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STATE v. KALLBERG—DISSENT
ESPINOSA, J., dissenting. The majority concludes
that the disposition agreement between the defendant,
Craig Kallberg, and the state, as reflected in the tran-
script of the September 22, 2011 disposition hearing,
was ambiguous as to whether the defendant’s charitable
contribution of $271 was intended to be in exchange
for the nolle prosequi of the charges that the state has
reinstituted in the present case. Construing that ambigu-
ity in favor of the defendant, the majority concludes
that the state agreed to the nolle in exchange for consid-
eration. Accordingly, it holds that the charges in the
present case should have been dismissed. I would con-
clude that, to the contrary, the transcript of the disposi-
tion hearing clearly and unambiguously demonstrates
that the defendant agreed to make the charitable contri-
bution in exchange for the nolle of the charges in a
separate case and that the nolle of the charges that
were reinstituted in the present case was unilateral. I
would conclude, therefore, that there was no bar to
bringing the charges in the present case.1 Accordingly,
I dissent.
As the majority indicates, in September, 2011, the
defendant had four separate cases pending against him
with separate docket numbers. For purposes of this
dissenting opinion, I refer to the cases as: (1) the driving
case (docket number MV-10-0228488); (2) the drug case
(docket number CR-10-0046914); (3) the breach of the
peace case (docket number CR-10-0047442); and (4)
the burglary case (docket number CR-10-0046439-T, the
underlying facts of which form the basis of the charges
in the present case). With the assistance of Judge
Strackbein, the defendant and the state entered into a
tentative plea agreement pursuant to which the defen-
dant agreed to plead guilty to possession of drug para-
phernalia in the drug case and to pay a fine of $300, in
exchange for which the state would enter nolles in the
other three cases.2 When the parties appeared in court
to enter the plea on September 22, 2011, however, Judge
Strackbein was unavailable. Accordingly, Judge Kahn,
who was under the understanding that she was going
to be the trial judge in this case, heard the matter. The
state has represented to this court, and the defendant
does not dispute, that, because Judge Strackbein was
unavailable to take the guilty plea, and because Judge
Kahn was reluctant to become involved in plea negotia-
tions because she would be trying the case,3 the parties
agreed that entering a guilty plea on the drug charge
would not be an option if they were to resolve the
matter at that time. Accordingly, they reached a new
disposition agreement under which all of the cases
would be nolled.
Pursuant to Practice Book § 39-29,4 the prosecutor
explained the new disposition agreement to Judge Kahn
as follows. First, the prosecutor read into the record
the docket numbers of the four cases that were to be
addressed at the disposition hearing, in the order set
forth previously. With respect to the first case, the driv-
ing case, which involved charges of driving without
insurance and driving unreasonably fast, the prosecutor
explained that ‘‘[w]hat we do in those cases is make
sure that the insurance is gotten, if in fact he’s driving
an automobile, and the license is still valid or is valid.
[The defendant] says that . . . he was operating with
a valid motor vehicle license.’’ Accordingly, the prosecu-
tor explained, ‘‘[t]he state is entering a nolle on that.’’
Judge Kahn immediately responded, ‘‘Nolle is noted.’’
With respect to the third case, the breach of the peace
case, the prosecutor explained that the complainant in
that case had been incarcerated and did not want to
pursue the matter. Accordingly, he explained ‘‘we’re
entering a nolle in that matter based on the victim’s
wishes.’’ Judge Kahn again responded immediately,
‘‘Nolle noted.’’ The prosecutor then stated that he would
address the second case that he had mentioned at the
outset, the drug case, at the end of the hearing.
With respect to the burglary case, the prosecutor
explained that the state had serious doubts as to
‘‘whether [it] could ever prove the breaking and entering
or the illegal entry . . . .’’5 In addition, the defendant
had given up possession of the items at issue to the
police. Accordingly, the prosecutor explained, ‘‘[t]he
state’s entering a nolle in that file.’’ Yet again, Judge
Kahn immediately responded, ‘‘Nolle noted.’’
Finally, with respect to the drug case, the prosecutor
explained that the matter involved ‘‘a simple possession
of narcotics,’’ and that another individual had admitted
to possessing some of the narcotics at issue. The prose-
cutor further explained that, as the result of these cir-
cumstances, the defendant originally had agreed to
plead guilty to possession of drug paraphernalia and to
pay a fine of $300, in exchange for which the state
would nolle the other three cases. The prosecutor then
explained that, because of the concerns over the entry
of a guilty plea raised by Judge Strackbein’s absence,
the defendant had agreed that he would instead contrib-
ute $271 to the ‘‘victim’s fund,’’6 ‘‘in light of [which the
state agreed] . . . to nolle this case, as well.’’7 Judge
Kahn responded that she would ‘‘note the nolle on that.’’
In my view, the foregoing makes it inescapably clear
that each of the four cases against the defendant was
nolled for an entirely distinct reason, and only the drug
case was nolled in exchange for the $271 charitable
contribution. As I have explained, Judge Kahn noted
that nolles in the driving case, the breach of the peace
case and the burglary case had been entered before the
prosecutor even mentioned the disposition of the drug
case. In addition, Judge Kahn expressly stated at the
September 22, 2011 hearing: ‘‘I do know [that the prose-
cutor’s] nature is not to enter nolles lightly and so it’s
not his practice to nolle cases unless there’s a good
reason, so I’m going to take him at his word that he
couldn’t prove the [burglary] case.’’8 Moreover, while
he was attempting to explain to Judge Kahn why a
previous guilty plea offer in the burglary case, of which
Judge Strackbein had been aware, was no longer in
effect, the prosecutor stated: ‘‘Perhaps the drug case
changed significantly when [the codefendant] died and
[the victim] was unavailable.9 So I don’t have a larceny
four . . . .’’ (Footnote added.) Judge Kahn responded,
‘‘I appreciate that you’ve made a full record of it . . . .’’
It is clear, therefore, that Judge Kahn understood that
lack of proof was the reason for the nolle of the burglary
case. Judge Kahn further stated that she understood
that the prosecutor ‘‘would nolle some matters because
he had an inability to get certain witnesses . . . .’’ In
addition, she stated that ‘‘if the state wishes to enter a
nolle, there’s nothing the court can do. The state can
enter a nolle. It’s within the prosecutorial discretion.
All the . . . court can do is ask the state to put their
reasons on the record. But they can nolle cases when-
ever they want, and all the court can do is ask the
reasons. I have no issues with [the prosecutor’s] reasons
. . . . I understand them. You’ve put them on the
record, and so I’m not quarreling with that at all.’’
Finally, Judge Kahn stated that she would ‘‘note the
nolles for the reasons stated on the record.’’ (Emphasis
added.) Thus, Judge Kahn clearly viewed the reasons
for entering the four nolles as distinct and indepen-
dent reasons.
Indeed, if the defendant had agreed to make the $271
charitable contribution in exchange for all four nolles,
there would have been absolutely no reason for the
prosecutor to state on the record the reasons for the
nolles in the driving case, the breach of the peace case
and the burglary case. The prosecutor could have sim-
ply explained that, in exchange for the contribution, all
four cases were being nolled. To the contrary, however,
the prosecutor expressly stated that, in light of the
charitable contribution, the state had agreed to nolle
‘‘this case’’—the drug case—not all of the cases.
(Emphasis added.) Thus, the only reasonable interpre-
tation of the transcript of the disposition hearing is that
the parties intended that only the drug case would be
nolled in exchange for the defendant’s charitable contri-
bution of $271, and the other three cases would be
nolled for entirely distinct reasons, none of which
involved any concessions by or consideration from
the defendant.
In addition, there is a plausible explanation for this
restructuring of the disposition agreement. Instead of
receiving a conviction in the drug case and effective
dismissals of the other three cases,10 the defendant
would receive an effective dismissal in the drug case
and unilateral nolles on the other three charges, under
which the state would be entitled to reinstitute the
charges.11 The original plea agreement was in accor-
dance with Practice Book § 39-5, which authorizes the
state to nolle other charges against the defendant in
exchange for a guilty plea on a particular charge. Pre-
sumably, the parties’ agreement that the defendant
would plead guilty to possession of drug paraphernalia
and pay a criminal fine only in the drug case was prem-
ised on their view that that was the state’s strongest
case, considering both the extent of the defendant’s
culpability and the strength of the state’s evidence. A
guilty plea in the drug case, however, was no longer
an option. Accordingly, it is reasonable to conclude
that, with a view to preserving the original intent to tie
the financial consequences to the defendant exclusively
to the drug case, and knowing that the guilty plea no
longer provided consideration for the nolles in the other
three cases, the parties agreed that the defendant would
make a charitable contribution in exchange for the nolle
in the drug case and the other cases would be nolled
for distinct reasons. This new arrangement involved
trade-offs for both parties, in that the state gave up the
conviction in the drug case but gained the ability to
reinstitute charges in the other three cases if circum-
stances changed, while, conversely, the defendant
avoided a certain criminal conviction in the drug case
but took on the risk that the state might reinstitute the
charges in the other cases. In contrast, if the parties
had agreed to preserve the original intent to effectively
dismiss the driving case, the breach of the peace case
and the burglary case by entering nolles in all four cases
in exchange for a charitable contribution, the benefits
of the change in disposition would have flowed exclu-
sively to the defendant. Specifically, the defendant
would have avoided a criminal conviction in the drug
case and the state would have been barred from reinsti-
tuting the charges in all four cases. Accordingly,
because it is clear that it was the intent of the parties
that the defendant would pay a charitable contribution
in exchange only for the nolle in the drug case, and
because there is a more than plausible explanation for
the change in the disposition of the other cases, I would
conclude that the state was barred only from reinstitut-
ing charges in the drug case, and it was free to reinstitute
the charges in the present case arising from the conduct
that was the basis of the nolled burglary case.
The majority makes numerous arguments in support
of its conclusion to the contrary, none of which bears
scrutiny. First, the majority points out that ‘‘[t]he prose-
cutor made no remark at the outset of the hearing to
indicate that one of the four cases was being treated
differently, nor did he preface the discussion of the
drug case with any such comment.’’ (Emphasis added.)
As I have indicated, however, the prosecutor did treat
the cases differently because he took the drug case out
of order and addressed it last. Thus, he grouped the
three cases that were unilaterally nolled together and
treated the drug case separately. Moreover, the failure
of the prosecutor to state expressly that only the drug
case was being nolled in exchange for consideration
does not render the remarks that he did make ambigu-
ous. As I have indicated, he unambiguously indicated
that each of the four cases had a different reason for
being nolled, and that the drug case was the only case
that was being nolled in exchange for the defendant’s
charitable contribution.
The majority also contends that, because all of the
cases were treated the same, i.e., they were nolled, it
is reasonable to conclude that the parties intended that
the driving case, the breach of the peace case and the
burglary case would be effectively dismissed, like the
drug case. Specifically, the majority contends that the
reasons given by the prosecutor for the nolle in the
drug case were ‘‘problems in proof and lack of interest
in pressing the matters given the circumstances atten-
dant to the case,’’ reasons that were not markedly differ-
ent from the reasons given in the other cases. The
prosecutor mentioned these issues, however, in an
attempt to explain the reasons for the previous plea
agreement pursuant to which the defendant would
plead guilty to possession of drug paraphernalia and
pay a $300 fine. The prosecutor then explained that, in
lieu of the fine, the defendant had made a $271 charita-
ble contribution and, ‘‘[i]n light of that,’’ the state was
entering a nolle in that case. It is clear, therefore, that
the reason for that nolle, unlike the nolles in the other
cases, was the payment of the charitable contribution.
The majority further contends that Judge Kahn’s
remarks referring to a prosecutor’s broad discretion to
enter nolles as long as the prosecutor states the reasons
on the record merely ‘‘underscores the inherent ambigu-
ity in the record as to the parties’ intention’’ because
she drew no distinction between the unilateral nolles
and the nolle in the drug case. From the perspective
of Judge Kahn however, there was no distinction
between the unilateral nolles and the nolle in exchange
for the charitable contribution, in the sense that she
could not reject any particular nolle and demand that
the state continue with the prosecution. That does not
mean that there was no distinction between a unilateral
nolle and a nolle entered in exchange for consideration
from the defendant’s point of view.
To the extent that the majority suggests that the
defendant might reasonably have had the mistaken
belief that the nolle entered in exchange for consider-
ation and the unilateral nolles would have the same
legal effect, the defendant has raised no claim of legal
mistake, unilateral or otherwise, before the trial court
or on appeal. Rather, the defendant contended in his
motion to dismiss only that ‘‘the state previously
entered a nolle prosequi on these charges after the
payment of a charitable contribution by the defendant.
The payment of this charitable contribution was made
by the defendant in consideration of the state entering
a nolle prosequi on the pending charges [in the burglary
case], constituting a valid and enforceable plea
agreement.’’ The defendant further contended in sup-
port of his motion to dismiss, as he does on appeal,
that, to the extent that the disposition agreement, as
reflected in the transcript of the disposition hearing, is
ambiguous on this point, it should be construed in his
favor. There is a difference between a contract that is
ambiguous and a contract that is clear and unambiguous
but, because of a mistake of fact or law, does not accu-
rately reflect the intent of one of the parties, and the
defendant has not raised a claim involving the latter
issue. Accordingly, this court must presume that the
defendant understood the legal distinction between uni-
lateral nolles and nolles entered in exchange for consid-
eration.
Second, the majority contends that the defendant’s
charitable contribution to the victim’s fund ‘‘bore no
logical connection to the drug case’’ because, according
to the majority, there was no victim in that case.12 As
I have explained, however, the logical connection to
the drug case was the preexisting intent of the parties
that the financial consequences to the defendant would
be tied to that case. Because the defendant could not
be required to pay a criminal fine if he did not plead
guilty to the charge, a charitable contribution to the
victim’s fund, which is a common practice when dispos-
ing of criminal matters, was a logical substitute, regard-
less of whether any specific victim of this particular
crime could be identified.
Third, the majority contends that the prosecutor
made comments that ‘‘reasonably would have suggested
to the defendant that the prosecutor would not recom-
mence prosecution in the [burglary] case.’’ Specifically,
the majority relies on the prosecutor’s comment that
‘‘nobody here is out anything in the particular file’’ and
his request that any property relating to the case be
returned to its rightful owner. The majority ignores the
fact, however, that the primary reason that the prosecu-
tor gave to Judge Kahn for entering a nolle in this case
was that he had doubts that the state ‘‘could ever prove
the breaking and entering or the illegal entry,’’ thereby
indicating that, if proof became available, all bets would
be off. It was only after giving that reason for the nolle
that the prosecutor made the offhand comment that
‘‘nobody here is out anything’’ as additional support
for the nolle. The prosecutor was entitled to balance
problems of proof with the extent of the harm to the
victim, and when proof is difficult and the harm small,
a nolle may be indicated. That does not mean that, if
strong evidence becomes available, a decision not to
prosecute would still be the appropriate course. In any
event, even if I were to agree that the prosecutor sug-
gested that he did not anticipate any change in circum-
stances that would support reinstitution of the charges,
that would not render the intent of the parties to enter
a unilateral nolle ambiguous.
With respect to the prosecutor’s request that the prop-
erty be returned to its rightful owner, the return of
stolen property does not constitute the ‘‘destruction of
. . . evidence’’ and, therefore, the majority’s reliance
on State v. Nelson, 23 Conn. App. 215, 219–20, 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), for the proposition that the destruction
of evidence evinces a belief that no further charges will
be brought is misplaced. See General Statutes § 54-36a
(b) (2).13 The majority contends that, to the contrary,
§ 54-36a (b) (2) has no bearing on its argument because
the prosecutor never indicated on the record ‘‘that pho-
tographs of the evidence had been taken or that they
were being preserved’’ as secondary evidence. See foot-
note 10 of the majority opinion. There is no requirement,
however, that a prosecutor who has entered a unilateral
nolle and requested that stolen property be returned
to the owner explain on the record whether or how
secondary evidence is being preserved in order to main-
tain the right to reinstitute the charges. Moreover, even
if I were to assume that the defendant reasonably could
have believed that the state would no longer possess
evidence to support the burglary charge, making it
unlikely that it would reinstitute that charge, that would
not render the reason for the nolle ambiguous, and if
the defendant intended that the nolle would be unilat-
eral, we must presume that he knew that the state was
not barred from reinstituting the charges. The majority
continually confuses the issue of whether the defendant
could have misunderstood the legal effect of a unilateral
nolle—an issue that has not been raised—with the issue
of whether the parties intended that the nolle in the
burglary case would be unilateral, which they clearly
did.
Fourth, the majority makes an elaborate argument
regarding the prosecutor’s intent to take the ‘‘bull by
the horns’’ in light of Judge Strackbein’s unavailability
and his failure to state on the record how this or any
other change in circumstances ‘‘would explain a change
from the original intent to effectuate a global disposi-
tion.’’ As I have explained, however, Judge Strackbein’s
unavailability meant that the defendant could not plead
guilty on the drug charge as consideration for the effec-
tive dismissal of the other cases. Because that was no
longer an option, it is reasonable to conclude that the
parties abandoned their plan to effectively dismiss the
charges in those cases as part of a trade-off that involved
gains and losses for both parties. In my view, the prose-
cutor had no obligation to explain on the record why
the parties were not entering into a new agreement
that would benefit the defendant exclusively. Moreover,
even under the state’s view, the new disposition
agreement, like the discarded plea agreement, would
be ‘‘global’’ in the sense that each of the four cases
would be disposed of in some manner. In any event,
the prosecutor’s failure to expressly discuss the theory
underlying the new overall disposition on the record
does not change the fact that the distinct reasons that
he gave for entering a nolle in each of the four individual
cases show clearly and unambiguously that only the
drug case was nolled in exchange for the charitable con-
tribution.
Finally, the majority argues—yet again—that ‘‘[i]f the
prosecutor intended to enter unilateral nolles on three
of the cases and effectuate a nolle agreement confined
to only the drug case, then it was incumbent on the
prosecutor to make that explicit on the record to avoid
any ambiguity.’’ It is clear to me, however, that the
prosecutor did everything that was required by Practice
Book § 38-29 when he gave a clear and unambiguous
statement in open court of the specific reasons that
each of the four cases was being nolled. He was not
required to give those reasons and then to dispel all
possible doubt about the reasons for the nolles by reiter-
ating that the specific reason that he gave for the nolle
in each case was, in fact, the reason for that nolle. Nor
was the prosecutor required to explain to the defendant
that the unilateral nolles did not bar the state from
reinstituting the charges if the circumstances changed.14
In any event, the defendant has made no claim that he
did not understand the effect of a unilateral nolle.
It is clear to me, therefore, that the majority is
allowing the defendant, in light of a subsequent change
in circumstances, to substitute his hindsight view of
what he should have done—request the state to nolle
all four cases in exchange for a charitable contribution
to the victim’s fund—for what, as far as the transcript
of the disposition hearing reveals, the parties actually
agreed to do—nolle the drug case in exchange for a
charitable contribution and nolle the other three cases
for entirely distinct reasons, none of which barred the
reinstitution of the underlying charges in those three
cases if circumstances changed.15 In doing so, the major-
ity has entirely ignored the fact that the disposition
agreement, as reflected in the transcript of the disposi-
tion hearing, involved trade-offs, and, instead, it has
given effect to the terms of both the abandoned plea
agreement and the substituted disposition agreement
that favor the defendant, while nullifying the favorable
terms for which the state bargained. In my view, it is
not the role of this court to retroactively change the
terms of a clear and unambiguous disposition
agreement that is otherwise enforceable merely
because subsequent developments have triggered a
term that disfavors the defendant.
Because I believe that the transcript of the disposition
hearing shows clearly and unambiguously that the pros-
ecutor unilaterally nolled the burglary case, I would
conclude that there is no bar to the reinstitution of
those charges in the present case. Accordingly, I would
reverse the judgment of the Appellate Court reversing
the trial court’s judgment of conviction following its
denial of the defendant’s motion to dismiss, and I would
direct that court to uphold the judgment of conviction.
I therefore dissent.
1
Because I conclude that the intent of the disposition agreement was
clear and unambiguous, I need not determine whether the majority correctly
concludes that the standard of review of Judge Alander’s decision denying
the defendant’s motion to dismiss is plenary because the ruling was based
solely on his interpretation of the written transcript of the disposition hear-
ing, and not on the live testimony of witnesses, and that any ambiguities in
the disposition agreement must be resolved against the state. Even if I were
to assume that those standards are correct, I would affirm Judge Alander’s
ruling denying the motion to dismiss.
2
See Practice Book § 39-5 (‘‘[t]he parties may agree that the defendant
will plead guilty or nolo contendere on one or more of the following condi-
tions . . . [2] [t]hat the prosecuting authority will nolle . . . certain other
charges against the defendant’’).
3
Judge Kahn stated at the September 22, 2011 hearing that she ‘‘was
hesitant to engage in the plea negotiations because [she] was going to be
the trial judge . . . .’’
4
Practice Book § 39-29 provides: ‘‘A prosecuting authority shall have the
power to enter a nolle prosequi in a case. It shall be entered upon the record
after a brief statement by the prosecuting authority in open court of the
reasons therefor.’’
5
In addition, the prosecutor stated later in the proceeding that ‘‘in the
[burglary case] the codefendant . . . is dead. The victim can’t be found.
That case as it stands today is unprovable.’’
6
Presumably, the prosecutor was referring to the Criminal Injuries Com-
pensation Fund, the statutorily authorized victim’s compensation fund. See
General Statutes § 54-215.
7
See State v. Pieger, 240 Conn. 639, 653, 692 A.2d 1273 (1997) (order that
defendant make charitable contribution was authorized by General Statutes
[Rev. to 1995] § 53a-30 [a] [12], [now General Statutes § 53a-30 (17)], under
which court has authority to impose as condition on discharge that defendant
‘‘satisfy any other conditions reasonably related to his rehabilitation’’); See
v. Gosselin, 133 Conn. 158, 161, 48 A.2d 560 (1946) (‘‘a nolle does necessarily
imply a discharge’’).
8
Although Judge Kahn did not expressly refer to the burglary case, that
was the only case in which the prosecutor explained that it was being nolled
because of problems of proof.
9
It is possible that the prosecutor intended to refer to the burglary case.
See footnote 5 of this dissenting opinion.
10
See Mason v. State, 302 Md. 434, 440, 488 A.2d 955 (1985) (nolle as part
of plea agreement is tantamount to dismissal of nolled charge).
11
See State v. Lloyd, 185 Conn. 199, 201, 440 A.2d 867 (1981); Practice
Book § 39-31 (‘‘The entry of a nolle prosequi terminates the prosecution and
the defendant shall be released from custody. If subsequently the prosecuting
authority decides to proceed against the defendant, a new prosecution must
be initiated.’’).
12
I would note that the prosecutor stated at the September 22, 2011 hearing
that ‘‘[p]erhaps the drug case changed significantly when [the codefendant]
died and [the victim] was unavailable.’’ But see footnote 9 of this dis-
senting opinion.
13
General Statutes § 54-36a (b) (2) provides in relevant part: ‘‘If the seized
property is stolen property, within ten days of the seizure, the law enforce-
ment agency seizing the property shall notify the owner of the property if
known, or, if the owner of the property is unknown at the time of seizure,
such agency shall within ten days of any subsequent ascertainment of the
owner notify such owner, and, on a form prescribed by the Office of the Chief
Court Administrator, advise the owner of such owner’s rights concerning the
property and the location of the property. Such written notice shall include
a request form for the return of the property. The owner may request the
return of the property by filing such request form with such law enforcement
agency, and upon receipt of such request, the law enforcement agency shall
forward it to the clerk of the court for the geographical area in which the
criminal offense is alleged to have been committed. The clerk of the court
shall notify the defendant or defendants of the request to return the property.
The court shall order the return of the property within thirty days of the
date of filing such return request by the owner, except that for good cause
shown, the court may order retention of the property for a period to be
determined by the court. Any secondary evidence of the identity, description
or value of such property shall be admissible in evidence against such
defendant in the trial of such case. The fact that the evidence is secondary
in nature may be shown to affect the weight of such evidence, but not to
affect its admissibility. . . .’’
14
Because a guilty plea involves the waiver of important constitutional
rights, the defendant must be canvassed by the court to ensure that the
plea is knowing and voluntary. See State v. Domian, 235 Conn. 679, 687,
668 A.2d 1333 (1996) (‘‘the federal constitution requires that the record of
the plea canvass indicate the voluntariness of any waiver of the three core
constitutional rights [implicated by the guilty plea]’’ [internal quotation
marks omitted]). I am aware of no comparable requirement that a prosecutor
advise the defendant of the legal effect and consequences of a unilateral
nolle, which does not require the defendant to waive any constitutional
rights. Although providing such an explanation is arguably the better practice
if the prosecutor has any reason to believe that the defendant lacks knowl-
edge on that matter, that presumably would not be the case when the
defendant is represented by counsel.
15
As I have indicated, the defendant has made no claim that he agreed
to the new disposition because he did not realize that a unilateral nolle
would allow the state to reinstitute the charges. Even if the defendant had
made such a claim, however, the remedy for a unilateral mistake ordinarily
is not to reform the contract to conform to the mistaken party’s intent, but,
at most, to void the contract. See Bender v. Bender, 292 Conn. 696, 730–31,
975 A.2d 636 (2009) (‘‘[t]he mistake of [only one] of the parties inducing
him to sign a contract which, but for the mistake, he would not have entered
into, may be a ground in some cases for cancelling the contract’’ [internal
quotation marks omitted]).