State v. Young , 186 Conn. App. 770 ( 2019 )

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STATE OF CONNECTICUT v. MARK YOUNG
(AC 40581)
Lavine, Sheldon and Norcott, Js.
Syllabus
Convicted, on guilty pleas, of the crimes of operating a motor vehicle while
under the influence of intoxicating liquor or drugs and evading responsi-
bility in the operation of a motor vehicle, and of previously having been
convicted of operating a motor vehicle while under the influence of
intoxicating liquor or drugs, the defendant appealed to this court. He
claimed, inter alia, that the trial court improperly denied his motion to
withdraw and vacate his guilty pleas. Specifically, he claimed that there
was no factual basis that he had a prior conviction for operating a motor
vehicle while under the influence of intoxicating liquor or drugs to
support his guilty plea to operating while under the influence as a second
offender pursuant to statute (§ 14-227a [a] and [g]). Held:
1. The trial court did not abuse its discretion in denying the defendant’s
motion to withdraw and vacate his guilty pleas:
a. The trial court’s plea canvass established an adequate factual basis
for the defendant’s guilty pleas; the state provided the court with a
part B information that alleged that the defendant previously had been
convicted, on a plea of nolo contendere, in Rhode Island of driving
while under the influence, which the court and clerk read aloud to the
defendant, and which specified the date of the prior conviction, the
town in which it was entered and the name of the prior charge of
which he was convicted, the defendant indicated that he understood
the allegations and admitted that he was a second offender when asked
by the court clerk, and the defendant agreed with the state’s factual
recitation in which the prosecutor expressly stated that the defendant
previously had been convicted of operating under the influence in
Rhode Island.
b. The defendant could not prevail in his claim that the final disposition
of his Rhode Island case was not a conviction for operating while under
the influence on the basis of which he could be convicted as a second
offender in Connecticut: the Rhode Island statute under which the defen-
dant was convicted defines the offense of driving under the influence
as a misdemeanor, indicating that it is a criminal offense subject to
criminal penalties, the Rhode Island criminal complaint indicated that
the defendant was sentenced to the mandatory minimum sentence of
a $100 fine, ten hours of public community restitution, a thirty day loss
of his driver’s license, alcohol counseling, costs, fees, and assessments,
and the defendant’s claim that the Rhode Island disposition should be
interpreted as a plea of nolo contendere followed by probation, which,
if successfully completed, would not be considered a conviction under
Rhode Island law, was unavailing, as he did not prove the Rhode Island
disposition resulted in the imposition of a probationary sentence on
him, much less that he had completed such a sentence, and thus he never
became entitled not to have his plea and resulting sentence considered
a criminal conviction; moreover, the subsequent expungement of the
defendant’s Rhode Island conviction did not affect the trial court’s con-
sideration of that conviction for the purpose of imposing an enhanced
penalty on him, as the relevant time for sentence enhancement purposes
was the time of the defendant’s criminal conduct in Connecticut in
March, 2016, and at that time the Rhode Island conviction had not
been expunged.
c. The defendant’s claims that the trial court erred because insufficient
evidence was presented to that court at the time of his guilty pleas to
establish that the essential elements of the Rhode Island statute under
which he was convicted were substantially similar to those of the Con-
necticut statute, § 14-227a, and that the trial court erred by never making
such a finding were unavailing; even though the court was under no
duty to question the similarity of the two statutes without a challenge
from the defendant that they were dissimilar, the court properly found
that the essential elements of the two statutes were substantially the
same at the hearing on the defendant’s motion to withdraw his guilty
pleas, as the essential elements of the two statutes both required that
the accused operate a motor vehicle while under the influence of intox-
icating liquor or drugs, and the level of blood alcohol content at or
above which a diver’s operation of a motor vehicle is criminalized is
identical under both statutes, and the court properly rejected the defen-
dant’s claims that the statutes were dissimilar on the basis of their
definitions of operation and motor vehicle, and the lack of a pretrial
alcohol education program under the Rhode Island statute.
2. The trial court imposed an illegal sentence on the defendant for operating
a motor vehicle while under the influence as a second offender: although
this court rejected the defendant’s claim that the trial court relied on
materially inaccurate information during sentencing, the three year sen-
tence imposed for operating a motor vehicle while under the influence
as a second offender exceeded the statutory maximum prescribed by
law of two years of incarceration.
Argued September 17, 2018—officially released January 1, 2019
Procedural History
Two part information charging the defendant, in the
first part, with the crimes of operating a motor vehicle
while under the influence of intoxicating liquor or drugs
and evading responsibility in the operation of a motor
vehicle, and with speeding and operating a motor vehi-
cle without minimum insurance, and, in the second part,
with previously having been convicted of operating a
motor vehicle while under the influence of intoxicating
liquor or drugs, brought to the Superior Court in the
judicial district of Windham, where the defendant was
presented to the court, J. Fischer, J., on guilty pleas
to the charges of operating a motor vehicle while under
the influence of intoxicating liquor or drugs and evading
responsibility in the operation of a motor vehicle, and to
previously having been convicted of operating a motor
vehicle while under the influence of intoxicating liquor
or drugs; judgment of guilty in accordance with the
pleas; thereafter, the state entered a nolle prosequi as
to the charges of speeding and operating a motor vehicle
without minimum insurance; subsequently, the court
denied the defendant’s motion to withdraw and vacate
his guilty pleas, and the defendant appealed to this
court. Reversed in part; further proceedings.
Jonathan R. Sills, for the appellant (defendant).
Margaret Gaffney Radionovas, senior assistant
state’s attorney, with whom were Bonnie R. Bentley,
senior assistant state’s attorney, and, on the brief, Anne
F. Mahoney, state’s attorney, for the appellee (state).
Opinion
SHELDON, J. The defendant, Mark Young, appeals
from the judgment of conviction rendered after his
guilty pleas to charges of operating a motor vehicle
while under the influence of intoxicating liquor or drugs
in violation of General Statutes § 14-227a (a) and evad-
ing responsibility in the operation of a motor vehicle
in violation of General Statutes § 14-224 (b) (3), and to
previously having been convicted of operating a motor
vehicle while under the influence of intoxicating liquor
or drugs in violation of § 14-227a (g). The defendant
claims that: (1) the court abused its discretion by deny-
ing his motion to withdraw and vacate guilty pleas pur-
suant to Practice Book §§ 39-26 and 39-27 because there
was no factual basis for his plea of guilty to § 14-227a
(a) and (g) for operating a motor vehicle while under
the influence as a second offender; and (2) the court
imposed an illegal sentence upon him for operating a
motor vehicle while under the influence as a second
offender that exceeded the statutory maximum for that
offense, and did so in an illegal manner because it relied
on materially inaccurate information concerning his
criminal record. We affirm the judgment of the trial
court in denying the defendant’s motion to withdraw,
but conclude that the sentence imposed on him exceeds
the statutory maximum for the offense of operating a
motor vehicle while under the influence as a second
offender. Accordingly, we vacate the defendant’s sen-
tences on all charges and remand this case to the trial
court for resentencing under the terms of the original
plea agreement, in accordance with the law.
The following facts and procedural history are rele-
vant to our resolution of the defendant’s claims. On
March 24, 2016, the Connecticut State Police arrested
the defendant for operating a motor vehicle while under
the influence of intoxicating liquor or drugs in violation
of § 14-227a (a), evading responsibility in the operation
of a motor vehicle in violation of § 14-224 (b) (3),1 speed-
ing in violation of General Statutes § 14-219 (c) (2)2 and
operating a motor vehicle without minimum insurance
in violation of General Statutes § 14-213b.3 On October
11, 2016, the state filed a part B Information pursuant
to Practice Book § 36-14,4 alleging that ‘‘[o]n . . .
[October 19, 2011], in the [Rhode Island] Superior Court
. . . [in] Providence, the defendant . . . was con-
victed of the offense of driving under the influence in
violation of . . . [Rhode Island] General Laws.’’ At a
hearing before the trial court on that same date, the
defendant indicated that he wished to withdraw his
prior pleas of not guilty and enter pleas of guilty under
an agreement with the state. The following exchange
ensued:
‘‘The Court: Okay. You understand that the prosecu-
tors here in Danielson Superior Court charge that you’ve
been formerly convicted, having committed the offense
of operating—driving under the influence on October,
19, 2011, in Rhode Island Superior Court in Providence
in violation of the Rhode Island general statutes. You
understand that.
‘‘The Defendant: Yes.
‘‘The Court: Okay.
‘‘The Clerk: Mark Young, on or about March 24th of
2016, you’re charged with operating under the influence
in violation of 14-227a. How do you plead, guilty or
not guilty?
‘‘The Defendant: Guilty.
‘‘The Clerk: And on that charge, you’re being charged
by the second part information as a subsequent offender
for operating under the influence in that you were pre-
viously convicted of this charge in Rhode Island Supe-
rior Court on October 19, 2011. To being a second
offender for operating under the influence how do you
plead, guilty or not guilty?
‘‘The Defendant: Guilty.
‘‘The Clerk: Anything else?
‘‘[The Prosecutor]: Evading.
‘‘The Clerk: And on or about March 24 of 2016, you’re
charged with evading responsibility in violation of § 14-
224 (b) (3). How do you plead, guilty or not guilty?
‘‘The Defendant: Guilty.’’
The state then recited the following facts regarding
the incident that led to the defendant’s arrest: ‘‘On
March 24, 2016, in the late evening hours, this defendant
was clocked at a hundred and three miles per hour in
a fifty mile an hour zone on Route 32 in Windham. He
was pulled over. [The] [o]fficer detected an odor of
alcohol. When he spoke with this defendant, who had
originally switched places with his passenger, but then
admitted that he was actually the driver—[he] failed
to perform [the] standard field sobriety test; admitted
consuming alcohol; [and] refused chemical tests. It was
learned during this time that the defendant had been
involved just a short time earlier in a motor vehicle
incident where he struck another vehicle from behind
causing minor damage, no injuries, but then fled the
scene. We have an agreement in this matter. I would
note that he had previously been convicted of operating
under the influence in Rhode Island in 2011.’’ The court
proceeded with the plea canvass, during which it asked
the defendant, ‘‘And you heard the state’s attorney
recite the facts which led to your arrest on the date in
question; also a prior conviction. Is that all pretty much
what happened?’’ The defendant answered in the affir-
mative.
The court accepted the pleas and the state informed
the court that the plea agreement called for ‘‘a total
effective sentence of three years, execution suspended
after five months—120 days of which are the mandatory
minimum for . . . operating under the influence—two
years’ probation and a $1,000 fine with numerous spe-
cial conditions . . . .’’ The court then set a date for
sentencing and ordered a presentence investigation. At
the next scheduled court date on December 14, 2016,
new counsel for the defendant entered his appearance
and filed a motion to withdraw the guilty pleas the
defendant had entered on October 11, 2016.
In his motion to withdraw, the defendant argued that
there was no factual basis for his guilty plea to the
charge of operating while under the influence as a sec-
ond offender, as alleged in the part B information,
because (1) his 2011 Rhode Island case did not result
in a conviction, (2) even if his Rhode Island case did
result in a conviction, that conviction was expunged
on December 19, 2016, between the date of his guilty
pleas in this case and the date of sentencing, so that it
could no longer be considered a conviction for sentence
enhancement purposes under General Statutes § 14-
227a (g), and (3) the essential elements of operating
under the influence while under the Rhode Island stat-
ute under which he was allegedly convicted, Rhode
Island General Laws § 31-27-2,5 were not substantially
the same as those of § 14-227a (a) (1) or (2), as required
for a conviction as a second offender based upon a
prior out-of-state conviction pursuant to § 14-227a (g).6
After a hearing on the motion to withdraw, the court
found that (1) the disposition of the defendant’s 2011
Rhode Island case was in fact a conviction, (2) the later
expungement of the defendant’s Rhode Island convic-
tion did not negate the fact that he had a prior conviction
for operating while under the influence at the time of
the conduct underlying his present conviction, and (3)
the essential elements of the statute under which the
defendant was convicted in Rhode Island, § 31-27-2, are
substantially the same as those of § 14-227a (a) (1)
and (2).7 Accordingly, the court denied the defendant’s
motion to withdraw. On June 26, 2017, the court sen-
tenced the defendant as follows: on the charge of
operating a motor vehicle while under the influence of
liquor or drugs as a second offender, the defendant was
sentenced to a term of three years of incarceration,
execution suspended after five months, 120 days of
which was a mandatory minimum, followed by two
years of probation; and on the charge of evading respon-
sibility, he was sentenced to a concurrent term of one
year incarceration, execution suspended after thirty
days, followed by two years of probation.8 This appeal
followed. Additional facts will be set forth as necessary.
I
The defendant first claims that the trial court improp-
erly denied his motion to withdraw because his guilty
plea to operating a motor vehicle while under the influ-
ence as a second offender was not supported by a
factual basis, and thus it was not entered voluntarily or
intelligently or in compliance with the rules of practice.
Specifically, he contends that there was no factual basis
that he had a prior conviction for operating while under
the influence to support his guilty plea to operating
while under the influence as a second offender in viola-
tion of § 14-227a (a) and (g). We disagree.
‘‘As a preliminary matter, we set forth the applicable
standard of review. It is well established that [t]he bur-
den 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 with-
draw 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 conclu-
sion 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. . . . We further observe that there is no language
in Practice Book §§ 39-26 and 39-27 imposing an affir-
mative duty upon the court to conduct an inquiry into
the basis of a defendant’s motion to withdraw his guilty
plea.’’ (Emphasis in original; citation omitted; internal
quotation marks omitted.) State v. Simpson, 329 Conn.
820, 836–37, 189 A.3d 1215 (2018).
‘‘Furthermore, in assessing the adequacy of the trial
court’s consideration of a motion to withdraw a guilty
plea, we do not examine the dialogue between defense
counsel and the trial court . . . in isolation but, rather,
evaluate it in light of other relevant factors, such as
the thoroughness of the initial plea canvass.’’ (Internal
quotation marks omitted.) Id., 838.
Practice Book § 39-27 provides in relevant part: ‘‘The
grounds for allowing the defendant to withdraw his or
her plea of guilty after acceptance are as follows . . .
(5) there was no factual basis for the plea . . . .’’ ‘‘A
factual basis exists where the facts before the court
are sufficient to establish each and every element of
the crime charged.’’ State v. Pena, 16 Conn. App. 518,
523, 548 A.2d 445, cert. denied, 209 Conn. 830, 552 A.2d
1217 (1988). ‘‘In determining whether a factual basis
exists, the court may consider the facts recited by the
state’s attorney as well as any other facts properly sub-
mitted to the court which support a conviction.’’ Id.Moreover, ‘‘[a] court is permitted to rely on a defen-
dant’s responses during a plea canvass.’’ State v. Han-
son, 117 Conn. App. 436, 449, 979 A.2d 576 (2009), cert.
denied, 295 Conn. 907, 989 A.2d 604 (2010), cert. denied,
562 U.S. 986, 131 S. Ct. 425, 178 L. Ed. 2d. 331 (2010).
‘‘The [trial] court is under no constitutionally imposed
duty to establish a factual basis for a guilty plea prior
to its acceptance unless the [trial] judge is put on notice
that there may be some need for such an inquiry . . .
A factual basis inquiry . . . is merely one way of satis-
fying the constitutional requirement that a plea be vol-
untary and intelligent.’’ (Citations omitted; internal
quotation marks omitted.) Paulsen v. Manson, 203
Conn. 484, 490–91, 525 A.2d 1315 (1987).
‘‘[T]he constitutional stricture that a plea of guilty
must be made knowingly and voluntarily . . . requires
not only that there be a voluntary waiver during a plea
canvass of the right to a jury trial, the right of confronta-
tion and the right against self-incrimination, but also
that the defendant must be aware of and have an under-
standing of all of the elements of the crime or crimes
with which he is charged. . . . [T]he plea could not be
voluntary in the sense that it constituted an intelligent
admission that he committed the offense unless the
defendant received real notice of the true nature of
the charge against him, the first and most universally
recognized requirement of due process.’’ (Internal quo-
tation marks omitted.) State v. Heyliger, 114 Conn. App.
193, 197, 969 A.2d 194 (2009).
The purpose of establishing a factual basis for a
defendant’s guilty plea is to ensure that he has notice
of the charges to which he is pleading. To establish a
factual basis for the defendant’s plea to operating a
motor vehicle while under the influence as a second
offender, the state provided the court with the part B
information alleging his prior conviction, which the
court and its clerk read aloud to the defendant, speci-
fying the date of his prior conviction, the town in which
the conviction was entered, and the name of the prior
charge of which he was convicted, to wit: ‘‘driving under
the influence.’’ After being informed of these allega-
tions, the defendant indicated to the court that he under-
stood the allegations and was pleading guilty on the
basis of them. He admitted that he was a second
offender when he was so asked by the court clerk, and
agreed to the state’s factual recitation, in which the
prosecutor expressly stated that he had previously been
convicted of operating while under the influence in
Rhode Island. The detail in the part B information that
was brought to the defendant’s attention three times
during his plea canvass was sufficient to give the defen-
dant notice of the allegations concerning his prior con-
viction, and thus to ensure that his plea to the part B
information was voluntary and intelligent.
Although the plea canvass alone furnished an ade-
quate basis for the court’s conclusion that his plea to
the part B information was supported by a sufficient
factual basis for the denial of his motion to withdraw,
the court heard the defendant fully on his motion and
made detailed factual findings as to each claim pre-
sented in that motion. Because he reasserts those
claims on appeal, we address them each in turn.
A
First, the defendant claims that the final disposition
of his Rhode Island case was not a conviction for
operating while under the influence on the basis of
which he could be convicted as a second offender in
Connecticut. Specifically, he argues that (1) the Rhode
Island criminal complaint is unclear as to the nature of
his final disposition, making it impossible to determine
if that case actually resulted in a conviction, (2) under
his Rhode Island disposition, which was ordered after
he entered a plea of nolo contendere, he was required
to complete several special conditions, suggesting that
he must have been placed on probation in order for
those conditions to be monitored, and thereby raising
the possibility that, upon successful completion of his
probation, he may have been entitled not to have his
disposition considered a conviction under Rhode Island
law, and (3) the record of his alleged Rhode Island
conviction was expunged after he pleaded guilty to the
charges in Connecticut, but before he was sentenced on
those pleas, assertedly making the expunged conviction
unusable as a prior conviction under § 14-227a (g). We
do not agree.
The following additional facts are necessary for our
disposition of these claims. In support of his motion to
withdraw, the defendant submitted a copy of the crimi-
nal complaint from the Rhode Island District Court in
Providence to which he had pleaded nolo contendere
on October 19, 2011. The court examined that document
at the hearing on the motion to withdraw. The document
indicates that the defendant was initially charged with
one count of violating ‘‘[Rhode Island] General Laws
§ 31-27-2 D1, DUI/Drugs/Alcohol/1st Offense-B.A.C.
unknown,’’ but later, on October 19, 2011, that initial
charge was ‘‘amended to .08’’ and a ‘‘nolo plea’’ was
entered. Under the section of the form titled ‘‘sentence
imposed,’’ the following handwritten entry appears:
‘‘$100, Loss—30 day, CS—10 hours, alcohol counseling,
costs, fees, assessments.’’ In its findings of fact and
conclusions of law, the court found that the court’s
disposition in Rhode Island constituted a conviction for
operating while under the influence in violation of § 31-
27-2 because ‘‘there’s a hundred dollar fine based on
what I see here. It provides for a jail sentence. That’s
all the same as here. And so there was a conviction
. . . .’’ The court further found that the expungement
of that conviction came after the date of the defendant’s
challenged guilty plea in Connecticut. Therefore, it
found that the expungement did not affect the availabil-
ity of the defendant’s prior conviction as a valid basis
for sentencing him as a second offender. Finally, the
court concluded that the essential elements of the
Rhode Island statute under which he was previously
convicted were substantially the same as the essential
elements of § 14-227a. Accordingly, the court denied
the defendant’s motion to withdraw.
The defendant first contends that the trial court erred
in finding that his plea of nolo contendere in Rhode
Island was a conviction because the criminal complaint
he proffered to the court was unclear as to the sentence
he received for that offense. As an initial matter, we
note that ‘‘our appellate courts have determined that
the trial court’s conclusions as to the meaning and effect
of documents are best characterized as conclusions of
law and are therefore subject to plenary review.’’ State
v. Tenay, 156 Conn. App. 792, 809–10 n.11, 114 A.3d
931 (2015). Rhode Island General Laws § 31-27-2, titled
‘‘Driving under influence of liquor or drugs,’’ provides
in relevant part: ‘‘(a) Whoever drives or otherwise oper-
ates any vehicle in the state while under the influence
of any intoxicating liquor . . . shall be guilty of a mis-
demeanor . . . .
‘‘(b) (1) Any person charged under subsection (a),
whose blood alcohol concentration is eight one-hun-
dredths of one percent (.08%) . . . shall be guilty of
violating subsection (a) . . . .
‘‘(d) (1) (i) Every person found to have violated sub-
section (b) (1) shall be sentenced as follows: for a first
violation whose blood alcohol concentration is eight
one-hundredths of one percent (.08%) . . . shall be
subject to a fine of not less than one hundred dollars
($100) . . . shall be required to perform ten (10) . . .
hours of public community restitution, and/or shall be
imprisoned for up to one year . . . and his or her driv-
er’s license shall be suspended for thirty (30) days
. . . .’’ Section 31-27-2 (f) provides in relevant part: ‘‘(2)
Persons convicted under the provisions of this chapter
shall be required to attend a special course on driving
while intoxicated or under the influence of a controlled
substance, and/or participate in an alcohol or drug treat-
ment program . . . .’’
We first note that § 31-27-2, although appearing in
the Motor Vehicle Code, defines the offense of driving
while under the influence of liquor or drugs as a misde-
meanor, clearly indicating that it is a criminal offense
subject to criminal penalties. When comparing the sen-
tence imposed by the Rhode Island court, as it was
recorded on the defendant’s criminal complaint, to the
criminal penalties set forth in § 31-27-2, it appears that
the Rhode Island court gave the defendant the minimum
sentence he could have received under the statute for
a first violation. Part of the handwritten entry on the
complaint reads ‘‘Loss—30,’’ which can reasonably be
interpreted to mean loss of driver’s license for 30 days,
corresponding to the mandatory minimum license sus-
pension required upon conviction under that statute.
Another handwritten entry on the complaint reads,
‘‘CS—10,’’ which can likewise reasonably be interpreted
to mean the imposition of ten hours of public commu-
nity restitution upon the defendant, with the letters
‘‘CS’’ signifying ‘‘community service,’’ as public commu-
nity restitution was formerly denominated under the
statute before it was amended.9 Ten hours is the mini-
mum term of public community restitution required
upon conviction under § 31-27-2 (d) (1) (i).
The defendant argues that it is not clear from reading
the complaint whether the handwritten entry of ‘‘$100’’
on that document means the defendant received a $100
fine or some other cost imposed in connection with
the case since it is not explicitly labeled as a fine or
otherwise. We agree with the trial court’s conclusion
that the $100 in the ‘‘sentence imposed’’ section of the
complaint was a fine because that amount is equal to
the mandatory minimum fine imposable under the stat-
ute, all other mandatory minimum requirements are
accounted for in other parts of the handwritten entry
under ‘‘sentence imposed,’’ and the order requiring that
‘‘costs, fees, and assessments’’ be paid as well would
be redundant if the $100 entry reflected an order to pay
court costs rather than a fine. Finally, the defendant was
ordered to attend alcohol treatment, another mandatory
sanction imposed on those convicted under the statute.
Therefore, we conclude that the Rhode Island criminal
complaint indicates that the defendant was sentenced
to the mandatory minimum sentence of a $100 fine, ten
hours of public community restitution, thirty day loss
of driver’s license, alcohol counseling, costs, fees, and
assessments. We further conclude that nothing about
this sentence suggests that the final disposition of the
case was not a conviction. Rhode Island General Laws
and Connecticut General Statutes both consider a plea
of nolo contendere followed by the payment of a fine
to be a conviction. See State v. Palkimas, 116 Conn.
App. 788, 795, 977 A.2d 705 (2009) (nolo contendere
plea has same effect as guilty plea); see also General
Statutes § 14-1 (22) and R.I. Gen. Laws § 31-10.3-3
(11) (2010).
The defendant next argues that because the afore-
mentioned special conditions were ordered by the
court, they must have been subject to some period of
probationary monitoring and supervision and, thus, that
the Rhode Island disposition should be interpreted as
a plea of nolo contendere followed by probation, which,
if successfully completed, is not considered a convic-
tion under Rhode Island General Laws pursuant to § 12-
18-3. We conclude, however, that the defendant has not
proved that the disposition of his operating under the
influence charge in Rhode Island resulted in the imposi-
tion of a probationary sentence upon him, much less
that he successfully completed such a sentence, and
thus he never became entitled not to have his plea and
resulting sentence considered a criminal conviction.
Rhode Island General Laws § 12-18-3, provides, in
relevant part: ‘‘(a) Whenever any person . . . shall
plead nolo contendere, and the court places the person
on probation pursuant to § 12-18-1, then upon the com-
pletion of the probationary period, and absent a viola-
tion of the terms of the probation, the plea and
probation shall not constitute a conviction for any pur-
pose. Evidence of a plea of nolo contendere followed
by a period of probation, completed without violation
of the terms of the probation, may not be introduced
in any court proceeding, except that records may be
furnished to a sentencing court following the conviction
of an individual for a crime committed subsequent to
the successful completion of probation on the prior
offense.’’ ‘‘Section 12–18–3 is a statutory limitation on
the effects of a plea of nolo contendere followed by
probation. Section 12–18–3 (a) clearly and unambigu-
ously mandates that, when a person enters a plea of nolo
contendere to a . . . charge and receives a sentence
of probation, the plea and probation shall not constitute
a conviction for any purpose.’’ (Emphasis omitted; inter-
nal quotation marks omitted.) State v. Poulin, 66 A.3d
419, 425 (R.I. 2013).
Section 31-27-2 (f) provides in relevant part: ‘‘(1)
There is established an alcohol and drug safety unit
within the division of motor vehicles to administer an
alcohol safety action program. The program shall pro-
vide for placement and follow-up for persons who are
required to pay the highway safety assessment. . . .
(2) Persons convicted under the provisions of this chap-
ter shall be required to attend a special course on driving
while intoxicated or under the influence of a controlled
substance, and/or participate in an alcohol or drug treat-
ment program. . . . A copy of any violation under this
section shall be forwarded by the court to the alcohol
and drug safety unit. In the event that persons convicted
under the provisions of this chapter fail to attend and
complete the above course or treatment program, as
ordered by the judge, then the person may be brought
before the court, and after a hearing as to why the order
of the court was not followed, may be sentenced to jail
for a period not exceeding one year.’’
There is nothing on the face of the criminal complaint
that indicates that the defendant was sentenced to a
period of probation following his nolo contendere plea
in Rhode Island, and the defendant presented no evi-
dence from any source, including his own testimony,
to the contrary. In addition, the fact that the court
sentenced the defendant to several special conditions
is not intrinsically indicative of a probationary sentence
because the statute criminalizing driving under the
influence in Rhode Island creates an agency within the
division of motor vehicles to supervise such conditions.
Moreover, the mandatory minimum sentencing provi-
sions in § 31-27-2 do not provide for a probationary
sentence. We also note that the defendant presented
no evidence that he was ever on probation in Rhode
Island, much less that he satisfactorily completed such
a sentence without a violation as required by § 12-18-
3. In short, we conclude that the complaint does not
indicate that the defendant was sentenced to probation
after his nolo contendere plea in Rhode Island and,
thus, that § 12-18-3 is inapplicable to his resulting con-
viction for driving under the influence.
Last, the defendant argues that since the Rhode Island
conviction was expunged on December 19, 2016, it
could no longer be used to enhance the penalty in the
present case. The defendant contends that a contrary
finding would bring about the unjust result of convicting
him as a second offender although he had no record
of a previous conviction at the time he was sentenced.
We disagree.
Section 14-227a (g) provides in relevant part: ‘‘Any
person who violates any provision of subsection (a) of
this section shall . . . (2) for conviction of a second
violation within ten years after a prior conviction for
the same offense . . . (B) be imprisoned not more than
two years, one hundred twenty consecutive days of
which may not be suspended or reduced in any manner,
and sentenced to a period of probation . . . .’’ ‘‘[T]he
ten year rule applies to the length of time between the
most recent prior conviction of operating under the
influence and the conduct giving rise to the present
violation of § 14-227a, not the present conviction itself.’’
(Emphasis in original.) State v. Tenay, supra, 156 Conn.
App. 799 n.5. ‘‘An interpretation of [§ 14-227a (g)] that
focuses on the time of conviction rather than the time
of violation could have bizarre and ineffective conse-
quences. If eligibility for the enhanced penalty were to
depend upon the timing of conviction, then two offend-
ers who were arrested on the same day for their [sec-
ond] offense and who previously on the same dates had
been convicted . . . before of operating a motor vehi-
cle while under the influence of intoxicating liquor or
drugs could be subject to disparate penalties if one of
the offenders were successful in strategically jockeying
for a delay in his trial.’’ (Footnote omitted.) State v.
Burns, 236 Conn. 18, 26, 670 A.2d 851 (1996).
It is, therefore, irrelevant whether the defendant’s
Rhode Island conviction was expunged at the time of
his plea, his motion to withdraw, or his sentencing. The
relevant time for sentence enhancement purposes was
the time of the defendant’s criminal conduct, March 24,
2016. It is uncontested that the Rhode Island conviction
had not been expunged by that time. We, thus, conclude
that the subsequent expungement of that conviction
does not affect the court’s consideration of the convic-
tion for the purpose of imposing an enhanced penalty
upon him.10
B
The defendant next claims that the court erred
because insufficient evidence was presented to the trial
court at the time of his guilty pleas to establish that
the essential elements of Rhode Island General Laws
§ 31-27-2 are substantially the same as those of § 14-
227a (a), and thus that a prior conviction under that
statute can properly be used as a basis for counting
him as a second offender in Connecticut. Because such
a finding was never made at the time of his guilty plea,
the defendant claims that his plea of guilty as a second
offender lacks a factual basis. We disagree.
The defendant first argues that the part B information
and the language used by the state in the plea canvass
to establish the factual basis for his alleged prior convic-
tion were insufficient because they lacked the specific-
ity required for the court to find that the essential
elements of the two statutes were substantially the
same. He argues that the part B information should
have referenced a specific Rhode Island statutory provi-
sion and subsection of such section to enable the court
to make the requisite comparison. He further argues
that the trial court failed to make that comparison or
to place such a finding on the record.
As our Supreme Court stated in Paulsen, however,
‘‘[t]he [trial] court is under no constitutionally imposed
duty to establish a factual basis for a guilty plea prior
to its acceptance unless the [trial] judge is put on notice
that there may be some need for such an inquiry . . .
A factual basis inquiry . . . is merely one way of satis-
fying the constitutional requirement that a plea be vol-
untary and intelligent.’’ (Citations omitted; internal
quotation marks omitted.) Paulsen v. Mansen, supra,
203 Conn 490–91. In State v. Greene, 274 Conn. 134,
149, 874 A.2d 750 (2005), cert. denied, 548 U.S. 926, 126
S. Ct. 2981, 165 L. Ed. 2d. 988 (2006), the defendant
challenged the adequacy of the factual basis of his pleas
that were subsequently used against him in a trial with
similar factual allegations. Our Supreme Court con-
cluded that the trial court had no knowledge at the
time it accepted the pleas that the state would seek to
introduce them at a subsequent trial, so it was under
no duty to question the adequacy of the factual basis.
Id. Here, as in Greene, the trial court was under no duty
to question the similarity of the two statutes at issue
without a challenge from the defendant that they were
dissimilar. This is consistent with the purpose of estab-
lishing a factual basis for the plea, which is to put
the defendant on notice of the charges to which he is
pleading so that he does so voluntarily and intelligently.
The court, however, did make a finding that the essen-
tial elements of the two statutes were substantially the
same at the hearing on the motion to withdraw. The
defendant argued that such elements were not substan-
tially the same because (1) the definitions of ‘‘opera-
tion’’ in the two states are not identical, (2) the
definitions of ‘‘motor vehicle’’ in the two states are not
identical, and (3) Rhode Island does not offer an alcohol
education program for first offenders. We disagree.
‘‘The issue of whether the elements of the [Rhode
Island] and Connecticut statutes under which the defen-
dant was convicted were substantially the same calls
for the comparison and interpretation of those statutes,
which is a question of law.’’ State v. Commins, 276
Conn. 503, 513, 886 A.2d 824 (2005), overruled on other
grounds by State v. Elson, 311 Conn. 726, 91 A.3d 862(2014). Therefore, our review is plenary. Duperry v.
Solnit, 261 Conn. 309, 318, 803 A.2d 287 (2002). Section
14-227a (g) prescribes an enhanced penalty for
operating a motor vehicle while under the influence for
any person who has a prior ‘‘conviction in any other
state of any offense the essential elements of which are
determined by the court to be substantially the same
as subdivision (1) or (2) or subsection (a) of this sec-
tion . . . .’’
Section 14-227a (a) provides in relevant part: ‘‘A per-
son commits the offense of operating a motor vehicle
while under the influence of intoxicating liquor or any
drug or both if such person operates a motor vehicle
(1) while under the influence of intoxicating liquor or
any drug or both, or (2) while such person has an ele-
vated blood alcohol content. For the purposes of this
section, ‘elevated blood alcohol content’ means a ratio
of alcohol in the blood of such person that is eight-
hundredths of one per cent or more of alcohol by weight
. . . .’’ Rhode Island General Laws § 31-27-2 provides:
‘‘(a) Whoever drives or otherwise operates any vehicle
in the state while under the influence of any intoxicating
liquor . . . shall be guilty of a misdemeanor . . . .
(b)(1) Any person charged under subsection (a) . . .
whose blood alcohol concentration is eight one-hun-
dredths of one percent (.08%) or more by weight . . .
shall be guilty of violating subsection (a) . . . . Proof
of guilt under this section may also be based on evi-
dence that the person charged was under the influence
of intoxicating liquor, drugs, toluene, or any controlled
substance defined in chapter 28 of title 21, or any combi-
nation of these, to a degree that rendered the person
incapable of safely operating a vehicle. . . .’’ Read
together, the essential elements of § 14-227a (a) (1)
and (2) and the Rhode Island statutes are not only
substantially the same, they are identical, namely, that
the accused must (1) operate a motor vehicle (2) while
he is under the influence of intoxicating liquor or drugs.
Under both statutes, the identical level of blood alcohol
content at or above which a driver’s operation of a
motor vehicle is criminalized is .08 percent.
The defendant first argues that these essential ele-
ments are not substantially the same because the defini-
tion of operation differs between the two statutes.
Specifically, he argues that Connecticut law requires
an intentional act to prove operation, where the Rhode
Island’s statute is silent as to the mens rea required,
which creates the potential that certain conduct could
be considered operation under Rhode Island law that
would not be considered operation in Connecticut.
‘‘Our case law provides that [a] person operates a
motor vehicle within the meaning of [§ 14-227a], when
in the vehicle he intentionally does any act or makes
use of any mechanical or electrical agency which alone
or in sequence will set in motion the motive power of
the vehicle.’’ (Internal quotation marks omitted.) State
v. Bereis, 117 Conn. App. 360, 366, 978 A.2d 1122 (2009).
‘‘Nothing in our definition of operation requires the
vehicle to be in motion or its motor to be running. . . .
The act of inserting the key into the ignition and the
act of turning the key within the ignition are preliminary
to starting the vehicle’s motor. Each act, in sequence
with other steps, will set in motion the motive power
of the vehicle. . . . Each act therefore constitutes
operation of the vehicle under the definition set forth
in [State v.] Swift, [125 Conn. 399, 6 A.2d 359 (1939)].
See, e.g., State v. Jones, 2 Conn. Cir. Ct. 605, 607, 203
A.2d 447 (1964) (attempting to start engine constitutes
operation, even if motor fails to catch).’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Haight,
279 Conn. 546, 552–53, 903 A.2d 217 (2006).
Rhode Island General Laws § 31-1-17 (d) provides
that the term ‘‘ ‘[o]perator’ means every person, other
than a chauffeur, who drives or is in actual physical
control of a motor vehicle upon a highway or who is
exercising control over or steering a vehicle being
towed by a motor vehicle . . . .’’ In Rhode Island,
operating a motor vehicle has been interpreted as
requiring more ‘‘than simple possession of a motor vehi-
cle.’’ State v. Capuano, 591 A.2d 35, 37 (R.I. 1991). In
Capuano, the Rhode Island Supreme Court found that
a defendant who was ‘‘sitting on a motorcycle with its
engine running, headlight on, and kickstand up’’ did not
operate a motor vehicle for the purposes of § 31-27-2 .
Id., 36–37.
The omission of language clarifying the intent require-
ment in the Rhode Island statute does not render the
two statutes dissimilar because Rhode Island does not
criminalize conduct that is less active or dangerous if
performed while under the influence than that which
Connecticut defines as operation. Indeed, the conduct
found insufficient to constitute operation in Rhode
Island in Capuano would likely be considered an act
which alone or in sequence would set in motion the
motive power of a vehicle, as required to establish oper-
ation in Connecticut. Therefore, we conclude that the
essential element of operation is substantially the same
under both statutes.
The defendant next argues that the essential elements
of the statutes at issue are not substantially the same
because the definitions of motor vehicle are not identi-
cal in the two statutes. Specifically, the defendant notes
that certain types of vehicles are excluded from the
definition of motor vehicle under Connecticut law that
are not expressly excluded from the parallel definition
under Rhode Island law. General Statutes § 14-1 defines
motor vehicle as: ‘‘(58) any vehicle propelled or drawn
by any nonmuscular power, except aircraft, motor
boats, road rollers, baggage trucks used about railroad
stations or other mass transit facilities, electric battery-
operated wheel chairs when operated by persons with
physical disabilities at speeds not exceeding fifteen
miles per hour, golf carts operated on highways solely
for the purpose of crossing from one part of the golf
course to another, golf-cart-type vehicles operated on
roads or highways on the grounds of state institutions
by state employees, agricultural tractors, farm imple-
ments, such vehicles as run only on rails or tracks, self-
propelled snow plows, snow blowers and lawn mowers,
when used for the purposes for which they were
designed and operated at speeds not exceeding four
miles per hour, whether or not the operator rides on
or walks behind such equipment, motor-driven cycles
as defined in section 14-286, special mobile equipment
as defined in section 14-165, mini-motorcycles, as
defined in section 14-289j, electric bicycles and any
other vehicle not suitable for operation on a highway.’’
Rhode Island General Laws § 31-1-3 defines motor
vehicle as ‘‘every vehicle that is self-propelled or pro-
pelled by electric power obtained from overhead trolley
wires, but not operated upon rails, except vehicles
moved exclusively by human power, an EPAMD and
electric motorized bicycles as defined in subsection
(g) of this section, and motorized wheelchairs.’’ Both
statutes require that the motor vehicle be propelled by
some force other than human power and, although the
statutes vary in their exemptions of certain vehicles,
the overall effect of the definitions is to criminalize
the operation of automotive vehicles that could pose a
danger to the public if operated while under the influ-
ence of liquor or drugs. Therefore, we conclude that
the definitions of motor vehicle, which are a common
essential element of both statutes, are substantially
the same.
The defendant’s final argument, that Rhode Island’s
lack of a pretrial alcohol education program renders
the statutes at issue dissimilar, is also unpersuasive.
‘‘General Statutes § 54-56g establishes a pretrial alcohol
education program [in lieu of a possible conviction for
operating a motor vehicle while under the influence of
intoxicating liquor] for persons charged with a violation
of [General Statutes] § 14-227a. Applications for partici-
pation in this program may be granted or denied at the
discretion of the trial court.’’ (Internal quotation marks
omitted.) State v. DiPaolo, 88 Conn. App. 53, 55 n. 1,
868 A.2d 98, cert. denied, 273 Conn. 935, 875 A.2d 544(2005). The existence of an alcohol education program
is irrelevant to the similarity of the essential elements
of the offense of operating under the influence. The
discretionary pretrial diversion program impacts the
disposition of the matter and is, therefore, unrelated to
the essential elements of the offense itself. Therefore,
we also reject this claim.
For the foregoing reasons, we conclude that the
Rhode Island conviction was a qualifying conviction for
the purposes of sentence enhancement under § 14-227a
(g). Consequently, we conclude that the court did not
abuse its discretion in denying the defendant’s motion
to withdraw and vacate because it correctly applied the
law and reasonably could have reached the conclusion
that it did.
II
The defendant next claims that the manner in which
he was sentenced was illegal and that the three year
sentence imposed upon him for operating a motor vehi-
cle while under the influence as a second offender was
illegal. Specifically, he claims that the court relied on
materially inaccurate information during sentencing,
that he had been previously convicted of a substantially
similar offense, and that his sentence on the charge of
operating while under the influence as a second
offender exceeds the maximum two year sentence
allowed by law. We agree that the sentence imposed
exceeds the statutory maximum. The following addi-
tional facts are necessary to our review of these claims.
On June 26, 2017, the court sentenced the defendant
as follows: on the charge of operating a motor vehicle
while under the influence as a second offender, the
defendant was sentenced to a term of three years of
incarceration, execution suspended after five months,
120 days of which is a mandatory minimum, followed
by two years of probation, and on the charge of evading
responsibility, he was sentenced to a term of one year
incarceration, execution suspended after thirty days,
followed by two years of probation. The court ordered
these sentences to be served concurrently.
Practice Book § 43-22 provides that ‘‘[t]he judicial
authority may at any time correct an illegal sentence
or other illegal disposition, or it may correct a sentence
imposed in an illegal manner or any other disposition
made in an illegal manner.’’ ‘‘An illegal sentence is
essentially one which either exceeds the relevant statu-
tory maximum limits, violates a defendant’s right
against double jeopardy, is ambiguous, or is internally
contradictory. . . . We previously have noted that a
defendant may challenge his or her criminal sentence
on the ground that it is illegal by raising the issue on
direct appeal or by filing a motion pursuant to . . .
§ 43–22 with the judicial authority, namely, the trial
court. . . . [B]oth the trial court, and this court, on
appeal, have the power, at any time, to correct a sen-
tence that is illegal. . . . [T]he issue is one of law, and
we afford it plenary review.’’ (Citations omitted; internal
quotation marks omitted.) State v. Ruiz, 173 Conn. App.
608, 617, 164 A.3d 837 (2017).
A
The defendant claims that his sentence was imposed
in an illegal manner because the court relied on materi-
ally inaccurate information during sentencing, specifi-
cally, that the defendant had a previous conviction for
a substantially similar offense. On that score, the defen-
dant repeats the same arguments that he advanced in
support of his motion to withdraw and that form the
basis of his appeal from the denial of the same, namely,
that his October 19, 2011 Rhode Island disposition was
never a conviction and that, in the alternative, it was
not a conviction at the time of sentencing because it
had been expunged, and that the essential elements of
the statutes are not substantially the same as required
by § 14-227a (g). We again reject these claims.
‘‘A sentence is invalid if it is imposed in an illegal
manner . . . . Within the definition of sentences
imposed in an illegal manner, our jurisprudence
includes sentences which violate [a] defendant’s right
. . . to be sentenced by a judge relying on accurate
information. . . . To prevail on a claim that a sentence
is invalid because a sentencing court relied on inaccu-
rate information, a defendant must show . . . that the
judge relied on that information . . . . A sentencing
court demonstrates actual reliance on misinformation
when the court gives explicit attention to it, [bases] its
sentence at least in part on it, or gives specific consider-
ation to the information before imposing sentence.’’
(Emphasis omitted; citations omitted; internal quota-
tion marks omitted.) State v. Martin M., 143 Conn. App.
140, 144–45, 70 A.3d 135, cert. denied, 309 Conn. 919,
70 A.3d 41 (2013).
In the instant matter, it is clear that the court, in
imposing sentence, relied on material information that
the defendant had previously been convicted of a sub-
stantially similar offense because it sentenced the
defendant on the charge of operating while under the
influence as a second offender. However, we conclude
that the information relied on by the court, that the
defendant had been convicted of a substantially similar
offense, was accurate information. As analyzed in depth
in part I of this opinion, the disposition in the 2011
Rhode Island case was a conviction for a substantially
similar offense and the subsequent expungement did
not affect the availability of that conviction for sentenc-
ing enhancement purposes because it was in effect at
the relevant time of the defendant’s criminal conduct
in this case. Therefore, the defendant’s claim that he
was sentenced in an illegal manner must also fail.
B
Finally, the defendant claims that the three year sen-
tence imposed by the trial court for operating a motor
vehicle while under the influence as a second offender
exceeded the statutory maximum prescribed by law.
The state concedes that the challenged sentence was
illegal. We agree.
Section 14-227a (g) provides, in relevant part, that
any person who violates subsection (a) shall ‘‘(2) for
conviction of a second violation within ten years after
a prior conviction for the same offense . . . (B) be
imprisoned not more than two years, one hundred
twenty consecutive days of which may not be sus-
pended or reduced in any manner, and sentenced to a
period of probation . . . .’’ Section 14-224 (g) (2) pro-
vides: ‘‘Any person who violates the provisions of subdi-
vision (3) of subsection (b) or subsection (c) of this
section shall be fined not less than seventy-five dollars
or more than six hundred dollars or be imprisoned not
more than one year or be both fined and imprisoned,
and for any subsequent offense shall be fined not less
than one hundred dollars or more than one thousand
dollars or be imprisoned not more than one year or be
both fined and imprisoned.’’ Although the total effective
sentence as agreed upon by both parties would be legal
if the maximum sentence were given for both operating
while under the influence as a second offender and
evading responsibility, respectively, to run consecu-
tively, the current sentence of three years of incarcera-
tion on the § 14-227a charge exceeds the maximum
allowable sentence of two years of incarceration.
Because the defendant’s original plea agreement
included an aggregate sentence for both operating while
under the influence as a second offender and evading
responsibility, although we find error only as to the
former, we must vacate the sentences as to both charges
and remand for resentencing pursuant to the aggregate
package theory. See State v. Raucci, 21 Conn. App. 557,
562, 575 A.2d 234, cert. denied, 215 Conn. 817, 576 A.2d
546 (1990) (proper remedy when defendant appeals
punishment pursuant to multicount conviction is to
vacate sentence in its entirety). Accordingly, we vacate
the defendant’s sentences on all charges and remand
the case to the trial court for resentencing under the
terms of the original plea agreement and in accordance
with law.
The judgment is reversed only as to the defendant’s
sentence and the case is remanded for further proceed-
ings according to law. The judgment is affirmed in all
other respects.
In this opinion the other judges concurred.
1
General Statutes § 14-224 provides in relevant part: ‘‘(b) (3) Each operator
of a motor vehicle who is knowingly involved in an accident that causes
. . . damage to property shall at once stop and render such assistance as
may be needed and shall give such operator’s name, address and operator’s
license number and registration number to the owner of the . . . damaged
property . . . .
***
‘‘(g) (2) Any person who violates the provisions of subdivision (3) of
subsection (b) . . . shall be fined not less than seventy-five dollars or more
than six hundred dollars or be imprisoned not more than one year or be
both fined and imprisoned . . . .’’
2
General Statutes § 14-219 (c) provides in relevant part: ‘‘Any person who
. . . operates a motor vehicle . . . (2) on any other highway at a rate of
speed greater than sixty miles per hour but not greater than eighty-five
miles per hour, shall be fined not less than one hundred dollars nor more
than one hundred fifty dollars . . . .’’
3
General Statutes § 14-213b provides in relevant part: ‘‘(a) No owner of
any private passenger motor vehicle . . . registered or required to be regis-
tered in this state may operate . . . such vehicle without the security
required by section 38a-371 or with security insufficient to meet the minimum
requirements of said section, or without any other security requirements
imposed by law, as the case may be. . . .
‘‘(b) Any person convicted of violating any provision of subsection (a) of
this section shall be fined not less than one hundred dollars or more than
one thousand dollars . . . .’’
4
‘‘Where the information alleges, in addition to the principal offense
charged, a former conviction or convictions, such information shall be in
two separate parts, each signed by the prosecuting authority. In the first
part, the particular offense with which the accused is charged shall be set
out, and in the other part the former conviction or convictions shall be
alleged. In alleging the former conviction, it is sufficient that the information
allege the date when, the town or city where, and the court wherein such
conviction was obtained and the crime of which the defendant was con-
victed, all of which may be stated in accordance with the provisions of
Section 36-13.’’ Practice Book § 36-14.
5
Hereinafter, unless otherwise indicated, all references to § 31-27-2 in this
opinion are to the 2010 revision of the statute.
6
The motion to withdraw included a request to withdraw guilty pleas to
both operating a motor vehicle while under the influence as a second
offender and evading responsibility in the operation of a motor vehicle. No
separate grounds were raised in the motion to withdraw with respect to
evading responsibility, but both charges were included in the original plea
agreement that was negotiated with the state and, thus, both were also
included in the motion to withdraw.
7
The defendant also raised a claim of ineffective assistance of counsel
in his motion to withdraw but abandoned that claim at the May 19, 2017
hearing on the motion.
8
The state entered nolle prosequis on the charges of speeding in violation
of § 14-219 (c) (2) and operating a motor vehicle without minimum insurance
in violation of § 14-213b at sentencing on June 26, 2017.
9
Rhode Island General Laws § 31-27-21 provides: ‘‘The general assembly
declares that the words ‘public community service’ which appear throughout
this chapter shall now be substituted with and referred to as ‘public commu-
nity restitution.’ ’’
10
We note in passing that nothing about the fact that the conviction was
expunged indicates that the Rhode Island disposition was not a conviction
because Rhode Island provides for expungement for ‘‘[a]ny person who is
a first offender . . . for a felony or misdemeanor . . . provided, that no
person who has been convicted of a crime of violence shall have his or
her records and records of conviction expunged; and provided, that all
outstanding court-imposed or court-related fees, fines, costs, assessments,
charges, and/or any other monetary obligations have been paid, unless such
amounts are reduced or waived by order of the court.’’ R.I. Gen. Laws § 12-
1.3-2 (a) (2010).