State v. Garvin

• Decision Date: 17 September 1996
• Docket Number: No. 15092,15092
• Citation: 682 A.2d 562,43 Conn.App. 142
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Willie GARVIN

Page 562

682 A.2d 562

43 Conn.App. 142

STATE of Connecticut v. Willie GARVIN

No. 15092.

Appellate Court of Connecticut.

Argued June 11, 1996.

Decided Sept. 17, 1996.

Donald D. Dakers, Special Public Defender, 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 DUPONT, C.J., and LANDAU and HEIMAN, JJ.

DUPONT, Chief Judge.

The issues on appeal are (1) whether the defendant's conviction on two counts of failure to appear in violation of General Statutes § 53a-172 violated his federal constitutional right to be free of double jeopardy and (2) whether the trial court had an affirmative obligation to tell the defendant that he could withdraw his plea of guilty at his sentencing proceeding. ¹

The record reveals the undisputed facts and procedural history that follow. Two separate incidents caused the state to charge the defendant by way of two separate informations. One information charged the defendant with the crime of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134(a)(4), and the other with the crimes of sexual assault in the second degree in violation of General Statutes § 53a-71(a)(1), and risk of injury to a child in violation of General Statutes § 53-21. The robbery charge stemmed from an incident on or about June 28, 1993, and the sexual assault and risk of injury charges stemmed from an incident on or about December 6, 1992.

On February 5, 1994, bail in each case was set at $15,000, and on November 7, 1994, the defendant, pursuant to a plea agreement with the state, pleaded guilty to all charges under the Alford doctrine ² in exchange for a recommendation of a total effective sentence of fifteen years incarceration suspended after eight years with three years probation. The trial court informed the defendant that if he failed to appear at the sentencing hearing scheduled for January 6, 1995, the trial court would no longer follow the agreement and could impose the maximum sentence allowed for all three charges, which totaled forty years. The trial court also informed the defendant that if a sentence greater than the bargained sentence was imposed, he could withdraw his guilty pleas. ³

The defendant failed to appear for both his presentence investigation interview and his January 6 sentencing hearing. At that time, the trial court noted that the defendant failed to appear for sentencing and that it was not obliged to impose the bargained sentence. The trial court ordered each bond from each case forfeited and issued two bench warrants for the defendant's arrest. The defendant was apprehended and the state charged him with two additional felony On July 10, 1995, the defendant appeared before the trial court and was sentenced on both his outstanding convictions and his failure to appear charges. At the commencement of the hearing, the trial court reminded the defendant of the effect of his failure to appear, namely, that the court was no longer bound by the plea agreement. The defendant then moved to withdraw his guilty pleas on the sole ground that he was under the influence of drugs at the time he entered those pleas. The trial court denied the motion for lack of evidentiary support and, following sentencing arguments, imposed a total effective sentence of eighteen years incarceration, execution suspended after twelve years, with three years probation. The defendant did not attempt to withdraw his guilty pleas during the sentencing hearing on the ground that the court failed to follow the plea agreement.

counts of failure to appear in the first degree in violation of General Statutes § 53a-172 for his wilful failures to appear for sentencing for the charges against him in each case.

The defendant then pleaded guilty to both counts of failure to appear, and the trial court sentenced him to one year incarceration on each count, to run concurrently with each other and with the sentences imposed arising from the previous pleas.

I

DOUBLE JEOPARDY CLAIMS

A Two Counts of Failure to Appear

The defendant claims that his convictions on two counts of failure to appear, both in violation of § 53a-172, violated his federal and state constitutional rights ⁴ against double jeopardy because the counts arose from the single act of failing to appear at the January 6 sentencing hearing. ⁵ The defendant failed to raise this issue to the trial court and, therefore, seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). ⁶ The record is adequate for review, and this claim implicates a constitutional right prohibiting one's life or limb to be put twice in jeopardy for the same offense. We, therefore, turn to the question of whether a violation of such right clearly exists.

" '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. Albernaz v. United States, 450 U.S. 333, 337, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); Whalen v. United States, 445 U.S. 684, 691, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980).' (Emphasis in original.) State v. Rawls, 198 Conn. 111, 121, 502 A.2d 374 (1985)." State v. Freeney, 228 Conn. 582, 587-88, 637 A.2d 1088 (1994). "The issue, though essentially constitutional, becomes one of statutory construction." State v. Rawls, supra, at 120, 502 A.2d 374.

A plain reading of § 53a-172 and a review of Connecticut case law are necessary to resolve this issue. General Statutes § 53a-172(a) provides: "A person is guilty of failure to appear in the first degree when, while charged with the commission of a felony and In State v. Candito, 4 Conn.App. 154, 493 A.2d 250 (1985), we determined that the existence of an underlying felony charge in connection with the failure to appear was a necessary element of the crime of failure to appear in the first degree. In that case, the state charged the defendant with failure to appear in violation of § 53a-172 as a result of his failure to appear in court on the day of his scheduled sentencing for five felonies to which he had pleaded guilty. State v. Candito, supra, at 156, 493 A.2d 250. The defendant was convicted of the crime of failure to appear after a jury trial. On appeal, he claimed that the trial court improperly admitted into evidence the specific felonies for which he had been found guilty at the time he failed to appear. Id., at 156, 493 A.2d 250. We concluded that because the state had to prove beyond a reasonable doubt that the defendant " 'while charged with the commission of a felony,' 'wilfully' " failed to appear, the underlying felony charges to which the defendant had pleaded guilty were relevant and material to the elements of the crime of failure to appear. Id., at 161, 493 A.2d 250. The elements of § 53a-172, therefore, require that the state prove beyond a reasonable doubt that while charged with the commission of a felony and out on bail or released by procedure of law, the charged person wilfully fails to appear when legally called.

while out on bail or released under other procedure of law, he wilfully fails to appear when legally called according to the terms of his bail bond or promise to appear." Section 53a-172 is classified as a Class D felony.

Failure to appear pursuant to the statute requires proof of an underlying crime. The statute pertains to the punishment of individuals who wilfully defy a court's authority to require them to appear in court to answer to a specific criminal charge, not to the punishment of those who merely wilfully fail to appear in court when called. Had the legislature intended to punish only the act of failing to appear, it would not have added the element of "while charged with the commission of a felony." Each failure to appear relates to the underlying charge for which the individual failed to appear. Another statute, General Statutes § 53a-173, punishes for failure to appear to answer to a misdemeanor. Thus, if the two separate crimes for which the defendant was to be sentenced were a misdemeanor and a felony, two separate charges of failures to appear would have been proper. These statutes, §§ 53a-172 and 53a-173, seek to punish the wilfulness of failing to appear to answer to a specific charge when legally called according to the terms of a bail bond or promise to appear. If the legislature merely intended to punish the act of failure to appear, it would not have created separate statutes and imposed different penalties for those individuals refusing to appear for a felony as opposed to a misdemeanor.

If § 53a-172 were interpreted as the defendant would have us interpret it, the result would be an absurdity. If an individual wilfully failed to appear in court to answer to both a felony charge and a misdemeanor charge, each arising from separate incidents; Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the individual could be charged with failure to appear under both §§ 53a-172 and 53a-173 because each statute requires proof of a different element. If, however, he failed to appear to answer two separate felony charges arising from separate incidents, both being serious crimes, the defendant's argument would mean that he could be charged with only one count of failing to appear under § 53a-172.

The defendant relies on State v. Rawls, supra, 198 Conn. at 121, 502 A.2d 374. In that case, the court concluded that there was a double jeopardy violation under the federal constitution where the defendant was punished twice under the same statute for the simultaneous possession of two different types of narcotic substances. The court stated: "If a person steals four horses from the barn of another, all being of different color, it would...