State v. Smith

558 A.2d 257, 18 Conn. App. 368, 1989 Conn. App. LEXIS 144
Connecticut Appellate Court·Decided May 16, 1989·No. 7014·Published·Cited by 13 cases

Opinion

Dupont, C. J.

The defendant appeals from the trial court’s judgment of revocation of his probation pursuant to General Statutes § 53a-32. The defendant claims that the trial court erred (1) in finding that he violated his probation, (2) in revoking his probation, and (3) in allowing him to represent himself without an adequate waiver of counsel. We find error on the last claim, and, therefore, need not decide the first two claims.

The defendant was sentenced on July 31,1986, to two concurrent terms of four years, execution suspended after time served, with five years probation, on his guilty pleas to one count of larceny in the third degree and to one count of attempt to commit burglary in the third degree, in violation of General Statutes §§ 53a-124 and 53a-103. On February 14,1987, the defendant was arrested by police officers responding to a domestic complaint, and charged with robbery in the third [370] degree, breach of peace, two counts of interfering with an officer, and two counts of assault on an officer.

On December 11,1987, the defendant was arrested pursuant to General Statutes § 53a-32 for violating his probation. After a probation revocation hearing, the court found that the defendant had engaged in conduct on February 14, 1987, that constituted a violation of his probation. The court thereupon revoked probation and sentenced the defendant to serve two concurrent terms of four years, less time served as of July 31,1986. The defendant was subsequently found not guilty on the charges that arose from his arrest on February 14, 1987.1

In his last claim, dispositive of this appeal, the defendant alleges that the court should not have accepted his waiver of his right to counsel.2 The right to assistance [371] of counsel is guaranteed to a defendant in a criminal proceeding by the sixth and fourteenth amendments [372] to the constitution of the United States; Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); and by our state constitution. State v. Gethers, 193 Conn. 526, 533, 480 A.2d 435 (1984) (Gethers I); State v. Varricchio, 10 Conn. App. 265, 267, 522 A.2d 843 (1987). This constitutional right has been extended to defendants in probation violation hearings by § 53a-32 (a)3 of the General Statutes. Gentry v. Warden, 167 Conn. 639, 645, 356 A.2d 902 (1975).

[373] “A criminal defendant also has the right to appear pro se in a state criminal trial ‘when he voluntarily and intelligently elects to do so.’ Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975) . . . .” State v. Gethers, 197 Conn. 369, 376, 497 A.2d 408 (1985) (Gethers II); State v. Varricchio, supra, 267. Because a defendant has a constitutional right to the assistance of counsel at a hearing concerning the possible violation of his probation; Gentry v. Warden, supra, 645; he has the concomitant constitutional right to represent himself at such a hearing upon an effective waiver of the right to the assistance of counsel. See Gethers I, supra, 533.

When a defendant is deciding whether to appear pro se or with a lawyer, it is vital for the trial court to satisfy itself that the defendant, if he or she chooses to appear pro se, is fully aware of the risks involved and makes the choice knowingly. Gethers II, supra, 380-81; State v. Varricchio, supra, 268. Our role as a reviewing court is to determine whether the defendant effectively waived his right to counsel. State v. Varricchio, supra, 269.

“This determination is based upon [United States] Supreme Court guidelines. First, courts are required to ‘ “indulge every reasonable presumption against waiver” of fundamental constitutional rights . . . .’ Johnson v. Zerbst, [304 U.S. 458,] 464 [58 S. Ct. 1019, 82 L. Ed. 1461 (1938)]. In addition, ‘[presuming waiver from a silent record is impermissible.’ Carnley v. Cochran, 369 U.S. 506, 516, 82 S. Ct. 884, 8 L. Ed. [374]*3742d 70 (1962). It has long been acknowledged that ‘[t]he determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ Johnson v. Zerbst, supra. This important decision rests within the discre-tionof the trial judge. Id., 465 . . . .” (Citation omitted.) State v. Varricchio, supra, 269-70.

Practice Book § 959 provides that “[a] person who is charged with an offense punishable by imprisonment, or who is charged with violation of probation . . . shall be entitled to have counsel represent him unless: (1) He waives such appointment pursuant to [Practice Book] Sec. 961 . . . .” Once the requirements of Practice Book § 9614 are satisfied, the defendant’s constitutional right to self-representation is triggered. The rule is written to implement the constitutional right of self-representation as well as to protect the defendant’s constitutional right to the assistance of counsel. Gethers I, supra, 534; State v. Varricchio, supra, 269; State v. Blackwell, 9 Conn. App. 587, 595, 520 A.2d 634, cert. denied, 203 Conn. 804, 525 A.2d 519 (1987).

The defendant argues that the court failed to comply with the provisions of Practice Book § 961 in that [375] the court did not inquire into the educational background or intelligence of the defendant, did not advise the defendant that he could have standby counsel appointed, or advise him of the range of punishments that he faced upon the revocation of his probation, or of the specific dangers of self-representation. The defendant also argues that the court should have advised him that the standard of proof in a revocation hearing is not “beyond a shadow of a doubt.”5 We conclude that the trial court failed to comply substantially with Practice Book § 961 (3), and, therefore, limit our discussion of the defendant’s arguments to that section.

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State v. Smith, 558 A.2d 257, 18 Conn. App. 368, 1989 Conn. App. LEXIS 144 (Colo. Ct. App. 1989).

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