State v. Carmelo T.

• Decision Date: 30 September 2008
• Docket Number: No. 28238.,28238.
• Citation: 955 A.2d 687,110 Conn.App. 543
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. CARMELO T.<SMALL><SUP>1</SUP></SMALL>

955 A.2d 687

110 Conn.App. 543

STATE of Connecticut v. CARMELO T.¹

No. 28238.

Appellate Court of Connecticut.

Argued April 16, 2008.

Decided September 30, 2008.

Michael Zariphes, special public defender, for the appellant (defendant).

Raheem L. Mullins, deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Maxine V. Wilensky, senior assistant state's attorney, for the appellee (state).

FLYNN, C.J., and DiPENTIMA and PELLEGRINO, Js.

PELLEGRINO, J.

The defendant, Carmelo T., appeals from the trial court's judgments of conviction, which were rendered following the denial of his motion, filed pursuant to Practice Book § 39-27, to withdraw his guilty pleas to two counts of risk of injury to a child in violation of General Statutes § 53-21(a)(2)² and two counts of sexual assault in the third degree in violation of General Statutes § 53a-72a (a)(1)(A). On appeal, the defendant claims that the court abused its discretion in denying his motion because his pleas were made unknowingly and involuntarily. In support of that claim, the defendant asserts that (1) he did not understand the nature of the charges to which the pleas were offered, (2) the court's plea canvass failed to comply substantially with Practice Book §§ 39-19 and 39-20, and (3) his plea counsel provided ineffective assistance.

We disagree and, accordingly, affirm the judgments of the trial court.

The following facts and procedural history are relevant to our disposition of the defendant's appeal. The defendant initially was charged in two separate matters, both involving claims of sexual misconduct with two different minor children on various dates between April, 1998, and 2002. In both cases, the defendant was charged with (1) sexual assault in the first degree in violation of General Statutes § 53a-70 (a)(2), (2) sexual assault in the third degree in violation of § 53a-72a (a)(1)(A), (3) risk of injury to a child in violation of § 53-21(a)(1), (4) risk of injury to a child in violation of § 53-21 (a)(2) and (5) unlawful restraint in violation of General Statutes § 53a-95 (a). The cases subsequently were consolidated.

In March, 2006, the state offered the defendant a plea agreement that called for him to plead guilty to two counts each of risk of injury to a child and third degree sexual assault and to receive fifteen years incarceration, suspended after seven years, and fifteen years of probation. The defendant accepted the plea agreement, conditioned on his being able to plead under the Alford doctrine,³ which was agreeable with the state. On March 27, 2006, the court canvassed the defendant regarding his Alford pleas and accepted the pleas after concluding that he was submitting his pleas knowingly, intelligently and voluntarily.

On May 26, 2006, prior to sentencing, the defendant made an oral motion to withdraw his guilty pleas on the grounds that the court had conducted an inadequate canvass and that he had received ineffective assistance of counsel. The defendant also made an oral motion to dismiss his plea counsel, Miguel Rodriguez. The court granted the defendant's motion to dismiss Rodriguez, appointed new counsel to represent the defendant and continued the matter with respect to the withdrawal of his guilty pleas. The defendant thereafter on August 11, 2006, filed a written motion to withdraw his guilty pleas, alleging that he was entitled to withdraw his pleas pursuant to Practice Book §§ 39-27(1), (2) and (4).⁴ Specifically, he alleged that the plea canvass did not substantially comply with Practice Book §§ 39-19⁵ and 39-20,⁶ thereby rendering his pleas involuntary, and that the pleas were the result of ineffective assistance of counsel.

On September 8, 2006, the court, relying on the transcript of the plea canvass, concluded that the defendant's pleas were entered knowingly, intelligently and voluntarily. Accordingly, the court denied the defendant's motion to withdraw his pleas on the ground of an inadequate plea canvass. The court thereafter held an evidentiary hearing on the defendant's motion on the ground of ineffective assistance of counsel. After taking evidence on the matter, the court concluded that Rodriguez had provided effective assistance and that the defendant's pleas were entered knowingly, intelligently and voluntarily. The court subsequently denied the defendant's motion to withdraw his pleas on the ground of ineffective assistance of counsel.

On September 22, 2006, the court sentenced the defendant in accordance with the plea agreement to fifteen years in prison, execution suspended after seven years, and fifteen years probation. This appeal followed. Additional facts will be provided as necessary.

As a preliminary matter, we identify the legal principles and the standard of review germane to our discussion. "[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]. . . . The failure to inform a defendant as to all possible indirect and collateral consequences does not render a plea unintelligent or involuntary in a constitutional sense." (Internal quotation marks omitted.) State v. Reid, 277 Conn. 764, 780, 894 A.2d 963 (2006).

"Before a guilty plea is accepted a defendant may withdraw it as a matter of right. Practice Book [§ 39-26]. 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]. . . . 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 [Practice Book § 39-27]." (Citation omitted; internal quotation marks omitted.) State v. Barnwell, 102 Conn.App. 255, 258-59, 925 A.2d 1106 (2007). "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." (Internal quotation marks omitted.) State v. Gundel, 56 Conn.App. 805, 812, 746 A.2d 204, cert. denied, 253 Conn. 906, 753 A.2d 941 (2000). With the foregoing in mind, we now turn to the defendant's specific claims.

I

The defendant first claims that the court abused its discretion in denying his motion to withdraw his pleas under Practice Book § 39-27(2) because the pleas were involuntary. Specifically, the defendant alleges that he did not understand the nature of the charges to which the pleas were offered, thereby rendering the pleas involuntary. We disagree.

The following additional facts are relevant to the defendant's claim. At the March 27, 2006 plea canvass, the court informed the defendant that the plea agreement called for him to plead guilty under the Alford doctrine to two counts of risk of injury to a child and two counts of sexual assault in the third degree and to receive a sentence of fifteen years incarceration suspended after seven years, and fifteen years probation. The court then explained that if he chose not to plead guilty, he would go to trial on two counts of sexual assault in the first degree, rather than the two counts of sexual assault in the third degree to which he was pleading guilty. The court explained the possible consequences of being found guilty of sexual assault in the first degree, including a maximum of twenty-five years incarceration with a minimum ten years to serve and a $10,000 fine on each count. The defendant thereafter stated that he wanted to plead guilty to sexual assault in the third degree, rather than proceed to trial on the charges of sexual assault in the first degree. The court then explained the elements of sexual assault in the third degree, and the defendant pleaded guilty under the Alford doctrine.

On appeal, the defendant argues that he was confused about the degree of sexual assault to which he was pleading. Specifically, he asserts that the court's interjection of sexual assault in the first degree into the plea canvass led him to believe he was pleading guilty to two counts of that charge, rather than two counts of sexual assault in the third degree. We are not persuaded.

"[I]t is well established that a plea of guilty cannot be voluntary in the sense that it constitutes an intelligent admission that the accused committed the offense unless the accused has received real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process. . . . In determining whether the defendant had real notice of the charge against him, however, [a] court must consider the totality of the circumstances surrounding the entry of a plea." (Citation omitted; internal quotation marks omitted.) State v. Reid, supra, 277 Conn. at 782, 894 A.2d 963.

In the present case, we conclude that the totality of the circumstances surrounding the defendant's pleas clearly indicate that the defendant understood that he was pleading guilty to sexual assault in the third degree, rather than sexual assault in the first degree, and that his claim simply is the result of his critical dissection and artificial isolation of portions of the plea transcript. Although it is true that the court explained to the defendant the charges he faced if he rejected the plea agreement, the court also thoroughly explained during its canvass the elements of sexual...