State v. Malcolm

• Decision Date: 21 August 2001
• Docket Number: (SC 16389)
• Citation: 257 Conn. 653,778 A.2d 134
• Parties: STATE OF CONNECTICUT v. MAURICE S. MALCOLM
• Court: Connecticut Supreme Court

257 Conn. 653

778 A.2d 134

STATE OF CONNECTICUT v. MAURICE S. MALCOLM

(SC 16389)

Supreme Court of Connecticut.

Argued January 9, 2001.

Officially released August 21, 2001.

McDonald, C. J., and Norcott, Katz, Sullivan and Vertefeuille, Js.¹ Robert M. Spector, deputy assistant state's attorney, with whom were James R. Turcotte, supervisory assistant state's attorney, and, on the brief, Michael Dearington, state's attorney, for the appellant (state).

Michael Boyle, for the appellee (defendant).

Opinion

SULLIVAN, J.

The issue in this appeal is whether the trial court improperly granted the defendant's motion to withdraw his guilty plea, on the grounds that, in accepting the guilty plea, the trial court had failed to mention specifically all three immigration and naturalization consequences listed in General Statutes § 54-1j² that could result from a guilty plea by a defendant who is not a United States citizen. We reverse the ruling of that court.

On or about December 11, 1996, undercover Hamden police officers made arrangements to purchase three ounces of marijuana from someone named "Mo" for $375. A meeting was held at an arranged location, and the defendant, Maurice S. Malcolm, arrived with the marijuana and was arrested. The defendant appeared to be under the influence of marijuana at the time.

The defendant was charged with the sale of a controlled substance in violation of General Statutes § 21a-277 (b),³ possession of a controlled substance, less than four ounces of marijuana, in violation of General Statutes § 21a-279 (c),⁴ and conspiracy to sell a controlled substance in violation of General Statutes §§ 53a-48 and 21a-277.⁵ On August 20, 1998, after coming to an agreement with the state, the defendant pleaded guilty to the sale of marijuana in violation of § 21a-277 (b). Although the defendant and the state had agreed on a sentence of five years imprisonment, execution suspended, with a two year period of probation, the trial court sentenced the defendant to three years imprisonment, execution suspended, and two years of probation.⁶

On or around May 10, 1999, the Immigration and Naturalization Service took the defendant into custody and instituted deportation proceedings against him. The defendant was transferred to an Immigration and Naturalization Service detention facility in Oakdale, Louisiana. On May 20, 1999, the defendant filed an emergency motion to vacate the judgment and withdraw his guilty plea on the grounds that the trial court failed to comply with § 54-1j in accepting his guilty plea and that he was likely to be deported within two weeks. The trial court granted the motion on June 4, 1999. The state, on the granting of permission, appealed to the Appellate Court, and this court transferred the appeal to itself pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. On appeal, the state claims that the trial court improperly found that the defendant's guilty plea canvass did not comply with § 54-1j and, therefore, improperly vacated the defendant's conviction. We agree with the state.

I FINAL JUDGMENT

The state argues that the trial court's vacating of the defendant's conviction is an appealable final judgment under State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). We agree.

In Curcio, we held that "[a]n otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them." Id. The state relies on the second prong of this test, which "focuses not on the proceeding involved, but on the potential harm to the appellant's rights." Id., 33. It points out that, in this case, the defendant pleaded guilty on August 20, 1998, in exchange for a sentence of three years imprisonment, suspended after thirty days served, and two years probation. The defendant had already served the thirty days in lieu of posting bond at the time that the sentence was imposed. In reliance on the defendant's representations at the plea canvass and on the existence of a final, partially executed judgment against the defendant, the state then destroyed the evidence against him.

We conclude that these circumstances distinguish this case from State v. Ross, 189 Conn. 42, 454 A.2d 266 (1983). In that case we held that a judgment of dismissal of the charges, with prejudice, entered on the state's own motion, was "a sufficiently serious precondition to the right of appeal to provide adequate assurance that this procedure will not be resorted to lightly"; id., 50-51; and allowed the appeal. In the present case, although the state has not dismissed the charges against the defendant as a precondition to the appeal, in reasonable reliance on the defendant's representations that he had discussed the immigration consequences of his plea with his lawyers, it has destroyed the evidence against him, thereby significantly impairing its ability to retry him. "A presentence order will be deemed final for purposes of appeal only if it involves a claimed right the legal and practical value of which would be destroyed if it were not vindicated before trial." Internal quotation marks omitted.) State v. Curcio, supra, 191 Conn. 33-34. Because the practical value of the state's right to seek a judgment against the defendant will be destroyed if it is not allowed to appeal, we conclude that the trial court's ruling vacating the conviction and allowing the defendant to withdraw the guilty plea was an appealable final judgment under the second prong of Curcio.

II COMPLIANCE WITH GENERAL STATUTES § 54-1j

The defendant claims that the trial court did not comply with § 54-1j⁷ before accepting his plea. At the plea canvass, the trial court questioned the defendant as follows: "The law says that I have to tell you that if you're not a citizen of the United States, conviction of this offense can result in your being deported, being denied admission to the United States or being denied readmission to the United States, have you discussed that with your lawyers too?" The defendant responded, "Yes." The court then asked, "Is there anything you want to ask your lawyer right now? Take a minute if you do," and the defendant responded, "No." The defendant points out that § 54-1j provides that the defendant shall be warned about each of three potential consequences of a guilty plea: (1) deportation; (2) denial of admission to the United States; and (3) denial of naturalization. The defendant argues that the trial court's instruction, which warned of only deportation and denial of admission, was improper. The state contends that the trial court's advisement substantially complied with § 54-1j and was, therefore, proper. We agree with the state.

This court previously has not considered whether a trial court must strictly comply with § 54-1j. Other jurisdictions, however, have addressed the issue. In Daramy v. United States, 750 A.2d 552, 554 (D.C. 2000),⁸ the trial court instructed the defendant, who was not a citizen, that the "`Immigration and Naturalization Service could review your status to decide whether to allow you to remain in the United States or to return to your home country. If you were required to depart, put it plainly, if you were deported, you could be barred from re-entry at some future date.'" As in the present case, the trial court in Daramy did not mention the denial of naturalization. The District of Columbia Court of Appeals looked to the legislative history of the District of Columbia statute and found the statute to be a legislative response to the apparent "reluctance of the courts to grant a motion to withdraw a guilty plea when the defendant had not been advised of potential consequences with respect to the prisoner's immigration status." Id., 555-56. The court found that the purpose of the statute was to put noncitizens on notice that a plea of guilty could result in immigration consequences. Id., 556. It concluded that, even though the trial court did not warn the defendant that he could be denied naturalization, he could have inferred such a consequence because he could not have been deported if he were naturalized. Id., 556-57. The court held that, while it would have been better for the trial court to have read the statute verbatim, the warning as given was acceptable. Id.; see also People v. Superior Court, 23 Cal. 4th 183, 194, 199, 999 P.2d 686, 96 Cal. Rptr. 2d 463 (2000)<sup>9</sup> (where trial court did not specifically mention one potential consequence listed in statute, namely that defendant could be excluded from admission to United States, court held that, under state constitution, to vacate plea, defendant must show he was prejudiced by trial court's noncompliance with statute); Delatorre v. State, 957 S.W.2d 145, 150-51 (Tex. App. 1997) (trial court's instruction substantially complied with statute "because it included the most severe action which could have befallen the defendant," namely deportation); Garcia v. State, 877 S.W.2d 809, 813 (Tex. App. 1994) ("trial court's admonishment, `if you're not a citizen or if you're not legally in this country, that it could mean that you would have to be sent back to your original country,' substantially complied" with Texas statute); State v. Garcia, 234 Wis. 2d 304, 310-11, 312, 610 N.W.2d 180 (App. 2000) (warning sufficient, despite the fact that it did not follow statute¹⁰ verbatim, because defendant confirmed that he understood risk of deportation, was instructed that his status would be uncertain and deportation prime consideration in plea negotiation). We agree with the reasoning of these cases and conclude that it was not necessary for the trial court to read the statute verbatim. We conclude, rather, that only substantial compliance with the statute is required to validate a defendant's guilty plea.

Moreover, this court repeatedly has held that...