STATE OF CONNECTICUT v. DAMON FAGAN
SC 17562
Supreme Court of Connecticut
Argued January 3—officially released September 26, 2006
Sullivan, C. J., and Norcott, Katz, Vertefeuille and Zarella, Js.*
* The listing of justices reflects their seniority status on this court as of the date of oral argument.
In light of the defendant‘s failure to object to the prosecutorial misconduct and our conclusion that the trial as a whole was not unfair under the Williams test, we conclude that reversal of the defendant‘s conviction of the drug related charges is unwarranted.
The judgment of the Appellate Court is reversed with respect to the charges of sexual assault in the second degree in violation of
In this opinion the other justices concurred.
Rita M. Shair, senior assistant state‘s attorney, with whom were James E. Thomas, state‘s attorney, and, on the brief, Herbert E. Carlson, Jr., supervisory assistant state‘s attorney, for the appellee (state).
Opinion
KATZ, J. The defendant, Damon Fagan, appeals from the judgment of conviction, rendered after a jury trial, of one count of criminal violation of a protective order in violation of
The jury reasonably could have found the following facts. On June 24, 2003, the defendant was arrested and charged with disorderly conduct on the basis of a complaint by Karen Johnson, the mother of his child, from whom he is estranged. He was released on a $15,000 bond, and a protective order was issued barring the defendant from coming within 100 yards of Johnson.
At approximately 11 p.m. on July 27, 2003, the department of children and families received a call from an individual purporting to be the defendant and claiming that he had shot Johnson. Police officers from the Hartford police department subsequently were dispatched to Johnson‘s home at 59 Lenox Street in Hartford. Officer Giuseppe Uccello and several other officers arrived at Johnson‘s home at approximately 1:30 a.m. and found her unharmed. While in Johnson‘s home, Uccello observed the defendant‘s car, which had been described to the police by Johnson, passing directly in front of the home. Uccello then entered his police car and followed the defendant‘s car until it stopped at his home at 154 Edgewood Street in Hartford, which was one block away from Johnson‘s home. Uccello activated his overhead lights and pulled up behind the defendant‘s car. The defendant immediately sped off and led Uccello and other responding officers on a high speed chase that ended with the defendant‘s apprehension on Edgewood Street, near his home.
As a result of the defendant‘s conduct in the early morning hours of July 28, 2003, he was charged, in part A of a two part information, with one count of second degree harassment in violation of
I
The defendant first claims that the state failed to proffer sufficient evidence for the jury to find him guilty of violating the June, 2003 protective order. The defendant does not challenge that he was subject to a valid protective order issued pursuant to
This court has held that proof of the criminal violation of a protective order pursuant to
The Appellate Court, however, has considered this question on numerous occasions, and it has concluded that, “a violation of a protective order does not incorporate the specific intent to harass. . . . All that is necessary is a general intent that one intend to perform the
“General intent is the term used to define the requisite mens rea for a crime that has no stated mens rea; the term refers to whether a defendant intended deliberate, conscious or purposeful action, as opposed to causing a prohibited result through accident, mistake, carelessness, or absent-mindedness. Where a particular crime requires only a showing of general intent, the prosecution need not establish that the accused intended the precise harm or precise result which resulted from his acts.” (Internal quotation marks omitted.) State v. Charles, supra, 78 Conn. App. 131.
We agree with the Appellate Court that the intent required to prove a violation of
The following additional facts are necessary to determining whether the state met this burden. At trial, Johnson offered the following testimony. She previously had a relationship with the defendant for approximately seven years and during the course of their relationship, they had a child together. At some subsequent point in time, their relationship became hostile. On July 27, 2003, Johnson worked at Hartford Hospital, her place of employment, until 11:30 p.m. and she returned to her home after work. She had lived at the Lenox Street address for thirty years. At approximately 1:30 a.m. on July 28, 2003, police officers had come to her home to check on the well-being of her and her child.
The state also presented evidence that, at approximately 11 p.m. on July 27, 2003, a male identifying himself as the defendant had called the hotline for the department of children and families (department) and stated that he just had shot and killed the mother of his child when she got home from work.8 Johnson identified the male voice on the recording of the telephone call as that of the defendant. Roxana Cileza, the employee for the department who had received the hotline call, testified that, based on information available to the department, she had determined that the individual to whom the caller was referring was Johnson. Cileza testi-
Officer Uccello offered the following testimony as to the defendant‘s conduct. He and other officers were dispatched to Johnson‘s home to check on her well-being. While Uccello was interviewing Johnson in her home, he observed the defendant‘s car pass in front of her home at a distance of no more than thirty-three feet from Johnson. After seeing the defendant drive past Johnson‘s home, Uccello entered his marked police patrol car, followed the defendant for approximately thirty seconds until the defendant had reached his home, which was one block from Johnson‘s home. Uccello pulled his car behind the defendant‘s car with the lights on his patrol car activated, at which point the defendant immediately sped away. Uccello and other responding police officers9 testified that the defendant had led them on a high speed chase through Hartford and Bloomfield for more than ten minutes before he eventually was apprehended near his home. These officers testified that, during the pursuit, the defendant‘s vehicle had reached speeds in excess of seventy miles per hour, at one point reaching 100 miles per hour, that the defendant had continued to try to elude police even after his tire had blown out, and that he had driven in the dark without his headlights on. At the conclusion of the state‘s case, the defendant declined to present any evidence.
We next turn to whether this evidence was sufficient for the jury to have concluded that the defendant had the requisite intent to perform the activity that constituted the violation of the protective order—coming within 100 yards of Johnson. “In reviewing a sufficiency
“[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury‘s verdict of guilty. . . . Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Sorabella, 277 Conn. 155, 177-78, 891 A.2d 897 (2006). “Indeed, direct
evidence of the accused‘s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.” (Internal quotation marks omitted.) State v. DeCaro, 252 Conn. 229, 239-40, 745 A.2d 800 (2000). “[A]ny such inference cannot be based on possibilities, surmise or conjecture. . . . It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded upon the evidence.” (Internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 93, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004).
Turning to the present case, we conclude that, construing the evidence in the light most favorable to sustaining the verdict, the state presented sufficient evidence of the defendant‘s conduct and other circumstantial evidence from which the jury reasonably could have inferred that the defendant had the intent to come within 100 yards of Johnson, irrespective of his purpose for doing so. Common sense and experience dictate, and the record in the present case does not contradict the fact, that most people, including the mother of a young child, such as Johnson, are likely to be in their homes in the middle of the night and that the defendant equally would have been aware of this fact. Thus, the defendant‘s decision to drive past Johnson‘s home at 1:30 a.m., given the likelihood that Johnson would be home at such a late hour, justifies the inference that the defendant intended to come within 100 yards of her as he drove past her home.10
The final evidence adduced by the state that supports the inference that the defendant intended to come within 100 yards of Johnson was that the defendant was identified as the person who had called the department‘s hotline and had stated that he just shot the mother of his child. In conjunction with the fact that the defendant shortly thereafter drove by Johnson‘s house, a jury reasonably could have inferred that the
The defendant claims, however, that the state‘s evidence was insufficient because it merely establishes that the defendant‘s actions in coming within 100 yards of Johnson were the result of carelessness or absentmindedness. Specifically, the defendant contends that the state‘s circumstantial evidence does not support the inference that the defendant was intending to come within 100 yards of Johnson, but instead supports the inference that he reflexively was taking the most direct route to his home. In support of this contention, the defendant points to three pieces of evidence. First, the defendant drove down Johnson‘s street even though several police cars were present. Second, he calmly pulled up to his home before Uccello‘s patrol car pulled up behind him. Third, Johnson lived one block over from the defendant and both of the streets on which they lived are one way streets running in opposite directions. We disagree with the defendant.
Although the evidence cited by the defendant could support an inference that he did not purposefully drive down Johnson‘s street in order to come within 100 yards of her, the defendant misapplies the standard by which we review sufficiency of the evidence claims. “On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury‘s verdict of guilty.” (Internal quotation marks omitted.) State v. Sorabella, supra, 277 Conn. 177. For the reasons we have discussed previously, we conclude
II
The defendant next claims that the trial court‘s imposition of a one year sentence enhancement under
The following additional undisputed facts are relevant to the resolution of these claims. Prior to his release on probation in May, 2003, the defendant had signed a form stating the conditions of his release. That form did not contain an advisement that the defendant could be subject to a sentence enhancement if convicted of a crime committed while on release. Thereafter, the defendant was charged, in the present case, in a two part information. In part B of the information, the state charged the defendant with committing a crime while released on bond in violation of
After the jury returned guilty verdicts on three of the six counts set forth in part A of the information, the court excused the jury and instructed the clerk to put the defendant to plea on part B of the information, which charged that the defendant was subject to a sentence enhancement under
A
We first turn to the defendant‘s nonconstitutional claim that the trial court improperly enhanced his sentence under
The defendant concedes, however, that he did not raise this claim before the trial court and therefore seeks plain error review. “[T]he plain error doctrine, which is now codified at Practice Book § 60-5 . . . is not . . . a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court‘s
We conclude that the trial court‘s alleged impropriety in imposing an additional one year sentence under
Even if we were to assume, however, that the lack of written notice was known by the trial court, we cannot conclude that the court‘s imposition of the sentence enhancement under
B
We next turn to the defendant‘s claim that the trial court‘s imposition of an additional one year sentence enhancement under
The record in the present case is adequate for our review because it contains the full transcript of the trial court hearing at which the defendant pleaded guilty to part B of the information. Further, this court previously has recognized that a claim of an inadequate plea canvass implicates the defendant‘s due process rights and, therefore, is of constitutional magnitude. See State v. Reid, 277 Conn. 764, 781, 894 A.2d 963 (2006). Accordingly, we conclude that the merits of the defendant‘s claim are reviewable under the first two prongs of Golding.
Turning to the third prong of the Golding analysis, we first set forth the applicable principles that guide our analysis of the defendant‘s claim. “It is axiomatic that unless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable. . . . A plea of guilty is, in effect, a conviction, the equivalent of a guilty verdict by a jury. . . . [As noted in the United States Supreme Court‘s decision in Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), the defendant, in] choosing to plead guilty . . . is waiving several constitutional rights, including his privilege against self
We never have considered previously whether the same due process protections that apply to a defendant‘s guilty plea to substantive offenses apply equally to a guilty plea to part B of an information charging the defendant with a sentence enhancement based on the fact that the defendant was released on bond from an arrest at the time he committed the subsequent offense. As we have discussed previously herein, a plea canvass is required when a defendant pleads guilty because, by doing so, he or she is waiving several constitutional rights, including the privilege against self-incrimination, the right to trial by jury, and the right to confront his or her accusers. Therefore, a plea canvass was required in the present case if, in fact, any of the aforementioned constitutional rights attached to the proceeding at which the defendant‘s exposure to a sentence enhancement under
We begin with certain well established fundamental principles. A two part information is required under our rules of practice whenever the state seeks an enhanced penalty. Practice Book § 36-14. The purpose of this rule is to ensure that the defendant is given adequate notice of the charge against him so that he properly may prepare his defense. See State v. Jones, 234 Conn. 324, 339, 662 A.2d 1199 (1995); State v. LaSelva, 163 Conn. 229, 233-34, 303 A.2d 721 (1972); State v. Fitzgerald, 54 Conn. App. 258, 262, 737 A.2d 922 (1999), rev‘d on other grounds, 257 Conn. 106, 777 A.2d 580 (2001); see also State v. Ferrone, 96 Conn. 160, 173-75, 113 A. 452 (1921) (determining method for setting forth these allegations:
In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 301-304, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the United States Supreme Court held that a defendant who is subject to an enhanced penalty has a right to a jury finding on facts, other than the issue of whether he has a previous conviction. It seems clear that the Apprendi line of cases does not disturb this court‘s jurisprudence as to the notice and proof requirements of the two part information.18 The question remains, however, whether Apprendi and its progeny would require that the defendant in this case be given a jury trial, or a plea canvass pursuant to Boykin before waiving that right, on the issue of whether he was on release from an arrest at the time he committed the crimes charged in part A of the infor
We, therefore, turn to Apprendi v. New Jersey, supra, 530 U.S. 460. In that case, the Supreme Court considered whether the trial judge properly had enhanced the defendant‘s sentence on the basis of its determination by a preponderance of the evidence that the defendant‘s criminal conduct had been motivated by racial bias, rather than based on a jury determination of that fact beyond a reasonable doubt. Id., 469-71. In concluding that this procedure was constitutionally deficient, the Supreme Court stated in sweeping language that the federal constitution requires that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id., 490. As Apprendi‘s progeny more specifically explained, judges are precluded from finding “additional facts” that increase a defendant‘s sentence beyond the “statutory maximum,” which it defined as the maximum sentence a judge may impose ”solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Emphasis in original.) Blakely v. Washington, supra, 542 U.S. 303; see id., 303-305 (concluding that judge unconstitution
Although we are bound by the language in Blakely and Apprendi stating that only the fact of a prior conviction is exempt from being proven to a jury beyond a reasonable doubt, numerous federal courts that have applied Apprendi and its progeny have understood that these cases clearly do not limit a judge‘s authority to make legal determinations that precede a jury‘s fact-finding and imposition of sentence. See United States v. Smith, 422 F.3d 715, 723 (8th Cir. 2005) (noting that court consistently has rejected applicability of Booker to legal determination of whether prior conviction may be categorized as “crime of violence“), cert. denied sub
Additionally, several state courts have concluded that other facts, such as the defendant‘s status as being on probation or parole and the defendant‘s release date from prison, which may be used as a basis for a sentence enhancement, also fall within that exception because they arise from and essentially are legal determinations analogous to a prior conviction. See, e.g., People v. Montoya, Court of Appeals, Docket No. 03CA0696, 2006 Colo. App. LEXIS 220, *6-7 (Colo. App. February 23, 2006) (concluding that fact that defendant was on parole or probation is “inextricably linked to his prior conviction” and does not “implicate the type of prohibited fact-finding detailed in Apprendi“); State v. Calloway, 914 So. 2d 12, 14 (Fla. App. 2005) (concluding that “[f]or the purpose of applying Apprendi and Blakely, the date of a defendant‘s release from prison under the prison releasee reoffender statute is analo
In State v. Sanko, 62 Conn. App. 34, 43, 771 A.2d 149, cert. denied, 256 Conn. 905, 772 A.2d 599 (2001), the only Connecticut case to touch upon this issue, the Appellate Court determined that the defendant was not deprived unconstitutionally of a jury trial when the trial court enhanced his sentence under
Similarly, in Ryle v. State, supra, 842 N.E.2d 324-25, the Indiana Supreme Court, in reliance on Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005), wherein the Supreme Court reaffirmed, in accordance with Apprendi, the trial court‘s proper use of certain documents to determine the character of a prior conviction for sentence enhancement purposes, concluded that the trial court properly had found that the defendant was on parole based on prior judicial records as reflected in the presentence investigation report prepared by the probation officer because these types of judicial records bear the same hallmark of conclusive significance as those enumerated in Shepard. See also United States v. Pineda-Rodriquez, 133 Fed. Appx. 455, 458 (10th Cir. 2005) (holding that fact of date of defendant‘s release from custody and fact that defendant was on supervision during commission of current offense fall under prior conviction exception because they are “‘subsidiary findings‘” that are “merely aspects of the defendant‘s recidivist potential . . . easily verified, and . . . [require] nothing more than official records, a calendar, and the most self-evident mathematical computation“).
We recognize that other courts, however, have refused to extend the prior conviction exception to apply to such facts. In State v. Gross, 201 Ariz. 41, 44, 31 P.3d 815 (App. 2001), the Arizona Court of Appeals concluded that the enhancement of the defendant‘s sentence based on the trial court‘s finding that the defendant had committed the subsequent offenses while on release awaiting trial on a separate felony count violated Apprendi. The court reasoned that, because the fact
In the present case, we conclude that the defendant‘s status as to whether he lawfully had been on release at the time of the offense for which he was convicted, a fact that he not only reasonably could not dispute but conceded in his briefs to this court, was a question that also did not require a jury determination. Under our rules of practice, a defendant may be released upon the execution of a written promise to appear or he may be released on bond. See generally Practice Book c. 38. Whether the defendant was released pursuant to a bond or his promise to appear and when he was so released
III
The defendant next claims that the trial court abused its discretion in revoking the defendant‘s probation and reinstating the full six years remaining on his sentence for a 1999 conviction. Specifically, the defendant contends that it was excessive and unfair for the trial court to impose the full six year sentence on the basis of the defendant‘s two misdemeanor convictions for reckless driving and attempting to escape or elude a police officer. In addition, the defendant contends that the trial court failed to consider, in its determination of whether the purposes of probation could no longer be served, the specific circumstances surrounding the defendant‘s arrest on July 28, 2003. Specifically, the defendant asserts that his conduct on that night was not purposeful, but, rather, the result of frustration and panic stemming from his stormy relationship with Johnson, who he claims had made false accusations that led to his June, 2003 arrest on the charge of disorderly conduct. The defendant contends that his response to the police on July 28 was motivated by a fear that Johnson had made another false accusation that the police would credit, which would put his probation in jeopardy. We are not persuaded.
The following facts are necessary to the resolution of this claim. In 1999, the defendant pleaded guilty to carrying a pistol without a permit in violation of
After the jury returned its verdict, the trial court held an evidentiary hearing on the violation of probation charge. At the hearing‘s conclusion, the trial court found that the defendant had violated the conditions of his probation by using marijuana, violating the protective order, engaging in reckless driving, and attempting to escape or elude a police officer. The trial court then, with the parties’ consent, combined the sentencing hearings for the 2003 charges on which the jury had convicted the defendant and for the violation of probation charge. At the conclusion of this combined hearing, because it concluded that the beneficial purposes of probation were no longer being served, the trial court revoked the defendant‘s probation and reinstated the remaining six years on the defendant‘s 1999 sentence.
The defendant acknowledges that this claim was not preserved in the trial court, and, accordingly, he seeks to appeal under Golding. We conclude that the record is adequate for review and the claim is of constitutional magnitude. See State v. Davis, 229 Conn. 285, 294, 641 A.2d 370 (1994) (“due process clause of the fourteenth amendment to the United States constitution requires that certain minimum procedural safeguards be
We begin by setting forth the standard that guides our review of revocation of probation proceedings. “A revocation of probation hearing has two distinct components. . . . A factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made. If a violation is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served. . . . Since there are two distinct components of the revocation hearing, our standard of review differs depending on which part of the hearing we are reviewing.” (Internal quotation marks omitted.) State v. Faraday, supra, 268 Conn. 185.
In the present case, the defendant concedes that the trial court correctly found that he had violated the conditions of his probation. He contends, however, that the trial court improperly revoked his probation and reinstated the six unexecuted years of his sentence for the 1999 conviction. We review a trial court‘s decision to revoke a defendant‘s probation by asking “whether the trial court exercised its discretion properly by reinstating the original sentence and ordering incarceration. . . . In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court‘s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) Id., 185-86. “A defendant who seeks to reverse the exercise of judicial discretion assumes a heavy burden.”
Our determination of whether the trial court abused its discretion in revoking the defendant‘s probation is guided by the following principles. “We previously have recognized that [t]o a greater or lesser degree, it is always true of probationers . . . that they do not enjoy the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions. . . . These restrictions are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer‘s being at large. . . .
“A revocation proceeding is held to determine whether the goals of rehabilitation thought to be served by probation have faltered, requiring an end to the conditional freedom obtained by a defendant at a sentencing that allowed him or her to serve less than a full sentence. . . . [T]he ultimate question [in the probation process is] whether the probationer is still a good risk. . . . This determination involves the consideration of the goals of probation, including whether the probationer‘s behavior is inimical to his own rehabilitation, as well as to the safety of the public.” (Citations omitted; internal quotation marks omitted.) State v. Hill, 256 Conn. 412, 426-27, 773 A.2d 931 (2001).
Turning to the present case, we conclude that the trial court did not abuse its discretion in revoking the defendant‘s probation and reinstating the six year unexecuted portion of his 1999 sentence. Specifically, we conclude that the trial court reasonably could have found from the defendant‘s behavior before and after he was released on probation that he was no longer a “good risk.” Id., 427. The record reveals that, while the defendant was on work release a few months prior to
The defendant‘s subsequent probation violation, just two months after his release, constituted further grounds to revoke his probation. As determined by the trial court, the defendant violated his probation a second time when he was found guilty of violating a protective order, reckless driving, and attempting to escape or elude the police. The defendant‘s violation of a protective order was a felony, and we previously have stated that a felony conviction is a sufficient ground upon which to revoke a defendant‘s probation. See State v. Pecoraro, 196 Conn. 305, 307, 493 A.2d 180 (1985) (criminal conviction is “more than sufficient basis for revocation of probation“); State v. Roberson, 165 Conn. 73, 77, 327 A.2d 556 (1973) (“commission of a felony would . . . constitute a violation sufficient to authorize revocation of probation“). Moreover, the defendant‘s conduct that led to his convictions on the two misdemeanor charges—reckless driving and attempting to escape or elude a police officer—is more troubling because it evidences the defendant‘s willingness to put both police officers and the public at risk. Specifically, as recounted in part I of this opinion, the defendant led the police on a nighttime, high speed chase through
In this opinion SULLIVAN, C. J., and NORCOTT and ZARELLA, Js., concurred.
VERTEFEUILLE, J., dissenting. Although I agree with parts I, II A and III of the majority opinion, I disagree with the majority‘s conclusion in part II B of its opinion that the trial court properly enhanced the sentence of the defendant, Damon Fagan, under
I agree with the majority that the issue of whether the defendant‘s due process right to a plea canvass was violated turns on whether the defendant was, by
In Apprendi, the Supreme Court set forth the rule regarding when a defendant is entitled to a jury finding of facts that would increase his or her criminal penalty beyond the statutorily prescribed maximum. Id., 490. In that case, the defendant entered a guilty plea to two counts of second degree possession of a firearm for an unlawful purpose and one count of third degree unlawful possession of an antipersonnel bomb. Id., 469-70. The trial court subsequently held a hearing regarding the applicability of New Jersey‘s hate crime statute, which provides for an extended term of imprisonment if the trial judge finds by a preponderance of the evidence that “[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.” (Internal quotation marks omitted.) Id., 468-69. The trial judge made the requisite finding under the hate crime statute and enhanced the defendant‘s sentence accordingly. Id., 471.
On appeal, the Supreme Court concluded that the New Jersey hate crime statute was unconstitutional because the due process clause of the
The Apprendi court excepted the fact of a prior conviction from the general rule on the basis of the Supreme Court‘s prior decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998). In that case, the court concluded that the defendant could be subject to a longer prison sentence based on the fact that he had been previously convicted for “aggravated felonies,” despite the fact that such prior convictions were not charged in the defendant‘s indictment.2 Id., 226-27. In reaching this conclusion, the court rejected the defendant‘s argument that the federal constitution requires that the fact of his prior convictions also be proved to a jury beyond a reasonable doubt. Id., 239.
The court reasoned that its decision in Almendarez-Torres could be excepted from the general rule that it was announcing because that decision “turned heavily upon the fact that the additional sentence to which the defendant was subject was the prior commission of a serious crime. . . . Both the certainty that procedural safeguards attached to any fact of prior conviction, and the reality that [the defendant in Almendarez-Torres] did not challenge the accuracy of that fact in his case, mitigated the due process and [s]ixth [a]mendment concerns otherwise implicated in allowing a judge to deter-
Applying the plain language of the rule set forth in Apprendi, it is apparent that the fact of whether the defendant was released on bond from an arrest is not a fact of prior conviction and is therefore a fact that the due process clause and the sixth amendment require to be proved to a jury beyond a reasonable doubt. The Arizona Court of Appeals, in State v. Gross, 201 Ariz. 41, 44, 31 P.3d 815 (App. 2001), reached this same conclusion based on a sentence enhancement statute that is nearly identical to
On appeal, the Court of Appeals concluded that the enhancement of the defendant‘s sentence based on the trial court‘s finding that the defendant committed the present offenses while on release awaiting trial on a separate felony charge violated Apprendi. State v. Gross, supra, 201 Ariz. 44. The court reasoned that, because the fact that the defendant was on release status resulted in a sentence beyond the statutorily prescribed maximum, the plain language of Apprendi required that the defendant‘s release status be submitted to the jury and proved beyond a reasonable doubt. Id. The court did acknowledge that it would be rather easy for the court to take judicial notice of a court record to determine the release date, but it concluded that “[u]nder Apprendi, it is a defendant‘s exposure to additional punishment, not the ease or accuracy with which that fact can be determined by a trial court, that is pivotal in triggering a defendant‘s right to have a jury decide.” Id., 45.
Despite the narrow wording of the prior conviction exception to the general rule set forth in Apprendi, the majority correctly notes that some courts have concluded that other facts, such as the defendant‘s status as being on probation or parole and the defendant‘s release date from prison, also fall within that exception because they arise from and are essentially analogous to a prior conviction. See, e.g., People v. Montoya, Court of Appeals, Docket No. 03CA0696, 2006 Colo. App. LEXIS 220, *6 (Colo. App. February 23, 2006) (concluding that “fact that [the] defendant was on parole or probation is inextricably linked to his prior conviction and thus falls within the prior conviction exception“); State v. Calloway, 914 So. 2d 12, 14 (Fla. App. 2005) (concluding that date defendant was released from prison falls within prior conviction exception because “it is directly derivative of a prior conviction“), cert. denied, 547 U.S. 1080, 126 S. Ct. 1794, 164 L. Ed. 2d 534 (2006); State v. Allen, 706 N.W.2d 40, 48 (Minn. 2005) (concluding that fact defendant was on probation “arises from, and is so essentially analogous to, the fact of a prior conviction, that constitutional considerations do not require it to be determined by a jury“), cert. denied, 547 U.S. 1106, 126 S. Ct. 1884, 164 L. Ed. 2d 583 (2006). These courts reason that, because these facts are bound up in the prior conviction to which constitutionally required procedural safeguards attached, the sixth amendment concerns expressed in Apprendi are not implicated. See People v. Montoya, supra, *6-7; State v. Calloway, supra, 14; State v. Allen, supra, 47-48.
Even if I were to assume that the prior conviction exception should be extended to facts that arise from and are so essentially analogous to a prior conviction, the exception nonetheless would be inapplicable in the present case. Here, the defendant‘s sentence was enhanced based on the fact that he was released on bond after an arrest at the time when the present offenses were committed. This fact plainly did not arise from a prior conviction. Further, this fact cannot be said to be essentially analogous to a prior conviction because the substantial procedural safeguards that attach to the factual finding of a prior conviction, namely, the rights to a jury trial and to have the state prove the relevant facts beyond a reasonable doubt, do not attach to a factual finding of a defendant‘s release status after an arrest. Cf. United States v. Tighe, 266 F.3d 1187, 1194 (9th Cir. 2001) (concluding that “‘prior conviction’ exception to Apprendi‘s general rule must be limited to prior convictions that were themselves obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt” [emphasis added]); State v. Brown, 879 So. 2d 1276, 1290 (La. 2004) (concluding that juvenile adjudication does not fall within prior conviction exception because it “is not established through a procedure guaranteeing a jury trial“); but cf. United States v. Jones, 332 F.3d 688, 696 (3d Cir. 2003) (juvenile adjudication may fall within prior conviction exception if defendant was accorded “all the procedural safeguards that he [was] constitutionally due“); United States v. Smalley, 294 F.3d 1030, 1032-33 (8th Cir. 2002) (same). Accordingly, I conclude that the due process and sixth amendment concerns at issue in Apprendi would be implicated by a trial court‘s factual finding of the defendant‘s release status after an arrest.
The majority opinion also relies on Ryle v. State, 842 N.E.2d 320, 325 (Ind. 2005), in which the Indiana Supreme Court advanced an alternative reasoning for determining that the trial court could find that the defendant was on probation at the time his subsequent offense was committed. The court in Ryle noted that the United States Supreme Court in Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005), reaffirmed the use of certain documents by the trial court to determine the character of a prior conviction for the purpose of determining whether a sentence enhancement applies. Ryle v. State, supra, 324-25. The court in Ryle concluded that the trial court properly had found that the defendant was on parole based on references in a presentence investigation report to case files from courts in which the defendant was convicted because these type of judicial records bear the same
I am not persuaded that the Shepard decision provides a basis on which a trial court constitutionally can find the fact of the defendant‘s release status after an arrest under
The court in Shepard reaffirmed its decision in Taylor v. United States, 495 U.S. 575, 602, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990), in which it had allowed District Courts, in order to determine whether the prior convictions necessarily fell within the act‘s definition of burglary, to refer to the charging documents filed in the court of conviction and recorded judicial acts, such as the jury instructions, that could have limited the conviction to the type of burglary defined in the act. Shepard v. United States, supra, 544 U.S. 20. In order to encompass the scenario wherein the prior convictions arose from either a bench trial or a guilty plea, the Shepard court expanded the documents to which the District Court can refer to include: the judge‘s rulings
Turning to the present case, I cannot conclude that Shepard provides any support for a trial judge to find, on the basis of a record contained in a court file, the fact that a defendant was released on bond from an arrest on a specific date. Unlike the types of judicial records discussed in Shepard, such a judicial record was not “made or used in adjudicating guilt“; id., 21; and the facts contained in such a record were not necessarily found by a convicting court. Accordingly, such a fact does not approach the certainty of a prior conviction.4
Although the majority generally characterizes these decisions refusing to expand the prior conviction exception as formalistic, I believe that these courts properly limited this exception to the fact of prior conviction because the Apprendi court firmly stated that it was carving out only a narrow exception from its general rule requiring a jury finding of the sentence enhancing facts. Not only did the court refer to Almendarez-Torres, the decision on which the exception is based, as “at best an exceptional departure from the historic practice” regarding criminal proceedings; (emphasis added) Apprendi v. New Jersey, supra, 530 U.S. 487; it also stated its doubts regarding the correctness of this decision. Id., 489-90 and n.15; see also Shepard v. United States, supra, 544 U.S. 27-28 (Thomas, J., concurring) (noting that Almendarez-Torres has been eroded by court‘s sixth amendment jurisprudence and majority of court now believes it was decided wrongly). On the basis of these reservations, the court explicitly stated that the exception it was creating to accommodate the Almendarez-Torres decision was a “narrow exception . . . .” (Emphasis added.) Apprendi v. New Jersey, supra, 530 U.S. 490; see also United States v. Tighe, supra, 266 F.3d 1194 (noting that ”Apprendi [c]ourt‘s serious reservations about the reasoning of Almendarez-Torres counsel against any extension” of prior conviction exception).
The majority opinion does, however, construe some of these decisions as adopting what it describes as a “context driven approach,” wherein a jury trial would be required only if the relevant inquiry was of the type of “complicated and intensively factual inquiry that clearly
Further, the majority‘s reasoning, which hinges the right to a jury trial on the ease by which the underlying fact may be proven, finds no support in Apprendi. As we have noted previously herein, the court in Apprendi did not except the fact of prior convictions from the
Finally, I do not believe that it would be appropriate to limit the defendant‘s right to a jury trial on the basis of the majority opinion‘s context driven approach because it would require this court to engage in a subjective analysis of how complicated or easy a given fact would be to prove and it is this type of subjective inquiry regarding the outer contours of the sixth amendment‘s right to a jury trial that the United States Supreme Court disapproved of in Blakely v. Washington, supra, 542 U.S. 296. In Blakely, the court expressly rejected the view that legislatures should be allowed to, within certain limits, establish that certain factors are to be considered sentencing factors found by the trial court. Id., 307. The court noted that this view would mean, in operation, “that the law must not go too far—it must not exceed the judicial estimation of the proper role of the judge.” Id. The court rejected the notion that the
I therefore conclude that, in the present case, if the defendant had not entered a guilty plea, he would have been entitled to a jury finding regarding whether he was released on bond from an arrest at the time he committed the crimes charged in part A of the information. Accordingly, by pleading guilty to the sentence enhancement under
An examination of the record in the present case reveals that the trial court made no effort to ascertain whether the defendant‘s guilty plea was made knowingly and voluntarily. The complete exchange between the court and the defendant consisted of the court directing the clerk to put the defendant to plea on part B of the information, the clerk informing the defendant that he was charged under part B of the information with violating
I therefore respectfully dissent.
VITA CARLSON, EXECUTRIX (ESTATE OF GARY CARLSON), ET AL. v. WATERBURY HOSPITAL ET AL.
(SC 17476)
(SC 17477)
Borden, Norcott, Katz, Palmer and Vertefeuille, Js.
Notes
Because the defendant‘s claim was unpreserved, he can prevail on this claim only if he satisfies the four-pronged test set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Under Golding, the defendant can prevail on this claim only if the following conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id. I agree with the majority opinion that the first two prongs were satisfied. Because I conclude that the trial court‘s failure to canvass adequately the defendant was a clear constitutional violation, I conclude that the third prong of Golding was satisfied. Under the fourth prong of the Golding analysis, the state bears the burden of proving that the constitutional error was harmless beyond a reasonable doubt. See State v. Estrella, 277 Conn. 458, 477, 893 A.2d 348 (2006); State v. Faust, 237 Conn. 454, 470, 678 A.2d 910 (1996). In the present case, the state has failed to meet its burden because it did not argue, in its brief in this court, that the constitutionally inadequate canvass was harmless beyond a reasonable doubt.“Operator: Good evening, [department of children and families], can I help you?
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- The nature of the charge to which the plea is offered;
- The mandatory minimum sentence, if any;
- The fact that the statute for the particular offense does not permit the sentence to be suspended;
- The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
- The fact that he or she has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.”
In addition, to the extent the defendant claims that the trial court abused its discretion because it failed to consider the specific circumstances under which he was acting on July 28, 2003, we conclude that this argument also lacks merit. During the sentencing hearing, the trial court allowed the defendant to address the court, wherein he described his belief that his relationship with Johnson, and more particularly her false statements that led to his June, 2003 disorderly conduct arrest, precipitated his behavior on that night. The trial court rejected the defendant‘s attempt to place the blame for his actions on Johnson. On the basis of the record of the defendant‘s behavior before and during his release on probation, we cannot conclude that the trial court abused its discretion in concluding that “the beneficial aspects of [the defendant‘s] probation no longer [were] being served.” (Internal quotation marks omitted.) State v. Faraday, supra, 268 Conn. 185.