State v. Ledbetter

• Decision Date: 15 April 1997
• Docket Number: No. 15480,15480
• Citation: 692 A.2d 713,240 Conn. 317
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Terrell LEDBETTER.

Page 713

692 A.2d 713

240 Conn. 317

STATE of Connecticut v. Terrell LEDBETTER.

No. 15480.

Supreme Court of Connecticut.

Argued Jan. 17, 1997.

Decided April 15, 1997.

James M. Ralls, Assistant State's Attorney, with whom on the brief, were Michael Dearington, State's Attorney, and Christopher Alexy, Assistant State's Attorney, for appellant (state).

Dina S. Fisher, Special Public Defender, with whom was Linda L. Morkan, Special Public Defender, for appellee (defendant).

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

KATZ, Associate Justice.

The primary issue in this certified appeal is whether the persistent felony offender statute, General Statutes § 53a-40 (d), ¹ which defines a persistent felony offender as one who "has been, at separate times prior to the commission of the present felony, twice convicted of a felony," applies to a defendant who, prior to the commission of a third felony, entered simultaneous guilty pleas to two separate felonies. We conclude that § 53a-40 (d) requires a sequence of conviction and punishment for each prior offense and, therefore, does not apply to the present case. Accordingly, we affirm the judgment of the Appellate Court, but on the basis of a statutory analysis that differs from that of the Appellate Court.

In the first part of a two part information (part A), the defendant, Terrell Ledbetter, was charged with the crimes of robbery in the first degree in violation of General Statutes § 53a-134 (a)(3), ² larceny in the second degree in violation of General Statutes § 53a-123 (a)(3), ³ and carrying a dangerous weapon in violation of General Statutes § 53-206(a). ⁴ In the second part of the information (part B), he was charged with being a persistent felony offender pursuant to § 53a-40 (d). See footnote 1. On November 16, 1993, after a jury trial, the defendant was found guilty of the offenses charged in part A. Thereafter, the defendant elected a court trial on part B. After the state presented evidence that on May 15, 1987, in a single court proceeding, the defendant had pleaded guilty to two felony charges, the defendant moved for a judgment of acquittal because those prior convictions had not occurred "at separate times" as required by § 53a-40 (d)(2). In a thoughtful and well reasoned memorandum of decision, the trial court, Hartmere, J., granted the defendant's motion for a judgment of acquittal as to the persistent felony offender charge. The trial court concluded that the purpose of § 53a-40 (d) was to combat recidivism by enhancing the penalty for those defendants who have demonstrated a pattern of resistance to rehabilitation. The trial court reasoned that the only way to effectuate that purpose would be to require a strict sequence of offense, conviction and punishment for each prior felony before the prior convictions could be considered as a basis for the enhanced penalty. With the permission of the trial court; see General Statutes § 54-96; the state subsequently appealed from that court's judgment of acquittal to the Appellate Court. ⁵

The Appellate Court, in affirming the trial court's judgment, did not address the issue of sequentiality but, rather, concluded that under the plain language of § 53a-40 (d), a defendant could not be deemed a persistent felony offender unless the predicate convictions had been rendered on separate occasions. State v. Ledbetter, 41 Conn.App. 391, 406, 676 A.2d 409 (1996). We granted the state's petition for certification to appeal limited to the following question: "Does the persistent felony offender statute, General Statutes § 53a-40 (d), apply when a defendant pleads guilty to two separate charges in the same proceeding?" State v. Ledbetter, 238 Conn. 902, 677 A.2d 1377 (1996). ⁶ Because we interpret the language of § 53a-40 (d) and its legislative purpose to require a sequence of offense, conviction and punishment for each prior felony before a defendant may be subject to an enhanced penalty as a persistent offender, we conclude that the statute does not apply to this case.

I

Before we reach the issue of the proper interpretation of § 53a-40 (d) as applied to the present case, we must address a threshold issue that was first raised at oral argument: whether the state's appeal of the trial court's judgment should have been barred by the doctrine of double jeopardy and, if so, whether the defendant waived the right to raise that bar by not raising it at the first opportunity. The double jeopardy issue was raised, sua sponte, by this court at oral argument. The parties were then asked to submit supplemental briefs addressing both the issues of double jeopardy and waiver. Following oral argument before this court, the defendant filed a separate motion to dismiss addressing the double jeopardy claim, to which the state filed a memorandum in opposition. That motion is resolved in this opinion.

Because the doctrine of double jeopardy raises questions as to the propriety of the state's appeal; see Smalis v. Pennsylvania, 476 U.S. 140, 145, 106 S.Ct. 1745, 1749, 90 L.Ed.2d 116 (1986) ("When a successful post acquittal appeal by the prosecution would lead to proceedings that violate the Double Jeopardy Clause, the appeal itself has no proper purpose. Allowing such an appeal would frustrate the interest of the accused in having an end to the proceedings against him."); we choose to resolve the issue before we reach the merits of this case. Galland v. Bronson, 204 Conn. 330, 333, 527 A.2d 1192 (1987).

"The constitutional guarantee against double jeopardy serves three separate functions: It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense [in a single trial]. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072[, 2076], 23 L.Ed.2d 656 (1969).... 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)." (Internal quotation marks omitted.) State v. Hill, 237 Conn. 81, 99, 675 A.2d 866 (1996). ⁷

A double jeopardy claim "implicates the very power of the state to bring [a defendant] into court, and thus 'is collateral to, and separable from ... whether ... the accused is guilty of the offense charged.' Abney v. United States, 431 U.S. 651, 659, 97 S.Ct. 2034[, 2040], 52 L.Ed.2d 651 (1977)." State v. Price, 208 Conn. 387, 389 n. 2, 544 A.2d 184 (1988). "Under the double jeopardy clause of the fifth amendment to the United States constitution, the state may not subject to retrial a defendant who has been acquitted of the crime charged. Bullington v. Missouri, 451 U.S. 430, 437-38, 101 S.Ct. 1852[, 1857], 68 L.Ed.2d 270 (1981); State v. Southard, 191 Conn. 506, 510-11, 467 A.2d 920 (1983)." State v. Daniels, 207 Conn. 374, 397, 542 A.2d 306 (1988). Necessarily related to this first prong of protection against double jeopardy is the general rule that, under most circumstances, the state may not appeal from a judgment of acquittal, even when that judgment may have been the result of a misconstruction of the law. Id., at 399, 542 A.2d 306; see also Arizona v. Rumsey, 467 U.S. 203, 211, 104 S.Ct. 2305, 2310, 81 L.Ed.2d 164 (1984); Jackson v. Virginia, 443 U.S. 307, 317 n. 10, 99 S.Ct. 2781, 2788 n. 10, 61 L.Ed.2d 560, reh. denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979). It is this aspect of protection at issue here. The defendant argues that double jeopardy prevents the state from appealing the trial court's judgment of acquittal following the defendant's § 53a-40 (d) sentencing hearing.

Certain sentencing proceedings have been deemed sufficiently trial-like to implicate double jeopardy protections. See Bullington v. Missouri, supra, 451 U.S. at 438-46, 101 S.Ct. at 1857-62 (capital sentencing proceeding sufficiently trial- to invoke double jeopardy protections). This court has not yet had occasion to decide whether the proceeding at which a convicted felon is determined to be a persistent felony offender is sufficiently trial-like as to prevent the state from appealing a judgment of acquittal on a persistent felony offender charge. The defendant argues, and the state concedes, that a § 53a-40 (d) proceeding meets the Bullington criteria. ⁸ This court is not, however bound by these concessions. State v. Putnoki, 200 Conn. 208, 219 n. 6, 510 A.2d 1329 (1986). ⁹ Although we note that Connecticut's persistent felony offender scheme requires a proceeding that does, indeed, have many trial like attributes--the defendant is charged under a specific criminal statute, the defendant must stand trial or plead guilty to the charge, and the state bears the burden of producing evidence that establishes the defendant's status as a persistent felony offender beyond a reasonable doubt--we need not decide at this time whether double jeopardy is implicated by the state's appeal because we conclude that even if such a claim could have been made, the defendant has waived the right to make that claim by failing to assert it in a timely fashion.

"The most basic rights of criminal defendants are ... subject to waiver. See, e. g., United States v. Gagnon, [470 U.S. 522, 528, 105 S.Ct. 1482, 1485, 84 L.Ed.2d 486 (1985) ] (absence of objection constitutes waiver of right to be present at all stages of criminal trial); Levine v. United States, [362 U.S. 610, 619, 80 S.Ct. 1038, 1044, 4 L.Ed.2d 989 (1960) ] (failure to object to closing of courtroom is waiver of right to public trial); Segurola v. United States, [275 U.S. 106, 111, 48 S.Ct. 77, 79, 72 L.Ed. 186 (1927) ] (failure to object constitutes waiver of fourth amendment right against unlawful search and seizure); United States v. Figueroa, 818 F.2d 1020, 1025 [1st Cir.1987] (failure to object results in forfeiture of claim of unlawful postarrest delay); United States v. Bascaro, 742 F.2d 1335, 1365 [11th Cir.1984] (absence...