State v. Gundel

• Court: Connecticut Court of Appeals
• Writing for the Court: CRETELLA, J.
• Citation: State v. Gundel, 746 A.2d 204, 56 Conn. App. 805 (Conn. App. 2000)
• Decision Date: 07 March 2000
• Docket Number: (AC 18475)
• Parties: STATE OF CONNECTICUT v. JOHN E. GUNDEL

56 Conn. App. 805

746 A.2d 204

STATE OF CONNECTICUT v. JOHN E. GUNDEL

(AC 18475)

Appellate Court of Connecticut.

Argued November 2, 1999.

Officially released March 7, 2000.

Foti, Spear and Cretella, Js. Gary A. Mastronardi, for the appellant (defendant).

Marjorie Allen Dauster, assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Nicholas J. Bove, Jr., senior assistant state's attorney, for the appellee (state).

Opinion

CRETELLA, J.

The defendant, John E. Gundel, appeals from the trial court's denial of his motion to withdraw his pleas of nolo contendere. Pursuant to Practice Book § 39-27 (3),¹ the defendant claims that the sentence ultimately imposed exceeded that which he reasonably believed had been previously accepted by the court as a result of a plea agreement with the state. The defendant further claims that the court improperly denied him an evidentiary hearing.² We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. The defendant resided at 57 Park Street in Stratford. He was accused of sexual assault on several members of a neighbor's family. On February 26, 1998, pursuant to a plea bargain reached with the state,³ the defendant entered pleas of nolo contendere⁴ to a substitute information charging him with two counts of unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a)⁵ and two counts of assault in the third degree in violation of General Statutes § 53a-61 (a) (1).⁶ The sentence imposed pursuant to the plea agreement, and as recommended by the state, was to be five years incarceration, execution suspended after ninety days, with three years probation. This appeal relates to one of the two conditions of probation imposed by the court.

At the start of the plea proceeding on February 26, 1998, the prosecutor recommended a sentence of five years incarceration, execution suspended after ninety days, with three years probation. The prosecutor also set forth the conditions of the defendant's probation as follows: (1) "He is to have no initiated contact whatsoever with ... any member of the [victims'] family residing at 35 Park Street in Stratford," and (2) "once his probation commences and once he is sentenced, he is to leave his residence at 57 Park Street in Stratford, Connecticut."

The defendant did not object to or seek correction of any of the terms or conditions of the plea bargain as recited by the prosecutor. The court inquired whether the defendant was to receive any psychological treatment or evaluation to which the state responded, "No, Your Honor. One of the reasons for the pleas to these charges was to avoid those types of conditions." Defense counsel then informed the court that the state's description was "an accurate statement regarding the proposed disposition."

After the court had concluded the standard line of questioning for a plea canvass,⁷ the following colloquy transpired "The Court: Mr. Gundel, when you appear before me for sentencing, which will be on April 30th, your sentence will be five years in the state's penitentiary, suspended after ninety days. You'll be placed under the supervision of the office of adult probation for a period of three years. Special conditions of probation: (1) No initiated contact with any members of the [victims'] family. You heard the names before, but at the time of sentencing I'll outline them each individually, (2) And that you leave your—and not live or be present at ... [your] residence located at 57 Park Street, Stratford, Connecticut. That's the plea negotiation; is that the way you understood it, sir?

"[Defense Counsel]: May I have just one second, Your Honor?

"The Court: Yes. [A sidebar conference took place between the court, defense counsel and the state.]

"[Defense Counsel]: Sorry, Your Honor. We are prepared to proceed.

"The Court: All right.... Mr. Gundel, I think that really covered all the questions that I had for you. Do you have any questions of me now?

"[The Defendant]: No, Your Honor....

"The Court: And that's the plea negotiation as you understood it; is that correct?

"[The Defendant]: Yes, sir.

"The Court: Then I'll see you on April 30th for sentencing." (Emphasis added.) Thereafter, by a motion filed March 19, 1998, the defendant moved to withdraw his pleas pursuant to Practice Book § 39-27 (3). At sentencing,⁸ defense counsel raised his concerns with the court regarding the second condition of probation and requested a continuance so that counsel could file a brief or memorandum of law in support of the motion to withdraw the defendant's pleas.⁹

The state objected to any continuance because the present disposition, that of pleading to offenses that were not sex crimes to avoid sex offender treatment in exchange for jail time, was the suggestion of the defendant and because he had no constitutional or other basis for claiming that he did not understand the plea disposition. Defense counsel conceded that what the state claimed was not in dispute, but argued that the court's interpretation of the provision "to leave," as including never being present at the defendant's residence, was different from what the defendant had agreed to and offered to present evidence in that regard. Defense counsel argued that the defendant always had understood that the condition of probation would include that he not reside at his former residence, but that the defendant was not aware that the condition also required that he not be present there. Defense counsel then suggested that the court might need to go "beyond the transcript" of the February 26, 1998 proceeding to take into account the discussion at the sidebar conference that took place immediately after the court stated the second condition of probation. The state suggested that if the defendant sought any modification of the condition of probation he could address that particular issue in the future. The court agreed with the state and proceeded with the sentencing, noting that the victims' family members were all present in court. After reviewing the transcript, which the court had ordered relating to the initial canvassing, the court determined that there was no reason for a continuance.

The court's interpretation of the second condition of probation, that the defendant not live or be present at his residence on Park Street, is the crux of this appeal. According to the court, the defendant, after serving his three month sentence, was not only required, as a condition of probation, to move out of his residence at 57 Park Street but was prohibited from even visiting his wife and stepdaughter at that same address. The defendant claims that when he signed the plea agreement he believed he was able to visit the house either to see his wife and stepdaughter or to "fix a leak" if one happened to occur. The court, however, had explained that the condition of probation was that the defendant "leave ... and not live or be present at 57 Park Street." The court then asked the defendant if "that's the plea negotiation as [he] ... understood it," to which the defendant responded, "Yes, sir." The defendant argues that he believed that the sidebar conference, which was held immediately after the explanation of the second condition but before he agreed to the terms, clarified that condition of probation in his favor. The defendant claims that when the court asked if "that's the plea negotiation as [he] ... understood it"; (emphasis added); he answered yes because he interpreted the word understood to be referring to how he had understood the agreement throughout plea negotiations, namely, that he was to leave and no longer reside at 57 Park Street.

I

The defendant first claims that the court improperly denied his motion to withdraw his pleas. Specifically, he claims that the sentence ultimately imposed exceeded that which previously had been agreed to and accepted. We disagree.

"A guilty 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." (Citations omitted; internal quotation marks omitted.) State v. Cooper, 55 Conn. App. 95, 104, 738 A.2d 1125, cert. denied, 251 Conn. 922, 742 A.2d 360 (1999).

The essence of the defendant's claim is that the ambiguity created by the court's use of the past tense (understood), rather than the present tense (understand), along with the defendant's alleged understanding of the condition of probation throughout negotiations, should have constituted an adequate basis for the court to permit the defendant to withdraw his pleas. The defendant claims, therefore, that the court abused its discretion in denying the motion to withdraw his pleas.

The defendant claims that the word understood in the court's inquiry, "And that's the plea negotiation as you understood it," was referring to the condition as he claims to have interpreted it throughout the negotiations, namely, that he is not to reside at 57 Park Street. After the proceeding ended, however, the defendant became aware that the court's use of the past tense (understood) referred to the condition as the court had just stated it and, therefore, claimed that the sentence ultimately imposed by the court exceeded that which had been agreed to previously. Although the defendant places great importance on the difference in tense, we do not agree. "In considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door ... nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life,...