STATE v. MAYONE, No. CR 06 0119915S (Jul. 25, 2007)

STATE OF CONNECTICUT v. GARY MAYONE.

2007 Ct. Sup. 13222, 43 CLR 808
No. CR 06 0119915SConnecticut Superior Court Judicial District of Litchfield, Geographic Area 18 at Bantam
July 25, 2007

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Memorandum of Decision Re Defendant’s Motion to Withdraw Guilty Plea

RICHARD M., MARANO J.

The defendant, Gary Mayone, was charged with two counts of violation of a protective order in violation of General Statutes § 53a-223, two counts of disorderly conduct in violation of General Statutes § 53a-182, one count of assault in violation of General Statutes § 53a-61, and one count of failure to appear in violation of General Statutes § 53a-172. The defendant appeared in court with counsel on February 9, 2007, at which time the defendant pleaded guilty to one count of violation of a protective order, one count of failure to appear and one count of assault. On February 9, 2007, the court, Marano, J., canvassed the defendant and made a finding that the plea was knowingly and voluntarily made with the assistance of competent counsel and that there was a factual basis for the plea. Also at this time, the defendant waived the pre-sentence investigation (PSI) and asked the court to impose the sentence as of that day. The court then accepted the plea and sentenced the defendant in accordance with the plea agreement. At the time of this hearing, the defendant was on probation in Arizona and there was a detainer warrant outstanding.

On July 3, 2007, the defendant filed this motion to withdraw his guilty plea. The defendant claims that he only pleaded guilty on the erroneous advice of his counsel that he would be eligible for certain rights under the Interstate Agreement on Detainers with respect to the pending violation of probation in Arizona. A violation of probation, however, is not subject to the Agreement on Detainers. The defendant argues that had it not been for the incorrect advice, he would not have pleaded guilty. Therefore, the defendant seeks to withdraw his plea of guilty after sentencing, arguing that the plea was not made voluntarily.

Practice Book §§ 39-19[1] and 39-20[2] govern the acceptance of a plea by the court and §§ 39-26[3] and 39-27[4] govern the withdrawal of a plea. In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274
(1969), the United States Supreme Court discussed the constitutional CT Page 13223 requirements for ensuring that defendants only enter guilty pleas with a full understanding of all of the circumstances surrounding the plea. Practice Book §§ 39-19 and 39-20 embody the requirements and procedure that a Connecticut court must follow before accepting a defendant’s plea. Our Supreme Court has determined that “[t]he Boykin constitutional essentials for the acceptance of a plea of guilty are included in our rules and are reflected in Practice Book §§ [39-19 and 39-20] . . . Those rules provide that the trial court must not accept a guilty plea without first addressing the defendant personally in open court and determining that the defendant fully understands the items enumerated in § 39-19, and that the plea is made voluntarily pursuant to § 39-20. There is no requirement, however, that the defendant be advised of every possible consequence of such a plea . . . Although a defendant must be aware of the direct consequences of a plea, the scope of direct consequences is very narrow . . . In Connecticut, the direct consequences of a defendant’s plea include only the mandatory minimum and maximum possible sentences; Practice Book § [39-19(2) and (4)]; the maximum possible consecutive sentence; Practice Book § [39-19(4)]; the possibility of additional punishment imposed because of previous conviction(s); Practice Book § [39-19(4)]; and the fact that the particular offense does not permit a sentence to be suspended. Practice Book § [39-19(3)] . . . The failure to inform a defendant as to all possible indirect and collateral consequences does not render a plea unintelligent or involuntary in a constitutional sense.” (Internal quotation marks omitted.) State v. Faraday, 268 Conn. 174, 201-02, 842 A.2d 567 (2004).

The distinction in our rules of practice is clear: a defendant may withdraw a plea after it has been accepted by the court, provided one of the grounds enumerated in § 39-27 are met. Withdrawal of a plea, however, is not permitted after the conclusion of the proceeding at which the sentence was imposed. See Practice Book § 39-26; State v. Nelson, 221 Conn. 635, 638 n. 5, 605 A.2d 1381 (1992); State v. Garvin, 43 Conn.App. 142, 159, 682 A.2d 562 (1996), aff’d, 242 Conn. 296, 699 A.2d 921 (1997) (“Because Practice Book [§ 39-26] precludes a defendant from withdrawing his plea after the conclusion of sentencing, [t]he failure of the defendant to make a motion to withdraw his plea before the conclusion of the proceeding at which the sentence was imposed ordinarily precludes review of claimed infirmities in the acceptance of a plea”); State v. Smith, 19 Conn.App. 646, 649, 563 A.2d 1034, cert. denied, 213 Conn. 806, 567 A.2d 836 (1989); State v. Kiss, 3 Conn.App. 400, 488 A.2d 845 (1985); State v. Gamble, 27 Conn.App. 1, 13, 604 A.2d 366, cert. denied, 222 Conn. 901, 606 A.2d 1329 (1992); State v. Anderson, 23 Conn.App. 564, 567, 583 A.2d 142
(1990), rev’d in part on other grounds, 220 Conn. 400, 599 A.2d 738
(1991).[5]
CT Page 13224

In the present case, the defendant does not argue that the court failed to comply with the requirements of §§ 39-19 and 39-20. To the contrary, the exhibits submitted by the defendant show that he was canvassed by the court on February 9, 2007. He was informed of the direct consequences of his plea as required by Boykin and our rules of practice. The specific effect of the defendant’s plea on a violation of probation in another state is not a direct consequence as it is not contained with the requirements of §§ 39-19 and 39-20.

The defendant’s argument is that his plea was involuntary due to the erroneous advice he received from his attorney. This claim, if proven, would be proper grounds for withdrawal under § 39-27(2), or perhaps subsection (4), as long as it was raised prior to the conclusion of the proceeding at which the defendant was sentenced. Under § 39-26, however, since that proceeding ended, the defendant no longer has the option to seek withdrawal on these grounds.[6] “A defendant may not withdraw his or her plea after the conclusion of the proceeding at which the sentence was imposed.” Practice Book § 39-26.

The court is fully aware that, in this case, the defendant was sentenced on the same day that the plea was accepted. The court also notes, however, that it was the defendant’s choice to waive the PSI and be sentenced that day.[7] Id. Pursuant to § 39-26, the defendant is not permitted to withdraw his plea. As such, the defendant’s motion is denied.

[1] Section 39-19 provides that: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands: (1) The nature of the charge to which the plea is offered; (2) The mandatory minimum sentence, if any; (3) The fact that the statute for the particular offense does not permit the sentence to be suspended; (4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and (5) The fact that he or she has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.”

[2] Section 39-20 provides that: “The judicial authority shall not CT Page 13225 accept a plea of guilty or nolo contendere without first determining, by addressing the defendant personally in open court, that the plea is voluntary and is not the result of force or threats or of promises apart from a plea agreement. The judicial authority shall also inquire as to whether the defendant’s willingness to plead guilty or nolo contendere results from prior discussions between the prosecuting authority and the defendant or his or her counsel.”

[3] Section 39-26 provides that: “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.”

[4] Section 39-27 provides that: “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 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.”

[5] “Under limited circumstances, a defendant may withdraw a plea after the conclusion of the sentencing proceeding. Postsentence attacks on the voluntary and intelligent nature of a plea . . . may be made if the defendant has not been made aware of the true nature of the charge against him because the court failed to apprise him of a crucial element of the charge . . . or if the court failed to explain to the defendant his plea operated as a waiver of constitutional rights . . . If it is apparent on the record that a defendant’s constitutional rights were infringed during the plea taking proceeding or that the defendant was not advised of the consequences of his plea and was therefore denied due process, a plea may be withdrawn even after the sentence proceeding has concluded.” (Citations omitted; internal quotation marks omitted.)State v. Falcon, 84 Conn.App. 429, 433-34, 853 A.2d 607 (2004). None of these circumstances, however, apply to this case since the defendant’s CT Page 13226 exhibits show that he was canvassed regarding the nature and direct consequences of his plea to the current charges.

[6] The defendant cites State v. Collins, 207 Conn. 590, 542 A.2d 1131
(1988), for the premise that if the court determines that the defendant’s plea would not have been made if he had been provided with accurate information, then the defendant must be permitted to withdraw his guilty plea. That is true only if, as in Collins, the defendant had raised the issue prior to the completion of the proceeding at which the defendant was sentenced. Id. Collins, however, reached the issue of the claim of incorrect advice “[b]ecause [it] was raised in a timely fashion at the defendant’s sentencing hearing.” Id., 598.

[7] The appellate court in State v. Brown, 19 Conn.App. 640, 642
(1989), faced a similar issue. In Brown, the defendant waived his right to a PSI and later argued that he should be able to raise claims of error despite being sentenced “because he was sentenced immediately following the entry of his pleas, [and] he had no opportunity to reflect on the court’s plea canvass and to decide whether or not to object thereto.” Id. “The defendant’s argument, however, overlooks the fact that the cause of his immediate sentencing was his waiver of his statutory right to a PSI. Only the defendant can initiate the waiver of a PSI . . . Accordingly, the defendant brought on the immediate sentencing and thereby eliminated the period during which he could make a motion to withdraw his pleas.” (Citation omitted.) Id. There is no authority that would indicate a different result even where the very infirmity that the defendant complains of, the erroneous advice of counsel, was what caused him to waive the PSI and thus lose the right to withdraw his plea. Absent any indication to the contrary, this court follows the specific language in Practice Book § 39-26 and, as such, the defendant may not withdraw his plea.

CT Page 13227