State v. Perez

• Decision Date: 14 September 2004
• Docket Number: (AC 24417).
• Citation: 85 Conn. App. 27,856 A.2d 452
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. JEREMIAH PEREZ.

85 Conn. App. 27

856 A.2d 452

STATE OF CONNECTICUT v. JEREMIAH PEREZ.

(AC 24417).

Appellate Court of Connecticut.

Argued June 9, 2004.

Officially released September 14, 2004.

Foti, Schaller and DiPentima, Js.

Jane E. Carroll, special public defender, for the appellant (defendant).

Frederick W. Fawcett, supervisory assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Joseph T. Corradino, senior assistant state's attorney, for the appellee (state).

Opinion

FOTI, J.

The defendant, Jeremiah Perez, appeals from the judgment of conviction of assault in the first degree in violation of General Statutes § 53a-59 (a) (5), rendered after the trial court accepted his plea of nolo contendere. On appeal, the defendant claims that the court improperly (1) accepted his plea and (2) concluded that it did not have jurisdiction to grant his postsentencing motion to withdraw his plea. We affirm the judgment of the trial court.

The record reflects that by substitute information, the state charged the defendant with the crimes of attempt to commit murder, assault in the first degree, criminal possession of a firearm and carrying a pistol without a permit. On April 2, 2003, as a result of plea negotiations, the defendant filed a written plea of nolo contendere to the charge of assault in the first degree, and the state nolled the remaining charges against him. The court canvassed the defendant, found that a factual basis existed for the plea and found that the plea was knowing, intelligent and voluntary. The court found the defendant guilty and imposed a twelve year sentence of incarceration. On April 14, 2003, the defendant filed a motion to withdraw his plea on the ground that his trial counsel had rendered ineffective legal assistance and pressured him into entering the plea. On April 24, 2003, the court held a hearing on the defendant's motion and, without hearing any evidence or argument concerning the motion, ruled that it lacked jurisdiction to entertain the motion. This appeal followed.

I

The defendant first claims that the court improperly accepted his plea because the court "affirmatively misinformed [him] of the circumstances under which he would be bound by his plea . . . ." We disagree.

The record reflects that at the April 2, 2003 hearing, the prosecutor set forth the factual basis for the plea. The court canvassed the defendant concerning the rights he was giving up because of his plea, the sentence to be imposed and the voluntary nature of the plea. The defendant does not challenge these inquiries. The court inquired of the defendant: "Do you realize that once I accept your plea, you will not be able to withdraw without my permission?" The defendant responded affirmatively. After concluding its canvass, the court sentenced the defendant.

The court accepted the defendant's plea and sentenced the defendant at the same proceeding. The defendant correctly points out that after the conclusion of the proceeding at which he was sentenced, the operation of Practice Book § 39-26¹ precluded him from making a motion to withdraw his plea. The defendant now posits that his plea was "unknowing and involuntary" because the court's representation concerning his ability to withdraw his plea was false. The defendant argues that the court "created a misunderstanding about the circumstances under which [he] would be bound by his [plea] agreement" in that the court led him to believe that he could seek the court's permission to withdraw his plea, but did not inform him that such "permission would be unavailable seconds later when the judge pronounced sentence."

The defendant concedes that he failed to raise his claim at trial and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine codified in Practice Book § 60-5. We will review the claim under Golding because the record of the court's canvass is adequate for review, and a claim that the court improperly accepted the defendant's plea because it was not knowing, intelligent and voluntary is of constitutional magnitude.² See, e.g., State v. Silva, 65 Conn. App. 234, 240, 783 A.2d 7, cert. denied, 258 Conn. 929, 783 A.2d 1031 (2001). The claim, however, fails under Golding's third prong because the defendant has failed to demonstrate that a constitutional violation clearly exists that clearly deprived him of a fair trial.

Due process requires that "every valid guilty plea must be demonstrably voluntary, knowing and intelligent. . . ." State v. Watson, 198 Conn. 598, 604, 504 A.2d 497 (1986). "[T]he 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. . . . When a defendant pleads guilty, he waives important fundamental constitutional rights, including the privilege against self-incrimination, the right to a jury trial, and the right to confront his accusers. . . . These considerations demand the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and its consequences. . . .

"We, therefore, require the trial court affirmatively to clarify on the record that the defendant's guilty plea was made intelligently and voluntarily. . . . In order to make a knowing and voluntary choice, the defendant must possess an understanding of the law in relation to the facts, including all relevant information concerning the sentence. . . . The defendant must also be aware of the actual value of any commitments made to him by the court . . . because a realistic assessment of such promises is essential in making an intelligent decision to plead guilty. . . . A determination as to whether a plea has been knowingly and voluntarily entered entails an examination of all of the relevant circumstances." (Internal quotation marks omitted.) State v. Gordon, 69 Conn. App. 691, 696-97, 796 A.2d 1238 (2002); see Practice Book §§ 39-18 through 39-21. "[W]e conduct a plenary review of the circumstances surrounding [a] plea to determine if it was knowing and voluntary." State v. Groppi, 81 Conn. App. 310, 313, 840 A.2d 42, cert. denied, 268 Conn. 916, 847 A.2d 311 (2004).

Having reviewed the court's canvass in detail, we conclude that the court substantially complied with the provisions of Practice Book §§ 39-19 and 39-20, and the defendant does not argue to the contrary. Compliance with these provisions "ensure[s] that a defendant's plea is made in both a knowing and voluntary manner. Our Supreme Court has stated that a court may validate a guilty plea with substantial, rather than literal, compliance with these sections of the rules of practice. . . .

"There is no requirement that the defendant be advised of every possible consequence of such a plea.. . . [E]xcept for those inquiries either constitutionally mandated or required by our rules, the court is not obligated to assume the role of the defendant's counselor.. . . . Stated otherwise, [t]he failure to inform a defendant as to all possible indirect and collateral consequences does not render a plea unintelligent or involuntary in a constitutional sense." (Citations omitted; internal quotation marks omitted.) State v. Benitez, 67 Conn. App. 36, 43-44, 786 A.2d 520 (2001), cert. denied, 259 Conn. 922, 792 A.2d 855 (2002).

The defendant implicitly argues that the court promised him that he would have the right to withdraw his plea in the future. This is not the case. The court told the defendant that he could seek the court's permission to withdraw his plea. The court then sentenced the defendant. The defendant represented that he understood the sentence to be imposed. The defendant did not object to being sentenced immediately following the acceptance of his plea and, in this regard, waived his right to a presentence investigation.

Having reviewed all of the relevant circumstances surrounding the defendant's plea, we conclude that the defendant has failed to persuade us that it was not knowingly and voluntarily entered. The court did not mislead the defendant with regard to the consequences of his plea or the circumstances under which he would be bound by the plea agreement. The defendant apparently argues that the court should have waited an undetermined amount of time before sentencing him or should have informed him that once the court sentenced him, the court would lack the authority to grant a motion to withdraw the plea. No authority supports either proposition. The defendant views the court's statement as a promise to him, one that is not at all apparent from the statement or canvass itself, that the court would permit him to withdraw his plea in the future.

The defendant argues that State v. Garvin, 242 Conn. 296, 699 A.2d 921 (1997), and State v. Gordon, supra, 69 Conn. App. 691, support his proposition that the court "unquestionably created a misunderstanding about the circumstances under which the defendant would be bound by his [plea] agreement," thereby rendering his plea involuntary. We disagree.

The defendant in Garvin, having pleaded guilty to several crimes as part of a plea agreement with the state, failed to appear for sentencing. State v. Garvin, supra, 242 Conn. 300. When the defendant failed to appear, the trial court informed the defendant's counsel that it was no longer bound by the plea agreement and that it would not permit the defendant to withdraw his pleas. Id., 300-301. The defendant subsequently was apprehended and brought before the court. Id., 301. The court denied the defendant's motion to withdraw his plea as to one count and sentenced the defendant. Id. On appeal, the defendant argued that his guilty pleas were not knowing and voluntary because he did not understand that he could not withdraw his pleas if he failed to...