Shawn Crocker v. Warden, State Prison (2013)

MEMORANDUM OF DECISION

In this case, the court must first determine whether a public defender, suo motu, may file an appearance, for the limited purpose of moving for the appointment of a new, special public defender, on behalf of a habeas petitioner whose former special public defender was allowed to withdraw on the basis of the absence of any nonfrivolous grounds under the protocol of Anders v. California, 386 U.S. 738 (1967), and Practice Book §§ 23–41 and 23–42.   If so, the court must then address whether such a motion to appoint a special public defender ought to be granted where the court has previously concluded that no nonfrivolous basis for the habeas petition exists.

Presumably based on some conflict, at the behest of the Office of the Chief Public Defender, on March 9, 2010, a special public defender, Attorney Laljeebhai Patel, was appointed to represent the petitioner in his third habeas corpus case.   See Crocker v. Commissioner, Superior Court, Tolland J.D., d.n. CV02–815954 (March 23, 2005), Fuger, J.;   affirmed, 101 Conn.App. 133 (2007);  cert. denied, 283 Conn. 905 (2007);  and see Crocker v. Commissioner, Superior Court, Tolland, J.D., d.n. CV05–4000431 (January 26, 2009), dos Santos, J.;   affirmed, 126 Conn.App. 110 (2011);  cert. denied, 300 Conn. 919 (2011).   The latter action contained a “habeas on a habeas” claim.

Attorney Patel filed a motion to withdraw as habeas counsel because he concluded that all the putative claims which the petitioner wished to assert were meritless, and his review disclosed no other viable bases for the habeas action.   The Anders motion he filed is the proper way to address the dilemma appointed counsel encounters when, in counsel's opinion, no nonfrivolous issues are present, State v. Pascucci, 161 Conn. 382, 385 (1971), and Practice Book § 23–41.

This court granted that motion to withdraw, Crocker v. Warden, Superior Court, Tolland J.D., d.n. CV09–4003081 (December 19, 2012).   This court noted that “there [were] no nonfrivolous issues to be tried.   Accordingly ․ substitute counsel will not be appointed.”

On April 24, 2013, Attorney Temmy Ann Pieszak, Chief of Habeas Corpus Services for the Office of the Chief Public Defender, without seeking or obtaining permission from the court to do so, moved for the appointment of a different special public defender “notwithstanding” the court's ruling on the Anders motion submitted by Attorney Patel.   Attorney Pieszak's motion was preceded by her appearance on behalf of the petition “for this motion only.”

A.

Practice Book § 3–4 governs attorney's appearance in all types of cases.   Section 3–6 allows limited appearances to be filed in criminal and juvenile cases “for the sole purpose of representing the defendant at a hearing for the fixing of bail” or detention of a juvenile.   No other rule of practice permits an attorney to constrict representation by appearing for some other limited purpose.

Undoubtedly, a court has the inherent power to order such limited representation.   See e.g. State v. Morales, 121 Conn.App. 767, 771 (2010), where a trial court substituted counsel in order to address the accused's motion to withdraw a guilty plea, based on ineffective assistance of existing counsel, pursuant to Practice Book § 39–27.   The question in this case is whether a public defender can file such a restricted appearance, suo motu.

Apparently, Attorney Pieszak disputes Attorney Patel's opinion, as expressed by his Anders motion, that only frivolous issues are presented by this petitioner's third action for habeas corpus relief.   The respondent objects to this motion and argues that Attorney Pieszak lacks standing to intervene.

The court concurs with the respondent's argument.   No public defender was appointed to represent the petitioner once the Anders motion to withdraw was granted.   To the contrary, the court expressly declined to appoint substitute counsel.   However well-intentioned a public defender may be, that lawyer cannot override the court's decision on that very point and appear on the client's behalf without obtaining permission from the court beforehand.   To rule otherwise would, in effect, create the unmanageable and intolerable situation where one public defender could interfere with the decisions made by another whenever disagreements, tactical or otherwise, arose.   It is true that the particular circumstances of the present case involve a lawyer's decision to move to negate appointment in the case, but it strikes the court as the same kind of interference resulting from a strong difference of opinion.

The Habeas unit of the Public Defender's Office is not without recourse.   The Public Defender Services Commission provides the list of private attorneys whom it wants the courts to assign to indigent clients “on a contractual basis for a temporary period of time” in cases where such special assignments are appropriate, General Statutes § 51–293(a)(2).   The statute directs courts to appoint special public defenders from that list “[w]henever possible.”   If a special public defender's performance is wanting, that disappointment can be expressed to the Commission.

B.

Even if Attorney Pieszak's appearance were considered effective, the court would deny the motion to appoint a new special public defender.   The court thoroughly reviewed the potential claims and issued a decision explaining why those claims were without merit, Crocker v. Warden, supra.   The petitioner may continue to pursue his habeas claim without appointed counsel.   If his petition is denied, he can request the appointment of counsel to represent him on appeal, which appeal may include a challenge to this court's granting of the Anders motion.   The petitioner can also file an ineffective assistance case against Attorney Patel with respect to the filing of the Anders motion and ask for counsel in that habeas case.   Thus, if this court's determination on the Anders motion was legally erroneous, the petitioner has procedural avenues available where he can vindicate his claim and be represented by appointed counsel if necessary.

The motion is denied.

Sferrazza, S.J.

Sferrazza, Samuel J., S.J.