State v. Coleman

• Decision Date: 19 August 1997
• Docket Number: No. 15468,15468
• Citation: 242 Conn. 523,700 A.2d 14
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Charles COLEMAN.

Page 14

700 A.2d 14

242 Conn. 523

STATE of Connecticut v. Charles COLEMAN.

No. 15468.

Supreme Court of Connecticut.

Argued March 26, 1997.

Decided Aug. 19, 1997.

Temmy Ann Pieszak, Supervisory Assistant Public Defender, for appellant (defendant).

Harry Weller, Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, and John Waddock, Assistant State's Attorney, for appellee (State).

Before CALLAHAN, C.J., and NORCOTT, KATZ, PALMER and McDONALD, JJ.

PALMER, Associate Justice.

The principal issue raised by this appeal is whether a defendant who has been sentenced under the terms of a plea agreement but who later is permitted to withdraw his guilty plea and allowed to proceed to trial is entitled, following his conviction after trial, to an explanation from the trial court setting forth its reasons for imposing a greater sentence than had been imposed under the plea agreement. Following a court trial, the defendant, Charles Coleman, was convicted of four counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a)(1), ¹ burglary in the first degree in violation of General Statutes § 53a-101 (a)(2), ² burglary in the second degree in violation of General Statutes § 53a-102, ³ unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a), ⁴ and robbery in the third degree in violation of General Statutes §§ 53a-136 (a) and 53a-133. ⁵ The trial court rendered judgment sentencing the defendant to an effective term of imprisonment of 110 years. ⁶ The defendant appealed to the Appellate Court, which affirmed his convictions. State v. Coleman, 41 Conn.App. 255, 675 A.2d 887 (1996). ⁷ We granted the defendant's petition for certification to appeal from the Appellate Court, limited to the following issues: (1) "Did the Appellate Court improperly disregard the state's concession that, in this case, the defendant should not receive multiple punishment for his two burglary convictions?" and (2) "Whether, under our supervisory powers or the state constitution, we should adopt the presumption set forth in North Carolina v. Pearce, 395 U.S. 711 [89 S.Ct. 2072, 23 L.Ed.2d 656] (1969), pertaining to the imposition of a greater sentence after having successfully attacked his first conviction?" State v. Coleman, 237 Conn. 931, 677 A.2d 1372 (1996). Although we conclude that the defendant's second degree burglary conviction must be vacated, ⁸ we otherwise affirm the judgment of the Appellate Court.

The relevant facts and procedural history are set forth in the opinion of the Appellate Court. "On August 12, 1986, the defendant was arraigned on seven charges stemming from a burglary, robbery and repeated sexual assaults that occurred in the early morning of March 4, 1986. An agreement was reached in which the defendant pleaded guilty under the Alford doctrine ⁹ to the charges, as well as to charges from eight other files. Prior to sentencing, the defendant sought to withdraw all of his pleas. The trial court allowed the defendant to withdraw his plea on one count from another file, but denied his motion to withdraw his pleas in this case. The [trial court, Ronan, J.,] sentenced [the defendant] to thirty-five years in prison on all charges from all nine files.

"On appeal, [the Appellate Court] affirmed the trial court's refusal to allow the defendant to withdraw his plea. State v. Coleman, 17 Conn.App. 307, 552 A.2d 442 (1989). Subsequently, the defendant filed a petition for habeas corpus relief in federal court claiming that his plea canvass was defective. The United States District Court for the District of Connecticut vacated the defendant's pleas and remanded the matter for trial. ¹⁰ ... The United States Court of Appeals for the Second Circuit subsequently affirmed the decision of the District Court. ¹¹

"After pleading not guilty to all counts, the defendant elected to be tried by the court.... The trial court [Fracasse, J.] found the defendant guilty on seven of the eight counts as charged. On the other count, the court found the defendant guilty of the lesser included offense of burglary in the second degree. The defendant received an effective sentence of 110 years in prison. ...

"The trial court found the following ... facts [relative to its judgment of conviction]. The victim resided alone in a New Haven apartment. During the early morning of March 4, 1986, she was asleep with her glasses on and wearing a nightgown. Between 3:30 and 4 a.m., the defendant used a sharp cutting tool to remove a pane of glass from one of the victim's bedroom windows and entered her apartment. The victim awoke with the defendant straddling her. The defendant held his hand over the victim's mouth and told her not to move if she did not want to get hurt. The defendant told her to take off her glasses and she did so. The defendant forced her to commit fellatio as he stood next to her bed and also forced her to engage in vaginal intercourse.

"The defendant then demanded the victim's money. She had cashed her paycheck the previous day and had separated the money into envelopes, each marked for the purpose of paying various bills. The defendant ordered the victim to take the money from the envelopes and she did so. The victim estimated that she had between $500 and $600. The defendant went through the envelopes and moved them about on the bed. The defendant asked the victim if she had any jewels or furs, and she replied in the negative. The defendant also asked her if she had a car, and she replied that she had a Datsun; he said he did not want the car.

"The defendant then ordered the victim to get on her hands and knees on the bed, and he engaged in anal intercourse. He also forced her to engage again in fellatio. Before leaving, the defendant forced the victim onto her stomach and tied her up with shoelaces that he had brought with him. The defendant cut the victim's telephone wires inside the apartment and left through a window and down a fire escape.

"After waiting a short time to be certain that the defendant was gone, the victim freed herself. After discovering that her telephone wires had been cut, she called the police from a neighbor's telephone. When the police arrived they took the victim to the police station where she gave a statement. The police then took the victim to a hospital for a physical examination. The police later identified the defendant through a partial palm print that he had left on one of the envelopes in the apartment that had contained the victim's money." (Citation omitted; internal quotation marks omitted.) State v. Coleman, supra, 41 Conn.App. at 259-61, 675 A.2d 887. Additional facts will be set forth as necessary.

On appeal to this court, the defendant claims that he is entitled to: (1) vacation of his second degree burglary conviction; and (2) resentencing on his seven other convictions. We agree with the defendant's first claim, but we reject his second claim.

I

The first certified question is whether the Appellate Court improperly rejected the state's concession that his convictions for both first degree burglary and second degree burglary constitute inappropriate multiple punishments for the same conduct. We need not reach that precise question because we conclude that the trial court and the Appellate Court improperly determined that second degree burglary under § 53a-102 is a lesser included offense of first degree burglary under § 53a-101 (a)(1). ¹²

The following additional facts are relevant to our resolution of this issue. The state, in a third substitute information filed shortly before the commencement of trial, charged the defendant with, inter alia, one count of burglary in the first degree in violation of § 53a-101 (a)(1) and a second count of burglary in the first degree under § 53a-101 (a)(2). The defendant moved to strike the count alleging a violation of § 53a-101 (a)(1), claiming that that charge had been added improperly on the eve of trial and, further, that because that charge had not been included in the information to which the defendant originally had pleaded guilty, its inclusion in the third substitute information gave rise to an unrebutted presumption of vindictiveness under Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). The state responded that it did not intend that the defendant was to be punished twice for the two burglary counts, stating, instead, that "[w]e are not dealing with a different crime, we are dealing with two alternative means of committing [the same] crime." ¹³ In light of the state's representations, the trial court denied the defendant's motion to strike.

At the conclusion of the trial, the court found the defendant guilty of burglary in the first degree in violation of § 53a-101 (a)(2), but it acquitted the defendant of burglary in the first degree in violation of § 53a-101 (a)(1). After concluding that under the circumstances of this case, burglary in the second degree under § 53a-102 is a lesser included offense of burglary in the first degree under § 53a-101 (a)(1), the trial court also found the defendant guilty under § 53a-102. The court then imposed a term of imprisonment of ten years for the conviction of second degree burglary in violation of § 53a-102, the sentence on that offense to run concurrently with the sentences imposed on the other seven counts.

On appeal to the Appellate Court, the defendant claimed that: (1) his conviction for second degree burglary under § 53a-102 must be reversed because it is not a lesser included offense of § 53a-101 (a)(1); and (2) in view of the state's representations to the trial court, his convictions for first degree burglary and second degree burglary violate principles of double jeopardy. Although the state maintained that § 53a-102 is a lesser included offense of § 53a-101 (a)(1), it conceded, without elaboration, that the defendant's convictions for first and second degree...