text:
    Anthony E. Basilicato v. Department of Public Utility Control
    (12541)
    Peters, C. J., Shea, Santaniello, Dannehy and Callahan, Js.
    Argued May 8
    decision released September 3, 1985

      Otto P. Witt, for the appellant (plaintiff).

      Phyllis E. Lemell, assistant attorney general, with whom was Robert S. Golden, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, for the appellee (defendant).
   Santaniello, J.

This appeal concerns a disputed electric bill and a protested change in the plaintiffs rate classification by the United Illuminating Company (hereinafter UI).

The record discloses that on October 26, 1981, the plaintiff requested a hearing before the department of public utility control (hereinafter DPUC) to protest a change in his electric rate and bill. UI was designated a party to the proceedings by the DPUC. A hearing was held in May, 1983, and a decision was issued by the DPUC on September 27, 1983. The DPUC concluded that the plaintiff had been properly billed and owed a balance of $700. On October 4,1983, the plaintiff filed a motion for reconsideration which was denied by the DPUC. The plaintiff filed an appeal from the decision of the DPUC to the Superior Court for the judicial district of New Haven, pursuant to General Statutes § 4-183 (b) of the Uniform Administrative Procedure Act. The plaintiff signed the petition pro se and noted on the bottom of the last page that service on both the DPUC and the UI was made by certified mail. On February 22,1984, the clerk of the Superior Court acknowledged receipt of the petition by means of a file stamp. There was no writ of summons directing service accompanying the petition, nor was the petition in the form for appeals from decisions of the DPUC.

The DPUC filed a motion to dismiss the action for failure of the plaintiff to make proper service on UI, and for failure to include a citation for service in the body of the petition. On April 10,1984, counsel entered an appearance for the plaintiff who, until that point in the proceedings, had appeared pro se. The trial court, Hadden, J., dismissed the appeal for failure to include a proper citation and failure to serve a party of record. On June 15, 1984, the plaintiff appealed the trial court’s decision to the Appellate Court. We then transferred the case to this court pursuant to Practice Book § 3004A.

The plaintiff raises two issues on appeal: (1) whether substantial compliance with the procedural rules by a pro se litigant vests jurisdiction in the Superior Court to determine the issues raised by an administrative appeal; and (2) whether the implied approval of the petition by the clerk of the court bars a dismissal of the appeal for defects in form. We find no error.

The plaintiff claims that he complied substantially with the procedures for filing an appeal of an administrative decision and that consequently the court had jurisdiction to hear the matter. He claims that in filing the petition he sought the assistance of the clerk of the court, followed his instructions, and, based upon such reliance, caused the appeal to be served on both UI and the DPUC by certified mail. He argues that he made a good faith effort to comply with the procedural rules and since he was appearing pro se, the court should fashion a rule that allows a pro se litigant some measure of protection from untimely dismissal of actions.

“Appeals to courts from administrative agencies exist only under statutory authority. Tazza v. Planning & Zoning Commission, 164 Conn. 187, 190, 319 A.2d 393 [1972]; East Side Civic Assn. v. Planning & Zoning Commission, 161 Conn. 558, 560, 290 A.2d 348 [1971]. A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created. In re Nunez, 165 Conn. 435, 441, 334 A.2d 898 [1973]; Chanosky v. City Building Supply Co., 152 Conn. 449, 451, 208 A.2d 337 [1965]; 4 Am. Jur. 2d, Appeal and Error, § 4..... Such provisions are mandatory, and, if not complied with, render the appeal subject to abatement. Daley v. Board of Police Commissioners, 133 Conn. 716, 719, 54 A.2d 501 [1947].” Royce v. Freedom of Information Commission, 177 Conn. 584, 587, 418 A.2d 939 (1979), quoting Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 6, 363 A.2d 1386 (1975).

The statutory authority for appeals from DPUC decisions rests in the provisions of General Statutes §§ 16-35 and 4-183. Section 4-183 (b) which sets out the requirement for service, directs that all parties shall be “served” with copies of the petition except that service upon the agency may be accomplished by mailing a copy of the petition registered or certified mail, postage prepaid, to the office of the commissioner of the agency or to the office of the attorney general in Hartford. All other process shall be directed to a “sheriff, his deputy, a constable or other proper officer authorized by statute, or ... to an indifferent person.” General Statutes § 52-50. It is conceded that the only service in this matter was made on TJI and the DPUC by certified mail.

The appeal provisions of the statute are jurisdictional in nature, and, if not complied with, render the appeal petition subject to dismissal. Norwich Land Co. v. Public Utilities Commission, supra. There are no special rules authorizing a lesser standard of compliance for pro se parties. Any litigant may choose to proceed without representation, but all are bound by the same standards. While a trial court can exhibit some degree of leniency towards a pro se plaintiff, the court cannot disregard established and mandatory requirements which circumscribe jurisdiction in the first instance. See generally Hartford National Bank & Trust Co. v. DiFasio, 177 Conn. 34, 39 n.2, 411 A.2d 8 (1979). We therefore find no error in the trial court’s dismissal of the action for lack of jurisdiction.

The plaintiff raises the additional claim that he sought the assistance of the clerk of the Superior Court and followed the instructions of the clerk with respect to service. He claims that the clerk reviewed the petition and should have noticed that it did not provide for a citation and that it indicated that service on both UI and the DPUC had been made by certified mail. He further claims that the clerk then signed the petition. In effect, his claim is that the clerk impliedly approved the form of the writ of summons. The plaintiff relies on Practice Book § 49 which reads in pertinent part: “If any person is proceeding without the assistance of counsel, he shall sign the complaint and present the complaint and proposed writ of summons to the clerk; the clerk shall review the proposed writ of summons and, unless it is defective as to form or does not contain a bond for prosecution pursuant to Sec. 51, shall sign it.”

Although the plaintiff argues that the clerk informed him that service by certified mail was proper, he has presented no evidence to support this claim. The record is barren of any evidence implicating the clerk’s office in the plaintiff’s shortcomings.

A review of the court file reflects that there was no writ of summons attached to the petition for the clerk to review. The clerk merely stamped the petition as filed on February 22, 1984. There was no clerk’s signature anywhere on the three page petition.

The clerk’s limited responsibilities under § 49 are to review the proposed writ of summons as to form and to check for an approprite bond for prosecution. If both are in order, he then shall sign the document. Since there was no writ of summons attached, the clerk did not sign the proffered document but merely stamped it as filed.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 16-35. appeals to superior court. Any company, town, city, borough, corporation or person aggrieved by any order, authorization or decision of the department of public utility control, except an order, authorization or decision of the department approving the taking of land, in any matter to which he or it was or ought to have been made a party, may appeal therefrom in accordance with the provisions of section 4-183. The party so appealing shall give bond to the state, with sufficient surety, for the benefit of the adverse party, in such sum as the department fixes, to pay all costs in case he or it fails to sustain such appeal.”

       General Statutes § 4-183 provides in pertinent part: “appeal to superior court, (a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review by way of appeal under this chapter ....
      “(b) Proceedings for such appeal shall be instituted by filing a petition in superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the aggrieved person resides or if such person is not a resident of this state to the court for the judicial district of Hartford-New Britain within forty-five days after mailing of the notice of the final decision of the agency or, if a rehearing is requested, within forty-five days after the decision thereon. Copies of the petition shall be served upon the agency and all parties of record within thirty days after mailing of such notice, or, if a rehearing is requested, thirty days after the decision thereon except that service upon an agency may be made by mailing a copy of the petition by registerd or certified mail, postage prepaid, to the office of the commissioner of the agency or to the office of the attorney general in Hartford. ...” (Emphasis added.)

       “[General Statutes] Sec. 52-50. persons to whom process shall be directed, (a) All process shall be directed to a sheriff, his deputy, a constable or other proper officer authorized by statute, or, subject to the provisions of subsection (b) of this section, to an indifferent person. A direction on the process ‘to any proper officer’ shall be sufficient to direct the process to a sheriff, deputy sheriff, constable or other proper officer. . . .”

       “[Practice Book] Sec. 49. mesne process
      “Mesne process in civil actions shall be a writ of summons or attachment, describing the parties, the court to which it is returnable and the time and place of appearance, and shall be accompanied by the plaintiffs complaint. Such writ may run into any judicial district or geographical area and shall be signed by a commissioner of the superior court or a judge or clerk of the court to which it is returnable. Except in those actions and proceedings indicated below, the writ of summons shall be on a form substantially in compliance with Form 503.1 (JD-FM-3) in family actions and with Form 103.1 (JD-CV-1) in other civil actions. If any person is proceeding without the assistance of counsel, he shall sign the complaint and present the complaint and proposed writ of summons to the clerk; the clerk shall review the proposed writ of summons and, unless it is defective as to form or does not contain a bond for prosecution pursuant to Sec. 51, shall sign it. . . .”

       An examination of the petition discloses that “service by certified mail had already been made prior to presentation of same to the clerk.” On page three of the petition dated February 15,1984, there was a postscript noted as follows: “Cert. Mail to: D.P.U.C. - No. 5000763, U.I. Co. - No. 5000764.”
      A receipt for certified mail No. 5000763 from the North Haven post office was dated February 15,1984, and a return receipt reflected that said mail was received at the office of the DPUC in New Britain on February 16, 1984. A review of a letter dated February 15, 1984, addressed to Robert T. Murphy, Executive Secretary of DPUC, reflects that Certified Mail No. 5000764 had already been addressed to E. Jon Majkowski, U.I. Co. The petition of appeal was presented to the clerk’s office for the judicial district of New Haven and file stamped February 22, 1984, indicating that the plaintiffs allegation that the clerk authorized “service by certified mail” was not supported by the facts insofar as service had already been made seven days before the petition was presented to the clerk.


source: Caselaw Access Project

author: Callahan, J. Shea, J.,

license: Public Domain

text:
    State of Connecticut v. Dominic F. Bruno
    (12510)
    Peters, C. J., Healey, Shea, Santaniello and Callahan, Js.
    Argued June 12
    decision released September 3, 1985

      Ronald E. Cassidento, for the appellant (defendant).

      JohnM. Massameno, assistant state’s attorney, with whom were LindaN. Knight, deputy assistant state’s attorney, and, on the brief, Austin J. McGuigan, chief state’s attorney, and John Dropick, assistant state’s attorney, for the appellee (state).
   Callahan, J.

This is an appeal, after certification, from an Appellate Court decision affirming the conviction of the defendant, Dominic Bruno, after a trial to the court, Borden, J., of six counts of eavesdropping in violation of General Statutes § 53a-189, one count of conspiracy to commit eavesdropping in violation of General Statutes §§ 53a-48 and 53a-189, and two counts of criminal mischief in the first degree in violation of General Statutes § 53a-115. The defendant received an effective sentence of one year, execution suspended after six months, and two years probation, and was fined five hundred dollars. In his appeal to the Appellate Court, the defendant raised four claims of error, none of which the Appellate Court found persuasive. The present appeal concerns only one of these claims, namely, that the trial court’s refusal to conduct an in camera inspection of the psychiatric records of a state’s witness, or to make the records available to defense counsel, violated the defendant’s right to conduct an effective cross-examination of the witness, as guaranteed by the sixth amendment to the United States constitution. We granted certification to review the decision of the Appellate Court finding no error. We affirm the decision of the Appellate Court.

The decision of the Appellate Court describes the underlying facts. State v. Bruno, 1 Conn. App. 384, 473 A.2d. 311 (1984). The defendant was accused of several instances of wiretapping and of engaging in acts of vandalism. The police investigation of the defendant was initiated by his former girlfriend, who reported in January, 1979, to the police “her suspicions that the defendant had stolen some personalty of hers, and that she believed that the defendant was wiretapping.” Id., 386. In anticipation of the complainant’s testimony at trial, “the defense subpoenaed her medical records for the years 1978 and 1979 from the Charlotte Hunger-ford Hospital, which included the records of her treatment in the psychiatric inpatient unit of the hospital.” Id., 388. The hospital moved to quash the subpoena, in which motion the complainant joined, and the defendant filed an application for permission to review the hospital records. The court granted the motion to quash the subpoena and denied the defendant’s motion to review the records.

The trial court based its rulings on General Statutes § 52-146e, which at the time of trial provided, in relevant part, that “ ‘no person shall disclose or transmit any . . . [oral or written] communications or records [relating to diagnosis or treatment of a mental condition made between the patient and a psychiatrist] where the patient is identifiable, or the substance or any part or parts of any resume thereof, to any person, any corporation or any governmental agency, municipal, state or federal, without the consent of the patient or his authorized representative.’ ” Id., 389. At the hearing on the motion to quash the subpoena, the trial court found that the records sought by the defendant fell within the statutory privilege, and that the blanket prohibition of the statute precluded both the defendant’s review of the records and an in camera inspection by the court. The defendant took an exception to the trial court’s rulings on the motion to quash the subpoena and the motion for permission to examine the records. Id., 390.

In his appeal to the Appellate Court, the defendant claimed that the trial court’s rulings with regard to the witness’ psychiatric records precluded him from conducting an effective cross-examination of the witness, in violation of his constitutional right to confront the witnesses against him. Id. After his appeal had been argued in the Appellate Court, but before that court rendered its decision, this court decided the case of State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984). In Esposito, we considered the question of when, if ever, a trial court or a criminal defendant should be permitted to inspect the psychiatric records of a state’s witness to discover whether they contain relevant impeaching evidence. Id., 176-80. There we decided that “[t]he broad sweep of [General Statutes § 52-146e] covers not only disclosure [of a witness’ psychiatric records] to a defendant or his counsel, but also disclosure to a court even for the limited purpose of an in camera examination.” Id., 178. We then went on to articulate a procedure which would protect the witness’ statutory right to confidentiality while simultaneously safeguarding the defendant’s constitutional right effectively to cross-examine the witness. First, the defendant is required to make “a showing that there is reasonable ground to believe that the failure to produce the information is likely to impair the defendant’s right of confrontation such that the witness’ direct testimony should be stricken. Upon such a showing the court may then afford the state an opportunity to secure the consent of the witness for the court to conduct an in camera inspection of the claimed information and, if necessary, to turn over to the defendant any relevant material for the purposes of cross-examination. If the defendant does make such showing and such consent is not forthcoming then the court may be obliged to strike the testimony of the witness. If the consent is limited to an in camera inspection and such inspection, in the opinion of the trial judge, does not disclose relevant material then the resealed record is to be made available for inspection on appellate review. If the in camera inspection does reveal relevant material then the witness should be given an opportunity to decide whether to consent to release of such material to the defendant or to face having her testimony stricken in the event of refusal.” Id., 179-80.

The Appellate Court found that the preliminary showing, required under Esposito, “that the failure to produce the records was likely to impair the defendant’s right to confront the witness against him” had been made. State v. Bruno, supra, 395. Citing State v. Esposito, supra, the court acknowledged that “[s]ince the witness did not consent to a release of the records to anyone, including the [trial] court for an in camera review, the [trial] court ‘may’ have become obliged to strike the testimony of the witness.” (Footnotes omitted.) State v. Bruno, supra. Upon review of the record and transcripts in the case, however, the Appellate Court found a clear showing “that the evidence offered by the state, even without the testimony of the witness, was sufficient to prove the defendant’s guilt beyond a reasonable doubt.” Id. The court therefore concluded that there was no error because “[e]ven if we assume, that the trial court would have, under the holding of State v. Esposito, supra, stricken the testimony of the witness, the defendant still would have been proven guilty beyond a reasonable doubt.” Id.

In his request to this court for certification, the defendant raised two related issues. The first concerns whether the trial court’s refusal to grant the defendant access to the witness’ psychiatric records, or to inspect the records in camera, deprived the defendant of his sixth amendment right effectively to cross-examine the witness. The second issue is whether the Appellate Court erroneously applied a “harmless error test” in reviewing the rulings of the trial court with regard to the witness’ psychiatric records.

In an appeal from the Appellate Court, “the focus of our review is not the actions of the trial court, but the actions of the Appellate Court. We do not hear the appeal de novo. The only questions that we need consider are those squarely raised by the petition for certification, and we will ordinarily consider these issues in the form in which they have been framed in the Appellate Court.” State v. Torrence, 196 Conn. 430, 433, 493 A.2d 865 (1985).

The first question raised by the defendant, as to whether his sixth amendment rights were violated by the denial of access to the witness’ psychiatric records and the absence of an in camera inspection, is unanswerable. Because “the witness did not consent to a release of the records to anyone, including the court for an in camera review”; State v. Bruno, supra; the records are not “available for inspection on appellate review”; State v. Esposito, supra, 180; by either the Appellate Court or this court. Although the witness in fact testified extensively upon cross-examination by the defendant regarding her psychiatric treatment and hospitalizations, her alcoholism and drug use, her suicide attempts, and her feelings of fear and anger toward the defendant; State v. Bruno, supra, 392; absent any knowledge of the contents of her psychiatric records, it is impossible to determine whether they included relevant impeaching evidence that was not cumulative or was contrary to her testimony. To rely on the testimony actually elicited on cross-examination in assessing whether the defendant’s sixth amendment rights were violated would involve pure speculation as to the contents of the witness’ records. The Appellate Court properly did not engage in such a futile exercise, nor do we.

As the Appellate Court correctly noted, “[t]he claim here ... is not thát the defendant was restricted in any way in cross-examination, but that without examination of the psychiatric records of the witness the defendant’s right to confrontation was impaired to such an extent that he was denied a fair trial.” Id. The Appellate Court rejected the defendant’s claim on the ground that, even absent the witness’ testimony, there was clearly sufficient evidence to prove the defendant’s guilt beyond a reasonable doubt. Id., 395. This brings us to the second question raised by the defendant in his appeal to this court, that is, whether “[t]he Appellate Court applied a ‘harmless error test’ in the violation of his basic constitutional right to confront witnesses, which right goes to the integrity of the fact finding process of determining guilt or innocence in violation of the guidelines set forth in State v. Truppi, 182 Conn. 449 [438 A.2d 712 (1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981)].”

In State v. Truppi, supra, 466, this court reversed a defendant’s convictions for robbery and kidnapping because the trial court’s instructions had shifted to the defendant the burden of proof as to the intent element of those crimes in violation of his due process rights. Although the state urged that the error was harmless in light of the overwhelming evidence of the defendant’s guilt; id., 465; we refused “to weigh the evidence of guilt against the uncured damage done by the harmful portion of the instructions”; id., 466; because such an analysis “would transfer to this ‘court the jury’s function of measuring the evidence by appropriate legal yardsticks.’ ” Id., quoting Bollenbach v. United States, 326 U.S. 607, 614, 66 S. Ct. 402, 90 L. Ed. 350 (1946); compare State v. Couture, 194 Conn. 530, 563, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985) (improper remarks by prosecutor during opening summation to jury required reversal of convictions despite “record that [did] not permit serious doubt of [the defendant’s] guilt”), with State v. Cohane, 193 Conn. 474, 485, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984) (trial court’s erroneous refusal to instruct jury that no adverse inference could be drawn from the defendant’s failure to testify “may be held harmless only if the evidence against the accused is so overwhelming that we can conclude as a matter of law that the jury’s verdict was not influenced by the absence of [the] instruction”).

The defendant argues that the analysis applied by the Appellate Court conflicts with the established principle that “certain constitutional protections are so central to the requirement of a fair trial that their violation absolutely requires that the conviction from which they arose be set aside.” State v. Cohane, supra, 484, citing Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967). The defendant cites two cases in which the United States Supreme Court stated that “ ‘a denial of cross-examination without waiver . . . would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.’ Brookhart v. Janis, 384 U.S. 1, 3 [86 S. Ct. 1245, 16 L. Ed. 2d 314(1966)].”Smith v. Illinois, 390 U.S. 129, 131, 88 S. Ct. 748, 19 L. Ed. 2d 956 (1968). A close examination of these cases reveals, however, that the defendant’s reliance upon them is misplaced.

In Brookhart v. Janis, supra, 7, the defendant’s attorney informed the trial court “that the State need make only a prima facie showing of guilt and that he would neither offer evidence on [the defendant’s] behalf nor cross-examine any of the State’s witnesses.” The United States Supreme Court overturned the conviction because the record failed to demonstrate that the defendant himself knowingly and intelligently agreed “to be tried in a proceeding which was the equivalent of a guilty plea and in which he would not have the right to be confronted with and cross-examine the witnesses against him.” Id. In Smith v. Illinois, supra, where the “only real question at the trial . . . was the relative credibility of the petitioner and [the principal] prosecution witness”; id., 130; the defendant was not permitted to ask the witness either his name or address. The Supreme Court held that “[t]o forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.” Id., 131.

In Brookhart and Smith, each defendant demonstrated a clear violation of his constitutional right to confront and cross-examine the witnesses against him. As previously discussed, however, it is impossible to determine whether the defendant’s right to cross-examine the witness was impaired in this case absent an opportunity to review the witness’ psychiatric records. It is to protect a defendant from the possibility of a violation of his confrontation rights that State v. Esposito, supra, contemplates striking the testimony of a witness who asserts the privilege of confidentiality in the face of a showing of likely impairment of those rights absent disclosure. Id., 179-80. In light of Esposito, because this defendant made the requisite preliminary showing, he would have been entitled to have the witness’ testimony stricken upon her refusal to permit an in camera inspection. Thus, although the defendant cannot prove that he was deprived of his sixth amendment right to confront the witness, he can claim that her testimony should have been excluded from the evidence upon which his guilt was determined and that the procedure followed below was erroneous.

This court has previously applied the harmless error doctrine to uphold convictions, despite the erroneous admission of testimony at trial, where there was overwhelming evidence of the defendant’s guilt. See, e.g., State v. Brown, 187 Conn. 602, 612, 447 A.2d 734 (1982); State v. Briggs, 179 Conn. 328, 336-37, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980); State v. Zeko, 177 Conn. 545, 557, 418 A.2d 917 (1979); Palmer v. Adams, 162 Conn. 316, 328, 294 A.2d 297 (1972); see also Brown v. United States, 411 U.S. 223, 93 S. Ct. 1565, 36 L. Ed. 2d 208 (1973). In light of the Appellate Court’s unchallenged finding that, even absent the witness’ testimony, “the defendant still would have been proven guilty beyond a reasonable doubt”; State v. Bruno, supra, 395; we agree that the convictions should be sustained. We interpret the Appellate Court’s finding to mean that, as a matter of law, the remaining evidence against the defendant was so overwhelming as to render any error in not striking the complainant’s testimony harmless beyond a reasonable doubt.

The decision of the Appellate Court is affirmed.

In this opinion Peters, C. J., Healey and Santaniello, Js., concurred.

Shea, J.,

concurring. I agree with the majority’s application in this case of the harmless error doctrine in the form appropriate for errors of constitutional import, i.e., harmlessness beyond a reasonable doubt. The opinion of the Appellate Court, however, appears to have employed a different standard: “A review of the record and transcripts in the present case, however, clearly demonstrates that the evidence offered by the state, even without the testimony of the witness, was sufficient to prove the defendant’s guilt beyond a reasonable doubt.” State v. Bruno, 1 Conn. App. 384, 395, 473 A.2d 311 (1984). This sentence, declaring that, even with the omission of the testimony that should have been stricken, the state’s evidence was sufficient to prove guilt implies that the criterion used was whether the remaining evidence was sufficient as a matter of law to support the finding. Legal sufficiency of the evidence is not the test for harmless error even if only a nonconstitutional error is involved. The harmlessness of an error depends upon its impact on the trier and the result, not upon whether the particular evidence involved was legally essential to support the finding.

Applying the constitutional standard, I would find the evidence, absent the testimony of the witness who asserted her psychiatric privilege, to be so overwhelming as to render the error harmless beyond a reasonable doubt. The physical evidence, the tapes and the recording equipment clearly established the substance of the crimes, and other witnesses provided more than ample evidence of the defendant’s involvement in those crimes, including his own admissions. The testimony that should have been stricken was of some significance in explaining the defendant’s motivation, but was otherwise merely repetitious of facts amply proved by physical exhibits or by other witnesses. The defendant was acquitted of the one charge upon which the testimony of this witness was of great significance, the theft of her jewelry.

Accordingly, I agree with the result.

       The defendant’s request to this court for certification was in the form of two statements and reads as follows: “The petitioner was denied his sixth amendment right to confront and to conduct an effective cross-examination of the state’s primary witness against him as guaranteed by the sixth amendment to the United States constitution in that the witness’ psychiatric records were not made available to his counsel and the trial court refused to make an in camera inspection of the subpoenaed records. The Appellate Court applied a ‘harmless error test’ in the violation of his basic constitutional right to confront witnesses, which right goes to the integrity of the fact finding process of determining guilt or innocence in violation of the guidelines set forth in State v. Truppi, 182 Conn. 449 [438 A.2d 712 (1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981)].”

       Because we agree with the analysis and the decision of the Appellate Court, we decline to consider the alternate grounds for affirmance contained in the preliminary statement of issues filed by the state pursuant to Practice Book § 3012 (a). Thus, for the purposes of this appeal, we accept the Appellate Court’s finding that the defendant made a sufficient showing under State v. Esposito, 192 Conn. 166, 179, 471 A.2d 949 (1984), “that the failure to produce the [witness’ psychiatric] records was likely to impair the defendant’s right to confront the witness against him.” State v. Bruno, 1 Conn. App. 384, 395, 473 A.2d 311 (1984). We likewise need not review the Appellate Court’s determination that “the evidence offered by the state, even without the testimony of the witness, was sufficient to prove the defendant’s guilt beyond a reasonable doubt”; id.; because the defendant has not challenged this finding in the present appeal to this court. See State v. Torrence, 196 Conn. 430, 434, 493 A.2d 865 (1985). 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 has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he has the right to be tried by a jury or a judge and that at that trial he has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.”


author: Callahan, J.

text:
    State of Connecticut v. Jose Lopez
    (12274)
    Peters, C. J., Healey, Shea, Santaniello and Callahan, Js.

      Argued May 1
    decision released September 3, 1985

      Daniel V. Presnick, for the appellant (defendant).

      John A. Connelly, state’s attorney, with whom, on the brief, was Catherine J. Capuano, deputy assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant, Jose Lopez, pleaded guilty to a charge of murder, in violation of General Statutes § 53a-54a, on April 18,1983. Before accepting the defendant’s plea, the trial court did a searching canvass, concluded that there was a factual basis for the charge and that the plea was voluntary. Subsequent to the plea, but prior to sentencing, the defendant retained other counsel and filed a motion to withdraw his guilty plea. The motion was based on a claim that “[t]he plea was involuntary, or was entered without knowledge of the nature of the charge,” and that it “resulted from the denial of effective assistance of counsel.” The trial court denied the motion to withdraw the plea after an extensive hearing and imposed a sentence of twenty-five years imprisonment. The defendant appeals, claiming that the trial court erred in: (1) finding that the defendant’s guilty plea was knowing, intelligent and voluntary and made with the effective assistance of counsel; (2) considering the strength of the state’s case and the probable outcome of a trial in its decision as to whether the defendant was denied the effective assistance of counsel; (3) failing adequately to inform the defendant of the nature of the charge against him and of his right against self-incrimination prior to accepting his guilty plea; (4) becoming an active participant in the plea bargaining process by allegedly holding a “secret pretrial conference” from which the defendant and the public were unconstitutionally excluded; (5) refusing to dismiss the charges for lack of a probable cause hearing; (6) denying the defendant’s motion to disqualify the court on sentencing; (7) ruling that it lacked the authority to suspend a portion of the sentence; and (8) denying his motion for a waiver of fees, costs and expenses. The defendant also challenges the plea bargaining procedure on constitutional grounds.

The underlying facts of the crime leading to the defendant’s guilty plea are as follows: On August 28, 1982, the defendant attended a birthday party for his daughter, held at the home of the child’s mother in Waterbury. During the party, an argument occurred in which both the defendant and Juan Ortiz, the new boyfriend of the mother of the defendant’s child, became involved. The defendant left the party and drove to his apartment, where he retrieved a shotgun and a box of shotgun shells. He returned to the party and confronted Juan Ortiz. The two men fought, and the defendant fired his gun, intending to hit Ortiz, but instead fatally shooting Sergio Torrez, who was standing nearby. The defendant fled from the house, and was apprehended by the police en route to Hartford later that night. The following morning, August 29, 1982, the defendant, having been fully advised of his Miranda rights, gave a signed statement to the Waterbury police recounting the events of the previous night.

On October 5, 1982, the defendant was indicted for the crime of murder, in violation of General Statutes § 53a-54a. The defendant retained counsel and initially entered a plea of not guilty. On April 18, 1983, after assurances from the state that the minimum sentence would be recommended, the defendant withdrew his original plea and entered a plea of guilty to the charged offense. The trial court conducted “a typical searching canvass which included a detailed description of the nature of the charge” and, after finding “that there was a factual basis for the charge and that the plea was voluntary,” accepted the defendant’s guilty plea.

On May 20,1983, the date on which sentencing was scheduled to take place, the defendant appeared with new counsel and filed a motion to withdraw his guilty plea, claiming that “[t]he plea was involuntary, or was entered without knowledge of the nature of the charge,” and that it “resulted from the denial of effective assistance of counsel.” After an evidentiary hearing, the trial court denied the defendant’s motion to withdraw his guilty plea and sentenced him to twenty-five years imprisonment.

I

The defendant’s primary claim on appeal is that the trial court erred in accepting his guilty plea and in denying his motion to withdraw that plea. He claims that the plea was involuntary, entered without knowledge of the nature of the charge against him and resulted from ineffective assistance of counsel.

A guilty plea that is not both voluntary and knowing is in violation of due process and thus void. McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969); State v. Marra, 174 Conn. 338, 340, 387 A.2d 550 (1978); State v. Battle, 170 Conn. 469, 473, 365 A.2d 1100 (1976). For a guilty plea to be truly voluntary, the defendant must understand the law in relation to the facts. McCarthy v. United States, supra, 466. Because a defendant waives several constitutional rights when he elects to plead guilty to a criminal offense, the choice of a guilty plea is of profound significance. Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); State v. Childree, 189 Conn. 114, 120, 454 A.2d 1274 (1983). In pleading guilty, a defendant waives his privilege against compulsory self-incrimination, his right to trial by jury and his right to confront his accusers. Practice Book § 711 (5); Boykin v. Alabama, supra; McCarthy v. United States, supra; State v. Childree, supra. A guilty plea is therefore constitutionally valid only if the record affirmatively discloses that the plea was entered voluntarily and intelligently. Boykin v. Alabama, supra, 242; State v. Marra, supra; Blue v. Robinson, 173 Conn. 360, 373, 377 A.2d 1108 (1977).

A

The defendant first claims that his guilty plea resulted from the denial of the effective assistance of counsel. Specifically, he asserts that his counsel should have questioned him about his intent at the time of the crime and should have informed him of the possibility of conviction of the lesser included offense of manslaughter if he lacked the requisite intent for murder. The defendant maintains that his counsel’s failure so to question and inform him resulted in a plea which was not voluntary.

A defendant must satisfy two requirements in order to prevail on a claim that his guilty plea resulted from ineffective assistance of counsel. Myers v. Manson, 192 Conn. 383, 393, 472 A.2d 759 (1984). First, he must prove that the assistance was not “ ‘within the range of competence displayed by lawyers with ordinary training and skill in the criminal law’; State v. Clark, 170 Conn. 273, 283, 365 A.2d 1167, cert. denied, 425 U.S. 962, 96 S. Ct. 1748, 48 L. Ed. 2d 208 (1976), quoting Gentry v. Warden, 167 Conn. 639, 646, 356 A.2d 902 (1975) . . . .” Myers v. Manson, supra, 393. 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. Dukes v. Warden, 161 Conn. 337, 344, 288 A.2d 58 (1971), aff’d, 406 U.S. 250, 92 S. Ct. 1551, 32 L. Ed. 2d 45, reh. denied, 407 U.S. 934, 92 S. Ct. 2464, 32 L. Ed. 2d 817 (1972).’ ” Myers v. Manson, supra, 393-94.

In the present case, the defendant is unable to meet even the first of these two requirements. The record indicates that the defendant’s original attorney adequately investigated the case and informed the defendant of the charge against him and the likelihood of a murder conviction. At the hearing on his motion to withdraw his guilty plea, the defendant admitted that his counsel had told him of the possibility of conviction of manslaughter in some degree, but that “the probability of such a disposition was highly unlikely.”

It is within the range of reasonably competent counsel for an attorney to advise his client to plead guilty even though defenses may conceivably exist. Parker v. North Carolina, 397 U.S. 790, 797-98, 90 S. Ct. 1458, 25 L. Ed. 2d 785 (1970); McMann v. Richardson, 397 U.S. 759, 770, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970); Jones v. Estelle, 584 F.2d 687 (5th Cir. 1978); Herring v. Estelle, 491 F.2d 125, 128 (5th Cir. 1974). Here, the defendant had signed a voluntary statement that he had left the party in anger, driven to his home, retrieved a gun and ammunition, and returned to the party where he fired the shot that killed the victim. It was thus highly unlikely in this case that the defendant could successfully claim a lack of intent to reduce his conviction from murder to manslaughter. Based on this record, the advice which the defendant received was well within the range of competence required of attorneys representing clients in criminal cases.

B

The defendant claims that the trial court, in denying his motion to withdraw his guilty plea, should not have considered the strength of the state’s case and the probable outcome were the case to go to trial. In his brief, he characterizes the court’s ruling as improperly resting on “[t]he court’s opinion [as to] the guilt or innocence of [the] accused.” This characterization, however, is inaccurate. The defendant’s motion to withdraw his plea was largely premised on his assertion that the plea resulted from the ineffective assistance of counsel. As on appeal, the defendant’s claim on the motion to withdraw was essentially that he had not been adequately informed of the possibility of a manslaughter conviction. In evaluating this claim, the trial court properly examined the strength of the state’s case against the defendant in order to determine whether the defendant’s counsel had acted competently in advising him to plead guilty. McMann v. Richardson, supra, 770-71; Myers v. Manson, supra, 394. The court reviewed the defendant’s voluntary statement to the police, as well as the probable testimony of a number of eyewitnesses, and found that “there was overwhelming evidence as to every element of murder and nothing whatsoever to support any claim of extreme emotional disturbance.” This finding was not, as the defendant contends, an expression of the court’s opinion as to the defendant’s guilt or innocence. Rather, it reflected the court’s assessment of the likely outcome of trial, which was necessary to evaluate the defendant’s claim of ineffective assistance of counsel. The trial court’s analysis and ruling were entirely proper in the context of the defendant’s claim.

II

The defendant next asserts that the trial court, in accepting his guilty plea, failed adequately to inform him of the nature of the charge against him, as required by Practice Book § 711 (l). In support of this claim, he alleges that the court did not instruct him on the mens rea element of murder, and challenges the court’s explanations regarding the state’s burden of proof and the affirmative defense of extreme emotional disturbance.

Practice Book § 711 was designed to ensure that guilty pleas are made voluntarily and with full knowledge of the waiver of specific constitutional rights. State v. Suggs, 194 Conn. 223, 226, 478 A.2d 1008 (1984); State v. Godek, 182 Conn. 353, 357, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981). The record in this case establishes that the canvass by the trial court, prior to the acceptance of the defendant’s guilty plea, met the requirements of Practice Book § 711. The defendant was correctly informed that “the State is held to a very, very high standard of proof. Any reasonable doubt must be resolved in your favor.” Thereafter, the court quoted the statutory definition of murder contained in General Statutes § 53a-54a, and explained its meaning to the defendant. Included in the court’s explanation was the intent element of the offense, followed by a discussion of the affirmative defense of extreme emotional disturbance. The court then proceeded to inform the defendant of the possible sentences for the offense charged, and the effect of a guilty plea, as opposed to a conviction after trial, with regard to his sentence. At that point, the court asked the defendant, “Do you understand?” and the defendant responded in the affirmative.

“ ‘[W]here there has been a substantial compliance with [§ 711], such that none of the defendant’s constitutionally protected rights has been infringed upon, the failure to comply with each and every requirement of [§ 711] does not automatically require the vacating of the defendant’s plea.’ State v. Godek, supra, 360.” State v. Suggs, supra, 227. Under the circumstances of this case, the trial court’s explanations to the defendant regarding the charged offense of murder, the affirmative defense of extreme emotional disturbance and the state’s burden of proof were entirely adequate to ensure that the defendant fully understood the nature of the charge to which the plea was offered, in accordance with Practice Book § 711 (1).

The defendant also claims that the trial court, prior to accepting his guilty plea, failed to inform him of his right not to be compelled to incriminate himself, as required by Practice Book § 711 (5). The record does not support this claim. After informing the defendant of his right to be tried by a jury or a three-judge panel, the presumption of innocence and the state’s burden of proof, and his right to confront the witnesses against him, the trial court stated: “Because you are entitled to the presumption of innocence, it would not be necessary for you to put [on] a defense. If your decision was not to put [on] a defense, that could not be held against you. . . . If you did decide to put [on] a defense . . . you would have the right to make a further decision as to whether or not you yourself would take the stand, and if your decision was not to take the stand, again that cannot be held against you.” The court then asked, “Do you realize you’re waiving all those rights by offering me this plea of guilty?” to which the defendant replied, “Yes.”

Although the court did not specifically tell the defendant that he had “the right not to be compelled to incriminate himself,” the substance of that right was adequately conveyed. In State v. Suggs, supra, 226-28, we considered a defendant’s challenge to the voluntariness of his guilty plea on similar grounds. There, the defendant complained that “the trial court’s questions of the defendant whether he was waiving his ‘right to face your accuser here in the courtroom’ were insufficient to advise [him] of his right to confront and cross-examine witnesses.” Id., 227. We rejected his claim, noting that “a defendant unsophisticated in the law might be better informed of the right to confront witnesses by the use of the more commonly understood term, ‘face.’ ” (Footnote omitted.) Id., 228. Similarly, in this case, the trial court, in explaining to the defendant that he would not have to present a defense or take the stand at trial, and that any decision in that regard would not be held against him, may better have conveyed to the defendant the meaning of the right not to incriminate himself than had it used the exact terminology contained in Practice Book § 711 (5).

Ill

In his brief, the defendant asserts that the trial court improperly became an active participant in the plea bargaining process. In support of this claim he alleges that the court “unilaterally and in secret made an offer” in a “secret pretrial conference between the court, the State’s Attorney and [defense counsel],” which the defendant was not permitted to attend.

It is fundamental that the party who claims such an error has the burden of establishing its occurrence. State v. Fullwood, 194 Conn. 573, 581, 484 A.2d 435 (1984); State v. Nash, 149 Conn. 655, 658-59, 183 A.2d 275, cert. denied, 371 U.S. 868, 83 S. Ct. 130, 9 L. Ed. 2d 104 (1962). In the present case, the defendant has not substantiated his claim of improper participation by the trial court in the plea negotiations. There is nothing in the record to indicate that the defendant was in any way coerced or that his decision to plead guilty was not made of his own free will. Rather, the record demonstrates that the defendant’s guilty plea was made knowingly and that he was fully aware of all the consequences of his plea.

Prior to accepting the plea, the court asked the defendant, “Was there any threat made to you to cause you to decide to plead guilty?” The defendant responded, “No, sir.” The court further inquired, “I don’t mean by this, do you like it. We all know you don’t. But was your decision to plead guilty made of your own free will?” The defendant replied, “Yes, sir.” Thus, the record does not support a claim that the defendant did not approve of the negotiated plea, or that the court in any way pressured the defendant into pleading guilty.

The defendant also contends that under our state and federal constitutions, both he and the public had a right to be present at the “secret pretrial conference.” The single authority cited by the defendant in support of his claim, however, establishes only that the public has the right to be present at a trial. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980). In this case, however, there was no trial because the defendant elected to plead guilty. Although there may have been a disposition conference from which the defendant was excluded, under our established rules of practice neither the defendant nor the public is entitled to attend such a proceeding. In fact, under Practice Book §§ 687 and 688, the prosecutor is not permitted to engage in plea negotiations directly with a defendant who is represented by counsel, except with defense counsel’s permission. See also Practice Book § 704. Furthermore, Practice Book § 967 does not include the disposition conference or plea negotiations among the specifically enumerated situations where a criminal defendant has the right to be present. Since the defendant does not challenge the constitutionality of these rules of practice, we need not further consider this claim.

IV

In a related claim, the defendant appears to argue that the plea bargaining was improper because it discouraged the exercise of his constitutional right to plead not guilty and to demand a trial by jury. The defendant’s claim is without merit. Both federal and state cases have clearly established that plea bargaining is both desirable and constitutional. Corbitt v. New Jersey, 439 U.S. 212, 219, 99 S. Ct. 492, 58 L. Ed. 2d 466 (1978); Bordenkircher v. Hayes, 434 U.S. 357, 361-62, 98 S. Ct. 663, 54 L. Ed. 2d 604, reh. denied, 435 U.S. 918, 98 S. Ct. 1477, 55 L. Ed. 2d 511 (1978); Staton v. Warden, 175 Conn. 328, 331-33, 398 A.2d 1176 (1978). A guilty plea should not be considered involuntary solely because it is the result of plea bargaining. “It is . . . well settled that plea agreements are consistent with the requirements of voluntariness and intelligence — because each side may obtain advantages when a guilty plea is exchanged for sentencing concessions, the agreement is no less voluntary than any other bargained-for exchange.” Mabry v. Johnson, 467 U.S. 504, 508, 104 S. Ct. 2543, 81 L. Ed. 2d 437 (1984). Since, as previously discussed, the defendant’s guilty plea was entirely voluntary, his right to plead not guilty was not abridged simply by virtue of the fact that his guilty plea grew out of a plea bargaining arrangement.

The defendant’s assertion that the plea bargaining impermissibly infringed on his constitutional right to demand a trial by jury is likewise untenable. “While confronting a defendant with the risk of more severe punishment clearly may have a ‘discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices [is] an inevitable’ — and permissible — ‘attribute of any legitimate system which tolerates and encourages the negotiation of pleas.’ ” Bordenkircher v. Hayes, supra, 364, quoting Chaffin v. Stynchcombe, 412 U.S. 17, 31, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973). Prior to accepting the defendant’s plea, the court specifically informed him that in pleading guilty he was waiving his right to a jury trial, and elaborated on the repercussions of his decision to forego this right. The defendant indicated that he realized he was waiving his right to be tried by offering to plead guilty, and nevertheless proceeded to enter a guilty plea. The defendant’s knowing and voluntary waiver of his right to a jury trial precludes his present claim that the plea negotiations deprived him of that right.

Y

The defendant next claims that because this case was pending when article first, § 8, of the Connecticut constitution was amended to require a probable cause hearing for those charged with a crime punishable by death or life imprisonment, the trial court should have granted his motion to dismiss the indictment filed against him and held a probable cause hearing. The defendant argues that while a dismissal of the indictment would not have prevented the state from refiling the charges, it would have vacated his guilty plea. This court has previously considered and decided this issue adverse to the defendant’s position. In State v. Sanabria, 192 Conn. 671, 474 A.2d 760 (1984), we held that although the amendment to article first, § 8, was adopted on November 24, 1982, no defendant who was indicted by a grand jury before the passage of legislation implementing the amendment on May 20, 1983, was entitled to a further pretrial finding of probable cause. Id., 680.

In the present case, the defendant was indicted by a grand jury for the crime of murder on October 5, 1982. Thus, although his case was pending at the time the amendment was adopted on November 24, 1982, the defendant was indicted prior to that date and therefore was not entitled to a probable cause hearing.

VI

Prior to sentencing, the defendant filed a motion asking that the trial court determine its authority to “suspend a portion of the minimum sentence as defined under [General Statutes] § 53a-35a.” In response, the court ruled that it did not have the authority to suspend a portion of the minimum twenty-five year sentence for murder. On appeal, the defendant claims error in this ruling, maintaining that the trial court had “the inherent equitable powers to suspend a portion of said minimum sentence.” The defendant further argues that a mandatory minimum sentence of twenty-five years which could not be suspended or reduced would constitute cruel and unusual punishment. We disagree.

The legislature has the authority to impose a mandatory minimum sentence for a specific crime. State v. Darden, 171 Conn. 677, 680, 372 A.2d 99 (1976). A trial court’s power to impose a particular sentence is defined by statute, and the constitution does not require that the judiciary be given discretion in sentencing. Id.

The defendant appears to argue that it is unclear whether the legislature intended murder to have a minimum sentence of twenty-five years without suspension. A brief review of our statutory sentencing provisions demonstrates that his argument is without merit. General Statutes § 53a-28 requires that a period of probation or conditional discharge be imposed upon the entire or partial suspension of a sentence. General Statutes § 53a-29 prohibits the imposition of a period of probation or conditional discharge for a class A felony. Under General Statutes § 53a-35a, murder is defined as a class A felony requiring a mandatory minimum sentence of twenty-five years imprisonment. Thus the trial court was correct in its determination that it lacked the authority to suspend a portion of the minimum twenty-five year sentence.

With regard to the defendant’s assertion that a mandatory minimum sentence of twenty-five years imprisonment, without suspension, constitutes cruel and unusual punishment under the eighth amendment to the federal constitution, we need only refer to our recent decision in State v. Dupree, 196 Conn. 655, 665-66, 495 A.2d 691 (1985), where we rejected a similar challenge to the penalty provision of our arson murder statute. As we held in Dupree, we cannot conclude that this defendant’s sentence “was grossly disproportionate to the nature of the offense involved in this case.” Id., 666.

VII

The defendant next claims that the trial court erred in denying his motion to disqualify the court on sentencing. At the hearing on the motion to disqualify, the defendant argued that because his motion to withdraw his guilty plea was partially based on a claim of ineffective assistance of counsel, his attorney-client privilege had been waived and the court consequently heard “testimony which was basically privileged in nature” and that it was thus “inappropriate ... for the court to . . . act as a sentencing judge.” The defendant wished to be sentenced by a judge who had not heard the privileged testimony. The defendant expressed his intention to request that the sentencing judge suspend the twenty-five year sentence negotiated in the plea bargaining process after the defendant had served ten years.

The trial court denied the defendant’s motion to disqualify, stating: “I don’t see how there can possibly be any prejudice to [the defendant] if I impose the minimum [sentence] . . . that is the least that any other judge could do. If I were to decide that something more than the minimum [sentence] was appropriate, I have already made it clear [that] I would give him the opportunity to withdraw his plea of guilty and stand trial.”

As previously discussed, neither the court that sentenced the defendant, nor any other court, would have been authorized to suspend any portion of the defendant’s mandatory minimum twenty-five year sentence for murder. See General Statutes §§ 53a-28, 53a-29 and 53a-35a. The trial court was therefore entirely correct in concluding that, since the defendant could not receive any sentence lesser than that which the court intended to impose, he could in no way be prejudiced by any privileged statements heard by the court incident to his motion to withdraw his guilty plea. The motion to disqualify the trial court on sentencing was thus properly denied.

yin

Finally, the defendant claims error in the trial court’s denial of his motion for a waiver of fees, costs, surety and expenses “so that he may file an appeal to the Supreme Court.” The trial court based its denial of the defendant’s motion on the fact that the defendant had retained a private attorney. We decline to decide whether or not the trial court’s ruling on this motion was correct. On August 22, 1983, the defendant filed in this court a motion to compel the state to pay his fees and expenses, which we remanded for an indigency hearing in the trial court. The trial court never ruled on the motion, and the defendant withdrew it on December 27,1984. By withdrawing his motion without ever having made a sufficient showing of indigency in the trial court, the defendant abandoned his claim for a waiver of fees and expenses.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-54a. murder defined, affirmative DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person.
      “(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony.”

       “[Practice Book] Sec. 711.--advice to defendant
      “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he 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

       The court’s explanations to the defendant regarding the charged offense, the potentially applicable affirmative defense and the consequences of his decision to plead guilty were as follows:
      “Now, when you’re offering this plea — it is to a crime of murder. I’ll read the statute. A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or a third person. In other words, the State would have to prove that you caused the death of this victim and that you intended to kill someone, not necessarily the person who was actually killed.
      “I want to point out to you what is called an affirmative defense. That you acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from your viewpoint in the situation which existed or as you reasonably believe them [sic] to be. If you were able to prove such extreme emotional disturbance, that would not mean that you would get off scot-free; it would mean that the charge would be reduced to what’s called manslaughter in the first degree, the punishment of which is somewhat less than murder. I want to point out to you that on the charge of murder the minimum sentence under the statute is twenty-five years, the maximum is life, which is defined by the statute as being sixty years. In other words, if you were to go on trial and you were to be convicted, you could get anywhere from twenty-five years as a minimum to life which means sixty years as a maximum. I want you to understand this. I have already made a representation to your attorney, and I believe he has informed you of it, that my present intention is, at the time of sentencing, that I would impose the minimum sentence of twenty-five years in return for you having offered a plea of guilty. I did point out to your attorney that in the event the presentence investigation is very derogatory, I might feel that twenty-five years is insufficient, but in the event that that is my conclusion, at the time of sentencing I will offer you the opportunity to withdraw your plea of guilty and stand trial. On the other hand, if I do accept your plea of guilty today, and after review of the presentence investigation report, I feel at the time of sentencing that twenty-five years is appropriate, the minimum sentence, then, sir, you could not later change your mind and withdraw your plea of guilty without my permission which I do not have to give you.”

       See footnote 2, supra.

       “[Practice Book] Sec. 687. —in general
      “The prosecuting authority and counsel for the defendant, or the defendant when he is not represented by counsel, may engage in discussions at any time with a view towards disposition. Negotiations may occur either prior to or after the arraignment. The prosecuting authority shall be in his office at reasonable times for the purpose of giving to counsel for the defendant, and to all others in interest, a reasonable opportunity for consultation with him.”
      “[Practice Book] Sec. 688. —discussions with defendant
      “The prosecuting authority shall not engage in plea discussions at the disposition conference, or at other times, directly with a defendant who is represented by counsel, except with his counsel’s approval. If the defendant refuses to be represented by counsel or waives his right under Sec. 961, the prosecuting authority may properly discuss disposition of the charges directly with the defendant.”

       “[Practice Book] Sec. 967. —right of presence
      “The defendant has the right to be present at the arraignment, at the time of the plea, at evidentiary hearings, at the trial, and at the sentencing hearing, except as provided in Sec. 966. Whenever present, the defendant shall be seated where he can effectively consult with his counsel and can see and hear the proceedings. An incarcerated defendant or an incarcerated witness shall not be required during the course of a trial to appear in court in the distinctive attire of a prisoner or convict.”

       On October 5, 1982, when the defendant was indicted, article first, § 8, of the Connecticut constitution read as follows:
      “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless on a presentment or an indictment of a grand jury, except in the armed forces, or in the militia when in actual service in time of war or public danger.”
      On November 24, 1982, the secretary of the state certified that an amendment to that provision had been approved by the electorate at the general election of November 2, 1982. State v. Sanabria, 192 Conn. 671, 676, 474 A.2d 760 (1984). Article first, § 8, as amended, currently provides:
      “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law, except in the armed forces, or in the militia when in actual service in time of war or public danger.”

       “[General Statutes] Sec. 53a-28. authorized sentences, (a) Except as provided in chapter 368p, to the extent that such chapter is inconsistent herewith, every person convicted of an offense shall be sentenced in accordance with this title.
      “(b) Except as provided in sections 53a-45, 53a-46a, 53a-54b and 53a-92, when a person is convicted of an offense, the court shall impose one of the following sentences: (1) A term of imprisonment; or (2) a sentence authorized by sections 18-65a or 18-73; or (3) a fine; or (4) a term of imprisonment and a fine; or (5) a term of imprisonment, with the execution of such sentence of imprisonment suspended, entirely or after a period set by the court, and a period of probation or a period of conditional discharge; or (6) a term of imprisonment, with the execution of such sentence of imprisonment suspended, entirely or after a period set by the court, and a fine and a period of probation, or a period of conditional discharge; or (7) a fine and a sentence authorized by section 18-65 or 18-73; or (8) a sentence of unconditional discharge.
      “(c) A sentence to a period of probation or conditional discharge in accordance with sections 53a-29 to 53a-34, inclusive, shall be deemed a revocable disposition, in that such sentence shall be tentative to the extent that it may be altered or revoked in accordance with said sections but for all other purposes it shall be deemed to be a final judgment of conviction.”

       “[General Statutes] Sec. 53a-29. probation and conditional discharge: criteria periods, (a) The court may sentence a person to a period of probation upon conviction of any crime, other than a class A felony, if it is of the opinion that: (1) Present or extended institutional confinement of the defendant is not necessary for the protection of the public; (2) the defendant is in need of guidance, training or assistance which, in his case, can be effectively administered through probation supervision; and (3) such disposition is not inconsistent with the ends of justice.
      “(b) The court may impose a sentence of conditional discharge for an offense, other than a class A felony, if it is of the opinion that: (1) Present or extended institutional confinement of the defendant is not necessary for the protection of the public; and (2) probation supervision is not appropriate.
      “(c) When the court imposes a sentence of conditional discharge the defendant shall be released with respect to the conviction for which the sentence is imposed but shall be subject, during the period of such conditional discharge, to such conditions as the court may determine. The court shall impose the period of conditional discharge authorized by subsection (d) and shall specify, in accordance with section 53a-30, the conditions to be complied with. When a person is sentenced to a period of probation the court shall impose the period authorized by subsection (d) and may impose any conditions authorized by said section 53a-30. When a person is sen-fenced to a period of probation, he shall be placed under the supervision of the commission on adult probation.
      “(d) The period of probation or conditional discharge, unless terminated sooner as hereinafter provided, shall be as follows: (1) For a felony, not more than five years; (2) for a class A misdemeanor, not more than three years; (3) for a class B misdemeanor, not more than two years; (4) for a class C misdemeanor, not more than one year; and (5) for an unclassified misdemeanor, not more than one year if the authorized sentence of imprisonment is less than three months, or not more than two years if the authorized sentence of imprisonment is in excess of three months, or where the defendant is charged with failure to provide subsistence for dependents, a determinate or indeterminate period.”

       “[General Statutes] Sec. 53a-35a. imprisonment for any felony committed ON OR AFTER JULY 1, 1981: DEFINITE SENTENCES; TERMS AUTHORIZED. For any felony committed on or after July 1, 1981, the sentence of imprisonment shall be a definite sentence and the term shall be fixed by the court as follows: (1) For a capital felony, a term of life unless a sentence of death is imposed in accordance with section 53a-46a; (2) for the class A felony of murder, a term not less than twenty-five years nor more than life; (3) for a class A felony other than murder, a term not less than ten years nor more than twenty-five years; (4) for a class B felony, a term not less than one year nor more than twenty years, except that for a conviction under section 53a-55a, 53a-59 (a) (1), 53a-59a, 53a-70a, 53a-94a, 53a-101 (a) (1) or 53a-134 (a) (2), the term shall be not less than five years nor more than twenty years; (5) for a class C felony, a term not less than one year nor more than ten years, except that for a conviction under section 53a-56a, the term shall be not less than three years nor more than ten years; (6) for a class D felony, a term not less than one year nor more than five years, except that for a conviction under section 53a-60b, the term shall be not less than two years nor more than five years, and for a conviction under section 53a-60c, the term shall be not less than three years nor more than five years; (7) for an unclassified felony, a term in accordance with the sentence specified in the section of the general statutes that defines the crime.”


author: Arthur H. Healey, J.

text:
    State of Connecticut v. Melvin Owen James
    (11866)
    Peters, C. J., Healey, Shea, Dannehy and Callahan, Js.
    Argued June 6
    decision released September 3, 1985

      G. Douglas Nash, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      William Domnarski, deputy assistant state’s attorney, with whom, on the brief, were Michael Sullivan and Carl Schuman, assistant state’s attorneys, for the appellee (state).
   Arthur H. Healey, J.

This appeal arises from the trial court’s denial of the defendant’s motion to withdraw his plea of guilty in this matter. We address the critical issue of whether, under our rules of practice, the failure of the trial court, prior to accepting the defendant’s plea, to advise him of the maximum possible sentence to which he would be exposed, constituted reversible error.

The salient facts are as follows. On February 11, 1981, the defendant was a passenger in a vehicle driven by Wesley Jackson. At approximately 2 p.m., police officers stopped the vehicle to check Jackson’s motor vehicle license. During the stop and ensuing investigation, the police found an unregistered .38 caliber revolver in the car. The defendant later admitted that the gun was in his possession and that the driver, Jackson, had had no knowledge of it. On July 14,1981, the defendant pleaded guilty under the Alford doctrine to a charge of carrying a weapon in a motor vehicle in violation of General Statutes § 29-38.

At the hearing during which the defendant entered his guilty plea, the trial court, Norcott, J., canvassed the defendant, who was represented by counsel, as to the nature of his plea. See Practice Book § 711. In response to the court’s inquiries, the defendant stated that his plea was voluntary and that he understood he was waiving his rights to a jury trial, to remain silent, and not to incriminate himself. Further, the defendant acknowledged that he was satisfied with the advice of his attorney, that he was pleading guilty under the Alford doctrine, and that he understood that the state was not recommending a sentence. The defendant also stated that he understood and agreed with the state’s version of the facts in this case. Before accepting the plea, however, the trial court did not inform the defendant of the maximum possible penalty for the offense to which he pleaded guilty, and it also failed to elicit expressly a waiver of his constitutional right to confront and cross-examine his accusers.

Thereafter, on September 22, 1982, the defendant, who had not yet been sentenced, appeared in court on a written motion to withdraw his guilty plea. As a ground for withdrawing the plea, the defense counsel cited the failure to comply with Practice Book § 711 and argued that the court had failed to inform the defendant of the maximum possible sentence for the offense. After a hearing, the trial court, Ckemauskas, J., denied the motion to withdraw the plea, stating that the defendant had been “made fully aware of everything involved here.” The defendant then took an exception. The trial court, Gray, J., sentenced the defendant on October 8, 1982, to imprisonment for a term of five years, suspended after three years, with five years of probation and a one thousand dollar fine.

On appeal, the defendant claims that the trial court erred in denying the motion to withdraw his plea in that the court failed in its canvass (1) to advise him of the maximum possible penalty for the offense to which he pleaded guilty, and (2) to elicit an express waiver from him of his federal constitutional right to confront and cross-examine his accusers. We agree with the defendant that it was reversible error to deny his motion to withdraw his plea.

“After a guilty plea is accepted but before the imposition of sentence the court is obligated [under Practice Book § 720] to permit withdrawal upon proof of one of the grounds in § 721.” State v. Torres, 182 Conn. 176, 185, 438 A.2d 46 (1980); see also State v. Lasher, 190 Conn. 259, 265, 460 A.2d 970 (1983); State v. Deboben, 187 Conn. 469, 474, 446 A.2d 828 (1982). One of these grounds is that “[t]he plea was accepted without substantial compliance with Sec. 711.” Practice Book § 721 (1); see generally State v. Godek, 182 Conn. 353, 357, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981). The question here is whether the trial court’s failure to inform the defendant of the maximum possible sentence to which his plea exposed him fell below the standard that constitutes “substantial compliance” with §711.

Under our rules of practice, a trial judge must not accept a plea of guilty “without first addressing the defendant personally and determining that the plea is voluntarily made under Practice Book § 712 and that the defendant fully understands the items enumerated in Practice Book § 711.” (Citations omitted.) State v. Martin, 197 Conn. 17, 23, 495 A.2d 1028 (1985). “Practice Book § 711 was promulgated to ensure that such guilty pleas are made voluntarily and with full knowledge of the waiver of constitutional rights.” State v. Suggs, 194 Conn. 223, 226, 478 A.2d 1008 (1984). In pertinent part Practice Book § 711 requires that “[t]he judicial authority shall not accept the plea without first addressing the defendant personally and determining that he fully understands . . . (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 . . . .” See also State v. Godek, supra.

The state does not dispute the defendant’s contention that the trial court failed to comply with subsection 4 of Practice Book § 711 in that the defendant was not informed of the maximum possible penalty for the crime charged. Rather, the state argues that, because the right to be informed of the maximum possible penalty for the crime charged is of nonconstitutional dimension, to constitute reversible error the defendant must demonstrate that he would have pleaded differently had the court fully complied with Practice Book § 711. We do not agree.

We have stated that Practice Book § 711 (4) is an express recognition “[t]hat the defendant’s awareness of the maximum sentence possible is an essential factor in determining whether to plead guilty . . . . ” (Emphasis added.) State v. Childree, 189 Conn. 114, 126, 454 A.2d 1274 (1983). “The length of time a defendant may have to spend in prison is clearly crucial to a decision of whether or not to plead guilty.” (Emphasis added.) State v. Collins, 176 Conn. 7, 9-10, 404 A.2d 871 (1978). Accordingly, Practice Book § 711 (4) “require[s] that the court determine that the defendant ‘fully understands’ those consequences.” (Emphasis added.) D’Amico v. Manson, 193 Conn. 144, 155 n.9, 476 A.2d 543 (1984); see State v. Anonymous (1980-9), 36 Conn. Sup. 578, 580, 421 A.2d 557 (1980).

“The rules of statutory construction apply with equal force to Practice Book rules. State v. Cook, 183 Conn. 520, 521, 441 A.2d 41 (1981). ‘Where the meaning of a statute [or rule] is plain and unambiguous, the enactment speaks for itself and there is no occasion to construe it.’ ” Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984), quoting Connecticut State Board of Labor Relations v. Board of Education, 177 Conn. 68, 73, 411 A.2d 28 (1979). The requirements of the rule are clear. We do not mandate that a trial court, in making the determinations required by § 711, speak in the very words of that rule because “[m]atters of reality, and not mere ritual, should be controlling.” McCarthy v. United States, 394 U.S. 459, 467-68 n.20, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969), quoting Kennedy v. United States, 397 F.2d 16, 17 (6th Cir. 1968). In discharging its obligations under § 711, the court’s inquiries need not be so restricted that “the [j]udge [must] mount the bench with a script in his hand”; Sappington v. United States, 468 F.2d 1378, 1380 (8th Cir. 1972); and although “not a script, perhaps, but [with] some sort of checklist, as a prompter, so that whatever form the dialogue takes, all of the necessary lines will be delivered.” United States v. Fels, 599 F.2d 142, 149 n.6 (7th Cir. 1979). Unfortunately, all the “necessary lines” required by § 711 were not delivered so as to make for conformity with the rule. It matters not that § 711 incorporates nonconstitutional as well as constitutional rights; the rule requires both be addressed. There was not on this record, as the state suggests, substantial compliance with § 711 because of the trial court’s failure to address § 711 (4) at all.

In the present case, the record clearly discloses that the trial court accepted the defendant’s plea without first determining that the defendant was aware of and understood the maximum possible sentence to which he was exposed. The plea was therefore accepted in contravention of Practice Book § 711 (4); see State v. Eason, 192 Conn. 37, 45, 470 A.2d 688 (1984); the requirements of which we have previously recognized as both “clearly crucial”; State v. Collins, supra; and “an essential factor”; State v. Childree, supra; to an accused’s grave decision whether to plead guilty to any charged offense. In addition, there is nothing in the record to indicate that the defendant had actual knowledge of the maximum possible consequences of his plea. See D’Amico v. Manson, supra; see also United States v. Hamilton, 568 F.2d 1302, 1306 (9th Cir.), cert. denied, 436 U.S. 944, 98 S. Ct. 2846, 56 L. Ed. 2d 785 (1978); Bond, Plea Bargaining and Guilty Pleas (2d Ed. 1982) § 3.5 (b). The record, thus, in addition to disclosing the lack of any inquiry concerning the maximum possible sentence, is barren of any indication that this defendant was aware of, much less fully understood; see D'Amico v. Manson, supra; State v. Anonymous (1980-9), supra; the maximum potential punishment to which his plea exposed him.

To satisfy the requisites of Practice Book § 711 it is necessary to demonstrate on the record that a plea is entered with the defendant’s full understanding. If he did not fully understand the consequences of his plea, then grave questions arise pertaining to the voluntary nature of the plea and consequently its constitutional validity. Courts have so held where a defendant’s awareness of the punishment or consequences is not evident from the record when the plea is taken. See, e.g., State v. Cutler, 121 Ariz. 328, 590 P.2d 444 (1979); Commonwealth v. Kulp, 476 Pa. 358, 382 A.2d 1209 (1978); In re Vensel, 88 Wash. 2d 552, 564 P.2d 326 (1977). A guilty plea must be voluntary in every respect. It differs in purpose and effect from an extrajudicial confession or admission because the plea by itself is a conviction and is the equivalent of a jury verdict of guilty. Machibroda v. United States, 368 U.S. 487, 82 S. Ct. 510, 7 L. Ed. 2d 473 (1962); State v. Battle, 170 Conn. 469, 365 A.2d 1100 (1976); State v. Linsner, 105 Ariz. 488, 467 P.2d 238 (1970).

In this case, then, the lack of substantial compliance with § 711 inheres in the trial court’s failure to fulfill its duty as that rule requires. One court has said that “[t]he maximum possible sentence provided by law for conviction of the offense charged is the most ‘important consequence of the plea.’ ” Wells v. State, 396 A.2d 161, 162 (Del. 1978).

On these facts, therefore, we hold that the trial court’s failure to grant the defendant’s motion to withdraw his plea for lack of “substantial compliance” with § 711 was reversible error. It is therefore unnecessary for us to address the defendant’s other claim of error.

There is error, the judgment is set aside and the case is remanded with direction to permit the defendant to withdraw his plea.

In this opinion the other judges concurred.

The more recent better reasoned opinions recognize, however, that a trial court’s failure to inform the defendant prior to plea of the maximum possible sentence constitutes valid grounds for withdrawal of that plea. See, e.g., United States v. Palter, 575 F.2d 1050 (2d Cir. 1978); Carter v. State, 291 Ala. 83, 277 So. 2d 896 (1973); Pratte v. State, 448 So. 2d 502 (Ala. Crim. App. 1984); Wells v. State, 396 A.2d 161 (Del. 1978); Avery v. State, 463 N.E.2d 1088 (Ind. 1984); Commonwealth v. Kulp, 476 Pa. 358, 382 A.2d 1209 (1978); see also Commonwealth v. Fernandes, 390 Mass. 714, 459 N.E.2d 787 (1984); People v. Greene, 414 Mich. 896, 323 N.W.2d 4 (1982); State v. McMahon, 213 Neb. 897, 331 N.W.2d 818 (1983); State v. Martin, 94 Wash. 2d 1, 614 P.2d 164 (1980); State v. Barton, 93 Wash. 2d 301, 609 P.2d 1353 (1980). Some cases have been remanded for a hearing on whether the defendant actually knew of the maximum sentence possibilities. See, e.g., State v. Cutler, 121 Ariz. 328, 590 P.2d 444 (1979); State v. West, 326 N.W.2d 316 (Iowa 1982); State v. Fischer, 218 Neb. 678, 357 N.W.2d 477 (1984); State v. Curnyn, 202 Neb. 135, 274 N.W.2d 157 (1979); In re Vensel, 88 Wash. 2d 552, 564 P.2d 326 (1977). Of course, an on-the-record showing that the defendant has been informed of the potential maximum sentence vitiates a challenge on these grounds. See Durbin v. State, 56 Md. App. 442, 446, 468 A.2d 145 (1983); State v. Clark, 217 Neb. 417, 422, 350 N.W.2d 521 (1984); In re Hall, 143 Vt. 590, 595, 469 A.2d 756 (1983). On the other hand, the court in one jurisdiction that seemed to denigrate claims of this nature, nevertheless, recognized that informing the defendant of the maximum potential sentence represents the better practice. See, e.g., State v. Trott, 338 N.W.2d 248, 253 (Minn. 1983); see generally Bond, Plea Bargaining and Guilty Pleas (2d Ed. 1982) § 3.5 (b).

Appendix

The following transpired when the court conducted the original plea canvass in this case:

“The Court: Mr. James, you have plead [sic] guilty to a felony and I am going to ask you a few questions.

“Have you discussed this plea with your attorney, Mr. Kaplan?

“Mr. James: Yes, I have.

“The Court: Are you satisfied with the advice he has given you?

“Mr. James: Yes, I am.

“The Court: Are you pleading guilty voluntarily and for no other reason?

“Mr. James: Yes, I am.

“The Court: Do you understand by entering this plea of guilty, you are waiving your right to a jury trial?

“Mr. James: Yes, I am.

“The Court: Do you realize you are giving up your right of silence and privilege against self-incrimination?

“Mr. James: Yes, I do.

“The Court: Do you understand the recommendation in this case is that, in fact, there will not be a recommendation and that sentencing will be left up to be based on the pre-sentence investigation report? Do you understand that?

“Mr. James: Yes, I do.

“The Court: Do you understand the statement of facts by the prosecutor and do you agree with the statement of facts?

“Mr. James: Yes, I do.

“The Court: Do you understand that you have plead [sic] guilty under the Alford Doctrine as indicated by your attorney, Mr. Kaplan?

“Mr. James: Yes, I do.

“The Court: Do you understand that I will accept the plea under the Alford Doctrine?

“Mr. James: Yes, I do.

“The Court: Do you still wish to plead guilty under the Alford Doctrine?

“Mr. James: Yes.

“The Court: Gentlemen, do you know of any reason why the plea should be not accepted?

“Mr. Kaplan: No, your Honor.

“Mr. Sullivan: No, your Honor.

“The Court: The court will make a finding that the plea of guilty is entered under the Alford Doctrine and that a factual basis exists for the plea of guilty under the Alford Doctrine and I will accept the plea under the Alford Doctrine.

“I will also make a finding that he has entered this plea knowingly, intelligently and voluntarily with the assistance and advice of counsel, and he understands the consequences of his plea and I will make a finding of guilty in this matter.

“Pre-sentence investigation for September 21.”

       “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.” State v. Palmer, 196 Conn. 157, 169 n.3, 491 A.2d 1075 (1985); see North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       “[Practice Book] Sec. 711.--advice to defendant
      “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he 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 has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he has the right to be tried by a jury or a judge and that at that trial he has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.”
      We have set forth in the appendix the transcript of the plea proceedings.

       On July 1,1984, the trial court, Gray, J., granted the defendant’s motion to modify the sentence and remitted the fine. The imprisonment and probationary terms of the sentence remained unchanged.

       “[Practice Book] Sec. 720. -WHEN ALLOWED
      “A defendant may withdraw his 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 plea upon proof of one of the grounds in Sec. 721. A defendant may not withdraw his plea after the conclusion of the proceeding at which the sentence was imposed.”

       “[Practice Book] Sec. 721. —grounds
      “The grounds for allowing the defendant to withdraw his plea of guilty after acceptance are as follows:
      “(1) The plea was accepted without substantial compliance with Sec. 711;
      “(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 court 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.”

       Practice Book § 711 imposes on the trial court an obligation to accept a plea to a criminal charge only when it is first satisfied that the requirements of the practice rules have been met. Finley v. Mason, 1 Conn. App. 260, 263, 470 A.2d 1234 (1984); see Practice Book §§ 711 through 713. Similarly, the rules of practice permit a withdrawal of a plea of guilty upon certain specified grounds. Practice Book §§ 720 through 722. One of these grounds is the lack of “substantial compliance” with § 711. See generally State v. Lasher, 190 Conn. 259, 460 A.2d 970 (1983); State v. Godek, 182 Conn. 353, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981).
      The state cites the federal decision in Kelleher v. Henderson, 531 F.2d 78 (2d Cir. 1976), in support of its argument that “the right to be informed of the possible maximum penalty is a non-constitutional right that does not trigger automatic reversal when not given to the defendant” but that case is not persuasive here. In the state court systems, there appears to be a division of authority as to whether the failure to inform of the maximum potential penalty constitutes automatic reversible error. 21 Am. Jur. 2d, Criminal Law § 476. Because in this matter our rules express a “substantial compliance” standard; Practice Book § 721 (1); we must, of course, decide the defendant’s practice book claim on that ground.