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STATE v. PIORKOWSKI

October 31, 1995

STATE OF CONNECTICUT
V.
MICHAEL PIORKOWSKI



[8]    The opinion of the court was delivered by: Borden, J.

[9]    The dispositive issue in this certified appeal is whether the defendant's conditional plea of nolo contendere in the trial court, to the crime of murder in violation of General Statutes § 53a-54a (a), *fn1 presents an appropriate occasion for appellate review of his substantive claims pursuant to Practice Book § 4003 (b). *fn1 [236 Conn Page 391]

The defendant, Michael Piorkowski, appeals *fn2 from the judgment of the Appellate Court which declined to review his claims regarding the admissibility of certain statements that he had made to the police, *fn2 and remanded the case to the trial court for further proceedings. State v. Piorkowski, 37 Conn. App. 252, 656 A.2d 1046 (1995). The defendant contends that the Appellate Court improperly concluded that his claims were not reviewable under General Statutes § 54-94a, *fn2 Practice Book § 4003 or the appellate supervisory power over the administration of justice. We conclude that the defendant's claims: (1) are not reviewable under General Statutes § 54-94a; and (2) are reviewable under Practice Book § 4003 (b). *fn2 Accordingly, we reverse the judgment of the Appellate Court.

The following facts and procedural history are undisputed. On October 21, 1992, the defendant was arrested [236 Conn Page 392]

for the murder of Tim Lee. He moved to suppress two statements that he had made to the police, one on October 21, 1992, and the other on October 22, 1992. With respect to the October 21 statement, the defendant asserted in his motion that it was: (1) obtained without a valid waiver of his Miranda *fn3 rights; and (2) a product of a violation of his right to a prompt arraignment under General Statutes §§ 54-1c and 54-1g. *fn3 With respect to the October 22 statement, the defendant asserted that it was: (1) a fruit of his illegal interrogation on October 21; and (2) independently inadmissible because it was the product of a violation of his right to counsel under article first, § 8, of the Connecticut constitution *fn3 that had attached at his arraignment on October 21.

Following an evidentiary hearing on the defendant's motion to suppress, the trial court found the following [236 Conn Page 393]

facts. After having been arrested by the Norwalk police department on drug charges in early 1992, the defendant became a confidential informant for the Norwalk police, working primarily with Detective James Saraceni. The defendant informed the police that Lee was a marijuana dealer, but in September, 1992, when Saraceni attempted to use the defendant in an investigation of Lee, the defendant told Saraceni that Lee had left town.

On approximately October 10, 1992, Lee's body was discovered in New Jersey. In the early morning of October 20, 1992, Norwalk Detective Robert DeLallo learned that Christine Thompson, a friend of Lee, had given New Jersey police a statement implicating the defendant in Lee's murder. At approximately 7:30 a.m. on October 20, DeLallo and other officers located the defendant in Norwalk and, during a frisk of the defendant for weapons, found drugs and drug paraphernalia on his person. The police arrested the defendant on drug charges, orally advised him of his Miranda rights, and brought him to the Norwalk police station at approximately 8 a.m.

The defendant was not presented in court on the drug charges on October 20, but was held in the police department lockup while the police continued to investigate Lee's murder. At approximately 11 p.m., on October 20, the police secured an arrest warrant charging the defendant with Lee's murder. At approximately midnight on October 21, Saraceni and Detective Nelson Alicia awakened the defendant in his lockup cell. The defendant indicated that he wanted to talk with Saraceni, after which the detectives took the defendant to an interview room, where Saraceni informed him that the police had an arrest warrant for the defendant on [236 Conn Page 394]

a murder charge. Saraceni told the defendant that he would talk to him only after giving him the Miranda warnings and having him fill out a waiver of rights form. Saraceni read the waiver of rights form to the defendant, who did not sign the form. Saraceni then interrogated the defendant in Alicia's presence. During the interrogation, the defendant spoke freely, giving a detailed statement implicating himself in Lee's murder.

The detectives concluded their interrogation of the defendant at approximately 2 a.m. on October 21, 1992. Later that day, approximately twenty-six hours after his arrest on the drug charges, the defendant was arraigned in geographical area number twenty of the Superior Court on both the drug and murder charges; that court had been in session on October 20. A public defender was appointed to represent the defendant on both charges.

At approximately 10:30 p.m. on October 21, DeLallo and Detective Charles Chrzanowski went to the home of Denise Van Valen, with whom the defendant lived, to ascertain whether she had any information regarding the murder of Lee. While they were in Van Valen's home, the defendant called her from the Bridgeport correctional center. Van Valen told the defendant that the detectives were there, and asked him if he wanted to talk to DeLallo. The defendant indicated that he did, and she handed the telephone to DeLallo. When the defendant asked DeLallo to come to the jail to speak to him, DeLallo told the defendant that he would try to see him at the jail the next day. When Van Valen visited the defendant at the jail on October 22, she learned that DeLallo had not yet visited the defendant. Later that day Van Valen called DeLallo and asked him why he had not yet visited the defendant.

Although DeLallo was aware that the defendant was represented by an attorney on the murder charge, no [236 Conn Page 395]

call was placed to the public defender assigned to the defendant's case. After Van Valen's call to him on October 22, DeLallo spoke to assistant state's attorney James Bernardi and state's attorney's inspector Phil O'Grady, in order to determine whether he could appropriately interview the defendant at the jail. Bernardi and O'Grady advised DeLallo that, if the defendant had initiated the contact with him and had requested to speak with him, it was permissible to interview him regarding the murder charge. Having obtained approval from the state's attorney's office, DeLallo and Alicia visited the defendant at the jail on the evening of October 22. Neither the detectives nor the state's attorney's office informed the defendant's counsel of the detectives' intention to interview the defendant. The detectives read him a Miranda rights and waiver form, which he initialed and signed. They then interviewed him about the Lee murder, and he gave another oral statement.

With respect to the defendant's motion to suppress his statements to the police, the trial court concluded that: (1) although the defendant had not signed a waiver of rights form, he had nonetheless knowingly and intelligently waived his Miranda rights prior to making a statement on October 21; (2) the defendant had been timely arraigned because §§ 54-1c and 54-1g require only that a suspect be arraigned no later than the day following his arrest; *fn4 (3) because the defendant had validly waived his Miranda rights on October 21, his [236 Conn Page 396]

statement that day had not rendered his statement on October 22 invalid; and (4) the defendant's statement on October 22 did not violate his right to counsel under article first, § 8, of the state constitution because our cases do not require that counsel be present when a suspect waives his right to counsel. *fn5

Having rejected the defendant's claims for suppression of both his October 21 and October 22 statements, the trial court denied the defendant's motion to suppress. Thereafter, the state and the defendant appeared before the trial court, and the defendant entered a conditional plea of nolo contendere to the charge of murder pursuant to § 54-94a. See footnote 5. Both the state and the defendant urged the trial court to accept the conditional plea. The state and the defendant shared certain common understandings: (1) the defendant's plea was being entered pursuant to § 54-94a, and would be reviewed by this court pursuant either to that statute or to our supervisory power, as articulated in State v. Kelley, 206 Conn. 323, 335-36, 537 A.2d 483 (1988), and State v. Chung, 202 Conn. 39, 44, 519 A.2d 1175 (1987); (2) the record was adequate for appellate review of the suppression issues that the defendant intended to raise on appeal; (3) all of the defendant's claims concerned his statements given on October 21 and 22, 1992; (4) the defendant's claims could otherwise only be tested [236 Conn Page 397]

by a full trial, which would be burdensome because, Lee's body having been discovered in New Jersey, the state intended to call many out-of-state witnesses; and (5) because the defendant would be challenging two confessions, if he were successful on appeal with respect to either confession, the reviewing court would remand the case to the trial court for further proceedings, rather than determine whether the admissibility of one of the confessions rendered the inadmissibility of the other confession harmless. *fn6

Following this recitation of understandings and expectations, the trial court expressed some reservation regarding whether § 54-94a, which requires that the statement sought to be suppressed have been involuntary; see footnote 5; encompassed the defendant's conditional plea and appeal in this case. Nonetheless, the court canvassed the defendant, he entered his conditional plea, and the court accepted the plea. Thereafter, the court sentenced the defendant, and he took an appeal to this court. We transferred the defendant's appeal to the Appellate Court.

In his brief to the Appellate Court, the defendant claimed that: (1) his October 21 statement was inadmissible because it had been elicited in violation of § 54-1c; see footnote 8; and (2) his October 22 statement was inadmissible because it had been elicited in violation of his right to counsel under article first, § 8, of the Connecticut constitution. See footnote 9. In its brief, the state questioned whether any appellate court had subject matter jurisdiction to consider the defendant's appeal. The state argued that the defendant's appeal did not come within the purview of General Statutes § 54-94a, and questioned whether Practice Book § 4003 supplied a proper subject matter jurisdictional basis for [236 Conn Page 398]

the appeal. The state suggested that, if § 54-94a is a subject matter jurisdictional statute, a reviewing court does not have the power to exercise its supervisory power beyond the confines of that statute. The state argued, in the alternative, that, if § 54-94a is not a subject matter jurisdictional statute that limits the court's supervisory power, nonetheless the court should not exercise that power in this case. *fn7

In his reply brief to the Appellate Court, the defendant argued that the appeal was properly before the court. He contended that: (1) § 54-94a does encompass his conditional plea in this case; (2) § 4003 does not conflict with § 54-94a; and (3) the appeal presented an appropriate occasion for the exercise of the court's inherent supervisory power.

The Appellate Court rejected the state's subject matter jurisdictional claims. The court concluded that neither General Statutes § 54-94a nor Practice Book § 4003 involved subject matter jurisdiction. The court also concluded, however, that the appeal did not come within the confines of General Statutes § 54-94a because on appeal the defendant was not challenging the voluntariness of his statements. State v. Piorkowski, supra, 37 Conn. App. 261. The court concluded further that the appeal did not meet the requirements of Practice Book § 4003 (b) because of the condition imposed on the appeal, namely, that if the defendant prevailed regarding either statement, his appeal was not within the meaning of "prevail" in § 4003 (b). Id., 263. Finally, the court concluded that the appeal did not present an appropriate occasion for the exercise of the court's supervisory power because to do so would circumvent the limitations of both § 54-94a and § 4003. Id., 265. The court, therefore, declined to address the merits of the defendant's appeal. Recognizing, however, that the [236 Conn Page 399]

defendant's plea had been entered on the express condition that he would secure appellate review of the trial court's ruling on his motion to suppress, the Appellate Court reversed the judgment of the trial court and remanded the case for further proceedings. Id., 266 n. 15. This certified appeal followed.

We note at the outset that the defendant did not challenge in the Appellate Court the ruling of the trial court that his October 21 statement had not been elicited in violation of his Miranda rights. Thus, to the extent that Miranda acts as a prophylaxis against police coercion of statements by defendants, that issue is not involved in the defendant's appeal. The defendant's sole basis for challenging the admissibility of that statement is statutory, namely, that the prompt arraignment provisions of §§ 54-1c and 54-1g rendered that statement inadmissible. With respect to the defendant's October 22 statement, moreover, the sole basis for the defendant's appellate challenge to the trial court's ruling is that it had been elicited in violation of his state constitutional right to counsel. In this connection, the gist of the defendant's argument is that, as a matter of state constitutional law, the court should adopt the principle, articulated by the New York Court of Appeals in People v. Settles, 46 N.Y.2d 154, 162-63, 385 N.E.2d 612, 412 N.Y.S.2d 874 (1978), that a postinformation waiver of the right to counsel may occur only in the presence of counsel. With this background in mind, we turn to the specific issues of appellate reviewability raised by this case.

I

The defendant first contends that his claims are reviewable pursuant to § 54-94a. Specifically, the defendant argues that § 54-94a is not subject matter jurisdictional, and that his claims fall within the meaning [236 Conn Page 400]

of the phrase, "involuntariness of a statement," as used in that statute.

The state disagrees with the defendant's statutory interpretation. Specifically, the state argues that the statute involves subject matter jurisdiction because it embodies the final judgment rule, and that the defendant's condition of appeal — that if he prevails with regard to either statement the case must be remanded to the trial court — violates that rule because it permits piecemeal litigation. With respect to the language of § 54-94a, the state argues that, although the defendant's original, Miranda-based challenge in the trial court to the admissibility of his October 21 statement would have qualified as a challenge to the "voluntariness" of that statement, he did not renew that challenge on appeal, and neither his statutory claim nor his right to counsel claim involves a challenge to the "voluntariness" of either his October 21 or his October 22 statement.

We agree with the defendant and the Appellate Court that § 54-94a is not a subject matter jurisdictional statute. We also agree with the state, however, that neither the defendant's challenge to his October 21 statement, which is based on §§ 54-1c and 54-1g, nor his challenge to his October 22 statement, which is based on his state constitutional right to counsel, comes within the terms of § 54-94a, because neither challenge involves the "voluntariness" of the statement.

A

We first address the state's contention that § 54-94a is subject matter jurisdictional. The state argues that § 54-94a embodies the final judgment rule, namely, that, absent specific statutory exceptions, a final trial court judgment is a prerequisite to appellate subject matter jurisdiction. Waterbury Teachers Assn. v. Freedom of Information Commission, 230 Conn. 441, 447, 645 A.2d 978 (1994). In support of its position, the state relies [236 Conn Page 401]

on the fact that the parties purported to attach a condition to the defendant's plea of nolo contendere, namely, that if he were only partially successful on appeal — if he were successful in suppressing only one of his statements — the case would nonetheless be remanded for further trial court proceedings. In the state's view, this "unique contingency attached to the defendant's plea render[ed] the appeal interlocutory," because by gaining suppression of one confession, "he would obtain the opportunity to go to trial against what he might consider a relatively weaker state's case." We disagree.

We believe that the Appellate Court correctly analyzed the function of § 54-94a. "The power to hear appeals in criminal cases is conferred by General Statutes § 54-95. *fn8 Pursuant to § 54-95, appellate criminal jurisdiction lies where there is an appeal from a final judgment. The thirty year sentence that was imposed on the defendant here constituted a final judgment. State v. Ayala, 222 Conn. 331, 339, 610 A.2d 1162 (1992); State v. Jackson, 32 Conn. App. 724, 731, 630 A.2d 164, cert. denied, 228 Conn. 903, 634 A.2d 297 (1993). This court is competent to entertain this action because appellate courts routinely review appeals that challenge trial courts' denials of motions to suppress statements.

"When viewed in light of the definition of subject matter jurisdiction and the statutes that create such jurisdiction, it becomes clear that § 54-94a neither confers nor curtails appellate subject matter jurisdiction. What § 54-94a does is abrogate, in certain circumstances, the waiver of constitutional rights that is implicit in a guilty or nolo contendere plea. As a general rule, an unconditional plea of guilty . . . intelligently and voluntarily made, operates as a waiver of all nonjurisdictional [236 Conn Page 402]

defects. . . . State v. Niblack, 220 Conn. 270, 276, 596 A.2d 407 (1991); see also Parker v. Commissioner of Correction, 27 Conn. App. 675, 683-84, 610 A.2d 1305, cert. denied, 223 Conn. 909, 612 A.2d 57 (1992), citing Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973). Section 54-94a clearly states its purpose in its concluding sentence: A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution. (Emphasis added.) In referring to ยง 54-94a, our Supreme Court has said: The legislature in 1982 altered the broad waiver of constitutional rights implicit in a plea ...


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