State v. Davis

• Decision Date: 14 June 1983
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Craig M. DAVIS.

Page 947

461 A.2d 947

190 Conn. 327

STATE of Connecticut v. Craig M. DAVIS.

Supreme Court of Connecticut.

Argued Feb. 9, 1983.

Decided June 14, 1983.

James F. Bingham, Stamford, with whom, on brief, was Paul D. Shapero, Stamford, for appellant (defendant).

Frank S. Maco, Asst. State's Atty., with whom, on brief, was Donald A. Browne, State's Atty., for appellee (state).

Before PETERS, HEALEY, PARSKEY, SHEA and GRILLO, JJ.

ARTHUR H. HEALEY, Associate Justice.

On December 8, 1981, the defendant, Craig Davis, entered a plea of nolo contendere to one count of second degree kidnapping in violation of General Statutes § 53a-94(a), one count of first degree sexual assault in violation of General Statutes § 53a-70(a) and one count of third degree robbery in violation of General Statutes § 53a-135(a). The Superior Court, McKeever, J., accepted Davis' plea on that date. At the time of entering his plea, Davis also filed a motion, pursuant to General Statutes § 17-244, ¹ to be examined at the Whiting Forensic Institute. This motion was granted by the court, and sentencing was postponed until after the institute had filed its report with the court.

The sentencing hearing was held on January 22, 1982. The report from the institute was received by Davis' counsel on January 21, 1982, one day before the hearing. The report concluded that "the present examination provides no evidence of the need for additional diagnostic assessment and/or in-patient treatment at the mental health facility at this time. It is, therefore, the opinion of these examiners that this young man [Davis] does not meet the statutory criteria for commitment (under C.G.S. 17-244[a]." At the hearing, Davis requested that sentencing be continued for one week in order to bring in the two people who signed the report from the Whiting Forensic Institute as well as a doctor from the Yale Psychiatric Center who had treated Davis. Davis' counsel stated to the court that he had planned to bring these three people to the hearing but was unable to do so because the report was only received the day before, leaving him no time to contact the individuals. The state objected to the request for a continuance on two grounds. First, it claimed that the report was unequivocal in its opinion, rendering it unnecessary to have a hearing. It claimed further that there was no authority under the statute to conduct such a hearing. The court, Ment, J., denied the request for a continuance without stating its grounds. After hearing a number of witnesses for both the state and the defendant testify as to the most appropriate sentence, the court imposed a total effective sentence of not less than ten nor more than twenty years to serve.

On February 1, 1982, Davis appealed his sentence to this court. On the same day, he moved in the trial court to reopen judgment and for reasonable bail pending appeal. The defendant alleged four grounds in the motion to reopen: the court's previous refusal to grant a continuance; the court's acceptance of the report from the Whiting Forensic Institute, when the report made no mention in its recommendation regarding the appropriateness of outpatient care as mandated by General Statutes § 17-244; the court's failure to hold a hearing on the report pursuant to General Statutes § 17-245, ² which mandates such a hearing when confinement is recommended; and, finally, the court's imposition of the sentence which he claimed, under the present state of the record, amounted to cruel and unusual punishment. On February 17, 1982, a hearing on the matter was held.

In regard to the motion to reopen the judgment, the defendant claimed then for the first time that the Whiting report did not comply with the requirements of the statute because it did not make any recommendation regarding the propriety of ordering that Davis be placed on probation. ³ The defendant went on to claim that this failure constituted a denial of his due process rights. He also claimed then for the first time that his due process rights had been violated by the trial court's refusal to grant a continuance in order to have a hearing on the recommendation contained in the report filed by the institute. Finally, he claimed, also for the first time, that the statute violated his constitutional rights because General Statutes § 17-245 allegedly allowed the state to remonstrate against the report, without making a similar provision for the defendant. After the state noted its objection to the motion to reopen, again based upon the unequivocal nature of the report, the court asked both parties whether they wished to address the issue of the court's authority to reopen the matter. Counsel for the defendant replied that "under the general authority in the Superior Court, any judgment may reopened within a reasonable period of time." The court then denied the motion to reopen the judgment. Davis amended his preliminary statement of issues so as to include this decision. ⁴

On appeal, the defendant has briefed two issues. ⁵ As stated by the defendant, the first issue is whether "due process requires that at the time of sentencing, the accused be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross examine and to offer evidence of his own." Although not stated explicitly, it is evident from the defendant's brief, as well as from that of the state, that the defendant has included in this issue the claimed failure of the report to make a recommendation regarding probation. ⁶ The second issue briefed by the defendant is whether "the failure [of General Statutes § 17-245(b) ] to mandate a full hearing is a capricious classification which requires that the statute ... be held unconstitutional." Finally, we note that the "due process provisions of the federal [U.S. Const., amend. XIV § 1] and Connecticut [Conn. Const., art. I § 8] constitutions have a common meaning so as to permit us to treat the questions on appeal as a single issue." (Citations omitted.) State v. Pickering, 180 Conn. 54, 55 n. 1, 428 A.2d 322 (1980).

Prior to considering the merits of the defendant's claims, we must review the procedural posture in which this case has come before us. Specifically, we must address the authority of the trial court to reopen the judgment in this case.

We begin by noting that pursuant to Practice Book § 3063, this court is not bound to consider any claim unless it was distinctly raised in the trial court. The only claim made at the time of sentencing on January 22, 1982, was the court's refusal to grant a continuance in order to hold a hearing on the report filed by the Whiting Forensic Institute. No constitutional basis for this hearing on the Whiting report was advanced at that time. Furthermore, there is no statutory requirement that such a hearing be held. Therefore, the trial court did not err in refusing to grant a continuance to hold this hearing.

The first time the issues briefed in this appeal were brought to the attention of the trial court was at the hearing on the motion to reopen the judgment on February 17, 1982. No authority was cited by the defendant as to the trial court's authority to act at that time. Rather, at the hearing, counsel for the defendant merely alluded to "the general authority in the Superior Court...." Overlooked by both parties is the fact that there are two Practice Book rules on point. Section 934 provides: "At any time during the period of a definite sentence, the judicial authority may, after a hearing and for good cause shown, reduce the sentence or order the defendant discharged or released on probation or on a conditional discharge for a period not to exceed that to which he could have been sentenced originally." Section 935 provides: "The judicial authority who sentenced the defendant may, within ninety days, correct an illegal sentence or other illegal disposition, or he may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner."

The sentence imposed by the trial court in this case was not illegal. Pursuant to General Statutes §§ 53a-35 and 53a-37, the length of the sentence was within the permissible range for the crimes charged. See Green v. Warden, 178 Conn. 634, 639, 425 A.2d 128 (1979); State v. Kreminski, 178 Conn. 145, 153, 422 A.2d 294 (1979); State v. Williams, 173 Conn. 545, 558, 378 A.2d 588 (1977); compare State v. Campbell, 180 Conn. 557, 429 A.2d 960 (1980); Salsbury v. Robinson, 30 Conn.Sup. 144, 305 A.2d 286 (1972); Wiggins v. Robinson, 30 Conn.Sup. 54, 299 A.2d 189 (1972); Liberti v. York, 28 Conn.Sup. 9, 246 A.2d 106 (1968). Because the sentence was not illegal, the court's authority to reopen the judgment was limited by the application of Practice Book § 934. That section permits the trial court, in its discretion, to reduce or modify the sentence ⁷ only after the defendant has shown good cause for taking such action. This court will find reversible error, therefore, only if it can be demonstrated that it was an abuse of discretion to find that the standard had not been met in this case.

Although "good cause" might have been shown if the defendant had established that the sentencing proceedings on January 22, 1982, violated his constitutional rights, we cannot conclude that any such violation occurred in this case. Therefore, we affirm the decision of the trial court.

The fourteenth amendment provides, in part, "nor shall any State deprive any person of life, liberty or property, without due process of law ...." The interest at stake in the present proceeding is Davis' liberty interest. There are two elements which must be established in order to find a due process violation. First, because not every liberty interest is protected, Davis must establish that he has a liberty interest that comes within the ambit of the fourteenth amendment. Hewitt v. Helms, --- U.S. ----, ----, 103 S.Ct. 864, 869, 74 L.Ed.2d...