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STATE OF CONNECTICUT v. CRAIG KALLBERG
(AC 35800)
Gruendel, Alvord and Borden, Js.
Argued January 6—officially released June 16, 2015
(Appeal from Superior Court, judicial district of New
Britain, geographical area number fifteen, Alander, J.)
Alex Guziak, certified legal intern, with whom was
Alice Osedach, assistant public defender, for the appel-
lant (defendant).
Margaret Gaffney Radionovas, senior assistant
state’s attorney, with whom, on the brief, were Brian
Preleski, state’s attorney, and Kevin J. Murphy, former
supervisory assistant state’s attorney, for the appellee
(state).
Opinion
BORDEN, J. The defendant, Craig Kallberg, appeals
from a judgment of conviction, rendered after a jury
trial, of one count of larceny in the third degree as an
accessory in violation of General Statutes §§ 53a-8 and
53a-124 (a) (2), and one count of conspiracy to commit
larceny in the third degree in violation of General Stat-
utes §§ 53a-48 and 53a-124 (a) (2). The defendant claims
that: (1) the trial court improperly denied his motion
to dismiss all charges pursuant to a previous contractual
plea agreement; and (2) improper statements by the
prosecutor during closing argument deprived the defen-
dant of his right to due process. Because we agree
with the defendant on his first claim, we reverse the
judgment of the trial court.1
The jury reasonably could have found the following
facts, which are relevant to this appeal. On July 21,
2010, Michael Higgins and the defendant broke into a
number of storage lockers located in the basement of
an apartment building located at 92 West Main Street
in Plainville. Higgins and the defendant took a number
of items belonging to Robert Jerl, a resident of the
apartment building.2 Higgins was questioned by police
in regards to the theft and admitted to stealing the items
with the defendant. Both Higgins and the defendant
subsequently were arrested and charged in relation to
the theft.
The following procedural history also is relevant. The
defendant was charged with, inter alia, larceny in the
fourth degree and burglary in docket number CR-10-
0046439-T.3 The defendant and the state initially entered
into a plea arrangement whereby the state, pursuant to
Practice Book § 39-29, would enter a nolle prosequi
(nolle) in three cases then pending against the defen-
dant, including the case involving the storage locker
theft, and the defendant would plead guilty to posses-
sion of drug paraphernalia in a fourth case and pay
a fine of three hundred dollars. The plea agreement,
however, was never accepted by the pretrial court,
Strackbein, J., due to the judge’s unavailability.
On September 22, 2011, the defendant appeared
before the trial court, Kahn, J., assigned to his drug
paraphernalia case. After confirming that Judge
Strackbein was unavailable, the court held a hearing in
order to address the disposition of the charges in the
four cases in which the defendant was charged with
criminal violations (plea hearing). During that hearing,
the prosecutor entered a nolle in all four of the defen-
dant’s cases. The prosecutor articulated separate rea-
sons for each nolle. When addressing the docket
concerning the storage locker theft, the prosecutor
stated that it was not clear that the facts of the case
supported the necessary elements of a burglary charge,
and that the codefendant in the larceny was deceased.4
The prosecutor also noted that they could not locate
Jerl, and that the case was ‘‘unprovable.’’ When
addressing the drug paraphernalia charge, however, the
prosecutor stated the following: ‘‘So what we had here
was a proposed disposition to get rid of all of these
files with a plea of drug paraphernalia and a fine of $300.
That didn’t work out today because we were unable to
actually tap into Judge Strackbein. So I took the bull
by the horns and asked [the defendant] to make a dona-
tion of $271 to the [Connecticut Criminal Injuries Com-
pensation Fund (fund)]. . . . In light of that, what we
do each and every day over in [another geographical
area] is to nolle this case, as well. So, now [the defen-
dant’s] matters are all resolved, and we’ll move to the
next one.’’ (Emphasis added.) Judge Kahn noted the
entry of all four nolles.
Subsequently, pursuant to Practice Book §§ 39-29 and
39-31, the state withdrew the nolle on the charges per-
taining to the theft from the storage locker and initiated
a new prosecution.5 On April 12, 2012, the state charged
the defendant by way of a substitute long-form informa-
tion with one count of larceny in the third degree as
an accessory and one count of conspiracy to commit
larceny in the third degree. The defendant filed a motion
to dismiss on September 4, 2012, claiming that the
charges against him had been permanently disposed of
by a global plea agreement at the plea hearing.
Following a hearing on the motion to dismiss, the
trial court, Alander, J., concluded in an oral decision
that the record of the plea hearing did not factually
support the formation of a global plea agreement that
encompassed all of the defendant’s earlier cases.
Rather, the court concluded that the state entered a
specific and separate unilateral nolle pursuant to the
reasons given during the plea hearing, because the pros-
ecutor stated specific reasons other than the $271 pay-
ment to the fund for the entry of nolle. The court further
concluded that the $271 payment only applied to the
disposition of the possession of drug paraphernalia
charge, and that although the payment might constitute
a plea agreement for that charge, it did not encompass
the other cases. As a consequence, the court denied
the defendant’s motion to dismiss.
Following a jury trial, the defendant was convicted on
all charges. The court rendered judgment in accordance
with the jury’s verdict and sentenced the defendant to
a total effective sentence of four years of incarceration,
suspended after two years, and three years of probation.
This appeal followed.
At the outset, we set forth the applicable standard
of review of rulings on motions to dismiss. ‘‘Because a
motion to dismiss effectively challenges the jurisdiction
of the court, asserting that the state, as a matter of law
and fact, cannot state a proper cause of action against
the defendant, our review of the court’s legal conclu-
sions and the resulting denial of the defendant’s motion
to dismiss is de novo.’’ (Internal quotation marks omit-
ted.) State v. Ward, 306 Conn. 698, 707, 52 A.3d 591
(2012).
The present case is controlled by our Supreme
Court’s decision in State v. Rivers, 283 Conn. 713, 931
A.2d 185 (2007). ‘‘We begin with an overview of the law
governing plea agreements. [P]rinciples of contract law
and special due process concerns for fairness govern
our interpretation of plea agreements. . . . Thus, [t]he
validity of plea bargains depends on contract principles.
. . . Because [plea agreements] implicate the waiver
of fundamental rights guaranteed to persons charged
with crimes, [however, they] must . . . be evaluated
with reference to the requirements of due process. . . .
Therefore, [w]hen a guilty plea is induced by promises
arising out of a plea bargaining agreement, fairness
requires that such promises be fulfilled by the state.
. . .
‘‘When the contract language relied on by the trial
court is definitive, the interpretation of the contract is
a matter of law and our review is plenary. . . . When
evaluating a contract, [w]e accord the language
employed in the contract a rational construction based
on its common, natural and ordinary meaning and usage
as applied to the subject matter of the contract. . . .
[When] the language is unambiguous we must give the
contract effect according to its terms. . . . [When] the
language is ambiguous, however, we must construe
those ambiguities against the drafter. . . . Whether a
contract is ambiguous is a question of law over which
we exercise de novo review. . . .
‘‘In cases involving agreements like the plea
agreement at issue in the present case, the drafter of
the agreement, the state, generally holds substantially
superior bargaining power over the other party to the
agreement, the criminal defendant. As the Second Cir-
cuit [Court of Appeals] has explained, [b]ecause the
government ordinarily has certain awesome advantages
in bargaining power, any ambiguities in the agreement
must be resolved in favor of the defendant. . . . Thus,
the state, as the drafting party wielding disproportion-
ate power, must memorialize any and all obligations
for which it holds the defendant responsible, as well
as all promises that it has made for the purpose of
inducing a defendant to cooperate. The terms of the
agreement should be stated clearly and unambiguously,
so that the defendant, in assenting to waive certain
fundamental rights, knows what is expected of him and
what he can expect in return. Likewise, such clarity
ensures that the state knows what it may demand of
the defendant and what it is obligated to provide in
exchange for the defendant’s cooperation.’’6 (Citations
omitted; footnote omitted; internal quotation marks
omitted.) Id., 724–26; see also United States v. Pallad-
ino, 347 F.3d 29, 33 (2d Cir. 2003).
Applying these principles to the facts of the present
case, we conclude that the defendant’s motion to dis-
miss should have been granted. Whether we view the
plea agreement as a purely factual matter of the parties’
intent, or whether we view the agreement as ambiguous
and therefore to be construed in the defendant’s favor,
we arrive at the same conclusion. Put another way, to
the extent that we give deference to the trial court’s
factual determination of the parties’ intent, albeit con-
sistent with the due process concerns expressed in
State v. Rivers, supra, 283 Conn. 724–26, we are left
with the firm and definite conviction that, based upon
a review of the entire record, a mistake was made. To
the extent that the plea agreement was ambiguous, we
conclude that it must be construed in favor of the defen-
dant and against the state.
During the hearing before Judge Kahn, the prosecutor
clearly stated that the hearing was intended to solidify
a global plea agreement, eliminating all of the docketed
cases in which the defendant was named. He stated:
‘‘So, now [the defendant’s] matters are all resolved.’’
Because Judge Strackbein, who was originally expected
to record the plea agreement, was unavailable, the pros-
ecutor attempted to provide an analogous substitute
for the original plea agreement. The prosecutor noted
that he would ‘‘take the bull by the horns’’ to accommo-
date the unusual circumstances of the defendant’s
cases. This statement was made directly after the prose-
cutor noted that the parties had agreed on a global
disposition of all open cases in return for a plea and
a fine.
Reading that statement in context, it is clear to us
that the state intended to substitute the new all encom-
passing disposition for the original plea agreement,
albeit without explicitly so stating. This intent is further
circumstantially supported by the prosecutor’s contem-
poraneous request that the stolen property, which was
to be used as evidence in the storage locker case, be
returned to its rightful owner. ‘‘The destruction of any
evidence seized at a crime scene is consistent with a
belief that no further charges will be brought and lends
credence to the defendant’s claim that [he] reasonably
believed [his] plea ended [his] criminal liability.’’ State
v. Nelson, 23 Conn. App. 215, 220, 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. 2d 248 (1991).
It is readily apparent from the transcript of the plea
hearing that the prosecutor was attempting to adjust for
the unusual circumstance in which the original judge,
before whom the parties expected to dispose of the
defendant’s cases, was unavailable. The result was the
formation of an implied in fact plea agreement between
the prosecutor and the defendant. Although he did not
use the talismanic language ‘‘global plea agreement,’’
the prosecutor nonetheless essentially effectuated the
original plea agreement by entering nolles in all four
of the defendant’s cases in return for a monetary contri-
bution. We conclude, therefore, on the basis of our
examination of the total circumstances surrounding the
plea hearing before Judge Kahn, that the prosecutor
and the defendant entered into a clear plea agreement.
Furthermore, when implementing the ‘‘bull by the
horns’’ solution in the plea hearing, the prosecutor did
not seek explicitly to ensure that the defendant was
aware that the nolles were entered unilaterally and were
not part of a plea agreement. Without a clear, explicit
assertion by the prosecutor that the nolles were to be
entered separately and not all as part of an agreement,
it is a plausible reading of the record that the defendant
may have reasonably believed that the nolles entered
in all of his cases were in consideration for the $271
paid to the fund. The burden of the failure to alleviate
that uncertainty falls upon the state. State v. Rivers,
supra, 283 Conn. 725–26.
The state argues that the prosecutor’s stated reasons
for each nolle unrelated to the $271 contribution to the
fund constitute an indicator that he did not intend to
craft a global plea agreement, and as a result the trial
court’s denial of the motion to dismiss was not clearly
erroneous. We disagree. The state would require that
we construe the words of the prosecutor in a vacuum.
That position would construe contextual evidence,
gleaned from the entire record, in a dispute over the
meaning of a plea agreement, too narrowly. Our juris-
prudence makes it clear that contracts may be formed
by conduct that recognizes the existence of such an
agreement, even when there are no words of mutual
assent. See Vertex, Inc. v. Waterbury, 278 Conn. 557,
573–74, 898 A.2d 178 (2006); Rahmati v. Mehri, 188
Conn. 583, 587, 452 A.2d 638 (1982). The conduct of
the parties reveals to us that the defendant was offered
a plea agreement, which was to be accepted, but that
the unavailability of the judge before whom the plea
agreement was to be entered caused the prosecutor to
adopt an alternative means of disposing of the cases
in a substantially similar fashion in exchange for sub-
stantially similar consideration by the defendant. The
statements of the prosecutor reflect the intended result:
an equivalent substitute for the original plea agreement.
The state also argues that any ambiguity in the exis-
tence of a plea agreement should be resolved in its
favor, as an ambiguity would not make the trial court’s
ruling clearly erroneous. We disagree for two reasons.
First, to resolve ambiguities in the formation of plea
agreements in favor of the state would essentially
undermine the reasoning of our Supreme Court and the
Second Circuit Court of Appeals. See State v. Rivers,
supra, 283 Conn. 725–27; see also Innes v. Dalsheim,
864 F.2d 974, 979 (2d. Cir. 1988) (‘‘the state must bear
the burden for any lack of clarity in the agreement and
ambiguities should be resolved in favor of the defen-
dant’’), cert denied, 493 U.S. 809, 110 S. Ct. 50, 107 L.
Ed. 2d 19 (1989).
Second, the state essentially concedes in its brief that
some form of plea agreement existed between the state
and the defendant in which the state entered a nolle
for the drug paraphernalia charge in consideration of
the $271 paid to the fund. Thus the ambiguity rests not
in whether an agreement existed, but whether the terms
of the agreement for the $271 payment encompassed
the other outstanding charges against the defendant.
As we noted previously, we exercise plenary review in
determining whether a plea agreement is ambiguous
and require any ambiguities to be resolved in favor of
the defendant. State v. Rivers, supra, 283 Conn. 725;
Innes v. Dalsheim, supra, 864 F.2d 979.
The judgment is reversed and the case is remanded
to the trial court with direction to vacate the conviction
and to render judgment of dismissal.
In this opinion the other judges concurred.
1
This conclusion renders it unnecessary for us to consider the defendant’s
second claim.
2
The missing items included a hiking backpack, rollerblades, a duffle bag
filled with paintball equipment and a ghillie suit used in paintball games, a
bicycle, a snowboard, and a set of golf clubs and other golf equipment.
3
The record does not specify the exact charges that were pending under
that docket number. The prosecutor did not specify during the plea hearing
other than to note that there was a charge of larceny in the fourth degree
and ‘‘a bunch of burglaries.’’
4
At an unspecified point after his arrest but before the defendant’s Septem-
ber 22, 2011 hearing, Higgins passed away. The record does not specify the
cause or the date of his death.
5
The record does not disclose the reason that the state withdrew the nolle.
6
Although the plea agreement in Rivers was in writing and was drafted
by the state, we conclude that the same principles apply in the present case,
where the state articulated the plea agreement on the record.