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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 of habeas

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

a term of ten years incarceration and eight years special

parole. On appeal, the respondent claims that: (1) the

petitioner’s claims were procedurally defaulted because

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 that the petitioner was not eligible

for its services; and (3) even if that ground was properly

before the court, the petitioner did not meet his burden

of proving that the determination of ineligibility by the

public defender’s office was erroneous. We affirm the

judgment of the habeas court.

In its June 13, 2013 memorandum of decision granting

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

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 [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

petitionerto 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). . . . 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 [before the court multiple

times] 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 [to the court] 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 $2500 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 petitionerthat 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 petitionerto 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 forjury 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

[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, 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

Series 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 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 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 notinform him of his right to appeal.

In addition, Attorney Canning had no recollection of

this case orthis 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 [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 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 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.’’

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 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, butforthe 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.’’

On those bases, the habeas court granted the petition

for a writ of habeas corpus, and vacated the petitioner’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 of the 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 of the 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

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. . . . 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 of their narrators. . . . Accordingly,

[t]he habeas judge, as the trier of facts, is the sole arbiter

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

and fact, which is subject to plenary review.’’ (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 begin with the respondent’s claim that the habeas

courtincorrectly determined thatthe petitioner’s claims

were not procedurally defaulted. The respondent claims

that the petitioner’s claims were procedurally defaulted

because they were not raised on direct appeal of his

conviction and the petitioner failed to prove that said
default was excused by cause and prejudice.1 We are

not persuaded.

In his return to the petitioner’s amended petition, 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 summary judgment. A court’s denial

of a motion for summary judgment and a determination

of procedural default involve questions of law over

which our review is plenary. Johnson v. Commissioner

of Correction, 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 for reviewability of habeas 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 of issues 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 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 orlegal basis for a claim was notreasonably 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 allegations are not put in dispute by the petition, the petitioner

shall file a reply.’ Practice Book § 23-31 (a). ‘The reply

shall allege any facts and assert any cause and prejudice

claimed to permit review of any issue despite any

claimed procedural 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 to
counsel was violated and the petitioner’s lack of counsel

is sufficient cause to excuse any default for failing to

directly appeal. See Dennis v. Commissioner of Correction, 134 Conn. App. 520, 528, [536, 39 A.3d 799](2012).’’

The habeas court agreed, as do we.

In Dennis, this court, citing to federal precedent, held

that the ‘‘[v]iolation of the right to counsel is an external

error’’ that satisfies the burden of demonstrating 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 agree with the habeas court that cause

and prejudice are presumed.

The respondent contends that Dennis does not

relieve the petitioner in this case of his burden of showing cause and prejudice. In so arguing, the respondent

attempts to distinguish Dennis from this case on the

ground that the trial court in Dennis 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 allegedly made 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

greater than in those situations, like in Dennis, in which

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 himself and that he wanted to be represented

by counsel, but he could not afford to hire private counsel, and the public defender’s office twice had determined that he was ineligible for its services. The habeas

court further found that the public defender’s finding

of ineligibility on the basis of the petitioner’s ownership

of real property was erroneous because any equity held

by the petitioner in that property was not readily available to the petitioner to provide funds for the 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 court or the public defender’s office, of his statutory

right to appeal to the trial court from the public defender’s determination of ineligibility. See General Statutes

§ 51-297 (g).2 The habeas court concluded that had the

petitioner been properly advised of his 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 by
being 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

a finding. In light of those findings, which are supported

by the record and are therefore not clearly erroneous,

the habeas court properly concluded that the 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 not set forth a claim of error on the part of the

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, explaining that the propriety of the ineligibility determination went directly to 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 plaintiff may 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

construe pleadings broadly and realistically,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 substantial justice between

the parties. . . . Our reading of pleadings in a manner

that advances substantial justice means that a pleading

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

strain the bounds of rational 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

petitioner did not specifically allege an impropriety with

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 attorney because

he did not have the financial means to do so. He repeatedly represented to the court that he wanted to be

represented by counsel. After several continuances, the

court determined that the petitioner had implicitly

waived his right to counsel and that he had done so

knowingly, intelligently, and voluntarily because 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 a public defender, the respondent

cannot reasonably claim surprise on the basis that the

propriety of the ineligibility determination was at issue

in challenging the court’s finding of waiver of his right

to counsel. We thus agree with the habeas court that

the issues of whether the public defender’s office erroneously determined that the petitioner was ineligible

for services and whether the petitioner was informed

of his right to appeal from the ineligibility determination

went to the knowing and voluntary nature of the alleged

waiver of the right to counsel and were thus properly

before the habeas court.

III

Because we conclude that the propriety of the public

defender’s determination of ineligibility was reasonably

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, we reach the respondent’s final claim that

the petitioner failed to prove that the public defender’s

office erroneously determined that the petitioner was

not indigent and consequently ineligible forits services.

Although ‘‘[i]t is the duty of the 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 of whether a party

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 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.’’ (Internal quotation marks omitted.) Id.

To be sure, the absence of the 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 of his 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 of the evidence presented, that

the petitioner met the income eligibility guidelines to

qualify for representation. On those bases, we conclude

that the habeas court properly found that the 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 amended petition, 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 appeared to claim that the petitioner is procedurally 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 of this case, because our resolution

of the respondent’s claim of procedural default is based upon the petitioner’s

claim of a violation of his right to counsel and whether cause and prejudice

are presumed in the presence of such a violation, the procedural mechanism

by which the petitioner perhaps should have raised his claims is immaterial.

2 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.’’