State v. Myers

963 A.2d 11

290 Conn. 278

STATE of Connecticut v. Kenneth MYERS.

No. 17925.

Supreme Court of Connecticut.

Argued October 21, 2008.

Decided February 3, 2009.

James M. Ralls, assistant state's attorney, with whom, on the brief, were Stephen Sedensky III, senior assistant state's attorney, and Walter Flanagan, state's attorney, for the appellant (state).

Alice Osedach, assistant public defender, for the appellee (defendant).

NORCOTT, KATZ, VERTEFEUILLE, ZARELLA and SCHALLER, Js.

ZARELLA, J.

The sole issue in this certified appeal is whether the Appellate Court properly concluded that the trial court committed plain error when it sentenced the defendant, Kenneth Myers, as a repeat offender. The state appeals from the judgment of the Appellate Court, which vacated the defendant's sentence on the ground that the trial court committed plain error when it sentenced the defendant as a repeat offender under General Statutes § 21a-277(a)¹ without first obtaining a plea from the defendant and, if necessary, conducting a trial on the issue as Practice Book § 42-2² requires. The state claims that it was not plain error for the trial court to forgo a "part B" trial under the factual and procedural circumstances of this case. We agree with the state and, accordingly, reverse in part the judgment of the Appellate Court.

The following undisputed facts and procedural history are relevant to this appeal. On June 18, 2004, the defendant was arrested in the city of Danbury for operating a motor vehicle with a suspended driver's license. The passenger in his vehicle, Susan Curtis, also was taken into custody pursuant to an outstanding arrest warrant stemming from her failure to appear for a motor vehicle case in 1997. Subsequently, Curtis revealed to police that the defendant had given her a quantity of illegal narcotics to conceal when they were stopped by police. After a search of her person, the police recovered a package containing fourteen small bags that subsequently were determined to contain powdered and crack cocaine.

On the basis of these facts, the defendant was charged in the first part of a two part information with possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278(b), possession of narcotics with intent to sell in violation of § 21a-277(a), possession of narcotics with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a(b), and possession of narcotics in violation of General Statutes § 21a-279(a). Prior to trial, the defendant was advised that the state also had charged him in the second part of the information (part B), seeking an enhanced sentence for his alleged violation of the repeat offender provisions of § 21a-277(a).³

In a separate information, the state charged the defendant with a violation of probation. See General Statutes § 53a-32.⁴ During the course of the trial on the narcotics charges, the court held a violation of probation hearing outside the presence of the jury. At the hearing, the state offered into evidence a certified copy of an information and a conviction dated February 27, 2003, for the defendant's previous violation of § 21a-277(a). The state asked the court to take judicial notice of the conviction, and defense counsel expressed no objection to the request. The certified copy of the conviction was accepted as a full exhibit. The state also presented testimony from Rolanda Mitchell, a supervising probation officer with the office of adult probation, who identified the defendant in court and testified that she had supervised him during a term of probation that he had served in connection with his 2003 conviction. The defendant offered no evidence to rebut the existence of the conviction, nor did defense counsel challenge Mitchell's identification of the defendant as the individual whom she had been supervising in connection with the 2003 conviction. At the close of the violation of probation hearing, the court decided to reserve decision on the violation of probation charge.

Following a jury trial on the narcotics charges, the jury found the defendant guilty of all but the first count. In addition, the court found the defendant guilty of violating the terms of his probation stemming from his prior conviction. After the jury was excused, the senior assistant state's attorney (state's attorney) raised the issue of part B of the information, stating: "I would note, Your Honor, that, in [this case], there is a part B of [the] information, and it's my understanding that defense counsel wishes to waive a jury on that and have a court trial." Defense counsel responded: "I'm waiving a jury. I'm not sure that it's appropriate to even have a part B in this case. . . . [T]he statute . . . does provide a specific penalty range for . . . a second offense, but I don't see . . . where it requires a part B. I think that's a sentencing discretion. It's up to the judge, and it will come up in the [presentencing investigation report]." The court responded that it was "already aware . . . that [the defendant] has a prior conviction." The state's attorney expressed concern that the prior conviction alleged in part B of the information, on which the state based its argument for a sentencing enhancement, "does require a finding by a fact finder." The state's attorney continued: "I guess the concern is I don't want this then to be an issue on appeal. But as long as defense counsel [is] fine with it, and the defendant is fine with [defense counsel's] decision and interpretation of the law, that's fine with me." At that point, defense counsel reiterated her desire to have the matter handled at the sentencing hearing. Finally, at the close of the proceeding, the state once again sought to confirm defense counsel's position with respect to the disposition of part B: "I would also note that defense counsel is waiving a part B of the information, determining that it is not necessary for the sentence of up to thirty years."⁵ The court asked defense counsel if that was "a fair statement," to which she responded affirmatively.

After the jury returned its verdict on the narcotics charges, the court found the defendant guilty of violating his probation on the basis of the evidence presented at the trial and at the violation of probation hearing. The court deferred sentencing on the violation of probation charge, however, so that it could review the presentencing investigation report and sentence the defendant on all charges after a full hearing. Ultimately, the court imposed an effective sentence of thirty years imprisonment, suspended after thirteen years, and five years probation.

The defendant appealed from the judgment of conviction on several grounds, and the Appellate Court rejected all but one of the defendant's claims.⁶ See State v. Myers, 101 Conn.App. 167, 168-69, 921 A.2d 640 (2007). Noting that this claim was unpreserved, the Appellate Court, invoking the plain error doctrine, nonetheless vacated the defendant's sentence and remanded the case for a hearing on part B of the information and resentencing. Id., at 186, 921 A.2d 640. The court concluded that the trial court's failure to "put the defendant to plea to accord him a hearing regarding his jeopardy as a repeat offender and to make a finding regarding his status as a repeat offender" in accordance with Practice Book § 42-2 constituted plain error, and that "it would be an injustice for [the] court not to afford the defendant relief on the ground that he failed to preserve his claim." Id. The Appellate Court's ruling appears to be based on its conclusion that "[a] court commits plain error when it fails to implement properly the mandatory provisions of clearly applicable rules of practice." Id., at 185, 921 A.2d 640. We thereafter granted the state's petition for certification to appeal, limited to the following issue: "Did the Appellate Court properly conclude that the court committed plain error when it sentenced the defendant as a repeat offender?" State v. Myers, 283 Conn. 906, 927 A.2d 919 (2007).

On appeal to this court, the state claims that the Appellate Court improperly concluded that the trial court had committed plain error. The state's brief focuses on whether it was plain error to allow defense counsel to waive a trial on part B of the information, and whether it was plain error to forgo a part B trial when the defendant already had been adjudicated a repeat offender on the basis of evidence presented at the violation of probation hearing. The defendant responds by asserting that the trial court's failure to comply with Practice Book § 42-2 affected the fairness and integrity of the proceedings to such an extent that his due process rights were implicated and that reversal under the plain error doctrine is the proper remedy. The defendant also argues that defense counsel's waiver of a trial on part B of the information and stipulation to the defendant's prior conviction were equivalent to an unconstitutional guilty plea under Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).⁷ In our view, the failure of the trial court in this case to comply strictly with Practice Book § 42-2 "does not constitute one of the truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." (Internal quotation marks omitted.) State v. Fagan, 280 Conn. 69, 87, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S.Ct. 1491, 167 L.Ed.2d 236 (2007). Thus, we agree with the state that the trial court's actions did not warrant application of the plain error doctrine, and, therefore, we reverse in part the judgment of the Appellate Court.

We begin our discussion by setting forth the appropriate standard of review. We previously have indicated that we apply an abuse of discretion standard to the...