State v. Garvin

• Decision Date: 05 August 1997
• Docket Number: No. 15578,15578
• Citation: 699 A.2d 921,242 Conn. 296
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Willie GARVIN.

Page 921

699 A.2d 921

242 Conn. 296

STATE of Connecticut v. Willie GARVIN.

No. 15578.

Supreme Court of Connecticut.

Argued May 29, 1997.

Decided Aug. 5, 1997.

Katerina M. Rohner, Special Public Defender, with whom was Donald D. Dakers, Special Public Defender, New Haven, for appellant (defendant).

Paul J. Ferencek, Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, and Michael Pepper, Assistant State's Attorney, for appellee (State).

Before BORDEN, NORCOTT, KATZ, McDONALD and PETERS, JJ.

PETERS, Associate Justice.

The principal issue in this certified appeal is whether, under General Statutes § 53a-172, ¹ multiple convictions for failure to appear arising out of the forfeiture of multiple separate bail bonds violate the constitutional prohibition against double jeopardy. The defendant, Willie Garvin, initially was charged in two separate informations. The first information charged him with conspiracy to commit robbery in the first degree in violation of General Statutes § 53a-48 (a) ² and § 53a-134 (a)(4), ³ and the second charged him with sexual assault in the second degree in violation of General Statutes § 53a-71 (a)(1) ⁴ and risk of injury to a child in violation of General Statutes § 53-21. ⁵ Thereafter, the defendant also was charged with two counts of failure to appear in violation of § 53a-172. The defendant pleaded guilty and was sentenced on all five counts. On appeal to the Appellate Court, that court affirmed his convictions. State v. Garvin, 43 Conn.App. 142, 160, 682 A.2d 562 (1996). We granted the defendant's petition for certification to appeal ⁶ and now affirm the judgment of the Appellate Court.

The following facts are undisputed. On February 5, 1994, while the defendant was released pending the disposition of the initial conspiracy, sexual assault and risk of injury charges, he signed two $15,000 bail bonds, one for each of the two informations then pending against him. On November 7, 1994, pursuant to the Alford doctrine, ⁷ the defendant pleaded guilty to both sets of charges.

Before accepting the defendant's guilty pleas, the trial court informed him of its intent to impose a total sentence of fifteen years, execution suspended after eight years in prison, followed by three years probation. The court did not then have available a presentence investigation report to guide its final decision. See Practice Book § 909 et seq. (establishing procedures for evaluating presentence investigation reports). The court, therefore, also informed the defendant that it would not be bound by the proposed sentence, but that, if it imposed a greater sentence, the defendant could withdraw his pleas. The court also warned the defendant, however, that, if he failed to appear on the date set for his sentencing hearing, the court would not be bound by the sentence set forth in the plea agreement and the defendant would face additional charges of failure to appear. ⁸

The defendant failed to appear for his January 6, 1995 sentencing hearing. The trial court noted the defendant's absence and informed his counsel that the court was no longer bound by the plea agreement and that the defendant would not be allowed to withdraw his pleas. ⁹ The court also ordered forfeiture of both bonds and issued two bench warrants for the defendant's arrest.

The defendant subsequently was apprehended and charged with two counts of failure to appear in the first degree in violation of § 53a-172. The two counts arose out of the fact that his failure to appear had caused his two bail bonds to be forfeited.

At his sentencing hearing on July 10, 1995, the defendant sought, on one ground only, to withdraw his guilty pleas. He claimed then that he had been under the influence of narcotics at the time he had entered his pleas. The trial court denied this motion ¹⁰ and imposed a total sentence of eighteen years, execution suspended after twelve years in prison, followed by three years probation, on the conspiracy to commit robbery in the first degree, sexual assault and risk of injury counts together. At the same hearing, the defendant pleaded guilty to both counts of failure to appear in violation of § 53a-172. The court then sentenced the defendant to one year of imprisonment on each count, to run concurrently with each other and with the sentence imposed with respect to the initial charges.

In this court, as he did in the Appellate Court, the defendant challenges the validity of his convictions on two grounds. ¹¹ He argues that the trial court: (1) violated his constitutional right not to be put twice into jeopardy by convicting him on two counts of failure to appear; and (2) violated his constitutional right to due process by not allowing him to withdraw his guilty pleas on the conspiracy to commit robbery, sexual assault and risk of injury charges after the trial court imposed a sentence greater than that to which he and the state originally had stipulated. Like the Appellate Court; State v. Garvin, supra, 43 Conn.App. at 160, 682 A.2d 562; but on somewhat different grounds, we reject both of the defendant's arguments.

I

We first address the defendant's claim that his two convictions under § 53a-172 for breach of two separate bail bonds violated the constitutional prohibition against double jeopardy. Rejecting this claim, the Appellate Court acknowledged that there had been only one act, a failure to appear on a given day. Nonetheless, relying on State v. Candito, 4 Conn.App. 154, 161, 493 A.2d 250 (1985), the court concluded that this one act was sufficient to support the conviction for two offenses "because each charge of failure to appear involved an element that the other did not, namely, being charged with the commission of separate felonies." State v. Garvin, supra, 43 Conn.App. at 150, 682 A.2d 562. Without addressing the merits of that conclusion, we are persuaded that the defendant's convictions do not violate the prohibition against double jeopardy because each breach of each bond constituted a separate act of failure to appear in violation of § 53a-172.

Although the defendant failed to raise this claim at trial, we will undertake appellate review pursuant to the four part Evans-Golding test. State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973). Under this test, "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." State v. Golding, supra, at 239-40, 567 A.2d 823. Because the record is adequate for review and because this issue implicates a fundamental constitutional right, the first two parts of the test have been met. Pursuant to the third part of the Evans-Golding test, we, therefore, must determine whether the alleged constitutional violation clearly exists.

The defendant claims that his two convictions under § 53a-172 for failure to appear violate his state and federal constitutional rights against double jeopardy. The double jeopardy clause of the fifth amendment to the United States constitution applies to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 787, 89 S.Ct. 2056, 2058-59, 23 L.Ed.2d 707 (1969); State v. Lonergan, 213 Conn. 74, 78, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S.Ct. 2586, 110 L.Ed.2d 267 (1990). In addition, our state constitution impliedly incorporates protection against double jeopardy within the provisions of article first, §§ 8 and 9. State v. Nixon, 231 Conn. 545, 550, 651 A.2d 1264 (1995); State v. Chicano, 216 Conn. 699, 706, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S.Ct. 2898, 115 L.Ed.2d 1062 (1991).

In accordance with Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), double jeopardy claims challenging the constitutional validity of convictions pursuant to two distinct statutory provisions are traditionally analyzed by inquiring whether each provision requires proof of a fact of which the other does not require proof. State v. Hill, 237 Conn. 81, 100, 675 A.2d 866 (1996). This is the analysis on which the Appellate Court relied in this case. State v. Garvin, supra, 43 Conn.App. at 147-50, 682 A.2d 562. We prefer a different form of analysis in the circumstances of this case, in which only one statutory provision is at issue.

"The proper double jeopardy inquiry when a defendant is convicted of multiple violations of the same statutory provision is whether the legislature intended to punish the individual acts separately or to punish only the course of action which they constitute." (Emphasis in original; internal quotation marks omitted.) State v. Freeney, 228 Conn. 582, 587, 637 A.2d 1088 (1994). "The issue, though essentially constitutional, becomes one of statutory construction." State v. Rawls, 198 Conn. 111, 120, 502 A.2d 374 (1985).

"In construing any statute, we seek to ascertain and give effect to the apparent intent of the legislature." United Illuminating Co. v. Groppo, 220 Conn. 749, 755, 601 A.2d 1005 (1992). "In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Internal quotation marks omitted.) State v. Payne, 240 Conn. 766, 771, 695 A.2d 525 (1997).

We begin with...