State v. Rosado

• Decision Date: 03 January 2006
• Docket Number: No. 25162.,25162.
• Citation: State v. Rosado, 887 A.2d 917, 92 Conn.App. 823 (Conn. 2006)
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Juan ROSADO.

Page 917

887 A.2d 917

92 Conn.App. 823

STATE of Connecticut v. Juan ROSADO.

No. 25162.

Appellate Court of Connecticut.

Argued September 22, 2005.

Decided January 3, 2006.

Mary Boehlert, special public defender, for the appellant (defendant).

Joseph T. Corradino, senior assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and C. Robert Satti, Jr., senior assistant state's attorney, for the appellee (state).

FLYNN, BISHOP and McDONALD, Js.

BISHOP, J.

The defendant, Juan Rosado, appeals from the judgment of the trial court revoking his probation and sentencing him to serve five years of a previously suspended sentence on an underlying conviction for risk of injury to a child. The dispositive issue on appeal is whether the court clearly articulated the circumstances under which the defendant's behavior would breach his plea agreement.¹ We reverse the judgment of the trial court and remand the case for further proceedings in accordance with this opinion.

The following facts and procedural history are relevant to our resolution of the defendant's appeal. On April 2, 2002, the defendant pleaded guilty and was convicted of the crime of risk of injury to a child in violation of General Statutes § 53-21. He was sentenced to five years in the custody of the commissioner of correction, execution suspended, and placed on probation for five years. Subsequently, the defendant was charged with violation of probation.² On June 26, 2003, the defendant admitted a violation of the terms of his probation and made a plea agreement pursuant to State v. Garvin, 242 Conn. 296, 699 A.2d 921 (1997),³ which called for a continuance of the case for a period of four months for disposition. The specific terms of the plea agreement were set forth by the court as follows:

"The Court: Okay. You were placed on probation, by me, back on November 8, 2002. Am I right?

"[The Defendant]: Yes.

"The Court: Okay. Now, we're going to end up watching you for four months. You've got to remain at [the alternative incarceration center (center)]. You've got to keep the drug treatment, give urine samples. If you have a dirty urine, you're going to get your five years; do you understand that?

"[The Defendant]: Yes.

"The Court: If [the center] refers you to another program, you'll go to that program, and we'll watch you there. You've got to comply with all rules and regulations. You cannot pick up any new arrests. You can have no dirty urines; do you understand that?

"[The Defendant]: Yes.

"The Court: If, after four months, it works out like that, then I'll continue you on probation. If, in fact, you end up with a dirty urine or you get a new arrest or you leave the program, you're going to get the five years; is that clear?

"[The Defendant]: Yes."

The center reported no "major problems" with the defendant from June to August, 2003. But between August and October, 2003, the center reported that the defendant had twelve unexcused absences.⁴ On October 7, 2003, after giving the defendant a formal warning, an informal reprimand and deciding to place him on "zero tolerance" status, the center filed a negative report with the court. As a result of the negative report, the defendant appeared in court on October 21, 2003, for a hearing, pursuant to State v. Small, 78 Conn.App. 14, 826 A.2d 211 (2003), to determine whether he had complied with the terms of his Garvin agreement and for disposition following his June 26, 2003 admission of violation of probation. After conducting a sentencing hearing, the court found that the defendant had twelve unexcused absences from the center. Finding that the unexcused absences violated the rules and regulations of the center, the court held that the defendant had violated a condition of his plea agreement and imposed a sentence of five years incarceration. This appeal followed.

On appeal, the defendant claims that he lacked adequate notice that his failure to attend twelve classes at the center would constitute a breach of the plea agreement, subjecting him to the five year sentence.

We begin with a brief overview of pertinent law governing plea agreements. The United States Court of Appeals for the Second Circuit has held that "[b]ecause a defendant pleading guilty pursuant to a plea agreement waives a number of fundamental constitutional rights, see Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the circumstances surrounding the plea agreement must comport with due process to ensure [the] defendant's understanding of its consequences. . . . The notion of fundamental fairness embodied in due process implies that whatever promises the government makes in the course of a plea agreement to induce a guilty plea must be fulfilled." (Citations omitted.) Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 167 (2d Cir.2000). Thus, "[i]t is axiomatic that the trial court judge bears an affirmative, nondelegable duty to clarify the terms of a plea agreement." (Internal quotation marks omitted.) State v. Lopez, 77 Conn.App. 67, 73, 822 A.2d 948 (2003), aff'd, 269 Conn. 799, 850 A.2d 143 (2004).

The dispositive issue in this case is whether the terms of the plea agreement were clear and unambiguous so as to put the defendant on notice that failing to attend classes at the center would result in the imposition of the five year sentence of incarceration. The defendant argues that the terms of the plea agreement were not definitive because there was a latent ambiguity in the court's articulation. We agree with the defendant.

"Our Supreme Court has held that a plea agreement is akin to a contract and that the well established principles of contract law can provide guidance in the interpretation of a plea agreement." Id., at 77, 822 A.2d 948. "Whether a contractual provision is ambiguous presents a question of law and therefore is subject to de novo review." (Internal quotation marks omitted.) Wolosoff v. Wolosoff, 91 Conn.App. 374, 382, 880 A.2d 977 (2005).

"[T]he primary goal of contract interpretation is to effectuate the intent of the parties. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms." (Internal quotation marks omitted.) State v. Lopez, supra, 77 Conn.App. at 78, 822 A.2d 948. The Second Circuit has stated, however, that "the government ordinarily has certain awesome advantages in bargaining power. . . ." (Internal quotation marks omitted.) United States v. Palladino, 347 F.3d 29, 33 (2d Cir.2003). "Because of . . . the substantial constitutional interests implicated by plea agreements, the state must bear the burden for any lack of clarity in the agreement and ambiguities should be resolved in favor of the defendant." Innes v. Dalsheim, 864 F.2d 974, 979 (2d Cir.1988), cert. denied, 493 U.S. 809, 110 S.Ct. 50, 107 L.Ed.2d 19 (1989).

As "[t]he validity of plea bargains depends on contract principles. . . we look to those principles in order to dispose of the disputed condition properly. A court may, where possible, sever the illegal portion of the agreement and enforce the remainder." (Citation omitted; internal quotation marks omitted.) State v. Stevens, 85 Conn.App. 473, 479, 857 A.2d 972, cert. granted on other grounds, 272 Conn. 902, 863 A.2d 695 (2004).

In the present case, the plea agreement was articulated orally by the court during the June 26, 2003 hearing. An examination of the transcript reveals that although the court clearly communicated the consequences of a breach of the plea agreement, the specific behavior that would constitute a breach, subjecting the defendant to incarceration, was not clear.

The ambiguity in the court's explanation lies in the court's failure to state specifically that violating the rules and regulations of the center would constitute a breach of the plea agreement subjecting the defendant to incarceration. As it related to the rules and regulations, the court merely stated that "[i]f [the center] refers you to another program, you'll go to that program, and we'll watch you there. You've got to comply with all rules and regulations." The court clearly stated, however, that "[i]f, in fact, you end up with a dirty urine or you get a new arrest or you leave the program, you're going to get the five years. . . ." If the court sought to convey to the defendant that violating any of the rules and regulations of the center would also constitute a breach of the plea agreement, the court could have clearly communicated that to him.

A statement may be said to be ambiguous if its meaning reasonably is susceptible to more than one interpretation. Montoya v. Montoya, 91 Conn.App. 407, 417, 881 A.2d 319, cert. granted on other grounds, 276 Conn. 916, ___ A.2d ___ (2005). In this instance, one reasonably may interpret the statement regarding the rules and regulations as explaining to the defendant what he must do in order to remain enrolled in the program and that his failure to remain in the program would subject him to incarceration. While the court established a clear nexus between submitting a dirty urine, being rearrested or leaving the center and the imposition of the five year prison sentence, the court established no such connection between violating the rules and regulations of the center and receiving the five year sentence.

The record does not support the state's argument that the court clearly explained the terms of the plea agreement to the defendant and that compliance with the rules of the center was made a specific condition of the plea agreement, the violation of which would result in incarceration. In support of its argument, the state notes that the court, on June 5, 2003, required that the defendant attend the center three times a week if he was working or five times a week if he was unemployed. The state contends that "requirements are synonymous with rules and regulations for the purpose...