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State v. Francis

Supreme Court of Connecticut

August 2, 2016

STATE OF CONNECTICUT
v.
ERNEST FRANCIS

          Argued January 26, 2016

          Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Edward R. Narus, former supervisory assistant state’s attorney, for the appellant (state).

          Christopher Duby, assigned counsel, with whom, was Robert O’Brien, assigned counsel, for the appellee (defendant).

          Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Robinson and Vertefeuille, Js. [*]

          OPINION

          PALMER, J.

         The state appeals from the judgment of the Appellate Court, which reversed the trial court’s denial of the request of the defendant, Ernest Francis, for the appointment of counsel to represent him in connection with the filing of a motion to correct an illegal sentence arising out of his 1992 conviction of murder.[1] In State v. Casiano, 282 Conn. 614, 627-28, 922 A.2d 1065 (2007), this court determined that, pursuant to General Statutes § 51-296 (a), [2] an indigent defendant has a right to the appointment of counsel for the purpose of determining whether a sound basis exists for him to file a motion to correct an illegal sentence, and, if such a basis is determined to exist, he also has the right to counsel for the purpose of pursuing the motion to its conclusion. On appeal, the state claims that the Appellate Court incorrectly concluded that the trial court was required to follow the procedure set forth in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), [3] before it properly could deny the defendant’s request for the appointment of counsel on the ground that no sound basis existed for him to file a motion to correct. We conclude that the Anders procedure is not strictly required to safeguard the defendant’s statutory right to counsel in the context of a motion to correct an illegal sentence. We further conclude, however, that the trial court improperly failed to appoint counsel to assist the defendant in determining whether there was a sound basis for him to file such a motion. Because we also conclude that this error was harmful to the defendant, the case must be remanded to the trial court so that counsel may be appointed to represent the defendant in accordance with the dictates of Casiano.

         The opinion of the Appellate Court sets forth the following undisputed facts and procedural history. ‘‘Following [his direct] appeal, [t]he defendant filed his first motion to correct an illegal sentence in 2001, in which he alleged that the sentencing court denied his right to speak in mitigation of punishment, relied on inaccurate information and failed to rely on information solely within the record. The trial court . . . denied the motion on the merits. On appeal, the Appellate Court found that the trial court lacked jurisdiction to consider the motion to correct because the defendant’s claims did not attack the validity of the sentence, and remanded the case with direction that the motion be dismissed. . . . The defendant filed a second motion to correct that was denied on the merits . . . [on] November 18, 2005. In that motion, the defendant alleged that the sentencing court improperly signed his arrest warrant and presided over his probable cause hearing. The Appellate Court summarily affirmed the [denial of the second motion to correct] . . . .’’ (Internal quotation marks omitted.) State v. Francis, 148 Conn.App. 565, 567 n.2, 86 A.3d 1059 (2014).

         Thereafter, ‘‘[t]he defendant, representing himself, filed [a third] motion to correct on July 12, 2010, and later amended it on October 12, 2010. On September 8, 2010, the date on which the [third] motion was initially scheduled for a hearing, the court, Gold, J., opened the hearing by engaging in the following colloquy with the defendant and [a] public defender, R. Bruce Lorenzen:

‘‘The Court: . . . This is [the defendant’s] third motion to correct what he alleges is an illegal sentence. Are you doing this yourself or are you applying for the public defender to review the claim?
‘‘The Defendant: I’d like to represent myself, Your Honor.
‘‘The Court: Do you understand you have the right to apply for a public defender? The public defender would, pursuant to . . . State v. Casiano, [supra, 282 Conn. 627-28] review the file. If the public defender felt that there was some potential merit to your claim, the public defender would be appointed to represent you. If the public defender said no, that [is, that] he or she didn’t think there was sufficient likelihood of success, then you could do it yourself if you wanted to. But do you want to skip that step and just represent yourself?
‘‘The Defendant: I was assuming that had happened when I first came in on . . . Casiano so we could save time. But I mean, if I-I’m going to apply for the public defender then.
‘‘[Attorney Lorenzen]: Judge-
‘‘The Court: Yes.
* * *
‘‘[Attorney Lorenzen]: [R.] Bruce Lorenzen, Public Defender’s Office. The [court] clerk had alerted us to [the defendant’s] claim. I have reviewed it. May I have just a moment?
* * *
‘‘[Attorney Lorenzen]: Judge, again, I was made aware of this case, and I’ve had an opportunity to review the motion as well as some previous files that our office has been involved in and my concern is not so much on legal merit but potentially on procedural grounds. There’s a problem in terms of us being appointed.
‘‘The Court: All right. So are you going to try to get a special [public defender]?
‘‘[Attorney Lorenzen]: It’s not a conflict situation.
‘‘The Court: It’s not a conflict. So what are you proposing?
‘‘[Attorney Lorenzen]: Judge, I really sympathize with [the defendant’s] position, and I’ve told him, there’s an emotional merit to his claim because what he cites in his petition in terms of occurrences in court, as near as I can tell, did, in fact, occur. My concern is more, as the court started this proceeding by saying, that this is ...

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