State of Connecticut v. Richard Koslik (2013)

MOTION TO WITHDRAW AS COUNSEL and COURT'S FINDINGS and WRITTEN MEMORANDUM OF DECISION

(The Court entered, and the proceedings commenced as follows:)

THE MARSHAL:  This Court is back in session with the Honorable Judge Richard Dyer presiding.

Good afternoon, Your Honor.

THE COURT:  Good afternoon.

MR. BLACK:  Good afternoon, Your Honor.

THE MARSHAL:  Please be seated.

THE COURT:  All right.   We are here today on the matter—on the matters of State v. Koslik.

Let me just note for the record that this hearing on motions to withdraw as counsel was set down for last Friday.   It became very clear towards the end of last week that we were going to have a very large storm, and courts were closed last Friday;  and, I believe, prior to the closure last Friday, I think on Thursday, but we will have our courtroom clerk give a recitation in a moment, the matter was continued for today's purposes.   And everyone can address that from their point of view.

Would everyone starting with Attorney Black please identify for the record.

MR. BLACK:  Attorney Alan Black for Mr. Koslik.   Thank you, Your Honor.

THE COURT:  Hello.

MR. BLACK:  Hello.

MR. RUBIN:  Good afternoon, Your Honor.   Joseph Rubin, R-u-b-i-n.   I'm associate attorney general and special assistant state's attorney here on behalf of the state.

THE COURT:  Hello.

MR. PATEL:  Attorney Patel.   I was one of the pre lawyers.

THE COURT:  Hello.

MR. PATEL:  And I would really, Your Honor, like to get out of this, please.

THE COURT:  Well, I don't think I have your motions in front of me but welcome.

Hello.

MR. ZELDIS:  I'm Attorney Martin Zeldis.   I'm from the Office of the Chief Public Defender.

THE COURT:  Thank you.

Now, Mr. Koslik is not here?

MR. BLACK:  Yes. And I'll address the issue of notice when you are ready to do that.

THE COURT:  Sure. Let me just ask the clerk.

What do you have in the file, Madame Clerk, in terms of notice?

THE CLERK:  I have that Deputy Chief Clerk, Maria Reed–Cook, sent a notice via U.S. Postal Service to Mr. Koslik.

THE COURT:  What date?

THE CLERK:  On Thursday, the 7th.

THE COURT:  And what address;  do you know what that went to?

Is there any indication?

THE CLERK:  The address we have on file, at 72 East Allenridge, Springfield, Mass.

THE COURT:  All right.   Thank you.

And that went out last Thursday telling him that the case had been continued today?

THE CLERK:  Correct.

THE COURT:  The record may reflect that today is February 15, and it's about 2:18.

Attorney Black, please.

MR. BLACK:  This case was on in New Britain yesterday for the same motion that I filed there, and we contacted—our office contacted directly Mr. Koslik and talked to him.

THE COURT:  You spoke to him?

MR. BLACK:  Oh, yeah.   Well, I should say, my paralegal did.

THE COURT:  Sure. And when was that, sir?

MR. BLACK:  She spoke to him on Tuesday—the 12th, yes— and on the 6th.

Now the 6th was before the storm, but she talked to him on the 6th to let him know about the first date and about the New Britain date;  and then on the 12th she called again to remind him about the New Britain day and to tell him about this date, and he acknowledged the call and hung up.   And he did not come yesterday, and I don't see him here today.

THE COURT:  All right.   He's not here.   It's about almost 2:20.

Let me just ask this:  On your motion for leave to withdraw, I asked the clerk to give me copies.   So, I may ask the clerk to just look at the original.

In addition to certification, did you do any kind of notice to him that he would, under the Practice Book—This is to advise you, I seek to withdraw, and, you know, if you don't get successor counsel—

MR. BLACK:  I don't think so.   What we did send him, however, was a copy of the motion.

THE COURT:  Okay. All right.   So what I have here is—

MR. BLACK:  I believe that's the case.   We sent him a copy of the motion, return receipt requested, at the time, and delivery confirmation.

THE COURT:  All right.   I'll hear you on your motion, Counsel.

Mr. Boutin—Mr.   Koslik is not here.

MR. BLACK:  It's just—it's just simple.   It's an irretrievable breakdown.   And he indicated—if you remember correctly, Your Honor, while we here—when we were here in court last time, he was asking, rather vehemently, for the transcript of the oral argument on his appeal.   Initially, you denied it, and then you said okay, and I think you gave it to him.

And part of the reason—the hint that I'm getting—and, well, it was more than a hint—is that he, for some reason, thinks I did something wrong at that oral argument and wants to get it, and doesn't want me—indicated to me that he did not want me to do anything on the case—

THE COURT:  All right.

MR. BLACK:—until  he resolved the issue.   anD the problem was i Was on a time—you know, a time frame with the appeals court;  and I notified them, and they just said—they just said they will act after the Court acts.

THE COURT:  And can you tell me, did you raise similar arguments—arguments similar to the motion here in your arguments yesterday?

MR. BLACK:  It's the same.

THE COURT:  And what was the outcome?

Where was this, in New Britain court?

MR. BLACK:  New Britain, in front of Judge Landers, and he allowed the motion.   He—at the first hearing we had, he wanted—we had return receipt requested, but it wasn't signed by Mr. Koslik.   It was signed by—it was signed by somebody else who lived in the building.   So, he wanted me to make direct contact with him to make sure that he got notice.   That's why we called him.   And we got him both times we called, right away.

THE COURT:  All right.   And there's no return receipt in this file, but you're representing as an officer of the court that you gave him direct notice of today's hearing?

MR. BLACK:  I—Meagan Delisle [phonetic], my paralegal, gave him direct notice twice.   Well, once of this hearing, correct, after it was changed, and once before.

THE COURT:  All right.   Is there anything you would like to add to your motion, Attorney Black?

MR. BLACK:  No, Your Honor.

THE COURT:  All right.   Mr. Rubin, would you wish to be heard?

MR. RUBIN:  I have no position on the motion, Your Honor.   I would simply ask that when the Court rules that the Court make a finding based on Mr. Black's representations that Mr. Koslik was given actual notice of today's hearing.

THE COURT MONITOR:  Excuse me, Your Honor.   Can I just turn this mic around?

THE COURT:  Certainly.

THE COURT MONITOR:  Thank you, Your Honor.

THE COURT:  All right.

MR. BLACK:  I guess I should say one more thing.

If the Court remembers, he, for the longesttime, wanted to represent himself but felt like he couldn't because he was in custody.   Well, he's out of custody now.   That, that I know.

THE COURT:  Let me just see the file, Madame Clerk, if I may.

Does the public defender's office wish to be heard or other counsel?

MR. ZELDIS:  I wish to be heard, Your Honor.

Attorney Martin Zeldis.   I am here only in the event that if Your Honor granted the motion whether or not there would be any effort to have us ordered to find replacement counsel since Mr. Koslik isn't here, and there is no such motion before Your Honor.

I have nothing further to add.

THE COURT:  Give me a moment, please.

Counsel, Attorney Black, in your motion, you reference the fact that he has instructed you not to file anything further in these cases?

MR. BLACK:  He wanted to see the tran—like I said, he wanted to see the transcript of the appeal argument that I did.   And he said don't file anything in the meantime.

THE COURT:  And he has not been able to get that?

MR. BLACK:  I don't know if he has it or not, but I do know he respond—we've contacted him about this hearing, and he, sort of, ignored us both times.   That's all I know.   We've written him letters also to please contact our office so I could talk to him, and that hasn't happened as well.

THE COURT:  And he indicated he does not agree with how undersigned counsel is proceeding and—

MR. BLACK:  It would be fair to say that that has been a concern for a while.   We've managed to work through it, but I think at this point, we are not working through it anymore.

THE COURT:  If the Court were to grant your motion today, would you be willing to send a final letter indicating to him that the Court granted the motion, that he should either file a pro se appearance or retain other counsel immediately?

MR. BLACK:  That's what I did already in the New Britain case.   As soon as I walked out of court yesterday, I had my paralegal do it, and I absolutely will do it in this case as well.   I think I cc'd a copy of it to the Court.   But absolutely.

THE COURT:  You're still of the mind that the relationship has broken down, and you're in a tough position in terms of having to file things with the appellate court after you've been instructed not to with the—

MR. BLACK:  It's a tough position.   And I think, even if I was instructed to file things, I think I would have—at this point in time, I think I would have a difficult time filing things that—certain things that he would instruct me to do.   I think I'm at an impasse.

THE COURT:  All right.   Thank you.

The Court will make the following findings unless there's anything else from anyone else.

The Court will find that there has been pending since November 27, 2012, Attorney Black's motions for leave of the Court to withdraw as counsel.   And these relate to AC34547, which was a denial of this Court's petition for a new trial that was filed pro se by Mr. Koslik.   It's kind of an ancillary appeal related to the initial conviction.

There's a similar motion filed by Attorney Black, AC34541, where there was an appeal of Mr. Koslik's—my denial of Mr. Koslik's motion to correct illegal sentence.

There is a similar motion for leave of the Court to withdraw as counsel filed by Attorney Black in AC34540, which was an appeal of a motion that Mr. Koslik filed pro se well after the conclusion of the case and during the pendency of the appeal-in-chief.

He filed, at the trial court level, a motion for judgment of acquittal, which was denied by this Court in December 2012.   And I believe my denials of all these motions was sometime in December 2012.

And finally, there's a motion for leave of the Court to withdraw as counsel, dated November 27, 2012, from an appeal of my denial in December 2012 of Mr. Koslik's postjudgment motion to reduce sentence.

Mr. Koslik took—wanted appeals taken on each of those motions which were denied.   The Court had granted a fee waiver and, I believe, filed—appointed Attorney Black to represent him or appointed a public defender in request that he get a special public defender to represent him on all those ancillary matters.

The Court will find that based on the representations of Counsel and the recitation of the clerk that Mr. Koslik had notice of today's proceeding.

Specifically, our clerk relates that notice—when last Friday's hearing was postponed due to the blizzard on the afternoon of May 8, the hearing was scheduled—

MR. ZELDIS:  Excuse me, Your Honor.   February 8.

THE COURT:  I'm sorry.   February 8.

On February 7, the clerk's office sent notice to Mr. Koslik at the address we have for him on file here, 72 East Allenridge Road in Springfield, Mass. 01118.   And the clerk informs that notice went out to Mr. Koslik.   Today, of course, is February 15, 2012, and it's 2:25.   Mr. Koslik is not here.

Additionally, as an officer of the court, Mr. Black has represented that his office staff member, I believe, his paralegal, called Mr. Koslik to remind him first of the February 8 hearing.   And when that was subsequently postponed, called him this week, prior to today's date, to advise him of the hearing that we are currently conducting.

The Court finds as well that these motions have been pending since November 27 of 2012, and when they were filed, Attorney Black in his certification here indicates that he sent this motion to Mr. Koslik at 72 East Allenridge Drive in Springfield.   And the motion is rather detailed, listing the various reasons why Attorney Black believes in each case that where he has been appointed for the appeals why the attorney/client relationship has broken down.

The Court will also note that it has conducted many prior proceedings at this court, postjudgment, postconviction, relative to the issue of appellate counsel.   And I think it's safe to say that Mr. Koslik over the various years and months has had different requests and different points of view about appellate representation.

The Court credits the representations of Attorney Black not only about the actual notice that his office gave of today's proceeding but about the status of the relationship with Mr. Koslik.

These have been set forth orally here today by Attorney Black and in his motion, and I credit them.   I'm not going to repeat them again, but I credit and find based on what I've seen here or—strike that—what I've heard here and read here that there is an irretrievable breakdown in the relationship between Attorney Black and Mr. Koslik concerning appellate representation in the course of appellate representation in these matters.

Additionally, the Court credits the representations of Attorney Black that he was permitted to withdraw from representation of Mr. Koslik—appellate representation of Mr. Koslik—in criminal appeals that were pending out of a trial that occurred in New Britain GA.

The Court will grant the motion in each of these files, the four motions for leave to withdraw as counsel, Attorney Black's motion for permission to withdraw as counsel.

The Court credits the representation that Mr. Koslik is not currently incarcerated and has in the past—the Court's aware of this—Mr.   Koslik has in the past indicated that he would like to represent himself;  but I would think that one of the intervening circumstances here, since prior rulings of this Court on this issue, would be that Mr. Koslik is at liberty.   He is not restrained to the point where he could not have access to legal resources and legal research materials as he would have been, presumably, when he was incarcerated.

The Court will require—and I appreciate your willingness to do this, Attorney Black—that no later than Monday you get a letter out to him, informing him that the Court granted your motion to withdraw as appellate counsel in all of these matters, and I would request, as an officer of the court, that you advise him that he needs to either file self-represented party appearances with this Court and with the appellate court forthwith or retain other counsel to represent him on these matters and that his failure to do so could result in the appellate court's defaulting him for failure to prosecute his end of any appeal.   And I think he's the appellant on all of these cases.

So, I'd request that you send that return receipt requested, but get a letter out to him.

The Court will order a transcript of this hearing and of my findings, which I will sign as my written memorandum of decision.   That will be placed in the Court's file.

Because it's a written memorandum of decision, once it's signed, Madame Clerk—this is done at Judicial Branch expense—I am authorizing you to send copies to the following individuals:  Attorney Black, Attorney Rubin, Attorney Zeldis, and to Mr. Koslik, as a courtesy.

He resides at 72 East Allenridge Road, A-l—I think it's A-l-l-e-n-r-i-d-g-e, one word.   72 East Allenridge Road in Springfield, Mass., 01118.

And the Court will—the Judicial Branch will also pay for copies, Madame Reporter.   I'd also like my own copy, please.

I don't think there's anything further, gentlemen, unless anyone has anything that they would like to say or place on the record.

MR. RUBIN:  If I may, Your Honor, I'd just like to suggest a clarification.   The Court referred to Mr. Black's filing this motion in November of 2012, which is correct.

THE COURT:  Yeah.

MR. RUBIN:  But the Court referred to the Court's rulings as being in December of 2012, and I think that was December of 2011, the underlying rulings.   It couldn't have been December 2012 because that was after.

THE COURT:  You're correct, sir.   The record and the transcript should reflect this.   The four motions I've referenced—motion for judgment acquittal, motion to reduce sentence, petition for new trial, and motion to correct illegal sentence—were filed in 2011.

The Court held a hearing, wrote written decisions in December of 2011, and then the appeals where Attorney Black was subsequently appointed to represent Mr. Koslik were taken.

So thank you.   And that should be part of the transcript.

Do you have anything further, Mr. Rubin, before I hear from Mr. Zeldis?

MR. RUBIN:  I do not.   Thank you, Your Honor.

THE COURT:  Yes, Mr. Zeldis.

MR. ZELDIS:  Thank you.

I don't believe when Your Honor was reciting the various matters that this applied—apply to as Your Honor specified AC34539—

THE COURT:  That's the motion to reduce illegal sentence, AC34539.

MR. ZELDIS:  And then I don't recall Your Honor specif—again, I'm just going specifically with what I heard from Your Honor when you were referring to appellate court numbers.

THE COURT:  Yes.

MR. ZELDIS:  I don't recall Your Honor referring to AC34542 either.   And I just wanted to make sure that the order of the Court encompasses all of those matters.

THE COURT:  It does.   There was a—AC34542 relates to the petition for new trial.

AC34540 relates to a motion for judgment of acquittal, which, as I said, was filed long after the trial.

And AC34541 relates to a motion to correct illegal sentence.

Mr. Black was appointed in AC34541, AC34540, AC34542, and AC34539.   My ruling applies to all three of those, sir.   And again, those are motion to correct illegal sentence, a motion for judgment of acquittal, a petition for new trial, and a motion to reduce sentence.   So, in those four matters, the motions for permission by Attorney Black to withdraw as counsel are granted.

Is there anything further from anyone else?

Yes?

MR. PATEL:  Your Honor, I would like to not be included in these things so I don't have to come all the time.   I get notification, and I'm here.

THE COURT:  I think that's merely as a courtesy.

MR. PATEL:  Okay.

Are you still representing him in anything?

MR. PATEL:  No. I represented him, and the appellate court dismissed the appeal, and he has been notified.   So, I'm not really party to any of this thing now.

THE COURT:  All right.   Well, Counsel, just state your name again, for the record, and I will instruct the clerk to note that you are excused from any—there could be other motions filed.   I don't know.   On any matter where your appeal has been dismissed, I'll ask the trial court clerk's office here to exclude you.

Would you state your name again for the record.

MR. PATEL:  Thank you, Your Honor.

THE COURT:  No. Could you just state your name again for the record.

MR. PATEL:  My name is Laljeebhai R. Patel.

THE COURT:  Attorney Patel.   I think you did, but I wanted our clerk to hear that as well.

MR. PATEL:  Okay.

THE COURT:  All right.

MR. PATEL:  Thank you, Your Honor.

THE COURT:  All right, Counsel.   You may be excused from attendance at any future court proceedings if there are any.

All right.   Is there anything further we need to do today?

MR. BLACK:  No, Your Honor.

MR. BLACK:  Thank you, Your Honor.

THE COURT:  And the record may reflect it's now about 2:47, and Mr. Koslik is still not with us.   This proceeding began several minutes after ten after two.   It was noticed for two o'clock today.

MR. BLACK:  Thank you very much, sir.

THE COURT:  Thank you.

MR. RUBIN:  Thank you.

MR. ZELDIS:  Thank you.

THE MARSHAL:  All rise.

THE COURT:  Adjourn.

THE MARSHAL:  This Court is adjourned.  (The Court exited, and the hearing concluded at approximately 2:48 p.m.)

Hon. Richard W. Dyer, Judge

Dyer, Richard W., J.