State v. Budziszewski ( 2014 )

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STATE OF CONNECTICUT v. PIOTR BUDZISZEWSKI
(AC 35374)
DiPentima, C. J., and Bear and Peters, Js.*
Argued March 10—officially released June 24, 2014
(Appeal from Superior Court, judicial district of New
Haven, geographical area number seven, Scarpellino, J.)
Martin M. Rizzi, for the appellant (defendant).
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and James Turcotte, supervisory assis-
tant state’s attorney, for the appellee (state).
Opinion
PER CURIAM. The defendant, Piotr Budziszewski,1
appeals from the judgment of the trial court denying
his motion to vacate the judgment of conviction and
withdraw his plea of guilty and his motion to reargue.
The defendant claims that the court failed to comply
with the requirements of General Statutes § 54-1j in its
plea canvass of the defendant.2 We affirm the judgment
of the trial court.
The following facts and procedural history are rele-
vant to this appeal. The defendant is a native of Poland
who, after a drug exchange with an undercover police
officer, was charged with possession of narcotics with
the intent to sell under General Statutes § 21a-277 (a).
The defendant entered a plea of guilty. During the plea
hearing, the court canvassed the defendant and found
that there was a factual basis for the plea and that the
defendant knowingly, intelligently and voluntarily had
made the plea with the assistance of competent counsel.
The plea was accepted, and immediately thereafter, as
the court was beginning to set a date for a sentencing
hearing, the prosecutor interjected, ‘‘Your Honor, there
may be some immigration issues. . . .’’ The court, not-
ing that it had planned to address that topic, proceeded
to advise the defendant of the possible immigration
consequences stemming from his guilty plea, and after-
ward, asked if he understood these possible conse-
quences. The defendant said, ‘‘Yes.’’ Defense counsel3
then intervened, and pressed, ‘‘Yes, you could have
issues. And we have—just for the record and pursuant
to recent federal cases, we have discussed that in
detail.’’ The court then advised the defendant again of
the possible immigration consequences resulting from
a guilty plea, and for the second time, asked if he under-
stood. The defendant answered, ‘‘Yes.’’ Finally, referring
to the guilty plea, the court asked the defendant, ‘‘You
still want to go forward with that then?’’ The defendant
replied, ‘‘Yes.’’ The court accepted the plea and the
hearing ended.
Thereafter, some months after he was sentenced, the
defendant filed a motion to vacate the judgment and
withdraw his guilty plea pursuant to § 54-1j.4 He made
two challenges. He first argued that the court improp-
erly accepted his plea before advising him of possible
immigration consequences, and second, that he did not
fully understand the advisement due to his limited facil-
ity with the English language and the absence of a Polish
speaking interpreter. The court held a hearing on the
motion. With respect to the defendant’s first argument,
the court concluded that it had complied substantially
with the requirements of § 54-1j. As to the second argu-
ment, the court concluded that the defendant had
understood the advisement. Accordingly, the court
denied the defendant’s motion to vacate the judgment
and withdraw his guilty plea. Thereafter, the defendant
moved to reargue that motion, which the court also
denied. This appeal followed. Additional facts will be
set forth as necessary.
We begin with our standard of review. ‘‘[A guilty]
plea, once accepted, may be withdrawn only with the
permission of the court. . . . Section 54-1j (c) permits
the defendant, not later than three years after the accep-
tance of his guilty plea, to move to withdraw his plea
if he can show that the court failed to comply with the
requirements of § 54-1j (a). The burden is always on
the defendant to show a plausible reason for the with-
drawal of a plea of guilty. . . . 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;
footnote omitted; internal quotation marks omitted.)
State v. Hall, 303 Conn. 527, 532–33, 35 A.3d 237 (2012).
I
The defendant’s first claim is that the court abused
its discretion in denying his motion to vacate the judg-
ment and withdraw his plea of guilty because, contrary
to the requirements of § 54-1j, it accepted his plea before
personally advising him of its possible immigration con-
sequences. We disagree.
After careful consideration of the record, we con-
clude that the court did indeed advise the defendant
pursuant to § 54-1j of possible immigration conse-
quences before accepting his plea. It is true that the
court accepted the plea, at first, without advising the
defendant of its possible immigration consequences.
Immediately following its acceptance, however, the
court addressed the defendant personally and advised
him of the possible immigration consequences. The
court then gave the defendant an opportunity to with-
draw his guilty plea, asking, ‘‘You still want to go for-
ward with that then?’’ The defendant assented. That
conversation afforded the defendant the opportunity to
reconsider his guilty plea after being adequately warned
of its possible immigration consequences. We therefore
conclude that the court substantially complied with the
requirements of § 54-1j. See State v. Malcolm, 257 Conn.
653, 662, 778 A.2d 134 (2001) (‘‘only substantial compli-
ance with the statute is required to validate a defen-
dant’s guilty plea’’). Accordingly, the court did not abuse
its discretion in denying the defendant’s motion to
vacate the judgment and withdraw his plea.
II
The defendant’s second claim is that the court abused
its discretion in denying his motion to vacate the judg-
ment and withdraw his plea of guilty because, contrary
to the requirements of § 54-1j, it failed to consider
‘‘important, relevant and unchallenged evidence’’ dem-
onstrating that he lacked an understanding of the immi-
gration consequences of his plea. We are not persuaded.
The following additional facts are pertinent to this
claim. During the hearing on the defendant’s motion,
the court admitted into evidence: an affidavit from the
defendant, in both English and Polish; a letter from
Attorney Klein; a fax from the defendant’s immigration
attorney; and selected portions of the Immigration and
Nationality Act regarding the deportation of aliens. The
court also admitted into evidence a transcript from the
plea hearing.
On appeal, the defendant argues that the court abused
its discretion because it did not consider the evidence
he submitted during the hearing, specifically his affida-
vit. The record belies the defendant’s claim. Although
the court primarily relied on a transcript from the plea
hearing to support its finding that the defendant under-
stood the possible immigration consequences of his
plea, it stated expressly, on two occasions, that it con-
sidered the defendant’s evidence. On one occasion,
Attorney Rizzi asked the court directly if it was basing
its findings on the transcript from the plea hearing and
‘‘on the offer of proof that we provided?’’ The court
answered, unequivocally, ‘‘Yes.’’ On another occasion,
Attorney Rizzi asked the court if it was considering
the defendant’s affidavit, to which the court replied
affirmatively. On the basis of our review of the record,
we cannot conclude that the court abused its discretion.
The judgment is affirmed.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
We note that throughout the court file, the defendant’s name has been
spelled as both ‘‘Budziszekski’’ and ‘‘Budziszewski.’’ We use the latter spelling
of the defendant’s name as it appears in his signed affidavit, the trial tran-
scripts, and his brief.
2
The defendant also claims that the court abused its discretion in denying
his motion to reargue the denial of his motion to vacate the judgment and
withdraw his plea of guilty. We disagree. In support of his claim, the defen-
dant points to the same evidence, substantively, that we conclude in part
II of this opinion properly to have been considered by the court. As we
have stated previously, a motion to reargue cannot be used to have a second
bite of the apple. See, e.g., Gibbs v. Spinner, 103 Conn. App. 502, 507, 930
A.2d 53 (2007). Accordingly, we conclude that the court exercised proper
discretion in denying the defendant’s motion to reargue because the defen-
dant offered no additional, relevant evidence for the court to consider. We
note that the defendant conceded during oral argument before this court
that the necessity of his actual presence was not the basis for his motion
to reargue.
3
During his plea hearing, the defendant was represented by Attorney
Gerald Klein. In later proceedings, the defendant was represented by Attor-
ney Martin Rizzi.
4
General Statutes § 54-1j provides in relevant part: ‘‘(a) The court shall
not accept a plea of guilty or nolo contendere from any defendant in any
criminal proceeding unless the court first addresses the defendant personally
and determines that the defendant fully understands that if the defendant
is not a citizen of the United States, conviction of the offense for which the
defendant has been charged may have the consequences of deportation or
removal from the United States, exclusion from readmission to the United
States or denial of naturalization, pursuant to the laws of the United States.
If the defendant has not discussed these possible consequences with the
defendant’s attorney, the court shall permit the defendant to do so prior to
accepting the defendant’s plea.
***
‘‘(c) If the court fails to address the defendant personally and determine
that the defendant fully understands the possible consequences of the defen-
dant’s plea, as required in subsection (a) of this section, and the defendant
not later than three years after the acceptance of the plea shows that the
defendant’s plea and conviction may have one of the enumerated conse-
quences, the court, on the defendant’s motion, shall vacate the judgment,
and permit the defendant to withdraw the plea of guilty or nolo contendere,
and enter a plea of not guilty.’’