State v. Washington

• Decision Date: 05 September 1995
• Docket Number: No. 13414,13414
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Gary WASHINGTON.

Page 1153

664 A.2d 1153

39 Conn.App. 175

STATE of Connecticut v. Gary WASHINGTON.

No. 13414.

Appellate Court of Connecticut.

Argued March 13, 1995.

Decided Sept. 5, 1995.

Paula J. Waite and William T. Gerace, Hartford, for appellant (defendant).

Pamela S. Meotti, Deputy Asst. State's Atty., with whom were James E. Thomas, State's Atty., and John A. O'Reilly, Jr., Supervisory Asst. State's Atty., for appellee (state).

Before DUPONT, C.J., and O'CONNELL and SPEAR, JJ.

SPEAR, Judge.

The defendant, Gary Washington, appeals from the judgment of the trial court revoking his probation. On appeal, he claims that the trial court improperly (1) denied his request for a public defender, (2) failed to canvass him concerning the waiver of his right to counsel, and (3) denied his request for a continuance in order to allow him to retain counsel. After oral argument, this court sua sponte raised the issue of whether the trial court violated Canon 3C(1) of the Code of Judicial Conduct ¹ or the defendant's right to due process by presiding over his revocation of probation hearing after the defendant rejected the plea bargains that the court offered from the bench. The parties filed supplemental briefs, as directed by this court, addressing whether (1) plain error or Golding ² review is available, and (2) if the issue is reviewable, whether the trial court committed plain error or violated the defendant's constitutional rights. We conclude that the trial court committed plain error ³ and, therefore, reverse the judgment.

The pertinent facts are as follows. On August 30, 1991, the defendant pleaded guilty to a narcotics related charge and was sentenced to ten years imprisonment, execution suspended, with a five year term of probation. On November 16, 1993, the defendant was arrested for possession of a controlled substance in violation of General Statutes § 21a-279(c), carrying a dangerous weapon in violation of General Statutes § 53-206(a) and certain motor vehicle violations. He was subsequently charged with violation of probation pursuant to General Statutes § 53a-32. On November 29, 1993, at a pretrial proceeding, the trial court was informed that the defendant had applied for and had been denied a public defender. ⁴ The case was continued to January 11, 1994.

After several continuances, the probation revocation hearing was held on March 4, 1994. Despite numerous warnings from the court to retain a private attorney, the defendant appeared on that date without counsel. Prior to the hearing, the trial court actively engaged in plea negotiations with the defendant from the bench. ⁵ After the defendant rejected the court's plea offers, the court immediately proceeded with the probation revocation hearing. The trial court found the defendant in violation of probation and sentenced him to a term of five years imprisonment with no probation. This appeal ensued.

The state argues that we should not review the question of the propriety of the trial court's participation in the probation revocation hearing because it is not properly before us as the defendant failed to move for the judge's disqualification pursuant to Practice Book § 997 and has not sought review under either State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or the plain error doctrine. See Practice Book § 4185. While the state is correct in asserting that this court will not normally review claims that have not been adequately preserved for appeal, we conclude that plain error review is warranted in this case.

It is well established that plain error review is exercised in only the most limited of circumstances. "Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." (Emphasis added; internal quotation marks omitted.) State v. Wright, 207 Conn. 276, 288-89, 542 A.2d 299 (1988); Lynch v. Granby Holdings, Inc., 230 Conn. 95, 98, 644 A.2d 325 (1994). As explained in detail in Lynch v. Granby Holdings, Inc., supra, at 99, 644 A.2d 325, our sua sponte invocation of plain error review is warranted when the following requirements are satisfied: (1) we discuss the rule and articulate why it is appropriate; and (2) we give the parties an opportunity to brief the issue.

We believe that plain error review is warranted because the fairness and integrity of the hearing as well as public confidence in judicial proceedings is involved. The court made certain comments in the preliminary colloquy prior to the plea offers. The court stated to the defendant's mother: "He's already on probation for sale of narcotics. So what would any reasonable person assume if he's caught with a beeper? Now he doesn't have a beeper because you need him.... He has no business. Maybe he does have a business, but if he does it's probably illegal." These comments, indicating the judge's prehearing belief that the defendant was probably engaged in illegal activities along with the implicit notion of guilt associated with the offers, cast serious doubt on the court's impartiality.

"No more elementary statement concerning the judiciary can be made than that the conduct of the trial judge must be characterized by the highest degree of impartiality. If he departs from this standard, he casts serious reflection upon the system of which he is a part. A judge is not an umpire in a forensic encounter. Strong v. Carrier, 116 Conn. 262, 263, 164 A. 501 [1933]. He is a minister of justice. Peiter v. Degenring, 136 Conn. 331, 338, 71 A.2d 87 [1949]. He may, of course, take all reasonable steps necessary for the orderly progress of the trial. State v. Schneider, 158 Wash. 504, 515, 291 P. 1093 [1930].... In whatever he does, however, the trial judge should be cautious and circumspect in his language and conduct." (Internal quotation marks omitted.) Cameron v. Cameron, 187 Conn. 163, 168-69, 444 A.2d 915 (1982).

We are aware of the demanding job and attendant pressures that confront a judge in a high volume court. Nevertheless, "[a] judge, trying the cause without a jury, should be careful to refrain from any statement or attitude which would tend to deny the defendant a fair trial. State v. Gionfriddo, 154 Conn. 90, 97, 221 A.2d 851 (1966). It is his responsibility to have the trial conducted in a manner which approaches an atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding." (Internal quotation marks omitted.) Id., at 169, 444 A.2d 915.

It is evident from our review of the transcript that the judge's preliminary comments followed by plea negotiations from the bench indicated a predisposition toward guilt. "Active involvement by trial judges in plea negotiations has frequently been criticized." State v. Fullwood, 194 Conn. 573, 580-81, 484 A.2d 435 (1984). This criticism is predicated on the dangers inherent in such activity. "In the first place, judicial participation in plea negotiations is likely to impair the trial court's impartiality. The judge who suggests or encourages a particular plea bargain may feel a personal stake in the agreement (and in the quick disposition of the case made possible by the bargain) and may therefore resent the defendant who rejects his advice.... Moreover, the defendant is likely to make incriminating concessions during the course of plea negotiations.... In the second place, judicial participation in plea discussions creates a misleading impression of the judge's role in the proceedings. As a result of his participation, the judge is no longer a judicial officer or a neutral arbiter. Rather, he becomes or seems to become an advocate for the resolution he has suggested to the defendant." (Internal quotation marks omitted.) State v. Gradzik, 193 Conn. 35, 47, 475 A.2d 269 (1984); State v. Messier, 16 Conn.App. 455, 459, 549 A.2d 270, cert. denied, 209 Conn. 829, 552 A.2d 1216 (1988).

The judge's comments after he found the defendant in violation of probation illuminate his attitude toward the defendant for rejecting the plea offers. First, contrary to the plea bargain offer to allow the defendant some time to get his affairs in order before starting to serve his sentence, the court, after finding the violation, denied a stay. The court stated that "this is now Ray Charles time, it's crying time, but it's over, okay?" Second, prior to imposing sentence, the court also stated: "[R]emember you had a chance to just get rid of everything and you did not, which was very foolish." The court then imposed a five year sentence that was ten months longer than the final plea bargain offer from the court. ⁶

The record discloses that the judge actively negotiated with the defendant to reach an acceptable plea bargain. At the beginning of the hearing, the judge expressed his opinion that the defendant should accept a plea and on two separate occasions, the judge stated that "[i]t would be very advantageous for [the defendant] to try and work something out...." When the defendant rejected the state's offer of a five year jail sentence, the judge countered with a shorter sentence of three and one-half years imprisonment. The defendant rejected that offer because, as he explained to the judge, he did not want to be on probation when he finished serving the sentence. In response to that statement, the judge offered the defendant a longer sentence of four years and two months and a termination of the probation.

This evidence shows that the judge became so involved in the plea negotiations that he no longer appeared to function as an impartial tribunal at the probation revocation hearing, but, rather, became "an advocate for the resolution he has suggested to the defendant." (Internal quotation marks omitted.) State v. Messier, supra, 16 Conn.App. at 459, 549 A.2d 270. That level of involvement in the plea negotiations rises to the level of active participation, which usually requires...