State v. Surette

• Decision Date: 12 July 2005
• Docket Number: (AC 24744).
• Citation: 90 Conn. App. 177,876 A.2d 582
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. WILLIAM J. SURETTE.

90 Conn. App. 177

876 A.2d 582

STATE OF CONNECTICUT v. WILLIAM J. SURETTE.

(AC 24744).

Appellate Court of Connecticut.

Argued April 28, 2005.

Officially released July 12, 2005.

Flynn, Bishop and Harper, Js.

Mark G. Ouellette, for the appellant (defendant).

Christine Collyer, special deputy assistant state's attorney, with whom, on the brief, were Walter D. Flanagan, state's attorney, and Kelly A. Masi, deputy assistant state's attorney, for the appellee (state).

Opinion

BISHOP, J.

This appeal requires us to determine whether a defendant may be subject to the enhanced penalties provided by General Statutes § 14-227a (g) (3) when he has three prior convictions for violations of § 14-227a but has not before been presented as a repeat offender. Because we answer the question in the affirmative, we affirm the judgment of the trial court.

The following facts and procedural history are relevant to our consideration of the issue on appeal. On July 28, 2000, the defendant, William J. Surette, was convicted of three violations of § 14-227a for having operated a motor vehicle while under the influence of intoxicating liquor. The convictions stemmed from three separate incidents occurring on April 18, July 24 and August 14, 1999, in which the defendant was apprehended by the police and charged with operating a motor vehicle while under the influence of intoxicating liquor. The three cases arising from the defendant's arrests were assigned for the same court date, and on July 28, 2000, the defendant pleaded guilty to three violations of § 14-227a. The defendant was not charged in any of the cases with being a repeat offender. In the vernacular, he was treated in three separate files as being a first time offender.

Subsequently, on May 23, 2003, the defendant was apprehended by the police and charged with operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a. In this case, the prosecutor also filed a part B information charging the defendant as a subsequent offender as a consequence of his July 28, 2000 convictions. In response, the defendant filed a motion to dismiss part B of the information on the ground that he could not be charged with being a third time offender because he had never been convicted of being a second time offender. After the court denied the defendant's motion to dismiss, the defendant pleaded guilty to the first part of the information and entered a conditional plea of nolo contendere to part B of the information, reserving his right, pursuant to General Statutes § 54-94a, to appeal from the judgment of conviction to contest the court's denial of his motion to dismiss. The court thereafter sentenced the defendant as a third and subsequent offender pursuant to § 14-227a (g) (3). This appeal followed.

On appeal, the defendant raises two issues. He claims (1) that the court did not have the legal authority to treat him as a third time offender under § 14-227a (g) (3) because he had not been convicted previously of being a second time offender under § 14-227a (g) (2), and (2) that his plea to part B of the information was constitutionally infirm because the evidence utilized by the court to support a finding of guilt was legally insufficient. We respond to each claim in turn.

Because the defendant's first claim presents a question of statutory interpretation, our review is plenary. Bengtson v. Commissioner of Motor Vehicles, 86 Conn. App. 51, 56, 859 A. 2d 967 (2004), cert. denied, 272 Conn. 922, 867 A.2d 837 (2005). "Relevant legislation and precedent guide the process of statutory interpretation. [General Statutes § 1-2z] provides that, [t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Internal quotation marks omitted.) Rodriguez v. Ancona, 88 Conn. App. 193, 197, 868 A.2d 807 (2005). Section 14-227a (g) provides in relevant part: "Any person who violates any provision of subsection (a) of this section shall . . . (3) for conviction of a third and subsequent violation within ten years after a prior conviction for the same offense, (A) be fined not less than two thousand dollars or more than eight thousand dollars, (B) be imprisoned not more than three years, one year of which may not be suspended or reduced in any manner, and sentenced to a period of probation requiring as a condition of such probation that such person perform one hundred hours of community service, as defined in section 14-227e, and (C) have such person's motor vehicle operator's license or nonresident operating privilege permanently revoked upon such third offense.. . ." That language, evincing a sentence enhancement design, is plain and unambiguous. Nowhere does the statute require, as a condition to the imposition of enhanced penalties for a third offense, that a defendant must have been convicted previously of being a second time offender. To the contrary, the statute speaks only in terms of prior convictions of § 14-227a, operating a motor vehicle while under the influence of intoxicating liquor. Because the defendant, at the time of his conviction under part B of the information, already was burdened with three convictions for violations of § 14-227a, the enhancement scheme plainly was applicable to him.

Although not set forth as a separate claim, the defendant also asserts, as part of his first issue, that because he previously had not been convicted as a second time offender, he had no notice that a subsequent conviction would subject him to a part B information charging him with being a third time and subsequent offender. We begin our analysis of this claim with the time worn maxim that "everyone is presumed to know the law, and that ignorance of the law excuses no one . . . ." (Internal quotation marks omitted.) Provident Bank v. Lewitt, 84 Conn. App. 204, 209, 852 A.2d 852, cert. denied, 271 Conn. 924, 859 A.2d 580 (2004). Those tenets "are founded upon public policy and in necessity, and the idea [behind] them is that one's acts must be considered as having been done with knowledge of the law, for otherwise its evasion would be facilitated and the courts burdened with collateral inquiries into the content of men's minds." (Internal quotation marks omitted.) Id., 209-10. Thus, the defendant is charged with knowledge of the law.

In addition, the record demonstrates that the defendant had actual knowledge of the jeopardy he would face from a subsequent conviction under § 14-227a. When the defendant entered his guilty pleas in regard to his first three convictions under § 14-227a on July 28, 2000, as a first time offender, the court warned him as follows:

"The Court: As a fourth offender, which you would have had if you had one more incident whatsoever, it would add a year in jail, mandatory year in jail, and a lifetime revocation of your driver's license. You would never be able to legally drive a car again. That would be a pretty short driving career."

In order to give the defendant an opportunity to avail himself of rehabilitation services, his sentencing hearing was deferred until October 4, 2000. At that hearing, the following colloquy took place:

"The Court: . . . I don't know what underlies it, sir. I mean, obviously, I know what underlies [it]; you've got to have a problem, obviously, to have three [convictions of operating a motor vehicle while under the influence of intoxicating liquor]. But, boy, you get arrested again for [that offense] or you get caught driving while your license is under suspension—which should be for an awful long time, if not forever in my opinion—you're going to find yourself serving a substantial amount of time in prison. Do you understand that?

"[The Defendant]: Yes."

Thus, the court's admonitions at the time of the defendant's pleas and later at his sentencing make it plain that he was on notice that a further conviction under § 14-227a would subject him to a substantially greater penalty. Accordingly, the defendant was on constructive as well as actual notice of the jeopardy he faced for a further conviction under § 14-227a.

The defendant next claims that his conditional plea of nolo contendere to part B of the information was constitutionally infirm because it was not founded on an adequate evidentiary basis. We are not persuaded.

Because that claim was not made at trial, the defendant seeks review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). As we have often noted, in order to pass muster under Golding, a defendant must meet all four of its stated conditions: "(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." Id., 239-40. The defendant's claim fails because no constitutional violation occurred.

The defendant relies on State v. Gallichio, 71 Conn. App. 179, 800 A.2d 1261 (2002). There, this court held that there was an insufficient factual basis to the defendant's plea under part B of an information charging the defendant with being a subsequent offender because the court clerk merely read into evidence certified copies of the prior convictions of a defendant with the same name. The Gallichio court stated: "The state concedes that, although identical names are evidence that each name refers to the same person, standing alone, it is not proof beyond a reasonable doubt that the defendant is the...