ESPINOSA, J.
The defendant, Gary William Stocking, appeals from the judgment of conviction rendered by the trial court, following his guilty plea under the Alford doctrine,
The record reflects the following relevant procedural history. On July 28, 2009, the defendant appeared before the court and pleaded guilty under the Alford doctrine to one count of possession of child pornography in the second degree. The
After a one-half hour standoff, the police apprehended the defendant. The police entered the residence and, specifically, the defendant's bedroom, where they observed child pornography, in plain view, in the form of photographic images of very young nude children. Based on their observations in the bedroom, the police also had a reason to suspect that, during the standoff, the defendant had attempted to destroy or hide computer equipment. After the police took the defendant into custody, he voluntarily told police that he had been in an argument with his stepfather. Additionally, the defendant told the police that he had a sexual interest in children and that, although he had not had sexual contact with a child, he believed that such contact should be lawful. He opined that the images of children in his possession were not pornographic in nature, but were art. The police applied for and obtained a search warrant for the residence. The search yielded photographic images of children in the nude or posed in sexually provocative ways, as well as photographic storage devices, such as DVDs, CDs and floppy discs, all of which contained digital images of a similar nature.
The prosecutor represented that, in exchange for the defendant's guilty plea, the state would enter a nolle prosequi with regard to any pending charges against the defendant related to the domestic dispute with his stepfather, that there would not be a federal prosecution related to the defendant's possession of child pornography and that the state would recommend a sentence of ten years incarceration, execution suspended after four years, followed by five years of probation on the possession of child pornography charge. The recommended sentence included mandatory sex offender registration as well as mandatory sex offender evaluation and treatment.
After the court conducted a lengthy canvass of the defendant concerning the nature of his plea, the court found that the plea was "voluntary, understandably made, with the assistance of competent counsel." The court found that there was a factual basis for the plea, accepted the plea and made a finding of guilt.
On November 24, 2009, prior to the sentencing hearing, the defendant filed a motion for permission to withdraw his guilty plea.
Before turning to the merits of the defendant's claim,
Generally, ineffective assistance of counsel claims are not properly raised in a direct appeal, but, rather, by a petition for a new trial or a writ of habeas corpus, which provide an opportunity for the trial court to conduct an evidentiary hearing related to the claim of ineffective assistance. See, e.g., State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480 ("a claim of ineffective assistance of counsel is more properly pursued on a petition for new trial or on a petition for a writ of habeas corpus rather than on direct appeal" [internal quotation marks omitted]), cert. denied, 476 U.S. 1184, 106 S.Ct. 2922, 91 L.Ed.2d 550 (1986). Practice Book § 39-27 "provides an exception to that general rule when ineffective assistance of counsel results in a guilty plea. A defendant must satisfy two requirements . . . to prevail on a claim that his guilty plea resulted from ineffective assistance of counsel. . . . First, he must prove that the assistance was not within the range of competence displayed by lawyers with ordinary training and skill in criminal law. . . Second, there must exist such an interrelationship between the ineffective assistance of counsel and the guilty plea that it can be said that the plea was not voluntary and intelligent because of the ineffective assistance." (Internal quotation marks omitted.) State v. Gray, 63 Conn.App. 151, 161-62, 772 A.2d 747, cert. denied, 256 Conn. 934, 776 A.2d 1151 (2001).
The gist of the defendant's argument is that McKay was ineffective in that he failed to adequately research the issue of whether the images seized from the defendant's bedroom were the fruit of police illegality and that he failed to advise the defendant that there was "a very strong likelihood that all of the evidence of the crime to which [he] pled guilty would have been suppressed." The defendant argues that McKay's failure to accurately advise him of his favorable chances of prevailing on a motion to suppress the images seized from his bedroom rendered his plea unknowing and involuntary, and that "if [he] had been advised that literally all of the evidence against him would likely be suppressed, he would not have pled guilty."
The evidence presented at the hearing on the motion to withdraw the plea amply supports the court's finding that on numerous occasions McKay advised the defendant that he had the right to challenge the legality of the search of his bedroom. Although the defendant claims that McKay was deficient in failing to advise him that there was a "very strong likelihood" that the trial court would have suppressed this evidence, the evidence and the court's findings make clear that the defendant was well aware that a motion to suppress the evidence would have been pursued by McKay, had the defendant elected to proceed to trial.
In denying the defendant's motion to withdraw the plea, the court properly focused on the fact that the plea bargain accepted by the defendant did not merely cover the possession of child pornography charge, but all of the charges related to his criminal conduct on April 24, 2008. For his possession of images of nude children in electronic format, the defendant had been charged with possession of child pornography in the first degree, a felony offense that carried a penalty of up to twenty years incarceration. See General Statutes §§ 53a-196d and 53a-35a. He was charged with several criminal offenses related to his domestic dispute with his stepfather, offenses that subjected him to an additional ten year term of incarceration. The prosecutor represented, as part
Thus, the record amply supports the finding that the defendant, having rejected an earlier plea offer, received the benefit of a reduced term of incarceration in return for his guilty plea. He agreed to a significantly lesser term of incarceration than that to which he was exposed by virtue of the charges against him. The plea agreement included a representation by the state that federal charges would not be pursued, a representation that significantly lessened the likelihood that the defendant would be exposed to multiple prosecutions for the same offense. Moreover, the record reflects that the defendant was well aware that in exchange for a favorable sentence, he was forgoing the right to pursue defenses to the charges pending against him.
In denying the motion to withdraw, the court placed a great deal of emphasis on the defendant's responses to inquiries at the time he entered his plea. Specifically, the court emphasized the defendant's representations that he was not rushed into entering the plea, that he was satisfied with the advice given him by McKay and that he recognized that he was not merely giving up his right to proceed to trial, but to present any types of defenses to the charges pending against him.
The court's exercise of discretion in denying the motion to withdraw the plea rested upon its finding that the defendant knowingly, intelligently and voluntarily decided, at the time that he entered the plea, "to cut his losses" and accept a favorable offer from the state. The court reasonably determined that the defendant's motion was not premised on a showing that McKay had forced him to accept an unfavorable plea agreement, but was premised on his subjective belief that he had a stronger argument in favor of suppressing evidence seized from his bedroom than he realized at the time that he entered his plea. In examining the court's exercise of discretion, we are mindful that "[i]n general, abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors." (Internal quotation marks omitted.) State v. Jacobson, 283 Conn. 618, 627, 930 A.2d 628 (2007). The court logically considered the relevant facts and reasonably concluded that the defendant's change of heart, based on his subjective view of the suppression issue months after he entered his plea, was not a sufficient basis on which to grant the motion. On the basis of all of the circumstances apparent in the record, we conclude that the court's ruling reflected a sound exercise of discretion. Accordingly, we reject the defendant's claim.
The judgment is affirmed.
In this opinion the other judges concurred.