204 Conn. 52 | Conn. | 1987
On March 3, 1983, the defendant pleaded guilty to one count of robbery in the first degree in violation of General Statutes § 53a-134 and one count of larceny in the first degree in violation of General Statutes § 53a-122. Both charges arose from
At the time the defendant’s pleas were entered there existed an understanding between him and the state’s attorney for the judicial district of New Haven that the defendant would cooperate with law enforcement officials and furnish information concerning the offenses for which he had been arrested and any other crimes of which he had knowledge. In pursuance of that agreement, the state’s attorney informed the court, which canvassed and accepted the defendant’s pleas, that, at the time of sentencing, the state would recommend a sentence of “between fifteen to eighteen years,” with the right reserved to defense counsel to argue for less. Subsequent to the entry of his pleas, the defendant did furnish information to state and federal law enforcement officials which led to the successful prosecution of numerous serious crimes.
The defendant did not appear for sentencing on the state robbery and larceny charges until January 30, 1986. In the meantime, he was serving a sentence for a federal parole violation. Prior to and at the time of sentencing, federal and state law enforcement agents, the United States Attorney for the District of Connecticut, and the state’s attorney involved, all expressed satisfaction with the degree of the defendant’s cooperation. The state’s attorney, as a result, recommended a sentence of fifteen years, the minimum sentence offered under the plea agreement expressed on March 3,1983. The sentencing judge, who was not the judge who had accepted the defendant’s pleas in 1983, did not adhere to the plea agreement, however, but imposed concurrent sentences of twenty years on each count, to be suspended after the defendant had served ten years, and also imposed a five year period of probation.
There is absolutely nothing in the record, other than the defendant’s own letter, to justify his expectations. To the contrary, the sentencing judge immediately prior to pronouncing sentence, without rebuttal from either the defendant or his counsel, stated, “there was in fact no commitment made that the sentence would not exceed the parole time that you owed.”
That, however, does not end the matter. The sentence imposed, while it carried a lesser period of immediate incarceration than the sentence recommended by the state’s attorney, potentially required the defendant to serve five years more than he had bargained for. Further, the plea agreement did not include a period of probation and there is nothing to indicate that a period of probation had been agreed to or anticipated by the defendant.
A suspended sentence and a period of probation are not inconsequential adjuncts of the sentence imposed that can be ignored or, like castor oil, be considered to have been administered for the defendant’s own good. Probation is a criminal sentence and the conditions attached to probation involve serious restraints on a probationer’s life-style, associations, movements and activities.
On March 3, 1983, when the defendant entered his pleas, he was informed by the court which accepted them that if, at the time of sentencing, the court was unable to “go along with [the] recommendation that the State’s Attorney is going to make to the Court which you agreed to,” the defendant would have a right to withdraw his pleas. “When a guilty plea is induced by promises arising out of a plea bargaining agreement,
Fairness, therefore, requires that the defendant be given the option to retain his present sentence or to be resentenced in accordance with the plea agreement as expressed at the time of sentencing, i.e., fifteen years imprisonment, reserving to defense counsel the right to argue for less.
There is error in part, 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 Court: Mr. Reid, I think you well know that I didn’t participate in any way in your case prior to preparing for this sentencing proceeding, so much of what has occurred in the past I had to rely upon counsel and the record to apprise me of.
“As I understand it, Mr. Markle has made a recommendation to the Court today that is in full accord with the commitment that he made to you at the time you entered your plea in this case in 1983, which was a little bit of an unusual commitment at that time not to ask for a sentence in excess of fifteen to eighteen years, but his recommendation today is a sentence of fifteen years, and I don’t understand that there is any credibile basis for you to claim or Ms. Zitser to claim—and I don’t understand this to be her claim—that there was any commitment made at the time you did enter your plea, irrespective of what might have occurred earlier—that there was in fact no commitment made that the sentence to be imposed for this offense would not exceed the parole time that you owed. Mr. Markle says this is not so. I don’t understand Ms. Zitser to make that claim. There may have been earlier discussions, but [if| I understand the situation correctly your cooperation with the state and federal authorities occurred subsequent to your entry of your plea. You knew that at that time, or you certainly should
“The Defendant: Yes, sir.”
Indeed, “conditions [of probation] may appear to the defendant more onerous than the sentence of confinement which might be imposed.” In re Osslo, 51 Cal. 2d 371, 381, 334 P.2d 1 (1958).
“[General Statutes] Sec. 53a-29. probation and conditional discharge: criteria, periods, (a) The court may sentence a person to a period of probation upon conviction of any crime, other than a class A felony, if it is of the opinion that: (1) Present or extended institutional confinement of the defendant is not necessary for the protection of the public; (2) .the defendant is in need of guidance, training or assistance which, in his case, can be effectively administered through probation supervision; and (3) such disposition is not inconsistent with the ends of justice.
“(b) The court may impose a sentence of conditional discharge for an offense, other than a class A felony, if it is of the opinion that: (1) Present or extended institutional confinement of the defendant is not necessary for the protection of the public; and (2) probation supervision is not appropriate.
“(c) When the court imposes a sentence of conditional discharge the defendant shall be released with respect to the conviction for which the sentence is imposed but shall be subject, during the period of such conditional discharge, to such conditions as the court may determine. The court shall impose the period of conditional discharge authorized by subsection (d) and shall specify, in accordance with section 53a-30, the conditions to be complied with. When a person is sentenced to a period of probation the court shall impose the period authorized by subsection (d) and may impose any conditions authorized by said section 53a-30. When a person is sentenced to a period of probation, he shall be placed under the supervision of the office of adult probation.
“(d) The period of probation or conditional discharge, unless terminated sooner as hereinafter provided, shall be as follows: (1) For a felony, not more than five years; (2) for a class A misdemeanor, not more than three years; (3) for a class B misdemeanor, not more than two years; (4) for a class C misdemeanor, not more than one year; and (5) for an unclassified misdemeanor, not more than one year if the authorized sentence of imprisonment is less than three months, or not more than two years if the authorized sentence of imprisonment is in excess of three months, or where the defendant is charged with failure to provide subsistence for dependents, a determinate or indeterminate period.”
“[General Statutes] Sec. 53a-30. conditions op probation and conditional discharge, (a) When imposing sentence of probation or conditional discharge, the court may, as a condition of the sentence, order that the defendant: (1) Work faithfully at a suitable employment or faithfully pursue a course of study or of vocational training that will equip him for suitable employment; (2) undergo medical or psychiatric treatment and remain in a specified institution, when required for that purpose; (3) sup
“(b) When a defendant has been sentenced to a period of probation, the office of adult probation may require that the defendant comply with any or all conditions which the court could have imposed under subsection (a) which are not inconsistent with any condition actually imposed by the court.
“(c) At any time during the period of probation or conditional [release], after hearing and for good cause shown, the court may modify or enlarge the conditions, whether originally imposed by the court under this section or otherwise, and may extend the period, provided the original period with any extensions shall not exceed the periods authorized by section 53a-29. The court shall cause a copy of any such order to be delivered to the defendant and to the probation officer, if any.”
“[General Statutes] Sec. 53a-32. violation of probation or conditional discharge: arrest; procedure, (a) At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge, or may issue a notice to appear to answer to a charge of such violation, which notice shall be personally served upon the defendant. Any such warrant shall authorize all officers named therein to return the defendant to the custody of the court or to any suitable detention facility designated by the court. Any probation officer may arrest any defendant on probation without a warrant or may deputize any other officer with power to arrest to do so by giving him a written statement setting forth that the defendant has, in the judgment of the probation officer, violated the conditions of his probation. Such written statement, delivered with the defendant by the arresting officer to the official in charge of any correctional center or other place of detention, shall be sufficient warrant for the detention of the defendant. After making such
“(b) If such violation is established, the court may continue or revoke the sentence of probation or conditional [release] or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by reliable and probative evidence.”
There was an agreement between the defendant and the state’s attorney that the defendant’s state sentence would be concurrent with his federal sentence. The defendant pleaded guilty on March 3,1983; he was not sentenced until January 30, 1986. The long hiatus between plea and sentence apparently was at the convenience of and for the benefit of the state. Therefore, if the defendant elects to be resentenced, fair play dictates that he be given credit on any resentencing for the federal time served.