State of Connecticut v. Ira Alston (2011)

PLEA

THE COURT:  Good afternoon.

ATTY. OVIAN:  Your Honor, Mr. Alston would like to have the opportunity to speak to the Court.   Thank you very much.   Douglas Ovian appearing with the Public Defender's Office for Mr. Alston.

Your Honor, Mr. Alston was summoned to court for his case to move forward to jury selection today.   I informed Mr. Alston of the availability of the jury panel in my recent discussions with him up here in this courtroom interview room during the past twenty minutes.

During the hour prior to that, I did not talk to him about the jury mainly because I wanted Mr. Alston to have an opportunity to talk to me about the case without the weight of the jury's presence influencing and perhaps standing in the way of our being able to have discussion about the matter before we move to decision-making time.

I appreciated having that first hour with him.   I can tell the Court that I was just alerted to this matter returning to focus on late Wednesday and I was not here yesterday.   I was out sick.   I did return to the court today for this matter, and I appreciate the Court's time that it has provided me with Mr. Alston today.

Mr. Alston would like to have an opportunity to question certain aspects of the discussion I've had

shave with, and when the correctional staff came to pick them up, both inmates indicated that they no longer had them and they had flushed them down the toilet.

Clearly, one of the razor blades turned into this weapon that Mr. Alston made.

There's an agreement for one year to serve and that will be served consecutively to any previous imposed sentence.

THE COURT:  Mr. Alston, have you had enough time to talk this over with your attorney?

MR. ALSTON:  No.

THE COURT:  Would you like some more time?

ATTY. OVIAN:  Excuse me for just a moment, please, Your Honor.

THE COURT:  More time means we start the trial this afternoon.   So—I don't have any leeway in this.

ATTY. OVIAN:  Could I have just a moment with him?

THE COURT:  Sure.

MR. ALSTON:  I gave a truthful answer.

THE COURT:  That's fine.

ATTY. OVIAN:  Could I have just a moment, please?   Thank you, Your Honor.   May the Court ask the question again, please?

THE COURT:  I'll give you a different question, Mr. Alston.   Have you discussed with your attorney your change of plea from not guilty to guilty?

MR. ALSTON:  Today?

THE COURT:  Yes.

MR. ALSTON:  Yes.

THE COURT:  Okay. And has your attorney explained to you what the nature and the essential elements are of the crime that you're pleading guilty to?

MR. ALSTON:  According to his own perception.

THE COURT:  I don't know what that means.   Either he did or he didn't.   Did he discuss with you what the State would have to prove in order to convict you at trial?

MR. ALSTON:  He discussed with me what's in the information, so I guess, yeah.

THE COURT:  Does yeah mean yes?

MR. ALSTON:  He discussed with me the elements that he feels the State has to prove.

THE COURT:  Okay. Well, the statute that you're charged with is possession of a weapon or a dangerous instrument in a correctional institution.   And it says that a person is guilty of possession of a weapon or dangerous instrument in a correctional institution when being an inmate of such institution he knowingly makes, conveys from place to place, or has in his possession or under his control any firearm, weapon, dangerous instrument, explosive or any other substance or thing designed to kill, injure or disable.

That's what the statute says, and that's what they would have to prove, that you were an inmate in a correctional institution and that you had in your possession a weapon and the weapon is a dangerous instrument.   Don't you agree?

ATTY. OVIAN:  That's what the statute says.

MR. ALSTON:  But he asked me to agree.

THE COURT:  Do you agree that that's what the statute says, that's what the State would have had to prove?

MR. OVIAN:  What you just quoted from the statute, I recognize that's what the statute said.

THE COURT:  Okay. And that's what the State would have had to prove.   I mean they would have to prove that you were an inmate and that you were in possession of this homemade device, instrument or weapon, and that it was something that could be used to hurt somebody.

MR. ALSTON:  Can I ask a question?

ATTY. OVIAN:  Hold on, sir.

THE COURT:  That's what it says.   That's what the State would have to prove.

MR. ALSTON:  Right.   Would they have to prove that it was a dangerous instrument?

THE COURT:  Or—a dangerous instrument or a weapon or a firearm or an explosive or any other substance that could—that it was designed to kill or injure or disable another person.   That's what it says.

ATTY. OVIAN:  The statute speaks in the alternative to begin with and then throughout the rest of it.

MR. ALSTON:  I really have a lack of understanding here.

ATTY. OVIAN:  Mr. Alston has wondered if I had given him the correct advice on it being either a weapon or a dangerous instrument and that fulfilling the statute—but as the Court can see by the language, either would fulfill the statute.

THE COURT:  Yes. Exactly.

MR. ALSTON:  I still have a lack of understanding because whether it was—he saying it was as a weapon or a dangerous instrument.   I asked him the way they've got to prove that such a weapon or dangerous instrument was used to be classified as such.

THE COURT:  No, it does not.

MR. ALSTON:  Okay.

THE COURT:  It doesn't have to be used.   All you have to do is have it in your possession, not that you've used it, but just that you have it.   Having it is the crime.

ATTY. OVIAN:  Thank you, Your Honor.

THE COURT:  If you used it, then it would be a separate charge of an assault or something of that nature in addition to being in possession of it.   So that's what this is.   This is just being in possession of that object.   That's what the State has to prove, in addition to the fact that you were an inmate at the time.

Okay. Does that clear up your mind about that?

MR. ALSTON:  I guess so.

THE COURT:  Okay. And I guess what I'm trying to get at is that you understand what the State would have had to prove if you went to trial?

MR. ALSTON:  No, I don't understand.

THE COURT:  And you don't understand that?

MR. ALSTON:  No, I don't.

THE COURT:  Okay. So why don't we just let this go and have you go to trial and that will take care of everything because I can't take your plea if you don't understand what's going on.   And maybe we should have a competency hearing in addition to all of that to see if there's something wrong with your brain.

MR. ALSTON:  I'm only answering the question as truthful as possible.

THE COURT:  Well, I understand.

ATTY. OVIAN:  I think what—

ATTY. HEMINGWAY:  Your Honor—

ATTY. OVIAN:  I think what he's mistaking, Your Honor, is whether he agrees with you or not.

MR. ALSTON:  No.

ATTY. OVIAN:  I think the issue is what the State has to prove in this case.   Whether or not he agrees with it, he has received the explanation of it that the law requires and that is an answer that he can say yes to.

Saying yes doesn't mean he agrees with it.   It's just that's what he's been told it is.   I mean a person doesn't have to agree with the law.   A person just needs to acknowledge that the law has been—

MR. ALSTON:  But the question was—the question was, Do I understand?

THE COURT:  And you don't understand?

MR. ALSTON:  I don't understand it, but what I do understand—what I do understand is regardless of what—with the representation that I've been given by Douglas Ovian, that it really doesn't matter.   So weighing those options is I go to trial with his representation, there's no way I'm going to be successful whether I'm guilty or not guilty.   So I'm just going to take the one year instead of going to trial with him and getting—what did you say—twenty-five—whatever he said.

THE COURT:  Is this a straight plea or is this an Alford Plea?

ATTY. OVIAN:  Well, it's interesting, Your Honor.   Mr. Alston's issues have tended to focus primarily on due process issues at the front end of the case as opposed to the factual basis that would be proved by the State at the trial.   I'm not saying he wouldn't have factual differences later, but I explained the Alford Plea to him earlier;  and I believe that Alford could account for not just differences with the Court's factual—I'm sorry with the State's factual basis, but with the right to take the advantage of a plea bargain if one feels their legal challenges would fail as well.

So if the Court wishes to accept this as an Alford Plea—

THE COURT:  No. I just pass—I'm not suggesting anything.   I just want to know.

ATTY. OVIAN:  I just want to ask him because I told—he would offer the Alford qualification if he wanted to himself.   Would you like me to do that for you at this time, so that that will create for the record a disagreement on the record with certain aspects of this plea but an understanding that the Court can still find you guilty?

So can the Alford Plea be entered—

MR. ALSTON:  I don't even understand what is that Alford Plea. This is new to me.   I didn't get no notice.   I didn't even know I had Court today.   I get pulled in, and he's telling me all of this that we're starting a jury trial.   He didn't even discuss trial strategy with me.   So in light of all of that, I know I'm unprepared for a trial.   With his representation there ain't no way I will be successful at a trial.   It just came up today.   Now Alford came up today.   All of this is new today.   And I don't understand—I never seen the Alford case.   I don't know what Alford requires, so in light of one year to what he says, twenty-five years, and the representation that I'm given, I'm stuck between a hard spot and a rock.

THE COURT:  So tell me what you want to do?

MR. ALSTON:  In light of everything I just said, I don't have the necessary means to employ private counsel.   I'm not saying that I'm guilty.

ATTY. OVIAN:  So do you wish to go forward—

MR. ALSTON:  Huh?

ATTY. OVIAN:  So do you wish to go forward and ask the judge to accept this plea agreement?

MR. ALSTON:  But I'm answering the question as truthful as possible.   What do you want me to—lie?   He asked me do I understand something.   If I say yes, I understand it, that's a lie.

ATTY. OVIAN:  I think that whether you understand or whether agree—

MR. ALSTON:  I agree to take the one year.   That's what I agree to.   Whether I understand the elements of the crime?   No. Whether they've been—he told me, he told me what they are, that's what he told me.

ATTY. OVIAN:  I think that understanding them and agreeing with them are two different things.

MR. ALSTON:  Right.   That's what I'm saying.   I agree—

ATTY. OVIAN:  I think he understands—the Court is using understanding—ratifying that this was explained to him, yes.   Understanding in terms of agreeing, that's something else.   But in an Alford Plea the Court could accept this plea without him agreeing with all of the aspects of it.

THE COURT:  Well, I'll tell you what I'll do.   I'll go through the canvass and at the end of the canvass if I'm not satisfied, then you just go next door and start the trial or start picking the jury.

In any case, Mr. Alston, I've gone over—I've gone over with you what the elements are of the crime that you're charged with, and Mr. Ovian has done the same.   And you still don't understand—I think you understand what it is, but you don't understand how it is—how it affects you and what happened to you in this case.

I tend to think that you understand that these are the things that the State has to prove, one, you were an inmate;  two, you were in possession of an item that could be designated as a dangerous instrument because it's a sharp instrument that could do some pretty big damage if it had been done.

You're not being charged with hurting anybody.   You're just being charged with being in possession of something that you shouldn't have been in possession of, and that's what the State would have had to prove.   And I guess I don't quite understand why you don't understand that.

MR. ALSTON:  Because according to the statute a dangerous instrument has to be used.

THE COURT:  No. It doesn't say that anywhere in the statute.   Nowhere in the statute does it say that.

MR. ALSTON:  That's what he showed me.

THE COURT:  It doesn't even hint that you have to use it.

MR. ALSTON:  That's what he showed me in the statute.

ATTY. OVIAN:  No. Actually—

MR. ALSTON:  53a–7.

ATTY. OVIAN:  He's talking about the definitional statutes.   That's not—— this statute defines—does not require a definition for the dangerous instrument, Your Honor, because the State could proceed under the notion that it's a weapon, and they were referenced back to the earlier section of the code where the—of the statutes where dangerous instrument talks about requiring use doesn't apply because if we look at this as a weapon, says weapon or a dangerous instrument, the weapon does not require adherence to the earlier definition earlier in the Connecticut General Statutes.

MR. ALSTON:  Now, I can agree to that, that's what he told me.   Now, understanding as—is written, I don't understand—that's where my lack of understanding comes in.

THE COURT:  Okay. You don't understand why it's a crime to be in possession—

MR. ALSTON:  No.

THE COURT:—of  an instrument that could slash somebody?

MR. ALSTON:  No.

THE COURT:  Because that's all that they have to prove, not that they'd do it, but that you have it in your possession an item that could harm somebody.

ATTY. OVIAN:  And his difficulty was that there's one statute that says that, and then there's this other statute that says it has to be used, but that's not a crime statute.   That's a statute that describes dangerous instrument, and in this particular case, the State could call it a weapon and not have to be bound by an articulated definition.

THE COURT:  I know that, and you know that, but I don't think that Mr. Alston thinks that that's what the law is, but that's what it is.

ATTY. GEDANSKY:  Your Honor, it's actually I think a little even simpler than that because the definition of this statute goes even further—”or any other substance or thing designed to kill, injure, or disable.”

So it doesn't have to be a weapon by some definition.   It doesn't have to be dangerous instrument by some definition.   It just has to be anything.

THE COURT:  That's what it says—”any other substance or thing designed to kill, injure or disable.”

In any case, Mr. Alston, that's what the elements of the crime are, and you heard what the prosecutor said, that you were in possession of this item while you were an inmate in a correctional institution.

Do you understand that by pleading guilty today, you're giving up your constitutional right to have a trial—and we're ready to give you a trial today, this afternoon to get started on the trial if you want to do that—but by pleading guilty you're giving up your right to have a trial.   Do you understand that?

MR. ALSTON:  I understand that.

THE COURT:  Okay. If you had a trial, your lawyers would represent you and you would not have to testify if you didn't want to.   You could not be forced to say anything.   You could just remain silent during the course of the trial if that's what you wanted to do.

Do you understand that also?

MR. ALSTON:  I understand that.

THE COURT:  Also, if you had a trial, you would be entitled to confront and cross-examine all of the witnesses who the State would call.   And during the course of the trial, you would be entitled to offer evidence in your own behalf, your own defense if you chose to do so, but you wouldn't have to.   You don't have to do anything during the course of the trial if you don't want to.   Do you understand that also?

MR. ALSTON:  I understand that.

THE COURT:  And finally, if you had a trial you could require that the State prove beyond a reasonable doubt each of the elements that make up the crime that you're pleading to as I've just described to you and read to you several times.   Do you understand that?   That's the evidence they have to produce.

ATTY. OVIAN:  That's—

THE COURT:  That's what they have to produce.   They have to prove beyond a reasonable doubt that you were in possession of the instrument that you weren't permitted to have.   It was a dangerous instrument and you had it in a correctional institution while you were an inmate.   That's what they have to prove.   Do you understand that?

MR. ALSTON:  I understand that.

THE COURT:  Okay. Now, I hate to even ask this because it's—you're not thinking the way that I'm thinking—but I have to ask you, Is anyone threatening or forcing you to enter this plea today.

MR. ALSTON:  Forced by?

THE COURT:  By anybody?   Is anybody threatening you that if you don't—that you have to plead guilty today?

MR. ALSTON:  Not in the sense that you're presenting it.   It means like physical harm?

THE COURT:  I'm talking about any kind of coercion, threats—

MR. ALSTON:  I feel pressured, yes.

THE COURT:  If you don't plead guilty, we're going to do something to your family.   If you don't do something, we're going to take you out and beat you up—that type of thing.

MR. ALSTON:  Not in that context, no.

THE COURT:  Okay. And the penalty for this—this is a—it's a Class B felony, and that means not less than one, no more than twenty years—

ATTY. GEDANSKY:  Yes, Your Honor.

THE COURT:—and  a fine of up to fifteen thousand dollars i Think.

ATTY. GEDANSKY:  I lost track of the fines.   I think you're right, though.

THE COURT:  I think that's where it is.   So if you went to trial, you would be facing—your top of the limit from one to twenty and a fine of up to fifteen thousand dollars as a Class B felony, and that could be added on to whatever sentence or sentences you're currently serving right now.

ATTY. OVIAN:  And that would be in the absence of any enhancements, Your Honor.

THE COURT:  Exactly, there are other enhancements as well, but that's basically what the penalty could be.

In this case the offer that's being made to the State and to your attorney is one year consecutive.   That's what the plea agreement would be and that's what would be imposed if we get through this canvass properly.   Do you understand that?

MR. ALSTON:  That's what he told me, yes.

THE COURT:  Okay. So you understand that that's what the penalty is?

MR. ALSTON:  That I face one to twenty.

THE COURT:  No. If you plead guilty—if you plead guilty today to this charge, the plea agreement is that you'll get one year consecutive.

MR. ALSTON:  Right.

THE COURT:  I mean it's either one year consecutive or there's no deal.   I mean that's what it is.   You can't get any more than that with the plea agreement.   If I can't find you guilty or if I can't accept your plea, then you go to trial and the maximum that you face—I don't know what you would get—I'm just telling you the maximum would be one to twenty.   I'm not the judge that would be sentencing you in that case.   It's the judge who would be trying the case.

Okay. So you understand that?

MR. ALSTON:  Right.

THE COURT:  All right.   Now, have you had any kinds of medications or anything of that nature, any kind of alcohol, medications, prescribed medications, over-the-counter medications in the last twenty-four hours?

MR. ALSTON:  No.

THE COURT:  Are you being treated by any kind of a physician or mental health professional right now?

MR. ALSTON:  No.

THE COURT:  I have to advise you that if you're not a citizen of the United States, conviction of this offense could have the consequence of deportation, exclusion from readmission into the United States, or denial of naturalization pursuant to the laws of the United States.   Do you understand that also?

MR. ALSTON:  Right.

THE COURT:  Has your attorney explained that to you?

MR. ALSTON:  No. He didn't explain that part.

ATTY. OVIAN:  The stuff about—pardon me, Your Honor.   What did the Court just say?

THE COURT:  I asked—the immigration situation.

ATTY. OVIAN:  Yes, I did.   Excuse me.   Pardon me, Your Honor.   I did refer to immigration issues—

MR. ALSTON:  He did not.

ATTY. OVIAN:—but  I welcome the Court reminding him that deportation is part and parcel of the immigration and position I referred to in the lockup.

THE COURT:  I can't ask you if you're a citizen.   I'm not permitted to do that.   So instead of doing that, I'm just going to ask you when and where were you born—when and where?

MR. ALSTON:  I was born 4–18 1983 Stamford, Connecticut, Stamford Hospital.

THE COURT:  Okay. What I have to communicate to you is the possible effects of a conviction on your status to stay in this country.   So what I asked was—or was telling you is that this conviction if you are not a citizen of the United States could result in your being deported, kicked out of the country, you could be refused re-entry into the country.   Let's say you went to the Bahamas for a weekend and you came back, they might not let you in.

MR. ALSTON:  I understand.

THE COURT:  And also failure—you wouldn't be permitted to become a United States citizen.   But if you are a—if you are a citizen of the United States, they don't apply.   It would be easier if I could just ask that question, but I'm not permitted to.

MR. ALSTON:  You asked me, did he discuss that with me.

THE COURT:  Okay. And you've said no.   So I've discussed it with you and you understand what that's all about.

MR. ALSTON:  Right.   Right.

THE COURT:  So moving onto the DNA, because this is a—you may have already done this, I don't really know—but because this is a felony, everybody who is convicted of a felony, no matter what the felony is, is required to provide a DNA sample, and the results of that are placed in a data pool and used by law enforcement agencies.   So everybody who's in prison, even if you're not in prison, if you're given a suspended sentence, if it's a felony, you have to provide a biological sample, which is swabbed inside of your cheeks.   Do you understand that?   I think you must know about that.

MR. ALSTON:  What?

THE COURT:  I say you must know about that because that's a common thing now.

MR. ALSTON:  No, they don't do that.

THE COURT:  Well, they will.   Before you get out, they do.

MR. ALSTON:  He discussed that with me about taking the—

THE COURT:  Okay. So you understand that.   That's a requirement.   It's the law.   It's not a choice.   It has to be done.   The law says you have to do it, no matter who you are or what—as long as it's a felony.

Okay. Now, you understand that by pleading guilty, you're giving up your right to have a trial.   You understand that if you plead guilty, the sentence is going to be one year consecutive to whatever sentences you've been previously given?

You've indicated to me that you understand what the plea agreement is, and I'm going to ask you once more are you sure that this is what you want to do today because it has to be decided now.   I need to know whether or not you—I'm asking you for a final time is this what you've decided to do, not that you like it, but this is what you've decided to do and it's your decision.   It's your decision right now, but if I find you guilty, then the decision is gone.

MR. ALSTON:  In light of the circumstances, yes, I did decide.

THE COURT:  Okay. And this is what you want to do today?

MR. ALSTON:  In light of the circumstances, yes.

THE COURT:  All right.   Do either counsel know of any reason why I should not accept the plea?

ATTY. OVIAN:  None, Your Honor.

ATTY. GEDANSKY:  No, Your Honor.

THE COURT:  Is there anything that I might have missed in that rambling—those questions?

ATTY. OVIAN:  No, Your Honor.

ATTY. GEDANSKY:  No, I don't think so, Your Honor.

THE COURT:  Okay. Then the Court finds the plea to have been entered knowingly, voluntarily, and intelligently with the effective assistance of counsel.   There's a factual basis for the plea.   It's accepted, and a finding of guilty to one count of a weapon in an institution, 53a–174a, may enter.

Are you going to be waiving a presentence investigation?

ATTY. OVIAN:  We are, Your Honor.

THE COURT:  Have you discussed that with Mr. Alston?

ATTY. OVIAN:  Yes, I have, Your Honor.

THE COURT:  Do you agree with that, Mr. Alston?

MR. ALSTON:  He talked to me about that today.

THE COURT:  Do you want to do that?   I mean if you want to have a presentence investigation, that's fine, but that's a risk.

MR. ALSTON:  I accept the plea offer.

THE COURT:  Okay. So there's a waiver of the presentence investigation.   You know what a presentence investigation is, don't you?

MR. ALSTON:  Yes.

THE COURT:  All right.   There's already one on file.   I'm not sure what another one would do in any case, but your attorney and you are indicating that you don't necessarily need that;  so I'll find that there's a waiver.

All right.   Mr. Ovian?

ATTY. OVIAN:  Nothing further, Your Honor, except thanks to the client, the Court, and the State's Attorney for taking the time to work with Attorney Hemingway and I on the resolution of the matter.

THE COURT:  And Ms. Hemingway, is there anything you wanted to add?

ATTY. HEMINGWAY:  The only thing I would add, Your Honor, is that this has been a very difficult process for Mr. Alston, and I know that reaching this decision was wrenching for him.   And I know that he's grateful to both the State's Attorney and the Court for the opportunity that has manifested here, but I also know that he has a very inquisitive mind;  and I think that that will likely serve him well in his future endeavors.

THE COURT:  All right.   Thank you.   Mr. Alston, is there anything you would like to say before I impose the agreed-upon sentence?

MR. ALSTON:  Do I have the right to appeal?

THE COURT:  I think you probably have a right to appeal, sure, if you want to appeal.   Why did you plead guilty if you wanted to have an appeal?   If you have an appeal, you end up getting a trial.

MR. ALSTON:  That's—that was the issues here.

ATTY. OVIAN:  Excuse me for a moment.

MR. ALSTON:  What I'm going to say is that the only reason why I'm taking the plea is because I feel under these circumstances there has been nothing done on my behalf that would even give me the remotest possibility of being successful at a jury trial.   Weighing that against the State's resources, I have no other choice but to accept one year or go to trial under these circumstances and possibly to be exposed to twenty-five years.   But I did ask him whether or not—my attorney, Douglas Ovian—whether or not if I plead guilty, do I have the right to appeal, he told me no.

THE COURT:  I think you can appeal.   I think anybody can appeal.

ATTY. OVIAN:  Correct.

THE COURT:  Whether the—the Appellate Court may just throw it out, but you can always file an appeal.   And I think you certainly can do that, but my question is, If you really wanted to do it—let's say that you did that, what happens is you come back and everything starts from the beginning and you have a trial.   And the trial—there's not likely a whole lot of change that's going to be made between now and three years from now.

MR. ALSTON:  The grounds on which I wanted to appeal would most likely dismiss the arrest warrant if I was successful, and like that, it would not be a trial.   But I'm saying under the circumstances of right now.

THE COURT:  Okay. Those are choices that you'll have to make.

In any case, based upon the plea agreement, the sentence of the Court is one year in the custody of the Commissioner of Corrections to be served consecutively to any and all sentences previously imposed.   Any costs may be waived.

ATTY. OVIAN:  Thank you, Your Honor.

ATTY. GEDANSKY:  Thank you, Your Honor.

THE CLERK:  There was seized property.

ATTY. GEDANSKY:  Why don't we just hold onto that for a while?

THE COURT:  Okay. Thank you.   We're in adjournment.

(This matter concluded.)

Sullivan, Terence A., J.T.R.