State v. Gregorio

137 Conn.App. 104

46 A.3d 1033

STATE of Connecticut

v.Gender Ramos GREGORIO.

No. 32441.

Appellate Court of Connecticut.

Argued April 18, 2012.

Decided July 24, 2012.

Susan M. Hankins, for the appellant (defendant).

Bruce R. Lockwood, senior assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and David Holzbach, senior assistant state's attorney, for the appellee (state).

LAVINE, ROBINSON and PELLEGRINO, Js.

LAVINE, J.

“The imposition of an appropriate sentence is the function of the court regardless of the bargain of the parties. Plea agreements stem from the desire of the state to obtain a prompt disposition of criminal charges with the certainty of conviction, and from the agreement of the defendant to exchange his constitutional right to a trial, with all of its constitutional safeguards, for the certainty of a known and reduced penalty. The defendant is engaged in barter for the length of his incarceration.... The term of imprisonment is a defendant's ‘bottom line’ and his paramount interest. The length of time a defendant must spend incarcerated is clearly crucial to a decision involving whether he should plead guilty.... When the defendant's reasonable expectation that his sentence will not exceed a particular term is to be defeated because of the trial court's decision, in the proper exercise of its discretion, that a sentence in excess of an agreed term is appropriate, the defendant must be given the opportunity by the trial court to withdraw his plea.” (Citations omitted.) State v. Schaeffer, 5 Conn.App. 378, 390–91, 498 A.2d 134 (1985). When a defendant is permitted to withdraw his plea under such circumstances, he is “returned to precisely the same position he had occupied before entering the plea.” State v. Thomas, 296 Conn. 375, 396, 995 A.2d 65 (2010).

In this interlocutory appeal, the defendant, Gender Ramos Gregorio, appeals from the trial court's denial of his motion to dismiss the charges pending against him after the court declined to sentence him pursuant to a plea agreement under which he would serve no time in prison (no jail plea). On appeal, the defendant claims that the court violated (1) his constitutional rights to due process and the protection against double jeopardy and (2) Practice Book § 39–9 when it failed to sentence him in accordance with the no jail plea agreement and denied his motion to dismiss the charges against him. The defendant's claims are controlled by our Supreme Court's decision in State v. Thomas, supra, 296 Conn. 375, 995 A.2d 65.¹ We affirm the judgment of the trial court.

The record discloses the following relevant facts and procedural history. At the defendant's plea hearing, the prosecutor made the following representation of facts to the court, Matasavage, J. At approximately 3:42 a.m. on July 13, 2008, Danbury police officers were dispatched to the intersection of Balmforth Avenue and North Street in response to a report of a hit and run motor vehicle accident. When they arrived at the scene, the officers found a motorcyclist, Christopher Grasso, suffering from serious injuries. Another motorcyclist, Robert Prescott, informed the officers that he and Grasso were traveling in the left lane of Balmforth Avenue when a Volkswagen traveling in the right lane passed them at a high rate of speed. The Volkswagen continued until it reached the intersection of North Street. When the Volkswagen reached the intersection and began to turn right, Grasso's motorcycle came in contact with the left side of the Volkswagen. Grasso was thrown seventy feet from the point of contact, and the operator of the Volkswagen left the scene without stopping.

Lawrence Anderson witnessed the incident. He informed the officers that he saw the Volkswagen fishtail into one of the motorcycles for no apparent reason.

The police officers broadcast information about the Volkswagen to other police departments, and Grasso's friends used the Internet to disseminate a description of the vehicle. One of Grasso's friends saw a vehicle matching the description of the Volkswagen with damage to the rear quarter panel in Bethel. Approximately eight hours after the collision, Bethel police officers confronted the owner of the Volkswagen. The owner provided no information to the officers until he was informed that he was going to be arrested. The owner then informed the police that the defendant had been operating his Volkswagen the night before. The defendant came forward, and the police took him into custody.²

The defendant was charged with assault in the first degree in violation of General Statutes § 53a–59, evading responsibility in an accident causing serious physical injury in violation of General Statutes § 14–224(a), reckless driving in violation of General Statutes § 14–222 and operating a motor vehicle without an operator's license in violation of General Statutes § 14–36(a). The defendant entered pro forma not guilty pleas to all charges.

The case was continued many times and pretried on more than one occasion before the court, Reynolds, J. As a result of the plea negotiations, the state offered to let the defendant plead guilty to evading responsibility in an accident involving serious injuries in return for a sentence of ten years in prison, suspended after two years served, and five years of probation. Judge Reynolds indicated that she would not require “jail time” and would impose a suspended sentence.³ The matter was continued for a plea hearing. Judge Reynolds, however, was unavailable to take the defendant's plea of nolo contendere, so the defendant appeared before Judge Matasavage on July 17, 2009. After canvassing the defendant and finding that his plea of nolo contendere was made knowingly and understandably with the assistance of competent counsel, Judge Matasavage ordered a presentence investigation and continued the matter for sentencing before Judge Reynolds.

The defendant appeared before Judge Reynolds for sentencing on October 2, 2009. At that time, the court had reviewed the presentence investigation report and found aggravating circumstances that she had not known of, or fully appreciated, previously.⁴ Judge Reynolds stated in part: “[T]he [presentence investigation report] has revealed to me facts that either I misunderstood or that I did not have at the time that I made the offer.” (Emphasis added.) Due to the new information in the report, the court withdrew the no jail plea offer. The court extended a new plea offer of ten years in prison, execution suspended after six months, and five years of probation (six month plea). The court continued the case, affording the defendant an opportunity to consider whether to accept the six month plea offer or to withdraw his plea of nolo contendere.

On March 10, 2010, defense counsel informed Judge Reynolds that the defendant would neither accept the court's six month plea offer nor would he withdraw his plea of nolo contendere. Thereafter, the court withdrew its six month plea offer, vacated the defendant's plea of nolo contendere, reinstated his not guilty pleas and placed the matter back on the jury trial docket. The defendant then filed a motion to dismiss the charges against him, claiming that the court had violated his constitutional rights to due process and protection against double jeopardy. The court denied the motion to dismiss in an oral decision on May 21, 2010, citing State v. Thomas, supra, 296 Conn. 375, 995 A.2d 65, as the controlling authority. The defendant appealed. ⁵ Additional facts will be set forth as necessary.

I

As a preliminary matter, because the defendant is appealing from the denial of a motion to dismiss, which ordinarily is not reviewable; see, e.g., State v. Jutras, 121 Conn.App. 756, 756–57, 996 A.2d 1212, cert. denied, 298 Conn. 917, 4 A.3d 1230 (2010); we must determine whether the appeal is properly before us. See State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983) (judgment in criminal matter ordinarily is imposition of sentence). “It is axiomatic that appellate jurisdiction is limited to final judgments of the trial court.... [T]here is a small class of cases [however] that meets the test of being effectively unreviewable on appeal from a final judgment and therefore, is subject to interlocutory review. The paradigmatic case in this group involves the right against double jeopardy.... Because jeopardy attaches at the commencement of trial, to be vindicated at all, a colorable double jeopardy claim must be addressed by way of interlocutory review. The right not to be tried necessarily falls into the category of rights that can be enjoyed only if vindicated prior to trial, and, consequently, [ is reviewable in an interlocutory appeal ]....” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Crawford, 257 Conn. 769, 774–75, 778 A.2d 947 (2001), cert. denied, 534 U.S. 1138, 122 S.Ct. 1086, 151 L.Ed.2d 985 (2002).

In this case, the defendant claims that the court violated the constitutional prohibition against double jeopardy by vacating his guilty plea, scheduling the matter for trial and denying his motion to dismiss. This appeal therefore falls squarely within the small class of claims reviewable in an interlocutory appeal; see State v. Thomas, supra, 296 Conn. at 382, 995 A.2d 65; and is properly before us.

II

We next set forth the applicable standard of review. “A criminal defendant may raise the defense that a [p]revious prosecution bar[s] the present prosecution in a motion to dismiss. Practice Book § 41–8(6).” (Internal quotation marks omitted.) State v. Thomas, supra, 296 Conn. at 383, 995 A.2d 65. A motion to dismiss effectively challenges the jurisdiction of the court. Id. “The standard of review to determine whether the defendant's constitutional right against double jeopardy was violated is de novo because it is a question of law.... The factual findings of the court that determine...