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State v. Obas

Supreme Court of Connecticut

February 9, 2016

STATE OF CONNECTICUT
v.
MYCALL OBAS

         Argued October 5, 2015.

Page 253

          Substitute information charging the defendant with the crimes of sexual assault in the first degree, sexual assault in the second degree and failure to appear in the first degree, brought to the Superior Court in the judicial district of Danbury, where the defendant was presented to the court, Mintz, J., on a plea of guilty to sexual assault in the second degree; thereafter, the state entered a nolle prosequi as to the remaining charges and the court, Mintz, J., rendered judgment of guilty in accordance with the plea; subsequently, the court, Blawie, J., granted in part the defendant's motion to modify probation and denied the state's request for permission to appeal, and the state appealed to the Appellate Court, DiPentima, C. J., and Sheldon and Flynn, Js., which reversed the trial court's judgment only with respect to the denial of the state's request for permission to appeal and affirmed the judgment in all other respects, and the state, on the granting of certification, appealed to this court.

          SYLLABUS

         Pursuant to statute (§ 54-251 [b]), the trial court may exempt any person convicted of sexual assault in the second degree from registering as a sex offender if the court finds that such person was under nineteen years of age at the time of the offense and that registration is not required for public safety. The defendant, who had served seven years of probation after having been convicted on a guilty plea of the crime of sexual assault in the second degree in connection with an incident when he was eighteen years old and the victim was 15 years old, filed a motion to modify probation seeking, inter alia, to be exempted from continued registration as a sex offender pursuant to § 54-251 (b). The defendant had entered into a plea agreement with the state that included, inter alia, a special condition of probation requiring him to register as a sex offender for a period of ten years. After contested hearings on the defendant's motion to modify, the trial exempted the defendant from continued registration as a sex offender, finding that he was under nineteen years of age at the time of the offense and that registration was not required for public safety. The state subsequently appealed to the Appellate Court claiming, inter alia, that applications for exemption under § 54-251 (b) must be made before the obligation to register has commenced and that the plea agreement in the present case divested the trial court of its authority to modify the conditions of the defendant's probation. The Appellate Court affirmed the judgment of the trial court and the state, on the granting of certification, appealed to this court. Held :

         1. The Appellate Court properly determined that the trial court had the authority to grant the defendant's application for an exemption, this court having concluded that the defendant retained the right to file an application for an exemption from registration under § 54-251 (b) after having been placed on the sex offender registry for seven years; the plain language of § 54-251 (b), which included the broad, permissive phrase " may exempt" without qualification by, nor limitation to, any particular temporal requirement, was construed to mean that a court may exercise its discretion to grant an exception once an individual, like the defendant here, has been convicted of sexual assault in the second degree regardless of whether the individual's obligation to register has commenced so long as the two criteria set forth in § 54-251 (b) have been satisfied.

         2. The state could not prevail on its claim that the defendant was precluded from exercising his right to file an application for an exemption from registration pursuant to § 54-251 (b) because he had entered into a plea agreement with the state that unambiguously required him to register as a sex offender for a period of ten years; it was undisputed that the defendant did not explicitly waive his right to file an application for an exemption under the terms of the plea agreement, and construing the plea agreement in the defendant's favor, this court did not infer from the defendant's mere assent to register as a sex offender for the statutory minimum term of ten years pursuant to § 54-251 (a) that he forfeited his right to seek an exemption pursuant to § 54-251 (b).

         Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Sean P. McGuinness, assistant state's attorney, for the appellant (state).

         Neal Cone, senior assistant public defender, with whom were Rosemary Chapdelaine, senior assistant public defender, and, on the brief, Lauren Weisfeld, public defender, for the appellee (defendant).

         Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js. EVELEIGH, J. In this opinion the other justices concurred.

          OPINION

Page 254

         [320 Conn. 428] EVELEIGH, J.

         The state appeals from the judgment of the Appellate Court affirming the decision of the trial court granting the application of the defendant, Mycall Obas, to be exempted from continued registration as a sex offender pursuant to General Statutes § 54-251 (b).[1] [320 Conn. 429] On appeal, the state claims that the Appellate Court improperly concluded that the trial court had the authority to grant the defendant's application for an exemption from registration approximately seven years after he had commenced registration notwithstanding his plea agreement with the state.[2] We conclude

Page 255

that the Appellate Court properly determined that the trial court had the authority to grant the defendant's application for an exemption from registration and, accordingly, affirm the judgment of the Appellate Court.

         The opinion of the Appellate Court sets forth the following undisputed facts and procedural history. " The defendant pleaded guilty to one count of sexual assault in the second degree [in violation of General Statutes § 53a-71 (a) (1)] on December 11, 2003. The plea stemmed from a 2002 incident when the defendant was eighteen years old and a high school senior. The victim was a fifteen year old student who attended the same school as the defendant. According to the prosecutor, the victim never complained that her sexual involvement with the defendant was not consensual.

         " The defendant cooperated fully with the police investigation and agreed to testify [in a related criminal prosecution]. As part of the plea agreement struck between the defendant and the state, the defendant received a ten year sentence of imprisonment, suspended after the mandatory minimum nine months, followed by ten years of probation. The prosecutor [320 Conn. 430] explained to the court: 'The conditions would be: to register as a sex offender, that's a ten year registration . . . . [The] sex offender evaluation and any treatment deemed necessary. No [unsupervised] contact with any individual . . . under [sixteen] and no contact, whatsoever, directly or indirectly with the victim.' There was no agreement between the defendant and the state that the defendant would never seek modification of the conditions of probation.

         " Following the prosecutor's recitation of the underlying facts, plea agreement, and recommendation for a split sentence followed by probation with special conditions, the court canvassed the defendant.

         " 'The Court: You've heard the agreed upon recommendation, which is ten years, execution suspended after nine months, which is a mandatory minimum, ten years of probation, standard issues--standard conditions of probation, special conditions of sex offender evaluation and treatment, as deemed necessary . . . . Registration under sex offender status for [ten] years, no contact with the victim and no unsupervised contact with anyone under . . . [sixteen] years of age. Do you understand that to be the agreed upon recommendation?

         " 'The Defendant: Yes, Your Honor.'

         " The court accepted the defendant's plea and imposed sentence in accordance with the agreed upon disposition. The defendant was ordered, '[i]n addition to the standard conditions of probation,' to register as a sex offender for a period of ten years, to undergo sex offender evaluation and treatment as deemed necessary, to have no unsupervised contact with anyone under [the] age [of] sixteen and to have no contact with the victim.

         " Upon his release from custody in November, 2004, the defendant began reporting to the Office of Adult [320 Conn. 431] Probation, registering as a sex offender and receiving sex offender treatment. He violated his probation in 2005 by failing to report a change of address following his parents' eviction from their home. For this violation, two additional years were added to his probation. Since the 2005 violation, the defendant has reported timely to his

Page 256

assigned probation officer, has continued to receive sex offender treatment, and has not engaged in any additional criminal activity. He earned a high school diploma, enrolled in community college and has maintained a full-time job.

         " In 2011, the defendant filed a motion to modify the conditions of his probation. Specifically, the defendant asked that the term of his probation be reduced and that the order that he register as a sex offender be terminated. As a predicate for the hearing on the defendant's motion, the court ordered him to undergo an additional psychosexual evaluation. The evaluation concluded that the defendant presented a low risk of reoffending and that he 'would not be one whom the community should fear.' . . . Three separate probation status reports authored by the defendant's supervising officer in the sex offender unit lauded his rehabilitation and raised no objection to the defendant's requested modification.

         " Following contested hearings on January 31, 2012, and April 20, 2012, the [trial] court . . . exempted the defendant from the continued obligation to register as a sex offender under § 54-251. Pursuant to § 54-251 (b), the court made findings that the defendant was under nineteen years of age at the time of the offense and that registration was not required for public safety. The court also modified the probation condition prohibiting unsupervised contact with anyone under age sixteen to allow such interactions but only to the extent approved by the Office of Adult Probation. In addition, the court allowed the defendant to travel to South Africa [320 Conn. 432] as approved by the Office of Adult Probation. The court denied that ...


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