State v. D'ANTONIO

• Citation: 830 A.2d 1196,79 Conn. App. 696
• Decision Date: 30 September 2003
• Docket Number: (AC 23428).
• Parties: STATE OF CONNECTICUT v. LOUIS D'ANTONIO.
• Court: Appellate Court of Connecticut

79 Conn. App. 696

830 A.2d 1196

STATE OF CONNECTICUT v. LOUIS D'ANTONIO.

(AC 23428).

Appellate Court of Connecticut.

Argued June 10, 2003.

Officially released September 30, 2003.

Foti, Dranginis and DiPentima, Js. Adele V. Patterson, assistant public defender, for the appellant (defendant).

Ronald G. Weller, assistant state's attorney, with whom, on the brief, were Timothy J. Liston, state's attorney, and George Ferko, senior assistant state's attorney, for the appellee (state).

Opinion

DIPENTIMA, J.

The defendant, Louis D'Antonio, appeals from the judgments of conviction, rendered after a jury trial, of one count of criminal trespass in the first degree in violation of General Statutes § 53a-107 (a) (1) and two counts of interfering with an officer in violation of General Statutes § 53a-167a (a).¹ The dispositive issue on appeal is whether the trial court committed plain error when it presided over the case after having participated actively in pretrial plea negotiations.² We reverse the judgments of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant's appeal. By way of two substitute informations with separate docket numbers, the defendant was charged with, inter alia, (1) one count of criminal trespass in the first degree in violation of § 53a-107 (a) (1) in connection with an incident that allegedly occurred on December 9, 2001, and (2) two counts of interfering with an officer in violation of § 53a-167a (a) in connection with incidents that allegedly occurred on December 10, 2001. Each of the charges relates to the defendant's allegedly unwanted presence in his mother's home and the defendant's conduct when he was arrested there. The cases ultimately were consolidated for trial.

The defendant was arraigned in those cases on December 11, 2001, and the court appointed a public defender as his counsel. On December 18, 2001, the defendant was arraigned on violation of probation charges stemming from his prior convictions for motor vehicle offenses. At that time, the court appointed the public defender who was handling the defendant's criminal trespass and interfering with an officer cases to represent him in the violation of probation matters. Thereafter, the court held several scheduled proceedings, often involving the criminal trespass and interfering with an officer cases as well as the violation of probation matters.³

On January 15, 2002, the defendant appeared in court with his counsel and indicated that he wanted to represent himself. The court told the defendant that before allowing him to represent himself, it was going to order a competency examination. On February 27, 2002, when the defendant appeared in court with his counsel, the court, Fischer, J., made an uncontested finding of competency based on the competency report in the file.⁴ Again, the defendant raised the issue of self-representation.⁵ The court, Fischer, J., allowed the defendant's counsel to withdraw from the cases involving the charges of criminal trespass in the first degree and interfering with an officer, as well as the violation of probation matters, and, on the same date, the defendant filed a pro se appearance in those cases. On March 20, 2002, the court, Clifford, J., the prosecutor and the defendant engaged in an on the record plea discussion.⁶ The defendant refused any offered plea bargain and insisted on exercising his "right for a trial."

On April 3, 2002, the defendant appeared before Judge Clifford for the violation of probation hearing. Although Judge Clifford recalled having had some discussion with the defendant previously in that case,⁷ he proceeded to canvass the defendant on the issue of self-representation. The defendant indicated that he was "prepared to continue" and to "go forward" with the hearing. Thereafter, the hearing commenced and concluded, and Judge Clifford found that the defendant did violate a condition of his probation and that the beneficial aspects of probation were no longer being served. Judge Clifford sentenced the defendant to the remaining six months of imprisonment previously suspended on the sentence for the underlying motor vehicle offenses.⁸

At the conclusion of the sentencing phase of the violation of probation hearing, there was a brief on the record discussion of the defendant's pending criminal trespass and interfering cases. Judge Clifford again briefly canvassed the defendant on the issue of self-representation and appointed standby counsel to assist the defendant in the trial of the charges of criminal trespass in the first degree and interfering with an officer.⁹ On June 10, 2002, Judge Clifford granted the state's motion to consolidate those cases for trial. On the same date, during a discussion about whether Judge Clifford had signed an arrest warrant in the case, Judge Clifford asked the defendant, "Do you have a problem with me sitting on [this case?]" The defendant responded that he had "[n]o objection."

Thereafter, following jury selection on June 12, 2002, the case proceeded to trial before Judge Clifford on June 12, 13, 14 and 18, 2002. During trial, there was no mention by anyone of Judge Clifford's recusal. On June 18, 2002, the jury returned a guilty verdict on one count of criminal trespass in the first degree in violation of § 53a-107 (a) (1) and two counts of interfering with an officer in violation of § 53a-167a (a). Judge Clifford then sentenced the defendant to a total effective term of two years imprisonment, execution suspended after twenty months, with three years of probation. This appeal followed.

The defendant claims that his trial was unlawfully conducted by the same judge who had conducted plea bargaining on the charges in violation of canon 3(c) (1) of the Code of Judicial Conduct. The defendant argues that this deprived him of his constitutional right to a fair trial pursuant to the fifth and fourteenth amendments to the United States constitution, and article first, § 8, of the constitution of Connecticut. The defendant contends that the trial judge had a responsibility to recuse himself and, thus, although the defendant did not file a motion to recuse the judge, the error is reviewable under either State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989),¹⁰ or the plain error doctrine pursuant to Practice Book § 60-5. The state argues that we should not review the question of the propriety of the judge's participation in the defendant's trial because it is not properly before us, as the defendant failed to file a motion for the judge's disqualification pursuant to Practice Book § 1-23.¹¹ The state maintains that neither plain error review nor review under Golding is appropriate. The state contends, moreover, that by failing to raise the issue of Judge Clifford's disqualification before or during the trial, the defendant consented to the judge's participation under General Statutes § 51-39 (c).¹² Although the state is correct in asserting that this court will not normally review claims that have not been preserved for appeal adequately, we conclude that plain error review is warranted in this case.¹³

"It is well established that plain error review is exercised in only the most limited of circumstances. Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." (Emphasis in original; internal quotation marks omitted.) State v. Falcon, 68 Conn. App. 884, 887, 793 A.2d 274, cert. denied, 260 Conn. 924, 797 A.2d 521 (2002). We conclude that plain error review is warranted "because the impropriety of a court presiding over the trial and sentencing after having actively participated in pretrial plea negotiations is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." Id.;¹⁴ see State v. Washington, 39 Conn. App. 175, 179, 664 A.2d 1153 (1995) (plain error review warranted "because the fairness and integrity of the hearing as well as public confidence in judicial proceedings is involved").¹⁵

"Our Supreme Court has stated that a trial court's failure to follow the mandatory provisions of a statute prescribing trial procedures or to follow a procedural rule constitutes plain error.... Canon 3 [c] (1) of the Code of Judicial Conduct requires a judge to disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned. The reasonableness standard is an objective one. Thus, the question is not only whether the particular judge is, in fact, impartial but whether a reasonable person would question the judge's impartiality on the basis of all the circumstances. . . . Even in the absence of actual bias, a judge must disqualify himself in any proceeding in which his impartiality might reasonably be questioned, because the appearance and the existence of impartiality are both essential elements of a fair exercise of judicial authority." (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Falcon, supra, 68 Conn. App. 887-88.

Although pretrial or plea negotiations play a critical role in the criminal justice system, and the disposition of charges after plea discussions is highly desirable, judicial participation in pretrial plea negotiations frequently has been criticized. State v. Revelo, 256 Conn. 494, 505-506, 775 A.2d 260, cert. denied, 534 U.S. 1052, 122 S. Ct. 639, 151 L. Ed. 2d 558 (2001); see also State v. Falcon, supra, 68 Conn. App. 888; State v. Washington, supra, 39 Conn. App. 180-81. In fact, "many jurisdictions bar judges from active participation in plea negotiations."¹⁶State v. Revelo, supra, 506 & n.22, citing Fed. R. Crim. P. 11 (e) (1), Colo. Rev. Stat. § 16-7-302 (1) (2000), Wash. Rev. Code Ann. § 9.94A.080 (West 1998).

In Connecticut, however, "[i]t is a common practice. . . for the presiding...