350431 v. Warden (2013)

MEMORANDUM OF DECISION

The petitioner, Gene Newland, brings this petition for a writ of habeas corpus claiming that his right to counsel under the sixth amendment of the United States Constitution and article first, § 8, of the Connecticut Constitution was violated.   By way of relief, the petitioner seeks an order of this court vacating his convictions in State v. Newland, Docket No. CR 07 0132036 and remanding the case to the criminal trial court for a new trial.   The court finds the issues for the petitioner.

After a trial by jury, the pro se petitioner was convicted of sexual assault in the first degree in violation of General Statutes § 53a–70(a)(2) and risk of injury to a child in violation of General Statutes § 53–21(a)(2).   On August 7, 2009, the trial court sentenced the petitioner to a total effective sentence of ten years followed by eight years of special parole.   The petitioner did not appeal his conviction.

On February 11, 2010, the petitioner filed a pro se petition in this case.   The petitioner requested that counsel be appointed to represent him in this habeas case and all fees be waived due to his indigency.   On February 18, 2010, the court granted the petitioner's application for a waiver of the entry fee.   On March 31, 2010, the public defender's office notified the court of the petitioner's eligibility for appointment of counsel and filed an appearance on his behalf.   On January 9, 2012, the court appointed Special Public Defender James O. Ruane to represent the petitioner in the present matter.   On July 10, 2012, the petitioner filed an amended petition.   In the amended petition, the petitioner asserts that the trial court's canvass was inadequate to establish a knowing and voluntary waiver of his right to counsel and the trial court's finding that he had knowingly and voluntarily waived his right to counsel was erroneous.   On August 21, 2012, the respondent filed a return.   The respondent's return included a special defense of procedural default on the ground that the petitioner's claims should have been raised on a direct appeal and that the petitioner had not properly asserted cause and prejudice.   The petitioner's reply to the return denied the special defense, stating, among other things, that because his sixth amendment right to counsel was violated cause and prejudice are presumed.   In making this argument, the petitioner cited to Dennis v. Commissioner of Correction, 134 Conn.App. 520, 39 A.3d 799 (2012).

Only a month prior to the scheduled habeas trial on November 13, 2012, the respondent filed a motion for summary judgment on his claim that the petitioner's action was barred by the doctrine of procedural default.   On December 3, 2012, the petitioner filed an opposition to the respondent's motion.   On the day of trial, on December 10, 2012, the habeas court denied the motion for summary judgment without prejudice, allowing the respondent to reassert the claim in his post-trial brief.

At the habeas trial, the petitioner presented the testimony of himself, Raymond Canning, the public defender in Danielson, and Brian Carlow, Deputy Chief Public Defender of the Division of Public Defender Services, and submitted numerous exhibits.   The respondent did not call any witnesses nor introduce any exhibits.   Both parties filed post-trial briefs addressing the merits of the petitioner's claims and the respondent's special defense of procedural default.

Based on the evidence adduced at trial, the court finds the following facts.

On or about May 17, 2007, the petitioner was arrested and charged with sexual assault in the first degree in violation of § 53a–70(a)(2) and risk of injury to a child in violation of § 53–21(a)(2).   At his arraignment, the petitioner was represented by the public defender for “bond only,” and a bond of $10,000 was imposed.   The petitioner's friend made the bond payment for the petitioner, and he was released pending trial.   The case was transferred to Part A and continued.   On June 15, 2007, without a public defender present in the courtroom, the state reported that the public defender's office deemed the petitioner ineligible for its services.   The court continued the case to July 27, 2007 to allow the petitioner to retain counsel.   The public defender's office did not inform the petitioner that he had a right to appeal its ineligibility decision to the court pursuant to General Statutes § 51–297(g).¹  Nor did the court or the state inform the petitioner of this statutory right on the record.   The petitioner did not appeal the ineligibility decision to the trial court.

The petitioner appeared over the next several months and received continuances for the purpose of hiring counsel.

At his court appearance on November 16, 2007, the petitioner reported that he was trying to refinance his property in order to obtain counsel.   The court entered not guilty pleas and a jury election on the petitioner's behalf and continued the case.

On January 11, 2008, the state informed the trial court that the petitioner would be representing himself.   The petitioner responded that he was still trying to hire counsel but that he was working two jobs and could not afford to hire an attorney.   The petitioner reported that he did not have the $2,500 necessary for a minimum retainer to pay private counsel to accept his case.   In response to the court's inquiry as to whether he had applied for a public defender, the petitioner explained that his application had been denied because he owned property.   The court then continued the matter, but did not inform the petitioner that he could appeal the public defender's decision.   Nor did the state tell the petitioner that he could appeal the ineligibility decision to the trial court.

At the next several court appearances, the case was continued for the parties to provide and receive discovery.

On June 2, 2008, the state again reported that the petitioner would represent himself.   In response to the trial court's question about his self-representation, the petitioner explained:  “I have no money to do otherwise.   If I had money, I would [hire counsel].   I'm trying to come up [with] the money.   It's—I'm barely making ends meet as it is right now.   Believe me, if I could afford a lawyer, I would.   I was denied a public defender because I own the property that my family lives in.”   The trial court continued the matter.

On July 18, 2008, the petitioner again stated that he needed time to hire counsel.   The court continued the matter to August 15, 2008 and gave the petitioner a stern warning that he needed to retain counsel because the case would be placed on the jury list.

On August 15, 2008, the state made a plea offer to the petitioner, and the court gave him a month to decide whether to accept or reject it.   The petitioner rejected the state's offer on September 5, 2008, and the petitioner reported that he was still trying to retain counsel.

On October 17, 2008, the state reported that the petitioner still had not hired counsel.   The court asked the petitioner if he was close to hiring an attorney.   The petitioner reported that he had just lost one of his two jobs and was nowhere close to hiring private counsel despite his numerous attempts to do so and asked the court if he could get some help to prepare his case for trial.   The court inquired about the petitioner's financial status, and the petitioner explained that he was deemed ineligible for a public defender due to the fact that he owned property, which was in foreclosure.   The court explained that the decision whether the petitioner was eligible for public defender services is made by the public defender's office and suggested that the petitioner reapply.   The court did not inform the petitioner that he could appeal the denial of services to the court.   Nor did the state explain this remedy.   Standby counsel was not appointed by the court.

On December 5, 2008, the state reported that the petitioner was again deemed ineligible for the services of the public defender.   Again, no public defender appeared in court with the petitioner to inform the court of this decision.   Again, no one informed the petitioner that he could appeal the public defender's ineligibility determination to the trial court.   The petitioner explained that he had only one job, having lost one, that his job paid only $8.35 per hour and that he had no other available funds to hire counsel.   The court placed the case on the trial list for March 2009.

On April 15, 2009, the parties appeared for jury selection.   The trial court inquired of the petitioner as to the status of his attempts to obtain counsel.   The petitioner reported that he had been trying to hire an attorney but still could not afford to hire one.   He informed the court that he had been denied public defender services twice due to the fact that he owns property, which the public defender's office told him “automatically disqualified” him for services.   The petitioner informed the court that the property was encumbered by a mortgage and was in foreclosure.

The trial court asked the petitioner:  “So implicit in what you're telling me is you're waiving your right to have counsel represent you.”   To which the petitioner responded:  “At present, yes.   Unfortunately, I have no other choice.”   The court then proceeded to question the petitioner concerning what the court deemed his “implicit” waiver.   In response to these questions, the petitioner stated that he had a tenth grade education, worked at a gas station/market making $300 to $350 per week, no longer lived in his property, where his family was residing, and that he could not provide for his family since he lost one of his two jobs.   He also stated that he had no other family resources.

When asked if he believed if he had the kind of training and skill to represent himself on the charges at trial, the petitioner stated:  “Honestly, no, I don't feel I possess that training.   I didn't go to school for it, Your honor, so unfortunately, I don't.   But I'm at the point where I have no other choice.”   The petitioner stated that he understood that the case had been pending for twenty-three months and that it was not going away and “had to be tried sometime.”   He also admitted that he had been provided a reasonable amount of time to retain counsel.   In terms of what he did to obtain counsel, he explained that he went to legal aid and to colleges, and called numerous lawyers, but as soon as he mentioned the charges they would “hang up on [him].”   He admitted that he had no training or skill to try the case and again stated that he “[had] no choice” but to proceed without counsel.

The court found that the petitioner “waived his right to be represented by counsel” and explained:  “I'm disappointed that the Court is asked to make this finding, but I don't see any alternative.   The matter has been on the jury list, it's come up 20 times, and it's been continued 19 times.   We have a jury here this morning and they're ready to hear the case.”   No standby counsel was appointed.

On May 14, 2009, after a jury trial, the petitioner was convicted on both charges.

At the petitioner's sentencing, on August 7, 2009, he remained unrepresented.   In his comments to the court, the petitioner argued that he had been “wrongfully denied counsel” and that he believed that he “could have won this case if [he] would have had a counsel.”   The court then sentenced the petitioner to a total effective sentence of ten years' incarceration followed by eight years of special parole.   The court told the petitioner that he had the right to appeal his conviction which needed to be filed within twenty days.   No appeal was filed by the petitioner.

The evidence produced at the habeas trial revealed that between 2007 and 2009, the petitioner had two, and later one, minimum wage job.   At the time of his trial, he had only one job and was making $300 to $350 per week.   He had no available funds in any bank accounts.   He owned a residential property located at 44 Putnam Pike, Dayville, Connecticut.   That property was subject to a mortgage in the amount of approximately $117,000, and prior to his 2007 arrest had a fair market value of $168,000.   As of July 22, 2008 and during the petitioner's criminal trial, the petitioner's property was subject to a foreclosure action, based on the failure of the petitioner to make payments on his mortgage.   That foreclosure action was pending in the Judicial District of Windham, at Putnam and captioned CitiBank N.A. as Trustee for the Benefit of the Certificate Holders of CWABs, Inc., and Asset–Backed Certificates Serious 2007–QHI v. Gene P. Newland Jr.

Public Defender Raymond Canning of the Danielson public defender's office had no recollection of the petitioner's case and no records of the petitioner's applications or financial affidavits.   Attorney Canning testified as to the general practices of his office regarding its eligibility determinations for public defender services in 2007 to 2009, which were made pursuant to the Division of Public Defender Service guidelines.   According to Attorney Canning, although owning property does not automatically disqualify a defendant from obtaining services, the relevant issue is the amount of equity in the property.

Attorney Canning stated that if the office finds a defendant ineligible for services, the defendant should be advised that he or she can appeal that decision to the trial court.   The court finds that the petitioner in this case was not advised of his right to appeal the public defender's ineligibility determination by the public defender's office or anyone else.   The record reveals that such advice was not provided to the petitioner on the record, and the petitioner testified credibly that the public defender did not inform him of his right to appeal.   In addition, Attorney Canning had no recollection of this case or this petitioner, and his office had no records of the petitioner's applications in this matter.   Moreover, except for his arraignment, no public defender ever appeared in court with the petitioner to report the petitioner's ineligibility for services, contrary to the policy of the Chief Public Defender's office that they do so.

Attorney Brian Carlow, the Deputy Chief Public Defender for the Division of Public Defender Services, testified credibly about the statewide process for appointing public defenders and the eligibility guidelines in 2007 through 2009.   In addition to holding this position for six years, Attorney Carlow had previously been a public defender for approximately twenty years in various jurisdictions in Connecticut.   One of his responsibilities as the Deputy Chief Public Defender is to determine eligibility disputes raised by the state or prospective clients or to answer questions from public defender offices concerning eligibility determinations.   All of the regional public defender offices report to the Chief Public Defender, and there is no jurisdictional autonomy of individual jurisdictions, generally or pertaining to eligibility matters.

If a defendant indicates that he wishes to have a public defender appointed, the defendant is required to fill out a financial affidavit, which includes inquiries regarding cash on hand and in the bank, and whether the defendant owns real estate, and whether there is a mortgage on the property as well as its present value.   The applications are retained as part of the defendant's file but are considered confidential unless there is an appeal to the trial court of a denial of eligibility.   In such circumstances, the application is provided to the trial court.

In determining whether a defendant is eligible for public defender services, the nature of the crime and the cost to hire private counsel in that jurisdiction should be taken into account.   The more serious and complex the charges, the more costly it would be to retain private counsel.   If the defendant meets the income eligibility requirements, there is a presumption that he or she would be eligible for services.   If the defendant fails to meet those income guidelines, there is a presumption that he or she is ineligible for services.   These presumptions are, however, rebuttable.

Applying the income guidelines to this case, which Attorney Carlow stated would be considered a serious and complex case given the charges, and based on the petitioner's income, the petitioner would have easily met the income eligibility guidelines and therefore, have been presumed eligible for services.

As to how owning real estate factored into a defendant's eligibility for services, Attorney Carlow testified that merely owning real property does not result in an automatic disqualification for services.   The key issue with respect to the ownership of real property is whether there is “readily available” equity in the property.   Whether a defendant had equity in real estate was less of a factor in 2007 through 2009 than it was in the 1980s and 1990s when the real estate market was strong and equity in property was readily accessible.   In 2007 through 2009, however, having equity in real estate was less of a factor for eligibility determinations because that equity was not deemed readily accessible to defendants.   Thus, Attorney Carlow testified that having $50,000 to $60,000 in equity in 2008 and 2009 should not have been a significant factor in an eligibility determination.   In addition, Attorney Carlow stated that if the property had some remaining equity but was subject to a pending foreclosure action, any such equity would not be considered “readily accessible” and thus, would be unlikely to be considered in determining eligibility for services.   Defendants are not required to await the conclusion of a foreclosure action before becoming eligible for services.

The public defenders inform the court whether the defendant is eligible for services, but the court decides whether to appoint counsel.   Public defenders are obliged to inform defendants of their right to appeal an ineligibility decision to the court.   Public defenders should always be in court with the defendants when reporting on their eligibility for services.

Based on the testimony produced at the habeas trial, the court finds that the petitioner had easily met the public defender's income eligibility requirements for a serious felony charge and was, therefore, presumed eligible for services.   The Danielson public defender's office erred in denying the petitioner's application based on the fact that he owned property because the equity was limited and not readily accessible and the property was encumbered by an ongoing foreclosure action.   Thus, the real property did not provide the defendant with any readily accessible funds to hire private counsel.

DISCUSSION

I.

The respondent asserts that the petitioner's claims are barred under the doctrine of procedural default because he failed to take a direct appeal.   The petitioner asserts that he meets the cause and prejudice standard and, therefore, is not procedurally defaulted from pursuing his claims in this habeas action.   Because this issue of procedural default has been described by the Supreme and Appellate Courts as a “threshold” or “preliminary” issue in a habeas case, it must be considered prior to the court's consideration of the merits.  Orcutt v. Commissioner of Correction, 284 Conn. 724, 937 A.2d 656 (2009).   The court agrees with the petitioner that his claims are not barred due to his failure to raise them on direct appeal.

“[A] petitioner who raises a constitutional claim for the first time in a habeas proceeding must show:  (1) cause for the procedural default, i.e., for the failure to raise the claim previously;  and (2) prejudice resulting from the alleged constitutional violation.   In the absence of such a showing, a court will not reach the merits of the claim.”  Dennis v. Commissioner of Correction, supra, 134 Conn.App. 527.  “The cause and prejudice standard is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvert [e]nce or ignorance ․ Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition ․ [T]he existence of cause for a procedural default must ordinarily turn on whether the [petitioner] can show that some objective factor external to the defense impeded counsel's efforts to comply with the [s]tate's procedural rule ․ [For example] a showing that the factual or legal basis for a claim was not reasonably available to counsel ․ or ․ some interference by officials ․ would constitute cause under this standard ․ Cause and prejudice must be established conjunctively ․ If the petitioner fails to demonstrate either one, a trial court will not review the merits of his habeas claim.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Crawford v. Commissioner of Correction, 294 Conn. 165, 191, 982 A.2d 620 (2009).

With respect to the first prong of the test, good cause, a “[v]iolation of the right to counsel is an external error.”  Dennis v. Commissioner of Correction, supra, 134 Conn.App. 532.  “[A] violation of petitioner's right to counsel ․ must be seen as an external factor, i.e., as one imputed to the State because the constitutional mandate [guaranteeing effective assistance of counsel] is addressed to the action of the State in obtaining a criminal conviction through a procedure that fails to meet the standard of due process of law ․” (Citation omitted;  internal quotation marks omitted.)  Restrepo v. Kelly, 178 F.3d 634, 640 (2d Cir.1999).

In this case, the court finds that the petitioner did not want to represent himself in his criminal trial but rather desperately wanted to have counsel represent him.   The petitioner could not afford to hire private counsel and twice requested, and was twice denied, the services of the public defender's office.   He made numerous attempts to hire counsel and sought assistance from law schools and legal aid.

Pursuant to General Statutes § 51–297(a),² the public defender's office is the state entity required by law to investigate the financial status of individuals requesting legal representation on the basis of indigency.   In fact, it is the “only entity” upon which a statutory duty is imposed to investigate a claim of indigency and determine if a defendant is eligible for services.  State v. Flemming, 116 Conn.App. 469, 481, 976 A.2d 37 (2009).   Unless the petitioner appeals an ineligibility determination to the trial court, the trial court is entitled to rely on the determination and investigation undertaken by the public defender's office.  Id., 483 (“[a]bsent any statutory or other duty to conduct further investigation into the public defender's indigency determination or any cognizable appeal of the determination by the defendant, the court was entitled to accept the report of the public defender”).

The Danielson public defender's office erroneously determined that the petitioner was not entitled to the legal services of the public defender's office because he owned real property.   Although the property had some equity, the equity was not readily available to provide liquid funds for the petitioner's defense.   While it is the defendant's burden to demonstrate his indigency, it is clear from this record that he attempted to do so on a number of occasions on the record by explaining his financial circumstances, including the fact that the property was in foreclosure and he worked two and then one low paying job.

Although the petitioner could have appealed the public defender's ineligibility determination to the trial court, no one advised him of this legal remedy.  State v. Flemming, supra, 116 Conn.App. 483 (a defendant representing himself is not expected to be aware of the statutory remedy to appeal to the trial court from an ineligibility determination).   Although the petitioner did not formally appeal the public defender's decision to the trial court, he continuously made his financial condition known to the court on the record, including the fact that his property was in foreclosure.

As discussed subsequently in more detail, the court finds that the petitioner did not knowingly, intelligently and voluntarily waive his right to counsel because the public defender's determination that the petitioner was ineligible for legal services was erroneous.³  Accordingly, his right to counsel was violated, which is an external error excusing the petitioner's failure to raise his claims previously.

As to the prejudice prong, “actual prejudice is presumed when the petitioner's right to counsel is violated,” because “[t]he right to counsel is so basic that its violation mandates reversal even if no particular prejudice is shown and even if there is overwhelming evidence of guilt.”  (Internal quotation marks omitted.)  Dennis v. Commissioner of Correction, supra, 134 Conn.App. 536.   Accordingly, the petitioner's claims are not barred by procedural default.

II.

Turning to the merits of the petitioner's petition, the petitioner asserts that his waiver of his right to counsel was not knowing, intelligent and voluntary.   The respondent asserts that the trial court's canvass complied with the Practice Book requirements and that the trial court had no obligation to conduct an independent indigency evaluation.   The court agrees with the petitioner.

“The right to be represented by counsel, on direct appeal from a conviction as well as at the criminal trial, is among the most fundamental of rights ․ As a general matter, it is through counsel that all other rights of the accused are protected:  Of all of the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have ․ The actual or constructive denial of the assistance of counsel altogether, whether at the trial level or in the first appeal as of right, is constitutional error ․ Actual denials of counsel include the court's failing to grant a defendant's request for assignment of counsel ․ and the court's allowing counsel to withdraw without appointing new counsel ․” (Citations omitted;  internal quotation marks omitted.)   Restrepo v. Kelly, supra, 178 F.3d 639, citing Penson v. Ohio, 488 U.S. 75, 84–85, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).

“Connecticut ‘has had a long history of recognizing the significance of the right to counsel, even before that right attained federal constitutional importance ․ Not only was Connecticut the first state to adopt the public defender system;  State v. Hudson, 154 Conn. 631, 635, 228 A.2d 132 (1967);  but the right to counsel was secured to criminal defendants in this state long before the mandate of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 [ (1962) (holding that the fourteenth amendment incorporated the sixth amendment right to counsel) ] ․ Spring v. Constantino, 168 Conn. 563, 566–67 n.2, 362 A.2d 871 (1975).’  (Citations omitted;  internal quotation marks omitted.)  State v. Stoddard, 206 Conn. 157, 164–65, 537 A.2d 446 (1988).”  State v. Piorkowski, 243 Conn. 205, 217, 700 A.2d 1146 (1997);  see also General Statutes § 51–296(a) (“[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 ․ designate a public defender ․ to represent such indigent defendant”).

“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. Henderson, 307 Conn. 533, 546, 55 A.3d 291 (2012).  “When an accused manages his own defense, he relinquishes, as a purely factual matter, any of the traditional benefits associated with the right to counsel.   For this reason, in order to represent himself, the accused must knowingly and intelligently [forgo] those relinquished benefits ․” (Citation omitted;  internal quotation marks omitted.)  Dennis v. Commissioner of Correction, supra, 134 Conn.App. 533.  “An accused who collaterally attacks a judgment of conviction on the ground of an unconstitutional deprivation of the assistance of counsel must prove nonwaiver by a preponderance of the evidence.  Moore v. Michigan, [355 U.S. 155, 161–62, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957) ];  Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).”  Douglas v. Warden, 218 Conn. 778, 788, 591 A.2d 399 (1991).

“The importance of the right to counsel is reflected in the precautions required when a defendant seeks to relinquish it ․ [O]ur Supreme Court has determined that a trial court must indulge in every reasonable presumption against waiver of the right to counsel ․ Our Supreme Court has stated:  ‘[W]e harbor no illusions that a defendant's decision to waive counsel and [to] proceed pro se generally will lead to anything other than disastrous consequences ․’ (Internal quotation marks omitted.)  State v. Jones, 281 Conn 613, 647, 916 A.2d 17 (2007).   Additionally, our rules of practice require that a court accept a waiver of the right to counsel only after it is satisfied that the defendant ‘[h]as been made aware of the dangers and disadvantages of self-representation.’  (Emphasis added.)  Practice Book § 44–3(4).”  (Citations omitted;  internal quotation marks omitted.)  State v. Flanagan, 102 Conn.App. 105, 120, 925 A.2d 385 (2007), rev'd on other grounds, 293 Conn. 406, 978 A.2d 64 (2009).  “[T]he determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused ․ This important decision rests within the discretion of the trial judge.”  (Internal quotation marks omitted.)  State v. Bangulescu, 80 Conn.App. 26, 43, 832 A.2d 1187, cert. denied, 267 Conn. 907, 840 A.2d 1171 (2003).

Pursuant to Practice Book § 44–3, before the trial court may accept a defendant's waiver of the right to counsel, it must canvass the defendant.   “The multifactor analysis of [Practice Book § 44–3] ․ is designed to assist the court in answering two fundamental questions:  first, whether a criminal defendant is minimally competent to make the decision to waive counsel, and second, whether the defendant actually made that decision in a knowing, voluntary and intelligent fashion.”  State v. Collins, 299 Conn. 567, 611–12, 10 A.3d 1005 (2011).  “The purpose of the canvass requirement is not to encumber the trial judge with the onerous task of engaging in a meticulously formulated dialogue about every conceivable facet of the state's case ․ [A] defendant's constitutional right is not violated as long as the court's canvass, whatever its form, is sufficient to establish [in the court's opinion] that the defendant's waiver was voluntary and knowing ․ In other words, the court may accept a waiver of the right to counsel ․ if the record is sufficient to establish that the waiver is voluntary and knowing.”   (Internal quotation marks omitted.)  State v. Coleman, 83 Conn.App. 672, 686, 851 A.2d 329, cert. denied, 271 Conn. 910, 859 A.2d 571 (2004).

As discussed supra, the Danielson public defender's office erroneously determined that the petitioner did not qualify for its services because he owned real estate.   Given the seriousness of the charges, complexity of the petitioner's case, and his limited income and lack of any liquid funds, the petitioner was presumed eligible for the services of a public defender under the standard guidelines of the Office of the Chief Public Defender, which applies to all districts, including Danielson.   The petitioner's property was not only encumbered by a sizeable mortgage but was also in foreclosure by the time he applied for the public defender's services the second time in December 2008 and at the time of his trial.   Even if the limited equity in property was considered accessible, which Attorney Carlow testified it should not be under the circumstances as they existed in 2008–2009, any such equity was encumbered by the ongoing foreclosure action, and therefore, was not readily available or accessible to cover the costs of the petitioner's defense in this case.

Moreover, as the record clearly demonstrates, the petitioner did not choose to represent himself.   He repeatedly expressed his desire to be represented by counsel, twice applied for the services of a public defender and continuously detailed his increasing inability to afford private counsel on the record.   The court reluctantly found that the petitioner “implicitly waived” his right to counsel.   The petitioner did so because he “had no other choice.”   Although the trial court did canvass the petitioner pursuant to Practice Book § 44–3, it too relied on the erroneous determination of the public defender's office to deny services.   Had the trial court known that the eligibility determination was in error, it likely would not have found that petitioner had waived his right to counsel

The court finds that the petitioner did not knowingly, intelligently and voluntarily waive his right to counsel because he mistakenly believed that he did not qualify for the public defender's services and only acquiesced to representing himself because he could not afford or otherwise retain private counsel.   Had the petitioner been properly informed of his right to the services of a public defender, he would have accepted those services.   Thus, but for the public defender's erroneous eligibility determination, the petitioner would not have “implicitly” or otherwise waived his right to counsel and the trial court would not have accepted the “implicit” waiver had it known of the petitioner's eligibility.

The petitioner's case is distinguishable from both State v. Flemming, supra, 116 Conn.App. 469, and State v. Henderson, supra, 307 Conn. 533, cases upholding a defendant's implicit waiver of his right to counsel.   In Flemming, the defendant did not want to apply for the services of the public defender because of a prior negative experience with a public defender.   After being given numerous continuances to retain counsel to no avail and haphazardly filling out an application for the services of the public defender, which resulted in a determination of ineligibility, the court found that the defendant had “effectively waived [his] right to the assistance of counsel.”   State v. Flemming, supra, 116 Conn.App. 476.   In Henderson, the defendant, who had been deemed ineligible for the public defender's services, was given several continuances to retain counsel and was found to have waived his right to counsel after appearing without counsel and expressing his desire to resolve his criminal matters pursuant to the plea agreement he negotiated with the state.   The public defender represented to the court that the defendant “[had] led [him] to understand that the reason he [was] without counsel [was] his own choosing.”  State v. Henderson, supra, 307 Conn. 542 n.11. The defendant did not disagree with the public defender's comments.

Unlike the defendants in Flemming and Henderson, the petitioner repeatedly expressed his desire to be represented by an attorney and made various efforts to retain counsel, including applying for the services of the public defender two times.   Additionally, on more than one occasion he explained to the court why he could not afford to hire private counsel.   Absent from the record in both Flemming and Henderson are any facts suggesting that either defendant may have been eligible for the services of the public defender despite having been deemed ineligible.   In both instances, the public defender's office found the defendants ineligible due to the fact that they had posted high bonds, and neither defendant proffered any evidence of their indigency like the petitioner did in his case.  State v. Henderson, supra, 541 ($380,000 bond posted);  State v. Flemming, supra, 475 ($200,000 bond posted).

CONCLUSION

For the foregoing reasons, the petition for a writ of habeas corpus is granted.   The petitioner's conviction in State v. Newland, Docket No. CR 07 0132036 is vacated and the matter is returned to the criminal court for further proceedings.   Assuming the petitioner remains indigent, if he is retried, counsel should be appointed to represent him.

So ordered.

Cobb, J.

FOOTNOTES

FN1. General Statutes § 51–297(g) provides:  “If the Chief Public Defender or anyone serving under the Chief Public Defender determines that an individual is not eligible to receive the services of a public defender under this chapter, the individual may appeal the decision to the court before which the individual's case is pending.”.  FN1. General Statutes § 51–297(g) provides:  “If the Chief Public Defender or anyone serving under the Chief Public Defender determines that an individual is not eligible to receive the services of a public defender under this chapter, the individual may appeal the decision to the court before which the individual's case is pending.”

FN2. Statutes § 51–297(a) provides, in relevant part:  “A public defender ․ shall make such investigation of the financial status of each person ․ who has requested representation based on indigency, as he deems necessary.”.  FN2. Statutes § 51–297(a) provides, in relevant part:  “A public defender ․ shall make such investigation of the financial status of each person ․ who has requested representation based on indigency, as he deems necessary.”

FN3. In his post-trial brief, the respondent argues that a claim that the public defender's office erroneously determined that the petitioner was not indigent is not properly before this court.   The court disagrees.  “An application for a writ of habeas corpus is a pleading in the nature of a complaint, and the return is in the nature of an answer.  Aray v. Warden, 187 Conn. 324, 332, 445 A.2d 916 (1982).   We, thus, treat the petition, return and reply as we would other civil pleadings.   We are mindful of the principle that pleadings should be construed broadly and realistically, rather than narrowly and technically ․ [A pleading] must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties.”  (Internal quotation ‘marks omitted.)  Taylor v. Commissioner of Correction, 94 Conn.App. 772, 785, (2006), rev'd in part on other grounds, 284 Conn. 433, 936 A.2d 611 (2007).   Construing the petitioner's amended petition and reply broadly, the court finds that the correctness of the public defender's indigency determination goes directly to the petitioner's claim that he did not knowingly, intelligently and voluntarily waive his right to counsel and thus, is properly before the court..  FN3. In his post-trial brief, the respondent argues that a claim that the public defender's office erroneously determined that the petitioner was not indigent is not properly before this court.   The court disagrees.  “An application for a writ of habeas corpus is a pleading in the nature of a complaint, and the return is in the nature of an answer.  Aray v. Warden, 187 Conn. 324, 332, 445 A.2d 916 (1982).   We, thus, treat the petition, return and reply as we would other civil pleadings.   We are mindful of the principle that pleadings should be construed broadly and realistically, rather than narrowly and technically ․ [A pleading] must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties.”  (Internal quotation ‘marks omitted.)  Taylor v. Commissioner of Correction, 94 Conn.App. 772, 785, (2006), rev'd in part on other grounds, 284 Conn. 433, 936 A.2d 611 (2007).   Construing the petitioner's amended petition and reply broadly, the court finds that the correctness of the public defender's indigency determination goes directly to the petitioner's claim that he did not knowingly, intelligently and voluntarily waive his right to counsel and thus, is properly before the court.

Cobb, Susan Quinn, J.