State v. Adams

• Decision Date: 13 November 2018
• Docket Number: AC 40946
• Citation: 198 A.3d 691,186 Conn.App. 84
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Anthony ADAMS

186 Conn.App. 84

198 A.3d 691

STATE of Connecticut

v.Anthony ADAMS

AC 40946

Appellate Court of Connecticut.

Argued September 24, 2018

Officially released November 13, 2018

Anthony Adams, self-represented, the appellant (defendant).

Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Kevin D. Lawlor, state's attorney, and Cornelius P. Kelly, supervisory assistant state's attorney, for the appellee (state).

Elgo, Bright and Sullivan, Js.

ELGO, J.

The self-represented defendant, Anthony Adams, appeals from the judgment of the trial court denying his postsentencing motions to correct an illegal sentence and for procedural default. On appeal, the defendant claims that the court improperly (1) rejected his double jeopardy challenge to his sentence for two counts of hindering prosecution in the second degree in violation of General Statutes § 53a-166, (2) concluded that his sentence did not exceed the statutory maximum, (3) denied his motion for procedural default, and (4) advocated on behalf of the state at the hearing on his motions. We affirm the judgment of the trial court.

On October 28, 2012, Daquane Adams and Eugene Walker were involved in a drug deal that culminated with the fatal shooting of the victim, Neville Malacai Registe. See State v. Walker , 180 Conn. App. 291, 296–97, 183 A.3d 1, cert. granted, 328 Conn. 934, 183 A.3d 634 (2018). After fleeing the scene, Adams and Walker telephoned the defendant. The defendant then placed a telephone call to a friend and had her pick up Adams and Walker from their location in New Haven.

On August 18, 2016, the defendant was charged, by substitute information, with one count of felony murder in violation of General Statutes § 53a-54c, one count of attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-8, 53a-49 (a) (2) and 53a-134 (a) (2), and two counts of hindering prosecution in the second degree in violation of § 53a-166. The defendant thereafter entered a guilty plea to two counts of hindering prosecution in the second degree.¹ In accordance with the terms of that plea, the court sentenced the defendant to consecutive terms of seven and one-half years incarceration, execution suspended after five years, with five years of probation. His total effective sentence on the two hindering prosecution counts was fifteen years incarceration, execution suspended after ten years, with five years of probation.

Months later, the defendant filed a motion to correct an illegal sentence, claiming that his sentence exceeded the statutory maximum and violated the prohibition against double jeopardy.² The defendant later filed a motion for procedural default predicated on the state's failure to file a written response to his motion to correct.

The court held a hearing on the defendant's motions on July 26, 2017, at which it denied both motions. From that judgment, the defendant now appeals.

I

The defendant first claims that the court improperly rejected his double jeopardy challenge to his sentence on the two hindering prosecution counts. In response, the state argues that the defendant waived that claim by pleading guilty to those counts. We agree with the state.

The double jeopardy clause of the fifth amendment to the United States constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb ...."³ That constitutional provision is applicable to the states through the due process clause of the fourteenth amendment. Benton v. Maryland , 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). An alleged double jeopardy violation is a proper basis for a motion to correct an illegal sentence. See State v. Wade , 178 Conn. App. 459, 466, 175 A.3d 1284 (2017), cert. denied, 327 Conn. 1002, 176 A.3d 1194 (2018).

It nevertheless remains that the defendant pleaded guilty to the two counts in question and in this appeal does not dispute that his plea was voluntarily and intelligently made. See footnote 1 of this opinion. Our Supreme Court has observed that "[a]s a general rule, an unconditional plea of guilty ... intelligently and voluntarily made, operates as a waiver of all nonjurisdictional defects and bars the later assertion of constitutional challenges to pretrial proceedings.... Therefore, only those issues fully disclosed in the record which relate either to the exercise of jurisdiction ... by the court or to the voluntary and intelligent nature of the plea are ordinarily appealable after a plea of guilty ...." (Citations omitted; emphasis omitted; footnotes omitted.) State v. Madera , 198 Conn. 92, 97–98, 503 A.2d 136 (1985).

The United States Supreme Court, in addressing the viability of a double jeopardy challenge following a guilty plea, has explained that "[j]ust as a defendant who pleads guilty to a single count admits guilt to the specified offense, so too does a defendant who pleads guilty to two counts with facial allegations of distinct offenses concede that he has committed two separate crimes." United States v. Broce , 488 U.S. 563, 570, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). In that case, the court emphasized that the defendants "had the opportunity, instead of entering their guilty pleas, to challenge the theory of the indictments .... They chose not to, and hence relinquished that entitlement." Id., at 571, 109 S.Ct. 757. Relinquishment of a double jeopardy claim, the court continued, "derives not from any inquiry into a defendant's subjective understanding of the range of potential defenses, but from the admissions necessarily made upon entry of a voluntary plea of guilty." Id., at 573–74, 109 S.Ct. 757 ; accord United States v. Burroughs , 691 Fed. Appx. 31, 33 (2d Cir. 2017) (defendant's "valid guilty plea ... constitutes a waiver of his double jeopardy claim"). The Supreme Court thus held that, unless a double jeopardy violation is apparent on the face of the charging documents, a defendant's ability to raise such a challenge "is foreclosed by the admissions inherent" in his or her guilty plea. United States v. Broce , supra, at 575–76, 109 S.Ct. 757.

Examination of the operative charging document in the present case reveals no facial violation of the prohibition against double jeopardy. The August 18, 2016 substitute information contains four counts, the latter two of which allege hindering prosecution in the second degree in violation of § 53a-166.⁴ The third count alleges in relevant part that the defendant "rendered criminal assistance to [Adams], by way of providing him with transportation and ... [Adams] had committed a Class B felony ...." The fourth count alleged in relevant part that the defendant "rendered criminal assistance to [Walker], by way of providing him with transportation and ... [Walker] had committed a Class A felony ...." Judged solely on its face, as our law requires; United States v. Broce , supra, 488 U.S. at 575–76, 109 S.Ct. 757 ; we perceive no double jeopardy violation. Accordingly, the defendant waived his double jeopardy claim by entering his guilty plea in the present case.

II

The defendant next claims that the court improperly concluded that his sentence did not exceed the statutory maximum. That contention is a proper basis for a motion to correct an illegal sentence pursuant to Practice Book § 43-22 ; see State v. Lawrence , 281 Conn. 147, 155–56, 913 A.2d 428 (2007) ; and one over which our review is plenary. State v. Mungroo , 104 Conn. App. 668, 684, 935 A.2d 229 (2007), cert. denied, 285 Conn. 908, 942 A.2d 415 (2008).

The offense in question, hindering prosecution in the second degree, is a class C felony. General Statutes § 53a-166 (b). The maximum term of imprisonment for a class C felony is ten years. General Statutes § 53a-35a (7). Likewise, the maximum period of probation for a class C felony is five years. General Statutes § 53a-29 (e). In the present case, the court sentenced the defendant to consecutive terms of seven and one-half years incarceration, execution suspended after five years, with five years of probation for each hindering prosecution count, which resulted in a total effective sentence of fifteen years incarceration, execution suspended after ten years, with five years of probation. That sentence plainly comports with the maximum terms specified in §§ 53a-35a (7) and 53a-29 (e).

The defendant nonetheless posits that his period of probation must be included in the calculation of his maximum definite sentence under § 53a-35a. He has provided no legal authority to support that assertion. Moreover, this court recently rejected an identical claim. In State v. Lugojanu , 184 Conn. App. 576, 580, 195 A.3d 1191 (2018), the defendant argued "that his sentence was illegal because it exceeded the statutory limit for a class B felony. Specifically, the defendant claim[ed] that a twenty year sentence of imprisonment followed by a five year term of probation effectively constitutes a twenty-five year sentence [and] thus exceeds" the statutory maximum set forth in § 53a-35a. This court disagreed, stating: "Absent a statutory prohibition, a term of imprisonment with the execution of such sentence of imprisonment suspended after a period set by the court and a period of probation is an authorized sentence. ... The plain language of the statute concerning authorized sentences ... specifies that a defendant can be sentenced to a term of imprisonment, but have that sentence suspended while he serves a period of probation. ... In the present case, the defendant's maximum exposure to imprisonment under such a sentence is twenty, not twenty-five, years. Moreover, § 53a-35a expressly states that the sentence of imprisonment shall be a definite sentence and ... the term shall be ... (1) [f]or a class B felony other than manslaughter in the first degree with a firearm ... a term not less than one year nor more than twenty years .... Furthermore, the statute concerning periods of probation, [§] 53a-29 (d),...