Opinion
No. CR96 0094553, CR97 0098839, CR97 0098845
September 2, 2008
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO REOPEN JUDGMENT
The defendant, Scott Winer, has moved this court to reopen the judgment in the above-captioned matters. The court heard oral argument by counsel and reserved decision. Having considered the arguments as well as the applicable statutes, practice rules and case law, the court makes the following findings.
The history of this case, specifically the post-plea and post-sentencing portions, is extremely lengthy and very convoluted. Both the State and the defendant agree on the various dates of plea, sentencing and post-sentencing proceedings. They both agree that on January 5, 1998, Winer entered pleas of nolo contendere to the following charges: In case No. CR96-0094553, to a violation of § 53-21, for an incident on August 1, 1995; in case No. CR97-0098845, to a violation of § 53-21, for an incident on July 15, 1995; and in case No. CR97-0098839, to a violation of #53-21(2), for an incident on March 1, 1997.
Both sides acknowledge that the March 1, 1997 incident occurred after the effective date of P.A. 95-142, which added subsection (2) to § 53-21, § 53-21(2) became a Class C felony.
On March 26, 1998, the defendant was sentenced to a total effective sentence of 8 years, suspended after 2 years, and thereafter five years probation.
On May 27, 1999, the defendant moved to withdraw his pleas.
On September 27, 1999, the defendant filed a motion to vacate the judgment and to withdraw his pleas of nolo contendere. The basis of those motions was the defendant's claim that the sentence he received was not in accordance with the plea agreement.
Those motions were denied by the trial court on December 15, 1999. The defendant appealed that decision of the trial court.
On May 14, 2002, the Appellate Court, in State v. Winer, 69 Conn.App. 738, ruled that the trial court did not abuse its discretion in denying the defendant's motion to withdraw his pleas.
The Appellate Court did rule, however, that the sentence of eight years, suspended after two years, and thereafter five years of probation was an illegal sentence because it failed to satisfy the minimum requirements of 10 years of probation as established by § 53a-29e. The Appellate Court remanded the case back to the trial court for the purpose of re-sentencing the defendant to a legal sentence. On October 25, 2002, the trial court re-sentenced the defendant to a sentence of eight years, suspended after two years and, thereafter, 10 years probation.
The prayer for relief in the instant motion is that the court should open the original judgment and (1) make factual findings that the terms of the plea agreement cannot be determined because the plea agreement was so ambiguous and was not clearly or fully communicated as demonstrated by the full record and the contradictory admissions of the State regarding the terms of the plea agreement including two opposite versions since the decision of the Appellate Court in State v. Winer, 69 Conn.App. 738; OR (2) make a factual finding that the plea agreement was for a sentence of eight years incarceration suspended after two years and five years probation.
This court denies the defendant's motion to re-open the judgment for either reason.
As for the defendant's first requested finding, a review of the entire proceedings does not permit the court to find that the pleas agreement was not so ambiguous or that it was not clearly or fully communicated to the defendant at the time he entered his pleas or at the time he was sentenced by the court. Nor was it the subject of any fraudulent or negligent misrepresentations by the State.
In its oral argument of this motion the defendant claims that in his decision of December 15, 1999, which denied the defendant's motion to withdraw his pleas, Judge Byrne didn't make a finding of the exact terms of the plea agreement. That was the same argument raised by the defendant when he appealed Judge Byrne's decision to the Appellate Court ( State v. Winer, 69 Conn.App. 738).
That appeal, as previously noted, was dismissed by the Appellate Court and certification was denied by the Supreme Court.
The Appellate court addressed that issue on page 748 of its decision. The court held, "the terms of the plea agreement in this case constituted a split sentence. During the colloquy between the court and the defendant, to determine whether the pleas were being entered into knowingly and voluntarily, the defendant specifically agreed to an executed sentence of two years incarceration, plus a suspended sentence of that could be as long as thirty years. According to Black's Law Dictionary, a suspended sentence is one that the ` defendant is not required at the time the sentence is imposed to serve the sentence.' (Emphasis added in original.) While not required to serve a sentence when imposed, a suspended sentence contemplates the possibility that the defendant could be required to serve the sentence imposed as some later time. (Emphasis added.)
On that same page of its decision, the Appellate Court went on to note "It is disingenuous for the defendant to now state that he thought that the maximum amount of time he could be incarcerated for was for two years when he specifically acknowledged that he could receive a suspended sentence of up to thirty years."
The Appellate Court made said findings based on the record of the pleas canvass and not upon the oral arguments which preceded the December 15, 1999 ruling of Judge Byrne and not as a result of any fraudulent or negligent misrepresentations regarding the plea agreement by the State as alleged by the defendant in his motion.
As to for the defendant's second requested finding, this court does find that on January 5, 1998, the defendant was canvassed by the Court after entering three separate pleas of nolo contendere and was informed by the court that the maximum penalty for each of the three charges was ten years, which the defendant stated he understood. The court also advised the defendant that "I've discussed this case with counsel again this morning, and at this particular point, I am limiting myself to an incarcerated portion of a sentence up to two years. You understand that?" The defendant thereafter indicated that he did so understand.
The defendant was also apprised by the court that the sentence "could very well be something like thirty years suspended after two years or less, you understand that?" The defendant indicated that he did so understand.
The Court makes a factual finding that that was the extent of the agreement at the time the plea was made and accepted by the Court. The court has no basis to find that the plea agreement was for a sentence of eight years incarceration suspended after two years and five years probation.
As previously noted, a sentence of eight years incarceration suspended after two years with five years probation is the sentence that was imposed by Judge Byrne on March 26, 1998. That sentence was later found by the Appellate Court to be an illegal sentence and the matter was remanded for re-sentencing in conformity with § 53a-29(e). On October 25, 2002, the defendant was re-sentenced, in absentia, by Judge Bozzuto to a sentence in conformity with that statute. The record indicates that the defendant was subsequently re-sentenced to the same sentence on February 8, 2007, by Judge Cronin. On that occasion, the defendant was present for sentencing.