State v. Lugo

• Decision Date: 20 February 2001
• Docket Number: (AC 19698)
• Citation: 767 A.2d 1250,61 Conn. App. 855
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. JOSE LUGO

61 Conn. App. 855

767 A.2d 1250

STATE OF CONNECTICUT v. JOSE LUGO

(AC 19698)

Appellate Court of Connecticut.

Argued November 27, 2000.

Officially released February 20, 2001.

Landau, Spear and Mihalakos, Js. Donald D. Dakers, special public defender, for the appellant (defendant).

James M. Ralls, assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Margaret Kelley, assistant state's attorney, for the appellee (state).

Opinion

SPEAR, J.

The defendant, Jose Lugo, appeals from the judgment of conviction rendered following his guilty plea under the Alford doctrine¹ to the crimes of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a),² possession of narcotics with intent to sell within 1500 feet of a public housing project in violation of General Statues § 21a-278a (b)³ and failure to appear in the first degree in violation of General Statutes § 53a-172 (a) (1).⁴ The defendant claims that the trial court improperly accepted his guilty plea because the court failed to inform him of (1) the maximum sentence that could be imposed for each individual charge and (2) the nature of the charges to which he pleaded guilty. He claims that these omissions violated Practice Book § 39-19⁵ and his constitutional right to due process because he did not knowingly and voluntarily plead guilty. We disagree and affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of this appeal. On October 1, 1997, in a public housing project, a police officer observed the defendant participating in two transactions that appeared to involve the sale of narcotics. The defendant walked away as police officers approached, and, as he retreated from them, he dropped a white, cylindrical container. Soon thereafter, the police officers arrested the defendant and found $110 in his wallet. A police officer also retrieved the white, cylindrical container, which contained forty-two folds of heroin.

On the second day of trial, defense counsel informed the court that the defendant wanted to plead guilty under the Alford doctrine, rather than to proceed with the trial. When counsel informed the court that the defendant wanted to plead guilty, counsel emphasized that the defendant was aware of the fact that there was no sentencing arrangement or recommendation in exchange for the plea.

To determine whether the defendant's plea was voluntary, the court asked the defendant several questions during the plea canvass. In summary, the court asked the defendant if his attorney had reviewed with him the elements of the crimes with which he was charged, as well as the minimum and maximum penalty the court could impose in connection with the charges. The defendant replied, "Yes, Your Honor."⁶ Later in the canvass, the court also addressed defense counsel and inquired whether he was satisfied that the defendant understood the explanation of the elements of the crimes and the penalties. Defense counsel replied, "Yes, Your Honor."

The court specifically asked the defendant if he understood that he faced a maximum sentence of twenty-three years, and the defendant replied, "Yes, Your Honor." Then, the court asked the defendant if he understood that there was a three year mandatory sentence for the charge of possession of narcotics with intent to sell within 1500 feet of a public housing project, a charge that would run consecutively to any sentence imposed. At first, the defendant replied, "Um—no." Counsel interrupted at that point and took the defendant aside. After their discussion, defense counsel stated, "He understands, Your Honor." The court again addressed the defendant, emphasizing that a three year consecutive sentence would be imposed and that the sentence would not be suspended in any way, but would be in addition to and consecutive to any term of imprisonment that the court imposed in connection with the guilty plea. In response to the court's query whether he understood, the defendant stated, "Yes, Your Honor."

The court accepted the defendant's plea. Thereafter, the court imposed a total effective sentence of eighteen years for the three counts.⁷ This appeal followed.

Because he did not attempt to withdraw his plea prior to sentencing, the defendant concedes that he did not preserve his claims for appellate review. Accordingly, he requests that we review his claims under the doctrine enunciated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). In Golding, our Supreme Court held that "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original.) Id. "The first two questions relate to whether a defendant's claim is reviewable, and the last two relate to the substance of the actual review." (Internal quotation marks omitted.) State v. Williams, 60 Conn. App. 575, 578-79, 760 A.2d 948, cert. denied, 255 Conn. 922, 763 A.2d 1043 (2000).

Here, the record is adequate for review, and the defendant's claims are of constitutional magnitude. Nevertheless, the defendant's claims must fail because no constitutional violations exist that deprived him of a fair trial.

To ensure that guilty pleas are entered knowingly, voluntarily and intelligently, Practice Book § 39-19 requires that prior to accepting a guilty plea the court shall inform the defendant of "[t]he nature of the charge to which the plea is offered" and "[t]he 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...."

"It is axiomatic that unless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable.... A plea of guilty cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.... These principles are in accord with Practice Book § 711 (1) et seq. [now § 39-19]." (Citations omitted; 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). We are bound by our Supreme Court's decision in 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), in which the court held that "[t]o the extent that the defendant's claim implicates the failure of the trial court to apprise him of the constitutionally mandated requirements for a valid plea ... his claim is properly reviewable despite the absence of a timely motion to withdraw the plea.... While the federal constitution requires that the record of the plea canvass indicate the voluntariness of any waiver of ... three core constitutional rights [enunciated in Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)] ... it does not require that the trial court go beyond these constitutional minima.... A defendant can voluntarily and understandingly waive these rights without literal compliance with the prophylactic safeguards of Practice Book [§§ 39-19⁸ and 39-20⁹]. Therefore ... precise compliance with the provisions [of the Practice Book] is not constitutionally required. [The court's analysis, therefore, should] focus on whether the federal constitutional principles ... were satisfied rather than on meticulous compliance with the provisions of the Practice Book." (Emphasis in original; internal quotation marks omitted.) State v. Williams, supra, 60 Conn. App. 579-80; see also State v. Domian, 235 Conn. 679, 686-87, 668 A.2d 1333 (1996).

To prevail, the defendant must establish that the court failed to obtain a proper waiver of at least one of the three core constitutional rights identified in Boykin, thereby depriving him of due process. See State v. Williams, supra, 60 Conn. App. 581. "[T]o discern whether the defendant's claims are sufficient to satisfy the third prong of the Golding test, 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." (Internal quotation marks omitted.) State v. Peterson, 51 Conn. App. 645, 656-57, 725 A.2d 333, cert. denied, 248 Conn. 905, 731 A.2d 310 (1999); see also State v. Domian, supra, 235 Conn. 688.

I

The defendant first claims that his guilty plea was not entered knowingly and voluntarily because the court failed to inform him of the maximum sentence for each individual charge in violation of his constitutional right to due process. We do not agree.

The defendant failed to cite any authority to support this assertion, and we are not aware of any. The court was not required to apprise him of more than the constitutional minima established in Boykin and Badgett. State v. Williams, supra, 60 Conn. App. 579-80; see also State v. Domian, supra, 235 Conn. 686-87. The court satisfied this requirement when it informed the defendant of the three core constitutional rights, namely, his rights to be free of compulsory self-incrimination, to a jury trial and to confront his accusers.

Even if this court were to assume, arguendo, that the defendant had a constitutional right to know the maximum sentence for each individual charge, nothing in the record shows that such knowledge would have affected...