State v. White

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STATE OF CONNECTICUT v. ANTUAN WHITE
(AC 39105)
Prescott, Elgo and Beach, Js.
Syllabus
The defendant, who previously had been convicted of, inter alia, various
drug-related offenses following pleas of guilty pursuant to a plea
agreement, appealed to this court from the trial court’s denial of his
motion to correct an illegal sentence. Under the plea agreement, the
defendant was to be sentenced to a certain term of incarceration fol-
lowed by a period of conditional discharge, provided that he appeared
for sentencing on a certain date. The defendant failed to appear at the
scheduled sentencing and, following his rearrest, ultimately received a
sentence for a longer term of incarceration and special parole on the
charges to which he previously had pleaded guilty. Thereafter, the defen-
dant, as a self-represented party, filed a motion to correct an illegal
sentence and also requested the appointment of counsel. L was
appointed to represent the defendant for the purpose of determining,
pursuant to State v. Casiano (282 Conn. 614), whether there was a
sound basis for the appointment of counsel to prosecute the merits of
the defendant’s motion to correct an illegal sentence. After a hearing
thereon, L stated his opinion that there was no sound basis for the
defendant’s claims, and the trial court agreed, finding that there was
no sound basis for L’s continued representation. In a subsequent hearing,
the defendant, as a self-represented party, argued the merits of his
motion to correct before the same trial judge, who denied that motion.
On the defendant’s appeal to this court, held:
1. The defendant could not prevail on his claim that that the trial court
erred by not appointing counsel to represent him on the merits of his
motion to correct an illegal sentence, which was based on his claim
that reversal was required because L was acting as a neutral agent of
the court rather than as his advocate in performing the review pursuant
to Casiano:
a. Although the precise, narrow issue of whether counsel was performing
sufficiently as an advocate was neither presented to nor decided by the
trial court, the broader question of whether counsel should continue to
represent the defendant was squarely before that court, and, therefore,
the defendant’s claim was reviewable; there was a sufficient record on
which to review the claim, and this court recognized the practical diffi-
culty in requiring the precise claim to be expressly preserved while L
was representing the defendant, which would have required L to have
asserted that he was assuming an improper role and to have criticized
his own conduct during the hearing.
b. L fulfilled his professional obligation to the defendant and acted as
an advocate for him within the dictates of Casiano, pursuant to which
the defendant had a limited statutory right to representation by counsel
in the context of a motion to correct an illegal sentence for the purpose
of determining whether he had a sound basis for filing a motion to
correct and, if such basis existed, for the purpose of preparing and filing
such a motion; L presented a detailed and informed analysis of the
issues that possibly could be pursued by a motion to correct, he raised
and evaluated the issue that formed the basis of the defendant’s written
motion to correct, which claimed that his guilty pleas had been vacated
by his failure to appear for sentencing, and L orally raised three addi-
tional potential claims, which he determined also did not constitute
illegality in the defendant’s sentencing.
2. The trial court properly determined that a sound basis did not exist for
the claims raised in the defendant’s motion to correct an illegal sentence
and properly declined to appoint counsel to argue the merits of that
motion; although the defendant claimed that L neglected to inform the
trial court that the sentencing court had relied on an inaccurate date
concerning a certain letter that the defendant allegedly had sent from
prison prior to sentencing, the record demonstrated that both L and the
trial court clearly had read the entire sentencing transcript, and the
sentencing court, which stated that the defendant had engaged in crimi-
nal behavior while on probation, that he had multiple convictions and
that he was a danger to society, said nothing about the date or timing
of the letter as a factor in determining the sentence, nor was there
evidence in the record that L misstated the facts, or that the trial court
here relied on any fundamentally inaccurate information in determining
that there was no sound basis for the appointment of counsel.
3. The defendant’s unpreserved claim that the trial court erred by not recus-
ing itself from hearing the merits of his motion to correct because it
functionally had predetermined the merits when it found no sound basis
for continuing representation by counsel was unavailing; the defendant
failed to prove actual bias, which was necessary to prove the existence
of a constitutional violation under State v. Golding (213 Conn. 233),
there was no plain error requiring reversal, as the trial judge was not
prohibited from deciding related issues in the same case, and the integ-
rity of the proceedings or the perceived fairness of the judicial system
objectively had not been threatened so as to warrant the invocation of
this court’s supervisory authority.
Argued December 6, 2017—officially released June 19, 2018
Procedural History
Information, in the first case, charging the defendant
with violation of probation, and information, in the sec-
ond case, charging the defendant with two counts of
the crime of possession of narcotics with intent to sell,
and information, in the third case, charging the defen-
dant with the crime of possession of narcotics with
intent to sell, and informations, in the fourth and fifth
cases, charging the defendant with the crime of interfer-
ing with an officer, brought to the Superior Court in
the judicial district of New Haven, geographical area
number twenty-three, where the defendant was pre-
sented to the court Alexander, J., on an admission of
violation of probation and on pleas of guilty; judgments
revoking the defendant’s probation and of guilty in
accordance with the pleas; subsequently, the court,
Clifford, J., denied the defendant’s motion to correct
an illegal sentence, and the defendant appealed to this
court. Affirmed.
Temmy A. Miller, assigned counsel, with whom were
Catherine Spain, assigned counsel, and, on the brief,
Owen R. Firestone, assigned counsel, for the appel-
lant (defendant).
Margaret Gaffney Radionovas, senior assistant
state’s attorney, with whom, on the brief, were Patrick
J. Griffin, state’s attorney, John P. Doyle, Jr., senior
assistant state’s attorney, and Karen A. Roberg, assis-
tant state’s attorney, for the appellee (state).
Opinion
BEACH, J. This case turns on the issue of the appro-
priate role of assigned counsel in the context of a
motion to correct an illegal sentence following State
v. Casiano, 282 Conn. 614, 922 A.2d 1065 (2007). The
defendant, Antuan White, appeals from the judgment
of the trial court denying his motion to correct an illegal
sentence. The defendant claims that the trial court erred
by (1) declining to appoint counsel to represent him
on the merits; (2) denying his motion on the merits;
and (3) deciding the merits of the motion to correct,
despite having previously considered the merits of the
issues during the hearing regarding the appointment of
counsel. We disagree and affirm the judgments of the
trial court.
The following undisputed facts and procedural his-
tory are relevant to our resolution of the defendant’s
claims. They arise primarily from four separate pro-
ceedings: a plea hearing on November 22, 2005, arising
out of five separate criminal dockets; a sentencing pro-
ceeding on December 13, 2006; a hearing on November
25, 2015, to determine whether counsel would be
appointed to represent the defendant; and a hearing on
the merits of the motion to correct, held on January
4, 2016.
On November 22, 2005, the defendant appeared
before the trial court, Alexander, J., and pleaded guilty
to, inter alia, three counts of possession of narcotics
with intent to sell in violation of General Statutes (Rev.
to 2005) § 21a-277 (a). The defendant also admitted
violating his probation in violation of General Statutes
§ 53a-32. The plea agreement was entered into pursuant
to State v. Garvin, 242 Conn. 296, 699 A.2d 921 (1997).1
An agreed upon sentence was stated on the record:
the defendant was to be sentenced to twelve years of
incarceration, suspended after seven years, and a three
year period of conditional discharge. The defendant
also agreed to the express condition that he appear for
sentencing on January 13, 2006. The court advised the
defendant that the guilty pleas were ‘‘permanent’’ and
that the plea agreement was ‘‘off’’ if he didn’t appear
on January 13, and that his failure to appear would
expose him to a sentence of up to fifty-three years. The
defendant affirmed his understanding. The court found
the defendant’s pleas ‘‘to be voluntarily, knowingly
made. There was a factual basis [for the pleas]. [The
defendant] had the assistance of competent counsel.
[His] pleas are accepted and a finding of guilty, finding
of violation of probation is made.’’ The court continued
the matter to January 13, 2006, for sentencing.
The defendant, however, did not appear for sentenc-
ing on January 13, 2006. He was rearrested approxi-
mately seven months later. On December 13, 2006, the
defendant appeared for sentencing before Judge Alex-
ander on the charges to which he had pleaded guilty
on November 22, 2005.
During the sentencing hearing, the state discussed a
letter that the Department of Correction had inter-
cepted. It was allegedly written by the defendant prior
to sentencing. The letter directed its recipient to a loca-
tion where drugs and money could be found. The prose-
cutor stated that the letter was written on
approximately October 31, 2006, several days after the
defendant’s arraignment on his rearrest.
At the sentencing, the court considered the defen-
dant’s ‘‘significant and serious criminal history,’’ which
led the court to conclude that the defendant was ‘‘not
amenable . . . to any form of rehabilitation.’’ The court
then stated: ‘‘I understand the Garvin rule. I understand
the nature of it. I am trying to adhere to what I believe
the guidelines are in there. I know it would give the
court the authority to impose a full maximum of fifty-
three years. . . . [T]hat would be excessive. I recog-
nize that. But I do recognize that this is an egregious
case given the number of times [the defendant] has
been convicted of the sale of narcotics, and his prior
criminal history, and the circumstances that sur-
rounded his being taken into custody for three failures
to appear. As well as what is alleged to be continuing
criminal conduct that [the Department of] Correction
believed worthy to bring to the attention of the state
police in his attempts to reach out into the community
to continue his pattern of narcotics association.’’
(Emphasis added.) The court then sentenced the defen-
dant to a total effective sentence of fifteen years of
incarceration, to be followed by five years of special
parole.
On July 21, 2014, the defendant, representing himself,
filed a motion to correct an illegal sentence. He claimed
that his sentence was unlawful because he had not been
afforded the opportunity to withdraw his pleas after
his failure to appear on January 13, 2006. The defendant
also asked for the appointment of counsel pursuant
to Casiano. Joseph Lopez, an attorney in the public
defender’s office, was appointed, on July 25, 2014, to
represent the defendant for the purpose of the review
mandated by Casiano.
On November 25, 2015, a hearing was held before
the trial court, Clifford, J., to determine whether a
sound basis existed for the appointment of counsel to
prosecute the merits of the defendant’s motion to cor-
rect an illegal sentence. The court stated its understand-
ing of the history of the case and invited Lopez to
comment as to whether the defendant should be
afforded a lawyer to represent him on his motion. Lopez
said: ‘‘Under the Casiano case, when a public defender
is appointed for the limited appearance, it is our rule
to take a look at these, independently look at the claims
to see if there is any sound basis. It’s the one and only
time that I’m aware of where I am not an advocate
for my client, but really have to do an independent
review first. So it is an unusual situation. I just want
my client to understand . . . that that’s what the court
requires me to do.’’ (Emphasis added.)
Lopez then addressed the ground raised in the defen-
dant’s self-represented written motion to correct. He
said that he did not think that the court had jurisdiction
over the defendant’s claim that his guilty pleas had been
voided in their entirety by the defendant’s failure to
appear at the scheduled sentencing proceeding. The
court surmised that perhaps the defendant misunder-
stood the import of Judge Alexander’s telling the defen-
dant during the plea hearing that if he did not appear
for sentencing on January 13, ‘‘then your plea agreement
is off’’; the defendant may have interpreted the court’s
statement to mean that, if he did not appear for sentenc-
ing, he would ‘‘start again’’ because the prior agreement
was ‘‘off.’’ Lopez stated his opinion that this issue did
not meet the jurisdictional requirements of a motion to
correct an illegal sentence.
Lopez then addressed possible claims that had not
been raised in the defendant’s written motion to correct.
Although the record is not clear as to who formulated
these claims, it is clear that they were developed prior to
the hearing either through consultation between Lopez
and the defendant or by Lopez himself. In any event,
Lopez discussed a possible claim that Judge Alexander
had relied on inaccurate information in the course of
the sentencing hearing, to wit, that the state had misrep-
resented the date of the intercepted letter. Lopez opined
that the court had jurisdiction over this claim, but that
the record did not show that Judge Alexander had relied
on the incorrect information in sentencing the defen-
dant. Lopez accordingly expressed his opinion that
there was not a sound basis for this claim.
Lopez also stated his opinion that the court did not
have jurisdiction to consider a claim that Judge Alexan-
der improperly became aware, prior to sentencing, of
an offer of ten years of incarceration, which offer had
been mentioned in the intercepted letter, and that she
was, therefore, prohibited from sentencing the defen-
dant because she had become aware of extraneous
information. Finally, Lopez also stated his opinion that
the court did not have jurisdiction to consider the defen-
dant’s claim that Judge Alexander properly could rely
only on the defendant’s failure to appear in increasing
his sentence. Lopez concluded: ‘‘My opinion, which
doesn’t matter, is that [the defendant] got a heavy sen-
tence, but my job here under . . . Casiano, that’s none
of my—I have no standing. It’s not up to me to decide
sentences. It’s up to me to look [if] there [is] any illegal-
ity in the sentencing and I don’t see it and I tried looking
for something.’’
The court then ruled only on the issue of appointment
of counsel: ‘‘I’m ruling on the Casiano claims right now.
I’m not ruling on the motion substantively.’’ It restated
the opinions of Lopez regarding the soundness of the
defendant’s claims and stated that, having indepen-
dently examined the claims, it agreed that the claims
lacked a sound basis. The court stated: ‘‘So even under
State v. Francis, [148 Conn. App. 565, 86 A.3d 1059
(2014) (Francis I), rev’d, 322 Conn. 247, 140 A.3d 927
(2016)], I certainly think counsel has explained [his]
reasons to you why [he] feel[s] [he] should not be filing
a full appearance . . . after [he] diligently reviewed all
of the relevant parts of the record and case law, and I
agree with [him] under my understanding and research
of the case law also.’’ The court ruled that there was
not a sound basis for continued representation and told
the defendant that he could argue the merits of the
motion himself or retain private counsel.
The defendant attempted to augment his arguments,
and the court and the defendant engaged in a brief
colloquy in which the court said that it disagreed with
the defendant’s claims. Lopez volunteered that if the
defendant thought of new claims, he should include
them in another motion, and a public defender would be
appointed to review those claims to determine whether
there was a sound basis for them. The matter was con-
tinued to January 4, 2016, to allow the defendant time
to review relevant transcripts and to prepare for his
argument on the merits.
On January 4, 2016, the defendant argued the merits
of his motion to correct, again before Judge Clifford.
The defendant did not move for Judge Clifford to recuse
himself from deciding the merits of the defendant’s
claims. The court summarized the November 25, 2015
proceeding, reiterating the defendant’s arguments as
posed at that time by Lopez. The defendant then pre-
sented the court with a letter he had written in which
he set forth his arguments. He argued in the letter that
Judge Alexander had relied on inaccurate information
in the sentencing proceeding. He stressed that the letter
that he had sent in October, 2006, was dated October
25 rather than October 31. The defendant noted that
October 25 predated his arraignment on October 27,
2006, and, therefore, should not have been used as a
basis to enhance his sentence; he suggested that Judge
Alexander had considered that the defendant continued
to engage in criminal conduct, even after his arraign-
ment. The court also reviewed a second letter presented
by the defendant, which argued that, in its application
of Garvin, the sentencing court should not have consid-
ered a police report of an unrelated arrest because there
was nothing in the record to indicate that the report
had minimal indicia of reliability.2
Referring to the topic of the intercepted letter, the
defendant argued orally that the date of the intercepted
letter made a difference because the sentencing court
imputed ‘‘egregious misconduct’’ to him after his
arraignment, although the intercepted letter actually
had been written prior to arraignment.3 The court, how-
ever, noted that the sentencing court had set forth many
reasons for the defendant’s sentence, and that the sen-
tencing court had mentioned the letter only briefly. The
court concluded that it had jurisdiction over this claim
but denied the claim on the merits.
The defendant also argued orally that the sentencing
court improperly considered a police report describing
the defendant’s arrest in August, 2006, because the
report had no indicia of reliability. Assuming that it had
jurisdiction over this claim, the court stated that the
record showed that Judge Alexander did not find that
the defendant had violated the Garvin agreement by
committing another crime. Rather, the court concluded
that the defendant had violated the Garvin agreement
by not appearing at his sentencing hearing in January,
2006. The court explained that his failure to appear
exposed the defendant to fifty-three years of incarcera-
tion. The defendant argued that the sentencing court
could not properly have found a Garvin violation with-
out holding an evidentiary hearing, but the court
observed that the sentencing court properly found a
Garvin violation simply by virtue of the defendant’s
failure to appear at the sentencing hearing. The defen-
dant stated that his failure to appear had not been within
his control, because he had been addicted to drugs. The
court rejected this argument. The court then concluded
that it had jurisdiction over the defendant’s Garvin
claim, but denied the defendant’s motion to correct,
concluding that Judge Alexander had applied Garvin
properly. This appeal followed.
I
The defendant first claims that the trial court erred by
not appointing counsel to represent him on the merits
of his motion to correct an illegal sentence. Specifically,
he claims that reversal is required because the public
defender was acting as a neutral agent of the court
rather than as his advocate in performing the Casiano
review. We disagree.
A defendant does not have a constitutional right to
representation by counsel in the context of a motion
to correct an illegal sentence, but does have a limited
statutory right to counsel. See State v. Francis, 322
Conn. 247, 262–63, 140 A.3d 927 (2016) (Francis II);
see also State v. Casiano, supra, 282 Conn. 620. Section
51-296 (a) of the General Statutes provides in part: ‘‘In
any criminal action . . . the court before which the
matter is pending shall, if it determines after investiga-
tion by the public defender or his office that a defendant
is indigent as defined under this chapter, designate a
public defender, assistant public defender or deputy
assistant public defender to represent such indigent
defendant . . . .’’ In State v. Casiano, supra, 282 Conn.
624, our Supreme Court held that the phrase ‘‘any crimi-
nal action’’ in § 51-296 (a) encompassed a motion to
correct an illegal sentence. The court held, however,
that ‘‘a motion to correct an illegal sentence will not
be appropriate in every case, and, therefore, we do
not believe that the legislature intended for appointed
counsel to be required to file such a motion even if it
is frivolous or improper. . . . [A] defendant has a right
to the appointment of counsel for the purpose of
determining whether a defendant who wishes to file
such a motion has a sound basis for doing so. If
appointed counsel determines that such a basis exists,
the defendant also has the right to the assistance of
such counsel for the purpose of preparing and filing
such a motion and, thereafter, for the purpose of any
direct appeal from the denial of that motion.’’ Id.,
627–28.
In Francis I, this court held that the procedures out-
lined in Anders v. California, 386 U.S. 738, 744, 87 S.
Ct. 1396, 18 L. Ed. 2d 493 (1967), were required to
be followed in determining whether counsel would be
permitted to withdraw after conducting a preliminary
review. Francis I, supra, 148 Conn. App. 588–90. Our
Supreme Court reversed that determination in Francis
II, which was decided after the defendant’s Casiano
hearing in this case. Francis II, supra, 322 Conn. 251.
That court held ‘‘that the Anders procedure is not
strictly required to safeguard the defendant’s statutory
right to counsel in the context of a motion to correct
an illegal sentence.’’ Id. The court then clarified its
holding in Casiano, stating: ‘‘[W]hen an indigent defen-
dant requests that counsel be appointed to represent
him in connection with the filing of a motion to correct
an illegal sentence, the trial court must grant that
request for the purpose of determining whether a sound
basis exists for the motion. . . . If, after consulting
with the defendant and examining the record and rele-
vant law, counsel determines that no sound basis exists
for the defendant to file such a motion, he or she must
inform the court and the defendant of the reasons for
that conclusion, which can be done either in writing or
orally. If the court is persuaded by counsel’s reasoning,
it should permit counsel to withdraw and advise the
defendant of the option of proceeding as a self-repre-
sented party.’’ (Citation omitted; footnote omitted.)
Id. 267–68.
Initially, the state argues that the defendant’s claim
regarding the appointment of counsel should not be
reviewed because it was not raised in the trial court.
The state notes that the defendant did not claim during
either the Casiano hearing or the hearing on the merits
that Lopez failed properly to act as an advocate for
the defendant. The defendant argues, however, that the
claim is viable for several reasons: it is a subset of
the broader claim that there was a sound basis for
continuing the representation by counsel, and, in any
event, it is reversible pursuant to the plain error doc-
trine and the court’s supervisory authority.
In the unique circumstances of this case, we exercise
our discretion to review the claim for the following
reasons. We have a sufficient record on which to con-
sider the claim. Although the precise, narrow issue of
whether counsel was performing sufficiently as an
advocate was neither presented to nor decided by the
trial court, the broader question of whether counsel
should continue to represent the defendant was
squarely before the court. See, e.g., State v. Daniel W.
E., 322 Conn. 593, 609–10 n.8, 142 A.3d 265 (2016); Rowe
v. Superior Court, 289 Conn. 649, 661–63, 960 A.2d
256 (2008). Moreover, at the time, the defendant was
represented by Lopez. In order for Lopez to preserve
the claim, he would have had to assert that he was
assuming an improper role. In this somewhat awkward
circumstance, we recognize the practical difficulty in
requiring that the precise claim be expressly preserved
because counsel, in order to assert the claim, would in
effect have to criticize his own conduct.
The defendant argues that Lopez’ statement that he
was not acting as an advocate for the defendant was
fatal to the integrity of the proceeding. He claims that
the requirement in Francis I that counsel act as ‘‘an
active and conscientious advocate’’ in conducting a
‘‘first tier’’ review required Lopez to function as the
defendant’s counselor and legal representative rather
than as a neutral officer of the court. He contrasts this
duty with the language used by Lopez in introducing
his remarks; Lopez said that, in this instance, he was
performing an independent review and not acting as
an advocate. The defendant also notes, correctly, that
Francis II did not overrule the requirement of Francis
I that appointed counsel represent the client.
The flaw in the defendant’s position is that the record
reveals that, despite the label he employed, Lopez actu-
ally acted as an advocate for the defendant within the
dictates of Casiano and Francis II. Lopez was
appointed to represent the defendant on July 25, 2014.
At the hearing on November 25, 2015, at which he said
that he was not advocating for his client, he presented
a detailed and informed analysis of the issues that possi-
bly could be pursued by a motion to correct. Not only
did he raise and evaluate the issue that formed the basis
of the defendant’s written motion to correct, which
claimed that the guilty pleas had been vacated by his
failure to appear for sentencing, but he also orally raised
the three additional claims. We infer from the record
that Lopez conferred with his client regarding these
claims; he clearly conferred with the defendant during
the hearing. Throughout the proceeding, Lopez also
referred to specific pages of transcripts of prior pro-
ceedings. Lopez stated that ‘‘my job here under Casiano
[is] to look [at whether there was] any illegality in the
sentencing and I don’t see it and I tried looking for
something.’’ (Emphasis added.)
It is instructive to compare what Lopez actually did
with the standards set forth in Francis II, in which
our Supreme Court concluded that ‘‘when an indigent
defendant requests that counsel be appointed to repre-
sent him in connection with the filing of a motion to
correct an illegal sentence, the trial court must grant
that request for the purpose of determining whether a
sound basis exists for the motion. . . . If, after con-
sulting with the defendant and examining the record
and relevant law, counsel determines that no sound
basis exists for the defendant to file such a motion, he
or she must inform the court and the defendant of the
reasons for that conclusion . . . . If the court is per-
suaded by counsel’s reasoning, it should permit counsel
to withdraw and advise the defendant of the option
of proceeding as a self-represented party.’’ (Citation
omitted; emphasis added; footnote omitted.) Francis
II, supra, 322 Conn. 267–68.
Lopez quite plainly performed his duties as required,
professionally and with candor to the court. Lopez’ apol-
ogy to his client—for not advocating his client’s ultimate
position that counsel should not be permitted to with-
draw—is understandable in light of the somewhat
dichotomous role of counsel who are appointed pursu-
ant to Casiano. Perhaps the role can best be described
by requiring traditional standards of advocacy in the
preparatory stage, including thorough legal and factual
review of the record with an eye to developing a plausi-
ble favorable position, but also requiring objective can-
dor in presenting the client’s best claims to the court
and his client. A client may well not be pleased by his
attorney’s presentation of a negative appraisal, but this
tension results from the dual nature of the role required
by Casiano and Francis II. On the record before us,
we hold that counsel fulfilled his professional obligation
as set forth by our Supreme Court in Francis II. Accord-
ingly, the defendant’s claim that the trial court erred
by failing to appoint counsel to argue his motion to
correct fails.
II
We next briefly consider the defendant’s arguments
that the trial court improperly determined that a sound
basis did not exist for the defendant’s claims so that
counsel should be appointed. The defendant argues that
Lopez neglected to bring to Judge Clifford’s attention a
reference in the sentencing transcript to the inaccurate
date ascribed to the intercepted letter, and that both
Lopez and Judge Clifford therefore relied on inaccurate
information in failing to find a sound basis for continued
representation by counsel. Both Lopez and Judge Clif-
ford, however, quite clearly read the entire sentencing
transcript. As to the possibility of reliance on inaccurate
information, the sentencing court, in its recitation of
reasons for imposing its sentence, stated that the defen-
dant had engaged in criminal behavior while on proba-
tion, that he had multiple convictions, and that he was
a danger to society. The sentencing court said he had
no respect for the court system. The sentencing court
added a reference to the ‘‘alleged . . . continuing crim-
inal conduct that [the Department of] Correction
believed worthy to bring to the attention of the state
police in his attempts to reach out into the community
to continue in his pattern of narcotics association.§ The
sentencing court said nothing about the date or timing
of the letter in which the defendant urged further crimi-
nal activity.
In the ‘‘sound basis’’ hearing before Judge Clifford,
Lopez summarized the comments of the sentencing
court and, as to this issue, concluded by saying, ‘‘I
don’t think that we have any basis to claim that Judge
Alexander may have [homed] in on an inaccurate date
and used that in fashioning her sentence.’’ (Emphasis
added.) Agreeing with Lopez in principle, Judge Clif-
ford, perhaps somewhat mistakenly, said that when
Judge Alexander stated the factors she considered in
sentencing, she did not mention the letter. It is, of
course, true that she did not mention the date of the
intercepted letter. Although perhaps there was some
lack of precision, it is clear that nothing in the record
indicates that the sentencing court relied on the date
of the letter, that Lopez misstated the facts, or that
Judge Clifford relied on any fundamentally inaccu-
rate information.4
Additionally, the defendant briefly claims that Judge
Clifford merely ‘‘rubber-stamped’’ Lopez’ opinions and
did not reach his own conclusions. This argument is
contradicted by the hearing transcript, which shows
that Judge Clifford addressed each of the defendant’s
claims in turn and stated his reasoning for finding no
sound basis. As noted previously, Judge Clifford was
not required to conduct a full evidentiary review at that
time; rather, at that point the court was to decide only
whether it was persuaded by Lopez’ reasoning after
independent review. Francis II, supra, 322 Conn. 268.5
After considering Lopez’ presentation and after its inde-
pendent review, the court concluded that there was not
a sound basis.
We conclude that the court did not err in its decision
regarding the appointment of counsel.
III
The defendant claims that the court erred by not
recusing itself from hearing the merits because it func-
tionally had predetermined the merits when it found
no sound basis for continuing representation by coun-
sel. We disagree.
The issue was not raised, and thus not preserved, in
the trial court. The defendant does not argue that it
was preserved, but rather asks us to reverse under State
v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), the plain
error doctrine, or this court’s supervisory authority.
We conclude that this claim does not merit reversal
under Golding.6 In order to prove a constitutional viola-
tion, a litigant must prove actual bias. State v. Canales,
281 Conn. 572, 593–95, 916 A.2d 767 (2007). The record
reveals no hint of actual bias or, objectively, the appear-
ance of bias, and none is suggested by the defendant.
The defendant’s claim fails the third prong of Golding
because the claimed constitutional violation does not
exist.
There is no plain error7 requiring reversal because
‘‘opinions that judges may form as a result of what they
learn in earlier proceedings in the same case ‘rarely’
constitute the type of bias, or appearance of bias, that
requires recusal.’’ State v. Rizzo, 303 Conn. 71, 121, 31
A.3d 1094 (2011), cert. denied, 568 U.S. 836, 133 S. Ct.
133, 184 L. Ed. 2d 64 (2012). A judge is not prohibited
from deciding related issues in the same case. See id.,
119–21. Additionally, we decline to exercise our supervi-
sory authority; the integrity of the proceedings or the
perceived fairness of the judicial system objectively has
not been threatened. See State v. Elson, 311 Conn. 726,
764–65, 91 A.3d 862 (2014).
The judgments are 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.’’ (Internal quotation marks
omitted.) State v. Yates, 169 Conn. App. 383, 387 n.1, 150 A.3d 1154 (2016),
cert. denied, 324 Conn. 920, 157 A.3d 85 (2017).
2
Both letters apparently served the purpose of trial memoranda.
3
The underlying premise seems to be that a letter urging further criminal
conduct would display contempt for the judicial authority if written after,
but not before, arraignment.
4
Additionally, we fail to see how any discrepancy of four days in the date
the letter was written could possibly have affected the sentence, regardless
of whether the letter was written before or after the arraignment.
5
The defendant also argues in his brief that both Lopez and the trial court
applied an erroneous standard, claiming that the standard should be whether
the claim is ‘‘nonfrivolous.’’ This claim was not preserved, is not of constitu-
tional dimension and does not result in any manifest injustice. The relevant
case law uses the term ‘‘sound basis,’’ and all participants in the trial court
referred to ‘‘sound basis.’’ We decline to review the unpreserved claim.
6
‘‘[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 . . . exists and . . . 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.’’ (Emphasis omitted; footnote omitted.) State v. Golding,
supra, 213 Conn. 239–40, as modified by In re Yasiel R., 317 Conn. 773, 781,
120 A.3d 1188 (2015).
7
‘‘[An appellant] cannot prevail under [the plain error doctrine] . . .
unless he demonstrates that the claimed error is both so clear and so harmful
that a failure to reverse the judgment would result in manifest injustice.’’
(Emphasis omitted; internal quotation marks omitted.) State v. McClain,
324 Conn. 802, 812, 155 A.3d 209 (2017).