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State v. Yates

Court of Appeals of Connecticut

November 22, 2016


          Argued December 11, 2014 [*]

         Appeal from Superior Court, judicial district of Waterbury, Damiani, J. [judgment]; Fasano, J. [motion to correct illegal sentence].

          John Yates, self-represented, the appellant (defendant).

          Jennifer F. Miller, deputy assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Eva B. Lenczewski, supervisory assistant state's attorney, for the appellee (state).

          Lavine, Prescott and Mihalakos, Js.


          PRESCOTT, J.

         The defendant, John Yates, appeals from the judgment of the trial court dismissing his motion to correct an illegal sentence. The defendant claims on appeal that the court improperly (1) permitted appointed counsel to withdraw without first requiring him to articulate the reasoning behind his determination that there was no sound basis for the motion to correct an illegal sentence, and (2) concluded that his sentence had not been imposed in an illegal manner. We conclude that only the form of the judgment is improper, and, accordingly, we reverse the judgment dismissing the defendant's motion to correct an illegal sentence and remand the case to the trial court with direction to render judgment denying the defendant's motion.

         The record reveals the following relevant facts and procedural history. The defendant was arrested and charged in connection with an April 10, 2010 armed robbery of a liquor store. On October 4, 2010, pursuant to a plea agreement reached in accordance with State v. Garvin, 242 Conn. 296, 699 A.2d 921 (1997), [1] the defendant entered guilty pleas to one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2) and, on a part B information, to being a persistent dangerous felony offender in violation of General Statutes § 53a-40.[2] In accordance with the Gar-vin agreement, the court, Damiani, J., agreed to sentence the defendant to eighteen years of incarceration, suspended after fourteen years, with the right to argue down to a sentence of eighteen years, suspended after twelve years. The court, however, also advised the defendant that he remained exposed to a possible sentence of up to forty-two and one-half years, of which ten years was mandatory, and/or a fine of $15, 000 if he violated the terms of the Garvin agreement either by failing to appear at the sentencing hearing, which was scheduled for December 7, 2010, or by being arrested with probable cause on any new charges prior to his sentencing. The defendant acknowledged that he under-stood the terms of the plea agreement.[3]

         Nevertheless, the defendant did not appear for his sentencing hearing on December 7, 2010. Furthermore, three new arrest warrants were issued for the defendant regarding three robberies that he allegedly committed on November 2, 2010, after entering his plea.

         The defendant eventually was apprehended, and the court sentenced him on the original robbery and persistent offender charges at a hearing on February 9, 2011. At that hearing, the court concluded that the defendant had violated both conditions of his Garvin agreement. First, the court found that the defendant had failed to appear at the originally scheduled December 7, 2010 sentencing hearing. Second, after the defendant waived his right to a Stevens hearing, [4] the court found on the basis of its review of the three arrest warrants and their affidavits that there was probable cause to support the warrants.[5] On the basis of the defendant's failure to comply with the terms of his plea agreement, the court opted to impose a flat sentence of twenty-two years of incarceration, which, as a result, required the defendant to serve eight years more of unsuspended jail time than the originally agreed upon sentence under the Gar-vin agreement.

         On March 18, 2011, the defendant was arraigned on three counts of robbery in the first degree arising from the three new arrest warrants. At that hearing, the following colloquy occurred between Judge Damiani and the defendant:

‘‘The Court: [J]ust to make the record clear today, you were before me some time ago after you failed to appear for sentencing on a robbery of a liquor store, I believe, and the indicated sentence was something after-twenty after fourteen, I believe, and you had a right to argue down to twenty after twelve and you failed to show up in court, and then when they did apprehend you, they had these three new robbery warrants against you, and when I sentenced you, I read the affidavits.[6] There was probable cause found by the judge who issued the warrants and I gave you twenty-two years on the old file and your lawyer explained to you, you could have had what they call a Steven's hearing to force the state to bring in people to show there was probable cause for your new arrest. Remember that?
‘‘The Defendant: Yes.
‘‘The Court: And you don't want that hearing, right?
‘‘The Defendant: No.
‘‘The Court: Okay. And then I gave you the twenty-two years for the violation of the Garvin canvass, one for failing to appear in court-I'm going to the same place Itold you, so don't be-be worried-and for the- the new arrests. Do you understand that?
‘‘The Defendant: Yes.
‘‘The Court: Okay. So now I asked the state-there was no sense in bringing these charges, but they bring the charges. The warrants were served against you on the three new robbery cases. The state has-we'll put on the record, they made contact with the victims. I'm going to put you to plea on each of these three robberies and I'm going to be giving you a year in jail on each robbery to run concurrent with each other for one year to serve on these three files-
‘‘The Defendant: Yeah.
‘‘The Court: -to be concurrent with the twenty-two years that I've-I've already given you the time for these three robberies when I upped you from fourteen to twenty-two. Understood?
‘‘The Defendant: Yes.'' (Emphasis added; footnote added.)

         The defendant then entered Alford pleas to each of the three robbery charges, [7] and the court rendered sentences in accordance with the preceding canvass. The defendant expressed his appreciation to the court for its fairness in sentencing.

         Nevertheless, on December 14, 2012, the defendant filed a self-represented motion to correct what he now asserts is an illegal sentence. According to the defendant, his February 9, 2011 sentence was illegal because the court improperly considered as a sentencing factor the three pending arrest warrants and effectively sentenced him for the robberies alleged in those warrants, despite the fact that, at that time, he had not yet been arrested, charged, or arraigned on those alleged robberies.

         The court, Fasano, J., appointed a special public defender for the limited purpose of reviewing the defendant's motion to correct and determining if a sound basis for such a motion existed in accordance with State v. Casiano, 282 Conn. 614, 922 A.2d 1065 (2007).[8]On January 30, 2013, the defendant's appointed attorney, Joseph Yamin, reported back to the court. At that time, he indicated to the court that he had reviewed the defendant's motion and researched all the issues raised by the defendant therein. He then stated to the court that he did ‘‘not find a sound basis for going forward.'' The court asked if counsel had already spoken with the defendant, and Yamin responded in the affirmative, indicating that he had spoken with the defendant the day before. The court granted Yamin permission to withdraw his appearance at that time. The court instructed the defendant that he could proceed with the motion to correct by himself, and the defendant elected to continue to prosecute his motion as a self-represented party.[9]

         The court held a hearing on the merits of the motion to correct an illegal sentence on March 13, 2013. One week later, the court issued a memorandum of decision in which it rejected the defendant's arguments that his sentence was imposed in an illegal manner, and concluded that the sentencing court's consideration of the pending arrest warrants fell well within the scope of information that could be considered by the court at sentencing, citing State v. Huey, 199 Conn. 121, 127, 505 A.2d 1242 (1986). The court found that the sentencing court properly had increased the defendant's sentence by eight years more than the original plea agreement because the defendant had ‘‘fail[ed] to appear for sentencing, a Garvin violation, and his picking up three new arrest warrants for which the court found probable cause; arguably, a Stevens violation.'' The court further explained: ‘‘Though, technically, the three arrest warrants had not been served at the time of the sentencing in question, and, therefore, were not new arrests as per Stevens, all parties were aware of the existence of the warrants (alleged street robberies to which the defendant had confessed) at the time of the sentencing; probable cause clearly existed for the arrests as was confirmed by the court, and the defense waived any hearing rights to question the existence of probable cause. To find, under these circumstances, that the technical difference between having three warrants pending and actually being arrested on the warrants places this case outside the parameters of Stevens, would be to exalt form over substance.'' (Emphasis in original.) Although Judge Fasano did not squarely address the defendant's suggestion that ...

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