State v. Marra

• Decision Date: 07 March 1978
• Citation: 387 A.2d 550,174 Conn. 338
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Thomas E. MARRA, Jr.

Page 550

387 A.2d 550

174 Conn. 338

STATE of Connecticut v. Thomas E. MARRA, Jr.

Supreme Court of Connecticut.

Argued Oct. 19, 1977.

Decided March 7, 1978.

Howard T. Owens, Jr., Bridgeport, for appellant (defendant).

D. Michael Hurley, Asst. State's Atty., with whom, on the brief, was C. Robert Satti, State's Atty., for appellee (state).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and SPEZIALE, JJ.

LOISELLE, Associate Justice.

The defendant pleaded guilty to the crime of conspiracy to commit larceny in the first degree in violation of §§ 53a-48 and 53a-122 of the General Statutes and to a second count of larceny in the first degree in violation of § 53a-122 of the General Statutes. Prior to sentencing, the defendant filed a motion to allow him to withdraw his pleas of guilty to both counts, claiming that they were not entered voluntarily and intelligently. The motion was denied and the court sentenced him on both counts. The sole issue on appeal is whether the court erred in refusing to allow the defendant to withdraw his pleas of guilty.

In order for a plea of guilty to be constitutionally valid, the record must affirmatively disclose that the defendant entered the plea voluntarily and intelligently. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274; Blue v. Robinson, 173 Conn. 360, 373, 377 A.2d 1108; Consiglio v. Warden, 160 Conn. 151, 162, 276 A.2d 773. The plea must be supported by a factual basis. State v. Battle, 170 Conn. 469, 473, 365 A.2d 1100. Such a factual basis is absent when the recited facts reveal less than all the elements of the crime charged. Id., 472, 365 A.2d 1100. Finally, "because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts." McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418. Unless the defendant has had real notice of the nature of the charge against him, the plea cannot constitute an intelligent admission. Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 49 L.Ed.2d 108. "(I)f a defendant's guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void." State v. Battle, supra, 473, 365 A.2d 1103.

In the present case, the court questioned the defendant as to the voluntariness of his pleas. To the court's questions as to whether he was satisfied with the advice and assistance of counsel, and whether he understood that he was giving up certain constitutional rights, including the right to trial, the right to cross-examine and confront his accusers, and the privilege against self-incrimination, the defendant answered in the affirmative. He denied that any threats, force or duress had induced him to enter his pleas, and he expressed understanding that those pleas could be withdrawn only with the court's permission, that the court was not bound by any recommendations made by the state's attorney, and that both offenses to which he pleaded were class B felonies carrying a maximum penalty of twenty years.

The defendant, however, claims that the court erred in denying his motion to withdraw the pleas, urging that the factual basis to which he assented at the time of the pleas was insufficient to render his pleas intelligent and voluntary. The findings reveal that prior to acceptance of the pleas, the assistant state's attorney recited a series of facts underlying the charges. Included in this recitation was the fact that "(t)hrough Blonder and Kernozek (codefendants) it was arranged that Marra would come up (from Bridgeport) and steal Park's car. Marra did come up and steal the car. . . . the vehicle was found in Marra's driveway in Bridgeport." To explain the findings more fully, the evidence printed in the appendix to the state's brief may be examined. State v. Memoli, 159 Conn. 433, 435, 270 A.2d 543; Quednau v. Langrish, 144 Conn. 706, 711, 137 A.2d 544; see also Practice Book §§ 628G, 628H. The appendix, including segments of the transcript of the lower court proceedings, reveals that Marra, along with another codefendant, came for the car. The keys had been left in the car, which was pointed out to them by Parks, the owner. After they took the car, the police were notified that it had been stolen.

General Statutes § 53a-119 defines larceny as occurring "when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner." The statute clearly requires that the taking be wrongful, accompanied by the requisite felonious intent. Although the present statute has broadened the scope of larceny, ¹ the element of intent has been retained from the prior statute ² and case law. Larceny continues to require "the existence of a felonious intent in the taker to deprive the owner of it permanently." State v. Banet, 140 Conn. 118, 122, 98 A.2d 530, 531. The facts on record fail to disclose such an intent. Even were the state to prove all such facts, a conviction for larceny could not stand, for, where property is taken with the knowing consent of the owner, larceny has not been committed. State v. Huot, 170 Conn. 463, 467-68, 365 A.2d 1144; State v. Banet, supra.

The state argues that since the defendant failed to attack the findings and conclusions of the court which denied his motion to withdraw his pleas, those pleas must stand. That, however, is not the case. In denying the defendant's motion, the court concluded only that the pleas had been voluntarily entered. The court did not conclude that the pleas were intelligently made with a full understanding of the nature of the charges and the consequence of the pleas. If the pleas entered were not both voluntary and intelligent, they are invalid as violative of due process. State v. Battle, supra. Further, even had the court concluded that the pleas were intelligently entered, the conclusion would have to fall as legally and logically inconsistent with the facts found. State ex rel. Golembeske v. White, 168 Conn. 278, 280, 362 A.2d 1354; Testone v. Allstate Ins. Co.,165 Conn. 126, 133, 328 A.2d 686. The facts found by the court essentially reiterate what transpired in court at the time the defendant entered his pleas. The defendant does not dispute those occurrences nor the findings of fact found by the court. The defendant finds issue only in the fact that the court denied his motion to withdraw his pleas and in its determination that the prior proceedings in which the pleas were accepted provided sufficient basis for a valid plea of guilty.

The prior proceedings were inadequate to establish a valid plea. Although the state's attorney, in his recitation of the underlying facts, characterized the defendant's conduct as "stealing the car," that characterization constitutes a legal conclusion rather than an underlying fact. In the present case, the defendant took the car that is a fact. But this fact alone, particularly in conjunction with the fact that the owner consented to the taking, does not support the legal conclusion that there exists sufficient factual basis for a plea of guilty to the crime of larceny, a crime requiring specific intent permanently to deprive the owner of that which is taken. The facts recited to the court and admitted by the defendant at the time the plea was entered provided an insufficient factual basis to support a plea of guilty to larceny.

The defendant similarly claims that the facts found do not support a plea of guilty to the crime of conspiracy to commit larceny. The facts contained in the record and in both briefs reveal that the conspiracy charge pertained to a conspiracy to defraud the insurance company which insured Park's car. To establish the crime of conspiracy under § 53a-48 of the General Statutes, it must be shown that an agreement was made between two or more persons "to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. The state must also show intent on the part of the accused that conduct constituting a crime be performed." State v. Ortiz, 169 Conn. 642, 645, 363 A.2d 1091, 1093. The existence of a formal agreement need not be established; it is sufficient to show that they are "knowingly engaged in a mutual plan to do a forbidden act." State v. Holmes, 160 Conn. 140, 149, 274 A.2d 153, 157.

The underlying facts found by the court in accepting the plea reveal only the intent of the other defendants knowingly to participate in the alleged conspiracy. The findings, amplified by the appendix to the state's brief, reveal the following facts as to the defendant's involvement: One of the codefendants stated that he would contact the defendant to take the car; the defendant, with a codefendant took the car, in which the keys were left, which was pointed out to them by the owner, and the car was found in the defendant's driveway in Bridgeport. The facts do not reveal that the defendant participated in any of the discussions pertaining to the conspiracy nor that he was involved in notifying the police or the insurance company after having taken the car. Boiled down to that which is attributable to the defendant alone, the facts merely reveal that the defendant, with the owner's consent, took the car and left it in his own driveway. Neither the finding nor the appendix to the state's brief reveals what information the defendant had concerning the incident, what Abraham Stein, the codefendant who was with the defendant when the car was taken, or anyone else gave to the defendant at any time, or what the defendant's purpose was in taking the car with the owner's consent.

It cannot, then, be said that the defendant's plea of guilty to conspiracy was intelligently, knowingly made. Facts supportive of the...