77 Conn. App. 67 | Conn. App. Ct. | 2003
The defendant, Leonardo Lopez, appeals from the judgments of conviction, rendered after his guilty plea under the Alford doctrine,
The record and transcript of the proceedings before the trial court reveal the following relevant facts. The defendant is the owner of three residential buildings located in Waterbury. On April 9, 2001, the defendant pleaded guilty under the doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), to reckless endangerment and various fire code and health code violations that occurred between October, 1999, and October, 2000.
Upon his return to court, the defendant had failed to take advantage of that time to correct the housing code violations cited by the fire department and health department. The court raised the defendant’s bond to $40,000 with the understanding that he had until August
I
The defendant first claims that the court improperly accepted his guilty plea because it was not made knowingly, intelligently and voluntarily. Specifically, the defendant argues that the court did not adequately explain the terms of the plea agreement and improperly accepted his plea without first ascertaining whether he understood the elements of the charged offenses. He further argues that the court failed to inquire as to whether his counsel had advised him of the nature of each offense.
Because he did not attempt to withdraw his plea prior to sentencing, the defendant did not preserve his claim for appellate review. Accordingly, he requests that we review his claims under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), as refined by State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).
An overview of the law governing guilty pleas is necessary for our disposition of the defendant’s claim. “It is axiomatic that the trial court judge bears an affirmative, nondelegable duty to clarify the terms of a plea agreement. [U]nless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable.” (Internal quotation marks omitted.) State v. Winer, 69 Conn. App. 738, 745, 796 A.2d 491, cert. denied, 261 Conn. 909, 806 A.2d 50 (2002). The United States Supreme Court delineated the requirements for a valid guilty plea in Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). See State v. Benitez, 67 Conn. App. 36, 42, 786 A.2d 520 (2001), cert. denied, 259 Conn. 922, 792 A.2d 855 (2002). “Boykin requires that before accepting a defendant’s plea, a trial court must inform him of three core constitutional rights: His right to be free of compulsory self-incrimination, and his rights to a jury trial and to confront his accusers. . . . Those rights also are guaranteed by the constitution of Connecticut, article first, § 8, as amended by article seventeen of the amendments.”
Finally, “[w]e note that with respect to Golding review, we construe the question of whether the defendant knowingly and voluntarily entered her plea based on her understanding of the binding nature of that plea as similar to questions of voluntariness of the plea raised in the context of a defendant’s knowledge of the sentencing possibilities. . . . Therefore, to satisfy the third prong of Golding in the present case, we must determine whether the defendant was aware of actual sentencing possibilities, and, if not, whether accurate information would have made any difference in his decision to enter a [guilty] plea.” (Citation omitted; internal quotation marks omitted.) State v. Gordon, 69 Conn. App. 691, 695-96, 796 A.2d 1238 (2002).
With those principles in mind, we now address the defendant’s claim. The defendant contends that the record reveals that neither the court nor his counsel explained the essential elements of the housing code or fire code violations with which he was charged. “The
II
The defendant next claims that the court improperly found that he had breached his plea agreement. We disagree.
Our Supreme Court has held that a plea agreement is akin to a contract and that the well established principles of contract law can provide guidance in the interpretation of a plea agreement. See State v. Garvin, 242 Conn. 296, 314, 699 A.2d 921 (1997); State v. Trotman, 68 Conn. App. 437, 444, 791 A.2d 700 (2002). Where the contract language relied on by the trial court is definitive, the interpretation of the contract is a matter of law and our review is plenary. Empire Paving, Inc. v. Milford, 57 Conn. App. 261, 265, 747 A.2d 1063 (2000).
The defendant asserts that he entered his guilty plea pursuant to his belief that he only had to substantially correct the housing violations cited by the fire department and health department, and because he had repaired all but four of the twenty-five violations, he did not breach the agreement. By substantially performing the obligations of the plea agreement, the defendant maintains that, in good faith, he made sufficient efforts to comply with its terms.
Ill
The defendant’s final claim is that he was deprived of his constitutional right to effective assistance of counsel. Specifically, he claims that his counsel failed to make reasonable efforts to confirm and to ensure that he completely understood and appreciated the plea bargain offer. We disagree.
Initially, we note that the defendant failed to raise his claim before the trial court. “Our Supreme Court has consistently concluded that the preferred vehicle for an ineffective assistance of counsel claim is either a petition for a writ of habeas coipus or a petition for a new trial, not a direct appeal. . . . Absent the eviden
There is no factual record from which this court could determine that there was ineffective assistance or that any prejudice flowed from that representation. We conclude, therefore, that any such claim in this case cannot be made on direct appeal.
The judgments are affirmed.
In this opinion the other judges concurred.
“See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). A defendant who pleads guilty under the Alford, doctrine does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea.” (Internal quotation marks omitted.) State v. Webb, 62 Conn. App. 805, 807 n.1, 772 A.2d 690 (2001).
General Statutes § 53a-63 (a) provides: “A person is guilty of reckless endangerment in the first degree when, with extreme indifference to human life, he recklessly engages in conduct which creates a risk of serious physical injury to another person.”
General Statutes § 19a-36 (a) provides in relevant part: “The Commissioner of Public Health shall establish a Public Health Code and, from time to time, amend the same. The Public Health Code may provide for the preservation and improvement of the public health. Drainage and toilet systems to be installed in any house or building arranged or designed for human habitation . . . .”
General Statutes § 29-295 provides: “Any person who violates any provision of the Fire Safety Code shall be fined not less than two hundred nor more than one thousand dollars or imprisoned not more than six months or both.”
General Statutes § 47a-52 (c) provides: “When any defect in the plumbing, sewerage, water supply, drainage, lighting, ventilation, or sanitary condition of a rented dwelling, or of the premises on which it is situated, in the opinion of the department of health of the municipality wherein such dwelling is located, constitutes a danger to life or health, the department may order the responsible party to correct the same in such manner as it specifies. If the order is not complied with within the time limit set by the department, the person in charge of the department may institute a civil action for injunctive relief, in accordance with chapter 916, to require the abatement of such danger.”
In October, 1999, an inspector of the Waterbury fire department conducted an inspection of 289 Hillside Avenue and found twelve fire codes violations consisting of failure to have handrails, illumination for exit ways, a minimum of six feet, eight inches headroom in the front stairwell, and one hour resistance rating for wall and stairs. On February 28, 2000, the fire inspector reinspected the premises to determine if the violations had been abated. Between the first and last inspections, the fire department sent the defendant three certified letters advising him that the listed violations had to be corrected within fifteen days and warning that noncompliance would subject him to penalties under General Statutes § 29-295. On March 2, 2000, the defendant was served with a copy of an arrest warrant for his failure to fix the repairs.
In August, 2000, an inspector of the Waterbury health department conducted an inspection of 17 Easton Avenue and found an active sewage overflow. A letter dated August 8,1998, was sent to the defendant, informing him that he was in violation of Public Health Code; see General Statutes § 19a-36; and that he had one day to clear the blocked sewage line. The defendant failed to abate the septic system overflow and later was charged with one count of violating § 19a-36.
In September, 2000, the defendant was charged with one count of reckless endangerment in violation of General Statutes § 53a-63, for using a live extension cord wire to supply power from one of his houses to another.
In October, 2000, an inspector from the Waterbury health department cited the defendant with five Public Health Code violations at 20 Dikeman Street. The defendant received notice of the violations, but did not abate them and then was charged with five counts of violating General Statutes § 47a-52.
Practice Book § 39-19 requires a trial court personally to address the defendant in open court to determine that the defendant understands, in relevant part:
“(1) The nature of the charge to which the plea is offered;
“(2) The mandatory minimum sentence, if any;
“(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
“(4) The maximum possible sentence on the charge . . . and
“(5) The fact that he or she has the right to plead not guilty . . . and the fact that he or she has the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.”
Practice Book § 39-20 provides in relevant part: “The judicial authority shall not accept a plea of . . . nolo contendere without first determining, by addressing the defendant personally in open court, that the plea is voluntary and is not the result of force or threats or of promises apart from a plea agreement. The judicial authority shall also inquire as to whether the defendant’s willingness to plead . . . nolo contendere results from prior discussions between the prosecuting authority and the defendant or his or her counsel.”
Specifically, the defendant argues that he was advised of the elements of reckless endangerment only and not of the housing code or fire code violations.
Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.
“The constitution of Connecticut, article first, § 8, as amended by article seventeen of the amendments provides: ‘In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all
Our review of the transcript of the plea agreement does not reveal that the court asked the defendant if he had an opportunity to discuss the plea with his attorney.
The relevant portion of the state’s recitation of facts surrounding the fire code and housing code violations, in relevant part, is as follows:
“The Court: Okay. Give me the facts . . . please.
“[Prosecutor]: Reckless endangerment, Your Honor, September 25, 2000, [a detective from the Waterbury police department’s] detective bureau was with inspector Shawn McKay of the fire bureau prevention for the fire department where they saw an extension cord running across a couple of properties, exposed area, where a three year old boy was walking by. Live wires. It could have caused electrocution of any person coming in contact with the live wires.
“The Court: Tell me about the fire safety code.
“The Court: What were they, do you know?
“[Prosecutor]: They were, wall did not have one hour resistance rating, stairs did not have a one hour resistance rating, the exit way of the walls had to have a one hour heat egress, headroom was not a minimum of six feet, eight inches, which [it] is required to be, handrails were not in place and illumination was noncompliant in the exit ways.
“The Court: How do you violate sewage overflow?
“[Prosecutor]: He had active sewage overflow running from his property at 17 Easton Avenue out into the public roadway, which he failed to abate after receiving an order from the health department.
“The Court: Health code violations.
“[Prosecutor]: Those are relating to an apartment at ... 20 Dikeman Street in Waterbury. Several violations found by the health inspector, toilet— did not fix the hot water tap which was continually leaking hot water, light fixture in the kitchen was broken, mice and roach infestation throughout the apartment, and there was [a] heating problem. The heating system had been red tagged, was not operable. He failed to fix it after receiving an order to correct all of those.”
The following colloquy occurred between the court and the defendant during the plea canvass:
“The Court: “By pleading guilty, you’re giving up certain rights, your right to plead not guilty, have a trial before a judge or jury, have an attorney assist you at trial, present defenses, confront accusers, cross-examine witnesses and you are giving up your right against sefi-incrimination; do you understand that?
“[Defendant]: Yes, I understand.”
Even if we assume, arguendo, that the contract called for substantial rather than full performance, the defendant’s failure to make the repairs by July 2 and August 14,2001, did not demonstrate a good faith effort to comply with the plea agreement.
During the defendant’s plea agreement proceeding, the court acknowledged that the Dikeman Street property was in foreclosure, but it noted that the defendant still was responsible for making the necessary repairs until a third party had obtained title to the property.
Practice Book § 39-27 (4) provides that a defendant may withdraw a guilty plea if the plea results from the denial of the effective assistance of counsel.
“The Strickland-Hill standard is the appellate standard of review for ineffective counsel claims raised on a direct appeal” after a guilty plea. (Emphasis in original.) Baillargeon v. Commissioner of Correction, 67 Conn. App. 716, 732, 789 A.2d 1046 (2002). “In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court adopted a two part standard for evaluating claims of ineffective assis