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. Kelley

Appellate Court of Connecticut

March 29, 2016

STATE OF CONNECTICUT
v.
TYRONE LAWRENCE KELLEY

         Argued January 19, 2016.

          Information charging the defendant with violation of probation, brought to the Superior Court in the judicial district of New Haven and tried to the court, Vitale, J.; judgment revoking the defendant's probation, from which the defendant appealed to this court.

          SYLLABUS

         The defendant appealed to this court from the judgment of the trial court finding him in violation of his probation following his subsequent arrests for various crimes. The defendant's five year period of probation commenced in 2008. The defendant was arrested in 2009 for certain drug related offenses, and, thereafter, he was arrested and arraigned for violation of his probation arising out of that arrest. While those charges were pending, the defendant was arrested in 2011 following a robbery. The defendant's hearing on the revocation of his probation was consolidated with the 2014 criminal trial arising out of his 2011 arrest. After the trial court presided over the jury trial on the 2011 charges and after receiving evidence concerning the 2009 arrest for the drug related offenses, that court found, by a preponderance of the evidence, that the defendant had violated the terms of his probation by committing the crimes charged, and that the beneficial aspects of his probation were no longer being served. The court ordered revocation of the defendant's probation, from which the defendant appealed. The defendant claimed for the first time on appeal that the trial court did not have subject matter jurisdiction over the revocation of probation proceeding in 2014 because the five year period of his probation had concluded in 2013. Held :

         1. The defendant's claim that the trial court lacked jurisdiction over the revocation of his probation was unavailing in light of the probation tolling statute (§ 53a-31 [b]), pursuant to which his arraignment following his 2009 arrest for violating the terms of his probation interrupted the period of his sentence until a final determination as to the violation had been made by the trial court: moreover, the defendant could not prevail on his claim that, pursuant to the statute (§ 53a-32 [c]) pertaining to violation of probation, the trial court was without jurisdiction over the violation of probation charge because the court did not schedule a hearing on or dispose of the charge no later than 120 days after the arraignment on that charge, as neither the text of § 53a-32 (c) nor the legislative history concerning the addition of the 120 day language indicated that that time period implicated the subject matter jurisdiction of the trial court; furthermore, even if § 53a-32 (c) implicated subject matter jurisdiction, the defendant failed to provide this court with an adequate record to review his claim that the trial court failed to comply with that statute.

         2. The trial court did not abuse its discretion in sentencing the defendant to a term of five years incarceration upon revoking his probation, as the court had the authority to sentence the defendant to serve the sentence originally imposed; contrary to the defendant's claim, he had not already served most of his probationary period because it was tolled by the issuance of his 2009 arrest warrant, the defendant provided no authority for the proposition that a sentencing judge in a probation revocation proceeding is obligated to credit the amount of time served in a probationary period in sentencing a defendant whose probation has been revoked, and the court found that the beneficial aspects of rehabilitation were not being served by the continuation of the defendant's probation.

         Robert E. Byron, assigned counsel, for the appellant (defendant).

         Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, Maxine V. Wilensky, senior assistant state's attorney, and LisaMaria Proscino, special deputy assistant state's attorney, for the appellee (state).

         Gruendel, Alvord and West, Js.[1] GRUENDEL, J. In this opinion the other judges concurred.

          OPINION

          [164 Conn.App. 234] GRUENDEL, J.

          The defendant, Tyrone Lawrence Kelley, appeals from the judgment of the trial court revoking his probation and committing him to the custody of the commissioner of correction for five years. His principal claim is that the court lacked subject matter jurisdiction over the probation revocation proceeding. The defendant also argues, in the alternative, that the court abused its discretion in sentencing him. We affirm the judgment of the trial court.

         In 2004, the defendant was convicted of possession of narcotics with the intent to sell in violation of General Statutes § 21a-277 (a). On November 19, 2004, the court sentenced the defendant to a term of nine years incarceration, execution suspended after four years, with five years of probation. The conditions of his probation required, inter alia, that the defendant " not violate any criminal law of the United States, this state or any other state or territory."

         On September 19, 2008, the defendant's probationary period commenced upon his release from the custody of [164 Conn.App. 235] the Department of Correction. Approximately thirteen months later, the defendant on October 26, 2009, was arrested and charged with, inter alia, possession of a controlled substance in violation of General Statutes (Rev. to 2009) § 21a-279 (c). In response, his probation officer obtained an arrest warrant for the defendant's violation of the terms of his probation.[2] While those charges were pending, the defendant again was arrested following an incident that transpired on August 7, 2011, and was charged with robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), carrying a pistol without a permit in violation of General Statutes § 29-35, criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1), and interfering with a police officer in violation of General Statutes § 53a-167a (a).

         On March 24, 2014, the state filed a long form information alleging that the defendant breached the terms of his probation in violation of General Statutes § 53a-32, due to his October 26, 2009, and August 7, 2011 arrests. The parties thereafter stipulated to the consolidation of the defendant's probation revocation proceeding with the May, 2014 trial on his criminal charges stemming from the events of August 7, 2011. During that trial, the state presented testimonial and documentary evidence regarding the offenses allegedly committed on that date. In addition, 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.