State v. Sebben

STATE OF CONNECTICUT v. PETER J. SEBBEN

AC 34655

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued April 11, 2013

Officially released September 10, 2013

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(Appeal from Superior Court, judicial district of

Litchfield, Brunetti, J. [plea, vacation of plea];

Ginocchio, J. [motion to dismiss].)

Hubert J. Santos, with whom, on the brief, were Hope C. Seeley and Jessica M. Santos, for the appellant (defendant).

Michael Proto, assistant state's attorney, with whom, on the brief, were David Shepack, state's attorney, and Dawn Gallo, senior assistant state's attorney, for the appellee (state).

Opinion

LAVINE, J. The defendant, Peter J. Sebben, filed this appeal after the trial court denied his motion to dismiss the criminal charges against him. The defendant based his motion to dismiss on double jeopardy grounds after his plea bargain was rejected and the trial court permitted the state to file a second amended information reinstating the original charges. The state claims that this court lacks subject matter jurisdiction to consider this interlocutory appeal because the defendant has failed to raise a colorable claim of double jeopardy. Under the circumstances of this case, we agree with the state that the defendant has failed to raise a colorable claim of double jeopardy pursuant to State v. Thomas, 296 Conn. 375, 995 A.2d 65 (2010). We therefore lack jurisdiction and thus dismiss the appeal.

The following facts and procedural history are relevant. The defendant and the victim, Tonya McKay, were in an on-again, off-again, sometimes violent, relationship. At approximately 6 a.m. on January 1, 2000, the defendant drove the victim to the emergency department of Charlotte Hungerford Hospital in Torrington. The victim was unresponsive and appeared to be suffering from a head injury. The defendant informed hospital personnel that the victim had injured herself by banging her head on the floor and that he became aware of her injury when she soiled herself in bed. Emergency department personnel saw no evidence of soiling, but they observed marks and bruises on the victim's body. They, and later police, also observed what appeared to be a fresh scratch on the defendant's neck. At approximately 8 a.m., an emergency department physician telephoned the Torrington Police Department to report that a twenty-seven year old female had been brought to the hospital and that she may have been assaulted.

To examine the victim, emergency department personnel had to remove her clothing, which they placed in a patient belongings bag. They gave the bag to the defendant. The authorities were subsequently unable to locate the clothing the victim was wearing when she arrived at Charlotte Hungerford Hospital. After 8 a.m. on the morning in question, one of the victim's neighbors saw the defendant enter the victim's home and emerge carrying some items of clothing.

Later that morning, the victim was taken to Hartford Hospital. The defendant appeared at Hartford Hospital and engaged in a verbal dispute with the victim's parents, Samuel McKay and JoAnn McKay. The defendant gave the victim's parents the bag from Charlotte Hun-gerford Hospital, which contained items of clothing and the victim's purse. The clothing in the bag was not the clothing the victim was wearing when she entered Charlotte Hungerford Hospital.

Hartford Hospital personnel determined that the victimwas brain dead. On January 7, 2000, the victim was removed from life support equipment and died. Thereafter, police interviewed medical personnel, the victim's parents, her neighbors, and the defendant. The police obtained a number of search and seizure warrants, which they executed at the victim's home in New Hartford, the defendant's home in Winchester, and on the defendant's person. Police found bite marks on the defendant's body that, according to a dentist, were caused by the victim. After reviewing the victim's medical records, autopsy report, and police reports, the chief medical examiner certified that the victim's death was a homicide caused by blunt force trauma to her head.

On December 28, 2004, the state charged the defendant with one count of manslaughter in the first degree in violation of General Statutes § 53a-55 and one count of tampering with or fabricating physical evidence in violation of General Statutes § 53a-155. Following numerous pretrial conferences, the defendant offered to plead nolo contendere to misdemeanor charges. On November 29, 2006, the date of the defendant's plea hearing, the state filed a first substitute information charging the defendant with criminally negligent homicide in violation of General Statutes § 53a-58 and reckless endangerment in the first degree in violation of General Statutes § 53a-63. The defendant pleaded nolo contendere to those charges. The plea agreement did not include an agreed-upon punishment. The victim's parents were not present at the plea hearing, but the prosecutor represented that they had agreed to the plea bargain, believing ''that this would be the most appropriate way to proceed under all the circumstances.'' The prosecutor stated that the victim's parents would be present and speak at the sentencing hearing.

Before the court, Brunetti, J., accepted the defendant's nolo contendere plea, it addressed the defendant. The court stated that each of the crimes to which the defendant was pleading nolo contendere was a class A misdemeanor that carried a penalty of one year in prison, a fine of $2000, or both. The maximum penalty the defendant faced was two years in prison and a fine of $4000. The court also canvassed the defendant, including asking whether the facts represented by the prosecutor supported the plea. Defense counsel stated in response to the court's question: ''In substance, those are the facts. There is a great dispute on some of the facts, and they're going to be addressed in a sentencing memorandum. But in substance, those are the facts.'' The court found that the defendant's plea was knowingly and voluntarily made with the effective assistance of counsel and that there was a factual basis for the plea. The court then stated: ''The matter's being continued for a presentence investigation due February 9, [2007].'' (Emphasis added.)

The parties again appeared before Judge Brunetti onMay 25, 2007. At that time, the court noted that the case had been set down for sentencing, but had been continued so the court could review the file more thoroughly. The court stated that it had ''had another occasion to read the police reports, the medical documentation, the [presentence investigation report], the sentencing memoranda filed ... on behalf of [the victims'] parents and the defense.¹ The court has found this to be a very difficult decision to make. It was brought to my attention that there are some discrepancies in the [presentence investigation report] that was prepared by the state, some questions concerning the information in that [presentence investigation report]. In view of that, the court is going to order a new presentence investigation in this case basically for the purpose that I want to be fair to everybody involved in this case.'' The court again continued sentencing until August 17, 2007.

On August 17, 2007, the prosecutor, the victim's parents,² the defendant, and defense counsel addressed the court. When the court addressed the defendant, it informed him that it had read his sentencing memorandum, the arrest warrant application, the sentencing materials provided by the victim's parents, and the two presentence investigation reports. The court stated in part: ''This case involves . . . the death of a twenty-seven year old woman, whether or not [the defendant] was the cause of that death or could have prevented that death, this court does not know. The evidence is certainly conflicted. However, a twenty-seven year old woman is dead, and the last person who was with her was [the defendant].

''One of the reasons we have presentence investigations and presentence memorandum, presentencing information, is so the court can decide if the plea arrangement which in fact was entered into is an appropriate one, and I appreciate the fact that this case has gone on for seven and a half years and everyone needs closure. However, the court cannot ignore the fact of the death of this young woman in these circumstances. The court therefore finds, based on everything that I have heard, read, said, and did in this case, that the plea bargain in this case is not appropriate.''

The court afforded the defendant the opportunity to withdraw his...