State v. Baldwin , 183 Conn. App. 167 ( 2018 )

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STATE OF CONNECTICUT v. LEE BALDWIN
(AC 40283)
DiPentima, C. J., and Alvord and Flynn, Js.
Syllabus
Convicted, on a guilty plea pursuant to the Alford doctrine, of the crime of
risk of injury to a child and of violation of probation, the defendant
appealed to this court, claiming that the trial court improperly denied
his motion to modify the terms and conditions of probation. As part of
the defendant’s plea agreement, he was required to register as a sex
offender and to participate in sex offender treatment. Subsequently, the
defendant commenced a habeas action, alleging ineffective assistance
of trial counsel regarding his Alford plea. Thereafter, the defendant filed
a motion to modify the conditions of his probation, in which he requested
that he not be required to discuss any facts in connection with his
conviction or other facts for which he had a right against self-incrimina-
tion until after the conclusion of his habeas litigation. He also sought
to suspend his sex offender treatment until the resolution of his habeas
case. Held:
1. The defendant could not prevail on his claim that the trial court’s denial
of his motion to modify the conditions of his probation violated his fifth
amendment privilege against self-incrimination in future proceedings,
the defendant having waived his claim by entering an Alford plea and
expressly agreeing, on the record, to participate in sex offender treat-
ment, including admitting to the conduct that resulted in his Alford plea;
the court specifically informed the defendant on two occasions during
the plea hearing that he would be required to participate in sex offender
treatment and that as part of such treatment, he would be required to
admit to committing acts that constituted the violation of his probation,
the defendant accepted those conditions and garnered the benefits of
his plea bargain with the state, and in doing so, he waived the right to
challenge the conditions that he participate in sex offender treatment
and admit to his conduct.
2. The defendant’s claim that the trial court abused its discretion in denying
his motion to modify and not allowing him to delay participating in sex
offender treatment until after the conclusion of his pending habeas
matter was unavailing, the defendant having expressly waived his objec-
tion to participating in sex offender treatment, and having failed to
demonstrate that the trial court, in concluding that policy and public
safety concerns do not warrant the suspension of the sex offender
treatment, abused its discretion in denying his motion to modify the
conditions of his probation.
Argued April 9—officially released July 3, 2018
Procedural History
Substitute information charging the defendant with
the crimes of risk of injury to a child and sexual assault
in the fourth degree, and with two counts of violation of
probation, brought to the Superior Court in the judicial
district of New Haven, geographical area number
twenty-three, where the defendant was presented to
the court, Cradle, J., on a plea of guilty to risk of injury
to a child and an admission to the violations of proba-
tion; judgment in accordance with the plea; thereafter,
the court denied the defendant’s motion to modify the
conditions of his probation, and the defendant appealed
to this court. Affirmed.
Temmy Ann Miller, assigned counsel, with whom,
on the brief, was Scott Jongebloed, for the appellant
(defendant).
Laurie N. Feldman, special deputy assistant state’s
attorney, with whom, on the brief, were Patrick J. Grif-
fin, state’s attorney, and Donald S. MacCalmon, assis-
tant state’s attorney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Lee Baldwin,
appeals challenging the denial of his motion to modify
the terms and conditions of his probation filed pursuant
to General Statutes § 53a-30 (c). Specifically, he claims
that (1) the court’s denial violated his fifth amendment
privilege against self-incrimination in a future proceed-
ing and (2) the court abused its discretion in denying
the motion to modify and not allowing the defendant
to delay his sex offender treatment until his pending
habeas action had concluded. We affirm the judgment
of the trial court.
The following facts and procedural history are rele-
vant to our discussion. On July 11, 2014, the defendant
pleaded guilty, pursuant to the Alford doctrine,1 to two
counts of violating his probation and one count of risk
of injury to a child.2 During discussions, on the record,
just prior to the plea canvass, defense counsel noted
that the defendant ‘‘realizes during his [sex offender]
treatment he has to admit to the underlying conduct.’’
The court immediately asked the defendant if he had
discussed this requirement with his counsel, and he
responded in the affirmative. The defendant also
acknowledged that the court would require him to regis-
ter as a sex offender.
During the canvass, the court repeated that, due to
the nature of the defendant’s conduct, he would be
required to register as a sex offender. The court also
informed the defendant that he would be required to
participate in sex offender treatment during his proba-
tion. The court then stated: ‘‘Now, what is important
for you to understand is that during the period of your
probation, when you go to sex offender treatment they
are going to require you to acknowledge that you’ve
committed the acts that you are charged with today
and that you’ve [pleaded] to. You understand what I
mean by that?’’ The defendant responded in the affirma-
tive. The court then cautioned the defendant as follows:
‘‘Okay. Because if you don’t acknowledge that you com-
mitted the act that can be a violation of probation and
then you would come back here and the state would
be looking for you to serve eight years in jail. Any
questions about that?’’ The defendant responded in
the negative.
The court accepted the defendant’s plea, finding that
it was made knowingly and voluntarily with the assis-
tance of competent counsel. On September 23, 2014,
the court sentenced the defendant to ten years incarcer-
ation, execution suspended after two years, and five
years probation. The court also required the defendant
to register as a sex offender and to participate in sex
offender treatment. In March, 2016, the defendant com-
menced a habeas action, alleging ineffective assistance
of counsel with respect to his Alford plea on July 11,
2014.
On May 31, 2016, the defendant filed a motion to
modify the conditions of his probation pursuant to
§ 53a-30 (c).3 He requested that ‘‘he not be required to
discuss any aspect of the facts underlying his conviction
or other facts for which he has a [f]ifth [a]mendment
privilege against self-incrimination [in sex offender
treatment] until after petitioner’s habeas litigation
has concluded.’’
At a hearing on July 18, 2016, defense counsel
explained that the defendant was seeking to stay his
sex offender treatment until the resolution of his habeas
case. The state filed its written response to the defen-
dant’s motion on August 5, 2016. It argued that the
defendant had not shown good cause as required by
§ 53-30 (c) and that the defendant was made fully aware
of the terms of his guilty plea, including participating
in sex offender treatment and admitting to his crimi-
nal actions.
On September 12, 2016, the court, after hearing briefly
from the parties, issued its oral decision denying the
defendant’s motion to modify the terms of his proba-
tion. At the outset, it noted that sex offender treatment
was part of the defendant’s guilty plea pursuant to the
Alford doctrine. It further determined that the require-
ment that the defendant participate in sex offender
treatment as part of his probation did not affect the
merits of his pending habeas action. Additionally, the
court concluded that there were policy and public safety
concerns that did not warrant the suspension of his sex
offender treatment. The court also rejected the defen-
dant’s arguments regarding the fifth amendment privi-
lege against self-incrimination. This appeal followed.
Additional facts will be set forth as necessary.
I
The defendant first claims that the court’s denial of
his motion to modify the conditions of his probation
violated his fifth amendment privilege against self-
incrimination in future proceedings. Specifically, he
argues that the court ‘‘failed to protect [his] privilege
against self-incrimination when it refused to hold in
abeyance the requirement that he respond to incrimi-
nating questions [in sex offender treatment] that could
be used against him in a new prosecution.’’ We conclude
that the defendant waived this claim by expressly agree-
ing, on the record, to participate in sex offender treat-
ment, including admitting to the conduct that resulted
in his Alford plea.
The following legal principles inform our analysis.
‘‘A plea of guilty is, in effect, a conviction, the equivalent
of a guilty verdict by a jury. . . . In choosing to plead
guilty, the defendant is waiving several constitutional
rights, including his privilege against self-incrimination,
his right to trial by jury, and his right to confront his
accusers. . . . These considerations demand the
utmost solicitude of which courts are capable in can-
vassing the matter with the accused to make sure he
has a full understanding of what the plea connotes and
its consequences. . . . The United States Supreme
Court has held that for the acceptance of a guilty plea
to comport with due process, the plea must be volunta-
rily and knowingly entered. Boykin v. Alabama, 395
U.S. 238, 243–44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).’’
(Citation omitted; internal quotation marks omitted.)
State v. Moye, 119 Conn. App. 143, 163, 986 A.2d 1134,
cert. denied, 297 Conn. 907, 995 A.2d 638 (2010).
By entering an Alford plea4 in the present case, the
defendant waived, inter alia, his right against self-
incrimination. Additionally, the court specifically
informed the defendant on two occasions during the
plea hearing that he would be required to participate
in sex offender treatment. Furthermore, the court
apprised the defendant that as part of his treatment,
he would be required to admit to committing acts that
constituted the violation of his probation.
The defendant accepted these conditions and gar-
nered the benefits of his plea bargain with the state. In
doing so, he expressly waived the right to challenge the
conditions that he participate in sex offender treatment
and admit to his conduct. ‘‘Waiver is an intentional
relinquishment or abandonment of a known right or
privilege. . . . It involves the idea of assent, and assent
is an act of understanding. . . . The rule is applicable
that no one shall be permitted to deny that he intended
the natural consequences of his acts and conduct. . . .
In order to waive a claim of law it is not necessary . . .
that a party be certain of the correctness of the claim
and its legal efficacy. It is enough if he knows of the
existence of the claim and of its reasonably possible
efficacy. . . . Connecticut courts have consistently
held that when a party fails to raise in the trial court
the constitutional claim presented on appeal and affirm-
atively acquiesces to the trial court’s order, that party
waives any such claim.’’ (Internal quotation marks omit-
ted.) State v. Klinger, 103 Conn. App. 163, 170–71, 927
A.2d 373 (2007); cf. State v. Obas, 320 Conn. 426, 444–45,
130 A.3d 252 (2016) (because it was undisputed that
defendant did not explicitly waive right to file applica-
tion for exemption for sex offender registration and
plea agreement was ambiguous, court would not infer
from defendant’s assent to register as sex offender for
ten years that he forfeited his statutory right to
request exemption).
In Klinger, the defendant claimed, inter alia, that the
condition of probation requiring him to repay a certain
financial institution was improper. State v. Klinger,
supra, 103 Conn. App. 170. In concluding that the defen-
dant had waived this claim, we noted that he had ‘‘acqui-
esced in the conditions of probation imposed by the
court.’’ Id., 171. Furthermore, ‘‘[a]fter the state sug-
gested additional conditions of probation, defense
counsel was given the opportunity to object and refused
to make an objection.’’ Id. We determined that under
these facts and circumstances, the defendant had
waived any objection to his conditions of probation.
Id. See generally United States v. Mezzanatto, 513 U.S.
196, 201, 115 S. Ct. 797, 130 L. Ed. 2d 697 (1995) (criminal
defendant may knowingly and voluntarily waive many
of most fundamental protections afforded by United
States constitution). In the present case, during his plea
canvass, the defendant waived any objection to partici-
pating in sex offender treatment and the requirement
that he admit to the conduct that led to the violation
of his probation. Accordingly, we decline to consider
this appellate claim.
II
The defendant also claims that the court abused its
discretion in denying the motion to modify and not
allowing him to delay participating in sex offender treat-
ment until his pending habeas action had concluded.
Specifically, the defendant argues that the court misin-
terpreted his claim5 regarding his fifth amendment con-
cerns and gave improper weight to the state’s public
interest argument. We are not persuaded by these
arguments.
‘‘Probation is the product of statute. . . . Statutes
authorizing probation, while setting parameters for
doing so, have been very often construed to give the
court broad discretion in imposing conditions.’’ (Cita-
tion omitted; internal quotation marks omitted.) State
v. Crouch, 105 Conn. App. 693, 696–97, 939 A.2d 632,
635 (2008). Section 53a-30 (c) authorizes a court to
modify the terms of probation for ‘‘good cause.’’ State
v. Obas, 147 Conn. App. 465, 482, 83 A.3d 674 (2014),
aff’d, 320 Conn. 426, 130 A.3d 252 (2016). ‘‘It is well
settled that the denial of a motion to modify probation
will be upheld so long as the trial court did not abuse
its discretion. . . . On appeal, a defendant bears a
heavy burden because every reasonable presumption
should be given in favor of the correctness of the court’s
ruling. . . . The mere fact that the denial of a motion
to modify probation leaves a defendant facing a lengthy
probationary period with strict conditions is not an
abuse of discretion. Rather, [r]eversal is required only
where an abuse of discretion is manifest or where injus-
tice appears to have been done.’’ (Citations omitted;
internal quotation marks omitted.) State v. Denya, 149
Conn. App. 714, 718, 89 A.3d 455 (2014).
In part I of this opinion, we concluded that the defen-
dant expressly waived his objection to participating in
sex offender treatment and to admitting to his conduct
that underlies his fifth amendment claim. Additionally
we conclude that the defendant has failed to demon-
strate that the trial court, in concluding that the ‘‘policy
and public safety concerns . . . do not warrant the
suspension of [the sex offender treatment,]’’ abused its
discretion in denying his motion to modify the condi-
tions of his probation. This claim, therefore, must fail.
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed.
2d 162 (1970), a criminal defendant is not required to admit his guilt . . .
but consents to being punished as if he were guilty to avoid the risk of
proceeding to trial. . . . A guilty plea under the Alford doctrine is a judicial
oxymoron in that the defendant does not admit guilt but acknowledges that
the state’s evidence against him is so strong that he is prepared to accept
the entry of a guilty plea nevertheless. . . . A defendant often pleads guilty
under the Alford doctrine to avoid the imposition of a possibly more serious
punishment after trial.’’ (Citation omitted; internal quotation marks omitted.)
Robles v. Commissioner of Correction, 169 Conn. App. 751, 752 n.1, 153
A.3d 29 (2016), cert. denied, 325 Conn. 901, 157 A.3d 1146 (2017).
2
During this proceeding, the prosecutor indicated that the defendant was
on probation following his conviction of the crimes of breach of the peace
and possession of narcotics. The conduct underlying the violation of proba-
tion and risk of injury to a child charges was a sexual contact complaint.
Specifically, the minor victim ‘‘disclosed that the defendant had touched
his butt and penis underneath his clothes and that it [had] happened more
than once.’’
3
General Statutes § 53a-30 (c) provides: ‘‘At any time during the period
of probation or conditional discharge, 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.’’
4
We note that ‘‘[t]he entry of a guilty plea under the Alford doctrine
carries the same consequences as a standard plea of guilty.’’ State v. Faraday,
268 Conn. 174, 205, 842 A.2d 567 (2004).
5
Specifically, the defendant argued in his brief that the court ‘‘failed to
appreciate that the defendant sought to preserve his right not [to] have
statements he made during sex offender treatment used against [him] in a
reprosecution of the charges he had been convicted of and which he was
challenging via a habeas petition. The lower court mistakenly understood
his claim to be that he had the right to assert his privilege against self-
incrimination during the habeas trial.’’