State v. Freeman, 120120 CTCA, AC 43014

Docket Nº:AC 43014
Opinion Judge:ALEXANDER, J.
Party Name:STATE OF CONNECTICUT v. TERRY FREEMAN
Attorney:James E. Mortimer, assigned counsel, for the appellant (defendant). Samantha L. Oden, deputy assistant state's attorney, with whom, on the brief, were Margaret E. Kelley, state's attorney, and Matthew Kalthoff, assistant state's attorney, for the appellee (state).
Judge Panel:Bright, C. J., and Cradle and Alexander, Js.
Case Date:December 01, 2020
Court:Appellate Court of Connecticut

STATE OF CONNECTICUT

v.

TERRY FREEMAN

No. AC 43014

Court of Appeals of Connecticut

December 1, 2020

Argued September 14, 2020

Procedural History

Information charging the defendant with the crimes of robbery in the first degree, conspiracy to commit robbery in the first degree, larceny in the fifth degree and criminal possession of a firearm, brought to the Superior Court in the judicial district of Ansonia-Mil- ford, where the court, Brown, J., denied the defendant's motion to dismiss; thereafter, the defendant was presented to the court, Brown, J., on a conditional plea of nolo contendere to robbery in the first degree; judgment of guilty in accordance with the plea; subsequently, the state entered a nolle prosequi as to the charges of conspiracy to commit robbery in the first degree and criminal possession of a firearm; thereafter, the court dismissed the charge of larceny in the fifth degree, and the defendant appealed to this court. Affirmed.

James E. Mortimer, assigned counsel, for the appellant (defendant).

Samantha L. Oden, deputy assistant state's attorney, with whom, on the brief, were Margaret E. Kelley, state's attorney, and Matthew Kalthoff, assistant state's attorney, for the appellee (state).

Bright, C. J., and Cradle and Alexander, Js.

OPINION

ALEXANDER, J.

The defendant, Terry Freeman, appeals from the judgment of conviction, rendered after his conditional plea of nolo contendere, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3). On appeal, the defendant claims that the trial court erred in denying his motion to dismiss, arguing that the prosecution was time barred by the five year statute of limitations set forth in General Statutes § 54-193 (b). We are not persuaded and, accordingly, affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to this appeal. On November 5, 2018, Jeffrey Gabianelli, a detective with the West Haven Police Department, received a letter from the defendant containing information about an armed robbery that had occurred at the Wine Press Liquor Store in West Haven on November 29, 2013. The next day, Gabianelli visited the defendant at the Carl Robinson Correctional Institution in Enfield where the defendant was incarcerated on unrelated charges.1 The defendant confessed to Gabianelli as to his involvement in the November 29, 2013 robbery. On November 9, 2018, Gabianelli prepared an arrest warrant. On November 15, 2018, a Superior Court judge signed the warrant. On November 19, 2018, John Laychak, a West Haven police officer, obtained the signed warrant and submitted a request that the Office of the State's Attorney prepare an application for a writ of habeas corpus to transport the defendant to the Superior Court in the judicial district of Ansonia-Milford for service of the arrest warrant. On November 21, 2018, the Office of the State's Attorney prepared the application for a writ of habeas corpus requesting that the defendant be transported to the court on December 6, 2018. On November 27, 2018, a prosecutor and a clerk of the court signed the writ of habeas corpus. On December 6, 2018, the defendant was transported to the Superior Court where he was served with the arrest warrant.

Thereafter, the defendant filed a motion to dismiss, claiming that prosecution was barred due to the lapse of the five year statute of limitations set forth in § 54-193 (b).2 The defendant argued that the statute of limitations had lapsed on November 29, 2018, five years after the robbery had occurred, and that the state had failed to proffer sufficient evidence to show that the delay in the execution of the arrest warrant until December 6, 2018, was reasonable.

The trial court denied the motion, finding that the state had offered ‘‘some evidence explaining why the delay was reasonable'' and that the state acted ‘‘reasonably and diligently'' in its preparation and execution of the warrant. The defendant thereafter entered a conditional plea of nolo contendere to the charge of robbery in the first degree.[3] The court subsequently sentenced the defendant to a term of one year of imprisonment to be served consecutively to his current sentence.

On appeal, the defendant claims that the court erred in denying his motion to dismiss. He argues that the court misinterpreted and misapplied State v. Crawford, 202 Conn. 443, 521 A.2d 1034 (1987), and State v. Swebilius, 325 Conn. 793, 159 A.3d 1099 (2017). He further argues that the state failed to proffer sufficient evidence to demonstrate the reasonableness of the delay in service of the arrest warrant beyond the statute of limitations under these cases. We disagree.

We initially address the standard of review for a trial court's denial of a motion to dismiss. ‘‘Because a motion to dismiss effectively challenges the jurisdiction of the court, asserting that the state, as a matter of law and fact, cannot state a proper cause of action against the defendant, our review of the court's legal conclusions and resulting denial of the defendant's motion to dismiss is de novo. . . . Factual findings underlying the court's decision, however, will not be disturbed unless they are clearly erroneous. . . . The applicable legal standard of review for the denial of a motion to dismiss, therefore, generally turns on whether the appellant seeks to challenge the legal conclusions of the trial court or its factual determinations.'' (Internal quotation marks omitted.) State v. Crosby, 182 Conn.App. 373, 383, 190 A.3d 1, cert. denied, 330 Conn. 911, 193 A.3d 559 (2018).

In State v. Crawford, supra, 202 Conn. 444-45, the defendant moved to dismiss the information charging him with two misdemeanor offenses. Although the arrest warrant for the offenses was issued before the expiration of the one year statute of limitations, the warrant was not served on the defendant until more than two years after the offenses were committed. Id., 445. In affirming the trial court's denial of the defendant's motion to dismiss, our Supreme Court stated: ‘‘When an arrest warrant has been issued, and the prosecutorial official has promptly delivered it to a proper officer for service, he has done all he can under our existing law to initiate prosecution and to set in motion the machinery that will provide notice to the accused of the charges against him. When the prosecutorial authority has done everything possible within the period of limitation to evidence and effectuate an intent to prosecute, the statute of limitations is tolled.'' (Footnote omitted.) Id., 450. Nevertheless, the court held that, ‘‘in order to toll the statute of limitations, an arrest warrant, when issued within the time limitations . . . must be executed without unreasonable delay.'' Id., 450-51. The court declined to adopt a per se approach to determining the reasonableness of the execution of an arrest warrant and explained that what constitutes a ‘‘reasonable period of time is a question of fact that will depend on the circumstances of each case.'' Id., 451. The court stated: ‘‘If the facts indicate that an accused consciously eluded the authorities, or for other reasons was difficult to apprehend, these factors will be considered in determining what time is reasonable. If, on the other hand, the accused did not relocate or take evasive action to avoid apprehension, failure to execute an arrest warrant for even a short period of time might be unreasonable and fail to toll the statute of limitations.'' Id. Because there was an absence of evidence showing an unreasonable delay in service on the defendant, our Supreme Court affirmed the trial court's denial of the defendant's motion to dismiss. Id., 452.

In cases following Crawford, this court articulated a burden shifting framework where, ‘‘once a defendant puts forth evidence to suggest that [he or] she was not elusive, was available and was readily approachable, the burden shifts to the state to prove that the delay in executing the warrant was not unreasonable.'' State v. Soldi, 92 Conn.App. 849, 857, 887 A.2d 436, cert. denied, 277 Conn. 913, 895 A.2d 792 (2006); see also State v. Woodtke, 130 Conn.App. 734, 740, 25 A.3d 699 (2011).

In State v. Swebilius, supra, 325 Conn. 804, our Supreme Court expanded on Crawford and affirmed this burden shifting framework. The court concluded that, ‘‘if the defendant can demonstrate his availability during the statutory period, the state must make some effort to serve the arrest warrant before the relevant statute of limitations expires, or to offer some evidence explaining why its failure to do so was reasonable under the circumstances.'' Id., 814. Finding that the trial court had applied the wrong legal standard in...

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