27 Conn. App. 780 | Conn. App. Ct. | 1992
The petitioner appeals from the judgment rendered granting the respondent’s motion to quash his petition for a writ of habeas corpus.
On July 19, 1989, the petitioner pleaded guilty to robbery in the third degree in violation of General Statutes § 53a-136, and admitted to a violation of probation in violation of General Statutes § 53a-32, with no agreed sentence recommendation. On September 13, 1989, he was sentenced to consecutive terms of incarceration of five years on the robbery and two years on the violation of probation. The petitioner did not file
On appeal, the petitioner first claims that his sentence was illegal because he was denied the right of allocution, that is, he was not afforded the right to speak in his own behalf before the court at the sentencing hear
In State v. Carr, 172 Conn. 458, 476, 374 A.2d 1107 (1977), our Supreme Court, after tracing the common law history of the right of allocution, noted that the defendant made no attempt to show prejudice from not having been allowed personally to address the judge. It is clear from Hill and Carr that the defendant’s failure to address the court personally does not render the sentence imposed illegal. The Supreme Court also recognized that Practice Book § 2330, the predecessor to Practice Book § 919, had become effective subsequent to the sentencing hearing. State v. Carr, supra, 477 n.6.
The petitioner neither claims, nor does the record reflect, that he sought to be heard and was denied the opportunity to speak. Nor does he claim that the trial court had before it, in the presentence investigation report or elsewhere, any false or misleading information or facts that should not have been considered in imposing sentence. Rather, the petitioner complains that the trial court did not expressly ask him if he wanted to be heard at the sentencing hearing.
The petitioner’s second claim on appeal is ineffective assistance of counsel at the sentencing hearing. The state argues that no facts were alleged sufficient to give rise to a recognizable claim that the standard of “reasonably effective assistance” had not been reached.
A motion to quash may be used to attack a writ of habeas corpus for defects appearing on the face of the writ. Fasulo v. Arafeh, 173 Conn. 473, 490, 378 A.2d 553 (1977) (Loiselle, J., dissenting). On a motion to quash a petition for a writ of habeas corpus, the allegations of the petitioner are deemed admitted. Practice Book § 532; Doe v. Doe, 163 Conn. 340, 341, 307 A.2d 166 (1972). A motion to quash is the equivalent to a demurrer
“In a writ of habeas corpus alleging illegal confinement the application must set forth specific grounds for the issuance of the writ including the basis for the claim of illegal confinement.” Macri v. Hayes, 189 Conn. 566, 568, 456 A.2d 1186 (1983).
In its articulation, the court cited page two of the sentencing hearing transcripts dated September 13, 1989, and the “highly speculative nature of the claim with respect to the standards enunciated in Strickland v. Washington, [supra].” The transcript shows that before the court asked defense counsel to speak, it had read the presentence investigation report and was aware of the petitioner’s prior criminal record and previous parole and probation. Defense counsel asked the court to consider the petitioner’s background in imposing sentence, including the fact that he had had a troubled life. While the petitioner, through counsel, in effect threw himself on the mercy of the court, there are no facts alleged in the petition, nor does the record reveal, that the petitioner wanted to speak, had something to say that might have affected the imposition of sentence,
We are also unpersuaded that the petitioner’s remaining two claims of ineffective assistance merit an eviden-tiary hearing. The petitioner claims that defense counsel failed to request that the court allow the petitioner to speak and that defense counsel failed to advise the petitioner that he had a right to appeal on the grounds that he was not given the right to speak in violation of Practice Book § 919.
In summary, the amended petition is a pleading that on its face is legally insufficient. The petitioner does not allege facts sufficient to support a claim that he was deprived of a fundamental right, or that he received ineffective assistance of counsel.
The judgment is affirmed.
In this opinion the other judges concurred.
A motion to quash a petition for a writ of habeas corpus, if granted, is appealable as a final judgment. Buster v. Commissioner, 26 Conn. App. 48, 50, 596 A.2d 943 (1991).
Practice Book § 919 provides in pertinent part: “Before imposing a sentence or making any other disposition after the acceptance of a plea of guilty or nolo contendere or upon a verdict or finding of guilty, the judicial authority shall, upon the date previously determined for sentencing, conduct a sentencing hearing as follows:
“(1) The judicial authority shall afford the parties an opportunity to be heard and, in his discretion, to present evidence on any matter relevant to the disposition, and to explain or controvert the presentence investigation report, the alternate incarceration assessment report or any other document relied upon by the judicial authority in imposing sentence.
“(3) The judicial authority shall allow the defendant a reasonable opportunity to make a personal statement in his own behalf and to present any information in mitigation of the sentence.”
Practice Book § 532 provides: “The sufficiency of the petition on which the writ was granted and the propriety of the issuance of the writ may be tested, before a return is filed, by a motion to quash. On such a motion the allegations of the petition are deemed admitted. The motion to quash is not a means by which to test the legal sufficiency of the facts alleged in a return or the answer to the return.”
In Carr, our Supreme Court noted that “this constitutional issue was neither raised at the trial level nor briefed on appeal.” State v. Carr, 172 Conn. 458, 475, 374 A.2d 1107 (1977).
The motion to strike has replaced the demurrer in our practice. Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989).
The Strickland standard is two-pronged: the defendant must show first that counsel’s performance was inadequate, and second that the deficient performance prejudiced the defense.