State v. Sutton
| Decision Date | 10 September 1985 |
| Citation | 498 A.2d 65,197 Conn. 485 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Ronald G. SUTTON. |
Jon C. Blue, Asst. Public Defender, with whom, on the brief, was Joette Katz, Public Defender, for appellant (defendant).
Julia D. Dewey, Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., and Michael Dearington, Assistant State's Atty., for appellee (state).
Before PETERS, C.J., and HEALEY, DANNEHY, SANTANIELLO and CALLAHAN, JJ.
This appeal arises from the judgment of sentence imposed in connection with the defendant's rape of a fourteen year old girl in Wallingford on May 21, 1979. On October 4, 1982, the defendant Ronald Sutton was found guilty by a jury on each count of a three count information. The first count charged the crime of sexual assault in the first degree in violation of General Statutes § 53a-70(a); 1 the second count charged the crime of kidnapping in the second degree in violation of General Statutes § 53a-94(a); 2 and the third count charged the crime of threatening in violation of General Statutes § 53a-62(a)(1). 3 On October 5, 1982, the defendant was sentenced on the first count to a term of not less than seven and a half years nor more than fifteen years, on the second count to a term of not less than seven and a half years nor more than fifteen years with the sentence on the second count to run consecutive to that on the first count and to a sentence of one year on the third count to run consecutive to the sentence on the first and second counts. The judgment stated that an effective sentence of not less than sixteen years and not more than thirty-one years was imposed.
On October 5, 1982, the defendant appealed to this court. He frames the issue on appeal in this fashion: "Did the imposition of a more severe sentence on the Defendant following his reconviction after he successfully challenged his first conviction fail to comport with the requirements of North Carolina v. Pearce, 395 U.S. 711 [89 S.Ct. 2072, 23 L.Ed.2d 656] (1969), and deprive the Defendant of liberty without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States?" The defendant is challenging not his underlying conviction of October 5, 1982, but rather the sentence imposed on account of that conviction. He argues that this sentence should be vacated and that the case should be remanded for a resentencing proceeding comporting with North Carolina v. Pearce, supra.
The factual background pertinent to our disposition is the following. On July 7, 1981, the defendant pleaded guilty under the Alford 4 doctrine to the same three charges of which he was later found guilty by a jury on October 4, 1982. At the time of the July 7, 1981 plea, the trial court, Reynolds, J., after an extensive canvass, indicated that it intended to impose an effective sentence of not less than seven and not more than twelve years in prison, and, ordering a presentence investigation, it continued the matter for sentencing to August 14, 1981. 5 On the latter date, the trial court did sentence the defendant on the first count charging sexual assault in the first degree to a term of not less than seven years nor more than twelve years, on the second count charging kidnapping in the second degree to a term of not less than seven years nor more than twelve years, and on the third count charging threatening to one year. It ordered that all the sentences were to run concurrently for an effective sentence of not less than seven years and not more than twelve years. 6
Thereafter, on November 30, 1981, the defendant filed an application for a writ of habeas corpus. 7 Sutton v. Warden, Superior Court, judicial district of Hartford-New Britain at Hartford, No. 266428. The sole ground alleged in the application for the issuance of the writ was that "[the defendant's] imprisonment is illegal in that the minimum terms of his sentence [of August 14, 1981] for sexual assault in the first degree and kidnapping in the second degree are more than one-half of the maximum terms imposed for those crimes, in violation of Conn.Gen.Stat. § 53a-35(c)(2)." 8 The prayer for relief requested that the habeas court "issue an order declaring his sentences for sexual assault in the first degree and kidnapping in the second degree null and void...." (Emphasis added.)
On March 15, 1982, a hearing was held on the defendant's application for a writ of habeas corpus at which the defendant, his defense counsel and assistant state's attorney Michael Dearington, were present. At the outset, the defendant argued that the sentence should have been not less than six years and not more than twelve years rather than the sentence imposed of not less than seven nor more than twelve years because the sentencing statutes provided that the minimum sentence imposed could not exceed one-half the maximum. Admitted as an exhibit, the affidavit of the defendant's attorney at his August 14, 1981 sentencing recited in part that the defendant "plead [sic] guilty upon the understanding, inter alia, he would receive an effective sentence of seven to twelve years to serve." (Emphasis in original.) The state argued that it felt that the habeas court, N. O'Neill, J., did not have "the authority to change sentences" and that the matter "should be either referred to Sentence Review or he should be allowed to withdraw his plea, and we start from round one again." The defendant himself responded that "[t]hat would be fine with me." The state said that it had no objection to going to the sentence review division but also said "I'm not sure what the petitioner is asking for." A colloquy ensued, 9 with the court, the defendant and both counsel participating, during which the withdrawal of the defendant's guilty plea and a new trial became focal. The court, defense counsel and the state then all expressly warned the defendant that if he chose to withdraw his guilty plea and have a new trial, the risk of incurring an increased sentence existed if a guilty verdict were returned. Although the defendant stated that he understood "that," the court said it would delay its decision until it was informed that the defendant's attorney had conferred with him and had, in writing, notified the court that the defendant wished to withdraw his guilty plea. Upon receiving a "positive statement" to that effect, the court said that then "I'll grant the motion to withdraw the guilty pleas and erase all the prior elections."
On March 22, 1982, the defendant's counsel wrote to the habeas court stating that he had spoken to the defendant, and "warned him that he would open himself to the maximum sentences for the crimes charged, and that there is a possibility of receiving a term of imprisonment substantially longer than the original sentence," but that the defendant "indicated to me his desire to go ahead with a new trial." 10 The defendant's counsel also enclosed with that letter the defendant's affidavit "to that effect," which, inter alia, acknowledged his attorney's warning. The defendant thus swore: "I fully understand the risk involved, but have nevertheless decided to withdraw my guilty plea and proceed with a new trial." 11 Shortly thereafter, on April 28, 1982, the habeas court issued its memorandum of decision, 12 finding that the defendant's "sentences of August 14, 1981 are void...." (Emphasis added.) There was no appeal from that judgment.
The defendant thereafter pleaded not guilty and elected a trial by jury. The six day jury trial took place in September and October, 1982, on the same three charges to which he had earlier pleaded guilty under the Alford doctrine. At trial a number of witnesses testified, including the victim, her mother, her father, her sister and the defendant. 13 The jury returned and the court, Mulvey, J., on October 4, 1982, accepted their verdict of guilty on each of the three counts on October 4, 1982. The court imposed an effective sentence of not less than sixteen years and not more than thirty-one years. 14 On appeal, the defendant argues that the imposition of a more severe sentence on October 5, 1982, following his reconviction after his successful attack on his first conviction does not comport with the requirements of North Carolina v. Pearce, supra, and has deprived him of his liberty without due process of law. In support of this contention the defendant argues that this case "is, for all practical purposes, indistinguishable from Simpson v. Rice," the companion case of Pearce, decided sub nom North Carolina v. Pearce, and that the facts of Simpson "are particularly important in the context of the instant case." In arguing that Pearce controls, the defendant maintains that the Pearce rule applies to defendants who have successfully attacked convictions based on guilty pleas as well as to defendants who have successfully attacked illegal sentences. He also maintains that he has not waived his due process rights. On the other hand, the state's contention, broadly stated, is that: "Once A Defendant Knowingly and Voluntarily Withdraws 15 His Plea Of Guilty And Thus Subjects Himself, His Victims, And Witnesses To Exhaustive Examination During The Subsequent Criminal Trial ... That Defendant [cannot] Then Resurrect The Voided Plea In His Effort To Avoid The Consequences Of The Lawful Sentence Which The Trial Court Based Upon Evidence Adduced At The Criminal Trial." (Footnote added.) We find error and remand.
Some discussion of Pearce and Rice, which were habeas corpus proceedings brought by state prisoners, is required for our analysis. The United States Supreme Court articulated the question presented by both of these cases as follows: "When at the behest of the defendant a criminal conviction has been set aside and a new trial ordered, to what extent does the Constitution limit the imposition of a...
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