State v. Turner

• Decision Date: 20 January 2004
• Docket Number: (SC 16711).
• Citation: 267 Conn. 414,838 A.2d 947
• Parties: STATE OF CONNECTICUT v. GARRICK TURNER.
• Court: Connecticut Supreme Court

267 Conn. 414

838 A.2d 947

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.

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 did not amount to ineffective assistance counsel because any appeal from the trial court's motion to suppress would have been frivolous. Id., 714. The Appellate Court concluded that it was "possible that the defendant might have prevailed on his claim that his Miranda rights were violated because he believed he was in custody due to his inexperience with the criminal system." Id. Accordingly, the Appellate Court held that, because "the defendant had nonfrivolous grounds for an appeal," defense counsel's failure to inform the defendant "of his statutory right to plead nolo contendere" constituted ineffective assistance of counsel in accord with this court's holding in Ghant v. Commissioner of Correction, 255 Conn. 1, 9, 761 A.2d 740 (2000). State v. Turner, supra, 67 Conn. App. 714. The Appellate Court remanded the case to the trial court "with direction to vacate the guilty plea, to accept the defendant's plea of nolo contendere pursuant to § 54-94a and to render judgment thereon." Id., 716. Additional facts will be presented as necessary.

On appeal to this court, the state claims that the Appellate Court improperly concluded that defense counsel had been ineffective for failing to consult with the defendant about the prospect of entering a conditional plea of nolo contendere under § 54-94a. Specifically, the state argues that, because the defendant was not in custody for Miranda purposes, any appeal from the trial court's denial of his motion to suppress would have been frivolous. Thus, the state contends, because the defendant had no nonfrivolous grounds for an appeal, defense counsel was not ineffective for failing to consult with the defendant regarding whatever appellate rights § 54-94a would have preserved. We agree.¹¹

We first turn to a brief review of the law governing pleas of nolo contendere conditional on the right to appeal as set forth in § 54-94a and Practice Book § 61-6. Central to that review is the notion that, at the time of the trial court proceedings in the present case, a plea of nolo contendere conditioned on the defendant's right to take an appeal was, unlike a guilty plea, subject to the determination of the trial court that its ruling on the motion at issue would "have a significant impact upon the disposition of the case in the trial court. . . ." Practice Book § 61-6 (a) (2) (i); see footnote 4 of this opinion. In this connection, we note that § 54-94a was enacted in 1982 by No. 82-17 of the 1982 Public Acts and has been amended twice; once in 1988 by No. 88-19 of the 1988 Public Acts, and again in 2001 by No. 01-13 of the 2001 Public Acts. Practice Book § 61-6 was originally adopted in 1986 as § 4003, and although the rule was designed to implement the statute, it contains language slightly different from that used in § 54-94a.¹² See footnotes 3 and 4 of this opinion. Because the defendant attempted to withdraw his guilty plea on June 14, 2000, we evaluate his claim in light of the statute and rule of practice as they existed as of that date.

By enacting § 54-94a, the "legislature in 1982 altered the broad waiver of constitutional rights implicit in a plea of guilty or nolo contendere . . . . Section 54-94a is intended to promote judicial economy by allowing the parties to...