State v. Young

186 Conn.App. 770

201 A.3d 439

STATE of Connecticut

v.Mark YOUNG

AC 40581

Appellate Court of Connecticut.

Argued September 17, 2018

Officially released January 1, 2019

Jonathan R. Sills, Hartford, for the appellant (defendant).

Margaret Gaffney Radionovas, senior assistant state's attorney, with whom were Bonnie R. Bentley, senior assistant state's attorney, and, on the brief, Anne F. Mahoney, state's attorney, for the appellee (state).

Lavine, Sheldon and Norcott, Js.

SHELDON, J.

The defendant, Mark Young, appeals from the judgment of conviction rendered after his guilty pleas to charges of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a (a) and evading responsibility in the operation of a motor vehicle in violation of General Statutes § 14-224 (b) (3), and to previously having been convicted of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of § 14-227a (g). The defendant claims that: (1) the court abused its discretion by denying his motion to withdraw and vacate guilty pleas pursuant to Practice Book §§ 39-26 and 39-27 because there was no factual basis for his plea of guilty to § 14-227a (a) and (g) for operating a motor vehicle while under the influence as a second offender; and (2) the court imposed an illegal sentence upon him for operating a motor vehicle while under the influence as a second offender that exceeded the statutory maximum for that offense, and did so in an illegal manner because it relied on materially inaccurate information concerning his criminal record. We affirm the judgment of the trial court in denying the defendant's motion to withdraw, but conclude that the sentence imposed on him exceeds the statutory maximum for the offense of operating a motor vehicle while under the influence as a second offender. Accordingly, we vacate the defendant's sentences on all charges and remand this case to the trial court for resentencing under the terms of the original plea agreement, in accordance with the law.

The following facts and procedural history are relevant to our resolution of the defendant's claims. On March 24, 2016, the Connecticut State Police arrested the defendant for operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of § 14-227a (a), evading responsibility in the operation of a motor vehicle in violation of § 14-224 (b) (3),¹ speeding in violation of General Statutes § 14-219 (c) (2)² and operating a motor vehicle without minimum insurance in violation of General Statutes § 14-213b.³ On October 11, 2016, the state filed a part B Information pursuant to Practice Book § 36-14,⁴ alleging that "[o]n ... [October 19, 2011], in the [Rhode Island] Superior Court ... [in] Providence, the defendant ... was convicted of the offense of driving under the influence in violation of ... [Rhode Island] General Laws." At a hearing before the trial court on that same date, the defendant indicated that he wished to withdraw his prior pleas of not guilty and enter pleas of guilty under an agreement with the state. The following exchange ensued:

"The Court: Okay. You understand that the prosecutors here in Danielson Superior Court charge that you've been formerly convicted, having committed the offense of operating—driving under the influence on October, 19, 2011, in Rhode Island Superior Court in Providence in violation of the Rhode Island general statutes. You understand that.

"The Defendant: Yes.

"The Court: Okay.

"The Clerk: Mark Young, on or about March 24th of 2016, you're charged with operating under the influence in violation of 14-227a. How do you plead, guilty or not guilty?

"The Defendant: Guilty.

"The Clerk: And on that charge, you're being charged by the second part information as a subsequent offender for operating under the influence in that you were previously convicted of this charge in Rhode Island Superior Court on October 19, 2011. To being a second offender for operating under the influence how do you plead, guilty or not guilty?

"The Defendant: Guilty.

"The Clerk: Anything else?

"[The Prosecutor]: Evading.

"The Clerk: And on or about March 24 of 2016, you're charged with evading responsibility in violation of § 14-224 (b) (3). How do you plead, guilty or not guilty?

"The Defendant: Guilty."

The state then recited the following facts regarding the incident that led to the defendant's arrest: "On March 24, 2016, in the late evening hours, this defendant was clocked at a hundred and three miles per hour in a fifty mile an hour zone on Route 32 in Windham. He was pulled over. [The] [o]fficer detected an odor of alcohol. When he spoke with this defendant, who had originally switched places with his passenger, but then admitted that he was actually the driver—[he] failed to perform [the] standard field sobriety test; admitted consuming alcohol; [and] refused chemical tests. It was learned during this time that the defendant had been involved just a short time earlier in a motor vehicle incident where he struck another vehicle from behind causing minor damage, no injuries, but then fled the scene. We have an agreement in this matter. I would note that he had previously been convicted of operating under the influence in Rhode Island in 2011." The court proceeded with the plea canvass, during which it asked the defendant, "And you heard the state's attorney recite the facts which led to your arrest on the date in question; also a prior conviction. Is that all pretty much what happened?" The defendant answered in the affirmative.

The court accepted the pleas and the state informed the court that the plea agreement called for "a total effective sentence of three years, execution suspended after five months—120 days of which are the mandatory minimum for ... operating under the influence—two years' probation and a $1,000 fine with numerous special conditions ...." The court then set a date for sentencing and ordered a presentence investigation. At the next scheduled court date on December 14, 2016, new counsel for the defendant entered his appearance and filed a motion to withdraw the guilty pleas the defendant had entered on October 11, 2016.

In his motion to withdraw, the defendant argued that there was no factual basis for his guilty plea to the charge of operating while under the influence as a second offender, as alleged in the part B information, because (1) his 2011 Rhode Island case did not result in a conviction, (2) even if his Rhode Island case did result in a conviction, that conviction was expunged on December 19, 2016, between the date of his guilty pleas in this case and the date of sentencing, so that it could no longer be considered a conviction for sentence enhancement purposes under General Statutes § 14-227a (g), and (3) the essential elements of operating under the influence while under the Rhode Island statute under which he was allegedly convicted, Rhode Island General Laws § 31-27-2,⁵ were not substantially the same as those of § 14-227a (a) (1) or (2), as required for a conviction as a second offender based upon a prior out-of-state conviction pursuant to § 14-227a (g).⁶

After a hearing on the motion to withdraw, the court found that (1) the disposition of the defendant's 2011 Rhode Island case was in fact a conviction, (2) the later expungement of the defendant's Rhode Island conviction did not negate the fact that he had a prior conviction for operating while under the influence at the time of the conduct underlying his present conviction, and (3) the essential elements of the statute under which the defendant was convicted in Rhode Island, § 31-27-2, are substantially the same as those of § 14-227a (a) (1) and (2).⁷ Accordingly, the court denied the defendant's motion to withdraw. On June 26, 2017, the court sentenced the defendant as follows: on the charge of operating a motor vehicle while under the influence of liquor or drugs as a second offender, the defendant was sentenced to a term of three years of incarceration, execution suspended after five months, 120 days of which was a mandatory minimum, followed by two years of probation; and on the charge of evading responsibility, he was sentenced to a concurrent term of one year incarceration, execution suspended after thirty days, followed by two years of probation.⁸ This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the trial court improperly denied his motion to withdraw because his guilty plea to operating a motor vehicle while under the influence as a second offender was not supported by a factual basis, and thus it was not entered voluntarily or intelligently or in compliance with the rules of practice. Specifically, he contends that there was no factual basis that he had a prior conviction for operating while under the influence to support his guilty plea to operating while under the influence as a second offender in violation of § 14-227a (a) and (g). We disagree.

"As a preliminary matter, we set forth the applicable standard of review. It is well established that [t]he burden is always on the defendant 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 ].... Whether such proof is made is a question for the court in its sound discretion, and a denial of permission to withdraw is reversible only if that discretion has been abused.... In determining whether the trial court [has] abused its discretion, this court must make every reasonable presumption in favor of [the correctness of] its action.... Our review of a trial court's exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did....

"Motions to...