State v. Alicea

• Decision Date: 16 April 1996
• Docket Number: No. 14000,14000
• Citation: 674 A.2d 468,41 Conn.App. 47
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Luis ALICEA.

Page 468

674 A.2d 468

41 Conn.App. 47

STATE of Connecticut v. Luis ALICEA.

No. 14000.

Appellate Court of Connecticut.

Argued Dec. 7, 1995.

Decided April 16, 1996.

G. Douglas Nash, Public Defender, for appellant (defendant).

Leon F. Dalbec, Jr., Assistant State's Attorney, with whom, on the brief, were James E. Thomas, State's Attorney, Dennis J. O'Connor, Senior Assistant State's Attorney, and Steven Preleski, Assistant State's Attorney, for appellee (state).

Before HEIMAN, SPEAR and STOUGHTON, JJ.

HEIMAN, Judge.

The defendant appeals from the judgments of conviction, rendered following his guilty plea, of failure to appear in the first degree ¹ in violation of General Statutes § 53a-172(a). ² On appeal, the defendant claims that the trial court improperly denied his motion to withdraw his guilty plea to the charge of failure to appear in the first degree. He asserts that the action of the trial court was improper because the record fails to reflect that he understood the elements of the crime with which he stood charged. We agree with the defendant and reverse the judgments of the trial court.

The record and the transcripts of the proceedings before the trial court reveal the following relevant facts. The defendant was charged with a number of criminal offenses in three separate cases. In case CR93-438257, he was charged with robbery in the first degree in violation of General Statutes § 53a-134(a)(4), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134(a)(4), and failure to appear in the first degree in violation of General Statutes § 53a-172(a). In case CR93-447568, he was charged with attempted robbery in the first degree in violation of General Statutes §§ 53a-49(a)(2) and 53a-134(a)(4), attempted assault in the second degree in violation of General Statutes §§ 53a-49(a)(2) and 53a-60(a)(2), reckless endangerment in the first degree in violation of General Statutes § 53a-63 and threatening in violation of General Statutes § 53a-62. In case CR93-438693, he was charged with sale of narcotics as an accessory in violation of General Statutes §§ 53a-8 and 21a-278(b), conspiracy to sell narcotics in violation of General Statutes §§ 53a-48 and 21a-278(b) and failure to appear in the first degree in violation of General Statutes § 53a-172(a). The defendant entered pleas of not guilty to all of the charges.

The defendant negotiated a plea bargain with the state concerning all three cases. As part of the plea bargain, the defendant agreed to withdraw all prior not guilty pleas, to enter a plea of guilty to the charge of failure to appear in the first degree in case CR93-438257 and to the charges of assault in the third degree ³ and threatening in case CR93-447568. The state agreed to nolle ⁴ the remaining charges in case CR93-438257, to file a substitute information in case CR93-447568 reflecting the charges to which the defendant would plead guilty in that case, and to nolle all of the charges in case CR93-438693.

On May 12, 1994, the defendant appeared before the trial court to withdraw his prior pleas and to enter his guilty pleas pursuant to the plea bargain. The state filed a substitute information in case CR93-447568 charging the defendant with assault in the third degree and threatening. The defendant entered his plea of guilty to the charge of failure to appear in the first degree in case CR93-438257 and to the charges of assault in the third degree and threatening in case CR93-447568. ⁵

After the defendant entered his guilty plea, the state recited the factual basis for the charge of failure to appear in the first degree in case CR93-438257:

"[Assistant State's Attorney]: As to the failure to appear count, Your Honor, he was arrested for robbery first degree and conspiracy to commit robbery first degree, obviously felonies. He was released on bond. The cases were continued until June 16, 1993--the case was continued along with a drug case which is docket [CR93-438693] to the same day, June 16, 1993, at which time the defendant failed to appear."

The state then proceeded to recite the factual basis for the charges of assault in the third degree and threatening in case CR93-447568. ⁶ Thereafter, the trial court canvassed the defendant regarding his guilty pleas. The pertinent part of that canvass is as follows.

"The Court: Very well. Mr. Alicea, how old are you, sir?

"The Defendant: Twenty-two, ma'am.

"The Court: And how far through school have you been, to what grade?

"The Defendant: I went to senior year.

"The Court: You graduated?

"The Defendant: No, ma'am.

"The Court: Where were you born?

"The Defendant: Hartford.

"The Court: Are you presently under the influence of alcohol, drugs or medication of any kind?

"The Defendant: No, ma'am.

"The Court: Have you had enough time to discuss this case with your two lawyers, Mr. Johnson and [Ms.] Rodriguez-Schack? ⁷

"The Defendant: Yes.

"The Court: Did they discuss with you the evidence the state claims it has against you?

"The Defendant: Yes, ma'am.

"The Court: Did they discuss with you the evidence the state would have to have in order to get a conviction at trial beyond a reasonable doubt? That's called the elements of the offense, and it is that evidence which the prosecutor just recited.

"The Defendant: Yes, ma'am.

"The Court: Are you satisfied with the representation you've received from your lawyers?

"The Defendant: Yes, ma'am." (Emphasis added.) ⁸

The trial court accepted the defendant's guilty plea, and found that it was made knowingly, voluntarily and with the assistance of competent counsel, and that there was a factual basis for the plea. Consequently, the trial court entered a finding of guilty on all counts to which the defendant pleaded guilty. The trial court scheduled sentencing for July 15, 1994.

On July 15, 1994, the defendant, accompanied by counsel, appeared at the sentencing hearing with a letter setting forth the following: "Your Honor: (1) After a final review of this entire case, I have decided to withdraw my guilty plea. (2) I did not understand the nature of the charges, and I thought the sentence would be seven [years] with the right to argue for less. (3) My lawyer told me what to say when I pled guilty because I was tired of coming back and forth to court. If Your Honor is going to deny my request to withdraw, I would like an exception for the record and appeal papers and a sentence review application. Thank you very much." The trial court treated the letter as a motion to withdraw the plea and questioned the defendant about it. The defendant indicated that the letter applied only to the charge of failure to appear in the first degree and not to the charges of assault in the third degree and threatening. ⁹ The trial court denied the defendant's motion to withdraw the plea and sentenced him to five years for failure to appear in the first degree, one year for assault in the third degree and one year for threatening.

The defendant claims that the trial court improperly denied his motion to withdraw his plea of guilty to the charge of failure to appear in the first degree. The defendant posits that the record does not reveal that the defendant understood the nature of the charge, including the element of the offense requiring that to be convicted he must have wilfully failed to appear on the date in question. The defendant asserts that the trial court, by accepting the guilty plea under these circumstances, failed in its constitutional obligation and in its obligations under the rules of practice. We agree.

We first examine the fundamental principles of law that govern our resolution of this claim. " 'A guilty plea is itself a conviction; Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709 [1711-12], 23 L.Ed.2d 274 (1969); Paulsen v. Manson, 203 Conn. 484, 489, 525 A.2d 1315 (1987); and a defendant, when entering such a plea, waives several constitutional rights. Boykin v. Alabama, supra, [at] 243 ; McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166 [1171], 22 L.Ed.2d 418 (1969); Paulsen v. Manson, supra [at 489, 525 A.2d 1315]; State v. Gilnite, [202 Conn. 369, 381, 521 A.2d 547 (1987) ]. First is the privilege against self-incrimination, second is the right to a jury trial, and third is the right to confront one's accusers. Boykin v. Alabama, supra [at 234, 89 S.Ct. at 1712]; McCarthy v. United States, supra [at 466, 89 S.Ct. at 1171]; State v. Gilnite, supra, [at] 381 n. 14 . To ensure that a defendant is accorded due process, [therefore,] the plea must be voluntarily and intelligently entered. Boykin v. Alabama, supra, [at] 243 n. 5 ; McCarthy v. United States, supra [at 466, 89 S.Ct. at 1171]; Paulsen v. Manson, supra [at 489, 525 A.2d 1315]; Oppel v. Lopes, 200 Conn. 553, 556, 512 A.2d 888 (1986); State v. Badgett, [200 Conn. 412, 418, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93 L.Ed.2d 373 (1986) ]; State v. Lopez, 197 Conn. 337, 341-42, 497 A.2d 390 (1985).' State v. Wright, 207 Conn. 276, 287, 542 A.2d 299 (1988).

"Because it cannot be presumed from a silent record that the decision to plead guilty was the product of the defendant's 'full understanding of what the plea connotes and of its consequences'; Boykin v. Alabama, supra, 395 U.S. [at] 243-44 ; 'the federal constitution requires that the record of the plea canvass indicate the voluntariness of any waiver of the three core constitutional rights [implicated by the guilty plea].' State v. Badgett, supra, 200 Conn. [at] 418 . To ensure that this constitutional requirement is satisfied, the trial court is obliged to comply with the dictates of Practice Book §§ 711 and 712, ¹⁰ which enumerate the responsibilities of the court in conducting the plea canvass. However, because the 'determination as to whether a plea has been knowingly and voluntarily entered entails an examination of all of the relevant circumstances'; State v. Wright, supra, 207 Conn. [at] ...