author: FLYNN, J.

text:
    STATE OF CONNECTICUT v. DONESQUE CHARLES REYNOLDS
    (AC 30776)
    Gruendel, Flynn and Pellegrino, Js.

      Argued September 20, 2010
    officially released February 1, 2011

      Glenn W. Falk, special public defender, for the appellant (defendant).

      Timothy F. Costello, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Anthony Spinella, assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The defendant, Donesque Charles Rey-

nolds, appeals from the judgment of conviction, rendered after a plea of guilty to the part B information, of being a persistent serious felony offender subject to enhanced penalties under General Statutes § 53a-40 (c). The underlying conviction, rendered after a jury trial and subject to the enhanced penalties includes conspiracy to commit identity theft in the third degree in violation of General Statutes §§ 53a-48 and 53a-129d, and conspiracy to commit larceny in the third degree in violation of General Statutes §§ 53a-48 and 53a-124 (a) (2).

The defendant represented himself at trial with the assistance of standby counsel but in this appeal was represented by counsel. The defendant raises the following claims on appeal: (1) his sixth amendment right to a jury trial was violated because he did not knowingly, intelligently and voluntarily waive his right to a jury determination that an extended period of incarceration was in the public interest under General Statutes (Rev. to 2007) § 53a-40 (j), (2) the trial court abused its discretion in denying the defendant’s motion to withdraw his guilty plea before the enhanced sentences were imposed, and (3) the court, after accepting the defendant’s guilty plea to the part B information, failed to make the requisite statutory finding that extended incarceration was in the public interest pursuant to § 53a-40 (j)-

We conclude that the defendant’s guilty plea on the persistent serious felony offender charge set forth in part B of the information necessarily and validly waived his right to a jury determination as to both his guilt under part B of the information and the public interest determination. We also conclude that the court did not abuse its discretion in denying the defendant’s motion to withdraw his plea. We further conclude, however, that the court did not continue to make the then requisite statutoiy finding that extended incarceration is in the public interest. Accordingly, we vacate the part B sentence enhancement imposed and remand this case for further proceedings with direction to the trial court as fact finder to make the finding as to whether extended incarceration is in the public interest pursuant to § 53a-40 (j).

The jury reasonably could have found the following facts. On or about August 23, 2007, someone initiated, by telephone, a loan application with American General Finance, a bank branch located in Manchester. The requested amount of the loan was $4000. In order to initiate a loan with the bank over the telephone, the applicant was required to give his name, date of birth, social security number, a five year employment history, income, and a five year address history. The caller provided the name Jay Turoff, gave his address as 12 Willard Street in Hartford, listed his employment as retired, and provided a telephone number, social security number, and birth date. Upon investigation, the bank teller determined that there was a fraud alert attached to Turoff s name and personal information and called the telephone number listed in the credit report to confirm the validity of the transaction. During the call, the bank teller confirmed that Turoff had not applied for a loan and then called the Manchester police department. Detective Scott McGill of the Manchester police department received the call and established a surveillance operation designed to apprehend the suspects when they appeared at the bank to claim the loan amount. The bank teller proceeded with the normal loan procedures and scheduled an appointment for closing the loan.

A few days later, on August 25, 2007, the defendant, and a male and a female associate traveled into Hartford, where they obtained a fake identification card bearing the name Jay Turoff, Turoff s date of birth, and the male associate’s photograph. Thereafter, the defendant and the two other people drove to the American General Finance branch in Manchester. The defendant and the male associate entered the bank, and the male associate identified himself to the bank teller as Jay Turoff, and identified the defendant as his nephew. The bank teller discussed the application forms while one of his assistants called the police. The police arrived at the bank shortly thereafter and arrested the defendant and the two other people.

On October 3, 2008, the defendant elected to proceed pro se. On October 9,2008, the state charged the defendant with conspiracy to commit identity theft in the third degree in violation of §§ 53a-48 and 53a-129d, and conspiracy to commit larceny in. the third degree in. violation of §§ 53a-48 and 53a-124 (a) (2). On the same day, the state filed a substitute part B information charging the defendant with being a persistent serious felony offender as provided in § 53a-40 (c). The defendant, on the larceny and identity theft charges, represented himself, assisted by standby counsel, at a jury trial in Manchester Superior Court before the court, Bright, J.

On November 14, 2008, the jury found the defendant guilty on each count, and the court rendered judgment in accordance with the verdict. Following the verdict, after consulting with his standby counsel, the defendant pleaded guilty to the part B information charging him as a persistent serious felony offender under § 53a-40 (c). On December 2, 2008, the defendant filed a motion for plea withdrawal pursuant to Practice Book § 39-27 and stated that 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 . . . .” On January 15, 2009, the court, Bright, J., denied the defendant’s motion for plea withdrawal and sentenced the defendant pursuant to § 53a-40 (j) to a total effective sentence of twelve years imprisonment followed by four years special parole. This appeal followed. Additional facts will be set forth where necessary.

“The voluntariness of [a guilty] plea can be determined only by considering all of the relevant circumstances surrounding it.” Brady v. United States, 397 U.S. 742, 749, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970). “The United States Supreme Court has held that for the acceptance of a guilty plea to comport with due process, the plea must be voluntarily and knowingly entered. Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). Boykin set forth three federal constitutional rights of which a defendant must be cognizant prior to entering a guilty plea: (1) the privilege against compulsory self-incrimination; (2) the right to trial by jury; and (3) the right to confront one’s own accusers.” (Internal quotation marks omitted.) State v. Moye, 119 Conn. App. 143, 163, 986 A.2d 1134, cert. denied, 297 Conn. 907, 995 A.2d 638 (2010). “Moreover, [t]he constitutional stricture that a plea of guilty must be made knowingly and voluntarily . . . requires . . . that there be a voluntary waiver during a plea canvass of the right to a jury trial, the right of confrontation and the right against self-incrimination . . . .” (Internal quotation marks omitted.) Id., 164.

I

The defendant first claims that his sixth amendment right to a trial by jury was violated because he did not knowingly, intelligently and voluntarily waive his right to a jury determination that an extended period of incarceration was in the public interest under § 53a-40 (j). Specifically, the defendant argues that, according to State v. Bell, 283 Conn. 748, 931 A.2d 198 (2007), and State v. Gore, 288 Conn. 770, 955 A.2d 1 (2008), he is entitled to a new trial on the part B information and that we should remand the case for further proceedings on the part B information with direction to permit the defendant to withdraw his guilty plea and to elect a jury trial on the part B information because the record contains no indication from the defendant personally that he waived his fundamental right to a jury trial. The state now contends in response that the defendant waived his right to a jury trial pursuant to the principles set forth in a recent Connecticut Supreme Court case, State v. Michael A., 297 Conn. 808, 1 A.3d 46 (2010).

As an initial matter, we note that the defendant seeks to prevail on this unpreserved constitutional claim pursuant to the requirements set forth in State v. Golding, 213 Conn. 233,239-40,567 A.2d 823 (1989). In his motion to withdraw his plea that he made to the trial court, he claimed only lack of knowledge of the charge and that the sentence actually imposed could be imposed. The state concedes, and we agree, that under the particular facts and posture of this case, the defendant’s claim satisfies each of Golding’s two prongs relating to reviewability. It does so because the record is adequate for review and a claim alleging a violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), is of constitutional magnitude alleging a violation of a fundamental right. See State v. Ray, 290 Conn. 602, 618, 966 A.2d 148 (2009).

To determine whether the defendant knowingly, voluntarily and intelligently waived his right to a jury trial on the public interest determination, we must specifically address the following questions: (1) whether the defendant, as part of his November 14, 2008 guilty plea and hearing with respect to part B of the information, knowingly, voluntarily and intelligently waived a jury trial on the public interest determination; and, if so, (2) whether the defendant was entitled to a judicial fact-finding or personal acknowledgement that he met the “character and history” requirement then set forth in § 53a-40 0).

A

To answer the first question, we begin with a brief review of the persistent felony offender statutes and the relevant case law that informs our decision.

In State v. Bell, supra, 283 Conn. 785-813, our Supreme Court concluded that the persistent felony offender statutes violate the principles of Apprendi v. New Jersey, supra, 530 U.S. 466. Specifically, the court in Bell concluded that “[the 2007 revision of General Statutes] § 53a-40 (h) is unconstitutional, to the extent that it does not provide that a defendant is entitled to have the jury make a required finding [that] expose [s] the defendant to a greater punishment than that authorized by the jury’s guilty verdict . . . .” (Internal quotation marks omitted.) State v. Bell, supra, 810. The United States Supreme Court in Apprendi v. New Jersey, supra, 490, held that any fact — other than that of a prior conviction — that increases the maximum punishment to which a defendant may be sentenced must be proved beyond a reasonable doubt to a jury. Subsequently, in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the United States Supreme Court held that in order to comport with the sixth amendment, the government must submit to a jury and prove beyond a reasonable doubt any fact necessary to enhance a sentence beyond a statutory subrange. To cure the constitutional defect and Apprendi violation contained within General Statutes (Rev. to 2007) § 53a-40 (h), our Supreme Court made the public interest determination a necessary element to be determined beyond a reasonable doubt by the jury, rather than the court. State v. Bell, supra, 812.

The court in Bell concluded that “the language and history of the statute support the conclusion that § 53a-40 (h) requires two factual predicates before an enhanced sentence may be imposed — a jury determination that the defendant meets the definition of a persistent offender by virtue of his prior convictions, and a trial court determination that extended incarceration will best serve the public interest, given the defendant’s history and character and the nature of the offenses.” Id., 803-804. The court reasoned that “this court previously has interpreted § 53a-40 [in State v. Velasco, 253 Conn. 210, 218, 751 A.2d 800 (2000), a case decided pre-Apprendi] as prescribing two factual predicates to imposition of the enhanced sentence.” State v. Bell, supra, 800. In sum, the court may not impose an extended sentence unless both factual predicates are satisfied. Id., 801.

After the Supreme Court’s 2007 decision in Bell, the General Assembly accordingly amended § 53a-40, effective January 25, 2008, to eliminate the public interest finding altogether. See Public Acts, Spec. Sess., January, 2008, No. 08-1, § 7. Section 53a-40 (c) remained unchanged; however, the amended version of subsection (j) now provides: “When any person has been found to be a persistent serious felony offender, the court in lieu of imposing the sentence of imprisonment authorized by section 53a-35 for the crime of which such person presently stands convicted, or authorized by section 53a-35a if the crime of which such person presently stands convicted was committed on or after July 1, 1981, may impose the sentence of imprisonment authorized by said section for the next more serious degree of felony.” General Statutes § 53a-40 (j).

We now specifically address the first question of whether the defendant, as part of his November 14, 2008 guilty plea and hearing with respect to part B of the information, knowingly, voluntarily and intelligently waived his right to a jury trial. The defendant claims that the trial court’s canvass does not accord with the standards set forth in State v. Gore, supra, 288 Conn. 788-89, for a knowing, voluntary and intelligent waiver of the right to a jury trial. Specifically, the defendant argues that the trial court never informed the defendant of the right to a jury trial on the public interest determination during the plea canvass or sentencing and, on that basis, it cannot be presumed that he validly waived that right. We disagree.

We begin by setting forth the background of Gore and the standards set forth therein to establish an adequate waiver. “The right to a jury trial in a criminal case is among those constitutional rights which are related to the procedure for the determination of guilt or innocence. The standard for an effective waiver of such a right is that it must be knowing and intelligent, as well as voluntary. ... [A] valid waiver of a constitutional right [is] the intentional relinquishment or abandonment of a known right. . . . This strict standard precludes a court from presuming a waiver of the right to a trial by jury from a silent record. ... In determining whether this strict standard has been met, a court must inquire into the totality of the circumstances of each case.” (Citation omitted; internal quotation marks omitted.) Id., 775-76. We therefore must determine whether the totality of the record furnishes sufficient assurance of a constitutionally valid waiver of the right to a jury trial based on “the facts and circumstances [surrounding the defendant’s] case including the background, experience, and conduct of the accused.” (Internal quotation marks omitted.) State v. Crump, 201 Conn. 489, 503-504, 518 A.2d 378 (1986); State v. Shockley, 188 Conn. 697, 707, 453 A.2d 441 (1982).

In determining such a waiver, “in the absence of a written waiver, the trial court must canvass the defendant briefly to ensure that his or her personal waiver of a jury trial is made knowingly, intelligently and voluntarily.” State v. Gore, supra, 288 Conn. 786-87. The trial court’s canvass must be sufficient to obtain assurance that the defendant “(1) understands that he . . . personally has the right to a jury trial; (2) understands that he . . . possesses the authority to give up or waive the right to a jury trial; and (3) voluntarily has chosen to waive the right to a jury trial and to elect a court trial.” Id., 789. “[I]n the absence of a written waiver, the trial court must canvass the defendant briefly to ensure that his or her personal waiver of a jury trial is made knowingly, intelligently and voluntarily.” (Emphasis added.) Id., 786-87.

The defendant argues that he did not understand the nature of the charges because the defendant believed that he was a persistent larceny offender, not a persistent serious felony offender, and that his older convictions, less serious than manslaughter or robbery, could not be used against him. We are not persuaded.

Here, the defendant pleaded guilty pursuant to an information that explicitly listed § 53a-40 (c) as the governing statute. He pleaded guilty on two counts in direct response to being asked for his pleas on the charge of being a “persistent serious felony offender.” At the plea canvass, the defendant responded in the affirmative when the trial court asked if he understood the nature of the state’s burden in establishing that he was a persistent serious felony offender; that he could be sentenced as though his crimes were class C felonies, rather than class D felonies; and that his total exposure was up to twenty years in prison. Furthermore, the defendant previously had been canvassed by the court on his waiver of the right to counsel, when he chose to proceed pro se on the specific charges in the part B information, namely, violation of § 53a-40 (c). During that canvass the court informed the defendant how those charges could enhance his sentences, for example, from class C felony to class B felony liability and increase his total exposure to twenty years imprisonment on each one of the charges. There is no finding or allegation that the canvass of the defendant’s waiver of a right to counsel was in any way inadequate. This record evidences the defendant’s full awareness of the nature of the charges, including the underlying larceny and identity theft as well as the enhancements sought for each.

Furthermore, there is nothing before us to indicate that the defendant was not of ordinary intelligence and educational background. The defendant previously represented himself in a civil matter and demonstrated familiarity with statutes, and the defendant stated that he knew the elements of the crimes for which he was charged. The defendant has experience with the criminal justice system. The prosecutor represented at sentencing on the part B information that the defendant had thirty convictions, ranging from car theft and possession of firearms to armed robbery and many violations of probation. The defendant said that he understood the nature of what the state would have to prove and what evidence it would have to present against him. The defendant waived a jury trial on some of these prior convictions, thus, evidencing his knowledge of what waiver encompassed. The defendant acknowledged that, by pleading guilty to being a persistent serious felony offender, he was subjecting himself to an enhanced sentence of an additional ten years of imprisonment on each of the underlying charges.

The court permitted the defendant to consult with standby counsel at the hearing on the motion to withdraw the plea. The defendant argues that standby counsel’s advice was not enough to amplify the record for constitutional waiver purposes. At the sentencing hearing, the defendant’s standby counsel, attorney Kirstin B. Coffin, admitted that she could not specifically recall the conversation she had had with the defendant. At the sentencing hearing, attorney Coffin proceeded to state, however, that she did briefly discuss the defendant’s options related to the part B information before he elected to plead guilty. Despite stating that she could not specifically recall the canvass, she still affirmed that she had discussed the defendant’s options with him. It can be presumed that standby counsel reviewed the elements necessary to enhance the defendant’s sentence with the defendant. See State v. Gaston, 86 Conn. App. 218, 860 A.2d 1253 (2004) (proper for court to presume standby counsel had informed defendant as to elements of crime). The defendant has not rebutted this presumption by offering evidence that standby counsel could not later remember the content of her advice. We acknowledge that “the role of standby counsel is essentially to be present with the defendant in court and to supply the limited assistance provided for in Practice Book § 44-5 . . . .” (Internal quotation marks omitted.) State v. Miller, 69 Conn. App. 597, 613, 795 A.2d 611, cert. denied, 260 Conn. 939, 802 A.2d 91 (2002). Practice Book § 44-5 defines the limited role of standby counsel in relevant part: “If requested to do so by the defendant, the standby counsel shall advise the defendant as to legal and procedural matters. ...” We conclude from the record that the defendant understood the consequences of his plea.

The defendant also argues that the trial court’s canvass did not accord with the standards set forth in Gore essentially because the record of the canvass of him by the court mentioned only the required prior convictions and incarceration but did not mention that the jury would also have to pass on whether the enhancement was in the public interest. The court in Gore followed the holding of Boykin v. Alabama, supra, 395 U.S. 243, that “a waiver of a fundamental constitutional right is not to be presumed from a silent record.” (Internal quotation marks omitted.) State v. Gore, supra, 288 Conn. 777. Gore makes clear that even “[i]f the record contained an affirmative indication from the defendant personally that he had decided to waive his right to a jury trial, we would engage in a third level of inquiry to determine whether that waiver was made knowingly, intelligently and voluntarily.” Id., 778 n.8. The requirement of a colloquy on the record “serves three purposes: [1] it more effectively insures voluntary, knowing and intelligent waivers; [2] it promotes judicial economy by avoiding challenges to the validity of waivers on appeal . . . and [3] it emphasizes to the defendant the seriousness of the decision . . . .” (Citation omitted; internal quotation marks omitted.) Id., 787.

The circumstances of the present case do not present a “silent record” and constitute more than a bare waiver of a jury trial. When the court canvassed the defendant on his pleas, the following colloquy ensued:

“The Court: . . . Have you had any alcohol, medicine or drugs today, or anything that would affect your ability to understand what you were doing?

“[The Defendant]: No, sir.
“The Court: Now, you’re representing yourself in this matter, and is it your desire to continue to represent yourself in connection with the part B information?
“[The Defendant]: You mean for—
“The Court: For this purpose.
“[The Defendant]: For this purpose?
“The Court: Yes.
“[The Defendant]: Yes, I’ll continue to represent myself.
“The Court: And Ms. Coffin is here as standby counsel, and you’ve had an opportunity to consult with her in that role as standby counsel. Are you satisfied with that consultation?
“[The Defendant]: Yes, I am, sir.
“The Court: All right, and do you understand the nature of what the state would have to prove to convict you of being a serious — a persistent serious felony offender and what evidence it has to present against you?
“[The Defendant]: Yes, sir.
“The Court: All right. I want to go over with you the rights you’re giving up by pleading guilty to being a persistent serious felony offender on these two counts. You’re giving up your right to a court or jury trial; your right to remain silent; your right to continue to plead [not] guilty and make the state prove these charges beyond a reasonable doubt. You’re giving up your right to have your attorney or yourself ask questions of the witnesses presented against you or the evidence presented against you; your right to present your own evidence, including testifying yourself if you wanted to; and your right to present any kind of defense of the charges of being a persistent serious felony offender. Do you understand that by pleading guilty to these charges, you’re giving up all of those rights?
“[The Defendant]: Yes, I do.” (Emphasis added.)

For all of the foregoing reasons, we conclude that the trial court’s plea canvass meets the standards set forth in Gore for a knowing, intelligent and voluntary waiver. The defendant himself directly affirmed to the court that he understood the nature of what the state would have to prove to convict him. of being a persistent serious felony offender.

We next address the defendant’s argument that the trial court never informed him of the right to a jury trial on the public interest determination during the plea canvass or sentencing, and, on that basis, it cannot be presumed that he validly waived that right. A recent case decided by our Supreme Court, State v. Michael A., supra, 297 Conn. 808, informs us of the effect of a guilty plea on the scope of the defendant’s entitlement to a jury determination under the persistent serious felony offender statute and, thus, affects the application of Bell to the present case. In Michael A., the court concluded that the defendant had waived his right to a jury trial on the public interest factor on the basis of his nolo contendere plea with respect to part B of the information and the subsequent canvass conducted by the court. State v. Michael A., supra, 820-21. The court concluded that the nolo contendere plea, and the waiver of rights that accompanied it, necessarily encompassed the public interest factor. Id., 821. The court reasoned that “the persistent felony offender statute is a sentence enhancement provision, and not an independent criminal offense . . . .” (Internal quotation marks omitted.) Id. The court relied on State v. Velasco, supra, 253 Conn. 224, in its reasoning, stating that “in pleading guilty to a persistent offender charge, the accused waives several constitutional rights, including the right to a jury determination of ultimate facts that trigger the enhanced sentence . . . .” (Internal quotation marks omitted.) State v. Michael A., supra, 821. The plea of guilty in the present case, accordingly, has the same effect as the plea of nolo contendere, and, thus, we conclude that the defendant’s guilty plea necessarily encompassed a waiver of the right to a jury trial on the public interest factor.

The court’s conclusion in Michael A. is consistent with its decision in Bell, with respect to the requirement in Bell of two separate factual prerequisite findings before imposition of an enhanced sentence. State v. Bell, supra, 283 Conn. 800. Bell is distinguishable from Michael A., however, in that the defendant in Bell did not submit a guilty plea or nolo contendere plea but was found guilty by a jury on part B of the information and, therefore, was not canvassed to determine whether he was waiving his right to a jury trial on the public interest determination. Indeed, the court in Michael A. “recognized that distinction and emphasized that, in those cases in which the defendant chooses to waive his right to a jury trial under § 53a-40, the court may continue to make the requisite finding.” (Internal quotation marks omitted.) State v. Michael A., supra, 297 Conn. 824. Under the defendant’s nolo contendere plea in Michael A., therefore, he waived his right to a jury trial, not only with respect to the factual predicate of whether he was a persistent serious felony offender but also with respect to the issue of whether his extended incarceration was in the public interest. Id., 821.

Certain facts which occurred from the time of briefing to the time of oral argument are pertinent here. In its brief, the state first conceded that the defendant’s waiver of his right to a jury trial on the persistent offender charge was defective and that standby counsel was inadequate. However, at oral argument the state narrowed the concession as a result of the subsequent decision of our Supreme Court in Michael A. and now contends that under the language in Michael A., the defendant validly waived his right to a jury trial on the public interest determination. The state now concedes only that there is an absence of a finding by the trial court or an acknowledgement by the defendant that prolonged incarceration would serve the public interest. In response, the defendant concedes that the court advised the defendant of the maximum penalty when he pleaded guilty to the persistent serious felony offender charge, but argues that the court did not indicate that any additional findings on the public interest factor would be necessary, by the jury or the court, if the jury trial was waived. The defendant specifically argues that Michael A. is distinguishable from the present case and does not control the outcome of this case. We disagree.

In Michael A., as in the present case, the defendant was not specifically notified in the plea canvass of his right to a jury determination on whether it was in the public interest to enhance his sentence. In Michael A., “the defendant, through the trial court’s thorough canvass, acknowledged his understanding of the consequences of his plea — namely, exposure to expended incarceration — and, thus ‘received real notice of the true nature of the charge against him ....’” Id., 825. The court in Michael A. determined that “the defendant’s uncontested understanding of the consequences of his plea overcame the absence of specific disclosure of the defendant’s particular right to a jury trial on the public interest determination.” Id., 825-26. Under this precise provision in Michael A., the trial court’s recitation in the present case of the elements of the crime and the court’s canvass of the defendant about the consequences of his plea with respect to the part B information were sufficient and did provide the defendant with notice of the true nature of the crimes and the potential for an enhanced sentence of twenty years imprisonment.

Both Michael A. and the present case involve the persistent offender statutes, which are part of the same statutory scheme. Neither defendant was specifically notified of his right to a jury determination on the public interest factor. Accordingly, the defendant’s plea of guilty operates as a waiver of his right to a jury trial, not only with respect to the factual predicate of whether he was a persistent serious felony offender but also with respect to the issue of whether his extended incarceration was in the public interest. See id., 821.

We conclude, therefore, that the defendant’s sixth amendment right to a jury trial was not violated because his guilty plea on part B of the information resulted in a waiver of that right, including a jury determination as to whether an extended period of incarceration was in the public interest under § 53a-40 (j). The defendant has failed to carry his burden of showing under State v. Golding, supra, 213 Conn. 239-40, that a constitutional violation clearly exists and deprived the defendant of a fair trial.

B

Having determined that the defendant knowingly, voluntarily, and intelligently waived his right to a jury trial on the public interest determination, we now turn to our second question of whether the defendant was entitled to a judicial fact-finding or personal acknowledgement that he meets the “character and history” requirement set forth in § 53a-40 (j) before a sentence enhancement could be imposed. The defendant claims that the trial court failed to make such a finding. We conclude that the defendant was entitled to such a finding and agree with the defendant that the court failed to make such requisite finding.

After a proper waiver of a right to a jury trial under § 53a-40 the court may make the requisite finding. State v. Bell, supra, 283 Conn. 812. Specifically, the court in Bell held that “in those cases in which the defendant chooses to waive his right to a jury trial under § 53a-40, the court may continue to make the requisite finding.” Id. Additionally, the court properly may “impose an enhanced sentence if the defendant admits to the fact that extended incarceration is in the public interest.” Id. For example, in Michael A., it was undisputed that the trial court, and not a jury, made the public interest determination at the sentencing hearings. State v. Michael A., 297 Conn. 820. In the present case, the defendant argues that the court only alluded to the factual issue of whether the defendant had the requisite prior conviction and period of incarceration to be considered a persistent serious felony offender. The state concedes that this requisite finding did not take place. We agree. After the defendant made his guilty plea to the charge of being a persistent serious felony offender, the trial court did not make such a finding, nor did the defendant stipulate or acknowledge that extended incarceration is in the public interest, as required by Bell. Therefore, the case is remanded for further proceedings with direction for the trial court to make the appropriate finding whether or not extended incarceration is in the public interest or for the defendant to make the appropriate acknowledgement that extended incarceration is in the public interest.

II

The defendant also claims that the court abused its discretion in denying the pro se defendant’s motion to withdraw his guilty plea before the enhanced sentences were imposed. We disagree.

As a preliminary matter, we identify the legal principles and the standard of review relevant to our discussion. “Practice Book § [39-27] specifies circumstances under which a defendant may withdraw a guilty plea after it has been entered. [0]nce entered, a guilty plea cannot be withdrawn except by leave of the court, within its sound discretion, and a denial thereof is reversible only if it appears that there has been an abuse of discretion. . . . 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. Siminausky, 112 Conn. App. 33,35-36,961 A.2d 1005, cert. denied, 290 Conn. 918, 966 A.2d 234 (2009).

“The court is required to permit the withdrawal of a guilty plea upon proof of any ground set forth in Practice Book § [39-27] . . . [but] [w]hether 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. Winer, 69 Conn. App. 738, 744, 796 A.2d 491, cert. denied, 261 Conn. 909, 806 A.2d 50 (2002). Practice Book § 39-26 states in relevant part, that “[a]fter acceptance, the judicial authority shall allow the defendant to withdraw his or her plea upon proof of one of the grounds in [s]ection 39-27 . . . .” Practice Book § 39-27 lists the grounds for permitting the withdrawal of a guilty plea, including: “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 . . . .” Practice Book § 39-27 (2).

A review of the transcript reveals that the defendant was canvassed thoroughly before the court accepted his guilty plea to the part B information on November 14, 2008. “A court is permitted to rely on a defendant’s responses during a plea canvass.” State v. Hanson, 117 Conn. App. 436, 449, 979 A.2d 576 (2009), cert. denied, 295 Conn. 907, 989 A.2d 604 (2010). For the same reasons supporting our conclusion that the trial court’s plea canvass meets the standards set forth in Gore, we conclude that the plea was voluntary and entered with knowledge of the charges and with knowledge that the sentences actually imposed could be imposed.

We agree with the defendant that the trial court failed to make an explicit finding that an extended period of incarceration would be in the public interest, as required by § 53a-40 (j). Under Michael A., however, it does not affect the voluntariness of the plea or provide grounds for withdrawal because “the defendant’s uncontested understanding of the consequences of his plea overcame the absence of specific disclosure of the defendant’s particular right to a jury trial on the public interest determination.” State v. Michael A., supra, 297 Conn. 825-26.

We conclude that the trial court properly found that the defendant knew the charges against him at the time he pleaded guilty and did not abuse its discretion when it denied his motion to withdraw his pleas.

The judgment on the part B information only is reversed and vacated and the case is remanded for further proceedings with direction to the trial court as fact finder to make the finding whether extended incarceration is in the public interest or for the defendant to make the appropriate acknowledgement and, depending on that finding or acknowledgement, to determine whether an enhanced sentence is appropriate.

In this opinion the other judges concurred.

       The defendant has neither appealed nor briefed on appeal any challenge to the underlying conviction of conspiracy to commit identity theft and conspiracy to commit larceny.

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”
      General Statutes § 53a-129d provides: “(a) A person is guilty of identity theft in the third degree when such person commits identity theft, as defined in section 53a-129a.
      “(b) Identity theft in the third degree is a class D felony.”
      Pursuant to General Statutes § 53a-35a (8), the sentence of imprisonment for a class D felony is ordinarily a term of from one to five years.

       General Statutes § 53a-124 provides in relevant part: “(a) A person is guilty of larceny in the third degree when he commits larceny, as defined in section 53a-119, and ... (2) the value of the property or service exceeds one thousand dollars ....
      “(c) Larceny in the third degree is a class D felony.”

       All citations to § 53a-40 Q) in this opinion refer to General Statutes (Rev. to 2007) § 53a-40 (j) unless otherwise noted.

       Ultimately, attorney Kirstín B. Coffin served as the defendant’s standby counsel during trial and during his pleas on the part B information while the defendant continued to represent himself pro se.

       General Statutes § 53a-40 (c) provides: “A persistent serious felony offender is a person who (1) stands convicted of a felony, and (2) has been, prior to the commission of the present felony, convicted of and imprisoned under an imposed term of more than one year or of death, in this state or in any other state or in a federal correctional institution, for a crime. This subsection shall not apply where the present conviction is for a crime enumerated in subdivision (1) of subsection (a) of this section and the prior conviction was for a crime other than those enumerated in subsection (a) of this section.”

       The sentence was structured as follows: six years imprisonment plus two years special parole for each charge, to be served consecutively, for a total effective sentence of twelve years imprisonment and four years special parole. The effect of the sentence enhancement was to increase the sentence on each charge by one year.

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .”

       The statute in effect at the time of the crime was § 53a-40 (j), which provided: “When any person has been found to be a persistent serious felony offender, and the court is of the opinion that such person’s history and character and the nature and circumstances of such person’s criminal conduct indicate that extended incarceration will best serve the public interest, the court in lieu of imposing the sentence of imprisonment authorized by section 53a-35 for the crime of which such person presently stands convicted, or authorized by section 53a-35a if the crime of which such person presently stands convicted was committed on or after July 1, 1981, may impose the sentence of imprisonment authorized by said section for the next more serious degree of felony.” This subsection was amended by No. 08-1 of the 2008 Public Acts to eliminate the public interest finding. See Public Acts, Spec. Sess., January, 2008, No. 08-1, § 7.

       The court in Bell specifically addressed General Statutes (Rev. to 2007) § 53a-40 (h). Its precedent is applicable here because the language of § 53a-40 (j), as applicable to this case, tracks the same language and employs the same scheme as § 53a-40 (h).

       It is worth noting that subsection (h) of § 53a-40, the statute in Bell, provides that the court “shall impose” an enhanced sentence, leaving no discretion to the court. Subsection (j), the subsection in the present case, provides that upon making the public interest determination, the court “may impose” the enhanced sentence, conferring full discretion on the court. This distinction, however, is immaterial to the determination that § 53a-40 requires two factual predicates before an enhanced sentence is imposed. See footnote 10 of this opinion. The legislative history of § 53a-40 also supports the conclusion that the public interest determination is, as stated in State v. Velasco, 253 Conn. 210, 228, 751 A.2d 800 (2000), an ultimate factual predicate to the imposition of an enhanced sentence. See State v. Bell, supra, 283 Conn. 802-803.

       In interpreting Velasco, the court in Bell concluded that “the prior conviction appears to be the triggering fact in the same sense that our death penalty scheme provides that certain facts make an offense death penalty eligible; see General Statutes § 53a-54b (enumerating capital felonies); and then requires that an additional fact — an aggravating fact — be found by the jury beyond a reasonable doubt before the death penalty actually may be imposed. General Statutes § 53a-46a (f) and (i).” State v. Bell, supra, 283 Conn. 801.

       We note that in the canvass concerning the defendant’s waiver of his right to counsel the court erroneously stated that the part B information would enhance his sentences from C felony to B felony liability. The maximum penalty for a B felony is twenty years and, since there were two enhancements, the maximum exposure would have been forty years. The court’s error in reference to the enhancement to B felony liability is not harmful because the enhancements are both felonies, not misdemeanors or some lesser type of infraction, and the court correctly computed his maximum exposure at twenty years. The defendant has not raised this as an appellate issue.

       Further, the court in Gore reasoned that “the defendant’s silence [was] too ambiguous to permit the inference that he . . . waived such a fundamental right.” State v. Gore, supra, 288 Conn. 782.

       Importantly, “[a] defendant’s personal assertion of a waiver of the right to a jury trial is not conclusive evidence that the waiver was made knowingly, intelligently and voluntarily, but its absence is a fatal blow to the validity of a waiver.” State v. Gore, supra, 288 Conn. 782; see also State v. Crump, supra, 201 Conn. 497-505.

       The defendant’s claim in Bell was that the court, rather than the jury that had found him to be a persistent dangerous felony offender, improperly had made the finding that extended incarceration would be in the public interest. State v. Bell, supra, 283 Conn. 752-53.

       See footnote 10 of this opinion.

       See part I A of this opinion.


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    REBECCA MERRILL v. NRT NEW ENGLAND, INC., ET AL.
    (AC 30972)
    Bishop, Bear and Mihalakos, Js.

      Argued November 15, 2010
    officially released February 1, 2011

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

      Thomas E. Crosby, for the appellees (named defendant et al.).
   Opinion

BISHOP, J.

The plaintiff, Rebecca Merrill, appeals from the judgment of the trial court dismissing her action against the defendants, NRT New England, LLC, doing business as Coldwell Banker Residential Brokerage; NRT New England, Inc., doing business as Coldwell Banker Residential Brokerage; Karen A. Godfrey and V. Holly Hoyt. On appeal, the plaintiff claims that the court improperly determined that it lacked jurisdiction over her claims. We agree with the plaintiff and, accordingly, reverse the judgment of the trial court.

The plaintiffs action stems from a real estate transaction in which she purchased a house that was allegedly misrepresented as a “comer lot.” The plaintiff sought damages for breach of contract, breach of warranty, negligent and intentional misrepresentation and violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. On or about June 30, 2008, the defendants were served with a summons and complaint dated June 29, 2008, bearing a return date of July 22, 2008. Prior to the return date, the defendants’ counsel sent an appearance and a request to revise, both dated July 16, 2008, to the plaintiffs counsel. He also attempted to file an appearance for the defendants and a request to revise with the clerk’s office, but the clerk’s office returned those documents to him, presumably because the plaintiff had not yet returned the writ of summons and complaint to the court. On August 20, 2008, the plaintiff filed with the court the following documents: the summons dated June 29, 2008, with the July 22, 2008 return date crossed out and the date of August 26, 2008, written in; the complaint dated June 29, 2008, with the July 22, 2008 return date crossed out and the date of August 26,2008, written in; the marshal’s return of service; an “amendment of process”; and a revised complaint dated August 12,2008. The plaintiff s counsel indicated that he changed the return date because the marshal did not return process to him until after the sixth day preceding July 22, 2008, making it impossible for counsel to file it with the court six days prior to the return date in accordance with General Statutes § 52-46a, and that he did so as a matter of right pursuant to General Statutes § 52-72 and Practice Book § 10-59. On September 8, 2008, the defendants’ counsel filed with the court an appearance and a request to revise.

On October 24, 2008, the defendants filed a motion to dismiss the plaintiffs claims, alleging insufficient service of process and lack of personal jurisdiction. On January 30, 2009, the plaintiff objected to the defendants’ motion, claiming that the defendants were properly served and that they had waived any claim for lack of personal jurisdiction because they filed their motion to dismiss beyond the thirty day period prescribed by our rules of practice. By memorandum of decision filed February 18, 2009, the court granted the defendants’ motion to dismiss on the ground that it lacked jurisdiction because “there never was a return made for the June 29, 2008 summons and complaint.” The plaintiff filed a motion to reargue, which was denied. This appeal followed.

On appeal, the plaintiff claims that the court improperly determined that it did not have jurisdiction to hear her claims. The plaintiffs claim in this regard is twofold. First, she claims that the court erroneously found that she never returned to the court the summons and complaint that she had served on the defendants. She also claims that the defendant’s challenge to the court’s jurisdiction was untimely. In response, the defendants maintain that the court lacked jurisdiction over them. They also claim that the service on them was not simply deficient but that they were never served with the documents filed with the court. Therefore, they claim, the court lacked subject matter jurisdiction over the plaintiffs claims. Because subject matter jurisdiction can be raised at any time, the defendants claim that the timing of their motion to dismiss is immaterial. For the reasons that follow, we disagree that the court lacks subject matter jurisdiction, and, to the extent that any defect in service may have implicated personal jurisdiction over the defendants, they waived any such claim by not timely filing a motion to dismiss.

“A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. . . . [0]ur review of the trial court’s ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo. . . . Factual findings underlying the court’s decision, however, will not be disturbed unless they are clearly erroneous. . . . The applicable standard of review for the denial of a motion to dismiss, therefore, generally turns on whether the appellant seeks to challenge the legal conclusions of the trial court or its factual determinations.” (Intemal quotation marks omitted.) Deutsche Bank National Trust Co. v. Bia-lobrzeski, 123 Conn. App. 791, 795, 3 A.3d 183 (2010).

The defendants’ jurisdictional argument regarding subject matter jurisdiction is premised on the trial court’s finding that they were never served with the documents that the plaintiff filed with the court. We disagree. Although the return date on the documents filed with the court was altered by the plaintiff by crossing it off and writing in a new one, the summons and complaint filed with the court are otherwise, in all respects, the same as those served on the defendants. Thus, the defendants’ contention and the trial court’s conclusion that they were not served with the documents filed with the court is belied by the record.

At the outset of our analysis, we review the distinctions between personal and subject matter jurisdiction, “[jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy. ... A defect in process, however, such as an improperly executed writ, implicates personal jurisdiction, rather than subject matter jurisdiction. . . . [W]hen a particular method of serving process is set forth by statute, that method must be followed. . . . Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction. . . . The jurisdiction that is found lacking, however, is jurisdiction over the person, not the subject matter. . . .

“[Although we acknowledge that mandatory language may be an indication that the legislature intended a time requirement to be jurisdictional, such language alone does not overcome the strong presumption of jurisdiction, nor does such language alone prove strong legislative intent to create a jurisdictional bar. ... [A] conclusion that a time limit is subject matter jurisdictional has very serious and final consequences. It means that, except in very rare circumstances ... a subject matter jurisdictional defect may not be waived . . . may be raised at any time, even on appeal . . . and that subject matter jurisdiction, if lacking, may not be conferred by the parties, explicitly or implicitly. . . . A challenge to a court’s personal jurisdiction, however, is waived if not raised by a motion to dismiss within thirty days of the filing of an appearance. Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999) ([t]he rule specifically and unambiguously provides that any claim of lack of jurisdiction over the person as a result of an insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days [after the filing of an appearance] . . .); see also Practice Book § 10-32 ([a]ny claim of lack of jurisdiction over the person . . . is waived if not raised by a motion to dismiss). Therefore, we have stated many times that there is a presumption in favor of subject matter jurisdiction, and we require a strong showing of legislative intent that such a time limit is jurisdictional.” (Citations omitted; internal quotation marks omitted.) Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 31-32, 848 A.2d 418 (2004).

As noted, § 52-46a establishes the requirement to return process in civil actions to the clerk of the Superior Court at least six days before the return date. Our Supreme Court has held that the failure to comply with the mandate of § 52-46a “renders the proceeding voidable, rather than void, and subject to [dismissal].” Coppola v. Coppola, 243 Conn. 657,662, 707 A.2d281 (1998). General Statutes § 52-72 (a) provides in relevant part that “[a]ny court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective . . . .’’In Coppola, the plaintiff properly served the defendant, but returned the process to the court on the return date instead of six days prior to the return date as required by § 52-46a. Coppola v. Coppola, supra, 660. The plaintiff argued that “the term ‘defective’ as used in § 52-72 encompasses a failure to return the process at least six days prior to the return date, thus rendering the return date amendable pursuant to the statute.” Id., 664. In response, the defendant contended that the return date was not defective but that the plaintiff was late in returning the process to court and that that deficiency was a flaw that § 52-72 was not intended to address. Id. The Coppola court acknowledged that § 52-72 is “a remedial statute that must be liberally construed in favor of those whom the legislature intended to benefit.” Id. Relying on its earlier holding in Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 642 A.2d 1186 (1994), the court concluded: “The construction of the term ‘defective’ to permit an amendment of the return date to correct the plaintiffs failure to return process six days prior to the return day effectuates the statute’s remedial purpose and statutory policy of amend[ing] . . . otherwise incurable defects that go to the court’s jurisdiction.” Coppola v. Coppola, supra, 665. The court further noted: “The plaintiffs motion to amend would not deprive the defendant of any substantive rights and would simply correct the return date so that the return of process met the statutory six day period required by § 52-46a. It is undisputed that the defendant received actual notice of the cause of action within the statutory time frame, suffered no prejudice as a result of the late return of process, and already had filed an appearance and had served the plaintiff with interrogatories. We [refuse] to permit the recurrence of the inequities inherent in eighteenth century common law that denied a plaintiffs cause of action if the pleadings were technically imperfect.” (Internal quotation marks omitted.) Id., 666.

The facts and reasoning of Coppola are instructive to the issue we face. Here, the plaintiff, without leave of the court, amended the return date in an effort to conform to § 52-46a. In doing so, as in Coppola, the plaintiff did not deprive the court of subject matter jurisdiction; rather, she filed an action subject to dismissal for want of personal jurisdiction. The plaintiffs amendment of the return date, although unartful, did not deprive the defendants of any substantive rights, nor did the defendants suffer any prejudice as they had already filed an appearance and a request to revise. In sum, because the procedural facts do not present a failure of service but, rather, defective process, the court’s subject matter jurisdiction was not implicated.

The defendants’ contention that the court lacked personal jurisdiction over them is also unavailing. Because the defendants did not file their motion to dismiss challenging the court’s personal jurisdiction within thirty days after their counsel filed an appearance, they waived their opportunity to challenge the court’s jurisdiction on the basis of defective service. Therefore, the court improperly granted the defendants’ motion to dismiss.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       The plaintiff also named the former property owner, Marilyn Noyes, as a defendant. Noyes did not appear in this action in the trial court and is not a party to this appeal. Thus, we refer to the other defendants as such in this opinion.

       The plaintiff claimed that she had mailed a copy of all of her court filings to defense counsel from whom she previously had received an appearance form.

       General Statutes § 52-46a provides in relevant part: “Process in civil actions returnable to the Supreme Court shall be returned to its clerk at least twenty days before the return day and, if returnable to the Superior Court... to the clerk of such court at least six days before the return day.”

       General Statutes § 52-72 provides in relevant part: “(a) Any court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective, upon payment of costs taxable upon sustaining a plea in abatement . . . .”

       Practice Book § 10-59 provides in relevant part: “The plaintiff may amend any defect, mistake or informality in the writ, complaint or petition and insert new counts in the complaint, which might have been originally inserted therein, without costs, during the first thirty days after the return day. ...”

       In Concept Associates, Ltd., the return date on the plaintiffs summons was a Thursday instead of a Tuesday, in violation of General Statutes § 52-48. Concept Associates, Ltd. v. Board of Tax Review, supra, 229 Conn. 620.

       In support of their position that the court lacked subject matter jurisdiction, the defendants in the present case rely on cases in which there was a lack of service; see Bicio v. Brewer, 92 Conn. App. 158, 884 A.2d 12 (2005); or cases in which the right to appeal was derived from statute,, thus mandating strict compliance with the jurisdictional requirements of the statute; see Tarnopol v. Connecticut Siting Council, 212 Conn. 157, 561 A.2d 931 (1989), and Basilicato v. Dept, of Public Utility Control, 197 Conn. 320, 497 A.2d 48 (1985). The defendants’ reliance on those cases, however, is misplaced because, here, the plaintiff’s right to appeal was not constrained by statutory limitations requiring strict compliance, and, as noted, the defendants, in fact, were served.

       In granting the defendants’ motion to dismiss, the trial court relied on two Superior Court cases, Brague v. Nightingale, Superior Court, judicial district of Litchfield, Docket No. CV-00-0087593-S (October 11, 2002), and Szeligowski v. Lowe’s Cos., Superior Court, judicial district of New Haven, Docket No. CV-06-5004607-S (January 23, 2007). In those cases, the courts did not allow an amendment of the return date because it was impossible to amend the return date and still comply with the two month limitation set by General Statutes § 52-48 (b). We are not faced with that issue in the case at hand.

       Additionally, we note that the defendants filed a request to revise prior to filing their motion to dismiss in which they challenged the court’s jurisdiction over them on the basis of insufficient service of process. Practice Book § 10-6 requires that such a motion to dismiss be filed prior to any request to revise the complaint.


author: DiPENTIMA, C. J.

text:
    STATE OF CONNECTICUT v. CARLOS POLANCO
    (AC 31516)
    DiPentima, C. J., and Alvord and Mihalakos, Js.

      Argued October 21, 2010
    officially released February 1, 2011

      Daniel M. Erwin, certified legal intern, with whom was Elizabeth M. Inkster, senior assistant public defender, for the appellant (defendant).

      Melissa Patterson, deputy assistant state’s attorney, with whom were Andrew J. Slitt, deputy assistant state’s attorney, and, on the brief, Patricia M. Froehlich, state’s attorney, and Mark A. Stabile, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, C. J.

The defendant, Carlos Polanco, appeals from the judgment of conviction, rendered after a jury trial, of possession of a narcotic substance with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), possession of a narcotic substance with intent to sell in violation of General Statutes § 2 la-277 (a) and possession of drug paraphernalia in violation of General Statutes § 2 la-267 (a). On appeal, the defendant claims that (1) the state violated his right to due process under the Connecticut constitution as a result of the destruction or loss of potentially exculpatory evidence and (2) the sentence imposed by the court violated the prohibition against double jeopardy. We agree only with the defendant’s double jeopardy claim, and we affirm the judgment in all other respects.

In the spring of 2008, the statewide narcotics task force focused an investigation on narcotics trafficking from an apartment building located at 287 Main Street in Willimantic. After receiving information from a confidential informant, officers arranged for a controlled purchase of cocaine from apartment 107. Approximately one month later, two additional controlled purchases of cocaine occurred at apartment 107. As a result of this investigation, officers obtained search warrants for apartment 107 and for the person of the defendant. These warrants were executed on April 22, 2008.

On that day, the defendant was stopped while driving toward Route 6. The search of the defendant’s person revealed approximately $100 in cash and no narcotics. Officers transported the defendant to 287 Main Street and executed the search warrant for apartment 107. Inside the apartment were Adolfo Cruz and Julyssa Delvalle. During the search, a cellular telephone belonging to either Cruz or Delvalle rang, and police Detective Robert Rosado answered it. Acting in an undercover capacity, Rosado arranged for a narcotics purchase, telling the caller to “come by.” This individual, later identified as Donna Johnson, arrived shortly thereafter and, after attempting to purchase cocaine, was placed under arrest.

A search of the apartment revealed the presence of inositol powder, a substance commonly used as a “cutting agent” by those selling narcotics. Officers also seized a digital scale, used to weigh and package narcotics for sale, and plastic bags with cut comers that are used for the packaging of cocaine for sale. Officers also found a quantity of cocaine, consistent with sales rather than personal use, placed in the ceiling tiles in the common area of the building just outside of apartment 107. Above the ceiling tiles of the apartment was approximately $1500 in cash. The members of the statewide narcotics task force also seized a wireless camera system that, in their experience, was used to avoid police attention.

Following a jury trial, the defendant was convicted of (1) possession of a narcotic substance with intent to sell by a person who is not drug-dependent, (2) possession of a narcotic substance with intent to sell and (3) possession of drug paraphernalia. With respect to the first count, the court sentenced the defendant to ten years incarceration, five of which are mandatory, and ten years special parole. As to the second count, the court sentenced.the defendant to ten years incarceration. The court stated: “Those are concurrent and as a matter of law should be merged with sentencing.” As to the third count, the court ordered an unconditional discharge. Accordingly, the defendant received a total effective sentence of ten years incarceration, five of which axe mandatory, and ten years special parole. This appeal followed.

I

The defendant first claims that the state violated his right to due process under the Connecticut constitution as a result of the destruction or loss of potentially exculpatory evidence. Specifically, he claims that the loss of a photograph taken during the booking process deprived him of his right to due process pursuant to article first, § 8, of the Connecticut constitution. We are not persuaded.

The following additional facts are necessary for the resolution of the defendant’s claim. Sergeant Ralph Chappell was part of the statewide narcotics task force in March and April, 2008. Prior to the execution of the two search warrants, Chappell went to 287 Main Street by himself to observe the building. He recalled that the shades were “pulled aside” at apartment 107 and that he was able to observe movement inside. As it got darker outside, he was able to see more activity in the interior of the apartment because of the lighting. Chappell testified that he observed “a male wearing a specific sweatshirt that stood out to me as gray with some black stripes on it.” He then watched as that individual, the defendant, got into a green vehicle and drove away.

During cross-examination, Chappell again testified that he had observed an individual wearing a “very distinctive sweatshirt [that] was gray with black stripes on it.” He saw the individual wearing that sweatshirt exit the building and could see that he was the person they were investigating.

Defense counsel then showed Chappell a photograph that had been admitted into evidence. This photograph depicted Cruz sitting in the apartment while wearing a sweatshirt with black sleeves. Running down the sleeves was a graphic, in white, of the bones of the arm. On the torso of the shirt, which was primarily white, there was a graphic of the breastbone and rib cage. Chappell agreed that the “stripes on this sweatshirt going down the arms of [Cruz were not] similar to the stripes that [he] described that [the defendant] was wearing . . . .” Chappell further testified that the gray sweatshirt worn by the defendant had thick lateral stripes that were black or very dark in color.

During redirect examination, the prosecutor stated: “I have to admit [that] I got a little bit confused on the colloquy between yourself and defense counsel. The stripes on the sweatshirt [the defendant] was wearing, your answer seems to contradict your hand movement. Did the stripes go up and down or side to side?” Chappell stated that the stripes on the defendant’s sweatshirt went up and down, and that he had “used the wrong word” in describing them as lateral.

The next day, defense counsel informed the court regarding a missing piece of evidence, namely, the booking photograph of the defendant. She further indicated that steps had been taken to determine the proper witness or witnesses to testify in regard to the missing photograph.

After the state rested, the defendant called Daniel Greenwood, a state police trooper, as his first witness. Greenwood testified that on April 22, 2008, he participated in the booking process involving the defendant. Specifically, he assisted with fingerprinting and photographing the defendant. To perform these tasks, Greenwood used a live scan system, which consists in part of a computer to process digital fingeiprints and photographs. Pursuant to a subpoena, Greenwood checked the live scan machine at the state police barracks to find the photograph taken of the defendant on April 22, 2008, but was unable to locate it.

During cross-examination by the state, Greenwood again stated that he was unable to locate the photograph of the defendant taken during the booking process. He explained that once the fingerprints and photographs are completed, the next step of the procedure is to “send” the information to a larger, off-site database. Greenwood explained that if the “send” button is not activated, then information, such as the defendant’s booking photograph, would remain on the live scan machine used that night and that the data would be purged at some point. On redirect examination, Greenwood testified that he could not recall whether he had sent the data of the defendant’s booking to the larger off-site database.

Outside the presence of the jury, defense counsel stated that, in her motion for discovery, she had requested any booking photographs of the defendant. She then made an offer of proof that Chappell had testified that the sweatshirt the defendant had worn on April 22, 2008, looked nothing like the one worn by Cruz. She then argued that a photograph of the defendant taken by the department of correction two days after his arrest showed him wearing a sweatshirt similar to the one worn by Cruz and dissimilar to the one described by Chappell. The court granted the defense a continuance to obtain information from the department of correction and the department of public safety.

At the next day of trial, the defense called Annett Gordon, a records specialist with the department of correction, as a witness. She testified with respect to two photographs of the defendant that were taken when he was admitted to the correctional facility. These photographs depicted the defendant from his head to just below his shoulders, wearing a dark colored sweatshirt with a white stripe down each sleeve. She further testified that the defendant was admitted to the facility on April 23, 2008, and that the date of the photographs was April 24, 2008.

During closing argument, defense counsel stated that Chappell had testified that, during his surveillance, he saw a person through the apartment window wearing a “distinctive gray sweatshirt with black stripes” and that this individual left in the green vehicle. Counsel then pointed out that in the department of correction’s photograph, the defendant was not wearing a gray sweatshirt with black stripes and reminded the jury that the booking photograph had been purged and was not available. Counsel concluded by stating that the discrepancy between the sweatshirt worn by the defendant in the photograph taken when he was admitted to the correctional facility and Chappell’s testimony created reasonable doubt.

In response, the prosecutor stated to the jury: “[Defense counsel] commented about how when . . . Chappell saw [the defendant] in the window and followed him and arrested him about somehow the shirt that he had on and in this department of correction photo didn’t exactly match up with the description that . . . Chappell gives about what he saw the defendant was wearing through a window with the shade down partially fourteen months earlier. Well, who knows why that was. Maybe the defendant put on another shirt while he was in the custody of the correction department in the two days — in the time he was first taken into custody and the time that he appeared for that photo. Maybe [Chappell] doesn’t exactly remember what he was wearing when he saw him through that window fourteen months earlier. . . . There is some concealment there, and it’s reasonable to conclude [that] the officer’s description isn’t exactly on point fourteen months later, isn’t exactly what he saw looking through that window.”

On appeal, the defendant claims that the state’s loss of the booking photograph deprived him of his right to due process under the Connecticut constitution. Specifically, he claims that without this photograph, he was unable to challenge effectively Chappell’s identification of him. The state counters that the loss of the booking photograph did not deprive the defendant of his right to due process. We agree with the state.

The defendant acknowledges that his claim was not preserved at trial. He therefore seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We agree that the record is adequate for review and that the claim is of constitutional magnitude. See State v. Weaver, 85 Conn. App. 329, 350, 857 A.2d 376, cert. denied, 271 Conn. 942, 861 A.2d 517 (2004). We conclude, however, that the claims fails under the third prong of Golding because the defendant has failed to demonstrate that a constitutional violation clearly exists that clearly deprived him of a fair trial.

This is not a case in which the defendant argues that exculpatory evidence was withheld by the state. The defendant’s claim is that the state failed to preserve evidence, namely, the booking photograph, that might have been useful to him. See State v. Conn, 234 Conn. 97, 106, 662 A.2d 68 (1995). In his brief, the defendant acknowledges that the booking photograph “was lost as the result of either a mistake ... or the . . . disposal policy.” In the absence of bad faith there is no violation of due process pursuant to the federal constitution under these circumstances. See id., 107; see generally State v. Morales, 232 Conn. 707, 657 A.2d 585 (1995).

Our Supreme Court has “enunciated the standard for determining whether the failure of the police to preserve evidence constitutes a due process violation under our state constitution. In State v. Morales, [supra, 232 Conn. 727], we rejected the federal standard of Arizona v. Youngblood, [488 U.S. 51, 58, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988)], and held that, under our state constitution, the good or bad faith of the police in failing to preserve potentially useful evidence cannot be dis-positive of whether a criminal defendant has been deprived of due process of law. Rather, in determining whether a defendant has been afforded due process of law under the state constitution, the trial court must employ the [State v. Asherman, 193 Conn. 695, 724, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985)] balancing test, weighing the reasons for the unavailability of the evidence against the degree of prejudice to the accused. More specifically, the trial court must balance the totality of the circumstances surrounding the missing evidence, including the following factors: the materiality of the missing evidence, the likelihood of mistaken interpretation of it by witnesses or the jury, the reason for its nonavailability to the defense and the prejudice to the defendant caused by the unavailability of the evidence.” (Internal quotation marks omitted.) State v. Valentine, 240 Conn. 395, 417, 692 A.2d 727 (1997); see also State v. Joyce, 243 Conn. 282, 300-301, 705 A.2d 181 (1997), cert. denied, 523 U.S. 1077, 118 S. Ct. 1523, 140 L. Ed. 2d 674 (1998).

The first factor of the Asherman test is the materiality of the lost evidence. “The measure of materiality is whether there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” (Internal quotation marks omitted.) State v. Morales, 90 Conn. App. 82, 90, 876 A.2d 561, cert. denied, 275 Conn. 924, 883 A.2d 1250 (2005); see also State v. Estrella, 277 Conn. 458, 484-85, 893 A.2d 348 (2006). We conclude that such a reasonable probability does not exist here. First, we note that it is pure speculation on the part of the defendant to assume that the sweatshirt worn at the time of his photograph at the correctional facility was the same item of clothing he wore at the time of his arrest. See, e.g., State v. Weaver, supra, 85 Conn. App. 351 (lack of record of content of missing second page of witness’ statement limited appellate review); State v. Coleman, 41 Conn. App. 255, 265-66, 675 A.2d 887 (1996) (speculation to assume that sample could have been tested for DNA matter), rev’d on other grounds, 242 Conn. 523, 700 A.2d 14 (1997); State v. Morales, 39 Conn. App. 617, 623-24, 667 A.2d 68 (speculation to assume tests could have been performed and whether such tests would have revealed scientifically useful evidence had jacket been preserved), cert. denied, 235 Conn. 938, 668 A.2d 376 (1995). There was no evidence regarding the clothing worn by the defendant at the time of the booking photograph. Accordingly, we cannot make any assumption regarding the clothing worn by the defendant at the time his booking photograph was taken. See State v. Estrella, supra, 486. We therefore are unable to conclude that the missing evidence was material.

The second Asherman factor requires consideration of “the likelihood of mistaken interpretation of [the missing evidence] by witnesses or the [trier of fact] . . . .” (Internal quotation marks omitted.) State v. Morales, supra, 90 Conn. App. 90. “[T]he likelihood of such a mistake [by the jury and witnesses] can be minimized at the trial by permitting testimony on the issue . . . .” (Internal quotation marks omitted.) State v. Jones, 50 Conn. App. 338,357, 718 A.2d 470 (1998), cert. denied, 248 Conn. 915, 734 A.2d 568 (1999); see also State v. Gonzalez, 206 Conn. 213, 225, 537 A.2d 460 (1988).

The jury heard testimony from Greenwood regarding the loss of the booking photograph. Specifically, Greenwood stated that he took the booking photograph of the defendant but failed to ensure that it was sent to the larger database for preservation. Additionally, as noted in the state’s brief, defense counsel argued to the jury that, on the basis of the difference between Chappell’s testimony and the correctional facility photograph, the jury could have found that Chappell had misidentified the defendant. See State v. Weaver, supra, 85 Conn. App. 352. Accordingly, we conclude that the second Asherman factor does not weigh in favor of the defendant.

The third Asherman factor addresses the reasons for the unavailability of the evidence and requires an examination of the motive underlying the loss of the evidence. State v. Morales, supra, 90 Conn. App. 91. “In examining the motives . . . our courts have considered such factors as whether the destruction was deliberate and intentional rather than negligent ... or done in bad faith or with malice ... or with reckless disregard ... or calculated to hinder the defendant’s defense, out of other animus or improper motive, or in reckless disregard of the defendant’s rights.” (Internal quotation marks omitted.) Id. The defendant does not dispute that the loss of the photograph was caused by Greenwood’s mistake in failing to transfer the booking photograph to a larger database. The record does not suggest that the state lost the evidence by reason of bad faith or improper motive.

The fourth Asherman factor addresses the prejudice caused to the defendant as a result of the failure to maintain the booking photograph. See id. “In measuring the degree of prejudice to an accused caused by the unavailability of the evidence, a proper consideration is the strength or weakness of the state’s case, as well as the corresponding strength or weakness of the defendant’s case.” (Internal quotation marks omitted.) Id.

The police had conducted three undercover drug purchases from apartment 107, where the defendant frequently was present. Chappell testified that he observed the defendant in apartment 107 and then saw him exit the building and enter the green vehicle. Chappell further testified that during the investigation, he had been shown a photograph of the defendant’s driver’s license and that he had identified the defendant as the individual inside apartment 107, who then exited the apartment and entered the green vehicle. During the search of apartment 107, police discovered cocaine and cash above the ceiling tiles, inositol, a digital scale, plastic bags and rubber bands consistent with the sale of narcotics and a wireless camera system. While the officers were present, an individual arrived at the apartment and attempted to purchase illegal drugs. Further, Delvalle testified that she had observed the defendant measure, package and sell cocaine from apartment 107. Delvalle also witnessed the defendant place an item in the ceiling tiles on the day of the defendant’s arrest in the same location where the officers later recovered a quantity of cocaine. As a result of the cumulative effect of the evidence presented at trial, we conclude that the fourth Asherman factor does not weigh in favor of the defendant. See State v. Morales, supra, 232 Conn. 727 (“if the evidence would have been merely cumulative or would have failed to rebut evidence that was already available, the defendant may have suffered little prejudice, and his right to due process of law under article first, § 8, of the Connecticut constitution may not have been violated”).

Having applied the Asherman factors, we determine that the defendant has failed to establish that the loss of the booking photograph deprived him of his state constitutional right to due process. As such, his claim fails under the third prong of Golding.

II

The defendant next claims that the sentence imposed violated the prohibition against double jeopardy. Specifically, he argues that the court improperly merged the sentences, rather than the conviction on the counts of possession of a narcotic substance with intent to sell by a person who is not drug-dependent and possession of a narcotic substance with intent to sell. We agree with the defendant.

The following additional facts are necessary for the resolution of the defendant’s claim. As noted previously, the defendant was convicted of possession of a narcotic substance with intent to sell by a person who is not drug-dependent in violation of § 2 la-278 (b) and possession of a narcotic substance with intent to sell in violation of § 21a-277 (a). During sentencing, the court stated: “Count one, possession with intent to sell cocaine by a [person who is not drug-dependent], ten years to serve, five years of which are mandatory, ten years special parole. Second count, possession with intent to sell cocaine, ten years to serve. Those are concurrent and as a matter of law should be merged with sentencing.”

On appeal, the defendant argues that the sentence imposed by the court violates the federal constitutional prohibition against double jeopardy, specifically, the protection against multiple punishments for the same offense. See U.S. Const., amend. V. Specifically, he claims that because possession of a narcotic substance with intent to sell under § 2 la-277 (a) is a lesser offense included within the crime of possession of a narcotic substance with intent to sell by a person who is not drug-dependent under § 21a-278 (b), and, because both charges arose from the same act or transaction, the sentence for possession with intent to sell must be vacated. The defendant concedes that this claim is unpreserved and requests review pursuant to State v. Golding, supra, 213 Conn. 239-40. We agree that this claim warrants Golding review. See State v. Mullins, 288 Conn. 345, 377-78, 952 A.2d 784 (2008).

“The federal and state constitutions prohibit multiple punishments if: (1) the charges arise out of the same act or transaction; and (2) the charged crimes are the same offense. State v. Chicano, 216 Conn. 699, 706, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991). [W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). Only the relevant statutes, charging documents and bill of particulars are used to evaluate this test, not the evidence presented at trial.” (Internal quotation marks omitted.) State v. Mullins, supra, 288 Conn. 378.

In the present case, both narcotics charges arose from the same act or transaction. The information charging the defendant with both crimes alleged that the crimes were committed on the same day, in the same location and with the same narcotic. The information alleged “that on or about the twenty-second day of April, 2008, in the town of Willimantic . . . [the defendant] did possess with the intent to sell a narcotic substance . . . .” Further, it is well established that possession of narcotics with intent to sell is a lesser offense included within the crime of possession of narcotics with intent to sell by a person who is not drug-dependent. State v. Bradley, 60 Conn. App. 534, 545, 760 A.2d 520, cert. denied, 255 Conn. 921, 763 A.2d 1042 (2000); see also State v. Hammond, 257 Conn. 610, 613, 778 A.2d 108 (2001). In other words, it is not possible to commit the crime of possession of a narcotic substance with intent to sell by a person who is not drug-dependent without first committing the crime of possession of a narcotic substance with intent to sell.

Our Supreme Court has instructed that “[t]he remedy when a defendant has been sentenced for both a greater and lesser included offense is to merge the conviction for the lesser included offense with the conviction for the greater offense and to vacate the sentence for the lesser included offense.” State v. Mullins, supra, 288 Conn. 379. Accordingly, the defendant’s conviction of possession of a narcotic substance with intent to sell in violation of § 21a-277 (a) must be combined with his conviction of possession of a narcotic substance with intent to sell by a person who is not drug-dependent in violation of § 2 la-278 (b), and his sentence for possession of narcotics with intent to sell must be vacated.

The judgment is reversed in part and the case is remanded with direction to merge the conviction of possession of narcotics with intent to sell with the conviction of possession of narcotics with intent to sell by a person who is not drug-dependent and to vacate the sentence on the conviction of possession with intent to sell. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Police Officer Daniel Gugliotti testified as follows: “Inositol is a white powder [that] can be purchase[d] at the supplement stores .... It’s a white powder the drug dealers commonly use so they can cut the cocaine with it. They will buy a quantity of cocaine, buy an ounce of cocaine, and mix an ounce of powder — an ounce of cocaine is maybe $800 to $1000 an ounce [and inositol] cost maybe $5 — then mix it all together, and it will double the quantity of drugs they get and double the profit.”

       At trial, defense counsel requested a continuance in order to subpoena other evidence to establish what the defendant was wearing when he was arrested. The court granted this request and the defendant did not ask for any other remedy, such as a dismissal of the charges or a suppression of the testimony regarding his appearance. See State v. Morales, 232 Conn. 707, 728 n.24, 657 A.2d 585 (1995). On appeal, the state argues that, as a result, the defendant has waived any challenge to the missing photograph as a result of induced error. We disagree with the state’s waiver argument.

       “[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the [government]. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) . . . .” (Citations omitted; internal quotation marks omitted.) State v. Conn, 234 Conn. 97, 106, 662 A.2d 68 (1995).

       In Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988), the United States Supreme Court stated: “We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.”

       The record does not reveal that defense counsel requested that the court provide the jury with an adverse inference instruction.

       Although the defendant argues that Delvalle was not a credible witness because of the favorable treatment she received from the state in exchange for her testimony, we note that this information was presented to the jury during the evidentiary phase of the trial. Additionally, the court provided the jury with an instruction regarding the credibility of informant testimony.

       We note that the judgment file indicates that the defendant was convicted on both narcotics charges and received concurrent sentences with respect to those charges.

       On the basis of this controlling precedent from our Supreme Court, we need not discuss the defendant’s alternate argument that his conviction on the lesser included offense must be vacated.