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Newland v. Commissioner of Correction

Supreme Court of Connecticut

August 30, 2016

GENE NEWLAND
v.
COMMISSIONER OF CORRECTION

          Argued October 7, 2015

          Michael J. Proto, assistant state’s attorney, with whom, on the brief, was Patricia M. Froehlich, state’s attorney, for the appellant (respondent).

          Stephen Lebedevitch, with whom were James J. Ruane and, on the brief, Grayson Colt Holmes and Stephanie M. O’Neil, for the appellee (petitioner).

          Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.

          OPINION

          ZARELLA, J.

         This certified appeal involves two related claims raised by the petitioner, Gene Newland, for the first time during postconviction proceedings, namely, whether the trial court conducted an inadequate canvass prior to finding that he waived his right to counsel under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution, and whether the trial court erroneously concluded that the waiver was knowing, intelligent and voluntary. The respondent, the Commissioner of Correction, appeals from the judgment of the Appellate Court, which affirmed the judgment of the habeas court granting the petitioner a new trial on the ground that the Division of Public Defender Services (public defender’s office) had erroneously determined that he was ineligible for the assistance of counsel. The respondent contends that the Appellate Court incorrectly concluded that the petitioner had raised a claim of public defender error in the habeas court and that the claim was not procedurally defaulted because the cause and prejudice necessary to excuse procedural default is presumed when the right to counsel has been violated. We agree with the respondent that the petitioner did not advance a claim of public defender error in the habeas court but, rather, claimed that the trial court had conducted an inadequate canvass and erroneously concluded that he knowingly, intelligently and voluntarily waived his right to counsel. We thus reverse the judgment of the Appellate Court and direct that court to remand the case to the habeas court to address these claims. We decline to consider whether the cause and prejudice necessary to excuse procedural default may be presumed in the context of the petitioner’s claims of trial court error because the habeas court and the Appellate Court did not conclude that default was excused with respect to those claims, and, accordingly, the issue is not properly before this court.

         I

         FACTS AND PROCEDURAL HISTORY

         The record reveals the following undisputed facts and procedural history. In 2007, the petitioner was charged with one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and one count of risk of injury to a child in violation of General Statutes (Rev. to 2003) § 53-21 (a) (2) in connection with an incident that occurred in 2003. At his arraignment in the judicial district of Windham in May, 2007, Assistant Public Defender Ernest Green, Jr., appeared on behalf of the petitioner for bond purposes only. The petitioner subsequently posted $1000 on a $10, 000 bond with the partial help of a loan from a friend and was released from custody. At the next pretrial hearing in June, 2007, the petitioner appeared without counsel. The assistant state’s attorney (prosecutor) informed the court that the petitioner had applied for a public defender but had been deemed ineligible. In accordance with the recommendation of the public defender’s office, as represented by the prosecutor, the trial court continued the case for six weeks to allow the petitioner to retain private counsel.

         Between July, 2007, and December, 2008, the petitioner appeared as a self-represented party for at least twelve pretrial scheduling hearings. At more than one of these hearings, the petitioner informed the court that the public defender’s office had deemed him ineligible for appointed counsel due to his ownership of property, the house that his ‘‘family’’ was living in, [1] but that he nonetheless was having difficulty securing an attorney because he could not afford to hire one. At one hearing, the petitioner indicated that he was in the process of trying to refinance his property to obtain the funds. The petitioner’s case was repeatedly continued to allow him more time to secure counsel. No representative from the public defender’s office ever appeared in court to address the denial of services.

         At a hearing in October, 2008, the petitioner indicated that his situation had worsened because he had lost one of his jobs due to a lack of transportation and because his house was in foreclosure. He asked the court if someone could assist him in preparing his case. In response, the court stated: ‘‘I can’t tell somebody to do that for you. You either qualify for the public defender services or you don’t, and that’s a determination made by them independent[ly] of the court.’’ The court suggested that the petitioner reapply for a public defender if his financial situation worsened since he first applied.

         At a December, 2008 hearing, the trial court informed the petitioner that it was scheduling the petitioner’s case for a jury trial due to the fact that nearly two years had elapsed since his arrest. The court agreed not to put the case on the jury list until at least March, 2009, in order to allow the petitioner more time to retain counsel. The court warned the petitioner that trial would proceed regardless of whether he secured counsel at that time.

         In April, 2009, the petitioner appeared as a self-represented party to commence jury selection. At the outset, the court stated that it assumed that the petitioner had had plenty of time by this point to retain counsel. In response, the petitioner indicated that his efforts had been unsuccessful because he could not afford the minimum payment that counsel demanded, he was facing foreclosure on his property, and he had twice been deemed ineligible for public defender services. He indicated that he had just learned that he might be able to ‘‘put some kind of attachment to the property for a lawyer, so it’s [going to] hopefully aid me in getting counsel because I [did not have] any idea that I could do that before . . . .’’ The following exchange then ensued:

‘‘The Court: But you have been advised over the past two years on different occasions . . . of your right to have an attorney represent you?
‘‘[The Petitioner]: Yes, I have.
‘‘The Court: Okay. And implicit in that right is the right to a public defender if you couldn’t afford private counsel, but you say you’ve tried twice, and you’ve been deemed not to be qualified.
‘‘[The Petitioner]: Due to the fact I own property. As soon as you . . . state that you own property or have a mortgage on property, you’re automatically disqualified for a public defender, they told me. So, because I have property in my name, I’m not qualified for a public defender.
‘‘The Court: So implicit in what you’re telling me is you’re waiving your right to have counsel represent you.
‘‘[The Petitioner]: At present, yes. Unfortunately, I have no other choice.
‘‘The Court: All right. I’m going to ask you some questions to ensure that you know exactly what you’re getting into.’’

         In addition to addressing the petitioner with regard to matters required for a proper waiver of counsel under Practice Book § 44-3, the court inquired about the petitioner’s circumstances. The petitioner informed the court that he was thirty-seven years old and had a tenth grade education. He also explained that he had limited income and no family members with means to assist him. He indicated that he was not familiar with the rules of criminal procedure but that he had been given the Code of Evidence and some basic advice by Assistant Public Defender Green, and hoped to become familiar with these rules and procedures before trial. In response to the question of whether he felt that he had the training, experience and skill to represent himself, he stated: ‘‘Honestly, no, I don’t feel I possess that training. . . . But I’m at the point where I have no other choice.’’ When the court asked the petitioner whether he thought he had been given a reasonable time in which to seek private counsel, he responded: ‘‘Yes, I have. I’ve done what I can with my means, unfortunately.’’ An exchange then ensued about the petitioner’s efforts to obtain counsel. The court noted that it had never had a defendant represent himself with charges as serious as those facing the petitioner but explained that justice demands that at some point the state have the right to try its case. At the conclusion of its canvass, the court stated: ‘‘I’m going to make a finding under the circumstances that the [petitioner] has waived his right to be represented by counsel. I’m disappointed that the court is asked to make this finding, but I don’t see any alternative.’’ The trial court made no express finding regarding whether the petitioner had the financial means to hire counsel or whether he had intentionally engaged in dilatory conduct. See, e.g., United States v. Bauer, 956 F.2d 693, 695 (7th Cir.) (‘‘the combination of ability to pay for counsel plus refusal to do so does waive the right to counsel’’ [emphasis in original]), cert. denied, 506 U.S. 882, 113 S.Ct. 234, 121 L.Ed.2d 169 (1992); see also Fischetti v. Johnson, 384 F.3d 140, 145 (3d Cir. 2004) (‘‘[a] defendant’s right to counsel is not without limit and cannot be the justification for inordinate delay or manipulation of the appointment system’’); United States v. Mitchell, 777 F.2d 248, 256 (5th Cir. 1985) (‘‘The right to choose counsel may not be subverted to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice. It is a right and a proper tool of the defendant; it cannot be used merely as a manipulative monkey wrench.’’ [Internal quotation marks omitted.]), cert. denied sub nom. Prado v. United States, 475 U.S. 1096, 106 S.Ct. 1493, 89 L.Ed.2d 895 (1986), and cert. denied, 476 U.S. 1184, 106 S.Ct. 2921, 91 L.Ed.2d 549 (1986). The court did not appoint standby counsel.

         Following a jury trial, the defendant was found guilty of both the sexual assault and risk of injury counts. The trial court rendered judgment in accordance with the verdict and imposed a total effective sentence of ten years imprisonment followed by eight years of special parole, with conditions including registration as a sexual offender. The petitioner did not appeal from the judgment of conviction.

         Thereafter, the petitioner, as a self-represented party, filed a petition for a writ of habeas corpus, alleging that he had wrongfully been denied counsel. The petitioner was referred to the public defender’s office, which determined that the petitioner was indigent. Counsel filed an amended two count petition, claiming that the trial court had (1) inadequately canvassed the petitioner prior to finding that he had waived his right to counsel, and (2) incorrectly concluded that the petitioner knowingly, intelligently and voluntarily waived his right to counsel. The amended petition alleged, inter alia, that the claims were not procedurally defaulted because cause and prejudice is presumed when a petitioner’s right to counsel has been violated.

         The respondent thereafter filed a return asserting an affirmative defense of procedural default as to both counts, citing the petitioner’s failure to raise these claims before the trial court and his failure to appeal from the judgment of conviction. The respondent then filed a motion for summary judgment on the basis of that defense, claiming that no presumption of cause and prejudice applies to claims of an inadequate waiver canvass. The habeas court denied the motion without prejudice.

         During the evidentiary hearing on the petition, the petitioner introduced the transcripts of the criminal proceedings without objection. When the petitioner sought to introduce evidence regarding his bank account balances between June, 2007, and April, 2009, his efforts to obtain counsel, and the procedures for determining eligibility for public defender services, the respondent objected. The respondent claimed that this evidence was irrelevant because the petitioner had not advanced a challenge to the determination of the public defender’s office that he was not indigent. The petitioner replied that the evidence was relevant to the claims that he had raised in his petition. The habeas court overruled the objection without prejudice to being renewed in the posttrial briefs. Thereafter, the petitioner testified that he had a minimal or negative bank account balance during this period, which he supported with bank account statements, and that he was working a low wage job in April, 2009. He testified that he had made numerous, unsuccessful efforts to obtain private counsel after he had been denied a public defender, and that no one had informed him that he had the right to appeal from the eligibility decisions of the public defender’s office. The petitioner acknowledged that he had approximately $50, 000 in equity in his property, based on the property’s appraised value when he refinanced it in January, 2007, and the outstanding mortgage on the property.[2] He offered evidence to establish that an action to foreclose the mortgage had been commenced in July, 2008.

         The petitioner also proffered testimony from Ramon J. Canning, the Public Defender for the judicial district of Windham, where the petitioner filed his applications, and Brian S. Carlow, the Deputy Chief Public Defender in the Office of the Chief Public Defender. Neither had any knowledge of the petitioner’s applications, which had been destroyed, and, therefore, they only offered testimony regarding application procedures and eligibility criteria generally. Although there was no dispute that, at the time of the waiver canvass in April, 2009, the petitioner would have met the income eligibility guidelines for public defender services on the basis of the income he reported to the trial court and the seriousness of the charges, there were some inconsistencies in Canning’s and Carlow’s testimony. Canning testified that equity in property could be a disqualifying factor, which would not be affected by a pending foreclosure because a property owner might still have considerable equity despite the pending foreclosure. By contrast, Carlow assumed that the equity in a property would not be readily accessible if the property was in foreclosure, barring unusual circumstances, and, therefore, property subject to foreclosure generally would not be a factor in assessing eligibility. Carlow further testified that, in the late 2000s, property ownership would not have been given significant weight indisqualifying an income eligible applicant because he assumed that relatively few people would have been able to easily access any equity due to the state of the economy at that time. In addition, Carlow testified that the eligibility decision of the public defender’s office is only a recommendation, with the trial court having ultimate authority to decide whether a defendant is eligible, whereas Canning indicated that the eligibility decision is final unless challenged.

         The habeas court thereafter granted the petition, concluding that the petitioner’s sixth amendment right to counsel had been violated. In support of its decision, the habeas court made the following findings. At the time of his trial, the petitioner was making between $300 and $350 per week. He had no available funds in any bank accounts. He owned a residential property that was subject to a mortgage in the amount of approximately $117, 000 and that had a fair market value of $168, 000 prior to his 2007 arrest. As of July, 2008, and during the petitioner’s criminal trial, the petitioner’s property was subject to a foreclosure action based on his default on the mortgage. The petitioner had easily met the income eligibility requirements set by the Public Defender Services Commission for a serious felony charge and, therefore, was presumed to be eligible for services. The public defender’s office erred in denying the petitioner’s application on the basis of his property ownership because the equity was limited and not readily accessible, and because the property was subject to an ongoing foreclosure action.

         With respect to the respondent’s affirmative defense, the habeas court concluded that a claim of public defender error was not procedurally defaulted. It relied on Dennis v. Commissioner of Correction, 134 Conn.App. 520, 532, 536, 39 A.3d 799 (2012), for the proposition that a denial of counsel establishes the cause and prejudice necessary to excuse default. The habeas court further reasoned that, because neither the public defender’s office nor the trial court had informed the petitioner that he had a right to appeal from the denial of his applications for public defender services, [3] and because the petitioner had explained his financial situation to the trial court, he was not defaulted for failure to appeal from the denial of his applications to the trial court.

         With respect to the merits of the petitioner’s claim, the habeas court determined that ‘‘the correctness of the public defender’s indigency determination goes directly to the petitioner’s claim that he did not knowingly, intelligently and voluntarily waive his right to counsel and, thus, is properly before the court.’’ Ultimately, the court concluded: ‘‘[T]he petitioner did not knowingly, intelligently and voluntarily waive his right to counsel because he mistakenly believed that he did not qualify for the public defender’s services and only acquiesced to representing himself because he could not afford or otherwise retain private counsel. Had the petitioner been properly informed of his right to the services of a public defender, he would have accepted those services. Thus, but for the public defender’s 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.’’ (Internal quotation marks omitted.) The habeas court rendered judgment granting the habeas petition, vacated the petitioner’s conviction, and ordered that he be granted a new trial.

         The respondent appealed from the judgment of the habeas court to the Appellate Court. On appeal, the respondent claimed that (1) the habeas court improperly denied his motion for summary judgment because the cause and prejudice necessary to overcome procedural default is not presumed in a claim that the trial court’s canvass and determination of waiver were improper, (2) the habeas court improperly granted the petition on the basis of a claim that had not been raised in the petition, and (3) even if properly considered, the petitioner had not met his burden of proving that he had been deprived of counsel due to an error by the public defender’s office. See Newland v. Commissioner of Correction, 151 Conn.App. 134, 146 and n.1, 150, 152, 94 A.3d 676 (2014). The Appellate Court affirmed the judgment of the habeas court; id., 153; relying on reasoning largely consistent with that of the habeas court. See id., 146-53. The Appellate Court summarily rejected the respondent’s contention that the petitioner’s claim was procedurally defaulted by virtue of the petitioner’s failure to appeal from the judgment of conviction, reasoning: ‘‘[B]ecause our resolution of the respondent’s claim of procedural default is based upon the petitioner’s claim of a violation of his right to counsel and whether cause and prejudice are presumed in the presence of such a violation, the procedural mechanism by which the petitioner perhaps should have raised his claims is immaterial.’’ Id., 146-47 n.1.

         We thereafter granted the respondent’s petition for certification to appeal, limited to two issues: First, ‘‘[d]id the Appellate Court properly affirm the habeas court’s determination that ‘cause and prejudice’ [are] presumed in a claim of trial court error?’’[4] Newland v. Commissioner of Correction, 314 Conn. 916, 917, 100 A.3d 406 (2014). Second, ‘‘[d]id the Appellate Court properly affirm the habeas court’s determination that a claim of public defender error was properly before the habeas court, and, if so, did the Appellate Court properly determine that the habeas court correctly determined that the petitioner had met his burden of proof?’’ Id.

         In resolving the respondent’s claims, we are mindful that ‘‘[t]he underlying historical facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . Historical facts constitute a recital of external events and the credibility of their narrators. . . . Questions of law and mixed questions of law and fact [however, are subject to] plenary review.’’ (Internal quotation marks omitted.) Crawford v. Commissioner of Correction, 294 Conn. 165, 174, 982 A.2d 620 (2009). Except as otherwise noted, the issues in the present case are subject to plenary review.

         II

         NATURE OF THE PETITIONER’S HABEAS CLAIMS

         Ordinarily, our first task would be to consider whether the habeas court properly concluded that procedural default did not serve to bar the petitioner’s claims. In the present case, however, the habeas court determined that there was no procedural default only after concluding that the petitioner had alleged public defender error. We thus begin with the respondent’s contention that the petitioner did not advance a claim of public defender error. We conclude, following a close examination of the record, that the petitioner did not claim public defender error.[5] Accordingly, the Appellate Court improperly upheld the habeas court’s determination that a claim of public defender error was not procedurally defaulted.

         ‘‘It is well settled that [t]he petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action. . . . It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint. . . . While the habeas court has considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violations . . . it does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised. . . . The purpose of the [petition] is to put the [respondent] on notice of the claims made, to limit the issues to be decided, and to prevent surprise. . . . [T]he [petition] must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties.’’ (Citation omitted; internal quotation marks omitted.) Lebron v. Commissioner of Correction, 274 Conn. 507, 519-20, 876 A.2d 1178 (2005), overruled in part on other grounds by State v. Elson, 311 Conn. 726, 91 A.3d 862 (2014). In the present case, the habeas pleadings, the petitioner’s filings in the habeas court, the respondent’s procedural default defense and the parties’ arguments at the evidentiary hearing all support the conclusion that the petitioner alleged error by the trial court and not by the public defender’s office.

         The petitioner’s two count amended habeas petition alleged that (1) ‘‘[t]he trial court conducted an inadequate canvass of [the] petitioner prior to finding that [the] petitioner had waived his right to counsel, ’’ and (2) ‘‘[t]he trial court erroneously concluded that [the] petitioner had knowingly and intelligently waived his right to counsel.’’ The amended petition also alleged that these errors occurred after the petitioner was twice denied access to the services of a public defender and before he was able to find private counsel. The pleadings contained no allegation that the decision of the public defender’s office was incorrect or that the petitioner was indigent under General Statutes § 51-297, and the petitioner never attempted to amend his petition to include such allegations. See Practice Book § 23-32 (‘‘The [habeas] petitioner may amend the petition at any time prior to the filing of the return. Following the return, any pleading may be amended with leave of the judicial authority for good cause shown.’’); see also Practice Book § 10-62 (‘‘[i]n all cases of any material variance between allegation and proof, an amendment may be permitted at any stage of the trial’’). Furthermore, because the petitioner did not allege public defender error, the respondent’s return alleged procedural default based on the petitioner’s failure to appeal the trial court’s canvass and waiver determination to the Appellate Court, and not because he failed to appeal to the trial court from the eligibility determinations of the public defender’s office under § 51-297 (g).

         Thereafter, the petitioner claimed in his pretrial brief to the habeas court that the canvass was inadequate and that ‘‘the [trial] court erroneously concluded that [he] had waived his right to counsel.’’ In support of these claims, the petitioner specifically contended, inter alia, that the trial court had failed to obtain sufficient information on the record to determine that he knowingly, intelligently and voluntarily waived his right to counsel and that the ...


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