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State v. Mendez

Court of Appeals of Connecticut

October 16, 2018

STATE OF CONNECTICUT
v.
KEZLYN MENDEZ

          Argued May 29, 2018

         Procedural History

         Information charging the defendant with the crimes of murder, felony murder, and robbery in the first degree, brought to the Superior Court in the judicial district of Hartford and tried to the jury before Mullar-key, J.; verdict of guilty of the lesser included offense of manslaughter in the first degree with a firearm, and of felony murder and robbery in the first degree; thereafter, the court vacated the verdict of guilty as to the lesser included offense of manslaughter in the first degree with a firearm; judgment of guilty of felony murder and robbery in the first degree, from which the defendant appealed; thereafter, the court, Prats, J., granted the motion for leave to withdraw an appearance filed by the defendant's court-appointed counsel. Affirmed.

          Kezlyn Mendez, self-represented, the appellant (defendant).

          James A. Killen, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Robin D. Krawczyk, senior assistant state's attorney, for the appellee (state).

          Alvord, Prescott and Pellegrino, Js.

          OPINION

          ALVORD, J.

         In this direct criminal appeal, the self-represented defendant, Kezlyn Mendez, claims that the trial court violated his right to due process by improperly granting his court-appointed appellate counsel's motion for leave to withdraw her appearance in accordance with Practice Book § 62-9 (d). We affirm the judgment of the trial court.

         Practice Book § 62-9 (d) (1) directs any appointed appellate counsel who concludes, in accordance with Practice Book § 43-34, that an appeal would be wholly frivolous to file under seal with the appellate clerk a motion for leave to withdraw his or her appearance along with a memorandum of law, commonly referred to as an Anders [1] brief, in accordance with Practice Book § 43-35. ‘‘Counsel shall deliver a notice that a motion for leave to withdraw as appointed counsel has been filed, but shall not deliver a copy of the motion and supporting . . . memorandum of law to opposing counsel of record.'' Practice Book § 62-9 (d) (2). The motion, memorandum, and the transcripts of the relevant proceedings are then referred by the appellate clerk to the trial court for a decision. Practice Book§ 62-9 (d) (3). If the trial court grants appointed appellate counsel's motion to withdraw, a copy of the court's decision is filed, under seal, with the appellate clerk, and counsel must notify his or her former client in writing of the trial court's decision, the current status of the appeal, and the defendant's responsibilities necessary to prosecute the appeal. Practice Book § 62-9 (d) (3). Section 62-9 (d) (3) further expressly provides that the trial court's decision ‘‘may be reviewed pursuant to [Practice Book §] 66-6.''

         A motion for review pursuant to Practice Book § 66-6 is the proper vehicle by which to obtain review of an order concerning the withdrawal of appointed appellate counsel after an appeal has been filed. See Practice Book § 62-9 (d) (3) (‘‘If the trial court grants the motion to withdraw, counsel shall immediately notify his or her former client, by letter, of the status of the appeal and the responsibilities necessary to prosecute the appeal. . . . The trial court's decision shall be sealed and may be reviewed pursuant to Section 66-6.'').

         In the present case, the defendant's court-appointed appellate counsel sent the defendant a letter notifying him of the court's decision granting her motion to withdraw and, as required by Practice Book § 62-9 (d) (3), provided him with instructions on how to proceed with the appeal as a self-represented party. Significantly, the instructions explained: ‘‘You can try filing a [m]otion for [r]eview of the trial court's decision on the Anders motion. ([Practice Book] § 66-6) Remember that you only have [ten] days to file this from the date of the notice of the order. If you do, remember to ask for an extension of time to file your brief until [twenty] or [thirty] days after the motion is decided.''

         The defendant did not file a motion for review, but did file an appellate brief. Although the defendant could have pursued and briefed any appellate claim he deemed meritorious regarding the underlying judgment of conviction, he raised in his appellate brief only his claim that counsel should not have been permitted to withdraw. He did so, despite the clear instructions informing him that he could file, pursuant to Practice Book § 66-6, a motion for review of the trial court's decision on appellate counsel's motion for permission to withdraw her appearance. Because the defendant did not comply with Practice Book § 62-9 (d) (3) and, instead, raised the issue in his direct appeal, we decline to review his claim. In addition, because the defendant has not raised or adequately briefed any claim that directly challenges the judgment of conviction from which he took this appeal, we deem any possible claims abandoned. See Joseph v. Commissioner of Correction, 153 Conn.App. 570, 574, 102 A.3d 714 (2014), cert. denied, 315 Conn. 911, 106 A.3d 304 (2015).

         The judgment is affirmed.

          In this opinion ...


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