State v. Simpson , 169 Conn. App. 168 ( 2016 )

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STATE OF CONNECTICUT v. EARL SIMPSON
(AC 38643)
Beach, Keller and Bear, Js.
Argued September 9—officially released November 1, 2016
(Appeal from Superior Court, judicial district of New
Haven, Clifford, J.)
Deren Manasevit, assigned counsel, for the appel-
lant (defendant).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Michael Dearington, former
state’s attorney, and Brett R. Aiello, special deputy
assistant state’s attorney, for the appellee (state).
Opinion
KELLER, J. Following the trial court’s acceptance of
his guilty plea under the Alford doctrine,1 the defendant,
Earl Simpson, was convicted of murder in violation of
General Statutes §§ 53a-54a (a) and 53a-8.2 The defen-
dant now appeals from the judgment, claiming that:
(1) on the basis of facts and circumstances that were
apparent to the court at the time of the plea and which
undermined a finding that the defendant understood
the nature of the charge at issue, the court abused its
discretion by denying the defendant’s motion to with-
draw his plea prior to sentencing and, in the alternative,
abused its discretion by failing to conduct an eviden-
tiary hearing on the motion; (2) the court violated the
defendant’s right to counsel by failing to address the
grievances that the defendant raised to the court con-
cerning his attorney and, in the alternative, abused its
discretion by failing to inquire with respect to such
complaints; and (3) the court abused its discretion by
accepting the plea and that its acceptance of the plea
violated the defendant’s right to due process. We agree
with the defendant that the court improperly failed to
conduct an evidentiary hearing with respect to his
motion to withdraw his plea and failed to undertake a
necessary inquiry with respect to his complaints con-
cerning his attorney. Accordingly, we reverse the judg-
ment and remand the case to the trial court for further
proceedings with respect to those issues.
The following undisputed facts, which may be
gleaned from the record of the underlying proceedings,
are relevant to the claims raised in the present appeal.
The defendant, represented by counsel, entered an
Alford plea in this case on September 19, 2014. The
state, by way of a long form information, filed on June
29, 2012,3 charged the defendant in count one with fel-
ony murder under General Statutes §§ 53a-54c and 53a-
8, in count two with murder as an accessory under
§§ 53a-54a (a) and 53a-8, and in count three with rob-
bery or attempt to commit robbery in the first degree
in violation of General Statutes § 53a-134 (a) (1). Count
two stated: ‘‘And the [State’s Attorney for the Judicial
District of New Haven] further accuses [the defendant]
of Murder and charges that at the City of New Haven,
on or about the 9th day of July, 2011, at approximately
6:00 a.m., in the area of Howard and Putnam Streets,
the said [defendant] did, with intent to cause the death
of another person, to wit: John Claude James, did shoot
such person and caused the death of such person, said
conduct being in violation of [§] 53a-54a (a) and 53a-8
of the Connecticut General Statutes.’’
At the plea canvass, the prosecutor stated that it was
his understanding that the defendant was prepared to
enter an Alford plea ‘‘on the second count of the infor-
mation charging murder.’’ The court clerk,4 addressing
the defendant, stated in relevant part: ‘‘[Y]ou’ve been
charged in the second count with murder in violation
of Section 53a-54a of the Connecticut General Statutes.
How do you plead, guilty or not guilty?’’ The defendant
replied, ‘‘Guilty.’’ The court acknowledged that the plea
was made under the Alford doctrine. Thereafter, the
defendant admitted that he had violated his probation
in violation of General Statutes § 53a-32.
The prosecutor addressed the court to set forth the
factual basis underlying the plea with respect to the
murder count, as follows: ‘‘[W]ith respect to the plea
on the second count of murder, the state is prepared
to prove the following facts: On July 9, 2011, at about
6 p.m., New Haven police officers responded to the
area of Howard Avenue and Putnam Street based upon
a report of shots fired. They located the body of John
Claude James, age twenty-six. It was evident to them
that he had been shot several times. A later autopsy
determined that he had been shot five times in the back
area. All but one bullet had exited the body. They were
never located.
‘‘During the investigation, a witness stated she was
in her apartment nearby. Moments after hearing the
shots, Cody Franklin and the defendant . . . ran into
her apartment. Franklin said that he had just shot some-
one. The witness also said [the defendant] offered her
weed to say that he and Franklin had not been in her
apartment. [The defendant] then called his sister, Isis
Hargrove, asking her to pick them up. Franklin and the
defendant . . . were a short time later seen getting into
Isis’ car and leaving the area. Also, a witness told police
he saw Franklin shoot Mr. James and [the defendant]
was with Franklin at the time.
‘‘The crime scene investigation resulted in the loca-
tion of six shell casings found in the immediate area
where witnesses saw the shots being fired. A ballistics
examination disclosed that five casings had been
ejected from the same gun, while the sixth casing was
ejected from a different gun. Such [evidence] is clearly
consistent with there being two shooters. Another wit-
ness told police that he saw Franklin and [the defen-
dant] together just before the shooting and saw Mr.
Franklin fire shots, but he did not admit that he had
seen [the defendant] fire any shots.
‘‘On May 19, 2014, the defendant . . . was being
interviewed by a member of the State’s Attorney’s Office
in Waterbury in connection with another shooting.
When asked about the previous shooting of John Claude
James, the defendant . . . admitted that he was one
of the shooters.’’
Thereafter, the court canvassed the defendant with
respect to his pleas. During the canvass, the defendant
stated that he was not under the influence of any alco-
hol, drugs or medication; he had had a sufficient oppor-
tunity prior to the plea canvass to discuss his pleas
with counsel; he was satisfied with his counsel’s advice;
he was entering his ‘‘guilty plea’’ and his ‘‘probation
plea’’ voluntarily; and nobody was forcing or threaten-
ing him to enter the pleas. The defendant stated that
he understood the rights he was giving up by entering
his pleas, including his right against compulsory self-
incrimination, his right to a trial by jury, and his right
to confront his accusers.
The following colloquy between the court and the
defendant ensued:
‘‘The Court: A person violates their probation when
they are on probation and they violate the terms of it,
and you could have gotten up to three years on that.
Do you understand that?
‘‘[The Defendant]: Yes.
‘‘The Court: Do you agree you violated your pro-
bation?
‘‘[The Defendant]: Yes.
‘‘The Court: And on that, I’m going to terminate [pro-
bation] at the time of sentencing. On the crime of mur-
der, the state would have to prove that with the intent
to cause the death of another person, you caused the
death of such person or of a third person, and that is
punishable by up to sixty years in prison, twenty-five
years at the minimum or nonsuspendable portion. Do
you understand that?
‘‘[The Defendant]: Yes.’’
The court proceeded to ask the defendant if he under-
stood the nature of an Alford plea and if he understood
the sentence to which he was exposed as well as the
agreement in place with the state for a sentence of
thirty-two and one-half years imprisonment, with a
twenty-five year minimum sentence. The defendant
stated that he understood these matters and that no
additional promises had been made to him with respect
to the pleas. The court stated: ‘‘Once I accept these
pleas, you can’t change your mind later on unless there’s
some valid legal reason. Do you understand that?’’ The
defendant replied affirmatively. At the conclusion of
the canvass, the defendant stated that he had under-
stood the questions directed to him by the court and
that there was nothing that he wished to raise to the
court or his attorney prior to the court’s acceptance of
the pleas.
The court accepted the defendant’s pleas, finding that
they were ‘‘understandably made with the assistance of
competent counsel.’’ The court found that the defendant
was ‘‘guilty’’ and that he had violated his probation. The
court then continued the matter to a later date.
By handwritten letter dated October 27, 2014, and
addressed to the court, the defendant stated that he
wanted to withdraw his plea and that he desired a
new attorney. In relevant part, the letter, signed by the
defendant, stated: ‘‘I request to withdraw my guilty plea.
I have a legitimate claim. I am not guilty of murder. I
am claiming ineffective counsel. I was not explained
all elements of the crime of murder. There was no
testimony at Cody Franklin’s trial that I assisted, aided,
or conspiracy. There was no intent on my part. The
mere fact that I did not assist and help Cody Franklin
from the testimony of the state witnesses is enough to
have the charges against me dismissed.
‘‘Had my attorney investigated and told me all the
facts I wouldn’t have pled guilty to a charge that I didn’t
commit. I felt pressured to take the plea because I was
told I had ‘no chance’ of winning [at] trial. Individuals
trying to say I confessed to things I did not. I didn’t
sign anything or state anything on the record. (Absent
this so-called confession.)
‘‘I need a new attorney and I need for him to request
a ‘Motion to Vacate’ and a ‘evidentiary hearing.’ My
counsel also failed to file a ‘Motion to Dismiss’ the
murder charges after the Cody Franklin trial. Please
look into this matter.’’
Additionally, the defendant wrote: ‘‘My attorney
never told me the difference between accessory after
the fact and obstruction of justice, and aiding and abet-
ting. I never and did not encourage, and or facilitate or
participate in the [crime] by the testimony of the state
witness. I had ‘no’ knowledge that anyone was going
to kill anyone. I request a new attorney and to withdraw
my plea. Also a evidence hearing on this matter. Ineffec-
tive assistance and evidence hearing. Please withdraw
my plea. I couldn’t make an intelligent decision. Please
look into this matter.’’
On December 4, 2014, through counsel, the defendant
filed a motion to withdraw his guilty plea pursuant to
Practice Book §§ 39-26 and 39-27. In relevant part, the
motion stated: ‘‘In subsequent written and oral commu-
nications between the defendant and undersigned coun-
sel, the defendant has indicated he did not possess
knowledge or fully understand the sentence that could
be imposed or the consequences thereto at the time
he entered the guilty plea.’’ The state filed a written
opposition to the defendant’s motion. Therein, the state
asserted that the transcript of the plea canvass of Sep-
tember 19, 2014, reflected that, in compliance with Prac-
tice Book § 39-19, the court addressed the defendant
with regard to the mandatory minimum sentence and
maximum possible sentence on the charge. The state
directed the court’s attention to the portion of the tran-
script in which the court indicated, and the defendant
verbally acknowledged, that the total sentence expo-
sure on the charges of murder and violation of probation
was sixty-three years’ incarceration, with twenty-five
years being nonsuspendable. Moreover, the state
argued, the transcript reflected that the defendant
understood that, pursuant to the plea agreement, he
would serve a minimum term of incarceration of twenty-
five years and a maximum term of incarceration of
thirty-two and one-half years. The state argued that the
plea transcript reflected that the defendant understood
the sentence to be imposed, that the defendant’s motion
should be denied, and that an evidentiary hearing on
the motion was not necessary.
By a second handwritten letter, dated December 8,
2014, and addressed to the court, the defendant
renewed his request to withdraw his plea and for new
counsel. The letter, signed by the defendant, stated in
relevant part: ‘‘[T]here are a few things I would like to
bring to your attention. First and foremost, I was in
(special aid) in school and didn’t have enough time to
be fully explained anything about my charges. I just
came and it was on the table. (Accept or reject.) My
lawyer never explained the full conditions to . . . such
charge I was supposed to plea to in which any evidence
points to me as an accessory to. I never had a legal
visit or anything. I would really like to take this plea
back. My lawyer talked me into something I didn’t want
to do. I was confused. When I came to court I’ve told
him this personally and that I would like a new lawyer.
(Ineffective counsel.) He didn’t put any motions in to
try to get any hearings when I asked for some. When
I was explained about my charge after the fact I told
him to withdraw my plea. He wants to wait until after
the last minute going against my wishes. This is my life
on the line and I would like to withdraw and go to
trial. Because I’m not responsible for this charge that’s
against me. Please I would really appreciate it a lot.
Also requesting a new lawyer. I told my old lawyer,
Thomas Farver, [that] I wanted to request a new one
and I don’t think he put it in and went around what I
said. I have [a] court [appearance] on December 19,
2014 that is supposed to be a sentencing date. I really
hope you grant the motion for my plea to be
withdrawn.’’
The defendant, represented by counsel, appeared in
court on December 19, 2014, for sentencing. At the
beginning of the hearing, the court stated: ‘‘I know the
defendant had sent some letters to me which seemed to
indicate that, possibly, he was interested in withdrawing
his plea.’’5 The court did not inquire into the defendant’s
claim that he had not been apprised of the nature of
the charge to which he had pleaded guilty. The court,
however, referred to the motion to withdraw that was
filed on the defendant’s behalf by his attorney. The
following colloquy then occurred:
‘‘The Court: So, I guess I should . . . ask [the defen-
dant] . . . is he still pursuing a motion to withdraw
this plea? . . .
‘‘[The Defendant]: Mm-hm. Yes.
‘‘The Court: All right. And the basis I just read that
your lawyer put in [the motion to withdraw the plea],
is that . . . you did not possess knowledge or fully
understand the sentence or the consequences thereto?
‘‘[The Defendant]: Yes.
‘‘The Court: All right. Do you want . . . to explain
it any more than that? Why is it you . . . want to with-
draw your plea?
‘‘[The Defendant]: Why do I want to—because I feel
like everything wasn’t explained. It was, like, as soon
as I got to court, boom, it’s just like . . . take this right
now. You go to trial, you losing. It was like I was forced
to take it. I felt like I was forced to take the plea.
‘‘The Court: And who forced you to take the plea;
the system, you mean, or the court or—
‘‘[The Defendant]: No, my lawyer.
‘‘The Court: Your lawyer, how did he force you?
‘‘[The Defendant]: It’s like, he told me right there, if
I don’t take it . . . I’m gonna lose; that’s what he said.
‘‘The Court: But . . . you know, this case was pre-
tried on numerous occasions. As a matter of fact, I
know even back in June of 2014 there actually was a
different offer, a higher offer of thirty-five years, and
then I think that was retried on August 7th, according
to [my] notes, and then on September 19th there was
a change in it down to thirty-two and a half years, and
you came upstairs that day and I asked you numerous
questions, and what you’re saying here now is not some-
thing you said then.
‘‘[The Defendant]: I wasn’t aware of no thirty-five
years.
‘‘The Court: No. Well, the day you entered the plea
[agreement] was thirty-two and a half.
‘‘[The Defendant]: Yeah.
‘‘The Court: All right. I mean, there were previous
offers. You never knew an offer before that that was
higher than thirty-two and a half?
‘‘[The Defendant]: No.
‘‘The Court: All right. Well, you certainly knew the
thirty-two and a half year sentence because you entered
the plea to it that day, on September 19th, correct?
‘‘[The Defendant]: Yes.
‘‘The Court: All right. I mean, it is a matter of, just,
you’re changing your mind now, kind of like buyer’s
remorse, or did you think about it longer and think
you just, you know, maybe you didn’t make the right
decision; is that what it is?
‘‘[The Defendant]: Yes.’’6
The court then referred to the transcript from the
plea canvass on September 19, 2014. The court asked
the defendant if he remembered the court having asked
him a series of questions at that earlier proceeding. The
defendant replied, ‘‘Yeah. Yeah, somewhat.’’ The court
asked the defendant if he recalled answering that he
was not under the influence of alcohol, drugs, or medi-
cation and that he had had a sufficient opportunity to
discuss the plea with his attorney. The defendant
replied, ‘‘No.’’ The court asked the defendant if he
recalled answering that he was satisfied with his attor-
ney’s advice concerning the pleas, that he was entering
the pleas voluntarily, and that nobody was forcing or
threatening him to enter the pleas. The defendant
replied, ‘‘Yeah, some of it.’’ Additionally, the court asked
the defendant if he recalled answering that no additional
promises had been made to him, and that he understood
that he would not be permitted to change his mind and
withdraw his pleas absent a valid legal reason to do so.
The defendant replied, ‘‘Yes.’’
The following colloquy then ensued:
‘‘The Court: In other words, so the transcript seems
to bear out that a lot of questions I asked you was, did
you need more time with your lawyer, are you satisfied
with your lawyer’s advice, is anybody forcing you to
do this. And the transcript reflects, and so does my
recollection, that you . . . answered everything appro-
priately at that time. And as you’ve just answered me
today, it sounds like you just thought . . . longer over
it since that day and you really just want to change
your mind. Is that right?
‘‘[The Defendant]: Yes.’’
When asked if he wished to be heard, the defendant’s
attorney stated: ‘‘I don’t have anything to add other than
the representations in the motion as reasons my client
gave me that he wish[ed] to withdraw the plea. And I
don’t see, in the transcript [of the plea canvass], any
technical reasons that would be supported by the Prac-
tice Book.’’ When afforded an opportunity to address
the court with respect to the motion to withdraw the
plea, the prosecutor added, in addition to his written
objection, that the defendant had prior experience in
the criminal justice system.
The court stated: ‘‘The problem I’m having . . . and
I know it was a big decision, and I know we’re talking,
obviously . . . about a . . . very long prison sen-
tence, I certainly understand that, but, you know, there
is no right to have a plea withdrawn after the plea has
been entered and [the defendant has been] canvassed
by the court. And the burden of proof is certainly on
you to show a plausible reason for the withdrawal of
that. And the problem is that . . . a lot of the state-
ments that are in the written motion are very conclusory
type of statements. There aren’t a lot of facts or meat
to it, so to speak.
‘‘And it certainly sounds like . . . from what you’ve
indicated . . . it’s more of a change of heart after think-
ing about it longer while waiting to be sentenced, by
your own admission here today. Because the transcript
[of the plea canvass] clearly bears [that] out and, cer-
tainly, so does my recollection, that you certainly
appeared to understand what was going on. You indi-
cated no force was being used or no threats to you,
that your . . . plea was voluntary.
‘‘So, certainly, based on what you said here today,
based on the transcript of the plea proceedings, I don’t
think there’s . . . a valid reason to withdraw your plea
at this time or even to give you . . . any type of an
evidentiary hearing. So, I’m going to deny the request.’’
After the court asked counsel whether there were
any issues regarding the presentence investigation
report, the defendant’s attorney stated in relevant part:
‘‘My client has read the entire [presentence investiga-
tion] report this morning. . . . [H]e had one concern
and that is that . . . and I think that we’ve addressed
[it] . . . because as the offense charge it does say . . .
murder and it was aiding and abetting—under the aiding
and abetting provision. And so I think that should be
noted for the record.’’ The following exchange between
the court and defense counsel followed:
‘‘The Court: Well . . . are you looking for a formal
correction to the presentence report or, just, you’re
making a—
‘‘[The Defendant’s Attorney]: I think if the judge
would just put—I mean, that’s your understanding as
well?
‘‘The Court: That is my—oh, definitely. I agree
with you.
‘‘[The Defendant’s Attorney]: Yes. I don’t think we
need a formal correction to it.
‘‘The Court: Okay.
‘‘[The Defendant’s Attorney]: But it was aiding and
abetting.
‘‘The Court: All right. So noted.’’
Thereafter, the victim’s mother addressed the court
and the defendant exercised his right of allocution. He
stated that, although he did ‘‘not take [the victim’s] life
or plan to do so,’’ he nonetheless had ‘‘blood on [his]
hands’’ and apologized to the victim’s family. The court
vacated the defendant’s probation and imposed a sen-
tence of thirty-two and one-half years of imprisonment,
twenty-five years of which is nonsuspendable. This
appeal followed. Additional facts will be set forth as
necessary.
I
First, we address the defendant’s claim that the court
abused its discretion by denying the defendant’s motion
to withdraw his plea prior to sentencing and, in the
alternative, abused its discretion by failing to conduct
an evidentiary hearing on the motion. We agree with
the defendant that, under the unique circumstances in
the present case, the court abused its discretion by
failing to conduct an evidentiary hearing on the motion
to withdraw the plea.
We observe that, ‘‘[u]nder [the Alford doctrine], 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 never-
theless. . . . The entry of a guilty plea under the Alford
doctrine carries the same consequences as a standard
plea of guilty. By entering such a plea, a defendant may
be able to avoid formally admitting guilt at the time of
sentencing, but he nonetheless consents to being
treated as if he were guilty with no assurances to the
contrary.’’ (Citations omitted; emphasis omitted; inter-
nal quotation marks omitted.) State v. Faraday, 268
Conn. 174, 204–205, 842 A.2d 567 (2004). ‘‘ ‘A guilty
plea under the Alford doctrine is . . . the functional
equivalent [to an unconditional] plea of nolo conten-
dere’ . . . State v. Palmer, 196 Conn. 157, 169 n.3, 491
A.2d 1075 (1985); which itself ‘has the same legal effect
as a plea of guilty on all further proceedings within the
indictment. . . . The only practical difference is that
the plea of nolo contendere may not be used against
the defendant as an admission in a subsequent criminal
or civil case.’ . . . Groton v. United Steelworkers of
America, 254 Conn. 35, 49, 757 A.2d 501 (2000).’’ State
v. Faraday, supra, 205 n.17.
‘‘The United States Supreme Court has held that for
the acceptance of a guilty plea to comport with due
process, the plea must be voluntarily and knowingly
entered. Boykin v. Alabama, 395 U.S. 238, 243–44, 89
S. Ct. 1709, 23 L. Ed. 2d 274 (1969). Boykin set forth
three federal constitutional rights of which a defendant
must be cognizant prior to entering a guilty plea: (1)
the privilege against compulsory self-incrimination; (2)
the right to trial by jury; and (3) the right to confront
one’s own accusers. Id., 243. Since a guilty plea consti-
tutes a waiver of these constitutional rights, a reviewing
court cannot presume from a silent record that a defen-
dant knowingly waived these three rights. State v.
Badgett, 200 Conn. 412, 419–20, 512 A.2d 160, cert.
denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373
(1986).’’ State v. Carter, 243 Conn. 392, 397, 703 A.2d
763 (1997).
‘‘To be valid, guilty pleas must be made knowingly
and voluntarily. . . . [T]he trial court judge bears an
affirmative, nondelegable duty to clarify the terms of
a plea agreement. [U]nless a plea of guilty is made
knowingly and voluntarily, it has been obtained in viola-
tion of due process and is therefore voidable. . . .
When a defendant pleads guilty, he waives important
fundamental constitutional rights, including the privi-
lege against self-incrimination, the right to a jury trial,
and the right to confront his accusers. . . . These con-
siderations demand the utmost solicitude of which
courts are capable in canvassing the matter with the
accused to make sure he has a full understanding of
what the plea connotes and its consequences. . . .
‘‘We, therefore, require the trial court affirmatively
to clarify on the record that the defendant’s guilty plea
was made intelligently and voluntarily. . . . In order
to make a knowing and voluntary choice, the defendant
must possess an understanding of the law in relation
to the facts, including all relevant information concern-
ing the sentence. . . . The defendant must also be
aware of the actual value of any commitments made
to him by the court . . . because a realistic assessment
of such promises is essential in making an intelligent
decision to plead guilty. . . . A determination as to
whether a plea has been knowingly and voluntarily
entered entails an examination of all of the relevant
circumstances. . . . [W]e conduct a plenary review of
the circumstances surrounding [a] plea to determine
if it was knowing and voluntary.’’ (Citation omitted;
internal quotation marks omitted.) Almedina v. Com-
missioner of Correction, 109 Conn. App. 1, 5–6, 950 A.2d
553, cert. denied, 289 Conn. 925, 958 A.2d 150 (2008).
Practice Book §§ 39-19 and 39-20, which encompass
the constitutional essentials for the acceptance of a
plea of guilty; see State v. Reid, 277 Conn. 764, 780, 894
A.2d 963 (2006); apply to the acceptance of Alford pleas.
See, e.g., State v. Carmelo T., 110 Conn. App. 543, 553,
955 A.2d 687, cert. denied, 289 Conn. 950, 960 A.2d 1037
(2008); State v. Drakeford, 54 Conn. App. 240, 249, 736
A.2d 912 (1999). Practice Book § 39-197 provides in rele-
vant part: ‘‘The judicial authority shall not accept the
plea without first addressing the defendant personally
and determining that he or she understands: (1) The
nature of the charge to which the plea is offered . . . .’’
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 willingness to
plead guilty or nolo contendere results from prior dis-
cussions between the prosecuting authority and the
defendant or his or her counsel.’’ ‘‘While the federal
constitution requires that the record of the plea canvass
indicate the voluntariness of any waiver of the three
core constitutional rights delineated in Boykin, it does
not require that the trial court go beyond these constitu-
tional minima. . . . A defendant can voluntarily and
understandingly waive these rights without literal com-
pliance with the prophylactic safeguards of Practice
Book [§§ 39-19 and 39-20]. Therefore . . . precise com-
pliance with the provisions [of the Practice Book] is not
constitutionally required.’’ (Citations omitted; internal
quotation marks omitted.) State v. Ducharme, 134
Conn. App. 595, 605–606, 39 A.3d 1183, cert. denied,
305 Conn. 905, 44 A.3d 181 (2012).
With respect to a defendant’s right to withdraw his
or her guilty plea, we observe 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.’’ (Citations omitted; internal quotation marks omit-
ted.) State v. Anthony D., 320 Conn. 842, 850, 134 A.3d
219 (2016). Practice Book § 39-26 provides: ‘‘A defen-
dant 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 [Practice Book §] 39-
27.8 A defendant may not withdraw his or her plea after
the conclusion of the proceeding at which the sentence
was imposed.’’ (Footnote added.)
‘‘[T]here is no language in Practice 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.’’ State v. Anthony
D., supra, 320 Conn. 851. Faced with a request for an
evidentiary hearing related to a motion to withdraw a
guilty plea, the court must exercise its discretion by
carefully evaluating the request in light of the allega-
tions made in the motion or otherwise brought to the
court’s attention. ‘‘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 purpose of determining whether to hold an
evidentiary hearing, the court should ordinarily assume
any specific allegations of fact to be true. If such allega-
tions 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 informa-
tion contained in the court file, then an evidentiary
hearing is required. . . .
‘‘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. . . . The burden is always on the defen-
dant 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].’’ (Citations omitted; emphasis in original;
internal quotation marks omitted.) State v. Salas, 92
Conn. App. 541, 544–45, 885 A.2d 1258 (2005); see also
State v. Johnson, 253 Conn. 1, 50–51; 751 A.2d 298
(2000); State v. Warner, 165 Conn. App. 185, 192, 138
A.3d 463 (2016).
Before reaching the merits of the defendant’s claim
that the court erred by failing to conduct an evidentiary
hearing related to his motion to withdraw the plea, we
observe that the claim is reviewable on appeal. The
claim is adequately briefed before this court and,
although it is not necessary to a determination that the
claim is reviewable on appeal; see State v. Safford, 22
Conn. App. 531, 534, 578 A.2d 152, cert. denied, 216
Conn. 823, 581 A.2d 1057 (1990); the record reflects
that the defendant requested an evidentiary hearing
related to his motion. Specifically, in the first of his
handwritten letters that were mailed to and, apparently,
considered by the court, the defendant specifically
requested an ‘‘evidentiary hearing,’’ and in the second
letter he referred to the fact that, in connection with
his desire ‘‘to take this plea back,’’ his counsel had
performed deficiently because, in part, he failed ‘‘to try
to get any hearings . . . .’’
Turning to the merits of the claim, we begin by look-
ing to the factual allegations made by the defendant in
his letters to the court. Both letters convey the defen-
dant’s confusion with respect to the nature of the charge
to which he had pleaded guilty under the Alford doc-
trine. In relevant part, the defendant stated in his first
letter that all of the elements of ‘‘the crime of murder’’
had not been explained to him, and he expressed his
belief that there was no evidence that he had the neces-
sary intent, or that he had assisted, aided, or had been
part of a conspiracy. The defendant stated: ‘‘My attorney
never told me the difference between accessory after
the fact and obstruction of justice, and aiding and abet-
ting. I never and did not encourage, aid or facilitate or
participate in the [crime] . . . .’’ In his second letter,
the defendant stated in relevant part: ‘‘My lawyer never
explained the full conditions to the such charge I was
suppose[d] to plea to in which any evidence paints to
me as an accessory to.’’ These specific representations
concerning the defendant’s understanding of the nature
of the charge, while not perfect models of clarity, are
not conclusory, vague, or oblique. Thus, for purposes
of the present claim, we presume their truthfulness.
Additionally, these representations furnish a basis to
withdraw the plea under Practice Book § 39-27. Under
§ 39-27 (2), a court may allow a defendant to withdraw
his or her plea of guilty after its acceptance if ‘‘it was
entered without knowledge of the nature of the
charge . . . .’’
We next turn to an examination of whether the defen-
dant’s representations are conclusively refuted by the
record of the plea proceedings and other information
contained in the court file. The record reflects that the
defendant was convicted of murder, as an accessory,
in violation of §§ 53a-54a (a) and 53a-8, the crime
charged in the state’s long form information filed on
June 29, 2012.9 At the time of the plea canvass, however,
the court clerk informed the defendant that he had been
charged with murder in violation of § 53a-54a, and the
defendant pleaded guilty under the Alford doctrine to
that charge. During its canvass, the court did not refer
to accessorial liability.10 With respect to the nature of
the charge, the court did not explain the charge in terms
of accessorial liability, but stated as follows: ‘‘On the
crime of murder, the state would have to prove that
with the intent to cause the death of another person,
you caused the death of such person or of a third per-
son . . . .’’
In addition to a lack of any reference to the elements
of accessorial liability during the plea canvass, the pros-
ecutor at the time of the plea canvass set forth a factual
basis for the plea that differed from the factual basis
set forth in the state’s long form information.11 In the
information, the state alleged that the defendant,
intending to cause the victim’s death, shot and caused
the victim’s death. During his recitation of the facts at
the time of the plea canvass, which occurred after the
defendant entered his guilty plea, the prosecutor stated
in relevant part that the victim had been shot five times.
Then, the prosecutor focused on the defendant’s activi-
ties following the shooting. The prosecutor stated that
the defendant and Franklin, who admitted that he ‘‘just
shot someone,’’ hid in the apartment of a nearby wit-
ness. The defendant offered the witness ‘‘weed’’ in an
effort to induce her to say that he and Franklin had not
been there. Then, the defendant called his sister, who
then arrived at the scene and drove the defendant and
Franklin away. The prosecutor stated that a witness
observed Franklin, who was with the defendant, shoot
the victim. Yet another witness observed the defendant
and Franklin just prior to the shooting and observed
Franklin, but not the defendant, fire gunshots.
The prosecutor, however, also referred to the state’s
belief that there were two shooters, and referred to
physical evidence, shell casings recovered from the
crime scene and the results of ballistics testing, that
supported such a theory of the crime. Finally, the prose-
cutor stated that, during an interview concerning an
unrelated shooting, the defendant ‘‘admitted that he
was one of the shooters.’’ Although the prosecutor
appears to have set forth a factual basis for the crime
that supported both principal and accessory liability,
unlike the facts set forth in the information, the factual
basis set forth by the prosecutor did not include any
reference to the defendant’s intent.
In an examination of the plea proceedings, we
observe that the court did not ask the defendant if his
attorney had explained the elements of murder as an
accessory or if his attorney had discussed his guilt as
an accessory. Instead, as relevant to the issue of
whether the defendant had been apprised of the nature
of the charge, the court asked the defendant if he ‘‘had
enough time on previous dates and today’s date to dis-
cuss what you’re doing here today with your attorney,’’
and whether the defendant was satisfied with his attor-
ney’s advice.
At the time of sentencing, when the court addressed
the defendant’s motion to withdraw his plea, the court
referred to the letters that the defendant had addressed
to the court. The court also acknowledged that it had
reviewed a transcript from the plea canvass, a copy of
which the state attached to its written opposition to
the defendant’s motion to withdraw his plea. The factual
representations in the letters, viewed in light of the file
and the plea canvass, neither of which conclusively
refuted the defendant’s representations, sufficiently
raised an issue concerning the defendant’s understand-
ing of the nature of the charge. Moreover, the events
that transpired at the sentencing proceeding did not
refute the defendant’s representations. At the sentenc-
ing proceeding, the court did not specifically address
the defendant’s concerns as set forth in his letters, with
respect to his understanding of the nature of the charge.
The court did not ask the defendant if he understood
the elements of murder under a theory of accessorial
liability and did not ask him or his attorney if those
elements had been explained to the defendant before
he entered his plea. The defendant’s attorney, who bore
the responsibility of having advised his client, did not
make any representations concerning the issue. If any-
thing, the inquiry posed by the defendant’s attorney to
the court prior to the imposition of sentence, set forth
previously in this opinion, reflects a degree of confusion
on his part with regard to the offense to which the
defendant had pleaded guilty.
In light of the foregoing, we conclude that the court
abused its discretion in failing to conduct the eviden-
tiary hearing requested by the defendant to determine
whether the defendant understood the nature of the
charge to which he pleaded guilty under the Alford
doctrine.
The state raises several arguments contrary to the
defendant’s claim, none of which we find to be persua-
sive. First, the state essentially argues that it is of no
consequence whether the defendant understood that he
had been charged under a theory of accessorial liability.
The state argues that ‘‘the substantive crime charged
in this case was murder [and] the court sufficiently
apprised the defendant of the nature of the charge by
explaining that he was charged with murder, in violation
of General Statutes § 53a-54a.’’ Additionally, the state
draws our attention to the well settled principle that
‘‘[a] defendant may be convicted as an accessory, even
if charged only as a principal, as long as the evidence
presented at trial was sufficient to establish accessorial
conduct.’’ (Internal quotation marks omitted.) State v.
Hines, 89 Conn. App. 440, 453, 873 A.2d 1042, cert.
denied, 275 Conn. 904, 882 A.2d 678 (2005).
We are hesitant to agree with the state’s seemingly
broad proposition that whether a defendant is being
convicted as a principal or an accessory is not relevant
to his understanding of the nature of the charge. This
court has explained that ‘‘[a]lthough a defendant may
plead guilty to a crime without distinguishing whether
he was a principal or an accessory, once he has chosen
to plead guilty as an accessory and the court has
accepted that choice by accepting that plea, he can be
found guilty of only that crime and is entitled to a
judgment, sentence and mittimus that reflects that
crime. His decision to plead as an accessory has to be
influenced by his belief that he will be found guilty as
an accessory. . . . Due process requires that the defen-
dant know the specific charge to which he is pleading.
A jury may be polled as to the basis of its verdict to
determine whether the defendant was convicted as a
principal or an accessory. . . . If this is so, a defendant
must be able to plead as an accessory or a principal.’’
(Citations omitted.) State v. Gamble, 27 Conn. App. 1,
11–12, 604 A.2d 366, cert. denied, 222 Conn. 901, 606
A.2d 1329 (1992). Due process concerns require that a
defendant intelligently enter into a plea; our Supreme
Court has explained that ‘‘[d]ue process requires that
a plea be entered voluntarily and intelligently. . . .
Because every valid guilty plea must be demonstrably
voluntary, knowing and intelligent, we require the
record to disclose an act that represents a knowing
choice among available alternative courses of action,
an understanding of the law in relation to the facts,
and sufficient awareness of the relevant circumstances
and likely consequences of the plea. . . . A determina-
tion as to whether a plea has been knowingly and volun-
tarily entered entails an examination of all of the
relevant circumstances.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) State v. Cren-
shaw, 210 Conn. 304, 309, 554 A.2d 1074 (1989). It is
difficult to comprehend how a defendant might be said
to have understood the relationship between the law
and the facts if he is unaware that his liability is accesso-
rial in nature. A defendant’s understanding of something
as basic and central to the prosecution as the state’s
theory of liability must be viewed as integral to his
assessment of his chances of prevailing at trial. Thus,
such theory is a very practical consideration in terms
of deciding whether to accept a plea agreement.
Second, the state argues that, in the absence of a
positive suggestion to the contrary, the court may have
presumed in the present case that counsel explained
the nature of the charge to the defendant. ‘‘Defense
counsel generally is presumed to have informed the
defendant of the charges against him. [E]ven without
an express statement by the court of the elements of
the crimes charged, it is appropriate to presume that
in most cases defense counsel routinely explain the
nature of the offense in sufficient detail to give the
accused notice of what he is being asked to admit. . . .
[U]nless a record contains some positive suggestion
that the defendant’s attorney had not informed the
defendant of the elements of the crimes to which he
was pleading guilty, the normal presumption applies.
. . . [W]e have never held that the judge must himself
explain the elements of each charge to the defendant
on the record. Rather, the constitutional prerequisites
of a valid plea may be satisfied where the record accu-
rately reflects that the nature of the charge and the
elements of the crime were explained to the defendant
by his own, competent counsel.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
State v. Barnwell, 102 Conn. App. 255, 259–60, 925 A.2d
1106 (2007).
We disagree with the state that the record supports
a finding that the customary presumption applies in the
present case. As stated previously in this opinion, the
court did not inquire of the defendant with respect to
accessorial liability; the court did not inquire whether
his attorney had explained the nature of the charge,
and neither the defendant nor his attorney made any
representations with regard to this specific issue. At
the plea canvass, the court clerk informed the defendant
that he was charged with murder under § 53a-54a, and
the defendant entered a plea of guilty to that charge.12
Moreover, at the sentencing proceeding, the defendant’s
attorney asked the court if it was the court’s understand-
ing that the defendant had entered his plea under a
theory of accessorial liability or as a principal. More-
over, in his letters to the court, the defendant expressly
stated that his counsel had acted ineffectively and that
he did not understand the nature of the charge.
Third, the state argues that the factual basis for the
plea, in which the prosecutor referred to the two
shooter theory, as well as the state’s operative long
form information, which contained a reference to the
accessorial liability statute, ‘‘clearly provided notice to
the defendant that he was charged with committing the
crime of murder based on accessorial liability.’’ In light
of the fact that the clerk did not refer to § 53a-8 when
putting the defendant to plea, the fact that the factual
basis set forth by the prosecutor reasonably might have
been interpreted to encompass both principal and
accessorial theories of liability,13 and the lack of any
reference to accessorial liability during the court’s plea
canvass, we are not persuaded by the state’s argument.
Finally, the state argues that the claim should fail on
the basis of what transpired when the court addressed
the defendant just prior to sentencing with respect to
his motion to withdraw the plea. The state points out
that, at that time, the defendant merely expressed his
belief that ‘‘everything’’ had not been explained to him
and that he felt like he had been pressured to enter the
plea. The state argues that these assertions were belied
by the transcript of the plea canvass. Also, the state
points out that, when the court addressed the defendant
with respect to his motion to withdraw the plea, the
defendant agreed with the court’s assessment that the
defendant’s motion to withdraw merely reflected the
fact that the defendant wanted to change his mind with
respect to his plea. The state argues, correctly, that the
defendant’s mere remorse with respect to the plea was
not a valid basis upon which to grant the motion. See
Practice Book § 39-27. Additionally, the state points to
the fact that defense counsel’s written motion raised
an issue concerning the defendant’s understanding of
the sentence that could be imposed or the consequences
of the plea and that, at the sentencing hearing, defense
counsel stated that he did not wish to add anything
to these representations and that he believed that the
transcript of the plea canvass did not support the grant-
ing of the motion.
At the time that the court considered the defendant’s
motion to withdraw the plea, it had reviewed both the
defendant’s handwritten letters, in which the defendant
unambiguously requested permission to withdraw his
plea, as well as the written motion to withdraw that
was filed on the defendant’s behalf by his trial counsel.
Although the court referred to the letters, it appears
from our review of the proceeding that the court did
not inquire about their substance, particularly the repre-
sentations made therein concerning the defendant’s
confusion with respect to the nature of the charge.
Instead, the inquiries directed at the defendant by the
court appear to have been related to the limited ground
set forth in the written motion to withdraw that related
to whether the defendant possessed knowledge of the
sentence that could be imposed or the consequences
of his plea. At the sentencing hearing, when the court
afforded the defendant an opportunity to address the
court with respect to his motion to withdraw, the defen-
dant did not raise with specificity all of the grounds
that he set forth in his letters.
We do not dismiss lightly the state’s arguments con-
cerning what transpired at the sentencing proceeding.
Certainly, in distilling the issues before it related to the
defendant’s motion, the court was entitled to rely on
arguments and representations made at the sentencing
hearing. Yet, we are mindful that the defendant is not
an attorney and, in evaluating his communications to
the court, it is not reasonable to expect him to engage
the court with either the skill or precision of an attorney.
In his letters to the court, he raised questions about his
understanding of the nature of the charge at the time
of the plea, stated that his trial counsel was ineffective,
and requested permission to withdraw his plea. The
transcript of the plea canvass, in which the defendant
was not put to plea consistent with the state’s long
form information and which did not address any issues
related to accessorial liability, did not refute the defen-
dant’s representations in this regard. Also, among the
statements that the defendant made at the sentencing
proceeding, the defendant stated, in general terms, that
‘‘everything wasn’t explained’’ to him by counsel at the
time of the plea.
Under these circumstances, we are reluctant to con-
clude that the defendant abandoned the specific repre-
sentation made in his letters that he was not advised
with respect to the elements of the crime, specifically
‘‘aiding and abetting,’’ and, thus, that he did not under-
stand the nature of the charge. Nor are we persuaded
that the court reasonably could have relied solely on
the representations of defense counsel, whom the
defendant claimed was ineffective, in determining the
basis of the defendant’s motion, which, due to an appar-
ent breakdown in the attorney-client relationship, the
defendant presented to the court by means of his hand-
written letters as well as the written motion filed by
defense counsel.
For the foregoing reasons, we conclude that it was
an abuse of the court’s discretion not to grant the defen-
dant’s request for an evidentiary hearing. The proper
remedy is to reverse the judgment and remand the case
to the trial court for further proceedings, specifically,
to conduct an evidentiary hearing on the defendant’s
motion for the purpose of determining whether the
defendant’s plea was knowing and voluntary and, thus,
obtained in conformance with his due process rights.14
II
Next, we address the defendant’s claim that the court
violated his right to counsel by failing to address the
grievances that he raised to the court concerning his
attorney and, in the alternative, abused its discretion
by failing to inquire with respect to such complaints.
We agree with the defendant that the court abused its
discretion by failing to inquire into his complaints in
this regard.
As explained previously in this opinion, in the defen-
dant’s two handwritten letters, which the court
acknowledged that it had received prior to the imposi-
tion of sentence, he asked the court for permission to
withdraw his plea, explained in some detail why he
believed that his counsel was ineffective, and requested
the appointment of new counsel. Among the specific
complaints concerning counsel’s representation made
by the defendant, he alleged that counsel had failed to
explain the nature of the crime, failed to investigate
the facts of the case, and pressured him into entering his
plea. Additionally, the defendant suggested that counsel
failed to bring to the court’s attention his request for
new counsel and had failed to bring to the court’s atten-
tion his request for an evidentiary hearing related to
his request to withdraw his plea. The record does not
reflect that the defendant made any prior complaints
with respect to his counsel’s representation.
At the time that the court considered the defendant’s
motion to withdraw his plea, the court did not in any
manner address the defendant’s grievances that led to
his request for the appointment of new counsel. The
defendant argues that the court neither afforded him
an opportunity to ‘‘voice his grievances [concerning his
attorney] or to make a record of his complaints,’’ and
effectively ignored both his stated substantial griev-
ances, which were not contradicted by the record, as
well as his request for replacement counsel. The state
argues that, even if we were to assume that the defen-
dant’s letters were sufficient to preserve the present
claim, no further inquiry into the defendant’s grievances
was necessary in this case and that because the defen-
dant did not furnish the court with a substantial reason
for providing new counsel, the court properly denied,
albeit implicitly, the defendant’s request for substi-
tute counsel.
‘‘Where a defendant voices a seemingly substantial
complaint about counsel, the court should inquire into
the reasons for dissatisfaction. . . . If [t]he defendant’s
eruptions at trial, however, fell short of a seemingly
substantial complaint, we have held that the trial court
need not inquire into the reasons underlying the defen-
dant’s dissatisfaction with his attorney. . . . The
extent of an inquiry into a complaint concerning defense
counsel lies within the discretion of the trial court. . . .
Moreover, the defendant’s right to be represented by
counsel does not grant a defendant an unlimited oppor-
tunity to obtain alternate counsel on the eve of trial . . .
and may not be used to achieve delay in the absence of
exceptional circumstances. . . . The appellate scru-
tiny of the trial court’s inquiry into complaints concern-
ing adequacy of counsel must be tempered by the timing
of such complaints.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Robinson, 227 Conn. 711,
725, 631 A.2d 288 (1993). ‘‘[A] trial court has a responsi-
bility to inquire into and to evaluate carefully all sub-
stantial complaints concerning court-appointed counsel
. . . . The extent of that inquiry, however, lies within
the discretion of the trial court. . . . A trial court does
not abuse its discretion by failing to make further
inquiry where the [respondent] has already had an ade-
quate opportunity to inform the trial court of his com-
plaints.’’ (Citation omitted; internal quotation marks
omitted.) State v. Arroyo, 284 Conn. 597, 644, 935 A.2d
975 (2007).
As a first step in our analysis of whether the court
conducted a sufficient inquiry, we conclude that the
defendant’s letters sufficiently alerted the court to a
seemingly substantial complaint concerning a break-
down in the relationship between the defendant and his
counsel. In his letters, the defendant stated, in general
terms, that his counsel was ineffective and that he
wanted a new attorney. He also stated, in more specific
terms, that he felt like he had been pressured at the
time of the plea and that he was not satisfied with his
attorney’s advice concerning the plea and, in particular,
advice concerning the elements of the crime and
whether the evidence supported a finding that he was
an accessory to any crime. The defendant also stated
that following the plea proceeding and against his
wishes, counsel did not request an evidentiary hearing
with respect to his motion to withdraw his plea or
file a motion for the appointment of new counsel. The
defendant did not state anything at the sentencing pro-
ceeding that contradicted these representations con-
cerning the attorney-client relationship or might
reasonably be viewed as an abandonment of his request
for the appointment of new counsel. Consistent with
his letters, he stated at the hearing that he believed that
‘‘everything wasn’t explained’’ and that he had been
pressured into entering his plea.
Next we turn to an examination of what inquiry, if
any, the court undertook. In the context of ruling on
the defendant’s motion to withdraw his plea, the court
did not set forth any findings of fact related to the
performance of trial counsel. The court did not specifi-
cally address, let alone deny, the defendant’s motion
for new counsel. The court did not invite the defendant
or his counsel to address the matter. The state urges
us to find that the court ‘‘implicitly’’ made findings con-
trary to the defendant’s complaints, yet there is no basis
on which to infer that the court considered and rejected
the defendant’s complaints, which were raised for the
first time in his letters. Moreover, we do not agree with
the state that, in light of what transpired at the plea
canvass, the court reasonably rejected the defendant’s
grievances on their face. Although the record of the
plea canvass reflects that, at that time, the defendant
believed that he had been afforded an ample opportu-
nity to discuss his plea with his attorney and that he
was satisfied with that advice, the record is silent with
respect to whether counsel adequately explained to the
defendant the accessorial nature of the offense to which
the defendant pleaded guilty.15 In light of all of the
circumstances, it appears that the court failed to con-
duct any type of inquiry into the defendant’s grievances
or his request for the appointment of a new attorney.
In light of the defendant’s seemingly substantive com-
plaints, which were raised for the first time in his letters,
the court abused its discretion by not inquiring further.
The proper remedy, therefore, is for the court, on
remand, to conduct an adequate inquiry into the defen-
dant’s complaints and his request for new counsel, and
to rule on the request.16
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
1
See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
2
Also, the defendant admitted that, by his criminal conduct, he had vio-
lated the terms of his probation.
3
Although the record reflects that the long form information was filed
with the clerk of the New Haven judicial district on June 29, 2012, there is
no corresponding entry on the court docket sheet and the record reflects
that on September 19, 2012, the court marked off a motion for essential
facts filed by the defendant under the belief that the state had not yet filed
a long form information. A prior information in the court file, dated June
22, 2012, charged the defendant with murder, but not as an accessory, in
the second count.
4
In putting the defendant to plea, it is not clear from the record whether
the clerk was reading from the state’s long form information that was filed
on June 29, 2012, or from a prior information that charged him with murder
but omitted reference to the accessorial liability statute.
5
We observe that the court referred to its receipt of the defendant’s letters,
which appear in the court file. The record does not reflect that the letters
were returned to the defendant or that the court in any manner indicated
that it had refused to consider them.
6
Viewing the court’s colloquy with the defendant in its entirety, we do
not interpret this answer to the court’s leading compound question as an
admission on the part of the defendant that he merely had changed his
mind. Before answering the court’s question, the defendant had advised the
court that he did not find that ‘‘everything’’ had been sufficiently explained
to him, which would provide a basis for his stating, immediately thereafter,
that he did not believe that he had made the correct decision with respect
to entering the plea.
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 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.’’
8
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 [Practice
Book §] 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.’’
9
Again, we observe that a prior information in the court file, dated June
22, 2012, charged the defendant with murder, but not as an accessory.
10
‘‘Our courts have stopped short of adopting a per se rule that notice of
the true nature of the charge always requires the court to give a description
of every element of the offense charged. . . . The trial court’s failure to
explicate an element renders the plea invalid only where the omitted element
is a critical one . . . and only where it is not appropriate to presume that
defense counsel has explained the nature of the offense in sufficient detail
to give the accused notice of what he is being asked to admit.’’ (Citations
omitted; internal quotation marks omitted.) State v. Hackett, 16 Conn. App.
601, 603, 548 A.2d 16 (1988).
11
Although we recognize that the court was not required to establish a
factual basis for the plea; see State v. Niblack, 220 Conn. 270, 281, 596 A.2d
407 (1991); we know of no reason to disregard the factual basis provided
in the present case in our examination of the events that transpired at the
time of the plea canvass.
12
Because in the present case, the court did not refer to the accessorial
liability statute during its canvass and the court clerk did not inform the
defendant that he was being charged under the accessory statute, the facts
at issue in the present case are readily distinguishable from those at issue
in State v. Barnwell, supra, 102 Conn. App. 260–62, a case on which the
state heavily relies. We note, as well, that the claim at issue in the present
case is distinct from the claims raised in Barnwell.
13
General Statutes § 53a-8 (a) provides: ‘‘A person, acting with the mental
state required for commission of an offense, who solicits, requests, com-
mands, importunes or intentionally aids another person to engage in conduct
which constitutes an offense shall be criminally liable for such conduct and
may be prosecuted and punished as if he were the principal offender.’’
14
In light of our resolution of this claim, we need not consider the defen-
dant’s third claim—whether the court accepted the plea in violation of the
defendant’s right to due process—or the other aspect of the defendant’s first
claim—whether the court abused its discretion in denying the defendant’s
motion to withdraw the plea.
15
The state argues that the transcript of the plea canvass ‘‘completely
belied the defendant’s assertion that his counsel failed to provide satisfactory
advice or that he pressured him to plead guilty.’’ Although the plea canvass
reflects that the defendant had an opportunity to discuss his plea with his
attorney, he was satisfied with his advice, and that he was not pressured
into pleading guilty, the plea canvass does not reflect that the defendant’s
attorney adequately advised him with respect to the nature of the charge,
murder as an accessory, or that the defendant was satisfied with his counsel’s
representation subsequent to the plea canvass, in connection with the defen-
dant’s motion to withdraw his plea. His request for new counsel, therefore,
was not necessarily belied by what transpired at the plea canvass.
16
We clarify that our holding is limited to the court’s obligation to conduct
an inquiry into the defendant’s grievances. We do not take any position with
respect to the proper outcome of that inquiry. Moreover, in light of our
resolution of this claim, we need not reach the merits of the defendant’s
claim that the court violated his right to counsel by failing to address
his grievances.