State v. Warner , 165 Conn. App. 185 ( 2016 )

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STATE OF CONNECTICUT v. BLAKE WARNER
(AC 37624)
DiPentima, C. J., and Beach and Flynn, Js.
Argued January 14—officially released May 3, 2016
(Appeal from Superior Court, judicial district of
Fairfield, geographical area number two, E. Richards,
J.)
Norman A. Pattis, for the appellant (defendant).
Bruce R. Lockwood, senior assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Kevin J. Dunn, senior assistant state’s
attorney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Blake Warner,
appeals from the denial of his motion to withdraw his
guilty pleas, made pursuant to Practice Book § 39-27
(4),1 and his request for an evidentiary hearing. Specifi-
cally, the defendant claims that the court should have
conducted an evidentiary hearing to determine if his
counsel, Attorney Frank Riccio, Jr., provided ineffective
assistance by failing to conduct an independent investi-
gation as to whether a purported witness for the state
would testify against him. He also claims that the court
‘‘abused its discretion when presented with a prima
facie claim of ineffective assistance of counsel—by way
of a [State v. Fernando A., 294 Conn. 1, 7–8, 981 A.2d
427 (2009)] violation—by flatly denying the defendant
an opportunity to be heard on his claim and preventing
him from perfecting the record needed for him to pre-
sent his claim either on direct appeal or through a
petition for a writ of habeas corpus.’’2 We agree with the
parties that the defendant was entitled to an evidentiary
hearing regarding Riccio’s alleged ineffective assis-
tance. Accordingly, we reverse the judgments of convic-
tion, and remand the case for such a hearing. As to the
defendant’s Fernando A. claim, we conclude that the
court did not abuse its discretion by denying his request
for an evidentiary hearing regarding the validity of the
protective order as a result of the collateral bar rule as
stated by our Supreme Court in State v. Wright, 273
Conn. 418, 425–27, 870 A.2d 1039 (2005).
The following facts and procedural history inform
our resolution of this appeal. On October 16, 2014, the
defendant pleaded guilty under the Alford doctrine3 to
strangulation in the second degree in violation of Gen-
eral Statutes § 53a-64bb and violation of a protective
order in violation of General Statutes § 53a-223. In set-
ting forth the factual basis for the plea in the first case,
the state recounted that in the early morning of Decem-
ber 9, 2013, the defendant grabbed the victim4 by the
throat, impeding her ability to breathe. At the defen-
dant’s arraignment that same day, the court issued a
protective order. As to the factual basis for the violation
of protective order in the second case, the state noted
that on April 4, 2014, pursuant to a search and seizure
warrant, the police found weapons in the defendant’s
attic, in violation of the protective order’s prohibition
of the possession of weapons.5 After a canvass, the
court accepted the defendant’s pleas, finding that they
were knowingly and intelligently made with the assis-
tance of counsel. The case was continued to January
5, 2015, for sentencing. The recommended sentence
was five years incarceration, execution suspended after
two years, and three years probation.
Prior to sentencing, the defendant filed a motion to
withdraw his guilty pleas and a motion to vacate the
protective order. At the sentencing hearing, new coun-
sel, Attorney Norman A. Pattis, appeared on behalf of
the defendant and requested a continuance to hold an
evidentiary hearing on the defendant’s motion to with-
draw his guilty pleas. Pattis set forth two grounds for
the motion to withdraw. First, immediately prior to his
pleas, the defendant had been informed by Riccio that
the state had a witness who would testify that the defen-
dant had made certain inculpatory statements to him.
The defendant then decided to enter guilty pleas. After
the court accepted the pleas, the defendant confronted
the purported witness, who denied that he was prepared
to testify against the defendant or that he had heard
the defendant inculpate himself. As a basis for with-
drawing his pleas, the defendant alleged that Riccio
rendered ineffective assistance of counsel by relaying
this information to the defendant without first conduct-
ing an independent investigation of this witness prior
to the defendant’s pleas.
Second, Pattis noted that the defendant’s pro se
motion to vacate also alleged ineffective assistance of
counsel as to the imposition of the protective order.
Specifically, Pattis claimed that the public defender
assigned to the defendant at his arraignment on Decem-
ber 9, 2013, neither requested a hearing pursuant to
State v. Fernando A., supra, 294 Conn. 25–26, nor asked
the defendant if he wanted one. Pattis further argued
that the defendant had made it clear that he desired a
hearing on the imposition of the protective order.
In response, the state requested that the court pro-
ceed with sentencing immediately. After Pattis
acknowledged that he was not challenging the adequacy
of the plea canvass, the court ruled: ‘‘I think that the
issues that had been raised should be raised in a habeas
corpus proceeding as opposed to an alternative pro-
ceeding. So I am going to deny the defense’s request
for a continuance.’’ After the defendant exercised his
right of allocution, the court sentenced him to the total
agreed upon sentence of five years, execution sus-
pended after two years to serve and three years of
probation. The court entered permanent protective
order prohibiting the defendant, inter alia, from
assaulting the victim or entering her dwelling. This
appeal followed.
In his appellate brief, the defendant claims that the
court abused its discretion on two separate instances.
‘‘First, the court deprived the defendant of an eviden-
tiary hearing . . . in violation of State v. [Fernando A.,
supra, 294 Conn. 1]. Second, the court refused to pro-
vide the defendant with an opportunity to establish a
record to support his claim of ineffective assistance of
counsel prior to the imposition of sentence . . . .’’ The
state agrees with the latter claim that the defendant
was entitled to an evidentiary hearing on his claim that
counsel was ineffective for failing to investigate the
purported state’s witness. As to the defendant’s other
ground for withdrawing his plea, namely, that counsel
was ineffective at his arraignment for failing to request
a hearing regarding the continued viability of the protec-
tive order pursuant to Fernando A., the state disagrees
that an evidentiary hearing was warranted. For the fol-
lowing reasons, we agree with the parties that the court
abused its discretion in denying the defendant an evi-
dentiary hearing as to the claim that Riccio had provided
ineffective assistance by failing to conduct an indepen-
dent investigation of the state’s purported witness.
Additionally, we agree with the state that the defen-
dant’s Fernando A. claim fails as a result of the collat-
eral bar rule.
Our standard of review for the trial court’s decision
on a motion to withdraw a guilty plea under Practice
Book § 39-27 is abuse of discretion. See State v.
Andrews, 253 Conn. 497, 505, 752 A.2d 49 (2000). Fur-
ther, while generally our case law holds that a claim
of ineffective assistance of counsel in a criminal matter
must be made through a writ of habeas corpus rather
than by direct appeal, our rules of practice provide an
exception. See Practice Book § 39-27 (4); see also State
v. Scales, 82 Conn. App. 126, 129, 842 A.2d 1158, cert.
denied, 269 Conn. 902, 851 A.2d 305 (2004).
In order to prevail on this claim, the defendant ‘‘must
satisfy two requirements . . . . First, he must prove
that the assistance was not within the range of compe-
tence displayed by lawyers with ordinary training and
skill in criminal law . . . . Second, there must exist
such an interrelationship between the ineffective assis-
tance 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).
We are guided in our analysis of the defendant’s claim
here by this court’s decision in State v. Salas, 92 Conn.
App. 541, 885 A.2d 1258 (2005). In Salas, the defendant
was charged with sexual assault in the second degree
and risk of injury to a child. Id., 542. The defendant
reached a plea agreement with the state, and the court
canvassed him regarding his plea of nolo contendere.
Id., 543. Following his plea, the defendant obtained new
counsel and sought to withdraw his plea. Id. Specifi-
cally, his counsel obtained a transcript of the plea can-
vass and filed motions to withdraw the plea and for an
evidentiary hearing. Id. The court denied the motions
filed on behalf of the defendant. Id.
On appeal, the defendant in Salas argued that the
court improperly denied his motion for an evidentiary
hearing. Id., 544. Specifically, he claimed that ‘‘because
he offered allegations of specific, demonstrative inci-
dents of his attorney’s ineffectiveness . . . the court
abused its discretion in denying his motion for an evi-
dentiary hearing.’’ (Internal quotation marks omitted.)
Id. At the outset of our analysis, we recited the follow-
ing: ‘‘After a guilty plea is accepted but before the impo-
sition of sentence the court is obligated to permit
withdrawal upon proof of one of the grounds in [Prac-
tice Book § 39-27]. 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. . . .
‘‘In considering whether to hold an evidentiary hear-
ing 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. For the purposes
of determining whether to hold an evidentiary hearing,
the court should ordinarily assume any specific allega-
tion of fact to be true. If such allegations furnish a basis
for withdrawal of the plea under [§ 39-27] and are not
conclusively refuted by the record of the plea proceed-
ings and other information contained in the court file,
then an evidentiary hearing is required.’’ (Emphasis
in original; internal quotation marks omitted.) Id. We
further noted that the burden was on the defendant to
show a plausible reason for the withdrawal. Id., 545.
After reviewing the transcript from the plea canvass
and the affidavits submitted on behalf of the defendant
in Salas, we concluded that the trial court erred by not
conducting an evidentiary hearing. Id., 550. ‘‘The record
of the plea proceeding does not conclusively refute
the allegations of fact in the defendant’s motion and
accompanying affidavits. . . . Therefore, an eviden-
tiary hearing was required.’’ (Citations omitted.) Id.,
550–51. Accordingly, we reversed the judgment and
remanded the case for an evidentiary hearing. Id., 551.
Similarly, in the present case, the defendant alleged
that because of Riccio’s failure to investigate the pur-
ported state’s witness, his subsequent plea was
unknowing and involuntary. There was nothing to con-
clusively refute this allegation of fact before the trial
court. We are in accord with both the state and the
defendant in concluding that the court should have
provided the defendant with an opportunity to develop
that claim fully. We conclude, therefore, that the judg-
ment must be reversed and the case remanded for an
evidentiary hearing.6 See id.
As for the second ground for withdrawing his plea,
the defendant asserts that the court should have permit-
ted an evidentiary hearing for his claim that his assigned
public defender was ineffective in not requesting a hear-
ing pursuant to State v. Fernando A., supra, 294 Conn.
7–8. We are not persuaded. The defendant was obligated
to obey the protective order, regardless of whether it
was issued improperly. His claim, predicated on his
constitutional right to the effective assistance of coun-
sel, amounts to a collateral attack on the protective
order. He is barred from challenging its propriety as a
result of the collateral bar rule.
In State v. Wright, supra, 273 Conn. 424–31, our
Supreme Court rejected the claim that the invalidity of
a protective order constitutes a cognizable defense to
violating that protective order under our law. In reach-
ing this conclusion, it relied on its analysis in Cologne
v. Westfarms Associates, 197 Conn. 141, 496 A.2d 476
(1985), that a party must obey a court order and a
contempt hearing ‘‘does not open to reconsideration
the legal or factual basis of the order alleged to have
been disobeyed . . . . ’’ (Internal quotation marks
omitted.) State v. Wright, supra, 425. It noted that this
doctrine, known as the collateral bar rule, applied both
in cases of civil contempt and when a defendant
attempted to attack the validity of a court order in a
criminal proceeding. Id., 426. Specifically, it stated: ‘‘Our
endorsement of that rule in Cologne leads us to con-
clude that the defendant . . . should not be allowed
to challenge the validity of the protective order that he
is charged with violating . . . .’’ Id.7
The court in Wright also rejected the defendant’s
contention that he was denied the constitutional right
to an attorney when he appeared at the protective order
hearing without counsel. Id., 432–33. Specifically, he
argued that ‘‘the presence of an attorney at that hearing
would have prevented the court from issuing the invalid
order in the first place.’’ Id., 433. Our Supreme Court
responded: ‘‘We nonetheless conclude that the defen-
dant’s right to counsel claim simply amounts to another
impermissible collateral attack on the protective order
that he was convicted of violating. . . . The fact that
his claim is couched in constitutional principles does
not render it exempt from the collateral bar rule. That
doctrine applies not only when a defendant challenges
an order on the basis of factual error but also when he
contends that the order is invalid because its issuance
does not comport with constitutional law.’’ (Citation
omitted.) Id.
In the present case, the defendant’s Fernando A.
claim is barred by the collateral bar rule as described
in State v. Wright, supra, 273 Conn. 425–27. After being
convicted of violating the protective order, he cannot
now challenge the validity of that order, even on consti-
tutional principles. We conclude, therefore, that the
court did not abuse its discretion in denying the motion
to withdraw the defendant’s guilty plea on the basis of
his Fernando A. claim.
The judgments are reversed and the case is remanded
for an evidentiary hearing to determine whether the
defendant should be allowed to withdraw his guilty
pleas on the basis of his claim that his counsel rendered
ineffective assistance by failing to investigate the state’s
purported witness, and for further proceedings
according to law.
In this opinion the other judges concurred.
1
Practice Book § 39-27 provides in relevant part: ‘‘The grounds for allowing
the defendant to withdraw his or her plea of guilty after acceptance are as
follows . . . (4) The plea resulted from the denial of effective assistance
of counsel. . . .’’
2
In State v. Fernando A., supra, 294 Conn. 25–26, our Supreme Court
held that ‘‘after a criminal protective order has been issued at arraignment,
a defendant is entitled, upon his request made at that time, to a more
extensive hearing to be held within a reasonable period of time about the
continued necessity of that order. At that second hearing, the state bears
the burden of proving, by a fair preponderance of the evidence, the continued
necessity of the criminal protective order in effect since the defendant’s
arraignment.’’ (Footnote omitted.)
3
‘‘Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed.
2d 162 (1970), a criminal defendant is not required to admit his guilt . . .
but consents to being punished as if he were guilty to avoid the risk of
proceeding to trial. . . . A guilty plea under the Alford doctrine is a judicial
oxymoron in that the defendant does not admit guilt but acknowledges that
the state’s evidence against him is so strong that he is prepared to accept
the entry of a guilty plea nevertheless.’’ (Internal quotation marks omitted.)
State v. Celaj, 163 Conn. App. 717, 718–19 n.3, A.3d (2016).
4
In accordance with our policy of protecting the privacy interests of the
victim of the crime of criminal violation of a protective order, we decline
to identify the victim or others through whom the victim’s identity may
be ascertained.
5
The protective order had stated that the defendant was to ‘‘surrender
or transfer all firearms and ammunition.’’
6
We note that our consideration of this issue is limited solely to whether
the defendant was entitled to a hearing. We make no determination of
whether Riccio provided ineffective assistance of counsel to the defendant.
7
The court noted that ‘‘[i]f the defendant believed that the order did not
comport with the statutory requirements of [General Statutes] § 46b-38c (e),
he had two lawful remedies available to him. He could have: (1) sought to
have the order modified or vacated by a judge of the Superior Court pursuant
to Practice Book § 38-13; or (2) appealed the terms of the order to the
Appellate Court in accordance with General Statutes § 54-63g.’’ (Footnote
omitted.) State v. Wright, supra, 273 Conn. 426.