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STATE OF CONNECTICUT v. DAVID CHRISTENSEN
(AC 36706)
Gruendel, Mullins and Dupont, Js.
Argued March 3—officially released May 12, 2015
(Appeal from Superior Court, judicial district of
Fairfield, Blawie, J. [motion to suppress]; Devlin, J.
[request to enter conditional plea of nolo contendere;
judgment].)
Dante R. Gallucci, for the appellant (defendant).
Adam E. Mattei, deputy assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, Cornelius P. Kelly, supervisory assistant
state’s attorney, and Iacopo Lash, certified legal intern,
for the appellee (state).
Opinion
GRUENDEL, J. The defendant, David Christensen,
appeals from the judgment of conviction, rendered after
a plea of guilty to one count of possession of child
pornography in the first degree in violation of General
Statutes § 53a-196d.1 On appeal, the defendant claims
that the trial court improperly (1) denied his motion to
suppress and (2) denied his conditional plea of nolo
contendere. The state argues that both claims are unre-
viewable on appeal because the defendant waived these
claims when he entered a voluntary and intelligent plea
of guilty. We agree with the state and affirm the judg-
ment of the trial court.
The following facts were found by the court. The
defendant was investigated by the Connecticut State
Police Computer Crime and Electronic Evidence Labo-
ratory for trafficking in images of child pornography.
The investigation began after records were obtained
from the defendant’s Internet service providers through
ex parte court orders.
On January 22, 2013, state police executed a search
of the defendant’s apartment. The police entered the
defendant’s residence and notified him that they were
there to execute a search warrant. David Aresco, a state
trooper, did not tell the defendant that he was under
arrest, nor did Aresco tell the defendant that he was not
free to leave. Aresco, however, did ask the defendant if
he had been doing anything on his computer that would
explain the police presence. The defendant responded:
‘‘very bad things.’’ While other police officers searched
the house, the defendant agreed to be interviewed in
Aresco’s police cruiser. The defendant was seated in
the front passenger seat and Aresco read aloud a police
form titled ‘‘Notice and Waiver of Rights.’’ Included in
this form was a recitation of the defendant’s Miranda
rights.2 The defendant initialed and signed the form,
acknowledging that he ‘‘understand[s] [his] rights and
waive[s] them freely and voluntarily with no threats or
promises made to [him].’’
Once he signed the form, the defendant freely admit-
ted to Aresco that he had used peer to peer or ‘‘P2P’’
filing sharing on his computer to search for, download,
and share images of child pornography. While the two
sat in the police cruiser, Aresco wrote a two page writ-
ten summary of what the defendant had told him. The
defendant later agreed to a polygraph examination,
which was conducted by another state trooper. After
the polygraph was completed, the defendant reviewed
the written statement, acknowledged that it was accu-
rate and truthful, and signed it after making a few
minor corrections.
The results of the police search revealed digital evi-
dence of child pornography on computer equipment
found in the defendant’s apartment. The defendant sub-
sequently was placed under arrest and charged with
possession of child pornography in the first degree.
On June 17, 2013, the defendant filed a motion to
suppress the following evidence: (1) a verbal statement
made by the defendant to the police at his residence,
(2) verbal statements made by the defendant to the
police in the police cruiser, and (3) the written state-
ment signed by the defendant at the state police station.
In November, 2013, the court denied the motion. In
denying the motion to suppress with respect to the first
statement, the court concluded that the defendant had
failed to establish that he was in police custody when
he made the initial statement in his apartment. In deny-
ing the motion to suppress as to the second set of
statements, the court concluded that those statements
were made after the defendant had been fully advised
of his Miranda rights. Finally, the court denied the
motion to suppress as to the written statement after
finding no evidence of deceptive or coercive police
tactics and that the defendant was fully cooperative
when he choose to provide the written statement.
On December 16, 2013, the defendant filed a condi-
tional plea of nolo contendere pursuant to General Stat-
utes § 54-94a.3 Pursuant to § 54-94a, a defendant may
seek a plea of nolo contendere conditional on the right
to appeal the court’s denial of a motion to suppress. In
order for the statute to be applicable, the court must
determine that the motion to suppress ‘‘would be dis-
positive of the case.’’ General Statutes § 54-94a. The
defendant argued that if his statements were excluded
from evidence, the state would not be able to prove
his guilt beyond a reasonable doubt. In support of his
position, the defendant stated that he repaired various
computers at his home and that the Internet protocol
address listed on the police search warrant did not
match his personal computer. On December 17, 2013,
the court denied the defendant’s request to enter a
conditional plea under § 54-94a on the basis that the
ruling on the motion to suppress would not be disposi-
tive on the case. Specifically, the court found that even
if the motion to suppress was granted, the state would
continue to pursue the charge against the defendant
using evidence of child pornography on the computer
found in the defendant’s home, as well as the fact that,
during the execution of the search warrant, police
observed child pornography being actively downloaded
on that computer.
On January 13, 2014, the defendant, after withdrawing
his prior plea, accepted a plea agreement and pleaded
guilty to one count of possession of child pornography
in the first degree in violation of § 53a-196d. In entering
his guilty plea, the defendant acknowledged that he
would be sentenced to between five and nine years of
imprisonment, to be determined by the court. At the
sentencing hearing, the defendant’s counsel urged the
court to consider the fact that the defendant had been
cooperative throughout the process. He stated that the
defendant ‘‘accept[ed] responsibility . . . from the
beginning’’ and that he hoped the court would ‘‘take
that into consideration.’’ The court stated that it had
considered the defendant’s lack of a prior criminal
record, that he had been cooperative with the police,
and that he had never engaged in direct contact with
any children. The court then sentenced the defendant
to the mandatory minimum sentence of ten years of
incarceration, suspended after five years, followed by
ten years of probation with special conditions. This
appeal followed.
On appeal, the defendant asserts two claims. First,
he argues that the court improperly denied his motion
to suppress the statements he had made to the police
officers prior to his arrest. Specifically, he claims that
his original statement was inadmissible because it was
made while he was in police custody, but before he
was issued a Miranda warning. He further argues that
his subsequent verbal and written statements were inad-
missible under the fruit of the poisonous tree doctrine.
His second claim is that, after denying his motion to
suppress, the court improperly denied his request to
enter a conditional plea of nolo contendere.4 Specifi-
cally, the defendant claims that the court erred when
it ruled that his motion to suppress was not dispositive
and, therefore, he had not met the statutory criteria
required for a conditional plea of nolo contendere. The
state argues that both claims were waived by the defen-
dant when he subsequently entered a plea of guilty. We
agree with the state, and conclude that the defendant’s
claims have been waived.
We now set forth the legal principles that guide our
resolution of this appeal. ‘‘As a general rule, an uncondi-
tional plea of guilty or nolo contendere, intelligently
and voluntarily made, operates as a waiver of all nonju-
risdictional defects and bars the later assertion of con-
stitutional challenges to pretrial proceedings.5 Tollett v.
Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 36 L. Ed.
2d 235 (1973); Parker v. North Carolina, 397 U.S. 790,
90 S. Ct. 1458, 25 L. Ed. 2d 785 (1970); McMann v.
Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d
763 (1970); Brady v. United States, 397 U.S. 742, 757,
90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970); State v. Martin,
197 Conn. 17, 25, 495 A.2d 1028 (1985); Consiglio v.
Warden, 160 Conn. 151, 166, 276 A.2d 773 (1970). There-
fore, only those issues fully disclosed in the record
which relate either to the exercise of jurisdiction by
the court or to the voluntary and intelligent nature of
the plea are ordinarily appealable after a plea of guilty
or nolo contendere. Boykin v. Alabama, 393 U.S. 238,
243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); 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); see also Practice Book § 712 [now § 39-20].’’6
(Emphasis omitted; footnotes altered.) State v. Madera,
198 Conn. 92, 97–98, 503 A.2d 136 (1985). In addition,
‘‘[i]t is not necessary for the trial court to canvass the
defendant to determine that [he] understands that [his]
plea of guilty or nolo contendere operates as a waiver
of any challenge to pretrial proceedings.’’ (Internal quo-
tation marks omitted.) State v. Johnson, 253 Conn. 1,
42, 751 A.2d 298 (2000).
‘‘In general, the only allowable challenges after [an
unconditional] plea are those relating either to the vol-
untary and intelligent nature of the plea or the exercise
of the trial court’s jurisdiction.’’ (Internal quotation
marks omitted.) State v. Hanson, 117 Conn. App. 436,
456, 979 A.2d 576 (2009), cert. denied, 295 Conn. 907,
989 A.2d 604, cert. denied, 562 U.S. 986, 131 S. Ct. 425,
178 L. Ed. 2d 331 (2010). Claims regarding a motion to
suppress or a conditional plea are not jurisdictional in
nature. See State v. Madera, supra, 198 Conn. 98 n.6
(jurisdictional defects are ‘‘those which would prevent a
trial from occurring in the first place’’ such as challenges
related to double jeopardy, court’s subject matter juris-
diction, or constitutionality of criminal statute). In this
case, the defendant’s claims are both nonjurisdictional
and unrelated to the validity of his guilty plea. Thus,
the defendant waived his right to raise these claims on
appeal when he knowingly and voluntarily entered his
guilty plea. We therefore decline to review the merits
of the defendant’s claims.7
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-196d (a) provides in relevant part: ‘‘A person is
guilty of possessing child pornography in the first degree when such person
knowingly possesses (1) fifty or more visual depictions of child pornogra-
phy . . . .’’
2
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
3
General Statutes § 54-94a provides: ‘‘When a defendant, prior to the
commencement of trial, enters a plea of nolo contendere conditional on the
right to take an appeal from the court’s denial of the defendant’s motion
to suppress or motion to dismiss, the defendant after the imposition of
sentence may file an appeal within the time prescribed by law provided a
trial court has determined that a ruling on such motion to suppress or motion
to dismiss would be dispositive of the case. The issue to be considered in
such an appeal shall be limited to whether it was proper for the court to
have denied the motion to suppress or the motion to dismiss. A plea of nolo
contendere by a defendant under this section shall not constitute a waiver
by the defendant of nonjurisdictional defects in the criminal prosecution.’’
4
After the court denied the request for a conditional plea, the defendant
withdrew his prior plea and entered a plea of guilty. Accordingly, we do
not consider the merits of whether the denial of a conditional plea, under
§ 54-94a, is a final judgment for purposes of appellate review.
5
On appeal, the defendant does not claim that his guilty plea was made
unintelligently or involuntarily.
6
Practice Book § 39-20 provides: ‘‘The judicial authority shall not accept
a plea of guilty or nolo contendere without first determining, by addressing
the defendant personally in open court, that the plea is voluntary and is not
the result of force or threats or of promises apart from a plea agreement.
The judicial authority shall also inquire as to whether the defendant’s willing-
ness to plead guilty or nolo contendere results from prior discussions
between the prosecuting authority and the defendant or his or her counsel.’’
7
In declining review of the defendant’s claim, we note the existence of
a rare exception to our general rule of unreviewability when good cause is
established. See, e.g., State v. Revelo, 256 Conn. 494, 503, 775 A.2d 260, cert.
denied, 534 U.S. 1052, 122 S. Ct. 639, 151 L. Ed. 2d 558 (2001) (case presented
rare exception to general rule of unreviewability of claims following plea
of nolo contendere); State v. Chung, 202 Conn. 39, 44–45, 519 A.2d 1175
(1987) (invoking supervisory authority to review claim not within purview
of § 54-94a). This is not such a case.