279 Conn. 293 | Conn. | 2006
Opinion
The defendant, Mario Aquino, entered a guilty plea under the Alford
The Appellate Court opinion sets forth the following facts and procedural history. “The defendant is a Guatemalan national who illegally entered the United States in 1986 and remained here as an illegal alien for the next seventeen years. At a plea hearing before the court on February 20, 2003, the state offered the following factual basis for the defendant’s plea: ‘In the city of New Haven back on April 7, 1989, around 4:50 p.m., police officers were called to 183 Fulton Street. That is the condominium address of the victim . . . Frank Rogers. [The victim] at the time was involved in the construction trade, and approximately six months prior to that date, he had taken in the defendant, who had no home and no work. He had employed the defendant and allowed him to live at his condominium. He was paying the defendant for the work he was doing and, on that date, [the victim] had expressed to the defendant, who was apparently an immigrant from Guatemala, that [he] wished for him to vacate the premises. The defendant didn’t take well to that request, approached the victim with what turned out to be a handgun and threatened the victim. He fired one shot at the victim, missing the victim. The victim was able to grab onto the defendant. They struggled over the gun. Another shot was fired into the ceiling of the premises. They fell down some stairs, and, eventually, the defendant made off without the gun. The gun was recov
“After these facts were recited at the plea hearing, the court conducted a plea canvass, advising the defendant, who was represented by an attorney, of his constitutional rights, of the factual basis of the state’s case against him and of the maximum sentence that might be imposed. With reference to the plea arrangement, the court inquired whether the defendant had been coerced in any fashion, either by threats or promises, to which the defendant answered in the negative. The defendant also acknowledged that he had consulted with his attorney before he had entered his plea and that he was satisfied with the advice that he had received from his attorney.
“In addition, the court inquired: ‘Do you understand [that] if you are not a citizen of the United States, conviction of the offenses with which you are charged could result in deportation, exclusion from admission into the
“On April 4, 2003, the defendant filed a motion to withdraw his plea. The motion alleged that, at the time the plea was entered, the defendant ‘did not have a clear understanding of the likelihood that by entering into the plea bargain proposed, he would be jeopardizing his continuing ability to reside in the United States and his ability to petition for naturalization.’ ” State v. Aquino, supra, 89 Conn. App. 397-99. In response, the court conducted an evidentiary hearing. Id., 399. The defendant testified at the hearing that his attorney told him at the time of the plea canvass that he might be deported as the result of the guilty plea. The trial court denied the defendant’s motion to withdraw his plea and the defendant appealed from the judgment to the Appellate Court. After the appeal was filed, the defendant was deported. Thereafter, the Appellate Court affirmed the trial court’s judgment and this certified appeal followed.
On appeal to this court, the defendant does not dispute the Appellate Court’s conclusion that his trial counsel advised him of the possible immigration consequences of his plea. Id., 407. The defendant claims, however, that the Appellate Court improperly determined that his attorney’s failure to advise him that deportation would be the automatic and inevitable result of his plea did not constitute ineffective assistance of counsel. Id., 410; see State v. Paredez, 136 N.M. 533, 538, 101 P.3d 799 (2004) (“when a defendant’s guilty
The defendant did not produce any evidence at the hearing on his motion to withdraw his guilty plea— indeed, he did not even claim — that he would be deported solely as the result of his guilty plea. While this appeal was pending, the defendant was deported.
The form of the judgment is improper; the judgment is reversed and the case is remanded to the Appellate Court with direction to dismiss the appeal for lack of subject matter jurisdiction.
In this opinion the other justices concurred.
Under North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), “[a]n individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.”
The record reveals that the defendant was deported on February 6,2004. Our careful review of the record reveals, however, that he has never claimed and that the record contains no evidence, that his guilty plea in the present case was the sole reason for his deportation. At the hearing on the defendant’s motion to withdraw his guilty plea, the defendant testified that he was in this country illegally and did not have a green card. His trial counsel testified that the defendant “was totally here without any papers at all.” Thus, his illegal immigration status could have been the reason for his deportation.
The Appellate Court concluded that the appeal was not rendered moot by the deportation because the defendant’s ability to petition for naturalization would be gravely impaired by the guilty plea. State v. Aquino, supra, 89 Conn. App. 401. Just as there is no evidence in the record before us establishing the reason for the defendant’s deportation, however, there is no evidence to