State v. Redmond

177 Conn.App. 129

171 A.3d 1052

STATE of Connecticut

v.Patrick S. REDMOND

AC 39725

Appellate Court of Connecticut.

Argued January 17, 2017

Officially released October 10, 2017

Mitchell Lake, for the plaintiff in error.

James A. Killen, senior assistant state's attorney, with whom, on the brief, was David S. Shepack, state's attorney, for the defendant in error.

Keller, Prescott and Harper, Js.

HARPER, J.

This case comes before the court on a writ of error brought by the plaintiff in error, Patrick C. Redmond, who is the father of Patrick S. Redmond, the defendant in the underlying criminal proceeding.¹ In his writ of error, Redmond alleges that the trial court improperly (1) ordered the forfeiture of certain seized property pursuant to General Statutes § 54–36a and (2) entered its forfeiture order without providing him notice and an opportunity to be heard in violation of the in rem forfeiture procedures set forth in General Statutes (Rev. to 2013) § 54–33g.² For the reasons that follow, we disagree and dismiss the writ of error.³

The following relevant facts and procedural history are apparent on the record.⁴

This writ of error concerns sixteen firearms,⁵ at least one magazine, and an unknown quantity of ammunition that were seized by the police on February 13, 2013, pursuant to a valid search warrant issued in the course of a narcotics investigation.⁶ That investigation revealed that the defendant was selling drugs from a residence owned by Redmond, and occupied by both Redmond and the defendant. The residence was not subdivided, and Redmond and the defendant had equal access to all areas of the residence.

During their search of the residence, the police found nine of the sixteen firearms "scattered about the living quarters, hidden in the seat cushions, in a dresser, leaned up against the walls," hidden under a couch in the living room, as well as in the defendant's bedroom. The remaining seven weapons were found in a safe on the second floor of the residence, which the defendant opened using a key in order to surrender the weapons to the police. Alongside these weapons, the police also seized various narcotics and narcotics paraphernalia. Redmond was not present for the search of the residence.

Later that day, the defendant was arrested. After receiving Miranda⁷ warnings, the defendant provided the police with a sworn statement in which he admitted his ownership of many of the seized weapons, and asserted that Redmond consented to his possession and use of the remaining weapons. The defendant also told the police that Redmond knew that he was selling narcotics from the residence and had previously asked him to cease doing so. Nothing in the record suggests that Redmond took steps to limit the defendant's access to the weapons.

The defendant thereafter was charged with eight counts of drug and weapon offenses,⁸ for which he faced a significant term of imprisonment if convicted. Over the next four months, the defendant engaged in plea negotiations with the state in which the court, Ginocchio, J., actively participated. During those negotiations, the defendant was represented by Attorney Anthony F. DiPentima. At that time, DiPentima also provided counsel to Redmond, though Redmond was not a party to the criminal action.⁹ Redmond's awareness of both the plea negotiations and the contemplated forfeiture of the weapons was made clear to the court and the state through DiPentima, and it appears that Redmond was present for at least some of those negotiations. From the outset, the plea negotiations involved leveraging the disposition of the seized property to obtain a more favorable disposition of the charges against the defendant.

On March 18, 2013, Redmond executed an affidavit, witnessed by DiPentima in his capacity as a commissioner of the Superior Court, claiming ownership of the seized weapons, ammunition, and magazine. This affidavit, however, was never submitted to the court or the state. The prosecutor also indicated that the agreement to surrender all of the disputed property in return for favorable treatment was suggested by DiPentima.

On May 31, 2013, the state agreed to nolle six of the eight charges against the defendant. In return, the defendant agreed to (1) forfeit the seized property to the state for destruction; (2) plead guilty to one count of possession with intent to sell in violation of General Statutes § 21a–277(b) ; and (3) enter an Alford plea¹⁰ to one count of illegal transfer of a pistol or revolver in violation of General Statutes (Rev. to 2013) § 29–33.¹¹ At that time, the terms of the plea agreement were put on the record, including the forfeiture and destruction of the disputed property.¹² The agreement contemplated a total effective sentence of eight years, execution suspended after three years, with three years of probation, and the defendant retained the right to argue for a lesser sentence at the sentencing hearing on December 10, 2013.

At that hearing, DiPentima argued for a suspended sentence for the defendant, as the defendant had already been incarcerated for approximately four months. He also offered the following argument regarding Redmond's interest in the seized firearms: "We've talked about the weapons. There's been a lot of angst and concern, especially from [Redmond], a devout hunter, a man who has owned firearms responsibly for a number of years, [about] the ownership of those firearms, despite the fact as to where in the house the firearms were located, even though it was not a separate apartment, per se, where [the defendant] resided with his fiancé." At the conclusion of that hearing, the court imposed a total effective sentence of eight years of imprisonment, execution suspended, with three years of probation. The court also ordered the forfeiture and destruction of the weapons, magazine, and ammunition. At the sentencing hearing, Redmond did not object to the forfeiture and destruction of the disputed property.

The leniency of the defendant's sentence is apparent when compared with the maximum sentence allowed by the General Statutes that the defendant would have potentially faced had he proceeded to trial under these charges. The total effective sentence, for the charges the defendant entered pleas on, was twelve years of imprisonment.¹³ Additionally, had the defendant proceeded to trial on the charges the state agreed to nolle pursuant to this agreement, he would have potentially faced an additional twenty-nine years and three months of imprisonment.¹⁴ Redmond subsequently hired new counsel who filed on his behalf a "Motion for Stay of Order of Destruction and Return of Seized Property" with the criminal court, in which he claimed to be the owner of the firearms and argued that § 54–33g gave him a right to notice of any forfeiture proceeding. See State v. Redmond, 161 Conn.App. 622, 624–25, 128 A.3d 956 (2015), cert. denied, 320 Conn. 918, 132 A.3d 1093 (2016). Redmond made this motion in the concluded criminal matter rather than initiating a separate action. The court held hearings on the motion on March 14, 2014, and April 15, 2014, at which Redmond and the state offered argument, but no evidence or testimony was taken.

The court thereafter denied Redmond's motion. Although the court did not issue a written decision, the grounds on which the court denied the motion were stated during the April 15, 2014 hearing. Specifically, the court indicated that (1) no notice was required because the property was ordered forfeited under § 54–36a(c), as interpreted by State v. Garcia, 108 Conn.App. 533, 554–55, 949 A.2d 499, cert. denied, 289 Conn. 916, 957 A.2d 880 (2008), and not under § 54–33g, as argued by Redmond, and (2) the nexus between the property and the crimes rendered an in rem forfeiture proceeding unnecessary because, under Garcia, that nexus allows the court to order forfeiture pursuant to § 54–36a(c).¹⁵

From that judgment, Redmond appealed to this court, claiming that the court improperly (1) concluded that the seized property met the statutory definition of contraband in § 54–36a and (2) disposed of the property without giving him proper notice and an opportunity to be heard. State v. Redmond, supra, 161 Conn.App. at 624, 128 A.3d 956. We dismissed his appeal on the ground that this court lacked jurisdiction to consider these claims in a direct appeal of the criminal conviction because Redmond was not a party to the underlying proceeding. Id. In so doing, we observed that the appropriate vehicle for such claims is a writ of error. Id., at 626–27, 128 A.3d 956. Redmond then filed this writ of error with the Supreme Court, which transferred the case to our docket pursuant to Practice Book § 65–1.¹⁶

In his writ of error, Redmond raises two claims. First, he argues that the court improperly ordered the forfeiture of the seized property under § 54–36a(c) because an in rem forfeiture proceeding under § 54–33g was required to effectuate the forfeiture. Second, Redmond argues that the order of forfeiture was improper because the court failed to provide him proper notice and an opportunity to be heard as required by § 54–33g, which requires the court to give notice to any person with an interest in property that is proposed to be forfeited on the ground that it is a nuisance as the instrumentality of a crime, and to hold a hearing on the forfeiture within six to twelve days of such notice.¹⁷ In his claim for relief, he asks this court to reverse and set aside the April 15, 2014 decision on his motion for return of his property.

Practice Book § 72–1(a)(1) provides that a nonparty may bring a writ of error in matters of law from the final judgment of the Superior Court where that judgment is binding on that nonparty and the nonparty is aggrieved by that judgment. Accordingly, our scope of review is circumscribed in such matters and is limited to questions of law only. See E. Prescott, Connecticut Appellate Practice & Procedure (5th Ed. 2016) § 9–1:6, p. 524. "A writ of error...