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State v. Kallberg

Appellate Court of Connecticut

June 16, 2015

STATE OF CONNECTICUT
v.
CRAIG KALLBERG

Argued, January 6, 2015

Page 85

Substitute information charging the defendant with the crimes of larceny in the third degree as an accessory and conspiracy to commit larceny in the third degree, brought to the Superior Court in the judicial district of New Britain, geographical area number fifteen, and tried to the jury before Alander, J.; thereafter, the court denied the defendant's motion to dismiss; verdict and judgment of guilty, from which the defendant appealed to this court.

SYLLABUS

Convicted, after a jury trial, of the crimes of larceny in the third degree as an accessory and conspiracy to commit larceny in the third degree, the defendant appealed to this court. The convictions arose out of the theft of contents of a certain storage locker. The defendant claimed that the trial court improperly denied his motion to dismiss because the charges previously had been subject to a contractual plea agreement. The state and the defendant had been prepared to present a plea agreement whereby the defendant would plead guilty to possession of drug paraphernalia and pay a fine, and the state would enter a nolle prosequi with respect to three other pending cases, including the charges arising out of the storage locker theft. The judge who had pretried the matter was unavailable, so the state instead presented an agreement to a different judge whereby the state would enter a nolle prosequi with respect to all four cases, and stated reasons on the record therefor, and the defendant would pay a sum to the Criminal Injuries Compensation Fund. Subsequently, pursuant to the rules of practice (§ § 39-29 and 39-31) the state withdrew the nolle prosequi with respect to the storage locker case and initiated a new prosecution. The trial court denied the defendant's motion to dismiss, concluding that the prosecutor had entered a specific, separate, and unilateral nolle prosequi with respect to each of the pending cases, and that the payment to the fund applied only to the disposition of the charge concerning the possession of drug paraphernalia. Held that the trial court improperly denied the defendant's motion to dismiss pursuant to the previous contractual plea agreement: to the extent that this court viewed the plea agreement as a factual matter of the parties intent, this court was left with a definite and firm conviction that a mistake had been made because the prosecutor stated during the plea hearing that the defendant's " matters are all resolved" and the state made a contemporaneous request that the stolen property, which was to be used as evidence in the storage locker case, be returned to its rightful owner; moreover, contrary to the state's claim, any ambiguity in the plea agreement had to be construed in the defendant's favor, and there was a plausible reading of the record that the parties intended to enter into a global plea agreement but that the unavailability of the judge before whom the plea agreement was to be entered caused the prosecutor to adopt an alternative means of disposing of the cases in a substantially similar fashion in exchange for substantially similar consideration by the defendant, and the statements by the prosecutor at the plea hearing reflected the intended result, which was an equivalent substitute for the original plea agreement.

Alex Guziak, certified legal intern, with whom was Alice Osedach, assistant public defender, for the appellant.

Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Kevin J. Murphy, former supervisory assistant state's attorney, for the appellee.

Gruendel, Alvord and Borden, Js.

OPINION

Page 86

BORDEN, J.

[157 Conn.App. 722] The defendant, Craig Kallberg, appeals from a judgment of conviction, rendered after a jury trial, of one count of larceny in the third degree as an accessory in violation of General Statutes § § 53a-8 and 53a-124 (a) (2), and one count of conspiracy to commit larceny in the third degree in violation of General Statutes § § 53a-48 and 53a-124 (a) (2). The defendant claims that: (1) the trial court improperly denied his motion to dismiss all charges pursuant to a previous contractual plea agreement; and (2) improper statements by the prosecutor during closing argument deprived the defendant of his right to due process. Because we agree with the defendant on his first claim, we reverse the judgment of the trial court.[1]

The jury reasonably could have found the following facts, which are relevant to this appeal. On July 21, 2010, Michael Higgins and the defendant broke into a number of storage lockers located in the basement of an apartment building located at 92 West Main Street in Plainville. Higgins and the defendant took a number [157 Conn.App. 723] of items belonging to Robert Jerl, a resident of the apartment building.[2] Higgins was questioned by police in regards to the theft and admitted to stealing the items with the defendant. Both Higgins and the defendant subsequently were arrested and charged in relation to the theft.

The following procedural history also is relevant. The defendant was charged with, inter alia, larceny in the fourth degree and burglary in docket number CR-10-0046439-T.[3] The defendant and the state initially entered into a plea arrangement whereby the state, pursuant to Practice Book ยง 39-29, would enter a nolle prosequi (nolle) in three cases ...


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