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State v. Anthony D.

Supreme Court of Connecticut

April 19, 2016

STATE OF CONNECTICUT
v.
ANTHONY D., SR. [*]

         Argued January 22, 2016.

          Substitute information charging the defendant with two counts each of the crimes of sexual assault in the first degree and sexual assault in the second degree, and with the crimes of sexual assault in the fourth degree and risk of injury to a child, brought to the Superior Court in the judicial district of Hartford, where the defendant was presented to the court, Alexander, J., on a plea of guilty to one count of sexual assault in the first degree; judgment of guilty; thereafter, the state entered a nolle prosequi as to one count of sexual assault in the first degree, and as to the charges of sexual assault in the second degree, sexual assault in the fourth degree and risk of injury to a child; subsequently, the court denied the defendant's motion to withdraw the plea, and the defendant appealed to the Appellate Court, Beach, Bear and Mintz, Js., which affirmed the judgment of the trial court, and the defendant, on the granting of certification, appealed to this court.

          SYLLABUS

         Convicted, on a plea of guilty, of the crime of sexual assault in the first degree, the defendant appealed to the Appellate Court, claiming, inter alia, that the trial court improperly denied his motion to withdraw his plea without inquiring further as to his underlying claim of ineffective assistance of counsel. In the oral motion made at sentencing, defense counsel indicated to the trial court that the defendant had expressed concerns regarding the manner in which he was represented, but did not cite any specific facts or present any evidence regarding how or why counsel's representation was allegedly ineffective. The trial court thoroughly canvassed the defendant at the change of plea hearing and presented the defendant with numerous opportunities to voice any concerns he may have had with his counsel's representation or to inform the court that the sentence he was receiving was inconsistent with his plea agreement. The Appellate Court concluded that, because the defendant presented no factual basis for further inquiry by the trial court, the inquiry conducted by that court following the defendant's motion was sufficient and, accordingly, affirmed the judgment of the trial court. From that judgment, the defendant, on the granting of certification, appealed to this court. Held that the Appellate Court properly concluded that the trial court, without specific concerns or facts before it to justify the withdrawal of the defendant's plea at sentencing, did not abuse its discretion in denying the defendant's motion to withdraw his guilty plea: after the acceptance of a plea but before sentencing, a defendant bears the burden of presenting facts sufficient to persuade the trial court that his guilty plea should be withdrawn under the applicable rule of practice (§ 39-26), and trial courts are not affirmatively required to conduct an inquiry into the factual basis of a defendant's motion to withdraw his plea where, as here, the defendant was afforded a reasonable opportunity to satisfy his burden of presenting a factual basis in support of his motion.

         Alan Jay Black, for the appellant (defendant).

         Kathryn W. Bare, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Robin D. Krawczyk, senior assistant state's attorney, for the appellee (state).

         Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js. EVELEIGH, J. In this opinion PALMER, ZARELLA and ESPINOSA, Js., concurred. ROGERS, C. J., with whom McDONALD and ROBINSON, Js., join, dissenting.

          OPINION

          [320 Conn. 843] EVELEIGH, J.

          The sole issue in this certified appeal[1] is whether, under the facts of the present case, the trial [320 Conn. 844] court properly denied the oral motion of the defendant, Anthony D., Sr., to withdraw his guilty plea due to ineffective assistance of counsel without conducting a further inquiry into the underlying basis of his motion. The defendant appeals from the judgment of the Appellate Court affirming the trial court's judgment of conviction of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), rendered following the trial court's denial of his motion to withdraw his Alford plea.[2] See State v. Anthony D., 151 Conn.App. 109, 110-11, 94 A.3d 669 (2014). On appeal, the defendant claims that the Appellate Court improperly concluded that the trial court had conducted a sufficient inquiry concerning the defendant's motion to withdraw. We conclude that the Appellate Court properly determined that the defendant was not entitled to a further inquiry into the basis of his motion to withdraw his guilty plea under the facts of the present case and, accordingly, we affirm the judgment of the Appellate Court.

         The opinion of the Appellate Court sets forth the following undisputed facts and procedural history. " The defendant was arrested and charged with several crimes related to his sexual abuse of his girlfriend's child, with whom he had lived since the child was five years old. On December 5, 2011, the evidentiary portion of the defendant's trial commenced, and, on that day, the state presented six witnesses, including the then fifteen year old victim, who testified extensively about the defendant's sexual abuse, which began when she was six [320 Conn. 845] years old. On December 6, 2011, the court conducted a hearing on the defendant's motion to suppress his confession to the police, in which he had admitted to sexually abusing the victim. Following the court's denial of that motion, the defendant entered a guilty plea under the Alford doctrine to one count of sexual assault in the first degree . . . and the state agreed to enter a nolle prosequi for each of the remaining criminal charges. The parties agreed to a sentence of ten years incarceration, with a five year mandatory minimum, followed by ten years of special parole." (Footnote omitted.) Id., 111.

         " Before accepting the defendant's plea, the [trial] court . . . conducted a canvass of the defendant in which it asked the defendant if he understood the plea agreement, if he had discussed his plea with his attorney, if he understood the nature of an Alford plea and agreed that there was a likelihood of being found guilty if he went to trial, if he agreed that he likely would get a greater sentence if he proceeded to complete his trial, if he was pleading guilty to avoid the risk of trial, and if he understood that he was giving up his right to have the state prove the charges against him, to confront witnesses and to testify on his own behalf. The defendant answered yes to each of these questions. Additionally, the defendant acknowledged that he was not threatened or forced to enter his plea, that no one had made any promises to him other than the plea agreement, and that he was acting of his own free will.

         " When the court explained the charge of first degree sexual assault to the defendant, he stated that he understood the charge but that he did not agree. The court again explained the Alford plea and again asked the defendant if he understood and still agreed that there was a likelihood that he would get a longer sentence if convicted after trial. The defendant said yes. The court then explained the sex offender registration and [320 Conn. 846] treatment requirements to the defendant, and he acknowledged that he understood them. The court proceeded to ask the defendant if he knew that he would be subject to random searches, polygraph examinations and electronic monitoring; the defendant offered an inaudible response, and the court asked him if he had any questions for his attorney. The defendant responded by saying that 'nothing that I ask is gonna change anything.' The court then stated that it understood the defendant's point, but wanted to know if the defendant had any questions that he wanted to ask his attorney about what was occurring or about anything of a legal nature. The defendant said no. The court proceeded to accept the plea and to explain to the defendant that the agreement was binding and that the defendant could not come back and change his mind.

         " On December 16, 2011, the defendant returned to the [trial] court for his sentencing hearing . . . . At the start of the hearing, the following colloquy took place:

         " '[Defense Counsel]: . . . I'm sorry, before we begin, I understand that we are here for sentencing. I've met with [the defendant]. He is expressing to me concerns over the manner in which he was represented and is asking that he be permitted to withdraw his plea.

         " 'The Court: Okay.

         " '[Defense Counsel]: Under those circumstances, it would be my application to the court on his behalf that new counsel be appointed to investigate his claim.

         " 'The Court: With respect to it, the court does not believe that there is any factual basis for it. This was the court that took the plea. This was done in the middle of evidence. [If the defendant] want[s] to claim at a time after that this was ineffective [assistance] or somehow coerc[ive] [he] can have a habeas proceeding. But, [defense counsel], as an officer of the court, do you [320 Conn. 847] know of any defect in that plea canvass that would allow the court to, in fact, take back the plea at this time?

         " '[Defense Counsel]: Your Honor, I think that I need to be precise in my language. The canvass itself I think was quite thorough.

         " 'The Court: Right. I mean, we went back and forth. And my recollection was that I repeatedly advised him that this was a permanent agreement and that it could not be changed . . . .

         " '[U]nless you can point out some defect, I am not inclined to have him withdraw his plea, nor am I inclined for purposes of an agreed sentencing to delay the sentencing, given the fact that the complainants are here. And . . . there was even the agreement, I believe, of the waiver of the [presentence investigation report] at the time. And the court wanted some record for probation; otherwise, the sentence would have been imposed on the date of the plea.

         " 'So . . . while there may be reasons postjudgment for a different counsel, at this time, I am not going to grant your motion to withdraw because there is no prejudice. This is an agreed sentence. So, unless the court were going to give more and [defense counsel] had to persuade me to give less to maintain the agreement, there is no reason that [defense counsel] is not standing next to you today for an agreed disposition. . . . All right. The withdrawal--and I'll just take it as an oral motion, is denied.'

         " The court then heard a statement from the victim's mother, and the state read a letter written by the victim, both of which explained how the defendant's actions had impacted their lives. Near the end of the hearing, before imposing [the agreed upon] sentence, the court asked the defendant if he wanted to say anything, to which the defendant responded, 'No.'" Id., 114-17.

          [320 Conn. 848] The defendant appealed from the judgment of the trial court to the Appellate Court, claiming that the trial court improperly denied his " timely oral motion to withdraw his plea without any type of inquiry or evidentiary hearing as to the underlying basis of [his] motion." State v. Anthony D., supra, 151 Conn.App. 112. The Appellate Court concluded that " the defendant presented no basis for further inquiry by the court" and that, therefore, on the basis of the facts of the present case, " the inquiry conducted by the court was sufficient." Id., 119. This certified appeal followed. See footnote 1 of this opinion.

         On appeal to this court, the defendant claims that the trial court's failure to conduct a further inquiry into the factual basis of his motion to withdraw his guilty plea[3] violated his constitutional rights to the effective assistance of counsel and to due process of law as protected by the sixth and fourteenth amendments to the United States constitution[4] and his rights under Practice Book § § 39-26 and 39-27.[5] Specifically, the [320 Conn. 849] defendant claims that the Appellate Court improperly concluded that " the inquiry conducted by the court following the defendant's oral motion to withdraw his plea was sufficient under the circumstances of this case." [6] Id., 112. The defendant requests that we reverse the judgment of the Appellate Court affirming the trial court's judgment of conviction and that we order the trial court to either permit the defendant to withdraw his guilty plea or to conduct an evidentiary hearing on his motion to withdraw his guilty plea. In response, the state contends that the Appellate Court properly affirmed the trial court's denial of the defendant's motion to withdraw his guilty plea without first conducting a further inquiry or holding an evidentiary hearing on the defendant's motion. Specifically, the state contends that the defendant failed to state a specific basis for his motion and that the trial court properly disregarded defense counsel's vague statement that the defendant had " concerns" relating to his legal representation. [320 Conn. 850] We agree with the state and, accordingly, affirm the judgment of the Appellate Court.

         As a preliminary matter, we set forth the applicable standard of review. It is well established that " [t]he 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. Hall, 303 Conn. 527, 533, 35 A.3d 237 (2012). " To warrant consideration, the defendant must allege and provide facts which justify permitting him to withdraw his plea under [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." (Citation omitted; internal quotation marks omitted.) State v. Carmelo T., 110 Conn.App. 543, 549, 955 A.2d 687, cert. denied, 289 Conn. 950, 960 A.2d 1037 (2008). " In determining whether the trial court [has] abused its discretion, this court must make every reasonable presumption in favor of [the correctness of] its action. . . . Our review of a trial court's exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did." (Internal quotation marks omitted.) State v. Lameirao, 135 Conn.App. 302, 320, 42 A.3d 414, cert. denied, 305 Conn. 915, 46 A.3d 171 (2012).

          Motions to withdraw guilty pleas are governed by Practice Book § § 39-26 and 39-27. Practice Book § 39-26 provides in relevant part: " A defendant may withdraw his . . . plea of guilty . . . as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his . . . plea upon proof of one of the grounds in [Practice Book § ] 39-27 . . . ." (Emphasis added.) Practice Book § 39-27 (4) provides, in turn, that a defendant may withdraw his guilty plea after acceptance if " [t]he plea resulted from the denial of effective assistance of counsel. . . ." " The standard for withdrawing a guilty plea is stringent because society has a strong interest in the finality of guilty pleas, and allowing withdrawal of pleas not only undermines confidence in the integrity of our judicial procedures, but also increases the volume of judicial work, and delays and impairs the orderly administration of justice." (Internal quotation marks omitted.) United States v. Doe, 537 F.3d 204, 211 (2d Cir. 2008).

         We first note that the plain language of Practice Book § 39-26 expressly imposes limitations upon a defendant's ability to withdraw his guilty plea after it has been accepted. Although a defendant may withdraw his guilty plea " as a matter of right until the plea has been accepted," after a guilty plea is accepted, the defendant's right to withdraw his plea is restricted to a narrow window of time. Practice Book § 39-26. After acceptance, but before the imposition of sentence, the trial court is required to permit a defendant to withdraw his guilty plea under Practice Book § 39-26 only " upon proof of one of the grounds in [Practice Book § ] 39-27." Once a defendant has been sentenced, he no longer maintains a right to withdraw his guilty plea. Practice Book § 39-26. Furthermore, we emphasize that Practice Book § 39-26 requires the trial court to grant the defendant's motion to withdraw his guilty plea only " upon proof " of one of the grounds in ...


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