State v. Anthony D.

• Court: Connecticut Supreme Court
• Writing for the Court: ROGERS, C. J.
• Decision Date: 19 April 2016
• Docket Number: SC19382
• Citation: State v. Anthony D., SC19382 (Conn. Apr 19, 2016)
• Parties: STATE v. ANTHONY D.

STATE v. ANTHONY D.

SC19382

Supreme Court of Connecticut

April 19, 2016

DISSENT

ROGERS, C. J., with whom McDONALD and ROBINSON, Js., join, dissenting. I respectfully dissent from the majority opinion because I believe, under the particular circumstances of this case, that the trial court abused its discretion in denying the motion of the defendant, Anthony D., Sr., to withdraw his plea without further inquiry. In my view, to hold otherwise disregards the remedy afforded by Practice Book §§ 39-26 and 39-27 (4),¹ which allow for withdrawal of a plea when a plea is claimed to have been entered without effective assistance of counsel.

As the Appellate Court's opinion recounts, on December 16, 2011, the defendant appeared at a sentencing hearing before the same judge that had accepted his plea ten days earlier. At the hearing, the following discussion ensued between defense counsel and the court:

"[Defense Counsel]: . . . [B]efore we begin . . . I've met with [the defendant]. He is expressing to me concerns over the manner in which he was represented and is asking that he be permitted to withdraw his plea.

"The Court: Okay.

"[Defense Counsel]: Under those circumstances, it would be my application to the court on his behalf that new counsel be appointed to investigate his claim.

"The Court: With respect to it, the court does not believe that there is any factual basis for it. This was the court that took the plea. This was done in the middle of evidence. And, [defendant], if you want to claim at a time after that this was ineffective or somehow coerci[ve] you can have a habeas proceeding. But, [defense counsel], as an officer of the court, do you know of any defect in that plea canvass that would allow the court to, in fact, take back the plea at this time?

"[Defense Counsel]: Your Honor, I think that I need to be precise in my language. The canvass itself I think was quite thorough.

"The Court: Right. I mean, we went back and forth. And my recollection was that I repeatedly advised him that this was a permanent agreement and that it could not be changed . . . .

"So, with respect to it, unless you can point out some defect, I am not inclined to have him withdraw his plea . . . .

"So, with respect to it, while there may be reasons postjudgment for a different counsel, at this time, I am not going to grant [the defendant's] motion to withdraw because there is no prejudice. . . . The withdrawal—and I'll just take it as an oral motion, is denied." (Empha- sis added; internal quotation marks omitted.) State v. Anthony D., 151 Conn. App. 109, 115-17, 94 A.3d 669 (2014).

As the foregoing makes clear, the trial court denied the defendant's motion to withdraw his plea summarily, without conducting any inquiry into the specific allegations regarding his claim of ineffective assistance of counsel.

The law governing withdrawal of a guilty plea, and whether the trial court should hold an evidentiary hearing to consider whether to allow such withdrawal, is well established. Practice Book § 39-27 permits the withdrawal of a plea before sentencing for a variety of grounds including, as the trial court recognized, involuntariness, the lack of an adequate plea canvass, or a change to the agreed upon sentence.² Additionally, a trial court must allow a defendant to withdraw his plea if that plea "resulted from the denial of effective assistance of counsel . . . ." Practice Book § 39-27 (4). As a general matter, "[a] claim of ineffective assistance of counsel is . . . made pursuant to a petition for a writ of habeas corpus rather than in a direct appeal. . . . Section 39-27 . . . however, provides an exception to that general rule when ineffective assistance of counsel results in a guilty plea." (Emphasis added; internal quotation marks omitted.) State v. Sutton, 95 Conn. App. 139, 145, 895 A.2d 805, cert. denied, 278 Conn. 920, 901 A.2d 45 (2006).

"After a guilty plea is accepted but before the imposition of sentence the court is obligated to permit withdrawal upon proof of one of the grounds in [Practice Book § 39-27]. An evidentiary hearing is not required [on a motion to withdraw a plea] if the record of the plea proceeding and other information in the court file conclusively establishes that the motion is without merit. . . . In considering whether to hold an evidentiary hearing on a motion to withdraw a guilty plea the court may disregard any allegations of fact, whether contained in the motion or made in an offer of proof, which are either conclusory, vague or oblique. For the purpose of determining whether to hold an evidentiary hearing, the court should ordinarily assume any specific allegations of fact to be true. If such allegations furnish a basis for withdrawal of the plea under [§ 39-27] and are not conclusively refuted by the record of the plea proceedings and other information contained in the court file, then an evidentiary hearing is required. . . . The burden is always on the defendant to show a plausible reason for the withdrawal of a plea of guilty. . . . To warrant consideration, the defendant must allege and provide facts which justify permitting him to withdraw his plea under [§ 39-27]." (Citations omitted; emphasis omitted; internal quotation marks omitted.) State v. Salas, 92 Conn. App. 541, 544-45, 885 A.2d 1258 (2005). "[O]nce entered, a guilty plea cannot be withdrawn except by leave of the court, within its sound discretion, and a denial thereof is reversible only if it appears that there has been an abuse of discretion." (Internal quotation marks omitted.) State v. Crenshaw, 210 Conn. 304, 308-309, 554 A.2d 1074 (1989).

Obviously, if the basis for a motion to withdraw is the inadequacy of a plea canvass, the record of the plea proceedings will be especially informative. In contrast, however, an ineffectiveness based motion for plea withdrawal typically will rest upon advice given or other aspects of counsel's performance that occur outside the courtroom. Accordingly, the factual basis underlying the motion, in all likelihood, will not be readily apparent from the plea proceedings.³ See, e.g., State v. Sutton, supra, 95 Conn. App. 141 (alleging counsel's failure to investigate case, to prepare defense for trial, to locate and to interview alibi witnesses, and to provide defendant with police reports and witness statements); State v. Barnwell, 102 Conn. App. 255, 262, 925 A.2d 1106 (2007) (alleging counsel's failure to obtain, in timely fashion, certain evidence); State v. Stith, 108 Conn. App. 126, 132, 946 A.2d 1274 (alleging counsel's failure to investigate medical evidence), cert. denied, 289 Conn. 905, 957 A.2d 874 (2008); State v. Gray, 63 Conn. App. 151, 162, 772 A.2d 747 (2001) (alleging counsel's failure to file motion to suppress), cert. denied, 256 Conn. 934, 776 A.2d 1151 (2001); State v. Perez, 57 Conn. App. 385, 387, 748 A.2d 384 (2000) (alleging that previous relationship with counsel prevented effective communication of appropriate legal advice).

My review of the cases in which a plea withdrawal was sought based on a claim of ineffective assistance of counsel demonstrates that, in each case, the defendant was provided with an opportunity to present allegations of fact in support of the claim. From those allegations of fact, the court could evaluate the merit of the motion to determine whether it should be denied or whether an evidentiary hearing should be held. In the present case, however, the trial court denied the defendant's motion without giving the defendant an opportunity to assert any allegations of fact, relying instead on its recollection of the plea proceeding. In my view, there are two problems with the trial court's actions.

First, contrary to Practice Book § 39-27 (4), the trial court reasoned, mistakenly, that a claim of ineffective assistance was not a proper basis for a plea withdrawal.⁴ In the trial court's view, as evidenced by its comments on the record, a habeas proceeding after sentencing was the proper forum for such a claim. Specifically, the court's immediate response to the defendant's claim was to suggest a habeas proceeding, and it thereafter suggested that the defendant may have reasons to seek new counsel "postjudgment . . . ." Although the trial court was correct that the defendant could make this claim in a habeas proceeding, the rules of practice make clear that he was not required to do so and could properly move to withdraw his plea at this earlier stage of the proceedings. See State v. Sutton, supra, 95 Conn. App. 145.

Second, the trial court was singularly focused on the plea proceedings.⁵ Specifically, it repeatedly indicated that "unless [defense counsel could] point out some defect" in the plea canvass, it would not permit the defendant to withdraw his plea. By relying only on its impressions of the plea proceeding and inquiring no further, the trial court foreclosed the opportunity to obtain sufficient information to make a reasoned decision.

In State v. Morant, 13 Conn. App. 378, 536 A.2d 605 (1988), the trial court denied the defendant the opportunity to present his claim of ineffective assistance by misstating proper procedure and not allowing him to provide specific allegations of fact in support of his claim. See id., 380 and n.2, 385 (Appellate Court found that trial court "erroneously informed" defendant that "no claim that you have ineffective assistance of counsel . . . will do you any good to have your plea withdrawn at a future time" and stated that based on trial court's actions at sentencing "[u]nderstandably, the defendant failed to make more specific allegations of fact"). Likewise, in the present case, the trial court stated that the claim should be consigned to a habeas forum and limited its inquiry to the plea canvass. Accordingly, we have no way of knowing what specific allegations of fact, if any, the defendant would have provided in support of his motion.⁶ In my view, the defendant should have had the opportunity to present...