State v. Gordon

796 A.2d 1238, 69 Conn. App. 691, 2002 Conn. App. LEXIS 237
CourtConnecticut Appellate Court
DecidedMay 14, 2002
DocketAC 21156
StatusPublished
Cited by6 cases

This text of 796 A.2d 1238 (State v. Gordon) 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. Gordon, 796 A.2d 1238, 69 Conn. App. 691, 2002 Conn. App. LEXIS 237 (Colo. Ct. App. 2002).

Opinion

Opinion

SCHALLER, J.

The defendant, Estrelita Gordon, appeals from the judgment of conviction of larceny in the second degree in violation of General Statutes § 53a-123 rendered after her guilty plea under the Alford1 doctrine. On appeal, the defendant claims that (1) her plea was not entered knowingly and voluntarily, in violation of her right to due process, and (2) the trial court’s failure to follow the mandates of Practice Book § 39-9 and the sentencing court’s failure to follow the mandates of Practice Book §§ 39-10 and 39-27 constituted plain error. We affirm the judgment of the trial court.

The following facts and procedural history are necessary for our resolution of this claim. The defendant was charged by information with larceny in the second degree in violation of General Statutes § 53a-123. At a hearing on September 23, 1997, the defendant pleaded guilty under the Alford doctrine to larceny in the second degree. As part of the plea process, the court canvassed the defendant pursuant to Practice Book §§ 39-19 through 39-21. The court recited the underlying facts and asked the defendant if she understood that the disposition was a three year cap, to which she responded, “Yes.” The court asked the defendant if she had taken any drugs, medication or alcohol that would affect her judgment. The defendant replied, “No.”

[693]*693The court also asked whether she had reviewed the file with her attorney and if counsel had explained the elements of the crime charged, as well as the maximum and minimum penalty for that crime, to which the defendant answered, “Yes.” The court continued and asked the defendant if she understood the constitutional rights that she was giving up by pleading guilty. The defendant responded, “Yes.” The court also inquired as to whether the defendant was pleading of her own free will and without being forced to do so, and the defendant answered, “Yes.” The court asked both counsel if they knew any reason why the plea should not be accepted, and both replied, “No.”

The court found that the plea was entered knowingly and voluntarily, and continued sentencing until December 23, 1997. Before continuing the case, the court stated to the defendant: “All right, you understand, Ms. Gordon, that this is a cap sentence, which means I’m going to give your lawyer a right to argue at time of sentencing. However, if you do not show up for sentencing, the failure to appear in this particular case will result in a failure to appear in the first degree charge against you, which will mean a five year felony you will be faced with on that charge. Additionally, the court will feel free to sentence you to the maximum term on the charge you have [pleaded] guilty to here .... Do you understand that, ma’am?” The defendant answered, “Yes.” The court further stated: “You understand that if you don’t show up, you will be subject to those penalties?” The defendant again responded, “Yes, I’ll be here.” In conclusion, the court asked, “Do you agree to that, ma’am?” The defendant answered, “I’ll be here.”

On December 23,1997, the defendant failed to appear for sentencing. She was arrested more than two years later and appeared for sentencing on May 24,2000. After the state explained the history of the case and the plea agreement to the court, the state recommended a five [694]*694year period of incarceration, and the court sentenced the defendant to five years imprisonment. The defendant did not move to withdraw her plea at any point during this proceeding. This appeal followed.

I

The defendant first claims that her plea was not entered knowingly and voluntarily in violation of her right to due process of law. While not clearly set out in her brief, the defendant asserts two arguments. First, the defendant argues that the plea was not knowing and voluntary because she did not know at the time that she entered the plea that she would be bound by it if she did not appear for sentencing. The defendant maintains that she was unaware of this because the trial court that accepted the plea failed to inform her of this consequence. Second, the defendant argues that the plea was not knowing and voluntary because the sentencing court rejected the plea agreement by imposing a sentence greater than that set forth in the plea agreement, but failed to inform her that she could withdraw her plea.

A

The defendant first claims that the plea was not knowing and voluntary because she did not know at the time that she entered the plea that she would be bound by it if she did not appear for sentencing. We are not persuaded.

At the outset, we note that the defendant failed to preserve this claim because she did not move to withdraw her plea at the sentencing hearing. We therefore review the defendant’s claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), because a defendant’s claim that a plea entered was not knowing and voluntary is appropriate for constitutional review under that doctrine. See State v. Silva, 65 Conn. App. [695]*695234, 240, 783 A.2d 7, cert. denied, 258 Conn. 929, 783 A.2d 1031 (2001).

“Under the Golding doctrine, a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. . . .

“In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances. . . . The first two prongs of Golding address the reviewability of the claim, and the last two involve the merits of the claim.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id.

We note that with respect to Golding review, we construe the question of whether the defendant knowingly and voluntarily entered her plea based on her understanding of the binding nature of that plea as similar to questions of voluntariness of the plea raised in the context of a defendant’s knowledge of the sentencing possibilities. See State v. Peterson, 51 Conn. App. 645, 725 A.2d 333 (appeal arising from trial court’s failure to advise defendant on minimum sentences for crimes to which he pleaded guilty), cert. denied, 248 Conn. 905, 731 A.2d 310 (1999). We draw this analogy because both circumstances implicate a defendant’s understanding of how much time the defendant may have to serve as a result of the plea. Therefore, to satisfy [696]*696the third prong of Golding

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Cite This Page — Counsel Stack

Bluebook (online)
796 A.2d 1238, 69 Conn. App. 691, 2002 Conn. App. LEXIS 237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gordon-connappct-2002.