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STATE OF CONNECTICUT v. KEZLYN MENDEZ
(AC 41116)
Alvord, Prescott and Pellegrino, Js.
Syllabus
Convicted of the crimes of felony murder and robbery in the first degree,
the defendant appealed to this court. Thereafter, the defendant’s court-
appointed appellate counsel filed a motion for leave to withdraw her
appearance, pursuant to the relevant rule of practice (§ 62-9 [d]), on
the ground that an appeal would be wholly frivolous. After the trial
court granted counsel’s motion, counsel sent the defendant a letter
notifying him of the court’s decision and, as required by § 62-9 (d),
provided him with instructions on how to proceed with the appeal as
a self-represented party, including instructions informing the defendant
that he may file a motion for review of the trial court’s decision on the
motion for leave to withdraw. Instead of filing a motion for review, the
defendant filed an appellate brief, claiming that the trial court violated
his right to due process by improperly granting counsel’s motion. The
defendant did not pursue or brief any claim relating to the underlying
judgment of conviction. Held that the defendant’s claim that the trial
court improperly granted his court-appointed appellate counsel’s motion
for leave to withdraw her appearance was not reviewable, the defendant
having failed to comply with § 62-9 (d) (3), which required him to file
a motion for review of the trial court’s decision, and, instead, having
raised the issue in his direct appeal, despite clear instructions from
counsel that he could file a motion for review of the trial court’s decision
on appellate counsel’s motion for leave to withdraw appearance; more-
over, because the defendant did not raise or adequately brief any claim
that directly challenged the judgment of conviction from which he took
this appeal, this court deemed any possible claims abandoned.
(One judge concurring separately)
Argued May 29—officially released October 16, 2018
Procedural History
Information charging the defendant with the crimes
of murder, felony murder, and robbery in the first
degree, brought to the Superior Court in the judicial
district of Hartford and tried to the jury before Mullar-
key, J.; verdict of guilty of the lesser included offense
of manslaughter in the first degree with a firearm, and
of felony murder and robbery in the first degree; there-
after, the court vacated the verdict of guilty as to the
lesser included offense of manslaughter in the first
degree with a firearm; judgment of guilty of felony mur-
der and robbery in the first degree, from which the
defendant appealed; thereafter, the court, Prats, J.,
granted the motion for leave to withdraw an appearance
filed by the defendant’s court-appointed counsel.
Affirmed.
Kezlyn Mendez, self-represented, the appellant
(defendant).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Robin D. Krawczyk, senior assistant
state’s attorney, for the appellee (state).
Opinion
ALVORD, J. In this direct criminal appeal, the self-
represented defendant, Kezlyn Mendez, claims that the
trial court violated his right to due process by improp-
erly granting his court-appointed appellate counsel’s
motion for leave to withdraw her appearance in accor-
dance with Practice Book § 62-9 (d). We affirm the
judgment of the trial court.
Practice Book § 62-9 (d) (1) directs any appointed
appellate counsel who concludes, in accordance with
Practice Book § 43-34, that an appeal would be wholly
frivolous to file under seal with the appellate clerk a
motion for leave to withdraw his or her appearance
along with a memorandum of law, commonly referred
to as an Anders1 brief, in accordance with Practice Book
§ 43-35. ‘‘Counsel shall deliver a notice that a motion
for leave to withdraw as appointed counsel has been
filed, but shall not deliver a copy of the motion and
supporting . . . memorandum of law to opposing
counsel of record.’’ Practice Book § 62-9 (d) (2). The
motion, memorandum, and the transcripts of the rele-
vant proceedings are then referred by the appellate
clerk to the trial court for a decision. Practice Book § 62-
9 (d) (3). If the trial court grants appointed appellate
counsel’s motion to withdraw, a copy of the court’s
decision is filed, under seal, with the appellate clerk,
and counsel must notify his or her former client in
writing of the trial court’s decision, the current status
of the appeal, and the defendant’s responsibilities nec-
essary to prosecute the appeal. Practice Book § 62-9
(d) (3). Section 62-9 (d) (3) further expressly provides
that the trial court’s decision ‘‘may be reviewed pursu-
ant to [Practice Book §] 66-6.’’
A motion for review pursuant to Practice Book § 66-
6 is the proper vehicle by which to obtain review of an
order concerning the withdrawal of appointed appellate
counsel after an appeal has been filed. See Practice
Book § 62-9 (d) (3) (‘‘If the trial court grants the motion
to withdraw, counsel shall immediately notify his or
her former client, by letter, of the status of the appeal
and the responsibilities necessary to prosecute the
appeal. . . . The trial court’s decision shall be sealed
and may be reviewed pursuant to Section 66-6.’’).
In the present case, the defendant’s court-appointed
appellate counsel sent the defendant a letter notifying
him of the court’s decision granting her motion to with-
draw and, as required by Practice Book § 62-9 (d) (3),
provided him with instructions on how to proceed with
the appeal as a self-represented party. Significantly, the
instructions explained: ‘‘You can try filing a [m]otion
for [r]eview of the trial court’s decision on the Anders
motion. ([Practice Book] § 66-6) Remember that you
only have [ten] days to file this from the date of the
notice of the order. If you do, remember to ask for an
extension of time to file your brief until [twenty] or
[thirty] days after the motion is decided.’’
The defendant did not file a motion for review, but
did file an appellate brief. Although the defendant could
have pursued and briefed any appellate claim he
deemed meritorious regarding the underlying judgment
of conviction, he raised in his appellate brief only his
claim that counsel should not have been permitted to
withdraw. He did so, despite the clear instructions
informing him that he could file, pursuant to Practice
Book § 66-6, a motion for review of the trial court’s
decision on appellate counsel’s motion for permission
to withdraw her appearance. Because the defendant
did not comply with Practice Book § 62-9 (d) (3) and,
instead, raised the issue in his direct appeal, we decline
to review his claim. In addition, because the defendant
has not raised or adequately briefed any claim that
directly challenges the judgment of conviction from
which he took this appeal, we deem any possible claims
abandoned. See Joseph v. Commissioner of Correction,
153 Conn. App. 570, 574, 102 A.3d 714 (2014), cert.
denied, 315 Conn. 911, 106 A.3d 304 (2015).
The judgment is affirmed.
In this opinion PELLEGRINO, J., concurred.
1
‘‘In Anders [v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 18 L. Ed. 2d
493 (1967)], the United States Supreme Court outlined a procedure that is
constitutionally required when, on direct appeal, appointed counsel con-
cludes that an indigent defendant’s case is wholly frivolous and wishes to
withdraw from representation. . . . Under Anders, before appointed coun-
sel 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.
. . . 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.’’ (Cita-
tions omitted.) State v. Francis, 322 Conn. 247, 250 n.3, 140 A.3d 927 (2016).
As our Supreme Court has recognized, ‘‘[t]here can be no question that
equal justice requires that the right of appellate review cannot depend on
the amount of money which the defendant has. . . . On the other hand, so
long as an indigent defendant can prosecute an appeal at public expense
and without any possible detriment to himself there is nothing to protect
the public purse or save the appellate courts from a flood of baseless appeals
by indigent defendants except a proper judicial determination as to whether
a proposed appeal at public expense may have some merit or is in fact
frivolous.’’ (Citation omitted.) State v. Pascucci, 161 Conn. 382, 387, 288
A.2d 408 (1971).