STATE v. MADERA

12377

198 Conn. 92 (1985) | Cited 79 times | Supreme Court of Connecticut | December 17, 1985

The defendant has appealed from his convictionupon a conditional plea of nolo contendere toan indictment charging him with fourteen counts ofarson murder in violation of General Statutes53a-54d,1 one for each of the victims who died in thefire of an apartment building in Waterbury. The trial

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     court imposed on each count the statutorily mandatedsentence of lile imprisonment without eligibility forparole and structured the sentences on the fourteencounts as consecutive or concurrent to result in aneffective sentence of two consecutive life terms, 120years of imprisonment pursuant to General Statutes53a-35b, without eligibility for parole.2 The defendanthas raised three claims of error: (1) the denial ofhis motion to suppress his statement to the police afterhe had been arrested at the scene of the fire; (2) thedenial of his motion to dismiss which he based upon theclaimed unconstitutionality of our arson murder statute,53a-54d, by virtue of its inclusion of reckless aswell as intentional conduct as a sufficient basis to satisfythe "arson" element of the offense; and (3) the impositionof two consecutive terms of life imprisonment.We reach only the third of those issues, because on therecord before us the condition upon which the plea wasentered, that the defendant obtain review by this courtof the rulings upon his motions to suppress and to dismiss,cannot be fulfilled. Accordingly, we remand thecase to the trial court with direction to vacate the pleaand for further proceedings.

[198 Conn. 95]

The state recited the following factual basis for thedefendant's plea at the time it was accepted by the trialcourt: In the early morning hours of July 5, 1982, thedefendant visited the apartment of his niece at 45-47Prospect Street in Waterbury. The defendant arguedwith his niece concerning his drinking and also abouta fire he had started, by his carelessness with a cigarette,on the couch in her apartment. After the defendantcomplied with her request to leave the apartment,he returned to borrow some matches. A short timelater, the defendant set fire to some papers on the stairwayof the building. Although the police and fire unitsof the city of Waterbury arrived on the scene quickly,the blaze had already consumed the building. Thedefendant was arrested at the scene of the fire atapproximately 2 a.m. He was advised of his constitutionalrights in English and asked if he understoodthem. The defendant replied that he did. The defendantwas informed that he was under arrest and thathe was accused of setting the fire. The defendant deniedthe accusation.

The defendant was then transported to the Waterburypolice station and again advised of his constitutionalrights. He continued, when questioned, tomaintain his innocence. Following this second inquiry,he became ill and fell to the floor of his cell. He wastaken to the emergency room at St. Mary's Hospitalin Waterbury. The defendant's condition was diagnosedby a staff physician at the emergency room as an "anxietyreaction" and he was discharged from the hospital.The defendant was advised of his rights for the thirdtime at approximately 9 a.m., and he again denied thathe had set the fire. After spending the remainder ofthe day in his cell, he was summoned for further questioningat approximately 8 p.m. The defendant wasagain advised of his rights. He indicated that he understoodthem, and that he wished to make a statement,

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     expressly waiving his right to have a lawyer present.Because the defendant had some difficulty describingthe incident in English, a Spanish speaking officer wasinstructed to assist him At this time he was advisedof his rights in Spanish, and he once again indicatedthat he understood them. At approximately 8:30 p.m.,the defendant confessed to starting the fire by ignitingsome papers on the apartment stairway. His entirestatement was given in English. After the statementwas transcribed, he signed it and also initialed anadditional paragraph noting that the document had beenread back to him in both Spanish and English. Thedefendant also signed a form acknowledging that hehad waived his constitutional rights.

The defendant filed a motion to suppress his confession.At the hearing on the motion he claimed that thestate had failed to meet its burden of proving by apreponderance of the evidence that he had effectivelywaived his Miranda3 rights and that his confession wasvoluntary. In relation to those issues he presented psychiatrictestimony concerning his mental condition. Thetrial court denied the motion. The defendant also fileda motion to dismiss the indictment claiming that thearson murder statute violates the federal constitutioninsofar as the arson which is an element of the crimeof arson murder may be arson in either the second orthird degree. He claimed that the statutorily mandatedsentence would be disproportionate to the crimecharged, violating the eighth amendment prohibitionagainst cruel and unusual punishment. The trial courtdenied the motion to dismiss, concluding that thedefendant's motion was premature because it wasbased upon the speculative assumption that any verdictin this case would be predicated on either secondor third degree arson. On September 8, 1983, the

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     defendant entered pleas of nolo contendere to each ofthe fourteen counts of arson murder, reserving his rightto appeal the court's denial of his pretrial motions underGeneral Statutes 54-94a.4

I

As a general rule, an unconditional plea of guilty ornolo contendere,5 intelligently and voluntarily made,operates as a waiver of all nonjurisdictional defects andbars the later assertion of constitutional challenges topretrial proceedings. 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,

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     397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Bradyv. United States, 397 U.S. 742, 757, 90 S.Ct. 1463, 25L.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). Therefore, onlythose issues fully disclosed in the record which relateeither to the exercise of jurisdiction6 by the court orto the voluntary and intelligent nature of the plea areordinarily appealable after a plea of guilty or nolocontendere. Boykin v. Alabama, 393 U.S. 238, 243, 89S.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.

The legislature in 1982 altered the broad waiver ofconstitutional rights implicit in a plea of guilty or nolocontendere. Public Acts 1982, No. 82-17. General Statutes54-94a allows a defendant to enter a plea of nolocontendere, conditional on the right to take an appealfrom the trial court's denial of a motion to suppressevidence based on an unreasonable search and seizure,or from the denial of a motion to dismiss. See State v.Martin, supra, 25 n. 12; State v. Ross, 189 Conn. 42,50 n. 4, 454 A.2d 266 (1983); State v. Satti, 2 Conn. App. 219,222, 477 A.2d 144 (1984). The defendant entered

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     his plea under this statute. The record reveals that neitherthe trial court nor the state had any objection tothis procedure.

The threshold question on this appeal is whether theissues reserved for review by this court are within theambit of 54-94a. The defendant reserved two claims,one relating to the voluntariness of his confession, theother attacking the constitutionality of the arson murderstatute. Clearly, the former is not within the purviewof the statute. Under 54-94a, an appeal ispermitted from the denial of a motion to suppress "evidencebased on an unreasonable search and seizure"only. The defendant in this case argues that his confessionwas illegally obtained because his lack of facilitywith the English language, as well as his allegedmental impairment, made it impossible for him to relinquishhis rights effectively. Such a basis for a motionto suppress, implicating the fifth and sixth amendments,is not included in the statutory language allowingappeals only from the denial of a motion to suppressevidence obtained from an illegal search or seizure inviolation of the fourth amendment. Moreover, there isnothing in the legislative history of the statute thatwould suggest such an intention.7

The question remains whether we should exercise ourinherent supervisory authority over the administration

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     of justice; State v. Cohane, 193 Conn. 474,479 A.2d 763, cert. denied, 469 U.S. 990, 105 S.Ct. 397, 83L.Ed.2d 331 (1984), citing United States v. Butler,567 F.2d 885, 893 (9th Cir. 1978); and adopt a procedurethat would allow criminal defendants to enter pleasbased upon conditions other than those specified in54-94a.

Prior to the advent in 1983 of federal rule of criminalprocedure 11(a)(2),8 which allows a conditional pleaof guilty or nolo contendere with a reservation of theright to appeal rulings on "any specified pretrialmotion," the federal courts> were divided on the permissibilityof such a plea.9 (Emphasis added.) Althoughthe adoption of the rule appears to have quieted someconcerns that had arisen; United States v. Morrison,449 U.S. 361, 363 n. 1, 101 S.Ct. 665, 66 L.Ed.2d 564,reh. denied, 450 U.S. 960, 101 S.Ct. 1420, 67 L.Ed.2d385 (1981); cf. Lefkowitz v. Newsome, 420 U.S. 283,292, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975); McMannv. Richardson, supra, 770 n. 13; it has not entirely stilledobjections that the procedure (1) encourages appellatelitigation; (2) militates against achieving finality in thedisposition of criminal cases; (3) reduces the effectivenessof appellate review because of the absence of a

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     full trial record; and (4) compels decisions on manyissues, constitutional or otherwise, that would often beobviated by applying the harmless error doctrine in thelight of a full trial record. Comment, "ConditionalGuilty Pleas: Post Guilty Plea Appeal of NonjurisdictionalIssues," 26 U.C.L.A. L. Rev. 360, 375 (1978).Balanced against these considerations is the obviousgain in judicial efficiency that is realized whenever afull trial can be avoided as well as the opportunityafforded to defendants to enter a plea without foregoingsubstantial constitutional claims. Lefkowitz v.Newsome, supra, 292.

The conditional plea is susceptible to abuse, however,unless its use is carefully limited to significant issuesthe determination of which on appeal is likely to be dispositiveof the case. See United States v. Lace, 669 F.2d 46,53 n. 5 (2d Cir. 1982) (Newman, J., concurring). Forthis reason, the recent federal rule provides that thereserved issues must be specified in writing and thatconsent of the prosecutor as well as approval by thecourt are necessary for entry of a conditional plea. Fed.R. Crim. P., rule 11(a)(2). Our statute, 54-94a, doesnot contain these safeguards against potential abuse.The inherent power of the trial court to reject such aplea where it is clearly inappropriate affords some protectionagainst misuse of the statutory procedure, butthe court is not in a position to evaluate adequately suchprosecutorial concerns as the significance of a particularruling to the ultimate disposition of a case or theproblems entailed by delaying a trial for the periodnecessary to obtain appellate review. The prosecutoris ordinarily much more familiar with the evidence tobe presented that may not be affected by the ruling andalso with the effect of delay incident to an appeal uponthe availability of witnesses. Even where the prosecutorlooks favorably on the conditional plea, as the stateapparently does here, the parties, as well as the trial

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     court, must be sure that the issues reserved can properlybe reviewed on the record available. Though weperceive no problem in reviewing the ruling upon theadmissibility of the defendant's confession in this case,we have concluded, for reasons explained in part II ofthis opinion, that the issue of whether the arson murderstatute violates the constitutional prohibitionagainst cruel and unusual punishment cannot be properlyresolved at this stage of the proceeding. Theimprovident reservation of that issue under the pleahas resulted in a delay of more than two years in theultimate disposition of this case.

We are not inclined, therefore, on this occasion toresort to our general supervisory powers over appellateprocedure; Practice Book 3096, 3063, 3164;State v. Cohane, supra, 499; to allow the reservationunder a conditional plea of rulings on pretrial motionsbeyond those expressly permitted by the statute.10 Itwould be unwise to invoke our authority by reviewingthe denial of the motion to suppress the confessionbecause the condition of the defendant's plea was thathe obtain an appellate determination on the merits bothof that ruling and of the denial of his motion to dismisswhich, as we have indicated, the record does not permit.We also are of the view that until a rule has beenfashioned containing safeguards similar to thoseembodied in federal rule 11(a)(2), the trial courts>should not employ this procedural innovation exceptin situations plainly within the provisions of 54-94a.11

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II

Because 54-94a permits a defendant to reserve forappeal the denial of a motion to dismiss, the secondclaim reserved by the defendant, attacking the constitutionalityof the arson murder statute, appears to fallwithin the scope of the conditional plea statute. We conclude,nevertheless, that the contemplated appellatedetermination of that issue on the merits cannot be hadon the state of the record before us.

The defendant moved to dismiss the indictment insofaras the arson murder charges were predicated uponhis commission of arson in the second or third degreerather than arson in the first degree. He claimed that,since such offenses are designated as class B and C feloniesand require a less culpable state of mind than arsonin the first degree, a class A felony, the penalty providedfor arson murder is unconstitutionally disproportionateto the crime and, therefore, constitutes crueland unusual punishment prohibited by the eighthamendment to our federal constitution. See Solem v.Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637(1983). In denying this motion to dismiss, the trial courtdistinguished the Solem precedent relied upon by thedefendant because of the more serious nature of the

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     offenses charged in this case, but ultimately held that,regardless of the merits of his unconstitutionality claim,the defendant could not before trial assume that a guiltyverdict would necessarily be based upon arson in thesecond or third degree. The defendant has at no timeraised a constitutional challenge to a conviction of arsonmurder predicated upon arson in the first degree.

At the plea proceedings the state's narrative of thefactual basis for the plea indicated that the defendanthad intentionally ignited some papers that he hadspread on a stairway of an apartment building occupiedby his niece as well as others and thus started a conflagrationthat resulted in the deaths of fourteen persons.The state referred also to the confession of thedefendant in which he admitted visiting the apartmentof his niece and starting a fire on a couch within theapartment because of his carelessness with a cigarette.In its response to a motion for disclosure of unchargedmisconduct, the state had declared that evidence wouldbe offered that the defendant had started a fire on thecouch in the apartment of his niece shortly before hestarted the fire on the stairway that consumed thepremises. The state has contended that the second firewas the sole cause of the death of the fourteen victims.The defendant, however, has argued that, since he doesnot dispute negligently starting a fire on the couch inthe apartment of his niece, which may not have beenwholly extinguished when he left the apartment andmight have later flared up and consumed the building,a jury might find his conduct with a cigarette to constitutethe recklessness required for arson in the thirddegree.12 Thus he maintains that, if the arson murder

[198 Conn. 105]

     statute is construed to allow a person to be convictedfor merely reckless conduct in causing a fire that resultsin a death, it is unconstitutional because the severepenalties provided are greatly disproportionate to theoffense.

This court does not embark upon the resolution ofquestions involving the validity of a statute in theabsence of a practical necessity for their determinationin the case presented and a sufficient factual backgroundfor their adjudication. Alexander v. Robinson,185 Conn. 540, 548, 441 A.2d 166 (1981). "The bestteaching of this Court's experience admonishes us notto entertain constitutional questions in advance of thestrictest necessity." Parker v. Los Angeles, 338 U.S. 327,333, 70 S.Ct. 161, 94 L.Ed. 144 (1949); seeMoscone v. Manson, 185 Conn. 124, 134, 440 A.2d 848(1981) (Healey, J., concurring); State v. DellaCamera,166 Conn. 557, 560, 353 A.2d 750 (1974). Appropriatedeference to a coordinate branch of government exercisingits essential functions demands that we refrainfrom deciding constitutional challenges to its enactmentsuntil the need to do so is plainly evident. SeePoe v. Ullman, 367 U.S. 497, 503-506, 81 S.Ct. 1752,6 L.Ed.2d 989 (1961); Tribe, American ConstitutionalLaw 3-10. The defendant never attempted in hismotion for a bill of particulars to ascertain whether thestate would rely upon the fire of the couch as the predicatefor the arson murder charged in the indictment.It appears quite unlikely, nevertheless, that any occasionwill arise in this case to require a determinationof the constitutional issues raised by the defendant. Thestate declared at the plea proceeding that the arsonrelied upon in the indictment was based upon the firethe defendant had intentionally started on the stair

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     way for the purpose of destroying the building, a positionit has also maintained on appeal. Such a scenario,involving intentional conduct solely, would not implicatethe recklessness that's the gravamen of arson inthe third degree. "Our penal code . . . expresslydefines the terms `intentionally' and `recklessly' in suchmanner as to render them mutually exclusive." Statev. Ruiz, 171 Conn. 264, 271, 368 A.2d 222 (1976); seeGeneral Statutes 53a-3 (11) and (13). Thus it appearsthat no occasion amounting to a "practical necessity"will arise in this case to require a determination of theconstitutional issues raised by the defendant.

Furthermore, the defendant cannot mount a constitutionalchallenge to a statute on the basis of its possibleapplications in circumstances not presented by his owncase, unless first amendment freedoms are affecteda situation not claimed to exist here. State v. Pickering,180 Conn. 54, 57-58, 428 A.2d 322 (1980); State v.Cuvelier, 175 Conn. 100, 111-12, 394 A.2d 185 (1978)."According to well-established principles, a [party] whochallenges the constitutionality of a statute must provethat the statute has adversely affected a constitutionallyprotected right `under the facts of his particularcase and not merely under some possible or hypotheticalset of facts not proven to exist.'" Weil v. Miller185 Conn. 495, 501, 441 A.2d 142 (1981). "[J]udicialpower is to be exercised to strike down legislation,whether state or federal, only at the instance of onewho is himself immediately harmed, or immediatelythreatened with harm, by the challenged action." Poev. Ullman, supra, 504; United Public Workers v.Mitchell, 330 U.S. 75, 90, 67 S.Ct. 556, 91 L.Ed. 754(1947). In the absence of a clear indication in the recordthat the state is relying upon a claim that thedefendant "recklessly" caused the destruction of theapartment building and thus committed arson in thethird degree as the predicate offense for arson murder,

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     the defendant is not entitled to an adjudication ofthe constitutional claims raised in his motion to dismiss.As we have noted, the present record discloses that thestate asserts the contrary, relying wholly upon a claimthat the defendant intended to destroy or damage theapartment building when he started the fire on thestairway.

Because the defendant's appeal from the denial ofthe motion to dismiss, as well as his appeal from themotion to suppress his statement, are not properlyreviewable by this court, we are unable to fulfill theplea agreement entered into between the defendant andthe prosecutor. The defendant expressly bargained forappellate review of both rulings of the trial court "onthe merits."13 Our inability to comply with this agreementconstitutes a failure of consideration in the pleabargaining process. See Santobello v. New York,404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Sucha failure requires this court to vacate the defendant'spleas on the ground that they did not "constitute knowingand intelligent voluntary waivers of constitutionalrights made with sufficient awareness of the relevantcircumstances and likely consequences." United Statesv. Cox, 464 F.2d 937, 946 (6th Cir. 1972); see Boykinv. Alabama, supra; Johnson v. Zerbst, 304 U.S. 458,58 S.Ct. 1019, 82 L.Ed. 1461 (1938). A plea induced

[198 Conn. 108]

     by a court-approved promise that could not be fulfilledcannot be viewed as voluntary. United States v. White,583 F.2d 819, 826 (6th Cir. 1978); United States v.Swann, 574 F.2d 1316, 1318 (5th Cir. 1978); UnitedStates v. Hill, 564 F.2d 1179, 1180 (5th Cir. 1977).Because the defendant is foreclosed from raising thereserved issues before this court, and because the pleawas given in reliance on his ability to pursue his appellateremedy, the judgment of conviction must be setaside and the matter remanded to the Superior Courtfor further proceedings.

III

The remaining claim of error, that the court imposedtwo consecutive terms of life imprisonment on thedefendant, though presenting a constitutional question,does not involve the validity of the arson murder statutebut the application of it by the trial court. The statutedoes not specify whether sentences imposed for itsviolation under separate counts must be consecutiveor concurrent, leaving that determination to the judicialdiscretion of the court pursuant to General Statutes53a-37. The defendant contends that consecutivelife sentences based upon a single act of arson violatethe double jeopardy clause of the eighth amendmentto the federal constitution as well as the prohibitionagainst being "punished, except in cases clearly warrantedby law" of article first, 9, of our state constitution.14Our reluctance to decide constitutional issuesin advance of a present need for their determinationis overcome in this instance by three factors: (1) the

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     issues do not involve the invalidation of any legislativeenactment; (2) there is a practical necessity to resolvethe issues at this time, because they are likely to ariseonce more at the sentencing proceeding, even thoughthe trial court is not obligated to impose the same sentence,in the event of another conviction of the defendant;and (3) ample precedent supports our practice ofreviewing claims of error not essential to the dispositionof the appeal that will probably recur when a caseis remanded for further proceedings. State v. Morrill,197 Conn. 507, 509, 498 A.2d 76 (1985);Maltbie, Conn. App. Proc. 341; see State v. Couture,194 Conn. 530, 566, 482 A.2d 300 (1984), cert. denied,469 U.S. 1192, 105 S.Ct. 967, 83 L.Ed.2d 971 (1985).

The defendant's claim that the two consecutive lifesentences imposed on him violate the double jeopardyclause of our federal constitution invokes the protectionafforded by that provision against multiple punishmentsfor the same offense. North Carolina v. Pearce,395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656(1969). "With respect to cumulative sentences imposedin a single trial, the Double Jeopardy Clause does nomore than prevent the sentencing court from prescribinggreater punishment than the legislature intended."Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673,74 L.Ed.2d 535 (1983). As the defendant recognizesin his brief, the issue, though essentially constitutionalbecomes one of statutory construction.

We recently rejected a double jeopardy challenge toconsecutive life sentences imposed for the felony murderof two of the victims of the same robbery on theground that the reference to the death of "a person"

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     in General Statutes 53a-54c, our felony murder statute,was in the singular. State v. Couture, supra, 565.The same language, "causes the death of a person,"is used in the arson murder statute, 53a-54d, todescribe that element of the crime. "A fundamentalpurpose of the criminal law is to protect individualcitizens from the criminal conduct of another. Peopleare neither fungible nor amorphous. Where crimesagainst persons are involved, a separate interest of societyhas been invaded for each violation. Therefore,when two or more persons are the victims of a singleepisode there are as many offenses as there are victims."State v. Couture, supra, 565-66; State v. Gunter,132 Ariz. 64, 70, 643 P.2d 1034 (1982); State v.Irvin, 603 S.W.2d 121 (Tenn. 1980); Vigil v. State,563 P.2d 1344, 1351 (Wyo. 1977).

The defendant argues that an intention to impose thesame punishment for the single act of arson regardlessof the number of deaths caused may be gleanedfrom the legislative history of 53a-54d as well as ofthe provision of our capital felony statute; General Statutes53a-54b (8); that makes a person susceptible topunishment by death who is convicted of the "murderof two or more persons at the same time or in thecourse of a single transaction." We are unpersuaded.Nothing in the legislative history is of such significanceas to overcome the reference in 53a-54d to the deathof a single person as an essential element of the crimeof arson murder, a consideration we found persuasivein the parallel situation of felony murder. State v.Couture, supra, 565. The express reference to multiplemurders in 53a-54b as a basis for a capital felonydoes not militate against treatment of a single act ofarson resulting in the death of multiple victims as separateoffenses under 53a-54d.

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There is error in accepting the plea of nolo contenderewith conditions that could not be fulfilled underour procedures, the judgment is set aside and the caseis remanded to the trial court for further proceedings.

In this opinion the other judges concurred.

1. "[General Statutes] Sec. 53a-54d. ARSON MURDER. A person isguilty of murder when, acting either alone or with one or more persons, hecommits arson and, in the course of such arson, causes the death of aperson. Notwithstanding any other provision of the general statutes, anyperson convicted of murder under this section shall be punished by lifeimprisonment and shall not be eligible for parole."

2. The court made the life imprisonment terms in counts three toeight concurrent with that imposed in count one. A consecutive lifeimprisonment term was imposed in count two and the terms imposed in countsnine to fourteen were concurrent with that count. General Statutes 53a-35a,effective July 1, 1981, and applicable to crimes committed alter that date,"instituted definite sentencing and effectively eliminated parole inConnecticut . . . . The effect of General Statutes 53a-35a is to put thearson murder statute in the context of a definite sentencing scheme and torender the phrase `shall not be eligible for parole' in the statutemeaningless . . . . General Statutes 53a-54d remains effective to makearson murder a crime and to require anyone convicted of that offense toreceive a life sentence." State v. Dupree, 196 Conn. 655, 659-60,495 A.2d 691 (1985). In view of the result we reach that further trial court proceedings arenecessary, we need not consider the effect of 53a-35a upon the sentencesimposed in this case, the defendant having raised no claim of error in thatrespect.

3. See Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966).

4. "[General Statutes] Sec. 54-94a. CONDITIONAL NOLO CONTENDEREPLEA. APPEAL OF DENIAL or MOTION TO SUPPRESS OR DISMISS. When a defendant,prior to the commencement of trial, enters a plea of nolo contendereconditional on the right to take an appeal from the court's denial of thedefendant's motion to suppress evidence based on an unreasonable searchor seizure or motion to dismiss, the defendant after the imposition ofsentence may file an appeal within the time prescribed by law. The issue tobe considered in such an appeal shall be limited to whether it was properfor the court to have denied the motion to suppress or the motion todismiss. A plea of nolo contendere by a defendant under this section shallnot constitute a waiver by the defendant of nonjurisdictional defects in thecriminal prosecution."

5. "A plea of nolo contendere has the same legal effect as a pleaof guilty on all further proceedings within the indictment. North Carolinav. Alford, 400 U.S. 25, 35-36 n. 8, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970);Lawrence v. Kozlowski, 171 Conn. 705, 372 A.2d 110 (1976), cert. denied,431 U.S. 969, 97 S.Ct. 2930, 53 L.Ed.2d 1066 (1977); see State v. Godek,182 Conn. 353, 363-64, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031,101 S.Ct. 1741, 68 L.Ed.2d 226 (1981). The only practical difference isthat the plea of nolo contendere may not be used against the defendant asan admission in a subsequent criminal or civil case. 4 Wigmore, Evidence(Chadbourn Rev. 1972) 1066(2), p. 81; Lenvin & Meyers, `Nolo Contendere:Its Nature and Implications,' 51 Yale L.J. 1255 (1942)." State v. Martin,197 Conn. 17, 20-21 n. 7, 495 A.2d 1028 (1985). It is clear, however, that anolo contendere plea also constitutes a waiver of all nonjurisdictionaldefects in a manner equivalent to a guilty plea. Lott v. United States,367 U.S. 421, 81 S.Ct. 1563, 6 L.Ed.2d 940 (1961); United States v. DePoli,628 F.2d 779, 781 (2d Cir. 1980).

6. A plea, whether conditional or unconditional, does not precludereview of "jurisdictional defects." Those defects have been characterizedas those which would prevent a trial from occurring in the first place.Saltzburg, "Pleas of Guilty and the Loss of Constitutional Rights: TheCurrent Price of Pleading Guilty," 76 Mich. L. Rev. 1265, 1285-86 (1978).Thus, after an unqualified plea of guilty or nolo contendere, a defendantmay challenge his conviction if the conviction is in violation of the doublejeopardy clause; Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d195 (1975); if the court lacks subject matter jurisdiction over the case;Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); orif the statute under which the defendant is charged is unconstitutional.Haynes v. United States, 390 U.S. 85, 87 n. 2, 88 S.Ct. 722, 19 L.Ed.2d 923(1968); see 1 Wright, Federal Practice and Procedure: Criminal 2d (1982)175, pp. 624-28.

7. During the regular session of the senate, Senator Howard T.Owens, Jr., moved for acceptance of the joint committee's report and thepassage of the bill. 1982 Sess., S.B. 20. In describing the function of thebill, the senator gave an example involving a defendant charged withpossession of cocaine who wants to challenge the search and seizure warrantas ineffective. The senator explained that in the absence of a conditionalplea procedure, the defendant is forced to go through the entire expense oftrial, merely to appeal an unfavorable ruling on his motion to suppress.Nowhere in the legislative history is it suggested that 54-94a could beused to challenge a motion to suppress anything other than evidence obtainedcontrary to search and seizure principles. See 25 S. Proc., Pt. 2,1982 Sess., pp. 350-53; 25 H.R. Proc., Pt. 3, 1982 Sess., pp. 587-91.

8. Rule 11(a)(2) of the federal rules of criminal procedureprovides: "With the approval of the court and the consent of the government,a defendant may enter a conditional plea of guilty or nolo contendere,reserving in writing the right, on appeal from the judgment, to review ofthe adverse determination of any specified pretrial motion. If the defendantprevails on appeal, he shall be allowed to withdraw his plea."

9. Two circuits had approved the entry of conditional pleas; UnitedStates v. Moskow, 588 F.2d 882 (3d Cir. 1978); United States v. Burke,517 F.2d 377 (2d Cir. 1975); while two others had merely praised theconcept. United States v. Clark, 459 F.2d 977 (8th Cir. 1972); United Statesv. Dorsey, 449 F.2d 1104 (D.C. Cir. 1971). Three circuits had concluded thatthe use of the conditional plea in the absence of statutory authority orcourt rule is improper. United States v. Brown, 499 F.2d 829 (7th Cir.1974); United States v. Sepe, 474 F.2d 784, aff'd en banc, 486 F.2d 1044(5th Cir. 1973); United States v. Cox, 464 F.2d 937 (6th Cir. 1972); seegenerally United States v. DePoli, 628 F.2d 779, 781 (2d Cir. 1980).

10. We need not consider whether General Statutes 54-94a is a ruleof practice or procedure not binding upon the Superior or Supreme of this state; State v. Clemente, 166 Conn. 501, 507, 353 A.2d 723 (1974);since the trial court implicitly acquiesced in the statutory procedure. SeeAdams v. Rubinow, 157 Conn. 150, 156, 251 A.2d 49 (1968). This court alsoapproves the conditional plea procedure set forth in the statute subject tothe general authority of the trial court to refuse to accept such a pleawhere it is inappropriate, as in this case.

11. We are not presented in this case with claims of theinadmissibility of statements of a defendant to the police that areintertwined with a motion to suppress evidence based on an unreasonablesearch and seizure, as in our recent decision of State v. Torres,197 Conn. 620, 500 A.2d 1299 (1985). In that case the ruling on the motionto suppress had been properly reserved under General Statutes 54a-94a[54-94a]. Considerations of fairness and judicial economy dictated that theclosely related issues concerning the statements of the defendant madeduring the search as well as afterward should also be resolved. In the caseon appeal, the issues concerning the confession are not related to a claimof an unlawful search. Furthermore, as discussed in part II, the remainingissue reserved involving the constitutionality of General Statutes 53a-54d,our arson murder statute, cannot be reviewed on the present record. Thusnone of the issues reserved under the nolo contendere plea is properlybefore us.

12. In the defendant's motion to dismiss, he challenged theconstitutionality of an arson murder conviction predicated on both secondand third degree arson. It appears, however, that he has abandoned his claimas to second degree arson, as it was addressed neither in his brief norduring oral argument. It should be noted that both first and second degreearson require a specific intent "to destroy or damage a building." GeneralStatutes 53a-111, 53a-112. Arson in the third degree occurs where a person"recklessly causes destruction or damage to a building . . . byintentionally starting a fire or causing an explosion." General Statutes53a-113.

13. The written plea of nolo contendere provided as follows: "Uponthe acceptance of this plea and the entry of judgment of guilty by theCourt, the defendant will seek appellate review of the denial of thesemotions. Should the Court's rulings on these motions be affirmed on themerits, and there be no other change in the pretrial rulings anddeterminations made to date, then this plea of nolo contendere will becomefinal. Should the Supreme Court fail to affirm any or all of this Court'srulings on these motions on the merits, however, this plea of nolocontendere will be withdrawn." In view of these conditions of the plea it iscurious that the state, though agreeable to review of the motion to suppressthe confession, opposes review of the defendant's constitutional claims onthe merits on the ground that the issue is not properly before us on thepresent record, a contention we have found persuasive.

14. The claim that the sentences imposed violate our stateconstitution was not included in the motion to dismiss filed in the trialcourt. In this

The defendant has appealed from his convictionupon a conditional plea of nolo contendere toan indictment charging him with fourteen counts ofarson murder in violation of General Statutes53a-54d,1 one for each of the victims who died in thefire of an apartment building in Waterbury. The trial

[198 Conn. 94]

     court imposed on each count the statutorily mandatedsentence of lile imprisonment without eligibility forparole and structured the sentences on the fourteencounts as consecutive or concurrent to result in aneffective sentence of two consecutive life terms, 120years of imprisonment pursuant to General Statutes53a-35b, without eligibility for parole.2 The defendanthas raised three claims of error: (1) the denial ofhis motion to suppress his statement to the police afterhe had been arrested at the scene of the fire; (2) thedenial of his motion to dismiss which he based upon theclaimed unconstitutionality of our arson murder statute,53a-54d, by virtue of its inclusion of reckless aswell as intentional conduct as a sufficient basis to satisfythe "arson" element of the offense; and (3) the impositionof two consecutive terms of life imprisonment.We reach only the third of those issues, because on therecord before us the condition upon which the plea wasentered, that the defendant obtain review by this courtof the rulings upon his motions to suppress and to dismiss,cannot be fulfilled. Accordingly, we remand thecase to the trial court with direction to vacate the pleaand for further proceedings.

[198 Conn. 95]

The state recited the following factual basis for thedefendant's plea at the time it was accepted by the trialcourt: In the early morning hours of July 5, 1982, thedefendant visited the apartment of his niece at 45-47Prospect Street in Waterbury. The defendant arguedwith his niece concerning his drinking and also abouta fire he had started, by his carelessness with a cigarette,on the couch in her apartment. After the defendantcomplied with her request to leave the apartment,he returned to borrow some matches. A short timelater, the defendant set fire to some papers on the stairwayof the building. Although the police and fire unitsof the city of Waterbury arrived on the scene quickly,the blaze had already consumed the building. Thedefendant was arrested at the scene of the fire atapproximately 2 a.m. He was advised of his constitutionalrights in English and asked if he understoodthem. The defendant replied that he did. The defendantwas informed that he was under arrest and thathe was accused of setting the fire. The defendant deniedthe accusation.

The defendant was then transported to the Waterburypolice station and again advised of his constitutionalrights. He continued, when questioned, tomaintain his innocence. Following this second inquiry,he became ill and fell to the floor of his cell. He wastaken to the emergency room at St. Mary's Hospitalin Waterbury. The defendant's condition was diagnosedby a staff physician at the emergency room as an "anxietyreaction" and he was discharged from the hospital.The defendant was advised of his rights for the thirdtime at approximately 9 a.m., and he again denied thathe had set the fire. After spending the remainder ofthe day in his cell, he was summoned for further questioningat approximately 8 p.m. The defendant wasagain advised of his rights. He indicated that he understoodthem, and that he wished to make a statement,

[198 Conn. 96]

     expressly waiving his right to have a lawyer present.Because the defendant had some difficulty describingthe incident in English, a Spanish speaking officer wasinstructed to assist him At this time he was advisedof his rights in Spanish, and he once again indicatedthat he understood them. At approximately 8:30 p.m.,the defendant confessed to starting the fire by ignitingsome papers on the apartment stairway. His entirestatement was given in English. After the statementwas transcribed, he signed it and also initialed anadditional paragraph noting that the document had beenread back to him in both Spanish and English. Thedefendant also signed a form acknowledging that hehad waived his constitutional rights.

The defendant filed a motion to suppress his confession.At the hearing on the motion he claimed that thestate had failed to meet its burden of proving by apreponderance of the evidence that he had effectivelywaived his Miranda3 rights and that his confession wasvoluntary. In relation to those issues he presented psychiatrictestimony concerning his mental condition. Thetrial court denied the motion. The defendant also fileda motion to dismiss the indictment claiming that thearson murder statute violates the federal constitutioninsofar as the arson which is an element of the crimeof arson murder may be arson in either the second orthird degree. He claimed that the statutorily mandatedsentence would be disproportionate to the crimecharged, violating the eighth amendment prohibitionagainst cruel and unusual punishment. The trial courtdenied the motion to dismiss, concluding that thedefendant's motion was premature because it wasbased upon the speculative assumption that any verdictin this case would be predicated on either secondor third degree arson. On September 8, 1983, the

[198 Conn. 97]

     defendant entered pleas of nolo contendere to each ofthe fourteen counts of arson murder, reserving his rightto appeal the court's denial of his pretrial motions underGeneral Statutes 54-94a.4

I

As a general rule, an unconditional plea of guilty ornolo contendere,5 intelligently and voluntarily made,operates as a waiver of all nonjurisdictional defects andbars the later assertion of constitutional challenges topretrial proceedings. 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,

[198 Conn. 98]

     397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Bradyv. United States, 397 U.S. 742, 757, 90 S.Ct. 1463, 25L.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). Therefore, onlythose issues fully disclosed in the record which relateeither to the exercise of jurisdiction6 by the court orto the voluntary and intelligent nature of the plea areordinarily appealable after a plea of guilty or nolocontendere. Boykin v. Alabama, 393 U.S. 238, 243, 89S.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.

The legislature in 1982 altered the broad waiver ofconstitutional rights implicit in a plea of guilty or nolocontendere. Public Acts 1982, No. 82-17. General Statutes54-94a allows a defendant to enter a plea of nolocontendere, conditional on the right to take an appealfrom the trial court's denial of a motion to suppressevidence based on an unreasonable search and seizure,or from the denial of a motion to dismiss. See State v.Martin, supra, 25 n. 12; State v. Ross, 189 Conn. 42,50 n. 4, 454 A.2d 266 (1983); State v. Satti, 2 Conn. App. 219,222, 477 A.2d 144 (1984). The defendant entered

[198 Conn. 99]

     his plea under this statute. The record reveals that neitherthe trial court nor the state had any objection tothis procedure.

The threshold question on this appeal is whether theissues reserved for review by this court are within theambit of 54-94a. The defendant reserved two claims,one relating to the voluntariness of his confession, theother attacking the constitutionality of the arson murderstatute. Clearly, the former is not within the purviewof the statute. Under 54-94a, an appeal ispermitted from the denial of a motion to suppress "evidencebased on an unreasonable search and seizure"only. The defendant in this case argues that his confessionwas illegally obtained because his lack of facilitywith the English language, as well as his allegedmental impairment, made it impossible for him to relinquishhis rights effectively. Such a basis for a motionto suppress, implicating the fifth and sixth amendments,is not included in the statutory language allowingappeals only from the denial of a motion to suppressevidence obtained from an illegal search or seizure inviolation of the fourth amendment. Moreover, there isnothing in the legislative history of the statute thatwould suggest such an intention.7

The question remains whether we should exercise ourinherent supervisory authority over the administration

[198 Conn. 100]

     of justice; State v. Cohane, 193 Conn. 474,479 A.2d 763, cert. denied, 469 U.S. 990, 105 S.Ct. 397, 83L.Ed.2d 331 (1984), citing United States v. Butler,567 F.2d 885, 893 (9th Cir. 1978); and adopt a procedurethat would allow criminal defendants to enter pleasbased upon conditions other than those specified in54-94a.

Prior to the advent in 1983 of federal rule of criminalprocedure 11(a)(2),8 which allows a conditional pleaof guilty or nolo contendere with a reservation of theright to appeal rulings on "any specified pretrialmotion," the federal courts> were divided on the permissibilityof such a plea.9 (Emphasis added.) Althoughthe adoption of the rule appears to have quieted someconcerns that had arisen; United States v. Morrison,449 U.S. 361, 363 n. 1, 101 S.Ct. 665, 66 L.Ed.2d 564,reh. denied, 450 U.S. 960, 101 S.Ct. 1420, 67 L.Ed.2d385 (1981); cf. Lefkowitz v. Newsome, 420 U.S. 283,292, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975); McMannv. Richardson, supra, 770 n. 13; it has not entirely stilledobjections that the procedure (1) encourages appellatelitigation; (2) militates against achieving finality in thedisposition of criminal cases; (3) reduces the effectivenessof appellate review because of the absence of a

[198 Conn. 101]

     full trial record; and (4) compels decisions on manyissues, constitutional or otherwise, that would often beobviated by applying the harmless error doctrine in thelight of a full trial record. Comment, "ConditionalGuilty Pleas: Post Guilty Plea Appeal of NonjurisdictionalIssues," 26 U.C.L.A. L. Rev. 360, 375 (1978).Balanced against these considerations is the obviousgain in judicial efficiency that is realized whenever afull trial can be avoided as well as the opportunityafforded to defendants to enter a plea without foregoingsubstantial constitutional claims. Lefkowitz v.Newsome, supra, 292.

The conditional plea is susceptible to abuse, however,unless its use is carefully limited to significant issuesthe determination of which on appeal is likely to be dispositiveof the case. See United States v. Lace, 669 F.2d 46,53 n. 5 (2d Cir. 1982) (Newman, J., concurring). Forthis reason, the recent federal rule provides that thereserved issues must be specified in writing and thatconsent of the prosecutor as well as approval by thecourt are necessary for entry of a conditional plea. Fed.R. Crim. P., rule 11(a)(2). Our statute, 54-94a, doesnot contain these safeguards against potential abuse.The inherent power of the trial court to reject such aplea where it is clearly inappropriate affords some protectionagainst misuse of the statutory procedure, butthe court is not in a position to evaluate adequately suchprosecutorial concerns as the significance of a particularruling to the ultimate disposition of a case or theproblems entailed by delaying a trial for the periodnecessary to obtain appellate review. The prosecutoris ordinarily much more familiar with the evidence tobe presented that may not be affected by the ruling andalso with the effect of delay incident to an appeal uponthe availability of witnesses. Even where the prosecutorlooks favorably on the conditional plea, as the stateapparently does here, the parties, as well as the trial

[198 Conn. 102]

     court, must be sure that the issues reserved can properlybe reviewed on the record available. Though weperceive no problem in reviewing the ruling upon theadmissibility of the defendant's confession in this case,we have concluded, for reasons explained in part II ofthis opinion, that the issue of whether the arson murderstatute violates the constitutional prohibitionagainst cruel and unusual punishment cannot be properlyresolved at this stage of the proceeding. Theimprovident reservation of that issue under the pleahas resulted in a delay of more than two years in theultimate disposition of this case.

We are not inclined, therefore, on this occasion toresort to our general supervisory powers over appellateprocedure; Practice Book 3096, 3063, 3164;State v. Cohane, supra, 499; to allow the reservationunder a conditional plea of rulings on pretrial motionsbeyond those expressly permitted by the statute.10 Itwould be unwise to invoke our authority by reviewingthe denial of the motion to suppress the confessionbecause the condition of the defendant's plea was thathe obtain an appellate determination on the merits bothof that ruling and of the denial of his motion to dismisswhich, as we have indicated, the record does not permit.We also are of the view that until a rule has beenfashioned containing safeguards similar to thoseembodied in federal rule 11(a)(2), the trial courts>should not employ this procedural innovation exceptin situations plainly within the provisions of 54-94a.11

[198 Conn. 103]

II

Because 54-94a permits a defendant to reserve forappeal the denial of a motion to dismiss, the secondclaim reserved by the defendant, attacking the constitutionalityof the arson murder statute, appears to fallwithin the scope of the conditional plea statute. We conclude,nevertheless, that the contemplated appellatedetermination of that issue on the merits cannot be hadon the state of the record before us.

The defendant moved to dismiss the indictment insofaras the arson murder charges were predicated uponhis commission of arson in the second or third degreerather than arson in the first degree. He claimed that,since such offenses are designated as class B and C feloniesand require a less culpable state of mind than arsonin the first degree, a class A felony, the penalty providedfor arson murder is unconstitutionally disproportionateto the crime and, therefore, constitutes crueland unusual punishment prohibited by the eighthamendment to our federal constitution. See Solem v.Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637(1983). In denying this motion to dismiss, the trial courtdistinguished the Solem precedent relied upon by thedefendant because of the more serious nature of the

[198 Conn. 104]

     offenses charged in this case, but ultimately held that,regardless of the merits of his unconstitutionality claim,the defendant could not before trial assume that a guiltyverdict would necessarily be based upon arson in thesecond or third degree. The defendant has at no timeraised a constitutional challenge to a conviction of arsonmurder predicated upon arson in the first degree.

At the plea proceedings the state's narrative of thefactual basis for the plea indicated that the defendanthad intentionally ignited some papers that he hadspread on a stairway of an apartment building occupiedby his niece as well as others and thus started a conflagrationthat resulted in the deaths of fourteen persons.The state referred also to the confession of thedefendant in which he admitted visiting the apartmentof his niece and starting a fire on a couch within theapartment because of his carelessness with a cigarette.In its response to a motion for disclosure of unchargedmisconduct, the state had declared that evidence wouldbe offered that the defendant had started a fire on thecouch in the apartment of his niece shortly before hestarted the fire on the stairway that consumed thepremises. The state has contended that the second firewas the sole cause of the death of the fourteen victims.The defendant, however, has argued that, since he doesnot dispute negligently starting a fire on the couch inthe apartment of his niece, which may not have beenwholly extinguished when he left the apartment andmight have later flared up and consumed the building,a jury might find his conduct with a cigarette to constitutethe recklessness required for arson in the thirddegree.12 Thus he maintains that, if the arson murder

[198 Conn. 105]

     statute is construed to allow a person to be convictedfor merely reckless conduct in causing a fire that resultsin a death, it is unconstitutional because the severepenalties provided are greatly disproportionate to theoffense.

This court does not embark upon the resolution ofquestions involving the validity of a statute in theabsence of a practical necessity for their determinationin the case presented and a sufficient factual backgroundfor their adjudication. Alexander v. Robinson,185 Conn. 540, 548, 441 A.2d 166 (1981). "The bestteaching of this Court's experience admonishes us notto entertain constitutional questions in advance of thestrictest necessity." Parker v. Los Angeles, 338 U.S. 327,333, 70 S.Ct. 161, 94 L.Ed. 144 (1949); seeMoscone v. Manson, 185 Conn. 124, 134, 440 A.2d 848(1981) (Healey, J., concurring); State v. DellaCamera,166 Conn. 557, 560, 353 A.2d 750 (1974). Appropriatedeference to a coordinate branch of government exercisingits essential functions demands that we refrainfrom deciding constitutional challenges to its enactmentsuntil the need to do so is plainly evident. SeePoe v. Ullman, 367 U.S. 497, 503-506, 81 S.Ct. 1752,6 L.Ed.2d 989 (1961); Tribe, American ConstitutionalLaw 3-10. The defendant never attempted in hismotion for a bill of particulars to ascertain whether thestate would rely upon the fire of the couch as the predicatefor the arson murder charged in the indictment.It appears quite unlikely, nevertheless, that any occasionwill arise in this case to require a determinationof the constitutional issues raised by the defendant. Thestate declared at the plea proceeding that the arsonrelied upon in the indictment was based upon the firethe defendant had intentionally started on the stair

[198 Conn. 106]

     way for the purpose of destroying the building, a positionit has also maintained on appeal. Such a scenario,involving intentional conduct solely, would not implicatethe recklessness that's the gravamen of arson inthe third degree. "Our penal code . . . expresslydefines the terms `intentionally' and `recklessly' in suchmanner as to render them mutually exclusive." Statev. Ruiz, 171 Conn. 264, 271, 368 A.2d 222 (1976); seeGeneral Statutes 53a-3 (11) and (13). Thus it appearsthat no occasion amounting to a "practical necessity"will arise in this case to require a determination of theconstitutional issues raised by the defendant.

Furthermore, the defendant cannot mount a constitutionalchallenge to a statute on the basis of its possibleapplications in circumstances not presented by his owncase, unless first amendment freedoms are affecteda situation not claimed to exist here. State v. Pickering,180 Conn. 54, 57-58, 428 A.2d 322 (1980); State v.Cuvelier, 175 Conn. 100, 111-12, 394 A.2d 185 (1978)."According to well-established principles, a [party] whochallenges the constitutionality of a statute must provethat the statute has adversely affected a constitutionallyprotected right `under the facts of his particularcase and not merely under some possible or hypotheticalset of facts not proven to exist.'" Weil v. Miller185 Conn. 495, 501, 441 A.2d 142 (1981). "[J]udicialpower is to be exercised to strike down legislation,whether state or federal, only at the instance of onewho is himself immediately harmed, or immediatelythreatened with harm, by the challenged action." Poev. Ullman, supra, 504; United Public Workers v.Mitchell, 330 U.S. 75, 90, 67 S.Ct. 556, 91 L.Ed. 754(1947). In the absence of a clear indication in the recordthat the state is relying upon a claim that thedefendant "recklessly" caused the destruction of theapartment building and thus committed arson in thethird degree as the predicate offense for arson murder,

[198 Conn. 107]

     the defendant is not entitled to an adjudication ofthe constitutional claims raised in his motion to dismiss.As we have noted, the present record discloses that thestate asserts the contrary, relying wholly upon a claimthat the defendant intended to destroy or damage theapartment building when he started the fire on thestairway.

Because the defendant's appeal from the denial ofthe motion to dismiss, as well as his appeal from themotion to suppress his statement, are not properlyreviewable by this court, we are unable to fulfill theplea agreement entered into between the defendant andthe prosecutor. The defendant expressly bargained forappellate review of both rulings of the trial court "onthe merits."13 Our inability to comply with this agreementconstitutes a failure of consideration in the pleabargaining process. See Santobello v. New York,404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Sucha failure requires this court to vacate the defendant'spleas on the ground that they did not "constitute knowingand intelligent voluntary waivers of constitutionalrights made with sufficient awareness of the relevantcircumstances and likely consequences." United Statesv. Cox, 464 F.2d 937, 946 (6th Cir. 1972); see Boykinv. Alabama, supra; Johnson v. Zerbst, 304 U.S. 458,58 S.Ct. 1019, 82 L.Ed. 1461 (1938). A plea induced

[198 Conn. 108]

     by a court-approved promise that could not be fulfilledcannot be viewed as voluntary. United States v. White,583 F.2d 819, 826 (6th Cir. 1978); United States v.Swann, 574 F.2d 1316, 1318 (5th Cir. 1978); UnitedStates v. Hill, 564 F.2d 1179, 1180 (5th Cir. 1977).Because the defendant is foreclosed from raising thereserved issues before this court, and because the pleawas given in reliance on his ability to pursue his appellateremedy, the judgment of conviction must be setaside and the matter remanded to the Superior Courtfor further proceedings.

III

The remaining claim of error, that the court imposedtwo consecutive terms of life imprisonment on thedefendant, though presenting a constitutional question,does not involve the validity of the arson murder statutebut the application of it by the trial court. The statutedoes not specify whether sentences imposed for itsviolation under separate counts must be consecutiveor concurrent, leaving that determination to the judicialdiscretion of the court pursuant to General Statutes53a-37. The defendant contends that consecutivelife sentences based upon a single act of arson violatethe double jeopardy clause of the eighth amendmentto the federal constitution as well as the prohibitionagainst being "punished, except in cases clearly warrantedby law" of article first, 9, of our state constitution.14Our reluctance to decide constitutional issuesin advance of a present need for their determinationis overcome in this instance by three factors: (1) the

[198 Conn. 109]

     issues do not involve the invalidation of any legislativeenactment; (2) there is a practical necessity to resolvethe issues at this time, because they are likely to ariseonce more at the sentencing proceeding, even thoughthe trial court is not obligated to impose the same sentence,in the event of another conviction of the defendant;and (3) ample precedent supports our practice ofreviewing claims of error not essential to the dispositionof the appeal that will probably recur when a caseis remanded for further proceedings. State v. Morrill,197 Conn. 507, 509, 498 A.2d 76 (1985);Maltbie, Conn. App. Proc. 341; see State v. Couture,194 Conn. 530, 566, 482 A.2d 300 (1984), cert. denied,469 U.S. 1192, 105 S.Ct. 967, 83 L.Ed.2d 971 (1985).

The defendant's claim that the two consecutive lifesentences imposed on him violate the double jeopardyclause of our federal constitution invokes the protectionafforded by that provision against multiple punishmentsfor the same offense. North Carolina v. Pearce,395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656(1969). "With respect to cumulative sentences imposedin a single trial, the Double Jeopardy Clause does nomore than prevent the sentencing court from prescribinggreater punishment than the legislature intended."Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673,74 L.Ed.2d 535 (1983). As the defendant recognizesin his brief, the issue, though essentially constitutionalbecomes one of statutory construction.

We recently rejected a double jeopardy challenge toconsecutive life sentences imposed for the felony murderof two of the victims of the same robbery on theground that the reference to the death of "a person"

[198 Conn. 110]

     in General Statutes 53a-54c, our felony murder statute,was in the singular. State v. Couture, supra, 565.The same language, "causes the death of a person,"is used in the arson murder statute, 53a-54d, todescribe that element of the crime. "A fundamentalpurpose of the criminal law is to protect individualcitizens from the criminal conduct of another. Peopleare neither fungible nor amorphous. Where crimesagainst persons are involved, a separate interest of societyhas been invaded for each violation. Therefore,when two or more persons are the victims of a singleepisode there are as many offenses as there are victims."State v. Couture, supra, 565-66; State v. Gunter,132 Ariz. 64, 70, 643 P.2d 1034 (1982); State v.Irvin, 603 S.W.2d 121 (Tenn. 1980); Vigil v. State,563 P.2d 1344, 1351 (Wyo. 1977).

The defendant argues that an intention to impose thesame punishment for the single act of arson regardlessof the number of deaths caused may be gleanedfrom the legislative history of 53a-54d as well as ofthe provision of our capital felony statute; General Statutes53a-54b (8); that makes a person susceptible topunishment by death who is convicted of the "murderof two or more persons at the same time or in thecourse of a single transaction." We are unpersuaded.Nothing in the legislative history is of such significanceas to overcome the reference in 53a-54d to the deathof a single person as an essential element of the crimeof arson murder, a consideration we found persuasivein the parallel situation of felony murder. State v.Couture, supra, 565. The express reference to multiplemurders in 53a-54b as a basis for a capital felonydoes not militate against treatment of a single act ofarson resulting in the death of multiple victims as separateoffenses under 53a-54d.

[198 Conn. 111]

There is error in accepting the plea of nolo contenderewith conditions that could not be fulfilled underour procedures, the judgment is set aside and the caseis remanded to the trial court for further proceedings.

In this opinion the other judges concurred.

1. "[General Statutes] Sec. 53a-54d. ARSON MURDER. A person isguilty of murder when, acting either alone or with one or more persons, hecommits arson and, in the course of such arson, causes the death of aperson. Notwithstanding any other provision of the general statutes, anyperson convicted of murder under this section shall be punished by lifeimprisonment and shall not be eligible for parole."

2. The court made the life imprisonment terms in counts three toeight concurrent with that imposed in count one. A consecutive lifeimprisonment term was imposed in count two and the terms imposed in countsnine to fourteen were concurrent with that count. General Statutes 53a-35a,effective July 1, 1981, and applicable to crimes committed alter that date,"instituted definite sentencing and effectively eliminated parole inConnecticut . . . . The effect of General Statutes 53a-35a is to put thearson murder statute in the context of a definite sentencing scheme and torender the phrase `shall not be eligible for parole' in the statutemeaningless . . . . General Statutes 53a-54d remains effective to makearson murder a crime and to require anyone convicted of that offense toreceive a life sentence." State v. Dupree, 196 Conn. 655, 659-60,495 A.2d 691 (1985). In view of the result we reach that further trial court proceedings arenecessary, we need not consider the effect of 53a-35a upon the sentencesimposed in this case, the defendant having raised no claim of error in thatrespect.

3. See Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966).

4. "[General Statutes] Sec. 54-94a. CONDITIONAL NOLO CONTENDEREPLEA. APPEAL OF DENIAL or MOTION TO SUPPRESS OR DISMISS. When a defendant,prior to the commencement of trial, enters a plea of nolo contendereconditional on the right to take an appeal from the court's denial of thedefendant's motion to suppress evidence based on an unreasonable searchor seizure or motion to dismiss, the defendant after the imposition ofsentence may file an appeal within the time prescribed by law. The issue tobe considered in such an appeal shall be limited to whether it was properfor the court to have denied the motion to suppress or the motion todismiss. A plea of nolo contendere by a defendant under this section shallnot constitute a waiver by the defendant of nonjurisdictional defects in thecriminal prosecution."

5. "A plea of nolo contendere has the same legal effect as a pleaof guilty on all further proceedings within the indictment. North Carolinav. Alford, 400 U.S. 25, 35-36 n. 8, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970);Lawrence v. Kozlowski, 171 Conn. 705, 372 A.2d 110 (1976), cert. denied,431 U.S. 969, 97 S.Ct. 2930, 53 L.Ed.2d 1066 (1977); see State v. Godek,182 Conn. 353, 363-64, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031,101 S.Ct. 1741, 68 L.Ed.2d 226 (1981). The only practical difference isthat the plea of nolo contendere may not be used against the defendant asan admission in a subsequent criminal or civil case. 4 Wigmore, Evidence(Chadbourn Rev. 1972) 1066(2), p. 81; Lenvin & Meyers, `Nolo Contendere:Its Nature and Implications,' 51 Yale L.J. 1255 (1942)." State v. Martin,197 Conn. 17, 20-21 n. 7, 495 A.2d 1028 (1985). It is clear, however, that anolo contendere plea also constitutes a waiver of all nonjurisdictionaldefects in a manner equivalent to a guilty plea. Lott v. United States,367 U.S. 421, 81 S.Ct. 1563, 6 L.Ed.2d 940 (1961); United States v. DePoli,628 F.2d 779, 781 (2d Cir. 1980).

6. A plea, whether conditional or unconditional, does not precludereview of "jurisdictional defects." Those defects have been characterizedas those which would prevent a trial from occurring in the first place.Saltzburg, "Pleas of Guilty and the Loss of Constitutional Rights: TheCurrent Price of Pleading Guilty," 76 Mich. L. Rev. 1265, 1285-86 (1978).Thus, after an unqualified plea of guilty or nolo contendere, a defendantmay challenge his conviction if the conviction is in violation of the doublejeopardy clause; Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d195 (1975); if the court lacks subject matter jurisdiction over the case;Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); orif the statute under which the defendant is charged is unconstitutional.Haynes v. United States, 390 U.S. 85, 87 n. 2, 88 S.Ct. 722, 19 L.Ed.2d 923(1968); see 1 Wright, Federal Practice and Procedure: Criminal 2d (1982)175, pp. 624-28.

7. During the regular session of the senate, Senator Howard T.Owens, Jr., moved for acceptance of the joint committee's report and thepassage of the bill. 1982 Sess., S.B. 20. In describing the function of thebill, the senator gave an example involving a defendant charged withpossession of cocaine who wants to challenge the search and seizure warrantas ineffective. The senator explained that in the absence of a conditionalplea procedure, the defendant is forced to go through the entire expense oftrial, merely to appeal an unfavorable ruling on his motion to suppress.Nowhere in the legislative history is it suggested that 54-94a could beused to challenge a motion to suppress anything other than evidence obtainedcontrary to search and seizure principles. See 25 S. Proc., Pt. 2,1982 Sess., pp. 350-53; 25 H.R. Proc., Pt. 3, 1982 Sess., pp. 587-91.

8. Rule 11(a)(2) of the federal rules of criminal procedureprovides: "With the approval of the court and the consent of the government,a defendant may enter a conditional plea of guilty or nolo contendere,reserving in writing the right, on appeal from the judgment, to review ofthe adverse determination of any specified pretrial motion. If the defendantprevails on appeal, he shall be allowed to withdraw his plea."

9. Two circuits had approved the entry of conditional pleas; UnitedStates v. Moskow, 588 F.2d 882 (3d Cir. 1978); United States v. Burke,517 F.2d 377 (2d Cir. 1975); while two others had merely praised theconcept. United States v. Clark, 459 F.2d 977 (8th Cir. 1972); United Statesv. Dorsey, 449 F.2d 1104 (D.C. Cir. 1971). Three circuits had concluded thatthe use of the conditional plea in the absence of statutory authority orcourt rule is improper. United States v. Brown, 499 F.2d 829 (7th Cir.1974); United States v. Sepe, 474 F.2d 784, aff'd en banc, 486 F.2d 1044(5th Cir. 1973); United States v. Cox, 464 F.2d 937 (6th Cir. 1972); seegenerally United States v. DePoli, 628 F.2d 779, 781 (2d Cir. 1980).

10. We need not consider whether General Statutes 54-94a is a ruleof practice or procedure not binding upon the Superior or Supreme of this state; State v. Clemente, 166 Conn. 501, 507, 353 A.2d 723 (1974);since the trial court implicitly acquiesced in the statutory procedure. SeeAdams v. Rubinow, 157 Conn. 150, 156, 251 A.2d 49 (1968). This court alsoapproves the conditional plea procedure set forth in the statute subject tothe general authority of the trial court to refuse to accept such a pleawhere it is inappropriate, as in this case.

11. We are not presented in this case with claims of theinadmissibility of statements of a defendant to the police that areintertwined with a motion to suppress evidence based on an unreasonablesearch and seizure, as in our recent decision of State v. Torres,197 Conn. 620, 500 A.2d 1299 (1985). In that case the ruling on the motionto suppress had been properly reserved under General Statutes 54a-94a[54-94a]. Considerations of fairness and judicial economy dictated that theclosely related issues concerning the statements of the defendant madeduring the search as well as afterward should also be resolved. In the caseon appeal, the issues concerning the confession are not related to a claimof an unlawful search. Furthermore, as discussed in part II, the remainingissue reserved involving the constitutionality of General Statutes 53a-54d,our arson murder statute, cannot be reviewed on the present record. Thusnone of the issues reserved under the nolo contendere plea is properlybefore us.

12. In the defendant's motion to dismiss, he challenged theconstitutionality of an arson murder conviction predicated on both secondand third degree arson. It appears, however, that he has abandoned his claimas to second degree arson, as it was addressed neither in his brief norduring oral argument. It should be noted that both first and second degreearson require a specific intent "to destroy or damage a building." GeneralStatutes 53a-111, 53a-112. Arson in the third degree occurs where a person"recklessly causes destruction or damage to a building . . . byintentionally starting a fire or causing an explosion." General Statutes53a-113.

13. The written plea of nolo contendere provided as follows: "Uponthe acceptance of this plea and the entry of judgment of guilty by theCourt, the defendant will seek appellate review of the denial of thesemotions. Should the Court's rulings on these motions be affirmed on themerits, and there be no other change in the pretrial rulings anddeterminations made to date, then this plea of nolo contendere will becomefinal. Should the Supreme Court fail to affirm any or all of this Court'srulings on these motions on the merits, however, this plea of nolocontendere will be withdrawn." In view of these conditions of the plea it iscurious that the state, though agreeable to review of the motion to suppressthe confession, opposes review of the defendant's constitutional claims onthe merits on the ground that the issue is not properly before us on thepresent record, a contention we have found persuasive.

14. The claim that the sentences imposed violate our stateconstitution was not included in the motion to dismiss filed in the trialcourt. In this

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