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GENE NEWLAND v. COMMISSIONER

OF CORRECTION

(SC 19381)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,

Espinosa and Robinson, Js.
Argued October 7, 2015—officially released August 30, 2016

Michael J. Proto, assistant state’s attorney, with

whom, on the brief, was Patricia M. Froehlich, state’s

attorney, for the appellant (respondent).

Stephen Lebedevitch, with whom were James J.

Ruane and, on the brief, Grayson Colt Holmes and

Stephanie M. O’Neil, for the appellee (petitioner).
Opinion

ZARELLA, J. This certified appeal involves two

related claims raised by the petitioner, Gene Newland,

for the first time during postconviction proceedings,

namely, whether the trial court conducted an inadequate canvass prior to finding that he waived his right

to counsel under the sixth and fourteenth amendments

to the United States constitution and article first, § 8,

of the Connecticut constitution, and whether the trial

court erroneously concluded that the waiver was knowing, intelligent and voluntary. The respondent, the Commissioner of Correction, appeals from the judgment of

the Appellate Court, which affirmed the judgment of

the habeas court granting the petitioner a new trial on

the ground that the Division of Public Defender Services

(public defender’s office) had erroneously determined

that he was ineligible for the assistance of counsel. The

respondent contends that the Appellate Court incorrectly concluded that the petitioner had raised a claim

of public defender error in the habeas court and that

the claim was not procedurally defaulted because the

cause and prejudice necessary to excuse procedural

default is presumed when the right to counsel has been

violated. We agree with the respondent that the petitioner did not advance a claim of public defender error

in the habeas court but, rather, claimed that the trial

court had conducted an inadequate canvass and erroneously concluded that he knowingly, intelligently and

voluntarily waived his right to counsel. We thus reverse

the judgment of the Appellate Court and direct that

court to remand the case to the habeas court to address

these claims. We decline to consider whether the cause

and prejudice necessary to excuse procedural default

may be presumed in the context of the petitioner’s

claims of trial court error because the habeas court and

the Appellate Court did not conclude that default was

excused with respect to those claims, and, accordingly,

the issue is not properly before this court.

I

FACTS AND PROCEDURAL HISTORY

The record reveals the following undisputed facts and

procedural history. In 2007, the petitioner was charged

with one count of sexual assault in the first degree in

violation of General Statutes § 53a-70 (a) (2) and one

count of risk of injury to a child in violation of General

Statutes (Rev. to 2003) § 53-21 (a)(2)in connection with

an incident that occurred in 2003. At his arraignment in

the judicial district of Windham in May, 2007, Assistant

Public Defender Ernest Green, Jr., appeared on behalf

of the petitioner for bond purposes only. The petitioner

subsequently posted $1000 on a $10,000 bond with the

partial help of a loan from a friend and was released

from custody. At the next pretrial hearing in June, 2007,

the petitioner appeared without counsel. The assistant
state’s attorney (prosecutor) informed the court that

the petitioner had applied for a public defender but

had been deemed ineligible. In accordance with the

recommendation of the public defender’s office, as represented by the prosecutor, the trial court continued

the case for six weeks to allow the petitioner to retain

private counsel.

Between July, 2007, and December, 2008, the petitioner appeared as a self-represented party for at least

twelve pretrial scheduling hearings. At more than one

of these hearings, the petitioner informed the court that

the public defender’s office had deemed him ineligible

for appointed counsel due to his ownership of property,

the house that his ‘‘family’’ was living in,1 but that he

nonetheless was having difficulty securing an attorney

because he could not afford to hire one. At one hearing,

the petitioner indicated that he was in the process of

trying to refinance his property to obtain the funds. The

petitioner’s case was repeatedly continued to allow him

more time to secure counsel. No representative from

the public defender’s office ever appeared in court to

address the denial of services.

At a hearing in October, 2008, the petitioner indicated

that his situation had worsened because he had lost

one of his jobs due to a lack of transportation and

because his house was in foreclosure. He asked the

court if someone could assist him in preparing his case.

In response, the court stated: ‘‘I can’t tell somebody to

do that for you. You either qualify for the public

defender services or you don’t, and that’s a determination made by them independent[ly] of the court.’’ The

court suggested that the petitioner reapply for a public

defender if his financial situation worsened since he

first applied.

At a December, 2008 hearing, the trial court informed

the petitioner that it was scheduling the petitioner’s

case for a jury trial due to the fact that nearly two years

had elapsed since his arrest. The court agreed not to

put the case on the jury list until at least March, 2009,

in order to allow the petitioner more time to retain

counsel. The court warned the petitioner that trial

would proceed regardless of whether he secured counsel at that time.

In April, 2009, the petitioner appeared as a self-represented party to commence jury selection. At the outset,

the court stated that it assumed that the petitioner had

had plenty of time by this point to retain counsel. In

response, the petitioner indicated that his efforts had

been unsuccessful because he could not afford the minimum payment that counsel demanded, he was facing

foreclosure on his property, and he had twice been

deemed ineligible for public defender services. He indicated that he had just learned that he might be able to

‘‘put some kind of attachment to the property for a

lawyer, so it’s [going to] hopefully aid me in getting
counsel because I [did not have] any idea that I could

do that before . . . .’’ The following exchange then

ensued:

‘‘The Court: But you have been advised over the past

two years on different occasions . . . of your right to

have an attorney represent you?

‘‘[The Petitioner]: Yes, I have.

‘‘The Court: Okay. And implicit in that right is the

right to a public defender if you couldn’t afford private

counsel, but you say you’ve tried twice, and you’ve been

deemed not to be qualified.

‘‘[The Petitioner]: Due to the fact I own property. As

soon as you . . . state that you own property or have a

mortgage on property, you’re automatically disqualified

for a public defender, they told me. So, because I have

property in my name, I’m not qualified for a public

defender.

‘‘The Court: So implicit in what you’re telling me is

you’re waiving yourright to have counselrepresent you.

‘‘[The Petitioner]: At present, yes. Unfortunately, I

have no other choice.

‘‘The Court: All right. I’m going to ask you some

questions to ensure that you know exactly what you’re

getting into.’’

In addition to addressing the petitioner with regard

to matters required for a proper waiver of counsel under

Practice Book § 44-3, the court inquired about the petitioner’s circumstances. The petitioner informed the

court that he was thirty-seven years old and had a tenth

grade education. He also explained that he had limited

income and no family members with means to assist

him. He indicated that he was not familiar with the

rules of criminal procedure but that he had been given

the Code of Evidence and some basic advice by Assistant Public Defender Green, and hoped to become familiar with these rules and procedures before trial. In

response to the question of whether he felt that he had

the training, experience and skill to represent himself,

he stated: ‘‘Honestly, no, I don’t feel I possess that

training. . . . But I’m at the point where I have no other

choice.’’ When the court asked the petitioner whether

he thought he had been given a reasonable time in

which to seek private counsel, he responded: ‘‘Yes, I

have. I’ve done what I can with my means, unfortunately.’’ An exchange then ensued about the petitioner’s

efforts to obtain counsel. The court noted that it had

never had a defendant represent himself with charges

as serious as those facing the petitioner but explained

that justice demands that at some point the state have

the right to try its case. At the conclusion of its canvass,

the court stated: ‘‘I’m going to make a finding under

the circumstances that the [petitioner] has waived his

right to be represented by counsel. I’m disappointed
that the court is asked to make this finding, but I don’t

see any alternative.’’ The trial court made no express

finding regarding whether the petitioner had the financial means to hire counsel or whether he had intentionally engaged in dilatory conduct. See, e.g., United States

v. Bauer, 956 F.2d 693, 695 (7th Cir.) (‘‘the combination

of ability to pay for counsel plus refusal to do so does

waive the right to counsel’’ [emphasis in original]), cert.

denied, 506 U.S. 882, 113 S. Ct. 234, 121 L. Ed. 2d 169

(1992); see also Fischetti v. Johnson, 384 F.3d 140, 145

(3d Cir. 2004) (‘‘[a] defendant’s right to counsel is not

without limit and cannot be the justification for inordinate delay or manipulation of the appointment system’’); United States v. Mitchell, 777 F.2d 248, 256 (5th

Cir. 1985) (‘‘The right to choose counsel may not be

subverted to obstruct the orderly procedure in the

courts or to interfere with the fair administration of

justice. It is a right and a proper tool of the defendant;

it cannot be used merely as a manipulative monkey

wrench.’’ [Internal quotation marks omitted.]), cert.

denied sub nom. Prado v. United States, 475 U.S. 1096,

106 S. Ct. 1493, 89 L. Ed. 2d 895 (1986), and cert. denied,

476 U.S. 1184, 106 S. Ct. 2921, 91 L. Ed. 2d 549 (1986).

The court did not appoint standby counsel.

Following a jury trial, the defendant was found guilty

of both the sexual assault and risk of injury counts.

The trial court rendered judgment in accordance with

the verdict and imposed a total effective sentence of ten

years imprisonment followed by eight years of special

parole, with conditions including registration as a sexual offender. The petitioner did not appeal from the

judgment of conviction.

Thereafter, the petitioner, as a self-represented party,

filed a petition for a writ of habeas corpus, alleging that

he had wrongfully been denied counsel. The petitioner

was referred to the public defender’s office, which

determined that the petitioner was indigent. Counsel

filed an amended two count petition, claiming that the

trial court had (1)inadequately canvassed the petitioner

prior to finding that he had waived his right to counsel,

and (2) incorrectly concluded that the petitioner knowingly, intelligently and voluntarily waived his right to

counsel. The amended petition alleged, inter alia, that

the claims were not procedurally defaulted because

cause and prejudice is presumed when a petitioner’s

right to counsel has been violated.

The respondent thereafter filed a return asserting an

affirmative defense of procedural default as to both

counts, citing the petitioner’s failure to raise these

claims before the trial court and his failure to appeal

from the judgment of conviction. The respondent then

filed a motion for summary judgment on the basis of

that defense, claiming that no presumption of cause

and prejudice applies to claims of an inadequate waiver

canvass. The habeas court denied the motion without
prejudice.

During the evidentiary hearing on the petition, the

petitioner introduced the transcripts of the criminal

proceedings without objection. When the petitioner

sought to introduce evidence regarding his bank

account balances between June, 2007, and April, 2009,

his efforts to obtain counsel, and the procedures for

determining eligibility for public defender services, the

respondent objected. The respondent claimed that this

evidence was irrelevant because the petitioner had not

advanced a challenge to the determination of the public

defender’s office that he was not indigent. The petitioner replied that the evidence was relevant to the

claims that he had raised in his petition. The habeas

court overruled the objection without prejudice to being

renewed in the posttrial briefs. Thereafter, the petitioner testified that he had a minimal or negative bank

account balance during this period, which he supported

with bank account statements, and that he was working

a low wage job in April, 2009. He testified that he had

made numerous, unsuccessful efforts to obtain private

counsel after he had been denied a public defender,

and that no one had informed him that he had the right

to appeal from the eligibility decisions of the public

defender’s office. The petitioner acknowledged that he

had approximately $50,000 in equity in his property,

based on the property’s appraised value when he refinanced it in January, 2007, and the outstanding mortgage on the property.2 He offered evidence to establish

that an action to foreclose the mortgage had been commenced in July, 2008.

The petitioner also proffered testimony from Ramon

J. Canning, the Public Defender for the judicial district

of Windham, where the petitioner filed his applications,

and Brian S. Carlow, the Deputy Chief Public Defender

in the Office of the Chief Public Defender. Neither had

any knowledge of the petitioner’s applications, which

had been destroyed, and, therefore, they only offered

testimony regarding application procedures and eligibility criteria generally. Although there was no dispute

that, at the time of the waiver canvass in April, 2009,

the petitioner would have met the income eligibility

guidelines for public defender services on the basis

of the income he reported to the trial court and the

seriousness of the charges, there were some inconsistencies in Canning’s and Carlow’s testimony. Canning

testified that equity in property could be a disqualifying

factor, which would not be affected by a pending foreclosure because a property owner might still have considerable equity despite the pending foreclosure. By

contrast, Carlow assumed that the equity in a property

would not be readily accessible if the property was in

foreclosure, barring unusual circumstances, and, therefore, property subject to foreclosure generally would

not be a factor in assessing eligibility. Carlow further

testified that, in the late 2000s, property ownership
would not have been given significant weightin disqualifying an income eligible applicant because he assumed

thatrelatively few people would have been able to easily

access any equity due to the state of the economy at

that time. In addition, Carlow testified that the eligibility

decision of the public defender’s office is only a recommendation, with the trial court having ultimate authority to decide whether a defendant is eligible, whereas

Canning indicated that the eligibility decision is final

unless challenged.

The habeas court thereafter granted the petition, concluding that the petitioner’s sixth amendment right to

counsel had been violated. In support of its decision,

the habeas court made the following findings. At the

time of his trial, the petitioner was making between

$300 and $350 per week. He had no available funds in

any bank accounts. He owned a residential property

that was subject to a mortgage in the amount of approximately $117,000 and that had a fair market value of

$168,000 prior to his 2007 arrest. As of July, 2008, and

during the petitioner’s criminal trial, the petitioner’s

property was subject to a foreclosure action based on

his default on the mortgage. The petitioner had easily

met the income eligibility requirements set by the Public

Defender Services Commission for a serious felony

charge and, therefore, was presumed to be eligible for

services. The public defender’s office erred in denying

the petitioner’s application on the basis of his property

ownership because the equity was limited and not

readily accessible, and because the property was subject to an ongoing foreclosure action.

With respect to the respondent’s affirmative defense,

the habeas court concluded that a claim of public

defender error was not procedurally defaulted. It relied

on Dennis v. Commissioner of Correction, 134 Conn.

App. 520, 532, 536, 39 A.3d 799 (2012), for the proposition that a denial of counsel establishes the cause and

prejudice necessary to excuse default. The habeas court

further reasoned that, because neither the public

defender’s office nor the trial court had informed the

petitioner that he had a right to appeal from the denial

of his applications for public defender services,3 and

because the petitioner had explained his financial situation to the trial court, he was not defaulted for failure

to appeal from the denial of his applications to the

trial court.

With respect to the merits of the petitioner’s claim,

the habeas court determined that ‘‘the correctness of

the public defender’s indigency determination goes

directly to the petitioner’s claim that he did not knowingly, intelligently and voluntarily waive his right to

counsel and, thus, is properly before the court.’’ Ultimately, the court concluded: ‘‘[T]he petitioner did not

knowingly, intelligently and voluntarily waive his right

to counsel because he mistakenly believed that he did
not qualify for the public defender’s services and only

acquiesced to representing himself because he could

not afford or otherwise retain private counsel. Had the

petitioner been properly informed of his right to the

services of a public defender, he would have accepted

those services. Thus, but for the public defender’s erroneous eligibility determination, the petitioner would not

have implicitly or otherwise waived his right to counsel,

and the trial court would not have accepted the implicit

waiver had it known of the petitioner’s eligibility.’’

(Internal quotation marks omitted.) The habeas court

rendered judgment granting the habeas petition,

vacated the petitioner’s conviction, and ordered that

he be granted a new trial.

The respondent appealed from the judgment of the

habeas court to the Appellate Court. On appeal, the

respondent claimed that (1) the habeas court improperly denied his motion for summary judgment because

the cause and prejudice necessary to overcome procedural default is not presumed in a claim that the trial

court’s canvass and determination of waiver were

improper, (2) the habeas court improperly granted the

petition on the basis of a claim that had not been raised

in the petition, and (3) even if properly considered, the

petitioner had not met his burden of proving that he

had been deprived of counsel due to an error by the

public defender’s office. See Newland v. Commissioner

of Correction, 151 Conn. App. 134, 146 and n.1, 150,

152, 94 A.3d 676 (2014). The Appellate Court affirmed

the judgment of the habeas court; id., 153; relying on

reasoning largely consistent with that of the habeas

court. See id., 146–53. The Appellate Court summarily

rejected the respondent’s contention that the petitioner’s claim was procedurally defaulted by virtue of the

petitioner’s failure to appeal from the judgment of conviction, reasoning: ‘‘[B]ecause 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.’’ Id., 146–47 n.1.

We thereafter granted the respondent’s petition for

certification to appeal, limited to two issues: First,

‘‘[d]id the Appellate Court properly affirm the habeas

court’s determination that ‘cause and prejudice’ [are]

presumed in a claim of trial court error?’’4 Newland v.

Commissioner of Correction, 314 Conn. 916, 917, 100

A.3d 406 (2014). Second, ‘‘[d]id the Appellate Court

properly affirm the habeas court’s determination that

a claim of public defender error was properly before

the habeas court, and, if so, did the Appellate Court

properly determine that the habeas court correctly

determined that the petitioner had met his burden of

proof?’’ Id.
In resolving the respondent’s claims, we are mindful

that ‘‘[t]he underlying historical facts found by the

habeas court may not be disturbed unless the findings

were clearly erroneous. . . . Historical facts constitute

a recital of external events and the credibility of their

narrators. . . . Questions of law and mixed questions

of law and fact [however, are subject to] plenary

review.’’ (Internal quotation marks omitted.) Crawford

v. Commissioner of Correction, 294 Conn. 165, 174, 982

A.2d 620 (2009). Except as otherwise noted, the issues

in the present case are subject to plenary review.

II

NATURE OF THE PETITIONER’S HABEAS CLAIMS

Ordinarily, our first task would be to consider

whether the habeas court properly concluded that procedural default did not serve to bar the petitioner’s

claims. In the present case, however, the habeas court

determined that there was no procedural default only

after concluding that the petitioner had alleged public

defender error. We thus begin with the respondent’s

contention that the petitioner did not advance a claim

of public defender error. We conclude, following a close

examination of the record, that the petitioner did not

claim public defender error.5 Accordingly, the Appellate

Court improperly upheld the habeas court’s determination that a claim of public defender error was not procedurally defaulted.

‘‘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. . . . 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. . . .

[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.’’ (Citation omitted; internal quotation marks omitted.) Lebron v. Commissioner of Correction, 274 Conn. 507, 519–20, 876

A.2d 1178 (2005), overruled in part on other grounds

by State v. Elson, 311 Conn. 726, 91 A.3d 862 (2014). In

the present case, the habeas pleadings, the petitioner’s

filings in the habeas court, the respondent’s procedural

default defense and the parties’ arguments at the evidentiary hearing all support the conclusion that the petitioner alleged error by the trial court and not by the

public defender’s office.
The petitioner’s two count amended habeas petition

alleged that (1) ‘‘[t]he trial court conducted an inadequate canvass of [the] petitioner prior to finding that

[the] petitioner had waived his right to counsel,’’ and

(2) ‘‘[t]he trial court erroneously concluded that [the]

petitioner had knowingly and intelligently waived his

right to counsel.’’ The amended petition also alleged

that these errors occurred after the petitioner was twice

denied access to the services of a public defender and

before he was able to find private counsel. The pleadings contained no allegation that the decision of the

public defender’s office was incorrect or that the petitioner was indigent under General Statutes § 51-297,

and the petitioner never attempted to amend his petition

to include such allegations. See Practice Book § 23-32

(‘‘The [habeas] petitioner may amend the petition at

any time prior to the filing of the return. Following the

return, any pleading may be amended with leave of the

judicial authority for good cause shown.’’); see also

Practice Book § 10-62 (‘‘[i]n all cases of any material

variance between allegation and proof, an amendment

may be permitted at any stage of the trial’’). Furthermore, because the petitioner did not allege public

defender error, the respondent’s return alleged procedural default based on the petitioner’s failure to appeal

the trial court’s canvass and waiver determination to

the Appellate Court, and not because he failed to appeal

to the trial court from the eligibility determinations of

the public defender’s office under § 51-297 (g).

Thereafter, the petitioner claimed in his pretrial brief

to the habeas court that the canvass was inadequate

and that ‘‘the [trial] court erroneously concluded that

[he] had waived his right to counsel.’’ In support of

these claims, the petitioner specifically contended, inter

alia, that the trial court had failed to obtain sufficient

information on the record to determine that he knowingly, intelligently and voluntarily waived his right to

counsel and that the court’s determination of waiver

was unreasonable in the absence of a clear and unequivocal request by the petitioner to represent himself.

Similarly, at the evidentiary hearing, the petitioner’s

counsel not only reiterated the petitioner’s claims of

trial court error but repeatedly denied that the petitioner was advancing a claim that the public defender’s

office had made an improper indigency determination

leading to the denial of his application for trial counsel.

When counsel for the respondent objected on relevancy

grounds to the petitioner’s testimony regarding his

financial position at the time he first applied for the

assistance of a public defender, the petitioner’s counsel

explained: ‘‘There are two counts in the petition. The

first, as opposing counsel has stated, is an inadequate

canvass. The second count, however, is that the court

erroneously concluded that the petitioner waived his

right [to counsel] knowingly and voluntarily. This evi-
dence we’re using to show that the petitioner did not

waive his right to counsel, that he, in fact, could not

afford private counsel after [he] was deemed ineligible

by the public defender. It’s highly relevant to the issue

of voluntariness, and it shows that the petitioner did

not have the means to hire counsel after he was denied

access to the public defender, and, therefore, when he

was forced to represent himself [at] trial, it was because

he couldn’t get another attorney.’’ (Emphasis added.)

When the petitioner continued to testify regarding

his financial status at the time he filed his original application,the respondent’s counsel again objected, arguing

that the financial testimony was relevant only to the

indigency determination, which should have been considered in a different forum. The petitioner’s counsel

disagreed, explaining as follows: ‘‘[The petitioner’s]

attempts to find counsel . . . don’t go to whether the

public defender determined he was eligible or ineligible. We’re just going into his attempts to find counsel,

which again [go] to the issue of voluntariness and do

not really weigh on whether he was eligible or not.

I mean it does sort of, you know, tangentially, but,

specifically, his attempts to find counsel go to . . .

the issue of voluntariness and not to whether the public

defender is—eligible or ineligible.’’ (Emphasis added.)

The respondent’s counselthen cited case law describing

the criteria for determining whether there had been a

knowing, intelligent and voluntary waiver and argued

that the petitioner’s financial testimony had no bearing

on the trial court’s waiver determination because it did

not relate to the applicable criteria.6 The petitioner’s

counsel countered that the testimony was relevant

because the petitioner’s economic circumstances and

his continuing efforts to obtain counsel had a direct

bearing on whether the trial court could have concluded, in light of its inadequate canvass, that he knowingly, intelligently and voluntarily waived his right to

counsel.

The habeas court subsequently observed that the evidence introduced by the petitioner, which the court had

allowed over the objection of the respondent’s counsel,

was primarily about what the public defender’s office

did or did not do, whereas the habeas petition was

about what the trial court did or did not do. In response,

the petitioner’s counsel reminded the court that the

petitioner’s two claims related to the trial court’s inadequate canvass and improper waiver determination and

that the petitioner’s alleged waiver had not been clear

and unequivocal, as required by law. Following a

lengthy discussion between the court and counsel concerning the petitioner’s financial circumstances when

he applied for public defender assistance and the effect

of the ineligibility determination on his right to counsel,

the petitioner’s counsel repeated: ‘‘[O]ur argument

. . . is that to waive counsel, [it] doesn’t really matter

if you’re indigent or not; you have to make a clear,
unequivocal waiver of that, and [the petitioner] did not

make that clear, unequivocal waiver.’’ (Emphasis

added.) Counsel also stated: ‘‘[T]he standard is knowingly, voluntarily, and intelligently. I don’t think that

indigency is something that the court has to determine

. . . .’’ (Emphasis added.)

The habeas court finally acknowledged that the petitioner had pleaded his case as ‘‘an attack on the . . .

voluntariness of the [waiver]’’ but asked the respondent’s counsel what would happen if the trial court

had acted properly but the public defender’s office had

made an improper eligibility determination. The respondent’s counsel replied that, because the petitioner had

never made that claim, he was unprepared to address

it. The court then asked him to address whether the

court could consider such a claim, as well as its merits,

in his posttrial brief, since the petitioner ‘‘didn’t plead

it . . . .’’

The respondent stated at the outset of his posttrial

brief that he first would argue that the petitioner’s

claims were barred by procedural default and then

would argue the merits of the claims the petitioner

actually had raised, ‘‘specifically, claims of error on the

part of the trial court.’’ The respondent also stated that

he would address the claim of public defender error

that had not been raised in the amended petition but

in furtherance of which the petitioner had been allowed

to present evidence over the objections of the respondent’s counsel at the habeas hearing and to which the

respondent continued to object. The respondent added

that he would end his brief by addressing the specific

questions posed by the habeas court.

On the issue of public defender error, the respondent

objected and separately moved to strike all materials

attached to or referenced in the petitioner’s posttrial

brief intended to support an argument that he was indigent at the time the public defender’s office determined

otherwise on the same relevancy grounds that the

respondent’s counsel had objected to similar evidence

at the habeas hearing. The respondent also argued that

these references constituted inadmissible hearsay that

he had not been given an opportunity to challenge. In

addition, the respondent argued that the evidence had

closed when the parties rested their cases at the habeas

hearing and that the petitioner had not sought permission to reopen the record forthe admission of additional

evidence. In response to the habeas court’s query

regarding its authority to decide a claim of public

defender error, the respondent argued that the petitioner had raised no valid claim relating to the indigency

determination by the public defender’s office and that

the petitioner’s financial position thus was irrelevant

and outside the scope of his habeas petition.

In his posttrial brief, the petitioner did not directly

address whether the habeas court had the authority to
consider a claim of public defender error but argued

that there was no need for the habeas court to find that

the petitioner was indigent in order to conclude that

the trial court had conducted an inadequate canvass and

made an improper waiver determination. The petitioner

further argued that, even if there was such a need, the

evidence introduced at the habeas hearing established

his indigency at the time of the trial court’s canvass

and waiver determination. The petitioner concluded by

citing case law from other jurisdictions and General

Statutes § 51-296 for the proposition that a defendant

has not necessarily waived his right to counsel when

he is deemed ineligible for a public defender by the

trial court and cannot afford the assistance of private

counsel.

In addition to this direct and unequivocal evidence

that the habeas court and the parties understood the

petitioner’s claims throughout the habeas proceedings

as alleging trial court error, our review of the petitioner’s presentation of his case also demonstrates that he

did not intend to reconstruct the application process

to prove public defender error in June, 2007, or in

November or December, 2008, when his applications

for a public defender were denied. Rather, he intended

to prove trial court error in April, 2009, when the waiver

canvass occurred. The petitioner did not offer copies

of his applications for a public defender, testimony from

the person in the public defender’s office who denied

either of his applications, or his own testimony regarding the interview conducted in connection with review

of his financial affidavit. The petitioner did not attempt

to fully reconstruct the substance of the applications;

some significant information was never elicited, and

other significant information was elicited only through

cross-examination of the petitioner by the respondent’s

counsel and the habeas court’s questions. For example,

the petitioner offered evidence regarding his income in

April, 2009, by way of his representation in the trial

court waiver canvass but did not attempt to establish

his income in 2007 and 2008. Although the petitioner

offered evidence regarding his bank account balance

in June, 2007, and December, 2008, through April, 2009,

to prove that he lacked the funds to hire private counsel,

information regarding the property (purchase price, fair

market value, refinancing, etc.) and the posting of bond

was elicited through questions by the respondent’s

counsel and the habeas court.

The evidence elicited regarding the procedures of the

public defender’s office also did not relate to the dates

when the two applications were denied. The petitioner

produced the 2009 public defender income guidelines;

he did not produce the 2007 or 2008 guidelines. The

petitioner likewise did not offer the policy manual for

the public defender’s office, which guides eligibility

decisions, for any period. Canning offered only generalized testimony about public defender decision making
and procedures, and nothing specific to 2007 or 2008.

Carlow’s testimony addressed 2007 through 2009 procedures generally, at the habeas court’s request. The one

hypothetical question regarding the petitioner’s eligibility based solely on income and the criminal charges

was framed in reference to April, 2009.

In sum, the record overwhelmingly supports the conclusion that the petitioner’s theory of the case was

grounded in trial court error and that the evidence elicited by counselregarding the petitioner’s trial testimony

as to his limited income, his lack of financial resources,

and his efforts to obtain counsel was intended to support his claims concerning the trial court’s allegedly

inadequate canvass and improper waiver determination. In addition, the petitioner’s counsel specifically

stated several times during the evidentiary hearing that

the petitioner’s testimony regarding his financial circumstances demonstrated that his wavier was not

knowing, intelligent and voluntary, and that he had been

compelled to represent himself in spite of his lack of

adequate resources. Counsel thus suggested that, if the

trial court had conducted a proper canvass, it would

have recognized the petitioner’s dire situation and

appointed a public defender to represent him, or would

have given him more time to obtain the resources he

required to obtain private counsel. Accordingly, the

habeas court ignored the pleadings and the petitioner’s

arguments during the habeas proceedings and redefined

the petitioner’s claims as alleging public defender error,

and the Appellate Court improperly upheld the habeas

court’s conclusions that the petitioner’s alleged claim

of public defender error was not procedurally defaulted

and that the erroneous ineligibility determination had

resulted in a denial of his constitutional right to the

assistance of counsel.

Thus, we must reverse the judgment of the Appellate

Court and direct that court to remand the case to the

habeas court for it to consider whether the petitioner’s

claims of trial court error, which he alleged in his original petition, are procedurally defaulted and, if they are

not, to consider the claims on their merits. In addition,

if counsel requests, the habeas court should consider

allowing an amendment to the habeas petition to

include a claim of public defender error, the issue the

habeas court decided but the petitioner never alleged.7

The judgment of the Appellate Court is reversed and

the case is remanded to that court with direction to

remand the case to the habeas courtforfurther proceedings in accordance with the preceding paragraph.

In this opinion ROGERS, C. J., and PALMER, EVELEIGH and ESPINOSA, Js., concurred.

1 The child victim, who was related to both the petitioner and to the

petitioner’s then fiance ́e, resided with the petitioner and his fiance ́e in the

petitioner’s house. Following the allegations of sexual abuse, the petitioner

moved out of the house and rented a place to live, while his former fiance ́e

and the child remained in the house.
2 This refinancing occurred eleven months before the petitioner represented to the trial court that he was ‘‘in the process of trying to refinance

[his] property’’ to obtain the funds to hire counsel. In the habeas court, the

petitioner testified that he had not tried to refinance the property after the

January, 2007 refinancing because he ‘‘already knew that [he] . . . had

maxed out what [he] was able to refinance on a percentage of its value.’’

When the habeas court questioned the petitioner about his contrary statement to the trial court, the petitioner replied that he had misstated what

he had meant to say, which was simply that he was trying to ‘‘get something

where I could use the property value,’’ and that he ‘‘was probably trying to

contact people to see if [he] could even get anything else out . . . .’’

3 Canning testified that applicants who are deemed ineligible by the public

defender’s office are ‘‘almost universally’’ told of their right to appeal from

that decision to the court.

4 A more accurate representation of the Appellate Court’s decision is that

it upheld the habeas court’s determination that cause and prejudice are

presumed when a claim concerns public defender error.

5 We note that, although the habeas court’s decision rested on the propriety

of the threshold determination by the public defender’s office that the petitioner did not qualify under its guidelines and policies, and the petitioner’s

unawareness that this determination was clearly erroneous, there is no

precedent for such a theory in our courts, and the petitioner has not cited

any precedentfrom otherjurisdictions that supports such a theory. Nevertheless, we need not consider whether such a theory is cognizable in light of

the record in the present case, which reveals that the petitioner did not

advance such a theory in the habeas court.

6 The petitioner’s counsel referred to State v. Coleman, 83 Conn. App.

672, 851 A.2d 329, cert. denied, 271 Conn. 910, 859 A.2d 571 (2004), cert.

denied, 544 U.S. 1050, 125 S. Ct. 2290, 161 L. Ed. 2d 1091 (2005), in which the

Appellate Court observed that ‘‘[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.’’(Internal quotation marks

omitted.) Id., 685, quoting State v. Bangulescu, 80 Conn. App. 26, 42–43,

832 A.2d 1187, cert. denied, 267 Conn. 907, 840 A.2d 1171 (2003); see also

Practice Book § 44-3.

7 Although we acknowledge the complicated circumstances that led to

the petitioner’s lack of representation by counsel at trial, we do not endorse

Justice McDonald’s suggestion that the court exercise its supervisory powers

over the administration of justice to adopt a prophylactic rule that would

prevent trial courts from trying a defendant deemed ineligible for public

defender services as an unrepresented party without first holding a hearing

on the issue of indigency. Rather, we believe this issue should be addressed,

if at all, by the Rules Committee of the Superior Court, which provides a

more appropriate forum in which to fully and fairly consider any potential

amendment to the procedural rules.