Newland v. Comm'r of Corr.

• Citation: 322 Conn. 664,142 A.3d 1095
• Decision Date: 30 August 2016
• Docket Number: No. 19381.,19381.
• Court: Supreme Court of Connecticut
• Parties: Gene NEWLAND v. COMMISSIONER OF CORRECTION.

322 Conn. 664

142 A.3d 1095

Gene NEWLAND

v.COMMISSIONER OF CORRECTION.

No. 19381.

Supreme Court of Connecticut.

Argued Oct. 7, 2015.

Decided Aug. 30, 2016.

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, Bridgeport, 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.

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.

IFACTS 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...