State v. Lopez

• Decision Date: 27 May 2003
• Docket Number: (AC 22290)
• Citation: 822 A.2d 948,77 Conn. App. 67
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. LEONARDO LOPEZ.

77 Conn. App. 67

822 A.2d 948

STATE OF CONNECTICUT v. LEONARDO LOPEZ.

(AC 22290)

Appellate Court of Connecticut.

Argued October 23, 2002.

Officially released May 27, 2003.

Dranginis, Flynn and Bishop, Js.

Wesley S. Spears, for the appellant (defendant).

James M. Ralls, assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Judith H. Rothschild, assistant state's attorney, and for the appellee (state).

Opinion

DRANGINIS, J.

The defendant, Leonardo Lopez, appeals from the judgments of conviction, rendered after his guilty plea under the Alford doctrine,¹ to reckless endangerment in the first degree for having live extension cords between two properties while children were in the area in violation of General Statutes § 53a-63,² to failing to abate a septic system overflow in violation of General Statutes § 19a-36,³ to violating the fire code (six counts) in violation of General Statutes § 29-295⁴ and to violating the health code (five counts) in violation of General Statutes § 47a-52.⁵ On appeal, the defendant claims that the trial court improperly concluded (1) that his plea was knowingly and voluntarily made, and (2) that he breached his plea agreement. The defendant further claims that he was denied effective assistance of counsel. We affirm the judgments of the trial court.

The record and transcript of the proceedings before the trial court reveal the following relevant facts. The defendant is the owner of three residential buildings located in Waterbury. On April 9, 2001, the defendant pleaded guilty under the doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), to reckless endangerment and various fire code and health code violations that occurred between October, 1999, and October, 2000.⁶ The court canvassed the defendant in accordance with Practice Book §§ 39-19 and 39-20,⁷ and found the plea to be entered knowingly and voluntarily. The plea of guilty to the violations was entirely conditioned on the defendant's abating the violations as well as the payment of a $3000 contribution to a nonprofit charity. The parties further agreed that if the defendant abided by the conditions of the plea agreement, and the court so found, the state would enter a nolle prosequi to the charges; if he failed to abide by the agreement, he would serve a two year prison sentence suspended after eighty four days, plus probation. At the conclusion of the proceeding, the court set July 2, 2001, as the date by which the defendant had to complete the repairs.

Upon his return to court, the defendant had failed to take advantage of that time to correct the housing code violations cited by the fire department and health department. The court raised the defendant's bond to $40,000 with the understanding that he had until August 8, 2001, to repair the remaining violations. The defendant still did not successfully complete the repairs, and on August 14, 2001, the court sentenced him to a term of two years imprisonment, suspended after eighty four days, followed by three years of probation. The defendant did not seek to withdraw his plea at any point. This appeal followed.

I

The defendant first claims that the court improperly accepted his guilty plea because it was not made knowingly, intelligently and voluntarily. Specifically, the defendant argues that the court did not adequately explain the terms of the plea agreement and improperly accepted his plea without first ascertaining whether he understood the elements of the charged offenses. He further argues that the court failed to inquire as to whether his counsel had advised him of the nature of each offense.⁸ We do not agree.

Because he did not attempt to withdraw his plea prior to sentencing, the defendant did not preserve his claim for appellate review. Accordingly, he requests that we review his claims under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), as refined by State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).⁹ We conclude that the defendant has satisfied the first two prongs of Golding because the record is adequate for review, and the claim that his plea was not knowingly and voluntarily made is of constitutional magnitude. See State v. Badgett, 200 Conn. 412, 418, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). We conclude, however, that his claim must fail because he has not demonstrated that the alleged due process violation "clearly exists and clearly deprived [him] of a fair trial. . . ." State v. Golding, supra, 240.

An overview of the law governing guilty pleas is necessary for our disposition of the defendant's claim. "It is axiomatic that the trial court judge bears an affirmative, nondelegable duty to clarify the terms of a plea agreement. [U]nless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable." (Internal quotation marks omitted.) State v. Winer, 69 Conn. App. 738, 745, 796 A.2d 491, cert. denied, 261 Conn. 909, 806 A.2d 50 (2002). The United States Supreme Court delineated the requirements for a valid guilty plea in Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). See State v. Benitez, 67 Conn. App. 36, 42, 786 A.2d 520 (2001), cert. denied, 259 Conn. 922, 792 A.2d 855 (2002). "Boykin requires that before accepting a defendant's plea, a trial court must inform him of three core constitutional rights: His right to be free of compulsory self-incrimination, and his rights to a jury trial and to confront his accusers. . . . Those rights also are guaranteed by the constitution of Connecticut, article first, § 8, as amended by article seventeen of the amendments."¹⁰ (Citations omitted; internal quotation marks omitted.) Id. Additionally, "[t]he determination as to whether a plea has been knowingly and voluntarily entered entails an examination of all of the relevant circumstances [and] the plea may satisfy constitutional requirements even in the absence of literal compliance with the prophylactic safeguards of [Practice Book §§ 39-19 and 39-20]." (Internal quotation marks omitted.) State v. Silva, 65 Conn. App. 234, 241-42, 783 A.2d 7, cert. denied, 258 Conn. 929, 783 A.2d 1031 (2001).

Finally, "[w]e note that with respect to Golding review, we construe the question of whether the defendant knowingly and voluntarily entered her plea based on her understanding of the binding nature of that plea as similar to questions of voluntariness of the plea raised in the context of a defendant's knowledge of the sentencing possibilities. . . . Therefore, to satisfy the third prong of Golding in the present case, we must determine whether the defendant was aware of actual sentencing possibilities, and, if not, whether accurate information would have made any difference in his decision to enter a [guilty] plea." (Citation omitted; internal quotation marks omitted.) State v. Gordon, 69 Conn. App. 691, 695-96, 796 A.2d 1238 (2002).

With those principles in mind, we now address the defendant's claim. The defendant contends that the record reveals that neither the court nor his counsel explained the essential elements of the housing code or fire code violations with which he was charged. "The fact that an allegation of noncompliance with [a rule of practice] may sometimes have constitutional dimensions does not . . . establish the existence of such a constitutional nexus in every case." (Internal quotation marks omitted.) State v. Wideman, 38 Conn. App. 581, 585, 663 A.2d 409, cert. denied, 235 Conn. 907, 665 A.2d 906 (1995). "The United States Supreme Court has stated that where a trial court does not inform a defendant during a plea proceeding about the elements of the crime charged, even without such an express representation, it may be 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. State v. Williams, [60 Conn. App. 575, 581-82, 760 A.2d 948, cert. denied, 255 Conn. 922, 763 A.2d 1043 (2000)], quoting Henderson v. Morgan, 426 U.S. 637, 647, 96 S. Ct. 2253, 49 L. Ed. 2d 108 (1976)." (Internal quotation marks omitted.) State v. Lugo, 61 Conn. App. 855, 864, 767 A.2d 1250, cert. denied, 255 Conn. 955, 772 A.2d 153 (2001). Although the record does not support the presumption that defense counsel informed the defendant of the elements of the crimes charged,¹¹ our review of the record reveals that the defendant was served with notice of the code violations and that the prosecutor recited the underlying facts that tracked those violations.¹² See State v. Wideman, supra, 587.

Further, an examination of the transcript of the defendant's plea canvass indicates that the court did fully inform the defendant that by pleading guilty, he was waiving his privilege against self-incrimination, his constitutional right to a jury trial and his right to confront his accusers.¹³ Additionally, the record indicates that the defendant entered his guilty pleas of his own volition, without any force or threats by any other persons, and that he was certain that he wanted to plead guilty to the charges against him. Given the court's inquiries and the defendant's responses, the record demonstrates that even if the court expressly had stated the elements of the crimes, the defendant's decision would not have been different. We conclude, therefore, that the court adequately informed the defendant of the terms of the plea agreement, and the court's failure to inform him explicitly of all the elements of the charges did not render his guilty plea to the violations unknowing or involuntary.

II

The defendant next claims that the court improperly found that he had breached his plea agreement. We disagree.

Our Supreme Court has held that a plea agreement is akin to a contract and that the well established...