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State v. Monge

Appellate Court of Connecticut

April 26, 2016

STATE OF CONNECTICUT
v.
JAVIER R. MONGE

         Argued March 3, 2016

          Two substitute informations charging the defendant, in the first case, with the crimes of risk of injury to a child, breach of the peace in the second degree, assault in the third degree and disorderly conduct, and, in the second case, with the crimes of criminal violation of a protective order, breach of the peace in the second degree, criminal trespass in the first degree and disorderly conduct, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the defendant was presented to the court, Tindill, J., on pleas of guilty; thereafter, the court vacated the guilty pleas as to the charges of risk of injury to a child and criminal violation of a protective order; subsequently, the state entered a nolle prosequi as to the charges of risk of injury to a child and criminal violation of a protective order; judgments of guilty of assault in the third degree and criminal trespass in the first degree, and of two counts each of breach of the peace in the second degree and disorderly conduct; thereafter, the court, White, J., dismissed the defendant's motion to vacate the pleas, and the defendant appealed to this court; subsequently, the court, White, J., issued an articulation of its decision.

          SYLLABUS

         The defendant, who had been convicted in two cases, on pleas of guilty, of the crimes of assault in the third degree, criminal trespass in the first degree, breach of the peace in the second degree and disorderly conduct, appealed to this court from the judgment of the trial dismissing his postsentencing motion to vacate his guilty pleas and to open the judgments of conviction. In his motion, the defendant claimed that the pleas had been accepted without first determining that he fully understood the pleas. Specifically, the defendant, who is not a citizen of the United States, claimed that because federal immigration law had changed substantially after he entered his guilty pleas, thereby exposing him to the possibility of deportation as a result of those pleas, he should be allowed to reconstruct his sentence to accommodate the new regulations so as to avoid the risk of deportation.

         Held that the trial court properly dismissed the defendant's motion to vacate his guilty pleas and to open the judgments of conviction, that court having properly determined that it lacked jurisdiction to consider the merits of that motion: because the defendant's sentence had been executed, the trial court lacked jurisdiction to entertain any claims regarding the validity of the pleas in the absence of a statute or rule of practice to the contrary, the defendant did not identify any express authorization under which the trial court could have acted on his postsentencing motion to vacate his guilty pleas and to open the judgments of conviction, and although the defendant's motion to vacate was brought pursuant to the rule of practice (§ 39-27 [1]) that permits the withdrawal of a plea after it has been accepted but before the conclusion of the sentencing proceeding when the plea allegedly was not made in a knowing and voluntary manner, appellate courts of this state have consistently rejected postsentencing motions to vacate pleas predicated on that ground; moreover, the defendant's claim that his motion to vacate was actually a motion to correct an illegal sentence was unavailing, as the claim was not raised before the trial court in the motion itself or at the hearing thereon, and because the sentence had been executed and the claim pertained to alleged flaws in the trial court's acceptance of the pleas and did not attack the validity of the sentence, the trial court would have lacked jurisdiction to consider the motion.

         Glenn L. Formica, for the appellant (defendant).

         Jacob Pezzulo, certified legal intern, with whom were Harry Weller, senior assistant state's attorney, and, on the brief, David I. Cohen, former state's attorney, and Nancy Dolinsky, senior assistant state's attorney, for the appellee (state).

         Gruendel, Beach and Sheldon, Js.[*] GRUENDEL, J. In this opinion the other judges concurred.

          OPINION

          GRUENDEL, J.

          [165 Conn.App. 38] The defendant, Javier R. Monge, appeals from the judgments of the trial court dismissing his postsentencing motion to vacate his guilty pleas and to open the judgments of conviction. The dispositive issue is whether the court properly concluded that it lacked jurisdiction to consider the merits of that motion. We answer that query in the affirmative and, accordingly, affirm the judgment of the trial court.

         The following facts are relevant to this appeal. The defendant, who is not a citizen of the United States, was involved in two domestic altercations on June 16, 2013, and August 12, 2013. He thereafter was charged with various criminal offenses. Pursuant to a conditional plea agreement, the defendant, on November 12, 2013, pleaded guilty to risk of injury to a child in violation of General Statutes § 53-21, criminal violation of a protective order in violation of General Statutes § 53a-223, assault in the third degree in violation of General Statutes § 53a-61, criminal trespass in the first degree in violation of General Statutes § 53a-107, two counts of disorderly conduct in violation of General Statutes § 53a-182, and two counts of breach of the peace in the second degree in violation of General Statutes § 53a-181. In accordance with the terms of the plea agreement, the court at the plea hearing explained that if the defendant successfully completed (1) " the Evolve program," (2) an anger management program, and (3) substance abuse evaluation and treatment, and further cooperated with the Department of Children and Families through parenting classes and counseling without any further arrests, his pleas to the felony charges of risk of injury and criminal violation of a protective order would be [165 Conn.App. 39] vacated and he would receive a sentence of three years incarceration, execution suspended, with three years of probation on the remaining misdemeanor charges.

         The defendant subsequently complied with those requirements and the court, on November 4, 2014, vacated his guilty pleas with respect to the risk of injury and criminal violation of a protective order charges. At that time, the court imposed a total effective sentence of three years incarceration, execution suspended, with three years of probation on the remaining charges.

         More than one month after he was sentenced, the defendant moved to vacate his remaining guilty pleas and to open the judgments of conviction rendered by the court. On January 30, 2015, the defendant filed his " Amended Motion to Vacate Pleas and Reopen Pursuant to Connecticut Practice Book § § 39-19, 39-27 (1)." In that motion, the defendant argued " that the plea was accepted without first determining that [he] fully understood the plea." [1]

          [165 Conn.App. 40] The court held a hearing on the defendant's motion to vacate his pleas and to open the judgments of conviction on February 9, 2015. At that hearing, the defendant acknowledged that the state had complied with the terms of his conditional pleas. The defendant also did not dispute that the court properly advised him of the immigration consequences of his pleas during the November 12, 2013 plea hearing.[2] Rather, the defendant argued that federal immigration law " changed substantially" after he entered his guilty pleas, thereby exposing him to the possibility of deportation as a result of those pleas. The defendant's counsel contended that " had [the defendant] known of a new federal guideline for deportation, which went into effect roughly two weeks after he was sentenced . . . we could have easily and would have likely structured this sentence to accommodate those new regulations and he would not . . . risk deportation as he does now." The defendant's counsel thus requested that the court " reconstruct" the defendant's sentence, opining that " given the totality of the interest of justice in this case the court should certainly give it its strongest ...


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