State v. Lasher

460 A.2d 970, 190 Conn. 259, 1983 Conn. LEXIS 522
CourtSupreme Court of Connecticut
DecidedMay 31, 1983
Docket10844
StatusPublished
Cited by44 cases

This text of 460 A.2d 970 (State v. Lasher) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Lasher, 460 A.2d 970, 190 Conn. 259, 1983 Conn. LEXIS 522 (Colo. 1983).

Opinion

Parskey, J.

This appeal presents the sole issue of whether the trial court erred by refusing to allow the defendant to withdraw his guilty plea prior to sentencing where it was alleged that the defendant and his attorney were mistaken as to the true nature of the plea bargain to which the defendant had agreed.

On March 7,1980, the defendant, David Lasher, was arrested by a state police undercover unit of the Statewide Narcotics Task Force for conspiracy to sell marijuana in violation of General Statutes § 53a-48 and possession of a weapon in a motor vehicle in violation of General Statutes § 29-38.

On March 8, 1980, the defendant appeared in court and was advised of his rights before plea. More than a year later, on March 10, 1981, as a result of plea bargaining, the defendant agreed to plead guilty to the charge of conspiracy to sell marijuana. 1 During the plea *261 proceeding, the court inquired into the factual basis of the plea, and explained to the defendant that he was giving up his right against self-incrimination and his rights to confrontation and trial. The court further indicated the penalty for the offense charged and warned the defendant that the court was not bound by the state’s recommendation. Additionally, the court inquired into the voluntariness of the plea and whether the defendant was under the influence of drugs or *262 otherwise incompetent during the plea proceeding. The court found that there was a factual basis for the plea and that the plea was voluntary. Thereafter, the court entered a finding of guilty, ordered a presentence investigation and continued the case for sentencing.

The defendant’s attorney again appeared before the court on May 22, 1981. At that time he informed the court that a dispute had arisen between himself and the state’s attorney as to the terms of the presentence recommendation stated at the March 10, 1981 pro *263 ceeding. The court, therefore, granted counsel a one week extension to review the transcripts of the guilty plea.

The defendant was present for sentencing on May 29, 1981. On that date, prior to the imposition of sentence, the defendant’s counsel, alleging that the terms of the plea agreement as they appeared in the March 10, 1981 transcript were materially different from what he had explained to the defendant, moved to withdraw the guilty plea. 2 The defendant’s counsel at no time offered any testimony in support of his mo *264 tion to withdraw the plea. The court, after hearing argument and reviewing the March 10,1981 transcript, denied the defendant’s motion. The court also denied the defendant’s motion that he be committed to the “TASC” 3 drug dependency program and imposed a sentence of one and one-half to three years to serve. A nolle was entered on the weapons in a motor vehicle charge.

On appeal the defendant asserts that he should be allowed to withdraw his guilty plea on the basis of Practice Book § 721 (2). That section authorizes the withdrawal of a guilty plea upon proof that “[t]he plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed.” The defendant claims that the record at the time of the plea (as set out in footnote 1) indicates that both the defendant and his attorney believed that, as part of the bargain, the defendant would be committed to the commissioner of mental health pursuant to General Statutes § 19-485 (now General Statutes § 21a-285) to allow him to continue participating in the “TASC” drug dependency program, with the sentence imposed suspended for the duration of the program, in return for his guilty plea. The defendant insists that this mistake of fact on the part of the defendant and his *265 attorney as to the terms of the plea agreement persisted despite the statement by the assistant state’s attorney of his intention to (1) recommend a sentence of not less than two and one-half years and not more than five years; (2) not to prosecute on a second count; and (3) not to oppose the defendant’s application for drug dependency treatment.

In essence, the defendant claims that this guilty plea was not voluntary and intelligent because both the defendant and his attorney were laboring under a subjective misunderstanding of the plea agreement. 4 It is to be underscored that the defendant does not allege a broken prosecutorial promise. See Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971).

In order for a plea of guilty to be constitutionally valid, the record must affirmatively disclose that the defendant entered the plea voluntarily and intelligently. Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); State v. Godek, 182 Conn. 353, 356, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981).

“Before a guilty plea is accepted a defendant may withdraw it as a matter of right. Practice Book, 1978, § 720. After a guilty plea is accepted but before the imposition of sentence the court is obligated to permit withdrawal upon proof of one of the grounds in § 721. An evidentiary hearing is not required if the record of the plea proceeding and other information in the court file conclusively establishes that the motion is without merit. See Fontaine v. United States, 411 U.S. 213, 215, *266 93 S. Ct. 1461, 36 L. Ed. 2d 169 (1973).” (Footnote omitted.) State v. Torres, 182 Conn. 176, 185, 438 A.2d 46 (1980).

The burden is always on the defendant to show a plausible reason for the withdrawal of a plea of guilty. Blue v. Robinson, 173 Conn. 360, 374, 377 A.2d 1108 (1977); State v. Slater, 169 Conn. 38, 46, 362 A.2d 499 (1975). In considering whether to hold an evidentiary hearing on a motion to withdraw a guilty plea the court may disregard any allegations of fact, whether contained in the motion or made in an offer of proof, which are either conclusory, vague or oblique. State v. Torres, supra, 185. Such allegations are discountenanced. State v.

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Bluebook (online)
460 A.2d 970, 190 Conn. 259, 1983 Conn. LEXIS 522, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lasher-conn-1983.