State v. Anthony D.

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 STATE v. ANTHONY D.—DISSENT

ROGERS, C. J., with whom McDONALD and ROB-
INSON, Js., join, dissenting. I respectfully dissent from
the majority opinion because I believe, under the partic-
ular circumstances of this case, that the trial court
abused its discretion in denying the motion of the defen-
dant, Anthony D., Sr., to withdraw his plea without
further inquiry. In my view, to hold otherwise disregards
the remedy afforded by Practice Book §§ 39-26 and 39-
27 (4),1 which allow for withdrawal of a plea when a
plea is claimed to have been entered without effective
assistance of counsel.
As the Appellate Court’s opinion recounts, on Decem-
ber 16, 2011, the defendant appeared at a sentencing
hearing before the same judge that had accepted his
plea ten days earlier. At the hearing, the following dis-
cussion ensued between defense counsel and the court:
‘‘[Defense Counsel]: . . . [B]efore we begin . . .
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,
[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 . . . .
‘‘So, with respect to it, while there may be reasons
postjudgment for a different counsel, at this time, I am
not going to grant [the defendant’s] motion to withdraw
because there is no prejudice. . . . The withdrawal—
and I’ll just take it as an oral motion, is denied.’’ (Empha-
sis added; internal quotation marks omitted.) State v.
Anthony D., 151 Conn. App. 109, 115–17, 94 A.3d 669
(2014).
As the foregoing makes clear, the trial court denied
the defendant’s motion to withdraw his plea summarily,
without conducting any inquiry into the specific allega-
tions regarding his claim of ineffective assistance of
counsel.
The law governing withdrawal of a guilty plea, and
whether the trial court should hold an evidentiary hear-
ing to consider whether to allow such withdrawal, is
well established. Practice Book § 39-27 permits the
withdrawal of a plea before sentencing for a variety of
grounds including, as the trial court recognized, invol-
untariness, the lack of an adequate plea canvass, or a
change to the agreed upon sentence.2 Additionally, a
trial court must allow a defendant to withdraw his plea
if that plea ‘‘resulted from the denial of effective assis-
tance of counsel . . . .’’ Practice Book § 39-27 (4). As
a general matter, ‘‘[a] claim of ineffective assistance of
counsel is . . . made pursuant to a petition for a writ
of habeas corpus rather than in a direct appeal. . . .
Section 39-27 . . . however, provides an exception to
that general rule when ineffective assistance of counsel
results in a guilty plea.’’ (Emphasis added; internal
quotation marks omitted.) State v. Sutton, 95 Conn.
App. 139, 145, 895 A.2d 805, cert. denied, 278 Conn. 920,
901 A.2d 45 (2006).
‘‘After a guilty plea is accepted but before the imposi-
tion of sentence the court is obligated to permit with-
drawal upon proof of one of the grounds in [Practice
Book § 39-27]. An evidentiary hearing is not required
[on a motion to withdraw a plea] if the record of the
plea proceeding and other information in the court file
conclusively establishes that the motion is without
merit. . . . In considering whether to hold an eviden-
tiary 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. For the
purpose of determining whether to hold an evidentiary
hearing, the court should ordinarily assume any specific
allegations of fact to be true. If such allegations furnish
a basis for withdrawal of the plea under [§ 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. . . .
The burden is always on the defendant to show a plausi-
ble reason for the withdrawal of a plea of guilty. . . .
To warrant consideration, the defendant must allege
and provide facts which justify permitting him to with-
draw his plea under [§ 39-27].’’ (Citations omitted;
emphasis omitted; internal quotation marks omitted.)
State v. Salas, 92 Conn. App. 541, 544–45, 885 A.2d
1258 (2005). ‘‘[O]nce entered, a guilty plea cannot be
withdrawn except by leave of the court, within its sound
discretion, and a denial thereof is reversible only if it
appears that there has been an abuse of discretion.’’
(Internal quotation marks omitted.) State v. Crenshaw,
210 Conn. 304, 308–309, 554 A.2d 1074 (1989).
Obviously, if the basis for a motion to withdraw is
the inadequacy of a plea canvass, the record of the plea
proceedings will be especially informative. In contrast,
however, an ineffectiveness based motion for plea with-
drawal typically will rest upon advice given or other
aspects of counsel’s performance that occur outside
the courtroom. Accordingly, the factual basis underly-
ing the motion, in all likelihood, will not be readily
apparent from the plea proceedings.3 See, e.g., State v.
Sutton, supra, 95 Conn. App. 141 (alleging counsel’s
failure to investigate case, to prepare defense for trial,
to locate and to interview alibi witnesses, and to provide
defendant with police reports and witness statements);
State v. Barnwell, 102 Conn. App. 255, 262, 925 A.2d
1106 (2007) (alleging counsel’s failure to obtain, in
timely fashion, certain evidence); State v. Stith, 108
Conn. App. 126, 132, 946 A.2d 1274 (alleging counsel’s
failure to investigate medical evidence), cert. denied,
289 Conn. 905, 957 A.2d 874 (2008); State v. Gray, 63
Conn. App. 151, 162, 772 A.2d 747 (2001) (alleging coun-
sel’s failure to file motion to suppress), cert. denied,
256 Conn. 934, 776 A.2d 1151 (2001); State v. Perez, 57
Conn. App. 385, 387, 748 A.2d 384 (2000) (alleging that
previous relationship with counsel prevented effective
communication of appropriate legal advice).
My review of the cases in which a plea withdrawal
was sought based on a claim of ineffective assistance
of counsel demonstrates that, in each case, the defen-
dant was provided with an opportunity to present alle-
gations of fact in support of the claim. From those
allegations of fact, the court could evaluate the merit
of the motion to determine whether it should be denied
or whether an evidentiary hearing should be held. In
the present case, however, the trial court denied the
defendant’s motion without giving the defendant an
opportunity to assert any allegations of fact, relying
instead on its recollection of the plea proceeding. In
my view, there are two problems with the trial
court’s actions.
First, contrary to Practice Book § 39-27 (4), the trial
court reasoned, mistakenly, that a claim of ineffective
assistance was not a proper basis for a plea withdrawal.4
In the trial court’s view, as evidenced by its comments
on the record, a habeas proceeding after sentencing
was the proper forum for such a claim. Specifically, the
court’s immediate response to the defendant’s claim
was to suggest a habeas proceeding, and it thereafter
suggested that the defendant may have reasons to seek
new counsel ‘‘postjudgment . . . .’’ Although the trial
court was correct that the defendant could make this
claim in a habeas proceeding, the rules of practice make
clear that he was not required to do so and could prop-
erly move to withdraw his plea at this earlier stage of
the proceedings. See State v. Sutton, supra, 95 Conn.
App. 145.
Second, the trial court was singularly focused on the
plea proceedings.5 Specifically, it repeatedly indicated
that ‘‘unless [defense counsel could] point out some
defect’’ in the plea canvass, it would not permit the
defendant to withdraw his plea. By relying only on its
impressions of the plea proceeding and inquiring no
further, the trial court foreclosed the opportunity to
obtain sufficient information to make a reasoned
decision.
In State v. Morant, 13 Conn. App. 378, 536 A.2d 605
(1988), the trial court denied the defendant the opportu-
nity to present his claim of ineffective assistance by
misstating proper procedure and not allowing him to
provide specific allegations of fact in support of his
claim. See id., 380 and n.2, 385 (Appellate Court found
that trial court ‘‘erroneously informed’’ defendant that
‘‘no claim that you have ineffective assistance of coun-
sel . . . will do you any good to have your plea with-
drawn at a future time’’ and stated that based on trial
court’s actions at sentencing ‘‘[u]nderstandably, the
defendant failed to make more specific allegations of
fact’’). Likewise, in the present case, the trial court
stated that the claim should be consigned to a habeas
forum and limited its inquiry to the plea canvass.
Accordingly, we have no way of knowing what specific
allegations of fact, if any, the defendant would have
provided in support of his motion.6 In my view, the
defendant should have had the opportunity to present
allegations of fact to support his claim that his plea of
guilty should be withdrawn for ineffective assistance
of counsel before the court denied his motion.7
It is important to emphasize that if the court had
provided an opportunity for the defendant to make fac-
tual allegations and the trial court believed that they
were vague or conclusory, it could have denied the
motion without a hearing.8 See State v. Salas, supra, 92
Conn. App. 544 (‘‘[i]n 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’’
[internal quotation marks omitted]).9 Contrary to the
majority’s position that this practice would have inter-
rupted the orderly administration of justice, in the
absence of a legitimate basis for making such a claim,
the entire colloquy would probably have only taken
several minutes. In this case, however, no allegations
of fact for the court to evaluate were ascertained
because the trial court denied the oral motion to with-
draw without ever allowing the defendant the opportu-
nity to explain the underlying reasons for it.
For the foregoing reasons, I respectfully dissent. I
believe that the appropriate remedy is to remand the
case for further inquiry into the defendant’s claim of
ineffective assistance of counsel. Further inquiry will
give the defendant an opportunity to meet his burden
and if the allegations of fact furnish a basis for the
defendant’s claim that cannot be resolved from the
record, then an evidentiary hearing should be held. See
State v. Torres, 182 Conn. 176, 185–86, 438 A.2d 46
(1980) (‘‘[i]f such allegations furnish a basis for with-
drawal of the plea under [Practice Book § 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’’
[emphasis added]); State v. Salas, supra, 92 Conn. App.
544 (same).
1
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.’’
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.’’
Practice Book § 39-19 governs plea canvassing and requires the trial court
to apprise a defendant of several factors prior to accepting that defen-
dant’s plea.
2
See footnote 1 of this opinion.
3
Part of a plea canvass may be relevant to an ineffectiveness claim, for
example, the defendant expressing satisfaction with his representation when
queried about it. Reviewing courts have relied on such acknowledgment
of satisfaction, along with other considerations, including the trial court’s
credibility determinations regarding the claim, to conclude that a defendant’s
motion to withdraw a guilty plea was without merit. See, e.g., State v. Stith,
108 Conn. App. 126, 132, 946 A.2d 1274 (finding, on basis of lack of evidence
concerning ineffective assistance of counsel and defendant’s statement dur-
ing plea canvass that he was satisfied with his defense counsel, that defen-
dant had failed to satisfy burden for motion to withdraw guilty plea), cert.
denied, 289 Conn. 905, 957 A.2d 874 (2008); State v. Barnwell, 102 Conn.
App. 255, 263–64, 925 A.2d 1106 (2007) (concluding that record of plea
canvass conclusively refuted defendant’s claim of ineffective assistance,
because defendant had stated that he was very satisfied with his counsel’s
representation and there were no indicia to contrary); State v. Brown, 82
Conn. App. 678, 682, 846 A.2d 943 (in affirming denial of motion to withdraw
plea, Appellate Court deferred to trial court’s finding that testimony of
defendant’s former attorney was more credible than defendant’s), cert.
denied, 270 Conn. 906, 853 A.2d 522 (2004). Notably, in the present case,
the record of the plea proceedings reveals that the defendant was not asked
whether he was satisfied with the representation he had received, nor did
he otherwise volunteer such an opinion. When the defendant was asked
whether he had any questions for his attorney, he replied, ‘‘nothing that I
ask is gonna change anything.’’ Although I agree with the majority that the
meaning of this statement is ambiguous, it does not inspire confidence that
the defendant was entirely satisfied with his counsel’s performance.
4
On June 29, 2012, more than six months after the sentencing hearing,
the trial court issued a written memorandum of decision explaining its ruling
on the defendant’s motion to withdraw his guilty plea. In that decision,
the trial court acknowledged that, pursuant to Practice Book § 39-27 (4),
ineffective assistance was a proper ground for a plea withdrawal. Otherwise,
however, the court’s decision focused on the adequacy of its plea canvass,
a point which the defendant did not contest.
5
While not at issue in this case, the trial court did also mention that if it
was going to impose a sentence that exceeded the agreed upon sentence,
then a motion to withdraw could be appropriate. See Practice Book § 39-
27 (3).
6
Addressing the defendant’s conduct, the Appellate Court stated that,
‘‘[c]learly, the facts of this case readily are distinguishable from the facts
in Morant. Here, there was a vague allegation that the defendant had con-
cerns 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 specifically declined the opportunity.’’ (Emphasis added.)
State v. Anthony D., supra, 151 Conn. App. 118–19. The defendant’s ‘‘opportu-
nity’’ to speak was offered at the conclusion of the sentencing hearing, long
after the trial court had denied his motion to withdraw. Given that the trial
court denied the motion, the defendant very reasonably could have thought
that the ineffective assistance of counsel matter was closed, because it was.
See id., 117 (trial court stated, ‘‘[t]he withdrawal—and I’ll just take it as an
oral motion, is denied’’ [internal quotation marks omitted]). Accordingly, I
would not hold the defendant’s failure to press the matter further against him.
7
The majority suggests that finding fault with the trial court in the present
matter would equate to holding that a court, faced with a motion to withdraw
a plea, has a duty in all cases to undertake some sort of formal inquiry of
the defendant. I disagree. The court’s only obligations are to recognize that
an ineffective assistance of counsel claim can be the basis for a motion to
withdraw a plea and to permit a defendant to articulate his allegations prior
to denying the motion. In my view, the only fair reading of the colloquy
regarding the motion was that the court was foreclosing defense counsel
from providing information regarding the ineffective assistance claim and
limited him to any allegations regarding the adequacy of the plea canvass.
Additionally, the majority’s reasoning that a trial court has no affirmative
obligation to inquire as to the basis for the claim makes little sense in the
present case, in which the trial court did affirmatively inquire as to the basis
for a claim of a defective plea, even though that claim had not been made,
and foreclosed the defendant from discussing the ineffective assistance
claim by incorrectly stating that it should be reserved for a habeas pro-
ceeding.
8
Due to the very nature of an ineffectiveness claim and depending on the
nature of the specific allegations underlying such a claim, it may be necessary
for the court to allow or appoint different counsel to assess and present
the claim objectively and effectively. See, e.g., State v. Sutton, supra, 95 Conn.
App. 141 (court appointed special public defender to represent defendant in
hearing on motion to withdraw plea); State v. Salas, supra, 92 Conn. App.
543, 545–46 (defendant retained new counsel to withdraw his plea, submitted
own detailed affidavit, and that of another party); State v. Brown, 82 Conn.
App. 678, 680–81, 846 A.2d 943 (court appointed new attorney for defendant
who filed new formal motion to withdraw plea and represented defendant
at hearing), cert. denied, 270 Conn. 906, 853 A.2d 522 (2004); State v. Gray,
supra, 63 Conn. App. 154 (defendant retained new counsel); State v. Perez,
supra, 57 Conn. App. 387 (defendant’s new counsel sought plea withdrawal).
The decision to allow or appoint different counsel remains within the trial
court’s sound discretion. Additionally, it can also employ other methods in
dealing with this particular motion. See, e.g., State v. Barnwell, supra, 102
Conn. App. 262 (defendant allowed to read statement into record about
dissatisfaction with his attorney’s performance).
9
In distinguishing this case from Morant, the Appellate Court stated that
‘‘there was a vague allegation that the defendant had concerns about his
attorney’s representation but no specific facts’’; (emphasis added) State v.
Anthony D., supra, 151 Conn. 118; and in the same paragraph that court
stated that ‘‘[t]he trial court need not consider allegations that merely are
conclusory, vague or oblique . . . .’’ (Emphasis added; internal quotation
marks omitted.) Id., 119. It is clear from the colloquy, however, that defense
counsel’s statement regarding his client’s concerns merely described the
basis for the defendant’s motion—ineffective assistance of counsel. As I
have explained, the trial court then foreclosed the defendant from providing
any specific allegations of fact to support the claim. I am mindful that it is
a defendant’s burden to present those allegations of fact but in the present
case the defendant was prevented from doing so by the court.