******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. ANTHONY D., SR.*
(AC 35553)
Beach, Bear and Mintz, Js.*
Argued April 8—officially released June 17, 2014
(Appeal from Superior Court, judicial district of
Hartford, Alexander, J.)
Alan Jay Black, assigned counsel, for the appellant
(defendant).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and Robin D. Krawczyk, senior assistant state’s
attorney, for the appellee (state).
Opinion
BEAR, J. The defendant, Anthony D., Sr., appeals
from the judgment of conviction, rendered following
the trial court’s acceptance of his Alford plea,1 of sexual
assault in the first degree in violation of General Stat-
utes § 53a-70 (a) (1). The defendant claims that he was
denied his federal and state constitutional rights to due
process of law and to the adequate assistance of counsel
when the trial court denied his motion to withdraw his
guilty plea without proper inquiry or an evidentiary
hearing. He requests that we reverse the judgment of
the trial court and order the court to permit him to
withdraw his plea or that we order the court to conduct
an evidentiary hearing on his motion to withdraw his
plea. We affirm the judgment of the trial court.
The defendant was arrested and charged with several
crimes related to his sexual abuse of his girlfriend’s
child, with whom he had lived since the child was five
years old.2 On December 5, 2011, the evidentiary portion
of the defendant’s trial commenced, and, on that day,
the state presented six witnesses, including the then
fifteen year old victim, who testified extensively about
the defendant’s sexual abuse, which began when she
was six years old. On December 6, 2011, the court con-
ducted a hearing on the defendant’s motion to suppress
his confession to the police, in which he had admitted
to sexually abusing the victim. Following the court’s
denial of that motion, the defendant entered a guilty
plea under the Alford doctrine to one count of sexual
assault in the first degree, which the court accepted,
and the state agreed to enter a nolle prosequi for each
of the remaining criminal charges. The parties agreed
to a sentence of ten years incarceration, with a five
year mandatory minimum, followed by ten years of
special parole. On the morning of sentencing, the defen-
dant, through counsel, made an oral motion to withdraw
his plea and to appoint new counsel, asserting that the
defendant was not satisfied with counsel’s representa-
tion. The court denied that motion and sentenced the
defendant to the agreed upon term. This appeal
followed.
On appeal, the defendant specifically claims that
‘‘[t]here was error under the Due Process Clause of
both the Fourteenth Amendment to the United States
Constitution, the right to counsel under the Sixth
Amendment to the United States Constitution and for
both clauses under Article One, Section Eight of the
Connecticut State Constitution3 and under Connecticut
General Practice Book, Sections 39-26 and 27 when
the judge denied the defendant’s timely oral motion
to withdraw his plea without any type of inquiry or
evidentiary hearing as to the underlying basis of the
defendant’s motion.’’ We conclude that the inquiry con-
ducted by the court following the defendant’s oral
motion to withdraw his plea was sufficient under the
circumstances of this case.4
‘‘Before a guilty plea is accepted a defendant may
withdraw it as a matter of right. Practice Book . . .
§ 720 [now § 39-26].5 After a guilty plea is accepted but
before the imposition of sentence the court is obligated
to permit withdrawal upon proof of one of the grounds
in [Practice Book] § 721 [now § 39-27].6 An evidentiary
hearing is not required if the record of the plea proceed-
ing and other information in the court file conclusively
establishes that the motion is without merit. . . .
‘‘In considering whether to hold an evidentiary hear-
ing on a motion to withdraw a guilty plea the court may
disregard any allegations of fact, whether contained in
the motion or made in an offer of proof, which are
either conclusory, vague or oblique. For the purpose
of determining whether to hold an evidentiary hearing,
the court should ordinarily assume any specific allega-
tions of fact to be true. If such allegations furnish a
basis for withdrawal of the plea under § 721 [now § 39-
27] and are not conclusively refuted by the record of
the plea proceedings and other information contained
in the court file, then an evidentiary hearing is
required. . . .
‘‘An evidentiary hearing is not required if the record
of the plea proceeding and other information in the
court file conclusively establishes that the motion is
without merit. . . . The burden is always on the defen-
dant to show a plausible reason for the withdrawal
of a plea of guilty. . . . To warrant consideration, the
defendant must allege and provide facts which justify
permitting him to withdraw his plea under [Practice
Book § 39-27].’’ (Citations omitted; emphasis omitted;
footnotes added; internal quotation marks omitted.)
State v. Salas, 92 Conn. App. 541, 544–55, 885 A.2d
1258 (2005).
The following additional facts provide context for
our required analysis. After the trial had commenced,
the defendant pleaded guilty on December 6, 2011, to
one charge of sexual assault in the first degree in
exchange for an agreed upon sentence of ten years
imprisonment followed by ten years of special parole.
Before accepting the defendant’s plea, the court, Alex-
ander, J., conducted a canvass of the defendant in
which it asked the defendant if he understood the plea
agreement, if he had discussed his plea with his attor-
ney, if he understood the nature of an Alford plea and
agreed that there was a likelihood of being found guilty
if he went to trial, if he agreed that he likely would get
a greater sentence if he proceeded to complete his trial,
if he was pleading guilty to avoid the risk of trial, and
if he understood that he was giving up his right to have
the state prove the charges the against him, to confront
witnesses and to testify on his own behalf. The defen-
dant answered yes to each of these questions. Addition-
ally, the defendant acknowledged that he was not
threatened or forced to enter his plea, that no one had
made any promises to him other than the plea
agreement, and that he was acting of his own free will.
When the court explained the charge of first degree
sexual assault to the defendant, he stated that he under-
stood the charge but that he did not agree. The court
again explained the Alford plea and again asked the
defendant if he understood and still agreed that there
was a likelihood that he would get a longer sentence
if convicted after trial. The defendant said yes. The
court then explained the sex offender registration and
treatment requirements to the defendant, and he
acknowledged that he understood them. The court pro-
ceeded to ask the defendant if he knew that he would
be subject to random searches, polygraph examinations
and electronic monitoring; the defendant offered an
inaudible response, and the court asked him if he had
any questions for his attorney. The defendant
responded by saying that ‘‘nothing that I ask is gonna
change anything.’’ The court then stated that it under-
stood the defendant’s point, but wanted to know if the
defendant had any questions that he wanted to ask his
attorney about what was occurring or about anything
of a legal nature. The defendant said no. The court
proceeded to accept the plea and to explain to the
defendant that the agreement was binding and that the
defendant could not come back and change his mind.
On December 16, 2011, the defendant returned to
court for his sentencing hearing, which also was con-
ducted by Judge Alexander. At the start of the hearing,
the following colloquy took place:
‘‘[Defense Counsel]: . . . I’m sorry, before we begin,
I understand that we are here for sentencing. I’ve met
with [the defendant]. He is expressing to me concerns
over the manner in which he was represented and is
asking that he be permitted to withdraw his plea.
‘‘The Court: Okay.
‘‘[Defense Counsel]: Under those circumstances, it
would be my application to the court on his behalf that
new counsel be appointed to investigate his claim.
‘‘The Court: With respect to it, the court does not
believe that there is any factual basis for it. This was
the court that took the plea. This was done in the middle
of evidence. And, [defendant], if you want to claim
at a time after that this was ineffective or somehow
coerci[ve] you can have a habeas proceeding. But, Mr.
[R. Bruce Lorenzen, defense counsel], as an officer of
the court, do you know of any defect in that plea canvass
that would allow the court to, in fact, take back the
plea at this time?
‘‘[Defense Counsel]: Your Honor, I think that I need
to be precise in my language. The canvass itself I think
was quite thorough.
‘‘The Court: Right. I mean, we went back and forth.
And my recollection was that I repeatedly advised him
that this was a permanent agreement and that it could
not be changed . . . .
‘‘So, with respect to it, unless you can point out some
defect, I am not inclined to have him withdraw his plea,
nor am I inclined for purposes of an agreed sentencing
to delay the sentencing, given the fact that the complain-
ants are here. And with respect to it, it was only—there
was even the agreement, I believe, of the waiver of the
[presentence investigation report] at the time. And the
court wanted some record for probation; otherwise,
the sentence would have been imposed on the date of
the plea.
‘‘So, with respect to it, while there may be reasons
postjudgment for a different counsel, at this time, I am
not going to grant your motion to withdraw because
there is no prejudice. This is an agreed sentence. So,
unless the court were going to give more and Mr. Loren-
zen had to persuade me to give less to maintain the
agreement, there is no reason that Mr. Lorenzen is not
standing next to you today for an agreed disposition.
. . . All right. The withdrawal—and I’ll just take it as
an oral motion, is denied.’’
The court then heard a statement from the victim’s
mother, and the state read a letter written by the victim,
both of which explained how the defendant’s actions
had impacted their lives. Near the end of the hearing,
before imposing sentence, the court asked the defen-
dant if he wanted to say anything, to which the defen-
dant responded, ‘‘No.’’
In this appeal, the defendant relies primarily on State
v. Morant, 13 Conn. App. 378, 384–85, 536 A.2d 605
(1988), to support his argument that he was entitled to
an evidentiary hearing or a more thorough canvass on
his motion to withdraw his plea. In Morant, the defen-
dant had informed the trial court during the sentencing
hearing that he had been forced to plead guilty, but the
court ordered him to be quiet. Id. We concluded that
the defendant was entitled to an evidentiary hearing on
the matter because the court would not permit him to
explain the merits of his claim. Id. We explained: ‘‘Once
a . . . plea has been entered, the proper procedure for
challenging the knowing and voluntary nature of the
plea is by a motion to withdraw the plea made to the
trial court before the conclusion of the proceeding at
which sentence is imposed. . . . Ordinarily, the failure
to file such a motion precludes review of claimed infir-
mities in the acceptance of a plea. . . . [Where] the
defendant did assert in a timely fashion the claim that
his guilty plea was involuntary . . . [t]he trial court
erred in not giving the defendant the opportunity to
present that claim fully. . . . In considering whether
to hold an evidentiary hearing on a motion to withdraw
a guilty plea the court may disregard any allegations of
fact, whether contained in the motion or made in an
offer of proof, which are either conclusory, vague or
oblique.’’ (Citations omitted; internal quotation marks
omitted.) Id., 383–85.
The defendant argues that what happened in Morant
is similar to what happened in the present case. He
argues: ‘‘Our case is more like State v. Morant . . . .
In Morant, the judge essentially threatened the defen-
dant to keep his mouth shut, and in our case, the judge
never even bothered to hear from the defendant and
only cursorily questioned defense counsel.’’ We are
not persuaded.
In Morant, the defendant alerted the court to his
claim that his plea was not voluntary because he had
been forced to plead guilty and his plea was not on his
own ‘‘ ‘recognition.’ ’’ State v. Morant, supra, 13 Conn.
App. 384. Instead of listening further to the defendant,
the court eventually instructed him not to make any
additional statements about his claims: ‘‘The court
responded [to the defendant] with a thinly veiled threat
telling the defendant that if he heard [any more] from
him the court might be sorry that it sentenced him
to only ten years suspended after seven.’’ (Emphasis
omitted.) Id., 385. In the present case, however, defense
counsel told the court only that the defendant had some
‘‘concerns’’ about counsel’s representation and that he
wanted to withdraw his plea. Neither the defendant nor
his attorney offered any specific concerns, nor did they
request an evidentiary hearing. The court remarked that
it did not see any factual basis to permit a withdrawal,
and it asked counsel if there were any problems with
the court’s canvass of the defendant, to which counsel
responded that the canvass had been thorough. After
proceeding with the sentencing hearing, but before sen-
tence was pronounced, the court specifically asked the
defendant if he wanted to say anything, and the defen-
dant said no.
Clearly, the facts of this case readily are distinguish-
able from the facts in Morant. Here, there was a vague
allegation that the defendant had concerns about his
attorney’s representation but no specific facts, and,
when the defendant was asked if he wanted to say
anything before sentence was pronounced, he specifi-
cally declined the opportunity. Neither the defendant
nor his attorney were denied the opportunity to present
a basis for a plea withdrawal. The trial court need not
consider allegations that merely are ‘‘conclusory, vague
or oblique . . . .’’ (Citation omitted; internal quotation
marks omitted.) State v. Morant, supra, 13 Conn. App.
385. The defendant always has the burden to show a
plausible reason for the withdrawal of a guilty plea, and
must allege and provide facts that warrant the court’s
consideration of his motion. State v. Salas, supra, 92
Conn. App. 545.7
Here, the defendant presented no basis for further
inquiry by the court. On the basis of these facts, we
conclude that the inquiry conducted by the court was
sufficient.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to use the defendant’s full name or to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
2
The charges included two counts of sexual assault in the first degree in
violation of § 53a-70 (a) (1), two counts of sexual assault in the second
degree in violation of General Statutes § 53a-71 (a) (1), one count of sexual
assault in the fourth degree in violation of General Statutes § 53a-73a (a)
(1) (B) and one count of risk of injury to a child in violation of General
Statutes § 53-21 (a) (2). From our own calculation, it appears that the defen-
dant was facing a total possible sentence of one hundred and ten years to
serve if convicted on all counts and ordered to serve his sentences consecu-
tively.
3
Despite the defendant’s claims that his rights were violated under both
the federal and the state constitutions, he has not provided a separate
analysis or claimed greater protection under the state constitution. ‘‘Because
the defendant has not set forth a separate state constitutional analysis
pursuant to State v. Geisler, 222 Conn. 672, 684–86, 610 A.2d 1225 (1992),
we . . . analyze the defendant’s claim under the requirements of the United
States constitution.’’ State v. Morales, 121 Conn. App. 767, 770 n.3, 996 A.2d
1206, cert. denied, 298 Conn. 909, 4 A.3d 835 (2010).
4
The state, in its brief, has analyzed thoroughly the merits of the defen-
dant’s motion to withdraw his plea on the defendant’s asserted ground that
the plea was involuntary and that it resulted from the denial of the effective
assistance of counsel. The defendant’s claim on appeal, however, is that he
was unable to develop a thorough record or to prove the merits of his
motion to withdraw his plea because the trial court failed to conduct an
adequate inquiry or hold an evidentiary hearing on his motion. We conclude
that the merits of motion to withdraw are not the basis for the appeal.
Rather, it is the adequacy of the trial court’s inquiry surrounding the motion
to withdraw the plea that forms the basis of this appeal. We, therefore, do
not consider the merits of the motion.
5
Practice Book § 39-26 provides: ‘‘A defendant may withdraw his or her
plea of guilty or nolo contendere as a matter of right until the plea has been
accepted. After acceptance, the judicial authority shall allow the defendant
to withdraw his or her plea upon proof of one of the grounds in Section
39-27. A defendant may not withdraw his or her plea after the conclusion
of the proceeding at which the sentence was imposed.’’
6
Practice Book § 39-27 provides: ‘‘The grounds for allowing the defendant
to withdraw his or her plea of guilty after acceptance are as follows:
‘‘(1) The plea was accepted without substantial compliance with Section
39-19;
‘‘(2) The plea was involuntary, or it was entered without knowledge of
the nature of the charge or without knowledge that the sentence actually
imposed could be imposed;
‘‘(3) The sentence exceeds that specified in a plea agreement which had
been previously accepted, or in a plea agreement on which the judicial
authority had deferred its decision to accept or reject the agreement at the
time the plea of guilty was entered;
‘‘(4) The plea resulted from the denial of effective assistance of counsel;
‘‘(5) There was no factual basis for the plea; or
‘‘(6) The plea either was not entered by a person authorized to act for a
corporate defendant or was not subsequently ratified by a corporate
defendant.’’
7
In State v. Salas, supra, 92 Conn. 545–46, for example, the defendant
submitted two affidavits to the court containing specific detailed factual
claims: ‘‘In support of his motions to withdraw his plea and for an evidentiary
hearing, the defendant submitted an affidavit that averred, inter alia, the
following: His attorney did not explain the purposes of a plea canvass or
allow him to raise any objections; his attorney told him that he had no
choice but to plead nolo contendere; his attorney never explained to him
the importance of the plea; his attorney refused to take him to trial because
of the cost and told him that he could not have a trial; he did not understand
what nolo contendere meant; his attorney never used the words ‘guilty’
when telling him that he was to plead nolo contendere; he did not know
that a nolo plea would result in a finding of guilt; and when the court asked
him if anyone forced him to plead guilty, he said no because he was not
pleading guilty.
‘‘The affidavit of Ken Miller, a close business associate of the defendant,
was also submitted. Miller averred to the following: On the morning of the
plea, the defendant told him that he still wanted a trial; the defendant’s
attorney appeared very forceful and animated during discussions with the
defendant that morning; the defendant appeared solemn; the defendant
appeared to be in a stupor, and he felt as though the defendant’s attorney
was forcing him to plead.’’