State v. Angel M.

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STATE v. ANGEL M.—CONCURRENCE
ECKER, J., with whom McDONALD, J., joins, concur-
ring. I agree with the majority that the trial court did
not penalize the defendant, Angel M., for the exercise
of his constitutional right to maintain his innocence
but, instead, denied the defendant a sentencing benefit
due to his refusal to apologize to his victims. I write
separately because the conclusion that the defendant
was denied a benefit to which he was not otherwise
entitled does not end the constitutional inquiry. Under
the ‘‘unconstitutional conditions’’ doctrine, it is well
established ‘‘that the government may not deny a benefit
to a person because he exercises a constitutional right’’;
(internal quotation marks omitted) Koontz v. St. Johns
River Water Management District, 570 U.S. 595, 604,
133 S. Ct. 2586, 186 L. Ed. 2d 697 (2013); unless the
benefit is conditioned on a ‘‘germane’’ governmental
interest that ‘‘is sufficiently related to the benefit
. . . .’’ National Amusements, Inc. v. Dedham, 43 F.3d
731, 747 (1st Cir.), cert. denied, 515 U.S. 1103, 115 S.
Ct. 2247, 132 L. Ed. 2d 255 (1995). With respect to the
victim of the crimes of conviction, I believe that the
condition imposed by the trial court (i.e., an apology
to that victim) was both germane and sufficiently
related to the legitimate penological goals of sentencing
to pass constitutional scrutiny. I question, however,
whether the unconstitutional conditions doctrine was
satisfied as to the trial court’s requirement of an apology
to A, the victim of uncharged misconduct, given that
the defendant was not charged with, or convicted of,
any crimes in connection with A. Although the defen-
dant does not challenge the judgment of conviction on
this specific basis, and we therefore need not decide
whether the doctrine of unconstitutional conditions
was violated in this case, I highlight the issue so that
trial judges choosing to venture onto this thin ice in the
future will be sensitive to the constitutional concerns.
As the majority acknowledges, the distinction
‘‘between showing leniency [at sentencing] . . . and
punishing a defendant for his silence’’ is a ‘‘fine line’’
that ‘‘may be difficult to apply in a particular case
. . . .’’ (Internal quotation marks omitted.) Text accom-
panying footnote 15 of the majority opinion, quoting
United States v. Stratton, 820 F.2d 562, 564 (2d Cir.
1987). Indeed, the United States Supreme Court has
expressed ‘‘doubt that a principled distinction may be
drawn between ‘enhancing’ the punishment imposed
[on a defendant] and denying him the ‘leniency’ he
claims would be appropriate if he had cooperated.’’
Roberts v. United States, 445 U.S. 552, 557 n.4, 100 S.
Ct. 1358, 63 L. Ed. 2d 622 (1980). To the extent that a
principled distinction exists, it necessarily depends on
the establishment of a ‘‘baseline sentence,’’ which is
‘‘the normal sentence that would be meted out if consti-
tutional rights were not salient.’’ (Internal quotation
marks omitted.) United States v. Whitten, 610 F.3d 168,
195 (2d Cir. 2010); see also United States v. Oliveras,
905 F.2d 623, 628 n.8 (2d Cir. 1990) (‘‘in most situations
to even make the threshold identification of whether the
government is imposing a penalty or denying a benefit
requires the location of some baseline from which the
action at issue may be measured’’). In the federal courts,
the United States Sentencing Guidelines prescribe a
‘‘base offense level,’’ which may be adjusted upward or
downward depending on the defendant’s participation
in the crime or acceptance of responsibility. See U.S.
Sentencing Guidelines Manual cc. 2–3 (2018). Thus, the
federal courts typically can ascertain, by reference to
the baseline sentence, whether a trial court has denied
a defendant leniency or imposed a punishment as a
consequence of an assertion of constitutional rights.
See, e.g., United States v. Jones, 997 F.2d 1475, 1478
(D.C. Cir. 1993) (‘‘[h]ere, there can be little doubt that
the baseline sentence for [the defendant] was well
above the 127 months ultimately imposed’’), cert.
denied, 510 U.S. 1065, 114 S. Ct. 741, 126 L. Ed. 2d 704(1994); United States v. Klotz, 943 F.2d 707, 710 (7th Cir.
1991) (‘‘Distinguishing between rewards and penalties
was hard in the pre-guideline world, for sentencing was
so individualistic that it was next to impossible to tell
what would have happened had the constitutional right
not been pertinent. Now that the guidelines are in place,
however, there is a norm: the presumptive range.’’). In
contrast to the federal system, there is no objectively
ascertainable baseline sentence in Connecticut because
we utilize a highly individualistic sentencing paradigm
that confers on the sentencing judge ‘‘very broad discre-
tion in imposing any sentence within the statutory limits
. . . .’’ (Internal quotation marks omitted.) State v.
Huey, 199 Conn. 121, 126, 505 A.2d 1242 (1986). Given
the breadth of sentencing discretion vested in the trial
court, there simply is no baseline sentence in our state
system. Thus, it typically will be ‘‘next to impossible to
tell’’ what sentence would have been imposed in the
absence of a defendant’s assertion of his or her constitu-
tional rights. United States v. Klotz, supra, 710. This
fundamental point complicates matters in the context of
a doctrine that turns on the fine and elusive distinction
between benefit and penalty.
We are saved from this conceptual quagmire in the
present case, however, because the record clearly
reflects that the trial court was holding out a carrot
rather than threatening a stick, that is, offering the
defendant the benefit of sentencing leniency instead of
threatening him with an enhanced sentence. The trial
court explained to the defendant that ‘‘apologizing,
admitting what he did, taking responsibility will help
the victims enormously, at least that has been my expe-
rience over four decades in this business. However, it
puts a crimp in your ability to appeal, do you understand
that?’’ The defendant responded that he ‘‘did under-
stand’’ but that he could not ‘‘say sorry for something
that [he] did not do . . . .’’ The trial court replied that
‘‘that’s your decision . . . . If you wish to continue to
deny it, that’s your absolute right. The court will not
punish you for that; however, you do not get any extra
credit.’’ (Emphasis added.) Because the defendant was
denied a sentencing benefit to which he was not other-
wise entitled, I agree with the majority that the trial
court did not punish the defendant in violation of the
due process clause of the fourteenth amendment to the
United States constitution for maintaining his inno-
cence.
I write separately because the particular facts of this
case implicate another important constitutional limita-
tion at play when a sentencing judge engages in the
type of sentence bargaining that occurred here. The
majority properly reaffirms the principle that a criminal
defendant cannot, consistent with due process princi-
ples, be punished ‘‘merely for exercising a statutory or
constitutional right.’’ State v. Revelo, 256 Conn. 494, 513,
775 A.2d 260, cert. denied, 534 U.S. 1052, 122 S. Ct. 639,
151 L. Ed. 2d 558 (2001). But the fact that a court’s
sentencing offer involves the conferral of a benefit
rather than the imposition of a penalty does not give
the sentencing judge carte blanche to condition that
benefit on the defendant’s willingness to say or do any-
thing that the court believes will further the ends of
justice. To the contrary, the doctrine of unconstitutional
conditions imposes meaningful constitutional limitations
on offers of sentencing leniency that are contingent
on the defendant’s relinquishment of his constitutional
rights—even if the defendant can claim no entitlement
to leniency in the first place.
Under the unconstitutional conditions doctrine, ‘‘even
though a person has no ‘right’ to a valuable governmen-
tal benefit and even though the government may deny
him the benefit for any number of reasons, there are
some reasons upon which the government may not rely.
It may not deny a benefit to a person on a basis that
infringes his constitutionally protected interests . . . .
For if the government could deny a benefit to a person
because of his constitutionally protected [rights], his
exercise of those [rights] would in effect be penalized
and inhibited.’’ Perry v. Sindermann, 408 U.S. 593, 597,
92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972); see also Koontz
v. St. Johns River Water Management District, supra,
570 U.S. 608 (‘‘[v]irtually all of our unconstitutional
conditions cases involve a gratuitous governmental ben-
efit of some kind’’). ‘‘The key proposition of the uncon-
stitutional condition[s] doctrine is that the government
may not do indirectly what it cannot do directly. The
[United States] Supreme Court has articulated this prop-
osition in the context of holding that the government
may not grant even a gratuitous benefit on condition
that the beneficiary relinquish a constitutional right.’’
United States v. Oliveras, supra, 905 F.2d 627–28 n.7.
Of course, not all conditions are prohibited under
this doctrine. ‘‘[I]f a condition is germane—that is, if
the condition is sufficiently related to the benefit—then
it may validly be imposed. In the final analysis, the
legitimacy of a government proposal depends on the
degree of relatedness between the condition on a bene-
fit and the reasons why [the] government may withhold
the benefit altogether.’’ (Internal quotation marks omit-
ted.) National Amusements, Inc. v. Dedham, supra, 43
F.3d 747; see also Koontz v. St. Johns River Water
Management District, supra, 570 U.S. 605–606 (govern-
ment is allowed ‘‘to condition approval of a permit on
the dedication of property to the public so long as there
is a ‘nexus’ and ‘rough proportionality’ between the
property that the government demands and the social
costs of the applicant’s proposal’’); Agency for Interna-
tional Development v. Alliance for Open Society Inter-
national, Inc., 570 U.S. 205, 217, 133 S. Ct. 2321, 186
L. Ed. 2d 398 (2013) (conditional benefits burdening
constitutional rights are permissible if they ‘‘define the
federal program’’ but impermissible if they ‘‘reach out-
side it’’).
In the present case, the trial court conditioned the
‘‘extra credit’’ sentencing benefit on the defendant’s
apology to the victims—plural—both the victim whom
he was convicted of sexually assaulting and the victim
whose testimony at trial was admitted as evidence of
uncharged sexual misconduct.1 See Conn. Code Evid.
(2018) § 4-5 (b) (providing that, if certain conditions
are met, ‘‘[e]vidence of other sexual misconduct is
admissible in a criminal case to establish that the defen-
dant had a tendency or a propensity to engage in aber-
rant and compulsive sexual misconduct’’). It goes with-
out saying that the government has a legitimate interest
in eliciting an apology to the victim of the crime of
which the defendant stands convicted. The defendant’s
acceptance of responsibility, in the form of a sincere
apology to the crime victim, manifestly furthers one or
more of the legitimate penological goals of sentencing.
See State v. Santiago, 318 Conn. 1, 22, 122 A.3d 1 (2015)
(penological objectives of sentencing are ‘‘deterrence,
retribution, incapacitation, and rehabilitation’’). As the
United States Supreme Court has observed, ‘‘[a]ccep-
tance of responsibility is the beginning of rehabilitation.
And a recognition that there are rewards for those who
attempt to reform is a vital and necessary step toward
completion.’’ McKune v. Lile, 536 U.S. 24, 47, 122 S. Ct.
2017, 153 L. Ed. 2d 47 (2002). Furthermore, ‘‘[w]hen
offenders express genuine remorse in person to those
offended, the effects can be profound. . . . Empirical
studies and anecdotal evidence from restorative justice
programs confirm that face-to-face expressions of
remorse and apology matter immensely to offenders
and victims.’’ (Footnote omitted.) S. Bibas & R. Biersch-
bach, ‘‘Integrating Remorse and Apology into Criminal
Procedure,’’ 114 Yale L.J. 85, 115–16 (2004). Providing
a criminal defendant the opportunity to admit his or
her wrongdoing redounds to the benefit of society as
a whole in numerous respects; a defendant’s sincere
acceptance of responsibility repairs a tear in the social
fabric created by his or her transgression and thereby
reaffirms and strengthens the underlying moral and
legal principles at stake. Furthermore, the penitential
act may make us safer because a repentant and rehabili-
tated defendant presumably is less likely to offend
again. See, e.g., United States v. Lopinski, 240 F.3d 574,
575 (7th Cir. 2001) (sentencing credit for acceptance
of responsibility under federal sentencing guidelines
reflects, among other things, ‘‘the reduced risk of recidi-
vism of a defendant who by facing up to the wrong-
fulness of his conduct takes the first step to better
behavior in the future’’); S. Bibas & R. Bierschbach,
supra, 126 (‘‘Offenders who come to terms with their
crimes and apologize start on the path to reform. They
learn valuable lessons and feel better about themselves
as persons. They may thus become less likely to recidi-
vate and are prime candidates for mercy to temper
criminal justice.’’). I agree with the majority that the
trial court did not violate the defendant’s constitutional
rights by conditioning a sentencing benefit on the defen-
dant’s apology to the victim for the crimes of convic-
tion.2
I question, however, whether a trial court constitu-
tionally may condition a sentencing benefit on a defen-
dant’s apology to a victim of uncharged misconduct,
which is criminal conduct with which the defendant
has not been charged or convicted. As Judge Dupont
observed in her concurring opinion in State v. Huey, 1
Conn. App. 724, 738, 476 A.2d 613 (1984), aff’d,199 Conn.
121, 505 A.2d 1242 (1986), ‘‘[t]o force the admission of
guilt, at a sentencing . . . of a crime with which the
defendant is not charged might jeopardize the defen-
dant’s rights in the future, either in connection with a
retrial or with an independent trial claiming civil rights
violations.’’ Indeed, the Second Circuit Court of Appeals
has held that it is unconstitutional ‘‘[t]o require a defen-
dant to accept responsibility for crimes other than those
to which he has [pleaded] guilty or of which he has been
found guilty [because it] in effect forces defendants to
choose between incriminating themselves as to conduct
for which they have not been immunized or forfeiting
substantial reductions in their sentences to which they
would otherwise be entitled to consideration.’’ United
States v. Oliveras, supra, 905 F.2d 628; see also United
States v. Delacruz, 862 F.3d 163, 177 (2d Cir. 2017)
(‘‘[a] denial of [acceptance of responsibility] credit for
behavior [that the defendant] has continued to deny
and has not been proved against him beyond a reason-
able doubt violates the [f]ifth [a]mendment’’ (emphasis
omitted; internal quotation marks omitted)); United
States v. Austin, 17 F.3d 27, 31 (2d Cir. 1994) (defen-
dant’s refusal to accept responsibility for ‘‘any offense
other than the offense that is the subject of the plea’’
cannot be used to deny defendant sentencing benefit
(emphasis in original; internal quotation marks omit-
ted)). The First and Third Circuit Courts of Appeals
have expressed similar views. See United States v. Fri-
erson, 945 F.2d 650, 655–60 (3d Cir. 1991) (holding that
trial court’s denial of sentencing reduction for accep-
tance of responsibility on basis of defendant’s refusal
to admit guilt with respect to uncharged misconduct
violated defendant’s constitutional rights), cert. denied,
503 U.S. 952, 112 S. Ct. 1515, 117 L. Ed. 2d 651 (1992);
United States v. Perez-Franco, 873 F.2d 455, 461–64
(1st Cir. 1989) (same).
To be clear, the legal issue is not free from doubt.
Although the reasoning of Judge Dupont and the Second
Circuit is persuasive to me, I recognize that there is a
substantial line of federal authority holding otherwise.
Specifically, a majority of the federal Courts of Appeals
have held that the denial of a sentencing benefit consti-
tutionally may be conditioned on a defendant’s admis-
sion of responsibility to the commission of uncharged
misconduct, among other reasons, because such a con-
dition is rationally related to the ‘‘legitimate governmen-
tal practice of encouraging, through leniency in sentenc-
ing, both cooperation with law enforcement authorities
and contrition on the part of the defendant.’’ United
States v. Frazier, 971 F.2d 1076, 1084 (4th Cir. 1992),
cert. denied, 506 U.S. 1071, 113 S. Ct. 1028, 122 L. Ed.
2d 173 (1993); accord Ebbole v. United States, 8 F.3d
530, 537 (7th Cir. 1993), cert. denied, 510 U.S. 1182, 114
S. Ct. 1229, 127 L. Ed. 2d 573 (1994); see also United
States v. Clemons, 999 F.2d 154, 161 (6th Cir. 1993)
(adopting ‘‘the rationale of [Frazier], a [well balanced]
opinion’’), cert. denied, 510 U.S. 1050, 114 S. Ct. 704,
126 L. Ed. 2d 671 (1994); United States v. Mourning,
914 F.2d 699, 707 (5th Cir. 1990) (rejecting defendant’s
claim that denial of sentencing benefit for refusal to
admit responsibility to uncharged misconduct violated
defendant’s right to silence under fifth amendment
because ‘‘affording a possibility of a more lenient sen-
tence does not compel self-incrimination’’ (emphasis in
original)). As the Fourth Circuit Court of Appeals held
in Frazier, the denial of a sentencing benefit under such
circumstances is not unconstitutional because ‘‘[t]he
purpose of conditioning the [sentencing] reduction on
full acceptance of responsibility . . . is not to discour-
age assertion or force waiver [of constitutional rights]
or to obtain incriminating information to facilitate
future prosecution, but rather, to formalize and further
a legitimate governmental practice.’’ United States v.
Frazier, supra, 1085.
The United States Supreme Court has declined to
resolve this circuit split; see Kinder v. United States,
504 U.S. 946, 112 S. Ct. 2290, 119 L. Ed. 2d 214 (1992);3
so the issue remains unresolved. We need not decide
the issue in the present case because the defendant
does not claim that the trial court violated his constitu-
tional right to maintain his innocence by conditioning
a sentencing benefit on his admission of guilt and apol-
ogy to a victim of uncharged misconduct. The defendant
draws no constitutional distinction between either of
the two victims—the one whom he has was convicted
of sexually assaulting and the other whom he was not.
Although the issue has not been raised or briefed by
the parties, I highlight it here so that my agreement
with the majority opinion is not misconstrued as an
endorsement of a sentencing practice of dubious consti-
tutionality.
For the foregoing reasons, I concur in and join the
majority opinion.
1
The record reflects that the trial court referenced the uncharged sexual
misconduct on multiple occasions in close proximity to its request for an
apology to the ‘‘victims,’’ at one point stating: ‘‘[The defendant is] a predator,
the stepdaughter, natural daughter; although he was not charged with the
crimes against his natural daughter, she did testify under oath, [was] subject
to cross-examination, and was quite credible. These two young ladies have
been devastated by your actions, sir.’’
2
The present case involves an unusual scenario because the trial court
solicited an apology from the defendant after a trial in which the defendant
had elected to testify and proclaim his innocence. Under these circum-
stances, I suspect that many trial judges hearing an apology at such a late
stage in the proceedings would have rejected any plea for sentencing
leniency on the basis of its timing. See, e.g., United States v. Fonner, 920
F.2d 1330, 1335 (7th Cir. 1990) (‘‘[t]he . . . judge did not abuse his discretion
in concluding that [the defendant’s] last-minute apology was a deceitful
little show’’). Regardless, the trial court in the present case certainly was
entitled to hold out hope that an apology to the crime victim, however
belated, would serve a beneficial and productive penological purpose.
3
Justice Byron White, who dissented from the court’s denial of certiorari,
described the circuit split and identified the importance of the legal issue.
See Kinder v. United States, supra, 504 U.S. 951 (White, J., dissenting from
the denial of certiorari) (although ‘‘the First, Second, and Ninth Circuits
. . . have determined that conditioning the acceptance of responsibility
reduction on confession of uncharged conduct denies the defendant his
right against self-incrimination,’’ other circuits, including Fifth Circuit, have
held otherwise; ‘‘this is not a question of the mere application or simple
interpretation of [the acceptance of responsibility guideline], but is instead
a recurring issue of constitutional dimension, where the varying conclusions
of the [c]ourts of [a]ppeals determine the length of sentence actually
imposed’’).