State v. Small

• Decision Date: 15 July 2003
• Docket Number: (AC 22939).
• Citation: 78 Conn. App. 14,826 A.2d 211
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. JOHN SMALL

78 Conn. App. 14

826 A.2d 211

STATE OF CONNECTICUT v. JOHN SMALL

(AC 22939).

Appellate Court of Connecticut.

Argued May 1, 2003.

Officially released July 15, 2003.

Schaller, Flynn and Stoughton, Js. Earl I. Williams, special public defender, with whom, on the brief, was Rebecca L. Johnson, for the appellant (defendant).

Julia K. Conlin, deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, Robin S. Schwartz, former assistant state's attorney, and James R. Dinnan, senior assistant state's attorney, for the appellee (state).

Opinion

STOUGHTON, J.

The defendant, John Small, appeals from the judgments of conviction, rendered after he admitted to three counts of violation of probation in violation of General Statutes § 53a-32 and pleaded guilty to one count of breach of the peace in violation of General Statutes (Rev. to 2001) § 53a-181. On appeal, the defendant claims that the trial court (1) failed to canvass him properly concerning his guilty plea on the charge of breach of the peace, and (2) violated his due process rights when it denied his motion to withdraw his admissions and his guilty plea, and imposed a greater sentence than he had bargained for in the plea agreement. We agree in part with the defendant. We conclude that the court's canvass on the charge of breach of the peace was insufficient. We further conclude that there was no evidentiary basis for any finding that the defendant's Garvin agreement¹ had been breached. Accordingly, we reverse the judgments of the trial court and remand the cases for further proceedings.

The following facts and procedural history are undisputed. On January 23, 2002, the defendant admitted to violation of the probation imposed as a part of the sentences for three separate criminal offenses for which the total effective term of the suspended sentences was seven years and eleven months. The prosecutor described the violations of probation, most of which arose out of violent behavior, and recommended that the defendant serve two years and six months of the suspended sentences. The prosecutor also informed the court that he would not object to a request by defense counsel that the case be continued for two weeks, but requested that the court issue specific orders that the defendant have absolutely no contact with the victims and that it conduct a Garvin canvass.

After the court had made the necessary inquiries and determined that the admissions by the defendant had been made knowingly and voluntarily, the court turned to the plea agreement itself. It continued the matter for two weeks and informed the defendant that it would impose a sentence of two years and six months, and that if it decided to impose a greater sentence, it would allow him to withdraw his plea, except that if he failed to appear or if he was arrested again, the court would not be bound by the agreement and would impose a sentence of four years and eleven months. The defendant agreed to those conditions.² The court then informed the defendant that there was to be no contact between him and the victims. The defendant stated that he did not agree with many of the allegations being made against him, but that he understood that if he became involved again with the people making those allegations, the plea would be withdrawn. The court disabused the defendant of that notion at once and informed him that if he became involved with them again, he would be incarcerated for four years and eleven months.³ The defendant agreed to that condition, but when he expressed concern that there might be false allegations made against him, the court replied that it would have to find probable cause.⁴ After further colloquy, the defendant agreed that he did not want to have a hearing on the violation of probation charges and that he would have no contact with the victims. The court again stressed that there was to be no contact, and informed the defendant that if it found out that there was contact and believed that there was probable cause for an arrest, it would be able to sentence him to as much as four years and eleven months. The defendant stated that he agreed and understood, and defense counsel acknowledged his belief that the defendant had agreed pursuant to the canvass under State v. Garvin, 242 Conn. 296, 299-302, 699 A.2d 921 (1997).⁵

The following day, January 24, 2002, the defendant was present in court, and the prosecutor informed the court that the witnesses with whom the defendant had been ordered to have no contact had been in court the day before and that when they left the court, the defendant had had contact with them. The prosecutor referred to a police report and informed the court that the witnesses had given statements to the police as to what was said, and that two judicial marshals who had escorted the witnesses out to a car thought that the defendant's friends were trying to move him away from the car. The defendant stated that he was not near the car and that his friends were moving him away from the courthouse. The prosecutor requested that the defendant be sentenced to serve the full amount of time that he owed.⁶

Defense counsel thereupon sought to withdraw the admissions of probation violation and the guilty plea because an agreement pursuant to Garvin should not be enlarged to cover anything beyond failures to appear and because he believed that sentencing would be based on the new arrest. He also stated that the defendant had witnesses who would contradict what appeared in the reports and that he would like an opportunity to litigate the issue. The court responded that it had canvassed the defendant thoroughly and had informed him that it would allow him to withdraw his pleas if it intended to impose a sentence of more than two years and six months unless he was arrested again or had any contact with the victims. The court stated that it was looking at the police report, which indicated that there were affidavits from two victims and that there was contact with them after they had left the courtroom. The court deemed the report reliable because two judicial marshals had observed the defendant in close proximity to the car, presumably the car to which the witnesses or victims were being escorted. The court decided that there had been contact in violation of its order, which it expressed as an order not to initiate contact, denied the motion and imposed a sentence of four years and eleven months pursuant to the agreement.⁷

The defendant then uttered a scatological remark, a word seldom heard in the courtroom, but which is, we believe, not uncommon on the street. That quite properly provoked the court to warn the defendant that he would be held in contempt in the absence of an apology. After the defendant apologized, he was removed from the courtroom. The court then extended the defendant the right of allocution, which understandably had been overlooked, but the offer was declined, apparently on the advice of counsel. Under the circumstances, the defendant never gave his version of the events from the day before.

I

The defendant first claims that the court violated his due process rights because the court failed to canvass him concerning the guilty plea to the charge of breach of the peace. The state agrees that the defendant was not properly canvassed. Because the record does not disclose a waiver of the three core constitutional rights guaranteed by the federal constitution, the defendant's guilty plea to that charge must be vacated. See, e.g., State v. Domian, 235 Conn. 679, 686-87, 668 A.2d 1333 (1996).

II

Next, the defendant claims that his rights to due process were violated when the court denied his motion to withdraw his admissions and his guilty plea, and imposed a sentence greater than that bargained for in the plea agreement. The defendant sets forth three arguments in support of his claim, which we will set out more fully. In addition, the defendant argues that the court improperly found that he had violated the terms of his Garvin agreement. The principal issue in this appeal, however, depends on whether the court properly imposed a sentence greater than that bargained for under the principle enunciated in State v. Garvin, supra, 242 Conn. 296.

The state asserts in its brief that the sole basis for the defendant's motion to withdraw his admissions was that Garvin agreements should not be enlarged to cover anything more than failures to appear and, therefore, that his claims on appeal were not preserved at trial and should not be reviewed.

A

First, the defendant argues that under a Garvin plea agreement, a court may not impose any condition on the sentencing agreement except a failure to appear for sentencing. We do not agree.

"The validity of plea bargains depends on contract principles." Id., 314. In Garvin, the trial court had warned the defendant at the time of his guilty pleas that if he failed to appear for sentencing, the court would not be bound by the agreed on sentence. Id., 300. When the defendant failed to appear and subsequently was apprehended, the court refused to allow him to withdraw his pleas and imposed a sentence greater than that to which he had agreed. Id., 300-301. The condition of the plea agreement, which the defendant had failed to satisfy, was that he appear for sentencing. Id. Garvin, however, does not suggest that a failure to appear is the only condition that may be imposed on the agreement. Id., 314.

In State v. Trotman, 68 Conn. App. 437, 440, 791 A.2d 700 (2002), this court, following Garvin, upheld the finding of the trial court that the defendant had breached her plea agreement when she produced urine samples that tested positive for opiates. Because the defendant had been unambiguously warned by the court and was aware of and understood her obligation not to produce positive urine samples, the court properly imposed a sentence of incarceration instead of the suspended...