Wilfredo Zambrana v. Howard Ehring et al. (2012)

MEMORANDUM OF DECISION

The plaintiff in this matter is a sentenced prisoner in the custody of the commissioner of correction of the state of Connecticut.   On November 15, 2010, the plaintiff commenced this action against public defenders Howard Ehring and Sharon Friday claiming that both of them were guilty of professional negligence in their representation of him in connection with a variety of criminal charges.   The attorney general appeared on behalf of the defendants and filed a motion to dismiss the complaint on the grounds that the court lacked subject matter jurisdiction pursuant to General Statutes § 4–165, which does not permit public defenders, such as the defendants, to be sued for negligence.   That statute provides, in relevant part:

(a) No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her employment.   Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter.

(b) For the purposes of this section, (1) ‘scope of employment’ includes but is not limited to, (A) representation by an attorney appointed by the Public Defender Services Commission as a public defender, assistant public defender or deputy assistant public defender or an attorney appointed by the court as a special assistant public defender of an indigent accused or of a child on a petition of delinquency ․

Thereafter, on January 13, 2011, the plaintiff filed an amended complaint alleging that, in connection with their representation of him, the defendants acted “recklessly, wantonly and maliciously.”   Attached to the complaint was a copy of a transcript of proceedings before the Superior Court on March 2, 2010.¹

Although the defendants initially opposed the filing of the amended complaint, the defendants filed a motion to dismiss the plaintiff's amended complaint asserting lack of subject matter jurisdiction and claiming that merely adding the words “recklessly, wantonly and maliciously” did not change the essential nature of the plaintiff's claim.   In the brief filed in support of the motion to dismiss, the defendants argue that the issue is controlled by Lemoine v. McCann, 40 Conn.App. 460, cert. denied, 237 Conn. 904 (1996).   In that case, the Appellate Court considered a claim that the trial court erred in dismissing an action against a public defender based on legal malpractice allegedly committed during the course of the unsuccessful defense of the plaintiff against several criminal charges.   The plaintiff claimed that the trial court should not have dismissed his claims because he alleged that the defendant's conduct had been “wanton, reckless or malicious.”   The Appellate Court disagreed, stating:  “Our review of the complaint leads us to conclude that the plaintiff's allegations, construed in the light most favorable to the plaintiff, did not constitute allegations of ‘wanton, reckless or malicious conduct’ but, rather, constituted allegations of negligence.”  Id., 464–65.

In his first count, the plaintiff claims that “Ehring recklessly, wantonly and maliciously without regard to his duty withdrew the ‘prior pleas' of the complainant.”   The first count further alleges that defendant “Ehring recklessly, wantonly and maliciously did not protect the complainants' right to be properly put to plea again before any punishment was imposed for the crimes for which he was not legally put to plea.”  (Emphasis in the original.)   Finally, the first count alleges that the reckless, wanton and malicious actions or inactions constitute legal malpractice.

The second count makes essentially the same allegations against Friday.   In a footnote to his complaint, the plaintiff alleges that his original guilty pleas were to charges of violation of probation, possession of narcotics and assault in the third degree and he complains of being sentenced to punishment on those counts “without being put to plea on those files again.”

The transcript of court proceedings on March 2, 2010 that the plaintiff attached to his complaint clarifies the basis of his claims.   At those proceedings before the court, Nigro, J.T.R., the state was represented by Assistant State's Attorney David Applegate and the plaintiff was represented by both the defendants.   Attorney Applegate recited that the plaintiff had already entered the following pleas:  (1) admission to a violation of probation where he “owed” three years;  (2) guilty to a charge of possession of narcotics and (3) guilty to a charge of assault in the third degree.   Applegate further stated that under his plea agreement the plaintiff was to have received a “cap sentence of five years suspended after three years, three years probation.”   Applegate further stated that subsequent to his pleas, an older warrant was served on the plaintiff and he had been arrested on a new charge.   Applegate recited the terms of a new plea agreement under which the plaintiff's total effective sentence would be “twelve years suspended after six years, three years probation which will be on an assault one on a victim over the age of 60.   So, your honor can sentence him just on that.”   Applegate concluded by stating to the court “Your honor can give him three years flat on possession of narcotics and the violation of probation and one year flat on the assault in the third degree all that to run concurrent, and if I may put him to plea on the two newer files.”   After the court agreed, Applegate stated “I think he has to withdraw all prior pleas.”   Ehring then responded:  “Prior pleas withdrawn, jury election vacated on those particular files.”   The transcript reflects that the plaintiff then entered guilty pleas to assault in the third degree and assault in the first degree on a victim over the age of sixty under the Alford doctrine.

The transcript clearly shows that the state's attorney intended to put the plaintiff to plea only on “the two newer files.”   The transcript also shows that the only pleas and elections that the plaintiff was allowed to withdraw were those related to “those particular files.”   Nevertheless, the plaintiff appears to claim that his public defenders recklessly, wantonly and maliciously:  (1) allowed him to withdraw the pleas that he had entered on a prior occasion, admitting the violation of probation and pleading guilty to assault in the third degree and possession of narcotics and (2) despite the absence of any pleas to those charges, allowed a sentence to be imposed on the plaintiff.

After reviewing the transcript attached to the plaintiff's complaint, it is difficult for the court to discern any misconduct on the part of either defendant that could rise to the level of professional malpractice.   Even viewing the allegations of the complaint in a light most favorable to the plaintiff, the court cannot agree with the plaintiff that his allegations are sufficient to make out conduct sufficiently egregious to remove the defendants from the scope of the immunity provided by General Statutes § 4–165.   The defendants' motion to dismiss is accordingly granted.

David R. Tobin, J.

FOOTNOTES

FN1. On March 12, 2012, during the hearing on the defendants' motion to dismiss the plaintiff's amended complaint, the plaintiff stated that his claims against the defendants were based entirely on the court proceedings reflected on the transcript..  FN1. On March 12, 2012, during the hearing on the defendants' motion to dismiss the plaintiff's amended complaint, the plaintiff stated that his claims against the defendants were based entirely on the court proceedings reflected on the transcript.

Tobin, David R., J.