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State v. White

Court of Appeals of Connecticut

June 19, 2018

STATE OF CONNECTICUT
v.
ANTUAN WHITE

          Argued December 6, 2017

         Procedural History

         Information, in the first case, charging the defendant with violation of probation, and information, in the second case, charging the defendant with two counts of the crime of possession of narcotics with intent to sell, and information, in the third case, charging the defendant with the crime of possession of narcotics with intent to sell, and informations, in the fourth and fifth cases, charging the defendant with the crime of interfering with an officer, brought to the Superior Court in the judicial district of New Haven, geographical area number twenty-three, where the defendant was presented to the court Alexander, J., on an admission of violation of probation and on pleas of guilty; judgments revoking the defendant's probation and of guilty in accordance with the pleas; subsequently, the court, Clifford, J., denied the defendant's motion to correct an illegal sentence, and the defendant appealed to this court. Affirmed.

          Temmy A. Miller, assigned counsel, with whom were Catherine Spain, assigned counsel, and, on the brief, Owen R. Firestone, assigned counsel, for the appellant (defendant).

          Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, John P. Doyle, Jr., senior assistant state's attorney, and Karen A. Roberg, assistant state's attorney, for the appellee (state).

          Prescott, Elgo and Beach, Js.

          OPINION

          BEACH, J.

         This case turns on the issue of the appropriate role of assigned counsel in the context of a motion to correct an illegal sentence following State v. Casiano, 282 Conn. 614, 922 A.2d 1065 (2007). The defendant, Antuan White, appeals from the judgment of the trial court denying his motion to correct an illegal sentence. The defendant claims that the trial court erred by (1) declining to appoint counsel to represent him on the merits; (2) denying his motion on the merits; and (3) deciding the merits of the motion to correct, despite having previously considered the merits of the issues during the hearing regarding the appointment of counsel. We disagree and affirm the judgments of the trial court.

         The following undisputed facts and procedural history are relevant to our resolution of the defendant's claims. They arise primarily from four separate proceedings: a plea hearing on November 22, 2005, arising out of five separate criminal dockets; a sentencing proceeding on December 13, 2006; a hearing on November 25, 2015, to determine whether counsel would be appointed to represent the defendant; and a hearing on the merits of the motion to correct, held on January 4, 2016.

         On November 22, 2005, the defendant appeared before the trial court, Alexander, J., and pleaded guilty to, inter alia, three counts of possession of narcotics with intent to sell in violation of General Statutes (Rev. to 2005) § 21a-277 (a). The defendant also admitted violating his probation in violation of General Statutes § 53a-32. The plea agreement was entered into pursuant to State v. Garvin, 242 Conn. 296, 699 A.2d 921 (1997).[1]An agreed upon sentence was stated on the record: the defendant was to be sentenced to twelve years of incarceration, suspended after seven years, and a three year period of conditional discharge. The defendant also agreed to the express condition that he appear for sentencing on January 13, 2006. The court advised the defendant that the guilty pleas were ‘‘permanent'' and that the plea agreement was ‘‘off'' if he didn't appear on January 13, and that his failure to appear would expose him to a sentence of up to fifty-three years. The defendant affirmed his understanding. The court found the defendant's pleas ‘‘to be voluntarily, knowingly made. There was a factual basis [for the pleas]. [The defendant] had the assistance of competent counsel. [His] pleas are accepted and a finding of guilty, finding of violation of probation is made.'' The court continued the matter to January 13, 2006, for sentencing.

         The defendant, however, did not appear for sentencing on January 13, 2006. He was rearrested approximately seven months later. On December 13, 2006, the defendant appeared for sentencing before Judge Alexander on the charges to which he had pleaded guilty on November 22, 2005.

         During the sentencing hearing, the state discussed a letter that the Department of Correction had intercepted. It was allegedly written by the defendant prior to sentencing. The letter directed its recipient to a location where drugs and money could be found. The prosecutor stated that the letter was written on approximately October 31, 2006, several days after the defendant's arraignment on his rearrest.

         At the sentencing, the court considered the defendant's ‘‘significant and serious criminal history, '' which led the court to conclude that the defendant was ‘‘not amenable . . . to any form of rehabilitation.'' The court then stated: ‘‘I understand the Garvin rule. I understand the nature of it. I am trying to adhere to what I believe the guidelines are in there. I know it would give the court the authority to impose a full maximum of fifty-three years. . . . [T]hat would be excessive. I recognize that. But I do recognize that this is an egregious case given the number of times [the defendant] has been convicted of the sale of narcotics, and his prior criminal history, and the circumstances that surrounded his being taken into custody for three failures to appear. As well as what is alleged to be continuing criminal conduct that [the Department of] Correction believed worthy to bring to the attention of the state police in his attempts to reach out into the community to continue his pattern of narcotics association.'' (Emphasis added.) The court then sentenced the defendant to a total effective sentence of fifteen years of incarceration, to be followed by five years of special parole.

         On July 21, 2014, the defendant, representing himself, filed a motion to correct an illegal sentence. He claimed that his sentence was unlawful because he had not been afforded the opportunity to withdraw his pleas after his failure to appear on January 13, 2006. The defendant also asked for the appointment of counsel pursuant to Casiano. Joseph Lopez, an attorney in the public defender's office, was appointed, on July 25, 2014, to represent the defendant for the purpose of the review mandated by Casiano.

         On November 25, 2015, a hearing was held before the trial court, Clifford, J., to determine whether a sound basis existed for the appointment of counsel to prosecute the merits of the defendant's motion to correct an illegal sentence. The court stated its understanding of the history of the case and invited Lopez to comment as to whether the defendant should be afforded a lawyer to represent him on his motion. Lopez said: ‘‘Under the Casiano case, when a public defender is appointed for the limited appearance, it is our rule to take a look at these, independently look at the claims to see if there is any sound basis. It's the one and only time that I'm aware of where I am not an advocate for my client, but really have to do an independent review first. So it is an unusual situation. I just want my client to understand . . . that that's what the court requires me to do.'' (Emphasis added.)

         Lopez then addressed the ground raised in the defendant's self-represented written motion to correct. He said that he did not think that the court had jurisdiction over the defendant's claim that his guilty pleas had been voided in their entirety by the defendant's failure to appear at the scheduled sentencing proceeding. The court surmised that perhaps the defendant misunderstood the import of Judge Alexander's telling the defendant during the plea hearing that if he did not appear for sentencing on January 13, ‘‘then your plea agreement is off''; the defendant may have interpreted the court's statement to mean that, if he did not appear for sentencing, he would ‘‘start ...


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