State v. Childree

• Decision Date: 25 January 1983
• Citation: 454 A.2d 1274,189 Conn. 114
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Eugene CHILDREE.

Page 1274

454 A.2d 1274

189 Conn. 114

STATE of Connecticut v. Eugene CHILDREE.

Supreme Court of Connecticut.

Argued Nov. 2, 1982.

Decided Jan. 25, 1983.

David P. Gold, Hartford, with whom were Richard C. Robinson and H. Gordon Hall, Jr., Hartford, and, on the brief, Jeffrey R. Martin, Hartford, for appellant (defendant in both cases).

Donald B. Caldwell, State's Atty., for appellee (state).

Before SPEZIALE, C.J., and PETERS, ARTHUR H. HEALEY, PARSKEY and SHEA, JJ.

PETERS, Associate Justice.

This case arises out of a claim by the defendant that, at the time he entered three pleas of guilty, he was not adequately apprised of the nature of the criminal charges against him, in violation of the federal constitutional requirement that a guilty plea, to be valid, must be made knowingly and voluntarily. The trial court found the defendant, Eugene Childree, guilty of robbery in the first degree, larceny in the first degree, and assault in the third degree, in violation of General Statutes §§ 53a-134(a)(3), ¹ 53a-122(a)(1), ² and 53a-61(a)(1) ³ respectively, after accepting the defendant's pleas of guilty to those offenses.

The charges facing the defendant resulted from two separate incidents. The robbery and larceny counts derived from the defendant's alleged theft of $161.31 from a 7-11 Store in Vernon on December 16, 1980. At 2:31 a.m. on that date, the defendant entered the store wearing a paper bag over his head and holding his hand threateningly on a tire iron concealed in his pocket. He ordered the clerk to open the cash drawer and, when the clerk complied, removed its contents and fled. Following his subsequent arrest, the defendant pleaded not guilty to an information charging him with the robbery and larceny counts, elected trial by jury, and was released on bail pending trial. On March 10, 1981, the defendant was again arrested and charged with, inter alia, assault in the third degree in connection with a second incident which occurred on March 1, 1981. The defendant pleaded guilty to the assault charge on April 1 1981, and the other charges stemming from the second incident were nolled.

Thereafter, the two matters were consolidated and the defendant entered into a plea bargain whereby, in return for his pleading guilty to the three remaining counts, the state would recommend sentences of not less than five and not more than ten years each for the robbery and larceny counts, and a sentence of one year for the assault count. Pursuant to the bargain, the sentences were to run concurrently for a total effective recommended sentence of not less than five nor more than ten years. Alternatively, under the relevant criminal statutes, the defendant faced, if convicted of all three counts, a maximum sentence of not less than twenty-one nor more than forty-one years. ⁴

During the hearing at which the defendant entered his guilty pleas, the trial court addressed the defendant personally to determine his understanding of the nature of the charges against him. The court explained that a person is guilty of robbery in the first degree "if you commit robbery and in the course of the commission of the crime you are--you use or threaten the use of a dangerous instrument. Of course, robbery is the commission of larceny when you use threats of immediate use of physical force upon another person." The defendant, upon inquiry, indicated that he understood. The court then explained that "a person is guilty of larceny in the first degree when the property or service, regardless of its nature and value, is obtained by extortion; and, of course, larceny is very simply defined as taking property or appropriating to your own use property which belongs to another; and property obtained by extortion is when he compels or induces another person to deliver such property up by reason of instilling in him a fear that, if the property is not delivered, that you will cause him physical injury." The defendant again said that he understood. The court went on to inform the defendant of the nature of the assault charge against him, of the maximum penalty for each offense with which he was charged, and of the constitutional rights he was waiving by pleading guilty. To each item of information the defendant replied, upon inquiry, that he understood.

After questioning the defendant as to the facts underlying the charges, the court found that the pleas were voluntarily made and that there was a factual basis for them. The pleas were accepted, judgments of guilty were rendered as to all three counts, and the defendant was subsequently sentenced to concurrent prison terms of from three to eight years each for the robbery and larceny counts, and of one year for the assault count.

The defendant raises five issues on appeal. His first and second claims are that the trial court erred in determining that the plea of guilty to first degree larceny was knowing and voluntary, because, first, the trial court failed to apprise him of an element critical to the commission of that offense, i.e., a threat of physical injury to some person in the future; and, second, the facts to which he assented at the time he pleaded guilty failed to establish a basis for that same element of the offense. The defendant's third claim is that the sole element that distinguishes first degree larceny from first degree robbery is the futurity of the threat in the larceny offense; therefore, convictions for both offenses, absent a determination that such a future threat was made, expose him to double jeopardy. His fourth claim is that, under the circumstances, his lawyer's having advised him to plead guilty to first degree larceny deprived him of the effective assistance of counsel. The defendant's fifth and final claim is that the trial court's erroneous acceptance of the guilty plea to the larceny count rendered all three pleas defective. Because we agree with the defendant's first and fifth claims, we do not consider his claims of a lack of factual basis, double jeopardy, and ineffective assistance of counsel.

We begin our analysis by noting that the proper procedure for raising a claim that a guilty plea was not knowingly and voluntarily made is to make that claim in the trial court in the first instance. See Practice Book §§ 719 through 722. ⁵ There is no explanation on the record why this procedure was not followed. Nonetheless, because the error claimed by the defendant involves the violation of a fundamental constitutional right, we will consider it for the first time on appeal. State v. Godek, 182 Conn. 353, 356, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S.Ct. 1741, 68 L.Ed.2d 226 (1981); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

It 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. McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969); State v. Godek, supra, 182 Conn. at 356, 438 A.2d 114; State v. Marra, 174 Conn. 338, 340, 387 A.2d 550 (1978); State v. Battle, 170 Conn. 469, 473, 365 A.2d 1100 (1976). A plea of guilty is, in effect, a conviction, the equivalent of a guilty verdict by a jury. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969); State v. Marra, supra, 174 Conn. at 345, 387 A.2d 550; State v. Battle, supra, 170 Conn. at 473, 365 A.2d 1100. 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. McCarthy v. United States, supra, 394 U.S. at 466, 89 S.Ct. at 1170. These considerations demand the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and its consequences. Boykin v. Alabama, supra, 395 U.S. at 243-44, 89 S.Ct. at 1712-13. We therefore require the record affirmatively to disclose that the defendant's choice was made intelligently and voluntarily. Boykin v. Alabama, supra, at 242, 89 S.Ct. at 1711; State v. Godek, supra, 182 Conn. at 356, 438 A.2d 114; Blue v. Robinson, 173 Conn. 360, 373, 377 A.2d 1108 (1977).

The defendant relies on Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), for his claim that the trial court's alleged failure to apprise him of an element critical to the commission of first degree larceny has rendered his plea involuntary. In Henderson, the Supreme Court of the United States overturned a conviction based on a plea of guilty to second degree murder because the defendant had not been informed that intent to cause the death of his victim was an element of the offense. "[T]he plea could not be voluntary in the sense that it constituted an intelligent admission that he committed the offense unless the defendant received 'real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.' Smith v. O'Grady, 312 U.S. 329, 334 [61 S.Ct. 572, 574, 85 L.Ed. 859 (1941) ]." Henderson v. Morgan, supra, 426 U.S. at 645, 96 S.Ct. at 2257-58. See State v. Collins, 176 Conn. 7, 10n, 404 A.2d 871 (1978); State v. Marra, supra, 174 Conn. at 345, 387 A.2d 550; Blue v. Robinson, supra, 173 Conn. at 381-82, 377 A.2d 1108 (Speziale, J., dissenting).

Comparison of the trial court's definition of first degree larceny with the statutory definition of the offense leads us to the conclusion that the futurity of the threat essential to a commission of larceny was not made clear to the defendant in the present case. General Statutes § 53a-119 provides, in relevant part: "A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes ... (5) Extortion. A...