State v. Lewis

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State v. Lewis
STATE OF CONNECTICUT v. JERMAINE LEWIS
(AC 48094)
Alvord, Moll and Seeley, Js.
Syllabus
The defendant, who had been on probation as a result of a prior criminal
conviction, appealed from the trial court’s judgment revoking his probation
and imposing a sentence of incarceration. The defendant claimed that he
was deprived of his due process right to testify in the violation of probation
proceeding because his waiver of that right was not made knowingly, intel-
ligently and voluntarily. Held:
The defendant’s waiver of his constitutional right to testify was made in
violation of his right to due process, as the record did not provide this court
with sufficient assurance that the waiver was made knowingly, intelligently
and voluntarily, defense counsel having made no representations to the court
about the defendant’s decision not to testify, the court did not so inquire
of the defendant or of counsel, and the record was devoid of any indication
that counsel had discussions with the defendant regarding his right to testify
and the waiver of that right, and, as the state failed to demonstrate that the
violation was not harmless beyond a reasonable doubt, the judgment was
reversed and the case was remanded for a new violation of probation hearing.
This court rejected the state’s contention that a defendant’s constitutional
right to testify in a violation of probation proceeding is not equivalent to that
of a defendant in a criminal trial and concluded that defendants in violation
of probation proceedings enjoy a constitutional right to testify that is equal
to that of defendants in criminal trials.
This court, in concluding that a defendant’s waiver of the constitutional
right to testify in a violation of probation proceeding must comport with due
process, could discern no compelling reason why the determination in State
v. Morel-Vargas (343 Conn. 247) that a defendant’s waiver of the right to
testify in a criminal trial must be made knowingly, intelligently and volun-
tarily should not apply with equal force in a violation of probation proceeding.
This court concluded that a constitutionally valid waiver of a defendant’s
right to testify in a violation of probation proceeding requires a showing of
sufficient assurance, based on the totality of the record, that the defendant’s
waiver was made knowingly, intelligently and voluntarily, and, although a
court is not required to canvass a defendant or to inquire of defense counsel
whether the defendant has been adequately advised prior to the waiver,
the most prudent approach for trial courts would be to canvass defendants
regarding a waiver of the right to testify.
Argued March 16—officially released July 7, 2026

State v. Lewis
Procedural History
Information charging the defendant with violation of
probation, brought to the Superior Court in the judicial
district of Waterbury and transferred to the judicial
district of New Haven at Meriden, geographical area
number seven, where the case was tried to the court,
Zagaja, J.; judgment revoking the defendant’s proba-
tion, from which the defendant appealed to this court.
Reversed; further proceedings.
Erica A. Barber, assistant public defender, for the
appellant (defendant).
Meryl R. Gersz, assistant state’s attorney, with whom,
on the brief, were John P. Doyle, Jr., state’s attorney,
and Nichol Peco, senior assistant state’s attorney, for
the appellee (state).
Opinion
SEELEY, J. The defendant, Jermaine Lewis, appeals
from the judgment of the trial court finding him in viola-
tion of, and revoking, his probation pursuant to General
Statutes (Rev. to 2023) § 53a-32.1 On appeal, the defen-
dant claims, for the first time, that he was deprived of
his due process right to testify in the violation of proba-
tion proceeding because the record does not show that
1General Statutes (Rev. to 2023) § 53a-32 provides in relevant part:
“(a) At any time during the period of probation or conditional discharge,
the court or any judge thereof may issue a warrant for the arrest of a
defendant for violation of any of the conditions of probation or condi-
tional discharge . . . .
“(c) Upon notification by the probation officer of the arrest of the
defendant or upon an arrest by warrant as herein provided, the court
shall cause the defendant to be brought before it without unneces-
sary delay for a hearing on the violation charges. At such hearing the
defendant shall be informed of the manner in which such defendant is
alleged to have violated the conditions of such defendant’s probation or
conditional discharge, shall be advised by the court that such defendant
has the right to retain counsel and, if indigent, shall be entitled to the
services of the public defender, and shall have the right to cross-examine
witnesses and to present evidence in such defendant’s own behalf. Unless
good cause is shown, a charge of violation of any of the conditions of
probation or conditional discharge shall be disposed of or scheduled for

State v. Lewis
his waiver of that right was knowing and voluntary. In
support of his claim that his waiver of his right to testify
was not constitutionally valid, the defendant relies on
the decision from our Supreme Court in State v. Morel-
Vargas, 343 Conn. 247, 254, 273 A.3d 661, cert. denied,
___U.S.___, 143 S. Ct. 263, 214 L. Ed. 2d 114 (2022),
in which the court addressed the issue of what is consti-
tutionally required to demonstrate that a defendant in a
criminal trial knowingly, voluntarily, and intelligently
waived his right to testify on his own behalf. Specifically,
in Morel-Vargas, the court held that, although “a trial
court is not constitutionally required to obtain an on-the-
record waiver from the criminal defendant, himself”;
(emphasis added) id., 263–64; “the totality of the record
[must furnish] sufficient assurance of a constitutionally
valid waiver of the right to [testify].” (Internal quota-
tion marks omitted.) Id., 260. Our Supreme Court in
Morel-Vargas exercised its “supervisory authority pro-
spectively to require a trial court, when presiding over
a criminal trial, to either canvass the defendant prior
to his waiver of his right to testify or, alternatively, to
inquire of defense counsel directly to determine whether
counsel has adequately advised the defendant regarding
the waiver of his right to testify.” (Emphasis added.) Id.,
270. The primary question we must decide in this appeal
a hearing not later than one hundred twenty days after the defendant
is arraigned on such charge.
“(d) If such violation is established, the court may: (1) Continue the
sentence of probation or conditional discharge; (2) modify or enlarge the
conditions of probation or conditional discharge; (3) extend the period
of probation or conditional discharge, provided the original period with
any extensions shall not exceed the periods authorized by section 53a-
29; or (4) revoke the sentence of probation or conditional discharge. If
such sentence is revoked, the court shall require the defendant to serve
the sentence imposed or impose any lesser sentence. Any such lesser
sentence may include a term of imprisonment, all or a portion of which
may be suspended entirely or after a period set by the court, followed by
a period of probation with such conditions as the court may establish. No
such revocation shall be ordered, except upon consideration of the whole
record and unless such violation is established by the introduction of
reliable and probative evidence and by a preponderance of the evidence.”
In this opinion, our references to § 53a-32 are to the 2023 revision
of the statute.

State v. Lewis
is whether, in light of Morel-Vargas, which was decided
in the context of a criminal trial, a defendant’s waiver of
his right to testify in a violation of probation proceeding
also must be knowing, intelligent, and voluntary for the
waiver to be constitutionally valid. We answer that ques-
tion in the affirmative, and, because the record in this
case is not sufficient to establish that the defendant’s
waiver of his right to testify was knowing, intelligent,
and voluntary, we reverse the judgment of the court and
remand the case for a new violation of probation hearing.
The following facts and procedural history are relevant
to our resolution of this appeal. On January 22, 2021,
the defendant entered a guilty plea to assault in the first
degree in violation of General Statutes § 53a-59 (a) (3),
for which he subsequently was sentenced to ten years of
incarceration, execution suspended after five years, fol-
lowed by five years of probation.2 On December 15, 2022,
the defendant began serving his probation and signed a
conditions of probation form, which included, inter alia,
the standard condition that he not violate any criminal
laws. Subsequently, on April 30, 2023, the defendant’s
probation officer, Charles Santiago, was informed by the
Meriden police that the defendant had been arrested for
risk of injury to a child.3 The charge stemmed from con-
duct of the defendant that took place on April 30, 2023,
involving a fifteen year old girl, H.4 The defendant had
been visiting the home of V, a close friend, and V’s then
fourteen year old son, A, who was dating H at the time.
During that visit, at which time the defendant, V, A, and
H were all present in V’s home, the defendant allegedly
sent sexually explicit text messages to H,5 exposed his
2The defendant’s conduct underlying the assault charge occurred on
or about December 29, 2017, and the defendant was arrested in 2018.
3The defendant initially had been charged with risk of injury to a child
and sexual assault in the fourth degree, but the information subsequently
was amended to include only the charge of risk of injury to a child.
4In accordance with our policy of protecting the privacy interests
of the victims of the crime of risk of injury to a child, we decline to
identify the victim or others through whom the victim’s identity may
be ascertained. See General Statutes § 54-86e.
5See footnote 8 of this opinion.

State v. Lewis
penis to H, and asked H if she would perform fellatio on
and “fondle” A’s penis, stating that he would pay H if
she did so. As a result of the defendant’s arrest, Santiago
submitted a warrant for the defendant’s arrest for viola-
tion of the condition of his probation that he not violate
any criminal laws.
On June 7, 2024, the court, Zagaja, J., held a hearing
on the violation of probation charge. The state presented
testimony from Santiago and Officer Raeshaun Finney
of the Meriden Police Department, who had responded
to a 911 call regarding the April 30, 2023, incident and
testified regarding the statements made to him by H
about what had transpired. The court also admitted
into evidence, without objection, exhibits offered by the
state, which included a certified copy of the defendant’s
2021 conviction, the defendant’s signed conditions of
probation form, and photographs of the text messages
sent by the defendant to H.
After the state rested its case, defense counsel indi-
cated to the court that she intended to call two witnesses
to testify, V and A.6 Following the conclusion of A’s
testimony, defense counsel stated that she had “[n]oth-
ing further” and that the defense rested. At that time,
neither the court nor defense counsel made any state-
ments regarding the defendant’s decision not to testify,
and the defendant, who had remained silent when his
counsel stated that the defense had nothing further,
did not make any representations to the court indicat-
ing that he wanted to testify.7 Subsequently, the court
6The court admitted into evidence an exhibit offered by the defendant,
which was a screenshot taken from video footage from Finney’s body
camera that showed a “hickey mark” on A’s neck.
7Prior to hearing arguments from counsel, the court first addressed
a due process claim that previously had been raised by defense counsel
regarding Finney’s testimony about the hearsay statements of H and the
fact that H did not testify at the hearing, which precluded the defen-
dant’s ability to cross-examine H regarding her statements. The defen-
dant has not raised any due process claim in this appeal concerning the
court’s admission of Finney’s testimony about the hearsay statements
of H and the defendant’s inability to cross-examine H. Accordingly,
we deem any such claim abandoned. See, e.g., State v. Antwon B., 236

State v. Lewis
heard arguments from counsel, after which it stated
its decision orally on the record. Specifically, the court
found that the state had proven, by a preponderance of
the evidence, that the defendant committed risk of injury
to a child through his text communications with H8 and
Conn. App. 428, 449 n.14, 348 A.3d 814 (2025) (“claims of error not
briefed are considered abandoned” (internal quotation marks omitted)),
cert. denied, 354 Conn. 910, 349 A.3d 1094 (2026).
8Specifically, the court stated: “I do find that the defendant has
committed risk of injury to a [child]. Specifically, with the full exhibit
3, the text messages that were presented by the state, and they were
photographed copies of screenshots that were on the telephone, the
cell telephone of [H]. I want to point out certain things I observed by
that conversation. It first starts off by indicating, ‘[h]ow bad are you,’
with a response from the person purported to be [H], the phone holder,
saying, ‘[w]ho is this?’ And then followed up with a ‘[h]ello.’ Then the
person, and, again, I’m going to complement this by the testimony I
heard, I heard that through questioning from [Finney, the defendant]
did acknowledge that he was involved in a text conversation with [H].
[The defendant] then indicates, ‘[w]hen do you turn 16.’ She says,
‘[n]ext March.’ And he says, ‘[a]nd stop acting surprised . . . keep a
secret . . . shhh.’ [H] then texts, ‘[t]f’ [and] ‘[w]ho is this,’ to which
[the defendant] says, ‘[i]t’s me . . . look up.’ Now, that sequence, and
this is what I was presented with, this sequence of conversation on [H’s]
phone entirely contradicts the testimony of the defense witnesses that
[H] actually initiated this conversation. To the court’s understand-
ing, this is a conversation initiated by [the defendant]. [H] then says,
‘[w]hy do u want to no when I turn 16.’ [The defendant] says, ‘[h]ow
bad are you was the original question.’ [H] says, ‘[l]ike sexual?’ [The
defendant] says, ‘[c]an you keep a secret?’ [H] responds, ‘[o]k, [y]es.’
[The defendant] then says, ‘[y]ou’re bad, I’m sorry.’ [H] says, ‘[d]o u
like me.’ [The defendant] says, ‘[y]ou’re cute, but young. I didn’t want
to scare you just now.’ [H] says, ‘[i]t’s ok.’ [The defendant] then says,
‘[y]ou sure, ok . . . I guess delete this since I made you feel awkward.
. . . Please don’t say anything.’ [H] responds, ‘[o]k.’ [The defendant]
then says, ‘[s]ure you ok?’ [H] then responds, ‘[y]eah,’ to which [the
defendant] writes, ‘[h]ow bad are you was the original question that
you never answered. . . . [N]ot bad enough to do something wild with
someone older? is that too much for you beautiful?’ [H] then responds,
‘I’ve never done something.’ And then [the defendant] says, ‘[y]ou told us
you weren’t a virgin . . . that you did give oral sex before.’ Now, in that
context, considering this text message sequence alone, the court finds
that the defendant, unsolicited, committed risk of injury to a [child]. By
his own words, he does acknowledge that the recipient of this message
is under sixteen years of age. He acknowledges the awkward nature of
this communication, either the awkward nature of the communication
or the hearsay testimony that this was a sequence of communications
in the middle of him exposing himself. The court, however, finds that

State v. Lewis
thereby violated his probation.9 Subsequently, after
hearing arguments from counsel and a statement from
the defendant, in which he stated that he “appreciated
the court’s fairness in this matter,” the court revoked
the defendant’s probation and sentenced him to four
years of incarceration. This appeal followed.
On appeal, the defendant claims that his due process
right to testify on his own behalf was violated because
the record does not demonstrate that he knowingly and
voluntarily waived that right at the violation of proba-
tion hearing.10 At the outset, the defendant acknowledges
that he did not raise this due process claim at trial and
seeks review of it 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
the content alone of the communications [is] enough and sufficient
to establish that he has committed risk of injury to a [child]. I don’t
believe that there is any mystery. There is no double meaning as to what
he could be intending when he asks about her age and doing something
wild with someone older.”
9With respect to the state’s allegations that the defendant also violated
his probation by exposing his penis to H and making sexual comments
to her in which he offered to pay her money if she performed oral sex on
A, the court stated: “I’m not indicating that those other allegations fall
short of preponderance of the evidence. I’m indicating to you [counsel]
that, based on my finding of facts and considering the entirety of the
evidence, I believe that the defendant has committed risk of injury to a
[child], specifically, based on the allegations of the text messages sent
to [H] . . . [that] are contained in state’s exhibit 3.”
10We note that, throughout much of his appellate briefs, the defen-
dant, in asserting his due process claim, focuses on the court’s failure
to “conduct an on-the-record colloquy at any stage in the proceedings
regarding whether [the defendant] understood his right to testify
and his waiver of that right.” He also contends that the court was
required, pursuant to Morel-Vargas, to canvass him or to inquire of
defense counsel directly to determine whether counsel adequately had
advised the defendant regarding his right to testify and the waiver of
that right. For reasons explained in part III of this opinion, we reject
these claims. The defendant’s contention that his right to testify was
violated, however, is also premised on his claim that his waiver of his
constitutional right to testify had to be knowing and voluntary, and
that the totality of the record fails to provide sufficient assurance of a
constitutionally valid waiver. Our analysis in this opinion focuses on
that aspect of his claim of a constitutional violation.

State v. Lewis
(2015).11 “Under 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 viola-
tion 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.’ . . . State v. Golding, supra, 239–40; see In re
Yasiel R., supra, 781 (modifying third prong of Gold-
ing).” (Emphasis in original.) State v. Morel-Vargas,
supra, 343 Conn. 253. We conclude that the record is
adequate for review of this claim12 and that the claim is of
constitutional magnitude. See id., 253–54; see also State
v. Christopher R., 222 Conn. App. 763, 771, 306 A.3d
1117 (2023), cert. denied, 348 Conn. 946, 308 A.3d 34
(2024); State v. Frazier, 181 Conn. App. 1, 35, 185 A.3d
11The defendant also seeks review of his unpreserved due process claim
under the plain error doctrine and claims that the due process violation
constituted structural error. See footnotes 21 and 25 of this opinion.
12We disagree with the state’s contention that the record is inadequate
for review of this claim. In making that assertion, the state relies on
State v. Taveras, 219 Conn. App. 252, 256, 295 A.3d 421, cert. denied,
348 Conn. 903, 301 A.3d 527 (2023), which involved an unpreserved
claim that the trial court’s admission of testimony containing hearsay
during a violation of probation hearing violated the defendant’s due
process right to cross-examine the declarant of the hearsay statements.
Specifically, the defendant in Taveras claimed that the trial court
improperly had failed to conduct the balancing test set forth in State v.
Shakir, 130 Conn. App. 458, 467–68, 22 A.3d 1285, cert. denied, 302
Conn. 931, 28 A.3d 345 (2011), and “to determine whether good cause
existed for his inability to confront and cross-examine [the declarant]
at the probation revocation hearing . . . .” State v. Taveras, supra,
265. This court concluded that the record was inadequate to review the
alleged due process violation under Golding because the defendant did
not distinctly raise the balancing issue with the court at the violation of
probation proceeding, such that “the court had no occasion to consider
whether there was good cause not to allow confrontation.” Id., 268;
see id. (“[t]his court has determined . . . that where the defendant does
not request that the court conduct the Shakir balancing test, or make
a good cause finding, the record is inadequate for review of a due pro-
cess claim under the first prong of Golding” (internal quotation marks

State v. Lewis
621, cert. denied, 328 Conn. 938, 184 A.3d 268 (2018).
Accordingly, we first focus our inquiry on whether the
claimed constitutional violation exists.
In support of his due process claim, the defendant
asserts that the right to testify in a violation of probation
proceeding is a fundamental constitutional right and
that, therefore, for a waiver of that right to be effective,
it must be knowing, intelligent, and voluntary. Relying
on Morel-Vargas, he further contends that it was not
necessary that he “take affirmative action to invoke the
due process right to testify on his behalf” and that the
record in this case “does not [furnish] sufficient assur-
ance of a constitutionally valid waiver of [his] right to
testify,” as “the trial court never canvassed [him] about
his constitutional right to testify,” defense counsel “did
not make any statements or representations to the court
that [the defendant] was waiving his right to testify,” and
a “waiver [could not] be inferred from a silent record . . . .”
In response, the state highlights the differences between
criminal trials and violation of probation proceedings,
which “implicate fewer rights because revocation is not
new punishment for a new crime.” (Internal quotation
marks omitted.) Recognizing that “probationers are
entitled to certain minimum procedural safeguards under
the due process clause of the fourteenth amendment,”
which are detailed in § 53a-32; see footnote 1 of this opin-
ion; the state, nonetheless, emphasizes that a violation
of probation proceeding is informal in nature, should
not be equated with a criminal trial, and requires only
omitted)); see also State v. Crespo, 190 Conn. App. 639, 647, 211 A.3d
1027 (2019). We conclude that the state’s reliance on Taveras for the
proposition that there is no factual record to review the defendant’s
unpreserved due process claim is misplaced, as the present case does not
involve a claimed violation of the right of confrontation in a violation
of probation proceeding, which implicates the Shakir balancing test
and requires a good cause finding by the trial court. Rather, the defen-
dant’s unpreserved due process claim in the present case requires us to
determine what is constitutionally required in a violation of probation
proceeding for a defendant to make a valid waiver of his right to testify

State v. Lewis
limited due process protections. As a result, the state con-
tends that courts are not required to canvass a defendant
regarding a waiver of the right to testify at a violation
of probation proceeding. The state further contends
that, because a defendant’s due process right to testify
at a violation of probation proceeding is not “equivalent
to a criminal defendant’s right to testify at a criminal
trial,” a defendant’s waiver of the right to testify at a
violation of probation proceeding need not be knowing,
intelligent, and voluntary. Therefore, according to the
state, the defendant’s reliance on Morel-Vargas, which
pertains to defendants in criminal trials, is misplaced.
In support of its claim that a defendant’s waiver of
the right to testify at a violation of probation hearing
need not be knowing, intelligent, and voluntary, the
state relies on federal case law holding that the inquiries
mandated to assure the knowing and intelligent entry of
a guilty plea set forth in rule 11 of the Federal Rules of
Criminal Procedure13 and Boykin v. Alabama, 395 U.S.
and whether a constitutional violation exists, which can be determined
on the basis of the record before us.
13Rule 11 (b) (1) of the Federal Rules of Criminal Procedure provides:
“Before the court accepts a plea of guilty or nolo contendere, the defen-
dant may be placed under oath, and the court must address the defendant
personally in open court. During this address, the court must inform
the defendant of, and determine that the defendant understands, the
following:
“(A) the government’s right, in a prosecution for perjury or false
statement, to use against the defendant any statement that the defen-
dant gives under oath;
“(B) the right to plead not guilty, or having already so pleaded, to
persist in that plea;
“(C) the right to a jury trial;
“(D) the right to be represented by counsel—and if necessary have
the court appoint counsel—at trial and at every other stage of the
proceeding;
“(E) the right at trial to confront and cross-examine adverse witnesses,
to be protected from compelled self-incrimination, to testify and present
evidence, and to compel the attendance of witnesses;
“(F) the defendant’s waiver of these trial rights if the court accepts
a plea of guilty or nolo contendere;
“(G) the nature of each charge to which the defendant is pleading;
“(H) any maximum possible penalty, including imprisonment, fine,
and term of supervised release;

State v. Lewis
238, 242–44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969),14
are not required when a court accepts a defendant’s
admission to a violation of probation. Finally, the state
contends that the record in this case nevertheless dem-
onstrates that the defendant was afforded his minimum
procedural due process protections, including the oppor-
tunity to be heard in person, as he was present when his
attorney indicated to the court that the defendant had no
additional witnesses and rested the defendant’s case, and
there is nothing in the record indicating that the defen-
dant wanted to testify and was prevented from doing so.
Before we address the merits of the arguments raised
by the parties, we first set forth the legal principles
governing probation in general and violation of proba-
tion proceedings, as well as the standards governing our
review of a judgment revoking a defendant’s probation.
“[P]robation is, first and foremost, a penal alternative
to incarceration . . . . [Its] purpose . . . is to provide a
period of grace in order to aid the rehabilitation of a
penitent offender; to take advantage of an opportunity
for reformation which actual service of the suspended
sentence might make less probable. . . . [P]robationers . . .
do not enjoy the absolute liberty to which every citizen
is entitled, but only . . . conditional liberty properly
“(I) any mandatory minimum penalty;
“(J) any applicable forfeiture;
“(K) the court’s authority to order restitution;
“(L) the court’s obligation to impose a special assessment;
“(M) in determining a sentence, the court’s obligation to calculate
the applicable sentencing-guideline range and to consider that range,
possible departures under the [United States] Sentencing Guidelines,
and other sentencing factors under 18 U.S.C. § 3553 (a);
“(N) the terms of any plea-agreement provision waiving the right to
appeal or to collaterally attack the sentence; and
“(O) that, if convicted, a defendant who is not a United States citizen
may be removed from the United States, denied citizenship, and denied
admission to the United States in the future.”
14In Boykin, the United States Supreme Court held that “[i]t was error
. . . for the trial judge to accept [the] petitioner’s guilty plea without an
affirmative showing that it was intelligent and voluntary,” that waiver
cannot be presumed from a silent record, and that a court must canvass
an accused to make sure he has a full understanding of the consequences
of his plea. Boykin v. Alabama, supra, 395 U.S. 242–44.

State v. Lewis
dependent on observance of special [probation] restric-
tions. . . . These restrictions are meant to [ensure] that the
probation serves as a period of genuine rehabilitation and
that the community is not harmed by the probationer’s
being at large.” (Internal quotation marks omitted.) State
v. Faraday, 268 Conn. 174, 180, 842 A.2d 567 (2004).
“The success of probation as a correctional tool is in
large part tied to the flexibility within which it is permit-
ted to operate.” (Internal quotation marks omitted.) Id.
Nevertheless, “the privilege of probation, once granted,
is a constitutionally protected interest.” State v. Davis,
229 Conn. 285, 294, 641 A.2d 370 (1994); see also State
v. Orr, 199 Conn. App. 427, 434–35, 237 A.3d 15 (2020).
To that end, “[t]he due process clause of the fourteenth
amendment to the United States constitution requires
that certain minimum procedural safeguards be observed
in the process of revoking the conditional liberty created
by probation.” (Internal quotation marks omitted.) State
v. Faraday, supra, 268 Conn. 182. The United States
Supreme Court delineated those procedural safeguards
in Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct.
2593, 33 L. Ed. 2d 484 (1972), in the context of a revo-
cation of parole proceeding. Specifically, the court held
that the minimum requirements of due process include
“(a) written notice of the claimed violations of parole;
(b) disclosure to the parolee of evidence against him;
(c) opportunity to be heard in person and to present
witnesses and documentary evidence; (d) the right to
confront and cross-examine adverse witnesses (unless
the hearing officer specifically finds good cause for not
allowing confrontation); (e) a ‘neutral and detached’
hearing body such as a traditional parole board, members
of which need not be judicial officers or lawyers; and (f)
a written statement by the factfinders as to the evidence
relied on and reasons for revoking parole.” Id. Those
requirements have been deemed to apply to violation
of probation proceedings; see Gagnon v. Scarpelli, 411
U.S. 778, 782, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973)
(“ ‘[Probation revocation, like parole revocation, is not a
stage of a criminal prosecution, but does result in a loss

State v. Lewis
of liberty. Accordingly, we hold that a probationer, like a
parolee, is entitled to a preliminary and final revocation
hearing, under the conditions specified in Morrissey v.
Brewer, supra, [482].’ ” (Footnote omitted.)); and are
embodied in § 53a-32. “Whether a party was deprived
of his due process rights is a question of law to which
appellate courts grant plenary review.” (Internal quota-
tion marks omitted.) Houghtaling v. Commissioner of
Correction, 203 Conn. App. 246, 279, 248 A.3d 4 (2021).
Even though a violation of probation “proceeding must
comport with the requirements of due process, it is not a
criminal proceeding. . . . It therefore does not require all
of the procedural components associated with an adver-
sary criminal proceeding.” (Citations omitted; internal
quotation marks omitted.) State v. Davis, supra, 229
Conn. 295; see also State v. Randy G., 195 Conn. App.
467, 477, 225 A.3d 702 (“[r]evocation of [probation] is
not part of a criminal prosecution and thus the full pano-
ply of rights due a defendant in such a proceeding does
not apply to [probation] revocations” (internal quotation
marks omitted)), cert. denied, 335 Conn. 911, 229 A.3d
472 (2020). For example, “the state must prove each
alleged violation of probation by a preponderance of the
evidence at a revocation proceeding, in accordance with
. . . § 53a-32 . . . .” (Footnote omitted; internal quotation
marks omitted.) State v. Faraday, supra, 268 Conn.
183–84; see also State v. Wade, 351 Conn. 745, 759–60,
333 A.3d 90 (2025) (right to confront witnesses at viola-
tion of probation hearing is not absolute and is subject
to balancing of defendant’s interest in confrontation
against government’s reasons for not producing witness
and reliability of proffered hearsay); State v. Altajir, 303
Conn. 304, 319 n.6, 33 A.3d 193 (2012) (“ ‘Although a
revocation proceeding must comport with the require-
ments of due process, it is not a criminal proceeding. . . .
Just as there is no right to a jury trial before probation
may be revoked, neither is the privilege against com-
pelled self-incrimination available to a probationer.’ ”);
State v. Taveras, 219 Conn. App. 252, 270, 295 A.3d
421 (“[t]he rules of evidence do not apply to probation

State v. Lewis
revocation hearings and, thus, relevant hearsay evidence
is admissible at the discretion of the trial court” (internal
quotation marks omitted)), cert. denied, 348 Conn. 903,
301 A.3d 527 (2023).
“A revocation of probation hearing has two distinct
components and two purposes. A factual determination
by a trial court as to whether a probationer has violated a
condition of probation must first be made. If a violation
is found, a court must next determine whether probation
should be revoked because the beneficial aspects of pro-
bation are no longer being served.” (Internal quotation
marks omitted.) State v. Dunbar, 233 Conn. App. 297,
310, 339 A.3d 642, cert. denied, 353 Conn. 913, 344
A.3d 155 (2025). “A revocation proceeding is held to
determine whether the goals of rehabilitation thought
to be served by probation have faltered, requiring an end
to the conditional freedom obtained by a defendant at a
sentencing that allowed him or her to serve less than a full
sentence. . . . [T]he ultimate question [in the probation
process is] whether the probationer is still a good risk . .
. . This determination involves the consideration of the
goals of probation, including whether the probationer’s
behavior is inimical to his own rehabilitation, as well as
to the safety of the public.” (Internal quotation marks
omitted.) State v. Faraday, supra, 268 Conn. 182–83.
“On the basis of its consideration of the whole record,
the trial court may continue or revoke the sentence of
probation . . . and, if such sentence is revoked, require
the defendant to serve the sentence imposed or impose
any lesser sentence. . . . In making this second determi-
nation, the trial court is vested with broad discretion.”
(Internal quotation marks omitted.) State v. Orr, supra,
199 Conn. App. 436.15
15In the present case, the defendant has not challenged the court’s
finding that he violated his probation, or its dispositional determination
revoking his probation and imposing a four year sentence of incarcera-
tion. Therefore, any issues pertaining to the violation of probation find-
ing and the court’s revocation of the defendant’s probation and sentence
are not before us in this appeal. See, e.g., State v. Antwon B., 236 Conn.
App. 428, 449 n.14, 348 A.3d 814 (2025) (“claims of error not briefed

State v. Lewis
With these principles in mind, we turn next to a dis-
cussion of the constitutional right to testify and our
Supreme Court’s decision in Morel-Vargas.
I
In Rock v. Arkansas, 483 U.S. 44, 107 S. Ct. 2704, 97
L. Ed. 2d 37 (1987), the United States Supreme Court,
in addressing the constitutional right of defendants in
criminal cases to testify, stated: “The right to testify
on one’s own behalf at a criminal trial has sources in
several provisions of the [c]onstitution. It is one of the
rights that ‘are essential to due process of law in a fair
adversary process.’ . . . The necessary ingredients of the
[f]ourteenth [a]mendment’s guarantee that no one shall
be deprived of liberty without due process of law include
a right to be heard and to offer testimony: ‘A person’s
right to reasonable notice of a charge against him, and an
opportunity to be heard in his defense—a right to his day
in court—are basic in our system of jurisprudence; and
these rights include, as a minimum, a right to examine
the witnesses against him, to offer testimony, and to be
represented by counsel.’ . . .
“The right to testify is also found in the [c]ompulsory
[p]rocess [c]lause of the [s]ixth [a]mendment, which
grants a defendant the right to call ‘witnesses in his
favor,’ a right that is guaranteed in the criminal courts of
the [s]tates by the [f]ourteenth [a]mendment. Washing-
ton v. Texas, 388 U.S. 14, 17–19 [87 S. Ct. 1920, 18 L.
Ed. 2d 1019] (1967). Logically included in the accused’s
right to call witnesses whose testimony is ‘material and
favorable to his defense,’ United States v. Valenzuela-
Bernal, 458 U.S. 858, 867 [102 S. Ct. 3440, 73 L. Ed.
2d 1193] (1982), is a right to testify himself, should he
decide it is in his favor to do so. In fact, the most impor-
tant witness for the defense in many criminal cases is
the defendant himself. There is no justification today
for a rule that denies an accused the opportunity to offer
his own testimony.” (Citations omitted; emphasis in
are considered abandoned” (internal quotation marks omitted)), cert.
denied, 354 Conn. 910, 349 A.3d 1094 (2026).

State v. Lewis
original; footnotes omitted.) Rock v. Arkansas, supra,
483 U.S. 51–52. The court stated further that “the
[s]ixth [a]mendment grants to the accused personally
the right to make his defense. It is the accused, not coun-
sel, who must be informed of the nature and cause of the
accusation, who must be confronted with the witnesses
against him, and who must be accorded compulsory
process for obtaining witnesses in his favor. . . . Even
more fundamental to a personal defense than the right
of self-representation, which was found to be necessarily
implied by the structure of the [a]mendment . . . is an
accused’s right to present his own version of events in
his own words. A defendant’s opportunity to conduct
his own defense by calling witnesses is incomplete if he
may not present himself as a witness. The opportunity to
testify is also a necessary corollary to the [f]ifth [a]mend-
ment’s guarantee against compelled testimony. . . .
Every criminal defendant is privileged to testify in his
own defense, or to refuse to do so.” (Citation omitted;
emphasis altered; internal quotation marks omitted.)
Id., 52. Like a defendant in a criminal trial, a defendant
in a violation of probation proceeding also has a consti-
tutional right to be heard in person and, thus, to testify
on his own behalf. See Gagnon v. Scarpelli, supra, 411
U.S. 782; Morrissey v. Brewer, supra, 408 U.S. 489;
State v. Davis, supra, 229 Conn. 294–95 n.10; see also
General Statutes (Rev. to 2023) § 53a-32.
On appeal, the state mistakenly relies on the general
principle that probationers are not entitled to the same
procedural protections afforded to criminal defendants
as support for its contention that a defendant’s con-
stitutional right to testify at a violation of probation
proceeding is not “equivalent to that of a criminal defen-
dant’s right to testify in a criminal trial” and is somehow
different from or less than what the state refers to as
the “absolute right to testify at an adversarial criminal
trial.” As we have explained, a violation of probation
proceeding “does not require all of the procedural com-
ponents associated with an adversary criminal proceed-
ing”; (emphasis added) State v. Davis, supra, 229 Conn.

State v. Lewis
295; in that, in a violation of probation proceeding, the
lesser standard of proof by a preponderance of the evi-
dence applies, the rules of evidence are not applicable,
the right of confrontation is not absolute, there is no
right to a jury trial, and a probationer is not entitled to
the privilege against self-incrimination. Those differ-
ences notwithstanding, defendants in criminal trials
and at violation of probation proceedings equally enjoy
a constitutional right to be heard or to testify. There is
nothing in Morrissey and Gagnon, which extended the
constitutional right to testify to parole and probation
revocation proceedings, indicating that the right to be
heard on one’s own behalf at such a proceeding is some-
how different from the right to do so at a criminal trial,
and the state has not directed this court to any authority
to support such a conclusion. Indeed, the United States
Supreme Court in Rock, discussing the constitutional
right to testify in criminal cases, noted that “[t]his right
reaches beyond the criminal trial: the procedural due
process constitutionally required in some extrajudicial
proceedings includes the right of the affected person to
testify. See, e.g., Gagnon v. Scarpelli, [supra, 411 U.S.
782] (probation revocation); Morrissey v. Brewer, [supra,
408 U.S. 489] (parole revocation); Goldberg v. Kelly, 397
U.S. 254, 269 [90 S. Ct. 1011, 25 L. Ed. 2d 287] (1970)
(termination of welfare benefits).” (Emphasis added.)
Rock v. Arkansas, supra, 483 U.S. 51 n.9. The central
question in this appeal is not whether the constitutional
right to testify at a violation of probation proceeding is
different from the constitutional right to testify at a
criminal trial. Rather, the primary question we must
decide is whether our Supreme Court’s determination
in Morel-Vargas of what is constitutionally required to
demonstrate a valid waiver of that right at a criminal
trial should apply in violation of probation proceedings
as well. We, thus, turn to a discussion of Morel-Vargas.
In State v. Morel-Vargas, supra, 343 Conn. 247, our
Supreme Court addressed “significant questions” con-
cerning the right to testify that were “left unanswered by
Rock,” namely, whether the right to testify is a tactical or

State v. Lewis
personal constitutional right and, if it is a personal right,
“what is constitutionally required to demonstrate that
a criminal defendant, himself, knowingly, intelligently
and voluntarily waived that right.” Id., 254.
Although the court’s constitutional analysis in Morel-
Vargas arose in the context of a criminal case, we none-
theless find it informative to the issue before us in the
present case, which similarly involves the constitutional
right to testify, albeit in the context of a violation of
probation proceeding.
At the outset, the court in Morel-Vargas explained
that, “ ‘[i]n general, federal and state constitutional
and statutory rights can be waived’ ”; id., 259; and that
“[w]hat suffices for waiver depends on the nature of the
right at issue. [W]hether the defendant must participate
personally in the waiver; whether certain procedures are
required for waiver; and whether the defendant’s choice
must be particularly informed or voluntary, all depend on
the right at stake. . . . For certain fundamental rights, the
defendant must personally make an informed waiver. . . .
For other rights, however, waiver may be effected by
action of counsel. . . . New York v. Hill, 528 U.S. 110,
114, 120 S. Ct. 659, 145 L. Ed. 2d 560 (2000). Included
in the former category of rights are decisions personal
to a criminal defendant—namely, decisions that affect
personal constitutional rights—such as the decision of
whether to enter a guilty plea, waive a jury trial, and
pursue an appeal. See State v. Gore, [288 Conn. 770,
779 n.9, 955 A.2d 1 (2008)]. Included in the latter cat-
egory are tactical rights, which primarily involve trial
strategy and tactics, such as the statutory protection of
a probable cause hearing . . . the right to call witnesses . . .
and the composition of a jury charge.” (Internal quota-
tion marks omitted.) State v. Morel-Vargas, supra, 343
Conn. 254–55.
Ultimately, our Supreme Court concluded “that a
defendant’s right to testify is a personal constitutional
right that can be waived only by the defendant.” Id., 256.
The court reached that decision on two grounds. Id. First,

State v. Lewis
it noted that the United States Supreme Court in Rock had
“compare[d] a criminal defendant’s right to testify with
the right of self-representation and described the defen-
dant’s right to testify as [e]ven more fundamental to a
personal defense than the right of self-representation . . . .
The court’s designation of the right to testify in one’s
own defense as more fundamental than the right to self-
representation—which the court deemed a personal
constitutional right in Faretta v. California, 422 U.S.
806, 819–20, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975)—
logically implies that the decision of whether to testify
is also personal to the defendant. Second, in Rock, the
Supreme Court noted that a criminal defendant’s right
to testify is a necessary corollary to the [f]ifth [a]mend-
ment’s guarantee against compelled testimony. . . . Every
criminal defendant is privileged to testify in his own
defense, or to refuse to do so.” (Citation omitted; empha-
sis in original; internal quotation marks omitted.) State
v. Morel-Vargas, supra, 343 Conn. 256–57.
Next, the court in Morel-Vargas addressed “whether
the constitution mandates the form the waiver of [the
right to testify] must take.” Id., 258. The court explained:
“The standard for an effective waiver of a constitutional
right related to the procedure for the determination of
guilt or innocence, such as the right to testify in one’s
own defense, ‘is that it must be knowing and intelli-
gent, as well as voluntary. . . . Relying on the standard
articulated in Johnson v. Zerbst, 304 U.S. 458, 464,
58 S. Ct. 1019, 82 L. Ed. 1461 (1938), we have adopted
the definition of a valid waiver of a constitutional right
as the intentional relinquishment or abandonment of
a known right. . . . In determining whether this strict
standard has been met, a court must inquire into the
totality of the circumstances of each case. . . . When
such a claim is first raised on appeal, our focus is on
compliance with these constitutional requirements
rather than on observance of analogous procedural
rules prescribed by statute or by the [rules of practice].
. . . Our task, therefore, is to determine whether the
totality of the record furnishes sufficient assurance of a

State v. Lewis
constitutionally valid waiver of the right to [testify]. . . .
Our inquiry is dependent [on] the particular facts and cir-
cumstances surrounding [each] case, including the back-
ground, experience, and conduct of the [defendant]. . . .
In examining the record, moreover, we will indulge
every reasonable presumption against waiver of fun-
damental constitutional rights and . . . [will] not pre-
sume acquiescence in the loss of fundamental rights. . . .
In addition, a waiver of a fundamental constitutional
right is not to be presumed from a silent record.
See Boykin v. Alabama, [supra, 395 U.S. 243].’ . . .
State v. Gore, supra, 288 Conn. 776–77.
“In determining the form that the waiver of a criminal
defendant’s constitutional right to testify must take, we
recognize that, in some areas involving personal consti-
tutional rights, this court has required an affirmative
waiver by the defendant, himself, on the record, follow-
ing a trial court’s inquiry. See, e.g., State v. Braswell,
318 Conn. 815, 828, 123 A.3d 835 (2015) (assistance of
counsel); State v. Gore, supra, 288 Conn. 783–84 (jury
trial); State v. Carter, 243 Conn. 392, 397–98, 703 A.2d
763 (1997) (guilty plea). For certain other personal con-
stitutional rights, however, we have determined that a
trial court may properly infer waiver from the defen-
dant’s conduct. See, e.g., State v. Pires, 310 Conn. 222,
246–49, 77 A.3d 87 (2013) (right to self-representation);
State v. Castonguay, 218 Conn. 486, 491–92 n.2, 590
A.2d 901 (1991) (right against self-incrimination).
“The majority of courts that have considered the
requirements for a valid waiver of the right to testify
have determined that a criminal defendant’s waiver of
this right may be inferred from the defendant’s conduct,
namely, from the defendant’s act of not taking the stand;
see, e.g., State v. Thomas, 128 Wn. 2d 553, 559, 910 P.2d
475 (1996); or defense counsel’s in-court representation
that the defendant has elected not to testify, together
with the defendant’s coincident silence. . . . Courts have
also declined to create a per se canvass requirement on
the ground that a colloquy with a judge regarding the

State v. Lewis
right to testify may, in some circumstances, risk improp-
erly influencing a defendant’s decision not to testify.”
(Citations omitted; emphasis in original.) State v. Morel-
Vargas, supra, 343 Conn. 260–62. Accordingly, our
Supreme Court determined, “consistent with the major-
ity of federal courts of appeals that have ruled on this
issue . . . that a trial court is not constitutionally required
to obtain an on-the-record waiver from the criminal
defendant, himself. . . . In so holding, we emphasize
that it is defense counsel’s responsibility to advise his
or her client, the defendant, of the benefits and hazards
regarding the decision of whether to testify, to discuss
the strategic benefits involved, and to inform the defen-
dant that this decision is ultimately the defendant’s to
make.” (Citations omitted.) Id., 263–64.
After applying those principles, the court in Morel-
Vargas concluded: “In this case, the record indicates
that the defendant had ‘extensive conversations’ with
his counsel regarding his decision whether to testify.
Before the state rested its case, defense counsel spoke
with the defendant again regarding his decision whether
to testify, giving the defendant an additional opportu-
nity to exercise his right after viewing and hearing all
of the state’s evidence. Furthermore, the defendant
was present in court when defense counsel informed the
trial judge that the defendant would not testify, and the
defendant did not express any disagreement or concern
with counsel’s representation, much less any desire to the
contrary. The defendant was also present when the jury
returned and defense counsel indicated that the defense
would ‘rest on the state’s case,’ and the defendant again
remained silent. As we have explained, in the absence of
evidence to the contrary, we presume, for purposes of a
constitutional challenge, that defense counsel provided
the defendant with the information necessary to make
an informed decision regarding whether to testify. . . .
The record in this case is devoid of any indication that
the defendant’s silence was the product of anything
other than a knowing, intelligent and voluntary waiver.
Accordingly, we conclude that defense counsel’s in-court

State v. Lewis
representation that the defendant waived his right to
testify, together with the defendant’s coincident silence,
was sufficient to satisfy the constitutional requirement
for a valid waiver of the defendant’s right to testify. The
defendant’s unpreserved constitutional claim therefore
fails Golding’s third prong.” (Citation omitted.) Id., 267.
In Morel-Vargas, however, our Supreme Court
“exercise[d] [its] supervisory authority prospectively
to require a trial court, when presiding over a criminal
trial, to either canvass the defendant prior to his waiver
of his right to testify or, alternatively, to inquire of
defense counsel directly to determine whether counsel
has adequately advised the defendant regarding the
waiver of his right to testify.” (Emphasis added.) Id.,
270. As the court stated: “This latter option—a judicial
inquiry of defense counsel—shall be used, however,
only when defense counsel advises the trial court that
counsel believes that a direct canvass carries the risk of
inadvertently interfering with a decision made by the
defendant after extensive conversations with counsel
regarding trial strategy.” Id., 270–71.
With this background in mind, we turn to the issue
on appeal.
II
In order to determine whether the defendant estab-
lished a due process violation of his constitutional right
to testify at the violation of probation hearing, we must
determine whether the principles promulgated by our
Supreme Court in Morel-Vargas regarding the consti-
tutional right to testify and what is constitutionally
required to effect a valid waiver of that right apply
equally to a violation of probation proceeding, which,
as we have stated, is not a criminal proceeding. In answer-
ing that question in the affirmative, we are guided by
the following.
To begin with, we find significant the court’s determi-
nation in Morel-Vargas “that a defendant’s right to tes-
tify is a personal constitutional right”; id., 256; and that

State v. Lewis
its waiver must be knowing, intelligent, and voluntary.
Id., 260. We cannot discern any compelling reason why
that determination should not apply with equal force to
a defendant’s right to testify in a violation of probation
proceeding given the nature of the right at stake. This
is especially true when the holding in Morel-Vargas is
considered in conjunction with the statement from the
United States Supreme Court in Rock v. Arkansas,
supra, 483 U.S. 52, that the right to testify is “[e]ven
more fundamental to a personal defense than the right
of self-representation,” and with our Supreme Court’s
decision in State v. Connor, 292 Conn. 483, 973 A.2d
627 (2009). A brief explanation of Connor is necessary.
In Connor, the defendant appealed from a judgment of
conviction of various criminal offenses and a judgment
finding him in violation of and revoking his probation,
which previously had been imposed in connection with
a prior, unrelated conviction. Id., 486. On appeal, the
defendant claimed that the trial court improperly found
that he was competent to waive his right to counsel in
both cases. Id., 487. In Connor, the day after the jury
returned its verdict in the defendant’s criminal case, at
which the trial court had fully canvassed him regarding
his waiver of his right to counsel, the court held a hear-
ing with respect to the violation of probation charge
against the defendant. At that hearing, the court asked
the defendant whether he “ ‘still want[ed] to represent
[him]self,’ ” and the defendant answered in the affir-
mative. Id., 531. The court, “without canvassing the
defendant further, honored the request . . . .” Id., 504.
Our Supreme Court concluded that the defendant was
“entitled to a new probation violation hearing because
the trial court failed to ensure that the defendant had
waived his right to counsel knowingly, intelligently and
voluntarily in the probation violation case.” Id., 487.
In reaching that conclusion pertaining to the defen-
dant’s waiver of the right to counsel in a violation of
probation proceeding, the court in Connor relied on State
v. T.R.D., 286 Conn. 191, 206, 942 A.2d 1000 (2008),

State v. Lewis
a criminal case in which our Supreme Court iterated
that “a waiver of the right to counsel does not satisfy
constitutional requirements unless the record reflects
that the defendant was aware of the range of possible
punishments.” State v. Connor, supra, 292 Conn. 532.
In Connor, our Supreme Court held: “Our conclusion in
T.R.D. is equally applicable in the present [violation of
probation] case.” Id.
Three important points can be derived from Connor.
First, given that a waiver of the right to counsel at a viola-
tion of probation hearing must be knowing, intelligent,
and voluntary, and that the right to testify is considered
to be “[e]ven more fundamental” than the right to self-
representation; Rock v. Arkansas, supra, 483 U.S. 52;
it logically follows that a waiver of the right to testify at
a violation of probation proceeding also must be know-
ing, intelligent, and voluntary to be constitutionally
valid. See, e.g., State v. Morel-Vargas, supra, 343 Conn.
256 (“[t]he court’s designation of the right to testify
in one’s own defense as ‘more fundamental’ than the
right to self-representation . . . which the court deemed
a personal constitutional right . . . logically implies that
the decision of whether to testify is also personal to the
defendant” (citation omitted)).
Second, Connor demonstrates that our Supreme Court
has looked to and relied on case law concerning the con-
stitutional rights of criminal defendants in determining
what is also constitutionally required for a defendant in
a violation of probation proceeding. This court recently
did so as well in State v. Owens, 235 Conn. App. 482, 345
A.3d 489 (2025). Owens involved an appeal in a viola-
tion of probation case in which the defendant alleged
that the trial court at his violation of probation hearing
violated his right to self-representation by impermissibly
delaying its canvass of him with respect to his request
to represent himself.16 Id., 490. In Owens, this court
16See also Gentry v. Warden, 167 Conn. 639, 645, 356 A.2d 902 (1975)
(“The right to assistance of counsel is guaranteed to a defendant in a
criminal proceeding by the sixth and fourteenth amendments to the
constitution of the United States. Gideon v. Wainwright, 372 U.S. 335,

State v. Lewis
noted that “[b]oth the federal constitution and our state
constitution afford a criminal defendant the right to
[forgo] the assistance of counsel and to choose instead to
represent himself or herself at trial.” (Emphasis added;
internal quotation marks omitted.) Id., 491–92. This
court further cited to and applied the general rule in
State v. Petteway, 351 Conn. 682, 691–93, 332 A.3d
196 (2025), a criminal case, that, “[o]nce a defendant
invokes his right to self-representation, a trial court must
canvass that defendant to determine if the defendant’s
invocation of that right and the corollary waiver of the
right to counsel were both voluntary and intelligent. . . .
A court must indulge in every reasonable presumption
against the waiver or forfeiture of fundamental con-
stitutional rights, and must not presume acquiescence
in the loss of fundamental rights.” (Internal quotation
marks omitted.) State v. Owens, supra, 492.
As in Connor, this court in Owens applied the rule set
forth in a criminal case concerning a particular consti-
tutional right to a violation of probation case involv-
ing that same constitutional right. As a result, we find
unavailing the state’s claim that, because Morel-Vargas
is a criminal case, it is inapplicable to the present viola-
tion of probation case.
Third, Connor demonstrates that, despite the facts
that defendants in violation of probation cases have
limited due process rights, and that violation of proba-
tion proceedings are informal and not criminal in nature,
the waiver of a personal, fundamental constitutional
right at a violation of probation proceeding requires
that such waiver be knowing, intelligent, and volun-
tary. In Morrissey v. Brewer, supra, 408 U.S. 489, the
court “emphasize[d]” that a parole revocation proceeding
should not be equated with “a criminal prosecution in
83 S. Ct. 792, 9 L. Ed. 2d 799 [1963]. That right has been extended to
all defendants in probation violation hearings in this state by § 53a-32
. . . and it is mandated by due process in cases where the probationer
requests counsel and claims that he did not commit the alleged violation
or that there are substantial reasons which justified or mitigated the
violation. Gagnon v. Scarpelli, [supra, 411 U.S. 778].”).

State v. Lewis
any sense,” and that the procedures in such revocation
proceedings “should be flexible . . . .” Nevertheless, and
notwithstanding the differences between the two types of
proceedings and the more informal nature of a violation
of probation proceeding, courts in violation of probation
cases consistently either have recognized or imposed pro-
cedural requirements akin to those required in criminal
cases when personal, fundamental constitutional rights
are involved, as opposed to tactical rights.
For example, in State v. Woods, 158 Conn. App. 231,
232–33, 118 A.3d 691 (2015), the defendant appealed
from the judgment of the trial court finding him in vio-
lation of his probation pursuant to § 53a-32. On appeal,
the defendant claimed that “he was deprived of his right
to counsel because the trial court failed to establish that
his waiver of that right was made knowingly and intel-
ligently. Specifically, the defendant argue[d] that the
court improperly accepted his waiver of counsel without
first establishing, either through the record or by way
of a proper canvass, that he understood the range of
permissible punishments to which he could be exposed
if he was found to be in violation of probation.” Id., 233.
This court agreed and reversed the judgment of the trial
court. Id. In doing so, this court cited to State v. T.R.D.,
supra, 286 Conn. 202–203, for the well settled principles
regarding the constitutional right of an accused to rep-
resent himself; State v. Woods, supra, 238–39; and,
as we have noted, our Supreme Court, in State v. Con-
nor, supra, 292 Conn. 532, found T.R.D. to be “equally
applicable” to a violation of probation case. In Woods,
this court also cited to Connor for the proposition that
“minimum constitutional requirements must be satis-
fied before a defendant will be deemed to have waived his
right to counsel.” (Internal quotation marks omitted.)
State v. Woods, supra, 241–42.
In Woods, this court stated further: “Although a valid
waiver of counsel must be made with an appreciation for
the potential range of punishment faced, the defendant
‘does not possess a constitutional right to a specifically

State v. Lewis
formulated canvass [with respect to this inquiry]. His
constitutional right is not violated as long as the court’s
canvass, whatever its form, is sufficient to establish that
the defendant’s waiver was voluntary and knowing. . . .
In other words, the court may accept a waiver of the right
to counsel without specifically questioning a defendant
on each of the factors listed in Practice Book § [44-3]
if the record is sufficient to establish that the waiver is
voluntary and knowing.’ . . . State v. Diaz, 274 Conn.
818, 831, 878 A.2d 1078 (2005).” (Emphasis in original.)
State v. Woods, supra, 158 Conn. App. 239–40. After a
thorough review of the record, this court in Woods was
not left “with sufficient assurance that the defendant
understood the range of permissible punishments he
faced if he were found to be in violation of his probation”
and, thus, reversed the judgment and remanded the case
for a new violation of probation hearing. Id., 247.
In the present case, the state contends that the know-
ing, intelligent, and voluntary standard for waiver of a
constitutional right should not apply because a violation
of probation proceeding is not one “for the determination
of guilt or innocence.” See State v. Morel-Vargas, supra,
343 Conn. 260 (“[t]he standard for an effective waiver
of a constitutional right related to the procedure for the
determination of guilt or innocence, such as the right to
testify in one’s own defense, is that it must be knowing
and intelligent, as well as voluntary” (internal quotation
marks omitted)); see also Johnson v. Zerbst, supra, 304
U.S. 464. The state’s contention, however, is undermined
by Connor, Owens, and Woods, all of which applied that
standard in a violation of probation proceeding, albeit
with respect to the waiver of the right to counsel. See
also State v. Schlosser, 211 Conn. App. 143, 151, 271
A.3d 1074 (record reflected that defendant’s admission
to violation of probation was knowing and voluntary),
cert. denied, 343 Conn. 923, 275 A.3d 212 (2022).
Our conclusion also is supported by federal case law
concerning constitutional rights afforded to defendants
in violation of probation cases. The constitutional right

State v. Lewis
to testify in a violation of probation proceeding was at
issue in State v. Dodson, 25 F.3d 385 (6th Cir. 1994).
In that case, the defendant claimed “that he was denied
due process because the district court prohibited him
from testifying at the final revocation hearing through
direct examination.” Id., 387. The United States Court of
Appeals for the Sixth Circuit agreed with the defendant
that, under the circumstances of his case, “his inability
to testify in response to questions posed by his attorney
violated due process.” Id., 388. As the court explained:
“The [f]ifth [a]mendment provides that no person shall be
deprived of liberty without due process of law. Although
revocation of probation is not part of a criminal prosecu-
tion, and thus the full panoply of due process protections
accorded a defendant in such a proceeding do not apply
to a revocation proceeding, the loss of freedom embodied
in the revocation of probation constitutes a deprivation
of a defendant’s liberty. . . . Consequently, a defendant’s
probation may not be revoked without first according the
defendant due process.” (Citations omitted.) Id. Notably,
the court stated in its decision that “[a] waiver of a con-
stitutional right, particularly one involving individual
liberty, must be knowingly and intelligently given.”
(Internal quotation marks omitted.) Id., 390.
In United States v. Correa-Torres, 326 F.3d 18, 20
(1st Cir. 2003), the United States Court of Appeals for
the First Circuit decided what requirements must be
met when a probationer or parolee waives his right to a
revocation hearing under rule 32.1 of the Federal Rules
of Criminal Procedure.17 The court began by noting that,
“[a]lthough revocations of probation, parole, or super-
vised release are not considered part of a criminal pros-
ecution, they nevertheless entail a loss of freedom and
a deprivation of liberty.” Id., 22. The court concluded:
“In our system of criminal justice, most rights can be
waived. . . . The rights enumerated in [r]ule 32.1 are
no exception. As a general proposition, however, the
waiver of virtually any right closely affecting individual
17We note that rule 32.1 (b) (2) of the Federal Rules of Criminal Pro-
cedure embodies the due process requirements that must be afforded

State v. Lewis
liberty must be knowingly and voluntarily made. . . .
Because adherence to the processes prescribed by [r]ule
32.1 is instrumental to the fair and efficient operation
of revocation proceedings, we hold that a waiver of the
rights conferred thereunder cannot be effective unless
that waiver is made both knowingly and voluntarily.”
(Citations omitted; emphasis added.) Id.
In its appellate brief, the state relies on federal case
law pertaining to rule 11 of the Federal Rules of Criminal
Procedure, which governs the obligations of a trial judge
before accepting a plea of guilty or nolo contendere,18
and Boykin v. Alabama, supra, 395 U.S. 242–44, in
which the United States Supreme Court held that due
process requires that a criminal defendant’s guilty plea
be entered knowingly and intelligently after a canvass by
the court. Specifically, the state contends that “multiple
circuit courts have held that a voluntariness colloquy
mandated by [r]ule 11 . . . and the due process standard
established in Boykin . . . which is required when a court
accepts a defendant’s guilty plea at a criminal trial, is not
constitutionally required in a revocation proceeding.”
Although the state relies on this case law primarily in
support of its claim that a court is not required to con-
duct an on-the-record voluntariness colloquy regarding
a defendant’s waiver of the right to testify in a violation
of probation proceeding, which we will address in part III
to a probationer or parolee set forth in Gagnon v. Scarpelli, supra, 411
U.S. 782, and Morrissey v. Brewer, supra, 408 U.S. 489.
Specifically, rule 32.1 (b) (2) provides: “Unless waived by the person,
the court must hold the revocation hearing within a reasonable time in
the district having jurisdiction. The person is entitled to:
“(A) written notice of the alleged violation;
“(B) disclosure of the evidence against the person;
“(C) an opportunity to appear, present evidence, and question any
adverse witness unless the court determines that the interest of justice
does not require the witness to appear;
“(D) notice of the person’s right to retain counsel or to request that
counsel be appointed if the person cannot obtain counsel; and
“(E) an opportunity to make a statement and present any information
in mitigation.” Fed. R. Crim. P. 32.1 (b) (2).
See also General Statutes (Rev. to 2023) § 53a-32.
18See footnote 13 of this opinion.

State v. Lewis
of this opinion, to the extent the state relies on this case
law to support an inference that a waiver of the right to
testify at a violation of probation proceeding need not
be knowing, intelligent, or voluntary, we conclude that
any such reliance is misplaced.
The federal case law relied on by the state addresses
the issue of whether the procedures and protections that
must be followed when a defendant in a criminal case
enters a guilty plea also apply when a defendant admits
to a violation of probation. In addressing that question
in United States v. Segal, 549 F.2d 1293, 1296 (9th
Cir.), cert. denied, 431 U.S. 919, 97 S. Ct. 2187, 53 L.
Ed. 2d 231 (1977), the United States Court of Appeals
for the Ninth Circuit first concluded that rule 11, which
concerns the taking of a plea and not the imposition of
sentence or the revocation of probation, was inapplicable
to a violation of probation proceeding. The court next
addressed whether the Boykin protections should be
extended “so that the record would show a voluntary
and intelligent waiver of the rights . . . forfeited by [an
admission to a] violation of . . . probation.” Id., 1298.
The court declined to extend the Boykin protections,
explaining that Boykin “required an affirmative show-
ing on the record that a plea of guilty was knowing and
voluntary because the plea is itself a conviction”; id.;
and an admission to a probation violation “is not the
equivalent of a guilty plea . . . .” Id., 1300. The court also
explained that admissions of probation violations do not
end the controversy, as a court must still decide whether
a revocation of probation is warranted, and admissions,
thus, do not automatically trigger sentencing. See id.
The court further stated: “[I]t is questionable to what
extent, if any, the three constitutional rights protected
by Boykin19 are enjoyed by [the defendant] at the revo-
19In Boykin, the court explained that “[s]everal federal constitutional
rights are involved in a waiver that takes place when a guilty plea is
entered in a state criminal trial. First, is the privilege against compulsory
self-incrimination guaranteed by the [f]ifth [a]mendment and applicable
to the [s]tates by reason of the [f]ourteenth [amendment]. . . . Second,
is the right to trial by jury. . . . Third, is the right to confront one’s
accusers.” (Citations omitted.) Boykin v. Alabama, supra, 395 U.S. 243.

State v. Lewis
cation proceeding”; (footnote added) id., 1298; as the
defendant, at the probation violation hearing, had “at
best an attenuated confrontation right, a limited self-
incrimination privilege and no right to jury trial . . . .”
Id., 1299. Notably, the court in Segal specifically stated
that the defendant did “not claim that she was denied
any of the rights described in Gagnon . . . .” Id., 1297.
Subsequent to Segal, many federal circuit courts of
appeals similarly have declined to extend the require-
ments of rule 11 of the Federal Rules of Criminal Pro-
cedure and Boykin to an admission to a violation of
probation. In United States v. Pelensky, 129 F.3d 63
(2d Cir. 1997), for example, the United States Court of
Appeals for the Second Circuit held that “due process of
law does not require a court to elicit a formal waiver [of
the type required in rule 11 and Boykin] from a defendant
who has admitted to violating the terms of probation
or supervised release.” Id., 68; see also United States v.
Melton, 782 F.3d 306, 312 (6th Cir. 2015) (rule 11 is not
applicable to proceedings to revoke supervised release);
United States v. Rapert, 813 F.2d 182, 185 (8th Cir.
1987) (“[rule 11] and the requirements of Boykin . . .
are not applicable to a probation revocation hearing”);
United States v. Stehl, 665 F.2d 58, 60 (4th Cir. 1981)
(“[r]ule 11 has no application to probation revocation
proceedings”); United States v. Johns, 625 F.2d 1175,
1176 (5th Cir. 1980) (rule 11 is not applicable to violation
of probation hearing).
Given that the present case does not involve the entry
of a guilty plea and that the three constitutional rights
protected by Boykin are not at issue in this appeal, which
also does not involve an admission to a violation of pro-
bation, we find the state’s reliance on this case law to be
misplaced. Moreover, and significantly, even though
these cases hold that the procedural protections of rule
11 of the Federal Rules of Criminal Procedure and Boykin
do not apply to admissions to violations of probation and
that no specific canvass is required with respect to such
admissions, federal courts nonetheless require those

State v. Lewis
admissions to be made knowingly and voluntarily. See
United States v. Massey, Docket Nos. 22-2184-cr and
22-2628-cr, 2024 WL 1266347, *1 (2d Cir. March 26,
2024) (When a defendant wants to admit that he has
violated the terms of his supervised release, the District
Court need not engage in “ ‘a formal, on-the-record collo-
quy of the type required by [rule 11]’ . . . . If a defendant
wishes to waive the revocation hearing and admit to a
violation, the [D]istrict [C]ourt must ensure that the
waiver is knowing and voluntary.” (Citations omitted.));
United States v. Melton, supra, 782 F.3d 311 (“accused’s
admission or waiver [at violation of probation proceeding]
need only be knowing and voluntary under the totality
of the circumstances”); United States v. Correa-Torres,
supra, 326 F.3d 22 (rights enumerated in rule 32.1 of
Federal Rules of Criminal Procedure apply to violation
of probation proceedings, and, for waiver of those rights
to be effective, waiver must be made knowingly and
voluntarily); State v. Pelensky, supra, 129 F.3d 68 n.9
(conclusion that court is not required to elicit formal
waiver from defendant who had admitted to violating
probation does not change fact that “defendant’s waiver
must actually be knowing and voluntary”); see also State
v. Schlosser, supra, 211 Conn. App. 151 (record reflected
that defendant’s admission to violation of probation was
knowing and voluntary).20
Accordingly, we conclude that due process requires
that a defendant’s waiver of the constitutional right to
testify in a violation of probation proceeding be knowing,
intelligent, and voluntary.
20Federal case law demonstrates that violation of probation proceedings
are governed by rule 32.1 (b) (2) of the Federal Rules of Criminal Pro-
cedure; United States v. Massey, supra, 2024 WL 1266347, *1; which,
as we have stated, embodies the due process requirements that must be
afforded to a probationer or parolee set forth in Gagnon v. Scarpelli,
supra, 411 U.S. 782, and Morrissey v. Brewer, supra, 408 U.S. 489,
including the right to be heard on one’s own behalf. See footnote 17 of
this opinion. A waiver of the rights enumerated in rule 32.1 “cannot be
effective unless that waiver is made both knowingly and voluntarily.”
United States v. Correa-Torres, supra, 326 F.3d 22.

State v. Lewis
III
Having concluded that a defendant’s waiver of the
constitutional right to testify in a violation of probation
proceeding must be knowing, intelligent, and voluntary,
we next address what is constitutionally required for
such a waiver to be valid. To resolve this question, we
look to Morel-Vargas for guidance.
In addressing this question in the context of a criminal
trial, the court in Morel-Vargas held that “a trial court is
not constitutionally required to obtain an on-the-record
waiver from the criminal defendant, himself.” State
v. Morel-Vargas, supra, 343 Conn. 263–64. The court
also “decline[d] to exercise [its] supervisory authority
to create a per se rule requiring trial courts to canvass
criminal defendants in all cases because there may be
circumstances under which a canvass is inadvisable.”
Id., 269. It necessarily follows, and we agree with the
state, that, if no such per se rule requiring a canvass
exists in criminal cases, the trial court in the present
violation of probation case was not required to conduct
an on-the-record canvass of the defendant regarding the
waiver of his right to testify.
Instead, as we previously have indicated in this opinion,
the court in Morel-Vargas stated that its “task . . . [was] to
determine whether the totality of the record furnishe[d]
sufficient assurance of a constitutionally valid waiver of
the right to [testify]. . . . [Such an] inquiry is dependent
[on] the particular facts and circumstances surrounding
[each] case, including the background, experience, and
conduct of the [defendant]. . . . In examining the record
. . . [an appellate court] will indulge every reasonable
presumption against waiver of fundamental constitu-
tional rights and . . . [will] not presume acquiescence in
the loss of fundamental rights. . . . In addition, a waiver
of a fundamental constitutional right is not to be pre-
sumed from a silent record.” (Citation omitted; internal
quotation marks omitted.) Id., 260.
After applying that standard and concluding that
the defendant’s waiver of his right to testify was

State v. Lewis
constitutionally adequate under the circumstances of
that case, the court in Morel-Vargas went a step further
and “exercise[d] [its] supervisory authority prospectively
to require a trial court, when presiding over a criminal
trial, to either canvass the defendant prior to his waiver
of his right to testify or, alternatively, to inquire of
defense counsel directly to determine whether counsel
has adequately advised the defendant regarding the
waiver of his right to testify. This latter option—a judi-
cial inquiry of defense counsel—shall be used, however,
only when defense counsel advises the trial court that
counsel believes that a direct canvass carries the risk of
inadvertently interfering with a decision made by the
defendant after extensive conversations with counsel
regarding trial strategy.
“Although we do not prescribe the exact form that this
canvass of a criminal defendant or inquiry of defense
counsel should take, both inquiries must be sufficient
to satisfy the trial court, at minimum, that (1) defense
counsel informed the defendant that the defendant has
the right to testify, as well as the right not to testify,
and should the defendant choose not to testify, the fact
finder may not draw any adverse inferences from the
defendant’s choice not to testify, (2) defense counsel
explained to the defendant that the right to testify
belongs to the defendant alone, and no one, including
defense counsel, can prevent the defendant from tes-
tifying, (3) the defendant has consulted with counsel
in making the decision not to testify, and counsel has
discussed with the defendant the advantages and disad-
vantages of testifying, (4) the defendant has had enough
time to discuss with counsel the right to testify and the
strategic decision not to testify, and the defendant has
understood the information counsel has provided, and (5)
the defendant has personally waived the right to testify
knowingly, intelligently and voluntarily.” (Emphasis
added.) Id., 270–71.
In the present case, the defendant contends that the
court’s prospective rule in Morel-Vargas applies to this

State v. Lewis
violation of probation case and that the trial court’s
failure to adhere to the requirements of the rule, thus,
was improper. We do not agree. In establishing a rule
for future cases pertaining to the waiver of the right to
testify, our Supreme Court in Morel-Vargas clearly lim-
ited its prospective rule to “a trial court, when presiding
over a criminal trial . . . .” (Emphasis added.) Id., 270.
Consequently, it was not improper for the trial court in
the present case not to apply that rule in the context of
this violation of probation proceeding.
Guided by the standard applied by the court in Morel-
Vargas in reaching its conclusion that no constitutional
violation existed in that case, we conclude that, for a
defendant’s waiver of his right to testify in a violation
of probation proceeding to be valid constitutionally, the
record must furnish sufficient assurance that the defen-
dant’s waiver was knowing, intelligent, and voluntary.
That determination must be made on the basis of the
totality of the record. Certainly, although no formal
canvass is required,21 the most prudent approach for
21We decline the defendant’s invitation to exercise our supervisory
authority to require “a canvass . . . in all future probation proceedings,”
which, as we have indicated, would be contrary to the holding in Morel-
Vargas. See State v. James K., 209 Conn. App. 441, 481, 267 A.3d 858
(2021) (“[i]t is well settled that [a]ppellate courts possess an inherent
supervisory authority over the administration of justice” (internal
quotation marks omitted)), aff’d, 347 Conn. 648, 299 A.3d 243 (2023).
At this juncture, we also decline to exercise our supervisory authority
over the administration of justice to craft a prospective rule similar to
the one in Morel-Vargas for violation of probation cases. The United
States Supreme Court in Morrissey admonished against creating “an
inflexible structure for parole revocation procedures”; Morrissey v.
Brewer, supra, 408 U.S. 490; or equating such procedures with criminal
prosecutions. Id., 489. In State v. Shakir, 130 Conn. App. 458, 22 A.3d
1285, cert. denied, 302 Conn. 931, 28 A.3d 345 (2011), this court stated:
“[A] strict interpretation of the Morrissey standards runs contrary
to the spirit of flexibility with which the Supreme Court promulgated
the Morrissey and [Gagnon] . . . due process requirements. . . . [D]ue
process is flexible and calls for those procedural protections that the
particular situation demands.” (Internal quotation marks omitted.) Id.,
468. We believe that our decision today, which requires trial courts to
ensure that a defendant’s waiver of the right to testify at a violation
of probation proceeding has been made knowingly, intelligently, and

State v. Lewis
trial courts would be to canvass a defendant regarding a
waiver of the right to testify. See id., 250 (“we acknowl-
edge that an on-the-record canvass of a defendant is the
best practice to ensure that the defendant’s waiver of his
constitutional right to testify is made knowingly, intel-
ligently and voluntarily”). Alternatively, trial courts are
free to utilize the factors set forth in Morel-Vargas, as
previously discussed in this opinion, as a guideline for
ensuring that a defendant’s waiver of the right to tes-
tify at a violation of probation proceeding is knowing,
intelligent, and voluntary. In other words, in whatever
form—a canvass performed by the court, a representa-
tion by defense counsel that the defendant waived his
right to testify, together with coincident silence of the
defendant, or something else in the record—the record in
a violation of probation hearing must provide sufficient
assurance that the defendant knowingly, intelligently,
and voluntarily waived his constitutional right to testify.
IV
Next, we must determine whether the record in the
present case demonstrates that the defendant’s waiver
of his right to testify was knowing, intelligent, and
voluntarily, sufficiently safeguards a defendant’s constitutional right
to testify in a violation of probation proceeding, without the need for a
formalistic rule setting forth how that may be accomplished. See State
v. Connor, supra, 292 Conn. 518–19 n.23 (“[o]ur supervisory powers
are invoked only in the rare circumstance where [the] traditional pro-
tections are inadequate to ensure the fair and just administration of
the courts” (internal quotation marks omitted)). In other words, in a
violation of probation proceeding, a defendant’s waiver of his right to
testify is valid constitutionally if “the totality of the record furnishes
sufficient assurance of a constitutionally valid waiver of the right to
[testify].” (Internal quotation marks omitted.) State v. Morel-Vargas,
supra, 343 Conn. 260; see, e.g., State v. T.R.D., supra, 286 Conn.
203–204 (explaining that, although Practice Book § 44-3 requires trial
court, before accepting defendant’s waiver of counsel, to “conduct an
inquiry in accordance with § [44-3], in order to satisfy itself that the
defendant’s decision to waive counsel is knowingly and intelligently
made . . . the court may accept a waiver of the right to counsel without
specifically questioning a defendant on each of the factors listed in [§
44-3] if the record is sufficient to establish that the waiver is voluntary
and knowing” (citations omitted; internal quotation marks omitted)).

State v. Lewis
voluntary. We conclude that it does not and that the
defendant is entitled to a new violation of probation
hearing.
A brief discussion of the circumstances in Morel-Var-
gas, in which our Supreme Court found that the defen-
dant’s waiver of his right to testify was constitutionally
valid, is helpful to our analysis. The record in Morel-
Vargas indicated that the defendant had had “ ‘extensive
conversations’ with his counsel regarding his decision
whether to testify,” and that he was provided with “an
additional opportunity to exercise his right after view-
ing and hearing all of the state’s evidence.” Id., 267.
Moreover, our Supreme Court noted that “the defendant
was present in court when defense counsel informed the
trial judge that the defendant would not testify, and the
defendant did not express any disagreement or concern
with counsel’s representation, much less any desire to the
contrary. The defendant also was present when the jury
returned and defense counsel indicated that the defense
would ‘rest on the state’s case,’ and the defendant again
remained silent.” Id. As a result, the court concluded that
the record was “devoid of any indication that the defen-
dant’s silence was the product of anything other than a
knowing, intelligent and voluntary waiver. Accordingly
. . . defense counsel’s in-court representation that the
defendant waived his right to testify, together with the
defendant’s coincident silence, was sufficient to satisfy
the constitutional requirement for a valid waiver of the
defendant’s right to testify.” Id.
In contrast to Morel-Vargas, defense counsel in the
present case did not make any representations to the
court about the defendant’s decision not to testify, nor
did the court inquire, and the record is devoid of any
indications that defense counsel had discussions with
the defendant regarding his right to testify and the
waiver of that right. Indeed, the record shows only that
defense counsel had informed the court that she had
two witnesses who intended to testify, and, when their
testimony concluded, she told the court that she had

State v. Lewis
“[n]othing further” and did not make any statement to
the effect that the defendant had decided not to testify.
The bare record in this case does not provide this court
with sufficient assurance that the defendant’s waiver of
his right to testify was knowing, intelligent, and volun-
tary. See State v. Morel-Vargas, supra, 343 Conn. 260
(“a waiver of a fundamental constitutional right is not
to be presumed from a silent record” (internal quota-
tion marks omitted)). Consequently, the defendant has
established the existence of a constitutional violation
under the third prong of Golding.
Having reached that conclusion, we turn next to Gold-
ing’s fourth prong, which provides: “[I]f subject to harm-
less error analysis, the state has failed to demonstrate
harmlessness of the alleged constitutional violation
beyond a reasonable doubt. . . . State v. Golding, supra,
213 Conn. [240] . . . .” (Citation omitted; internal quo-
tation marks omitted.) State v. Morel-Vargas, supra,
343 Conn. 253. The defendant contends that the con-
stitutional violation concerning the waiver of his right
to testify “constitutes structural error that eliminates
the need for harmless error analysis.”22 He argues that
Rock v. Arkansas, supra, 483 U.S. 52, “made clear that
the right to testify is among those rights that ‘are essen-
tial to due process of law in a fair adversary process,’ ”
especially given the court’s statement in Rock that the
right to testify in one’s own defense is “ ‘[e]ven more
fundamental to a personal defense’ than the right to self-
representation.”23 The state counters that the defendant
22See State v. Christopher R., supra, 222 Conn. App. 784 n.10 (“Struc-
tural errors are those which ‘by their very nature cast so much doubt
on the fairness of the trial process that, as a matter of law, they can
never be considered harmless. . . . These are structural defects in the
constitution of the trial mechanism, which defy analysis by [harmless
error] standards. . . . Instead, structural errors require reversal of the
defendant’s conviction and a new trial. . . . Constitutional violations
have been found to be structural, and thus subject to automatic reversal,
only in a very limited class of cases.’ . . . State v. Joseph A., 336 Conn.
247, 264–65, 245 A.3d 785 (2020).”).
23We note that, in State v. Connor, supra, 292 Conn. 487, 533, our
Supreme Court, after determining that the defendant’s right to counsel
in the violation of probation proceeding had been violated, reversed

State v. Lewis
“has failed to demonstrate that a structural error analysis
is applicable to alleged errors at revocation hearings”;
that, even if a structural error analysis applies, the
defendant has failed to demonstrate structural error in
this case; and that the alleged constitutional error was
harmless. We conclude that we need not decide whether
a structural error analysis properly can be applied in a
violation of probation case or whether the constitutional
the trial court’s judgment revoking the defendant’s probation and
remanded the case for a new violation of probation hearing without
conducting a harmless error analysis. In particular, the court stated:
“ ‘The right to counsel is so basic that its violation mandates reversal
even if no particular prejudice is shown and even if there is overwhelm-
ing evidence of guilt’. . . . State v. T.R.D., supra, 286 Conn. 206.
Consequently, the defendant is entitled to a new probation violation
hearing.” State v. Connor, supra, 532–33. This principle set forth in
Connor and T.R.D., both of which involved the denial of the right to
counsel, can be traced back to Rose v. Clark, 478 U.S. 570, 106 S. Ct.
3101, 92 L. Ed. 2d 460 (1986), in which the United States Supreme
Court held: “In Chapman v. California, 386 U.S. [18, 87 S. Ct. 824, 17
L. Ed. 2d 705] (1967), this [c]ourt rejected the argument that errors
of constitutional dimension necessarily require reversal of criminal
convictions. And since Chapman, we have repeatedly reaffirmed the
principle that an otherwise valid conviction should not be set aside if
the reviewing court may confidently say, on the whole record, that the
constitutional error was harmless beyond a reasonable doubt. . . . That
principle has been applied to a wide variety of constitutional errors. . .
. Despite the strong interests that support the harmless-error doctrine,
the [c]ourt in Chapman recognized that some constitutional errors
require reversal without regard to the evidence in the particular case.
[Id., 23 n.8], citing Payne v. Arkansas, 356 U.S. [560, 78 S. Ct. 844,
2 L. Ed. 2d 975] (1958) (introduction of coerced confession); Gideon
v. Wainwright, 372 U.S. [335, 83 S. Ct. 792, 9 L. Ed. 2d 799] (1963)
(complete denial of right to counsel); Tumey v. Ohio, 273 U.S. [510,
47 S. Ct. 437, 71 L. Ed. 749] (1927) (adjudication by biased judge).
This limitation recognizes that some errors necessarily render a trial
fundamentally unfair. The [s]tate of course must provide a trial before
an impartial judge . . . with counsel to help the accused defend against
the [s]tate’s charge . . . . Without these basic protections, a criminal
trial cannot reliably serve its function as a vehicle for determination of
guilt or innocence . . . and no criminal punishment may be regarded as
fundamentally fair. Harmless-error analysis thus presupposes a trial,
at which the defendant, represented by counsel, may present evidence
and argument before an impartial judge and jury.” (Citations omitted;
internal quotation marks omitted.) Rose v. Clark, supra, 576–78. The
present case, unlike Connor and T.R.D., involves the right to testify,
which was not specifically addressed in Rose.

State v. Lewis
violation in this case amounts to structural error because,
even if we apply harmless error analysis, the state has
failed to meet its burden of demonstrating harmlessness
of the constitutional error beyond a reasonable doubt.
Initially, we briefly address the state’s contention
that the defendant has the burden of demonstrating
harm in this case. In support of this assertion, the state
relies on State v. Varszegi, 236 Conn. 266, 673 A.2d 90
(1996). In Varszegi, our Supreme Court held that “the
defendant had the burden of showing likely harm as
a condition precedent to establishing the due process
violation.” (Emphasis added.) Id., 274. We conclude
that Varszegi is inapposite to the present case, in which
we must determine, after having found the existence of
a constitutional violation, whether that violation was
harmful to the defendant. Moreover, our Supreme Court
has differentiated between cases involving general due
process claims and those, like the present case, involving
the violation of a specifically enumerated constitutional
right.24 We conclude that the state has the burden in the
present case of demonstrating that the violation of the
24Specifically, our Supreme Court has explained that, when a defendant
alleges an infringement of “a specifically enumerated constitutional
right, such as the fifth amendment right to remain silent or the sixth
amendment right to confront one’s accusers, and the defendant meets
his burden of establishing the constitutional violation, the burden is
then on the state to prove that the impropriety was harmless beyond
a reasonable doubt.” State v. Payne, 303 Conn. 538, 563, 34 A.3d 370
(2012). As the court in Payne stated: “This allocation of the burden
of proof is appropriate because, when a defendant raises a general due
process claim, there can be no constitutional violation in the absence of
harm to the defendant caused by denial of his right to a fair trial. The
constitutional analysis and the harm analysis in such cases are one and
the same.” Id., 563–64; see State v. Jose R., 338 Conn. 375, 386–87,
258 A.3d 50 (2021) (reaffirming Payne and explaining that, “when a
prosecutor makes improper remarks that violate a defendant’s specifi-
cally enumerated constitutional rights, the constitutional analysis and
the harm analysis are separate and distinct inquiries”); see also State v.
Carpenter, 275 Conn. 785, 832, 882 A.2d 604 (2005) (“[w]here a claim
is of constitutional magnitude, ‘the state has the burden of proving
the constitutional error was harmless beyond a reasonable doubt’ ”),
cert. denied, 547 U.S. 1025, 126 S. Ct. 1578, 164 L. Ed. 2d 309 (2006).

State v. Lewis
defendant’s constitutional right to testify was harmless
beyond a reasonable doubt.
We further conclude that the state has not met that
burden in this case. In the context of a probation violation
proceeding, “[a]n error is harmless if ‘the error did not
affect the . . . court’s selection of the sentence imposed.’ ”
United States v. Reyes-Correa, 81 F.4th 1, 9 (1st Cir.
2023); see also United States v. Barksdale, 98 F.4th 86,
89 (3d Cir. 2024). The state contends that, “based on the
strength of the text messages alone, the defendant can-
not demonstrate that, had he been canvassed, and had
he testified, the trial court would not have found that he
violated probation by a preponderance of the evidence.”
This argument ignores the structure of a violation of
probation proceeding, and the fact that, even if the court
would have found a violation of probation, regardless of
whether the defendant testified, that does not necessarily
mean that the court’s decision revoking the defendant’s
probation and imposing a four year sentence would have
been the same. See United States v. Barksdale, supra,
89 (“the government’s theory shows at most that [the
defendant] would have been found guilty, not that he
would also have gotten the same sentence”); see id., 90
(“We cannot be certain that [the defendant’s] testimony
would have made no difference. Even if his testimony
could have reduced his sentence only slightly, that is
enough to make the error harmful.”); see also United
States v. Havier, 155 F.3d 1090, 1094 (9th Cir. 1998)
(government’s failure to provide adequate notice in vio-
lation of probation proceeding was not harmless when
defendant could have received lower sentence).
Furthermore, the state asserts that, “because the
defendant was represented by counsel, presented mul-
tiple witnesses, admitted documentary evidence, cross-
examined the state’s witnesses, made legal argument
before the court imposed its sentence, and personally
addressed the court before sentencing . . . he exercised
the minimum due process rights afforded to probation-
ers at revocation hearings and cannot demonstrate likely

State v. Lewis
harm.” The state’s list concerns separate rights and
noticeably excludes the “opportunity to be heard in per-
son”; Morrissey v. Brewer, supra, 408 U.S. 489; which,
as discussed, is “[e]ven more fundamental to a personal
defense than the right of self-representation . . . .” Rock
v. Arkansas, supra, 483 U.S. 52; see id. (“the most impor-
tant witness for the defense in many criminal cases is the
defendant himself”). Additionally, “allocutions are not
testimony. Testimony is affirmative evidence, not just
damage control. And testimony happens early enough
to shape the narrative.” United States v. Barksdale,
supra, 98 F.4th 89–90.
Accordingly, we conclude that the defendant is entitled
to a new violation of probation hearing.25
The judgment is reversed and the case is remanded for
a new violation of probation hearing.
In this opinion the other judges concurred.
25In light of this determination, we need not address the defendant’s
alternative claim under the plain error doctrine.