author: WEST, J.

text:
    TOWN OF MONTVILLE v. LEO ANTONINO ET AL.
    (AC 23056)
    Lavery, C. J., and West and DiPentima, Js.
    Argued May 28
    officially released July 8, 2003

      Ronald F. Ochsner, for the appellant (plaintiff).

      Dana M. Horton, for the appellees (named defendant et al.).
   Opinion

WEST, J.

In this eminent domain action, initiated pursuant to General Statutes § 7-247, the plaintiff, the town of Montville (town), appeals from the judgment rendered following a trial to the court. On appeal to this court, the town claims that the trial court improperly (1) denied its motion to correct and alter the court’s memorandum of decision, and (2) determined the damages sustained by the defendant owners (owners). Although we conclude that the memorandum of decision contained minor factual, typographical and proofreading errors, the court’s decision was not clearly erroneous. We therefore affirm the judgment of the trial court.

The following facts are not in dispute. The town initiated this action by and through its water pollution control authority to acquire a portion of the owners’ real property, where additional waste water treatment facilities were to be constructed. At the time, November, 2000, the owners’ property consisted of approximately thirty-one acres of land adjacent to the existing waste water treatment plant just off Route 32 in the town. Pursuant to the condemnation, the town took six distinct parcels of the owners’ land totaling six acres. In addition to acquiring a fee simple interest in the owners’ property, the town also obtained slope easements and a permanent right of way over the land of the defendants. On November 7, 2000, the town filed a statement of compensation and deposited $100,000 with the clerk of the Superior Court for the judicial district of New London. The owners filed an appeal and application for review of the statement of compensation.

The court held a hearing on the owners’ appeal at which time it heard testimony from three real estate appraisers, two testifying for the town and one testifying for the owners. The court also viewed the subject real property. The court found the testimony of the owners’ appraiser to be more accurate and appropriate, and that his comparisons appeared to be closer to the actual demographics of the land in question. The court awarded the owners $452,000 in damages as a result of the loss they sustained due to the taking. The town subsequently filed a motion to correct the court’s memorandum of decision, which the court denied. The town appealed to this court.

Our Supreme Court has stated the scope of appellate review and the purpose of condemnation proceedings. See Commissioner of Transportation v. Towpath Associates, 255 Conn. 529, 767 A.2d 1169 (2001). “[T]he scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings are clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. . . .

“Article first, § 11, of the Connecticut constitution provides that [t]he property of no person shall be taken for public use, without just compensation therefor. This court has stated consistently that [t]he question of what is just compensation is an equitable one rather than a strictly legal or technical one. The paramount law intends that the condemnee shall be put in as good condition pecuniarily by just compensation as he [or she] would have been in had the property not been taken. . . .

“The amount that constitutes just compensation is the market value of the condemned property when put to its highest and best use at the time of the taking. . . . The fair market value is the price that a willing buyer would pay a willing seller based on the highest and best possible use of the land assuming, of course, that a market exists for such optimum use. . . . The highest and best use of a given parcel contemplates the use which will most likely produce the highest market value, greatest financial return, or the most profit .... In determining its highest and best use the [trier of fact] must consider whether there was a reasonable probability that in the reasonably near future the subject property would be put to that use, and the effect, if any, that such a prospective use may have on market value at the time of the taking. . . . [Questions of highest and best use and reasonable probability of future changes affecting value are factual determinations for trier ....

“In an eminent domain proceeding, a trial court may seek aid in the testimony of experts, but must ultimately make its own independent determination of fair compensation ... on the basis of all the circumstances bearing upon value. . . . Our cases have reaffirmed the principle that, because each parcel of real property is in some ways unique, trial courts must be afforded substantial discretion in choosing the most appropriate method of determining the value of a taken property.” (Citations omitted; internal quotation marks omitted.) Id., 539-41.

I

The town’s first claim is that the court improperly denied its motion to correct or alter the memorandum of decision to correct the factual and editorial errors it contained. Although the court’s memorandum of decision contains minor factual and editorial mistakes, none of the errors, as the town concedes in its brief, is relevant to the court’s judgment.

The town has pointed out three typographical errors in the court’s memorandum of decision. Inasmuch as the errors were committed by a typist and overlooked by a proofreader, they are recognized by the reader as errors of that nature. “It is axiomatic that courts have the power and the duty to correct judgments which contain clerical errors or judgments which have issued due to inadvertence or mistake. ... If a memorandum incorrectly formalizes the decision that was reached in deliberation, it should be corrected.” (Internal quotation marks omitted.) Jetmore v. Jetmore, 6 Conn. App. 632, 635, 507 A.2d 116 (1986). The mistakes in the court’s memorandum do not go to the formalization of the court’s decision, unlike the mistake in Jetmore, a marital dissolution action in which the court stated that the marital home was owned jointly by the parties but, in fact, was held in the name of the plaintiff only. The editorial mistakes at issue here do not go to the substance of the court’s decision, and the court did not improperly deny the town’s motion to correct on those bases.

In addition to the editorial errors contained in the memorandum of decision, the town also has pointed out five additional misstatements of the court with respect to the testimony presented at the hearing. Although the town claims that these errors are more serious than the editorial mistakes previously addressed, it concedes that in and of themselves, they are relatively minor. To resolve the town’s more serious claims, we have reviewed the transcript of the hearing before the court. We will address each of the town’s assertions of error.

The first factual error noted by the town is the court’s statement that the “plaintiff retained F. Jerome Silverstein” as its expert real estate appraiser. In a manner of speaking, the court misspoke. The error is one that commonly occurs in the trial court when the court, and sometimes the parties, confuses the positions of the parties. As the case caption is styled, the town is the plaintiff because it initiated the condemnation proceeding. The owners are defendants, but the owners took the appeal and had the burden going forward at the hearing. The owners, therefore, presented evidence first. Although the statement is technically inaccurate, the inaccuracy has no bearing on the court’s ultimate conclusion.

The town also has pointed out inaccuracies in the court’s recitation of facts related to a comparable sale noted by the owners’ appraiser. The court wrote “a sale of 10.1 acres with a value of $44,000 per acre.” This statement contains another typographical error in that the average value per acre contained in the appraiser’s report is $44,600. The parcel of land in question con-tamed 10.1 acres of land of which only 7.5 acres was usable. The appraiser noted the average price per acre for the total parcel and the average price per acre of useable land. In reading the appraiser’s report, we can see how one’s eye could skip a line and cause the mistake made. The error, however, is not consequential. Although we urge trial courts to read and to quote from exhibits with care, and to proofread memoranda of decision punctiliously to avoid the type of mistake that occurred here, the misstatement at issue, again, does not go to the essence of the court’s ultimate decision as to the value of the loss sustained by the owners.

The town also claims that the court improperly stated that in the opinion of one of the town’s expert appraisers, Robert H. Silverstein, the value of the taking was $72,000, rather than $100,000 as stated in Robert Silverstein’s written report. We note that the court is the arbiter of facts. During the hearing, Robert Silverstein testified that the value of the taking was $72,000, that sum being the difference between the pretaking value of the real estate and the posttaking value of the land. Robert Silverstein also testified that at a later time, he determined the value of the taking to be $100,000. We, therefore, cannot conclude that the court misstated Robert Silverstein’s value of the taking. Whether his appraisal of the taking was $72,000 or $100,000, it did not tip the scales with respect to the court’s decision.

The town’s fourth claim concerns yet another misstatement of the court that fails to go to the crux of its decision. The court’s memorandum of decision states that one of the town’s testifying expert witnesses was Robert J. Flanagan. Robert J. Flanagan participated in the preparation of the town’s appraisal, but Stephen Flanagan testified at the hearing.

The last of the town’s claims of incorrect statements made by the court is that Stephen Flanagan did not comment on the effect of the property’s proximity to the waste water treatment plant. In fact, Stephen Flanagan did testify that the waste water treatment plant was a negative factor with respect to the value of the property, and his written appraisal contains that opinion as well. Again, although the court’s memorandum of decision contains factual inaccuracies with respect to the evidence, those inaccuracies do not rise to the level of reversible error.

Although we agree with the town that it would have been “good housekeeping” for the court to have granted the town’s motion to correct the misstatements and editorial errors in its memorandum of decision, we cannot conclude that the court’s judgment should be reversed on the basis of the mistakes drawn to our attention by the town.

II

The town’s second claim is that the court improperly determined the amount of damages sustained by the owners due to the taking of their real property. More specifically, the town claims that the court improperly relied on the appraisal of the owners’ real estate appraiser because the appraisal was excessive and speculative, and that the court’s reliance on that appraisal was clearly erroneous. We disagree.

“This is an issue of valuation. Valuation is a matter of fact to be determined by the trier’s independent judgment. See Bridge Street Associates v. Water Pollution Control Authority, 15 Conn. App. 140, 147, 543 A.2d 1351 (1988). Because this is a challenge to the court’s finding of facts, we apply a clearly erroneous standard of review. A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Connecticut National Bank v. Giacomi, 242 Conn. 17, 70, 699 A.2d 101 (1997). It is axiomatic that we defer to the trial court’s assessment of the credibility of witnesses and the weight to afford their testimony. Briggs v. McWeeny, 260 Conn. 296, 327, 796 A.2d 516 (2002).” (Internal quotation marks omitted.) New London v. Picinich, 76 Conn. App. 678, 685, 821 A.2d 782 (2003).

F. Jerome Silverstein, areal estate appraiser, testified on behalf of the owners. In reaching his opinion as to the value of the town’s taking of the owners’ real property, he used the comparative sales method of analysis. He cited four properties he considered comparable to the owners’ land. On appeal, the town claims that the four other parcels of land are not comparable to the land in question and that the appraisal therefore lacks credibility.

The town first attacks the access characteristic of the five parcels of land. According to F. Jerome Silverstein, access to the owners’ property is good. The town claims that the other four properties are within a very short distance from the interstate highway system because they are accessible from the interstate highway over a short stretch of state highway. With respect to the four comparable properties, the town describes accessibility with adjectives such as short or very short. With respect to the accessibility of the owners’ property to the interstate highway system, the town describes the distance in feet. It claims that the owners’ land is more than 3500 feet from the interstate highway system and can be reached by traveling 2000 feet over each of two state highways. This court takes judicial notice that there are 5280 feet in one mile. In concluding that the five properties were comparable, the trial court obviously found no difference between a very short distance, a short distance and less than one mile. We do not con-elude that the court’s finding of the properties to be comparable to be clearly erroneous.

The town also takes exception to F. Jerome Silverstein’s conclusion that the best use of the property would be a retail and office center. The town’s real estate appraisers concluded that the best use of the land was for commercial development, according to Robert Silverstein, or secondary commercial or industrial use, according to Stephen Flanagan. Robert Silverstein opined that the subject land was in the town’s main retail area. The town has failed to make clear to this court how F. Jerome Silverstein’s opinion is inconsistent with the opinions of its own appraisers.

F. Jerome Silverstein also opined that the fact that the owners’ property was adjacent to the waste water treatment plant was not a negative factor. Both Robert Silverstein and Stephen Flanagan testified to the contrary. They also opined that the presence of an old cemetery on the property was a negative, as did F. Jerome Silverstein. The town therefore claims that F. Jerome Silverstein’s testimony is not credible. In its report, the court noted the differences in the opinions of the various appraisers. Courts of appeal do not pass on the credibility of witnesses. Credibility is a matter for the trier of fact to determine and, on the basis of the record before us, we cannot say that the court’s conclusion was clearly erroneous.

In its conclusion, the court noted that all three appraisers considered the same factors as to the area, zoning, location and demographics. The primary difference in their analyses was the value of the owners’ real property prior to the taking and the market value of it after the taking. The court found that the difference in the valuations of the three appraisers varied by as much as 25 percent. The court concluded that the values expressed by F. Jerome Silverstein were more accurate and appropriate because his comparisons were closer to the actual demographics of the land in question. On the basis of our review of the evidence and the transcript of the hearing, we do not conclude that the court’s finding was clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants in the trial court were Leo Antonino, Girard Antonino, John Antonino, Lawall Realty, LP, and Citizens Bank of Connecticut. Lawall Realty, LP, is not a party to this appeal.

       As a matter of fact, counsel for both parties made that common mistake at the hearing when each side rested. When the owners rested, counsel stated, “Plaintiff rests.” When the town rested, counsel stated, “The defense has nothing further, Your Honor.” The court cannot be faulted for having made a common slip of the tongue.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ANDREW S. RAJCOK v. STOP AND SHOP COMPANIES, INC.
    (AC 23356)
    Lavery, C. J., and Foti and Flynn, Js.
    Submitted on briefs May 2
    officially released June 10, 2003
   Per Curiam.

The judgment is affirmed.


text:
    VALERY JO PARZIALE v. THOMAS PARZIALE
    (AC 23418)
    Lavery, C. J., and Foti and Flynn, Js.
    Submitted on briefs May 2
    officially released June 10, 2003
   Per Curiam.

The judgment is affirmed.


text:
    EARL BONHOTEL v. NANCY BONHOTEL
    (AC 23522)
    Foti, Schaller and West, Js.
    Argued May 7
    officially released June 10, 2003
   Per Curiam.

The judgment is affirmed.


text:
    WALTER MROWKA v. JOHN BERNARDI
    (AC 22909)
    Foti, Schaller and West, Js.
    Argued May 7
    officially released June 10, 2003
   Per Curiam.

The judgment is affirmed.


text:
    FRANK VANDEVER v. COMMISSIONER OF CORRECTION
    (AC 22933)
    Lavery, C. J., and Foti and Flynn, Js.
    Submitted on briefs May 2
    officially released June 10, 2003
   Per Curiam.

The habeas court did not abuse its discretion in denying the petition for certification to appeal from the dismissal of the petition for a writ of habeas corpus.

The appeal is dismissed.


text:
    RICHARD A. LORICCO, SR., TRUSTEE v. EDMUND L. PANTANI ET AL.
    (AC 22609)
    Dranginis, McLachlan and Hennessy, Js.
    Argued June 2
    officially released July 8, 2003
   Per Curiam.

The judgment is affirmed.


text:
    FREDERICK ALTFETER ET AL. v. BOROUGH OF NAUGATUCK ET AL.
    (AC 22196)
    Schaller, Mihalakos and Hennessy, Js.
    Argued June 6
    officially released July 8, 2003
   Per Curiam.

The judgment is affirmed.


text:
    EDWARD ANDREWS v. COMMISSIONER OF CORRECTION
    (AC 22661)
    Schaller, Dranginis and Bishop, Js.
    Submitted on briefs June 11
    officially released July 8, 2003
   Per Curiam.

The judgment is affirmed.


text:
    WILLIAM DONLIN v. CYTEC INDUSTRIES, INC., ET AL.
    (AC 23205)
    Flynn, West and DiPentima, Js.
    Submitted on briefs June 11
    officially released July 8, 2003
   Per Curiam.

The decision of the workers’ compensation review board is affirmed.


text:
    LINDA JOHNSON v. DYSAI-KUEN TONG
    (AC 23481)
    Flynn, West and DiPentima, Js.
    Submitted on briefs June 11
    officially released July 8, 2003
   Per Curiam.

The judgment is affirmed.


text:
    DANYELLE JEFFERY v. BLUE RIBBON LEASING, INC., ET AL.
    (AC 23509)
    Lavery, C. J., and Foti and McLachlan, Js.
    Submitted on briefs June 11
    officially released July 8, 2003
   Per Curiam.

The judgment is affirmed.


text:
    MARIO VARGAS v. COMMISSIONER OF CORRECTION
    (AC 23519)
    Schaller, Dranginis and Bishop, Js.
    Submitted on briefs June 11
    officially released July 8, 2003
   Per Curiam.

The judgment is affirmed.


text:
    LARRY PELLETIER v. DAVID ROMAINE ET AL.
    (AC 23520)
    Schaller, Dranginis and Bishop, Js.
    Submitted on briefs June 11
    officially released July 8, 2003
   Per Curiam.

The judgment is affirmed.


author: FLYNN, J.

text:
    STATE OF CONNECTICUT v. GAYLORD SALTERS
    (AC 22101)
    Dranginis, Flynn and West, Js.
    Argued February 11
    officially released July 15, 2003

      Donald D. Dakers, special public defender, for the appellant (defendant).

      Eileen F. McCarthy, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James G. Clark, senior assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The defendant, Gaylord Salters, appeals from the judgment of conviction, rendered after a jury trial, of one count of assault of an employee of the department of correction in violation of General Statutes (Rev. to 1993) § 53a-167c, as amended by Public Acts 1993, No. 93-246, § 1, and Public Acts 1994, No. 94-62. On appeal, the defendant claims that the trial court improperly (1) instructed the jury in a manner that violated his constitutional right to present a defense of self-defense and (2) admitted into evidence portions of the rules of conduct of the John R. Manson Youth Institution. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On November 24,1994, the defendant and Charles Fraizer were cellmates at the John R. Manson Youth Institution in Cheshire. After the inmates finished their lunch, Patrick Sampson, a correction officer, ordered the inmates back to their cells. Fraizer delayed in his return to his cell, and Sampson decided to issue him an informal disposition as punishment. Sampson ordered Fraizer out of his cell so he could receive the written notice of the report. Fraizer took the report, formed it into a ball and threw the report at Sampson. Fraizer then swung at Sampson with his fist. A fight ensued between Sampson and Fraizer during which they both fell to the floor.

Patrick Marangone, another correction officer, attempted to move Fraizer off of Sampson. The defendant, who had left his cell during the altercation, kicked Marangone in the head. Marangone fell to the floor and the defendant proceeded to kick him repeatedly in the head, back and legs. Other correction officers arrived and restrained Fraizer and the defendant. Sampson and Marangone were taken for medical treatment of their injuries sustained during the fight.

The defendant offered other countervailing evidence, claiming that he had acted in self-defense, and he posits a different factual scenario in support of his claim. The defendant testified that he left his cell to pull Fraizer away from Sampson and that he did not notice Marangone until Marangone punched him in the chin without provocation. The defendant claimed that Marangone kept coming toward him in an aggressive manner and that he did not have anywhere to run. The defendant stated that he fought with Marangone to defend himself.

The court instructed the jury on the elements of self-defense pursuant to General Statutes § 53a-19. Our Supreme Court released its opinion in State v. Davis, 261 Conn. 553, 804 A.2d 781 (2002), on August 27, 2002. In Davis, the court held that “when a defendant has been charged only with violations of § 53a-167c or [General Statutes] § 53a-167a, he is not entitled to an instruction on self-defense.” State v. Davis, supra, 573. This opinion was issued after the defendant filed his appellate brief, but before the state filed its appellate brief. We, therefore, ordered the parties to file simultaneous supplemental briefs addressing the effect, if any, of Davis on the issues presently before us on appeal.

I

The defendant’s first claim is that the court improperly instructed the jury in violation of his constitutional right to present a defense of self-defense. We do not agree.

The defendant conceded in his brief that this issue was not properly preserved at trial, and, therefore asks this court to review his claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). “[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.” (Emphasis in original.) Id., 239-40. Because the record is adequate for review and the fundamental right to present a defense, including proper jury instructions on the elements of the defense, is of constitutional magnitude, we will review the claim. See State v. Montanez, 71 Conn. App. 246, 252, 801 A.2d 868, cert. denied, 261 Conn. 935, 806 A.2d 1069 (2002).

We next set out certain standards applicable to our review. “[T]he standard of review to be applied to the defendant’s constitutional claim is whether it is reasonably possible that the jury was misled. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) Id., 252-53; see State v. Davis, supra, 261 Conn. 564. In construing statutes, our review is plenaiy. See State v. O’Neil, 65 Conn. App. 145, 159, 782 A.2d 209 (2001), aff'd, 262 Conn. 295, 811 A.2d 1288 (2003).

We must determine whether State v. Davis, supra, 261 Conn. 553, controls the resolution of the defendant’s claim of improper jury instructions. If Davis is found to be applicable here, then the defendant would not have been entitled to a self-defense instruction, and, therefore, there would be no impropriety in the giving of a favorable charge to him to which he was not entitled. On the other hand, if Davis is not applicable to the facts of this case, then we must address the defendant’s claim. We conclude that Danis is applicable and defeats the defendant’s first claim.

Our Supreme Court stated that “when a defendant has been charged only with violations of § 53a-167c or § 53a-167a, he is not entitled to an instruction on self-defense.” State v. Davis, supra, 261 Conn. 573. The proper defense in cases in which the defendant claims that an officer used unreasonable and unnecessary physical force is that the officer was not acting in the performance of his duty. Id., 574. The rationale behind our Supreme Court’s determination in Davis was based on the requirement that the state must prove beyond a reasonable doubt that the officer was acting in the performance of his duties as an element of § 53a-167c and the fact that excessive or unreasonable physical force by the officer would place his actions outside the performance of his duties. Id., 573-74. The defendant would be entitled to an acquittal if the state failed to prove that the use of force was within the performance of the officer’s duties. The defendant did not interpose the Davis defense that the correction officer was not acting in the performance of his duties.

The defendant, however, argues that the holding in Davis is limited to situations where a defendant is charged with a violation of § 53a-167a or § 53a-167c by means of using physical force to interfere with or to assault a peace officer while effectuating an arrest. The defendant contends that our Supreme Court’s decision in Davis was fact bound and based solely on the fact that the peace officers were attempting to arrest the defendant in that case and the existence of General Statutes § 53a-23, which prohibits the use of physical force to resist an arrest by a peace officer. According to the defendant, the factual distinctions between Davis and the present case are that here neither Sampson nor Marangone was a peace officer, neither Sampson nor Marangone was attempting to arrest either Fraizer or the defendant, and § 53a-23 was not applicable because of the fact that neither Sampson nor Marangone was a peace officer attempting to effectuate an arrest. We have carefully analyzed the Davis case and conclude that its holding cannot be so limited.

Our Supreme Court expressly stated that “a defendant charged with violating § 53a-167a (a) or § 53a-167c (a) is not entitled to a self-defense instruction.” State v. Davis, supra, 261 Conn. 571. Because § 53a-167a (a) refers explicitly to both peace officers and firefighters and § 53a-167c (a) refers to several classifications of professions in addition to peace officers and firefighters, we conclude that Davis’ broad language cannot be limited to its facts. If we were to agree with the defendant that Davis is limited to situations where a defendant uses physical force to resist an arrest by a peace officer due to the existence of § 53a-23, we would have to ignore the indisputable fact that neither firefighters nor the numerous professions defined in § 53a-167c (a) have the power to make an arrest. Our Supreme Court’s decision plainly encompassed all statutory classifications of professions when it stated that a defendant is not entitled to a self-defense instruction when charged with violating § 53a-167aor § 53a~167c. Because correction officers are included in the classifications of people who are potential victims in § 53a-167c, the defendant was not entitled to a self-defense instruction.

The prohibition in § 53a-23 on the use of physical force to resist a legal or illegal arrest has no statutory counteipart affecting correction officers in the performance of their duties. There is, however, a statute that expressly allows a correction officer to use reasonable physical force to maintain order and discipline in a correctional institution. General Statutes § 53a-18 (2) provides that “[a]n authorized official of a correctional institution or facility may, in order to maintain order and discipline, use such physical force as is reasonable and authorized by the rules and regulations of the Department of Correction.” A correction officer, therefore, is statutorily authorized to use reasonable physical force in the performance of his duties. Clearly, if the defendant claimed that the force used was excessive or unnecessary, the proper defense in this case would have been that Marangone’s use of physical force on the defendant was not in the performance of his duties.

The defendant claims on appeal that the court instructed the jury on self-defense improperly. First, the defendant argues that the court issued an improper instruction when it charged the jury that in determining whether the defendant’s use of force against Marangone was in self-defense, it might consider the fact that the attack happened in a correctional institution and that it might consider the evidence of some of the rules of that institution. Second, the defendant argues that the instructions concerning § 53a-18 (2) were improper because they could mislead the jury to conclude that the defendant could never use physical force to defend himself when a correction officer used physical force to maintain order and discipline, and, also that the defendant must be the initial aggressor. The defendant, however, was not entitled to a self-defense instruction. See State v. Davis, supra, 261 Conn. 571. The proper defense, as stated previously, was that Marangone was not acting within the performance of his duties when he used physical force on the defendant.

The court correctly instructed the jury on the elements of § 53a-167c, including that the state must prove beyond a reasonable doubt that Marangone was acting within the performance of his duties when the defendant used physical force on him. The court further instructed the jury that a correction officer is permitted to use reasonable physical force in the performance of his duties to maintain order and discipline in a correctional institution pursuant to § 53a-18 (2). Because the court properly instructed the jury on the elements of § 53a-167c and because the defendant was not entitled to the self-defense instruction that he received, we conclude that the effect of the jury instructions was not harmful to him. The charge was presented to the jury in such a way that no injustice was done to the defendant. Furthermore, we conclude that the jury was not misled.

II

The defendant’s second claim is that the court abused its discretion in admitting into evidence the rules of conduct of the John R. Manson Youth Institution. Specifically, the defendant argues that the rale that an inmate cannot have physical contact with a correction officer precluded his defense of self-defense.

The following additional facts are necessary for the resolution of the defendant’s claim. On direct examination by the state, Captain Luis Irizarry of the department of correction was asked, “Now, can you tell the jury, please, when, back in 1994 now I am talking about, when an inmate enters the facility, Manson Youth, what is the nature of the indoctrination that they are given?” The defendant objected to that question on the ground of relevance. An offer of proof was made by the state outside the presence of the jury. The court ruled that it would “permit inquiry through [Irizarry], assuming he is qualified about the rules pertaining to the use of force, because I think that goes to the reasonable use of force and whether the officers are within the scope of their duties. And I think the law does dovetail into the institutions as far as that is concerned. But the pending question is about a broad question about indoctrination of inmates. I don’t know what that means or where that is going, but the breadth of the question would seem to cover many, many areas that are irrelevant here. This is a discrete incident we have talked about and the officers have described what happened, so in terms of the use of force, for example, this absolute prohibition to touch a correction officer, I think that is a fair question you can ask, but other than the use of force on either side, I will not permit further questions. The defense and the state can have exceptions to my ruling because it limits what both sides can ask in that regard.”

Irizarry then testified that each inmate receives an inmate handbook and attends an orientation session when he arrives at the institution. Both the handbook and the orientation, he stated, informed the inmates, including the defendant, that physical contact with a correction officer was prohibited. On cross-examination, the defendant attempted to introduce the entire inmate handbook into evidence. The court, however, limited the portions of the handbook that would be admitted.

The defendant argues on appeal that the evidence of the rules of the prison was irrelevant on the issue of whether the defendant’s actions were justified and that the introduction of the rules effectively prohibited his claim of self-defense. At trial, however, the defendant argued to the court that the rules of the institution were irrelevant to the issues presented in a criminal assault prosecution, stating that “[t]his is not a disciplinary hearing within an institution, so whether the conduct of an inmate or an officer did or didn’t comply with the rules of the institution is irrelevant.” Our review is limited to the objection and argument made at trial. “Appellate review of evidentiary rulings is ordinarily limited to the specific legal issue raised by the objection of trial counsel. ... In other words, [o]nce an objection has been made and the grounds stated, a party is normally limited on appeal to raising the same objection on the same basis as stated at trial.” (Internal quotation marks omitted.) State v. McHolland, 71 Conn. App. 99, 109, 800 A.2d 667 (2002). We therefore review the defendant’s claim on the basis of the relevance of the evidence to the issues presented at trial.

We begin by setting forth our standard of review. “[0]ur standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. ... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling. ... It is a fundamental rule of appellate review of evidentiary rulings that if error is not of constitutional dimensions, an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him.” (Internal quotation marks omitted.) State v. Henry, 72 Conn. App. 640, 662, 805 A.2d 823, cert./ denied, 262 Conn. 917, 811 A.2d 1293 (2002).

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . [E]vidence need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree. ... It is not logical relevance alone, however, that secures the admission of evidence. Logically relevant evidence must also be legally relevant . . . that is, not subject to exclusion for any one of the following prejudicial effects: (1) where the facts offered may unduly arouse the jury’s emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counterproof will consume an undue amount of time, and (4) where the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it.” (Citations omitted; internal quotation marks omitted.) State v. Rogelstad, 73 Conn. App. 17, 22-23, 806 A.2d 1089 (2002).

Here, the court overruled the defendant’s objection concluding that the rules of the prison were relevant to the issues of the reasonable use of force by the defendant in the prison and whether the correction officers were acting within the scope of their duties when they used force against the defendant. We agree with the court that this evidence was relevant. Section 53a-167c requires that a correction officer act within the performance of his duties, and, therefore, the rules of the institution are relevant to establishing this element. “The phrase in the performance of his official duties means that the [correction] officer is simply acting within the scope of what [he] is employed to do.” (Internal quotation marks omitted.) State v. Torwich, 38 Conn. App. 306, 316, 661 A.2d 113, cert. denied, 235 Conn. 905, 665 A.2d 906 (1995). Section 53a-18 (2) provides that a correction officer may use reasonable physical force to maintain order and discipline in a correctional institution. Therefore, evidence of the rules of the institution, which Marangone was to enforce through the use of reasonable physical force if necessary, was relevant to the issue of whether he was acting in the performance of his duties when he became involved in the altercation between Sampson, Fraizer and the defendant and whether the use of physical force by Marangone on the defendant was within the performance of his duties.

The challenged evidence is also legally relevant. There is no indication that the evidence aroused the emotions of the jury, created an issue collateral to the crimes charged that would distract the jury, required a large amount of time to establish, or unfairly surprised the defendant. Accordingly, we conclude that the court did not abuse its discretion in admitting the evidence pertaining to the rules of the institution.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was charged with two counts of assault of an employee of the department of correction in violation of § 53a-167c. The difference in the two counts was the identity of the victim. In count one, the victim was correction officer Patrick Marangone, while in count two, the victim was correction officer Patrick Sampson. The defendant was convicted of a violation of § 53a-167c only in count one for assaulting Marangone.

       General Statutes § 53a-19 (a) provides, in relevant part, that “a person is justified in using reasonable physical force upon another person to defend himself. . . from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose . . .

       General Statutes (Rev. to 1993) § 53a-167c, as amended by Public Acts 1993, No. 93-246, § 1, and Public Acts 1994, No. 94-62, provides in relevant part: “A person is guilty of assault of . . . [an] employee of the department of correction . . . when, with intent to prevent a reasonably identifiable . . . employee of the department of correction . . . from performing his duty, and while such . . . employee ... is acting in the performance of his duties, (1) he causes physical injury to such . . . employee . . . .”

       General Statutes § 53a-23 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.”

       General Statutes (Rev. to 1993) § 53a-3 (9), as amended by Public Acts, Spec. Sess., May25,1994, No. 94-1, § 98, defines “peace officer” as “amember of the division of state police within the department of public safety or an organized local police department, a chief inspector or inspector in the division of criminal justice, a sheriff, deputy sheriff or special deputy sheriff, a conservation officer or special conservation officer, as defined in section 26-5, a constable who performs criminal law enforcement duties, a special policeman appointed under section 29-18,29-18a or 29-19, an adult probation officer, appointed under section 54-104, an official of the department of correction authorized by the commissioner of correction to make arrests in a correctional institution or facility, any investigator in the investigations unit of the workers’ compensation commission or any special agent of the federal government authorized to enforce the provisions of Title 21 of the United States Code.”
      The only definition Sampson and Marangone possibly fit into is “an official of the department of correction authorized by the commissioner of correction to make arrests in a correctional institution or facility . . . .” Although both Sampson and Marangone were employed as correction officers, there is no evidence in the record that the commissioner of correction authorized either of them to make arrests inside a correctional institution or facility. Furthermore, there exists a distinction between a peace officer and a correction officer as seen by the fact that General Statutes § 53a-167c (a) separately lists peace officer and employee of the department of correction.

       The facts reveal that Sampson was attempting only to issue an informal disposition to Fraizer, which did not involve the correction officer’s taking custody of an inmate to charge him with a violation of a crime as set forth in the general statutes, but rather resulted in the taking away of certain privileges of an inmate for violating the rules of the correctional institution. In addition, the code of penal discipline in effect at the John R. Manson Youth Institution in 1994 drew a distinction between a violation of the Connecticut Penal Code and a violation of the rules of the institution as seen by the mandate that the state police become involved in investigating any serious criminal offenses.

       Included in General Statutes § 53a-167c (a) are peace officers, firefighters, employees of emergency medical services organizations, emergency room physicians or nurses, employees of the department of correction, employees of the board of parole and probation officers.

       The state claims that review of the defendant’s claim is procedurally barred. First, the state argues that the defendant waived any claim because he cross-examined Captain Luis Irizarry of the department of correction concerning the contested evidence and admitted into evidence portions of the inmate handbook that discussed the evidence. Second, the state argues that the defendant induced the error by offering into evidence portions of the inmate handbook. Third, the state asserts that because the defendant’s position concerning the evidence at trial is contrary to his position on appeal, the evidentiary claim is unpreserved. Finally, due to these procedural defects, the state contends that the defendant failed to ask for Golding or plain error review. We conclude, however, that this claim was preserved by the exception given to the defendant by the court in its ruling that Irizarry could testily about the rule against physical contact with the correction officers and the defendant’s knowledge of these rules.

       Rule 9.5, paragraph 10 (D), of the inmate handbook, which was introduced into evidence, designated assault on a department of correction employee as a punishable offense. Specifically, this rule prohibited “[ijntentionally striking or attacking a Department of Correction Employee with or without the use of an object or substance or behaving in such a reckless manner that one’s actions causes a strike of a Department of Correction Employee.”


author: STOUGHTON, J.

text:
    STATE OF CONNECTICUT v. JOHN SMALL
    (AC 22939)
    Schaller, Flynn and Stoughton, Js.

      Argued May 1
    officially released July 15, 2003

      Earl I. Williams, special public defender, with whom, on the brief, was Rebecca L. Johnson, for the appellant (defendant).

      Julia K. Conlin, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearinglon, state’s attorney, Robin S. Schwartz, former assistant state’s attorney, and James R. Dinnan, senior assistant state’s attorney, for the appellee (state).
   Opinion

STOUGHTON, J.

The defendant, John Small, appeals from the judgments of conviction, rendered after he admitted to three counts of violation of probation in violation of General Statutes § 53a-32 and pleaded guilty to one count of breach of the peace in violation of General Statutes (Rev. to 2001) § 53a-181. On appeal, the defendant claims that the trial court (1) failed to canvass him properly concerning his guilty plea on the charge of breach of the peace, and (2) violated his due process rights when it denied his motion to withdraw his admissions and his guilty plea, and imposed a greater sentence than he had bargained for in the plea agreement. We agree in part with the defendant. We conclude that the court’s canvass on the charge of breach of the peace was insufficient. We further conclude that there was no evidentiary basis for any finding that the defendant’s Garvin agreement had been breached. Accordingly, we reverse the judgments of the trial court and remand the cases for further proceedings.

The following facts and procedural history are undisputed. On January 23, 2002, the defendant admitted to violation of the probation imposed as a part of the sentences for three separate criminal offenses for which the total effective term of the suspended sentences was seven years and eleven months. The prosecutor described the violations of probation, most of which arose out of violent behavior, and recommended that the defendant serve two years and six months of the suspended sentences. The prosecutor also informed the court that he would not object to a request by defense counsel that the case be continued for two weeks, but requested that the court issue specific orders that the defendant have absolutely no contact with the victims and that it conduct a Garvin canvass.

After the court had made the necessary inquiries and determined that the admissions by the defendant had been made knowingly and voluntarily, the court turned to the plea agreement itself. It continued the matter for two weeks and informed the defendant that it would impose a sentence of two years and six months, and that if it decided to impose a greater sentence, it would allow him to withdraw his plea, except that if he failed to appear or if he was arrested again, the court would not be bound by the agreement and would impose a sentence of four years and eleven months. The defendant agreed to those conditions. The court then informed the defendant that there was to be no contact between him and the victims. The defendant stated that he did not agree with many of the allegations being made against him, but that he understood that if he became involved again with the people making those allegations, the plea would be withdrawn. The court disabused the defendant of that notion at once and informed him that if he became involved with them again, he would be incarcerated for four years and eleven months. The defendant agreed to that condition, but when he expressed concern that there might be false allegations made against him, the court replied that it would have to find probable cause. After further colloquy, the defendant agreed that he did not want to have a hearing on the violation of probation charges and that he would have no contact with the victims. The court again stressed that there was to be no contact, and informed the defendant that if it found out that there was contact and believed that there was probable cause for an arrest, it would be able to sentence him to as much as four years and eleven months. The defendant stated that he agreed and understood, and defense counsel acknowledged his belief that the defendant had agreed pursuant to the canvass under State v. Garvin, 242 Conn. 296, 299-302, 699 A.2d 921 (1997).

The following day, January 24, 2002, the defendant was present in court, and the prosecutor informed the court that the witnesses with whom the defendant had been ordered to have no contact had been in court the day before and that when they left the court, the defendant had had contact with them. The prosecutor referred to a police report and informed the court that the witnesses had given statements to the police as to what was said, and that two judicial marshals who had escorted the witnesses out to a car thought that the defendant’s friends were trying to move him away from the car. The defendant stated that he was not near the car and that his friends were moving him away from the courthouse. The prosecutor requested that the defendant be sentenced to serve the full amount of time that he owed.

Defense counsel thereupon sought to withdraw the admissions of probation violation and the guilty plea because an agreement pursuant to Garvin should not be enlarged to cover anything beyond failures to appear and because he believed that sentencing would be based on the new arrest. He also stated that the defendant had witnesses who would contradict what appeared in the reports and that he would like an opportunity to litigate the issue.

The court responded that it had canvassed the defendant thoroughly and had informed him that it would allow him to withdraw his pleas if it intended to impose a sentence of more than two years and six months unless he was arrested again or had any contact with the victims. The court stated that it was looking at the police report, which indicated that there were affidavits from two victims and that there was contact with them after they had left the courtroom. The court deemed the report rehable because two judicial marshals had observed the defendant in close proximity to the car, presumably the car to which the witnesses or victims were being escorted. The court decided that there had been contact in violation of its order, which it expressed as an order not to initiate contact, denied the motion and imposed a sentence of four years and eleven months pursuant to the agreement.

The defendant then uttered a scatological remark, a word seldom heard in the courtroom, but which is, we believe, not uncommon on the street. That quite properly provoked the court to warn the defendant that he would be held in contempt in the absence of an apology. After the defendant apologized, he was removed from the courtroom. The court then extended the defendant the right of allocution, which understandably had been overlooked, but the offer was declined, apparently on the advice of counsel. Under the circumstances, the defendant never gave his version of the events from the day before.

I

The defendant first claims that the court violated his due process rights because the court failed to canvass him concerning the guilty plea to the charge of breach of the peace. The state agrees that the defendant was not properly canvassed. Because the record does not disclose a waiver of the three core constitutional rights guaranteed by the federal constitution, the defendant’s guilty plea to that charge must be vacated. See, e.g., State v. Domian, 235 Conn. 679, 686-87, 668 A.2d 1333 (1996).

II

Next, the defendant claims that his rights to due process were violated when the court denied his motion to withdraw his admissions and his guilty plea, and imposed a sentence greater than that bargained for in the plea agreement. The defendant sets forth three arguments in support of his claim, which we will set out more fully. In addition, the defendant argues that the court improperly found that he had violated the terms of his Garvin agreement. The principal issue in this appeal, however, depends on whether the court properly imposed a sentence greater than that bargained for under the principle enunciated in State v. Garvin, supra, 242 Conn. 296.

The state asserts in its brief that the sole basis for the defendant’s motion to withdraw his admissions was that Garvin agreements should not be enlarged to cover anything more than failures to appear and, therefore, that his claims on appeal were not preserved at trial and should not be reviewed.

A

First, the defendant argues that under a Garvin plea agreement, a court may not impose any condition on the sentencing agreement except a failure to appear for sentencing. We do not agree.

“The validity of plea bargains depends on contract principles.” Id., 314. In Garvin, the trial court had warned the defendant at the time of his guilty pleas that if he failed to appear for sentencing, the court would not be bound by the agreed on sentence. Id., 300. When the defendant failed to appear and subsequently was apprehended, the court refused to allow him to withdraw his pleas and imposed a sentence greater than that to which he had agreed. Id., 300-301. The condition of the plea agreement, which the defendant had failed to satisfy, was that he appear for sentencing. Id. Garvin, however, does not suggest that a failure to appear is the only condition that may be imposed on the agreement. Id., 314.

In State v. Trotman, 68 Conn. App. 437, 440, 791 A.2d 700 (2002), this court, following Garvin, upheld the finding of the trial court that the defendant had breached her plea agreement when she produced urine samples that tested positive for opiates. Because the defendant had been unambiguously warned by the court and was aware of and understood her obligation not to produce positive urine samples, the court properly imposed a sentence of incarceration instead of the suspended sentence to which she had agreed. Id., 445. Consequently, we see no reason why the failure to fulfill any condition to which a defendant agrees should not have the same result, at least as long as it is within the defendant’s control to fulfill the condition. Id., 444; see also State v. Garvin, supra, 242 Conn. 314.

B

Next, the defendant argues that the court failed to articulate and to clarify the circumstances under which he would forfeit his right to withdraw his admissions.

We acknowledge that the court must clarify the terms of the plea agreement. State v. Childree, 189 Conn. 114, 454 A.2d 1274 (1983). The circumstances under which the defendant would have the right to withdraw his admissions and the circumstance that might give rise to the imposition of the greater sentence were made abundantly clear and were clearly understood by the defendant, as is made manifest by the transcript references we have set forth. See footnotes 2 through 7.

C

Last, the defendant claims that his due process rights were violated because the court found, on the basis of the evidence, that he had violated the terms of his Garvin agreement by having contact with the victims. The claim that the court improperly found, on the basis of the evidence, that the defendant had violated the terms of his agreement is a sufficiency of the evidence claim. Furthermore, we deem that claim properly preserved on appeal because the defendant informed the trial court, prior to sentencing, that he wanted to withdraw his admissions because he believed that his sentence would be based on the new arrest and that he had witnesses who would contradict what was in the police report. The standard of review is whether, on the basis of the evidence, the court’s finding of a breach of the agreement was clearly erroneous. State v. Trotman, supra, 68 Conn. App. 441.

After the defendant had been presented for arraignment on January 24, 2002, on a charge resulting from the episode from the previous day, the prosecutor described briefly what appeared in the police report and requested that the defendant be sentenced to serve the full amount of time that he owed. Defense counsel then requested that the admissions and the plea be withdrawn, as previously discussed, stating that he had witnesses to contradict what was in the reports and statements, and that he wanted to litigate the matter. The court discussed the plea agreement that had been made and then stated that it was looking at the police report, which indicated that the defendant had had contact with the victims, and that the report was rehable because two judicial marshals had observed the defendant in close proximity to the car to which the victims were being escorted at the time. The court found that the defendant had contact with the victims in violation of its order, denied the motion and imposed sentence.

There was no evidence presented to the court from which it could have made a finding of a violation of its order. At the most, the court had a police report that was never made an exhibit and which is not a part of the record. Whatever the report contained, the defendant stated that he had witnesses to contradict its content. The prosecutor conceded at oral argument that the court had to make a finding that the Garvin agreement had been breached before it could impose the greater sentence. There was nothing presented to the court, as far as the record reveals, from which the court could have found that the defendant had initiated contact. Because there was no evidentiary basis for any finding, the sentence imposed on the charges of violation of probation must be vacated.

The judgments are reversed and the cases are remanded with direction to vacate the defendant’s guilty plea to the charge of breach of the peace and the sentence imposed for violation of probation and for an evidentiary hearing to determine whether the defendant breached the plea agreement.

In this opinion the other judges concurred.

       A Garvin agreement is a conditional plea agreement that has two possible binding outcomes, one that results from the defendant’s compliance with the conditions of the plea agreement and one that is triggered by his violation of a condition of the agreement. See State v. Garvin, 242 Conn. 296, 299-302, 699 A.2d 921 (1997). The term Garvin canvass is used to designate a canvass of a conditional plea agreement made pursuant to Garvin.

       “The Court: Two and one-half years to serve. Sir, I’m going to give you two weeks to turn yourself in, February 6 [2002]. Now, sir, my promise to you is that on February 6, I’m going to impose a sentence of two and one-half years to serve. That’s my promise I’m making to you. If I decide to give you more, I’ll allow you to withdraw your plea and go back to a hearing. If, however, you fail to appear, you pick up any new files or any new arrests, I will not be bound by that agreement and I will give you five years in jail— was it five years?
      “[Prosecutor]: It would be four years and eleven months.
      “The Court: Four years and nine months.
      “[Prosecutor]: Four years and eleven months.
      “The Court: — four years and eleven months in jail. Do you understand that and do you agree to that?
      “[Defendant]: Yes. I agree to that. . . .”

       “The Court: All right. There’s also to be no contact between you and the victims. No contact means no contact, not by phones, beepers or third parties. All right. And what do you wish to say, sir?

        “[Defendant]: Okay. I do disagree with a lot of things that are going on that people are saying that I did or said. Okay. And, I hear you tell me that if I get involved with them again or whatever, you’re going to withdraw my plea.
      “The Court: No, you get involved with them again [and] you’re going to jail for four years [and] eleven months.”

         “[Defendant]: Four years [and] seven months, whatever—
      “The Court: Eleven months.
      “[Defendant]:- — eleven months, whatever you suggest. Okay. Well, I feel as though like this, a lot of the stuff that’s being said in these things is a lie. So, they can call here and say the same lie, then somebody come get me for—
      “The Court: It has to be — I have to find probable cause . . . .”

       “The Court: All right. No contact means no contact, not by phones, beepers or third parties. If I find out you’re having contact and I feel there’s probable cause for the arrest, I can give you up — I will be able to give you up to four years and eleven months in jail. Do you agree to that?
      “[Defendant]: Yes, I did.
      “The Court: All right. And you understand that. Counsel, is it your belief that your client is making a full, voluntary waiver of his rights and full agreement, [a knowledgeable] agreement with regard to the canvass [pursuant to State v. Garvin, supra, 242 Conn. 299-302]?
      “[Defense Counsel]: Yes, it is, Your Honor.
      “The Court: All right, sir. Good luck. Two weeks.”

       “The Court: What was he observed doing?
      “[Prosecutor]: He was observed what the [marshal] — when [judicial marshals] walked witnesses out to the car and were leaving, the defendant was on the comer, the witness’ car pulled up — the defendant was observed by the two marshals; they couldn’t hear anything but—
      “[Defendant]: I was near no car, man.
      “[Prosecutor]: — head motions and that his friends were trying to stop him from having any — in their opinion moving him a little away from the car.
      “The Court: He was moving — was he approaching the vehicle is that—
      “[Prosecutor]: The friends were trying to move him away. I don’t know if—
      “[Defendant]: From the courthouse.
      “[Prosecutor]: — he was actually approaching the vehicle.
      “The Court: Be [quiet].
      “[Prosecutor]: The victims indicated that he had said things to them of a threatening nature. The state feels it’s extremely serious conduct, and the defendant should be sentenced on the violation of probation to the full time owed.”

       “The Court: I’m looking at the police report that indicated there were two sworn affidavits by two of the victims, that there was subsequent contact, no more than fifteen or twenty minutes or five minutes after they left the courtroom. In my view, this is reliable insofar as the [judicial marshals] indicated that they observed this defendant in close vicinity to your client’s vehicle, and they indicated that there was some type of action, although they could not exactly hear what was going on.
      “So, at the very least, I feel that the — there was contact, a violation of the court order. There was an order not to initiate contact. I feel that the information garnered by the — or from the victims and the contact corroborated by the [judicial marshals] is rehable. In light of those factors, I’m going not — deny your motion to withdraw your plea and sentence the defendant today, four years, eleven months pursuant to the agreement. Good luck.”