State v. Cazzetta

• Decision Date: 15 August 2006
• Docket Number: No. 26692.,26692.
• Citation: 97 Conn.App. 56,903 A.2d 659
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. John CAZZETTA.

Page 659

903 A.2d 659

97 Conn.App. 56

STATE of Connecticut v. John CAZZETTA.

No. 26692.

Appellate Court of Connecticut.

Argued March 30, 2006.

Decided August 15, 2006.

John Cazzetta, pro se, the appellant (defendant).

Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Ronald Dearstyne, senior assistant state's attorney, for the appellee (state).

DiPENTIMA, GRUENDEL and PELLEGRINO, Js.

DiPENTIMA, J.

The pro se defendant, John Cazzetta, appeals from the judgment of the trial court denying his motion to correct his sentence. On appeal, the defendant claims that because the sentencing court improperly imposed a sentence that exceeded his plea agreement, the court abused its discretion in denying his motion. We affirm the judgment of the trial court.

The defendant was charged with, inter alia, assault of public safety personnel in violation of General Statutes § 53a-167c and operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a. On April 9, 2003, the defendant pleaded guilty to both counts under the Alford doctrine¹ before the court, Hon. Bernard D. Gaffney, judge trial referee. At the outset of the hearing, when the state informed the court of the plea agreement, the court sought clarification.² The court then canvassed the defendant to ensure that he had discussed the plea agreement with his attorney, that he understood the agreement and that he understood that by pleading guilty under the Alford doctrine he would surrender certain constitutional rights. The court also questioned the defendant about whether he was entering the pleas voluntarily and of his free will. The defendant answered all of the court's questions in the affirmative, and his attorney did not object.

On July 31, 2003, the court, Bentivegna, J., imposed a "[t]otal effective sentence, eight years, execution suspended after four years to serve, three years probation."³ The defendant made no objection at the time of sentencing and did not file his motion to correct the sentence until April 12, 2005, almost two years later. On June 1, 2005, the court, Cofield, J., conducted an evidentiary hearing and denied the motion. On June 22, 2005, the court held an evidentiary hearing on the defendant's motions to reargue, for articulation and for the waiver of fees and costs, and denied the motions, with the exception of certain fees and costs of transcripts. This appeal followed.

The defendant's sole claim on appeal is that the court improperly denied his motion to correct his sentence, which he claims was imposed in an illegal manner.⁴ Specifically, the defendant argues that the sentence imposed did not correspond to his plea agreement, which consisted of a total effective sentence of no more than four years. We disagree.

At the outset, we note that Practice Book § 43-22 provides the procedure by which a court may exercise its jurisdiction to decide this issue: "The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner." Accordingly, we set forth the well settled standard of review. "We will reverse the court's denial of the petitioner's motion to correct the sentence only on a showing that the court abused its discretion. . . . Furthermore, in reviewing the petitioner's claims, we do not question credibility determinations reached by the court, for the trial court is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. . . . Additionally, the petitioner can prevail in his challenge to the trial court's factual findings only if those findings are clearly erroneous." (Citations omitted; internal quotation marks omitted.) State v. Dixson, 93 Conn.App. 171, 176-77, 888 A.2d 1088, cert. denied, 277 Conn. 917, 895 A.2d 790 (2006).

The court considered the defendant's representations and found that he had not met his burden of persuading the court that he was unaware of the suspended sentence and probationary period beyond the four year incarceration. In reaching that conclusion, the court relied heavily on the transcripts of the plea canvass and sentencing hearing.⁵ At the time of the plea, the defendant had answered in the affirmative the court's questions regarding whether he understood the plea agreement, whether it was entered knowingly and voluntarily, and whether he had discussed it with his attorney. He also had answered negatively the court's questions of whether he was surprised by the state's representation of the plea agreement or whether he had been forced or pressured into entering a guilty plea. At the time of sentencing, when given the opportunity, neither the defendant nor his attorney posed any questions, nor did either indicate at any time during the hearings or shortly thereafter that the sentence imposed was inconsistent with the plea agreement.⁶

The defendant principally relies on State v. Reid, 204 Conn. 52, 526 A.2d 528 (1987), and Miller v. Commissioner of Correction, 29 Conn.App. 773, 617 A.2d 933 (1992).⁷ Although the cases are relevant to the issue on appeal, the defendant's reliance is misplaced. In Reid, the defendant pleaded guilty to two charges and, in exchange for the plea, entered into an agreement with the state for a sentence of fifteen to eighteen years incarceration, with the right to argue for less at sentencing. State v. Reid, supra, at 53, 526 A.2d 528. At the time of sentencing, a judge different from the one who had accepted the plea sentenced the defendant to twenty years incarceration on each count, to run concurrently, suspended after ten years, along with five years probation. Id. The defendant appealed from the judgment, and our Supreme Court held that "[t]he sentence imposed, while it carried a lesser period of immediate incarceration than the sentence recommended by the state's attorney, potentially required the defendant to serve five years more than he had bargained for. Further, the plea agreement did not include a period of probation and there is nothing to indicate that a period of probation had been agreed to or anticipated by the defendant." Id., at 55, 526 A.2d 528 Reid is distinguishable from the present case, however, as the court here correctly found, because Judge Gaffney, in taking the defendant's plea in this case, clearly defined the terms of the plea agreement and underscored the fact that the four year maximum referred to only the committed portion of the sentence. Further, the court reasonably concluded that because neither the defendant nor his attorney disputed the sentence at the time it was imposed, the probationary period had not been a surprise to the defendant.

In Miller v. Commissioner of Correction, supra, 29 Conn.App. at 773, 617 A.2d 933, the defendant entered into a plea agreement that provided for a maximum of three years probation. Id., at 774, 617 A.2d 933. The court, however, imposed a period of four years probation. Id., at 775, 617 A.2d 933. Claiming that the sentence he received exceeded the terms of the plea agreement, the defendant brought a petition for a writ of habeas corpus. Id. This court affirmed the habeas court's decision that the trial court improperly imposed a sentence of four years probation when the plea agreement had designated a probationary period of only three years. Id., at 780, 617 A.2d 933. Miller is distinguishable because in that case, the trial court exceeded the probationary period that specifically was included in the plea agreement by one year. In this case, however, the plea agreement was silent as to the duration of probation that would be included with the "cap of four years on the committed portion."

The defendant waited more than twenty months after the sentencing hearing to file his motion to correct. The defendant in State v. Winer, 69 Conn.App. 738, 796 A.2d 491, cert. denied, 261 Conn. 909, 806 A.2d 50 (2002), similarly waited more than fourteen months before he sought to vacate the judgments and withdraw his pleas of nolo contendere. Id., at 743-44, 796 A.2d 491. "A swift change of heart is itself strong indication that the plea was entered in haste and confusion. . . . A period of fourteen months can hardly be considered a swift change of heart. Such a substantial delay in time between the defendant's sentencing and his challenge of the sentence's validity tends to reveal that the defendant expected a term of probation when he was sentenced." (Citation omitted; internal quotation marks omitted.) Id., at 750, 796 A.2d 491.

The defendant maintains, and we agree, that Practice Book § 43-22 does not provide for a time restriction on a court's authority to correct a sentence imposed in an illegal manner. Nevertheless, the court properly considered the more than twenty months between the sentence and the filing of the motion to correct in determining the defendant's credibility: "[Y]es, I have the jurisdiction, but am I going to...