State v. Gundel

746 A.2d 204, 56 Conn. App. 805, 2000 Conn. App. LEXIS 97
CourtConnecticut Appellate Court
DecidedMarch 7, 2000
DocketAC 18475
StatusPublished
Cited by17 cases

This text of 746 A.2d 204 (State v. Gundel) 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. Gundel, 746 A.2d 204, 56 Conn. App. 805, 2000 Conn. App. LEXIS 97 (Colo. Ct. App. 2000).

Opinion

Opinion

CRETELLA, J.

The defendant, John E. Gundel, appeals from the trial court’s denial of his motion to withdraw his pleas of nolo contendere. Pursuant to Practice Book § 39-27 (3),1 the defendant claims that the sentence ultimately imposed exceeded that which he reasonably believed had been previously accepted by the court as a result of a plea agreement with the state. The defendant further claims that the court improperly denied him an evidentiary hearing.2 We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. The defendant resided at 57 Park Street in Stratford. He was accused of sexual assault on several members of a neighbor’s family. On February 26,1998, pursuant to a plea bargain [807]*807reached with the state,* *3 the defendant entered pleas of nolo contendere4 to a substitute information charging him with two counts of unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a)5 and two counts of assault in the third degree in violation of General Statutes § 53a-61 (a) (l).6 The sentence imposed pursuant to the plea agreement, and as recommended by the state, was to be five years incarceration, execution suspended after ninety days, with three years probation. This appeal relates to one of the two conditions of probation imposed by the court.

At the start of the plea proceeding on February 26, 1998, the prosecutor recommended a sentence of five years incarceration, execution suspended after ninety days, with three years probation. The prosecutor also set forth the conditions of the defendant’s probation as follows: (1) “He is to have no initiated contact whatsoever with . . . any member of the [victims’] family residing at 35 Park Street in Stratford,” and (2) “once his probation commences and once he is sentenced, he is to leave his residence at 57 Park Street in Stratford, Connecticut.”

The defendant did not object to or seek correction of any of the terms or conditions of the plea bargain as recited by the prosecutor. The court inquired whether the defendant was to receive any psychological treatment or evaluation to which the state responded, [808]*808“No, Your Honor. One of the reasons for the pleas to these charges was to avoid those types of conditions.” Defense counsel then informed the court that the state’s description was “an accurate statement regarding the proposed disposition.”

After the court had concluded the standard line of questioning for a plea canvass,7 the following colloquy transpired:

[809]*809“The Court: Mr. Gundel, when you appear before me for sentencing, which will be on April 30th, your sentence will be five years in the state’s penitentiary, suspended after ninety days. You’ll be placed under the supervision of the office of adult probation for a period of three years. Special conditions of probation: (1) No initiated contact with any members of the [victims’] family. You heard the names before, but at the time of sentencing I’ll outline them each individually, (2) And that you leave your—and not live or be present at . . . [your] residence located at 57 Park Street, Stratford, Connecticut. That’s the plea negotiation; is that the way you understood it, sir?
“[Defense Counsel]: May I have just one second, Your Honor?
“The Court: Yes. [A sidebar conference took place between the court, defense counsel and the state.]
“[Defense Counsel]: Sorry, Your Honor. We are prepared to proceed.
“The Court: All right. . . . Mr. Gundel, I think that really covered all the questions that I had for you. Do you have any questions of me now?
“[The Defendant]: No, Your Honor. . . .
“The Court: And that’s the plea negotiation as you understood it; is that correct?
“[The Defendant]: Yes, sir.
“The Court: Then I’ll see you on April 30th for sentencing.” (Emphasis added.)

[810]*810Thereafter, by a motion filed March 19, 1998, the defendant moved to withdraw his pleas pursuant to Practice Book § 39-27 (3). At sentencing,8 defense counsel raised his concerns with the court regarding the second condition of probation and requested a continuance so that counsel could file a brief or memorandum of law in support of the motion to withdraw the defendant’s pleas.9

The state objected to any continuance because the present disposition, that of pleading to offenses that were not sex crimes to avoid sex offender treatment in exchange for jail time, was the suggestion of the defendant and because he had no constitutional or other basis for claiming that he did not understand the plea disposition. Defense counsel conceded that what the state claimed was not in dispute, but argued that the court’s interpretation of the provision “to leave,” as including never being present at the defendant’s residence, was different from what the defendant had agreed to and offered to present evidence in that regard. Defense counsel argued that the defendant always had understood that the condition of probation would include that he not reside at his former residence, but that the defendant was not aware that the condition also required that he not be present there. Defense counsel then suggested that the court might need to go “beyond the transcript” of the February 26, 1998 proceeding to take into account the discussion at the sidebar conference that took place immediately after the court stated the second condition of probation. The state suggested that if the defendant sought any modification of the condition of probation he could address [811]*811that particular issue in the future. The court agreed with the state and proceeded with the sentencing, noting that the victims’ family members were all present in court. After reviewing the transcript, which the court had ordered relating to the initial canvassing, the court determined that there was no reason for a continuance.

The court’s interpretation of the second condition of probation, that the defendant not live or be present at his residence on Park Street, is the crux of this appeal. According to the court, the defendant, after serving his three month sentence, was not only required, as a condition of probation, to move out of his residence at 57 Park Street but was prohibited from even visiting his wife and stepdaughter at that same address. The defendant claims that when he signed the plea agreement he believed he was able to visit the house either to see his wife and stepdaughter or to “fix a leak” if one happened to occur. The court, however, had explained that the condition of probation was that the defendant “leave . . . and not live or be present at 57 Park Street.” The court then asked the defendant if “that’s the plea negotiation as [he] . . . understood it,” to which the defendant responded, “Yes, sir. ” The defendant argues that he believed that the sidebar conference, which was held immediately after the explanation of the second condition but before he agreed to the terms, clarified that condition of probation in his favor.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Celaj
141 A.3d 870 (Connecticut Appellate Court, 2016)
Harrington v. United States
689 F.3d 124 (Second Circuit, 2012)
State v. Hanson
979 A.2d 576 (Connecticut Appellate Court, 2009)
State v. CARMELO T.
955 A.2d 687 (Connecticut Appellate Court, 2008)
State v. Gay
947 A.2d 428 (Connecticut Appellate Court, 2008)
State v. Stewart
822 A.2d 366 (Connecticut Appellate Court, 2003)
State v. White
819 A.2d 932 (Connecticut Appellate Court, 2003)
State v. Winer
796 A.2d 491 (Connecticut Appellate Court, 2002)
State v. Irala
792 A.2d 109 (Connecticut Appellate Court, 2002)
State v. Parker
786 A.2d 1252 (Connecticut Appellate Court, 2001)
State v. Webb
772 A.2d 690 (Connecticut Appellate Court, 2001)
State v. Nguyen
756 A.2d 833 (Supreme Court of Connecticut, 2000)
State v. Gundel
753 A.2d 941 (Supreme Court of Connecticut, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
746 A.2d 204, 56 Conn. App. 805, 2000 Conn. App. LEXIS 97, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gundel-connappct-2000.