34 Conn. App. 595 | Conn. App. Ct. | 1994
The dispositive issue on appeal is whether the trial court, in canvassing the defendant before accepting an Alford plea,
The defendant pleaded guilty to the crimes of possession of narcotics with the intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-277 and conspiracy to sell narcotics in violation of General Statutes § 53a-48 (a). Subsequent to the trial court’s acceptance of the plea, the defendant attempted to withdraw the plea pursuant to Practice Book § 719 et seq. A plea can be withdrawn on any of the grounds enumerated in Practice Book § 721.
Our Supreme Court has stated that “unless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable. ... In choosing to plead guilty, the defend
There are two caveats with respect to this duty. First, although the trial court need not state all the elements of the crime charged, it must recite the critical elements. State v. Childree, supra, 189 Conn. 123; State v. Evans, supra, 5 Conn. App. 117. In the present case, because the trial court did not state any of the elements, this distinction is irrelevant. Second, our Supreme Court has also stated that the recitation of the elements by the trial court is necessary only when “it is not appropriate to presume that defense counsel has explained the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.” State v. Childree, supra, 123.
Our appellate courts have concluded in several cases that the trial court could properly determine, upon inquiry, that defense counsel has explained sufficiently the elements of the offense to the defendant. We do not believe, however, that the present case falls into this category. In Oppel v. Lopes, 200 Conn. 553, 557 n.3, 512 A.2d 888 (1986), the trial court asked the
In Bowers v. Warden, 19 Conn. App. 440, 442, 562 A.2d 888, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989), an appeal from the habeas court, this court found that a similar inquiry gave rise to the presumption that the petitioner was advised of the elements by defense counsel. In that case, the trial court asked the petitioner if he understood the crime with which he had been charged, murder, and “what is involved in the charge itself,” to which the petitioner responded affirmatively. Id. In determining that the petitioner had been sufficiently apprised of the elements of the crime, the habeas court did not rely solely on the inquiry of the trial court. The habeas court turned to other factors in conjunction with the representation in finding that the petitioner was aware of the elements of the crimes with which he was charged. For example, two attorneys who had represented the petitioner at the plea hearing testified before the habeas court that they had each informed the petitioner of the elements of the offense prior to his plea. Id., 442-43.
The present case, while similar, is not of the same nature. Here, the trial court asked the defendant, “[Did your attorney] explain those charges to you so you understand, generally, what the state would have to prove to convict you of the charge?” The defendant
We reaffirm the principle that “[i]t is the duty of the trial judge” to comply with § 711. State v. Evans, supra, 5 Conn. App. 116. The presumption that defense counsel has explained the elements of the offense to the defendant arises only in limited circumstances where the record clearly supports that presumption. The inquiry in the present case, standing alone, is insufficient.
The judgment is reversed and the case is remanded with direction to allow the defendant to withdraw his guilty plea and for further proceedings in accordance with law.
In this opinion the other judges concurred.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). An Alford plea is one in which the defendant pleads guilty but does
Practice Book § 721 provides in pertinent part: “The grounds for allowing the defendant to withdraw his plea of guilty after acceptance are as follows: (1) The plea was accepted without substantial compliance with Sec. 711; (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 ... (5) There was no factual basis for the plea