State v. Brooks

• Decision Date: 07 June 2005
• Docket Number: (AC 24873).
• Citation: 874 A.2d 280,89 Conn. App. 427
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. KENNOLLEY O. BROOKS

89 Conn. App. 427

874 A.2d 280

STATE OF CONNECTICUT v. KENNOLLEY O. BROOKS

(AC 24873).

Appellate Court of Connecticut.

Argued February 15, 2005.

Officially released June 7, 2005.

Schaller, McLachlan and Dupont, Js.

Sandra J. Crowell, assistant public defender, with whom was Kalisha R. Raphael, assistant public defender, for the appellant (defendant).

Christopher T. Godialis, assistant state's attorney, with whom, on the brief, were Kevin T. Kane, state's attorney, and Thomas M. Griffin, supervisory assistant state's attorney, for the appellee (state).

Opinion

DUPONT, J.

The defendant, Kennolley O. Brooks, appeals from the judgment of the trial court dismissing his motion to withdraw his plea of guilty and denying his alternative petition for a writ of error coram nobis. The defendant claims on appeal that the court improperly dismissed the motion and denied the petition because (1) his right to counsel guaranteed by the sixth and fourteenth amendments to the United States constitution was not waived, and (2) he was eligible for the pretrial drug education program, which would have led to the dismissal of the charge against him.¹ We affirm the judgment of the trial court.

The primary issue in this appeal is whether the defendant's plea of guilty, without the assistance of counsel, and the fine imposed pursuant to that plea required the granting of his motion to withdraw his plea.² The answer turns on whether the plea led to an actual deprivation of his liberty³ in violation of his constitutional right to counsel or his right to counsel pursuant to General Statutes § 51-296.⁴ The secondary issue is whether the defendant's petition for a writ of error coram nobis should have been granted because the judgment of conviction was void or voidable.

The following factual and procedural history is relevant to our disposition of the defendant's claims on appeal. On July 6, 2000, the defendant entered a guilty plea to one count of possession of less than four ounces of marijuana in violation of General Statutes § 21a-279 (c), and was fined $100, which the defendant paid that same day. The defendant did not receive any jail time. At the time the defendant entered the plea of guilty, he was a resident alien and he was not represented by counsel. It is that conviction and the defendant's plea of guilty that are the subject of this appeal.

The defendant had been convicted of the same offense on September 17, 1996, and was convicted twice subsequently of the same offense on June 14 and September 17, 2001. The defendant received a sentence of one year of incarceration in connection with the June 14, 2001 conviction, which this court later reversed n State v. Brooks, 82 Conn. App. 93, 842 A.2d 631 (2004. As of the date of the reversal, the defendant had completed his sentence.

The United States Immigration and Naturalization Service, on the basis of the above referenced convictions, instituted removal proceedings. In a document titled "Notice to Appear," dated January 23, 2002, the United States charged that the defendant was "subject to removal from the United States" pursuant to "section 237 (a) (2) (A) (iii) of the Immigration and Nationality Act, as amended [8 U.S.C. § 1101 et seq.], in that, at any time after admission, [the defendant had] been convicted of an aggravated felony as defined in section 101 (a) (43) (B) of the Act, that is, an offense relating to the illicit trafficking in a controlled substance, as described in section 102 of the Controlled Substances Act [21 U.S.C. § 802], including a drug trafficking crime, as defined in section 24 (c) of Title 18, United States Code." At the time removal proceedings were initiated against the defendant, his sentence arising out of the June 14, 2001 conviction had commenced. The defendant was deported to Jamaica in January, 2004.

On July 10, 2003, the defendant filed a pleading titled "Motion to Withdraw Plea or Alternatively Petition for Writ of Error Coram Nobis," claiming that his sentence and judgment of conviction was " `void or voidable.' " As of that date, the defendant was being held on an immigration detainer at the Osborn Correctional Institution and had been ordered deported. The defendant claimed in his motion and petition that (1) his waiver of his right to counsel was inadequate, (2) he is innocent and (3) he was eligible for the pretrial drug rehabilitation program. The court heard arguments on July 10, 2003, and in a memorandum of decision filed November 10, 2003, dismissed the defendant's motion and denied his petition. This appeal followed.

I MOTION TO WITHDRAW GUILTY PLEA

The defendant claims that the court improperly concluded that he did not have a right to counsel, given the facts at the time he entered his plea. Specifically, the defendant argues that contrary to the court's conclusion, he had a right to counsel because (1) the court sought a waiver of counsel at the time of his plea and sentencing, (2) the court did not state on the record that he would not be incarcerated as a result of the conviction and (3) he was actually imprisoned. The defendant further contends that the court's determination that he did not have a right to counsel is not supported by § 51-296 (a), which he claims provides a right to counsel in any criminal proceeding.

We begin with the applicable standard of review. "A. . . 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 § [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. . . . The burden is always on the defendant to show a plausible reason for the withdrawal of a plea of guilty." (Citation omitted; internal quotation marks omitted.) State v. Winer, 69 Conn. App. 738, 744, 796 A.2d 491, cert. denied, 261 Conn. 909, 806 A.2d 50 (2002). "Practice Book § 39-26 specifically prohibits the withdrawal of a plea of guilty or nolo contendere after the conclusion of the proceeding at which the sentence was imposed. Our case law, however, has recognized an exception to this rule when it is clear on the record that the defendant's constitutional rights were violated by an improper canvass and a failure to advise the defendant of the consequences of his plea." (Internal quotation marks omitted.) State v. Perez, 85 Conn. App. 27, 37, 856 A.2d 452, cert. denied, 271 Conn. 933, 859 A.2d 931 (2004).

In reviewing the defendant's claims on appeal, therefore, we begin, as the court did, with the question of whether the defendant had a constitutional right to counsel in this case. In Alabama v. Shelton, 535 U.S. 654, 122 S. Ct. 1764, 152 L. Ed. 2d 888 (2002), the United States Supreme Court reiterated its long and well established doctrine concerning the sixth amendment right to counsel. "In Gideon v. Wainwright, 372 U.S. 335, 344-45 [83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), the court] held that the Sixth Amendment's guarantee of the right to state-appointed counsel, firmly established in federal-court proceedings in Johnson v. Zerbst, 304 U.S. 458 [58 S. Ct. 1019, 82 L. Ed. 1461] (1938), applies to state criminal prosecutions through the Fourteenth Amendment. [The court] clarified the scope of that right in Argersinger [v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972)], holding that an indigent defendant must be offered counsel in any misdemeanor case that actually leads to imprisonment. . . . Seven Terms later Scott [v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979)] confirmed Argersinger's delimit[ation]. . . . Although the governing statute in Scott authorized a jail sentence of up to one year . . . [the court] held that the defendant had no right to state-appointed counsel because the sole sentence actually imposed on him was a $50 fine . . . . Even were the matter res nova, [the court] stated, the central premise of Argersinger—that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment— is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel in nonfelony cases.. . .

"Subsequent decisions have reiterated the Argersinger-Scott actual imprisonment standard. . . . It is thus the controlling rule that absent a knowing and intelligent waiver, no person may be imprisoned for any offense . . . unless he was represented by counsel at his trial." (Citations omitted; emphasis added; internal quotation marks omitted.) Alabama v. Shelton, supra, 535 U.S. 661-62. The Shelton court further stated that "the Sixth Amendment inquiry trains on the stage of the proceedings corresponding to [the defendant's] trial, where his guilt was adjudicated, eligibility for imprisonment established, and prison sentence determined." Id., 665.

As in Scott, the governing statute in this case, § 21a-279 (c),⁵ authorized that a defendant be sentenced to "not more than one year, or be both fined and imprisoned; and for a subsequent offense, may be fined not more than three thousand dollars or be imprisoned not more than five years, or be both fined and imprisoned." As previously stated, however, the court imposed a $100 fine, with no sentence of imprisonment. The mere fact that the court could have sentenced the defendant to a term of imprisonment, therefore, is irrelevant to our sixth amendment analysis.

The defendant's principal argument is that because his plea of guilty in this case resulted in the commencement of removal proceedings against him, which in turn resulted in a period of incarceration, he had, at the time he entered his plea, a right to counsel. We are not persuaded. First, and most obvious, the court did not sentence the defendant to a term of imprisonment but rather imposed a fine of $100. Second,...