Quint v. Commissioner of Correction

913 A.2d 1120

99 Conn.App. 395

Richard QUINT v. COMMISSIONER OF CORRECTION.

No. 26242.

Appellate Court of Connecticut.

Argued September 19, 2006.

Decided January 30, 2007.

COPYRIGHT MATERIAL OMITTED

William S. Palmieri, special public defender, for the appellant (petitioner).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Mark Hurley, supervisory assistant state's attorney, for the appellee (respondent).

BISHOP, McLACHLAN and ROGERS, Js.

ROGERS, J.

The petitioner, Richard Quint, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. Following that denial, the court granted the petition for certification to appeal.¹ The petitioner claims that the court improperly denied the habeas corpus petition because he wrongfully was denied the right to self-representation during his criminal trial. We affirm the judgment of the habeas court.

The following undisputed facts and procedural history are relevant to the appeal. The petitioner was convicted after a jury trial of three counts of criminal violation of a protective order in violation of General Statutes § 53a-223 (a) and three counts of criminal trespass in the first degree in violation of General Statutes § 53a-107 (a)(2).² He received an effective sentence of six years imprisonment, execution suspended after five years, and three months of probation. The petitioner's convictions were upheld on appeal. See State v. Quint, 97 Conn.App. 72, 904 A.2d 216, cert. denied, 280 Conn. 924, 908 A.2d 1089 (2006).

On February 5, 2003, before his trial commenced, the petitioner appeared in court to be heard on some motions that he had filed pro se. Prior to that hearing, the petitioner had been appointed a public defender, who subsequently had been removed at the petitioner's request. The petitioner informed the court, Holden, J., that he was being represented by attorney Thomas Bucci on a different file concerning charges unrelated to those underlying the present petition, but indicated that otherwise, he was without counsel. The following colloquy ensued:

"The Court: You intend to represent yourself. Is that your request of this court, sir?

"[The Petitioner]: At this point and time, yes.

"The Court: At this point and time? You wish to proceed for purposes of arguing these motions?

"[The Petitioner]: Yes.

"The Court: You like that arena? And then following that, you wish to determine whether or not you wish to hire a lawyer?

"[The Petitioner]: There about, yes."

Thereafter, the court passed on the petitioner's motions until Bucci arrived, apparently to be heard in connection with the petitioner's other file. The petitioner's motions were addressed, with the petitioner acting as his own counsel and presenting argument. The court then inquired of Bucci whether he wanted to represent the petitioner on his other charges, i.e., those underlying the petition. Bucci agreed, albeit reluctantly.³ The court concluded:

"Thank you. All the matters, absent some other intervention, Mr. Bucci is representing [the petitioner's] interest as of today. He has had his day in arguing his own motions. He has done quite well." The petitioner remained silent during this exchange and as the court and counsel proceeded to discuss scheduling matters. When Bucci requested that discovery materials be directed to his office instead of the correctional facility where the petitioner was incarcerated, the petitioner did not object.

The petitioner's cases proceeded to trial before a different judge, Cremins, J. At no time during trial or sentencing did the petitioner inform that judge⁴ that he wanted to represent himself.⁵ Ultimately, the petitioner was convicted and sentenced.

In an amended petition for a writ of habeas corpus filed July 23, 2004, the petitioner alleged that his confinement was unlawful because (1) Bucci was ineffective in failing to ensure that the petitioner be permitted to represent himself at trial, and (2) the petitioner was deprived of due process and the right to effective assistance of counsel because the trial court improperly failed to allow him to represent himself at trial.⁶ A hearing was held at which the petitioner and Bucci testified, and the record of the petitioner's criminal trial was submitted as evidence.⁷ Thereafter, the court, in an oral decision rendered December 2, 2004, denied the petition.

As to the claim alleging ineffective assistance of counsel, the court noted that the claim lacked allegations of Bucci's deficient performance or any resultant prejudice⁸ and, therefore, that portion of the petition "would not state a claim upon which relief could be granted." According to the court, "[t]here is no allegation that Mr. Bucci did anything other than an appropriate job in representing the petitioner. There is no allegation of any deficient performance, and there is no prejudice alleged on the part of any deficient performance by attorney Bucci. So, the court will find that even though [the petitioner] might not have wanted to be represented by attorney Bucci, there's nothing that the attorney did, nor is anything pleaded that the attorney did, that was anything other than appropriate." The court concluded that, as to the "two-pronged test of deficient performance and prejudice to the petitioner⁹ ... [n]either [was] alleged, [and] neither has been proven."¹⁰

The court concluded further that no relief could be granted on the petitioner's claim that he "had a constitutional right to represent himself and that by [the trial court] not honoring that request ... there has been a due process violation ...." The court recognized that such a right was established by United States Supreme Court jurisprudence; see Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); and observed that Judge Holden, "implicit[ly]," had found that the petitioner had not waived his right to counsel in a knowing and intelligent manner. It concluded, however, that the question of "whether that was a proper action by the trial court [is] not before this habeas court." In so concluding, the court noted that it was unclear whether the petitioner's direct appeal of his underlying convictions, which was alluded to in the petition, still was ongoing. On the basis of the foregoing analysis, the court denied the petition. It thereafter granted certification to appeal, and this appeal followed.

The petitioner claims that the court improperly concluded that no relief could be granted on his petition. He argues that the right to proceed pro se is one guaranteed by both the Connecticut and federal constitutions, and, when a criminal defendant asserts that right, a trial court is required to make a determination of whether the concomitant waiver of the right to counsel is knowing, intelligent and voluntary. According to the petitioner, the evidence presented to the habeas court showed that he was deprived of his right to self-representation because he asserted that right, and the trial court thereafter failed to make the requisite determination of waiver. The petitioner claims that the foregoing requires an automatic reversal of his convictions, even if no prejudice has been shown. Although the petitioner is correct in his recitation of the legal principles governing the right to self-representation, we conclude nevertheless that he was not deprived of that right because the record demonstrates that he failed to assert it in a clear and unequivocal manner.

We begin by noting the applicable standard of review. "The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous . . . . The application of the habeas court's factual findings to the pertinent legal standard, however, presents a mixed question of law and fact . . . ." (Internal quotation marks omitted.) Faraday v. Commissioner of Correction, 95 Conn.App. 1, 8, 894 A.2d 1048, cert. granted on other grounds, 279 Conn. 907, 901 A.2d 1225 (2006). Particularly, when the "facts are essential to a determination of whether the petitioner's sixth amendment rights have been violated, we are presented with a mixed question of law and fact requiring plenary review." (Internal quotation marks omitted.) Mercer v. Commissioner of Correction, 51 Conn.App. 638, 644, 724 A.2d 1130, cert. denied, 248 Conn. 907, 731 A.2d 309 (1999).

At the outset, we agree with the petitioner's contention that the habeas court improperly concluded that no relief could be granted on the portion of the petition claiming deprivation of the right to self-representation. Normally, because such a claim concerns the actions of the trial court on the record and does not require the development of additional evidence, it properly is raised in the context of a direct appeal. See, e.g., State v. Carter, 200 Conn. 607, 611-14, 513 A.2d 47 (1986); State v. Williams, 64 Conn.App. 512, 525-31, 781 A.2d 325, cert. granted on other grounds, 258 Conn. 911, 782 A.2d 1251(2001) (appeal dismissed April 24, 2003); State v. Casado, 42 Conn.App. 371, 381-82, 680 A.2d 981, cert. denied, 239 Conn. 920, 682 A.2d 1006 (1996). Furthermore, when a habeas petitioner raises a claim that he could have brought in the context of his direct appeal, he typically must surmount an additional procedural hurdle before that claim may be considered on its merits. Specifically, "[b]ecause habeas corpus proceedings are not an additional forum for asserting claims that should properly be raised at trial or in a direct appeal, a petitioner must meet the cause and prejudice standard of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), for determining the reviewability of habeas claims that were not properly pursued on direct appeal." (Internal quotation marks omitted.) Milner v. Commissioner of Correction, 63 Conn.App. 726, 731, 779 A.2d 156 (2001)...