Dennis v. Comm'r of Corr.
| Decision Date | 03 April 2012 |
| Docket Number | AC 32155 |
| Court | Connecticut Court of Appeals |
| Parties | ANDRE DENNIS v. COMMISSIONER OF CORRECTION |
The "officially released" date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ''officially released'' date appearing in the opinion. In no event will any such motions be accepted before the ''officially released'' date.
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The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and 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 Publications, Judicial Branch, State of Connecticut.DiPentima, C. J., and Bear and Lavery, Js.
(Appeal from Superior Court, judicial district of
Bradford Buchta, assistant public defender, for the appellant (petitioner).
Kathryn Ward Bare, assistant state's attorney, with whom, on the brief, were John Connelly, former state's attorney, and Karen Diebolt, assistant state's attorney, for the appellee (respondent).
The petitioner, Andre Dennis, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The dispositive issue on appeal is whether the court properly determined that the petitioner was represented by counsel during the underlying criminal proceedings. We conclude that the court erred in determining that the petitioner was represented by counsel. Accordingly, we reverse the judgment of the habeas court.
The following facts and procedural history are relevant to our review of the petitioner's appeal. The underlying criminal proceedings stem from three independent arrests. First, the petitioner was arrested on November 16, 2006, and charged with various criminal and motor vehicle offenses under four separate warrants.1 Second, the petitioner was arrested on March 20, 2007, and charged with various criminal offenses including criminal mischief in the third degree, violation of a restraining order and threatening in the second degree under three additional warrants. Third, the petitioner was arrested on March 22, 2007, and charged with, among other offenses, criminal mischief in the second degree and harassment in the second degree under another three warrants. Therefore, the petitioner had a total of ten criminal cases.
Following the petitioner's first arrest, a public defender was appointed during the petitioner's arraignment. The court set the petitioner's bond at $100,000. The petitioner posted bond and then hired a private attorney, Michael Ferguson, to represent him on the four cases which arose out of his first arrest.
At the petitioner's arraignment for his second arrest on March 21, 2007, the court asked the public defender whether the petitioner qualified for public defender services. The public defender responded that the petitioner would like to represent himself. Without canvassing the petitioner, the court permitted him to do so. The court then set the petitioner's bond at $250,000 which was not posted.
The next day, the petitioner was arraigned on the final three cases. At the arraignment, the court asked the petitioner whether he wished to argue his bond himself or have a lawyer argue it. The petitioner responded: ''It doesn't matter.'' The petitioner then informed the court that he had retained an attorney, Michael Ferguson. The assistant state's attorney informed the court that although Ferguson did in fact represent the petitioner in four cases, he had notified the state that he was not going to enter appearances in the new files. The court then set the petitioner's bond at $55,000, which was not posted.
On May 8, 2007, the petitioner appeared before the court again. The assistant state's attorney informed thecourt that Ferguson would not be representing the petitioner in the six new cases. The public defender then informed the court that although he would like to be appointed for the purposes of the bond hearing, he would not like it to be a full appointment because the petitioner had posted a $100,000 bond in the first four cases, and, therefore, the petitioner was able to hire private counsel for the remaining six cases. Ultimately, the public defender deferred to the court on whether a public defender should be appointed to fully represent the petitioner. The court, however, took no action but stated that it would address the issue on the next court date. The next court date was on May 15, 2007, but the issue was not addressed.
On June 19, 2007, the petitioner appeared before the court again. Ferguson informed the court that he represented the petitioner in only four of the ten cases and that the petitioner did not have an attorney in the other six cases. The assistant state's attorney then informed the court that an offer had been made to resolve all ten of the petitioner's pending criminal cases. The petitioner accepted the state's plea bargain offer for a total effective sentence of five years incarceration. After canvassing the petitioner pursuant to Practice Book § 3919,2 the court accepted his pleas of guilty. The petitioner's case was continued to July 23, 2007, for sentencing.
On July 23, 2007, the assistant state's attorney informed the court that she had received a letter from the petitioner that appeared to be a request to withdraw his pleas of guilty. One of the reasons that the petitioner gave for wanting to withdraw his pleas was that he had represented himself on six of the ten cases. Ferguson reminded the court that he only represented the petitioner on four of the ten cases. The court ultimately denied the petitioner's request to withdraw his pleas. The court then imposed a total effective sentence of five years incarceration. The petitioner did not file a direct appeal.
On March 12, 2008, the petitioner filed a petition for a writ of habeas corpus. Through his investigation, the petitioner's attorney for this habeas matter, Bradford Buchta, discovered that there was no factual basis for one of the charges3 in which the petitioner was unrepresented and to which he pleaded guilty. Buchta informed the assistant state's attorney, who agreed, and on July 15, 2009, the state filed a motion to correct an illegal sentence in the trial court for a case in which the petitioner was unrepresented. The state asked that the petitioner's guilty plea and sentence be set aside and that the charge of criminal violation of a restraining order be dismissed because there in fact had not been a restraining order in effect at the time. The court granted the state's motion. The remainder of the plea agreement and the total effective sentence was not affected by this decision because the petitioner also was serving aseparate and concurrent five year sentence with the same discharge date.
The petitioner's amended petition for a writ of habeas corpus alleged that he was denied his sixth amendment right to counsel for the six cases in which he was self-represented. The respondent, the commissioner of correction, argued that the petitioner's claim was procedur-ally defaulted because the petitioner failed to raise the claim in the trial court or on direct appeal. After a trial, the court orally rendered judgment in favor of the respondent. The court found that the petitioner was procedurally defaulted for failing to appeal his motion to withdraw his guilty pleas. The court also concluded that the petitioner did not waive his right to counsel but, rather, ''declined to exercise [his] right to have either a public defender if he was indigent or hire counsel to represent him.'' The court stated that the petitioner elected to proceed representing himself and could have, at any time during the proceedings, requested the services of a public defender. The court further concluded that Ferguson, who represented the petitioner on four of the ten cases and having negotiated a global settlement on all ten of the cases, ''acted as a de facto counsel representing him in the other six matters.'' The court then denied the petition for a writ of habeas corpus.
On appeal, the petitioner claims that (1) the habeas court erred by applying the procedural default doctrine to his claim, (2) the habeas court erred in finding that the petitioner's criminal defense attorney acted as his ''de facto'' counsel for all ten cases, and that the ''de facto'' representation met the requirements of the sixth amendment, (3) the habeas court erred in finding that the petitioner knowingly and intelligently waived his right to counsel in six of the ten cases disposed of as part of the plea agreement, (4) harmless error analysis does not apply and prejudice is presumed and (5) the appropriate remedy on remand is to order that the habeas corpus petition be granted and that the entire plea agreement be vacated. The respondent argues that the habeas court properly denied the petition because the petitioner was not denied his sixth amendment right to counsel. We agree with the petitioner as to all claims.
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