State v. WoodsState v. Woods
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Cameron R. Dorman, assigned counsel, for the appellant (defendant).
Jonathan M. Sousa, special deputy assistant state‘s attorney, with whom, on the brief, were David S. Shepack, state‘s attorney, and David R. Shannon, senior assistant state‘s attorney, for the appellee (state).
GRUENDEL, J. The defendant, Alton Woods, appeals from the judgment of the trial court finding him in violation of probation pursuant to
The following facts and procedural history are relevant to our resolution of this appeal. On April 25, 2012, the defendant was found guilty of one count of possession of narcotics in violation of
On August 8, 2013, an arrest warrant was issued for the defendant after he allegedly failed to report to the Office of Adult Probation on three separate occasions. The defendant‘s probation officer alleged in the application for the arrest warrant that he had visited the defendant‘s reported residence and had spoken with the defendant‘s mother, who stated that the defendant did not reside at that address. The defendant subsequently was arrested and a violation of probation hearing was scheduled.
On August 22, 2013, Attorney John Cizik, from the Public Defender‘s Office, was appointed as counsel for the defendant. At the probation hearing, Cizik noted that he had “advised” the defendant and then entered a denial on his behalf. The trial court also granted the defendant‘s request to continue the case to September
Over the next four months, the case was continued four more times. On October 29, 2013, the court noted that the state had made a plea offer and that it would allow the defendant a period of time to consider whether to accept or reject it. On December 17, 2013, Cizik informed the court that the defendant intended to reject the plea offer and request a hearing. The court accepted the rejection on the record without noting the potential range of punishments the defendant faced if he was found to be in violation of probation.
On January 10, 2014, Cizik filed a motion to withdraw his appearance in this case, citing an “irretrievable breakdown of the attorney-client relationship.” Cizik stated that the defendant had refused on multiple occasions to meet with him or his investigator and therefore he “has been unable to adequately discuss, prepare, and investigate this case . . . .” Within the motion, Cizik noted that the defendant faced “a maximum sentence of nine years if found in violation of his probation.” He also stated that he would provide the defendant with notice of the motion to withdraw by mail and would speak to him about it in person at the violation of probation hearing. Cizik later withdrew this motion and maintained his representation of the defendant after speaking to him “at some length.”
The violation of probation hearing was conducted on January 24, 2014. At the hearing, Cizik notified the court that the defendant “indicated to me this morning that it is his desire to represent himself in this violation of probation proceeding.” The court then canvassed the defendant on his decision to waive his right to counsel.1 The court asked the defendant if he was under the influence of alcohol, drugs or medications that might impair his ability to make a decision. He also asked whether the defendant understood the nature of the violation of probation charge, to which the defendant replied “not really, I really don‘t.”2 The defendant then explained that this was his first violation of probation hearing. The court then stated that there are “dangers and disadvantages of not having a lawyer . . . .” The defendant responded by expressing his desire to call a witness that his lawyer did not want to call to testify. After the court explained that he would need a lawyer to subpoena a witness, the defendant replied “[w]ell, I‘m going to let him go ahead. . . . He can represent me.”
The court then proceeded to the evidentiary phase of the violation of probation hearing.3 The state began its case by calling the defendant‘s probation officer. After the state‘s direct examination, Cizik began cross-examination of the officer but was interrupted when the defendant reasserted his right to self-representation. The court, without conducting any further canvass of the defendant, stated “Okay. . . . [W]ith standby counsel you may proceed with the cross-examination.”
The court then proceeded to the dispositional phase of the hearing. At that point, the defendant requested that Cizik be reappointed as counsel for the purpose of presenting argument. Both the state and Cizik presented argument regarding whether the defendant‘s probation should be modified or revoked, and whether to impose the suspended portion of his original sentence. At the conclusion of the hearing, the court ordered revocation of the defendant‘s probation and sentenced him to seven and one-half years of incarceration. The defendant appeals from this judgment.
On appeal, the defendant argues that the court abused its discretion when it permitted him to waive his right to counsel without establishing that his waiver was made knowingly and intelligently.4 Specifically, the defendant argues that the court failed to establish that he understood the range of permissible punishments to which he was exposed. The state argues that, although the court did not expressly advise the defendant on his exposure, the record establishes that the defendant understood the range of permissible punishments faced and thus knowingly waived his right to counsel.
At the outset, we identify the applicable standard of review. “We review [a] trial court‘s determination with respect to whether the defendant knowingly and voluntarily elected to proceed pro se for abuse of discretion.” State v. D‘Antonio, 274 Conn. 658, 709, 877 A.2d 696 (2005). “Whether there has been an intelligent waiver of the right to counsel depends upon the particular facts and circumstances surrounding each case. . . . The state bears the burden of proving that the right to counsel was knowingly and intelligently waived.” (Citation omitted.) State v. Frye, 224 Conn. 253, 260, 617 A.2d 1382 (1992).
“We begin with several well settled principles regarding the constitutional right of an accused to represent himself. The right to counsel and the right to self-representation present mutually exclusive alternatives.5 A criminal defendant has a constitutionally protected interest in each, but since the two rights cannot be exercised simultaneously, a defendant must choose between them. When the right to have competent counsel ceases as the result of a sufficient waiver, the right of self-representation begins. . . . Put another way, a defendant properly exercises his right to self-representation by knowingly and intelligently waiving his right to representation by counsel. . . . When an accused
Although a valid waiver of counsel must be made with an appreciation for the potential range of punishment faced, the defendant “does not possess a constitutional right to a specifically formulated canvass [with respect to this inquiry]. His constitutional right is not violated as long as the court‘s canvass, whatever its form, is sufficient to establish that the defendant‘s waiver was voluntary and knowing. . . . In other words, the court may accept a waiver of the right to counsel without specifically questioning a defendant on each of the factors listed in Practice Book § [44-3] if the record is sufficient to establish that the waiver is voluntary and knowing.” (Emphasis added; internal quotation marks omitted.) State v. Diaz, 274 Conn. 818, 831, 878 A.2d 1078 (2005).
Our Supreme Court previously has held that a waiver of counsel is not made knowingly and intelligently when the defendant is unaware of “the range of permissible punishments . . . .” Id.; see id., 833–34 (remanding for new trial when defendant waived right to counsel without being advised of range of prison time he would face upon conviction); see also State v. T.R.D., supra, 286 Conn. 206 (remanding for new trial after court failed to conduct adequate canvass to ensure defendant was advised of period of incarceration he faced if convicted). In addition, our appellate courts previously have confronted claims of invalid waiver in the context of a violation of probation hearing. See State v. Connor, 292 Conn. 483, 973 A.2d 627 (2009); State v. Smith, 18 Conn. App. 368, 558 A.2d 257 (1989). As both Connor and Smith also dealt with the issue of the defendant‘s knowledge of the range of permissible punishments, it is instructive to briefly review both cases.
In Connor, our Supreme Court concluded that the defendant‘s waiver of counsel at a violation of probation
At the trial on the kidnapping, robbery and larceny charges, Connor properly waived his right to counsel and represented himself. This waiver was accepted after the court conducted a canvass as to his level of education and his understanding of the charges against him, and the years of incarceration he could face if convicted of them. Id., 502. At the conclusion of trial, the jury found Connor guilty on several of the charges and imposed a total effective term of thirteen years of imprisonment. Id., 505. The day after the sentencing hearing, the court held a hearing on the violation of probation charge, where the court asked Connor if he wished to continue his self-representation. Connor stated that he did and the request was granted without any additional canvass. Id., 504. Following the probation revocation hearing, the court found that the conditions of probation had been violated and sentenced Connor to three years of imprisonment. Id., 504–505. On appeal, our Supreme Court held that, “although we acknowledge that a court may be entitled to more leeway with respect to the necessary canvass when, as in the present case, the court just has completed a separate trial involving the same self-represented defendant, minimum constitutional requirements must be satisfied before a defendant will be deemed to have waived his right to counsel.” Id., 532. On this basis, the court held that the record contained “no indication that [Connor] was aware of the fact that he faced a possible prison term of up to three years if the court found that he had violated one or more conditions of his probation. In the absence of such a record, [Connor‘s] waiver is constitutionally inadequate.” Id.
In Smith, this court reversed the trial court‘s finding that the defendant, Lawrence Smith, had violated his probation after determining that he had waived his right to counsel without an understanding of the nature of the offense and proceedings, as well as the range of permissible punishments that could be imposed upon him if his probation were revoked. State v. Smith, supra,
We begin our analysis by reviewing the court‘s canvass under the requirements of the Practice Book. Section 44-3 provides that “a waiver will be accepted only after the judicial authority makes a thorough inquiry and is satisfied that the defendant: (1) Has been clearly advised of the right to the assistance of counsel, including the right to the assignment of counsel when so entitled; (2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent oneself; (3) Comprehends 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) Has been made aware of the dangers and disadvantages of self-representation.” Under this standard, it is clear that the court‘s canvass, on its own, was not a thorough inquiry sufficient to inform the defendant of his rights prior to waiver. The court never advised the defendant that, if found in violation of probation, he could be sentenced to imprisonment for the remainder of his original sentence. The court also never asked any questions which would have created a record that the defendant understood the nature of the charges or proceedings. In fact, the defendant expressly stated that he did not appreciate the nature of the proceedings. The defendant stated that he had never previously been charged with violation of probation and explained that he did not properly understand the two phases of the violation of probation hearing. The court also never explained the range of permissible punishments that he faced for violation of
Our inquiry, however, does not end with the Practice Book. A defendant‘s “constitutional right is not violated as long as the court‘s canvass, whatever its form, is sufficient to establish that the defendant‘s waiver was voluntary and knowing. . . . In other words, the court may accept a waiver of the right to counsel without specifically questioning a defendant on each of the factors listed in Practice Book § [44-3] if the record is sufficient to establish that the waiver is voluntary and knowing.” (Internal quotation marks omitted.) State v. Diaz, supra, 274 Conn. 831. The state argues that the court‘s canvass was sufficient because the defendant obtained knowledge of the range of punishments from three sources prior to waiving his right to counsel. “The state bears the burden of establishing waiver. North Carolina v. Butler, 441 U.S. 369, 372–73, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979) . . . .” (Citation omitted.) State v. Wilson, 199 Conn. 417, 443, 513 A.2d 620 (1986). We now consider the merits of the state‘s position.
First, the state argues that the defendant obtained knowledge of the range of permissible punishments from statements made by the court prior to the defendant‘s waiver of counsel. At the hearing, the court stated the following: “[T]he court‘s first going to take judicial notice of some facts, which . . . need not be testified to because they‘re all a matter of record that I can take judicial notice of . . . . [On] April 25, 2012, [the court] sentenced [the defendant] on the charges of assault third, possession of narcotics with failure to appear to an effective total sentence of ten years, execution suspended after one year, with three years of probation.” The state argues that the court‘s judicial notice of the original sentence adequately informed the defendant of his exposure. We disagree.
The court‘s judicial notice only established the length of the defendant‘s original sentence. The court did not state that the remainder of this sentence could be imposed upon a finding that the defendant had violated his probation. Thus, the court‘s judicial notice does not establish that the defendant had knowledge of the permissible range of punishments to which he was exposed if he was found in violation of probation. See State v. Smith, supra, 18 Conn. App. 376 (rejecting state‘s argument that testimony establishing original sentence placed defendant on notice of range of permissible punishments if he was found in violation of probation). We further note that the range of punishments
Next, the state argues that the conditions of probation form, reviewed and signed by the defendant, established his understanding of his potential exposure. The form states in relevant part: “If you violate any of the conditions of your probation the court may issue a warrant for your arrest, revoke your probation and require you to serve the sentence imposed or impose a shorter sentence.” The defendant signed and dated the form on July 1, 2013. The state argues that this evidence provides actual notice to the defendant of his exposure if he was found to have violated his probation. We disagree.
Although the probation form notified the defendant of the possible punishments when he signed it, it did not establish that he was aware of this information when he later chose to waive counsel. In this case, the violation of probation hearing was continued five different times and was not heard until January 24, 2014. Thus, more than five and one-half months had passed between the time he signed the probation form and the time he waived his right to counsel. Accordingly, the probation form itself does not establish that the defendant was aware of the possible penalties he faced at the time of the hearing. See United States v. Erskine, 355 F.3d 1161, 1171 (9th Cir. 2004) (waiver of counsel not intelligent when “record [did] not reveal that [defendant] understood the possible penalty he faced at the time of his . . . waiver [of counsel]” [emphasis added]); see also State v. Smith, supra, 18 Conn. App. 376 (notification of punishment made eleven days prior to waiver of counsel did not establish that defendant “sufficiently understood” range of permissible punishments). As we are required to make “every reasonable presumption against waiver of fundamental constitutional rights“; (internal quotation marks omitted) State v. Gore, 288 Conn. 770, 777, 955 A.2d 1 (2008); we cannot presume that the defendant understood the penalty for violating probation on the basis of a form he had reviewed and signed nearly six months prior to waiving counsel.
Finally, the state argues that Cizik‘s motion to withdraw, which stated that the defendant “face[d] a maximum sentence of nine years if found in violation of his probation,” supports a presumption that he counseled the defendant on the possible punishment if he was found to be in violation of probation. We disagree.
On January 10, 2014, Cizik filed a motion to withdraw
In conclusion, the record before us does not provide us with sufficient assurance that the defendant understood the range of permissible punishments he faced if he were found to be in violation of his probation. The United States Supreme Court defines a valid waiver of a constitutional right as the “intentional relinquishment or abandonment of a known right.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). Under this standard, we must “indulge every reasonable presumption against waiver of fundamental constitutional rights and . . . will not presume acquiescence in the loss of fundamental rights.” (Emphasis added; internal quotation marks omitted.) State v. Gore, supra, 288 Conn. 777. On the basis of the record before us, we cannot conclude that the defendant‘s waiver was made knowingly and intelligently.
The judgment is reversed and the case is remanded for a new violation of probation hearing.
In this opinion the other judges concurred.
Notes
“The Court: All right. Okay, Mr. Woods, I have to speak some words to you and you can sit—you can remain seated. You have the right of course to waive counsel and represent yourself, but I can only accept that waiver if you‘re advised that you do have the legal right to a lawyer. You know that, right?
“[The Defendant]: Oh, yeah.
“The Court: Yes. Okay. Good. And right now as I‘m speaking to you you‘re not under any influence of any alcohol, drugs or medication that would impair your ability to think and act, are you?
“[The Defendant]: No.
“The Court: Okay. Good. And did you understand the nature of the charges here, the [violation of probation] and what it‘s all about?
“[The Defendant]: Not really, Your Honor.
“The Court: You don‘t understand—
“[The Defendant]: Not really, I really don‘t.
“The Court: You don‘t understand the violation of probation? You‘ve had them before in your past.
“[The Defendant]: No. I‘ve never been on probation before in my life.
“The Court: So you don‘t understand what a violation of probation is? This might mean I‘m going to have to keep your lawyer in.
“[The Defendant]: I don‘t—no, I really don‘t.
“The Court: Well, I just read to you the two allegations that they‘re talking
“[The Defendant]: Yes, Your Honor, but the problem is that I can‘t prove—I can‘t prove that I didn‘t violate the probation hearing without calling in. The guy who talked to me at the conference—video conference, because I told him specifically that I didn‘t have anywhere to stay, so—
“The Court: Okay. This—no, don‘t—don‘t get lost here. I‘m just talking about do you understand the nature of the charges against you, it‘s violation of probation. You got it?
“[The Defendant]: Yeah. I have a violation of probation, but the dispute—
“The Court: That‘s all—that‘s all I‘m asking—okay. And you know the law is complicated, as I know you know, and are you aware of the dangers and disadvantages of not having a lawyer right with you because there‘s a lot of technical stuff that sometimes comes out here. Are you comfortable with that?
“[The Defendant]: This is what I‘m saying, Your Honor. Mr. Cizik doesn‘t want to call the witnesses and I want to call the witnesses, so that‘s the problem that we have.
“The Court: The only possible witnesses would be your mother and the probation officer.
“[The Defendant]: And the guy who talked to me at a video conference, which I told him that I didn‘t have a place to stay and he told me—
“The Court: That‘s why you should have a lawyer represent you here if you want to present that information and subpoena somebody. All right—
“[The Defendant]: Well, I‘m going to let him go ahead. Go ahead, he could do it.
“The Court: Okay—he can what?
“[The Defendant]: He can represent me. Go ahead.
“The Court: Okay. Good enough. All right. So the state may call its first witness please.”