State v. Guaman , 173 Conn. App. 144 ( 2017 )

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STATE OF CONNECTICUT v. MANUEL A. GUAMAN
(AC 38248)
Alvord, Sheldon and Bear, Js.
Argued January 10—officially released May 16, 2017
(Appeal from Superior Court, judicial district of
Waterbury, Fasano, J.)
Ismian Feraizi, with whom, on the brief, was Martin
J. Minnella, for the appellant (defendant).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Amy L. Sedensky, senior assistant state’s
attorney, for the appellee (state).
Opinion
BEAR, J. The defendant, Manuel A. Guaman, appeals
from the judgment of conviction of assault in the first
degree in violation of General Statutes § 53a-59 (a) (3),
rendered following the trial court’s denial of his motion
to withdraw his Alford plea.1 On appeal, the defendant
claims that the court erred when it denied his motion
to withdraw his plea because his counsel at the time
of his plea provided ineffective assistance when: (1) he
failed to advise him of the immigration consequences
of his guilty plea; and (2) he failed to advise him fully
of his available options related to his plea because he
was laboring under an undisclosed conflict of interest.
We affirm the judgment of the trial court.
The following uncontested facts and procedural his-
tory are relevant to this appeal. On September 2, 2013,
the defendant, a citizen of Ecuador, assaulted the victim
with a broken beer bottle, causing severe lacerations
to his right arm and face. The injuries required surgery
and resulted in scarring to the victim’s face. On Septem-
ber 3, 2013, the defendant was charged with assault in
the first degree in violation of § 53a-59 and breach of
peace in the second degree in violation of General Stat-
utes § 53a-181.
While being represented by Attorney David Feliu, the
defendant pleaded not guilty to the charges and elected
a jury trial. After becoming dissatisfied with Feliu’s
representation, the defendant sought new counsel, and,
thereafter, retained Attorney Ira Mayo. Mayo repre-
sented the defendant from May through September
2014. On October 1, 2014, Mayo began a four month
suspension from the practice of law. Mayo first learned
of this suspension on July 2, 2014.
On September 19, 2014, while still represented by
Mayo, the defendant pleaded guilty, pursuant to the
Alford doctrine, to assault in the first degree in violation
of § 53a-59 (a) (3), under a substitute information. Fol-
lowing a canvass of the defendant, the court, Fasano,
J., determined that the defendant’s plea was knowingly
and voluntarily made with the assistance of competent
counsel. During the canvass, the plaintiff affirmed to
the court that he understood the immigration conse-
quences of his plea, including that deportation was a
‘‘virtual certainty’’ after the court accepted his guilty
plea and he was convicted of assault in the first degree.
The defendant also affirmed that he had discussed the
immigration consequences of his plea with his attorney.
The court thereafter accepted the defendant’s plea.
On March 27, 2015, the defendant, who by this date
had again obtained new counsel, moved to withdraw
his guilty plea on the grounds that Mayo had performed
deficiently and thus provided him with ineffective assis-
tance because he: (1) failed to advise him of the immi-
gration consequences of his plea; and (2) failed to advise
him about all of his options regarding how to dispose
of his case because of an actual conflict of interest.
Given Mayo’s forthcoming suspension, the defendant
claimed that a conflict of interest arose in representing
him at his plea hearing. The state objected to the motion,
and the defendant and the state presented testimony
and other evidence in support of their positions over
the course of four days in June, 2015.
The defendant and David Avila, a friend who helped
the defendant retain Mayo and translated for the defen-
dant2 at their first meeting, testified at the hearing on
the motion to withdraw the guilty plea. Both men testi-
fied that Mayo had never discussed with the defendant
the immigration consequences of pleading guilty. The
defendant testified that the first time that Mayo told
him of the plea offer was on September 19, 2014, that
the conversation occurred just before the plea hearing
was to take place, and that Mayo told him that he had
to plead guilty. He also testified that there were never
any discussions of his trial options, and that Mayo
explained only the state’s evidence against him. Addi-
tionally, he testified that Mayo never informed him of
the four-month suspension from the practice of law to
which Mayo had agreed and, instead, that Mayo told
him that he was going on vacation for four months
and that another attorney would handle the sentencing
hearing scheduled for December, 2014.
In contradiction of the defendant’s and Avila’s testi-
mony, Mayo testified at length regarding the advice
he had given to the defendant over the course of his
representation, stating that he had repeatedly advised
the defendant that a conviction on the charged offenses
would lead to deportation, that he, Mayo, would be
suspended from the practice of law for four months,
that he had reviewed with the defendant all of his
options regarding whether to plead guilty or go to trial,
and that he had given the defendant the names of at
least two attorneys who would be willing to represent
him if he chose to go to trial.
At the conclusion of the hearing, the court expressly
credited Mayo’s testimony over that of the defendant
and Avila. Additionally, the court found that Mayo had
advised the defendant of the immigration consequences
of his plea, that the court had fully canvassed the defen-
dant on his plea, and, that because of the potential
length of the sentence that the defendant was exposed
to if he were convicted, he chose to plead guilty notwith-
standing the likelihood of deportation. The court also
found that Mayo advised the defendant of his upcoming
suspension, that Mayo gave him the names of other
attorneys whom the defendant could contact to repre-
sent him, that the defendant was not forced to, or
believed that he had to, plead guilty, and that any impact
of the pending suspension was speculative. The court
found, on the basis of the defendant’s plea canvass,
that the defendant was satisfied with Mayo’s representa-
tion at the time he pleaded guilty, and the court viewed
the plea offer as ‘‘very fair’’ under the circumstances.
Therefore, the court found that the defendant’s plea
was entered voluntarily and knowingly, and was made
with the assistance of competent counsel. Accordingly,
the court denied the defendant’s motion.
Following its review of a presentence investigation
report, the court sentenced the defendant to eight years
of incarceration, execution suspended after three and
one-half years, followed by three years of probation.
This appeal followed.
Before addressing the merits of the defendant’s
claims on appeal, we set forth the standard of review
for a denial of a motion to withdraw a guilty plea. ‘‘It
is well established that [t]he burden is always on the
defendant to show a plausible reason for the withdrawal
of a plea of guilty. . . . To warrant consideration, the
defendant must allege and provide facts which justify
permitting him to withdraw his plea under [Practice
Book § 39-27]. . . . Whether such proof is made is a
question for the court in its sound discretion, and a
denial of permission to withdraw is reversible only if
that discretion has been abused. . . . In determining
whether the trial court [has] abused its discretion, this
court must make every reasonable presumption in favor
of [the correctness of] its action. . . . Our review of a
trial court’s exercise of the legal discretion vested in it
is limited to the questions of whether the trial court
correctly applied the law and could reasonably have
reached the conclusion that it did. . . .
‘‘Motions to withdraw guilty pleas are governed by
Practice Book §§ 39-26 and 39-27. Practice Book § 39-
26 provides in relevant part: A defendant may withdraw
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 [Practice
Book §] 39-27 . . . . Practice Book § 39-27 (4) pro-
vides, in turn, that a defendant may withdraw his guilty
plea after acceptance if [t]he plea resulted from the
denial of effective assistance of counsel. . . . The stan-
dard 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 under-
mines confidence in the integrity of our judicial proce-
dures, but also increases the volume of judicial work,
and delays and impairs the orderly administration of
justice.’’3 (Citations omitted; emphasis omitted; internal
quotation marks omitted.) State v. Anthony D., 320
Conn. 842, 850–51, 134 A.3d 219 (2016).
To establish his claim of ineffective assistance, the
defendant has the burden to show that ‘‘(1) counsel’s
representation fell below an objective standard of rea-
sonableness, and (2) counsel’s deficient performance
prejudiced the defense because there was a reasonable
probability that the outcome of the proceedings would
have been different had it not been for the deficient
performance.’’ (Emphasis in original.) Johnson v. Com-
missioner of Correction, 285 Conn. 556, 575, 941 A.2d
248 (2008). ‘‘The first prong requires a showing that
counsel made errors so serious that counsel was not
functioning as the counsel guaranteed the defendant
by the [s]ixth [a]mendment.’’ (Internal quotation marks
omitted.) Id., 576. With respect to the prejudice prong
for claims of ineffective assistance when the conviction
resulted from a guilty plea, the defendant must demon-
strate that there is a reasonable probability that, but for
counsel’s errors, the defendant would not have pleaded
guilty and would have insisted on going to trial. Id.I
The defendant argues that the trial court abused its
discretion when it denied his motion to withdraw his
guilty plea because Mayo provided ineffective assis-
tance when he failed to advise him of the immigration
consequences of his guilty plea. We disagree.
The evidence offered at the motion to withdraw hear-
ing reveals the following additional uncontroverted pro-
cedural history. During Attorney Feliu’s representation,
a plea offer was made in which the defendant could
plead guilty to first degree assault in exchange for a
sentence of ten years of incarceration, suspended after
five years, followed by three years of probation, but
the defendant could argue at sentencing for a period of
incarceration between eighteen months and five years.
Feliu discussed the immigration consequences of the
pending charges with the defendant and advised him
to consult an immigration attorney, providing him with
the name of an attorney he could contact. The defendant
became dissatisfied with Feliu’s representation and
sought new counsel with the help of Avila.
Mayo, whose testimony was expressly credited by the
court, testified as follows. In April, 2014, Avila contacted
him to represent the defendant. Before meeting with
the defendant, Mayo spoke with Feliu, and they dis-
cussed the plea offer, the evidence, the potential immi-
gration issues posed by the defendant’s lack of
citizenship status, and that there was a letter from a
potential eyewitness who could testify on the defen-
dant’s behalf.
On May 13, 2014, Mayo met the defendant, the defen-
dant’s brother, and Avila at a coffee shop inside a book-
store in Waterbury. At the meeting, Avila and the
defendant’s brother translated for the defendant, as
they discussed the case, the available plea offer, and
immigration issues. Specifically, they discussed a self-
defense theory and the defendant’s version of the
events. Mayo asked the defendant if he had contacted
the immigration attorney that Feliu had recommended,
but the defendant indicated that he had not. He
explained that the defendant would be deported if he
were convicted of the current charges. Although the
defendant was receiving the information through a
translator, he seemed to understand what Mayo was
explaining. During the meeting, the defendant asked
Mayo questions, including asking repeatedly whether
there was a way to avoid deportation because he had
a family in the United States. The defendant chose to
retain Mayo at that meeting, signing a retainer
agreement and ‘‘pa[ying] in full.’’
Following a pretrial conference on July 7, 2014, Mayo
and the defendant remained at the courthouse to dis-
cuss, with the aid of an interpreter, the state’s plea
offer and the attendant immigration consequences of
accepting that plea offer, i.e., deportation. As part of
their plea offer discussions, Mayo and the defendant
discussed whether to accept the offer or proceed to
trial. During this discussion, they reviewed the state’s
evidence: the photographs of the victim’s injuries, the
medical records, and the police report that included an
admission by the defendant and his stated motives for
assaulting the victim.
Prior to a scheduled September 4, 2014 court date,
at which the defendant would be required to accept or
reject the plea offer, Mayo and the defendant spoke
over the telephone with the aid of Mayo’s Spanish-
speaking legal assistant. They discussed whether the
defendant should accept or decline the plea offer. Dur-
ing this telephone call, Mayo explained the defendant’s
options either if the case went to trial or if the defendant
chose to accept the plea offer.
On September 4, 2014, the defendant was still unsure
about whether he wanted to accept or reject the offer,
so the state’s attorney and the court agreed to give him
until September 19, 2014, to decide. That day, Mayo
explained to the defendant that he would have to decide
whether to accept or reject the offer because, if he did
not accept the offer on September 19, the judge would
place the case on the trial list and the plea offer would
be withdrawn. At some point, after learning that the
defendant still had not spoken with an immigration
attorney, Mayo advised the defendant that he needed
to contact an immigration attorney about his situation,
either an attorney that he recommended or the attorney
that Feliu had recommended.
Also at the September 4, 2014 court appearance, Mayo
told the defendant that he was going to be suspended
from the practice of law for a period of four months.
He stated that the defendant could choose to retain
another attorney before or after the September 19, 2014
plea hearing. Additionally, if the defendant chose to
reject the offer and go to trial, he could assist another
attorney to prepare for trial or he could conduct the trial
himself if the trial was scheduled after his suspension
concluded. The defendant did not seem concerned by
this development and chose to continue with Mayo
representing him for the September 19 hearing.
On September 19, 2014, in a courthouse hallway, he
and the defendant discussed the defendant’s options at
length with the aid of an interpreter. The defendant
decided to accept the plea offer, and Mayo explained
to him what the court expected in a plea canvass, includ-
ing the questions judges usually ask. Additionally, they
went over what it meant to plead guilty under the Alford
doctrine and the immigration issues that the judge
would address during the canvass. They again discussed
the immigration consequences of the defendant’s plea.
The defendant was aware that if he pleaded guilty, he
would be deported. Finally, Mayo also informed the
defendant that he would not be able to represent him
at sentencing, which was scheduled for December 5,
2014, due to his suspension from the practice of law.
Furthermore, he provided the defendant with the names
of two attorneys who could represent him at sen-
tencing.
As explained in Padilla v. Kentucky, 559 U.S. 356,
130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), and Budziszew-
ski v. Commissioner of Correction, 322 Conn. 504, 142
A.3d 243 (2016),4 an attorney has an affirmative obliga-
tion to advise a client of the immigration and deporta-
tion consequences of his or her guilty plea.5 ‘‘In Padilla
. . . the United States Supreme Court concluded that
the federal constitution’s guarantee of effective assis-
tance of counsel requires criminal defense counsel to
accurately advise a noncitizen client of the immigration
consequences of pleading guilty to a crime, as described
in federal law. . . . For crimes designated as aggra-
vated felonies, including the crime at issue in the pre-
sent case, federal law mandates deportation almost
without exception. . . . We conclude that, for these
types of crimes, Padilla requires counsel to inform the
client about the deportation consequences prescribed
by federal law.’’ (Citations omitted.) Budziszewski v.
Commissioner of Correction, supra, 322 Conn. 506–507.
Our Supreme Court emphasized that ‘‘there are no
fixed words or phrases that counsel must use to convey
this information, and courts reviewing Padilla claims
must look to the totality of counsel’s advice, and the
language counsel actually used, to ensure that counsel
accurately conveyed the severity of the consequences
under federal law to the client in terms the client could
understand. In formulating its standard, Padilla did not
prescribe any fixed words or phrases that counsel must
use when advising the client of immigration conse-
quences, but recognized that the content of counsel’s
advice will depend significantly on the client’s circum-
stances. . . . Because each client’s legal situation and
ability to understand the English language and legal
concepts will vary, courts applying Padilla have
resisted identifying magic words that counsel must use
or any safe harbor language that would presumptively
satisfy counsel’s obligations, similar to the warnings
police officers must give under Miranda v. Arizona,
384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
. . . Instead, the focus of the court’s inquiry must be
on the essence of the information conveyed to the client
to ensure that counsel clearly and accurately informed
the client of the immigration consequences under fed-
eral law in terms the client could understand. . . . This
requires the court to consider the totality of the advice
given by counsel, make findings about what counsel
actually told the client, and then determine whether,
based on those findings, the petitioner met his burden
to prove that counsel’s advice failed to convey the infor-
mation required under Padilla.’’ (Citations omitted;
internal quotation marks omitted.) Id., 512–14.
On appeal, the defendant claims that Mayo provided
ineffective assistance because he failed to advise him
of the immigration consequences of his guilty plea.6
After weighing the testimony of the defendant, Avila,
and Mayo, the court expressly credited Mayo’s testi-
mony and found that Mayo had advised the defendant
of the immigration consequences of his plea, and that
the defendant nevertheless chose to plead guilty, not-
withstanding the likelihood of deportation. Specifically,
the court found that ‘‘[Mayo] testified he told the defen-
dant [first degree assault] was a deportable offense.
And I certainly believe it under the circumstances.
[C]onsequently, I disbelieve the position of the testi-
mony of the defendant with respect to this issue.’’ Con-
sequently, the court found that Mayo had advised the
defendant of the immigration consequences of his plea.
See Budziszewski v. Commissioner of Correction,
supra, 322 Conn. 513–14.
The record supports this determination because
Mayo testified that he advised the defendant on multiple
occasions that a conviction of first-degree assault would
result in deportation. Mayo testified that the defendant
was aware of the deportation consequences of his con-
viction of assault in the first degree in violation of § 53a-
59 (a) (3), and that he discussed his concerns about
deportation with Mayo during their first meeting. The
defendant’s and Avila’s testimony to the contrary
required the court to make a credibility determination
to which we accord deference when it is supported by
the record, as it is in this case. See State v. Brown, 82
Conn. App. 678, 682, 846 A.2d 943 (in affirming denial
of motion to withdraw plea, deferring to trial court’s
finding that testimony of defendant’s former attorney
was more credible than defendant’s), cert. denied, 270
Conn. 906, 853 A.2d 522 (2004).
Accordingly, in light of the testimony and other evi-
dence, as well as the trial court’s credibility determina-
tion, we conclude that Mayo’s performance was not
deficient or ineffective due to any failure to advise the
defendant of the immigration consequences of deporta-
tion after his conviction of assault in the first degree
in violation of § 53a-59 (a) (3); therefore, the court did
not abuse its discretion in denying the motion to with-
draw the defendant’s guilty plea on this ground.
II
The defendant also argues that he received ineffective
assistance of counsel because Mayo did not fully
explain his options to him due to a purported conflict
of interest. ‘‘[I]t is well established that [a] criminal
defendant is constitutionally entitled to adequate and
effective assistance of counsel at all critical stages of
criminal proceedings. . . . This right arises under the
sixth and fourteenth amendments to the United States
constitution and article first, § 8, of the Connecticut
constitution. . . . It is axiomatic that the right to coun-
sel is the right to the effective assistance of counsel.
. . . As an adjunct to this right, a criminal defendant
is entitled to be represented by an attorney free from
conflicts of interest.’’ (Citations omitted; internal quota-
tion marks omitted.) Rodriguez v. Commissioner of
Correction, 312 Conn. 345, 352, 92 A.3d 944 (2014).
Although Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and Hill v.
Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d
203 (1985), require a defendant to establish prejudice,
‘‘[w]here . . . the defendant claims that his counsel
was burdened by an actual conflict of interest . . . the
defendant need not establish actual prejudice. . . .
Where there is an actual conflict of interest, prejudice
is presumed because counsel [has] breach[ed] the duty
of loyalty, perhaps the most basic of counsel’s duties.
Moreover, it is difficult to measure the precise effect on
the defense of representation corrupted by conflicting
interests.’’ (Internal quotation marks omitted.) Adorno
v. Commissioner of Correction, 66 Conn. App. 179, 194,
783 A.2d 1202, cert. denied, 258 Conn. 943, 786 A.2d
428 (2001). ‘‘In a case of a claimed conflict of interest
. . . in order to establish a violation of the sixth amend-
ment the defendant has a two-pronged task. He must
establish (1) that counsel actively represented conflict-
ing interests and (2) that an actual conflict of interest
adversely affected his lawyer’s performance.’’ (Internal
quotation marks omitted.) Phillips v. Warden, 220
Conn. 112, 133, 595 A.2d 1356 (1991).
In the present case, the parties largely focus their
arguments on whether Mayo in fact represented con-
flicting interests. The court’s decision, however, does
not contain any specific finding as to whether a conflict
existed. Nevertheless, the court found that any impact
from Mayo’s upcoming suspension was ‘‘totally specula-
tive.’’ In contesting this finding on appeal, the defendant
relies mostly on testimony explicitly discredited by the
court, and on what the court rejected as speculation.
After reviewing the record, briefs, and parties’ argu-
ments before this court, we determine that the court
properly concluded, based on the evidence before it,
that any limitation on Mayo’s advice to the defendant
related to a purported conflict arising from his
impending suspension was speculative. Accordingly,
the court properly concluded that the defendant did
not establish that Mayo’s performance was adversely
affected by his forthcoming suspension. State v. Webb,
238 Conn. 389, 423, 680 A.2d 147 (1996). The court
therefore did not abuse its discretion in denying the
defendant’s motion to withdraw his plea on this ground.
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘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).
2
The defendant’s native language is Kichwa, but he also speaks Spanish.
3
Contrary to the defendant’s assertion in his brief that our standard of
review of his claims is plenary, we review them for an abuse of discretion.
State v. Anthony D., 320 Conn. 842, 850–51, 134 A.3d 219 (2016).
4
After the defendant submitted his brief but before the state submitted
its brief and the defendant his reply, the Supreme Court decided Budziszew-
ski v. Commissioner of Correction, supra, 322 Conn. 504; neither party,
however, discussed the case, in its brief. This court, therefore, ordered the
parties to be prepared to discuss the applicability of Budziszewski at oral
argument, and the parties did so.
5
For a more complete discussion of Padilla and Budziszewski, see Dun-
can v. Commissioner of Correction, 171 Conn. App. 635, A.3d (2017).
6
It is undisputed that federal law required that the defendant be deported
after his conviction of assault in the first degree in violation of § 53a-59
(a) (3), because it is an aggravated felony under 8 U.S.C. § 1101 (a) (43)
(F) (2012).