State v. Pena

¶1dissenting. I disagree with the majority because I find that this case is factually distinct from State v. Watson, 198 Conn. 598, 504 A.2d 497 (1986). In Watson, our Supreme Court held that there was no error in denying defense counsel’s motion to withdraw his appearance or in refusing to appoint new counsel to represent the defendant on his motion to withdraw his pleas when the defendant made only unsupported allegations of ineffective assistance of counsel and conflict of interest. In Watson, however, it was clear that the defendant was not completely denied the effective assistance of counsel when the trial court denied his motion for the appointment of new counsel. As the Supreme Court noted, after the defendant’s request for new counsel had been denied, the trial court proceeded to hold a hearing on the defendant’s motion to withdraw his pleas, permitting the defendant either to have his original counsel address the court or to present his argument pro se. The defendant elected to proceed pro se.

¶2The factual scenario presented in this case is distinctly different. When the defendant’s motion for withdrawal of his plea on the basis of ineffective assistance of counsel was first raised, counsel for the defendant *535informed the court that he would be unable to represent the defendant on that matter because of what he perceived to be a conflict of interest.1 Accordingly, he asked for permission to withdraw his appearance. The trial court denied his motion to withdraw and granted the defendant a continuance to find new counsel. Because of his indigency, however, the defendant was unable to obtain new counsel. When the matter came before the court a second time, defense counsel again refused to assert his client’s claims of ineffective assistance of counsel. Accordingly, the defendant was forced to attempt to assert the basis of his claim of ineffective assistance of counsel himself. What resulted was a garbled statement which revealed nothing.

¶3These facts indicate that, unlike the defendant in Watson, the defendant in this case was completely denied the effective assistance of counsel to which he was constitutionally entitled. McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970); State v. High, 12 Conn. App. 685, 690, 533 A.2d 1217 (1987). Because the trial court denied defense counsel’s motion to withdraw his appearance and also denied the defendant’s motion for the appointment of new counsel, the defendant was forced to rely on the counsel whose assistance he claimed was ineffective to assert his claim for withdrawal of his plea. This counsel, however, was unwilling to assert the defendant’s claim of ineffective assistance of counsel. Accordingly, the defendant was required to act on his own behalf *536in this matter.2 I consider this a violation of the defendant’s constitutional right to the effective assistance of counsel.

¶4I would also dissent because I do not feel that the defendant had an adequate opportunity to express the merits of his. claim for withdrawal of his plea. When the court first asked the defendant to articulate the merits of his claim for withdrawal, the defendant gave a rather general response. The court asked the defendant a question on the matter, presumably to clarify the basis of the defendant’s claim, but before the defendant could give a complete response, he was interrupted by defense counsel. Defense counsel informed the court that it needed to know nothing further to rule on the merits of the defendant’s motion. The court proceeded onto other matters. Under these circumstances, I do not feel that the defendant was given an adequate opportunity to assert his claim of ineffective assistance of counsel. The defendant’s response to the court’s sole question at a subsequent hearing also did not constitute an adequate opportunity to assert the basis of the claim.

¶5I would remand this case for a hearing on the defendant’s motion to withdraw his plea. At that hearing, the defendant would be represented by new counsel.