Opinion
No. CV02 470752S
March 26, 2004
MEMORANDUM OF DECISION MOTION TO WITHDRAW APPEARANCE PURSUANT TO THE ANDERS DOCTRINE
The petitioner filed a writ of habeas corpus dated October 16, 2002, alleging that his bond was "wrongfully revoked" and that he was re-arrested "without probable cause" for an alleged violation of his post-trial release. He argues that he was not given sufficient and proper notice of an "Order" and hearing date for the revocation of his bond.
On November 25, 2002, the court appointed petitioner's counsel as a special public defender for this habeas corpus proceeding, and on November 27, 2002, counsel filed his appearance in the petitioner's behalf. Thereafter, the petitioner, acting through his counsel, filed a First Amended Petition, dated May 10, 2003 sounding in two counts, both counts alleging ineffective assistance of trial counsel. The State of Connecticut, represented by the Office of the Chief State's Attorney, thereafter filed its return in response to the amended petition.
On October 27, 2003, petitioner's attorney filed a motion to withdraw his appearance as petitioner's counsel pursuant to Practice Book § 23-41 and § 23-42. The motion states that petitioner's counsel has concluded after "conscientious investigation and analysis" that the petitioner's habeas corpus claim is without merit and, or, wholly frivolous, and therefore, counsel must so advise the court and request permission to withdraw his appearance. The petitioner has filed an objection to this motion to withdraw, said objection being dated November 3, 2003.
A hearing on the motion to withdraw appearance was held on December 3, 2003. The petitioner and petitioner's counsel were present and presented oral argument to the court. The state of Connecticut did not appear; and nor did the state have any position regarding the motion to withdraw. In addition to the pleadings and oral arguments of the petitioner and the petitioner's counsel, the court has reviewed a transcript of proceedings in the Superior Court, judicial district Litchfield, dated October 17, 2000; a signed, sworn statement of the petitioner, dated February 19, 2003 (Ex. A and Ex. B); an affidavit of Attorney Edward T. Murname, Jr., dated August 7, 2003 (Ex. D); and letter from Attorney Gary A. Mastronardi to Attorney George J. Ferria, dated August 7, 2003, discussing a grievance filed by the petitioner against Attorney Mastronardi (Ex.C).
Petitioner's counsel has filed this motion pursuant to what is referred to as the "Anders Doctrine." See Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). While a petitioner has a right to appointed counsel for his habeas appeal, Iovieno v. Commissioner, supra, 242 Conn. 701-02, the right to appointed counsel is available only where there is a non-frivolous claim. Anders v. California, supra, 386 U.S. 738, 744-45; State v. Pascucci, 161 Conn. 382, 385, 288 A.2d 408 (1971); Fredericks v. Reincke, 152 Conn. 501, 505, 208 A.2d 756 (1965).
"[I]f [appointed] counsel finds [the petitioner's] case to be wholly frivolous, after a conscientious examination of it, [counsel] should so advise the court and request permission to withdraw." Anders v. California, supra, 386 U.S. 744; State v. Pascucci, supra, 161 Conn. 385; Practice Book § 23-41. Such a request "must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal." Anders v. California, supra, 386 U.S. 744; State v. Pascucci, supra, 161 Conn. 385.
Practice Book § 23-41 sets forth the procedures for the petitioner's counsel to follow when filing a motion to withdraw as counsel:
(a) When counsel has been appointed pursuant to Section 23-26, and counsel, after conscientious investigation and examination of the case, concludes that the case is wholly frivolous, counsel shall so advise the judicial authority by filing a motion for leave to withdraw from the case.
(b) Any motion for leave to withdraw shall be filed under seal and provided to the petitioner. Counsel shall serve opposing counsel with notice that a motion for leave to withdraw has been filed, but shall not serve opposing counsel with a copy of the motion or any memorandum of law. The petitioner shall have thirty days from the date the motion is filed to respond in writing.
(c) The judicial authority may order counsel for the petitioner to file a memorandum outlining:
(1) the claims raised by the petitioner or any other potential claims apparent in the case;
(2) the efforts undertaken to investigate the factual basis and legal merit of the claim;
(3) the factual and legal basis for the conclusion that the case is wholly frivolous.
Such a Motion to Withdraw is directed to the presiding judge who must make a full examination of the record and transcripts of the prior proceedings to determine if the appeal is wholly frivolous. Franko v. Bronson, 19 Conn. App. 686, 688-89, 563 A.2d 1036 (1989); Practice Book § 23-42. "[I]f [the court] finds any of the legal points arguable on their merits (and therefore not frivolous) [the court] must, prior to decision, afford the indigent the assistance of counsel to argue the appeal." Anders v. California, supra, 386 U.S. 744; State v. Pascucci, supra, 161 Conn. 387; Practice Book § 955. If the presiding judge does not find any non-frivolous claims, he may grant counsel's Motion to Withdraw. Anders v. California, supra, 386 U.S. 744; State v. Pascucci, supra, 161 Conn. 387; Practice Book § 23-42.
Sec. 23-42, Judicial Action on Motion for Permission to Withdraw Appearance, reads as follows:
(a) If the judicial authority finds that the case is wholly without merit, it shall allow counsel to withdraw and shall consider whether the petition shall be dismissed or allowed to proceed, with the petitioner pro se. If the petition is not dismissed, the judge ruling on the motion to withdraw as counsel shall not preside at any subsequent hearing on the merits of the case.
(b) If the judicial authority concludes that the petition is not wholly without merit, it shall not allow counsel to withdraw and may direct counsel to proceed.
A summary of the pertinent facts is appropriate before addressing the legal claims raised by the motion to withdraw. A review of Attorney Murnane's affidavit, Attorney Mastronardi's letter, the petitioner's sworn statement and the court transcript reveals that the petitioner had been arrested in file numbers CR 99-98754 and CR99-98057 pending at the superior court in Litchfield. The petitioner was convicted after a trial by jury in file CR 99-98754 on narcotics charges in early July 2000, and was scheduled to be sentenced on August 11, 2000. He was represented by Attorney Mastronardi at trial. The petitioner's file CR99-98057 remained pending, and was also continued to August 11, 2000. On or about July 8, 2000, the petitioner posted bond in these files. Petitioner also became involved in bond proceedings concerning other pending criminal cases. He and his family members utilized the services of several bail bond entities. Eventually the petitioner was released from custody on July 10, 2000 pending his sentencing date of August 11, 2000.
Subsequent to his release, the Office of the Chief State's Attorney learned of irregularities in some of the petitioner's posted bonds, in that the surety who had posted the bond relating to the petitioner's conviction in CR 99-98754 had exceeded its bond authority. Attorney Mastronardi's office was notified that the court had set a hearing date of July 13, 2000, to review the petitioner's bond and his release status. Attorney Mastronardi was unable to directly contact the petitioner prior to the hearing to notify the petitioner of the petitioner's obligation to appear in court on July 13, 2000, rather than the sentencing date of August 11, 2000. Mastronardi did make contact with members of the petitioner's family, and informed them of the July 13, 2000 court hearing.
Attorney Murnane, an associate of Attorney Mastronardi, attended the hearing at the Litchfield Superior Court on July 13, 2000, and informed the court of Attorney Mastronardi's efforts to contact the petitioner on short prior notice. The court (Gill, J.) was informed by the State Attorneys Office that the surety had exceeded its authorized limit to write surety bonds. Despite the objections of petitioner's counsel, the court ordered that the hearing would proceed in the petitioner's absence and thereafter issued a "capias" in files CR 99-98754 and CR 99-98057. The court then set a new bond. Subsequently, the petitioner was arrested on files CR 99-98754 and CR 99-98057 on September 11, 2000 and charged with one count of Failure to Appear in the First Degree § 53a-172 in each file. The petitioner was sentenced on file CR 99-98754 on September 13, 2000 for the various drug charges for which he was convicted at jury trial. The charge of Failure to Appear in the First Degree in CR 99-98754 and all charges in CR 99-98057, including Failure to Appear in the First Degree, were continued to October 17, 2000.
On October 17, 2000, the petitioner appeared in court and entered pleas of guilty to Failure to Appear in the First Degree, § 53a-172 in both CR 99-98754 and CR 99-98057. All other underlying charges in CR 99-98057 were nolled. On each count of Failure to Appear in the First Degree, the petitioner was sentenced to five years incarceration to be served concurrently with each other and concurrent with the sentence that he received on September 13, 2000, in file CR 99-98754, as a result of his conviction by the jury. The petitioner is in custody as a result of all charges for which he stands convicted.
The petitioner's original pro se habeas corpus petition complained that his bond was wrongfully revoked and that he was re-arrested in files CR 99-98754 and CR 99-98057 without probable cause due to violations of conditions of his post-trial release. The amended petition filed by petitioner's present counsel, however, sounds in two counts of ineffective assistance of trial counsel. The first count alleges ineffective assistance of counsel as to Attorney Christopher Cosgrove, the public defender who represented the petitioner on October 17, 2000 when the petitioner entered pleas of guilty to the counts of Failure to Appear in the First Degree, 53a-172 in each of the above-referenced files. The petitioner claims that Cosgove failed to adequately investigate the issues surrounding the invalidity of the petitioner's bond; failed to take the charges of failure to appear to a trial; and failed to adequately advise the petitioner of the consequences of his plea, rather than going to trial. The petitioner argues that because of the actions of Cosgrove, the petitioner's pleas of guilty on October 17, 2000, were not entered knowingly, intelligently and voluntarily.
Count Two of the amended petition alleges ineffective assistance of counsel by Mastronardi, the petitioner's original trial counsel, in that the petitioner's guilty plea on October 17, 2000, in file CR 99-98754 was also not entered knowingly, voluntarily and intelligently. Petitioner alleges that Mastronardi failed to assure that the petitioner was aware that he must appear in court on July 13, 2000, regarding the irregularities with the surety bond. Petitioner further alleges that Mastronardi failed to adequately assist the petitioner and Attorney Cosgrove in the defense of the failure to appear charges.
For the purposes of this habeas proceeding, the court notes that the petitioner is only challenging his convictions for the two counts of Failure to Appear in the First Degree, 53a-172. He is not challenging his conviction by the jury in CR 99-98754.
Petitioner's present counsel met with the petitioner to review his claims. Counsel has obtained a transcript copy of the court proceedings on October 17, 2000, and copies of Attorney Mastronardi's and Attorney Cosgrove's files regarding their representation of the petitioner. Habeas counsel in reviewing these materials disagrees with the petitioner that either attorney rendered ineffective assistance of counsel to the petitioner. Mastronardi sent his associate, Attorney Murnane, to the Litchfield Superior Court on July 13, 2000, to inform the court that he was unable to contact the petitioner regarding the hastily scheduled court hearing on the surety bond. Attorney Murnane objected to the issuance of any capias or order regarding the re-arrest of the petitioner. Mastronardi informed family members of the petitioner that he needed to have the petitioner contact him. Subsequent to July 13, 2000, the petitioner spoke with Mastronardi, who advised him to appear in court to rectify the bond situation and the court's re-arrest order, but the petitioner failed to do so, despite repeated warnings by Mastronardi, which were conveyed directly to the petitioner during telephone conversations with Mastronardi.
Subsequently, the petitioner was arrested on new criminal charges on September 11, 2000, and the outstanding failure to appear charges issued by the court on July 13, 2000. The petitioner was represented by Attorney Cosgrove for the failure to appear charges and pleaded guilty to the failure to appear charges on October 17, 2000. A review of the court transcript for October 17, 2000, reveals that the petitioner's guilty pleas to the two counts of Failure to Appear in the First Degree, § 53a-172 were thoroughly canvassed by the court (DiPentima, J.), and were found to be entered voluntarily, and knowingly with the assistance of competent counsel, Attorney Cosgrove. The court additionally found that there was a factual basis for the guilty pleas. The court offered the petitioner the right to speak prior to the imposition of his sentence and the petitioner declined to do so. The court then imposed the agreed-upon sentences, pursuant to the agreed-upon plea negotiation.
The petitioner's habeas claim has asserted ineffective assistance of counsel in the underlying criminal proceedings. The right to the effective assistance of counsel is firmly grounded in the mandates of the sixth amendment to the United States constitution, the fourteenth amendment to the United States constitution, and article first, section 8, of the Connecticut constitution. The right to counsel is the right to effective assistance of counsel. State v. Mason, 186 Conn. 574, 577, CT Page 5114 442 A.2d 1335 (1982). The right to counsel, however, is the right to effective assistance and not the right to perfect representation. Commissioner of Correction v. Rodriguez, 222 Conn. 469, 478, 610 A.2d 631 (1992).
In Strickland v. Washington, 466 U.S. 668 [ 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)], "the United States Supreme Court adopted a two-part standard for evaluating claims of ineffective assistance of counsel during criminal proceedings: the defendant must show: (1) that counsel's representation fell below an objective standard of reasonableness; id., 687-88; and (2) that defense counsel's deficient performance prejudiced the defense. Id., 694." Copas v. Commissioner of Correction, 234 Conn. 139, 154, 662 A.2d 718 (1994). In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the United States Supreme Court articulated a modified prejudice standard for cases in which the conviction has resulted from a guilty plea. Copas v. Commissioner, supra at 151 "[I]n order to satisfy the prejudice requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." (Internal quotation marks omitted.) Id., 156. Connecticut has adopted the Hill-Strickland test for ineffective assistance of counsel claims in cases involving guilty pleas. Id., 152.
The petitioner has the burden of identifying the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. Strickland v. Washington, supra, 466 U.S. 690; Quintana v. Warden, 220 Conn. 1, 5, 593 A.2d 964 (1991). "The court must then determine, whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland v. Washington, supra, 690; State v. Talton, 197 Conn. 280, 297, 97 A.2d 35 (1985). Judicial scrutiny of counsel's performance must be highly deferential, and there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland v. Washington, supra, 689; Quintana v. Warden, supra, 220 Conn. 5.
Based upon the review of the record before the court concludes that the claims of ineffective assistance of counsel against Attorney Mastronardi and Attorney Cosgrove regarding their representation of the petitioner on the failure to appear charges are without merit and are totally frivolous. Additionally, the habeas claims concerning any irregularities surrounding the revocation of the petitioner's surety bond and the proceedings in the superior court at Litchfield on July 13, 2000, are moot and without merit as the petitioner has been sentenced as a result of his conviction after his jury trial. It was that underlying conviction of criminal charges at trial that was the subject of the revoked surety bond. See Jones v. Warden, 175 Conn. 147; 394 A.2d 723 (1978).
Further, the petitioner pleaded guilty to the failure to appear charges that resulted from the disputed court procedures surrounding the revocation of the petitioner's surety bond, and his guilty pleas, as noted, were thoroughly and extensively canvassed by the court. The petitioner admitted his failure to appear and did not raise any issue regarding the revocation of his bond. The proper forum to have challenged the failure to appear charges was the superior court at Litchfield.
The petitioner's bond was revoked after a hearing where he was represented by legal counsel, who was afforded an opportunity to be heard. The petitioner was afforded procedural due process. The court notes that the petitioner did not appear on his originally scheduled sentencing date of August 11, 2000, which was a date that the petitioner was notified of prior to the posting of the surety bond. His re-arrest on failure to appear charges regarding files CR 99-98754 and CR 99-98057 on September 11, 2000 resulted only because he was arrested on additional new criminal charges.
ORDER
For the reasons set forth herein, this Court finds that there are no non-frivolous issues to be tried. Thus, this Court grants the special public defender's motion to withdraw.
Furthermore, since this Court finds absolutely no merit to petitioner's claims, the Habeas Petition is hereby DISMISSED pursuant to Practice Book § 23-42(a).
The Court
By: Arnold, J.