State v. Gamer ( 2014 )

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STATE OF CONNECTICUT v. CHARLES GAMER
(AC 35617)
Lavine, Keller and Borden, Js.
Argued April 15—officially released August 5, 2014
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, geographical area number twenty,
Hudock, J.)
Andrew B. Bowman, for the appellant (defendant).
Melissa Patterson, assistant state’s attorney, with
whom, on the brief, were David I. Cohen, state’s attor-
ney, and Donna M. Krusinski, assistant state’s attorney,
for the appellee (state).
Opinion
LAVINE, J. This case turns on the maxim that,
although the trial court must assiduously defend an
accused’s right to counsel, the accused must not be
permitted to manipulate that right so as to obstruct the
orderly procedure of the court or to interfere with the
fair administration of justice. See United States v. Bent-
vena, 319 F.2d 916 (2d Cir.), cert. denied sub nom.
Ormento v. United States, 375 U.S. 940, 84 S. Ct. 345,
11 L. Ed. 2d 271 (1963); State v. Beaulieu, 164 Conn.
620, 627–28, 325 A.2d 263 (1973); State v. High, 12 Conn.
App. 685, 690, 533 A.2d 1217 (1987), cert. denied, 207
Conn. 801, 540 A.2d 74 (1988).
The defendant, Charles A. Gamer, Jr., appeals from
the judgment of conviction, rendered pursuant to a
guilty plea to larceny in the first degree in violation of
General Statutes (Rev. to 2007) §§ 53a-122 and 53a-119
(larceny case).1 On appeal, the defendant claims that
the court abused its discretion by permitting counsel
to withdraw his appearance, and consequently violated
his right to counsel under the sixth and fourteenth
amendments to the United States constitution, and arti-
cle first, § 8, of the constitution of Connecticut,2 in the
absence of his knowing and voluntary waiver of those
rights.3 We conclude that the court did not abuse its
discretion in granting counsel’s motion to withdraw and
finding on the basis of the defendant’s conduct that he
waived the right to counsel. We, therefore, affirm the
judgment of the trial court.
‘‘[T]he determination of whether there has been an
intelligent waiver of the right to counsel must depend, in
each case, upon the particular facts and circumstances
surrounding that case, including the background, expe-
rience, and conduct of the accused. . . . This important
decision rests within the discretion of the trial judge.’’
(Emphasis added; internal quotation marks omitted.)
State v. Caracoglia, 95 Conn. App. 95, 103–104, 895 A.2d
810, cert. denied, 278 Conn. 922, 901 A.2d 1222 (2006).
To determine whether the court abused its discretion,
we have undertaken an exhaustive review of all of the
transcripts of the court proceedings in this matter.
The procedural record is lengthy and reveals the fol-
lowing relevant facts, which we set out in detail to
provide the complete context of the proceedings. In
January, 2009, the defendant was arrested and charged
with larceny in the first degree.4 The defendant posted
a $200,000 surety bond on January 30, 2009. Attorney
Michael Sherman entered an appearance in the matter,
and on February 25, 2009, appeared before the court,
Dennis, J., to enter a plea of not guilty and to request a
jury trial on behalf of the defendant. Sherman appeared
before Judge Dennis again on March 24, 2009, and
stated: ‘‘This is the second time this matter is down,
Your Honor. State’s attorney [Suzanne] Vieux that was
here asked me a question about restitution, and it’s
something that we’re going to explore right now. He’s
going to be dealing directly with the—the victim in this
matter, purported victim.’’ The court moved the matter
to the pretrial docket.
Sherman appeared before Judge Dennis again on May
6, 2009, and stated: ‘‘This is a matter where there’s
apparently substantial restitution that might be neces-
sary. And I’m asking actually for that same date to see
. . . whether or not that’s going to be feasible, Your
Honor, before putting it on any jury list or anything of
that nature.’’ The court set May 28, 2009, for the next
court appearance. Sherman and the defendant appeared
before Judge Dennis on May 28, 2009, at which time
Sherman represented to the court: ‘‘Mr. Gamer is pre-
sent, Your Honor . . . . It’s a complicated case where
the victim is actually his family, and we’re trying to
secure . . . means of restitution. And I’m just asking
for a brief continuance to June 9 as well.’’
On June 9, 2009, Sherman stated to Judge Dennis
that he had spoken to Vieux ‘‘as well as the victim, who
is present in court, Your Honor, to agree upon a date.
And we’ve agreed upon July 15, Your Honor.’’ The court
agreed to the date and continued the matter on the
pretrial docket. Sherman and Vieux appeared in court
on July 15, 2009, to request a supervised pretrial. Judge
Dennis scheduled the matter for a pretrial to be held
before the court, B. Kaplan, J., on August 4, 2009.
On August 4, 2009, the defendant and Sherman
appeared before Judge Kaplan, who stated: ‘‘Mr. Gamer,
we had a big pretrial discussion with regard to this
case, and I think we’re going to place this matter on
the jury list because everybody is so far apart, or [there]
doesn’t seem to be any way to resolve this case. I will
tell you, though, that due to the serious nature of the
charge and the large amount of money involved in this
case, I would assume that the next judge is going to
give it a preference, okay, and the case may be reached
soon. I’m going to place this matter on the jury list, and
I’m going to continue it until—how’s September 24, Mr.
Sherman?’’ Sherman agreed to the date.
On or about September 24, 2009, Sherman filed a
motion to withdraw his appearance on behalf of the
defendant. In his motion, Sherman stated that ‘‘[t]here
has been a total breakdown of communication between
counsel and client, which has undermined counsel’s
ability to effectively represent the defendant. . . .
Countless calls to the defendant from counsel have been
ignored or not returned. . . . In [thirty-three] years of
practice, this is the FIRST motion of this nature I have
ever filed.’’
The court, Hudock, J., heard the motion to withdraw
on October 29, 2009. The following colloquy took place:
‘‘[Defense Counsel]: I made a motion, Your Honor,
to withdraw appearance. Mr. Gamer is well aware. And
I don’t think he has an objection.
‘‘The Defendant: No, that’s fine.
‘‘The Court: All right, and the claim is that the relation-
ship has broken down?
‘‘[Defense Counsel]: Communication issues, Your
Honor.
‘‘The Court: All right, let me see the motion. All right,
I’ll grant your motion. All right, Mr. Gamer, you are
now unrepresented.
‘‘The Defendant: Right.
‘‘The Court: That means you should probably discuss
this matter with another attorney. One of these matters
is a larceny one that goes back to January 30, 2009; just
so that you know. It’s very close, if it isn’t already, it’s
not on the hot list yet. But, you’re close to being on
the one hour for trial list. I will proceed to trial whether
you’re represented by counsel or not.
‘‘The Defendant: I understand.
‘‘The Court: So, you need to immediately proceed to
an attorney’s office and seek counsel. I’ll continue the
matter for, both matters for one week. I want to know
what your progress is.’’
On November 5, 2009, the defendant again appeared
before Judge Hudock and the following colloquy
took place:
‘‘The Defendant: You did ask me to get an attorney.
Michael Corsello is in courtroom C.
‘‘The Court: Okay, all right. So, he’s going to file an
appearance today.
‘‘The Defendant: That’s my understanding. We just—
just got to talk. Every—I have contacted, like, nine or
ten attorneys. Michael called me back, and he said that
no one called up to ask for him to come in. That’s all.
‘‘The Court: All right. Well, did you talk to him this
morning? . . .
‘‘The Defendant: I didn’t know that I was on the short
list. I just noticed that when we walked into the door.
‘‘The Court: You are—you are on the short list. . . .
So, I’m going to pass the matter. Tell Attorney Corsello
we’re waiting to see him. . . .
‘‘Attorney Corsello: Yes, we have spoken. We have
an appointment.
Unfortunately, I’m going to be out of town until Tues-
day. But we do have an appointment scheduled for next
week . . . .
‘‘The Court: All right. Well, just so that you know
. . . the matter is on the hot list. So, it’s not the oldest
file, but it’s certainly up there. So, just be aware that
if you do file an appearance, the pressure will be on. I
mean, I’ll give you a reasonable time to prep, as we
say. But the time period gets shorter because of your
late appearance . . . .’’ The court continued the case
until November 13, 2009, when the defendant next
appeared before Judge Hudock without counsel. The
defendant represented to the court that he had met
with counsel, and that counsel had asked him to appear
and request time to prepare the case. The court stated
that it did not understand the defendant’s request. The
following colloquy occurred:
‘‘The Court: Did you hire an attorney or did you not?
‘‘The Defendant: We are in the process of putting
some—I have not retained him yet, trying to. Just met
on Wednesday night, and then we were trying to meet
yesterday and we couldn’t.
‘‘The Court: No, I understand that. I also understand
that you have a matter that goes back to January of
2009. So, I’ll give you until November 30. You’d better
have a lawyer in there then.’’
The defendant appeared without counsel before
Judge Hudock on November 30, 2009. He represented
that he had additional discussions with Corsello and
that another attorney from his firm would be filing
an appearance. The court continued the matter until
December 7, 2009, stating to the defendant: ‘‘Sir, you—
you do have one of the older cases on the docket. I
am trying to accommodate you in your efforts to get
counsel. It does no one any good to come into this . . .
as someone representing themselves in my opinion
. . . . Even if you were a lawyer. If I were a lawyer
charged with a criminal offense, I would have a lawyer
standing next to me. . . . You are charged with larceny
one. The maximum sentence could be twenty years—
state’s prison. . . . You’re charged with larceny two,
issuing bad checks. You need an attorney.’’ The court
also entered a plea of not guilty and jury trial election
with respect to the bad check case. See footnote 1 of
this opinion.
The defendant appeared before Judge Hudock with-
out counsel on December 7, 2009, and stated that he
was talking with another attorney. The court stated that
the defendant had failed to comply with the court’s
advice to retain counsel. The court set the matter down
for jury selection on January 11, 2010. The defendant,
however, did not have an attorney when he appeared
before Judge Hudock on January 11, 2010. The court
stated to the defendant that he was on twenty-four hour
notice to pick a jury, but continued the matter until
January 25, 2010. On January 25, 2010, the defendant
again was without counsel, and Judge Hudock contin-
ued the matter until February 22, 2010. The defendant
was still not represented by counsel on February 22,
2010. Vieux informed the court that the state was ready
to proceed and that it would object to any continuance
counsel retained by the defendant might request.
Although Judge Hudock stated that the case could be
called for trial in one week, he again continued the
matter until March 15, 2010.
On February 25, 2010, however, the case was called
for trial. The state represented to Judge Dennis that it
was ready to proceed on the charge of larceny in the
first degree. The court was aware that Judge Hudock
had informed the defendant that the case was on
twenty-four hour notice and asked the defendant if he
intended to represent himself. The defendant stated:
‘‘No, Your Honor.’’
Judge Dennis asked the defendant how he intended
to proceed and identified sixteen dates on which the
case had been called since February 25, 2009. The defen-
dant stated that he had spoken to law firms, but he had
a problem finding the financial resources to retain an
attorney, although he was attempting to liquidate some
assets. Moreover, the defendant stated that an
unnamed lawyer had suggested to him that he apply
for a public defender. The court passed the case to
permit the defendant to apply for a public defender.
When the defendant returned to court, he was accompa-
nied by Attorney Christine C. Schwartzstein of the pub-
lic defender’s office. Schwartzstein stated to the court
that the information contained in the defendant’s appli-
cation for a public defender was vague, and that the
defendant needed to produce certain bank statements
and tax returns. The court passed the matter until the
afternoon to provide the defendant an opportunity to
obtain information from his and his wife’s personal and
business accounts. The defendant failed to provide the
necessary information when court reconvened in the
afternoon and claimed to be confused as to what infor-
mation was needed.5 The court instructed
Schwartzstein to write down the information the defen-
dant needed to provide the public defender’s office to
complete his application and continued the matter until
the next morning.
The defendant provided the public defender with
additional information on February 26, 2010. The public
defender’s office determined, however, that the defen-
dant was not eligible to receive its assistance due to a
‘‘considerable amount’’ in a business bank account. In
the alternative, Schwartzstein volunteered to identify
attorneys in the courthouse that day who might be able
to represent the defendant. Judge Dennis also asked
Schwartzstein to provide the defendant with a list of
attorneys he could approach.
The case was again continued until March 12, 2010.
The court told the defendant: ‘‘[y]ou need to have some-
body on board by Friday, March 12, and here, and we
will discuss scheduling from there. And, certainly, I’ll
try to be flexible with any attorney who is coming on
board in terms of other commitments that he or she
might have.’’
When the defendant appeared before Judge Dennis
on March 12, 2010, he represented that with the assis-
tance of the public defender’s office, he had secured
Attorney Matthew L. Brovender to represent him. Assis-
tant State’s Attorney Donna M. Krusinski demurred,
stating: ‘‘But I do want to make the record clear that
Attorney Brovender called me personally and said he
had agreed to meet with [the defendant, but] he has
not been hired yet.’’ The court continued the case until
March 26, 2010.
On March 26, 2010, the defendant appeared in court
without counsel. Judge Hudock stated that it was his
understanding that the defendant had ‘‘been canvassed
by Judge Dennis as to a waiver of counsel. It is my
understanding that you refused to waive your right to
counsel; however, I will note as follows: that you have
retained Attorney Sherman at one point. You have
posted bonds in these matters, you have, on a number
of occasions in my presence, been canvassed as to your
right to have an attorney. . . . You have been advised
on a number of occasions that you should retain
counsel.
‘‘I note that Attorney Sherman withdrew as counsel
on [October 29, 2009]. I note that you were in court on
November 5, November 13, November 30, [December
7], January 11, January 25, February 22, February 25,
February 26, [March 12 and March 26]. Each of those
occasions, I continued the matter, or Judge Dennis con-
tinued the matter, for you to seek the services of coun-
sel. It is my understanding that the latest discussion
has been with . . . Brovender. You have apparently
not succeeded in hiring Brovender, as of this date. . . .
The court finds, as of this moment, that you have, for all
intents and purposes, waived your right to an attorney. I
will appoint standby counsel for you; that will be Attor-
ney Popilowski. That is standby attorney, sir . . . to
be there if you have a question.’’6
The court inquired of the defendant whether he
wanted to have an on-the-record discussion with the
prosecutor and the court regarding a disposition of the
case, ‘‘shy of trial . . . .’’ The defendant stated that ‘‘it
is wise to do that with counsel.’’ And then responded,
‘‘[n]o.’’ He represented to the court that he had spoken
with Brovender but had not retained him due to a ‘‘finan-
cial matter.’’ The defendant expected to take the action
necessary to raise the money necessary for Brovender
to represent him ‘‘in short order.’’
Vieux stated, however, that Brovender had informed
her office that he was not going to represent the defen-
dant. Vieux also stated that if the defendant ‘‘wishes to
engage in any conversation with regard to resolving
these cases where he does not end up locked up, today
is the time to do it. The state really would not be enter-
taining anything after today, short of incarceration, as
a disposition.’’
The court addressed the defendant: ‘‘I’m willing to
discuss with you, and this is totally voluntary on your
part, I am willing to discuss with you partial restitution
in exchange for a suspended sentence and probation.
You would have several months to make a certain
amount of restitution, a smaller amount than what I
understand is the total amount that is alleged, in
exchange for a suspended sentence and probation
where the remaining amounts, as verified by the proba-
tion department, would be made to the victim to make
the victim whole.
‘‘If that is appealing to you, sir, we can have that
discussion. If not, if you still wish to seek the services
of counsel, then that offer may not be available. It’s up
to you as to whether you wish to discuss the matter of
a suspended sentence and probation, in exchange for
a plea of guilty conditioned upon restitution of a per-
centage of the total alleged. Now is the time to do it.’’
In response, the defendant stated: ‘‘I would love to
talk about that. I just didn’t know . . . what was being
offered. I didn’t know what the nature of the discussion
was.’’ The court then repeated its plea offer7 and permit-
ted the defendant time to consider it. The court restated
its plea offer and also stated that ‘‘[i]f you don’t make
the restitution, there would be . . . an open plea,
which means the state can ask for incarceration.’’ The
defendant stated, ‘‘I understand.’’ The court assured the
defendant that, if the defendant did not make the initial
$25,000 restitution by sentencing, there would be a split
sentence, ‘‘as we call it, to be divided between incarcera-
tion and probation.’’ The court informed the defendant
that the total restitution consisted of $227,863.24 in the
larceny case plus $7070 in the bad check case.8 The
defendant stated that he understood that he would go
to prison if he did not pay $25,000 by the time he was
sentenced and that the plea offer ‘‘[s]eems fair . . . .’’
The court continued the matter until 2 p.m. for the
defendant to consider its plea offer.
The defendant returned to court at 2 p.m. and stated,
‘‘I would like to move forward with the offer. . . . And
I did have a chance to talk to those who, I would say,
advised me. I did have a couple of questions that I
needed to pose to you; I think that is the proper way.’’
(Emphasis added.) The court permitted the defendant
to ask questions regarding the plea offer.
In response to the defendant’s inquiry as to whether
the probation office would perform a forensic account-
ing, the court stated that it would order the probation
office to verify the not-to-exceed amount of restitution
it would order. The court stated that it would order the
probation office to verify the amount due.
The defendant asserted that the amount of restitution
due on the larceny case was inaccurate. The court
informed the defendant that he could bring that issue
to the attention of the probation office. The defendant
also stated that there was a letter stating that the victim
owns a percentage of the company in return for an
investment. He asked the court to void that purported
agreement. The court declined to become involved,
questioning whether it had jurisdiction in the matter.
The defendant also stated that he did not believe that
the complaining witness in the bad check case had
performed all of the services he claimed. The court
advised the defendant to consult with an attorney to
‘‘seek advice on the civil side.’’
During the luncheon recess, the defendant met with
Vieux, who represented that if he accepted the court’s
plea offer, the state would accept the defendant’s guilty
plea in the larceny case and enter a nolle prosequi in
the bad check case. The defendant would be required
to pay restitution in both files. See footnote 7 of this
opinion. They appeared before the court in the after-
noon and agreed on a sentencing date in July, 2010.
Thereafter, the defendant withdrew his prior plea
of not guilty and election of a jury trial. The de-
fendant pleaded guilty to larceny in the first degree
in accordance with the facts in the arrest warrant
as recited by Vieux.9 The court canvassed the defen-
dant10 and stated: ‘‘I should indicate to you that you are
giving up rights. You are giving up your right to be
represented by counsel. You represent yourself, is that
correct?’’ The defendant responded affirmatively.11
After canvassing the defendant, the court found that his
guilty plea was knowingly, voluntarily, and intelligently
made, and that he knowingly, voluntarily, and intelli-
gently waived the right to counsel. The court accepted
the defendant’s guilty plea to larceny in the first degree
and ordered sentencing for July 22, 2010. The court
instructed the defendant to speak with the probation
office upon leaving the courtroom and asked if he had
any questions. The defendant stated: ‘‘Nope, I appreci-
ate your patience, and I know that I have tested that.’’
Judge Hudock called the parties back to court on
April 14, 2010, and stated that during his canvass of the
defendant, he had failed to ask certain questions. The
court vacated the defendant’s guilty plea in the larceny
case.12 The court asked the defendant if he still wanted
to plead guilty to the charge of larceny in the first
degree. The defendant stated: ‘‘I do.’’ The defendant
pleaded guilty, Krusinski stated the factual basis of the
charge, and the court recited the terms of the plea
agreement. The court inquired of the defendant whether
the agreement was the one he had reached with the
state.
The defendant stated: ‘‘We also had a piece in there
about probation would perform an audit. And I’ve con-
tacted two forensic accounting firms to take a look at
the numbers because I don’t in any shape or form agree
with the numbers. I agreed with what I did with the
plea . . . .’’ (Emphasis added.) The court addressed
additional questions to the defendant, who agreed with
the plea terms as stated by the court. After the court
addressed one of the defendant’s questions,13 the court
continued its canvass of the defendant, which included
the elements of the crime of larceny in the first degree.
The defendant responded in the affirmative when asked
whether he understood that he did not qualify for the
services of a public defender, that he had decided to
represent himself, and that he was giving up certain
rights. The defendant agreed that no one had threatened
him and that his plea was voluntary.
The court reminded the defendant that paying $25,000
partial restitution prior to sentencing was a critical part
of the plea agreement. The defendant then asked the
court how it came up with that number. The following
colloquy then occurred:
‘‘The Court: I did not come up with that number. The
number was reached between you and the prosecu-
tor’s office.
‘‘The Defendant: I heard about it first from you. That’s
the reason I was asking where that number came from.
‘‘The Court: That was not my understanding.
‘‘[Assistant State’s Attorney Krusinski]: Not mine,
either. My supervisor, Attorney Vieux, stated that she
had spoken to [the defendant] before he pled, and it
was [an] agreed upon number.
‘‘The Defendant: You know, it’s fine. I just didn’t know
. . . where the number came from.
‘‘The Court: No, no, you said, you said the magic
words. So, at this point, everything is vacated. And is
Mrs. Vieux going to be here tomorrow?
‘‘[Assistant State’s Attorney Krusinski]: Yes, I will not
be here, and this is my trial file.’’
The court ordered the defendant to return to court
the next day. The following colloquy occurred:
‘‘The Defendant: You know what, I may be wrong.
‘‘The Court: You did not discuss this $25,000, that’s
your statement. You did not discuss the $25,000 figure
with prosecutor Vieux. That is contrary to what I under-
stood, what I knew at the time that the original plea
was taken. Now, you’ve said for the record that that
was not your agreement; that I just threw that figure
out. You’ve asked me how I came up with that figure.
And I’ve told you how I came up with that figure, which
was, it was my understanding that you had discussed
that disposition with prosecutor Vieux.
‘‘The Defendant: I’m not trying to throw a wrench
in this.
‘‘The Court: No.
‘‘The Defendant: I’d like to proceed, but I just, I may
be wrong, okay. I may be wrong. I just didn’t know
where the number came from. And if it was a number
that they have decided on, I thought it was a practice
of law, not a . . . .
‘‘[Assistant State’s Attorney Krusinski]: Your Honor,
if I may, I know I was not here on the date of the plea;
however, court personnel [were] here, and if he had a
question of the $25,000, it should have been brought
up the first time you pleaded, sir. How is it, suddenly,
now, something you don’t understand?
‘‘The Defendant: Well, because the last time I was in
front of the judge, there was—it was a little bit of a
different situation. He made it very clear that I was to
proceed with this case, and that I would be brought
back into a courtroom every time there was a court
case in session, and I would have to observe that if I
was going to be . . .
‘‘[Assistant State’s Attorney Krusinski]: But that’s not
what I’m asking you. I’m asking you about the $25,000.
When you pled guilty on the last court date, the $25,000
was put on the record in front of staff, in front of public
defenders. They all heard it put there. You could’ve
questioned it at that moment. What has changed from
three weeks ago till today that it’s a new number to you?
‘‘The Defendant: I have a chance to ask a question
about that amount. I didn’t know where that amount
came from. I thought it was something that was estab-
lished by a practice of law, not something that was
decided by a prosecutor. I didn’t remember having the
discussion with her. And I’m not trying to throw a
wrench in this . . . . I simply don’t think I asked. I
should’ve asked that question before. I would’ve gotten
clarity back then, and now, I’m just asking.’’
The court vacated the defendant’s plea and ordered
the defendant to return to court the next day to speak
with Vieux. If the defendant and Vieux agreed, the court
would recanvass the defendant.14 The matter was con-
tinued until April 16, 2010, when the defendant and
Vieux appeared before Judge Hudock.
The court stated that it presumed that the defendant
had met with Vieux the previous day and asked the
defendant what he wanted to do.
‘‘The Defendant: . . . I’ve had a chance to talk to a
legal adviser, and I have to admit, I think after meeting
with the prosecutor yesterday, I am more confused than
. . . than when were . . . not confused . . . more so
. . . more questions than ever. . . .
‘‘The Court: . . . If you’re confused, then you’re
back on trial. You’re back on the jury list. You will be
here Monday morning . . . by 10. You will be sitting
in this courtroom. You will be watching other trials.
You will be here every day after that to watch trials.
There will be two trials. You will be here from 10 until
the end of the court day each of those days. And then,
when those two trials are completed, you will begin
picking a jury. I’m doing this so that you can be witness
to the court proceedings in a trial, in two trials. One is
a court trial, and one is . . . a jury trial. You should
pay attention to how juries are selected. You should
pay attention as to how witnesses are examined and
cross-examined. Thank you. See you Monday.’’ (Empha-
sis added.)
Before the proceeding concluded, however, Vieux
stated that the defendant had represented that he had
consulted a forensic accountant with respect to the
amount of restitution. She requested in an oral motion
for discovery that the defendant disclose his witness
list so that the state could conduct an investigation
prior to trial. The following colloquy occurred:
‘‘The Court: All right. You indicated on the record on
Wednesday that you had retained the services of a cou-
ple of forensic accountants, if I recall correctly, as it
related to the amount of restitution that the . . . state’s
attorney was claiming. You should put those names and
addresses on the record at this point.
‘‘The Defendant: Your Honor, considering the fact
that we were talking about working with probation,
that was three or four months out, I haven’t secured
them completely because it’s the middle of tax season.
I did already talk to the accountant, and I can give you
his name. His name is Nick Pugliski. He’s an accountant
in White Plains [New York]. I’ll give you the contact
information. He’s familiar with this. But we haven’t
scheduled a time to do it because [I] didn’t know that
this was coming to trial in the next couple of days.
We thought that this was something we’d work on with
the probation group and that gave everybody a . . .
you know, at least another thirty days to start to . . .
or get the work done. This is . . . again, this is just
speeding everything back up again, and this is what I
think led to the confusion that we had and why I had
been brought back in on this past Wednesday. . . .
‘‘The Court: Sir, I did not speed anything up. I indi-
cated to you that I had failed to ask you a couple of
questions on the canvass, and so I reopened the canvass.
‘‘The Defendant: Then . . . I am . . . mistaken.’’
The court addressed the defendant at length with
respect to the defendant’s assertion that the court was
speeding things up.15 The defendant was given an oppor-
tunity to make a statement in which he stated, in part:
‘‘I want this over as much as anybody else. But economic
conditions in my life, economic conditions for a lot of
people, meant that I didn’t have the money to go forward
with a private attorney. I applied for a public defender,
okay. It was determined based on a bank account that
my wife had for her business, which is now a third of
what it was before, was enough reason not to award a
public defender.’’
Vieux thereafter read from the March 26, 2010 tran-
script of the defendant’s plea, specifically noting the
details of the $25,000 restitution required prior to sen-
tencing. She expressed annoyance with the defendant
and agreed with the court that the defendant was stall-
ing. Vieux stated that the state would now request that
the defendant’s sentence include a period of incarcera-
tion and that it was no longer willing to nolle the charges
in the bad check case. The court explained in detail to
the defendant the state’s change in its position. Despite
the fact that the state withdrew its support of the plea
agreement, the court stated that it was willing to ‘‘stick
by the previous . . . agreement’’ if the defendant
wanted it, but it was not willing to ‘‘put up with this
again. Because it’s telling me that once again, you have
a tendency to stall, stall, stall, and stall.’’ The court
stated that the defendant had until Monday to consider
the plea agreement the court was offering.
The defendant and Krusinski appeared before Judge
Hudock on April 19, 2010, when the defendant pleaded
guilty. Krusinski stated for the record: ‘‘The state is
asking for ten years suspended, five years [of] proba-
tion, a presentence investigation to be ordered, a
$25,000 good faith restitution payment due on that date
and then restitution as found to be owed by probation
for the rest of his five years, to pay it back.’’ If the
defendant did not pay $25,000 in restitution by the date
of sentencing, the state would seek an open plea not
to exceed ten years of incarceration. The court ordered
the defendant to state his understanding of the disposi-
tion of the larceny case.
The defendant stated his understanding of the dispo-
sition: ‘‘The disposition is, I am pleading guilty to lar-
ceny one, and there is a $25,000 payment required
before sentencing. . . . And if that is not paid, there
is an open plea and the state has its right to prosecute
me to the fullest extent.’’ The court corrected the defen-
dant, stating that the state could seek twenty years in
prison, but that it was limiting the time in the defen-
dant’s case to ten years. The defendant stated that he
understood that the state was willing to leave the resti-
tution open to permit the probation office to verify out-
of-pocket expenses of the complainant. He also stated
that he understood that the prosecutor set the amount
of $25,000 due at the time of sentencing and that he
had agreed to that figure. Moreover, the defendant
stated that he had no questions about the plea
agreement offered to him.
During the ensuing plea canvass, the defendant
affirmed that he was not represented by an attorney
and that he wanted to proceed without the assistance
of counsel. The court informed the defendant of the
elements of the crime of larceny in the first degree, and
that it carried a maximum penalty of twenty years in
prison and a fine not to exceed $15,000. The court
informed the defendant of the constitutional rights that
he was giving up, including the right to counsel, the
right to be tried by a jury with the assistance of counsel,
the right to present a defense, and the right to have
the state prove him guilty beyond a reasonable doubt,
among others. The defendant affirmed that he wanted to
relinquish those rights and that his plea was voluntary.
Krusinski stated the factual basis of the larceny case
and the bad check case. The defendant admitted that
the essential facts as stated were accurate, that the
larceny exceeded $10,000, and that he was pleading
guilty because he was guilty. The court found that the
defendant’s guilty plea was made knowingly, volunta-
rily, and intelligently. The court ordered a presentence
investigation and set sentencing for July 22, 2010.
The defendant, Krusinski, and the victims appeared
before Judge Hudock on July 22, 2010. The defendant
stated, ‘‘[n]o,’’ when the court asked him if the $25,000
restitution was forthcoming. Thereafter, the victims
addressed the court,16 and Krusinski set out the factual
basis for each of the charges against the defendant.
Krusinski stated that in his written statement the defen-
dant showed no remorse and blamed his family for his
situation. Krusinski also stated that the defendant had
attended Pepperdine University, has owned businesses,
and claimed to have been the president of several com-
panies. On behalf of the state, Krusinski asked the court
to sentence the defendant to ten years in prison, execu-
tion suspended after three years, and five years of pro-
bation with the condition of restitution.
The defendant made a lengthy statement in which,
for the first time in all of the extended proceedings, he
essentially denied taking money from his mother. He
claimed that his mother gave him money as an invest-
ment in his new business and that she has a document
demonstrating the number of shares she has in the
corporation.17 The defendant represented that his
mother agreed to pay the interest on the money she
gave him. He claimed that he helped his mother manage
the refinancing of a nursing home, deal with unions,
and renegotiate a buyout. He also claimed that his
mother and sisters benefited financially from the time
he dedicated to helping his mother with the nursing
home18 and that they were ungrateful. He claimed to
have been used by his mother and sisters, and that he
was quite upset about the manner in which they had
treated him.19
The defendant stated that no forensic investigation
was ever conducted regarding the amount taken from
his mother’s account. More specifically, the defendant
stated: ‘‘I believe that we had an agreement with the
court when you and I met that said I will have probation
perform forensic accounting to determine what the
appropriate restitution should be.’’ At that point, the
court interrupted the defendant, and the following col-
loquy occurred:
‘‘The Court: First of all, when we met, we were in a
courtroom at the time and you were being canvassed.
Is that correct?
‘‘The Defendant: Sure.
‘‘The Court: All right. Well, let’s be specific about
when we met. . . . We were in court, and I can-
vassed you.
‘‘The Defendant: Mm hmm.
‘‘The Court: And I indicated to you as follows because
you questioned me at length on this point, and I indi-
cated to you that it would be verified by the probation
department, restitution, but that under any circum-
stances, you were to make a down payment, a good
faith payment in the amount of $25,000; that once you
. . . had paid that down payment and that probation
had determined an amount that you needed to pay, that
would be the amount. So, you and I did not agree that
prior to this date there would be some sort of forensic
analysis. The verification by the probation department
as to what you would owe would be performed upon
the starting of your probation.
‘‘That was . . . made perfectly clear to you, sir. You
questioned me on it, and I answered. So, let’s be accu-
rate in your representations because I noticed that you
made reference to this in your statement, and it is not—
it is not a condition—precondition to sentencing that
that verification take place. Do you understand that?
‘‘The Defendant: Well, that wasn’t my understanding
at the time, and that’s why I wrote it down here.’’
The defendant continued his lengthy statement:
‘‘Now, if I’ve forgotten anything, it’s because I under-
stand that I’ve been talking for quite a long time. But
I did cover everything in this document. I did receive
some advice from an attorney that this would be some-
thing that would be very, very important because as
you and I discussed in the past, I didn’t really have a
chance to ever tell my side of the situation. It was,
you did something wrong, you should be punished, and
that’s it. . . .
‘‘And I stand by my statement. . . . [T]here was
nothing done illegal. I did everything by the book. In
fact, we contacted—my former attorney contacted the
FBI, and we asked why they didn’t get involved, and
they said because there wasn’t any forgery. I didn’t take
checks. I had simply walked into a bank that my mother
had contacted and had met and knew these people, and
she approved $90,000 to be withdrawn. And they put
the checks together. They wrote my name on it, and
they wrote the company name on it. I signed them and
cashed them, and I told my mom what was going on.
. . . [T]hat’s exactly the truth.’’
When the defendant concluded his statement, the
court addressed him stating: ‘‘All right. You’ve entered
a plea of guilty to larceny in the first degree. Your plea
was found to be knowing, voluntary, and intelligent.
You have waived your rights to an attorney. You waived
your rights to trial. You were canvassed on a number
of occasions. And I’ll put on the record, I indicated to
you on any number of times prior to your plea of guilty,
that you should seek counsel. You have forgone all of
that. . . .
‘‘You have voluntarily, knowingly, waived all of those
rights. You are an intelligent individual. It should not
have taken you a road map to figure out the rights you
were giving up. But I provided you that road map over
a fair number of months. So, don’t tell me, at this point,
that you have been prevented from presenting your
case. Don’t tell me that you have been prevented from
investigating what needs to be investigated, in your
opinion.
‘‘I note that in November of 2004, you were convicted
of issuing bad checks. You were given a probationary
term and a $500 fine, as well as a $1000 fine. I note that
you were offered from the state, the sentence in the
alternative, that in exchange for $25,000 to be presented
to the probation department, the state was willing to
recommend a suspended sentence and probation, an
extremely generous offer, by the way, in light of the
amount that was alleged to have been taken in this case,
extremely generous. You have failed to avail yourself of
that offer. You knew fully well that the state would be
looking for incarceration. It would be an open plea.
There is absolutely no doubt in my mind that you knew
all of this was . . . going to happen today. Don’t tell
me that you were tops in your class, that you are the
creator of very successful companies, and that you don’t
know the slightest thing of what was going to happen
today. Don’t tell me that. . . . [T]hat offends my sense
of what’s right and wrong.
‘‘You, sir, have played games with the court. You have
twisted the truth. You have laid all of the blame upon
your elderly mother. You have placed the blame on
everyone else except yourself. That is the court’s opin-
ion. You have left your family without this money. You
have left Dr. Hodish without his money. You’ve sought
to delay this matter. You’ve delayed it and delayed it.
Pled guilty and delayed it again in the hopes that at
some point, somehow, you would avoid your responsi-
bility. That time has ended. And you’ve been given every
opportunity by this court, by other courts, by the prose-
cution, to avoid a prison sentence, every opportunity
under the sun.
‘‘I would note that this file has been pending now for
about two years, if I’m not mistaken. No one has pushed
you into anything. No one has forced you into this
agreement. You voluntarily gave up your rights.’’ The
court then sentenced the defendant.20
On February 14, 2011, the defendant, through coun-
sel, filed a petition for a writ of habeas corpus.21 On
April 11, 2013, the habeas court, Hon. George Levine,
judge trial referee, granted the petition and restored
the defendant’s right to appeal pursuant to a motion
for stipulated judgment. The defendant filed this appeal
in accordance with the writ of habeas corpus.
On appeal, the defendant claims that the court abused
its discretion by denying him the constitutional right
to counsel in that (1) the court granted Sherman’s
motion to withdraw as counsel, and (2) he did not (a)
clearly and unequivocally ask to represent himself, and
(b) knowingly and voluntarily waive his right to counsel.
We disagree.
I
The defendant claims that Judge Hudock improperly
granted Sherman’s motion to withdraw, which failed to
conform with Practice Book § 3-10,22 and that the court
failed to find good cause to grant the motion. We agree
with the defendant that Sherman’s motion to withdraw
did not conform with § 3-10, and that, before granting
the motion, the court should have found good cause
to grant it. We conclude, however, that if permitting
Sherman to withdraw was error, it was harmless.
The standard of review regarding a motion to with-
draw as counsel is abuse of discretion. ‘‘The standard
of reviewing both a motion by a defendant to discharge
counsel and a motion by counsel to withdraw is the
same. . . . It is within the trial court’s discretion to
determine whether a factual basis exists for appointing
new counsel and, absent a factual record revealing an
abuse of that discretion, the court’s refusal to appoint
new counsel is not improper. . . . Such a request must
be supported by a substantial reason and, [i]n order to
work a delay by a last minute discharge of counsel
there must exist exceptional circumstances.’’ (Internal
quotation marks omitted.) State v. William B., 76 Conn.
App. 730, 747, 822 A.2d 265, cert. denied, 264 Conn. 918,
828 A.2d 618 (2003).
‘‘In evaluating whether the trial court abused its dis-
cretion in denying [the] defendant’s motion for substitu-
tion of counsel, [an appellate court] should consider
the following factors: [t]he timeliness of the motion;23
adequacy of the court’s inquiry into the defendant’s
complaint; and whether the attorney/client conflict was
so great that it had resulted in total lack of communica-
tion preventing an adequate defense.’’ (Footnote added;
internal quotation marks omitted.) State v. Williams,
102 Conn. App. 168, 205, 926 A.2d 7, cert. denied, 284
Conn. 906, 931 A.2d 267 (2007).
In his appellate brief, the defendant identified every
way in which Sherman’s motion to withdraw failed to
comply with Practice Book § 3-10, but failed to explain
how he was harmed by the motion’s failure to comply
with the rule of practice. The purpose of the notice
provision of Practice Book § 3-10 (a) and (b) is to inform
the court, other attorneys of record, and the party repre-
sented by the attorney that he or she is seeking permis-
sion to withdraw. Section 3-10 also requires that
attorneys of record and the party represented by the
withdrawing counsel be informed of the date and time
of the hearing. The transcript of the October 29, 2009
hearing at which the court granted Sherman permission
to withdraw reveals that Vieux and the defendant were
present. Sherman’s failure to include the date and time
of the hearing, therefore, did not prejudice the
defendant.
After the court granted Sherman permission to with-
draw, the court informed the defendant that he was
no longer represented by counsel, that he immediately
should proceed to an attorney’s office and seek counsel.
The court also stated that the case was close to being
put on the one hour trial list. The court’s instructions
to the defendant remedied Sherman’s failure to inform
the defendant of the consequences of his withdrawal.
Sherman’s motion represented that ‘‘[t]here has been
a total breakdown of communication between counsel
and client, which has undermined counsel’s ability to
effectively represent the defendant.’’ During the hear-
ing, Sherman stated that the defendant was well aware
of the motion. The court made no explicit good cause
finding to permit Sherman to withdraw his appearance
beyond stating that ‘‘the relationship has broken down
. . . .’’ The defendant, however, did not object or other-
wise give the court reason to doubt Sherman’s represen-
tations. In fact, he stated, ‘‘that’s fine,’’ following
Sherman’s representation.
A trial court is entitled to rely on the representations
of counsel, who is an officer of the court. See State v.
Hall, 303 Conn. 527, 536, 35 A.3d 237 (2012). ‘‘[I]t has
long been the practice that a trial court may rely upon
certain representations made to it by attorneys, who
are officers of the court and bound to make truthful
statements of fact or law to the court.’’ (Internal quota-
tion marks omitted.) State v. Chambers, 296 Conn. 397,
419, 994 A.2d 1248 (2010); see also State v. Hall, supra,
536–37 (defendant’s failure to contest factual represen-
tations of his attorney demonstrated acquiescence in
attorney’s statements and supported trial court’s reli-
ance on them); State v. Baker, 141 Conn. App. 669, 673,
62 A.3d 595 (same), cert. denied, 308 Conn. 950, 67 A.3d
292 (2013). Moreover, the full record in this matter
discloses that the defendant was not reticent when he
wanted to address the court. ‘‘[I]t is well established
that [o]ur rules of procedure do not allow a [party] to
pursue one course of action at trial and later, on appeal,
argue that a path [the party] rejected should now be
open to him.’’ (Internal quotation marks omitted.) State
v. King, 149 Conn. App. 361, 375, 87 A.3d 1193, cert.
granted on other grounds, 312 Conn. 917, A.3d
(2014).
Our conclusion that the court neither abused its dis-
cretion nor deprived the defendant of his right to coun-
sel finds support in State v. Fernandez, 254 Conn. 637,
758 A.2d 842 (2000), cert. denied, 532 U.S. 913, 121
S. Ct. 1247, 149 L. Ed. 2d 153 (2001). Fernandez is
procedurally different in that defense counsel there
made an oral motion for permission to withdraw. Dur-
ing the hearing before the trial court in that case,
Espinosa, J., withdrawing counsel represented to the
court that the motion to withdraw was ‘‘mutually agreed
upon.’’ (Internal quotation marks omitted.) Id., 641.
Counsel also represented that the defendant could
retain new counsel in two weeks. The defendant in
Fernandez, like the defendant here, did not object.24 In
reviewing the claim that the defendant in Fernandez
was deprived of the counsel of his choice, our Supreme
Court reasoned: ‘‘By failing to raise the issue [at the
trial court level], where a factual basis could have then
been developed, [the] defendant rendered it impossible
for us to deal meaningfully with his eleventh hour con-
tention that he was wrongfully deprived of the counsel
of his choice.’’ (Internal quotation marks omitted.)
Id., 650.
Another similarity between Fernandez and this case
is that both defendants were given time to secure new
counsel. Our Supreme Court concluded that two weeks
was a reasonable period of time in which the defendant
in Fernandez could secure new counsel. Id. In this case,
Judge Hudock and Judge Dennis repeatedly continued
the case over a period of five months to enable the
defendant to retain new counsel.
The defendant further notes that Sherman’s motion
was deficient in that it did not state that, if it were
granted, he should ask the court to appoint new counsel,
obtain another lawyer or file an appearance. We again
conclude that the defendant was not harmed by Sher-
man’s omission, as the court instructed the defendant
to find another lawyer immediately because the case
was about to be placed on the ‘‘hot list’’ for trial. The
court monitored the defendant’s initial effort to retain
new counsel by continuing the case for one week. When
the defendant appeared before the court at that time,
he stated that the court ‘‘asked me to get an attorney’’
and that he had spoken to a lawyer who was in another
courtroom at the time. The defendant clearly was aware
of the need to retain new counsel and was not harmed
by the deficiency in Sherman’s motion.
At the conclusion of the proceeding on October 29,
2009, Judge Hudock stated that the case would ‘‘pro-
ceed to trial whether [the defendant] was represented
by counsel or not.’’ The defendant claims that those
words constituted a threat and demonstrated the court’s
disregard for his right to the assistance of counsel. We
disagree. Although the court’s warning may have been
stated bluntly, there is precedent for such admonitions.
See, e.g., State v. Flemming, 116 Conn. App. 469, 475,
976 A.2d 37 (2009) (‘‘If you don’t have a lawyer here to
represent you on that date, you’re going to represent
yourself. I’m going to find at that point that you waived
your right to have a lawyer represent you unless I hear
something different . . . .’’ [Internal quotation marks
omitted.]). Despite the defendant’s claim, the record
amply demonstrates that the court acutely was aware of
the defendant’s right to counsel, and repeatedly advised
him to retain new counsel and continued the matter to
enable him to do so. We cannot conclude that the court’s
realistic assessment of what would happen prejudiced
the defendant.
In conclusion, although we agree that Sherman’s
motion and the court’s granting of the motion did not
conform with Practice Book § 3-10, the defendant was
not harmed when the court granted Sherman permis-
sion to withdraw, as the court provided the defendant
all of the protections required by § 3-10. Moreover, both
Judge Hudock and Judge Dennis granted the defendant
continuances and multiple opportunities over five
months to retain substitute counsel before the case was
called for trial. Judge Dennis also referred the defendant
to the Office of the Public Defender.
II
The defendant also claims that the court violated his
constitutional right to counsel in the absence of his
voluntary and knowing waiver of that right. The defen-
dant argues that he never waived his right to counsel
and never sought by word or deed to represent himself.
We agree that the defendant never expressly asked to
represent himself. Judge Hudock found that, by refusing
to retain new counsel after Sherman withdrew, the
defendant sought to stall the judicial process. We agree
and, therefore, conclude that the defendant, by his con-
duct, waived his right to counsel and that the court did
not violate his constitutional right to counsel.
We begin with the applicable standard of review.
‘‘[T]he determination of whether there has been an intel-
ligent waiver of the right to counsel must depend, in
each case, upon the particular facts and circumstances
surrounding that case, including the background, expe-
rience, and conduct of the accused. . . . This
important decision rests within the discretion of the
trial judge.’’ (Internal quotation marks omitted.) State
v. Flemming, supra, 116 Conn. App. 477–78. ‘‘We review
[a] trial court’s determination with respect to whether
the defendant knowingly and voluntarily elected to pro-
ceed [as a self-represented party] for abuse of discre-
tion.’’ State v. D’Antonio, 274 Conn. 658, 709, 877 A.2d
696 (2005).
Our Supreme Court has identified ‘‘several well set-
tled principles regarding the constitutional right of an
accused to represent himself. The right to counsel and
the right to self-representation present mutually exclu-
sive alternatives. A criminal defendant has a constitu-
tionally protected interest in each, but since 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 defendant properly exercises his right
to self-representation by knowingly and intelligently
waiving his right to representation by counsel. . . .
When an accused manages his own defense, he relin-
quishes, as a purely factual matter, many of the tradi-
tional benefits associated with the right to counsel. For
this reason, in order to represent himself, the accused
must knowingly and intelligently [forgo] those relin-
quished benefits. . . . The state bears the burden of
demonstrating that the defendant knowingly and intelli-
gently waived his right to counsel.’’ (Citations omitted;
internal quotation marks omitted.) State v. T.R.D., 286
Conn. 191, 202–203, 942 A.2d 1000 (2008).25 The defen-
dant does not claim that he was not competent to waive
his right to counsel. We therefore focus on whether the
defendant voluntarily and knowingly waived the right
to counsel. See State v. Henderson, 307 Conn. 533, 547,
55 A.3d 291 (2012).
‘‘For a court to determine that a defendant has validly
waived his right to counsel, it must be satisfied that
such a waiver was made knowingly, voluntarily and
intelligently. In making such a determination, the court
is guided by Practice Book § 44-3, which provides in
relevant part: A waiver will be accepted only after the
judicial authority makes a thorough inquiry and is satis-
fied that the defendant: (1) [h]as been clearly advised
of the right to the assistance of counsel, including the
right to the assignment of counsel when so entitled; (2)
[p]ossesses the intelligence and capacity to appreciate
the consequences of the decision to represent oneself;
(3) [c]omprehends the nature of the charges and pro-
ceedings, the range of permissible punishments, and
any additional facts essential to a broad understanding
of the case; and (4) [h]as been made aware of the dan-
gers and disadvantages of self-representation. Our
Supreme Court has held, however, that a defendant
does not possess a constitutional right to a specifically
formulated canvass [with respect to this inquiry]. His
constitutional right is not violated as long as the court’s
canvass, whatever its form, is sufficient to establish
that the defendant’s waiver was voluntary and knowing.
. . . In other words, the court may accept a waiver of
the right to counsel without 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.) State v. Flemming, supra, 116 Conn.
App. 478–79.
Judge Hudock found that the defendant had intelli-
gently, voluntarily and knowingly waived the right to
counsel. The record contains facts that support the
court’s finding. At the time the court granted Sherman
permission to withdraw on October 29, 2009, it advised
the defendant to find new counsel. The next time the
defendant appeared in court, he stated that the court
had ‘‘asked [him] to get an attorney.’’ On November
30, 2009, the court advised the defendant that he was
charged with larceny in the first degree and larceny in
the second degree, and faced a maximum penalty of
twenty years in prison. The court stated to the defen-
dant that he needed an attorney. The court stated also
that ‘‘[i]t does no one any good to come into this . . .
representing themselves . . . [e]ven if you were a
lawyer.’’
When the defendant informed the court that he was
unable to retain counsel because he lacked accessible
funds, on February 25, 2009, Judge Dennis referred the
defendant to the Office of the Public Defender to apply
for assistance. The defendant failed to complete the
application. Moreover, the information that he provided
indicated that he had posted bond and that a business
account contained funds of at least $10,000, which made
him ineligible for a public defender.
On March 26, 2010, Judge Hudock identified at least
eleven continuances the court had granted the defen-
dant so he could retain counsel. The court thereafter
found that ‘‘for all intents and purposes,’’ the defendant
had waived his right to counsel, but appointed Popilow-
ski as standby counsel for the defendant. To help the
defendant understand the nature of the proceedings,
the court ordered the defendant to observe both a jury
and a court criminal trial.
The transcript of the March 26, 2010 proceeding dem-
onstrates that the defendant understood his right to
counsel and the importance of legal representation.
When he responded to the court’s invitation to engage
voluntarily in plea negotiations, the defendant stated:
‘‘It is wise to do that with counsel,’’ and then, ‘‘[n]o.’’
When he learned the terms of the proposed plea
agreement, however, the defendant changed his mind
and was willing to consider the offer. The court contin-
ued the matter until 2 p.m. at which time the defendant
stated: ‘‘I would like to move forward with the offer.
. . . And I did have a chance to talk to those who, I
would say, advise me.’’ Moreover, during the court’s
canvass of the defendant as to his guilty plea, the defen-
dant stated that he understood that he was giving up
the right to counsel, a trial to the court or a jury, the
right to continue to deny he committed the offenses,
the right to have the state prove its case beyond a
reasonable doubt, the right to remain silent, to confront
witnesses against him, to present witnesses on his own
behalf, and to present a defense. In giving up those
rights, the defendant affirmed that he wanted to do so.
He also stated that no one had threatened him to take
the plea offer and that his plea was voluntary. The
defendant stated as well that he was pleading guilty
because he was guilty. The court then found that the
defendant’s guilty plea was knowing, voluntary and
intelligent, and that he knowingly, voluntarily, and intel-
ligently waived his right to counsel.
This is not the first time this court has been presented
with a claim that the trial court violated a criminal
defendant’s constitutional right to counsel.26 State v.
Flemming, supra, 116 Conn. App. 469, recounts a proce-
dural history remarkably similar to the present one.27
Notably, the defendant in Flemming also failed to
object at trial and sought reversal of the judgment
revoking his probation pursuant to State v. Golding,
213 Conn. 233, 239–40, 567 A.2d 823 (1989). State v.
Flemming, supra, 477. Although the facts and proce-
dural history of Flemming are on point, there are cir-
cumstances unique to this case that provide further
evidence that the defendant accepted the plea
agreement voluntarily, namely, that the court twice
vacated the defendant’s guilty plea and the defendant
three times represented to the court that he wanted to
proceed with the plea agreement. Moreover, after the
court canvassed the defendant for a second time, the
defendant raised questions concerning who determined
that he should pay $25,000 in restitution prior to sen-
tencing, which is evidence that the defendant consid-
ered his guilty plea intelligently. At sentencing, the
defendant represented that he was a college graduate
and that he had been involved in several successful
businesses. The court found that the defendant was an
intelligent person and that he intelligently, knowingly,
and voluntarily waived his right to counsel. Pursuant to
our review of the record and considering the particular
circumstances of this case, we conclude that the court
did not abuse its discretion in finding that the defendant
knowingly, intelligently, and voluntarily waived his right
to counsel. Moreover, the court did not violate the
defendant’s right to counsel.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In a second file, the defendant was charged with larceny in the second
degree in violation of General Statutes (Rev. to 2007) § 53a-123 and issuing
a bad check in violation of General Statutes § 53a-128 (bad check case).
The complainant in the bad check case is a dentist. After the defendant was
sentenced in the larceny case, the state entered a nolle prosequi in the bad
2
Although the defendant claims that the court violated his rights to counsel
under both the federal and state constitutions, he concedes that his right
under our state constitution is coextensive with the federal constitution.
We therefore review his claim pursuant to the sixth amendment to the
United States constitution. See State v. Geisler, 222 Conn. 672, 684–86, 610
A.2d 1225 (1992).
3
The state contends that we should not review the defendant’s claim
because he waived his right to counsel by agreeing to the granting of the
motion to withdraw. The defendant recognizes that his claim is unpreserved
and seeks to prevail on appeal pursuant to State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989). We will review the defendant’s claim because
the record is adequate for our review and the claim is of constitutional
magnitude. See State v. T.R.D., 286 Conn. 191, 198 n.9, 942 A.2d 1000 (2008).
As explained herein, however, the defendant cannot prevail because a consti-
tutional violation does not clearly exist. See State v. Golding, supra, 239–40.
4
Sergeant David Collins of the Wilton Police Department signed an affida-
vit in support of an arrest warrant for the defendant. Collins attested in
part: ‘‘[O]n 11/26/2008, Ms. Pauline Gamer provided a written statement
which attested to the following; that in December of 2006, she along with
her daughter Nancy Gamer had opened a line of credit at the Washington
Mutual Bank . . . in Wilton . . . . That the total sum of the credit line was
$250,000. That Pauline Gamer has learned that her son, [the defendant] . . .
was drawing funds from the account in which he was not authorized.
‘‘That Nancy Gamer also provided a written statement which indicated
that [the defendant] was not authorized to make withdrawals from the
account. That Nancy Gamer also indicated that she believed that [the defen-
dant] removed the monthly statement from Pauline’s mailbox in an attempt
to conceal his activity from his mother. That [the defendant], Nancy and
Pauline all resided at the same residence . . . in Wilton. That the activity
came to light in April of 2008, as the bank contacted Nancy regarding
delinquent payments on the account. That a total of $227,863.24 was with-
drawn by [the defendant]. That Pauline Gamer continued to make payments
on the account in order to protect her son. That Nancy Gamer prompted
her mother Pauline to discontinue making payments and to report this
incident to law enforcement.
‘‘That on 12/4/2008, this affiant spoke with Walter Mann, an investigator
with Washington Mutual. That . . . Mann confirmed that [the defendant]
was not on the loan agreement and did not have authority to make withdraw-
als on the account. That Mann confirmed that [the defendant] had withdrawn
over $227,000 on the account. That Mann indicated that Pauline Gamer
continued to make installments on the account. That Mann also advised
that the bank manager at the time of these withdrawals was . . . terminated
as a result of this incident.’’
5
Following the luncheon recess, the defendant represented that he was
unable to obtain the necessary information. His reasons were many, e.g.,
he moved and his personal records might be in storage, he was unable to
reach his accountant, his bank does not provide certain statements and he
banks online. The court suggested that the defendant simply print out his
online bank statement.
6
The court ordered the defendant to remain ‘‘in court for this afternoon’s
court trial. You are to observe that trial this afternoon. If you are going to
be trying your case, the court sees that it is necessary that you observe a
trial. It is a court trial, but you at least will have the opportunity to observe
the conduct of the presentation of evidence. The court finds that that is
necessary in your situation. So, you are ordered to be back in court, in this
court, at 2 [p.m.]. And I will also indicate that you are to be here each day
next week at 10 [a.m.] for either observations of the court trial, or your
own trial, whichever is scheduled.’’
7
The court stated: ‘‘I am willing to do the following, and we would continue
the matter for sentencing, with a presentence report. So, I could put this
out for a lengthy period of time. My offer to you would be a suspended
sentence with probation, if in fact $25,000 had been paid to, and confirmed
to be paid, to the victim. If that is done, you would receive a suspended
sentence and probation with a condition of restitution for the remaining
amount.’’
8
Vieux stated that the not-to-exceed restitution sum was $234,933.24,
which represented the sum owed in the larceny case and the bad check case.
9
Vieux stated: ‘‘This was an warrant arrest, Your Honor, by the Wilton
Police Department. [November 26, 2008], a Ms. Pauline Gamer provided a
written statement, indicating that she had in December of 2006, along with
her daughter, opened a line of credit at the Washington Mutual Bank located
[on] Danbury Road in Wilton. The total line of credit was $250,000. She
subsequently learned that her son, the defendant . . . was drawing funds
from that account; he was not authorized to do so. When they did a full
accounting, Your Honor, and alike, and it was revealed that a total of
$227,863.24 was withdrawn by [the defendant] at the time. She did in fact
make payments, in order to protect her son, at one point, and then subse-
quently discontinued making payments.
‘‘And then, again, revealed through the investigation, Your Honor, that in
fact no documentation showing authorization and alike was provided. He
wasn’t allowed, withdraw the funds, no right or reason to do so, withheld
them from the complainant, Your Honor.’’
10
Before canvassing the defendant, the court stated: ‘‘All right, Mr. Gamer,
what happens now is that I am going to ask you a series of questions. If
you need any help, since you are not represented by counsel, but I will try
to answer your questions, understanding that I do not represent you, as
well.’’ The defendant responded, ‘‘Right.’’
11
The following colloquy transpired, in part, during the canvass:
‘‘The Court: And you are also giving up the following rights. You are giving
up the right to have a trial before a court or a jury; with the assistance of
your attorney. You are giving up the right to continue to deny that you
committed this offense and the right to force the state of Connecticut to
prove that you did. The state would have to prove your guilt in trial beyond
a reasonable doubt. Furthermore, you are giving up the rights to remain
silent, to confront witnesses, to present witnesses on your own behalf, to
testify and to present defenses. Do you understand that you are giving up
those rights?
‘‘The Defendant: Yes, sir.
‘‘The Court: That is what you wish to do?
‘‘The Defendant: Yes, sir. . . .
‘‘The Court: Has anyone made any threats or promises to you, that are
forcing you to reach this agreement and enter your plea?
‘‘The Defendant: No.
‘‘The Court: So, your agreement and your plea are voluntary, is that
correct?
‘‘The Defendant: Sure.
‘‘The Court: The state of Connecticut put on the record facts which led
to your arrest. Are those facts essentially correct?
‘‘The Defendant: Yes, sir.
‘‘The Court: So, you are pleading guilty because you are guilty?
‘‘The Defendant: Yes, sir.
‘‘The Court. Any questions about your plea?
‘‘The Defendant: I have a lot, but I don’t think this is the—no, I do not.
‘‘The Court: All right. So, you do not have any questions about your plea
of guilty at this point, or about the agreement?
‘‘The Defendant: Correct.’’ (Emphasis added.)
12
The court stated to the defendant: ‘‘you may wish to still accept the
[plea] agreement, at which point I will put you to plea again, and I will ask
you all of those questions again. The additional questions I will ask you
pertain to, principally, the elements of the offense of larceny in the first
degree and whether you understand them, and also whether you understand
what the maximum penalties are for larceny in the first degree. That’s the
only . . . change in this proceeding.’’
13
The following colloquy took place between the court and the defendant:
‘‘The Court: [T]he bottom line is this: it’s going to be restitution.
‘‘The Defendant: Right.
‘‘The Court: So that you understand before we go any further.
‘‘The Defendant: Okay.
‘‘The Court: It’ll be restitution not to exceed $234,933.24. That’s to include
both files.
‘‘The Defendant: Right.
‘‘The Court: As verified by the probation department. Which means that
if probation evaluates the entire restitution issue, including whatever experts
you can present, whatever documents you can present to the probation
department and whatever else results . . . in their conclusion that you owe
a certain figure, that’s what we mean by as verified by the probation
department.
‘‘The Defendant: Okay.
‘‘The Court: And I think that’s what you meant by probation doing an
accounting, is that correct?
‘‘The Defendant: True.
‘‘The Court: Because that doesn’t sound like my language. But what does
sound like my language is, as verified by the probation department.
‘‘The Defendant: Right.
‘‘The Court: So, you are perfectly free to present to the probation depart-
ment what you believe is an accurate figure. That does not mean, though,
that probation, when its entire investigation is finished, is going to say, oh
yeah, we agree with you. It’s an investigation that will include whatever
you present to them. They may, bottom line, may conclude that you owe
that amount.
‘‘The Defendant: Right.
‘‘The Court: But you’re pleading guilty to [larceny in the first degree].
Your maximum liability is $234,933.24 unless the probation department says
it’s lower. Do you understand that?
‘‘The Defendant: Sure, yeah.
‘‘The Court: And you’re willing to agree to that?
‘‘The Defendant: Yeah.
‘‘The Court: Just as long as we know what the agreement is? . . .
‘‘The Defendant: Okay. I’ve never seen anything. I don’t have any files. I
don’t know—other than, I’ve received some information on some checks.
And when I looked at the evidence, there are copies of copies in there, and
there’s been no verification; even two or three of those checks in there
were written out of her account to these third parties. There’s—as far as I
know, I have not seen any of the evidence against me. So, that’s the reason
why I’m asking for the probation department to take a look at [it] because
it would be unbiased. . . .
‘‘The Court: So, it may be that you wish to present, you may still differ
with the figure and you may wish to present to me evidence to the contrary.
That is your right to do in your sentencing statement. So, I will consider
that as well. But I will tell you right now that I will have to confer with the
prosecutor, who will make a statement on the record. I don’t confer with
the prosecutor, but they will make a statement on the record as to what
they feel your restitution should be. And I will have to discuss it with the
probation department. So, the probation department will be present.
‘‘The Defendant: Okay.
‘‘The Court: So, just understand that, again, I need input from everybody,
not just what you’re telling me or not just what the state’s telling me. I have
the big picture to look at.
‘‘The Defendant: Okay.
‘‘The Court: So, any other questions?
‘‘The Defendant: No, sir.’’
There was continued discussion of the amount of the restitution owed.
The court ultimately stated: ‘‘[I]n principle, that if, in fact, if, in fact, the
probation department after complete investigation determined that restitu-
tion in this figure was substantially wrong and that you fell below the
threshold for larceny in the first degree, I’d allow you to vacate your plea,
in principle. But I could see a lot of variations and a lot of variables in that.’’
14
The court explained to the defendant why it ordered him to observe a
criminal trial. ‘‘[I]f there is no agreement . . . I will order you to be in court
on Monday, and by the way, I did this only because you are unrepresented.
And the only way that you are going to learn about trials is to sit in and
watch the trials that will proceed on Monday and . . . there’s another trial
we have scheduled for Tuesday. And you’ll come in and you’ll watch every
one of these trials. And when they are done, we will proceed with your trial.
‘‘So, I mean, I’m telling you why I did what I did in light of the fact that
you are unrepresented. And if you are still not in agreement with this plea
disposition, then I will appoint counsel to, as we did before; counsel will
sit by your side during your trial as in assistance, but not as your lawyer,
all right. So, the $25,000, as I understood it, was a figure worked out between
you and prosecutor Vieux. And that’s why I accepted the plea in the first
place.’’
15
The court recounted the procedural history of the case. ‘‘You may not
recall, sir, but I do. So, don’t accuse the court of speeding things up. You
have suddenly indicated that you had no prior knowledge of this $25,000
figure before I just threw it out to you when you plead[ed] guilty to this
charge. At that point, when you make a statement like that, I cannot find
your plea to be a knowing, voluntary, and intelligent plea. So, don’t start
pulling this game, sir, that I’m speeding things up.
‘‘You, sir, indicated that your plea wasn’t knowing, it wasn’t voluntary, it
wasn’t intelligent. At that point, either you work out some kind of disposition
or it goes on trial. It’s the . . . one of the oldest cases on our jury list.
Don’t start accusing me of speeding things up when this matter has been
pending since, I believe, 2008. Don’t start accusing me of speeding it up
when it’s the oldest matter on the jury docket. I have given you continuance
after continuance to get yourself a lawyer. . . .
‘‘You’ve indicated that you are in the process of retaining a forensic
accountant. You’ve indicated that you have a legal adviser, but you have
refused, in the court’s opinion, you have refused to hire an attorney all of
this time. Do not accuse me of speeding this up. This is your right to have
a speedy trial. I don’t want to hear that again, sir, because it tells me that
you may be playing games, and I’m not going to play games. I’m giving you
your right to a trial.
‘‘I have indicated, because of your insistence on not hiring a lawyer, that
you must sit in court and watch other cases being tried. That is for your
benefit because of your insistence on not hiring an attorney. Two days ago,
you inferred that I was ordering you to come into court. Sir, it is for your
own benefit because you are not an attorney. And I’m not going to have
you come back on a habeas, if you’re convicted, sitting in prison, and saying
somehow or other this was all ineffective assistance because you couldn’t
get a public defender. You couldn’t hire a lawyer. You were forced to go
to trial. You didn’t know the first thing about trial. I’m giving you the
opportunity to start to find out what trials are all about.
‘‘But again, as I’ve said before, it’s apparent to me—it’s become more
apparent to me as time has gone on, that you are perfectly capable of hiring
an attorney, and you simply refuse to hire an attorney. If that’s the case,
you’re going to sit here in the courtroom and you’re going to watch other
cases being tried, and we aren’t speeding this up. This case should have
been tried a long time ago.’’
16
The victims who were present and made a statement were Michael
Hodish, a dentist and childhood friend of the defendant, and Nancy Gamer
and Ellen Gamer Wink, the defendant’s sisters. Pauline Gamer, the defen-
dant’s seventy-seven year old mother, was not present.
17
The defendant stated, in part: ‘‘I said [to my mother] we’ve got this project
working along. I need to send money for engineering work to Efficient. And
so checks were cut and sent directly to the engineering firm. Never did I
walk into a bank and instruct somebody to do something that wasn’t first
verified by my mom. And I don’t know why my mom is saying that she
didn’t approve this, when in fact she approved this with me because we
had worked on projects time and time again behind my sisters because she
didn’t want them to be involved. She said, you do it. I’ll keep your sisters
informed. Just get the work done.’’
18
The defendant stated with regard to his mother: ‘‘She had so alienated
the people that were renting her nursing home with multiple lawsuits that
they didn’t want to—they didn’t want to participate at all in anything that
she wanted to do. It was my responsibility to go in there and solve these
major issues with my attorney, Peter Finn, from Rubin & Rugman and James
Heller, an accountant in Boston. Neither of these people knew my mom,
and my mom did not have anything to do with making sure they stayed on
the case.’’
19
The defendant stated that he was successful in helping his mother deal
with issues concerning the nursing home. ‘‘That threw off $1.8 million to
my mom. Okay. . . . [T]hat’s a considerable amount of money when you
think about the fact that they’re saying that they suffered incredible hardship
from a $200,000 amount of money that my mom gave me because she . . .
accidentally left me out of the compensation from the sale of the group
home, which was 900 was needed for all these other parties, plus $200,000
that was basically in—she said I need 900. Whatever you can get over that
is yours. I had been paid nothing, all right, and I spent hours and hours
over there.’’
20
The court sentenced the defendant as follows: ‘‘Based upon your failure
to make that initial restitution in the amount of $25,000, I have no choice
but to sentence you in accordance with your agreement to enter an open
plea. It is the sentence of this court that you be committed to the custody
of the Commissioner of Correction for a period of ten years. Execution of
that sentence is suspended after three years to serve. You are then to be
placed on a period of probation for five years. Condition of that probation will
be restitution . . . not to exceed $234,933.24. That restitution, of course, is
to be verified by the probation department. In addition, you are not to have
any contact with the complainants. You are not to enter the property of the
complainants during the period of probation.’’
The clerk provided the defendant with certain papers. Krusinski stated
that the state was going to enter a nolle prosequi on the bad check charges.
21
In his petition for a writ of habeas corpus, the petitioner alleged that
he was denied the assistance of counsel with respect to the charge of larceny
in the first degree. He sought to have his guilty plea and sentence vacated,
and the matter restored to the criminal docket.
22
Practice Book § 3-10 provides in relevant part: ‘‘(a) No motion for with-
drawal of appearance shall be granted unless good cause is shown and until
the judicial authority is satisfied that reasonable notice has been given to
other attorneys of record and that the party represented by the attorney
was served with the motion and the notice required by this section or that
the attorney has made reasonable efforts to serve such party. . . .
‘‘(b) . . . a motion to withdraw shall include the last known address of
any party as to whom the attorney seeks to withdraw his or her appearance
and shall have attached to it a notice to such party advising of the following:
(1) the attorney is filing a motion which seeks the court’s permission to no
longer represent the party in the case; (2) the date and time the motion will
be heard; (3) the party may appear in court on that date and address the
court concerning the motion . . . .
‘‘(c) In criminal . . . matters, the motion to withdraw shall comply with
subsections (b) (1), (2) and (3) of this section and the client shall also be
advised by the attorney that if the motion to withdraw is granted the client
should request court appointed counsel, obtain another attorney or file an
appearance on his or her own behalf with the court and be further advised
that if none is done, there may be no further notice of proceeding and the
court may act.
‘‘(d) In addition to the above, each motion to withdraw appearance and
each notice to the party . . . the subject of the motion shall state whether
the case has been assigned for pretrial or trial and, if so, the date so
assigned. . . .’’
23
Sherman filed his motion to withdraw on September 24, 2009, but the
court did not hear it until October 29, 2009. Although the case was on the
trial list, it had not been set down for a date certain for trial. We do not
conclude that the motion to withdraw was untimely. Compare State v.
Patavino, 51 Conn. App. 604, 609, 724 A.2d 514 (no right to withdraw on
eve of or during trial), cert. denied, 249 Conn. 919, 733 A.2d 236 (1999).
24
The defendant in Fernandez also did not preserve his claim for appeal
and sought to prevail under State v. Golding, 213 Conn. 233, 239–40, 567
A.2d 823 (1989). State v. Fernandez, supra, 254 Conn. 648.
25
The defendant relies on T.R.D. to support his claim that he did not
voluntarily and knowingly waive his right to counsel. That case is distinguish-
able from the facts here. The trial court in T.R.D. did not inform that
defendant of punishment he faced if convicted. See State v. T.R.D., supra,
286 Conn. 201–202. Here, Judge Hudock informed the defendant that he
faced twenty years in prison and a $15,000 fine.
26
See State v. Harman, 198 Conn. 124, 130, 502 A.2d 381 (1985) (defen-
dant’s obstreperous behavior materially contributed to delay in appointment
of new counsel); see also State v. Wolff, 237 Conn. 633, 657, 659, 678 A.2d
1369 (1996) (defendant comprehended nature of charges and facts, and
court informed defendant of right to assistance of counsel).
27
In Flemming, the defendant was arrested on a charge of violation of
probation. When he appeared for the violation of probation hearing, the
court, Alander, J., asked the defendant if he desired the assistance of counsel
and whether he had applied for a public defender’s assistance. State v.
Flemming, supra, 116 Conn. App. 472–73. The defendant told the court that
he wanted private counsel but had not been able to obtain funds to do so
and that he did not want a public defender to represent him. Id. Judge
Alander noted that the case had been continued for eight months and stated
that perhaps the defendant had not tried his best to retain counsel because
he was out on bond. Id., 473. The court recessed to permit the defendant
to apply for a public defender. Id. When he learned that the defendant
refused to apply for a public defender, Judge Alander reviewed for the
defendant his right to counsel, including appointed counsel if he were indi-
gent, the dangers of proceeding without counsel, the nature of the proceed-
ings, the charges against him and the potential punishment. Id., 474. The
defendant insisted that he would hire an attorney. Id., 474–75. The court
continued the matter once more and admonished the defendant that if he
did not have a lawyer to represent him on the next court date, he would
have to represent himself, as the court would find that he had waived his
right to counsel. Id., 475.
One month later, the defendant appeared without counsel. Id. He told the
court that he had not been able to raise the money he needed to retain
counsel. Judge Alander asked the defendant if he planned to represent
himself; the defendant stated: ‘‘I plan to.’’ Id. The court recessed to permit
the defendant to complete an application for a public defender. When court
reconvened, a public defender informed the court that the defendant had
not completely filled out the application. Id. Moreover, because he had
posted a $200,000 bond, he was ineligible for a public defender. Id.
Judge Alander addressed the defendant as follows: ‘‘[S]ince you’re not
eligible for a public defender and you haven’t obtained private counsel, at
this point you will need to represent yourself. I find that your failure to
obtain private counsel means that you effectively waived your right to the
assistance of counsel. You have been given months and months and months
to obtain private counsel, and unfortunately you have not done so. And I’m
not in a position at this point to continue this matter any further.’’ (Internal
quotation marks omitted.) Id., 476. Judge Alander explained the procedures
he would follow at the hearing, the charges against the defendant, and his
right to the presentation of the case. Id. After Judge Alander found that the
defendant had violated his probation and sentenced him, the defendant
appealed. Id. On appeal, he claimed that the court improperly found that
he effectively had waived his right to the assistance of counsel, as he had
not clearly and unequivocally expressed a desire to represent himself. Id.,
477. This court disagreed, concluding that the defendant, ‘‘by means of his
actions, voluntarily and knowingly waived his right to counsel.’’ Id., 480.