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Clark v. Commissioner of Correction
HERBERT A. CLARK v. COMMISSIONER
OF CORRECTION
(AC 46316)
Moll, Clark and Wilson, Js.
Syllabus
The petitioner, who previously had been convicted of assault in the first
degree, appealed, on the granting of certification, from the habeas court’s
judgment denying his petition for a writ of habeas corpus. The petitioner,
whose trial counsel had been permitted by the trial court to withdraw upon
an oral motion made during a hearing at which the petitioner failed to
appear, claimed, inter alia, that the habeas court erred in determining that
the proceeding during which his counsel had withdrawn was not a critical
stage of the prosecution and, thus, despite his absence, his rights to due
process had not been violated. Held:
The habeas court properly determined that the proceeding during which
the trial court granted the motion to withdraw by the petitioner’s criminal
trial counsel was not a critical stage of the petitioner’s prosecution, as,
although the proceeding had originally been scheduled to address a pending
plea offer from the state, the petitioner’s failure to appear at the hearing
changed the nature of the hearing, and the proceeding had no effect on the
petitioner’s ability to later accept or reject a plea offer from the state.
Argued March 19—officially released October 7, 2025
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, M. Murphy, J.; judgment
denying the petition, from which the petitioner, on the
granting 	of 	certification, 	appealed 	to 	this 	court.
Affirmed.
Justine F. Miller, assigned counsel, for the appellant
(petitioner).
Raynald A. Carre, deputy assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Erin Stack, assistant state’s attorney, for
the appellee (respondent).

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Clark v. Commissioner of Correction
Opinion
MOLL, J. The petitioner, Herbert A. Clark, appeals,
following the granting of his petition for certification
to appeal, from the judgment of the habeas court deny-
ing his second amended petition for a writ of habeas
corpus. On appeal, the petitioner principally claims that
the habeas court erred in concluding that the June 2,
2009 proceeding in his criminal matter, during which
the trial court allowed his trial counsel to withdraw
from representing him upon an oral motion made while
the petitioner was not present, was not a critical stage
of his prosecution, and, therefore, his due process rights
were not violated.1 We affirm the judgment of the
habeas court.
The following undisputed facts, as found by the
habeas court or as gleaned from the record, and proce-
dural history are relevant to our resolution of this
appeal.2 On January 20, 2009, the petitioner was arrested
and charged with assault in the first degree in violation
of General Statutes § 53a-59 (a) (1) 3 and assault in the
1 The petitioner also claims that the habeas court erred in purportedly
concluding that his absence from the June 2, 2009 proceeding did not give
rise to structural error warranting reversal of his conviction. We decline to
review this claim because it was not raised in the operative habeas petition
or, contrary to the petitioner’s representation, decided by the habeas court.
See VanDeusen v. Commissioner of Correction, 212 Conn. App. 427, 452,
275 A.3d 215 (‘‘[a] reviewing court will not consider claims not raised in
the habeas petition or decided by the habeas court’’ (internal quotation
marks omitted)), cert. denied, 345 Conn. 903, 282 A.3d 982 (2022).
2 We confine our summary of the facts to those necessary to provide
context for the issues presented in this appeal. For a full recitation of the
facts that the jury reasonably could have found in connection with the
petitioner’s underlying conviction, see State v. Clark, 137 Conn. App. 203,
204–206, 48 A.3d 135 (2012), aff’d, 314 Conn. 511, 103 A.3d 507 (2014).
3 General Statutes § 53a-59 (a) (1) provides in relevant part: ‘‘A person is
guilty of assault in the first degree when . . . [w]ith intent to cause serious
physical injury to another person, he causes such injury to such person or
to a third person by means of a deadly weapon or a dangerous instru-
ment . . . .’’

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Clark v. Commissioner of Correction
first degree in violation of § 53a-59 (a) (2).4 State v.
Clark, 137 Conn. App. 203, 205–206, 48 A.3d 135 (2012),
aff’d, 314 Conn. 511, 103 A.3d 507 (2014). At his January
21, 2009 arraignment, while represented by Attorney
Todd Edgington, a public defender, the petitioner
informed the trial court that he did not want the services
of a public defender, and he subsequently hired private
counsel, Attorney Richard Lawlor.
On April 29, 2009, the state and the petitioner, repre-
sented by Attorney Lawlor, appeared for a pretrial hear-
ing. During the hearing, the trial court, Alexander, J.,
noted that the state had made a plea offer and told
the petitioner that, ‘‘[i]f you want to take it, [Attorney]
Lawlor will explain it to you.’’ That same day, a so-
called ‘‘accept or reject’’ date was scheduled for June
2, 2009.
On June 2, 2009, Attorney Lawlor appeared before
the trial court, Alexander, J. The petitioner, who was
out on bond at the time, did not appear when his case
was called. Attorney Lawlor made an oral request to
withdraw as the petitioner’s counsel, stating that the
petitioner had not appeared at the courthouse that day
and that, despite his repeated efforts, he had not been
able to get in touch with the petitioner since his court
appearance on April 29, 2009. The court granted from
the bench Attorney Lawlor’s oral request to withdraw
‘‘based on the breakdown of the attorney/client relation-
ship.’’ Later that day, the petitioner arrived at the court-
house and the court informed him of Attorney Lawlor’s
withdrawal and that, by his next court date of July 1,
2009, he needed either to talk to Attorney Lawlor or to
4 General Statutes § 53a-59 (a) (2) provides in relevant part: ‘‘A person is
guilty of assault in the first degree when . . . with intent to disfigure another
person seriously and permanently, or to destroy, amputate or disable perma-
nently a member or organ of his body, he causes such injury to such person
or to a third person . . . .’’

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Clark v. Commissioner of Correction
retain a new attorney. There was no discussion of the
plea offer during the foregoing June 2, 2009 hearings.
Thereafter, the petitioner was given several court
dates by which to return to court with a new attorney
or to renew his relationship with Attorney Lawlor. The
petitioner failed to do so, and Attorney Edgington sub-
sequently was reappointed to represent the petitioner.
The habeas court found that a plea offer was available
to the petitioner while Attorney Edgington represented
him and that Attorney Edgington advised him to accept
it, but on December 7, 2009, the petitioner chose to
reject the offer and proceed to trial. See footnote 8 of
this opinion.
Following a jury trial, the petitioner was convicted
of assault in the first degree in violation of § 53a-59 (a)
(1). State v. Clark, supra, 137 Conn. App. 206. The trial
court, Espinosa, J., sentenced the petitioner to twenty
years of incarceration and issued a standing criminal
restraining order (as formerly named). Id. The peti-
tioner appealed from the judgment of conviction; this
court reversed the judgment only as to the issuance of
the restraining order and affirmed the judgment in all
other respects. Id., 215. Our Supreme Court affirmed
the judgment of this court. State v. Clark, 314 Conn.
511, 513, 103 A.3d 507 (2014).
Thereafter, on July 21, 2015, the petitioner com-
menced the present habeas action. In his June 9, 2022
second amended habeas petition (operative habeas
petition), the petitioner asserted three claims. In counts
one and two, he alleged that his trial counsel, Attorney
Edgington, rendered ineffective assistance during his
plea negotiations and criminal trial. In count three,
which is the subject of this appeal, the petitioner
claimed that his ‘‘constitutional rights to due process
and confrontation, as protected by the fifth, sixth, and

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Clark v. Commissioner of Correction
fourteenth amendments to the United States constitu-
tion, and article first, §§ 8 and 9, of the Connecticut
constitution were violated’’ in his underlying criminal
case. In support of this claim, the petitioner alleged,
inter alia, that (1) ‘‘[o]n June 2, 2009, during a pretrial
hearing, the trial court granted Attorney Lawlor’s oral
request to withdraw from representing the petitioner,’’
(2) ‘‘[t]he petitioner was not present prior to or at the
time that the trial court granted Attorney Lawlor’s oral
request to withdraw from representing the petitioner,’’
and (3) ‘‘[t]he petitioner received no prior notice of
Attorney Lawlor’s intent or request to withdraw.’’ The
petitioner argued that the court’s granting of Attorney
Lawlor’s request to withdraw without him present con-
stituted a violation of his constitutional rights because
he ‘‘has a constitutional right to be present at all critical
stages of his prosecution, including during any inquiries
or hearings regarding defense counsel’s desire to with-
draw his appearance and cease representing the peti-
tioner.’’
On June 7, 2022, the respondent, the Commissioner
of Correction, filed a return either denying or leaving
the petitioner to his proof as to the material allegations
of his operative habeas petition. Additionally, as to
count three, the respondent asserted procedural default
and failure to state a claim as special defenses. That
same day, the petitioner filed a reply rejecting the
respondent’s special defenses.
The matter was tried to the habeas court, M. Murphy,
J., on June 8 and July 19, 2022. Several exhibits were
admitted and the court heard testimony from several
witnesses: Attorney Edgington; Attorney Lawlor; Attor-
ney Brett Salafia; Dr. Edward McDonough, a retired
forensic pathologist and medical examiner; Attorney
Brian Carlow; and the petitioner.5 The respondent and
the petitioner subsequently filed posttrial briefs.
5 Attorney Salafia represented the state in some of the proceedings for
the underlying criminal case, including pretrial proceedings and the criminal

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Clark v. Commissioner of Correction
On January 19, 2023, the court issued a memorandum
of decision denying the operative habeas petition.6 In
rejecting counts one and two, the petitioner’s ineffec-
tive assistance of counsel claims, the court concluded
that the petitioner had failed to sustain his burden of
establishing either deficient performance or prejudice. 7
With respect to the petitioner’s third claim regarding
his right to be present at all critical stages of a criminal
proceeding, the court stated: ‘‘This court finds that the
hearing at which Attorney Lawlor was permitted to
withdraw as counsel did not constitute a critical stage
in the petitioner’s prosecution for purposes of a consti-
tutional violation. The fairness of the hearing was not
thwarted by the petitioner’s absence and the petitioner’s
absence did not have a reasonably substantial relation
to the fullness of his opportunity to defend himself
trial. Dr. McDonough and Attorney Carlow testified at the habeas trial as
expert witnesses, and neither witness had any involvement in the petitioner’s
underlying criminal case.
6 Prior to trial, on June 7, 2022, the respondent moved to dismiss the third
count of the operative habeas petition on the grounds of (1) failure to state
a claim upon which relief could be granted and (2) procedural default. On
that same day, the petitioner filed an opposition to the respondent’s motion
to dismiss. On June 8, 2022, immediately prior to commencing trial, the
court heard argument from both parties on the respondent’s motion to
dismiss and reserved its judgment.
In its January 19, 2023 memorandum of decision, the court denied the
respondent’s motion to dismiss before addressing the merits of the operative
habeas petition. Specifically, the court determined that, ‘‘in taking the peti-
tioner’s allegations as true and interpreting the claim in the light most
favorable to the petitioner, the petitioner has alleged a claim upon which
relief can be granted.’’ In denying the motion, the court did not address the
respondent’s arguments regarding procedural default.
7 ‘‘In Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984)], the United States Supreme Court established that for a
petitioner to prevail on a claim of ineffective assistance of counsel, he must
show that counsel’s assistance was so defective as to require reversal of
[the underlying] conviction . . . . That requires the petitioner to show (1)
that counsel’s performance was deficient and (2) that the deficient perfor-
mance prejudiced the defense.’’ (Internal quotation marks omitted.) Cun-
ningham v. Commissioner of Correction, 195 Conn. App. 63, 66, 223 A.3d
85 (2019), cert. denied, 334 Conn. 920, 222 A.3d 514 (2020).

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Clark v. Commissioner of Correction
against prosecution on the assault charges. The peti-
tioner was promptly notified by the court of Attorney
Lawlor’s withdrawal and was given ample opportunity
to find substitute counsel. When the petitioner failed
to do so, the court assigned counsel [Attorney Edging-
ton] to represent him. As a result, [count three] must be
denied.’’ Thereafter, the court granted the petitioner’s
petition for certification to appeal, and this appeal fol-
lowed. 8
The petitioner claims that the habeas court erred in
concluding that (1) the June 2, 2009 proceeding in the
underlying criminal matter, during which the trial court
allowed Attorney Lawlor to withdraw from representing
him upon an oral motion, was not a critical stage of
his prosecution and (2) his due process rights under the
fifth, sixth, and fourteenth amendments to the United
States constitution, and article first, §§ 8 and 9, of the
Connecticut constitution were not therefore violated. 9
This claim fails.
Because the petitioner challenges the habeas court’s
conclusion, which was premised on factual findings,
8 As relief, the petitioner seeks to have the plea offer, the terms of which
provided that he would plead guilty to assault in the second degree in
exchange for three years of incarceration followed by two years of special
parole, restored. The petitioner does not argue that a better plea offer was
available to him when Attorney Lawlor represented him and, in fact, during
oral argument before this court, the petitioner’s counsel represented that
the plea offer that was available while Attorney Edgington represented the
petitioner was the same plea offer that was extended to him prior to Attorney
Lawlor’s withdrawal, and this assertion went unrebutted.
9 To the extent that the petitioner also claims on appeal that the trial
court, Alexander, J., erred in allowing Attorney Lawlor’s withdrawal on the
ground that he did not follow the requirements of Practice Book §§ 3-9 and
3-10, we decline to review this claim because it was not raised in the
operative habeas petition or decided by the habeas court. See VanDeusen
v. Commissioner of Correction, 212 Conn. App. 427, 452, 275 A.3d 215 (‘‘[a]
reviewing court will not consider claims not raised in the habeas petition
or decided by the habeas court’’ (internal quotation marks omitted)), cert.
denied, 345 Conn. 903, 282 A.3d 982 (2022).

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Clark v. Commissioner of Correction
‘‘we first apply the clearly erroneous standard of review
to [those] finding[s]. The habeas court is afforded broad
discretion in making its factual findings, and those find-
ings will not be disturbed [on appeal] unless they are
clearly erroneous. . . . Thus, [t]his court does not
retry the case or evaluate the credibility of the wit-
nesses. . . . Rather, we must defer to the [trier of
fact’s] assessment of the credibility of the witnesses
based on its firsthand observation of their conduct,
demeanor and attitude. . . . The 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.
. . . Thus, the court’s factual findings are entitled to
great weight. . . . Furthermore, [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 conviction
that a mistake has been committed.’’ (Footnote omitted;
internal quotation marks omitted.) Collins v. Commis-
sioner of Correction, 202 Conn. App. 789, 812, 246 A.3d
1047, cert. denied, 336 Conn. 931, 248 A.3d 1 (2021).
Here, to the extent that the petitioner challenges the
court’s findings to support its conclusion that the hear-
ing at which Attorney Lawlor was permitted to with-
draw as counsel did not constitute a critical stage in the
petitioner’s prosecution for purposes of a constitutional
violation, we conclude that such findings were not
clearly erroneous because there was evidence in the
record to support them.
‘‘Whether the [petitioner’s] constitutional rights were
violated by his exclusion from the hearing presents a
question of law and, accordingly, we exercise plenary
review.’’ State v. Dixon, 318 Conn. 495, 511, 122 A.3d
542 (2015); see also State v. Pierre, 277 Conn. 42, 92,
890 A.2d 474 (‘‘[t]he defendant challenges the trial
court’s legal conclusion that the critical stage triggering

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Clark v. Commissioner of Correction
the protections of the sixth amendment did not occur
until the information was filed and the defendant was
charged at his arraignment’’), cert. denied, 547 U.S.
1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006).
‘‘It is undisputed that a defendant has a constitutional
right to be present at all critical stages of the trial. . . .
The constitutional right to presence is rooted to a large
extent in the [c]onfrontation [c]lause of the [s]ixth
[a]mendment . . . but . . . [that] right is protected by
the [d]ue [p]rocess [c]lause in some situations where
the defendant is not actually confronting witnesses or
evidence against him. . . . In judging whether a partic-
ular segment of a criminal proceeding constitutes a
critical stage of a defendant’s prosecution, courts have
evaluated the extent to which a fair and just hearing
would be thwarted by [the defendant’s] absence or
whether his presence has a relation, reasonably sub-
stantial, to the [fullness] of his opportunity to defend
against the charge. . . . Thus, a defendant is guaran-
teed the right to be present at any stage of the criminal
proceeding that is critical to its outcome if his presence
would contribute to the fairness of the procedure. . . .
‘‘Although some courts have held that a defendant
has a right to be present even when questions of law
are discussed . . . the better view would seem to be
that there is no such absolute right . . . especially
when . . . the question of law is argued prior to the
selection of the jury and the commencement of trial.
. . . The question should be whether the defendant’s
presence bears a relation, reasonably substantial, to his
opportunity to defend. . . . [T]he exclusion of a defen-
dant from a proceeding should be considered in light
of the whole record.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Ralph B., 162 Conn. App.
583, 595–96, 131 A.3d 1253 (2016). In the context of
claims sounding in ineffective assistance of counsel,

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Clark v. Commissioner of Correction
‘‘[o]ur Supreme Court has recognized that pretrial nego-
tiations implicating the decision of whether to plead
guilty constitute a critical stage in criminal proceedings
and that plea bargaining is an integral component of the
criminal justice system.’’ Shefelbine v. Commissioner of
Correction, 150 Conn. App. 182, 186, 90 A.3d 987 (2014).
For the reasons that follow, we reject the petitioner’s
argument that, because the June 2, 2009 ‘‘hearing was
scheduled for the petitioner to either accept or reject
the state’s plea offer,’’ the habeas court erred in con-
cluding that the June 2, 2009 proceeding was not a
critical stage of his prosecution.10 The habeas court
expressly concluded, and we agree, that the June 2,
2009 proceeding ‘‘did not constitute a critical stage in
the petitioner’s prosecution for purposes of a constitu-
tional violation.’’ Although June 2, 2009, was originally
scheduled to be a so-called ‘‘accept or reject’’ date,
because the petitioner failed to appear at that hearing,
the nature of the hearing entirely changed. The June
2, 2009 transcript reveals that nothing occurred with
respect to the pending plea offer, and, in fact, that offer
remained available after the withdrawal of Attorney
Lawlor and the reappointment of Attorney Edgington.
10 Insofar as the petitioner argues that the June 2, 2009 proceeding consti-
tuted a critical stage of his prosecution because ‘‘the hearing evolved into
a procedure in which [Attorney Lawlor] made a request to withdraw which
was granted,’’ we disagree. The sixth amendment ‘‘does not provide an
inexorable right to representation by a criminal defendant’s preferred law-
yer’’; (internal quotation marks omitted) State v. Dijmarescu, 182 Conn.
App. 135, 143, 189 A.3d 111, cert. denied, 329 Conn. 912, 186 A.3d 707
(2018); and a defendant’s sixth amendment right to counsel of choice is not
implicated by a motion to withdraw from representation. Id., 143–44. ‘‘In
circumstances in which a defendant’s private attorney seeks to withdraw
from representing the defendant . . . all the sixth amendment demands is
a reasonable opportunity to retain new counsel . . . .’’ (Internal quotation
marks omitted.) Id., 143 n.5. In the present action, the court found that
‘‘[t]he petitioner was promptly notified by the court of Attorney Lawlor’s
withdrawal and was given ample opportunity to find substitute counsel,’’ a
finding that the petitioner does not challenge on appeal.

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See footnote 8 of this opinion. In short, because the
June 2, 2009 proceeding had no effect on the petitioner’s
ability to accept or reject the plea offer, the habeas
court properly determined that it was not a critical
stage of the petitioner’s prosecution and, therefore, the
petitioner’s due process rights were not violated.
The judgment is affirmed.
In this opinion the other judges concurred.