Opinion
No. CR01 197033
March 17, 2006
MEMORANDUM OF DECISION RE MOTION TO WITHDRAW PLEA OF NOLO CONTENDERE
The defendant Victor Paradis has moved to withdraw his nolo contendere plea entered on January 28, 2003. This court heard argument on the motion on December 22, 2005. For the reasons set forth below, the motion is hereby granted.
NATURE OF PRIOR PROCEEDINGS
On August 9, 2001, the defendant was arrested, and was charged in docket numbers CR01-197032, CR01-197033, and CR01-197034, each docket number relating to a Motion to Suppress filed by the defendant.
On July 15, 17 and 19, 2002, a hearing on the defendant's Motion to Suppress was conducted regarding tangible evidence and written and verbal statements. The Motion to Suppress was denied on October 18, 2002. On January 28, 2003, the defendant entered a written nolo contendere plea pursuant to C.G.S. § 54-94a and Practice Book § 61-6. The plea was entered conditioned on the right to take an appeal of the denial of the Motion to Suppress. The plea was entered to the charge of Possession of Narcotics with Intent to Sell, in violation of C.G.S. § 21a-278(a), and referenced docket numbers CR01-197032, CR01-197033, and CR01-197034. The defendant was sentenced on April 16, 2003 to a term of twenty years, execution suspended after twelve years, five years probation. The court set an appeal bond which was posted by the defendant.
The Appellate Court determined that the defendant's claims relating to the initial stop of his vehicle, and the seizure of him and the search of his residence, were not reviewable, and affirmed the judgment of the trial court with regard to the defendant's claim regarding the search of his garage. State v. Paradis, 91 Conn.App. 595 (2005). On October 17, 2005, the defendant filed a Motion to Withdraw Plea of Nolo Contendere, and a hearing on said motion was heard before this court on December 22, 2005.
This court has been provided with certified transcripts of the defendant's plea hearing, sentencing hearing, and remand hearing.
LAW
Pursuant to Practice Book § 39-26, "[a] defendant may not withdraw his or her plea after the conclusion of the proceeding at which the sentence was imposed." Ordinarily, the failure of a defendant to file a motion to withdraw his plea before the conclusion of sentencing proceedings precludes review of any claimed infirmities in the acceptance of the plea. State v. Figueroa, 89 Conn.App. 368, 370 (2005). An exception to this rule occurs when the defendant asserts a constitutional claim that satisfies the requirements of State v. Golding, 213 Conn. 233, 239-40 (1989); Figueroa, supra at 370.
Under Golding, supra, ". . . a defendant can prevail on a claim of constitutional error not preserved at trial only if all the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged violation clearly exists and clearly deprived the defendant of a fair trial, and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt . . ."
The defendant's claim is that he was denied his due process rights by virtue of the circumstances present at the entry of his conditional nolo plea and sentencing. Specifically, he claims that his plea was not entered voluntarily and intelligently in that the actual terms of the plea agreement were incompletely and erroneously defined at that time, and that his decision to forgo one of two sentencing options proposed at the time of his plea was impacted by those circumstances.
Since "[a] defendant pleading guilty to a plea agreement waives a number of fundamental constitutional rights . . . the circumstances surrounding the plea agreement must comport with due process to ensure the defendant's understanding of its consequences . . . The notion of fundamental fairness embodied in due process implies that whatever promises the government makes in the course of a plea agreement to induce a guilty plea must be fulfilled." State v. Rosado, 92 Conn.App. 823, 826-27 (2006).
"Thus, it is axiomatic that the trial court judge bears an affirmative, nondelegable duty to clarify the term of a plea agreement." Id. at 827. "Due process requires that a plea be entered voluntarily and intelligently. Because every valid guilty plea must be demonstrably voluntary, knowing, and intelligent, we require the record to disclose an act that represents a knowing choice among available alternative courses of action, an understanding of the law in relation to the facts, and sufficient awareness of the relevant circumstances and likely consequences of the plea. A determination as to whether a plea has been knowingly and voluntarily entered entails an examination of all of the relevant circumstances." State v. Turner, 67 Conn.App. 708, 715 (2002).
The following colloquy occurred at the time of the defendant's plea on January 28, 2003:
The Court: ". . . And it's also my understanding that Attorney Cardwell is going to be appealing the denial of the motion to suppress that had been decided by Attorney Owens (sic). But based on that you filed this written plea of nolo contendere, is that true, sir?
The Defendant: Yes, your honor. (Transcript pg. 4)
The Court: All right. And you understand that he's doing that to preserve right to appeal the decision in the motion to suppress?
The Defendant: Yeah, and not taking it to trial. (Transcript pg. 6)
The Court: Okay. All right. So he told you the offer is twelve years, you wish it was less.
The Defendant: Of course.
The Court: But he's repeating to you what the court has said, correct?
The Defendant: Yeah, to keep my appeal. Yes, I understand. (Transcript pg. 7-8)
The Court: This statute actually has some really crazy provisions, I guess, is the only way to explain it. It's 21a-278(a).
The Defendant: Yeah, my lawyer has gone over that with me.
The Court: It can give you a maximum term of life imprisonment.
The Defendant: I mean, I feel it's unfair, but I . . .
The Court: But that's what the law is. I just want you to understand that.
(Transcript pg. 9.)
The Court: . . . and if you were convicted, that judge could sentence you up to a maximum term of life imprisonment with no less than five years, which is the minimum mandatory. Do you understand that?
The Defendant: Yes and no. I mean, of course I understand that. — I understand.
The Court: That's what the law is. I'm just explaining to you what the law is, Mr. Paradis.
The Defendant: Yeah. I could get anywhere from five years to life imprisonment.
(Transcript pg. 10.)
The Court: Okay. And do you understand the agreement here is a flat twelve years to serve, do you understand that?
The Defendant: Yes, your honor.
The Court: Aside from that agreement, did anybody promise you anything else?
The Defendant: Just the right to appeal my case. (Transcript pg. 10-11.)
The following colloquy occurred on April 16, 2003:
Mr. Cardwell: . . . [This is an agreed recommendation in the sense that the defendant had two choices. One is to accept this — the recommendation of 12 years under the plea that was offered him, or ask for right to argue and withdraw his appeal, or not proceed with an appeal . . . But more important now, your honor is the issue of bond and this is why I filed my notice of intent to appeal . . . we do intend to appeal and that's why we've given up the right to have a right to argue for a lesser sentence . . .
(Transcript pg. 5.)
The Court: All right. Now, what are we doing with the other files that are on B?
Mr. Rotiroti: They are additional sales and things of that nature?
The Court: Additional possessions and a failure to renew an operator's license.
Mr. Rotiroti: Those cases can be nolled. (Transcript pg. 18.)
The Appellate Court, supra, noted that three separate dockets were generated as the result of police activity regarding the defendant. Those dockets are reflected on the defendant's written nolo contendere plea. Docket number 197032 originated from the initial stop of the defendant and subsequent discovery of cocaine sticking out of his pocket. The state nolled those charges in unilateral action on the date of the defendant's sentencing. Docket number 197034 was premised on the results of the search of the defendant's residence on Lowell Street. The state also nolled those changes in unilateral action on the date of the defendant's sentencing. Paradis, supra at 599-600.
Subsequent to the filing of the defendant's appeal, the state filed a motion to the Appellate Court to remand the case to the trial court for a determination of whether the ruling on the defendant's motion to suppress was dispositive. The motion was granted, and the trial court found that with regard to Docket 197033, the ruling was dispositive. In comments during the October 6, 2004 remand hearing, the court observed, however, that although the other issues referenced in docket numbers 197032 and 197034 were not dispositive, "I would hope that the appellate court would address everything because it seems that everything is interconnected . . ." (Transcript pg. 12.)
The following colloquy occurred on October 6, 2004:
The Court: . . . Here's what my clerk has just indicated to me, Mr. Cardwell. The other two files were nolled. He only pled on one file. So how can he be appealing all three files?
Mr. Cardwell: Because the issue came from all three files. That's what gets so complicated.
The Court: . . . He pled to one file. The other two files are nolled. They no longer exist.
The Court: How can you be appealing, Attorney Cardwell, two cases that the state has nolled?
Mr. Cardwell: I saw the appeal as it was addressing the three issues and the three issues were interrelated. (Transcript pg. 17.)
Mr. Rotiroti: There is only one case that is in existence. (Transcript pg. 18.)
Defense counsel stated during the October 6, 2004 remand hearing that ". . . if the appellate court limits itself to just that issue [Docket 197033], and does not address the issue of the initial stop, then if the defendant does not prevail on that issue, then I think the defendant will want to perhaps make a motion to withdraw his plea so that he can address further then other issues that are interrelated . . ." (Transcript pg. 6.) Neither the court, nor the state, responded to the statement of defense counsel that a Motion to Withdraw Plea would be contemplated. The court in Paradis, supra, found that the issues raised in docket numbers 197032 and 197034 were not reviewable since they were not raised properly pursuant to C.G.S. § 54-94a. Noting that the charges in two of the three docket numbers pending against the defendant were nolled, the court stated that "despite the multiple docket numbers and charges against the defendant, the only crime that the defendant was found guilty of by virtue of his nolo contendere plea, and received a sentence for, was possession of narcotics with intent to sell. That judgment of conviction is the only judgment properly before us." Paradis, supra at 600.
The defendant's plea canvass does not reflect that he was told that at the time of sentencing, two of the three docket numbers pending against him would be nolled by the state, an action that contributed to his inability to have appellate review of all issues raised in his Motion to Suppress. Indeed, it appears that the nolle was merely the result of an afterthought following the sentencing hearing, and that the parties did not consider its impact in any way. That action, however inadvertent, had significant consequences for the defendant. The plea agreement, as explained to the defendant, provided him with the ability "to preserve his right to appeal the decision on the Motion to Suppress." The promise made to the defendant at the time of the plea, as reflected in the written plea of nolo contendere which references three docket numbers as well as the court's canvass, was that all issues raised in connection with these "interconnected" matters would be addressed by the Appellate Court. At no time was the defendant told that his right to appeal a particular issue would be contingent on the trial court's finding that such issue was dispositive, nor was he told that the entry of a nolle would effectively extinguish his right to appeal.
In addition, the defendant had been presented prior to the entry of the plea with two separate plea bargain alternatives. One alternative was "12 years with a right to argue and withdraw his appeal," and the other alternative was what the court characterized as a "flat 12 years and the right to appeal." "Our Supreme Court has held that a plea agreement is akin to a contract and that the well established principles of contract law can provide guidance in the interpretation of a plea agreement . . . the primary goal of contract interpretation is to effectuate the intent of the parties [b]ecause of the substantial constitutional interests implicated by plea agreements, the state must bear the burden for any lack of clarity in the agreement and ambiguities should be resolved in favor of the defendant." Rosado, supra at 827-28.
In this case; the defendant was not told when he entered his plea that at the time of sentencing the state would enter a nolle on two of three docket numbers pending against him. The defendant did not know that the effect of that action would be to preclude appellate review of issues raised in his Motion to Suppress. Further, the defendant was not informed that specific findings were required by the trial court to obtain appellate review of each of the specific issues raised in his Motion to Suppress. The defendant did not understand, therefore, that he was waiving his right to appeal, despite his conditional nolo plea, by the above-described defects in the proceedings. The record is consistent with regard to the defendant's motivation in accepting the plea option at issue, rather than the alternative proposal. Therefore, the defendant's plea cannot be considered knowing or intelligent in that sense. State v. Turner, 67 Conn.App. 708, 715 (2002). The court must resolve any ambiguity in favor of the defendant. Had the defendant known that one choice of alternative plea bargains could not be fulfilled, it is unlikely that he would have selected that option. Certainly, choosing to have the right to argue for a lesser sentence would be more advantageous than choosing to pursue a nonexistent right to appeal. Simply put, the promises made to the defendant at plea could not be kept.
While the state's argument is not without appeal, in the final analysis, this court is not persuaded that harmlessness has been established beyond a reasonable doubt. Although the state points out that the defendant is in the same position now he would have been in had he been successful in only two of the three search issues raised on appeal, in the court's view, the crux of the issue remains the absence of a knowing and intelligent choice among viable plea options. The plea was void ab initio. The defendant in reality never had what was promised to him at the time of plea: separate and viable sentencing alternatives.
The court also observes that the defendant was told at his plea hearing that the court would impose a "flat twelve years to serve" at the time of sentencing. The sentence actually imposed, however, was 20 years execution suspended after 12 years, three years probation. The imposed sentence was a different and longer sentence than what was promised to the defendant at plea. See State v. Schaefler, 5 Conn.App. 378 (1985); State v. Irala, 68 Conn.App. 499 (2002); Practice Book § 39-10. This circumstance may provide an additional basis to question whether the plea was entered voluntarily and intelligently. State v. Scales, 82 Conn.App. 126 (2004); State v. Turner, supra.
For the foregoing reasons, the defendant's Motion to Withdraw Plea is granted.