Martinez v. Warden, No. Cv 94-1884 S (Apr. 21, 1997)

1997 Conn. Super. Ct. 4714
CourtConnecticut Superior Court
DecidedApril 21, 1997
DocketNo. CV 94-1884 S
StatusUnpublished

This text of 1997 Conn. Super. Ct. 4714 (Martinez v. Warden, No. Cv 94-1884 S (Apr. 21, 1997)) is published on Counsel Stack Legal Research, covering Connecticut Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Martinez v. Warden, No. Cv 94-1884 S (Apr. 21, 1997), 1997 Conn. Super. Ct. 4714 (Colo. Ct. App. 1997).

Opinion

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION (MOTION FOR PERMISSION TO WITHDRAW APPEARANCE ASPETITIONER'S COURT-APPOINTED COUNSEL) The public defender appointed to represent the petitioner in an application for a writ of habeas corpus has moved to withdraw as counsel, on the ground that there are no non-frivolous arguments in support of the petitioner's claim.

The United States Supreme Court in Anders v. California,386 U.S. 738 (1967), and the Connecticut Supreme Court in Fredericksv. Reincke, 152 Conn. 501 (1965) and State v. Pascucci,161 Conn. 882 (1971), established the procedure to be followed in cases where appointed counsel concludes that an appeal would be wholly frivolous. If after conscientious examination of the case counsel finds that case is wholly frivolous, counsel must advise the court and request permission to withdraw. Such request must "be accompanied by a brief referring to anything that might arguably support the appeal" Pascucci, 161 Conn. At 385. A copy of the report must be furnished to the indigent client and time allowed for petitioner to raise any points in opposition to the motion. Id. This procedure is mandated by "[t]he constitutional requirement of substantial equality and fair process." Anders,386 U.S. at 744. To date, the petitioner has not responded, although the time indicated has passed.

The Court, not counsel, bears the responsibility of determining whether the case is wholly frivolous. The court must make a full examination of all the proceedings before making that decision. Anders, supra; Pascucci, supra.

The court in Anders, supra, articulated the standard by which requests to withdraw are to be judged. A conclusion that the habeas petition is unlikely to be granted, or even that it lacks merit, is insufficient. If any legal point is arguable on its merits, the petition is not frivolous, and counsel may not be permitted to withdraw. Anders, 386 U.S. at 744. The Connecticut Supreme Court has adopted this standard for motions to withdraw on appeal. Pascucci, 162 Conn. at 385-86. CT Page 4716

The United States Supreme Court has held that the Anders procedure is not required by the federal constitution when counsel seeks to withdraw from a habeas corpus case. Pennsylvaniav. Finley, 481 U.S. 551 (1987). The Connecticut Supreme Court has not decided the issue, but the Appellate Court, in Franko v.Bronson, 19 Conn. App. 686 (1989), held that Anders was applicable to appeals arising from habeas corpus cases.

The Court has reviewed the following:

1. The Habeas Corpus file;

2. Attorney Gustafson Radoff's Motion to Withdraw and accompanying "Anders" brief [Anders v. California, 386 U.S. 738 (1967)];

3. The mittimus sheets for each of Petitioner's three convictions (Appendices A, B C); and

4. Petitioner's sentencing time sheet from the Department of Corrections, (DOC). (Appendix D).

There appear to be no non-frivolous claims in this case, as indicated by Attorney Gustafson Radoff's motion and brief. Petitioner pleaded guilty in three separate files, receiving a total effective sentence of 10 years to serve. That sentence isexactly what petitioner bargained for. It is also the sentence that he says he was supposed to receive.

Petitioner claims in his Writ that the Department of Corrections has calculated his sentence at 17 years. This is simply not correct. The DOC time sheet for this petitioner shows that his sentence is 10 years, not 17 as petitioner claims. It shows his start date as 11/05/1991; and his release date as 11/4/2001. It also shows his sentence as "10Y". (Appendix D).

The next issue raised by petitioner is a request for sentence modification under CGS § 53a-39. The Habeas Court has no jurisdiction to rule on this motion. A motion to modify a sentence over three years must be directed to the Sentencing Court or Judge. The Habeas Court is not the Sentencing Court, nor is it the Sentencing Judge.

Motion to withdraw as counsel is GRANTED. CT Page 4717

It is further ordered that petitioner's Writ of Habeas Corpus is DISMISSED, since there is absolutely no basis upon which petitioner could proceed. PB § 529U. His sentence is exactly what he claims it should be, viz: 10 years. As to his request for sentence modification, the Habeas Court has no jurisdiction to entertain that request.

SO ORDERED,

Hon. Jonathan J. Kaplan Superior Court Judge

MITTIMUS JD-CR-38 Rev. 3-91 STATE OF CONNECTICUT APPENDIX A C.G.S. § 18-23, 18-63, SUPERIOR COURT 7-23-9118-65, 18-65a, 18-73, 18-76, 9-25-916418-82, 54-2a, 54-64b, TO CLERK CR L-1854-92a, 54-96b, 54-97, Prepare a separate Mittimus for each file.54-98 TO OFFICER [X] JUDGMENT Original to receiving facility; return copy to court

[ ] CONTINUANCE

[ ] FAILURE TO MEET CONDITIONS _____________________ OF RELEASE UNDER 54-2a. | DATE OF DISPOSITION | TO: Any Proper Officer | 11-05-91 _____________________________________________________|_____________________ DOCKET NO. | NAME OF DEFENDANT | DATE OF BIRTH | DATE SENTENCE TO BEGIN | | | (if different) CR-85195 | Martinez, Andre | 4-06-70 | ___________|___________________|_______________|___________________________ NAME AND LOCATION OF RECEIVING FACILITY | NAME AND LOCATION OF COURT | BCC | GA-1 _________________________________________|_________________________________ [X] CRIME(S) | FIRST | DATE OF | SECOND | DATE OF | THIRD | DATE OF CONVICTED | COUNT- | OFFENSE | COUNT- | OFFENSE | COUNT- | OFFENSE | STATUTE | | STATUTE | | STATUTE | | NO. | | NO. | | NO. | | | | | | | | 53a-32 | 5-31-91 | | | | |_________|_________|_________|_________|_________|_________ CT Page 4718 [ ] CRIME(S) | FOURTH | DATE OF | FIFTH | DATE OF | SIXTH | DATE OF CHARGED | COUNT- | OFFENSE | COUNT- | OFFENSE | COUNT- | OFFENSE | STATUTE | | STATUTE | | STATUTE | | NO. | | NO. | | NO.

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Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
Pennsylvania v. Finley
481 U.S. 551 (Supreme Court, 1987)
Fredericks v. Reincke
208 A.2d 756 (Supreme Court of Connecticut, 1965)
Franko v. Bronson
563 A.2d 1036 (Connecticut Appellate Court, 1989)

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Bluebook (online)
1997 Conn. Super. Ct. 4714, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martinez-v-warden-no-cv-94-1884-s-apr-21-1997-connsuperct-1997.