State v. Badgett

512 A.2d 160, 200 Conn. 412, 1986 Conn. LEXIS 878
Supreme Court of Connecticut·Decided July 8, 1986·No. 12142·Published·Cited by 181 cases

Opinions

Shea, J.

The defendant, Earl Badgett, has appealed

from his conviction upon a conditional plea of nolo contendere to a substitute information charging him with illegal possession and transportation of heroin with intent to sell in violation of General Statutes (Rev. to 1981) § 19-480 (a).1 The defendant has raised two claims [414] of error: (1) that the trial court failed properly to ascertain whether his nolo contendere plea was knowingly, voluntarily and intelligently made; and (2) that the trial court erroneously denied his motion to suppress evidence seized as a result of the warrantless search of the automobile that he was driving at the time of his arrest.2 We find no error in the trial court’s acceptance of the defendant’s plea. Although we conclude that the evidence was illegally seized from the automobile, we remand the case to the trial court for further proceedings to consider whether the evidence would have been inevitably discovered legally.

The state recited the following factual basis for the defendant’s plea at the time it was accepted by the trial court: On March 14,1982, the defendant, driving a blue Cadillac Eldorado, was stopped for speeding while traveling north on Interstate 91 in Middletown by state trooper Peter Naples. After speaking with the defendant and obtaining his operator’s license, Naples returned to his police cruiser to prepare the speeding ticket. He was then informed by the police dispatcher that there were outstanding arrest warrants for the defendant. The defendant was arrested pursuant to [415] these warrants and was removed from his vehicle. A search of the vehicle was then conducted which uncovered a black bag containing a number of glassine envelopes holding a white powdery substance.

After laboratory tests established that the white substance in the black bag was heroin, the defendant was arrested on April 15, 1982, on charges of possession of narcotics, in violation of General Statutes (Rev. to 1981) § 19-481 (a), and possession of narcotics with intent to sell by a non-drug dependent person, in violation of General Statutes (Rev. to 1981) § 19-480a (a). By a substitute information dated June 22, 1982, the state abandoned the simple possession count and charged the defendant only with possession with intent to sell by a non-drug dependent person. The defendant pleaded not guilty and elected a jury trial.

On April 25, 1982, the defendant filed a motion to suppress the heroin seized during the warrantless search of the vehicle he was driving. On February 17, 1983, after a full evidentiary hearing, the trial court denied the defendant’s motion to suppress. On the same date, a second substitute information was filed, charging the defendant with illegal possession and transportation of heroin with intent to sell in violation of General Statutes (Rev. to 1981) § 19-480 (a), to which the defendant entered a conditional plea of nolo contendere, specifically reserving the right to appeal the court’s denial of his motion to suppress. General Statutes § 54-94a; State v. Madera, 198 Conn. 92, 98-99, 503 A.2d 136 (1985). On March 21,1983, the trial court sentenced the defendant to fifteen years imprisonment.

I

The defendant first claims that his plea of nolo contendere was obtained in violation of due process because the trial court failed to ascertain whether the [416] plea was knowingly, voluntarily and intelligently made.3 Specifically, the defendant asserts that the plea canvass was inadequate because the trial court did not advise him of his rights in accordance with the strictures of Practice Book §§ 7114 *6and 7125 and also in accordance with federal constitutional principles as enunciated in Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). Neither the Practice Book violations nor the constitutional claims were raised by the defendant by a motion to withdraw his plea before sentence was imposed by the trial court. [417] Practice Book § 720; State v. James, 197 Conn. 358, 360, 497 A.2d 402 (1985); State v. Martin, 197 Conn. 17, 495 A.2d 1028 (1985).

The acceptance of a plea of nolo contendere is governed by federal constitutional standards as well as state rules of practice. “ ‘Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination. . . [s]econd, is the right to trial by jury . . . [tjhird, is the right to confront one’s accusers.’ Boykin v. Alabama, [supra]. Further, under the Connecticut rules of practice, a trial judge must not accept a plea of nolo contendere without first addressing the defendant personally and determining that the plea is voluntarily made under Practice Book § 712 and that the defendant fully understands the items enumerated in Practice Book § 711. 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); State v. Battle, 170 Conn. 469, 473, 365 A.2d 1100 (1976); State v. Bugbee, 161 Conn. 531, 533, 290 A.2d 332 (1971).” State v. Martin, supra, 22-23.

Ordinarily, the defendant’s failure to raise a timely claim of error before the trial court renders the claim unreviewable on appeal. Practice Book §§ 854, 3063. “Only in the most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court.” State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973). We have recognized, however, as an “exceptional circumstance” within this doctrine, certain claims involving colorable deprivations of fundamental constitutional rights. State v. Roma, 199 Conn. 110, 113, 505 A.2d 717 (1986); State v. Evans, supra, 70.

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State v. Badgett, 512 A.2d 160, 200 Conn. 412, 1986 Conn. LEXIS 878 (Colo. 1986).

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