State v. Lynch

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STATE OF CONNECTICUT v. KEVIN LYNCH
(AC 41420)
Lavine, Keller and Elgo, Js.
Syllabus
The defendant, who had been convicted on guilty pleas under multiple
informations of three counts operating a motor vehicle while under the
influence of intoxicating liquor in violation of statute (§ 14-227a), two
counts of failure to appear in the second degree and of criminal trespass
in the first degree, appealed to this court challenging the trial court’s
denial of his motion to withdraw his guilty pleas. At sentencing, the
defendant made an oral motion to withdraw his guilty pleas on the
ground that he was under the influence of psychotropic medication at
the time he entered the plea agreement and because the plea canvass
was deficient. Defense counsel also claimed that he was ineffective.
The trial court denied the motion to withdraw the guilty pleas and
sentenced the defendant in accordance with his pleas. Held:
1. The trial court did not abuse its discretion in failing to conduct an eviden-
tiary hearing with respect to the defendant’s motion to withdraw his
guilty pleas; the defendant never requested an evidentiary hearing on
the motion, the trial court afforded him an opportunity to be heard on
his various claims, including his motion to withdraw his pleas at the
sentencing hearing itself, and the defendant failed to provide an adequate
factual basis to support a further hearing, as the defendant told the
court during the plea canvass that he was not under the influence of
drugs, alcohol or medications, he did not provide the names of any
medications or claim that they rendered his guilty pleas involuntary,
defense counsel’s assertion that the plea canvass was deficient for failing
to specify that the defendant’s driver’s license could be revoked perma-
nently was not a reason among the grounds enumerated in the applicable
rule of practice (§ 39-27) for the withdrawal of a plea, and neither defense
counsel nor the defendant provided a factual basis for the assertion
that defense counsel had been ineffective.
2. The defendant could not prevail on his claim that the trial court should
have granted his motion to withdraw his guilty pleas, pursuant to the
applicable rule of practice (§ 39-27), on the ground that his counsel was
ineffective, as the defendant failed to satisfy his burden of providing
that the guilty pleas resulted from the denial of effective assistance
of counsel; although the defendant claimed that his counsel rendered
ineffective assistance for failing to investigate his case in several ways,
defense counsel presented only bare assertions of those claims, and
the defendant, thus, presented an inadequate factual and legal basis to
support his assertion, and neither the defendant nor his counsel articu-
lated or proved that but for counsel’s alleged errors, the defendant
would not have pleaded guilty and would have insisted on going to trial.
3. The trial court did not abuse its discretion by failing to conduct an
evidentiary hearing prior to terminating the defendant’s participation in
an alcohol education program, the purpose of which is to allow first
time offenders of § 14-227a an opportunity to rehabilitate so as to avoid
further involvement with the criminal justice system while protecting
the public from persons who operate a motor vehicle while under the
influence of intoxicating liquor; the defendant had been admitted to the
program following his second operating a motor vehicle while under
the influence charge, after which he was arrested for a third such charge
and entered into a global plea agreement that included guilty pleas to
three counts of operating a motor vehicle while under the influence as
a first offender, and it was apparent from the record that the trial court
recognized that, by pleading guilty to those three counts, the defendant
effectively conceded that, despite participating in the program, he was
not entitled to a dismissal of the charge, and in light of the circumstances
surrounding the defendant’s pleas, the court properly made an indepen-
dent determination that the termination of the defendant’s participation
in the program was warranted.
Argued April 22—officially released October 22, 2019
Procedural History
Substitute informations charging the defendant with
three counts each of the crimes of operating a motor
vehicle while under the influence of intoxicating liquor
as a first offender and failure to appear in the second
degree, with the crimes of risk of injury to a child,
criminal trespass in the first degree, disorderly conduct,
failure to appear in the first degree, criminal violation
of a protective order, violation of the conditions of
release in the second degree and illegal operation of a
motor vehicle while his driver’s license was suspended,
and with the infraction of operating an unregistered
motor vehicle, brought to the Superior Court in the
judicial district of Hartford, geographical area number
fourteen, where the defendant was presented to the
court, Prats, J., on guilty pleas as to three counts of
operating a motor vehicle while under the influence of
intoxicating liquor as a first offender, two counts of
failure to appear in the second degree, and one count
each of risk of injury to a child and criminal trespass
in the first degree; thereafter, the court, Williams, J.,
denied the defendant’s motion to withdraw and to
vacate his guilty pleas, and rendered judgments of guilty
and sentenced the defendant in accordance with the
pleas; subsequently, the court, Williams, J., vacated the
conviction of risk of injury of a child in accordance
with the pleas; thereafter, the state entered a nolle pro-
sequi as to the remaining charges, and the defendant
appealed to this court. Affirmed.
Kevin Lynch, self-represented, the appellant
(defendant).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Michael Weber, senior assistant state’s
attorney, for the appellee (the state).
Opinion
ELGO, J. The self-represented defendant, Kevin
Lynch, appeals from the judgments of conviction ren-
dered by the trial court following the denial of his
motion to withdraw his guilty pleas. On appeal, the
defendant claims that the court improperly (1) failed
to conduct an evidentiary hearing on his motion to
withdraw his guilty pleas, (2) denied his motion to with-
draw his guilty pleas, and (3) failed to conduct an evi-
dentiary hearing prior to terminating his participation
in the pretrial alcohol education program (program).
We affirm the judgments of the trial court.
The record reveals the following relevant facts and
procedural history. On October 7, 2016, pursuant to
a global plea agreement that encompassed all of the
defendant’s cases and was reached in accordance with
State v. Garvin, 242 Conn. 296, 699 A.2d 921 (1997),1
the defendant entered guilty pleas to three counts of
operating a motor vehicle while under the influence of
intoxicating liquor as a first offender in violation of
General Statutes § 14-227a, two counts of failure to
appear in the second degree in violation of General
Statues § 53a-173, and to one count each of risk of injury
to a child in violation of General Statutes § 53-21, and
criminal trespass in the first degree in violation of Gen-
eral Statutes § 53a-107. In accordance with the Garvin
agreement, the court, Prats, J., agreed to sentence the
defendant to a total effective sentence of four years of
incarceration, execution suspended, with three years of
probation. Pursuant to that agreement, the defendant’s
conviction of risk of injury to a child would be vacated.
The court, however, also advised the defendant that he
remained subject to a possible sentence of up to four-
teen and one-half years of incarceration if he violated
the terms of the Garvin agreement by failing to comply
with an inpatient alcohol treatment program, by being
arrested with probable cause on any new charges prior
to his sentencing, or by failing to appear at the sentenc-
ing hearing.
The sentencing hearing was held on February 15,
2018. At that time, the state indicated that the defendant
had complied with the conditions of the Garvin agree-
ment and, therefore, the state was prepared to enter a
nolle prosequi as to the defendant’s conviction of risk
of injury to a child, once the court vacated that convic-
tion. The court, Williams, J., then asked the clerk to
verify before they proceeded that the program in one
of the defendant’s cases was previously terminated.2
The clerk responded that he had no record of that in
the court’s file. In response, the state argued that the
‘‘agreed disposition and the fact that the plea was
entered . . . more than implies the fact that [the pro-
gram] was supposed to be terminated . . . .’’
Defense counsel responded that he believed that a
notice of successful completion of the program was
filed with the court by the bail commissioner. He also
stated that the program had not been terminated and
that ‘‘there is a valid argument to be made in that file
that the [successful completion of the program] should
be acknowledged by the court . . . [a]nd that matter
should be dismissed . . . .’’ The court then asked
defense counsel if this issue was raised at the time of
the Garvin plea. Defense counsel answered: ‘‘No, it was
not [raised], because in all candor to this court, I did not
comprehend the procedural history of [the defendant’s]
several cases . . . . At that point in time, my primary
focus was to persuade the court . . . to allow for inpa-
tient treatment for [the defendant].’’
Defense counsel went on to explain: ‘‘But, I also didn’t
understand at that time . . . that [the defendant] was
under [the influence of] about four psychotropic medi-
cations administered by the Department of Correction.
And what I also didn’t take up with the court or with
the state is the history of this particular file and the
fact that the [program] had been granted by the court.
I believe Judge Suarez had granted the [program] with
full knowledge with the preexisting matter then still at
GA 10 in New London. Also, there was a family violence
education program granted in this courthouse at about
the same time in a different but companion matter. And
there was . . . in that case a successful completion of
the family violence education program, as well. And
only since long after October 6 have I become aware
and better understood the procedural history here. And
then, while . . . I have learned only in the past week
that there . . . was an absolute defense to the New
London failure to appear, to which he [pleaded] guilty
on October 7, 2016, which I had no understanding about
it at all. And . . . there is a substantial defense to [the
failure to appear charge], Your Honor. So . . . the com-
bination of those . . . factored in the new information,
is why I would respectfully pray the court to allow me
to fulfill my obligations to [the defendant] . . . by
allowing me three or four days to file motions and a
brief on this issue of [the program]. The last case of
the operating under the influence occurred after the
one year dismissal date of the [program], as I recall,
Your Honor. And the [program] had not been dismissed
on the scheduled date only because . . . documenta-
tion from [Connecticut Valley Hospital] had not been
received by the bail commissioner. So what I’m saying
in good faith, to the court and to the state, is that there
is a substantial amount of information that I respectfully
suggest calls into question the validity of the pleas, to
the failures to appear, as well as the plea to the file
that we’ve just confirmed the [program] had not been
terminated in, at the time of the plea.’’
The court responded by asking defense counsel if he
wanted the court to not honor the plea agreement. The
court also pointed out that the plea agreement was
entered in 2016, that it involved matters dating back to
2014, and that the court had granted multiple continu-
ances in this matter. While defense counsel and the
defendant conferred, the court stated that the clerk had
discovered that ‘‘on [program] progress reports . . .
the defendant, apparently, did not complete the fifteen
sessions for which he was referred. However, he com-
pleted detox and residential treatment.’’
Subsequently, the following colloquy occurred:
‘‘[Defense Counsel]: I would ask Your Honor for sim-
ply four days to file—
‘‘The Court: Well, that’s denied. . . . I said back in
January that today was the day for sentencing. I made
that clear. On January 11, I made that abundantly clear.
This is it. This is the sentencing day. And now I’m
hearing an oral motion to, I guess, delay sentencing. I’m
hearing an oral motion to not honor the plea agreement,
after a full canvass based on information that’s being
brought to the court’s attention for the first time. So
are you asking the court—first of all, on the [program],
your position is that case should be dismissed despite
the clear plea agreement with Judge Prats?
‘‘[Defense Counsel]: Yes.
‘‘The Court: That’s your motion?
‘‘[Defense Counsel]: Yes, Your Honor.
‘‘The Court: And separately, you’re asking the court
not to honor the Judge Prats plea agreement of the
fully suspended sentence and the vacating of the risk
of injury?
‘‘[Defense Counsel]: Well, what I’m asking, Your
Honor, is the opportunity to provide the court, and
specifically the state, with documentation regarding the
failures to appear.
‘‘The Court: That you don’t have today on what’s the
known sentencing date on a case where the pleas were
entered [in] October, 2016. That request is denied.
‘‘[Defense Counsel]: Yes, Your Honor.
‘‘The Court: Anything further from defense at this
point?
‘‘[Defense Counsel]: May the defendant withdraw his
. . . pleas from October?
‘‘The Court: Based on what?
‘‘[Defense Counsel]: Based on the fact that, Your
Honor, he was under [the influence of] four psy-
chotropic medications from [the Department of Correc-
tion], based upon the fact that the canvass by Judge
Prats did not specify the penalties that would attach to
three convictions of operating under the influence.
‘‘The Court: Such as what?
‘‘[Defense Counsel]: A lifetime revocation and, ah—
‘‘The Court: Are you saying that’s part of—it’s some-
thing that I normally point out. But, where’s your legal
support for that argument?
***
‘‘[Defense Counsel]: From the Practice Book, Your
Honor, for the canvass of a guilty plea.’’
Subsequently, the court asked the state if it would
like to be heard. The state responded by arguing that
Judge Prats complied with the requirements in Practice
Book § 39-19 for the acceptance of a plea. The state also
enumerated the grounds for allowing the withdrawal
of a plea pursuant to Practice Book § 39-27, and argued
that the defendant had ‘‘no basis upon which at this
particular point to withdraw the plea.’’ Accordingly, the
state argued that the court should go forward with sen-
tencing.
Thereafter, the court asked defense counsel if he
wanted to be heard and the following colloquy
occurred:
‘‘[Defense Counsel]: Your Honor, I am claiming that
I was ineffective for [the defendant].
‘‘The Court: Why should that not be taken up as part
of a habeas? The state has pointed out a persuasive
argument as to why defense counsel’s motion should
be denied—his oral motion—should be denied. Why
should that not be a habeas as opposed to vacating the
plea? Because, then here’s what is going to happen? So
you’re telling me it’s a habeas. And then you’re going
to tell me that you’re moving to withdraw, right, for
trial, because you’re ineffective and shouldn’t be repre-
senting him going forward, right? That’s where . . .
this is headed, now.
‘‘[Defense Counsel]: I don’t . . . think that it is,
Your Honor.
‘‘The Court: Okay. So despite a concession that you
think that you’re ineffective, you’re saying you’d be
prepared to go forward with this trial, if it were sched-
uled immediately?
‘‘[Defense Counsel]: Yes, Your Honor.
‘‘The Court. Okay. Anything further from either party
on any of this?
‘‘[The Prosecutor]: Judge, I indicated the Practice
Book sections and the fact that I agree, obviously, with
the court as I was implying. It’s a habeas matter. I
can’t see why in the world they should be allowed to
withdraw at this point.
‘‘The Court: Anything further from defense?
‘‘[Defense Counsel]: No, thank you, Your Honor.’’
Thereafter, the court concluded: ‘‘For the reasons
cited by the state, the court finds no legal reason to
vacate the pleas and finds that it would not be in the
interest of justice to further delay these matters that
go back four years in some cases. . . . By way of plea
agreement, in docket number ending in 1617, the court
terminates the [program]. This was the clear intention
of both parties when the plea agreement was entered
in front of Judge Prats, that this would result in a convic-
tion for driving under the influence, as a triple first
offender. The defendant is receiving a substantial bene-
fit by way of a fully suspended sentence and being
allowed to vacate his felony plea to the risk of injury
to a child. For all of those reasons, [the program] is
terminated in [docket number ending in] 1617.’’
Subsequently, the court sentenced the defendant to
a total effective sentence of four years, execution sus-
pended, with three years of probation subject to certain
special conditions, including a $500 fine for each convic-
tion of operating a motor vehicle while under the influ-
ence, as required by law, and 300 hours of community
service. The defendant also was obligated to comply
with the ignition airlock device requirements applicable
to him by law, and he was ordered not to drive without
a valid motor vehicle license. Pursuant to the plea agree-
ment, the court vacated the defendant’s risk of injury
to a child conviction and the state, thereafter, entered
a nolle prosequi as to that count. This appeal followed.
I
The defendant first argues that the court abused its
discretion by failing to conduct an evidentiary hearing
on his motion to withdraw his guilty pleas. In response,
the state contends that the defendant failed to request
an evidentiary hearing, rendering the claim unpre-
served, and, in any event, under State v. Simpson, 329
Conn. 820, 189 A.3d 1215 (2018), the defendant was
not entitled to an evidentiary hearing. We agree with
the state.
We begin with the standard of review and the relevant
principles of law that govern our analysis. ‘‘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 discre-
tion 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 cor-
rectly 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 §] 39-273 . . . .
‘‘We further observe that there is no language in Prac-
tice Book §§ 39-26 and 39-27 imposing an affirmative
duty upon the court to conduct an inquiry into the basis
of a defendant’s motion to withdraw his guilty plea.
. . . [T]he administrative need for judicial expedition
and certainty is such that trial courts cannot be
expected to inquire into the factual basis of a defen-
dant’s motion to withdraw his guilty plea when the
defendant has presented no specific facts in support of
the motion. To impose such an obligation would do
violence to the reasonable administrative needs of a
busy trial court, as this would, in all likelihood, provide
defendants strong incentive to make vague assertions
of an invalid plea in hopes of delaying their sentenc-
ing. . . .
‘‘When the trial court does grant a hearing on a defen-
dant’s motion to withdraw a guilty plea, the require-
ments and formalities of the hearing are limited. . . .
Indeed, a hearing may be as simple as offering the
defendant the opportunity to present his argument on
his motion for withdrawal. . . . [A]n evidentiary hear-
ing is rare, and, outside of an evidentiary hearing, often
a limited interrogation by the [c]ourt will suffice [and]
[t]he defendant should be afforded [a] reasonable
opportunity to present his contentions. . . .
‘‘Thus, when conducting a plea withdrawal hearing,
a trial court may provide the defendant an opportunity
to present a factual basis for the motion by asking open-
ended questions. . . . Furthermore, in assessing the
adequacy of the trial court’s consideration of a motion
to withdraw a guilty plea, we do not examine the dia-
logue 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. . . .
‘‘This flexibility is an essential corollary of the trial
court’s authority to manage cases before it as is neces-
sary. . . . The case management authority is an inher-
ent power necessarily vested in trial courts to manage
their own affairs in order to achieve the expeditious
disposition of cases. . . . Therefore, the trial court is
not required to formalistically announce that it is con-
ducting a plea withdrawal hearing; nor must it demar-
cate the hearing from other related court proceedings.
It may conduct a plea withdrawal hearing as part of
another court proceeding, such as a sentencing hearing.
. . . When a trial court inquires into a defendant’s plea
withdrawal motion on the record, it is conducting a
plea withdrawal hearing.’’ (Citations omitted; emphasis
altered; footnote added; internal quotation marks omit-
ted.) State v. Simpson, supra, 329 Conn. 836–39.
In Simpson, our Supreme Court held that the trial
court ‘‘conducted a hearing on the defendant’s motion
to withdraw his guilty plea, after which no further evi-
dentiary hearing was required, because his allegations
did not furnish a proper basis for withdrawal under
Practice Book § 39-27.’’ Id., 835. Our Supreme Court
further determined that the record in that case reflected
that ‘‘the trial court gave the defendant a reasonable
opportunity to present his contentions’’ and a ‘‘review
of the trial court’s approach illustrates the adequacy of
the hearing.’’ Id., 839. Thus, it considered the trial
court’s inquiry into the defendant’s motion and how the
trial court ‘‘allowed the defendant to present a factual
basis for the motion . . . .’’ (Internal quotation marks
omitted.) Id., 839–40. Our Supreme Court also explained
that it was ‘‘irrelevant that the court did not explicitly
label its inquiry into the defendant’s motion as a hearing.
Nor [did] it matter that the trial court addressed the
defendant’s motion during sentencing. The defendant
and his attorney both had ample opportunity to meet
their burden of establishing a plausible reason for the
withdrawal of a plea of guilty.’’ (Internal quotation
marks omitted.) Id., 841.
As the state points out, the defendant never requested
an evidentiary hearing. Instead, the trial court afforded
the defendant an opportunity to be heard on his various
claims, including his motion to withdraw his pleas at
the sentencing hearing itself. The transcript of the sen-
tencing hearing reveals that the defendant asked if he
could withdraw his guilty pleas4 and the court asked
in response: ‘‘Based on what?’’ Accordingly, like the
trial court in Simpson, the court in the present case
afforded the defendant the opportunity to ‘‘present a
factual basis for the motion through an open-ended
question.’’ (Internal quotation marks omitted.) Id., 840.
When defense counsel responded by stating that the
defendant was under the influence of medications and
that the canvass ‘‘did not specify the penalties that
would attach to three convictions of operating under the
influence,’’ the court then inquired further with another
open-ended question: ‘‘Such as what?’’ Additionally,
after the state argued that Judge Prats had complied
with the requirements of Practice Book § 39-19 for
acceptance of a plea, enumerated the grounds for
allowing the withdrawal of a plea pursuant to Practice
Book § 39-27, and argued that the defendant had pre-
sented no factual basis to support the withdrawal of
the pleas, the court provided the defendant with an
opportunity to respond.
At that point, defense counsel stated for the first time:
‘‘Your Honor, I am claiming that I was ineffective for
[the defendant].’’ After suggesting the circumstances
were more appropriate for a habeas proceeding, the
court then asked if either party had anything further.
Although the state made some final remarks, defense
counsel stated that he had nothing further. The court
then asked the defendant if he wished to add anything,
to which the defendant responded that he had nothing
to add. Finally, the court confirmed with the state that
it was willing to follow the agreement as to the risk of
injury to a child conviction. The court then asked
defense counsel and then the defendant, once again, if
either had anything further. Both defense counsel and
the defendant responded that they had nothing further.5
Thereafter, the court in the present case, like the trial
court in Simpson, ‘‘terminated the hearing by denying
the plea withdrawal motion . . . .’’ Id., 841.
In considering whether the defendant provided an
adequate factual basis for requiring an evidentiary hear-
ing, we turn to the specific grounds asserted in the
defendant’s motion to withdraw his guilty pleas. The
defendant provided three bases on which he sought to
withdraw his pleas: (1) the defendant was under the
influence of psychotropic medications at the time that
he pleaded guilty; (2) the plea canvass was deficient
for failing to specify that the defendant’s driver’s license
might be permanently revoked by the Department of
Motor Vehicles; and (3) defense counsel had rendered
ineffective assistance. As to the claim that the defendant
was under the influence of psychotropic medications
at the time that he pleaded guilty, the defendant did
not elaborate at the sentencing hearing beyond that
bald assertion. He did not provide the names of those
medications, or evidence of those medications and their
effects. See State v. Stith, 108 Conn. App. 126, 130–31,
946 A.2d 1274 (court did not abuse its discretion in
denying defendant’s motion to withdraw guilty plea on
basis that he was under influence of medication when
he entered plea where defendant stated at plea canvass
that he was not under the influence of any alcohol,
drugs, or medication and defendant provided at hearing
on motion to withdraw plea names of medications but
did not offer proof of their effects), cert. denied, 289
Conn. 905, 957 A.2d 874 (2008). Additionally, the defen-
dant did not claim that his use of those medications
rendered his guilty pleas involuntary.
‘‘[O]ur case law requires that a defendant show a
plausible reason for the withdrawal of a guilty plea . . .
and allege and provide facts that warrant a trial court’s
consideration of his motion.’’ (Citation omitted; internal
quotation marks omitted.) State v. Anthony D., 320
Conn. 842, 854, 134 A.3d 219 (2016). Moreover, ‘‘we do
not view the hearing in isolation but can look to other
factors, such as the existence of a thorough plea can-
vass . . . .’’ State v. Simpson, supra, 329 Conn. 841;
see also State v. Stith, supra, 108 Conn. App. 131 (‘‘[i]t
is well established that [a] trial court may properly rely
on . . . the responses of the [defendant] at the time
[he] responded to the trial court’s plea canvass’’ [inter-
nal quotation marks omitted]). Our review of the plea
canvass reveals that the defendant was asked if he was
under the influence of any alcohol, drugs, or medica-
tions. The defendant responded: ‘‘No, Your Honor.’’
Accordingly, on the basis of our review of the record,
we conclude that the court did not abuse its discretion
in failing to conduct an evidentiary hearing on the defen-
dant’s motion to withdraw his guilty pleas due to his
allegedly being under the influence of drugs at the time
of his pleas because the defendant failed to demonstrate
an adequate factual basis to support a further hearing.
In considering the defendant’s claim that the plea
canvass was deficient for failing to specify that his
operator’s license could be revoked permanently, the
court asked defense counsel to provide legal support
for that proposition. When defense counsel referred to
the rules of practice, the court properly concluded that
the relevant provisions of Practice Book § 39-19 on the
acceptance of a guilty plea do not require advising the
defendant of the possible revocation of his driver’s
license. ‘‘The . . . constitutional essentials for the
acceptance of a plea of guilty are included in our rules
and are reflected in Practice Book §§ [39-19 and 39-20].
. . . The failure to inform a defendant as to all possible
indirect and collateral consequences does not render
a plea unintelligent or involuntary in a constitutional
sense.’’ (Internal quotation marks omitted.) State v.
Reid, 277 Conn. 764, 780, 894 A.2d 963 (2006). Thus,
defense counsel’s assertion that the plea canvass was
deficient for failing to specify that the defendant’s driv-
er’s license could be revoked permanently was not a
reason ‘‘among the grounds enumerated in Practice
Book § 39-27 for the withdrawal of a plea, and the court
had no reason to inquire further, such as by way of an
evidentiary hearing.’’ State v. Simpson, supra, 329 Conn.
841–42. Accordingly, because it is clear, as a matter of
law, that the defendant could not prevail, we conclude
that the court did not abuse its discretion in failing to
conduct an evidentiary hearing.
As to defense counsel’s assertion that he had ren-
dered ineffective assistance, on appeal, the defendant
and the state disagree as to what basis defense counsel
provided at the sentencing hearing to support his argu-
ment. The state argues that defense counsel provided
only a ‘‘conclusory assertion that he had been ineffec-
tive . . . .’’ In contrast, the defendant argues that
defense counsel provided evidence of his ineffec-
tiveness when (1) he told the court that he ‘‘did not
comprehend the procedural history of [the defendant’s]
several cases’’; (2) he stated that he was not aware at
the time of the defendant’s guilty plea that the defendant
‘‘was [on] about four psychotropic medications admin-
istered by the Department of Correction’’; (3) he indi-
cated that he ‘‘didn’t take up with the court or with the
state . . . the history of this particular file and the fact
that the [program] had been granted by the court’’; and
(4) he stated that he had ‘‘learned only in the last week
that there . . . was an absolute defense to the New
London failure to appear . . . .’’ Our review of the
record, however, indicates that those arguments were
not made in support of an ineffective assistance of
counsel claim. Instead, those claims were advanced
initially to justify a continuance of the sentencing hear-
ing, which the court denied,6 and then subsequently to
support a motion to withdraw the guilty pleas.
At the point that defense counsel stated that he was
ineffective, neither defense counsel nor the defendant
provided any factual basis to support that assertion.
Moreover, after questioning counsel about whether
these claims more properly were for a subsequent
habeas proceeding, the court asked counsel and the
defendant several times whether they had anything fur-
ther to say regarding the claim of ineffectiveness and
the withdrawal of the pleas. Neither the defendant nor
his counsel added any further support or factual basis
for the ineffective assistance of counsel claim. As we
have recounted previously, defense counsel did not
argue his oral motion to withdraw the guilty pleas until
the court denied his initial request for time to file docu-
ments with the court. Additionally, once defense coun-
sel specifically began arguing the motion to withdraw
the guilty pleas, defense counsel asserted that the guilty
pleas should be withdrawn because the defendant was
under the influence of psychotropic medications at the
time that he pleaded guilty and that the plea canvass
was deficient for failing to specify that the defendant’s
driver’s license might be revoked permanently. It was
only after the state enumerated the specific grounds
for withdrawing a guilty plea provided by Practice Book
§ 39-27, including ineffective assistance of counsel, and
argued that defense counsel had not provided a factual
basis substantiating any ground, that defense counsel
asserted that he had provided ineffective assistance.7
‘‘At the time he made an oral motion to withdraw the
defendant’s guilty plea, it was incumbent upon defense
counsel to provide the trial court with specific reasons
to support the motion, but he failed to do so.’’ State v.
Anthony D., supra, 320 Conn. 854.
We observe from the record that the proceeding
evolved from a motion for a continuance, to a motion
to withdraw the guilty pleas, to what appears from
the record to be an impromptu claim of ineffective
assistance of counsel as a basis for withdrawing the
guilty pleas. The court clearly addressed each issue
appropriately as they were presented. Under the cir-
cumstances of this case, we cannot conclude that the
court abused its discretion in failing to afford the defen-
dant an evidentiary hearing.
II
The defendant next claims that the court abused its
discretion when it denied his motion to withdraw his
guilty pleas. Specifically, the defendant argues that the
court should have granted his motion to withdraw his
guilty pleas pursuant to Practice Book § 39-27 (4)
because his counsel rendered ineffective assistance.8
We disagree.
We begin with the standard of review and relevant
principles of law that govern our analysis. As previously
noted, Practice Book § 39-26 provides in relevant part:
‘‘A defendant may withdraw his or her 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 or her plea upon
proof of one of the grounds in [Practice Book §] 39-27.
A defendant may not withdraw his or her plea after the
conclusion of the proceeding at which the sentence
was imposed.’’
‘‘[O]ur standard of review is abuse of discretion for
decisions on motions to withdraw guilty pleas brought
under Practice Book § 39-27. . . . Practice Book § [39-
27] specifies circumstances under which a defendant
may withdraw a guilty plea after it has been entered.9
[O]nce entered, a guilty plea cannot be withdrawn
except by leave of the court, within its sound discretion,
and a denial thereof is reversible only if it appears that
there has been an abuse of discretion. . . . The burden
is always on the defendant to show a plausible reason
for withdrawal of a plea of guilty. . . .
‘‘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.’’ (Citations omitted; footnote added; internal quota-
tion marks omitted.) State v. Lameirao, 135 Conn. App.
302, 319–20, 42 A.3d 414, cert. denied, 305 Conn. 915,
46 A.3d 171 (2012).
‘‘Almost without exception, we have required that a
claim of ineffective assistance of counsel must be raised
by way of habeas corpus, rather than by direct appeal,
because of the need for a full evidentiary record for
such [a] claim. . . . Absent the evidentiary hearing
available in the collateral action, review in this court
of the ineffective assistance claim is at best difficult
and sometimes impossible. The evidentiary hearing
provides the trial court with the evidence which is often
necessary to evaluate the competency of the defense
and the harmfulness of any incompetency. . . .
‘‘Practice Book § 39-27 (4) provides an explicit excep-
tion to this general rule, however, and allows a defen-
dant to withdraw a guilty plea after its acceptance if
the plea resulted from the denial of effective assistance
of counsel . . . . We recognize, therefore, that the
defendant’s claim of ineffective assistance of counsel
is procedurally correct. Nevertheless, we are mindful
that on the rare occasions that we have addressed an
ineffective assistance of counsel claim on direct appeal
. . . we have limited our review to situations in which
the record of the trial court’s allegedly improper action
was adequate for review or the issue presented was
a question of law, not one of fact requiring further
evidentiary development. We point out, finally, that irre-
spective of whether a defendant proceeds by way of
habeas corpus or direct appeal, our review is the same,
and the burden remains on the defendant to produce
an adequate record so that an appellate court may ascer-
tain whether counsel’s performance was ineffective.’’
(Citations omitted; emphasis in original; footnote omit-
ted; internal quotation marks omitted.) State v. Turner,
267 Conn. 414, 426–27, 838 A.2d 947, cert. denied, 543
U.S. 809, 125 S. Ct. 36, 160 L. Ed. 2d 12 (2004).
‘‘A defendant must satisfy two requirements . . . to
prevail on a claim that his guilty plea resulted from
ineffective assistance of counsel. . . . First, he must
prove that the assistance was not within the range of
competence displayed by lawyers with ordinary training
and skill in criminal law . . . . Second, there must
exist such an interrelationship between the ineffective
assistance of counsel and the guilty plea that it can be
said that the plea was not voluntary and intelligent
because of the ineffective assistance. . . . In
addressing this second prong, the United States
Supreme Court held in Hill v. Lockhart, 474 U.S. 52,
106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), that to satisfy
the prejudice requirement, the defendant must show
that there is a reasonable probability that, but for coun-
sel’s errors, he would not have pleaded guilty and would
have insisted on going to trial. . . . The resolution of
this inquiry will largely depend on the likely success of
any new defenses or trial tactics that would have been
available but for counsel’s ineffective assistance.’’ (Cita-
tion omitted; internal quotation marks omitted.) State
v. Scales, 82 Conn. App. 126, 129–30, 842 A.2d 1158,
cert. denied, 269 Conn. 902, 851 A.2d 305 (2004). ‘‘In its
analysis, a reviewing court may look to the performance
prong or to the prejudice prong, and the petitioner’s
failure to prove either is fatal to a [claim of ineffective
assistance of counsel].’’ (Internal quotation marks omit-
ted.) State v. Lameirao, supra, 135 Conn. App. 327.
In his appellate brief, the defendant argues that his
defense counsel rendered ineffective assistance for fail-
ing to investigate his case in various ways, including
failing to investigate his participation in the program,
the court’s failure to hold a hearing prior to terminating
his participation in the program, the circumstances of
one of his arrests, the timing and admissibility of his
blood test, compliance with General States § 14-227b,
‘‘the retaliatory nature’’ of the risk of injury and reckless
endangerment charges, the charge of failure to appear
for which defense counsel ‘‘would have uncovered
exculpatory evidence of the clerk sending the notice
to the wrong address,’’ and ‘‘if the defendant was under
the influence of psychotropic medications.’’ In
response, the state argues that ‘‘[n]one of the defen-
dant’s claims of ineffective assistance of counsel are
reviewable because they were not raised below, and,
to the extent that they were [raised below], he presented
no evidence to support any of them.’’ We agree with
the state.
To the extent that the defendant raised these grounds
before the trial court to support his claim that he should
be allowed to withdraw his guilty pleas based on the
ineffective assistance of counsel, all the court had
before it was the bare assertions that defense counsel
made at the beginning of the sentencing hearing, well
before he actually asserted that he had rendered ineffec-
tive assistance. As we already have discussed, the defen-
dant presented an inadequate factual and legal basis to
support those assertions. See Practice Book § 39-26
(‘‘[a]fter acceptance, the judicial authority shall allow
the defendant to withdraw his or her plea upon proof
of one of the grounds in [Practice Book §] 39-27’’
[emphasis added]). Additionally, with regard to the prej-
udice prong, neither defense counsel nor the defendant
articulated before the trial court, much less proved,
that but for counsel’s errors, the defendant would not
have pleaded guilty and would have insisted on going
to trial. In light of the foregoing, we conclude that the
defendant has failed to satisfy his burden of proving
that the guilty pleas resulted from the denial of effective
assistance of counsel. The court, therefore, did not
abuse its discretion in denying the defendant’s motion
to withdraw the guilty pleas based on the ineffective
assistance of counsel claim.
III
The defendant next claims that the court abused its
discretion by failing to conduct an evidentiary hearing
prior to terminating his participation in the program.
We disagree.
The following additional facts are relevant to this
claim on appeal. The defendant was arrested on May
5, 2014, and charged with operating a motor vehicle
while under the influence of intoxicating liquor in viola-
tion of § 14-227a.10 The defendant subsequently was
arrested on June 20, 2014, and charged for the second
time with operating a motor vehicle while under the
influence in violation of § 14-227a.
The defendant applied to participate in the program
pursuant to his second operating while under the influ-
ence charge. His application was accepted on February
20, 2015, and the program was granted on the defen-
dant’s behalf at a hearing held on April 2, 2015.11 The
transcript of that hearing reveals that the defendant
was to complete fifteen sessions and the program termi-
nation date was set for April 1, 2016. No hearing was
held on the program termination date, however,
because the court had not timely received the program
completion report.12
On May 11, 2016, a little over a month after the sched-
uled date of termination, the defendant was arrested
and charged for the third time with operating a motor
vehicle while under the influence in violation of § 14-
227a. The defendant, therefore, was facing three counts
of operating a motor vehicle while under the influence
in violation of § 14-227a, two counts of failure to appear
in the second degree in violation of § 53a-173, one count
of risk of injury to a child in violation of § 53-21, and
one count of criminal trespass in the first degree in
violation of § 53a-107. In an effort to secure another
opportunity to engage in treatment to avoid mandatory
incarceration for his third violation of § 14-227a, the
defendant reached a global Garvin agreement with the
state on his pending charges. That agreement included
guilty pleas to three counts of operating a motor vehicle
while under the influence as a first offender in violation
of § 14-227a, as well as guilty pleas to all other counts
under the Garvin agreement, with the state agreeing
to nolle the felony risk of injury to a child charge and
certain other changes brought against the defendant.
Subsequently, at the defendant’s February 2, 2018
sentencing hearing, the court discovered that the defen-
dant’s participation in the program had not been for-
mally terminated. Defense counsel requested a continu-
ance to ‘‘file motions and a brief on the issue of the
[program],’’ which was denied by the court. The court
then terminated the program, concluding that, ‘‘[b]y
way of plea agreement,’’ it ‘‘was the clear intention of
both parties when the plea agreement was entered in
front of Judge Prats that this would result in a convic-
tion for driving under the influence, as a triple first
offender. The defendant is receiving a substantial bene-
fit by way of a fully suspended sentence and being
allowed to vacate his [conviction of] risk of injury to
a child.’’ The court, thereafter, sentenced the defendant
according to the plea agreement.
‘‘We begin our analysis with a brief discussion of the
relevant statutory framework. Section 54-56g estab-
lished the program for individuals charged with vio-
lating § 14-227a. . . . The trial court has discretion to
grant or deny an application to participate in the pro-
gram.’’ (Citation omitted.) State v. Fetscher, 162 Conn.
App. 145, 150, 130 A.3d 892 (2015), cert. denied, 321
Conn. 904, 138 A.3d 280 (2016). ‘‘A person admitted to
the . . . program remains under the jurisdiction of the
court for control purposes until he has successfully
completed the program and his charges are dismissed.
If a defendant satisfactorily completes the program to
which he has been assigned, the defendant may apply
for dismissal of the charges against him and the court,
on reviewing the record of his participation in such
program . . . and on finding such satisfactory comple-
tion, shall dismiss the charges. . . . The statute clearly
requires the trial court to make an independent determi-
nation of the defendant’s satisfactory completion of the
prescribed program of alcohol education and treatment.
The trial court is not . . . relegated to the ministerial
role of rubber stamping the certification of the program
provider that the defendant has successfully completed
the assigned program. While the court may rely heavily
on the recommendation of the office of adult probation
or the program provider, such recommendations are
not conclusive. The court must determine for itself, and
enter a finding, that the defendant’s completion of the
program has been satisfactory. Otherwise, there would
be no purpose to the statutory requirement that the
defendant, upon completion of the program, return to
court and apply for dismissal of the charges against
him.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Descoteaux, 200 Conn. 102, 106–107, 509
A.2d 1035 (1986).
The defendant relies on the language of our Supreme
Court in State v. Hancich, 200 Conn. 615, 513 A.2d 638
(1986), to support his contention that his removal ‘‘from
the [program] without a hearing violates [§] 54-56g and
[his] due process rights.’’ In Hancich, the defendant
was charged with operating a motor vehicle while under
the influence in violation of § 14-227a and was, there-
after, admitted to the program. Id., 616-17. Before com-
pleting the program, however, the defendant again was
charged with operating a motor vehicle while under the
influence in violation of § 14-227a. Id, 617. On appeal
to our Supreme Court, the defendant claimed that the
trial court improperly refused to dismiss her initial
operating while under the influence charge. Id., 626.
Our Supreme Court explained that ‘‘[o]nce [the defen-
dant] had been admitted to the . . . program, the
defendant could not be removed unless the trial court
made an independent determination that she had lost
her eligibility to continue or that she had not completed
it successfully. . . . We note that in this case the trial
court need not have deferred its decision on the defen-
dant’s motion to dismiss to await the outcome of the
upcoming trial on the [second operating under the influ-
ence] arrest. The defendant was entitled to no more
than a hearing . . . and to an independent determina-
tion by the trial court that she had committed the act
underlying [her second arrest], and that based on that
act, she could not successfully have completed the . . .
program. Minimum standards of due process would
further require that the trial court state the reasons for
this decision on the record.’’ (Citations omitted; internal
quotation marks omitted.) Id., 627.
The defendant’s reliance on Hancich to support his
contention that he should have received an evidentiary
hearing is misplaced. In the present case, the defendant
pleaded guilty to the charge of operating a motor vehicle
while under the influence, for which he participated in
the program. The court terminated the program ‘‘[b]y
way of plea agreement,’’ concluding that it ‘‘was the
clear intention of both parties when the plea agreement
was entered in front of Judge Prats that this would
result in a conviction for driving under the influence,
as a triple first offender.’’ The court considered the
context of the entire plea, and it recognized that, with
the plea agreement, ‘‘[t]he defendant is receiving a sub-
stantial benefit by way of a fully suspended sentence
and being allowed to vacate his felony plea to the risk
of injury to a child.’’
The purpose of the diversionary program is to allow
first time offenders of § 14-227a an opportunity to reha-
bilitate so as to avoid further involvement with the
criminal justice system while protecting the public from
those who operate a motor vehicle while under the
influence of intoxicating liquor. See, e.g., State v. Desco-
teaux, supra, 200 Conn. 107. A dismissal of the charge
is incentive for achieving these public policy goals. It
is apparent from our review of the record that the court
recognized that, by pleading guilty to three counts of
operating a motor vehicle while under the influence of
intoxicating liquor, the defendant effectively conceded
that, despite participating in the program, he was not
entitled to a dismissal of that charge. In considering all
of the circumstances surrounding the defendant’s pleas,
the court properly made an independent determination
that termination of the defendant’s participation in the
program was warranted. Accordingly, the court did not
err in failing to afford the defendant an evidentiary
hearing prior to terminating his participation in the
program.
The judgments are affirmed.
In this opinion the other judges concurred.
1
‘‘A Garvin agreement is a conditional plea agreement that has two possi-
ble binding outcomes, one that results from the defendant’s compliance
with the conditions of the plea agreement and one that is triggered by
his violation of a condition of the agreement.’’ (Internal quotation marks
omitted.) State v. Yates, 169 Conn. App. 383, 387 n.1, 150 A.3d 1154 (2016),
cert. denied, 324 Conn. 920, 157 A.3d 85 (2017).
2
The record reveals that the court, Suarez, J., granted the program on
the defendant’s behalf at a hearing held on April 2, 2015. The defendant
was to complete fifteen sessions and the program termination date was set
for April 1, 2016.
3
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:
‘‘(1) The plea was accepted without substantial compliance with [Practice
Book §] 39-19;
‘‘(2) The plea was involuntary, or it was entered without knowledge of
the nature of the charge or without knowledge that the sentence actually
imposed could be imposed. . . .
‘‘(4) The plea resulted from the denial of effective assistance of coun-
sel. . . .’’
4
We note that, the transcript of the sentencing hearing reveals that defense
counsel initially sought ‘‘three or four days to file motions and a brief on
[the] issue of the [program].’’ The court responded to the defendant’s request
by seeking clarification as it viewed defense counsel as asking the court
not to honor the plea agreement. After giving defense counsel and the
defendant time to confer, defense counsel stated: ‘‘I’m not asking to abandon
. . . the agreement that we reached.’’ The court responded that the defen-
dant was either asking to not honor the agreement, or he was honoring the
agreement. Defense counsel then again asked for four days to file papers
with the court, which request the court denied on the basis that it had made
clear over a month ago that this was the day for sentencing. The court then
again sought clarification on what the defendant wanted to do. Defense
counsel stated: ‘‘[W]hat I’m asking, Your Honor, is the opportunity to provide
the court, and specifically the state, with documentation regarding the fail-
ures to appear.’’ The court replied: ‘‘That you don’t have today on what’s
the known sentencing date on a case where the pleas were entered [in]
October 2016. That request is denied.’’
5
We note that, after responding that he had nothing further, the court
stated that it found no legal reason to vacate the guilty pleas and then the
following colloquy occurred:
‘‘[The Defendant]: Your Honor—
‘‘The Court: You want to say something, go ahead.
‘‘[Defense Counsel]: Don’t say anything.
‘‘The Court: Absolutely. Go ahead.
‘‘[The Defendant]: No, Your Honor, I don’t.’’
The record reveals that the court gave the defendant ample opportunity
to discuss his motion and elaborate on his counsel’s arguments, but the
defendant chose not to do so.
6
In denying the defendant’s request for a continuance, the court noted
that it had already afforded the defendant numerous continuances leading
up to the sentencing hearing. The court also noted that it had made clear
to the parties on January 11, 2018, that the court would proceed to sentencing
on the date finally set for the sentencing hearing, February 15, 2018.
The record reveals that the defendant was afforded fourteen continuances
during the sixteen months between the acceptance of his guilty pleas and
his sentencing hearing; the defendant did not raise a challenge to the pleas
during those sixteen months.
7
We note that the transcript of the sentencing hearing indicates that the
court questioned the timing of defense counsel’s numerous, unsupported
assertions, which were brought up for the first time at the date he had
known for some time was set for sentencing.
8
In his appellate brief, the defendant also vaguely alleges that the court
should have granted his motion to withdraw his guilty pleas, pursuant to
Practice Book § 39-27 (2), and that his plea canvass was ‘‘improper’’ because
it ‘‘did not address [his] participation in the diversionary [program].’’ The
defendant, however, does not cite to authority or provide any analysis to
support those propositions. See Nowacki v. Nowacki, 129 Conn. App. 157,
163, 20 A.3d 702 (2011) (‘‘It is well settled that [w]e are not required to
review claims that are inadequately briefed. . . . We consistently have held
that [a]nalysis, rather than mere abstract assertion, is required in order to
avoid abandoning an issue by failure to brief the issue properly.’’ [Internal
quotation marks omitted.]) Moreover, the defendant did not raise those
claims before the court at the sentencing hearing. See Remillard v. Remil-
lard, 297 Conn. 345, 351, 999 A.2d 713 (2010) (‘‘It is well established that
an appellate court is under no obligation to consider a claim that is not
distinctly raised at the trial level. . . . The requirement that [a] claim be
raised distinctly means that it must be so stated as to bring to the attention of
the court the precise matter on which its decision is being asked.’’ [Citations
omitted; emphasis in original; internal quotation marks omitted.]). For these
reasons, we will not address the defendant’s claims that his motion to
withdraw his pleas should have been granted because the pleas were involun-
tary, pursuant to Practice Book § 39-27 (2), or that the plea canvass was
improper for not addressing his participation in the program.
9
See footnote 3 of this opinion.
10
The record reveals that the matter was eventually transferred from the
judicial district of New London to the judicial district of Hartford.
11
The record reflects that the court accepted the program with full knowl-
edge of the defendant’s prior operating while under the influence charge.
12
The program’s final progress report, dated August 9, 2017, indicates that
the defendant had satisfactorily completed the assigned program. The report
states in the comments section, however, that the defendant did not success-
fully complete the fifteen sessions and, instead, completed an inpatient
residential treatment from which he was discharged on March 18, 2016.
Proof of the defendant’s successful completion of the inpatient residential
treatment was not provided until July 20, 2017, well after the one year
program termination date set by the court. The report also notes in the
comments section that the defendant was arrested on May 11, 2016, for his
third operating a motor vehicle while under the influence charge in violation
of § 14-227a.