State v. Alston

• Decision Date: 02 April 2013
• Docket Number: No. 33244.,33244.
• Citation: 141 Conn.App. 719,62 A.3d 586
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Ira ALSTON.

141 Conn.App. 719

62 A.3d 586

STATE of Connecticut

v.Ira ALSTON.

No. 33244.

Appellate Court of Connecticut.

Argued Jan. 3, 2013.

Decided April 2, 2013.

David J. Reich, assigned counsel, for the appellant (defendant).

Sarah Hanna, assistant state's attorney, with whom, on the brief, was Matthew C. Gedansky, state's attorney, for the appellee (state).

BEACH, BEAR and ESPINOSA, Js.^*

ESPINOSA, J.

The defendant, Ira Alston, appeals from the judgment of conviction rendered following his guilty plea to the crime of possessing a weapon or dangerous instrument in a correctional institution in violation of General Statutes § 53a–174a.¹ The defendant claims that the court (1) improperly accepted his plea because it was not made voluntarily and (2) lacked subject matter jurisdiction because the information failed to state all of the essential elements of the crime with which he stood charged. We affirm the judgment of the trial court.

By substitute information dated November 20, 2008, the state charged the defendant with possessing a weapon or dangerous instrument in a correctional institution. On October 1, 2009, the defendant's attorney, public defender Douglas Ovian, informed the court that the defendant wished to plead guilty in accordance with a plea bargain reached with the state. After the defendant entered a guilty plea, the prosecutor set forth the factual basis for the plea. The prosecutor stated that on June 30, 2008, while the defendant was an incarcerated prisoner at Northern Correctional Institution, he was found to possess an instrument consisting of a pen with a razor blade attached to it. The instrument was found on the defendant's person, concealed in his boxer shorts. Days prior to this discovery, the defendant and his cellmate were given razors for shaving purposes, but later told prison staff that they had disposed of the razors by flushing them down the toilet. Following a canvass of the defendant, the court found that the plea was knowingly, voluntarily and intelligently entered with the effective assistance of counsel, and accepted the plea. Thereafter, the court imposed the agreed upon sentence of one year incarceration, consecutive to the defendant's existing term of incarceration. This appeal followed.

I

First, the defendant claims that the court improperly accepted his plea because it was not made voluntarily. We disagree.

“[I]t is axiomatic that unless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable.... A plea of guilty is, in effect, a conviction, the equivalent of a guilty verdict by a jury.... In choosing to plead guilty, the defendant is waiving several constitutional rights, including his privilege against self-incrimination, his right to trial by jury, and his right to confront his accusers.... The ... constitutional essentials for the acceptance of a plea of guilty are included in our rules and are reflected in Practice Book §§ [39–19 and 39–20].” (Internal quotation marks omitted.) State v. Reid, 277 Conn. 764, 780, 894 A.2d 963 (2006).

“Due process requires that every valid guilty plea be demonstrably voluntary, knowing and intelligent.... We ... require the trial court affirmatively to clarify on the record that the defendant's guilty plea was made intelligently and voluntarily.... In order to make a knowing and voluntary choice, the defendant must possess an understanding of the law in relation to the facts, including all relevant information concerning the sentence.... The defendant must also be aware of the actual value of any commitments made to him by the court ... because a realistic assessment of such promises is essential in making an intelligent decision to plead guilty.... A determination as to whether a plea has been knowingly and voluntarily entered entails an examination of all of the relevant circumstances.... [W]e conduct a plenary review of the circumstances surrounding [a] plea to determine if it was knowing and voluntary.” (Internal quotation marks omitted.) Caez v. Commissioner of Correction, 107 Conn.App. 617, 619–20, 946 A.2d 279, cert. denied, 289 Conn. 903, 957 A.2d 868 (2008).

The defendant argues that his statements during the plea canvass reflect that his plea was coerced, rather than voluntary. The plea was coerced, he asserts, because it resulted from the denial of his right to the effective assistance of counsel. He states that “[the] plea was the result of force because it was based on his belief that his attorney failed to represent him.” He argues that his statements at the time of his plea did not reflect that the plea was voluntary, the court did not make a record to demonstrate the voluntariness of the plea and that this court cannot presume that the plea was voluntary. The defendant did not raise the present issue before the trial court, either by moving to withdraw the plea or otherwise. He affirmatively seeks review pursuant to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989). The record is adequate for review and the claim implicates the defendant's right to due process and, thus, is reviewable under Golding. See, e.g., State v. Gordon, 69 Conn.App. 691, 694, 796 A.2d 1238 (2002).

The following additional facts are relevant to our analysis.² On October 1, 2010, before the court, Hon. Terence A. Sullivan, judge trial referee, the defendant withdrew his prior pleas and elections, and pleaded guilty to the crime of possessing a weapon or dangerous instrument in a correctional institution. The prosecutor set forth the factual basis for the plea and indicated that the plea agreement was for one year to serve, consecutive to any sentence imposed previously.

The court proceeded to canvass the defendant concerning his plea. The court asked the defendant if he had discussed with Ovian the decision to change his plea. The defendant replied affirmatively. The court asked the defendant if Ovian had explained the essential elements of the crime to him. The defendant replied that he did not understand the elements of the crime. After a colloquy between the court, Ovian and the defendant, the defendant stated: “I don't understand it ... what I do understand is regardless of ... the representation that I've been given by Douglas Ovian, that it really doesn't matter. So, weighing those options, [if] I go to trial with his representation, there's no way I'm going to be successful whether I'm guilty or not guilty. So, I'm just going to take the one year instead of going to trial with him and getting [up to a twenty-five year term of incarceration].”

The court then asked if the defendant intended to make an Alford plea, ³ at which time Ovian stated that he was unsure. The following colloquy occurred:

“[The Defendant]: I don't even understand [the] Alford plea. This is new to me. I didn't get [any] notice. I didn't even know I had court today. I was pulled in, and he's telling me all of this, that we're starting a jury trial. He didn't even discuss trial strategy with me. So, in light of all of that, I know I'm unprepared for a trial. With his representation, there ain't no way I will be successful at a trial. It just came up today. Now, Alford came up today. All of this is new today. And I don't understand—I never seen the Alford case. I don't know what Alford requires, so in light of one year to what he says, twenty-five years, and the representation that I'm given, I'm stuck between a hard spot and a rock.

“The Court: So, tell me what you want to do?

“[The Defendant]: In light of everything I just said, I don't have the necessary means to employ private counsel. I'm not saying that I'm guilty.”

Additional discussion between the court and the defendant occurred. Once more, the court discussed with the defendant the elements of the crime. The defendant questioned whether the state had to prove that he used a dangerous instrument. The court informed the defendant that this was not the case. The defendant represented that he understood that, by pleading guilty, he was forgoing his right to a trial, his right to remain silent, his right to confront adverse witnesses and present evidence on his behalf and his right to require the state to prove his guilt beyond a reasonable doubt. The defendant stated that he understood the state's burden of proof with regard to the crime with which he stood charged. The following colloquy then occurred:

“The Court: Okay. Now, I hate to even ask this because it's—you're not thinking the way that I'm thinking—but I have to ask you, is anyone threatening or forcing you to enter this plea today?

“[The Defendant]: Forced by?

“The Court: By anybody? Is anybody threatening you that ... you have to plead guilty today?

“[The Defendant]: Not in the sense that you're presenting it. It means, like, physical harm?

“The Court: I'm talking about any kind of coercion, threats—

“[The Defendant]: I feel pressured, yes.

“The Court: If you don't plead guilty, we're going to do something to your family. If you don't do something, we're going to take you out and beat you up—that type of thing.

“[The Defendant]: Not in that context, no.”

The court questioned the defendant about the plea agreement with the state, the sentence to which he was exposed if he did not plead guilty and other consequences of his plea. The defendant stated that he understood these facts and consequences. The following colloquy ensued:

“[The Court]: You've indicated to me that you understand what the plea agreement is, and I'm going to ask you once more, are you sure that this is what you want to do today, because it has to be decided now. I need to know whether or not you—I'm asking you for a final time, is this what you've decided to do, not that you like it, but this is what you've decided to do and it's your decision. It's your decision right now, but if I find you guilty, then the decision is gone.

“[The Defendant]: In light of the circumstances, yes, I did decide.

“The...