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******************************************************GENE NEWLAND v. COMMISSIONER OF CORRECTION (AC 35835)

Sheldon, Keller and Harper, Js. Argued March 5—officially released June 24, 2014 (Appeal from Superior Court, judicial district of

Tolland, Cobb, J.)
Michael J. Proto, assistant state’s attorney, with whom, on the brief, was Patricia M. Froehlich, state’s attorney, for the appellant (respondent). Grayson Colt Holmes, with whom were Stephen A. Lebedevitch and, on the brief, James J. Ruane, James O. Ruane and Stephanie M. O’Neil, for the appellee (petitioner).Opinion SHELDON, J. The respondent, the Commissioner of Correction, appeals from the judgment of the habeas court granting the amended petition for writ ofhabeas corpus filed by the petitioner, Gene Newland, on the ground that the petitioner had not knowingly, intelligently, and voluntarily waived his constitutional right to counsel in his criminal trial, at which he 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). The petitioner was sentenced on these charges to

aterm oftenyears incarcerationand eightyears special parole. On appeal, the respondent claims that: (1) the petitioner’sclaimswereprocedurallydefaultedbecause he did not raise them by way of direct appeal of his conviction; (2) the habeas court improperly granted the amended petition on a ground not claimed in that petition, namely, that the public defender’s office had erred in determining thatthe petitionerwas not eligible forits services; and (3) evenifthatgroundwasproperly before the court, the petitioner did not meet his burden ofproving that the determination of ineligibility by the public defender’s office was erroneous. We affirm the judgment of the habeas court.
InitsJune 13, 2013memorandumofdecisiongranting the amended petition for writ of habeas corpus, the habeas court set forth the following relevant factual and procedural history. ‘‘On or about May 17, 2007, the petitionerwas arrested and chargedwithsexual 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 [of the Superior Court] 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 petitionertoretaincounsel. Thepublicdefender’soffice 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).

. . . Nor did the court

or the state inform the petitioner ofthis statutory right

on the record. The petitioner did not appeal the ineligibility decision to the trial court.
‘‘The petitioner appeared [before the court multiple times] over the next several months and received continuances forthepurpose ofhiring counsel. Athis court appearance on November 16, 2007, the petitioner reported [to the court] that he was trying to refinance his property in order to obtain counsel. The courtentered not guilty pleas and ajury election on the petitioner’s behalf and continued the case. ‘‘On January 11, 2008, the state informed the trial courtthatthe petitionerwouldbe 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 thathe didnothave the $2500 necessaryforaminimum 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 hadbeen denied because he owned property. The court then continued the matter, but did notinformthepetitionerthathe couldappealthepublic 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 forthe 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’mbarelymaking ends meet as it is right now. Believe me, if I could afford a lawyer, Iwould. Iwas deniedapublic defenderbecause 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 thepetitioner, andthe courtgave himamonthto decide whether to accept or reject it. The petitioner rejected thestate’sofferonSeptember5, 2008, andthepetitioner 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 ifhe was close to hiring an attorney. The petitioner reported that he hadjust lost one ofhis 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, andthepetitionerexplainedthathe 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 petitionerthat he could appeal the denial ofservices 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 appearedincourtwiththepetitionertoinformthe 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.
‘‘OnApril 15, 2009, thepartiesappearedforjuryselection. The trial court inquired ofthe petitioner as to the status ofhis 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 publicdefender’sofficetoldhim‘automaticallydisqualified’ himforservices. Thepetitionerinformedthe 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 ofwhat 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 representedby 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 thejury list, it’s come up 20 times, and it’s been continued 19 times. We have a jury here this morning, and [it’s] 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, onAugust 7, 2009, he remained unrepresented. In his comments to the court, the petitionerarguedthat he had been ‘wrongfully denied counsel’ and that he believed that he ‘could have wonthis case if [he] would have had a counsel.’ The court then sentenced the petitionerto atotal effective sentence oftenyearsincarceration 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 marketvalue of$168,000. As ofJuly22, 2008, andduring the petitioner’s criminal trial, the petitioner’s property

was subjectto aforeclosure action, based onthe 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 Trusteefor theBenefit ofthe Certificate Holders ofCWABs, Inc., andAsset–Backed Certificates Series 2007–QHI v. Gene P. Newland, Jr

. ‘‘Public DefenderRaymond Canning ofthe Danielson public defender’s office had no recollection ofthe petitioner’s case and no records ofthe 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 Services [income eligibility] 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 inthis case was not advised of his right to appeal the public defender’s ineligibilitydeterminationbythepublic defender’s office or anyone else. The record reveals that such advice was not provided to the petitioner on the record, and the petitionertestified credibly that the publicdefenderdidnotinformhimofhisrighttoappeal. In addition, Attorney Canning had no recollection of this case orthispetitioner, andhis officehadnorecords ofthepetitioner’s applicationsinthismatter. Moreover, except for his arraignment, no public defender ever appeared in court with the petitionerto 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 apublic 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 ofthe 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 ofthe 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 publicdefenderservices, thenatureofthe crimeandthe costtohireprivatecounselinthatjurisdictionshouldbe 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 [eligibility] guidelines, there is a presumption that he or she is ineligible for services. These presumptions are, however, rebuttable. ‘‘Applying the income [eligibility] guidelines to this case, which Attorney Carlow stated would be considered a serious and complex case giventhe charges, and based on the petitioner’s income, the petitioner wouldhave 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 1990swhenthe real estate marketwas 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 equitywas 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 thepropertyhadsomeremainingequitybutwas 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 onthe testimonyproduced atthe habeas trial

. . . 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 andnotreadilyaccessible andthe propertywas encumbered by an ongoing foreclosure action. Thus, the real property didnotprovide the defendantwith anyreadily accessible funds to hire private counsel.’’
The habeas court concluded 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 retainprivate counsel. Had the petitioner been properly informed of his right to the services of a public defender, he would have acceptedthoseservices. Thus,butforthepublicdefender’s erroneous eligibility determination, the petitioner wouldnothave ‘implicitly’ orotherwisewaivedhisrightto counsel, and the trial court would not have accepted the ‘implicit’ waiverhad it known ofthe petitioner’s eligibility.’’
Onthose bases, the habeas court grantedthe petition forawrit ofhabeas corpus, andvacatedthepetitioner’s conviction. The habeas court thereafter granted the respondent’s petition for certification to appeal, and this appeal followed.
‘‘A defendant has knowingly and intelligently waived the right to counsel if the trial judge finds that he (1) [h]as been clearly advised ofthe right to the assistance of counsel, including the right to the assignment of counsel when so entitled; (2) [p]ossesses the intelligence and capacity to appreciate the consequences of the decision to represent oneself; (3) [c]omprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding ofthe case; and (4) [h]as been made aware of the dangers and disadvantages of self-representation.

. . . ‘‘[T]he determination of whether there has been an intelligentwaiveroftherighttocounselmustdepend, 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.

. . . Our task, therefore, is to determine whether the court abused its discretion in allowing the defendant to discharge his counsel and to represent himself.’’ (Internal quotation marks omitted.) State v. Gaston, 86 Conn. App. 218, 232, 860 A.2d 1253 (2004), cert. denied, 273 Conn. 901, 867 A.2d 840 (2005).
‘‘The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous.

. . . Historical facts constitute a recital of external events and the credibility oftheir narrators.

. . . Accordingly, [t]hehabeasjudge, asthetrieroffacts, isthesolearbiter of the credibility of witnesses and the weight to be given to their testimony.

. . . The application of the habeas court’s factual findings to the pertinent legal standard, however, presents a mixed question of law andfact, which is subjectto plenaryreview.’’ (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 677, 51 A.3d 948 (2012). With those principles in mind, we turn to the respondent’s claims on appeal.
I
We beginwiththe respondent’s claimthatthe habeas courtincorrectlydeterminedthatthepetitioner’sclaims

werenotprocedurallydefaulted. Therespondentclaims thatthe petitioner’s claimswere procedurallydefaulted because they were not raised on direct appeal of his conviction and the petitioner failed to prove that saiddefault was excused by cause and prejudice.1 We are not persuaded.
In his return to the petitioner’s amendedpetition, the respondent alleged that the petitioner’s claims were procedurally defaulted. He thereafter moved for summary judgment on that basis. The habeas court concluded that the petitioner’s claims were not procedurally defaulted and, thus, denied the respondent’s motion for summaryjudgment. A court’s denial ofamotionfor summaryjudgment and adetermination of procedural default involve questions of law over which ourreviewis plenary. Johnsonv. Commissioner ofCorrection, 285 Conn. 556, 566, 941 A.2d 248 (2008).
‘‘In discussing the principles that govern review of a respondent’s affirmative defense that a habeas claim is procedurally defaulted

. . . as a general rule, [t]he appropriate standard forreviewability ofhabeas claims that were not properly raised at trial

. . . or on direct appeal

. . . because of a procedural default is the

cause and prejudice standard. 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 cause and prejudice test is designed to prevent full review ofissues in habeas corpus proceedings that counsel did not raise at trial or
on appeal for reasons of tactics, inadvertence or ignorance.

. . . [T]he existence of cause for a procedural default must ordinarilyturn on whetherthe [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 thatthefactualorlegalbasisforaclaimwasnotreasonably available to counsel

. . . or

. . . some interference by officials

. . . would constitute cause under this standard.’’ (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 567–68.
‘‘When a respondent seeks to raise an affirmative defense of procedural default, the rules of practice require that he or she must file a return to the habeas petition ‘alleg[ing] any facts in support of any claim of procedural default

. . . or any other claim that the petitioner is not entitled to relief.’ Practice Book § 23- 30 (b). ‘If the return alleges any defense or claim that the petitioner is not entitled to relief, and such allegationsarenotputindisputebythepetition, thepetitioner shall file a reply.’ Practice Book § 23-31 (a). ‘The reply shallallege anyfactsandassertanycause andprejudice claimed to permit review of any issue despite any claimedprocedural default.’ Practice Book § 23-31 (c).’’ Johnson v. Commissioner of Correction, supra, 285 Conn. 567. Here, in his reply to the respondent’s return alleging procedural default, the petitioner pleaded that ‘‘[a]ny prejudice is presumed because the petitioner’s right tocounselwasviolatedandthepetitioner’slackofcounsel is sufficient cause to excuse any default for failing to directlyappeal. SeeDennisv. CommissionerofCorrection, 134 Conn. App. 520, 528, [536, 39A.3d 799] (2012).’’ The habeas court agreed, as do we.
InDennis, this court, citingtofederalprecedent, held thatthe ‘‘[v]iolationoftherightto counselis anexternal error’’ that satisfies the burden ofdemonstrating cause; id, 532; and that ‘‘actual prejudice is presumed when the petitioner’s right to counsel is violated.’’ Id., 536. Because, as we will discuss in further detail herein, we conclude that the petitioner’s right to counsel was, in fact, violated, we agreewiththehabeas courtthatcause and prejudice are presumed.
The respondent contends that Dennis does not relieve the petitionerinthis case ofhis burden ofshowing cause and prejudice. In so arguing, the respondent attempts to distinguish Dennis from this case on the groundthatthe trial court inDennis had not canvassed the petitioner at all regarding a waiver of his right to counsel and, in fact, never made a finding of waiver, whereas here the trial court did canvass the petitioner, arguably inadequately, and allegedlymade an improper finding of implicit waiver. In other words, the respondent argues, because the trial court did canvass the petitioner and did make a finding of implicit waiver, his burden of proving cause and prejudice must be greaterthaninthose situations, like inDennis, inwhich there was no canvass at all. Although that factual distinction might make a difference in some contexts, we conclude that it does not make a difference here because the constitutional deprivation is the same: the denial of the constitutional right to counsel. Here, the habeas court found that the petitioner repeatedly told the trial court that he did not want to represent himselfandthat he wantedto be represented bycounsel, buthe couldnotaffordto hire private counsel, and the public defender’s office twice had determinedthathe was ineligible forits services. The habeas court further found that the public defender’s finding ofineligibilityonthebasis ofthepetitioner’s ownership ofrealpropertywas erroneous because any equityheld by the petitioner in that property was not readily available to the petitioner to provide funds forthe retention of private counsel. The habeas court found that the petitioner attempted to demonstrate his indigence on
numerous occasions, but that he was not advised, by the courtorthepublic defender’s office, ofhis statutory rightto appeal to the trial court fromthe public defender’s determination ofineligibility. See General Statutes § 51-297 (g).2 The habeas court concluded that had the petitioner been properly advised ofhis right to the services of a public defender, either by way of a proper determination of eligibility versus a determination based solely upon the ownership of property, or bybeing advised that he had the statutory right to challenge that determination to the trial court, he would not have ‘‘implicitly’’ or otherwise waived his right to counsel, and, had a proper determination of eligibility been performed, the court would not have made such

afinding. Inlightofthose findings, which are supported by the record and are therefore not clearly erroneous, the habeas courtproperly concludedthatthe petitioner did not knowingly, intelligently, or voluntarily waive his right to counsel. The habeas court thus did not err in determining that the petitioner’s constitutional right to counsel was violated and that his claims were not procedurally defaulted.
II
The respondent next argues that the habeas court erred in granting the amended petition for a writ of habeas corpus on a basis that was not claimed therein. Specifically, he claims that because the amended petition does notsetforth aclaim oferroronthepart ofthe public defender’s office in determining the petitioner’s ineligibility for services, the habeas court improperly granted the petition on that ground. The habeas court disagreed, explainingthattheproprietyofthe ineligibility determination went directlyto the petitioner’s claim that he did not knowingly and intelligently waive his right to counsel. We agree with the habeas court.
‘‘It is well settled that [t]he petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action.

. . . The principle that a plaintiffmay rely only upon what he has alleged is basic.

. . . It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint.

. . . While the habeas court has considerable discretion to frame

a remedy that is commensurate with the scope of the established constitutional violations

. . . it does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised.

. . . The purpose of the [petition] is to put the [respondent] on notice of the claims made, to limit the issues to be decided, and to prevent surprise.

. . . Moreover, [t]he modern trend, which is followed in Connecticut, is to construepleadingsbroadlyandrealistically, ratherthan narrowly and technically.

. . . [T]he [petition] 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 substantialjustice between the parties.

. . . Our reading of pleadings in a manner that advances substantialjustice means that apleading must be construed reasonably, to contain all that it fairly means, but carries with it the related proposition that it must not be contorted in such a way so as to strainthebounds ofrational comprehension.’’ (Citation omitted; internal quotation marks omitted.) Lebron v. Commissioner of Correction, 274 Conn. 507, 519–20,876 A.2d 1178 (2005).
The petitioner pleaded in his amended petition that he had twice applied for public defender services and had twice been denied those services. Although the petitionerdidnotspecificallyallegeanimproprietywith the public defender’s threshold ineligibility determination in his amended petition, that determination necessarily went to his knowledge regarding his right to counsel. His case was continued numerous times by the trial court to afford him the opportunity to retain counsel. He repeatedly informed the court that, despite his best efforts, he was unable hire an attorneybecause he did not have the financial means to do so. He repeatedly represented to the court that he wanted to be representedby counsel. Afterseveral continuances, the court determined that the petitioner had implicitly waived his right to counsel and that he had done so knowingly, intelligently, andvoluntarilybecause he had been denied the services of a public defender but had failed to retain private counsel. Given the petitioner’s repeated expressions of his desire to be represented by counsel, and his representations that he could not afford to hire private counsel although he had been deemed ineligible for apublic defender, the respondent cannot reasonably claim surprise on the basis that the propriety ofthe ineligibility determination was at issue in challenging the court’s finding ofwaiver of his right to counsel. We thus agree with the habeas court that the issues ofwhether the public defender’s office erroneously determined that the petitioner was ineligible for services and whether the petitioner was informed ofhisrighttoappealfromtheineligibilitydetermination wenttothe knowingandvoluntarynature ofthe alleged waiver of the right to counsel and were thus properly before the habeas court.
III
Because we conclude thatthe propriety ofthe public defender’s determination ofineligibilitywasreasonably related to the petitioner’s claim that he did not knowingly, intelligently, and voluntarily waive his right to counsel, and was thus properly considered by the habeas court, wereachthe respondent’sfinalclaimthat the petitioner failed to prove that the public defender’s office erroneously determined that the petitioner was notindigentandconsequentlyineligibleforitsservices. Although ‘‘[i]t is the duty ofthe state to provide adequate means to assure that no indigent accused lacks full opportunity for his defense

. . . [d]efendants seeking such assistance must satisfy the court as to their indigency

. . . .’’ (Citation omitted; internal quotation marks omitted.) State v. Martinez, 295 Conn. 758, 782, 991 A.2d 1086 (2010). An assessment ofwhether aparty is indigent and thus eligible for state funded legal assistance is a factual determination that is subject to a clearly erroneous standard of review. Id. ‘‘A finding offact 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 withthe definite and firm conviction that amistake has been committed.’’ (Internal quotation marks omitted.) Id.
To be sure, the absence ofthe applications that were made to the public defender’s office in 2007 is problematic to the petitioner’s claim that the public defender’s office erred in denying those applications. The petitioner, however, presented evidence as to his financial circumstances at the time that he applied for public defender services. The petitioner also testified that his applications were denied on the basis ofhis ownership of real property, which, at that time, was being foreclosed upon. The habeas court credited the petitioner’s testimony, as well as that of Carlow, the deputy chief public defender, who testified that the ownership of property is not, in itself, a determinative factor in assessing eligibility, but, rather, that the proper consideration is whether any equity in that property is readily accessible for use in the retention of counsel. Carlow concluded, on the basis ofthe evidence presented, that the petitioner met the income eligibility guidelines to qualifyforrepresentation. Onthose bases, we conclude thatthe habeas courtproperly foundthatthe petitioner had met his burden of proving that the determination of ineligibility by the public defender’s office was clearly erroneous.
The judgment is affirmed.
In this opinion the other judges concurred.

1 In his return to the petitioner’s amendedpetition, the respondent alleged that the petitioner’s claims were procedurally defaulted because he failed to raise them by way of direct appeal from his criminal conviction, but he also mentioned the petitioner’s failure to appeal to the trial court from the public defender’s determination of ineligibility. In his motion for summary judgment, the respondent also appearedto claimthatthepetitionerisprocedurally defaulted for his failure to assert his claims either to the trial court

or in a direct appeal. In addressing the respondent’s claim of procedural default, the habeas court focused on the petitioner’s failure to appeal to the trial court from the public defender’s determination of ineligibility. In his brief to this court, the respondent again argues that the petitioner’s claims

were procedurally defaulted because the petitioner did not pursue them on direct appeal. Under the circumstances ofthis case, because our resolution oftherespondent’s claim ofproceduraldefaultisbaseduponthepetitioner’s claim ofaviolation ofhis right to counsel and whether cause and prejudice

are presumedinthepresence ofsuch aviolation, theprocedural mechanism bywhich the petitionerperhaps should have raised his claims is immaterial.

2 General Statutes § 51-297 (g) provides: ‘‘If the Chief Public Defender or anyone serving under the ChiefPublic 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.’’