State v. Greco, No. 13864

CourtSupreme Court of Connecticut
Writing for the CourtBefore PETERS; CALLAHAN; In this opinion PETERS; SHEA
Citation579 A.2d 84,216 Conn. 282
PartiesSTATE of Connecticut v. Brian R. GRECO.
Decision Date14 August 1990
Docket NumberNo. 13864

Page 84

579 A.2d 84
216 Conn. 282
STATE of Connecticut
v.
Brian R. GRECO.
No. 13864.
Supreme Court of Connecticut.
Argued May 30.
Decided Aug. 14, 1990.

[216 Conn. 283] Donald D. Dakers, Public Defender, for appellant (defendant).

Timothy J. Sugrue, Deputy Assistant State's Atty., with whom, on the brief, was Michael Dearington, State's Atty., for appellee (state).

Before [216 Conn. 282] PETERS, C.J., and SHEA, CALLAHAN, GLASS and HULL, JJ.

[216 Conn. 283] CALLAHAN, Associate Justice.

The defendant, Brian R. Greco, was charged in a substitute information with the crimes of felony murder in violation of General Statutes § 53a-54c, 1 robbery in the

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first degree in violation of [216 Conn. 284] General Statutes § 53a-134(a)(2), 2 and burglary in the first degree in violation of General Statutes § 53a-101(a)(1). 3 In setting forth the predicate offenses, the felony murder count alleged that the defendant "did commit or attempt to commit a robbery of [the victim] and burglary of [the victim's] residence." 4

The defendant pleaded not guilty to all three counts of the substitute information and elected to be tried by a jury. He thereafter filed a motion to dismiss the first degree robbery count and the first degree burglary count pursuant to Practice Book § 815(4). 5 The basis [216 Conn. 285] for the defendant's motion was his claim that the state, by charging first degree robbery and first degree burglary as separate offenses, violated his constitutional right against double jeopardy because robbery and burglary were also the predicate offenses of the felony murder count. The trial court, Ronan, J., denied the defendant's motion. The Appellate Court dismissed, sua sponte, the defendant's appeal of the denial of that motion.

Subsequently, the defendant changed his plea on all three counts to guilty pursuant to the doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Prior to accepting the defendant's plea, the trial court, Damiani, J., provided the following information to the defendant pursuant to Practice Book § 711: 6 (1) for the crime of felony murder,

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the minimum mandatory prison sentence was twenty-five years, while the maximum possible sentence was life imprisonment; 7 (2) for the crime of robbery in the first degree, the minimum mandatory prison sentence was [216 Conn. 286] five years, while the maximum possible sentence was twenty years imprisonment; (3) for the crime of burglary in the first degree, the minimum mandatory prison sentence was five years while the maximum possible sentence was twenty years imprisonment; (4) the maximum prison sentence possible from consecutive sentences on all three counts was eighty years notwithstanding the opinion of the prosecutor that it was one hundred years. 8 The trial court also informed the defendant that it would impose a total effective sentence of fifty years imprisonment if the defendant pleaded guilty to all three counts.

Before the court accepted his guilty plea the defendant argued that, assuming the validity of his claim that the double jeopardy clause barred punishing him for both felony murder and the predicate offenses, the maximum possible prison term from consecutive sentences was sixty years. The defendant claimed that the uncertain status of his double jeopardy claim and its impact on his possible maximum sentence raised a question as to whether his guilty plea could knowingly be made under such circumstances. The trial court told the defendant that the double jeopardy issue would not be preserved if the defendant were to plead guilty and that he would have to go to trial if he wished to litigate that issue. The defendant rejected this offer and the trial court accepted his guilty plea after finding that it was made voluntarily and with the assistance of counsel.

The defendant subsequently filed a motion to withdraw his guilty plea, claiming that his plea was taken [216 Conn. 287] in violation of Practice Book § 711(4) because he had not been properly informed of the maximum possible sentence he faced from consecutive sentences. In his motion, the defendant noted that, at the time he changed his plea to guilty, his attorney had informed him that the maximum possible sentence was either sixty or one hundred years, while the court had informed him that the maximum possible sentence was eighty years. The trial court denied the defendant's motion to withdraw his guilty plea.

The court, as it had previously indicated, then sentenced the defendant to fifty years imprisonment on the felony murder count, and concurrent ten year sentences on both the first degree robbery count and the first degree burglary count. The defendant appealed the trial court's denial of his motion to withdraw his guilty plea to this court pursuant to General Statutes § 51-199(b)(3). 9

The defendant claims that he should have been allowed to withdraw his guilty plea under Practice Book §§ 720 and 721. 10

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He maintains that because the double[216 Conn. 288] jeopardy clause prevents the state from punishing him for felony murder, first degree robbery and first degree burglary, the maximum sentence possible was sixty years. The defendant argues that, since the trial court informed him that the maximum sentence possible from the imposition of consecutive sentences was eighty years, the plea was accepted without substantial compliance with Practice Book § 711, 11 and consequently the court should have allowed his plea to be withdrawn pursuant to § 721(1). In addition, the defendant claims that he should have been allowed to withdraw his guilty plea under § 721(2) because the court's allegedly erroneous advice as to the maximum sentence made it impossible for him voluntarily to waive his constitutional rights by pleading guilty.

The defendant conceded at oral argument that the success of his claim that his guilty plea was involuntary and was accepted without substantial compliance with § 711(2) and (4) is dependent upon our agreement with his double jeopardy argument. Because we find that the double jeopardy clause would not bar the court from imposing consecutive sentences upon the defendant for the felony murder conviction and for the first [216 Conn. 289] degree robbery and first degree burglary convictions, 12 we conclude that the trial court properly denied the defendant's motion to withdraw his guilty plea. Although the trial court incorrectly told the defendant that the maximum possible prison sentence he faced from consecutive sentences was eighty years, the defendant conceded at oral argument that this error does not support the claim that his plea was involuntary and was accepted without substantial compliance with § 711. Since the defendant pleaded guilty and accepted a fifty year sentence when informed that he faced a maximum possible prison sentence of eighty years, his plea certainly would have been the same if the trial court had properly informed him that the maximum possible sentence for the crimes charged was one hundred years.

The double jeopardy clause of the fifth amendment to the United States constitution provides: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb." The double jeopardy clause is applicable to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969); State v. Lonergan,

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13 Conn. 74, 78, 566 A.2d 677 (1989), cert. denied,--- U.S. ----, 110 [216 Conn. 290] S.Ct. 2586, 110 L.Ed.2d 267 (1990). This constitutional guarantee prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense in a single trial. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977); State v. Anderson, 212 Conn. 31, 35, 561 A.2d 897 (1989); State v. John, 210 Conn. 652, 693, 557 A.2d 93, cert. denied, --- U.S. ----, 110 S.Ct. 84, 107 L.Ed.2d 50 (1989).

The defendant's claim that the maximum possible prison sentence was sixty years involves that aspect of double jeopardy analysis that protects against multiple punishments for the same offense in a single trial. "With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983); Garrett v. United States, 471 U.S. 773, 793, 105 S.Ct. 2407, 2418, 85 L.Ed.2d 764 (1985); Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 1145, 67 L.Ed.2d 275 (1981); State v. Couture, 194 Conn. 530, 566, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S.Ct. 967, 83 L.Ed.2d 971 (1985). "[T]he role of the constitutional guarantee [against double jeopardy] is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense." Brown v. Ohio, supra, 432 U.S. at 165, 97 S.Ct. at 2225. "The issue, though essentially constitutional, becomes one of statutory construction." State v. Rawls, 198 Conn. 111, 120, 502 A.2d 374 (1985); State v. Madera, 198 Conn. 92, 109, 503 A.2d 136 (1985).

" ' "Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the [216 Conn. 291] same offense. Multiple punishments are forbidden only if both conditions are met." ' State v. Boucino, 199 Conn. 207, 222, 506 A.2d 125 (1986)." State v. John, supra, 210 Conn. at 693, 557 A.2d 93. There is no dispute in this case that each of the three crimes with which the defendant was charged arose out of the same transaction. Thus, the question is whether robbery in the first degree, burglary in the first degree, and felony murder based on the...

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93 practice notes
  • State v. Rafael Medrano., No. 31271.
    • United States
    • Appellate Court of Connecticut
    • September 20, 2011
    ...the bill of particulars, not to the evidence presented at trial.” (Citation omitted; internal quotation marks omitted.) State v. Greco, 216 Conn. 282, 291, 579 A.2d 84 (1990). In setting forth his double jeopardy argument, the defendant specifically notes that the weapon he used to kill the......
  • State v. Chicano, No. 13663
    • United States
    • Supreme Court of Connecticut
    • December 25, 1990
    ...or only one, is whether each provision requires proof of a fact which the other does not." Id., 304, 52 S.Ct. at 182; State v. Greco, 216 Conn. 282, 291, 579 A.2d 84 (1990). The defendant argues that under our decision in State v. John, supra, 8 convicting him of both felony murder and mans......
  • State v. Woodson, No. 14448
    • United States
    • Supreme Court of Connecticut
    • August 3, 1993
    ...(1989); State v. John, 210 Conn. 652, 693, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S.Ct. 84, 107 L.Ed.2d 50 (1989)." State v. Greco, 216 Conn. 282, 289-90, 579 A.2d 84 The defendant's claim that he was improperly convicted of two counts of arson in the first degree under § 53a-111(a)(3......
  • State v. Nita, No. 9820
    • United States
    • Appellate Court of Connecticut
    • April 22, 1992
    ...(1989); State v. John, 210 Conn. 652, 693, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S.Ct. 84, 107 L.Ed.2d 50 (1989).' State v. Greco, 216 Conn. 282, 289-90, 579 A.2d 84 (1990)." State v. Fernandez, 27 Conn.App. 73, 94-95, 604 A.2d 1308 In deciding whether the crimes arose out the same a......
  • Request a trial to view additional results
93 cases
  • State v. Rafael Medrano., No. 31271.
    • United States
    • Appellate Court of Connecticut
    • September 20, 2011
    ...the bill of particulars, not to the evidence presented at trial.” (Citation omitted; internal quotation marks omitted.) State v. Greco, 216 Conn. 282, 291, 579 A.2d 84 (1990). In setting forth his double jeopardy argument, the defendant specifically notes that the weapon he used to kill the......
  • State v. Chicano, No. 13663
    • United States
    • Supreme Court of Connecticut
    • December 25, 1990
    ...or only one, is whether each provision requires proof of a fact which the other does not." Id., 304, 52 S.Ct. at 182; State v. Greco, 216 Conn. 282, 291, 579 A.2d 84 (1990). The defendant argues that under our decision in State v. John, supra, 8 convicting him of both felony murder and mans......
  • State v. Woodson, No. 14448
    • United States
    • Supreme Court of Connecticut
    • August 3, 1993
    ...(1989); State v. John, 210 Conn. 652, 693, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S.Ct. 84, 107 L.Ed.2d 50 (1989)." State v. Greco, 216 Conn. 282, 289-90, 579 A.2d 84 The defendant's claim that he was improperly convicted of two counts of arson in the first degree under § 53a-111(a)(3......
  • State v. Nita, No. 9820
    • United States
    • Appellate Court of Connecticut
    • April 22, 1992
    ...(1989); State v. John, 210 Conn. 652, 693, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S.Ct. 84, 107 L.Ed.2d 50 (1989).' State v. Greco, 216 Conn. 282, 289-90, 579 A.2d 84 (1990)." State v. Fernandez, 27 Conn.App. 73, 94-95, 604 A.2d 1308 In deciding whether the crimes arose out the same a......
  • Request a trial to view additional results

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