Opinion
DBDCV195014581S
10-02-2019
Channy Nee KHUTH v. STATE of Connecticut et al.
UNPUBLISHED OPINION
OPINION
D’Andrea, Robert A., J.
The plaintiff Channy Nee Khuth filed a motion to appoint counsel, pursuant to General Statutes § § 51-296 and 52-582, dated April 22, 2019, to represent him in his petition for a new trial based on newly discovered evidence. The defendants are the State of Connecticut State’s Attorney for the Judicial District of Danbury, the Chief State’s Attorney’s Office, and the Attorney General Office State of Connecticut.
FACTS
On November 21, 2018, the plaintiff filed a petition for a new trial, pursuant to General Statutes § § 52-270 and 52-582, and Practice Book § 42-55, regarding newly discovered "scientific" evidence, including "scientific knowledge," which he alleges includes knowledge of general scientific community and fields of scientific knowledge upon which those fields or disciplines rely. Plaintiff further alleges that § 52-582 and Senate Bill 504 allows for additional exceptions to three-year statute of limitation for petitioning for a new trial, and, in addition, allows for appointment of counsel pursuant to § 51-296. The matter was heard by the court, on two occasions, where the defendant participated on said occasions via video conferencing from the corrections center where he is serving his sentence.
By way of background, the plaintiff is a sentenced prisoner, serving a long sentence for several charges. On August 4, 2004, the plaintiff and others were involved in an attack on two young men, causing serious and long-term, if not permanent, injuries to both. In 2005, the plaintiff was convicted after trial of assault in the first degree, in violation of General Statutes § 53a-59(a)(4), conspiracy to commit assault in the first degree in violation of General Statutes § § 53a-48 and 53a-59(a)(4) and two counts of assault in the first degree as an accessory, in violation of General Statutes § 53a-8 and § 53a-59(a)(4). The plaintiff was sentenced by the trial court, Schuman, J., to a net effective sentence of thirty years’ incarceration followed by five years of probation.
LEGAL STANDARD
General Statutes § 52-270 states in pertinent part: "a) 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 as defined under this chapter, designate a public defender, assistant public defender or deputy assistant public defender to represent such indigent defendant ..." (Emphasis added.)
General Statutes § 52-582 states in pertinent part: "(a) No petition for a new trial in any civil or criminal proceeding shall be brought but within three years next after the rendition of the judgment or decree complained of, except that a petition for a new trial in a criminal proceeding based on DNA (deoxyribonucleic acid) evidence or other newly discovered evidence, as described in subsection (b) of this section, that was not discoverable or available at the time of the original trial or at the time of any previous petition under this section, may be brought at any time after the discovery or availability of such new evidence, and the court may grant the petition if the court finds that had such evidence been presented at trial, there is a reasonable likelihood there would have been a different outcome at the trial."
General Statutes § 51-291(11) provides in pertinent part: "The Chief Public Defender shall ... Maintain one or more lists of trial lawyers who may be available to represent persons in habeas corpus proceedings arising from criminal matters, or to represent juveniles in delinquency matters before the court, or to represent parents or guardians and children in child protection and family relations matters pursuant to subsection (c) of section 51-296, or to represent persons in other appropriate matters on a case by case basis, as needed, which lawyers shall be selected by a judge of the court before which the matter is to be heard." (Emphasis added.)
General Statutes § 51-293(a) provides in pertinent part: "(1) The [public defender services] commission shall appoint a public defender for each judicial district and a public defender who shall handle appellate matters ... (2) This section shall not prevent a judge of the Superior Court from appointing a Division of Public Defender Services assigned counsel on a contractual basis for a temporary period of time in an appropriate case ... Whenever possible, any such appointment shall be made from a list of attorneys provided by the commission and submitted to the court by the office of Chief Public Defender." (Emphasis added.)
General Statutes § 51-296 provides in pertinent part: "(a) 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 as defined under this chapter, designate a public defender, assistant public defender or deputy assistant public defender to represent such indigent defendant ..." (Emphasis added.)
Practice Book § 42-55 states in pertinent part: "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."
PLAINTIFF’S POSITION
The plaintiff filed a motion to appoint counsel to represent him in his petition for a new trial based on newly discovered evidence. In his petition for a new trial, the plaintiff alleges that, based on newly discovered scientific evidence and social science evidence, which recognizes that eighteen-year-old individual should be treated differently from mature adults, he is entitled to a new trial. Plaintiff claims that at the time of his trial in 2005, he was eighteen years old and there was no scientific understanding of the adolescent brain development. Since that time, within the last several years, there have been a number of scientific studies published in regard to adolescent brain development that would have been useful at the plaintiff’s criminal trial had they been available. Plaintiff further alleges, that since 2010, scientific research began to accumulate on development in the human brain beyond the age of eighteen. At the time of plaintiff’s trial, conviction, and sentencing in 2005, there was no detailed scientific evidence available regarding brain development during late adolescence, however, that has recently changed according to the plaintiff. He claims that, had this newly discovered scientific evidence been available at the time of his 2005 trial, it is more than highly likely that the outcome of his trial and sentence could have been different. Accordingly, the plaintiff requests that the court appoint counsel to represent him in a petition for new trial.
DEFENDANTS’ POSITION
The defendants contend that the plaintiff is not entitled to the appointment of counsel pursuant to the General Statutes and case law, and requests that the plaintiff be denied counsel to assist in his petition for a new trial.
ANALYSIS
Although the plaintiff did not request appointment of counsel pursuant to either General Statutes § 51-291(11) or General Statutes § 51-293(a), the court, being aware of the two additional sections which allow the superior court to appoint counsel, will, sua sponte, examine their applicability to the motion for appointment of counsel in order to have a thorough review of the plaintiff’s motion. The court will examine all the potentially applicable statutory sections. First there is General Statutes § 52-270. This statute delineates four specific type of matters that allows the court to appoint counsel: (1) In any criminal action; (2) in any habeas corpus proceeding arising from a criminal matter; (3) in any extradition proceeding; or (4) in any delinquency matter. In this section the court can appoint counsel, i.e., public defender, to represent an indigent person if appropriate. The threshold inquiry is which of the four sections of § 52-270 allows for counsel to be appointed in a petition for a new trial. All sections deal with either a criminal defendant, or a "quasi-criminal" type category. It does not permit the appointment of counsel if the matter is civil, family, or otherwise not in a criminal or "quasi-criminal" type category.
The Appellate Court has provided controlling case law regarding the proper outcome of this motion for appointment of counsel in its decision in Small v. State. 101 Conn.App. 213, 920 A.2d 1024 (2013). In Small, the petitioner filed, inter alia, a request for appointment of counsel, as an indigent petitioner for a new trial. The decision is directly on point. "The general rule is that court-appointed counsel is not available in civil proceedings. Kennedy v. Putman, 97 Conn.App. 815, 816 n.3, 905 A.2d 1280 (2006). General Statutes § 54-95(a) provides in relevant part that a criminal defendant may seek relief from a criminal conviction by filing a petition for a new trial "in the same manner and with the same effect as in civil actions ..." (Emphasis added.) A petition for a new trial is collateral to the action in which a new trial is sought. Redding v. Elfire, LLC, 98 Conn.App. 808, 818, 911 A.2d 1141 (2006). In an action on a petition for new trial, a petitioner is not a criminal defendant but rather is a civil petitioner. Seebeck v. State, 246 Conn. 514, 545, 717 A.2d 1161 (1998). A proceeding on a petition for new trial, therefore, is not a criminal action. Rather, it is a distinct proceeding that is commenced by the service of civil process and is prosecuted as a civil action. Redding v. Elfire, LLC, supra, at 818-19, 911 A.2d 1141. Id. at 217.
As to General Statutes § 52-270, the Appellate Court has, by determining that a petition for a new trial is a civil matter, eliminated the ability of this court to appoint counsel to represent an indigent petitioner in a motion for appointment of counsel in a petition for a new trial. Section 52-270 provides four clear categories that allow for the appointment of counsel, none of which are civil, therefore, it is abundantly clear that this matter does not fall within the scope of any of the four proceeding outlined in General Statutes § 52-270, thus, this court is precluded from appointing counsel as requested by the plaintiff.
Despite the petition for a new trial not being in one of the categories in General Statutes § 52-270, the inquiry does not end there. The Small decision elaborated further. "The legislature, however, has created exceptions to the general rule that court-appointed counsel is not available in civil proceedings by providing for the appointment of counsel to represent indigent parties in certain civil actions. Among those who have a statutory right to counsel in civil cases are petitioners in habeas corpus proceedings arising from criminal matters, General Statutes § 51-296(a); litigants in termination of parental rights cases, General Statutes § 45a-717(b), and proceedings on behalf of neglected, uncared for or dependent children or youths, General Statutes § 46b-135(b); and persons who might be involuntarily confined due to mental condition or for purposes of quarantine, e.g., General Statutes § § 17a-498 and 19a-221." W. Horton & K. Bartschi, Connecticut Practice Series: Connecticut Rules of Appellate Procedure (2007 Ed.) § 63-6, official commentary to 2006 amendments, p. 145. The petitioner offers no authority, nor does our research reveal any, suggesting that there is a statutory exception applicable in this case to the general rule that court-appointed counsel is not available in civil actions. Id. at 217-8.
"In addition to the foregoing, our legislature has statutorily provided that, once a trial court determines that a defendant is indigent, the court must appoint counsel (1) in any criminal action, (2) in any habeas corpus proceeding arising from a criminal matter, (3) in an extradition proceeding, or (4) in any delinquency matter. General Statutes § 51-296(a). Our appellate courts also have determined that "[i]n addition to creating a right to counsel in habeas proceedings themselves, § 51-296 creates a right to counsel in appeals therefrom. Morgan v. Commissioner of Correction, 87 Conn.App. 126, 132, 866 A.2d 649 (2005); see also Gipson v. Commissioner of Correction, 257 Conn. 632, 651-52, 778 A.2d 121 (2001). It is evident that a proceeding on a petition for a new trial does not fall within the scope of any of the proceedings enumerated in § 51-296. Accordingly, we conclude that the petitioner does not possess a statutory right to appointed counsel pursuant to § 51-296." Small at 218-9.
This court will not elaborate on the plaintiff reference to General Statutes § 52-582. The section deals with the exceptions to the three-year statute of limitation within which a petition for a new trial may be brought before the court. As this is a motion for the appointment of counsel to represent an indigent and incarcerated person in a petition for a new trial based on newly discovered evidence, there is no applicability of that statutory section to this petition.
The Small court examined the final possible claim for appointment of counsel in a petition for a new trial. "Finally, we note that the petitioner also is not constitutionally entitled to court-appointed counsel. [I]ndigent persons accused of a crime must be provided appointed counsel, Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). But the Sixth Amendment [to the United States constitution] only applies to a defendant’s trial and first appeal as of right, not to appeals afforded on a discretionary basis, collateral proceedings, or civil proceedings ... (Emphasis added.) Bourdon v. Loughren, 386 F.3d 88, 96 (2d Cir. 2004), citing Pennsylvania v. Finley, 481 U.S. 551, 555-57, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). Accordingly, we conclude that the petitioner is not entitled to court-appointed counsel in this ancillary civil action on a petition for a new trial." Small at 219. Based on the foregoing analysis of the applicable General Statutes and Appellate Court controlling case law, it is the determination of this court that the plaintiff, Channy Nee Khuth, is not statutorily or constitutionally entitled to the appointment of counsel in his petition for a new trial based on newly discovered scientific evidence case, notwithstanding his indigent and incarcerated status.
CONCLUSION
Based on the foregoing, the motion to appoint counsel is DENIED.