State v. Warner
State v. Warner
Opinion
*187
The defendant, Blake Warner, appeals from the denial of his motion to withdraw his guilty pleas, made pursuant to Practice Book § 39-27(4),
1
and his request for an evidentiary hearing. Specifically, the defendant claims that the court should have conducted an evidentiary hearing to determine if his counsel, Attorney Frank Riccio, Jr., provided ineffective assistance by failing to conduct an independent investigation as to whether a purported witness for the state would testify against him. He also claims that the court "abused its discretion when presented with a prima facie claim of ineffective assistance of counsel-by way of a [
State v. Fernando A.,
The following facts and procedural history inform our resolution of this appeal. On October 16, 2014, the defendant pleaded guilty under the Alford doctrine 3 to strangulation in the second degree in violation of General Statutes § 53a-64bb and violation of a protective order in violation of General Statutes § 53a-223. In setting forth the factual basis for the plea in the first case, the state recounted that in the early morning of December 9, 2013, the defendant grabbed the victim 4 by the throat, impeding *466 her ability to breathe. At the defendant's arraignment that same day, the court issued a protective order. As to the factual basis for the violation of protective order in the second case, the state noted that on April 4, 2014, pursuant to a search and seizure warrant, the police found weapons in the defendant's attic, in violation of the protective order's prohibition *189 of the possession of weapons. 5 After a canvass, the court accepted the defendant's pleas, finding that they were knowingly and intelligently made with the assistance of counsel. The case was continued to January 5, 2015, for sentencing. The recommended sentence was five years incarceration, execution suspended after two years, and three years probation.
Prior to sentencing, the defendant filed a motion to withdraw his guilty pleas and a motion to vacate the protective order. At the sentencing hearing, new counsel, Attorney Norman A. Pattis, appeared on behalf of the defendant and requested a continuance to hold an evidentiary hearing on the defendant's motion to withdraw his guilty pleas. Pattis set forth two grounds for the motion to withdraw. First, immediately prior to his pleas, the defendant had been informed by Riccio that the state had a witness who would testify that the defendant had made certain inculpatory statements to him. The defendant then decided to enter guilty pleas. After the court accepted the pleas, the defendant confronted the purported witness, who denied that he was prepared to testify against the defendant or that he had heard the defendant inculpate himself. As a basis for withdrawing his pleas, the defendant alleged that Riccio rendered ineffective assistance of counsel by relaying this information to the defendant without first conducting an independent investigation of this witness prior to the defendant's pleas.
Second, Pattis noted that the defendant's pro se motion to vacate also alleged ineffective assistance of counsel as to the imposition of the protective order. Specifically, Pattis claimed that the public defender assigned to the defendant at his arraignment on December 9, 2013, neither requested a hearing pursuant to
*190
State v. Fernando A.,
supra,
In response, the state requested that the court proceed with sentencing immediately. After Pattis acknowledged that he was not challenging the adequacy of the plea canvass, the court ruled: "I think that the issues that had been raised should be raised in a habeas corpus proceeding as opposed to an alternative proceeding. So I am going to deny the defense's request for a continuance." After the defendant exercised his right of allocution, the court sentenced him to the total agreed upon sentence of five years, execution suspended after two years to serve and three years of probation. The court entered permanent protective order prohibiting the defendant, inter alia, from assaulting the victim or entering her dwelling. This appeal followed.
In his appellate brief, the defendant claims that the court abused its discretion on two separate instances. "First, the court deprived the defendant of an evidentiary hearing ... in violation of State v. [
*467
Fernando A.,
supra,
Our standard of review for the trial court's decision on a motion to withdraw a guilty plea under Practice Book § 39-27 is abuse of discretion. See
State v. Andrews,
In order to prevail on this claim, the defendant "must satisfy two requirements.... 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." (Internal quotation marks omitted.).
State v. Nelson,
We are guided in our analysis of the defendant's claim here by this court's decision in
State v. Salas,
*192
Id., at 543,
On appeal, the defendant in
Salas
argued that the court improperly denied his motion for an evidentiary hearing. Id., at 544,
"In considering whether to hold an evidentiary hearing on a motion to withdraw a guilty plea the court may disregard any allegations of fact, whether contained in the motion or made in an offer of proof, which are either conclusory, vague or oblique. For the purposes of determining whether to hold an evidentiary hearing, the court should ordinarily assume any specific allegation of fact to be true. If such allegations furnish a basis for withdrawal of the plea under [§ 39-27 ] and are not conclusively refuted by the record of the plea proceedings and other information contained in the court file, then
an evidentiary hearing is required.
" (Emphasis in original; internal quotation marks omitted.)
*193
After reviewing the transcript from the plea canvass and the affidavits submitted on behalf of the defendant in
Salas,
we concluded that the trial court erred by not conducting an evidentiary hearing. Id., at 550,
Similarly, in the present case, the defendant alleged that because of Riccio's failure to investigate the purported state's witness, his subsequent plea was unknowing and involuntary. There was nothing to conclusively refute this allegation of fact before the trial court. We are in accord with both the state and the defendant in concluding that the court should have provided the defendant with an opportunity to develop that claim fully. We conclude, therefore, that the judgment must be reversed and the case remanded for an evidentiary hearing.
6
See
As for the second ground for withdrawing his plea, the defendant asserts that the court should have permitted an evidentiary hearing for his claim that his assigned public defender was ineffective in not requesting a hearing pursuant to
State v. Fernando A.,
supra,
*194
In
State v. Wright,
supra,
The court in
Wright
also rejected the defendant's contention that he was denied the constitutional right to an attorney when he appeared at the protective order hearing without counsel. Id., at 432-33,
In the present case, the defendant's
Fernando A.
claim is barred by the collateral bar rule as described in
State v. Wright,
supra,
The judgments are reversed and the case is remanded for an evidentiary hearing to determine whether the defendant should be allowed to withdraw his guilty pleas on the basis of his claim that his counsel rendered ineffective assistance by failing to investigate the state's purported witness, and for further proceedings according to law.
In this opinion the other judges concurred.
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 ... (4) The plea resulted from the denial of effective assistance of counsel...."
In
State v. Fernando A.,
supra,
"Under
North Carolina v. Alford,
In accordance with our policy of protecting the privacy interests of the victim of the crime of criminal violation of a protective order, we decline to identify the victim or others through whom the victim's identity may be ascertained.
The protective order had stated that the defendant was to "surrender or transfer all firearms and ammunition."
We note that our consideration of this issue is limited solely to whether the defendant was entitled to a hearing. We make no determination of whether Riccio provided ineffective assistance of counsel to the defendant.
The court noted that "[i]f the defendant believed that the order did not comport with the statutory requirements of [General Statutes] § 46b-38c (e), he had two lawful remedies available to him. He could have: (1) sought to have the order modified or vacated by a judge of the Superior Court pursuant to Practice Book § 38-13 ; or (2) appealed the terms of the order to the Appellate Court in accordance with General Statutes § 54-63g." (Footnote omitted.)
State v. Wright,
supra,
Reference
- Full Case Name
- STATE of Connecticut v. Blake WARNER.
- Cited By
- 3 cases
- Status
- Published