State v. Palkimas

• Decision Date: 01 September 2009
• Docket Number: No. 29043.,29043.
• Citation: State v. Palkimas, 977 A.2d 705, 116 Conn.App. 788 (Conn. App. 2009)
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Richard PALKIMAS.

977 A.2d 705

116 Conn.App. 788

STATE of Connecticut v.Richard PALKIMAS.

No. 29043.

Appellate Court of Connecticut.

Argued May 18, 2009.

Decided September 1, 2009.

John R. Williams, New Haven, for the appellant(defendant).

Toni M. Smith-Rosario, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, Steven G. Weiss, supervisory assistant state's attorney, and Ricki Goldstein, former assistant state's attorney, for the appellee(state).

BISHOP, GRUENDEL and PELLEGRINO, Js.

BISHOP, J.

The defendant, Richard Palkimas, appeals from the judgment of conviction rendered by the trial court following a plea of nolo contendere to criminal violation of a protective order in violation of General Statutes § 53a-223.On appeal, the defendant claims that the court lacked subject matter jurisdiction to accept his plea of nolo contendere because, pursuant to General Statutes § 46b-38c(g), the charge of criminal violation of a protective order was dismissed once he successfully completed the classroom component of the family violence education program (program).We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our review of the defendant's appeal.On April 30, 2005(April, 2005 arrest), the defendant was arrested and charged with conspiracy to commit assault for allegedly punching his pregnant girlfriend in the face.¹As a result of this alleged incident, on May 2, 2005, the court issued a family violence protective order under § 46b-38c(e).²The protective order required, among other things, that the defendant refrain from entering the home where the victim resided and refrain from any threatening behavior.On June 4, 2005(June, 2005 arrest), the defendant was arrested and charged with violating the protective order on the basis of allegations that he was seen jumping from the window of the victim's residence.On June 28, 2005, in regard to the two arrests, the defendant applied for admission into the program as provided for under § 46b-38c(g).³On July 26, 2005, the defendant's entry into the program was granted, and the case was continued until July 26, 2006.At the time that the defendant's request for admission to the program was granted, the court indicated that the previously issued protective order would remain in effect.

On November 4, 2005, the defendant was arrested and charged with threatening in the second degree and violating a criminal protective order on the basis of an allegation that he telephoned his girlfriend, the same woman involved in the April, 2005 and June, 2005 arrests, and threatened to physically harm or even kill her (November, 2005 arrest).On June 2, 2006, the defendant was arrested and charged with having a weapon in a motor vehicle and possession of drug paraphernalia (June, 2006 arrest).

Subsequently, on July 11, 2006, the state moved to revoke the defendant's participation in the program.The state claimed that the defendant had violated the conditions of the program on the basis of the November, 2005 and June, 2006 arrests, specifically by being arrested and charged with a family violence crime involving the same victim.Following a hearing, the court granted the state's motion to revoke the program on July 26, 2006.⁴

On July 10, 2007, prior to trial, the defendant pleaded nolo contendere to one charge of criminal violation of a protective order in exchange for the state's agreement not to seek incarceration and to enter a nolle prosequi on three of his other criminal files, including the charge of assault in the second degree related to the April, 2005 arrest.⁵At the plea hearing, the defendant submitted a written nolo contendere form to the court.According to the defendant, a box on the plea form reserved for conditional pleas had been checked off, indicating his intention that the plea was to be conditional.Once the defendant handed the form to the clerk, the court asked the clerk if the form was in proper order, and she replied affirmatively.The court proceeded to canvass the defendant regarding his plea.Having found that the plea had been made freely, voluntarily and intelligently, the court accepted the defendant's plea and sentenced him to five years incarceration, execution suspended, five years probation and a $1000 fine.

On July 27, 2007, the defendant filed this appeal from the judgment of conviction.On November 2, 2007, the defendant filed a motion to rectify the trial record.The defendant requested a hearing on that motion to ask the court to find, pursuant to General Statutes § 54-94a, that the state's motion to revoke his participation in the program had precluded him from obtaining automatic dismissal of the charges against him even though he had completed the program.The defendant also requested that the court make a finding that the decision to grant the state's motion to revoke the program was dispositive of the charges.Additionally, the defendant asked the court to find that he had completed the educational classes that had been required prior to the court's revocation of his participation in the program.⁶The state filed an objection to the motion to rectify, arguing that the defendant was not entitled to such a hearing because he was seeking to create a record, rather than to rectify the record.On December 6, 2007, the court denied the defendant's motion, finding that the defendant's plea of nolo contendere was an unconditional plea.⁷

On appeal, the defendant claims that pursuant to § 46b-38c(g), after he successfully completed the educational classes required by the program, his criminal charges should have been dismissed automatically, and the court had no authority later to revoke his participation in the program.The defendant further contends that because his charges should have been dismissed, the court lacked subject matter jurisdiction over the subsequent disposition of those charges, namely, his plea of nolo contendere.⁸To address the defendant's claim, we must answer two questions.First, we must determine whether the defendant's plea was conditional or unconditional.Second, we must decide whether the court had subject matter jurisdiction to accept the defendant's plea of nolo contendere.⁹

Before addressing these issues, we first examine the law pertaining to pleas of nolo contendere."A valid guilty plea generally operates as a waiver of all defects in the prosecution, except those involving the canvass of the plea and the court's subject matter jurisdiction."(Internal quotation marks omitted.)D'Onofrio v. Commissioner of Correction,36 Conn.App. 691, 693-94652 A.2d 1058(1995)."A nolo contendere plea has the same effect as a guilty plea, but a nolo contendere plea cannot be used against the defendant as an admission in a subsequent criminal or civil case."State v. Commins,276 Conn. 503, 510, 886 A.2d 824(2005).Indeed, "[i]t is well established that an unconditional nolo contendere plea, when intelligently and voluntarily made, operates as a waiver of all nonjurisdictional defects and bars later challenges to pretrial proceedings."(Internal quotation marks omitted.)State v. Commins,83 Conn.App. 496, 513, 850 A.2d 1074(2004), aff'd, 276 Conn. 503, 886 A.2d 824(2005)."Thus, usually only those issues fully disclosed on the record which concern either the court's jurisdiction or the intelligent and voluntary nature of the plea are appealable after a nolo contendere plea has been entered and accepted."(Internal quotation marks omitted.)Id.

As our Supreme Court explained in State v. Commins,supra, 276 Conn. at 510-511, 886 A.2d 824, there are three circumstances in which a defendant who has pleaded nolo contendere will not lose his right to appeal.The first is where a defendant made a conditional plea of nolo contendere pursuant to § 54-94a.The enactment of § 54-94a, "modified the broad waiver of nonjurisdictional defects implicit in a plea of nolo contendere."State v. Kelley,206 Conn. 323, 334, 537 A.2d 483(1988).Specifically, § 54-94a provides in relevant part that "[w]hen 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 ... may file an appeal ... 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 statute further provides: "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."¹⁰General Statutes § 54-94a.Our Supreme Court has stated that this legislation"altered the broad waiver of constitutional rights implicit in a plea of guilty or nolo contendere."State v. Madera,198 Conn. 92, 98, 503 A.2d 136(1985).It "did not [however] create a new jurisdictional doorway into [the Appellate Court]."State v. Piorkowski,37 Conn.App. 252, 259, 656 A.2d 1046(1995), rev'd on other grounds, 236 Conn. 388, 672 A.2d 921(1996).

Second, our Supreme Court has noted that an appeal may be permitted, even when the claimed ground for appeal is not within the ambit of § 54-94a, if the court chooses to exercise its "inherent supervisory authority over the administration of justice."State v. Revelo,256 Conn. 494, 502, 775 A.2d 260, cert. denied, 534 U.S. 1052, 122 S.Ct. 639, 151 L.Ed.2d 558(2001).The court's use of this exception has been extremely rare, its application occurring only when there is good cause.State v. Commins,supra, 276 Conn. at 511, 886 A.2d 824.In Revelo, our Supreme Court applied a three part test for whether good cause exists for the court...