State v. Joseph

• Decision Date: 22 December 2015
• Docket Number: No. 36908.,36908.
• Citation: 161 Conn.App. 850,129 A.3d 183
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Kenyon JOSEPH.

161 Conn.App. 850

129 A.3d 183

STATE of Connecticut

v.Kenyon JOSEPH.

No. 36908.

Appellate Court of Connecticut.

Argued Sept. 24, 2015.

Decided Dec. 22, 2015.

W. Theodore Koch III, Lyme, assigned counsel, for the appellant (defendant).

Sarah Hanna, assistant state's attorney, with whom, on the brief, were Michael L. Regan, state's attorney, and Thomas M. DeLillo, senior assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and GRUENDEL and PRESCOTT, Js.

DiPENTIMA, C.J.

The defendant, Kenyon Joseph, appeals from the judgment of conviction, rendered after his conditional plea of nolo contendere, of assault of a correction officer in violation of General Statutes § 53a–167c (a). On appeal, the defendant claims that the trial court improperly denied his motion to assert the common-law affirmative defense of necessity at trial. Because we conclude that this appeal does not meet the conditions necessary to bring an appeal following a conditional nolo contendere plea as provided by General Statutes § 54–94a and does not fall within the narrow exception for review set forth by our Supreme Court in State v. Revelo, 256 Conn. 494, 503–504, 775 A.2d 260, cert. denied, 534 U.S. 1052, 122 S.Ct. 639, 151 L.Ed.2d 558 (2001), we decline to review it. Because the defendant's plea was conditioned on the right to appeal, the judgment must be reversed and the case remanded for further proceedings.

The defendant entered a conditional plea of nolo contendere to the state's recitation of the following facts. On September 10, 2012, the defendant was incarcerated at Corrigan–Radgowski Correctional Center (Corrigan). During a briefing from the warden regarding recreational time, the defendant became disruptive and was escorted from the presentation. While walking back to his cell, the defendant broke free from the escort and approached the warden. At this point, the victim, the deputy warden of the facility, intervened. The defendant took a sharpened toothbrush and struck the deputy warden in the face, causing a puncture wound to the cheek

that required medical attention.

In an information dated February 11, 2014, the state charged the defendant with assault of a correction officer in violation of § 53a–167c (a)¹ and possession of a dangerous instrument in a correctional institution in violation of General Statutes § 53a–174a (a).² Later that month, the defendant filed a notice of intent to use the defense of necessity.³ In his accompanying memorandum of law, the defendant alleged the following facts in support of his request to use the necessity defense.⁴

The defendant was serving a fifty-six year sentence and, on March 25, 2010, was housed at Corrigan. During a therapy session on that date, two inmates assaulted the defendant. Following this attack, the defendant was transferred to Northern Correctional Institution, and then to MacDougall–Walker Correctional Institution (MacDougall). The defendant suffered from mental illness and was traumatized by the attack at Corrigan. Defense counsel stated that, when the defendant fears for his safety, he "has a history of [disassociating] and flying into uncontrollable and violent rages during which he is not conscious of himself and is capable of inflicting great harm upon others." Following his transfer back to Corrigan, the defendant feared for his safety and that he would be attacked again. The defendant informed employees at Corrigan that he wanted to be transferred out and would do what was necessary to accomplish this, including assaulting the staff. On September 10, 2012, the defendant went into a "[disassociated] rage" and assaulted the deputy warden.

On April 7, 2014, the court held a hearing on the defendant's motion to present the defense of necessity. Following the argument of defense counsel, the prosecutor contended that the defendant had failed to meet his burden of establishing the three elements of that defense to warrant its use in this case. The court agreed with the prosecutor. It denied the defendant's motion, ruling that he was prohibited from offering evidence regarding the necessity defense.⁵

On April 21, 2014, the defendant withdrew his prior plea of not guilty and entered a plea of nolo contendere. Prior to entering the plea, defense counsel stated the following: "All right. It's a plea of nolo contendere, reserving the right to appeal the following issue, which is whether the trial court correctly ruled, on April 7, 2014, that the defendant had not made a sufficient showing to entitle him to use the defense of necessity." The prosecutor responded as follows: "I have no objection to the plea entering in this fashion, but the state does not concede that there is any merit to the appeal, nor does the state concede that the defendant is even entitled to take an appeal on this issue, so I don't want counsel to be misled into believing that by accepting the plea, somehow the state acknowledges that there is a valid appealable issue here, or that he's entitled to take an appeal of this particular issue."

On the plea form signed by the defendant, he filled out the conditional plea of nolo contendere section.⁶ After a canvass,⁷ the court accepted the defendant's plea. The court did not indicate whether a dispositive ruling had been made in the case and left that section of the form blank.⁸ In accordance with the plea agreement, the court sentenced the defendant to two years incarceration, to be served consecutively to his current sentence.

The defendant filed the present appeal on May 30, 2014. On December 30, 2014, the state moved for permission to file a late motion to dismiss, which we granted. The state then filed its motion to dismiss, claiming that the requirements of § 54–94a had not been met in this case. We denied the state's motion without prejudice and ordered, sua sponte, the defendant to file a supplemental brief addressing why this court should exercise its supervisory power to review his claim on appeal in accordance with the three factors described in State v. Revelo, supra, 256 Conn. at 503–504, 775 A.2d 260, and State v. Chung, 202 Conn. 39, 44–45, 519 A.2d 1175 (1987).⁹

We begin our analysis with the text of § 54–94a, which provides: "When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court's denial of the defendant's motion to suppress or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law provided a trial court has determined that a ruling on such motion to suppress or motion to dismiss would be dispositive of the case. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution." (Emphasis added.)

Our Supreme Court has concluded that this statute does not implicate the subject matter jurisdiction of an appellate court. State v. Piorkowski, 236 Conn. 388, 400, 672 A.2d 921 (1996) ; see also State v. Revelo, supra, 256 Conn. at 501 n. 14, 775 A.2d 260 ; State v. Palkimas, 116 Conn.App. 788, 796, 977 A.2d 705 (2009) (statute did not "create a new jurisdictional doorway into [the Appellate Court] [internal quotation marks omitted] "). Section 54–94a"modified the broad waiver of nonjuridictional defects implicit in a plea of nolo contendere." (Internal quotation marks omitted.) State v. Palkimas, supra, at 795, 977 A.2d 705. It provides a defendant with an expedited route to an appellate court after fully litigating a suppression or dismissal issue in the trial court, without expending additional resources. State v. Paradis, 91 Conn.App. 595, 602, 881 A.2d 530 (2005). "The appellate courts in this state consistently have required that § 54–94a be interpreted strictly."

Id., at 603, 881 A.2d 530. Our Supreme Court has refused to expand this statutory right to plead conditionally and appeal beyond the issues explicitly enumerated in § 54–94a. State v. Commins, 276 Conn. 503, 516, 886 A.2d 824 (2005), overruled in part on other grounds, State v. Elson, 311 Conn. 726, 754, 91 A.3d 862 (2014).

The defendant's appeal does not meet the requirements of § 54–94a. The appeal was not taken from the judgment of conviction following the denial of a motion to dismiss or a motion to suppress. The sole basis for appeal was that the court improperly denied the motion to present the defense of necessity. See, e.g., State v. Lasaga, 269 Conn. 454, 480, 848 A.2d 1149 (2004) (declining to review claim that trial court improperly denied motion for continuance to change counsel because that claim not within scope of § 54–94a ); State v. Jenkins, 82 Conn.App. 802, 812–15, 847 A.2d 1044 (declining to review claim that trial court improperly denied motion to reopen hearing on motion to suppress because that claim was not within scope of § 54–94a ), cert. denied, 269 Conn. 915, 852 A.2d 745, cert. denied, 543 U.S. 1025, 125 S.Ct. 667, 160 L.Ed.2d 503 (2004).

Furthermore, the court never made the mandatory finding that the denial of this motion was dispositive of the case. We will not review the defendant's claim on appeal in the absence of such a determination. State v. Jevarjian, 124 Conn.App. 331, 353, 4 A.3d 1231 (2010) (no appellate review of denial of motion for disclosure because that motion is not identified in § 54–94a and trial court did not make determination that ruling on motion was dispositive of case), appeal dismissed, 307 Conn. 559, 58 A.3d 243 (2012) (appeal moot); State v. Munoz, 104 Conn.App. 85, 93, 932 A.2d 443 (2007) (ruling on whether motion being appealed was dispositive is not waivable); see also State v. Rhoads, 122 Conn.App. 238, 244, 999 A.2d 1 (review afforded pursuant to § 54–94a only if conditions of statute are met), cert. denied, ...