State v. Skipwith

 STATE v. SKIPWITH—CONCURRENCE
McDONALD, J., concurring in the judgment. The vic-
tim’s rights amendment to our state constitution was
adopted to ensure that crime victims would no longer
be relegated to the sidelines as largely silent, passive
observers of a process in which their sole role was as
witness and informant.1 See Conn. Const., amend. XXIX
(b). However, because the courts are barred from con-
struing it to create a basis for any form of appellate relief
and the legislature has not enacted any enforcement
mechanisms in accordance with the constitutional
directive, the promise of the amendment is largely illu-
sory under the law as it currently stands. This state of
affairs undermines the foundational principle, declared
more than 200 years ago, that a government of laws
‘‘will certainly cease to deserve this high appellation,
if the laws furnish no remedy for the violation of a
vested legal right.’’ Marbury v. Madison, 5 U.S. (1
Cranch) 137, 163 (1803). In light of the constitutional
and statutory constraints on this court, I agree with the
majority that this court lacks the authority to grant the
form of relief sought by the plaintiff-in-error, Tabatha
Cornell.2 Nonetheless, this court can shine a light on
the circumstances that gave rise to the violation of her
constitutional rights. We can also exercise our supervi-
sory authority to adopt procedures to prevent a similar
recurrence. I would do both.
I
Our state constitution conferred on the plaintiff-in-
error ‘‘the right to object to . . . any plea agreement
entered into by the accused and the prosecution and
to make a statement to the court prior to the acceptance
by the court of the plea of guilty or nolo contendere
by the accused’’ and ‘‘the right to make a statement to
the court at sentencing . . . .’’ Conn. Const., amend.
XXIX (b) (7) and (8). In other words, the plaintiff-in-
error had the right to state her opinion, orally or in
writing, as to both the substance of the plea and the
attendant penalty, before the court accepted the plea
and sentenced the defendant, Justin Skipwith. Statutes
elaborate on the obligations of both the prosecution
and the court to ensure that crime victims have notice
and an opportunity to take advantage of these rights.
The Office of Victim Services is charged with providing
a training program for judges and prosecutors, among
others, to ensure that they are familiar with these obliga-
tions. See General Statutes § 54-203 (b) (16).
Central to the present case is General Statutes § 54-
91c.3 That statute prescribes the prosecutor’s obliga-
tions and then requires the trial court to ‘‘inquire on
the record whether any victim is present for the purpose
of making an oral statement or has submitted a written
statement. If no victim is present and no such written
statement has been submitted, the court shall inquire
on the record whether an attempt has been made to
notify any such victim [of the date, time and place of
the judicial proceeding concerning the acceptance of
a plea pursuant to a plea agreement, provided the
victim has informed the assistant state’s attorney that
the victim wishes to make or submit a statement]
. . . . After consideration of any such statements, the
court may refuse to accept, where appropriate, a negoti-
ated plea or sentence, and the court shall give the defen-
dant an opportunity to enter a new plea and to elect
trial by jury or by the court. . . .’’ (Emphasis added.)
General Statutes § 51-91c (b). This court has recognized
that ‘‘acceptance of a guilty plea must be contingent
upon hearing from the victim in order to provide the
victim with a meaningful right to participate in the plea
bargaining process.’’ State v. Thomas, 296 Conn. 375,
390–91, 995 A.2d 65 (2010).
The record in the present case reveals the following
undisputed facts relevant to compliance with these
requirements. In connection with his actions causing
the death of the plaintiff-in-error’s daughter, Briana
Washington, the defendant was charged with man-
slaughter in the first degree, manslaughter in the second
degree with a motor vehicle, misconduct with a motor
vehicle, and operation of a motor vehicle while under
the influence of liquor. In October, 2012, Attorney Jef-
frey D. Brownstein notified the assistant state’s attorney
of record in the case, in writing, that he represented
the plaintiff-in-error. Brownstein asked to be contacted
prior to any offer and disposition on the case, stating
that he and the plaintiff-in-error planned to be present
at disposition and ‘‘want the opportunity to be a part
of the plea negotiations and to address the court at
sentencing.’’ Brownstein further indicated that the
plaintiff-in-error was opposed to any suspended sen-
tence and to any plea that would permit the defendant to
avoid an admission of guilt (Alford or nolo contendere
plea).4 Before trial commenced, the case was trans-
ferred to another assistant state’s attorney, Jason Ger-
main. Brownstein did not receive a response to his
letter from anyone in the office of the defendant-in-
error, the state’s attorney for the judicial district of
Waterbury.
Prior to the commencement of jury selection on
March 4, 2013, a victim’s advocate for the state, Barbara
Jean Quinn, initiated several communications to
Brownstein, including an acknowledgement of his letter
and an offer to discuss the case, but Brownstein was
unavailable to do so at that time. Quinn also provided
Brownstein with information about case status and vari-
ous pretrial dates, including jury selection. Neither the
plaintiff-in-error nor Brownstein were available on
March 4, but the plaintiff-in-error’s son and a close
friend of Washington, who identified herself as Wash-
ington’s ‘‘sister,’’ attended jury selection that day. Quinn
and Germain spoke with the two of them at that time.
Either at that time or in a telephone call between Quinn
and Brownstein that same day, Quinn or Germain
explained that there may be serious problems with the
charge of manslaughter in the first degree, that one of
the state’s witnesses may have given false information
to the police, and that the defendant may not receive
a lengthy sentence.
Approximately one month later, on April 2, 2013, Ger-
main, defense counsel, and the defendant appeared
before the trial court, at which time they presented the
court with a proposed plea agreement. Pursuant to that
agreement, the defendant would plead nolo contendere
to the charge of manslaughter in the second degree with
a motor vehicle, as well as to the charge of operation of
a motor vehicle while under the influence of liquor.
The agreed upon total effective sentence was ten years
imprisonment, execution suspended after two years,
and three years probation.
After the court conducted a plea canvass with the
defendant and accepted the plea, but before the defen-
dant was sentenced, the court directed the following
inquiry to Germain:
‘‘The Court: You’re in contact with the family?
‘‘[Germain]: I did contact them. I talked to them
before this case started. It’s the sister that’s still
involved. I did have [Quinn], our victim advocate from
part A, contact her and advise her. We talked about
the problems with the case being [the defendant] was
stabbed, the situation, how it unfolded, and the prob-
lems we did have with the case. She understood it would
be a tough case. I don’t think there’s going to be any
problem. I think they’ll be happy with the disposition.’’
The trial court then confirmed the parties’ waiver
of the presentence investigation report and imposed
sentence on the defendant. Later that day, Brownstein
received word from Quinn that the defendant had been
sentenced in accordance with the plea agreement.
The foregoing facts reflect a clear abrogation of the
plaintiff-in-error’s constitutional and statutory rights,
which she unambiguously invoked through her coun-
sel’s letter to the assistant state’s attorney of record. The
trial court may have intended its open-ended question to
ascertain whether the members of Washington’s imme-
diate family had been notified of, and intended to exer-
cise, their rights, but it plainly did not elicit such
information. It is unclear whether Germain’s oblique
response was intentionally or inadvertently misleading.
Germain’s representation to the court that the ‘‘sister’’
was the only family member involved5 was directly con-
tradicted by Quinn’s communications with Brownstein
up until the final notice that the defendant had been
sentenced, and Brownstein’s letter, which presumably
was in Germain’s case file. Even assuming that Germain
misunderstood that Washington’s ‘‘sister’’ was the only
family member intending to be involved, there is no
indication that the fact or substance of the proposed
plea agreement had been discussed with her, that she
had been informed that family members had a right to
make a statement to the court before they decided
whether to accept the plea, or that she had been given
notice of the plea hearing date in order to avail herself
of that right. The preface to Germain’s final remarks—
‘‘I don’t think’’ and ‘‘I think’’—strongly suggests that no
such conversation occurred, as it reflects speculation
rather than an informed basis upon which he could
make a representation to the court that the plea
agreement would meet the expectations of Washing-
ton’s family. There was, of course, reason to believe it
would not. Even if Washington’s family members had
resigned themselves to the possibility that the defen-
dant would not serve a lengthy sentence because of
information communicated to them about the difficul-
ties in prosecuting the case, it was a paramount concern
to them that he not be offered a plea agreement under
which he could avoid acknowledging responsibility for
causing Washington’s death. That concern, however,
was never brought to the court’s attention.
As the trial court later acknowledged at the hearing
on the plaintiff-in-error’s motion to correct an illegal
sentence, the blame for this outcome did not rest solely
with the state. Germain’s vague reply to the court’s
open-ended inquiry should have prompted the court to
press him further to ascertain whether he had fulfilled
his statutory obligations as a prosecutor. See footnote
3 of this concurring opinion. Had the court done so, it
presumably would have ascertained facts that would
have caused it to withdraw and defer acceptance of the
plea until such time as the plaintiff-in-error was afforded
her constitutional right to review and respond to the
plea agreement.
To their credit, once these defects were subsequently
brought to their attention, the defendant-in-error and
the trial court made commendable efforts to acknowl-
edge the failures and to make amends. Germain and the
trial court both repeatedly apologized to the plaintiff-in-
error. Maureen Platt, the state’s attorney for the judicial
district of Waterbury, demonstrated laudable leader-
ship by appearing at the hearing on the plaintiff-in-
error’s motion to personally accept responsibility for
the actions of Germain, her subordinate, and to apolo-
gize for unnecessarily adding to the plaintiff-in-error’s
grief. In addition to these measures, the trial court gave
the plaintiff-in-error every leeway to address the court
and to voice her views on the record in the presence
of the defendant. By providing that opportunity and
then explaining why it would have accepted the plea
agreement even if it had known her position in advance,
the trial court arguably cured, or at least ameliorated,
the constitutional violation in the present case. Cf. State
v. Casey, 44 P.3d 756, 758, 766 (Utah 2002) (concluding
trial court remedied prosecutor’s failure to convey vic-
tim’s opposition to plea when it reopened plea at sen-
tencing, afforded victim opportunity to state objection
to reduced charge, and reaffirmed prior plea
agreement). The plaintiff-in-error’s writ to this court
makes clear, however, that a post hoc hearing was not
an adequate remedy in her view.
II
Hopefully, the present case will prompt our legisla-
ture and the Rules Committee of the Superior Court
to take steps to prevent a similar recurrence. In the
meantime, because no form of appellate relief is avail-
able, it is all the more important that our trial courts
be vigilant and proactive in protecting victims’ rights.
Several states have prescribed in greater detail the pro-
cedure whereby the trial court should elicit information
from the state regarding steps undertaken to protect
the victim’s rights before accepting a plea or imposing
sentence.6 It has been recognized that ‘‘[c]ourt certifica-
tion of compliance efforts provides a system of checks
and balances that can help preserve victims’ consulta-
tion rights without placing an undue burden on the
criminal justice process.’’ United States Department of
Justice, Office for Victims of Crimes, Office of Justice
Programs, Legal Series #7 Bulletin, ‘‘Victim Input Into
Plea Agreements,’’ (November 2002), p. 3 (available at
https://www.ncjrs.gov/ovc archives/bulletins/legalse-
ries/bulletin7/ncj189188.pdf (last visited July 28, 2017).
Drawing on these sources, I would exercise our supervi-
sory authority to prescribe such a procedure to fill the
current gap in our scheme.
‘‘It is well settled that [a]ppellate courts possess an
inherent supervisory authority over the administration
of justice. . . . Supervisory powers are exercised to
direct trial courts to adopt judicial procedures that will
address matters that are of utmost seriousness, not only
for the integrity of a particular trial but also for the
perceived fairness of the judicial system as a whole.’’
(Internal quotation marks omitted.) Kervick v. Silver
Hill Hospital, 309 Conn. 688, 710, 72 A.3d 1044 (2013).
We have previously exercised this authority to direct
our trial court to conduct a canvass or a particular
inquiry to protect important rights. See, e.g., In re Yasiel
R., 317 Conn. 773, 788–96, 120 A.3d 1188 (2015) (requir-
ing canvass of parent prior to termination of parental
rights); State v. Gore, 288 Conn. 770, 787, 955 A.2d
1 (2008) (requiring canvass of defendant to establish
validity of jury trial waiver); Duperry v. Solnit, 261
Conn. 309, 329, 803 A.2d 287 (2002) (requiring canvass
of defendant entering plea of not guilty by reason of
mental disease or defect to ensure that plea is knowing
and voluntary when state substantially agrees with
claim of mental disease or defect); State v. Brown,
235 Conn. 502, 526, 668 A.2d 1288 (1995) (requiring
preliminary inquiry, on record, when court is presented
with allegation of jury misconduct in criminal case).
In accordance with this authority, I would direct our
trial courts to undertake the following measures at the
outset of a sentencing hearing or any judicial proceed-
ing concerning the acceptance of a plea pursuant to a
plea agreement:
(a) If the victim is not present or has not submitted
a written statement, the trial court shall ascertain from
the state’s attorney:
(1) Whether the victim was informed of his or her
right to make a statement to the court, orally or in
writing, regarding the plea or sentence, and, if not,
whether reasonable measures were undertaken to do
so;
(2) If the victim elected to provide such a statement,
whether the victim (or the victim’s counsel) was noti-
fied of the date, place and time of the proceeding;
(3) If the state has proposed a plea agreement,
whether the victim has been informed of his or her
right to be provided with the terms of the proposed
agreement in writing;
(b) If the state’s attorney has not established that a
reasonable attempt has been made to notify the victim
of the foregoing rights, the court shall, unless doing
so would violate a jurisdictional requirement or the
defendant’s substantive rights:
(1) reschedule the hearing; or
(2) proceed with the hearing but reserve ruling until
the victim has been notified and given an opportunity
to make a statement; and
(3) order the state’s attorney to notify the victim of
the rescheduled hearing.
(c) If the victim is present, the court shall inquire
whether he or she has been informed of the foregoing
rights and shall recess the hearing or undertake appro-
priate measures if necessary to afford the victim a rea-
sonable opportunity to exercise those rights.
By enumerating these procedures, I do not intend to
limit the trial court’s authority to undertake any other
measures that would advance the purposes of the vic-
tim’s rights amendment.
This case provides a stark reminder that a constitu-
tional right, unadorned by a remedy to enforce or vindi-
cate that right, is a hollow one. Indeed, a victim of crime
who is denied her constitutional rights by a prosecutor
or the court is, in a very real sense, victimized all over
again. Without understating the significance of the pri-
mary victimization, this second victimization may be in
some ways more odious because it is inflicted upon
her by the levers and gears of the judicial system itself,
the very institutional mechanism she—and all people
in civilized society—relies on to have her offender held
to account. We as a state must do better than this.
I respectfully concur in the judgment.
1
See 39 H.R. Proc., Pt. 9, 1996 Sess., p. 2808, remarks of Representative
Michael P. Lawlor (amendment would provide victims with ‘‘true role in
the process’’); 39 S. Proc., Pt. 6, 1996 Sess., p. 1982, remarks of Senator
Kevin Sullivan (amendment would give victims their voice and ‘‘a part in
the process’’); cf. Kenna v. United States District Court, 435 F.3d 1011,
1013 (9th Cir. 2006) (‘‘The criminal justice system has long functioned on
the assumption that crime victims should behave like good Victorian chil-
dren—seen but not heard. The [federal] Crime Victims’ Rights Act sought
to change this by making victims independent participants in the criminal
justice process.’’).
2
The majority’s logic that the victim’s rights amendment of the Connecti-
cut constitution does not preclude the exercise of our jurisdiction over a
writ of error alleging a violation thereunder, but does preclude affording
relief on a legitimate claim brought by way of the writ seems counterintuitive.
Indeed, the most natural construction of the language in this provision
barring us from construing it to create a ground for ‘‘appellate relief’’ would
seem to apply only to parties to the underlying criminal prosecution entitled
to appeal, which does not include the crime victim. Nonetheless, I am
persuaded that the majority’s ultimate conclusion that we cannot vacate
the sentence as requested in the present writ is correct because: (1) vacating
a sentence is a form of appellate relief; (2) the amendment directs the
legislature to provide for the enforcement of the victim’s rights amendment
and it has not authorized this court to provide any such relief; (3) the
legislative debates on the proposed victim’s rights amendment clearly indi-
cate an intent simply to elevate existing statutory rights to constitutional
status; and (4) the existing statutory scheme, which was not altered concur-
rently with this amendment, unambiguously precluded the courts from vacat-
ing a plea solely on the ground that a right conferred on victims had been
violated. See General Statutes § 54-223 (‘‘[f]ailure to afford the victim of a
crime any of the rights provided pursuant to any provision of the general
statutes shall not constitute grounds for vacating an otherwise lawful convic-
tion or voiding an otherwise lawful sentence or parole determination’’
[emphasis added]).
I note that several other jurisdictions have provided, by way of constitu-
tional amendment or statute, remedies for constitutional violations of vic-
tims’ rights. See, e.g., 18 U.S.C. § 3771 (d) (3) and (5) (permitting victim to
file writ of mandamus to remedy violation of victim’s rights and authorizing
court to reopen plea or sentence under certain conditions); Kenna v. United
Stated District Court, 435 F.3d 1011, 1017–18 (9th Cir. 2006) (granting writ
of mandamus under 18 U.S.C. § 3771 [d] [3] and ordering trial court to
conduct new sentencing hearing allowing victims to speak if other statutory
requirements met); Ariz. Rev. Stat. Ann. §§ 8-416 A and 13-4437 A (West
Supp. 2016) (‘‘[t]he victim has standing to seek an order, to bring a special
action or to file a notice of appearance in any appellate proceeding seeking
to enforce any right or to challenge an order denying any right guaranteed
to victims’’); State v. Barrett, 350 Or. 390, 255 P.3d 472 (2011) (construing
constitutional and statutory provisions to authorize court to vacate sentence
and conduct resentencing hearing to remedy violation of constitutional right
to be present at sentencing after court accepted plea agreement without
notice to victim); see generally D. Beloof, ‘‘The Third Wave of Crime Victims’
Rights: Standing, Remedy, and Review,’’ 2005 B.Y.U. L. Rev. 255, 300–31
(2005) (overviewing remedy and review concerns and approaches in various
jurisdictions). Illinois’ constitutional provision on crime victims’ rights,
which also barred the provision of such rights to be construed as a basis
for appellate relief, was in large part the model for our state’s victim’s rights
amendment. See 39 H.R. Proc., Pt. 9, 1996 Sess., pp. 2822, 2825, 2851, 2853;
39 S. Proc., Pt. 10, 1996 Sess., pp. 3246–47. Illinois amended its constitution
in 2014, to change the appellate relief bar to provide: ‘‘Nothing in this
[s]ection or any law enacted under this [s]ection shall be construed as
creating (1) a basis for vacating a conviction or (2) a ground for any relief
requested by the defendant.’’ (Emphasis added.) Ill. Const., art. I, § 8.1 (e).
3
General Statutes § 54-91c provides in relevant part: ‘‘(a) For the purposes
of this section, ‘victim’ means a person who is a victim of a crime, the legal
representative of such person, a member of a deceased victim’s immediate
family or a person designated by a deceased victim in accordance with
[General Statutes §] 1-56r.
‘‘(b) Prior to the imposition of sentence upon any defendant who has
been found guilty of any crime or has pleaded guilty or nolo contendere to
any crime, and prior to the acceptance by the court of a plea of guilty or
nolo contendere made pursuant to a plea agreement with the state wherein
the defendant pleads to a lesser offense than the offense with which such
defendant was originally charged, the court shall permit any victim of the
crime to appear before the court for the purpose of making a statement for
the record, which statement may include the victim’s opinion of any plea
agreement. In lieu of such appearance, the victim may submit a written
statement or, if the victim of the crime is deceased, the legal representative
or a member of the immediate family of such deceased victim may submit
a statement of such deceased victim to the state’s attorney, assistant state’s
attorney or deputy assistant state’s attorney in charge of the case. Such
state’s attorney, assistant state’s attorney or deputy assistant state’s attorney
shall file the statement with the sentencing court and the statement shall
be made a part of the record at the sentencing hearing. Any such statement,
whether oral or written, shall relate to the facts of the case, the appropriate-
ness of any penalty and the extent of any injuries, financial losses and loss
of earnings directly resulting from the crime for which the defendant is
being sentenced. The court shall inquire on the record whether any victim
is present for the purpose of making an oral statement or has submitted a
written statement. If no victim is present and no such written statement
has been submitted, the court shall inquire on the record whether an attempt
has been made to notify any such victim as provided in subdivision (1) of
subsection (c) of this section . . . . After consideration of any such state-
ments, the court may refuse to accept, where appropriate, a negotiated plea
or sentence, and the court shall give the defendant an opportunity to enter
a new plea and to elect trial by jury or by the court.
‘‘(c) (1) Except as provided in subdivision (2) of this subsection, prior to
the imposition of sentence upon such defendant and prior to the acceptance
of a plea pursuant to a plea agreement, the state’s attorney, assistant state’s
attorney or deputy assistant state’s attorney in charge of the case shall notify
the victim of such crime of the date, time and place of the original sentencing
hearing or any judicial proceeding concerning the acceptance of a plea
pursuant to a plea agreement, provided the victim has informed such state’s
attorney, assistant state’s attorney or deputy assistant state’s attorney that
such victim wishes to make or submit a statement as provided in subsection
(b) of this section and has complied with a request from such state’s attorney,
assistant state’s attorney or deputy assistant state’s attorney to submit a
stamped, self-addressed postcard for the purpose of such notification. . . .
‘‘(3) If the state’s attorney, assistant state’s attorney or deputy assistant
state’s attorney is unable to notify the victim, such state’s attorney, assistant
state’s attorney or deputy state’s attorney shall sign a statement as to
such notification.
‘‘(d) Upon the request of a victim, prior to the acceptance by the court
of a plea of a defendant pursuant to a proposed plea agreement, the state’s
attorney, assistant state’s attorney or deputy assistant state’s attorney in
charge of the case shall provide such victim with the terms of such proposed
plea agreement in writing. . . .’’
4
Under an Alford plea; see North Carolina v. Alford, 400 U.S. 25, 37, 91
S. Ct. 160, 27 L. Ed. 2d 162 (1970); a criminal defendant is not required to
admit his guilt, but acknowledges that the state’s evidence against him is
sufficient to establish his guilt beyond a reasonable doubt. See State v.
Faraday, 268 Conn. 174, 204–205, 842 A.2d 567 (2004). Under a nolo conten-
dere plea, a defendant simply elects not to contest his guilt, and therefore,
unlike an Alford plea, a plea of nolo contendere may not be used against
a defendant as an admission in a subsequent criminal or civil case. See id.,
205 n.17.
5
At the hearing before the trial court, Brownstein conceded that Germain
could not be faulted for assuming that Washington’s friend was her sister,
because she had identified herself as such.
6
See, e.g., Ala. Code § 15-23-71 (West 2010); Ariz. Rev. Stat. Ann. § 13-
4423 (West 2010); 725 Ill. Comp. Stat. Ann. 120/4.5 (West 2008); Ind. Code
Ann. § 35-35-3-5 (LexisNexis 2012); Me. Rev. Stat. Ann. tit. 17-A, § 1173 (West
Supp. 2016); Md. Code Ann., Crim. Proc. § 11-403 (LexisNexis Supp. 2016);
N.M. Stat. Ann. § 31-26-10.1 (2010); Ariz. Rules of Crim. Proc. 39 (f); Md.
Rules of Crim. Proc. 4-243; N.M. Rules of Crim. Proc. 6-113.