Henderson v. Commissioner of Correction

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
MARK HENDERSON v. COMMISSIONER OF
CORRECTION
(AC 39493)
Keller, Elgo and Beach, Js.
Syllabus
The petitioner, who had been convicted, on a guilty plea, of robbery in the
first degree as a persistent dangerous felony offender, sought a writ of
habeas corpus, claiming that the trial court deprived him of his right
to due process in his criminal case by, inter alia, refusing to let him
represent himself or to allow his appointed trial counsel, D, to withdraw,
and that D provided ineffective assistance. The habeas court rendered
judgment denying the habeas petition and, thereafter, denied the petition
for certification to appeal, and the petitioner appealed to this court. He
claimed, inter alia, that the habeas court, in denying his petition for
certification to appeal, erroneously determined that, by virtue of his
unconditional guilty plea, he had waived his pretrial claims of ineffective
assistance of counsel and structural error related to his right of self-
representation. Held:
1. The habeas court did not abuse its discretion in denying the petition for
certification to appeal with respect to the petitioner’s claims that the
habeas court improperly refused to permit him to represent himself, to
permit D to withdraw as counsel, to provide him with an investigator
and to recuse itself: because an unconditional guilty plea deprives a
petitioner of the ability to collaterally challenge his conviction when
the claims are based on nonjurisdictional defects that are unrelated to
the voluntariness of the plea, the petitioner was unable to demonstrate
that he did not implicitly waive the claims at issue by virtue of his
unconditional guilty plea, and the petitioner’s reliance on Hill v. Lockhart
(474 U.S. 52) for the proposition that it prohibits the application of the
waiver rule to claims of ineffective assistance of counsel following an
unconditional guilty plea was unavailing, as Hill was not inconsistent
with the application of the waiver rule, nor did it undermine the rule’s
application in the present case in which the specific claims of ineffec-
tiveness were unrelated to the validity of the unconditional guilty plea;
moreover, there was no relevant authority that directly supported the
petitioner’s argument that his claims related to self-representation and
the court’s refusal to remove D as trial counsel were not subject to the
waiver rule, as the petitioner could not demonstrate that any of the
rulings at issue affected his decision to plead guilty, and the habeas
court found that despite D’s contested representation of the petitioner,
the decision to accept the state’s plea offer and to plead guilty was
made solely by the petitioner.
2. The petitioner could not prevail on his claim that his guilty plea was not
knowing, intelligent and voluntary because D failed to remove himself
as counsel and that had D rendered effective representation or the court
permitted the petitioner to represent himself, he would have not pleaded
guilty and would have insisted on exercising his right to a trial; although
the petitioner purported to challenge the validity of his plea, his claim
on appeal was an attempt to litigate pretrial claims of ineffective repre-
sentation and rulings with respect to self-representation, and because,
if any ineffective assistance occurred, it was antecedent to the plea
hearing and known by the petitioner, it was effectively waived by the plea
of the petitioner, who failed to show that any of the alleged deficiencies
in D’s representation rendered his subsequent guilty plea invalid and
to undermine the habeas court’s determination that he had not been
compelled to plead guilty and that his decision to plead guilty was made
knowingly and voluntarily.
Argued January 18—officially released May 8, 2018
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Sferrazza, J.; judgment
denying the petition; thereafter, the court denied the
petition for certification to appeal, and the petitioner
appealed to this court. Appeal dismissed.
Heather Clark, assigned counsel, for the appellant
(petitioner).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were Kevin D. Lawlor, state’s attor-
ney, and Angela R. Macchiarulo, senior assistant state’s
attorney, for the appellee (respondent).
Opinion
KELLER, J. The petitioner, Mark Henderson, appeals
following the denial of his petition for certification to
appeal from the judgment of the habeas court denying
his amended petition for a writ of habeas corpus. The
petitioner claims that the court abused its discretion
by denying his petition for certification to appeal on
the ground that it was untimely1 and, in the alternative,
on its merits. With respect to the petitioner’s claim that
the habeas court abused its discretion in its consider-
ation of the merits of the petition, he claims that the
court erroneously determined that, by virtue of his
unconditional guilty plea, he waived his pretrial claims
of ineffective assistance of counsel and claims of struc-
tural error related to his right of self-representation.
The petitioner also claims that, absent counsel’s ineffec-
tiveness and the court’s denial of his right to self-repre-
sentation, he would not have pleaded guilty and would
have insisted on exercising his right to a trial. We con-
clude that the court properly exercised its discretion
in denying the petition for certification to appeal and,
accordingly, we dismiss the appeal.
The following procedural history underlies the pre-
sent appeal. In 2011, following the court’s acceptance
of the petitioner’s guilty plea, the petitioner was con-
victed of robbery in the first degree as a persistent
dangerous felony offender in violation of General Stat-
utes §§ 53a-134 (a) (2) and 53a-40 (a) (1) (A) (B) (iv).
The court sentenced the petitioner to serve a twenty-
year term of incarceration. The petitioner did not file
a direct appeal.
In 2013, the petitioner, acting in a self-represented
capacity, brought a petition for a writ of habeas corpus.
On September 4, 2015, the petitioner, still acting in
a self-represented capacity, brought the seven count
amended petition that the habeas court denied. The
habeas court reasonably interpreted the fifty-eight page
amended petition to allege that two of the trial judges
who made rulings in his criminal case (Keegan, J. and
Iannotti, J.) deprived the petitioner of his right to due
process by (1) refusing to permit him to represent him-
self; (2) refusing to permit appointed defense counsel,
John Drapp, to withdraw his appearance in the case;
(3) refusing the petitioner’s request to be provided with
the services of an investigator at the state’s expense;
and (4) refusing to recuse themselves from the case.
Additionally, the court interpreted the amended petition
to allege that Drapp had rendered ineffective assistance
by virtue of his (1) declining to prepare and present a
defense based on the doctrine of necessity, (2) failing
to interview certain witnesses, (3) failing to remove
himself as defense counsel, (4) failing to advise him of
the sentencing consequences of being convicted as a
persistent dangerous felony offender, and (5) failing to
advise him with respect to his right to appeal.
In his return, the respondent, the Commissioner of
Correction, contested the allegations of ineffective
assistance of counsel. With respect to the petitioner’s
claims of structural error in counts one and two of the
amended petition (alleging errors by the court during
the pretrial period), the respondent alleged in the alter-
native that the petitioner had failed to state a claim on
which relief could be granted and that the claims were
procedurally defaulted because the claims were not
raised by the petitioner prior to the habeas proceeding
and the petitioner could not demonstrate cause and
prejudice to excuse such default. In his reply, the peti-
tioner contested the allegation of procedural default,
but did not deny that he had failed to raise the claims
at issue by way of a direct appeal or set forth any cause
for such failure.
The habeas court conducted a trial, during which the
petitioner represented himself. On June 30, 2016, the
habeas court rendered judgment denying the petition.
The habeas court’s memorandum of decision provides
in relevant part as follows: ‘‘The petitioner was arrested
for the armed robbery of a bank. He readily admits
robbing the bank. He also acknowledges a lengthy crim-
inal history, including previous bank robberies, which
qualified him for treatment as a persistent dangerous
felony offender. Attorney David Egan . . . was
appointed to represent the petitioner [at his criminal
trial]. On June 14, 2011, the petitioner requested that
Attorney Egan be removed as counsel and that he be
permitted to handle his own defense. At Attorney Egan’s
request, the court appointed Paul Carty to represent
the petitioner on September 7, 2011.
‘‘The petitioner continued his quest to represent him-
self and moved for Judge Arnold to recuse himself.
Attorney Carty urged the court to order a competency
examination and, pursuant to General Statutes § 54-
56d, Judge Arnold granted that request.
‘‘On November 29, 2011, the requisite competency
proceeding was held, and Judge Arnold determined that
the petitioner was able to understand the nature of the
charges against him, the proceedings in which he was
involved, and to assist counsel in his own defense. Also,
on that date, the petitioner demanded that Attorney
Carty withdraw as his attorney. Judge Arnold denied
that request and denied a recusal motion.
‘‘On January 12, 2012, the court granted the petition-
er’s request to appear for himself and, eventually, Attor-
ney Drapp became standby counsel. The petitioner
asked for the assistance of an investigator, and Attorney
Drapp engaged his customary investigator to help the
petitioner. However, the petitioner refused to work with
that investigator.
‘‘The petitioner, on April 30, 2012, requested new
standby counsel based on a perceived conflict of inter-
est with Attorney Drapp. Judge Keegan discerned no
genuine conflict of interest, and denied the motion. Jury
selection was scheduled to begin on June 19, 2012. The
Office of the Chief Public Defender allowed special
public defender Drapp to retain a different investigator.
‘‘On June 7, 2012, Judge Keegan ruled that the peti-
tioner [had] forfeited his right to represent himself
based on his persistent misbehavior in the courtroom.
Attorney Drapp was then tasked with representing the
petitioner in full. Judge Keegan filed a written memoran-
dum [of decision] on June 21, 2012, articulating her
decision to revoke the petitioner’s opportunity to repre-
sent himself.
‘‘In response, the petitioner moved for [for Attorney
Drapp to be removed as counsel] and [for] Judge Kee-
gan’s recusal. Attorney Drapp also moved to withdraw
as counsel. These motions were denied, but the immi-
nent jury trial was postponed.
‘‘Frustrated by these decisions, the petitioner
engaged in a hunger strike. In the interim, Attorney
Drapp thoroughly familiarized himself with the evi-
dence in the case. Attorney Drapp suggested an emo-
tional distress type of defense, but the petitioner
strongly disagreed with that strategy. Instead, he
insisted that Attorney Drapp pursue the common-law
defense of necessity based on the petitioner’s claim
that he had to rob a bank to obtain sufficient funds to
relocate [the residence of] his mother. He perceived
that his past activities as a government informant placed
his and her life in danger should the targets of his
assistance seek vengeance.
‘‘Attorney Drapp tried, in vain, to convince the peti-
tioner that this doctrine was not a legitimate defense
to the armed robbery [that] he conceded he [had] perpe-
trated. The petitioner obstinately refused to recognize
this reality.’’
After the court set forth legal principles related to
the common-law defense of necessity and duress, it
concluded that such defenses were not available to the
petitioner. The court stated: ‘‘[N]o one demanded that
the petitioner rob a bank under threat of an imminent
use of force against him or his mother. The lack of
financial wherewithal to extricate oneself from a vague
and generalized fear of possible harm in the unspecified
future simply provides no excuse to commit bank rob-
bery under our system of criminal justice. As ardently
as the petitioner may wish it were otherwise, Attorney
Drapp’s refusal to pursue such a fanciful defense was
ethically and professionally mandated.
‘‘The petitioner’s criminal trial was rescheduled to
begin on April 30, 2013. A second competency examina-
tion was ordered, and the hearing resulting from that
examination took place on April 12, 2013. Judge Iannotti
found [that] the petitioner [was] competent to stand
trial.
‘‘On April 29, 2013, the petitioner agreed to plead
guilty to robbery in the first degree as a persistent
dangerous felony offender in exchange for the prosecu-
tor’s nolle of other charges and a recommended ceiling
of twenty-five years to serve and a floor of the manda-
tory minimum ten year sentence. On July 16, 2013, Judge
Iannotti imposed the twenty year term noted above.’’
The court proceeded in its analysis to conclude that
‘‘[t]he petitioner’s claims that pertain to alleged impro-
prieties by the judicial officers or Attorney Drapp that
are unrelated to the validity of his guilty plea on April
29, 2013, were forfeited by virtue of that plea of guilty.’’
The court engaged in a significant legal analysis of the
waiver issue, observing that ‘‘[t]he general rule is that
a guilty plea waives all nonjurisdictional defects ante-
cedent to the entering of the plea, including defects
asserting constitutional deprivations . . . . Only
defects which implicate the subject matter jurisdiction
of the court survive a later valid guilty plea, and defects
asserting a lack of personal jurisdiction over an accused
are waived by a subsequent guilty plea. . . . This
waiver rule applies equally to matters raised by way of
direct appeal or by collateral attack, such as through
a petition for habeas corpus relief . . . . A claim of
ineffectiveness of counsel at an antecedent proceeding
is the kind of defect ordinarily waived by a later guilty
plea.’’ (Citations omitted.) The court observed as a gen-
eral rule that, subject to the limited exception codified
in General Statutes § 54-94a, ‘‘a later guilty plea washes
away nonjurisdictional, pre-plea errors . . . .’’
The court went on to conclude: ‘‘Consequently, any
alleged judicial errors regarding self-representation,
recusal, access to investigators, and removal of
appointed counsel were waived by the entry of the
petitioner’s guilty plea on April 29, 2013. Similarly, any
claims of ineffective assistance of Attorney Drapp con-
cerning lack of preparation, refusal to interview certain
witnesses or to obtain certain documents, conflicts of
interest, and the refusal to pursue a necessity defense
were also forfeited by that plea.
‘‘Therefore, the only remaining ineffectiveness claims
upon which habeas corpus relief can be based center
on Attorney Drapp’s advice and representation sur-
rounding the petitioner’s guilty plea. The petitioner has
never alleged that Attorney Drapp failed to apprise him
of the elements of robbery in the first degree and being
a persistent dangerous felony offender. Nor has he
averred that Attorney Drapp misinformed him as to the
trial rights he gave up by pleading guilty nor as to the
terms of the plea agreement. Also, a factual basis for
the crime and status was conceded and obvious.
‘‘The petitioner also makes no claim that Judge Ian-
notti’s plea canvass [was legally deficient] . . . . Nor
does he contend that he was misinformed as to the
maximum and mandatory minimum imposable sen-
tence by the judge or Attorney Drapp. Except for
adverse immigration consequences, a trial court need
not inform a criminal defendant of all possible ramifica-
tions which may flow from a plea of guilty . . . .
‘‘The particular deficiencies that the petitioner does
assert are that his hunger strikes so affected his thought
processes that he was unable to intelligently, know-
ingly, and voluntarily decide to plead guilty and forgo
a jury trial. He further avers that this debilitation caused
him to succumb to the coercion exercised by Attorney
Drapp. The court finds this allegation unproven.
‘‘As mentioned earlier, the court ordered a second
competency evaluation of the petitioner shortly before
he entered his guilty plea. On April 12, 2013, Dr. Joseph
Chien, a fellow in psychiatry at Yale University, testified
that the petitioner understood the nature and attendant
sentence for each crime of which he was accused; [that
he] accurately recounted the roles of the various court-
room participants; and that he had a comprehensive
knowledge of the legal proceedings in which he was
enmeshed. Dr. Chien further opined that the petitioner
was able to discuss possible plea dispositions rationally
and even expressed a willingness to plead guilty in
exchange for a ten year prison sentence. Dr. Chien
also felt, however, that the petitioner’s deep distrust of
attorneys, including Attorney Drapp, disabled him from
meaningfully assisting counsel. The doctor acknowl-
edged that the question of the petitioner’s capacity to
work with an attorney was a ‘close call.’ After the hear-
ing, Judge Iannotti ruled that the petitioner was legally
competent to stand trial.
‘‘Dr. Chien had reviewed the petitioner’s medical
records kept by the Department of Correction which
review encompassed the periods of hunger strike. The
doctor related that, during these events, the petitioner
continued to drink water and protein drinks and had
only lost twenty pounds over his four month abstinence.
‘‘Attorney Drapp testified at the habeas hearing. He
recalled that the petitioner, if convicted after trial, faced
a maximum, effective sentence equivalent to life impris-
onment. The petitioner concurred that he was aware
of this exposure. Attorney Drapp stated that he strongly
recommended that the petitioner accept the state’s
offer, however, he never coerced or badgered the peti-
tioner into changing his plea. The court finds Attorney
Drapp’s testimony credible on this point.
‘‘Dr. James Elderkin, a specialist in internal medicine
at a facility that treats inmates at the University of
Connecticut Health Center, monitored the petitioner’s
medical condition during the two hunger strikes and
for some time after his guilty plea proceeding. In his
assessment, the petitioner’s hunger strike created no
medical condition that had impinged on his ability to
participate in that proceeding. He observed that the
petitioner exhibited no altered mental state impairing
his comprehension skills. Had he seen evidence of such
impairment, Dr. Elderkin would have intervened by pro-
hibiting the petitioner’s trip to court.
‘‘Neither party introduced a transcript of the guilty
plea hearing of April 29, 2013. However, Judge Iannotti
rendered findings that were recorded as docket entries
by the clerk. Judge Iannotti decided that the petitioner’s
guilty pleas ‘were . . . given freely and knowingly with
[the] advice of counsel.’ In the absence of credible evi-
dence to the contrary, this court determines that the
petitioner’s restrictive diet did not diminish his ability
to comprehend the terms of the plea agreement; the
trial rights that he was yielding by pleading guilty; the
elements and maximum and minimum mandatory sen-
tences of robbery [in the] first degree as a persistent
dangerous felony offender; and the advice [that] Attor-
ney Drapp gave him. The petitioner has failed to meet
his burden of proving, by a preponderance of the evi-
dence, that his guilty plea was unknowing, involuntary,
or the subject of coercion by Attorney Drapp.
‘‘[The petitioner’s] assertion that he was ‘forced’ to
plead guilty appears to be a metaphorical use of that
word rather than a literal or legal one. Unquestionably,
the petitioner faced unenviable circumstances and lim-
ited options. The evidence against him overwhelmingly
and undisputedly demonstrated that he robbed bank
employees in excess of $3000 while armed with an
operable firearm. His terrible and lengthy history of
criminal convictions and prison sentences made the
prospect of spending the remainder of his life behind
bars quite likely if convicted, once again, for bank rob-
bery. The pressure to accept the state’s very reasonable
proposal created by the weight of the above realities
did not invalidate the guilty plea or render Attorney
Drapp’s advice to do so deficient.
‘‘The petitioner also argues that his hearing impair-
ment ought to justify [the] overturning of his conviction.
The court also rejects this contention. A review of the
transcripts of the petitioner’s many court appearances
belies this claim. He exhibited little difficulty under-
standing the dialogue as it occurred. The doctors that
interacted with him never found his diminished hearing
to be so manifest as to require extended comment.
Attorney Drapp observed no impediments in the peti-
tioner’s ability to understand and respond to oral com-
munications. Although the petitioner complained that
his hearing aid malfunctioned occasionally at the
habeas hearing, the court discerned no instances in
which the petitioner’s hearing deficit significantly
impeded his ability to comprehend what was being dis-
cussed in court. The court is very confident that the
petitioner’s hearing problem played no role in his volun-
tary and knowing decision to plead guilty.
‘‘The final issue the court must address concerns the
petitioner’s claim that Attorney Drapp never disclosed
to him that he could appeal from the conviction that
resulted from his guilty plea. However, unless the peti-
tioner expressly inquired about taking an appeal or
unless Attorney Drapp had reason to believe that a
rational defendant in the petitioner’s situation would
want to appeal, Attorney Drapp had no ‘constitutionally-
imposed duty to consult with the [petitioner] about an
appeal’ . . . . Neither predicate circumstance existed
in the present case. Therefore, the petitioner cannot
prevail as to this specification of ineffective assistance.’’
(Citation omitted.)
On July 12, 2016, twelve days following the court’s
decision denying the petition for a writ of habeas cor-
pus, the petitioner filed a petition for certification to
appeal; see General Statutes § 52-470 (g); and an appli-
cation for waiver of fees, costs, and expenses and
appointment of counsel on appeal (fee waiver applica-
tion). See General Statutes § 52-259b. In his petition for
certification to appeal, the petitioner stated that the
grounds for his request for certification were set forth
in his fee waiver application. In the fee waiver applica-
tion, the petitioner stated the following ground for his
appeal: ‘‘[W]hether the habeas court abused its discre-
tion by failing to address ten questions of law which
[the] petitioner distinctly raised and supported by evi-
dence within [the] petitioner’s pretrial brief filed on
May 23, 2016. And again raised during and before [the]
petitioner’s closing argument at his June 6-8 habeas
trial.’’
On July 19, 2016, the court denied the petition for
certification to appeal. On the court’s order, it noted:
‘‘Not filed within time period and denied even if it was.’’
With respect to the fee waiver application, on July 19,
2016, the court found the petitioner to be indigent and
granted the application to the extent that it waived all
appellate fees and costs and ordered the state to pay
all necessary expenses. The court, noting the petition-
er’s self-represented status, denied the petitioner’s
request for appellate counsel.
On August 4, 2016, the petitioner filed a motion for
reconsideration of the denial of his petition for certifica-
tion to appeal. In that motion, the petitioner challenged
only the court’s determination that the petition had
been untimely filed. On August 8, 2016, the court denied
the motion for reconsideration.
On August 4, 2016, the petitioner filed a motion for
appointment of appellate counsel. In that motion, the
petitioner referred to the fact that he intended to appeal
from the court’s denial of certification to appeal and
that, in its ruling of July 19, 2016, on his original fee
waiver application, the court found him to be indigent.
In addition to his motion for appellate counsel, the
petitioner included an affidavit in which he set forth
numerous grounds that he intended to raise on appeal.
These grounds included (1) whether the habeas court
abused its discretion in denying the petition for certifi-
cation to appeal ‘‘to address ten questions of law dis-
tinctly raised and supported by evidence within [the]
petitioner’s pretrial brief . . . and raised during [and]
before [the] petitioner’s closing argument at his . . .
habeas trial’’; (2) whether Judge Keegan committed
‘‘pretrial structural errors’’; (3) whether Judge Iannotti
committed ‘‘cumulative pretrial structural errors’’; (4)
whether Drapp rendered ineffective assistance; (5)
whether he could ‘‘establish cause of any procedural
default and prejudice, sufficient to excuse the default
and permit review of the claim for the first time in this
habeas proceeding’’; (6) whether ‘‘the trial court . . .
[stripped him] of his right of self-representation’’; (7)
whether Judge Iannotti erroneously failed to inquire
into his mental state during the pretrial proceedings;
(8) whether the habeas court violated his rights to due
process and access to the court by its ‘‘refusal to issue
a subpoena application’’; (9) whether the habeas court
erroneously failed to admit forty-two exhibits; and (10)
whether the habeas court erroneously evaluated the
issues before it by ‘‘solely focusing on [the] petitioner’s
choice of defense theory.’’ On August 8, 2016, the court
granted the motion for appellate counsel. This appeal
followed.
Before discussing the merits of the claims raised on
appeal, we must consider whether the petitioner raised
the claims in his petition for certification to appeal
and, thus, properly preserved them for appellate review.
‘‘[A]n appeal following the denial of a petition for certifi-
cation to appeal from the judgment denying a petition
for a writ of habeas corpus is not the appellate equiva-
lent of a direct appeal from a criminal conviction. Our
limited task as a reviewing court is to determine
whether the habeas court abused its discretion in con-
cluding that the petitioner’s appeal is frivolous. Thus,
we review whether the issues for which certification
to appeal was sought are debatable among jurists of
reason, a court could resolve the issues differently or
the issues are adequate to deserve encouragement to
proceed further. . . . Because it is impossible to
review an exercise of discretion that did not occur,
we are confined to reviewing only those issues which
were brought to the habeas court’s attention in the
petition for certification to appeal. . . .
‘‘This court has determined that a petitioner cannot
demonstrate that the habeas court abused its discretion
in denying a petition for certification to appeal if the
issues that the petitioner later raises on appeal were
never presented to, or decided by, the habeas court.
. . . Under such circumstances, a review of the peti-
tioner’s claims would amount to an ambuscade of the
[habeas] judge.’’ (Citations omitted; emphasis added;
internal quotation marks omitted.) Tutson v. Commis-
sioner of Correction, 144 Conn. App. 203, 216–17, 72
A.3d 1162, cert. denied, 310 Conn. 928, 78 A.3d 145(2013).
The petitioner’s petition for certification refers to the
grounds for appeal set forth in the fee waiver applica-
tion. As was previously set forth in this opinion, the
fee waiver application refers to the habeas court’s ‘‘fail[-
ure] to address ten questions of law which [the] peti-
tioner distinctly raised and supported by evidence
within [the] petitioner’s pretrial brief filed on May 23,
2016. And again raised during and before [the] petition-
er’s closing argument at his June 6-8 habeas trial.’’
The fee waiver application is not a model of clarity.
The petitioner filed the petition for certification and
the fee waiver application in a self-represented capac-
ity. ‘‘[I]t is the established policy of the Connecticut
courts to be solicitous of pro se litigants and when it
does not interfere with the rights of other parties to
construe the rules of practice liberally in favor of the
pro se party. . . . The modern trend . . . is to con-
strue pleadings broadly and realistically, rather than
narrowly and technically. . . . The courts adhere to
this rule to ensure that pro se litigants receive a full
and fair opportunity to be heard, regardless of their
lack of legal education and experience. . . . This rule
of construction has limits, however. Although we allow
pro se litigants some latitude, the right of self-represen-
tation provides no attendant license not to comply with
relevant rules of procedural and substantive law. . . .
A habeas court does not have the discretion to look
beyond the pleadings and trial evidence to decide claims
not raised. . . . In addition, while courts should not
construe pleadings narrowly and technically, courts
also cannot contort pleadings in such a way so as to
strain the bounds of rational comprehension.’’ (Cita-
tions omitted; internal quotation marks omitted.) Oli-
phant v. Commissioner of Correction, 274 Conn. 563,
569–70, 877 A.2d 761 (2005); see also Gaynor v. Hi–Tech
Homes, 149 Conn. App. 267, 278–79 n.11, 89 A.3d 373(2014); Mourning v. Commissioner of Correction, 120
Conn. App. 612, 624–25, 992 A.2d 1169, cert. denied,
297 Conn. 919, 996 A.2d 1192 (2010).
The respondent does not claim that the petitioner
failed to preserve any aspect of the present appeal from
the court’s judgment denying his petition for certifica-
tion to appeal. Although the fee waiver application does
not set forth grounds for appeal that are as clear,
exhaustive, or precise as those which may have been
set forth by a member of the bar or a person with legal
training and expertise, it sufficiently alerted the court
to the fact that the petition was based on the court’s
failure to address several grounds that were raised and
argued before the habeas court. Read broadly and real-
istically, this pleading sufficiently conveyed that certifi-
cation was sought with respect to the claims that the
habeas court deemed to have been waived by the peti-
tioner by virtue of his guilty plea. Additionally, we
observe that, although it technically was not incorpo-
rated by reference as a part of the petition for certifica-
tion, the petitioner’s motion for appointment of
appellate counsel, which was filed on the same day that
the petitioner filed his motion for reconsideration of
the denial of his petition for certification, sufficiently
set forth the claims raised in this appeal. Thus, we may
presume that, by the time the court considered and
denied the motion for reconsideration, it was aware
that the petitioner intended to raise the claims presently
before us. Accordingly, although the issue of reviewabil-
ity certainly is debatable, we conclude that the claims
before us were preserved for appellate review.
We now turn to our familiar standard of review.
‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the dismissal of his petition for habeas corpus
only by satisfying the two-pronged test enunciated by
our Supreme Court in Simms v. Warden, 229 Conn.
178, 640 A.2d 601 (1994), and adopted in Simms v.
Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First,
he must demonstrate that the denial of his petition for
certification constituted an abuse of discretion. . . .
Second, if the petitioner can show an abuse of discre-
tion, he must then prove that the decision of the habeas
court should be reversed on the merits. . . .
‘‘To prove an abuse of discretion, the petitioner must
demonstrate that the [resolution of the underlying claim
involves issues that] are debatable among jurists of
reason; that a court could resolve the issues [in a differ-
ent manner]; or that the questions are adequate to
deserve encouragement to proceed further. . . . In
determining whether the habeas court abused its discre-
tion in denying the petitioner’s request for certification,
we necessarily must consider the merits of the petition-
er’s underlying claims to determine whether the habeas
court reasonably determined that the petitioner’s
appeal was frivolous. . . .
‘‘In evaluating the merits of the underlying claims on
which the petitioner relies in the present appeal, we
observe that [when] the legal conclusions of the court
are challenged, [the reviewing court] must determine
whether they are legally and logically correct . . . and
whether they find support in the facts that appear in
the record. . . . To the extent that factual findings are
challenged, this court cannot disturb the underlying
facts found by the habeas court unless they are clearly
erroneous . . . . [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.’’ (Citation omitted; internal quotation
marks omitted.) Diaz v. Commissioner of Correction,
174 Conn. App. 776, 785–86, 166 A.3d 815, cert. denied,
327 Conn. 957, 172 A.3d 204 (2017).
I
First, we address the petitioner’s claim that the court
abused its discretion in denying certification with
respect to whether he had waived several claims that
it had determined to be unrelated to his guilty plea.
Specifically, the petitioner alleged that, prior to the time
of the plea, the trial court improperly refused to permit
him to represent himself, refused to permit Drapp to
withdraw as counsel, refused to provide him with an
investigator, and refused to recuse itself. Additionally,
the petitioner alleged that Drapp rendered ineffective
assistance by virtue of his failure to pursue a necessity
defense and in otherwise preparing his defense. As set
forth previously in this opinion, the court determined
that the petitioner waived these claims by virtue of his
guilty plea of April 29, 2013. We conclude that the court’s
analysis of the waiver issue was legally sound and that
it did not abuse its discretion by denying certification
with respect to these issues.
The United States Supreme Court recently discussed
some of the consequences of a valid guilty plea, as
follows: ‘‘[A] valid guilty plea foregoes not only a fair
trial, but also other accompanying constitutional guar-
antees. . . . While those simultaneously relinquished
rights include the privilege against compulsory self-
incrimination, the jury trial right, and the right to con-
front accusers . . . they do not include a waiver of
the privileges which exist beyond the confines of the
trial. . . .
‘‘A valid guilty plea also renders irrelevant—and
thereby prevents the defendant from appealing—the
constitutionality of case-related government conduct
that takes place before the plea is entered. . . .
‘‘Finally, a valid guilty plea relinquishes any claim
that would contradict the admissions necessarily made
upon entry of a valid plea of guilty.’’ (Citations omitted;
internal quotation marks omitted.) Class v. United
States, U.S. , 138 S. Ct. 798, 805, 200 L. Ed. 2d 37 (2018).
Our Supreme Court has discussed the effect of an
unconditional guilty plea as follows: ‘‘It is well estab-
lished that an unconditional plea of guilty, made intelli-
gently and voluntarily, operates as a waiver of all
nonjurisdictional defects and bars the later assertion
of constitutional challenges to pretrial proceedings.
. . . In general, the only allowable challenges after a
plea are those relating either to the voluntary and intelli-
gent nature of the plea or the exercise of the trial court’s
jurisdiction.’’ (Citation omitted.) State v. Johnson, 253
Conn. 1, 80, 751 A.2d 298 (2000); see also State v. Han-
son, 117 Conn. App. 436, 456, 979 A.2d 576 (2009), cert.
denied, 295 Conn. 907, 989 A.2d 604, cert. denied, 562
U.S. 986, 131 S. Ct. 425, 178 L. Ed. 2d 331 (2010). ‘‘A
plea, whether conditional or unconditional, does not
preclude review of ‘jurisdictional defects.’ Those
defects have been characterized as those which would
prevent a trial from occurring in the first place. . . .
Thus, after an unqualified plea of guilty or nolo conten-
dere, a defendant may challenge his conviction if the
conviction is in violation of the double jeopardy clause
. . . if the court lacks subject matter jurisdiction over
the case . . . or if the statute under which the defen-
dant is charged is unconstitutional.’’ (Citations omit-
ted.) State v. Madera, 198 Conn. 92, 98 n.6, 503 A.2d
136 (1985).
‘‘Where . . . a guilty plea is entered on the advice
of counsel, the plea constitutes an admission of guilt
and a waiver of nonjurisdictional defects and claims,
including federal constitutional claims, which might
otherwise be raised by way of defense, appeal or collat-
eral attack. . . . This waiver rule means that a claim
of the ineffective assistance of counsel due to an alleged
conflict of interest, standing alone, is not sufficient to
call the validity of a guilty plea and the judgment of
conviction based thereon into question. . . . Of
course, a guilty plea does not constitute a waiver of a
claim that the plea itself was rendered involuntary and
unintelligent as a result of a violation of an accused’s
fundamental constitutional rights. . . . Thus, an alle-
gation of the ineffective assistance of counsel is a factor
to be taken into consideration in determining whether
a guilty plea was voluntary and intelligent, but for the
plea and the judgment of conviction based thereon to
be overturned on this ground, it must be demonstrated
that there was such an interrelationship between the
ineffective assistance of counsel and the plea that it
can be said the plea was not voluntary and intelligent
because of the ineffective assistance.’’ (Citations omit-
ted.) Dukes v. Warden, 161 Conn. 337, 343–44, 288 A.2d
58 (1971) aff’d, 406 U.S. 250, 92 S. Ct. 1551, 32 L. Ed.
2d 45 (1972); see also Tollett v. Henderson, 411 U.S.
258, 266–67, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973)
(focus of federal habeas inquiry is on nature of advice
of counsel and voluntariness of guilty plea, not exis-
tence as such of antecedent constitutional infirmity).
In light of the foregoing authority, the petitioner is
unable to demonstrate that he did not implicitly waive
the claims at issue by virtue of his unconditional guilty
plea.2 The petitioner suggests that we should interpret
Hill v. Lockhart, 474 U.S. 52, 58–59, 106 S. Ct. 366, 88
L. Ed. 2d 203 (1985), such that it prohibits the applica-
tion of the waiver rule to claims of ineffective assistance
of counsel following an unconditional guilty plea. Hill
defines a petitioner’s burden of proof with respect to
ineffective assistance claims in the guilty plea context,
thereby requiring a petitioner to demonstrate that but
for counsel’s errors, he would not have entered the
plea. Id., 59. Hill is not inconsistent with the application
of the waiver rule, nor do we interpret it to have under-
mined the rule’s application in a case such as the present
in which the specific claims of ineffectiveness are unre-
lated to the validity of the unconditional guilty plea.
Likewise, we are not persuaded by the petitioner’s
argument that his claims related to self-representation
and the court’s refusal to remove Drapp as his counsel,
which he considers ‘‘structural errors’’ requiring auto-
matic reversal, were not subject to the waiver rule. The
petitioner urges us to ‘‘make clear that a petitioner
cannot waive such a claim by pleading guilty’’ and that
such a claim properly may be raised in a habeas pro-
ceeding following an unconditional guilty plea. The peti-
tioner, however, acknowledges that there is no relevant
authority that directly supports this argument. As stated
previously in this opinion, our waiver jurisprudence
reflects that an unconditional guilty plea deprives a
petitioner of the ability to collaterally challenge his
conviction when the claims are based on nonjurisdic-
tional defects that are unrelated to the voluntariness
of his plea. We see no reason why this broad class
of claims does not encompass the petitioner’s claims
related to self-representation. The touchstone of the
waiver inquiry is whether the claim implicates the valid-
ity of the plea. In light of the court’s unchallenged fac-
tual findings, the petitioner cannot argue, let alone
demonstrate, that any of the rulings at issue affected
his decision to plead guilty. The court found that despite
Drapp’s contested representation of the petitioner, the
decision to accept the state’s plea offer and to plead
guilty was made solely by the petitioner.3
II
Next, the petitioner claims that, if trial counsel had
rendered effective representation or the court had per-
mitted him to represent himself, he would not have
pleaded guilty and would have insisted on exercising
his right to a trial. Essentially, the petitioner argues
that his guilty plea was not knowing, intelligent, and
voluntary because Drapp failed to remove himself as
counsel, failed to interview certain witnesses, and failed
to prepare and present a necessity defense. We disagree.
As the court observed, the petitioner essentially
raised two claims with respect to the representation
afforded him surrounding his guilty plea. The first claim
was that his plea was not intelligently, knowingly, and
voluntarily made because Drapp coerced him to plead
guilty. The second claim is that Drapp failed to advise
him that he had the ability to appeal from the judgment
of conviction that resulted from his guilty plea. The
petitioner does not challenge the court’s decision as it
relates to the court’s resolution of these claims. Rather,
he argues before us, in a conclusory manner, that
defense counsel’s ineffectiveness related to pretrial
matters effectively undermined the validity of his plea.
‘‘The sixth amendment to the United States constitu-
tion, made applicable to the states through the due
process clause of the fourteenth amendment, affords
criminal defendants the right to effective assistance of
counsel. . . . Although a challenge to the facts found
by the habeas court is reviewed under the clearly erro-
neous standard, whether those facts constituted a viola-
tion of the petitioner’s rights under the sixth
amendment is a mixed determination of law and fact
that requires the application of legal principles to the
historical facts of this case . . . . As such, that ques-
tion requires plenary review by this court unfettered
by the clearly erroneous standard. . . .
‘‘It is well established that the failure to adequately
advise a client regarding a plea offer from the state
can form the basis for a sixth amendment claim of
ineffective assistance of counsel. The United States
Supreme Court, long before its recent decisions in Mis-
souri v. Frye, 566 U.S. 134, 132 S. Ct. 1399, 182 L. Ed.
2d 379 (2012), and Lafler v. Cooper, 566 U.S. 156, 132
S. Ct. 1376, 182 L. Ed. 2d 398 (2012), recognized that
the two part test articulated in Strickland v. Washing-
ton, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
applies to ineffective assistance of counsel claims aris-
ing out of the plea negotiation stage. . . .
‘‘Finally, we recite the familiar test that governs
whether a petitioner’s constitutional right to the effec-
tive assistance of counsel has been violated. To succeed
on a claim of ineffective assistance of counsel, a habeas
petitioner must satisfy the two-pronged test articulated
in Strickland v. Washington, [id, 687] . . . . The peti-
tioner has the burden to establish that (1) counsel’s
representation fell below an objective standard of rea-
sonableness, and (2) counsel’s deficient performance
prejudiced the defense because there was a reasonable
probability that the outcome of the proceedings would
have been different had it not been for the deficient
performance. . . . To satisfy the performance prong,
a claimant must demonstrate that counsel made errors
so serious that counsel was not functioning as the coun-
sel guaranteed . . . by the [s]ixth [a]mendment. . . .
It is not enough for the petitioner to simply prove the
underlying facts that his attorney failed to take a certain
action. Rather, the petitioner must prove, by a prepon-
derance of the evidence, that his counsel’s acts or omis-
sions were so serious that counsel was not functioning
as the counsel guaranteed by the sixth amendment, and
as a result, he was deprived of a fair trial. . . .
‘‘For claims of ineffective assistance of counsel aris-
ing out of the plea process, the United States Supreme
Court has modified the second prong of the Strickland
test to require that the petitioner produce evidence that
there is a reasonable probability that, but for counsel’s
errors, [the petitioner] would not have pleaded guilty
and would have insisted on going to trial. . . . An
ineffective assistance of counsel claim will succeed only
if both prongs [of Strickland] are satisfied. . . . It is
axiomatic that courts may decide against a petitioner
on either prong [of the Strickland test], whichever is
easier.’’ (Citations omitted; emphasis omitted; internal
quotation marks omitted.) Duncan v. Commissioner
of Correction, 171 Conn. App. 635, 646–48, 157 A.3d
1169, cert. denied, 325 Conn. 923, 159 A.3d 1172 (2017).
Essentially, the petitioner argues that, absent the
alleged flaws in Drapp’s pretrial representation (related
to his failure to remove himself as counsel, failure to
interview certain witnesses, and failure to prepare and
present a necessity defense) he would not have pleaded
guilty. With respect to proving prejudice, the petitioner
argues that he ‘‘consistently and unequivocally asserted
his right to self-representation so that he could present
evidence on a necessity defense to the jury. . . . Preju-
dice must be presumed related to the right of self-
representation. . . . Further, absent the revocation of
that right, it cannot be disputed that the petitioner
would not have pleaded guilty and would have insisted
on going to trial.’’ (Internal quotation marks omitted.)
Although the petitioner purports to challenge the
validity of his plea, his claim on appeal is an attempt
to litigate pretrial claims of ineffective representation
and rulings with respect to self-representation. ‘‘Under
[Dukes v. Warden, supra, 161 Conn. 344], the entry
of a guilty plea waives future ineffective assistance of
counsel claims unless the ineffective assistance is so
intertwined with the guilty plea that the plea cannot be
considered knowing, voluntary and intelligent.’’
Mincewicz v. Commissioner of Correction, 162 Conn.
App. 109, 116, 129 A.3d 791 (2015). The petitioner failed
to show that any of the alleged deficiencies in Drapp’s
representation rendered his subsequent guilty plea
invalid. If any ineffective assistance occurred, it was
antecedent to the plea hearing and known by the peti-
tioner and, as such, was effectively waived by the plea.
The court made several findings of fact related to the
plea. It is noteworthy that the court unambiguously
rejected any claim that the petitioner had been com-
pelled to plead guilty and found that the decision was
made by him knowingly and voluntarily. The petitioner
has failed to undermine that determination.
For all of the foregoing reasons, we conclude that
the petitioner has failed to demonstrate that the court
abused its discretion by denying his petition for certifi-
cation to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
In light of our determination that the court properly denied certification
in its consideration of the merits of the petitioner’s claims, we do not reach
the merits of his claim that the court improperly denied certification because
his petition for certification was untimely.
2
As is reflected in our discussion of relevant authority, courts generally
conclude that, following an unconditional guilty plea, a defendant has
‘‘waived’’ claims that are unrelated to the validity of the plea. ‘‘Waiver is an
intentional relinquishment or abandonment of a known right or privilege.
. . . It involves the idea of assent, and assent is an act of understanding.’’
(Internal quotation marks omitted.) State v. Torres, 175 Conn. App. 138,
146, 167 A.3d 365, cert. denied, 327 Conn. 958, 172 A.3d 204 (2017), cert.
denied, U.S. , 138 S. Ct. 1303, L. Ed. 2d (2018). In light of the fact that
the waiver rule applies by operation of law rather than by any conduct or
representation of the defendant beyond his solemn admission of guilt, it
may, however, be more precise to refer to the issue as involving implicit
waiver or a forfeiture of a defendant’s right to raise certain claims as a
consequence of a guilty plea. ‘‘Implicit waiver arises from an inference that
the defendant knowingly and voluntarily relinquished the right in ques-
tion.’’(Internal quotation marks omitted.) Id.3
Because we conclude that the waiver rule applies to the petitioner’s
claims, we do not address any of his arguments with respect to procedural
default or the cause and prejudice standard.