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State v. Barriga

Court of Appeals of Connecticut

May 24, 2016

STATE OF CONNECTICUT
v.
RICARDO BARRIGA

          Submitted on briefs February 29, 2016

         Appeal from Superior Court, judicial district of Stamford-Norwalk, geographical area number one, Hon. Martin L. Nigro, judge trial referee.

          Ricardo Barriga, self-represented, the appellant (defendant), filed a brief.

          David I. Cohen, state’s attorney, Mitchell Rubin, senior assistant state’s attorney, and Emily Graner Sexton, special deputy assistant state’s attorney, filed a brief for the appellee (state).

          DiPentima, C. J., and Beach and Flynn, Js.

          OPINION

          FLYNN, J.

         Practice Book § 60-2 provides, in pertinent part: ‘‘The supervision and control of the proceedings on appeal shall be in the court having appellate jurisdiction from the time the appeal is filed, or earlier . . . .’’ The rule goes on to provide that the court ‘‘may also, for example . . . (5) order that a party for good cause shown may file a late appeal . . . .’’[1] Practice Book § 60-2. On February 4, 2015, the defendant, Ricardo Barriga, a citizen of Peru, filed an appeal from his conviction after guilty pleas to two counts of possession of marijuana in violation of General Statutes § 21a-279 (c).[2] The judgments of his conviction entered on January 28, 2005, over ten years prior to his appeal from it on February 4, 2015. The defendant claims that in August, 2013, he was ordered deported due to his prior conviction. The defendant requests this court to accept his late appeal using its supervisory authority pursuant to Practice Book § 60-2 (5) and to treat the appeal as though he had filed a request to file an untimely appeal. We dismiss the appeal.

         Before accepting the defendant’s guilty pleas, the trial court informed him of the elements of the charged offenses, what the state would be required to prove, and what trial rights he was forfeiting by pleading guilty. The defendant was represented by counsel at the plea and sentencing, at which the court accepted the guilty pleas and sentenced him to two years of incarceration, execution suspended, and two years of probation. It is undisputed by the state that the sentencing court did not advise the defendant of any possible immigration law consequences prior to his making his pleas. The defendant did not precede the filing of his appeal with a request to file a late appeal, nor did he ever timely move to withdraw his pleas before the trial court.

         In addition to requesting this court to accept his late appeal using its supervisory authority pursuant to § 60-2 (5), the defendant also calls on this court to extend the three year statutory limitation on vacating guilty or nolo contendere pleas in General Statutes § 54-1j, and to determine that that limitation is unconstitutional. The state makes two arguments in opposition. It contends that § 54-1j is not unconstitutional, and that this court cannot extend the three year time limitation for vacating a guilty plea.

         Section § 54-1j (a) requires that ‘‘[t]he [trial] court shall not accept a plea of guilty or nolo contendere from any defendant in any criminal proceeding unless the court first addresses the defendant personally and determines that the defendant fully understands that if the defendant is not a citizen of the United States, conviction of the offense for which the defendant has been charged may have the consequences of deportation or removal from the United States, exclusion from readmission to the United States or denial of naturalization, pursuant to the laws of the United States.’’ However, in adopting § 54-1j, the legislature included subsection (c), which provides that if the court does not advise the defendant of one of the enumerated consequences and ‘‘the defendant not later than three years after the acceptance of the plea shows that the defendant’s plea and conviction may have one of the enumerated consequences, the court, on the defendant’s motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty.’’ The defendant contends on appeal that this court should extend the provisionsof§ 54-1j (c) beyond the three year limitation period and hold the statute unconstitutional because it ultimately does not ensure protection from the infringement of a resident alien’s liberty rights.

         We first address the defendant’s contention that the three year limit is ‘‘stale’’ and ‘‘no longer serves the ends of justice’’ in contemporary times and that the three year limitation should be extended by this court. Although our courts have the power and duty to interpret and apply laws enacted by the General Assembly, they do not have the power to repeal or amend them. That power is vested in elected members of the legislature and not in the courts. Article third, § 1, of the Connecticut constitution provides: ‘‘The legislative power of the state shall be vested in two distinct houses or branches; the one to be styled the senate, the other the house of representatives, and both together the general assembly.’’ ‘‘Whatever . . . [the constitution] prescribes, the General Assembly, and every officer or citizen to whom the mandate is addressed, must do; and whatever it prohibits, the General Assembly, and every officer and citizen, must refrain from doing; and if either attempt to do that which is prescribed, in any other manner than that prescribed, or to do in any manner that which is prohibited, their action is repugnant to that supreme and paramount law, and invalid.’’ (Internal quotation marks omitted.) Caldwell v. Meskill, 164 Conn. 299, 314–15, 320 A.2d 788 (1973), quoting Opinion of the Judges, 30 Conn. 591, 593–94 (1862).

         Furthermore, there is an obvious rationale behind the three year limitation, within which § 54-1j provides that the court may vacate a judgment of guilty and permit a defendant to withdraw his plea and enter a plea of not guilty. As we observed in State v. Alegrand, 130 Conn.App. 652, 665, 23 A.3d 1250 (2011), ‘‘[t]here is a public interest in maintaining some finality to judgments. Prosecutions cannot easily be recommenced when arresting officers no longer are available, witnesses are dead or cannot be found and physical evidence of crime has been destroyed. Public trust and confidence in the judiciary is sapped when cases are allowed to linger endlessly for years or decades in trial or appellate tribunals.’’

         We next address the defendant’s unconstitutionality claim. Although the defendant makes the bare statement that the time limitation of three years found in § 54-1j (c) is unconstitutional, he provides us with no analysis of how he claims it is violative of the fifth and fourteenth amendments to the United States constitution or article seventeen of the constitution of Connecticut, as amended by article twenty-nine of the amendments, [3] to permit this court to adjudicate whether the statute is facially unconstitutional. Furthermore, there is no factual record beyond the undisputed fact that the statutorily required immigration consequence advisory was not made by the sentencing court. As the state points out, there is no evidence of the deportation order or the reasons for it or for any other claimed collateral consequence of his pleas to permit review of how the three year limitation is unconstitutional as applied to him. We cannot speculate on what facts might underlie the defendant’s bare claims, and, therefore, we conclude that his unconstitutionality claim is unreviewable.

         We next address whether this court should accept an appeal of the defendant’s conviction filed more than ten years after he was convicted, pursuant to our supervisory powers under Practice Book § 60-2. Having carefully considered the ...


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