State v. Irala

Decision Date05 March 2002
Docket Number(AC 19874)
Citation68 Conn. App. 499,792 A.2d 109
PartiesSTATE OF CONNECTICUT v. FANNY IRALA
CourtConnecticut Court of Appeals

Landau, Mihalakos and Freedman, JS. James A. Wade, with whom, on the brief, was Linda H. Kolodny, for the appellant (defendant).

Susan C. Marks, supervisory assistant state's attorney, with whom, on the brief, were Eugene J. Callahan, state's attorney, and Paul Ferencek, senior assistant state's attorney, for the appellee (state).

Opinion

MIHALAKOS, J.

The defendant, Fanny Irala,1 appeals from the trial court's judgments of conviction, which were rendered following the denial of her motions, filed pursuant to Practice Book § 39-27,2 to withdraw her pleas of nolo contendere to two counts of larceny in the third degree in violation of General Statutes § 53a124. On appeal, the defendant claims that by denying her motions, the court abused its discretion because her pleas were made unknowingly and involuntarily. In support of that claim, the defendant asserts that (1) the court's plea canvass was defective because it did not comply strictly or substantially with Practice Book §§ 39-9, 39-19 and 39-20, (2) the court misadvised her under General Statutes § 54-1j on the deportation consequences of her pleas, and (3) her attorney at the plea hearing rendered ineffective assistance of counsel during the court's plea canvass and in relation to the deportation consequences of her pleas. We disagree with the defendant's contentions and conclude that her pleas were made knowingly and voluntarily. Accordingly, we affirm the judgments of the trial court.

The following facts and procedural history are relevant to the disposition of the defendant's appeal. The defendant entered the United States in 1988 and remained illegally after her tourist visa expired. In succession, the defendant found work in Greenwich with two families and, while with the second family, retained an immigration attorney to pursue legal residency. On February 22, 1997, while the defendant's residency application remained pending, the Greenwich police arrested her after she was found in possession of more than $25,000 worth of clothing and jewelry belonging to the two families. The police charged the defendant with one count of forgery in the third degree, which was not pursued, and two counts of larceny in the first degree. Thereafter, the defendant retained attorney Allen Williams III to represent her on the charges.

As a result, on November 17, 1997, the defendant pleaded nolo contendere to two counts of larceny in the third degree. The terms of the plea bargain subjected the defendant to a maximum period of incarceration of three years with the right to argue for a sentence of straight probation pursuant to General Statutes § 53a39a. The court canvassed the defendant and accepted her pleas as being made knowingly and voluntarily with the assistance of competent counsel.3 The court also ordered a presentence investigation and set a sentencing date in March, 1998.

On March 17, 1998, the defendant, who had retained new counsel, filed motions prior to sentencing to withdraw her pleas on the basis of a defective trial court canvass.4 On September 4, 1998, the court denied the motions orally and without prejudice, reasoning that under the totality of the circumstances, the court's canvass of the defendant was in substantial compliance with Practice Book § 39-19 and that her pleas had been made knowingly and voluntarily. Nonetheless, the court granted the defendant permission to supplement her motions with briefs addressing issues concerning deportation and ineffective assistance of counsel by attorney Williams.

On December 21, 1998, the defendant filed a motion for reconsideration.5 On January 4, 1999, the defendant again retained new counsel, who on January 26, 1999, filed a motion to set aside her nolo contendere pleas, requesting that she be permitted to withdraw her pleas and that the case be set for trial. That motion was based on claims of ineffective assistance of counsel by Williams, and a defective plea canvass due to the court's misstatement of the immigration consequences to the defendant and its failure to comply with the rules of practice regarding a plea canvass. On March 3, 1999, the court denied the defendant's motion for reconsideration and her motion to withdraw her nolo contendere pleas with respect to her claim of failure to comply with the rules of practice. On May 13, 1999, however, the court held an evidentiary hearing regarding the ineffective assistance of counsel claim. Still later, on June 11, 1999, the court heard further oral argument addressing that claim and the claim that the court had misstated the deportation consequences to the defendant under § 54-1j.

On July 9, 1999, the court denied the defendant's motion to withdraw her nolo contendere pleas as to her remaining claims related to § 54-1j and ineffective assistance of counsel. In its memorandum of decision, the court reasoned that the defendant had failed to meet her burden of proof that her pleas were made unknowingly and involuntarily. Although the court deemed the defendant's claim constitutional in nature, it concluded, on the basis of uncontroverted testimony by the defendant's immigration attorney and its own analysis of the law, that federal immigration law did not mandate deportation as a consequence of the defendant's pleas.6 In turn, the court concluded that § 54-1j correctly stated current federal law and that the defendant had conceded that the requirements of § 54-1j were met. Further, the court concluded, on the basis of a variety of case law, that no due process violation occurred in this case because trial courts are not constitutionally required to advise defendants of collateral federal deportation consequences for pleas of nolo contendere, but rather courts must advise defendants only of direct consequences of such pleas. Finally, crediting the testimony of the immigration attorney and Williams over that of the defendant, the court concluded that Williams had provided sufficiently effective assistance of counsel by calling the defendant's immigration attorney to discuss the consequences of her pleas, especially since the defendant had expressed to Williams that she was not concerned about the consequences, as she already intended to return to Paraguay, where she is a citizen. Thereafter, the court sentenced the defendant to three years of incarceration, the execution of which was suspended, and three years of probation for each larceny count. This appeal followed on July 30, 1999. Additional facts and procedural history will be provided as necessary.

As a threshold matter, we must outline the applicable standard of review that governs our examination of the defendant's claims. The defendant claims that the court improperly denied her motion to withdraw her pleas of nolo contendere, pursuant to Practice Book § 39-27,7 on the grounds that her pleas were made unknowingly and involuntarily, without adequate compliance with the rules of practice and the applicable statute, and without the effective assistance of counsel. See Practice Book § 39-27 (1), (2) and (4). "The burden is always on the defendant to show a plausible reason for the withdrawal of a plea...." (Internal quotation marks omitted.) State v. Andrews, 253 Conn. 497, 505-506, 752 A.2d 49 (2000). Nevertheless, "[i]t is axiomatic that unless a plea ... is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable.... A plea ... cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts." (Internal quotation marks omitted.) State v. Lugo, 61 Conn. App. 855, 861-62, 767 A.2d 1250, cert. denied, 255 Conn. 955, 772 A.2d 153 (2001); see State v. Childree, 189 Conn. 114, 119, 454 A.2d 1274 (1983), citing McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969).

Further, when a defendant pleads nolo contendere she "waives important fundamental constitutional rights, including the privilege against self-incrimination, the right to a jury trial, and the right to confront [the defendant's] accusers.... These considerations demand the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure [the defendant] has a full understanding of what the plea connotes and its consequences. Boykin v. Alabama, [395 U.S. 238, 243-44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)]." (Citation omitted; internal quotation marks omitted.) State v. Garvin, 242 Conn. 296, 310, 699 A.2d 921 (1997). For those reasons, a trial court must confirm on the record that a defendant's plea was made intelligently and voluntarily. Id. At the appellate level, a "determination as to whether a plea has been knowingly and voluntarily entered entails an examination of all of the relevant circumstances." (Internal quotation marks omitted.) Id. Moreover, while engaged in that review, we are mindful that the defendant's plea is not rendered unknowing and involuntary even if she holds a "less than perfect understanding [of an aspect of the] situation...." D'Amico v. Manson, 193 Conn. 144, 154, 476 A.2d 543 (1984). It is well settled also that a nolo contendere plea, once accepted, "may be withdrawn only with the permission of the court.... The court is required to permit the withdrawal of a ... 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." (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); State v. Morant, 20 Conn. App. 630, 633, 569 A.2d 1140, cert. denied, 215 Conn. 818, 576 A.2d 547 (1990). "In...

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