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State v. Swebilius

Appellate Court of Connecticut

July 7, 2015

STATE OF CONNECTICUT
v.
JON SWEBILIUS

Argued April 7, 2015

Substitute information charging the defendant with the crime of possession of child pornography in the first degree, brought to the Superior Court in the judicial district of New Haven at Meriden, geographical area number seven, where the court, S. Moore, J., denied the defendant's motion to dismiss; thereafter, the defendant was presented to the court, Scarpellino, J., on a conditional plea of nolo contendere; judgment of guilty, from which the defendant appealed to this court.

SYLLABUS

Convicted, on a conditional plea of nolo contendere, of the crime of possession of child pornography in the first degree, the defendant appealed to this court. He claimed that the trial court improperly denied his motion to dismiss, in which he alleged that his prosecution was time barred by the applicable statute of limitations (§ 54-193 [b]). Specifically, he claimed that although a warrant for his arrest was issued within the five year statute of limitations, it was not executed until thirty-one days later, after the expiration of the limitation period, and that the delay in execution of the warrant was unreasonable. The record showed that, after issuance of the warrant, the state police took no affirmative action during the ensuing thirty-one day period to serve the warrant prior to the service on the defendant when he surrendered himself as he had arranged at the state police headquarters. Thus, the defendant claimed that the statute of limitations was not tolled because the state failed to exercise due diligence in serving the warrant. Held that the trial court properly denied the defendant's motion to dismiss, that court having properly determined that the thirty-one day period between the issuance and service of the warrant in the present case did not amount to unreasonable delay; although the defendant had satisfied his burden of demonstrating that he was not elusive, was available, and was readily approachable, which shifted the burden to the state to demonstrate that the delay between issuance and service of the warrant was reasonable, the defendant's claim that the trial court improperly made a per se determination of reasonableness by relying solely on the length of delay and not considering the actions of the state police was unavailing, as the period of inaction by the state police was so brief that it did not require justification, and given that the delay was so short, evidence on behalf of the state as to the police department's actions within that window was not required.

Daniel M. Erwin, for the appellant (defendant).

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and James Dinnan, senior assistant state's attorney, for the appellee (state).

Alvord, Prescott and Schaller, Js. ALVORD, J. In this opinion the other judges concurred.

OPINION

ALVORD, J.

Page 602

[158 Conn.App. 419] The defendant, Jon Swebilius, appeals from the judgment of conviction, rendered following [158 Conn.App. 420] his conditional plea of nolo contendere,[1] of possession of child pornography in the first degree in violation of General Statutes § 53a-196d (a) (1).[2] On appeal, the defendant claims that the trial court improperly denied his motion to dismiss because his prosecution was time barred by the statute of limitations set forth in General Statutes § 54-193 (b).[3] He claims that the delay in execution of the warrant for his arrest was unreasonable

Page 603

pursuant to State v. Crawford, 202 Conn. 443, 521 A.2d 1034 (1987). We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the defendant's claim. On May 28, 2008, the Connecticut State Police executed a search warrant at the Meriden Inn on room number 59, where the defendant was residing. The search resulted in police seizure of thirty-four computer related items, which were transported to the state forensic laboratory and submitted for forensic analysis. On April 2, 2013, the police received a report containing the findings of the forensic analysis. The report indicated that images and videos appearing to depict child pornography had been recovered from the items seized.[4] On May 9, 2013, police obtained a warrant for the defendant's arrest for possession of child pornography in the first degree in violation of § 53a-196d. The charged offense had a five year statute of limitations, expiring on May 28, 2013.[5] [158 Conn.App. 421] The defendant testified that he became aware, at some point after he believed the statute of limitations had expired, that a warrant had been issued for his arrest. He further testified that he had called the police and " told them that I discovered that I had been arrested or that there was a warrant for me. And after conversation, I said I will be in, I don't remember how many days later, and that I would turn myself in, which I did." The defendant turned himself into the Connecticut State Police on June 10, 2013.

By motion filed October 10, 2013, the defendant sought to dismiss the information, claiming that the statute of limitations had not been tolled because the state had failed to exercise due diligence in serving the warrant. In his motion, he argued that he had been available and had not taken elusive action during the time in which the warrant should have been ...


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