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State v. Roberts
STATE OF CONNECTICUT v. DAVID D. ROBERTS
(AC 45801)
Alvord, Suarez and Westbrook, Js.
Syllabus
Convicted, on a plea of guilty, of the crimes of reckless endangerment in
the second degree, threatening in the second degree, and intimidation
based on bigotry or bias in the third degree, the defendant appealed to
this court. His conviction arose out of an incident in which he aimed a
shotgun at individuals renting his neighbor’s property, called them racial
slurs and told them to get out. The defendant was charged in a second
docket with, inter alia, intimidation based on bigotry or bias in the third
degree for his actions in calling his neighbor and leaving a voicemail
message that intimated future violence if the neighbor again rented the
residence to people of color. He elected to enter a plea of guilty to
reckless endangerment and threatening in the first docket and intimidation based on bigotry or bias in the second docket. At his plea hearing,
the trial court expressed doubt as to the sufficiency of the factual basis
for applying the charge of intimidation based on bigotry or bias in the
second docket. The state, with the agreement of defense counsel, added
the intimidation charge to the first docket, and the defendant was put
to plea only in the first docket. The court canvassed the defendant and
accepted his guilty plea. The court thereafter denied the defendant’s
motion to withdraw his plea and rendered a judgment of guilty. Held:
1. The trial court correctly concluded that the plea canvass was sufficient;
although the court did not restate each of the three constitutional rights
delineated in Boykin v. Alabama (395 U.S. 238), namely, the privilege
against self-incrimination, the right to a jury trial, and the right to confront one’s accusers, the defendant was cognizant of those rights prior
to entering his guilty plea because he affirmed during the plea canvass
that his attorney had fully explained the constitutional rights he was
waiving and, thus, his plea was knowingly, voluntarily, and intelligently made.
2. The defendant could not prevail on his claim that, prior to ruling on his
motion to withdraw his plea, the trial court improperly failed to hold
an evidentiary hearing sua sponte on his ineffective assistance of counsel
claim; the defendant failed to meet his burden of showing a plausible
reason for the withdrawal of his plea sufficient to justify an evidentiary
hearing, as the record of the plea proceeding demonstrated that the
defendant had previously been presented with a plea offer that he
accepted and that contained the same charges, and the defendant failed
to allege that his counsel did not advise him on the charges when he
was presented with the previous plea offer.
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State v. Roberts
3. The trial court properly determined that defense counsel did not render
ineffective assistance, as the defendant failed to prove the performance
prong of his claim; the defendant did not dispute that his counsel provided him with adequate information and advice in connection with the
previous plea offer, the record reflected that he understood the factual
basis underlying his guilty plea and how those facts supported the
charges against him, and the only change to the plea offer was the
docket in which the intimidation charge was filed, and the defendant
failed to present evidence that his counsel did not previously advise
him on possible constitutional concerns of a guilty plea to the intimidation charge.
Argued March 13—officially released August 6, 2024
Procedural History
Substitute information charging the defendant with
the crimes of reckless endangerment in the second
degree, threatening in the second degree, breach of
the peace in the second degree, intimidation based on
bigotry or bias in the third degree and harassment in
the second degree, brought to the Superior Court in
the judicial district of New Britain, geographical area
number fifteen, where the defendant was presented to
the court, Keegan, J., on a plea of guilty to reckless
endangerment in the second degree, threatening in the
first degree, and intimidation based on bigotry or bias
in the second degree; thereafter, the state entered a
nolle prosequi as to the remaining charges; subsequently, the court, Keegan, J., denied the defendant’s
motion to withdraw his plea and rendered judgment
of guilty in accordance with the plea, from which the
defendant appealed to this court. Affirmed.
Michael W. Brown, with whom were Vishal K. Garg
and, on the brief, Abigail H. Mason, for the appellant
(defendant).
Rocco A. Chiarenza, senior assistant state’s attorney,
with whom, on the brief, were Christian M. Watson,
state’s attorney, Alison Kubas, assistant state’s attorney, and Danielle Koch, deputy assistant state’s attorney, for the appellee (state).
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State v. Roberts
Opinion
WESTBROOK, J. The defendant, David D. Roberts,
appeals from the judgment of conviction rendered following the trial court’s denial of his motion to withdraw
his guilty plea. On appeal, the defendant claims that the
court improperly (1) concluded that it had conducted
an adequate plea canvass; (2) (a) failed to hold an evidentiary hearing on his ineffective assistance of counsel
claim, and (b) concluded that his guilty plea was not
the result of ineffective assistance of counsel;1 and (3)
concluded that General Statutes (Rev. to 2019) § 53a-
181l2 is not facially unconstitutional. We disagree and,
accordingly, affirm the judgment of the trial court.
The following facts, as set forth by the prosecutor
as the factual basis underlying the plea, and procedural
history are relevant to our resolution of this appeal. On
September 11, 2020, the defendant approached a group
of individuals renting his neighbor’s property. During
this interaction, he cocked and aimed a shotgun at them
while calling them racial slurs and telling them to ‘‘get
the F out of here.’’ The defendant then called the property owner and left a voicemail message in which, as
the prosecutor summarized the message, he stated ‘‘that
he was going to bring the N-words and Puerto Ricans
down, and that the owner of the residence was f-ed,
and that the war was on if he found out that there would
be more people of color renting at that residence.’’
The defendant was arrested and charged in two separate dockets. He was charged in the first docket for
1
For ease of discussion, we address these claims in a different order from
which they were briefed.
2
We note that the legislature has amended this statute since the events
underlying this appeal. See Public Acts 2021, No. 21-78, § 19. All references
herein are to the 2019 revision of the statute.
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State v. Roberts
the incident involving the renters (first docket) with
reckless endangerment in the second degree in violation
of General Statutes § 53a-64,3 threatening in the second
degree in violation of General Statutes § 53a-62,4 and
breach of the peace in the second degree in violation
of General Statutes § 53a-181.5 In the second docket,
which pertained to the message he left for the property
owner (second docket), the defendant was charged
with intimidation based on bigotry or bias in the third
degree in violation of § 53a-181l,6 and harassment in the
3
General Statutes § 53a-64 (a) provides: ‘‘A person is guilty of reckless
endangerment in the second degree when he recklessly engages in conduct
which creates a risk of physical injury to another person.’’
4
General Statutes § 53a-62 (a) provides in relevant part: ‘‘A person is
guilty of threatening in the second degree when: (1) By physical threat, such
person intentionally places or attempts to place another person in fear of
imminent serious physical injury, (2) (A) such person threatens to commit
any crime of violence with the intent to terrorize another person, or (B)
such person threatens to commit such crime of violence in reckless disregard
of the risk of causing such terror . . . .’’
5
General Statutes § 53a-181 (a) provides: ‘‘A person is guilty of breach of
the peace in the second degree when, with intent to cause inconvenience,
annoyance or alarm, or recklessly creating a risk thereof, such person: (1)
Engages in fighting or in violent, tumultuous or threatening behavior in a
public place; or (2) assaults or strikes another; or (3) threatens to commit
any crime against another person or such person’s property; or (4) publicly
exhibits, distributes, posts up or advertises any offensive, indecent or abusive
matter concerning any person; or (5) in a public place, uses abusive or
obscene language or makes an obscene gesture; or (6) creates a public and
hazardous or physically offensive condition by any act which such person
is not licensed or privileged to do. For purposes of this section, ‘public
place’ means any area that is used or held out for use by the public whether
owned or operated by public or private interests.’’
6
General Statutes (Rev. to 2019) § 53a-181l (a) provides: ‘‘A person is
guilty of intimidation based on bigotry or bias in the third degree when
such person, with specific intent to intimidate or harass another person or
group of persons because of the actual or perceived race, religion, ethnicity,
disability, sex, sexual orientation or gender identity or expression of such
other person or persons: (1) Damages, destroys or defaces any real or
personal property, or (2) threatens, by word or act, to do an act described
in subdivision (1) of this subsection or advocates or urges another person
to do an act described in subdivision (1) of this subsection, if there is
reasonable cause to believe that an act described in said subdivision will
occur.’’
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State v. Roberts
second degree in violation of General Statutes (Rev. to
2019) § 53a-183.7
On August 31, 2021, the state conveyed a plea offer
to the defendant in the first docket that required a guilty
plea to a charge of intimidation based on bigotry and
bias in the second degree. When the proposed disposition was presented to the court, the court stated that
it would only accept a disposition that included a guilty
plea to a least one charge in each docket. The state later
extended the defendant a second plea offer pursuant
to which he would enter a guilty plea to reckless endangerment in the second degree and threatening in the
first degree in violation of General Statutes § 53a-61aa8
in the first docket, and intimidation based on bigotry
or bias in the second docket. In return for his guilty
pleas, the state would agree to a sentence of six years
of incarceration, execution suspended after one year,
and three years of probation. The defendant would
retain the right to argue for a term of incarceration as
short as six months.
On January 14, 2022, the defendant appeared before
the court to plead guilty under the Alford doctrine9
7
General Statutes (Rev. to 2019) § 53a-183 (a) provides: ‘‘A person is guilty
of harassment in the second degree when: (1) By telephone, he addresses
another in or uses indecent or obscene language; or (2) with intent to harass,
annoy or alarm another person, he communicates with a person by telegraph
or mail, by electronically transmitting a facsimile through connection with
a telephone network, by computer network, as defined in section 53a-250,
or by any other form of written communication, in a manner likely to cause
annoyance or harm; or (3) with intent to harass, annoy or alarm another
person, he makes a telephone call, whether or not a conversation ensues,
in a manner likely to cause annoyance or alarm.’’
8
General Statutes § 53a-61aa (a) provides in relevant part: ‘‘A person is
guilty of threatening in the first degree when such person . . . (3) commits
threatening in the second degree as provided in section 53a-62, and in the
commission of such offense such person uses or is armed with and threatens
the use of or displays or represents by such person’s words or conduct that
such person possesses a pistol, revolver, shotgun, rifle, machine gun or
other firearm . . . .’’
9
See North Carolina v. Alford, 400 U.S. 25, 37,
91 S. Ct. 160,
27 L. Ed. 2d
162 (1970).
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State v. Roberts
in accordance with the second plea offer. During the
hearing, however, the court, Keegan, J., expressed
doubt about the sufficiency of the factual basis for
applying the charge of intimidation based on bigotry or
bias to the second docket. The state offered to instead
put the defendant to plea on the charge of intimidation
based on bigotry or bias in the first docket and defense
counsel agreed to this change. The defendant was therefore put to plea in only the first docket. The defendant
pleaded guilty under the Alford doctrine to reckless
endangerment in the second degree and threatening in
the first degree and entered a straight guilty plea to
intimidation based on bigotry or bias. The following
colloquy occurred, in relevant part, during the plea canvass:
‘‘The Court: Okay. So, what they’re going to do is,
they’re going to change that guilty plea on the intimidation in the third degree to the original file, everything
that happened with the renters. So, with that factual
understanding, what is your plea, guilty or not guilty?
‘‘The Defendant: Guilty.
‘‘The Court: All right, I’m going to ask you questions
now about the plea. Any questions you don’t understand, or you need to speak to your attorney, please
let me know. . . .
‘‘All right, sir. Have you had enough time to speak
with your lawyer about your case and your decision to
plead guilty to the intimidation charge, and guilty under
the Alford doctrine to the charges of reckless endangerment and threatening in the first degree?
‘‘The Defendant: Guilty.
‘‘The Court: Do you understand?
‘‘The Defendant: Yes.
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State v. Roberts
‘‘The Court: My question is do you understand? Have
you had enough time?
‘‘The Defendant: Yes.
‘‘The Court: All right. And did you review with your
attorney all the facts that led to your arrest on all three
of those charges?
‘‘The Defendant: Yes.
‘‘The Court: And you understand the day we’re talking
about, that these charges led to, right?
‘‘The Defendant: Yes.
‘‘The Court: All right. Now, did your attorney go
through with you the elements of each crime? What the
state has to prove in order for someone to be found
guilty of that crime?
‘‘The Defendant: Yes.
‘‘The Court: And do you understand how the facts
recited by the prosecutor support, they meet the legal
burden for each of those crimes?
‘‘The Defendant: Yes.
‘‘The Court: With respect to the intimidation, you do
admit your guilt upon that charge, correct?
‘‘The Defendant: Yes.
‘‘The Court: And with respect to the other two
charges, you don’t agree with all the factual bas[es],
but you do not want to take this to trial. You do understand that the state has sufficient evidence to prosecute
you and therefore you want to enter into a plea agreement, is that fair to say?
‘‘The Defendant: Yes.
‘‘The Court: Is that the reason you’re entering your
plea under the Alford doctrine?
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State v. Roberts
‘‘The Defendant: Yes.
‘‘The Court: Thank you. Did your attorney explain to
you all the constitutional rights that you give up today,
because of your plea?
‘‘The Defendant: Yes.
‘‘The Court: All right, and did anyone force you in
any way to cause you to enter your pleas today?
‘‘The Defendant: No.
‘‘The Court: Are you doing so voluntarily?
‘‘The Defendant: Yes.
‘‘The Court: And did you take anything today that
interferes with your ability to understand what you’re
doing in court?
‘‘The Defendant: No.
‘‘The Court: Are you satisfied with your lawyer’s representation of you?
‘‘The Defendant: Yes.
…
‘‘The Court: All right. All right, once I accept your
pleas, sir, you will not be able to take them back unless
you have a valid, legal reason to do so. So, you need
to be sure today that this is how you want to resolve
. . . your case. Are you sure about that?
‘‘The Defendant: Yes.
‘‘The Court: All right . . . . Either attorney know of
any reason the court should not accept the pleas?
‘‘[The Prosecutor]: No, Your Honor.
‘‘[Defense Counsel]: No, Your Honor. Thank you.
‘‘The Court: The court will accept the pleas, find them
knowingly and voluntarily made with the assistance of
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State v. Roberts
competent counsel. There is a factual basis, plea is
accepted. Findings of guilty may enter.’’ The court thereafter continued the matter to April 13, 2022, for sentencing.
After the entry of the guilty plea, but before the scheduled sentencing hearing, the defendant, through substitute counsel, filed a motion to withdraw his guilty plea.10
In his motion, he claimed that his plea was invalidly
entered because (1) the court did not specifically identify the constitutional rights that the defendant waived
by entering his guilty plea and, thus, conducted an inadequate plea canvass, (2) defense counsel failed to properly consult with or advise him prior to accepting a
change in the plea agreement, and (3) his guilty plea
to the intimidation charge was a result of ineffective
assistance of counsel. The defendant requested an evidentiary hearing only as to the ineffective assistance
of counsel claim.
On September 9, 2022, the court held a hearing on
the defendant’s motion to withdraw his plea. During
the hearing, the defendant, through substitute counsel,
argued that his plea canvass was insufficient to establish that his plea was made knowingly, voluntarily, and
intelligently. He argued that the plea canvass regarding
the constitutional rights waived by the plea was too
general and that ‘‘there needs to be a canvass on the
specific bundle of rights that a defendant is waiving
. . . .’’ The defendant additionally argued that his guilty
plea to the intimidation charge was uncounseled
because his prior attorney agreed to change the defendant’s plea on the intimidation charge in the middle of
the hearing without first consulting with him. He argued
that, given the circumstances, it was ‘‘impossible that
10
The defendant initially filed the motion to withdraw his guilty plea on
April 11, 2022. On August 15, 2022, he filed a ‘‘renewed’’ motion to withdraw
his guilty plea in which he set forth additional arguments.
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State v. Roberts
there had been an actual discussion between [the defendant] and his attorney about what this new package
offer was, as it was happening live on the record in
front of the court.’’ He last argued that defense counsel
provided ineffective assistance of counsel because he
had failed to explain to the defendant how the new
factual basis supported the intimidation charge. He
argued that there was ‘‘no indication that [he] understood . . . the first amendment issues that were raised
by the factual basis that [was] offered’’ and that his
attorney was therefore ineffective. In connection with
this claim, the defendant argued that § 53a-181l unconstitutionally punished speech. Although the defendant
had requested an evidentiary hearing in his motion, he
did not request, during the scheduled hearing, to present
evidence or request that the court hold an evidentiary
hearing.
The state countered that, although the court did not
list the three core constitutional rights delineated in
Boykin v. Alabama, 395 U.S. 238, 243,
89 S. Ct. 1709,
23 L. Ed. 2d 274 (1969), in its canvass of the defendant,
substantial compliance, rather than strict compliance,
is required under our Supreme Court’s holding in State
v. Badgett, 200 Conn. 412,
512 A.2d 160, cert. denied,
479 U.S. 940,
107 S. Ct. 423,
93 L. Ed. 2d 373 (1986). It
further argued that the record shows that the defendant’s plea was made knowingly, voluntarily, and intelligently because the court ‘‘repeatedly asked the defendant if he was [pleading guilty] voluntarily [and] asked
the defendant if his attorney had gone over all of his
constitutional rights that he was giving up by doing the
plea.’’ Additionally, the state argued that the record was
clear that defense counsel had previously discussed the
disposition of the case with the defendant because ‘‘that
disposition had actually been contemplated and was
going forward [in an earlier court proceeding]. That
counsel had already prepared the defendant for that
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State v. Roberts
plea deal, and but for the judge not accepting that offer
. . . and wanting it to be changed to the new disposition which involved [a plea] in all [the] files it would
have gone forward with the plea and the sentencing
that date.’’ The state last argued that the defendant’s
first amendment claim was not a proper ground on
which the defendant could base his motion to withdraw
his guilty plea.
At the end of the hearing, the court denied the defendant’s motion, concluding that the plea canvass substantially complied with the requirements of Practice
Book § 39-1911 and that there was no ineffective assistance of counsel. The court additionally concluded that
‘‘the factual basis presented at the time of the plea [was]
sufficient for [§ 53a-181l] and . . . does not violate our
. . . constitution.’’ The defendant was then sentenced
to a total effective sentence of six years of incarceration,
execution suspended after nine months, followed by
three years of probation.12 This appeal followed.
We begin by setting forth the following standard of
review and relevant legal principles. ‘‘Practice Book
11
Practice Book § 39-19 provides: ‘‘The judicial authority shall not accept
the plea without first addressing the defendant personally and determining
that he or she fully understands:
(1) The nature of the charge to which the plea is offered;
(2) The mandatory minimum sentence, if any;
(3) The fact that the statute for the particular offense does not permit
the sentence to be suspended;
(4) The maximum possible sentence on the charge, including, if there are
several charges, the maximum sentence possible from consecutive sentences
and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
(5) The fact that he or she has the right to plead not guilty or to persist
in that plea if it has already been made, and the fact that he or she has the
right to be tried by a jury or a judge and that at that trial the defendant has
the right to the assistance of counsel, the right to confront and cross-examine
witnesses against him or her, and the right not to be compelled to incriminate
himself or herself.’’
12
The state nolled the remaining charges in the second docket.
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State v. Roberts
§ 39-26 provides in relevant part: A defendant may withdraw his or her plea of guilty . . . 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.
‘‘[O]ur standard of review is abuse of discretion for
decisions on motions to withdraw guilty pleas brought
under Practice Book § 39-27. . . . [Section 39-27] specifies circumstances under which a defendant may withdraw a guilty plea after it has been entered.13 [O]nce
entered, a guilty plea cannot be withdrawn except by
leave of the court, within its sound discretion, and a
denial thereof is reversible only if it appears that there
has been an abuse of discretion. . . . The burden is
always on the defendant to show a plausible reason for
withdrawal of a plea of guilty. . . .
‘‘In determining whether the trial court [has] abused
its discretion, this court must make every reasonable
presumption in favor of [the correctness of] its action.
. . . Our review of a trial court’s exercise of the legal
13
Practice Book § 39-27 provides: ‘‘The grounds for allowing the defendant
to withdraw his or her plea of guilty after acceptance are as follows:
‘‘(1) The plea was accepted without substantial compliance with Section
39-19;
‘‘(2) The 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;
‘‘(3) The sentence exceeds that specified in a plea agreement which had
been previously accepted, or in a plea agreement on which the judicial
authority had deferred its decision to accept or reject the agreement at the
time the plea of guilty was entered;
‘‘(4) The plea resulted from the denial of effective assistance of counsel;
‘‘(5) There was no factual basis for the plea; or
‘‘(6) The plea either was not entered by a person authorized to act for
a corporate defendant or was not subsequently ratified by a corporate
defendant.’’
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State v. Roberts
discretion vested in it is limited to the questions of
whether the trial court correctly applied the law and
could reasonably have reached the conclusion that it
did.’’ (Footnote altered; internal quotation marks omitted.) State v. Lynch, 193 Conn. App. 637, 657–58,
220
A.3d 163 (2019), cert. denied,
335 Conn. 914,
229 A.3d
729 (2020).
I
The defendant first claims that the court improperly
concluded that it conducted an adequate plea canvass.
He argues that the plea canvass was inadequate because
the record of the canvass does not indicate that the
defendant expressly waived the following three constitutional rights enumerated in Boykin v. Alabama,
supra,395 U.S. 243: the privilege against self-incrimination, the right to a jury trial, and the right to confront
one’s accusers. He contends that, in the absence of
an express waiver of each right, the plea canvass is
insufficient to demonstrate that he understood that his
guilty plea waived these fundamental constitutional
rights, and that his guilty plea was therefore invalid
because it was not knowingly, voluntarily, and intelligently made. The state counters that the court properly
concluded that the canvass was adequate because ‘‘the
plea canvass expressly included the defendant’s affirmative answer to the question ‘[d]id your attorney
explain to you all the constitutional rights that you give
up today, because of your plea’ ’’ and the defendant
failed to offer any evidence that his counsel failed to
explain the constitutional rights that were waived. The
state argues that ‘‘the plea canvass here, as a whole,
satisfied the requirements of Boykin in demonstrating
a knowing and voluntary guilty plea’’ and substantially
complied with the requirements of Practice Book § 39-
19 (5). We conclude that the record, read as a whole,
demonstrates that the defendant’s plea was knowingly,
voluntarily, and intelligently made.
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State v. Roberts
‘‘Several federal constitutional rights [as enunciated
in Boykin v. Alabama, supra,395 U.S. 243] are involved
in a waiver that takes place when a plea of guilty is
entered in a state criminal trial. First, is the privilege
against compulsory self-incrimination . . . [s]econd, is
the right to trial by jury . . . [t]hird, is the right to
confront one’s accusers. . . .14 Further, under the Connecticut rules of practice, a trial judge must not accept
a plea of [guilty or] nolo contendere without first
addressing the defendant personally and determining
that the plea is voluntarily made under Practice Book
§ [39-20] and that the defendant fully understands the
items enumerated in Practice Book § [39-19].’’ (Footnote in original; internal quotation marks omitted.)
State v. Hurdle, 217 Conn. App. 453, 473,
288 A.3d 675,
cert. granted, 346 Conn. 923,
295 A.3d 420 (2023).
Our Supreme Court stated in State v. Badgett, supra,200 Conn. 420, that ‘‘[l]iteral compliance [with the precise language of Boykin] is not constitutionally
required.’’ (Emphasis in original.) In Badgett, the defendant claimed that the court had not properly informed
him that his guilty plea operated as a waiver of his right
to a trial by jury. The defendant argued that, during the
plea canvass, the court asked him only if he was ‘‘ ‘giving
up [his] right to trial at this present time,’ ’’ without
specifically referencing the right to a jury trial. Id., 419.
The court reasoned that, ‘‘[a]lthough Boykin requires
that relinquishment of the right to a trial by jury must
be evident and cannot be presumed from a ‘silent’
record . . . the trial court’s express mention of waiver
of the right to trial, combined with the defendant’s prior
election for a jury trial, his experience with criminal
14
‘‘The same rights are guaranteed under our state constitution in article
first, § 8, as amended by article seventeen of the amendments. See State v.
Suggs, 194 Conn. 223, 227 n.3,
478 A.2d 1008 (1984).’’ State v. Hurdle,
217
Conn. App. 453, 473 n.16,
288 A.3d 675, cert. granted,
346 Conn. 923,
295
A.3d 420 (2023).
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State v. Roberts
proceedings and apparently adequate representation by
counsel,’’ rendered the plea canvass constitutionally
sufficient. (Emphasis in original.) Id., 419–20.
The purpose of the plea canvass, as articulated by
the United States Supreme Court in Boykin, is to ‘‘make
certain [the accused] has a full understanding of what
the plea connotes and of its consequence so that there
is an adequate record for review. The plea of guilty by
the defendant must represent a voluntary and intelligent
choice among the alternative courses of action open to
the defendant. . . . A plea of guilty is in effect a conviction and the equivalent of a finding of guilty by a jury
and a court should not allow a defendant to enter such
a plea until the court is satisfied that it is freely made
and that the party making it understands its purport
and effect.’’ (Citation omitted.) State v. Bugbee, 161
Conn. 531, 534,
290 A.2d 332 (1971).
‘‘[The Supreme Court] indicated in Consiglio v. Warden, 160 Conn. 151, 164, 165,
276 A.2d 773 [1970], that
the rule in Boykin v. Alabama, [supra,395 U.S. 238],
does not render invalid a conviction based on a guilty
plea when there were facts in the record on the basis
of which a reasonable presumption could be made that
the plea was intelligent and voluntary. The record in
the Consiglio case . . . disclosed that the plaintiff was
questioned at length by the trial judge and it was ascertained that his plea was made after a discussion with
the public defender. The trial judge also ascertained
from [the plaintiff] the factual basis of the charge that
he was a third offender. These factors, in conjunction
with several others, led the court to conclude . . . that
the record in the case was not ‘a silent record.’ ’’ (Citations omitted.) State v. Bugbee, supra,161 Conn. 535.
Our Supreme Court concluded in State v. Bugbee,
supra, 161 Conn. 534–36, that Boykin was not satisfied
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when the court did not ask questions about the defendant’s waiver of his constitutional rights, but, rather,
just asked the defendant how he pleaded to the charges
without any further inquiry. Id. The court reasoned that,
because ‘‘[t]he record in the present case does not
reveal any facts from which a reasonable conclusion
could be drawn that the plea was intelligent and voluntary,’’ and because ‘‘[n]othing was ascertained from the
defendant regarding his plea and the court did not
inquire into the factual basis of the plea’’; id., 535; that,
therefore, ‘‘[t]he record in [that] case [could] be characterized as a ‘silent record’ and [did] not comply with
constitutional standards as determined in the Boykin
case.’’ Id., 535–36.
In the present case, the court specifically asked the
defendant if ‘‘[his] attorney explain[ed] to [him] all the
constitutional rights that [he] [gave] up today, because
of [his] plea?’’ The defendant responded, ‘‘Yes.’’
(Emphasis added.)
It is reasonable to conclude from the record as a
whole that, although the court did not restate each of
the three Boykin constitutional rights during the plea
canvass, the defendant was cognizant of these rights
prior to entering his guilty plea because he affirmed
during the plea canvass that his attorney had fully
explained the constitutional rights he was waiving. The
defendant does not argue that his attorney did not
explain the three constitutional rights enumerated in
Boykin to him but simply alleges that, because the three
rights were not explicitly outlined by the court during
the plea canvass, it is not apparent that his waiver
of these rights was made knowingly, voluntarily and
intelligently.
Boykin does not require any specific canvass, or talismanic words, but rather holds only that the court ‘‘cannot presume a waiver of [the] three important federal
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rights from a silent record.’’ (Emphasis added.) Boykin
v. Alabama, supra,395 U.S. 243. In the present case,
the record is not silent. Like the record in Consiglio v.
Warden, supra,160 Conn. 164, the record here reflects
that the judge questioned the defendant at length,
including questions in which the defendant affirmed
that he was voluntarily pleading guilty, and that he was
‘‘sure today that this is how [he] want[ed] to resolve
[his] case’’. It is therefore apparent from the record that
the defendant understood all the implications of his
guilty plea and, nevertheless, was certain that he wanted
to plead guilty. The court additionally asked the defendant’s counsel whether he knew of any reason that the
court should not accept the defendant’s guilty plea, and
his counsel affirmed that he did not. Taken as a whole,
therefore, the record of the plea canvass shows that the
defendant’s guilty plea was made knowingly, voluntarily
and intelligently.
Our Supreme Court consistently has concluded that
the lack of an on the record discussion between the
trial court and a defendant with respect to each of the
constitutional rights being waived does not itself render
a defendant’s decision to waive those rights unknowing,
involuntary, or unintelligent. See State v. Shockley, 188
Conn. 697, 710,
453 A.2d 441 (1982) (holding that there
is no constitutional requirement that trial judge advise
defendant of each right that defendant gives up by
pleading guilty by name and that ‘‘[t]he true substantive
question is whether the election was in fact intelligently
and voluntarily made and the record so demonstrates’’);
Blue v. Robinson, 173 Conn. 360, 373–76,
377 A.2d 1108
(1977) (affirming denial of petition for writ of habeas
corpus when canvass failed to address any of three
Boykin rights because record showed ‘‘that the court
accepted the plea after inquiry and an express finding
that it ‘was made voluntarily with full knowledge of the
charge and of the possible penalties and after the advice
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of counsel’ ’’); State v. Slater, 169 Conn. 38, 45–46,
362
A.2d 499 (1975) (affirming denial of motion to vacate
guilty plea when canvass failed to address privilege
against self-incrimination and right to confront one’s
accusers). We therefore conclude that, although the
court did not discuss on the record each of the three
constitutional rights delineated in Boykin, it is nevertheless clear from the record as a whole that the defendant’s plea was made knowingly, voluntarily and intelligently.15 Because the record reflects that the defendant
had a full understanding of what his guilty plea meant
and because he affirmed during the plea canvass that
his attorney explained to him the constitutional consequences of his guilty plea, the plea canvass sufficiently
establishes that the defendant’s plea was made knowingly, voluntarily, and intelligently. Accordingly, we
conclude that the court correctly concluded that the
plea canvass was sufficient.
II
The defendant next claims that the court erred in
not holding an evidentiary hearing with respect to his
ineffective assistance of counsel claim and that the
court improperly concluded that his guilty plea to the
intimidation charge was not the result of ineffective
assistance of counsel. He specifically contends that the
court improperly concluded that his counsel’s performance was reasonable despite counsel’s failure to
advise the defendant ‘‘on the nature of the charge and
how the facts to which he was pleading related to the
15
We emphasize that, although our case law is clear that the constitutional
rights delineated in Boykin are validly waived if the record shows that, even
where the court did not discuss each of the constitutional rights being
waived, the guilty plea was made knowingly, voluntarily and intelligently,
the best practice is for a court to individually question the defendant about
these rights during the plea canvass so the record is abundantly clear that
the defendant is aware of all the constitutional implications of his or her
guilty plea.
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legal charge’’ when the charges were changed during
the plea hearing. We are not persuaded.
‘‘Almost without exception, we have required that a
claim of ineffective assistance of counsel must be raised
by way of habeas corpus, rather than by direct appeal,
because of the need for a full evidentiary record for
such [a] claim. . . . Absent the evidentiary hearing
available in the collateral action, review in this court
of the ineffective assistance claim is at best difficult
and sometimes impossible. The evidentiary hearing provides the trial court with the evidence which is often
necessary to evaluate the competency of the defense
and the harmfulness of any incompetency. . . .
‘‘Practice Book § 39-27 (4) provides an explicit exception to this general rule, however, and allows a defendant to withdraw a guilty plea after its acceptance if
the plea resulted from the denial of effective assistance
of counsel. . . . We recognize, therefore, that the
defendant’s claim of ineffective assistance of counsel
is procedurally correct. Nevertheless, we are mindful
that on the rare occasions that we have addressed an
ineffective assistance of counsel claim on direct appeal
. . . we have limited our review to situations in which
the record of the trial court’s allegedly improper action
was adequate for review or the issue presented was
a question of law, not one of fact requiring further
evidentiary development. We point out, finally, that irrespective of whether a defendant proceeds by way of
habeas corpus or direct appeal, our review is the same,
and the burden remains on the defendant to produce
an adequate record so that an appellate court may ascertain whether counsel’s performance was ineffective.
. . .
‘‘A defendant must satisfy two requirements . . . to
prevail on a claim that his guilty plea resulted from
ineffective assistance of counsel. . . . First, he must
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prove that the assistance was not within the range of
competence displayed by lawyers with ordinary training
and skill in criminal law . . . . Second, there must
exist such an interrelationship between the ineffective
assistance of counsel and the guilty plea that it can be
said that the plea was not voluntary and intelligent
because of the ineffective assistance. . . . In
addressing this second prong, the United States
Supreme Court held in Hill v. Lockhart, 474 U.S. 52,
106 S. Ct. 366,
88 L. Ed. 2d 203 (1985), that to satisfy
the prejudice requirement, the defendant must show
that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial. . . . The resolution of
this inquiry will largely depend on the likely success of
any new defenses or trial tactics that would have been
available but for counsel’s ineffective assistance. . . .
In its analysis, a reviewing court may look to the performance prong or to the prejudice prong, and the petitioner’s failure to prove either is fatal to a [claim of ineffective assistance of counsel].’’ (Citations omitted;
emphasis omitted; internal quotation marks omitted.)
State v. Lynch, supra, 193 Conn. App. 658–59.
A
The defendant first argues that the court improperly
failed to hold an evidentiary hearing on his ineffective
assistance of counsel claim prior to denying his motion
to withdraw his guilty plea. He argues that he had sufficiently questioned defense counsel’s performance to
warrant an evidentiary hearing and that the court
improperly denied his request to hold an evidentiary
hearing on this claim. The state counters that the court
never precluded the defendant from presenting evidence in support of his claim, and that, even if it had, the
court properly declined to hold an evidentiary hearing
because the record conclusively establishes that the
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State v. Roberts
defendant’s motion is without merit. We agree with
the state.
‘‘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 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.
For the purpose of determining whether to hold an
evidentiary hearing, the court should ordinarily assume
any specific allegations of fact to be true. If such allegations furnish a basis for withdrawal of the plea under
[Practice Book § 39-27] . . . and are not conclusively
refuted by the record of the plea proceedings and other
information contained in the court file, then an evidentiary hearing is required. . . .
‘‘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. . . . The burden is always on the defendant to show a plausible reason for the withdrawal
of a plea of guilty. . . . To warrant consideration, the
defendant must allege and provide facts which justify
permitting him to withdraw his plea under [Practice
Book § 39-27].’’ (Citations omitted; emphasis omitted;
internal quotation marks omitted.) State v. Salas, 92
Conn. App. 541, 544,
885 A.2d 1258 (2005).
‘‘We further observe that there is no language in Practice Book §§ 39-26 and 39-27 imposing an affirmative
duty upon the court to conduct an inquiry into the basis
of a defendant’s motion to withdraw his guilty plea.
. . . [T]he administrative need for judicial expedition
and certainty is such that trial courts cannot be
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expected to inquire into the factual basis of a defendant’s motion to withdraw his guilty plea when the
defendant has presented no specific facts in support of
the motion. To impose such an obligation would do
violence to the reasonable administrative needs of a
busy trial court, as this would, in all likelihood, provide
defendants strong incentive to make vague assertions
of an invalid plea in hopes of delaying their sentencing. . . .
‘‘When the trial court does grant a hearing on a defendant’s motion to withdraw a guilty plea, the requirements and formalities of the hearing are limited. . . .
Indeed, a hearing may be as simple as offering the
defendant the opportunity to present his argument on
his motion for withdrawal. . . . As one court observed,
an evidentiary hearing is rare, and, outside of an evidentiary hearing, often a limited interrogation by the [c]ourt
will suffice [and] [t]he defendant should be afforded
[a] reasonable opportunity to present his contentions.’’
(Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Simpson, 329 Conn. 820,
837,
189 A.3d 1215 (2018).
For purposes of our analysis here, we first construe
the defendant’s claim as challenging the court’s failure
to sua sponte hold an evidentiary hearing. Although the
defendant’s motion stated that an evidentiary hearing
was requested, the defendant did not renew this request
during the hearing that followed. In arguing that defense
counsel was ineffective because there was no indication
that the defendant understood the possible first amendment implications of the guilty plea as charged, defense
counsel mentioned in passing that ‘‘maybe an evidentiary hearing would elaborate on this.’’ He did not thereafter request to present evidence.
The defendant did not address his ineffective assistance of counsel claim further after the state pointed
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to the fact that the disposition had been previously
contemplated and the parties had been prepared to
go forward with it in an earlier court proceeding. The
defendant had an opportunity to respond to the state
and argue why an evidentiary hearing was required to
clarify whether defense counsel had in fact advised him
of the effect of this disposition and to present evidence
in support of his assertion that defense counsel nevertheless had failed to advise him of this disposition.
The defendant, however, failed to do so. See State v.
Hanson, 117 Conn. App. 436, 454,
979 A.2d 576 (2009)
(noting that court had no responsibility to require presentation of evidence), cert. denied, 295 Conn. 907,
989
A.2d 604, cert. denied,
562 U.S. 986,
131 S. Ct. 425,
178
L. Ed. 2d 331 (2010).
We continue the analysis by assuming without deciding that the court was apprised of the fact that that the
defendant continued to seek an evidentiary hearing and
implicitly denied such hearing in denying the defendant’s motion. Even under that assumption, we conclude that the defendant had not met his burden of
setting forth sufficient facts to warrant an evidentiary
hearing. In support of his motion, the defendant argued
to the trial court that, although he answered affirmatively when asked during the plea canvass whether he
was advised of the essential elements of the crimes
charged, the record clearly demonstrates that counsel
failed to properly advise him. He now argues before
this court that it was therefore an error for the trial
court to rely on the record of the canvass in denying
his motion to vacate his guilty plea without first
affording him an evidentiary hearing on the merits of
his ineffective assistance of counsel claim.
Reviewing the plea canvass and the record as a whole,
we conclude that the defendant did not meet his burden
of showing a plausible reason for the withdrawal of his
guilty plea sufficient to require an evidentiary hearing.
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The only reason offered in support of his motion was
that the record of the plea hearing clearly established
that his counsel failed to advise him on the charges in
the new plea deal and therefore clearly showed that
his counsel rendered deficient performance. The record
of the plea proceeding, however, conclusively refutes
the allegations in the defendant’s motion because it
demonstrates that the defendant had previously been
presented with a plea offer that he later accepted and
that was the impetus for his guilty plea. The defendant
has failed to allege that his counsel did not advise him
of the charge when he was presented with the initial
plea offer. We accordingly conclude that the defendant
failed to set forth sufficient facts to require an evidentiary hearing.
B
The defendant further argues that counsel was ineffective because, at the time of the plea hearing, he did
not advise the defendant of the nature of the charge of
intimidation based on bigotry or bias to which he was
pleading guilty or how the facts relate to that charge
and because counsel failed to advise him of possible
constitutional concerns with § 53a-181l. We are not persuaded.
The record reflects that the first docket included a
charge of intimidation based on bigotry or bias as early
as August 31, 2021, several months prior to the defendant’s plea hearing. The state first made a plea offer
that included a charge of intimidation based on bigotry
and bias in the second degree in the first docket. The
defendant, through his counsel, acknowledged the
state’s offer and asked the court for a date by which
he could accept or reject the offer. Additionally, during
the plea hearing on January 14, 2022, defense counsel
stated on the record that the defendant ‘‘was originally
going to plea[d] [guilty] to intimidation based on bigotry
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State v. Roberts
and bias’’ in the first docket, but that, at the pretrial
judge’s insistence, the offer was instead amended to
include the intimidation charge in the second docket.
The prior plea offer required the defendant to plead
guilty to the same charge to which he later pleaded
guilty. The defendant does not dispute that counsel
provided him with adequate information and advice in
connection with the prior plea offer. Thus, without any
evidence to the contrary, we may presume that counsel
provided adequate information and advice to the defendant on which the defendant could make an informed
decision as to whether to accept the offer. ‘‘[I]t is appropriate to presume that in most cases defense counsel
routinely explain the nature of the offense in sufficient
detail to give the accused notice of what he is being
asked to admit.’’ (Internal quotation marks omitted.)
State v. Lopez, 269 Conn. 799, 802,
850 A.2d 143 (2004);
see also Oppel v. Meachum, 851 F.2d 34, 38 (2d Cir.)
(‘‘under Henderson v. Morgan, [426 U.S. 637, 647,
96 S.
Ct. 2253,
49 L. Ed. 2d 108 (1976)] it is normally presumed
that the defendant is informed by his attorney of the
charges against him and the elements of those
charges’’), cert. denied, 488 U.S. 911,
109 S. Ct. 266,
102
L. Ed. 2d 254 (1988). We can therefore presume that,
prior to the January 14, 2022 plea hearing, defense counsel informed the defendant about the nature of the
charge and how the charge applied to the facts.
Moreover, the record reflects that the defendant
understood the factual basis underlying his guilty plea
and how those facts supported the charges against him.
During his plea canvass, the defendant stated that he
had reviewed the facts that led to his arrest on all three
charges with his attorney, he understood the day to
which the court was referring and how the charges
pertained to that day, and his attorney had explained
the elements of each charge to him. He additionally
affirmed that he was satisfied with the legal advice
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State v. Roberts
he received from his attorney after the change to the
charges had occurred.
We additionally conclude that the defendant failed
to establish that his counsel rendered ineffective assistance by failing to advise him of possible constitutional
concerns with § 53a-181l. He argues that it must be
the case that his counsel failed to advise him of any
constitutional concerns implicated by his guilty plea
under § 53a-181l because the plea offer was changed
in the middle of the hearing. As addressed at length
previously in part II, however, the prior plea offer was
the same offer to which he later pleaded. The only
change made to the plea offer was the docket in which
the charge of intimidation based on bigotry or bias
was filed. The defendant therefore pleaded guilty to the
same crime, only under a different docket.
The fact that counsel did not stop to discuss the
change in the plea with the defendant during the plea
hearing does not indicate that counsel did not previously advise the defendant of the possible constitutional concerns of § 53a-181l. We therefore conclude
that the defendant has failed to meet his burden in
showing that his counsel’s performance was not within
the range of competence demanded of attorneys in
criminal cases, and, therefore, conclude that the defendant has failed to prove the performance prong.
Because we conclude that the defendant has failed
to prove the performance prong and the failure to prove
either of the two prongs is fatal to a claim of ineffective
assistance of counsel; see, e.g., State v. Lynch, supra,
193 Conn. App. 659; we need not address the prejudice
prong. We accordingly conclude that the court properly
determined that there was no ineffective assistance of
counsel.
III
The defendant finally claims that § 53a-181l is facially
unconstitutional under the first amendment because it
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‘‘plainly criminalizes conduct that could not be considered a ‘true threat’16 and does so explicitly on the basis
of the viewpoint of the speaker.’’ (Footnote added.) We
conclude that the defendant has failed to adequately
brief his claim and accordingly decline to review it.17
‘‘We repeatedly have stated that [w]e are not required
to review issues that have been improperly presented
to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in
order to avoid abandoning an issue by failure to brief
the issue properly. . . . [F]or this court judiciously and
efficiently to consider claims of error raised on appeal
. . . the parties must clearly and fully set forth their
arguments in their briefs. . . . The parties may not
merely cite a legal principle without analyzing the relationship between the facts of the case and the law
cited.’’ (Citation omitted; internal quotation marks omitted.) State v. Buhl, 321 Conn. 688, 724,
138 A.3d 868
(2016). ‘‘Claims are inadequately briefed when they are
merely mentioned and not briefed beyond a bare assertion. . . . Claims are also inadequately briefed when
they . . . consist of conclusory assertions . . . with
no mention of relevant authority and minimal or no
citations from the record . . . .’’ (Internal quotation
16
‘‘The first amendment . . . does not protect speech that qualifies as
[t]rue threats. . . . True threats encompass those statements [in which] the
speaker means to communicate a serious expression of an intent to commit
an act of unlawful violence to a particular individual or group . . . .’’ (Citation omitted; internal quotation marks omitted.) State v. Parnoff, 329 Conn.
386, 394,
186 A.3d 640 (2018).
17
Although the state argues that this claim is not properly before this
court because the defendant failed to raise it prior to his guilty plea, citing
the United States Supreme Court cases of Class v. United States, 583 U.S.
174,
138 S. Ct. 798,
200 L. Ed. 2d 37 (2018), and Haynes v. United States,
390 U.S. 85,
88 S. Ct. 722,
19 L. Ed. 2d 923 (1968), for the proposition that
only a preplea challenge to the constitutionality of a statute may be raised
on appeal, we need not decide this issue because we conclude that the
defendant’s claim that § 53a-181l is facially unconstitutional is inadequately briefed.
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marks omitted.) Estate of Rock v. University of Connecticut, 323 Conn. 26, 33,
144 A.3d 420 (2016).
The defendant argues in his appellate brief that the
statute ‘‘plainly criminalizes conduct that could not be
considered a ‘true threat’ and does so explicitly on the
basis of the viewpoint of the speaker.’’ He asserts, with
no relevant citations or legal support, that ‘‘[a] threat
against property is not a true threat of violence, as
acts of violence are commonly understood to be acts
committed against persons. Even if there is a usage of
the word ‘violence’ that includes a threat to property,
it would not be the type of violence discussed by the
United States Supreme Court in its ‘true threats’ jurisprudence.’’ (Emphasis in original.) Although the defendant cites a Supreme Court case, Virginia v. Black, 538
U.S. 343, 344,
123 S. Ct. 1536,
155 L. Ed. 2d 535 (2003),
which states that ‘‘[i]ntimidation in the constitutionally
proscribable sense of the word is a type of true threat,
where a speaker directs a threat to a person or group
of persons with the intent of placing the victim in fear of
bodily harm or death,’’ he does not engage in meaningful
analysis that considers the application of Black to § 53a-
181l. Instead, he offers only hypothetical examples of
the overbreadth of the statute18 and conclusively states
that, although these hypothetical statements ‘‘might be
obnoxious and constitute harassment under certain circumstances, they cannot be criminalized simply
because they harass a certain group of individuals. Such
statements do not fall into any category that has ever
been recognized as the unprotected category of nonspeech, and clearly it is only speech and not conduct.’’
18
The defendant argues: ‘‘The statute is also broad enough to cover mere
threats to personal property of others that would not constitute unprotected
speech. For example, the statute would criminalize a neighbor’s expression
that they intend to destroy a neighbor’s pride flag, Black Lives Matters sign,
or nativity scene.’’
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The defendant additionally devotes very little argument to his claim that § 53a-181l is facially unconstitutional. ‘‘Although the number of pages devoted to an
argument in a brief is not necessarily determinative,
relative sparsity weighs in favor of concluding that the
argument has been inadequately briefed. This is especially so with regard to first amendment and other constitutional claims, which are often analytically complex.
See, e.g., Schleifer v. Charlottesville, 159 F.3d 843,
871–72 (4th Cir. 1998) (‘[f]irst [a]mendment jurisprudence is a vast and complicated body of law that grows
with each passing day’ and involves ‘complicated and
nuanced constitutional concepts’), cert. denied, 526
U.S. 1018,
119 S. Ct. 1252,
143 L. Ed. 2d 349 (1999);
Missouri v. National Organization for Women, Inc.,
620 F.2d 1301, 1326 (8th Cir.) (first amendment issues
are ‘complex’), cert. denied, 449 U.S. 842,
101 S. Ct. 122,
66 L. Ed. 2d 49 (1980); see also In re Melody L.,
290
Conn. 131, 154–55,
962 A.2d 81 (2009) (one and one-half page equal protection claim was inadequate), overruled on other grounds by State v. Elson,
311 Conn.
726, 746–47,
91 A.3d 862 (2014); Connecticut Light &
Power Co. v. Dept. of Public Utility Control, [266 Conn.
108, 120,
830 A.2d 1121 (2003)] (claim under takings
clause was inadequately briefed when plaintiff provided
‘no authority or analysis in support of its specific
claim’); In re Shyliesh H., 56 Conn. App. 167, 181,
743
A.2d 165 (1999) (attempt to brief two constitutional
claims in two and one-half pages was inadequate).’’
State v. Buhl, supra,321 Conn. 726. We therefore conclude that the defendant’s constitutional challenge to
§ 53a-181l is inadequately briefed and we decline to
review it.
The judgment is affirmed.
In this opinion the other judges concurred.
