State v. Brooks

STATE of Connecticut v. Anthony E. BROOKS, Jr.

No. U04WCR1504433503S

Superior Court of Connecticut, Judicial District of Waterbury, Waterbury

June 29, 2018

UNPUBLISHED OPINION

Jon M Alander, Judge of the Superior Court

I BACKGROUND

This matter arises from the criminal appeal of the defendant, Anthony E. Brooks Jr. Following the defendant’s jury trial before the Superior Court, Murphy, J., in the Judicial District of Waterbury, the defendant was convicted of criminal possession of a firearm in violation of General Statutes § 53a-217(a), criminal possession of ammunition in violation of General Statutes § 53a-217(a), carrying a pistol without a permit in violation of General Statutes § 29-35(a), illegal transfer of a firearm in violation of General Statutes § 29-33(b), illegal possession of a weapon in a motor vehicle in violation of General Statutes § 29-38(a), and interfering with an officer in violation of General Statutes § 53a-167a. He was sentenced to fifteen years’ incarceration, suspended after ten years, three years of which was a mandatory minimum sentence, and three years’ probation. The defendant’s appeal was filed on May 9, 2017. The defendant was assigned Attorney S. Max Simmons as appellate counsel on September 11, 2017.

On November 14, 2017, Attorney Simmons moved to withdraw as appellate counsel claiming no non-frivolous issues exist on which to appeal. On February 14, 2018, this court directed counsel to brief the issue of whether the defendant could have legally been convicted under § 29-33(b), given that no evidence was submitted at trial that he purchased the pistol at issue or that it was delivered or transferred to him by another person. Rather, the only evidence was that he merely possessed it at the time of his arrest. Attorney Simmons filed a supplemental brief addressing this issue on March 28, 2018, and contends that there is no argument to be made on the merits that criminal liability under § 29-33(b) requires more than mere possession. After consideration, this court disagrees and finds that a non-frivolous appealable issue exists, but, nonetheless, pursuant to Practice Book § 43-37, allows counsel to withdraw and refers this matter to the Office of the Chief Public Defender for the appointment of new appellate counsel.

II DISCUSSION

Appointed counsel on appeal from a criminal matter must represent his client unless such an appeal would be frivolous, whereupon he may withdraw upon motion and a proper determination by the court. "[I]f counsel finds [the appellant’s] case to be wholly frivolous ... he should so advise the court and request permission to withdraw." Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Pascucci, 161 Conn. 382, 385, 288 A.2d 408 (1971); Practice Book § 43-35. Practice Book § 43-34 provides in relevant part: "When the defendant ... has counsel appointed to prosecute the appeal under the provisions of Section 43-33 and such public defender or counsel, after a conscientious examination of the case, finds that such an appeal would be wholly frivolous, counsel shall advise the presiding judge by filing a motion for leave to withdraw from the case." Such a motion "must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal." Anders v. California, supra, 744; State v. Pascucci, supra, 385; Practice Book § 23-41(b). A copy of such brief must be provided to the client and a reasonable time given for the client to respond. State v. Pascucci, supra, 385; Practice Book § 43-35. The court "then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous." Anders v. California, supra, 744; State v. Pascucci, supra, 385. If the court so finds, it may grant counsel’s request to withdraw. Anders v. California, supra, 744; State v. Pascucci, supra, 385; Practice Book § 43-36. If the court finds, however, that any of the legal points are arguable on the merits and, therefore, not frivolous, the court must afford an indigent defendant the assistance of counsel. Anders v. California, supra, 386 U.S. at 744; Practice Book § 43-37.

General Statutes § 29-33(b) provides in relevant part: "[N]o person may purchase or receive any pistol or revolver unless such person holds a valid permit to carry a pistol or revolver issued pursuant to subsection (b) of section 29-28, a valid permit to sell at retail a pistol or revolver issued pursuant to subsection (a) of section 29-28 or a valid eligibility certificate for a pistol or revolver issued pursuant to section 29-36f or is a federal marshal, parole officer or peace officer." (Emphasis added.)

The dispositive issue in this matter is whether the word "receive" within § 29-33(b) is susceptible of a definition that requires more than simple possession, that is whether some form of transaction or transfer must be involved. Attorney Simmons contends that the word "receive," in light of how it is defined in other statutes, and according to a proffered dictionary definition, must be read to mean mere possession. For the reasons to follow, the court finds that a cogent argument can be made that the plain language of § 29-33(b), when read in context, supports an interpretation that the term "receive" requires a transaction or transfer of some kind, and concludes that an appeal raising such a claim is not frivolous.

The resolution of this matter requires the court to interpret § 29-33. "In construing a statute, the first objective is to ascertain the intent of the legislature ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of the case, including the question of whether the language actually does apply ... General Statutes § 1-2z directs this court to first consider the text of the statute and its relationship to other statutes to determine its meaning. Only if we determine that the statute is not plain and unambiguous and yields absurd or unworkable results may we consider extratextual evidence of its meaning, such as the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common-law principles governing the same general subject matter ... The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation ... We presume that the legislature did not intend to enact meaningless provisions ... [S]tatutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant ..." (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Ward, 306 Conn. 698, 707-08, 52 A.3d 591 (2012).

Additionally, "[w]hen the statute being construed is a criminal statute, it must be construed strictly against the state and in favor of the accused ... [C]riminal statutes [thus] are not to be read more broadly than their language plainly requires and ambiguities are ordinarily resolved in favor of the defendant ... Rather, penal statutes are to be construed strictly and not extended by implication to create liability which no language of the act purports to create ... Further, if, after interpreting a penal provision, there remains any ambiguity regarding the legislature’s intent, the rule of lenity applies. It is a fundamental tenet of our law to resolve doubts in the enforcement of a Penal Code against the imposition of a harsher punishment." (Citations omitted; internal quotation marks omitted.) Id., 708-09.

It should also be noted that, in construing 29-33(b), the court is "guided by the principle that the legislature is always presumed to have created a harmonious and consistent body of law ... [T]his tenet of statutory construction ... requires us to read statutes together when they relate to the same subject matter ... Accordingly, [i]n determining the meaning of a statute ... we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction." (Citation omitted; internal quotation marks omitted.) Wiseman v. Armstrong, 269 Conn. 802, 814, 850 A.2d 114, 121 (2004).

Section § 29-33(b) provides that "no person may purchase or receive any pistol or revolver" without the proper certificates or accreditation. The word "receive" is not defined anywhere within Title 29. While it is defined in General Statutes § 53a-118(a)(6)^[1] and General Statutes § 53a-128a(f),^[2] these definitions are not necessarily indicative of how the legislature intended this term to read within § 29-33(b). Indeed, both of those statutes carry express limitations on the applicability of their definitions. Section § 53a-118(a) specifically provides "the following definitions are applicable to this part ..." (Emphasis added.) Similarly, § 53a-128a provides an itemization limiting the application of the definitions contained therein to "this section and sections 53a-128b to 53a-128i, inclusive ..."

As the application of these definitions is expressly limited neither of them are probative of what the term "receive" means as used in § 29-33(b). "Unless there is evidence to the contrary, statutory itemization indicates that the legislature intended the list to be exclusive." (Footnote omitted; internal quotation marks omitted.) Commissioner of Environmental Protection v. Mellon, 286 Conn. 687, 693, 945 A.2d 464 (2008). Thus, definitions located in statutes found within another title, which were presumably enacted for different purposes, do not aid the court in interpreting the meaning of the term "receive" as it is used in § 29-33. See, e.g., Republican Party of...