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       GENE NEWLAND v. COMMISSIONER
              OF CORRECTION
                 (AC 35835)
                Sheldon, Keller and Harper, Js.
        Argued March 5—officially released June 24, 2014

  (Appeal from Superior Court, judicial district of
                Tolland, Cobb, J.)
   Michael J. Proto, assistant state’s attorney, with
whom, on the brief, was Patricia M. Froehlich, state’s
attorney, for the appellant (respondent).
  Grayson Colt Holmes, with whom were Stephen A.
Lebedevitch and, on the brief, James J. Ruane, James
O. Ruane and Stephanie M. O’Neil, for the appellee
(petitioner).
                         Opinion

   SHELDON, J. The respondent, the Commissioner of
Correction, appeals from the judgment of the habeas
court granting the amended petition for writ of habeas
corpus filed by the petitioner, Gene Newland, on the
ground that the petitioner had not knowingly, intelli-
gently, and voluntarily waived his constitutional right
to counsel in his criminal trial, at which he was con-
victed of sexual assault in the first degree in violation
of General Statutes § 53a-70 (a) (2), and risk of injury
to a child in violation of General Statutes § 53-21 (a)
(2). The petitioner was sentenced on these charges to
a term of ten years incarceration and eight years special
parole. On appeal, the respondent claims that: (1) the
petitioner’s claims were procedurally defaulted because
he did not raise them by way of direct appeal of his
conviction; (2) the habeas court improperly granted
the amended petition on a ground not claimed in that
petition, namely, that the public defender’s office had
erred in determining that the petitioner was not eligible
for its services; and (3) even if that ground was properly
before the court, the petitioner did not meet his burden
of proving that the determination of ineligibility by the
public defender’s office was erroneous. We affirm the
judgment of the habeas court.
   In its June 13, 2013 memorandum of decision granting
the amended petition for writ of habeas corpus, the
habeas court set forth the following relevant factual
and procedural history. ‘‘On or about May 17, 2007, the
petitioner was arrested and charged with sexual assault
in the first degree in violation of § 53a-70 (a) (2) and
risk of injury to a child in violation of § 53-21 (a) (2).
At his arraignment, the petitioner was represented by
the public defender for ‘bond only,’ and a bond of
$10,000 was imposed. The petitioner’s friend made the
bond payment for the petitioner, and he was released
pending trial. The case was transferred to part A [of
the Superior Court] and continued. On June 15, 2007,
without a public defender present in the courtroom,
the state reported that the public defender’s office
deemed the petitioner ineligible for its services. The
court continued the case to July 27, 2007, to allow the
petitioner to retain counsel. The public defender’s office
did not inform the petitioner that he had a right to
appeal its ineligibility decision to the court pursuant to
General Statutes § 51-297 (g). . . . Nor did the court
or the state inform the petitioner of this statutory right
on the record. The petitioner did not appeal the ineligi-
bility decision to the trial court.
   ‘‘The petitioner appeared [before the court multiple
times] over the next several months and received con-
tinuances for the purpose of hiring counsel. At his court
appearance on November 16, 2007, the petitioner
reported [to the court] that he was trying to refinance
his property in order to obtain counsel. The court
entered not guilty pleas and a jury election on the peti-
tioner’s behalf and continued the case.
   ‘‘On January 11, 2008, the state informed the trial
court that the petitioner would be representing himself.
The petitioner responded that he was still trying to hire
counsel but that he was working two jobs and could
not afford to hire an attorney. The petitioner reported
that he did not have the $2500 necessary for a minimum
retainer to pay private counsel to accept his case. In
response to the court’s inquiry as to whether he had
applied for a public defender, the petitioner explained
that his application had been denied because he owned
property. The court then continued the matter, but did
not inform the petitioner that he could appeal the public
defender’s decision. Nor did the state tell the petitioner
that he could appeal the ineligibility decision to the
trial court.
   ‘‘At the next several court appearances, the case was
continued for the parties to provide and receive discov-
ery. On June 2, 2008, the state again reported that the
petitioner would represent himself. In response to the
trial court’s question about his self-representation, the
petitioner explained: ‘I have no money to do otherwise.
If I had money, I would [hire counsel]. I’m trying to
come up [with] the money. It’s—I’m barely making ends
meet as it is right now. Believe me, if I could afford a
lawyer, I would. I was denied a public defender because
I own the property that my family lives in.’ The trial
court continued the matter.
  ‘‘On July 18, 2008, the petitioner again stated that he
needed time to hire counsel. The court continued the
matter to August 15, 2008, and gave the petitioner a
stern warning that he needed to retain counsel because
the case would be placed on the jury list.
  ‘‘On August 15, 2008, the state made a plea offer to
the petitioner, and the court gave him a month to decide
whether to accept or reject it. The petitioner rejected
the state’s offer on September 5, 2008, and the petitioner
reported that he was still trying to retain counsel.
   ‘‘On October 17, 2008, the state reported that the
petitioner still had not hired counsel. The court asked
the petitioner if he was close to hiring an attorney. The
petitioner reported that he had just lost one of his two
jobs and was nowhere close to hiring private counsel
despite his numerous attempts to do so and asked the
court if he could get some help to prepare his case for
trial. The court inquired about the petitioner’s financial
status, and the petitioner explained that he was deemed
ineligible for a public defender due to the fact that he
owned property, which was in foreclosure. The court
explained that the decision whether the petitioner was
eligible for public defender services is made by the
public defender’s office and suggested that the peti-
tioner reapply. The court did not inform the petitioner
that he could appeal the denial of services to the court.
Nor did the state explain this remedy. Standby counsel
was not appointed by the court.
  ‘‘On December 5, 2008, the state reported that the
petitioner was again deemed ineligible for the services
of the public defender. Again, no public defender
appeared in court with the petitioner to inform the court
of this decision. Again, no one informed the petitioner
that he could appeal the public defender’s ineligibility
determination to the trial court. The petitioner
explained that he had only one job, having lost one,
that his job paid only $8.35 per hour and that he had
no other available funds to hire counsel. The court
placed the case on the trial list for March, 2009.
   ‘‘On April 15, 2009, the parties appeared for jury selec-
tion. The trial court inquired of the petitioner as to the
status of his attempts to obtain counsel. The petitioner
reported that he had been trying to hire an attorney,
but still could not afford to hire one. He informed the
court that he had been denied public defender services
twice due to the fact that he owns property, which the
public defender’s office told him ‘automatically disquali-
fied’ him for services. The petitioner informed the court
that the property was encumbered by a mortgage and
was in foreclosure.
   ‘‘The trial court asked the petitioner: ‘So implicit in
what you’re telling me is you’re waiving your right to
have counsel represent you.’ To which the petitioner
responded: ‘At present, yes. Unfortunately, I have no
other choice.’ The court then proceeded to question
the petitioner concerning what the court deemed his
‘implicit’ waiver. In response to these questions, the
petitioner stated that he had a tenth grade education,
worked at a gas station/market making $300 to $350
per week, no longer lived in his property, where his
family was residing, and that he could not provide for
his family since he lost one of his two jobs. He also
stated that he had no other family resources.
   ‘‘When asked if he believed if he had the kind of
training and skill to represent himself on the charges
at trial, the petitioner stated: ‘Honestly, no, I don’t feel
I possess that training. I didn’t go to school for it, Your
Honor, so unfortunately, I don’t. But I’m at the point
where I have no other choice.’ The petitioner stated
that he understood that the case had been pending for
twenty-three months and that it was not going away
and ‘had to be tried sometime.’ He also admitted that
he had been provided a reasonable amount of time to
retain counsel. In terms of what he did to obtain coun-
sel, he explained that he went to legal aid and to col-
leges, and called numerous lawyers, but as soon as he
mentioned the charges they would ‘hang up on [him].’
He admitted that he had no training or skill to try the
case and again stated that he ‘[had] no choice’ but to
proceed without counsel.
   ‘‘The court found that the petitioner ‘waived his right
to be represented by counsel’ and explained: ‘I’m disap-
pointed that the court is asked to make this finding,
but I don’t see any alternative. The matter has been on
the jury list, it’s come up 20 times, and it’s been contin-
ued 19 times. We have a jury here this morning, and
[it’s] ready to hear the case.’ No standby counsel was
appointed.
   ‘‘On May 14, 2009, after a jury trial, the petitioner
was convicted on both charges. At the petitioner’s sen-
tencing, on August 7, 2009, he remained unrepresented.
In his comments to the court, the petitioner argued that
he had been ‘wrongfully denied counsel’ and that he
believed that he ‘could have won this case if [he] would
have had a counsel.’ The court then sentenced the peti-
tioner to a total effective sentence of ten years incarcer-
ation followed by eight years of special parole. The
court told the petitioner that he had the right to appeal
his conviction which needed to be filed within twenty
days. No appeal was filed by the petitioner.
   ‘‘The evidence produced at the habeas trial revealed
that between 2007 and 2009, the petitioner had two,
and later one, minimum wage job. At the time of his
trial, he had only one job and was making $300 to
$350 per week. He had no available funds in any bank
accounts. He owned a residential property located at
44 Putnam Pike, Dayville, Connecticut. That property
was subject to a mortgage in the amount of approxi-
mately $117,000, and prior to his 2007 arrest had a fair
market value of $168,000. As of July 22, 2008, and during
the petitioner’s criminal trial, the petitioner’s property
was subject to a foreclosure action, based on the failure
of the petitioner to make payments on his mortgage.
That foreclosure action was pending in the Judicial
District of Windham at Putnam and captioned Citi-
Bank, N.A., as Trustee for the Benefit of the Certificate
Holders of CWABs, Inc., and Asset–Backed Certificates
Series 2007–QHI v. Gene P. Newland, Jr.
   ‘‘Public Defender Raymond Canning of the Danielson
public defender’s office had no recollection of the peti-
tioner’s case and no records of the petitioner’s applica-
tions or financial affidavits. Attorney Canning testified
as to the general practices of his office regarding its
eligibility determinations for public defender services
in 2007 to 2009, which were made pursuant to the Divi-
sion of Public Defender Services [income eligibility]
guidelines. According to Attorney Canning, although
owning property does not automatically disqualify a
defendant from obtaining services, the relevant issue
is the amount of equity in the property.
  ‘‘Attorney Canning stated that if the office finds a
defendant ineligible for services, the defendant should
be advised that he or she can appeal that decision to
the trial court. The court finds that the petitioner in
this case was not advised of his right to appeal the
public defender’s ineligibility determination by the pub-
lic defender’s office or anyone else. The record reveals
that such advice was not provided to the petitioner on
the record, and the petitioner testified credibly that the
public defender did not inform him of his right to appeal.
In addition, Attorney Canning had no recollection of
this case or this petitioner, and his office had no records
of the petitioner’s applications in this matter. Moreover,
except for his arraignment, no public defender ever
appeared in court with the petitioner to report the peti-
tioner’s ineligibility for services, contrary to the policy
of the Chief Public Defender’s office that they do so.
   ‘‘Attorney Brian Carlow, the deputy chief public
defender for the Division of Public Defender Services,
testified credibly about the statewide process for
appointing public defenders and the eligibility guide-
lines in 2007 through 2009. In addition to holding this
position for six years, Attorney Carlow had previously
been a public defender for approximately twenty years
in various jurisdictions in Connecticut. One of his
responsibilities as the deputy chief public defender is
to determine eligibility disputes raised by the state or
prospective clients or to answer questions from public
defender offices concerning eligibility determinations.
All of the regional public defender offices report to the
chief public defender, and there is no jurisdictional
autonomy of individual jurisdictions, generally or per-
taining to eligibility matters.
   ‘‘If a defendant indicates that he wishes to have a
public defender appointed, the defendant is required to
fill out a financial affidavit, which includes inquiries
regarding cash on hand and in the bank, and whether
the defendant owns real estate, and whether there is a
mortgage on the property as well as its present value.
The applications are retained as part of the defendant’s
file but are considered confidential unless there is an
appeal to the trial court of a denial of eligibility. In
such circumstances, the application is provided to the
trial court.
  ‘‘In determining whether a defendant is eligible for
public defender services, the nature of the crime and the
cost to hire private counsel in that jurisdiction should be
taken into account. The more serious and complex the
charges, the more costly it would be to retain private
counsel. If the defendant meets the income eligibility
requirements, there is a presumption that he or she
would be eligible for services. If the defendant fails to
meet those income [eligibility] guidelines, there is a
presumption that he or she is ineligible for services.
These presumptions are, however, rebuttable.
  ‘‘Applying the income [eligibility] guidelines to this
case, which Attorney Carlow stated would be consid-
ered a serious and complex case given the charges, and
based on the petitioner’s income, the petitioner would
have easily met the income eligibility guidelines and
therefore, have been presumed eligible for services.
   ‘‘As to how owning real estate factored into a defen-
dant’s eligibility for services, Attorney Carlow testified
that merely owning real property does not result in an
automatic disqualification for services. The key issue
with respect to the ownership of real property is
whether there is ‘readily available’ equity in the prop-
erty. Whether a defendant had equity in real estate was
less of a factor in 2007 through 2009 than it was in the
1980s and 1990s when the real estate market was strong
and equity in property was readily accessible. In 2007
through 2009, however, having equity in real estate was
less of a factor for eligibility determinations because
that equity was not deemed readily accessible to defen-
dants. Thus, Attorney Carlow testified that having
$50,000 to $60,000 in equity in 2008 and 2009 should
not have been a significant factor in an eligibility deter-
mination. In addition, Attorney Carlow stated that if
the property had some remaining equity but was subject
to a pending foreclosure action, any such equity would
not be considered ‘readily accessible’ and thus, would
be unlikely to be considered in determining eligibility
for services. Defendants are not required to await the
conclusion of a foreclosure action before becoming
eligible for services.
  ‘‘The public defenders inform the court whether the
defendant is eligible for services, but the court decides
whether to appoint counsel. Public defenders are
obliged to inform defendants of their right to appeal
an ineligibility decision to the court. Public defenders
should always be in court with the defendants when
reporting on their eligibility for services.
   ‘‘Based on the testimony produced at the habeas trial
. . . the petitioner had easily met the public defender’s
income eligibility requirements for a serious felony
charge and was, therefore, presumed eligible for ser-
vices. The Danielson public defender’s office erred in
denying the petitioner’s application based on the fact
that he owned property because the equity was limited
and not readily accessible and the property was encum-
bered by an ongoing foreclosure action. Thus, the real
property did not provide the defendant with any readily
accessible funds to hire private counsel.’’
   The habeas court concluded that ‘‘the petitioner did
not knowingly, intelligently, and voluntarily waive his
right to counsel because he mistakenly believed that
he did not qualify for the public defender’s services
and only acquiesced to representing himself because
he could not afford or otherwise retain private counsel.
Had the petitioner been properly informed of his right
to the services of a public defender, he would have
accepted those services. Thus, but for the public defend-
er’s erroneous eligibility determination, the petitioner
would not have ‘implicitly’ or otherwise waived his right
to counsel, and the trial court would not have accepted
the ‘implicit’ waiver had it known of the petitioner’s eli-
gibility.’’
  On those bases, the habeas court granted the petition
for a writ of habeas corpus, and vacated the petitioner’s
conviction. The habeas court thereafter granted the
respondent’s petition for certification to appeal, and
this appeal followed.
  ‘‘A defendant has knowingly and intelligently waived
the right to counsel if the trial judge finds that he (1)
[h]as been clearly advised of the right to the assistance
of counsel, including the right to the assignment of
counsel when so entitled; (2) [p]ossesses the intelli-
gence and capacity to appreciate the consequences of
the decision to represent oneself; (3) [c]omprehends
the nature of the charges and proceedings, the range
of permissible punishments, and any additional facts
essential to a broad understanding of the case; and (4)
[h]as been made aware of the dangers and disadvan-
tages of self-representation. . . .
   ‘‘[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, expe-
rience, and conduct of the accused. . . . This
important decision rests within the discretion of the
trial judge. . . . Our task, therefore, is to determine
whether the court abused its discretion in allowing the
defendant to discharge his counsel and to represent
himself.’’ (Internal quotation marks omitted.) State v.
Gaston, 86 Conn. App. 218, 232, 860 A.2d 1253 (2004),
cert. denied, 273 Conn. 901, 867 A.2d 840 (2005).
   ‘‘The habeas court is afforded broad discretion in
making its factual findings, and those findings will not
be disturbed unless they are clearly erroneous. . . .
Historical facts constitute a recital of external events
and the credibility of their narrators. . . . Accordingly,
[t]he habeas judge, as the trier of facts, is the sole arbiter
of the credibility of witnesses and the weight to be
given to their testimony. . . . The application of the
habeas court’s factual findings to the pertinent legal
standard, however, presents a mixed question of law
and fact, which is subject to plenary review.’’ (Citations
omitted; internal quotation marks omitted.) Gaines v.
Commissioner of Correction, 306 Conn. 664, 677, 51
A.3d 948 (2012). With those principles in mind, we turn
to the respondent’s claims on appeal.
                              I
  We begin with the respondent’s claim that the habeas
court incorrectly determined that the petitioner’s claims
were not procedurally defaulted. The respondent claims
that the petitioner’s claims were procedurally defaulted
because they were not raised on direct appeal of his
conviction and the petitioner failed to prove that said
default was excused by cause and prejudice.1 We are
not persuaded.
   In his return to the petitioner’s amended petition, the
respondent alleged that the petitioner’s claims were
procedurally defaulted. He thereafter moved for sum-
mary judgment on that basis. The habeas court con-
cluded that the petitioner’s claims were not
procedurally defaulted and, thus, denied the respon-
dent’s motion for summary judgment. A court’s denial
of a motion for summary judgment and a determination
of procedural default involve questions of law over
which our review is plenary. Johnson v. Commissioner
of Correction, 285 Conn. 556, 566, 941 A.2d 248 (2008).
   ‘‘In discussing the principles that govern review of a
respondent’s affirmative defense that a habeas claim
is procedurally defaulted . . . as a general rule, [t]he
appropriate standard for reviewability of habeas claims
that were not properly raised at trial . . . or on direct
appeal . . . because of a procedural default is the
cause and prejudice standard. Under this standard, the
petitioner must demonstrate good cause for his failure
to raise a claim at trial or on direct appeal and actual
prejudice resulting from the impropriety claimed in the
habeas petition. . . . [T]he cause and prejudice test is
designed to prevent full review of issues in habeas cor-
pus proceedings that counsel did not raise at trial or
on appeal for reasons of tactics, inadvertence or igno-
rance. . . . [T]he existence of cause for a procedural
default must ordinarily turn on whether the [petitioner]
can show that some objective factor external to the
defense impeded counsel’s efforts to comply with the
[s]tate’s procedural rule. . . . [For example] a showing
that the factual or legal basis for a claim was not reason-
ably available to counsel . . . or . . . some interfer-
ence by officials . . . would constitute cause under
this standard.’’ (Citations omitted; emphasis in original;
internal quotation marks omitted.) Id., 567–68.
   ‘‘When a respondent seeks to raise an affirmative
defense of procedural default, the rules of practice
require that he or she must file a return to the habeas
petition ‘alleg[ing] any facts in support of any claim of
procedural default . . . or any other claim that the
petitioner is not entitled to relief.’ Practice Book § 23-
30 (b). ‘If the return alleges any defense or claim that
the petitioner is not entitled to relief, and such allega-
tions are not put in dispute by the petition, the petitioner
shall file a reply.’ Practice Book § 23-31 (a). ‘The reply
shall allege any facts and assert any cause and prejudice
claimed to permit review of any issue despite any
claimed procedural default.’ Practice Book § 23-31 (c).’’
Johnson v. Commissioner of Correction, supra, 285
Conn. 567.
  Here, in his reply to the respondent’s return alleging
procedural default, the petitioner pleaded that ‘‘[a]ny
prejudice is presumed because the petitioner’s right to
counsel was violated and the petitioner’s lack of counsel
is sufficient cause to excuse any default for failing to
directly appeal. See Dennis v. Commissioner of Correc-
tion, 134 Conn. App. 520, 528, [536, 39 A.3d 799] (2012).’’
The habeas court agreed, as do we.
   In Dennis, this court, citing to federal precedent, held
that the ‘‘[v]iolation of the right to counsel is an external
error’’ that satisfies the burden of demonstrating cause;
id, 532; and that ‘‘actual prejudice is presumed when
the petitioner’s right to counsel is violated.’’ Id., 536.
Because, as we will discuss in further detail herein, we
conclude that the petitioner’s right to counsel was, in
fact, violated, we agree with the habeas court that cause
and prejudice are presumed.
   The respondent contends that Dennis does not
relieve the petitioner in this case of his burden of show-
ing cause and prejudice. In so arguing, the respondent
attempts to distinguish Dennis from this case on the
ground that the trial court in Dennis had not canvassed
the petitioner at all regarding a waiver of his right to
counsel and, in fact, never made a finding of waiver,
whereas here the trial court did canvass the petitioner,
arguably inadequately, and allegedly made an improper
finding of implicit waiver. In other words, the respon-
dent argues, because the trial court did canvass the
petitioner and did make a finding of implicit waiver,
his burden of proving cause and prejudice must be
greater than in those situations, like in Dennis, in which
there was no canvass at all. Although that factual dis-
tinction might make a difference in some contexts, we
conclude that it does not make a difference here
because the constitutional deprivation is the same: the
denial of the constitutional right to counsel.
   Here, the habeas court found that the petitioner
repeatedly told the trial court that he did not want to
represent himself and that he wanted to be represented
by counsel, but he could not afford to hire private coun-
sel, and the public defender’s office twice had deter-
mined that he was ineligible for its services. The habeas
court further found that the public defender’s finding
of ineligibility on the basis of the petitioner’s ownership
of real property was erroneous because any equity held
by the petitioner in that property was not readily avail-
able to the petitioner to provide funds for the retention
of private counsel. The habeas court found that the
petitioner attempted to demonstrate his indigence on
numerous occasions, but that he was not advised, by
the court or the public defender’s office, of his statutory
right to appeal to the trial court from the public defend-
er’s determination of ineligibility. See General Statutes
§ 51-297 (g).2 The habeas court concluded that had the
petitioner been properly advised of his right to the ser-
vices of a public defender, either by way of a proper
determination of eligibility versus a determination
based solely upon the ownership of property, or by
being advised that he had the statutory right to chal-
lenge that determination to the trial court, he would
not have ‘‘implicitly’’ or otherwise waived his right to
counsel, and, had a proper determination of eligibility
been performed, the court would not have made such
a finding. In light of those findings, which are supported
by the record and are therefore not clearly erroneous,
the habeas court properly concluded that the petitioner
did not knowingly, intelligently, or voluntarily waive
his right to counsel. The habeas court thus did not err
in determining that the petitioner’s constitutional right
to counsel was violated and that his claims were not
procedurally defaulted.
                            II
   The respondent next argues that the habeas court
erred in granting the amended petition for a writ of
habeas corpus on a basis that was not claimed therein.
Specifically, he claims that because the amended peti-
tion does not set forth a claim of error on the part of the
public defender’s office in determining the petitioner’s
ineligibility for services, the habeas court improperly
granted the petition on that ground. The habeas court
disagreed, explaining that the propriety of the ineligibil-
ity determination went directly to the petitioner’s claim
that he did not knowingly and intelligently waive his
right to counsel. We agree with the habeas court.
   ‘‘It is well settled that [t]he petition for a writ of
habeas corpus is essentially a pleading and, as such, it
should conform generally to a complaint in a civil
action. . . . The principle that a plaintiff may rely only
upon what he has alleged is basic. . . . It is fundamen-
tal in our law that the right of a plaintiff to recover is
limited to the allegations of his complaint. . . . While
the habeas court has considerable discretion to frame
a remedy that is commensurate with the scope of the
established constitutional violations . . . it does not
have the discretion to look beyond the pleadings and
trial evidence to decide claims not raised. . . . The
purpose of the [petition] is to put the [respondent] on
notice of the claims made, to limit the issues to be
decided, and to prevent surprise. . . . Moreover, [t]he
modern trend, which is followed in Connecticut, is to
construe pleadings broadly and realistically, rather than
narrowly and technically. . . . [T]he [petition] must be
read in its entirety in such a way as to give effect to
the pleading with reference to the general theory upon
which it proceeded, and do substantial justice between
the parties. . . . Our reading of pleadings in a manner
that advances substantial justice means that a pleading
must be construed reasonably, to contain all that it
fairly means, but carries with it the related proposition
that it must not be contorted in such a way so as to
strain the bounds of rational comprehension.’’ (Citation
omitted; internal quotation marks omitted.) Lebron v.
Commissioner of Correction, 274 Conn. 507, 519–20,
876 A.2d 1178 (2005).
   The petitioner pleaded in his amended petition that
he had twice applied for public defender services and
had twice been denied those services. Although the
petitioner did not specifically allege an impropriety with
the public defender’s threshold ineligibility determina-
tion in his amended petition, that determination neces-
sarily went to his knowledge regarding his right to
counsel. His case was continued numerous times by
the trial court to afford him the opportunity to retain
counsel. He repeatedly informed the court that, despite
his best efforts, he was unable hire an attorney because
he did not have the financial means to do so. He repeat-
edly represented to the court that he wanted to be
represented by counsel. After several continuances, the
court determined that the petitioner had implicitly
waived his right to counsel and that he had done so
knowingly, intelligently, and voluntarily because he had
been denied the services of a public defender but had
failed to retain private counsel. Given the petitioner’s
repeated expressions of his desire to be represented
by counsel, and his representations that he could not
afford to hire private counsel although he had been
deemed ineligible for a public defender, the respondent
cannot reasonably claim surprise on the basis that the
propriety of the ineligibility determination was at issue
in challenging the court’s finding of waiver of his right
to counsel. We thus agree with the habeas court that
the issues of whether the public defender’s office erro-
neously determined that the petitioner was ineligible
for services and whether the petitioner was informed
of his right to appeal from the ineligibility determination
went to the knowing and voluntary nature of the alleged
waiver of the right to counsel and were thus properly
before the habeas court.
                            III
  Because we conclude that the propriety of the public
defender’s determination of ineligibility was reasonably
related to the petitioner’s claim that he did not know-
ingly, intelligently, and voluntarily waive his right to
counsel, and was thus properly considered by the
habeas court, we reach the respondent’s final claim that
the petitioner failed to prove that the public defender’s
office erroneously determined that the petitioner was
not indigent and consequently ineligible for its services.
   Although ‘‘[i]t is the duty of the state to provide ade-
quate means to assure that no indigent accused lacks
full opportunity for his defense . . . [d]efendants seek-
ing such assistance must satisfy the court as to their
indigency . . . .’’ (Citation omitted; internal quotation
marks omitted.) State v. Martinez, 295 Conn. 758, 782,
991 A.2d 1086 (2010). An assessment of whether a party
is indigent and thus eligible for state funded legal assis-
tance is a factual determination that is subject to a
clearly erroneous standard of review. Id. ‘‘A finding of
fact is clearly erroneous when there is no evidence in
the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed.’’ (Internal quo-
tation marks omitted.) Id.
   To be sure, the absence of the applications that were
made to the public defender’s office in 2007 is problem-
atic to the petitioner’s claim that the public defender’s
office erred in denying those applications. The peti-
tioner, however, presented evidence as to his financial
circumstances at the time that he applied for public
defender services. The petitioner also testified that his
applications were denied on the basis of his ownership
of real property, which, at that time, was being fore-
closed upon. The habeas court credited the petitioner’s
testimony, as well as that of Carlow, the deputy chief
public defender, who testified that the ownership of
property is not, in itself, a determinative factor in
assessing eligibility, but, rather, that the proper consid-
eration is whether any equity in that property is readily
accessible for use in the retention of counsel. Carlow
concluded, on the basis of the evidence presented, that
the petitioner met the income eligibility guidelines to
qualify for representation. On those bases, we conclude
that the habeas court properly found that the petitioner
had met his burden of proving that the determination
of ineligibility by the public defender’s office was
clearly erroneous.
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
     In his return to the petitioner’s amended petition, the respondent alleged
that the petitioner’s claims were procedurally defaulted because he failed
to raise them by way of direct appeal from his criminal conviction, but he
also mentioned the petitioner’s failure to appeal to the trial court from the
public defender’s determination of ineligibility. In his motion for summary
judgment, the respondent also appeared to claim that the petitioner is proce-
durally defaulted for his failure to assert his claims either to the trial court
or in a direct appeal. In addressing the respondent’s claim of procedural
default, the habeas court focused on the petitioner’s failure to appeal to the
trial court from the public defender’s determination of ineligibility. In his
brief to this court, the respondent again argues that the petitioner’s claims
were procedurally defaulted because the petitioner did not pursue them on
direct appeal. Under the circumstances of this case, because our resolution
of the respondent’s claim of procedural default is based upon the petitioner’s
claim of a violation of his right to counsel and whether cause and prejudice
are presumed in the presence of such a violation, the procedural mechanism
by which the petitioner perhaps should have raised his claims is immaterial.
   2
     General Statutes § 51-297 (g) provides: ‘‘If the Chief Public Defender or
anyone serving under the Chief Public Defender determines that an individ-
ual is not eligible to receive the services of a public defender under this
chapter, the individual may appeal the decision to the court before which
the individual’s case is pending.’’
