Opinion
CV104003410S
07-26-2017
Gene Newland v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Samuel J. Sferrazza, S.J.
The petitioner, Gene Newland, seeks habeas corpus relief from a total, effective sentence of ten years imprisonment, followed by eight years special parole, imposed after a jury trial, for the crimes of sexual assault first degree and risk of injury to an underage person. The petitioner was unrepresented at his criminal trial, and he never appealed his conviction. The core of this habeas claim is that he was entitled to the appointment of counsel, based on his meager finances, and the trial court and the public defender's office for the Windham Judicial District erred in their handling of the petitioner's repeated requests for the appointment of counsel which were denied.
Judge Cobb heard the original habeas trial, vacated the petitioner's judgment of conviction, and returned the matter to the criminal docket for the Windham Judicial District for further adjudication, Newland v. Warden, Superior Court, Tolland Judicial District d.n. CV10-4003410 (June 13, 2013) [56 Conn.L.Rptr. 442, ]. The Appellate Court affirmed that decision, Newland v. Comm'r of Corr., 151 Conn.App. 134, 94 A.3d 676 (June 24, 2014). However, our Supreme Court reversed that ruling, Newland v. Comm'r of Corr., 322 Conn. 664, 142 A.3d 1095 (2016).
The Supreme Court overturned the lower courts' decisions on the narrow ground that the habeas petition only asserted a claim of trial court error in denying counsel, while the habeas court and the Appellate Court holdings were premised on public defender errors that were never alleged in the petition. Consequently, the Supreme Court had no occasion to address the merits of the petitioner's claim, Newland v. Commissioner, supra, 322 Conn. at 666. The high court ordered the case remanded for retrial and explicitly recognized that the petitioner might amend his petition to raise the issue of public defender mistakes, Id., 686.
On January 16, 2017, the petitioner filed such an amendment, and on June 2, 2017, the court heard the evidence and makes the following rulings of law and findings of fact. The amended petition contains three counts, to wit:
1. The trial court inadequately canvassed the petitioner concerning a waiver of his right to counsel;
2. The trial court erroneously found a knowing and intelligent waiver of that right; and
3. The Windham Judicial District public defender officials mistakenly recommended that the petitioner was ineligible for public defender representation.
The respondent's return alleges procedural default as to all claims based on the petitioner's failure to appeal from his criminal case and his failure to challenge the public defender's recommendation before the trial court.
On May 18, 2007, the trial court arraigned the petitioner and appointed a public defender to assist the petitioner for bond argument only. With bail set at $10,000, the court transferred the ease to the Part A docket to be called on June 15, 2007.
On that day, the assistant state's attorney reported to the court that the petitioner had sought public defender services, but the public defender's office " deemed him ineligible." The judge urged the petitioner to hire private counsel and continued the case to July 27, 2007.
The public defender's office determined that the petitioner's financial circumstances of owning a home and working two jobs disqualified him from appointment of counsel. Based on this determination, the court continued the criminal case several times to allow the petitioner the opportunity to retain counsel privately. Despite the passage of time and his fervent attempts to hire a lawyer, the petitioner was unable to afford one.
Whoever spoke with the petitioner and informed him and the trial court, through the prosecutorial staff, that his assets and income exceeded that permitting appointment of a public defender was wrong. As Deputy Chief Public Defender Brian Carlow testified at the habeas trial, mere ownership of a home does not control whether a person satisfies the guidelines for receiving public defender assistance. Instead, it is financial liquidity and access to those assets that dictates whether one is indigent for this purpose. Also, the nature and seriousness of the charges play a role in the recommendation regarding eligibility for legal assistance because the fees typically demanded by attorneys experienced in defending against major crime allegations are often very much higher than the fees charged for cases involving lesser violations of the law. Even very experienced criminal defense lawyers decline to represent clients, such as the petitioner, who are charged with sexual assaults of children.
When receiving an application for services, the public defender staff must gauge whether the expenses attendant to defending against such allegations will probably entail consulting and/or hiring expert witnesses in the areas of forensics, child psychology, and healthcare generally. In other words, an applicant facing a disorderly conduct charge may be deemed ineligible for appointment, while another person, in the same financial situation, may clearly be eligible because of the severity of the crime alleged.
Before his arrest in January 2007, the petitioner had already resorted to refinancing his home and used the money obtained to pay off monthly bills that had accrued. The refinancing reduced his equity to the level where further recourse through refinancing was unfeasible. When arrested, the petitioner had $1,100 remaining in a bank account from the proceeds of the refinancing loan. He attempted to secure additional loans on the property unsuccessfully. Eventually, the lender initiated foreclosure proceedings in July 2008.
Attorney Carlow reevaluated the petitioner's applications for public defender services, submitted in 2007 and 2008, and opined that the petitioner, at those times, should have been found eligible using the guidelines applicable to that time period. The court finds Attorney Carlow's opinion to be trustworthy and accurate. Therefore, the court also finds that the public defender staff at the Windham Judicial District office misadvised the court and the petitioner that the petitioner's applications ought to be denied.
The court now addresses the respondent's special defense of procedural default for failure to raise this error with the trial judge or through direct appeal.
In Johnson v. Commissioner, 218 Conn. 403, 589 A.2d 1214 (1991), our Supreme Court adopted the " cause and prejudice" standard espoused by the U.S. Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), which standard limits the reviewability of claims first raised in a habeas corpus action. In Johnson, supra, the cause and prejudice test was made applicable to procedural defaults which occurred at the trial level. This standard was extended to apply to the failure to raise claims on appeal in Jackson v. Commissioner, 227 Conn. 124, 132, 629 A.2d 413 (1993). Once the respondent alleges and establishes procedural default, the burden of proving good cause and prejudice for procedural defaults rests with the habeas petitioner. Johnson v. Commissioner, supra, 409. The existence of good cause for a procedural default either at trial or on appeal must derive from " some objective factor external to the defense [which] impeded [the petitioner's] efforts to comply with the state's procedural rule." Crawford v. Comm'r of Corr., 294 Conn. 165, 191, 982 A.2d 620 (2009).
General Statutes § 51-297(g) authorizes defendants who have been deemed to be ineligible by the public defender's office to " appeal the decision to the court before which the individual's case is pending." See, also Practice Book § 37-6(a). Failure to utilize this appeal process is a procedural default that shifts the burden to the petitioner to demonstrate good cause for nonuse of this procedure. Brown v. Comm'r of Corr., 141 Conn.App. 251, 262, 61 A.3d 554 (2013). Undoubtedly, had the petitioner taken advantage of this process and lost, that adverse decision would have been the proper subject for further appeal. See e.g., State v. Guitard, 61 Conn.App. 531, 537-38, 765 A.2d 30 (2001), cert. denied, 255 Conn. 952, 770 A.2d 32 (2001).
At a hearing on January 11, 2008, the trial judge inquired if the petitioner had applied for appointment of counsel. The petitioner responded that he had, but the public defender's staff told him he was ineligible because he owned a home.
On October 17, 2008, the petitioner informed the trial judge that he had lost one of his jobs. The judge suggested that he reapply for public defender services. The petitioner had reapplied and reiterated to the court that the public defender's office deemed him ineligible because he still owned a home even though his low income would otherwise qualify him for appointment of counsel. The petitioner asked if the court could assist him in procuring legal representation.
This court finds that the trial judge's response to that question to be critical as to the existence of good cause to excuse procedural default. Judge Robaina stated: " Well, I--I can't appoint--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 of the court." (Emphasis added.)
This court finds that the petitioner has established good cause for failing to avail himself of the appeal provided by § 51-297(g) and that he was prejudiced by the erroneous conclusions of the public defender's staff.
When the petitioner came before the court on January 11, 2008, the judge asked if he had sought a public defender. The petitioner replied that he had, but that the public defender's staff told him that his ownership in his residence disqualified him from such assistance. After multiple continuances and earnest attempts by the petitioner to hire private counsel, on October 17, 2008, the petitioner recounted his lack of success. Judge Robaina's comments quoted above ensued.
The petitioner reasonably understood these comments to mean that the public defender's office had the sole authority, or at least the final word, on indigency determination and whether counsel would be appointed. This matter was the petitioner's first criminal case. One cannot reasonably expect a pro se defendant with no criminal court experience, to suspect that the judge's statement, as quoted above, meant anything except that the public defender's decision was conclusive.
The public defender's consistent indication to the petitioner that home ownership rendered him, per se, ineligible for appointment of counsel, coupled with the trial judges' remarks implying that the court was powerless to overturn that rule, persuade this court to find that the petitioner has met his burden of proving, by a preponderance of the evidence, he had good cause for failing to appeal under § 51-297(g) or Practice Book § 37-6(a), based on presumed unavailability and futility.
Regarding the prejudice aspect of the Wainwright v. Sykes analysis, " actual prejudice is presumed when the petitioner's right to counsel is violated, " Dennis v. Comm'r of Corr., 134 Conn.App. 520, 536-37, 39 A.3d 799 (2012). Any conviction obtained after wrongful denial of legal assistance " mandates reversal even if no particular prejudice is shown and even if there is overwhelming evidence of guilt, " Id.
Therefore, the court grants the amended petition for habeas corpus relief as to the third count. The court vacates the petitioner's judgment of conviction and returns the case to the Part A division for the Windham Judicial District for further proceedings, including the setting of bond. Having reached this conclusion, the court need not address the adequacy of the trial court's right-to-counsel waiver canvass nor the voluntariness of that waiver.