State v. Warner

• Decision Date: 03 May 2016
• Docket Number: No. 37624.,37624.
• Citation: 165 Conn.App. 185,138 A.3d 463
• Parties: STATE of Connecticut v. Blake WARNER.
• Court: Connecticut Court of Appeals

165 Conn.App. 185

138 A.3d 463

STATE of Connecticut

v.Blake WARNER.

No. 37624.

Appellate Court of Connecticut.

Argued Jan. 14, 2016.

Decided May 3, 2016.

Norman A. Pattis, New Haven, for the appellant (defendant).

Bruce R. Lockwood, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Kevin J. Dunn, senior assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and BEACH and FLYNN, Js.

DiPENTIMA, C.J.

The defendant, Blake Warner, appeals from the denial of his motion to withdraw his guilty pleas, made pursuant to Practice Book § 39–27(4),¹ and his request for an evidentiary hearing. Specifically, the defendant claims that the court should have conducted an evidentiary hearing to determine if his counsel, Attorney Frank Riccio, Jr., provided ineffective assistance by failing to conduct an independent investigation as to whether a purported witness for the state would testify against him. He also claims that the court “abused its discretion when presented with a prima facie claim of ineffective assistance of counsel—by way of a [State v. Fernando A., 294 Conn. 1, 7–8, 981 A.2d 427 (2009) ] violation—by flatly denying the defendant an opportunity to be heard on his claim and preventing him from perfecting the record needed for him to present his claim either on direct appeal or through a petition for a writ of habeas corpus.”² We agree with the parties that the defendant was entitled to an evidentiary hearing regarding Riccio's alleged ineffective assistance. Accordingly, we reverse the judgments of conviction, and remand the case for such a hearing. As to the defendant's Fernando A. claim, we conclude that the court did not abuse its discretion by denying his request for an evidentiary hearing regarding the validity of the protective order as a result of the collateral bar rule as stated by our Supreme Court in State v. Wright, 273 Conn. 418, 425–27, 870 A.2d 1039 (2005).

The following facts and procedural history inform our resolution of this appeal. On October 16, 2014, the defendant pleaded guilty under the Alford doctrine³ to strangulation in the second degree in violation of General Statutes § 53a–64bb and violation of a protective order in violation of General Statutes § 53a–223. In setting forth the factual basis for the plea in the first case, the state recounted that in the early morning of December 9, 2013, the defendant grabbed the victim⁴ by the throat, impeding her ability to breathe. At the defendant's arraignment that same day, the court issued a protective order. As to the factual basis for the violation of protective order in the second case, the state noted that on April 4, 2014, pursuant to a search and seizure warrant, the police found weapons in the defendant's attic, in violation of the protective order's prohibition of the possession of weapons.⁵ After a canvass, the court accepted the defendant's pleas, finding that they were knowingly and intelligently made with the assistance of counsel. The case was continued to January 5, 2015, for sentencing. The recommended sentence was five years incarceration, execution suspended after two years, and three years probation.

Prior to sentencing, the defendant filed a motion to withdraw his guilty pleas and a motion to vacate the protective order. At the sentencing hearing, new counsel, Attorney Norman A. Pattis, appeared on behalf of the defendant and requested a continuance to hold an evidentiary hearing on the defendant's motion to withdraw his guilty pleas. Pattis set forth two grounds for the motion to withdraw. First, immediately prior to his pleas, the defendant had been informed by Riccio that the state had a witness who would testify that the defendant had made certain inculpatory statements to him. The defendant then decided to enter guilty pleas. After the court accepted the pleas, the defendant confronted the purported witness, who denied that he was prepared to testify against the defendant or that he had heard the defendant inculpate himself. As a basis for withdrawing his pleas, the defendant alleged that Riccio rendered ineffective assistance of counsel by relaying this information to the defendant without first conducting an independent investigation of this witness prior to the defendant's pleas.

Second, Pattis noted that the defendant's pro se motion to vacate also alleged ineffective assistance of counsel as to the imposition of the protective order. Specifically, Pattis claimed that the public defender assigned to the defendant at his arraignment on December 9, 2013, neither requested a hearing pursuant to State v. Fernando A., supra, 294 Conn. at 25–26, 981 A.2d 427, nor asked the defendant if he wanted one. Pattis further argued that the defendant had made it clear that he desired a hearing on the imposition of the protective order.

In response, the state requested that the court proceed with sentencing immediately. After Pattis acknowledged that he was not challenging the adequacy of the plea canvass, the court ruled: “I think that the issues that had been raised should be raised in a habeas corpus proceeding as opposed to an alternative proceeding. So I am going to deny the defense's request for a continuance.” After the defendant exercised his right of allocution, the court sentenced him to the total agreed upon sentence of five years, execution suspended after two years to serve and three years of probation. The court entered permanent protective order prohibiting the defendant, inter alia, from assaulting the victim or entering her dwelling. This appeal followed.

In his appellate brief, the defendant claims that the court abused its discretion on two separate instances. “First, the court deprived the defendant of an evidentiary hearing ... in violation of State v. [ Fernando A., supra, 294 Conn. at 1, 981 A.2d 427 ]. Second, the court refused to provide the defendant with an opportunity to establish a record to support his claim of ineffective assistance of counsel prior to the imposition of sentence....” The state agrees with the latter claim that the defendant was entitled to an evidentiary hearing on his claim that counsel was ineffective for failing to investigate the purported state's witness. As to the defendant's other ground for withdrawing his plea, namely, that counsel was ineffective at his arraignment for failing to request a hearing regarding the continued viability of the protective order pursuant to Fernando A., the state disagrees that an evidentiary hearing was warranted. For the following reasons, we agree with the parties that the court abused its discretion in denying the defendant an evidentiary hearing as to the claim that Riccio had provided ineffective assistance by failing to conduct an independent investigation of the state's purported witness. Additionally, we agree with the state that the defendant's Fernando A. claim fails as a result of the collateral bar rule.

Our standard of review for the trial court's decision on a motion to withdraw a guilty plea under Practice Book § 39–27 is abuse of discretion. See State v. Andrews, 253 Conn. 497, 505, 752 A.2d 49 (2000). Further, while generally our case law holds that a claim of ineffective assistance of counsel in a criminal matter must be made through a writ of habeas corpus rather than by direct appeal, our rules of practice provide an exception. See Practice Book § 39–27(4) ; see also State v. Scales, 82 Conn.App. 126, 129, 842 A.2d 1158, cert. denied, 269 Conn. 902, 851 A.2d 305 (2004).

In order to prevail on this claim, the defendant “must satisfy two requirements.... First, he must prove that the assistance was not within the range of competence displayed by lawyers with ordinary training and skill in criminal law.... Second, there must exist such an interrelationship between the ineffective assistance of counsel and the guilty plea that it can be said that the plea was not voluntary and intelligent because of the ineffective assistance.” (Internal quotation marks omitted.). State v. Nelson, 67 Conn.App. 168, 177, 786 A.2d 1171 (2001).

We are guided in our analysis of the defendant's claim here by this court's decision in State v. Salas, 92 Conn.App. 541, 885 A.2d 1258 (2005). In Salas, the defendant was charged with sexual assault in the second degree and risk of injury to a child. Id., at 542, 885 A.2d 1258. The defendant reached a plea agreement with the state, and the court canvassed him regarding his plea of nolo contendere.

Id., at 543, 885 A.2d 1258. Following his plea, the defendant obtained new counsel and sought to withdraw his plea. Id. Specifically, his counsel obtained a transcript of the plea canvass and filed motions to withdraw the plea and for an evidentiary hearing. Id. The court denied the motions filed on behalf of the defendant. Id.

On appeal, the defendant in Salas argued that the court improperly denied his motion for an evidentiary hearing. Id., at 544, 885 A.2d 1258. Specifically, he claimed that “because he offered allegations of specific, demonstrative incidents of his attorney's ineffectiveness ... the court abused its discretion in denying his motion for an evidentiary hearing.” (Internal quotation marks omitted.) Id. At the outset of our analysis, we recited the following: “After a guilty plea is accepted but before the imposition of sentence the court is obligated to permit withdrawal upon proof of one of the grounds in [Practice Book § 39–27 ]. An evidentiary hearing is not required if the record of the plea proceeding and other information in the court file conclusively establishes that the motion is without merit....

“In considering whether to hold an evidentiary hearing on a motion to withdraw a guilty plea the court may disregard any allegations of fact, whether contained in the motion or made in an offer of proof, which are either conclusory, vague or oblique. For the purposes of determining whether to hold an evidentiary hearing, the court...