State v. Patterson

Decision Date02 April 1996
Docket NumberNo. 15289,15289
Citation674 A.2d 416,236 Conn. 561
PartiesSTATE of Connecticut v. Warren R. PATTERSON.
CourtConnecticut Supreme Court

James M. Ralls, Assistant State's Attorney, with whom, on the brief, were Eugene Callahan, State's Attorney, and Carol Dreznick, Assistant State's Attorney, for appellant (state).

Craig A. Raabe, Hartford, with whom was Dina S. Wenger, for the Connecticut Criminal Defense Lawyers Association as amicus curiae.

Before PETERS, C.J., and BORDEN, BERDON, NORCOTT and KATZ, JJ.

NORCOTT, Justice.

The dispositive issue in this certified appeal is whether, after having been tried and convicted of a felony, the defendant, Warren R. Patterson, has a constitutional right to a presentence investigation report (PSI) prior to being sentenced. 1 The Appellate Court held that the trial court violated the defendant's constitutional right to due process because it had failed to order a PSI. State v. Patterson, 37 Conn.App. 801, 819-20, 658 A.2d 121 (1995). We granted the state's petition for certification to appeal from the judgment of the Appellate Court. 2 We conclude that a criminal defendant does not have a federal constitutional right to a PSI and, accordingly, we reverse the judgment of the Appellate Court.

After an extended procedural history, this case is now before us for the second time. See State v. Patterson, 230 Conn. 385, 645 A.2d 535 (1994). The defendant was charged with possession of marijuana in violation of General Statutes § 21a-279(c), 3 possession of marijuana with intent to sell in violation of General Statutes § 21a-277(b), 4 and violation of probation, to which he earlier had been sentenced based on a separate conviction also involving the sale of narcotics. After a jury trial, he was acquitted of the first charge and convicted of the second, and the trial court rendered a judgment of conviction and a judgment of revocation of probation. The defendant appealed from the judgments of conviction and revocation of probation to the Appellate Court, which reversed the judgments. State v. Patterson, 31 Conn.App. 278, 624 A.2d 1146 (1993). Thereafter, the state petitioned for certification to appeal from the judgment of the Appellate Court. We granted the petition limited to the issue of whether the judge in a criminal trial must be present in the courtroom during the entire jury voir dire. State v. Patterson, 227 Conn. 901, 630 A.2d 72 (1993). We reversed the judgment of the Appellate Court and remanded the case to that court for consideration of the defendant's remaining claims. State v. Patterson, supra, 230 Conn. at 386-87, 645 A.2d 535.

On remand, the defendant claimed that the trial court improperly had failed to follow procedural rules, including Practice Book § 910, in sentencing him. 5 State v. Patterson, supra, 37 Conn.App. at 803, 815, 658 A.2d 121. The Appellate Court agreed, and held that the trial court had violated the defendant's federal constitutional right to due process because it had failed to order a PSI. Id., at 821, 658 A.2d 121.

Relying on the fact that a criminal defendant is entitled to due process during the sentencing stage, which includes the right to effective assistance of counsel and the right not to be sentenced based on improper factors or erroneous information, and on the fact that a PSI is the principal method of furnishing information to the trial court during the sentencing stage, the Appellate Court concluded that a PSI is necessary to a meaningful right to counsel and, therefore, is required to secure the defendant's right to due process at sentencing. Id., at 819-20, 658 A.2d 121.

The state petitioned for and was granted certification to appeal from the judgment of the Appellate Court. See footnote 2. While the petition was pending, the defendant's counsel moved for permission to withdraw his appearance, because the defendant had fled the jurisdiction and his whereabouts were unknown. Subsequently, because of the substantial public interest at stake, we granted a motion filed by the Connecticut Criminal Defense Lawyers Association to appear as amicus curiae on behalf of the defendant and to file an amicus brief. We thereupon granted defense counsel's motion to withdraw.

The following facts are undisputed. "Immediately following the verdict, the trial court excused the jury and stated its intention to impose a sentence at that time. The defendant's counsel made an oral motion for a one week continuance 'for the defendant to get certain affairs in order' and in order 'to file motions.' Shortly after the court denied this motion, counsel reiterated his request asserting, 'I'm going to ask again for a short continuance. If not a week, Your Honor, then a day or two so the defendant can get his life in order prior to being incarcerated.' " Id., at 817, 658 A.2d 121. Prior to imposing a sentence, however, the court asked defense counsel if he would like to be "heard on [the] sentencing." In response, in addition to his request for a short continuance, defense counsel requested leniency, noting that the defendant had several children for whom he cared, that there were no victims in this case, that no one was injured and that the quantity of narcotics involved in the conviction was small. Thereafter, the court sentenced the defendant to five years for the present conviction and eighteen months for the probation violation, to be served consecutively.

On appeal, the state claims that the Appellate Court improperly concluded that the defendant has a constitutional right to a PSI under the due process clause of the fourteenth amendment to the United States constitution. 6 In that connection, the state argues that (1) the defendant's right to due process at sentencing does not include the right to a PSI, and (2) although a liberty interest may arise from state statutes and court rules, the defendant cannot prevail under this theory in light of the recent United States Supreme Court decision in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), in which the court set forth the proper analysis for determining when such liberty interests arise. 7 In the alternative, the state claims that even if we were to hold that the defendant has a constitutional right to a PSI, he waived that right when defense counsel failed to object to the trial court's failure to order a PSI during the sentencing stage. Finally, the state claims that even if we were to hold that the defendant did not waive his right to a PSI, any error was harmless because the trial court, in determining the appropriate sentence, had before it virtually all of the information that would have been provided by a PSI. We agree with the state that the defendant does not have a constitutional right to a PSI and reverse the judgment of the Appellate Court. 8

"The fourteenth amendment provides, in part, 'nor shall any State deprive any person of life, liberty or property, without due process of law....' The interest at stake in the present proceeding is [the defendant's] liberty interest. There are two elements which must be established in order to find a due process violation. First, because not every liberty interest is protected, [the defendant] must establish that he has a liberty interest that comes within the ambit of the fourteenth amendment. Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864 [868-69], 74 L.Ed.2d 675 (1983); Meachum v. Fano, 427 U.S. 215, 223-24, 96 S.Ct. 2532 [2537-38], 49 L.Ed.2d 451, reh. denied, 429 U.S. 873, 97 S.Ct. 191, 50 L.Ed.2d 155 (1976); Board of Regents v. Roth, 408 U.S. 564, 571, 92 S.Ct. 2701 [2706], 33 L.Ed.2d 548 (1972); Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 571, 409 A.2d 1020 (1979). If it is determined that a protected liberty is implicated, then the second element that must be addressed is what procedural protections are 'due.' Goss v. Lopez, 419 U.S. 565, 577, 95 S.Ct. 729 , 42 L.Ed.2d 725 (1975); Board of Regents v. Roth, supra [at] 569-70 ; Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593 [2600], 33 L.Ed.2d 484 (1972); see Williams v. Bartlett, 189 Conn. 471, 477, 457 A.2d 290 (1983)." State v. Davis, 190 Conn. 327, 336-37, 461 A.2d 947, cert. denied, 464 U.S. 938, 104 S.Ct. 350, 78 L.Ed.2d 315 (1983).

Due process analysis begins with the identification of the interests at stake. "Liberty interests protected by the Fourteenth Amendment may arise from two sources--the Due Process Clause itself and the laws of the States." (Internal quotation marks omitted.) State v. Campbell, 224 Conn. 168, 182, 617 A.2d 889 (1992), cert. denied, 508 U.S. 919, 113 S.Ct. 2365, 124 L.Ed.2d 271 (1993). The amicus claims that there are two liberty interests of which the defendant has been deprived without due process of law: (1) his liberty interest in the sentencing process; and (2) his liberty interest in a PSI that arises from Practice Book § 910. Our analysis, therefore, is bifurcated.

I

The state contends that the Appellate Court's conclusion that the defendant's right to due process at sentencing includes the right to a PSI is not supported by the traditional due process balancing test. See Mathews v. Eldridge, 424 U.S. 319, 348-49, 96 S.Ct. 893, 909-10, 47 L.Ed.2d 18 (1976). We agree. 9

It is undisputed that the defendant possesses a liberty interest that is implicated during the sentencing process. In the present case, the Appellate Court based its decision on this interest and the due process rights emanating therefrom. "[I]t is now clear that the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause. Even though the defendant has no substantive right to a particular sentence within the range authorized by statute, the sentencing is a critical stage of the criminal proceeding at which he is entitled to the effective assistance of counsel.... The defendant has a legitimate interest in the character of the...

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