State v. Madera

¶1The defendant has appealed from his conviction upon a conditional plea of nolo contendere to an indictment charging him with fourteen counts of arson murder in violation of General Statutes § 53a-54d,1 one for each of the victims who died in the fire of an apartment building in Waterbury. The trial *94court imposed on each count the statutorily mandated sentence of life imprisonment without eligibility for parole and structured the sentences on the fourteen counts as consecutive or concurrent to result in an effective sentence of two consecutive life terms, 120 years of imprisonment pursuant to General Statutes § 53a-35b, without eligibility for parole.2 The defendant has raised three claims of error: (1) the denial of his motion to suppress his statement to the police after he had been arrested at the scene of the fire; (2) the denial of his motion to dismiss which he based upon the claimed unconstitutionality of our arson murder statute, § 53a-54d, by virtue of its inclusion of reckless as well as intentional conduct as a sufficient basis to satisfy the “arson” element of the offense; and (3) the imposition of two consecutive terms of life imprisonment. We reach only the third of those issues, because on the record before us the condition upon which the plea was entered, that the defendant obtain review by this court of the rulings upon his motions to suppress and to dismiss, cannot be fulfilled. Accordingly, we remand the case to the trial court with direction to vacate the plea and for further proceedings.

¶2*95The state recited the following factual basis for the defendant’s plea at the time it was accepted by the trial court: In the early morning hours of July 5,1982, the defendant visited the apartment of his niece at 45-47 Prospect Street in Waterbury. The defendant argued with his niece concerning his drinking and also about a fire he had started, by his carelessness with a cigarette, on the couch in her apartment. After the defendant complied with her request to leave the apartment, he returned to borrow some matches. A short time later, the defendant set fire to some papers on the stairway of the building. Although the police and fire units of the city of Waterbury arrived on the scene quickly, the blaze had already consumed the building. The defendant was arrested at the scene of the fire at approximately 2 a.m. He was advised of his constitutional rights in English and asked if he understood them. The defendant replied that he did. The defendant was informed that he was under arrest and that he was accused of setting the fire. The defendant denied the accusation.

¶3The defendant was then transported to the Waterbury police station and again advised of his constitutional rights. He continued, when questioned, to maintain his innocence. Following this second inquiry, he became ill and fell to the floor of his cell. He was taken to the emergency room at St. Mary’s Hospital in Waterbury. The defendant’s condition was diagnosed by a staff physician at the emergency room as an “anxiety reaction” and he was discharged from the hospital. The defendant was advised of his rights for the third time at approximately 9 a.m., and he again denied that he had set the fire. After spending the remainder of the day in his cell, he was summoned for further questioning at approximately 8 p.m. The defendant was again advised of his rights. He indicated that he understood them, and that he wished to make a statement, *96expressly waiving his right to have a lawyer present. Because the defendant had some difficulty describing the incident in English, a Spanish speaking officer was instructed to assist him. At this time he was advised of his rights in Spanish, and he once again indicated that he understood them. At approximately 8:30 p.m., the defendant confessed to starting the fire by igniting some papers on the apartment stairway. His entire statement was given in English. After the statement was transcribed, he signed it and also initialed an additional paragraph noting that the document had been read back to him in both Spanish and English. The defendant also signed a form acknowledging that he had waived his constitutional rights.

¶4The defendant filed a motion to suppress his confession. At the hearing on the motion he claimed that the state had failed to meet its burden of proving by a preponderance of the evidence that he had effectively waived his Miranda3rights and that his confession was voluntary. In relation to those issues he presented psychiatric testimony concerning his mental condition. The trial court denied the motion. The defendant also filed a motion to dismiss the indictment claiming that the arson murder statute violates the federal constitution insofar as the arson which is an element of the crime of arson murder may be arson in either the second or third degree. He claimed that the statutorily mandated sentence would be disproportionate to the crime charged, violating the eighth amendment prohibition against cruel and unusual punishment. The trial court denied the motion to dismiss, concluding that the defendant’s motion was premature because it was based upon the speculative assumption that any verdict in this case would be predicated on either second or third degree arson. On September 8, 1983, the *97defendant entered pleas of nolo contendere to each of the fourteen counts of arson murder, reserving his right to appeal the court’s denial of his pretrial motions under General Statutes § 54-94a.4

¶5I

¶6As a general rule, an unconditional plea of guilty or nolo contendere,5 intelligently and voluntarily made, operates as a waiver of all nonjurisdictional defects and bars the later assertion of constitutional challenges to pretrial proceedings. Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973); Parker v. North Carolina, 397 U.S. 790, 90 S. Ct. 1458, 25 L. Ed. 2d 785 (1970); McMann v. Richardson, 397 *98U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970); Brady v. United States, 397 U.S. 742, 757, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970); State v. Martin, 197 Conn. 17, 25, 495 A.2d 1028 (1985); Consiglio v. Warden, 160 Conn. 151, 166, 276 A.2d 773 (1970). Therefore, only those issues fully disclosed in the record which relate either to the exercise of jurisdiction6 by the court or to the voluntary and intelligent nature of the plea are ordinarily appealable after a plea of guilty or nolo contendere. Boykin v. Alabama, 393 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); State v. Godek, 182 Conn. 353, 357, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981); see also Practice Book § 712.

¶7The legislature in 1982 altered the broad waiver of constitutional rights implicit in a plea of guilty or nolo contendere. Public Acts 1982, No. 82-17. General Statutes § 54-94a allows a defendant to enter a plea of nolo contendere, conditional on the right to take an appeal from the trial court's denial of a motion to suppress evidence based on an unreasonable search and seizure, or from the denial of a motion to dismiss. See State v. Martin, supra, 25 n.12; State v. Ross, 189 Conn. 42, 50 n.4, 454 A.2d 266 (1983); State v. Satti, 2 Conn. App. 219, 222, 477 A.2d 144 (1984). The defendant entered *99his plea under this statute. The record reveals that neither the trial court nor the state had any objection to this procedure.

¶8The threshold question on this appeal is whether the issues reserved for review by this court are within the ambit of § 54-94a. The defendant reserved two claims, one relating to the voluntariness of his confession, the other attacking the constitutionality of the arson murder statute. Clearly, the former is not within the purview of the statute. Under § 54-94a, an appeal is permitted from the denial of a motion to suppress “evidence based on an unreasonable search and seizure” only. The defendant in this case argues that his confession was illegally obtained because his lack of facility with the English language, as well as his alleged mental impairment, made it impossible for him to relinquish his rights effectively. Such a basis for a motion to suppress, implicating the fifth and sixth amendments, is not included in the statutory language allowing appeals only from the denial of a motion to suppress evidence obtained from an illegal search or seizure in violation of the fourth amendment. Moreover, there is nothing in the legislative history of the statute that would suggest such an intention.7

¶9The question remains whether we should exercise our inherent supervisory authority over the administration *100of justice; State v. Cohane, 193 Conn. 474, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984), citing United States v. Butler, 567 F.2d 885, 893 (9th Cir. 1978); and adopt a procedure that would allow criminal defendants to enter pleas based upon conditions other than those specified in § 54-94a.

¶10Prior to the advent in 1983 of federal rule of criminal procedure 11 (a) (2),8 which allows a conditional plea of guilty or nolo contendere with a reservation of the right to appeal rulings on “any specified pretrial motion,” the federal courts were divided on the permissibility of such a plea.9 (Emphasis added.) Although the adoption of the rule appears to have quieted some concerns that had arisen; United States v. Morrison, 449 U.S. 361, 363 n.1, 101 S. Ct. 665, 66 L. Ed. 2d 564, reh. denied, 450 U.S. 960, 101 S. Ct. 1420, 67 L. Ed. 2d 385 (1981); cf. Lefkowitz v. Newsome, 420 U.S. 283, 292, 95 S. Ct. 886, 43 L. Ed. 2d 196 (1975); McMann v. Richardson, supra, 770 n.13; it has not entirely stilled objections that the procedure (1) encourages appellate litigation; (2) militates against achieving finality in the disposition of criminal cases; (3) reduces the effectiveness of appellate review because of the absence of a *101full trial record; and (4) compels decisions on many issues, constitutional or otherwise, that would often be obviated by applying the harmless error doctrine in the light of a full trial record. Comment, “Conditional Guilty Pleas: Post Guilty Plea Appeal of Nonjurisdictional Issues,” 26 U.C.L.A.L. Rev. 360, 375 (1978). Balanced against these considerations is the obvious gain in judicial efficiency that is realized whenever a full trial can be avoided as well as the opportunity afforded to defendants to enter a plea without foregoing substantial constitutional claims. Lefkowitz v. Newsome, supra, 292.

¶11The conditional plea is susceptible to abuse, however, unless its use is carefully limited to significant issues the determination of which on appeal is likely to be dis-positive of the case. See United States v. Lace, 669 F.2d 46, 53 n.5 (2d Cir. 1982) (Newman, J., concurring). For this reason, the recent federal rule provides that the reserved issues must be specified in writing and that consent of the prosecutor as well as approval by the court are necessary for entry of a conditional plea. Fed. R. Crim. P., rule 11 (a) (2). Our statute, § 54-94a, does not contain these safeguards against potential abuse. The inherent power of the trial court to reject such a plea where it is clearly inappropriate affords some protection against misuse of the statutory procedure, but the court is not in a position to evaluate adequately such prosecutorial concerns as the significance of a particular ruling to the ultimate disposition of a case or the problems entailed by delaying a trial for the period necessary to obtain appellate review. The prosecutor is ordinarily much more familiar with the evidence to be presented that may not be affected by the ruling and also with the effect of delay incident to an appeal upon the availability of witnesses. Even where the prosecutor looks favorably on the conditional plea, as the state apparently does here, the parties, as well as the trial *102court, must be sure that the issues reserved can properly be reviewed on the record available. Though we perceive no problem in reviewing the ruling upon the admissibility of the defendant’s confession in this case, we have concluded, for reasons explained in part II of this opinion, that the issue of whether the arson murder statute violates the constitutional prohibition against cruel and unusual punishment cannot be properly resolved at this stage of the proceeding. The improvident reservation of that issue under the plea has resulted in a delay of more than two years in the ultimate disposition of this case.

¶12We are not inclined, therefore, on this occasion to resort to our general supervisory powers over appellate procedure; Practice Book §§ 3096, 3063, 3164; State v. Cohane, supra, 499; to allow the reservation under a conditional plea of rulings on pretrial motions beyond those expressly permitted by the statute.10 It would be unwise to invoke our authority by reviewing the denial of the motion to suppress the confession because the condition of the defendant’s plea was that he obtain an appellate determination on the merits both of that ruling and of the denial of his motion to dismiss which, as we have indicated, the record does not permit. We also are of the view that until a rule has been fashioned containing safeguards similar to those embodied in federal rule 11 (a) (2), the trial courts should not employ this procedural innovation except in situations plainly within the provisions of § 54-94a.11

¶13*103II

¶14Because § 54-94a permits a defendant to reserve for appeal the denial of a motion to dismiss, the second claim reserved by the defendant, attacking the constitutionality of the arson murder statute, appears to fall within the scope of the conditional plea statute. We conclude, nevertheless, that the contemplated appellate determination of that issue on the merits cannot be had on the state of the record before us.

¶15The defendant moved to dismiss the indictment insofar as the arson murder charges were predicated upon his commission of arson in the second or third degree rather than arson in the first degree. He claimed that, since such offenses are designated as class B and C felonies and require a less culpable state of mind than arson in the first degree, a class A felony, the penalty provided for arson murder is unconstitutionally disproportionate to the crime and, therefore, constitutes cruel and unusual punishment prohibited by the eighth amendment to our federal constitution. See Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). In denying this motion to dismiss, the trial court distinguished the Solemprecedent relied upon by the defendant because of the more serious nature of the *104offenses charged in this case, but ultimately held that, regardless of the merits of his unconstitutionality claim, the defendant could not before trial assume that a guilty verdict would necessarily be based upon arson in the second or third degree. The defendant has at no time raised a constitutional challenge to a conviction of arson murder predicated upon arson in the first degree.

¶16At the plea proceedings the state’s narrative of the factual basis for the plea indicated that the defendant had intentionally ignited some papers that he had spread on a stairway of an apartment building occupied by his niece as well as others and thus started a conflagration that resulted in the deaths of fourteen persons. The state referred also to the confession of the defendant in which he admitted visiting the apartment of his niece and starting a fire on a couch within the apartment because of his carelessness with a cigarette. In its response to a motion for disclosure of uncharged misconduct, the state had declared that evidence would be offered that the defendant had started a fire on the couch in the apartment of his niece shortly before he started the fire on the stairway that consumed the premises. The state has contended that the second fire was the sole cause of the death of the fourteen victims. The defendant, however, has argued that, since he does not dispute negligently starting a fire on the couch in the apartment of his niece, which may not have been wholly extinguished when he left the apartment and might have later flared up and consumed the building, a jury might find his conduct with a cigarette to constitute the recklessness required for arson in the third degree.12 Thus he maintains that, if the arson murder *105statute is construed to allow a person to be convicted for merely reckless conduct in causing a fire that results in a death, it is unconstitutional because the severe penalties provided are greatly disproportionate to the offense.

¶17This court does not embark upon the resolution of questions involving the validity of a statute in the absence of a practical necessity for their determination in the case presented and a sufficient factual background for their adjudication. Alexander v. Robinson, 185 Conn. 540, 548, 441 A.2d 166 (1981). “The best teaching of this Court’s experience admonishes us not to entertain constitutional questions in advance of the strictest necessity.” Parker v. Los Angeles, 338 U.S. 327, 333, 70 S. Ct. 161, 94 L. Ed. 144 (1949); see Moscone v. Manson, 185 Conn. 124, 134, 440 A.2d 848 (1981) (Healey, J., concurring); State v. DellaCamera, 166 Conn. 557, 560, 353 A.2d 750 (1974). Appropriate deference to a coordinate branch of government exercising its essential functions demands that we refrain from deciding constitutional challenges to its enactments until the need to do so is plainly evident. See Poe v. Ullman, 367 U.S. 497, 503-506, 81 S. Ct. 1752, 6 L. Ed. 2d 989 (1961); Tribe, American Constitutional Law § 3-10. The defendant never attempted in his motion for a bill of particulars to ascertain whether the state would rely upon the fire of the couch as the predicate for the arson murder charged in the indictment. It appears quite unlikely, nevertheless, that any occasion will arise in this case to require a determination of the constitutional issues raised by the defendant. The state declared at the plea proceeding that the arson relied upon in the indictment was based upon the fire the defendant had intentionally started on the stair*106way for the purpose of destroying the building, a position it has also maintained on appeal. Such a scenario, involving intentional conduct solely, would not implicate the recklessness that .is the gravamen of arson in the third degree. “Our penal code . . . expressly defines the terms ‘intentionally’ and ‘recklessly’ in such manner as to render them mutually exclusive.” State v. Ruiz, 171 Conn. 264, 271, 368 A.2d 222 (1976); see General Statutes § 53a-3 (11) and (13). Thus it appears that no occasion amounting to a “practical necessity” will arise in this case to require a determination of the constitutional issues raised by the defendant.

¶18Furthermore, the defendant cannot mount a constitutional challenge to a statute on the basis of its possible applications in circumstances not presented by his own case, unless first amendment freedoms are affected, a situation not claimed to exist here. State v. Pickering, 180 Conn. 54, 57-58, 428 A.2d 322 (1980); State v. Cuvelier, 175 Conn. 100, 111-12, 394 A.2d 185 (1978). “According to well-established principles, a [party] who challenges the constitutionality of a statute must prove that the statute has adversely affected a constitutionally protected right ‘under the facts of his particular case and not merely under some possible or hypothetical set of facts not proven to exist.’ ” Weil v. Miller, 185 Conn. 495, 501, 441 A.2d 142 (1981). “[Judicial power is to be exercised to strike down legislation, whether state or federal, only at the instance of one who is himself immediately harmed, or immediately threatened with harm, by the challenged action.” Poe v. Ullman, supra, 504; United Public Workers v. Mitchell, 330 U.S. 75, 90, 67 S. Ct. 556, 91 L. Ed. 754 (1947). In the absence of a clear indication in the record that the state is relying upon a claim that the defendant “recklessly” caused the destruction of the apartment building and thus committed arson in the third degree as the predicate offense for arson mur*107der, the defendant is not entitled to an adjudication of the constitutional claims raised in his motion to dismiss. As we have noted, the present record discloses that the state asserts the contrary, relying wholly upon a claim that the defendant intended to destroy or damage the apartment building when he started the fire on the stairway.

¶19Because the defendant’s appeal from the denial of the motion to dismiss, as well as his appeal from the motion to suppress his statement, are not properly renewable by this court, we are unable to fulfill the plea agreement entered into between the defendant and the prosecutor. The defendant expressly bargained for appellate review of both rulings of the trial court “on the merits.”13 Our inability to comply with this agreement constitutes a failure of consideration in the plea bargaining process. See Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971). Such a failure requires this court to vacate the defendant’s pleas on the ground that they did not “constitute knowing and intelligent voluntary waivers of constitutional rights made with sufficient awareness of the relevant circumstances and likely consequences.” United States v. Cox, 464 F.2d 937, 946 (6th Cir. 1972); see Boykin v. Alabama, supra;Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). A plea induced *108by a court-approved promise that could not be fulfilled cannot be viewed as voluntary. United States v. White, 583 F.2d 819, 826 (6th Cir. 1978); United States v. Swann, 574 F.2d 1316, 1318 (5th Cir. 1978); United States v. Hill, 564 F.2d 1179, 1180 (5th Cir. 1977). Because the defendant is foreclosed from raising the reserved issues before this court, and because the plea was given in reliance on his ability to pursue his appellate remedy, the judgment of conviction must be set aside and the matter remanded to the Superior Court for further proceedings.

¶20Ill

¶21The remaining claim of error, that the court imposed two consecutive terms of life imprisonment on the defendant, though presenting a constitutional question, does not involve the validity of the arson murder statute but the application of it by the trial court. The statute does not specify whether sentences imposed for its violation under separate counts must be consecutive or concurrent, leaving that determination to the judicial discretion of the court pursuant to General Statutes § 53a-37. The defendant contends that consecutive life sentences based upon a single act of arson violate the double jeopardy clause of the eighth amendment to the federal constitution as well as the prohibition against being “punished, except in cases clearly warranted by law” of article first, § 9, of our state constitution.14 Our reluctance to decide constitutional issues in advance of a present need for their determination is overcome in this instance by three factors: (1) the *109issues do not involve the invalidation of any legislative enactment; (2) there is a practical necessity to resolve the issues at this time, because they are likely to arise once more at the sentencing proceeding, even though the trial court is not obligated to impose the same sentence, in the event of another conviction of the defendant; and (3) ample precedent supports our practice of reviewing claims of error not essential to the disposition of the appeal that will probably recur when a case is remanded for further proceedings. State v. Morrill, 197 Conn. 507, 509, 498 A.2d 76 (1985); Maltbie, Conn. App. Proc. § 341; see State v. Couture, 194 Conn. 530, 566, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985).

¶22The defendant’s claim that the two consecutive life sentences imposed on him violate the double jeopardy clause of our federal constitution invokes the protection afforded by that provision against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). “With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983). As the defendant recognizes in his brief, the issue, though essentially constitutional, becomes one of statutory construction.

¶23We recently rejected a double jeopardy challenge to consecutive life sentences imposed for the felony murder of two of the victims of the same robbery on the ground that the reference to the death of “a person” *110in General Statutes § 53a-54c, our felony murder statute, was in the singular. State v. Couture, supra, 565. The same language, “causes the death of a person,” is used in the arson murder statute, § 53a-54d, to describe that element of the crime. “A fundamental purpose of the criminal law is to protect individual citizens from the criminal conduct of another. People are neither fungible nor amorphous. Where crimes against persons are involved, a separate interest of society has been invaded for each violation. Therefore, when two or more persons are the victims of a single episode there are as many offenses as there are victims.” State v. Couture, supra, 565-66; State v. Gunter, 132 Ariz. 64, 70, 643 P.2d 1034 (1982); State v. Irvin, 603 S.W.2d 121 (Tenn. 1980); Vigil v. State, 563 P.2d 1344, 1351 (Wyo. 1977).

¶24The defendant argues that an intention to impose the same punishment for the single act of arson regardless of the number of deaths caused may be gleaned from the legislative history of § 53a-54d as well as of the provision of our capital felony statute; General Statutes § 53a-54b (8); that makes a person susceptible to punishment by death who is convicted of the “murder of two or more persons at the same time or in the course of a single transaction.” We are unpersuaded. Nothing in the legislative history is of such significance as to overcome the reference in § 53a-54d to the death of a single person as an essential element of the crime of arson murder, a consideration we found persuasive in the parallel situation of felony murder. State v. Couture, supra, 565. The express reference to multiple murders in § 53a-54b as a basis for a capital felony does not militate against treatment of a single act of arson resulting in the death of multiple victims as separate offenses under § 53a-54d.

¶25*111There is error in accepting the plea of nolo contendere with conditions that could not be fulfilled under our procedures, the judgment is set aside and the case is remanded to the trial court for further proceedings.

¶26In this opinion the other judges concurred.