State v. Dzwonkowski

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STATE OF CONNECTICUT v. DANIEL
DZWONKOWSKI
(AC 35702)
Gruendel, Beach and Harper, Js.
Argued March 6—officially released June 17, 2014
(Appeal from Superior Court, judicial district of
Fairfield, geographical area number two, Rodriguez, J.)
Michael Zariphes, assigned counsel, for the appel-
lant (defendant).
Jonathan M. Sousa, special deputy assistant state’s
attorney, with whom, on the brief, were John C. Smriga,
state’s attorney, and Tatiana A. Messina, assistant
state’s attorney, for the appellee (state).
Opinion
BEACH, J. The defendant, Daniel Dzwonkowski,
appeals from the judgment of conviction, rendered by
the trial court following his guilty plea, pursuant to a
Garvin agreement,1 of possession of a controlled sub-
stance with intent to sell in violation of General Statutes
§ 21a-277 (b). The defendant claims that (1) his plea
violated his due process rights because it was not
entered knowingly, voluntarily and intelligently, and (2)
his due process rights were violated when the court
imposed the maximum sentence allowed under the
agreement because (a) he did not have fair notice of
the terms of the agreement, and (b) the evidence offered
by the state to support a violation of the agreement
was not admitted properly at the sentencing hearing.
We affirm the judgment of the trial court.
The record reveals the following facts and procedural
history. On April 13, 2012, Bridgeport police officers
executed a search warrant for the defendant’s residence
in Stratford. The return and inventory form listing the
items seized during the search stated that the police
recovered $166 in cash, plastic baggies, a digital scale,
a metal box containing drug paraphernalia, a cell phone
and 2.27 ounces of marijuana. The defendant was
arrested and charged with, inter alia, possession of a
controlled substance with intent to sell in violation of
§ 21a-277 (b).2
During the plea hearing on August 13, 2012, the defen-
dant pleaded guilty to possession of a controlled sub-
stance with intent to sell in violation of § 21a-277 (b)
pursuant to a Garvin agreement, which, in exchange
for his guilty plea, provided that if he was fully compli-
ant with a program at Bridgeport’s Alternative to Incar-
ceration Center (program), he would receive a fully
suspended sentence. If, on the other hand, he was not
compliant, he would be subject to a maximum sentence
of three years incarceration, suspended after one year,
and three years probation. The court further stated that
the defendant was to complete the substance abuse
portion of the program, to obey all the rules and regula-
tions of the program, and to submit negative urines
when randomly required to do so. After the court thor-
oughly canvassed the defendant, the court accepted the
plea and found that he knowingly, freely, voluntarily
and intelligently pleaded guilty.
At an October 15, 2012 hearing, a representative of
the program informed the court that the defendant was
noncompliant with the program due to absences. The
court informed the defendant that he must attend the
program, but no further action was taken at that time.
At the sentencing hearing on March 15, 2013, the state
offered two reports indicating that the defendant had
missed five appointments with the program. The court
determined that the defendant had violated the terms
of the agreement and sentenced him to three years
incarceration, execution suspended after one year, and
three years probation. This appeal followed. Additional
facts will be set forth as necessary.
I
The defendant first claims that his plea violated his
due process rights because, as a result of a defective
plea canvass, it was not entered knowingly, voluntarily
or intelligently. We disagree.
The defendant acknowledges that this claim was not
preserved and seeks review pursuant to State v. Gold-
ing, 213 Conn. 233, 567 A.2d 823 (1989).3 We review
the defendant’s claim under Golding because the record
is adequate for review, and the defendant has alleged
a claim of constitutional magnitude. See State v. Fagan,
280 Conn. 69, 90, 905 A.2d 1101 (2006) (inadequate plea
canvass implicates due process rights), cert. denied,
549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007).
The defendant’s claim fails under the third prong of
Golding because the court properly determined that
his plea pursuant to the Garvin agreement was entered
knowingly, voluntarily and intelligently.
‘‘In order for a guilty plea to comport with due pro-
cess, the plea must be voluntary and knowingly entered.
Boykin v. Alabama, 395 U.S. 238, 243–44, 89 S. Ct. 1709,
23 L. Ed. 2d 274 (1969). [W]e conduct a plenary review
of the circumstances surrounding the plea to determine
if it was knowing and voluntary. . . . There are three
constitutional rights of which a defendant must be cog-
nizant prior to entering a guilty plea. They are (1) the
privilege against self-incrimination, (2) the right to a
trial by jury and (3) the right to confront accusers. [Id.]
Although the purpose of Practice Book § 39-19 is to
ensure that guilty pleas comport with due process, a
guilty plea may satisfy constitutional requirements even
in the absence of literal compliance with [its] prophylac-
tic safeguards . . . . In other words, substantial com-
pliance is sufficient.’’ (Citation omitted; internal
quotation marks omitted.) State v. Lage, 141 Conn. App.
510, 523–24, 61 A.3d 581 (2013).
A
The defendant claims that the plea canvass violated
his due process rights because it failed to comply with
Practice Book § 39-19 (1).4 Section 39-19 provides in
relevant part: ‘‘The judicial authority shall not accept
the plea without first addressing the defendant person-
ally and determining that he or she fully understands:
(1) The nature of the charge to which the plea is offered
. . . .’’ The defendant maintains that during the plea
canvass, the court inquired only whether he understood
the elements of the crime to which he was pleading
guilty. That inquiry, he contends, was insufficient
because the rules of practice require the court to apprise
him of the elements of the charge or at the very least
to inquire whether trial counsel did so. We are not
persuaded that the inquiry was inadequate.
‘‘[I]t is well established that a plea of guilty cannot
be voluntary in the sense that it constitutes an intelligent
admission that the accused committed the offense
unless the accused has received real notice of the true
nature of the charge against him, the first and most
universally recognized requirement of due process.
. . . In determining whether the defendant had real
notice of the charge against him, however, [a] court
must consider the totality of the circumstances sur-
rounding the entry of a plea. . . . Moreover, [o]ur
courts have stopped short of adopting a per se rule that
notice of the true nature of the charge always requires
the court to give a description of every element of the
offense charged. . . . Rather, we have held that . . .
even without an express statement by the court of the
elements of the crimes charged, it is appropriate to
presume that in most cases defense counsel routinely
explain the nature of the offense in sufficient detail to
give the accused notice of what he is being asked to
admit. . . . [I]t is normally presumed that the defen-
dant is informed by his attorney of the charges against
him and the elements of those charges . . . . Thus,
unless a record contains some positive suggestion that
the defendant’s attorney had not informed the defen-
dant of the elements of the crimes to which he was
pleading guilty, the normal presumption applies.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Reid, 277 Conn. 764, 782–84, 894 A.2d 963 (2006).
The short form information charged the defendant
with, inter alia, possession of a controlled substance
with intent to sell in violation of § 21a-277 (b). When
the court asked the defendant how he pleaded to the
charge of possession of marijuana with intent to sell
or dispense in violation of § 21a-277 (b), he answered,
‘‘[g]uilty.’’ During the plea canvass, the court asked the
defendant: ‘‘And I’m not sure if I asked you, but you
do understand the elements of the offense and the pen-
alties which apply?’’ The defendant answered affirma-
tively. The court then inquired twice if the defendant
had any questions, and both times the defendant stated
that he did not. The record is devoid of any indication
that the defendant was not informed of the nature of
the charge against him and, thus, the court properly
could rely on the presumption that he was informed by
his attorney of the charge against him and of the ele-
ments of the charge.
B
The defendant next argues that the plea canvass did
not comport with due process because, in violation of
Practice Book § 39-19 (4), the court failed to inform
him that the maximum possible sentence under § 21a-
277 (b) was seven years incarceration and/or a fine of
$25,000. The defendant argues that the court’s inquiry
was limited to whether he understood the penalties that
applied, and that that inquiry was insufficient. He argues
that the court was required to explain to him the maxi-
mum sentence that could be imposed, or, at the very
least, to inquire whether counsel had done so. He fur-
ther argues that if he had known the maximum penalty
for violating § 21a-277 (b), it is reasonable to conclude
that he would not have accepted the state’s offer. We
are not persuaded.
Practice Book § 39-19 provides in relevant part that
‘‘[t]he judicial authority shall not accept the plea with-
out first addressing the defendant personally and
determining that he or she fully understands . . . (4)
The maximum possible sentence on the charge . . . .’’
In deciding a claim made pursuant to § 39-19, ‘‘we must
consider whether accurate information would have
made any difference in [a defendant’s] decision to enter
[a] plea.’’ (Internal quotation marks omitted.) State v.
Irala, 68 Conn. App. 499, 511, 792 A.2d 109, cert. denied,
260 Conn. 923, 797 A.2d 519, cert. denied, 537 U.S. 887,
123 S. Ct. 132, 154 L. Ed. 2d 148 (2002).
The court asked the defendant if he understood the
‘‘elements of the offense and the penalties which apply,’’
and the defendant answered, ‘‘[y]es.’’ The court
explained to the defendant the parameters of the Gar-
vin agreement and asked if he understood that he was
pleading guilty in exchange for receiving a sentence
not greater than three years, suspended after one year
of incarceration, and three years probation, but that,
depending on his compliance with the agreement, he
could receive a sentence of three years suspended and
no incarceration, with three years probation. The defen-
dant indicated that he understood. The defendant’s
answers indicated that he was aware both of the penal-
ties that applied to the offense to which he was pleading
guilty and of the actual sentencing possibilities in this
case. See State v. Domian, 235 Conn. 679, 689, 668 A.2d
1333 (1996) (‘‘the constitutional mandate is not strict
adherence to the rule but, rather, an understanding by
the defendant of the actual sentencing possibilities’’
[internal quotation marks omitted]).
Further, in light of the court’s inquiries and the defen-
dant’s responses, the record indicates that express men-
tion of the maximum sentence under the statute would
not have made a difference in the defendant’s decision.
See State v. Irala, supra, 68 Conn. App. 513. Because the
agreement provided that the defendant would receive a
suspended sentence and three years probation if he
complied with the requirements of the program, there
is no reason to believe that he would not have pleaded
guilty if the court had expressly stated the maximum
sentence of seven years imprisonment pursuant to
§ 21a-277 (b). See State v. Domian, supra, 235 Conn.
690. We can fairly assume that the defendant chose to
plead guilty because, under the Garvin agreement, if
he complied with the program he would serve no jail
time, but only a period of probation.
C
The defendant next argues that his guilty plea was
invalid because the plea canvass violated the require-
ments of Practice Book § 39-19 (5),5 and the due process
clauses of the federal and state constitutions6 in that
the court failed to inform him that by pleading guilty
he was waiving his privilege against self-incrimination.
We do not agree.
‘‘Boykin set forth three federal constitutional rights
of which the defendant must be cognizant prior to enter-
ing a plea. First, is the privilege against compulsory
self-incrimination guaranteed by the Fifth Amendment
and applicable to the States by reason of the Fourteenth.
. . . Second, is the right to trial by jury. . . . Third, is
the right to confront one’s accusers. . . . [A] reviewing
court cannot presume from a silent record that a defen-
dant knowingly waived these three important federal
rights. . . . It is evident that the United States Supreme
Court [in Boykin] views the entry of a guilty plea as
comparable to the admission into evidence of a confes-
sion. That court has observed that because a confession
is incriminating, its admissibility depends upon the
defendant having been told that he has a right against
self-incrimination in order to ensure a reliable determi-
nation on the voluntariness issue. . . . Because a guilty
. . . plea has much the same impact as a confession,
that court has mandated that the defendant be informed
that he need not enter the plea. The tenor of the Boykin
opinion does not support [a] contention that the federal
constitution requires that [a defendant] be informed, at
his plea canvass, that his right against self-incrimination
also protects him from being compelled to testify at a
trial. We conclude that, for protection of his privilege
against self-incrimination, the federal constitution man-
dates only that a defendant be apprised of the fact that
he does not have to enter a plea of guilty . . . and
thus incriminate himself.’’ (Citations omitted; footnotes
omitted; internal quotation marks omitted.) State v. Nel-
son, 221 Conn. 635, 639–42, 605 A.2d 1381 (1992); see
also State v. Carter, 243 Conn. 392, 400–401, 703 A.2d
763 (1997) (court effectively notified defendant during
plea canvass of right against self-incrimination by virtue
of defendant’s recognition that he knew he was volunta-
rily giving up right to trial).
During the plea canvass, the court inquired whether
the defendant was being forced or threatened to admit
that he possessed marijuana with intent to sell. The
defendant answered: ‘‘No.’’ The court also asked the
defendant if he understood that by pleading guilty he
was giving up his rights to plead not guilty, to a trial
before a judge or jury, to confront and cross-examine
witnesses at trial, and to present a defense. The defen-
dant answered that question affirmatively. Viewing the
plea canvass as a whole, we conclude that in accor-
dance with Nelson, the plea canvass comported with
federal due process because the defendant was ade-
quately apprised that he did not have to enter a plea
of guilty. See State v. Nelson, supra, 221 Conn. 642.
We conclude that the plea canvass indicates that the
defendant knowingly and voluntarily pleaded guilty.
Accordingly, the defendant’s claim fails under the third
prong of Golding.
II
The defendant next claims that the court violated his
right to due process when it erroneously found that he
had violated the terms of the Garvin agreement and
imposed the maximum sentence under the agreement.
He argues that (1) he did not have fair notice that failure
to attend appointments at the program was a violation
of the agreement and (2) that there was no evidence
to support the court’s finding that he had violated the
agreement. The defendant requests Golding review of
his claims. We conclude that the record is adequate for
review and that his claims, which implicate due process,
are of constitutional magnitude. We conclude, however,
that his claims fail under the third prong of Golding
because he had fair notice of the terms of the agreement
and the court properly relied on evidence that he had
missed appointments at the program in concluding that
he had violated the agreement.
A
The defendant argues that the Garvin agreement was
not clear, and, thus, he did not have fair notice that
failing to attend appointments at the program would
constitute violations of the agreement and thus result
in the imposition of the sentence actually imposed.
We disagree.
‘‘[B]ecause a defendant pleading guilty pursuant to
a plea agreement waives a number of fundamental con-
stitutional rights . . . the circumstances surrounding
the plea agreement must comport with due process to
ensure [the] defendant’s understanding of its conse-
quences. . . . The notion of fundamental fairness
embodied in due process implies that whatever prom-
ises the government makes in the course of a plea
agreement to induce a guilty plea must be fulfilled. . . .
Our Supreme Court has held that a plea agreement is
akin to a contract and that the well established princi-
ples of contract law can provide guidance in the inter-
pretation of a plea agreement. . . . Whether a
contractual provision is ambiguous presents a question
of law and therefore is subject to de novo review. . . .
Where the language of the contract is clear and unam-
biguous, the contract is to be given effect according to
its terms.’’ (Citations omitted; internal quotation marks
omitted.) State v. Rosado, 92 Conn. App. 823, 826–27,
887 A.2d 917 (2006).
The terms of the plea agreement were stated by the
court. At the August 13, 2012 plea hearing, the court
informed the defendant: ‘‘You entered into a plea
agreement where you have agreed to receive a sentence
not greater than three years, suspended after you serve
one year, and three years of probation. . . . Of course,
depending on your own performance you could receive
a sentence of three years suspended and no incarcera-
tion and three years probation. . . . And a lot of what
you receive will depend on how well you do at the
Alternative to Incarceration Center program. For exam-
ple, the treatment that you’re receiving, you’re to be
involved in that treatment. You’re to complete the sub-
stance abuse portion of that program, obey all the rules
and regulations of [the program] and submit negative
urines when you are randomly required to do so. . . .
[I]f you are not in compliance, the judge that’s taking
your case, whether it’s myself or another judge, could
impose a sentence of three years, suspended after one
year, and three years of probation.’’
Although the court did not explicitly state at the plea
hearing that a rule of the program was to attend meet-
ings, the court did inform the defendant that he had to
obey the rules and regulations of the program. At an
October 15, 2012 hearing, five months prior to the sen-
tencing, a representative of the program informed the
court, in the presence of the defendant, that attending
meetings was a requirement of the program. He stated
to the court that ‘‘[the defendant] was noncompliant.
So, he just stopped coming after he finished with group.
So, just . . . let him know that he should continue
[with the program].’’ The court then clearly informed
the defendant that attendance at the program was
required:
‘‘The Court: You got to go to [the program]. You
know what?
‘‘The Defendant: So, go.
‘‘The Court: You’re lucky he’s [the sentencing judge]
not doing it today because he’d—
‘‘The Defendant: Okay.
‘‘The Court:—probably put you in jail for a year.
‘‘The Defendant: Yeah, but I—
‘‘The Court: Go to [the program].
‘‘The Defendant: Okay.
‘‘The Court: Just make sure you go.
‘‘The Defendant: All right.
‘‘The Court: Don’t give me any excuses.
‘‘The Defendant: All right.’’7
At a January 18, 2013 hearing,8 the court informed
the defendant that he must ‘‘continue to work with the
Alternative to Incarceration Center program and that
you be compliant with that program, which not only
means having clean urines, but [being] in compliance
with all of the other conditions that they may impose
upon you . . . .’’ When asked by the court if he under-
stood, defendant responded: ‘‘Yes, sir.’’
In sum, the court stated at the August 13, 2012 plea
hearing that the defendant had to complete the sub-
stance abuse portion of the program, and ‘‘obey all the
rules and regulations of the program . . . .’’ (Empha-
sis added.) The court further stated that noncompliance
could result in a sentence of three years incarceration,
suspended after one year, and three years probation.
A representative from the program represented on the
record, at the October 15, 2012 hearing, that the rules
of the program require attendance and that the defen-
dant was noncompliant because he had stopped
attending the program. On that date, the court made
clear that the defendant was to go to the program and
that his past behavior of noncompliance, as described
by the program representative, could result in an impo-
sition of the maximum sentence allowed under the
agreement. Accordingly, when viewed as a whole, the
defendant was put on fair notice that his failure to
attend the program could result in the sentence that
was ultimately imposed.
B
The defendant argues that there was insufficient evi-
dence to support the court’s finding that he had violated
the terms of the agreement.9 He argues that two reports
from the program that the court had used in making
its sentencing determination were not admitted into
evidence properly and, therefore, the court erred in
determining that he had violated the terms of the
agreement. We disagree.
At the sentencing hearing on March 15, 2013, the
prosecutor stated: ‘‘Back in January, on the 18th, when
we were all here, the state had, and I know Your Honor
has the transcript, had read off a number of different
reports where [the defendant] was failing to report. He
was missing appointments. Although he was testing
positive in the beginning and then afterward negative
for any illicit substances, he wasn’t reporting to his case
manager. He had a number of excuses. I believe that
he had a baby. Most recently, it was a car accident.
. . . I am in possession of [two] reports [from the pro-
gram]. The one dated for the 22nd of February as well
as the one dated for today, which, although there are
some positive things in the report as far as not testing
positive for any illicit substances, the defendant still
remained noncompliant as far as his . . . numerous
missed appointments. . . . The most recent report
dated for today indicates that there are four missed
appointments; on February 6, February 19, February
27, March 6 and March 11.’’
After considering the defendant’s reasons for missing
appointments, such as his being in a car accident on
February 10, 2013, his lack of a car, his health problems
and his trying to raise his three month old daughter, the
court imposed a sentence of three years incarceration,
suspended after one year, and three years probation.
The court explained: ‘‘You have a history of not show-
ing up.’’
‘‘Under a Garvin agreement, a court may impose
sentences predicated on the defendant’s failure to fulfill
a condition of the agreement . . . . The burden of
proof for determining whether a Garvin agreement has
been violated is minimum indicia of reliability.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Brown, 145 Conn. App. 174, 188, 75 A.3d 713, cert.
denied, 310 Conn. 936, 79 A.3d 890 (2013). ‘‘To arrive
at a just sentence, a sentencing judge may consider
information that would be inadmissible for the purpose
of determining guilt . . . . Generally, due process does
not require that information considered by the trial
judge prior to sentencing meet the same high procedural
standard as evidence introduced at trial. Rather, judges
may consider a wide variety of information. . . . Con-
sistent with due process the trial court may consider
responsible unsworn or out-of-court information rela-
tive to the circumstances of the crime and to the con-
victed person’s life and circumstance. . . . It is a
fundamental sentencing principle that a sentencing
judge may appropriately conduct an inquiry broad in
scope, and largely unlimited either as to the kind of
information he may consider or the source from which
it may come. . . . Nevertheless, [t]he trial court’s dis-
cretion . . . is not completely unfettered. As a matter
of due process, information may be considered as a
basis for a sentence only if it has some minimal indicium
of reliability. . . . As long as the sentencing judge has
a reasonable, persuasive basis for relying on the infor-
mation which he uses to fashion his ultimate sentence,
an appellate court should not interfere with his discre-
tion.’’ (Citations omitted; internal quotation marks omit-
ted.) State v. Eric M., 271 Conn. 641, 649–50, 858 A.2d
767 (2004).
The report from the program regarding the defen-
dant’s absences had the minimum indicia of reliability
required for use in sentencing. The defendant did not
dispute that he had missed appointments. The defen-
dant’s counsel indicated that the defendant had missed
some appointments, but that he had made efforts to go
to the program as soon as possible after his missed
appointments. The defendant addressed the court and
did not dispute that he had absences from the program,
but rather gave reasons for his absences, which the
court did not credit. The court did not abuse its discre-
tion in determining that there was a minimum indicia
of reliability that the defendant had violated the terms
of the Garvin agreement.
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘A Garvin agreement is a conditional plea agreement that has two possi-
ble binding outcomes, one that results from the defendant’s compliance
with the conditions of the plea agreement and one that is triggered by his
violation of a condition of the agreement. See State v. Garvin, [242 Conn.
296, 300–302, 699 A.2d 921 (1997)].’’ (Internal quotation marks omitted.)
State v. Petaway, 107 Conn. App. 730, 732 n.2, 946 A.2d 906, cert. denied,
289 Conn. 926, 958 A.2d 162 (2008).
2
The defendant was also charged with possession of a controlled sub-
stance in violation of General Statutes § 21a-279 (c) and use of drug parapher-
nalia in violation of General Statutes § 21a-267 (a). The state nolled these
remaining charges upon the court’s acceptance of the defendant’s plea.
3
In Golding, our Supreme Court held that ‘‘a defendant can prevail on a
claim of constitutional error not preserved at trial only if all of the following
conditions are met: (1) the record is adequate to review the alleged claim
of error; (2) the claim is of constitutional magnitude alleging the violation
of a fundamental right; (3) the alleged constitutional violation clearly exists
and clearly deprived the defendant of a fair trial; and (4) if subject to
harmless error analysis, the state has failed to demonstrate harmlessness
of the alleged constitutional violation beyond a reasonable doubt. In the
absence of any one of these conditions, the defendant’s claim will fail.’’
(Emphasis omitted; footnote omitted.) State v. Golding, supra, 213 Conn.
239–40.
4
The defendant also argues that the plea failed to comply with Practice
Book § 39-27 (1) and (2), which concern standards regarding the withdrawal
of previously accepted pleas. The merits of his claim are sufficiently
addressed by consideration of Practice Book § 39-19, which concerns the
acceptance of pleas. Pursuant to Practice Book § 39-27, a defendant may
seek to withdraw a plea if there has not been substantial compliance with
Practice Book § 39-19.
5
Practice Book § 39-19 provides in relevant part: ‘‘The judicial authority
shall not accept the plea without first addressing the defendant personally
and determining that he or she fully understands . . . (5) The fact that he
or she has the right to plead not guilty . . . .’’
6
The defendant does not claim that the state constitution affords him any
greater protection than the federal constitution. See State v. Robinson, 227
Conn. 711, 721–22, 631 A.2d 288 (1993) (‘‘We have repeatedly apprised
litigants that we will not entertain a state constitutional claim unless the
defendant has provided an independent analysis under the particular provi-
sions of the state constitution at issue. . . . Without a separately briefed
and analyzed state constitutional claim, we deem abandoned the defendant’s
claim . . . .’’ [Citations omitted.]).
7
At the plea hearing, the court clearly informed the defendant that under
the agreement he was required to obey the rules of the program. Even if
the defendant were to argue that at the time of the plea hearing he was
unaware that a rule of the program was to attend meetings, at the October
15, 2012 hearing it was made clear that he was to attend meetings; otherwise,
the maximum sentence under the agreement could be imposed. The reports
from the program, to which the state referred at the sentencing hearing,
indicated that the defendant had five absences ranging from February 6,
2013, until March 11, 2013. These absences occurred subsequent to the
court’s statement to the defendant on October 15, 2012, to attend meetings.
8
The sentencing hearing was continued several times, once because of
medical reasons on the part of the defendant and other times for which the
record does not reflect the reason.
9
At oral argument before this court, the state argued with respect to the
defendant’s sufficiency claim that the issue was not moot on the date of
oral argument but would become moot on March 15, 2014, when the defen-
dant would complete his one year of incarceration. There is an insufficient
factual record before this court to dismiss the defendant’s sufficiency claim
on mootness grounds. Accordingly, we will address the merits of this claim.