State of Connecticut v. Jossie Perez (2014)

MEMORANDUM OF DECISION—MOTION TO DISMISS

Factual and Procedural History

The matter before the Court is the motion to dismiss filed by the defendant, Jossie Perez, pursuant to Practice Book Section 41–8 and the constitution of Connecticut, article first, § 8. The defendant moves to dismiss one count of an information charging her with operation under suspension pursuant to General Statutes § 14–215(c),¹ and failure to obey a traffic light in violation of General Statutes § 14–299.²  On November 1, 2013, the court heard arguments on the motion at which time both parties had an opportunity to be heard.   Having considered the record, the court finds that the following facts are not in dispute.

On September 24, 2012, the defendant was issued a complaint ticket for the infraction of failure to obey a traffic light.   She was provided with an answer date of October 5, 2012 by which plead nolo contendere ³ to the infraction and submit payment in the amount of $129.00 to the clerk of the Superior Court, or to plead not guilty.   The defendant elected to plead nolo contendere and she rendered payment accordingly.   On or about November 8, 2012, the Office of the State Comptroller refunded the defendant her payment of $129.00, assigned her a court date, and charged her with both failure to obey a traffic control signal and operating under suspension.   The defendant requests that the court dismiss the charge of operating under suspension and accept her plea of nolo contendere to the charge of failure to obey a traffic light.

Discussion

The defendant argues that she elected to plead nolo contendere pursuant to a plea agreement that was accepted and entered.   She further contends the state lacks legal authority to file additional charges and is, in fact, estopped from pursuing further charges against her arising from this incident.   In essence she raises two arguments:  1) that she had a binding plea agreement that must be accepted and 2) that the additional charge of operating under suspension amounts to a violation of the Double Jeopardy Clause.   She relies upon Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), and State v. Nelson, 23 Conn.App. 215, 579 A.2d 1104, cert. denied, 216 Conn. 826, 582 A.2d 205 (1990), cert. denied, 499 U.S. 922, 111 S.Ct. 1315, 113 L.Ed. 248 (1991), in support of her proposition that “when a plea rests in any significant amount on a promise ․ of the prosecutor ․ such promise must be fulfilled” and, thus, the new charge of operating under suspension must be dismissed.   In response, the state argues that pursuant to the rules of practice, there was no binding plea agreement and the state may amend or add additional charges prior to trial.⁴

Plea agreements are an essential and necessary part of the administration of justice because they “[lead] to [the] prompt and largely final disposition of most criminal cases ․” Santabello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).  “When a guilty plea is induced by promises arising out of a plea bargaining agreement, fairness requires that such promises be fulfilled by the state.”  State v. Littlejohn, 199 Conn. 631, 644, 508 A.2d 1376 (1986).   The issue here, is whether the defendant and the state reached a binding plea agreement which precluded the state from rejecting her nolo contendere plea to the traffic signal violation and adding the charge of driving under suspension.

Relying on State v. Nelson, supra, 23 Conn.App. 215, the defendant claims that by returning the traffic ticket with payment, she accepted a plea offer that precludes the state from adding additional charges.   The defendant's argument rests on her presumption that she had reached a plea agreement with the state.   A plea agreement, however, presupposes that there were negotiations and a give and take between opposing parties.  “The validity of plea bargains depends on contract principles.”  State v. Revelo, 256 Conn. 494, 517, 775 A.2d 260, cert. denied, 534 U.S. 1052, 122 S.Ct. 639, 151 L.Ed.2d 558 (2001).   If a guilty plea is “induced by promises arising out of a plea bargaining agreement, fairness requires that such promises be fulfilled by the state.”  State v. Rivers, 283 Conn. 713, 724, 931 A.2d 185 (2007).   There is no evidence that such an exchange occurred here.

Here, the statements on the subject ticket in no way suggest that a plea bargain agreement is being advanced.⁵  Specifically, there is no language indicating the existence or extension of an offer, which is defined as “the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.”   1 Restatement (Second), Contracts § 24 (1981).   Rather, the ticket is a police issued citation charging the defendant with a traffic infraction.   In response to such a ticket, a defendant has the option of holding the state to its burden of proof to establish the alleged violation or, alternatively, to waive that right and simply pay the fine.   No discussion or bargaining occurs between the defendant and the state in this context.   Rather, if a defendant wishes to negotiate, they must first check the “not guilty” box, then come to court on their assigned court date and, at that point, attempt to negotiate with the state's attorney's office.   Here, the state made no promises and, thus, there was no reliance on the part of the defendant.   The court finds that no offer was extended or rescinded by the state, and there was no bargain.   Accordingly, neither the issuance of this complaint ticket for a traffic infraction nor the defendant's response thereto constituted the negotiation of a plea agreement.

Further, the defendant's reliance on State v. Nelson, supra, 23 Conn.App. 215, is misplaced because the facts giving rise to that case are incongruent with the facts at issue here.   In Nelson, the defendant pleaded nolo contendere to a criminal charge of manslaughter in the second degree with a motor vehicle pursuant to a plea agreement that was accepted by the court.   There, not only was the court involved in pretrial discussions, but, the defendant entered her guilty plea, and the court accepted the agreement.   At the time the plea entered, the victim was hospitalized and it was contemplated that the victim might not live.  Id., 216.   The victim eventually did die and, thereafter, the state served a warrant upon the defendant charging him with manslaughter with a motor vehicle.   The defendant filed a motion to dismiss claiming that double jeopardy barred the state from instituting this new charge and, additionally, that the state had waived any such right to do so by entering into the former agreement.   Ultimately, the Appellate Court held that the only appropriate remedy was specific performance of the plea agreement.  Id., 221.

This matter differs significantly from Nelson.   First, as explained above, a plea agreement between the parties was never reached and the state did not make any promises that induced the defendant to enter a plea of nolo contendere.   The issuance of a traffic ticket is neither a plea offer, an invitation to negotiate, or the beginning of a negotiation process.   Plea negotiations typically begin when the charged individual enters a not guilty plea and challenges that state's charges.

Considering for a moment the implications if the facts here did constitute a plea negotiation and agreement, Practice Book § 39–10 ⁶ indicates that, when rejecting a plea agreement, the judicial authority must inform the parties and allow the defendant an opportunity to withdraw their plea.   The centralized infractions bureau, which received the defendant's check, is an arm of the Superior Court.  General Statutes § 51–164n provides that “[t]here shall be a centralized infractions bureau of the Superior Court to handle payments and pleas of not guilty.”  (Emphasis added.).   The checks are to be made payable to the “clerk of the Superior Court ․” Id. The act of refusing to accept the defendant's payment was an act of the court, not the state.   Therefore, even if the facts here could be construed as offer and acceptance of a plea agreement, the court still had the right to refuse to accept such an agreement.   Practice Book § 39–10.   When a plea agreement is rejected by the court, the state and defendant must start over at the beginning.   Here, the centralized infractions bureau, an arm of the court, rejected the defendant's payment, which gave the state the discretion to charge her with operating under a suspended license after, presumably, that information became available to them.   This procedure is important because, as this case exemplifies, officers issuing citations are not necessarily aware of the collateral issues that may arise from the issuance of a traffic citation.   This procedure allows the state's attorney's office an opportunity to consider such citations in a broader context and to respond appropriately in the interest of justice.

Finally, the defendant's double jeopardy claim similarly lacks merit.   Prosecutors have enormous discretion in charging crimes prior to trial.   Massameno v. Statewide Grievance Committee, 234 Conn. 539, 663 A.2d 317 (1995).   Thus, even in the event that the defendant were entitled to specific performance of entry of her nolo contendere plea, the state still would not be precluded from instituting a successive prosecution charging operating under suspension because “[a] fine for a motor vehicle infraction is not a criminal penalty and ․ therefore, a proceeding in which such a fine may be assessed is not a criminal proceeding to which the Double Jeopardy Clause is applicable.”   (Emphasis added.)  State v. McCardle, supra, Superior Court, Docket No. 782829;  see also General Statutes § 53a–24.   Thus, the defendant's fundamental right against double jeopardy was not implicated by this ticket, as was the case in Nelson, where the defendant was charged initially with crimes involving criminal penalties.   Moreover, because the two particular violations at issue here do not involve the same elements and are, in fact, entirely separate offenses, double jeopardy would not prohibit the state from prosecuting the defendant for operating under suspension even if her plea to the infraction had been entered and the payment accepted.  State v. Murphy, 47 Conn.Sup. 258 [30 Conn. L. Rptr. 321] (2001).

Conclusion

For the foregoing reasons, the defendant's motion to dismiss is DENIED.

BY THE COURT

MELANIE L. CRADLE, Judge

FOOTNOTES

FN1. General Statutes § 14–215(c) provides:  “(1) Any person who operates any motor vehicle during the period such person's operator's license or right to operate a motor vehicle in this state is under suspension or revocation on account of a violation of subsection (a) of section 14–227a or section 53a–56b or 53a–60d or pursuant to section 14–227b, or in violation of a restriction or limitation placed on such person's operator's license or right to operate a motor vehicle in this state by the Commissioner of Motor Vehicles pursuant to subsection (i) of section 14–227a or pursuant to an order of the court under subsection (b) of section 14–227j, shall be fined not less than five hundred dollars or more than one thousand dollars and imprisoned not more than one year, and, in the absence of any mitigating circumstances as determined by the court, thirty consecutive days of the sentence imposed may not be suspended or reduced in any manner.“(2) Any person who operates any motor vehicle during the period such person's operator's license or right to operate a motor vehicle in this state is under suspension or revocation on account of a second violation of subsection (a) of section 14–227a or section 53a–56b or 53a–60d or for the second time pursuant to section 14–227b, or in violation of a restriction or limitation placed for the second time on such person's operator's license or right to operate a motor vehicle in this state by the Commissioner of Motor Vehicles pursuant to subsection (i) of section 14–227a or pursuant to an order of the court under subsection (b) of section 14–227j, shall be fined not less than five hundred dollars or more than one thousand dollars and imprisoned not more than two years, and, in the absence of any mitigating circumstances as determined by the court, one hundred twenty consecutive days of the sentence imposed may not be suspended or reduced in any manner.“(3) Any person who operates any motor vehicle during the period such person's operator's license or right to operate a motor vehicle in this state is under suspension or revocation on account of a third or subsequent violation of subsection (a) of section 14–227a or section 53a–56b or 53a–60d or for the third or subsequent time pursuant to section 14–227b, or in violation of a restriction placed for the third or subsequent time on such person's operator's license or right to operate a motor vehicle in this state by the Commissioner of Motor Vehicles pursuant to subsection (i) of section 14–227a or pursuant to an order of the court under subsection (b) of section 14–227j, shall be fined not less than five hundred dollars or more than one thousand dollars and imprisoned not more than three years, and, in the absence of any mitigating circumstances as determined by the court, one year of the sentence imposed may not be suspended or reduced in any manner.“(4) The court shall specifically state in writing for the record the mitigating circumstances, or the absence thereof.”.  FN1. General Statutes § 14–215(c) provides:  “(1) Any person who operates any motor vehicle during the period such person's operator's license or right to operate a motor vehicle in this state is under suspension or revocation on account of a violation of subsection (a) of section 14–227a or section 53a–56b or 53a–60d or pursuant to section 14–227b, or in violation of a restriction or limitation placed on such person's operator's license or right to operate a motor vehicle in this state by the Commissioner of Motor Vehicles pursuant to subsection (i) of section 14–227a or pursuant to an order of the court under subsection (b) of section 14–227j, shall be fined not less than five hundred dollars or more than one thousand dollars and imprisoned not more than one year, and, in the absence of any mitigating circumstances as determined by the court, thirty consecutive days of the sentence imposed may not be suspended or reduced in any manner.“(2) Any person who operates any motor vehicle during the period such person's operator's license or right to operate a motor vehicle in this state is under suspension or revocation on account of a second violation of subsection (a) of section 14–227a or section 53a–56b or 53a–60d or for the second time pursuant to section 14–227b, or in violation of a restriction or limitation placed for the second time on such person's operator's license or right to operate a motor vehicle in this state by the Commissioner of Motor Vehicles pursuant to subsection (i) of section 14–227a or pursuant to an order of the court under subsection (b) of section 14–227j, shall be fined not less than five hundred dollars or more than one thousand dollars and imprisoned not more than two years, and, in the absence of any mitigating circumstances as determined by the court, one hundred twenty consecutive days of the sentence imposed may not be suspended or reduced in any manner.“(3) Any person who operates any motor vehicle during the period such person's operator's license or right to operate a motor vehicle in this state is under suspension or revocation on account of a third or subsequent violation of subsection (a) of section 14–227a or section 53a–56b or 53a–60d or for the third or subsequent time pursuant to section 14–227b, or in violation of a restriction placed for the third or subsequent time on such person's operator's license or right to operate a motor vehicle in this state by the Commissioner of Motor Vehicles pursuant to subsection (i) of section 14–227a or pursuant to an order of the court under subsection (b) of section 14–227j, shall be fined not less than five hundred dollars or more than one thousand dollars and imprisoned not more than three years, and, in the absence of any mitigating circumstances as determined by the court, one year of the sentence imposed may not be suspended or reduced in any manner.“(4) The court shall specifically state in writing for the record the mitigating circumstances, or the absence thereof.”

FN2. General Statutes § 14–299 governs the use and observance of traffic signals..  FN2. General Statutes § 14–299 governs the use and observance of traffic signals.

FN3. General Statutes § 51–164n(c) provides, in part:  “If any person who is alleged to have committed an infraction or any violation specified in subsection (b) of this section elects to pay the fine and any additional fees or costs established for such infraction or violation, he shall send payment, by mail, or otherwise, to the Centralized Infractions Bureau, made payable to the “clerk of the Superior Court.”   Such payment shall be considered a plea of nolo contendere.”.  FN3. General Statutes § 51–164n(c) provides, in part:  “If any person who is alleged to have committed an infraction or any violation specified in subsection (b) of this section elects to pay the fine and any additional fees or costs established for such infraction or violation, he shall send payment, by mail, or otherwise, to the Centralized Infractions Bureau, made payable to the “clerk of the Superior Court.”   Such payment shall be considered a plea of nolo contendere.”

FN4. The defendant filed a memorandum in support of its motion to dismiss on July 19, 2013.   On November 1, 2013, the defendant filed an addendum to her motion to dismiss adding a claim pursuant to the due process clause of the fourteenth amendment of the United States constitution.   The state has not submitted a written response thereto..  FN4. The defendant filed a memorandum in support of its motion to dismiss on July 19, 2013.   On November 1, 2013, the defendant filed an addendum to her motion to dismiss adding a claim pursuant to the due process clause of the fourteenth amendment of the United States constitution.   The state has not submitted a written response thereto.

FN5. Black's Law Dictionary defines a ticket as a “citation,” which is further defined as “a police issued order to appear before a judge on a given date to defend against a stated charge, such as a traffic violation.”   Black's Law Dictionary (9th Ed.2009).   The ticket itself only states that “the officer complains that (name) did commit the following infraction,” the amount due, observations of the police officer to the prosecutor on the back of the ticket, and the mailing instructions..  FN5. Black's Law Dictionary defines a ticket as a “citation,” which is further defined as “a police issued order to appear before a judge on a given date to defend against a stated charge, such as a traffic violation.”   Black's Law Dictionary (9th Ed.2009).   The ticket itself only states that “the officer complains that (name) did commit the following infraction,” the amount due, observations of the police officer to the prosecutor on the back of the ticket, and the mailing instructions.

FN6. Practice Book § 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.”.  FN6. Practice Book § 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.”

Cradle, Melanie L., J.