5 Conn. App. 113 | Conn. App. Ct. | 1985
The defendant appeals from a judgment of conviction of burglary in the second degree in violation of General Statutes § 53a-122 rendered upon his guilty plea. He claims that his plea was not voluntarily made, in violation of his constitutional right to due process. We agree.
A home was burglarized in Old Lyme. A witness saw the defendant on the burglarized premises on the date of the burglary and reported this to the state police.
The defendant was charged in both the Middlesex and New London judicial districts. In the Middlesex district, he was charged with larceny in the second degree in violation of General Statutes § 53a-123 and theft of a firearm in violation of General Statutes § 53-212, and he pleaded guilty to those charges in the Middlesex court. In the New London district, he was charged with burglary in the second degree in violation of General Statutes § 53a-102
This appeal arises out of the plea proceedings in the New London court. The defendant, his counsel, and the state’s attorney entered into a plea agreement and the following events took place in open court. The defendant first withdrew his plea of not guilty to the two counts in the information and the court vacated that plea. The clerk then read the first count1
There was no futher discussion initiated by either the attorneys or the court with respect to the nature of the charges then pending against the defendant.
As a preliminary matter, we note that the defendant did not make a motion to withdraw his guilty plea pursuant to Practice Book §§ 719 through 722. Nor did he otherwise preserve this error below. The invalidity of the plea is raised for the first time on appeal under the “exceptional circumstances” rule of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). Nevertheless, “because the error claimed by the defendant involves the violation of a fundamental constitutional right, we will consider it for the first time on appeal.” (Citations omitted.) State v. Childree, 189 Conn. 114, 119, 454 A.2d 1274 (1983).
The fundamental principles governing guilty pleas "are well integrated into our rules governing the daily administration of justice in this state. Practice Book § 711 (1) requires that the trial court determine that the defendant “fully understands . . . [t]he nature of the charge to which the plea is offered . . . .” Only recently we stated, “[t]he provisions of Practice Book § 711 are mandatory. State v. Childree, supra. It is the duty of the trial judge to comply strictly with its terms.” Finley v. Manson, 1 Conn. App. 260, 263, 470 A.2d 1234 (1984). Whether a trial judge has effectively complied with this duty ultimately determines whether a defendant’s conviction comports with the “universally recognized” requirements of due process. Smith v. O’Grady, 312 U.S. 329, 334, 61 S. Ct. 572, 85 L. Ed. 2d 859 (1941). “These considerations demand the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and its consequences. Boykin v. Alabama, [395 U.S. 238, 243-44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)]. We therefore require the record affirmatively to disclose
If one or more critical elements of a charged crime are not recited for the defendant’s benefit by the trial judge the resultant guilty plea is invalid. State v. Childree, supra, 121. Our review of the record indicates that none of the elements of the offense were disclosed to the defendant in the proceedings below.
The state argues that the trial court, and this court, may presume that defense counsel explained the nature of the offense to the defendant. We are aware that a trial court’s “substantial compliance”; State v. Suggs, 194 Conn. 223, 227, 478 A.2d 1008 (1984); with Practice Book requirements may pass constitutional muster when its actions are viewed in the context of the record as a whole. We reject, however, the state’s claim that we may presume that counsel has effectively informed his client of the elements of the offense when the record does not affirmatively disclose an adequate basis for that conclusion. “Our rules of practice prescribe a detailed procedure for acceptance of a guilty plea .... Practice Book §§ 712-713. Where the record fails to disclose substantial compliance with this procedure, to cure the omission by resorting to a presumption that counsel has performed a duty of the court would be inconsistent with the principle that the necessary elements for an effective guilty plea must appear in the record. Boykin v. Alabama, [supra, 242]; State v. Childree, supra, 120.” State v. Marino, 190 Conn. 639, 646-47 n.8, 462 A.2d 1021 (1983).
We recognize that “ ‘[e]xcept for those inquiries which are constitutionally mandated or are required by our rules; Practice Book, 1978, §§ 711-713; the court is not obliged to assume the role of the defendant’s counselor.’ ” State v. Eason, 192 Conn. 37, 45, 470 A.2d 688 (1984). Those basic “constitutionally mandated”
There is error, the judgment is set aside and the case is remanded with direction to permit the defendant to withdraw his guilty plea and to proceed in accordance with law.
In this opinion the other judges concurred.
General Statutes § 53a-102 (a) provides: “A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.”
The information recited only that, on the date and at the place in question, the defendant “did commit the crime of burglary in the second degree, in violation of Section 53a-102 of the Connecticut General Statutes.”
The balance of the court’s inquiry concerned the defendant’s waiver of his rights of confrontation and against self-incrimination, and other inquiries mandated by Practice Book §§ 711 and 712, but did not touch on the elements of the crime of burglary in the second degree. See footnote 1, supra.