State v. Blue

644 A.2d 859, 230 Conn. 109, 1994 Conn. LEXIS 210

Opinions

Per Curiam.

This is a petition for certification to appeal to this court from the judgment of the Appellate Court affirming the trial court’s judgment. The trial court, after accepting the defendant’s plea of guilty, under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), to one count of robbery in the first degree, and after denying the defendant’s motions to withdraw his guilty plea, sentenced the defendant to a period of eight years incarceration, execution suspended after five years, and three years probation.

On appeal to the Appellate Court, the defendant challenged the trial court’s acceptance of his plea and its denial of his motion to withdraw the plea. The Appellate Court summarily affirmed the judgment of the trial court. State v. Blue, 33 Conn. App. 941, 638 A.2d 1098 (1994). The defendant now seeks further review of the trial court’s acceptance of his plea and its denial of his motion to withdraw the plea.¹ We have today ordered that certification be denied. State v. Blue, 230 Conn. 903, 644 A.2d 919 (1994).

Ordinarily, we do not explain the reasoning behind a denial of a petition for certification to appeal. In this case, however, we deem it appropriate to do so because the dissent mischaracterizes the trial court record and the law governing the trial court proceedings.

The issue raised by the petition for certification is whether the Appellate Court should have reversed the trial court’s denial of the defendant’s motion to withdraw his guilty plea. That motion arguably incorporated by reference an issue raised by a motion to disqualify counsel in which the defendant had raised his alleged inability to participate intelligently, knowingly and willingly in the plea canvass because he was, at that time, taking psychotropic medication. As a matter of law, the defendant cannot prevail because of State v. Watson, 198 Conn. 598, 504 A.2d 497 (1986). As a matter of fact, the record reveals that the trial court engaged in a thorough plea canvass to which the defendant responded appropriately and in some detail. Further, the record of the proceedings at the time of the motion to withdraw the plea supports the trial court’s determination that the defendant understood the plea canvass.

I

The record discloses the following facts and procedural history. On September 29, 1992, in the trial court, the defendant, represented by counsel, entered a plea of guilty under the Alford doctrine to one count of robbery in the first degree in violation of General Statutes (Rev. to 1991) § 53a-134.² The plea bargain that the state disclosed to the court contemplated a sentence of incarceration of no more than eight years, with the defendant having the right to argue for less at the time of sentencing. Before accepting the defendant’s plea, the court engaged in a lengthy canvass.

The transcript of the plea canvass discloses that the defendant answered many of the court’s questions with responses that, although not eloquent, were appropriate and responsive to the questions posed to him.³ The court found the plea to have been entered voluntarily, knowingly, intelligently, and with a full understanding of the charges and consequences. Significantly, insofar as the record discloses, neither person in the courtroom charged with responsibility for protection of the defendant’s rights—the judge, who observed the defendant as he went through the canvass, or the defendant’s attorney, who had spoken with the defendant before the entry of the plea and stood with him as he entered the plea—had any perception that, despite the presence in his system of medications, the defendant did not understand what he was doing. Indeed, this record is, at the least, susceptible of the inference that the medications helped, rather than hindered, the defendant in understanding the proceedings and their consequences for him.⁴

On October 28, 1992, the defendant filed a pro se “Motion To Dismiss Counsel,” dated October 22, 1992.⁵ This motion raised four substantive grounds of dissatisfaction with counsel: (1) failing to advise the defendant of a purported mandatory, nonsuspendable sentence under General Statutes § 53a-35a; (2) “ill-advis[ing] the defendant by having him plea[d] guilty under the influence of mind altering drugs”; (3) failing to inform the court of a request for a psychiatric evaluation and a “determination for CADAC”;⁶ and (4) misinforming the defendant “about his felony record conviction.”

The next court proceeding was on November 17, 1992. The defendant’s attorney noted that he had just recently seen the defendant’s pro se motion to withdraw the plea, and that the attorney was preparing a motion to withdraw the plea. The attorney also indicated that a psychiatrist had evaluated the defendant, and that the psychiatric report would be ready in approximately two weeks. The attorney made clear, however, that he had retained the psychiatrist for purposes of the sentencing, irrespective of the result on any motions to withdraw the defendant’s plea. The attorney therefore requested that all proceedings, including sentencing if the motions were denied, be continued to December 9. The court continued the case to December 9, without ruling on the defendant’s motion.

Before doing so, however, the court addressed the defendant directly about the matters raised in his pro se motion. The court asked the defendant whether he had a copy of the motion. The defendant responded, “Just a minute, sir.” The court then directed the defendant to his claim that his attorney had not advised him regarding the mandatory minimum sentence required by § 53a-35a, and the defendant responded, “Yes. That’s correct Your Honor.” The defendant then acknowledged that “Me and my counsel discussed that this morning,” and after his attorney explained that he would not be sentenced under that provision, the defendant indicated that he understood that.

The court also specifically addressed the defendant’s claim for an evaluation for CAD AC. The defendant stated: “I had requested an evaluation for CADAC. Okay? . . . Requested of my counsel. . . . From my counsel, I requested it. To have a CAD AC evaluation.” In the course of this colloquy, the court asked the defendant whether he had been evaluated for CAD AC in a 1990 case. The defendant responded: “Someone came and ... I don’t know exactly what it was, but someone came to see me. ... I never remember using CAD AC . . . .” The court then directed the defendant’s attorney to determine what had occurred in the 1990 proceeding.

With respect to the defendant’s claim that his attorney had misinformed him regarding his felony conviction record, it became clear that certain information in the presentence investigation report was incorrect. This information was that the defendant had numerous prior convictions under ten different aliases. The court and the defendant engaged in a lengthy colloquy, in which the defendant, responding appropriately and at length to the court’s inquiries, denied that he was the person named in those aliases.⁷ The court stated that it would contact the probation department personally in order to clear up this confusion.

With respect to the defendant’s claim that he had pleaded guilty under the influence of mind altering drugs, the defendant asserted that he had been coerced into pleading guilty by his attorney. When the court questioned why he had not indicated that fact during the canvass, the defendant stated: “Because, like I said, I was on drugs, okay?” The following colloquy then took place:

“The Court: Are you talking about the drugs that we discussed during the canvass on that day?

“The Defendant: Yes sir, yes.

“[Q.] You indicated to me very clearly in a transcript, which I read this morning, bears out that you indicated to me, in response to my questions, that you understood my questions.

“[A.] Well see . . . but, I’m going to tell you, that sometime the drugs that I was on or the drugs that they give me have me submit or commit myself to saying things or doing things that I’m not aware of. And I was trying to ... .

“[Q.] All right. That’s what you mean by number two, in your Motion to Dismiss Counsel, is that right? . . . That’s what you’re talking about.

“[A.] Yes.”

The defendant did not further pursue his motion to dismiss counsel. Instead, by motion dated December 8, 1992, and accompanied by a memorandum of law in support thereof, the defendant’s attorney moved, on behalf of the defendant, to withdraw the defendant’s plea. These motion papers did not rely on any claim that the defendant had been under the improper influence of drugs at the time of the plea. The sole basis for this motion was the claim that the court had been required by Practice Book §§ 711 and 721 (1) to advise the defendant of the mandatory one year minimum sentence provided by General Statutes § 53a-35a. In the memorandum, the attorney stated that he had “carefully reviewed the transcript of the judicial canvass and is of the opinion that the Court never made the Defendant aware of the mandatory minimum sentence for Robbery 1st Degree.”

The defendant’s attorney filed his motion when the parties appeared in court the next day, December 9, 1992. The attorney stated: “I’m prepared to move forward on a motion to withdraw plea for my client. If I am unsuccessful, Your Honor, I’m prepared to move forward on sentencing today.” The attorney then argued that the court’s failure to advise the defendant during the plea canvass of a mandatory minimum sentence of one year under § 53a-35a rendered the plea invalid. The attorney also stated, however, that “I realize that my client was aware of the plea agreement of eight years with the right to argue for less, and I think my client was not so naive to believe that he would walk out of here without any type of imprisonment, but the Practice Book section must be adhered to strictly, and, therefore, Your Honor, I feel my client does have a right to withdraw his plea.” (Emphasis added.) The court repeated its earlier findings that the defendant had knowingly and voluntarily entered his guilty plea and agreed to an eight year ceding on his sentence, and found also that a denial of the motion to withdraw would not result in any manifest injustice. Accordingly, the court denied the motion to withdraw the plea filed by the defendant’s attorney.⁸ The defendant’s attorney then stated that he was “prepared to move forward on sentencing remarks.”⁹

All the parties—the defendant, his attorney, the state and the court—then turned their attention to the matter of sentencing. The defendant’s attorney made a lengthy plea for leniency. In the course of his remarks, he referred to the report of John H. Felber, a psychiatrist who had evaluated the defendant on November 17, 1992, three weeks after the defendant prepared his pro se motion to withdraw his plea. The attorney also referred to a statement of the attorney’s wife, whom he represented to be a nurse practitioner, who had not examined the defendant, regarding the defendant’s medications. The purpose of these references was not to support a claim for withdrawal of the defendant’s plea, but to support a plea for leniency by the court in sentencing the defendant. Indeed, using Felber’s report for support, the attorney stated: “Now, I understand society wanting to warehouse mentally ill people who are a threat to society who exhibit antisocial behavior, but I think society would not be so quick to keep people like [the defendant] away if they can con trol his behavior. This, as far as I know, is the first time that he was on prescribed medication. From all reports, he’s not been any problem in jail. He’s under control of these drugs. He may very well be salvageable. I ask the court to take that into consideration.”

Felber’s report, which we have examined, indicated that the defendant “has been drug dependent on cocaine, heroin, crack, halcion and alcohol for more than ten years. In addition, he suffers from a psychotic disorder of a schizophrenic or schizoaffective nature. This illness is fairly controlled by psychotropic medication, Trilafon, Mellaril and Stelazine.” (Emphasis added.) The report also indicated that the defendant “committed the criminal offenses with which he has been charged, in order to pay for narcotics and satisfy his addiction.” Felber also stated that the defendant’s “psychotic disorder has never been thoroughly explored, diagnosed and treated.” (Emphasis added.) He stated that the defendant was a “seriously ill patient who is in need of extensive inpatient evaluation and therapy.” Although Felber’s report describes the defendant’s illness, it does not suggest that because of his medications, the defendant had been incapable of understanding and voluntarily engaging in the plea proceedings on September 29.

The defendant personally participated in the sentencing proceedings. We first note that at no time did the defendant, either personally or through his counsel, reassert his earlier claim that his plea had been involuntary because of the effect of his medications. He did, however, personally address the court, both orally and in writing.

Orally, the defendant asked the court for leniency because “I never had any violent acts before in my life against anyone, and that although the guy said that I pulled out the knife, I don’t—I can’t concentrate what happened because I pleaded guilty, but the knife fell out of my pocket, and the knife was seen. That’s what happened. I never drew the knife on anybody to hurt anyone. ... It started off as a larceny sixth. Because of the display of the knife, it changed—it made it to robbery, and I would like it to be considered.” (Emphasis added.)

Furthermore, the defendant also presented to the court a seven page handwritten letter, which the court examined, as have we. Significantly, although this letter was not filed with the court until December 9, it is dated “10/16,” six days prior to October 22, 1992, the date of the defendant’s pro se motion to withdraw his plea. Although in that motion he, for the first time, had claimed involuntariness of his plea because of his medications, nowhere in his seven page handwritten letter did the defendant even refer to the circumstances of his plea of guilty.

Before imposing sentence, the trial court addressed the defendant personally, and asked whether he had anything to add. The defendant responded: “No, just want to add, you know, that being incarcerated I lost a lot, you know, and I lost my family that I had custody of. I had a custody suit filed against me . . . while I’m incarcerated, and I also lost—I’m losing—I lost that, having custody of my children. I also lost a lot of other things while I was incarcerated, and I’ve been incarcerated fifteen months on this. I’d like that to be considered.”

In imposing sentence, the court asked the defendant: “[The court] is going to require you . . . to get some inpatient treatment when you are discharged from prison. You understand that?” The defendant answered, “Yes.” The court then imposed a sentence of eight years incarceration, execution suspended after five years, followed by three years of intensive probation, with special conditions of probation regarding psychiatric and substance abuse evaluation and treatment. In response to a question by the court, the defendant also indicated that he was then taking his medications.

II

The point of this lengthy and detailed recitation is that this record convincingly rebuts the defendant’s claims in his petition for certification and the dissent’s selective reading of the record in support thereof. The only suggestion in this record to support the defendant’s principal claim—that his plea of guilty was involuntary because he had taken his medications—is the defendant’s unsupported statement to that effect to the court on November 17, 1992. When viewed in the context of the entire record, however, that unsupported statement is simply insufficient to raise a legitimate question, adequate to invoke our certification discretion, as to whether the trial court: (1) should not have accepted, or should have permitted the defendant to withdraw his plea; or (2) should have required sua sponte an evidentiary hearing into the defendant’s competence to enter the plea.

First, it is explicit on this record that the defendant had taken his medications both on September 29, when he entered his plea, and on December 9, when he was sentenced. We can fairly presume that the same was true for November 17. Nonetheless, in all three court appearances the defendant engaged in appropriate and considerable dialogue with the court, and did so in terms not limited to monosyllables, the dissent’s suggestion to the contrary notwithstanding. Indeed, after having taken his medications, the defendant was clear enough in his mind to: (1) engage in the lengthy plea canvass; (2) give the court an account of his work and educational history; (3) request a CAD AC evaluation; (4) engage in a detailed and appropriate denial of the state’s claims regarding his prior record and alleged aliases; (5) prepare, after the plea proceedings, a lengthy letter to the court pleading for leniency but not asserting that he had not understood what he was doing when he pleaded guilty; (6) make an appropriate oral plea for leniency in sentencing, again, without asserting that he had not known what he was doing when he pleaded guilty; and (7) inform the court that his offense had “started off as a larceny sixth” but that “[b]ecause of the display of the knife . . . made it to robbery . . . .”

Second, the defendant’s attorney had spoken to the defendant prior to the plea proceedings on September 29, was with him in court during those proceedings and, according to his representation to the court, planned to confer further with the defendant immediately after those proceedings. Yet the attorney’s claims on behalf of his client are significantly devoid of any support for the defendant’s claim that his plea was involuntary because of the medications. Indeed, when his attorney, subsequent to his conversations with the defendant at the time of his plea and subsequent to the defendant’s pro se motion, filed and argued his motion to withdraw the defendant’s plea, that motion was confined to an assertion that the plea had been involuntary because of a failure to notify the defendant of a minimum mandatory sentence. Moreover, none of the attorney’s references to the defendant’s mental state, including the attorney’s reliance on his wife’s opinion and on Felber’s report, was made in the context of a claim that the defendant’s plea had been involuntary. In the context of the entire course of the trial court proceedings, there is a telling divergence between the defendant’s assertion on November 17 and his attorney’s efforts on his behalf.

Third, Felber’s report, which was the result of his evaluation of the defendant at the courthouse on November 17, the same day the defendant appeared in court, is also telling. Significantly absent from that report is any indication that the defendant had been unable to understand the nature of the proceedings when he pleaded guilty on September 29. Instead, the report relies on a detailed history, presumably obtained by Felber from the defendant, of his family, health, educational, criminal and substance abuse histories, and states, again presumably based on information given to Felber by the defendant, that the defendant “committed the criminal acts with which he has been charged, in order to pay for narcotics and satisfy his addiction.” Although Felber gave his opinion that the defendant “suffers from a psychotic disorder of a schizophrenic or schizoaffective nature,” a phraseology that the defendant has not sought to explain, Fel-ber also noted that: (1) the defendant’s illness is controlled by his medications; and (2) his “psychotic disorder has never been thoroughly . . . diagnosed . . . .” In sum, the record does not indicate that the defendant did not have the capacity to enter a voluntary and intelligent plea.

With respect to the law governing this case, it is clear that, were we to grant the defendant’s petition, the case would be controlled by State v. Watson, 198 Conn. 598, 504 A.2d 497 (1986), and decided adverse to the defendant. Consequently, there is no point in granting the defendant’s petition for certification.

“A defendant who challenges the validity of his guilty plea for lack of an evidentiary inquiry into his competence must make a showing that, at the time of his plea, the court had before it specific factual allegations that, if true, would constitute substantial evidence of mental impairment. Sanders v. United States, 373 U.S. 1, 21, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963). Substantial evidence is a term of art. Evidence encompasses all information properly before the court, whether it is in the form of testimony or exhibits formally admitted or it is in the form of medical reports or other kinds of reports that have been filed with the court. Evidence is substantial if it raises a reasonable doubt about the defendant’s competency . . . . Moore v. United States, 464 F.2d 663, 666 (9th Cir. 1972).” (Internal quotation marks omitted.) State v. Watson, supra, 198 Conn. 605.

“[I]n 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 purpose of determining whether to hold an evidentiary hearing, the court should ordinarily assume any specific allegations of fact to be true. If such allegations furnish a basis for withdrawal of the plea under [Practice Book] § 721, 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. See State v. Lasher, 190 Conn. 259, 266, 460 A.2d 970 (1983).” (Internal quotation marks omitted.) Id., 612-13.

In Watson, we rejected a similar claim that the trial court should have held an evidentiary hearing on the defendant’s motion to withdraw his guilty plea under Alford. In this case, as in Watson: (1) the information relied on by the defendant was elicited by the court during its plea canvass; (2) no medical report suggested that the defendant had been unable to understand the nature of the plea proceedings; (3) neither the defendant’s crime nor his demeanor at any time indicated irrationality or inappropriate affect; (4) the defendant’s attorney had not at any time raised any question regarding the defendant’s competence or put the defendant’s mental state in issue; (5) the defendant’s responses, both at the plea canvass and throughout the ensuing proceedings, indicated a full understanding of all of the proceedings; (6) the defendant’s claim on appeal, based on the purported effect of his medications, was not the principal focus of his efforts to withdraw his plea in the trial court; and (7) neither the defendant nor his counsel suggested to the court that an evidentiary hearing was in order. Finally, the defendant’s claims are sufficiently refuted by the entire record of the trial court proceedings.

The petition for certification is denied.

Footnotes

1

The two questions on which the defendant seeks review are: (1) “Whether the Appellate Court correctly decided that there was no error in the trial court’s acceptance of [the] defendant’s Alford plea and/or the trial court’s refusing to let him withdraw said plea, the defendant having claimed that there was inadequate assurance that the plea was intelligently, knowingly and voluntarily made?”

(2) “Whether the Appellate Court correctly decided that there was no error to be found in [the] defendant’s claim that the trial court failed to exercise its discretion to see if it seemed fair and just to allow [the] defendant to withdraw his plea?”

2

General Statutes (Rev. to 1991) § 53a-134 provides in relevant part: “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 ... (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument . . . .”

3

For example, the defendant told the court that he had gone to school for “twelve years,” and had graduated high school from “Weaver. Hartford.” He told the court that his work record included “Carpentry” and “Off-set printing.” When asked the nature of his illnesses, he stated: “Right now I’m being seen by a psychiatrist at Hartford Correctional. . . . Right now . . . I’m being seen by a psychiatrist in Hartford. And medical reasons. I’m seeing a doctor.” When asked the name of the psychiatrist and the number of times he had seen the psychiatrist, the defendant answered: “There’s several. Three. I only know one—Weiner. . . . Several times. ... I don’t know the amount.” With respect to his medications, the defendant was able to tell the court that he took “Several. . . . About three different kinds, I think.” When asked whether the doctor had told him the nature of his condition, he stated: “I couldn’t understand it.” He was able to tell the court, with respect to previous psychiatric treatment: “I had ... at home, and in Hartford, in the Correction Center.” When asked by the court whether he had any trouble understanding the court’s questions, he responded: “I understand everything you asked me so far.” When asked whether he understood everything his attorney had said to him while discussing the case in the lockup, he said: “Most of it, yes . . . . I can’t remember everything in detail.” In discussing his need for medications, he stated: “I have black-outs and . . . some other thing, I don’t know.” When the court asked him whether he understood what the court explained as the maximum penalty for robbery in the first degree, the defendant stated: “I understand what you’re saying, yes.” At this point the transcript indicates that it was the “Court” that said “I understand what you’re saying, yes.” It is clear, however, from the response and its context that this was a typographical error, and that in fact the response was that of the defendant.

When asked by the court whether he was on parole, he correctly responded “Yes,” and when asked how much time was left on his parole, he stated, “Yeah, about one year.” In addition, when asked whether he was then being held on bail or as a sentenced prisoner, he correctly responded “Both,” and when asked whether he understood that the court could impose its sentence in this case concurrent to the sentence for which he was on parole, he responded, “Now I do, yeah.” By the time the defendant was ultimately sentenced in this case on December 9,1992, he had completed serving the previous sentence.

Furthermore, upon being canvassed by the court regarding the medications he was taking, he indicated that, although all of the medications were then in his system, when the court asked him whether the medications made it more difficult or easier for him to understand the questions, he stated, “Well right now I understand,” and, when asked whether he had any trouble understanding the court, he said, “I don’t think so.” In addition, when asked whether he remembered the names of the medications, he said, “No. I think I have a few names written down.” His attorney then read the names to the court. The court then asked: “Okay. But you don’t have any problem understanding me. I’m trying to be as clear as possible, but I want you to tell me if you don’t understand any question. You with me so far?” The defendant answered, “Yes.”

In addition, the defendant responded appropriately to all of the other questions of the court during the canvass. In appropriate “Yes” and “No” answers, the defendant indicated his understanding that, by pleading guilty, he gave up his rights to a trial, to silence, to face and cross-examine his accusers, and to require the state to prove him guilty beyond a reasonable doubt. He indicated further that, although he was pleading guilty under the Alford doctrine, he did not agree with all of the facts of the crime stated by the prosecutor, that he understood he would probably be found guilty upon a trial, and that he had discussed the evidence with his attorney. He indicated to the court that he understood that: the “dangerous instrument” claimed by the state to have been used in the course of the robbery was a razor knife; the state would recommend a ceiling of eight years, but that he and his attorney could argue for less; if the court were inclined to impose more than eight years, he would have the right to withdraw his guilty plea and go to trial; although he did not agree with the state’s recommendation, it was in his best interest to enter the plea bargain; the court could impose the sentence either consecutive or concurrent to his present sentence; and, if he were not a United States citizen, his right to remain in •the United States could be affected by the plea. Finally, the defendant indicated to the court that his plea was voluntary and of his own free will, and that he had no questions of the court.

4

That inference, if it were to be drawn, would also be supported by the statement in the report of the defendant’s psychiatric expert, who evaluated him for purposes of sentencing, that the defendant’s “disorder of a schizophrenic or schizoaffective nature ... is fairly controlled by psychotropic medication, Trilafon, Mellaril and Stelazine.”

5

Although technically this motion only sought to dismiss the defendant’s counsel and for the court to appoint new counsel to represent him, because of the substance of the allegations made in the motion we consider it also as a motion to withdraw his earlier guilty plea.

6

This is a reference to the Connecticut alcohol and drug abuse commission.

7

For example, the defendant stated: “I . . . excuse me. I seen that also. I never ... I guess it’s just something that the police or whoever just decided just to give them all to me. Cuz I never used the names. I never been arrested on those names or remember using them names at all. . . . I never used those names at all. . . . None.” Indeed, one of the names was Darrell Bunkley, who was serving a twenty-two year sentence for manslaughter. See State v. Bunkley, 202 Conn. 629, 522 A.2d 795 (1987). When the judge indicated that he knew Bunkley, the defendant stated: “Yeah I know. I know Darrell Bunkley too. . . . Yeah, I definitely wouldn’t use his or Clifford [Bunkley’s] name.” The defendant then volunteered, regarding another purported alias, Jan E. Johnson, that “I know. I’ve seen this. This has been on there a few years. And ummm. Jan Johnson . . . that’s, I thought it was a girl’s name. And, well, I’m not familiar with none of them. I don’t know why they got . . . you know, I don’t know how they got like that. So, sometimes the police just give you the names as aliases.” The defendant restated his claim that his attorney had misinformed him, as follows: “At the time [of the plea] I felt I was coerced, I was led. I felt I pleaded guilty because of the fact that the way it was brought to me about my criminal record, that I was convicted of a large amount of felonies; and at the time I was threatening to being considered for [prosecution as a persistent felony offender].” Although his attorney acknowledged that the state’s information of twenty-three felony convictions, which he had not challenged, was incorrect, the attorney also asserted his belief, on the basis of what he believed to be the correct felony convictions, that the defendant “did have exposure as a persistent felony offender” and that this was a consideration in accepting the plea bargain. The defendant then volunteered: “And another thing that I’d like to bring out too, that record, 1970-71, I think some of that is. I was fourteen, thirteen, fifteen years old. ... I want to say it couldn’t have been me.”

8

The defendant does not raise the propriety of that ruling in this petition for certification.

9

The record does not disclose that the court ever took formal action on the defendant’s pro se motion to withdraw his plea, because (1) neither the defendant nor his attorney brought that motion to the court’s attention at that time, and (2) the denial of his attorney’s motion to withdraw the plea was followed immediately by the sentencing proceedings, in which the defendant participated personally. Nonetheless, for purposes of the defendant’s petition for certification, we consider the court’s denial of the attorney’s motion to withdraw the plea to be an implicit denial of the defendant’s pro se motion, because the court’s findings regarding the voluntariness of the defendant’s plea necessarily encompassed a rejection of his claim that he had been under the improper influence of drugs at the time of his plea. It is relevant to that claim, however, that the defendant, who, in contrast to his attorney, was the one to make that claim, at no time during the proceedings on December 9,1992, returned to his earlier assertion that he had not pleaded guilty voluntarily because of the influence of his medications.