State v. Revelo

SHEA, J.,

dissenting. I agree with part I of the majority opinion, which upholds the denial of the motion to suppress. I disagree with part II, however, in which the majority refuses to address the claim of the defendant that his constitutional right to due process of law was violated when the trial court sentenced him to one additional year of confinement because he insisted on a judicial determination of his motion to suppress. I believe that the defendant’s claim satisfies the criteria established by State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), for appellate review of unpreserved claims of constitutional error and also presents an occasion for the exercise of our supervisory authority over proceedings on appeal. I conclude that the additional year of confinement imposed on the defendant as a penalty for exercising his lawful right to pursue his motion to suppress is contrary to due process of law and, therefore, invalid.

*227 The majority does not dispute the defendant’s claim that the trial court added one additional year- to his sentence for the crime as a penalty for pursuing his motion to suppress because the state has suggested no other explanation for the plea bargain offer of eight years made by the trial court1 if that motion was abandoned but nine years if the motion was denied after a hearing. The majority maintains, however, that the defendant’s constitutional claim cannot be reviewed in this appeal because the statute authorizing an appeal from the denial of a motion to suppress, General Statutes § 54~94a,2 provides that “[t]he issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. ...”

I

I agree with the defendant that his claim that the trial court imposed one additional year of imprisonment on him because he refused to relinquish his right to a judicial determination of his motion to suppress satisfies the criteria established by State v. Golding, supra, 213 Conn. 239-40, for appellate review of unpreserved claims: “[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant *228 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.” (Emphasis in original.)

The majority does not maintain that the defendant’s claimed violation of his right to due process of law does not satisfy the four Golding criteria for appellate review of unpreserved claims. Instead, it contends that such review is not available in an appeal pursuant to § 54-94a because of the provision in that statute limiting the issue on appeal to “whether it was proper for the court to have denied the motion to suppress” and the defendant’s acceptance of a plea agreement providing for a nine year sentence with a right to appeal the ruling on his motion. Implicitly, the majority regards § 54-94a as a restriction on the jurisdiction of an appellate court to consider issues raised in an appeal that are not specified in the statute. It relies on decisions involving nolo contendere pleas pursuant to § 54-94a in which defendants have attempted unsuccessfully to raise issues other than those specified, such as State v. Madera, 198 Conn. 92, 99, 503 A.2d 136 (1985), State v. Sebastian, 41 Conn. App. 530, 534, 677 A.2d 437, cert. denied, 238 Conn. 906, 679 A.2d 365 (1996), and State v. Cedric S., 51 Conn. App. 539, 540, 722 A.2d 299 (1999). In none of those cases, however, was it claimed that the issues the defendant sought to raise qualified for review pursuant to State v. Golding, supra, 213 Conn. 239-40. In two of them, Madera and Sebastian, the court recognized that the authority of an appellate court over proceedings on appeal was not subject to the restriction of § 54-94a on the issues to be considered on appeal. “The question remains whether we should exercise our inherent supervisory authority over the administration of justice . . . and adopt a procedure that would allow criminal defendants to enter pleas based upon conditions other than those specified in § 54-94a.” (Citations omitted.) *229 State v. Madera, supra, 99-100. “[I]n appropriate circumstances we will exercise our powers of supervision and control over proceedings on appeal in the spirit of the purpose of our rules, namely to facilitate business and advance justice.” State v. Sebastian, supra, 537-38.

This court has explicitly rejected the view of the majority that § 54-94a restricts the subject matter jurisdiction of an appellate court to consider issues involved in an appeal beyond those specified in the statute. “When viewed in light of the definition of subject matter jurisdiction and the statutes that create such jurisdiction, it becomes clear that § 54-94a neither confers nor curtails appellate subject matter jurisdiction.” State v. Piorkowski, 37 Conn. App. 252, 258, 656 A.2d 1046 (1995), rev’d on other grounds, 236 Conn. 388, 672 A.2d 921 (1996). Our Supreme Court has adopted the same position: “We agree with the defendant and the Appellate Court that § 54-94a is not a subject matter jurisdictional statute.” State v. Piorkowski, 236 Conn. 388, 400, 672 A.2d 921 (1996). It is clear, therefore, that this court has jurisdiction to consider an unpreseived claim that a sentence violates a defendant’s constitutional rights if the Golding criteria are satisfied or if the claim presents an appropriate occasion for the exercise of our supervisory authority over proceedings on appeal. I believe the defendant’s claim that his right to due process of law was violated by the sentence imposed qualifies for appellate review on both those grounds.

II

“To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort . . . .” (Citation omitted.) Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S. Ct. 663, 54 L. Ed. 2d 604 (1978). Nevertheless, courts have implicitly or explicitly approved tactics used by prosecutors in offering various inducements to persuade *230 defendants to waive their constitutional rights to a trial or appeal by pleading guilty. “Whatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country’s criminal justice system.” Blackledge v. Allison, 431 U.S. 63, 71, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977). The many considerations that ultimately result in a plea bargain agreed on by the parties seldom áppear on the record and are usually irrelevant after a guilty plea has been accepted by the court.

This case, however, involves the burdening of the defendant’s constitutional and statutory right to a judicial determination of his motion to suppress by a penalty imposed by the trial court of one additional year of imprisonment for exercising that right. It is commonplace in the plea bargaining process for defendants to waive similar, rights, such as the right to a jury trial or to an appeal, at the behest of the prosecutor in reaching plea agreements. A defendant is free to waive his rights to achieve the most favorable disposition of his case that is available. A prosecutor may use what leverage he has in attempting to obtain guilty pleas in most cases to expedite the movement of cases through the criminal justice system. Normally, without any participation by the trial court in the plea bargaining process, the result is a guilty plea with an agreed sentencing recommendation fitting within the standard parameters. Once an agreement is reached and a guilty plea is accepted by the trial court, the various factors that produce that result have no further significance. The case is concluded except for the actual sentencing judgment.

In this case, no such final conclusion was reached because the defendant entered a plea of nolo conten-dere, reserving his right to appellate review of the denial of his motion to suppress pursuant to § 54-94a. This is not simply a case of plea bargaining between the *231 prosecutor and the defendant with no restraints on either party, as the majority maintains. The record makes it clear that the court was the agent that burdened the defendant’s right to a judicial determination of his motion to suppress by sentencing him to one additional year of confinement for exercising that right. Although Bordenkircher v. Hayes, supra, 434 U.S. 357, relied on by the majority, appears to give prosecutors carte blanche in the plea bargaining process, it provides no shield for judges. I agree with the defendant that the additional year added to his sentence was contrary to due process of law because it was punishment for doing “what the law plainly allow[ed] him to do . . . .” (Citation omitted.) Id., 363.

Ill

“Section 54-94a is intended to promote judicial economy by allowing the parties to litigate a suppression or dismissal issue fully in the trial court, and thereafter allowing the defendant to obtain review of an adverse ruling without the parties’ or the court’s expending additional resources.” (Internal quotation marks omitted.) State v. Piorkowski, supra, 236 Conn. 402, quoting State v. Piorkowski, supra, 37 Conn. App. 259. Quite apart from whether the imposition of a penalty of one additional year of imprisonment for pursuing the motion to suppress in the trial court violates the defendant’s right of due process, it is evident that such a penalty is inconsistent with the legislative purpose of § 54-94a to promote judicial economy. If the penalty were five or ten years of additional imprisonment instead of the fairly modest one year imposed on this defendant, few defendants would attempt to use that statute to preserve their right to appellate review of the denial of a motion to suppress. They could simply proceed to trial and appeal from the judgment of conviction, raising the denial of the motion as a ground for reversal as well *232 as making other claims. The salutary purpose of § 54-94a in expediting the disposition of criminal cases would be thwarted and the statute might become a dead letter.

This case presents an appropriate occasion for the exercise of our supervisory authority over proceedings on appeal “to facilitate business and advance justice.” State v. Sebastian, supra, 41 Conn. App. 537-38. As an appellate court, we ought not to permit trial courts to penalize the exercise of a defendant’s right to a judicial determination of his motion to suppress evidence claimed to have been obtained illegally. The legislature has enacted § 54-94a to encourage defendants to use the expedited procedure it provides for resolving a case where the only substantial issue is the validity of a search or the admissibility of a confession. I believe that imposing additional punishment on a defendant who seeks a judicial determination of his motion to suppress will thwart the legislative purpose of that enactment.

The use of the first person singular by the trial court, suggests that the court was engaged in plea bargaining in presenting the options of an eight or nine year sentence to the defendant depending on whether he pursued or abandoned his motion to suppress. Judicial participation in the plea bargaining process has been disapproved. State v. Fullwood, 194 Conn. 573, 580-81, 484 A.2d 435 (1984); State v. Gradzik, 193 Conn. 35, 47, 475 A.2d 269 (1984). We presume, however, that the court was merely reciting an offer that had been made by the prosecutor.

See footnote 2 of the majority opinion.