State v. Glen S.

• Citation: 207 Conn.App. 56,261 A.3d 805
• Decision Date: 31 August 2021
• Docket Number: AC 43101
• Parties: STATE of Connecticut v. GLEN S.
• Court: Appellate Court of Connecticut

207 Conn.App. 56

261 A.3d 805

STATE of Connecticut

v.GLEN S.^*

AC 43101

Appellate Court of Connecticut.

Argued March 3, 2021

Officially released August 31, 2021

Conrad Ost Seifert, assigned counsel, for the appellant (defendant).

Sarah Hanna, senior assistant state's attorney, with whom, on the brief, were Maureen T. Platt, state's attorney, and John R. Whalen, supervisory assistant state's attorney, for the appellee (state).

Prescott, Suarez and Vitale, Js.

VITALE, J.

The defendant, Glen S., appeals from the judgment of the trial court revoking his probation after finding that he had violated the conditions of his probation in violation of General Statutes § 53a-32. On appeal, the defendant claims: (1) the court's canvass regarding the waiver of his right to be represented by counsel was constitutionally inadequate under Faretta v. California , 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975) ; (2) even if the canvass was constitutional under Faretta , he is entitled to a new trial under State v. Connor , 292 Conn. 483, 973 A.2d 627 (2009), because he exhibited a noticeable impairment during the first day of the violation of probation evidentiary hearing; (3) this court should exercise its supervisory authority to require that trial courts canvass criminal defendants about the waiver of their constitutional rights to testify; (4) this court should review his claim of ineffective assistance of counsel on direct appeal because the ineffectiveness of his trial counsel is clear from the record; and (5) the court's judgment should be reversed because he was deprived of his constitutional right to conflict free representation. We disagree and, accordingly, affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to this appeal. The defendant pleaded guilty on August 13, 2008, to sexual assault in a spousal or cohabiting relationship in violation of General Statutes (Rev. to 2007) § 53a-70b. The defendant thereafter was sentenced by the court, Fasano, J. , to a term of fifteen years of incarceration, execution suspended after five years, and fifteen years of probation. The sentencing court imposed conditions of probation, which provided, inter alia, that the defendant (1) not violate any criminal law of Connecticut, (2) report to his probation officer as directed, (3) keep his probation officer apprised of any arrests during the probationary period, (4) keep the probation officer apprised of his location and inform the probation officer of any changes to his address or contact information, (5) undergo sex offender evaluation and treatment, and (6) register as a sex offender. On October 5, 2011, the court, Damiani, J. , imposed another condition of probation, barring the defendant from having any contact with the Office of the State's Attorney or any member of that office. The defendant signed an agreement detailing the conditions of his probation on March 15, 2012, and was released from prison on October 31, 2012. The defendant again signed an acknowledgment of the conditions of probation on May 3, 2017.

During his probation period, the defendant failed to complete the required sex offender treatment program and, consequently, was discharged from the program in February, 2018. In a letter to Jason Grady, the defendant's probation officer, a therapist for the sex offender treatment program informed Grady that the defendant had been discharged due to his constant outbursts and that the defendant's individual sessions were ineffective due to his escalating mental health instability. Grady then attempted to locate the defendant in May, 2018, after the defendant missed numerous probation appointments. While searching for the defendant, Grady discovered that the address provided by the defendant for the sex offender registry was for an administrative office and the defendant had not been living at that listed address. Grady further learned that the defendant had been arrested in Norwalk on June 28, 2018, for charges of interfering with an officer in violation of General Statutes § 53a-167a and breach of the peace in violation of General Statutes § 53a-181. As a result, Grady obtained an arrest warrant on July 20, 2018, for violation of probation on the basis of the defendant's arrest in Norwalk, his failure to report to adult probation as directed, and his failure to keep Grady apprised of his address. The defendant subsequently was arrested on August 28, 2018, after an arrest warrant was issued.

The defendant was arraigned on August 29, 2018, in Superior Court in Norwalk for violation of probation as well as for his refusal to submit to fingerprinting in violation of General Statutes § 29-12. During the arraignment, the defendant asserted that he wanted to represent himself for the bond hearing. The court, McLaughlin, J. , denied the defendant's request to represent himself at the bond hearing and, instead, appointed a public defender to represent the defendant for the bond hearing only. The defendant repeatedly objected to the appointment of counsel throughout the bond hearing. Due to the defendant's multiple outbursts during the bond hearing, the defendant's assigned public defender requested that mental health treatment be provided by the Department of Correction for the defendant.¹ The court granted the public defender's request and ordered on the mittimus that the defendant receive mental health treatment. The violation of probation case was thereafter transferred to the Superior Court in Waterbury. The misdemeanor charges underlying the violation of probation remained in Norwalk, along with the fingerprint charge.

On August 30, 2018, during the arraignment before the Superior Court in Waterbury, the defendant continued his outbursts and insisted that he be allowed to represent himself. The defendant's assigned public defender for the bond hearing in Waterbury informed the defendant that he would not be permitted to represent himself. The defendant continued to interrupt the proceedings while claiming that the court was violating his right to represent himself. As a result of the defendant's multiple outbursts during the arraignment, the assigned public defender requested that the court order mental health and medical treatment for the defendant, which request was granted by the court and ordered on a second mittimus. The defendant's violation of probation case was thereafter transferred to the judicial district of Waterbury.

On September 12, 2018, the court, Fasano, J. , asked the defendant if he would like to have an attorney to represent him, to which the defendant responded that he would like to represent himself. The court then went on to canvass the defendant in order to assess his ability to represent himself, after the defendant reiterated his desire to appear as a self-represented party. Following the canvass, the court granted the defendant's request to represent himself in the violation of probation proceeding, concluding that the canvass satisfied its concerns about whether the defendant was indeed competent to represent himself.

On October 9, 2018, the state filed a long form information alleging five grounds for the violation of probation charge against the defendant. Specifically, the state alleged that the defendant had failed to abide by the conditions that he (1) not violate any criminal laws of Connecticut, (2) report to his probation officer as directed, (3) keep his probation officer informed of his whereabouts, (4) complete sex offender evaluation and treatment, and (5) provide truthful information to the Connecticut State Police Sex Offender Registry Unit. A violation of probation evidentiary hearing was held on October 30, 2018.²

During the violation of probation hearing, the state presented testimony from Charles Santiago, the probation officer who had completed the defendant's probation intake and reviewed the conditions of probation with the defendant on March 15, 2012, and Grady, the defendant's probation officer at the time of his arrest for violation of his probation. Santiago testified that he reviewed the conditions of probation with the defendant prior to the defendant's release and that the defendant agreed to the conditions of probation by signing the form delineating the conditions. Grady testified that he typically had weekly check-ins with the defendant. After the defendant missed several appointments, Grady attempted to locate the defendant but could not find the defendant at his home or at his father's home. Further, he testified that the defendant had changed his address in the sex offender registry to an address for an administrative office. The state rested its case at the close of the defendant's cross-examination of Grady.

At the close of the October 30, 2018 hearing, the defendant sought to have the court appoint Attorney William T. Koch, Jr., as his defense counsel; however, the court was unable to grant the defendant's request because Koch was not on the authorized list of special public defenders. The court, however, advised the defendant that he could retain Koch as private counsel. The court then continued the evidentiary hearing until December 30, 2018, to allow the defendant more time to prepare after the defendant indicated that he intended to call numerous witnesses to testify. The court also admonished the defendant numerous times for his repeated outbursts throughout the violation of probation hearing.

On November 8, 2018, the defendant filed a request with the court to be appointed a special public defender, specifically, Koch. While in court on November 30, 2018, a member of the public defender's office indicated to the court that the defendant was eligible for public defender services. Nevertheless, the defendant then insisted on continuing to represent himself and made a request that Koch³ be appointed as his standby counsel. The attorney with the public defender's office who was present in court that...