Opinion
No. CR96-150477
July 29, 2004
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO WITHDRAW GUILTY PLEA
1. FACTS AND PROCEDURAL HISTORY
On or about June 28, 1996, the defendant was arrested and charged with the crime of assault in the first degree. On July 1, 1996, the defendant was arraigned and bond was set in the amount of $10,000.00 with surety. On September 19, 1996, the defendant pleaded not guilty and elected a trial by jury.
On April 25, 1997, the state filed a substitute information charging one count of assault in the second degree. On that same day the defendant pleaded guilty to the substitute information, waived a pre sentence investigation and pursuant to a plea agreement, the court (Cofield, J.) imposed a sentence of one year incarceration.
While the present case was pending in geographical area #12, the defendant also had charges of kidnapping and sexual assault in the first degree pending in the Judicial District of Hartford at Hartford. On November 11, 1997, the defendant was convicted of these charges and sentenced to twelve years incarceration. Sometime on or after August 1, 2002, the defendant's convictions of kidnapping and sexual assault were vacated. Thereafter the state nolled those charges.
Based upon the conviction of assault in the second degree in the present case, on or about August 27, 2003, the defendant, a foreign national, was ordered deported to his country of origin. On or about February 27, 2004, the defendant filed a motion in the present case to withdraw his plea of guilty to the charge of assault in the second degree.
On April 21, 2004, a hearing was held on the defendant's motion to withdraw. After considering the arguments of counsel and the brief filed by the defendant, the court hereby denies the motion.
II. DISCUSSION
The defendant claims that his guilty plea was not entered knowingly and voluntarily in that the court never advised the defendant of the elements of the crime of which he was convicted and the record of the proceedings does not show that the defendant's attorney ever advised him of the elements of assault in the second degree. In addition the defendant claims that his attorney's representation may have been ineffective and that prior to the imposition of sentence the court never allowed the defendant his right to allocution.
A. Voluntariness of the defendant's plea
The United States Supreme Court delineated the requirements of a valid guilty plea in Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S.Ct 1709, 23 L.Ed.2d 274 (1969). " Boykin requires that before accepting a defendant's plea, a trial court must inform him of three core constitutional rights: his right to be free of compulsory self-incrimination, his right to a jury trial and his right to confront his accusers." State v. Benitez, 67 Conn.App. 36, 42 (2001) cert. denied 259 Conn. 922 (2002). Practice Book § 39-19 imposes additional requirements upon the trial court including a requirement that the court advise the defendant of the nature of the charge to which the plea is offered.
Sec. 39-19 — Acceptance of Plea; Advice to Defendant
The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands: (1) The nature of the charge to which the plea is offered; (2) The mandatory minimum sentence, if any; (3) the fact that the statute for the particular offense does not permit the sentence to be suspended; (4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and (5) The fact that he or she has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.
Practice Book § 39-27 allows a defendant to withdraw a guilty plea on the grounds of the court's failure to comply with the provisions of § 39-19. Irrespective of a court's compliance with § 39-19, however, in no event may a plea be withdrawn after the conclusion of the sentencing hearing. It is uncontroverted that the present defendant has been sentenced and that at no time prior to the imposition of this sentence did the defendant move to withdraw his guilty plea. Thus the provisions of Practice Book §§ 39-26 and 27 are inapplicable here and afford no relief.
Practice Book § 39-26.
Notwithstanding the limitation of § 39-26, a court may, however, review an untimely motion to withdraw a guilty plea in those cases in which there is specific legislative authorization to withdraw a plea after sentencing, see General Statutes § 54-1 (allowing withdrawal of a plea if the court fails to give a defendant the immigration warning) or where the defendant has asserted a constitutional claim which satisfies the requirements of State v. Golding, 213 Conn. 233 (1989). State v. Daley, 81 Conn.App. 641, 645, cert. denied, 269 Conn. 910 (2004).
In Golding, our Supreme Court held that "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation 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." (Emphasis in original.) Id. at 239-40. "The first two questions relate to whether a defendant's claim is reviewable, and the last two relate to the substance of the actual review." State v. Newton, 5 Conn.App. 528, 531 (1986).
The claim for review must meet all four prongs of the Golding analysis to be successful. State v. Krzywicki, 39 Conn.App. 832, 836 (1995). The court is, however, free to dispose of the claim by focusing on the condition that appears most relevant under the circumstances of the case. State v. Andrews, 29 Conn.App. 533, 537 (1992), cert. denied, 224 Conn. 924, 618 A.2d 531 (1993); see State v. Pinnock, 220 Conn. 765, 778 (1992).
The defendant argues that prior to accepting his plea of guilty, the court failed to ensure that he was advised of the elements of assault in the second degree. Therefore, his plea was not knowingly entered and he was deprived of a fundamental constitutional right. Because, however, the defendant has not demonstrated that a constitutional violation clearly exists and clearly deprived him of a fair trial, his claim fails to satisfy the third condition of Golding. See State v. Coleman, 52 Conn.App. 466, 473, cert. denied, 249 Conn. 902 (1999).
To the extent that the defendant's constitutional claim implicates Prac. Bk. § 39-19, our Supreme Court, in State v. Badgett, 200 Conn. 412, cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93 L.Ed.2d 373 (1986), held that the failure of the trial court to strictly comply with the requirements of Practice Book § 39-19 will not vitiate the voluntariness of a plea which was properly accepted in compliance with Boykin. "While the federal constitution requires that the record of the plea canvass indicate the voluntariness of any waiver of . . . three core constitutional rights . . . it does not require that the trial court go beyond these constitutional minima . . . A defendant can voluntarily and understandingly waive these rights without literal compliance with the prophylactic safeguards of Practice Book [§§ 39-19 and 39-20]. Therefore . . . precise compliance with the provisions [of the Practice Book] is not constitutionally required. [The court's analysis, therefore, should] focus on whether the federal constitutional principles . . . were satisfied rather than on meticulous compliance with the provisions of the Practice Book." (Citations omitted; emphasis added; internal quotation marks omitted.) Id. at 418. Accord State v. Williams, 60 Conn.App. 575, cert. denied, 255 Conn. 922 (2000).
A plea of guilty, therefore, can be voluntary and knowing even though the trial court, in derogation of § 39-19, fails to apprise the defendant of the elements of the crime charged. See Henderson v. Morgan, 426 U.S. 637, 647, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), (a court may ordinarily presume that defense counsel has explained the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit). See also Marshall v. Lonberger, 459 U.S. 422, 436-37, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983) (same); Oppel v. Meachum, 851 F.2d 34, 38 (2d Cir.) ('under Henderson v. Morgan [ supra, 67] it is normally presumed that the defendant is informed by his attorney of the charges against him and the elements of those charges'), cert. denied, 488 U.S. 911, 109 S.Ct. 266, 102 L.Ed.2d 254 (1988). Thus, unless a record contains some positive suggestion that the defendant's attorney has not informed the defendant of the elements of the crimes to which he was pleading guilty, the court may presume that the defendant has received an explanation of the crime charged. State v. Lopez, 269 Conn. 799 (2004).
Applying these principles of law to the present case, it is clear that despite the court's failure to comply with § 39-19(1), the defendant knowingly and voluntarily entered his plea of guilty. The transcript in the present case reveals that the defendant was advised by the court of his core constitutional rights to a jury trial, to confront his accusers and to be free from self incrimination. In addition the transcript shows that prior to the defendant's plea, he was aware of the crime charged, the elements of that crime and the factual basis in support of that crime.
During the plea canvass, the defendant informed the court that his attorney had gone over the law with him as it related to the crime of assault in the second degree and that he had had enough time to discuss his plea with his attorney. The defendant also indicated that he did not want to further consult with his attorney about either the law or the facts of his case and that he was satisfied with his attorney's advice. Thus in the present case the court did not need to rely on the presumption that the defendant understood the nature of the charge or that the defendant's attorney had explained the elements of assault in the second degree to the defendant. Rather the court could and did rely upon the defendant's affirmative representations in that regard.
Despite his assurances to the trial court that his attorney had explained the elements of assault in the second degree to him, the defendant now claims that there is ambiguity in the record as to whether he understood that he was pleading to a charge of assault in the second degree. The defendant bases this claim on one mistaken numerical reference to General Statute § 53a-61 made by the state's attorney during the course of an eight-page canvass.
Assault in the third degree.
"[STATE'S ATTORNEY]: Mark Reid, in docket CR 12-150477, on a substituted charge of assault in the second degree, a violation of 53a-61, what is your plea?
THE DEFENDANT: Guilty." Tr. at 2. CT Page 11472
Despite this claim of ambiguity, it is obvious from the record that on April 25, 1997, all parties to the proceeding believed that the defendant was charged with and convicted of the crime of assault in the second degree. During the reading of the information, the defendant was informed that he was being charged with assault in the second degree and was asked how he pleaded to that charge. Immediately after the defendant pleaded guilty, the state averred that the defendant and the victim were in a dispute over a common girlfriend, that the defendant struck the victim repeatedly with a baseball bat and the victim suffered a broken leg. This factual basis complies with all of the elements of both the intent and the recklessness subsections of the crime of assault in the second degree. There can be no serious dispute that the defendant caused serious physical injury by means of a dangerous instrument. Further the defendant's intent to cause physical injury to the victim can be inferred from the relationship between the parties and the fact that the defendant repeatedly struck the victim in the head, arm and leg with a baseball bat. Alternatively a fact finder could infer that the defendant recklessly caused serious physical injury to the victim in that the defendant was aware that his actions could cause serious physical injury yet chose to act anyway and this behavior constituted a gross deviation from the standard of care of a reasonable person.
Sec. 53a-60. Assault in the second degree: Class D felony. (a) A person is guilty of assault in the second degree when: . . . (2) with intent to cause physical injury to another person, he causes such injury to such person . . . by means of . . . a dangerous instrument other than by means of the discharge of a firearm; or (3) he recklessly causes serious physical injury to another person by means of . . . a dangerous instrument.
Sec. 53a-3. Definitions . . . (4) "Serious physical injury" means physical injury which creates a . . . serious impairment of health or serious loss or impairment of the function of any bodily organ; . . . (7) "Dangerous instrument" means any instrument, article or substance which, under it is . . . is capable of causing . . . serious physical injury . . .
In addition the record shows that during the plea canvass, the court specifically asked the defendant if he had gone over the law of assault in the second degree with his attorney. The court itself went over the factual allegations with the defendant and the defendant admitted to these allegations. Thereafter, the defendant and the state waived a pre sentence investigation and report — required only upon conviction of a felony — and in imposing sentence the court specifically informed the defendant that it was imposing sentence for his conviction of assault in the second degree. Significantly during the plea canvass, despite three separate references to the crime charged as assault in the second degree, at no time did the defendant's attorney or the defendant attempt to correct the record to reflect a plea to assault in the third degree. Compare State v. Gamble, 27 Conn.App. 1, cert. denied, 222 Conn. 901 (1992) (trial court erred in refusing to correct record to show defendant convicted as an accessory when even though defendant was put to plea as a principal, record showed nine separate references by court and defendant's attorney to fact that the defendant was pleading as an accessory and state did not object to the court's canvass of the defendant as an accessory). Reviewing the record in its entirety, it is obvious that all parties — the court, the state, the defendant and the defendant's attorney — understood that the defendant was pleading to a charge of assault in the second degree and was convicted of assault in the second degree. Any other conclusion is unreasonable and flies in the face of the entire record.
The defendant claims that since the elements of assault in the third degree are so similar to those of assault in the second degree and since the state's attorney in putting the defendant to plea referenced § 53a-61, this court cannot assume that the defendant pleaded guilty to assault in the second degree. To accept this argument the court would have to ignore the contents of the rest of the transcript. Additionally while it is true that § 53a-61(a)(1), (2), and (3) are lesser included offenses of assault in the second degree, each subsection of assault in the third degree omits an element of assault in the second degree which was admitted by the defendant. E.g., § 53a-61(a)(1) and (a)(3) omit the fact that the defendant caused serious physical injury to the victim and subsection (a)(2) omits the fact that the defendant used a dangerous instrument during the assault. Thus in light of the entire record, it is not reasonably possible that the defendant unknowingly pleaded guilty to assault in the second degree.
The trial court record shows that the defendant knowingly and voluntarily pleaded guilty to assault in the second degree. Thus the defendant is not able to prove the existence of a constitutional violation as required by Golding.
B. Ineffective assistance of counsel
The defendant next claims that his attorney's representation was inadequate in that the attorney failed to correct the deficiencies in the defendant's plea at the time it was taken and the attorney acquiesced to multiple continuances beyond the date where the defendant would have been eligible for discretionary relief from deportation.
At the hearing on the motion to withdraw guilty plea, the defendant, recognizing that habeas corpus is the preferred vehicle for claims of ineffective assistance withdrew some or all of these claims.
Since there were no deficiencies in the defendant's plea, the court's decision in the first part of this opinion is dispositive of the defendant's claim that his attorney should have corrected deficiencies in the record.
To the extent that the defendant's second claim of ineffective assistance implicates the Golding exception to an untimely motion to withdraw, the record is inadequate for review. On April 25, 1997, the defendant pleaded guilty to assault in the second degree and received a one-year sentence. The defendant claims that if he had been found guilty and sentenced twenty-four days earlier he would have been eligible for discretionary relief from deportation. As a result, he argues that his attorney was ineffective in not disposing of this case in a timely fashion.
The defendant's argument assumes but the trial record does not confirm that the court's offer to the defendant of a plea to a reduced charge of assault in the second degree and a recommendation of a one-year sentence was on the table and available for the defendant's acceptance prior to the federal statutory change. From the state of this record, the court is unable to determine whether the defendant could have pleaded guilty to assault in the second degree with a one-year sentence at any time prior to April 25, 1997. In addition it is unclear from the record whether any pretrial continuances in the present case were at the request of the state or the defendant and if at the request of the defendant whether those continuances were sought as a part of the defendant's trial strategy. Thus the record is wholly inadequate for a Golding review based on any claim of ineffective assistance of counsel.
C. Defendant's right of allocution
The defendant next claims that prior to the imposition of sentence the court failed to afford the defendant his right to address the court. The defendant, therefore, seeks to withdraw his guilty plea. Assuming arguendo the validity of the defendant's claim, the proper relief for this violation is a new sentencing hearing not the withdrawal of the defendant's plea. Copas v. Warden, 30 Conn.App. 677, 686, cert. denied, 226 Conn. 901 (1993) (proper remedy for a defect in a sentencing hearing is a new sentencing hearing). Thus the defendant's request to withdraw his plea on this basis is not warranted.
III. CONCLUSION
Since the defendant has failed to show any constitutional deficiencies in the plea proceeding, the defendant's motion to withdraw his guilty plea is denied.
BY THE COURT
PATRICIA A. SWORDS JUDGE OF THE SUPERIOR COURT