



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lisenco, 2019 ONCA 691

DATE: 20190906

DOCKET: C62708

Pardu, Brown and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lisenco Vitali

Appellant

Lisenco Vitali, self-represented

Michael Fawcett, for the respondent

Heard: September 3, 2019

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]

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]

The appellant argues that his defence counsel
    was ineffective in multiple respects and makes the following unsworn
    allegations:

1.

His lawyer did not provide him with a Russian
    interpreter and he did not understand what was happening when he pleaded
    guilty.

2.

He did not instruct his lawyer to negotiate a
    global resolution.

3.

His lawyer did not explain what time served
    meant.

4.

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.

5.

His lawyer lied to him by saying his bail was
    revoked

6.

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]

These allegations are not credible given the record
    of the plea inquiry and the written instructions given to his counsel.

[4]

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: Its very  its 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]

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]

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]

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]

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]

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 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 counsels 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 appellants 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]

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]

Trial counsel advised that the Crown initially
    rejected the appellants 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]

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]

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] O.J. No. 4012)

[15]

There is no basis upon which this court could
    intervene on the sentence appeal, given the record before this court.

[16]

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.


