October 11, 2017
M. G. Haswell, senior assistant public defender, for the
J. Scheinblum, senior assistant state's attorney, with
whom, on the brief, were John C. Smriga, state's
attorney, and C. Robert Satti, Jr., supervisory assistant
state's attorney, for the appellee (state).
DiPentima, C. J., and Sheldon and Mihalakos, Js.
DiPENTIMA, C. J.
defendant, Jacqui Smith, appeals from the judgment of the
trial court revoking his probation and sentencing him to five
years incarceration. The defendant claims that (1) the court
improperly denied his motion to dismiss the probation
violation charge on the basis that the hearing did not occur
within 120 days of his arraignment in violation of General
Statutes § 53a-32 (c) and (2) the evidence was
insufficient to prove that he had operated a motor vehicle
while his driver's license was under suspension in
violation of General Statutes § 14-215 (a) and,
therefore, he is entitled to a new sentencing hearing. The
state counters that, pursuant to State v.
Kelley, 164 Conn.App. 232, 137 A.3d 822 (2016),
aff'd, 326 Conn. 731, 167 A.3d 961 (2017), the 120 day
time frame of § 53a-32 (c) is directory and,
additionally, that the court properly found good cause for
the delay. The state concedes, however, that there was
insufficient evidence for the court to conclude that the
defendant had violated § 14-215 (a), and, therefore,
under these facts and circumstances, the defendant is
entitled to a new sentencing hearing. We conclude that the
court properly determined that the 120 day time period of
§ 53a-32 (c) is a nonmandatory
‘‘guideline.'' Further, we agree that a
new sentencing hearing is required. Accordingly, we affirm in
part and reverse in part the judgment of the trial court.
following facts and procedural history are necessary for our
discussion. The defendant was convicted of drug related
offenses in January, 2013, and sentenced to ten years
incarceration, execution suspended after three years, and
three years of probation. He was released from custody on
April 1, 2015, and first reported to his probation officer on
April 9, 2015. During this meeting, the probation officer
reviewed the conditions of probation with the defendant.
standard conditions of probation provided, inter alia, that
the defendant was not to violate any criminal law of the
United States or the state of Connecticut, that he was to
report as instructed to the probation officer and that he was
to inform the probation officer if he was arrested. The
specific conditions of probation required the defendant to
complete a mental health evaluation, to complete a substance
abuse evaluation and treatment, if necessary, to obtain
full-time employment and/or educational/vocational training,
to attend one ‘‘Project Safe Neighborhood
Meeting'' within the first three months of probation
and not to possess drugs, narcotics or weapons. The defendant
signed a form listing the conditions of his probation.
15, 2015, the state charged the defendant with violating his
probation. See General Statutes § 53a-32 (a). It alleged
that on May 25, 2015, Bridgeport police officers observed the
defendant driving a motor vehicle and noticed that the
occupants were not wearing seat-belts. After a brief
investigation, the officers issued the defendant a
misdemeanor summons for operating a motor vehicle while his
driver's license was under suspension in violation of
§ 14-215 (a) and without minimum insurance in violation
of General Statutes § 14-213b. The state also claimed
that the defendant had missed four appointments for an
integrated mental health and substance abuse assessment. The
defendant was arraigned on the violation of probation charge
on June 30, 2015.
December 16, 2015, the defendant moved to dismiss the
probation violation charge pursuant to § 53a-32 (c).
Specifically, the defendant argued that he had
‘‘been held on this charge for more than 120 days
in violation of said statute.'' On December 21, 2015,
the court, Devlin, J., held a hearing on the
defendant's motion. After hearing from the parties, the
court ruled as follows: ‘‘[A]s I read this
statute, it is advisory. This is a statute which advises the
court of the legislature's concern. . . . [T]he statute
does not provide that the remedy for not having someone
adjudicated on their violation of probation case is a
dismissal of the charge. It doesn't provide for that. . .
. So, I'm going to deny this motion to dismiss.''
next day, the court, Kavanewsky, J., conducted a
hearing on the probation violation charge. At the conclusion
of the adjudicatory phase,  the court found the following
facts. ‘‘The state has established that the
defendant violated the terms and conditions of his probation
in several different respects, including reporting as the
probation officer directed him to, keep the probation officer
advised of his general whereabouts, also more specific
conditions relating to the defendant obtaining mental health,
regarding substance abuse and regarding attendance at, at
least one project safe neighborhood meeting.'' It
further found that the defendant had been advised of these
conditions in April, 2015, but essentially
‘‘dropped off the radar'' in May, 2015.
court also expressly found, on the basis of the testimony of
two police officers, that the defendant had operated a motor
vehicle in violation of § 14-215 (a) on May 25, 2015.
Accordingly, the court found, by a preponderance of the
evidence,  that the defendant wilfully had violated
the terms and conditions of his probation.
the dispositional phase, the court determined that the
beneficial aspects and purposes of probation were no longer
being served. The court then stated: ‘‘[The
defendant] was previously sentenced to ten years, suspended
after three years, with three years' probation. The
judgment previously entered is reopened. The sentence is
vacated and the defendant is sentenced . . . to a period of
five years to serve . . . .'' This appeal followed.
October 4, 2016, the trial court issued a memorandum of
decision further explaining the oral decision denying the
defendant's motion to dismiss. It concluded that our
decision in State v.Kelley,
supra, 164 Conn.App. 232, was dispositive.
Specifically, the court noted that in Kelley, which
had been released after the hearing and oral decision on the
defendant's motion to dismiss, we concluded that the 120
day limitation of § 53a-32 (c) is a