State v. T.R.D.

• Decision Date: 25 March 2008
• Docket Number: No. 17865.,17865.
• Citation: 942 A.2d 1000,286 Conn. 191
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. T.R.D.<SMALL><SUP>1</SUP></SMALL>

942 A.2d 1000

286 Conn. 191

STATE of Connecticut v. T.R.D.¹

No. 17865.

Supreme Court of Connecticut.

Argued September 7, 2007.

Decided March 25, 2008.

Mary Beattie Schairer, special public defender, for the appellant (defendant).

Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Terence D. Mariani, senior assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA and SCHALLER, Js.²

VERTEFEUILLE, J.

The defendant, T.R.D., appeals from the judgment of conviction, rendered after a jury trial, of failing to register as a sex offender in violation of General Statutes (Rev. to 2003) § 54-251³ and General Statutes § 54-257.⁴ He was sentenced to three years imprisonment, execution suspended after one year, and five years probation.

On appeal,⁵ the defendant claims that: (1) the trial court improperly failed to canvass the defendant adequately in accordance with Practice Book § 44-3⁶ before permitting him to proceed to trial without counsel, in violation of his constitutionally protected right to counsel; (2) the trial court improperly instructed the jury regarding the elements of the crime of which the defendant was ultimately convicted; (3) he was deprived of his constitutional due process rights when he was arrested before the state took further reasonable steps to contact him; and (4) prosecutorial impropriety in the state's closing argument deprived him of his constitutional right to a fair trial. We agree with the defendant's first claim, which is dispositive of this appeal. Accordingly, we reverse the judgment of the trial court and remand the case for a new trial. We also address the merits of the state's second and third claims because they are likely to arise on retrial. See Burns v. Hanson, 249 Conn. 809, 830, 734 A.2d 964 (1999). Because we do not believe that the defendant's claim of prosecutorial impropriety is likely to arise on retrial, we do not reach this issue.

The following facts and procedural history are relevant to this appeal. On April 2, 1998, the defendant entered pleas of nolo contendere to charges of sexual assault in the first degree in violation of General Statutes (Rev. to 1997) § 53a-70 (a)(2) and risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21(2). The court accepted the defendant's pleas and sentenced him to a total effective term of twelve years imprisonment, execution suspended after five years, followed by ten years of probation.

The defendant was released from incarceration on November 15, 2002. Prior to being released from incarceration, the defendant met with the coordinator for sex offender registration at the correctional institution where he was being held, who informed the defendant of his responsibilities under the Connecticut sex offender registration law, commonly referred to as Megan's Law, General Statutes § 54-250 et seq. One such responsibility is to return address verification letters, which are sent by the sex offender registry unit (unit) of the department of public safety every ninety days. Prior to his release from incarceration, the defendant signed several forms stating that he understood his responsibilities under the registration law, and further, that he understood that noncompliance with these responsibilities would constitute a crime.

The unit sent the first letter to the defendant in its first round⁷ of ninety day address verification letters on February 8, 2003, approximately ninety days after the defendant's release from incarceration. Although the defendant did not return the first letter sent by the unit for address verification purposes, he did return the second letter, which the unit received on February 27, 2003. The defendant was thus in compliance with his registration responsibilities for the first ninety day period. The unit sent the first letter in its next round of address verification letters on May 23, 2003. When the unit did not receive a response from the defendant, it subsequently sent two additional address verification letters. After the unit did not receive a response to any of the three letters it sent in its address verification attempts for the period beginning May 23, 2003, the defendant's status changed to "failure to verify his address" and his address was considered unknown. The defendant was arrested for failure to comply with the registration requirements on February 24, 2004.

On June 9, 2004, the court appointed Attorney Christopher Sheehan to represent the defendant in response to the defendant's request for a public defender. On May 2, 2005, the defendant informed the court that he did not want Sheehan to represent him, citing his disappointment with Sheehan's lack of communication with the defendant. The judge encouraged the defendant to resolve his differences with his appointed attorney, and ordered a continuance of the case. On September 7, 2005, the defendant filed a pro se motion for a speedy trial. At a pretrial hearing on September 19, 2005, Sheehan advised the court that he did not believe it was prudent for the defendant to file the speedy trial motion, and the court agreed. The defendant decided to move forward with the motion despite Sheehan's advice, and the court granted the motion on September 19, 2005.

Sheehan began conducting voir dire for the defendant's jury trial on September 26, 2005, and the defendant made no mention of representing himself. Jury selection resumed on September 30, 2005, and on that date, the defendant again informed the court that he no longer wanted Sheehan to represent him. The court discouraged the defendant from dispensing with his court-appointed attorney, and strongly encouraged the defendant to, at a minimum, retain Sheehan as standby counsel. The defendant continued to insist that he wanted to represent himself, noting: "I believe that my lawyer is not effective in representing me and I'm not gonna keep him." The defendant requested that the judge appoint a different attorney. The court declined to do so. The court then canvassed the defendant concerning his decision to waive his right to counsel and proceed pro se. The defendant indicated that he understood the implications of his decision to represent himself as outlined by the court. When the defendant again declined to have Sheehan serve as standby counsel, the court excused Sheehan from the proceedings. The defendant then conducted voir dire pro se, and subsequently represented himself at trial. The judge briefly canvassed the defendant again on October 3, 2005, minutes before opening statements were to begin. The case was tried to a jury, which found the defendant guilty of failing to register as a sex offender in accordance with §§ 54-251 and 54-257. On December 5, 2005, the trial court sentenced the defendant to three years incarceration, execution suspended after one year, and five years probation. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

On appeal, the defendant first claims that his waiver of counsel could not be found knowing and intelligent in the absence of anything in the record demonstrating that the defendant knew the possible term of incarceration, which implicates the defendant's right to counsel guaranteed by the sixth amendment to the United States constitution.⁸ Specifically, the defendant claims⁹ that his waiver of counsel was not knowing, intelligent and voluntary because the trial court failed to inform him of the range of possible penalties that he would face upon conviction. The state concedes that the court's canvass did not inform the defendant that the offense with which he was charged carried a sentence of one to five years imprisonment. The state nevertheless contends that the record reveals that "the defendant clearly and unequivocally stated that he wanted to proceed pro se rather than be represented by his appointed public defender, that he was literate, competent and understanding, and that he voluntarily exercised his informed free will." We agree with the defendant.¹⁰

The following additional facts are relevant to this claim. In its canvass,¹¹ the trial court asked the defendant a number of questions regarding, for example, whether the defendant had considered the consequences of self-representation and whether he understood the practical consequences of proceeding pro se (e.g., that the defendant would have to conduct cross-examination by himself and decide whether to testify). The court also informed the defendant that he did not believe the defendant's decision to proceed without an attorney was a wise one.¹² The state concedes however that the court never specifically advised the defendant of the range of possible penalties he faced upon conviction.

At the outset, we identify the applicable standard of review. "We review [a] trial court's determination with respect to whether the defendant knowingly and voluntarily elected to proceed pro se for abuse of discretion." State v. D'Antonio, 274 Conn. 658, 709, 877 A.2d 696 (2005).

We begin with several well settled principles regarding the constitutional right of an accused to represent himself. "The right to counsel and the right to self-representation present mutually exclusive alternatives. A criminal defendant has a constitutionally protected interest in each, but since the two rights cannot be exercised simultaneously, a defendant must choose between them. When the right to have competent counsel ceases as the result of a sufficient waiver, the right of self-representation begins.... Put another way, a defendant properly exercises his right to self-representation by knowingly and intelligently waiving his right to representation by counsel.... State v. Wolff, 237 Conn. 633, 654, 678 A.2d 1369 (1996). When an accused manages his own defense, he relinquishes, as a purely factual matter, many of...