State v. Brown

• Decision Date: 27 August 2013
• Docket Number: No. 33696.,33696.
• Citation: State v. Brown, 145 Conn.App. 174, 75 A.3d 713 (Conn. App. 2013)
• Parties: STATE of Connecticut v. Jonathan BROWN.
• Court: Connecticut Court of Appeals

145 Conn.App. 174

75 A.3d 713

STATE of Connecticut

v.Jonathan BROWN.

No. 33696.

Appellate Court of Connecticut.

Argued March 5, 2013.

Decided Aug. 27, 2013.

David V. DeRosa, assigned counsel, for the appellant (defendant).

Bruce R. Lockwood, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Marc G. Ramia, senior assistant state's attorney, for the appellee (state).

GRUENDEL, ROBINSON and BORDEN, Js.

BORDEN, J.

The defendant, Jonathan Brown, appeals from the judgment of conviction, rendered by the trial court, of assault in the third degree of an elderly person in violation of General Statutes § 53a–61a and the judgment finding him in violation of his probation in violation of General Statutes § 53a–32. On appeal, the defendant claims that the court (1) improperly failed to sentence him in accordance with the conditions of a Garvin agreement; ¹ and (2) violated his right to due process by failing to provide an evidentiary hearing on whether he breached such agreement. We affirm the judgments of the trial court.

Following a domestic dispute, the defendant was charged with assault in the third degree in violation of General Statutes § 53a–61, assault in the third degree of an elderly person in violation of § 53a–61a, interfering with an officer/resisting arrest in violation of General Statutes § 53a–167a, threatening in the second degree in violation of General Statutes § 53a–62, breach of the peace in the second degree in violation of General Statutes § 53a–181, disorderly conduct in violation of General Statutes § 53a–182, and two counts of violation of probation in violation of § 53a–32. The defendant and the court then entered into a Garvin agreement pursuant to which he pleaded guilty to assault in the third degree of an elderly person and admitted to two counts of violation of probation.² Ultimately, the court found that the defendant had violated the Garvin agreement and sentenced him to eighteen months incarceration on the charge of assault in the third degree of an elderly person and on one count of violation of probation. This appeal followed.

The defendant's compliance with the conditions of the Garvin agreement would have resulted in a fully suspended sentence and a different conviction, namely, assault in the third degree in violation of § 53a–61, instead of assault in the third degree of an elderly person in violation of § 53a–61a. Thereafter, the court determined that the defendant violated the Garvin agreement by failing to abide by the rules and regulations of Evolve—a fifty-two session behavior modification program for male offenders of domestic violence. Accordingly, the defendant was sentenced to eighteen months imprisonment.³

The record reveals the following undisputed facts and procedural history. At the plea hearing on October 9, 2009, the state set forth the conditions of the Garvin agreement, including the requirement that the defendant “complete the Evolve program.” ⁴ The court, A. Hadden, J., in approving the proposed Garvin agreement, clarified its terms, expressly stating, “ should you fail to complete the Evolve program, should you violate any of the rules and regulations of that program ... the court [could] impose the sentence of twenty-seven months to serve with a one year mandatory minimum sentence.” (Emphasis added.) In the subsequent months, the defendant accrued multiple unexcused absences from the Evolve program despite the court's frequent reminders to comply with its rules and regulations.

For instance, on February 19, 2010, when defense counsel reported that the defendant had accrued one unexcused absence, Judge Hadden warned him, “[m]ake sure you comply with the requirements of the program, sir.” Thereafter, the defendant accrued three additional unexcused absences and was suspended from the Evolve program. On April 30, 2010, the state filed a motion seeking to have the defendant sentenced on the basis of this suspension. ⁵ Judge Hadden remarked that he was willing to sentence the defendant to the one year mandatory minimum, but continued the matter upon the defendant's request.

Thereafter, at a hearing before the court, Connors, J., on July 16, 2010, the state accorded the defendant another opportunity to satisfy the conditions of the Garvin agreement through readmission into the Evolve program. Addressing the defendant, Judge Connors stated, “[y]ou have to abide by all of the program terms and conditions, including ... attendance.... In the event that you are noncompliant you will be going to prison for twenty-seven months....” The defendant indicated that he understood. At a subsequent hearing, the state reported that the defendant had accumulated two additional absences from the Evolve program. Judge Connors reminded him, “[m]ake sure you keep up with the classes....”

On January 28, 2011, at a hearing before the court, Wahla, J., the state reported that the defendant once again had been suspended from the Evolve program, this time due to a fourth unexcused absence. Defense counsel noted that, in regard to the defendant's third and fourth unexcused absences, the defendant was present at the meetings but issues arose concerning his conduct.

On February 4, 2011, the state moved for sentencing because of the defendant's second suspension from the Evolve program for failure to comply with its rules and regulations. At a presentencing bond hearing, Judge Wahla read a letter, dated February 4, 2011, detailing the factors leading to the defendant's second suspension: “[The defendant] acknowledged to the male facilitator that he was drinking before ... group. [The defendant] refused to leave the Evolve office at one point and made a nonverbal hand gesture toward the male facilitator as though he was pointing a gun at him. Over the course of [the defendant's] time in the program he has been given several opportunities and chances to comply with the program rules.” The defendant attempted to explain the circumstances leading to this final absence, but did not request an evidentiary hearing on the matter.

Prior to sentencing, the defendant was readmitted into the Evolve program. At another presentencing hearing on March 25, 2011, Judge Wahla noted that the Evolve program had sent him a letter stating that the defendant had completed the program. The defendant did not request an evidentiary hearing regarding whether his completion of the Evolve program altered the state's repeated contention that he had violated the Garvin agreement.

At sentencing on May 13, 2011, the state argued that the defendant's frequent absences, resulting in two separate suspensions from the Evolve program, violated the Garvin agreement. Rather than requesting the twenty-seven month maximum, however, the state limited its sentencing request to twenty months, in recognition of the defendant's eventual completion of the Evolve program. Defense counsel also recognized that the defendant's history of absences from the Evolve program did not comport with the Garvin agreement, noting, “[t]his is somebody who unfortunately did pick up too many absences in the waning days of his program.” Nevertheless, defense counsel asked the court to consider the defendant's ultimate completion of the Evolve program in rendering its sentencing decision; he did not, however, argue that the defendant had complied with the Garvin agreement. The court imposed a total sentence of eighteen months imprisonment, including the one year mandatory minimum sentence on the charge of assault in the third degree of an elderly person in violation of § 53a–61a, and six months on the charge of violation of probation in violation of § 53a–32.

I

The defendant first claims that the court improperly found that he violated the conditions of the Garvin agreement.⁶ Specifically, the defendant contends that he was not required to abide by the rules and regulations of the Evolve program, but instead, that he satisfied the agreement by ultimately completing the program. We disagree.

Our analysis of this claim is twofold. We first determine under plenary review whether the terms of the agreement required the defendant to comply with the Evolve program's rules and regulations. See State v. Stevens, 278 Conn. 1, 7–8, 895 A.2d 771 (2006). Second, we determine whether the trial court's finding that the defendant violated the Garvin agreement when he was twice suspended from the Evolve program was clearly erroneous. Id., at 10, 895 A.2d 771.

We begin our inquiry by examining the terms of the Garvin agreement. “The validity of plea bargains depends on contract principles.... When the contract language relied on by the court is definitive, the interpretation of the contract is a matter of law and our review is plenary.” (Citations omitted; internal quotation marks omitted.) Id., at 7–8, 895 A.2d 771. In setting forth the terms of a Garvin agreement, “the trial court judge bears an affirmative, nondelegable duty to clarify the terms....” (Internal quotation marks omitted.) State v. Rosado, 92 Conn.App. 823, 827, 887 A.2d 917 (2006). Thus, we look to whether the terms of the Garvin agreement were “clear and unambiguous so as to put the defendant on notice that failing to” abide by the Evolve program's rules and regulations would violate the agreement. Id.

On October 9, 2009, Judge Hadden set forth the terms of the plea agreement as follows:

“The Court: You ... understand, however, should you violate any of the terms of this plea, should you fail to complete the Evolve program, should you violate any of the rules and regulations of that program ... the state will recommend either an increase in bond and immediate incarceration in lieu of bond or that the court impose the sentence of twenty-seven months to serve with a one year mandatory minimum sentence. You understand all these things?

“The Defendant: Yes.

“The Court: And you agree to all those things?

“The Defendant: Yes.” (Emphasis added...