State v. Glen S. ( 2021 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. GLEN S.*
(AC 43101)
Prescott, Suarez and Vitale, Js.
Syllabus
The defendant, who had been convicted of sexual assault in a spousal or
cohabiting relationship, appealed to this court from the judgment of the
trial court revoking his probation. The defendant requested that he
appear as a self-represented party in his violation of probation proceed-
ing. Following a canvass, the trial court determined that the defendant
was competent to represent himself and granted his request. During
the evidentiary hearing portion of the proceeding, the defendant had
difficulty formulating nonargumentative, noncompound questions while
cross-examining the state’s witnesses. After the state rested its case,
the defendant requested that a specific attorney be appointed as his
defense counsel. The trial court was unable to grant the request because
the attorney was not on the authorized list of special public defenders.
The trial court instead appointed a special public defender to act as
standby counsel, as the defendant continued to insist that he represent
himself, and it ordered a competency evaluation of the defendant pursu-
ant to the applicable statute (§ 54-56d). After the defendant refused
to cooperate with the evaluators, the trial court determined that the
defendant was no longer competent to represent himself and appointed
his standby counsel to fully represent him. At the request of defense
counsel, the trial court ordered a second competency evaluation to
determine whether the defendant was competent to stand trial. The
defendant again refused to cooperate with the evaluators, and the trial
court, finding that the defendant understood the charges against him and
was capable of assisting with his defense, proceeded with the evidentiary
hearing. The defendant declined the opportunity to recall the state’s
witnesses for reexamination, and he did not testify or put forth any of
his own witnesses. The trial court found the defendant in violation of
his probation. Held:
1. The defendant could not prevail on his unpreserved claim that the trial
court’s canvass regarding the waiver of his right to be represented by
counsel was constitutionally inadequate under Faretta v. California
(422 U.S. 806) because the claim failed under the third prong of State
v. Golding (213 Conn. 233), as the defendant did not demonstrate that
a constitutional violation existed: the trial court reasonably could have
concluded that the defendant was competent to waive his right to coun-
sel, as his request for self-representation was clear and unequivocal, he
indicated during the trial court’s canvass that he had represented himself
in prior federal cases, that he was voluntarily waiving his right to counsel,
and that he was aware of the disadvantages to proceeding as a self-
represented party, and his technical legal knowledge was irrelevant to
the competency determination; moreover, the trial court apprised the
defendant of his maximum exposure for the violation of his probation
and was not required to advise him of his maximum exposure with
respect to certain misdemeanor charges that were not before the trial
court at the time of the canvass.
2. The defendant could not prevail on his claim that, even if the canvass
regarding the waiver of his right to be represented by counsel was
constitutional, he was entitled to a new trial under State v. Connor
(292 Conn. 483): the defendant failed to present sufficient evidence to
demonstrate that he suffered from such a significant mental impairment
that the trial court should have, sua sponte, determined that he was
incompetent to represent himself, as the defendant failed to cooperate
during the two court-ordered competency evaluations and his inability
to effectively cross-examine the state’s witnesses was insufficient, alone,
to overcome the statutory presumption of competency.
3. The trial court did not err when it failed, sua sponte, to canvass the
defendant about the waiver of his constitutional right to testify and this
court declined to exercise its supervisory authority to require trial courts
to conduct such a canvass: our Supreme Court previously determined
in State v. Paradise (213 Conn. 388), that trial courts were not constitu-
tionally required to canvass a defendant about the waiver of his right
to testify in instances such as the present case, where the defendant
did not allege that he wanted to testify or that he did not know that he
could testify; moreover, the exercise of supervisory powers relating to
the issue was better left to our Supreme Court.
4. The defendant’s claim that the trial court’s judgment should be reversed
because he was deprived of his constitutional right to conflict free
representation because an actual conflict existed was unavailing: his
public defender’s one sentence reference to the defendant’s threat of
physical violence against him in a motion for appointment of a guardian
ad litem, which was filed in an attempt to obtain releases of the defen-
dant’s relevant health information in order to determine his competency,
did not provide an adequate factual basis for the defendant’s contention
that an actual conflict existed; moreover, the record did not reflect that
his public defender sought to withdraw from further representation or
that his public defender made any statements that were representative
of divided loyalty.
Argued March 3—officially released August 31, 2021
Procedural History
Substitute information charging the defendant with
the crime of violation of probation, brought to the Supe-
rior Court in the judicial district of Stamford-Norwalk,
geographical area number twenty, and transferred to
the judicial district of Waterbury, geographical area
number four; thereafter, the matter was tried to the
court, Fasano, J.; judgment revoking the defendant’s
probation, from which the defendant appealed to this
court. Affirmed.
Conrad Ost Seifert, assigned counsel, for the appel-
lant (defendant).
Sarah Hanna, senior assistant state’s attorney, with
whom, on the brief, were Maureen T. Platt, state’s attor-
ney, and John R. Whalen, supervisory assistant state’s
attorney, for the appellee (state).
Opinion
VITALE, J. The defendant, Glen S., appeals from the
judgment of the trial court revoking his probation after
finding that he had violated the conditions of his proba-
tion in violation of General Statutes § 53a-32. On appeal,
the defendant claims: (1) the court’s canvass regarding
the waiver of his right to be represented by counsel was
constitutionally inadequate under Faretta v. California,
422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); (2)
even if the canvass was constitutional under Faretta,
he is entitled to a new trial under State v. Connor, 292
Conn. 483, 973 A.2d 627 (2009), because he exhibited
a noticeable impairment during the first day of the viola-
tion of probation evidentiary hearing; (3) this court
should exercise its supervisory authority to require that
trial courts canvass criminal defendants about the
waiver of their constitutional rights to testify; (4) this
court should review his claim of ineffective assistance
of counsel on direct appeal because the ineffectiveness
of his trial counsel is clear from the record; and (5) the
court’s judgment should be reversed because he was
deprived of his constitutional right to conflict free repre-
sentation. We disagree and, accordingly, affirm the judg-
ment of the trial court.
The following undisputed facts and procedural his-
tory are relevant to this appeal. The defendant pleaded
guilty on August 13, 2008, to sexual assault in a spousal
or cohabiting relationship in violation of General Stat-
utes (Rev. to 2007) § 53a-70b. The defendant thereafter
was sentenced by the court, Fasano, J., to a term of
fifteen years of incarceration, execution suspended
after five years, and fifteen years of probation. The
sentencing court imposed conditions of probation,
which provided, inter alia, that the defendant (1) not
violate any criminal law of Connecticut, (2) report to
his probation officer as directed, (3) keep his probation
officer apprised of any arrests during the probationary
period, (4) keep the probation officer apprised of his
location and inform the probation officer of any changes
to his address or contact information, (5) undergo sex
offender evaluation and treatment, and (6) register as
a sex offender. On October 5, 2011, the court, Damiani,
J., imposed another condition of probation, barring the
defendant from having any contact with the Office of
the State’s Attorney or any member of that office. The
defendant signed an agreement detailing the conditions
of his probation on March 15, 2012, and was released
from prison on October 31, 2012. The defendant again
signed an acknowledgment of the conditions of proba-
tion on May 3, 2017.
During his probation period, the defendant failed to
complete the required sex offender treatment program
and, consequently, was discharged from the program
in February, 2018. In a letter to Jason Grady, the defen-
dant’s probation officer, a therapist for the sex offender
treatment program informed Grady that the defendant
had been discharged due to his constant outbursts and
that the defendant’s individual sessions were ineffective
due to his escalating mental health instability. Grady
then attempted to locate the defendant in May, 2018,
after the defendant missed numerous probation
appointments. While searching for the defendant, Grady
discovered that the address provided by the defendant
for the sex offender registry was for an administrative
office and the defendant had not been living at that
listed address. Grady further learned that the defendant
had been arrested in Norwalk on June 28, 2018, for
charges of interfering with an officer in violation of
General Statutes § 53a-167a and breach of the peace in
violation of General Statutes § 53a-181. As a result,
Grady obtained an arrest warrant on July 20, 2018, for
violation of probation on the basis of the defendant’s
arrest in Norwalk, his failure to report to adult proba-
tion as directed, and his failure to keep Grady apprised
of his address. The defendant subsequently was
arrested on August 28, 2018, after an arrest warrant
was issued.
The defendant was arraigned on August 29, 2018, in
Superior Court in Norwalk for violation of probation
as well as for his refusal to submit to fingerprinting in
violation of General Statutes § 29-12. During the arraign-
ment, the defendant asserted that he wanted to repre-
sent himself for the bond hearing. The court, McLaugh-
lin, J., denied the defendant’s request to represent him-
self at the bond hearing and, instead, appointed a public
defender to represent the defendant for the bond hear-
ing only. The defendant repeatedly objected to the
appointment of counsel throughout the bond hearing.
Due to the defendant’s multiple outbursts during the
bond hearing, the defendant’s assigned public defender
requested that mental health treatment be provided by
the Department of Correction for the defendant.1 The
court granted the public defender’s request and ordered
on the mittimus that the defendant receive mental
health treatment. The violation of probation case was
thereafter transferred to the Superior Court in Water-
bury. The misdemeanor charges underlying the viola-
tion of probation remained in Norwalk, along with the
fingerprint charge.
On August 30, 2018, during the arraignment before
the Superior Court in Waterbury, the defendant contin-
ued his outbursts and insisted that he be allowed to
represent himself. The defendant’s assigned public
defender for the bond hearing in Waterbury informed
the defendant that he would not be permitted to repre-
sent himself. The defendant continued to interrupt the
proceedings while claiming that the court was violating
his right to represent himself. As a result of the defen-
dant’s multiple outbursts during the arraignment, the
assigned public defender requested that the court order
mental health and medical treatment for the defendant,
which request was granted by the court and ordered
on a second mittimus. The defendant’s violation of pro-
bation case was thereafter transferred to the judicial
district of Waterbury.
On September 12, 2018, the court, Fasano, J., asked
the defendant if he would like to have an attorney to
represent him, to which the defendant responded that
he would like to represent himself. The court then went
on to canvass the defendant in order to assess his ability
to represent himself, after the defendant reiterated his
desire to appear as a self-represented party. Following
the canvass, the court granted the defendant’s request
to represent himself in the violation of probation pro-
ceeding, concluding that the canvass satisfied its con-
cerns about whether the defendant was indeed compe-
tent to represent himself.
On October 9, 2018, the state filed a long form infor-
mation alleging five grounds for the violation of proba-
tion charge against the defendant. Specifically, the state
alleged that the defendant had failed to abide by the
conditions that he (1) not violate any criminal laws
of Connecticut, (2) report to his probation officer as
directed, (3) keep his probation officer informed of his
whereabouts, (4) complete sex offender evaluation and
treatment, and (5) provide truthful information to the
Connecticut State Police Sex Offender Registry Unit.
A violation of probation evidentiary hearing was held
on October 30, 2018.2
During the violation of probation hearing, the state
presented testimony from Charles Santiago, the proba-
tion officer who had completed the defendant’s proba-
tion intake and reviewed the conditions of probation
with the defendant on March 15, 2012, and Grady, the
defendant’s probation officer at the time of his arrest
for violation of his probation. Santiago testified that he
reviewed the conditions of probation with the defen-
dant prior to the defendant’s release and that the defen-
dant agreed to the conditions of probation by signing
the form delineating the conditions. Grady testified that
he typically had weekly check-ins with the defendant.
After the defendant missed several appointments,
Grady attempted to locate the defendant but could not
find the defendant at his home or at his father’s home.
Further, he testified that the defendant had changed
his address in the sex offender registry to an address
for an administrative office. The state rested its case
at the close of the defendant’s cross-examination of
Grady.
At the close of the October 30, 2018 hearing, the
defendant sought to have the court appoint Attorney
William T. Koch, Jr., as his defense counsel; however,
the court was unable to grant the defendant’s request
because Koch was not on the authorized list of special
public defenders. The court, however, advised the
defendant that he could retain Koch as private counsel.
The court then continued the evidentiary hearing until
December 30, 2018, to allow the defendant more time
to prepare after the defendant indicated that he
intended to call numerous witnesses to testify. The
court also admonished the defendant numerous times
for his repeated outbursts throughout the violation of
probation hearing.
On November 8, 2018, the defendant filed a request
with the court to be appointed a special public defender,
specifically, Koch. While in court on November 30, 2018,
a member of the public defender’s office indicated to
the court that the defendant was eligible for public
defender services. Nevertheless, the defendant then
insisted on continuing to represent himself and made
a request that Koch3 be appointed as his standby coun-
sel. The attorney with the public defender’s office who
was present in court that day informed the court that
Koch was not on the authorized list of special public
defenders, despite the defendant’s protestations to the
contrary. The court informed the defendant that he
would be appointed a special public defender to act as
standby counsel and that Koch would be appointed only
if he was indeed on the special public defender list.
While in court on January 2, 2019, Attorney J. Patten
Brown III was appointed as the defendant’s standby
counsel, and the court, sua sponte, also ordered a com-
petency evaluation of the defendant pursuant to Gen-
eral Statutes § 54-56d, after raising concerns about the
defendant’s ability to stand trial due to his outbursts.4
The defendant expressed that he had no intention of
cooperating with the § 54-56d competency evaluators.
On February 13, 2019, after receiving a report that
the defendant had failed to cooperate with the evalua-
tors, the court determined that the defendant was not
competent to represent himself and appointed Brown to
fully represent him. The court nevertheless determined
that the defendant was competent to stand trial because
of the presumption of competence. Specifically, the
court found that the defendant was ‘‘at least minimally
competent . . . in terms of understanding the nature
of the charges . . . and . . . capable of assisting in
[his] defense . . . [but] choose[s] not to . . . .’’ The
court determined that the defendant was minimally
competent to stand trial by comparing the defendant’s
conduct to what it considered to be the standard for
minimal competence.
The court, however, asserted that it did not believe
the defendant to be capable of continuing to represent
himself because of the motions that the defendant had
filed and because the defendant ‘‘[spoke] over the
court’s voice . . . disregard[ed] orders, [was] long
winded, [and asked] inappropriate questions . . . .’’
Brown, believing that the defendant presented compe-
tency issues, objected to the court’s determination that
the defendant was competent to stand trial to the extent
that the court had found him competent enough to
understand the nature of the charges and to assist with
his defense. Brown, consequently, requested another
§ 54-56d competency evaluation. The court overruled
Brown’s objection regarding its competency findings.
On March 12, 2019, Brown filed a motion seeking the
appointment of a guardian ad litem for the defendant in
order to obtain the release of the defendant’s protected
health information to assist in determining his compe-
tency. During a hearing on April 10, 2019, Brown
renewed his request for another § 54-56d competency
evaluation in light of the defendant’s assertion that he
would cooperate with the competency evaluators. The
court granted Brown’s request and ordered a § 54-56d
competency evaluation.
The violation of probation evidentiary hearing was
continued to May 9, 2019. On that date, the court
reported that the defendant once again had refused to
cooperate with the evaluators after it had ordered a
second evaluation for the defendant on Brown’s April
10, 2019 request. The court then reiterated its conclu-
sion that the defendant was competent to stand trial
but not to represent himself. Brown raised his objection
again as to the court’s conclusions and requested that
a guardian ad litem be assigned to the defendant or, in
the alternative, if the court believed the defendant to
be competent to stand trial, that it allow the defendant
to represent himself. The court denied Brown’s requests
because the defendant twice had failed to cooperate
with the evaluators and because the court, which ini-
tially had allowed the defendant to represent himself,
no longer believed that he was capable of doing so. The
defendant did not put forth any witnesses during the
evidentiary hearing nor did he testify. The court then
instructed the parties to present their closing arguments
as to whether the defendant had violated one or more
conditions of his probation and as to sentencing.
Following closing arguments, the court found the
defendant in violation of his probation. With respect to
sentencing, the court opened the defendant’s underly-
ing judgment, vacated the suspension order and
imposed a sentence of ten years of imprisonment, exe-
cution suspended after six years, and the remaining
period of probation. After learning that the misde-
meanor charges had been transferred to Waterbury,
Brown moved for a dismissal of those charges, which
the court granted. This appeal followed. Additional facts
and procedural history will be set forth as necessary.
I
The defendant first claims that the court’s canvass
regarding his waiver of his right to be represented by
counsel was constitutionally inadequate under Faretta
v. California, supra, 422 U.S. 806. Specifically, the
defendant contends that the court did not thoroughly
canvass him regarding his competence to make a know-
ing and voluntary waiver and failed to advise him of
his total maximum sentence exposure on both the viola-
tion of probation and the underlying misdemeanor
charges. As the state correctly observes, the defendant’s
Faretta claim is unpreserved; however, we review the
defendant’s claim pursuant to the bypass doctrine enun-
ciated in State v. Golding, 213 Conn. 233, 239–40, 567
A.2d 823 (1989), as modified by In re Yasiel R., 317
Conn. 773, 781, 120 A.3d 1188 (2015),5 because the
record is adequate for review and the defendant’s claim
is of a constitutional nature. The defendant’s claim,
however, fails under the third prong of Golding because
the defendant has failed to show the existence of a
constitutional violation.
The following additional facts and procedural history
are relevant to this claim. On September 12, 2018, the
court, Fasano, J., canvassed the defendant after he
asserted that he wanted to represent himself in order
to ascertain whether the defendant was knowingly,
intelligently, and voluntarily waiving his right to coun-
sel.6 After canvassing the defendant, the court found
that he was competent to represent himself.
‘‘It is well established that [w]e review the trial court’s
determination with respect to whether the defendant
knowingly and voluntarily elected to proceed [as a self-
represented party] for abuse of discretion.’’ (Internal
quotation marks omitted.) State v. Joseph A., 336 Conn.
247, 254, 245 A.3d 785 (2020). ‘‘In determining whether
there has been an abuse of discretion, every reasonable
presumption should be given in favor of the correctness
of the court’s ruling.’’ (Internal quotation marks omit-
ted.) State v. Cooke, 42 Conn. App. 790, 797, 682 A.2d
513 (1996).
‘‘The right to counsel and the right to self-representa-
tion present mutually exclusive alternatives. A criminal
defendant has a constitutionally protected interest in
each, but [because] the two rights cannot be exercised
simultaneously, a defendant must choose between
them. When the right to have competent counsel ceases
as the result of a sufficient waiver, the right of self-
representation begins. . . . Put another way, a defen-
dant properly exercises his right to self-representation
by knowingly and intelligently waiving his right to repre-
sentation by counsel. . . .
‘‘[A] defendant need not himself have the skill and
experience of a lawyer in order competently and intelli-
gently to choose self-representation . . . . Rather, a
record that affirmatively shows that [he] was literate,
competent, and understanding, and that he was voluntar-
ily exercising his informed free will sufficiently sup-
ports a waiver. . . . The nature of the inquiry that must
be conducted to substantiate an effective waiver has
been explicitly articulated in decisions by various fed-
eral courts of appeals. . . .
‘‘Practice Book § [44-3] was adopted in order to
implement the right of a defendant in a criminal case
to act as his own attorney . . . . Before a trial court
may accept a defendant’s waiver of counsel, it must
conduct an inquiry in accordance with § [44-3], in order
to satisfy itself that the defendant’s decision to waive
counsel is knowingly and intelligently made. . . .
Because the § [44-3] inquiry simultaneously triggers the
constitutional right of a defendant to represent himself
and enables the waiver of the constitutional right of a
defendant to counsel, the provisions of § [44-3] cannot
be construed to require anything more than is constitu-
tionally mandated. . . .
‘‘The multifactor analysis of [Practice Book § 44-3],
therefore, is designed to assist the court in answering
two fundamental questions: first, whether a criminal
defendant is minimally competent to make the decision
to waive counsel, and second, whether the defendant
actually made that decision in a knowing, voluntary and
intelligent fashion. . . . As the United States Supreme
Court [has] recognized, these two questions are sepa-
rate, with the former logically antecedent to the latter.
. . . Inasmuch as the defendant’s competence is uncon-
tested, we proceed to whether the trial court abused
its discretion in concluding that the defendant made the
waiver decision in a knowing, voluntary, and intelligent
fashion.’’ (Citations omitted; internal quotation marks
omitted.) State v. Joseph A., supra, 336 Conn. 254–56.
Further, as our Supreme Court observed in State v.
Cushard, 328 Conn. 558, 568, 181 A.3d 74 (2018), ‘‘the
court may accept a waiver of the right to counsel with-
out specifically questioning a defendant on each of the
factors listed in [Practice Book] § [44-3] if the record
is sufficient to establish that the waiver is voluntary
and knowing.’’ (Internal quotation marks omitted.)
The defendant, in essence, claims that the court did
not inquire sufficiently into whether he indeed was com-
petent to knowingly and voluntarily waive his right to
counsel. In response, the state argues that the court
fully complied with Practice Book § 44-3, even though
it was not required to do so, as strict adherence to § 44-
3 is not necessary to establish that a court’s canvass is
constitutionally sufficient. The state contends that the
canvass was adequate because (1) the record reflects
that the defendant was aware of his right to counsel
and the court repeatedly informed the defendant of his
right to counsel, (2) the exchange between the defen-
dant and the court exhibited that the defendant had the
intelligence and capacity to appreciate the conse-
quences of his waiver, (3) the record reflects that the
defendant understood the nature of the charges against
him because the defendant informed the court that his
arrest in Norwalk is what predicated the violation of
probation proceeding and that he knew that the maxi-
mum exposure for the violation of probation was ten
years, (4) the court repeatedly explained to the defen-
dant the pitfalls and dangers of representing himself,
and the defendant acknowledged the disparity between
the prosecutor’s legal education and his own, and (5)
the defendant indicated that he desired to represent
himself and was voluntarily deciding to do so despite
the potential disadvantages.
We begin by noting that the defendant’s request for
self-representation was clear and unequivocal. See Far-
etta v. California, supra, 422 U.S. 835. ‘‘[T]he focus of
a competency inquiry is the defendant’s mental capac-
ity; the question is whether he has the ability to under-
stand the proceedings.’’ (Emphasis omitted; internal
quotation marks omitted.) State v. Connor, supra, 292
Conn. 512. The record reflects a lengthy canvass con-
ducted by the court in which the defendant informed
the court that he had represented himself in previous
federal cases. Moreover, the court repeatedly asked
the defendant if he was waiving his right to counsel
voluntarily and whether he was aware of the disadvan-
tages of proceeding as a self-represented party, to which
the defendant answered affirmatively. There is no indi-
cation in the record that the defendant was unaware
that he was waiving his right to counsel or that he was
doing so involuntarily. ‘‘The purpose of the knowing
and voluntary inquiry . . . is to determine whether the
defendant actually does understand the significance
and consequences of a particular decision and whether
the decision is uncoerced.’’ (Emphasis omitted; internal
quotation marks omitted.) Id. Although the defendant
also argues that the trial court’s canvass was inadequate
because it did not ‘‘follow up or explore the defendant’s
obvious lack of legal education and training,’’ we fail
to see how an inquiry into the defendant’s legal training
and education would have had any bearing on his com-
petence to waive his right to counsel. ‘‘In other words,
the competence that is required of a defendant seeking
to waive his right to counsel is the competence to waive
the right, not the competence to represent himself. . . .
Consequently, a defendant’s technical legal knowledge
is not relevant to the determination [of] whether he is
competent to waive his right to counsel . . . .’’ (Cita-
tion omitted; emphasis omitted; internal quotation
marks omitted.) State v. Connor, supra, 511. Notably,
during the January 2, 2019 hearing, the defendant stated
that the court’s canvass during the September 12, 2018
arraignment had been thorough. On the basis of the
record, the court reasonably could have concluded that
the defendant was competent to waive his right to coun-
sel. Therefore, we conclude that the court did not abuse
its discretion in determining that the defendant know-
ingly, intelligently, and voluntarily had waived his right
to counsel. See State v. D’Antonio, 274 Conn. 658, 709–
11, 877 A.2d 696 (2005).
The defendant also claims that the canvass was con-
stitutionally deficient because he was not advised of
the total maximum sentence exposure for both the vio-
lation of probation and the underlying misdemeanor
charges.
During the canvass, the court advised the defendant
that he was ‘‘looking at a violation of probation where
[he] could receive up to ten years’’ of incarceration, to
which the defendant responded that he understood.
The defendant argues that the court should also have
indicated the maximum exposure for the misdemeanor
charges; however, as the state correctly notes, the defen-
dant was not arraigned on the misdemeanor charges
in Waterbury because those charges had not been trans-
ferred from Norwalk as of the defendant’s September
12, 2018 arraignment in Waterbury, when the canvass
took place. Thus, there was no need for the court to
canvass the defendant about the misdemeanor charges
that were not yet before it. The defendant also asserts
that his statement to the court during the canvass that
he would not be in jail for more than ‘‘ninety more
days’’ was an indication that he was not aware of his
maximum exposure at sentencing. A review of the
record reveals that the defendant’s statement concern-
ing the amount of time for which he believed he would
be incarcerated was premised on his belief that ‘‘[the
violation of probation proceeding] is nothing because
it’s a house of cards built on a foundation of lies and
a false arrest in Norwalk.’’ There is no indication that
the court did not apprise the defendant of the maximum
exposure for the violation of probation. Therefore, the
defendant’s unpreserved claim that the court’s canvass
was constitutionally deficient fails under the third prong
of Golding.
II
Alternatively, the defendant contends that, even if
the court’s canvass was adequate under Faretta, he is
entitled to a new trial pursuant to our Supreme Court’s
decision in State v. Connor, supra, 292 Conn. 483. Spe-
cifically, the defendant argues that he is entitled to a
new trial because he ‘‘suffered from an impairment
noticeable enough during the violation of probation
evidentiary hearing on October 30, 2018,’’ and could not
perform basic representational functions during that
hearing, such that the court should have appointed
counsel no later than the defendant’s attempted cross-
examination of the state’s first witness during that hear-
ing.7 In other words, the defendant asserts that the court
should have, sua sponte, determined that he was incom-
petent to represent himself. We disagree.
A review of the record reveals that the defendant had
difficulty formulating nonargumentative, noncompound
questions while cross-examining Santiago on October
30, 2018, during the first day of the evidentiary hearing.8
Our Supreme Court in State v. Connor, supra, 292 Conn.
518–19, exercised its supervisory authority and estab-
lished that, ‘‘upon a finding that a mentally ill or mentally
incapacitated defendant is competent to stand trial and
to waive his right to counsel at that trial, the trial court
must make another determination, that is, whether the
defendant also is competent to conduct the trial pro-
ceedings without counsel.’’ (Emphasis added.) On
appeal, the defendant claims, in essence, that his inabil-
ity to effectively cross-examine the state’s first witness
was an indication that he suffered from such a signifi-
cant mental impairment that the court should have,
sua sponte, determined that he was incompetent to
represent himself or, at the least, continued the pro-
ceeding so that the defendant’s competence to repre-
sent himself could be investigated further.
At the outset, we note that, after the defendant was
appointed full counsel on February 13, 2019, the court
gave the defendant the opportunity to recall the state’s
witnesses to reexamine them. The defendant, however,
declined the invitation to do so. We also note that the
defendant failed to cooperate with the competency eval-
uators during both of the court-ordered § 54-56d compe-
tency evaluations. Further, the defendant did not raise
any objections to the trial court concerning the timing
of the court’s appointment of counsel, which he now
claims on appeal came ‘‘too late.’’ The defendant
objected only to the court’s determination that he was
capable of assisting with his own defense. In response
to the defendant’s objection and argument, the court
granted his request for a second competency evalua-
tion. ‘‘Pursuant to § 54-56d (b), [every] defendant is
presumed to be competent.’’ (Internal quotation marks
omitted.) State v. Campbell, 328 Conn. 444, 486, 180
A.3d 882 (2018). Because of his failure to cooperate
with the competency evaluators, the presumption of
competency to stand trial was not rebutted. The defen-
dant’s failure to cooperate with the evaluators under-
mines his argument and now causes him to rely on
his alleged ineffective cross-examination of the state’s
witnesses to bolster his claim that an ‘‘impairment
noticeable enough’’ existed during the evidentiary hear-
ing on October 30, 2018, such that the court should
have determined that he was incompetent to represent
himself.
To the extent that the defendant relies on his inability
to effectively cross-examine the state’s first witness as
evidence of his incompetence to represent himself, our
Supreme Court in Connor addressed a similar claim.
The court in Connor reasoned that the defendant’s
lengthy and confusing questioning during voir dire, his
‘‘ ‘rambling dialogue’ with the court concerning his
health and the fact that he thought that correction offi-
cers planned to kill him . . . and . . . the [defendant’s
inability] . . . to pose relevant questions,’’ reflected
‘‘more on the defendant’s lack of legal experience and
expertise than . . . on his mental condition.’’ State v.
Connor, supra, 292 Conn. 524. Although, competency
to stand trial and competency for self-representation
are separate concepts, the defendant’s statutorily pre-
sumed competency to stand trial appertains to his com-
petency for self-representation. In that vein, we observe
that, with respect to the interrelated issue of compe-
tency to stand trial, our Supreme Court has held that
a defendant’s incompetence to stand trial is not ‘‘demon-
strated by his lack of legal competence to try his case
skillfully.’’ State v. Wolff, 237 Conn. 633, 666, 678 A.2d
1369 (1996); see also State v. Johnson, 253 Conn. 1, 30,
751 A.2d 298 (2000) (citing State v. Johnson, 22 Conn.
App. 477, 489, 578 A.2d 1085, cert. denied, 216 Conn.
817, 580 A.2d 63 (1990), for notion that ‘‘defendant’s
obstreperous, uncooperative or belligerent behavior
. . . and hostility toward [his] attorney [does] not nec-
essarily indicate defendant’s incompetency’’ (internal
quotation marks omitted)). Thus, in the present case,
the defendant cannot solely rely on his inability to effec-
tively cross-examine the state’s witnesses to establish
a purported impairment sufficient to sustain his claim
pursuant to Connor. The defendant’s failure to cooper-
ate with the competency evaluators adversely affects
his present claim, given the statutory presumption of
competency. The statutory presumption of competency
was not overcome by sufficient evidence. The fact that
an evaluation was merely ordered, but not completed,
does not alter the nature of the record before us.
On the basis of the record and the facts before the
court, there was insufficient evidence that the defen-
dant suffered from such a significant mental impairment
that the court should have, sua sponte, determined that
he was incompetent to represent himself. Although an
evaluation for the defendant’s competency to stand trial
would have been helpful in determining whether there
was a basis for the court to determine that the defendant
was incompetent to represent himself, the defendant,
nevertheless, still must demonstrate that there was suf-
ficient evidence to alert the court of a significant mental
impairment that required the court to exercise its pow-
ers sua sponte. Accordingly, the defendant’s claim
under Connor fails.
III
The defendant next claims that the court erred when
it failed, sua sponte, to canvass him about the waiver
of his constitutional right to testify. This claim is unpre-
served, but the defendant invites this court to provide
him a remedy in the exercise of its supervisory author-
ity. For the reasons set forth herein, we decline to do so.
‘‘[T]his court possesses an inherent supervisory
authority over the administration of justice. . . . [T]he
integrity of the judicial system serves as a unifying
principle behind the seemingly disparate use of our
supervisory powers. . . . [O]ur supervisory powers
are invoked only in the rare circumstance where [the]
traditional protections are inadequate to ensure the fair
and just administration of the courts . . . . Ordinarily,
our supervisory powers are invoked to enunciate a rule
that is not constitutionally required but that we think
is preferable as a matter of policy. . . . As our Supreme
Court explained, [s]upervisory powers are exercised to
direct trial courts to adopt judicial procedures that will
address matters that are of utmost seriousness, not only
for the integrity of a particular trial but also for the
perceived fairness of the judicial system as a whole.
. . . State v. Valedon, 261 Conn. 381, 386, 802 A.2d 836(2002). At the same time, [a]lthough [w]e previously
have exercised our supervisory powers to direct trial
courts to adopt judicial procedures . . . we also have
exercised our authority to address the result in individ-
ual cases . . . because [certain] conduct, although not
rising to the level of constitutional magnitude, is unduly
offensive to the maintenance of a sound judicial pro-
cess.’’ (Citations omitted; internal quotation marks
omitted.) State v. Jimenez-Jaramill, 134 Conn. App.
346, 380–81, 38 A.3d 239, cert. denied, 305 Conn. 913,
45 A.3d 100 (2012).
As the defendant concedes in his appellate brief, our
Supreme Court’s decision in State v. Paradise, 213
Conn. 388, 404–405, 567 A.2d 1221 (1990), overruled in
part on other grounds by State v. Skakel, 276 Conn. 633,
693, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S.
Ct. 578, 166 L. Ed. 2d 428 (2006), is controlling with
respect to whether a trial court is constitutionally
required to canvass a defendant about the waiver of
his or her right to testify. Paradise provides that federal
law does not ‘‘[contain] any such procedural require-
ment’’ for a trial judge to affirmatively canvass the
defendant ‘‘to ensure that his waiver of his right to
testify is knowing, voluntary and intelligent . . . where
the defendant has not alleged that he wanted to testify
or that he did not know that he could testify.’’ Id. In
the present case, the defendant has not claimed that
he expressed any such desire to testify at trial or that
he did not know that he could testify; therefore, the
court had no constitutional duty to canvass him con-
cerning his right to testify under Paradise.
The defendant, however, requests that this court
exercise its supervisory authority to ‘‘impose an affirma-
tive duty on our trial courts to canvass criminal defen-
dants and alleged probation violators even when the
defendant does not ask to testify or does not declare
he will not testify.’’ We previously declined a request
to exercise our supervisory authority with respect to a
similar issue in State v. Dijmarescu, 182 Conn. App.
135, 158–59, 189 A.3d 111, cert. denied, 329 Conn. 912,
186 A.3d 707 (2018), in which we declined to require
trial courts to canvass defendants regarding their right
against self-incrimination before testifying. ‘‘The exer-
cise of our supervisory powers is an extraordinary rem-
edy to be invoked only when circumstances are such
that the issue at hand, while not rising to the level
of a constitutional violation, is nonetheless of utmost
seriousness, not only for the integrity of a particular
trial but also for the perceived fairness of the judicial
system as a whole.’’ (Internal quotation marks omitted.)
Id., 158. We see no reason to depart from our decision
in Dijmarescu, in which we ‘‘conclude[d] that any deter-
mination of whether a court should be required to can-
vass a defendant regarding his right against self-incrimi-
nation before he testifies is better left to our Supreme
Court.’’ Id., 159. Accordingly, we decline the defendant’s
request that we exercise our supervisory authority with
respect to this claim.
IV
The defendant next claims that he was deprived of his
sixth amendment right to conflict free representation
because an actual conflict existed.9 The defendant con-
tends that an actual conflict existed because he threat-
ened Brown with physical violence and Brown pub-
lished it to the court.10 The state contends that the
record is inadequate to review this claim. We disagree
with the state because the basis for the alleged conflict
is readily apparent from the record, as it consists mainly
of the motion for appointment of a guardian ad litem
in which counsel indicated that the defendant made a
threat of physical violence. Because that is the basis
of the motion, the record is not inadequate to review
this claim, as the state contends.
The following additional facts are relevant to the
resolution of this claim. On March 12, 2019, Brown filed
a motion with the court seeking an appointment of a
guardian ad litem for the defendant. Although the
motion requested appointment of a guardian ad litem
‘‘for the purpose of obtaining releases of information as
necessary to determine [the defendant’s] competency,’’
nothing was developed in the record in connection with
the motion related to the existence of an actual conflict
of interest. It appears that Brown included, inter alia,
one sentence in that motion indicating that the defen-
dant had threatened him and the court with physical
violence.
We begin by setting forth the standard of review and
legal principles that govern our analysis. ‘‘Our review in
this case is plenary. Although the underlying historical
facts found by the . . . court may not be disturbed
unless they were clearly erroneous, whether those facts
constituted a violation of the [defendant’s] rights under
the sixth amendment is a mixed determination of law
and fact that requires the application of legal principles
to the historical facts of this case. . . . As such, that
question requires plenary review by this court unfet-
tered by the clearly erroneous standard. . . .
‘‘The sixth amendment to the United States constitu-
tion as applied to the states through the fourteenth
amendment, and article first, § 8, of the Connecticut
constitution, guarantee to a criminal defendant the right
to effective assistance of counsel. . . . Where a consti-
tutional right to counsel exists, our [s]ixth [a]mendment
cases hold that there is a correlative right to representa-
tion that is free from conflicts of interest. . . . The
right attaches at trial as well as at all critical stages of
a criminal proceeding . . . .
‘‘Our Supreme Court has described a conflict of inter-
est as that which impedes [an attorney’s] paramount
duty of loyalty to his client. . . . Thus, an attorney may
be considered to be laboring under an impaired duty of
loyalty, and thereby be subject to conflicting interests,
because of interests or factors personal to him that are
inconsistent, diverse or otherwise discordant with [the
interests] of his client . . . . Conflicts of interest . . .
may arise between the defendant and the defense coun-
sel. The key here should be the presence of a specific
concern that would divide counsel’s loyalties. . . .
‘‘In a case of a claimed conflict of interest, therefore,
in order to establish a violation of the sixth amendment
the defendant has a two-pronged task. He must establish
(1) that counsel actively represented conflicting inter-
ests and (2) that an actual conflict of interest adversely
affected his lawyer’s performance.’’ (Citations omitted;
internal quotation marks omitted.) DaSilva v. Commis-
sioner of Correction, 132 Conn. App. 780, 784–85, 34
A.3d 429 (2012).
The defendant argues on appeal that Brown’s asser-
tion concerning the defendant’s threats of physical vio-
lence, standing alone, was ‘‘an actual conflict . . .
because the defendant threatened [Brown] with vio-
lence and [Brown] published this [information] to the
court.’’ (Emphasis omitted.) Moreover, the defendant
argues that Brown’s decision to include that statement
in the motion was an indication that Brown’s perfor-
mance was affected by the purported threats. ‘‘To dem-
onstrate an actual conflict of interest, the [defendant]
must be able to point to specific instances in the record
which suggest impairment or compromise of his inter-
ests for the benefit of another party. . . . A mere theo-
retical division of loyalties is not enough.’’ (Internal
quotation marks omitted.) DaSilva v. Commissioner
of Correction, supra, 132 Conn. App. 785–86. A review of
the guardian ad litem motion that Brown filed, however,
demonstrates that the sole purpose of the motion and
the inclusion of the statement at issue was to obtain
releases of the defendant’s relevant health information,
which Brown needed in order to determine the defen-
dant’s competency. The defendant has not provided a
factual basis apart from the one sentence included in
Brown’s written motion that mentioned the defendant’s
threat to support his contention that an actual conflict
existed. The record does not reflect that Brown sought
to withdraw from further representation of the defen-
dant following the purported threat, nor does the record
contain any statements by Brown that are representa-
tive of divided loyalty. In the absence of additional facts
in the record in support of the defendant’s claim, we
are not persuaded that there was an actual conflict or,
stated differently, an ‘‘impairment or compromise of
[the defendant’s] interests for the benefit of another
party.’’ (Internal quotation marks omitted.) Id. Thus,
this claim fails.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual assault, we decline to use the defendant’s full name or to
identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
1
The purpose of the requested mental health treatment is unclear from
the record.
2
‘‘[R]evocation of probation hearings, pursuant to § 53a-32, are comprised
of two distinct phases, each with a distinct purpose. . . . In the evidentiary
phase, [a] factual determination by a trial court as to whether a probationer
has violated a condition of probation must first be made. . . . The state
must establish a violation of probation by a fair preponderance of the
evidence. . . . That is to say, the evidence must induce a reasonable belief
that it is more probable than not that the defendant has violated a condition
of his or her probation. . . . In the dispositional phase, [i]f a violation is
found, a court must next determine whether probation should be revoked
because the beneficial aspects of probation are no longer being served.’’
(Citations omitted; internal quotation marks omitted.) State v. Parker, 201
Conn. App. 435, 444–45, 242 A.3d 132 (2020).
3
Although the transcript references Attorney William Cox, the defendant
was actually requesting that Koch be appointed.
4
General Statutes § 54-56d provides in relevant part: ‘‘(a) . . . A defen-
dant shall not be tried, convicted or sentenced while the defendant is not
competent. For the purposes of this section, a defendant is not competent
if the defendant is unable to understand the proceedings against him or her
or to assist in his or her own defense.
‘‘(b) . . . A defendant is presumed to be competent. The burden of prov-
ing that the defendant is not competent by a preponderance of the evidence
and the burden of going forward with the evidence are on the party raising
the issue. The burden of going forward with the evidence shall be on the
state if the court raises the issue. The court may call its own witnesses and
conduct its own inquiry.
‘‘(c) . . . If, at any time during a criminal proceeding, it appears that the
defendant is not competent, counsel for the defendant or for the state, or
the court, on its own motion, may request an examination to determine the
defendant’s competency.
‘‘(d) . . . If the court finds that the request for an examination is justified
and that, in accordance with procedures established by the judges of the
Superior Court, there is probable cause to believe that the defendant has
committed the crime for which the defendant is charged, the court shall
order an examination of the defendant as to his or her competency. . . .’’
5
‘‘Golding is a narrow exception to the general rule that an appellate
court will not entertain a claim that has not been raised in the trial court.
The reason for the rule is obvious: to permit a party to raise a claim on
appeal that has not been raised at trial—after it is too late for the trial
court or the opposing party to address the claim—would encourage trial
by ambuscade, which is unfair to both the trial court and the opposing
party.’’ (Internal quotation marks omitted.) State v. Elson, 311 Conn. 726,
749, 91 A.3d 862 (2014).
‘‘Under Golding, a defendant can prevail on a claim of constitutional error
not preserved at trial only if all of the following conditions are met: (1) the
record is adequate to review the alleged claim of error; (2) the claim is of
constitutional magnitude alleging the violation of a fundamental right; (3)
the alleged constitutional violation . . . exists and . . . deprived the defen-
dant of a fair trial; and (4) if subject to harmless error analysis, the state
has failed to demonstrate harmlessness of the alleged constitutional violation
beyond a reasonable doubt. In the absence of any one of these conditions,
the defendant’s claim will fail.’’ (Emphasis in original; internal quotation
marks omitted.) State v. Lemanski, 201 Conn. App. 360, 365–66 n.3, 242
A.3d 532 (2020), cert. denied, 336 Conn. 907, 244 A.3d 147 (2021).
6
The following colloquy occurred at the time of the defendant’s arraign-
ment in Waterbury:
‘‘The Court: You have to be competent to represent yourself.
‘‘The Defendant: I am. . . .
‘‘The Court: So let me ask you some questions. I have to canvass you
about representing yourself, okay?
‘‘The Defendant: I understand that, Your Honor, yes.
‘‘The Court: You understand you have the right to be represented by an
attorney, even if you can’t afford an attorney? Do you understand you have
that right?
‘‘The Defendant: Yes, Your Honor.
‘‘The Court: Are you waiving that right voluntarily?
‘‘The Defendant: Yes. I have too much money to get a public . . .
defender.
‘‘The Court: Okay. Have you had any experience representing yourself?
‘‘The Defendant: Yes, Your Honor.
‘‘The Court: Yes?
‘‘The Defendant: Yes. I filed several federal lawsuits in federal court and
had positive results as a result. . . .
‘‘The Court: So you’ve handled these cases on your own; is that right?
‘‘The Defendant: Yes, Your Honor, over the years, yes.
‘‘The Court: Have you any law school—
‘‘The Defendant: Yes. The private school I went to in New Hampshire,
the last quarter of tenth grade and the eleventh grade when we studied law,
and I graduated at the end of eleventh grade before I turned sixteen in
September.
‘‘The Court: All right. So you’ve had occasion to study law. You understand
that the state has gone to college, has gone to law school, and they are very
well versed in the law. I just want to show you the disadvantages.
‘‘The Defendant: Well, Your Honor, there’s no case—
‘‘The Court: Just tell me if you understand that they’ve gone to law school
and college.
‘‘The Defendant: Yes, no problem.
‘‘The Court: You understand they have experience putting on these hear-
ings. You have a violation of probation. You don’t have any other pending
charges, right?
‘‘The Defendant: In Norwalk that is the basis for the violation of probation.
It was an illegal arrest, and I was assaulted . . . .
‘‘The Court: You’re going to represent yourself in that one, too?
‘‘The Defendant: Yes, Your Honor.
‘‘The Court: Let me tell you the disadvantages, if you understand them.
That’s all I need to do.
‘‘The Defendant: All right.
‘‘The Court: Number one: The state’s been to law school. Number two:
They’ve tried cases. They know how to put on evidence. They know how
to cross-examine witnesses. They know how to argue at the conclusion of the
evidence. These are all things you really haven’t had a lot of experience with.
‘‘The Defendant: Your Honor, [80] percent of the cases get pled out, okay.
‘‘The Court: Yes, I’m pretty sure I know that.
‘‘The Defendant: Right. I’m just reconfirming that I am competent to
represent myself pro se. Furthermore, this is nothing because it’s a house
of cards built on a foundation of lies and a false arrest in Norwalk.
‘‘The Court: You don’t have to argue your case just yet. I just want to be
sure you’re capable.
‘‘The Defendant: Yeah, no problem.
‘‘The Court: You have to understand all the advantages they have. And I
think you do understand that.
‘‘The Defendant: Thank you, Your Honor.
‘‘The Court: What’s the amount of time he could receive, the exposure?
‘‘[The Prosecutor]: Ten years. . . .
‘‘The Defendant: Maximum.
‘‘The Court: So you’re looking at a violation of probation where you could
receive up to ten years. Do you understand that?
‘‘The Defendant: Yes, Your Honor. I already have a habeas corpus put in
a year ago.
‘‘The Court: Because you’re going to be representing yourself, and at the
conclusion, you can’t really yell at your lawyer if you get up to ten years
in jail.
‘‘The Defendant: Your Honor, I’m not. I’ll be in jail for a maximum of
ninety more days, if that.
‘‘The Court: In any event, you understand the exposure?
‘‘The Defendant: Yes, Your Honor. Yes.
‘‘The Court: Nonetheless, you wish to proceed on your own?
‘‘The Defendant: Right.
‘‘The Court: You’re doing that voluntarily and of your own free will. You’re
aware of all the disadvantages that I enumerated, right?
‘‘The Defendant: Right.
‘‘The Court: You’re aware of the exposure in this particular case?
‘‘The Defendant: Yes, Your Honor.
‘‘The Court: All right. I’m satisfied that you’re competent, that you’re
capable of representing yourself.
‘‘The one other thing is you’re going to have to allow the state to state
its case. You’re going to have to listen to the orders of the court. You’re
going to have to comply with those orders and the rules of evidence and
so on. You understand that?
‘‘The Defendant: Yes. I just have one request. That when I’m speaking, I
don’t get interrupted by the district attorney’s office and vice versa. I will
not interrupt the district attorney’s office when they are speaking.
‘‘The Court: How about the court? Are you going to interrupt them?
‘‘The Defendant: No, I’m not going to interrupt you, Your Honor.
‘‘The Court: All right. I appreciate that. So you’re going to comply with
the rules?
‘‘The Defendant: Yes.
‘‘The Court: You’re going to give the state an opportunity to be heard.
You’re going to listen to the court. You’re going to let them finish its sentence
before you say something.
‘‘The Defendant: Yes.
‘‘The Court: So you’re going to be allowed to represent yourself.
‘‘The Defendant: Thank you. They can go first.’’
7
Although the defendant claims that counsel was not appointed until May,
2019, the record reveals that full counsel was appointed on February 13, 2019.
8
For instance, the following exchange occurred during the defendant’s
cross-examination of Santiago, the state’s first witness:
‘‘[The Defendant]: All right. Now the reason why you, when I met with
you and I was complaining about the public defender, the reason why you
committed perjury and falsely accused me of threating her was because
you were not happy that I was granted parole to the feds, and that it would
be less time for you guys to be able to violate my probation on a technicality
because even the federal probation officers did not want me released on
my release date, and that’s why they had me illegally put in Whiting Forensic
Institute without a prior court order, and that the Connecticut local mental
health authority said that there was no clinical reason to keep me locked
up in a mental hospital, and so you had that same feeling. Because any time
anybody says, sexual assault, it makes the rule book and the laws go, and
justice out the window.
‘‘[The State]: Objection, Your Honor.
‘‘The Court: Sustained. Here is the thing. You have to ask a question, not
tell the story. . . .
‘‘The Court: So, you ask a question now. . . .
‘‘[The Defendant]: So, why did you feel you were above the law? Because
you thought you weren’t going to get caught, or because you thought, well,
he’s a sex offender, and he’s got a long history of crimes? Nobody is going
to believe him? Or is it that you are in a position of authority and you think
you could do whatever you want . . . . So . . . why was it you felt that
you could lie?’’
9
The defendant also requests that this court review his ineffective assis-
tance of counsel claim on direct appeal. We decline to do so. ‘‘[A] claim of
ineffective assistance of counsel is more properly pursued on a petition for
new trial or on a petition for a writ of habeas corpus rather than on direct
appeal . . . [because] [t]he trial transcript seldom discloses all of the con-
siderations of strategy that may have induced counsel to follow a particular
course of action. . . . It is preferable that all of the claims of ineffective
assistance, those arguably supported by the record as well as others requiring
an evidentiary hearing, be evaluated by the same trier in the same proceeding.
. . . Furthermore, [o]n the rare occasions that [this court has] addressed
an ineffective assistance of counsel claim on direct appeal, [it has] limited
[its] review to allegations that the defendant’s sixth amendment rights had
been jeopardized by the actions of the trial court, rather than by those of
his counsel. . . . [This court has] addressed such claims, moreover, only
where the record of the trial court’s allegedly improper action was adequate
for review or the issue presented was a question of law, not one of fact
requiring further evidentiary development. . . . Additionally, this court has
observed that a defendant may pursue a claim of ineffective assistance in
a direct appeal in connection with a claim that his guilty plea was the result
of ineffective assistance of counsel. A claim of ineffective assistance of
counsel is generally made pursuant to a petition for a writ of habeas corpus
rather than in a direct appeal. . . . Section 39-27 of the Practice Book,
however, provides an exception to that general rule when ineffective assis-
tance of counsel results in a guilty plea.’’ (Citations omitted; emphasis
omitted; internal quotation marks omitted.) State v. Polynice, 164 Conn. App.
390, 396–97, 133 A.3d 952, cert. denied, 321 Conn. 914, 136 A.3d 1274 (2016).
The defendant’s claim that trial counsel provided ineffective assistance
by recommending three years of incarceration would require an evidentiary
hearing to ascertain the reasoning behind trial counsel’s recommendation.
‘‘The transcript of the proceedings in the trial court allows us to examine the
actions of defense counsel but not the underlying reasons for his actions.’’
(Emphasis in original; footnote omitted.) State v. Gregory, 191 Conn. 142,
144, 463 A.2d 609 (1983). For example, given the strength of the state’s
evidence regarding the defendant’s failure to comply with the conditions of
his probation, by advancing the foregoing argument, defense counsel may
very well have been attempting to mitigate the potential consequences of
a finding that the defendant was in violation of probation.
The record is inadequate, and, thus, we decline to review this claim on
direct appeal.
10
The defendant also claims that the court was ‘‘under the duty to inquire
whether there was a conflict of interest’’ when (a) trial counsel sought to
have a guardian ad litem appointed for the defendant, (b) the court became
aware that the defendant had filed a grievance against trial counsel, and
(c) trial counsel failed to cross-examine any of the state’s witnesses and
failed to present any defense. In essence, the defendant claims that the
court had a duty to inquire as to a potential conflict of interest; however,
the defendant provided little to no analysis of this claim and, instead, focused
his analysis on whether there was an actual conflict. ‘‘We are not required
to review issues that have been improperly presented to this court through
an inadequate brief.’’ (Internal quotation marks omitted.) State v. David P.,
70 Conn. App. 462, 473, 800 A.2d 541, cert. denied, 262 Conn. 907, 810 A.2d
275 (2002). We, therefore, decline to review the defendant’s claim that
the court had a duty to inquire about a potential conflict because it was
inadequately briefed.