State v. D'ANTONIO

274 Conn. 658

877 A.2d 696

STATE OF CONNECTICUT v. LOUIS D'ANTONIO.

(SC 17096), (SC 17095).

Supreme Court of Connecticut.

Argued March 15, 2005.

Officially released August 2, 2005.

Sullivan, C. J., and Borden, Norcott, Katz, Palmer, Vertefeuille and Zarella, Js.¹

Ronald G. Weller, assistant state's attorney, with whom, on the brief, were Timothy J. Liston, state's attorney, Barbara Hoffman, senior assistant state's attorney, and George Ferko, former senior assistant state's attorney, for the appellant (state).

Adele V. Patterson, assistant public defender, for the appellee (defendant).

Opinion

NORCOTT, J.

This court, in State v. Niblack, 220 Conn. 270, 280, 596 A.2d 407 (1991), approved of a procedure whereby a trial court may participate in the negotiation of a plea agreement between the state and a defendant, so long as a different judge presides at trial and sentencing if the negotiations are unsuccessful (Niblack rule). The principal issue in these certified appeals is whether the Appellate Court properly concluded that violation of the Niblack rule is, by itself, plain error that requires reversal of a defendant's conviction, without regard to the facts and circumstances of a particular case. The state appeals, upon our granting of its petitions for certification,² from the judgments of the Appellate Court reversing the judgments of the trial court, which: (1) found the defendant, Louis D'Antonio, to be in violation of his probation pursuant to General Statutes § 53a-32; State v. D'Antonio, 79 Conn. App. 683, 691, 830 A.2d 1187 (2003) (D'Antonio I); and (2) convicted the defendant after a jury trial of criminal trespass in the first degree in violation of General Statutes § 53a-107 (a) (1), and two counts of interfering with an officer in violation of General Statutes § 53a-167a (a). State v. D'Antonio, 79 Conn. App. 696, 830 A.2d 1196 (2003) (D'Antonio II). We conclude that, under the facts and circumstances of this case, the trial court's presiding at the hearing, trial and sentencing of the defendant after it had participated in plea negotiations, although improper, was not plain error requiring reversal. Accordingly, we reverse the judgments of the Appellate Court.

The records and the Appellate Court decisions reveal the following facts and procedural history. "On October 24, 2000, the defendant, through his public defender, pleaded nolo contendere to two separate charges of operating under the influence on two separate occasions in violation of General Statutes § 14-227a and was sentenced by the court [Clifford, J.] to a total effective term of thirty months of imprisonment, execution suspended after twenty-four months, and one year of probation with special conditions.³ The special conditions of the defendant's probation were the same with respect to both violations and included, inter alia, substance abuse screening, evaluation and treatment as recommended by the probation officer, a total of 200 hours of community service and no operation of a motor vehicle while the defendant's operator's license was under suspension.

"On or about October 4, 2001, the defendant was released from prison and began serving his probation. After the defendant refused to participate in an alcohol treatment program, his probation officer applied for arrest warrants for violation of probation on December 10, 2001. On December 11, 2001, the defendant was arraigned on two criminal matters, criminal trespass in the first degree and interfering with an officer, respectively, and the court appointed a public defender as his counsel. On December 18, 2001, the defendant was arraigned on the violation of probation matters and denials were entered. At that time, the court appointed the public defender who was handling the defendant's criminal matters to represent him in the violation of probation matters. Thereafter, the court held several scheduled proceedings, often involving both the criminal and the violation of probation matters.

"On January 15, 2002, the defendant appeared in court with his counsel and indicated that he wanted to represent himself. The court [Gordon, J.] told the defendant that before allowing him to represent himself, it was going to order a competency examination. On February 27, 2002, when the defendant appeared in court with his counsel, the court, Fischer, J., made an uncontested finding of competency based on the competency report in the file. Again, the defendant raised the issue of self-representation. The court, Fischer, J., allowed the defendant's counsel to withdraw from the violation of probation and criminal cases, and, on the same date, the defendant filed a pro se appearance in those cases. On March 20, 2002, the court, Clifford, J., the prosecutor and the defendant engaged in an on the record plea discussion. The defendant refused any offered plea bargain and insisted on exercising his `right for a trial.'⁴

"On April 3, 2002, the defendant again appeared before Judge Clifford for the violation of probation hearing. Although Judge Clifford recalled having some discussion with the defendant previously in the case, he proceeded to canvass the defendant on the issue of self-representation and advised the defendant of, inter alia, the state's burden of proof in the case and the defendant's various constitutional rights. The defendant indicated that he was `prepared to continue' and to `go forward,' and there was no mention by anyone of Judge Clifford's recusal. Thereafter, the hearing commenced and concluded, and Judge Clifford found that the defendant did violate a condition of his probation and that the beneficial aspects of probation were no longer being served. Judge Clifford sentenced the defendant to the remaining six months of imprisonment previously suspended on the sentence for the underlying motor vehicle offenses." D'Antonio I, supra, 79 Conn. App. 685-89. Additional facts concerning the violation of probation hearing will be discussed in part I C of this opinion.

"At the conclusion of the sentencing phase of the violation of probation hearing, there was a brief on the record discussion of the defendant's pending criminal trespass and interfering cases. Judge Clifford again briefly canvassed the defendant on the issue of selfrepresentation and appointed standby counsel to assist the defendant in the trial of the charges of criminal trespass in the first degree and interfering with an officer. On June 10, 2002, Judge Clifford granted the state's motion to consolidate those cases for trial. On the same date, during a discussion about whether Judge Clifford had signed an arrest warrant in the case, Judge Clifford asked the defendant, `Do you have a problem with me sitting on [this case?]' The defendant responded that he had `[n]o objection.'

"Thereafter, following jury selection on June 12, 2002, the case proceeded to trial before Judge Clifford on June 12, 13, 14 and 18, 2002. During trial, there was no mention by anyone of Judge Clifford's recusal. On June 18, 2002, the jury returned a guilty verdict on one count of criminal trespass in the first degree in violation of § 53a-107 (a) (1) and two counts of interfering with an officer in violation of § 53a-167a (a). Judge Clifford then sentenced the defendant to a total effective term of two years imprisonment, execution suspended after twenty months, with three years of probation." D'Antonio II, supra, 79 Conn. App. 702-703. Additional facts concerning the criminal jury trial will be discussed in part I D of this opinion.

The defendant filed timely appeals to the Appellate Court from the judgments of the trial court with respect to the judgments of conviction and probation violation. The Appellate Court reversed the judgments in the cases in two separate opinions, concluding that, notwithstanding the defendant's failure to move for recusal at trial, it was plain error for Judge Clifford to preside over the probation violation hearing and criminal trial after having participated in plea bargaining on the same charges on March 20, 2002, in violation of the Niblack rule. D'Antonio I, supra, 79 Conn. App. 693-94; D'Antonio II, supra, 79 Conn. App. 707. The Appellate Court relied on its decisions in State v. Falcon, 68 Conn. App. 884, 793 A.2d 274, cert. denied, 260 Conn. 924, 797 A.2d 521 (2002), and State v. Washington, 39 Conn. App. 175, 664 A.2d 1153 (1995), and reasoned that a new hearing and a new trial were required because "the existence of impartiality might reasonably be questioned and the fairness and integrity of and public confidence in the judicial proceeding affected when a court presides over the violation of probation hearing after having participated actively in plea negotiations. In this case, the appearance of a fair trial has been lost and a new revocation of probation hearing is warranted." D'Antonio I, supra, 696; see also D'Antonio II, supra, 710 (same conclusion for trial and sentencing in criminal matter). Thereafter, we granted the state's petitions for certification; see footnote 2 of this opinion; and these appeals followed.

On appeal, the state claims that the Appellate Court improperly reversed the judgments of the trial court on the basis of plain error because: (1) the defendant's claims with respect to the trial court's failure to recuse itself are unreviewable because he waived them by failing to raise them pursuant to General Statutes § 51-39 (c)⁵ before the trial court in a Practice Book § 1-23⁶ disqualification motion; and (2) the records in both the probation violation and criminal proceedings demonstrate that there was no actual bias on the part of the trial court, and that the impropriety was harmless because it did not affect the results of the proceedings. In response, the defendant argues that the Appellate Court properly: (1) reviewed the proceedings for plain error because "judicial neutrality is a core value of our judicial system"; and (2) concluded that it was plain error for ...