State of Connecticut v. Shamon Clark (2011)

MEMORANDUM OF DECISION RE MOTION TO CORRECT ILLEGAL SENTENCE

Before the court is the defendant's motion to correct illegal sentence pursuant to Practice Book § 43-22,¹ dated October 8, 2010.   The following is the procedural history and the facts of record.

On November 16, 2006, the defendant pled guilty to one count of possession of narcotics in violation of General Statute § 21a-279(a) and one count of conspiracy to possess narcotics in violation of General Statutes §§ 21a-278(b) and 53a-48.   The court (Comerford, J.) canvassed the defendant and accepted the pleas based upon a recommendation for a total effective sentence of eighteen years, suspended after the execution of six and one-half years, five years of which were mandatory, followed by five years probation.

At the request of the defendant, who was not held in lieu of bond at that time, the case was continued for sentencing.   The state, therefore, asked that the court provide a Garvin ² warning to the defendant.   The court did so, advising the defendant that, should he not appear for sentencing or, should there be a finding of probable cause that the defendant committed a crime between the time of his plea and the sentencing, the court reserved the authority to sentence the defendant to the maximum period of incarceration allowed upon a conviction for the offenses.   The court indicated that the maximum period was twenty-seven years incarceration.   The defendant, who was represented by counsel at all times mentioned, expressly agreed to these conditions.³

The defendant's case was continued for sentencing until February 9, 2007.   At the sentencing hearing, the state advised the court that the defendant had been arrested for certain drug and weapon-related offenses at the time of the execution of a search and seizure warrant at his residence, on December 6, 2006.   It was also determined that the judicial authority presiding over the defendant's arraignment had made a finding of probable cause.   Following a sentencing hearing, Judge Comerford sentenced the defendant to a total effective sentence of eighteen years, suspended after the execution of twelve years, five years of which were mandatory, followed by five years probation.

The defendant then filed the instant motion to correct, claiming that the court imposed an illegal sentence by imposing it in an illegal manner.   A defendant may challenge his criminal sentence on the ground that it is illegal by filing a motion with the judicial authority pursuant to Practice Book § 43-22.  Cobham v. Commissioner of Correction, 258 Conn. 30, 38, 779 A.2d 80 (2001).   This includes a challenge on the ground, as made here, that a defendant's guilty plea is invalid.  Crawford v. Commissioner of Correction, 294 Conn. 165, 189, 982 A.2d 620 (2009).

In the present case, the defendant claims that the court imposed an illegal sentence because it failed to comply with Practice Book §§ 39-9 ⁴ and 39-10.⁵  The defendant maintains that the court did not advise the defendant that he could withdraw his pleas if the court were to subsequently reject the plea agreement based upon the receipt of new information.   Practice Book § 39-9.   The defendant also claims that the court rejected the plea agreement based upon new information and imposed a harsher penalty without affording the defendant an opportunity to withdraw his pleas.  Practice Book § 39-10.   The defendant concludes that his guilty pleas were, therefore, involuntary and that he should now be allowed to withdraw those pleas.   Practice Book § 39-27.⁶

“It is axiomatic that unless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable.”  State v. Childree, 189 Conn. 114, 119, 454 A.2d 1274 (1983).   This is because a defendant must have 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).

The court did not advise the defendant, pursuant to Practice Book § 39-9, that he could withdraw his pleas if the court were to subsequently reject the plea agreement based upon the receipt of new information.   However, our Appellate Court has held that strict adherence to Practice Book § 39-9 is not, by itself, dispositive of whether the defendant's plea is involuntary and he must be allowed to withdraw his plea.  State v. Irala, 68 Conn.App. 499, 516, 792 A.2d 109, cert. denied, 260 Conn. 923, 797 A.2d 519, cert. denied, 537 U.S. 887, 123 S.Ct. 132, 154 L.Ed.2d 148 (2002).

A defendant's guilty plea is not necessarily involuntary simply because the court has not literally complied with the rules of practice.  State v. Badgett, 200 Conn. 412, 418, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93 L.Ed.2d 373 (1986).   The inquiry must instead be on whether the constitutional principles of Boykin were satisfied.  State v. Irala, supra, 68 Conn.App. 516.

The defendant claims that his pleas were involuntary because the court rejected the plea agreement and imposed a harsher sentence on the basis of new information.   A plea agreement is not unlike a contract.  State v. Lopez, 77 Conn.App. 67, 77, 822 A.2d 948 (2003), aff'd, 269 Conn. 799, 850 A.2d 143 (2004).   In sentencing a defendant pursuant to a plea agreement, a court must accord specific performance to the agreement, or permit the defendant to withdraw his pleas.  Santobello v. New York, 404 U.S. 257, 262-63, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971);  State v. Littlejohn, 199 Conn. 631, 644, 508 A.2d 1376 (1986).  “A Garvin agreement is a conditional plea agreement that has two possible binding outcomes, one that results from the defendant's compliance with the conditions of the plea agreement and one that is triggered by his violation of a condition of the agreement.”  State v. Wheatland, 93 Conn.App. 232, 235 n.3, 888 A.2d 1098, cert. denied, 277 Conn. 919, 895 A.2d 793 (2006).

The agreement in this case was for a sentencing range under which the defendant would receive the minimum period if he did not violate the court's Garvin warnings and up to the maximum period if he did.   The court had retained a right under these circumstances, a right which had been communicated to the defendant and to which he had agreed, to sentence the defendant to the statutory maximum period of incarceration of twenty-seven years.   Here, the court fully comported with the plea agreement when it actually imposed a lesser sentence on the defendant.   See Council v. Commissioner of Correction, 286 Conn. 477, 492-93, 944 A.2d 340 (2008).

The plea agreement in this case was clear and unambiguous.   As in Garvin itself, there is no indication that the defendant was misled by any omission of the court to expressly advise him that he would not be allowed to withdraw his pleas if there was a finding of probable cause he had violated one of the court's conditions.  State v. Garvin, 242 Conn. 296, 311, 699 A.2d 921 (1997).   At no time during either the sentencing proceedings or during the hearing on the motion to correct illegal sentence was there any such suggestion.

Likewise, the defendant's claim that the court sentenced him on the basis of new information is not viable.   At the time of the defendant's guilty pleas on November 16, 2006, the court had specifically advised the defendant concerning the ramifications of new criminal activity prior to sentencing.   At sentencing, there was no dispute that there had been a prior judicial determination of probable cause that the defendant had committed other crimes on or about December 6, 2006.   See Council, 286 Conn. 483 n.9. A defendant's arrest, supported by probable cause in violation of a Garvin agreement is a proper basis for an enhanced sentence.  State v. Stevens, 278 Conn. 1, 13, 895 A.2d 771 (2006);  see also State v. Petaway, 107 Conn.App. 730, 743-44, 946 A.2d 906, cert. denied, 289 Conn. 926, 958 A.2d 162 (2008).⁷

For the foregoing reasons, the defendant's motion to correct illegal sentence is therefore denied.   So ordered.

KAVANEWSKY, J.

FOOTNOTES

FN1. Practice Book § 43-22 provides:  “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.”.  FN1. Practice Book § 43-22 provides:  “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.”

FN2. State v. Garvin, 242 Conn. 296, 699 A.2d 921 (1997)..  FN2. State v. Garvin, 242 Conn. 296, 699 A.2d 921 (1997).

FN3. The attorney who represented the defendant in the plea and sentencing proceedings is not the same attorney who has filed and represents the defendant regarding the motion to correct..  FN3. The attorney who represented the defendant in the plea and sentencing proceedings is not the same attorney who has filed and represents the defendant regarding the motion to correct.

FN4. Practice Book § 39-9 provides:  “If the case is continued for sentencing, the judicial authority shall inform the defendant that a different sentence from that embodied in the plea agreement may be imposed on the receipt of new information or on sentencing by another judicial authority, but that if such a sentence is imposed, the defendant will be allowed to withdraw his or her plea in accordance with Sections 39-26 through 39-28.”.  FN4. Practice Book § 39-9 provides:  “If the case is continued for sentencing, the judicial authority shall inform the defendant that a different sentence from that embodied in the plea agreement may be imposed on the receipt of new information or on sentencing by another judicial authority, but that if such a sentence is imposed, the defendant will be allowed to withdraw his or her plea in accordance with Sections 39-26 through 39-28.”

FN5. Practice Book § 39-10 provides:  “If the judicial authority rejects the plea agreement, it shall inform the parties of, this fact;  advise the defendant personally in open court or, on a showing of good cause, in camera that the judicial authority is not bound by the plea agreement;  afford the defendant the opportunity then to withdraw the plea, if given;  and advise the defendant that if he or she persists in a guilty plea or plea of nolo contendere, the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.”.  FN5. Practice Book § 39-10 provides:  “If the judicial authority rejects the plea agreement, it shall inform the parties of, this fact;  advise the defendant personally in open court or, on a showing of good cause, in camera that the judicial authority is not bound by the plea agreement;  afford the defendant the opportunity then to withdraw the plea, if given;  and advise the defendant that if he or she persists in a guilty plea or plea of nolo contendere, the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.”

FN6. Practice Book § 39-27 provides in relevant part:  “The grounds for allowing the defendant to withdraw his or her plea of guilty after acceptance are as follows:  (1) The plea was accepted without substantial compliance with Section 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;  (3) The sentence exceeds that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the judicial authority had deferred its decision to accept or reject the agreement at the time the plea of guilty was entered;  (4) The plea resulted from the denial of effective assistance of counsel ․”.  FN6. Practice Book § 39-27 provides in relevant part:  “The grounds for allowing the defendant to withdraw his or her plea of guilty after acceptance are as follows:  (1) The plea was accepted without substantial compliance with Section 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;  (3) The sentence exceeds that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the judicial authority had deferred its decision to accept or reject the agreement at the time the plea of guilty was entered;  (4) The plea resulted from the denial of effective assistance of counsel ․”

FN7. In his motion, the defendant additionally states that counsel who represented him at the time of his guilty pleas and at sentencing rendered ineffective assistance by failing to object to the court's finding of a Garvin violation and by failing to alert the court that the defendant should have been permitted to withdraw his pleas.   On the record presented, and for the same reasons stated hereinbefore, the court sees no basis for a claim of ineffective assistance of counsel..  FN7. In his motion, the defendant additionally states that counsel who represented him at the time of his guilty pleas and at sentencing rendered ineffective assistance by failing to object to the court's finding of a Garvin violation and by failing to alert the court that the defendant should have been permitted to withdraw his pleas.   On the record presented, and for the same reasons stated hereinbefore, the court sees no basis for a claim of ineffective assistance of counsel.

Kavanewsky, John F., J.