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State v. Galberth

Court of Appeals of Connecticut

August 29, 2017

STATE OF CONNECTICUT
v.
SHAKEE S. GALBERTH

          Argued May 25, 2017

         Procedural History

         Information charging the defendant with violation of probation, brought to the Superior Court in the judicial district of Fairfield, geographical area number two, where the court, Cradle, J., denied the defendant's motion to dismiss; thereafter, the defendant was presented to the court on a conditional plea of nolo contendere; judgment of guilty in accordance with the plea, from which the defendant appealed to this court. Affirmed.

          Edward G. McAnaney, assigned counsel, for the appellant (defendant).

          Harry Weller, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, Jonathan M. Sousa, former special deputy assistant state's attorney, and Marc R. Durso, senior assistant state's attorney, for the appellee (state).

          Sheldon, Beach and Mihalakos, Js.

         Syllabus

         The defendant appealed to this court following the trial court's denial of his motion to dismiss his violation of probation charge. In November, 2002, the defendant pleaded guilty to the sale of a narcotic substance, and was sentenced to fifteen years of imprisonment, execution suspended after six years, followed by three years of probation. In April, 2005, he was granted parole with a maximum release date in September, 2007, but, in April, 2006, while on parole, the defendant was arrested for additional narcotics offenses. He pleaded guilty to the 2006 charges, and was incarcerated from October, 2006, to July, 2012. In December, 2012, the defendant was again arrested and charged with four additional counts of the sale of a narcotic substance. In January, 2013, a warrant was issued for the defendant's arrest on the ground that he had violated his probation, and, the following month, he was arrested and charged with violation of probation. Subsequently, the defendant filed a motion to dismiss the violation of probation charge on the ground that he was not legally on probation in 2013 when the violation of probation warrant was executed, based on his arrest on the 2012 narcotics charges. The trial court denied the defendant's motion to dismiss, and after the defendant's plea of nolo contendere to the charge of violation of probation, this appeal followed.

         Held:

         1. The defendant could not prevail on his claim that the trial court did not have subject matter jurisdiction over the probation violation proceeding because he was not on probation at the time the warrant for his arrest for violation of probation was executed or at the time of the subsequent hearing on his motion to dismiss: the court's jurisdiction over the probation revocation proceeding was derived from the defendant's original criminal proceeding in 2002, and the probationary period imposed as part of the 2002 sentence was at issue before the court, and therefore the trial court had jurisdiction over the defendant's subsequent violation of probation charge.

         2. The defendant could not prevail on his claim that the trial court improperly denied his motion to dismiss the violation of probation charge because he had completed the three year probationary portion of his 2002 sentence prior to his arrest on the 2012 narcotics charges, which formed the basis of the arrest warrant for the violation of probation: pursuant to statute (§ 53a-31 [a]), a defendant cannot be released from imprisonment for the purposes of commencing his probationary period until he is no longer in the custody of the Commissioner of Correction, and a defendant on parole is not functionally released from imprisonment, and because the defendant here was in the continuous custody of the Commissioner of Correction for an extended period of time due to his incarceration for additional narcotics offenses committed in 2006 while he was on parole, the defendant did not commence his probation until he was released from custody in July, 2012, and, therefore, he did not complete the probationary portion of his 2002 sentence prior to January, 2013, when the arrest warrant for the violation of probation was issued.

          OPINION

          MIHALAKOS, J.

         The defendant, Shakee S. Galberth, appeals following the trial court's denial of his motion to dismiss his violation of probation charge. On appeal, the defendant claims that the trial court (1) did not have subject matter jurisdiction over the probation violation proceeding, and (2) improperly denied his motion to dismiss because his probationary period had expired. We disagree with the defendant and, accordingly, affirm the judgment of the trial court.

         The following facts and procedural history are relevant to our review. On November 20, 2002, the defendant pleaded guilty to three counts of the sale of a narcotic substance in violation of General Statutes § 21a-277 (a)[1] and was sentenced to fifteen years of imprisonment, execution suspended after six years, followed by three years of probation (2002 sentence). On April 29, 2005, he was granted parole with a maximum release date of September 7, 2007.[2] On April 18, 2006, while on parole, the defendant was arrested for several more narcotics offenses (2006 charges). He pleaded guilty to the 2006 charges and was sentenced to an additional eighty-one months of incarceration, to run concurrently with the remainder of his 2002 sentence. His probationary period from the 2002 sentence was not addressed by the court. He was incarcerated from October 2, 2006, to July 20, 2012. On July 24, 2012, he signed the document containing the conditions of his probation, and his probationary period began. Subsequently, on December 7, 2012, while on probation, the defendant was arrested and charged with four counts of the sale of a narcotic ...


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