Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Rodriguez

Supreme Court of Connecticut

March 15, 2016

STATE OF CONNECTICUT
v.
JOSUE RODRIGUEZ

         Argued November 4, 2015.

Page 732

          Information charging the defendant with violation of probation, brought to the Superior Court in the judicial district of New Britain, geographical area number fifteen, and tried to the court, Espinosa, J.; judgment revoking the defendant's probation, from which the defendant appealed to the Appellate Court, Gruendel, Beach and Schaller, Js., which dismissed in part the defendant's appeal and affirmed the judgment of the trial court, and the defendant, on the granting of certification, appealed to this court.

          SYLLABUS

         The defendant, who had been on probation following his conviction for various criminal offenses, appealed to the Appellate Court from the trial court's judgment revoking his probation and sentencing him to twelve years incarceration. The defendant, while on probation, was arrested and charged with attempt to commit arson in the second degree in connection with an incident that occurred at his former wife's house. On the same day that the trial court rendered judgment revoking the defendant's probation, the defendant appeared before another trial judge and pleaded guilty to the arson charge. On appeal, the defendant contended that there was insufficient evidence for the court to find that he had violated the terms of his probation. The defendant did not challenge on appeal his guilty plea to the arson charge, but, instead, filed a petition for a writ of habeas corpus in which he contended that the attorney who represented him at the probation revocation hearing and at the hearing on his guilty plea was ineffective and subject to conflicts of interest, and the defendant sought relief from both the arson conviction and the finding of violation of probation. The Appellate Court affirmed the trial court's judgment revoking the defendant's probation but dismissed as moot his claim that there was insufficient evidence to establish that he violated his probation. On the granting of certification, the defendant appealed to this court. Held that the Appellate Court properly determined that the defendant's claim that there was insufficient evidence for the trial court to find that he had violated the terms of his probation was rendered moot when he subsequently pleaded guilty to the criminal charge underlying the finding of violation of probation, and the defendant's collateral attack on the intervening criminal conviction, by filing a habeas petition attacking that plea during the pendency of the violation of probation appeal, did not revive the controversy so as to render his direct appeal justiciable; furthermore, this court concluded that, in light of the expansive relief sought by the defendant in his habeas petition, should he prevail in his attack on the arson plea, the habeas court also may afford him appropriate relief in the violation of probation matter.

         David V. DeRosa, assigned counsel, for the appellant (defendant).

         Harry Weller, senior assistant state's attorney, with whom, on the brief, was Brian Preleski, state's attorney, for the appellee (state).

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

          OPINION

Page 733

         [320 Conn. 695] McDONALD, J.

         When a criminal defendant has been found to have violated the terms of his probation on the basis of allegations that he has committed a new crime while on probation, his appeal from the finding of violation of probation, contending that there was insufficient evidence for the trial court to conclude that he committed the new crime, is rendered moot if, subsequent to that finding, he either pleads guilty to or is convicted at trial of having committed the new crime. This is true because, as a matter of law, when a condition of probation is that the offender is to refrain from violating any criminal laws, conviction of a new crime conclusively establishes a probation violation. In State v. T.D., 286 Conn. 353, 360, 944 A.2d 288 (2008), however, we recognized a narrow exception to this rule: when a defendant under these circumstances takes a timely direct appeal from his conviction on the new criminal charge, his violation of probation cannot be presumed, and an appellate court is not barred from considering the merits of the probation violation appeal. The question presented by this appeal is whether this exception to the mootness doctrine extends to cases [320 Conn. 696] in which the defendant fails to take a timely appeal from his guilty plea to the new crime but, instead, challenges the plea collaterally in a habeas corpus proceeding. We conclude that a habeas corpus petition, unlike a direct appeal, does not keep alive a defendant's claim that there was insufficient evidence to find him in violation of his probation.

         The relevant factual and procedural history is set forth in the opinion of the Appellate Court. See State v. Rodriguez, 130 Conn.App. 645, 646-49, 23 A.3d 826 (2011). " In 2005, the defendant [Josue Rodriguez] was convicted of sale of narcotics in violation of General Statutes § 21a-277 (a), and sentenced to twelve years incarceration, execution suspended, with five years probation. As a condition of the defendant's probation, he was not to violate the criminal laws of the state. In 2007, the defendant was convicted of risk of injury to a child in violation of General Statutes § 53-21 (a) (1) and burglary in the third degree in violation of General Statutes § 53a-103. He was sentenced to a total effective term of ten years incarceration, execution suspended, and five years probation. The defendant also was found in violation of his probation imposed in 2005, as a result of those offenses. His probation was not revoked, but, rather, it was to run concurrently with the probationary term imposed for the [2007] conviction. The conditions of his [2007] probation included, inter alia, no contact with the victim, Damaris Sanchez, and a 'zero tolerance' provision for any [future] violations." Id., 646-47.

         " In the early morning hours on November 14, 2008, Sanchez, the defendant's former wife with whom he had an 'on and off' relationship, was asleep in her home when she awoke to the smell of gasoline fumes. When she looked outside the house, she saw a shadowy human figure walk near the front of her house. When she saw the person's face, she recognized the person as the defendant. She saw the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.