Argued
September 17, 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 granting the
petition, from which the respondent, on the granting of
certification, appealed. Affirmed.
Michael J. Proto, assistant state's attorney, with whom,
on the brief, was Anne F. Mahoney, state's attorney, for
the appellant (respondent).
Stephen A. Lebedevitch, assigned counsel, for the appellee
(petitioner).
Robinson, C. J., and Palmer, McDonald, D'Auria, Mullins,
Kahn and Ecker, Js.
OPINION
MULLINS, J.
This
case returns to us for a second time. This time, the
respondent, the Commissioner of Correction, appeals from the
judgment of the habeas court granting the petition for a writ
of habeas corpus filed by the petitioner, Gene
Newland.[1] The principal issue in this appeal is
whether the petitioner, who was denied counsel at his
criminal trial and failed to raise a claim related to that
deprivation either at trial or on direct appeal, is required
to demonstrate actual prejudice to overcome the
respondent's claim of procedural default. We conclude
that, for purposes of procedural default, after the
petitioner has established good cause for failing to raise
his claim that he was completely deprived of his right to
counsel, prejudice is presumed. Thus, we affirm the judgment
of the habeas court.
The
facts are fully set forth in this court's decision in
Newland v. Commissioner of Correction, 322
Conn. 664, 667, 142 A.3d 1095 (2016). We provide the
following facts and procedural history as a brief summary. 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, a public defender appeared on the
petitioner's behalf for bond purposes only.
At the
next pretrial hearing, the petitioner appeared without
counsel, and the assistant state's attorney informed the
court that the petitioner had applied for a public defender
but had been deemed ineligible. The trial court initially
continued the case for six weeks to allow the petitioner to
retain private counsel. At approximately twelve pretrial
hearings over the next sixteen months, the petitioner
continued to appear as a self-represented party. During one
of these hearings, the petitioner informed the court that the
Division of Public Defender Services (public defender's
office) had deemed him ineligible for appointed counsel
because of his ownership of the house in which his family
lived. Nevertheless, he explained to the court that he was
having difficulty finding private counsel because he could
not afford one.
In late
2008, the petitioner informed the court that he had lost one
of his jobs and that his home was in foreclosure. He also
asked the court if someone could assist him in preparing his
case. At that point, the court suggested that the petitioner
could reapply for a public defender if his financial
situation had worsened. The petitioner later reapplied, but
the public defender's office again deemed him ineligible
because he still owned a home. At the following hearing, the
court notified the petitioner that it would not put the case
on the jury list until at least March, 2009, in order to
allow the petitioner additional time to retain counsel.
In
April, 2009, the petitioner appeared as a self-represented
party to commence jury selection. The trial court conducted a
colloquy to determine if the petitioner was waiving his right
to counsel. The petitioner indicated that he had twice been
rejected by the public defender's office and further
explained that his efforts to obtain private counsel were
unsuccessful because he could not afford the payment that
counsel demanded. After this explanation, the court stated as
follows: ‘‘So implicit in what you're telling
me is you're waiving your right to have counsel represent
you.'' The petitioner responded as follows:
‘‘At present, yes. Unfortunately, I have no other
choice.'' Ultimately, the court found that, under
these circumstances, the petitioner had waived his right to
counsel. The trial court made no express finding as to
whether the petitioner had the financial means to hire
counsel or whether he was dilatory in failing to hire
counsel. The court did not appoint standby counsel. The trial
proceeded with the petitioner representing himself.
‘‘Following
a jury trial, the petitioner 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, ...