State v. Small

207 Conn.App. 349

262 A.3d 188

STATE of Connecticut

v.Anthony SMALL

AC 43660

Appellate Court of Connecticut.

Argued May 11, 2021

Officially released September 7, 2021

Anthony Small, East Hartford, self-represented, the appellant (defendant).

Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Joseph T. Corradino, state's attorney, and C. Robert Satti, Jr., supervisory assistant state's attorney, for the appellee (state).

Bright, C. J., and Cradle and Bishop, Js.

CRADLE, J.

The defendant, Anthony Small, appeals from the judgment of the trial court denying his motion to correct an illegal sentence. On appeal, the defendant claims that the court erred in failing to follow the procedures set forth by our Supreme Court in State v. Francis , 322 Conn. 247, 140 A.3d 927 (2016), when it denied his request for the appointment of counsel on his motion to correct an illegal sentence. We agree and, accordingly, reverse the judgment of the trial court.¹

The following undisputed facts and procedural history are relevant to this appeal.

In 1995, following a jury trial, the petitioner was convicted of one count of capital felony in violation of General Statutes (Rev. to 1989) § 53a-54b (8), two counts of felony murder in violation of General Statutes § 53a-54c, and one count of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (2). On appeal, our Supreme Court vacated the petitioner's conviction of capital felony and instructed the trial court to resentence the petitioner. State v. Small , 242 Conn. 93, 116, 700 A.2d 617 (1997). The trial court, Ford, J ., thereafter imposed a total effective sentence of forty-five years of incarceration.

On June 7, 2018, the defendant, representing himself, filed a motion to correct an illegal sentence. The defendant claimed that his sentence was illegal because it was based on inaccurate information. Specifically, the defendant argued that the sentencing court based his sentence on its erroneous belief that he was parole eligible. He contended that the sentencing court's "intent at sentencing was for the defendant to be released and developing in society."

On November 16, 2018, Attorney Joseph G. Bruckmann, public defender for the judicial district of Fairfield at Bridgeport, filed with the court a document entitled, "Report re: Defendant's Motion to Correct an Illegal Sentence." The report, which consisted of a single paragraph, stated: "Pursuant to State v. Francis , [supra], 322 Conn. 247, 140 A.3d 927, the undersigned has reviewed the defendant's motion to correct an illegal sentence filed on June 7, 2018, and has determined that no sound basis exists for the filing of that motion or the appeal of the trial court's denial of that motion. The undersigned has notified the defendant by mail of the reasons for that conclusion and has informed the defendant that the Office of the Public Defender will not be representing him in the hearing on this motion."

On December 5, 2018, the defendant appeared before the court, Devlin, J ., by videoconference, on his motion to correct. The court explained to the defendant: "[O]ur practice here in Bridgeport is that, when an inmate files a motion to correct [an] illegal sentence, the public defender ... reviews it to see whether or not their office is going to ... have a lawyer appointed to represent the inmate on the motion. ... [The public defender] has filed a document with the clerk's office indicating that they've reviewed your motion, and they decided not to have a lawyer represent you. And they indicated [that] they sent you a letter basically summarizing that. So ... that ... doesn't mean that your motion is denied, but it means that you have to handle it on your own."

The court then asked the defendant if he had received the letter from Bruckmann regarding his motion.² The defendant responded that he "got an unexpected letter" that "express[ed] that [the public defender's] office wouldn't be representing [him]." The defendant further explained to the court: "But I didn't ... get any Anders³ brief or anything expressing the reasons why. It was just, like, an informal letter."⁴ (Footnote added.) The defendant told the court that he would like Bruckmann to file an Anders brief. The court told the defendant: "That's not our practice in Connecticut." The court explained: "The practice in Connecticut right now is for the public defender to determine whether, in their professional judgment, the motion [to correct] has merit. And if [they] think it has merit, then it should go forward and they should have a lawyer represent the inmate. If it does not have merit, then they're not required to file an appearance. Under our current practice, they're not required to file an Anders brief. [You] can disagree with that, but that's my understanding of the law now, that they are not required to file an Anders brief."

Finally, the court summarized: "[O]ur practice is that [Attorney] Bruckmann reviews these claims. If he thinks they have merit, a lawyer represents the person.

If he doesn't think the claim has merit, and remember, this is a motion to correct [an] illegal sentence. It's a narrow ... number of grounds that can support it. If it doesn't have merit, they don't have a lawyer represent the person, and then the person has to handle the case on their own, which you really are in your case."

The court then asked the defendant if he was prepared to proceed on his motion to correct at that time, or if he wanted to continue the matter to another date to afford him further opportunity to prepare. The defendant told the court that he was not prepared to argue on that date, and that he had several exhibits that he wanted to introduce into evidence in support of his motion. After the court set a new date for the hearing on the defendant's motion to correct, the defendant asked to address "the record concerning the Anders brief," and stated that he objected "to not being able to have an Anders brief." The court assured the defendant that his objection was noted for the record.

On January 23, 2019, the court held a hearing on the defendant's motion to correct. The defendant appeared as a self-represented party. At the conclusion of that hearing, the court, Devlin, J ., advised the parties that he was going to read the materials submitted, and that he would bring the defendant back to court on February 20, 2019, when he would issue his ruling on the defendant's motion to correct. The defendant then told the court that he had one more issue that he would like to address. The defendant argued: "As an indigent defendant, I was required to have counsel. The last time [that I was in court] ... I had a videoconference, and I couldn't see who the judge was. ... Under Francis the exact same situation happened that's happened to me. In Francis , no lawyer was appointed, a neutral agent of the court went and got my claim without sitting down face-to-face and discussing what my claim would be, wrote me a letter that I thought was attorney-client privilege, hand it to the judge, said he don't think the claim has merit. He didn't file an Anders brief so I could respond and file an Anders brief and tell you that I do have merit ...." The court interjected, stating that " Francis is not our practice right now in Connecticut." The defendant continued to "object," and the court repeated, " Francis doesn't apply in Connecticut right now.... Francis has been overruled."

On February 20, 2019, the court, Devlin, J ., issued its ruling orally from the bench, finding that the sentencing court did not materially rely on inaccurate information when it imposed the defendant's sentence. The court therefore concluded that the defendant's sentence was not illegal and, accordingly, denied the defendant's motion to correct. This appeal followed.

On appeal, the defendant argues that the court erred in failing to follow the procedures set forth by our Supreme Court in State v. Francis , supra, 322 Conn. 247, 140 A.3d 927, when it denied his request for the appointment of counsel to represent him on his motion to correct. We agree.

Our analysis is guided by the following legal principles. "[I]t is axiomatic that [t]he judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner .... A motion to correct an illegal sentence constitutes a narrow exception to the general rule that, once a defendant's sentence has begun, the authority of the sentencing court to modify that sentence terminates.... Indeed, [i]n order for the court to have jurisdiction over a motion to correct an illegal sentence after the sentence has been executed, the sentencing proceeding [itself] ... must be the subject of the attack.... Therefore, the motion is directed to the sentencing court, which can entertain and resolve the challenge most expediently." (Citation omitted; internal quotation marks omitted.) State v. Francis , supra, 322 Conn. at 259–60, 140 A.3d 927.

Our Supreme Court first addressed the right to counsel on a motion to correct an illegal sentence in State v. Casiano , 282 Conn. 614, 619, 922 A.2d 1065 (2007). In Casiano , our Supreme Court analyzed whether the term "any criminal action" in General Statutes § 51-296 (a)⁵ encompassed a motion to correct an illegal sentence and, thus, whether the appointment of counsel was required for indigent defendants with respect to such motions. Our Supreme Court held that, in connection with a motion to correct an illegal sentence filed pursuant to Practice Book § 43-22, "a defendant has a right to the appointment of counsel for the purpose of determining whether a defendant who wishes to file such a motion has a sound basis for doing so. If appointed counsel determines that such a basis exists, the defendant also has the right to the assistance of such counsel for the purpose of preparing and filing such a...