State v. Kallberg

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STATE OF CONNECTICUT v. CRAIG KALLBERG
(SC 19536)
Rogers, C. J., and Palmer, McDonald, Espinosa and Robinson, Js.
Argued January 23—officially released June 13, 2017
Margaret Gaffney Radionovas, senior assistant
state’s attorney, with whom, on the brief, were Brian
Preleski, state’s attorney, and Kevin Murphy, former
supervisory assistant state’s attorney, for the appel-
lant (state).
Alice Osedach, senior assistant public defender, for
the appellee (defendant).
Opinion
McDONALD, J. The defendant, Craig Kallberg, was
convicted of larceny in the third degree as an accessory
in violation of General Statutes §§ 53a-8 and 53a-124
(a) (2) and conspiracy to commit larceny in the third
degree in violation of General Statutes §§ 53a-48 and
53a-124 (a) (2) after he unsuccessfully moved to dismiss
those charges on the basis of the state’s prior entry of
a nolle prosequi on the same charges. The issue in
this certified appeal1 is whether the Appellate Court
properly reversed the judgment of conviction on the
ground that the entry of a nolle on those charges and
nolles on charges in three other cases was part of an
agreement between the state and the defendant, con-
templating a global disposition supported by consider-
ation, which barred his prosecution in the present
proceeding. The state contends that the Appellate Court
improperly concluded that the trial court’s finding that
the parties intended to enter into an agreement relating
to only one of the cases was clearly erroneous, or to
the extent that the agreement was ambiguous, it should
have been construed in the defendant’s favor. State v.
Kallberg, 157 Conn. App. 720, 729–30, 118 A.3d 84
(2015). We conclude that the agreement was ambiguous
as to the parties’ intent, and therefore must be con-
strued in the defendant’s favor as a global disposition.
Accordingly, we affirm the Appellate Court’s judgment.
The record reveals the following undisputed facts.
Michael Higgins, an acquaintance of the defendant, con-
fessed to the police that he and the defendant had
pawned several items, including a set of golf clubs. A
resident of the same apartment building where Higgins
lived had reported to the police that various items had
been stolen from his basement storage locker; many of
those items were the same items that Higgins admitted
to having pawned. In August, 2010, the defendant was
arrested and charged with burglary in the third degree,
larceny in the third degree, and conspiracy to commit
both of those offenses under docket number CR-10-
0046439-T (burglary/larceny case).
By September, 2011, the defendant had three other
cases pending against him from arrests prior to 2011,
each under separate docket numbers, including one
charging him with possession of narcotics (drug case).2
In September, 2011, the state entered a nolle prosequi in
each of the defendant’s four pending cases at a hearing
before Judge Kahn, who had been assigned to serve as
the trial judge.3 Approximately one year later, the state
initiated the present prosecution, charging the defen-
dant with larceny in the third degree as an accessory
and conspiracy to commit larceny in the third degree
for his role in the storage locker thefts.
The defendant filed a motion to dismiss the charges,
claiming that they had been permanently disposed of
as part of an agreement (nolle agreement) that was
memorialized on the record in the hearing before Judge
Kahn. The defendant asserted that Judge Strackbein
had assisted the parties in negotiating a plea agreement
that was a global disposition of the four pending cases,
under which he would plead guilty to possession of
drug paraphernalia in the drug case and pay a fine of
$300, in exchange for which the state would enter nolles
in the other three cases, including the burglary/larceny
case. The defendant further asserted that due to Judge
Strackbein’s subsequent unavailability to accept the
plea, the parties had effectuated a comparable global
disposition whereby the defendant made a donation of
$271 to the Connecticut Criminal Injuries Compensa-
tion Fund (victim’s fund) in exchange for nolles on all
of his cases. The state opposed the motion, contending
that the donation was consideration for the nolle in the
drug case only.
The sole evidence offered in connection with the
motion to dismiss was the transcript of the hearing
before Judge Kahn, which provided in relevant part
as follows:
‘‘[Judge Kahn]: Good afternoon . . . . They’re four
matters correct?
* * *
‘‘[The Prosecutor]: MV-10-228488 . . . CR-10-46914
and then CR-10-47442 and lastly CR-10-46439. These
matters are all on the trial list and over a course of
time—some of these are a year old, going on a year
and a half old, [defense counsel] and I we were able
to have recent discussions.
‘‘I’ll start with the file ending in 488, no insurance,
traveling unreasonably fast. What we do in those cases
is make sure that the insurance is gotten, if in fact he’s
driving an automobile, and the license is still valid or
is valid. [The defendant] says that . . . he was
operating with a valid motor vehicle license. The state
is entering a nolle on that.
‘‘[Judge Kahn]: Nolle is noted.
‘‘[The Prosecutor]: Breach of [the] peace [in the sec-
ond degree], which is the file ending in 442, we reached
out to the complainant in that matter. . . . [W]e spoke
to his attorney . . . [who] indicated and represented
to us that . . . he does not want to pursue. In a normal
day what we do is probably sub this . . . but we’re
entering a nolle in that matter based on the victim’s
wishes.
‘‘[Judge Kahn]: Nolle noted.
‘‘[The Prosecutor]: I’ll leave the file ending with 914
to the end. The other file it looks fairly complicated
and serious ends in 439. It’s a bunch of burglaries; it’s
a larceny, at least the allegations. We have a couple of
problems in that matter. One is the burglaries occurred
to storage sheds. It doesn’t mean they weren’t bur-
glaries, but the storage sheds had no tops on them. And
it’s arguable whether we could ever prove the breaking
and entering or the illegal entry when in fact [the defen-
dant] was alleged and admitted to peeking into the top.
Many of those that he peeked into were empty. So what
we really have in this case when it’s all boiled down is
a larceny in the [fourth] degree by possession. [The
defendant] really gave up possession to the police of
those possessions that he had possession of, isn’t that
true, [defense counsel]?
‘‘[Defense Counsel]: That’s true.
‘‘[The Prosecutor]: So nobody here is out anything
in this particular file. The state’s entering a nolle in
that file.
‘‘[Judge Kahn]: Nolle noted.
‘‘[The Prosecutor]: Now that leaves us with the drug
case . . . . [W]e have various dosages of hydrocodone
which is a narcotic or oxycodone a narcotic. But we
have [the defendant] who over the course of time maybe
not commensurate exactly with the day in question
here, he has had prescriptions in the past and they have
been provided to me—a copy of the bottles have been
provided to me: I took some issue with [defense coun-
sel] in that the prescription was say six or seven months
old. But suffice it to say, this is still a simple possession
of narcotics—a little shot glass of crushed up narcotics
and another person in the car who’s already copped to
some of these. . . .
‘‘So what we had here was a proposed disposition
to get rid of all of these files with a plea of drug para-
phernalia and a fine of $300. That didn’t work out
today because we were unable to actually tap into
Judge Strackbein. So I took the bull by the horns and
asked [the defendant] to make a donation of $271 to
the victim’s fund.4 Do we have a copy of that receipt
in the file, madam clerk?
‘‘The Clerk: Yes, we do. . . .
‘‘[The Prosecutor]: . . . In light of that, what we do
each and every day over in [another geographical area]
is to nolle this case, as well. So, now [the defendant’s]
matters are all resolved . . . .
‘‘[Judge Kahn]: All right, I’ll note the nolle on that. I
do have something I’d like to put on the record. First,
I want to put on the record that I would have been the
trial judge. I know that these matters had been, at least
one of them if not more, on the trial list. And so [the
prosecutor]—and by the way I do know his nature is
not to enter nolles lightly and so it’s not his practice
to nolle cases unless there’s good reason, so I’m going
to take him at his word that he couldn’t prove the case.
He did mention to me there were some issues about
some codefendants that may be deceased, as well, in
chambers.
‘‘[The Prosecutor]: Actually I should say that in the
burglary/larceny case the codefendant in this matter is
dead. The victim can’t be found. That case as it stands
today is unprovable.
‘‘[Judge Kahn]: Okay, so I want to be able to note
that [the prosecutor] was very careful not to mention
what the offer was, but he came up to chambers. He
told me that you were here [defense counsel], your
client was here. That you had worked out a deal. That
he had asked Judge Strackbein, I guess, to put this on.’’
(Emphasis added; footnote added.)
Judge Kahn explained that Judge Strackbein was
unavailable due to a scheduling conflict but that Judge
Strackbein had ‘‘assured me that all the matters had
been resolved. . . . I was hesitant to engage in the plea
negotiations because I was going to be the trial judge,
so I couldn’t do that. But [the prosecutor] did tell me
that he had some issues. He would nolle some matters
because he had an inability to get certain witnesses,
but he didn’t share with me the substance of it. . . .
‘‘So if Judge Strackbein were here, irrespective of
which judge is present, we cannot if the state wishes
to enter a nolle, there’s nothing the court can do. The
state can enter a nolle. It’s within the prosecutorial
discretion. All the . . . court can do is ask the state to
put their reasons on the record. But they can nolle cases
whenever they want, and all the court can do is ask
the reasons. . . . You’ve put them on the record, and
so I’m not quarreling with that at all.’’
Judge Kahn then addressed the defendant about his
potential substance abuse issues, and warned him that
the state would not hesitate to pursue charges against
him even if he had a valid prescription, if he abused
his medication. Judge Kahn concluded her admon-
ishment by stating: ‘‘Hopefully we won’t see you again,
and I will note the nolles for the reasons stated on the
record.’’5 Finally, pursuant to the prosecutor’s request
at the end of the hearing, Judge Kahn ordered that
the stolen property still remaining in police custody be
returned to its rightful owner.
At the hearing on the motion to dismiss, although
the parties contested the meaning of the preceding
exchange as to the parties’ intent in making the nolle
agreement, because neither the defendant nor the state
was represented by the counsel from the nolle hearing,
they offered no personal knowledge regarding the facts
and circumstances surrounding the execution of the
agreement. After hearing argument from the parties,
the trial court denied the motion to dismiss in an oral
decision. The trial court acknowledged that the original
plea agreement worked out with Judge Strackbein was
a ‘‘global deal,’’ but ascribed no significance to that fact
because that deal was never effectuated. As to the nolle
agreement that was effectuated, the trial court con-
cluded that the transcript did not support the defen-
dant’s claim that this agreement was a global disposition
of all of the defendant’s cases in exchange for the dona-
tion to the victim’s fund. Rather, the trial court found
it clear from the transcript that the donation had been
made to obtain a nolle on the drug case alone. The
court ascribed particular significance to the fact that
the state had provided reasons for entering nolles on
the other cases and to the absence of any statement
by the prosecutor that all four cases were nolled in
exchange for the donation to the victim’s fund.
Following a jury trial, the defendant was convicted
of both larceny charges. The court rendered judgment
in accordance with the verdict and sentenced the defen-
dant to a total effective sentence of four years of incar-
ceration, suspended after two years, followed by three
years of probation.
The defendant appealed to the Appellate Court,
claiming, among other things, that the trial court
improperly had denied his motion to dismiss. State v.
Kallberg, supra, 157 Conn. App. 720, 722. The Appellate
Court agreed. Id., 730. The court prefaced its analysis
with this statement: ‘‘Whether we view the [nolle]
agreement as a purely factual matter of the parties’
intent, or whether we view the agreement as ambiguous
and therefore to be construed in the defendant’s favor,
we arrive at the same conclusion.’’ Id., 727. As to the
first view, the Appellate Court held that a factual finding
that the parties intended to enter into an agreement for
a nolle on the drug case only was clearly erroneous, as
the court was left with a firm and definite conviction
that a mistake had been made. See id., 727–29. The
court explained: ‘‘The conduct of the parties reveals to
us that the defendant was offered a plea agreement,
which was to be accepted, but that the unavailability
of the judge before whom the plea agreement was to be
entered caused the prosecutor to adopt an alternative
means of disposing of the cases in a substantially similar
fashion in exchange for substantially similar consider-
ation by the defendant. The statements of the prosecu-
tor reflect the intended result: an equivalent substitute
for the original plea agreement.’’ Id., 729–30. As to the
second possible view of the record, the Appellate Court
concluded that to the extent that the nolle agreement
was ambiguous as to whether it contemplated a global
disposition, it must be construed in favor of the defen-
dant. See id., 727, 730. Accordingly, the Appellate Court
reversed the judgment of conviction and remanded the
case to the trial court with direction to vacate the con-
viction and to dismiss the charges. Id., 730. The state’s
certified appeal to this court followed.
On appeal, the state concedes that the original plea
agreement was a global disposition. It contends, how-
ever, that the trial court properly determined that the
original plea agreement had no bearing on the construc-
tion of the nolle agreement effectuated. The state con-
tends that the Appellate Court engaged in impermissible
fact-finding by reading the transcript to reflect an intent
to substitute the original global plea agreement with a
substantially similar agreement whereby all four cases
were nolled in exchange for the donation. The state
further contends that the Appellate Court improperly
concluded that the trial court’s factual finding as to the
parties’ intent was clearly erroneous, arguing that the
transcript of the hearing before Judge Kahn reflects a
clear intent by the state to (a) unilaterally nolle the
three cases other than the drug case for the reasons
stated on the record, and (b) effectuate an agreement
in the drug case whereby the state would enter a nolle
in exchange for the defendant’s donation to the victim’s
fund. We agree with the Appellate Court that the nolle
agreement was ambiguous and should be construed
against the state.
‘‘Because a motion to dismiss effectively challenges
the jurisdiction of the court, asserting that the state, as
a matter of law and fact, cannot state a proper cause
of action against the defendant, our review of the court’s
legal conclusions and resulting denial of the defendant’s
motion to dismiss is de novo. . . . Factual findings
underlying the court’s decision, however, will not be
disturbed unless they are clearly erroneous.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Samuel M., 323 Conn. 785, 794–95, 151 A.3d 815 (2016).
For the reasons that follow, we conclude that de novo
review governs our resolution of the present case.
We begin by distinguishing a prosecutor’s unilateral
entry of a nolle from a bilateral agreement involving
entry of a nolle. Practice Book § 39-29 provides that
‘‘[a] prosecuting authority shall have the power to enter
a nolle prosequi in a case. It shall be entered upon
the record after a brief statement by the prosecuting
authority in open court of the reasons therefor.’’ We
have recognized that ‘‘a nolle is, except when limited
by statute or rule of practice6 . . . a unilateral act by
a prosecutor, which ends the pending proceedings with-
out an acquittal and without placing the defendant in
jeopardy.’’ (Citations omitted; footnote added; internal
quotation marks omitted.) Cislo v. Shelton, 240 Conn.
590, 599 n.9, 692 A.2d 1255 (1997). ‘‘Although the entry
of a nolle prosequi results in the defendant’s release
from custody, he can . . . be tried again upon a new
information and a new arrest.’’ (Citation omitted.) State
v. Lloyd, 185 Conn. 199, 201, 440 A.2d 867 (1981); accord
Practice Book § 39-31.
A nolle may, however, be bargained for as part of a
plea agreement; see State v. Daly, 111 Conn. App. 397,
400 n.2, 960 A.2d 1040 (2008), cert. denied, 292 Conn.
909, 973 A.2d 108 (2009); Practice Book § 39-5 (2); see
also Mason v. State, 302 Md. 434, 440, 488 A.2d 955
(1985) (nolle as part of plea agreement tantamount to
dismissal of nolled charge); or as part of an agreement
whereby the defendant provides something else of ben-
efit to the state or the victim in exchange for entry of
a nolle. See, e.g., People v. Reagan, 395 Mich. 306, 317–
18, 235 N.W.2d 581 (1975) (enforcing agreement in
which prosecution would enter nolle if defendant
passed polygraph examination); see also Holman v.
Cascio, 390 F. Supp. 2d 120, 123–24 (D. Conn. 2005)
(‘‘a nolle will preclude a subsequent case for malicious
prosecution [due to lack of a favorable termination of
the prior criminal case] when it was made as part of a
plea bargain or under other circumstances that indicate
that the defendant received the nolle in exchange for
providing something of benefit to the state or victim’’).7
Bilateral agreements in which the defendant provides
a benefit to the state or the victim other than a guilty
plea to a charge are typically treated as the functional
equivalent to a plea agreement, in that subsequent pros-
ecution is barred as long as the defendant has per-
formed his obligation. See People v. Reagan, supra, 309
(nolle agreement was ‘‘a pledge of public faith which
became binding when the [n]olle prosequi order was
approved by the trial judge’’); see also Bowers v. State,
500 N.E.2d 203, 204 (Ind. 1986) (enforcing agreement
not to prosecute in exchange for defendant’s provision
of information sufficient to obtain search warrant);
State v. Franklin, 147 So. 3d 231, 238 (La. App. 2014)
(enforcing agreement not to prosecute conditioned on
defendant’s successful completion of pretrial diversion
program), cert. denied, 159 So. 3d 460 (La. 2015); Jack-
son v. State, 358 Md. 259, 262, 277–78, 747 A.2d 1199
(2000) (enforcing agreement in which defendant waived
speedy trial rights in exchange for state’s promise to
dismiss charges if DNA analysis of certain evidence
came back negative).
The question in the present case, therefore, is
whether the defendant’s donation was made in
exchange for all four nolles (and thus constituted a
global nolle agreement) or only for the nolle in the drug
case. If the latter, there would be no bar to prosecution
on the present charges.
In resolving this question, we apply principles that
also govern the interpretation of plea agreements. It is
well settled that ‘‘[p]rinciples of contract law and spe-
cial due process concerns for fairness govern our inter-
pretation of plea agreements.’’ (Internal quotation
marks omitted.) State v. Rivers, 283 Conn. 713, 724, 931
A.2d 185 (2007); see also State v. Lopez, 77 Conn. App.
67, 77, 822 A.2d 948 (2003) (‘‘a plea agreement is akin
to a contract and . . . well established principles of
contract law can provide guidance in the interpretation
of a plea agreement’’), aff’d, 269 Conn. 799, 850 A.2d
143 (2004); State v. Franklin, supra, 147 So. 3d 241
(drawing analogy to principles of commercial contracts
in interpreting agreement not to prosecute conditioned
on defendant’s successful completion of pretrial diver-
sion program).
As has previously been explained in the context of
plea agreements, ‘‘[t]he primary goal of contract inter-
pretation is to effectuate the intent of the parties . . . .’’
(Internal quotation marks omitted.) State v. Rosado, 92
Conn. App. 823, 827, 887 A.2d 917 (2006). In ascertaining
that intent, we employ an objective standard and look
to what the parties reasonably understood to be the
terms of the plea agreement on the basis of their words
and conduct, and in light of the circumstances sur-
rounding the making of the agreement and the purposes
they sought to accomplish. See United States v. Alexan-
der, 736 F. Supp. 1236, 1239 (N.D.N.Y. 1989), aff’d, 901
F.2d 272 (2d Cir. 1990); accord Paradiso v. United
States, 689 F.2d 28, 31 (2d Cir. 1982), cert. denied, 459
U.S. 1116, 103 S. Ct. 752, 74 L. Ed. 2d 970 (1983); State
v. Nelson, 23 Conn. App. 215, 219–20, 579 A.2d 1104,
cert. denied, 216 Conn. 826, 582 A.2d 205 (1990), cert.
denied, 499 U.S. 922, 111 S. Ct. 1315, 113 L. Ed. 2d 248
(1991). An unambiguous agreement is presumptively an
accurate reflection of the parties’ intent. Thus, ‘‘[when]
the language is unambiguous, we must give the contract
effect according to its terms.’’ (Internal quotation marks
omitted.) State v. Rivers, supra, 283 Conn. 725.
‘‘[When] the language is ambiguous, however, we
must construe those ambiguities against the drafter
[namely, the state].’’8 (Internal quotation marks omit-
ted.) Id.; accord State v. Nelson, supra, 23 Conn. App.
219. The reason for this rule of construction, applied
by a majority of the federal Circuit Courts of Appeal;
State v. Rivers, supra, 283 Conn. 726; is that the state
‘‘generally holds substantially superior bargaining
power over the other party to the agreement, the crimi-
nal defendant.’’ Id., 725; see, e.g., United States v. Pal-
ladino, 347 F.3d 29, 33 (2d Cir. 2003) (‘‘[b]ecause the
government ordinarily has certain awesome advantages
in bargaining power, any ambiguities in the agreement
must be resolved in favor of the defendant’’ [internal
quotation marks omitted]). These same principles apply
to oral plea agreements. See State v. Obas, 320 Conn.
426, 442–43, 130 A.3d 252 (2016); State v. Rosado, supra,
92 Conn. App. 827–28.
It is well settled that the threshold determination as
to whether a plea agreement is ambiguous as to the
parties’ intent is a question of law subject to plenary
review. See, e.g., State v. Rivers, supra, 283 Conn. 725.
If the reviewing court deems the agreement ambiguous
and extrinsic evidence has been offered to dispel that
ambiguity, such as testimony regarding the facts sur-
rounding the making of the agreement, then intent is a
question of fact for the trial court, reversible only if
clearly erroneous. See, e.g., Orcutt v. Commissioner of
Correction, 284 Conn. 724, 741–43, 937 A.2d 656 (2007);
Martinez v. Commissioner of Correction, 105 Conn.
App. 65, 73, 936 A.2d 665 (2007), cert. denied, 285 Conn.
917, 943 A.2d 475 (2008). If, however, the agreement is
ambiguous and no extrinsic evidence has been offered,
resolution of the dispute as to the parties’ intent neces-
sarily hinges on what inferences can be drawn solely
from the four corners of the agreement. Under such
circumstances, the intention of the parties presents a
question of law over which we exercise plenary review.
See State v. Rivers, supra, 723–24, 725 n.11 (noting that
court would apply de novo review and that no extrinsic
evidence was offered regarding formation of contract);
see also Bristol v. Ocean State Job Lot Stores of Con-
necticut, Inc., 284 Conn. 1, 7–8, 931 A.2d 837 (2007)
(‘‘In the present case, even though there is a purported
ambiguity in the lease agreement, no extrinsic evidence
was offered at trial to establish the intent of the parties.
Therefore, the trial court’s determination of the parties’
intent was based solely on the language of the lease
agreement and did not involve the resolution of any
evidentiary issues of credibility. Accordingly, our
review of the trial court’s interpretation of the lease
agreement involves a question of law over which our
review is plenary.’’); Gateway Co. v. DiNoia, 232 Conn.
223, 230, 654 A.2d 342 (1995) (‘‘because the trial court
relied solely upon the written agreements in ascertain-
ing the intent of the parties, the legal inferences prop-
erly to be drawn from the documents are questions
of law, rather than fact’’). In the absence of extrinsic
evidence, determining the intent of the parties does
not require resolution of disputed facts or credibility
assessments.9 See State v. Lewis, 273 Conn. 509, 516–17,
871 A.2d 986 (2005) (‘‘[a]lthough we generally review
a trial court’s factual findings under the ‘clearly errone-
ous’ standard, when a trial court makes a decision based
on pleadings and other documents, rather than on the
live testimony of witnesses, we review its conclusions
as questions of law’’); Morton Buildings, Inc. v. Ban-
non, 222 Conn. 49, 53–54, 607 A.2d 424 (1992) (‘‘In this
case, the trial court’s determinations were based on a
record that consisted solely of a stipulation of facts,
written briefs, and oral arguments by counsel. The trial
court had no occasion to evaluate the credibility of
witnesses or to assess the intent of the parties in light of
additional evidence first presented at trial. The record
before the trial court was, therefore, identical with the
record before this court. In these circumstances, the
legal inferences properly to be drawn from the parties’
definitive stipulation of facts raises questions of law
rather than of fact.’’).
In the present case, the sole evidence before the
trial court in ruling on the motion to dismiss was the
transcript memorializing the nolle agreement. Accord-
ingly, we exercise plenary review in ascertaining the
parties’ intent.
Having articulated the proper standard of review and
relevant guiding principles, we turn to the statements of
counsel contained in the transcript to ascertain whether
they reflect a clear intent consistent with the state’s
interpretation. We begin with the prosecutor’s state-
ments relating to the nolles. As we previously noted,
the prosecutor addressed each of the four cases in turn,
articulating separate reasons for entering each nolle.
The prosecutor then entered a nolle in each case, which
Judge Kahn accepted. The prosecutor first discussed
the motor vehicle case, followed by the breach of the
peace case, the burglary/larceny case, and finally the
drug case. After providing reasons for entering a nolle
on the drug case, but before entering the nolle, the
prosecutor made the following critical statement: ‘‘So
what we had here was a proposed disposition to get
rid of all of these files with a plea of drug paraphernalia
and a fine of $300. That didn’t work out today because
we were unable to actually tap into Judge Strackbein.
So I took the bull by the horns and asked [the defendant]
to make a donation of $271 to the victim’s fund. . . .
In light of that, what we do each and every day over
in [another geographical area] is to nolle this case, as
well. So, now [the defendant’s] matters are all
resolved . . . .’’
The meaning or scope of an agreement may be
deemed ambiguous if it is susceptible to more than one
reasonable interpretation. See State v. Obas, supra, 320
Conn. 444; State v. Rosado, supra, 92 Conn. App. 829.
We conclude that the prosecutor’s statements are sus-
ceptible to interpretations that support both parties’
positions.
On the one hand, there is support for the state’s
interpretation. The prosecutor commenced his discus-
sion of the drug case after entering nolles in the other
three cases, each supported by independent reasons.
The prosecutor discussed the defendant’s donation to
the victim’s fund only in the course of addressing that
case, indicating that, ‘‘[i]in light of that [donation],’’
he would ‘‘nolle this case, as well.’’ The fact that the
prosecutor’s ‘‘took the bull by the horns’’ comment was
made before he entered the nolle in the drug case lends
support to the state’s position, such that it could simply
mean that, when Judge Strackbein became unavailable
to accept the original plea agreement, the prosecutor
decided to exercise his discretion to enter unilateral
nolles on three cases and effectuate an agreement only
on the drug case.
On the other hand, there is ample evidence in the
transcript supporting the defendant’s view. The prose-
cutor made no remark at the outset of the hearing to
indicate that one of the four cases was being treated
differently, nor did he preface the discussion of the
drug case with any such comment. There were several
indications, however, of like treatment of the four cases.
The prosecutor entered identical dispositions in every
case—a nolle. The prosecutor articulated reasons in
support of the nolles in every case, including the drug
case. The reasons stated for the nolle in the drug case—
problems in proof and lack of interest in pressing the
matters given the circumstances attendant to the case—
did not suggest a basis for differential treatment as they
were not materially different from those offered in the
other cases.
We also observe that, although the discussion of the
defendant’s donation to the victim’s fund was tempo-
rally connected to the drug case, that consideration
bore no logical connection to the drug case. The reasons
for entering the nolle on the drug case were wholly
unrelated to victim compensation. Indeed, a donation
to the victim’s fund bore a logical connection to the
breach of the peace case and the burglary/larceny case,
each of which involved identifiable victims, whereas
there was no identifiable victim in the drug case other
than arguably the defendant himself. The donation
could have been reasonably understood as a logical
alternative to restitution in those cases because the
victim of the breach of the peace case was incarcerated
and the victim of the burglary/larceny case could not
be located.
In addition, certain comments by the prosecutor rea-
sonably would have suggested to the defendant that
the prosecutor would not recommence prosecution in
the burglary/larceny case. The prosecutor’s concluding
statement before entering the nolle in the burglary/
larceny case was ‘‘nobody here is out anything in this
particular file.’’ The prosecutor later noted for the
record that the codefendant in the case was deceased.
At the conclusion of the hearing, the prosecutor asked
that any property relating to the case remaining in police
custody be returned to its rightful owner. ‘‘The destruc-
tion of any evidence seized at a crime scene is consistent
with a belief that no further charges will be brought
and lends credence to the defendant’s claim that [he]
reasonably believed [his] plea ended [his] criminal lia-
bility.’’10 State v. Nelson, supra, 23 Conn. App. 220.
Beyond this evidence suggesting like treatment of all
of the cases, the prosecutor’s expressed intention to
take the ‘‘bull by the horns’’ due to Judge Strackbein’s
unavailability further suggests an intent to effectuate a
global disposition substantially similar to the original
plea agreement. The bull by the horns statement was
made immediately after the prosecutor noted the terms
of the parties’ original agreement—to dispose of all of
the defendant’s cases in exchange for a guilty plea and
a fine. The mere fact that the prosecutor thought it was
necessary to state these terms for the record suggests
that this original plea agreement had relevance to the
agreement executed before Judge Kahn. It is also nota-
ble that the prosecutor did not state for the record
any material change in circumstances relevant to the
charges that would explain a change from the original
intent to effectuate a global disposition. Rather, the
only changed circumstance identified was Judge
Strackbein’s unavailability. It is unreasonable to
assume, without any explanation, that the mere happen-
stance of Judge Strackbein’s unavailability would justify
a substantive transformation of the parties’ original
global plea agreement to an agreement that conclusively
disposed of only the drug case. Conversely, Judge
Strackbein’s unavailability provides a logical basis for
going forward with a functionally similar agreement,
minus the plea to the minor charge of possession of
drug paraphernalia, because plea negotiations would
have had to begin anew with Judge Kahn, who would
thereafter have had to recuse herself from being the
trial judge. Indeed, Judge Kahn repeatedly emphasized
that she had assiduously avoided learning any substan-
tive details of the plea agreement for that reason.
Finally, although the trial court gave dispositive
weight to the fact that the prosecutor made no state-
ment in the transcript that the donation was to be given
in exchange for nolles in all four cases, in our view, it
is far more significant that the prosecutor failed to make
an unambiguous statement that the donation was con-
sideration for a promise not to commence a future
prosecution only on the drug case. If the prosecutor
intended to enter unilateral nolles on three of the cases
and effectuate a nolle agreement confined to only the
drug case, then it was incumbent on the prosecutor to
make that explicit on the record to avoid any ambiguity.
See State v. Nelson, supra, 23 Conn. App. 219 (‘‘[I]t was
incumbent upon the state to enunciate what was and
was not covered by the agreement lest the defendant
be allowed to go to plea under the impression that the
criminal portion of this tragic episode was closed. If
the state was reserving a right to reprosecute in the
event of the victim’s death, it could have, and should
have, said so.’’). It bears emphasizing that ‘‘the state,
as the drafting party wielding disproportionate power,
must memorialize any and all obligations for which it
holds the defendant responsible, as well as all promises
that it has made for the purpose of inducing the defen-
dant to cooperate. The terms of the agreement should
be stated clearly and unambiguously, so that the defen-
dant, in assenting to waive certain fundamental rights,
knows what is expected of him and what he can expect
in return. Likewise, such clarity ensures that the state
knows what it may demand of the defendant and what
it is obligated to provide in exchange for the defendant’s
cooperation.’’ (Internal quotation marks omitted.) State
v. Obas, supra, 320 Conn. 443. The defendant was enti-
tled to a clear understanding that, contrary to the origi-
nal global plea agreement contemplated by the state
and the defendant, the nolle agreement as articulated
by the state before Judge Kahn had been substantively
changed, in the view of the state, and left him vulnerable
to potential prosecution in the other three cases. The
transcript of the hearing before Judge Kahn contains
no language that would support any such notice to
the defendant.
Nonetheless, the state points to Judge Kahn’s state-
ment during the plea hearing that she could not prevent
the state from entering a nolle as evidence that she
understood that the prosecutor was entering nolles in
the cases independently and on his own initiative rather
than as part of any agreement. The problem with this
view is that it also undermines the state’s argument
that one of the nolles was part of an agreement, as
Judge Kahn drew no distinction between the nolles
on the four cases. Judge Kahn never addressed the
defendant to ask him if he understood the terms of
the agreement and did not make any statement on the
record sanctioning the parties’ agreement. Indeed,
Judge Kahn’s statement underscores the inherent ambi-
guity in the record as to the parties’ intention. See State
v. Obas, 147 Conn. App. 465, 481, 83 A.3d 674 (2014)
(plea agreement ‘‘is a contract between the defendant
and the state—not between the defendant, the state and
the court’’), aff’d, 320 Conn. 426, 130 A.3d 252 (2016).
Moreover, because Judge Kahn emphasized that the
prosecutor was ‘‘very careful not to mention what the
offer was’’ to her in chambers because she was assigned
to serve as the trial judge, she would have no idea
to what extent the nolle agreement conformed to the
original global plea agreement.11
The state also asserts that defense counsel’s silence
evidenced the defendant’s acquiescence to the state’s
purported intent to enter unilateral nolles on the three
cases other than the drug case. One, however, cannot
object to what one does not know. The silence of
defense counsel during the hearing can also be indica-
tive of his interpretation of the state’s comments as
effectuating the parties’ original intent to enter a dispo-
sition to dispose of all of the files in exchange for the
defendant’s donation. Regardless, ‘‘derelictions on the
part of defense counsel that contribute to ambiguities
and imprecisions in plea agreements may not be
allowed to relieve the [g]overnment of its primary
responsibility for insuring precision in the agreement.’’
United States v. Harvey, 791 F.2d 294, 301 (4th Cir.
1986).
On the basis of the foregoing, we hold that the state
must bear the burden for the ambiguity and lack of
clarity in the nolle agreement as memorialized on the
record by the prosecutor. We conclude that the defen-
dant had a reasonable expectation that all the nolles
were entered as a part of a global disposition akin to
the original plea agreement. Our holding is consistent
with the purposes underlying the application of this
rule of construction—namely, to ‘‘encourage greater
clarity and specificity in plea negotiations and plea
agreements . . . to ensure fairness, stabilize and final-
ize the parties’ expectations, and reduce the waste of
judicial resources required to review challenges to
guilty pleas that are encouraged when the record of the
plea proceedings is ambiguous.’’ Innes v. Dalsheim, 864
F.2d 974, 980 (2d Cir. 1988), cert. denied, 493 U.S. 809,
110 S. Ct. 50, 107 L. Ed. 2d 19 (1989).
Because the state breached the parties’ nolle
agreement by filing criminal charges related to the same
conduct at issue in the burglary/larceny case, the Appel-
late Court properly reversed the judgment of conviction
and remanded the case to the trial court with direction
to order specific performance of the nolle agreement.
The judgment of the Appellate Court is affirmed.
In this opinion ROGERS, C. J., and PALMER and
ROBINSON, Js., concurred.
1
We granted the state’s petition for certification to appeal, limited to the
following issue: ‘‘Did the Appellate Court properly conclude that the trial
court improperly denied the defendant’s pretrial motion to dismiss?’’ State
v. Kallberg, 319 Conn. 903, 122 A.3d 637 (2015).
2
At various points in the record, there are references to four docket
numbers, but five files or five cases. At one point, the state suggested that
two files were combined under one docket number. For convenience, we
refer to four cases in this opinion, consistent with the four nolles entered
on the record.
3
Although the Appellate Court indicated that Judge Kahn had been
assigned as the trial judge in the drug case; see State v. Kallberg, supra,
157 Conn. App. 723; Judge Kahn simply indicated that she ‘‘would have been
the trial judge.’’
4
The record is unclear why the state agreed to accept $271 instead of
the original, agreed upon $300 of consideration.
5
In its brief, the state also cited a portion of the colloquy in which the
prosecutor asserted: ‘‘[H]ad Judge Strackbein been here, I would have
explained to her that her prior pretrial where she acknowledged Judge
Brunetti’s offer of one year suspended after [sixty] days on the larceny four.
Perhaps the drug case changed significantly when [the] codefendant died
and [the] victim was unavailable.’’ The state asserts that these statements
suggest that the prosecutor’s ‘‘present inability to pursue prosecution of the
larceny may have left him reluctant to concede too much in the stronger
drug case.’’ It is unclear to us what these statements mean, let alone their
significance to the issue in the present case. Indeed, neither the trial court
nor the Appellate Court relied on these statements in making their determi-
nations.
6
General Statutes § 54-56b provides: ‘‘A nolle prosequi may not be entered
as to any count in a complaint or information if the accused objects to the
nolle prosequi and demands either a trial or dismissal, except with respect
to prosecutions in which a nolle prosequi is entered upon a representation
to the court by the prosecuting official that a material witness has died,
disappeared or become disabled or that material evidence has disappeared
or has been destroyed and that a further investigation is therefore necessary.’’
Practice Book § 39-30 provides equivalent terms. Thus, a defendant may
preclude the entry of a nolle by objection if the prosecutor cannot establish
one of the aforementioned reasons for entry of the nolle.
7
In the context of malicious prosecution claims, which require, among
other things, that the plaintiff prove that the prior criminal action was
terminated in his or her favor, courts have recognized that a unilateral nolle
is ‘‘really just an abandonment of prosecution that is not conditioned on
the defendant ‘giving up’ anything,’’ which would be a favorable disposition.
By contrast, a bargained for nolle, where the defendant provides consider-
ation for something of benefit to the state or the victim, would not constitute
a favorable disposition and thus precludes a malicious prosecution claim.
Lupinacci v. Pizighelli, 588 F. Supp. 2d 242, 249 (D. Conn. 2008); see also
DeLaurentis v. New Haven, 220 Conn. 225, 251, 597 A.2d 807 (1991).
8
Some courts have made clear that this rule of construction applies only
after resort to facts and extrinsic evidence fails to resolve the ambiguity as
to the parties’ intent. See, e.g., United States v. Clark, 218 F.3d 1092, 1095
(9th Cir.) (when plea agreement contains ambiguities, court will first look
to facts and extrinsic evidence to determine what parties reasonably under-
stood to be terms of agreement and, if ambiguity remains, ‘‘the government
ordinarily must bear responsibility for any lack of clarity . . . [because]
[c]onstruing ambiguities in favor of the defendant makes sense in light of
the parties’ respective bargaining power and expertise’’ [citations omitted;
internal quotation marks omitted]), cert. denied, 531 U.S. 1057, 121 S. Ct.
668, 148 L. Ed. 2d 569 (2000). We did not reach this question in State v.
Rivers, supra, 283 Conn. 713, because, like the present case, no extrinsic
evidence was presented to the court.
9
We have continued, however, to draw a distinction between cases in
which the sole evidence is documentary evidence in the nature of a contract
and those in which transcripts reflect testimonial evidence that still is subject
to a credibility assessment. See, e.g., State v. Lawrence, 282 Conn. 141, 157,
920 A.2d 236 (2007) (‘‘it would be improper for this court to supplant its
credibility determinations for those of the fact finder, regardless of whether
the fact finder relied on the cold printed record to make those determina-
tions’’); Besade v. Interstate Security Services, 212 Conn. 441, 447–49, 562
A.2d 1086 (1989) (rejecting claim that this court need not defer to factual
findings because evidence largely was documentary and, therefore, findings
were not based on personal appraisal of witness’ demeanor).
10
The state correctly points to certain countervailing facts. It contends
that photographs taken of the property would be admissible as secondary
evidence in any subsequent prosecution. See General Statutes § 54-36a (b)
(2). There was no indication on the record, however, that the state informed
the defendant that photographs of the evidence had been taken or that they
were being preserved for this purpose. The state points to the fact that the
prosecutor stated that the burglary/larceny case was ‘‘unprovable’’ ‘‘as it
stands today’’ because the codefendant was deceased and the victim could
not be located. The state overlooks the facts that the death of the codefendant
was not a fact that would change so as to make the case provable in the
future and that the prosecutor added this reason after it entered the nolle
in the case and only after Judge Kahn prompted the remark. At best, the
state’s arguments demonstrate why this aspect of the transcript is also
ambiguous.
11
To the extent the state relies on Judge Kahn’s warning to the defendant
about potential prosecution in the event of his continued substance abuse
as evidence that the state was leaving open the possibility of prosecution
even in the drug case, that argument is devoid of merit. Judge Kahn’s
comments plainly were directed at potential liability for the defendant’s
future conduct, not the possibility of prosecution for the past conduct
alleged in the nolled drug case.