STATE v. KENNETH MYERS, SC 17925

Judicial District of Danbury

 

      Criminal; Part B Informations; Whether Trial Court Committed Plain Error by Sentencing Defendant as a Repeat Offender in the Absence of a Guilty Plea or a Trial as to the Part B Information.  The defendant was charged with possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a).  In a part B information, the state charged the defendant with being a repeat offender by virtue of a previous conviction under § 21a-277 (a), and it therefore sought an enhanced penalty.  After the jury found the defendant guilty of violating § 21a-277 (a), his attorney addressed the part B information, stating that she was not sure that § 21a-277 (a) required the filing of a part B information.  She further opined that, after the completion of a presentence investigation report, the penalty enhancement issue could be resolved by the court at the sentencing hearing.  She accordingly waived a trial on the part B information, and at the subsequent sentencing hearing, the court determined that because the defendant previously had been convicted of violating § 21a-277 (a), it would sentence him as a repeat offender as to that charge.  On appeal, the defendant, seeking plain error review, raised the unpreserved claim that, in contravention of Practice Book § 42-2, the trial court improperly convicted and sentenced him as a repeat offender in the absence of a guilty plea or a trial as to the part B information.  The Appellate Court (101 Conn. App. 167) agreed and reversed the trial court's judgment as to the part B information.  It decided that Practice Book § 42-2 contains mandatory language, which required the trial court to put the defendant to plea on part B of the information, accord him a trial on the issue of his possible status as a repeat offender, and make a finding as to whether he was, in fact, a repeat offender.  It accordingly held that, because these requirements were not satisfied, the trial court committed plain error, thereby necessitating the vacation of the defendant's sentence.  It also rejected the state's contention that the defendant, through his attorney, waived his right to a separate trial regarding the part B information.  In doing so, it reasoned that, under well established constitutional jurisprudence, the defendant himself must personally enter a plea.  In this appeal, the Supreme Court will determine whether the Appellate Court's decision was proper.