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STATE OF CONNECTICUT v. JOSE LUIS HERNANDEZ
(AC 41856)
Keller, Elgo and Pellegrino, Js.
Syllabus
The defendant, who had been convicted of assault in the first degree,
appealed to this court. Following the defendant’s conviction, the trial
court scheduled sentencing and granted a motion filed by the state to
increase the defendant’s bond, reasoning that the defendant faced a
substantial prison sentence and had a strong incentive not to appear at
sentencing. Thereafter, the defendant posted his bond and the court
granted his request for a thirty day continuance of his sentencing. The
defendant subsequently failed to appear for sentencing on the date that
he had requested, and the court sentenced the defendant in his absence.
Held that the defendant could not prevail on his unpreserved claim that
the trial court violated his constitutional right to be present at all critical
stages of the prosecution when it sentenced him in abstentia: the defendant was unable to demonstrate that a constitutional violation existed
because he waived his constitutional right to be present at sentencing
by deliberately absenting himself from the proceedings, and, while the
defendant’s failure to appear for sentencing alone satisfied waiver, additional evidence demonstrated that the defendant knew that he was
required to be present at sentencing and knowingly and voluntarily
relinquished his right to be present; the defendant specifically requested
a continuance of sentencing, and at no point asserted that he was
unaware that he needed to be present for sentencing or that he did not
know when sentencing was scheduled, and, as the court articulated,
the defendant demonstrated a cavalier attitude toward the sentencing
process, leaving the court unclear as to whether the defendant would
appear, and, accordingly, the court did not abuse its discretion in denying
the defendant’s later request, made on the day of sentencing through
defense counsel, to move sentencing back to later that day; moreover,
the court did not improperly fail to make an express finding that the
defendant had waived his right to be present, as the defendant did not
cite to any case law requiring the court to make an express finding of
waiver, and the court’s statement that the defendant demonstrated a
cavalier attitude was the functional equivalent of a finding of an implied
waiver; furthermore, the defendant did not cite any case law that demonstrated that the court was constitutionally required to advise him, prior
to sentencing, that sentencing would proceed in his absence if he did
not appear, the court was not required to notify the defendant preemptively that his case would proceed in his absence without any indication
that the defendant would not appear in court at some later time, as
such a requirement would give the defendant the power to control the
court by unilaterally preventing his case from proceeding.
Argued January 6—officially released May 5, 2020
Procedural History
Substitute information charging the defendant with
the crime of assault in the first degree, brought to the
Superior Court in the judicial district of New Haven and
tried to the jury before Blue, J.; verdict and judgment
of guilty, from which the defendant appealed to this
court. Affirmed.
Emily Graner Sexton, assigned counsel, with whom
were Megan Wade, assigned counsel, and, on the brief,
Matthew C. Eagan, assigned counsel, for the appellant (defendant).
Melissa Patterson, assistant state’s attorney, with
whom, on the brief, were Patrick Griffin, state’s attorney, and Stacey Haupt Miranda, senior assistant state’s
attorney, for the appellee (state).
Opinion
PELLEGRINO, J. The defendant, Jose Luis Hernandez, appeals from the judgment of conviction, following
a jury trial, of assault in the first degree in violation
of General Statutes § 53a-59 (a) (1). On appeal, the
defendant claims that the trial court violated his constitutional right to be present at all critical stages of his
prosecution when it sentenced him in absentia. Specifically, the defendant claims that the trial court violated
his constitutional right to be present at all critical stages
of his prosecution because it failed (1) to make an
express finding that the defendant waived his right to
be present, and (2) to notify the defendant, prior to
sentencing him, that sentencing would proceed in his
absence if he did not appear. We disagree and affirm
the judgment of the trial court.
The jury reasonably could have found the following
facts. On September 27, 2014, the defendant and Julio
Rodriguez engaged in a physical altercation outside of
Chico’s Market (market) on Ferry Street in New Haven,
which resulted in serious injuries to Rodriguez. Rodriguez was an employee of the market and the defendant
was a friend and frequent customer. On the day that
the altercation occurred, the defendant arrived at the
market at approximately 8 p.m. and stayed until the
market closed at 10 p.m. While at the market, the defendant drank beer and ate dinner with Rodriguez, Ferrer
(an employee), and Jose Gabin and Amparo Nicola, the
market’s owners.
The defendant and Rodriguez disagree about the
events that led to the physical altercation between
them. There is no dispute, however, that the defendant
brandished a knife during the altercation and, ultimately, stabbed Rodriguez twice: once in the abdomen
and once in the face.
It was not until April 18, 2015, that the defendant was
arrested for assaulting Rodriguez. After his arrest, the
defendant was released from custody on bond. A jury
found the defendant guilty of assault in the first degree
in violation of § 53a-59 (a) (1). The court accepted the
jury’s guilty verdict, ordered a presentence investigation report, and scheduled sentencing for January 26,
2018. On the basis of the guilty verdict and his prior
criminal history, which included multiple assault convictions, the state asked the court to increase the defendant’s bond. The court granted the state’s motion to
increase the bond and justified the $150,000 increase
by noting that a guilty verdict had been entered against
the defendant, that he faced a substantial prison sentence, and had a strong incentive not to appear at sentencing. Thereafter, the defendant posted the
$300,000 bond.
On January 26, 2018, the defendant asked that his
sentencing be continued for one month so he that
‘‘could get his affairs in order.’’ The court granted the
defendant’s request and sentencing was scheduled for
February 22, 2018, at 10 a.m. On February 22, however,
the defendant failed to appear. Ultimately, the court
sentenced the defendant in his absence.
The court, in support of its decision to sentence the
defendant in absentia, provided a summary of the case’s
procedural history. It explained that, on November 3,
2017, the defendant was convicted of assault in the first
degree and the case was scheduled for sentencing on
January 26, 2018. The defendant, however, asked the
court to put off sentencing for approximately one month
so he ‘‘could get his affairs in order.’’ Next, in reviewing
the presentence investigation report, the court noted
that the probation officer responsible for preparing the
report on the defendant made ‘‘several attempts to contact the [defendant] via mail, telephone, and fielded
visits to two of his last known addresses—places of
residence in West Haven and Hamden’’ to no avail. The
court explained that the probation officer noted in the
presentence investigation report that he reached out to
the defendant’s attorney in an effort to obtain updated
contact information for the defendant and ‘‘[t]o date,
[neither] the offender, nor his attorney [has] responded
to any of [his] efforts.’’ The court further stated, ‘‘[d]uring the home visit conducted at a West Haven address
on file, an [identified] Hispanic male reported that the
[defendant] did not reside at that address.’’
A few minutes later, the court then noted that the
parties had discussed at side bar the defendant’s failure
to appear and asked defense counsel to state for the
record the defendant’s whereabouts and reason for his
absence. Defense counsel stated that, ten minutes earlier, he had contacted the defendant on the telephone
and the defendant ‘‘indicated that he was running late,
that he still had a few items to take care of, and he
implored me to ask this court to move the sentencing
back to later today. I told him that pursuant to the
court’s hearing on the 26th of January that he had an
obligation to be here at 10 a.m. and he needs to be here.
He said he would do his best; however, there were
things that he had to do, and with that he just implored
me to ask the court to move it back to later today.’’
Thereafter, the court called the bond and ordered
the defendant’s rearrest, setting a bond on the rearrest
warrant in the amount of $2,000,000. The court stated
that, ‘‘under these circumstances,’’ it was inclined to
proceed with sentencing. Before sentencing the defendant, the court stated that ‘‘[t]his is an extremely serious
case’’; that the defendant ‘‘brought a knife to a fist fight’’;
that ‘‘this was an assault that could very easily have
ended in a death’’; and that the defendant has a ‘‘somewhat old, but very substantial history of assaults.’’
Lastly, the court stated, ‘‘I would not necessarily have
given him the maximum term, although I would have
given him a very substantial term under these circumstances for [the] reasons stated. But, here, he’s—by not
showing this morning he has demonstrated an
extremely cavalier attitude to the entire process, which
worries the court to no end. And, in fact, I don’t know
if it’s at all clear that he would appear this afternoon
or at any other time. And under these circumstances,
the court cannot regard him as anything other than
a dangerous menace to society. So, under all these
circumstances, the court imposes a sentence of twenty
years to serve.’’ This appeal followed. Additional facts
and procedural history will be set forth as necessary.
On appeal, the defendant claims that the trial court
violated his right to be present at all critical stages of
trial when it sentenced him in absentia because the
trial court failed to make an express finding that the
defendant waived his right to be present and to notify
the defendant that sentencing would proceed in his
absence if he did not appear. Consequently, the defendant argues that the sentence should be vacated and
the case remanded for resentencing. The defendant concedes that he failed to preserve this claim for appeal,
but argues that this claim is entitled to review under
State v. Golding, 213 Conn. 233,
567 A.2d 823 (1989).
In response, the state claims that the trial court did
not violate the defendant’s right to be present by sentencing him in absentia, and, therefore, the defendant
fails to satisfy the third prong of the Golding analysis.
Specifically, the state argues that the trial court is not
required to make an express finding that the defendant
waived his right to be present at sentencing and that
the trial court is not required to adequately inform the
defendant, prior to imposing his sentence, that the sentencing would proceed in his absence if he failed to
appear. We agree with the state.
We begin with the standard of review. A trial court’s
finding that a defendant has voluntarily absented himself from the proceedings is reviewed for an abuse of
discretion. See State v. Simino,
200 Conn. 113, 130,
509
A.2d 1039 (1986); State v. Edwards,
158 Conn. App. 119,
140,
118 A.3d 615, cert. denied,
318 Conn. 906,
122 A.3d
634 (2015).
‘‘It has long been settled that an accused enjoys a
right both at common law and pursuant to the sixth
amendment’s confrontation clause to be present at all
stages of trial. . . . It is also well settled that under
the due process clauses of the fifth and fourteenth
amendments a defendant must be allowed to be present
at his trial to the extent that a fair and just hearing
would be thwarted by his absence. . . . Nevertheless,
the defendant’s presence is not required when the right
is waived. Waiver in this context is addressed both in
our rules of practice and in our case law.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Vines,
71 Conn. App. 751, 767,
804 A.2d 877 (2002),
aff’d,
268 Conn. 239,
842 A.2d 1086 (2004).
Pursuant to Practice Book § 44-8: ‘‘The defendant
must be present at the trial and at the sentencing hearing, but, if the defendant will be represented by counsel
at the trial or sentencing hearing, the judicial authority
may: (1) Excuse the defendant from being present at
the trial or a part thereof or the sentencing hearing if
the defendant waives the right to be present; (2) Direct
that the trial or a part thereof or the sentencing hearing
be conducted in the defendant’s absence if the judicial
authority determines that the defendant waived the
right to be present; or (3) Direct that the trial or a part
thereof be conducted in the absence of the defendant
if the judicial authority has justifiably excluded the
defendant from the courtroom because of his or her
disruptive conduct . . . .’’ Consequently, the ‘‘trial
court is authorized to direct the trial or a part thereof
to be conducted in the absence of the defendant who
is represented by counsel if the court determines that
he has waived his right to be present.’’ State v.
Simino,
supra,200 Conn. 130.
‘‘Waiver is the intentional relinquishment of a known
right. Waiver does not have to be express, but may
consist of acts or conduct from which waiver may be
implied.’’ (Internal quotation marks omitted.) Talton v.
Warden,
171 Conn. 378, 385–86,
370 A.2d 965 (1976).
Moreover, ‘‘whether there has been an intelligent and
competent waiver of the right to presence must depend,
in each case, upon the particular facts and circumstances surrounding that case.’’ (Internal quotation
marks omitted.)
Id., 385.
The United States Supreme Court has stated that,
where ‘‘the accused is not in custody, the prevailing
rule has been, that if, after the trial has begun in his
presence, he voluntarily absents himself, this does not
nullify what has been done or prevent the completion
of the trial, but, on the contrary, operates as a waiver
of his right to be present and leaves the court free to
proceed with the trial in like manner and with like
effect as if he were present.’’ (Internal quotation marks
omitted.) Taylor v. United States,
414 U.S. 17, 19,
94
S. Ct. 194,
38 L. Ed. 2d 174 (1973).
Turning to the reviewability of an unpreserved constitutional claim under Golding, ‘‘a defendant can prevail
on a claim of constitutional error not preserved at trial
only if all of the following conditions are met: (1) the
record is adequate to review the alleged claim of error;
(2) the claim is of constitutional magnitude alleging
the violation of a fundamental right; (3) the alleged
constitutional violation . . . exists and . . . deprived
the defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond
a reasonable doubt. In the absence of any one of these
conditions, the defendant’s claim will fail. The appellate
tribunal is free, therefore, to respond to the defendant’s
claim by focusing on whichever condition is most relevant in the particular circumstances.’’ (Emphasis in
original; footnote omitted.) State v.
Golding, supra, 213
Conn. 239–40, as modified by In re Yasiel R.,
317 Conn.
773, 781,
120 A.3d 1188 (2015).
‘‘The first two [prongs of Golding] involve a determination of whether the claim is reviewable; the second
two . . . involve a determination of whether the defendant may prevail’’ on the merits. (Internal quotation
marks omitted.) State v. Brown,
279 Conn. 493, 500,
903 A.2d 169 (2006). Thus, Golding review of an unpreserved constitutional claim is available provided that
the defendant can ‘‘present a record that is [adequate]
for review and affirmatively [demonstrate] that his
claim is indeed a violation of a fundamental constitutional right.’’ (Internal quotation marks omitted.) State
v. Elson,
311 Conn. 726, 755,
91 A.3d 862 (2014).
The defendant’s claim is reviewable under Golding
because the record before us is adequate to review it
and the claim is of constitutional magnitude. We conclude, however, that the defendant cannot prevail on
the merits because he is unable to demonstrate that a
constitutional violation exists and that it deprived him
of a fair trial. Specifically, the defendant cannot prevail
because we conclude that he waived his constitutional
right to be present by deliberately absenting himself
from the sentencing proceedings, and, therefore, the
trial court did not violate the defendant’s constitutional
right to be present at sentencing.
The record in this case is sufficient to support the
conclusion that the defendant waived his right to be
present at sentencing. As articulated in Simino, a defendant may waive his right to be present ‘‘by simply failing
to show up for the trial through no fault of the state.’’
State v.
Simino, supra,200 Conn. 128. While the defendant’s failure to appear for sentencing alone satisfies
waiver in this case, there is additional evidence in the
record that shows that the defendant knew that he was
required to be present at sentencing and knowingly and
voluntarily relinquished his right to be present.
On November 3, 2017, when the defendant was convicted, the court, in granting the prosecutor’s request
to increase the defendant’s bond, specifically stated
that the defendant, ‘‘almost inevitably facing a . . .
substantial prison sentence . . . [had] some incentive
not to show up’’ at sentencing. (Emphasis added.) Here,
it would be disingenuous to suggest that the defendant,
who was at liberty on bail after the jury returned a
guilty verdict, did not know he had a duty to appear at
sentencing or that he did not know of the possibility
that the sentencing would continue in his absence. ‘‘The
right to release before trial is conditioned upon the
accused’s giving adequate assurance that he will stand
trial and submit to sentence if found guilty. . . . Like
the ancient practice of securing the oaths of responsible
persons to stand as sureties for the accused, the modern
practice of requiring a bail bond or the deposit of a
sum of money subject to forfeiture serves as additional
assurance of the presence of an accused.’’ (Citation
omitted.) Stack v. Boyle,
342 U.S. 1, 4–5,
72 S. Ct. 1,
96
L. Ed. 3 (1951).
Moreover, the record on February 22, 2018, clearly
indicates that the defendant was aware that sentencing
was scheduled for that day, yet he elected not to attend.
In fact, the record indicates that the defendant specifically asked for a continuance from January 26, 2018 to
February 22, 2018, because there were things he had
to ‘‘take care of.’’ At no point did the defendant assert
that he was unaware that he needed to be present for
sentencing or that he did not know when sentencing
was scheduled. See, e.g., State v.
Simino, supra,200
Conn. 130 (‘‘[t]he defendant thus had sufficient notice
of the time and location of the instructions to the jury
and that his presence was requested’’). Rather, the
record indicates that the defendant was aware that sentencing was scheduled for February 22, 2018, at 10 a.m.
but that he elected not to attend because there were
‘‘things he had to do,’’ which, notably, was the same
excuse he had used when asking for the January 26,
2018 continuance. Specifically, defense counsel stated
on the record that the defendant ‘‘indicated that he was
running late, that he still had a few items to take care
of and he implored me to ask this court to move the
sentencing back to later today. I told him that pursuant
to the court’s hearing on the 26th of January that he
had an obligation to be here at 10 a.m. and he needs
to be here. He said he would do his best; however, there
were things that he had to do, and with that he just
implored me to ask the court to move it back to later
today.’’ (Emphasis added.) As the court articulated, the
defendant ‘‘demonstrated an extremely cavalier attitude’’ toward the sentencing process and left the court
unclear as to whether ‘‘he would appear [that] afternoon
or at any other time.’’ In this scenario, the trial court
did not abuse its discretion by denying the defendant’s
request to move sentencing back to later that day. ‘‘Permitting a defendant unilaterally to prevent his case from
going forward would give him the license to defy the
law with impunity, and in the process, to paralyze the
proceedings of courts and juries.’’ State v. Drakeford,
202 Conn. 75, 81,
519 A.2d 1194 (1987). We conclude that
the defendant’s failure to appear constituted a waiver
of his right to be present at sentencing.
In support of his argument that the trial court violated
his right to be present at all critical stages of trial by
sentencing him in absentia, the defendant asserts that
the trial court is required to make an express finding
that the defendant waived his right to be present at
sentencing. The defendant, however, has not cited to
any case law that requires the trial court judge to
expressly make a finding of waiver. See State v. Drake-
ford, supra,202 Conn. 81 (‘‘[w]aiver does not have to
be express, but may consist of acts or conduct from
which waiver may be implied’’); see also State v. Durkin,
219 Conn. 629, 636,
595 A.2d 826 (1991) (‘‘[w]aiver
need not be express, but rather, may be implied from
the totality of the circumstances, including the [individual’s] conduct’’). Moreover, even though the court did
not use the word waiver, the trial court’s statement—
‘‘by not showing this morning he has demonstrated an
extremely cavalier attitude to the entire process’’—was
the functional equivalent of finding an implied waiver.
While we conclude that an express finding of waiver
is not required to sentence a defendant in absentia, the
court’s statement regarding the defendant’s ‘‘cavalier
attitude’’ was the functional equivalent of a finding of
an implied waiver.
The defendant also argues that the trial court was
required to adequately inform the defendant, prior to
imposing his sentence, that the sentencing would proceed in his absence. The defendant, however, has failed
to provide case law that demonstrates that the purportedly necessary advisement is constitutionally required.
The cases cited by the defendant are factually distinguishable from the present scenario. In his brief, the
defendant relies on State v. Gonzalez,
205 Conn. 673,
689,
535 A.2d 345 (1987), State v.
Drakeford, supra,202 Conn. 81, State v. Edwards, supra, 158 Conn. App.
142–43, and State v. Crawley,
138 Conn. App. 124, 133–
34,
50 A.3d 349 (2012), to support his argument that a
trial court has a duty to inform a defendant, prior to
sentencing him, that sentencing would proceed in his
absence. In those cases, however, the defendants were
removed from the courtroom due to disruptive behavior
or pursuant to their own request. Additionally, the
defendants in those cases were either in police custody
or present at trial and then elected to leave. Here, the
defendant was out on bond and unable to be found by
the probation officer who was preparing the presentence investigation report. The defendant knew he
needed to appear in court that day for sentencing, but
he elected not to appear because there were ‘‘things he
had to do.’’ The trial court is not required to preemptively notify a defendant that his case will proceed in
his absence without any indication that he would be
absent at some later time. This requirement would give
the defendant the power to control the court by unilaterally ‘‘prevent[ing] his case from going forward,’’
allowing him to ‘‘defy the law with impunity, and in the
process, to paralyze the [criminal] proceedings.’’ State
v.
Drakeford, supra,202 Conn. 81. Under the circumstances of this case, the trial court was not required to
notify the defendant that sentencing would proceed in
his absence. Because the defendant was aware of the
scheduled date and time for sentencing, had already
been granted a thirty day extension for sentencing, and
had spoken to his attorney ten minutes before the court
sentenced him and offered no legitimate excuse for his
absence, he waived his right to be present for sentencing, and, therefore, the court properly exercised its discretion in sentencing him in absentia. Accordingly, the
claim fails under Golding.
The judgment is affirmed.
In this opinion the other judges concurred.
