State v. Anthony D. ( 2016 )

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STATE OF CONNECTICUT v. ANTHONY D., SR.*
(SC 19382)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued January 22—officially released April 19, 2016
Alan Jay Black, for the appellant (defendant).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and Robin D. Krawczyk, senior assistant state’s
attorney, for the appellee (state).
Opinion
EVELEIGH, J. The sole issue in this certified appeal1
is whether, under the facts of the present case, the trial
court properly denied the oral motion of the defendant,
Anthony D., Sr., to withdraw his guilty plea due to
ineffective assistance of counsel without conducting a
further inquiry into the underlying basis of his motion.
The defendant appeals from the judgment of the Appel-
late Court affirming the trial court’s judgment of convic-
tion of sexual assault in the first degree in violation of
General Statutes § 53a-70 (a) (1), rendered following
the trial court’s denial of his motion to withdraw his
Alford plea.2 See State v. Anthony D., 151 Conn. App.
109, 110–11, 94 A.3d 669 (2014). On appeal, the defen-
dant claims that the Appellate Court improperly con-
cluded that the trial court had conducted a sufficient
inquiry concerning the defendant’s motion to withdraw.
We conclude that the Appellate Court properly deter-
mined that the defendant was not entitled to a further
inquiry into the basis of his motion to withdraw his
guilty plea under the facts of the present case and,
accordingly, we affirm the judgment of the Appellate
Court.
The opinion of the Appellate Court sets forth the
following undisputed facts and procedural history. ‘‘The
defendant was arrested and charged with several crimes
related to his sexual abuse of his girlfriend’s child, with
whom he had lived since the child was five years old.
On December 5, 2011, the evidentiary portion of the
defendant’s trial commenced, and, on that day, the state
presented six witnesses, including the then fifteen year
old victim, who testified extensively about the defen-
dant’s sexual abuse, which began when she was six
years old. On December 6, 2011, the court conducted
a hearing on the defendant’s motion to suppress his
confession to the police, in which he had admitted to
sexually abusing the victim. Following the court’s denial
of that motion, the defendant entered a guilty plea under
the Alford doctrine to one count of sexual assault in
the first degree . . . and the state agreed to enter a
nolle prosequi for each of the remaining criminal
charges. The parties agreed to a sentence of ten years
incarceration, with a five year mandatory minimum,
followed by ten years of special parole.’’ (Footnote
omitted.) Id., 111.
‘‘Before accepting the defendant’s plea, the [trial]
court . . . conducted a canvass of the defendant in
which it asked the defendant if he understood the plea
agreement, if he had discussed his plea with his attor-
ney, if he understood the nature of an Alford plea and
agreed that there was a likelihood of being found guilty
if he went to trial, if he agreed that he likely would get
a greater sentence if he proceeded to complete his trial,
if he was pleading guilty to avoid the risk of trial, and
if he understood that he was giving up his right to have
the state prove the charges against him, to confront
witnesses and to testify on his own behalf. The defen-
dant answered yes to each of these questions. Addition-
ally, the defendant acknowledged that he was not
threatened or forced to enter his plea, that no one had
made any promises to him other than the plea
agreement, and that he was acting of his own free will.
‘‘When the court explained the charge of first degree
sexual assault to the defendant, he stated that he under-
stood the charge but that he did not agree. The court
again explained the Alford plea and again asked the
defendant if he understood and still agreed that there
was a likelihood that he would get a longer sentence
if convicted after trial. The defendant said yes. The
court then explained the sex offender registration and
treatment requirements to the defendant, and he
acknowledged that he understood them. The court pro-
ceeded to ask the defendant if he knew that he would
be subject to random searches, polygraph examinations
and electronic monitoring; the defendant offered an
inaudible response, and the court asked him if he
had any questions for his attorney. The defendant
responded by saying that ‘nothing that I ask is gonna
change anything.’ The court then stated that it under-
stood the defendant’s point, but wanted to know if the
defendant had any questions that he wanted to ask his
attorney about what was occurring or about anything
of a legal nature. The defendant said no. The court
proceeded to accept the plea and to explain to the
defendant that the agreement was binding and that the
defendant could not come back and change his mind.
‘‘On December 16, 2011, the defendant returned to
the [trial] court for his sentencing hearing . . . . At the
start of the hearing, the following colloquy took place:
‘‘ ‘[Defense Counsel]: . . . I’m sorry, before we
begin, I understand that we are here for sentencing.
I’ve met with [the defendant]. He is expressing to me
concerns over the manner in which he was represented
and is asking that he be permitted to withdraw his plea.
‘‘ ‘The Court: Okay.
‘‘ ‘[Defense Counsel]: Under those circumstances, it
would be my application to the court on his behalf that
new counsel be appointed to investigate his claim.
‘‘ ‘The Court: With respect to it, the court does not
believe that there is any factual basis for it. This was
the court that took the plea. This was done in the middle
of evidence. [If the defendant] want[s] to claim at a time
after that this was ineffective [assistance] or somehow
coerc[ive] [he] can have a habeas proceeding. But,
[defense counsel], as an officer of the court, do you
know of any defect in that plea canvass that would allow
the court to, in fact, take back the plea at this time?
‘‘ ‘[Defense Counsel]: Your Honor, I think that I need
to be precise in my language. The canvass itself I think
was quite thorough.
‘‘ ‘The Court: Right. I mean, we went back and forth.
And my recollection was that I repeatedly advised him
that this was a permanent agreement and that it could
not be changed . . . .
‘‘ ‘[U]nless you can point out some defect, I am not
inclined to have him withdraw his plea, nor am I inclined
for purposes of an agreed sentencing to delay the sen-
tencing, given the fact that the complainants are here.
And . . . there was even the agreement, I believe, of
the waiver of the [presentence investigation report] at
the time. And the court wanted some record for proba-
tion; otherwise, the sentence would have been imposed
on the date of the plea.
‘‘ ‘So . . . while there may be reasons postjudgment
for a different counsel, at this time, I am not going to
grant your motion to withdraw because there is no
prejudice. This is an agreed sentence. So, unless the
court were going to give more and [defense counsel]
had to persuade me to give less to maintain the
agreement, there is no reason that [defense counsel] is
not standing next to you today for an agreed disposition.
. . . All right. The withdrawal—and I’ll just take it as
an oral motion, is denied.’
‘‘The court then heard a statement from the victim’s
mother, and the state read a letter written by the victim,
both of which explained how the defendant’s actions
had impacted their lives. Near the end of the hearing,
before imposing [the agreed upon] sentence, the court
asked the defendant if he wanted to say anything, to
which the defendant responded, ‘No.’ ’’ Id., 114–17.
The defendant appealed from the judgment of the
trial court to the Appellate Court, claiming that the
trial court improperly denied his ‘‘timely oral motion
to withdraw his plea without any type of inquiry or
evidentiary hearing as to the underlying basis of [his]
motion.’’ State v. Anthony D., supra, 151 Conn. App.
112. The Appellate Court concluded that ‘‘the defendant
presented no basis for further inquiry by the court’’ and
that, therefore, on the basis of the facts of the present
case, ‘‘the inquiry conducted by the court was suffi-
cient.’’ Id., 119. This certified appeal followed. See foot-
note 1 of this opinion.
On appeal to this court, the defendant claims that
the trial court’s failure to conduct a further inquiry into
the factual basis of his motion to withdraw his guilty
plea3 violated his constitutional rights to the effective
assistance of counsel and to due process of law as
protected by the sixth and fourteenth amendments to
the United States constitution4 and his rights under
Practice Book §§ 39-26 and 39-27.5 Specifically, the
defendant claims that the Appellate Court improperly
concluded that ‘‘the inquiry conducted by the court
following the defendant’s oral motion to withdraw his
plea was sufficient under the circumstances of this
case.’’6 Id., 112. The defendant requests that we reverse
the judgment of the Appellate Court affirming the trial
court’s judgment of conviction and that we order the
trial court to either permit the defendant to withdraw
his guilty plea or to conduct an evidentiary hearing on
his motion to withdraw his guilty plea. In response,
the state contends that the Appellate Court properly
affirmed the trial court’s denial of the defendant’s
motion to withdraw his guilty plea without first con-
ducting a further inquiry or holding an evidentiary hear-
ing on the defendant’s motion. Specifically, the state
contends that the defendant failed to state a specific
basis for his motion and that the trial court properly
disregarded defense counsel’s vague statement that the
defendant had ‘‘concerns’’ relating to his legal represen-
tation. We agree with the state and, accordingly, affirm
the judgment of the Appellate Court.
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.’’ (Internal
quotation marks omitted.) State v. Hall, 303 Conn. 527,
533, 35 A.3d 237 (2012). ‘‘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.’’ (Citation omitted;
internal quotation marks omitted.) State v. Carmelo T.,
110 Conn. App. 543, 549, 955 A.2d 687, cert. denied,
289 Conn. 950, 960 A.2d 1037 (2008). ‘‘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.’’ (Internal quotation
marks omitted.) State v. Lameirao, 135 Conn. App. 302,
320, 42 A.3d 414, cert. denied, 305 Conn. 915, 46 A.3d
171 (2012).
Motions to withdraw guilty pleas are governed by
Practice Book §§ 39-26 and 39-27. Practice Book § 39-
26 provides in relevant part: ‘‘A defendant may with-
draw his . . . plea of guilty . . . as a matter of right
until the plea has been accepted. After acceptance, the
judicial authority shall allow the defendant to withdraw
his . . . plea upon proof of one of the grounds in [Prac-
tice Book §] 39-27 . . . .’’ (Emphasis added.) Practice
Book § 39-27 (4) provides, in turn, that a defendant may
withdraw his guilty plea after acceptance if ‘‘[t]he plea
resulted from the denial of effective assistance of coun-
sel. . . .’’ ‘‘The standard for withdrawing a guilty plea
is stringent because society has a strong interest in the
finality of guilty pleas, and allowing withdrawal of pleas
not only undermines confidence in the integrity of our
judicial procedures, but also increases the volume of
judicial work, and delays and impairs the orderly admin-
istration of justice.’’ (Internal quotation marks omitted.)
United States v. Doe, 537 F.3d 204, 211 (2d Cir. 2008).
We first note that the plain language of Practice Book
§ 39-26 expressly imposes limitations upon a defen-
dant’s ability to withdraw his guilty plea after it has
been accepted. Although a defendant may withdraw his
guilty plea ‘‘as a matter of right until the plea has been
accepted,’’ after a guilty plea is accepted, the defen-
dant’s right to withdraw his plea is restricted to a narrow
window of time. Practice Book § 39-26. After accep-
tance, but before the imposition of sentence, the trial
court is required to permit a defendant to withdraw
his guilty plea under Practice Book § 39-26 only ‘‘upon
proof of one of the grounds in [Practice Book §] 39-
27.’’ Once a defendant has been sentenced, he no longer
maintains a right to withdraw his guilty plea. Practice
Book § 39-26. Furthermore, we emphasize that Practice
Book § 39-26 requires the trial court to grant the defen-
dant’s motion to withdraw his guilty plea only ‘‘upon
proof’’ of one of the grounds in Practice Book § 39-
27. (Emphasis added.) This language indicates that the
defendant bears the burden to present facts sufficient
to persuade the trial court that his guilty plea should
be withdrawn at this point in the proceedings.
We further observe that there is no language in Prac-
tice Book §§ 39-26 and 39-27 imposing an affirmative
duty upon the court to conduct an inquiry into the basis
of a defendant’s motion to withdraw his guilty plea.
‘‘The rules of statutory construction apply with equal
force to [our] rules [of practice]. . . . It is a principle
of statutory construction that a court must construe a
statute as written. . . . Courts may not by construction
supply omissions . . . or add exceptions merely
because it appears that good reasons exist for adding
them.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Lameirao, supra, 135 Conn. App. 322–23.
A review of related rules of practice reveals that when
the judges of the Superior Court intend to impose an
affirmative duty on the trial court to conduct an inquiry
of the defendant, they know how to do so. Specifically,
unlike Practice Book §§ 39-26 and 39-27, Practice Book
§§ 39-19 and 39-20,7 which govern the acceptance of a
defendant’s guilty plea, explicitly mandate that the trial
court ‘‘[address] the defendant personally . . . .’’ Prac-
tice Book § 39-20 also uses the following plain language
to order the trial court to conduct a specific inquiry:
‘‘The judicial authority shall also inquire as to whether
the defendant’s willingness to plead guilty . . . results
from prior discussions between the prosecuting author-
ity and the defendant or his or her counsel.’’ (Emphasis
added.) Therefore, it would be improper for this court
to engraft language requiring trial courts to affirmatively
investigate the basis of a defendant’s motion to with-
draw his guilty plea onto our rules of practice. The task
of creating such a requirement properly lies with the
judges of the Superior Court, not this court.8 See State
v. Obas, 320 Conn. 426, 436, 130 A.3d 252 (2016) (noting
that ‘‘[i]n the absence of any indication of the legisla-
ture’s intent concerning this issue, we cannot engraft
language onto the statute for [i]t is not the function of
the courts to enhance or supplement a statute con-
taining clearly expressed language’’ [internal quotation
marks omitted]); State v. Baker, 141 Conn. App. 669,
672, 62 A.3d 595 (noting that ‘‘ ‘[l]anguage directing the
trial court to ‘‘address the defendant personally’’ could
easily have been included in the original text of [Prac-
tice Book] § 43-10 [3] had that been the intention of the
judges of the Superior Court in adopting the rule’ ’’),
cert. denied, 308 Conn. 950, 67 A.3d 292 (2013).
In the present case, despite the fact that, at the outset
of the sentencing hearing, defense counsel informed
the trial court that the defendant had expressed to him
‘‘concerns over the manner in which he was repre-
sented,’’ at no point during the proceedings did the
defendant or his counsel cite facts or present evidence
as to how or why counsel’s representation was allegedly
ineffective. At the time he made an oral motion to with-
draw the defendant’s guilty plea, it was incumbent upon
defense counsel to provide the trial court with specific
reasons to support the motion, but he failed to do so.
The defendant offers no authority, and we know of
none, that mandates a trial court to conduct an inquiry
into the factual basis of a defendant’s motion to with-
draw his guilty plea when the defendant raises general
‘‘concerns’’ about his attorney’s representation and
proffers no facts in support of his motion. In fact, our
case law requires that a defendant ‘‘show a plausible
reason for the withdrawal’’ of a guilty plea; State v.
Hall, supra, 303 Conn. 533; and ‘‘allege and provide
facts’’ that warrant a trial court’s consideration of his
motion. State v. Carmelo T., supra, 110 Conn. App. 549;
see also State v. Crenshaw, 210 Conn. 304, 311–12,
554 A.2d 1074 (1989) (affirming trial court’s denial of
defendant’s motion to withdraw guilty plea, reasoning
that ‘‘[i]t [was] not enough for the defendant to claim
that he was told what to say by his lawyer’’ without
providing any facts or evidence in support of motion
[internal quotation marks omitted]).
The defendant further claims that the Appellate Court
improperly concluded that ‘‘[n]either the defendant nor
his attorney were denied the opportunity to present a
basis for a plea withdrawal.’’ State v. Anthony D., supra,
151 Conn. App. 119. Specifically, the defendant con-
tends that the situation at issue in the present case is
similar to the one the Appellate Court faced in State v.
Morant, 13 Conn. App. 378, 536 A.2d 605 (1988). The
defendant concedes that, unlike in Morant, the trial
court in the present case did not direct the defendant
to stop speaking. The defendant, however, asserts that
he was denied the opportunity to adequately present
the factual basis for his motion to withdraw his guilty
plea as a result of the trial court’s statement at the
sentencing hearing that if the defendant wished to
‘‘claim at a time after that this was ineffective [assis-
tance] or somehow coerc[ive]’’ he could do so in a
habeas proceeding.9 We disagree, and find Morant inap-
plicable to the present case.
In Morant, ‘‘immediately after the defendant was sen-
tenced but before the close of the sentencing proceed-
ing the defendant informed the court that he had not
entered his plea on his own ‘recognition’ ’’ and that ‘‘he
had been ‘on a pressure force to plead guilty.’ ’’ State v.
Morant, supra, 13 Conn. App. 384. When the defendant
attempted to further explain his claim to the sentencing
court, the court interrupted him, stating that he could
‘‘ ‘take that up with [his] next attorney if [he] want[ed]’ ’’
and that such a claim was ‘‘ ‘not appropriate’ ’’ at the
time. Id., 382. When the defendant attempted to speak
to the court again, ‘‘[t]he court responded with a thinly
veiled threat telling the defendant that if he heard any-
more from him the court might be sorry that it sen-
tenced him to only ten years suspended after seven.’’
(Emphasis omitted.) Id., 385. The Appellate Court con-
cluded that ‘‘the statements made by the defendant
[were] sufficient to require the holding of an evidentiary
hearing because the trial court effectively precluded the
defendant from making any more specific allegations of
fact.’’ Id.
We agree with the Appellate Court that the present
case is factually distinct from Morant. See State v.
Anthony D., supra, 151 Conn. App. 118. In the present
case, immediately following the defendant’s oral
motion, made through counsel, to withdraw his guilty
plea, the trial court specifically stated that it did ‘‘not
believe that there [was] any factual basis for’’ the
motion. The court then asked defense counsel: ‘‘[A]s
an officer of the court, do you know of any defect in
that plea canvass that would allow the court to, in fact,
take back the plea at this time?’’ We disagree with the
dissent’s suggestion that this inquiry by the trial court
‘‘limited [defense counsel] to any allegations regarding
the adequacy of the plea canvass.’’ See footnote 7 of
the dissenting opinion. These statements by the trial
court were an invitation to defense counsel to present
a factual basis for the motion and defense counsel was
free to answer the trial court’s question as he wished.
Rather than present such support, defense counsel
merely stated: ‘‘Your Honor, I think that I need to be
precise in my language. The canvass itself I think was
quite thorough.’’
Although the defendant attempts to equate the trial
court’s statement at the sentencing hearing that if the
defendant wanted to ‘‘claim at a time after that this
was ineffective [assistance] or somehow coerc[ive]’’ he
could do so in a collateral habeas proceeding to the
statements made by the court in Morant, we are not
persuaded. (Emphasis added.) In Morant, the defendant
and defense counsel repeatedly attempted to explain
the basis of the motion to withdraw, but the trial court
interrupted and affirmatively prevented them from prof-
fering specific facts in support of the motion. State v.
Morant, supra, 13 Conn. App. 382. Here, in contrast to
the situation in Morant, at no point in the proceedings
did the trial court cut short the defendant’s explanation
of the basis of his motion or direct him to stop talking.
We interpret the trial court’s statement as an attempt
to convey to the defendant that there were no facts
before it that would justify the withdrawal of his plea
at that time, but that he remained entitled to make a
claim of ineffective assistance of counsel following the
sentencing hearing.10
Moreover, we do not examine the dialogue between
defense counsel and the trial court at the sentencing
hearing in isolation, and we find the particular circum-
stances of the present case relevant to our analysis.
The record reveals that the trial court’s canvass of the
defendant at the change of plea hearing was thorough
and presented the defendant with numerous opportuni-
ties to voice any concerns he may have had with his
attorney’s representation of him, or to inform the court
that the sentence was inconsistent with the explanation
of the plea agreement that his attorney had given him.
During the plea canvass, the defendant indicated that
he had spoken to his attorney about his decision to
plead guilty and that the sentence the court was to
impose corresponded with his understanding of the plea
agreement. When asked whether anyone had forced or
threatened him to plead guilty and whether he had been
induced to plead guilty by any promises not contained
in the plea agreement, the defendant responded in the
negative. The defendant further indicated that he was
pleading guilty under the Alford doctrine because he
acknowledged that there was a chance that he would
be convicted of additional offenses and would face a
greater sentence if he decided to proceed with his trial.
The trial court specifically asked both defense counsel
and the state’s attorney whether they knew of any rea-
son why the plea should not be accepted, and they both
replied that they did not. Finally, before accepting the
defendant’s plea, the trial court asked the defendant
one last time11 whether he understood the plea
agreement, to which he replied that he did, and the trial
court also made a specific finding that the defendant
‘‘had the assistance of competent counsel.’’12 Thus,
despite the ongoing dialogue between the defendant
and the trial court during the plea canvass, the hearing
concluded without the defendant alluding to any per-
ceived flaw in the entry of his guilty plea.
The defendant nevertheless claims that the trial court
had been given notice that the defendant was dissatis-
fied with his attorney’s representation of him at the
change of plea hearing when the trial court asked
whether he had any questions for his attorney and he
responded that ‘‘nothing that I ask is gonna change
anything.’’ We are not persuaded. We find the defen-
dant’s statement to be ambiguous, at best, especially
when taken in the context of the status of his case.
Given the fact that the defendant changed his plea well
after his trial had begun, during which the victim had
testified extensively, and immediately after his motion
to suppress his incriminating statement to the police
had been denied, the defendant’s statement could rea-
sonably be interpreted as an expression of the defen-
dant’s acknowledgment of the strength of the state’s
evidence against him and the risk associated with pro-
ceeding with his trial.13 Furthermore, the record reveals
that if the defendant were dissatisfied with his attor-
ney’s representation of him, he had a clear opportunity
to articulate to the court that he was not being ade-
quately represented by his current attorney and to
request the appointment of new counsel at this point
in the plea canvass. The defendant, however, did not
avail himself of this opportunity, and we cannot expect
trial judges to be seers. See Nicks v. United States, 955
F.2d 161, 169 (2d Cir. 1992) (noting that ‘‘[i]n determin-
ing whether to hold a competency hearing, the applica-
ble standard does not contemplate that a judge be
omniscient, but simply that a trial court rule on the
objective facts of which it has knowledge’’).
Additionally, we note that, procedurally, neither the
defendant nor his attorney requested an evidentiary
hearing or moved for a continuance. The record also
discloses that the trial court continued the sentencing
until ten days after the plea hearing for purposes related
to the defendant’s parole. If the defendant had concerns
relating to his guilty plea, he had adequate time to
develop a factual basis to support his motion to with-
draw his guilty plea. The defendant, however, failed to
do so. Furthermore, when given an opportunity to speak
before the imposition of sentence, the defendant
declined to say anything.14 Thus, in light of the foregoing
circumstances, we conclude that, contrary to the dis-
sent’s claim, the defendant was afforded a reasonable
opportunity to satisfy his burden of presenting a factual
basis in support of his motion to withdraw his guilty
plea.
Finally, we recognize that the administrative need for
judicial expedition and certainty is such that trial courts
cannot be expected to inquire into the factual basis of
a defendant’s motion to withdraw his guilty plea when
the defendant has presented no specific facts in support
of the motion. To impose such an obligation would do
violence to the reasonable administrative needs of a
busy trial court, as this would, in all likelihood, provide
defendants strong incentive to make vague assertions
of an invalid plea in hopes of delaying their sentencing.
Because, as this court has previously stated, ‘‘the guilty
plea and the often concomitant plea bargain are
important components of [the] criminal justice system’’;
(internal quotation marks omitted) State v. Revelo, 256
Conn. 494, 505, 775 A.2d 260, cert. denied, 534 U.S. 1052,
122 S. Ct. 639, 151 L. Ed. 2d 558 (2001); such a practice
would undermine the ‘‘strong interest in the finality
of guilty pleas.’’ (Internal quotation marks omitted.)
United States v. Doe, supra, 537 F.3d 211; see also id.
(‘‘[t]he standard for withdrawing a guilty plea is strin-
gent because society has a strong interest in the finality
of guilty pleas, and allowing withdrawal of pleas not
only undermines confidence in the integrity of our judi-
cial procedures, but also increases the volume of judi-
cial work, and delays and impairs the orderly
administration of justice’’ [internal quotation marks
omitted]). As previously noted in this opinion, we
emphasize that, at the defendant’s request, the trial
court in the present case interrupted the trial in order to
conduct a canvass of the defendant pursuant to Practice
Book § 39-19 and to accept the defendant’s guilty plea.
See footnote 7 of this opinion; see also State v. Anthony
D., supra, 151 Conn. App. 114. At the time the defendant
changed his plea, the state had presented six witnesses,
including the then fifteen year old victim, who had been
called to testify at length about the defendant’s sexual
abuse of her. See State v. Anthony D., supra, 111. There-
fore, on the basis of the facts of the present case, for
the trial court to have granted the defendant’s motion
to withdraw his guilty plea without any factual support
for the motion on the record would have greatly
‘‘delay[ed] and impair[ed] the orderly administration of
justice.’’ United States v. Doe, supra, 211.
We conclude that, without specific concerns or facts
before it to justify the withdrawal of the defendant’s
guilty plea at sentencing, the trial court did not abuse
its discretion in denying the defendant’s motion to with-
draw his guilty plea without conducting a further inquiry
into the underlying basis of the defendant’s motion.
Accordingly, the Appellate Court properly concluded
that ‘‘the defendant presented no basis for further
inquiry by the court.’’ State v. Anthony D., supra, 151
Conn. App. 119.
The judgment of the Appellate Court is affirmed.
In this opinion PALMER, ZARELLA and ESPINOSA,
Js., concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual assault and the crime of risk of injury to a child, we decline
to use the defendant’s full name or to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
1
We granted the defendant’s petition for certification to appeal limited
to the following issue: ‘‘Did the Appellate Court properly affirm the trial
court’s decision to deny the defendant’s oral motion to withdraw his plea
due to ineffective assistance of counsel without conducting a further
inquiry?’’ State v. Anthony D., 314 Conn. 918, 100 A.3d 407 (2014).
2
‘‘Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed.
2d 162 (1970), a criminal defendant is not required to admit his guilt . . .
but consents to being punished as if he were guilty to avoid the risk of
proceeding to trial. . . . A guilty plea under the Alford doctrine is a judicial
oxymoron in that the defendant does not admit guilt but acknowledges that
the state’s evidence against him is so strong that he is prepared to accept
the entry of a guilty plea nevertheless.’’ (Internal quotation marks omitted.)
State v. Pentland, 296 Conn. 305, 308 n.3, 994 A.2d 147 (2010).
3
We note that although defense counsel also made a motion for appoint-
ment of new counsel, the trial court did not rule on this motion and the
defendant did not raise this issue on appeal.
4
The defendant also raises due process and ineffective assistance of
counsel claims pursuant to article first, § 8, of the constitution of Connecti-
cut. ‘‘Because the defendant has not set forth a separate analysis of his
claim[s] under the state constitution or asserted that our state constitution
affords him greater protections with regard to his claim[s] than its federal
counterpart, we confine our analysis to the defendant’s federal constitutional
claim[s].’’ State v. Roger B., 297 Conn. 607, 611 n.7, 999 A.2d 752 (2010).
5
Practice Book § 39-26 provides: ‘‘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.’’
Practice Book § 39-27 provides: ‘‘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
imposed 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.’’
6
The defendant further claims that the trial court’s failure to advise the
defendant during the plea canvass that he ‘‘ha[d] the right to plead not guilty
or to persist in that plea’’ in violation of Practice Book § 39-19 (5) rendered
his plea involuntary. We disagree. ‘‘This court has held repeatedly that . . .
§ 39-19 requires only substantial compliance.’’ (Footnote omitted.) State v.
Ocasio, 253 Conn. 375, 378, 751 A.2d 825 (2000). The trial court in the present
case substantially complied with the requirement of § 39-19 (5) when it
explained the nature of the Alford doctrine and asked the defendant whether
he acknowledged that there was a likelihood that he would be convicted
of additional offenses and would face a greater sentence if he decided to
proceed with his trial. Furthermore, the trial court specifically told the
defendant that by pleading guilty he was waiving certain constitutional
rights, including the right to plead not guilty and to have the state prove
his guilt beyond a reasonable doubt.
7
Practice Book § 39-19 provides: ‘‘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 sen-
tences 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.’’
Practice Book § 39-20 provides: ‘‘The judicial authority shall not 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 willing-
ness to plead guilty or nolo contendere results from prior discussions
between the prosecuting authority and the defendant or his or her counsel.’’
8
The dissent notes that ‘‘the majority’s reasoning that a trial court has
no affirmative obligation to inquire as to the basis for the claim makes little
sense in the present case, in which the trial court did affirmatively inquire
as to the basis for a claim of a defective plea, even though that claim had
not been made . . . .’’ See footnote 7 of the dissenting opinion. As previously
noted in this opinion, in the present case, the trial court did not have an
affirmative obligation to inquire as to whether there was any defect in the
plea canvass that would invalidate the guilty plea. However, because Practice
Book § 39-19 sets forth inquiries that the trial court is required to make
before accepting a defendant’s guilty plea, it was reasonable for the trial
court to question whether there was a problem with its canvass of the
defendant. See State v. Lage, 141 Conn. App. 510, 526, 61 A.3d 581 (2013)
(noting that ‘‘[e]xcept for those inquiries which are constitutionally man-
dated or are required by our rules; [Practice Book §§ 39-19 through 39-21];
the court is not obliged to assume the role of the defendant’s counselor’’
[internal quotation marks omitted]). The fact that the trial court took it
upon itself to inquire as to the sufficiency of the plea canvass does not
change the fact that it was not affirmatively required to inquire into the
basis of the defendant’s motion to withdraw his guilty plea.
9
The dissent concludes that ‘‘the trial court reasoned, mistakenly, that a
claim of ineffective assistance was not a proper basis for a plea withdrawal.’’
We find no support in the record for finding that the trial court misunderstood
Practice Book § 39-27. The dissent seems to base its understanding that the
trial court was mistaken on the fact that the trial court said that the defendant
could make a claim of ineffective assistance of counsel in a collateral habeas
proceeding and that such a statement demonstrates that the trial court
believed that a habeas proceeding was the only proper forum for a claim
of ineffective assistance. This is a logical leap that the majority will not make.
It is too far a stretch to assume the trial court was under a misimpression of
the grounds for withdrawal contained in § 39-27 based on its aforemen-
tioned comment.
Moreover, even if the trial court had been under a misimpression that a
claim of ineffective assistance of counsel was not a proper basis for the
withdrawal of a guilty plea, this would not change the fact that, in the
present case, the only basis presented by defense counsel in support of the
defendant’s motion to withdraw his guilty plea was a conclusory statement
that the defendant had ‘‘concerns’’ relating to his legal representation. As
the dissent acknowledges, the case law of this state makes clear that the
burden is upon the defendant to ‘‘allege and provide facts which justify
permitting him to withdraw his plea under [Practice Book § 39-27].’’ (Internal
quotation marks omitted.) State v. Carmelo T., supra, 110 Conn. App. 549.
The defendant failed to present such facts or any evidence in support of
his motion to the trial court. Notably, defense counsel did not cite to or
reference § 39-27 (4), or any rule of practice for that matter, when he moved
to withdraw the defendant’s guilty plea. The failure of the defendant and
defense counsel to present a factual basis for the motion was the sole reason
for the trial court’s denial of the defendant’s motion to withdraw his guilty
plea. Thus, even if we were to assume that the trial court had been mistaken
as to the allowable grounds for withdrawal of a guilty plea, the deficiencies
in the defendant’s motion remain.
10
The dissent asserts that the trial court in the present case ‘‘foreclosed
the defendant from providing any specific allegations of fact to support the
claim.’’ (Emphasis omitted.) See footnote 9 of the dissenting opinion. As
we have explained previously in this opinion, unlike in Morant, there is
no evidence in the record that the trial court affirmatively precluded the
defendant or defense counsel from stating a factual basis in support of the
motion to withdraw the guilty plea. Defense counsel had the opportunity
at this point in the proceedings to explain to the trial court that, while there
was no defect in the plea canvass, the defendant had specific facts to support
his claim that he had received ineffective assistance of counsel. Defense
counsel failed to provide the trial court with those facts or make any further
statement as to the defendant’s ‘‘concerns.’’
11
Throughout the entire colloquy between the trial court and the defen-
dant, the trial court repeatedly asked whether the defendant understood
the charge and the terms of the plea agreement and the defendant affirmed
four times that he did. When the defendant indicated that he did not under-
stand that, as a result of his conviction, he would be required to register
as a sex offender for his lifetime, the trial court gave a thorough explanation
of what that requirement and sex offender parole entailed.
12
We note that the defendant was canvassed and sentenced by the same
trial court judge. Consequently, the sentencing court was cognizant of the
defendant’s demeanor and responses to the court’s inquiries during the plea
proceeding. Furthermore, the trial court was also familiar with defense
counsel’s demeanor and representation of the defendant.
13
We further note that the procedural posture of the defendant’s case
supports the trial court’s denial of the defendant’s motion to withdraw his
guilty plea. Given the status of the case and the lack of an asserted factual
basis for the defendant’s motion to withdraw, it was reasonable for the trial
court to infer that the motion was made as a dilatory tactic rather than for
the purpose of obtaining a trial.
14
The dissent claims that the defendant’s failure to present a factual basis
for his motion at this point in the proceedings should not be held against
him because ‘‘the defendant very reasonably could have thought that the
ineffective assistance of counsel matter was closed’’ at the time. See footnote
6 of the dissenting opinion. Although that may have been the case, we note
that the defendant failed to express his dissatisfaction with defense counsel
on the record, both before and after the trial court’s denial of his motion
to withdraw his guilty plea.