State v. Thomas

• Decision Date: 04 March 2008
• Docket Number: No. 28179.,28179.
• Citation: 941 A.2d 394,106 Conn.App. 160
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Dereck THOMAS.

941 A.2d 394

106 Conn.App. 160

STATE of Connecticut v. Dereck THOMAS.

No. 28179.

Appellate Court of Connecticut.

Argued October 16, 2007.

Decided March 4, 2008.

Christine A. Janis, assistant public defender, for the appellant (defendant).

Timothy F. Costello, deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Seth R. Garbarsky, assistant state's attorney, for the appellee (state).

BISHOP, McLACHLAN and BORDEN, Js.

McLACHLAN, J.

The defendant, Dereck Thomas, appeals from the trial court's denial of his motion for specific performance of a plea agreement. On appeal, the defendant claims that the court improperly (1) refused to enforce a valid plea agreement in violation of the defendant's fifth amendment protection against double jeopardy and in violation of his federal and state constitutional due process rights, and (2) refused to enforce a valid plea agreement after having accepted the defendant's guilty plea. We dismiss this appeal for lack of jurisdiction.¹

The following factual and procedural history is relevant to our consideration of the defendant's appeal. The defendant, a forty-seven year old male, was arrested for engaging in sexual relations with a fifteen year old female. The state charged the defendant with four counts of sexual assault in the second degree in violation of General Statutes § 53a-71, and four counts of risk of injury to a child in violation of General Statutes § 53-21. On October 11, 2005, the defendant appeared in court and pleaded not guilty. Subsequently, the state and the defendant entered into plea negotiations in which the court, Rubinow, J., intervened and offered the defendant a more favorable deal. The court offered the defendant five years incarceration suspended after one year served in jail with ten years probation, instead of the state's offer of ten years suspended after five years served in jail. The case was continued, and on December 16, 2005, the defendant pleaded guilty pursuant to the plea agreement to one count of sexual assault in the second degree and one count of risk of injury to a child.² During the plea canvass, the court explained to the defendant that "the sentence [it would] likely impose [would] be five years in jail suspended after you serve one full year but that the victim's position may affect the court so that you do the minimum mandatory nine months instead of the potential maximum sentence." Additionally, the defendant requested a presentence investigation, which the court subsequently ordered. The court accepted the defendant's plea and informed the defendant that he would have to attend several continuance dates. The court set forth the continuance dates as January 27, 2006, as a docketing date and February 10, 2006, as the date to obtain the presentence investigation report.³

On February 15, 2006, the court held a hearing to address the presentence investigation and to sentence the defendant. At this hearing, the state requested that the plea be vacated on the basis of the presentence investigation report, arguing that "the defendant be allowed to withdraw his pleas based on the fact that the [presentence investigation], in the state's view, is not commensurate with the sentence of one year." In response, the court stated that "to ensure that the implications of the constitutional provisions at issue are served, this court can not, will not impose sentence until it has extended to the complainant an opportunity to be heard." Thus, the court continued the hearing to March 6, 2006, in order for the court to have ample time to gather input from the complainant. At the March 6, 2006 hearing, the court expressed a strong desire to have input from the complainant and suggested to the complainant's parents that a guardian ad litem be appointed to gather the complainant's position on the defendant's sentencing. The complainant's parents objected to the appointment of a guardian due to her fragile mental condition. The court granted the defendant's request to submit a brief on the defendant's position as to his sentencing. Thereafter, the court set an argument date of May 1, 2006.

On May 1, 2006, the defendant filed a motion for specific performance of the plea agreement, and the court, M. Taylor, J., continued the case until June 5, 2006. Once again, on June 5, 2006, the case was continued so that the court could hear from both of the complainant's biological parents prior to sentencing the defendant. On July, 7, 2006, the case was continued. On August 14, 2006, Judge Rubinow, after receiving additional information from the complainant's mother, denied the defendant's motion for specific performance to enforce the plea agreement. As a result of this new information, the court continued the case to allow for an opportunity for the complainant to provide testimony regarding the incident.

On September 11, 2006, the complainant and her father appeared in court. The complainant addressed the court and answered all of the court's questions concerning her relationship with the defendant. After hearing the complainant's testimony, the court continued the case until September 18, 2006, at which time it had intended to impose the defendant's sentence. The case was then moved to, and heard on, September 21, 2006, at which time the court declined to impose the sentence pursuant to the plea agreement and vacated the defendant's guilty plea⁴ On October 27, 2006, the defendant filed this appeal, challenging the court's denial of his motion for specific enforcement of the plea agreement.

On appeal, the defendant sets forth two main contentions. First, he claims that the court's failure to enforce the plea agreement" was a violation of his fifth amendment protection against double jeopardy and his due process rights under both the federal and state constitutions. Second, the defendant asserts that the court improperly failed to enforce a valid plea agreement that is binding on the court.

The dispositive issue is whether the defendant's claim is reviewable. The defendant argues that his interlocutory appeal is reviewable under State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983), pursuant to the prohibition against double jeopardy contained in the fifth amendment to the federal constitution, and under the due process clause of the state and federal constitutions. In opposition, the state contends that the defendant's appeal should be dismissed because there is no final judgment and that Curcio is inapplicable to this case.

"The lack of a final judgment implicates the subject matter jurisdiction of an appellate court to hear an appeal. A determination regarding . . . subject matter jurisdiction is a question of law. The jurisdiction of the appellate courts is restricted to appeals from judgments that are final. General Statutes §§ 51-197a and 52-263; Practice Book § [61-1] . . . . The policy concerns underlying the final

judgment rule are to discourage piecemeal appeals and to facilitate the speedy and orderly disposition of cases at the trial court level. . . . The appellate courts have a duty to dismiss, even on [their] own initiative, any appeal that [they lack] jurisdiction to hear." (Internal quotation marks omitted.) Mazurek v. Great American Ins. Co., 284 Conn. 16, 33, 930 A.2d 682 (2007).

"The appealable final judgment in a criminal case is ordinarily the imposition of sentence . . . In both criminal and civil cases, however, we have determined certain interlocutory orders and rulings of the Superior Court to be final' judgments for purposes of appeal. An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them." (Citation omitted; internal quotation marks omitted.) State v. Curcio, supra, 191 Conn. at 31, 463 A.2d 566.

The defendant asserts that we have jurisdiction to review his claim under Curcio because the denial of the motion for specific performance of the plea agreement violated his right to be protected against double jeopardy as well as his due process rights. Specifically, the defendant argues that he was placed in jeopardy when his guilty plea was accepted and that, therefore, the present appeal is allowed because Curcio permits the interlocutory appeal of a colorable double jeopardy claim. In opposition, the state adamantly contends that we do not have jurisdiction to review the claim. The state's contention is twofold. First, the state claims that the defendant is not entitled to interlocutory appellate review of his double jeopardy claim because he failed to move for a dismissal in pursuing his double jeopardy claim.⁵ Second, the state claims that even if this court proceeds to the merits of the claim, jurisdictional prerequisites still are not satisfied because the defendant has failed to present a colorable claim under the second prong of Curcio.⁶ We agree with the state's contentions in part.

"Curcio attempted to clarify the murky, amorphous area that lies between those appeals that are final judgments for purposes of interlocutory appellate review and those that are not by providing a rule to test the difference. Since Curcio, a number of cases have tested which side of the `gray area' the claimed right to interlocutory appellate review falls." Sharon Motor Lodge, Inc. v. Tai, 82 Conn.App. 148, 154, 842 A.2d 1140, cert. denied, 269 Conn. 908, 852 A.2d 738 (2004). "[T]here is a small class of cases that meets the test of being effectively unreviewable on appeal from a final judgment and therefore, is subject to interlocutory review. The paradigmatic case in this group involves the right against double jeopardy. . . . Because jeopardy attaches at the commencement of trial, to be vindicated at all, a colorable double jeopardy claim must be addressed by way of...