State v. Commins

• Decision Date: 20 December 2005
• Docket Number: (SC 17248)
• Citation: 886 A.2d 824,276 Conn. 503
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. JOHN J. COMMINS

276 Conn. 503

886 A.2d 824

STATE OF CONNECTICUT v. JOHN J. COMMINS

(SC 17248)

Supreme Court of Connecticut.

Argued September 21, 2005.

Officially released December 20, 2005.

Sullivan, C. J., and Borden, Katz, Vertefeuille and Zarella, Js.

Darcy McGraw Altman, special public defender, for the appellant (defendant).

Sarah Hanna, special deputy assistant state's attorney, with whom, on the brief, were Walter D. Flanagan, state's attorney, and Kelly Ann Masi, assistant state's attorney, for the appellee (state).

Opinion

SULLIVAN, C. J.

The defendant, John J. Commins, was convicted, after a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a) (1).¹ Thereafter, he pleaded nolo contendere to the charge of being a third offender under § 14-227a (g).² The trial court sentenced the defendant to a term of three years imprisonment, suspended after one year, with three years probation. The court also imposed a $3000 fine, ordered the defendant to perform 200 hours of community service, and permanently revoked the defendant's license pursuant to § 14-227a (g) (3) (C). The defendant then appealed from the judgment of conviction to the Appellate Court, claiming, inter alia, that the trial court improperly had determined that the elements of § 142-27a (a) (1) were substantially similar to the elements of a New York offense for which he had been convicted twice previously. The Appellate Court concluded that the defendant had waived his right to appeal from the judgment of conviction under § 14-227a (g) when he pleaded nolo contendere to the charge of being a third offender, and affirmed the judgment of the Appellate Court. State v. Commins, 83 Conn. App. 496, 498, 512-14, 850 A.2d 1074 (2004). We granted the defendant's petition for certification to appeal limited to the following issue: "Did the Appellate Court properly conclude that the defendant had waived his right to challenge the trial court's determination that he was a third offender pursuant to General Statutes § 14-227a (g)?" State v. Commins, 271 Conn. 905, 859 A.2d 564 (2004). We affirm the judgment of the Appellate Court.

The Appellate Court's opinion sets forth the following facts and procedural history. The jury reasonably could have found that "[e]arly in the morning of August 16, 2002, Officer Steven Santucci of the Newtown police department was on patrol on Route 34 in Newtown and observed the defendant, who was driving a truck, approach an intersection, enter a left turn only lane and activate the truck's left turn signal. Instead of turning left at the intersection, however, the defendant continued through the intersection, and drove along the median line and into the oncoming traffic lane. On the basis of those observations, Santucci initiated a traffic stop.

"During the traffic stop, the defendant informed Santucci both that he was on his way home and that he was coming from his home. While speaking with the defendant, Santucci detected the odor of alcohol on his breath. In view of the defendant's erratic driving and the odor of alcohol, Santucci proceeded to administer three field sobriety tests to the defendant.

"The first test administered was the horizontal gaze nystagmus test. Nystagmus is the inability of the eyes to maintain visual fixation on a stimulus when the eyes are turned to the side, often resulting in a lateral jerking of the eyeball. . . . The premise of the horizontal gaze nystagmus test is that as alcohol consumption increases, the closer to the midline of the nose the onset of nystagmus occurs. To administer the test, the officer positions a stimulus approximately twelve to eighteen inches away from and slightly above the subject's eyes. The stimulus, usually a pen or the officer's finger, is then moved slowly from the midline of the nose to maximum deviation, the farthest lateral point to which the eyes can move to either side. The officer observes the subject's eyes as he tracks the stimulus and looks for six clues, three for each eye, to determine whether the subject passes or fails the test. . . . A finding of four clues indicates failure of the test and is a sign of intoxication. Santucci testified that the defendant possessed all six clues and that those results indicated that the defendant was under the influence of alcohol.

"Santucci also administered the walk and turn test and the one-leg stand test. Santucci testified that the defendant's performance on both tests indicated that he was under the influence of alcohol.

"On the basis of the defendant's performance on the three tests, his erratic driving and the odor of alcohol on his breath, Santucci placed the defendant under arrest and transported him to the police station, where the defendant refused to submit to a breath test. The defendant subsequently was charged by information with driving while under the influence of intoxicating liquor in violation of § 14-227a (a) (1)." (Citations omitted.) State v. Commins, supra, 83 Conn. App. 498-500.

"[T]he state [also] charged the defendant under a part B information as a third offender on the basis of his two prior convictions in New York, one in 1984 and the other in 1993, for operating a motor vehicle while under the influence of alcohol or drugs in violation of N.Y. Vehicle & Traffic Law § 1192 (McKinney 1996). Following the jury's verdict finding the defendant guilty of operating a motor vehicle while under the influence of intoxicating liquor, the court addressed the part B information. After hearing argument on whether the New York convictions occurred within the ten year period set forth in § 14-227a (g) (3), the court concluded that the convictions qualified for consideration.³ At that time, the defendant indicated his intention to enter a plea of nolo contendere to the part B information. On the plea form, signed by the defendant on November 8, 2002, the defendant did not check the box indicating that the plea was conditional. Also, the court fully canvassed the defendant with regard to the plea and advised him of all relevant rights. The court found that the defendant had entered his plea knowingly, intelligently and voluntarily with the assistance of competent counsel, but the court did not accept the plea at that time.

"On January 10, 2003, following a presentence investigation hearing at which the court again heard argument on the issue of whether the defendant's New York convictions qualified as `prior convictions' for purposes of § 14-227a (g), the court determined that the essential elements of the New York statute were substantially the same as § 14-227a (a) (1).⁴ The court then accepted the defendant's nolo contendere plea and sentenced the defendant as a third offender." State v. Commins, supra, 83 Conn. App. 512-13. The defendant appealed from the judgment to the Appellate Court, which affirmed the trial court's judgment. This certified appeal followed.

The defendant claims on appeal that when he entered the plea of nolo contendere, he intended to admit only that he had two prior convictions in New York. He did not intend to admit that the elements of the New York offenses were substantially similar to the elements of § 14-227a (g), and, in fact, argued that the elements of the New York and Connecticut offenses were not substantially the same. He claims that, under these circumstances, he is entitled to appellate review of the trial court's ruling that the essential elements of the offenses were substantially similar. The defendant makes four arguments in support of this claim. First, he argues that the trial court lacked subject matter jurisdiction to accept his nolo contendere plea because: (1) he was deprived of his constitutional right to have a jury determine whether the state had proven beyond a reasonable doubt an essential element of § 14-227a (g); and (2) part B of the information failed to inform him that the state needed to prove that the elements of the New York and Connecticut offenses were substantially similar. Second, he argues that the plea was not knowing, voluntary, and intelligent because: (1) he was not informed that he was waiving his right to contest the "substantially similar" issue when he entered his plea; (2) part B of the information did not allege that the elements of the New York and Connecticut offenses were substantially the same; and (3) he was not informed that, as a third offender, he would be exposed to additional punishment after pleading nolo contendere. Third, he argues that the plea was conditional. Fourth, he argues that, even if we conclude that the foregoing arguments are without merit, there is good cause for this court to review the trial court's ruling. We disagree.

At the outset we address the standard of review. Whether the Appellate Court properly concluded that the defendant had waived his right to challenge the trial court's determination that he was a third offender is a question of law. Our review, therefore, is plenary. Duperry v. Solnit, 261 Conn. 309, 318, 803 A.2d 287 (2002).

Before addressing the substance of the defendant's claims, we provide a brief overview of Connecticut's law pertaining to nolo contendere pleas. A nolo contendere plea has the same effect as a guilty plea, but a nolo contendere plea cannot be used against the defendant as an admission in a subsequent criminal or civil case. State v. Madera, 198 Conn. 92, 97 n.5, 503 A.2d 136 (1985). "As a general rule, an unconditional plea of guilty or nolo contendere, intelligently and voluntarily made, operates as a waiver of all nonjurisdictional defects and bars the later assertion of constitutional challenges to pretrial proceedings." (Emphasis in original.) Id., 97.

There are three circumstances, however, under which a defendant who pleads nolo contendere will not lose his or her right to appeal. First, if the defendant enters a conditional nolo contendere plea pursuant to General Statutes...