State v. Turner, 267 Conn. 414 (Conn. 1/20/2004)

• Decision Date: 20 January 2004
• Docket Number: (SC 16711)
• Citation: 267 Conn. 414
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT <I>v.</I> GARRICK TURNER.

Page 1

267 Conn. 414

STATE OF CONNECTICUT

v. GARRICK TURNER.

(SC 16711)

Supreme Court of Connecticut

Argued September 11, 2003

Officially released January 20, 2004

Sullivan, C. J., and Borden, Katz, Palmer and Vertefeuille, Js.

Syllabus

Convicted of the crimes of sexual assault in the second degree and risk of injury to a child, the defendant appealed to the Appellate Court claiming that the trial court improperly had denied his motion to withdraw his guilty plea. The defendant claimed that his plea was not knowingly or voluntarily made because his trial counsel had failed to inform him that his guilty plea, unlike a conditional plea of nolo contendere, waived his right to challenge on appeal the denial of his motion to suppress an incriminating statement that he had given to the police in the absence of Miranda warnings. The Appellate Court concluded that the defendant had nonfrivolous grounds to challenge the denial of his motion to suppress on appeal and that defense counsel's failure to inform him of his statutory (§ 54-94a) right to plead nolo contendere in order to preserve his right to appeal constituted ineffective assistance of counsel. That court reversed the trial court's judgment and remanded the case with direction to vacate the guilty plea, to accept the defendant's plea of nolo contendere, and to render judgment thereon, and the state, on the granting of certification, appealed to this court. Held that the defendant's claim of ineffective assistance of counsel was without merit: a review of the record having revealed that the defendant's interview with the police could not, as a matter of law, be construed as a custodial interrogation for Miranda purposes, the defendant failed to establish that he had nonfrivolous grounds to appeal from the trial court's denial of his motion to suppress, and, accordingly, defense counsel was not required to consult with him regarding a conditional plea of nolo contendere under § 54-94a; the issue of whether the defendant was in custody at the time of his interrogation was not debatable among jurists of reason, could not reasonably have been resolved differently, and did not raise questions deserving further appellate scrutiny, the defendant having testified that he voluntarily had gone to the police station with his father, that he had been told several times that he was not under arrest and that he was free to leave, and that he had not been threatened in any way.

(One justice dissenting)

Procedural History

Amended information charging the defendant with one count each of the crimes of sexual assault in the second degree and risk of injury to a child, brought to the Superior Court in the judicial district of Fairfield, geographical area number two, where the court, Turner, J., denied the defendant's motion to suppress certain evidence; thereafter, the defendant was presented to the court, B. Kaplan, J., on a plea of guilty; subsequently, the court denied the defendant's motion to withdraw the plea and rendered judgment of guilty in accordance with the plea, from which the defendant appealed to the Appellate Court, Lavery, C. J., and Dranginis and Dupont, Js., which reversed the trial court's judgment and remanded the case with direction to grant the defendant's motion to withdraw the guilty plea and to accept the defendant's plea of nolo contendere and to render judgment thereon, and the state, on the granting of certification, appealed to this court.

Reversed; judgment directed.

Michele C. Lukban, assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Joseph Harry, senior assistant state's attorney, for the appellant (state).

Carlton L. Hume, with whom were Tony Jorgensen and, on the brief, Tina J. Georgiades, for the appellee (defendant).

Opinion

BORDEN, J.

The state appeals, following our grant of certification, from the judgment of the Appellate Court reversing the defendant's conviction, rendered following a guilty plea, of sexual assault in the second degree and risk of injury to a child. The state claims that the Appellate Court improperly concluded that the defendant's guilty plea resulted from ineffective assistance of counsel. We reverse the judgment of the Appellate Court.

The defendant, Garrick Turner, was charged with sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), and risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21 (1).¹ Prior to trial, the defendant filed a motion to suppress a statement that he had made to the police, claiming that he had not been informed of his Miranda² rights. Following an evidentiary hearing, the trial court, Turner, J., denied the defendant's motion, and the defendant subsequently pleaded guilty to all charges. Thereafter, the defendant filed a motion to withdraw and vacate his guilty plea, claiming that he had received ineffective assistance of counsel. The trial court, B. Kaplan, J., denied the defendant's motion to withdraw his plea and rendered a judgment of conviction in accordance with the guilty plea.

On appeal to the Appellate Court, the defendant claimed that he had been denied due process of law due to ineffective assistance of counsel because his attorney had not informed him of the possibility of entering a conditional plea of nolo contendere pursuant to General Statutes (Rev. to 1999) § 54-94a³ and Practice Book § 61-6,⁴ thereby preserving the right to appeal from the denial of his motion to suppress. The Appellate Court reversed the judgment of the trial court, concluding that, due to ineffective assistance of counsel, the defendant's guilty plea had not been entered knowingly and voluntarily because he had not understood "that a guilty plea, unlike a nolo plea, would waive his right to appeal" from the denial of his motion to suppress. State v. Turner, 67 Conn. App. 708, 715, 789 A.2d 1058 (2002). Accordingly, the Appellate Court held that the "[trial] court abused its discretion in denying the defendant's motion to vacate his guilty plea." Id., 715-16. This certified appeal followed.⁵

The underlying facts and procedural history were set forth in the opinion of the Appellate Court. "On March 8, 1998, the defendant went to the Bridgeport police station. His father had received a telephone call the day before from Mark McDaniel, a sergeant, requesting to speak to the defendant. The defendant was eighteen years old, had no prior criminal history and had been living in the United States for only two years. The defendant resided with his father, who, along with the defendant's aunt, accompanied him to the police station.

"At the station, McDaniel questioned the defendant alone. The interrogation lasted about thirty to forty minutes, three to four minutes of which were recorded.⁶

McDaniel asked the defendant if he had engaged in sexual intercourse with the victim and [if so] when that had occurred. The defendant responded that he had engaged in sexual intercourse with the victim two times in March, 1998, when the victim was fifteen years old.⁷ The defendant was subsequently charged with sexual assault in the second degree and risk of injury to a child.

"Before entering his guilty plea, the defendant filed a motion to suppress his statement to the police, and an evidentiary hearing followed. The defendant's counsel called the defendant as his only witness. The defendant claimed that his statement to the police was inadmissible because he had been interrogated at the police station, under circumstances from which it could be inferred that he was in custody, without having been notified of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

"At the hearing, McDaniel admitted that he did not read the defendant Miranda warnings because the defendant was neither under arrest nor in custody. He testified that he told the defendant several times during the interrogation that he was free to leave and that he was not under arrest.⁸ McDaniel further testified that he did not threaten the defendant or pressure him into making his statement. The [trial] court concluded that the defendant failed to sustain his burden of proving that he was in custody at the time of the interview and therefore denied the motion to suppress. Thereafter, the defendant pleaded guilty to the charges of sexual assault in the second degree and risk of injury to a child.⁹

"On June 14, 2000, prior to sentencing, the defendant filed a motion to vacate and to withdraw his guilty plea on the ground that his trial counsel was ineffective in failing to inform him that by pleading guilty, he was waiving his right to appeal from the court's denial of his motion to suppress. See Practice Book § 39-27 (4). The defendant requested the withdrawal of his plea so that he could enter a new plea of nolo contendere in accordance with General Statutes [Rev. to 1999] § 54-94a and thereby preserve his right to appeal from the denial of his motion to suppress. The [trial] court denied the motion to withdraw on the ground that the defendant had not demonstrated ineffective assistance of counsel.¹⁰ The court sentenced the defendant to a total term of incarceration of ten years, execution suspended after nine months, and ten years conditional probation in accordance with the state's recommended sentence offered pursuant to its [guilty] plea agreement with the defendant. The defendant's appeal [to the Appellate Court] followed." State v. Turner, supra, 67 Conn. App. 709-11.

On appeal to the Appellate Court, the defendant claimed that his guilty plea had been the result of ineffective assistance of counsel because he had not been informed of his "statutory right" to plead nolo contendere, thereby preserving his right to appeal from the trial court's denial of his motion to suppress. Id., 711. In response, the state claimed that his counsel's failure to inform the defendant of his right to appeal...