STATE OF CONNECTICUT v. KEVIN LYNCH
(AC 41420)
Lavine, Keller and Elgo, Js.
Argued April 22—officially released October 22, 2019
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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 (
- The trial court did not abuse its discretion in failing to conduct an evidentiary 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 permanently 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. - 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 articulated or proved that but for counsel‘s alleged errors, the defendant would not have pleaded guilty and would have insisted on going to trial. - 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 independent determination that the termination of the defendant‘s participation in the program was warranted.
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 prosequi as to the remaining charges, and the defendant appealed to this court. Affirmed.
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 (state).
Opinion
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 casеs 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
The sentencing hearing was held on Fеbruary 15, 2018. At that time, the state indicated that the defendant had complied with the conditions of the Garvin agreement 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 conviction. 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 program] 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
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 medications 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 аfter 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 combination 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 . . . documentation 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 continuances 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 completed detox and residential treatment.”
Subsequently, the following colloquy occurred:
“[Defense Counsel]: I would ask Your Honor for simply 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 it. 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 agrеement, 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 psychotropic medications from [the Department of Correction], 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 something that I normally point out. But, where‘s your legal support for that argument?
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“[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
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 opposеd 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 representing 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 scheduled 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 entеred in front of Judge Prats, that this would result in a conviction for driving under the influence, as a triple first offender. The defendant is receiving a substantial benefit 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 suspended, with three years of probation subject to certain special conditions, including a $500 fine for each conviction of operating a motor vehicle while under the influence, 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 agreement, 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 unpreserved, 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 [
“We further observe that there is no language in
“When the trial court does grant a hearing on a defendant‘s motion to withdraw a guilty plea, the requirements and formаlities 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 hearing 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 dialogue 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 necessary. . . . The case management authority is an inherent power necessarily vested in trial courts to manage their own affairs in order to аchieve the expeditious disposition of cases. . . . Therefore, the trial court is not required to formalistically announce that it is conducting a plea withdrawal hearing; nor must it demarcate 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 omitted.) State v. Simpson, supra, 329 Conn. 836–39.
In
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 sentencing 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-endеd 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
At that point, defense counsel stated for the first time: “Your Honor, I am claiming
In considering whether the defendant provided an adequate factual basis for requiring an evidentiary hearing, 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 defendant 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”
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 suppоrt for that proposition. When defense counsel referred to the rules of practice, the court properly concluded that the relevant provisions of
As to defense counsel‘s assertion that he had rendered ineffective assistance, on appeal, the defendant and the state disagree as to what basis defense counsel provided at the sentencing hearing to support his argument. The state argues that defense counsel provided only a “conclusory assertion that he had been ineffective . . . .” In contrast, the defendant argues that defense counsel provided evidence of his ineffectiveness 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 administered by the Department of Correction“; (3) he indicated 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 absolutе 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 hearing, which the court denied,6 and then subsequently to
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 further 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 documents with the court. Additionally, once defense counsel 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
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 circumstances 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
“[O]ur standard of review is abuse of discretion for decisions on motions to withdraw guilty pleas brought under
“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 quotation 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 rаised 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. . . .
”
“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 counsel‘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.” (Citation 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 omitted.) State v. Lameirao, supra, 135 Conn. App. 327.
In his appellate brief, the defendant argues that his defense counsel rendered ineffective assistance for failing 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 аdmissibility of his blood test, compliance with
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
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. Thе defendant was arrested on May 5, 2014, and charged with operating a motor vehicle while under the influence of intoxicating liquor in violation of
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 defendant‘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 termination 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 scheduled 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
Subsequently, at the defendant‘s February 15, 2018 sentencing hearing, the court discovered that the defendant‘s participation in the program had not been formally terminated. Defense counsel requested a continuance 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 conviction for driving under the influence, as a triple first offender. The defendant is receiving a substantial benefit 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 established the program for individuals charged with violating
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
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 substantial 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
The judgments are affirmed.
In this opinion the other judges concurred.
LAVINE, KELLER AND ELGO, JS.
Notes
“(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 counsel. . . .”
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.
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.