author: KATZ, J. SULLIVAN, C. J.,

text:
    STATE OF CONNECTICUT v. TOMMY HAMMOND
    (SC 16424)
    Sullivan, C. J., and Borden, Katz, Palmer and Vertefeuille, Js.
    Argued May 30
    officially released August 21, 2001

      Elizabeth M. Inkster, senior assistant public defender, with whom was Michael S. Alevy, assistant public defender, for the appellant (defendant).

      Robert M. Speclor, deputy assistant state’s attorney, with whom were Elizabeth Bodine, assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, for the appellee (state).
   Opinion

KATZ, J.

The dispositive issue in this certified appeal is whether the investigatory stop of the defendant, Tommy Hammond, by police violated his lights under the fourth amendment to the United States constitution. After reviewing in the aggregate the trial court’s findings, which are not challenged, we conclude that the police did not have the requisite reasonable suspicion before stopping the defendant. Consequently, the evidence recovered as a direct consequence of that unlawful stop should have been suppressed.

The record discloses the following procedural history. The defendant was charged with one count each of possession of cocaine and possession of heroin in violation of General Statutes § 21a-279 (a), one count of possession of heroin with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), and one count of possession of heroin with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b). Following his plea of not guilty, the defendant moved to suppress the narcotics that had been seized from his person and to dismiss the charges, claiming that they were the poisonous fruit of an illegal stop and that, without the illegally seized evidence, there was no basis upon which to continue the prosecution. See General Statutes § 54-56. Following an evidentiary hearing, the trial court, Schimelman J., denied the motions.

Thereafter, the defendant’s case was tried to a jury, which convicted him of all the charges, with the exception of the one count charging him with § 21a-278 (b), on which the jury returned a verdict of guilty on the lesser included offense of possession of heroin with intent to sell in violation of General Statutes § 21a-277 (a). The trial court imposed a total effective sentence of fifteen years consecutive to a previously imposed sentence the defendant was then serving.

The defendant thereafter appealed from the judgment of conviction to the Appellate Court, claiming that the trial court’s denial of his motion to suppress was improper because the investigatory stop violated his fourth amendment rights. The defendant also claimed that the trial court had improperly failed to merge his two separate narcotics convictions for possession of heroin and cocaine under § 21-279 (a) despite the fact that the convictions arose out of the same incident. The Appellate Court affirmed the defendant’s convictions; State v. Hammond, 60 Conn. App. 321, 759 A.2d 133 (2000); and this court granted the defendant’s petition for certification to appeal, limited to the following questions: “(1) Did the Appellate Court properly conclude that the defendant was not illegally seized in violation of the fourth amendment to the United States constitution?”; and “(2) Did the Appellate Court properly conclude that the defendant’s two convictions for possession of narcotics in violation of General Statutes § 21a-279 (a) did not violate the federal and state prohibitions against double jeopardy?” State v. Hammond, 255 Conn. 907, 762 A.2d 911 (2000). We agree with the defendant’s first claim and, therefore, do not address the second certified question.

The record discloses the following facts as found by the trial court. On February 12, 1997, a telephone call was made to the New Haven police substation, located at 26 Charles Street, from an anonymous source complaining of drug sales on the steps of Varick Church, located at 246 Dixwell Avenue, at the intersection of Charles Street and Dixwell Avenue in New Haven, one block from the police station. Herman Badger, the police sergeant who received the telephone call, did not recognize the caller’s voice and could not recall whether the caller was male or female. Badger believed that the caller was excited and upset. The caller indicated only that the two subjects in question were black males of differing heights and gave only a partial clothing description, namely, that one of the subjects wore a blue and white coat, and the other wore a blue and red coat. The church was in an area known for previous drug sales. Badger contacted Officer Richard Zasciurinskas, who was in his marked patrol car, and instructed him to proceed to the church. Badger and Officer Samuel Bagley, both in full uniform, then left the substation on foot and headed toward the church. At the corner of Charles Street and Dixwell Avenue, they observed two subjects who matched the description the caller had given, but neither officer noticed any conduct indicative of narcotics-related activity. As the officers reached the intersection, the subjects under observation, who were approximately twenty to thirty feet from the officers, turned and walked across Dixwell Avenue to the east side of the street and began to walk northbound. Badger radioed Zasciurinskas to stop the subjects. Zasciurinskas, in response, proceeded down Dixwell Avenue in a southerly direction and pulled his marked patrol car across the northbound lane of traffic, onto the sidewalk, in front of the subjects, who then turned around and began walking in a southerly direction on Dixwell Avenue, toward Bagley and Badger. Zasciurinskas then yelled to the men to stop. The three officers surrounded the subjects, and only then did Zasciurinskas observe one of the subjects, later identified as the defendant, drop a bundle to the ground. Pursuant to Badger’s instructions, the subjects were placed in a police vehicle and transported to the police substation on Charles Street. There the contents of one of the nine envelopes contained in the seized bundle tested positive for narcotics and the defendant formally was placed under arrest. A search of the defendant’s person incident to his arrest resulted in the seizure of one plastic bag containing cocaine and approximately $1100 in cash. The defendant told the police that the cocaine was for his own personal use.

On the basis of these facts, the trial court determined that the defendant had been “seized for [the] purpose of investigative detention at some point before he discarded the contraband in question,” and that the police officers had effected a valid stop under Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), because the officers’ observations of the subjects on the sidewalk, in the vicinity of the church, sufficiently corroborated the details of the anonymous tip. Additionally, the trial court concluded that the defendant’s act of turning and walking away from the officers, in a high crime area known for narcotics trafficking, provided additional support for the validity of the stop.

The defendant does not challenge the trial court’s factual findings. Rather, he challenges the legal conclusion that the stop and detention effectuated in this case was supported by a reasonable and articulable suspicion, a determination that is subject to plenary review. See State v. Geisler, 222 Conn. 672, 694-95 n. 15, 610 A.2d 1225 (1992). The scope of that inquiry is well settled. “Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion. . . . The police officer’s decision . . . must be based on more than a hunch or speculation. . . . In justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” (Internal quotation marks omitted.) State v. Trine, 236 Conn. 216, 224-25, 673 A.2d 1098 (1996).

In the context of an anonymous tip, as in this case, a “totality of the circumstances” test is used, requiring independent police investigation to corroborate details because “[u]nlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, see Adams v. Williams, 407 U.S. 143, [146-47, 92 S. Ct. 1921, 32 L. Ed. 2d 612] (1972), ‘an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity,’ Alabama v. White, [496 U.S. 325, 329, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990)]. As we have recognized, however, there are situations in which an anonymous tip, suitably corroborated, exhibits ‘sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.’ Id., [327].” Florida v. J. L., 529 U.S. 266, 270, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000).

Therefore, the question we confront in the present case, as the Supreme Court did in Florida v. J. L., supra, 529 U.S. 270, is whether the tip implicating the defendant had sufficient indicia of reliability. Two cases dominate this analysis. The first is Alabama v. White, supra, 496 U.S. 325, in which the United States Supreme Court examined both the extent to which police were able to corroborate the details disclosed in the tip and the predictive nature of those details. In discussing the nature of the anonymous tip, the court was careful to point out all of the details that it contained, emphasizing, in particular, the critical importance of the tipster’s ability to predict the suspect’s future behavior. Id., 331-32. The court noted therein that, when the police responded to the anonymous tip that a female subject would be leaving a specific location, at a specific time, driving a Plymouth station wagon with a broken taillight, to a particular destination, and that the car would contain a brown attache case holding a significant amount of narcotics, they observed, upon arrival at the identified location, a female get into a Plymouth station wagon with a broken taillight, and drive using the most direct route to the specified destination. Id., 327. The police stopped the vehicle and, with the driver’s consent, searched the car and discovered the contraband as the tip had predicted. Id.

In concluding that the stop was justified, the court emphasized the details provided in the tip and the tipster’s accuracy in predicting the suspect’s future behavior. “[T]he anonymous [tip] contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted. . . . The fact that the officers found a car precisely matching the caller’s description in front of the [building address given by the informant] is an example of the former. Anyone could have predicted that fact because it was a condition presumably existing at the time of the call. What was important was the caller’s ability to predict [the defendant’s] future behavior, because it demonstrated inside information—a special familiarity with [the defendant’s] affairs. The general public would have had no way of knowing that [the defendant] would shortly leave the building, get in the described car, and drive the most direct route to [the destination given by the informant]. Because only a small number of people are generally privy to an individual’s itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual’s illegal activities. . . . When significant aspects of the caller’s predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 332. Therefore, while acknowledging that it was “a close case,” the court concluded that, “under the totality of the circumstances, the anonymous tip, as corroborated, exhibited sufficient indicia of reliability to justify the investigatoiy stop of [the defendant’s] car.” Id.

Conversely, in Florida v. J. L., supra, 529 U.S. 274, the Supreme Court, relying on the same standards, concluded that the anonymous tip at issue therein failed to provide predictive information and was not sufficiently corroborated. In that case, an anonymous caller reported to the Miami-Dade police that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. Id., 268. The police knew nothing about the informant. Id. Sometime after the police received the tip, two officers were instructed to respond. When the officers arrived at the bus stop, about six minutes later, they saw three black males, one of whom wore a plaid shirt, “just hanging out [there].” (Internal quotation marks omitted.) Id. The officers had no reason, apart from the tip, to suspect any of the three men of illegal conduct, the officers did not see a firearm, and the defendant made no threatening or otherwise unusual movements. Id. Nevertheless, one of the officers frisked the defendant, seizing a gun from his pocket, while “[t]he second officer frisked the other two individuals, against whom no allegations had been made, and found nothing.” Id.

The court concluded that the tip lacked the moderate indicia of reliability present and essential to the court’s decision in Alabama v. White, supra 496 U.S. 332. Florida v. J. L., supra, 529 U.S. 271. “The anonymous call concerning [the defendant] provided no predictive information and therefore left the police without means to test the informant’s knowledge or credibility. That the allegation about the gun turned out to be correct does not suggest that the officers, prior to the frisks, had a reasonable basis for suspecting [the defendant] of engaging in unlawful conduct: The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search. All the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about [the defendant]. If White was a close case on the reliability of anonymous tips, this one surely falls on the other side of the line.” Id.

Guided by the Supreme Court’s decision in White, this court, in State v. Torres, 230 Conn. 372, 383, 645 A.2d 529 (1994), faced with an anonymous tip, looked to the totality of the circumstances surrounding the police action to determine whether the police had a reasonable and articulable suspicion to justify the stop at issue. See State v. Aillon, 202 Conn. 385, 399, 521 A.2d 555 (1987). Specifically, this court noted: “[T]he anonymous tip was telephoned to the police and relayed by a dispatcher to the arresting officer. The tip included the name of the person who would be driving the automobile, the model, year and color of the automobile, the fact that the automobile bore Massachusetts license plates, the specific destination of the automobile, and the approximate time the automobile would be passing through the Middletown area on its way to Hartford. Evety aspect of the tip was corroborated by [the state trooper] during the period before and after he stopped the defendant’s car. The tip not only revealed facts in existence at the time of the call, but also predicted the defendant’s future behavior, namely his destination and the approximate time of his arrival.” State v. Torres, supra, 383. Accordingly, we concluded that this predictive element “was a strong indication of the reliability of the tip, ‘because it demonstrated inside information—a special familiarity with [the defendant’s] affairs. . . . Because only a small number of people are generally privy to an individual’s itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual’s illegal activitiesAlabama, v. White, [supra, 496 U.S. 332]. The high indicia of reliability of this tip combined with corroboration of innocuous facts by independent police work was sufficient to provide [the trooper] with a reasonable and articulable suspicion that the defendant was carrying the drugs indicated by the tipster.” State v. Torres, supra, 383-84.

In the present case, the anonymous tip provided no predictive information, and, therefore, the police could not test the tipster’s knowledge and credibility. Nor could the police narrow the likely class of informants. The anonymous tip came in by telephone, and the record does not reflect whether the police made any notation or other documentation either by a voice recording or by tracing the call to a telephone number. Badger could not ascertain whether the informant personally had observed the offending conduct or, if he had, when. Cf. United States v. Valentine, 232 F.3d 350, 353 (3d Cir. 2000), cert. denied, 532 U.S. 1014, 121 S. Ct. 1748, 149 L. Ed. 2d 670 (2001) (officer knew that informant personally had seen conduct in issue seconds earlier).

Unlike when a tip is given face-to-face, and the officer therefore has the opportunity to assess the informant’s credibility and demeanor; United States v. Christmas, 222 F.3d 141, 144 (4th Cir. 2000), cert. denied, 531 U.S. 1098, 121 S. Ct. 830, 148 L. Ed. 2d 712 (2001); the tipster in the present case could not be held accountable. See United States v. Salazar, 945 F.2d 47, 50-51 (2d Cir. 1991) (“a face-to-face informant must, as a general matter, be thought more reliable than an anonymous telephone tipster, for the former runs the greater risk that he may be held accountable if his information proves false”); United States v. Sierra-Hernandez, 581 F.2d 760, 763 (9th Cir.), cert. denied, 439 U.S. 936, 99 S. Ct. 333, 58 L. Ed. 2d 333 (1978) (“[Although the informant did not identify himself by name, he would have been available for further questioning if the agent had judged the procedure appropriate. Unlike a person who makes an anonymous telephone call, this informant confronted the agent directly.”); United States v. Gorin, 564 F.2d 159, 161 (4th Cir. 1977), cert. denied, 434 U.S. 1080, 98 S. Ct. 1276, 55 L. Ed. 2d 788 (1978) (“[Standards of reliability should not prevent appropriate police action when a victim of a crime immediately has contacted the police. . . . That same analysis applies [when a witness informs the police in person about a crime].” [Citation omitted.]). In short, the informant here was not exposed to retaliation from the suspects; he or she knew that the officers could not hold him or her accountable; and the officers could not, with any degree of certainty, assess the informant’s credibility as he or she spoke, did not know what the informant looked like, and had no opportunity to find the informant if the tip did not pan out.

What matters for our purposes, however, is not simply that the officers could not guarantee that they could track down the informant again. The question is whether the tip should be deemed sufficiently trustworthy in light of the total circumstances. Without a doubt, an anonymous tip can have certain other features that support reliability even if the police cannot narrow the likely class of informants. See e.g., State v. Torres, supra, 230 Conn. 383. In stark contrast to Torres, however, the police in this case were unable to corroborate the anonymous allegations of drug dealing on the church steps, despite their attempts to do so, and notwithstanding their close surveillance of the suspects. Rather, all they could corroborate were the “innocuous facts”; id., 384; that two black males, one taller than the other, whose clothing fit the partial description by the anonymous caller, were walking along the street in the vicinity of the church, on a busy city street in the middle of the afternoon. As in Florida v. J. L., supra, 529 U.S. 272, these so-called details added nothing to the reliability or credibility of the tip, but merely allowed the police to pinpoint the persons who were the targets of the accusation. State v. Young, 770 So. 2d 7, 11 (La. App. 2000). “Too many people fit this description for it to justify a reasonable suspicion of criminal activity.” United States v. Eustaquio, 198 F.3d 1068, 1071 (8th Cir. 1999). In short, these details did not supply sufficient indicia of reliability to establish the reasonable suspicion required to justify an investigatory stop.

A police officer must be able to articulate something more than a mere “inchoate and unparticularized suspicion or ‘hunch’ . . . .” Terry v. Ohio, supra, 392 U.S. 27. “When a police officer testifies that a suspect aroused the officer’s suspicion, and so justifies a stop and frisk, the courts can weigh the officer’s credibility and admit evidence seized pursuant to the frisk even if no one, aside from the officer and defendant themselves, was present or observed the seizure. An anonymous telephone tip without more is different, however; for even if the officer’s testimony about receipt of the tip is found credible, there is a second layer of inquiry respecting the reliability of the informant that cannot be pursued. If the telephone call is truly anonymous, the informant has not placed his credibility at risk and can lie with impunity. The reviewing court cannot judge the credibility of the informant and the risk of fabrication becomes unacceptable.” Florida v. J. L., supra, 529 U.S. 274-75 (Kennedy, J., concurring). Therefore, because the reliability of an anonymous tipster is “by hypothesis largely unknown, and unknowable”; Illinois v. Gates, 462 U.S. 213, 237, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); something more, that is, greater corroboration, is required. Nothing more was present in this case, rendering the tip, at best, conjectural and conclusory.

Two other factors are relied upon by the state to justify the Appellate Court’s affirmance of the trial court’s decision. The first is the characterization of the neighborhood; the second is the defendant’s “flight.” Although we recognize that reasonable suspicion can be based on acts capable of innocent explanation, we nevertheless conclude that, viewed in their totality, the additional circumstances cited by the state still do not support a finding of reasonable suspicion.

The issue “is not whether the particular conduct is innocent or guilty, but the degree of suspicion that attaches to particular types of noncriminal acts.” (Internal quotation marks omitted.) United, States v. Sokolow, 490 U.S. 1, 10, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989). The defendant in this case was seen in a high crime area known for drug trafficking. His presence on a city street in and of itself certainly does not provide suspicion to any degree, particularly when the stop occurs in the middle of the day. United States v. Gray, 213 F.3d 998, 1001 (8th Cir. 2000) (walking and then standing on street in high crime area before 10 p.m. in cold weather insufficient to justify Terry stop). The remaining consideration, however, upon which the state focuses—that, the defendant walked away from the approaching police—“hardly amounts to the headlong flight considered in [Illinois v.] Wardlaw [528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000)] . . . .” United States v. Valentine, supra, 232 F.3d 357. Indeed, there was no flight as that term has been used in this context.

Finally, prior to the stop, there was no command to halt; United States v. Weaver, 8 F.3d 1240, 1244 (7th Cir. 1993) (noting that efforts to evade police officers’ reasonable request to stop fueled their suspicions of suspect’s criminal involvement); and no attempt to destroy evidence. United States v. Dupree, 202 F.3d 1046, 1049 (8th Cir. 2000) (noting that suspect’s quick movement to drop object from bridge to railroad tracks below as approaching police officer asked to speak with him sufficiently bolstered anonymous tip to justify Terry stop); United States v. Quinn, 83 F.3d 917, 921-22 (7th Cir. 1996) (in high crime area known for drug trafficking, failure of suspect standing with two other individuals to yield police officer’s command to halt, combined with dropping of plastic baggie that appeared to contain narcotics by one of three individuals and scattering of group in opposite direction, justified Terry stop).

Therefore, we answer the certified question of whether the Appellate Court properly concluded that the defendant was not illegally seized in violation of the fourth amendment to the United States constitution in the negative. The concatenation of factors, even when considered collectively, did not amount to reasonable suspicion required for a valid Terry stop. The only issue that remains is whether that decision compels the determination that the evidence should have been suppressed as a consequence of that illegality.

“Under the exclusionary rule, evidence must be suppressed if it is found to be the fruit of prior police illegality. Wong Sun v. United States, [371 U.S. 471, 485, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)]. All evidence is not, however, a fruit of the poisonous tree simply because it would not have been discovered but for the illegal action of law enforcement officials. Id., 487-88; see State v. Villafane, 171 Conn. 644, 655, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977), overruled in part on other grounds, State v. Stepney, 191 Conn. 233, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primaiy taint. Wong Sun v. United, States, supra, 488, quoting Maguire, Evidence of Guilt (1959) p. 221. State v. Cates, 202 Conn. 615, 619-20, 522 A.2d 788 (1987). The initial determination is, therefore, whether the challenged evidence is in some sense the product of illegal government activity. United States v. Crews, 445 U.S. 463, 471, 100 S. Ct. 1244, 63 L. Ed. 2d 537 (1980); see also State v. Miller, 29 Conn. App. 207, 216, 614 A.2d 1229 (1992), aff'd, 227 Conn. 363, 630 A.2d 1315 (1993) ([b]ecause the seizure of the gun did not owe its origin in material part to the [illegal] Terry stop, the Terry stop cannot provide a basis for excluding the gun from evidence).” (Internal quotation marks omitted.) State v. Colvin, 241 Conn. 650, 656-57, 697 A.2d 1122 (1997).

In this case, the state does not challenge the defendant’s claim that the narcotics seized and his statement to the police must be suppressed as “fruit of the poisonous tree” if the stop by the police was constitutionally impermissible. See, e.g., State v. Greenfield, 228 Conn. 62, 67, 634 A.2d 879 (1993). Without such evidence, the state could not have established the defendant’s guilt.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgment of the trial court and to remand the case to the trial court with direction to grant the motion to suppress.

In this opinion BORDEN and PALMER, Js., concurred.

SULLIVAN, C. J.,

with whom VERTEFEUILLE, J., joins, dissenting. Because I would conclude that the stop and search of the defendant, Tommy Hammond, did not violate the fourth amendment to the United States constitution, I respectfully disagree with the majority’s resolution of the first certified issue. I would, therefore, reach the second certified issue, i.e., whether the Appellate Court properly concluded that the defendant’s two convictions for possession of narcotics in violation of General Statutes § 2 la-279 (a) did not violate the federal and state prohibitions against double jeopardy, and I would affirm the judgment of the Appellate Court. See State v. Hammond, 60 Conn. App. 321, 759 A.2d 133 (2000).

I

INVESTIGATORY STOP

The majority cites Florida v. J.L., 529 U.S. 266, 268, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000), in support of its conclusion that the stop and search in this case was not justified. In Florida v. J.L., supra, 268, the police received a tip that a young black man in a plaid shirt, standing at particular bus stop, was carrying a gun. The police went to the bus stop and found three young black men, one of whom was wearing a plaid shirt. On this basis alone, the police approached the suspect, frisked him and seized a concealed firearm. Id., 268. The tip made no predictive claims that could be used to assess its credibility, and the veracity of the tip was not verified by any of the other indicators of possible criminal activity. Id., 270. Accordingly, the investigatory stop was ruled unconstitutional. Id., 271.

At first glance, the facts in the present case seem to resemble those in Florida v. J.L., supra, 529 U.S. 266. The police received an anonymous tip and stopped and searched the defendant on the basis of the facts that (1) he matched the general description given by the anonymous caller and (2) he was in the area indicated by the anonymous caller. In this case, however, the police had additional justification for making the stop. See Alabama v. White, 496 U.S. 325, 329, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990) (anonymous tip, “standing alone, would not warrant a man of reasonable caution in the belief that [a stop] was appropriate”; rather, “something more” is necessary [internal quotation marks omitted]). In Alabama v. White, supra, 332, that “something more” included accurate predictions as to the suspect’s future behavior, i.e., the suspect’s destination. The “something more” in the present case included (1) the evasive behavior of the defendant, first, in walking away after making eye contact with one officer and, second, in turning around again when faced by another officer and (2) the fact that the area was a location known for drug sales activity. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000), and Florida v. Rodriguez, 469 U.S. 1, 6, 105 S. Ct. 308, 83 L. Ed. 2d 165 (1984). Thus, under the totality of the circumstances standard; see United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981); I would conclude that the facts supported a reasonable and articulable suspicion that criminal activity was afoot so as to justify an investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

II

DOUBLE JEOPARDY

Because I would conclude that this case should be affirmed on the first certified issue, I would also address the second certified issue. The defendant claims that conviction on two counts of possession of narcotics violates his constitutional protection against double jeopardy. I disagree.

The defendant was found guilty of possession of cocaine in violation of § 21a-279 (a), possession of heroin in violation of § 21a-279 (a), possession of heroin with intent to sell in violation of General Statutes § 21a-277 (a), and possession of heroin with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b). The trial court sentenced the defendant to four years incarceration for possession of cocaine. The trial court merged the conviction for possession of heroin into the conviction for possession of heroin with intent to sell and sentenced the defendant to twelve years to run concurrently with the sentence for possession of cocaine. Finally, the trial court sentenced the defendant to three years for possession of heroin with intent to sell within 1500 feet of a school, to run consecutively to the other sentences.

The fifth amendment protection against double jeopardy ensures that defendants are neither tried nor punished multiple times for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977). The constitution of Connecticut incorporates the same double jeopardy prohibitions into its due process protection. State v. Chicano, 216 Conn. 699, 706, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991).

In the present case, relying on his two convictions for possession of narcotics, the defendant invokes the double jeopardy prohibition against multiple punishments for the same crime. The defendant relies heavily on State v. Rawls, 198 Conn. 111, 111-12, 502 A.2d 374 (1985), in which a defendant was convicted of one count of possession of cocaine and one count of possession of heroin, and sentenced to seven years incarceration on each count, with the terms to run concurrently. This court, holding that the imposition of separate penalties violated the prohibition against double jeopardy, set aside both the conviction and the sentence for possession of heroin. Id., 122.

When faced with a similar situation in State v. Chicano, supra, 216 Conn. 706, five years after Rawls, however, this court adopted the approach used by the Second Circuit Court of Appeals and vacated one of the sentences but allowed both convictions to stand. See also United, States v. Roman, 870 F.2d 65, 75-76 (2d Cir.), cert. denied, 490 U.S. 1109, 109 S. Ct. 3164, 104 L. Ed. 2d 1026 (1989); United States v. Aiello, 771 F.2d 621, 632-33 (2d Cir. 1985). In Chicano, we upheld our holding in Rawls that the imposition of separate sentences for possession of heroin and possession of cocaine violated the prohibition against double jeopardy. We also concluded, however, that it was only necessary to vacate one of the sentences, and not the conviction itself. We then combined both convictions into a compound offense.

Applying this methodology to the present case, I would conclude that the trial court has not imposed multiple punishments for the same crime. The conviction of possession of heroin was merged into the conviction for possession of heroin with intent to sell because the former is a lesser included offense of the latter. Therefore, the defendant was convicted of possession of cocaine, possession of heroin with intent to sell, and possession of heroin with intent to sell within 1500 feet of a school. It would be improper to merge the convictions for possession of heroin and possession of cocaine together, and then merge that conviction into possession of heroin with intent to sell because the defendant was not charged with possession of cocaine with intent to sell. Therefore, the Appellate Court properly concluded, it was possible for the defendant to commit the greater offense of possession of heroin with intent to sell without having first committed the lesser offense of possession of cocaine. State v. Hammond, supra, 60 Conn. App. 333.

Accordingly, I respectfully dissent.

       The fourth amendment to the United States constitution provides in relevant part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”

       General Statutes § 21a-279 (a) provides in relevant part: “Any person who possesses or has under his control any quantity of any narcotic substance . . . for a second offense, may be imprisoned not more than fifteen years or be fined not more than one hundred thousand dollars, or be both fined and imprisoned . . . and for any subsequent offense, may be imprisoned not more than twenty-five years or be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

       General Statutes § 21a-278 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”

         General Statutes § 21a-278a (b) provides: “Any person who violates section 21a-277 or 21a-278 by manufacturing, distributing, selling, prescribing, dispensing, compounding, transporting with the intent to sell or dispense, possessing with the intent to sell or dispense, offering, giving or administering to another person any controlled substance in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school, a public housing project or a licensed child day care center, as defined in section 19a-77, that is identified as a child day care center by a sign posted in a conspicuous place shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278. To constitute a violation of this subsection, an act of transporting or possessing a controlled substance shall be with intent to sell or dispense in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school, a public housing project or a licensed child day care center, as defined in section 19a-77, that is identified as a child day care center by a sign posted in a conspicuous place. For the purposes of this subsection, ‘public housing project’ means dwelling accommodations operated as a state or federally subsidized multifamily housing project by a housing authority, nonprofit corporation or municipal developer, as defined in section 8-39, pursuant to chapter 128 or by the Connecticut Housing Authority pursuant to chapter 129.”

       General Statutes § 54-56 provides: “Dismissal of information by court. All courts having jurisdiction of criminal cases shall at all times have jurisdiction and control over informations and criminal cases pending therein and may, at any time, upon motion by the defendant, dismiss any information and order such defendant discharged if, in the opinion of the court, there is not sufficient evidence or cause to justify the bringing or continuing of such information or the placing of the person accused therein on trial.”

       General Statutes § 21a-277 (a) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

       Pursuant to State v. Chicano, 216 Conn. 699, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991), the trial court merged the defendant's conviction ofpossession of heroin under § 21a-277 (a) with his conviction of possession of heroin under § 21a-279 (a).

       The fifth amendment to the United States constitution provides in relevant part: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .”

       In its brief, as an alternate ground for affirmance, the state argues that we should reconsider our decision in State v. Oquendo, 223 Conn. 635, 647, 613 A.2d 1300 (1992) (reaffirming application of standard set forth in United States v. Mendenhall, 446 U.S. 544, 546, 100 S. Ct. 1870, 64 L. Ed. 2d 497 [1980] that seizure is made when, in view of all circumstances surrounding incident, reasonable person would believe he was not free to leave), and adopt instead the standard enunciated in California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L. Ed. 2d 690 (1991) (in absence of physical restraint, seizure occurs when show of authority would lead reasonable person to believe he is not free and person submits to assertion of authority). This was not a certified question for appeal and we decline to consider it at this time.

       Predicting future conduct of an alleged criminal is one way by which the police can test an anonymous informant’s knowledge and credibility. There may be other features that provide the lawful basis for some police action. “For example, if an unnamed caller with a voice which sounds the same each time tells police on two successive nights about criminal activity which in fact occurs each night, a similar call on the third night ought not be treated automatically like the tip in the case now before us [that the court determined lacked the requisite indicia of reliability]. In the instance supposed, there would be a plausible argument that experience cures some of the uncertainty surrounding the anonymity, justifying a proportionate police response.” Florida v. J. L., supra, 529 U.S. 275 (Kennedy, J., concurring).

       Furthermore, we note that in the present case, however, the state has provided no information about the reliability of anonymous tips in general or the reliability of this one in specific, and we have no way to know whether Badger had any objective reason to believe that this tip had some particular indicia of reliability.

       We reject, therefore, as without a sufficient basis in the record, the state’s assertion that the record supports an inference that the anonymous caller was an eyewitness to the reported drug sales.

       The slate focuses on the fact that the informant, according to Badger, was “excited” when he or she telephoned the police. The record does not reflect, nor can it with any degree of accuracy, whether that exhibition of emotion was feigned or real. Regardless, that portrayal states very little about the reliability of the information, and is insufficient to support the inference advanced by the state that the informant was an eyewitness. See footnote 12 of this opinion.

       In Alabama v. White, supra, 496 U.S. 326-27, the police received an anonymous tip that a certain woman would be exiting a certain apartment at a certain time, getting into a brown Plymouth station wagon with a broken right taillight, heading toward a certain motel, and transporting cocaine in a brown attache case. The police saw a woman leaving the building in question and getting into a brown station wagon with a broken right taillight. After the woman began driving in the direction of the motel, the police stopped her, told her she was suspected of transporting cocaine and asked to search her car. Id. She agreed, and the police located a brown attache case containing marijuana. Id. The United States Supreme Court held that the investigatory stop was permissible under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), because the tip accurately predicted the specific car, point of departure, and apparent destination of the woman, all of which demonstrated inside knowledge and gave credibility to the tip. Alabama v. White, supra, 332. Accurate prediction of future behavior overcame the fact that a tip was the only indication that illegal activity was afoot. Id.


source: Caselaw Access Project

author: PALMER, J. MCDONALD, C. J.,

license: Public Domain

text:
    BERNARD GIPSON v. COMMISSIONER OF CORRECTION
    (SC 16216)
    McDonald, C. J., and Borden, Katz, Palmer and Vertefeuille, Js.

      Argued September 22, 2000
    officially released August 21, 2001

      James J. Ruane, with whom, on the brief, was James O. Ruane, for the appellant (petitioner).

      Michele C. Lukban, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and George Ferko, assistant state’s attorney, for the appellee (respondent).

      G. Douglas Nash, chief of legal services, and Gerard A. Smyth, chief public defender, filed a brief for the office of the chief public defender as amicus curiae.

       The listing of justices reflects their seniority status on this court as of the date of argument.
      Although Chief Justice McDonald reached the mandatory age of retirement before the date that this opinion officially was released, his continued participation on this panel is authorized by General Statutes § 51-198 (c).

   Opinion

PALMER, J.

The question posed by this certified appeal is whether an indigent criminal defendant has a right to the assistance of counsel in connection with the filing of a petition for certification seeking this court’s discretionary review of a judgment of the Appellate Court upholding the defendant’s conviction. The petitioner, Bernard Gipson, who is indigent, filed a petition for a writ of habeas corpus, claiming that he had been denied the effective assistance of counsel because his appellate counsel failed to file a petition for certification with this court challenging the Appellate Court’s judgment upholding his conviction. The habeas court dismissed the habeas petition, concluding that the defendant had not been deprived of the effective assistance of counsel. The Appellate Court affirmed the judgment of the habeas court on the ground that the petitioner had no right to the assistance of counsel in connection with the filing of a petition for certification to this court. We conclude that the petitioner was entitled to such assistance under General Statutes § 51-296 (a) and, consequently, we reverse the judgment of the Appellate Court.

The following undisputed facts and procedural history are relevant to our resolution of this appeal. In 1994, a jury found the petitioner guilty of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), and the trial court rendered judgment in accordance with the jury verdict. The petitioner appealed from the judgment of conviction to the Appellate Court, claiming that the trial court improperly had denied his motion to suppress a witness’ pretrial identification. The Appellate Court rejected the petitioner’s claim without opinion and affirmed the judgment of conviction. State v. Gipson, 37 Conn. App. 932, 657 A.2d 730 (1995). The petitioner did not file a petition for certification to appeal to this court.

Thereafter, the petitioner filed an amended petition for a writ of habeas corpus, claiming that he had been deprived of the effective assistance of appellate counsel in violation of the sixth and fourteenth amendments to the United States constitution. In particular, the petitioner asserted that the attorney who had been appointed to represent him in his direct appeal to the Appellate Court improperly had failed to file a petition for certification to appeal to this court pursuant to General Statutes (Rev. to 1995) § 51-197F and Practice Book, 1978-97, §§ 4126 and 4127 (now Practice Book §§ 84-1 and 84-2, respectively). On October 17, 1997, following an evidentiary hearing, the habeas court dismissed the petitioner’s habeas petition on the ground that the petitioner had not established that, under the circumstances, his appellate counsel’s failure to file a petition for certification constituted ineffective assistance of counsel. The habeas court, however, granted the petitioner’s petition for certification to appeal to the Appellate Court from the judgment of the habeas court and also granted his application for a waiver of fees, costs and expenses.

On appeal from the judgment of the habeas court to the Appellate Court, the petitioner claimed that his appellate counsel’s failure to file a petition for certification had deprived him of his right to the effective assistance of counsel under the sixth and fourteenth amendments to the United States constitution and under § 51-296 (a). The Appellate Court rejected the petitioner’s appeal, concluding that the petitioner could not prevail because, as a threshold matter, he has no federal constitutional or state statutory right to the assistance of counsel in connection with the filing of a petition for certification. Specifically, the Appellate Court, relying on federal precedent, concluded that the federal constitutional right to counsel in criminal cases does not extend to discretionary state appeals. Gipson v. Commissioner of Correction, 54 Conn. App. 400, 405-406, 735 A.2d 847 (1999). The Appellate Court further concluded that § 51-296 does not provide an indigent defendant with a right to the assistance of counsel in connection with the filing of a petition for certification. Id., 407, 413, 421. Judge Lavery issued a concurring opinion in which he concluded, contrary to the holding of the Appellate Court majority, that § 51-296 does afford an indigent defendant the right to counsel in connection with the filing of a petition for certification. Id., 422 (Lavery, J., concurring).

We granted the petitioner’s petition for certification limited to the issue whether a “criminal defendant [has] a [state] constitutional right to the assistance of counsel in connection with [the filing of] a petition for certification . . . .” Gipson v. Commissioner of Correction, 251 Conn. 915, 740 A.2d 864 (1999). We thereafter expanded the certified question, however, to include a second issue, namely, whether “a criminal defendant [has] a state statutory right to the assistance of counsel in connection with [the filing of] a petition for certification . . . .” Id. Essentially for the reasons set forth by Judge Lavery in his concurring opinion in Gipson v. Commissioner of Correction, supra, 54 Conn. App. 421-34, we conclude that, under § 51-296 (a), an indigent criminal defendant has a right to the assistance of counsel for purposes of filing a petition for certification seeking this court’s review of a judgment of the Appellate Court affirming a trial court’s judgment of conviction. We, therefore, reverse the judgment of the Appellate Court and remand the case to that court for a determination of whether the habeas court properly rejected the petitioner’s claim of ineffective assistance of appellate counsel.

Whether § 51-296 (a) affords an indigent criminal defendant the right to the assistance of counsel in connection with the filing of a petition for certification is a question of statutory interpretation that we review according to well settled principles. “Statutory construction is a question of law and therefore our review is plenary. . . . [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Rivera v. Commissioner of Correction, 254 Conn. 214, 238 n.23, 756 A.2d 1264 (2000).

“As with all issues of statutory interpretation, we look first to the language of the statute.” In re Michaela Lee R, 253 Conn. 570, 583, 756 A.2d 214 (2000). Section 51-296 (a) provides in relevant part: “In any criminal action . . . 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 . . . chapter [887], designate a public defender, assistant public defender or deputy assistant public defender to represent such indigent defendant . . . .” Inasmuch as § 51-296 (a) contains no express reference to appellate proceedings, the focus of our inquiry necessarily involves the scope of the term “any criminal action” as it is used in that statutory subsection.

As the Appellate Court observed, “the words ‘any criminal action’ are not defined in § 51-296 or chapter 887, nor is the meaning of those words readily apparent from their context . . . .” Gipson v. Commissioner of Correction, supra, 54 Conn. App. 409. It, therefore, “is appropriate to look to the common understanding of the term . . . .” (Internal quotation marks omitted.) Oxford Tire Supply, Inc. v. Commissioner of Revenue Services, 253 Conn. 683, 696, 755 A.2d 850 (2000); see also General Statutes § 1-1 (a). We agree with the Appellate Court that the word “any,” for purposes of § 51-296 (a), connotes “all” or “every.” (Internal quotation marks omitted.) Gipson v. Commissioner of Correction, supra, 409 (“[t]he word any in statutes is generally used in the sense of all or every and its meaning is comprehensive in scope and inclusive in range” [internal quotation marks omitted]). We, therefore, may presume that the legislature, in using the word “any” to modify the term “criminal action,” intended that term to be broad, rather than restrictive, in scope.

As this court previously has stated, “the word ‘action’ has no precise meaning and the scope of proceedings which will be included within the term as used in the statutes depends upon the nature and puipose of the particular statute in question.” Carbone v. Zoning Board of Appeals, 126 Conn. 602, 605, 13 A.2d 462 (1940); see also Isaac v. Mount Sinai Hospital, 210 Conn. 721, 730, 557 A.2d 116 (1989) (“[i]n a general sense the word action means the lawful demand of one’s right in a court of justice; and in this sense it may be said to include any proceeding in such a court for the puipose of obtaining such redress as the law provides” [internal quotation marks omitted]); Dayco Corp. v. Fred T. Roberts & Co., 192 Conn. 497, 502, 472 A.2d 780 (1984) (same). Because the word “action” may have “different meanings in different contexts ... we [take] a functional approach in our construction of the [word], eschewing the application of inflexible mies in favor of a contextual analysis.” (Citation omitted; internal quotation marks omitted.) Stevens v. Aetna Life & Casualty Co., 233 Conn. 460, 467-68, 659 A.2d 707 (1995) (constming meaning of term final judgment). For an understanding of that context, we turn, first, to the legislative history of § 51-296, which is contained in the majority opinion of the Appellate Court.

“Prior to 1965, counsel was provided for indigent defendants under limited circumstances in trial proceedings only, despite the existence of appellate review. From 1965 to 1974, the statutory right to counsel included representation in appeals to the Appellate Session of the trial court and on certification to the Supreme Court, in addition to trial proceedings. In 1974, the legislature eliminated all reference to a statutory right to counsel in appeals of any kind.

“Connecticut ‘was the first state to adopt the public defender system.’ State v. Hudson, 154 Conn. 631, 635, 228 A.2d 132 (1967). Since at least 1917, the legislature has recognized an indigent’s right, in limited circumstances, to the assistance of counsel. See Public Acts 1917, c. 225; State v. Hudson, supra, 635. Public Acts 1917, c. 225, § 1, required the judges of the Superior Court to appoint an attorney to act ‘in the defense of all persons charged with crime in said court when such person is without funds sufficient to employ counsel for such defense.’ In 1921, the legislature amended, as follows, the public defender statute to specify the courts before which [public defenders] could appear: ‘Each such public defender shall act as attorney in the defense of any person charged with crime in either the superior court, the court of common pleas or the district court of Waterbury, in the county for which he is appointed, when such accused person is without funds sufficient to employ counsel for such defense.’ Public Acts 1921, c. 129, § 1.

“In 1958, the text of General Statutes (1958 Rev.) § 54-80 provided in relevant part: ‘Each such public defender shall act as attorney in the defense of any person charged with crime in either the superior court or the court of common pleas for the county for which he has been appointed, when such person is without funds sufficient to employ counsel for such defense.

“In 1959, the legislature established the Circuit Court; Public Acts 1959, No. 28, § 1; and modified the scope of a public defender’s representation. In Public Acts 1959, No. 28, § 13, which was codified at General Statutes (Sup. 1959) § 54-81a, the legislature first used the phrase ‘any criminal action.’ That act provided in relevant part: ‘In any criminal action in the circuit court, the judge before whom the matter is pending shall, if he determines that the interests of justice so require, appoint an attorney to act as special public defender and represent the defendant. . . .’ Public Acts 1959, No. 28, § 13.

“Although criminal defendants have had a statutory right to appeal since at least 1882; see State v. Vaughan, 71 Conn. 457, 460, 42 A. 640 (1899); the first statutory reference to an indigent’s right to appellate counsel appeared in 1965. Public Acts 1965, No. 178, § 1, which amended § 54-8 la, provided in relevant part: ‘In any criminal action in the circuit court, the judge before whom the matter is pending shall, if he determines that the interests of justice so require, designate the public defender for such circuit or an assistant public defender to represent the defendant. . . . The public defender or assistant public defender may, in the performance of his regular duties, appeal to the appellate division of the circuit court and, if certification is sought and granted, to the supreme court of errors. . . .’ In 1967, the legislature amended § 54-81a to provide for representation of indigents in proceedings under writs of habeas corpus challenging extradition under the Uniform Criminal Extradition Act, General Statutes (Rev. to 1966) § 54-157 et seq. Public Acts 1967, No. 189.

“In 1972, the legislature amended § 54-81a to reflect that the Appellate Division of the Court of Common Pleas had replaced the Appellate Division of the Circuit Court. Public Acts 1972, No. 281, § 23, which amended § 54-81a, provided in relevant part: ‘The public defender or assistant public defender may, in the performance of his regular duties, appeal to the appellate division of the court of common pleas and, if certification is sought and granted, to the supreme court. . . .’In 1974, the legislature amended § 54-8 la to reflect that the Court of Common Pleas had assumed the jurisdiction and functions of the Circuit Court; Public Acts 1974, No. 74-183, §§ 5 and 7 [P.A. 74-183]; and that the Appellate Session of the Superior Court had replaced the Appellate Division of the Court of Common Pleas. [P.A.] 74-183, § 9. [Public Acts] 74-183, § 150, which amended § 54-81a, stated in relevant part: ‘In any criminal action in the court of common pleas, the judge before whom the matter is pending shall, if he determines that the interests of justice so require, designate a public defender or an assistant public defender to represent the defendant. . . . The public defender or assistant public defender may, in the performance of his regular duties, appeal to the superior court and, if certification is sought and granted, to the supreme court. . . .’

“In 1974, the legislature repealed [General Statutes §§ 54-80 and] 54-81a. Public Acts 1974, No. 74-317, § 12 [P.A. 74-317]. [Public Acts 74-317, § 7] was codified at General Statutes (Rev. to 1975) § 51-296, and, as enacted, provided in relevant part: ‘(a) In any criminal action, in any habeas corpus proceeding arising from a criminal matter, in any extradition proceeding, or in any juvenile court 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 act, designate a public defender or assistant public defender to represent such indigent defendant . . . .’ (Emphasis added.) As enacted, § 51-296 did not mention appellate proceedings and, despite minor amendments, which are unimportant for purposes of this discussion, the text of § 51-296 remains unchanged. The legislative history of the adoption of § 51-296 contains no discussion concerning the ehmination of the provision authorizing public defenders to pursue discretionary appeals to our Supreme Court. See 17 H.R. Proc., Pt. 10, 1974 Sess., pp. 4839-43; 17 S. Proc., Pt. 6, 1974 Spec. Sess., pp. 2262-65, 2270-71; Conn. Joint Standing Committee Hearings, Judiciary, 1974 Sess., pp. [221-1 through 221-3, 221-15 through 221-20, 221-36 through 221-37, 221-56, 221-57, 221-65, 221-76 through 221-77, 221-96 through 221-100, 221-106 through221-107].” Gipson v. Commissioner of Correction, supra, 54 Conn. App. 410-13.

For several reasons, we are persuaded that this legislative genealogy, when viewed in proper context, supports the petitioner’s contention that he has a statutory right to the assistance of counsel in connection with the filing of a petition for certification. First, in 1963, the United States Supreme Court, in Douglas v. California, 372 U.S. 353, 357-58, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963), held that an indigent criminal defendant is constitutionally entitled to the assistance of counsel in a first appeal as of right. In this state, defendants have had a right of appeal from a judgment of conviction since at least 1794. See Acts and Laws of the State of Connecticut in America 1784-91, An Act Concerning Delinquents, If4, p. 39 (passed 1784). Thus, in 1974, when the legislature mandated that a public defender be appointed for an indigent criminal defendant in “any criminal action,” it already was well established that a defendant had a federal constitutional right to the appointment of counsel in connection with his or her first appeal. This fact belies the state’s construction of the word “action” as including only trial proceedings because it is unlikely that the legislature, having been aware of the federal constitutional entitlement to appellate counsel in connection with a defendant’s first appeal as of right, would have enacted a statute mandating the appointment of trial counsel but not counsel to represent the defendant in connection with his or her first appeal. In other words, we perceive no rational reason why the legislature, having made express provision for the appointment of counsel in § 51-296 (a), would have excluded a first appeal from the purview of that requirement because, in this state, as in other states, an indigent criminal defendant has a constitutional right to the appointment of not only trial counsel, but also counsel to represent him or her in connection with a first appeal as of right. Moreover, although it lawfully could have limited the mandatory appointment of counsel to first appeals as of right, the legislature, in placing the word “any” before the term “criminal action,” evinced its intent that the word “action” encompass all appeals and not merely first appeals.

This conclusion is further buttressed by the fact that the term “any criminal action” is not qualified or limited in any way. In contrast, the legislature repeatedly “use[d] qualifying language to limit the scope of [the] phrase [in any criminal action] between 1959 and 1974. In 1959, when the legislature first used this phrase, it qualified it by stating ‘[i]n any criminal action in the circuit court . . . .’ Public Acts 1959, No. 28, § 13. In 1974, when the Court of Common Pleas assumed the jurisdiction and functions of the Circuit Court; see [P.A.] 74-183, §§ 5 and 7; the legislature once again limited the scope of this phrase by stating ‘[i]n any criminal action in the court of common pleas . . . .’ [P.A.] 74-183, § 150. In 1974, when the legislature eliminated the reference to appellate proceedings in § 51-8 la by repealing that statute and it adopted P.A. 74-317, § 7, it failed to use any qualifying language to limit the scope of ‘[i]n any criminal action . . . .’ As evidenced by its conduct between 1959 and 1974, ‘[t]he legislature is quite aware of how to use language when it wants to express its intent to qualify or limit the operation of a statute’; State v. Ingram, 43 Conn. App. 801, 825, 687 A.2d 1279 (1996), cert. denied, 240 Conn. 908, 689 A.2d 472 (1997); and the phrases ‘in the circuit court’ and ‘in the court of common pleas’ cannot be construed as excessive verbiage because ‘[w]e presume that the legislature had a purpose for each sentence, clause or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions. ’ Ferrigno v. Cromwell Development Associates, 244 Conn. 189, 196, 708 A.2d 1371 (1998). If the legislature had intended to limit the scope of P.A. 74-317, § 7, to encompass only the appointment of counsel in trial proceedings, it would follow, in light of its conduct between 1959 and 1974, that the legislature would have qualified [the term] ‘[i]n any criminal action’ in P.A. 74-317, § 7, by referring to the trial court.” Gipson v. Commissioner of Correction, supra, 54 Conn. App. 428-29 (Laverg, J., concurring).

Furthermore, the primary propose of P.A. 74-317 was the creation of a public defender services commission to administer the public defender system in lieu of the judges of the Superior Court, who previously had been responsible for that function. See generally 17 H.R. Proc., Pt. 10,1974 Sess., pp. 4839-42, remarks of Representative Samuel S. Freedman. There is nothing in the history of P.A. 74-317 to indicate that the legislature, in establishing a public defender services commission and consolidating the provisions pertaining to the appointment of counsel under the new statutory scheme relating to that commission, intended to eliminate any rights that previously had been afforded indigent defendants. Indeed, the sparse legislative history that bears on this issue suggests a contrary conclusion. Finally, we are reluctant to ascribe such an intent to the legislature in light of the fact that, as the Appellate Court recognized, discretionary review by this court “plays a vital role in our judicial system . . . .” Gipson v. Commissioner of Correction, supra, 54 Conn. App. 418.

Section 1 of P.A. 74-317 lends additional support to the statutory interpretation urged by the petitioner. In particular, that section mandated that public defender “services . . . consist of those duties carried out by superior court, circuit court and court of common pleas public defenders prior to October 1,1975, and responsibilities provided for by this act . . . .” P.A. 74-317, § 1, codified at General Statutes (Rev. to 1975) § 51-289 (d). Under §§ 54-80 and 54-8 la, the duties of this state’s public defenders prior to October 1, 1975, included the representation of indigent defendants at all levels of appeal. Because the legislature surely was aware of that fact; see, e.g., Linden Condominium Assn., Inc. v. McKenna, 247 Conn. 575, 583, 726 A.2d 502 (1999) (“[w]e presume that laws are enacted in view of existing relevant statutes” [internal quotation marks omitted]); P.A. 74-317, § 1, is persuasive evidence that the legislature intended for public defenders to continue to represent defendants in connection with appeals to this court. Thus, an interpretation of the term “any criminal action” in § 51-296 as excluding discretionary appeals to this court would conflict with the express mandate of P.A. 74-317, § l. We are bound to avoid such an interpretation. In a case such as this one, in which “more than one [statutory provision] is involved, we presume that the legislature intended [those provisions] to be read together to create a harmonious body of law . . . and we construe the [provisions], if possible, to avoid conflict between them.” (Internal quotation marks omitted.) Eskin v. Castiglia, 253 Conn. 516, 527, 753 A.2d 927 (2000). In contrast, an interpretation of the term “any criminal action” as including appeals to this court gives full meaning to both § 51-289 and § 51-296. See Linden Condominium Assn., Inc. v. McKenna, supra, 583-84 (“[w]e presume that laws are enacted in view of existing relevant statutes . . . [and] we read each statute in a manner that will not thwart, its intended purpose or lead to absurd results” [citations omitted; internal quotation marks omitted]).

Finally, it is undisputed that public defenders and special public defenders consistently have been appointed to represent indigent defendants in connection with appeals to this court since § 51-296 was enacted over twenty-five years ago. Indeed, we are informed by amicus curiae, the office of the chief public defender, that public defenders have filed over 800 petitions for certification with this court. In light of the long and uninterrupted history of the appointment of counsel to represent indigent defendants in connection with petitions for certification, it is reasonable to presume legislative awareness of the practice; in such circumstances, it also is reasonable to treat the legislative inaction as tacit approval of the statutory interpretation upon which that practice has been predicated. See Commission on Human Rights & Opportunities v. Sullivan Associates, 250 Conn. 763, 783, 739 A.2d 238 (1999) (“[although we usually have given weight to legislative inaction following a judicial construction of a statute, on occasion we also have noted the significance of legislative inaction following an administrative construction of a statute” [emphasis in original]).

For these reasons, we are persuaded that § 51-296 (a) accorded the petitioner the right to representation in connection with the filing of a petition for certification following the Appellate Court’s judgment upholding his robbery conviction in 1995. We therefore reverse the judgment of the Appellate Court in this case. Because, however, the Appellate Court did not reach the issue whether the trial court properly concluded that the petitioner’s right to counsel had not been violated notwithstanding his appellate counsel’s failure to file a petition for certification, we remand the case to the Appellate Court for its resolution of that issue.

The judgment of the Appellate Court is reversed and the case is remanded to that court for further proceedings according to law.

In this opinion BORDEN, KATZ and VERTEFEUILLE, Js., concurred.

MCDONALD, C. J.,

dissenting. After reviewing the record, I agree with Judge Lavery that the defendant failed to establish in the habeas court that he was denied effective assistance of counsel in connection with a petition for certification. Gipson v. Commissioner of Correction, 54 Conn. App. 400, 436, 735 A.2d 847 (1999) (Lavery, J., concurring.) I would, therefore, affirm the judgment of the Appellate Court upholding the decision of the habeas court.

Accordingly, I respectfully dissent.

       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 . . . chapter [887], designate a public defender, assistant public defender or deputy assistant public defender to represent such indigent defendant, unless, in a misdemeanor case, at the time of the application for appointment of counsel, the court decides to dispose of the pending charge without subjecting the defendant to a sentence involving immediate incarceration or a suspended sentence of incarceration with a period of probation or the court believes that the disposition of the pending case at a later date will not result in a sentence involving immediate incarceration or a suspended sentence of incarceration with a period of probation and makes a statement to that effect on the record. If it appears to the court at a later date that, if convicted, the sentence of an indigent defendant for whom counsel has not been appointed will involve immediate incarceration or a suspended sentence of incarceration with a period of probation, counsel shall be appointed prior to trial or the entry of a plea of guilty or nolo contendere.”

       The trial court, sentenced the petitioner to a term of imprisonment of fourteen years, execution suspended after twelve years, and five years probation.

       The habeas petition also contained a second, distinct allegation of ineffective assistance of appellate counsel. That claim, however, is not a subject, of this appeal.

       General Statutes (Rev. to 1995) § 51-197fprovides: “Upon final determination of any appeal by the appellate court, there shall be no right to further review except the supreme court shall have the power to certify cases for its review upon petition by an aggrieved party or by the appellate panel which heard the matter and upon the vote of two justices of the supreme court so to certify and under such other rules as the justices of the supreme court shall establish. The procedure on appeal from the appellate court to the supreme court shall, except as otherwise provided, be in accordance with the procedure provided by rule or law for the appeal of judgments rendered by the superior court, unless modified by rule of the justices of the supreme court.”

       Practice Book, 1978-97, § 4126 provided: “Appeals may be taken to the supreme court in causes determined in the appellate court where the supreme court, uponpetition of an aggrieved party orrequest of the appellate panel which heard the case, certifies the case for review.”

       Practice Book, 1978-97, § 4127 provided: “Certification by the supreme court on petition by a party is not a matter of right but of sound judicial discretion and will be allowed only where there are special and important reasons therefor. The following, while neither controlling nor fully measuring the court’s discretion, indicate the character of the reasons which will be considered:
      “(1) Where the appellate court has decided a question of substance not theretofore determined by the supreme court or has decided it in a way probably not in accord with applicable decisions of the supreme court.
      “(2) Where the decision under review is in conflict with other decisions of the appellate court.
      “(3) Where the appellate court has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by any other court, as to call for an exercise of the supreme court’s supervision.
      “(4) Where a question of great public importance is involved.
      “(5) Where the judges of the appellate panel are divided in their decision or, though concurring in the result, are unable to agree upon a common ground of decision.”

       In concluding that appellate counsel’s failure to file a petition for certification did not constitute ineffective assistance of counsel, the habeas court reasoned that the opinion of the Appellate Court raised no issues worthy of certification by this court. See Gipson v. Commissioner of Correction, 54 Conn. App. 400, 435, 735 A.2d 847 (1999) (Lavery, J., concurring).

       A petition for certification to appeal from the judgment of a habeas court filed pursuant to General Statutes § 52-470 should be distinguished from a petition for certification to appeal from a judgment of the Appellate Court to this court filed pursuant to General Statutes § 51-197Í and Practice Book §§ 84-1 and 84-2. Unless otherwise indicated, all references hereinafter to petitions for certification are to those petitions seeking this court’s discretionary review of an adverse judgment of the Appellate Court.

       It is settled that there is no federal constitutional right, of appeal. E.g., Abney v. United States, 431 U.S. 651, 656, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977); United States v. Matista, 932 F.2d 1055, 1056 (2d Cir. 1991). If, however, a state grants a right of appeal to criminal defendants, the fourteenth amendment mandates that the state also provide counsel for those indigent defendants who wish to exercise that right. Douglas v. California, 372 U.S. 353, 356-57, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963); see also Gaines v. Manson, 194 Conn. 510, 515, 481 A.2d 1084 (1984). As the Appellate Court concluded, however, the federal constitution does not require a state to provide counsel for an indigent defendant who, like the petitioner, seeks discretionary appellate review of his or her first appeal. Gipson v. Commissioner of Correction, supra, 54 Conn. App. 405-406; see Ross v. Moffitt, 417 U.S. 600, 617-18, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974).

       Since the Appellate Court’s release of its opinion in this case, Judge Lavery has been appointed Chief Judge of that court.

       Judge Lavery also concluded, however, that the habeas court properly had determined that the petitioner did not establish that his appellate counsel’s failure to file a petition for certification constituted ineffective assistance of counsel. Gipson v. Commissioner of Correction, supra, 54 Conn. App. 434-39 (Lavery, J., concurring). Consequently, Judge Lavery concurred in the decision of the Appellate Court to affirm the habeas court’s judgment.

       We note that the certified question set forth in our order granting the petitioner’s petition for certification; see Gipson v. Commissioner of Correction, 251 Conn. 915, 740 A.2d 864 (1999); was not expressly limited to the state constitution and, therefore, would seem to urge our analysis of the issue under the federal constitution as well. The petitioner’s petition for certification, however, sought our review under the state constitution only. Our grant of certification also was so limited.

       The petitioner does not claim that § 51-296 (a) requires appointed counsel to file a petition for certification on behalf of an indigent criminal defendant irrespective of whether a sufficient basis exists for the filing of such a petition. Rather, the petitioner claims, and we agree, that an indigent criminal defendant has the right to the assistance of counsel for purposes of determining whether a sound basis exists for the filing of a petition for certification. If such basis does exist, the defendant has the right to the assistance of counsel in preparing and filing the petition and, if the petition is granted, the right to counsel’s assistance in connection with the appeal to this court.

       In light of our determination that the petitioner has a statutory right to the assistance of counsel in connection with the filing of a petition for certification, we do not address the petitioner’s state constitutional claim. See, e.g., State v. Lemon, 248 Conn. 652, 663 n.15, 731 A.2d 271 (1999) (established wisdom counsels against unnecessary determinations of constitutional questions). In addition, we note that, although the state disputes the petitioner’s claim of a right to counsel in connection with the filing of a petition for certification, the state does not dispute the principle that the right to counsel, if such right exists, includes the right to competent counsel. See, e.g., Logada v. Warden, 223 Conn. 834, 838, 613 A.2d 818 (1992).

       Section 51-296 falls within chapter 887 of the General Statutes, which is entitled “Public Defender Services.”

       General Statutes § 1-1 (a) provides: “In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.”

       As wo previously indicated; see footnote 9 of this opinion; the United States Supreme Court held, in Ross v. Moffitt, 417 U.S. 600, 610, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974), that a defendant has no federal constitutional right to the assistance of counsel in connection with discretionary state appeals. In Ross, however, the United Stales Supreme Court stated that it did “not mean by [its] opinion to in any way discourage those States which have, as a matter of legislative choice, made counsel available to convicted defendants at all stages of judicial review.” Id., 618.

       Indeed, this court previously has indicated that § 51-296 provides an indigent defendant with a right to competent appellate counsel as well as competent trial counsel. See, e.g., Lozada v. Warden, 223 Conn. 834, 841, 613 A.2d 818 (1992).

       It also is implausible that the legislature would have failed to provide for the appointment of counsel to represent an indigent criminal defendant in connection with a first appeal notwithstanding that such appointment is constitutionally required and, in the same statutory subsection, mandate the appointment of counsel to represent an indigent criminal defendant in connection with certain matters, such as habeas proceedings, for which the federal constitution does not guarantee such representation. See Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987) (no federal constitutional right to assistance of counsel in habeas corpus proceedings); see also Iovieno v. Commissioner of Correction, 242 Conn. 689, 701, 699 A.2d 1003 (1997).

       It also is noteworthy that, as Judge Lavery points out in his concurring opinion, this court “has adopted an expansive interpretation of [§ 51-296 (a)] in habeas corpus proceedings. Section 51-296 (a) provides that an indigent defendant has a right to counsel ‘[i]n any criminal action, in any habeas corpus proceeding arising from a criminal matter, in any extradition proceeding, or in any delinquency matter . . . .’ (Emphasis added.) Although there is no federal constitutional right to counsel in habeas corpus proceedings; Pennsylvania v. Finley, 481 U.S. 551, [555], 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987); [the courts of this state] have interpreted § 51-296’s reference to ‘in any habeas corpus proceeding’ to provide an indigent defendant with a statutory right to counsel in habeas hearings; Iovieno v. Commissioner of Correction, 242 Conn. 689, 701-702, 699 A.2d 1003 (1997); Lozada v. Warden, [223 Conn. 834, 838-39, 613 A.2d 818 (1992)]; and habeas appeals. Iovieno v. Commissioner of Correction, supra, 702; Franko v. Bronson, 19 Conn. App. 686, 692, 563 A.2d 1036 (1989).” Gipson v. Commissioner of Correction, supra, 54 Conn. App. 431 (Lavery, J., concurring).
      Our liberal construction of the term “any habeas corpus proceeding” is consistent with the construction of the term “any criminal action” urged by the petitioner.

       Indeed, P.A. 74-317 is entitled “An Act Concerning a Public Defender Services Commission.”

       For example, “[i]n commenting on House Bill 5773, which became [P.A.] 74-317, Senator Richard S. Scalo stated: [T]his is one of the most important bills that we have passed this session in terms of providing effective services in the criminal sphere for indigent people. . . . The state has a responsibility to provide adequate and effective legal counsel for those people who are unable to provide economically for counsel themselves. ... I think that this bill will go a long way to removing all of those impediments [toward] the standard that we are all seeking which is equal, effective, and adequate assistance of counsel for indigent people. 17 S. Proc., Pt. 6,1974 Spec. Sess., pp. 2262-64. Although Senator Scalo was not specifically referring to § 7 of [P.A.] 74-317, his statements are nonetheless probative of the intent underlying that public act. . . . [I]t seems implausible that a legislature, concerned with affording greater protection to indigent defendants, would extinguish any of the provisions for appellate counsel that were set forth in § 51-81a.” (Citation omitted; internal quotation marks omitted.) Gipson v. Commissioner of Correction, supra, 54 Conn. App. 430-31 (Lavery, J., concurring).

       Both § 54-80 and § 54-81a were repealed, effective October 1, 1975, by P.A. 74-317, §§ 12 and 14. As we previously have noted, § 54-81a expressly authorized public defenders in the Circuit Court and Court of Common Pleas to represent indigent defendants at all levels of appeal, including appeals to this court. Although § 54-80, relating to Superior Court public defenders, contained no such express language, we see no reason why the legislature would have intended for Superior Court public defenders to have any less responsibility in representing indigent criminal defendants on appeal than their counterparts in the Circuit Court and Court of Common Pleas.

       Public Act 74-317, § 1, currently is codified at General Statutes § 51-289. Section 51-289 provides: “Public Defender Services Commission established. Judicial Department to provide facilities in courts. Compensation plan, (a) There is established a Public Defender Services Commission which shall consist of seven members appointed as follows: (1) The Chief Justice shall appoint two judges of the Superior Court, or a judge of the Superior Court and any one of the following: A retired judge of the Superior Court, a former judge of the Superior Court, a retired judge of the Circuit Court, or a retired judge of the Court of Common Pleas; (2) the speaker of the House, the president pro tempore of the Senate, the minority leader of the House and the minority leader of the Senate shall each appoint one member; (3) the Governor shall appoint a chairman.

        “(b) The chairman shall serve for a three-year term and all appointments of members to replace those whose terms expire shall be for terms of three years.
      “(c) No more than three of the members, other than the chairman, may be members of the same political party. Of the four nonjudicial members, other than the chairman, at least two shall not be members of the bar of any state.
      “(d) If any vacancy occurs on the commission, the appointing authority having the power to make the initial appointment under the provisions of this chapter shall appoint a person for the unexpired term in accordance with the provisions of this chapter.
      “(e) Members shall serve without compensation but shall be reimbursed for actual expenses incurred while engaged in the duties of the commission. Members of this commission shall not be employed or nominated to serve as public defenders or in any other position created under this chapter.

        “(f) The commission may adopt such rules as it deems necessary for the conduct of its internal affairs.
      “(g) The commission shall be responsible for carrying out the purposes of this chapter and to carry out those purposes it shall adopt rules relating to the operations of a Division of Public Defender Services and shall provide any facilities other than those provided in the courts by the Judicial Department necessary for the carrying out of those services. Public defender services shall consist of those duties carried out by Superior Court and Court of Common Pleas public defenders prior to July 1, 1978, and those responsibilities provided for by this chapter. Public defender services shall be executed by a Chief Public Defender, a deputy chief public defender, public defenders, assistant public defenders, deputy assistant public defenders, investigators and other personnel which the commission deems necessary.
      “(h) The Judicial Department shall provide adequate facilities for public defenders, assistant public defenders and deputy assistant public defenders in the various courts.
      “(i) The commission shall establish a compensation plan comparable to that established for the Division of Criminal Justice in chapter 886, as it may be amended, and shall make rules relative to employees serving under the chapter, including sick leave and vacation time.
      “(j) The commission shall be an autonomous body within the Judicial Department for fiscal and budgetary purposes only.”
      We note that P.A. 74-317, § 1, originally codified at General Statutes (Rev. to 1975) § 51-289, was amended by Public Acts 1976, No. 76-436, § 574. This amendment, which reflected the merger of the Court of Common Pleas with the Superior Court effective July 1, 1978; see General Statutes § 51-164s; has no bearing on the issue of statutory interpretation presented by this appeal. The provision relating to the duties of public defenders was moved from subsection (d) to subsection (g) of § 51-289 as a result of 1982 amend-merits to § 51-289 not relevant to this appeal. See Public Acts 1982, No. 82-248, § 144.

         Moreover, as Judge Lavery noted in his concurring opinion, “[t]he office of the public defender or a special public defender filed a petition for certification or an opposition to the state’s petition for certification in at least fourteen of the approximately twenty nonhabeas criminal petitions decided by [the state] Supreme Court between January and April, 1999. Representation was provided in at least fifty-nine of the approximately ninety-five nonhabeas criminal petitions for certification decided in 1998.” Gipson v. Commissioner of Correction, supra, 54 Conn. App. 433 (Lavery, J., concurring).
      In addition, we are informed by amicus curiae that the public defender services commission; see footnote 24 of this opinion; recently has adopted a formal policy pursuant to which public defenders and special public defenders “assigned to represent clients on appeal are responsible for representation of their clients through and including review by [this] court . . . [upon the granting of certification to appeal].” Public Defender Services Commission, Policy Re: Petitions for Certification to the Connecticut Supreme Court (adopted January 11, 2000). We note that this policy does not require assigned counsel to file a petition for certification in every case following an adverse judgment of the Appellate Court; rather, the policy requires counsel to file a petition for certification only “if the petition has merit and should be filed.” Id. This policy is consistent with the position advanced by the petitioner. See footnote 13 of this opinion.

       We note that the Appellate Court majority stated that, based on the reasons set forth by Judge Lavery in his concurring opinion, it would have rejected the merits of the petitioner’s ineffective assistance of counsel claim if it had been required to reach the merits of that claim. Gipson v. Commissioner of Correction, supra, 54 Conn. App. 421 n.12. It does not appear, however, that the Appellate Court majority actually reviewed and rejected the petitioner’s claim on its merits as an alternative ground for affirming the judgment of the habeas court. Consequently, it is necessary that the case be remanded to the Appellate Court for that court’s review of the merits of the petitioner’s claim.