State v. Lage

• Court: Connecticut Court of Appeals
• Writing for the Court: DUPONT
• Citation: State v. Lage, 141 Conn.App. 510, 61 A.3d 581 (Conn. App. 2013)
• Decision Date: 26 March 2013
• Docket Number: No. 32945.,32945.
• Parties: STATE of Connecticut v. Valdir M. LAGE.

141 Conn.App. 510

61 A.3d 581

STATE of Connecticut

v.Valdir M. LAGE.

No. 32945.

Appellate Court of Connecticut.

Argued Nov. 14, 2012.

Decided March 26, 2013.

April E. Brodeur, assigned counsel, for the appellant (defendant).

Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Kevin D. Lawlor, state's attorney, and Marjorie L. Sozanski, assistant state's attorney, for the appellee (state).

BEACH, ESPINOSA and DUPONT, Js.^*

DUPONT, J.

The defendant, Valdir M. Lage, appeals from the trial court's judgment denying his motion to vacate the judgments and withdraw his guilty pleas, related to six distinct charges,¹ which he entered at two separate proceedings. The present appeal is complicated by the fact that it represents the culmination of a series of charges and guilty pleas thereto, which resulted in a prison sentence and probation for each offense. The probation in each instance was violated by the defendant's subsequent arrest, with each arrest providing the basis for another sentence of probation, as well as the new substantive crime. On appeal, the defendant claims that the court erred in denying his motion to vacate the judgments and withdraw his guilty pleas because (1) the court failed to comply with the requirements of General Statutes § 54–1j² when it canvassed the defendantbefore accepting his plea of guilty to a violation of probation from a prior conviction of possession of narcotics and for the crime of burglary in the third degree, and (2) none of the defendant's six pleas were entered knowingly, intelligently or voluntarily because the court's canvass was improper and, therefore, violated his constitutional rights. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The defendant is a permanent resident of the United States. He came to the United States from Brazil and has been a lawful permanent resident since childhood, although he never acquired citizenship.³ On December 20, 2005, the defendant entered a guilty plea to possession of narcotics in violation of General Statutes § 21a–279 (a). The court canvassed the defendant and, after accepting his plea as satisfactory, sentenced him to one year incarceration, execution suspended, and two years of probation.

On April 3, 2008, the defendant pleaded guilty to burglary in the third degree, as well as admitting the violation of his 2005 probation resulting from the burglary conviction ⁴ (2008 proceeding). The court, Sequino, J., canvassed the defendant, asking if the pleas were entered voluntarily, if he had had an opportunity to discuss his pleas with his counsel and if he understood the possible immigration consequences of his pleas. After accepting the defendant's answers as satisfactory, the court sentenced him to three years incarceration, execution suspended after nine months, and three years of probation.

Subsequently, on September 8, 2009, the defendant admitted violating his probation in relation to the 2008 burglary conviction and pleaded guilty to separate charges of criminal trespass in the first degree in violation of General Statutes § 53a–107, interfering with an officer/resisting arrest in violation of General Statutes § 53a–167a and criminal mischief in the third degree in violation of General Statutes § 53a–117 (2009 proceeding). The defendant intended to enter a plea of guilty to each of these charges, which might have resulted in a suspended sentence with a possibility of up to twenty-seven months of incarceration, predicated on his willingness to enter and complete a drug treatment program. He indicated to the court that he had discussed the plea fully with his attorney and was satisfied with the advice he had received.

During the canvass, however, it came to the court's attention that the defendant was subject to a United States Bureau of Immigration and Customs Enforcement (immigration bureau) detainer based on his 2008 burglary conviction because he was not a United States citizen, and this detainer could preclude his participation in the treatment program. After a sidebar with the defendant's counsel, the court explained to the defendant that there was such a detainer, which might prohibit him from being released into the treatment program. The court told the defendant that if he were prohibited from entering the program, he would still have a chance to accept an alternate sentence of eighteen months incarceration without probation.

At that point, the court continued the canvass of the defendant, asking him specifically if he understood the possible immigration consequences of his plea and if he had gone over these with his attorney, to which the defendant answered in the affirmative. After the court was satisfied that the defendant's pleas were being entered intelligently, knowingly and voluntarily, it continued the sentencing hearing until the defendant's eligibility for the treatment program could be determined. At the subsequent sentencing hearing, the defendant's counsel indicated that the immigration bureau intended to detain the defendant, and the court, therefore, rendered an eighteen month sentence without probation against him in lieu of a possible maximum twenty-seven month sentence predicated on completion of the treatment program. The defendant was detained by the immigration bureau following the proceeding. ⁵ He subsequently moved the court to withdraw and vacate his pleas from the 2008 and 2009 proceedings. Additional facts will be set forth as necessary.

A hearing was held on December 20, 2010, on the defendant's motion to vacate the judgments and withdraw his admissions and guilty pleas from the 2008 and 2009 proceedings on the basis of the court's allegedly improper canvassing and failure to comply with § 54–1j. The court denied the defendant's motion in its entirety, holding that the court substantially complied with the statutory requirements of § 54–1j, addressed the defendant personally, determined that he had spoken with his attorney and that he understood the possible immigration consequences of his pleas. This appeal followed.⁶

I

The principal issue in this appeal is whether the court substantially complied with the requirements of § 54–1j when it accepted the defendant's guilty pleas at the [141 Conn.App. 517]2008 proceeding.⁷ The defendant claims that the court erred in denying his motion to vacate the judgments and withdraw his guilty pleas because the court did not comply substantially with the requirements of § 54–1j when it canvassed him regarding the possible immigration consequences of his pleas. We disagree.

We first set forth our standard of review. “[A guilty] plea, once accepted, may be withdrawn only with the permission of the court.... Section 54–1j (c) permits the defendant, not later than three years after the acceptance of his guilty plea, to move to withdraw his plea if he can show that the court failed to comply with the requirements of § 54–1j (a) [during the defendant's plea canvass]. The burden is always on the defendant to show a plausible reason for the withdrawal of a plea of guilty.... 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.” (Citation omitted; internal quotation marks omitted.) State v. Hall, 303 Conn. 527, 532–33, 35 A.3d 237 (2012).

The defendant claims that, although the court recited the language of § 54–1j when it canvassed him at the 2008 proceeding, it did not properly determine whether he understood the immigration consequences of his plea. Pursuant to State v. Malcolm, 257 Conn. 653, 662, 778 A.2d 134 (2001), however, “it [is] not necessary for the trial court to read the statute verbatim ... [and, instead] only substantial compliance with the statute is required to validate a defendant's guilty plea.” Although the court in this case actually recited the statute in its entirety, the defendant argues that the court failed to determine specifically whether he understood the possible immigration consequences of his guilty pleas, or if he had discussed these with his attorney.

In reference to the immigration consequences of the defendant's pleas to burglary in the third degree and violation of probation, the transcript of the canvass of the defendant from the 2008 proceeding provides in relevant part:

“The Court: If you are not a citizen of the United States, this is a felony, it could result in deportation, removal, denial of admission, exclusion from readmission, or denial of naturalization.... Any questions about anything I've said?

“The Defendant: No, ma'am.

“The Court: Do you agree to all of that?

“The Defendant: Yes, ma'am.

“The Court: And you discussed it all with your attorney?

“The Defendant: Yes, ma'am.

“The Court: Do you need any more time to talk to him?

“The Defendant: No, ma'am.

“The Court: Did anyone force or threaten you to enter this plea?

“The Defendant: No, ma'am.

“The Court: Are you doing it voluntarily of your own free will?

“The Defendant: Yes, ma'am.

“The Court: Any questions for me about anything I've said or that's happening?

“The Defendant: No, ma'am.

“The Court: Do you have anything you wish to say?

“The Defendant: No.

“The Court: Are you satisfied with your attorney's representation?

“The Defendant: Yes.”

During the 2010 hearing on the defendant's motion to withdraw his guilty pleas, the court found that, based on the previously mentioned questioning, the canvass was sufficient. The court noted that § 54–1j does not require that a defendant realize the likelihood of immigration consequences arising from a plea, but rather that he understands the possibility of them. We agree.

The defendant, moreover, claims that the language of § 54–1j requires that the warnings of the statute be delivered separately. He argues that by asking if he agreed with “all of that,” the court did not determine if...