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*********************************************** 
STATE OF CONNECTICUT v. EVANDRO M. LIMA

(AC 39400)

Sheldon, Elgo and Mihalakos, Js.

Syllabus

Convicted, following a plea of guilty, of the crime of conspiracy to commit

larceny in the sixth degree, the defendant appealed to this court. He

claimed that the trial court improperly denied his motion to vacate the

judgment of conviction and to withdraw his plea because that court did

not determine whether he understood the immigration consequences

of his guilty plea prior to accepting it, as required by statute (§ 54-1j).

Held that the trial court abused its discretion in denying the defendant’s

motion to vacate; at no time during the plea canvass did the trial court

ask the defendant if he understood the potential immigration consequences of his guilty plea and, instead, simply advised him that his

conviction could result in his removal or deportation from the United

States, and, thus, the trial court did not substantially comply with the

requirements of § 54-1j (a) prior to accepting the defendant’s plea, and

the court, in denying the defendant’s motion to vacate, improperly relied

on the facts that the defendant, when entering his guilty plea, had

expressed his absolute satisfaction with his attorney’s representation

of him and told the court that there was no reason that his plea should

not have been accepted, which were meaningless statements in the

absence of some indication that the defendant knew and understood

the potential consequences of his guilty plea.

Argued November 30, 2017—officially released March 6, 2018

Procedural History

Information charging the defendant with the crime

of conspiracy to commit larceny in the sixth degree,

brought to the Superior Court in the judicial district

of New Britain, geographical area number seventeen,

where the defendant was presented to the court, Johnson, J., on a plea of guilty; judgment of guilty; thereafter,

the court, Dyer, J., denied the defendant’s motion to

vacate the judgment and withdraw his plea, and the

defendant appealed to this court. Reversed; further proceedings.

Vishal K. Garg, for the appellant (defendant).

Linda F. Currie-Zeffiro, assistant state’s attorney,

with whom, on the brief, were Brian Preleski, state’s

attorney, and Paul Rotiroti, senior assistant state’s

attorney, for the appellee (state).
Opinion

SHELDON, J. The defendant, Evandro M. Lima,

appeals from the judgment of the trial court denying

his motion to vacate his conviction following his guilty

plea to one count of conspiracy to commit larceny in

the sixth degree in violation of General Statutes §§ 53a48 and 53a-125b. The defendant claims that the trial

court abused its discretion in denying his motion

because, under General Statutes § 54-1j,1

the court was

required but failed to ask the defendant whether he

understood the possible immigration consequences of

pleading guilty before accepting his plea.2 We agree

with the defendant and reverse the judgment of the

trial court.

The following procedural history is relevant to our

resolution of this appeal. On August 1, 2014, the defendant entered a plea of guilty under the Alford doctrine3

to conspiracy to commit larceny in the sixth degree

after he conspired with another individual to commit

a shoplifting at Price Chopper in Southington. During

the plea canvass, the court asked the defendant several

questions, including whether he was under the influence of alcohol, drugs or any other medication. The

defendant answered in the negative. The court also

asked the defendant whether he had had enough time

to discuss his case with his attorney and was satisfied

with his attorney’s advice; whether his attorney had

reviewed with him all of the evidence that the state

claimed that it had to prove his guilt; and whether his

attorney had informed him of the maximum possible

penalty he was facing in the event of conviction. The

court also asked the defendant if he knew that by pleading guilty, he was giving up his right to have a trial, to

require the state to prove his guilt beyond a reasonable

doubt, to confront and cross-examine witnesses and to

present his own witnesses and his own testimony. The

defendant responded in the affirmative to all of the

court’s inquiries. The court then told the defendant: ‘‘If

you are not a U.S. citizen, this conviction may result in

your removal from the United States or deportation

under federal law.’’ The court followed that admonition

with the question: ‘‘Has anyone forced or threatened

you to enter your plea today?’’ The defendant responded

in the negative and affirmed that he was entering his

plea of his own free will. The court asked the defendant:

‘‘[I]s there any reason why I shouldn’t accept your plea?’’

The defendant responded: ‘‘Not at all.’’ The court found

that the plea was ‘‘knowingly and voluntarily made with

the assistance of competent counsel,’’ and thus ordered

that it be accepted.

Thereafter, on August 11, 2015, pursuant to § 54-1j

(a) and (c), the defendant filed a motion to vacate his

conviction and withdraw his guilty plea, claiming that

the trial court improperly failed to determine whether

he understood the immigration consequences of his
guilty plea and that he had discussed the possible immigration consequences of the plea with his attorney

before entering it. The trial court denied the defendant’s

motion, concluding: ‘‘By advising the defendant in this

case that his conviction for conspiracy to commit larceny could result in his removal or deportation from

the United States under federal law, the trial court adequately and substantially warned the defendant that his

immigration status could be adversely affected as a

consequence of his decision to plead guilty. Although

the trial court did not specifically inquire of the defendant if he understood the potential immigration consequences, the transcript reflects that the trial court did

personally address the defendant, and that the defendant was satisfied with his counsel’s representation.

Specifically, the defendant told the court that he was

‘absolutely’ satisfied with the representation that he

received from his public defender. Additionally, subsequent to advising the defendant that his plea could result

in his deportation or removal from the United States,

the court asked the defendant if there was any reason

why his plea should not be accepted. The defendant

responded: ‘[N]ot at all.’ Viewed in its entirety, the transcript indicates that the defendant understood the trial

court’s questions and remarks during the plea canvass.

The court found the defendant’s plea was knowingly

and voluntarily made with the assistance of competent

counsel. Implicit in that finding by the trial court is a

determination that the defendant understood the

court’s warning about the possible immigration consequences of his guilty plea.’’ The court then concluded

that: ‘‘Based on the foregoing, the undersigned finds

that the trial court substantially complied with the provisions of . . . § 54-1j when the defendant pleaded

guilty and was sentenced on August 1, 2014.’’

On appeal, the defendant claims that the court erred

in denying his motion to vacate the judgment on his

guilty plea because the court failed to determine that

he understood the possible immigration consequences

of his guilty plea as required under § 54-1j (a).4 We

agree.

‘‘[A guilty] plea, once accepted, may be withdrawn

only with the permission of the court. . . . The burden

is always on the defendant to show a plausible reason

for the withdrawal of a plea of guilty. . . . Whether

such proof is made is a question for the court in its

sound discretion, and a denial of permission to withdraw is reversible only if that discretion has been

abused.’’ (Citation omitted; footnote omitted; internal

quotation marks omitted.) State v. Hall, 303 Conn. 527,

532–33, 35 A.3d 237 (2012).

‘‘Section 54-1j (a) provides that the court shall not

accept a guilty plea without first addressing the defendant personally to ensure that he fully understands that,

if he is not a United States citizen, his conviction may
have certain enumerated immigration consequences

under federal law, and, further, if the defendant has not

discussed these possible consequences with his attorney, the court shall permit him to do so before accepting

his plea offer. Section 54-1j (c) provides that, if the court

fails to comply with the requirements of subsection (a),

and the defendant can demonstrate that his conviction

may have one of the enumerated immigration consequences, the court, upon motion of the defendant within

three years of the plea, shall vacate the judgment and

permit the defendant to withdraw his guilty plea and

enter a plea of not guilty.

‘‘Thus, by its terms, [§] 54-1j (a) permits a court to

accept a defendant’s plea only if the court conducts a

plea canvass during which . . . the court determines

that the defendant understands fully the possible immigration consequences that may result from entering a

plea . . . .’’ (Internal quotation marks omitted.) State

v. Lima, 325 Conn. 623, 629, 159 A.3d 651 (2017). ‘‘[I]t

[is] not necessary for the trial court to read the statute

verbatim . . . [and, instead] only substantial compliance with the statute is required to validate a defendant’s guilty plea.’’ (Internal quotation marks omitted.)

State v. Lage, 141 Conn. App. 510, 517, 61 A.3d 581

(2013).

Here, at no time did the court ask the defendant if

he understood the potential immigration consequences

of his guilty plea. The court simply advised the defendant that his conviction could result in his removal or

deportation from the United States. Rather than ask

the defendant if he understood that advisement, which

arguably was insufficient to comply with § 54-1j (a),5

the court asked the defendant if anyone had forced or

threatened him to plead guilty. In denying the defendant’s motion to vacate, the court relied upon the facts

that the defendant, when entering his guilty plea, had

expressed his absolute satisfaction with his attorney’s

representation of him and told the court that there was

no reason ‘‘at all’’ that his plea should not have been

accepted. Those statements by the defendant, however,

are meaningless in the absence of some indication that

the defendant knew and understood the potential consequences of his guilty plea. In other words, there is

nothing in the record to indicate that the defendant

knew that his attorney should have discussed the potential immigration consequences with him, and thus there

could have been no basis for the defendant to express

a dissatisfaction with his attorney for not advising him

of those potential consequences. Similarly, if the defendant did not understand the potential immigration consequences of his guilty plea, he could not have known

that said potential consequences might be a valid reason

to ask the court not to enter his guilty plea.

In support of its argument that the court substantially

complied with § 54-1j (a), the state relies upon State v.
Hall, supra, 303 Conn. 527. In Hall, our Supreme Court

affirmed the judgment denying the motion to vacate

the defendant’s guilty plea and held that the court had

substantially complied with § 54-1j (a) even though it

had not addressed the defendant personally and determined whether he understood the immigration consequences of his guilty plea because it had, instead, asked

the defendant’s attorney if he had discussed those consequences with the defendant and whether the defendant understood them. Id., 536. In so ruling, the court

explained that the trial court was entitled to rely upon

the representations of the defendant’s attorney that the

defendant had been advised of and understood the

potential immigration consequences of his guilty plea.

Id. Because the sentencing court in the present case

did not determine whether the defendant understood

the potential immigration consequences of his guilty

plea, either by asking the defendant personally or by

asking the defendant’s attorney, this case is readily distinguishable from Hall.

The state also cites State v. Lage, supra, 141 Conn.

App. 510, in support of its argument that the canvass

of the defendant substantially complied with § 54-1j (a).

In Lage, this court affirmed the judgment denying the

motion to vacate the defendant’s guilty plea. During its

canvass, the court told the defendant, inter alia: ‘‘ ‘If

you are not a citizen of the United States, this is a

felony, it could result in deportation, removal, denial

of admission, exclusion from readmission or denial of

naturalization. . . . Any questions about anything I’ve

said?’ ’’ Id., 518. The defendant responded, ‘‘ ‘No,

ma’am.’ ’’ Id. The court then asked the defendant if he

‘‘agree[d] to all of that’’ and whether he had ‘‘discussed

it all with [his] attorney.’’ (Internal quotation marks

omitted.) Id. The defendant responded affirmatively to

both questions. Id. This court affirmed the denial of the

defendant’s motion to vacate his guilty plea and held

that the canvass was ‘‘more than sufficient to determine,

on the basis of his responses, that [the defendant]

understood the possible immigration consequences of

his pleas . . . .’’ Id., 520. Unlike the defendant in Lage,

the defendant here was not asked whether he understood or had any questions regarding the court’s advisement that his guilty plea could lead to his deportation.

Thus, Lage also is distinguishable from the case

before us.

Finally, the state asserts that State v. James, 139

Conn. App. 308, 57 A.3d 366 (2012), supports its argument that the court substantially complied with § 54-1j

(a). In James, the court addressed the defendant, inter

alia, as follows: ‘‘Finally, I would tell you . . . only if

it applied, if you are not a citizen of our country, such

a conviction could possibly result in your deportation,

exclusion from admission or denial of naturalization.

Do you have any questions you would like to ask the

court?’’ (Internal quotation marks omitted.) Id., 315.
The defendant responded that she did not. Id., 316.

James also is distinguishable from the present case

because, here, the court did not ask the defendant if he

had any questions about or understood the possibility

of deportation, of which he had just been advised.

On the basis of the foregoing, we conclude that the

court erred in finding that the canvass of the defendant

substantially complied with § 54-1j (a) because there

was no determination that the defendant understood

the potential immigration consequences of his guilty

plea before he entered it. Therefore, the court abused

its discretion in denying the defendant’s motion to

vacate his guilty plea.

The judgment is reversed and the case is remanded

with direction to grant the defendant’s motion to vacate

the judgment of conviction and withdraw his guilty plea

and for further proceedings according to law.

In this opinion the other judges concurred.

1 General Statutes § 54-1j (a) provides: ‘‘The court shall not accept a plea

of guilty or nolo contendere from any defendant in any criminal proceeding

unless the court first addresses the defendant personally and determines

that the defendant fully understands that if the defendant is not a citizen

of the United States, conviction of the offense for which the defendant has

been charged may have the consequences of deportation or removal from

the United States, exclusion from readmission to the United States or denial

of naturalization, pursuant to the laws of the United States. If the defendant

has not discussed these possible consequences with the defendant’s attorney, the court shall permit the defendant to do so prior to accepting the

defendant’s plea.’’

General Statutes § 54-1j (c) provides: ‘‘If the court fails to address the

defendant personally and determine that the defendant fully understands

the possible consequences of the defendant’s plea, as required in subsection

(a) of this section, and the defendant not later than three years after the

acceptance of the plea shows that the defendant’s plea and conviction may

have one of the enumerated consequences, the court, on the defendant’s

motion, shall vacate the judgment, and permit the defendant to withdraw

the plea of guilty or nolo contendere, and enter a plea of not guilty.’’

2 The defendant also claims that the court failed to substantially comply

with § 54-1j (a) because it did not advise him that one of said potential

immigration consequences was the possible exclusion from readmission to

the United States or denial of naturalization. Although the defendant did

not assert this argument in his motion to vacate, the trial court addressed

it. Because, however, we conclude that the court failed to determine whether

the defendant understood the possible immigration consequences of his

guilty plea in violation of § 54-1j, we need not address this additional claim

of noncompliance.

3 A defendant pleading guilty under the Alford doctrine neither admits

guilt nor protests innocence, but merely acknowledges that the state can

produce evidence that would be sufficient to obtain a conviction. See North

Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

4 The defendant does not claim on appeal that the court failed to ask

whether he had spoken to his attorney about the potential immigration

consequences of his guilty plea.

5 See footnote 2 of this opinion.