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State v. Mitchell

Appellate Court of Connecticut

January 14, 2020

STATE OF CONNECTICUT
v.
JAMES MITCHELL

         Argued October 9, 2019.

Page 565

          Appeal from the Superior Court in the judicial district of Hartford, Solomon, J., Miano, J., Hon. Edward J. Mullarkey, judge trial referee.

         COUNSEL:

          James E. Mortimer, assigned counsel, for the appellant (defendant).

          Matthew A. Weiner, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Donna Mambrino, senior assistant state's attorney, for the appellee (state).

          DiPentima, C. J., and Elgo and Moll, Js. DiPENTIMA, C. J. In this opinion the other judges concurred.

          OPINION

Page 566

         [195 Conn.App. 201] DiPENTIMA, C. J.

         The defendant, James Mitchell, appeals from the judgment of the trial court denying his motion to correct an illegal sentence. On appeal, the defendant challenges the trial court's denial of his motion to correct on four grounds: (1) that the sentence was imposed in an illegal manner in violation of Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), because the defendant was sentenced after the nine month period of the Garvin agreement had ended; (2) that the sentence was imposed in an illegal manner because the defendant was not given adequate notice of the sentencing hearing; (3) that he was denied the opportunity to make a statement or present evidence in violation of Practice Book § 43-10; and (4) that the imposition of the sentence violated Practice Book § 43-29.[1] We disagree and,

Page 567

accordingly, affirm the judgment of the trial court.

          The record reveals the following relevant facts and procedural history. On November 14, 1997, the defendant was sentenced to ten years imprisonment, execution suspended after four years, and five years of probation for the underlying crime of robbery in the first degree with a firearm. The defendant's probation began on February 23, 2001. During this probation period, the defendant was arrested, subsequently convicted on or about October 25, 2001, for possession of a controlled substance in violation of General Statutes (Rev. to 2001) § 21a-279 (c)[195 Conn.App. 202] and fined $250. The defendant was incarcerated for failure to pay the fine on March 8, 2002, and later released. The defendant was arrested on March 7, 2002, for possession of narcotics and sale of a controlled substance in violation of General Statutes (Rev. to 2001) § 21a-279 (a) and General Statutes (Rev. to 2001) § 21a-277 (b). On April 19 and 30, 2002, the defendant tested positive for the presence of cocaine in two separate urine samples. On May 13, 2002, the defendant was charged with violating his probation. Subsequently, on or about May 25, 2002, the defendant was arrested for possession of a controlled substance in violation of General Statutes (Rev. to 2001) § 21a-279 (c) and sale of a controlled substance in violation of General Statutes (Rev. to 2001) § 21a-277 (b). The defendant was also charged with possession of a controlled substance for conduct occurring on or about October 17, 2002.

          On June 18, 2003, after reaching a Garvin agreement with the state,[2] the defendant appeared before the court, Solomon, J . At the hearing, the court explained its understanding of the terms of the plea agreement: " Here is the deal as I understand it. You are going to admit [to the violation of probation]. You are going to get random drug screenings. You get one positive and if you fail to show up for a test because you don't want to know what the result is, that failure to show up in my opinion is a positive . . . . You are going to be working full time and you are not going to commit any more crimes. If you do any of those things in the course of the next nine months, I'm going to bring you back. You are going to get at least the six years that you owe on the violation of probation, and with respect to the [195 Conn.App. 203] other charges, I can do whatever I want. I can run concurrent and I can run consecutive . . . . You make it for nine months, work full time, no crimes, no positive urines, I will continue you on probation at that point in time. Whether you go to jail is entirely in your hands. There is not going to be a negotiation if you come back and you failed. I'm not going to hear about [how] you did pretty good or you did really well for six months. As far as I'm concerned, if you fail, you failed, and you get the six years."

          After the defendant admitted to violating his probation and pleaded guilty to two counts of possession of a controlled substance, the court canvassed the defendant and repeated the terms of the plea agreement. " Even though we discussed it on the record, I am going to go through it again with you. ...


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