April 22, 2019
informations charging the defendant with three counts each of
the crimes of operating a motor vehicle while under the
influence of intoxicating liquor as a first offender and
failure to appear in the second degree, with the crimes of
risk of injury to a child, criminal trespass in the first
degree, disorderly conduct, failure to appear in the first
degree, criminal violation of a protective order, violation
of the conditions of release in the second degree and illegal
operation of a motor vehicle while his driver's license
was suspended, and with the infraction of operating an
unregistered motor vehicle, brought to the Superior Court in
the judicial district of Hartford, geographical area number
fourteen, where the defendant was presented to the court,
Prats, J., on guilty pleas as to three
counts of operating a motor vehicle while under the influence
of intoxicating liquor as a first offender, two counts of
failure to appear in the second degree, and one count each of
risk of injury to a child and criminal trespass in the first
degree; thereafter, the court, Williams,
J., denied the defendant's motion to withdraw
and to vacate his guilty pleas, and rendered judgments of
guilty and sentenced the defendant in accordance with the
pleas; subsequently, the court, Williams,
J., vacated the conviction of risk of injury of a
child in accordance with the pleas; thereafter, the state
entered a nolle prosequi as to the remaining charges, and the
defendant appealed to this court. Affirmed.
Lynch, self-represented, the appellant (defendant).
Melissa L. Streeto, senior assistant state's attorney,
with whom, on the brief, were Gail P. Hardy, state's
attorney, and Michael Weber, senior assistant state's
attorney, for the appellee (the state).
Lavine, Keller and Elgo, Js.
self-represented defendant, Kevin Lynch, appeals from the
judgments of conviction rendered by the trial court following
the denial of his motion to withdraw his guilty pleas. On
appeal, the defendant claims that the court improperly (1)
failed to conduct an evidentiary hearing on his motion to
withdraw his guilty pleas, (2) denied his motion to withdraw
his guilty pleas, and (3) failed to conduct an evidentiary
hearing prior to terminating his participation in the
pretrial alcohol education program (program). We affirm the
judgments of the trial court.
record reveals the following relevant facts and procedural
history. On October 7, 2016, pursuant to a global plea
agreement that encompassed all of the defendant's cases
and was reached in accordance with State v.
Garvin, 242 Conn. 296, 699 A.2d 921 (1997),
defendant entered guilty pleas to three counts of operating a
motor vehicle while under the influence of intoxicating
liquor as a first offender in violation of General Statutes
§ 14-227a, two counts of failure to appear in the second
degree in violation of General Statues § 53a-173, and to
one count each of risk of injury to a child in violation of
General Statutes § 53-21, and criminal trespass in the
first degree in violation of General Statutes § 53a-107.
In accordance with the Garvin agreement, the court,
Prats, J., agreed to sentence the defendant to a
total effective sentence of four years of incarceration,
execution suspended, with three years of probation. Pursuant
to that agreement, the defendant's conviction of risk of
injury to a child would be vacated. The court, however, also
advised the defendant that he remained subject to a possible
sentence of up to fourteen and one-half years of
incarceration if he violated the terms of the Garvin
agreement by failing to comply with an inpatient alcohol
treatment program, by being arrested with probable cause on
any new charges prior to his sentencing, or by failing to
appear at the sentencing hearing.
sentencing hearing was held on February 15, 2018. At that
time, the state indicated that the defendant had complied
with the conditions of the Garvin agreement and,
therefore, the state was prepared to enter a nolle prosequi
as to the defendant's conviction of risk of injury to a
child, once the court vacated that conviction. The court,
Williams, J., then asked the clerk to verify before
they proceeded that the program in one of the defendant's
cases was previously terminated.The clerk responded that he
had no record of that in the court's file. In response,
the state argued that the ‘‘agreed disposition
and the fact that the plea was entered . . . more than
implies the fact that [the program] was supposed to be
terminated . . . .''
counsel responded that he believed that a notice of
successful completion of the program was filed with the court
by the bail commissioner. He also stated that the program had
not been terminated and that ‘‘there is a valid
argument to be made in that file that the [successful
completion of the program] should be acknowledged by the
court . . . [a]nd that matter should be dismissed . . .
.'' The court then asked defense counsel if this
issue was raised at the time of the Garvin plea.
Defense counsel answered: ‘‘No, it was not
[raised], because in all candor to this court, I did not
comprehend the procedural history of [the defendant's]
several cases . . . . At that point in time, my primary focus
was to persuade the court . . . to allow for inpatient
treatment for [the defendant].''
counsel went on to explain: ‘‘But, I also
didn't understand at that time . . . that [the defendant]
was under [the influence of] about four psychotropic
medications administered by the Department of Correction. And
what I also didn't take up with the court or with the
state is the history of this particular file and the fact
that the [program] had been granted by the court. I believe
Judge Suarez had granted the [program] with full knowledge
with the preexisting matter then still at GA 10 in New
London. Also, there was a family violence education program
granted in this courthouse at about the same time in a
different but companion matter. And there was . . . in that
case a successful completion of the family violence education
program, as well. And only since long after October 6 have I
become aware and better understood the procedural history
here. And then, while . . . I have learned only in the past
week that there . . . was an absolute defense to the New
London failure to appear, to which he [pleaded] guilty on
October 7, 2016, which I had no understanding about it at
all. And . . . there is a substantial defense to [the failure
to appear charge], Your Honor. So . . . the combination of
those . . . factored in the new information, is why I would
respectfully pray the court to allow me to fulfill my
obligations to [the defendant] . . . by allowing me three or
four days to file motions and a brief on this issue of [the
program]. The last case of the operating under the influence
occurred after the one year dismissal date of the [program],
as I recall, Your Honor. And the [program] had not been
dismissed on the scheduled date only because . . .
documentation from [Connecticut Valley Hospital] had not been
received by the bail commissioner. So what I'm saying in
good faith, to the court and to the state, is that there isa
substantial amount of information that I respectfully suggest
calls into question the validity of the pleas, to the
failures to appear, as well as the plea to the file that
we've just confirmed the [program] had not been
terminated in, at the time of the plea.''
court responded by asking defense counsel if he wanted the
court to not honor the plea agreement. The court also pointed
out that the plea agreement was entered in 2016, that it
involved matters dating back to 2014, and that the court had
granted multiple continuances in this matter. While defense
counsel and the defendant conferred, the court stated that
the clerk had discovered that ‘‘on [program]
progress reports . . . the defendant, apparently, did not
complete the fifteen sessions for which he was referred.
However, he completed detox and residential
the following colloquy occurred:
Counsel]: I would ask Your Honor for simply four days to
Court: Well, that's denied. . . . I said back in January
that today was the day for sentencing. I made that clear. On
January 11, I made that abundantly clear. This is it. This is
the sentencing day. And now I'm hearing an oral motion
to, I guess, delay sentencing. I'm hearing an oral motion
to not honor the plea agreement, after a full canvass based
on information that's being brought to the court's
attention for the first time. So are you asking the
court-first of all, on the [program], your position is that
case should be dismissed despite the clear plea agreement
with Judge Prats?
Court: That's your motion?
Counsel]: Yes, Your Honor.
Court: And separately, you're asking the court not to
honor the Judge Prats plea agreement of the fully suspended
sentence and the vacating of the risk of injury?
Counsel]: Well, what I'm asking, Your Honor, is the
opportunity to provide the court, and specifically the state,
with documentation regarding the failures to appear.
Court: That you don't have today on what's the known
sentencing date on a case where the pleas were entered [in]
October, 2016. That request is denied.
Counsel]: Yes, Your Honor.
Court: Anything further from defense at this point?
Counsel]: May the defendant withdraw his . . . pleas from
Court: Based on what?
Counsel]: Based on the fact that, Your Honor, he was under
[the influence of] four psy-chotropic medications from [the
Department of Correction], based upon the fact that the
canvass by Judge Prats did not specify the penalties that
would attach to three convictions of operating under the
Court: Such as what?
Counsel]: A lifetime revocation and, ah-
Court: Are you saying that's part of-it's something
that I normally point out. But, where's your legal
support for that argument?
Counsel]: From the Practice Book, Your Honor, for the ...