Opinion
No. DBD CR02-0115814 S
August 24, 2010
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO VACATE
FACTS
The defendant, Jose O. Guerra, a citizen of Guatemala, pleaded guilty on March 17, 2003, to the charge of Assault in the First Degree; see General Statutes § 53a-59(a)(4); a class B felony. On March 27, 2003, he received a sentence of five years, suspended, and five years probation. The assault charge arose out of a physical altercation occurring on August 24 2002, outside of a bar in Danbury, Connecticut.
The defendant asserts that, when he agreed to plead guilty, he was unaware that his plea might have adverse immigration consequences because his attorney, Bernabe Diaz, who represented him at the time he pled guilty and, subsequently, his attorney, Joseph Dimyan, who stood in at the time of sentencing, did not explain the possibility to him beforehand. He further claims that his application for political asylum was denied on September 22, 2009, on the ground that his plea rendered him statutorily ineligible, and that he is now subject to removal, i.e., deportation, proceedings underway in New York.
1. The Court's Jurisdiction to Consider the Motion to Vacate
Motions to vacate guilty pleas are allowed pursuant to Practice Book § 39-26, which provides: "A defendant may withdraw his or her plea of guilty or nolo contendere as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his or her plea upon proof of one of the grounds in [Practice Book §]39-27. A defendant may not withdraw his or her plea after the conclusion of the proceeding at which the sentence was imposed." (Emphasis added.) The last sentence of § 39-26 is crucial because the Superior Court lacks jurisdiction to consider a motion to vacate filed after sentencing. State v. Reid, 277 Conn. 764, 775-76, 894 A.2d 963 (2006).
Prior to 2009, Connecticut courts recognized two exceptions to the rule depriving the Superior Court of jurisdiction over a postsentencing motion to vacate: First, where the legislature explicitly permitted the court to review such a motion; see e.g., General Statutes § 54-1j(c); and, second, where the defendant claimed that the plea was made as a result of an error of constitutional magnitude and the requirements of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), were met. See State v. Webb, 62 Conn.App. 805, 811, 772 A.2d 690 (2001). In 2009, the Supreme Court, overruling prior inconsistent case law, held that the second previously recognized exception was based on a misreading of a prior Supreme Court case and was, consequently, not a valid exception. See State v. Das, 291 Conn. 356, 368, 968 A.2d 367 (2009) (overruling prior contrary cases such as State v. Schaeffer, 5 Conn.App. 378, 498 A.2d 134 (1985)). The first exception, however, remains valid. See State v. Hall, 120 Conn.App. 489, 493, 992 A.2d 343 (2010), cert. granted in part, 297 Conn. 910 (2010).
Section 54-1j(c) provides: "If the court fails to address the defendant personally and determine that the defendant fully understands the possible consequences of the defendant's plea, as required in subsection (a) of this section, and the defendant not later than three years after the acceptance of the plea shows that the defendant's plea and conviction may have one of the enumerated consequences, the court, on the defendant's motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty."
The defendant in the present case briefly discusses this statute in his brief but does not explicitly rely on it. In any event, it is undisputed that the defendant's plea of guilty was accepted on March 17, 2003, over three years before the defendant filed the present motion. Therefore, § 54-1j would not confer jurisdiction on the court to hear the motion to vacate even if the defendant were relying upon it. See State v. Gonzalez, Superior Court, judicial district of Hartford, Docket No. WW51165 (January 30, 2009, Gold, J.) ( 47 Conn. L. Rptr. 350).
The Supreme Court elaborated as follows: "A fundamental misunderstanding of [ State v. Childree, 189 Conn. 114, 454 A.2d 1274 (1983)] has created confusion in our law with respect to whether there is an exception to the rule depriving the trial court of jurisdiction to consider a motion to withdraw a plea once the sentence has been executed. In Childree, unlike in the present case, the defendant had timely appealed from the judgment of conviction, and, therefore, this court undoubtedly had jurisdiction over the appeal . . . Childree concerned only the availability of appellate review for a defendant's claim that his guilty plea had been constitutionally deficient when such a claim was raised for the first time on appeal . . . The issues of Subject matter jurisdiction and preservation of claims for appellate review are separate and independent considerations." (Citations omitted.) State v. Das, supra, 291 Conn. 365-66.
The case of Padilla v. Kentucky, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not contradict Das. In that case, Jose Padilla had pleaded guilty to a drug offense after his attorney erroneously told him that he could not be removed from the United States as a result of his plea because of the length of time that he had been a lawful permanent resident. See id., 1477-78. The Supreme Court of Kentucky rejected Padilla's claim of ineffective assistance of counsel on the ground that immigration consequences of criminal convictions are merely "collateral" and therefore he had no right to adequate advice about such consequences. Id., 1478. The issue before the United States Supreme Court was "whether, as a matter of federal law, [Padilla's] counsel had an obligation to advise him that the offense to which he was pleading guilty would result in his removal from this country." Id. The Court answered this question in the affirmative; see id.; holding that the sixth amendment to the United States Constitution requires that "counsel must inform [his or] her client whether [the client's] plea carries a risk of deportation." See id., 1486.
Nothing in the holding of Padilla confers jurisdiction upon a state trial court to entertain a motion to vacate a guilty plea postsentencing. The Court merely defined the scope of a substantive constitutional right — the right to effective assistance of counsel. The Court did not hold that the United States Constitution or federal law requires or permits a state trial court to redress the violation of this right through a postsentencing motion to vacate.
This court interprets Padilla as a progeny of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which establishes the test for review of a claim of ineffective assistance of counsel. A claim of ineffective assistance of counsel does not invoke the court's jurisdiction to vacate a plea or a conviction. However, it does provide grounds for a habeas corpus petition pursuant to Practice Book § 23-21, et seq.
Therefore, the court concludes that it lacks jurisdiction to vacate the defendant's plea either under Practice Book § 39-26 or General Statutes § 54-1j(c).
2. A Defendant's Automatic Right of Review under Golding
The defendant argues in the alternative that this court should vacate the defendant's plea because he prevails on a claim of constitutional error pursuant to the requirements of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).
In State v. Golding, supra, 213 Conn. 239-40, the Connecticut Supreme Court held that an appellate court could review a claim of error not preserved at the Superior Court level only if "(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." The defendant in that case, Monica Golding, had been convicted of, among other charges, general assistance fraud. Id., 234-35. The court, however, failed to instruct the jury that the amount of money wrongfully obtained was an essential element of the crime, a failure to which Golding's counsel did not object at the time. Id., 235-36.
The Appellate Court declined to review Golding's unpreserved claim that the court failed to instruct the jury properly. Id., 235. The Supreme Court, citing State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), noted that it had "for many years held that claims not raised in the trial court can and will be considered on appeal [in certain circumstances] . . . One of those circumstances may arise where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial." State v. Golding, supra, 238-39. The Supreme Court then, after reciting the four-part test quoted above, remanded the case to the trial court for a new trial on the general assistance fraud charge. See id., 241-42.
Golding is inapplicable to the present case because it concerns the authority of an appellate court to review a claim of error not preserved at the trial court level. Golding does not concern the jurisdiction of the Superior Court to hear an untimely motion to vacate and it does not otherwise give the Superior Court the authority to review constitutional errors. Based on the foregoing reasoning, the defendant's Golding claim to vacate plea and conviction is denied.
CONCLUSION
The court, having heard and reviewed the defendant's claims to his motion to vacate his conviction of March 27, 2003, concludes that the motion is denied.