NEWLAND v. COMMISSIONER OF CORRECTION-DISSENT
Connecticut Supreme Court
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This case reveals fundamental flaws in our procedures for protecting an indigent criminal defendant‘s constitutional right to appointed counsel. In light of those glaring shortcomings, I would exercise our supervisory authority to adopt a prophylactic procedural rule to ensure that such a fundamental miscarriage of justice does not recur.
I need not decide whether to apply this rule retrospectively to the present case, however, because I disagree with the majority‘s conclusion that public defender error was not a proper basis on which to grant habeas relief. Even under the majority‘s cramped view of the record, this case raises the essential question of whether it is preferable for our habeas courts to address a meritorious claim supported by the petitioner‘s evidence and filings, even if not squarely raised in the petition, as long as there is no prejudice to the respondent, the Commissioner of Correction, or whether those courts should ignore that basis for relief and leave that matter to a subsequent habeas petition alleging ineffective assistance of habeas counsel. Given the fundamental interests implicated and the substantial delay attendant to successive habeas proceedings, I believe that the former course of action is more jurisprudentially sound. The majority avoids these problems in the present case only because it remands the case to the
With respect to the merits of the claim of public defender error, I would conclude that the Appellate Court properly determined: (1) that the petitioner‘s claim was not barred by procedural default because, contrary to the respondent‘s position, the prejudice necessary to overcome such a default is presumed for claims of denial of counsel; and (2) that the evidence supported the habeas court‘s conclusion that the petitioner was entitled to prevail on this claim. Newland v. Commissioner of Correction, 151 Conn. App. 134, 148, 152-53, 94 A.3d 676 (2014).
I
I begin with the multiple procedural failures revealed by the record in this case. First, the petitioner was never informed that he had a statutory right to appeal the public defender‘s decisions deeming him ineligible for appointed counsel. See
Second, the trial court, Robaina, J., effectively informed the petitioner that he did not have a right to appeal the public defender‘s eligibility determination. The petitioner was told: “You either qualify for the public defender services or you don‘t, and that‘s a determination made by them independent of the court.” (Emphasis added.) There is currently no rule of practice or statute that requires the trial court to inform a defendant on the record of his statutory right to appeal such a determination to the trial court before which his case is pending. Nor is there any provision that prescribes either the procedure for initiating such an appeal or the obligations of the court in conducting such a proceeding. Nonetheless, the trial court‘s statement was at the very least misleading, and at best in direct conflict with the statute conferring a right of judicial review. See
Third, no one from the public defender‘s office ever offered, or was required by the trial court, to appear before the court to explain the basis of the denials, despite the numerous proceedings at which the peti-
Given the fundamental interests at stake, however, I would exercise our supervisory powers over the administration of justice to adopt a prophylactic procedural rule: trial judges, upon being advised that a criminal defendant desires counsel and cannot afford a private attorney, but has been deemed ineligible for public defender services, would be precluded from trying that defendant as an unrepresented party unless a hearing is held at which: (1) a public defender appears before the trial court to explain why the defendant does not qualify for services under the applicable eligibility guidelines; (2) the defendant is apprised on the record of his statutory right under
In my view, this procedure is consistent with the
II
I need not decide whether this rule should be applied to the present case because, unlike the majority, I would conclude that the Appellate Court properly determined that the petitioner was entitled to prevail on a claim of public defender error. Nonetheless, the flaws revealed in this case that persuade me that we should adopt such a rule are relevant to my resolution of this issue. I begin this part of this dissenting opinion by explaining why the habeas court properly could grant relief on a claim of public defender error. I then address why the habeas court properly rejected the respondent‘s affirmative defense of procedural default. Finally, I explain why the evidence was sufficient to support the claim of public defender error.
A
Public Defender Error As a Proper Basis for Relief
To place the record in this case in its proper context, we must be mindful of the underlying principles and parameters of our statutory scheme governing appointed counsel. “It is the duty of the state to provide adequate means to assure that no indigent accused lacks full opportunity for his defense . . . . The right to legal and financial assistance at state expense is, however, not unlimited. Defendants seeking such assistance must satisfy the court as to their indigency . . . . This has largely been accomplished through [public defender services] . . . which has promulgated guidelines that are instructive as to the threshold indigency determination. . . .
“[Section] 51-297 (a) requires the public defender‘s office to investigate the financial status of an individual requesting representation on the basis of indigency, whereby the individual must, under oath or affirmation, set forth his liabilities, assets, income and sources thereof. . . . Upon a determination by the public defender that an individual is not eligible for its services, the individual may appeal the decision to the court before which his case is pending.” (Internal quotation marks omitted.) State v. Henderson, supra, 307 Conn. 540-41. ”
Under the chapter of our General Statutes governing public defender services, ” ‘indigent defendant’ means . . . a person who is formally charged with the commission of a crime punishable by imprisonment and who does not have the financial ability at the time of his request for representation to secure competent legal representation and to provide other necessary expenses of legal representation . . . .” (Emphasis added.)
In considering whether a claim of public defender error was properly before the habeas court in the present case, I am mindful that “the habeas court has considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violations . . . [but] 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 on other grounds by State v. Elson, 311 Conn. 726, 747, 754, 91 A.3d 862 (2014).
It is conceded that the petition specifically alleged trial court error and not public defender error. Nonetheless, in a claim of trial court error for accepting an “implied waiver” based on an incorrect determination of the petitioner‘s eligibility for public defender services, the latter error would be subsumed under the former. Indeed, the entirety of the record—filings, evidence, and argument at the evidentiary hearing—clearly reflects a broader theory that implicates public
In considering whether a claim is properly before the habeas court, we are obligated to consider whether it has been raised in such a way as to put the respondent on notice so that he can fairly and adequately respond to that claim. That requirement was met in the present case. The respondent had notice that this issue was implicated in the case and he has not established that the habeas court‘s shift in focus from trial error to public defender error prejudiced him.4 The respondent‘s return and motion for summary judgment argued that the petition must fail because the petitioner had not appealed from the public defender‘s decision or disputed the basis of that decision. As previously indicated, the petitioner‘s opposition to the motion unambiguously asserted that there had been public defender error. From the very commencement of the evidentiary hearing, the respondent‘s objections reflected his view that the petitioner‘s evidence related to the propriety of the public defender‘s decision, not the trial court‘s decision.5
The only prejudice that the respondent claims arises
Accordingly, I am not only persuaded that the respondent was not unfairly surprised by the habeas court‘s consideration of public defender error, but that a contrary conclusion would not “do substantial justice between the parties.” (Internal quotation marks omitted.) Lebron v. Commissioner of Correction, supra, 274 Conn. 520. Therefore, I would conclude that the habeas court properly considered whether the petitioner could prevail on this claim.
B
Whether a Claim of Public Defender Error Is Barred by Procedural Default
The respondent contends that the petitioner‘s claim is barred by procedural default because the petitioner did not establish both cause and prejudice to overcome the default. More specifically, the respondent contends that the Appellate Court improperly concluded that the presumption of prejudice that applies to a court‘s substantive determination that there has been a denial of counsel also applies to the procedural default inquiry that precedes a determination on the merits. I disagree.
I begin with the general principles governing procedural default. “Although this court is not compelled to conform state postconviction procedures to federal procedures“; Crawford v. Commissioner of Correction, 294 Conn. 165, 182, 982 A.2d 620 (2009); “our own jurisprudence concerning habeas corpus procedural defaults has developed in tandem with federal habeas
In many cases, the prejudice inquiry for procedural default can substantially overlap or merge with the showing of harm required to prevail on a claim of constitutional error. See, e.g., Johnson v. Commissioner of Correction, supra, 285 Conn. 570–71 (concluding that similarity of prejudice necessary to prevail on claim of ineffective assistance of counsel to threshold showing of cause and prejudice to overcome procedural default makes it unnecessary to engage in latter inquiry). A claim of denial of counsel, however, is different.
It is a bedrock principle that “the right to counsel is the foundation for our adversary system. Defense counsel tests the prosecution‘s case to ensure that the proceedings serve the function of adjudicating guilt or innocence, while protecting the rights of the person charged. See, e.g., Powell v. Alabama, 287 U.S. 45, 68–69, 53 S. Ct. 55, 77 L. Ed. 158 (1932) (‘[The defendant] requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence‘).” Martinez v. Ryan, 566 U.S. 1, 12, 132 S. Ct. 1309, 1317, 182 L. Ed. 2d 272 (2012).
Accordingly, “[a]ctual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.” Strickland v. Washington, 466 U.S. 668, 692, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see also United States v. Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984) (prejudice presumed when [1] counsel completely denied, [2] when counsel denied at critical stage of trial, and [3] when counsel “fails to subject the prosecution‘s case to meaningful
Although the original rationale for this presumption was that prejudice “in these circumstances is so likely that case-by-case inquiry into prejudice is not worth the cost“; Strickland v. Washington, supra, 466 U.S. 692; a more constitutionally significant rationale later emerged as the United States Supreme Court‘s structural error jurisprudence developed. The Supreme Court explained that trial errors occur “during presentation of the case to the jury and their effect may be quantitatively assessed in the context of other evidence presented in order to determine whether [they were] harmless beyond a reasonable doubt. . . . These include most constitutional errors. . . . [S]tructural defects [however] . . . defy analysis by harmless-error standards because they affec[t] the framework within which the trial proceeds, and are not simply an error in the trial process itself. . . . Such errors include the denial of counsel . . . the denial of the right of self-representation . . . the denial of the right to public trial . . . and the denial of the right to trial by jury by the giving of a defective reasonable-doubt instruction . . . .” (Citations omitted; footnote omitted; internal quotation marks omitted.) United States v. Gonzalez-Lopez, 548 U.S. 140, 148-49, 126 S. Ct. 2557, 165 L. Ed. 2d 409 (2006).
Particularly telling for our purposes is the distinction that the United States Supreme Court has drawn between assessing prejudice when a defendant has been deprived of the counsel of his choice and when a defendant has received ineffective assistance of counsel: “[I]f and when counsel‘s ineffectiveness ‘pervades’ a trial, it does so (to the extent we can detect it) through identifiable mistakes. We can assess how those mistakes affected the outcome. To determine the effect of wrongful denial of choice of counsel, however, we would not be looking for mistakes committed by the actual counsel, but for differences in the defense that would have been made by the rejected counsel—in matters ranging from questions asked on voir dire and cross-examination to such intangibles as argument style and relationship with the prosecutors. We would have to speculate upon what matters the rejected counsel would have handled differently—or indeed, would have handled the same but with the benefit of a more jury-pleasing courtroom style or a [long-standing] relationship of trust with the prosecutors. And then we would have to speculate upon what effect those different choices or different intangibles might have had. The difficulties of conducting the two assessments of prejudice are not remotely comparable.” Id., 150–51. The
Thus, when a denial of counsel claim has been procedurally defaulted, these two lines of jurisprudence are ostensibly in tension. On the one hand, such a denial is legally presumed to result in prejudice. On the other hand, the general rule is that a petitioner is required to demonstrate prejudice to overcome a bar of procedural default. The question therefore is whether prejudice similarly should be presumed in the procedural default inquiry.
The courts that have addressed this question have universally resolved that question in the affirmative.8 See Robinson v. Ignacio, 360 F.3d 1044, 1054-55 (9th Cir. 2004); Shayesteh v. South Salt Lake, 217 F.3d 1281, 1284 (10th Cir. 2000), cert. denied, 531 U.S. 1171, 121 S. Ct. 1139, 148 L. Ed. 2d 1003 (2001); Guzman v. United States, Docket No. C.A. 98-12086 (MLW), 2004 WL 3710110, *8-9 (D. Mass. June 4, 2004); Coleman v. Ignacio, 164 F.R.D. 679, 684 (D. Nev. 1996). Our Appellate Court has reached a similar conclusion. See Dennis v. Commissioner of Correction, 134 Conn. App. 520, 536-37, 39 A.3d 799 (2012).
I recognize that, in connection with structural errors other than denial of counsel, some courts have determined that prejudice should not be presumed for purposes of procedural default. See Jones v. Bell, 801 F.3d 556, 563 (6th Cir. 2015) (denial of self-representation claim not entitled to presumption), cert. denied sub nom. Jones v. Smith, 577 U.S. 1109, 136 S. Ct. 878, 193 L. Ed. 2d 735 (2016); Ambrose v. Booker, 684 F.3d 638, 649 (6th Cir. 2012) (denial of claim that jury was not fair cross-section not entitled to presumption), cert. denied, 568 U.S. 1163, 133 S. Ct. 993, 184 L. Ed. 2d 771 (2013); Purvis v. Crosby, 451 F.3d 734, 743 (11th Cir. 2006) (denial of public trial claim not entitled to presumption), cert. denied sub nom. Purvis v. McDonough, 549 U.S. 1035, 127 S. Ct. 587, 166 L. Ed. 2d 436 (2006); Commonwealth v. LaChance, 469 Mass. 854, 857, 17 N.E.3d 1101 (2014) (denial of public trial claim not entitled to presumption), cert. denied, 577 U.S. 822, 136 S. Ct. 317, 193 L. Ed. 2d 227 (2015); see also Perkins v. Hall, 288 Ga. 810, 829, 708 S.E.2d 335 (2011) (“[t]he general rule is that presumptions of harm that would have applied on direct appeal do not apply on habeas corpus to procedurally defaulted claims“). But see Owens v. United States, 483 F.3d 48, 64 (1st Cir. 2007) (“a defendant who is seeking to excuse a procedurally defaulted claim of structural error need not establish actual prejudice“). The principal authority cited in those cases is Davis v. United States, 411 U.S. 233, 93 S. Ct. 1577, 36 L. Ed. 2d 216 (1973). See, e.g., Ambrose v. Booker, supra, 649. In Davis, a federal prisoner collaterally attacked his conviction on grounds of unconstitu-
I do not find this authority persuasive as applied to the present case for the following reasons. First, most of the courts that have refused to apply a presumption of prejudice to certain procedurally defaulted structural errors have indicated that a denial of counsel would be one of the limited circumstances in which such a presumption would still apply. See Ambrose v. Booker, supra, 684 F.3d 652; Purvis v. Crosby, supra, 451 F.3d 741; Upton v. Jones, 280 Ga. 895, 897, 635 S.E.2d 112 (2006); Commonwealth v. LaChance, supra, 469 Mass. 860. Indeed, the United States Supreme Court has recognized that “[i]t is only for certain structural errors undermining the fairness of a criminal proceeding as a whole that even preserved error requires reversal without regard to the mistake‘s effect on the proceeding. See Arizona v. Fulminante, 499 U.S. 279, [309–10, 111 S. Ct. 1246, 113 L. Ed. 2d 302] (1991) (giving examples).” (Emphasis added.) United States v. Dominguez Benitez, 542 U.S. 74, 81, 124 S. Ct. 2333, 159 L. Ed. 2d 157 (2004).
Second, Davis and Francis predate development of the United States Supreme Court‘s structural error jurisprudence, wherein the court emphasized the difficulty, if not impossibility, in certain cases of quantifying the prejudice arising from the constitutional violation. Indeed, as some courts rightly have pointed out, an assessment of prejudice becomes no more possible in one context than in the other. See, e.g., Owens v. United States, supra, 483 F.3d 64-65. Although some errors are deemed structural for reasons other than that their impact on the reliability of the verdict cannot be ascertained; see J. Blume & S. Garvey, “Harmless Error in Federal Habeas Corpus after Brecht v. Abrahamson,” 35 Wm. & Mary L. Rev. 163, 185–87 (1993); it is clear that denial of counsel does not fall into this class of errors. See United States v. Gonzalez-Lopez, supra, 548 U.S. 150-51.
In the alternative, however, the respondent argues that no presumption of prejudice could apply to this case in any event because there has been no showing of a denial of counsel at the point of procedural default,
This position ignores reality, especially in the present case. A defendant generally has twenty days to appeal a judgment of conviction. Practice Book
C
Whether the Petitioner Established Public Defender Error
The respondent also claims that the habeas court improperly concluded that the petitioner met his burden
Generally, “the trial court‘s assessment of the defendant‘s offer of proof pertaining to whether he was indigent and was, therefore, eligible for state funded expert assistance, is a factual determination subject to a clearly erroneous standard of review. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) State v. Henderson, supra, 307 Conn. 540.
In the present case, however, the respondent‘s arguments regarding the necessity of proving trial court error and of producing the public defender applications ignore the significance of a critical, unchallenged factual finding, as well as other facts plainly reflected in the record. The habeas court found that the petitioner had not been informed of his statutory right to appeal the public defender‘s decision. Judge Robaina advised the petitioner that the indigence determination is made by the public defender‘s office “independent of the court.” Nothing that the trial court, Hon. Russell F. Potter, judge trial referee, said or did in conducting the waiver canvass would have disabused the petitioner of this notion. Judge Potter did not request that the public defender appear in court to explain the basis for the denials before making the implied waiver finding. The petitioner had no ground to dispute the factual basis for the denials, as he understood it. He believed that his mere ownership of property had automatically rendered him ineligible for public defender services.
We apply the deferential, clearly erroneous standard of review to a trial court‘s finding of indigence when a defendant has been given a reasonable opportunity to challenge the public defender‘s decision. For the reasons previously stated, that did not happen in this case. In the absence of a formal challenge to the public defender‘s decision, Judge Potter simply assumed the correctness of the determination of ineligibility.10
I recognize that there is Appellate Court case law holding that, even when there is a question whether
For similar reasons, the petitioner is not precluded from obtaining relief due to his failure to obtain copies of his applications for public defender services to vindicate his right to appeal the eligibility determination. By the time the petitioner obtained counsel who could inform him of his right to challenge that determination—at the commencement of his habeas proceedings—the public defender‘s office had destroyed his applications.11 Although the respondent suggests the possibility that, in the absence of the applications, we cannot be sure that the petitioner was not deemed ineligible because he failed to provide complete information to the public defender regarding his assets and liabilities; see, e.g., State v. Flemming, supra, 116 Conn. App. 475; State v. Kennedy, 315 Wis. 2d 507, 521-22, 762 N.W.2d 412 (2008); the record in the present case indi-
Having concluded that our review is focused on the propriety of the habeas court‘s conclusion that the public defender‘s eligibility determination was erroneous, I now turn to that question. Because there is no precedent for review of a habeas court‘s determination of public defender error, I first must determine the appropriate standard of review. I conclude that the habeas court‘s finding of indigence should be reviewed under the clearly erroneous standard, the same standard used to review a trial court‘s finding of indigence following an appeal of the public defender‘s decision of eligibility for services. State v. Henderson, supra, 307 Conn. 540; see Sanchez v. Commissioner of Correction, 314 Conn. 585, 604, 103 A.3d 954 (2014) (“habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous” [internal quotation marks omitted]). The habeas court, however, must consider all of the factors that would be relevant to a determination of eligibility for public defender services. In assessing all of those factors, it is important to underscore that “[t]he habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Internal quotation marks omitted.) Id.
Under this standard of review, I conclude that the habeas court‘s finding that the petitioner was eligible for defender services from the time his second application was denied in December, 2008, through the waiver canvass in April, 2009, cannot be deemed clearly erroneous.12 The habeas court properly could credit the petitioner‘s testimony that all of the information provided to that court regarding his income, assets, and liabilities also had been provided to the public defender when he submitted his applications for services. The court credited the petitioner‘s testimony and documentary evidence regarding his low wage employment and lack of funds in any bank account. These factors made the petitioner presumptively income eligible for public defender services in light of the serious charges he faced.
The majority argues, however, that the petitioner neither established his income nor the public defender income guidelines for 2007 and 2008—proof that he did not intend to advance a claim of public defender error. The majority overlooks, however, evidence from which the habeas court could have drawn reasonable infer-
Having properly concluded that the petitioner was presumptively income eligible, the habeas court also credited evidence that supported its conclusion that the petitioner did not have other assets that properly would have rendered him ineligible. The habeas court credited evidence establishing that the petitioner‘s sole asset was residential property in which he had approximately $50,000 in equity based on a valuation performed by a bank in January, 2007.13 The habeas court credited testimony from Brian Carlow, the Deputy Chief Public Defender for the Office of the Chief Public Defender, that under public defender policies and guidelines, equity in an asset must be readily accessible to disqualify an otherwise income eligible applicant. It was within the habeas court‘s province to credit Carlow‘s testimony over Canning‘s testimony that it is the policy of the public defender‘s office that equity in real estate: is generally not viewed as accessible to the same extent as cash or other liquid assets; was not viewed as a significant eligibility factor in the relevant period due to the economic downturn; and, would not be a factor at all if the real property was in foreclosure, barring unusual circumstances.14 Accordingly, the habeas court‘s conclusion that there was public defender error was not clearly erroneous.
I therefore agree with the Appellate Court that the habeas court properly concluded that, “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.” Newland v. Commissioner of Correction, supra, 151 Conn. App. 145. Accordingly,
I respectfully dissent.
ANDREW J. MCDONALD
ASSOCIATE JUSTICE