State v. Diaz, (SC 17245).

• Decision Date: 09 August 2005
• Docket Number: (SC 17245).
• Citation: 274 Conn. 818,878 A.2d 1078
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. DANIEL DIAZ.

274 Conn. 818

878 A.2d 1078

STATE OF CONNECTICUT v. DANIEL DIAZ.

(SC 17245).

Supreme Court of Connecticut.

Argued November 30, 2004.

Officially released August 9, 2005.

Borden, Katz, Palmer, Vertefeuille and Zarella, Js.

Neal Cone, senior assistant public defender, for the appellant (defendant).

Denise B. Smoker, assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Mary Rose Palmese, supervisory assistant state's attorney, for the appellee (state).

Opinion

PALMER, J.

A jury found the defendant, Daniel Diaz, guilty of two counts of possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (b), two counts of possession of narcotics in violation of General Statutes § 21a-279 (a), and one count of criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). The trial court rendered judgment in accordance with the jury verdict and imposed a total effective sentence of forty-three years imprisonment. On appeal,¹ the defendant claims that the trial court failed to canvass him adequately in accordance with Practice Book § 44-3² before permitting him to proceed to trial without counsel, in violation of his constitutionally protected right to counsel. In support of his claim that his waiver of counsel was constitutionally infirm, the defendant contends, inter alia, that the court failed to apprise him of the range of possible penalties that he faced upon conviction. We agree with the defendant and, accordingly, reverse the judgment of the trial court.

The jury reasonably could have found the following facts. On March 13, 2001, officers of the New Britain police department arrested Kevin Lockery for a narcotics offense. In exchange for leniency, Lockery agreed to cooperate and thereafter identified the defendant as his drug supplier. At the instigation of the police, Lockery contacted the defendant via a cellular telephone and arranged to purchase five bags of heroin from him in the vicinity of a pay telephone located across the street from the Meadowlands Restaurant in New Britain. Shortly thereafter, surveillance officers observed the defendant enter his vehicle and travel from his apartment to a parking lot near that pay telephone. The defendant pulled into the parking lot but left when Lockery, who had remained at the police station, did not arrive. Shortly thereafter, the police stopped the defendant's vehicle. A patdown search of the defendant revealed twenty-five packets of heroin, a cellular telephone and $1025 in cash. The defendant was arrested and charged with various narcotics offenses.

The following day, the police obtained a search warrant for the defendant's apartment. Upon execution of the warrant, the police seized, inter alia, 167 packets of heroin similar to those that they had seized from the defendant's person the day before, approximately sixteen grams of marijuana, a twelve gauge shotgun and several items commonly used in the packaging of marijuana for sale, including a scale, ziplock bags and elastic bands.

At the defendant's arraignment later that day, attorney Daniel Dilzer of the law firm of Davila and Dilzer appeared on the defendant's behalf for bond purposes only. Although the defendant already was facing larceny, failure to appear and motor vehicle charges unrelated to his arrest for his possession of narcotics on March 13, 2001, he was released on bond. On April 5, 2001, however, the defendant was arrested again on narcotics charges that also had arisen out of events unrelated to the present case.³ At his April 6, 2001 arraignment on the narcotic charges relating to the April 5, 2001 arrest, attorney Abraham Kazanjian of the public defender's office appeared on behalf of the defendant for bond purposes only. Kazanjian informed the court, Wollenberg, J., that the defendant had retained attorney Dilzer to represent him in connection with his motor vehicle matters and that the defendant currently was in the process of retaining attorney Jon Schoenhorn to represent him in connection with the other pending criminal matters. When the defendant again appeared in court on April 10, 2001, he was represented by attorney Robert McKay, also of the law firm of Davila and Dilzer. McKay informed the court, Owens, J., that McKay's firm had filed appearances in the defendant's motor vehicle matters only and that the defendant had not yet obtained counsel for the "new cases." The court continued all of the defendant's cases for several weeks so that he could have the opportunity to obtain counsel in each of the pending criminal matters.

The defendant again appeared in court on May 14, 2001, at which time he was accompanied by attorney McKay. At that proceeding, McKay informed the court, Wollenberg, J., that McKay's firm was representing the defendant in the defendant's motor vehicle matters and that the firm had filed appearances in certain of the defendant's other cases for bond purposes only. Noting that some of the pending cases were "very substantial," the court denied the defendant's motion for a bond reduction and scheduled the defendant's next court appearance for June 4, 2001. The court emphasized that the defendant needed an attorney for the "drug cases."

On June 4, 2001, however, attorney Raul Davila of Davila and Dilzer appeared in court with the defendant and informed the court, Wollenberg, J., that the defendant did not wish to have Davila's firm continue to represent him. The defendant confirmed Davila's statements and also stated that he expected that attorney Schoenhorn would be present at the defendant's next court appearance. Thereafter, however, on July 9, 2001, the defendant appeared without counsel and informed the court, Wollenberg, J., that Schoenhorn would not be representing him. After first indicating that he intended to retain an attorney, the defendant then told the court that he planned to proceed pro se in his pending cases. The court advised the defendant that if he chose to proceed pro se, an attorney would be appointed to serve as standby counsel.⁴ The court also advised the defendant that he would be trying the cases against trained prosecutors and that he "could do a couple of years on [the failure to appear and motor vehicle charges] alone." At the conclusion of the hearing, the court placed the defendant's cases on the firm trial list.

At the next court appearance, on September 17, 2001, the defendant's mother informed the court, Owens, J.,⁵ that she was in the process of retaining attorney William J. Sweeney to represent the defendant. The court removed the defendant's cases from the firm trial list and continued them to October 1, 2001, for a pretrial conference. On that date, however, Sweeney appeared on behalf of the defendant for bond purposes only and indicated that he was representing the defendant in only one of his pending cases. The defendant informed the court that he would be representing himself in the other cases. After noting that the defendant could not be "force[d]" to have an attorney represent him, the court once again placed the defendant's cases on the firm trial list.

The defendant next appeared in court on October 22, 2001, at which time the trial court canvassed him concerning his decision to waive his right to counsel and to proceed pro se.⁶ The defendant informed the court that he was thirty-six years old, that he had graduated from high school, that he had no history of mental health problems and that he had spoken to several attorneys about his cases. The court then briefly reviewed the charges pending against the defendant, informed him of his right to counsel, explained in some detail the "obvious dangers and disadvantages" of proceeding pro se and advised him that he would be "better off being represented by an attorney instead of representing [himself]." The defendant nevertheless reiterated his desire to proceed without counsel. At that point, the assistant state's attorney made an on-the-record plea offer of fifteen years imprisonment, which the defendant rejected, responding that "plea bargaining will not be a resolution to this case." At the close of the proceeding, the court again addressed the issue of waiver, stating: "You know that I know that there's an offer in this case of fifteen years, but you know, after a jury decides the case, and either convicts you or, obviously, if you're acquitted, you're acquitted. If you're convicted, you know, you run — the judge, or whoever the judge is, has the benefit of — we'll do a presentence report and then we'll do whatever sentence is appropriate. You understand that?" According to the transcript of the proceedings, the defendant did not respond.

On December 17, 2001,⁷ the defendant appeared in court to argue his previously filed motion for a bond reduction. At the hearing, the state requested that the court appoint standby counsel for the defendant. The court granted the state's request and, in addition, scheduled jury selection to begin on January 7, 2002. After hearing arguments on the defendant's motion for a bond reduction, the court denied the motion.

During the course of that proceeding, the court asked the defendant why he had not retained counsel. The defendant indicated that he was dissatisfied with the legal services rendered by counsel whom he previously had retained. The court then noted that the defendant might be eligible for the services of the public defender, stating: "[W]hy don't you talk to the public defender, you know, tell the public defender you want to — you know, you're probably entitled with these kinds of charges. These are big prison time cases . . . ." The defendant responded: "Yes, I understand that, Your Honor. It appears to be that way. Also, there are many things within my file, Your Honor, in which — they have been concealed for a very long time, Your Honor. . . . I honestly believe that I can try this case on my own."

On January 7, 2002, ...