State v. Lima , 180 Conn. App. 48 ( 2018 )

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STATE OF CONNECTICUT v. EVANDRO M. LIMA
(AC 39400)
Sheldon, Elgo and Mihalakos, Js.
Syllabus
Convicted, following a plea of guilty, of the crime of conspiracy to commit
larceny in the sixth degree, the defendant appealed to this court. He
claimed that the trial court improperly denied his motion to vacate the
judgment of conviction and to withdraw his plea because that court did
not determine whether he understood the immigration consequences
of his guilty plea prior to accepting it, as required by statute (§ 54-1j).
Held that the trial court abused its discretion in denying the defendant’s
motion to vacate; at no time during the plea canvass did the trial court
ask the defendant if he understood the potential immigration conse-
quences of his guilty plea and, instead, simply advised him that his
conviction could result in his removal or deportation from the United
States, and, thus, the trial court did not substantially comply with the
requirements of § 54-1j (a) prior to accepting the defendant’s plea, and
the court, in denying the defendant’s motion to vacate, improperly relied
on the facts that the defendant, when entering his guilty plea, had
expressed his absolute satisfaction with his attorney’s representation
of him and told the court that there was no reason that his plea should
not have been accepted, which were meaningless statements in the
absence of some indication that the defendant knew and understood
the potential consequences of his guilty plea.
Argued November 30, 2017—officially released March 6, 2018
Procedural History
Information charging the defendant with the crime
of conspiracy to commit larceny in the sixth degree,
brought to the Superior Court in the judicial district
of New Britain, geographical area number seventeen,
where the defendant was presented to the court, John-
son, J., on a plea of guilty; judgment of guilty; thereafter,
the court, Dyer, J., denied the defendant’s motion to
vacate the judgment and withdraw his plea, and the
defendant appealed to this court. Reversed; further pro-
ceedings.
Vishal K. Garg, for the appellant (defendant).
Linda F. Currie-Zeffiro, assistant state’s attorney,
with whom, on the brief, were Brian Preleski, state’s
attorney, and Paul Rotiroti, senior assistant state’s
attorney, for the appellee (state).
Opinion
SHELDON, J. The defendant, Evandro M. Lima,
appeals from the judgment of the trial court denying
his motion to vacate his conviction following his guilty
plea to one count of conspiracy to commit larceny in
the sixth degree in violation of General Statutes §§ 53a-
48 and 53a-125b. The defendant claims that the trial
court abused its discretion in denying his motion
because, under General Statutes § 54-1j,1 the court was
required but failed to ask the defendant whether he
understood the possible immigration consequences of
pleading guilty before accepting his plea.2 We agree
with the defendant and reverse the judgment of the
trial court.
The following procedural history is relevant to our
resolution of this appeal. On August 1, 2014, the defen-
dant entered a plea of guilty under the Alford doctrine3
to conspiracy to commit larceny in the sixth degree
after he conspired with another individual to commit
a shoplifting at Price Chopper in Southington. During
the plea canvass, the court asked the defendant several
questions, including whether he was under the influ-
ence of alcohol, drugs or any other medication. The
defendant answered in the negative. The court also
asked the defendant whether he had had enough time
to discuss his case with his attorney and was satisfied
with his attorney’s advice; whether his attorney had
reviewed with him all of the evidence that the state
claimed that it had to prove his guilt; and whether his
attorney had informed him of the maximum possible
penalty he was facing in the event of conviction. The
court also asked the defendant if he knew that by plead-
ing guilty, he was giving up his right to have a trial, to
require the state to prove his guilt beyond a reasonable
doubt, to confront and cross-examine witnesses and to
present his own witnesses and his own testimony. The
defendant responded in the affirmative to all of the
court’s inquiries. The court then told the defendant: ‘‘If
you are not a U.S. citizen, this conviction may result in
your removal from the United States or deportation
under federal law.’’ The court followed that admonition
with the question: ‘‘Has anyone forced or threatened
you to enter your plea today?’’ The defendant responded
in the negative and affirmed that he was entering his
plea of his own free will. The court asked the defendant:
‘‘[I]s there any reason why I shouldn’t accept your plea?’’
The defendant responded: ‘‘Not at all.’’ The court found
that the plea was ‘‘knowingly and voluntarily made with
the assistance of competent counsel,’’ and thus ordered
that it be accepted.
Thereafter, on August 11, 2015, pursuant to § 54-1j
(a) and (c), the defendant filed a motion to vacate his
conviction and withdraw his guilty plea, claiming that
the trial court improperly failed to determine whether
he understood the immigration consequences of his
guilty plea and that he had discussed the possible immi-
gration consequences of the plea with his attorney
before entering it. The trial court denied the defendant’s
motion, concluding: ‘‘By advising the defendant in this
case that his conviction for conspiracy to commit lar-
ceny could result in his removal or deportation from
the United States under federal law, the trial court ade-
quately and substantially warned the defendant that his
immigration status could be adversely affected as a
consequence of his decision to plead guilty. Although
the trial court did not specifically inquire of the defen-
dant if he understood the potential immigration conse-
quences, the transcript reflects that the trial court did
personally address the defendant, and that the defen-
dant was satisfied with his counsel’s representation.
Specifically, the defendant told the court that he was
‘absolutely’ satisfied with the representation that he
received from his public defender. Additionally, subse-
quent to advising the defendant that his plea could result
in his deportation or removal from the United States,
the court asked the defendant if there was any reason
why his plea should not be accepted. The defendant
responded: ‘[N]ot at all.’ Viewed in its entirety, the tran-
script indicates that the defendant understood the trial
court’s questions and remarks during the plea canvass.
The court found the defendant’s plea was knowingly
and voluntarily made with the assistance of competent
counsel. Implicit in that finding by the trial court is a
determination that the defendant understood the
court’s warning about the possible immigration conse-
quences of his guilty plea.’’ The court then concluded
that: ‘‘Based on the foregoing, the undersigned finds
that the trial court substantially complied with the pro-
visions of . . . § 54-1j when the defendant pleaded
guilty and was sentenced on August 1, 2014.’’
On appeal, the defendant claims that the court erred
in denying his motion to vacate the judgment on his
guilty plea because the court failed to determine that
he understood the possible immigration consequences
of his guilty plea as required under § 54-1j (a).4 We
agree.
‘‘[A guilty] plea, once accepted, may be withdrawn
only with the permission of the court. . . . The burden
is always on the defendant to show a plausible reason
for the withdrawal 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 with-
draw 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).
‘‘Section 54-1j (a) provides that the court shall not
accept a guilty plea without first addressing the defen-
dant personally to ensure that he fully understands that,
if he is not a United States citizen, his conviction may
have certain enumerated immigration consequences
under federal law, and, further, if the defendant has not
discussed these possible consequences with his attor-
ney, the court shall permit him to do so before accepting
his plea offer. Section 54-1j (c) provides that, if the court
fails to comply with the requirements of subsection (a),
and the defendant can demonstrate that his conviction
may have one of the enumerated immigration conse-
quences, the court, upon motion of the defendant within
three years of the plea, shall vacate the judgment and
permit the defendant to withdraw his guilty plea and
enter a plea of not guilty.
‘‘Thus, by its terms, [§] 54-1j (a) permits a court to
accept a defendant’s plea only if the court conducts a
plea canvass during which . . . the court determines
that the defendant understands fully the possible immi-
gration consequences that may result from entering a
plea . . . .’’ (Internal quotation marks omitted.) State
v. Lima, 325 Conn. 623, 629, 159 A.3d 651 (2017). ‘‘[I]t
[is] not necessary for the trial court to read the statute
verbatim . . . [and, instead] only substantial compli-
ance with the statute is required to validate a defen-
dant’s guilty plea.’’ (Internal quotation marks omitted.)
State v. Lage, 141 Conn. App. 510, 517, 61 A.3d 581
(2013).
Here, at no time did the court ask the defendant if
he understood the potential immigration consequences
of his guilty plea. The court simply advised the defen-
dant that his conviction could result in his removal or
deportation from the United States. Rather than ask
the defendant if he understood that advisement, which
arguably was insufficient to comply with § 54-1j (a),5
the court asked the defendant if anyone had forced or
threatened him to plead guilty. In denying the defen-
dant’s motion to vacate, the court relied upon the facts
that the defendant, when entering his guilty plea, had
expressed his absolute satisfaction with his attorney’s
representation of him and told the court that there was
no reason ‘‘at all’’ that his plea should not have been
accepted. Those statements by the defendant, however,
are meaningless in the absence of some indication that
the defendant knew and understood the potential con-
sequences of his guilty plea. In other words, there is
nothing in the record to indicate that the defendant
knew that his attorney should have discussed the poten-
tial immigration consequences with him, and thus there
could have been no basis for the defendant to express
a dissatisfaction with his attorney for not advising him
of those potential consequences. Similarly, if the defen-
dant did not understand the potential immigration con-
sequences of his guilty plea, he could not have known
that said potential consequences might be a valid reason
to ask the court not to enter his guilty plea.
In support of its argument that the court substantially
complied with § 54-1j (a), the state relies upon State v.
Hall, supra, 303 Conn. 527. In Hall, our Supreme Court
affirmed the judgment denying the motion to vacate
the defendant’s guilty plea and held that the court had
substantially complied with § 54-1j (a) even though it
had not addressed the defendant personally and deter-
mined whether he understood the immigration conse-
quences of his guilty plea because it had, instead, asked
the defendant’s attorney if he had discussed those con-
sequences with the defendant and whether the defen-
dant understood them. Id., 536. In so ruling, the court
explained that the trial court was entitled to rely upon
the representations of the defendant’s attorney that the
defendant had been advised of and understood the
potential immigration consequences of his guilty plea.
Id. Because the sentencing court in the present case
did not determine whether the defendant understood
the potential immigration consequences of his guilty
plea, either by asking the defendant personally or by
asking the defendant’s attorney, this case is readily dis-
tinguishable from Hall.
The state also cites State v. Lage, supra, 141 Conn.
App. 510, in support of its argument that the canvass
of the defendant substantially complied with § 54-1j (a).
In Lage, this court affirmed the judgment denying the
motion to vacate the defendant’s guilty plea. During its
canvass, the court told the defendant, inter alia: ‘‘ ‘If
you are not a citizen of the United States, this is a
felony, it could result in deportation, removal, denial
of admission, exclusion from readmission or denial of
naturalization. . . . Any questions about anything I’ve
said?’ ’’ Id., 518. The defendant responded, ‘‘ ‘No,
ma’am.’ ’’ Id. The court then asked the defendant if he
‘‘agree[d] to all of that’’ and whether he had ‘‘discussed
it all with [his] attorney.’’ (Internal quotation marks
omitted.) Id. The defendant responded affirmatively to
both questions. Id. This court affirmed the denial of the
defendant’s motion to vacate his guilty plea and held
that the canvass was ‘‘more than sufficient to determine,
on the basis of his responses, that [the defendant]
understood the possible immigration consequences of
his pleas . . . .’’ Id., 520. Unlike the defendant in Lage,
the defendant here was not asked whether he under-
stood or had any questions regarding the court’s advise-
ment that his guilty plea could lead to his deportation.
Thus, Lage also is distinguishable from the case
before us.
Finally, the state asserts that State v. James, 139
Conn. App. 308, 57 A.3d 366 (2012), supports its argu-
ment that the court substantially complied with § 54-1j
(a). In James, the court addressed the defendant, inter
alia, as follows: ‘‘Finally, I would tell you . . . only if
it applied, if you are not a citizen of our country, such
a conviction could possibly result in your deportation,
exclusion from admission or denial of naturalization.
Do you have any questions you would like to ask the
court?’’ (Internal quotation marks omitted.) Id., 315.
The defendant responded that she did not. Id., 316.
James also is distinguishable from the present case
because, here, the court did not ask the defendant if he
had any questions about or understood the possibility
of deportation, of which he had just been advised.
On the basis of the foregoing, we conclude that the
court erred in finding that the canvass of the defendant
substantially complied with § 54-1j (a) because there
was no determination that the defendant understood
the potential immigration consequences of his guilty
plea before he entered it. Therefore, the court abused
its discretion in denying the defendant’s motion to
vacate his guilty plea.
The judgment is reversed and the case is remanded
with direction to grant the defendant’s motion to vacate
the judgment of conviction and withdraw his guilty plea
and for further proceedings according to law.
In this opinion the other judges concurred.
1
General Statutes § 54-1j (a) provides: ‘‘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 attor-
ney, the court shall permit the defendant to do so prior to accepting the
defendant’s plea.’’
General Statutes § 54-1j (c) provides: ‘‘If the court fails to address the
defendant personally and determine that the defendant fully understands
the possible consequences of the defendant’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 consequences, 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.’’
2
The defendant also claims that the court failed to substantially comply
with § 54-1j (a) because it did not advise him that one of said potential
immigration consequences was the possible exclusion from readmission to
the United States or denial of naturalization. Although the defendant did
not assert this argument in his motion to vacate, the trial court addressed
it. Because, however, we conclude that the court failed to determine whether
the defendant understood the possible immigration consequences of his
guilty plea in violation of § 54-1j, we need not address this additional claim
of noncompliance.
3
A defendant pleading guilty under the Alford doctrine neither admits
guilt nor protests innocence, but merely acknowledges that the state can
produce evidence that would be sufficient to obtain a conviction. See North
Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
4
The defendant does not claim on appeal that the court failed to ask
whether he had spoken to his attorney about the potential immigration
consequences of his guilty plea.
5
See footnote 2 of this opinion.