Appendix — Dukes v. Warden, Conn. State Prison

Supreme Court brief1972

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DEC 23 197)

APPENDIX __ |} € ROBERT SEAVER, CLERK

UE ono"

— Court of the United States —

TerRM, 1971

No, 71-5172

CHARLES O. DUKES,

Petitioner,

v.

WARDEN, CONNECTICUT STATE PRISON,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF CONNECTICUT

Petition for Certiorari Filed July 27, 1971

Certiorari Granted November 9, 1971

i

INDEX

Order Appointing Special Attorney

Amended Petition for Habeas Corpus ..

Return of Respondent ........................ | Goerieedaiinethecasadnencdiigenseuieouaeten ener 4

Information oo. seis ae cisavesauiceneceusoessdepistehoastivesdcieeastesauacaie 5

Amendment to Information scovorsosustosinsorsliibinsscootcuvbavansvussaresanediaransonensnesboaeee 6

I cosscacsvdsacdeonnvsssintvensvessensconvecvisnsnresvnnesunveveseonsshiossonenenseednirorercrsbenvonsnsassnsivereese 6

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Superior Court Judgment oo .. iprlastadsigadinisugences 7

Court Proceedings, May 9, 1967 2. B28

Court Pesteniinds May 16, 1967 cs 28 = 26

Court Proceedings, June 2, 1967 20000. 27

Court Proceedings, June 16, 1967 .. nS 28 - 33

Memorandum of Decision in Habeas Corpus . 34 - 37

Judgment in Habeas Corpus .......... eeteecteeneinmecnn O12 OO

Finding on Habeas Corpus Appeal... 38 - 47

Assignment of Errors on Habeas Corpus Appeal _. 47 - 48

Oo) eC) oS 1-) 0) 48 - 57

Judgment Below oi ccceeeesceeeesseessssssseeennnvanvaneneseeesnnnenvenene 08

Exhibit 1, Habeas Corpus 2.0.0 59-60

Exhibit 2, Habeas Corpus ssi(‘iétStS;!;!!!Ct C61 - 2

Exhibit 3, Habeas Corpus 0. ~=63 - 72

Exhibit A, Habeas Corpus, Record on Appeal in

Criminal Case ieee vseeiensntesttitnevnnt sie 73 - 109

Transcript of Testimony, Habeas Corpus............ 110 - 166

1

Order Appointing Special Attorney

The court in the above entitled Habeas Corpus Petition

hereby appoints:

James A. Wade, Esq.

799 Main St.

Hartford, Conn.

as attorney for the petitioner.

Said attorney shall prepare said case for hearing as soon as

possible and notify the clerk of this court in writing as soon

as the case is ready for hearing.

By the Court,

Lioyp E. WEBB,

Assistant Clerk.

August 15, 1969.

No. 161335

CHARLES O. DUKES SUPERIOR COURT

v. HARTFORD COUNTY

WARDEN OCTOBER 2, 1969

Amended Petition For Habeas Corpus

The Petitioner, acting herein by Special Public Defender

alleges as follows:

1. The Petitioner is presently incarcerated in the

Connecticut Corrections’ 'astitute, Somers, Connecticut.

2. The cause of his imprisonment arose as follows:

a. On May 9, 1967, the Petitioner entered a plea of not

guilty in the Superior Court in and for the County

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of Hartford, Johnson, J., to an information charging

him in two counts with violation of the Uniform

State Narcotics Drug Act, and elected to be tried by

a jury of 12.

b. On May 16, 1967, the Petitioner again appeared be-

fore the Superior Court in and for the County of

Hartford, Johnson, J., withdrew his plea of not

guilty and entered a plea of guilty to the afore-

said information and an amendment thereto charg-

ing him with larceny in excess of $250.90 but less

than $2,000.00.

c. On June 16, 1967, the Petitioner was sentenced by

the Superior Court in and for the County of Hart-

ford, Devlin, J., to the Connec.icut State Prison,

Somers, Connecticut, as follows:

i. On the First Count: not less than five nor more

than ten years;

ii, On the Second Count: two years.

3. Prior to this Petition, the Petitioner has not filed an-

other Habeas Corpus Petition.

4. The Petitioner now claims that his detention is illegal

on the ground that his pleas of guilty were involuntary, were

improvidently made and were not the product of his free and

intelligent will for one or more of the following reasons:

a. The Court refused to grant the motion of the Peti-

tioner’s attorney of record to withdraw from the

the case and to permit the Petitioner to proceed with

other counsel of his own choosing;

4 ;

b. The court refused to give the Petitioner a reason-

able continuance to prepare his defense or to obtain

counsel of his own choosing;

3

The Petitioner was, in fact, not permitted to obtain

counsel of his own choosing after the Court had

given him a 24-hour continuance.

At the time of his entry of his plea of guilty, the

Petitioner was suffering from physical and mental

disturbances which prevented him from making a

free, voluntary and intelligent plea to the charges

‘against him;

At the time of his entry of his pleas of guilty, the

Court failed to make adequate inquiry into the vol-

untariness of his pleas;

At the time of his entry of his pleas of gui’ty, the

Petitioner was not afforded effective representation

of counsel because of a basic conflict of interest be-

tween his case and other cases represented by said

counsel;

At the time of sentencing, the Court denied the

Petitioner’s request to withdraw his pleas of guilty

and to obtain other counsel to represent him.

5. The ‘convictions resulting from said pleas of guilty

are violative of the Fifth, Sixth and Fourteenth Amendments

to the Constitution of the United States and Article First of

the Constituion of Connecticut.

Wherefore, the Petitioner prays that a writ of habeas

corpus be issued to bring him before said Court that justice

may be done.

Dated at Hartford, Connecticut, this 2nd day of October,

1969.

CHARLES O. DUKES,

By: JAMES A. WADE

His Attorney.

Filed October 6, 1969.

an eS > Se

RATTLE PENNE TN 6 OCTET NTE RED ERE ELITE NIN gE NRT TRA SNR FIT AMIRD

4

Return of Respondent

1. The respondent is the Warden of the Connecticut

State Prison.

2. On May 16, 1967, the petitioner pleaded guilty to one

count of Violation Of Uniform State Narcotic Drug Act and

one count of Larceny. |

3. On June 16, 1967, the petitioner was sentenced to

the Connecticut State Prison for a term of not less than five

nor more than ten years on the first count and two years on

the second: count.

4. Thereai.zr, the petitioner was duly delivered to the -

Warden of the Connecticut State Prison on a mittimus issued

by the Superior Court for Hartford County pursuant to said

sentence.

5. The respondent holds the petitioner by virtue of the

foregoing proceedings.

6. Acopy of the following are attached hereto:

a. Inforination

b. Amended information

ec. Mittimus

d. Judgment .

e. Transcripts dated:

| (1) May 9, 1967

(2) May 16, 1967

(3) June 2, 1967

(4) June 16, 1967

4)

By Way Of Answer To The Allegations Of The Armended

Petition, The Respondent Pleads As Follows:

i. Paragraph 1 of the amended petition is admitted.

2. Paragraph 2 of .ne amended petition is admitted.

3. Paragraph 3 of the amended petition is admitted.

4. Paragraph 4 of the amended petition is denied.

5. Paragraph 5 of the amended petition is denied.

FREDERICK E. ADAMS, Warden

Connecticut State Prison

Respondent

By JOHN D. LABELLE

State’s Attorney.

Filed October 30, 1969.

INFORMATION

In the Superior Court of the State of Connecticut, Hart-

ford County, May Term, A.D. 1967 John D. LaBelle, State’s

Attorney for the County of Hartford, accuses Charles O.

Dukes of Hartford, Connecticut, of Violation Of Uniform

State Narcotic Drug Act, and charges that at the City of.

Hartford, on or about the 14th day of March, 4967, the said

Charles O. Dukes did possess, have under his control, sell,

or dispense narcotic drugs, to wit: heroin, an opium deriva-

tive (as defined in Section 19-244 of the General Statutes of

Connecticut), in violation of Sections 19-246 and 19-265 of

the 1965 Supplement to the General Statutes.

JOHN D. LaBELLE

State’s Attorney

BE, (BGA ORL

eisai ai

No. 28358

STATE OF CONNECTICUT ) CRIMINAL SESSION

/ SUPERIOR COURT

“

Vv.

HARTFORD COUNTY

* CHARLES O. DUKES \ MAY 16, 1967

Amendment To Information

The information is herein amended by adding the follow-

ing count:

Second Count

And the said Attorney further accuses the said Charles

O. Dukes ox Larceny, and charges that at the City of Hartford,

.on or about the 14th day of March, 1967, the said Charles O.

Dukes stole various articles of a value in excess of Two Hun-

dred Fifty Dollars ($250) but less than Two Thousand Dol-

lars ($2,000), in violation of Section 53-63 of the 1965 Sup-

plement to the General Statutes, and Section 53-65 of the

General Statutes, Revision of 1958.

JOHN D. LABELLE

State’s Attorney

MITTIMUS

No. 28358

To the Sheriff of the County of Hartford, His Deputy, and

to the Warden of the Connecticut State Prison — Greeting:

Whereas, by a judgment of the Superior Court holden at

Hartford within and for the County of Hartford, on the 16th

day of May, 1967, Charles O. Dukes, of Hartford hereinafter

referred to as the prisoner was convicted of the crime of

Violation of Uniform State Narcotic Drug Act at the City of

Hartford, on or about the 14th day of March, 1967 in viola-

tion of Sections 19-246 and 19-265 of the 1965 Supplement to

the General Statutes as charged in first count; Larceny at

the City of Hartford, on or about the 14th day of March, 1967,

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in violation of Section 53-63 of the 1965 Supplement to the

General Statutes, end Section 53-65 of the Generai Statutes, i

Revision of 1958, as charged in second count and was by said :

court on the 16th day of June, 1967 sentenced to imprison-

ment in the Connecticut State Priscn, for the term of not less

than five (5) years nor more than ten (10) years on first

count and two (2) years on second count, and to stand com-

mitted in the said State Prison until said sentence be fully

complied with, as appears of record; whereof execution re-

mains to be done.

These Are Therefore By Authority Of The State Of

Connecticut, to command you the Sheriff of the County of

Hartfora, or your deputy, that you deliver the said prisoner

Charles O. Dukes to the Warden of said State Prison, or his

agent, at said State Prison, and to leave with him this mitti-

mus; and you, the same Warden of said State Prison, are like-

wise hereby commanded to receive the said prisoner Charles

O. Dukes and him safely keep until said sentence be fully

complied with or until he be discharged by due course of law.

Dated at Hartford, this 16th day of June, 1967.

By order of court

PAUL LEVINE

Assistant Clerk

JUDGMENT

STATE OF CONNECTICUT

No. 2°358

STATE SUPERIOR COURT

V. HARTFORD COUNTY

CHARLES O. DUKES JUNE 16, 1967

HON. RAYMOND J. DEVLIN, JUDGE

John D. LaBelle, State’s Attorney for the County of

Hartford accuses Charles O. Dukes of Hartford of Violation

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on or about March 14, 1967 in violation of Sections 19-246 and

19-265 of the 1£35 Supplement to the general statutes as

charged in the information and the said attorney further ac-

cuses the said Charles O. Dukes of Larceny (value in excess

of $250.00 but less than-$2,000.00) at the City of Hartford on

or about March 14, 1967 in Violation of Section 53-63 of the

1965 Supplement to the general statutes, and Section 53-65 of

the general statutes, Revision of 1958 as charged in the sec-

ond count of the amendment to information as on file will

appear.

To both counts of said information on May 16, 1967 the

said Charles O. Dukes pleaded and said that he was guilty.

Whereupon this court doth accordingly adjudge the said

Charles O. Dukes guilty as charged in both counts of said in-

formation and that he be imprisoned in the Connecticut State

Prison for not less than five (5) years and not more than ten

(10) years on the first count and two (2) years on the second

count.

DOMINIC A. DiCORLETO

Clerk

COURT PROCEEDINGS, MAY 9, 1967

Case No. 28358

STATE SUPERIOR COURT

V. HARTFORD COUNTY

CHARLES O. DUKES MAY 9th, 1967.

BEFORE HONORABLE SIDNEY A. JOHNSON, JUDGE

John D. LaBelle, Esq. | Peter J. Zaccagnino, Jr., Esq.

For the State For the Accused

MR. LABELLE: This is a matter for trial, Your Honor.

May a jury panel of thirty-five be ordered? Counsel wishes

_—_

to discuss some matter with me, I don’t know what it is, but

while recess is ordered may a jury panel be called.

9

THE COURT: Do you want them called down imme-

diately? t

MR. LABELLE: If they get one, as soon as we get one ;

we'll know what we are going to do. 4

THE COURT: Very well, panel of thirty-five may’ be ;

requested. There will be a short recess. :

Later :. . 3

MR. ZACCAGNINO: If it please the Court, Your Honor, 3

on this matter that is now pending before the Court, State of e

Connecticut versus Charles Dukes, between last night and [

this morning, Your Honor, we have had a number of conver- e

sations with Mr. Dukes, and I think that I am going to peti- E

tion the Court to formally withdraw. from this case because t

there happens to be a slight conflict between my client and

myself, and it’s not financial, Your Honor, it is one basically

that goes to the heart of my representing him, and I think,

Your Honor, in fairness to the defendant, he hasn’t been put :

to plea as yet, and this case has just been bound over three ;

or four weeks ago, it’s a very recent arrest, that in good con-

science and in order for this man which is a very serious

charge, Your Honor, as Your Honor knows, that I think —

he tells me this morning that he wants to represent himself

and he so wants to represent that to the Court, and in the

recess I told him the foolishness of his ways, to try a jury

case by himself.

TOE BIER GPE TY

However, I don’t know what his opinion is right now, but

he also tells me he may get additional counsel. I don’t know

what the Court’s position is on that. I’m going to ask Your

Honor, if Your Honor wants me to put it in writing I will, to

withdraw. ‘ine cefendant is here, and, Your Honor, he has

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full knowledge of this and wants to represent to the Court

that is so. We do have this difference that may go to the heart

of my representing him.

I know Mr. LaBelle is opposing my withdrawing at this

date, but as I say to the Court the man has not even been put

to plea as yet and it seems to me that the motion should be

granted because of the very basic position of an advocate in

behalf of a defendant who he must believe in the cause in

which he is speaking for in many ways and there ae some

things here that we have a disagreement on with respect to

the matter which may in some way prejudice the defendant.

I just think he should have at least — the trial should be

conducted in such a manner where I don’t feel as his attorney

perhaps something he ‘s doing is wrong. That is the whole

issue, if Your Honor please. Not wrong with respect to the

arrest, I’m not talking about that, but aaa the trial, the

conduct of same.

MR. LABELLE: Well, if other counsel appears, Your

Honor, ready to go to trial today, I have no objection to the

withdrawal. Until other counsel appears it seems to me there

isn’t any basis to withdraw. We are ready to try the case

today.

THE COURT: Are there some preliminary motions here?

MR. ZACCAGNINO: Yes; Your Honor, there are some

preliminary motions. I ghint- t’'d like to at least argue those

first. ~

THE COURT: Do you want to argue those before he is

put to plea? .

MR. ZACCAGNINO: Yes, Your Honor. The clerk in the

center courtroom has the motions. Do you have copies?

ASSISTANT CLERK EDWARD O’BRIEN: Yes.

11

MR. ZACCAGNINO: Your Honor, the first motion — do

you have the motions?

MR. O’BRIEN: I have the motions, not the information.

MR. ZACCAGNINO: We are only talking about the mo-

tions right now. Would you give the Court the motions? John

hasn’t even filed the information yet.

The first motion I’d like to argue is the motion to dismiss

or quash the information because of the fact that this man

was not indicted by the Grand Jury in accordance with United

States Constitution Fifth Amendment in particular and the

Fourteenth. I realize, Your Honor, that the State Supreme

Court has ruled that it is not necessary to indict in this State.

However, Your Honor, in view of the case in Ohio and Hogan

versus Molloy, Molloy versus Hogan, rather, that if the

Supreme Court of the United States gets this matter they

may change their opinion. I know Your Honor can’t sit as an

appeliate court and have to overrule this motion and I don’t

think argument is necessary. I know Your Honor can’t grant

it. However; we want the motion to stand as part of his file.

THE COURT: Do you wish to be heard on the motion to

quash?

MR. LABELLE: Of course it’s been decided in our State,

Your. Honor, in Connecticut 153451 in State versus Jones,

and the United States Supreme Court has already decided it

in Beck and Washington, 369 US 541, so that I see no basis

for that motion.

THE COURT: The motion to quash is denied”

MR. ZACCAGNINO: If Your Honor pleases, with re-

spect to the second motion that I have in the file, the second

motion is directed at the — is a motion to suppress what was

taken in the place known as 35 Barbour Street, because it is

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our claim, Your Honor, this is strictly a question of law, I

don’t think it needs any evidence on it. The only matter we

are directing it at, by error we listed five or six reasons, the

only issue here is whether or not the Court had probable

cause to issue the search warrant in the original instance. It’s

our claim on that, and Your Honor will have to peruse the.

search warrant, it’s our claim that all the information con-

tained therein, is based on hearsay evidence, and it’s our claim,

Your Honor, that if that is the situation that the search war-

rant itself is bad because there should be some corroborating

factors other than as set out in US versus Jones. There are

some cases, Your Honor, that have come down that have

been — where they have found the search warrant to be

good where they all contain hearsay evidence but those are

particular cases in which there were other corroborating

factors.

If Your Honor goes through the search warrant you will

notice that it’s all from an undercover agent who told them

certain things, and the nolice claim that they saw known nar-

cotic addicts going into this particular address. I claim all of

that is based upon hearsay and the warrant itself on its face is

defective, and it’s our claim that in the rules set out in US

versus Jones, and I don’t have the citation here, I think I can

get it for you before the morning is over, that the search war-

rant is bad in that respect alone.

MR. LABELLE: I have a photocopy of it, Your Honor,

I’il give it to Your Honor now if there is no objection.

MR. ZACCAGNINO: There is no objection to the photo-

static copy of the original going to Your Honor for perusal on

the points which I mentioned.

MR. LABELLE: I will locate the original.

THE COURT: Well, I examined the affidavit and applica-

tion and this search and seizure warrant, and it is found that

13

there is sufficient information in the affidavit and applica-

tion to establish probable cause that the property should be

seized so the motion to suppress is denied.

MR. ZACCAGNINO: Your Honor, there is a third re-

quest in the file for a bill of particulars, and if you will notice

that there’s only four basic questions, four things. Your Honor

doesn’t even have an information filed with the Court as yet

so I suspect that —

THE COURT: I don’t have the information.

MR. ZACCAGNINO: It hasn’t been filed, I don’t think.

Have you filed it yet? Are you going to answer these questions

or do you oppose the questions?

MR. LABEI.LE: If Your Honor please, the matters set

forth in the bill of particulars are known to the defendant be-

cause he had a hearing in probable cause and all these matters

were testified to in the hearing in probable cause transcript

which was available to the defendant so that he is asking for

something here which he already knows the answer to he-

cause he has had that hearing. He knows where the articles

were found and he knows who had them. He knows all of the

circumstances because he had the opportunity even to cross-

examine the officers, so there isn’t anything in this here that

he is entitled to that he doesn’t already know.

THE COURT: Have vou seen it? Were you at the hear-

ing?

MR. ZACCAGNINO: I had ordered it, Your Honor, and I

understand from talking to my office they just delivered it to

my office this morning. I haven’t had a chance to look at it,

but is there possession, control, sale and dispensing? I sat

through the hearing in probable cause. If there is anything

in Mr. LaBelle’s file that shows sale or dispensin,; — the only

14

theory the State is going to have to proceed on is that he |

was in the same area as the drugs produced under his pos-

session or control. He doesn’t have any evidence I know of

that came out of sale and dispensing. If they are alleging that

in the information we are entitled to know so that we can

prepare a defense for this man or he can defend himself

whether or not they are actually trying to prove a sale. If

they are he should have knowledge of that so he can find out

the information concerning that to prepare himself a defense,

I suspect.

THE COURT: Anything in the hearing on probable

cause to show a sale?

MR. LABELLE: Not in the hearing and probable cause,

Your Honor. However, this is the language of the statute and

under the language of the statute if the sale or the dispensing

can be proven we will be entitled to prove it, and with respect

to the hearing in probable cause my understanding is that

there was no testimony in that hearing with respect to a

particular sale. ,

THE COURT: Well, do you intend to prove a sale, Mr.

Attorney?

MR. LABELLE: Well, I don’t want to be limited in my

proof, Your Honor, and — may I have just a moment?

MR. ZACCAGNINO: Your Honor, in addition to that,

while Mr. LaBeile is discussing this, for Your Honor’s

thoughts on it, under the State Constitution, the Federal

Constitution, the defendant is entitled to know with particu-

larity the specific charge against him. He knows that, but

also, Your Honor, that the reason for the bill of particulars .

is so that it can aid him in his defense with respect to this

particular charge. Now to go back to 111 Connecticut, Grasso

versus Frassinelli, there is a case there, Your Honor, where

15 .

I think he was charged with something or something else,

which involved really two parts of the same statute, and the

Court struck that down because they said, well, you know,

he’s got to know specifically. I don’t say this falls within this

same particular case in 111 Connecticut, but it does Your

Honor involve the charging with possession in effect and/or

sale. .

Now, Your Honor, he knows about the possession be-

cause he is fully apprised. I am prepared to go to trial on

possession or control but if there is a sale involved I think

he is entitled to know that to prepare his defense and get

witnesses. This is one of the things which I say also, Your

Honor, that is involved because of the time element invoived

here. He’s got to know these things. .

MR. LABELLE: So far as the State is concerned, Your

Honor, we are-prepared to prove a sale. I do not wish to dis-

close who the sale was made to because I have reason to be-

lieve that the witness would be tampered with. I don’t want

to take any risk with respect to the witness.

MR. ZACCAGNINO: I don’t know how the defense can

overcome a statement like that, Your Honor, but of course

you can say that about any witness, but I think he probably

— I am saying in his behalf he probably would have to know

‘the date, the specific date and the place and so forth if they

really are intending the sale. That is why we ask to whom.

If they substitute the date, time and place —

MR. LABELLE: I’ll give him the date, time and place.

MR. ZACCAGNINO: It might satisfy the defendant in his

defense, Your Honor.

MR. LABELLE: I do not see any reason at this point why

the person who made the purchase has to be disclosed.

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THE COURT: I won’t have that disclosed.

MR. ZACCAGNINO: I’m not particularly claiming that

but we have to know the general area.

THE COURT: The date, time and place.

MR. LABELLE: I'll give him the date, time and place.

MR. ZACCAGNINO: Okay. If he submits that, Your

Honor, I have no objection, and the rest of the things, Your

Honor, we're really not — I think that they are not claiming

dispensing. You’re not claiming dispensing?

MR. LABELLE: Only insofar as dispensing applies to

the sale, Your Honor.

MR. ZACCAGNINO: All right. If that is the limitation

of it I think we’ve got enough on the bill of particulars to go

forth.

Now the next thing is, Your Honor, that the defendant

now wishes to address the Court, Your Honor, on the matter

which I spoke to Your Honor about, a i I would just like

to say to this Court —

THE COURT: No, he hasn’t been put to plea yet, Your

Honor, and that is — the issue here is about my motion to

withdraw, that I understand Mr. LaBelle’s position is the

reason for his particular position but I also understand, Your

Honor, this detendant’s position because it’s an unusual situa-

tion, Your Honor, on a case that is so new that the same day

of plea, that you go to trial. I agree Mr. LaBelle called me on

Monday. He sai‘ he called me earlier, I’m sure he did. If he

said he called me he must have called my office. I wasn’t

there. And he told me to be ready but it’s an unusual circum-

stance when they tell me to be ready and the man hasn’t pled.

I took it he’s got to be ready to plead on Tuesday morning. I

17

knew it was going to be a trial and so advised the defendant.

I’ve been waiting to address the Court because the Court has

been busy on other matters. He tells me he either wants to

represent himself or get counsel outside of the county that he

can have more confidence in for some reason or other. Now I

don’t know what the reason is but he would like to address

the Court before he is put to plea so he has the right to coun-

sel. If he is not going to have that right of other counsel to z

get somebody to represent himseif then I think, Your Honor,

whatever he wants to say I’d like to have him address the

Court because if Your Honor grants my motion he’ll be with-

out counsel. for the moment. Do you want to address the

Court?

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THE ACCUSED: Judge, Your Honor, I’d sike io ask the

Court —

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THE COURT: I can’t hear you.

THE ACCUSED: I’d like to ask the Court several ques-

tions.

THE COURT: I still ean’t hear you.

MR. ZACCAGNINO: Speak up.

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THE ACCUSED: Id like to ask the Court several ques-

tions to be permitted. Number one, I would like to ask for the

prosecutor of this particular case to withdraw from the case

because if I try the case I intend to cross-examine him con-

cerning this case and I’m afraid it’s going to cause a conflict

of interest. I don’t think it would be fair to the accused.

MR. LABELLE: If Your Honor please, this man is not

going to run this court as long as I have anything to say to the

Court about it. He knows that this case is ready to go to trial

and counsel also knew this as Jong ago as at least a week

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18

because his office was notified by my office on several ccca-

sions during the middle of last week, Wednesday and Thurs-

day.

Now if this man wants to try his own case let him try

his own case and let counsel sit with him and advise him if he

wants to try his own case. And if he has other counsel he

wants to get in place of Mr. Zaccagnino then Mr. Zaccagnino

can leave but as far as the State is concerned we are ready to

go to trial and this story about him going to cross-examine

me in this case is news to me. I don’t intend to be a witness

so I don’t think he’s going to cross-examine me.

THE COURT: Well, we’ll take that matter up if and when

we try the case. What is your next point?

THE ACCUSED: Number two, Your Honor, with local

counsel I am afraid, well, I know there is going to be resent-

ment. I have reasons to believe that through conversations,

and I’d like the opportunity to hire in attorney from another

state that don’t have no knowledge of the case, of this specific

case. Otherwise I feel as though that is the reason that I in-

tend to try my own case in the event that the Court doesn’t

grant it. .

THE COURT: You wish to try the case yourself is that it?

THE ACCUSED: If the Court doesn’t grant me opportu-

nity to hire an attorney out of the State, sir, because I don’t

want no resentment upon any attorneys, local attorneys.

THE COURT: Well, at this time it’s rather late to bring

that in. The State says it’s ready for trial. You were notified

for trial so we will proceed with the trial. Whether or not I

will allow counsel to withdraw is another thing.

THE ACCUSED: Yes, sir. I haven’t even been put to plea

on this.

_—_

19

THE COURT: Well, you’ll be put to plea if we go for-

ward.

THE ACCUSED: Well, that’s all at the present time.

Thank you.

\

MR. ZACCAGNINO: If Your Honor pleases, I just might

like to say one thing in conclusion. I think this man has other

counsel besides myself involved in another matter, and I

realize that the court is being tied up, but I think in view of

the seriousness of the matter, in view of my position, I was

going to ask for a continuance ‘ill tomorrow morning and two

things may occur.

One, it may be that my position, I might be able to con-

vince my client of. If I can’t at least he will have overnight

to get counsel. I think it’s not an ureasonable delay of the

court because tie issues invoived are far more serious than

any inconvenience in this instance to the court. I realize this

is inconvenient. I realize Mr. LaBelle told me this but be-

tween last night and this :norning a great change of position

has taken place between my client and I in the matter so in

view of that this is something we didn’t plan to delay the

court, it just came about and I know one thing being part of

the case tiiat I can’t see any justification, Your Honor, for

not allowing that time till tomorrow morning because it may

be if it doesn’t develop like I would like it to develop at least

this man will have a chance to go over this case, read the

transcript with me, I’ll advise him, get other counsel here or

do something to help him. I don’t hold any plea for delay of

the court. I sat here for three days waiting for the court to

be open to get to this point. I’ve been here Tuesday, Wednes-

day and Thursday. I didn’t do anything in my office a‘i three

days. I say to Your Honor I have been here. I don’t think I

have unduly delayed the court and I don’t think this man

has. I think we have come now to the position where Your

Honor has to decide that with respect to this because I don’t

saa

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26

feel Your Honor that I can do this man justice in this par-

ticular issue and that doesn’t mean that he can’t get other

counsel to feel differently than 1 do. I think he should

have at least tomorrow morning. I don’t think that is too

much delay. I don’t see the great pressure of one day when

a man hasn’t been put to plea. It’s the f: st case I have had

in this court where the man has been pui to trial on the same

day of plea. I do think it wouldn’t inconvenience the court.

I feel very uneasy about the situation I am presenting to

the Court, Your Honor, and I don’t know that it might not

resolve itself. I don’t think 1 can resolve it but I do feel he

should have this overnight. If he can’t get other counsel I’ll

assist him in trying to get him other counsel because I don’t

think an man can try a case of this nature by himself.

MR. LABELLE: Of course that is a matter of the Court’s

discretion, Your Honor. We are prepared to go forward today

and the Court might wish to consider in deciding this matter

whether or not a jury if it is going to be a jury trial could

be picked and testimony started tomorrow.

THE COURT: Well, I think what we will do is present

him for plea, give him the opportunity, then we won’t pre-

sent any evidence today but we'll pick a jury today and I will

hold you in attendance, counsel.

MR. ZACCAGNINO: If Your Honor pleases, is Your

Honor instructing me that —

THE COURT: I’m not allowing you to withdraw at this

time.

MR. ZACCAGNINO: At this time I don’t know whether,

Your Honor, it meets with this man’s approval, because it

may, Your Honor —

THE COURT: He says he wants to defend himself.

21

MR. ZACCAGNINO: Yes, Your Honor. I think he does

want to defend himself as opposed to me representing him in

the matter. I don’t know. If it meets with his «pproval I sup-

pose he has a right to defend himself.

THE COURT: He’ll be entitled to ask questions of the

jurors, of the panel, if he wishes, and then we will go to trial

on the factual issues tomorrow. Would you like a short recess?

MR. ZACCAGNINO: Yes, Your Honor. Excuse me. I

think it might be helpful.

(Short recess. )

Later:

THE COURT: First, do you want to present the person

for plea, counsel?

MR. LABELLE: Yes. May he be put to plea, Your Honor.

THE COURT: Put him to plea and election.

MR. ZACCAGNINO: We'll waive the reading of the in-

formation.

MR. O’BRIEN: Charles O. Dukes. how old are you?

THE ACCUSED: Thirty-two years old.

MR. O’BRIEN: Charles O. Dukes, the State of Connect-

icut charges you with violation of the Uniform State Narcotic

Drug Act. How do you plead?

THE ACCUSED: Not guilty.

MR. O’BRIEN: Do you elect a trial by Court or by jury?

THE ACCUSED: By jury of twelve.

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THE COURT: Very well. Now you have a statement to

make?

MR. ZACCAGNINO: Yes, if Your Honor pleases. I am

going to ask the Court to continue this matter until tomorrow

morning and at that time, Your Honor, give Dukes a chance

to get other counsel or, as he originally told me, that he

wants to represent himse‘’* It gives him the right tc either

represent himself or have -ner counsel. In the meantime I’il

have a conversation with him advising him of the difficulties

so he will understand what he is faced with if he represents

himself. I understand he has that right if he so desires and J

have told Mr. LaBelle the case is going to go forward and

he understands it. Do you understand :t, Dukes?

THE ACCUSED: Yes.

MR. ZACCAGNINO: So I’d ask for tomorrow morning

to have a further chance to talk with Dukes.

MR. LABELLE: May I clear up one matter on the rec-

ord, Your Honor? We filed a photostatic copy of the search,

warrant. { understand counsel has no objection to substituting

the original when it gets here.

MR. ZACCAGNINO: No, I! have no objection to that,

Your Honor.

MR. LABELLE: I take it — the original, I understand,

was sent to Middletown by mistake, to the Circuit Court’s

filing office, but I will have it here tomorrow.

THE COURT: Very well.

MR. LAPELLE: And then as I understand it on the mo-

tions I am to give to the answer to the motion for the bill of

particulars the date, time and place of the alleged sale?

MR. ZACCAGNINO: Ves, that’s right.

pede

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THE COURT: Very well. Well then it’s perfectly under-

stood by you, Mr. Dukes, that you will proceed to trial to-

morrow morning?

THE ACCUSED: Yes, sir.

THE COURT: Very well. Then we’ll continue the case

till tomorrow morning and tomorrow morning will the clerk

see to it that we have a panel.

MR. O’BRIEN: Yes, Your Honor.

THE COURT: Now then we will have a short recess.

COURT PROGEEDINGS, MAY 16, 1967

CASE NO. 28358

STATE SUPERIOR COURT

V. HARTFORD COUNTY

CHARLES O. DUKES MAY 16, 1967

BEFORE HONORABLE SIDNEY A. JOHNSON, JUDGE

JOHN D. LABELLE, ESQ. ROBERT C. DELANEY, ESQ.

For The State For the Accused

MR. LABELLE: I have been informed that there has

been a request to change his plea to the information on file.

At the time of the bindover, Your Honor, in this case, there

was another count which was not put in the original informa-

tion because it was a separate offense. Counsel at that time

had agreed that that count would be held in abeyance until

such time as this ceunt in the original information was dis-

posed of. In view of the request to change a plea here I

5

j

3

24

would like to file an amendment to the information, Your

Honor, to ada the second count back to it so that the informa-

tion will be the original count plus this second count.

THE COURT: Is that understood?

MR. DELANEY: That is understood, Your Honor. We

agree with that.

THE COURT: Very well. Permission is so granted. Then

I understand Mr. Dukes is going to change his plea, is that it?

MR. LABELLE: Yes, Your Honor, and I would like to ask

if inquiry would be made as to change of plea and that he be

put to plea on both the original information again and this

amendment also. Excuse me, Your Honor. The record also

ought to appear that Mr. Delaney is here with him today

and he is in the office of Mr. Zaccagnino. I think the Court

might inquire with respect to the representation since there

had been some indication that counsel had asked to withdraw

the other day.

THE COURT: Well now, Mr. Dukes, I want to be sure

that everything is in order here. I was present the other day,

of course, when you were presented and the problem came

up about an attorney. Now I want, now Mr. Delaney is here,

are you fully satisfied with the services he is rendering you,

Mr. Dukes?

THE ACCUSED: Yes, sir.

THE COURT: You are. And now you know of course,

Mr. Dukes, that — you know of course that the State of

Connecticut has the burden of proving you guilty on the

charge and you are free to go to trial but you still wish to

change your plea, is that correct?

THE ACCUSED: Yes, sir.

25

THE COURT: And do you do this of your own free will,

Mr. Dukes?

THE ACCUSED: Yes, sir.

THE COURT: And you know the probable consequences

of it? 4

THE ACCUSED: Yes, sir.

THE COURT: Very well, and no one has induced you to

do this, influenced you one way or the other? You are doing

this of your own free will?

THe ACCUSED: Yes.

THE COURT: Very well then. We wi!l accept the change

of plea.

ASSISTANT CLERK JOEL ELLIS: Mr. Dukes, huw old

are you?

THE ACCUSED: Thirty-two years oid.

MR. ELLIS: Do you waive reading of the information?

MR. DELANEY: We will waive the reading.

MR. ELLIS: To the charge of violation of Uniform State

Narcotic Drug Act what is your plea?

MR. DUKES: Guilty, sir.

MR. LABELLE: May we have the plea to the amend-

ment also?

MR. ELLIS: Do you waive reading of the amended —

MR. DELANEY: Waive reading of the amended in-

formation. °

ne REE oe Pa ae eR

26

MR. ELLIS: In the amended information you are charged

in the second count with larceny. What is your plea to that

count?

THE ACCUSED: Guilty, sir.

THE COURT: Both pleas are accepted.

MR. LABELLE: May these matters be referred to the

probation department for pre-sentence report, Your Honor.

THE COURT: June 2nd.

MR. LABELLE: And may they be assigned disposition?

THE COURT: They’ve got quite a few, I understand, for

the 26th.

MR. LABELLE: May it be June 2nd.

THE COURT: June 2nd, and continued under the same

bond.

MR. LABELLE: The bond inthe case is twenty thousand

dollars.

THE COURT: Very well. Pre-sentence investigation is

ordered, sentencing for June 2nd on the same bond.

MR. DELANEY: Thank you, Your Honor.

-_

COURT PROCEEDINGS, JUNE 2, 1967

27

No. 28356

STATE SUPERIOR COURT

V. HARTFORD COUNTY

CHARLES DUKES JUNE 2, 1967

BEFORE HONORABLE RAYMOND J. DEVLIN, JUDGE

GEORGE A. SILVESTER, ESQ.

FOR THE STATE

PETER J. ZACCAGNINO, ESQ.

FOR THE ACCUSED

MR. ZACCAGNINO: If Your Honor pleases, this was

set down in the other courtroom before Judge Johnson

this morning, and Mr. Capshaw is still working on the report,

and they tell me, I find through Dukes they need another

two weeks in which to finish it. Mr. LaBelle asked? me to

have the case called here because Judge Johnson is handling

divorce matters.

I would also say that all the matters we have asked for

consolidation haven’t come in, so we’d need a continuance

for that purpose anyway.

MR. SILVESTER: June 16th, if Your Honor pleases,

under the same bond?

THE COURT: June 16th. Same bond.

MR. ZACCAGNINO: Thank you, Your Honor.

PU Pils eae Rh ER nts

28

COURT PROCEEDINGS, JUNE 16, 1967

No. 28358

STATE SUPERIOR COURT

V. HARTFORD COUNTY

CHARLES DUKES JUNE 16, 1967

BEFORE HONORABLE RAYMOND J. DEVLIN, JUDGE

JOAN D. LABELLE, ESQ.

ATTORNEY FOR THE STATE

PETER ZACCAGNINO, ESQ.

ATTORNEY FOR THE ACCUSED

MR. LABELLE: 28358, Charles Dukes.

MR. ZACCAGNINO: If Your Honor please, prior to

this man being sentenced in this particular matter, I discussed

this momentarily with Mr. LaBelle. Mr. Dukes has advised

me that he has other counsel from New Haven: Mr. Fazzano,

who is representing him, and I don’t intend in any way to

delay the Court. I thought, if he has other counsel, I have no

no objection to getting out. In fact, I do not want to

represent Dukes if he doesn’t have any confidence in me.

But Fazzano was tied up, Attorney Fazzano was tied up

this morning and is requesting a continuance for a week,

and I told Mr. Dukes the most I would do for him would

be to put the motion to the Court and suggest it be con-

tinued until Tuesday. I think this, Your Honor, that if he

has other counsel and because of the serious nature of the

charges, that he should have counsel of his own choosing.

If he has no confidence in me, I don’t resent it personally.

I understand his position. But I do feel that this is a very

serious situation, and Mr. LaBelle wants to pr ‘ceed this

morning with sentencing. I don’t quarrel with Mc. Labelle

on that point. I want to state my position to the Court so that

Your Honor will know what his position is. He told me this

morning that he felt that he didn’t have confidence in my

29

handling the matter and he wanted Mr. Fazzano to come in.

If that is the situation, Your Honor, as I say, I don’t have

any personal feeling on it, but I suppose there can be no —

you know, I can’t represent a man that — or if he doesn’t

have confidence in me is what I want to say. If he feels he

wants Attorney Fazzano, I would like to state to the Court I

have no objection; and as a matter of fact, I welcome it. I

don’t want to be dilatory because this man comes up this

morning and he tells me he has another lawyer, but I feel

it is so serious I don’t know what to tell Your Honor except

to tell Your Honor that I should be relieved as counsel when

Mr. Fazzano —

THE COURT: What could other counsel do that you

couldn’t do?

MR. ZACCAGNINO: I don’t know. Your Honor; but I

do say this: That it’s become a situation, Your Honor, that I

can’t quite understand either, and he feels, and I stated his

position to Your Honor, so that Your Honor knows. And if he

has anything he wants to say to Your Honor, I suppose he

ought to say it to you. I have said what I have goi to say.

THE COURT: What do you want to say, Dukes?

THE ACCUSED: Well, I was —

THE COURT: I can’t hear you. Speak up.

THE ACCUSED: I was most interested in justice in this

case, and I spoke to maybe about twenty attorneys from

Hartford, and nobody seemed to want to take the case, repre-

sent me, and it would be more justice to get more justice by

hiring an attorney out of town, which I brought this out

before for certain reasons.

THE COURT: Well, you have a good attorney now.

What is the ‘objection to that?

‘

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30

THE ACCUSED: Well, I would rather have an attorney

out of town for certain reasons of the case. Your Honor, sir —

THE COURT: Well, I think we ought to go on with it

today.

MR. LABELLE: There has been no appearance.

THE COURT: No appearance been filed.

MR. LABELLE: It is my understanding from Mr.

Fazzano, who called my office this morning, called one of

the detectives, that he was just contacted last night. He

doesn’t know Dukes or anything about the cases. Now, no

appearance has been entered. It is simply a disposition. It

isn’t a trial, and I don’t see there is any reason for delaying

if further. He’s had plenty of opportunity when he was put

to plea in this matter, and the court specifically asked him

before he accepted the plea whether or not he was satisfied

with his counsel. And at that time the plea was accepted,

he indicated to the court that he was. I ask that the sentence

be imposed in 28358.

THE COURT: The sentence will be imposed.

MR. LABELLE: This matter, there is two counts in

this information. One is, the first count is a violation of the

Narcotics Act, 19-265; and the second count is larcenv or

receiving stolen goods. |

Before he is sentenced, Your Honor, he’d been asked to

take some cases from Fairfield County and some other

counties, I understand now that he does not want to con-

solidate those cases, so that as long as that is clear in the

record.

THE COURT: There are other cases from other

counties?

a

31

MR. LABELLE: There were some cases from other

counties, and I understand he doesn’t want to consolidate

them now.

MR. ZACCAGNINO: If Your Honor please, he wishes

to address the Court, and he told me the purpose of it. I

would rather have him address the Court on this matter

rather than me, if Your Honor pleases.

THE COURT: You mean with respect to the other

counts in other counties?

MR. ZACCAGNINO: This particular count pending be-

fore Your Honor.

THE COURT: I will give him a chance to talk.

MR. ZACCAGNINO: He tells me now, Your Honor,

he would like to change his plea, and I thought Your Honor

would like to know that. I don’t suggest that to the Court.

He suggests it, and that is the reason he hired new counsel,

and this comes as a surprise to me. This is the first I heard

of it, but I had a suspicion, Your Honor, that this may take

place because of the problem when he entered the plea. I was

maybe a little forceful. However, Your Honor, it was all

discussed with him, and he does feel, Your Honor, that the

reason he went out of the county was because no lawyer

would properly represent him in this matter in this county.

I don’t believe that, because I put a lot of hours in this case.

However, he does tell Your Honor now that he does want to

change his plea, and he better say it himself, because Your

Honor better talk to him about it.

THE COURT: What do you want to say?

THE ACCUSED: Yes, sir; I would like to change my

plea, Your Honor. At the time I pleaded, I just came out of

the hospital, I think it was a day, and I was unconscious for

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32

three days, and I didn’t realize at the time actually what I

was pleading to. And since then, I am a patient, taking

a mental examination at the Hartford Institute of Living and

also Dr. Harold, a heart specialist, and she said that, the

psychiatrist said that I needed psychiatry treatments.

THE COURT: I will deny the moticn.

MR. LABELLE: Your Honor has his record here, and

I would simply say he’s, so far as I am aware of, been in-

volved in criminal activities in this county for a substantial

period of time; and on the case, I would suggest by way of

disposition on the first count not less -han five no more than

ten years in the State’s Prison. On tk? second count, two

years, making an effective sentence of not less than five no

more than twelve years.

THE COURT: All right.

MR. ZACCAGNINO: Your honor, it puts me -t a slight -

disadvantage, but I will tell this to the Court: That at the

time that he changed his plea, Your Honor, that some of

these cases, Your Honor, were very tenuous at best, and

it is my understanding that all of the matters were going

to be disposed of on the same basis, consecutive or concurrent

sentences would be imposed. I think this, Your Honor, that

to sentence this man on one of these counts and for all of

them, the reason I induced him, I didn’t induce him, I dis-

cussed with him his best possible interest to change his

plea because he had so many matters pending. Now, pre-

ceeding on two matters, and all these matters are pending,

I feel that if Your Honor does accept the recommendations,

which is the five to ten on the sentence, the minimum or the

maximum or the narcotics case, he will have great additional

time, and I don’t know what to tell Your Honor other tha:

the fact I wish Your Honor would make a note for the record,

in the event I can talk to Dukes, that Your Honor does have

a

33

knowledge of these other situations, these other crimes which

are of a similar nature and of a weaker nature, and I would

say to Your Honor the only thing in defense of Dukes, I

realize his record is bad and his activities have been bad;

however, when he «hanged his plea and entered his plea of

guilty, he saved the State considerable amount of cost and

expense and time, because I think about five or six cases

pending against him, they oniy had one or two cases that

were of a strong nature, and I do think, Your Honor, that I

feel having been his counsel, that I should make this fact

known to Your Honor that it was a matter that Your Honor

would normally, under normal circumstances, in a situation

like this, enter concurrent sentences, if, in fact, it was so

recommended by the State’s Attorney; but since he doesn’t

want to plea to these other matters, I would like to mace

that note for the record, because I feel at some later date

he may have to come back to this court and see Your Honor

or see another judge on these other matters now pending

before it.

THE COURT: What do you want to say, Dukes?

THE ACCUSED: I am rather flabbergasted teally, be-

cause I didn’t expect this this morning. It just puzzles me.

I am not guilty of the charges. I am not guilty.

THE COURT: There are matters in this probation re-

port that are very illuminating: this man driving around in

very expensive -cars, being hospitalized on a couple of oc-

casions, the Welfare Department picking up a bill for seven-

teen hundred and ninety-four on one occasion, twenty-four

hundred and five dollars on another, it doesn’t smell too good.

On the first count, the sentence will be not less than

five no more than ten State’s Prison. The second count, the

sentence will be two years.

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Memorandum of Decision in Habeas Corpus

The petioner for a writ of Habeas Corpus bases his action

on: (1) that a p’ea of guilty is subject to reveiw on Habeas

Corpus to determine its voluntariness; (2) that his plea of

guilty was involuntary, because of ineffective assistance of

counsel; (3) that his plea of guilty was involuntary because

of inadequate time to obtain counsel of his own choosing or

to prepare his dcfense; (4) that his plea was involuntary be-

cause of physical and mental disturbances at the time of plea;

and (5) that the Court did not establish the voiuntariness;

thereof. This petitioner’s case has been before the Supreme

Court of Connecticut, State of Conn. v. Dukes, 157 Conn. 498,

and tn some extent the issues raised herein have been

answered adversely to his present claims.

The last issue that the Court did not determine the volun-

tariness of the plea has been determined in State v. Dukes,

supra 506 where the court held “. . . we find no error in the

rulings of the Court or in the exercise of the discretion with

which it is vested.” Prior to that quoted statement the Court

had gone at length into the same facts presented at the

hearing on this petition and held the inquiry adequate. The

petitioner does present a new factor, i.e., his health, physical

and mental, at the time of the plea. His present testimony of

his physical and mental well-being is less than credible. His

answers to the court’s questions at that time, his present

complete restatement of his ten minute discussion with

Attorney Delaney, his own statement that he answered the

court’s questions about which Attorney Delaney cautioned

him, do not indicate physical or mental incompetence. The

petitioner relies to a great extent on Boykin v. Alabama, 23 L.

Ed. 2d 274 for the requirement of court ascertainment of a

plea of guilty. In that case the court made no inquiry of the

defendant on a plea of guilty and thereafter the defendant

received the death penalty for the crimes of common law

35

robbery. No evidence has been demonstrated to this court

that the guilty plea was accepted without an affirmative

showing that is was intelligently and voluntarily made.

Boykin, v. Alabama, supra 279. It is interesting to note that

on that date, in answer to specific inquiry by the court he

indicated his satisfaction with the attorney then representing

him.

The petitioner next raises the issue that his counsel had

a conflict of interest that prevented his effective assistance

of the plaintiff. On June 2, 1967 two defendants in another

case, Andrea Sejerman and Sandra Baker, were also repre-

sented by the plaintiff’s counsel on a charge of conspiracy io

obtain money by false pretense before the same judge who

sentenced the plaintiff. On that date counsel stated that the

two women had been led astray by the plaintiff and that their

cooperation led to the plaintiff’s plea of guilty and his sub-

sequent removal from scciety. The plaintiff was sentenced two

weeks later. Significant on this issue are the facts that the

plaintiff knew that his counsel represented the two women in

their case which was a year older than the one from which

he instituted his habeas corpus petition; that the women

and the plaintiff were not co-defendants herein; and that he

did not raise the point in his claim for a new attorney. He —

cannot complain of conflicting interests, if in fact they were

conflicting, with his knowledge of both representations of

counsel. 23 CJS Criminal Law, Section 982(9); People v.

Stock, 23 Ill. 2d 35, 177 N.E. 2d 98. The plaintiff cites Glasser

v. United States, 315 U.S. 60, 70; Campbell v. United States,

352 F. 2d 359, 360; Lollar v. United States, 376 F. 2d 243;

Sawyer v. Brough, 358 F. 2d 70, 73 and People v. Chacon,

73 Cal. Rept. 10, 447 P. 2d 106 all of which involve co-defen-

dants which was not the case here.

_ The petitioner further raises the issue that his plea was

involuntary since he did not have adequate time to obtain

counsel of his own choosing or to prepare his defense. The

36

petitioner never made known his desire for new counsel until

the morning he was to be scntenced, even to counsel then

representing him. New counsel was not present in court

on that day and in fact did not appear until about one week

after he was sentenced. He showed a lack of diligence and a

lack of good faith with the court in doing nothing about

new counsel from May 16, 1967 the date of piea to June 16,

1967 the date of sentencing, or from June 2, 1967 when

Sejerman and Baker were sentenced. It was within the court’s

discretion to grant or deny a continuance for new counsel,

66 ALR 2d 298. See United States v. Yager, 220 F. 2d 795

cert. denied 394 U.S. 963; Peopie v. Adame, 169 Cal. App.

2d 587, 337 P. 2d 477. Again reference is made to the Supreme

Court’s statement in State v. Dukes supra 506 that there was

no abuse of discretion by the court.

The last issue raised is that the physical and mental

disturbances at the time of plea rendered it involuntary.

This matter has been previously covered by the court’s

ruling that the plaintiff’s evidence of his physical and mental

health is not worthy of belief. Since there was no evidence

besides his own testimony on this issue the court is left

with no evidence upon which to base a finding and ruling.

In addition the hospital record indicates that he was respon-

ding fairly well and was completely oriented on May 12, 1967.

The issue has been discussed by both parties as to

whether on a plea of guilty, habeas corpus lies to determine

the voluntariness thereof, particularly in view of the ruling

that such a plea waives all defenses other than that the

indictment charges no offense and waives as well the right to

trial, the incidents thereof and the constitutional guarantees

with respect to the conduct of criminal prosecutions. Brisson

v. Warden, 25 Conn. Supp. 202. While the facts of the crime

may not be examined, the facts attendant upon the entry

of the plea of guilty may be inquired into on habeas corpus.

Doran v. Wilson, 369 F. 2d 505, 507; Commonwealth ex rel

POSEY ERI WIT EIT ALE LE OEE LETS GLI M LE IE LO EDER PSOE LAL EEE GEILE, SLEEP PORE EL NTI EL EDL ELROD EMELINE Nt Ft HERES

37

West v. Myers, 423 Pa. 1 222 A. 2d 918, 921. Machibroda v.

United States, 368 U.S. 487, 493; Trotter v. United States 359 F.

2d 419; United States ex rel Siebold v. Reincke, 362 F. 2d 592,

593. All of the cited cases have to do with coerced pleas and

pleas obtained as the result of tainted confessions which is

not the case here. However it is clear that the circumstance

surreunding the plea of guilty may be the subject of habeas

corpus.

For the reasons stated herein the petition is denied.

LEVINE, J.

January 15, 1970.

JUDGMENT IN HABEAS CORPUS

STATE OF CONNECTICUT

No.161335

CHARLES O. DUKES of the

Town of Somers

County of Tolland

\

SUPERIOR COURT

COUNTY OF HARTFORD

te of i

. e of Connecticut AT TFO

° JANUARY 15, 1970

WARDEN .

CONNECTICUT STATE PRISON

PRESENT HON. IRVING LEVINE, JUDGE

JUDGMENT

This petition for writ of habeas corpus dated July 1,

1969 as amended on October 6, 1969 claiming that the

petitioner was confined in Connecticut State Prison without

law or right came to this Court on July 14, 1969, and thence

to the present time, when the parties appeared and were at

issue to the Court, as on fil». |

.

. . ‘ ‘ ‘ * Bt oP AN A ir Sa CAMS, MO Pear gh

—— s ney ONE,

38

The Court, having heard the parties, finds the issues for

the defendant.

Whereupon it is adjudged that the petition be and hereby

is dismissed.

By the Court,

PATRICIA FRIEDLE,

Assistant Clerk.

FINDING ON HABEAS CORPUS APPEAL

First: The following facts are found:

1. The petitioner was arrested in Hartford in March

1967, and charged with a violation of the Uniform State

Narcotic Drug Act and larceny-receiving stolen gocds.

2. He was represented in the Circuit Court by the law

firm of Zaccagnino, Linardos and Delaney, which firm also

appeared for him in the Superior Court.

3. Peter J. Zaccagnino, Jr., Esq., is an attorney,

practicing law in Hartford, Connecticut, in partnership with

Robert Delaney, Esq., and George Linardos, Esq. An associate

with this firm is Robert Blechman, Esq.

4. In May 1967 Charles Dukes retained Mr. Zaccagnino

to represent him in connection with the charge for which he

is presently incarcerated. Whereupon Mr. Zaccagnino entered

an appearance in the case in the name of his law firm,

Zaccagnino, Linardos & Delaney.

5. Both Mr. Zaccagnino and Mr. Delaney on different

occasions handled the matter on behalf of the petitioner.

6. «At the Superior Court proceedings on May 9, 1967

}

39

the petitioner was represented by Peter J. Zaccagnino, Jr.,

acting as his attorney.

7. Prior to May 9, 1967 Mr. Dukes had discussions

with Mr. Zaccagnino regarding his plea during which time

Mr. Zaccagnino advised him he should plead guilty to the

charges against him. However, Mr. Dukes maintained that

he was innocent and would noi agree to plead guilty.

&. Prior to May 9, 1967 Mr. Zaccagnino discussed the

case a number of times with the State’s Attorney.

9. He was put to plea on one count of the Information,

the nar2otics count.

10. The petitioner pleaded not guilty and elected a jury

trial.

11. On May 10, 1967 the case was continued until May

16, 1967 for trial.

12. On May 9, 1967 Mr. Zaccagnino appeared in the

Superior Court for Hartford County before Johnson, J., with

Mr. Dukes and asked the Court for permission to withdraw

from the case because there was “a slight conflict” between

Mr. Zaccagnino and his client.

13. Mr. Dukes then addressed the Court himself and

advised the Court that he wished to retain counsel other than

Mr. Zaccagnino.

14. Mr. Zaccagnino reiterated his request for permission

to withdraw from the case and asked the Court for a con-

tinuance of one day to enable Mr. Dukes to get other counsel.

15. The Court would not allow Mr. Zaccagnino to with-

draw at that time. Mr. Dukes then entered a plea of not

guilty and elected a trial by a jury of 12. The Court then

Rei Mh oy

Ney ee Ben ete 2-7

Sikiecg titel:

CH ee PR LERLLEID?

it NGS SESS lad CARRE AK LE IEE SEE I SERS BO

40

granted a 24-hour continuance and told Mr. Dukes to be

prepared for trial the next day.

16. Mr. Zaccagnino reiterated his request for permission

to withdraw from the case and asked the Court for a con-

tinuance of one day to enable Mr. Dukes to get other counsel.

17. The Court did not allow Mr. Zaccagnino to withdraw

from the case.

18. On May 9, 1967 when the petitioner left the court

room he was arrested by members of the Hartford Police

Department and taken to the Hartford Police Station.

19. As a result of taking pills, he was admitted to

McCook Hospital on May 11, 1967 and discharged on May

13, 1967.

20. On May 16, 1967 the petitioner appeared with Robert

C. Delaney, Esq., and requested permission of the Court to

change his plea to guilty to the information charging the

narcotics count, and an amendment to the Information

charging the larceny-receiving count.

21. On May 16, 1967 petitioner, with Attorney Robert

C. Delaney assisting him, pleaded guilty to the narcotics

count and larceny-receiving count.

22. Mr. Delaney was familar with the case and had

talked to the petitioner several times about the case and had

handled the case in Circuit Court.

23. Between May 9, 1967 and May 16, 1967 Mr. Zac-

cagnino and Mr. Delaney discussed the case many times and

both of them agreed they should try to convince Mr. Dukes to

plead guilty. During this period, Mr. Zaccagnino tried to

convince Mr. Dukes to plead guilty.

41

24. Prior to the entry of the guilty pleas, the Court

made inquiry as io the voluntariness thereof as follows:

“MR. LABELLE: Yes, Your Honor, and I would

like to ask if inquiry would be made as to change vf

plea and that he be put to plea on toth the original

information again and this amendment also. Excuse me,

Your Honor. The record also ought to appear that Mr.

Delaney is here with him today and he is in the office

of Mr. Zaccagnino. I think the Court might inquire with

respect to the representation since there had been some

indication that counsel had asked to withdraw the other

day.”

“THE COURT: Well now, Mr. Dukes, I want to be

sure that everything is in order here. I was present the

other day, of course, when you were presented and the

problem came up about an attorney. Now I want, now

Mr. Delaney is here, are you fully satisfied with the

services he is rendering you, Mr. Dukes?”

“THE ACCUSED: Yes, sir.”

“THE COURT: You are. And now you know, of

course, Mr. Dukes, that — you know of course that

the State of Connecticut has the burden of proving you

guilty on the charge and you are free to go to trial but

you still wish to change your plea, is that correct?”

“THE ACCUSED: Yes, sir.”

“THE COURT: And do you do this of your own

free will, Mr. Dukes?”

“THE ACCUSED: Yes, sir.”

“THE COURT: And you know the probable con-

sequences of it?”

“THE ACCUSED: Yes.”

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42

“THE COURT: Very well, and no one has induced

you to do this, influenced you one way or the other?

You are doing this of your own free will?”

“THE ACCUSED: Yes, sir.”

“THE COURT: Very well then. We will accept the

change of plea.”

The case was continued to June 2, 1967 for sen-

tencing.

25. The petitioner had a lengthy conversation with Mr.

Delaney, his counsel, prior to entering his plea.

26. The petitioner recalls completely his conversations

held with his attorney, Mr. Delaney, before he entered his

guilty plea.

27. His attorney, Mr. Delaney, on May 16, 1967, did not

notice anything about his physical condition that would im-

pair iis ability to enter his plea.

28. Mr. Zaccagnino was not present in court with the

petitioner on May 16, 1967, when he entered his guilty plea.

29. The petitioner on specfic inquiry by the Court before

he pleaded tcid the Court he was satisfied with the repre-

sentation by Mr. Delaney.

30. On June 2, 1967 the petitioner appeared in Court

with Attorney Zaccagnino for sentencing, but the case was

continued to June 16, 1967 because the probation report was

not finished and because matters to be consolidated from other

counties had not been sent to Hartford.

31. On June 16, 1967 the petitioner was presented for

sentencing, and Attorney Zaccagnino appeared with him.

nal

wo

43

32. On June 16, 1967 Mr. Dukes again appeared before the

Superior Court for Hartford County, Devlin, J. with Mr.

Zaccagnino for sentencing. At that time he advised the Court

that he wanted to withdraw his guilty pleas and that he had

retained other counsel.

33. The request for permission to change the pleas was

denied whereupon Mr. Dukes was sentenced to the State

Prison for not less than 5 nor more than 10 years on the

First Count and for 2 years on the Second Count.

34. Ancillary to these proceedings Mr. Zaccagnino was

representing two girls by the names of Sandra Baker and

Andrea Sejerman for offenses unrelated to the charges to

which Mr. Dukes had pleaded guilty.

35. The petitioner was a co-defendant in the same case

with Sandra Baker and Andrea Sejerman, and they were all

charged with conspiru:y to obtain money by false pretenses.

36. The petitioner in the case in which he was involved

with Sandra Baker and Andrea Sejerman had as his counsel

Attorney Boce Barlow.

37. The petitioner was not represented by Attorney

Zaccagnino or any member of his firm in the case that he was

a co-defendant with Sandra Baker and Andrea Sejerman.

38. Sandra Baker and Andrea Sejerman were not in any

way connected with the petitioner in the case charging him

with violation of the narcotics act and larceny-receiving stolen

goods for which he pleaded guilty.

39. During his remarks on behalf of the Baker and

Sejerman girls, Mr. Zaccagnino told the Court that these

girls had come under the influence of Charles Dukes who had

led them astray. He pointed out that because of their cooper-

ation with the State Police they capitulated Dukes into

seed = Penne Put Piler an) tt

PROS Rat 8 Soe pees f

Si BRN elke KEPLER NREL LAE SAE ATOLL RAS

44

pleading guilty. He noted that because of their cooperation

Dukes would very shortly be removed from society. He

placed the blame for the offenses committed by the girls on

Dukes saying that he was the most culrable since he had all

the instruments with which to cupez the girls.

40. The sentencing remarks by Attorney Zaccagnino in

the Sandra Baker and Andrea Sejerman cases, when he was

referring to Dukes, the petitioner, only had to do with the

relationship between Dukes and the two girls in that particular

case where all three of them were co-defendants.

41. All of the remarks made by Attorney Zaccagnino

concerning Dukes and the two girls only pertained to that

particular case and iad nothing to do with the petitioner’s

case for which he was sentenced, and which is the subject

of this habeas corpus.

42. When the petitioner Dukes hired Mr. Zaccagnino to

represent him on the nazcotics and larceny-receiving case,

the petitioner knew that Mr. Zaccagnino at that time was

representing Sandra Baker and Andrea Sejermar in the con-

spiracy to obtain money by false pretenses case in which the

petitioner was a co-defendant and was represented by Mr.

Barlow.

43. On June 16, 1967, when the petitioner was presented

and sentenced, he indicated to the Court that he had consuited

other counsel, the night before.

44. No other counsel had entered any appearance on be-

half of the petitioner.

45. The petitioner on June 16, 1967, in connection with

his claim about contacting other counsel, did not make any

complaint to the Court that he was not satisfied with Attorney

Zaccagnino because he represented Sandra Baker and Andrea

Sejerman.

45

Second: The following conclusions of fact have heen

reached:

46. The petitioner at all times knew that Attorney Zac-

cagnino represented Sandra Baker and Andrea Sejerman in

the conspiracy to obtain money by false pretenses case, a case

in which the petitioner was also charged as a co-defendant.

47. The petitioner hired Attorney Zaccagnino to repre-

sent him after Attorney Zaccagnino had been retained to

represent the two girls, and the petitioner knew when he

hired Attorney Zaccagnino to represent him that Attorney’

Zaccagnino represented the two girls in the unrelated con-

spiracy to obtain money by false pretenses case, in which he .

was also involve.

48. There was no connection between the conspiracy to

obtain money by false pretenses case and the narcotics and

larceny-receiving case for which the petitioner was sentenced.

49. The remarks made by Attorney Zaccagnino on be-

half of Sandra Baker and Andrea Sejerman at the time of

sentencing on June 2, 1967 concerning the petitioner only

had to do with the petitioner’s connection with the girls in

the conspiracy to cbtain money by false pretenses case.

50. The petitioner never made any request to the trial

court that he be permitted to obtain new counsel because of

any conflict of interest by Mr. Zaccagnino in representing

him in the narcotics and larceny-receiving case while at the

same time Mr. Zaccagnino represented the two girls in the

unelated conspiracy to obtain money by false pretenses case.

51. On May 16, 1967, when he entered his guilty plea,

there was nothing about his physical condition that in any

way impaired his ability to enter his plea.

a

“4

*

&

46

Third: The following conclusions of law have been

reached:

52. The voluntariness of the guilty pleas entered by the

petitioner on May 16, 1967 has already been determined in

State v. Dukes, 157 Conn. 498, 506.

53. The defendant was not denied the effective as-

sistance of counsel, and there was not any conflict of interest

because his counsel represented Baker and Sejerman in an

unrelated case.

54. The plea of guilty by the petitioner on May 16, 1967

was the free and understanding expression of his own wishes.

55. The guilty plea entered by the petitioner on May 16,

1967 was intelligently and voluntarily made.

56. The inquiry made by the Court at the time the

petitioner entered his guilty plea was adequate and sufficient

for the Court to determine that the guilty plea of the

petition r was voluntarily and intelligently made.

Fourth: The petitioner made the following claims of

law respecting the judgment to be rendered upon which the

Court ruled as hereinafter stated:

57. Petitioner’s pleas of guilty were involuntarily made

in that he was denied the effective assistarce of counsel due

to the conflict of interest that his attorney had in representing

two clients whose interests were adverse to his, but the Court

ruled that petitioner could not complaim of a conflict of interest

" he knew of both representations at the time of his plea.

\

58. The record fails to disclose facts sufficient to estab-

lish the voluntariness of the petitioner’s guilty pleas in that

the trial Court did not make adequate inquiry to establish

47

same, but the Court ruled that the trial Court had made

sufficient inquiry.

59. Judgment should enter setting aside petitioner’s

pleas of guilty and granting petitioner’s petition for writ of

habeas corpus.

All of these claims the Court denied.

Fifth: All of the exhibits introduced into evidence on

the trial of this matter together with the transcripts of the

prior proceedings annexed to the Respondent’s Return are

hereby made a part of the record and may be used on the

appeal to the Supreme Court without printing.

LEVINE, J.

Filed May 27, 1970.

Assignment of Errors on Hzbeas Corpus Appeal

The Court erred:

1. In refusing to find the material facts set forth in

paragraphs 17 and 18 of the Draft Finding which were ad-

mitted or undisputed;

2. In refusing to reach the conclusions stated in para-

graphs 21, 22, 23, 24 and 25 of the Draft Finding;

3. In reaching the conclusions of law stated in para-

graphs 52, 53, 54, 55 and 56 of the Finding;

4. In denying the claims of law made by the Petitioner

in paragraphs 57, 58 and 59 of the Finding;

5. In denying the Petition for Habeas Corpus and

rendering judgment for the defendant when the conclusions

Bieie eee A AR EO GAB SRL

48

reached by the Court do not support it in that on the face

of the record a conflict of interest is apparent thereby de-

priving the Petitioner of the effective assistance of counsel.

Petitioner, CHARLES O. DUKES

By JAMES A. WADE

His Attorney

Filed June 8, 1970.

Read June 15, 1970.

LEVINE, J.

SUPREME COURT

HARTFORD COUNTY CLERK’S OFFICE

The above and foregoing is a true copy of the record in

said case to be used in the trial in the Supreme Court.

Attest, ' DOMINIC A. DiCORLETO

Clerk.

OPINION BELOW

CHARLES O. DUKES

v.

WARDEN, CONNECTICUT STATE PRISON

Habeas corpus alleging unlawful imprisonment, brought

to the Superior Court in Hartford County and tried to the

court, Levine, J.; judgment dismissing the appeal, from which

the plaintiff appealed. No error.

James A. Wade, for the appellant (plaintiff).

Richard F. Banbury, assistant state’s attorney, with

whom, on the brief, wa; John D. LaBelle, state’s attorney,

for the appellee (state).

49

LOISELLE, J. The plaintiff pleaded guilty, on May 16,

1967, to two counts in an information charging a violation of

the Uniform State Narcotic Drug Act in the first count, and

larceny in the second count. He was sentenced to state prison

on June 16, 1967.

: This appeal is taken from a judgment rendered J anuary

| 15, 1970, denying his application for a writ of habeas corpus

after a full hearing on the merits. Statutory certification for

the appeal to ‘his court was granted pursuant to General

Statutes § 52-470.

This court has previously affirmed the plaintiff’s convic-

tion in connection with a direct appeal taken by him. State

v. Dukes, 157 Conn. 498, 255 A.2d 614. The plaintiff, however,

has made certain claims involving his federal constitutional

rights in the instant appeal from the judgment denying his

petition for a writ of habeas corpus which were not raised

on direct appeal.

It is well established that a guilty plea which is not made

voluntarily and intelligently constitutes a violation of a de-

fendant’s federal constitutional rights and a judgment of con-

viction based on such a plea cannot stand. See Brady v._

1 United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 25 L. Ed. 2d

747; Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23

L. Ed. 2d 274; McCarthy v. United States, 394 U.S. 459, 466,

89 S. Ct. 1166, 22 L. Ed. 2d 418; Machibroda v. United States,

368 U.S. 487, 493, 82 S. Ct. 510, 7 L. Ed. 2d 473; Kercheval v.

United States, 274 U.S. 220, 223, 47 S. Ct. 582, 71 L. Ed. 1009;

Consiglio v. Warden, 160 Conn. 151, 160, 276 A.2d 773; Wil-

liams v. Reincke, 157 Conn. 143, 148, 249 A.2d 252. The plain-

tiff in his petition alleged that his guilty plea was not volun-

tary and intelligent on several grounds. On appeal, however,

he has asserted in essence only that he was denied the effec-

tive assistance of counsel which rendered his plea involun- _

50

tary, and that the trial court did not make an adequate on-

the-record inquiry into the voluntariness of his plea.

The plaintiff’s primary claim is that the trial court erred

in concluding that he was not denied the effective assistance

of counsel and in overruling his claim that his plea was ren-

dered involuntary by the ineffective assistance of counsel.

The following facts are relevant to this claim. The plain-

tiff was arrested in Hartford in March, 1967 on the two

charges previously mentioned. He was represented in the

Circuit Court by Robert C. Delaney, a member of the law

firm of Zaccagnino, Linardos and Delaney, on the bindover

proceedings. Between the time of the bindover proceedings

and May: 9, 1967, when the plaintiff appeared in the Superior

Court for Hartford County for the entry of his plea, he had

had discussions with Peter J. Zaccagnino, Jr., a member of

the above-named law firm, regarding his plea. At the Supe-

rior Court hearing on May 9, 1967, the plaintiff had further

discussions with Attorney Zaccagnino who advised him to

plead guilty. The plaintiff maintained his innocence and

pleaded not guilty after some further discussion with the

‘4 court, the state’s attorney and Attorney Zaccagnino.

4

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On May 16, 1967, the plaintiff appeared with Attorney

Delaney and requested permission of the court to change his

j plea concerning the two counts in the information. After a

: lengthy discussion with Attorney Delaney and after searching

; questions by the court (Johnson, J.) concerning the change

of plea, the plaintiff pleaded guilty to both charges. Attorney

7 Zaccagnino was not present in court with the plaintiff when

he entered his guilty plea.

On June 2, 1967, the plaintiff appeared in court with

Attorney Zaccagnino for sentencing but the case was con-

tinued to June 16, 1967, at which time the plaintiff again

appeared in court with Attorney Zaccagnino for sentencing.

51

At that time he requested that his plea of guilty to beth

charges be withdrawn but the court denied his request and

proceede<. .o sentence him to the state prison.

Ancillary to these proceedings, Attorney Zaccagnino rep-

resented two girls charged with conspiracy to obtain money

by false pretenses in another unrelated case in which the

plaintiff was a codefendant. The plaintiff was represented in

that case by other counsel. The girls were in no way con-

nected with the instant case in which the defendant pleaded

gnilty. Prior to their sentencing by the court, Attorney Zac-

cagnino made certain remarks on their behalf and stated that

the plaintiff had led the two girls astray; that the coopera-

tion of the two girls had led the plaintiff to plead guilty in

that case and that because of such cooperation the plaintiff

would very shortly be removed from society. He also stated

that the blame for the offenses committed by the two girls

should be placed on the plaintiff as he was the most culpable

since he had all the instruments with which to dupe the girls.

These remarks by Attorney Zaccagnino concerning the plain-

tiff had only to do with the relationship of the plaintiff and

the two girls in that particular case where all three of them

were codefendants, and in no way referred to the instant case

for which he was later to be sentenced.

None of the aforementioned facts found by the court are

attacked by the plairtiif. The plaintiff, however, assigns error

in the trial court’s refusal to find certain paragraphs of his

draft finding. The paragraphs in question state that on April

18, 1967, Attorney Zaccagnins represented the two girls

when they appeared to plead guilty, that on June 2, 1967,

he represented them when they appeared for sentencing, and

that these appearances were before the same judge (Deviin,

J.) before whom the plaintiff in this case later appeared for

sentencing. The plaintiff has printed in his appendix portions

2% transcript of the proceedings at which the girls were

fi

Bikes: GRA a ALS OTE apices een eS

4

a

represented by Attorney Zaccagnino which disclose that the

omitted facts were true. The state in its counterfinding in-

cluded the same requests as were included in the paragrayh

in question of the plaintiff’s draft finding. Moreover, the trial

court in its memorandum of decision takes note of the omit-

ted facts and treats them as undisputed. In light of the fore-

going, we will take cognizance of the facts in question. See

State v. Mahmood, 158 Conn. 536, 539, 265 A.2d 83.

In connection with the plaintiff’s direct appeal this court

held that the trial court did not err in concluding: That his

plea of guilty on May 16, 1967, was voluntary and intelligent;

that he had ample time to change counsel or indicate a desire

again to change his plea between May 16 and June 16; that no

credibile evidence was introduced in support of his request

to change his plea made at the time of sentencing on June

16; that his request to change his plea made at this time was

fur the purpose of delaying sentencing, and that it would not

be fair and just under all the circumstances to allow the

defendant again to change his plea. State v. Dukes, 157 Conn.

498, 506, 255 A.2d 614.

In Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457,

86 L. Ed. 680, the Supreme Court enunciated the principle

that a conflict of interest in the representation of two or more

defendants in the same case by the same counsel constitutes

a denial of effective assistance of counsel. The mere fact,

however, of joint representation of codefendants by a single

attorney is not sufficient to establish ineffective assistance of

counsei in the absence of a showing of an actual conflict of

interest prejudicial to one of the defendants. See United

States v. Youpee, 419 F.2d 1340, 1346 (9th Cir.); United

States v. Sheiner, 410 F.2d 337, 343 (2d Cir.); United States

v. Berriel, 371 F.2d 587 (6th Cir.); Mohler v. United States,

312 F.2d 228, 230 (7th Cir.), cert. denied, 374 U.S. 854, 83

S. Ct. 1922, 10 L. Ed. 2d 1074; Lott v. United States, 218 F.2d

$75, 681 (Sth Cir.); State v. Costa, 155 Conn. 304, 308, 228

53

A.2d 561, cert. denied, 389 U.S. 1044, 88 S. Ct. 789, 19 L. Ed.

2a 837.

The plaintiff claims that he was denied the effective as-

sistance of counse] because there was a conflict of interest be-

tween Attorney Zaccagnino’s representation of him in this

case and his representation of the two defendants in another

entirely unrelated case wherein he was a codefendant while

the instant case was pending. This claim is based on the fact

that Attorney Zaccagnino made derogatory remarks about

the plaintiff to the trial judge before whom he was appearing

on behalf of the two defendants in the other unrelated case,

apparently in an effort to secure lighter sentences for them.

The plaintiff contends that he was prejudiced by these re-

marks because they were made before the same judge who,

two weeks later, sentenced him for the offenses with which

he was charged in this case.

Even assuming, arguendo, that there was a denial of

the effective assistance of counsel because of a conflict of

interest prejudicial to the plaintiff, the only question in this

regard presented by this appeal is whether the conflict ren-

dered the plea involuntary and unintelligent. Since Gideon

v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2.999,

it has been clear that a plea of guilty to a felony charge

entered without counsel is invalid. Brady v. United States,

397 U.S. 742, 748 n.5, 90 S. Ct. 1463, 25 L. Ed. 2d 747: see

White v. Maryland, 373 U.S. 59, 83 S. Ct. 1050, 10 L. Ed. 2d

193; see generally, note, 25 L. Ed. 2d 1025, 1032. Where, as

here, however, a guilty plea is entered upon the advice of

counsel, the plea constitutes an admission of guilt and a

waiver of nonjurisdictional defects and claims, including

federal constitutional claims, which might otherwise be raised

by way of defense, appeal or collateral attack. See United

States ex rel. Rogers v. Warden; 381 F.2d 209, 212 (2d Cir.);

United States v. Doyle, 348 F.2d 715, 718 (2d Cir.), cert.

denied, 382 U.S. 843, 86 S. Ct. 89, 15 L. Ed. 2d 84; United

BERLE LEI LET I IETS ILE LE LOTTI INEM LIE EL, LEE ELE LORY CLT LEIS LTE IER LL ET OE

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States ex rel. Boucher v. Reincke, 341 F.2d.977, 980 (2d Cir.);

Consiglio v. Warden, 160 Conn. 151, 166, 276 A.2d 773; Wil-

liams v. Reincke, 157 Conn. 143, 147, 249 A.2d 252. This

waiver rule means that a claim of the ineffective assistance

of counsel due to an alleged conflict of interest, standing

alone, is not sufficient to call the validity or a guilty plea

and the judgment of conviction based thereon into question.

Curry v. Burke, 404 F.2d 65 (7th Cir.); Vanater v. Boles,

; 377 F.2d 898, 901 (4th Cir.); Martin v. United States, 256

‘ F.2d 245, 349 (5th Cir.), cert. denied, 358 U.S. 921, 79

: S. Ct. 294, 3 L. Ed. 2d 240; In re Shuttle, 125 Vt. 257, 262, 214

A.2d 48. Of course, a guilty plea does not constitute a waiver

of a claim that the plea itself was rendered involuntary and

unintelligem 2s a result of a violation of an accused’s funda-

mental constitutional rights. See Per»sylvania ex rel. Herman

v. Claudy, 350 U.S. 116, 118, 76 S. Ct. 223, 100 L. Ed. 126;

Doran v. Wilson, 369 F.2d 505, 507 (9th Cir.); Williams v.

Reincke, supra, 148. Thus, an allegation of the ineffective

assistance of counsel is a factor to be taken into consideration

in determining whether a guilty plea was voluntary and intel-

ligent, but for the plea and the judgment of conviction based

thereon to be overturned on this ground, it must be demon-

strated that there was such an interrelationship.between the

ineffective assistance of counsel and the plea, that it can be

said the plea was not voluntary and intelligent because of the

ineffective assistance. See Parker v. North Carolina, 397 U.S. _

790, 796, 90 S. Ct. 1458, 25 L. Ed. 2d 785; McMann v. Richard-

son, 397 U.S. 759, 770, 90 S. Ct. 1441, 25 L. Ed. 2d 763; United

States ex. rel. Boucher v. Reincke, supra, 981.

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There is nothing in the record before us which would

indicate that the alleged conflict resulted in the ineffective

assistance of counsel and did in fact render the plea in ques-

tion involuntary and unintelligent. The piaintiff does not

claim, and it is nowhere indicated in the finding, nor could

it be inferred from the finding, that either Attorney Zaccag-

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nino or Attorney Delaney induced ‘the plaintiff to plead

guilty in furtherance of a plan to obtain more favorable con-

sideration from the court for other clients. See United Stutes

ex rel. Taylor v. Rundle, 305 F. Sup. 1036, 1039 (E.D. Pa.).

Neither does the finding in any way disclose, nor is it

claimed, that the plaintiff received misleading advice from

Attorney Zaccagnino or Attorney Delaney which led him to

plead guilty. McMann v. Richardson, supra; Parker v. North

Carolina, supra. Moreover, the trial court specifically found

that when the plaintiff engaged Zaccagnino as his counsel,

he knew that Zaccagnino was representing two defendants

in the unrelated case in which he was a codefendant, that

he never complained to the Court that he was not satisfied

with Attorney Zaccagnino because of this dual representa-

tion, that he was not represented at the entry of his plea by

Attorney Zaccagnino, that he was represented by Attorney

Delaney at the entry of his plea, that he had a lengthy con-

versatioly with Attorney Delaney prior to entering his plea

whiclk. he recalled completely, and that on specific inquiry

by the court before he pleaded guilt:, he told the court that

he was satisfied with the representation by Attorney Delaney.

The court did not err in concluding that the plaintiff’s plea

was not rendered involuntary and unintelligent by the

alleged conflict of interest.

Obviously, the derogatory remarks by Attorney Zaccag-

nino on behalf of his clients in one case about a client whom

he is representing in another case were highly improper.

“When a client engages the services of a lawyer in a given

piece of business he is entitled to feel that, until that business

is finally disposed of in some manner, he has the undivided

loyalty of the one upon whom he looks as his advocate and

his champion.” Grievance Committee v. Rottner, 152 Conn.

59, 65, 203 A.2d 82; see United States ex rel. Taylor v. Rundle,

supra; Commonwealth v. Cullen, 216 Pa. Super. 23, 260 A.2d

818. Attorney Zaccagnino is not a party to these proceed-

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56

ings and the question as to whether or not his conduct was

such as to merit disciplinary action is not before us for de-

cision on this appeal. We de not, accordingly, express any

opinion as to what, if any, disciplinary action should be taken

by the appropriate committee or by the Superior Court. As

we have pointed out, the only question at issue here is

whether counsel’s action rendered the plaintiff’s plea involun-

tary and unintelligent. .

The plaintiff also claims that the trial court erred in

concluding that the on-the-record inquiry made by the trial

court at the entry of. his plea was adequate for the court to

determine that the plea was voluntary and intelligent. The

plaintiff conténds that the court’s inquiry did not satisfy the

requirements of Boykin v. Alabama, 395 U.S. 238, 89 S. Ct.

1709, 23 L. Ed. 2d 274, in which the United States Supreme

Court held that it could not be presumed on the basis of a

silent record that a plea was knowingly intelligent and volun-

tary. This court, however, recently held that the Boykin rule

was not applicable retroactively to cases such as the present

case in -vh'ch the plea was entered prior to the Boykin deci-

sion. Co.-si'lio v. Warden, 160 Conn. 151, 166, 276 A.2d 773.

Moreover, the record in this case is far from being a silent one.

The plaintiff was questioned by the trial court about his sat-

isfaction with his counsel, about his understanding that the

state had the burden of proof, about his understanding that

he was entitled to a trial, and about the probable conse-

quences of his plea. He was also asked directly whether he

was induced or influenced to plead guilty and whether his

plea was of his own free will. In short, the plaintiff’s claim

that the trial court’s inquiry was not adequate to determine

the voluntariness of the plea is without merit.

There remains the state’s contention that the plaintiff

waived his right to raise these claims because he did not

make them on direct appeal. This need not be considered in-

o7

asmuch as we have found that the plaintiff’s claims are with-

out merit.

Although the determination that the plaintiff’s guilty

plea was voluntarily and intelligently made is dispositive of

the appeal, to be certain that there was no injustice to the

plaintiff at the time of sentencing, we have reviewed the

entire transcript of the proceedings of June 2 and June 16,

1967. In addition, the entire record and briefs of the former

appeal were also reviewed. The improper remarks made by

counsel on June 2, 1967, were a repetition of what had already

been told to the court in substance by the state’s attorney.

All of this was contained in great detail in the presentence

report. The sentence imposed by the court on June 16, 1967,

was an adoption of the recommendation made by the state’s

attorney. After the aforementioned thorough review, we are

unable to find any indication of preiudice in respect to the

sentencing of the plaintiff.

There is no error.

In this opinion the other judges concurred.

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JUDGMENT BELOW

This appeal by the petitioner from the judgment of the

Superior Court was filed with the Clerk of said Court on the

3rd day of March, 1970, and said appeal came thence to the

8th day of June, 1970, when the appellant filed his assignment

of errors, as may appear in the certified transcript of record

on file in this Court, and said appeal came thence to this

Court at its term held at Hartford on the first Tuesday of

Aprii, 1971, and thence to the present term when the parties

‘appeared and were fully heard..

And now this Court finds there is no error.

Whereupon it is adjudged that said judgment be affirmed.

Date of Judgment: June 25, 1971.

By the Court,

. THOMAS H. ABRAHAM

Clerk

59

EXBIBIT 1, HABEAS CORPUS

#28080

STATE SUPERIOR COURT i

V. HARTFORD COUNTY

ANDREA SEJERMAN APRIL 18, 1967

BEFORE HONORABLE RAYMOND J. DEVLIN, JUDGE

JOHN D. LABELLE, ESQ.

FOR THE STATE

1 TRC RD RRS Ne a ak ao te El

PETER J. ZACCAGNINO, JR., ESQ.

FOR THE ACCUSED

MR. LABELLE: May inquiry be made as to change of

plea, to the first and third counts, Your Honor?

ASSISTANT CLERK PAUL LEVINE: Andrea Sejerman,

on April 4th, 1967, to an information charging you with con-

spiracy to obtain money by false pretenses, five counts, you

entered a plea of not guilty and elected a trial by jury of

twelve. Do you now wish to withdraw your plea and election

as to the first and third counts?

THE ACCUSED: Yes.

MR. LEVINE: Do you waive reading of the information?

MR. ZACCAGNINO: Waive the reading.

ERE TT TE ERENT LONE iiss meet ee eT LAAT RMR HE

MR. LEVINE: Andrea Sejerman, to the second count

of the information charging you with conspiracy to obtain

money by false pretenses, what is your plea, guilty or not

guilty?

THE ACCUSED: Not guilty. Guilty.

4

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60

MR. LEVINE: To the third count of the information

g charging you with conspiracy to obtain money by false pre-

; tenses what is your plea, guilty or not guilty? |

THE ACCUSED: Guilty.

MR. LABELLE: In view of those pleas, Your Honor,

the State will nolle the other counts. They all occurred the

same day as part of the same set of circumstances.

THE COURT: All right, one, four and five are nolled.

MR. LABELLE: May this be assigned for presentence

report and be set down for disposition on the 19th of May?

THE COURT: Pre-sentence investigation ordered. 19th

of May. |

MR. ZACCAGNINO: If Your Honor please, I hope, I

am making the request from some other counties to have

them sent here. If they are not completed by that day I may

have to request a continuance, because there are some other

counties that have matters pending on the same charge.

THE COURT: All right.

61

EXHIBIT 2, HABEAS CORPUS

#28081

STATE SUPERIOR COURT

V. HARTFORD COUNTY

SANDRA BAKER APRIL 18, 1967

BEFORE HONORABLE RAYMOND J. DEVLIN, JUDGE

JOHN D. LABELLE, ESQ.

FOR THE STATE

PETER J. ZACCAGNINO, JR., ESQ.

FOR THE ACCUSED

MR. LABELLE: May inquiry be made as to change of

plea to the first and third counts?

ASSISTANT CLERK PAUL LEVINE: Sandra Baker,

on April 4th, 1967, to an information charging you with con-

spiracy to obtain money by false pretenses in five counts, you

entered a plea of not guilty and elected a trial by a jury of

twelve. Do you now wish to withdraw your plea and election

as to the first and third counts?

THE ACCUSED: Yes.

MR. LEVINE: Do you waive reading of the informa-

tion?

MR. ZACCAGNINO: Waive the reading.

THE COURT: Is the mother here?

oe Te

MR. ZACCAGNINO: Yes, the mother is here. Step

7 forward.

62

‘MR. LEVINE: Sandra Baker, to the first count of the

information charging you with conspiracy to obtain money by

false pretenses what is your plea, guilty or not guilty?

THE ACCUSED: Guilty.

MR. LEVINE: To the third count of the information

charging you with conspiracy to obtain money by false pre-

tenses what is your plea, guilty or not guilty?

THE ACCUSED: Guilty.

MR. LABELLE: The State will nolle the other three

counts, Your Honor, for the same set of circumstances. |

MR. ZACCAGNINO: There’s also other matters that

will need transfer to this county also.

MR. LABELLE: May this go down for May 19th?

THE COURT: Pre-sentence investigation ordered. Con-

tinued until the 19th.

63

EXHIBIT 3, HABEAS CORPUS

#28080

STATE

V. . SUPERIOR COURT

ANDREA SEJERMAN

4

#28081

ne HARTFORD COUNTY

SANDRA BAKER JUNE 2, 1967

BEFORE HONORABLE RAYMOND J. DEVLIN, JUDGE

GEORGE A. SILVESTER, ESQ.

FOR THE STATE

PETER J. ZACCAGNINO, JR., ESQ.

FOR THE ACCUSED

MR. SILVESTER: If Your Honor pieases, both accused

are represented by Attorney Peter Zaccagnino. Now, let’s

see, in the case cf Sejerman she is twenty-cne. Is that so?

MR. ZACCAGNINO: Yes, Your Honor.

MR. SILVESTER: And in the case of Sandra Baker

she is a minor, nineteen.

MR. ZACCAGNINO: Her mother is here, Your Honor.

MR. SILVESTER: Now as I understand the Situation,

if Your Honor pleases, at a prior time both accused have pled

guilty to charges of conspiracy to obtain money by false pre-

tenses in two counts and the matter’s been referred to the

Adult Probation Department for pre-sentence investigation

and report. In the meantime some warants have been received

from — is it Litchfield County?

64

ASSISTANT CLERK PAUL LEVINE: Yes.

MR. SILVESTER: On which they have to be put to

plea this morning.

MR. LEVINE: Yes. This is Litchfield County #4502,

State of Connecticut versus Sandra M. Baker.

MR. ZACCAGNINO: We'll waive the reading.

MR. LEVINE: -Sandra M. Baker, to the first count of

the information charging you with ttering and publishing

a false, forged and counterfeitea document and signature with

intent to defraud in violation of 53-346, what is your plea,

guilty or not guilty?

THE ACCUSED: Guilty.

MR. LEVINE: To the second count of the information

charging you with uttering a forged instrument what is your

plea, guilty or not guilty?

THE ACCUSED: Guilty.

MR. LEVINE: To the third count of the information

charging you with uttering a forged instrument what is your

plea, guilty or not guilty?

THE ACCUSED: Guilty.

MR. LEVINE: To the fourth count of the information

charging you with conspiracy what is your plea, guilty or not

guilty?

THE ACCUSED: Guilty.

MR. LEVINE: This is Litchfield County #4503, State of

Connecticut verus Andrea Sejerman.

onl _

3

MR. ZACCAGNINO: We’ll waive the reading.

MR. LEVINE: Andrea Sejerman, to the first count of

the information charging you with uttering a forged docu-

ment what is your plea, guilty or not guilty?

THE ACCUSED: Guilty.

MR. LEVINE: To the second count of the information

charging you with uttering a forged instrumcnt what is your

plea, guilty or not guilty?

THE ACCUSED: Guilty.

MR. LEVINE: To the third count of the information

charging you with uttering a forged instrument what is your

plea, guilty or not guilty?

THE ACCUSED: Guilty.

MR. LEVINE: To the fourth count of the information

charging you with conspiracy what is your plea, guilty or not

guilty?

THE ACCUSED: Guilty.

MR. SILVESTER: If Your Hcxor pleases, as far as I

can determine the nature of the involveme-:t with: respect to

both of these young ladies is that they became associated with

one Charles Dukes who is co-accused awaiting sentencing in

this court, and Charles Dukes had paraphernalia with respect

to checks ard money orders and they agreed to cash these

checks with false credentials furnished by him. I can’t tell

Your Honor the extent of the amount that is involved here.

The records of the accused in the case of Sejerman is

attached to the pre-sentence report and apparently she has

no prior convictions, and in the case of the accused Baker

HS STR NE mene

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66

her record is set out on page two of the pre-sentence report,

and apparently here, too, there are no prior convictions.

I’m sorry, I’m advised, Your Honor, there are warrants

from Fairfieid County also.

MR. LEVINE: This is Fairfield County #26756, State

versus Sandra Baker.

MR. ZACCAGNINO: . We'll waive the reading.

MR. LEVINE: Sandra Baker, to the first count of the

information charging you with obtaining money under false

pretenses what is your plea, guilty or not guilty?

THE ACCUSED: Guilty.

MR. SILVESTER: How many counts is that?

MR. LEVINE: I think there are four.

MR. SILVESTER: If Your Honor pleases, I don’t know

exactly what my authority is, but if she pleads to one count

the State would be willing to nolle the other three counts.

_ THE COURT: I think we ought to get them all on the

record and treat them as one.

MR. SILVESTER: Very well.

MR. LEVINE: To the second count of the information

charging you with obtaining money by false pretenses what

is your plea, guilty or not guilty?

THE ACCUSED: Guilty.

MR. LEVINE: To the third count of the information

charging you with obtaining merchandise and money what

is your plea, guilty or not guilty?

We ae : ‘

67

THE ACCUSED: Guilty.

-MR. LEVINE: To the fourth count of the information

charging you with obtaining money under false pretenses

what is your plea, guilty or not guilty?

THE ACCUSED: Guilty.

MR. LEVINE: This is Fairfield County 26 — 16758,

Andrea Sejerman

MR. ZACCAGNINO: Waive the reading.

MR. LEVINE: Andrea Sejerman, to the first count of

the information charging you with obtaining money under

false pretenses what is your plea, guilty or not gvilty?

THE ACCUSED: Guilty.

MR. LEVINE: To the second count of the information

charging you with obtaining money under false pretenses

what is your plea, guilty or not guilty?

THE ACCUSED: Guilty.

MR. LEVINE: To the third count of the information

charging you with obtaining money under false pretenses

what is your plea, guilty or not guilty?

THE ACCUSED: Guilty.

MR. SILVESTER: Are there some from New Haven

there also, Mr. Clerk?

MR. LEVINE: I don’t see any from New Haver.

MR. SILVESTER: May I have a moment, if Your Honor

please? I am advised, Your Honor, there are other outstanding

warrants, especially from New Haven County, which ap-

parently haven’t been forwarded to Hartford.

EIN ae RIAL Stace eck RNY pon iL oe lati

| Beers Bob Pe hk id Ne

68

If Your Honor pleases, the presentence reports are be-

fore Your Honor. There has been no discussion with respect

to penalty, and the matter is being submitted to Your Honor

without recommendation.

MR. ZACCAGNINO: If Your Honor pleases, with re-

spect to these two girls, both of them have had psychiatric

help in the past, and both of them have been to a psychiatrist

after this arrest, and I received the reports too late to file

them with the probation reports. I’d like to have them sub-

mitted to Your Honor for perusal.

MR. SILVESTER: No objection.

THE COURT: All right.

MR. ZACCAGNINO: If Your Honor pleases, as a result

of this arrest Andrea Sejerman spent thirty-three days in

jail waiting to make bond, and Sandra Baker spent sixty days

in jail. As Your Honor knows from looking ‘at the probation

report and from the circumstances involved, both of them

came under the influence of Charles Dukes. Now how they

could get in a position to come under the influence of some-

body like him, if Your Honor pleases, creates the problem

here that I think is the cause of the whole situation.

.Both these girls left their homes, came under the in-

fluence of Dukes and got involved. I think, Your Honor,

though, that the one thing I might say about both of them

that should stand in their good stead, as a result of their

willingness to cooperate with the State Police they capitulated

Dukes into making a plea. { think. Your Honor, since I was

on both sides of the case, having been on the other side on

the other case I can tell Your Honor that it was these girls

that because of their refusal, not refusal, not to cooperate

with Dukes and to testify against him that capitulated him

into taking a plea on which he will shortly be removed from

Ty

69

society, so I think this, Your Honor, the only question here

is what to do with these girls.

I have spent a lot of time with both their parents.

Their parents for the period of time in which they were

away did lose control of these girls, but both the parents,

both mothers of these two girls are in the courtroom today,

and both of them: have a great concern for their daughters.

I have advised them from the beginning it was my thought

the only way they could help themselves the most was going

back with their parents, but here they stand before Your

Honor for punishment. It’s up to Your Honor to decide what

to do. It’s easy to say they are involved with a lot of crimes,

let’s send them to the State Farm, that’s where they should

be. It would seem at first blush that’s where they should go.

Both of them have no records to speak of. The record

they did have, obviously, looking at the charge one knows

it had to be involved with Dukes. Also both cases were nolled,

because of a similar circumstances that involved them the

case was nolled and they weren’t convicted. The only things

that stand before Your Honor are these particular offenses.

I would say, Your Honor, apparently Andrea needs some

out-patient clinic help. I showed the report to her mother and

she has agreed to help her. If Your Honor were to feel that

perhaps the State Farm was not the place for these girls

I think, Your Honor, that normally, under normal circum-

stances that the first time that these cases such as this come

up before Your Honor — I realize there’s a‘lot of charges,

but Your Honor knows from Your Honor’s own experience

on the bench, when there is a great number of offenses they

are like one instance because after they are caught it ceases

the activity, in other words, one or twenty. Granted, society

has been injured more by twenty, however Your Honor can

treat them like one transaction, one instance, because once

the arrest takes place and the mental processes go on about

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attempting to rehabilitate themselves it ceases the activity.

It’s like the housewife who thinks she’s going to steal some-

thing, gets caught once and doesn’t do it again, doesn’t repeat.

I think, Your Honor, with the great interest the parents

have shown in the girls it may be there is some hope for

the girls. I think since both of them have been in jail and

spent some time in jail I’d respectively recommend, Your

Honor, that they be given a long sentence in the State Farm

for Women, not just a short one, and be put on probation.

In this way the State will have great control of them. If

they go to the north end or some place they are told to stay

* out of they will do their term in the State Farm.

We have a probation department. If there is anybody

that can be helped I think it’s the first offender, the one

.that comes for sentencing the first time, and if they can’t

help the first offender I don’t know who they can help. Both

mothers are here and they both express great concern that

hey can help these girls. I think with the proper psychi-

atric help they may open up their eyes that the easy life

is not the easy life they thought it would be.

It’s most difficult. I know Your Honor will have great

difficulty in what to do. As I say, there is more to the case

than meets the eye. I think the one thing is so important,

that they had enough courage to say they were willing to

testify. That’s always been their position with the police,

and as a result of their statements to the police and their

cooperation with the police which led to the downfall of

Dukes, and of course, Your Honor, without going into great

detail, it’s obvious from looking at the report who the most

culpabi. person is because he had all the instruments with

which to dupe these girls.

v

Both of them, looking at the psychiatric reports Your

Honor can see both are easily led, easily swayed. Like the

71

¥

person that gets involved with narcotics they are all the

same cut, they are easily talked into these things. I don’t

say this is in any way at all, Your Honor, a justification

for what they did, but it certainly should go to mitigation

of punishment. I think the one thing I’m trying to impress

upon Your Honor is that these girls did tell the police they

would testify and they are willing to testify in any other

matters pending against Dukes in which they are involved,

which I think, Your Honor, shows that they have the knowl-

edge that they did wrong and are willing to face what is

coming to them, but part of the rehabilitation comes, Your

Honor, when they first realize that they have done some-

thing wrong and they are willing to stand on their two

feet and face what is to be done with them.

I do think both of them have received a great amount

of publicity and a great amount of anguish. What is to

happen to them? Your Honor can see from the psychiatric

reports and all the other reports. I just hope Your Honor

takes into consideration the fact they have spent some time

in jail. I think the taste of jail has taught them more than

anything else that could have happened. I think they have

learned a lesson and are entitled to one chance to put them

back into society, and get this one chance, see if they can

go straight. I think it might be more of a weapon against

them, a heavy sentence over their head and probation, than

actually sending them to jail or the State Farm. |

THE COURT: Counsel, my: only problem is whether

to send them to jail or the State Farm. What do you want?

MR. ZACCAGNINO: I think, Your Honor, they both

would rather go to jail than State Farm. This way they

can be closer to their parents and all the: other things.

THE COURT: One of them spent sixty days in jail

and the other thirty?

72

MR. ZACCAGNINO: Yes, Your Honor. Andrea spent

thirty-three, and Sandra sixty.

THE COURT: Do you want to say anything, Sandra?

THE ACCUSED BAKER: No, Your Honcr.

THE COURT: Do you want to say anything, Andrea?

THE ACCUSED SEJERMAN: No, Your Honor.

2 eR RR RR,

THE COURT: Sentence in both cases will be one year

4 in jail, the execution of which will be suspended after serving

six months, probation for a period of three years. That will

apply concurrently on all the charges.

73

EXHIBIT A — HABEAS CORPUS — RECORD ON

-APPEAL IN CRIMINAL CASE.

In the Superior Court of the State of Connecticut, Hart-

ford County, May Term, A.D. 1967. John D. LaBelle, State’s

Attorney for the County of Hartford, accuses Charles O.

Dukes of Hartford, Connecticut, of Violation of Uniform

State Narcotic Drug Act, and charges that at the City of

Hartford, on or about the 14th day of March, 1967, the said

Charles O. Dukes did possess, have under his control, sell, or

dispense narcotic drugs, to wit: heroin, an opium derivative

(as defined in Section 19-244 of the General Statutes of

Connecticut), in violation of Sections 19-246 and 19-265 of

the 1965 Supplement to the General Statutes.

JOHN D. LABELLE

State’s Attorney

Amendment to Information

The information is herein amended by adding the fol-

lowing count:

Second Count

And the said Attorney further accuses the said Charles

O. Dukes of Larceny, and charges that at the City of Hartford,

on or about the 14th day of March, 1967, the said Charles

O. Dukes stole various articles of a value in excess of Two

Hundred Fifty Dollars ($250) but less than Two Thousand

Dollars ($2,000), in violation of Section 53-63 of the 1965

Supplement to the General Statutes, and Section 53-65 of

the General Statutes, Revision of 1958.

JOHN D. LABELLE

State’s Attorney

pn eee ae

bk. ial ens siti

74

STATE OF CONNECTICUT

No. 28358

STATE SUPERIOR COURT

V. HARTFORD COUNTY

CHARLES O. DUKES JUNE 16, 1967

HON. RAYMOND J. DEVLIN, JUDGE

John D. LaBelle, State’s Attorney for the County of

Hartford accuses Charles O. Dukes of Hartford of Violation

of Uniform State Narcotic Drug Act at the City of Hartford

on or about March 14, 1967 in violation of Sections 19-246

and 19-265 of the 1965 Supplement to the general statutes

as charged in the information and the said attorney further

accuses the said Charles O. Dukes of Larceny (value in

excess of $250.00 but less than $2000.00) at the City of

Hartford on or about March 14, 1967 in Violation of Section

53-63 of the 1965 Supplement to the general statutes, and

Section 53-65 of the general statutes, Revision of 1958 as

charged in the second count of the amendment to infor-

mation as on file will appear.

To both counts of said information on May 16, 1967

the said Charles O. Dukes pleaded and said that he was

guilty.

Whereupon this court doth accordingly adjudge the

said Charles O. Dukes guilty as charged in both counts o£

said information and thai he be imprisoned in the Connecticut

State Prison for not less than five (5) years and not more

than ten (10) years on the first count and two (2) years on

the second count.

DOMINIC A. DiCORLETO

Cierk

75

Appeal

In the above entitled action, the defendant appeals to

the Supreme Court from:

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(a) The judgment rendered therein;

(b) The denial by the Court of the defendant’s re-

quest for a change of plea from “Guilty” to one of “Not

Guilty”; \

(c) The Court’s denial of the defendant’s request for a

trial;

(d) The denial of the Court of the motion of the

attorney to withdraw his appearance on behalf of the de-

fendant; and

(e) The denial of the Court of the defendant’s motion

to ob. ain substitute counsel to represent him.

The Defendant — CHARLES O. DUKES

By: ALPHONSE C. FASANO

His Attorney

Filed June 26, 1967.

Request For Finding

The appellant in the above entitled case respectfully re-

quests a finding of facts for an appeal to the supreme court

of errors and submits the draft finding hereto annexed.

The questions of law which he desires to have reviewed

are:

1. Whether the court erred in denying on May 9, 1967

defendant’s request to engage other private counsel.

76

2. Whether the court erred on May 9, 1967 in refusing

to grant counsel of records motion to withdraw.

3. Whether the court erred on May 9, 1967 in refusing

to grant the defendant’s request for a continuance.

4. Whether the court erred on May 9, 1967 in ordering

the defendant to be put to plea in the light of all the

circumstances.

5. Whether the court erred on May 9, 1967 under the

circumstances in ordering the defendant to proceed with the

trial of the case on May 10, 1967.

6. Whether the court erred on May 9, 1967 in ordering

defendant to proceed with the trial of the case on May 10,

1967 when counsel for the accused represented to the court

that he was notified on Monday, May 8, 1967 to present the

accused on May 9,,.1967 and counsel for the accused believed

that the defendant was to be presented for plea.

7. Whether the court erred on June 16, 1967 in re-

fusing permission to counsel of record for the accused to

withdraw as attorney for the defendant in the light of the

attorney’s representations to the court.

8. Whether the court erred on June 16, 1967 in denying

the defendant’s request to withdraw his plea of guilty in the

light of all the circumstances and representations.

9. Whether or not the plea of guilty by the accused

was a voluntary one free of any undue influence in the light

of the disclosure made to the court on June 16, 1967.

10. Whether the defendant was denied his constitutional

guarantees under the Fifth and Sixth Amendments of the

United States Constitution to have the assistance of counsel

of his own choosing for his defense.

77

11. Whether under the circumstances, the defendant has

been denied due process of law as guafanteed to him under

the United States Constitution.

12. Whether the defendant was denied iis constitutional

right to engage private counsel at his own expense and be

given a reasonable opportunity to prepare for trial.

The Defendant

By: ALPHONSE C. FASANO

His Attorney

Filed August 1, 1967.

Draft Finding

PART I

The fellowing facts are found:

* * *

6. When the Court convened, defendant’s counsel ad-

dressed the Court and represented that between the night

of May 8, 1967 and the morning of May 9, 1967, he had

had a number of conversations with the defendant as a

result of which he was going to petition the Court to formally

withdraw from the case because of a conflict between counsel

of record and the defendant. (T. 1-2)

7. Defendant, whom counsel was representing were

in disagreement on a matter which basically goes to the

heart of counsel’s representation of the defendant.

8. Defendant’s counsel further represented to the Court

that in good conscience and in fairness to the defendant,

who had not yet been put to plea and who was to answer

to a very serious charge and with counsel’s difference with

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the defendant on a matter that may go to the heart of repre-

3 senting the defendant, counsel’s motion to withdraw should

be granted. (T. 2)

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3 9. Counsel further represented to the Court in support

of his request to withdraw that defendant may get other

counsel; that because of the very basic position of an advocate

in behalf of a defendant who must believe in the cause in

which he is aatressing himself and there are some things in

which counsel and defendant are in disagreement which may

prejudice the defendant. (T. 2-3)

10. The State’s Attorney stated to the Court that if

other counsel appears, ready to go to trial on May 9, 1967,

he would have no objection, and until other counsel appears,

there is no basis to withdraw and the State was ready to try

the case that day. (T. 3)

11. Defendant’s counsel represented to the Court that

the State’s Attorney called him on Monday, May 8, 1967

and informed him to be ready on Tuesday, May 9, 1967; that

he understood that to mean to be ready to plead on Tuesday

morning. (T. 10-11)

12. Counsel then represented to the Court that defen-

dant either wants to represent himself or get counsel outside

the County in whom defendant can have more confidence.

(T. 11)

13. That the defendant personally stated to the Court

that he did not want local counsel; that he wanted ar op-

portunity to hire outside counsel. (T. 13)

14. The Court stated to the accused that it was late

to bring this matter up; that the State is ready for trial;

that he was notified for trial and so the trial will proceed.

(T. 13)

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79

15. The defendant replied to the Court that he had

not been put to plea. (T. 13)

16. The Court stated to defendant that he will be put

to plea if the trial is to go forward. (T. 13)

17. The Counsel then requested a continuance of one

day in order to give defendant a chance to go over the case,

read the transcript, advise him, get other counsel for him,

or do something to help defendant; defendant’s ccunsel

further urged that he does not feel that he can do justice

to defendant; that that does not mean that defendant cannot

engage other counsel who may hold views different from

those of counsel; that he will try to assist defendant to engage

other counsel because defendant cannot try a case of this

nature by himself. (T. 14-15)

18. The Court stated to counsel that it is not allowing

him to withdraw.

* * *

21. On May 16, 1967, defendant was presented at the

Criminal Session of the Superior Court for Hartford before

the Honorable Sidney A. Johnson, J udge, for a change of plea

to an amendment to the information. (T. of 5/16/67 p. 1)

* * *

23. Defendant entered a plea of Guilty to the charge of

violation of Uniform State Narcotic Drug Act and to an

amended information charging defendant in the second count

- with larceny. (T. 5/16/67 p. 3)

24. The matter was then referred to the probation de-

partment for pre-sentence report and continued to J une 2,

1967. (T. of 5/16/67 p. 3)

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25. On June 2, 1967 the pre-sentence report was not

ready and the matter was continued to June 16, 1967. (T.

of 6/2/67 p. 1)

26. On June 16, 1967, defendant was presented for

sentence before the Honorable Raymond J. Devlin, a Judge

of the Superior Court at the Superior Court for Hartford

County and with the defendant appeared Peter J. Zaccagnino

as his counsel.

27. Attorney Zaccagnino addressed the Court stating

that defendant had advised him that he has other counsel

from New Haven; that he did not wish to represent defendant

if defendant had no confidence in him; (T. of 6/2/67 p. 1);

that Attorney Fasano was tied up in Court and is requesting

a continuance of one week; that in accordance therewith, |

Attorney Zaccagnino moved for a continuance to Tuesday;

that in view of the serious nature of the charges, defendant

should have counsel of his own choosing (T. 6/2/67 p. 1);

that defendant stated to Attorney Zaccagnino that he did

not have confidence in his handling of the matter and that

he wanted Attorney Fasano to enter the case. (T. 6/16/67

pp. 1-2)

28. The Court then inquired what other counsel could

do that present counsel could not do. (T. 6/16/67 p. 2)

29. The defendant addressed the Court and stated that

he was most interested in justice in this case, that he had

spoken to about twenty attorneys in Hartford who were not

interested in entering the case to represent the defendant

and that he would get more justice by hiring out of town

counsel. (T. of 6/16/67 p. 3)

30. Attorney Zaccagnino then informed the Court that

defendant wanted to change his plea; that that is the reason

he hired new counsel; that while this is the first heard of

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81

it, he did suspect it because of the problem when he did

enter his plea; that maybe he had been a little forceful

with the defendant. (T. of 6/16/67 pp. 4-5)

3i. The Court then asked defendant what he had to

say and defendant stated that he would like to change his

plea; that at the ‘ime he entered his plea, he had just come

out of the hospital; that he had been unconscious fur three

days; that on the day that he entered his plea, he did not

realize at the time actually, to what he was pleading; that

since then, he has been a patient, taking mental examinations

at the Hartford Institute of uiving and that the psychiatrist

had informed him that he needed psychiatry treatments

(T. of 6/16/67 p. 5)

32. The Court denied the defendant’s request to change

his plea.

33. Defendant’s acting counsel, Peter Zaccagnino repre-

sented to the Court that at the time defendant changed

his plea, other pending cases were going to be disposed of

on the same basis consecutive or concurrent sentences would

be imposed; that he had discussed with defendant that it

would be in his best interest to change his plea because he

would then have no other pending matters to confront. (T.

6/16/67 p. 6)

34. The Court then inquired of Dukes what he had

to say and the defendant stated that he was flabbergasted;

that he was puzzled; that he is not guilty of the charges.

(T. of 6/16/67 p. 7)

* * *

PART III

The following rulings were made:

44. On Mzy 9, 1967, Attorney Peter J. Zaccagnino, who

had entered an appearance on behalf of the defendant,

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Charles O. Dukes, moved for permission to withdraw as

counse! for the defendant and the following took place:

MR. LABELLE: This is a matter for trial, Your Honor.

May a Jury panel of thirty-five be ordered? Counsel wishes

to discuss some matter with me, I don’t know whai it is,

but while recess is ordered may a jury panel be called.

THE COURT: Do you want them called down im-

mediately?

MR. LABELLE: If they get one, as soon as we get one

we'll know what we are going to do.

THE COURT: Very well, panel of thirty-five may be

requested. There will be a short recess.

LATER:

MR. ZACCAGNINO: If it please the Court, Your Honor,

on this matter that is now pending before the Court, State of

Connecticut versus Charles Dukes, between last night and

this morning, Your Honor, we have had a number of conver-

sations with Mr. Dukes, and I think that I am going to petition

the Court to formally withdraw from this case because there

happens to be a slight conflict between my client and my-

self, and it’s not financial, Your Honor, it is one basically

that goes to the heart of my representing him, and I think,

Your Honor, in fairness to the defendant, he hasn’t been put

to plea as yet, and this case has just been bound over three

or four weeks ago. it’s a very recent arrest, that in good

conscience and in order for this man which is a very serious

charge, as Your Honor knows, that I think — he tells ine

: this morning that he wants to represent himself and he so

4 wants to represent that to the Court, and in the recess I

} told him the foolishndss of his ways, to try a jury case by

| himself.

83

However, I don’t know what his opinion is right now,

but he also tells me he may get additional counsel. I don’t

know what the Court’s position is on that. I’m going to ask

Your Honor, if Your Honor wants me to put it in writing

I will, to withdraw. The defendant is here, and, Your Honor,

he has full knowledge of thi: and wants to represent to the

Court that is so. We do have this difference that may go

to the heart of my representing him.

I know Mr. LaBelle is opposing my withdrawing at this

date, but as I say to the Court the man has not even been

put to plea as yet and it seems to me that the motion should

be granted because of the very basic position of an advocate

in behalf of a defendant who he must believe in the cause

in which he is speaking for in many ways and there are

some things here that we have a disagreement on with re-

spect to the matter which may in some way prejudice the

defendant. I just think he should have at least -— the trial

should be conducted in such a manner where I don’t feel as

his attorney perhaps something he is doing is wrong. That

is the whole issue, if Your Honor please. Not wron, with

respect to the arrest, I’m not talking about that, but actually

the trial, the conduct of same.

MR. LABELLE: Well, if other counsel appears, Your

Honor, ready to go to trial today, I have no objection to the

withdrawal. Until other counsel appears it seems to me there

isn’t any basis to withdraw. We are ready to try the case

today. (T. of 5/9/67 pp. 1, 2, 3)

Now the next thing is, Your Honor, that the defendant

now wishes to address the Court, Your Honor, on the matter

which I spoke to Your Honor about, and I would just like to

say this to the Court —

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THE COURT: He hasn’t been put to plea.

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MR. ZACCAGNINO: No, he hasn’t been put to plea

yet, Your Honor, and that is the issue here is about my

motion to withdraw, that I understand Mr. LaBelle’s position is

the reason for his particular position *-1t I also understand,

Your Honor, «his defendant’s position } cause it’s an unusua

situation, Your Honor, on a case that is so new that the

same day of plea that you go to trial. I agree Mr. LaBelle

called me on Monday. He said he called me e-rlier, I’m

sure he did. If he said he called me he must have called

my office. I wasn’t there. And he told me to be ready but

it’s an unusual circumstance when they tell me to be ready

and the man hadn’t pled, I took it he’s got to be ready

to plead on Tuesday morning. I knew it was going to be a

trial and so advised the defendant. I’ve been waiting to

address the Court because the Court has been busy on other

matters. He tells me he either wants to represent himself

or get counsel outside of the county that he can have more

confidence in for some reason or other. Now I don’t know

what the reason is but he would like to address the Court

before he is put to plea so he has the right to counsel. If

he is not going to have that right of other counsel to get

somebody to represent himself then I think, Your Honor,

whatever he wants to say I’d like to have him address the

Court because if Your Honor grants my motion he’ll be

without counsel for the moment. Do you want to address

the Court?

THE ACCUSED: Judge, Your Honor, I’d like to ask

the Court —

THE COURT: I can’t hear you.

THE ACCUSED: I’d like to ask the Court severai

questions.

THE COURT: I still can’t hear you.

MR. ZACCAGNINO: Speak up.

85 *

THE ACCUSED: I’d like to ask the Court several

questions to be permitted. Number one, I would like to ask

for the prosecutor of this particular case to withdraw from

the case because if I try the case, I intend to cross-examine

him concerning this case and I’m afraid ii's going to cause

a conflict of interest. I don’t think it would be fair to the

accused.

MR. LABELLE: If Your Honor please, this man is not

going to run this court as long as I have anything to say to

the Court about it. He knows that this case is ready to go

to trial and counsel also knew this as long ago as at least a

week because his office was notified by my office on several

occasions during the middle of last week, Wednesday and

Thursday.

Now if this man wants to try his own case let him try

his own case and let counsel sit with him and advise him

if he wants to try his own case. And if he has other counsel

he wants to get in place of Mr. Zaccagnino then Mr. Zac-

cagnino can leave but as far as the State is concerned we

are ready to go to trial and this story about him going to

cross-examine me in this case is news to me. I don’t intend

to be a witness so I don’t think he’s going to cross-examine

me.

THE COURT: Well, we’ll take that matter up if and

when we try the case. What is your next point?

THE ACCUSED: Number two, Your Honor, with local

counsel I am afraid, well, I know there is going to be re-

sentment. I have reasons to believe that through conver-

sations, and I’d like the opportunity to hire an attorney fror

another state that don’t have no knowledge of the case, of

this specific case. Otherwise I feel as though that is the

reason that I intend to try my own case in the event that

the Court doesn’t grant it.

a enanaas —

86

THE COURT: You wish to try the case yourself, is

that it?

THE ACCUSED: If the Court doesn’t grant me op-

portunity to hire an attorney out of the State, sir, because

I don’t want no resentment upon any attorneys, local at-

torneys.

THE COURT: Well, at this time it’s rather late to

bring that in. The State says it’s ready for trial. You were

notified for trial so we will proceed with the trial. Whether

or not I will allow counsel to withdraw is another thing.

THE ACCUSED: Yes, sir, I haven’t even been put to

plea on this.

THE COURT: Well, you’ll be put tc plea if we go

forward.

THE ACCUSED: Well, that’s all at the present time.

Thank you. (T. of 5/9/67 pp. 10, 11, 12, 13)

* * *

THE COURT: Well, I think what we will do is present

him for plea, give him the opportunity, then we won’t pre-

: sent any evidence today but we'll pick a jury today and I

< will hold you in attendance, counsel.

MR. ZACCAGNINO: If Your Honor pleases, is Your

Honor instructing me that —

i THE COURT: I’m not allowing you to withdraw at this

$ time.

MR. ZACCAGNINO: At this time I don’t know whether,

Your Honor, it meets with this man’s approval, because it

may Your Honor —

87

THE COURT: He says he wants to defend himself.

MR. ZACCAGNINO: Yes, Your Honor. I think he does

want to defend himself as opposed to me representing him

in the matter. I don’t know. If it meets with his approval

I suppose he has a right to defend himself.

THE COURT: He’ll be entitled to ask questions of the

jurors, of the panel, if he wishes, and then we will go to

trial on the factual issues tomorrow. Would you like a short

recess?

MR. ZACCAGNINO: Yes, Your Honor. Excuse me. I

think it might be helpful.

(Short recess. )

LATER:

THE COURT: First, do you want to present the person

for plea, counsel?

MR. LABELLE: Yes, May he be put to plea, Your

Honor.

THE COURT: Put him to plea and election.

MR. ZACCAGNINO: We'll waive the reading of the

information.

MR. O’BRIEN: Charles O. Dukes, how old are you?

THE ACCUSED: Thirty-two year old.

MR. O’BRIEN: Charles O. Dukes, the State of Connect-

icut charges you with violation of the Uniform State Narcotic

Drug Act. How do you plead?

THE ACCUSED: Not guilty.

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88

MR. O’BRIEN: Do you elect a trial by Court or by

Jury?

THE ACCUSED: By jury of twelve.

THE COURT: Very well. (T. of 5/9/67 pp. 1, 2, 3, 10,

11, 12, 13, 15, 16)

‘ * *

45. On May 9, 1967, the defendant moved that the

matter be continued to the following morning and the fol-

lowing took place:

MR. ZACCAGNINO: If Your Honor pleases, I just

might like to say one thing in conclusion. I think this man

has other counsel besides myself involved in another matter,

and I realize that the Court is being tied up, but I think in

view of the st ziousness of the matter, in view of my position,

I was going .o ask for a continuance till tomorrow morning

and two things may occur.

One, it may be that my position, I might be able to

convince my client of. If I can’t at least he will have over-

night to get counsel. I think it’s not an unreasonable delay

of the court because the issues involved are far more

serious than any inconvenience in this instance to the court.

I realize this is inconvenient. I realize Mr. LaBelle told me

this but between last night and this morning a great change

of position has taken place between my client and I in the

matter so in view of that this is something we didn’t plan to

delay the court, it just came about and I know one thing

being part of the case that I can’t see any justification,

Your Honor, for not allowing that time till tomorrow morning

because it may be if it doesn’t develop like I would like it

to develop at least this man will have a chance to go over

this case, read the transcript with me, I’ll advise him, get

othe~ counsel here or do something to help him. I don’t hold

any plea for delay of the court. I sat here for three days

89

waiting for the court to be open to get to this point. I’ve

been here Tuesday, Wednesday and Thursday. I didn’t do

anything in my office all three days. I say to Your Honor

I have been here. I don’t think I have unduly delayed the

court and I don’t think this man has. I think we have come

now to the position where Your Honor has to decide that

with respect to this because I don’t feel Your Honor that

I can do this man justice in this particular issue and that

doesn’t mean that he can’t get other counsel to feel differently

than I do. I think he should have at least tomorrow morning.

I don’t think that is too much delay. I don’t see the great

pressure of one day when a man hasn’t been put to plea.

It’s the first case I have had in this court where the man

has been put to trial on the same day of plea. I do think it

wouldn’t inconvenience the court. I feel very uneasy about

the situation 1 am presenting to the court, Your Honor, and

I don’t know that it might not resolve itself. I don’t think I

can resolve it but I do feel he should have this overnight.

If he can’t get other counsel I’ll assist him in trying to get

him other counsel because I don’t think a man can iry a

case of this nature by himself.

MR. LABELLE: Of course that is a matter of the court’s

discretion, Your Honor. We are prepared to go forward today

and the court might wish to consider in deciding this matter

whether or not a jury if it is going to be a jury trial could

be picked and testimony started tomorrow.

* * *

46. On June 16, 1967, the defendant through Mr. Zac-

cagnino, his counsel of record, stated to the Court that the

defendant had advised counsel of record that he had engaged

other counsel to represent him and that other counsel was

elsewhere engaged and defendant requested a continuance

for one week. The Court denied the motion and the following

took place:

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MR. LABELLE: 28358, Charles Dukes.

MR. ZACCAGNINO: If Your Honor please, prior to this

man being sentenced in this particular matter, I discussed

this momentarily with Mr. LaBelle. Mr. Dukes has advised

me that he has other counsel from New Haven; Mr. Fazzano,

who is representing him, and I don’t intend in any way to

delay the Court. I thought, if he has other counsel, I have

no objection to getting out. In fact, I do not want to repre-

sent Dukes if he doesn’t have any confidence in me. But

Fazzano was tied up, Attorney Fazzano was tied up this

morning and is requesting a continuance for a week, and I

told Mr. Dukes the most I would do for him would be to

put the motion to the Court and suggest it be continued until

Tuesday. I think this, Your Honor, that if he has other

counsel and because of the serious nature of the charges,

that he should have counsel of his own choosing. If he has

no confidence in me, I don’t resent it personally. I understand

his position. But I do feel that this is a very serious situation,

and Mr. LaBelle wants to proceed this morning with sen-

tencing. I don’t quarrel with Mr. LaBelle on that point. I

want to state my position te the Court so that Your Honor

will know what his position is. He told me this morning

that he felt that he didn’t have confidence in my handling

the matter, and he wanted Mr. Fazzano to come in, if that

is the situations=Your Honor, as I say, I don’t have any

personal feeling on it, but I suppose there can be no — you

knew, I can’t represent a man that — or if he doesn’t have

confidence in me is what I want to say. If he feels he wants

Attorney Fazzano, I would like to state to the Court I have

no objection; and as a matter of fact, I welcome it. I don’t want

to be dilatory because this man comes up this morning and

he tells me he has another lawyer, but I feel it is so serious

I don’t know what to tell Your Honor except to tell Your

‘Honor that I should be relieved as counsel when Mr.

Fazzano —

91

THE COURT: What could other counsel do that your

couldn’t do?

MR. ZACCAGNINO: I don’t know, Your Honor; but I

do say this: That it’s become a situation, Your Honor, that I

can’t quite understand either, and he feels, and I stated his

position to Your Honor, so that Your Honor knows. And if

he has anything he wants to say to your Honor, I suppose he

ight to say it to you. I have said what I have got to say.

THE COURT: What do you want to say, Dukes?

THE ACCUSED: Well, I was —

THE COURT: I can’t hear you. Speak up.

THE ACCUSED: I was most interested in justice in

this case, and I spoke to maybe about twenty attorneys from

Hartford, and nobody seemed to want to take the case, repre-

sent me, and it would be more justice to get more justice by

hiring an attorney out of town, which I brought this out be-

fore certain reasons.

THE COURT: Weil, you have a good attorney now.

What is the objection to that?

THE ACCUSED: Well, I would rather have an attorney

oui of town for certain reasons of the case. Your Honor, sir —

THE COURT: Well, I think we ought to go on with

it today.

MR. LABELLE: There. has been no appearance.

THE COURT: No appearance been filed.

MR. LABELLE: It is my understanding from Mr. Faz-

zano, who called my office this morning, called one of the

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92

detectives, that he was just contacted last night. He doesn’t

know Dukes or anything about the cases. Now, no appearance

has been entered. It is simply a disposition. It isn’t a trial,

and I don’t see there is any reason for delaying it further.

He’s had plenty of opportunity when he was put to plea in

this matter, and the court specifically asked him before he

accepted the plea whether or not he was satisfied with his

counsel. And at that time the plea was accepted, he indicated

to the court that he was. I ask that the sentence be imposed

in 28358.

THE COURT: The sentence will be imposed.

(T. of 5/16/67 pp. 1, 2 3)

a * *

47. On June 16, 1967 before the Honorable Raymond J.

Devlin, a Judge of the Superior Court, the defendant moved

for a change of plea which the Court denied and the following

took place:

MR. ZACCAGNINO: He tells me now, Your Honor, he

would like to change his plea, and I thought Your Honor

would like to know that. I don’t suggest that to the Court. He

suggests it, and that is the reason he hired new counsel, and

this comes as a surprise to me. This is the first I heard of it,

but I had a suspicion, Your Honor, that this may take place

because of the problem when he entered the plea. I was may-

be a little forceful. However, Your Honor, it was all dis-

cussed with him, and he does feel, Your Honor, that the

reason he went out of the county was because no lawyer would

properly represent him in this matter in this county. I don’t

believe that, because I put a lot of hours in this case. However,

he does tell Your Honor now that he does want to change his

plea, and he better say it himself, because Your Honor better

talk to him about it.

93

THE COURT: What do you want to say?

THE ACCUSED: Yes, Sir; I would like to change my

plea, Your Honor. At the time I plead, I j ust came out of the

hospital, I think it was a day, and I was unconscious for

three days, and I didn’t realize at the time actually what I

was pleading to. And since then, I am a patient, taking a

mental examination at the Hartford Institute of Living and

also Dr. Harold, a heart specialist, and she said that, the

psychiatrist said that I needed psychiatry treatrnents.

THE COURT: I will deny the motion.

MR. LABELLE: Your Honor has his record here, and

I would simply say he’s, so far as I am aware of, been involved

in criminal activities in this county for 2 substantial period of

time; and on the case, I would Suggest by way of disposition

on the first count not less than five no more than ten years

in the State’s Prison. On the second count, two years, making

an effective sentence of not less than five no mere than

twelve years.

THE COURT: Aill right.

MR. ZACCAGNINO: Your Honor, it puts me at a slight

disadvantage, but I will tell this to the Court: That at the time

that he changed his plea, Your Honor, that some of these

cases, Your Honor, were very tenuous at best, and it is my

understanding that all of the matters were going to be dis-

posed of on the same basis, consecutive or concurrent sen-

tences would be imposed. I think this, Your Honor, that to

sentence this man on one of these counts and for all of them,

the reason, ! induced him, I didn’t induce him, I discussed with

him his best possible interest to change his plea because he

had so many matters pending. Now, proceeding on two mat-

ters, and all these matters are pending, I feel that if Your

Honor does accept the recommendation, which is the five to

a f

gy

94

ten on the sentence, the minimum or the maximum on the

narcotics case, he will have great additional time, and I don’t

know what to tell Your Honor other than the fact I wish

Your Honor would make a note for the record, in the event

I can talk to Dukes, that Your Honor does have knowledge

of these other situations, these other crimes which are of a

similar nature and of a weaker nature, and I would say to

Your Honor the only thing in defense of Dukes, I realize his

record 1s bad and his activities have been bad; however,

when he changed his plea and entered his plea of guilty, he

saved the State considerable cost and expense and time, be-

cause I think about five or six cases pending against him, they

only had one or two cases that were of a strong nature, and

I do think, Your Honor, that I feel having been his counsel,

that I should make this fact known to Your Honor that it was

a matter that Your Honor would normally, under normal cir-

cumstances, in a situation like this, enter concurrent sen-

tences, if, in fact, it was so recommended by the State’s At-

torney; but since he doesn’t want to plea to these other mat-

ters, I would like to make that note for the record, because I

feel at some later date he may have to come back to this court

and see Your Honor or see another judge on these other mat-

ters now pending before it.

SS RRA Mr FR, BPD ca ALE AEA PRCT DA li SRD I

el ed

mae *%

THE COURT: What do you want to say, Dukes?

Pa ERI Rie Ie i

THE ACCUSED: I am rather flabbergasted really, be-

cause I didn’t expect this this morning. It just puzzles me. I

am not guilty of the charges. I am not guilty.

sO cat

4 (T. of 5/16/67 pp. 4, 5, 6, 7)

; PART IV

* * *

The defendant made the following claims:

48. On May 9, 1967, before the Honorable Sidney A.

Johnson, a Judge of the Superior Court, the defendant’s re-

95

quest for the withdrawal of counsel of record on behalf of

the defendant to be replaced by additional counsel of the de-

fendant’s choice at the expense of the defendant because there

existed a conflict between cqunsel of record and the defendant

which goes to the heart of the representation of the defen-

dant by counsel of record.

49. That the disagreement between counsel of record

and the defendant was one which may prove prejudicial to

the defendant if counsel of record is not permitted to with-

draw his appearance.

50. That the defendant should be given an opportunity

to engage other counsel and the matter continued for that

purpose in view of the seriousness of the charges and in view

of the fact that there would be no unreasonable delay or any

inconvenience to the Court and further, in view of the fact

that counsel of record understood that he was to present the

accused for plea and \ot for trial.

51. That it was unreasonable to expect the defendant to

proceed with the trial on the day he entered his plea in the

light of all the circumstances and the seriousness of the

charge.

52. On June 16, 1967, counsel of record requested and

moved for a withdrawal of his appearance because the defen-

dant had advised counsel of record that he had engaged other

counsel who was not able to be present that morning due to

another engagement and requested a continuance of the mat-

ter to the following Tuesday; that because of the serious na-

ture of the charges, the defendant should have counsel of his

own choosing and a reasonable continuance.

53. That on June 16, 1967 the defendant moved for a

change of piea urging that when he entered his plea, he was

forcefully prevailed upon to do so; that he had just come out

96

of the hospital where he had been confined in an unconscious

condition for three days; that he did not realize at the time

the plea was entered, to what defendant was pleading; that

he is a patient taking mental tests at the Hartford Institute

of Living and that he was in need of psychiatric treatments.

The Court denied each of the defendant’s motions and

overruled his claims of law.

Defendant,

By ALPHONSE C. FASANO

His Attorney

Filed August 1, 1967.

Finding

First

The following facts are found:

1. The accused was arrested in Hartford and charged

with a violation of the Uniform State Narcotic Drug Act and

receiving stolen goods.

2. After a hearing in probable cause on April 17, 1967,

the defendant was bound over to the Superior Court on the

narcotics charge and on the receiving charge. (Tr. pp. 1, 2)

3. The law firm of Zaccagnino, Linardos & Delaney ap-

peared on behalf of the defendant in the Superior Court.

4. Counsel for the defendant was notified on Monday,

May Ist, that the case was ready for trial, and was advised

to be ready for trial. (Tr. p. 10)

5. The defendant knew that the case was ready for trial,

and his counsel, Peter J. Zaccagnino, Jr., was present in court

|

97

awaiting trial on Tuesday, May 2nd, Wednesday, May 3rd,

and Thursday, May 4th. (Tr. p. 14)

6. The case was reached for trial on Tuesday, May 9,

1967. (Tr. p. 13)

\

7. On May 9, 1967, John D. LaBelle, State’s Attorney

for Hartford at the Superior Court for Hartford County at

Hartford, before the Honorable Sidney A. Johnson, a Judge

of the said Superior Court, presiding at the Criminal Session

of said court, stated to said court that the case of State v.

Charles O. Dukes, case no. 28358 was ready for trial and re-

quested a jury panel of 35 be ordered. (T. 1)

8. Charles O. Dukes, the defendant, was represented by

Peter J. Zaccagnino, Jr., who was acting as defendant’s attor-

ney (T. 1)

9. Following the request of the State’s Attorney made

to the court for a jury panel, the State’s Attorney advised the

court that the defendant’s counsel wished to discuss some

matter with him, the nature of which he was not aware. (T. 1)

10. The court ordered that a panel of 35 jurors be sup-

plied and declared a recess.

11. Following the recess, the court came into session

(T. 1)

12. When the court reconvened, counsel for the defend-

ant, Peter J. Zaccagnino, J r., told the court that he thought

he was going to petition the court to withdraw from the

case since there happened to be a slight conflict between him

and his client because his client told him he wanted to repre-

sent himself. (Tr. p. 2)

13. Counsel also told the court that his client had tcld

him that he might get additional counsel. (Tr. p. 2)

_—

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98

14. Thereafter, counsel argued to the court concerning

his Motion to Quash the information, his Motion for a Bill of

Particulars, and his Motion to Suppress the evidence. (Tr.

pp. 6-10)

15. After the motions were argued and decided, the de-

fendant addressed the court and told the court that he was

afraid that there was going to be resentment if he had local

counsel. (Tr. p. 12)

16. The defendant then told the court that he would

like the opportunity to hire an attorney from another state.

(Tr. pp. 12, 13)

17. The defendant told the court that if he did not have

an opportunity to hire an attorney from another state, that

he would then like to try his own case. (Tr. p. 12)

18. Counsel for the defendant then requested a contin-

uance of the trial until the next day, May 10th. (Tr. pp. 13,

14)

19. Thereafter, the defendant was put to plea and

pleaded not guilty and elected a trial by a jury of twelve. (Tr.

p. 16) :

20. Counsel requested the court to continue the case to

May 10th, the next day, in order for the defendant to get

other counsel or to represent himself. (Tr. p. 17)

21. Counsel also advised the defendant and the defend-

ant acknowledged that he understood that the case was to

go forward for trial the next day, May 10th. (Tr. pp. 17, 18)

22. When the court continued the case to May 10th, the

court asked the defendant if he understood that he was tec

\\proceed to trial the next morning and the defendant told

the court that he understood that. (Tr. p. 18)

99

23. On May 10, the case was continued to May 16, for

trial. (Tr. p. 1)

24: On May 16, the defendant appeared with Attorney

Robert C. Delaney, a member of the firm of Zaccagnino, Lin-

ardos & Delaney, and requested permission of the court to

change his plea to the information. (Tr. pp. 1, 2)

25. The court was requested by the State’s Attorney to

make inquiry of the defendant with respect to representation

by counsel since there had been prior indication that counsel

had asked to withdraw from the case. (Tr. p. 2)

26. Thereafter, the following occurred:

THE COURT: Well now, Mr. Dukes, I want to be sure

that everything is in order here. I was present the other day,

of course, when you were presented and the problem came

up about an attorney. Now I want, now Mr. Delaney is here,

are you fully satisfied with the services he is rendering you,

Mr. Dukes?

THE ACCUSED: Yes, sir.

THE COURT: You are. And now you know, of course,

Mr. Dukes, that — you know of course that the State of

Connecticut has the burden of proving you guilty on the

charge and you are free to go to trial but you still wish to

change your -plea, is that correct?

THE ACCUSED: Yes, sir.

THE COURT: And you know the probable conse-

quences of it? |

THE ACCUSED: Yes, sir.

THE COURT: Very well, and no one has induced you to

aerate TET fi

100

do this, influenced you one way or the other? You are doing

this of your own free will?

THE ACCUSED: Yes.

THE COURT: Very well then. We will accept the

change of plea.

ASSISTANT CLERK JOEL ELLIS: Mr. Dukes, how

old are you?

THE ACCUSED: Thirty-two years old.

MR. ELLIS: Do you waive reading of the infomation?

MR. DELANEY: We will waive the reading.

MR. ELLIS: To the charge of violation of Uniform

State Narcotic Drug Act what is your plea?

MR. DUKES: Guilty, sir.

MR. LABELLE: May we have the plea to the amend-

ment also?

MR. ELLIS: Do you waive reading of the amended —

MR. DELANEY: Waive reading of the amended in-

formation.

MR. ELLIS: In the amended information you are

charged in the second count with larceny. What is your plea

to that count?

THE ACCUSED: Guilty, sir.

THE COURT: Both pleas are accepted.

MR. LABELLE: May these matters be referred to the

probation department for pre-sentence report, your Honor.

101

THE COURT: June 2nd.

MR. LABELLE: And may they be assigned disposition?

THE COURT: They’ve got quite a few, I understand,

for the 26th.

&

MR. LABELLE: May it be Jue 2nd. .

THE COURT: June 2nd, and continued under the same

bond. °

MR. LABELLE: The bond in the case is twenty thou-

sand dollars.

THE COURT: Very well. Pre-sentence investigation i-

ordered, sentencing for June 2nd on the same bond.

MR. DELANEY: Thank you, your Honor.

27. On June 2, 1967, the defendant appeared in court

before the Hon. Raymond J. Devlin, end Attorney Zaccagnino

appeared with the defendant on that day. (Tr. p. 1)

MR. ZACCAGNINO: If your Honor pleases, this was

set down in the other courtroom before J udge Johnson this

morning, and Mr. Capshaw is still working on the report, and

they tell me, I find through Dukes, they need another two ‘

weeks in which to finish it. Mr. LaBelle asked me to have the ‘

case called here because Judge Johnson is handling divorce 3

matters.

:

} 28. The following occurred:

|

I would also say that all the matters we have asked for con-

solidation haven’t come in, so we'd need a continuance for

that purpose anyway.

MR. SILVESTER: June 16th, if your Honor pleases,

under the same bond?

<n - camel lt

NT TUTE aN

ee ee ee Ea baa ao a O

$ nad eae ee

i

‘

102

THE COURT: June 16th. Same bond.

MR. ZACCAGNINO: Thank you, your Honor.

29. On June 16, 1967, the defendant was presented for

sentence before Hon. Raymond J. Devlin. (Tr. p. 1)

30. At that time Attorney Zaccagnino appeared with

the defendant. (Tr. p. 1)

31. The defendant indicated to the court that he had

consulted otker counsel. (Tr. p. 1)

32. Other counsel had been contacted the night before.

(Tr. p. 3)

33. No other counsel had entered any appearance on

behalf of the defendant. (Tr. p. 3)

34. The defendant did not tell his own counsel about

consulting other counsel until the morning of June 16. (Tr.

p. 2)

35. No other counsel filed any appearance on behalf of

the defendant until June 22, 1967. (File)

36. The defendant requested permission to withdraw

his plea of guilty which request the court denied. (Tr. p. 5)

37. The defendant had not told his counsel that he

wished to change his plea until he made the request to the

court. (Tr. p. 4)

38. No exception was taken to the denial. (Tr. June 16)

39. The defendant requested a continuance until the

following Tuesday whicl: the court denied. (Tr. p. 3)

40. No exceptic:: was taken to the denial. (Tr. June 16)

_

103

41. During the period between May 16 and June 16, the

defendant had requested that charges against him from other

counties be consolidated in Hartford County under General

Statutes, § 54-17a. (Tr. p. 1; pp. 4, 6, 7; file)

42. No evidence was offered by the defendant in con-

nection with any of his motions. (Tr. June 16)

43. The defendant did not offer any medical evidence to

support his motion to change his plea and no medical evi-

dence was attached to the probation report although th > pro-

bation officer requested the defendant to furnish medical

reports. (probation report)

44. The defendant did not make any motion in arrest of

judgment before sentence was imposed or at any other time.

(file)

45. The uefendant did not make any motion to open the

judgment or to vacate the sentence. (file)

46. The probation report is hereby made a court exhibit.

47. The probation report was delivered to counsel for -

the defendant and to the court prior to June 16. (probation

report )

48. The probation report had been read by the court

prior to June 16.

49. The defendant is experienced in criminal matters

and is experienced in court appearances to answer to crim-

inal charges. (probation report and criminal record; Tr. pp.

5, 6)

50. There were several other criminal charges pending

against the defendant in Hartford County, New Haven County

and Fairfield County at the time he was sentenced. (probation

report and criminal record)

194

51. The defendant was involved in narcotic drug traffic ©

in Hartford. (probation report)

52. The case was submitted to the court for sentencing

on an agreed reu.mmendation. (Tr. pp. 4, 5, 6; Tr. pp. 1, 2)

53. The defendant was sentenced to not less than 5 nor

more than 10 years on the narcotics count and to two years

on the larceny receiving count.

54. The deferdant was free on a bond of $20,000 during

all the proceedings in this case. (probation report, file, Tr.

p. 4)

55. Other than the defendant’s request to change his

plea again, no complaint was made to the court about what

had previously occurred before Judge Johnson.

Second

The following conclusions have been reached:

56. The defendant before June 16 at the time the case

was ready for trial had already changed his plea from not

guilty to guilty.

57. The change of plea to guilty on May 16 was the

free and understanding expression of his own wishes.

58. The defendant had from May 16 to obtain other

counsel and to notify the court of his desire to change

counsel.

59. The defendant had told the court on May 16 on

specific inquiry that he was satisfied with his counsel.

60. The defendant appeared in court on June 2, and

did not in any way indicate to the court that he desired to

change counsel or that he desired to change his plea: -

105

61. The defendant did not act in good faith with re-

spect to seeking other counsel.

62. The defendant did not notify the court between May

16 and June 16 that he desired to change his plea.

63. His counsel was surprised on June 16, at the de-

fendant’s request to change his plea. (Tr. p. 14)

64. On June 2 the co

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Appendix — Dukes v. Warden, Conn. State Prison · 406 U.S. 250 | Frix