Court of Appeal for Ontario
Date: 2019-09-06
Docket: C62708
Judges: Pardu, Brown and Trotter JJ.A.
Between
Her Majesty the Queen Respondent
and
Lisenco Vitali Appellant
Counsel
Lisenco Vitali, self-represented
Michael Fawcett, for the respondent
Heard: September 3, 2019
Appeal Information
On appeal from the conviction entered and the sentence imposed on August 12, 2016 by Justice A.A. Ghosh of the Ontario Court of Justice.
Reasons for Decision
[1] Nature of the Appeal
The appellant pleaded guilty to two counts of failure to comply with a recognizance and three counts of break and enter a dwelling house and commit theft. The sentencing judge acceded to the submissions of defence counsel and sentenced the appellant to time served, amounting to 585 days of pre-sentence custody credited at 878 days. The appellant appeals from both conviction and sentence.
[2] Allegations of Ineffective Assistance
The appellant argues that his defence counsel was ineffective in multiple respects and makes the following unsworn allegations:
His lawyer did not provide him with a Russian interpreter and he did not understand what was happening when he pleaded guilty.
He did not instruct his lawyer to negotiate a global resolution.
His lawyer did not explain what "time served" meant.
His lawyer did not provide him with disclosure materials, including the DNA report linking his genetic profile to blood found at the scene of the break and enters.
His lawyer lied to him by saying his bail was revoked.
His lawyer made a global resolution on the three break and enter charges for which she was not representing him, and for which he was represented by another lawyer.
[3] Credibility of Allegations
These allegations are not credible given the record of the plea inquiry and the written instructions given to his counsel.
[4] Plea Inquiry Record
At the time of the guilty pleas on August 12, 2016 the appellant indicated that he understood all that was taking place, and that he did not want a translator:
DEFENCE COUNSEL: There will be a plea to the counts that Mr. Demczur has identified. And I have made the plea inquiry of my client and he recognizes that, by pleading guilty to these five counts, that he is giving up his right to a trial on each of them. And he advises me that he has been promised nothing. He has not been threatened in any way and his is doing these pleas on his own volition. And he recognizes that although Mr. Demczur and I are making submissions, that Your Honour will be the ultimate determination of the sentence.
THE COURT: Very good. He can be arraigned.
THE CROWN: And just for the record, Your Honour, Mr. Lisenco was nodding his head in assent…
THE COURT: He has been throughout, yes.
THE CROWN: … When [defence counsel] has been pleading – or indicating that he understood.
THE COURT: Yes. Mr. Lisenco, everything that your lawyer said is correct, right?
VITALI LISENCO: Yes.
THE COURT: Okay.
THE CROWN: And could I just put on the record also, it was canvassed with regard to a translator issue, but; we are – we are content to go forward without a translator. You understand sufficiently, sir?
DEFENCE COUNSEL: It has been a situation where M. Lisenco has been using the services of a translator for nuances, but for the purposes of today, he is content to proceed without one.
VITALI LISENCO: Yes.
THE COURT: All right. You have understood everything so far?
VITALI LISENCO: I understand everything.
THE COURT: All right.
VITALI LISENCO: It's very – it's sometimes hard to talk within the court, maybe everything I pronounce is not well, but I understand everything.
THE COURT: You understand everything.
VITALI LISENCO: Yes sir.
[5] Guilty Plea
When asked "How do you plead to these five counts as read, guilty or not guilty?" the appellant responded "I plead guilty, Your Honour"
[6] Factual Basis
The appellant was observed out and about without his surety, in breach of the terms of his recognizance. Three houses were broken into and property was stolen from them. The DNA found at the scene was linked to the appellant. Defence counsel advised that those facts were substantially correct.
[7] Sentencing Submissions
The plea followed a pretrial conference with the sentencing judge. Defence counsel indicated that the appellant was remorseful and that he was led to commit the offences because of a drug problem which he had been able to overcome while in custody. Defence counsel indicated that he had employment immediately available if a time served sentence was imposed.
[8] Appellant's Statement
When asked if he had anything to say before sentence was imposed, the appellant apologized for his conduct and said that he was then free of drug problems.
[9] Sentencing Judge's Observations
The sentencing judge observed that property taken in the break and enters had been seized by police and that the Crown would not have had difficulty proving some of the charges.
[10] Contemporaneous Notes and Instructions
Contemporaneous notes taken by counsel on April 15, 2015 record that the appellant wished to retain her on both the Newmarket and 1000 Finch charges, and gave her a package he said was disclosure given to previous counsel. Trial counsel's notes indicate she told him that it was not safe to work with partial disclosure, that she needed the complete package. The notes indicate that she verified the appellant's comprehension of English and that he told her he understood her well. He told her that his DNA would be in three homes and that the Crown had nothing on the other counts. He asked her to be his lawyer for all charges, and listed them for her in his own handwriting. She noted her agreement to act for him on all the charges.
[11] Written Instructions – September 24, 2015
Some 11 months before pleading guilty on September 24, 2015, the appellant gave his lawyer written instructions. Those instructions indicate that he rejected the resolution offer from the Crown to plead to 7 of the 16 counts of break and enter. Those instructions tell his counsel to go back to the Crown with a counter offer of a guilty plea to the 3 counts of break and enter for which there was DNA evidence linking him to the offence (he specified the addresses of those properties) plus 2-3 counts of possession of Stolen property or 1-2 counts of breach of recognizance for time served. He specifically instructed counsel that he did not want to "seek bail at this time".
[12] Negotiations and Trial Dates
Trial counsel advised that the Crown initially rejected the appellant's counter-proposal, and the appellant instructed his counsel to continue to advocate for his proposed resolution. She did so at a further judicial pretrial on November 16, 2015 and on December 2, 2015 counsel set trial dates for the Newmarket charges.
[13] Change in Crown and Further Pretrial
There was a change in the assigned Crown. There was a further judicial pre-trial on July 19, 2016 at which the presiding judge expressed his approval of the defence position in the event of a resolution. On July 21, 2016, trial counsel says the appellant authorized her again to proceed with the resolution on the same terms as his written instructions to her.
[14] Analysis and Conclusion on Ineffective Assistance
The claims of ineffective assistance do not withstand scrutiny given the written instructions given to counsel, the express waiver of the need for a translator in court, and the guilty plea proceedings themselves. There is no basis to conclude that the appellant did not completely understand what was happening and did not agree to the resolution of the matters on terms he dictated. There is no basis to conclude that there was any miscarriage of justice arising from any procedural unfairness, or compromise of the reliability of the result. It is apparent that the appellant understood the process in which the plea was entered, could communicate with counsel and could make a conscious choice. (See R. v. Cherrington, 2018 ONCA 653)
[15] Sentence Appeal
There is no basis upon which this court could intervene on the sentence appeal, given the record before this court.
[16] Disposition
Leave to appeal sentence is granted but the appeal from sentence is dismissed. The appeal from conviction is dismissed.
G. Pardu J.A.
David Brown J.A.
Gary Trotter J.A.