Newland v. Commissioner of Correction

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GENE NEWLAND v. COMMISSIONER
OF CORRECTION
(SC 19381)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Robinson, Js.
Argued October 7, 2015—officially released August 30, 2016
Michael J. Proto, assistant state’s attorney, with
whom, on the brief, was Patricia M. Froehlich, state’s
attorney, for the appellant (respondent).
Stephen Lebedevitch, with whom were James J.
Ruane and, on the brief, Grayson Colt Holmes and
Stephanie M. O’Neil, for the appellee (petitioner).
Opinion
ZARELLA, J. This certified appeal involves two
related claims raised by the petitioner, Gene Newland,
for the first time during postconviction proceedings,
namely, whether the trial court conducted an inade-
quate canvass prior to finding that he waived his right
to counsel under the sixth and fourteenth amendments
to the United States constitution and article first, § 8,
of the Connecticut constitution, and whether the trial
court erroneously concluded that the waiver was know-
ing, intelligent and voluntary. The respondent, the Com-
missioner of Correction, appeals from the judgment of
the Appellate Court, which affirmed the judgment of
the habeas court granting the petitioner a new trial on
the ground that the Division of Public Defender Services
(public defender’s office) had erroneously determined
that he was ineligible for the assistance of counsel. The
respondent contends that the Appellate Court incor-
rectly concluded that the petitioner had raised a claim
of public defender error in the habeas court and that
the claim was not procedurally defaulted because the
cause and prejudice necessary to excuse procedural
default is presumed when the right to counsel has been
violated. We agree with the respondent that the peti-
tioner did not advance a claim of public defender error
in the habeas court but, rather, claimed that the trial
court had conducted an inadequate canvass and errone-
ously concluded that he knowingly, intelligently and
voluntarily waived his right to counsel. We thus reverse
the judgment of the Appellate Court and direct that
court to remand the case to the habeas court to address
these claims. We decline to consider whether the cause
and prejudice necessary to excuse procedural default
may be presumed in the context of the petitioner’s
claims of trial court error because the habeas court and
the Appellate Court did not conclude that default was
excused with respect to those claims, and, accordingly,
the issue is not properly before this court.
I
FACTS AND PROCEDURAL HISTORY
The record reveals the following undisputed facts and
procedural history. In 2007, the petitioner was charged
with one count of sexual assault in the first degree in
violation of General Statutes § 53a-70 (a) (2) and one
count of risk of injury to a child in violation of General
Statutes (Rev. to 2003) § 53-21 (a) (2) in connection with
an incident that occurred in 2003. At his arraignment in
the judicial district of Windham in May, 2007, Assistant
Public Defender Ernest Green, Jr., appeared on behalf
of the petitioner for bond purposes only. The petitioner
subsequently posted $1000 on a $10,000 bond with the
partial help of a loan from a friend and was released
from custody. At the next pretrial hearing in June, 2007,
the petitioner appeared without counsel. The assistant
state’s attorney (prosecutor) informed the court that
the petitioner had applied for a public defender but
had been deemed ineligible. In accordance with the
recommendation of the public defender’s office, as rep-
resented by the prosecutor, the trial court continued
the case for six weeks to allow the petitioner to retain
private counsel.
Between July, 2007, and December, 2008, the peti-
tioner appeared as a self-represented party for at least
twelve pretrial scheduling hearings. At more than one
of these hearings, the petitioner informed the court that
the public defender’s office had deemed him ineligible
for appointed counsel due to his ownership of property,
the house that his ‘‘family’’ was living in,1 but that he
nonetheless was having difficulty securing an attorney
because he could not afford to hire one. At one hearing,
the petitioner indicated that he was in the process of
trying to refinance his property to obtain the funds. The
petitioner’s case was repeatedly continued to allow him
more time to secure counsel. No representative from
the public defender’s office ever appeared in court to
address the denial of services.
At a hearing in October, 2008, the petitioner indicated
that his situation had worsened because he had lost
one of his jobs due to a lack of transportation and
because his house was in foreclosure. He asked the
court if someone could assist him in preparing his case.
In response, the court stated: ‘‘I can’t tell somebody to
do that for you. You either qualify for the public
defender services or you don’t, and that’s a determina-
tion made by them independent[ly] of the court.’’ The
court suggested that the petitioner reapply for a public
defender if his financial situation worsened since he
first applied.
At a December, 2008 hearing, the trial court informed
the petitioner that it was scheduling the petitioner’s
case for a jury trial due to the fact that nearly two years
had elapsed since his arrest. The court agreed not to
put the case on the jury list until at least March, 2009,
in order to allow the petitioner more time to retain
counsel. The court warned the petitioner that trial
would proceed regardless of whether he secured coun-
sel at that time.
In April, 2009, the petitioner appeared as a self-repre-
sented party to commence jury selection. At the outset,
the court stated that it assumed that the petitioner had
had plenty of time by this point to retain counsel. In
response, the petitioner indicated that his efforts had
been unsuccessful because he could not afford the mini-
mum payment that counsel demanded, he was facing
foreclosure on his property, and he had twice been
deemed ineligible for public defender services. He indi-
cated that he had just learned that he might be able to
‘‘put some kind of attachment to the property for a
lawyer, so it’s [going to] hopefully aid me in getting
counsel because I [did not have] any idea that I could
do that before . . . .’’ The following exchange then
ensued:
‘‘The Court: But you have been advised over the past
two years on different occasions . . . of your right to
have an attorney represent you?
‘‘[The Petitioner]: Yes, I have.
‘‘The Court: Okay. And implicit in that right is the
right to a public defender if you couldn’t afford private
counsel, but you say you’ve tried twice, and you’ve been
deemed not to be qualified.
‘‘[The Petitioner]: Due to the fact I own property. As
soon as you . . . state that you own property or have a
mortgage on property, you’re automatically disqualified
for a public defender, they told me. So, because I have
property in my name, I’m not qualified for a public
defender.
‘‘The Court: So implicit in what you’re telling me is
you’re waiving your right to have counsel represent you.
‘‘[The Petitioner]: At present, yes. Unfortunately, I
have no other choice.
‘‘The Court: All right. I’m going to ask you some
questions to ensure that you know exactly what you’re
getting into.’’
In addition to addressing the petitioner with regard
to matters required for a proper waiver of counsel under
Practice Book § 44-3, the court inquired about the peti-
tioner’s circumstances. The petitioner informed the
court that he was thirty-seven years old and had a tenth
grade education. He also explained that he had limited
income and no family members with means to assist
him. He indicated that he was not familiar with the
rules of criminal procedure but that he had been given
the Code of Evidence and some basic advice by Assis-
tant Public Defender Green, and hoped to become famil-
iar with these rules and procedures before trial. In
response to the question of whether he felt that he had
the training, experience and skill to represent himself,
he stated: ‘‘Honestly, no, I don’t feel I possess that
training. . . . But I’m at the point where I have no other
choice.’’ When the court asked the petitioner whether
he thought he had been given a reasonable time in
which to seek private counsel, he responded: ‘‘Yes, I
have. I’ve done what I can with my means, unfortu-
nately.’’ An exchange then ensued about the petitioner’s
efforts to obtain counsel. The court noted that it had
never had a defendant represent himself with charges
as serious as those facing the petitioner but explained
that justice demands that at some point the state have
the right to try its case. At the conclusion of its canvass,
the court stated: ‘‘I’m going to make a finding under
the circumstances that the [petitioner] has waived his
right to be represented by counsel. I’m disappointed
that the court is asked to make this finding, but I don’t
see any alternative.’’ The trial court made no express
finding regarding whether the petitioner had the finan-
cial means to hire counsel or whether he had intention-
ally engaged in dilatory conduct. See, e.g., United States
v. Bauer, 956 F.2d 693, 695 (7th Cir.) (‘‘the combination
of ability to pay for counsel plus refusal to do so does
waive the right to counsel’’ [emphasis in original]), cert.
denied, 506 U.S. 882, 113 S. Ct. 234, 121 L. Ed. 2d 169
(1992); see also Fischetti v. Johnson, 384 F.3d 140, 145
(3d Cir. 2004) (‘‘[a] defendant’s right to counsel is not
without limit and cannot be the justification for inordi-
nate delay or manipulation of the appointment sys-
tem’’); United States v. Mitchell, 777 F.2d 248, 256 (5th
Cir. 1985) (‘‘The right to choose counsel may not be
subverted to obstruct the orderly procedure in the
courts or to interfere with the fair administration of
justice. It is a right and a proper tool of the defendant;
it cannot be used merely as a manipulative monkey
wrench.’’ [Internal quotation marks omitted.]), cert.
denied sub nom. Prado v. United States, 475 U.S. 1096,
106 S. Ct. 1493, 89 L. Ed. 2d 895 (1986), and cert. denied,
476 U.S. 1184, 106 S. Ct. 2921, 91 L. Ed. 2d 549 (1986).
The court did not appoint standby counsel.
Following a jury trial, the defendant was found guilty
of both the sexual assault and risk of injury counts.
The trial court rendered judgment in accordance with
the verdict and imposed a total effective sentence of ten
years imprisonment followed by eight years of special
parole, with conditions including registration as a sex-
ual offender. The petitioner did not appeal from the
judgment of conviction.
Thereafter, the petitioner, as a self-represented party,
filed a petition for a writ of habeas corpus, alleging that
he had wrongfully been denied counsel. The petitioner
was referred to the public defender’s office, which
determined that the petitioner was indigent. Counsel
filed an amended two count petition, claiming that the
trial court had (1) inadequately canvassed the petitioner
prior to finding that he had waived his right to counsel,
and (2) incorrectly concluded that the petitioner know-
ingly, intelligently and voluntarily waived his right to
counsel. The amended petition alleged, inter alia, that
the claims were not procedurally defaulted because
cause and prejudice is presumed when a petitioner’s
right to counsel has been violated.
The respondent thereafter filed a return asserting an
affirmative defense of procedural default as to both
counts, citing the petitioner’s failure to raise these
claims before the trial court and his failure to appeal
from the judgment of conviction. The respondent then
filed a motion for summary judgment on the basis of
that defense, claiming that no presumption of cause
and prejudice applies to claims of an inadequate waiver
canvass. The habeas court denied the motion without
prejudice.
During the evidentiary hearing on the petition, the
petitioner introduced the transcripts of the criminal
proceedings without objection. When the petitioner
sought to introduce evidence regarding his bank
account balances between June, 2007, and April, 2009,
his efforts to obtain counsel, and the procedures for
determining eligibility for public defender services, the
respondent objected. The respondent claimed that this
evidence was irrelevant because the petitioner had not
advanced a challenge to the determination of the public
defender’s office that he was not indigent. The peti-
tioner replied that the evidence was relevant to the
claims that he had raised in his petition. The habeas
court overruled the objection without prejudice to being
renewed in the posttrial briefs. Thereafter, the peti-
tioner testified that he had a minimal or negative bank
account balance during this period, which he supported
with bank account statements, and that he was working
a low wage job in April, 2009. He testified that he had
made numerous, unsuccessful efforts to obtain private
counsel after he had been denied a public defender,
and that no one had informed him that he had the right
to appeal from the eligibility decisions of the public
defender’s office. The petitioner acknowledged that he
had approximately $50,000 in equity in his property,
based on the property’s appraised value when he refi-
nanced it in January, 2007, and the outstanding mort-
gage on the property.2 He offered evidence to establish
that an action to foreclose the mortgage had been com-
menced in July, 2008.
The petitioner also proffered testimony from Ramon
J. Canning, the Public Defender for the judicial district
of Windham, where the petitioner filed his applications,
and Brian S. Carlow, the Deputy Chief Public Defender
in the Office of the Chief Public Defender. Neither had
any knowledge of the petitioner’s applications, which
had been destroyed, and, therefore, they only offered
testimony regarding application procedures and eligi-
bility criteria generally. Although there was no dispute
that, at the time of the waiver canvass in April, 2009,
the petitioner would have met the income eligibility
guidelines for public defender services on the basis
of the income he reported to the trial court and the
seriousness of the charges, there were some inconsis-
tencies in Canning’s and Carlow’s testimony. Canning
testified that equity in property could be a disqualifying
factor, which would not be affected by a pending fore-
closure because a property owner might still have con-
siderable equity despite the pending foreclosure. By
contrast, Carlow assumed that the equity in a property
would not be readily accessible if the property was in
foreclosure, barring unusual circumstances, and, there-
fore, property subject to foreclosure generally would
not be a factor in assessing eligibility. Carlow further
testified that, in the late 2000s, property ownership
would not have been given significant weight in disquali-
fying an income eligible applicant because he assumed
that relatively few people would have been able to easily
access any equity due to the state of the economy at
that time. In addition, Carlow testified that the eligibility
decision of the public defender’s office is only a recom-
mendation, with the trial court having ultimate author-
ity to decide whether a defendant is eligible, whereas
Canning indicated that the eligibility decision is final
unless challenged.
The habeas court thereafter granted the petition, con-
cluding that the petitioner’s sixth amendment right to
counsel had been violated. In support of its decision,
the habeas court made the following findings. At the
time of his trial, the petitioner was making between
$300 and $350 per week. He had no available funds in
any bank accounts. He owned a residential property
that was subject to a mortgage in the amount of approxi-
mately $117,000 and that had a fair market value of
$168,000 prior to his 2007 arrest. As of July, 2008, and
during the petitioner’s criminal trial, the petitioner’s
property was subject to a foreclosure action based on
his default on the mortgage. The petitioner had easily
met the income eligibility requirements set by the Public
Defender Services Commission for a serious felony
charge and, therefore, was presumed to be eligible for
services. The public defender’s office erred in denying
the petitioner’s application on the basis of his property
ownership because the equity was limited and not
readily accessible, and because the property was sub-
ject to an ongoing foreclosure action.
With respect to the respondent’s affirmative defense,
the habeas court concluded that a claim of public
defender error was not procedurally defaulted. It relied
on Dennis v. Commissioner of Correction, 134 Conn.
App. 520, 532, 536, 39 A.3d 799 (2012), for the proposi-
tion that a denial of counsel establishes the cause and
prejudice necessary to excuse default. The habeas court
further reasoned that, because neither the public
defender’s office nor the trial court had informed the
petitioner that he had a right to appeal from the denial
of his applications for public defender services,3 and
because the petitioner had explained his financial situa-
tion to the trial court, he was not defaulted for failure
to appeal from the denial of his applications to the
trial court.
With respect to the merits of the petitioner’s claim,
the habeas court determined that ‘‘the correctness of
the public defender’s indigency determination goes
directly to the petitioner’s claim that he did not know-
ingly, intelligently and voluntarily waive his right to
counsel and, thus, is properly before the court.’’ Ulti-
mately, the court concluded: ‘‘[T]he petitioner did not
knowingly, intelligently and voluntarily waive his right
to counsel because he mistakenly believed that he did
not qualify for the public defender’s services and only
acquiesced to representing himself because he could
not afford or otherwise retain private counsel. Had the
petitioner been properly informed of his right to the
services of a public defender, he would have accepted
those services. Thus, but for the public defender’s erro-
neous eligibility determination, the petitioner would not
have implicitly or otherwise waived his right to counsel,
and the trial court would not have accepted the implicit
waiver had it known of the petitioner’s eligibility.’’
(Internal quotation marks omitted.) The habeas court
rendered judgment granting the habeas petition,
vacated the petitioner’s conviction, and ordered that
he be granted a new trial.
The respondent appealed from the judgment of the
habeas court to the Appellate Court. On appeal, the
respondent claimed that (1) the habeas court improp-
erly denied his motion for summary judgment because
the cause and prejudice necessary to overcome proce-
dural default is not presumed in a claim that the trial
court’s canvass and determination of waiver were
improper, (2) the habeas court improperly granted the
petition on the basis of a claim that had not been raised
in the petition, and (3) even if properly considered, the
petitioner had not met his burden of proving that he
had been deprived of counsel due to an error by the
public defender’s office. See Newland v. Commissioner
of Correction, 151 Conn. App. 134, 146 and n.1, 150,
152, 94 A.3d 676 (2014). The Appellate Court affirmed
the judgment of the habeas court; id., 153; relying on
reasoning largely consistent with that of the habeas
court. See id., 146–53. The Appellate Court summarily
rejected the respondent’s contention that the petition-
er’s claim was procedurally defaulted by virtue of the
petitioner’s failure to appeal from the judgment of con-
viction, reasoning: ‘‘[B]ecause our resolution of the
respondent’s claim of procedural default is based upon
the petitioner’s claim of a violation of his right to coun-
sel and whether cause and prejudice are presumed in
the presence of such a violation, the procedural mecha-
nism by which the petitioner perhaps should have raised
his claims is immaterial.’’ Id., 146–47 n.1.
We thereafter granted the respondent’s petition for
certification to appeal, limited to two issues: First,
‘‘[d]id the Appellate Court properly affirm the habeas
court’s determination that ‘cause and prejudice’ [are]
presumed in a claim of trial court error?’’4 Newland v.
Commissioner of Correction, 314 Conn. 916, 917, 100
A.3d 406 (2014). Second, ‘‘[d]id the Appellate Court
properly affirm the habeas court’s determination that
a claim of public defender error was properly before
the habeas court, and, if so, did the Appellate Court
properly determine that the habeas court correctly
determined that the petitioner had met his burden of
proof?’’ Id.
In resolving the respondent’s claims, we are mindful
that ‘‘[t]he underlying historical facts found by the
habeas court may not be disturbed unless the findings
were clearly erroneous. . . . Historical facts constitute
a recital of external events and the credibility of their
narrators. . . . Questions of law and mixed questions
of law and fact [however, are subject to] plenary
review.’’ (Internal quotation marks omitted.) Crawford
v. Commissioner of Correction, 294 Conn. 165, 174, 982
A.2d 620 (2009). Except as otherwise noted, the issues
in the present case are subject to plenary review.
II
NATURE OF THE PETITIONER’S HABEAS CLAIMS
Ordinarily, our first task would be to consider
whether the habeas court properly concluded that pro-
cedural default did not serve to bar the petitioner’s
claims. In the present case, however, the habeas court
determined that there was no procedural default only
after concluding that the petitioner had alleged public
defender error. We thus begin with the respondent’s
contention that the petitioner did not advance a claim
of public defender error. We conclude, following a close
examination of the record, that the petitioner did not
claim public defender error.5 Accordingly, the Appellate
Court improperly upheld the habeas court’s determina-
tion that a claim of public defender error was not proce-
durally defaulted.
‘‘It is well settled that [t]he petition for a writ of
habeas corpus is essentially a pleading and, as such, it
should conform generally to a complaint in a civil
action. . . . It is fundamental in our law that the right
of a plaintiff to recover is limited to the allegations of
his complaint. . . . While the habeas court has consid-
erable discretion to frame a remedy that is commensu-
rate with the scope of the established constitutional
violations . . . it does not have the discretion to look
beyond the pleadings and trial evidence to decide claims
not raised. . . . The purpose of the [petition] is to put
the [respondent] on notice of the claims made, to limit
the issues to be decided, and to prevent surprise. . . .
[T]he [petition] must be read in its entirety in such a
way as to give effect to the pleading with reference to
the general theory upon which it proceeded, and do
substantial justice between the parties.’’ (Citation omit-
ted; internal quotation marks omitted.) Lebron v. Com-
missioner of Correction, 274 Conn. 507, 519–20, 876
A.2d 1178 (2005), overruled in part on other grounds
by State v. Elson, 311 Conn. 726, 91 A.3d 862 (2014). In
the present case, the habeas pleadings, the petitioner’s
filings in the habeas court, the respondent’s procedural
default defense and the parties’ arguments at the eviden-
tiary hearing all support the conclusion that the peti-
tioner alleged error by the trial court and not by the
public defender’s office.
The petitioner’s two count amended habeas petition
alleged that (1) ‘‘[t]he trial court conducted an inade-
quate canvass of [the] petitioner prior to finding that
[the] petitioner had waived his right to counsel,’’ and
(2) ‘‘[t]he trial court erroneously concluded that [the]
petitioner had knowingly and intelligently waived his
right to counsel.’’ The amended petition also alleged
that these errors occurred after the petitioner was twice
denied access to the services of a public defender and
before he was able to find private counsel. The plead-
ings contained no allegation that the decision of the
public defender’s office was incorrect or that the peti-
tioner was indigent under General Statutes § 51-297,
and the petitioner never attempted to amend his petition
to include such allegations. See Practice Book § 23-32
(‘‘The [habeas] petitioner may amend the petition at
any time prior to the filing of the return. Following the
return, any pleading may be amended with leave of the
judicial authority for good cause shown.’’); see also
Practice Book § 10-62 (‘‘[i]n all cases of any material
variance between allegation and proof, an amendment
may be permitted at any stage of the trial’’). Further-
more, because the petitioner did not allege public
defender error, the respondent’s return alleged proce-
dural default based on the petitioner’s failure to appeal
the trial court’s canvass and waiver determination to
the Appellate Court, and not because he failed to appeal
to the trial court from the eligibility determinations of
the public defender’s office under § 51-297 (g).
Thereafter, the petitioner claimed in his pretrial brief
to the habeas court that the canvass was inadequate
and that ‘‘the [trial] court erroneously concluded that
[he] had waived his right to counsel.’’ In support of
these claims, the petitioner specifically contended, inter
alia, that the trial court had failed to obtain sufficient
information on the record to determine that he know-
ingly, intelligently and voluntarily waived his right to
counsel and that the court’s determination of waiver
was unreasonable in the absence of a clear and unequiv-
ocal request by the petitioner to represent himself.
Similarly, at the evidentiary hearing, the petitioner’s
counsel not only reiterated the petitioner’s claims of
trial court error but repeatedly denied that the peti-
tioner was advancing a claim that the public defender’s
office had made an improper indigency determination
leading to the denial of his application for trial counsel.
When counsel for the respondent objected on relevancy
grounds to the petitioner’s testimony regarding his
financial position at the time he first applied for the
assistance of a public defender, the petitioner’s counsel
explained: ‘‘There are two counts in the petition. The
first, as opposing counsel has stated, is an inadequate
canvass. The second count, however, is that the court
erroneously concluded that the petitioner waived his
right [to counsel] knowingly and voluntarily. This evi-
dence we’re using to show that the petitioner did not
waive his right to counsel, that he, in fact, could not
afford private counsel after [he] was deemed ineligible
by the public defender. It’s highly relevant to the issue
of voluntariness, and it shows that the petitioner did
not have the means to hire counsel after he was denied
access to the public defender, and, therefore, when he
was forced to represent himself [at] trial, it was because
he couldn’t get another attorney.’’ (Emphasis added.)
When the petitioner continued to testify regarding
his financial status at the time he filed his original appli-
cation, the respondent’s counsel again objected, arguing
that the financial testimony was relevant only to the
indigency determination, which should have been con-
sidered in a different forum. The petitioner’s counsel
disagreed, explaining as follows: ‘‘[The petitioner’s]
attempts to find counsel . . . don’t go to whether the
public defender determined he was eligible or ineligi-
ble. We’re just going into his attempts to find counsel,
which again [go] to the issue of voluntariness and do
not really weigh on whether he was eligible or not.
I mean it does sort of, you know, tangentially, but,
specifically, his attempts to find counsel go to . . .
the issue of voluntariness and not to whether the public
defender is—eligible or ineligible.’’ (Emphasis added.)
The respondent’s counsel then cited case law describing
the criteria for determining whether there had been a
knowing, intelligent and voluntary waiver and argued
that the petitioner’s financial testimony had no bearing
on the trial court’s waiver determination because it did
not relate to the applicable criteria.6 The petitioner’s
counsel countered that the testimony was relevant
because the petitioner’s economic circumstances and
his continuing efforts to obtain counsel had a direct
bearing on whether the trial court could have con-
cluded, in light of its inadequate canvass, that he know-
ingly, intelligently and voluntarily waived his right to
counsel.
The habeas court subsequently observed that the evi-
dence introduced by the petitioner, which the court had
allowed over the objection of the respondent’s counsel,
was primarily about what the public defender’s office
did or did not do, whereas the habeas petition was
about what the trial court did or did not do. In response,
the petitioner’s counsel reminded the court that the
petitioner’s two claims related to the trial court’s inade-
quate canvass and improper waiver determination and
that the petitioner’s alleged waiver had not been clear
and unequivocal, as required by law. Following a
lengthy discussion between the court and counsel con-
cerning the petitioner’s financial circumstances when
he applied for public defender assistance and the effect
of the ineligibility determination on his right to counsel,
the petitioner’s counsel repeated: ‘‘[O]ur argument
. . . is that to waive counsel, [it] doesn’t really matter
if you’re indigent or not; you have to make a clear,
unequivocal waiver of that, and [the petitioner] did not
make that clear, unequivocal waiver.’’ (Emphasis
added.) Counsel also stated: ‘‘[T]he standard is know-
ingly, voluntarily, and intelligently. I don’t think that
indigency is something that the court has to determine
. . . .’’ (Emphasis added.)
The habeas court finally acknowledged that the peti-
tioner had pleaded his case as ‘‘an attack on the . . .
voluntariness of the [waiver]’’ but asked the respon-
dent’s counsel what would happen if the trial court
had acted properly but the public defender’s office had
made an improper eligibility determination. The respon-
dent’s counsel replied that, because the petitioner had
never made that claim, he was unprepared to address
it. The court then asked him to address whether the
court could consider such a claim, as well as its merits,
in his posttrial brief, since the petitioner ‘‘didn’t plead
it . . . .’’
The respondent stated at the outset of his posttrial
brief that he first would argue that the petitioner’s
claims were barred by procedural default and then
would argue the merits of the claims the petitioner
actually had raised, ‘‘specifically, claims of error on the
part of the trial court.’’ The respondent also stated that
he would address the claim of public defender error
that had not been raised in the amended petition but
in furtherance of which the petitioner had been allowed
to present evidence over the objections of the respon-
dent’s counsel at the habeas hearing and to which the
respondent continued to object. The respondent added
that he would end his brief by addressing the specific
questions posed by the habeas court.
On the issue of public defender error, the respondent
objected and separately moved to strike all materials
attached to or referenced in the petitioner’s posttrial
brief intended to support an argument that he was indi-
gent at the time the public defender’s office determined
otherwise on the same relevancy grounds that the
respondent’s counsel had objected to similar evidence
at the habeas hearing. The respondent also argued that
these references constituted inadmissible hearsay that
he had not been given an opportunity to challenge. In
addition, the respondent argued that the evidence had
closed when the parties rested their cases at the habeas
hearing and that the petitioner had not sought permis-
sion to reopen the record for the admission of additional
evidence. In response to the habeas court’s query
regarding its authority to decide a claim of public
defender error, the respondent argued that the peti-
tioner had raised no valid claim relating to the indigency
determination by the public defender’s office and that
the petitioner’s financial position thus was irrelevant
and outside the scope of his habeas petition.
In his posttrial brief, the petitioner did not directly
address whether the habeas court had the authority to
consider a claim of public defender error but argued
that there was no need for the habeas court to find that
the petitioner was indigent in order to conclude that
the trial court had conducted an inadequate canvass and
made an improper waiver determination. The petitioner
further argued that, even if there was such a need, the
evidence introduced at the habeas hearing established
his indigency at the time of the trial court’s canvass
and waiver determination. The petitioner concluded by
citing case law from other jurisdictions and General
Statutes § 51-296 for the proposition that a defendant
has not necessarily waived his right to counsel when
he is deemed ineligible for a public defender by the
trial court and cannot afford the assistance of private
counsel.
In addition to this direct and unequivocal evidence
that the habeas court and the parties understood the
petitioner’s claims throughout the habeas proceedings
as alleging trial court error, our review of the petition-
er’s presentation of his case also demonstrates that he
did not intend to reconstruct the application process
to prove public defender error in June, 2007, or in
November or December, 2008, when his applications
for a public defender were denied. Rather, he intended
to prove trial court error in April, 2009, when the waiver
canvass occurred. The petitioner did not offer copies
of his applications for a public defender, testimony from
the person in the public defender’s office who denied
either of his applications, or his own testimony regard-
ing the interview conducted in connection with review
of his financial affidavit. The petitioner did not attempt
to fully reconstruct the substance of the applications;
some significant information was never elicited, and
other significant information was elicited only through
cross-examination of the petitioner by the respondent’s
counsel and the habeas court’s questions. For example,
the petitioner offered evidence regarding his income in
April, 2009, by way of his representation in the trial
court waiver canvass but did not attempt to establish
his income in 2007 and 2008. Although the petitioner
offered evidence regarding his bank account balance
in June, 2007, and December, 2008, through April, 2009,
to prove that he lacked the funds to hire private counsel,
information regarding the property (purchase price, fair
market value, refinancing, etc.) and the posting of bond
was elicited through questions by the respondent’s
counsel and the habeas court.
The evidence elicited regarding the procedures of the
public defender’s office also did not relate to the dates
when the two applications were denied. The petitioner
produced the 2009 public defender income guidelines;
he did not produce the 2007 or 2008 guidelines. The
petitioner likewise did not offer the policy manual for
the public defender’s office, which guides eligibility
decisions, for any period. Canning offered only general-
ized testimony about public defender decision making
and procedures, and nothing specific to 2007 or 2008.
Carlow’s testimony addressed 2007 through 2009 proce-
dures generally, at the habeas court’s request. The one
hypothetical question regarding the petitioner’s eligibil-
ity based solely on income and the criminal charges
was framed in reference to April, 2009.
In sum, the record overwhelmingly supports the con-
clusion that the petitioner’s theory of the case was
grounded in trial court error and that the evidence elic-
ited by counsel regarding the petitioner’s trial testimony
as to his limited income, his lack of financial resources,
and his efforts to obtain counsel was intended to sup-
port his claims concerning the trial court’s allegedly
inadequate canvass and improper waiver determina-
tion. In addition, the petitioner’s counsel specifically
stated several times during the evidentiary hearing that
the petitioner’s testimony regarding his financial cir-
cumstances demonstrated that his wavier was not
knowing, intelligent and voluntary, and that he had been
compelled to represent himself in spite of his lack of
adequate resources. Counsel thus suggested that, if the
trial court had conducted a proper canvass, it would
have recognized the petitioner’s dire situation and
appointed a public defender to represent him, or would
have given him more time to obtain the resources he
required to obtain private counsel. Accordingly, the
habeas court ignored the pleadings and the petitioner’s
arguments during the habeas proceedings and redefined
the petitioner’s claims as alleging public defender error,
and the Appellate Court improperly upheld the habeas
court’s conclusions that the petitioner’s alleged claim
of public defender error was not procedurally defaulted
and that the erroneous ineligibility determination had
resulted in a denial of his constitutional right to the
assistance of counsel.
Thus, we must reverse the judgment of the Appellate
Court and direct that court to remand the case to the
habeas court for it to consider whether the petitioner’s
claims of trial court error, which he alleged in his origi-
nal petition, are procedurally defaulted and, if they are
not, to consider the claims on their merits. In addition,
if counsel requests, the habeas court should consider
allowing an amendment to the habeas petition to
include a claim of public defender error, the issue the
habeas court decided but the petitioner never alleged.7
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
remand the case to the habeas court for further proceed-
ings in accordance with the preceding paragraph.
In this opinion ROGERS, C. J., and PALMER, EVE-
LEIGH and ESPINOSA, Js., concurred.
1
The child victim, who was related to both the petitioner and to the
petitioner’s then fiance´e, resided with the petitioner and his fiance´e in the
petitioner’s house. Following the allegations of sexual abuse, the petitioner
moved out of the house and rented a place to live, while his former fiance´e
and the child remained in the house.
2
This refinancing occurred eleven months before the petitioner repre-
sented to the trial court that he was ‘‘in the process of trying to refinance
[his] property’’ to obtain the funds to hire counsel. In the habeas court, the
petitioner testified that he had not tried to refinance the property after the
January, 2007 refinancing because he ‘‘already knew that [he] . . . had
maxed out what [he] was able to refinance on a percentage of its value.’’
When the habeas court questioned the petitioner about his contrary state-
ment to the trial court, the petitioner replied that he had misstated what
he had meant to say, which was simply that he was trying to ‘‘get something
where I could use the property value,’’ and that he ‘‘was probably trying to
contact people to see if [he] could even get anything else out . . . .’’
3
Canning testified that applicants who are deemed ineligible by the public
defender’s office are ‘‘almost universally’’ told of their right to appeal from
that decision to the court.
4
A more accurate representation of the Appellate Court’s decision is that
it upheld the habeas court’s determination that cause and prejudice are
presumed when a claim concerns public defender error.
5
We note that, although the habeas court’s decision rested on the propriety
of the threshold determination by the public defender’s office that the peti-
tioner did not qualify under its guidelines and policies, and the petitioner’s
unawareness that this determination was clearly erroneous, there is no
precedent for such a theory in our courts, and the petitioner has not cited
any precedent from other jurisdictions that supports such a theory. Neverthe-
less, we need not consider whether such a theory is cognizable in light of
the record in the present case, which reveals that the petitioner did not
advance such a theory in the habeas court.
6
The petitioner’s counsel referred to State v. Coleman, 83 Conn. App.
672, 851 A.2d 329, cert. denied, 271 Conn. 910, 859 A.2d 571 (2004), cert.
denied, 544 U.S. 1050, 125 S. Ct. 2290, 161 L. Ed. 2d 1091 (2005), in which the
Appellate Court observed that ‘‘[a] defendant has knowingly and intelligently
waived the right to counsel if the trial judge finds that he: (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 proceedings, 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
dangers and disadvantages of self-representation.’’ (Internal quotation marks
omitted.) Id., 685, quoting State v. Bangulescu, 80 Conn. App. 26, 42–43,
832 A.2d 1187, cert. denied, 267 Conn. 907, 840 A.2d 1171 (2003); see also
Practice Book § 44-3.
7
Although we acknowledge the complicated circumstances that led to
the petitioner’s lack of representation by counsel at trial, we do not endorse
Justice McDonald’s suggestion that the court exercise its supervisory powers
over the administration of justice to adopt a prophylactic rule that would
prevent trial courts from trying a defendant deemed ineligible for public
defender services as an unrepresented party without first holding a hearing
on the issue of indigency. Rather, we believe this issue should be addressed,
if at all, by the Rules Committee of the Superior Court, which provides a
more appropriate forum in which to fully and fairly consider any potential
amendment to the procedural rules.