State v. Henderson

• Decision Date: 20 November 2012
• Docket Number: 18931.,Nos. 18930,s. 18930
• Citation: 307 Conn. 533,55 A.3d 291
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Daniel HENDERSON.

307 Conn. 533
55 A.3d 291

STATE of Connecticut
v.
Daniel HENDERSON.

Nos. 18930, 18931.

Supreme Court of Connecticut.

Argued Sept. 19, 2012.
Decided Nov. 20, 2012.

[55 A.3d 293]

Katharine S. Goodbody, assigned counsel, for the appellant (defendant).

Bruce R. Lockwood, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Seth R. Garbarsky, senior assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH, HARPER and VERTEFEUILLE, Js.

NORCOTT, J.

[307 Conn. 535]The defendant, Daniel Henderson, appeals ¹ from the judgment of the trial court denying his motion pursuant to Practice Book § 43–22² to correct an illegal sentence on the ground that the sentence was imposed without the assistance of counsel in violation of his rights under the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution.³ On appeal, the defendant contends that the trial court improperly concluded, in connection with accepting his nolo contendere pleas to numerous offenses and sentencing him to fifty-four months of imprisonment, that he: (1) had waived his right to counsel; and (2) was not indigent and therefore did not qualify for the services of a public defender. We disagree and, accordingly, affirm the judgment of the trial court.

The record reveals the undisputed background facts and procedural history. The defendant was arrested and charged with numerous offenses on three separate occasions in 2009 and 2010, which resulted in the state bringing criminal proceedings against him in multiple [307 Conn. 536]files in the geographical area number seven courthouse in Meriden, along with the transfer of a violation of probation case from the judicial district of New Britain. On May 24, 2010, the defendant, acting as a self-represented party after being deemed ineligible for public defender services, resolved the various matters with a plea agreement, brokered with the assistance of the trial court, wherein he pleaded nolo contendere to several of the original charges in exchange for a total effective sentence of fifty-four months, or four and one-half years, of imprisonment. ⁴ At the final plea hearing, the defendant was not represented by counsel

[55 A.3d 294]

but, rather, elected to continue to proceed as a self-represented party, with the assistance of a local public defender as standby counsel, after confirmation of his apparent ineligibility for representation by a public defender. After canvassing the defendant pursuant to Practice Book § 44–3,⁵ the trial court accepted the defendant's [307 Conn. 537]plea and sentenced the defendant in accordance with the plea agreement.

On June 17, 2010, the defendant, continuing to act as a self-represented party, filed a motion to correct an illegal sentence. Although the trial court denied the defendant's motion the next day, it also granted his application for, inter alia, an appointment of a special public defender to serve as appellate counsel and a waiver of fees for appeal.⁶ Subsequently, the special public defender reported to the trial court that a good faith basis for the motion to correct existed; see State v. Casiano, 282 Conn. 614, 627–28, 922 A.2d 1065 (2007); and the court vacated its earlier order denying the motion to correct an illegal sentence, restored the motion to the docket and appointed the special public defender to represent the defendant in connection with the motion and any direct appeal therefrom.

Thereafter, the defendant, represented by appointed counsel, renewed his motion to correct an illegal sentence,[307 Conn. 538]contending that his sentence obtained pursuant to the plea agreement was the product of the deprivation of his constitutional right to counsel at sentencing. The court held a hearing on the motion and determined that

[55 A.3d 295]

there was no violation of the defendant's right to counsel at the time of the plea. Specifically, the trial court found that, at that time, the defendant had not been eligible for the services of appointed counsel and had knowingly, intelligently and voluntarily waived his right to proceed with standby counsel. Accordingly, the court denied the defendant's motion to correct an illegal sentence. This appeal followed.⁷

On appeal, the defendant contends that the trial court improperly determined that he had not been deprived of his sixth amendment right to counsel before being subject to a sentence of imprisonment; see, e.g., Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); and thus denied his motion to correct an illegal sentence because, contrary to the findings of the trial court: (1) he was indigent at the time of his sentencing and was entitled to the appointment of counsel under the sixth amendment and General Statutes (Rev. to 2011) § 51–296; ⁸ and (2) he did not waive that [307 Conn. 539]right to counsel prior to electing to proceed as a self-represented party. In response, the state argues that the defendant waived his challenges to the public defender's determination of his indigency under General Statutes (Rev. to 2011) § 51–297,⁹ and that

[55 A.3d 296]

the court's finding that the defendant was not indigent at the time of the plea is not clearly erroneous, given his failure at that time to proffer evidence explaining the large bonds posted on his behalf and thus countering the public defender's representations to the court. The state further contends that the record reveals that the trial court properly exercised its discretion in concluding that the defendant's waiver of his right to proceed [307 Conn. 540]with private counsel was knowing and voluntary following a thorough canvass pursuant to § 44–3. We agree with the state and conclude that the record reveals that: (1) the defendant did not sustain his burden of proving his indigency; and (2) the defendant's waiver of his right to private counsel and the decision to proceed with the plea agreement were knowing, intelligent and voluntary. ¹⁰

Our review of the record demonstrates that the defendant's claims on appeal lack merit and border on frivolous. With respect to the defendant's principal contention, namely, that the court improperly determined that he was not eligible for appointed counsel, we note that the “trial court's assessment of the defendant's offer of proof pertaining to whether he was indigent and was, therefore, eligible for state funded expert assistance, is a factual determination subject to a clearly erroneous standard of review.... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed....

“It is the duty of the state to provide adequate means to assure that no indigent accused lacks full opportunity for his defense.... The right to legal and financial assistance at state expense is, however, not unlimited. Defendants seeking such assistance must satisfy the court as to their indigency.... This has largely been [307 Conn. 541]accomplished through [public defender services] ... which has promulgated guidelines that are instructive as to the threshold indigency determination....

“[Section] 51–297(a) requires the public defender's office to investigate the financial status of an individual requesting representation on the basis of indigency, whereby the individual must, under oath or affirmation, set forth his liabilities, assets, income and sources thereof.... [Section] 51–296(a) requires that, [i]n any criminal action ... the court before which the matter is pending shall, if it determines after investigation by the public defender or his office that a defendant is indigent as defined under this chapter, designate a public defender ... to represent such indigent defendant....Upon a determination by the public defender that an individual is not eligible for its services, the individual may appeal the decision to the court before which his case is pending.” (Citations omitted; internal quotation marks omitted.)

[55 A.3d 297]

State v. Martinez, 295 Conn. 758, 781–83, 991 A.2d 1086 (2010).

Even if we assume, without deciding, that the discussions regarding the defendant's ineligibility for public defender services at the hearing in which the trial court accepted the defendant's plea constituted this appeal from the adverse indigency determination by the public defender pursuant to § 51–296; see State v. Flemming, 116 Conn.App. 469, 482–83, 976 A.2d 37 (2009); we conclude that the trial court's determination at the time of plea that the defendant was not indigent, and therefore was ineligible for public defender services, was not clearly erroneous. In the absence of a proffer to the contrary by the defendant, the court reasonably relied on the representations of the local public defender that the defendant was not indigent because he had been able to post $380,000 in bonds to that point in the proceedings and voluntarily had elected not to post more in order to obtain credit for the incarceration that he knew he was facing. See, e.g., [307 Conn. 542]State v. Michael J., 274 Conn. 321, 335, 875 A.2d 510 (2005) (noting that attorneys are “officers of the court, and when they address the judge solemnly upon a matter before the court, their declarations are virtually made under oath” [internal quotation marks omitted] ).

Specifically, the transcript of that hearing reveals that, rather than clarifying any misconceptions that the court may have harbored at that point about his indigency, the defendant—whom the record reveals to be articulate, and willing to and capable of expressing his position to the court on a variety of matters—remained silent when asked about the accuracy of the public defender's factual representations, and then simply agreed with the trial court's...