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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 erroneouslyconcludedthatthe waiverwas knowing, intelligentandvoluntary. The respondent, the Commissioner of Correction, appeals from thejudgment of the Appellate Court, which affirmed the judgment of the habeas court granting the petitioner a new trial on thegroundthattheDivisionofPublicDefenderServices (public defender’s office) had erroneously determined that he was ineligible for the assistance ofcounsel. 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 ofpublic defender error in the habeas court but, rather, claimed that the trial courthadconductedaninadequate canvass and erroneously concluded that he knowingly, intelligently and voluntarilywaived his rightto counsel. We thus reverse the judgment of the Appellate Court and direct that courtto remandthe case to the habeas courtto address these claims. We decline to considerwhetherthe cause and prejudice necessary to excuse procedural default may be presumed in the context of the petitioner’s claims oftrial court errorbecause 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
Therecordrevealsthefollowingundisputedfactsand 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 ofrisk ofinjury to a child in violation of General Statutes (Rev. to 2003) § 53-21 (a) (2) inconnectionwith

an incident that occurred in 2003. At his arraignment in thejudicial district ofWindham in May, 2007, Assistant Public Defender Ernest Green, Jr., appeared on behalf ofthe petitioner forbond 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. Atthe nextpretrial hearing inJune, 2007, the petitioner appeared without counsel. The assistantstate’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 ofthe 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 ofthese hearings, the petitionerinformedthe courtthat the public defender’s office had deemed him ineligible forappointed counsel dueto his ownership ofproperty, 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 tryingto refinance his propertyto obtainthe funds. The petitioner’s case was repeatedlycontinuedto allowhim

more time to secure counsel. No representative from the public defender’s office ever appeared in court to address the denial of services.
Atahearingin October, 2008, thepetitionerindicated 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 ifsomeone could assist him inpreparing 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 aDecember, 2008 hearing, the trial court informed the petitioner that it was scheduling the petitioner’s

case for ajury trial due to the fact that nearlytwo 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 ofwhether he secured counsel at that time.
InApril, 2009, the petitioner appeared as a self-represented party to commencejury 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 beenunsuccessfulbecausehe couldnotaffordtheminimum payment that counsel demanded, he was facing foreclosure on his property, and he had twice been deemed ineligible forpublic defender services. He indicated that he hadjust 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 gettingcounsel 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 ifyou couldn’t afford private counsel, butyou sayyou’vetriedtwice, andyou’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 onproperty, you’re automaticallydisqualified 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’rewaivingyourrighttohave counselrepresentyou. ‘‘[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 tomattersrequiredforaproperwaiverofcounselunder Practice Book § 44-3, the court inquired about the petitioner’s circumstances. The petitioner informed the courtthat he was thirty-seven years old and had atenth 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 AssistantPublicDefenderGreen, andhopedtobecomefamiliar with these rules and procedures before trial. In response to the question ofwhether 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 exchangethenensuedaboutthepetitioner’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 thatjustice demands that at some point the state have the rightto tryits case. Atthe conclusion ofits 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 disappointedthat 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 intentionallyengagedin dilatoryconduct. See, e.g., UnitedStates

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 rightto 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 thejustification 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 ajury trial, the defendant was found guilty of both the sexual assault and risk of injury counts. The trial court rendered judgment in accordance with theverdictandimposedatotal effective sentence often 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, thepetitioner, as aself-representedparty, filed apetition for awrit ofhabeas 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 trialcourthad (1) inadequatelycanvassedthepetitioner 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 andprejudice applies to claims ofan inadequate waiver

canvass. The habeas court denied the motion withoutprejudice. 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 ofthe 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 courtoverruledtheobjectionwithoutprejudicetobeing renewed in the posttrial briefs. Thereafter, the petitioner testified that he had a minimal or negative bank accountbalance duringthisperiod, whichhe supported withbankaccount statements, andthathe wasworking

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 thejudicial district ofWindham, where the petitionerfiledhis applications, and Brian S. Carlow, the Deputy ChiefPublic Defender in the Office ofthe 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 inproperty 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 ownershipwouldnothavebeengivensignificantweightindisqualifying an income eligible applicant because he assumed thatrelativelyfewpeoplewouldhavebeenableto easily

access any equity due to the state of the economy at thattime. Inaddition, Carlowtestifiedthatthe eligibility decision ofthe public defender’s office is only arecommendation, 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.
Thehabeas courtthereaftergrantedthepetition, 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 thatwassubjecttoamortgageintheamountofapproximately $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 mettheincome eligibilityrequirementssetbythePublic 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 ofhis 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 errorwas notprocedurally 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 prejudicenecessaryto excuse default. Thehabeascourt 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 becausethe petitionerhad explainedhis 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 didnot 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 forthe public defender’s erroneous eligibilitydetermination, thepetitionerwouldnot have implicitlyorotherwise waivedhis rightto counsel, andthe trial courtwould 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 summaryjudgment 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 ofa claim that had not been raised in the petition, and (3) even ifproperly 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. SeeNewlandv. 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 thejudgment ofconviction, reasoning: ‘‘[B]ecause our resolution of the respondent’s claim ofprocedural default is based upon the petitioner’s claim ofaviolation ofhis right to counsel and whether cause and prejudice are presumed in the presence ofsuch aviolation, the procedural mechanismbywhichthepetitionerperhapsshouldhaveraised 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. CommissionerofCorrection, 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 ofpublic defendererror. We conclude, followingaclose examination of the record, that the petitioner did not claimpublic defendererror.5Accordingly, theAppellate Court improperly upheld the habeas court’s determinationthataclaim ofpublic defendererrorwas notprocedurally 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 beyondthepleadingsandtrialevidenceto decideclaims not raised.

. . . The purpose of the [petition] is to put the [respondent] on notice ofthe 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 substantialjustice betweenthe 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 defaultdefenseandtheparties’argumentsattheevidentiary 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 thatthese errors occurredafterthepetitionerwastwice 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, andthepetitionerneverattemptedtoamendhispetition to include such allegations. See Practice Book § 23-32 (‘‘The [habeas] petitioner may amend the petition at any time prior to the filing ofthe return. Following the return, any pleading may be amended with leave ofthe 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 theAppellate Court, andnotbecause he failedto 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, thepetitionerspecificallycontended, 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

wasunreasonable inthe absence ofaclearandunequivocal 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 ofhis application fortrial counsel. When counselforthe respondent objectedonrelevancy grounds to the petitioner’s testimony regarding his financial position at the time he first applied for the assistance ofapublic 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

wasforcedto representhimself[at] trial, itwasbecause he couldn’t get another attorney.’’ (Emphasis added.)
When the petitioner continued to testify regarding his financial status atthe time he filedhis original application, therespondent’scounselagainobjected, 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 tofind counsel

. . . don’t go to whether the public defender determined he was eligible or ineligible. We’rejust going into his attempts tofind counsel, which again [go] to the issue ofvoluntariness 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

. . . theissueofvoluntariness andnot towhetherthepublic defenderis

—eligible or ineligible.’’ (Emphasis added.) Therespondent’scounselthencitedcaselawdescribing 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 ofits inadequate canvass, that he knowingly, intelligently and voluntarily waived his right to counsel.
The habeas court subsequently observedthat the evidence introducedbythepetitioner, whichthe courthad allowed overthe objection ofthe respondent’s counsel,

was primarily about what the public defender’s office did or did not do, whereas the habeas petition was aboutwhatthetrial court did or didnot do. Inresponse, 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 forpublic defender assistance and the effect ofthe ineligibility determination onhis rightto 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 ofthat, 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 indigencyis something that thecourthas 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 animpropereligibilitydetermination. Therespondent’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 oferror on the part ofthe 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 infurtherance ofwhichthe petitionerhadbeen 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 ofpublic defender error, the respondent objected and separately moved to strike all materials attached to or referenced in the petitioner’s posttrial briefintended to support an argument that he was indigent atthe 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 closedwhenthe parties restedtheir cases atthe habeas hearing and that the petitioner had not sought permissiontoreopentherecordfortheadmissionofadditional 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 petitionerhadraisednovalidclaimrelatingtotheindigency 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 toconsider 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 thetrialcourthadconductedaninadequate canvassand made animproperwaiverdetermination. Thepetitioner 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 provetrial court errorinApril, 2009, whenthe waiver

canvass occurred. The petitioner did not offer copies ofhisapplicationsforapublicdefender, testimonyfrom the person in the public defender’s office who denied either ofhis applications, or his own testimony regarding the interview conducted in connection with review ofhis 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 ofthe petitionerbythe 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 inJune, 2007, and December, 2008, through April, 2009, toprovethathelackedthefundstohireprivate counsel, informationregardingtheproperty (purchaseprice, fair marketvalue, refinancing, etc.) and the posting ofbond

was elicited through questions by the respondent’s counsel and the habeas court.
The evidence elicitedregardingthe procedures ofthe 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 anyperiod. Canning offered only generalized testimony about public defender decision makingand procedures, and nothing specific to 2007 or 2008. Carlow’stestimonyaddressed2007through2009procedures 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 elicitedbycounselregardingthepetitioner’strialtestimony

as to his limited income, his lack offinancial 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, intelligentandvoluntary, andthathehadbeen compelled to represent himself in spite of his lack of adequate resources. Counsel thus suggested that, ifthe trial court had conducted a proper canvass, it would have recognized the petitioner’s dire situation and appointed apublic defenderto represent him, orwould 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 argumentsduringthehabeasproceedingsandredefined thepetitioner’s claims as allegingpublic defendererror, and the Appellate Court improperly upheld the habeas court’s conclusions that the petitioner’s alleged claim ofpublic defendererrorwas notprocedurally 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 thejudgment ofthe Appellate Court and direct that court to remand the case to the habeas court for it to consider whether the petitioner’s claims oftrial court error, which he alleged in his original petition, are procedurally defaulted and, ifthey 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

Thejudgment ofthe Appellate Court is reversed and the case is remanded to that court with direction to remandthecasetothehabeascourtforfurtherproceedings 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 ofthe 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 testifiedthat applicants who are deemed ineligible bythe public defender’s office are ‘‘almost universally’’ told of their right to appeal from that decision to the court.

4 A more accurate representation ofthe 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 Wenotethat, althoughthehabeascourt’s decisionrestedonthepropriety ofthe 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
anyprecedentfromotherjurisdictionsthatsupportssuchatheory. 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 Courtobservedthat ‘‘[a] defendanthas knowinglyandintelligently 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 totheassignmentofcounselwhenso entitled; (2) [p]ossessestheintelligence 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 dangersanddisadvantagesofself-representation.’’ (Internalquotationmarks 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 ofrepresentation by counsel at trial, we do not endorse JusticeMcDonald’s suggestionthatthe courtexerciseits supervisorypowers

over the administration ofjustice 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 ofindigency. 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.