State v. Schlosser

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STATE OF CONNECTICUT v. JEFFREY
DANIEL SCHLOSSER
(AC 44270)
Elgo, Alexander and Harper, Js.

Syllabus

The defendant, who had been on probation in connection with his convic-
tions, in two cases, of risk of injury to a child and sexual assault in the
fourth degree, appealed to this court from the judgment of the trial
court revoking his probation in each case. The parties appeared at a
violation of probation hearing before the trial court, which noted that
the parties had agreed to an open recommendation for sentencing,
explained an open recommendation to the defendant, and canvassed
the defendant on his admission to a violation of probation in each case.
Held that the defendant could not prevail on his unpreserved claim that
the trial court violated his due process rights by failing to advise him of
his right to maintain a denial of his violation of probation: the defendant’s
admissions were made knowingly and voluntarily, as the court’s compre-
hensive canvass of the defendant informed him of the maximum sen-
tence, of his right to a violation of probation hearing and the opportunity
to present defenses at that hearing, and explained the state’s burden of
proof; moreover, the defendant indicated to the court that he was not
under the influence of drugs or alcohol, that he had discussed the
implications of his admissions with his attorney, and that he entered
his admissions of his own free will; furthermore, the defendant’s experi-
ence at his underlying criminal prosecution and a prior probation revoca-
tion proceeding supported the inference that his admissions were made
knowingly and voluntarily.
Argued November 8, 2021—officially released March 8, 2022

Procedural History

Two informations charging the defendant with viola-
tion of probation, brought to the Superior Court in the
judicial district of Hartford, geographical area number
twelve, and transferred to the judicial district of Hart-
ford, geographical area number fourteen, where the
defendant was presented to the court, Williams, J., on
admissions of guilt to violation of probation; judgments
revoking the defendant’s probation, from which the
defendant appealed to this court. Affirmed.
Justine F. Miller, assigned counsel, for the appellant
(defendant).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Sharmese Hodge, state’s attor-
ney, and Adam Scott, former assistant state’s attorney,
for the appellee (state).
Opinion

ELGO, J. The defendant, Jeffrey Daniel Schlosser,
appeals from the judgments of the trial court revoking
his probation and committing him to the custody of the
Commissioner of Correction for five years. On appeal,
the defendant claims that the court violated his due
process rights by failing to advise him of his right to
maintain a denial of his violation of probation. We affirm
the judgments of the trial court.
The following facts and procedural history are rele-
vant to this appeal. At the defendant’s sentencing hear-
ing on January 15, 2020, the prosecutor set forth the
following information concerning the defendant’s prior
criminal proceedings, which the defendant does not
dispute. On September 27, 2012, the defendant was con-
victed, in the first case, of risk of injury to a child in
violation of General Statutes § 53-21 (a) (1), and, in the
second case, of sexual assault in the fourth degree in
violation of General Statutes § 53a-73a, and risk of
injury to a child in violation of § 53-21 (a) (2). The
defendant received a total effective sentence of ten
years of incarceration, execution suspended after thirty
months, followed by ten years of probation.
After violating the terms of his probation, the defen-
dant’s probation was revoked and the court, on April
17, 2017, sentenced him to seven and one-half years of
incarceration, execution suspended after one year, and
probation ‘‘for the remainder of the time he owed.’’
Following his subsequent release from custody in the
spring of 2018, the defendant was arrested on October
30, 2018, and again charged with violating the conditions
of his probation. By December, 2019, the state had
extended at least one offer to the defendant to resolve
his violation of probation charge, which was not accepted.
Because the parties were unable to reach an agreement,
a violation of probation hearing was scheduled.
On January 15, 2020, the parties appeared at the viola-
tion of probation hearing before the court, Lynch, J.
At the onset of the hearing, defense counsel requested
a continuance in order to review newly obtained discov-
ery materials. The court denied that request and,
instead, took a recess in order to allow defense counsel
to review those materials and to consult with the defen-
dant. Instead of continuing with the violation of proba-
tion hearing, the parties appeared before the court,
Williams, J., which noted for the record that the parties
agreed to an ‘‘open recommendation’’ for sentencing.
The court explained an ‘‘open recommendation’’ to the
defendant and then canvassed the defendant on his
admission to the violation of probation. The court
revoked his probation and sentenced the defendant to
a term of five years of incarceration. This appeal fol-
lowed.
was not knowing and voluntary because the court failed
to explicitly inform him of his right to maintain a denial
of violation of his probation, in violation of his due
process rights and Practice Book § 39-10. We disagree.
The defendant concedes that he did not raise this
claim before the trial court and seeks review of his
unpreserved claim pursuant to State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by
In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).1
‘‘[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 constitu-
tional 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.’’
(Emphasis in original; footnote omitted.) State v. Gold-
ing, supra, 239–40. ‘‘Golding’s first two prongs relate
to whether a defendant’s claim is reviewable, and the
last two relate to the substance of the actual review.’’
State v. Dawes, 122 Conn. App. 303, 320, 999 A.2d 794,
cert. denied, 298 Conn. 912, 4 A.3d 834 (2010). We afford
review because the record is adequate for review and
the claim is of constitutional dimension. See State v.
Yusef L., 207 Conn. App. 475, 487, 262 A.3d 1017 (defen-
dant’s due process rights are implicated if plea is not
voluntarily and knowingly made), cert. denied, 340
Conn. 910, 264 A.3d 1002 (2021). We nevertheless con-
clude that the defendant’s claim fails to satisfy Gold-
ing’s third prong.
The following additional facts are relevant to the
defendant’s claim. When the defendant elected to forgo
his violation of probation hearing before Judge Lynch,
the parties appeared before the court and indicated that
the defendant wanted to admit to each of his violations
of probation.2 The court, defense counsel, and the
defendant participated in the following exchange:
‘‘The Court: The parties at a brief sidebar just a
moment ago informed the court that they had come to
an agreement. Under these circumstances the court
has indicated that if the defendant wishes to admit the
second violation of each probation, we could move to
sentencing but there would be no agreement. This would
be an open recommendation. The state and defense
may well jointly propose a certain disposition but it
would be up to this court . . . .3
‘‘The defendant, to be clear, would be exposed to
every day of his exposure on each violation of probation
which the court was led to believe is six and one-half
years in jail on each. So, as long as [the defendant]
knows and is fully aware that he is exposed to the
entirety of that six and one-half year sentence, then I
would be happy to accept his admissions and to hear
from each party as to sentencing. Is that the agreement?
‘‘[Defense Counsel]: It is, Your Honor, and just for
the record [the defendant] is fully aware of his exposure
for the six and one-half years in each of his violations
of probation.
‘‘The Court: And that’s true, sir?
‘‘[The Defendant]: That’s right.
‘‘The Court: You understand that?
‘‘[The Defendant]: Yes, yes I do, Your Honor.
‘‘The Court: And you understand that Judge Lynch
was prepared to . . . I understand that the state and
your lawyer saw Judge Lynch today, and do you under-
stand that Judge Lynch was prepared to hear your viola-
tion of probation hearing today, sir?
‘‘[The Defendant]: Yes, I do.
‘‘The Court: And it would have been the state’s burden
to prove by a preponderance of the evidence that it’s
more likely than not that you violated each of these
probations. That would have been their burden. Do you
understand that, sir?
‘‘[The Defendant]: Yes, I do.
‘‘The Court: And was the state prepared to put on
evidence today, counsel?
‘‘[The Prosecutor]: Yes, Your Honor.
‘‘The Court: All right, and so at that hearing your
lawyer could have presented defenses on your behalf
and could have contested the charges. Do you under-
stand that, sir?
‘‘[The Defendant]: Yes, I do.
‘‘The Court: All right. And you still wish to go forward
with sentencing today?
‘‘[The Defendant]: Yes.
‘‘The Court: Okay, and each counsel is prepared
for that?
‘‘[The Prosecutor]: Yes, Your Honor.
‘‘[Defense Counsel]: Yes, Your Honor.’’
The defendant then entered an admission to each
violation of probation. The court continued its canvass:
‘‘The Court: Sir, have you taken any drugs, alcohol
or medication that affects your thinking?
‘‘[The Defendant]: No, sir.
‘‘The Court: Have you had enough time to talk to
your lawyer about this decision?
‘‘[The Defendant]: Yes, Your Honor.
‘‘The Court: Has your attorney explained to you all
the rights to a violation of probation hearing that you
are giving up by admitting the violations today, sir?
‘‘[The Defendant]: Yes, Your Honor.
‘‘The Court: Has she also explained to you the evi-
dence that the state says it has against you, what the
state would have to prove in order to [be] found in
violation of your probation and the maximum penalty
you could have gotten?
‘‘[The Defendant]: Yes, Your Honor.
‘‘The Court: You heard what the state says you did
to cause you to violate probation. Do you agree that’s
basically true?
‘‘[The Defendant]: I would be honest, I don’t agree
with it but it’s what, you know, I’ll accept it.
‘‘The Court: Do you agree that you have violated your
probation?
‘‘[The Defendant]: Yes.
‘‘The Court: Has anyone threatened or forced you to
admit that second violation of your probations?
‘‘[The Defendant]: No, Your Honor.
‘‘The Court: Are you doing this of your own free
will, sir?
‘‘[The Defendant]: Yes, Your Honor.
‘‘The Court: Once I accept your admissions, you can-
not take them back without permission from the court?
Do you understand that, sir?
‘‘[The Defendant]: Yes, Your Honor.’’
‘‘A determination as to whether a plea has been know-
ingly and voluntarily entered entails an examination of
all of the relevant circumstances. . . . [W]e conduct a
plenary review of the circumstances surrounding [a]
plea to determine if it was knowing and voluntary.’’
(Internal quotation marks omitted.) Almedina v. Com-
missioner of Correction, 109 Conn. App. 1, 6, 950 A.2d
553, cert. denied, 289 Conn. 925, 958 A.2d 150 (2008).
In State v. Yusef L., supra, 207 Conn. App. 475, this
court addressed the issue of whether a defendant’s plea
was knowingly or voluntarily made after reviewing the
canvass conducted by the court. The court observed
that ‘‘the [trial judge] made it clear to the defendant
that he had the right to plead not guilty [and] explicitly
stated that if the defendant did not plead guilty he would
proceed to trial, at which time he potentially could
be found guilty,’’ and that ‘‘the defendant, through his
responses, indicated that he understood that he had the
right to plead not guilty.’’ Id., 488. This court additionally
highlighted the defendant’s past experience with the
criminal justice system as a factor in support of its
finding that the defendant’s plea was knowing and vol-
untary. Id., 489. For those reasons, the court concluded
that the defendant had failed to satisfy the third prong
of Golding. Id., 490.
In the present case, the record similarly reflects that
the defendant’s admission was knowing and voluntary.
The court informed the defendant of the maximum sen-
tence, that the defendant had the right to a violation
of probation hearing and the opportunity to present
defenses at that hearing, and explained the burden of
proof that the state would need to establish for him
to be found in violation of probation. The defendant
indicated to the court that he was not under the influ-
ence of drugs or alcohol, that he had discussed the
implications of his admission with his attorney, and
that he entered his admission ‘‘of [his] own free will
. . . .’’ Moreover, the defendant’s experience at both his
underlying criminal prosecution and the prior probation
revocation proceeding, at which he had admitted to a
probation violation, further supports the inference that
his admission in the present case was knowingly and
voluntarily made. See, e.g., State v. Yusef F., supra, 207
Conn. App. 489.
More generally, we emphasize that the defendant
came to the sentencing hearing directly from his viola-
tion of probation hearing. He was afforded and was
prepared to exercise his right to a contested hearing,
which necessarily informs our analysis. Cf. State v. Ker-
lyn T., 337 Conn. 382, 393, 253 A.3d 963 (2020) (although
formulaic canvass is not required, reviewing court must
inquire into ‘‘totality of the circumstances’’ surrounding
waiver of right to jury trial (internal quotation marks
omitted)). In light of this, as well as the court’s compre-
hensive canvass, the defendant’s past history with the
criminal justice system and the defendant’s assertions
that he understood the consequences of entering his
admissions, the defendant’s specific claim that his
admission was not knowing and voluntary must fail.
For the foregoing reasons, we conclude that the
defendant has failed to establish the existence of a
constitutional violation. His due process claim, there-
fore, fails Golding’s third prong.
The judgments are affirmed.
In this opinion the other judges concurred.
1
The defendant alternatively argues that reversal is warranted under the
plain error doctrine, codified in Practice Book § 60-5, which ‘‘is an extraordi-
nary remedy used by appellate courts to rectify errors committed at trial
that, although unpreserved [and nonconstitutional in nature], are of such
monumental proportion that they threaten to erode our system of justice
and work a serious and manifest injustice on the aggrieved party.’’ (Internal
quotation marks omitted.) State v. Jamison, 320 Conn. 589, 595–96, 134
A.3d 560 (2016). In light of our conclusions that the present claim fails on
its merits under the bypass rule of Golding and that the court properly
canvassed the defendant on his admission, the defendant cannot demon-
strate that plain error exists. See, e.g., State v. Holmes, 78 Conn. App. 479,
487, 827 A.2d 751 (because ‘‘[t]he court’s canvass . . . adequately informed
[the defendant] that he possessed a right against self-incrimination that
guaranteed that he need not incriminate himself by entering a plea of guilty
. . . the defendant has failed to establish the existence of plain error’’),
App. 645, 659, 725 A.2d 333 (‘‘[p]lain error review is not warranted . . .
because the defendant has failed to show that his guilty plea was not entered
knowingly or voluntarily’’), cert. denied, 248 Conn. 905, 731 A.2d 310 (1999).
Additionally, insofar as the defendant relies on the court’s alleged failure
to comply with Practice Book § 39-10 in arguing that his unpreserved claim
merits plain error review, this reliance is mistaken. Section § 39-10 provides:
‘‘If the judicial authority rejects the plea agreement, it shall inform the parties
of this fact; advise the defendant personally in open court or, on a showing
of good cause, in camera that the judicial authority is not bound by the plea
agreement; afford the defendant the opportunity then to withdraw the plea,
if given; and advise the defendant that if he or she persists in a guilty plea
or plea of nolo contendere, the disposition of the case may be less favorable
to the defendant than that contemplated by the plea agreement.’’ By its
terms, the provision applies only when a plea has already been accepted.
See King v. Commissioner of Correction, 193 Conn. App. 61, 78, 218 A.3d
1051 (2019) (‘‘§ 39-10 only applies after a plea has been initially accepted
by the court’’ (emphasis added)). Despite the defendant’s assertion to the
contrary, the record makes clear that the court would not consider accepting
an admission without the flexibility of an open recommendation with respect
to sentencing, a condition agreed to by the defendant with advice of counsel.
Because there was no agreement between the parties and the court as to
the disposition prior to the court’s canvass and acceptance of the defendant’s
admission, § 39-10 is inapplicable to the present case.
2
At the violation of probation hearing, Judge Lynch explained to the
parties that, because the hearing had already commenced, the defendant
would have to appear before a different judge if he decided to admit to a
violation of his probation.
3
The prosecutor subsequently indicated to the court during the disposi-
tional phase that the parties agreed to jointly recommend a term of three
years of incarceration.