State v. Godek
| Decision Date | 30 March 1981 |
| Citation | 438 A.2d 114,182 Conn. 353 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Richard GODEK. |
Hubert J. Santos, Hartford, for appellant (defendant).
Brian S. Mead, Sp. Asst. State's Atty., with whom was Donald B. Caldwell, State's Atty., for appellee (state).
Before COTTER, C. J., and BOGDANSKI, PETERS, HEALEY and PARSKEY, JJ.
The trial court found the defendant guilty of the crime of unlawful restraint in the first degree, in violation of General Statutes § 53a-95, 1 after accepting his plea of nolo contendere to that charge. On this appeal the defendant urges this court to vacate the plea of nolo contendere and to remand the matter for further proceedings. Essentially, he contends that the trial court erred in accepting his nolo plea because it was not voluntarily and/or intelligently entered in that (1) the court failed to advise him of his right to be tried by a judge at the time he withdrew his prior election of a trial by jury and (2) there was an inadequate factual basis for his plea.
The defendant was initially charged in a two count information filed on January 26, 1978. The first count charged the crime of unlawful restraint in the first degree in violation of General Statutes § 53a-97, and the second count charged the crime of assault in the third degree in violation of General Statutes § 53a-61(a)(2). On April 18, 1978, while represented by counsel, the defendant pleaded not guilty to each count and elected a trial by jury on each count. 2 On July 8, 1978, the state filed a substitute information charging the same crimes. 3 On December 12, 1978, the defendant filed a written plea of nolo contendere to the unlawful restraint charge, which the court accepted after carefully and exhaustively questioning the defendant.
The defendant raised neither of his claims in the court below. Ordinarily, claims not raised in the trial court will not be considered by this court. State v. Zeko, 176 Conn. 421, 426, 407 A.2d 1022 (1979); see State v. Evans, 165 Conn. 61, 65, 327 A.2d 576 (1973). Because, however, both of his claims, which essentially allege that the defendant's plea of nolo contendere was not voluntary and intelligent, raise issues of constitutional dimension, we find that they come within one of the exceptions in State v. Evans. We refer to that situation delineated in Evans which allows review where the record, as here, is sufficiently complete for us to consider the claims on the merits and the claims involve a fundamental constitutional right. See State v. Evans, supra, 70, 327 A.2d 576; see also State v. Vasquez, --- Conn. ---, ---, --- A.2d ---- (42 Conn. L. J., No. 8, pp. 36, 37) (1980); State v. Arroyo, 180 Conn. 171, 429 A.2d 457 (1980); State v. Chesney, 166 Conn. 630, 639, 353 A.2d 783, cert. denied, 419 U.S. 1004, 95 S.Ct. 324, 42 L.Ed.2d 280 (1974).
We take up first the defendant's claim that the plea must be vacated because the court failed to advise him of his right to a trial by a judge, as required by Practice Book, 1963, § 2122 (now Practice Book, 1978, § 711), 4 at the time he withdrew his earlier election for a jury trial. He argues that because of this failure the plea was not voluntarily and/or intelligently made and thus, his due process rights were violated.
State v. Marra, 174 Conn. 338, 340, 387 A.2d 550 (1978); see State v. Collins, 176 Conn. 7, 9, 404 A.2d 871 (1978). " '(I)f a defendant's guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void.' " State v. Battle, 170 Conn. 469, 473, 365 A.2d 1100 (1976); see State v. Marra, supra. To ensure that a defendant's guilty or nolo contendere plea has been so made, § 2122 (now § 711) of our Practice Book requires that: "The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he fully understands: (1) The nature of the charge to which the plea is offered; (2) The mandatory minimum sentence, if any; (3) The fact that the statute for the particular offense does not permit the sentence to be suspended; (4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and (5) The fact that he has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he has the right to be tried by a jury or a judge and that at that trial he has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself."
The nolo proceedings in the present case indicate that although the court complied with every other facet of the rule, it failed specifically to question the defendant with regard to one aspect of subsection (5): the right to trial by a judge. Urging us to adopt a per se rule for any violation of § 2122, the defendant contends that this failure requires the plea to be vacated.
In urging that we follow a per se rule for a violation of § 2122 of our rules, the defendant refers us to the adoption of such a rule by the United States Court of Appeals for the Second Circuit for a violation of the federal counterpart of § 2122: rule 11 of the Federal Rules of Criminal Procedure. 5 In United States v. Journet, 544 F.2d 633 (2d Cir. 1976), that court was presented with the question whether a guilty plea must be invalidated where the district court judge advised the defendant of most of the constitutional rights referred to in rule 11(c) but failed explicitly to inform him of certain other constitutional rights and matters provided in that rule. United States v. Journet, supra, 636. The Journet court held that "unless the defendant is specifically informed of each and every element enumerated in Rule 11 the plea must be vacated." United States v. Journet, supra, 634. In Journet, the trial judge did not advise the defendant that the maximum possible penalty included possible lifetime parole, that at a trial Journet would enjoy the privilege against self-incrimination, that he had a right to counsel at trial, that if his guilty plea were accepted no further trial of any kind would be held, and that if he decided to plead guilty, the court would have the right to ask him questions under oath in which event, if he gave untrue answers, his statements could be used against him in a prosecution for perjury. United States v. Journet, supra, 636-37; see United States v. Saft, 558 F.2d 1073, 1080-81 (2d Cir. 1977).
We have had occasion to note that where a Practice Book rule "is practically identical" with a like federal rule of civil procedure, cases construing and applying the latter "are of persuasive, even though not controlling, authority." See Masterson v. Atherton, 149 Conn. 302, 316, 179 A.2d 592 (1962). A comparison of rule 11 and Practice Book, 1963, § 2122 discloses that, while they are similar, they are not "practically identical" either in language or provision. No claim is made, nor could it be, that we are required to follow the cases construing rule 11, a rule binding only in the federal courts. Although we do not approve of any failure to comply with the explicitly stated requirements of § 2122, or General Statutes § 54-82, 6 which allows a criminal defendant to elect a trial by court instead of by jury, it does not follow that every deviation from the specific requirements of either the statute or the rule or both mandates a conclusion of reversible error. See People v. Ellis, 59 Ill.2d 255, 320 N.E.2d 15 (1974); Trotter v. State, 218 Kan. 266, 543 P.2d 1023 (1975). We are very much aware that the constitutional rights of a criminal defendant in taking either a guilty or a nolo plea must be scrupulously protected. See, e. g., Boykin v. Alabama, 7 supra; McCarthy v. United States, 394 U.S. 459, 466-67, 89 S.Ct. 1166, 1170-71, 22 L.Ed.2d 418 (1969); State v. Collins, supra; State v. Marra, supra. We are of the opinion, however, that those constitutional rights can just as carefully be guarded without adopting a per se rule for § 2122 (now § 711) of our Practice Book. Accordingly, we hold that where there has been a substantial compliance with § 2122, such that none of the defendant's constitutionally protected rights has been infringed upon, the failure to comply with each and every requirement of § 2122 does not automatically require the vacating of the defendant's plea. 8
The defendant next contends that even if this court should not adopt a per se rule, his constitutional rights have still been infringed upon because he was not advised of his right to a court trial. Stated in terms of the above formulation, he alleges that, even following a substantial compliance rule, there has not been substantial compliance with § 2122 to ensure that his plea was made voluntarily and intelligently.
With regard to this claim, we first note that at the time the defendant elected to plead nolo, he was clearly advised of all of those rights enumerated in § 2122, with the exception of his right to a court trial.
Secondly, there is no question that the defendant had been informed at the time of his pleas of not guilty to the original information-which charged the same two crimes as the substitute information, and to one count of which he pleaded nolo contendere-of...
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