State v. Schaeffer, 2243
| Decision Date | 24 September 1985 |
| Docket Number | No. 2243,2243 |
| Citation | 498 A.2d 134,5 Conn.App. 378 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Michael V. SCHAEFFER. |
A. Susan Peck, Hartford, with whom, on brief, was Susan K. Smith, Hartford, for appellant (defendant).
Samuel J. Sferrazza, Asst. State's Atty., for appellee (state).
Before DUPONT, C.P.J., and SPALLONE and DALY, JJ. DUPONT, Chief Presiding Judge.
The core issue of this appeal is whether the defendant's motion to withdraw his plea of nolo contendere should have been granted by the trial court although it was made two days after the conclusion of the proceeding at which the sentence was imposed. The answer requires an examination of the framework of Practice Book §§ 686 through 722 and the essential components of a voluntary plea of guilty or nolo contendere as mandated by constitutional principles.
On May 18, 1983, the defendant entered a plea of nolo contendere to the charge of manslaughter in the second degree with a motor vehicle while intoxicated, a violation of General Statutes § 53a-56b. The plea was accepted by the trial court, Barry, J., which found it to have been made knowingly, intelligently, and voluntarily, with full understanding of the crime charged and of the possible consequences of the plea. During the course of the taking of the plea, the trial court was informed that the state would recommend a sentence of one year 1 if the presentence investigation report substantiated the facts presently known by the state, but that the defendant was free to argue for a lesser sentence. The defendant was specifically advised by the court that the state might vary its recommendation if the presentence investigation report was not as anticipated. The defendant's counsel stated that it was her understanding and that of the defendant that he would be allowed to withdraw his plea if the state changed its recommendation. The state acquiesced in that understanding. The defendant was told by the court that it was not bound by any recommendation the state might make as to an appropriate sentence, and the defendant stated that he understood. The defendant was not told by the court that if the sentence imposed by the court exceeded the recommendation that he would be allowed to withdraw his plea. Nor did the court inform the defendant that if the case was continued for sentencing, a different sentence might be imposed on sentencing by another judicial auth ority. The case was continued for the preparation of a presentence investigation report and for sentencing.
On July 19, 1983, the sentencing court, Morelli, J., was informed of the sentence recommendation of the state. It nevertheless imposed a sentence of three years, suspended after fifteen months, with a probationary period of five years, the special condition of which was that the defendant was not to drive a motor vehicle during the entire period of probation. The court did not, prior to the imposition of its sentence, advise the defendant that it would not follow the state's recommendation and the defendant made no motion to withdraw his plea during the sentencing hearing. 2
Written motions to withdraw the plea and to correct the sentence were made two days later. A hearing was held on these motions during which the defendant testified that he believed, when he entered his plea, that if the court felt it must impose a greater punishment than the state's recommendation he would have a right to withdraw his plea and go to trial, and he testified that his counsel told him he had such a right. In the defendant's brief, his counsel states that she so advised him. The court denied both motions.
On appeal, the defendant claims that the trial court, Morelli, J., erred (1) in imposing a sentence which exceeded the recommendation of the state without affording the defendant an opportunity to withdraw his plea, (2) in denying the defendant's motion to withdraw his plea when the court, Barry, J., had failed substantially to comply with Practice Book §§ 697 and 712, thereby accepting a plea which was not voluntarily or intelligently entered, and (3) in denying his motion for correction of the sentence. 3 At the hearing on defendant's motions, the defendant raised no claim that the trial court taking the plea had failed to follow the rules of practice. Implicit in the argument made during the hearing, however, is the claim that the defendant's plea was not voluntary. Such a claim may be raised on appeal, even if for the first time, since it involves a fundamental constitutional right. State v. Childree, 189 Conn. 114, 119, 454 A.2d 1274 (1983).
Plea bargaining is no longer an illicit activity of the state and the defendant, condoned in the back corridors of the courthouse while castigated in the courtroom. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
A bargain struck between the state and a defendant as to punishment or charge of offense has no constitutional significance in and of itself and only becomes a constitutionally protected interest when the judgment of guilty enters. Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984). A guilty plea, which leads to a judgment of guilty, is equivalent to a profession of guilt in open court; State v. Roach, 447 S.W.2d 553, 556 (Mo.1969); and its autonomous and voluntary character is compromised when the promises made to induce the plea are unfulfilled. Note, "Plea Bargains--Specific Performance of a Prosecutor's Unfulfillable Promise: A Right or a Remedy?: Palermo v. Warden, Green Haven State Prison," 9 Conn.L.Rev. 483 (1977).
Connecticut's rules of practice sanction plea agreements within certain specified parameters. Such rules of criminal procedure are intended to safeguard the due process rights of an accused. Shorette v. State, 402 A.2d 450, 457 (Me.1979). Penal statutes and criminal procedural rules are to be strictly construed in order to protect fundamental constitutional rights. State v. Cook, 183 Conn. 520, 522, 441 A.2d 41 (1981).
Under the broad heading of "Disposition Without Trial" our Practice Book contains three subsidiary headings of relevance to this appeal. Practice Book §§ 686 through 698 contain the "Procedure for Plea Discussions"; §§ 708 through 718 concern the "Plea of Guilty or Nolo Contendere"; and §§ 719 through 722 involve the "Withdrawal of Plea." The procedure for plea discussions, Practice Book §§ 686 through 693, relate to the obligations and possible agreements of the parties which may negate the eventuality of a trial. The other sections involving plea discussions, §§ 694 through 698, concern the obligation of the court to require disclosure of any agreement of the parties which contemplates the entry of a plea of guilty or nolo contendere, and the obligations of the court in the event it accepts or rejects the agreement. Practice Book §§ 708 through 713 contain the obligations of the court to the defendant upon a plea of guilty or nolo contendere before the plea may be accepted and found to be voluntary, and §§ 719 through 722 address the circumstances necessary in order to permit or require the court to allow the defendant to withdraw his plea.
There are three types of plea agreements into which a defendant and the state may enter pursuant to Practice Book § 692. Each of these requires a promise of a defendant to plead guilty or nolo contendere in exchange for the state's promise to act in a particular way in connection with the charges pending against the defendant or in connection with a proposed sentence. The first species of the general genus of plea agreement is the agreement of the state to amend an information to charge a particular offense or to nolle, recommend dismissal of, or not to bring other charges. Practice Book §§ 692(1) and (2). The second and third species of agreement involve the sentence to be imposed and are embodied within Practice Book § 692(3).
That section provides: A construction of the rule is necessary. "The rules of statutory construction apply with equal force to Practice Book rules." Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984).
The words "[t]he parties may agree" preface all of subsection (3) and modify both the clause "that the sentence or other disposition will not exceed specified terms" and the clause "that the prosecuting authority will recommend a specific sentence, not oppose a particular sentence, or make no specific recommendation." The first clause relates to a mutual agreement of both the state and a defendant that a specific sentence should not be exceeded, and the second clause relates to the promise of the state to recommend a specific sentence, not to oppose a particular recommendation or to make no specific recommendation. The word "or" which immediately follows the first clause is disjunctive and not conjunctive. The argument of the state that the first clause refers to an action of the court, that is, its acquiescence in a particular sentence, is rejected.
Thus, in exchange for the defendant's plea of not guilty or nolo contendere, the parties may both agree that a sentence not to exceed certain specified terms is an appropriate disposition of the case or the state may agree to recommend a particular sentence, not oppose a particular sentence or make no specific recommendation.
A recommendation or request of the state as to a particular sentence made to the court need not be a...
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