State v. Perez ( 2017 )

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STATE OF CONNECTICUT v. JULIAN PEREZ
(AC 38129)
Prescott, Mullins and Bear, Js.
Argued January 31—officially released May 9, 2017
(Appeal from Superior Court, judicial district of
Hartford, geographical area number fourteen, Avallone,
J. [judgment]; Dewey, J. [motion for return of seized
property].)
Mitchell Lake, for the appellant (defendant).
Toni M. Smith-Rosario, senior assistant state’s attor-
ney, with whom, on the brief, were Gail P. Hardy,
state’s attorney, and Thomas J. O’Brien, senior assis-
tant state’s attorney, for the appellee (state).
Opinion
PRESCOTT, J. The issue before us in the present
appeal is whether, following the dismissal of all charges
against the defendant, Julian Perez, the trial court prop-
erly denied his motion requesting the return of a
revolver that the police had seized at the time of his
arrest.1 The defendant appeals from the judgment of
the court denying his second motion for the return of
seized property. He claims on appeal that the court
committed plain error by finding that defense counsel
had agreed to forfeit the revolver as part of negotiations
with the state that resulted in the dismissal of the
charges.2 The state argues that the record simply is
inadequate for review of the defendant’s claim or, in
the alternative, that the defendant has failed to establish
that the court’s decision was plain error. On the basis
of the record presented, we cannot conclude that the
trial court improperly denied the defendant’s motion,
and, accordingly, we affirm the judgment of the court.
The record reveals the following facts. On May 22,
2014, the defendant was arrested by the Hartford Police
Department on charges of disorderly conduct in viola-
tion of General Statutes § 53a-182, threatening in the
second degree in violation of General Statutes § 53a-
62, and possession of marijuana in violation of General
Statutes § 21a-279 (c).3 At the time of the arrest, the
police seized from the defendant a concealed, loaded
revolver for which he had a valid permit to carry.
The defendant was arraigned the following day, and
the trial court, T. Santos, J., found probable cause for
all the charges. The court appointed Jonathan Newman,
an assistant public defender, to represent the defendant
for bond purposes only. The defendant was released
on a promise to appear on June 16, 2014, with the
conditions that he (1) surrender to the police any addi-
tional firearms he owned, (2) have no contact with the
victim or the residence where the arrest occurred, and
(3) submit to a drug test on his next court date.
On June 16, 2014, the defendant appeared and asked
for a continuance to June 23, 2014, which the court
granted. Although there was no appearance on file, the
assistant state’s attorney, Thomas J. O’Brien, indicated
to the court on the record that the defendant’s lawyer,
who he identified as ‘‘Attorney Lawlor,’’ had asked for
the continuance. On June 23, 2014, O’Brien indicated
to the court that the defendant had rendered a negative
drug test, and, by agreement, the parties were
requesting a new court date of July 7, 2014, ‘‘[f]or a
possible offer that day.’’ The court agreed. On July 7,
2014, the matter was continued by the court to July 28,
2014, because defense counsel ‘‘was not able to make
it.’’ The parties appeared again on July 28, 2014, at which
time the court, at O’Brien’s request, agreed to mark
the matter over to September 12, 2014, because the
defendant was ‘‘going to engage in some counseling in
an effort to try to resolve this case.’’ On September 12,
2014, O’Brien asked that the matter be docketed for
judicial pretrial on October 17, 2014. He indicated to
the court that an offer had been extended to the defen-
dant, ‘‘and if he chooses to comply with that, I’ll honor
the offer prior to the pretrial.’’ The details of that offer
were not discussed on the record.
The defendant failed to appear for the October 17,
2014 court date, and a bail commissioner’s letter was
sent, ordering the defendant to appear on November
14, 2014. At the November 14, 2014 hearing, O’Brien
asked the court to mark the matter over by agreement
to December 18, 2014, ‘‘as a possible diversionary mark-
ing.’’ On December 18, 2014, O’Brien informed the court
that the defendant had been compliant with all condi-
tions of his release. He asked the court to continue the
matter to May 22, 2015, as a diversionary marking, and
indicated that, if the defendant remained compliant and
there were no arrests or other problems, the state would
enter a nolle prosequi to the charges and not oppose
a dismissal. The court agreed to the state’s request.
The case returned to the court, Avallone, J., on May
22, 2015.4 At that time, O’Brien represented to the court
that ‘‘[the defendant] was compliant with all the condi-
tions the court set. He completed the mediation pro-
gram. And based on that, the state will enter a nolle
and recommend a dismissal.’’ There was no discussion
on the record of any agreement between the state and
the defendant regarding the property that was seized
at the time of the defendant’s arrest. The court noted
the nolles and then dismissed all charges against the
defendant. On the same date, the court also signed
orders on form JD-CR-18, Inventory of Property Seized
Without a Search Warrant, adjudicating as ‘‘contra-
band’’ all of the items on the inventory list of property
seized—the revolver, the holster, the five rounds of
ammunition, and the defendant’s permit to carry a pistol
or revolver—and ordered them turned over to the Con-
necticut State Police’s Bureau of Identification for
destruction. Notice of that order was issued to the Hart-
ford Police Department on May 26, 2015. There is no
indication in the record that the defendant was present
when the court disposed of the seized property or that
he was provided notice of the disposition.5
On June 3, 2015, the defendant, acting without coun-
sel, filed a motion for return of seized property. That
motion stated in its entirety: ‘‘1. I respectfully request
this court to order the return of property seized by
Hartford Police on May 22, 2014. 2. The item that was
seized and that I request be returned is one Ruger LCR
revolver [and] one State of Connecticut pistol permit
ID card. 3. I request this return because all alleged
charges in the matter have been dismissed in court.’’
The court, Hon. Thelma A. Santos, judge trial referee,
heard the motion for return of property the following
day on June 4, 2015. O’Brien indicated to the court on
the record that the motion was ‘‘a write-in,’’ that the
defendant was not present, that he had been repre-
sented by counsel when his case was dismissed on May
22, 2015, and that ‘‘[t]here was no agreement on the
property on the dismissal date.’’6 The record does not
indicate whether the defendant had been provided with
notice of the hearing. The state argued that Judge Aval-
lone had ordered the property destroyed and that,
because neither the defendant nor his counsel was pre-
sent at the hearing to argue his motion, Judge Avallone’s
order should stand. The court denied the defendant’s
motion without engaging in any discussion or analysis
of the basis for such a decision. The state asked if the
items could be destroyed as previously ordered, and
the court answered in the affirmative. The defendant
did not file an appeal challenging Judge Avallone’s dis-
position of the property or Judge Santos’ order denying
his motion, but the record is silent as to whether the
defendant had notice of either order.
Instead, on June 23, 2015, the defendant filed a second
motion for the return of seized property, which is the
subject of the present appeal. The second motion was
nearly identical to the first, except that it also asked
for the return of the seized holster in addition to the
revolver and permit, and included that ‘‘[t]he items were
wrongfully ordered to be destroyed.’’ A brief hearing
on the motion was held before the court, Dewey, J., on
June 25, 2015. The defendant appeared without his
counsel.
At the hearing, O’Brien indicated to the court that the
items the defendant sought to have returned previously
had been ordered turned over to the state police for
destruction and a prior motion by the defendant for
the return of the property had been denied. O’Brien
recounted that the underlying charges involved alcohol
and an allegation that the ‘‘gun was threatened to be
displayed,’’ as reflected in the arrest report attached to
the motion. The state’s position was that the gun should
not be ordered returned to the defendant.
The court asked the defendant to explain why the
items should be returned to him after they already had
been ordered destroyed by another judge. The defen-
dant first explained that he had not been timely notified
of the hearing on his first motion for return of seized
property, ‘‘which is probably why it was denied the
first time.’’ The defendant next argued that his former
defense counsel should have filed whatever paperwork
was necessary to have the seized property returned,
but ‘‘[t]hese were his quote, unquote tactics of getting
the case dismissed. He didn’t want to file any paperwork
until it was over.’’ (Emphasis added.) The defendant
stated that he first learned that the revolver had been
ordered destroyed when he called the Hartford Police
Department after his case was dismissed to discuss
retrieving his property.
The court indicated to the defendant that it under-
stood his arguments regarding notice, but that the court
also understood the defendant as having admitted that
his defense counsel forfeited his rights to the revolver
as a plea bargaining tactic, and that the state had relied
on this representation in agreeing to enter nolles on
the charges against him. The court explained: ‘‘[W]hen
you admit that it’s part of a trial tactic, it’s difficult for
me to say, now, well, that was part of the agreement
to get the dismissal. But, now, I want the gun back.’’ The
defendant argued that he did not learn of his counsel’s
tactics until ‘‘after the fact,’’ but the court stated that
issue was ‘‘between you and your lawyer. Unfortu-
nately, the state relies on the lawyer’s representations
when it enters the offers.’’ The court then asked O’Brien
whether its understanding of the situation was correct,
to which O’Brien replied: ‘‘Correct. Correct. Your
Honor, my recollection is I had discussions with counsel
about this pursuant to the plea.’’ The defendant never
disputed the court’s characterization of his argument
as an admission that his counsel had agreed to the
forfeiture of the revolver as part of a plea agreement,
nor did he dispute the assistant state’s attorney’s repre-
sentation that such an agreement existed. The court
denied the defendant’s second motion for return of
seized property and ordered that the revolver be
destroyed. The court explained that it was denying the
motion ‘‘on the basis that was part of the agreement.
Whether you knew it or not, that was part of the
agreement. And the state relied on that. You have to
file an appeal.’’7 This appeal followed.
The defendant claims on appeal that the court
improperly denied his second motion for the return of
his revolver. In support of that claim, the defendant
argues that (1) the state, in order to obtain a forfeiture,
was obligated to first initiate an in rem proceeding
pursuant to General Statutes § 54-33g, (2) the record
does not reflect that the revolver was forfeited pursuant
to General Statutes § 54-36a (e), and (3) defense counsel
lacked authority to enter into a disposition of the crimi-
nal charges that involved a disposition of the defen-
dant’s revolver because he never ratified any such
agreement. We are not persuaded.
We begin our discussion with the applicable standard
of review. Although we have not had occasion pre-
viously to set forth our standard of review for a trial
court’s decision on a motion seeking the return of seized
property, the scope of our review is a familiar one. If
the legal conclusions of the court are challenged, we
determine if they are legally and logically correct and
whether they find support in the facts; and, to the extent
that the factual basis of the court’s ruling is challenged,
we determine if the facts relied upon by the court are
supported by the evidence or if, in light of the evidence
and the record as a whole, those facts are clearly errone-
ous. See State v. Owens, 38 Conn. App. 801, 804–805,
663 A.2d 1094, cert. denied, 235 Conn. 912, 665 A.2d
609 (1995).
We next briefly set forth the applicable law that gov-
erns the final disposition of property seized at the time
of arrest without a warrant, which, in relevant part, is
set forth in § 54-36a. Subsection (c) of § 54-36a provides:
‘‘Unless such seized property is stolen property and is
ordered returned pursuant to subsection (b) of this
section or unless such seized property is adjudicated
a nuisance in accordance with section 54-33g, or unless
the court finds that such property shall be forfeited or
is contraband, or finds that such property is a controlled
drug, a controlled substance or drug paraphernalia as
defined in subdivision (8), (9) or (20) of section 21a-
240, it shall, at the final disposition of the criminal action
or as soon thereafter as is practical, or, if there is no
criminal action, at any time upon motion of the prose-
cuting official of such court, order the return of such
property to its owner within six months upon proper
claim therefor.’’
Before turning to the particular arguments advanced
by the defendant, we recognize initially that the record
before this court is exceedingly sparse. The defendant,
as the appellant, has the burden of providing this court
with an adequate record to review his claims of error.
See Practice Book § 61-10; State v. Cotto, 111 Conn.
App. 818, 820–21, 960 A.2d 1113 (2008). There is no
evidence in the record disclosing the precise details of
any agreement that may have been entered into by
defense counsel and the state regarding the disposition
of seized property generally and, more specifically,
whether the defendant’s counsel agreed to the destruc-
tion of the revolver as contraband in order to secure a
dismissal of the charges against the defendant. Never-
theless, we construe the court’s decision to deny the
defendant’s motion as resting upon its finding that such
an agreement existed. We cannot conclude that that
finding is clearly erroneous on the basis of the record
before us.
I
The defendant first argues that he was entitled to the
return of the revolver because the state failed to initiate
an in rem proceeding regarding the revolver in accor-
dance with § 54-33g. We disagree.
Section § 54-33g authorizes the state to file a civil
action in rem for the purpose of determining whether
property ‘‘has been used in violation of the law and is
thus subject to forfeiture.’’ State v. Gaudio, 19 Conn.
App. 588, 591, 562 A.2d 1156 (1989). As explained, how-
ever, by this court in State v. Garcia, 108 Conn. App.
533, 553, 949 A.2d 499, cert. denied, 289 Conn. 916, 957
A.2d 880 (2008), ‘‘seized [property] does not require in
rem forfeiture proceedings, as unseized property does.’’
(Emphasis omitted.) Accordingly, because the defen-
dant’s revolver was seized by police incident to his
arrest, the state was not required to initiate an in rem
civil proceeding in this case, and the court had the
authority to dispose of the revolver as part of the crimi-
nal proceedings in accordance with § 54-36a (c). Id.,
554. The defendant’s argument to the contrary simply
lacks merit.
II
The plaintiff next argues that he was entitled to the
return of his property because it was never forfeited
in accordance with § 54-36a (e). We are not persuaded.
Section 54-36a (e) provides in relevant part that, with
certain exceptions not relevant here, if ‘‘seized property
is adjudicated a nuisance or if the court finds that such
property shall be forfeited or is contraband . . . the
court shall order that such property be destroyed
. . . .’’
As part of his disposition of the defendant’s criminal
charges, Judge Avallone found, in accordance with § 54-
36a (e), that the revolver, ammunition, holster and per-
mit were contraband, and he forfeited ownership of
them to the state to be destroyed. Even assuming that
the defendant was not provided notice of Judge Aval-
lone’s decision forfeiting his ownership rights to the
seized property, by his own admission, he soon there-
after learned from the police department that the court
had ordered the items destroyed. Rather than challenge
that ruling by filing an appeal, the defendant filed two
consecutive motions seeking a new order first directing
the police to return the revolver and permit to him as
the rightful owner, and second adding the holster to
the property to be returned.
Because the defendant never challenged Judge Aval-
lone’s finding that the items were contraband and, thus,
subject to forfeiture, by filing an appeal to this court,
that finding remained the ‘‘law of the case.’’ Judge
Dewey, in disposing of the defendant’s second motion
for return of seized property, was not asked and was
under no obligation to readjudicate that finding sua
sponte. In short, there is simply no merit to the defen-
dant’s argument that the revolver should have been
returned because it was never properly forfeited in
accordance with § 54-36a.
III
Finally, the defendant argues that the court should
have granted his motion for return of seized property
and ordered the return of his revolver because he never
authorized his defense counsel to forfeit his revolver
as part of plea negotiations. This argument is unper-
suasive.
As previously indicated, the court’s decision to deny
the defendant’s motion was not made on the basis of
an independent determination as to whether the
revolver was contraband, but upon the representations
made by the assistant state’s attorney and the defendant
that the defendant’s counsel had forfeited on behalf of
the defendant any claim to the revolver as part of plea
negotiations. Although Judge Dewey did not conduct
an evidentiary hearing before ruling on the defendant’s
motion, the defendant never asked her to do so. See
State v. Nguyen, 253 Conn. 639, 660, 756 A.2d 833 (2000)
(trial court has no duty to conduct evidentiary hearing
sua sponte). The defendant did not ask to submit any
evidence to the court in support of his motion or argue
that there was a lack of evidence regarding the specifics
of any plea agreement. Although unsworn representa-
tions by counsel ordinarily ‘‘are not ‘evidence’ upon
which an appellate court can rely when reviewing the
findings of the trial court; State v. Carsetti, 12 Conn.
App. 375, 379, 530 A.2d 1095, cert. denied, 205 Conn.
809, 532 A.2d 77 (1987); the defendant did not challenge
those representations to preserve any claim based on
those representations. See State v. Smith, 289 Conn.
598, 609, 960 A.2d 993 (2008). In addition to not challeng-
ing the statements made by O’Brien to the court, the
defendant also failed to challenge the court’s character-
ization of his own statement as an admission that an
agreement was entered into by defense counsel as a
trial tactic to secure dismissal of all charges.
The defendant never argued before the trial court
that his attorney was not authorized to negotiate on
his behalf regarding the disposition of the revolver.
He makes that argument for the first time on appeal.
Regardless, even if true, his lack of knowledge or con-
sent to an agreement does not negate the court’s finding
that an agreement in fact was made and that the state
relied upon defense counsel’s authority in agreeing to
enter nolles on the charges against the defendant.
In sum, as the proponent of the motion for return
of seized property, it was the defendant’s burden to
establish his entitlement to the return of that property.
We cannot conclude on the basis of the record pre-
sented that the defendant met that burden or that the
court’s decision to deny his motion was improper.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The police also seized five rounds of ammunition, the revolver’s holster,
the defendant’s permit to carry a pistol or revolver, and a small amount of
marijuana. On appeal, the defendant only challenges the court’s decision
not to return his revolver.
2
Although, in his appellate brief, the defendant invokes the plain error
doctrine as the appropriate standard of review, that invocation is misplaced.
‘‘[T]he plain error doctrine . . . 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 judgment, for reasons of policy.’’ (Internal quotation marks
omitted.) State v. Sanchez, 308 Conn. 64, 77, 60 A.3d 271 (2013). Having
reviewed the record, we conclude that the defendant preserved his claim
that the court improperly determined that defense counsel agreed on behalf
of the defendant to forfeit the revolver as part of plea negotiations with the
state, and, thus, we review the claim on that basis. Although, in its appellate
brief, the state understandably limits its analysis to plain error because that
is the standard the defendant invoked, the state cannot claim prejudice from
our decision to address his claim in that manner because we, nonetheless,
determine on the basis of that review that the defendant’s claim fails.
3
According to the police report, a copy of which the parties appended
to their appellate briefs, two uniformed officers heard a disturbance coming
from a nearby property. Upon investigating, they discovered the defendant
and another male at the rear of the property engaged in a heated argument.
As they approached, the officers alleged that they heard the defendant state
loudly to the other male: ‘‘Shut the hell up, I’ll shoot you, don’t you know
I have a fucking gun!’’ The officers took both individuals into custody, during
which they discovered a holstered revolver loaded with five rounds of
ammunition concealed on the defendant’s right side. The defendant also
possessed a small quantity of marijuana. The marijuana and the revolver,
along with its holster and five rounds of ammunition, were tagged as evi-
dence. A Connecticut permit to carry the revolver issued to the defendant
also was seized and tagged for ‘‘safe keeping’’ pending a referral to the
issuing agency. The defendant’s permit later was revoked.
4
There is no indication in the transcript whether the defendant appeared
before the court or, if he did appear, whether he was accompanied by
counsel.
5
Although the defendant has not appealed from Judge Avallone’s May 22,
2015 order, and, thus, the propriety of that order is not squarely before us,
we note that the court appears to have utilized the firearms/contraband
portion of form JD-CR-18 to dispose of certain items on the inventory list—
in particular, the holster and the permit to carry a pistol or revolver—that,
on their face, do not appear to be contraband as that term is defined by
statute. General Statutes § 54-36a defines ‘‘[c]ontraband’’ as ‘‘any property,
the possession of which is prohibited by any provision of the general statutes
. . . .’’ The record is silent as to why the court adjudged those particular
items as contraband and ordered them destroyed, or on what basis the court
determined that the revolver and ammunition were contraband if, as it
appears from the record, they were lawfully possessed by the defendant at
the time he was arrested. Furthermore, there is nothing in the record that
definitively establishes that Judge Avallone determined that the property
had been forfeited by agreement of the parties or as part of any diversionary
program. In accordance with § 54-36a (c), items seized in connection with
a criminal arrest that are not stolen property, contraband, illicit drugs, or
drug paraphernalia ordinarily should be returned to the property’s owner
upon final disposition of the criminal action or as soon thereafter as is
practical. The record simply does not satisfactorily support the court’s initial
disposition of the property in this case. Nevertheless, the issue before us
is whether Judge Dewey properly refused to issue an order countermanding
the disposition ordered by Judge Avallone.
6
This statement appears to contradict O’Brien’s later assertion before
Judge Dewey that he and defense counsel had agreed that the defendant
would not make a claim for the return of the weapon in exchange for the
favorable disposition of his case.
7
The court had explained earlier to the defendant that the order that the
revolver be destroyed would be stayed for a very short statutory time period
in which the defendant could file an appeal from the court’s order.