State v. Hedman

• Decision Date: 20 March 2001
• Docket Number: (AC 19834)
• Citation: 772 A.2d 603,62 Conn. App. 403
• Parties: STATE OF CONNECTICUT v. EDWARD HEDMAN
• Court: Connecticut Court of Appeals

62 Conn. App. 403

772 A.2d 603

STATE OF CONNECTICUT v. EDWARD HEDMAN

(AC 19834)

Appellate Court of Connecticut.

Argued November 30, 2000.

Officially released March 20, 2001.

Mihalakos, Zarella and Dupont, JS. Martin Zeldis, assistant public defender, for the appellant (defendant).

Susann E. Gill, senior assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Robert Brennan, assistant state's attorney, for the appellee (state).

Opinion

DUPONT, J.

After a hearing in this revocation of probation case, the court found the defendant, Edward Hedman, in violation of his probation, revoked it and sentenced him to the unserved remainder of the term of his original sentence. The court found that the defendant had violated the condition of probation that required him to obtain alcohol abuse testing, treatment and counseling.¹

The sole issue on appeal is whether the right of allocution as prescribed by Practice Book § 43-10 (1) and (3) required the trial court affirmatively to offer the defendant an opportunity to address the court personally before it imposed sentence in the dispositional phase of the probation revocation hearing. The defendant claims that the right of allocution requires a court to ask a defendant if the defendant wishes to make a statement in his or her own behalf if the defendant has not requested permission to make such a statement. The defendant further claims that the right is not satisfied by permitting the defendant's counsel to speak for the defendant or by asking the defendant's counsel if he or she wants to speak for the defendant. We agree with the defendant.

The defendant did not preserve the issue but claims that it is reviewable, nevertheless, under the principles of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989),² the plain error doctrine or our general supervisory powers.³ We conclude that the claim is reviewable under the plain error doctrine. A probation hearing has two distinct components. First, "the court conducts an adversarial evidentiary hearing to determine whether the defendant has indeed violated a condition of probation.... Second, if the evidence supports a violation, the court exercises its discretion and determines whether the beneficial, rehabilitative purposes of probation are still being served or whether the need to protect the public outweighs the probationer's interest in liberty." (Citations omitted.) State v. Reilly, 60 Conn. App. 716, 725-26, 760 A.2d 1001 (2000). Thus, an appellate court will affirm a reinstatement of an original sentence or an order of incarceration absent a manifest abuse of discretion or injustice requiring reversal. Id., 726. In the present case, the defendant claims that an injustice has occurred.

We are concerned here solely with the dispositional phase of the violation of probation hearing. The defendant did not ask the court for permission to speak before it imposed the sentence. The court did ask counsel for the state and defense counsel if they wished to speak. Defense counsel did not state in his remarks that the defendant waived his right to allocution. The defendant claims that the court violated his right to allocution when it did not ask him if he personally wanted to address the court. The defendant claims further that Practice Book § 43-10 requires us to vacate the sentence imposed and to order a new dispositional sentencing proceeding before a different court. No Connecticut case has afforded an interpretation of Practice Book § 43-10 against a backdrop of facts similar to those of this case.

We must determine the correct interpretation of the words of Practice Book § 43-10,⁴ which provides in relevant part that "[t]he judicial authority shall afford the parties an opportunity to be heard ... [and] shall allow the defendant a reasonable opportunity to make a personal statement in his or her own behalf and to present any information in mitigation of the sentence...." Phrased differently, the question is whether the trial court has an affirmative duty to ask the defendant at sentencing if he wants to say anything or if the rules of practice require the trial court to allow the defendant an opportunity to speak only upon the request of the defendant or his attorney. The words of the rules of practice and Connecticut case law make clear that, at the very least, the defendant has the latter right. State v. Mourning, 249 Conn. 242, 248, 733 A.2d 181 (1999); State v. Strickland, 243 Conn. 339, 354, 703 A.2d 109 (1997).

It also is settled that Practice Book § 43-10 (3) applies during a violation of probation hearing. State v. Strickland, supra, 243 Conn. 354. Moreover, if the court orders the defendant to serve the balance of his sentence immediately after it finds a violation and then adjourns for the day immediately after imposition of that sentence, the court has deprived the defendant of a reasonable opportunity to exercise the right of allocution. State v. Johnson, 50 Conn. App. 46, 50, 717 A.2d 786, cert. denied, 247 Conn. 923, 722 A.2d 811 (1998). Johnson also determined that neither the defendant's testimony nor his counsel's argument during the first component of the hearing satisfies the right of allocution. If the defendant is entitled to a new hearing of the dispositional phase, a different judge should conduct that hearing. See id., 51; see also State v. Strickland, supra, 354. An appellate court of Connecticut has not yet decided, however, whether Practice Book § 43-10 (1) or (3) mandates that a trial court inquire of a defendant whether the defendant wants to speak before it imposes sentence during the dispositional phase of the violation of probation hearing.

We now turn to whether a plain error review is warranted and, if so, whether the defendant can prevail on his claim that plain error exists. If a statute imposes a duty, the failure to comply with that statute may constitute plain error. See State v. Yurch, 229 Conn. 516, 521, 641 A.2d 1387, cert. denied, 513 U.S. 965, 115 S. Ct. 430, 130 L. Ed. 2d 343 (1994); State v. Thurman, 10 Conn. App. 302, 308-309, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987). "Where the legislature has chosen specific means to effectuate a fundamental right, failure to follow the mandatory provisions of the statute is plain error, reviewable by this court." State v. Burke, 182 Conn. 330, 331-32, 438 A.2d 93 (1980). The failure to follow a procedural rule prescribing court procedures can also constitute plain error. State v. Johnson, 214 Conn. 161, 171 n.10, 571 A.2d 79 (1990); State v. Pina, 185 Conn. 473, 482, 440 A.2d 962 (1981); State v. Tinsley, 59 Conn. App. 4, 18, 755 A.2d 368, cert. denied, 254 Conn. 938, 761 A.2d 765 (2000); State v. Robins, 34 Conn. App. 694, 706, 643 A.2d 881 (1994), affd, 233 Conn. 527, 660 A.2d 738 (1995). When a rule effectuates a fundamental right, noncompliance with its mandatory requirements will require a plain error review. A plain error review does not necessarily require the conclusion that a defendant will prevail in the claim that plain error exists. Ordinarily, a fundamental right is equated with an implied or explicit constitutional right. See Zapata v. Burns, 207 Conn. 496, 505-506, 542 A.2d 700 (1988). A right is not fundamental if it has no protection in either the state or federal constitution, a statute or the common law. See Liistro v. Robinson, 170 Conn. 116, 124-25, 365 A.2d 109 (1976). In this case, Practice Book § 43-10 codifies the common-law right of allocution, which is a fundamental right when raised on direct appeal.⁵Green v. United States, 365 U.S. 301, 304, 81 S. Ct. 653, 5 L. Ed. 2d 670 (1961); see Hill v. United States, 368 U.S. 424, 428-29, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962). Prior to codification by rule, the right had existed at common law since 1689. Green v. United States, supra, 304. Our rule, as does Federal Rule of Criminal Procedure 32 (a), "explicitly affords the defendant two rights: to make a statement in his own behalf, and to present any information in mitigation of punishment." (Emphasis added; internal quotation marks omitted.) Id.

In determining if a right is fundamental, judges must look to the "traditions and [collective] conscience of our people...." Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S. Ct. 330, 78 L. Ed. 674 (1934); see Griswold v. Connecticut, 381 U.S. 479, 487, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965) (Goldberg, J., concurring). Griswold concerns a fundamental, or implicit constitutional right of privacy, which rests on the fundamental right of personal liberty. The right of allocution is fundamental because it affects personal liberty, although it is not a right guaranteed by the federal constitution. The right of allocution rests instead on the traditions of the common law.

According to Ballentine's Law Dictionary (3d Ed. 1969), allocution is the traditional formal inquiry under the common law, which exists by statute in some jurisdictions, and directs the court to ask defendants before sentencing if they have anything to say before the court pronounces sentence. Although Strickland strongly supports the accuracy of that definition; State v. Strickland, supra, 243 Conn. 343; the facts of Strickland relate to a situation where the defendant sought to speak but the court denied him that opportunity, although it had asked defense counsel if he had anything to say. Id., 342-43. In State v. Strickland, supra, 346, our Supreme Court, quoting Green v. United States, supra, 365 U.S. 304, stated: "The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself." (Internal quotation marks omitted.)

In the present case, the court did not deny a request by the defendant for an opportunity to speak, nor did it inquire of the defendant if he wished to speak before sentencing. We rely on the principles of Strickland and the cases of ...