State v. Daley
This text of 841 A.2d 243 (State v. Daley) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Opinion
The defendant, Codlyn B. Daley, appeals from the judgment of conviction, rendered by the trial court subsequent to his plea of nolo contendere, of one count of larceny in the second degree in violation of General Statutes § 53a-123.1 The defendant’s sole claim on appeal is that the court improperly denied his postsentence motion to withdraw his plea. Specifically, the defendant claims that the court’s plea canvass was defective in that it failed to apprise him of the elements of the crime of larceny in the second degree and that the plea, therefore, was not entered knowingly and voluntarily as required by (1) the due process clause of the fourteenth amendment to the United States constitution, and (2) Practice Book §§ 39-19 and 39-20. We affirm the judgment of the trial court.
On February 27, 1999, the defendant, in his capacity as a custodian for the city of East Hartford, submitted falsified time cards indicating that he had worked simultaneously at two different locations. It subsequently was discovered that, as a result of those falsified time cards, the city overpaid the defendant by approximately $125. On May 18, 2000, the defendant was arrested and arraigned on the charge of larceny in the second degree.
On January 3, 2001, the defendant entered a plea of nolo contendere to the charge. The court thereupon imposed the agreed on sentence of one year, execution suspended, and one year conditional discharge. Thereafter, the court conducted a plea canvass in which it questioned the defendant as to the voluntariness of his [643]*643plea and apprised him of his constitutional rights, which he acknowledged he was waiving.2 At no point during the plea canvass or contemporaneous proceedings did the defendant claim that his plea was not voluntary or that the canvass was in any way deficient.
[644]*644On September 19,2001, more than eight months after sentencing, the defendant filed a motion to withdraw his plea, claiming that the plea canvass failed to comport strictly with Practice Book § § 39-19 and 39-20, and failed to satisfy constitutional due process standards. On October 1,2002, the court held a hearing on the motion.3 After initially advancing several ill-defined arguments as to why the canvass was deficient, the defendant eventually distilled his argument to the claim that the court failed to apprise him of the essential elements of the crime to which he had pleaded, to wit, the element of fraud.4 At the conclusion of oral argument, the court denied the motion, reasoning that even if the canvass itself did not expressly enumerate all of the elements of the crime charged, the record nevertheless revealed that the defendant likely was made aware of those elements by his attorney at a pretrial hearing. This appeal followed.
The defendant’s sole claim on appeal is that the court improperly denied his motion to withdraw his plea.5 We decline to review the defendant’s claim.
We underscore, at the outset, that the defendant’s motion to withdraw was filed more than nine months [645]*645after sentencing. Practice Book § 39-26 provides in relevant part: “A defendant may not withdraw his or her plea after the conclusion of the proceeding at which the sentence was imposed.” We have accordingly recognized that because of the interest in the finality of sentencing that this provision exemplifies, the failure of a defendant to file a motion to withdraw his plea before the conclusion of sentencing proceedings ordinarily precludes review of any claimed infirmities in the acceptance of the plea. See State v. Webb, 62 Conn. App. 805, 810, 772 A.2d 690 (2001).6
Notwithstanding that limitation, our courts have recognized two exceptions under which an appellate court can review claimed infirmities in a plea that are raised in an untimely motion to withdraw. See id., 811. First, we have afforded review in cases when there is specific legislative authorization to withdraw a plea after the imposition of the sentence. See General Statutes § 54-lj (requiring that court inform defendant of deportation consequences of guilty plea and permitting withdrawal of plea if court fails to do so); see also State v. Webb, supra, 62 Conn. App. 811; State v. Soares, 57 Conn. App. 149, 748 A.2d 331 (2000). Second, we have afforded review when the defendant has asserted a constitutional claim that satisfies the requirements of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). See, e.g., State v. Williams, 60 Conn. App. 575, 578-79, 760 A.2d 948 (concluding that despite defendant’s failure to preserve claim by filing timely motion to withdraw, claim nevertheless reviewable because it asserts violation of fundamental constitutional right), cert. denied, 255 Conn. 922, 763 A.2d 1043 (2000); State v. Childree, 189 Conn. 114, 119, 454 A.2d 1274 (1983) (same).
[646]*646The defendant has not asserted, nor in our scrutiny have we discovered, any legislative authorization permitting withdrawal of his plea that would bring his claim within the ambit of the first exception. His unpreserved claim can be reviewed, therefore, only if the requirements for Golding review are satisfied. The defendant, however, has not sought review of his unpreserved claim under Golding, and in accordance with our policy of engaging in such review only if it is requested, we decline to review his claim. See State v. Hermann, 38 Conn. App. 56, 65, 658 A.2d 148, cert. denied, 235 Conn. 903, 665 A.2d 904 (1995).
The judgment is affirmed.
In this opinion the other judges concurred.
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Cite This Page — Counsel Stack
841 A.2d 243, 81 Conn. App. 641, 2004 Conn. App. LEXIS 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-daley-connappct-2004.