State v. Love

S
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       STATE OF CONNECTICUT v. JAMIE LOVE
                   (AC 43484)
                     Moll, Alexander and Suarez, Js.

                                 Syllabus

The defendant, who had been convicted, on a plea of guilty, of assault in
   the first degree and carrying a pistol without a permit, appealed to this
   court from the judgment of the trial court denying his motion to correct
   an illegal sentence. The defendant claimed that the trial court erred by
   failing to appoint counsel pursuant to statute (§ 51-296 (a)) and State
   v. Casiano (

282 Conn. 614

). Held that the trial court improperly denied
   the defendant’s motion to correct an illegal sentence without appointing
   counsel: the central holding of Casiano is that, pursuant to § 51-296
   (a), a self-represented defendant has the right to counsel to determine
   whether a sound basis exists for a motion to correct an illegal sentence,
   and the defendant’s specific reference to Casiano in his motion consti-
   tuted an affirmative request for counsel; accordingly, the judgment of
   the trial court denying the defendant’s motion to correct an illegal sen-
   tence was reversed and the case was remanded in order for counsel to
   be appointed in accordance with Casiano.
           Argued February 4—officially released April 6, 2021

                            Procedural History

   Substitute information charging the defendant with
the crimes of assault in the first degree, conspiracy to
commit assault in the first degree, criminal use of a
firearm, carrying a pistol without a permit, and unlawful
discharge of a firearm, brought to the Superior Court
in the judicial district of Waterbury, where the defen-
dant was presented to the court, Fasano, J., on a plea
of guilty to assault in the first degree and carrying a
pistol without a permit; judgment of guilty in accor-
dance with the plea; thereafter, the court, Hon. Roland
D. Fasano, judge trial referee, denied the defendant’s
motion to correct an illegal sentence, and the defendant
appealed to this court. Reversed; further proceedings.
  David B. Bachman, assigned counsel, for the appel-
lant (defendant).
  Sarah Hanna, senior assistant state’s attorney, with
whom, on the brief, was Maureen Platt, state’s attorney,
for the appellee (state).
                          Opinion

   ALEXANDER, J. The defendant, Jamie Love, 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 by failing to appoint counsel
pursuant to General Statutes § 51-296 (a)1 and State v.
Casiano, 

282 Conn. 614

, 

922 A.2d 1065

(2007). We agree
and, accordingly, reverse the judgment of the trial court
and remand the case for further proceedings in accor-
dance with this opinion.
   The following undisputed facts and procedural his-
tory are relevant to this appeal. On November 9, 2017,
the defendant pleaded guilty pursuant to the Alford
doctrine2 to assault in the first degree in violation of
General Statutes § 53a-59 (a) (1) and to carrying a pistol
without a permit in violation of General Statutes § 29-
35 (a). On January 31, 2018, the court imposed a total
effective sentence of eight years of incarceration fol-
lowed by ten years of special parole.
   Thereafter, on or about June 20, 2019, the defendant,
representing himself, filed a motion to correct an illegal
sentence and an accompanying memorandum of law,
arguing, inter alia, that the sentencing court was not
provided with accurate information; that he was not
given an opportunity to review the presentence investi-
gation report and therefore was unable to correct poten-
tial mistakes contained therein; and that a conflict of
interest existed between his trial counsel and the prose-
cutor. Significant for purposes of this appeal, the defen-
dant stated that his motion was made ‘‘[p]ursuant to
. . . State v. Casiano . . . .’’ On June 30, 2019, the
court, without conducting a hearing, denied the defen-
dant’s motion ‘‘[without] prejudice pending the out-
come of habeas filed by petitioner.’’
   On appeal, the defendant argues that the court
improperly denied his motion to correct an illegal sen-
tence because it did not appoint counsel pursuant to
§ 51-296 (a) to determine whether there was a ‘‘sound
basis’’ for his motion as required by State v. 

Casiano,
supra

, 

282 Conn. 627

–28. The state argues that the right
to appointed counsel under Casiano is not self-execut-
ing. The state contends that, because the defendant
made only a cursory reference to ‘‘State v. Casiano’’ in
his motion, this reference was not an affirmative request
for counsel. Although we agree with the state that the
appointment of counsel for a motion to correct an illegal
sentence is not self-executing and that a request for
counsel must be made before counsel is appointed,3 we
determine that the defendant’s reference to Casiano
in his motion constituted an affirmative request for
counsel.
  Our analysis is guided by the following legal princi-
ples. ‘‘[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 sen-
tence 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 sen-
tence 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 sen-
tencing 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, 

322
Conn. 247

, 259–60, 

140 A.3d 927

(2016).
   A review of State v. 

Casiano, supra

, 

282 Conn. 614

,
and its progeny will facilitate the resolution of this
appeal. In Casiano, our Supreme Court analyzed
whether the term ‘‘any criminal action’’ in § 51-296 (a)
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 determined that, in con-
nection 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 pur-
pose 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.’’ State v.

Casiano, supra

, 627–28.
   In State v. 

Francis, supra

, 

322 Conn. 259

, 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 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.4

Id., 268.

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

Id., 252–53.

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

Id., 255.

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

Id.
Consistent with the

holding of Casiano, our Supreme
Court in Francis outlined the following procedure to
be used in a motion to correct an illegal sentence:
‘‘[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 deter-
mines 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.’’ (Cita-
tion omitted; footnote omitted.)

Id., 267–68.

The court
concluded that the trial court’s denial of counsel to
represent the defendant constituted harmful error and
remanded the case for further proceedings.

Id., 268–70.

  In State v. White, 

182 Conn. App. 656

, 670, 

191 A.3d
172

, cert. denied, 

330 Conn. 924

, 

194 A.3d 291

(2018),
this court further outlined the role of appointed counsel
in a motion to correct an illegal sentence under Casi-
ano, and noted the dual roles of counsel in such circum-
stance. This court stated: ‘‘Perhaps the role can best
be described by requiring traditional standards of advo-
cacy in the preparatory stage, including thorough legal
and factual review of the record with an eye to devel-
oping a plausible favorable position, but also requiring
objective candor in presenting the client’s best claims
to the court and his client. A client may well not be
pleased by his attorney’s presentation of a negative
appraisal, but this tension results from the dual nature
of the role required by Casiano and Francis . . . .’’

Id.
With this background

in mind, we turn to the specific
facts at issue in the present case. The limited question
on appeal is whether the defendant’s reference to ‘‘State
v. Casiano’’ in his motion to correct an illegal sentence
constituted a request for counsel under § 51-296 (a) and
State v. 

Casiano, supra

, 

282 Conn. 614

. We conclude
that it did.
   In his motion to correct an illegal sentence the defen-
dant stated that his motion was made ‘‘[p]ursuant to
. . . State v. Casiano . . . .’’ The state argues that this
cursory reference to Casiano did not constitute a
request for counsel and could be read as supporting
only a general reference to the filing of a motion to
correct an illegal sentence. We disagree.
   The central holding of Casiano is that, pursuant to
§ 51-296 (a), a self-represented defendant has the right
to counsel to determine whether a sound basis exists
for a motion to correct an illegal sentence. State v.

Casiano, supra

, 

282 Conn. 627

; see also State v. 

Francis,
supra

, 

322 Conn. 261

. When a self-represented defen-
dant specifically refers to ‘‘State v. Casiano’’ in a motion
to correct an illegal sentence, we conclude that this
reference is sufficient to constitute an affirmative
request for counsel. 5
   In the present case, the court made no inquiry of the
defendant as to his invocation of Casiano in his motion
to correct an illegal sentence and instead summarily
disposed of the motion without holding a hearing.6 In
light of the case law set forth herein, we conclude that
the court improperly denied the motion without
appointing counsel and we remand the case so that
counsel may be appointed to represent the defendant
in accordance with Casiano.
  The judgment is reversed and the case is remanded
for further proceedings in accordance with this opinion.
      In this opinion the other judges concurred.
  1
     General Statutes § 51-296 (a) provides in relevant part: ‘‘In any criminal
action . . . the court before which the matter is pending shall, if it deter-
mines after investigation by the public defender or his office that a defendant
is indigent as defined under this chapter, designate a public defender, assis-
tant public defender or deputy assistant public defender to represent such
indigent defendant . . . .’’
   2
     See North Carolina v. Alford, 

400 U.S. 25

, 37, 

91 S. Ct. 160

, 

27 L. Ed. 2d
162

(1970).
   3
     The right to counsel in connection with the filing of a motion to correct
an illegal sentence is statutory in nature. See State v. White, 

182 Conn. App.
656

, 666, 

191 A.3d 172

, cert. denied, 

330 Conn. 924

, 

194 A.3d 291

(2018). A
defendant must affirmatively request the appointment of counsel in connec-
tion with his motion and the trial court must grant such request for the
initial inquiry of determining whether a sound basis exists for the motion.
See State v. Francis, 

322 Conn. 247

, 267, 

140 A.3d 927

(2016); State v.

Casiano, supra

, 

282 Conn. 627

–28; see also Practice Book § 44-2 (‘‘[i]n any
other situation in which a defendant is unable to obtain counsel by reason
of indigency, and is . . . statutorily entitled to the assistance of counsel,
such defendant may request the judicial authority to appoint a public
defender in accordance with Section 44-1’’ (emphasis added)).
   4
     In Francis, the defendant himself did not request counsel under Casiano.
Instead, the court, sua sponte, inquired as to whether the defendant under-
stood that he had the right to counsel under State v. 

Casiano, supra

, 

282
Conn. 627

–28. See State v. 

Francis, supra

, 

322 Conn. 252

.
   5
     The state contends that the defendant did not properly cite Casiano
because he provided no citation to the reported decision, stating only ‘‘State
v. Casiano,’’ and that this incomplete citation could not have put the court
on notice that the defendant was actually referring to State v. 

Casiano,
supra

, 

282 Conn. 614

. We find this argument unavailing given our ‘‘established
policy . . . to be solicitous of [self-represented] litigants’’; (internal quota-
tion marks omitted) State v. Cotto, 

111 Conn. App. 818

, 820, 

960 A.2d 1113

(2008); and the fact that ‘‘Casiano’’ has become a well-known shorthand
for a self-represented defendant’s right to counsel to determine whether a
sound basis exists for a motion to correct an illegal sentence.
   The state additionally argues that, because the defendant did not file an
application for appointment of counsel with his motion, the court could not
have known that the defendant intended to invoke his right to counsel. The
state contends that the ‘‘application [for appointment of counsel], or its
functional equivalent, is the only avenue by which a court can determine
. . . whether a defendant seeks to avail himself of his statutory right to
counsel . . . .’’ We disagree. An application for appointment of counsel is
not required to be attached to a motion to correct an illegal sentence to
properly notify the court that the defendant may wish to invoke his right
to counsel.
   6
     In State v. Miller, 

186 Conn. App. 654

, 659, 

200 A.3d 735

(2018), this
court held that a trial court ‘‘is not authorized to dispose summarily of a
motion to correct an illegal sentence,’’ and concluded that a hearing is
necessary before disposing of the motion. In that case, the defendant also
raised the claim that the trial court failed to protect his right to counsel
under Casiano.

Id., 655

n.1. This court did not address that claim, however,
noting that ‘‘on remand the defendant will have an opportunity to obtain
counsel from the trial court in accordance with Casiano.’’

Id., 656

n.1.

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