State v. Thomas, (SC 18368) (Conn. 5/25/2010), (SC 18368).

Decision Date25 May 2010
Docket Number(SC 18368).
CourtSupreme Court of Connecticut

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

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

Rogers, C. J., and Norcott, Katz, Palmer, Vertefeuille and Zarella, Js.



The issue raised by this interlocutory appeal is whether the double jeopardy clause of the fifth amendment to the United States constitution bars a trial court from vacating a previously accepted guilty plea if the court later determines, on the basis of new information uncovered during the presentence investigation, that the sentence contemplated by the plea agreement is inappropriate. The defendant, Dereck Thomas, appeals from the trial court's denial of his motion to dismiss the information.1 We affirm the decision of the trial court.

The defendant pleaded guilty pursuant to a plea agreement, which the trial court initially accepted and later decided to vacate. The defendant claims, for the purpose of double jeopardy protection, that jeopardy attached at the moment the trial court accepted his guilty plea and, therefore, the trial court's subsequent decision to vacate his guilty plea and schedule his case for trial violates the prohibition against double jeopardy. For the reasons that follow, we disagree with the defendant's claim.

The record reveals the following relevant facts and procedural history. The defendant, a forty-seven year old male, engaged in both oral and vaginal sexual intercourse with the fifteen year old victim on four separate occasions in the spring of 2005. The state charged the defendant with four counts of sexual assault in the second degree in violation of General Statutes § 53a-71,2 and four counts of risk of injury to a child in violation of General Statutes § 53-21 (a).3 Thereafter, the state and the defendant entered into plea negotiations in which the court, Rubinow, J., participated. Instead of the state's offer of ten years imprisonment, suspended after five years served, the court indicated that it would accept five years imprisonment, suspended after one year served, and ten years of probation. Pursuant to the court's recommendation, the defendant pleaded guilty to one count of sexual assault in the second degree and one count of risk of injury to a child, and the state agreed to nolle the remaining six felony charges at the time of sentencing. 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 in jail, 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." (Emphasis added.) The court further emphasized that "any credit against that one year would be based upon whether or not the victim was willing to make an appropriate statement to the court, as there have been great inconsistencies between the state's understanding of the victim's position and the position that was identified by the public defender." The court subsequently accepted the defendant's guilty plea, ordered a presentence investigation at the behest of the defendant and continued the matter for sentencing.

The presentence investigation revealed new and important information that had not been available to the court at the time of the plea negotiations.4 Specifically, the presentence investigation report disclosed that the defendant had provided the victim with alcohol prior to engaging in sexual relations with her, that the victim had attempted suicide and had engaged in selfmutilation in the months following the sexual assaults and that the victim thought the defendant should go to jail for 100 years. Consequently, on the basis of the presentence investigation report, the state requested that the plea be vacated, arguing that "the defendant [should] be allowed to withdraw his pleas based on the fact that the [culpability revealed by the presentence investigation], in the state's view, is not commensurate with the sentence of one year." After reviewing the presentence investigation report, the court decided to convene a hearing to provide the victim an opportunity to testify regarding the incidents in question, and it deferred ruling on the state's motion to vacate the defendant's plea. In order to satisfy the mandate of article first, § 8, of the constitution of Connecticut, as amended by articles seventeen and nineteen of the amendments, which is commonly known as the victims' rights amendment, the court stated that it would not "impose sentence until it has extended to the [victim] an opportunity to be heard." The defendant responded to the trial court's reluctance to sentence him in accordance with his initial plea bargain by filing a motion for specific performance of his plea agreement, which the court denied.5

The victim eventually appeared in court, answered all of the trial court's questions concerning her relationship with the defendant and provided the court with a better understanding of her position. The victim informed the court that the defendant had provided her with alcohol and performed sexual acts upon her while she was intoxicated, that in the wake of the defendant's crimes her acts of self-mutilation had intensified, that she eventually spent one year as a residential patient at a hospital and that the letters she wrote to the defendant, which the trial court had considered during the plea negotiations, did not represent the full extent of her "mixed emotions about the whole situation." The victim also expressed her belief that the defendant should be sentenced to ten years incarceration instead of the one year contemplated by the plea agreement. In light of the new information presented through the presentence investigation report and the victim's testimony, the court ultimately declined to impose the sentence contemplated in the plea agreement, vacated the defendant's guilty plea, noted pro forma pleas of not guilty on his behalf, and placed the matter on the trial list.

Thereafter, the defendant filed a motion to dismiss the information, arguing that reinstatement of the original criminal charges would violate the constitutional guarantee against double jeopardy. He also claimed that, once the court accepted the guilty plea, it was bound to enforce the plea agreement.6 The court denied the motion, reasoning that the court is not bound to impose a sentence that was conditionally agreed upon prior to the preparation of a presentence investigation report and that, for double jeopardy purposes, a judgment is not rendered until a sentence is actually imposed. This appeal followed.

On appeal, the defendant repeats his claim that reinstatement of the original criminal charges would violate the constitutional guarantee against double jeopardy. The state counters that the trial court properly denied the defendant's motion to dismiss because jeopardy does not attach upon the mere acceptance of a guilty plea that the trial court, in its discretion, later vacates before imposing sentence. We agree with the state and affirm the trial court's denial of the defendant's motion to dismiss.

As an initial matter, we note and the state concedes that the defendant's double jeopardy claim, though raised interlocutorily, is reviewable pursuant to State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). "It is axiomatic that appellate jurisdiction is limited to final judgments of the trial court. . . . [T]here is a small class of cases [however] 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 interlocutory review. The right not to be tried necessarily falls into the category of rights that can be enjoyed only if vindicated prior to trial, and, consequently, [is reviewable in an interlocutory appeal] . . . ." (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Crawford, 257 Conn. 769, 774-75, 778 A.2d 947 (2001), cert. denied, 534 U.S. 1138, 122 S. Ct. 1086, 151 L. Ed. 2d 985 (2002). The defendant's claim that the trial court violated the constitutional prohibition against double jeopardy by vacating his guilty plea and scheduling his matter for trial constitutes a colorable double jeopardy claim. Accordingly, it falls squarely within the small class of claims reviewable in an interlocutory appeal.

We now turn to the merits of the defendant's double jeopardy claim. In denying the defendant's motion to dismiss, the trial court reasoned that the defendant could not raise a double jeopardy claim until a judgment had been rendered or a sentence had been imposed and stressed that a defendant has no right to enforce a proposed sentence that was agreed to prior to the preparation of a presentence investigation report. Although our reasoning differs slightly from that of the trial court, we agree that, under the circumstances of this case, the decision to vacate the defendant's plea did not violate the guarantee against double jeopardy.

At the outset, we set forth the standard of review. A criminal defendant may raise the defense that a "[p]revious prosecution bar[s] the present prosecution" in a motion to dismiss. Practice Book § 41-8 (6). "Because a motion to dismiss effectively challenges the jurisdiction of the court, asserting that the state, as a matter of law and fact, cannot...

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