State v. Dzwonkowski

• Court: Connecticut Court of Appeals
• Writing for the Court: BEACH
• Citation: State v. Dzwonkowski, 151 Conn.App. 81, 94 A.3d 657 (Conn. App. 2014)
• Decision Date: 17 June 2014
• Docket Number: No. 35702.,35702.
• Parties: STATE of Connecticut v. Daniel DZWONKOWSKI.

151 Conn.App. 81

94 A.3d 657

STATE of Connecticut

v.Daniel DZWONKOWSKI.

No. 35702.

Appellate Court of Connecticut.

Argued March 6, 2014.

Decided June 17, 2014.

Michael Zariphes, assigned counsel, for the appellant (defendant).

Jonathan M. Sousa, special deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Tatiana A. Messina, assistant state's attorney, for the appellee (state).

GRUENDEL, BEACH and HARPER, Js.

BEACH, J.

The defendant, Daniel Dzwonkowski, appeals from the judgment of conviction, rendered by the trial court following his guilty plea, pursuant to a Garvin agreement,¹ of possession of a controlled substance with intent to sell in violation of General Statutes § 21a–277 (b). The defendant claims that (1) his plea violated his due process rights because it was not entered knowingly, voluntarily and intelligently, and (2) his due process rights were violated when the court imposed the maximum sentence allowed under the agreement because (a) he did not have fair notice of the terms of the agreement, and (b) the evidence offered by the state to support a violation of the agreement was not admitted properly at the sentencing hearing. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. On April 13, 2012, Bridgeport police officers executed a search warrant for the defendant's residence in Stratford. The return and inventory form listing the items seized during the search stated that the police recovered $166 in cash, plastic baggies, a digital scale, a metal box containing drug paraphernalia, a cell phone and 2.27 ounces of marijuana. The defendant was arrested and charged with, inter alia, possession of a controlled substance with intent to sell in violation of § 21a–277 (b).²

During the plea hearing on August 13, 2012, the defendant pleaded guilty to possession of a controlled substance with intent to sell in violation of § 21a–277 (b) pursuant to a Garvin agreement, which, in exchange for his guilty plea, provided that if he was fully compliant with a program at Bridgeport's Alternative to Incarceration Center (program), he would receive a fully suspended sentence. If, on the other hand, he was not compliant, he would be subject to a maximum sentence of three years incarceration, suspended after one year, and three years probation. The court further stated that the defendant was to complete the substance abuse portionof the program, to obey all the rules and regulations of the program, and to submit negative urines when randomly required to do so. After the court thoroughly canvassed the defendant, the court accepted the plea and found that he knowingly, freely, voluntarily and intelligently pleaded guilty.

At an October 15, 2012 hearing, a representative of the program informed the court that the defendant was noncompliant with the program due to absences. The court informed the defendant that he must attend the program, but no further action was taken at that time. At the sentencing hearing on March 15, 2013, the state offered two reports indicating that the defendant had missed five appointments with the program. The court determined that the defendant had violated the terms of the agreement and sentenced him to three years incarceration, execution suspended after one year, and three years probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that his plea violated his due process rights because, as a result of a defective plea canvass, it was not entered knowingly, voluntarily or intelligently. We disagree.

The defendant acknowledges that this claim was not preserved and seeks review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).³ We review the defendant's claim under Golding because the record is adequate for review, and the defendant has alleged a claim of constitutional magnitude. See State v. Fagan, 280 Conn. 69, 90, 905 A.2d 1101 (2006) (inadequate plea canvass implicates due process rights), cert. denied, 549 U.S. 1269, 127 S.Ct. 1491, 167 L.Ed.2d 236 (2007). The defendant's claim fails under the third prong of Golding because the court properly determined that his plea pursuant to the Garvin agreement was entered knowingly, voluntarily and intelligently.

“In order for a guilty plea to comport with due process, the plea must be voluntary and knowingly entered. Boykin v. Alabama, 395 U.S. 238, 243–44, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). [W]e conduct a plenary review of the circumstances surrounding the plea to determine if it was knowing and voluntary.... There are three constitutional rights of which a defendant must be cognizant prior to entering a guilty plea. They are (1) the privilege against self-incrimination, (2) the right to a trial by jury and (3) the right to confront accusers. [Id.] Although the purpose of Practice Book § 39–19 is to ensure that guilty pleas comport with due process, a guilty plea may satisfy constitutional requirements even in the absence of literal compliance with [its] prophylactic safeguards.... In other words, substantial compliance is sufficient.” (Citation omitted; internal quotation marks omitted.) State v. Lage, 141 Conn.App. 510, 523–24, 61 A.3d 581 (2013).

A

The defendant claims that the plea canvass violated his due process rights becauseit failed to comply with Practice Book § 39–19(1). ⁴Section 39–19 provides in relevant part: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands: (1) The nature of the charge to which the plea is offered....” The defendant maintains that during the plea canvass, the court inquired only whether he understood the elements of the crime to which he was pleading guilty. That inquiry, he contends, was insufficient because the rules of practice require the court to apprise him of the elements of the charge or at the very least to inquire whether trial counsel did so. We are not persuaded that the inquiry was inadequate.

“[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.... Moreover, [o]ur courts have stopped short of adopting a per se rule that notice of the true nature of the charge always requires the court to give a description of every element of the offense charged.... Rather, we have held that ... even without an express statement by the court of the elements of the crimes charged, it is appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.... [I]t is normally presumed that the defendant is informed by his attorney of the charges against him and the elements of those charges.... Thus, unless a record contains some positive suggestion that the defendant's attorney had not informed the defendant of the elements of the crimes to which he was pleading guilty, the normal presumption applies.” (Citations omitted; internal quotation marks omitted.) State v. Reid, 277 Conn. 764, 782–84, 894 A.2d 963 (2006).

The short form information charged the defendant with, inter alia, possession of a controlled substance with intent to sell in violation of § 21a–277 (b). When the court asked the defendant how he pleaded to the charge of possession of marijuana with intent to sell or dispense in violation of § 21a–277 (b), he answered, “[g]uilty.” During the plea canvass, the court asked the defendant: “And I'm not sure if I asked you, but you do understand the elements of the offense and the penalties which apply?” The defendant answered affirmatively. The court then inquired twice if the defendant had any questions, and both times the defendant stated that he did not. The record is devoid of any indication that the defendant was not informed of the nature of the charge against him and, thus, the court properly could rely on the presumption that he was informed by his attorney of the charge against him and of the elements of the charge.

B

The defendant next argues that the plea canvass did not comport with due process because, in violation of Practice Book § 39–19(4), the court failed to inform him that the maximum possible sentence under § 21a–277 (b) was seven years incarceration and/or a fine of $25,000. The defendant argues that the court's inquiry was limited to whether he understood the penalties that applied, and that that inquiry was insufficient. He argues that the court was required to explain to him the maximum sentence that could be imposed, or, at the very least, to inquire whether counsel had done so. He further argues that if he had known the maximum penalty for violating § 21a–277 (b), it is reasonable to conclude that he would not have accepted the state's offer. We are not persuaded.

Practice Book § 39–19 provides in relevant part that “[t]he judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands ... (4) The maximum possible sentence on the charge....” In deciding a claim made pursuant to § 39–19, “we must consider whether accurate information would have made any difference in [a defendant's] decision to enter [a] plea.” (Internal quotation marks omitted.) State v. Irala, 68 Conn.App. 499, 511, 792 A.2d 109, cert. denied, 260 Conn. 923, 797 A.2d 519, cert. denied, 537 U.S. 887, 123 S.Ct. 132, 154 L.Ed.2d 148 (2002).

The court asked the defendant if he understood the ...