State v. Barriga

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STATE OF CONNECTICUT v. RICARDO BARRIGA
(AC 37747)
DiPentima, C. J., and Beach and Flynn, Js.
Submitted on briefs February 29—officially released May 24, 2016
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, geographical area number one,
Hon. Martin L. Nigro, judge trial referee.)
Ricardo Barriga, self-represented, the appellant
(defendant), filed a brief.
David I. Cohen, state’s attorney, Mitchell Rubin,
senior assistant state’s attorney, and Emily Graner Sex-
ton, special deputy assistant state’s attorney, filed a
brief for the appellee (state).
Opinion
FLYNN, J. Practice Book § 60-2 provides, in pertinent
part: ‘‘The supervision and control of the proceedings
on appeal shall be in the court having appellate jurisdic-
tion from the time the appeal is filed, or earlier . . . .’’
The rule goes on to provide that the court ‘‘may also,
for example . . . (5) order that a party for good cause
shown may file a late appeal . . . .’’1 Practice Book
§ 60-2. On February 4, 2015, the defendant, Ricardo
Barriga, a citizen of Peru, filed an appeal from his con-
viction after guilty pleas to two counts of possession
of marijuana in violation of General Statutes § 21a-279
(c).2 The judgments of his conviction entered on Janu-
ary 28, 2005, over ten years prior to his appeal from it on
February 4, 2015. The defendant claims that in August,
2013, he was ordered deported due to his prior convic-
tion. The defendant requests this court to accept his
late appeal using its supervisory authority pursuant to
Practice Book § 60-2 (5) and to treat the appeal as
though he had filed a request to file an untimely appeal.
We dismiss the appeal.
Before accepting the defendant’s guilty pleas, the trial
court informed him of the elements of the charged
offenses, what the state would be required to prove,
and what trial rights he was forfeiting by pleading guilty.
The defendant was represented by counsel at the plea
and sentencing, at which the court accepted the guilty
pleas and sentenced him to two years of incarceration,
execution suspended, and two years of probation. It is
undisputed by the state that the sentencing court did
not advise the defendant of any possible immigration
law consequences prior to his making his pleas. The
defendant did not precede the filing of his appeal with
a request to file a late appeal, nor did he ever timely
move to withdraw his pleas before the trial court.
In addition to requesting this court to accept his late
appeal using its supervisory authority pursuant to § 60-
2 (5), the defendant also calls on this court to extend
the three year statutory limitation on vacating guilty or
nolo contendere pleas in General Statutes § 54-1j, and
to determine that that limitation is unconstitutional.
The state makes two arguments in opposition. It con-
tends that § 54-1j is not unconstitutional, and that this
court cannot extend the three year time limitation for
vacating a guilty plea.
Section § 54-1j (a) requires that ‘‘[t]he [trial] 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 deporta-
tion or removal from the United States, exclusion from
readmission to the United States or denial of naturaliza-
tion, pursuant to the laws of the United States.’’ How-
ever, in adopting § 54-1j, the legislature included
subsection (c), which provides that if the court does
not advise the defendant of one of the enumerated
consequences 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 defen-
dant’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.’’ The defen-
dant contends on appeal that this court should extend
the provisions of § 54-1j (c) beyond the three year limita-
tion period and hold the statute unconstitutional
because it ultimately does not ensure protection from
the infringement of a resident alien’s liberty rights.
We first address the defendant’s contention that the
three year limit is ‘‘stale’’ and ‘‘no longer serves the
ends of justice’’ in contemporary times and that the
three year limitation should be extended by this court.
Although our courts have the power and duty to inter-
pret and apply laws enacted by the General Assembly,
they do not have the power to repeal or amend them.
That power is vested in elected members of the legisla-
ture and not in the courts. Article third, § 1, of the
Connecticut constitution provides: ‘‘The legislative
power of the state shall be vested in two distinct houses
or branches; the one to be styled the senate, the other
the house of representatives, and both together the
general assembly.’’ ‘‘Whatever . . . [the constitution]
prescribes, the General Assembly, and every officer or
citizen to whom the mandate is addressed, must do;
and whatever it prohibits, the General Assembly, and
every officer and citizen, must refrain from doing; and
if either attempt to do that which is prescribed, in any
other manner than that prescribed, or to do in any
manner that which is prohibited, their action is repug-
nant to that supreme and paramount law, and invalid.’’
(Internal quotation marks omitted.) Caldwell v. Meskill,
164 Conn. 299, 314–15, 320 A.2d 788 (1973), quoting
Opinion of the Judges, 30 Conn. 591, 593–94 (1862).
Furthermore, there is an obvious rationale behind
the three year limitation, within which § 54-1j provides
that the court may vacate a judgment of guilty and
permit a defendant to withdraw his plea and enter a
plea of not guilty. As we observed in State v. Alegrand,
130 Conn. App. 652, 665, 23 A.3d 1250 (2011), ‘‘[t]here
is a public interest in maintaining some finality to judg-
ments. Prosecutions cannot easily be recommenced
when arresting officers no longer are available, wit-
nesses are dead or cannot be found and physical evi-
dence of crime has been destroyed. Public trust and
confidence in the judiciary is sapped when cases are
allowed to linger endlessly for years or decades in trial
or appellate tribunals.’’
We next address the defendant’s unconstitutionality
claim. Although the defendant makes the bare state-
ment that the time limitation of three years found in
§ 54-1j (c) is unconstitutional, he provides us with no
analysis of how he claims it is violative of the fifth and
fourteenth amendments to the United States constitu-
tion or article seventeen of the constitution of Connecti-
cut, as amended by article twenty-nine of the
amendments,3 to permit this court to adjudicate
whether the statute is facially unconstitutional. Further-
more, there is no factual record beyond the undisputed
fact that the statutorily required immigration conse-
quence advisory was not made by the sentencing court.
As the state points out, there is no evidence of the
deportation order or the reasons for it or for any other
claimed collateral consequence of his pleas to permit
review of how the three year limitation is unconstitu-
tional as applied to him. We cannot speculate on what
facts might underlie the defendant’s bare claims, and,
therefore, we conclude that his unconstitutionality
claim is unreviewable.
We next address whether this court should accept
an appeal of the defendant’s conviction filed more than
ten years after he was convicted, pursuant to our super-
visory powers under Practice Book § 60-2. Having care-
fully considered the rule in light of the sparse record
before us, we decline to do so.
The defendant points us to State v. Reid, 277 Conn.
764, 894 A.2d 963 (2006), as authority for the granting
of his late appeal. In that case, the defendant, Mark
Reid, was ordered deported, and thereafter was
removed from the United States and deported to
Jamaica. Id., 771. Reid’s first conviction of sexual
assault in the first degree, for which he was originally
to be deported by the Immigration Service, resulted in
his later exoneration based on a DNA test that was not
available at the time of his trial. See id., 769 n.5. Reid
was sentenced to eighteen years imprisonment, but his
conviction was vacated five years later based on the
results of that test. Id. The charges against Reid eventu-
ally were dismissed and he was released after serving
approximately six years of his prison sentence. Id. A
prior conviction of assault in the second degree then
became the newly asserted grounds for deportation,
but Reid claimed that he was never advised about the
elements of that crime before pleading guilty to it. Id.,
771. The court in Reid held that our Supreme Court
retains jurisdiction to review convictions through its
supervisory powers even when the trial court’s jurisdic-
tion terminates. Id., 777–78. In Reid, the court also noted
that it was a rare case that warranted treating a motion
to withdraw his guilty plea as a motion to extend the
time for appeal of an eleven year old conviction. Id., 778.
As earlier observed, the defendant has not provided
us with an adequate record to determine what order of
removal from the United States the defendant is subject
to by virtue of his conviction. Lack of any such record
prevents us from determining what factual case the
defendant has, much less whether it possesses the rare
circumstances, similar to that in Reid, justifying a ten
year late appeal. See id. In State v. Aquino, 279 Conn.
293, 298, 901 A.2d 1194 (2006), our Supreme Court held
that it could grant no relief to a person who was
deported unless deportation was the result of his guilty
plea alone.
The defendant had remedies with which to challenge
his pleas and conviction that he never availed himself
of. Prior to his conviction, the defendant never indicated
a desire to change his pleas. Furthermore, he did not file
a timely direct appeal within twenty days of receiving
notice of the judgments of his conviction, pursuant to
Practice Book § 63-1, nor did he file a petition for a
new trial, pursuant to Practice Book § 42-55 and General
Statutes § 52-270. Additionally, he did not apply for a
pardon pursuant to General Statutes § 54-130a. More-
over, he did not seek to vacate his pleas within the
three year time span from the date of his conviction
permitted by § 54-1j. Significantly, appellate courts’
‘‘supervisory powers are invoked only in the rare cir-
cumstance where . . . traditional protections are inad-
equate to ensure the fair and just administration of the
courts.’’ (Internal quotation marks omitted.) State v.
Reid, supra, 277 Conn. 778. The defendant had such
adequate remedies available to him; however, he did
not use them.
The appeal is dismissed.
In this opinion the other judges concurred.
1
General Statutes § 54-95 authorizes appeals by defendants from criminal
judgments; however, the statute does not set the time within which such
appeals must be taken. That is done by rule. Practice Book § 63-1 sets the
time within which such appeals must be taken at twenty days from the date
notice of the judgment or decision is given.
2
The defendant was also convicted on guilty pleas to two counts of
operating a motor vehicle while under the influence of intoxicating liquor
or drugs in violation of General Statutes § 21a-279 (c). He has not appealed
from his conviction of those charges.
3
See State v. Geisler, 222 Conn. 672, 610 A.2d 1225 (1992).