State v. Falcon, (AC 20475)

• Court: Appellate Court of Connecticut
• Writing for the Court: SCHALLER, J.
• Citation: 793 A.2d 274,68 Conn. App. 884
• Parties: STATE OF CONNECTICUT v. ARIEL FALCON
• Docket Number: (AC 20475)
• Decision Date: 02 April 2002

68 Conn. App. 884
793 A.2d 274

STATE OF CONNECTICUT
v.
ARIEL FALCON

(AC 20475)

Appellate Court of Connecticut.

Argued November 27, 2001.

Officially released April 2, 2002.

Lavery, C. J., and Schaller and Peters, JS.

Matthew J. Collins, for the appellant (defendant).

Melissa L. Streeto, special deputy assistant state's attorney, with whom, on the brief, were Mary M. Galvin, state's attorney, and Kevin D. Lawlor, assistant state's attorney, for the appellee (state).

Opinion

SCHALLER, J.

The defendant, Ariel Falcon, appeals from the judgment of conviction, rendered after a jury trial, of criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c. The dispositive issue on appeal is whether the trial court committed plain error when it presided over this case after having

68 Conn. App. 885

participated actively in pretrial plea negotiations.¹ We reverse the judgment of the trial court. The following undisputed facts and procedural history are relevant to our resolution of this appeal. In October, 1997, the defendant was charged with criminal possession of a pistol or revolver pursuant to § 53a-217c. In December, 1997, the state's attorney and defense counsel met with the trial judge, Grogins, J., for a judicial pretrial conference. The state's attorney made an offer to defense counsel for a sentence of five years imprisonment, execution suspended after three years served and five years probation with a presentence investigation and a right to argue for a lesser sentence. The court suggested that the state's offer include a cap of thirty-six months on the time to be served and a right reserved by the defendant to argue for a lesser sentence. The state's attorney accepted the court's suggestion. The defendant, however, rejected the plea agreement. Nearly two years later, in October, 1999, Judge Grogins presided over the trial where a jury found the defendant guilty. In December, 1999, the court sentenced the defendant to five years imprisonment, execution suspended after forty months, which was more than the thirty-six month cap offered to the defendant during plea negotiations in December, 1997. At no time did the defendant move to disqualify the trial court or call to the court's attention its earlier involvement in the case. There is no indication in the record that the trial court itself was aware of its earlier involvement at the plea negotiating stage

The defendant claims that because the court improperly failed to recuse itself from presiding at the trial and sentencing after having earlier participated in pretrial

68 Conn. App. 886

plea negotiations, he was deprived 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.²

The defendant failed to preserve this claim and requested our review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). To avoid deciding the constitutional claim raised by the defendant, we determined that a nonconstitutional ground existed with regard to whether it was plain error for the trial court to preside over this case after having participated actively in plea negotiations. We conduct a plain error review rather than Golding review because "[t]his court has a basic judicial duty to avoid deciding a constitutional issue if a nonconstitutional ground exists that will dispose of the case." (Internal quotation marks omitted.) State v. Washington, 39 Conn. App. 175, 176-77 n.3, 664 A.2d 1153 (1995).

The state argues that we should not review the defendant's claim because the defendant failed to preserve his claim by filing a motion for disqualification or requesting plain error review. While the state is correct in asserting that we generally do not review claims that have not been adequately preserved for appeal, "our sua sponte invocation of plain error review is warranted when the following...