State v. Mitchell ( 2020 )

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STATE OF CONNECTICUT v. JAMES MITCHELL
(AC 41769)
DiPentima, C. J., and Elgo and Moll, Js.
Syllabus
The defendant, who previously had admitted to a violation of probation and
been convicted on guilty pleas of two counts of possession of a controlled
substance, appealed to this court from the judgment of the trial court
denying his amended motion to correct an illegal sentence. In June,
2003, the defendant admitted to a violation of probation, pleaded guilty
to two counts of possession of a controlled substance, and entered into
a Garvin agreement. In October, 2005, the trial court found a Garvin
violation, revoked the defendant’s probation, and sentenced him to six
years of incarceration for violating his probation and one year of incar-
ceration for each of the possession charges to be served concurrently.
Thereafter, the defendant filed a motion to correct an illegal sentence,
which the trial court denied. In his motion, the defendant alleged that
the conditions imposed on him by the Garvin agreement expired on
March 12, 2004, and that the sentence was imposed illegally because
he did not receive notice of the October, 2005 sentencing date as required
under the applicable rule of practice (§ 43-29). On appeal to this court,
the defendant claimed, inter alia, that the sentence was imposed in an
illegal manner in violation of Santobello v. New York (404 U.S. 257)
because he was sentenced after the nine month period of the Garvin
agreement had ended. Held:
1. The defendant could not prevail on his claim that the sentence was
imposed in an illegal manner in violation of Santobello; although the
defendant contended that he was to be sentenced within nine months
of the plea agreement, there was no indication that the terms of the
plea agreement included a requirement that the defendant be sentenced
within the nine month period and, during the plea canvass, the trial
court recited the terms of the plea agreement twice to the defendant
and neither of those recitations included language requiring sentencing
to take place within the nine month period.
2. The defendant could not prevail on his claim that the sentence was
imposed in an illegal manner because he was not given adequate notice
of the sentencing hearing; although the defendant claimed that he did
not receive notice of the sentencing hearing, he waived any challenge
to notice where, as here, his counsel told the trial court that the defendant
was prepared to be sentenced that day, he declined to speak at the
hearing, and he expressed no opposition to defense counsel’s statement
at the hearing.
3. The trial court did not abuse its discretion in denying the motion to
correct an illegal sentence, as the defendant’s claim that he was not
provided the opportunity to be heard or to present evidence at the
sentencing hearing was unavailing; defense counsel told the trial court
that the defendant was ready to proceed, neither defense counsel nor
the defendant protested to the trial court that the defendant was being
denied the opportunity to be heard or to present evidence, and the trial
court asked the defendant twice if he had anything he would like to
say to the trial court during the hearing and in both instances he declined.
4. The defendant’s claim that his sentence was illegally imposed because it
did not comply with the requirements of Practice Book § 43-29 was
unavailing, as the trial court did not abuse its discretion when it con-
cluded that the defendant confused notice for a violation hearing with
notice for a sentencing hearing and denied the motion to correct an
illegal sentence; although the defendant claimed that, as a probationer,
he should have been notified of a revocation of probation hearing, there
was no evidence in the record that would allow for an interpretation
of the plea agreement in which the defendant could violate the terms
of the agreement and still be continued on probation, and the defendant
admitted the violation of probation at the time he entered his Garvin
plea.
Argued October 9, 2019—officially released January 14, 2020
Procedural History
Information, in the first case, charging the defendant
with violation of probation, and information, in the sec-
ond case, charging the defendant with two counts of
the crime of possession of a controlled substance,
brought to the Superior Court in the judicial district of
Hartford, geographical area number fourteen, where
the defendant was presented to the court, Solomon, J.,
on an admission of violation of probation and on pleas
of guilty to possession of a controlled substance; there-
after, the court, Miano, J., rendered judgments in accor-
dance with the pleas and sentenced the defendant; sub-
sequently, the court, Hon. Edward J. Mullarkey, judge
trial referee, denied the defendant’s amended motion
to correct an illegal sentence, and the defendant
appealed to this court. Affirmed.
James E. Mortimer, assigned counsel, for the appel-
lant (defendant).
Matthew A. Weiner, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and Donna Mambrino, senior assistant state’s
attorney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, James Mitchell,
appeals from the judgment of the trial court denying
his motion to correct an illegal sentence. On appeal,
the defendant challenges the trial court’s denial of his
motion to correct on four grounds: (1) that the sentence
was imposed in an illegal manner in violation of Santo-
bello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495,
30 L. Ed. 2d 427 (1971), because the defendant was
sentenced after the nine month period of the Garvin
agreement had ended; (2) that the sentence was
imposed in an illegal manner because the defendant was
not given adequate notice of the sentencing hearing;
(3) that he was denied the opportunity to make a state-
ment or present evidence in violation of Practice Book
§ 43-10; and (4) that the imposition of the sentence
violated Practice Book § 43-29.1 We disagree and,
accordingly, affirm the judgment of the trial court.
The record reveals the following relevant facts and
procedural history. On November 14, 1997, the defen-
dant was sentenced to ten years imprisonment, execu-
tion suspended after four years, and five years of proba-
tion for the underlying crime of robbery in the first
degree with a firearm. The defendant’s probation began
on February 23, 2001. During this probation period, the
defendant was arrested, subsequently convicted on or
about October 25, 2001, for possession of a controlled
substance in violation of General Statutes (Rev. to 2001)
§ 21a-279 (c) and fined $250. The defendant was incar-
cerated for failure to pay the fine on March 8, 2002, and
later released. The defendant was arrested on March 7,
2002, for possession of narcotics and sale of a controlled
substance in violation of General Statutes (Rev. to 2001)
§ 21a-279 (a) and General Statutes (Rev. to 2001) § 21a-
277 (b). On April 19 and 30, 2002, the defendant tested
positive for the presence of cocaine in two separate
urine samples. On May 13, 2002, the defendant was
charged with violating his probation. Subsequently, on
or about May 25, 2002, the defendant was arrested for
possession of a controlled substance in violation of
General Statutes (Rev. to 2001) § 21a-279 (c) and sale of
a controlled substance in violation of General Statutes
(Rev. to 2001) § 21a-277 (b). The defendant was also
charged with possession of a controlled substance for
conduct occurring on or about October 17, 2002.
On June 18, 2003, after reaching a Garvin agreement
with the state,2 the defendant appeared before the court,
Solomon, J. At the hearing, the court explained its
understanding of the terms of the plea agreement: ‘‘Here
is the deal as I understand it. You are going to admit
[to the violation of probation]. You are going to get
random drug screenings. You get one positive and if
you fail to show up for a test because you don’t want
to know what the result is, that failure to show up in
my opinion is a positive . . . . You are going to be
working full time and you are not going to commit any
more crimes. If you do any of those things in the course
of the next nine months, I’m going to bring you back.
You are going to get at least the six years that you owe
on the violation of probation, and with respect to the
other charges, I can do whatever I want. I can run
concurrent and I can run consecutive . . . . You make
it for nine months, work full time, no crimes, no positive
urines, I will continue you on probation at that point
in time. Whether you go to jail is entirely in your hands.
There is not going to be a negotiation if you come back
and you failed. I’m not going to hear about [how] you
did pretty good or you did really well for six months.
As far as I’m concerned, if you fail, you failed, and you
get the six years.’’
After the defendant admitted to violating his proba-
tion and pleaded guilty to two counts of possession of
a controlled substance, the court canvassed the defen-
dant and repeated the terms of the plea agreement.
‘‘Even though we discussed it on the record, I am going
to go through it again with you. The deal, as I understand
it, is if you do everything I indicated I expect you to
do, no drugs, clean urines, show up for all tests, have
full-time regular employment and no more criminal con-
duct. In other words, don’t get arrested for anything.
If you do all those things, you are going to come back
in nine months and I’m going to continue you on proba-
tion. You will still be on probation, but you won’t have
to serve any jail time as a result of this violation. If you
don’t do the things that I have told you you have to do,
then what’s going to happen is I’m not going to wait
the nine months. I’m going to bring you back as soon
as I find out that there has been a positive urine, or as
soon as I find out that you’ve been arrested, or as soon
as I find out that you lose your job. I’m going to bring
you back and I am going to sentence you to a minimum
of six years, and as much as eight years.’’
Shortly after this hearing, on August 23, 2003, the
defendant was arrested on several felony charges. On
September 22, 2005, following a jury trial on these
charges, the defendant was convicted of attempt to
commit murder in violation of General Statutes §§ 53a-
54a, 53a-49 (a) and 53a-8; conspiracy to commit murder
in violation of General Statutes §§ 53a-48 (a) and 53a-
54a; kidnapping in the first degree in violation of Gen-
eral Statutes §§ 53a-92 (a) (2) (A) and 53a-8; conspiracy
to commit kidnapping in the first degree in violation of
§§ 53a-48 and 53a-92 (a) (2) (A); sexual assault in the
first degree in violation General Statutes §§ 53a-8 and
53a-70 (a) (1); conspiracy to commit sexual assault in
the first degree in violation of §§ 53a-48 and 53a-70 (a)
(1); assault in the first degree in violation of General
Statutes §§ 53a-59 (a) (5) and 53a-8; conspiracy to com-
mit assault in the first degree in violation of §§ 53a-48
(a) and 53a-59 (a) (5); and criminal possession of a
firearm in violation of General Statutes (Rev. to 2003)
§ 53a-217 (a) (1).
On October 12, 2005, the defendant was brought
before the court, Miano, J., to be sentenced on the
violation of probation charge and the two counts of
possession of a controlled substance pursuant to the
Garvin agreement. During the sentencing hearing, the
defendant communicated to the court as follows: ‘‘I was
just called out of the blue to come to court so I, as far
as what you’re telling me now, is the first thing I am
hearing what was going on.’’ Defense counsel then
requested a continuance of the hearing. The court met
with defense counsel and the prosecutor in chambers to
discuss the continuance request. Thereafter, the court
continued the case to that afternoon. When the parties
returned, defense counsel stated that the defendant
‘‘[was] prepared to be sentenced on these matters
today.’’ The court heard argument from the state and
defense counsel, and the defendant declined to speak.
The court found a Garvin violation, revoked the defen-
dant’s probation and sentenced the defendant to six
years of incarceration for violating his probation and
one year of incarceration for each of the possession of
a controlled substance charges to be served concur-
rently.
Pursuant to Practice Book § 43-22,3 the defendant
filed a motion to correct an illegal sentence on October
4, 2013, and an amended motion on January 7, 2014. In
the memorandum in support of this motion, the defen-
dant argued that the conditions imposed on him by the
Garvin agreement he entered into on June 18, 2003,
expired on March 12, 2004. The defendant also argued
that the sentence was imposed illegally because he did
not receive notice of the October 12, 2005 sentencing
date as required under Practice Book § 43-29.4
In opposition, the state contended that (1) the defen-
dant had been thoroughly canvassed and had agreed
with the conditions of the plea agreement, (2) he and
his attorney knew that sentencing was pending when
he was called before the court on October 12, 2005,
and (3) the notice procedures of Practice Book § 43-29
were not applicable.
On October 3, 2017, the court issued its written mem-
orandum of decision denying the defendant’s motion
to correct an illegal sentence. The court noted that
during the sentencing hearing, defense counsel told the
court that the defendant was ‘‘prepared to be sentenced
on these matters today.’’ The court further noted that
the defendant declined to speak when invited to and
was provided with his right to a sentence review.
Finally, the court concluded that ‘‘[t]he defendant’s
claim of lack of notice confuses notice of a violation
hearing with notice for a sentencing hearing, which was
waived by counsel after opportunities to speak with
the judge and her client.’’ This appeal followed.
We begin by setting forth the standard of review
that guides our analysis. ‘‘[A] claim that the trial court
improperly denied a defendant’s motion to correct an
illegal sentence is reviewed pursuant to the abuse of
discretion standard.’’ State v. Tabone, 279 Conn. 527,
534, 902 A.2d 1058 (2006). ‘‘In reviewing claims under
the abuse of discretion standard, we have stated that
the ultimate issue is whether the court could reasonably
conclude as it did.’’ (Internal quotation marks omitted.)
State v. Fairchild, 155 Conn. App. 196, 210, 108 A.3d
1162, cert. denied, 316 Conn. 902, 111 A.3d 470 (2015).
I
The defendant first claims that he was sentenced in
violation of the United States Supreme Court’s decision
in Santobello v. New York, supra, 404 U.S. 262, because
the sentencing occurred after the nine month period
discussed in the plea agreement. In other words, the
defendant argues that he was sentenced in violation of
the plea agreement because he was not sentenced on
or before March 12, 2004. We disagree.
The United States Supreme Court in Santobello held
that plea bargains ‘‘must be attended by safeguards to
insure the defendant what is reasonably due in the
circumstances. Those circumstances will vary, but a
constant factor is that when a plea rests in any signifi-
cant degree on a promise or agreement of the prosecu-
tor, so that it can be said to be part of the inducement
or consideration, such promise must be fulfilled.’’ Id.
On appeal, the defendant contends that ‘‘[o]ne such
explicit inducement in this matter was the promise that,
whether or not the defendant was compliant with the
conditions of his release, he was to be sentenced on
or before March 12, 2004.’’ We are not persuaded
because the agreement simply does not contain any
‘‘such explicit inducement’’ that the defendant was to
be sentenced on or before March 12, 2004, regardless of
whether he was compliant with the terms of his release.
‘‘The validity of plea bargains depends on contract
principles.’’ State v. Garvin, 242 Conn. 296, 314, 699
A.2d 921 (1997). Thus, because ‘‘a plea agreement is
akin to a contract . . . well established principles of
contract law can provide guidance in the interpretation
of a plea agreement.’’ State v. Lopez, 77 Conn. App. 67,
77, 822 A.2d 948 (2003), aff’d, 269 Conn. 799, 850 A.2d
143 (2004). Because, however, plea agreements ‘‘impli-
cate the waiver of fundamental rights guaranteed to
persons charged with crimes, [they] must . . . be eval-
uated with reference to the requirements of due pro-
cess.’’ (Internal quotation marks omitted.) State v. Riv-
ers, 283 Conn. 713, 724, 931 A.2d 185 (2007). Therefore,
‘‘[p]rinciples of contract law and special due process
concerns for fairness govern our interpretation of plea
agreements.’’ (Internal quotation marks omitted.) State
v. Stevens, 278 Conn. 1, 7–8, 895 A.2d 771 (2006).
The plea agreement articulated by the court provided
that the defendant was required to remain employed,
drug free and free of criminal violations for a period
of nine months, or until March 12, 2004. If the defendant
were able to comply with these terms for the entire
nine month period, he would be eligible to continue his
probation. There is no indication that the terms of the
plea agreement included a requirement that the defen-
dant be sentenced within the nine month period. During
the plea canvass, the court recited the terms of the
plea agreement twice to the defendant. Neither of those
recitations included language requiring sentencing to
take place within the nine month period. Therefore,
this claim fails.5
II
The defendant also argues that his sentence was
imposed illegally because he did not receive notice of
the October 12, 2005 hearing. The state counters that
the defendant waived any challenge to notice during
the sentencing hearing. We agree with the state.
Our Supreme Court has clarified that ‘‘waiver is the
intentional relinquishment or abandonment of a known
right. . . . It is well settled that a criminal defendant
may waive rights guaranteed to him under the constitu-
tion. [State v. Fabricatore, 281 Conn. 469, 478, 915 A.2d
872 (2007)]. The mechanism by which a right may be
waived, however, varies according to the right at stake.
. . . For certain fundamental rights, the defendant
must personally make an informed waiver. . . . For
other rights, however, waiver may be effected by action
of counsel. . . . When a party consents to or expresses
satisfaction with an issue at trial, claims arising from
that issue are deemed waived and may not be reviewed
on appeal. See, e.g., State v. Holness, 289 Conn. 535,
544–45, 958 A.2d 754 (2008) (holding that defendant
waived [his claim] . . . when counsel agreed to lim-
iting instruction regarding hearsay statements intro-
duced by state on cross-examination); State v. Fabrica-
tore, supra, [481] (concluding defendant waived claim
when he not only failed to object to jury instruction
but also expressed satisfaction with it and argued that
it was proper).’’ (Citations omitted; internal quotation
marks omitted.) Mozell v. Commissioner of Correction,
291 Conn. 62, 71–72, 967 A.2d 41 (2009). ‘‘[A]lthough
there are basic rights that the attorney cannot waive
without the fully informed and publicly acknowledged
consent of the client, the lawyer has—and must have—
full authority to manage the conduct of the trial. . . .
As to many decisions pertaining to the conduct of the
trial, the defendant is deemed bound by the acts of his
lawyer-agent and is considered to have notice of all
facts . . . .’’ (Internal quotation marks omitted.) State
v. Kitchens, 299 Conn. 447, 467–68, 10 A.3d 942 (2011).
During the sentencing hearing before the court,
Miano, J., the defendant first expressed surprise at
the purpose of the hearing and counsel requested a
continuance. Defense counsel and the prosecutor met
with the judge in chambers and following this, the mat-
ter was continued to that afternoon. When the parties
returned, defense counsel told the court that the defen-
dant ‘‘[was] prepared to be sentenced on these matters
today.’’ The court later asked the defendant if he wanted
to speak before the hearing was concluded, but he
declined to do so.
The court, Hon. Edward J. Mullarkey, judge trial
referee, in its memorandum of decision denying the
defendant’s motion to correct an illegal sentence, noted
how defense counsel expressed to the court that the
defendant was prepared to be sentenced. The court
also noted how the defendant declined to speak at
the hearing.
On appeal, the defendant argues with no support
that ‘‘[t]here is absolutely no evidence in the record to
suggest that the defendant intentional[ly] relinquished
or abandoned his right to notice of sentencing, merely
that the defendant conversed with counsel.’’ This con-
clusory argument is belied by the record. It is clear that
the defendant’s counsel expressed to the court that the
defendant was ‘‘prepared to be sentenced . . . .’’
Defense counsel’s statement did not implicate a basic
right, such as the right to a jury trial, which would have
required his ‘‘fully informed and publicly acknowledged
consent . . . .’’ (Emphasis omitted; internal quotation
marks omitted.) State v. Gore, 288 Conn. 770, 782, 955
A.2d 1 (2008). Further, the defendant expressed no
opposition to defense counsel’s statement at the hear-
ing. Accordingly, this claim fails.
III
Next, the defendant argues that he was illegally sen-
tenced because he was not provided with the opportu-
nity to be heard or to present evidence at the sentencing
hearing in violation of Practice Book § 43-10.6 The state
argues that the defendant was given the opportunity to
do so but declined. We agree with the state.
At the start of the hearing, defense counsel expressed
concern that the defendant would be unable to have
family with him because he did not have notice of the
hearing. As discussed previously in this opinion, how-
ever, after the hearing was continued to that afternoon,
defense counsel told the court that the defendant was
ready to proceed. Neither defense counsel nor the
defendant protested to the court that the defendant was
being denied the opportunity to be heard or present
evidence. Further, the court asked the defendant twice
if he had anything he would like to say to the court
during the hearing.7 In both instances, the defendant
declined. Accordingly, upon review of the record, we
conclude that the court did not abuse its discretion in
denying the motion on this ground.
IV
The defendant’s final argument is that the sentence
was illegally imposed because it did not comply with
the requirements of Practice Book § 43-29. The state
argues that the procedure of § 43-29 is not applicable
to the sentencing hearing of October 12, 2005. We agree
with the state.
Practice Book § 43-29 sets forth the procedure for a
revocation of probation hearing when the revocation
is based on a new criminal offense. The defendant
argues that because he was not sentenced by March
12, 2004, he was continued ‘‘sub silencio’’ on probation
thereafter. Accordingly, he argues, as a probationer, the
defendant should have been notified of a revocation of
probation hearing pursuant to § 43-29. This claim is
without merit.
As discussed previously in this opinion, there is noth-
ing in the record that indicates that the plea agreement
required that the defendant be sentenced before March
12, 2004. Thus, there is no support for the defendant’s
claim that because he was not sentenced before March
12, 2004, he was automatically continued on probation.
This reading of the plea agreement is contrary to the
purpose of the Garvin agreement and is wholly contra-
dicted by the record. During the plea canvass on June
18, 2003, the defendant agreed that if, and only if, he
did not commit any criminal violations, and remained
employed and drug free for nine months, would he be
continued on probation. As discussed previously, there
is no evidence in the record that would allow for an
interpretation of the agreement in which the defendant
could violate the terms of the agreement and still be
continued on probation. Further, the defendant admit-
ted the violation of probation at the time he entered
his Garvin plea. The court did not abuse its discretion
when it concluded that the defendant ‘‘confuse[d]
notice for a violation hearing with notice for a sentenc-
ing hearing’’ and denied the motion to correct an illegal
sentence. Accordingly, this claims fails.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although Practice Book § 43-29 was amended in 2017, those amendments
have no bearing on the merits of this appeal. In the interest of simplicity,
we refer to the current version of that rule.
2
‘‘A Garvin agreement is a conditional plea agreement that has two possi-
ble binding outcomes, one that results from the defendant’s compliance
with the conditions of the plea agreement and one that is triggered by his
violation of a condition of the agreement.’’ State v. Stevens, 278 Conn. 1, 7,
895 A.2d 771 (2006).
3
Practice Book § 43-22 provides: ‘‘The judicial authority may at any time
correct an illegal sentence or other illegal disposition, or it may correct a
sentence imposed in an illegal manner or any other disposition made in an
illegal manner.’’
4
Practice Book § 43-29 provides in relevant part: ‘‘In cases where the
revocation of probation is based upon a conviction for a new offense and
the defendant is before the court or is being held in custody pursuant to
that conviction, the revocation proceeding may be initiated by a motion to
the court by a probation officer and a copy thereof shall be delivered
personally to the defendant. All other proceedings for revocation of proba-
tion shall be initiated by an arrest warrant supported by an affidavit or by
testimony under oath showing probable cause to believe that the defendant
has violated any of the conditions of the defendant’s probation or his or
her conditional discharge or by a written notice to appear to answer to the
charge of such violation, which notice, signed by a judge of the Superior
Court, shall be personally served upon the defendant by a probation officer
and contain a statement of the alleged violation. . . .’’
5
The defendant’s additional argument that the state ‘‘waived’’ its right to
have him sentenced because he was not sentenced within the nine month
period also fails. Because there was no requirement in the plea agreement
that the court sentence the defendant on or before March 12, 2004, there
was no requirement for the state to waive.
6
Practice Book § 43-10 provides in relevant part: ‘‘Before imposing a
sentence or making any other disposition after the acceptance of a plea of
guilty or nolo contendere or upon a verdict or finding of guilty, the judicial
authority shall, upon the date previously determined for sentencing, conduct
a sentencing hearing as follows: (1) The judicial authority shall afford the
parties an opportunity to be heard and, in its discretion, to present evidence
on any matter relevant to the disposition . . . . (2) The judicial authority
shall allow the victim and any other person directly harmed by the commis-
sion of the crime a reasonable opportunity to make, orally or in writing, a
statement with regard to the sentence to be imposed. . . . ’’
7
Our Supreme Court determined that a right of allocution exists during
the disposition phase of a violation of probation proceeding. State v. Strick-
land, 243 Conn. 339, 354, 703 A.2d 109 (1997). Thus, the court properly
provided the defendant with the opportunity to address the court. The
defendant, however, declined to exercise that right.