Opinion
No. CV 08-215893
April 29, 2010
MEMORANDUM OF DECISION RE MOTION FOR NEW TRIAL
The defendant, Angel Casanova, was convicted by a jury of sexual assault in the first degree in violation of General Statutes § 53a-71(a)(1), sexual assault in the second degree in violation of § 53a-72(a)(4), sexual assault in the third degree in violation of § 53a-72(a)(1) and risk of injury to a minor in violation of § 53-21(a)(2). After the verdict but prior to sentencing, the defendant filed a motion for a new trial, pursuant to Practice Book § 42-53, and supporting memorandum. The defendant claims that he was denied his constitutional right to the assistance of counsel as guaranteed by the sixth amendment of the United States constitution and article first, § 8, of the Connecticut constitution. Specifically, the defendant asserts that during the course of his criminal trial defense counsel was under an administrative suspension from the practice of law in Connecticut, pursuant to Practice Book §§ 2-70 and 2-79, and that her ineligibility to practice law at that time resulted in a denial of his constitutional right to counsel.
Section 42-53 provides in relevant part: "(a) Upon motion of the defendant, the judicial authority may grant a new trial if it is required in the interests of justice. Unless the defendant's noncompliance with these rules or with other requirements of law bars his . . . asserting the error, the judicial authority shall grant the motion: (1) For an error by reason of which the defendant is constitutionally entitled to a new trial; or (2) For any other error which the defendant can establish was materially injurious to him . . ."
Section 2-70 provides in relevant part: "(a) The judges of the superior court shall assess an annual fee in an amount adequate for the proper payment of claims and the provision of crisis intervention and referral assistance under these rules and the costs of administering the client security fund. Such fee . . . shall be paid by each attorney admitted to the practice of law in this state . . . (b) Any attorney . . . who fails to pay the client security fund fee in accordance with this section shall be administratively suspended from the practice of law in this state . . . until such payment has been made."
Section 2-79 provides in relevant part: "The client security fund committee shall send a notice to each attorney who has not paid the client security fund fee pursuant to Section 2-70 of these rules that the attorney's license to practice law in this state may be administratively suspended . . . The client security fund committee shall submit to the clerk of the superior court for the Hartford Judicial District a list of attorneys who did not provide proof of payment or exemption . . . Upon order of the court, the attorneys so listed and referred to the clerk shall be deemed administratively suspended from the practice of law in this state until such time as payment of the fee is made, which suspension shall be effective upon publication of the list in the Connecticut Law Journal. An administrative suspension of an attorney for the failure to pay the client security fund fee shall not be considered discipline, but an attorney who is placed on administrative suspension for such failure shall be ineligible to practice law in this state, and shall not be considered in good standing . . . until such time as the fee is paid."
The court held an evidentiary hearing on April 1, 2010. Attorney Claudia Jones from the Office of the Public Defender testified that she represented the defendant during his criminal trial. Attorney Jones has been a member of the Connecticut bar since December 1999 Attorney Jones stated that jury selection in the defendant's case commenced on September 18, 2009, and that a verdict was rendered on October 2, 2009. Due to an oversight, Attorney Jones had been administratively suspended on June 16, 2009, for failing to pay the client security fund fee for the 2008 calendar year. When she learned of the suspension, Attorney Jones paid the fee and was reinstated on October 8, 2009. Attorney Jones was therefore unknowingly under an administrative suspension throughout the entirety of the defendant's criminal trial.
DISCUSSION
The defendant claims that because Attorney Jones was administratively suspended and, consequently, not eligible to practice law in Connecticut at the time of his trial, he was denied the constitutional right to the assistance of counsel. The defendant raises this claim by way of a motion for a new trial under Practice Book § 42-53. "Practice Book § 42-53 provides for the granting of a motion for a new trial in the interests of justice, for constitutional error or for other materially injurious error." (Internal quotation marks omitted.) State v. Gonzalez, 106 Conn.App. 238, 262, 941 A.2d 989, cert. denied, 287 Conn. 903, 947 A.2d 343 (2008). The function of a § 42-53 motion for a new trial is to address alleged errors committed by the court that deprived the defendant of a fair trial; State v. Synakorn, 239 Conn. 427, 435, 685 A.2d 1123 (1996); and "is limited to trial errors appearing on the record." State v. Murdick, 23 Conn.App. 692, 704, 583 A.2d 1318, cert. denied, 217 Conn. 809, 585 A.2d 1233 (1991), citing State v. Jones, 205 Conn. 723, 730, 535 A.2d 808 (1988). "This motion is distinguished from a petition for a new trial, pursuant to Practice Book [§ 42-55], in which a defendant seeks a new trial based on newly discovered evidence." State v. Murdick, supra, 23 Conn.App. 704.
In the present matter, the defendant has not alleged that the court committed an error during the course of his trial. His claim concerns information regarding the administrative status of defense counsel, which was obtained after the completion of the trial and is therefore not included in the trial record. Such information is akin to newly discovered evidence and should be addressed through a petition for a new trial under § 42-55. Moreover, the defendant's claim that he was denied the right to counsel can be understood more specifically as the denial of "the right to the effective assistance of counsel." (Internal quotation marks omitted.) Guerreo v. U.S., 186 F.3d 275, 279 (2d Cir. 1999), quoting Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "Claims of ineffective assistance of counsel should be brought in collateral proceedings, either by way of a petition for a new trial or a petition for a writ of habeas corpus." State v. Murdick, supra, 23 Conn.App. 704, citing State v. Leecan, 198 Conn. 517, 541-42, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S.Ct. 2922, 91 L.Ed.2d 38 (1986). Consequently, a motion for new trial under § 42-53 is not the appropriate procedural vehicle for the petitioner's claim. Despite this procedural infirmity, which was noted but not pursued by the State, the court will consider the merits of the petitioner's claim because a hearing was held on the defendant's motion.
The question presented is a narrow one: Whether the defendant was denied his constitutional right to counsel where at the time of trial his attorney was licensed to practice law in the state of Connecticut yet was unknowingly under an administrative suspension for the failure to pay the client security fund fee. The parties have not submitted, and this court was unable to find, any Connecticut case law addressing the right to counsel as it pertains to counsel's administrative status at the time of representation. Other jurisdictions, however, have addressed similar issues and those cases are instructive in the disposition of the defendant's claim here.
The defendant relies on McKinzie v. Ellis, 287 F.2d 549 (5th Cir. 1961), in support of his claim. In McKinzie, the Fifth Circuit held that representation by counsel who had been removed from the state bar membership rolls because of the nonpayment of dues violated the defendant's constitutional right to due process. Id., 552. The court reasoned that at the time of the representation counsel was not a "practicing" attorney under the law. Id., 551-52. That case is not helpful to the defendant, however, because the Fifth Circuit renounced it in Beto v. Barfield, 391 F.2d 275 (5th Cir.) (per curiam), cert. denied, 393 U.S. 888, 89 S.Ct. 205, 21 L.Ed.2d 166 (1968), due to a change in the interpretation of state law by the Texas Court of Criminal Appeals in Hill v. State, 393 S.W.2d 901 (Tex.Cr.App. 1965).
Both the United States and Connecticut Constitutions guarantee an accused "[i]n all criminal prosecutions" the right to counsel. U.S. Const., amend. VI; Conn. Const., art. I, § 8. In general, the constitutional guarantee of the assistance of counsel "is not satisfied if the accused is represented by a person who, for failure to meet substantive bar admission requirements, has never been admitted to the practice of law in any jurisdiction." U.S. v. Novak, 903 F.2d 883, 887 (2d Cir. 1990), citing Solina v. United States, 709 F.2d 160, 167 (2d Cir. 1983) (conviction vacated where defendant was represented by a law school graduate who twice failed the bar examination and had not become a member of any bar); People v. Felder, 47 N.Y.2d 287, 287, 293, 391 N.E.2d 1274, 418 N.Y.S.2d 295 (1979) (conviction overturned where defendant was "represented by a layman masquerading as an attorney . . . not licensed to practice law"). Thus, where a properly licensed attorney represented the defendant, there has been no per se denial of the right to counsel. U.S. v. Novak, supra, 903 F.2d 888; Solina v. United States, supra, 709 F.2d 167-68. In addition, mere technical defects in attorney licensure do not always amount to constitutional violations. U.S. v. Novak, supra, 903 F.2d 888, citing Solina v. United States, supra, 709 F.2d 167.
The defendant does not contend that article first, § 8, of the Connecticut constitution provides any greater protection than the sixth amendment to the United States constitution in regard to the right to the assistance of counsel. See State v. Greene, 52 Conn.App. 617, 635 n. 8, 727 A.2d 765, cert. denied, 248 Conn. 922, 733 A.2d 845 (1999).
In the present case, the defendant has not made any claim that Attorney Jones failed to meet the prerequisites for admission to the bar or that her license to practice law is substantively defective. Attorney Jones was formally admitted to the Connecticut bar in December 1999 and has remained a member of the bar since that time. Although under our procedural rules the failure to pay the client security fund fee results in an administrative suspension that affects the eligibility to practice law; Practice Book § 2-79; such status does not in any way implicate an attorney's qualifications to practice law or competence to provide adequate and effective representation. In fact, the suspension is lifted automatically as soon as the fee is paid. Practice Book § 2-79. The attorney does not have to be reinstated or readmitted to practice, and formal proceedings are not required — as they are in cases involving complaints of professional misconduct — to restore an attorney to his or her previous status. See Practice Book §§ 2-32 and 2-53. The failure to pay the client security fund fee is therefore merely a technical defect and not a grave substantive flaw affecting the legitimacy of an attorney's license to practice law.
See Hill v. State, supra, 393 S.W.2d 904 ("The payment of [delinquent] dues has the same effect for [an attorney] as a nunc pro tunc judgment . . . When the delinquent attorney-member pays his delinquent dues he then is restored to the status that he occupied prior to becoming delinquent").
In cases involving technical, rather than substantive, defects in attorney licensure, some courts have focused on whether the fundamental principles of due process have been violated based on the competency of counsel's representation. See, e.g., People v. Medler, 177 Cal.App.3d 927, 930-31, 223 Cal. Rptr. 401 (1986) (defendant represented by attorney suspended from the practice of law at time of trial due to failure to pay bar dues); Wilson v. People, 652 P.2d 595, 597 (Colo. 1982) (defendant represented by law school graduate who passed the bar examination but who failed to take the oath for admission to the bar), cert. denied, 459 U.S. 1218, 103 S.Ct. 1221, 75 L.Ed.2d 457; Johnson v. State, 225 Kan. 458, 465, 590 P.2d 1082 (1979) (defendant represented by attorney under suspension due to the failure to pay attorney registration fees). The defendant here, however, neither made any complaint, nor submitted any evidence, concerning the adequacy of Attorney Jones's representation. Accordingly, the court concludes that the defendant was not deprived of his constitutional right to the assistance of counsel.
CONCLUSION
Based on the foregoing, the defendant's motion for a new trial is denied.