State v. Roberts

320 A.3d 989

227 Conn.App. 159

STATE of Connecticut

v.David D. ROBERTS

(AC 45801)

Appellate Court of Connecticut.

Argued March 13, 2024

Officially Released August 6, 2024

Michael W. Brown, with whom were Vishal K. Garg, West Hartford, and, on the brief, Abigail H. Mason, for the appellant (defendant).

Rocco A. Chiarenza, senior assistant state’s attorney, with whom, on the brief, were Christian M. Watson, state’s attorney, Alison Kubas, assistant state’s attorney, and Danielle Koch, deputy assistant state’s attorney, for the appellee (state).

Alvord, Suarez and Westbrook, Js.

WESTBROOK, J.

₁₆₁The defendant, David D. Roberts, appeals from the judgment of conviction rendered following the trial court’s denial of his motion to withdraw his guilty plea. On appeal, the defendant claims that the court improperly (1) concluded that it had conducted an adequate plea canvass; (2) (a) failed to hold an evidentiary hearing on his ineffective assistance of counsel claim, and (b) concluded that his guilty plea was not the result of ineffective assistance of counsel;¹ and (3) concluded that General Statutes (Rev. to 2019) § 53a-181l² is not facially unconstitutional. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts, as set forth by the prosecutor as the factual basis underlying the plea, and procedural) ₁₆₂history are relevant to our resolution of this appeal. On September 11, 2020, the defendant approached a group of individuals renting his neighbor’s property. During this interaction, he cocked and aimed a shotgun at them while calling them racial slurs and telling them to "get the F out of here." The defendant then called the property owner and left a voicemail message in which, as the prosecutor summarized the message, he stated "that he was going to bring the N-words and Puerto Ricans down, and that the owner of the residence was f-ed, and that the war was on if he found out that there would be more people of color renting at that residence."

The defendant was arrested and charged in two separate dockets. He was charged in the first docket for the incident involving the renters (first docket) with reckless endangerment in the second degree in violation of General Statutes § 53a- 64,³ threatening in the second degree in violation of General Statutes § 53a-62,⁴ and breach of the peace in the second degree in violation of General Statutes § 53a-181.⁵ In the second docket, ₁₆₃which pertained to the message he left for the property owner (second docket), the defendant was charged with intimidation based on bigotry or bias in the third degree in violation of § 53a-181l,⁶ and harassment in the second degree in violation of General Statutes (Rev. to 2019) § 53a-183.⁷

On August 31, 2021, the state conveyed a plea offer to the defendant in the first docket that required a guilty plea to a charge of intimidation based on bigotry and bias in the second degree. When the proposed disposition was presented to the court, the court stated that it would only accept a disposition that included a guilty plea to a least one charge in each docket. The state later extended the defendant a second plea offer pursuant to which he would enter a guilty plea to reckless endangerment in the second degree and threatening in the first degree in violation of General Statutes § 53a-61aa⁸ ₁₆₄in the first docket, and intimidation based on bigotry or bias in the second docket. In return for his guilty pleas, the state would agree to a sentence of six years of incarceration, execution suspended after one year, and three years of probation. The defendant would retain the right to argue for a term of incarceration as short as six months.

On January 14, 2022, the defendant appeared before the court to plead guilty under the Alford doctrine⁹ in accordance with the second plea offer. During the hearing, however, the court, Keegan, J., expressed doubt about the sufficiency of the factual basis for applying the charge of intimidation based on bigotry or bias to the second docket. The state offered to instead put the defendant to plea on the charge of intimidation based on bigotry or bias in the first docket and defense counsel agreed to this change. The defendant was therefore put to plea in only the first docket. The defendant pleaded guilty under the Alford doctrine to reckless endangerment in the second degree and threatening in the first degree and entered a straight guilty plea to intimidation based on bigotry or bias. The following colloquy occurred, in relevant part, during the plea canvass:

"The Court: Okay. So, what they’re going to do is, they’re going to change that guilty plea on the intimidation in the third degree to the original file, everything that happened with the renters. So, with that factual understanding, what is your plea, guilty or not guilty?

"The Defendant: Guilty.

₁₆₅"The Court: All right, I’m going to ask you questions now about the plea. Any questions you don’t understand, or you need to speak to your attorney, please let me know. …

"All right, sir. Have you had enough time to speak with your lawyer about your case and your decision to plead guilty to the intimidation charge, and guilty under the Alford doctrine to the charges of reckless endangerment and threatening in the first degree?

"The Defendant: Guilty.

"The Court: Do you understand?

"The Defendant: Yes.

"The Court: My question is do you understand? Have you had enough time?

"The Defendant: Yes.

"The Court: All right. And did you review with your attorney all the facts that led to your arrest on all three of those charges?

"The Defendant: Yes.

"The Court: And you understand the day we’re talking about, that these charges led to, right?

"The Defendant: Yes.

"The Court: All right. Now, did your attorney go through with you the elements of each crime? What the state has to prove in order for someone to be found guilty of that crime?

"The Defendant: Yes.

"The Court: And do you understand how the facts recited by the prosecutor support, they meet the legal burden for each of those crimes?

"The Defendant: Yes. ₁₆₆"The Court: With respect to the intimidation, you do admit your guilt upon that charge, correct?

"The Defendant: Yes.

"The Court: And with respect to the other two charges, you don’t agree with all the factual bas[es], but you do not want to take this to trial. You do understand that the state has sufficient evidence to prosecute you and therefore you want to enter into a plea agreement, is that fair to say?

"The Defendant: Yes.

"The Court: Is that the reason you’re entering your plea under the Alford doctrine?

"The Defendant: Yes.

"The Court: Thank you. Did your attorney explain to you all the constitutional rights that you give up today, because of your plea?

"The Defendant: Yes.

"The Court: All right, and did anyone force you in any way to cause you to enter your pleas today?

"The Defendant: No.

"The Court: Are you doing so voluntarily?

"The Defendant: Yes.

"The Court: And did you take anything today that interferes with your ability to understand what you’re doing in court?

"The Defendant: No.

"The Court: Are you satisfied with your lawyer’s representation of you?

"The Defendant: Yes.

* * *

₁₆₇"The Court: All right. All right, once I accept your pleas, sir, you will not be able to take them back unless you have a valid, legal reason to do so. So, you need to be sure today that this is how you want to resolve … your case. Are you sure about that?

"The Defendant: Yes.

"The Court: All right …. Either attorney know of any reason the court should not accept the pleas?

"[The Prosecutor]: No, Your Honor.

"[Defense Counsel]: No, Your Honor. Thank you.

"The Court: The court will accept the pleas, find them knowingly and voluntarily made with the assistance of competent counsel. There is a factual basis, plea is accepted. Findings of guilty may enter." The court thereafter continued the matter to April 13, 2022, for sentencing.

After the entry of the guilty plea, but before the scheduled sentencing hearing, the defendant, through substitute counsel, filed a motion to withdraw his guilty plea.¹⁰ In his motion, he claimed that his plea was invalidly entered because (1) the court did not specifically identify the constitutional rights that the defendant waived by entering his guilty plea and, thus, conducted an inadequate plea canvass, (2) defense counsel failed to properly consult with or advise him prior to accepting a change in the plea agreement, and (3) his guilty plea to the intimidation charge was a result of ineffective assistance of counsel. The defendant requested an evidentiary hearing only as to the ineffective assistance of counsel claim.

₁₆₈On September 9, 2022, the court held a hearing on the defendant’s motion to withdraw his plea. During the hearing, the defendant, through substitute counsel, argued that his plea canvass was insufficient to establish that his plea was made knowingly, voluntarily, and intelligently. He argued that the plea canvass regarding the constitutional rights waived by the plea was too general and that "there needs to be a canvass on the specific bundle of rights that a defendant is waiving .…" The defendant additionally argued that his guilty plea to the intimidation charge was uncounseled because his prior attorney agreed to change the defendant’s plea on the intimidation charge in the middle of the hearing without first consulting with him. He argued that, given the circumstances, it was "impossible that there had been an actual discussion between [the defendant] and his attorney about what this new package offer was, as it was happening live on the record in front of the court." He last argued that defense counsel provided ineffective assistance of counsel because he had failed to explain to the defendant how the new factual basis supported the intimidation charge. He argued that there was "no indication that [he] understood … the first amendment issues that were raised by the factual basis that [w...