text:
    STATE OF CONNECTICUT v. SAMUEL DAVIS
    (AC 21965)
    Foti, Flynn and Daly, Js.

      Argued February 15
    officially released May 14, 2002

      Alice Osedach-Powers, assistant public defender, for the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Dennis O’Connor, senior assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The defendant, Samuel Davis, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c, attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-134 (a) (2), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (2) and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35. On appeal, the defendant claims that the court improperly (1) denied his motion to suppress oral and written statements made to the police, (2) denied his motion to suppress the identification testimony of two witnesses, (3) failed to submit to the juiy the findings required to enhance his sentences pursuant to General Statutes § 53-202k and imposed three separate enhancements under the statute, (4) violated his due process rights when it instructed the jurors to consider each other’s feelings while deliberating and (5) gave a “Chip Smith” instruction. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In the early morning hours of August 17, 1997, the defendant was a passenger in a vehicle in Hartford with two other individuals. The three men decided to rob a drug dealer and the defendant drove one of the occupants to his car so that he could retrieve his gun. The three men drove around Hartford but could not find a drug dealer to rob. At one point in their travels, the men unsuccessfully attempted to rob a man at a pay telephone near Prospect Avenue. Eventually, the defendant and one of the other men exited the car and came upon the victim, James Boland, who had just been dropped off in front of his house. Boland, a member of the neighborhood block watch program, was armed and proficient in the use of firearms. As the defendant and one of the other men approached Boland, a gunfight ensued in which Boland returned fire. Boland and the defendant both suffered gunshot wounds.

A neighbor, Lillian Ferdinand, heard the gunshots from her second floor apartment. She saw a motorcycle with two men on it stop in the vicinity of Boland’s house. She heard someone say “get lost” or “get the ‘f out of here,” and the men on the motorcycle rode away. From a different vantage point, she saw Boland crouched and leaning against a fence. He was holding his chest and said to her, “Lily, I’ve been shot . . . call the police.” She called the police, went downstairs and saw Boland lose consciousness and fall to the ground.

Another neighbor, Nicholas Couloute, heard the gunshots from his third floor window. He saw the defendant lying in the driveway apron next to Boland’s home. Couloute went outside and approached the defendant. As Couloute approached, the defendant propped up on his elbow, pointed a gun at him and said “get the flout of here.” Couloute retreated to his house and saw a motorcycle with two men on it approach the defendant. The defendant pointed a gun at the driver and said “get the f— out of here.” Couloute returned to his house and both he and his wife saw that the defendant was wounded in the leg. Both Couloutes watched as a red, four door Buick pulled up to the defendant. Two individuals helped the defendant into the backseat and drove away.

Hartford police arrived at the scene and Boland was pronounced dead at 1:32 a.m. from a gunshot wound to the chest. Hartford police informed other local police departments that a suspect in a homicide had sustained a gunshot injury and had left the scene in a red vehicle. At about 4 a.m. Middletown police informed Hartford police that an individual had arrived at Middlesex Hospital with gunshot wounds to his leg and arm. The defendant was subsequently transported to Hartford Hospital by the Life Star helicopter.

Nicolas Couloute and Thomas Staunton, the passenger on the motorcycle, were taken to Hartford Hospital to identify the defendant. Both Couloute and Staunton positively identified the defendant as the man they saw lying in the driveway area. Couloute also identified the red Buick, owned by the defendant’s brother, as the vehicle that drove the defendant from the scene of the shooting. Based on the hospital identification, an arrest warrant was issued for the defendant.

The defendant was admitted to Hartford Hospital after undergoing surgery for bullet wounds to his left leg and arm. Two uniformed Hartford police officers guarded the defendant’s hospital room and he was restrained to his bed by a leg shackle. After his surgery, the defendant requested to speak with the officers who had applied for the warrant for his arrest. Two detectives interviewed the defendant and he gave an oral statement inculpating himself in the victim’s death. The defendant was discharged from the hospital and transported to the Hartford police station and placed under arrest. While at the police station, the defendant also gave a written statement inculpating himself.

At trial, Benjamin Brown, one of the occupants of the vehicle on the day of the murder, testified for the state. He confirmed that the defendant and the other individual left the vehicle and confronted the victim, and that the defendant was wounded in the confrontation. Brown further testified that when he helped rescue the defendant from the victim’s driveway, the defendant stated that he thought he shot the victim.

Following a jury trial, the defendant was found guilty of felony murder, attempt to commit robbery in the first degree, conspiracy to commit robbery in the first degree and carrying a pistol or revolver without a permit. The defendant was sentenced to a total effective term of 100 years in the custody of the commissioner of correction. Pursuant to § 53-202k, the court also sentenced the defendant to five additional years imprisonment, consecutive on each of the charges of felony murder, attempt to commit robbery in the first degree and conspiracy to commit robbery in the first degree for a total enhancement of fifteen years. This appeal followed.

I

The defendant first claims that the court improperly denied his motion to suppress his oral and written statements to the police. Specifically, he claims that because of his physical and mental condition, his statements were involuntary in violation of the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut. We do not agree.

The following additional facts are relevant to our resolution of this claim. After his surgery, the defendant told the Hartford police officer guarding his door that he wanted to speak with the officers who had obtained the warrant for his arrest. The police officer called the Hartford police station twice to inform detectives that the defendant wanted to speak with them. During the second call, the defendant got on the phone and Detective James Rovella asked him if he felt well enough to talk to the police. The defendant responded that although he thought he was under medicated, he wanted Rovella to come to the hospital to speak with him.

When Rovella and another detective arrived at the hospital, they read the defendant his rights, provided him with a waiver of rights form and asked the defendant to read it aloud. The defendant initialed each section of the waiver form and signed on the bottom. The defendant also stated that he understood his rights because he had been arrested before. At the defendant’s request the detectives loosened his leg shackle to make him more comfortable. After signing the waiver form, the defendant asked, “How would somebody catch a warrant for murder if he was shot in Middletown, Connecticut?” Rovella told the defendant that he would terminate the interview if that is all the defendant wanted to ask him. The defendant indicated that he wanted to continue and proceeded to give his statement to the detectives.

“We review a trial court’s findings and conclusions regarding a motion to suppress using a well established standard. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . . ” (Internal quotation marks omitted.) State v. Miller, 67 Conn. App. 544, 547, 787 A.2d 639, cert. denied, 259 Conn. 923, 792 A.2d 855 (2002).

“Because the defendant was in custody and was properly advised of his Miranda rights, our resolution of his claim requires us to determine whether he made a valid waiver of his rights. Pursuant to the fifth and fourteenth amendments to the United States constitution, a statement made by a defendant during custodial interrogation is admissible only upon proof that he . . . waived his rights [under Miranda] .... To be valid, a waiver must be voluntary, knowing and intelligent. . . . The state has the burden of proving by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently waived his Miranda rights. . . . Whether a purported waiver satisfies those requirements is a question of fact that depends on the circumstances of the particular case. . . . Although the issue is therefore ultimately factual, our usual deference to fact-finding by the trial court is qualified, on questions of this nature, by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence. . . .

“Whether the defendant has knowingly and intelligently waived his rights under Miranda depends in part on the competency of the defendant, or, in other words, on his ability to understand and act upon his constitutional rights. . . . Factors which may be considered by the trial court in determining whether an individual had the capacity to understand the warnings include the defendant’s experience with the police and familiarity with the warnings . . . his level of intelligence, including his IQ ... his age ... his level of education . . . his vocabulary and ability to read and write in the language in which the warnings were given . . . intoxication . . . his emotional state . . . and the existence of any mental disease, disorder or retardation. . . . Furthermore, [a] defendant’s express written and oral waiver is strong proof that the waiver is valid.” (Internal quotation marks omitted.) State v. Williams, 65 Conn. App. 59, 72-73, 782 A.2d 149, cert. denied, 258 Conn. 923, 782 A.2d 1251 (2001).

In the present case, the court took into consideration that the defendant prompted two calls to the police to request to speak with them. With regard to the medicated state that the defendant was in, the court stated: “[I]t does not, in and of itself, render a subsequent admission inadmissible. It may be one factor in determining the voluntariness. ... It appears he was not in pain. There was no slurring of speech. He seemed to be alert. No drowsiness. He was breathing normally. Defendant appeared to be extremely rational. Showed no confusion. Appeared to understand all the detective’s questions and the procedure that was going on.” The court further found that there was no evidence of police coercion. The detectives made no threats or promises and the defendant was not deprived of any personal comforts. The court ultimately found that “[t]he state has demonstrated that . . . the defendant understood his rights and the waiver of those rights. Defendant understood and voluntarily waived his Miranda rights.”

The record discloses no evidence of threats, promises or coercive or deceptive measures employed by the police in an attempt to elicit a confession from the defendant. We see no coercion in their terminating an interview that the defendant requested if they have no interest in taking time with particular questions that the defendant posed. See State v. Jones, 205 Conn. 638, 641-57, 534 A.2d 1199 (1987). Furthermore, the defendant initiated the interview with the detectives and seemed coherent and lucid despite his medications. In fact, the defendant made a series of statements in which the common thread was his desire to shift responsibility to others. These statements were a positive indication of the defendant’s coherence. Our scrupulous review of the record leads us to conclude, as did the court, that the defendant’s statements were voluntarily made, and that he voluntarily, knowingly and intelligently waived his Miranda rights.

The defendant further claims that a written statement that he gave at the police station was tainted by his earlier oral statement given to the police at the hospital in violation of his Miranda rights. Two days after the incident, the defendant was discharged from the hospital and taken to the Hartford police station under the warrant that had been issued. The defendant filled out another waiver of rights form and signed it. Two detectives took a written statement from the defendant that essentially documented his oral statement given at the hospital. Under the circumstances, we conclude that the defendant was properly advised of his rights and that he made a knowing and voluntary waiver of those rights. Furthermore, because we already determined that the defendant’s oral statement given at the hospital did not violate his Miranda rights, it did not taint his subsequent statement at the police station.

II

The defendant next claims that the court improperly denied his motion to suppress the identification testimony of Couloute and Staunton. He claims that the identifications were so impermissibly suggestive and unreliable that they violated his constitutional rights under the fifth and fourteenth amendments to the United States constitution and article first, §§ 8 and 9, of the constitution of Connecticut. We do not agree.

The following additional facts are relevant to our resolution of this claim. Detective Rovella drove Couloute and Staunton to the hospital to identify the defendant. At the hospital, Rovella took each witness in separately to look at the defendant. The defendant was lying in a bed with a sheet pulled up to his neck so that the witnesses could not see the nature and location of his injuries. Both Couloute and Staunton identified the defendant as the man they saw lying on the ground at the scene of the shooting. At the suppression hearing, both men testified that, despite the sheet that was covering the defendant, they could see that he had an injury to his leg. Rovella testified that he did not make up an array of photographs because he believed that it would have taken too long to obtain a photograph of the defendant.

“When a trial corut denies a motion to suppress a pretrial identification, the standard of review is well established. Upon review of a trial court’s denial of a motion to suppress, [t]he court’s conclusions will not be disturbed unless they are legally and logically inconsistent with the facts. . . . [W]e will reverse the trial court’s ruling [on evidence] only where there is abuse of discretion or where an injustice has occurred . . . and we will indulge in every reasonable presumption in favor of the trial court’s ruling. . . . Because the inquiry into whether evidence of pretrial identification should be suppressed contemplates a series of fact-bound determinations, which a trial court is far better equipped than this court to make, we will not disturb the findings of the trial court as to subordinate facts unless the record reveals clear and manifest error. . . . Because the issue of the reliability of an identification involves the constitutional rights of an accused . . . we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court’s ultimate inference of reliability was reasonable. . . .

“Additionally, we note the applicable law that is relevant to a determination of whether [an] identification was properly admitted into evidence. [T]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. ... To prevail on his claim, the defendant has the burden of showing that the trial court’s determinations of suggestiveness and reliability both were incorrect.” (Citation omitted; internal quotation marks omitted.) State v. Iannazzi, 68 Conn. App. 456, 460-61, 791 A.2d 677 (2002).

We must first determine whether the identifications in this case were unnecessarily suggestive. Our Supreme Court has repeatedly stated that “generally a one-to-one confrontation between a [witness] and the suspect presented to him for identification is inherently and significantly suggestive because it conveys the message to the [witness] that the police believe the suspect is guilty.” (Internal quotation marks omitted.) State v. Austin, 244 Conn. 226, 247, 710 A.2d 732 (1998). “Upon finding suggestive circumstances, courts have then asked whether such circumstances were impermissible or unnecessary. . . . Hospital room show-ups have been upheld as necessary where a serious injury has disabled the witness or defendant. ... In other instances, however, hospital show-ups have been considered unnecessary because the suspect or witness has been in no immediate danger of death.” (Citations omitted.) State v. Mitchell, 204 Conn. 187, 201, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987).

Our Supreme Court, however, has held that “even a suggestive procedure orchestrated by the police is permissible if exigent circumstances compel its use .... In the past, when we have been faced with the question of whether an exigency existed, we have considered such factors as whether the defendant was in custody, the availability of the victim, the practicality of alternate procedures and the need of police to determine quickly if they are on the wrong trail.” State v. Holliman, 214 Conn. 38, 47-48, 570 A.2d 680 (1990).

In this case, the police were looking for a murder suspect and it was crucial to ascertain quickly whether the defendant was the man responsible so that, if he were not, the search to find and apprehend the responsible person could resume with a minimum of delay. Under the circumstances, we conclude that although the hospital identifications were suggestive, they were not unnecessarily so because of the exigent circumstances. Even if we were to assume that the identifications were unnecessarily suggestive, we would conclude that under the totality of the circumstances, the identifications were sufficiently reliable.

“ [Reliability is the linchpin in determining the admissibility of the identification testimony .... To determine whether an identification that resulted from an unnecessarily suggestive procedure is reliable, the corruptive effect of the suggestive procedure is weighed against certain factors, such as the opportunity of the [witness] to view the criminal at the time of the crime . . . the accuracy of [the witness’] prior description of the criminal, the level of certainty demonstrated at the [identification] and the time between the crime and the [identification].” (Internal quotation marks omitted.) State v. Salmon, 66 Conn. App. 131, 136, 783 A.2d 1193 (2001), cert. denied, 259 Conn. 908, 789 A.2d 997 (2002).

The court found that “[i]n view of the totality of the circumstances ... I don’t necessarily dismiss . . . that . . . this matter was unnecessarily suggestive. I go to the reliability and find that the identification of the defendant by both witnesses was sufficiently reliable under the totality of the circumstances to warrant its admission.” To support its conclusion that the identifications were reliable, the court considered the accuracy of the witnesses’ prior description of the defendant, the level of certainty of the witnesses at the confrontation and the length of time between the crime and the confrontation. On the basis of our review of the record, we conclude that the identifications were rehable.

The court reasonably could have found from the totality of the circumstances that, while the identification procedure may have been suggestive, the identifications were nonetheless sufficiently rehable. Accordingly, we conclude that the court properly denied the defendant’s motion to suppress.

Ill

The defendant next claims that the court improperly enhanced his sentence under § 53-202k because the issue of the sentence enhancement was not presented to the jury. The defendant also claims that the court improperly imposed three separate enhancements under § 53-202k. He asserts that these improprieties violated his constitutional rights and that, consequently, the enhancements under § 53-202k must be vacated. We disagree.

A

The defendant concedes that he failed to preserve his first claim with respect to § 53-202k at trial and now seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We review the claim because the record is adequate for review and it is of constitutional magnitude. We conclude, however, that the claim fails under the fourth prong of Golding.

Our disposition of the defendant’s first claim is controlled by our Supreme Court’s holding in State v. Montgomery, 254 Conn. 694, 759 A.2d 995 (2000). In Montgomery, our Supreme Court recognized that “the jury and not the trial court must make the factual determinations required under § 53-202k . . . .’’Id., 735. The Supreme Court determined, however, that the trial court’s failure to submit the issue of sentence enhancement pursuant to § 53-202k to the jury was harmless error because the jury necessarily had made all the factual findings to support an imposition of an enhanced sentence under the statute. Id., 738.

Applying the analysis set forth in Montgomery, we conclude that, in the present case, the court’s failure to submit the issue of the applicability of § 53-202k to the jury and its imposition of an enhanced sentence under the statute was harmless error. The “application of § 53-202k depends on factual findings concerning the two elements of that statute: (1) that the defendant committed a class A, B or C felony and (2) that the defendant committed such felony with the use of a firearm.” State v. Roman, 67 Conn. App. 194, 210, 786 A.2d 1147 (2001), cert. granted on other grounds, 259 Conn. 920, 791 A.2d 567 (2002). First, the jury necessarily found that the defendant had committed a class A felony and two class B felonies. Second, because the defendant did not contest the fact that the victim died as a result of wounds caused by a firearm and the jury found the defendant guilty of felony murder, attempt to commit robbery in the first degree and conspiracy to commit robbery in the first degree, the court’s failure to instruct the jury on the elements of § 53-202k was harmless beyond a reasonable doubt.

We conclude that the jury would have found that the defendant was subject to a sentence enhancement under § 53-202k had it been instructed properly on the elements of that statute. Accordingly, the defendant’s claim fails under the fourth prong of Golding.

B

The defendant also claims that the court improperly imposed three separate enhancements under § 53-202k. We disagree.

At the outset, we note that our Supreme Court, in State v. Dash, 242 Conn. 143, 698 A.2d 297 (1997), concluded that § 53-202k is a sentence enhancement, not a separate felony offense. In addition, our Supreme Court has held that the application of the sentence enhancement provision of § 53-202k does not violate double jeopardy principles. State v. McMahon, 257 Conn. 544, 559, 778 A.2d 847 (2001), cert. denied, 534 U.S. 1130, 122 S. Ct. 1069, 151 L. Ed. 2d 972 (2002).

In State v. Davis, 255 Conn. 782, 783-84, 772 A.2d 559 (2001), the defendant was convicted of robbery in the first degree and burglary in the first degree and the court imposed two additional five year terms of imprisonment for the commission of a class A, B or C felony with a firearm, pursuant to § 53-202k. Although the court did not address the issue presently before us, we find it instructive that, in Davis, our Supreme Court implicitly upheld the validity of multiple enhancements under § 53-202k.

Under the plain language § 53-202k, the legislature imposed the sentence enhancement for a person who commits “any class A, B or C felony” with a firearm “consecutive to any term of imprisonment imposed for conviction of such felony.” (Emphasis added.) In using the word “any,” the legislature clearly expressed its intent to provide for an enhancement of each qualifying conviction.

Our examination of the legislative history of § 53-202k also supports our conclusion that multiple enhancements are permitted under the statute. It is clear that the legislature’s purpose in enacting the statute was to increase the penalties for crimes committed with the use of firearms. State v. McMahon, supra, 257 Conn. 561-62. Section 53-202k “adds five years to the end of whatever other sentence you are receiving as a consequence of these acts. ... So that would be in addition to the minimum mandatories that are already in existence for whatever the underlying crime was. So, it is five additional years on top of the other sentence.” 36 H.R. Proc., Pt. 33, 1993 Sess., pp. 11727-28, remarks of Representative Michael P. Lawlor.

On the basis of Davis and the plain language and legislative history of § 53-202k, we conclude that the court properly imposed three separate enhancements under the statute.

IV

The defendant next claims that the court violated his due process rights under the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut when it instructed the jurors to consider each other’s feelings while deliberating. We disagree.

The defendant failed to preserve this claim at trial and now seeks review under Golding or, alternatively, under the plain error doctrine. See Practice Book § 60-5. We will review the claim because the record is adequate for our review and the claim is of constitutional magnitude. We conclude, however, that the claim fails under the third prong of Golding.

“When reviewing the challenged jury instruction, however, 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 not whether it is as accurate upon legal principles as the opinions of a court of last resort but 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 will not view the instructions as improper. . . . [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled.” (Citations omitted; internal quotation marks omitted.) State v. George B., 258 Conn. 779, 797, 785 A.2d 573 (2001).

The defendant challenges the following portions of the court’s statements to the jury: “[W]ith regard to your deliberations, I am directing that you continue to deliberate, considering all the evidence that you have before you and all the opinions, feelings of all the people that you have here, and each of you listening to each other and taking into consideration, and in your deliberations, as I have directed you before. And then making your decision. So at this time, I will order that you continue deliberating and excuse you to the deliberating room.” “With that I will excuse you for the day and just ask you to think about—think about this tonight. I know you will. I’m certainly not telling you anything you won’t do. But think deeply about it and how people feel about it and how each of you feel about it, and—see if there’s any—in your mind, if there’s any common ground and so on. And when you get back together tomorrow morning at 10 to see—see where you are then.” “Ladies and gentlemen, I’m going to excuse you into the deliberating room in a moment. Before I do, let me advise you that I am going to do that because you’ve had the overnight to think about this and— and perhaps a new approach or something to this matter, and in order to break the impasse that you mentioned yesterday you were still at. But I would advise that you should take another look at this when you’re all there and deliberate for a period of time. And it—I’m leaving that up to you.”

Our Supreme Court, in State v. Feliciano, 256 Conn. 429, 441-42, 778 A.2d 812 (2001), stated: “By asking the jurors to consider the views and arguments of others, the court’s instructions embodied the very essence of the jury system, which is to secure unanimity by a comparison of views, and by arguments among the jurors themselves. ... It would defy logic to suggest that a juror should not listen with deference to the views of others, particularly when a majority of the others holds a different view of the case than his own. No juror should possess the blind determination that the verdict shall represent his opinion, deaf to those whose equal intelligence and integrity have brought them to a different place. . . . The charge in the present case, when read as a whole, properly informed the jury that each member had the individual responsibility to consider the opinion of the others and to satisfy him or herself of the correctness of his or her opinion and not merely to acquiesce in the conclusion of others.” (Citations omitted; emphasis added; internal quotation marks omitted.)

We conclude, therefore, that the record does not support the defendant’s claim under Golding that a constitutional violation clearly exists and clearly deprived him of a fair trial, nor does it give rise to plain error because the instructions did not affect the fairness or integrity of the proceedings or result in a manifest injustice to the defendant. See State v. Ryan, 53 Conn. App. 606, 612-13, 733 A.2d 273 (1999).

V

Finally, the defendant claims that the court improperly refused to issue the defendant’s requested instruction to the jury but instead gave a “Chip Smith” charge. See State v. Smith, 49 Conn. 376, 386 (1881). This claim has no merit.

After two days of deliberating, the jury informed the court that it had reached an impasse. The court gave a “Chip Smith” charge despite the defendant’s objection and written request to charge in an alternative manner. Although the defendant concedes that the “Chip Smith” charge has been approved on numerous occasions by our Supreme Court; see, e.g., State v. Feliciano, supra, 256 Conn. 439; he argues that it suggested to the .jury that a majority rule should be given some kind of greater weight.

Our decision in State v. Lyons, 36 Conn. App. 177, 188, 649 A.2d 1046 (1994), is dispositive of this claim. In Lyons, we stated: “[The Chip Smith charge] in no way coerces dissenting jurors into subverting their opinions to those of the majority, but urges each juror to consider the questions before the jury with due regard and deference to the opinions of each other in an effort to arrive at a unanimous verdict. Although the charge does call on dissenting jurors to reevaluate their conclusions, such a charge is not coercive when considered in its totality.” (Internal quotation marks omitted.) Id.

Accordingly, we conclude that the “Chip Smith” charge as given in this case was appropriate and proper and the defendant’s claim that his due process rights were violated is, therefore, meritless.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was sentenced to fifty years for felony murder, fifteen years for conspiracy to commit robbery, fifteen years for attempt to commit robbery in the first degree and five years for carrying a pistol or revolver without a permit for a total of eighty-five years imprisonment before the imposition of sentence enhancements.

       “Because the defendant has not briefed his claim separately under the Connecticut constitution, we limit our review to the United States constitution.” (Internal quotation marks omitted.) State v. Jones, 65 Conn. App. 649, 652 n.6, 783 A.2d 511 (2001).

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,16 L. Ed. 2d 694 (1966).

       The state claims that the defendant conceded this issue at trial and, therefore, this court should decline to review it. While the trial court was hearing exceptions to the jury instructions, the state raised a concern about the jury charge on identifications. The following colloquy occurred:
      “The Court: I realize there’s—there’s a charge for identification. I did not think it was an issue here.
      “[Defense Counsel]: Judge, and identification really hasn’t been raised as a defense here. And other than the fact that identification is always an issue in a criminal case, but that’s—
      “The Court: But—
      “[Defense Counsel]: We’re not asserting that there’s been a misidentification.”
      We do not consider defense counsel’s statement that he was not asserting that there was a misidentification as a waiver of the defendant’s claim that the identification was impermissibly suggestive and unreliable. We consider those claims as separate and distinct and, therefore, we will review the defendant’s claim because it was not waived at trial and was preserved properly for this appeal.

       We again limit our review to the United States constitution because the defendant failed to brief the claim separately under the Connecticut constitution. See footnote 2.

       General Statutes § 53-202k provides in relevant part: “Any person who commits any class A, B or C felony and in the commission of such felony uses . . . any firearm . . . shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.”

         The defendant claims the court’s determination that he was in violation of General Statutes § 53-202k violated his constitutional rights under the fifth, sixth and fourteenth amendments to the United States constitution, and article first, §§ 8, 9 and 19, of the constitution of Connecticut.

       Under Golding, “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.) State v. Golding, supra, 213 Conn. 239-40.

       See footnote 8.

       “A ‘Chip Smith’ instruction reminds the jurors that they must act unanimously, while also encouraging a deadlocked jury to reach unanimity. See D. Borden & L. Orland, 5 Connecticut Practice Series: Connecticut Criminal Jury Instructions (2d Ed. 1997) §§ 4.4 and 4.5.” State v. Anderson, 65 Conn. App. 672, 682 n.5, 783 A.2d 517 (2001).

       The court’s instruction was as follows: “Ladies and gentlemen, certainly I’ve had—I have your message, and I’ve had your messages, that you are unable to reach a unanimous verdict in some parts of this matter perhaps.
      “Although the verdict to which each of you agrees must express his or her own conclusion and not be a mere acquiescence in the conclusions of your fellow jurors, yet in order to bring twelve minds to a unanimous result, you should consider the question you have to decide, not only carefully, but also with due regard and deference to the opinions of one another.
      “In conferring together, you ought to pay proper respect to each other’s opinions and listen with an open mind to each other’s arguments. If most of you reach a certain conclusion, a dissenting juror or jurors should consider whether his or her opinion is a reasonable one when the evidence does not lead to a similar opinion in the minds of other jurors who are men and women who are equally honest and equally intelligent, who have heard the same evidence with the same attention, with equal desire to arrive at the truth and under the sanction of the same oath.
      “If a majority of you are for one position, the minority ought to seriously ask themselves whether, in reason, they should adhere to their own conclusions when those conclusions are not concurred in by most of those with whom you are associated, and whether it might not be well to distrust the weight or sufficiency of the evidence upon which the minority rely when that evidence fails to bring the minds of their fellow jurors to the same conclusion as they have reached.
      “Now, I will repeat that each of you must express your own—his or her own conclusion, but give consideration to these things I have just outlined to you.
      “With that, I’m going to send you back to resume deliberations. And I ask you to consider, among the other instructions and the evidence you have, this further instruction that I have just given you. And we will await your communication.”


source: Caselaw Access Project

author: LAVERY, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. SCOTT WINER
    (AC 20476)
    Lavery, C. J., and Landau and Dranginis, Js.
    Argued November 29, 2001
    officially released May 14, 2002

      Louis S. Avitabile, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Brian Preleski, assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, C. J.

The defendant, Scott Winer, appeals from the judgments of conviction rendered after his pleas of nolo contendere to two counts of risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21 and one count of risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21 (2). On appeal, the defendant claims that the trial court improperly denied his postsentence motions to vacate the judgments and to withdraw his pleas of nolo contendere because they were involuntary, unknowing and unconstitutional. The defendant asserts that his pleas were invalid because (1) the state failed to act within the terms of the plea agreement, (2) he did not demonstrate an understanding of the law, (3) he did not have an understanding of the relevant sentencing information because the substance of the plea agreement was not fully communicated to him, (4) the sentence that was imposed was illegal and (5) the trial court was not the most appropriate venue to seek a remedy for his claims. In essence, the defendant’s appeal is based on two issues: (1) the sentence that he received from the trial court was not in accordance with the plea agreement he entered into with the state; and (2) the sentence he received was illegal. We disagree with the defendant’s first claim and agree with his second claim and, therefore, we reverse the judgments of the trial court in part.

The following facts and procedural history are relevant to this appeal. The defendant was arrested for a series of acts of sexual misconduct that occurred between July, 1995, and March, 1997, involving three different males under the age of sixteen. On January 5, 1998, the defendant, who was represented by counsel, entered three nolo contendere pleas to the charges of risk of injury to a child. In exchange for entering the pleas, the trial court agreed that the maximum sentence of incarceration that it would impose on the defendant would be two years. The defendant was informed during the canvass that if the sentence exceeded two years, he could withdraw the pleas. The defendant, however, was specifically informed that the sentence could include a suspended term of thirty years. Sentencing was postponed until the court received the presentence report and an alternative incarceration plan. On March 26, 1998, the defendant was sentenced to eight years of incarceration, execution suspended after two years, and was placed on probation with special conditions for a period of five years.

On September 27, 1999, the defendant filed a motion seeking to vacate the judgments and to withdraw his pleas of nolo contendere. During a hearing on the motion, the defendant claimed that he should be permitted to withdraw his pleas and to plead anew because they were not made knowingly and intelligently. The trial court denied the motion, and the defendant appealed.

The defendant was released from custody on March 24, 2000, and his five year probation commenced. On March 27, 2000, the defendant reported to the office of adult probation and informed his probation officer that he would be residing in Massachusetts. The defendant was told that this would be a violation of his probation and that he could not leave the state until he received formal permission. The commonwealth of Massachusetts subsequently denied the defendant’s request for an interstate compact transfer. On March 28, 2000, the defendant failed to report to a scheduled meeting with his probation officer and, on March 29, 2000, he failed to contact the office of adult probation, as was required. A warrant was issued for the defendant’s arrest for violating the terms of his probation, and he was arrested on April 3, 2000. The defendant is currently incarcerated as a result of violating his probation. Additional facts will be provided as necessary.

I

The defendant claims that he should have been permitted to withdraw the nolo contendere pleas that he entered because they were involuntary, unknowing and unconstitutional because the sentence he received exceeded the terms of the plea agreement. It is the defendant’s contention that the trial court violated the terms of the plea agreement when it sentenced the defendant to a period of probation in addition to the two years of incarceration. We disagree.

The following additional facts are needed for a resolution of this claim. On January 5, 1998, the defendant entered into plea bargain negotiations, through his counsel of record, whereby he agreed to enter pleas of nolo contendere. Before accepting the pleas, the trial court canvassed the defendant in accordance with Practice Book §§ 39-19 and 39-20. Additionally, the defendant informed the court that he was thirty-five years old and had completed sixteen years of schooling.

Before accepting the pleas, the following colloquy took place between the defendant and the court:

“The Court: And, I’ve discussed this matter with counsel again this morning, and at this particular point, I am limiting myself to an incarcerated portion of a sentence of up to two years. You understand that? Understand that?
“The Defendant: Yes.
“The Court: And, if after I receive the presentence report and an alternative incarceration plan, I come to the conclusion that you should go to jail for more than two years, then you will be allowed to withdraw your pleas, and go try the case, you understand that?
“The Defendant: Yes.
“The Court: But if after receiving those papers I come to the conclusion that that sentence or some sentence of less severity is in order, you won’t be allowed to withdraw your pleas, you understand that?
“The Defendant: Yes.
“The Court: Now, a sentence could very well be something like thirty years suspended after two years or less, you understand that?
“The Defendant: Yes.
“The Court: Okay. Now, have you understood all the questions that I’ve asked you?
“The Defendant: Yes.”

After concluding that the nolo contendere pleas were made voluntarily and intelligently, the court accepted the pleas and postponed sentencing until the office of adult probation completed the presentence investigation report and the alternative incarceration plan. Prior to being sentenced on March 26, 1998, the defendant’s counsel stated that the defendant was prepared to submit to a period of probation if the court imposed the recommendation of the alternative incarceration plan. The court sentenced the defendant to eight years of incarceration, execution suspended after two years, and five years probation. After the sentencing hearing, the defendant signed a “conditions of probation” form.

On May 27, 1999, over fourteen months after being sentenced and signing the “conditions of probation” form, the defendant filed his first motion to vacate the judgments and requested permission to withdraw his pleas and to plead anew. A second motion was filed on September 27,1999, also seeking to vacate the judgments and requesting permission to withdraw his pleas and to plead anew. The basis for both motions was the defendant’s claim that the sentence that he received was not in accordance with the terms of the plea agreement. The court heard the motions on October 13, 1999, and denied them on December 15, 1999.

“A . . . plea, once accepted, may be withdrawn only with the permission of the court. . . . The court is required to permit the withdrawal of a guilty plea upon proof of any ground set forth in Practice Book § [39-27]. . . . Whether such proof is made is a question for the court in its sound discretion, and a denial of permission to withdraw is reversible only if that discretion has been abused.” (Internal quotation marks omitted.) State v. Gundel, 56 Conn. App. 805, 812, 746 A.2d 204, cert.; denied, 253 Conn. 906, 753 A.2d 941 (2000). “The burden is always on the defendant to show a plausible reason for the withdrawal of a plea of guilty.” (Internal quotation marks omitted.) State v. Andrews, 253 Conn. 497, 505-506, 752 A.2d 49 (2000).

“It is axiomatic that the trial court judge bears an affirmative, nondelegable duty to clarify the terms of a plea agreement. [Ujnless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable. . . . When a defendant pleads [nolo contendere], he waives important fundamental constitutional rights, including the privilege against self-incrimination, the right to a jury trial, and the right to confront his accusers. . . . These considerations demand the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and its consequences.” (Citations omitted; internal quotation marks omitted.) State v. Garvin, 242 Conn. 296, 309-10, 699 A.2d 921 (1997). “A . . . plea cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.... An understanding of the law in relation to the facts must include all relevant information concerning the sentence.” (Internal quotation marks omitted.) State v. Andrews, 53 Conn. App. 90, 96, 729 A.2d 232 (1999) aff'd, 253 Conn. 497, 752 A.2d 49 (2000).

If the trial court does not accept the plea agreement made between the state and the defendant, it “shall inform the parties of this fact; advise the defendant personally in open court . . . [and] afford the defendant the opportunity then to withdraw his plea .... Where the word shall is employed in criminal procedural rules, it indicates that the requirements that follow are mandatory rather than directory. . . . The failure of the trial court to follow the mandatory provisions of the mies of criminal procedure constitutes plain error.” (Citations omitted; internal quotation marks omitted.) Miller v. Commissioner of Correction, 29 Conn. App. 773, 778-79, 617 A.2d 933 (1992). “The failure of the trial court to afford this protection to the [defendant] deprives him of the constitutionally guaranteed right to understand fully the consequences of his plea as a part of ensuring that the plea is voluntarily made.” Id., 779.

Practice Book § 39-27 sets forth six grounds on which a defendant can withdraw his plea after it has been accepted by the court. It is the defendant’s contention here that he should be permitted to withdraw his pleas in accordance with § 39-27 (2) and (3) because the pleas were involuntary and the sentence he received exceeded the terms of the plea agreement. The plea agreement that the defendant entered into permitted the trial court to sentence him to a maximum two year period of incarceration. During sentencing, however, the defendant received eight years of incarceration, suspended after two years, to be followed by five years of probation. By sentencing the defendant to a period of probation, the defendant claims the trial court exceeded the terms of the plea bargain and should have afforded him the opportunity to withdraw his pleas.

The defendant principally relies on State v. Reid, 204 Conn. 52, 526 A.2d 528 (1987), and Miller v. Commissioner of Correction, supra, 29 Conn. App. 773. This reliance, however, is misplaced. In Reid, the defendant pleaded guilty to one count of robbery in the first degree and one count of larceny in the first degree. In exchange for the plea, the defendant, who was cooperating with the prosecuting authorities, entered into an agreement with the state for a sentence of fifteen to eighteen years, with the right to argue for less at sentencing. State v. Reid, supra, 53. At the time of sentencing, the state recommended a sentence of fifteen years, the minimum under the plea agreement. Id. The sentencing judge, who was a different judge than the judge who had accepted the defendant’s plea, sentenced the defendant to twenty years incarceration on each count, to run concurrently, suspended after ten years, plus five years of probation. Id. The defendant appealed from the judgment, claiming that the sentence did not comply with the terms of the plea agreement that he had entered into with the state. Id., 54.

In setting aside the judgment, our Supreme Court held: “The sentence imposed, while it carried a lesser period of immediate incarceration than the sentence recommended by the state’s attorney, potentially required the defendant to seive five years more than he had bargained for. Further, the plea agreement did not include a period of probation and there is nothing to indicate that a period of probation had been agreed to or anticipated by the defendant.

“A suspended sentence and a period of probation are not inconsequential adjuncts of the sentence imposed that can be ignored or, like castor oil, be considered to have been administered for the defendant’s own good. Probation is a criminal sentence and the conditions attached to probation involve serious restraints on a probationer’s life-style, associations, movements and activities. . . . Violations of those conditions, furthermore, would expose the defendant to a sentence substantially in excess of the agreed upon sentence which induced his . . . pleas.” (Citations omitted; emphasis added.) Id., 55-57.

This case, however, is distinguishable from Reid. In Reid, the plea agreement that the defendant entered into was a straight sentence, confinement for a period of fifteen to eighteen years. As our Supreme Court noted, “there [was] nothing to indicate that a period of probation had been agreed to or anticipated by the defendant.” Id., 55. In contrast, the terms of the plea agreement in this case constituted a split sentence. During the colloquy between the court and the defendant to determine whether the pleas were being entered into knowingly and voluntarily, the defendant specifically agreed to an executed sentence of two years incarceration, plus a suspended sentence that could be as long as thirty years. According to Black’s Law Dictionary, a suspended sentence is one that the “defendant is not required at the time sentence is imposed to serve the sentence.” (Emphasis added.) Black’s Law Dictionary (6th Ed. 1990). While not required to serve a sentence when imposed, a suspended sentence contemplates the possibility that the defendant could be required to serve the sentence imposed at some later time. It is disingenuous for the defendant now to state that he thought that the maximum amount of time he could be incarcerated for was limited to two years when he specifically acknowledged that he could receive a suspended sentence of up to thirty years.

It should also be noted that the defendant, who is college educated, was represented by counsel during the plea canvass and sentencing hearing, and at no point during the proceedings did the defendant or his attorney indicate that the sentence was inconsistent with the defendant’s understanding of the plea agreement. Further, General Statutes § 53a-28 (b), entitled “Authorized sentences,” provides in relevant part: “[W]hen aperson is convicted of an offense, the court shall impose one of the following sentences ... (5) a term of imprisonment, with the execution of such sentence of imprisonment suspended, entirely or after a period set by the court, and a period of probation or a period of conditional discharge . . . .” See also General Statutes § 53a-28 (b) (6). It is not possible in Connecticut to receive a sentence suspended entirely or in part without a period of probation or conditional discharge. It is obvious that what the defendant bargained for was a sentence of up to thirty years, all but two years of which would be suspended. Section 53a-28 (b) (5) and (6) make clear that when the court suspends part of an imposed sentence, as occurred in this case and as agreed to by the defendant, the court must also sentence a defendant to a period of probation or a period of conditional discharge. It is clear that the defendant understood the terms of his pleas, and there is nothing in the record to indicate that they were not voluntarily entered into.

In Miller v. Commissioner of Correction, supra, 29 Conn. App. 773, the defendant entered into a plea agreement with the state, which provided that the maximum sentence he could receive would be fifteen years incarceration, with a maximum sentence of four years more than the incarcerated portion of the sentence suspended upon release, and three years probation. Id., 774. When sentenced, the defendant received a prison term of seventeen and one-half years, execution suspended after thirteen and one-half years, in compliance with the plea bargain. Id. The court, however, imposed four years of probation. Id. The defendant subsequently brought a petition for a writ of habeas corpus, claiming that the sentence he received exceeded the terms of the plea agreement. Id., 775. We affirmed the habeas court’s decision that the trial court did not sentence the defendant within the parameters of the plea agreement when it sentenced the defendant to a period of four years probation when the agreement he had entered into with the state provided for only three years of probation. Id., 780.

The present case is factually distinct from Miller in two respects. In Miller, the defendant objected to the sentence he received three weeks after it was imposed. Id., 775. Here, however, the defendant waited more than fourteen months before claiming that the sentence he received exceeded the terms of the plea agreement. “A swift change of heart is itself strong indication that the plea was entered in haste and confusion.” (Internal quotation marks omitted.) United States v. Gonzalez-Mercado, 808 F.2d 796, 801 (11th Cir. 1987). A period of fourteen months can hardly be considered a “swift change of heart.” Such a substantial delay in time between the defendant’s sentencing and his challenge of the sentence’s validity tends to reveal that the defendant expected a term of probation when he was sentenced.

Secondly, there was no dispute in Miller that the trial court exceeded the terms of the plea agreement when it sentenced the defendant to four years of probation when the agreement specifically limited the length of probation to three years. Miller dealt solely with the question of what remedy should be afforded when a court sentences an individual in excess of the terms of a plea agreement. There was no evidence that the defendant in Miller ever contemplated a probationary term that exceeded three years. That is not the case here. Since the pleas were accepted on January 5,1998, the defendant twice signed “conditions of probation” forms attesting to the fact that he read and understood the conditions and that he would abide by them. On March 26,1998, the defendant first signed the probation form agreeing to follow its terms for a period of five years. It was not until fourteen months later that the defendant claimed that the probationary period violated the terms of the plea agreement. The defendant offers us no explanation for why he agreed to the terms of probation in March, 1998, and then waited until May, 1999, to claim that the plea agreement never contemplated a term of probation.

The state’s argument rests on the holdings in two federal court cases, Gammarano v. United States, 732 F.2d 273 (2d Cir. 1984), and Lucero v. Kerby, 7 F.3d 1520 (10th Cir. 1993). While not binding on us, we find their rationale particularly persuasive in this case. See Turner v. Frowein, 253 Conn. 312, 341, 752 A.2d 955 (2000). In Gammarano v. United States, supra, 273, the Second Circuit dealt with a situation similar to the one we face in this case. In Gammarano, the defendant and the United States’ attorney entered into a plea agreement in which the government agreed not to oppose the defendant’s request to receive a sentence of no more than two years of incarceration. Id., 274. When sentenced, however, Gammarano received five years of probation. Id. Gammarano did not challenge the terms of the sentence until two years later, after he violated the terms of his probation. Id., 275. He argued that his term of probation should be reduced to two years because it exceeded the terms of the plea agreement. Id. Rejecting Gammarano’s argument, the Second Circuit stated that the “reasonable understanding and expectations of the parties, rather than the technical distinctions in semantics, control the question of whether a particular sentence imposed violates a plea agreement.” Id., 276. The Second Circuit found that Gammarano’s intention in entering into the plea agreement was his desire to avoid incarceration for a period of longer than two years. Id. In rejecting Gammarano’s attempt to withdraw his plea, the court stated, “Gammarano does not offer any explanation for his delay in objecting to the five-year probation term. While his silence [after imposition of sentence] does not constitute a waiver, it is evidence that his reasonable expectations had been fulfilled. ... In short, his inaction indicates that the probation term satisfied his expectations under the plea agreement.” (Citation omitted; internal quotation marks omitted.) Id.

Similarly, in Lucero v. Kerby, supra, 7 F.3d 1520, the Tenth Circuit upheld a District Court’s decision to reject the defendant’s argument that he should have been able to withdraw his guilty plea when the defendant received a sentence that exceeded the parameters of the plea agreement. In Lucero, the defendant entered into a plea agreement that stated that he would not be sentenced to more than three years of incarceration on a burglary charge and one year on a habitual offender charge. Id., 1521. When sentenced, however, the defendant received one year on the habitual offender charge and a nine year suspended sentence on the burglary charge on the condition that he be placed on probation for four years upon his release from incarceration. Id. After being released from prison, the defendant violated the terms of his probation. Id. The defendant’s probation was subsequently revoked and he was sentenced to the nine years incarceration that was originally suspended, plus an additional year for being a “second habitual offender.” Id. The defendant did not object to the sentence he received under the plea agreement until more than two years after it was imposed. Id. In rejecting the defendant’s claim that the sentence violated the terms of the plea agreement, the Tenth Circuit held: “The fact that [the defendant] did not complain about his sentence originally or at the time his probation was revoked also lends credence to the conclusion that he reasonably believed the plea agreement’s limitation of incarceration to four years or less applied only to his initial sentence, not to his subsequent probation violation sentence.” Id., 1522.

As in Gammarano and Lucero, the defendant in this case did not initially object to the terms of the sentence. After being sentenced, the defendant met with a probation officer and signed the probation papers that stated the terms of his probation. It was not until more than fourteen months later that he claimed that the sentence he received exceeded the terms of the plea agreement. The defendant has not given us a plausible reason for his delay. He has offered us no evidence to suggest that he would have preferred to go to trial, nor has he claimed his innocence. After a complete review of the transcripts and proceedings, it is evident that the defendant’s reasonable expectation in entering into the plea agreement was to avoid incarceration for a period of more than two years. That is precisely what he received. The executed part of the defendant’s sentence was two years of incarceration. Whether the defendant would have to serve any additional time was completely within his control. He held the keys to his own freedom. Additionally, as we discussed previously, § 53a-28 (b) requires that when a court imposes a suspended sentence, the court is also required to impose a period of probation or a period of conditional discharge. At no point in time during the sentencing hearing did the defendant or his attorney object to the period of probation. It is clear that the defendant contemplated a period of probation when he entered into his plea agreement. Hence, we cannot conclude that the trial court abused its discretion when it denied the defendant’s motion to withdraw his pleas of nolo contendere.

II

The defendant next claims that the terms of his sentence violated General Statutes § 53a-29 (e). We agree.

The following additional facts are needed for us to resolve this claim. The defendant pleaded nolo contendere to two counts of risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21 and one count of risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21 (2). Although § 53a-29 (e) requires that the period of probation for violating subdivision (2) of § 53-21 be at least ten years, the defendant received eight years of incarceration, suspended after two, plus five years probation. It is the defendant’s contention, and we agree, that this sentence was statutorily impermissible.

“An illegal sentence is one that exceeds the maximum statutory limits, does not satisfy the mandatory minimum, violates double jeopardy rights, is ambiguous or is internally contradictory.” State v. Mollo, 63 Conn. App. 487, 491, 776 A.2d 1176, cert. denied, 257 Conn. 904, 777 A.2d 194 (2001). “The classic type of illegal sentence is one that is below the mandatory minimum.” State v. Daniels, 207 Conn. 374, 387, 542 A.2d 306, after remand for articulation, 209 Conn. 225, 550 A.2d 885 (1988), cert. denied, 489 U.S. 1069, 109 S. Ct. 1349, 103 L. Ed. 2d 817 (1989).

In this case, the defendant’s sentence did not satisfy the mandatory minimum sentence requirement that our legislature has established. Section 53a-29 (e) provides in relevant part: “The period of probation . . . shall not be less than ten years nor more than thirty-five years for conviction of a violation of subdivision (2) of section 53-21 . . . .” By sentencing the defendant to a five year period of probation, as opposed to ten, the court imposed an illegal sentence on the defendant.

In Bozza v. United States, 330 U.S. 160, 67 S. Ct. 645, 91 L. Ed. 818 (1947), the defendant was sentenced in accordance with a statute that provided for a mandatory minimum sentence of a fine of one hundred dollars and imprisonment. When initially sentenced, however, the court imposed only a term of imprisonment. Several horns later, the court recalled the defendant and imposed the mandatory minimum fine as was required by the statute. In upholding the court’s increased sentence to comply with the terms of the statute, the Supreme Court held: “If this inadvertent error cannot be corrected in the manner used here by the trial court, no valid and enforceable sentence can be imposed at all. . . . This Court has rejected the doctrine that a prisoner, whose guilt is established, by a regular verdict, is to escape punishment altogether, because the court committed an error in passing the sentence. . . . The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner. ... In this case the court only set aside what it had no authority to do and substitute [d] directions required by the law to be done upon the conviction of the offender. . . . The sentence, as corrected, imposes a valid punishment for an offense instead of an invalid punishment for that offense. ” (Citations omitted; internal quotation marks omitted.) Id., 166-67.

“Bozza thus stands for the proposition that a trial court not only can alter a statutorily-invalid sentence in a way which might increase its severity, but must do so when the statute so provides.” (Emphasis in original; internal quotation marks omitted.) Breest v. Helgemoe, 579 F.2d 95, 99 (1st Cir.), cert. denied, 439 U.S. 933, 99 S. Ct. 327, 58 L. Ed. 2d 329 (1978). Additionally, Practice Book § 43-22 provides: “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition in an illegal manner.”

The sentence imposed by the court failed to satisfy the statutoiy based minimum requirements created by § 53a-29 (e). As such, the sentence was illegal. The statutory based minimum requirements, however, fall within the terms of the plea agreement that the defendant entered into. As we discussed in part I of this opinion, the defendant agreed to a two year executed sentence and an unexecuted sentence of up to thirty years. “[A defendant], who has been successful on appeal or has an illegal sentence vacated, should not be heard to assert that he should not be subjected to a proper reappraisal of statutory sentencing standards upon remand.” (Internal quotation marks omitted.) State v. Sutton, 197 Conn. 485, 503, 498 A.2d 65 (1985), cert. denied, 474 U.S. 1073, 106 S. Ct. 833, 88 L. Ed. 2d 804 (1986).

The judgments are reversed only as to the defendant’s sentence and the case is remanded for resentencing in accordance with the defendant’s plea agreement and General Statutes § 53a-29 (e) so that the mandatory period of probation is imposed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1995) § 53-21 provides in relevant part,: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its . . . health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       General Statutes (Rev. to 1997) § 53-21 provides in relevant part: “Any person who ... (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child, shall be guilty of a class C felony.”

       In addition to the usual conditions of probation, the defendant was (1) prevented from having any unsupervised contact with children under the age of sixteen, (2) prevented from having any contact with any of the victims, (3) prevented from being in locations where children typically congregate and (4) required to participate in any counseling or treatment deemed necessary by the office of adult probation.

       The court found that the defendant violated the terms of his probation by (1) failing to report to his probation officer when required, (2) failing to keep his probation officer informed of his whereabouts, (3) failing to provide his probation officer with his address, (4) leaving the state of Connecticut and (5) failing to submit to sex offender evaluation.

       Practice Book § 39-19 requires a trial court personally to address the defendant in open court to determine that the defendant understands: “(1) The nature of the charge to which the plea is offered; (2) The mandatory minimum sentence, if any; (3) The fact that the statute for the particular offense does not permit the sentence to be suspended; (4) The maximum possible sentence on the charge . . . and (5) The fact that he or she has the right to plead not guilty . . . and the fact that he or she has the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.”
      Practice Book § 39-20 provides in relevant part: “The judicial authority shall not accept a plea of . . . nolo contendere without first determining, by addressing the defendant personally in open court, that the plea is voluntary and is not the result of force or threats or of promises apart from a plea agreement. The judicial authority shall also inquire as to whether the defendant’s willingness to plead . . . nolo contendere results from prior discussions between the prosecuting authority and the defendant or his or her counsel.”

       General Statutes § 53a-29 (a) permits a trial court to sentence an individual “to a period of probation upon conviction of any crime, other than a class A felony, if it is of the opinion that: (1) Present or extended institutional confinement of the defendant is not necessary for the protection of the public; (2) the defendant is in need of guidance, training or assistance which, in his case, can be effectively administered through probation supervision; and (3) such disposition is not inconsistent with the ends of justice.”

       Practice Book § 39-27 provides in relevant part: “The grounds for allowing the defendant to withdraw his . . . plea . . . after acceptance are as follows:
      “(1) The plea was accepted without substantial compliance with Section 39-19;
      “(2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed;
      “(3) The sentence exceeds that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the judicial authority had deferred its decision to accept or reject the agreement at the time the plea . . . was entered;
      “(4) The plea resulted from the denial of effective assistance of counsel;
      “(5) There was no factual basis for the plea; or
      “(6) The plea either was not entered by a person authorized to act for a corporate defendant or was not subsequently ratified by a corporate defendant.”

       The defendant signed a second “conditions of probation” form on March 27, 2000.


author: PER CURIAM.

text:
    QUICKPOWER INTERNATIONAL CORPORATION v. CITY OF DANBURY ET AL.
    (AC 21861)
    Lavery, C. J., and Bishop and Peters, Js.
    Argued February 15
    officially released May 14, 2002

      John R. Williams, for the appellant (plaintiff).

      Ralph W. Johnson III, with whom were Salvatore N. Fomaciari and, on the brief, John B. Farley and Robert A. Rhodes, for the appellees (defendants).
   Opinion

PER CURIAM.

This appeal arises out of protracted litigation concerning the development of certain real property in Danbury known as Robinwood Terrace. The trial court granted the defendants’ motion for summary judgment, determining, as a matter of law, that the plaintiffs claims are barred by several statutes of limitation. The plaintiff, Quickpower International Corporation, appeals from the judgment rendered in favor of the defendants, the city of Danbury (city), the city of Danbury environmental impact commission and Gene F. Eriquez, mayor of the city of Danbury. We affirm the judgment of the trial court.

The facts that underlie this action began almost thirty years ago. In 1974, the Danbury planning and zoning commission approved a subdivision plan for the land, which was then owned by Dana Robin Corporation (Dana Robin). The original approval required that the subdivision be completed by 1978, but Dana Robin was able to obtain an extension of the approval until 1983. In 1986, Dana Investment Corporation (Dana Investment), the successor to Dana Robin and the plaintiffs corporate predecessor, obtained title to the land. Dana Investment contested a tax assessment via a tax appeal against the city. The tax appeal was settled pursuant to a written stipulation dated August 17,1988. The stipulation required, in part, that the planning and zoning commission would approve the subdivision, and the city and its various agencies would cooperate with Dana Investment to complete the development.

In its complaint in this action, the plaintiff alleged that following the resolution of the tax appeal, the environmental impact commission failed to issue permits for further development of the land, and issued a cease and desist order forbidding further work on the subdivision. The environmental impact commission confirmed the order on April 12, 1989, and notified Dana Investment by letter dated April 18, 1989. No further applications concerning the land have been filed since that date, and the environmental impact commission has taken no other action with respect to the land. The plaintiff did not appeal from the environmental impact commission’s decision to confirm the cease and desist order.

In 1991, Philbury Corporation commenced a foreclosure action on the land. Title to the land vested in Philbury Corporation in 1995. Sometime thereafter, the plaintiff acquired title to the land and commenced the present action on August 31,1998. The plaintiff alleged denial of due process, negligent misrepresentation, intentional misrepresentation, breach of contract, tortious interference with a contract, denial of equal protection, taking without just compensation and a claim pursuant to Monell v. New York City Dept, of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). The plaintiff sought damages and an injunction.

The defendants filed amotion for summary judgment, claiming that, as a matter of law, there were no genuine issues of material fact and that the plaintiffs claims were barred by various statutes of limitation, among other reasons. The plaintiff objected to each of the defendants’ bases for summary judgment. Most notably, the plaintiff claimed that a continuing course of conduct on the part of the defendants barred the application of the statutes of limitation. The court agreed with the defendants’ statutes of limitation defense and granted the motion for summary judgment. Judgment was rendered for the defendants. The plaintiff appealed.

On appeal, the plaintiff claims that the court improperly granted the defendants’ motion for summary judgment when it held that the plaintiffs claims were barred by the statutes of limitation. In its brief to this court, the plaintiff presented a new argument in which it asserted that in granting summary judgment, the trial court applied the three year and six year statutes of limitation in General Statutes §§ 52-581 and 52-576, respectively, which are, in fact, inapplicable. The plaintiff claims that the proper statute of limitations is General Statutes § 52-598 (a), which provides a twenty-five year time limit to institute an action for the collection of damages. We need not reach this question. First, except in exceptional circumstances, this court does not review claims that are not raised in the trial court. See Baker v. Cordisco, 37 Conn. App. 515, 522, 657 A.2d 230 (to review claims raised for first time on appeal is trial by ambuscade of trial judge), cert. denied, 234 Conn. 907, 659 A.2d 1207 (1995). And second, the plaintiff conceded at oral argument before this court that it was seeking an injunction, not damages, and that § 52-598 (a) does not apply.

With respect to the arguments and claims that the plaintiff raised in the trial court, it claims that any statute of limitations, regardless of length, was tolled by the defendants’ continuing course of conduct in refusing to cooperate with the plaintiff to develop the land. The sum total of the plaintiffs argument is that bald assertion. An appellant that wants to prevail must do more than assert unsubstantiated claims in its brief. See Con necticut National Bank v. Giacomi, 242 Conn. 17, 44-45, 699 A.2d 101 (1997); Szczerkowski v. Karmelowicz, 60 Conn. App. 429, 436, 759 A.2d 1050 (2000). The minds of appellate judges are swayed by thorough and rigorous legal analysis supported by citations to competent authority. See Altfeter v. Naugatuck, 53 Conn. App. 791, 796 n.5, 732 A.2d 207 (1999), citing Middletown Commercial Associates Ltd. Partnership v. Middletown, 42 Conn. App. 426, 439 n.12, 680 A.2d 1350, cert. denied, 239 Conn. 939, 684 A.2d 711 (1996). When an appellant has failed to brief its claims adequately, this court repeatedly has declined to review them, as we deem them abandoned. See Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 45, 668 A.2d 1346 (1996). We will not review the plaintiffs claim because it is briefed inadequately.

The judgment is affirmed.

       Prior to the commencement of this action, Dana Investment filed an action against the city in the United States District Court for the District of Connecticut, alleging negligent misrepresentation and denial of due process. The action was dismissed for lack of subject matter jurisdiction.

       The defendants also argued that the plaintiffs claims were barred by the doctrine of res judicata, failure to exhaust administrative remedies, governmental immunity, failure to state a cause of action and as a matter of law.

       At oral argument before us, the plaintiff conceded that its claim was for breach of contract for failing to cooperate in the development of the land and that it wanted injunctive relief. It also raised a twenty year common-law statute of limitations but failed to brief that claim.


text:
    MYRNA LABOW v. RONALD LABOW, TRUSTEE, ET AL.
    (AC 21271)
    Lavery, C. J., and Schaller and Stoughton, Js.
    Argued February 14
    officially released May 14, 2002

      John R. Williams, with whom, on the brief, was Myrna LaBow, pro se, for the appellant (petitioner).

      Daniel D. Portanova and Gwen E. Adamson filed a brief for the appellee (named respondent).

      Barbara M. Schellenberg, with whom, on the brief, was Stewart I. Edelstein, for the appellee (respondent Robert Rubin).
   Opinion

LAVERY, C. J.

This appeal concerns whether a petition for a new trial can be filed pursuant to General Statutes § 52-270 where there is no final judgment in the underlying action. We conclude that a final judgment is a condition precedent to the proper filing of a petition for a new trial. We therefore affirm the judgment of the trial court dismissing the petition for a new trial, albeit on different grounds.

This appeal is another branch of the extended litigation between the petitioner, Myma LaBow, and her former husband, Ronald LaBow, a respondent in this action by virtue of his status as a trustee. The facts took root during their marriage when they acquired and owned jointly with rights of survivorship twenty-two acres of real property in Weston and seven acres of real property in Fairfield. The land has been the subject of dispute in the dissolution of their marriage, a partition action and a petition for a new trial. The facts have been set down in more detail by the trial court, Fuller, J., in its memorandum of decision with respect to a motion for summaiy judgment in the partition action. Rubin v. LaBow, Superior Court, judicial district of Fairfield, Docket No. 79178886 (February 17, 1994). Judge Fuller found that the following facts are not in dispute.

“Myma LaBow commenced a dissolution action in 1974. On November 5,1975, while that action was pending, Ronald LaBow transferred his interest in the twenty-two acres in Weston to Richard H. Valentine, trustee. There is an ongoing dispute between the LaBows as to the validity of that trust, which was set up by Ronald LaBow as settlor. At the time the dissolution decree was issued by the court ... on August 28,1978, the twenty-two acres in Weston were in the trust, but Ronald LaBow still had record title to the seven acres in Fairfield. The dissolution decree . . . did not transfer title to or direct the conveyance of either parcel to Myma LaBow. On September 18,1978, after the dissolution, Ronald LaBow transferred the Fairfield property to Anthony DeVita, who in turn sold it to Robert Rubin on January 16,1985. Ronald LaBow was later appointed successor trustee under the tmst. Rubin acquired the twenty-two acres in Weston from LaBow as trustee on January 5, 1985.” Id.

Valentine, as tmstee, commenced a partition action in July, 1979. Rubin moved to intervene as a party plaintiff in the partition action because he had purchased the subject property. Myma LaBow, the petitioner here, was the defendant in the partition action. In response to the partition complaint, she filed special defenses and a multiple count counterclaim in which she challenged the validity of Rubin’s ownership interest in the real property. Rubin filed a motion for summary judgment with respect to both his complaint and Myrna LaBow’s special defenses and counterclaims. Judge Fuller granted the summary judgment motion in Rubin’s favor in February, 1994.

In his memorandum of decision, Judge Fuller made clear that granting summary judgment determined only Rubin’s right to partition the land. Judge Fuller did not determine the method of partition, i.e., partition in kind, pursuant to General Statutes § 52-495, or partition by sale, pursuant to General Statutes § 52-500. He stated expressly that the summary judgment motion was not the appropriate procedural mechanism to determine the manner in which the land should be partitioned. Judge Fuller noted that the parties have a right to present evidence and to argue to the court in favor of either partition in kind or by sale, and ordered further proceedings to determine the manner and conditions of the partition. Following several attempts to have Judge Fuller’s decision reconsidered, Myrna LaBow appealed from the decision to the Appellate Court. Rubin filed a motion to dismiss the appeal for lack of a final judgment, which was granted.

In February, 2000, Myma LaBow petitioned the Superior Court for a new trial in the partition action. In her petition, she alleged, among other things, that Ronald LaBow had defrauded her of her rightful interest in the real property at about the time of the dissolution action and at subsequent times. She alleged, as the basis for her petition for a new trial, that she had new evidence of fraud. Ronald LaBow filed a motion to strike the petition for failure to state a claim for which relief can be granted, pursuant to Practice Book § 10-39. In ruling on the motion to strike, the court, Moran, J., sua sponte considered whether the court had subject matter jurisdiction over the petition for a new trial. Relying on Summerville v. Warden, 229 Conn. 397, 426, 641 A.2d 1356 (1994), the court concluded that the statute of limitations, General Statutes § 52-582, barred the petition for a new trial and that the court therefore lacked subject matter jurisdiction. The court dismissed the petition, and Myma LaBow appealed.

In their principal briefs on appeal, the petitioner and the respondents took opposing positions as to whether the time limitation provided in § 52-582 was a substantive or procedural matter so as to affect the court’s jurisdiction. During oral argument before this court, Myrna LaBow and Rubin agreed that no action has been taken by any party to determine the method of partition as ordered by Judge Fuller. Where the manner of partition has not been determined, there is no final judgment in a partition action. See Fernandes v. Rodriguez, 255 Conn. 47, 59, 761 A.2d 1283 (2000). We asked sua sponte whether a petition for a new trial can be filed where there is no final judgment in the original case and asked the parties to file supplemental briefs in which they addressed that question.

“A petition for a new trial is a statutory remedy that is essentially equitable in nature. State v. Grimes, 154 Conn. 314, 325, 228 A.2d 141 (1966).” Bleidner v. Searles, 19 Conn. App. 76 78, 561 A.2d 954 (1989). “It is authorized, and its scope is limited, by the terms of the statute. ” Black v. Universal C.I.T. Credit Corp., 150 Conn. 188, 192, 187 A.2d 243 (1962). “The salutary purpose of the statute is that if a party has a meritorious defense and has been deprived of reasonable opportunity to present it, he ought to be permitted to make it upon another trial.” Bellonio v. V.R. Thomas Mortgage Co., 111 Conn. 103, 105, 149 A. 218 (1930); E.M. Loew’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 612, 153 A.2d 463 (1959); Krooner v. State, 137 Conn. 58, 60, 75 A.2d 51 (1950); Jacobs v. Fazzano, 59 Conn. App. 716, 722, 757 A.2d 1215 (2000).

Section 52-270 provides that a new trial may be granted for the discovery of new evidence according to the usual rules in such cases. “The procedure is not intended to reach errors available on appeal of which the party should have been aware at the time when an appeal might have been taken. . . . It is an additional safeguard to prevent injustice in cases where the usual remedy by appeal does not lie or where, if there is an adequate remedy by appeal, the party has been prevented from pin-suing it by fraud, mistake or accident.” (Citations omitted.) Krooner v. State, supra, 137 Conn. 60. “[Section 52-270] does not furnish a substitute for, nor an alternative to, an ordinary appeal, but applies only when no other remedy is adequate and when in equity and good conscience relief against a judgment should be granted. . . . Necessarily, the statute is applicable only when the error or injustice is of such a type that it can be corrected by the remedy of a new trial.” (Citations omitted; emphasis added; internal quotation marks omitted.) Black v. Universal C.I.T. Credit Corp., supra, 150 Conn. 193-94.

Black and the cases cited therein stand for the proposition that a new trial should be granted only where there is no legal remedy and to remedy injustice after a judgment has been rendered. Until a judgment has been rendered, there can be no reason for a new trial as there is no order or court action that so concludes the rights of the parties that further proceedings cannot affect them. See State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). In the partition action, the rights of the parties have not been concluded because the manner of the partition has not yet been determined. For this reason, Myma LaBow cannot properly file a petition for a new trial in the partition action. We therefore affirm the court’s judgment dismissing the petition, albeit on different grounds.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-270 (a) provides in relevant part: “The Superior Court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases. . . .”

       “We can sustain a right decision although it may have been placed on a wrong ground.” Stapleton v. Lombardo, 151 Conn. 414, 417, 198 A.2d 697 (1964); Quality Sand & Gravel, Inc. v. Planning & Zoning Commission, 55 Conn. App. 533, 540 n.2, 738 A.2d 1157 (1999).

       Robert Rubin, individually, also is a respondent in the present action.

       Rubin was the substitute plaintiff in the partition action.

       In granting Rubin’s motion for summary judgment in the partition action, Judge Fuller presumed that the trust may have been illegal and subject to collateral attack by Myrna LaBow at an appropriate point in the extended litigation between her and Ronald LaBow. He concluded, however, that even if his presumption were correct, “there is no material factual question as to the chronological history of the conveyances [in the partition action,] and several of the special defenses bar all of the counts of the counterclaim as a matter of law.” Judge Fuller concluded that Myrna LaBow had failed to pursue timely any of the remedies available to her to contest the validity of the trust and the legality of Ronald LaBow’s transfers. He also concluded that the majority of the counterclaims in the partition action were barred by the applicable statutes of limitation or by Myrna LaBow’s lack of standing to assert a claim of fraud. Myrna LaBow also failed to prove her counterclaim alleging intentional infliction of emotional distress.

       In the attempted appeal from the partition action, the issue before this court was whether there was a final judgment. In this appeal, the issue is whether a petition for a new trial can lie where there is no final judgment.

       Rubin filed a request to revise the petition to which Myma LaBow objected. No court ruled on the request to revise.

       Judge Moran found that Judge Fuller had rendered judgment on the motion for summary judgment in the partition action in February, 1994, and that pursuant to General Statutes § 52-582, Myrna LaBow had to file her petition for a new trial by February, 1997. Myrna LaBow commenced the petition action in February, 2000.

       At the time she took the appeal, Myma LaBow was proceeding pro se. She has been represented by counsel subsequent to filing her principal brief with this court.

       On appeal, Myrna LaBow claims that the trial court (1) improperly dismissed her petition for a new trial sua sponte, (2) abused its discretion in denying the parties a full trial on the underlying action for partition of real property, (3) was biased in denying her motion for reargument, (4) insulted her in denying her motion for articulation, (5) abused its discretion by ruling in the absence of Rubin and (6) improperly failed to rule on Rubin’s request to revise. We need not consider these claims in view of our disposition of the appeal.

       Ronald LaBow did not appear for oral argument and did not file a supplemental brief.