State v. BrownState v. Brown
- Reporters:
- Before:
- Ryan
On Sеptember 29, 1961, upon a trial to the jury, the defendant was found guilty of the crime of rape. Thereafter he pleaded guilty to the secоnd part of the information wherein he was charged with being an habitual criminal under
Thе record in this case indicates that the defendant’s notice of appeal to this court was filed five years and nine months after finаl judgment was rendered in the Superior Court. “The right of appeal is purely statutory and is accorded only if the conditions fixed by statute and thе rules of court for taking and prosecuting the appeal are met. Kennedy v. Walker, 135 Conn. 262, 266, 63 A.2d 589.” Howarth v. Northcott, 152 Conn. 460, 462, 208 A.2d 540. Obviously, the two-week period provided for *401 filing an appeal by § 378 of the 1951 Practice Book (now twenty dаys as provided in Practice Book, 1963, § 601, as amended) had expired, and there is nothing in the record to indicate that there was any attempt made by the defendant to take an appeal within the time limited by our rule. This appeal is predicated upon the judgment of the Superior Court (Dube, J.) in the habeas corpus action dated June 10, 1965, wherein the court found the issues for the defendant warden and denied the defendant’s petition for a writ of habeas corpus, but purported to grant the defendant the right to a late appeal in his criminal еase.
There are two situations in which the trial court or a judge thereof is authorized to allow an appeal subsequent to the expiration of the time limited by the rule. The first is where, under the provisions of § 413 of the 1951 Practice Book (now Practice Book, 1963, § 665), the court or a judge thereof grants an extension of time for the filing or the perfecting of an appeal. More v. Urbano, 150 Conn. 687, 688, 185 A.2d 475. The only other situation in which this court hаs approved the action of a trial court or a judge thereof in allowing an appeal after the period provided under the rule has elapsed without the granting of proper extensions of time under § 413 of the 1951 Practice Book (now Practice Boоk, 1963, § 665) has been “where on habeas corpus it has been properly determined that a right of appeal required by the federal сonstitution has been denied,” in which case “any rule restricting an appeal merely because of lapse of time necessаrily is ineffective to preclude an appeal in accordance with federal constitutional requirements.” Fredericks v. Reincke, 152 Conn. 501, 508, 208 A.2d 756. In a recent сase, we held: “[A] petitioner may collaterally raise fed *402 eral constitutional claims in a habeas corpus proceeding even though he has failed to appeal his federal constitutional claims directly to us if he alleges and proves, by a fair preponderance of the evidence, facts which will establish that he did not deliberately bypass the orderly procedure of a direct appeal. To be more precise, he must both allege in his petition and prove at the habeas corpus hearing thаt he did not ‘after consultation with competent counsel or otherwise, understanding^ and knowingly . . . [forego] the privilege of seeking to vindicate his federal claims’ by a direct appeal to this court. Fay v. Noia, . . . [372 U.S. 391, 439, 83 S. Ct. 822, 9 L. Ed. 2d 837]. The burden of alleging and proving such facts is rightfully on the petitioner. Nash v. United States, 342 F.2d 366, 368 (5th Cir.). The determination whether a prisoner has deliberately bypassed the orderly procedure of an appeal must be made from the facts in each case. Fay v. Noia, supra, 440; see Townsend v. Sain, 372 U.S. 293, 312, 83 S. Ct. 745, 9 L. Ed. 2d 770. Unless such a procedure as that herein laid down is followed, the way is left open for any long-term prisonеr deliberately to defer his habeas corpus action until the requisite evidence for a conviction has disappeared, so that, if his habeas corpus is successful, he is necessarily released regardless of the evidence which was originally available to the state to prove his guilt.” Vena v. Warden, 154 Conn. 363, 366, 225 A.2d 802.
In the instant case, there was no determination by the trial court in the habeas corpus proceeding that the defendant did not deliberately bypass the orderly procedure of a direct appeal and that a constitutionally requirеd right of appeal was denied him. In fact, by denying the defendant’s petition for a writ of habeas corpus and rendering judgment for *403 the warden, the trial court rejected the contention of the defendant that he had been denied a right of appeal required by the federal constitution. The trial court was therefore without authority to grant a late appeal, and the appeal filed pursuant to its оrder is not properly before us.
The appeal is dismissed without prejudice to the right of the defendant in an application for а writ of habeas corpus to seek a determination of his claim that he has been deprived of a right of appeal required by the federal constitution.
In this opinion the other judges concurred.