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STATE OF CONNECTICUT v. RICARDO BARRIGA

(AC 37747)

DiPentima, C. J., and Beach and Flynn, Js.

Submitted on briefs February 29—officially released May 24, 2016

(Appeal from Superior Court, judicial district of

Stamford-Norwalk, geographical area number one,

Hon. Martin L. Nigro, judge trial referee.)
Ricardo Barriga, self-represented, the appellant

(defendant), filed a brief.

David I. Cohen, state’s attorney, Mitchell Rubin,

senior assistant state’s attorney, and Emily Graner Sexton, special deputy assistant state’s attorney, filed a

brief for the appellee (state).
Opinion

FLYNN, J. Practice Book § 60-2 provides, in pertinent

part: ‘‘The supervision and control of the proceedings

on appeal shall be in the court having appellate jurisdiction from the time the appeal is filed, or earlier . . . .’’

The rule goes on to provide that the court ‘‘may also,

for example . . . (5) order that a party for good cause

shown may file a late appeal . . . .’’1 Practice Book

§ 60-2. On February 4, 2015, the defendant, Ricardo

Barriga, a citizen of Peru, filed an appeal from his conviction after guilty pleas to two counts of possession

of marijuana in violation of General Statutes § 21a-279

(c).2 The judgments of his conviction entered on January 28, 2005, over ten years prior to his appeal from it on

February 4, 2015. The defendant claims that in August,

2013, he was ordered deported due to his prior conviction. The defendant requests this court to accept his

late appeal using its supervisory authority pursuant to

Practice Book § 60-2 (5) and to treat the appeal as

though he had filed a request to file an untimely appeal.

We dismiss the appeal.

Before accepting the defendant’s guilty pleas, the trial

court informed him of the elements of the charged

offenses, what the state would be required to prove,

and what trialrights he was forfeiting by pleading guilty.

The defendant was represented by counsel at the plea

and sentencing, at which the court accepted the guilty

pleas and sentenced him to two years of incarceration,

execution suspended, and two years of probation. It is

undisputed by the state that the sentencing court did

not advise the defendant of any possible immigration

law consequences prior to his making his pleas. The

defendant did not precede the filing of his appeal with

a request to file a late appeal, nor did he ever timely

move to withdraw his pleas before the trial court.

In addition to requesting this court to accept his late

appeal using its supervisory authority pursuant to § 60-

2 (5), the defendant also calls on this court to extend

the three year statutory limitation on vacating guilty or

nolo contendere pleas in General Statutes § 54-1j, and

to determine that that limitation is unconstitutional.

The state makes two arguments in opposition. It contends that § 54-1j is not unconstitutional, and that this

court cannot extend the three year time limitation for

vacating a guilty plea.

Section § 54-1j (a) requires that ‘‘[t]he [trial] 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.’’ However, in adopting § 54-1j, the legislature included

subsection (c), which provides that if the court does

not advise the defendant of one of the enumerated

consequences and ‘‘the defendant not later than three

years after the acceptance of the plea shows that the

defendant’s plea and conviction may have one of the

enumerated consequences, the court, on the defendant’s motion, shall vacate the judgment, and permit

the defendant to withdraw the plea of guilty or nolo

contendere, and enter a plea of not guilty.’’ The defendant contends on appeal that this court should extend

the provisions of § 54-1j(c) beyond the three yearlimitation period and hold the statute unconstitutional

because it ultimately does not ensure protection from

the infringement of a resident alien’s liberty rights.

We first address the defendant’s contention that the

three year limit is ‘‘stale’’ and ‘‘no longer serves the

ends of justice’’ in contemporary times and that the

three year limitation should be extended by this court.

Although our courts have the power and duty to interpret and apply laws enacted by the General Assembly,

they do not have the power to repeal or amend them.

That power is vested in elected members of the legislature and not in the courts. Article third, § 1, of the

Connecticut constitution provides: ‘‘The legislative

power of the state shall be vested in two distinct houses

or branches; the one to be styled the senate, the other

the house of representatives, and both together the

general assembly.’’ ‘‘Whatever . . . [the constitution]

prescribes, the General Assembly, and every officer or

citizen to whom the mandate is addressed, must do;

and whatever it prohibits, the General Assembly, and

every officer and citizen, must refrain from doing; and

if either attempt to do that which is prescribed, in any

other manner than that prescribed, or to do in any

manner that which is prohibited, their action is repugnant to that supreme and paramount law, and invalid.’’

(Internal quotation marks omitted.) Caldwell v. Meskill,

164 Conn. 299, 314–15, 320 A.2d 788 (1973), quoting

Opinion of the Judges, 30 Conn. 591, 593–94 (1862).

Furthermore, there is an obvious rationale behind

the three year limitation, within which § 54-1j provides

that the court may vacate a judgment of guilty and

permit a defendant to withdraw his plea and enter a

plea of not guilty. As we observed in State v. Alegrand,

130 Conn. App. 652, 665, 23 A.3d 1250 (2011), ‘‘[t]here

is a public interest in maintaining some finality to judgments. Prosecutions cannot easily be recommenced

when arresting officers no longer are available, witnesses are dead or cannot be found and physical evidence of crime has been destroyed. Public trust and

confidence in the judiciary is sapped when cases are

allowed to linger endlessly for years or decades in trial

or appellate tribunals.’’
We next address the defendant’s unconstitutionality

claim. Although the defendant makes the bare statement that the time limitation of three years found in

§ 54-1j (c) is unconstitutional, he provides us with no

analysis of how he claims it is violative of the fifth and

fourteenth amendments to the United States constitution or article seventeen of the constitution of Connecticut, as amended by article twenty-nine of the

amendments,3

to permit this court to adjudicate

whetherthe statute is facially unconstitutional. Furthermore, there is no factual record beyond the undisputed

fact that the statutorily required immigration consequence advisory was not made by the sentencing court.

As the state points out, there is no evidence of the

deportation order or the reasons for it or for any other

claimed collateral consequence of his pleas to permit

review of how the three year limitation is unconstitutional as applied to him. We cannot speculate on what

facts might underlie the defendant’s bare claims, and,

therefore, we conclude that his unconstitutionality

claim is unreviewable.

We next address whether this court should accept

an appeal of the defendant’s conviction filed more than

ten years after he was convicted, pursuant to our supervisory powers under Practice Book § 60-2. Having carefully considered the rule in light of the sparse record

before us, we decline to do so.

The defendant points us to State v. Reid, 277 Conn.

764, 894 A.2d 963 (2006), as authority for the granting

of his late appeal. In that case, the defendant, Mark

Reid, was ordered deported, and thereafter was

removed from the United States and deported to

Jamaica. Id., 771. Reid’s first conviction of sexual

assault in the first degree, for which he was originally

to be deported by the Immigration Service, resulted in

his later exoneration based on a DNA test that was not

available at the time of his trial. See id., 769 n.5. Reid

was sentenced to eighteen years imprisonment, but his

conviction was vacated five years later based on the

results of that test. Id. The charges against Reid eventually were dismissed and he was released after serving

approximately six years of his prison sentence. Id. A

prior conviction of assault in the second degree then

became the newly asserted grounds for deportation,

but Reid claimed that he was never advised about the

elements of that crime before pleading guilty to it. Id.,

771. The court in Reid held that our Supreme Court

retains jurisdiction to review convictions through its

supervisory powers even when the trial court’s jurisdiction terminates.Id., 777–78.In Reid,the court also noted

that it was a rare case that warranted treating a motion

to withdraw his guilty plea as a motion to extend the

time for appeal of an eleven year old conviction. Id., 778.

As earlier observed, the defendant has not provided

us with an adequate record to determine what order of
removal from the United States the defendant is subject

to by virtue of his conviction. Lack of any such record

prevents us from determining what factual case the

defendant has, much less whether it possesses the rare

circumstances, similar to that in Reid, justifying a ten

year late appeal. See id. In State v. Aquino, 279 Conn.

293, 298, 901 A.2d 1194 (2006), our Supreme Court held

that it could grant no relief to a person who was

deported unless deportation was the result of his guilty

plea alone.

The defendant had remedies with which to challenge

his pleas and conviction that he never availed himself

of. Priorto his conviction,the defendant neverindicated

a desire to change his pleas. Furthermore, he did not file

a timely direct appeal within twenty days of receiving

notice of the judgments of his conviction, pursuant to

Practice Book § 63-1, nor did he file a petition for a

new trial, pursuant to PracticeBook § 42-55 and General

Statutes § 52-270. Additionally, he did not apply for a

pardon pursuant to General Statutes § 54-130a. Moreover, he did not seek to vacate his pleas within the

three year time span from the date of his conviction

permitted by § 54-1j. Significantly, appellate courts’

‘‘supervisory powers are invoked only in the rare circumstance where . . . traditional protections are inadequate to ensure the fair and just administration of the

courts.’’ (Internal quotation marks omitted.) State v.

Reid, supra, 277 Conn. 778. The defendant had such

adequate remedies available to him; however, he did

not use them.

The appeal is dismissed.

In this opinion the other judges concurred.

1 General Statutes § 54-95 authorizes appeals by defendants from criminal

judgments; however, the statute does not set the time within which such

appeals must be taken. That is done by rule. Practice Book § 63-1 sets the

time within which such appeals must be taken at twenty days from the date

notice of the judgment or decision is given.

2 The defendant was also convicted on guilty pleas to two counts of

operating a motor vehicle while under the influence of intoxicating liquor

or drugs in violation of General Statutes § 21a-279 (c). He has not appealed

from his conviction of those charges.

3 See State v. Geisler, 222 Conn. 672, 610 A.2d 1225 (1992).