Opinion
No. CV 05 4000481
December 7, 2007
RULING ON MOTION TO DISMISS
The petitioner has brought an amended habeas corpus petition alleging that his incarceration is illegal because his conviction rests upon the deprivation of his constitutional right to the effective assistance of counsel under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution.
Pursuant to Practice Book § 23-29(1), the respondent seeks to dismiss count two of the amended petition. The respondent asserts that the habeas court lacks subject matter jurisdiction to hear the petitioner's claim set forth in count two of the amended petition. Specifically, the respondent argues that the petitioner has no cognizable claim of ineffective assistance of counsel in connection with his petition for a new trial because there is no absolute right to counsel in that proceeding.
The motion to dismiss was heard by the court on August 18, 2007. No witnesses were called by either party. Based on the court's review of the motion to dismiss and the objection thereto, the court grants the respondent's motion to dismiss count two of the amended petition.
FINDINGS OF FACTS
In October 1996, the petitioner was convicted by a jury of murder in violation of General Statutes § 53a-54a, carrying a pistol without a permit in violation of § 29-35 and altering or removing an identification mark on a pistol in violation of § 29-36. The Connecticut Supreme Court affirmed the convictions on the first and second counts, and reversed on the third count. State v. Francis, 246 Conn. 339 (1998).
The petitioner appealed directly to the Connecticut Supreme Court pursuant to General Statues § 51-199(b).
On March 19, 2007, the petitioner filed an amended habeas petition alleging ineffective assistance of counsel in three separate counts. On May 2, 2007, the court (Fuger, J.) sua sponte dismissed count one of the petition.
At issue in the instant motion to dismiss is count two of the amended petition. There, the petitioner claims that attorney Frank Cannatelli did not timely file a petition for a new trial based on newly discovered evidence despite having been retained by the petitioner many months in advance. In response to the untimely filing, the state filed a motion to strike on the ground that the petition for a new trial was filed outside of the applicable statute of limitations. The petitioner asserts that Cannatelli failed to appear at the September 5, 2000, hearing on the state's motion to strike and that, as a result, the motion to strike was granted and the petition for a new trial was dismissed by the trial court. The petitioner further asserts that although Cannatelli appealed the trial court's ruling, he failed to obtain the proper certification to appeal. A hearing before the Appellate Court was held on March 20, 2001, concerning whether the petitioner's appeal should be dismissed for lack of a final judgment and failure to obtain certification to appeal. The petitioner alleges that Cannatelli failed to attend the hearing. The petitioner's appeal was subsequently dismissed on March 21, 2000.
Book § 42-55 provides: "A request for a new trial on the ground of newly discovered evidence shall be called a petition for a new trial and shall be brought in accordance with General Statutes § 52-270. The judicial authority may grant the petition even though an appeal is pending."
DISCUSSION
"Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . Indeed, [i]t is axiomatic that once the issue of subject matter jurisdiction is raised, it must be immediately acted upon by the court." (Internal quotation marks omitted.) Ajadi v. Commissioner of Correction, 280 Conn. 514, 533 (2006). "The scope of relief available through a petition for habeas corpus is limited. In order to invoke the trial court's subject matter jurisdiction in a habeas action, a petitioner must allege that he is illegally confined or has been deprived of his liberty. [The Connecticut] Supreme Court found that `[t]he writ of habeas corpus, as it is employed in the twentieth century, however, does not focus solely upon a direct attack on the underlying judgment or upon release from confinement;' Lozada v. Warden, 223 Conn. 834, 841, 613 A.2d 818 (1992); but is available as a remedy for issues of fundamental fairness implicating constitutional rights. Id., 840 . . . [The Appellate Court] has similarly recognized that `the well established precepts of illegal detention and deprivation of constitutional rights remain the touchstones of [habeas corpus] jurisdiction.' Vincenzo v. Warden, 26 Conn.App. 132, 138 n. 4, 599 A.2d 31 (1991)." (Citation omitted; internal quotation marks omitted.) Santiago v. Commissioner of Correction, 39 Conn.App. 674, 679 (1995).
The petitioner claims that attorney Cannatelli was ineffective because he failed to timely file a petition for a new trial. The respondent argues that there is no statutory or constitutional right to counsel in connection with a petition for a new trial, thus the habeas court lacks subject matter jurisdiction to hear the petitioner's ineffective assistance claim.
The petitioner concedes that, pursuant to the Appellate Court's recent decision in Small v. State, 101 Conn.App. 213, cert. granted, 283 Conn. 913 (2007), there is no right to appointed counsel with respect to a petition for a new trial under General Statues § 51-296(a) or the sixth amendment to the United States constitution. The petitioner asserts, however, that there is such a right under article first, § 8, of the Connecticut constitution.
In the underlying criminal matter at issue here, the petitioner had retained, not appointed, counsel. The constitutional right to the effective assistance of counsel applies equally to retained and appointed counsel. Thus, although the holding in Small v. State, supra, was directed specifically at appointed counsel for indigent defendants, it is nevertheless applicable to the petitioner's case.
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 . . . designate a public defender, assistant public defender or deputy assistance public defender to represent such indigent defendant."
In Small, the Appellate Court did not address the state constitutional issue because the petitioner failed to provide a basis for it to do so. Small v. State, supra, 101 Conn.App. 219 n. 4.
"It is well established that federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights." (Internal quotation marks omitted.) Contr. Supply of Waterbury v. Comm. of Env. Protec., 283 Conn. 86, 98-99 (2007). Although courts "often rely on the United States Supreme Court's interpretation of the amendments to the constitution of the United States to delineate the boundaries of the protections provided by the constitution of Connecticut, [the Connecticut Supreme Court has] also recognized that, in some instances, [the Connecticut] constitution provides protections beyond those provided by the federal constitution, as that document has been interpreted by the United States Supreme Court." (Internal quotation marks omitted.) Id.
The analytical framework used to determine whether, in any given case, the Connecticut constitution affords broader protection than the federal constitutional minimum is well established. Id. In State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992), the Connecticut Supreme Court specified six factors to be considered in analyzing the issue: (1) the text of the relevant constitutional provision; (2) related Connecticut precedents; (3) persuasive relevant federal precedents; (4) persuasive precedents of other state courts; (5) historical insights into the intent of our constitutional forebears' and (6) contemporary understandings of applicable economic and sociological norms, in other words, relevant public policies. Contr. Supply of Waterbury v. Comm. of Env. Protec., supra, 283 Conn. 98-99.
I. Constitutional Text CT Page 21143
"Article first, § 8, of the Connecticut constitution, which is textually similar to the sixth amendment of the federal constitution, provides in relevant part that `[i]n all criminal prosecutions, the accused shall have the right to be heard by himself and by counsel . . .'" State v. Piorkowski, 243 Conn. 205, 215 (1997). The Appellate Court in Small v. State, supra, 101 Conn.App. 213, determined that there is no right to counsel in connection with a petition for a new trial under the federal constitution; however, the Connecticut constitution can provide greater protections than the federal right to counsel under the sixth amendment. Thus, although the text of the two constitutional provisions may be similar, that similarity does not weigh against the petitioner's claim.The plain language of the text clearly states that the right to counsel exists "[i]n all criminal prosecutions . . ." The phrase "criminal prosecutions" does not only refer to criminal trials. Under article first, § 8, of the Connecticut constitution, a criminal defendant is constitutionally entitled to competent counsel at all critical stages of criminal proceedings. Copas v. Commissioner of Correction, 234 Conn. 139, 153-54 (1995). The question is, then, whether a petition for a new criminal trial is a "critical stage" in criminal proceedings.
II. Connecticut Precedent
To determine whether a petition for a new trial is a "critical stage," the court must consider the nature of the action. A petition for a new trial is a civil action, and although a petitioner may bring the action to obtain a new criminal trial, he is not a criminal defendant for the purposes of the proceeding. Seebeck v. State, 246 Conn. 514, 545, 717 A.2d 1161 (1998). In addition to being a civil action, "[a] petition for a new trial is collateral to the action in which the new trial is sought, and by its nature is a distinct and separate proceeding. State v. Asherman, 180 Conn. 141, 144, 429 A.2d 810 (1980)." Redding v. Elfire LLC, 98 Conn.App. 808, 818 (2006).
Based on the foregoing, it would be difficult for this court for characterize a petition for a new trial as a critical stage in the criminal proceedings.
III. Relevant Federal Precedents
It is clear that under the sixth amendment, criminal defendants do not have a right to counsel on "appeals afforded on a discretionary basis, collateral proceedings, or civil proceedings." Bourdon v. Loughren, CT Page 21144 386 F.3d 88, 96 (2d Cir. 2004), citing, Pennsylvania v. Finley, 481 U.S. 551, 555-57 (1987). The federal appellate courts have expounded upon that basic rule and made a significant distinction concerning when the right to counsel attaches in connection with a motion for a new trial. "A post-conviction, pre-appeal [motion for new trial] is considered part of a defendant's direct appeal, and [therefore] the [s]ixth [a]mendment right to counsel attaches. See, e.g. Kitchen v. United States, 227 F.3d 1014, 1019 (7th Cir. 2000) (`[I]t is wide of the mark to label a pre-appeal motion for a new trial as a collateral attack.'). However, a post-conviction, post-appeal [new trial] motion is considered a collateral challenge to which the [s]ixth [a]mendment right to counsel does not attach. See Mayo v. Cockrell, 287 F.3d 336, 339 (5th Cir. 2002) (`Several federal courts of appeals have held that there is no constitutional right to counsel for post-appeal motions for new trial.'), cert. denied, 537 U.S. 975, 123 S.Ct. 443, 154 L.Ed.2d 332 (2002); Trenkler v. United States, 268 F.3d 16, 20 (1st Cir. 2001) (noting post-conviction, post-appeal [new trial] motions are collateral and that a criminal defendant has no [s]ixth [a]mendment right to an attorney in such a proceeding); Johnson v. United States, 246 F.3d 655, 658 (6th Cir. 2001) (`[A] delayed [new trial] motion is a collateral challenge separate from the direct appeal.')." (Emphasis added.) United States v. Berger, 375 F.3d 1223, 1226-27 (11th Cir. 2004).
Federal Rule of Criminal Procedure 33 allows a court, upon motion of a defendant, to grant a new trial to that defendant if required in the interest of justice. The motion may be based, inter alia, on newly discovered evidence. Fed.R.Crim.P. 33 (2005).
The petitioner's direct appeal was argued on May 27, 1998, and officially released on August 18, 1998. The petition for a new trial was filed in January 2000, long after the completion of the petitioner's appeal. In the amended petition, the petitioner states that attorney Cannatelli missed the statute of limitations for filing the petition for a new trial "by less than one month, despite the fact that he had been retained many months prior to that time." It is not specific in the amended petition as to what time, prior to the close of the limitation period, the petitioner expected Cannatelli to file the new trial petition. Due to the fact that Cannatelli was retained only months before the statute of limitations had run, however, this court does not read the amended petition to allege that the petition for a new trial was meant to be filed prior to the petitioner's direct appeal. Consequently, the federal precedents recognizing a right to counsel in pre-appeal, and therefore non-collateral, proceedings on a motion for a new trial are not helpful to the petitioner in this case.
IV. Relevant State Court Precedents
As the petitioner conceded in his objection to the respondent's motion to dismiss, other states have found no state constitutional right to counsel in connection with a motion for a new trial. See, e.g., CT Page 21145 State v. Hall, 154 N.H. 180, 182-85 (2006) ("given the defendant's less than substantial liberty interest, the low risk of an erroneous deprivation of that interest, and the government's interest in avoiding a fiscal and administrative burden, due process does not require counsel to be appointed to assist a defendant making a post-conviction motion for a new trial."); Commonwealth v. Conceicao, 388 Mass. 255, 259-63 (1983) (no absolute right under Massachusetts constitution to appointed counsel in preparing or presenting a motion for a new trial).
Consequently, none of the cases from Connecticut's sister jurisdictions provide support for the petitioner's claim that a right to counsel exists in connection with a petition for a new trial under the state constitution.
V. Historical Insights
The next Geisler factor directs the court to look at the history of article first, § 8, of the Connecticut constitution to help ascertain the meaning of that section. "This state has had a long history of recognizing the significance of the right to counsel, even before that right attained federal constitutional importance . . .
"When the customary right to counsel was formally incorporated into the Connecticut constitution in 1818, the advice and services of counsel were regarded as crucial to a criminal defendant at any time, especially given the inability of a defendant to testify in Connecticut in 1818 . . . More contemporary developments suggest that this state's commitment to securing the right to counsel has not diminished since 1818. Not only was Connecticut the first state to adopt the public defender system . . . but the right to counsel was secured to criminal defendants in this state long before the mandate of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 [(1962) (holding that the fourteenth amendment incorporated the sixth amendment right to counsel)] . . . The United States Supreme Court has turned to the historical experience of Connecticut in expanding the right to counsel under the federal constitution. Faretta v. California, 422 U.S. 806, 827, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Powell v. Alabama, [ 287 U.S. 45, 62-63, 53 S.Ct. 55, 77 L.Ed. 158 (1932)]." (Citations omitted; internal quotation marks omitted.) State v. Stoddard, 206 Conn. 157, 164-64 (1988).
Throughout its history, Connecticut has had an expansive interpretation of the right to counsel. That fact notwithstanding, this court cannot conclude, with due consideration given to prevailing Connecticut case law, that the drafters of the state constitution intended a right to counsel in connection with a collateral proceeding such as a petition for a new trial. A right to counsel, however, could be granted as an extension of legislative grace.
The legislature has created exceptions to the general rule that appointed counsel is not available in civil proceedings. General Statutes § 51-296(a). As stated above, in Small v. State, supra, the Appellate Court determined that the exceptions enumerated in § 51-296(a) do not include the right to counsel for a petition for a new trial. This holding, however, may be inconsistent with the Connecticut Supreme Court's decision in State v. Casiano, 282 Conn. 614 (2007), which was released at approximately the same time as Small. Indeed, certification to the Supreme Court has been granted in Small to answer that very question.
See footnote 4 of this decision for the statutory language of § 51-296(a).
Small v. State, supra, 101 Conn.App. 213, was considered on December 13, 2006 and officially released on May 15, 2007. State v. Casiano, supra, 282 Conn. 614, was argued on March 9, 2007, and officially released on May 29, 2007.
Small v. State, 283 Conn. 913 (2007).
VI. Relevant Public Policies
The final Geisler factor directs this court to focus on policy considerations. State v. Stenner, 281 Conn. 742, 762 (2007). The petitioner failed to provide this court with any policy arguments in support of his position.
A petition for a new trial based on newly discovered evidence is "designed to remedy errors and to correct injustices;" Wojculewicz v. State, 142 Conn. 676, 678 (1955); which implicate the reliability of the defendant's conviction. Habeas corpus proceedings arising out of a criminal matter serve the same purpose, particularly when the habeas petition involves a claim of actual innocence. Thus, underlying both proceedings is the interest of society to have correct and just convictions. Despite the fact that a habeas corpus action is a civil proceeding, an indigent petitioner does have the right to counsel for habeas proceedings and appeals therefrom. That right, however, was created by statute. General Statutes § 51-296(a); see also Morgan v. Commissioner of Correction, 87 Conn.App. 126, 132 (2005). If a defendant is entitled to the assistance of counsel to challenge his conviction with newly discovered evidence via a petition for habeas corpus, it follows that the same right to counsel could also exist in connection with a petition for a new trial arising out of a criminal matter. That right, however, would be born from the General Statutes, rather than the state constitution.
Like a petition for a new trial, a habeas claim of actual innocence must be supported by newly discovered evidence. Clarke v. Commissioner of Correction, 43 Conn.App. 374, 379, 682 A.2d 618 (1996), appeal dismissed, 249 Conn. 350, 358, 732 A.2d 754 (1999).
CONCLUSION
Based on the foregoing analysis, this court finds that there is no state constitutional right to counsel in connection with a petition for a new trial. Consequently, the motion to dismiss the petition is granted and the objection to the motion is overruled.
Upon review of Small v. State, supra, 101 Conn.App. 213, if the Connecticut Supreme Court finds a statutory right to counsel with respect to a petition for a new trial, the petitioner will not be barred from raising his ineffective assistance claim on that basis.