STATE v. SCOTT WINER, SC 18274

Judicial District of New Britain at Bristol

 Criminal; Illegal Sentence; Whether Defendant Should Have Been Allowed to Withdraw Pleas.  In 1998, the defendant pleaded nolo contendere to two counts of risk of injury to a minor in violation of General Statutes (Rev. to 1995) § 53-21 and one count of risk of injury in violation of General Statutes (Rev. to 1997) § 53-21 (2).  He was sentenced to eight years incarceration, suspended after two years, with five years of probation.  Subsequently, the defendant moved to withdraw his pleas as involuntary and unknowing, claiming that the plea agreement had been for a maximum two year sentence and no probation.  On appeal from the denial of his motion, the Appellate Court rejected the defendant's involuntary plea claim, finding that he had bargained for a sentence of up to thirty years, all but two of which would be suspended, and, thus, the five years of probation was within the terms of the agreement.  The court, however, found that the defendant's sentence for violating § 53-21 (2) was illegal because it was below the mandatory minimum of ten years probation for that offense and remanded the case for resentencing, directing that the mandatory period of probation be imposed.  Subsequently, the trial court resentenced the defendant to ten years of probation. The defendant then filed a motion to correct his sentence, claiming that he was not given advance notice of the resentencing and, hence, was not present at the resentencing hearing.  At the hearing on the motion to correct, the defendant orally sought to withdraw his pleas on the ground that the plea agreement was illegal.  To support this claim, he alleged that in a related habeas action, the state admitted that the agreement provided for a five year term of probation and that the habeas court made the same finding.  He also orally challenged the ten year term of probation to which he had been resentenced, claiming that it exceeded the agreed upon five year term.  After finding that the matter before it was limited to a rehearing on the sentencing, the court again sentenced the defendant in accordance with the remand order.  The defendant then filed this appeal.  He subsequently filed a motion to withdraw his pleas, which the trial court found to be moot.  On appeal, the defendant challenges the trial court's rulings and asserts that the state violated the plea agreement when it agreed to a five year term of probation but then requested that his sentence be increased to ten years.  The state argues that this court's review is limited to the trial court's implementation of the remand order.  Alternatively, it contends that the issues relating to the plea agreement are not reviewable because the trial court did not make any findings on these issues.  The defendant subsequently filed a motion to open the judgment in which he asked the trial court to find that the terms of the plea agreement were ambiguous or, in the alternative, that the agreement was for eight years, suspended after two years, with five years of probation.  The trial court denied the motion.  The defendant has challenged that ruling by way of an amended appeal.