result.” State v. Parmalee,
II
Although the petitioner has a statutory right to counsel in the present case, I would affirm the decision of the habeas court because each of the petitioner’s claims is without merit.
A
The petitioner first claims that he was deprived of the effective assistance of appellate counsel when his attorney failed to file a petition for certification with our Supreme Court. I do not agree.
Pursuant to § 51-296, the petitioner has a right to counsel in filing a petition for certification with our Supreme Court and “[i]t would be absurd to have the right to appointed counsel who is not required to be competent.” Lozada v. Warden, supra,
At a hearing before the habeas court, the petitioner testified that after this court had affirmed his conviction, he telephoned his attorney and asked her to file a petition for certification with our Supreme Court.
On appeal, “[t]he underlying historical facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . Historical facts constitute a recital of external events and the credibility of their narrators. So-called mixed questions of fact and law, which require the application of a legal standard to the historical-fact determinations, are not facts in this sense. . . . Whether the representation a defendant received . . . was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Citations omitted; internal quotation marks omitted.) Copas v. Commissioner of Correction,
After a careful review of the record applying the appropriate standard of review; see Copas v. Commissioner of Correction, supra,
First, in affirming the conviction, the panel of three appellate judges did not decide “a question of substance not theretofore determined by the supreme court
Moreover, the petitioner has the burden of establishing that his counsel’s performance was deficient. Strickland v. Washington, supra,
On the basis of all of the foregoing factors, I would conclude that the habeas court properly determined that the petitioner did not satisfy the first prong of the Strickland standard and, therefore, he was not deprived of the effective assistance of appellate counsel.
The petitioner next claims that he was denied the effective assistance of appellate counsel when his attorney failed to notify him of the full scope of his right to file a petition for certification. Specifically, the petitioner claims that General Statutes § 51-197f and Practice Book § 84-1 provide him with a right to file a pro se petition for certification seeking discretionary review of a final judgment from this court, and appellate counsel waived the petitioner’s right, without first obtaining his consent, by failing to inform him that he could file a pro se petition for certification. The petitioner claims that appellate counsel's duty to notify him of this right flows logically from, inter alia, Practice Book § 43-30 and precedent concerning waiver of the right to appeal. The lack of an adequate record precludes review of this claim.
The habeas court signed the transcript of its oral decision and filed a copy with the clerk of the court. The signed transcript of the habeas court’s oral decision is devoid of any reference to this specific claim. In particular, the signed transcript does not indicate whether the habeas court found that appellate counsel had notified the petitioner of his right to file a pro se petition for certification or whether counsel neglected to provide such notice. Without this predicate factual finding, it is not possible to review this claim. The burden of securing an adequate record for appellate review rests with the petitioner. Evans v. Commissioner of Correction,
In his final claim, the petitioner contends that his attorney’s failure to file a petition for certification with our Supreme Court deprived him of his only opportunity to seek review of this court’s affirmance of his conviction, in violation of the reasoning underlying our Supreme Court’s decision in Simms v. Warden,
Although Simms and the present case address entirely different subject matter, the petitioner’s argument relies on the reasoning underlying the decision in Simms. Simms established that a petitioner could appeal from a habeas court’s denial of his request for certification to appeal the denial of a petition for a writ of habeas corpus. Id., 612. In the present case, the petitioner claims that, unlike the petitioner in Simms, who was afforded an opportunity to appeal the habeas court’s denial of a request for certification to appeal, his attorney’s failure to file a petition for certification with our Supreme Court deprived him of his only opportunity to seek review of this court’s affirmance of his conviction.
The petitioner’s claim fails because he ignores the relief potentially available through filing a petition for a writ of habeas corpus. General Statutes “§ 52-470 (a) empowers the habeas court to dispose of cases ‘as law and justice require.’ ” James L. v. Commissioner of Correction,
General Statutes § 51-297 (f) provides: “As used in this chapter ‘indigent defendant’ means (1) a person who is formally charged with the commission of a crime punishable by imprisonment and who does not have the financial ability at the time of his request for representation to secure competent legal representation and to provide other necessary expenses of legal representation and (2) a child who has a right to counsel under the provisions of subsection (a) of section 46b-135 and who does not have the financial ability at the time of his request for representation to secure competent legal representation and to provide other necessary expenses of legal representation.”
To support its interpretation that “[i]n any criminal action” in § 51-296 is limited to trial proceedings, the majority concludes that the Lozada court read into the text of § 51-296 the constitutional mandate of assistance of counsel in first appeals as of right and, therefore, Lozada cannot be used to support abroad construction of § 51-296. The majority does not, however, provide any authority to support its explanation that the court in Lozada was required to read into the text of § 51-296 a constitutional mandate that exists independent of § 51-296. The basis for an indigent’s right to the assistance of counsel in a first appeal as of right is the federal constitution. See Douglas v. California,
Precedent establishes that “[i]n endeavoring to interpret the language of [a statute], we must take account of our duty, when presented with a constitutional challenge to a validly enacted statute, to construe the statute, if possible, to comport with the constitution’s requirements." Rules Committee of the Superior Court v. Freedom of Information Commission,
In several instances, after examining the particular statute in question, courts have determined that an “action” also included appellate proceedings. See Mulcahy v. Mulcahy,
“To take judicial notice is a function, and to apply it to the decision of causes [is] a right, which appertains to every court of justice, from the lowest to the highest. ... A court may take judicial notice of all matters that are (1) within the knowledge of people generally in the ordinary course of human experience ... or (2) generally accepted as true and capable of ready and unquestionable demonstration . . . .” (Citations omitted; internal