Newland v. Commissioner of Correction

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NEWLAND v. COMMISSIONER OF CORRECTION—DISSENT
McDONALD, J., with whom ROBINSON, J., joins, dis-
senting. Prior to his criminal trial, the petitioner, Gene
Newland, was a gas station employee making less than
$10 per hour. His only asset was a piece of residential
property with limited equity that was encumbered by
a mortgage in default. Despite submitting two applica-
tions for legal representation to the public defender’s
office in Danielson, that office twice denied the peti-
tioner its services because he owned real estate, even
though there was no information to suggest his modest
equity in the property was accessible to him while his
mortgage was in default. Having been denied the ser-
vices of a public defender, the petitioner attempted,
over an extended period of time, to retain a private
attorney who would agree to represent him against
serious sexual assault charges. The petitioner repeat-
edly informed the trial court, over a period of two years,
that he could not find an attorney who would represent
him with the financial resources he had available to
him. The trial court deemed the petitioner’s inability to
secure private counsel as an ‘‘implied waiver’’ of the
petitioner’s right to counsel, and compelled him to face
the state’s charges against him without legal representa-
tion. Applying an unduly rigid view of the record, the
majority concludes that the petitioner was not entitled
to habeas relief on the basis of public defender error.
This case reveals fundamental flaws in our proce-
dures for protecting an indigent criminal defendant’s
constitutional right to appointed counsel. In light of
those glaring shortcomings, I would exercise our super-
visory authority to adopt a prophylactic procedural rule
to ensure that such a fundamental miscarriage of justice
does not recur.
I need not decide whether to apply this rule retrospec-
tively to the present case, however, because I disagree
with the majority’s conclusion that public defender
error was not a proper basis on which to grant habeas
relief. Even under the majority’s cramped view of the
record, this case raises the essential question of
whether it is preferable for our habeas courts to address
a meritorious claim supported by the petitioner’s evi-
dence and filings, even if not squarely raised in the
petition, as long as there is no prejudice to the respon-
dent, the Commissioner of Correction, or whether those
courts should ignore that basis for relief and leave that
matter to a subsequent habeas petition alleging ineffec-
tive assistance of habeas counsel. Given the fundamen-
tal interests implicated and the substantial delay
attendant to successive habeas proceedings, I believe
that the former course of action is more jurispruden-
tially sound. The majority avoids these problems in the
present case only because it remands the case to the
habeas court to resolve the claims squarely raised in
the petition and suggests the possibility of amending
the petition to add a claim of public defender error.
Such a remedy would not be available in most cases.
With respect to the merits of the claim of public
defender error, I would conclude that the Appellate
Court properly determined: (1) that the petitioner’s
claim was not barred by procedural default because,
contrary to the respondent’s position, the prejudice nec-
essary to overcome such a default is presumed for
claims of denial of counsel; and (2) that the evidence
supported the habeas court’s conclusion that the peti-
tioner was entitled to prevail on this claim. Newland
v. Commissioner of Correction, 151 Conn. App. 134,
148, 152–53, 94 A.3d 676 (2014).
I
I begin with the multiple procedural failures revealed
by the record in this case. First, the petitioner was never
informed that he had a statutory right to appeal the
public defender’s decisions deeming him ineligible for
appointed counsel. See General Statutes § 51-297 (g).
As of the time of trial in this case, the Office of the
Chief Public Defender had no formalized procedure for
ensuring that such information was communicated to
a defendant. The public defender’s office in Danielson
‘‘almost universally,’’ but not always, orally communi-
cated that information.
Second, the trial court, Robaina, J., effectively
informed the petitioner that he did not have a right to
appeal the public defender’s eligibility determination.
The petitioner was told: ‘‘You either qualify for the pub-
lic defender services or you don’t, and that’s a determi-
nation made by them independent of the court.’’
(Emphasis added.) There is currently no rule of practice
or statute that requires the trial court to inform a defen-
dant on the record of his statutory right to appeal such
a determination to the trial court before which his case
is pending. Nor is there any provision that prescribes
either the procedure for initiating such an appeal or
the obligations of the court in conducting such a pro-
ceeding. Nonetheless, the trial court’s statement was
at the very least misleading, and at best in direct conflict
with the statute conferring a right of judicial review.
See General Statutes § 51-297 (g) (‘‘[i]f the Chief Public
Defender or anyone serving under the Chief Public
Defender determines that an individual is not eligible
to receive the services of a public defender under this
chapter, the individual may appeal the decision to the
court before which the individual’s case is pending’’
[emphasis added]).
Third, no one from the public defender’s office ever
offered, or was required by the trial court, to appear
before the court to explain the basis of the denials,
despite the numerous proceedings at which the peti-
tioner told the court that he could not afford private
counsel but had been deemed ineligible for a public
defender. A survey of our appellate case law reveals
no uniform procedure in such circumstances. In some
cases, a representative from the local office of the public
defender has appeared in court without being com-
pelled to do so to explain on the record why the defen-
dant was deemed ineligible, thus providing the
defendant an opportunity to contest or explain the fac-
tual basis for the denial. See, e.g., State v. Henderson,
307 Conn. 533, 541–42, 55 A.3d 291 (2012); State v.
Gamer, 152 Conn. App. 1, 10–11, 95 A.3d 1223 (2014);
State v. Flemming, 116 Conn. App. 469, 476, 976 A.2d 37
(2009). In some cases, the defendant has been provided
with a list of attorneys who might be available to provide
representation. See, e.g., State v. Gamer, supra, 11; see
also General Statutes § 51-291 (11) (Chief Public
Defender must ‘‘[m]aintain one or more lists of trial
lawyers who may be available to represent persons in
. . . appropriate matters on a case by case basis, as
needed, which lawyers shall be selected by a judge of
the court before which the matter is to be heard’’). In
some cases, the court has appointed a public defender
as standby counsel. See, e.g., State v. Henderson, supra,
536. In others, like the present case, no such information
or services was elicited or provided. Although I do not
intend to suggest that any particular action is constitu-
tionally mandated, the randomness of the process
undermines the perception of fairness in our criminal
justice system.
Given the fundamental interests at stake, however, I
would exercise our supervisory powers over the admin-
istration of justice to adopt a prophylactic procedural
rule: trial judges, upon being advised that a criminal
defendant desires counsel and cannot afford a private
attorney, but has been deemed ineligible for public
defender services, would be precluded from trying that
defendant as an unrepresented party unless a hearing
is held at which: (1) a public defender appears before
the trial court to explain why the defendant does not
qualify for services under the applicable eligibility
guidelines; (2) the defendant is apprised on the record
of his statutory right under § 51-297 (g) to an indepen-
dent judicial determination as to his eligibility for
appointed counsel; and (3) the trial court has conducted
that independent review of the defendant’s financial
resources, either sua sponte or at the request of the
defendant, to ascertain the defendant’s financial ability
to retain counsel.1 Only if the trial court finds that the
defendant has the financial resources to retain compe-
tent private counsel at prevailing market rates in that
judicial district should it decline to assign counsel to
represent the defendant.2 The trial court, of course,
retains discretion to hold against the defendant any
failure to cooperate with that inquiry.
In my view, this procedure is consistent with the
governing statutory scheme and the trial court’s over-
arching responsibility to appoint counsel for indigent
defendants under General Statutes § 51-296 (a), insofar
as the rules of practice are silent on this point and § 51-
297 (g) does not prescribe any particular procedure for
the ‘‘appeal’’ to the trial court from an adverse indigency
determination by the public defender. Needless to say,
I do not object to any efforts by either the Rules Commit-
tee of the Superior Court or the legislature to effectuate
this supervisory directive with greater specificity.
II
I need not decide whether this rule should be applied
to the present case because, unlike the majority, I would
conclude that the Appellate Court properly determined
that the petitioner was entitled to prevail on a claim of
public defender error. Nonetheless, the flaws revealed
in this case that persuade me that we should adopt
such a rule are relevant to my resolution of this issue.
I begin this part of this dissenting opinion by explaining
why the habeas court properly could grant relief on a
claim of public defender error. I then address why the
habeas court properly rejected the respondent’s affir-
mative defense of procedural default. Finally, I explain
why the evidence was sufficient to support the claim
of public defender error.
A
Public Defender Error As a Proper Basis for Relief
To place the record in this case in its proper context,
we must be mindful of the underlying principles and
parameters of our statutory scheme governing
appointed counsel. ‘‘It is the duty of the state to provide
adequate means to assure that no indigent accused
lacks full opportunity for his defense . . . . The right
to legal and financial assistance at state expense is,
however, not unlimited. Defendants seeking such assis-
tance must satisfy the court as to their indigency . . . .
This has largely been accomplished through [public
defender services] . . . which has promulgated guide-
lines that are instructive as to the threshold indigency
determination. . . .
‘‘[Section] 51-297 (a) requires the public defender’s
office to investigate the financial status of an individual
requesting representation on the basis of indigency,
whereby the individual must, under oath or affirmation,
set forth his liabilities, assets, income and sources
thereof. . . . Upon a determination by the public
defender that an individual is not eligible for its services,
the individual may appeal the decision to the court
before which his case is pending.’’ (Internal quotation
marks omitted.) State v. Henderson, supra, 307 Conn.
540–41. ‘‘[Section] 51-296 (a) requires that, [i]n any crim-
inal action . . . the court before which the matter is
pending shall, if it determines after investigation by the
public defender or his office that a defendant is indigent
as defined under this chapter, designate a public
defender . . . to represent such indigent defendant
. . . .’’ (Internal quotation marks omitted.) Id., 541.
Under the chapter of our General Statutes governing
public defender services, ‘‘ ‘indigent defendant’ means
. . . a person who is formally charged with the commis-
sion of a crime punishable by imprisonment and who
does not have the financial ability at the time of his
request for representation to secure competent legal
representation and to provide other necessary
expenses of legal representation . . . .’’ (Emphasis
added.) General Statutes § 51-297 (f) (1). As our appel-
late courts noted long ago, ‘‘[i]ndigence must be con-
ceived as a relative concept. An impoverished accused
is not necessarily one totally devoid of means . . . nor
must one be absolutely destitute to enjoy the benefit
of the statute. . . . The simple and direct characteriza-
tion made by . . . Justice Black in Gideon v. Wain-
wright, 372 U.S. 335, [344, 83 S. Ct. 792, 9 L. Ed. 2d 799
(1963)], is particularly apropos: an indigent is a person
who is too poor to hire a lawyer.’’ (Citations omitted;
internal quotation marks omitted.) State v. Harris, 5
Conn. Cir. Ct. 313, 315, 250 A.2d 719 (App. Div. 1968).
Thus, a defendant who lacks the financial ability to
secure competent legal representation when seeking
the services of a public defender but is denied those
services has wrongfully been denied such services.
In considering whether a claim of public defender
error was properly before the habeas court in the pre-
sent case, I am mindful that ‘‘the habeas court has
considerable discretion to frame a remedy that is com-
mensurate with the scope of the established constitu-
tional violations . . . [but] it does not have the
discretion to look beyond the pleadings and trial evi-
dence 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 omitted; internal quotation marks
omitted.) Lebron v. Commissioner of Correction, 274
Conn. 507, 519–20, 876 A.2d 1178 (2005), overruled on
other grounds by State v. Elson, 311 Conn. 726, 747,
754, 91 A.3d 862 (2014).
It is conceded that the petition specifically alleged
trial court error and not public defender error. Nonethe-
less, in a claim of trial court error for accepting an
‘‘implied waiver’’ based on an incorrect determination
of the petitioner’s eligibility for public defender ser-
vices, the latter error would be subsumed under the
former. Indeed, the entirety of the record—filings, evi-
dence, and argument at the evidentiary hearing—clearly
reflects a broader theory that implicates public
defender error in relation to the claims in the petition.
That theory was that the public defender’s eligibility
decision was improper because the petitioner was in
fact indigent, but that he could prevail even without
establishing that fact because his statements to the trial
court: (1) should have compelled a conclusion that the
petitioner did not voluntarily waive his right to counsel;
and (2) should have prompted the trial court to conduct
a further inquiry to determine whether the petitioner
was entitled to appointed counsel. The petitioner, how-
ever, clearly argued that he was improperly denied
appointed counsel. Specifically, in his reply to the
respondent’s return, in his pretrial brief, and in his oppo-
sition to the respondent’s motion for summary judg-
ment on the ground of procedural default, the petitioner
asserted that he had been denied a public defender
but nonetheless lacked sufficient funds to hire private
counsel. Such statements are equivalent to the statutory
definition of indigence, the standard that dictates
whether the public defender’s office and the court must
assign a public defender. See General Statutes § 51-297
(f) (1) (indigent defendant is one ‘‘who does not have
the financial ability at the time of his request for repre-
sentation to secure competent legal representation and
to provide other necessary expenses of legal representa-
tion’’); see also General Statutes §§ 51-296 (a) and 51-
297 (a) (imposing duties on court and public defender
to appoint counsel for indigent defendant).3 In his oppo-
sition to the respondent’s motion for summary judg-
ment, the petitioner unambiguously asserted that there
was a material issue of fact as to whether he had volun-
tarily given up his right to counsel because he ‘‘was
forced into this position, as he was inappropriately
deemed ineligible for the assistance of a public
defender.’’ (Emphasis added.)
In considering whether a claim is properly before the
habeas court, we are obligated to consider whether it
has been raised in such a way as to put the respondent
on notice so that he can fairly and adequately respond
to that claim. That requirement was met in the present
case. The respondent had notice that this issue was
implicated in the case and he has not established that
the habeas court’s shift in focus from trial error to
public defender error prejudiced him.4 The respondent’s
return and motion for summary judgment argued that
the petition must fail because the petitioner had not
appealed from the public defender’s decision or dis-
puted the basis of that decision. As previously indicated,
the petitioner’s opposition to the motion unambigu-
ously asserted that there had been public defender
error. From the very commencement of the evidentiary
hearing, the respondent’s objections reflected his view
that the petitioner’s evidence related to the propriety
of the public defender’s decision, not the trial court’s
decision.5
The only prejudice that the respondent claims arises
from the habeas court’s consideration of public
defender error is that, if he had known that such a claim
was being advanced, he would have alleged procedural
default due to the petitioner’s failure to appeal the pub-
lic defender’s decision.6 The habeas court, however,
understood the respondent’s affirmative defense of pro-
cedural default to extend to this claim, considered it,
and squarely rejected it. Indeed, in response to the
habeas court’s directive that the respondent address in
his posttrial brief whether a claim of public defender
error properly could be considered, the respondent
never claimed prejudice. He never argued that the evi-
dence must be opened to allow him to present other
evidence, or contended that he would be entitled to a
continuance in order to respond to a claim of public
defender error. Even in his appellate brief, the respon-
dent makes no argument that he would have presented
additional evidence or advanced a different litigation
strategy. To the extent that the respondent implies that
he was precluded from offering legal arguments in sup-
port of procedural default as to a claim of public
defender error, it is unclear why such arguments could
not have been presented in response to the habeas
court’s directive that the posttrial brief should address
both whether that claim could be considered and
whether the petitioner could prevail on that claim.
Accordingly, I am not only persuaded that the respon-
dent was not unfairly surprised by the habeas court’s
consideration of public defender error, but that a con-
trary conclusion would not ‘‘do substantial justice
between the parties.’’ (Internal quotation marks omit-
ted.) Lebron v. Commissioner of Correction, supra, 274
Conn. 520. Therefore, I would conclude that the habeas
court properly considered whether the petitioner could
prevail on this claim.
B
Whether a Claim of Public Defender Error Is
Barred by Procedural Default
The respondent contends that the petitioner’s claim
is barred by procedural default because the petitioner
did not establish both cause and prejudice to overcome
the default. More specifically, the respondent contends
that the Appellate Court improperly concluded that the
presumption of prejudice that applies to a court’s sub-
stantive determination that there has been a denial of
counsel also applies to the procedural default inquiry
that precedes a determination on the merits. I disagree.
I begin with the general principles governing proce-
dural default. ‘‘Although this court is not compelled
to conform state postconviction procedures to federal
procedures’’; Crawford v. Commissioner of Correction,
294 Conn. 165, 182, 982 A.2d 620 (2009); ‘‘our own juris-
prudence concerning habeas corpus procedural
defaults has developed in tandem with federal habeas
corpus jurisprudence . . . .’’ Id., 180. This court has
adopted the general rule in Wainwright v. Sykes, 433
U.S. 72, 87, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977),
requiring a habeas petitioner to ‘‘demonstrate good
cause for his failure to raise a claim at trial or on direct
appeal and actual prejudice resulting from the impropri-
ety claimed in the habeas petition’’ before a court will
entertain the merits of the substantive claim. Crawford
v. Commissioner of Correction, supra, 191; see Johnson
v. Commissioner of Correction, 218 Conn. 403, 409, 589
A.2d 1214 (1991). Actual prejudice in this context means
‘‘actual and substantial disadvantage, infecting [the
criminal proceeding] with error of constitutional dimen-
sions.’’ (Emphasis omitted.) United States v. Frady, 456
U.S. 152, 170, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982);
accord Johnson v. Commissioner of Correction, 285
Conn. 556, 570–71, 941 A.2d 248 (2008). The cause and
prejudice standard ‘‘is designed to prevent full review
of issues in habeas corpus proceedings that counsel
did not raise at trial or on appeal for reasons of tactics,
[inadvertence] or ignorance . . . .’’7 (Internal quotation
marks omitted.) Crawford v. Commissioner of Correc-
tion, supra, 191.
In many cases, the prejudice inquiry for procedural
default can substantially overlap or merge with the
showing of harm required to prevail on a claim of consti-
tutional error. See, e.g., Johnson v. Commissioner of
Correction, supra, 285 Conn. 570–71 (concluding that
similarity of prejudice necessary to prevail on claim of
ineffective assistance of counsel to threshold showing
of cause and prejudice to overcome procedural default
makes it unnecessary to engage in latter inquiry). A
claim of denial of counsel, however, is different.
It is a bedrock principle that ‘‘the right to counsel
is the foundation for our adversary system. Defense
counsel tests the prosecution’s case to ensure that the
proceedings serve the function of adjudicating guilt or
innocence, while protecting the rights of the person
charged. See, e.g., Powell v. Alabama, 287 U.S. 45, 68–69,
53 S. Ct. 55, 77 L. Ed. 158 (1932) (‘[The defendant]
requires the guiding hand of counsel at every step in
the proceedings against him. Without it, though he be
not guilty, he faces the danger of conviction because
he does not know how to establish his innocence’).’’
Martinez v. Ryan, U.S. , 132 S. Ct. 1309, 1317, 182
L. Ed. 2d 272 (2012).
Accordingly, ‘‘[a]ctual or constructive denial of the
assistance of counsel altogether is legally presumed to
result in prejudice.’’ Strickland v. Washington, 466 U.S.
668, 692, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see
also United States v. Cronic, 466 U.S. 648, 659, 104 S.
Ct. 2039, 80 L. Ed. 2d 657 (1984) (prejudice presumed
when [1] counsel completely denied, [2] when counsel
denied at critical stage of trial, and [3] when counsel
‘‘fails to subject the prosecution’s case to meaningful
adversarial testing’’). This is an irrebuttable presump-
tion. See State v. Frye, 224 Conn. 253, 262, 617 A.2d 1382
(1992) (‘‘right to counsel is so basic that its violation
mandates reversal even if no particular prejudice is
shown and even if there is overwhelming evidence of
guilt’’ [internal quotation marks omitted]).
Although the original rationale for this presumption
was that prejudice ‘‘in these circumstances is so likely
that case-by-case inquiry into prejudice is not worth
the cost’’; Strickland v. Washington, supra, 466 U.S.
692; a more constitutionally significant rationale later
emerged as the United States Supreme Court’s struc-
tural error jurisprudence developed. The Supreme
Court explained that trial errors occur ‘‘during presenta-
tion of the case to the jury and their effect may be
quantitatively assessed in the context of other evidence
presented in order to determine whether [they were]
harmless beyond a reasonable doubt. . . . These
include most constitutional errors. . . . [S]tructural
defects [however] . . . defy analysis by harmless-error
standards because they affec[t] the framework within
which the trial proceeds, and are not simply an error
in the trial process itself. . . . Such errors include the
denial of counsel . . . the denial of the right of self-
representation . . . the denial of the right to public
trial . . . and the denial of the right to trial by jury by
the giving of a defective reasonable-doubt instruction
. . . .’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.) United States v. Gonzalez-
Lopez, 548 U.S. 140, 148–49, 126 S. Ct. 2557, 165 L. Ed.
2d 409 (2006).
Particularly telling for our purposes is the distinction
that the United States Supreme Court has drawn
between assessing prejudice when a defendant has been
deprived of the counsel of his choice and when a defen-
dant has received ineffective assistance of counsel: ‘‘[I]f
and when counsel’s ineffectiveness ‘pervades’ a trial,
it does so (to the extent we can detect it) through
identifiable mistakes. We can assess how those mis-
takes affected the outcome. To determine the effect of
wrongful denial of choice of counsel, however, we
would not be looking for mistakes committed by the
actual counsel, but for differences in the defense that
would have been made by the rejected counsel—in
matters ranging from questions asked on voir dire and
cross-examination to such intangibles as argument style
and relationship with the prosecutors. We would have
to speculate upon what matters the rejected counsel
would have handled differently—or indeed, would have
handled the same but with the benefit of a more jury-
pleasing courtroom style or a [long-standing] relation-
ship of trust with the prosecutors. And then we would
have to speculate upon what effect those different
choices or different intangibles might have had. The
difficulties of conducting the two assessments of preju-
dice are not remotely comparable.’’ Id., 150–51. The
difficulties of assessing prejudice from a denial of coun-
sel of choice would apply to an even greater extent
when counsel is completely denied.
Thus, when a denial of counsel claim has been proce-
durally defaulted, these two lines of jurisprudence are
ostensibly in tension. On the one hand, such a denial
is legally presumed to result in prejudice. On the other
hand, the general rule is that a petitioner is required to
demonstrate prejudice to overcome a bar of procedural
default. The question therefore is whether prejudice
similarly should be presumed in the procedural
default inquiry.
The courts that have addressed this question have
universally resolved that question in the affirmative.8
See Robinson v. Ignacio, 360 F.3d 1044, 1054–55 (9th
Cir. 2004); Shayesteh v. South Salt Lake, 217 F.3d 1281,
1284 (10th Cir. 2000), cert. denied, 531 U.S. 1171, 121
S. Ct. 1139, 148 L. Ed. 2d 1003 (2001); Guzman v. United
States, Docket No. C.A. 98-12086 (MLW), 2004 WL
3710110, *8–9 (D. Mass. June 4, 2004); Coleman v.
Ignacio, 164 F.R.D. 679, 684 (D. Nev. 1996). Our Appel-
late Court has reached a similar conclusion. See Dennis
v. Commissioner of Correction, 134 Conn. App. 520,
536–37, 39 A.3d 799 (2012).
I recognize that, in connection with structural errors
other than denial of counsel, some courts have deter-
mined that prejudice should not be presumed for pur-
poses of procedural default. See Jones v. Bell, 801 F.3d
556, 563 (6th Cir. 2015) (denial of self-representation
claim not entitled to presumption), cert. denied sub
nom. Jones v. Smith, U.S. , 136 S. Ct. 878, 193
L. Ed. 2d 735 (2016); Ambrose v. Booker, 684 F.3d 638,
649 (6th Cir. 2012) (denial of claim that jury was not
fair cross-section not entitled to presumption), cert.
denied, U.S. , 133 S. Ct. 993, 184 L. Ed. 2d 771
(2013); Purvis v. Crosby, 451 F.3d 734, 743 (11th Cir.)
(denial of public trial claim not entitled to presump-
tion), cert. denied sub nom. Purvis v. McDonough, 549
U.S. 1035, 127 S. Ct. 587, 166 L. Ed. 2d 436 (2006);
Commonwealth v. LaChance, 469 Mass. 854, 857, 17
N.E.3d 1101 (2014) (denial of public trial claim not
entitled to presumption), cert. denied, U.S. , 136
S. Ct. 317, 193 L. Ed. 2d 227 (2015); see also Perkins
v. Hall, 288 Ga. 810, 829, 708 S.E.2d 335 (2011) (‘‘[t]he
general rule is that presumptions of harm that would
have applied on direct appeal do not apply on habeas
corpus to procedurally defaulted claims’’). But see
Owens v. United States, 483 F.3d 48, 64 (1st Cir. 2007)
(‘‘a defendant who is seeking to excuse a procedurally
defaulted claim of structural error need not establish
actual prejudice’’). The principal authority cited in those
cases is Davis v. United States, 411 U.S. 233, 93 S. Ct.
1577, 36 L. Ed. 2d 216 (1973). See, e.g., Ambrose v.
Booker, supra, 649. In Davis, a federal prisoner collater-
ally attacked his conviction on grounds of unconstitu-
tional discrimination in the composition of the grand
jury that indicted him, after failing to comply with a
federal rule deeming such claims waived unless raised
before trial. Davis v. United States, supra, 234–35. In
rejecting the petitioner’s reliance on case law deeming
such a violation inherently prejudicial, the court stated:
‘‘The presumption of prejudice which supports the exis-
tence of the right is not inconsistent with a holding that
actual prejudice must be shown in order to obtain relief
from a statutorily provided waiver for failure to assert
it in a timely manner.’’ Id., 245; see also Francis v.
Henderson, 425 U.S. 536, 542, 96 S. Ct. 1708, 48 L. Ed.
2d 149 (1976) (applying same rule to similar issue raised
in collateral attack of state conviction).
I do not find this authority persuasive as applied to
the present case for the following reasons. First, most
of the courts that have refused to apply a presumption
of prejudice to certain procedurally defaulted structural
errors have indicated that a denial of counsel would
be one of the limited circumstances in which such a
presumption would still apply. See Ambrose v. Booker,
supra, 684 F.3d 652; Purvis v. Crosby, supra, 451 F.3d
741; Upton v. Jones, 280 Ga. 895, 897, 635 S.E.2d 112
(2006); Commonwealth v. LaChance, supra, 469 Mass.
860. Indeed, the United States Supreme Court has recog-
nized that ‘‘[i]t is only for certain structural errors
undermining the fairness of a criminal proceeding as a
whole that even preserved error requires reversal with-
out regard to the mistake’s effect on the proceeding.
See Arizona v. Fulminante, 499 U.S. 279, [309–10, 111
S. Ct. 1246, 113 L. Ed. 2d 302] (1991) (giving examples).’’
(Emphasis added.) United States v. Dominguez Beni-
tez, 542 U.S. 74, 81, 124 S. Ct. 2333, 159 L. Ed. 2d 157
(2004).
Second, Davis and Francis predate development of
the United States Supreme Court’s structural error juris-
prudence, wherein the court emphasized the difficulty,
if not impossibility, in certain cases of quantifying the
prejudice arising from the constitutional violation.
Indeed, as some courts rightly have pointed out, an
assessment of prejudice becomes no more possible in
one context than in the other. See, e.g., Owens v. United
States, supra, 483 F.3d 64–65. Although some errors
are deemed structural for reasons other than that their
impact on the reliability of the verdict cannot be ascer-
tained; see J. Blume & S. Garvey, ‘‘Harmless Error in
Federal Habeas Corpus after Brecht v. Abrahamson,’’
35 Wm. & Mary L. Rev. 163, 185–87 (1993); it is clear
that denial of counsel does not fall into this class of
errors. See United States v. Gonzalez-Lopez, supra, 548
U.S. 150–51.
In the alternative, however, the respondent argues
that no presumption of prejudice could apply to this
case in any event because there has been no showing
of a denial of counsel at the point of procedural default,
namely, the failure to appeal the judgment of convic-
tion.9 There is limited authority, not cited by the respon-
dent, that lends some support to this position. See
Stokes v. Scutt, 527 Fed. Appx. 358, 367–68 (6th Cir.
2013) (recognizing that petitioner’s failure to raise claim
on appeal that he was forced to represent himself at
trial in violation of sixth amendment right to counsel
might have been excused had he timely raised claim of
ineffective assistance of appellate counsel); Robinson v.
Ignacio, supra, 360 F.3d 1052–54 (petitioner established
cause to excuse failure to raise claim of denial of sen-
tencing counsel on direct appeal because stipulation
had been entered into with state while that appeal was
pending deemed such claim properly before habeas
court in separate action).
This position ignores reality, especially in the present
case. A defendant generally has twenty days to appeal
a judgment of conviction. Practice Book § 63-1 (a). It
is trial counsel who advises a defendant whether there
are legitimate grounds for appeal. Trial counsel is
deemed to have appeared in the appeal unless he or
she is granted permission to withdraw his or her appear-
ance in the case or an in lieu of appearance has been
filed by other counsel. Practice Book § 62-8. A self-
represented defendant who has not chosen self-repre-
sentation voluntarily and who challenges his denial of
counsel should not be presumed to have sufficient
knowledge and resources to ascertain within that
period whether he has a legally tenable basis to appeal.
Cf. Martinez v. Ryan, supra, 132 S. Ct. 1317 (‘‘[t]he
prisoner, unlearned in the law, may not comply with
the [s]tate’s procedural rules or may misapprehend the
substantive details of federal constitutional law’’).
Indeed, it seems wholly illogical to suggest that one
who is presumed to have been prejudiced by the denial
of counsel is somehow able to competently serve as
his own counsel in deciding whether he has a tenable
legal basis to appeal from the judgment in a trial in
which he should not have been required to represent
himself. Insofar as the respondent seems to suggest
that the petitioner was required to apply for and be
denied an appellate public defender, the petitioner had
been told that his ownership of property was disqualify-
ing. There is nothing in the record to indicate that this
fact changed in the intervening period between the com-
mencement and conclusion of the criminal trial.
Accordingly, I would conclude that the Appellate Court
properly determined that the habeas court properly pre-
sumed prejudice to excuse the procedural default.
C
Whether the Petitioner Established Public
Defender Error
The respondent also claims that the habeas court
improperly concluded that the petitioner met his burden
of proof on a claim of public defender error. The respon-
dent asserts three arguments: (1) the petitioner could
not prevail without proving that the trial court’s implicit
determination that the petitioner did not prove his indi-
gence was clearly erroneous; (2) the petitioner could
not prevail without presenting his public defender appli-
cations because, in the absence of such evidence, the
bases for the denial are unknown; and (3) even if the
evidence that the petitioner presented could have been
credited as having been presented to the public
defender, it does not establish that the eligibility deci-
sion was improper. I disagree with each of these con-
tentions.
Generally, ‘‘the trial court’s assessment of the defen-
dant’s offer of proof pertaining to whether he was indi-
gent and was, therefore, eligible for state funded expert
assistance, is a factual determination subject to a clearly
erroneous standard of review. . . . A finding of fact is
clearly erroneous when there is no evidence in the
record to support it . . . or when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed.’’ (Internal quotation
marks omitted.) State v. Henderson, supra, 307 Conn.
540.
In the present case, however, the respondent’s argu-
ments regarding the necessity of proving trial court
error and of producing the public defender applications
ignore the significance of a critical, unchallenged fac-
tual finding, as well as other facts plainly reflected in
the record. The habeas court found that the petitioner
had not been informed of his statutory right to appeal
the public defender’s decision. Judge Robaina advised
the petitioner that the indigence determination is made
by the public defender’s office ‘‘independent of the
court.’’ Nothing that the trial court, Hon. Russell F.
Potter, judge trial referee, said or did in conducting the
waiver canvass would have disabused the petitioner of
this notion. Judge Potter did not request that the public
defender appear in court to explain the basis for the
denials before making the implied waiver finding. The
petitioner had no ground to dispute the factual basis
for the denials, as he understood it. He believed that
his mere ownership of property had automatically ren-
dered him ineligible for public defender services.
We apply the deferential, clearly erroneous standard
of review to a trial court’s finding of indigence when a
defendant has been given a reasonable opportunity to
challenge the public defender’s decision. For the rea-
sons previously stated, that did not happen in this case.
In the absence of a formal challenge to the public
defender’s decision, Judge Potter simply assumed the
correctness of the determination of ineligibility.10
I recognize that there is Appellate Court case law
holding that, even when there is a question whether
the defendant had notice of the right to appeal the
public defender’s decision, a trial court’s determination
that a defendant is not indigent may be upheld. See State
v. Flemming, supra, 116 Conn. App. 483 (‘‘Although the
defendant, representing himself, could not be expected
to be aware of [the] specific statutory opportunity to
appeal, neither did he at any point provide the court
with notice that he disagreed with and did not accept
the determination of the public defender. Absent any
statutory or other duty to conduct further investigation
into the public defender’s indigency determination or
any cognizable appeal of the determination by the
defendant, the court was entitled to accept the report
of the public defender and proceed with the violation
of probation hearing as it did.’’). The circumstances of
that case, however, are materially distinguishable from
those in the present case. In Flemming, the public
defender appeared in court and explained that the
defendant’s application had been denied because he
previously had posted $200,000 in bonds and had not
filled out the application completely. Id., 475. The defen-
dant did not contest these facts; id.; which clearly would
have provided a proper presumptive basis to deem the
defendant ineligible. See State v. Henderson, supra, 307
Conn. 541 (defendant not entitled to public defender
when $380,000 in bonds posted); State v. Gamer, supra,
152 Conn. App. 5, 11 (defendant not entitled to public
defender when $200,000 surety bond posted, defendant
appeared with private counsel, and public defender
indicated that defendant had ‘‘ ‘considerable’ ’’ funds in
bank account); see also State v. Martinez, 295 Conn.
758, 784, 991 A.2d 1086 (2010) (defendant not entitled
to state funded DNA expert when defendant appeared
with private counsel after refusing to permit public
defender to represent him and failed to provide relevant
information regarding assets); State v. Guitard, 61
Conn. App. 531, 539, 765 A.2d 30 (defendant not entitled
to public defender when defendant appeared with coun-
sel and admitted that he was not indigent), cert. denied,
255 Conn. 952, 770 A.2d 32 (2001).
For similar reasons, the petitioner is not precluded
from obtaining relief due to his failure to obtain copies
of his applications for public defender services to vindi-
cate his right to appeal the eligibility determination. By
the time the petitioner obtained counsel who could
inform him of his right to challenge that determina-
tion—at the commencement of his habeas proceed-
ings—the public defender’s office had destroyed his
applications.11 Although the respondent suggests the
possibility that, in the absence of the applications, we
cannot be sure that the petitioner was not deemed ineli-
gible because he failed to provide complete information
to the public defender regarding his assets and liabili-
ties; see, e.g., State v. Flemming, supra, 116 Conn. App.
475; State v. Kennedy, 315 Wis. 2d 507, 521–22, 762
N.W.2d 412 (2008); the record in the present case indi-
cates otherwise. Raymond Canning, the Chief Public
Defender for the judicial district of Windham at Dan-
ielson, testified that the procedure in the Danielson
office, following the submission of an application, is to
send a notice to the state’s attorney, through the mar-
shal, with one of three categories checked off: granted,
denied, or further information needed. The record indi-
cates that the state’s attorney agreed that the petition-
er’s applications had been denied.
Having concluded that our review is focused on the
propriety of the habeas court’s conclusion that the pub-
lic defender’s eligibility determination was erroneous,
I now turn to that question. Because there is no prece-
dent for review of a habeas court’s determination of
public defender error, I first must determine the appro-
priate standard of review. I conclude that the habeas
court’s finding of indigence should be reviewed under
the clearly erroneous standard, the same standard used
to review a trial court’s finding of indigence following
an appeal of the public defender’s decision of eligibility
for services. State v. Henderson, supra, 307 Conn. 540;
see Sanchez v. Commissioner of Correction, 314 Conn.
585, 604, 103 A.3d 954 (2014) (‘‘habeas court is afforded
broad discretion in making its factual findings, and
those findings will not be disturbed unless they are
clearly erroneous’’ [internal quotation marks omitted]).
The habeas court, however, must consider all of the
factors that would be relevant to a determination of
eligibility for public defender services. In assessing all
of those factors, it is important to underscore that ‘‘[t]he
habeas judge, as the trier of facts, is the sole arbiter of
the credibility of witnesses and the weight to be given to
their testimony.’’ (Internal quotation marks omitted.) Id.
Under this standard of review, I conclude that the
habeas court’s finding that the petitioner was eligible
for defender services from the time his second applica-
tion was denied in December, 2008, through the waiver
canvass in April, 2009, cannot be deemed clearly errone-
ous.12 The habeas court properly could credit the peti-
tioner’s testimony that all of the information provided
to that court regarding his income, assets, and liabilities
also had been provided to the public defender when
he submitted his applications for services. The court
credited the petitioner’s testimony and documentary
evidence regarding his low wage employment and lack
of funds in any bank account. These factors made the
petitioner presumptively income eligible for public
defender services in light of the serious charges he
faced.
The majority argues, however, that the petitioner nei-
ther established his income nor the public defender
income guidelines for 2007 and 2008—proof that he did
not intend to advance a claim of public defender error.
The majority overlooks, however, evidence from which
the habeas court could have drawn reasonable infer-
ences as to the relevant facts. The petitioner introduced
into evidence his bank account statements for 2007,
2008, and 2009. He testified before the habeas court
that he had worked the third shift at the Xtra Mart
Mobil station in Dayville in both December, 2008, and
April, 2009. The transcript of the April, 2009 waiver
canvass that was offered into evidence at the habeas
court revealed that the petitioner cited the same shift
and employer, along with his weekly wage ($300 to
$350), when asked by the trial court about his current
employment. Therefore, the habeas court logically
would have inferred that the petitioner’s income was
the same or approximately the same four months earlier
when he applied for a public defender. Similarly, with
respect to the public defender income guidelines, in
light of testimony establishing the basis of the modest
annual adjustments to those guidelines, the habeas
court reasonably would have inferred that the 2008
guidelines were not materially lower than those for the
2009 guidelines that the petitioner offered into evi-
dence. Finally, public defender error in 2008 would have
been the only denial logically relevant to the April, 2009
waiver canvass.
Having properly concluded that the petitioner was
presumptively income eligible, the habeas court also
credited evidence that supported its conclusion that
the petitioner did not have other assets that properly
would have rendered him ineligible. The habeas court
credited evidence establishing that the petitioner’s sole
asset was residential property in which he had approxi-
mately $50,000 in equity based on a valuation performed
by a bank in January, 2007.13 The habeas court credited
testimony from Brian Carlow, the Deputy Chief Public
Defender for the Office of the Chief Public Defender,
that under public defender policies and guidelines,
equity in an asset must be readily accessible to disqual-
ify an otherwise income eligible applicant. It was within
the habeas court’s province to credit Carlow’s testi-
mony over Canning’s testimony that it is the policy of
the public defender’s office that equity in real estate:
is generally not viewed as accessible to the same extent
as cash or other liquid assets; was not viewed as a
significant eligibility factor in the relevant period due
to the economic downturn; and, would not be a factor
at all if the real property was in foreclosure, barring
unusual circumstances.14 Accordingly, the habeas
court’s conclusion that there was public defender error
was not clearly erroneous.
I therefore agree with the Appellate Court that the
habeas court properly concluded that, ‘‘ ‘but for the
public defender’s erroneous 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.’ ’’ Newland v. Commis-
sioner of Correction, 151 Conn. App. 145. Accordingly,
I respectfully dissent.
1
I recognize that this supervisory directive would have the practical effect
of overruling the Appellate Court’s decisions in State v. Flemming, supra,
116 Conn. App. 482, and State v. Guitard, 61 Conn. App. 531, 538–39, 765
A.2d 30, cert. denied, 255 Conn. 952, 770 A.2d 32 (2001). In those cases, the
Appellate Court held that the trial court was not required to conduct an
evidentiary hearing when the defendant raised the issue of indigency and
that the office of the public defender is the only entity upon which a statutory
duty is imposed to investigate a claim of indigency.
2
There is a statutory mechanism to address circumstances in which it
later becomes apparent that a defendant in fact has sufficient resources to
obtain private counsel. See General Statutes § 51-298.
3
The guidelines and policies promulgated by the Public Defender Services
Commission are intended to assess whether a defendant is indigent. See
General Statutes §§ 51-296 (a) and 51-297 (a). Indigence is statutorily defined
to mean that the defendant lacks the financial resources to hire competent
counsel. See General Statutes § 51-297 (f). Therefore, if a defendant advances
a claim that the public defender’s office determined that he was not eligible
for its services but he could not afford to hire private counsel, he is effectively
asserting that the public defender determined that he is not indigent, when
in fact he is indigent. In other words, the defendant is challenging the public
defender’s decision that he is not entitled to appointed counsel.
4
Even if I were to assume that it is the petitioner’s burden to prove that
the respondent would not be, or was not, prejudiced by consideration of the
issue of public defender error, I would conclude that the record establishes
sufficient facts to make a prima facie showing.
5
To the extent that the majority contends that evidentiary deficiencies
in support of a claim of public defender error demonstrate that the petitioner
did not advance such a claim at the habeas trial, I address those matters
in part II C of this dissenting opinion.
6
It is telling that this claim of prejudice was advanced in a footnote in
the respondent’s brief, appended to a single sentence in the body of the
brief asserting that ‘‘[s]uch a shift constituted surprise to the respondent,
and much of the evidence in that regard was admitted over the respondent’s
objection.’’ I note that the respondent has not claimed on appeal that the
evidence on which the habeas court based its decision was admitted in
violation of any rule of evidence or that the respondent was in any way
impaired in responding to a claim of public defender error other than his
purported inability to assert a procedural default defense. Indeed, the respon-
dent conducted a vigorous cross-examination of the petitioner’s witnesses.
The majority notes that the respondent filed an objection to certain materi-
als appended to the petitioner’s posttrial brief regarding the state of the
housing market during the relevant period. The habeas court did not rule
on the objection, but never cited those materials in its decision. The habeas
court exclusively relied on the testimony of Brian Carlow, the Deputy Chief
Public Defender for the Office of the Chief Public Defender, as the basis
for its conclusion that the public defender’s office would have given little
weight to equity in real estate, absent unusual circumstances, given the state
of the housing market. Had the court decided to rely on the materials
appended to the petitioner’s posttrial brief, it presumably would have
explained why it properly could do so in light of the respondent’s objection.
7
The respondent does not separately challenge the cause prong, perhaps
assuming that this prong also turns on whether a presumption applies. To
the extent that the petitioner would be required to demonstrate such cause,
I have no doubt that Judge Robaina’s statement, which effectively communi-
cated that there was no judicial review of the public defender’s decision,
would constitute such cause.
8
Although these cases did not involve a claim that the denial of counsel
resulted from an improper decision by the public defender’s office, but
rather an improper trial court decision, l see no meaningful basis on which
they should be distinguished since the resulting constitutional violation is
the same, no matter its source.
9
This argument appears more directed to a claim of trial court error than
public defender error. Nonetheless, because the public defender’s error gave
rise to the denial of counsel at trial, I address it for the sake of completeness.
10
The respondent suggests that Judge Potter could have found the peti-
tioner not to be credible. I note, however, that, in addition to the fact that
Judge Potter made no such finding, the record strongly suggests a contrary
conclusion. The numerous continuances that were granted to the petitioner
would have suggested to Judge Potter that the other trial judges had credited
the petitioner’s good faith efforts to obtain private counsel. In addition,
Judge Potter’s expression of regret at having to find an implied waiver
suggests that he too credited the petitioner’s representations.
11
That being said, the petitioner could have done more to corroborate
his testimony regarding his income and his inability to refinance his property
or obtain loans on the basis of equity in the property. Nonetheless, it was
within the province of the habeas court to determine whether the petitioner’s
testimony, in and of itself, was sufficiently credible as to these matters.
12
The habeas court did not determine specifically whether the petitioner
was indigent when he first was denied public defender services in 2007. I
therefore limit my review to the period between the denial of the second
application for public defender services and the waiver canvass.
13
The habeas court made no express findings regarding the petitioner’s
testimony that none of that equity was accessible because a January, 2007
refinancing was for the maximum amount that the lender would allow.
14
At oral argument before this court, Justice Zarella questioned the respon-
dent as to whether it would have been appropriate for the trial court to
take judicial notice of the fact that the foreclosure action, which was com-
menced in June, 2008, had been dismissed in December, 2008, several months
before the waiver canvass. See Citibank, N.A. v. Newland, Superior Court,
judicial district of Windham, Docket No. CV-08-5003211-S (December 15,
2008). The respondent was apparently unaware of this fact, but nonetheless
agreed that it would have been proper for the trial court to have done so.
See Ajadi v. Commissioner of Correction, 280 Conn. 514, 522 n.13, 911 A.2d
712 (2006) (judicial notice of court records proper). I am not inclined to
consider this fact for the following reasons. First, the respondent could
have brought this fact to the habeas court’s attention in his posttrial brief,
thereby allowing the petitioner to address the significance of the dismissal.
Factors that could be relevant would be the accessibility of the equity in
light of the still existing default on the mortgage and the threat of recom-
mencement of foreclosure proceedings, which in fact later did occur. In
addition, the habeas court may have expressly credited the petitioner’s
testimony that he could not access the equity because he had refinanced
the property in 2007 for the maximum amount that the lender would allow.
See footnote 13 of this dissenting opinion. Second, Carlow’s testimony,
credited by the habeas court, provided an independent reason why the
equity in the property would not be deemed readily accessible, namely, the
economic downturn during the relevant period.