Daily Archives: May 9, 2007

No right to appellate counsel to challenge denial of petition for new trial

Today, the Appellate Court issued Small v. State [pdf], holding that the trial court did not abuse its discretion in denying appointment of counsel to appeal its decision to deny a petition for new trial. It is interesting for two reasons:

  1. It unequivocally holds that a petition for new trial is not a criminal proceeding; rather it is a civil proceeding
  2. There is currently an unresolved question as to whether there is right to counsel in another collateral proceeding – a Motion to Correct Illegal Sentence. [P.B. 43-22]

The petitioner also asserts that § 51-293 permits a trial court to appoint a special public defender in appropriate cases. Assuming, without deciding, that those statutes provided the petitioner an avenue for requesting court-appointed counsel, we determine that the court did not abuse its discretion in this case because the petitioner is neither statutorily nor constitutionally entitled to court-appointed counsel.

There are statutory exceptions to the rule, however. The biggest being habeas corpus cases. However, as the Court explains,

‘‘[I]ndigent persons accused of a crime must be provided appointed counsel, Gideon [v. Wainwright, 372 U.S. 335, 344, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963)]. But the Sixth Amendment [to the United States constitution] only applies to a defendant’s trial and first appeal as of right, not to appeals afforded on a discretionary basis, collateral proceedings, or civil proceedings . . . .’’ (Emphasis added.) Bourdon v. Loughren, 386 F.3d 88, 96 (2d Cir. 2004), citing Pennsylvania v. Finley, 481 U.S. 551, 555–57, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987).

What this means for right to counsel on Motions to Correct remains to be seen. There are several other criminal opinions issued today, but none piqued my interest quite like this one. They can be found here.

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