The plaintiff has appealed from the denial of his habeas corpus petition which sought to vacate his pleas of guilty to felony murder in violation of General Statutes § 53a-54c and assault in the second degree in violation of General Statutes § 53a-60 as well as his convictions of those offenses. In accordance with the terms of a sentencing recommendation agreed upon at the time the pleas were accepted, the court imposed concurrent sentences of imprisonment for not less than twenty years nor more than life on the murder charge and for not less than two and one-half nor more than five years on the assault charge. As the basis for the relief sought the plaintiff alleged (1) that he was mentally
The habeas court found "no credible evidence that [the plaintiff] did not knowingly, voluntarily and intelligently waive his right to appeal...." This finding implies a deliberate bypass of our established appellate procedure on the part of the plaintiff and would, if not clearly erroneous, preclude his resort to habeas corpus in respect to any claims which could have been raised on appeal, such as the alleged deficiencies in the court's interrogation of him prior to acceptance of the guilty plea. Turcio v. Manson, 186 Conn. 1, 3, 439 A.2d 437 (1982); McClain v. Manson, 183 Conn. 418, 433, 439 A.2d 430 (1981); Cajigas v. Warden, 179 Conn. 78, 81, 425 A.2d 571 (1979). "[T]he petitioner must allege and prove in the trial court that there has not been a deliberate bypass of the orderly procedure of a direct appeal to this court."
Such a significant protection of liberty as a right to appeal made available to all persons convicted of crimes, must be viewed as fundamental, although its basis is statutory rather than constitutional. Coppedge v. United States, 369 U.S. 438, 441, 82 S.Ct. 917, 81 L. Ed. 2d 21 (1962); Nance v. United States, 422 F.2d 590, 592 (7th Cir. 1970). In the exercise of such a right, invidious discriminations, such as between rich and poor, implicate constitutional guarantees of due process and equal protection of the laws. Douglas v. California, 372 U.S. 353, 355, 83 S.Ct. 814, 9 L. Ed. 2d 811, reh. denied, 373 U.S. 905, 83 S.Ct. 1288, 10 L. Ed. 2d 200 (1963); Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 100 L. Ed. 891 (1956). Since the state has established an appellate forum, "these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts." Rinaldi v. Yeager, 384 U.S. 305, 310, 86 S.Ct. 1497, 16 L. Ed. 2d 577 (1966); see Blackledge v. Perry, 417 U.S. 21, 25, 94 S.Ct. 2098, 40 L. Ed. 2d 628 (1974); Chaffin v. Stynchcombe, 412 U.S. 17, 24 n.11, 93 S.Ct. 1977, 36 L. Ed. 2d 714 (1973); Staton v. Warden, supra, 334.
A waiver of such a fundamental right can be found only where it is clearly established that there has been "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L. Ed. 1461 (1938); Talton v. Warden, 171 Conn. 378, 384, 370 A.2d 965 (1976). In the original statement of the "deliberate bypass" doctrine,
The evidence presented to the habeas court, consisting of the defendant's testimony and the transcripts of the proceedings in the trial court, O'Sullivan, J., when the guilty plea was accepted and sentence was imposed, does not satisfy this standard for an effective waiver of the right of appeal. The plaintiff testified that he first learned he had a right to appeal his convictions upon pleas of guilty within the preceding year as a result of a conversation with another prison inmate. On cross-examination he admitted that he had been arrested and convicted on criminal charges many
The only evidence presented by the plaintiff in support of his claim that he was mentally incompetent at the time he pleaded guilty and at the time of sentence was his own testimony that during the nineteen months of confinement which elapsed between his arrest and conviction he was receiving psychiatric treatment, including injections of some unspecified medication. He described the effect of the medication upon him: "It just spaced me out. I don't know how to explain it. I couldn't read. I couldn't lie down without my nerves jumping up and down, and I was sort of disoriented." He testified that he was not receiving any medication at the time he was sentenced but could not recall when he had received the last injection. There was no testimony of any psychiatrist nor were any records introduced to indicate the nature and extent of the plaintiff's mental problem, or the identity or effect upon him of any medication he was receiving. At the sentencing proceeding his attorney did mention to the trial court that "during a good portion of the pretrial period there were substantial questions about his competency." He said that the plaintiff had been "medicated a good deal of the time and communication between him and me was rather limited." The attorney also remarked that the plaintiff had "a good mind," was fluent in Spanish, and was intent upon using his prison time to best advantage by obtaining some education while he was confined.
The habeas court concluded that the plaintiff had not sustained his burden of proving that he was mentally incompetent at the time of plea or of sentence. The court relied upon the "clear and intelligent responses" given by the plaintiff to the interrogation which preceded acceptance of his guilty plea. With respect to competency at the sentencing proceeding, the court found no suggestion in the remarks of counsel indicating "that medication was a problem" at that time. Since the trier was not bound to credit the plaintiff's testimony, which lacked any substantial corroboration, we find no error in the conclusion that the plaintiff was not incompetent either when he pleaded or when he was sentenced.
In addition to his claim of mental incompetence, the plaintiff asserts two other grounds for vacating his guilty plea: (1) that he was under the erroneous impression that he was exposed to the death penalty on the charge of murder in violation of General Statutes § 53a-54c, our felony murder statute;
The plaintiff also testified that he had the erroneous impression that the minimum term of the indeterminate sentence he might receive could be as high as forty-five years when it actually was only twenty-seven and one-half years.
The plaintiff contends also that the obligation of the court to determine that a defendant understands "the maximum possible sentence on the charge" includes a duty to ascertain his awareness of the highest possible minimum term of an indeterminate sentence for the charge. Although such a practice is undoubtedly salutary, it is not required by the language of § 2122 which speaks only of the "maximum possible sentence on the charge" where no mandatory minimum sentence is prescribed. The fact that the rule specifies that a defendant must be informed of any mandatory minimum sentence which is applicable militates against a construction that the maximum minimum must also be specified upon the principle of inclusio unius est exclusio alterius.
Even if there were a technical noncompliance with Practice Book, 1963, § 2122 in this respect, the plaintiff would not be entitled to relief in a habeas corpus proceeding collaterally attacking his conviction without proof of actual prejudice. In United States v. Timmreck, supra, 783-85, it was held that a failure to comply with a rule of criminal procedure (Federal Rule 11) requiring advisement of any mandatory special parole term, which would require reversal upon a direct appeal, was not a sufficient defect to set aside a guilty plea in a habeas proceeding. To mount a successful collateral attack on his conviction a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on
There is no error.
In this opinion the other judges concurred.
Prior to the 1975 amendment, § 483A had provided for notification of the right to appeal "[w]hen there has been a conviction after trial or otherwise." (Emphasis added.) The 1975 amendment, which limited the duty of notification to a conviction following a trial, brought our practice into conformity with federal procedure. See Federal Rules of Criminal Procedure § 32 (a) (2). Apparently the reason for excluding convictions resulting from guilty pleas from the notification requirement was to avoid the confusion which had resulted in filing frivolous appeals by defendants who had pleaded guilty. See Advisory Committee Note to 1975 Amendment of F.R. 32 (a) (2); 3 Wright, Federal Practice and Procedure: Criminal 2d § 528 n.11.
General Statutes § 53a-35 (b) at that time provided that "[t]he maximum term of an indeterminate sentence shall be fixed by the court and specified in the sentence as follows: (1) For a class A felony, life imprisonment...."
"MR. D'AMICO: Yes, I have.
"THE COURT: Are you satisfied with Mr. Silbert's advice and assistance?
"MR. D'AMICO: Completely.
"THE COURT: Now, I would guess but I would like to know, did you discuss with him what the maximum penalty for both of those offenses is?
"MR. D'AMICO: Yes, I have, your Honor.
"THE COURT: And Mr. D'Amico, I take it that discussions have been had between your attorney and the State's Attorney about this whole matter as to whether any recommendations were made, will be made to me about what to do with you?
"MR. D'AMICO: I am under the impression, your Honor, that I will receive no more than twenty years to life.
"THE COURT: I see. And that is with regard to the homicide, the murder charge. How about the other one, the assault?
"MR. D'AMICO: The assault will run concurrent, two and a half to five years.
"THE COURT: I see. Now, are you satisfied with that particular discussion between your attorney and the State's Attorney's office?"
(1) The nature of the charge to which the plea is offered;
(2) The mandatory minimum sentence, if any;
(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
(5) The fact that he has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he has the right to be tried by a jury or a judge and that at that trial he has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.
(Adopted June 7, 1976, to take effect Oct. 1, 1976.)"
This provision is continued in our current rule, Practice Book § 711.
A. I thought that the maximum penalty was forty-five years to life."