State v. Gasser

812 A.2d 188, 74 Conn. App. 527, 2003 Conn. App. LEXIS 12
CourtConnecticut Appellate Court
DecidedJanuary 14, 2003
DocketAC 22492
StatusPublished
Cited by8 cases

This text of 812 A.2d 188 (State v. Gasser) 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. Gasser, 812 A.2d 188, 74 Conn. App. 527, 2003 Conn. App. LEXIS 12 (Colo. Ct. App. 2003).

Opinion

Opinion

LAVERY, C. J.

The defendant, Thomas W. Gasser, appeals from the judgment of conviction rendered by the trial court subsequent to his plea of guilty to the charge of manslaughter in the second degree with a motor vehicle in violation of General Statutes § 53a-56b.1 On appeal, the defendant claims that the court improperly denied his motion to withdraw his guilty plea because he was denied the effective assistance of counsel during the plea process. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of the defendant’s appeal. The defendant was charged with manslaughter in the second [529]*529degree with a motor vehicle and failure to drive on the right in violation of General Statutes § 14-230 (a).2 3On December 10, 1999, the defendant withdrew his not guilty plea and pleaded guilty to the charge of manslaughter in the second degree with a motor vehicle.3 At that time, the defendant was represented by attorney David Lenefsky, a member of the New York bar who had been admitted pro hac vice4 for the purpose of representing the defendant in the criminal matter. The plea bargain that the state disclosed to the court contemplated a sentence of ten years, execution suspended after seven years, a period of probation, and the right for the defendant to argue for a lesser sentence on behalf of the defense.

Prior to accepting the defendant’s plea, the court engaged in a lengthy canvass of the defendant pursuant to Practice Book §§ 39-19 through 39-21. The court read a recital of the facts of the case, and the defendant conceded that he generally knew what the evidence would have been had there been a trial.5 *The defendant [530]*530acknowledged that at the time of his canvass, he was not under the influence of any alcohol, drugs or medication. Additionally, the court reviewed the elements of manslaughter in the second degree with a motor vehicle, as well as the rights that the defendant waived by pleading guilty. The court informed the defendant that he would not be able to withdraw his plea without permission. The defendant acknowledged that he was pleading guilty of his own volition and that no one had forced him to do so. The court accepted the plea after concluding that it was entered into knowingly and voluntarily, and was made with the assistance of competent counsel.

On March 3, 2000, prior to the sentencing hearing, attorney John R. Williams, a member of the Connecticut bar, filed an appearance on behalf of the defendant. On the same day, the defendant filed a motion to withdraw the plea and claimed that he had been denied the effective assistance of counsel.

After conducting an evidentiary hearing, the court denied the defendant’s motion. Specifically, the court found that Lenefsky’s representation did not fall below an objective standard of reasonableness and that the defendant voluntarily had pleaded guilty. The court thereafter rendered judgment of guilty and sentenced the defendant to a period of incarceration of ten years, suspended after five years, with five years of probation with special conditions. This appeal followed. Additional facts will be set forth as necessary.

On appeal, the defendant renews his claims that the court improperly denied his motion to withdraw his [531]*531guilty plea, which motion he made pursuant to Practice Book § 39-27 and in which he asserted that he had been denied the effective assistance of counsel.6 The defendant claims that Lenefsky’s representation fell below the range of competence of a lawyer with ordinary training in the field of criminal law. Specifically, the defendant argues that Lenefsky (1) failed to conduct an adequate investigation of the facts of the case, (2) failed to obtain a full accident reconstruction by an independent expert, (3) failed to communicate to him the availability of an expert who would testily that the accident was not caused by the defendant and (4) excessively pressured him into pleading guilty. We disagree.

At the outset, we must identify the applicable standard of review and set forth the legal framework that guides our resolution of the defendant’s appeal. “[0]nce entered, a guilty plea cannot be withdrawn except by leave of the court, within its sound discretion, and a denial thereof is reversible only if it appears that there has been an abuse of discretion. . . . The burden is always on the defendant to show a plausible reason for the withdrawal of a plea of guilty.” (Citation omitted; internal quotation marks omitted.) State v. Andrews, 253 Conn. 497, 505-506, 752 A.2d 49 (2000). “We further note the pertinent case law applicable to ineffective assistance of counsel claims brought under Practice Book § 39-27 (4). Our case law holds that [a] claim of ineffective assistance of counsel is generally made pursuant to a petition for a writ of habeas coipus rather than in a direct appeal. . . . Section 39-27 of the Practice Book, however, provides an exception to that general rule when ineffective assistance of counsel results [532]*532in a guilty plea. A defendant must satisfy two requirements ... to prevail on a claim that his guilty plea resulted from ineffective assistance of counsel. . . . First, he must prove that the assistance was not within the range of competence displayed by lawyers with ordinary training and skill in criminal law .... Second, there must exist such an interrelationship between the ineffective assistance of counsel and the guilty plea that it can be said that the plea was not voluntary and intelligent because of the ineffective assistance.” (Internal quotation marks omitted.) State v. Nelson, 67 Conn. App. 168, 177, 786 A.2d 1171 (2001); State v. Gray, 63 Conn. App. 151, 161-62, 772 A.2d 747, cert. denied, 256 Conn. 934, 776 A.2d 1151 (2001).

“In choosing to plead guilty, the defendant is waiving several constitutional rights, including his privilege against self-incrimination, his right to trial by jury, and his right to confront his accusers. . . . These considerations demand the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and its consequences. . . . We therefore require the record affirmatively to disclose that the defendant’s choice was made intelligently and voluntarily.” (Citations omitted; internal quotation marks omitted.) State v. Andrews, supra, 253 Conn. 503. With those principles in mind, we now address the defendant’s arguments.

A

The defendant first argues that Lenefsky failed to conduct an adequate investigation into the facts of the case. The defendant claims an adequate investigation by Lenefsky was of particular importance in this case because the defendant had no recollection of the accident. We have previously noted the United States Supreme Court’s cautionary advice in Strickland v. [533]*533Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.

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Cite This Page — Counsel Stack

Bluebook (online)
812 A.2d 188, 74 Conn. App. 527, 2003 Conn. App. LEXIS 12, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gasser-connappct-2003.