November 30, 2017
charging the defendant with the crime of conspiracy to commit
larceny in the sixth degree, brought to the Superior Court in
the judicial district of New Britain, geographical area
number seventeen, where the defendant was presented to the
court, Johnson, J., on a plea of guilty; judgment of
guilty; thereafter, the court, Dyer, J., denied the
defendant's motion to vacate the judgment and withdraw
his plea, and the defendant appealed to this court.
Reversed; further proceedings.
K. Garg, for the appellant (defendant).
F. Currie-Zeffiro, assistant state's attorney, with whom,
on the brief, were Brian Preleski, state's attorney, and
Paul Rotiroti, senior assistant state's attorney, for the
Sheldon, Elgo and Mihalakos, Js.
defendant, Evandro M. Lima, appeals from the judgment of the
trial court denying his motion to vacate his conviction
following his guilty plea to one count of conspiracy to
commit larceny in the sixth degree in violation of General
Statutes §§ 53a-48 and 53a-125b. The defendant
claims that the trial court abused its discretion in denying
his motion because, under General Statutes § 54-1j,
court was required but failed to ask the defendant whether he
understood the possible immigration consequences of pleading
guilty before accepting his plea. We agree with the defendant
and reverse the judgment of the trial court.
following procedural history is relevant to our resolution of
this appeal. On August 1, 2014, the defendant entered a plea
of guilty under the Alford doctrineto conspiracy to
commit larceny in the sixth degree after he conspired with
another individual to commit a shoplifting at Price Chopper
in Southington. During the plea canvass, the court asked the
defendant several questions, including whether he was under
the influence of alcohol, drugs or any other medication. The
defendant answered in the negative. The court also asked the
defendant whether he had had enough time to discuss his case
with his attorney and was satisfied with his attorney's
advice; whether his attorney had reviewed with him all of the
evidence that the state claimed that it had to prove his
guilt; and whether his attorney had informed him of the
maximum possible penalty he was facing in the event of
conviction. The court also asked the defendant if he knew
that by pleading guilty, he was giving up his right to have a
trial, to require the state to prove his guilt beyond a
reasonable doubt, to confront and cross-examine witnesses and
to present his own witnesses and his own testimony. The
defendant responded in the affirmative to all of the
court's inquiries. The court then told the defendant:
‘‘If you are not a U.S. citizen, this conviction
may result in your removal from the United States or
deportation under federal law.'' The court followed
that admonition with the question: ‘‘Has anyone
forced or threatened you to enter your plea today?''
The defendant responded in the negative and affirmed that he
was entering his plea of his own free will. The court asked
the defendant: ‘‘[I]s there any reason why I
shouldn't accept your plea?'' The defendant
responded: ‘‘Not at all.'' The court
found that the plea was ‘‘knowingly and
voluntarily made with the assistance of competent counsel,
'' and thus ordered that it be accepted.
on August 11, 2015, pursuant to § 54-1j (a) and (c), the
defendant filed a motion to vacate his conviction and
withdraw his guilty plea, claiming that the trial court
improperly failed to determine whether he understood the
immigration consequences of his guilty plea and that he had
discussed the possible immigration consequences of the plea
with his attorney before entering it. The trial court denied
the defendant's motion, concluding: ‘‘By
advising the defendant in this case that his conviction for
conspiracy to commit larceny could result in his removal or
deportation from the United States under federal law, the
trial court adequately and substantially warned the defendant
that his immigration status could be adversely affected as a
consequence of his decision to plead guilty. Although the
trial court did not specifically inquire of the defendant if
he understood the potential immigration consequences, the
transcript reflects that the trial court did personally
address the defendant, and that the defendant was satisfied
with his counsel's representation. Specifically, the
defendant told the court that he was ‘absolutely'
satisfied with the representation that he received from his
public defender. Additionally, subsequent to advising the
defendant that his plea could result in his deportation or
removal from the United States, the court asked the defendant
if there was any reason why his plea should not be accepted.
The defendant responded: ‘[N]ot at all.' Viewed in
its entirety, the transcript indicates that the defendant
understood the trial court's questions and remarks during
the plea canvass. The court found the defendant's plea
was knowingly and voluntarily made with the assistance of
competent counsel. Implicit in that finding by the trial
court is a determination that the defendant understood the
court's warning about the possible immigration
consequences of his guilty plea.'' The court then
concluded that: ‘‘Based on the foregoing, the
undersigned finds that the trial court substantially complied
with the provisions of . . . § 54-1j when the defendant
pleaded guilty and was sentenced on August 1, 2014.''
appeal, the defendant claims that the court erred in denying
his motion to vacate the judgment on his guilty plea because
the court failed to determine that he understood the possible
immigration consequences of his guilty plea as required under
§ 54-1j (a). We agree.
guilty] plea, once accepted, may be withdrawn only with the
permission of the court. . . . The burden is always on the
defendant to show a plausible reason for the withdrawal of a
plea of guilty. . . . 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;
footnote omitted; internal quotation marks omitted.)
State v. Hall, 303 Conn. 527, 532-33, 35
A.3d 237 (2012).
54-1j (a) provides that the court shall not accept a guilty
plea without first addressing the defendant personally to
ensure that he fully understands that, if he is not a United
States citizen, his conviction may have certain enumerated
immigration consequences under federal law, and, further, if
the defendant has not discussed these possible consequences
with his attorney, the court shall permit him to do so before
accepting his plea offer. Section 54-1j (c) provides that, if
the court fails to comply with the requirements of subsection
(a), and the defendant can demonstrate that his conviction
may have one of the enumerated immigration consequences, the
court, upon motion of the defendant within three years of the
plea, shall vacate the judgment and permit the defendant to
withdraw his guilty plea and enter a plea of not guilty.
by its terms, [§] 54-1j (a) permits a court to accept a
defendant's plea only if the court conducts a plea
canvass during which . . . the court determines that the
defendant understands fully the possible immigration
consequences that may result from entering a plea . . .
.'' (Internal quotation marks omitted.) State v.
Lima, 325 Conn. 623, 629, 159 A.3d 651 (2017).
‘‘[I]t [is] not necessary for the trial court to
read the statute verbatim . . . [and, instead] only
substantial compliance with the statute is ...