State v. Niblack, 13968

• Court: Supreme Court of Connecticut
• Writing for the Court: FRANCIS X. HENNESSY
• Citation: 220 Conn. 270,596 A.2d 407
• Parties: STATE of Connecticut v. Brian NIBLACK.
• Docket Number: No. 13968,13968
• Decision Date: 20 August 1991

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596 A.2d 407 220 Conn. 270 STATE of Connecticut
v.
Brian NIBLACK. No. 13968. Supreme Court of Connecticut. Argued April 26, 1991.
Decided Aug. 20, 1991.

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[220 Conn. 271] Gregory T. D'Auria, Special Public Defender, with whom, on the brief, was James W. Bergenn, Special Public Defender, for appellant (defendant).

[220 Conn. 272] Paul J. Ferencek, Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and James Clark, Asst. State's Atty., for appellee (state).

Before [220 Conn. 270] SHEA, CALLAHAN, GLASS, BORDEN and FRANCIS X. HENNESSY, JJ.

[220 Conn. 272] FRANCIS X. HENNESSY, Associate Justice.

The defendant, Brian Niblack, was charged in an original information with the crime of murder in violation of General Statutes § 53a-54a, ¹ and, in an additional information, with the crimes of escape from custody in violation of General Statutes

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§ 53a-171, and kidnapping in violation of General Statutes §§ 53a-92(a)(2)(B) and 53a-8. On September 15, 1988, the trial court, Quinn, J., held a hearing pursuant to article first, § 8 of the Connecticut constitution as amended, ² and General Statutes [220 Conn. 273] § 54-46a ³ to determine whether there was probable cause to prosecute the defendant for the crime of murder. Probable cause to prosecute was found, and the defendant pleaded not guilty to the murder charge. On November 8, 1988, the defendant successfully moved to vacate the probable cause determination because the exculpatory information mailed by the state was not received by defense counsel until two days after the conclusion of the probable cause hearing. A new hearing[220 Conn. 274] date of November 15, 1988, was set by the court. At the second hearing, the trial court, Corradino, J., found probable cause. The defendant, thereafter, pleaded not guilty and, while awaiting trial, entered into plea negotiations with the state. Following those negotiations, the defendant pleaded guilty on October 27, 1989, to the charges of murder and escape from custody pursuant to the doctrine contained in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). He also pleaded guilty on December 5, 1989, to two unrelated counts of robbery. ⁴ The court imposed an aggregate fifty year prison sentence for all charges in accordance with a plea agreement. The defendant now appeals to this court. We affirm the judgments of the trial court.

The facts in this case, as summarized by the assistant state's attorney at the defendant's plea canvass, are as follows. On the morning of June 11, 1987, Dean Allen, the

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son of the murder victim, James Allen, had become involved in a fight with Harvey Ward on Eastern Circle in New Haven. Later in the day, Ward telephoned the defendant, who did not reside on Eastern Circle, to come to the area. The defendant, Ward and two other individuals arrived at Eastern Circle and found a fight taking place between Dean Allen and Derrick Gillian. The victim was attempting to break up the fight when the defendant displayed a gun, which he fired several times into the air. The victim told the defendant to put the gun away and, as the victim stepped toward him, the defendant leveled the gun and fired one shot striking the victim in the heart. The victim died as a result of this wound.

In this appeal, the defendant claims that he was denied a valid probable cause hearing, thereby depriving the trial court of jurisdiction over him and rendering[220 Conn. 275] all subsequent proceedings moot. He claims that the probable cause hearing was invalid because the trial court: (1) denied his request for a copy of the statement given to the New Haven police by Raymond Wallace, the state's sole witness at the probable cause hearing; (2) failed to hold a probable cause hearing within sixty days from the issuance of the information as required by General Statutes § 54-46a(b); ⁵ and (3) denied him the opportunity to present evidence of an affirmative defense that would have negated a finding of intent, which is a necessary element of the crime of murder. The defendant raises the additional claim that the trial court, Damiani, J., incorrectly accepted his plea of guilty, contending that it was not made knowingly, intelligently and voluntarily for three reasons: (1) the trial court's active participation in the plea process coerced his plea; (2) no factual basis was established to support a finding that he had acted with intent to commit murder; and (3) the trial court failed to follow through on a promise made to him in connection with his plea bargain.

I

The defendant first contends that because he was denied a valid probable cause hearing, the trial court lacked jurisdiction over his person, thereby invalidating his plea of guilty under the Alford doctrine. The state argues, however, that the defendant's unconditional guilty plea constitutes a waiver of his subsequent challenge to the trial court's in personam jurisdiction. We agree.

In State v. Mitchell, 200 Conn. 323, 332, 512 A.2d 140 (1986), we recognized that an adversarial probable cause hearing is a critical stage in the prosecution of a defendant and held that "under the express terms of article first, § 8, of our state constitution as amended, [a valid probable cause hearing] is a jurisdictional [220 Conn. 276] prerequisite to continuing prosecution." Acknowledging that § 54-46a expressly allowed for the waiver of a preliminary hearing to determine probable cause, we explained in State v. John, 210 Conn. 652, 665 n. 8, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S.Ct. 84, 107 L.Ed.2d 50 (1989), that our reference to a "jurisdictional prerequisite" in State v. Mitchell, supra, "pertains, not to subject matter jurisdiction, but only to jurisdiction over the person of the defendant." See State v. Boyd, 214 Conn. 132, 136, 570 A.2d 1125 (1990); State v. McPhail, 213 Conn. 161, 170, 567 A.2d 812 (1989). We therefore concluded in State v. John, supra, that defects at a probable cause hearing relate to jurisdiction over the person of the defendant and are waived if not seasonably raised.

The defendant's chief argument in support of his claim that he has not waived his right to challenge the validity of his probable cause hearing is that the relatively new mandate ⁶ in our state constitution that there be a valid probable cause hearing prior to the prosecution of an individual charged with a crime punishable by death or life imprisonment should remove his case from the application of established

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principles of waiver of defects related to in personam jurisdiction. We are not persuaded by this argument.

"As a general rule, an unconditional plea of guilty ... intelligently and voluntarily made, operates as a waiver of all nonjurisdictional defects and bars the later assertion of constitutional challenges to pretrial proceedings.... Therefore, only those issues fully disclosed in the record which relate either to the exercise of jurisdiction by the court or to the voluntary and intelligent nature of the plea are ordinarily appealable [220 Conn. 277] after a plea of guilty...." (Emphasis in original.) State v. Madera, 198 Conn. 92, 97-98, 503 A.2d 136 (1985); see State v. Gilnite, 202 Conn. 369, 374 n. 4, 521 A.2d 547 (1987); Buckley v. Warden, 177 Conn. 538, 542-43, 418 A.2d 913 (1979). Although we noted in State v. Madera, supra, 198 Conn. at 98 n. 6, 503 A.2d 136, that a guilty plea, whether conditional or unconditional, does not preclude review of "jurisdictional defects," we explained that those defects have been characterized as those that would prevent a trial from occurring in the first place, as when the court lacks jurisdiction over the case.

When we stated in State v. John, supra, 210 Conn. at 665 n. 8, 557 A.2d 93, that "like other defects relating to jurisdiction of the person, any infirmity in the evidence presented at a probable cause hearing is deemed to be waived if not seasonably raised," we did not conclude that the mandate in our state constitution that there be a valid probable cause hearing precluded such a waiver. Likewise, we are not persuaded that a challenge based on this constitutional mandate differs so greatly from any other constitutional challenge to a pretrial proceeding so as to require this court to deviate from the principle that an unconditional plea of guilty, intelligently and voluntarily made, bars the later assertion of a constitutional challenge to a pretrial proceeding. State v. Madera, supra.

We therefore conclude that the defendant's entry of a guilty plea under the Alford doctrine constituted a waiver of his three claims challenging the validity of his probable cause...