State v. Lameirao

STATE OF CONNECTICUT v. JOSE A. LAMEIRAO

AC 32688

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued February 7

officially released May 4, 2012

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(Appeal from Superior Court, judicial district of

Fairfield, Thim, J.)

Susan M. Hankins, special public defender, for the appellant (defendant).

Adam E. Mattei, special deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Cornelius P. Kelly, senior assistant state's attorney, for the appellee (state).

Opinion

LAVINE, J. The defendant, Jose A. Lameirao, appeals from the judgments of conviction,¹ rendered by the trial court pursuant to his guilty pleas of attempt to commit risk of injury to a child in violation of General Statutes §§ 53a-49 (a) (2) and 53-21 (a) (2), risk of injury to a child in violation of General Statutes § 53-21 (a) (1), illegal operation of a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a, illegal operation of a motor vehicle while his license was under suspension in violation of General Statutes § 14-215 and his admission to two counts of violation of probation pursuant to General Statutes § 53a-32.² On appeal, the defendant claims that the trial court improperly denied his motion to withdraw his pleas and admissions (motion to withdraw) because, during the plea hearing, the court (1) failed to address him personally to make the determinations required by Practice Book §§ 39-19 and 39-20, and (2) misled him with its advisement that the state's recitation of the facts constituted the essential elements of the crimes charged.³ He also claims that the court improperly found that (3) his pleas were intelligent and voluntary, and (4) his counsel's representation was not ineffective. We affirm the judgments of the trial court.

In late 2008, the defendant had charges pending against him in five cases. The state charged the defendant with risk of injury to a child and other violations in two criminal files, operating a motor vehicle while under the influence of intoxicating liquor or drugs and two counts of violation of probation arising from motor vehicle offenses. The following facts provide the basis for each of the charges.

The Fairfield case: After his soccer game on June 1, 2008, an eleven year old boy and his mother went to a McDonald's restaurant in Fairfield. Before getting something to eat, they used the rest rooms. A surveillance camera captured the defendant following the boy into the rest room. The boy told the police that after he had washed his hands, the defendant stood in front of him and asked him several personal questions, which the boy declined to answer. The defendant held a cellular telephone in one hand and asked the boy to enter a stall and provide him with his telephone number. With his other hand, the defendant lifted the boy's soccer shirt, exposing the boy's lower abdomen and the groin area of his shorts. The boy pushed his shirt down and turned to exit the rest room. The defendant reached for the boy, told him not to leave and followed him out of the rest room. The boy was frightened and told his mother about the incident. The next day, the boy's mother reported the incident to the police. The boy gave the police a sworn statement, noting that the defendant had a u-shaped scar under one of his eyes. One day later, the boy identified the defendant, who has ascar under one of his eyes, in a photographic array. The defendant was arrested and charged with risk of injury to a child in violation of § 53-21, sexual assault in the fourth degree in violation of General Statutes § 53a-73a and breach of the peace in the second degree in violation of General Statutes § 53a-181.

The motor vehicle cases: On October 10, 2008, the defendant was sentenced in the geographical area number twenty-three court in the judicial district of New Haven in two cases stemming from charges of operating a motor vehicle while under the influence of intoxicating liquor or drugs. In both cases, the defendant was sentenced to probation. One of the conditions of probation prohibited the defendant from operating a motor vehicle while his privilege to drive was under suspension and another forbade the defendant from driving until his license was restored. These files were later transferred to the judicial district of Fairfield at Bridgeport.

On November 11, 2008, after being notified of a motor vehicle accident, a Bridgeport police officer stopped a motor vehicle with heavy front end damage. The defendant was operating the vehicle, and the officer saw a bottle of rum in plain view. The defendant emitted an odor of alcohol and was unable to perform any field sobriety tests. He was arrested and charged with operating a motor vehicle while under the influence of intoxicating liquor or drugs. On the basis of the defendant's November 11, 2008 motor vehicle arrest, an arrest warrant for violation of probation was issued against him.

The Bridgeport case: On November 25, 2008, at approximately 7:30 p.m., the defendant was operating a truck in Bridgeport when he stopped adjacent to a teenage boy who was riding a bicycle. The defendant asked the teen if he wanted to smoke and drink. He then opened the door of the truck and grabbed the teen's jacket. The teen pushed the defendant's hand away, memorized a portion of the truck's license plate and called 911. The police found a truck fitting the description given by the teen at a hotel in Milford. The police took the teen to the hotel where he identified the defendant. The defendant was arrested and charged with attempt to commit kidnapping in the second degree in violation of General Statutes § 53a-94 and risk of injury to a child in violation of § 53-21 (a) (1).

Initially, the defendant was represented by counsel afforded him by his union membership, but he dismissed that counsel, who had advised him to accept a plea offer. After dismissing prior counsel, the defendant retained attorney Richard P. Silverstein to represent him in all five cases. After at least one continuance, the Bridgeport case came before the court, Thim, J., for pretrial discussions. The defendant himself filed a motion for disclosure of the 911 tapes. The state repre-sented that it wanted to try the Fairfield and Bridgeport cases together. Silverstein opposed joinder of the criminal cases. The court stated that discussion of joinder was premature and removed the Bridgeport case from the trial list.

On January 25, 2010, the Bridgeport case came before the court, Devlin, J., for trial. Judge Devlin asked the parties whether settlement negotiations had been exhausted. Silverstein represented that there had been several pretrials and that he was still discussing the matter with the defendant. He also represented that the state had disclosed the 911 tapes, which he would discuss with the defendant, and ''that might cause [the defendant] to rethink [his] position.'' The defendant told the court, ''I'm not pleading to something The court advised the defendant that the decision to plead guilty was his, but that he should consider the matter carefully. The court then asked which of the criminal cases would be tried first. The state repeated its intention to try the criminal cases together. The court stated that jury selection would start ''on Wednesday'' and advised the state to file a motion for joinder.

The parties appeared before Judge Devlin to begin jury selection on January 27, 2010. Before voir dire commenced, the defendant decided to change his plea. The parties then appeared before Judge Thim, and the defendant pleaded guilty to one count of attempt to commit risk of injury to a child in violation of §§ 53a-49 (a) (2) and 53a-21 (a) (2) in the Fairfield case, one count of risk of injury to a child pursuant to § 53-21 (a) (1) in the Bridgeport case,⁴ one count of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of § 14-227a and one count of illegal operation of a motor vehicle while his license was under suspension in violation of § 14-215. The defendant also admitted to two counts of violation of probation in violation of § 53a-32. After the defendant pleaded, Judge Thim directed certain questions to him.

The court asked the defendant his age, how much education he had received, and whether he had taken any drugs, medication or alcohol that would affect his ability to understand what was taking place in court that day. The defendant told the court that he was fortysix years old, had gone to Central High...