State v. Gamble

604 A.2d 366, 27 Conn. App. 1, 1992 Conn. App. LEXIS 106
CourtConnecticut Appellate Court
DecidedMarch 10, 1992
Docket10132
StatusPublished
Cited by15 cases

This text of 604 A.2d 366 (State v. Gamble) 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. Gamble, 604 A.2d 366, 27 Conn. App. 1, 1992 Conn. App. LEXIS 106 (Colo. Ct. App. 1992).

Opinion

Foti, J.

The defendant appeals from the judgment of conviction rendered by the court, following a plea1 of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1). The defendant claims that the trial court improperly (1) denied his motion to correct the judgment and the mittimus, (2) characterized his straight guilty plea as one entered under Alford,2 (3) accepted the plea under Alford without a proper canvassing, (4) accepted the plea without properly explaining the necessary elements, and (5) accepted a plea not made knowingly, intelligently and voluntarily. We reverse in part the judgment of the trial court.

The facts are not in dispute. The defendant was charged and tried on the crime of murder in violation of General Statutes § 53a-54a. The court declared a mistrial because of a deadlocked jury. Prior to the commencement of a second trial, the state filed a substitute information charging the defendant with manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1). The defendant entered a plea and, following the canvass, the court accepted the plea. On January 25,1991, the court sentenced the defendant, in compliance with the plea agreement, to a term of twenty years incarceration. On April 5,1991, the defendant filed this appeal. Following a hearing on June 26, 1991, the court denied the defendant’s “Motion to Cor[3]*3rect Illegal Sentence Disposition.” On July 15, 1991, the defendant filed an amended appeal to include the denial of this motion.

The defendant argues that the trial court should have granted his motion to correct judgment and mittimus, filed pursuant to Practice Book § 935,3 because he pleaded guilty to first degree manslaughter under only the theory of accessorial liability.4 We agree.

The record reveals the following as relevant:

“Mr. Graham [Defense Counsel]: May the prior plea of not guilty and jury election be withdrawn?
“The Court: Okay.
“Mr. Maxwell [State’s Attorney]: I need the court’s permission to file a substitute information.
“The Court: Okay.
“Mr. Maxwell: Mr. Gamble had originally been charged with the crime of murder in violation of 53a-54a. And there has been a plea agreement here. The state’s consideration for that agreement is to take the charge and reduce the charge from a murder to a manslaughter in the first degree in violation of 53a-55 (a) (1).
“The Court: Okay.
“Mr. Graham: And to make it clear, I’ve discussed this with Mr. Maxwell. The plea the defendant is enter[4]*4ing to this manslaughter charge is as an accessory and Mr. Maxwell is going to present the factual basis on a—whatever he chooses. But what I’m going to submit to the court as a factual basis for what we’re entering the plea on is the testimony of Mr. Gamble in the prior trial where he admits to the conduct that he did in this case. And by some stretches of evidence it could be deemed to be an accessory to a manslaughter but not the actual principal actor.
“The Court: Okay.
“Mr. Graham: To save you the burden of reading those many pages, we discussed this in a chambers conference about a week and a half ago. And basically—
“The Court: Well, I recall the facts. He claims he came out with a gun; he shot the man in the buttocks; the other man took the gun and shot the man and killed him.
“Mr. Graham: That’s correct. And that’s his testimony. And the original discussions in this case were aimed at a plea to the assault, which he actually confesses to in that statement.
“The Court: Right. The whole issue comes down to [the fact] that he’s not admitting that he shot the fatal bullet, but he’s pleading to the manslaughter one or the accessory to the manslaughter one to avoid going to trial on the charge of murder and face the risk of being found guilty and getting sixty years in jail. And he acknowledges that there is a probability that he may have gotten convicted. Right?
“Mr. Graham: That’s right. Well, a certainty he could be convicted but for an assault first degree on the very facts that he concedes which carries the same penalty as the charge he’s pleading to.
[5]*5“The Clerk: Would the defendant please state his name and date of birth for the record?
“The Defendant: Derwin Gamble, November 24, 1966.
“The Clerk: Derwin Gamble, you’ve been charged with a substituted information in docket number 14-55491 which has been redesignated CR89-364468 with the crime of manslaughter in the first degree at the town of Hartford on or about April 23,1989, in violation of Connecticut General Statute Number 53a-55 (a) (1). How do you plead, guilty or not guilty?
“The Defendant: Not guilty for the manslaughter.
“Mr. Graham: It’s as an accessory, as I just mentioned to the court.
“The Court: Okay, you’re being put to plea as being an accessory to manslaughter in the first degree in violation of 53a-55 subsection one, and I believe, it’s 53a-8. Now what’s your plea to that charge?
“The Defendant: That’s accessory to—
“The Court: Accessory to manslaughter.
“The Defendant: Guilty, sir.”
The court then proceeded to canvass the plea of guilty and thereafter:
“The Court: And you’ve had enough time to talk to your lawyer about this case and your decision to plead guilty?
“The Defendant: Yes, I have.
“The Court: He’s explained to you the elements of the offense and the evidence the state would have presented at trial?
“The Defendant: Yes, Your Honor.
[6]*6“The Court: And you’ve plead to a Class B felony. You could get twenty years in jail and/or a $10,000 fine. And manslaughter in the first degree, you’re guilty of that when with intent to cause a serious physical injury to another person you cause the death of that person. Now wait a minute, I’m not through yet. But you’re charged as an accessory which means that you—
“Mr. Maxwell: If Your Honor please, the charge is— may I interrupt the court for a moment? I need the court’s permission to do that.
“The Court: Yes.
“Mr. Maxwell: Accessory is merely an alternative means of proving the crime of assault in the first degree. And he—
“The Court: I know that—manslaughter.
“Mr. Maxwell: Manslaughter, excuse me—manslaughter in the first degree. He wants to make his plea consistent with his evidence in the first trial, which I don’t object to. But the underlying basis for the plea is as principal. Now, it’s a combination of accessoriness or an Alford plea under North Carolina.

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Bluebook (online)
604 A.2d 366, 27 Conn. App. 1, 1992 Conn. App. LEXIS 106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gamble-connappct-1992.