State v. Sostre, No. CR99-0165989 (Conn. Super. 10/22/2002)

• Decision Date: 22 October 2002
• Docket Number: No. CR99-0165989,CR99-0165989
• Citation: State v. Sostre, No. CR99-0165989 (Conn. Super. 10/22/2002) (Conn. Super. 2002)
• Court: Connecticut Superior Court
• Parties: STATE OF CONNECTICUT v. ALEX SOSTRE

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STATE OF CONNECTICUT v. ALEX SOSTRE

No. CR99-0165989

Superior Court of Connecticut.

Memorandum filed October 22, 2002

Criminal law and procedure; capital felony; motion in limine; evidence of prior same felony conviction sought to be used by state as aggravating factor in death penalty phase of defendant's capital felony proceedings; whether, during penalty phase for defendant convicted of capital felony, in addition to other felonies, evidence of prior guilty plea, which was basis for conviction of felony charge of larceny in third degree while defendant was minor, required evidentiary hearing by court to assess plea's constitutionality as knowingly and intelligently made in ruling upon defendant's motion in limine to strike that conviction as same felony aggravant in determining his sentence in death penalty proceedings; whether defendant sustained his burden of proving his counsel's performance was both defective and that he was prejudiced thereby so as to sustain his claim of ineffective assistance of counsel at prior plea hearing; whether fundamental fairness required exclusion of evidence of defendant's prior felony conviction at present proceeding so as to warrant granting of his motion in limine.

Proceedings

Memorandum of decision on the defendant's amended motion in limine. Motion denied.

James E. Thomas, state's attorney, with whom was David Zagaja, assistant state's attorney, for the state.

Karen A. Goodrow, public defender, with whom was Michael Isko, assistant public defender, for the defendant.

LAVINE, Judge.

INTRODUCTION

Pursuant to a motion dated October 2, 2002, the defendant, Alex Sostre, has moved the court to strike the aggravating circumstance alleged under General Statutes § 53a-46a (i) (1), or, in the alternative, to preclude from evidence the defendant's prior felony larceny conviction. The present motion supersedes a similar pleading dated August 8, 2002 entitled "Motion In Limine Re: Evidence of Other Crimes, Wrongs, or Acts" and a pleading dated September 25, 2002 entitled "Supplemental Motion In Limine Re: Evidence of Prior Felony." The facts in the present case are set out in detail in our Supreme Court's decision in State v. Sostre, 261 Conn. 111, 802 A.2d 754 (2002), and will not be restated.

The state asserts as its only aggravant that the defendant was convicted of a prior "same felony" as one of the felony larceny offenses he is alleged to have committed at the time he is accused of having murdered East Hartford police officer Brian Aselton on January 23, 1999. General Statutes § 53a-46a (i) (1) provides that it shall be an aggravant if: "The defendant committed the offense during the commission or attempted commission of, or during the immediate flight from the commission or attempted commission of, a felony and the defendant had been previously convicted of the same felony." The record in the present case indicates that the defendant pleaded guilty to the felony charge of larceny in the third degree on May 20, 1993, in connection with the theft of an automobile. He was sentenced to four years of incarceration in connection with this larceny conviction, an assault and two violations of probation on July 1, 1993.

In support of his October 2, 2002 motion, the defendant makes the following three assertions. First, pursuant to Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d (2002) and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2347, 1147 L. Ed. 2d 435 (2000), the jury must determine any fact that raises the defendant's maximum penalty. Second, the guilty plea which was the basis for the prior larceny conviction is void in that it was not a voluntary or knowing guilty plea. It was rendered without effective assistance of counsel, and, therefore, the conviction resulting from that plea cannot lawfully be used to establish an aggravating factor under § 53a-46a (i) (1). Third, the use by the state of a prior conviction to secure a death sentence, when that conviction is based on criminal conduct which occurred at the time the defendant was under eighteen years of age, violates the public policy of Connecticut's death penalty statute, which bars the death penalty for criminal acts that occur when the actor is under eighteen years of age. General Statutes § 53a-46a (h) (1). The defendant asserts that the factual basis for the motion is that on May 20, 1993, he pleaded guilty in Superior Court to the charge of larceny in the third degree arising from an incident in which the defendant was in a stolen motor vehicle. The incident occurred on April 21, 1992, when the defendant was sixteen years of age. At the time of his guilty plea, the court, O'Keefe, J., assured the defendant that although the state was seeking incarceration, the court would send him "some place other than jail to deal with" his apparent emotional problems. On July 1, 1993, the sentencing court, Damiani, J., imposed a sentence of incarceration of four years on the charge of assault in the third degree.

DISCUSSION

The pending motion raises two fundamental issues, neither of which has been addressed previously in this state. The first issue is whether the defendant is entitled to an evidentiary hearing in this court to challenge the validity of his prior felony conviction dating from May, 1993, when the state seeks to use that prior conviction as an aggravant in a death penalty proceeding. If the defendant is so entitled, the second issue concerns the proper scope of any such hearing and which party has the burden to proceed and persuade as well as what must be proven to prevail. The state contests the defendant's right to an evidentiary hearing. The defendant argues a hearing is necessary to pursue his claim.

On October 8, 2002, while still evaluating the pending motion, the court decided to permit the defendant to put on evidence in support of his motion. A discussion of the arguments made by the parties provides a useful backdrop to the court's analysis.

The state has argued that because the defendant never directly appealed, nor moved to vacate his May, 1993 guilty plea to larceny in the third degree, he is barred from collaterally attacking the validity of the plea and conviction in the present proceeding. The proper forum for such an attack is the habeas court, the state argues, where the defendant is seeking relief.¹ It is also noted that the defendant admitted his guilt to facts underlying the charge of larceny in the third degree when canvassed by the judge in May, 1993. Only after he had been charged in connection with the present case, the state argues, did the defendant, for the first time, raise the claim that his prior plea of guilty was not knowing and voluntary. The defendant was represented by counsel in the May, 1993 proceeding, the state notes, and the conviction, entered more than nine years ago, is, therefore, strongly presumed to be valid. United States v. Medlock, 12 F.3d 185, 189 (11th Cir. 1994). The defendant argues in response that because the state seeks to use the prior felony conviction as an aggravant under our death penalty statutes, the court has an obligation to examine the constitutional validity of the plea. The defendant asserts that the prior conviction is being used in the present proceeding as a sen tencing enhancement to increase the maximum available sanction into a possible penalty of death. The defendant emphasizes that he is not seeking to with draw the plea or have it vacated. Rather, he is seeking to prevent the use of the conviction in the present proceeding. In a death penalty case, the defendant asserts, the court has a duty to examine the constitutional validity of the previous guilty plea to prevent injustice from occurring. The defendant asserts the prior plea is void because it is constitutionally defective. The state is correct when it asserts that, as a general proposition, the usual forum for an attack on a prior conviction is the habeas court. Johnson v. Commissioner of Correction, 218 Conn. 403, 412-13, 589 A.2d 1214 (1991); Guadalupe v. Commissioner of Correction, 68 Conn. App. 376, 384-87, 791 A.2d 640, cert. denied, 260 Conn. 913, 796 A.2d 557 (2002). The habeas court would, in the normal noncapital case, be the appropriate postconviction forum to determine if the May, 1993 plea was not made knowingly and voluntarily, as the defendant claims, or, if ineffective assistance of counsel should, or could, result in the vacating of the plea. State v. Crespo, 246 Conn. 665, 688, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999). Emphasizing the importance of society's interest in the finality of judgments, our Appellate Court has held that the jurisdiction of the sentencing court terminates following the imposition of sentence and that a sentence imposed within statutory limits is generally not subject to review. State v. Mollo, 63 Conn. App. 487, 490, 776 A.2d 1176, cert. denied, 257 Conn. 904, 777 A.2d 194 (2001). In that regard, Practice Book § 39-26 states that a defendant "may withdraw his or her plea of guilty or nolo contendere as a matter of right until the plea has been accepted." After acceptance, this provision provides that the defendant may withdraw a plea only upon proof of one of the grounds enumerated in Practice Book § 39-27. Practice Book § 39-26 further provides: "A defendant may not with draw his or her plea after the conclusion of the proceeding at which the sentence was imposed."

These general propositions, however, do not specifi cally address the issue here, in light of the state's desire to use the prior felony conviction to elevate the available penalty into a penalty of death.

There is no Connecticut case law directly on point, but there are noncapital decisions which are generally relevant, although the facts vary widely from those in the present case. In Wilson v. Warden, 26 Conn. Sup. 464, 227 A.2d 265 (1967), the court confronted the issue of...