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State v. Dayton

Court of Appeals of Connecticut

October 3, 2017

STATE OF CONNECTICUT
v.
STACEY DAYTON

          Argued April 24, 2017

          Pamela S. Nagy, assistant public defender, for the appellant (defendant).

          Kathryn W. Bare, assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Margaret E. Kelley, supervisory assistant state's attorney, for the appellee (state).

          DiPentima, C. J., and Beach and Sheridan, Js. [*]

         Syllabus

         Convicted, on pleas of nolo contendere, of the crime of operating a motor vehicle while under the influence of intoxicating liquor or drugs, and with previously having been convicted of that offense, the defendant appealed to this court, challenging, inter alia, the trial court's denial of his motion to dismiss. After the trial court had accepted the defendant's pleas and made a finding of guilty, at the defendant's request the sentencing was continued to a later date. The defendant failed to appear at sentencing and the court ordered his rearrest. Approximately eight years later, the court vacated the rearrest order and the case was ‘‘closed out'' pursuant to statute (§ 14-140 [b]). Ten years later, the state entered a nolle prosequi as to the defendant's case, and the court noted the nolle for the record. More than thirteen months after the nolle had been entered, the state requested that the case be redocketed. The defendant filed amotionto dismiss, to which the state objected, and, after a hearing, the court denied the motion, finding that the state had mistakenly nolled the case. The court, relying on the previously accepted plea canvass, proceeded to sentencing, and this appeal followed. Held:

         1. The state could not prevail on its claim that the defendant's appeal should be dismissed on the basis of the common-law fugitive felon disentitlement doctrine, which allows an appellate court to dismiss the appeal of a party who flees subsequent to the felony conviction from which he appeals; the appellate process had not been prejudiced, due to the passage of time, as a result of the defendant's failure to appear at his initial sentencing proceeding, and, under these facts and circumstances, dismissal of the appeal under the fugitive felon disentitlement doctrine was not warranted.

         2. The trial court improperly denied the defendant's motion to dismiss; that court lacked jurisdiction over the case after the state entered the nolle and failed to initiate a new prosecution, and because more than thirteen months had passed since the entry of the nolle, the records of the case were subject to erasure by operation of law; moreover, the court, which found that the state had mistakenly nolled the case, cited no authority to support its decision to invalidate a nolle that had been entered more than thirteen months earlier, and the state's claim that the court merely corrected a clerical error when it denied the motion to dismiss was unavailing, as the effect of the state's decision to nolle the case resulted in the termination of the proceedings against the defendant, and to subsequently revive the charge was a matter of substance, not a mere transcription or calculation clerical error.

         Procedural History

         Two part information charging the defendant, in the first part, with the crimes of operating a motor vehicle while under the influence of intoxicating liquor or drugs and evading responsibility, and with the infractions of following too closely, failure to comply with emission inspection, and failure to use a seat safety belt, and, in the second part, with having previously been convicted of operating a motor vehicle while under the influence of intoxicating liquor or drugs, brought to the Superior Court in the judicial district of Fairfield, geographical area number two, where the defendant was presented to the court, Leavitt, J., on pleas of nolo contendere to the charge of operating a motor vehicle while under the influence of intoxicating liquor or drugs in the first part of the information and to the second part of the information; thereafter, the state entered a nolle prose-qui as to evading responsibility, following too closely, failure to comply with emission inspection, and failure to use a seat safety belt; subsequently, the state entered a nolle prosequi as to all of the charges; thereafter, the court, E. Richards, J., denied the defendant's motion to dismiss and rendered judgment in accordance with the pleas, from which the defendant appealed to this court. Reversed; judgment directed.

          OPINION

          DiPENTIMA, C.J.

         The defendant, Stacey Dayton, appeals from the judgment of conviction, rendered after a plea of nolo contendere, of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes (Rev. to 1995) § 14-227a.[1] On appeal, the defendant claims that the court improperly (1) denied his motion to dismiss, and (2) accepted his plea when it was not knowingly, intelligently or voluntarily made. The state disagrees with the defendant on the merits of this appeal and also contends that this appeal is subject to dismissal pursuant to the fugitive felon disentitlement doctrine. We disagree that this appeal should be dismissed and agree with the defendant's first claim. Accordingly, we reverse the judgment of the trial court.[2]

         The following facts and procedural history are relevant to the resolution of this appeal. On November 29, 1995, the defendant entered a plea of nolo contendere to the charge of operating a motor vehicle under the influence of intoxicating liquor or drugs. General Statutes (Rev. to 1995) § 14-227a; see footnote 1 of this opinion. At that proceeding, the court found that the plea was ‘‘voluntarily and understandingly made with the assistance of competent counsel. There's a factual basis for the plea. The plea is accepted. Finding of guilty.'' Pursuant to a plea agreement, the defendant would receive a sentence of one year incarceration, execution suspended after ten days, two years of probation and certain special conditions. This sentence was not imposed immediately, as the court acquiesced to the defendant's request to continue the matter.

         On January 3, 1996, the defendant failed to appear at sentencing. The court ordered the defendant rearrested and set a cash bond in the amount of $500. No further actions occurred in the defendant's case for nearly eight and one-half years. In 2004, the court vacated the rear-rest order, and the case was ‘‘closed out'' pursuant to General Statutes § 14-140 (b).[3] Ten years later, in 2014, the state entered a nolle prosequi as to the defendant's case.[4] The court noted the nolle prosequi for the record.

         On September 4, 2015, more than thirteen months after the nolle had been entered, the state requested that the defendant's case ‘‘be brought back to court.'' The prosecutor represented to the court that notice had been sent to the defendant's last known address informing him of the proceeding, but that he was not present. The court agreed to the prosecutor's request to have a bail commissioner's letter sent to the defendant.

         On October 29, 2015, the defendant filed a motion to dismiss pursuant to General Statutes § 54-56[5] and Practice Book § 41-8 (4).[6] The state filed a motion in opposition on November 9, 2015.[7] The court held a hearing on December 3, 2015, at which time it rendered an oral decision denying the defendant's motion. Specifically, it stated: ‘‘The court's feeling is that under the circumstances in this case where a plea has been canvassed, accepted by the court, where there was a failure to appear at the time of sentencing, where a rearrest was ordered, but the subsequent nolle in this case was a mistake and therefore not valid. And therefore I am going to find that the motion to dismiss is not proper and I'm going to deny it at this time. . . . I think the court has jurisdiction because I feel that . . . the nolle which allowed the case to ripen it into a dismissal was invalid. That therefore, if the nolle was invalid, then the court will still retain jurisdiction.''

         After denying the motion to dismiss, the court relied on the previously accepted plea canvass and proceeded to sentencing. The defendant received a sentence of six months incarceration, execution suspended, eighteen months of probation and 100 hours of community service. The court imposed fines, but remitted them due to ‘‘the age of the case.'' This appeal followed. Additional facts will be set forth as necessary.

         I

         As an initial matter, we consider the state's claim that the defendant's appeal should be dismissed on the basis of the fugitive felon disentitlement doctrine. This doctrine ‘‘allows an appellate court to dismiss the appeal of a party who flees subsequent to the felony conviction from which he appeals.'' State v. Brabham, 301 Conn. 376, 378, 21 A.3d 800 (2011). After considering the facts ...


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