State v. Evans

519 A.2d 73, 9 Conn. App. 349, 1986 Conn. App. LEXIS 1158
CourtConnecticut Appellate Court
DecidedDecember 23, 1986
Docket3628
StatusPublished
Cited by9 cases

This text of 519 A.2d 73 (State v. Evans) 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.

Bluebook
State v. Evans, 519 A.2d 73, 9 Conn. App. 349, 1986 Conn. App. LEXIS 1158 (Colo. Ct. App. 1986).

Opinion

Hull, J.

The defendant appeals from the judgment of conviction of larceny in the second degree in violation of General Statutes § 53a-123, stealing a firearm in violation of General Statutes § 53a-212, and burglary in the second degree in violation of General Statutes [350]*350§ 53a-102, all of which were entered upon his pleas of guilty in accordance with plea agreements. He raises the following claims on appeal: (1) that his guilty pleas with respect to the larceny and firearm charges were involuntary; and (2) that the court improperly assumed venue over certain charges.

A house was burglarized in Old Lyme in early March, 1979. A witness saw the defendant on the burglarized premises on the date of the burglary and reported this to the state police. Meanwhile, the Old Saybrook police obtained information that the defendant had sold weapons to two individuals. The weapons were identified as stolen from the burglarized Old Lyme residence. On the basis of this information, the state police obtained a warrant, stopped and searched the defendant’s automobile and found in his possession most of the remaining items of personal property reported missing after the burglary.

The defendant was charged in both the Middlesex and New London judicial districts, as the property was stolen in the New London judicial district and recovered in the Middlesex judicial district. In the Middle-sex district, he was charged on a substitute information with larceny in the second degree in violation of General Statutes § 53a-123, and stealing a firearm in violation of General Statutes § 53a-212. He pleaded guilty to those charges in the Middlesex court on July 25, 1979.

At the time of his guilty plea, the court questioned the defendant to determine, inter alia, whether he had fully discussed the matter with his attorney, whether he was satisfied with his attorney’s advice and assistance, and whether he knew the maximum penalties for the crimes with which he had been charged. The court was satisfied that there were no threats or promises made other than those promises contained in the plea [351]*351bargain agreement itself, and that the defendant was making his plea voluntarily and knowingly.

The special public defender who had been assigned to represent the defendant advised the court that the defendant faced a burglary charge and possible parole violation in New London. The court advised the defendant that it had no control over those proceedings. The defendant stated that he understood this limitation. The court thereafter accepted the defendant’s guilty plea. The plea bargain — that on each count there would be a sentence of two and one-half to five years to be served consecutively, for a total effective sentence of five to ten years — was put on record.

In the New London judicial district, the defendant was charged with burglary in the second degree in violation of General Statutes § 53a-102, and larceny in the first degree in violation of General Statutes § 53a-122. He pleaded guilty to the burglary charge under the doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), on August 2, 1979. The larceny charge was nolled and the New London case was transferred to the Middlesex court for a consolidated sentencing.

The New London plea canvass was found deficient in State v. Evans, 5 Conn. App. 113, 497 A.2d 73 (1985). In finding error, this court ordered that the judgment be set aside and the case remanded with direction to permit the defendant to withdraw his guilty plea and proceed in accordance with the law. The record is devoid of any reference to further proceedings on the burglary charge in the New London judicial district. We will consider the defendant’s claims, however, because he alleges that his guilty pleas in the Middle-sex judicial district were made involuntarily.

The defendant appeared in the Middlesex court on September 13,1979, for sentencing. In addition to the [352]*352five to ten year sentence that had been agreed upon on the Middlesex charges, he was sentenced to five to ten years for burglary in the second degree for the New London charge. That sentence was to run concurrently with the sentence for larceny and stealing a firearm, for a total effective sentence of five to ten years.

I

The defendant’s first claim is that his guilty pleas in the Middlesex court were induced by a promise of a bargained disposition contained in a letter dated July 23, 1979, from the special public defender to the defendant. He claimed that this letter concerned plea bargaining on the burglary charge in the New London judicial district, that the Middlesex court was not made aware of this plea bargain, and that the plea bargain was not fulfilled regarding his sentence on the burglary charge. He asserts that as a result of this, his Middlesex pleas were not made voluntarily.

As a preliminary matter, we note that the defendant did not make a motion to withdraw his guilty plea pursuant to Practice Book §§ 719 through 722. Nor did he otherwise preserve this claim at trial. The involuntary nature of the plea is raised for the first time on appeal under the “exceptional circumstances” rule of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

The defendant’s claim of error refers to and depends upon the contents of the letter from the special public defender and the defendant’s belief as to the meaning and effect of that letter. No claim referring to the letter was raised in the trial court, however. The letter is not referred to in the transcripts filed by the defendant, nor was it made an exhibit in the trial court. The defendant has attempted to make it part of the appellate record by including it in the appendix to his brief. After the defendant filed his appellate brief, the state [353]*353filed a motion to expunge the defendant’s appendix. This court denied that motion without prejudice.

It is “a necessary application of appellate procedure that claims made in briefs must be supported by the record. Furber v. Administrator, 164 Conn. 446, 451, 324 A.2d 254 (1973).” State v. McCarthy, 179 Conn. 1, 7, 425 A.2d 924 (1979). It is the appellant’s responsibility to secure an adequate record for appeal. State v. Fraenza, 9 Conn. App. 228, 233, 518 A.2d 649 (1986). That record must be made in the trial court. State v. Hawkins, 162 Conn. 514, 516, 294 A.2d 584, cert. denied, 409 U.S. 984, 93 S. Ct. 332, 34 L. Ed. 2d 249 (1972).

In St. John v. Commissioner of Transportation, 172 Conn. 234, 374 A.2d 190 (1977), the plaintiffs included in the appendix to their brief letters exchanged by counsel. As in the present case, the Supreme Court denied a motion to expunge the appendix.

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Cite This Page — Counsel Stack

Bluebook (online)
519 A.2d 73, 9 Conn. App. 349, 1986 Conn. App. LEXIS 1158, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-evans-connappct-1986.