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State v. Patel

Supreme Court of Connecticut

November 14, 2017


         The petition of the defendant, filed March 23, 2017, for review of the trial court order revoking bail pending sentencing, having been presented to the court, it is hereby ordered granted but the relief requested is denied.

          PER CURIAM.

          Article first, § 8, of the Connecticut constitution provides that ‘‘[i]n all criminal prosecutions, the accused shall have a right . . . to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great . . . .'' The principal issue before this court is whether the constitutional right to bail is extinguished when a defendant has been found guilty of a criminal offense or whether it continues until the defendant has been sentenced for that offense.

         The defendant, Hiral Patel, was released pretrial on a $1 million bond, which the court increased to $1.5 million following the jury's verdict finding him guilty of murder in violation of General Statutes § 53a-54a, and other offenses, pending sentencing. Six weeks later, pursuant to the state's request, the court revoked the defendant's bail, solely on the ground that it lacked authority to release him under General Statutes § 54-63f.[1] The defendant now seeks review of that order.[2]He contends that our state constitution affords him a right to bail until sentence is imposed, and, accordingly, to the extent that § 54-63f bars the release of persons who have been convicted of homicide offenses pending sentencing, it is unconstitutional. In light of the significance of the issue and the constraints of page limitations for petitions for review; see Practice Book § 66-2 (b); we asked the parties to file supplemental briefs elaborating upon this issue, as well as a potential jurisdictional obstacle to review. We conclude that we have jurisdiction over the petition and grant review but conclude that the right to bail under article first, § 8, of the Connecticut constitution is extinguished upon conviction, i.e., a finding of guilt, accepted by the court.


         We begin with the state's contention that there are two jurisdictional impediments to our review of the merits of the petition. First, the state contends that General Statutes § 54-63g and Practice Book § 78a-1, which the defendant has invoked as the basis for this court's jurisdiction, do not apply to postconviction bail orders. Section 54-63g provides in relevant part: ‘‘Any accused person or the state, aggrieved by an order of the Superior Court concerning release, may petition the Appellate Court for review of such order. . . .'' Practice Book § 78a-1 provides nearly identical language. The state contends that neither provision applies because, following the jury's verdict, the defendant is no longer ‘‘accused'' but, instead, is ‘‘convicted.'' We disagree.

         Although ‘‘accused'' is a term historically and most commonly understood to mean a person charged with a crime; see, e.g., The Random House Dictionary of the English Language (1966); Webster's New Twentieth Century Dictionary (1964); it also has occasionally been given a more generic meaning, simply referring to a criminal defendant. See, e.g., Black's Law Dictionary (4th Ed. 1968) (‘‘‘[a]ccused' is the generic name for the defendant in a criminal case, and is more appropriate than either ‘prisoner' or ‘defendant' ''); The American Heritage Dictionary of the English Language (1969) (defining ‘‘accused'' as ‘‘[t]he generic term for the defendant or defendants in a criminal case'').[3] The legislature has, on other occasions, used the term in its broader sense by prescribing postconviction rights and procedures for an ‘‘accused''; see, e.g., General Statutes §§ 54-96 and 54-151; including in the context of posting of bond to secure release pending appeal. See, e.g., General Statutes § 53-305. This court likewise has used the term in accordance with its broader meaning. See, e.g., Consiglio v. Warden, 153 Conn. 673, 676, 220 A.2d 269 (1966) (referring to right of ‘‘counsel for the accused'' to point out facts and circumstances bearing on ‘‘the extent of the punishment to be imposed'' at sentencing phase); State v. Palko, 122 Conn. 529, 533, 535, 537-38, 191 A. 320 (discussing arguments raised on appeal by ‘‘the accused''), aff'd, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937).

         We are persuaded that this broader meaning was intended in § 54-63g and the corresponding rule of practice. The text and history of the 1967 public act enacting § 54-63g suggest that ‘‘accused'' and like terms were used in the public act simply to distinguish formally charged persons for whom release decisions continued to rest with the court from ‘‘arrested'' persons for whom the newly created bail commission determined appropriate conditions of release.[4] See Public Acts 1967, No. 549 (P.A. 549) (‘‘An Act Concerning Bail Procedures for Arrested Persons''); P.A. 549, § 1 (providing definition for ‘‘ ‘arrested person' '' and ‘‘ ‘bail commissioner, ' '' but not ‘‘accused''); see also State v. McCahill, 261 Conn. 492, 507, 811 A.2d 667 (2002) (providing legislative history of P.A. 549). In State v. McCahill, supra, 510, this court reviewed an order relating to postconviction release under § 54-63g.[5] The official commentary to the rule of practice, which incorporated the statutory language in 2006, sanctions the procedure in that case. See W. Horton & K. Bartschi, Connecticut Practice Series: Connecticut Rules of Appellate Procedure (2009 Ed.) § 78a-1, p. 291. Finally, we observe that application of the more narrow meaning of ‘‘accused'' either would result in disparate rights of review as between a defendant and the state, as no limiting language applies to the state, or, if deemed to similarly limit rights, would deprive the state of a mechanism to challenge a trial court's postconviction order releasing a defendant. By according ‘‘accused'' its more generic meaning, we avoid both untenable results. Therefore, the defendant properly sought review under § 54-63g and Practice Book § 78a-1.

         The second potential jurisdictional hurdle arises from the fact that the trial court imposed sentence on the defendant while the present petition was pending before this court and the requested supplemental briefs had not yet been filed. Such an intervening act generally would render the petition moot, as we no longer can afford the defendant practical relief on the constitutional claim that he has advanced. See State v. McElveen, 261 Conn. 198, 204-205, 802 A.2d 74 (2002) (explaining necessity of practical relief to avoid mootness). Nonetheless, we are persuaded that the petition falls within the ‘‘ ‘capable of repetition, yet evading review' '' exception to the mootness doctrine; see Loisel v. Rowe, 233 Conn. 370, 382-83, 660 A.2d 323 (1995); that permits us to retain jurisdiction. Cf. State v. Wassillie, 606 P.2d 1279, 1280 (Alaska 1980) (applying same exception under similar circumstances); Kraft v. State, 156 So.3d 1116, 1117 (Fla. App. 2015) (same); Saunders v. Hornecker, 344 P.3d 771, 775 (Wyo. 2015) (applying same exception to different constitutional challenge to bail order).

         The purported denial of the constitutional right to bail pending sentencing for persons convicted of certain violent offenses satisfies each of the three conditions required to invoke this exception. See Loisel v. Rowe, supra, 233 Conn. 382 (prescribing three conditions). Given the specific class of offenders to which such a purported right could apply and the infringement of liberty should such a right be denied, it is self-evident that the second and third conditions have been met. See id. (‘‘Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect . . . a reasonably identifiable group for whom [the defendant] can be said to act as surrogate. Third, the question must have some public importance.''). The state does not contend otherwise.

         Insofar as the state argues that the first condition of this exception has not been met-that ‘‘the challenged action, or the effect of the challenged action, by its very nature [is] of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded''; id.;-we disagree. By the state's own calculations, the current average period between conviction and sentencing is two to three months. Up to twenty days of this period may lapse between the trial court's order and the state's filing of an opposition to a petition for review; see Practice Book §§ 66-6 and 78a-1; leaving approximately forty to seventy days before sentencing typically would render the petition moot. Cf. Goodson v. State, 228 Conn. 106, 116, 635 A.2d 285 (1993) (‘‘collective bargaining agreements, generally having a two to three year lifespan, are likely to expire before a midterm dispute can be fully litigated'').

         The state contends, however, that if we conclude that review of postconviction orders is available under the statute and rule of practice previously discussed, then the expedited review available under those provisions will avoid mootness in most cases. See General Statutes § 54-63g (‘‘[a]ny such petition shall have precedence over any other matter before said Appellate Court and any hearing shall be heard expeditiously''); Practice Book § 78a-1 (imposing similar requirements). Again, we disagree.

         Although we have indicated that availability of expedited review can be ‘‘a significant factor'' in assessing whether an issue is so time limited as to render most such cases raising that issue moot before they can be resolved; In re Emma F., 315 Conn. 414, 427, 107 A.3d 947 (2015); we have not held that such a procedure would be per se dispositive. See id. (concluding that expedited review was significant factor when trial court's order contained no durational constraint and action mooting appeal arose solely because trial court took unusual action of vacating order being challenged). Expedited review undoubtedly would prevent typical bail decisions from being rendered moot. However, there is a strong likelihood that a petition raising the more complex and far-reaching constitutional issue that is presently before us would not be resolved to its ultimate conclusion before sentence is imposed in its ordinary course. Cf. State v. McCahill, supra, 261 Conn. 493, 497-98 (appeal of trial court's August 9, 2001 bail decision, transferred from Appellate Court to Supreme Court to be considered with victim's writ of error, decided on August 20, 2002); State v. Ayala, 222 Conn. 331, 332, 336-37, 610 A.2d 1162 (1992) (trial court's June 20, 1991 bail revocation decision denied by Appellate Court on September 5, 1991, and reversed by this court on June 9, 1992); State v. Shelton, 166 Conn. 677, 319 A.2d 110 (1974) (trial court's March 18, 1974 order dismissed on April 24, 1974); State v. Dellacamera, 110 Conn.App. 653, 656-57, 955 A.2d 613 (2008) (resolution of trial court's July 12, 2007 ruling on October 24, 2007). As one federal court noted, ‘‘[b]ecause of the short period between conviction and sentencing, most of the postconviction cases on bail have arisen under the statutory section dealing with detention on appeal . . . .''[6]United States v. Strong, 775 F.2d 504, 508 (3d Cir. 1985). Therefore, we have jurisdiction to consider the merits of the petition for review.


         The defendant contends that the constitutional right to bail under article first, § 8, of the Connecticut constitution extends beyond a determination of guilt to sentencing. He advances alternative arguments based on the 1965 amendment to article first, which excised the phrase ‘‘before conviction'' from the provision for the right to bail that had existed since 1818. See Conn. Const. (1818), art. 1, § 9. His principal argument, relying on the conventional meaning of conviction, is that the constitution of 1965 expanded the right to bail to include the postverdict, presentence period. His fallback position, relying on an ...

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