Date: 04-25-2016

Case Style: STATE OF CONNECTICUT v. BLAKE WARNER

Case Number: AC 37624

Judge: Alexandra D. DiPentima

Court: Connecticut Appellate Court

Plaintiff's Attorney: Bruce R. Lockwood, John C. Smriga, Kevin J. Dunn

Defendant's Attorney: Norman A. Pattis

Description: 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. Specifically, the defendant claims that the court should have conducted an evidentiary hearing to determine if his counsel,AttorneyFrankRiccio,Jr.,providedineffective assistancebyfailingtoconductanindependentinvestigation 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 facieclaimofineffectiveassistanceofcounsel—byway 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 present his claim either on direct appeal or through a petitionforawritofhabeascorpus.’’2 Weagreewiththe partiesthatthedefendantwasentitledtoanevidentiary hearing regarding Riccio’s alleged ineffective assistance.Accordingly,wereversethejudgmentsofconviction, and remand the case for such a hearing. As to the defendant’s Fernando A. claim, we conclude that the courtdidnotabuseitsdiscretionbydenyinghisrequest 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 General Statutes § 53a-64bb and violation of a protective order in violation of General Statutes § 53a-223. In setting forth the factual basis for the plea in the first case, thestaterecountedthatintheearlymorningofDecember 9, 2013, the defendant grabbed the victim4 by the throat, impeding her ability to breathe. At the defendant’s arraignment that same day, the court issued a protectiveorder.Astothefactualbasisfortheviolation 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 assistance of counsel. The case was continued to January 5, 2015, for sentencing. The recommended sentence wasfiveyearsincarceration,executionsuspendedafter 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 withdraw 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 thestatehadawitnesswhowouldtestifythatthedefendant had made certain inculpatory statements to him. The defendant then decided to enter guilty pleas. After the court accepted the pleas, the defendant confronted thepurportedwitness,whodeniedthathewasprepared to testify against the defendant or that he had heard the defendant inculpate himself. As a basis for withdrawing his pleas, the defendant alleged that Riccio rendered ineffective assistance of counsel by relaying thisinformationtothedefendantwithoutfirstconducting 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 assignedtothedefendantathisarraignmentonDecember 9, 2013, neither requested a hearing pursuant to Statev.FernandoA.,supra,294Conn.25–26,norasked 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 proceed with sentencing immediately. After Pattis acknowledgedthathewasnotchallengingtheadequacy of the plea canvass, the court ruled: ‘‘I think that the issuesthathadbeenraisedshouldberaisedinahabeas corpus proceeding as opposed to an alternative proceeding. 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 suspended 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 evidentiary hearing . . . in violation of State v. [Fernando A., supra, 294 Conn. 1]. Second, the court refused to provide 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 ahearingregardingthecontinuedviabilityoftheprotective order pursuant to Fernando A., the state disagrees that an evidentiary hearing was warranted. For the followingreasons,weagreewiththepartiesthatthecourt abused its discretion in denying the defendant an evidentiaryhearingastotheclaimthatRicciohadprovided ineffective assistance by failing to conduct an independent investigation of the state’s purported witness. Additionally, we agree with the state that the defendant’s Fernando A. claim fails as a result of the collateral 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). Further, 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). Inorder toprevail onthis claim,thedefendant ‘‘must satisfy two requirements . . . . First, he must 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 oftheineffectiveassistance.’’(Internalquotationmarks omitted.). State v. Nelson, 67 Conn. App. 168, 177, 786 A.2d 1171 (2001). Weareguidedinouranalysisofthedefendant’sclaim 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.Followinghisplea,thedefendantobtainednew counsel and sought to withdraw his plea. Id. Specifically, his counsel obtained a transcript of the plea canvass 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 incidents of his attorney’s ineffectiveness . . . the court abused its discretion in denying his motion for an evidentiary hearing.’’ (Internal quotation marks omitted.)
Id. At the outset of our analysis, we recited the following:‘‘Afteraguiltypleaisacceptedbutbeforetheimposition of sentence the court is obligated to permit withdrawal upon proof of one of the grounds in [Practice 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 hearingon amotion towithdraw aguiltyplea thecourt 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 allegationoffacttobetrue.Ifsuchallegationsfurnishabasis for withdrawal of the plea under [§ 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.’’ (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 conductinganevidentiaryhearing.Id.,550.‘‘Therecord of the plea proceeding does not conclusively refute the allegations of fact in the defendant’s motion and accompanying affidavits. . . . Therefore, an evidentiary 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 purported state’s witness, his subsequent plea was unknowing and involuntary. There was nothing to conclusively 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 judgment must be reversed and the case remanded for an evidentiary hearing.6 See id. As for the second ground for withdrawing his plea, thedefendantassertsthatthecourtshouldhavepermittedanevidentiaryhearingforhisclaimthathisassigned publicdefenderwasineffectiveinnotrequestingahearing pursuant to State v. Fernando A., supra, 294 Conn. 7–8.Wearenotpersuaded.Thedefendantwasobligated to obey the protective order, regardless of whether it was issued improperly. His claim, predicated on his constitutional right to the effective assistance of counsel, 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 reaching 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 criminalproceeding.Id.,426.Specifically,itstated:‘‘Our endorsement of that rule in Cologne leads us to conclude 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 toanattorneywhenheappearedattheprotectiveorder hearing without counsel. Id., 432–33. Specifically, he arguedthat‘‘thepresenceofanattorneyatthathearing wouldhavepreventedthecourtfromissuingtheinvalid order in the first place.’’ Id., 433. Our Supreme Court responded: ‘‘We nonetheless conclude that the defendant’srighttocounselclaimsimplyamountstoanother 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 nowchallengethevalidityofthatorder,evenonconstitutional principles. We conclude, therefore, that the courtdidnotabuseitsdiscretionindenyingthemotion to withdraw the defendant’s guilty plea on the basis of his Fernando A. claim.

Outcome: Thejudgmentsarereversedandthecaseisremanded for an evidentiary hearing to determine whether the defendant should be allowed to withdraw his guilty pleasonthebasisofhisclaimthathiscounselrendered ineffectiveassistancebyfailingtoinvestigatethestate’s purported witness, and for further proceedings according to law.

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