State v. Yusef L.

207 Conn.App. 475

262 A.3d 1017

STATE of Connecticut

v.YUSEF L.^*

AC 43612

Appellate Court of Connecticut.

Argued May 25, 2021

Officially released September 14, 2021

Raymond L. Durelli, assigned counsel, for the appellant (defendant).

Christopher W. Iverson, certified legal intern, with whom, on the brief, was Michele C. Lukban, senior assistant state's attorney, Rocky Hill, CT, for the appellee (state).

Elgo, Cradle and DiPentima, Js.

DiPENTIMA, J.

The defendant, Yusef L., appeals from the judgment revoking his probation and the judgments of conviction, rendered after his admission to a violation of his probation in violation of General Statutes § 53a-32 and after pleas of guilty, pursuant to the Alford doctrine,¹ of violation of a protective order in violation of General Statutes § 53a-223 and strangulation in the second degree in violation of General Statutes § 53a-64bb. On appeal, the defendant claims that the trial court improperly denied his motion to withdraw his guilty pleas because they were not made knowingly, voluntarily, and intelligently. Specifically, the defendant claims that the court (1) failed to determine whether he fully understood the maximum possible sentence that could result from consecutive sentences, (2) incorrectly advised him that a mandatory minimum sentence applied, and (3) failed to determine whether he fully understood that he had the right to plead not guilty and the right to the assistance of counsel.² We affirm the judgments of the trial court.

The following facts and procedural history are relevant to this appeal. On January 11, 2019, the defendant, while represented by counsel, admitted that he violated his probation and entered guilty pleas pursuant to North Carolina v. Alford , 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), to the charges of violation of a protective order and strangulation in the second degree with an agreed on sentence of "four years and two days to serve, followed by 2184 days of special parole." After conducting a plea canvass, the court, Doyle , J. , found that the defendant's admission and pleas were made knowingly and voluntarily, and accepted each of them. The court then ordered a presentence investigation report and continued the case for sentencing.

On January 12, 2019, the defendant sent a letter to the court seeking to withdraw his guilty pleas because he was "confused [as] to what [he] plead[ed] guilty to." On January 14, 2019, the defendant sent a second letter to the court, again stating that he wanted to withdraw his guilty pleas, and stating that he was not satisfied with the representation that he had received and that he was prepared to go trial. The court construed these letters as a motion by the defendant to withdraw his guilty pleas. On March 18, 2019, the defendant and his counsel appeared before the court. At that time, the defendant stated that he "was confused" and "didn't know what was going on" during the January 11, 2019 plea hearing. The court ordered a copy of the transcript from the January 11, 2019 hearing and informed the defendant that they would discuss its contents at a hearing on April 1, 2019.

At the April 1, 2019 hearing, the court stated to the defendant: "I reviewed the transcript [from the January 11, 2019 plea hearing] and I think it's pretty clear to me that, at the time, you understood everything that I asked you based on your responses. In the letter you seem to be more interested in just—you're not happy with the sentence, which I get, but that's not a basis for changing a plea. So what I'm inclined to do is I'll give you a copy of the transcript and I'll give you a new date to look it over." The defendant persisted in his claim that he did not understand what had happened at the January 11, 2019 plea hearing, and the court responded that the defendant would receive a copy of the transcript so that he could "tell [the court] where [he] ... [didn't] understand ...."

On April 26, 2019, the defendant sent a third letter to the court, this time requesting to represent himself in future proceedings. At a hearing on May 22, 2019, concerning his request for self-representation and after a lengthy canvass of the defendant, the court found: "[T]he defendant has knowingly and intelligently waived his right to counsel ... he wants to represent himself or get a private attorney.³ I'm going to continue the case one month to see if he gets a private attorney ... [then] we are going forward on [the defendant's] motion to vacate if [he] wants to pursue it, or we are going to be going to sentencing." (Footnote added.) The court also ordered that the defendant's former attorney, Christopher J. Molyneaux, act as standby counsel for the defendant if he did not retain a private attorney.

On June 26, 2019, the self-represented defendant, with standby counsel present, argued that he should be permitted to withdraw his guilty pleas because the sentence "exceed[ed] the specified agreement [to] which [he] pleaded ...." Specifically, the defendant stated that he understood that he was accepting five and one-half years of special parole, and that he did not agree to "shy of six years" of special parole. The defendant further argued that he should be permitted to withdraw his guilty pleas because the court never used the word " ‘consecutive’ " when it canvassed him with regard to the charges to which he was pleading guilty. The defendant gave no other reasons to withdraw his plea. The court denied the defendant's motion to withdraw his guilty plea, stating: "I don't think that you've provided a sufficient factual basis that requires a further evidentiary hearing. You've basically made some vague and conclusory allegations that you weren't sure about the sentence and exceeding it. It does not exceed the proposed agreement. You did not carry your burden to put forth sufficient facts that would warrant a further hearing ... to address your motion to withdraw [your guilty plea]."

On July 9, 2019, after reviewing the presentence investigation report, the court sentenced the defendant as agreed. The defendant then appealed from the judgments of conviction, claiming that the court improperly denied his motion to withdraw his guilty pleas. Additional facts will be set forth as necessary.

"Our standard of review for the trial court's decision on a motion to withdraw a guilty plea under Practice Book § 39-27 is abuse of discretion. ... After a guilty plea is accepted but before the imposition of sentence the court is obligated to permit withdrawal upon proof of one of the grounds in [ § 39-27 ]. An evidentiary hearing is not required 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 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. For the purposes of determining whether to hold an evidentiary hearing, the court should ordinarily assume any specific allegation of fact to be true. If such allegations furnish a basis for withdrawal 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. ... We further [note] that the burden [is] on the defendant to show a plausible reason for the withdrawal." (Citations omitted; emphasis omitted; internal quotation marks omitted.) State v. Warner , 165 Conn. App. 185, 191–92, 138 A.3d 463 (2016).

I

The defendant's first claim challenging the court's denial of his motion to withdraw his guilty pleas is that the court failed to determine whether he fully understood the maximum possible sentence that could result from consecutive sentences.⁴ Specifically, the defendant argues that "[n]othing in the record suggests [that] [he] was aware of the actual sentencing possibilities," and that "[t]here was no substantial compliance with Practice Book § 39-19 (4)."⁵ The state counters that the record shows substantial compliance with § 39-19 (4), and that the defendant was aware of the maximum possible sentence that would result from consecutive sentences. We agree with the state.

It is well established that "[a] defendant can voluntarily and understandingly waive [his] rights without literal compliance with the prophylactic safeguards of Practice Book §§ [ 39 -19 and 39-20]. Therefore ... precise compliance with the provisions [of §§ 39-19 and 39-20 ] is not constitutionally required." (Citations omitted.) State v. Badgett , 200 Conn. 412, 418, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). Accordingly, "[o]ur courts repeatedly have held that only substantial compliance is required when warning the defendant of the direct consequences of a ... plea pursuant to ... § 39-19 in order to ensure that the plea is voluntary pursuant to ... § 39-20." (Internal quotation marks omitted.) State v. Hanson , 117 Conn. App. 436, 444, 979 A.2d 576 (2009), cert. denied, 295 Conn. 907, 989 A.2d 604 (2010), cert. denied, 562 U.S. 986, 131 S. Ct. 425, 178 L. Ed. 2d 331 (2010).

"[W]hen determining whether there has been substantial compliance with Practice Book § 39-19 (4), we must conduct a two part inquiry. Our first inquiry is to determine whether the court accepted the defendant's pleas without first determining whether he was aware of and understood the maximum possible sentence to which he was exposed. ... Next, if we conclude that the court failed to determine whether the defendant was aware of and understood the maximum possible sentence, we examine the record to determine whether, despite the court's failure, he nevertheless had actual knowledge of the maximum possible consequences of his pleas. ... If either prong is satisfied, the pleas were accepted with...