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STATE OF CONNECTICUT v. ERNEST FRANCIS

(SC 19378)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,

Robinson and Vertefeuille, Js.*

Argued January 26—officially released August 2, 2016

Margaret Gaffney Radionovas, senior assistant

state’s attorney, with whom, on the brief, were Gail P.

Hardy, state’s attorney, and Edward R. Narus, former

supervisory assistant state’s attorney, for the appellant (state).

Christopher Duby, assigned counsel, with whom,

was Robert O’Brien, assigned counsel, for the appellee (defendant).
Opinion

PALMER, J. The state appeals from the judgment of

the Appellate Court, which reversed the trial court’s

denial of the request of the defendant, Ernest Francis,

for the appointment of counsel to represent him in

connection with the filing of a motion to correct an

illegal sentence arising out of his 1992 conviction of

murder.1In State v. Casiano, 282 Conn. 614, 627–28,

922 A.2d 1065 (2007), this court determined that, pursuant to General Statutes § 51-296 (a),2 an indigent defendant has a right to the appointment of counsel for the

purpose of determining whether a sound basis exists

for him to file a motion to correct an illegal sentence,

and, if such a basis is determined to exist, he also has

the right to counsel for the purpose of pursuing the

motion to its conclusion. On appeal, the state claims

that the Appellate Court incorrectly concluded that the

trial court was required to follow the procedure set

forth in Anders v. California, 386 U.S. 738, 744, 87 S.

Ct. 1396, 18 L. Ed. 2d 493 (1967),3 before it properly

could deny the defendant’s request for the appointment

of counsel on the ground that no sound basis existed

for him to file a motion to correct. We conclude that

the Anders procedure is not strictly required to safeguard the defendant’s statutory right to counsel in the

context of a motion to correct an illegal sentence. We

further conclude, however, that the trial court improperly failed to appoint counsel to assist the defendant

in determining whether there was a sound basis for

him to file such a motion. Because we also conclude

that this error was harmful to the defendant, the case

must be remanded to the trial court so that counsel may

be appointed to represent the defendant in accordance

with the dictates of Casiano.

The opinion of the Appellate Court sets forth the

following undisputed facts and procedural history. ‘‘Following [his direct] appeal, [t]he defendant filed his first

motion to correct an illegal sentence in 2001, in which

he alleged that the sentencing court denied his right to

speak in mitigation of punishment, relied on inaccurate

information and failed to rely on information solely

within the record. The trial court . . . denied the

motion on the merits. On appeal, the Appellate Court

found that the trial court lacked jurisdiction to consider

the motion to correct because the defendant’s claims

did not attack the validity of the sentence, and

remanded the case with direction that the motion be

dismissed. . . . The defendant filed a second motion

to correct that was denied on the merits . . . [on]

November 18, 2005. In that motion, the defendant

alleged that the sentencing court improperly signed his

arrest warrant and presided over his probable cause

hearing. The Appellate Court summarily affirmed the

[denial of the second motion to correct] . . . .’’ (Internal quotation marks omitted.) State v. Francis, 148
Conn. App. 565, 567 n.2, 86 A.3d 1059 (2014).

Thereafter, ‘‘[t]he defendant, representing himself,

filed [a third] motion to correct on July 12, 2010, and

later amended it on October 12, 2010. On September 8,

2010, the date on which the [third] motion was initially

scheduled for a hearing, the court, Gold, J., opened the

hearing by engaging in the following colloquy with the

defendant and [a] public defender, R. Bruce Lorenzen:

‘‘The Court: . . . This is [the defendant’s] third

motion to correct what he alleges is an illegal sentence.

Are you doing this yourself or are you applying for the

public defender to review the claim?

‘‘The Defendant: I’d like to represent myself, Your

Honor.

‘‘The Court: Do you understand you have the right

to apply for a public defender? The public defender

would, pursuant to . . . State v. Casiano, [supra, 282

Conn. 627–28] review the file. If the public defender

felt that there was some potential merit to your claim,

the public defender would be appointed to represent

you. If the public defender said no, that [is, that] he

or she didn’t think there was sufficient likelihood of

success, then you could do it yourself if you wanted

to. But do you want to skip that step and just represent yourself?

‘‘The Defendant: I was assuming that had happened

when I first came in on . . . Casiano so we could save

time. But I mean, if I—I’m going to apply for the public

defender then.

‘‘[Attorney Lorenzen]: Judge—

‘‘The Court: Yes.

* * *

‘‘[Attorney Lorenzen]: [R.] Bruce Lorenzen, Public

Defender’s Office. The [court] clerk had alerted us to

[the defendant’s] claim. I have reviewed it. May I have

just a moment?

* * *

‘‘[Attorney Lorenzen]: Judge, again, I was made aware

of this case, and I’ve had an opportunity to review the

motion as well as some previous files that our office

has been involved in and my concern is not so much

on legal merit but potentially on procedural grounds.

There’s a problem in terms of us being appointed.

‘‘The Court: All right. So are you going to try to get

a special [public defender]?

‘‘[Attorney Lorenzen]: It’s not a conflict situation.

‘‘The Court: It’s not a conflict. So what are you proposing?

‘‘[Attorney Lorenzen]: Judge, I really sympathize with

[the defendant’s] position, and I’ve told him, there’s an
emotional merit to his claim because what he cites in

his petition in terms of occurrences in court, as near

as I can tell, did, in fact, occur. My concern is more,

as the court started this proceeding by saying, that this

is the third [motion], the problem is more whether or

not it’s been previously addressed.

‘‘The Court: All right. I guess—

‘‘[Attorney Lorenzen]: And so in the limited confines

of Casiano, I think it would be my obligation to take

the position that this claim does not have sufficient

merit to justify appointment. But it’s—as I’m probably

sounding, it’s a close call, and it’s not—it’s a question

of whether previous courts have been wrong and the

way they look at things.

‘‘The Court: The first order of business as far as I’m

concerned on a motion to correct is to satisfy Casiano.

So that’s what I inquired [about]. He said yes. Are you

reporting then to the [c]ourt that based on your review

of the allegations and—

‘‘[Attorney Lorenzen]: It’s my considered opinion that

it does not have merit.

‘‘The Court: All right. Well, then, thank you. Then

. . . you understand that means that you’re going to

pursue this either by hiring with the help of a lawyer

that you hire yourself or else you’ll do it yourself?

‘‘The defendant responded to the court’s decision to

deny his request for appointed counsel with the following objection to [Attorney] Lorenzen’s failure to specify

the grounds [on] which he had concluded that the

motion to correct lacked sufficient merit to warrant

appointing counsel thereon:

‘‘The Defendant: I understand the dictates of . . .

Casiano. However, I think that . . . Casiano, everyone is overlooking [Anders] . . . as well as Fredericks

v. [Reincke, 152 Conn. 501, 208 A.2d 756 (1965)], which

is a Connecticut case on when a lawyer feels that a

case has no merit. [Attorney] Lorenzen comes in and

he doesn’t have anything on paper to point . . . [to]

issues that can, that I may be able to raise alternatively

if he feels it has no merit. I think [the] United States

Supreme Court has already spoken in [Anders] that

whenever a lawyer seeks to withdraw or seeks to say

that there’s no merit to a claim, the [s]ixth [a]mendment

[affords a defendant the] right to have [the lawyer] file

an [Anders] brief. I just want to put that on the record.

‘‘The Court: All right.

‘‘The Defendant: I just want to put that on the record.

If the [c]ourt feels that he doesn’t have to file an

[Anders] brief, that’s an issue I’ll take up on appeal.

‘‘The Court: Yes. The [c]ourt’s order is that [Attorney]

Lorenzen has satisfied his responsibilities by having

reviewed your third motion and having represented to
me that he does not feel the appointment of a public

defender or a special public defender is warranted in

this case.

‘‘The defendantthen reiterated his requestthat[Attorney] Lorenzen state the specific grounds [on] which he

had relied in concluding that [the defendant’s] motion

to correct had no merit. This request was denied by

the court in the following . . . colloquy with the

defendant:

‘‘The Defendant: . . . I don’t want to waste too much

time on this issue. What I’m saying is I’d like to know

what [Attorney Lorenzen’s] official position as to why

the case had no merits, so I can address that also.

‘‘The Court: Well—

‘‘The Defendant: So I don’t have to ask for articulation

or rectification for that.

‘‘The Court: I’m not going to require [Attorney Lorenzen] to assume that responsibility. [He] has assessed

it, and it is his considered opinion, [Attorney] Lorenzen’s, that this case, perhaps considering the prior

court’s rulings . . . deny[ing] [the] previous [motions

to correct]. I’m going to accept what [Attorney] Lorenzen says.

‘‘The Defendant: Okay.

‘‘The Court: And I don’t believe he’s under any obligation to explain that any further.

‘‘The Defendant: I would just like to say that the issue

was never addressed. It’s not res judicata or collateral

estoppel because it was never raised before.

‘‘The Court: Oh, I’m not—

‘‘The Defendant: [Attorney] Lorenzen’s position that

it was addressed before as he conveyed to me, this

issue was never addressed.

‘‘The Court: I don’t think that’s what [Attorney] Lorenzen said at all. He mentioned prior proceedings, but he

has assessed the merit of the claim that’s now before

this [c]ourt and has determined there’s an insufficient

likelihood of success and therefore has, pursuant to

Casiano, indicated to me that his office should not

be appointed.

‘‘The defendant went on to represent himself [in connection with] his [third] motion to correct at a hearing

held on February 18, 2011. The court, Gold, J., denied

that motion on the merits . . . on June 7, 2011.’’ (Footnotes omitted; internal quotation marks omitted.) State

v. Francis, supra, 148 Conn. App. 570–74.

Thereafter, the defendant appealed to the Appellate

Court,4 claiming, among other things, that the trial court

had violated his right to counsel under § 51-296 (a) by

denying his request for the assistance of counsel without adhering to the procedure set forth in Anders v.
California, supra, 386 U.S. 744.5 See State v. Francis,

supra, 148 Conn. App. 567, 575. In Anders, the United

States Supreme Court determined that, in orderto effectuate and safeguard an indigent defendant’s constitutional right to the effective assistance of counsel,

‘‘counsel [who] finds his case [on appeal] to be wholly

frivolous, after a conscientious examination of it . . .

should so advise the court and request permission to

withdraw. Thatrequest must, however, be accompanied

by a brief referring to anything in the record that might

arguably support the appeal. A copy of counsel’s brief

should be furnished [to] the indigent [defendant] and

time allowed [for] him to raise any points that he

chooses; the court—not counsel—then proceeds, after

a full examination of all the proceedings, to decide

whether the case is wholly frivolous. If it so finds it

may grant counsel’s request to withdraw and dismiss

the appeal insofar as federal requirements are concerned . . . .’’ (Internal quotation marks omitted.)

State v. Pascucci, 161 Conn. 382, 385, 288 A.2d 408

(1971). The Appellate Court agreed with the defendant

that the trial court should have followed Anders in

denying his request for appointed counsel. State v.

Francis, supra, 569. In reaching its conclusion, the

Appellate Court noted that, although Casiano established an indigent defendant’s right to counsel for the

purpose of determining whether a sound basis exists

for a motion to correct, it did not address the requirements of ‘‘sound basis’’ review, in particular, what steps

appointed counsel must take in advising a defendant

and the trial court of his or her determination that no

sound basis exists forthe filing of the motion to correct,

and the steps the trial court must take to validate that

determination. Id., 583–84. The Appellate Court then

concluded that, ‘‘because the express rationale in Casiano for extending the statutory right to counsel . . .

from appeals to motions to correct is that such motions

are functionally equivalent to appeals as vehicles for

challenging the legality of criminal sentences, [a criminal defendant’s] right to appointed counsel on a motion

to correct must be identical to, and thus be protected

by, the same procedural safeguards [that are] used to

protect [the] right to appointed counsel on appeal.’’

Id., 584.

Having determined that Anders applied to the defendant’s claim, the Appellate Court next considered

whether the requirements of Anders were satisfied in

the present case. The Appellate Court concluded that

they were not satisfied in light of the trial court’s ‘‘failure

to appoint Lorenzen to represent the defendant’s interests by conducting a conscientious first tier of review

of relevant portions of the record in light of controlling

legal authorities to determine whether the defendant’s

claim was wholly frivolous . . . . [The Appellate Court

reasoned that] Lorenzen’s failure to explain his findings

to either the defendant or the court beyond a mere
conclusory statement, as well as the court’s failure to

perform its own independent, second tier of review of

the record in light of controlling legal authorities to

make its own determination as to whether the defendant’s claims were wholly frivolous, violated the minimum requirements of Anders . . . and the defendant’s

right to appointed counsel [in connection with] his

motion under § 51-296 (a).’’ Id., 590. Accordingly, the

Appellate Court reversed the trial court’s denial of the

defendant’s request for the appointment of counsel and

remanded the case to that court for a new hearing on

that motion. See id., 591.

On appeal to this court,6

the state claims that the

Appellate Court incorrectly determined that, pursuant

to § 51-296 (a), the trial court was required to follow

the Anders procedure before denying the defendant’s

request for the appointment of counsel. Specifically,

the state challenges the conclusion of the Appellate

Court that a motion to correct an illegal sentence is

sufficiently similar to a direct appeal that the same

procedures must govern the appointment of counsel in

both contexts. See id., 585. According to the state, the

Anders procedure is not necessary to safeguard the

statutory right to counsel in the limited context of a

motion to correct and will serve only to complicate and

delay the resolution of a motion that was intended to

be an expeditious mechanism for correcting an illegal

sentence. Finally, the state claims that any deficiency

in the process surrounding the trial court’s denial of

the defendant’s request for counsel was harmless

because the defendant’s motion to correct was subsequently denied by that court on its merits.

Although we agree with the state that the Anders

procedure is not needed to safeguard the statutory right

to counsel in the context of a motion to correct an

illegal sentence, our review of the record reveals that

the trial court did not appoint counsel to represent the

defendant even for the limited purpose of determining

whether a sound basis existed for him to file his motion.

We further conclude that this error was harmful to the

defendant, and, consequently, the case must be

remanded to the trial court so that counsel may be

appointed to represent the defendant as required by

Casiano.

Our analysis of this issue is guided by several well

established principles. First, it is axiomatic that ‘‘[t]he

judicial authority may at any time correct an illegal

sentence or other illegal disposition, or it may correct

a sentence imposed in an illegal manner . . . .’’ Practice Book § 43-22. A motion to correct an illegal sentence ‘‘constitutes a narrow exception to the general

rule that, once a defendant’s sentence has begun, the

authority of the sentencing court to modify that sentence terminates. . . . Indeed, [i]n order for the court

to have jurisdiction over a motion to correct an illegal
sentence after the sentence has been executed, the sentencing proceeding [itself] . . . must be the subject of

the attack. . . . Therefore, the motion is directed to

the sentencing court, which can entertain and resolve

the challenge most expediently.’’ (Citations omitted;

footnote omitted; internal quotation marks omitted.)

State v. Casiano, supra, 282 Conn. 624–25.

Although ‘‘the [federal constitutional] right to

appointed counsel extends to the first appeal [as] of

right, and no further’’;7 Pennsylvania v. Finley, 481 U.S.

551, 555, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987); in

Connecticut, a defendant who wishes to file a motion

to correct an illegal sentence ‘‘has a [statutory] right

[under § 51-296 (a)] to the appointment of counsel for

the purpose of determining whether . . . [there exists]

a sound basis for doing so. If appointed counsel determines that such a basis exists, the defendant also has

the right to the assistance of such counsel for the purpose of preparing and filing such a motion and, thereafter, for the purpose of any direct appeal from the

denial of that motion.’’ State v. Casiano, supra, 282

Conn. 627–28.

This court previously has not had occasion to consider the procedure to be employed under Casiano

when an indigent defendant is denied the appointment

of counsel in connection with the filing of a motion to

correct an illegal sentence on the ground that there

exists no sound basis for such a motion. As we previously indicated, the Appellate Court concluded that

Anders should govern such decisions primarily because

‘‘Casiano expressly equated the importance of a motion

to correct to that of a criminal appeal . . . and thus

extended the same right to appointed counsel to the

former as to the latter.’’ State v. Francis, supra, 148

Conn. App. 585. We disagree with that conclusion for

several reasons.8

First, the only issue before this court in Casiano was

whether the phrase ‘‘any criminal action,’’ as used in

§ 51-296 (a); see footnote 2 of this opinion; was broad

enough to encompass a motion to correct an illegal

sentence. See State v.Casiano, supra, 282 Conn. 620–21.

Thus, our sole purpose in considering the importance

of a motion to correct within the overall framework of

our justice system was to determine whether that

motion constitutes a criminal action within the meaning

of § 51-296 (a). See id. We concluded that it does, stating

in relevant part: ‘‘Because a motion to correct an illegal

sentence is heard by the sentencing court and implicates the legality of the proceeding at which the original

sentence was imposed, the motion necessarily bears a

close and direct relationship to the original sentencing

proceeding. The evident nexus between a motion to

correct an illegal sentence and the original sentencing

hearing, coupled with the fact that a criminal defendant

is constitutionally entitled to the assistance of counsel
at that original hearing . . . provides strong support

for the defendant’s claim that a motion to correct an

illegal sentence falls within the purview of ‘any criminal

action’ for purposes of § 51-296 (a).’’ (Citation omitted.)

Id., 625. We further concluded that, ‘‘because our criminal statutes provide for a first appeal as of right, a

defendant who challenges the legality of his or her

sentence on direct appeal is entitled to the assistance

of counsel in connection with that appeal. . . . It

would be odd for the legislature to deny the defendant

the right to counsel merely because the defendant has

chosen a wholly proper, alternate route to challenge

the legality of his sentence, namely, a motion to correct

an illegal sentence, rather than by way of a direct

appeal.’’ (Citation omitted.) Id., 625–26. However, in

resolving the issue before us in Casiano—whether a

motion to correct is a criminal action within the meaning of § 51-296 (a)—we did not consider the entirely

different question of whether the safeguards employed

to protect a defendant’s constitutional right to

appointed counsel on direct appeal are also necessary

to protect the statutory right to counsel in the much

narrower context of a motion to correct an illegal

sentence.

In deciding that question now, we are mindful that the

United States Supreme Court has categorically rejected

the notion ‘‘that . . . Anders . . . should be applied

to a state-created right to counsel [for] postconviction

review just because [Anders] applie[s] to the right to

counsel on first appeal . . . .’’ Pennsylvania v. Finley,

supra, 481 U.S. 556. That court has concluded that,

because there is no underlying constitutional right to

appointed counsel in postconviction proceedings, criminal defendants have ‘‘no constitutional right to insist

on the Anders [procedure] which [was] designed solely

to protect that underlying constitutional right.’’ Id., 557;

see also Austin v. United States, 513 U.S. 5, 8, 115 S. Ct.

380, 130 L. Ed. 2d 219 (1994) (right to Anders procedure

‘‘does not extend to forums for discretionary review’’).

Accordingly, states that elect to provide legal assistance in postconviction proceedings ‘‘have substantial

discretion to develop and implement programs to aid

prisoners seeking to secure postconviction review’’;

Pennsylvania v. Finley, supra, 481 U.S. 559; and any

programs that they do adopt need not include ‘‘the full

panoply of procedural protections that the [c]onstitution requires be given to defendants who are in a fundamentally different position—at trial and on first appeal

as of right. In this context, [the United States Supreme

Court has determined that] the [c]onstitution does not

put [a] [s]tate to the difficult choice between affording

no counsel whatsoever or following the strict procedural guidelines [set forth] in Anders.’’ Id.

Nor do we believe that the state should be put to

such a choice in the context of a postconviction motion
to correct, which bears no resemblance to a direct

appeal in terms of the number and complexity of issues

that may be raised, a fact that necessarily bears on the

question of whether the same procedures are required

to protect the right to effective assistance of counsel

in both situations. Cf. Mathews v. Eldridge, 424 U.S.

319, 334, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) (even when

constitutional rights are implicated, ‘‘[d]ue process is

flexible and calls [only] for such procedural protections

as the particular situation demands’’ [internal quotation

marks omitted]). It goes without saying that direct

appeals are an essential and critical stage of a criminal

proceeding, intended to ensure that any errors committed at trial did not deprive the defendant of his right

to a fair trial. See, e.g., Gaines v. Manson, 194 Conn.

510, 515, 481 A.2d 1084 (1984) (‘‘[a]lthough there is no

constitutional right of appeal . . . the right to appeal,

once granted, invokes so significant a protection of

liberty that it must be made available to all persons

convicted of crimes’’ [citation omitted]). Claims that

may be brought on direct appeal involve every aspect

of the underlying proceeding, from arraignment to sentencing and virtually everything in between. To effectively prepare for such an appeal, therefore, appellate

counsel must engage in an in-depth review of the entire

record and applicable law, screening for all possible

errors—including sentencing errors—that may have

prejudiced the defendant and compromised his right to

a fair trial. See, e.g., McCoy v. Court of Appeals of

Wisconsin, District 1, 486 U.S. 429, 438, 108 S. Ct. 1895,

100 L. Ed. 2d 440 (1988) (‘‘[t]he appellate lawyer must

master the trial record, thoroughly research the law,

and exercise judgment in identifying the arguments that

may be advanced on appeal’’).

In stark contrast, the claims that may be raised in a

motion to correct an illegal sentence are strictly limited

to improprieties that may have occurred at the sentencing stage of the proceeding. See, e.g., State v. Lawrence,

281 Conn. 147, 158, 913 A.2d 428 (2007) (‘‘[i]n order for

the court to have jurisdiction over a motion to correct

an illegal sentence after the sentence has been executed, the sentencing proceeding, and not the trial leading to the conviction, must be the subject of the attack’’).

Thus, we previously have explained that, ‘‘for the trial

court to have jurisdiction to consider the defendant’s

claim of an illegal sentence, the claim must fall into

one of [several specific] categories of claims that, under

the common law, the court has jurisdiction to review.’’

Id., 155. Those claims, which are typically identified by

the defendant prior to any involvement by the court or

appointed counsel, are that the sentence (1) exceeds

the applicable statutory maximum limits, (2) violates a

defendant’s right against double jeopardy,(3)is ambiguous, (4) is internally inconsistent, or (5) was imposed

in an illegal manner. State v. Parker, 295 Conn. 825,

839, 992 A.2d 1103 (2010). Sentences imposed in an
illegal manner ‘‘have been defined as being within the

relevant statutory limits but . . . imposed in a way

[that] violates [a] defendant’s right . . . to be

addressed personally at sentencing and to speak in mitigation of punishment . . . or his right to be sentenced

by a judge relying on accurate information or considerations solely in the record, or his right that the government keep its plea agreement promises . . . .’’

(Internal quotation marks omitted.) Id.

In light of the limited and straightforward nature of

the claims that may be raised in a motion to correct,

the potential merits of such a motion frequently will be

apparent to the court and appointed counsel from a

simple review of the sentencing record. Cf. State v.

Cator, 256 Conn. 785, 804–805, 781 A.2d 285 (2001)(trial

court properly determined that its original sentence for

murder and felony murder violated defendant’s right

against double jeopardy and properly merged convictions); State v. Martin M., 143 Conn. App. 140, 147–48,

70 A.3d 135 (when record did not support defendant’s

claim that sentencing court improperly had relied on

vacated kidnapping conviction, defendant could not

establish that court relied on incorrect information in

sentencing defendant), cert. denied, 309 Conn. 919, 70

A.3d 41 (2013); State v. Mungroo, 104 Conn. App. 668,

684, 935 A.2d 229 (2007) (‘‘[p]lainly, the sentence of five

years imposed by the [trial] court exceeds the statutory

limit forthe crime and must be corrected’’), cert. denied,

285 Conn. 908, 942 A.2d 415 (2008); Gombert v. Warden,

Superior Court, judicial district of Tolland, Docket No.

CV-10-4003855-S (August 22, 2013) (review of plea canvass demonstrated that petitioner’s claims concerning

plea agreement were not part of that agreement).

Accordingly, we can perceive no reason why appointed

counsel, having carefully reviewed the record for possible sentencing errors in light of governing legal principles and determined that none exist, must then be

required to file an Anders brief identifying anything in

the record that might arguably support a countervailing

view, or why the trial court should then be required to

undertake a full and independent review of the record

to determine whether it agrees with defense counsel’s

assessment of the defendant’s claimed sentencing

error.9

In reaching our conclusion, we are also mindful that

‘‘[t]he value of any prophylactic rule . . . must be

assessed not only on the basis of what is gained, but

also on the basis of what is lost.’’ (Internal quotation

marks omitted.) Montejo v. Louisiana, 556 U.S. 778,

793, 129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009). Suffice

it to say that we do not believe thatthe potential benefits

of requiring the Anders procedure in the present context outweigh the costs, most notable among them

being delays that inevitably would occurin the adjudication of a motion intended ‘‘to provide prompt, direct

access to an uncomplicated legal process for correcting
the occasional erroneous or illegal sentence.’’ Gaddie

v. State, 566 N.E.2d 535, 537 (Ind. 1991); see, e.g., United

States ex rel. Green v. Washington, 917 F. Supp. 1238,

1276 (N.D. Ill. 1996) (noting that ‘‘a properly prepared

Anders [brief] is often more time-consuming than a

merits brief’’ and ‘‘imposes special burdens not only on

defense counsel, but also on the appellate tribunal itself,

to scour the record to make certain that no [nonfrivolous] issues lurk there’’). Such delays, moreover, would

undoubtedly have an adverse effect on other criminal

defendants by diverting already limited judicial

resources away from their cases. This concern is no

small matter in view of the fact that there is no limit

to the number of motions to correct that may be filed

by a particular defendant, as demonstrated by the defendant in the present case, who has now filed three

such motions.10

We therefore conclude that, when an indigent defendant requests that counsel be appointed to represent

him in connection with the filing of a motion to correct

an illegal sentence, the trial court must grant that

request for the purpose of determining whether a sound

basis exists for the motion.11 See State v. Casiano,

supra, 282 Conn. 627. If, after consulting with the defendant and examining the record and relevant law, counsel determines that no sound basis exists for the

defendant to file such a motion, he or she must inform

the court and the defendant of the reasons for that

conclusion, which can be done either in writing or

orally. If the court is persuaded by counsel’s reasoning,

it should permit counsel to withdraw and advise the

defendant of the option of proceeding as a self-represented party.12

Finally, we must address the state’s contention that

any deficiency in the procedure employed by the trial

court in denying the defendant’s request for counsel

constituted harmless error because the court ultimately

addressed the merits of the defendant’s motion to correct. We note that this court has never considered

whether the denial of counsel for the purpose of

determining whether a sound basis exists to file a

motion to correct may be a structural error, which is

not subject to harmless error analysis. See, e.g., State

v. Gerardi, 237 Conn. 348, 362, 677 A.2d 937 (1996)

(‘‘[e]rrors that are not subject to harmless error analysis

go to the fundamental fairness of the [proceeding]’’).

We need not decide that question now, however,

because our review of the record persuades us that the

denial was harmful to the defendant.

As we previously indicated, the trial court did not

appoint Lorenzen as the defendant’s counsel so that

he could conduct the sound basis review required by

Casiano. Instead, as the Appellate Court explained,

‘‘Lorenzen was advised of the defendant’s motion by

the [court clerk] prior to the case being called, and he
reviewed the motion and certain other, unspecified files

in his office, never describing in detail to the court the

substance of any discussions with the defendant about

the claims he wished to make in his motion. . . . [A]t

[no] time after making his determination that the defendant’s claim lacked sufficient merit to justify [his]

appointment [as counsel, however, did Lorenzen]

explain his findings to the defendant, as any attorney,

appointed or privately retained, must do, at a bare minimum, out of courtesy, professional loyalty, and respect

for his own client.’’13 State v. Francis, supra, 148 Conn.

App. 588–89. In light of the foregoing, we agree with

the Appellate Court that ‘‘Lorenzen was not appointed

to act as the defendant’s personal counsel for the purpose of determining if the defendant’s motion to correct

was frivolous, but only to serve as a neutral agent of

the court.’’ Id., 589. Accordingly, we cannot accept the

state’s argument that the error was harmless merely

in view of the fact that the defendant’s motion was

subsequently denied because that argument requires us

to decide the harmlessness question on the basis of a

motion that was prepared without the assistance of

counsel. Because the defendant may have been entitled

to the assistance of counsel in preparing the motion,

and because such assistance might have aided the

defendant in identifying a meritorious claim, we cannot

say with any degree of confidence that the denial of

counsel was harmless.

The judgment of the Appellate Court is reversed and

the case is remanded to that court with direction to

remand the case to the trial court with direction to

appoint counsel to represent the defendant, in connection with his motion to correct an illegal sentence, in

accordance with the procedures set forth in this

opinion.

In this opinion the other justices concurred.

* This case originally was scheduled to be argued before a panel of this

court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eveleigh, McDonald, Robinson and Vertefeuille. Although Justice Palmer was

not present at oral argument, he has read the briefs and appendices, and

listened to a recording of oral argument priorto participating in this decision.

1 This court upheld the defendant’s murder conviction in State v. Francis,

228 Conn. 118, 120, 635 A.2d 762 (1993).

2 General Statutes § 51-296 (a) provides in relevant part: ‘‘In any criminal

action, in any habeas corpus proceeding arising from a criminal matter, in

any extradition proceeding, or in any delinquency matter, the court before

which the matter is pending shall, if it determines after investigation by the

public defender or his office that a defendant is indigent as defined under

this chapter, designate a public defender, assistant public defender or deputy

assistant public defender to represent such indigent defendant . . . .’’

3

In Anders, the United States Supreme Court outlined a procedure that

is constitutionally required when, on direct appeal, appointed counsel concludes that an indigent defendant’s case is wholly frivolous and wishes to

withdraw from representation. See Anders v. California, supra, 386 U.S.

744. Under Anders, before appointed counsel may withdraw, he or she must

provide the court and the defendant with a brief outlining anything in the

record that may support the appeal, and the defendant must be given time

to raise any additional relevant points. Id. Thereafter, the court, having

conducted its own independent review of the entire record of the case, may

allow counsel to withdraw, if it agrees with counsel’s conclusion that the

appeal is entirely without merit. Id.
4 The defendant represented himself before the Appellate Court.

5 The defendant also claimed that the trial court deprived him of his right

to appointed counsel under the due process and equal protection clauses

of the state and federal constitutions. State v. Francis, supra, 148 Conn.

App. 575. In light of its conclusion that Anders governs the right to counsel

in connection with a motion to correct, the Appellate Court did not address

those constitutional claims; see id., 576–77 n.11; and, on appeal to this court,

the defendant has not pursued them.

6 We granted the state’s petition for certification to appeal, limited to the

following issue: ‘‘Did the Appellate Court properly determine that the trial

court properly failed to follow a procedure similar to that set forth in Anders

v. California, [supra, 386 U.S. 738], in denying the defendant’s motion to

correct an illegal sentence?’’ State v. Francis, 314 Conn. 908, 100 A.3d

401 (2014).

7 See, e.g., United States v. Myers, 524 Fed. Appx. 758, 759 (2d Cir. 2013)

(no federal constitutional right to counsel in connection with motion to

reduce sentence); United States v. Ramos-Yanac, 454 Fed. Appx. 705, 706

(11th Cir. 2011) (no right to counsel because motion to reduce sentence is

not critical stage of criminal proceedings); United States v. Johnson, 580

F.3d 567, 569 (7th Cir. 2009) (no right to counsel in connection with motion

for sentence reduction); United States v. Harris, 568 F.3d 666, 668–69 (8th

Cir. 2009) (no sixth amendment right to appointed counsel in sentence

modification proceedings); Pierce v. State, 289 Ga. 893, 894, 717 S.E.2d 202

(2011) (no constitutional right to counsel to pursue motion to vacate void

and illegal sentence); Grandison v. State, 425 Md. 34, 55–59, 38 A.3d 352

(2012) (no constitutional right to counsel in connection with motion to

correct illegal sentence), cert. denied, U.S. , 133 S. Ct. 844, 184 L.

Ed. 2d 667 (2013); Gould v. State, 151 P.3d 261, 269 (Wyo. 2006) (motion

to correct is not critical stage of criminal proceedings), cert. denied, 552

U.S. 854, 128 S. Ct. 125, 169 L. Ed. 2d 88 (2007).

8 We are mindful that, in construing a statute, under General Statutes § 1-

2z, we may not look beyond the statutory language if that language, as

applied to the facts of the case, is plain and unambiguous and does not

yield a bizarre or unworkable result. In the present case, however, there is

no dispute that the language of § 51-296 (a) is not plain and unambiguous

with respect to the question presented and, furthermore, that the legislative

history surrounding it is silent on the issue.

9 We note that the Appellate Court, in reaching a contrary conclusion,

also relied on the fact that it ‘‘previously [had] applied the Anders procedure

to motions by appointed counsel to withdraw from other postconviction

proceedings in which their indigent clients had a statutory right to appointed

counsel under § 51-296 (a).’’ State v. Francis, supra, 148 Conn. App. 585.

Specifically, the Appellate Court noted that, in Franko v. Bronson, 19 Conn.

App. 686, 563 A.2d 1036 (1989), overruled in part on other grounds by

Vazquez v. Commissioner of Correction, 88 Conn. App. 226, 869 A.2d 234

(2005), it had held that Anders governed the withdrawal of appointed counsel

in habeas appeals. State v. Francis, supra, 585–87; see Franko v. Bronson,

supra, 691–92. We are not persuaded that Franko supports the Appellate

Court’s determination, however, because the court in Franko provided no

analysis or rationale for its decision, stating simply that, ‘‘[b]ecause the

legislature has created a right to counsel in habeas corpus cases under § 51-

296 [a], and in appeals therefrom . . . the right to appeal in habeas corpus

actions should be extended the same protections as those set out in the

Anders decision.’’ Franko v. Bronson, supra, 692.

10 We note that other courts that have considered the issue of whether to

require the Anders procedure in postconviction proceedings have concluded

that it is not required to safeguard a defendant’s right to counsel in such

proceedings. See People v. Serrano, 211 Cal. App. 4th 496, 499 n.2, 503, 149

Cal. Rptr. 3d 706 (2012) (declining to require Anders-like procedure in

context of appeal from denial of motion to vacate conviction and approving

alternative procedure); see also Commonwealth v. Turner, 518 Pa. 491, 495,

544 A.2d 927 (1988) (declining to mandate Anders procedure in context of

postconviction relief proceeding); cf. Shatney v. State, 755 A.2d 130, 136

(R.I. 2000) (if it is determined that application for postconviction relief is

without merit, then there is no right to counsel in connection with such

application and any existing counsel may withdraw).

11 We emphasize that, upon appointment, counsel must fully satisfy all

applicable professional obligations to the defendant. Although appointed

counsel’s representation of the defendant ultimately may be of limited duration, it cannot be limited in any other respect because the defendant is
entitled to the effective assistance of counsel appointed under § 51-296 (a).

See, e.g., State v. Anonymous, 179 Conn. 155, 160, 425 A.2d 939 (1979)

(‘‘[when] . . . a statute . . . or [rule of practice] . . . mandates the assistance of counsel, it is implicit that this means competent counsel’’).

12 Of course, if the court is not completely satisfied with the reasons for

counsel’s conclusion, it may direct counsel to provide additional substantiation for his opinion or deny counsel’s request to withdraw.

13 Our review of the record also suggests that Lorenzen’s conclusion

regarding the merits of the defendant’s motion was based on the erroneous

assumption that, because the defendant’s motion was his third motion to

correct an illegal sentence, it was barred by the doctrine of res judicata. At

the hearing, Lorenzen stated that his concerns with regard to the motion

were based ‘‘not so much on legal merit but potentially on procedural

grounds.’’ He then went on to state that the problem with the defendant’s

claim ‘‘is more whether or not it’s been previously addressed.’’ The record

also establishes that Lorenzen conveyed these concerns as the reason for

his ultimate conclusion that the motion should not proceed. In its memorandum of decision addressing the merits of the defendant’s motion, however,

the trial court concluded that the doctrine of res judicata did not apply to

the defendant’s motion and that he was not, therefore, precluded from

advancing his claims. Accordingly, the trial court’s determination raises

serious doubts with respect to Lorenzen’s conclusion regarding the merits

of the defendant’s motion to correct.