State v. Winer

• Decision Date: 14 May 2002
• Docket Number: (AC 20476)
• Citation: 69 Conn. App. 738,796 A.2d 491
• Parties: STATE OF CONNECTICUT v. SCOTT WINER
• Court: Connecticut Court of Appeals

69 Conn. App. 738

796 A.2d 491

STATE OF CONNECTICUT v. SCOTT WINER

(AC 20476)

Appellate Court of Connecticut.

Argued November 29, 2001.

Officially released May 14, 2002.

Lavery, C. J., and Landau and Dranginis, Js. Louis S. Avitabile, for the appellant (defendant).

Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Brian Preleski, assistant state's attorney, for the appellee (state).

Opinion

LAVERY, C. J.

The defendant, Scott Winer, appeals from the judgments of conviction rendered after his pleas of nolo contendere to two counts of risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21¹ and one count of risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21 (2).² On appeal, the defendant claims that the trial court improperly denied his postsentence motions to vacate the judgments and to withdraw his pleas of nolo contendere because they were involuntary, unknowing and unconstitutional. The defendant asserts that his pleas were invalid because (1) the state failed to act within the terms of the plea agreement, (2) he did not demonstrate an understanding of the law, (3) he did not have an understanding of the relevant sentencing information because the substance of the plea agreement was not fully communicated to him, (4) the sentence that was imposed was illegal and (5) the trial court was not the most appropriate venue to seek a remedy for his claims. In essence, the defendant's appeal is based on two issues: (1) the sentence that he received from the trial court was not in accordance with the plea agreement he entered into with the state; and (2) the sentence he received was illegal. We disagree with the defendant's first claim and agree with his second claim and, therefore, we reverse the judgments of the trial court in part.

The following facts and procedural history are relevant to this appeal. The defendant was arrested for a series of acts of sexual misconduct that occurred between July, 1995, and March, 1997, involving three different males under the age of sixteen. On January 5, 1998, the defendant, who was represented by counsel, entered three nolo contendere pleas to the charges of risk of injury to a child. In exchange for entering the pleas, the trial court agreed that the maximum sentence of incarceration that it would impose on the defendant would be two years. The defendant was informed during the canvass that if the sentence exceeded two years, he could withdraw the pleas. The defendant, however, was specifically informed that the sentence could include a suspended term of thirty years. Sentencing was postponed until the court received the presentence report and an alternative incarceration plan. On March 26, 1998, the defendant was sentenced to eight years of incarceration, execution suspended after two years, and was placed on probation with special conditions for a period of five years.³

On September 27, 1999, the defendant filed a motion seeking to vacate the judgments and to withdraw his pleas of nolo contendere. During a hearing on the motion, the defendant claimed that he should be permitted to withdraw his pleas and to plead anew because they were not made knowingly and intelligently. The trial court denied the motion, and the defendant appealed.

The defendant was released from custody on March 24, 2000, and his five year probation commenced. On March 27, 2000, the defendant reported to the office of adult probation and informed his probation officer that he would be residing in Massachusetts. The defendant was told that this would be a violation of his probation and that he could not leave the state until he received formal permission. The commonwealth of Massachusetts subsequently denied the defendant's request for an interstate compact transfer. On March 28, 2000, the defendant failed to report to a scheduled meeting with his probation officer and, on March 29, 2000, he failed to contact the office of adult probation, as was required. A warrant was issued for the defendant's arrest for violating the terms of his probation,⁴ and he was arrested on April 3, 2000. The defendant is currently incarcerated as a result of violating his probation. Additional facts will be provided as necessary.

I

The defendant claims that he should have been permitted to withdraw the nolo contendere pleas that he entered because they were involuntary, unknowing and unconstitutional because the sentence he received exceeded the terms of the plea agreement. It is the defendant's contention that the trial court violated the terms of the plea agreement when it sentenced the defendant to a period of probation in addition to the two years of incarceration. We disagree.

The following additional facts are needed for a resolution of this claim. On January 5, 1998, the defendant entered into plea bargain negotiations, through his counsel of record, whereby he agreed to enter pleas of nolo contendere. Before accepting the pleas, the trial court canvassed the defendant in accordance with Practice Book §§ 39-19 and 39-20.⁵ Additionally, the defendant informed the court that he was thirty-five years old and had completed sixteen years of schooling.

Before accepting the pleas, the following colloquy took place between the defendant and the court "The Court: And, I've discussed this matter with counsel again this morning, and at this particular point, I am limiting myself to an incarcerated portion of a sentence of up to two years. You understand that? Understand that?

"The Defendant: Yes.

"The Court: And, if after I receive the presentence report and an alternative incarceration plan, I come to the conclusion that you should go to jail for more than two years, then you will be allowed to withdraw your pleas, and go try the case, you understand that?

"The Defendant: Yes.

"The Court: But if after receiving those papers I come to the conclusion that that sentence or some sentence of less severity is in order, you won't be allowed to withdraw your pleas, you understand that?

"The Defendant: Yes.

"The Court: Now, a sentence could very well be something like thirty years suspended after two years or less, you understand that?

"The Defendant: Yes.

"The Court: Okay. Now, have you understood all the questions that I've asked you?

"The Defendant: Yes."

After concluding that the nolo contendere pleas were made voluntarily and intelligently, the court accepted the pleas and postponed sentencing until the office of adult probation completed the presentence investigation report and the alternative incarceration plan. Prior to being sentenced on March 26, 1998, the defendant's counsel stated that the defendant was prepared to submit to a period of probation if the court imposed the recommendation of the alternative incarceration plan. The court sentenced the defendant to eight years of incarceration, execution suspended after two years, and five years probation.⁶ After the sentencing hearing, the defendant signed a "conditions of probation" form.

On May 27, 1999, over fourteen months after being sentenced and signing the "conditions of probation" form, the defendant filed his first motion to vacate the judgments and requested permission to withdraw his pleas and to plead anew. A second motion was filed on September 27, 1999, also seeking to vacate the judgments and requesting permission to withdraw his pleas and to plead anew. The basis for both motions was thedefendant's claim that the sentence that he receivedwas not in accordance with the terms of the pleaagreement. The court heard the motions on October 13, 1999, and denied them on December 15, 1999.

"A ... plea, once accepted, may be withdrawn only with the permission of the court.... The court is required to permit the withdrawal of a guilty plea upon proof of any ground set forth in Practice Book § [39-27].... Whether such proof is made is a question for the court in its sound discretion, and a denial of permission to withdraw is reversible only if that discretion has been abused." (Internal quotation marks omitted.) State v. Gundel, 56 Conn. App. 805, 812, 746 A.2d 204, cert. denied, 253 Conn. 906, 753 A.2d 941 (2000). "The burden is always on the defendant to show a plausible reason for the withdrawal of a plea of guilty." (Internal quotation marks omitted.) State v. Andrews, 253 Conn. 497, 505-506, 752 A.2d 49 (2000). "It is axiomatic that the 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 [nolo contendere], 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." (Citations omitted; internal quotation marks omitted.) State v. Garvin, 242 Conn. 296, 309-10, 699 A.2d 921 (1997). "A ... plea cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.... An understanding of the law in relation to the facts must include all relevant information concerning the sentence." (Internal quotation marks omitted.) State v. Andrews, 53 Conn. App. 90, 96, 729 A.2d 232 (1999) aff d, 253 Conn. 497, 752 A.2d 49 (2000).

If the trial court does not accept the plea agreement made between the state and the defendant, it "shall inform the parties of this fact; advise the defendant personally in open court ... [and] afford the defendant the opportunity then to withdraw his plea .... Where the word shall is employed in criminal procedural rules, it...