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STATE OF CONNECTICUT v. FRANCISCO NAVARRO

(AC 37724)

DiPentima, C. J., and Alvord and Schaller, Js.

Argued February 1—officially released April 25, 2017

(Appeal from Superior Court, judicial district of

Fairfield, Kavanewsky, J.)
Deren Manasevit, assigned counsel, with whom, on

the brief, was Neal Cone, senior assistant public

defender, for the appellant (defendant).

James A. Killen, senior assistant state’s attorney,

with whom, on the brief, was John C. Smriga, state’s

attorney, and Tiffany M. Lockshier, senior assistant

state’s attorney, for the appellee (state).
Opinion

ALVORD, J. The defendant, Francisco Navarro,

appeals from the judgment of conviction,rendered after

a jury trial, of attempt to commit burglary in the first

degree in violation of General Statutes §§ 53a-49 and

53a-101 (a) (3), threatening in the second degree in

violation of General Statutes § 53a-62, and interfering

with a police officer in violation of General Statutes

§ 53a-167a. The defendant’s identical twin brother, Jose

Navarro (Jose), was charged with, and convicted of,

the same offenses as the defendant and, in addition,

with assault on a police officer, after the joint trial at

which they were jointly represented by defense counsel.

On appeal, the defendant claims that (1) the court violated his sixth amendment right to conflict free representation by conducting an inadequate inquiry into

whether a conflict of interest had arisen in the joint

representation and (2) counsel rendered ineffective

assistance by representing him during plea negotiations, trial, and sentencing while burdened by an actual

conflict of interest. We affirm the judgment of the

trial court.

On the basis of the evidence presented at trial, the

jury reasonably could have found the following facts.

On May 29, 2013, at 12:42 a.m., the victims, Joseph

Kenney and Sharon Root, were awakened by the sound

of two men, later identified as the defendant and Jose,

whistling and yelling outside their first floor apartment

window. Annoyed by the disturbance, Kenney went to

the window and asked the men, ‘‘What the fuck do you

want?’’ and ‘‘who are you looking for?’’ One of the men

replied, ‘‘Shut the fuck up, white boy. I’ll fuck you up.’’

After a further exchange, the defendant and Jose came

up to the victims’ apartment windows. The defendant

attempted to pull the security bars off one of the windows while Jose attempted to pull the frame off the

unbarred window next to it.

As the situation escalated, Kenney told Root to stay

as far as she could away from the window, grabbed a

framing hammer, and made a series of calls to 911. The

defendant and Jose continued to attempt to gain access

to the apartment. As they did so, the defendant and

Jose continued to yell at the victims, threatening at one

point to get a gun, shoot Kenney, and rape Root. Kenney

testified that the defendant was ‘‘more aggressive’’ than

Jose was during the attempted burglary. For example,

the defendant at one point retrieved a plank of wood,

which was discarded nearby, and used it to hit the

security bars. He also attempted to kick in the rear

entrance door to the house while saying ‘‘I’m going to

get in.’’

After a few minutes, the sound of police sirens could

be heard and the defendant and Jose left the scene on

foot. As one of the responding police officers, Officer
Tom Harper, approached the defendant and Jose, he

asked them to remove their hands from their pockets

for safety reasons. The defendant and Jose refused to

comply with this request and began yelling that they

knew their rights and that they did not do anything

wrong. Harper then approached the defendant, who

was closest to him, in an attempt to detain him and frisk

him for weapons. The defendant continued to ignore

Harper’s request that he show his hands, and he became

combative, yelling and pulling away as Harper

attempted to place him in handcuffs. Around this time,

three additional officers arrived on the scene. One

assisted Harper in detaining the defendant while the

other two attempted to detain Jose, who, like the defendant, was refusing to remove his hands from his pockets, was yelling at officers, and was attempting to get

away. Eventually, the four officers subdued the defendant and Jose and placed them in separate police

cruisers.

Once in their respective police cruisers, the defendant and Jose continued to struggle, yelling and kicking

against the cruiser. Officers testified that Jose was more

aggressive than the defendant was during the arrest

process. First, Jose attempted to kick out the windows

of the police cruiser. He then managed to bring his

handcuffs under his body and around to the front, and

he began banging the handcuffs against the police

cruiser windows. Officers asked Jose to step outside

of the vehicle so that they could fix his handcuffs, but he

refused to comply and became combative. Eventually,

officers were able to remove Jose from the police

cruiser and move his handcuffs into the correct position. After officers placed him back inside the police

cruiser, Jose continued to kick and scream.

When officers detained the defendant and Jose, Kenney was brought to the arrest location so that he could

verify whether the defendant and Jose were the men

that attempted to break into his and Root’s apartment.

Kenney positively identified both the defendant and

Jose. During the course of the identification process,

the defendant was brought outside of the police cruiser,

but Jose, because of his combative behavior, could not

be let out of the police cruiser safely, and Jose had to

remain inside the police cruiser while Kenney identified him.

After Kenney positively identified the defendant and

Jose, they were transported to a police station for booking. Once at the police station, the defendant and Jose

remained combative, screaming profanities and refusing to comply with orders from the officers. As a result,

they were placed in holding cells to complete the booking process. While inside his cell, Jose spat on one of

the officers assisting in the booking process.

The defendant and Jose subsequently were charged

with attempt to commit burglary in the first degree,
threatening in the second degree, and interfering with

a police officer. Jose further was charged with assault

on a police officer for spitting on the officer during

the booking process. The same public defender was

appointed to represent the defendant and Jose. After a

joint trial, the defendant was convicted of all three

charges. Thereafter, the courtimposed on the defendant

a total effective sentence of ten years imprisonment,

execution suspended after five years, followed by five

years of probation. This appeal followed. Additional

facts will be set forth as necessary.

I

We begin by addressing the defendant’s claim that the

court, Devlin, J., violated his sixth amendment rights to

conflict free representation by conducting an insufficient inquiry into the existence of a conflict of interest,

as required by Holloway v. Arkansas, 435 U.S. 475, 98

S. Ct. 1173, 55 L. Ed. 2d 426 (1978).1 The state responds

first that the court had no duty under Holloway to

inquire into whether a conflict of interest existed in

counsel’s representation of the defendant because

counsel never indicated that such a conflict might exist

with respect to him. Alternatively, the state argues that

even if Holloway applies, the court did not violate the

defendant’s constitutional rights because it conducted

an adequate inquiry into the potential conflict raised by

counsel and it reasonably concluded that the proffered

conflict was too speculative to require the appointment

of separate counsel for Jose. We conclude that the

court’s inquiry into the existence of a conflict of interest

in the joint representation complied with the constitutional requirements of Holloway and that the court did

not err by not appointing a special public defender to

represent Jose.

The following additional facts are relevant to this

claim. On March 29, 2013, a public defender was

assigned to represent jointly the defendant and Jose.

At four pretrial hearings for the defendant and Jose

between August 6, 2013, and April 21, 2014, counsel

represented to the court that there was presently no

conflict of interest in the joint representation because

the defendant and Jose’s defenses were in concert.

Additionally, at pretrial hearings on September 5 and

November 4, 2013, the defendant and Jose rejected plea

offers from the state.

At a pretrial proceeding on May 29, 2014, the final

pretrial hearing before jury selection on June 2, 2014,

the following colloquy took place between the court,

Devlin, J., and counsel when the defendant’s case

was called:

‘‘[Defense Counsel]: I’d be asking for an appointment

with a special public defender in [Jose’s] case, Your

Honor.

‘‘The Court: No way. I mean the case goes back to—
it’s over a year old. These guys are identical twins.

You’re asking for that now?

‘‘[Defense Counsel]: Your Honor, as the case

approaches trial my concern was that one of them could

get—could be interested in pleading and—

‘‘The Court: Your job is to evaluate this in the first

thirty days of your representation.

‘‘[Defense Counsel]: Yes, Your Honor. I was anticipating the possibility of some resolution at some point

during the pretrial process but it doesn’t appear that

that’s going to be the case.

‘‘The Court: Well, look, Francisco Navarro, you report

tomorrow to Judge Kavanewsky to start jury selection

on this case tomorrow, right, because I assume your

client is turning down the proposed disposition on

this case?

‘‘[Defense Counsel]: He does not want the ten suspended after five with three probation.

’’The Court: Okay. So, we’re going to start trial tomorrow, Mr. Navarro.’’ (Emphasis added.)

Immediately thereafter, the court called Jose’s case

and engaged in the following colloquy with counsel:

‘‘[Defense Counsel]: This is the case where I had

intended to ask for a special public defender, Your

Honor.

‘‘The Court: And what’s the basis for that?

‘‘[Defense Counsel]: I think there is some possibility

of a conflict should Francisco Navarro change his mind

about entering a plea in this matter, Your Honor, and

that would put me in a difficult situation, ethically.

‘‘The Court: I’m not following. You need to give me

more specific reasons than that.

‘‘[Defense Counsel]: Well, the defense does appear

to be in concert, Your Honor. Should Mr. Navarro

change his mind about pleading—

‘‘The Court: Which one, Mr. Francisco—

‘‘[Defense Counsel]: Oh, Francisco. My apologies,

Your Honor. The codefendant was just before Your

Honor. Should he change his mind and during the allocution process, he might have to admit to facts which

could potentially inculpate Jose Navarro.

‘‘The Court: Right. But Francisco is not admitting

to anything. He’s going to trial.

‘‘[Defense Counsel]: That’s correct, Your Honor.

‘‘The Court: And so, Jose is going to trial as well,

right? On their present record, both of these gentlemen,

which is their perfect right, do not want to resolve the

case and wish to go to trial. Is that true or not true?
‘‘[Defense Counsel]: That’s correct, Your Honor.

‘‘The Court: Okay. So, my concern is that it looks

like these people were arrested on or about, you know,

May 29, 2013. We’re now May 29th—exactly one year

ago, they were arrested. It’s unreasonable to having

this case been on the firm jury docket thirteen times,

however many times on the pretrial docket, literally the

day—twenty-four hours before their trial is supposed to

start a lawyer represents these two defendants simultaneously for a full year, now, wants a new lawyer and

just on some speculation.2 Okay, Jose Navarro’s case

is also put down for trial tomorrow morning, in front

of Judge Kavanewsky.’’ (Emphasis added; footnote

added.)

We begin by setting forth the legal principles that

govern our analysis. ‘‘It is well established that the sixth

amendment to the United States constitution guarantees the right to effective assistance of counsel. . . .

Where a constitutional right to counsel exists, our Sixth

Amendment cases hold that there is a correlative right

to representation that is free from conflicts of interest.

. . . This right requires that the assistance of counsel

be untrammeled and unimpaired by a court orderrequiring that one lawyer shall simultaneously represent conflicting interests.’’(Citations omitted; internal quotation

marks omitted.) State v. Vega, 259 Conn. 374, 386, 788

A.2d 1221, cert. denied, 537 U.S. 836, 123 S. Ct. 152, 154

L. Ed. 2d 56 (2002). To safeguard a criminal defendant’s

right to effective assistance of counsel, Holloway

imposes ‘‘an affirmative obligation [on trial courts] to

explore the possibility of conflict when such conflict

is brought to the attention of the trial judge in a timely

manner. . . . The course thereafter followed by the

court in its inquiry depends upon the circumstances of

the particular case.’’ (Citations omitted; internal quotation marks omitted.) Id, 389.

If ‘‘a trial court improperly requires joint representation over timely objection,’’ then ‘‘reversal is automatic.’’ Holloway v. Arkansas, supra, 435 U.S. 488. If,

however, the court determines that the possibility of a

conflict of interest is ‘‘too remote to warrant separate

counsel’’; id., 484; the court may deny counsel’s request

for separate counsel. See id. This is because ‘‘[i]t is not

representation of more than one client which deprives

a defendant of his constitutional right to effective assistance of counsel, it is representation of clients with

adverse interests.’’ (Emphasis in original; internal quotation marks omitted.) State v. Cator, 256 Conn. 785,

794, 781 A.2d 285 (2001); see also Cuyler v. Sullivan,

446 U.S. 335, 348, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980)

(‘‘Holloway reaffirmed that multiple representation

does not violate the Sixth Amendment unless it gives

rise to a conflict of interest’’); Holloway v. Arkansas,

supra, 482 (‘‘[r]equiring or permitting a single attorney

to represent codefendants . . . is not per se violative
of constitutional guarantees of effective assistance of

counsel’’ [emphasis in original]).

When counsel informed the court of his concern that

a conflict of interest might arise ifthe defendant decided

to plead guilty, the court’s duty to inquire under Holloway was triggered. Based on the particular circumstances in this case, however, we conclude that the

court conducted an adequate inquiry into the proffered

conflict of interest and did not err in determining that

the conflict was too speculative to require the appointment of separate counsel for Jose.

When Jose’s case was called, the court immediately

asked counsel to articulate the basis for his request for

a special public defender for Jose.3 Counsel indicated

that ‘‘there is some possibility of a conflict should Francisco Navarro change his mind about entering a plea

in this matter, Your Honor, and that would put me in

a difficult situation, ethically.’’(Emphasis added.) Given

the vague nature of counsel’s representation, the court

reasonably asked for a more specific reason for his

request. Counsel, however, did not articulate why an

actual conflict of interest existed or was likely to

emerge. Instead, counsel repeated his supposition that

‘‘should [Francisco] change his mind and during the

allocution process, he might have to admit to facts

which could potentially inculpate Jose Navarro.’’

(Emphasis added.) When the court asked counsel

whether the defendant wanted to resolve the case or

go to trial, counsel represented, as he had during the

defendant’s pretrial hearing, that the defendant wanted

to go to trial. On the basis of counsel’s representation,

the court reasonably concluded that the conflict of

interest identified by counsel was speculative and too

remote to require the appointment of separate counsel

for Jose. See Mickens v. Taylor, 535 U.S. 162, 171, 122

S. Ct. 1237, 152 L. Ed. 2d 291 (2002) (‘‘we think ‘an

actual conflict of interest’ [means] precisely a conflict

that affected counsel’s performance—as opposed to a

mere theoretical division of loyalties’’ [emphasis in

original]).

The defendant nevertheless raises several issues concerning the substance of the court’s inquiry. The defendant first argues that the court improperly focused on

the timing of counsel’s requestratherthan on the nature

of the potential conflict. We disagree. Although the

court expressed its consternation at the untimely nature

of counsel’s request for substitute counsel for Jose during the defendant’s hearing, the court clearly afforded

counsel an opportunity during Jose’s hearing to explain

why substitute counsel was necessary. Counsel stated

that there was a potential for a conflict of interest

should the defendant plead guilty, but he was unable

to explain why this event was not too remote to require

the appointment of separate counsel.

The defendant also argues that the court’s inquiry
was inadequate because it ‘‘ignored the obvious—that

[the] Defendant was suddenly willing to inculpate Jose

in return for a more favorable disposition.’’ Similarly,

the defendant argues that the court’s inquiry was inadequate because the court did not recognize the risk that

the defendant or Jose might decide to testify at trial in

a manner that was adverse to the interests of the other.

Contrary to the defendant’s repeated assertions, it was

not ‘‘obvious’’ at the May 29 hearing that he was interested in cooperating with the state in exchange for a

favorable plea agreement. Counsel never represented

to the court that the defendant was interested in cooperating with the state against Jose or that his concurrent

representation of the defendant and Jose was inhibiting

his ability to negotiate a favorable plea deal for the

defendant. Nor did counsel represent to the court that

he was concerned that one defendant might testify in

an adverse manner at trial.

We reiterate that ‘‘Holloway [requires] an inquiry only

when ‘the trial court knows or reasonably should know

that a particular conflict exists.’ . . .’’ (Emphasis

added.) Mickens v. Taylor, supra, 535 U.S. 168. It does

not require the trial court to inquire into the existence

of ‘‘a vague, unspecified possibility of conflict, such as

that which inheres in almost every instance of multiple

representation.’’ (Internal quotation marks omitted.)

Id., 169. ‘‘It is firmly established that a trial court is

entitled to rely on the silence of the defendant and his

attorney, even in the absence of inquiry, when evaluating whether a potential conflict of interest exists. . . .

[D]efense counsel have an ethical obligation to avoid

conflicting representations and to advise the court

promptly when a conflict of interest arises during the

course of trial. Absent special circumstances, therefore, trial courts may assume either that [the potentially

conflicted] representation entails no conflict or that the

lawyer and his clients knowingly accept such risk of

conflict as may exist.’’ (Citation omitted; emphasis in

original; internal quotation marks omitted.) State v.

Gaines, 257 Conn. 695, 708, 778 A.2d 919 (2001).

Because the potential conflicts identified by the defendant on appeal exist in almost every instance of joint

representation and counsel never expressed concerns

about them manifesting in the defendant’s case, the

court was not required to inquire about them. See State

v. Crespo, 246 Conn. 665, 697, 718 A.2d 925 (1998) (‘‘A

trial judge cannot be expected to be prescient. . . .

Before the trial court is charged with a duty to inquire,

the evidence of a specific conflict must be sufficient to

alert a reasonable trial judge that the defendant’s sixth

amendment right to effective assistance of counsel is

in jeopardy.’’), cert. denied, 525 U.S. 1125, 119 S. Ct.

911, 142 L. Ed. 2d 909 (1999).

Therefore, we conclude that the court complied with

its obligations under Holloway at the May 29, 2014 pretrial hearing.
II

The defendant next claims that counselrendered ineffective assistance because counsel was burdened by an

actual conflict of interest that adversely affected his

performance during plea negotiations, trial, and sentencing. The state responds that the defendant waived

his right to conflict free representation and, alternatively, that the record is insufficient to review his claim

on the merits. We agree with both of the state’s

arguments.

The following additional facts are relevant to this

claim. On May 30, 2014, the parties met with the court,

Kavanewsky, J., in chambers to discuss the issue raised

by counsel the day before. On June 2, 2014, the parties

next appeared in court. The court engaged in the following colloquy with counsel:

‘‘The Court: Okay. Now we have discussed this case

before today and I know that before the case came here

Judge Devlin was over at the [courthouse at geographical area number two] and had some discussion with

counsel concerning this case. It’s my understanding that

counsel had continuously represented both defendants

in this case.

‘‘[Defense Counsel]: That is correct, Your Honor.

‘‘The Court: Okay. And while there may have been

some suggestion to Judge Devlin that a motion might

be filed, because I want the record to be clear here,

regarding the special public defenderfor one defendant.

I don’t know what was said on the record and what

was not but when the case came to me and we had

the same discussion, counsel indicated that he had no

intention whatsoever of filing such a motion and did

not think it was warranted. Do I have that—

‘‘[Defense Counsel]: That’s correct, Your Honor.

‘‘The Court: Okay. And have your clients been kept

abreast of all of this as we’ve gone along and as you’ve

gone along?

‘‘[Defense Counsel]: They have, Your Honor. And

Your Honor in chambers on Friday [May 30, 2014] had

indicated your intention to canvass them regarding the

potential conflict. I did discuss that with them and prepared them for that canvass.

‘‘The Court: Okay. And I am going to question them

but before I do, is it your understanding that . . . both

defendants waive any potential conflict and wish you

to represent them in this matter?

‘‘[Defense Counsel]: That is my under—

‘‘The Court: Is that your understanding?

‘‘[Defense Counsel]: That is my understanding,

Your Honor.
‘‘The Court: Okay. For the record, I previewed the

evidence with the state and with defense counsel and,

based on that preview, there was nothing that leapt out

to me that in my mind would require the appointment of

a special public defender for one of the two defendants.

There did not seem to be any actual or potential conflict.

However, I do want to canvass each defendant individually briefly concerning this matter and make sure we’re

on the same page so to speak.’’ (Emphasis added.)

The court first canvassed Jose concerning his rights

and the types of conflicts of interest that might arise

from joint representation. The court then engaged in

the following colloquy with the defendant:

‘‘The Court: Okay. And you’ve been present during

what’s been said so far today?

‘‘[The Defendant]: Yes, sir.

‘‘The Court: Okay.

‘‘The Court: And do you have an understanding of

what’s been said?

‘‘[The Defendant]: Yes, sir.

‘‘The Court: Okay. I have to ask you the same questions even though you’ve heard them already. What I’m

trying to do is satisfy that you understand that should

there be any conflicts that you have made an intelligent

waiver of your choice to allow counsel to represent

both you and your brother. Do you understand that?

‘‘[The Defendant]: Yes, sir.

‘‘The Court: All right. So some examples again are

whether or not to accept or reject a plea offer to one

defendant conditioned on the defendant testifying

against the other, whether or not to present a defense

that helps one defendant more than the other, whether

or not to cross-examine a witness whose testimony

may help one defendant or hurt the other, whether to

have one defendant testify while the other exercises

his right to remain silent. Although as I said before,

the decision to testify is a right that’s personal to the

defendant, that’s his choice not his counsel’s choice,

whether or not to emphasize in summation that certain

evidence is admitted only against or is less compelling

against one defendant than the other.

‘‘And last, should we come to the point of a sentencing, whether or not to argue at sentencing that one

defendant’s role in the criminal activity was shown

to be or was arguably subordinate or less—well, it was

more minimal than the other defendant’s role. Do you

understand those are all situations that could arise during the course of a trial and your attorney who is representing your brother would be confronted with those

choices, you understand that?

‘‘[The Defendant]: Yes, sir.
‘‘The Court: Okay. I want to make sure that you have

been advised of your right to effective representation,

and that you understand the details of your attorney’s

possible conflicts of interest and potential perils of such

conflicts that you’ve discussed the matter with your

attorney, or if you had so desired discussed it with

outside counsel and that you voluntarily waive any . . .

Sixth Amendment protections or conflict-free representation, do you understand that?

‘‘[The Defendant]: Yes, sir.

‘‘The Court: Okay. So again, what I am going to do

is—do you have any questions of me right now? Do

you have any questions to ask me about what I’ve said?

‘‘[The Defendant]: No, Your Honor.’’ (Emphasis

added.)

The court then informed both defendants that they

were going to take a brief recess, during which they

could consult further with counsel, and afterwards it

would ask them individually whether they wanted to

proceed with counsel as their attorney. After the recess,

the court received Jose’s assurances that he wanted to

waive his right to conflict free representation and to

proceed with counsel representing him. The court then

engaged in the following colloquy with the defendant:

‘‘The Court: And Mr. Francisco Navarro, again you

heard me go over it before, examples of situations that

might run the risk of your attorney having to favor

or choose to favor one defendant more than the other

and that’s what I’m talking about when I say representations might not be conflict free. Do you waive any

potential for representation that might not be conflict

free in this case?

‘‘[The Defendant]: Yes, Your Honor.

‘‘TheCourt: Okay.And do you wish [counsel]to represent you?

‘‘[The Defendant]: Yes, Your Honor.

‘‘The Court: Do you have any questions for him

about that?

‘‘[The Defendant]: No.

‘‘The Court: Do you have any questions for me

about that?

‘‘[The Defendant]: No.’’ (Emphasis added.)

After completing the defendant’s canvass, the court

directed the record to reflect ‘‘that both defendants

were canvassed individually in open court concerning

[counsel’s] representing each defendant and each

defendant has separately and knowingly and voluntarily

and understandingly waived any potential for representation that may not be conflict free.’’

A
We first address the defendant’s claim that a conflict

of interest adversely affected counsel’s performance

during plea negotiations. The defendant argues first that

his waiver at the June 2, 2014 hearing does not apply

retroactively to his right to conflict free representation

during plea negotiations. The defendant further claims

that an actual conflict existed during plea negotiations

and that conflict adversely affected counsel’s performance. The state responds that the defendant waived

his right to conflict free representation during the June

2 hearing. Alternatively, the state argues that the defendant’s claim is unreviewable because the record is inadequate to determine whether the defendant waived his

right to conflict free representation prior to the June 2

hearing and whether counsel labored under an actual

conflict of interestthat adversely affect his performance

during plea negotiations. We conclude that the record

is inadequate to review the defendant’s claim on the

merits, and, therefore, we need not address whether

the defendant waived his right to conflict free representation during plea negotiations.

‘‘Almost without exception, we have required that a

claim of ineffective assistance of counsel must be raised

by way of habeas corpus, rather than by direct appeal,

because of the need for a full evidentiary record for

such [a] claim. . . . Moreover, we have stated as our

preference that all of the claims of ineffective assistance, those arguably supported by the record as well

as others requiring an evidentiary hearing, be evaluated

by the same trier in the same proceeding. . . . On the

rare occasions that we have addressed an ineffective

assistance of counsel claim on direct appeal, we have

limited our review to allegations that the defendant’s

sixth amendment rights had been jeopardized by the

actions of the trial court, rather than by those of his

counsel. . . . We have addressed such claims, moreover, only where the record of the trial court’s allegedly

improper action was adequate for review or the issue

presented was a question of law, not one of fact requiring further evidentiary development. . . .

‘‘In a case of a claimed [actual] conflict of interest

. . . in order to establish a violation of the sixth amendment the defendant has a two-pronged task. He must

establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest

adversely affected his lawyer’s performance. . . . We

have described an attorney’s conflict of interest as that

which impedes his paramount duty of loyalty to his

client. . . . Thus, an attorney may be considered to be

laboring under an impaired duty of loyalty, and thereby

be subject to conflicting interests, because of interests

or factors personal to him that are inconsistent, diverse

or otherwise discordant with [the interests] of his client

. . . .’’ (Citations omitted; emphasis in original; footnotes omitted; internal quotation marks omitted.) State
v. Crespo, supra, 246 Conn. 687–90; see also Cuyler v.

Sullivan, supra, 446 U.S. 350 (‘‘the possibility of conflict is insufficient to impugn a criminal conviction’’

[emphasis added]).

The record before us is inadequate to determine

whether counsel labored under a conflict of interest

during plea negotiations. The defendant contends that

plea negotiations always create a conflict of interest in

cases where defendants are jointly represented because

the joint representation prevents counsel from arguing

that one defendant should be given ‘‘a break’’ because

of certain mitigating factors or from negotiating a plea

deal that would require one client to implicate or testify

against another. Although the defendant correctly identifies several potential conflicts that might arise during

plea negotiations for jointly represented defendants, to

prevail in his claim the defendant must establish that

an actual conflict of interest arose during plea negotiations. The record demonstrates only that the defendant

was offered two plea deals and that he rejected both.

It does not reflect what transpired during plea negotiations. Nor does it reflect what counsel and the defendant discussed prior to or during plea negotiations. As

a result, we do not know whether counsel argued that

the defendant was more entitled to ‘‘a break’’ than Jose

or whether the defendant told counsel that he would

not accept a plea dealthatrequired him to testify against

his brother.

‘‘Accordingly, we shall not review at this time . . .

the defendant’s ineffective assistance [claim] that he

contends [is] adequately supported by the record. . . .

[W]e believe that his ineffective assistance [claim]

should be resolved . . . after an evidentiary hearing in

the trial court where the attorney whose conduct is in

question may have an opportunity to testify.’’ (Internal

quotation marks omitted.) State v. Taft, 306 Conn. 749,

769, 51 A.3d 988 (2012); see also State v. Daly, 111

Conn. App. 397, 400, 960 A.2d 1040 (2008) (‘‘it is well

established that as an appellate tribunal, we do not find

facts’’) cert. denied, 292 Conn. 909, 973 A.2d 108 (2009).

B

Finally, the defendant claims that a conflict of interest

adversely affected counsel’s performance at trial and

sentencing. With respect to trial, the defendant claims

that the joint representation prevented counsel from

effectively cross-examining Jose. With respect to sentencing, the defendant claims that the joint representation prevented counsel from effectively arguing that he

was entitled to a lesser sentence than Jose was. The

state responds that the defendant waived his right to

conflict free representation at trial and sentencing at

the June 2, 2014 hearing. Alternatively, the state argues

that the record is inadequate to review these claims on

the merits. We agree with the state.
The following additional facts are relevant to this

claim. At trial, Jose elected to testify on his own behalf,

but his testimony was limited to his arrest and booking.

During that testimony, Jose mentioned that he was

wearing ‘‘pajama pants’’ with ‘‘flip flops’’ on the night

in question, May 29, 2013.

We conclude that the defendant knowingly and voluntarily waived his right to conflict free representation at

trial and sentencing at the June 2 hearing. ‘‘Just as the

right to assistance of counsel may be waived in favor

of self-representation . . . so may a defendant waive

the right to conflict-free representation’’ so long as the

trial court determines ‘‘on the record that such a waiver

is knowing and intelligent.’’ (Citations omitted.) State

v. Williams, 203 Conn. 159, 167, 523 A.2d 1284 (1987).

‘‘If the defendant reveals that he is aware of and understands the various risks and pitfalls, and that he has

the rational capacity to make a decision on the basis

of this information, and if he states clearly and unequivocally . . . that he nevertheless chooses to hazard

[the] dangers of waiving conflict-free representation,

then his waiver may appropriately be accepted. . . .

The waiveris not vitiated simply because the defendant,

with the benefit of hindsight, might have chosen differently. A defendant need not be prescient in order to

waive knowingly and intelligently the right to conflictfree representation.’’ (Citations omitted; internal quotation marks omitted.) Id., 167–68.

At the June 2 hearing, the court canvassed the defendant concerning his waiver of his right to conflict free

representation. As part of that canvass, the court provided the defendant with several examples of the types

of conflicts that might arise at trial and sentencing and

cautioned the defendant that by continuing with joint

representation ‘‘[you] run the risk of your attorney having to favor or choose to favor one defendant more

than the other.’’ The defendant, after being given an

opportunity to consult further with counsel and to ask

the court questions concerning his rights and waiver,

confirmed that he wanted to waive any potential conflict of interest that might arise from the joint representation and that he wanted counsel to continue to

represent him.

The defendant now argues that this waiver was not

knowing and intelligent because the court (1) improperly remarked that it did not believe, after previewing

the state’s evidence, that a conflict of interest existed

and (2) never explained what it meant to consult with

‘‘outside counsel.’’ We disagree. We are not persuaded

that the court’s frank assessment of the conflict situation prevented the defendant from understanding the

risks associated with joint representation. The court

acknowledged when speaking to the defendant that a

conflict of interest could exist ‘‘although I’m not seeing

it here.’’ The court also conducted a thorough and infor-
mative canvass that explored a variety of conflicts that

might arise before, during, and after a trial. The defendant never indicated that he did not understand the

court’s advisement or the import of his waiver. For

these same reasons, we cannot conclude thatthe court’s

failure to explain further the term ‘‘outside counsel’’

prevented the defendant from understanding the risks

associated with joint representation. Accordingly,

because the defendant waived his right to conflict free

representation, he cannot claim that counsel rendered

ineffective assistance by laboring under a conflict at

trial or sentencing.

Nevertheless, even if we were to assume for the sake

of argument that the defendant did not waive his right

to conflict free representation at trial and sentencing,

his claims are unreviewable. The defendant first argues

that counsel was ineffective for not eliciting testimony

from Jose that he and the defendant were not involved

in the attempted burglary or threatening of the victims

and for not cross-examining Jose concerning his assertion that he was wearing flip-flops during the booking

process. The defendant appears to argue that by not

soliciting testimony from Jose that he and the defendant

were not involved in the attempted burglary, counsel

permitted Jose implicitly to admit that they were

involved in the incident. Additionally, the defendant

appears to argue that by permitting Jose to testify

unchallenged that he was wearing flip-flops, counsel

permitted Jose to testify that ‘‘he [Jose], unlike Francisco, should be ruled out as trying to kick down the

back door of Kenney’s rooming house.’’4

The defendant also argues that counsel was ineffective for not highlighting at his sentencing certain factors

that would have painted him in a more sympathetic

light than Jose and would have supported an argument

for a lesser sentence. For example, he believes that the

joint representation prevented counsel from emphasizing that, unlike Jose, he suffered from a traumatic brain

injury, which impaired his cognitive abilities,5 and had

no prior convictions for assault on a police officer.6

Contrary to the defendant’s assertion, we cannot conclude from this record that counsel’s actions at trial

and sentencing were the product of an impaired duty

of loyalty. The decision not to question Jose about the

attempted burglary or his footwear may have been

based on counsel’s ethical obligations; see Rule 3.3 of

the Rules of Professional Conduct;7 or part of a reasonable trial strategy, properly discussed with and agreed

to by the defendant. Similarly, the decision not to highlight the factors identified by the defendant at the sentencing hearing might also have been part of a

reasonable sentencing strategy on the part of counsel.

Accordingly, we decline to review the defendant’s ineffective assistance claims.

The judgment is affirmed.
In this opinion the other judges concurred.

1 The defendant also appears to raise a due process claim. In his statement

of the issues, the defendant alleges a due process violation. Similarly, when

addressing the reviewability of his claim, the defendant argued that the

court committed a ‘‘ ‘due process’ error’’ by failing to conduct a sufficient

inquiry into the existence of a conflict of interest and that, therefore, the

case should be remanded for further proceedings. See Wood v. Georgia, 450

U.S. 261, 272–74, 272, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981) (case remanded

sua sponte with instructions for determination of whether conflict of interest

of employees’ counsel, who also represented employer, existed at probation

revocation hearing such as to constitute violation of employees’ due process

rights). The defendant did not subsequently analyze, however, the relationship between the law cited and the facts of his case. Instead, the defendant’s

analysis identifies this claim as a ‘‘Holloway claim’’ and focuses exclusively

on sixth amendment jurisprudence. Accordingly, we decline to review the

defendant’s due process claim because it was briefed inadequately. See

State v. Buhl, 321 Conn. 688, 724, 138 A.3d 868 (2016).

2 The court misspoke when it indicated that jury selection commenced

the next day, i.e., Friday, May 30, 2014. Instead, jury selection commenced

the following Monday, i.e., Monday, June 2, 2014.

3 The defendant takes issue with the fact that the court did not address

the conflict issue during his pretrial hearing. The defendant overlooks the

fact that counsel did not alert the court to the potential conflict of interest

until Jose’s case was called. When the court became aware of the potential

conflict issue, it immediately conducted an inquiry into whether a conflict

of interest had arisen or was likely to arise in the joint representation.

4 As we previously stated, Kenney also identified the defendant as the

individual who attempted to kick in the back door.

5 We observe that at the sentencing hearing, counsel observed how the

defendant was victimized in an accident that ‘‘left him with some physical

difficulties’’ and how he continues to attempt to find work despite those

difficulties. Additionally, although the defendant’s presentence investigation

report is not part of the record before us, at the sentencing hearing, the

court observed that the presentence investigation report discussed the attack

that caused the defendant’s traumatic brain injury and other medical issues.

6 We observe that although the defendant does not have prior convictions

for assault on a police officer, he has several prior convictions, including

convictions for breach of peace, threatening in the second degree, and

violation of a protective order.

7 Rule 3.3 of the Rules of Professional Conduct states in relevant part:

‘‘(a) A lawyer shall not knowingly . . . (3) Offer evidence that the lawyer

knows to be false. . . .’’