State v. Childree
State v. Childree
Opinion of the Court
This case arises ont of a claim by the defendant that, at the time he entered three pleas of guilty, he was not adequately apprised of the nature of the criminal charges against him, in violation of the federal constitutional requirement that a guilty plea, to be valid, must be made knowingly and voluntarily. The trial court found the defendant, Eugene Childree, guilty of robbery in the first degree, larceny in the first degree, and assault in the third degree, in violation of General Statutes §§ 53a-134 (a) (3),
The charges facing the defendant resulted from two separate incidents. The robbery and larceny
Thereafter, the two matters were consolidated and the defendant entered into a plea bargain whereby, in return for his pleading guilty to the three remaining counts, the state would recommend sentences of not less than five and not more than ten years each for the robbery and larceny counts, and a sentence of one year for the assault count. Pursuant to the bargain, the sentences were to run concurrently for a total effective recommended sentence of not less than five nor more than ten years. Alternatively, under the relevant criminal statutes, the defendant faced, if convicted of all three counts, a maximum sentence of not less than twenty-one nor more than forty-one years.
After questioning the defendant as to the facts underlying the charges, the court found that the pleas were voluntarily made and that there was a factual basis for them. The pleas were accepted, judgments of guilty were rendered as to all three counts, and the defendant was subsequently sentenced to concurrent prison terms of from three to eight years each for the robbery and larceny counts, and of one year for the assault count.
The defendant raises five issues on appeal. His first and second claims are that the trial court erred in determining that the plea of guilty to first degree larceny was knowing and voluntary, because, first, the trial court failed to apprise him of an element critical to the commission of that offense, i.e., a threat of physical injury to some person in the future; and, second, the facts to which he assented at the time he pleaded guilty failed to establish a basis for that same element of the offense. The defendant’s third claim is that the sole element that distinguishes first degree larceny from first degree robbery is the futurity of the threat in the larceny offense; therefore, convictions for both offenses, absent a determination that such a future threat was made, expose him to double jeopardy. ' His fourth claim is that, under the circumstances, his lawyer’s having advised him to plead guilty to first degree larceny deprived him of the effective assistance of counsel. The defendant’s fifth and final claim is that the trial court’s erroneous acceptance of the guilty plea to the larceny count rendered all
We begin our analysis by noting that the proper procedure for raising a claim that a guilty plea was not knowingly and voluntarily made is to make that claim in the trial court in the first instance. See Practice Book §§ 719 through 722.
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. McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969); State v. Godek, supra, 356; State v. Marra, 174 Conn. 338, 340, 387 A.2d 550 (1978); State v. Battle, 170 Conn. 469, 473, 365 A.2d 1100 (1976).
The defendant relies on Henderson v. Morgan, 426 U.S. 637, 96 S. Ct. 2253, 49 L. Ed. 2d 108 (1976), for his claim that the trial court’s alleged failure to apprise him of an element critical to the commission of first degree larceny has rendered his plea involuntary. In Henderson, the Supreme Court of the United States overturned a conviction based
Comparison of the trial court’s definition of first degree larceny with the statutory definition of the offense leads us to the conclusion that the futurity of the threat essential to a commission of larceny was not made clear to the defendant in the present case. General Statutes § 53a-119 provides, in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes ... (5) Extortion. A person obtains property by extortion when he compels or induces another person to deliver such property to himself or a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will: (A) Cause physical injury to some person in the future.” (Emphasis added.) The trial court made only one reference to the futurity of the threatened harm, when it explained that: “extortion is when he compels or induces another person to deliver such property up by reason of instilling
The state’s argument that use of the auxiliary verb “will” is sufficient to denote futurity is unpersuasive because “will” may equally express the certainty or likelihood of a certain event occurring.
No claim has been advanced that the trial court explained the futurity element of the crime of larceny elsewhere than in this one ambiguous phrase. We must therefore determine whether failure to inform the defendant about this element of future harm requires us to find a failure to ensure that the defendant possessed the “understanding of the
We recognize that Henderson v. Morgan falls short of announcing a per se rule that notice of the true nature of a charge always requires a description of every element of the offense. Henderson v. Morgan, supra, 647n. The trial court’s failure to explicate an element renders the plea invalid only where the omitted element is a critical one; id.; and only where it is not appropriate to presume that defense counsel has explained the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit. Id., 647.
Under the circumstances of the present case, however, we consider the element of future harm to be critical to the commission of larceny by extortion. The use or threatened use of immediate physical force is the element which distinguishes larceny from robbery. State v. Tinsley, 181 Conn. 388, 398-99, 435 A.2d 1002 (1980), cert. denied, 449 U.S. 1086, 101 S. Ct. 874, 66 L. Ed. 2d 811 (1981); see LaFave & Scott, Handbook of Criminal Law (1972) § 94, p. 699. If futurity of the threat of harm is omitted from the larceny count, then the sole element distinguishing the two counts is the threatened use of a dangerous instrument in the robbery count. Absent future harm, it appears impossible to commit the robbery offense without also committing larceny. See State v. Tinsley, supra, 397. The omission in the court’s explanation can therefore not be dismissed as inconsequential.
Nor do the circumstances of the present case warrant a presumption that defense counsel adequately explained the charge of larceny to the defendant.
We note finally that the defendant made no factual statement or admission necessarily implying that the threatened harm would occur in the future,
Having concluded that the plea to the larceny charge cannot stand, we must determine whether the deficiency of this plea impaired the voluntari
The absence of direet evidence that the greater exposure created by the larceny charge induced the other pleas does not refute the defendant’s claim that those other pleas were not knowing and voluntary, for two reasons. First, the record must affirmatively disclose that the pleas were knowing and voluntary; it is not the burden of the defendant to prove the contrary. Second, notwithstanding the state’s assertion that its sentencing recommendations were separate and distinct as to all three counts, it appears to have been the understanding of the trial court and the defendant that a recommendation of concurrent sentences was a material
“The Court: But it is your understanding, Mr. Childree, that the State is going to recommend at the time of sentencing the sentence of — .effective sentence on all three counts of not less than five nor more than ten years?
“The Defendant: Yes, sir.
“The Court: And that agreement upon the part of the State to make such a recommendation is part of the reason you decided to enter your pleas of guilty?
“The Defendant: Yes, sir.”
That the defendant’s awareness of the maximum sentence possible is an essential factor in determining whether to plead guilty is also recognized by Practice Book § 711, which provides, in relevant part: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he fully understands ... (4) ... if there are several charges, the maximum sentence possible from consecutive sentences . . ..” Accord United States v. Ammirato, 670 F.2d 552, 555 n.2 (5th Cir. 1982); III ABA Standards for Criminal Justice (1980) § 14-1.4(a) (ii); ALI Model Code of Pre-Arraignment Procedure (1975) ^ 350.4(1) (e) (i).
In this opinion Speziale, C. J., Parskey and Shea, Js., concurred.
“[General Statutes] See. 53a-134. robbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . (3) uses or threatens the use of a dangerous instrument . . . .”
“[General Statutes] See. 53a-133. robbery defined. A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”
“[General Statutes] Sec. 53a-122. larceny in the first degree: class b felony, (a) A person is guilty of larceny in the first degree when: (1) The property or service, regardless of its nature and value, is obtained by extortion . . . .”
“[General Statutes] Sec. 53a-119. larceny defined. A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .”
“[General Statutes] Sec. 53a-61. assault in the third degree: class a misdemeanor, (a) A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person . . . .”
Robbery in the first degree and larceny in the first degree are class B felonies. General Statutes § 53a-35 (a) provides: “For any felony committed prior to July 1, 1981, the sentence of imprisonment shall be an indeterminate sentence . . . .” Section 53a-35 (b)
Assault in the third degree is a class A misdemeanor. General Statutes 5 53a-36 provides: “A sentence of imprisonment for a misdemeanor shall be a definite sentence and the term shall be fixed by the court as follows: (1) For a class A misdemeanor, a term not to exceed one year . . . .”
Practice Book § 720 provides: “A defendant may withdraw his plea of guilty or nolo contendere as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his plea upon proof of one of the grounds in See. 721. A defendant may not withdraw his plea after the conclusion of the proceeding at which the sentence was imposed.”
Practice Book § 721 provides: “The grounds for allowing the defendant to withdraw his plea of guilty after acceptance are as follows:
(1) The plea was accepted without substantial compliance with See. 711;
(3) The sentence exceeds that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the court 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;
(5) There was no factual basis for the plea; or
(6) The plea either was not entered by a person authorized to act for a corporate defendant or was not subsequently ratified by a corporate defendant.”
Webster, Third International Dictionary (1971) defines “will” as “1 — used to express desire, choice, willingness, consent or in negative constructions refusal . . . 3a — used to express simple futurity . . . 3b — used to express simple action or intention without conscious reference to future time . . . .” The American Heritage Dietionary of the English Language (1978) defines it “1. simple futurity . . . 2. likelihood or certainty.”
Although we do not reach the merits of the defendant’s claim that the trial court’s questioning of the defendant failed to elicit a factual basis for the larceny, the facts as recited in the record and admitted by the defendant do not offer unequivocal proof that a future harm was threatened. See State v. Cutler, 180 Conn. 702, 704, 433 A.2d 988 (1980); State v. Marra, 174 Conn. 338, 343-45,
The state’s reliance on Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970), is misplaced in light of this provision of the Practice Book and our decision in State v. Collins, 176 Conn. 7, 404 A.2d 871 (1978). We need not now determine whether the subsequent overruling of a statute which may have induced a defendant’s guilty plea retrospectively renders the plea involuntary or unintelligent. In the instant case, the miscalculation resulted from an error of presently existing law.
Concurring Opinion
(concurring). I concur in the result. I write separately to state that I cannot agree that the circumstances of the present case do not warrant a presumption that defense counsel adequately explained the charge of larceny to the defendant. I do agree that the plea to the larceny charge cannot stand and that “the deficiency of this plea impaired the voluntariness and intelligence of the pleas to first degree robbery and third degree assault.” I do not, however, read or regard Henderson v. Morgan, 426 U.S. 637, 96 S. Ct. 2253, 49 L. Ed. 2d 108 (1976), as controlling in determining that the plea to the larceny charge was deficient.
In Henderson, the issue was “whether a defendant may enter a voluntary plea of guilty to a charge of second-degree murder without being informed that intent to cause the death of his victim was an element of the offense.” Henderson v. Morgan, supra, 638. In that case, the court specifically observed: “Normally the record contains either an explanation of the charge by the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the accused. Moreover, even without such an express representation, it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.” Henderson v. Morgan, supra, 647. Hender
It is entirely appropriate, however, to presume that defense counsel did explain the nature of the offense in sufficient detail to give the accused notice of what he was being asked to admit. This is so because the defendant answered in the affirmative the court’s inquiries not only whether he had discussed his plea with his lawyer and whether he was doing so on his advice but also that he was “satisfied with the advice he has given you.” That the presumption may properly be taken here, therefore, brings this branch of the matter squarely within that language of Henderson quoted above concerning such presumption.
The problem arises not from what we can thus fairly presume counsel told the defendant and what the defendant knew from his counsel, but from that explanation in the proceedings given by the court of the difference between larceny, larceny by extor
I, therefore, concur in the result.
Reference
- Full Case Name
- State of Connecticut v. Eugene Childree
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- 73 cases
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- Published