State v. Brown

563 A.2d 1379, 19 Conn. App. 640, 1989 Conn. App. LEXIS 293
Connecticut Appellate Court·Decided September 5, 1989·No. 7278; 7279·Published·Cited by 13 cases

Opinion

O’Connell, J.

The defendant appeals from the judgments of conviction rendered following his guilty pleas entered pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), to three counts of violating drug laws. The defendant claims that the court erred in accepting his pleas in that (1) it misinformed him of the mandatory minimum sentence, (2) it did not determine on the record that the defendant understood the nature of his pleas under the Alford doctrine, (3) it failed to state on the record that the defendant understood the nature of the charges against him, and (4) there was an insufficient factual basis to support the pleas. We find no error.

The following facts are dispositive of this appeal. On January 26, 1988, the defendant appeared before the trial court and changed his pleas of not guilty to guilty under the Alford doctrine to two counts of sale of cocaine, in violation of General Statutes § 21a-278 (b), and one count of conspiracy to sell narcotics in violation of General Statutes §§ 21a-277 (a) and 53a-48. The defendant waived the presentence investigation and was immediately sentenced, pursuant to a plea agreement, to three concurrent nine year terms.

The defendant concedes that he did not raise these claims of error in the trial court. When a party fails to raise an issue before the trial court, that issue is ordinarily not reviewable as a claim of error on appeal. Practice Book § 4185. “Only in most exceptional circumstances can and will this court consider a claim, [642] constitutional or otherwise, that has not been raised and decided in the trial court.” Id.; State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973).

In the present case, the defendant claims that the circumstances surrounding his pleas and sentencing should excuse him from the requirement of raising his claims of error in the trial court. The gravamen of his argument is that because he was sentenced immediately following the entry of his pleas, he had no opportunity to reflect on the court’s plea canvass and to decide whether or not to object thereto. An analysis of this contention requires us to consider the relief sought in this court. The defendant asks that he now be allowed to withdraw his guilty pleas because of the claimed deficiencies in the court’s canvass.

Practice Book § 720 explicitly provides that a plea may not be withdrawn after the conclusion of the proceeding at which sentence is imposed. This rule is understandable when viewed from the standpoint of the more common procedure that entails a lapse of several weeks between the entry of a plea and the imposition of sentence, during which a presentence investigation (PSI) is conducted. The defendant’s argument, however, overlooks the fact that the cause of his immediate sentencing was his waiver of his statutory right to a PSI. Only the defendant can initiate the waiver of a PSI. See General Statutes § 54-91a. Accordingly, the defendant brought on the immediate sentencing and thereby eliminated the period during which he could make a motion to withdraw his pleas.

We conclude that the circumstances surrounding the entry of the defendant’s pleas and sentencing do not excuse him from properly preserving his claims of error. Therefore, in order to obtain review of his claims, he must bring them within the constitutional bypass [643] exception of State v. Evans, or, in the alternative, the plain error doctrine.1

The defendant’s first claim is that the trial court erred by misinforming him of the possible mandatory minimum sentence. He appears to be asserting a violation of Practice Book § 711 as well as a constitutional violation. In light of State v. Collins, 207 Conn. 590, 595, 542 A.2d 1131 (1988), the defendant’s claim of a § 711 violation is not re viewable under the Evans bypass doctrine. State v. Coleman, 17 Conn. App. 307, 312-13, 552 A.2d 442 (1989).

Turning to the defendant’s constitutional claim, in State v. Wright, 207 Conn. 276, 289, 542 A.2d 299 (1988) , our Supreme Court held that the trial court’s failure to advise the defendant of the mandatory minimum sentence does not implicate constitutional rights unless the pleas were not intelligently and voluntarily made. Id., 289. A limited review is necessary to determine whether the knowing and voluntary nature of the plea is affected. Id., 286-87. In State v. Coleman, supra, 311-12, this court held that an error in the court’s recitation of the mandatory minimum sentence did not affect a determination that the plea was knowingly and voluntarily made. The defendant, in the present case, received the sentence he bargained for. Thus, his “less than perfect understanding of all the aspects of his situation does not ‘inevitably render his guilty plea “unknowing” and therefore involuntary . . . .’ ” Id., quoting D’Amico v. Manson, 193 Conn. 144, 154, 476 A.2d 543 (1984); see also State v. Collins, supra, 596; State v. Baker, 17 Conn. App. 466, 469, 553 A.2d 1155 (1989); State v. Risk, 17 Conn. App. 447, 451-52, 553 [644] A.2d 1145 (1989). We conclude, after our limited review, that the defendant’s claim is not of constitutional import.

We also decline to consider this claim under the plain error doctrine because “[wjhere a trial court’s action does not result in any manifest injustice, a defendant’s claim under the plain error doctrine does not warrant review. State v. Miller, 202 Conn. 463, 469, 522 A.2d 249 (1987); State v. Hinckley, 198 Conn. 77, 87, 502 A.2d 388 (1985).” State v. Wright, supra, 288. Plain error review “ ‘ “is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in judicial proceedings.” ’ State v. Miller, supra, 469, quoting State v. Hinckley, supra, 87-88.” State v. Wright, supra, 288-89. Because the defendant received the sentence for which he bargained, he cannot now be heard to complain that it constituted manifest injustice. See State v. Coleman, supra, 312.

The defendant’s second claim is that the trial court erred in accepting his Alford pleas as knowing, intelligent and voluntary because the trial court did not determine nor does the record show that the defendant understood the meaning and nature of a plea under the Alford doctrine.

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State v. Brown, 563 A.2d 1379, 19 Conn. App. 640, 1989 Conn. App. LEXIS 293 (Colo. Ct. App. 1989).

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