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State v. Walker
STATE OF CONNECTICUT v. YERO S. WALKER
(AC 46936)
Cradle, C. J., and Wilson and Prescott, Js.
Syllabus
Convicted of the crimes of carrying a pistol without a permit and criminal
possession of a pistol, and of being a persistent felony offender, the defendant appealed to this court. The defendant claimed, inter alia, that the trial
court had violated his constitutional right to be present at all critical stages
of the prosecution when it allowed him to be tried and sentenced for being
a persistent felony offender after he failed to appear in court for both the
trial on that charge and his sentencing. Held:
The trial court violated the defendant’s right to be present at trial and
sentencing with respect to part B of the state’s substitute information, which
charged the defendant with being a persistent felony offender, when the
proceedings concerning that charge were conducted in the defendant’s
absence, as the defendant had never been notified of the contents of part
B of the substitute information, and, therefore, any waiver by the defendant
of the right to be present during those proceedings could not have been
knowing and intelligent.
Because the state failed to demonstrate that this constitutional violation
was harmless beyond a reasonable doubt, this court reversed the defendant’s
conviction of being a persistent felony offender and remanded the case for
resentencing.
The defendant could not prevail on his claim that the trial court had violated
his right to counsel of his choice when the court denied his request for a
continuance, immediately prior to the commencement of jury selection, for
the purpose of replacing his court-appointed counsel with private counsel,
as the defendant was afforded the opportunity to retain substitute counsel
almost three years prior to the commencement of jury selection, when he
first raised the issue of replacing his court-appointed counsel with the trial
court, but failed to do so, and at no point did the defendant assert a substantial complaint concerning his court-appointed counsel’s representation of
him.
Argued March 27—officially released June 12, 2025*
Procedural History
Two part substitute information charging the defendant, in the first part, with the crimes of carrying a pistol
* June 12, 2025, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
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State v. Walker
without a permit and criminal possession of a pistol,
and, in the second part, with being a persistent felony
offender, brought to the judicial district of Waterbury,
where the charge of criminal possession of a pistol
was tried to the court, Schuman, J.; finding of guilty;
thereafter, the charge of carrying a pistol without a
permit and the second part of the information were
tried to the jury before Schuman, J.; verdict of guilty;
subsequently, the court, Schuman, J., rendered judgment in accordance with the finding of guilty and the
verdict, and the defendant appealed to this court.
Reversed in part; further proceedings.
Alice Osedach Powers, assigned counsel, for the
appellant (defendant).
Raynald A. Carre, deputy assistant state’s attorney,
with whom were Maureen Platt, state’s attorney, and
Elena Palermo, senior assistant state’s attorney, for the
appellee (state).
Opinion
CRADLE, C. J. The defendant, Yero S. Walker, appeals
from the judgment of conviction, rendered following a
jury trial, of carrying a pistol without a permit in violation of General Statutes (Rev. to 2017) § 29-35 (a)1 and
being a persistent felony offender in violation of General
Statutes § 53a-40 (g), and rendered after a trial to the
court, of criminal possession of a pistol in violation of
General Statutes (Rev. to 2017) § 53a-217c (a) (1).2 On
appeal, the defendant claims that the trial court violated
his constitutional rights (1) to be present at all critical
stages of his prosecution when it determined that he
waived that right and tried and sentenced him in
1
Hereinafter, all references to § 29-35 are to the 2017 revision.
2
Hereinafter, all references to § 53a-217c are to the 2017 revision.
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State v. Walker
absentia, and (2) to counsel of his choice when it denied
his motion for a continuance to retain substitute counsel. We disagree with the defendant’s claim that his
constitutional right to counsel was violated. We agree,
however, that the trial court improperly determined
that he had waived his right to be present at trial and
sentencing as to the charge of being a persistent felony
offender3 and therefore reverse the judgment as to that
charge only and remand the case for resentencing on
the remaining two convictions.
The following facts and procedural history are relevant to the defendant’s claims on appeal. On October
7, 2018, the defendant was arrested in connection with
an incident in which shots were fired in a parking lot
in Waterbury. The state initially charged the defendant
with illegal transfer/purchase of a pistol in violation of
General Statutes (Rev. to 2017) § 29-33; carrying a pistol
without a permit in violation of § 29-35 (a); illegal possession of a large magazine in violation of General Statutes (Rev. to 2017) § 53-202w (c) (1); tampering with
physical evidence in violation of General Statutes § 53a-
155 (a); interfering with an officer in violation of General Statutes (Rev. to 2017) § 53a-167a (a); stealing a
firearm in violation of General Statutes § 53a-212 (a);
and criminal possession of a pistol in violation of § 53a-
217c (a) (1).
On October 30, 2018, the defendant appeared in court,
and the court appointed Assistant Public Defender John
Cizik to represent him. At that time, Cizik entered pro
forma not guilty pleas to the charges on behalf of the
defendant.
3
In light of the relief that we afford the defendant with respect to this
claim, we need not address the defendant’s separate claim that his constitutional right to due process was violated when the trial court failed to inform
him of the contents of the state’s part B information, in which he was
charged with being a persistent felony offender.
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State v. Walker
The trial commenced on April 27, 2022. Prior to proceeding with jury selection, the court noted that the
state had filed a substitute information charging the
defendant with carrying a pistol without a permit in
violation of § 29-35 (a) and criminal possession of a
pistol in violation of § 53a-217c (a) (1). The court, Schuman, J., confirmed with Cizik at that time the defendant’s not guilty plea on both charges, and his election
to be tried before a jury on the charge of carrying a
pistol without a permit and by the court on the charge
of criminal possession of a pistol.
Also on April 27, 2022, the state filed a part B information charging the defendant with being a persistent felony offender in violation of § 53a-40 (g) and seeking
enhanced penalties on the charges of carrying a pistol
without a permit, criminal possession of a pistol and
‘‘criminal possession of ammunition.’’4 There was no
mention on the record of the part B information. On May
25, 2022, the state filed an amended part B information
seeking enhanced penalties only on the charge of criminal possession of a pistol.
The jury found the defendant guilty of carrying a
pistol without a permit and the court found the defendant guilty of criminal possession of a pistol. The jury
also later found the defendant guilty of being a persistent felony offender.5 Thereafter, the court sentenced
the defendant to a total effective sentence of fifteen
years of incarceration, of which three years were mandatory, and five years of special parole. This appeal
followed. Additional facts and procedural history will
be set forth as necessary.
4
The record does not reflect that the defendant was charged with criminal
possession of ammunition in this case.
5
Although the state had given notice on April 25, 2022, of its intent to
seek sentence enhancement pursuant to General Statutes § 53-202k for the
commission of a class A, B or C felony with a firearm, it ultimately did not
pursue enhancement of the defendant’s sentence pursuant to that statute.
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State v. Walker
I
The defendant first claims that the court violated his
constitutional right to be present at all critical stages
of his prosecution when it tried and sentenced him
in absentia. Specifically, the defendant claims that the
court improperly determined that he had waived his
right to be present during trial and sentencing on the
state’s part B information charging him with being a
persistent felony offender because he had never been
notified of the contents of the part B information, and,
consequently, any waiver could not have been knowing
and intelligent. We agree.
The following additional procedural history is relevant to this claim. Following jury selection, at which
the defendant was present with counsel, evidence was
scheduled to begin on May 24, 2022. On the morning
of May 24, the defendant did not appear in court, which
prompted the court to issue a capias to have him
brought to court. The court recessed until 2:30 p.m.
When court reconvened, the state indicated that neither
its inspector nor other law enforcement officers had
been able to locate the defendant. Defense counsel indicated that he also had been unable to reach the defendant. In response to the state’s argument that trial
should proceed in the defendant’s absence, the court
first recounted: ‘‘We started jury selection several
weeks ago, and we did pick two jurors, and then—and
on one of those days, the defendant asked to leave
early to pick his daughter up at school, and I granted
permission.
‘‘But then I believe, on the second day of jury selection, the defendant informed us that he was sick and
supplied a note indicating he would not be available to
return to work until Saturday of that week. That caused
us to suspend jury selection and reschedule the trial
because we had planned on completing jury selection
that week and trying the case the next week given
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State v. Walker
the tight trial schedule that I had and also particularly
[the state].
‘‘We then resumed jury selection last week and, on
one day of jury selection, the defendant was late. I told
him he’s required to be here at the beginning of court.
And we completed jury selection last week. At the conclusion of jury selection, I did tell the defendant that
a trial would start Tuesday and he was required to be
here from 10 a.m. to 5 p.m. on the days of trial this week.
‘‘So, I believe the defendant has had full notice of
the trial. It’s disturbing, obviously, that he is not here
or [that he did not call] anyone including his lawyer to
inform us of any reason why he can’t be here.’’
The court then explained: ‘‘[U]nder this circumstance, we look at Practice Book § 44-8 (2), which provides that the defendant must be present at the trial
and at the sentencing hearing, but if the defendant will
be represented by counsel at the trial or sentencing
hearing, the judicial authority may direct that the trial
or part thereof or the sentencing hearing be conducted
in the defendant’s absence if the judicial authority determines that the defendant waived the right to be present.
. . . [A]t this point, I just want to address the waiver
issue. . . . I am going to find that the defendant has
waived his right to be present. The case law supports
this finding . . . [in that it] states [that], if a defendant
deliberately leaves the courtroom after his trial has
begun, he forfeits his right to be present at trial. [Our
case law also] . . . states [that] a waiver of the right
to be present at trial may be manifested by . . . an
intelligent and intentional action. It does not have to
be expressed but may consist of acts or conduct from
which it may be implied, and I find that the defendant’s
failure to be here, after he was informed that he was
required to be here and numerous times told to be here
on time, his failure to be here without calling and giving
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State v. Walker
us any indication as to a reason why he couldn’t be
here after at least three hours of [a] police search for
him without finding him [at] the addresses where he’s
likely to be found, not returning or answering or
returning phone calls, does constitute a waiver of the
right to be present under § 44-8 (2).’’
After defense counsel voiced his concern that proceeding without the defendant would violate his constitutional rights, the court explained: ‘‘What I’m going to
try to do is balance the competing interests here. [The]
Practice Book does provide that the court may direct
that the trial or a part thereof be conducted in the
defendant’s absence. I’m going to order that a part of
the trial be conducted in the defendant’s absence this
afternoon to accommodate the two state’s witnesses
who are not available for the rest of the trial period,
which was really today and tomorrow.
‘‘In doing so, I’m considering a number of factors.
One, of course, is their availability. Two is a capias was
issued over three hours ago, and the defendant has
not been located, so there’s been at least a reasonable
opportunity to find the defendant. He has not been
located, and he has not called.
‘‘And I will instruct the jur[ors] that they should draw
no unfavorable inference from the defendant’s absence
and that his absence should play no role in their verdict,
and they should not speculate as to the reasons why
the defendant is not here.
‘‘On the other hand, in the hopes that the defendant
can be found overnight, I don’t want to go ahead with
the rest of the trial until tomorrow. Those witnesses
are available. I think it’s reasonable to wait until tomorrow at 10 a.m. to see whether the defendant does appear
or can be found before we go ahead with any more of
the trial in absentia.
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State v. Walker
‘‘I would also add that at this point, rescheduling
the trial is not a meaningful option. We have already
rescheduled the trial once because of the defendant’s
absence, and, at this time, the balance weighs in favor
of the state and the court’s interest in moving ahead
with this case. I will note that, next week, both [the
state’s attorney] and [the court] start a murder case
that we project will take five weeks for jury selection
and evidence, and there’s a speedy trial motion in that
case. So that has to be heard. I think it would be inconvenient and unfair to the state to reschedule this case a
third time. The state has prepared its witnesses each
time, and, in all fairness, the state has a right to be
heard here. And I think it would be prejudic[ial] if we
rescheduled it again.
‘‘I think hearing the testimony of the witnesses [who
will] not be available in the defendant’s absence this
afternoon and then deferring the rest of the trial until
tomorrow morning when, hopefully, the defendant will
be here, strikes the appropriate balance giving all the
competing considerations. [Defense counsel], of
course, will be here for all of this and certainly enjoys
full right of cross-examination of these witnesses.’’ The
jury was sworn, and trial began in the defendant’s
absence.
The defendant again failed to appear in court on the
next day. The court explained: ‘‘Numerous efforts have
been made to bring him here for his benefit, but he’s
chosen not to be here. I construe that as a continuing
waiver of his right to be here, and, since the state has
witnesses who are ready to testify, we have a jury, we
started the trial. We already rescheduled this trial, and,
for all the reasons I stated yesterday, I concluded that
we should continue the trial in absentia.’’ Trial again
proceeded in the defendant’s absence.
On that same day, after closing arguments, the court
indicated to counsel that it had found the defendant
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State v. Walker
guilty of criminal possession of a pistol, and, ‘‘based
on that decision, we will ask the jury, after it’s rendered
its verdict on carrying a pistol without a permit, to come
back and hear evidence on . . . part B . . . of the
information charging [him] with [being a] persistent
felony offender.’’ The jury thereafter found the defendant guilty of carrying a pistol without a permit, and
the court instructed the jury to return the following day
to consider the state’s part B information.
The defendant again did not appear in court the next
day. At that time, the court confirmed with defense
counsel that ‘‘the defendant enters a not guilty plea and
jury election on the second part of the information
. . . .’’ After the jury found the defendant guilty of being
a persistent felony offender, the court set a sentencing
date of August 24, 2022.
On August 24, 2022, the defendant failed to appear
in court for sentencing. The court again found that he
waived his right to be present and proceeded to sentence him in absentia.6
On appeal, the defendant claims that his constitutional right to be present at his trial and sentencing was
violated in that the court improperly determined that
he waived that right because he had not been apprised
of the part B information. Although defense counsel
objected to proceeding with trial in the defendant’s
absence, counsel did not assert the specific claim that
the defendant could not have waived his constitutional
right to be present because he did not have notice of the
6
The court reasoned: ‘‘[T]he defendant was here for . . . the beginning
of jury selection and was well aware, as far as I can tell, that this trial was
going forward. And we did go forward in the defendant’s absence. The
defendant can’t reasonably assume that the case is going to go away merely
because he doesn’t appear in court, or that we will just wait until he gets
back. So, I view the defendant’s failure to appear today as an intentional
waiver of his right to appear and therefore believe that we should conduct
the sentencing in absentia.’’
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State v. Walker
part B information. Accordingly, the defendant seeks
review pursuant to State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989), as modified by In re Yasiel
R., 317 Conn. 773, 781,
120 A.3d 1188 (2015).
‘‘Pursuant to Golding, a [defendant] can prevail on
a claim of constitutional error not preserved at trial
only if all of the following conditions are met: (1) the
record is adequate to review the alleged claim of error;
(2) the claim is of constitutional magnitude alleging
the violation of a fundamental right; (3) the alleged
constitutional violation . . . exists and . . . deprived
the [defendant] of a fair trial; and (4) if subject to harmless error analysis, the [state] has failed to demonstrate
harmlessness of the alleged constitutional violation
beyond a reasonable doubt. . . . The first two steps in
the Golding analysis address the reviewability of the
claim, [whereas] the last two steps involve the merits
of the claim.’’ (Emphasis in original; internal quotation
marks omitted.) State v. Daniels, 228 Conn. App. 321,
342, 324 A.3d 820, cert. denied,
350 Conn. 926,
326 A.3d
248 (2024).
The state does not dispute, and we conclude, that
the record is adequate to review the defendant’s claim
and that the claim is of constitutional magnitude. The
first two prongs of Golding therefore have been satisfied. The state challenges the defendant’s assertion that
a constitutional violation exists because he waived his
right to be present at trial and sentencing, and, thus,
argues that the defendant’s claim fails under the third
prong of Golding. We disagree.
‘‘It has long been settled that an accused enjoys a
right both at common law and pursuant to the sixth
amendment’s confrontation clause to be present at all
stages of trial. . . . It is also well settled that under
the due process clauses of the fifth and fourteenth
amendments a defendant must be allowed to be present
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State v. Walker
at his trial to the extent that a fair and just hearing
would be thwarted by his absence. . . . Nevertheless,
the defendant’s presence is not required when the right
is waived. Waiver in this context is addressed both in
our rules of practice and in our case law. . . .
‘‘Pursuant to Practice Book § 44-8: The defendant
must be present at the trial and at the sentencing hearing, but, if the defendant will be represented by counsel
at the trial or sentencing hearing, the judicial authority
may: (1) Excuse the defendant from being present at
the trial or a part thereof or the sentencing hearing if
the defendant waives the right to be present; (2) Direct
that the trial or a part thereof or the sentencing hearing
be conducted in the defendant’s absence if the judicial
authority determines that the defendant waived the
right to be present; or (3) Direct that the trial or a part
thereof be conducted in the absence of the defendant
if the judicial authority has justifiably excluded the
defendant from the courtroom because of his or her
disruptive conduct . . . . Consequently, the trial court
is authorized to direct the trial or a part thereof to
be conducted in the absence of the defendant who is
represented by counsel if the court determines that he
has waived his right to be present. . . .
‘‘Waiver is the intentional relinquishment of a known
right. Waiver does not have to be express, but may
consist of acts or conduct from which waiver may be
implied. . . . Moreover, whether there has been an
intelligent and competent waiver of the right to presence must depend, in each case, upon the particular
facts and circumstances surrounding that case. . . .
‘‘The United States Supreme Court has stated that,
where the accused is not in custody, the prevailing rule
has been, that if, after the trial has begun in his presence,
he voluntarily absents himself, this does not nullify what
has been done or prevent the completion of the trial,
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State v. Walker
but, on the contrary, operates as a waiver of his right
to be present and leaves the court free to proceed with
the trial in like manner and with like effect as if he
were present. . . . Taylor v. United States, 414 U.S.
17, 19,
94 S. Ct. 194,
38 L. Ed. 2d 174 (1973).’’ (Citations
omitted; internal quotation marks omitted.) State v.
Hernandez, 197 Conn. App. 257, 262–63,
231 A.3d 266,
cert. denied, 335 Conn. 960,
239 A.3d 1215 (2020).7
For most purposes, commencement of a jury trial is
generally defined as the commencement of the voir
dire examination of potential jurors. See, e.g., State v.
Hargett, 343 Conn. 604, 637,
275 A.3d 601 (2022). Here,
the defendant was out on bond and was present in
court with counsel throughout jury selection. When jury
selection was complete, the court specifically
addressed the defendant to ensure that he understood
that he needed to be present for the remainder of trial
the following week. The defendant nevertheless inexplicably failed to appear. On that basis, the defendant does
not challenge the court’s determination that he waived
his right to be present for trial and sentencing on the
charges of carrying a pistol without a permit and criminal possession of a pistol; nor could he reasonably have
done so. The defendant was aware of those charges
and the potential sentences associated with the charged
offenses. Defense counsel indicated in court that he
had discussed those charges with the defendant and
7
Of course, cases in which a defendant is in custody or present at trial
and then affirmatively expresses his decision to absent himself from trial
are different from those, such as the present case, in which the defendant,
without explanation, simply does not appear for trial. ‘‘The trial court is not
required to preemptively notify a defendant that his case will proceed in
his absence without any indication that he would be absent at some later
time. This requirement would give the defendant the power to control the
court by unilaterally prevent[ing] his case from going forward, allowing him
to defy the law with impunity, and in the process, to paralyze the [criminal]
proceedings.’’ (Internal quotation marks omitted.) State v. Hernandez, supra,
197 Conn. App. 268.
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State v. Walker
that the defendant was aware of them and the attendant
liability if convicted of them. The record does not
reflect, however, that the defendant was ever made
aware of the existence of the part B information or its
contents, or the potential sentencing ramifications if
convicted of the charge set forth therein.8
‘‘The sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution
guarantee a criminal defendant the right to be informed
of the nature and cause of the charges against him with
sufficient precision to enable him to meet them at trial.
. . . [That] the offense should be described with sufficient definiteness and particularity to apprise the
accused of the nature of the charge so he can prepare
to meet it at his trial . . . [is a principle] of constitutional law [that is] inveterate and sacrosanct.’’ (Citations omitted; internal quotation marks omitted.) State
v. Laracuente, 205 Conn. 515, 518,
534 A.2d 882 (1987),
cert. denied, 485 U.S. 1036,
108 S. Ct. 1598,
99 L. Ed.
2d 913 (1988).
Consistent with this fundamental constitutional mandate, Practice Book § 37-11 provides: ‘‘Prior to the time
the defendant enters a guilty plea, or, if the defendant
pleads not guilty, prior to the commencement of trial,
the court shall notify the defendant of the contents of
8
General Statutes § 53a-40 provides in relevant part: ‘‘(g) A persistent
felony offender is a person who (1) stands convicted of a felony other than
a class D or E felony, and (2) has been, at separate times prior to the
commission of the present felony, twice convicted of a felony other than a
class D or E felony, if such felonies were committed during the ten years
prior to the commission of the present felony.
…
‘‘(o) When any person has been found to be a persistent felony offender,
the court, in lieu of imposing the sentence authorized by section 53a-35a
for the crime of which such person presently stands convicted, may impose
the sentence of imprisonment authorized by said section for the next more
serious degree of felony; provided the sentence imposed may not be less
than three years, and provided further three years of the sentence so imposed
may not be suspended or reduced by the court. . . .’’
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State v. Walker
the second part of the information. The clerk shall enter
on the docket the time and place of the giving of such
notification and, where necessary, shall include entry
thereof in the judgment file.’’
Here, the record reflects that the state first filed a
part B information on April 27, 2022. The state filed its
substitute information on that same day. Although the
court addressed the substitute information with defense
counsel, there was no mention of the part B information.9 The record does not reflect that the court had
ever notified the defendant of the contents of the part
B information.10 There is likewise no indication in the
court file that the defendant was so advised. In fact,
we cannot glean from the record that the defendant
ever had any knowledge of the contents of the part B
information and what the state was required to prove
in order to determine that he is a persistent felony
offender and the penalty that he faced. Rather, after
the court announced its finding of guilt on the criminal
possession charge, it asked defense counsel if the defendant was pleading not guilty with respect to the part B
9
Although the court advised the defendant of the state’s intention to seek
sentence enhancement under § 53-202k, that advisement cannot supplant
the requirement, set forth in Practice Book § 37-11, that the defendant be
advised of the contents of the part B information, which required different
proof and provided for a different sentence enhancement than a sentence
enhancement under § 53-202k.
10
After the court advised the defendant of the state’s intention to seek
sentence enhancement under § 53-202k, the court noted that ‘‘there’s still
an outstanding issue as to persistent felony offender enhancement. And I’m
not going to raise that now, unless you want me to, but, rather, wait to see
what the verdict is and then see whether we should have a separate proceeding before the jury, the court, or whether there would be a plea or what on
persistent serious felony offender, but I don’t think we need to address that
right now.’’ This was the court’s only reference to the part B information
on the record. Based on the court’s comment, it intended to advise the
defendant of the part B information after it made its finding of guilt as to
the criminal possession of a pistol charge. Unfortunately, that intent was
thwarted by the defendant’s absence at trial, which could not reasonably
have been anticipated by the court.
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State v. Walker
information and whether he was electing a jury trial on
the charge contained therein. In the absence of the
defendant, defense counsel responded affirmatively.11
The contents of the part B information were not read
in court until they were read to the jury at the commencement of its consideration of it.
Because the defendant was never apprised of the
part B information, he could not have intelligently and
knowingly waived any rights associated with it. We
therefore conclude that the court improperly determined that he did so. In the absence of a valid waiver,
the defendant’s constitutional right to be present at trial
and sentencing, as to the part B information only, was
violated when the proceedings related to that charge
went forward in his absence.
Having determined that a constitutional violation
exists, we turn to the fourth prong of Golding and
consider whether the state has demonstrated that that
violation was harmless beyond a reasonable doubt.
‘‘[A]n otherwise valid conviction should not be set aside
if the reviewing court may confidently say, on the whole
record, that the constitutional [violation] was harmless
beyond a reasonable doubt. . . . In evaluating whether
a denial of presence [from a critical stage of the proceedings] is harmless, [w]e first determine whether the
defendant’s presence . . . would have contributed to
his ability to defend against the charges. . . . We then
consider the evidence presented at trial.’’ (Internal quotation marks omitted.) State v. Davis, 186 Conn. App.
385, 395,
199 A.3d 1149 (2018), cert. denied,
330 Conn.
965,
199 A.3d 1081 (2019). ‘‘The state bears the burden
11
We note that Practice Book § 37-7 provides: ‘‘Upon being read the
charges against him or her contained in the information or complaint, the
defendant shall enter a plea of not guilty, guilty, or nolo contendere.’’ Here,
the defendant was not present when Cizik entered a plea of not guilty on
behalf of the defendant with respect to the part B information and elected
a jury trial thereon.
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of demonstrating that the constitutional [violation] was
harmless beyond a reasonable doubt.’’ (Internal quotation marks omitted.) State v. Alexis, 194 Conn. App.
162, 176,
220 A.3d 38, cert. denied,
334 Conn. 904,
219
A.3d 800 (2019). The defendant argues that, because he
was tried and sentenced in absentia, he was not able
to assist his counsel in his own defense at trial or to
assist counsel in arguing mitigation of his punishment
at sentencing. This prong merits little discussion in that
the state has failed to address, let alone demonstrate,
harmlessness.
On the basis of the foregoing, we conclude that the
defendant’s constitutional right to be present at trial
and sentencing on the part B information was violated
and that the judgment must be reversed as to the charge
of being a persistent felony offender.
II
The defendant also argues that his right to counsel
of his choice was violated when the court denied his
request for a continuance for the purpose of retaining
private counsel. We are not persuaded.
The following additional procedural history is relevant to this claim. The defendant filed a letter dated
June 18, 2019, wherein he asked that Cizik be removed
as his attorney and replaced by a special public defender
on the ground that Cizik’s representation of him had
demonstrated a lack of interest for his ‘‘well-being
. . . .’’ In his letter, the defendant complained that
‘‘Cizik ha[d] told me that he knows what happened in
result to my charges and that I am guilty which is untrue,
and I also find [it] to be unfair, as if I have no say in
this matter.’’ The defendant indicated in his letter that
‘‘[t]ime is of the essence for me as my case is on the trial
list with a possibility of being called at any time . . . .’’
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On July 17, 2019, the court, Fasano, J., held a hearing
to address the defendant’s request for new counsel. The
defendant told the court that he had an issue with Cizik’s
advice to plead guilty to the charges against him. The
court explained that the decision to plead guilty would
‘‘never be up to [Cizik],’’ and, in fact, Cizik had rejected
the court’s earlier plea offer, and the case was on the
trial list. The court told the defendant, ‘‘[i]f you need
another attorney, you would hire one yourself. I can’t
just keep giving you attorneys out of that office unless
I thought [that Cizik] was doing something wrong or
that he was not appropriate under the circumstances.
And he’s doing all he can.’’ The defendant complained
that Cizik was denying his requests for copies of his
file, specifically, discovery materials in his file. When
the court informed the defendant that he had only the
right to review those materials, but not the right to have
copies of them, he complained that he had not even
been allowed to review them. Cizik refuted that claim.
The court again told the defendant, ‘‘[i]f you want to
bring in another attorney, you have to do that on your
own.’’ The defendant indicated that he would have to
try to talk to his family about doing so, and the court
responded, ‘‘[y]es, you can do that. . . . The matter’s
on the trial list. It’s not going to come up right away,
so you have time.’’
On April 27, 2022, when the parties initially were
scheduled to commence jury selection, the defendant
again raised the issue of ‘‘firing [Cizik] and hiring new
counsel.’’ The defendant expressed disagreement with
Cizik’s representation that he was prepared for trial.
The court indicated that it was not inclined to continue
cases on the eve of trial, that this case began in 2018,
and that the defendant’s effort to replace Cizik should
have been raised a long time ago. The defendant
explained that he tried to have Cizik removed from his
case previously but that he had only been out on bond
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State v. Walker
for six months and was now working and trying to
secure the money to retain private counsel. After the
court indicated that potential jurors had been summoned, both attorneys were present and prepared to
begin trial, and the ‘‘case is old’’ and had been ‘‘carefully
fit into [the court’s] trial schedule,’’ the court referred
the defendant’s request for time to hire new counsel to
Judge Iannotti.12
Judge Iannotti began by recounting: ‘‘Judge Schuman
brought to my attention that [the defendant] indicated
that he wanted to hire a new lawyer. The case has been
called into trial. The case is at least two years old. . . .
It might be more than that . . . [possibly] four years
old. He’s been out on bond for a considerable period
of time. He’s had plenty of time to consult with other
attorneys. It is improper to ask for a new counsel when
your case is ready to face jury selection. You have the
right to hire anybody you want, and, certainly, I’m not
preventing him from doing that, of course. He can hire
anybody he wants, but it has to be today, and they have
to come in and say they’re ready to start trying the case.
The case is not going to be delayed after four years
because, after four years, he indicates that he now
wants new counsel, of which I can’t understand possibly
why, when you have [Attorney] Cizik representing you.
So there’s not going to be a continuance of this case
. . . for new counsel at this time.’’
The defendant asserted that he was unaware that his
case had been scheduled for trial, to which the court
responded: ‘‘Well, I would think, sir, that that’s not
correct. The case was placed on the firm jury [list] with
you present. The offer was rejected with you present.
When the case is placed on [the] firm jury [list], that
means it’s ready to go. That means you have rejected
12
The proceeding before Judge Iannotti occurred on the same day in a
different courtroom.
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the offer, that you don’t want a plea, and that you’re
telling the court, sir, that you want a trial. The only
thing I did was give you everything that you wanted.’’
When the defendant persisted in claiming that Cizik did
not notify him that the case had been scheduled for
trial, the court told the defendant that it was ‘‘more
than reasonably confident that [Cizik] explained everything to [him]’’ and sent the case back to Judge Schuman
to proceed with jury selection.13
‘‘It is well established that [a] defendant is not entitled
to the appointment of a different public defender to
represent him without a valid and sufficient reason.
. . . Nor can a defendant compel the state to engage
counsel of his own choice by arbitrarily refusing the
services of a qualified public defender. . . . When
reviewing the adequacy of a trial court’s inquiries into
a defendant’s request for new counsel, an appellate
court may reverse the trial court only for an abuse of
discretion. . . . [Of course, a] trial court has a responsibility to inquire into and to evaluate carefully all substantial complaints concerning court-appointed counsel
. . . . The extent of that inquiry, however, lies within
the discretion of the trial court. . . . When a defendant’s assertions fall short of a seemingly substantial
complaint, we have held that the trial court need not
inquire into the reasons underlying the defendant’s dissatisfaction with his attorney. . . .
13
Cizik informed the court: ‘‘Your Honor, I believe we had a discussion
in chambers last Wednesday about cases that were being called in for trial.
[The defendant’s] was one of them. My office contacted him on Wednesday
and told him that his case was down to schedule his trial on Thursday. [The
defendant] came here on Thursday. I spoke to him, and I told him that we—
there were three trials that were brought in. The only question was which
was going to go in which order. After that decision was made, I met with
[the defendant] in my office for a considerable period of time [and] told
him the case is starting jury selection today. [I] explained to him what the
jury selection process was. [I] made an appointment with [the defendant]
to meet with him and discuss his trial further on Monday afternoon, which,
later Thursday, he cancelled.’’
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‘‘[An appellate court] must distinguish between a substantial and timely request for new counsel pursued in
good faith, and one made for insufficient cause on the
eve or in the middle of trial. . . . In evaluating whether
the trial court abused its discretion in denying [the]
defendant’s motion for substitution of counsel, [an
appellate court] should consider the following factors:
[t]he timeliness of the motion; adequacy of the court’s
inquiry into the defendant’s complaint; and whether the
attorney/client conflict was so great that it had resulted
in total lack of communication preventing an adequate
defense.’’ (Citation omitted; internal quotation marks
omitted.) State v. Goode, 211 Conn. App. 465, 472–73,
272 A.3d 748, cert. denied,
343 Conn. 925,
275 A.3d
1212 (2022).
Here, when the defendant asked for substitute counsel in 2019, the court advised him that he could hire
private counsel, and he indicated that he would talk to
his family about doing so. In his 2019 letter to the court
asking that new counsel be appointed to represent him,
the defendant represented that ‘‘[t]ime is of the essence
. . . as my case is on the trial list with a possibility of
being called at any time . . . .’’ The defendant nevertheless did not attempt to retain new counsel until
almost three years later, after he posted bond to effect
his release from prison while awaiting trial. The court
afforded the defendant ample opportunity to argue for
new counsel and fully express his complaints regarding
Cizik’s representation of him, but at no time, either in
2019 or upon his renewal of his request for new counsel
in 2022, did the defendant assert a substantial complaint
regarding that representation. Indeed, the defendant
did not provide any complaint of Cizik’s representation
of him when he renewed his request on the day that
jury selection was scheduled to begin. We therefore
conclude that the trial court did not err in denying the
defendant’s request for additional time to retain private
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counsel. Accordingly, the defendant’s claim that his
constitutional right to counsel of his choice was violated fails.
The judgment is reversed only with respect to the
defendant’s conviction of being a persistent felony
offender and the case is remanded for resentencing on
the remaining convictions; the judgment is affirmed in
all other respects.
In this opinion the other judges concurred.
