Argued March 16, 2015
Information charging the defendant with violation of probation, brought to the Superior Court in the judicial district of Litchfield and tried to the court, Hon. Charles D. Gill, judge trial referee; judgment revoking the defendant's probation, from which the defendant appealed to this court.
The defendant appealed to this court from the judgment of the trial court finding him in violation of probation following his arrest for failing to report to the Office of Adult Probation on three separate occasions, as required under the conditions of his probation. At the probation violation hearing, the defendant was initially represented by counsel, but his counsel subsequently filed a motion to withdraw his appearance in the case, citing an irretrievable breakdown in the attorney-client relationship. After the defendant indicated a desire to represent himself, the trial court canvassed him, but the defendant then indicated that counsel could continue to represent him, and the state began its case by calling the defendant's probation officer. When counsel began to cross-examine the defendant's probation officer, the defendant interrupted him and asserted his right to self-representation. The trial court, without conducting any further canvass of the defendant, stated that he could proceed with standby counsel. The defendant completed the cross-examination, the state then rested and the defendant presented his case. After the conclusion of the evidentiary phase of the hearing, the court made a finding that the defendant had violated his probation. The court then proceeded to the disposition phase of the hearing, at which point the defendant requested that counsel be reappointed for the purpose of presenting argument. After the state and counsel presented their arguments, the trial court ordered revocation of the defendant's probation, and this appeal followed. Held that the trial court abused its discretion in permitting the defendant to waive his right to counsel without establishing that his waiver was made knowingly and intelligently, that court having failed to establish that the defendant understood the range of permissible punishments to which he could be exposed if he was found to be in violation of his probation: that court's canvass was not a thorough inquiry sufficient to inform the defendant of his rights prior to waiver, as the court never advised him that, if found in violation of probation, he could be sentenced to imprisonment for the remainder of his original sentence or asked questions that would have created a record that the defendant understood the nature of the charges or proceedings, the defendant expressly stated that he did not appreciate the nature of the proceedings, and the court never explained the range of permissible punishments that the defendant faced for violation of probation; furthermore, the state's claim that the defendant nevertheless obtained knowledge of the range of punishments from three sources prior to waiving his right to counsel was unavailing, as the trial court's judicial notice of the original sentence did not adequately inform the defendant of his exposure and the possible penalties he faced if he was found to be in violation of his probation, the conditions of probation form signed by the defendant, which notified him of the possible punishments when he signed it, did not establish that he was aware of that information when he later chose to waive counsel, and it could not be presumed that the defendant was notified of the range of permissible punishments by way of counsel's motion to withdraw.
Cameron R. Dorman, assigned counsel, for the appellant (defendant).
Jonathan M. Sousa, special deputy assistant state's attorney, with whom, on the brief, were David S. Shepack, state's attorney, and David R. Shannon, senior assistant state's attorney, for the appellee (state).
DiPentima, C. J., and Gruendel and Sheldon, Js.
[158 Conn.App. 232] The defendant, Alton Woods, appeals from the judgment of the trial court finding him in [158 Conn.App. 233] violation of probation pursuant to General Statutes § 53a-32. On appeal, the defendant claims he was deprived of his right to counsel because the trial court failed to establish that his waiver of that right was made knowingly and intelligently. Specifically, the defendant argues that the court improperly accepted his waiver of counsel without first establishing, either through the record or by way of a proper canvass, that he understood the range of permissible punishments to which he could be exposed if he was found to be in violation of probation. We agree, and accordingly, reverse the judgment of the trial court.
The following facts and procedural history are relevant to our resolution of this appeal. On April 25, 2012, the defendant was found guilty of one count of possession of narcotics in violation of General Statutes § 21a-279 (a) and one count of failure to appear in the first degree in violation of General Statutes § 53a-172. He was sentenced to a total effective term of ten years of incarceration, suspended after one year, and three years of probation. On June 26, 2013, the defendant was released from prison and placed on probation. On July 1, 2013, the defendant signed a " [c]onditions of [p]robation" form, which explained the terms of his probation. Among the standard conditions of probation was the requirement that the defendant " [r]eport as the Probation Officer [directs] . . . [and] [k]eep the Probation Officer informed of where you are, tell your probation officer immediately about any change to your legal name, address, telephone number, cell phone number . . . and allow the Officer to visit you as he or she requires." In addition, a special condition was imposed, requiring the defendant to submit to " [s]ubstance [a]buse [e]valuation[s] and [t]reatment as deemed necessary by [the] Office of Adult Probation."
On August 8, 2013, an arrest warrant was issued for the defendant after he allegedly failed to report to the [158 Conn.App. 234] Office of Adult Probation on three separate occasions. The defendant's probation officer alleged in the application for the arrest warrant that he had visited the defendant's reported residence and had spoken with the defendant's mother, who stated that the defendant did not reside at that address. The defendant subsequently was arrested and a violation of probation hearing was scheduled.
On August 22, 2013, Attorney John Cizik, from the Public Defender's Office, was appointed as counsel for the defendant. At the probation hearing, Cizik noted that he had " advised" the defendant and then entered a denial on his behalf. The trial court also granted the defendant's request to continue the case to September 20, 2013.
Over the next four months, the case was continued four more times. On October 29, 2013, the court noted that the state had made a plea offer and that it would allow the defendant a period of time to consider whether to accept or reject it. On December 17, 2013, Cizik informed the court that the defendant intended to reject the plea offer and request a hearing. The court accepted the rejection on the record without noting the potential range of punishments the defendant faced if he was found to be in violation of probation.
On January 10, 2014, Cizik filed a motion to withdraw his appearance in this case, citing an " irretrievable breakdown of the attorney-client relationship." Cizik stated that the defendant had refused on multiple occasions to meet with him or his investigator and therefore he " has been unable to adequately discuss, prepare, and investigate this case . . . ." Within the motion, Cizik noted that the defendant faced " a maximum sentence of nine years if found in violation of his probation." He also stated that he would provide the defendant with notice of the motion to withdraw by [158 Conn.App. 235] mail and would speak to him about it in person at the violation of probation ...