State v. Hudson , 182 Conn. App. 833 ( 2018 )

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STATE OF CONNECTICUT v. ROBERT LEE
HUDSON III
(AC 39825)
Lavine, Prescott and Harper, Js.
Syllabus
Convicted, following a plea of guilty, of the crimes of criminal possession
of a firearm and altering a firearm identification mark, the defendant
appealed to this court. The defendant had entered into a plea agreement
with the state pursuant to State v. Garvin (242 Conn. 296), under which
he would receive a certain sentence so long as he appeared before the
court for a scheduled sentencing hearing and was not arrested before
that time while out on bond, and would be subject to enhanced penalties
if he violated that agreement. The sentencing hearing had been continued
several times, and between the time the defendant entered into the
Garvin agreement and the sentencing hearing, he was arrested on new
criminal charges. The trial court denied the defendant’s motion to con-
tinue the sentencing until the second case was resolved and sentenced
him to a total effective sentence of ten years of incarceration instead of
the previously agreed six years of incarceration. Held that the defendant
could not prevail on his claim that the trial court deprived him of his
right to due process by finding that he violated the no new arrests
condition of the Garvin agreement and increasing his sentence without
first holding a hearing, in accordance with State v. Stevens (278 Conn.
1), to determine whether his arrest in the second case was supported
by probable cause; although the defendant did request the trial court
to postpone his sentencing in the present case until the ultimate question
of his guilt in the second case was decided, he failed to put the court
on notice that he was challenging the validity of the arrest in the second
case and, therefore, his claim was unpreserved, and even though the
record was adequate to review the claim pursuant to State v. Golding
(213 Conn. 233) and the claim implicated the defendant’s constitutional
right to due process, the defendant failed to demonstrate the existence
of a constitutional violation of his right to due process pursuant to the
third prong of the test set forth in Golding, as any evidence pertaining
to the defendant’s ultimate criminal liability with respect to the second
case was irrelevant to the trial court’s determination that he breached
the Garvin agreement, and there was nothing in the record to suggest
that the arrest in the second case lacked the requisite minimal indicium
of reliability necessary to be considered at sentencing given that a
judicial determination of probable cause was made within forty-eight
hours of the warrantless arrest and that the defendant had conceded,
at oral argument and in response to questions from this court, that he
was not challenging whether there was a legitimate basis for that arrest.
Argued February 5—officially released June 26, 2018
Procedural History
Substitute information charging the defendant with
the crimes of criminal possession of a firearm and alter-
ing the identification mark of a firearm, brought to
the Superior Court in the judicial district of Stamford-
Norwalk, where the defendant was presented to the
court, Hon. Richard F. Comerford, Jr., judge trial ref-
eree, on a plea of guilty; judgment of guilty in accor-
dance with the plea, from which the defendant appealed
to this court. Affirmed.
W. Theodore Koch III, assigned counsel, for the appel-
lant (defendant).
Bruce R. Lockwood, senior assistant state’s attorney,
with whom, on the brief, were Richard J. Colangelo, Jr.,
state’s attorney, Paul Ferencek, supervisory assistant
state’s attorney, and James Bernardi, former supervi-
sory assistant state’s attorney, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Robert Lee Hudson
III, appeals following the judgment of conviction, chal-
lenging only the sentence imposed on him by the trial
court following his plea of guilty under the Alford1 doc-
trine to criminal possession of a firearm in violation of
General Statutes (Rev. to 2013) § 53a-2172 and altering
the identification mark of a firearm in violation of Gen-
eral Statutes (Rev. to 2013) § 29-36.3 The defendant’s
plea was entered subject to a Garvin agreement.4 The
sole issue on appeal is whether the court violated the
defendant’s right to due process when it found that
he had violated the Garvin agreement without first
conducting a hearing in accordance with State v. Ste-
vens, 278 Conn. 1, 11–13, 895 A.2d 771 (2006), to deter-
mine whether probable cause existed to support the
defendant’s subsequent arrest, which was the basis of
the violation. We conclude that the defendant’s right
to due process was not infringed and, accordingly,
affirm the judgment of the court.
The record reveals the following relevant facts and
procedural history. On September 9, 2013, the defen-
dant was arrested pursuant to a warrant for criminal
possession of a firearm in violation of § 53a-217, altering
the identification mark of a firearm in violation of § 29-
36, and having a weapon in a motor vehicle in violation
of General Statutes (Rev. to 2013) § 29-38. The charges
stemmed from the defendant’s alleged involvement with
an attempted burglary in Stamford (Stamford arrest).
On September 4, 2014, the defendant pleaded guilty,
under the Alford doctrine, to criminal possession of a
firearm and altering the identification mark of a firearm.
The defendant subsequently entered into a Garvin
agreement whereby the court agreed to release the
defendant on bond while he awaited sentencing and to
impose the agreed upon sentence, which was six years
incarceration, followed by four years of special parole,
so long as he (1) appeared in court for sentencing on
December 5, 2014, and (2) was not arrested while out
on bond (no new arrests condition). The court advised
the defendant that, if he violated a condition of the
Garvin agreement, he was no longer entitled to the
agreed upon sentence and the court instead could sen-
tence him up to the statutory maximum period of incar-
ceration for the charges to which he pleaded guilty.
The court canvassed the defendant as follows:
‘‘Q. Now you’re out on bond on these files, sir. You
understand you have to be back here on December 5th.
Do you understand that, sir?
‘‘A. Yes, sir.
‘‘Q. If you don’t come back on that date, I will feel
free to sentence you to the maximum term for the
charges to which you’ve plead[ed] [guilty], which is ten
Do you understand that, sir?
‘‘A. Yes, sir.
‘‘Q. In addition to that, you would be charged with
failure to appear in the first degree, which brings with
it an additional five years in the state’s prison system.
Do you understand that, sir?
‘‘A. Yes, sir.
‘‘Q. Secondarily, if you were to pick up any files
between now and the time you are sentenced, be they
serious motor vehicle offenses or criminal offenses, I
would feel free to sentence you to the maximum term,
which is ten years to serve. Do you understand that, sir?
‘‘A. Yes, sir.
‘‘Q. Do you agree to all of that, sir?
‘‘A. Yes, sir.’’5
On December 3, 2014, the sentencing hearing was
continued to January 20, 2015. On December 19, 2014,
the defendant was arrested in connection with a shoot-
ing in the Norwalk-Stamford area and charged with
attempt to commit murder in violation of General Stat-
utes §§ 53a-49 and 53a-54a (a), reckless endangerment
in the first degree in violation of General Statutes § 53a-
63, criminal possession of a pistol or revolver in viola-
tion of General Statutes (Supp. 2014) § 53a-217c, unlaw-
ful discharge of a firearm in violation of General
Statutes § 53-203, altering the identification mark of a
firearm in violation of General Statutes (Supp. 2014)
§ 29-36, and stealing a firearm in violation of General
Statutes § 53a-212 (Norwalk arrest).
On October 14, 2015, following numerous continu-
ances, the court held a sentencing hearing on the
charges to which the defendant had pleaded guilty
under the Alford doctrine as a result of his Stamford
arrest. The court noted the Garvin agreement that the
defendant had entered into with respect to those
charges. The defendant’s attorney, Richard Meehan, Jr.,
then asked the court whether it would (1) consider
sentencing the defendant to the original agreed upon
disposition, which was six years to serve, followed by
four years of special parole, or (2) refrain from sentenc-
ing him until the Norwalk case was resolved because
he claimed that a third-party witness would exonerate
him of those charges.6
In response to Meehan’s request, the court stated
that ‘‘[w]hen the Garvin warnings are given—and the
Garvin warnings are not predicated upon guilt beyond
a reasonable doubt—the Garvin warnings are given
with the understanding that if [the defendant is]
involved in any kind of subsequent behavior that results
in a judge finding probable cause for his arrest, be it
a serious motor vehicle matter or a criminal matter,
then he has violated the Garvin warnings given by the
[c]ourt. That was the agreement he agreed to at the
time the Garvin warnings were given, not proof beyond
a reasonable doubt.’’ (Emphasis added.)
Despite the court’s explanation, the defendant failed
to argue that his Norwalk arrest was not supported by
probable cause or otherwise contest its validity. Nor did
the defendant explicitly request a hearing of any kind.
The court then heard from the state, which requested
that the court increase the defendant’s total sentence to
ten years of incarceration. The defendant subsequently
made a formal motion to continue the sentencing until
the Norwalk case was resolved. The court denied the
defendant’s motion for continuance and sentenced him
to two consecutive five year terms of incarceration for
criminal possession of a firearm in violation of § 53a-
217 and altering the identification mark of a firearm in
violation of § 29-36, for a total effective sentence of
ten years of incarceration, two years of which were a
mandatory minimum period of incarceration.
On November 21, 2016, the defendant filed the pre-
sent appeal. On June 26, 2017, during the pendency of
this appeal, the Norwalk case was resolved when the
defendant pleaded guilty7 under the Alford doctrine to
criminal possession of a firearm in violation of § 53a-
217 and carrying a pistol without a permit in violation
of General Statutes § 29-35 (a).8
On appeal, the defendant claims that the court
deprived him of his right to due process by finding that
he violated the no new arrests condition of the Garvin
agreement and increasing his sentence without first
holding a Stevens hearing to determine whether his
Norwalk arrest was supported by probable cause. We
disagree.
The state contends that this claim is not preserved.
The defendant, however, argues that his assertion that
he would be exonerated of the charges stemming from
his Norwalk arrest was enough to put the court on
notice that he was requesting a Stevens hearing. We
agree with the state that the claim the defendant
advances on appeal was not distinctly raised to the trial
court and is therefore unpreserved.
The defendant’s request that his sentencing in the
Stamford case be postponed until the ultimate question
of his guilt in the Norwalk case was decided is funda-
mentally different than a request for adjudication by
the court regarding the validity of his Norwalk arrest.
At no point during the defendant’s October 14, 2015
sentencing hearing did the defendant contest whether
his Norwalk arrest was supported by probable cause
or otherwise challenge the validity of the arrest, despite
the court’s statement that ‘‘the Garvin warnings are
not predicated upon guilt beyond a reasonable doubt—
the Garvin warnings are given with the understanding
that if [the defendant is] involved in any kind of subse-
quent behavior that results in a judge finding probable
cause for his arrest . . . then he has violated the Gar-
vin warnings . . . .’’ (Emphasis added.) We do not
mean to suggest that the defendant was required to use
the precise phrase, ‘‘I am requesting a Stevens hearing,’’
in order to preserve his claim. At the very least, how-
ever, he needed to put the court on notice that he was
challenging the validity of the arrest itself. Because he
failed to do so, we conclude that his claim is not pre-
served.
The defendant requests that, in the event we conclude
that his claim is not preserved, we review it pursuant
to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989), as modified by In re Yasiel R., 317 Conn.
773, 781, 120 A.3d 1188 (2015). Under Golding, ‘‘a defen-
dant 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 magni-
tude alleging the violation of a fundamental right; (3)
the alleged constitutional violation . . . exists and
. . . 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.’’ (Emphasis in
original; footnote omitted.) State v. Golding, supra,
239–40.
As a threshold matter, we note that the defendant’s
claim is reviewable under Golding because the record
is adequate for review and the claim is of constitutional
magnitude. Specifically, the issue of whether the court
was required to hold a Stevens hearing before finding
that the defendant violated the no new arrests condition
of the Garvin agreement implicates his constitutional
right to due process. See State v. Stevens, supra, 278
Conn. 7 n.8, 11–13. The defendant cannot satisfy the
third prong of Golding, however, because no constitu-
tional violation occurred in the present case.
We begin by setting forth the legal principles relevant
to the defendant’s claim. A Garvin agreement is a condi-
tional plea agreement. See State v. Brown, 145 Conn.
App. 174, 176 n.1, 75 A.3d 713, cert. denied, 310 Conn.
936, 79 A.3d 890 (2013). If a defendant enters into a
Garvin agreement and, thereafter, violates a condition
of that agreement, the court may decline to impose the
agreed upon sentence and instead increase the defen-
dant’s sentence up to his or her maximum statutory
exposure. See State v. Garvin, 242 Conn. 296, 300–302,
314, 699 A.2d 921 (1997). Moreover, a no new arrests
condition may properly be imposed by the court pursu-
ant to a Garvin agreement. See State v. Stevens, supra,
278 Conn. 8–9 (condition of Garvin agreement that
defendant not get arrested while awaiting sentencing
was valid).
In State v. Stevens, our Supreme Court determined
that, regarding a violation of a no new arrests condition
of a Garvin agreement, due process requires that the
defendant be given the opportunity to contest the valid-
ity of the arrest. Id., 12. If the defendant does contest
the validity of the arrest, the court must conduct an
inquiry regarding the defendant’s challenge.9 Id., 13. The
defendant in Stevens, however, did not dispute the facts
leading to the arrest or whether it was supported by
probable cause. Id., 12. Our Supreme Court concluded,
therefore, that ‘‘in the absence of a dispute as to the
validity of the arrest, giving effect to the breach of the no
[new] arrest condition does not violate due process.’’ Id.
The defendant argues that the court should have con-
ducted a Stevens hearing before finding that he violated
the no new arrests condition of the Garvin agreement.
The defendant further appears to argue that the hearing
to which he was entitled would include, in addition to
any inquiry regarding whether his Norwalk arrest was
supported by probable cause, an opportunity to contest
his ultimate criminal liability. In Stevens, however, our
Supreme Court determined that due process did not
require the court to find that the defendant actually
committed the postplea offense that led to her arrest
before concluding that she violated the Garvin
agreement. See id., 12–13. Thus, even if the court did
conduct a Stevens hearing in the present case, any evi-
dence relating to the defendant’s ultimate criminal lia-
bility would not have altered the court’s conclusion that
he violated the Garvin agreement.
Moreover, absent any indication that the defendant’s
Norwalk arrest was not valid, the court was free to
consider the arrest at sentencing without first holding
a Stevens hearing.10 ‘‘A sentencing judge has very broad
discretion in imposing any sentence within the statutory
limits . . . . To arrive at a just sentence, a sentencing
judge may consider information that would be inadmis-
sible for the purpose of determining guilt . . . .’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Huey, 199 Conn. 121, 126, 505 A.2d 1242 (1986). ‘‘The
trial court’s discretion, however, is not completely
unfettered. As a matter of due process, information may
be considered as a basis for a sentence only if it has
some minimal indicium of reliability.’’ Id., 127.
In the present case, there is nothing in the record to
suggest that the defendant’s Norwalk arrest lacked the
requisite minimal indicium of reliability necessary to
be considered at sentencing. Although the defendant
was arrested without a warrant, the court, Dennis, J.,
later determined, within the applicable forty-eight hour
period required by Practice Book § 37-12, that the arrest
was supported by probable cause. Moreover, at oral
argument and in response to questions from this court,
the defendant conceded that he was not challenging
whether there was a ‘‘legitimate basis’’ for the arrest—
in other words, he does not argue that the arrest lacked
probable cause.
Thus, because (1) any evidence pertaining to the
defendant’s ultimate criminal liability with respect to
the Norwalk arrest was irrelevant to the court’s determi-
nation that he breached the Garvin agreement, and (2)
there is nothing in the record to suggest that the arrest
lacked the requisite minimal indicium of reliability nec-
essary to be considered at sentencing, we conclude that
the defendant’s right to due process was not violated.
See State v. Yates, 169 Conn. App. 383, 401–403, 150
A.3d 1154 (2016), cert. denied, 324 Conn. 920, 157 A.3d
85 (2017) (sentencing court properly considered defen-
dant’s pending arrest warrants in deciding what sen-
tence to impose in light of defendant’s failure to comply
with ‘‘no new arrests’’ condition of Garvin agreement
where, inter alia, defendant never challenged whether
arrest warrants were supported by probable cause
[internal quotation marks omitted]). The defendant’s
claim, therefore, fails under the third prong of Golding.
The judgment is affirmed.
In this opinion the other judges concurred.
1
See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970); see also State v. Fairchild, 155 Conn. App. 196, 199 n.2, 108
A.3d 1162 (‘‘[a] criminal defendant who enters a guilty plea under the Alford
doctrine does not admit guilt but acknowledges that the state has sufficient
evidence to convict’’), cert. denied, 316 Conn. 902, 111 A.3d 470 (2015).
2
Hereinafter, all references to § 53a-217 in this opinion are to the 2013
revision of the statute.
3
Hereinafter, unless otherwise indicated, all references to § 29-36 in this
opinion are to the 2013 revision of the statute.
4
A Garvin agreement is a conditional plea agreement. See State v. Garvin,
242 Conn. 296, 300–302, 699 A.2d 921 (1997). Typically, a defendant who
enters into a Garvin agreement agrees to a particular sentence of incarcera-
tion, but wishes to be at liberty pending sentencing. Thus, the court will
release the defendant on bond prior to sentencing and, in exchange, the
defendant agrees to abide by certain conditions. Oftentimes, those condi-
tions include a requirement that the defendant appear at the sentencing
hearing and refrain from being arrested. If the defendant violates a condition
of the Garvin agreement, the court may impose a longer sentence than that
to which the defendant originally agreed. See id., 300–302, 309–14; see also
State v. Brown, 145 Conn. App. 174, 176 n.1, 75 A.3d 713, cert. denied, 310
Conn. 936, 79 A.3d 890 (2013).
5
We note that, at the time the defendant accepted the plea agreement,
the court did not explain to him in explicit terms that if he was subsequently
arrested, and that arrest was supported by probable cause, it would consti-
tute a violation of the Garvin agreement. The defendant, however, does
not challenge on appeal whether the Garvin canvass itself was proper.
6
Specifically, Meehan stated to the court: ‘‘If Your Honor please, I dis-
cussed with [the defendant] the fact that the court intends to move forward
and sentence him in accordance with . . . Garvin, based upon the circum-
stances of the new arrest. He has asked me to make application to the court
as follows. Either, one, that the court consider sentencing him to the original
plea bargain here in the case, which was six years to serve, two of which
were to be mandatory, on the criminal possession of a firearm, followed
by four years of special parole. Or, [in the] alternative, to continue this case
until the resolution of the latest case, his Norwalk arrest, which forms the
basis for the Garvin claim.
‘‘It’s [the defendant’s] contention—and he’s indicated this to his prior
counsel, [Attorney John] Imhoff, and also to Attorney O’Reilly who’s now
been appointed—that there is a witness in that case, a codefendant who
has in fact given a statement that exonerates him. So, if in fact that’s true,
and if in fact he prevails before a jury on the new charge, it really would be
somewhat unfair for him, to sentence him under Garvin on the technicality
of the arrest. So he’s asked me to make that application to the court. If
Your Honor chooses not to impose the original plea bargain sentence that
had been discussed, then I would ask Your Honor to continue this matter
indefinitely until the resolution of the pending Norwalk case.’’
7
The fact that the defendant pleaded guilty to those charges does not
render this appeal moot. In Council v. Commissioner of Correction, 286
Conn. 477, 486–88, 944 A.2d 340 (2008), our Supreme Court considered this
exact issue, namely, whether the fact that the petitioner pleaded guilty to
a charge stemming from a subsequent arrest rendered moot his claim that
the court should have allowed him to contest the validity of that arrest
before finding that he violated the Garvin agreement. In that case the
petitioner argued, and our Supreme Court agreed, that his claim on appeal
was not moot because the sentencing court had considered all of the charges
brought against him as a result of his subsequent arrest rather than the
single charge to which he ultimately pleaded guilty. Id., 488. The rest of the
charges were nolled by the state. Thus, our Supreme Court reasoned that
it was possible that, ‘‘if [the petitioner] were to prevail in this appeal, he
would not be precluded from attempting to establish on remand that there
was no basis for those charges. If the trial court were to agree . . . it might
impose a different sentence.’’ Id.
8
Although § 29-35 (a) was the subject of a technical amendment in 2016;
see Public Acts 2016, No. 16-193, § 9; that amendment has no bearing on
the merits of this appeal. In the interest of simplicity, we refer to the current
revision of the statute.
9
Although Stevens does not entirely delineate the scope of the requisite
inquiry, our reading of that case indicates that, typically, the issue would
be limited to whether there was probable cause to arrest the defendant.
10
The defendant argues that a defendant must affirmatively waive his
right to a Stevens hearing, citing State v. Stevens, supra, 278 Conn. 11–13,
and State v. Yates, 169 Conn. App. 383, 388, 401–403, 150 A.3d 1154 (2016),
cert. denied, 324 Conn. 920, 157 A.3d 85 (2017). Our appellate courts, how-
ever, have never imposed such a rule, nor do we think it is appropriate to
require a court to canvass a defendant regarding his or her right to a Stevens
hearing in every case with an alleged Garvin violation. Presumably, a defen-
dant is the person most likely in possession of any information undermining
the validity of the arrest that formed the basis of the Garvin violation and,
thus, would know whether a hearing might be appropriate.