State v. Aquino, 24431.

• Citation: 873 A.2d 1075,89 Conn.App. 395
• Decision Date: 07 June 2005
• Docket Number: No. 24431.,24431.
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Mario AQUINO.

873 A.2d 1075

89 Conn.App. 395

STATE of Connecticut v. Mario AQUINO.

No. 24431.

Appellate Court of Connecticut.

Argued February 14, 2005.

Decided June 7, 2005.

Conrad Ost Seifert, special public defender, for the appellant (defendant).

James M. Ralls, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Michael A. Pepper, senior assistant state's attorney, for the appellee (state).

LAVERY, C.J., and DiPENTIMA and McLACHLAN, Js.

DiPENTIMA, J.

The defendant, Mario Aquino, appeals from the judgment of the trial court rendered following the denial of his motion to withdraw his guilty plea, entered pursuant to the Alford doctrine,¹ to one count of attempt to commit assault in the second degree in violation of General Statutes §§ 53a-60(a)(1) and 53a-49(a)(2), and one count of failure to appear in the first degree in violation of General Statutes § 53a-172. On appeal, the defendant claims that the plea was not knowingly and voluntarily made due to ineffective assistance of counsel. We affirm the judgment of the trial court.

The defendant is a Guatemalan national who illegally entered the United States in 1986 and remained here as an illegal alien for the next seventeen years. At a plea hearing before the court on February 20, 2003, the state offered the following factual basis for the defendant's plea: "In the city of New Haven back on April 7, 1989, around 4:50 p.m., police officers were called to 183 Fulton Street. That is the condominium address of the victim, one Mr. Frank Rogers. Mr. Rogers at the time was involved in the construction trade, and approximately six months prior to that date, he had taken in the defendant, who had no home and no work. He had employed the defendant and allowed him to live at his condominium. He was paying the defendant for the work he was doing and, on that date, Mr. Rogers had expressed to the defendant, who was apparently an immigrant from Guatemala, that [he] wished for him to vacate the premises. The defendant didn't take well to that request, approached the victim with what turned out to be a handgun and threatened the victim. He fired one shot at the victim, missing the victim. The victim was able to grab onto the defendant. They struggled over the gun. Another shot was fired into the ceiling of the premises. They fell down some stairs, and, eventually, the defendant made off without the gun. The gun was recovered at the scene. Shortly thereafter, the defendant was apprehended by New Haven police department officials. I believe it was in the vicinity of Interstate 95 and Stiles Avenue, and [he] was positively identified by the victim as the person who tried to shoot him. Subsequently, the defendant was booked at the police department, and the bail commissioner saw fit to give him a promise to appear with a court date in [Superior Court, geographical area number six] of April 25, 1989, as his first court appearance. He signed ... the promise to appear form with that date. On April 25, 1989, in [geographical area number six] the defendant failed to appear. That failure to appear was wilful, and the court, at that time, ordered a rearrest, and a failure to appear warrant went out. In 2002, the New Haven police department got word from Orange County, New York, that the officials there had [the defendant] in custody, and he was subsequently extradited here to New Haven to answer to the original charges, the felony charges [that] he had been arrested for back in 1989."

After these facts were recited at the plea hearing, the court conducted a plea canvass, advising the defendant, who was represented by an attorney, of his constitutional rights, of the factual basis of the state's case against him and of the maximum sentence that might be imposed. With reference to the plea arrangement, the court inquired whether the defendant had been coerced in any fashion, either by threats or promises, to which the defendant answered in the negative. The defendant also acknowledged that he had consulted with his attorney before he had entered his plea and that he was satisfied with the advice that he had received from his attorney.

In addition, the court inquired: "Do you understand [that] if you are not a citizen of the United States, conviction of the offenses with which you are charged could result in deportation, exclusion from admission into the United States or denial of naturalization rights pursuant to the laws of the federal government. Do you understand that?" The defendant answered in the affirmative, declaring, "Yes sir. I understand clear." The court thereupon found that the defendant's plea of guilty had been "voluntarily and understandingly made with the assistance of competent counsel," and continued the matter for sentencing.

On April 4, 2003, the defendant filed a motion to withdraw his plea. The motion alleged that, at the time the plea was entered, the defendant "did not have a clear understanding of the likelihood that by entering into the plea bargain proposed, he would be jeopardizing his continuing ability to reside in the United States and his ability to petition for naturalization." In response, the court conducted an evidentiary hearing and thereafter denied the defendant's motion. The defendant was then sentenced in accordance with the terms of his plea. This appeal followed.

I

Although the parties did not raise the issue of mootness in this appeal, we do so sua sponte because mootness implicates the court's subject matter jurisdiction and is, therefore, a threshold matter to resolve. Ayala v. Smith, 236 Conn. 89, 93, 671 A.2d 345 (1996). "The doctrine of mootness is rooted in the same policy interests as the doctrine of standing, namely, to assure the vigorous presentation of arguments concerning the matter at issue.... [T]he standing doctrine is designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.... Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse... (3) that the matter in controversy be capable of being adjudicated by judicial power ... and (4) that the determination of the controversy will result in practical relief to the complainant." (Citations omitted; internal quotation marks omitted.) State v. McElveen, 261 Conn. 198, 204, 802 A.2d 74 (2002).

The record reveals that the defendant was deported on February 6, 2004. The defendant's appellate brief states that "[t]he General Counsel of the Guatemalan Embassy to the United States has agreed to accept a copy of this brief in trust for [the defendant], pending locating him." (Emphasis added.) As a result, there is little practical relief that we can afford. His appeal, thus, appears to be moot.

Our Supreme Court, however, has stated that "a controversy continues to exist, affording the court jurisdiction, if the actual injury suffered by the litigant potentially gives rise to a collateral injury from which the court can grant relief.... [A] common theme emerges upon review of [our case law]: whether the litigant demonstrated a basis upon which [the reviewing court] could conclude that, under the circumstances, prejudicial collateral consequences are reasonably possible as a result of the alleged impropriety challenged on the appeal." State v. McElveen, supra, 261 Conn. at 205, 802 A.2d 74. "[F]or a litigant to invoke successfully the collateral consequences doctrine, the litigant must show that there is a reasonable possibility that prejudicial collateral consequences will occur. Accordingly, the litigant must establish these consequences by more than mere conjecture, but need not demonstrate that these consequences are more probable than not. This standard provides the necessary limitations on justiciability underlying the mootness doctrine itself.... The reviewing court therefore determines, based upon the particular situation, whether, the prejudicial collateral consequences are reasonably possible." Id., at 208, 802 A.2d 74. "[T]his standard requires the [litigant] to demonstrate more than an abstract, purely speculative injury, but does not require the [litigant] to prove that it is more probable than not that the prejudicial consequences will occur." Williams v. Ragaglia, 261 Conn. 219, 227, 802 A.2d 778 (2002).

The defendant argues that, as a collateral consequence of the denial of his motion to withdraw his plea, his ability to petition for naturalization will be gravely impaired.² That contention is not mere speculation, but rather is a likely consequence of his guilty plea to the count of attempt to commit assault in the second degree. For that reason, we conclude that subject matter jurisdiction is not a bar to the defendant's present appeal.

II

The defendant claims that because his plea was not knowingly and voluntarily made due to the ineffective assistance of counsel, the court abused its discretion in denying his motion to withdraw the plea. We disagree.

It is well settled that "[a] guilty plea, once accepted, may be withdrawn only with the permission of the court.... The court is required to permit the withdrawal of a guilty plea upon proof of any ground set forth in Practice Book § 721 [now § 39-27].... Whether such proof is made is a question for the court in its sound discretion, and a denial of permission to withdraw is reversible only if that discretion has been abused."³ (Citations omitted.) State v. Morant, 20 Conn. App. 630, 633, 569 A.2d 1140, cert. denied, 215 Conn. 818, 576 A.2d 547 (1990).

A defendant claiming that a plea resulted from ineffective assistance of counsel bears a dual burden. "First, [the defendant] must prove that the assistance was not within the range of competence displayed by lawyers...