author: Peters, C. J.

text:
    In re Grand Jury Investigation By Judge John M. Alexander
    (13188)
    Peters, C. J., Healey, Glass, Covello and Hull, Js.
    Argued March 1
    decision released April 12, 1988

      Dominic J. Squatrito, with whom, on the brief, were Nancy Jeanne Johnson and Barry D. Guliano, for the appellant (petitioner Journal Publishing Company, Inc.).

      PaulF. Thomas, with whom, on the brief, was Jacob D. Zeldes, for the appellee (intervenor Neil Ellis).

      A. Susan Peck, with whom, on the brief, was Hubert J. Santos, for the appellee (intervenor Leonard Seader).

      JohnM. Massameno, assistant state’s attorney, with whom, on the brief, were John J. Kelly, state’s attorney, and Roseanne Wagner, deputy assistant state’s attorney, for the appellee (state).
   Peters, C. J.

The sole issue in this case is whether, despite intervening legislative changes in grand jury procedures, the statute that was in effect at the time when an investigatory grand jury was authorized governs a subsequent request for disclosure of the grand jury’s report. The petitioner, the Journal Publishing Company, Inc., filed a motion for the public disclosure of the grand jury report, associated transcripts and evidentiary documentation that had been filed with the Hartford Superior Court by Judge John M. Alexander. The trial court permitted a number of interested parties to intervene, both in support of and in opposition to the motion for disclosure. After a hearing, the trial court concluded that it lacked jurisdiction to hear the motion. The petitioner has appealed. We find error and remand for further proceedings.

The relevant facts are undisputed. On July 18, 1985, Judge Stoughton ordered a grand jury inquiry to determine, pursuant to General Statutes (Rev. to 1985) § 54-47, whether there was probable cause to believe that crimes had been committed in Enfield. Judge Shaughnessy was initially appointed to serve as grand juror, but was subsequently replaced by Judge Alexander. The grand jury filed its final report with Judge Barall in Hartford Superior Court on November 24, 1986.

Before this grand jury investigation was completed, the General Assembly enacted far-reaching reforms in the procedures governing the investigatory grand jury system. Effective October 1,1985, § 54-47 was repealed and its provisions replaced by Public Acts 1985, No. 85-611, codified as General Statutes §§ 54-47a through 54-47h.3 In 1986, the General Assembly enacted clarifying legislation to ensure that the authority of investigatory grand juries duly designated prior to October 1, 1985, pursuant to the repealed § 54-47, would continue “until the conclusion of such inquiry and a final report has been filed with the court pursuant to said section.” Public Acts 1986, No. 86-317, § 1 (a). This court accordingly held, in State v. Blasko, 202 Conn. 541, 543, 522 A.2d 753 (1987), that the legislature had manifested its intention not to revoke the authority of, nor to alter the procedures governing, investigatory grand juries that had been properly authorized before October 1, 1985.

Although the Alexander grand jury had been duly authorized before October 1, 1985, the trial court, Byrne, J., concluded that the petition for disclosure was governed by the provisions of Public Acts 1985, No. 85-611, § 4. General Statutes § 54-47e. The court drew a distinction between the proceedings of the grand jury itself, and proceedings that involved questions arising after the grand jury had completed its assignment by filing its report. As to the former, the governing statute continued to be the repealed § 54-47, but, as to the latter, the court determined that the new act should govern. Since the disclosure petition was filed subsequent to the filing of the grand jury report, the court held that it had no jurisdiction to act, because under § 54-47e only a panel of judges is authorized to decide “when . . . disclosure . . . is deemed . . . to be in the public interest.” Accordingly, the court denied the petition.

The petitioner’s appeal asks us to resolve two specific issues: (1) did the trial court have jurisdiction to decide the motion for disclosure; and (2) what is the standard by which such a motion for disclosure should be decided? In our view, these issues must be resolved in accordance with the governing provisions of the old § 54-47, rather than the new § 54-47e. Accordingly, the trial court was in error in concluding that it lacked jurisdiction to determine the petition for disclosure, and should have required the petitioner to make the showing of particularized need that this court articulated as the proper standard in In re Final Grand Jury Report Concerning the Torrington Police Department, 197 Conn. 698, 709-12, 501 A.2d 377 (1985).

It is common ground among the parties that the Alexander grand jury, duly constituted before October 1, 1985, was obligated to conduct its proceedings and prepare its report in accordance with the provisions of the repealed § 54-47. State v. Blasko, supra. The dispositive question presented by this appeal is whether the legislature intended a different statute to govern public access to the report, transcript and other documentation that this grand jury filed with the Hartford Superior Court. We are persuaded that no such bifurcation was intended. As a matter of principle, this conclusion follows from our holding in In re Final Grand Jury Report Concerning the Torrington Police Department, supra, 709, that public disclosure of grand jury proceedings must be regulated with an eye to “the recognized importance of secrecy in the proper functioning of the grand jury system.” As a matter of practicality, it is unlikely that the legislature would have intended to have a three judge panel authorize the disclosure of a report of a grand jury proceeding when no three judge panel had had any prior contact with the origins and scope of the grand jury investigation. Indeed, the cross-references in § 54-47e to §§ 54-47c and 54-47d underscore that the legislature understood the panel that determines disclosure to have had prior oversight responsibility for all aspects of the investigatory grand jury process.

Once it is decided that the repealed § 54-47 governs all proceedings relating to the Alexander grand jury, including disclosure, the specific issues raised by the petitioner’s appeal need little further discussion. Under the old § 54-47, a single judge of the Superior Court must determine whether to order disclosure of all or part of the grand jury’s report, transcripts, or other documentation. In arriving at its determination, the court must apply the standard of particularized need that we articulated in In re Final Grand Jury Report Concerning the Torrington Police Department, supra, 711-12. See also Commissioner v. Freedom of Information Commission, 204 Conn. 609, 624-26, 529 A.2d 692 (1987). The petitioner suggests that a different standard applies because, in a footnote in In re Final Grand Jury Report Concerning the Torrington Police Department, supra, 713 n.10, we indicated that a petition for disclosure must be decided “according to the statute that was in effect at the time that the trial court was asked to rule” on the petitions. We have, however, determined that “the statute that was in effect” for this grand jury, when the trial court ruled on this petition, was the repealed § 54-47. Accordingly, any person seeking disclosure of any record of these proceedings must meet the standard of particularized need.

There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       The Hartford Courant Company and the Manchester Herald were permitted to intervene to join the moving petitioner in seeking public disclosure. William Boudah, John Castle, Neil Ellis, Paul Fox, Edward T. Lynch, Leonard Seader and an unidentified witness who had testified before the grand jury were permitted to intervene to oppose public disclosure.

       “[General Statutes (Rev. to 1985)] Sec. 54-47. investigations into commission of crime, (a) Whenever it appears to the superior court for any judicial district that the administration of justice requires an investigation to determine whether or not there is probable cause to believe that a crime or crimes have been committed within the judicial district, said court may order an inquiry to be made into the matter, to be conducted before any judge, state referee, or any three judges of said court designated by it.
      “(b) The chief state’s attorney and the deputy chief state’s attorney may also apply to the chief court administrator for an order that an inquiry be made to determine whether or not there is probable cause to believe that a crime or crimes have been committed. If the chief court administrator is satisfied from the application and any other papers or evidence submitted in support thereof that the administration of justice requires such an inquiry, he shall order that it be made and shall appoint a judge, a state referee or any three judges of the superior court to conduct the inquiry, with the assistance of the chief state’s attorney, deputy chief state’s attorney or any state’s attorney or assistant state’s attorney.
      “(c) Such inquiries shall be conducted in public or private as said court or chief court administrator orders.
      “(d) The attendance of witnesses and the production of documents at such inquiries may be compelled by subpoena, signed by any official authorized to issue such process.

        “(e) If any witness properly summoned fails to appear or to produce any documents included in the subpoena, or if he fails to answer any proper question, the judge, referee or judges conducting the inquiry may report the matter to the state’s attorney for the judicial district wherein the investigation is being conducted and such state’s attorney may file a complaint setting forth the facts at any criminal session of the superior court in such judicial district. The court shall thereupon issue a citation to the witness to appear before said court and show cause why he should not be punished as for a contempt, and if, after hearing, the court finds that he failed to appear without due cause or failed to produce any document properly to be presented to the judge, state referee or judges conducting the investigation or failed to answer any proper question in the course of the investigation, it may punish him as it might a witness failing to appear, to produce a document properly to be considered or to answer a proper question before the court.
      “(f) Witnesses may be examined by the judge, state referee or judges conducting the inquiry, by the state’s attorney or assistant state’s attorney or by any other attorney or attorneys appointed by the court for such purpose. The official stenographer of such superior court or his assistant shall record any testimony so taken. At any such hearing a witness shall have a right to counsel and shall be informed of such right by the official conducting the inquiry.
      “(g) At the conclusion of such inquiry the judge, referee or judges conducting the inquiry shall file with the court a report and the court shall direct whether, and to what extent, the report shall be made available to the public or interested parties. Any transcript of testimony taken at the inquiry shall likewise be filed with the court and it shall have the same powers with reference to it as it has with reference to the report; provided any person accused of crime as a result of the inquiry shall have access at all reasonable times to the transcript of his own testimony given by him in such inquiry.”
      3 General Statutes §§ 54-47a through 54-47h provide: “Sec. 54-47a. compelling TESTIMONY OF WITNESS. IMMUNITY FROM PROSECUTION, (a) Whenever in the judgment of the chief state’s attorney, a state’s attorney or the deputy chief state’s attorney, the testimony of any witness or the production of books, papers or other evidence of any witness (1) in any criminal proceedings involving narcotics, arson, bribery, gambling, election law violence, felonious crimes of violence or any violation which is an offense under the provisions of title 25, before a court or grand jury of this state or (2) in any investigation conducted by an investigatory grand jury as provided in sections 54-47b to 54-47g, inclusive, is necessary to the public interest, the chief state’s attorney, the state’s attorney, or the deputy chief state’s attorney, may, with notice to the witness, after the witness has claimed his privilege against self-incrimination, make application to the court for an order directing the witness to testify or produce evidence subject to the provisions of this section.
      “(b) Upon the issuance of the order such witness shall not be excused from testifying or from producing books, papers or other evidence in such case or proceeding on the ground that the testimony or evidence required of him may tend to incriminate him or subject him to a penalty or forfeiture. No such witness may be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is compelled to testify or produce evidence, and no testimony or evidence so compelled, and no evidence discovered as a result of or otherwise derived from testimony or evidence so compelled, may be used as evidence against him in any proceeding, except that no witness shall be immune from prosecution for perjury or contempt committed while giving such testimony or producing such evidence. Whenever evidence is objected to as inadmissible because it was discovered as a result of or otherwise derived from compelled testimony or evidence, the burden shall be upoon the person offering the challenged evidence to establish a source independent of the compelled testimony or evidence.
      “Sec. 54-47b. investigatory grand jury, definitions. For the purposes of sections 54-47a to 54-47h, inclusive:
      “(1) ‘Applicant’ means any judge of the superior court, appellate court or supreme court, the chief state’s attorney or a state’s attorney who makes an application to a panel of judges for an investigation into the commission of a crime or crimes.
      “(2) ‘Crime or crimes’ means (A) any crime or crimes involving corruption in the executive, legislative or judicial branch of state government or in the government of any political subdivision of the state, (B) fraud by a vendor of goods or services in the medical assistance program under Title XIX Of the Social Security Act Amendments of 1965, as amended, (C) any violation of chapter 949c and (D) any other class A, B or C felony for which the chief state’s attorney demonstrates that he has no other means of obtaining sufficient information as to whether a crime has been committed.
      “(3) ‘Investigatory grand jury’ means a judge, constitutional state referee or any three judges of the superior court, other than a judge designated by the chief justice to serve on the panel, appointed by the chief court administrator to conduct an investigation into the commission of a crime or crimes.
      “(4) ‘Panel of judges’ or ‘panel’ means a panel of three superior court judges designated by the chief justice of the supreme court from time to time to receive applications for investigations into the commission of crimes in accordance with the provisions of sections 54-47a to 54-47h, inclusive, one of whom may be the chief court administrator.
      “Sec. 54-47c. application for investigation into commission of crime, (a) Any judge of the superior court, appellate court or supreme court, the chief state’s attorney or a state’s attorney may make application to a panel of judges for an investigation into the commission of a crime or crimes whenever such applicant has reasonable belief that the administration of justice requires an investigation to determine whether or not there is probable cause to believe that a crime or crimes have been committed.
      “(b) Each application for an investigation into the commission of a crime or crimes shall be made in writing upon oath or affirmation to a panel of judges. Each application shall include the following information: (1) The identity of the applicant and his authority to make such application; (2) a full and complete statement of the facts and circumstances relied upon by the applicant to justify his reasonable belief that the investigation will lead to a finding of probable cause that a crime or crimes have been committed; (3) a full and complete statement of the facts concerning all previous applications known to the applicant, made to any panel of judges, for investigation of any one or more of the same criminal offenses involving any of the same persons specified in the application, including the action taken by the panel on each such application; and (4) such additional testimony or documentary evidence in support of facts in the application as the panel of judges may require. If the application is made by the chief state’s attorney or a state’s attorney, it shall also include a full and complete statement of facts showing that other normal investigative procedures with respect to the alleged crime have been tried and have failed or reasonably appear to be unlikely to succeed if tried or be too dangerous to employ.
      “Sec. 54-47d. appointment of investigatory grand jury, duration AND SCOPE OF investigation, (a) If the panel approves the application and orders an investigation into the commission of a crime or crimes, the chief court administrator shall (1) appoint an investigatory grand jury to conduct the investigation and (2) designate the court of the judicial district where any motions to quash and any contempt proceedings shall be heard and conducted and any findings and records of the investigation shall be filed.
      “(b) Each order authorizing the investigation into the commission of a crime or crimes by the panel shall specify: (1) The date of issuance of the order, (2) the period of time within which the investigation is to be conducted, provided in no event shall the investigation be longer than six months from the date the chief court administrator appoints the investigatory grand jury to conduct the investigation, unless an application for an extension of time is filed and granted pursuant to subsection (c) of this section, (3) the scope of the investigation, and (4) its reasons for finding that the administration of justice requires an investigation to determine whether or not there is probable cause to believe that a crime or crimes have been committed. The panel shall retain a copy of the order and the original application and shall transmit to the investigatory grand jury, appointed pursuant to subsection (a) of this section, the original order and a copy of the application filed with the panel.
      “(c) The investigatory grand jury may make an application to the panel of judges for an extension of time within which to conduct its investigation or for an amendment to the scope of its investigation. The application for extension or amendment shall set forth the reasons for the necessity of such extension or amendment and, in addition, shall contain the findings thus far made. No more than two extensions or amendments of an order may be granted by the issuing panel. The period of any extension shall be no longer than the panel deems necessary to achieve the purposes for which it was granted and in no event shall any extension be for a period longer than six months.
      “Sec. 54-47e. sealing of order and application, investigation conducted in private. Anyorder authorizing the investigation into the commission of a crime or crimes and any application filed with the panel pursuant to section 54-47c or subsection (c) of section 54-47d shall be sealed. Any investigation by the investigatory grand jury shall be conducted in private, provided the panel, by a majority vote, may disclose the fact that any matter has been referred for an investigation by a grand jury and may order the investigation or any portion thereof to be public when such disclosure or order is deemed by the panel to be in the public interest.
      “Sec. 54-47f. conduct of investigation, testimony of witnesses. (a) The investigatory grand jury, in conducting the investigation, may (1) seek the assistance of the chief state’s attorney or state’s attorney who filed the application, or his designee, (2) appoint an attorney to provide assistance if a judge of the superior court, appellate court or supreme court filed the application or (3) appoint any other attorney to provide assistance when necessary in the interest of justice.
      “(b) The attendance of witnesses and the production of documents at such investigations may be compelled by subpoena, signed by any official authorized to issue such process.
      “(c) If any witness properly summoned fails to appear or to produce any documents included in the subpoena, or if he fails to answer any proper question, the investigatory grand jury conducting the investigation may report the matter to the state’s attorney for the judicial district which has been designated in subsection (a) of section 54-47d unless such state's attorney is the applicant or has been appointed to assist in such investigation, in which case the investigatory grand jury shall report the matter to the chief state’s attorney, and such state’s attorney or chief state’s attorney, as the case may be, may file a complaint setting forth the facts at any criminal session of the superior court in such judicial district. The court shall thereupon issue a citation to the witness to appear before the court and show cause why he should not be punished as for a contempt, and if, after hearing, the court finds that he failed to appear without due cause or failed to produce any document properly to be presented to the investigatory grand jury or failed to answer any proper question in the course of the investigation, it may punish him as it might a witness failing to appear, to produce a document properly to be considered or to answer a proper question before the court.
      “(d) Witnesses may be examined by the investigatory grand jury conducting the investigation or by any attorney or attorneys appointed by such investigatory grand jury for such purpose. At the hearing, the official conducting the investigation shall inform the witness that he has the right to have counsel present and to consult with such counsel.
      “(e) The official conducting the investigation shall inform any witness who is a target of the investigation that he is a target and shall advise him that he has the right under the constitution of the United States and the constitution of Connecticut not to be compelled to be a witness, or to give evidence, against himself.
      “(f) Any attorney appointed to assist in conducting the investigation shall disclose to the investigatory grand jury any exculpatory information or material in his possession, custody or control concerning any person who is a target of the investigation.
      “(g) An official stenographer of the superior court or his assistant shall record any testimony taken at the investigation.
      “Sec. 54-47g. FINDING AND RECORD OF INVESTIGATION. ACCESS TO TESTIMONY. (a) Within sixty days of the conclusion of the investigation, the investigatory grand jury conducting such investigation shall file its finding, and the stenographer shall file any record of the investigation, with the court of the judicial district designated in subsection (a) of section 54-47d. Such finding shall state whether or not there is probable cause to believe that a crime or crimes have been committed. The finding and record of the investigation shall be sealed, provided the panel, by a majority vote, may disclose such finding and record when such disclosure is deemed by the panel to be in the public interest.
      “(b) Any witness, upon request, may have access at all reasonable times to the record of his own testimony unless the administrative judge or his designee finds after a hearing and for good cause shown that it is not in the best interest of justice to grant the witness access to his testimony.
      “(c) A person accused of a crime as a result of the investigation shall be permitted to have access, at all reasonable times, to the record of his own testimony.
      “Sec. 54-47h. report. In January of each year, the panel of judges appointed pursuant to section 54-47b shall report to the chief court administrator, who .shall in turn report to the chief justice, governor and general assembly, the following information with respect to applications made during the preceding calendar year: (1) The number of applications for an investigation into the commission of a crime or crimes filed with the panel; (2) the number of applications approved by the panel; and (3) the number of applications approved for extensions of time or amendments to the order.”

       In view of our disposition of this appeal, we do not need to decide whether there is any difference of substance between the particularized need standard of General Statutes § 54-47 and the public interest standard of General Statutes § 54-47e.


source: Caselaw Access Project

author: Santaniello, J. Callahan, J.,

license: Public Domain

text:
    State of Connecticut v. Neal Taylor
    (13211)
    Healey, Shea, Callahan, Covello and Santaniello, Js.
    Argued December 10, 1987
    decision released April 19, 1988

      Stephanie Clarke, deputy assistant public defender, with whom, on the brief, was Elizabeth M. Inkster, assistant public defender, for the appellant (defendant).

      Julia DiCocco Dewey, assistant state’s attorney, with whom, on the brief, was David Gold, for the appellee (state).
   Santaniello, J.

On June 10, 1986, the defendant, Neal Taylor, pleaded guilty to the crimes of larceny in the third degree in violation of General Statutes § 53a-124, forgery in the third degree in violation of General Statutes § 53a-140, and criminal impersonation in violation of General Statutes § 53a-130. The agreed upon recommendation was a sentence of no more than three years, the defendant to retain the right to withdraw the pleas if the sentencing court were to impose a greater sentence. At sentencing, which took place on July 25,1986, the court imposed a total effective sentence of five years suspended after two and one-half years with probation for three years. The defendant filed a motion for modification of the sentence which was denied by the court.

Thereafter, the defendant filed an amended petition for a writ of habeas corpus claiming, inter alia, that his due process rights as guaranteed by the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution had been violated as a result of the sentencing court’s failure to impose a sentence of no more than three years, and as a result of the sentencing court’s failure to allow him to withdraw his pleas. The habeas court found, inter alia, that his rights had been prejudiced by the imposition of an effective sentence greater than that agreed to, and ordered the court to vacate the sentences and either impose an effective sentence of not more than three years, or allow the defendant to withdraw his pleas. The court, upon resentencing, vacated the original sentences and imposed a total effective sentence of three years.

The defendant appealed, claiming that the increase in the term of incarceration from two and one-half to three years, without an articulation of the reasons for that increase, violated his due process rights under the doctrine of North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), and State v. Sutton, 197 Conn. 485, 498 A.2d 65 (1985), cert. denied, 474 U.S. 1073, 106 S. Ct. 833, 88 L. Ed. 2d 804 (1986). The issue, as framed by the defendant, is: “[Wjhether the defendant was denied his rights to due process of law under the fourteenth amendment to the U. S. Constitution and article first, section eight of the Connecticut Constitution when the trial court, on remand for resentencing following a habeas corpus proceeding, resentenced the defendant to a term of three years imprisonment without articulating any objective information concerning identifiable conduct on the part of the defendant?”

This court must determine whether the resentencing procedure followed by the court on remand is governed by the dictates of North Carolina v. Pearce, supra, and its progeny, which were followed by this court in State v. Sutton, supra. In North Carolina v. Pearce, supra, the court examined the constitutional constraints imposed on a court which metes out a greater sentence upon retrial than that which the defendant originally received. After holding that neither the equal protection clause nor the double jeopardy provision imposes an absolute bar to a harsher sentence upon reconviction, the court considered the impact of the due process clause on such a position. Id., 723-26. Where a conviction has been set aside, the action of a court in imposing a harsher sentence upon reconviction for the purpose of punishing a defendant for exercising his rights in seeking to have the conviction set aside is a “flagrant” violation of due process of law. Id., 723-24. Due process requires that vindictiveness must not enter into resentencing that results from a successful attack on a defendant’s conviction. Id., 725. A defendant’s fear of such vindictive behavior may unconstitutionally deter the exercise of the right to appeal or to attack collaterally a conviction, and thus, due process requires that a defendant be free from such apprehension. Id. To ensure that retaliatory motivation does not enter into the resentencing process, whenever a court imposes a harsher sentence following a new trial, the court must state its reasons upon the record. Id., 726.

The United States Supreme Court has subsequently examined the applicability of the Pearce presumption of vindictiveness. See, e.g., Texas v. McCullough, 475 U.S. 134, 106 S. Ct. 976, 89 L. Ed. 2d 104 (1986) (defendant originally sentenced by jury; judge concluded defendant entitled to new trial; upon retrial defendant chose sentencing by judge; Pearce presumption inapplicable and even if it were to apply, court’s findings overcame presumption); Wasman v. United States, 468 U.S. 559, 569, 104 S. Ct. 3217, 82 L. Ed. 2d 424 (1984) (presumption of vindictiveness applies since petitioner received greater sentence following retrial than that he had originally received; consideration by court of conviction between original sentencing and sentencing after retrial rebuts presumption); United States v. Goodwin, 457 U.S. 368, 372-84, 102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982) (pretrial decision by prosecutor to modify charges does not warrant presumption of prosecutorial vindictiveness in pretrial setting); Bordenkircher v. Hayes, 434 U.S. 357, 362-64, 98 S. Ct. 663, 54 L. Ed. 2d 604, reh. denied, 435 U.S. 918, 98 S. Ct. 1477, 55 L. Ed. 2d 511 (1978) (prosecutor’s action in carrying through on statement made during plea negotiations to bring additional charges against defendant if he refused to plead guilty to offense originally charged did not violate due process clause); Blackledge v. Perry, 417 U.S. 21, 25-29, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974) (prosecutor may not bring more serious charge against defendant prior to trial de novo in response to defendant’s exercise of statutory right to appeal); Chaffin v. Stynchcombe, 412 U.S. 17, 24-28, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973) (where resentencing occurs before a jury, potential for abuse in sentencing is minimal; Pearce does not apply); Cotten v. Kentucky, 407 U. S. 104, 112-20, 92 S. Ct. 1953, 32 L. Ed. 2d 584 (1972) (prophylactic rule announced in Pearce not appropriate in context of two-tier system which allowed for trial de novo in court of general criminal jurisdiction following trial or guilty plea in an inferior court; likelihood of vindictiveness not present).

The decision in North Carolina v. Pearce, supra, “was only ‘premised on the apparent need to guard against vindictiveness in the resentencing process.’ ” (Emphasis in original.) Wasman v. United States, supra, 567, quoting Chaffin v. Stynchcombe, supra, 25. “[I]n certain cases in which action detrimental to the defendant has been taken after the exercise of a legal right, the Court has found it necessary to ‘presume’ an improper vindictive motive. Given the severity of such a presumption, however—which may operate in the absence of any proof of an improper motive and thus may block a legitimate response to criminal conduct— the Court has done so only in cases in which a reasonable likelihood of vindictiveness exists.” United States v. Goodwin, supra, 373; Wasman v. United States, supra, 566. “The Pearce requirements thus do not apply in every case where a convicted defendant receives a higher sentence on retrial. Like other ‘judicially created means of effectuating the rights secured by the [Constitution]’. . . we have restricted application of Pearce to areas where its ‘objectives are thought most efficaciously served’ . . . . ” (Citations omitted). Texas v. McCullough, supra, 138.

The violation of due process in situations such as Pearce and Perry does not arise from the possibility that a defendant may be discouraged from exercising legal rights, but instead from the “danger that the State might be retaliating against the accused for lawfully attacking his conviction.” Bordenkircher v. Hayes, supra, 363. “[W]here the presumption applies, the sentencing authority or the prosecutor must rebut the presumption that an increased sentence or charge resulted from vindictiveness; where the presumption does not apply, the defendant must affirmatively prove actual vindictiveness.” Wasman v. United States, supra, 569; see Texas v. McCullough, supra, 138.

In the case before this court, the defendant pleaded guilty to three charges. There is no claim that the pleas, when entered, were involuntary. The agreed upon recommendation at the time of the pleas was a sentence of no more than three years, with the defendant retaining the right to withdraw his pleas if the sentencing court should exceed the agreement. The sentencing court imposed an effective sentence of five years, suspended after two and one-half years, with probation for three years, a sentence that the habeas court determined was greater than three years. The habeas court therefore ordered the sentencing court to “vacate the sentences imposed, and either . . . impose an effective sentence of not more than three years, if it can do so ‘in conscience,’ or, if it cannot ‘in conscience’ impose an effective sentence of not more than three years, then in such event, it allow petitioner to withdraw each of his pleas of guilty and it order him to be put to trial on said charges.” The sentencing court vacated the sentences in accordance with the order, and imposed an effective sentence of three years.

This court concludes that no realistic motive for vindictive sentencing exists in the action taken by the sentencing court, and that the Pearce presumption is therefore inapplicable. The sentencing court’s actions were within the parameters of the habeas court’s order and, equally important, were in accordance with the agreement reached between the parties. Where the Pearce presumption does not apply, the defendant must prove that vindictiveness actually occurred in the resentencing procedure, in order to obtain relief. The record fails to support such a claim.

In view of this court’s decision that the rationale of Pearce and its progeny is inapposite, and that actual vindictiveness has not been proved, we find no error.

There is no error.

In this opinion Healey, Shea and Covello, Js., concurred.

Callahan, J.,

concurring. I concur in the result but do not believe the North Carolina v. Pearce analysis is necessary. North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), only prohibits the imposition of a more severe sentence on remand. The defendant cannot have it both ways. He cannot argue that five years suspended after two and one-half years and three years probation is more severe than the bargained for sentence of three years for the purpose of having the five year sentence vacated and then argue that the court imposed a more severe sentence on remand by imposing the three year sentence originally bargained for.

This case does not concern the question of whether there was vindictiveness. The defendant simply did not receive a more severe sentence on remand. See State v. Reid, 204 Conn. 52, 55-59, 526 A.2d 528 (1987).

       “[General Statues] Sec. 53a-124. larceny in the third degree: class d felony, (a) A person is guilty of larceny in the third degree when he commits larceny as defined in section 53a-119 and: (1) The value of the property or service exceeds one thousand dollars; or (2) the property consists of a public record, writing or instrument kept, held or deposited according to law with or in the keeping of any public office or public servant; or (3) the property consists of a sample, culture, microorganism, specimen, record, recording, document, drawing or any other article, material, device or substance which constitutes, represents, evidences, reflects, or records a secret scientific or technical process, invention or forumla or any phase or part thereof. A process, invention or formula is ‘secret’ when it is not, and is not intended to be, available to anyone other than the owner thereof or selected persons having access thereto for limited purposes with his consent, and when it accords or may accord the owner an advantage over competitors or other persons who do not have knowledge or the benefit thereof.”

       “[General Statutes] Sec. 53a-140. forgery in the third degree: class B misdemeanor, (a) A person is guilty of forgery in the third degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument, or issues or possesses any written instrument which he knows to be forged.”

       “[General Statutes] Sec. 53a-130. criminal impersonation: class b misdemeanor, (a) A person is guilty of criminal impersonation when he: (1) Impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another; or (2) pretends to be a representative of some person or organization and does an act in such pretended capacity with intent to obtain a benefit or to injure or defraud another; or (3) pretends to be a public servant, or wears or displays without authority any uniform or badge by which such public servant is lawfully distinguished, with intent to induce another to submit to such pretended official authority or otherwise to act in reliance upon that pretense.”

       Outstanding charges pending in Derby and potential charges in Stratford were to be included in the sentence. Numerous other charges pending against the defendant in New Haven and Woodbridge were nolled at the time of the pleas. On the charge of larceny in the third degree, the defendant received a sentence of five years, suspended after two and one-half years, with probation for three years. The defendant received sentences of six months each on the charges of forgery in the third degree, criminal impersonation, drug paraphernalia and illegal possession, all to be served concurrently, for a total effective sentence of five years suspended after two and one-half years, with probation for three years. The judge who accepted the defendant’s guilty pleas also presided at sentencing.

       The defendant contended that the sentence he received was greater than three years and further claimed that because he had four months of jail credit time on the concurrent sentences only, he would effectively serve a sentence of three years or more.

       The constitution of the United States, amendment fourteen, provides: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

       The constitution of Connecticut, article first, § 8, provides: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless on a presentment or an indictment of a grand jury, except in the armed forces, or in the militia when in actual service in time of war or public danger.”

       The defendant also claimed in his habeas petition that he was denied effective assistance of counsel under the sixth and fourteenth amendments to the United States constitution, and article first, § 8, of the Connecticut constitution as a result of trial counsel’s failure to object to the sentencing court’s imposition of the alleged illegal sentence. The defendant was not given the opportunity to withdraw his guilty pleas when the sentence was imposed. The defendant’s counsel neglected to appeal from the judgment and to inform the defendant of his right to do so. When the court denied the defendant’s application for sentence modification, his counsel failed to inform him of his right to appeal the denial. The habeas court found that counsel’s actions caused the defendant to refrain from withdrawing his guilty pleas and to file direct appeals. The defendant sought the following relief: (1) that he be allowed to withdraw his guilty pleas; (2) that his convictions be vacated; and (3) that he be released from custody. The defendant did not assert error in the remedy ultimately framed by the habeas court which was not in accord with that he had requested.

       The defendant in State v. Sutton, 197 Conn. 485, 487, 498 A.2d 65 (1985), challenged the imposition of a more severe sentence upon reconviction under the fourteenth amendment to the United States constitution. The defendant here is seeking protection under both the Connecticut and the United States constitutions. This court is aware that it “cannot afford any lesser protection than that to which a comparable right is entitled under the United States constitution.” State v. Kimbro, 197 Conn. 219, 234 n.16, 496 A.2d 498 (1985). We decline to expand upon the doctrine established in North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).


author: Covello, J.

text:
    Dante Nardini v. John R. Manson, Commissioner of Correction
    (13167)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.
    Argued January 7
    decision released April 19, 1988

      James G. Clark, assistant state’s attorney, with whom, on the brief, was Jack Fischer, legal intern, for the appellant (respondent).

      Charles Hanken, with whom, on the brief, was Richard Emanuel, for the appellee (petitioner).
   Covello, J.

The petitioner, Dante Nardini, sought a writ of habeas corpus commanding his release from imprisonment under sentences imposed after two criminal convictions, claiming that he had been denied effective assistance of counsel when his attorney failed to raise constitutional due process objections to the use, for impeachment purposes, of two prior felony convictions obtained when he was not represented by counsel. The habeas court, Satter, J., denied the petition. The petitioner thereafter appealed to the Appellate Court, which, having found the due process violations, reversed the lower court decision and remanded the matter to the habeas court with instructions to grant the petition.

Upon our grant of certification, the state appealed, claiming that, having determined that the use at trial of the uncounseled convictions amounted to constitutional error, the Appellate Court should have addressed the further issue of whether that error was harmless beyond a reasonable doubt. Further examination of the record discloses that a correct analysis requires our review of the due process issue within the context of an ineffective assistance of counsel claim, thereby dictating that we take up matters not addressed by the Appellate Court and beyond the scope of the certified issue. State v. Hodge, 201 Conn. 379, 381, 517 A.2d 621 (1986). Ultimately, we conclude that the dispositive issue is whether the ineffective assistance of the petitioner’s trial counsel affected the outcome of the case. See Williams v. Manson, 195 Conn. 561, 564, 489 A.2d 377 (1985). We conclude that no such effect can be shown, and therefore we reverse the judgment of the Appellate Court.

Examination of the record discloses the petitioner’s conviction by a jury, on January 25,1979, of conspiracy to commit arson in the first degree in violation of General Statutes §§ 53a-lll (a) and 53a-48 (a), and arson in the first degree in violation of General Statutes § 53a-lll (a). He was found not guilty of a third count, second degree larceny. General Statutes § 53a-123 (a). The court rendered a judgment of conviction and sentenced the petitioner to an effective term of not less than eighteen years nor more than thirty-six years imprisonment. This sentence was modified upon review by the Sentence Review Division of the Superior Court to an effective sentence of not less than ten years nor more than twenty years imprisonment. On the state’s appeal concerning resentencing pursuant to the direction of the Sentence Review Division, this court upheld the judgment. State v. Nardini, 187 Conn. 109, 445 A.2d 304 (1982). (Nardini I)

At the petitioner’s arson trial, over his counsel’s objection, the trial court admitted as impeachment evidence two prior felony convictions, a 1953 conviction for breaking and entering, and a 1958 conviction for carrying a pistol without a permit. State v. Nardini, 187 Conn. 513, 520, 447 A.2d 396 (1982). (Nardini II.) The reasons offered in opposition to the admission of the evidence were, essentially, relevancy objections that challenged the probative value of these convictions on the issue of the petitioner’s credibility at trial. Id., 521.

After the entry of judgment following his convictions, the petitioner appealed to this court. Id., 513. He claimed that the trial court had erred in admitting evidence of his two prior felony convictions for impeachment purposes. Id., 513-14. This court considered those evidentiary, state law claims and concluded that because the “minimal prejudice” was outweighed by the probative value of the evidence; id., 530; it was within the trial court’s discretion to admit “[t]he conviction for breaking and entering, a crime regarded as having more than peripheral bearing upon honesty” despite the lapse of twenty years between the conviction and the time of trial. Id., 528.

As to the conviction for carrying a pistol without a permit, however, this court determined that its “significance upon credibility . . . [had] entirely dissipated by the date of trial and its admission . . . [could not, therefore,] be justified.” Id., 530. This court concluded, however, that “this error was harmless because it is so highly improbable that any additional prejudice arising from knowledge by the jury of this second conviction affected the outcome.” Id. Accordingly, this court affirmed the judgment.

On February 11,1983, the petitioner applied for the writ of habeas corpus that is the subject of this appeal. As the basis for his petition, he alleged for the first time that his trial counsel had failed to advance on his behalf constitutional due process arguments against the use of the prior felony convictions for impeachment pursuant to the holding in Loper v. Beto, 405 U.S. 473, 483, 92 S. Ct. 1014, 31 L. Ed. 2d 374 (1972). Specifically, the petitioner contends that the pleas that resulted in the 1953 and 1958 convictions were entered while he was unrepresented by counsel. Therefore, their introduction to impeach his credibility violated his constitutional right to due process of law.

The habeas court, having found that the prior convictions were in fact uncounseled, applied the rule articulated in Loper v. Beto, supra, e.g., that a prior uncounseled conviction used to impeach a defendant’s credibility is an unconstitutional deprivation of due process of law. The habeas court held, however, that the petitioner’s trial counsel’s failure to discover the uncounseled nature of the convictions was not ineffective assistance of counsel. It observed, in addition, that this court had already ruled on direct appeal in this case “that the use of the prior convictions [was] of either minimal prejudice or harmless error . . . [and that] this use could not [therefore] have contributed to petitioner’s conviction.” Nardini v. Manson, 10 Conn. App. 147, 152, 521 A.2d 1059 (1987). The habeas court concluded that “the petitioner failed to sustain his burden of proving ineffective assistance of counsel”; id., 153; and, accordingly, denied the petition.

The petitioner appealed to the Appellate Court, which concluded that once the habeas court had found the use of the prior uncounseled convictions unconstitutional, it should have granted the writ of habeas corpus solely on that basis. Id., 159. Relying on the Loper v. Beto doctrine, the Appellate Court found error and ordered the petition granted deeming it unnecessary to consider the claim of ineffective assistance of counsel. Id., 159-60.

The gravamen of the claim in this petition, however, is that counsel was ineffective in failing to raise constitutional due process objections to the use of uncounseled prior convictions for impeachment purposes. The due process violations serve to demonstrate the failure of trial counsel to protect the petitioner’s legitimate interests and to illustrate the precise manner of counsel’s ineffectiveness at the petitioner’s criminal trial.

In any habeas corpus proceeding, the petitioner is obligated to allege and prove that he or she did not deliberately bypass the orderly procedure of a direct appeal. Blue v. Robinson, 173 Conn. 360, 369, 377 A.2d 1108 (1977). “[T]he issue of deliberate bypass is jurisdictional in nature . . . [and] must be resolved before a decision on the merits may be rendered.” (Citations omitted.) Galland v. Bronson, 204 Conn. 330, 333, 527 A.2d 1192 (1987). The deliberate bypass rule is, however, no jurisdictional obstacle where a petition alleges ineffective assistance of counsel. State v. Rivera, 196 Conn. 567, 571, 494 A.2d 570 (1985).

A convicted defendant who complains of ineffective assistance of counsel must show, first, that counsel’s representation fell below the standard of reasonably effective assistance. Strickland v. Washington, 466 U.S. 668, 686,104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Williams v. Manson, supra, 564. The defendant must then show that counsel’s ineffectiveness at trial prejudiced the defense. Strickland v. Washington, supra. “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id., 691. A court deciding an ineffective assistance of counsel claim need not address the question of counsel’s performance, if it is easier to dispose of the claim on the ground of insufficient prejudice. Id., 697.

Our examination of the trial record discloses significant evidence from those actually present at the time the plan was formulated that the petitioner had devised a plan to burn a garage he owned in order to collect the insurance proceeds. He enlisted the aid of two repairmen employed by him and offered them $150 to burn the garage. The petitioner suggested using turpentine as an accelerant and demonstrated how to make a fuse using a book of matches and a cigarette that would allow his accomplice sufficient time to leave the scene. Several hours before the fire, the three collaborators, including the petitioner, went into the garage and spread the turpentine around the back walls, underneath the window and on a pile of debris that had been previously placed in the garage. Later, one of the accomplices returned to the garage with his brother-in-law and lit the cigarette-matchbook fuse that caused the fire. The next day, the petitioner met with one of the accomplices and discussed the stories they would tell the police. The petitioner suggested that the police would become confused if different witnesses told different stories.

We conclude that there was significant direct evidence of each element of the offenses charged, and that the erroneous admission of the two prior uncounseled convictions was of minimal influence upon the outcome of the trial. Strickland v. Washington, supra; Williams v. Manson, supra; see Nardini II, supra. We therefore conclude that the petition for a writ of habeas corpus was correctly denied by the habeas court.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the matter to the trial court to reinstate the judgment denying the petition.

In this opinion the other justices concurred.

       When we granted certification for this appeal from the Appellate Court, the only issue presented by the petition was whether the Appellate Court should have conducted a harmless error analysis in its review of the petitioner’s habeas corpus claim. The Appellate Court viewed the petition as claiming constitutional due process violations and, having found that such violations had occurred, directed that judgment enter granting the petition. We, in turn, granted certification limited to the harmless error analysis. Further examination of the petition for writ of habeas corpus discloses, however, that the due process violations were asserted as illustrative of the ineffective assistance of counsel claim.
      While Practice Book § 4138 (formerly § 3154) limits the issues the appellant may present to those raised in the petition for certification, we may, of course, suspend the limitation of § 4138 when the dictates of justice require a more expansive analysis. State v. Hodge, 201 Conn. 379, 382, 517 A.2d 621 (1986); State v. Torrence, 196 Conn. 430, 434, 493 A.2d 865 (1985).

       “[General Statutes] Sec. 53a-lll. arson in the first degree: class a felony, (a) A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and (1) the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied; or (2) any other person is injured, either directly or indirectly; or (3) such fire or explosion was caused for the purpose of collecting insurance proceeds for the resultant loss; or (4) at the scene of such fire or explosion a peace officer or firefighter is subjected to a substantial risk of bodily injury.
      “(b) Arson in the first degree is a class A felony.”

       “[General Statutes] Sec. 53a-48. conspiracy, renunciation, (a) 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.”

       See footnote 2, supra.

       After conviction, the petitioner was “sentenced by the court to a term of eight to sixteen years on the first count and to a consecutive term of ten to twenty years on the second count, for a total effective sentence of eighteen to thirty-six years. After a hearing, the Sentence Review Division left the terms of the two sentences intact, but ordered that they be served concurrently for a total effective sentence of ten to twenty years.” Nardini v. Manson, 10 Conn. App. 147, 148, 521 A.2d 1059 (1987).