State v. Fowler

• Decision Date: 03 July 2007
• Docket Number: No. 25185.,25185.
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Kenneth FOWLER.

926 A.2d 672

102 Conn.App. 154

STATE of Connecticut v. Kenneth FOWLER.

No. 25185.

Appellate Court of Connecticut.

Argued September 27, 2006.

Decided July 3, 2007.

Carlos E. Candal, special public defender, for the appellant (defendant).

Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Carl R. Ajello III, assistant state's attorney, for the appellee (state).

BISHOP, DiPENTIMA and HENNESSY, Js.

HENNESSY, J.

The defendant, Kenneth Fowler, appeals from the judgments of the trial court finding him in violation of probation pursuant to General Statutes § 53a-32. On appeal, the defendant claims that the court improperly denied his motion in limine to preclude evidence of his previous guilty pleas and therefore (1) improperly found that he had violated his probation and (2) abused its discretion in revoking his probation. We affirm the judgments of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant's appeal. On December 10, 1997, the defendant pleaded guilty to two counts of larceny in the first degree and one count of possession of narcotics. The court, Dyer, J., sentenced the defendant on each of those counts to seven years in prison, suspended after two years, followed by three years of probation. The sentences were ordered to be served concurrently. On June 15, 2000, the defendant was released from incarceration and began his probation. On February 26, 2003, the defendant was found to have violated his probation, and the court, Keller, J., extended the period of probation on all three cases, by nine months, concurrent on all files.

On February 26, March 4 and April 23, 2003, the defendant again reviewed the conditions of his probation, and, by signing the probation conditions form, again attested to understanding the conditions and agreed to abide by them. At the April 23, 2003 meeting, probation officer Matthew Buzzeo told the defendant to report to him on May 27, 2003. The defendant failed to report as directed. On June 5, 2003, the defendant was arrested by the Manchester police department and charged with larceny in the third degree, use of drug paraphernalia, forgery in the second degree, interfering with an officer and resisting arrest and failure to comply with fingerprint requests. On June 23, 2003, by virtue of his arrest and the previously mentioned failure to report, Buzzeo swore out a warrant for the arrest of the defendant for violation of probation.¹ On July 1, 2003, the defendant pleaded guilty to conspiracy to commit larceny in the sixth degree and failure to appear in the second degree. The court, Alvord, J., sentenced the defendant to a period of imprisonment of thirty days on each count to run concurrently.

Although the guilty pleas were not alleged in the warrant for violation of probation, the state gave the defendant timely notice of its intent to rely on acts of misconduct, which included the crimes to which the defendant pleaded guilty on July 1, 2003. In response, the defendant filed a motion in limine on December 17, 2003, to preclude evidence of the July 1, 2003 guilty pleas, claiming that they were unreliable due to an improper canvass as to his waiver of counsel.² On December 19, 2003 Judge Keller rendered an oral decision in which she found the defendant's claim in the motion in limine to be without merit. Although the court found by a fair preponderance of the evidence that the defendant had violated the first two conditions of his probation by failing to report to Buzzeo as directed and by violating two criminal laws of this state during his probationary period, it also found that the state did not prove by a fair preponderance of the evidence that he failed to keep the probation office advised of his address. After finding that the defendant had violated two conditions of probation, Judge Keller revoked his probation. This appeal followed. Additional facts will be set forth as necessary.

I

At the outset, we must address an argument raised by the state, claiming that this court does not have subject matter jurisdiction to consider a collateral attack on the validity of guilty pleas obtained in a wholly separate proceeding. Because subject matter jurisdiction implicates the authority of the court, the issue, once raised, must be resolved before proceeding to the merits of the case. See Ajadi v. Commissioner of Correction, 280 Conn. 514, 533, 911 A.2d 712 (2006).

The state argues that the defendant is precluded from collaterally attacking a previously entered and unchallenged guilty plea³ because he pleaded guilty to the crime that forms the basis for the violation of probation. The state relies on State v. Singleton, 274 Conn. 426, 876 A.2d 1 (2005), for the proposition that a criminal conviction may have preclusive effect on an appeal from a violation of probation, which is consistent with the general proposition that a defendant must attack directly the underlying conviction, rather than challenge the validity of the judgment in a collateral proceeding. The state claims that until and unless the defendant's criminal judgment is vacated, the preclusive effect of that conviction cannot be challenged in this forum. See Carnemolla v. Walsh, 75 Conn.App. 319, 327, 815 A.2d 1251, cert. denied, 263 Conn. 913, 821 A.2d 768 (2003). Therefore, according to the state, the defendant's valid guilty plea has preclusive effect, there is no controversy for purposes of justiciability, and we lack subject matter jurisdiction to hear the appeal. See State v. McElveen, 261 Conn. 198, 217-18, 802 A.2d 74 (2002). We are not persuaded.

This case falls outside the ambit of Singleton because the defendant pleaded guilty prior to the violation of probation hearing.⁴ In his appeal from the judgments revoking his probation, he challenges the trial court's refusal to preclude the introduction of evidence of his guilty pleas. As an appellate court, we may consider an evidentiary ruling upon final disposition of the case. See Sharon Motor Lodge, Inc. v. Tai, 82 Conn.App. 148, 160 n. 9, 842 A.2d 1140, cert. denied, 269 Conn. 908, 852 A.2d 738 (2004). Contrary to the state's apparent argument, the very existence of those pleas does not deprive us of subject matter jurisdiction. We therefore proceed to the merits of the defendant's claim.

II

The defendant first claims that the court improperly denied his motion in limine to preclude evidence of his previous guilty pleas. We conclude that the court's denial of the motion in limine was proper.

We begin with the applicable standard of review. "The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court." (Internal quotation marks omitted.) Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145, 156, 757 A.2d 14 (2000). We ordinarily review evidentiary claims pursuant to the abuse of discretion standard. See, e.g., State v. Spiegelmann, 81 Conn.App. 441, 448, 840 A.2d 69, cert. denied, 268 Conn. 921, 846 A.2d 882 (2004). The court's ruling on the motion in limine in the present case was based on its determination that Judge Alvord's canvass in the prior proceeding was sufficient to determine that the defendant knowingly, voluntarily and intelligently waived his right to counsel. We review for abuse of discretion a trial court's determination as to whether the defendant knowingly and voluntarily elected to proceed pro se. See, e.g., State v. Bangulescu, 80 Conn.App. 26, 43, 832 A.2d 1187, cert. denied, 267 Conn. 907, 840 A.2d 1171 (2003). Accordingly, we review the court's denial of the defendant's motion in limine for abuse of discretion. With these principles in mind, we turn now to the defendant's specific claim.

The defendant claims that the court, Keller, J., improperly denied his motion in limine to preclude evidence of his previously entered guilty pleas, which, he alleges, were unreliable because of a constitutional infirmity due to an inadequate canvass in the proceeding in which he waived his right to counsel and pleaded guilty. Specifically, the defendant argues that the guilty pleas are constitutionally defective because his waiver of counsel was not proper; therefore, when he pleaded guilty, he did so without representation in violation of his sixth amendment right to counsel. The defendant claims that the record does not show a knowing and intelligent waiver of his rights to counsel guaranteed by the constitution of Connecticut, article first, § 8, and the United States constitution, and that the trial court, Alvord, J., failed to comply with Practice Book § 44-3. Therefore, the defendant argues, the guilty pleas should have been precluded from evidence at the violation of probation proceeding, and the court's failure to do so was prejudicial to him and, thus, improper.

The defendant argues that his waiver was not knowing and intelligent because the court did not thoroughly discuss the range of possible punishments, and he did not fully understand the nature and consequences of the charges. Specifically, the court failed to ask him if he was on probation.⁵ The defendant further argues that he was not advised of possible defenses and other rights of which counsel should be aware, or that a defendant proceeding pro se will not be allowed to complain on appeal about the competency of his representation. In addition, the defendant argues that he should have been canvassed prior to speaking with the prosecutor, not once his plea has begun.⁶ Thus, the defendant argues, he did not possess the intelligence and capacity to appreciate the consequences of self-representation and did not knowingly waive his right to counsel.

The defendant's claim that his waiver of his right to counsel was not knowingly and intelligently made because he did not understand the range of permissible punishments and any additional facts essential to a broad understanding of ...