221 Conn. 84 | Conn. | 1992
Lead Opinion
The defendant has petitioned for certification for review by this court of the dismissal of
The dissenting opinion does not rely on any of the criteria suggested by Practice Book § 4127
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 con
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.
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.”
Dissenting Opinion
dissenting. I would grant the defendant’s petition for certification raising the sole question of whether the Appellate Court abused its discretion by not vacating its order to dismiss the defendant’s appeal. Because I believe that the Appellate Court abused its discretion under the facts of this case, upon the granting of certification, I would summarily vacate the dismissal, and direct that the defendant file his brief in the Appellate Court within ten days. The state also
The relevant facts are as follows. The defendant, Richard Weber, was convicted of assault in the second degree on May 30, 1990, and on August 20, 1990, he was sentenced to a term of five years imprisonment. The trial court, Hadden, J., appointed the trial counsel, an assistant public defender, to prosecute the defendant’s appeal.
The trial transcript was not completed until January 8,1991. On February 11,1991, the Appellate Court granted the defendant’s first motion for an extension of time to file his brief on March 15, 1991; and, pursuant to a further request, the court granted an extension of time to April 15, 1991. On May 2, 1991, the Appellate Court granted a third motion for an extension of time with the following proviso: “This appeal will be dismissed unless the defendant-appellant’s brief is filed by June 3, 1991.” Each request for an extension of time was predicated on defense counsel’s representations that, as an assistant public defender, he was engaged in heavy appellate and trial caseloads that prevented him from reviewing the 950 pages of transcripts and preparing the appellate brief for the defendant. The Appellate Court was furnished the names of the cases assigned to counsel and the trial judge involved in those other matters.
On May 30, 1991, before the expiration of the last extension of time, defense counsel filed a motion to “rescind or amend the order of final extension,” seeking a further extension of thirty days. In the brief supporting the motion, he again detailed his onerous criminal assignments
On June 26, 1991, the Appellate Court denied the defendant’s motion to rescind the court’s order and, on September 5, 1991, dismissed the defendant’s appeal. Thereafter, the defendant filed with this court a motion for review and a petition for certification, both of which were denied. On October 15,1991, counsel for the defendant filed his brief in the Appellate Court together with a motion for permission to file a late brief. The brief and motion were returned to him by the clerk
Although the Appellate Court must be able to control its own docket, its discretion in doing so is not unbridled. In exercising our supervisory powers over the Appellate Court; Practice Book § 4127 (3); we are duty bound to determine whether the Appellate Court abused its discretion. I conclude that, in this instance, it did.
Fundamental fairness requires that when a person’s liberty is at stake, the ultimate sanction of dismissal of that person’s appeal for a violation of a court rule, even if the conduct of the criminal defendant is implicated, should be a last resort. We just recently emphasized that the severity of the preclusion sanction for the failure to comply with the rules of the court must be balanced with the defendant’s right to present a defense. State v. Genotti, 220 Conn. 796, 810-11, 601 A.2d 1013 (1992). When, however, the criminal defendant is not personally responsible for the violation of a rule, it is crystal clear that appellate courts must refrain from dismissing the appeal and should consider alternate sanctions against the attorney to control its docket. See Taylor v. Illinois, 484 U.S. 400, 431-32, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988) (Brennan, J., dissenting).
Finally, I cannot agree with the majority’s response that the defendant’s rights can be vindicated by proceedings in habeas corpus. It "may be an efficient method in the eyes of the majority, but efficiency is not the touchstone for liberty. Habeas corpus proceedings simply take time.
The defendant’s brief contained the following representations: “Counsel is an Assistant Public Defender in the New Haven Judicial District and
“Counsel has argued three cases before the Appellate Court over the last five weeks. They include: State v. Cayouette, A.C. 9101 on April 24, 1991; State v. Arline, A.C. 8463 on April 30, 1991; State v. Ortiz, A.C. 8932, on May 28, 1991.
“Additionally, counsel had three separate probable cause hearings scheduled over the last six weeks on newly assigned murder cases. These include: State v. Ham, CR6-338144 nolled on May 9, 1991 after considerable preparation; State v. Abdul Muhammad, CR6-339276, no probable cause found after hearing with substituted information charging manslaughter first degree filed thereafter on May 23, 1991; State v. Scott Lewis, CR6-340523, state elected not to proceed with probable cause hearing and filed substitute manslaughter charges in a double homicide case on May 30, 1991. Finally, counsel had an initial commitment proceeding at the Psychiatric Security Review Board concerning a recently acquitted client by reason of insanity on May 23, 1991.”
“In the absence of any evidence that a defendant played any part in an attorney’s willful [rule] violation, directly sanctioning the attorney is
To require the defendant to go the route of habeas corpus also puts an additional burden on the judicial system, the public defenders and state’s attorneys. Surely, we could do without this additional litigation.