author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. AKOV ORTIZ
    (AC 22770)
    Schaller, Flynn and Peters, Js.

      Argued June 3
    officially released September 23, 2003

      Moira L. Buckley, assistant public defender, for the appellant (defendant).

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, was Timothy J. Liston, state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Akov Ortiz, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1), assault of a peace officer in violation of General Statutes § 53a-167c (a) (1), two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (5) and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). On appeal, the defendant claims that the court improperly instructed the juiy (1) by including in its self-defense instructions an explanation as to the “duty to retreat” principle, (2) by including in its self-defense instructions an explanation as to the “initial aggressor” principle and (3) by failing to instruct fully on the charge of assault of a peace officer. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the disposition of the defendant’s appeal. On the evening of August 10, 1999, the defendant was at the home of his friend, Joseph Roy, in Middletown, from 6 p.m. until approximately 12:45 a.m. on August 11, 1999. During the evening, the defendant contacted his former girlfriend, Kristen Quinn. Quinn then notified the police that the defendant had contacted her and that they planned to meet at the Wesley School at approximately 12:45 a.m.

Because the police had a warrant for the defendant’s arrest, they planned to arrest the defendant when he attempted to meet Quinn at the Wesley School. Two detectives with the Middletown police department, Stephen Augeri and Jorge Yepes, initially were sent to the school at approximately 10:45 p.m. so that they could observe the area in preparation for the arrest. The detectives returned to the police station and briefed other officers on the area and their plan for the arrest. The plan consisted of using nine officers to apprehend the defendant by dispersing the officers at various points around the school, including a nearby footbridge, the roof of the school and the playground area. To take the defendant into custody, the officers planned to surprise him as he crossed the footbridge. Four officers, William Warner, Jeffrey Mefferd, Augeri and Yepes, were assigned to the footbridge location. Augeri and Warner were assigned to hide in the reeds at the right and left side of the bridge where the defendant was expected to cross into a field. The other officers were dispersed at various points around the school grounds to prevent the defendant’s escape.

The officers were dressed in plain clothing, which consisted of dark blue raid jackets with yellow lettering. They arrived at the Wesley School at approximately midnight on August 11, 1999. After parking their vehicles at a nearby restaurant, they walked to their assigned locations around the school. Augeri and Warner waited at the footbridge, as assigned, and practiced the plan to surprise the defendant by taking hold of both of his arms.

The defendant left Roy’s home at approximately 12:45 a.m. As the defendant proceeded along a path toward the footbridge, one of the officers saw that the defendant was carrying a handgun. As the defendant approached the footbridge, he briefly hesitated before proceeding slowly across. Augeri and Warner announced themselves to the defendant as police officers and attempted to take hold of him. The defendant, however, managed to slip from their grasp. In the moments following, approximately five to seven gunshots were fired. The other officers in the area rushed to the scene and discovered that Warner had been shot in both arms and one leg, and that Augeri had suffered one gunshot wound to the right arm. The defendant also suffered one gunshot wound. Warner, Augeri and the defendant were then taken to a hospital and treated for their injuries.

The state filed a nine count amended information relating to the shootings of Augeri and Warner. The trial commenced on October 3,2001. Although the defendant did not dispute that he had shot the officers, his claim at trial was self-defense. Specifically, his defense was that his actions were justified because he did not know at the time of the shootings that the individuals involved were police officers, he reasonably believed that they were about to use deadly force on him and deadly force was necessary to repel the attack. The evidence presented at the trial centered on visibility due to weather conditions, clothing worn by the officers, the plan to surprise the defendant and to take him into custody, and whether the police had announced themselves to the defendant as police officers.

The jury found the defendant guilty of one count of assault in the first degree in violation of § 53a-59 (a) (1), one count of assault of a peace officer in violation of § 53a-167c (a) (1), one count of carrying a pistol without a permit in violation of § 29-35 (a), and two counts of assault in the first degree in violation of § 53a-59 (a) (5). The court imposed a total effective sentence of thirty-six years incarceration. This appeal followed. Additional relevant facts will be provided as necessary.

Although the defendant’s request to charge the jury included references to the “duty to retreat” and “initial aggressor” principles, the defendant claims that the court improperly instructed on those principles. The defendant concedes that he failed to preserve those claims by objecting to the court’s instructions and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The defendant’s third claim on appeal is unpreserved because the defendant failed to file a written request to charge and failed to except explicitly to the court’s charge. See State v. Davis, 261 Conn. 553, 562, 804 A.2d 781 (2002). We will review each of the defendant’s claims separately pursuant to Golding.

We proceed to review the defendant’s claims pursuant to Golding because the record is adequate for review, and “the right to establish a defense is constitutional in nature.” State v. Crus, 75 Conn. App. 500, 507, 816 A.2d 683, cert. granted on other grounds, 263 Conn. 921, 822 A.2d 243 (2003); see also State v. Whipper, 258 Conn. 229, 295 n.31, 780 A.2d 53 (2001). Furthermore, the claims are reviewable under Golding because the defendant asserts that there was no evidence presented during trial to support the court’s instructions. See State v. Ciccio, 77 Conn. App. 368, 375, 823 A.2d 1233 (2003). “Our analysis of this claim is guided by the principle that [t]he court . . . has a duty not to submit to the jury, in its charge, any issue upon which the evidence would not reasonably support a finding.” (Internal quotation marks omitted.) State v. Whitford, 260 Conn. 610, 625, 799 A.2d 1034 (2002).

“Where . . . the challenged jury instructions involve a constitutional right, the applicable standard of review is whether there is a reasonable possibility that the jury was misled in reaching its verdict. ... In evaluating the particular charges at issue, we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is . . . whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we Mill not view [them] as improper.” (Citation omitted; internal quotation marks omitted.) Id., 619-20.

I

The defendant first claims that the court improperly instructed the jury on the duty to retreat exception to the defense of self-defense. Specifically, the defendant asserts that the state presented no evidence from which the jury could find that he had a duty to retreat and no evidence that he in fact could have retreated. The defendant argues that the court’s instructions misled the jury and deprived him of a fair trial because the instructions gave the jury an additional option with which it could reject his claim of self-defense. In support of his argument, the defendant relies on State v. Whitford, supra, 260 Conn. 610, State v. Lemoine, 256 Conn. 193, 770 A.2d 491 (2001), and State v. Bellino, 31 Conn. App. 385, 625 A.2d 1381 (1993), appeal dismissed, 228 Conn. 851, 635 A.2d 812 (1994).

The state, relying on State v. Chapman, 229 Conn. 529, 643 A.2d 1213 (1994) (en banc), argues that the court’s instruction is not of constitutional magnitude and, therefore, that the defendant fails to satisfy the second prong of Golding. We review the defendant’s claim pursuant to Golding because “the right to establish a defense is constitutional in nature.” State v. Cruz, supra, 75 Conn. App. 507; see also State v. Whipper, supra, 258 Conn. 295 n.31.

We first point out that the defendant’s reliance on Lemoine and Bellino is misplaced because those cases are factually inapposite. In those cases, the court failed to charge the jury on the duty to retreat because the court determined that the issue was not relevant. On appeal in those cases, the court’s failure to charge the jury was determined to be proper. Conversely, in the present case, the court charged the jury on the duty to retreat, and the relevant inquiry is whether the court’s charge misled the jury such that the defendant was deprived of a fair trial. Furthermore, Whitford fails to support the defendant’s claim because we conclude that the evidence supported an instruction on the duty to retreat and, consequently, there is no reasonable possibility that the jury was misled in reaching its verdict.

In its charge to the juiy, the court first instructed on the claim of self-defense and the reasonableness of the defendant’s belief. The court then gave the following instruction, on which the defendant rests his appellate challenge: “Now, I will explain the second circumstance under which a person is not justified in using deadly physical force. Under the second circumstance, a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety by retreating. That means both that the retreat was completely safe and available and that the defendant knew it. ‘Complete safety’ means without any injury whatsoever to him. As I have said, self-defense requires you to focus on the person claiming self-defense, on what he reasonably believes under the circumstances, and it presents a question of fact as to whether a retreat with complete safety was available and whether the defendant knew it. The law stresses that self-defense cannot be retaliatory. It must be defensive and not punitive. So, you must ask yourself, did the defendant know that he could avoid the use of deadly physical force by retreating with complete safety? If so, and yet he chose to pursue to use deadly physical force, you shall reject the self-defense claim. If you find proven beyond a reasonable doubt that a retreat with complete safety was available and the defendant knew it, you shall then find that the state has proven beyond a reasonable doubt that the defendant was not justified in using deadly physical force. Once again, the defendant does not have to prove that he acted in self-defense; rather, it’s the state’s burden to disprove that defense beyond a reasonable doubt.”

On the basis of our review of the instructions as a whole, we cannot conclude that they were improper. The court instructed the jury on the state’s burden to prove beyond a reasonable doubt all of the elements of the crimes charged. Furthermore, the court charged the juiy that once the defendant raised the issue of self-defense, it was the state’s burden to disprove the defense beyond a reasonable doubt.

The evidence supported the court’s instruction to the juiy. The jury heard testimony from Augeri and Warner regarding the events at issue. Augeri testified that he attempted to flee the scene when the defendant continued to fire his weapon and that Augeri feared for his life. In addition, Warner testified that he tried to run from the defendant, but that the defendant continued to fire his weapon, shooting Warner in the right leg. Warner testified that he then fired back at the defendant. Other officers testified that Augeri and Warner were approximately twenty feet away from each other, and that the defendant was about ten to fifteen feet away from Warner. On the basis of the testimony of Warner and Augeri, the jury reasonably could have concluded that the defendant had the ability to retreat with complete safety rather than continue to fire his weapon at the officers. The fact that the two officers were themselves attempting to flee from the defendant supports such a version of the evidence. The evidence, therefore, supported the juiy instruction on the duty to retreat, and the instruction given was adapted to the issues and was sufficient to guide the jury. See State v. Scarpiello, 40 Conn. App. 189, 212, 670 A.2d 856, cert. denied, 236 Conn. 921, 674 A.2d 1327 (1996). Consequently, we conclude that there was no reasonable possibility that the jury was misled by the court’s instruction on the duty to retreat and that the defendant has failed to satisfy the third prong of Golding.

II

Next, the defendant claims that the court improperly instructed the jury by including in its self-defense instructions an explanation as to the “initial aggressor” principle. The defendant relies on State v. Beltran, 246 Conn. 268, 276-77, 717 A.2d 168 (1998), to support his proposition that the charge to the jury was improper because it was unsupported by the evidence and that the initial aggressor principle was not an issue in the case. The defendant argues that this misled the jury because it provided another option for the jury to reject his claim of self-defense. We disagree.

We first point out that the defendant’s reliance on Beltran is misplaced. Beltran concerned the omission of an instruction. Id. In Beltran, the Supreme Court concluded that “the trial court’s failure to instruct the jury on the initial aggressor doctrine was not improper.” (Emphasis added.) Id., 276. Beltran is inapposite.

The defendant primarily rests his appellate challenge on the following isolated portion of the court’s instruction concerning the initial aggressor principle: “Under the third circumstance, a person is not justified in using deadly physical force if he is the initial aggressor and does not withdraw from the encounter. The ‘initial aggressor’ is the person who first acts in such a manner that creates a reasonable belief in another person’s mind that physical force is about to be used upon that other person. The first person to use physical force is not necessarily the initial aggressor. Before an initial aggressor can use any physical force, the initial aggressor must withdraw or abandon in such a way that the fact of withdrawal is perceived by his opponent so that the opponent is aware that there’s no longer any danger from the original aggression. If you find that the state has proven beyond a reasonable doubt that the defendant was the initial aggressor and that the defendant did not effectively withdraw from the encounter or abandon it in such a way that the other person knew he was no longer in any danger from the defendant, you shall then find that the defendant was not justified in using deadly physical force.” The defendant also takes issue with the court’s subsequent reference to the initial aggressor principle and the circumstances in which the defense would no longer be available.

We note that the defendant does not claim that the instruction was incorrect as a matter of law, nor does he claim that the effect on the jury was to foreclose it from considering his claim of self-defense altogether. See State v. Jimenez, 228 Conn. 335, 341, 636 A.2d 782 (1994). The court’s instruction left the jury free to weigh the evidence adduced at trial and to determine whether the defendant had presented a viable defense; see State v. Whitford, supra, 260 Conn. 624; and the state failed to satisfy its burden of proving beyond a reasonable doubt that he was not entitled to the defense. Id., 619. On the basis of our review of the instructions as a whole, we cannot conclude that there was a reasonable possibility that the jury was misled by the court’s instructions.

The charge was sufficiently adapted to the issues in the case because the evidence supported the instruction as given by the court. Although there was testimony that the police officers were engaged in a surprise plan to take the defendant into custody, there also was testimony that they had announced themselves to the defendant, wore police raid jackets and had identification cards around their necks. The evidence supports a jury finding that the defendant, knowing that the police were attempting to take him into custody, was trying to avoid capture and was the initial aggressor. Under those circumstances, the jury could reject the claim of self-defense. On the basis of our review of the entire record and the jury charge, we conclude that there was evidence presented to support the court’s instruction. The defendant therefore has failed to satisfy the third prong of Golding because the corut’s instruction was correct in law and adapted to the issues, and it sufficiently guided the jury.

Ill

Finally, the defendant claims that the court improperly instructed the jury by failing to instruct fully on the charge of assault of a peace officer. Specifically, the defendant argues that because the court failed to limit the effect of General Statutes § 53a-23, failed to explain the elements of assault of a peace officer and failed to explain the relationship between § 53a-23 and § 53a-167c, the state was relieved of its burden of proving every element of the crime charged beyond a reasonable doubt, thereby violating his due process rights. The defendant also argues that after the court instructed on § 53a-23, it failed to remind the jurors that they had to determine whether the officers were identifiable to the defendant, whether the officers were acting within the scope of their duties and whether the defendant had the requisite intent to prevent them from performing their duties.

The state argues that the court’s instructions were not improper because the court specifically instructed the jurors that to find the defendant guilty of having violated § 53a-167c, they needed to find that he had the specific intent to prevent the officer from performing his lawful duties. The state further argues that no evidence was presented at trial that the officers were acting unlawfully or that they were present at the school that night for any purpose other than to arrest the defendant. Furthermore, the state argues that § 53a-23 was intended to be a limitation on the possible defenses to criminal liability, rather than, as the defendant suggests, a limitation on the defendant’s criminal liability.

The following facts are relevant to the defendant’s claim. The defendant was charged with two counts of assault of a peace officer in violation of § 53a-167c (a) (l). One of those counts related to the assault of Warner, and the other count related to the assault of Augeri.

The court instructed the jury in relevant part as follows: “Now, for you to find the defendant guilty of [assault of a peace officer], the state must prove the following elements beyond a reasonable doubt: One, that the victim of the assault was a reasonably identifiable peace officer; two, that the conduct of the defendant occurred while the peace officer was acting in the performance of his duties; three, that the defendant had the specific intent to prevent the peace officer from performing his lawful duties; and, four, that the defendant caused physical injury to the peace officer. . . . The phrase ‘in the performance of his official duties’ means that the police officer is acting within the scope of what he’s employed to do as opposed to engaging in a personal frolic of his own. The officer must be acting under a good faith belief that he’s carrying out his duty and his actions are reasonably designed to that end. ... If the state has proven these elements beyond a reasonable doubt, then your verdict would be guilty. If they have not proven all of these elements beyond a reasonable doubt, your verdict would be not guilty. There are no lesser included offenses to these two counts. I also want to instruct you on a statute, it’s § 53a-23, not that the section means anything. But it reads as follows: ‘A person is not justified in using physical force to resist an arrest by a reasonably identifiable peace officer, whether such arrest is legal or illegal.’ The purpose of the statute is to enforce orderly behavior in the important mission of preserving the peace and to require nonviolent compliance with a police officer’s decision, right or wrong, to arrest, thus avoiding the dangers of violence to the police and to the arrested person.”

In analyzing the defendant’s claim, we must look to § 53a-23, which provides: “A person is not justified in using physical force to resist an arrest by a reasonably identifiable peace officer, whether such arrest is legal or illegal.” Although that section is an “abrogation of the common-law privilege to resist arrest [it] is limited, however, to illegal arrests, per se, and has not been applied to other illegal police conduct.” (Emphasis in original.) State v. Davis, supra, 261 Conn. 567. “[U]nder § 53a-23, the illegality of an arrest is not a defense to charges under ... § 53a-167c.” Id. “Thus, § 53a-23 was intended to require an arrestee to submit to an arrest, even though he believes, and may ultimately establish, that the arrest was without probable cause or was otherwise unlawful. It was not intended to require an arrestee to submit to egregiously unlawful conduct — such as an unprovoked assault — by the police in the course of an arrest, whether the arrest was legal or illegal.” (Emphasis in original.) Id., 568.

In evaluating the court’s charge to the jury in its entirety, we conclude that the instructions were proper and were sufficient to guide the jury in reaching its verdict. The defendant was charged with assault of a peace officer in violation of § 53a-167c. The court instructed the jury on each of the elements of the charge of assault of a peace officer. The court instructed the jury that the state had to prove each of the elements beyond a reasonable doubt and that to convict the defendant, it needed to find that he had the specific intent to prevent the officer from performing his lawful duties. The court also instructed the jury on the meaning of the phrase, “in the performance of his official duties.” We presume that the jury followed the court’s instructions. See State v. Jimenez, 74 Conn. App. 195, 214, 810 A.2d 848 (2002), cert. denied, 262 Conn. 947, 815 A.2d 677 (2003).

In addition, there was no evidence that the conduct of the police officers was excessive or unlawful, and it was undisputed that they were at the school to execute a lawful arrest warrant. See, e.g., State v. Davis, supra, 261 Conn. 569-72 (jury not adequately instructed on meaning of phrase “performance of their duties” or that use of unwarranted or excessive force is not within performance of duties). Furthermore, the defendant’s theory of defense centered on the claim that he was justified in his actions because he did not know that the men were police officers, he reasonably believed that they were about to use deadly force on him and reasonably believed that deadly force was necessary to repel the attack. The court properly instructed the jury on that defense and that it was the state’s burden to disprove the defense. We conclude that the jury was not misled by the court’s instruction and that the defendant has failed to satisfy the third prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant requested the following jury charge in relevant part: “You must find the defendant not guilty on the grounds of justification unless you find that the state has proven to you, beyond a reasonable doubt, any one of the following elements: First, that the defendant did not believe that he was in imminent danger of injury to [himself or another] and that the use of force was not necessary to protect [himself or another]; or, that the defendant did not have reasonable grounds for that kind of a belief; or, that the force he used was unreasonable; or, that he was the initial aggressor and did not attempt to withdraw. If the state has proven any one or more of those elements beyond a reasonable doubt, then the defendant was not justified. Otherwise, he was justified. . . . The law does not encourage the use of deadly force and, in most circumstances, a person must retreat from a perceived harm if he is capable of doing so with complete safety. . . . A person is not justified in using physical force when, with the intent to cause physical injury to another person, he provokes the use of physical force by that person. However, if the defendant was the initial aggressor, his use of physical force upon another is justifiable under such circumstances if he withdraws from the encounter and effectively communicates to the other person his intent to withdraw . . . .” (Emphasis added.)

       The court’s full instructions to the jury on self-defense were as follows: “Bearing in mind the instructions I’ve given to you regarding justification, the state has the burden to prove beyond a reasonable doubt under the first circumstance: One, the defendant did not, in fact, believe that he was in imminent danger of death or great bodily harm; or, two, the defendant did not have a reasonable basis for his belief; or, three, the defendant did not, in fact, believe that he needed to use deadly physical force to repel the other person’s attack; or, four, the defendant did not have a reasonable basis for his belief that he needed to use deadly physical force to repel the other person’s alleged attack.
      “Or, under the second circumstance, a retreat with complete safety was available to the defendant, and the defendant knew a retreat with complete safety was available to him.
      “Or, under the third circumstance, the defendant was the initial aggressor, and the defendant did not effectively withdraw from the encounter or effectively abandon it.”
      The defendant specifically takes issue with the charges given by the court regarding the second and third circumstances.

       In its brief, the state argues that Golding is not applicable to the defendant’s first and second claims because Golding should not be allowed to apply to claims of induced error. See State v. Cruz, 75 Conn. App. 500, 506 n.8, 816 A.2d 683, cert. granted on other grounds, 263 Conn. 921, 822 A.2d 243 (2003). We conclude that this claim is without merit.

       “In Golding, this court held that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (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. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original; internal quotation marks omitted.) State v. Coltherst, 263 Conn. 478, 489-90, 820 A.2d 1024 (2003). “The appellate tribunal is free . . . to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” State v. Golding, supra, 213 Conn. 240.

       The court’s charge to the jury on self-defense was in relevant part as follows: “Now, I want to instruct you on self-defense. Justification is the legal term for self-defense. . . . Self-defense is a means by which the law justifies the use of force that would otherwise be illegal. Once self-defense is raised, the state must disprove the defense beyond a reasonable doubt. And one of the claims here is that the defendant acted in self-defense. In claiming that he acted in self-defense, the defendant is claiming that his use of deadly physical force was justified. . . . Although the defendant raised a defense of justification, the state has the burden to prove beyond a reasonable doubt that the defendant was not justified in using deadly physical force. . . . There are three circumstances relevant to this case under which a person is not justified in using deadly physical force. . . . Under the first circumstance, a person is not justified in using deadly physical force when, at the time he uses deadly physical force . . . he does not reasonably believe that the other person or persons are about to use deadly physical force against him or about to inflict great bodily harm to him. ... In deciding whether the state has proven beyond a reasonable doubt that the defendant was not justified in using deadly physical force, you’ll first focus on the defendant. You first focus on what he, in fact, believed at the time he used deadly physical force. Then you will focus on whether the defendant’s belief was reasonable under all the circumstances that existed when he used deadly physical force.”

       See footnote 2. “Bearing in mind the instructions I’ve given to you regarding justification, the state has the burden to prove beyond a reasonable doubt . . . [that] the defendant was the initial aggressor, and the defendant did not effectively withdraw from the encounter or effectively abandon it.”

       General Statutes § 53a-167c (a) provides in relevant part: “A person is guilty of assault . . . when, with intent to prevent a reasonably identifiable peace officer . . . and while such peace officer ... is acting in the performance of his or her duties, (1) such person causes physical injury to such peace officer . . . .”


source: Caselaw Access Project

author: DiPENTIMA, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. LOUIS D'ANTONIO
    (AC 23081)
    Foti, Dranginis and DiPentima, Js.

      Argued June 10
    officially released September 30, 2003

      Adele V. Patterson, assistant public defender, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were Timothy J. Liston, state’s attorney, and Barbara Hoffman, senior assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, J.

The defendant, Louis D’Antonio, appeals from the judgments of the trial court revoking his probation pursuant to General Statutes § 53a-32 and sentencing him to serve six months of a previously suspended sentence on the underlying conviction for the motor vehicle offenses. The dispositive issue on appeal is whether the court committed plain error when it presided over the revocation of probation hearing after having participated actively in pretrial plea negotiations. We reverse the judgments of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. On October 24, 2000, the defendant, through his public defender, pleaded nolo contendere to two separate charges of operating under the influence on two separate occasions in violation of General Statutes § 14-227a and was sentenced by the court to a total effective term of thirty months of imprisonment, execution suspended after twenty-four months, and one year of probation with special conditions. The special conditions of the defendant’s probation were the same with respect to both violations and included, inter alia, substance abuse screening, evaluation and treatment as recommended by the probation officer, a total of 200 hours of community service and no operation of a motor vehicle while the defendant’s operator’s license was under suspension.

On or about October 4, 2001, the defendant was released from prison and began serving his probation. After the defendant refused to participate in an alcohol treatment program, his probation officer applied for arrest warrants for violation of probation on December 10, 2001. On December 11, 2001, the defendant was arraigned on two criminal matters, criminal trespass in the first degree and interfering with an officer, respectively, and the court appointed a public defender as his counsel. On December 18, 2001, the defendant was arraigned on the violation of probation matters and denials were entered. At that time, the court appointed the public defender who was handling the defendant’s criminal matters to represent him in the violation of probation matters. Thereafter, the court held several scheduled proceedings, often involving both the criminal and the violation of probation matters.

On January 15, 2002, the defendant appeared in court with his counsel and indicated that he wanted to represent himself. The court told the defendant that before allowing him to represent himself, it was going to order a competency examination. On February 27,2002, when the defendant appeared in court with his counsel, the court, Fischer, J., made an uncontested finding of competency based on the competency report in the file. Again, the defendant raised the issue of self-representation. The court, Fischer, J., allowed the defendant’s counsel to withdraw from the violation of probation and criminal cases, and, on the same date, the defendant filed a pro se appearance in those cases. On March 20, 2002, the court, Clifford, J., the prosecutor and the defendant engaged in an on the record plea discussion. The defendant refused any offered plea bargain and insisted on exercising his “right for a trial.”

On April 3,2002, the defendant again appeared before Judge Clifford for the violation of probation hearing. Although Judge Clifford recalled having some discussion with the defendant previously in the case, he proceeded to canvass the defendant on the issue of self-representation and advised the defendant of, inter alia, the state’s burden of proof in the case and the defendant’s various constitutional rights. The defendant indicated that he was “prepared to continue” and to “go forward,” and there was no mention by anyone of Judge Clifford’s recusal. Thereafter, the hearing commenced and concluded, and Judge Clifford found that the defendant did violate a condition of his probation and that the beneficial aspects of probation were no longer being served. Judge Clifford sentenced the defendant to the remaining six months of imprisonment previously suspended on the sentence for the underlying motor vehicle offenses. This appeal followed.

The defendant claims that his violation of probation hearing was unlawfully conducted by the same judge who conducted plea bargaining on that charge in violation of canon 3 (c) (1) of the Code of Judicial Conduct. The defendant argues that this deprived him of his constitutional right to a fair trial pursuant to the fifth and fourteenth amendments to the United States constitution, and article first, § 8, of the constitution of Connecticut. The defendant contends that the trial judge had a responsibility to recuse himself and, thus, although the defendant did not file a motion to recuse the judge, the error is reviewable under either State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or the plain error doctrine pursuant to Practice Book § 60-5.

The state argues that we should not review the question of the propriety of the judge’s participation in the probation revocation hearing because it is not properly before us, as the defendant failed to file a motion for the judge’s disqualification pursuant to Practice Book § 1-23. The state maintains that neither plain error review nor review under Golding is appropriate. The state contends, moreover, that by failing to raise the issue of Judge Clifford’s disqualification at the hearing, the defendant consented to the judge’s participation under General Statutes § 51-39 (c). Although the state is correct in asserting that this court will not normally review claims that have not been preserved for appeal adequately, 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 in original; internal quotation marks omitted.) State v. Falcon, 68 Conn. App. 884, 887, 793 A.2d 274, cert. denied, 260 Conn. 924, 797 A.2d 521 (2002). We conclude that plain error review is warranted “because the fairness and integrity of the hearing as well as public confidence in judicial proceedings is involved.” State v. Washington, 39 Conn. App. 175, 179, 664 A.2d 1153 (1995); see State v. Falcon, supra, 887 (plain error review warranted because impropriety of court presiding over trial and sentencing after having actively participated in pretrial plea negotiations “is so obvious that it affects the fairness and integrity of the public confidence in the judicial proceedings”).

“Our Supreme Court has stated that a trial court’s failure to follow the mandatory provisions of a statute prescribing trial procedures or to follow a procedural rule constitutes plain error. . . . Canon 3 [c] (1) of the Code of Judicial Conduct requires a judge to disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned. The reasonableness standard is an objective one. Thus, the question is not only whether the particular judge is, in fact, impartial but whether a reasonable person would question the judge’s impartiality on the basis of all the circumstances. . . . Even in the absence of actual bias, a judge must disqualify himself in any proceeding in which his impartiality might reasonably be questioned, because the appearance and the existence of impartiality are both essential elements of a fair exercise of judicial authority.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Falcon, supra, 68 Conn. App. 887-88.

Although pretrial or plea negotiations play a critical role in the criminal justice system, and the disposition of charges after plea discussions is highly desirable, judicial participation in pretrial plea negotiations frequently has been criticized. See State v. Revelo, 256 Conn. 494, 505-506, 775 A.2d 260, cert. denied, 534 U.S. 1052, 122 S. Ct. 639, 151 L. Ed. 2d 558 (2001); State v. Falcon, supra, 68 Conn. App. 888; State v. Washington, supra, 39 Conn. App. 180-81. In fact, “many jurisdictions bar judges from active participation in plea negotiations.” State v. Revelo, supra, 506 & n.22, citing Fed. R. Crim. P. 11 (e) (1), Colo. Rev. Stat. § 16-7-302 (1) (2000), Wash. Rev. Code Ann. § 9.94A.080 (West 1998).

In Connecticut, however, “[i]t is a common practice . . . for the presiding criminal judge to conduct plea negotiations with the parties. If plea discussions ultimately do not result in a plea agreement, the trial of the case is assigned to a second judge who was not involved in the plea discussions and who is unaware of the terms of any plea bargain offered to the defendant. The judge responsible for trying the case also is responsible for sentencing the defendant in the event the defendant is convicted after trial.” State v. Revelo, supra, 256 Conn. 508 n.25. “[A]s long as the defendant is free to reject the plea offer [made after negotiations conducted by one judge] and go to trial before a [second] judge who was not involved in or aware of those negotiations, [the defendant] is not subject to any undue pressure to agree to the plea agreement, and the impartiality of the judge who will sentence him in the event of conviction after trial is not compromised.” (Internal quotation marks omitted.) Id., 507-508, quoting Safford v. Warden, 223 Conn. 180, 194 n.16, 612 A.2d 1161 (1992).

We conclude that the court committed plain error when it presided over the defendant’s violation of probation hearing after having participated actively in plea negotiations with the defendant. The record discloses that during the plea negotiations, the court itself understood that it had participated actively in such a way as to make clear that a different judge would necessarily preside over the defendant’s violation of probation hearing. Although it seems unlikely, on the basis of the record, that at the time of the hearing, the court recalled the nature of its previous involvement, we need not find, nor do we find, actual bias or prejudice on the part of the court. See, e.g., State v. Webb, 238 Conn. 389, 460-61, 680 A.2d 147 (1996); State v. Washington, supra, 39 Conn. App. 182; see State v. Falcon, supra, 68 Conn. App. 889. Because the court presided over the hearing after actively participating in plea negotiations, the appearance of a fair trial was lost.

We disagree with the state’s contention that by failing to raise the issue of Judge Clifford’s disqualification at the violation of probation hearing, the defendant consented to the judge’s participation in the hearing pursuant to § 51-39 (c) and thereby waived appellate review of the issue. The state’s argument is predicated on cases such as Timm v. Timm, 195 Conn. 202, 487 A.2d 191 (1985), which stated that the failure “to raise the issue of the [judge’s] disqualification either before or during the trial, can be construed as the functional equivalent of ‘consent in open court’ to [the judge’s] presiding over the trial” pursuant to § 51-39 (c). Id., 205. The cases relied on by the state in support of its argument, however, are inapposite. None of them renders plain error review of a claimed violation of canon 3 (c) (1) of the Code of Judicial Conduct inappropriate on the basis of § 51-39 (c) where the claimed violation implicates a judge’s responsibility to recuse himself from presiding over a defendant’s trial after having participated actively in plea negotiations with the defendant. As noted previously, that responsibility has recently been underscored by our Supreme Court and by this court. See, e.g., State v. Revelo, supra, 256 Conn. 506; State v. Falcon, supra, 68 Conn. App. 889.

We conclude that the existence of impartiality might reasonably be questioned and the fairness and integrity of and public confidence in the judicial proceeding affected when a court presides over the violation of probation hearing after having participated actively in plea negotiations. In this case, the appearance of a fair trial has been lost and a new revocation of probation hearing is warranted. See, e.g., State v. Washington, supra, 39 Conn. App. 182; see also State v. Falcon, supra, 68 Conn. App. 889.

The judgments are reversed and the cases are remanded for a new revocation of probation hearing.

In this opinion the other judges concurred.

       The defendant raised an additional claim, which we do not reach in view of our resolution. The defendant claimed that the court, Fischer, J., improperly canvassed the defendant so that he was unable to make a knowing and intelligent waiver of his right to counsel, which rendered him without counsel during a critical stage of the proceedings.

       On the same date, the defendant also pleaded nolo contendere to one count of disorderly conduct in violation of General Statutes § 53a-182 and was sentenced to sixty days imprisonment, running concurrently with the sentence for the motor vehicle offenses.

       For the details of the defendant’s appeal from his ensuing convictions of criminal trespass in the first degree and two counts of interfering with an officer, see State v. D’Antonio, 79 Conn. App. 696, 830 A.2d 1196 (2003).

       The defendant and his counsel informed the court that he waived any competency hearing.

       The defendant indicated that he would accept standby counsel if the court wanted that. The court established that the defendant had never represented himself before.

       During the plea negotiations, the following colloquy took place:
      “[The Prosecutor]: This matter ... I did check with probation. [The defendant’s sentence] is not consecutive. It was a concurrent sentence. So, I just wanted to be sure. He owes six months.
      “The Court: You representing yourself, sir?
      “[The Defendant]: Yes, sir, I am.
      “The Court: It’s never a smart move. I’m the one who sentenced you [on the motor vehicle offenses] originally, right? You’ve got thirty months, suspended after twenty-four months, correct? You’ve got two [violations of probation], which, basically, you owe six months on that. You’ve got a trespass [in the first degree for which] you can get up to a year; interfering [with an officer], you can get up to a year. Your exposure is two and one-half years. Do you understand that?
      “[The Defendant]: Yes. I understand that.
      “The Court: Is there any offer from the state on these?
      “[The Prosecutor]: Prior to the [violation of probation], one year execution suspended, six months probation on the criminal trespass.
      “The Court: One year what? Suspended sentence?
      “[The Prosecutor]: It was six months and — one year after six months. And then there was no offer on the interfering and the [violations of probation].

        “The Court: But if it was known he was on probation, would the offer still be like a year after six months, if he was interested in that? I don’t know if you are.
      “[The Defendant]: I had written a letter to the public defender in January that I wanted a speedy trial motion filed. . . .
      “The Court: You are really not eligible. Are you serving a sentence now?
      “[The Defendant]: No, I’m not serving a sentence.
      “The Court: You’re not eligible for a speedy trial until you’ve been incarcerated for eight months. Let me just say this sir. I know you are representing yourself. You know, violation of probation, with all due respect, you don’t— they’re not that hard to prove. You do something on probation, they violate the terms of it, that’s six months right there.
      “[The Defendant]: I’m entitled to a hearing; I’m sure of that.
      “The Court: Listen. I’m trying to help you. Okay. What I’m trying to tell you, it’s not hard to prove those. You go to a hearing on that — you know, it’s not that difficult. You’re not even in front of a jury. It’s in front of a judge. If the judge finds you in violation, bingo, you’ve got six months. The offer is a year after six months.
      “[The Defendant,]: I got three months in now, sir.
      “The Court: That’s good.
      “[The Defendant]: Well, at the time of the arrest the police removed $500 from my front pocket, which would’ve been my bond money for that particular—
      “The Court: You’re not hearing me. You are going to hurt yourself.
      “[The Defendant]: I’m not giving up my right for a trial.
      “The Court: Listen. You can have your right to a trial. I’m just telling you to use some common sense. Okay. You’ve already got a lot of time. If you want to have your trial, you can end up doing two and a half years. You owe six months on the probation. The offer is six months in jail. You’ve got three months in.
      “[The Defendant]: That was only on the [violation of probation] offer— files. Sir, that wasn’t on the criminal trespass.
      “The Court: It’s on something right now, a year after six moths. That’s a good offer.
      “[The Defendant]: I’m not pleading guilty to it because—
      “The Court: Listen. I could [not] care less if you go to trial and get the maximum. I’m just trying to do this for you. If you want to have a trial, go ahead. I could [not] care less.
      “[The Defendant]: Well, Your Honor, it’s nothing to me.
      “The Court: I’m just trying to help you out, pal. I could [not] care less. You don’t want to listen to me, go ahead, we’ll put you down for trial.
      “[The Defendant]: The warrant was signed because of a valid restraining order, which was one year and eight months old. Restraining orders last for six months.
      “The Court: You’re wrong, but that’s all right. I mean—
      “[The Defendant]: You’re the guy who sentenced me, and you ordered— you said there’s no contact being ordered on the day of your sentencing. I have the report right in my files right there.
      “The Court: Fine. You know more than me. That is fine. You’re not going to be in front of me. I guess we should schedule it for a hearing. You represent yourself. And, listen, I did my best to try to help you out. If it doesn’t work out, it doesn’t work out. Nothing off me. I could [not] care less.
      “[The Defendant]: I know article six of the [state] constitution, [and] you took an oath to make sure that you abide by the rules of the constitution.
      “The Court: I’m out of this. I’m trying to help you work the case to your benefit. You want your trial, you get all your rights — all the rights you want, and the judge can sentence you to whatever he or she wants.
      “[The Defendant]: Yup.
      “The Court: That’s what you’ve got to be careful of.
      “[The Defendant]: Also being held right now on all cases, all files on bond.
      “The Court: Excellent point. I don’t know what it means. Put this over for a hearing then.
      “[The Prosecutor]: We can put the [violation of probation] down for a hearing. Start there. The other two cases — start there. If we lose or win that, fine, move on to trial. Start with the [violation of probation].
      “The Court: When do you want to have a hearing?
      “[The Defendant]: As soon as possible.
      “The Court: All right. Let’s schedule — I will have to put it before another judge because I’m not going to handle it. Doesn’t matter to me. I’ve got to find a day that another judge is going to be available to hear it. . . . April third.”

       The following colloquy, in relevant part, took place at the outset of the violation of probation hearing:
      “The Court: I think you and I had a discussion downstairs, didn’t we, last time the case was down, or no?
      “[The Defendant]: No, we had a discussion here in the courtroom, sir.
      “The Court: Was it up here?
      “[The Defendant]: Yes.
      “The Court: It was downstairs.
      “[The Defendant]: I don’t know which floor we’re on right now.
      “The Court: . . . [L]et me just ask you some questions. Okay. I mean, maybe I’m wrong. I thought this was something that came up before. This is scheduled today for a violation of probation hearing. Do you understand that?
      “[The Defendant]: Yes. I understand that.

        “The Court: And my understanding is, and I think we had this conversation before, is that you’re indicating that you want to represent yourself on this.
      “[The Defendant]: Yes, sir.”

       Although the defendant’s sentence may have expired during the pendency of this appeal, the completion of a sentence for a violation of probation does not necessarily render moot an appeal from the decision to revoke probation. See State v. McElveen, 261 Conn. 198, 216, 802 A.2d 74 (2002). In the present case, even if the defendant’s sentence has been completed, there is a reasonable possibility that the same prejudicial collateral consequences identified in McElveen would result from the defendant’s probation revocation. See id., 213-16. Accordingly, because we have determined that there is a reasonable possibility that prejudicial collateral consequences will flow from the revocation of the defendant’s probation, his appeal is not moot.

       Under Golding, a defendant may prevail on an unpreserved claim of constitutional error “only if aU of the following conditions are met: (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.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       Practice Book § 1-23 provides: “Amotion to disqualify ajudicial authority shall be in writing and shall be accompanied by an affidavit setting forth the facts relied upon to show the grounds for disqualification and a certificate of the counsel of record that the motion is made in good faith. The motion shall be filed no less than ten days before the time the case is called for trial or hearing, unless good cause is shown for failure to file within such time.”
      The state’s additional claim that the plea negotiations did not encompass the violation of probation charges is without merit. See footnote 16.

       As noted, the defendant failed to preserve his claim and requested review pursuant to either State v. Golding, supra, 213 Conn. 233, or the plain error doctrine. Because we find that a nonconstitutional ground existed with regard to whether it was plain error for the court to preside over this case after having participated actively in plea negotiations, we need not decide the constitutional claim. We conduct a plain error review rather than a Golding review because “[t]his court, has a basic judicial duty to avoid deciding a constitutional issue if a nonconstitutional ground exists that will dispose of the case.” (Internal quotation marks omitted.) State v. Washington, 39 Conn. App. 175, 176-77 n.3, 664 A.2d 1153 (1995).

       In State v. Washington, supra, 39 Conn. App. 175-79, the defendant, who had been serving a five year term of probation after having pleaded guilty to a narcotics related charge, appealed from the judgment of the trial court revoking his probation and imposing a sentence of five years imprisonment with no probation following his arrest for a variety of alleged offenses. Although the defendant failed to file a motion for the judge’s disqualification pursuant to Practice Book § 997, now § 1-23, and failed to seek plain error review of the propriety of the court’s participation in plea negotiations and the probation revocation hearing, we determined that our sua sponte invocation of plain error review was warranted. Id., 175-81. We held that the court committed plain error in presiding over the probation revocation hearing after having actively participated in plea negotiations with the defendant, the appearance of a fair trial having been lost. Id., 181-82. Accordingly, the judgment was reversed, and the matter was remanded for a new revocation of probation hearing. Id., 183.

       In State v. Falcon, supra, 68 Conn. App. 884-87, the defendant appealed from the judgment of conviction, rendered after a jury trial, of criminal possession of a pistol or revolver, claiming, for the first time on appeal, that the trial court improperly had presided over his trial and sentencing after having actively participated in plea negotiations two years earlier. We afforded plain error review and held that because the existence of impartiality might reasonably be questioned and the fairness and integrity of and public confidence in the judicial proceeding affected, the trial judge committed plain error in failing to recuse himself. Id., 887-89. Accordingly, the judgment was reversed, and the case was remanded for a new trial. Id., 889.

       “Indeed, on those occasions when [our Supreme Court] has addressed claims regarding the active participation in plea bargaining by the judge responsible for trying the case and for sentencing the defendant in the event of a conviction, [it has] underscored the inappropriateness of such conduct due to its inherent dangers.” State v. Revelo, supra, 256 Conn. 506, citing, inter alia, Safford v. Warden, 223 Conn. 180, 194 n.16, 612 A.2d 1161 (1992), State v. Gradzik, 193 Conn. 35, 47, 475 A.2d 269 (1984). “Those dangers are that (1) the trial judge’s impartiality may truly be compromised by his [or her] own perception of a personal stake in the agreement, resulting in resentment of the defendant who rejects [the judge’s] suggested disposition, (2) the defendant may make incriminating concessions during the course of plea negotiations, and (3) the trial judge may become or appear to become an advocate for his [or her] suggested resolution.” (Internal quotation marks omitted.) State v. Revelo, supra, 506 n.23.

       Our Supreme Court has “approved judicial involvement in plea discussions when it is clear to all concerned parties that, in the event a plea agreement is not reached, the judge involved in the plea negotiations will play no role in the ensuing trial, including the imposition of sentence upon conviction.” (Emphasis added.) State v. Revelo, supra, 256 Conn. 506-507.

       pecifically, following the unsuccessful round of plea negotiations, which included a lengthy exchange between the court and the defendant, the court stated, inter alia: “Fine. You know more than me. That is fine. You’re not going to be in front of me. I guess we should schedule it for a hearing. You represent yourself. And, listen, I did my best to try to help you out. If it doesn’t work out, it doesn’t work out. Nothing off me. I could [not] care less. . . . I’m, out of this. I’m trying to help you work the case to your benefit. You want your trial, you get all your rights — all the rights you want and the judge can sentence you to whatever he or she wants. . . . All right. Let’s schedule [the violation of probation hearing] — / will have to put it in front of another judge because I’m not going to handle it. Doesn’t matter to me. I’ve got to find a day that another judge is going to be available to hear it. . . . April third.” (Emphasis added.)

       See footnote 7.

       We are aware of the demanding job and attendant pressures that confront a judge in a high volume court. Nevertheless, “[i]t 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.) State v. Washington, supra, 39 Conn. App. 180.

       General Statutes § 51-39 (c) provides: “When any judge or family support magistrate is disqualified to act in any proceeding before him, he may act if the parties thereto consent in open court.”

       The cases relied on by the state include Timm v. Timm, supra, 195 Conn. 202 (marital dissolution action), and other civil cases. State v. Fitzgerald, 257 Conn. 106, 117, 777 A.2d 580 (2001) (prosecutor’s improper disclosure of part B informat ion to judge prior to trial did not require reversal of conviction under plain error doctrine because any error resulting from prosecutor’s disclosure could have been remedied by request that judge recuse himself); State v. Kohlfuss, 152 Conn. 625, 628-31, 211 A.2d 143 (1965) (involving question of disqualification of judge because judge had sat as member of sentence review division reviewing defendant’s previous, unrelated crime); State v. DeGennaro, 147 Conn. 296, 303, 160 A.2d 480 (where issue was whether parties waived statutory bar on having same judge preside at retrial of same case, court determined that “[n]ot only did each defendant ‘consent in open court,’ to a trial before the same judge; each requested it with earnestness and vigor”), cert. denied, 364 U.S. 873, 81 S. Ct. 116, 5 L. Ed. 2d 95 (1960); State v. Owens, 63 Conn. App. 245, 259, 775 A.2d 325 (no record indicated that plea bargaining actually occurred, so record was inadequate to review defendant's claims that court imposed excessive sentence in retribution for refusal to accept plea bargain), cert. denied, 256 Conn. 933, 776 A.2d 1151 (2001); State v. Maluk, 10 Conn. App. 422, 426-27, 523 A.2d 928 (1987) (record insufficient to determine whether judge actively participated in defendant’s plea negotiations and should have sua sponte disqualified himself from presiding over sentencing, as transcript did not indicate degree, if any, that judge participated in any plea negotiations with defendant).

       We cannot speculate about the failure of the state or the clerk of the court to note and to comment on the previous participation of the trial court. The press of business sometimes yields innocent mistakes. It warrants remark by this court, however, in the hope that cross-checking for that key detail will assist the trial court in the future.


text:
    STATE OF CONNECTICUT v. LOUIS D'ANTONIO
    (AC 23428)
    Foü, Dranginis and DiPentima, Js.

      Argued June 10
    officially released September 30, 2003

      Adele V. Patterson, assistant public defender, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were Timothy J. Liston, state’s attorney, and George Ferko, senior assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, J.

The defendant, Louis D’Antonio, appeals from the judgments of conviction, rendered after a jury trial, of one count of criminal trespass in the first degree in violation of General Statutes § 53a-107 (a) (1) and two counts of interfering with an officer in violation of General Statutes § 53a-167a (a). The dispositive issue on appeal is whether the trial court committed plain error when it presided over the case after having participated actively in pretrial plea negotiations. We reverse the judgments of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. By way of two substitute informations with separate docket numbers, the defendant was charged with, inter alia, (1) one count of criminal trespass in the first degree in violation of § 53a-107 (a) (1) in connection with an incident that allegedly occurred on December 9, 2001, and (2) two counts of interfering with an officer in violation of § 53a-167a (a) in connection with incidents that allegedly occurred on December 10, 2001. Each of the charges relates to the defendant’s allegedly unwanted presence in his mother’s home and the defendant’s conduct when he was arrested there. The cases ultimately were consolidated for trial.

The defendant was arraigned in those cases on December 11, 2001, and the court appointed a public defender as his counsel. On December 18, 2001, the defendant was arraigned on violation of probation charges stemming from his prior convictions for motor vehicle offenses. At that time, the court appointed the public defender who was handling the defendant’s criminal trespass and interfering with an officer cases to represent him in the violation of probation matters. Thereafter, the court held several scheduled proceedings, often involving the criminal trespass and interfering with an officer cases as well as the violation of probation matters.

On January 15, 2002, the defendant appeared in court with his counsel and indicated that he wanted to represent himself. The court told the defendant that before allowing him to represent himself, it was going to order a competency examination. On February 27,2002, when the defendant appeared in court with his counsel, the court, Fischer, J., made an uncontested finding of competency based on the competency report in the file. Again, the defendant raised the issue of self-representation. The court, Fischer, J., allowed the defendant’s counsel to withdraw from the cases involving the charges of criminal trespass in the first degree and interfering with an officer, as well as the violation of probation matters, and, on the same date, the defendant filed a pro se appearance in those cases. On March 20, 2002, the court, Clifford, J., the prosecutor and the defendant engaged in an on the record plea discussion. The defendant refused any offered plea bargain and insisted on exercising his “right for a trial.”

On April 3,2002, the defendant appeared before Judge Clifford for the violation of probation hearing. Although Judge Clifford recalled having had some discussion with the defendant previously in that case, he proceeded to canvass the defendant on the issue of self-representation. The defendant indicated that he was “prepared to continue” and to “go forward” with the hearing. Thereafter, the hearing commenced and concluded, and Judge Clifford found that the defendant did violate a condition of his probation and that the beneficial aspects of probation were no longer being served. Judge Clifford sentenced the defendant to the remaining six months of imprisonment previously suspended on the sentence for the underlying motor vehicle offenses.

At the conclusion of the sentencing phase of the violation of probation hearing, there was a brief on the record discussion of the defendant’s pending criminal trespass and interfering cases. Judge Clifford again briefly canvassed the defendant on the issue of self-representation and appointed standby counsel to assist the defendant in the trial of the charges of criminal trespass in the first degree and interfering with an officer. On June 10,2002, Judge Clifford granted the state’s motion to consolidate those cases for trial. On the same date, during a discussion about whether Judge Clifford had signed an arrest warrant in the case, Judge Clifford asked the defendant, “Do you have a problem with me sitting on [this case?]” The defendant responded that he had “[n]o objection.”

Thereafter, following jury selection on June 12, 2002, the case proceeded to trial before Judge Clifford on June 12, 13, 14 and 18, 2002. During trial, there was no mention by anyone of Judge Clifford’s recusal. On June 18, 2002, the jury returned a guilty verdict on one count of criminal trespass in the first degree in violation of § 53a-107 (a) (1) and two counts of interfering with an officer in violation of § 53a-167a (a). Judge Clifford then sentenced the defendant to a total effective term of two years imprisonment, execution suspended after twenty months, with three years of probation. This appeal followed.

The defendant claims that his trial was unlawfully conducted by the same judge who had conducted plea bargaining on the charges in violation of canon 3 (c) (1) of the Code of Judicial Conduct. The defendant argues that this deprived him of his constitutional right to a fair trial pursuant to the fifth and fourteenth amendments to the United States constitution, and article first, § 8, of the constitution of Connecticut. The defendant contends that the trial judge had a responsibility to recuse himself and, thus, although the defendant did not file a motion to recuse the judge, the error is renewable under either State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or the plain error doctrine pursuant to Practice Book § 60-5.

The state argues that we should not review the question of the propriety of the judge’s participation in the defendant’s trial because it is not properly before us, as the defendant failed to file a motion for the judge’s disqualification pursuant to Practice Book § 1-23. The state maintains that neither plain error review nor review under Golding is appropriate. The state contends, moreover, that by failing to raise the issue of Judge Clifford’s disqualification before or during the trial, the defendant consented to the judge’s participation under General Statutes § 51-39 (c). Although the state is correct in asserting that this court will not normally review claims that have not been preserved for appeal adequately, 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 in original; internal quotation marks omitted.) State v. Falcon, 68 Conn. App. 884, 887, 793 A.2d 274, cert. denied, 260 Conn. 924, 797 A.2d 521 (2002). We conclude that plain error review is warranted “because the impropriety of a court presiding over the trial and sentencing after having actively participated in pretrial plea negotiations is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” Id.; see State v. Washington, 39 Conn. App. 175, 179, 664 A.2d 1153 (1995) (plain error review warranted “because the fairness and integrity of the hearing as well as public confidence in judicial proceedings is involved”).

“Our Supreme Court has stated that a trial court’s failure to follow the mandatory provisions of a statute prescribing trial procedures or to follow a procedural rule constitutes plain error. . . . Canon 3 [c] (1) of the Code of Judicial Conduct requires a judge to disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned. The reasonableness standard is an objective one. Thus, the question is not only whether the particular judge is, in fact, impartial but whether a reasonable person would question the judge’s impartiality on the basis of all the circumstances. . . . Even in the absence of actual bias, a judge must disqualify himself in any proceeding in which his impartiality might reasonably be questioned, because the appearance and the existence of impartiality are both essential elements of a fair exercise of judicial authority.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Falcon, supra, 68 Conn. App. 887-88.

Although pretrial or plea negotiations play a critical role in the criminal justice system, and the disposition of charges after plea discussions is highly desirable, judicial participation in pretrial plea negotiations frequently has been criticized. State v. Revelo, 256 Conn. 494, 505-506, 775 A.2d 260, cert. denied, 534 U.S. 1052, 122 S. Ct. 639, 151 L. Ed. 2d 558 (2001); see also State v. Falcon, supra, 68 Conn. App. 888; State v. Washington, supra, 39 Conn. App. 180-81. In fact, “many jurisdictions bar judges from active participation in plea negotiations.” State v. Revelo, supra, 506 & n.22, citing Fed. R. Crim. P. 11 (e) (1), Colo. Rev. Stat. § 16-7-302 (1) (2000), Wash. Rev. Code Ann. § 9.94A.080 (West 1998).

In Connecticut, however, “[i]t is a common practice . . . for the presiding criminal judge to conduct plea negotiations with the parties. If plea discussions ultimately do not result in a plea agreement, the trial of the case is assigned to a second judge who was not involved in the plea discussions and who is unaware of the terms of any plea bargain offered to the defendant. The judge responsible for trying the case also is responsible for sentencing the defendant in the event the defendant is convicted after trial.” State v. Revelo, supra, 256 Conn. 508 n.25. “[A]s long as the defendant is free to reject the plea offer [made after negotiations conducted by one judge] and go to trial before a [second] judge who was not involved in or aware of those negotiations, [the defendant] is not subject to any undue pressure to agree to the plea agreement, and the impartiality of the judge who will sentence him in the event of conviction after trial is not compromised.” (Internal quotation marks omitted.) Id., 507-508, quoting Safford v. Warden, 223 Conn. 180, 194 n.16, 612 A.2d 1161 (1992).

We conclude that the court committed plain error when it presided over the defendant’s trial and sentencing after having participated actively in plea negotiations with the defendant. The record discloses that during the plea negotiations, the court itself understood that it had participated actively in such a way as to make clear that a different judge would necessarily preside over the defendant’s trial and sentencing. Although it seems unlikely, on the basis of the record, that at the time of the trial, the court recalled the nature of its previous involvement, we need not find, nor do we find, actual bias or prejudice on the part of the court. See, e.g., State v. Webb, supra, 238 Conn. 389, 460-61, 680 A.2d 147 (1996); see also State v. Falcon, supra, 68 Conn. App. 889; State v. Washington, supra, 39 Conn. App. 182. Because the court presided over the trial and sentencing after having participated actively in plea negotiations, the appearance of a fair trial was lost.

We disagree with the state’s contention that by failing to raise the issue of Judge Clifford’s disqualification prior to or during the trial, the defendant consented to the judge’s participation pursuant to § 51-39 (c), and thereby waived appellate review of the issue. The state’s argument is predicated on cases such as Timm v. Timm, 195 Conn. 202, 487 A.2d 191 (1985), which stated that the failure “to raise the issue of the [judge’s] disqualification either before or during the trial, can be construed as the functional equivalent of ‘consent in open court’ to [the judge’s] presiding over the trial” pursuant to § 51-39 (c). Id., 205. The cases relied upon by the state in support of its argument, however, are inapposite. None of them renders plain error review of a claimed violation of canon 3 (c) (1) of the Code of Judicial Conduct inappropriate on the basis of § 51-39 (c) where the claimed violation implicates a judge’s responsibility to recuse himself from presiding over a criminal defendant’s trial after having participated actively in plea negotiations with the defendant. As noted previously, that responsibility recently has been underscored by our Supreme Court and by this court. See, e.g., State v. Revelo, supra, 256 Conn. 506; State v. Falcon, supra, 68 Conn. App. 889.

We conclude that the existence of impartiality might reasonably be questioned and the fairness and integrity of and public confidence in the judicial proceeding affected when a court presides over the trial and sentencing after having participated actively in plea negotiations. In this case, the appearance of a fair trial has been lost and a new trial is warranted. See, e.g., State v. Washington, supra, 39 Conn. App. 182; see also State v. Falcon, supra, 68 Conn. App. 889.

The judgments are reversed and the cases are remanded for a new trial.

In this opinion the other judges concurred.

       Although the defendant had been charged with two counts of criminal trespass in the first degree, the court granted the defendant’s motion for a judgment of acquittal as to one of those counts at trial after the state rested its case.

       The defendant raised two additional claims, which we do not reach in view of our resolution. The defendant claimed (1) that the court improperly canvassed him so that he was unable to make a knowing and intelligent waiver of his right to counsel, which rendered him without counsel during a critical stage of the proceedings, and (2) that he was convicted twice, improperly, for the same offense in violation of the constitutional prohibition against double jeopardy.

       For the details of the defendant’s appeal from the ensuing judgments of the trial court revoking his probation, see State v. D'Antonio, 79 Conn. App. 683, 830 A.2d 1187 (2003).

       The defendant and his counsel informed the court that he waived any competency hearing.

       The defendant indicated that he would accept standby counsel if the court wanted that. The court established that the defendant had never represented himself before.

       During the plea negotiations, the following colloquy took place:
      “[The Prosecutor]: This matter ... I did check with probation. [The defendant’s sentence] is not consecutive. It was a concurrent sentence. So, I just wanted to be sure. He owes six months.
      “The Court: You representing yourself, sir?
      “[The Defendant]: Yes, sir, I am.
      “The Court: It’s never a smart move. I’m the one who sentenced you [on the motor vehicle offenses] originally, right? You’ve got thirty months, suspended after twenty-four months, correct? You’ve got two [violations of probation], which, basically, you owe six months on that. You’ve got a trespass [in the first degree for which] you can get up to a year; interfering [with an officer], you can get up to a year. Your exposure is two and one-half years. Do you understand that?
      “[The Defendant]: Yes. I understand that.
      “The Court: Is there any offer from the state on these?
      “ [The Prosecutor]: Prior to the [violation of probation], one year execution suspended, six months probation on the criminal trespass.
      “The Court: One year what? Suspended sentence?
      “[The Prosecutor]: It was six months and — one year after six months. And then there was no offer on the interfering and the [violations of probation],
      “The Court: But if it was known he was on probation, would the offer still be like a year after six months, if he was interested in that? I don’t know if you are.
      “[The Defendant]: I had written a letter to the public defender in January that I wanted a speedy trial motion filed. . . .
      “The Court: You are really not eligible. Are you serving a sentence now?
      “[The Defendant]: No, I’m not serving a sentence.
      “The Court: You’re not eligible for a speedy trial until you’ve been incarcerated for eight months. Let me just say this sir. I know you are representing yourself. You know, violation of probation, with all due respect, you don’t— they’re not that hard to prove. You do something on probation, they violate the terms of it, that’s six months right there.
      “[The Defendant]: I’m entitled to a hearing; I’m sure of that.
      “The Court: Listen. I’m trying to help you. Okay. What I’m trying to tell you, it’s not hard to prove those. You go to a hearing on that — you know, it’s not that difficult. You’re not even in front of a jury. It’s in front of a judge. If the judge finds you in violation, bingo, you’ve got six months. The offer is a year after six months.
      “[The Defendant]: I got three months in now, sir.
      “The Court: That’s good.
      “[The Defendant]: Well, at the time of the arrest the police removed $500 from my front pocket, which would’ve been my bond money for that particular—
      “The Court: You’re not hearing me. You are going to hurt yourself.
      “[The Defendant]: I’m not giving up my right for a trial.
      “The Court: Listen. You can have your right to a trial. I’m just telling you to use some common sense. Okay. You’ve already got a lot of time. If you want to have your trial, you can end up doing two and a half years. You owe six months on the probation. The offer is six months in jail. You’ve got three months in.
      “[The Defendant]: That was only on the [violation of probation] offer— files. Sir, that wasn’t on the criminal trespass.
      “The Court: It’s on something right now, a year after six months. That’s a good offer.
      “[The Defendant]: I’m not pleading guilty to it because—
      “The Court: Listen. I could [not] care less if you go to trial and get the maximum. I’m just trying to do this for you. If you want to have a trial, go ahead. I could [not] care less.

        “[The Defendant]: Well, Your Honor, it’s nothing to me.
      “The Court: I’m just trying to help you out, pal. I could [not] care less. You don’t want to listen to me, go ahead, we’ll put you down for trial.
      “[The Defendant]: The warrant was signed because of a valid res1 raining order, which was one year and eight months old. Restraining orders last for six months.
      “The Court: You’re wrong, but that’s all right. I mean—
      “[The Defendant]: You’re the guy who sentenced me, and you ordered— you said there’s no contact being ordered on the day of your sentencing. I have the report right in my files right there.
      “The Court: Pine. You know more than me. That is fine. You’re not going to be in front of me. I guess we should schedule it for a hearing. You represent yourself. And, listen, I did my best to try to help you out. If it doesn’t work out, it doesn’t work out. Nothing off me. I could [not] careless.
      “[The Defendant]: I know article six of the [state] constitution, [and] you took an oath to make sure that you abide by the rales of the constitution.
      “The Court: I’m out of this. I’m trying to help you work the case to your benefit. You want your trial, you get all your rights — all the rights you want, and the judge can sentence you to whatever he or she wants.
      “[The Defendant]: Yup.
      “The Court: That’s what you’ve got to be careful of.
      “[The Defendant]: Also being held right now on all cases, all files on bond.
      “The Court: Excellent point. I don’t know what it means. Put this over for a hearing then.
      “[The Prosecutor]: We can put the [violation of probation] down for a hearing. Start there. The other two cases — start there. If we lose or win that, fine, move on to trial. Start with the [violation of probation].
      “The Court: When do you want to have a hearing?
      “[The Defendant]: As soon as possible.
      “The Court: All right. Let’s schedule — I will have to put it before another judge because I’m not going to handle it. Doesn’t matter to me. I’ve got to find a day that another judge is going to be available to hear it. . . . April third.”

       The following colloquy, in relevant part, took place at the outset of the violation of probation hearing:
      “The Court: I think you and I had a discussion downstairs, didn’t we, last time the case was down, or no?
      “[The Defendant]: No, we had a discussion here in the courtroom, sir.

        “The Court: Was it up here?
      “[The Defendant]: Yes.
      “The Court: It was downstairs.
      “[The Defendant]: I don’t know which floor we’re on right now.
      “The Court: . . . [L]et me just ask you some questions. Okay. I mean, maybe I’m wrong. I thought this was something that came up before. This is scheduled today for a violation of probation hearing. Do you understand that?
      “[The Defendant]: Yes. I understand that.
      “The Court: And my understanding is, and I think we had this conversation before, is that you’re indicating that you want to represent yourself on this.
      “[The Defendant]: Yes, sir.”

       When Judge Clifford was determining an appropriate sentence to impose on the defendant for the violation of probation, the defendant mentioned that he “had come to this courtroom fourteen times, not [merely] this particular courthouse fourteen times.” Judge Clifford sought to recall his prior interactions with the defendant, stating: “Quite frankly, I vaguely remember you, but I don’t remember all the specifics.”

       The court addressed the subject of the defendant’s self-representation on other occasions prior to trial, including during the proceedings on June 10 and 12, 2002.

       Under Golding, a defendant, may prevail on an unpreserved claim of constitutional error “only if all of the following conditions are met: (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.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       Practice Book § 1-23 provides: “A motion to disqualify a judicial authority shall be in writing and shall be accompanied by an affidavit setting forth the facts relied upon to show the grounds for disqualification and a certificate of the counsel of record that the motion is made in good faith. The motion shall be filed no less than ten days before the time the case is called for trial or hearing, unless good cause is shown for failure to file within such time.”

       The state also asserts that the defendant expressly consented to Judge Clifford’s participation in the trial when Judge Clifford asked the defendant, on June 10, 2002: “Do you have a problem with me sitting on [this case]” based on the fact that Judge Clifford had signed the defendant’s arrest warrant? The defendant responded: “No objection.” We construe the defendant’s response as limited to the judge’s signing of the arrest warrant.

       As noted, the defendant failed to preserve his claim and requested review pursuant to either State v. Golding, supra, 213 Conn. 233, or the plain error doctrine. Because we find that a nonconstitutional ground existed with regard to whether it was plain error for the court to preside over this case after having participated actively in plea negotiations, we need not decide the constitutional claim. We conduct a plain error review rather than a Golding review because “[t]his court has a basic judicial duty to avoid deciding a constitutional issue if a nonconstitutional ground exists that will dispose of the case.” (Internal quotation marks omitted.) State v. Washington, 39 Conn. App. 175, 176-77 n.3, 664 A.2d 1153 (1995).

       In State v. Falcon, supra, 68 Conn. App. 884-87, the defendant appealed from the judgment of conviction, rendered after a jury trial, of criminal possession of a pistol or revolver, claiming, for the first time on appeal, that the trial court, improperly had presided over his trial and sentencing after having actively participated in plea negotiations two years earlier. We afforded plain error review and held that because the existence of impartiality might reasonably be questioned and the fairness and integrity of and public confidence in the judicial proceeding affected, the trial judge committed plain error in failing to recuse himself. Id., 887-89. Accordingly, the judgment was reversed, and the case was remanded for a new trial. Id., 889.

       In State v. Washington, supra, 39 Conn. App. 175-79, the defendant, who had been serving a five year term of probation after having pleaded guilty to a narcotics related charge, appealed from the judgment of the trial court revoking his probation and imposing a sentence of five years imprisonment with no probation following his arrest for a variety of alleged offenses. Although the defendant failed to file a motion for the judge’s disqualification pursuant to Practice Book § 997, now § 1-23, and failed to seek plain error review of the propriety of the court’s participation in plea negotiations and the probation revocation hearing, we determined that our sua sponte invocation of plain error review was warranted. Id., 175-81. We held that the court committed plain error in presiding over the probation revocation hearing after having actively participated in plea negotiations with the defendant, the appearance of a fair trial having been lost. Id., 181-82. Accordingly, the judgment was reversed, and the matter was remanded for a new revocation of probation hearing. Id., 183.

       “Indeed, on those occasions when [our Supreme Court] has addressed claims regarding the active participation in plea bargaining by the judge responsible for trying the case and for sentencing the defendant in the event of a conviction, [it has] underscored the inappropriateness of such conduct due to its inherent dangers.” State v. Revelo, supra, 256 Conn. 506, citing, inter alia, Safford v. Warden, 223 Conn. 180, 194 n.16, 612 A.2d 1161 (1992), State v. Gradzik, 193 Conn. 35, 47, 475 A.2d 269 (1984). “Those dangers are that (1) the trial judge’s impartiality may truly be compromised by his [or her] own perception of a personal stake in the agreement, resulting in resentment of the defendant who rejects [the judge’s] suggested disposition,

        (2) the defendant may make incriminating concessions during the course ofplea negotiations, and (3) the trial judge may become or appear to become an advocate for his [or her] suggested resolution.” (Internal quotation marks omitted.) State v. Revelo, supra, 506 n.23.

       Our Supreme Court has “approved judicial involvement in plea discussions when it is clear to all concerned parties that, in the event a plea agreement is not reached, the judge involved in the plea negotiations will play no role in the ensuing trial, including the imposition of sentence upon conviction.” (Emphasis added.) State v. Revelo, supra, 256 Conn. 506-507.

       Specifically, following the unsuccessful round of plea negotiations, which included a lengthy exchange between the court and the defendant, the court stated, inter alia: “Fine. You know more than me. That is fine. You're not going to be in front of me. I guess we should schedule it for a hearing. You represent yourself. And, listen, I did my best to try to help you out. If it doesn’t work out, it doesn’t work out. Nothing off me. I could [not] care less. . . . I’m out of this. I’m trying to help you work the case to your benefit. You want your trial, you get all your rights — all the rights you want and the judge can sentence you to whatever he or she wants. . . . All right. Let’s schedule [the violation of probation hearing] — I will have to put it in front of another judge because I’m not going to handle it. Doesn’t matter to me. I’ve got to find a day that another judge is going to be available to hear it. . . . April third.” (Emphasis added.)

       As to the court’s recollection of the defendant or lack thereof during proceedings occurring prior to the defendant’s trial, see footnotes 7 and 8.

       We are aware of the demanding job and attendant pressures that confront a judge in a high volume court. Nevertheless, “[i]t 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.) State v. Washington, supra, 39 Conn. App. 180.

       General Statutes § 51-39 (c) provides: “When any judge or family support magistrate is disqualified to act in any proceeding before him, he may act if the parties thereto consent in open court.”

       The cases relied on by the state include Timm v. Timm, supra, 195 Conn. 202 (marital dissolution action), and other civil cases. State v. Fitzgerald, 257 Conn. 106, 117, 777 A.2d 580 (2001) (prosecutor’s improper disclosure of part B information to judge prior to trial did not require reversal of conviction under plain error doctrine because any error resulting from prosecutor’s disclosure could have been remedied by request that judge recuse himself); State v. Kohlfuss, 152 Conn. 625, 628-31, 211 A.2d 143 (1965) (involving question of disqualification of judge because judge had sat as member of sentence review division reviewing defendant’s previous, unrelated crime); State v. DeGennaro, 147 Conn. 296, 303, 160 A.2d 480 (where issue was whether parties waived statutory bar on having same judge preside at retrial of same case, court determined that “[n]ot only did each defendant ‘consent in open court’ to a trial before the same judge; each requested it with earnestness and vigor”), cert. denied, 364 U.S. 873, 81 S. Ct. 116, 5 L. Ed. 2d 95 (1960); State v. Owens, 63 Conn. App. 245, 259, 775 A.2d 325 (no record indicated that plea bargaining actually occurred, so record was inadequate to review defendant’s claims that court imposed excessive sentence in retribution for refusal to accept plea bargain), cert. denied, 256 Conn. 933, 776 A.2d 1151 (2001); State v. Maluk, 10 Conn. App. 422, 426-27, 523 A.2d 928 (1987) (record insufficient to determine whether judge actively participated in defendant’s plea negotiations and should have sua sponte disqualified himself from presiding over sentencing, as transcript did not indicate degree, if any, that judge participated in any plea negotiations with defendant).

       We cannot speculate about the failure of the state or the clerk of the court to note and to comment on the previous participation of the trial court. The press of business sometimes yields innocent mistakes. It warrants remark by this court, however, in the hope that cross-checking for that key detail will assist the trial court in the future.