State v. Small

***********************************************
    The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.

   All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.

   The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.
***********************************************
   STATE OF CONNECTICUT v. ANTHONY SMALL
                 (AC 43660)
                 Bright, C. J., and Cradle and Bishop, Js.

                                  Syllabus

The defendant, who had been convicted of several crimes, including capital
   felony, appealed to this court, claiming that the trial court erred in
   denying his request for the appointment of counsel to represent him on
   a motion to correct an illegal sentence that he had filed, as required by
   State v. Francis (

). After the self-represented defendant
   filed his motion, it was reviewed by B, a public defender, who thereafter
   filed a report with the trial court, stating that no sound basis existed
   for the filing of the motion. B further stated in his report that he had
   notified the defendant by letter of the reasons for that conclusion and
   that the Office of the Public Defender would not represent him in the
   hearing on the motion. The trial court thereafter rejected the defendant’s
   assertion that, as an indigent defendant, he was required to have counsel
   pursuant to Francis and denied the motion to correct. On appeal, the
   defendant claimed that his right to counsel was violated because, contrary to the requirement of Francis, B did not consult with him regarding
   the motion to correct or inform him or the court of the reasons underlying
   his conclusion that no sound basis existed for the motion. Held that
   the trial court’s denial of the defendant’s motion to correct an illegal
   sentence was reversed and the case was remanded to that court with
   direction to appoint counsel to represent the defendant to determine, in
   accordance with Francis, whether a sound basis exists for that motion;
   because B failed to inform the trial court of his reasons for concluding
   that no sound basis existed for the motion, the court was not able to
   fulfill its obligation under Francis to consider B’s reasoning, and, if
   persuaded by that reasoning, to permit B to withdraw as counsel for
   the defendant, as B’s one paragraph report simply stated that he reviewed
   the motion, determined that no sound basis existed for it and informed
   the defendant by letter of the reasons for his conclusion; moreover,
   although the defendant claimed that B was required to inform him in
   a brief of the reasons for his conclusion, Francis does not require
   counsel to file a brief but requires only that counsel inform the defendant
   orally or in writing as to the reasons for his conclusion, and this court
   had no reason to doubt B’s candor that he so informed the defendant
   in that letter.
          Argued May 11—officially released September 7, 2021

                            Procedural History

   Substitute information charging the defendant with
one count of the crime of capital felony, two counts of
the crime of felony murder and one count each of the
crimes of kidnapping in the second degree and conspiracy to commit robbery in the first degree, brought to
the Superior Court in the judicial district of Fairfield and
tried to the jury before Ford, J.; verdict and judgment
of guilty of one count of capital felony, two counts of
felony murder and one count of conspiracy to commit
robbery in the first degree, from which the defendant
appealed to the Supreme Court, which reversed the
trial court’s judgment in part and remanded the case
to that court for further proceedings; thereafter, the
court, Ford, J., resentenced the defendant; subsequently, the court, Devlin, J., denied the defendant’s
motion to correct an illegal sentence, and the defendant
appealed to this court. Appeal dismissed in part;
reversed; further proceedings.
  Anthony Small, 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).
                          Opinion

   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, 

, 

 (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, 

, 

 (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. 

, 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
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. 

, 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. 

 322 Conn. 259–60.
   Our Supreme Court first addressed the right to counsel on a motion to correct an illegal sentence in State
v. Casiano, 

, 

 (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 motion and, thereafter, for the purpose of any
direct appeal from the denial of that motion.’’ Id., 627–
28.
    Subsequently, in State v. 

,6 our Supreme Court concluded that it was harmful
error for a trial court to fail to appoint counsel to represent the defendant ‘‘even for the limited purpose of
determining whether a sound basis existed for him to
file his motion [to correct an illegal sentence].’’ In that
case, the trial court did not appoint a public defender
for the purposes of sound basis review after the defendant had filed his third motion to correct an illegal
sentence. 

. Instead, the court clerk’s office
alerted the public defender, who reviewed the motion
and reported to the court that it was his opinion that
the defendant’s motion ‘‘ ‘does not have sufficient merit
. . . .’ ’’ 

. The public defender did not
‘‘ ‘[describe] in detail to the court the substance of any
discussions with the defendant about the claims he
wished to make in his motion’ ’’; 

; nor did he
‘‘ ‘explain his findings to the defendant . . . .’ ’’ 

.
The defendant objected and requested that the public
defender state the specific grounds and reasoning on
which he had formed his conclusion. 

. The trial
court denied the request and subsequently denied the
defendant’s motion. 

 255–56.
   Thereafter, the defendant appealed to this court,
claiming, among other things, that the trial court had
violated his right to counsel under § 51-296 (a) by denying his request for counsel without adhering to the
procedure set forth in Anders v. California, 

, 

, 

 (1967). See
State v. Francis, 

, 

(2014), rev’d, 

, 

 (2016). This
court agreed with the defendant that the trial court
should have followed Anders in denying his request for
appointed counsel. Id., 569. This court reasoned that,
‘‘because the express rationale in Casiano for extending
the statutory right to counsel . . . from appeals to
motions to correct is that such motions are functionally
equivalent to appeals as vehicles for challenging the
legality of criminal sentences, [a criminal defendant’s]
right to appointed counsel on a motion to correct must
be identical to, and thus be protected by, the same
procedural safeguards [that are] used to protect [the]
right to appointed counsel on appeal.’’ Id., 584.
  Our Supreme Court disagreed and concluded 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.’’ State v.
Francis, supra, 

.
   In so concluding, our Supreme Court adhered to its
holding in Casiano that an indigent defendant has the
right to the appointment of counsel for the purpose of
determining whether a sound basis exists for the filing
of a motion to correct an illegal sentence but distinguished a proceeding on a motion to correct an illegal
sentence from that in a direct appeal. Id., 267. The court
in Francis explained that a proceeding on a ‘‘postconviction motion to correct . . . bears no resemblance
to a direct appeal in terms of the number and complexity
of issues that may be raised, [and that] fact . . . necessarily bears on the question of whether the same procedures are required to protect the right to effective assistance of counsel in both situations.’’ Id., 263. The court
reasoned: ‘‘In stark contrast [to direct appeals], the
claims that may be raised in a motion to correct an
illegal sentence are strictly limited to improprieties that
may have occurred at the sentencing stage of the proceeding.’’ Id., 264. The court concluded: ‘‘In light of the
limited and straightforward nature of the claims that
may be raised in a motion to correct, the potential
merits of such a motion will be apparent to the court
and appointed counsel from a simple review of the
sentencing record. . . . Accordingly, we can perceive
no reason why appointed counsel, having carefully
reviewed the record for possible sentencing errors in
light of governing legal principles and determined that
none exist, must then be required to file an Anders brief
identifying anything in the record that might arguably
support a countervailing view, or why the trial court
should then be required to undertake a full and independent review of the record to determine whether it agrees
with defense counsel’s assessment of the defendant’s
claimed sentencing error.’’ (Citations omitted.) Id., 265–
66.
   With those precepts in mind, our Supreme Court in
Francis outlined the following procedure to be used
when a motion to correct an illegal sentence is filed:
‘‘[W]hen an indigent defendant requests that counsel
be appointed to represent him in connection with the
filing of a motion to correct an illegal sentence, the
trial court must grant that request for the purpose of
determining whether a sound basis exists for the
motion. . . . If, after consulting with the defendant
and examining the record and relevant law, counsel
determines that no sound basis exists for the defendant
to file such a motion, he or she must inform the court
and the defendant of the reasons for that conclusion,
which can be done either in writing or orally. If the
court is persuaded by counsel’s reasoning, it should
permit counsel to withdraw and advise the defendant
of the option of proceeding as a self-represented party.’’
(Citation omitted; emphasis added; footnote omitted.)
Id., 267–68. Thus, although the procedure to be undertaken by appointed counsel and the court on a motion
to correct requires less scrutiny than that required on
a direct appeal, the court in Francis maintained certain
safeguards to ensure that the sound basis review and
determination would not be unilateral by either
appointed counsel or the court. With these principles
in mind, we turn to the defendant’s claims on appeal.
   The defendant first argues that his right to counsel
was violated because, contrary to the requirement of
Francis, Bruckmann did not consult with him regarding
his motion to correct. The defendant is correct in his
contention that such a consultation by appointed counsel is required. The defendant alleged on the record
to Judge Devlin that Bruckmann did not consult him
regarding his motion, and Bruckmann was not present
to refute the defendant’s allegation. In fact, we do not
find any support in the record that there was ever a
consultation between Bruckmann and the defendant.
   The defendant also claims that Bruckmann neither
informed him nor the court of the reasons underlying his
conclusion that no sound basis existed for his motion.
Again, the defendant correctly asserts that Francis
required Bruckmann to do so. In the ‘‘Report re: Defendant’s Motion to Correct an Illegal Sentence’’ that
Bruckmann filed with the court, he represented that he
had notified the defendant by mail of the reasons for his
conclusion that no sound basis existed for the motion to
correct. The defendant acknowledged that he received
a letter from Bruckmann but asserted that the letter
was informal and that Bruckmann was required to
inform him in a brief of the reasons for his conclusion
that no sound basis existed for his motion to correct.
Francis does not require counsel to file a brief but
requires only that counsel inform the defendant orally
or in writing. The defendant does not contend that the
letter he received from Bruckmann did not set forth
the reasons for his conclusion, and we have no reason
to doubt Bruckmann’s candor in his statement that he
so informed the defendant in that letter.
  Bruckmann did, however, fail to inform the court of
the basis for his conclusion that no sound basis existed
for the defendant’s motion to correct. Bruckmann’s
report simply stated that he had reviewed the defen-
dant’s motion, that he had determined that no sound
basis existed for that motion, and that he had informed
the defendant of the reasons for his conclusion. Bruckmann did not set forth the reasons for his conclusion.
Although, contrary to the defendant’s argument, the
court was not required, under Francis, to conduct its
own independent evaluation of the potential merits of
the defendant’s motion, it was required to consider the
reasoning for Bruckmann’s conclusion that no sound
basis existed for the defendant’s motion, and, if persuaded by that reasoning, permit Bruckmann to withdraw as counsel to the defendant. Because the court
was not made aware of that reasoning, either orally or
in writing, it was not able to fulfill its obligation to
consider it, as required by Francis.
   The appeal is dismissed with respect to the defendant’s claim that he was denied appellate counsel, the
judgment is reversed and the case is remanded with
direction to appoint counsel to represent the defendant
to determine, in accordance with the procedures set
forth in State v. Francis, supra, 

, whether
a sound basis exists for his motion to correct an illegal
sentence.
      In this opinion the other judges concurred.
  1
     The defendant also challenges the judgment of the trial court denying
his motion to correct on its merits, arguing that the court improperly concluded that the sentencing court had not relied on inaccurate information
in imposing his sentence. Because we conclude that the court erred in
failing to appoint counsel, we do not reach the defendant’s challenge to the
substance of the trial court’s denial of his motion to correct.
   The defendant also appeals from the denial of appellate counsel. We
dismiss this portion of his appeal. See State v. Jimenez, 

, 

 (2011) (‘‘Practice Book § 63-7 provides in relevant
part that [t]he sole remedy of any defendant desiring the court to review
an order concerning . . . the appointment of counsel shall be by motion
for review under [Practice Book §] 66-6. The defendant did not file a motion
for review of the court’s denial of his application for the appointment of
appellate counsel but has sought review of the ruling for the first time in
this appeal. The defendant has not availed himself of his sole remedy and
is unable to seek review in the present appeal. Accordingly, we dismiss that
portion of the appeal concerning his claim that the court improperly denied
his application for the appointment of appellate counsel.’’ (Internal quotation
marks omitted.)).
   2
     The record does not reflect that Bruckmann was present during any of
the proceedings mentioned herein.
   3
     ‘‘In Anders [v. California, 

, 

, 

 (1967)], the United States Supreme Court outlined a procedure that is
constitutionally required when, on direct appeal, appointed counsel concludes that an indigent defendant’s case is wholly frivolous and wishes to
withdraw from representation. . . . Under Anders, before appointed counsel may withdraw, he or she must provide the court and the defendant with
a brief outlining anything in the record that may support the appeal, and
the defendant must be given time to raise any additional relevant points.
. . . Thereafter, the court, having conducted its own independent review
of the entire record of the case, may allow counsel to withdraw, if it agrees
with counsel’s conclusion that the appeal is entirely without merit.’’ (Citations omitted.) State v. Francis, supra, 

 n.3.
   4
     The letter sent by Bruckmann to the defendant was not submitted to
the trial court. The first page of that letter, however, is included in the
appendix to the defendant’s brief to this court. The first page of that letter
explains the procedure by which the defendant’s motion was referred to
the public defender’s office, in addition to the legal principles applicable to
motions to correct. The record does not reflect how many pages comprised
tion in the report that he filed with the court that he had ‘‘notified the
defendant by mail’’ of his reasons for concluding that no sound basis existed
for the defendant’s motion to correct.
   5
     General Statutes § 51-296 (a) provides in relevant part: ‘‘In any criminal
action, in any habeas corpus proceeding arising from a criminal matter, in
any extradition proceeding, or in any delinquency matter, the court before
which the matter is pending shall, if it determines after investigation by the
public defender or his office that a defendant is indigent as defined under
. . . chapter [887], designate a public defender, assistant public defender
or deputy assistant public defender to represent such indigent defendant,
unless, in a misdemeanor case, at the time of the application for appointment
of counsel, the court decides to dispose of the pending charge without
subjecting the defendant to a sentence involving immediate incarceration
or a suspended sentence of incarceration with a period of probation or the
court believes that the disposition of the pending case at a later date will
not result in a sentence involving immediate incarceration or a suspended
sentence of incarceration with a period of probation and makes a statement
to that effect on the record. If it appears to the court at a later date that,
if convicted, the sentence of an indigent defendant for whom counsel has
not been appointed will involve immediate incarceration or a suspended
sentence of incarceration with a period of probation, counsel shall be
appointed prior to trial or the entry of a plea of guilty or nolo contendere.’’
   6
     State v. Francis, supra, 

, has not been overruled.