March 12, 2018
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, B.
Fischer, J.; judgment revoking the defendant's
probation, from which the defendant appealed to this court.
M. G. Haswell, senior assistant public defender, for the
Jennifer W. Cooper, special deputy assistant state's
attorney, with whom, on the brief, were Patrick J. Griffin,
state's attorney, and Karen A. Roberg, assistant
state's attorney, for the appellee (state).
Lavine, Alvord, and Keller, Js.
defendant, Darryl Fletcher, appeals from the judgment of the
trial court revoking his probation pursuant to General
Statutes § 53a-32 and sentencing him to a term of
incarceration of eighteen months. The defendant claims that
he is entitled to a new sentencing hearing because the court
improperly relied on a fact that was not part of the record.
We affirm the judgment of the trial court.
following undisputed facts and procedural history are
relevant to our analysis. In 1999, the defendant was
convicted of possession of narcotics with intent to sell by a
person who is not drug-dependent in violation of General
Statutes § 21a-278 (b), possession of narcotics with
intent to sell within 1500 feet of a public school in
violation of General Statutes § 21a-278a (b), possession
of marijuana in violation of General Statutes § 21a-279
(c), and three counts of criminal possession of a pistol or
revolver in violation of General Statutes § 53a-217c.
The defendant received a total effective sentence of twenty
years, execution suspended after thirteen years, followed by
five years of probation. This court affirmed the judgment of
conviction. State v. Fletcher, 63 Conn.App.
476, 777 A.2d 691, cert. denied, 257 Conn. 902, 776 A.2d 1152
defendant's probationary period commenced when he was
released from incarceration on November 17,
2011. Among the court-ordered special conditions
of the defendant's probation was that he submit to drug
screening, evaluation, and treatment and that he obtain
full-time verifiable employment.
2015, the defendant was arrested and charged with violating
his probation in violation of General Statutes § 53a-32.
The defendant denied the charge. The matter was tried before
the court on May 2, 2016. At the conclusion of the
adjudicatory phase of the hearing, the court found that the
state had proven that the defendant had violated several of
the conditions of his probation. Specifically, the court
found that the defendant did not verify his employment with
his probation officers, failed to complete a domestic
violence treatment program, failed to submit to a drug
treatment program, and tested positive for marijuana and
cocaine use. At the conclusion of the dispositional phase of
the hearing, the court terminated the defendant's
probationary status and sentenced him to serve a term of
incarceration of eighteen months.
28, 2016, the defendant filed the present appeal. The
defendant does not claim that the court erroneously
determined, in the adjudicative phase of the hearing, that he
violated his probation. The defendant claims that, in the
dispositional phase of the hearing, the court improperly
inferred from the evidence that, for nearly a year, he eluded
service of the warrant charging him with violating his
probation. Moreover, the defendant argues that, in
imposing its sentence, the court ‘‘substantially
relied upon its faulty determination that the defendant was
avoiding being arrested . . . .'' The remedy that he
seeks from this court is a new sentencing hearing.
August 31, 2017, after the defendant filed his principal
brief, the state filed a motion to dismiss the appeal on the
ground that it became moot when the defendant was released
from the custody of the Department of Correction (department)
on August 22, 2017. The state argued that this court could no
longer afford the defendant, who was challenging only the
manner in which the court imposed its sentence and not the
finding that he had violated his probation, any practical
relief. In his objection to the motion to dismiss, the
defendant acknowledged that he had been released from custody
on August 22, 2017, but argued that exceptions to the
mootness doctrine applied and that this court should not
dismiss the appeal. This court denied the state's motion
without prejudice to the state, and permitted the state to
address the mootness issue in its brief and the defendant to
address the issue in his reply brief. They have done so.
Additional facts will be set forth as necessary.
we address the state's argument that the appeal is moot
because the defendant has completed his sentence.
‘‘Mootness is a question of justiciability that
must be determined as a threshold matter because it
implicates [a] court's subject matter jurisdiction . . .
. It is well settled that [a]n issue is moot when the court
can no longer grant any practical relief.'' (Citation
omitted; internal quotation marks omitted.) Middlebury
v. Connecticut Siting Council, 326 Conn. 40,
53-54, 161 A.3d 537 (2017). ‘‘Under such
circumstances, the court would merely be rendering an
advisory opinion, instead of adjudicating an actual,
justiciable controversy.'' State v.
Jerzy G., 326 Conn. 206, 213, 162 A.3d 692 (2017).
‘‘Because courts are established to resolve
actual controversies, before a claimed controversy is
entitled to a resolution on the merits it must be
justiciable. . . . Justiciability requires (1) that there be
an actual controversy between or among the parties to the
dispute . . . (2) that the interests of the parties be
adverse . . . (3) that the matter in controversy be capable
of being adjudicated by judicial power . . . and (4) that the
determination of the controversy will result in practical
relief to the complainant.'' Glastonbury v.
Metropolitan District Commission, 328 Conn. 326,
333, 179 A.3d 201 (2018). ‘‘[A]n actual
controversy must exist not only at the time the appeal is
taken, but also throughout the pendency of the appeal. . . .
When, during the pendency of an appeal, events have occurred
that preclude an appellate court from granting any practical
relief through its disposition of the merits, a case has
become moot.'' (Internal quotation marks omitted.)
State v. McElveen, 261 Conn. 198, 205, 802
A.2d 74 (2002). ‘‘If there is no longer an actual
controversy in which [this court] can afford practical relief
to the parties, we must dismiss the appeal. . . . In
determining mootness, the dispositive question is whether a
successful appeal would benefit the plaintiff or defendant in
any way.'' (Citation omitted; internal quotation
marks omitted.) Medeiros v. Medeiros, 175
Conn.App. 174, 196, 167 A.3d 967 (2017).
parties do not dispute that because the defendant has
completed his sentence, this court no longer has the ability
to reduce the number of days he must remain incarcerated. On
this ground, the state argues that this court may not grant
any practical relief and that the appeal should be dismissed.
In reply, the defendant argues that this appeal falls within
two well settled exceptions to the mootness doctrine, namely,
the collateral consequences exception as well as the
exception for appeals involving issues that are capable of
repetition yet evade review.
court may retain jurisdiction when a litigant shows that
there is a reasonable possibility that prejudicial collateral
consequences will occur. . . . [T]o invoke successfully the
collateral consequences doctrine, the litigant must show that
there is a reasonable possibility that prejudicial collateral
consequences will occur. Accordingly, the litigant must
establish these consequences by more than mere conjecture,
but need not demonstrate that these consequences are more
probable than not. This standard provides the necessary
limitations on justiciability underlying the mootness
doctrine itself. Where there is no direct practical relief
available from the reversal of the judgment . . . the
collateral consequences doctrine acts as a surrogate, calling
for a determination whether a decision in the case can afford
the litigant some practical relief in the future.''
(Internal quotation marks omitted.) State v.
Reddy, 135 Conn.App. 65, 69-70, 42 A.3d 406 (2012);
see also Williams v. Ragaglia, 261 Conn.
219, 226, 802 A.2d 778 (2002) (litigant bears burden of
demonstrating reasonable possibility that prejudicial
consequences will occur); State v.
McElveen, supra, 261 Conn. 205 (same).
defendant argues: ‘‘The record of jail in his
criminal history will stigmatize him in the community for the
rest of his life and hinder his efforts to obtain meaningful
employment. And if he is ever charged with another crime,
judges and prosecutors will factor in the defendant's
incarceration when determining a sentence.'' Also,
the defendant argues: ‘‘Although our citizens
suffer greatly from the collateral consequences of
convictions, it is simply not the case that all collateral
consequences arise from the conviction alone. Any potential
employer or school admissions office would know from the
defendant's record that he has served time in prison.
They would understand that during that time the defendant was
not learning new skills and was not making connections within
the community that would benefit future employment. Just the
fact that the defendant's transgressions had earned him
the most severe punishment possible in our criminal justice
system, rather than a fine or more probation, will hurt him
because the stigma of incarceration is much heavier than
other, lesser sentences. . . . To suggest otherwise ignores
the very real barriers that former inmates contend with every
day after they are released from jail and return to their
communities.'' (Footnote omitted.)
the defendant's appeal is based on what he claims to be
error in the court's determination to revoke his
probation. ‘‘Our Supreme Court has recognized
that revocation of probation hearings, pursuant to [General
Statutes] § 53a-32, are comprised of two distinct
phases, each with a distinct purpose. . . . In the
evidentiary phase, [a] factual determination by a trial court
as to whether a probationer has violated a condition of
probation must first be made. . . . In the dispositional
phase, [i]f a violation is found, a court must next determine
whether probation should be revoked because the beneficial
aspects of probation are no longer being served.''
(Internal quotation marks omitted.) State v.
Altajir, 123 Conn.App. 674, 680-81, 2 A.3d 1024
(2010), aff'd, 303 Conn. 304, 33 A.3d 193
(2012). The defendant argues that the court's allegedly
erroneous finding in the dispositional phase led it to revoke
his probation and order him to serve a substantial portion of
his unexecuted prison sentence. He argues that, in the
absence of the court's error, it may have imposed a
lesser form of punishment, including permitting him to remain
respect to employment and his standing in the community
generally, the defendant has identified what he believes to
be a reasonable probability of prejudicial collateral
consequences that do not arise from the court's finding
that he violated his probation, but the fact that, in the
dispositional phase of the proceeding, the court revoked his
probation and sentenced him to a term of
incarceration. Also, the defendant argues that there is a
reasonable probability that, if he were to be convicted of a
crime in the future, the court's sentence could result in
his receiving greater punishment by a future sentencing
court. The defendant argues that a future sentencing court
could learn from his criminal record that he had been
sentenced to serve time in prison for violating his probation
and use this information to his detriment. The defendant
argues: ‘‘A jail sentence reveals to future
sentencing courts that the defendant failed to demonstrate
[that a lesser form of punishment was appropriate] . . . and
that the beneficial aspects of [the defendant's]
probation could [not] continue to be served by allowing the
defendant to remain on probation. . . . Such information
signals to the court that the defendant's violations were
serious and that he was wilful, uncooperative, unable to
submit to authority, and averse to being
rehabilitated.'' (Internal quotation marks omitted.)
evaluating the defendant's arguments, we look for
guidance in relevant appellate case law. In State v.
McElveen, supra, 261 Conn. 214-15, our
Supreme Court concluded that, despite the fact that the
sentence imposed upon a defendant following his probation
violation had expired, it was reasonably possible that
collateral consequences flowed from the fact that his
probation had been revoked. The court concluded that his
appeal from the judgment of the trial court revoking his
probation was not rendered moot due to the expiration of his
sentence, and stated: ‘‘We appreciate that there
is something unsettling about looking to future involvement
with the criminal justice system as a predicate for our
determination that a case such as the present one is not
moot. Even under its more narrow application of the
collateral consequences doctrine, however, the United States
Supreme Court has relied upon collateral consequences that
would arise in the event of future criminal behavior to
conclude that an otherwise moot judgment of conviction merits
State v. Preston, 286 Conn. 367, 369, 944
A.2d 276 (2008), a defendant appealed from the judgment
rendered following a probation revocation proceeding and
claimed that the trial court (1) improperly found that he had
violated his probation and (2) abused its discretion in
revoking his probation. Relying on the fact that the
defendant had pleaded guilty to the underlying offenses,
thereby eliminating any live controversy about his conduct,
this court dismissed his first claim as moot. Id.
This court dismissed the second claim as moot for lack of a
live controversy because it determined that the defendant
failed to demonstrate that prejudicial consequences flowed
from the revocation of his probation. Id., 369-70.
Following a grant of certification to appeal, our Supreme
Court reversed the judgment of this court with respect to the
defendant's claim that the trial court had abused its
discretion when it revoked his probation. Id.,
Preston, our Supreme Court determined, initially,
that a circumstance that renders moot a claim arising from
the evidentiary phase of a revocation of probation hearing
does not necessarily render moot a claim arising from the
dispositional phase of the hearing. Id., 380.
Thereafter, the court determined that it was reasonably
possible that the defendant would suffer collateral
consequences as a result of the revocation of his probation.
Id., 382-84. Relying on McElveen and other
relevant authority, the court reasoned that prejudice flowed
from the revocation of probation. Id., 383. The
court, quoting this court's decision in State v.
Johnson, 11 Conn.App. 251, 256, 527 A.2d 250 (1987),
stated: ‘‘ ‘[P]robation revocation is a
blemish on [the defendant's] prison record which will
affect his job opportunities and his standing in the
community because it connotes wrongdoing and intractability
and is a burden analogous and in addition to his criminal
stigma.' ''State v. Preston,
in State v. Natal, 113 Conn.App. 278, 280,
966 A.2d 331 (2009), the defendant appealed from the judgment
of the trial court revoking his probation and committing him
to the custody of the Commissioner of Correction for two
years. He raised a claim related to the adjudicative phase of
the probation revocation hearing and a claim related to the
dispositional phase of the hearing. Id. Despite the
fact that the defendant's sentence expired during the
pendency of the appeal, this court explained that the appeal
was not moot, stating: ‘‘Although the
defendant's two year sentence appears to have expired . .
. the present appeal is not moot due to the collateral
consequences doctrine. In State v.
McElveen, [supra, 261 Conn. 198], our
Supreme Court determined that subject matter jurisdiction
existed over an appeal from the revocation of probation even
though the probationer subsequently completed his term of
incarceration [during the pendency of the appeal]. The court
reasoned that there were collateral consequences that
reasonably could ensue as a result of a probation revocation,
such as a negative impact on a defendant's standing in
the community and the ability to secure employment. . . .
Because there is a reasonable possibility that those
collateral consequences will attach in the present case, the
appeal is not moot.'' Id., 282 n.1.
observe that ‘‘[i]t is a fundamental sentencing
principle that a sentencing judge may appropriately conduct
an inquiry broad in scope, and largely unlimited either as to
the kind of information he may consider or the source from
which it may come. . . . The trial court's discretion,
however, is not completely unfettered. As a matter of due
process, information may be considered as a basis for a
sentence only if it has some minimal indicium of
reliability.'' (Citation omitted; internal quotation
marks omitted.) State v. Huey, 199 Conn.
121, 127, 505 A.2d 1242 (1986). A defendant's criminal
record may shed light on his willingness to conform to
socially acceptable behavior and, thus, is a relevant factor
to consider at the time of sentencing. See General Statutes
§ 54-91a (c) (presentence investigation report shall
include information regarding defendant's criminal
history); State v. Garvin, 43 Conn.App.
142, 152, 682 A.2d 562 1996) (‘‘[f]or the
determination of sentences, justice generally requires
consideration of more than the particular acts for which the
crime was committed and that there be taken into account the
circumstances of the offense together with the character and
propensities of the offender'' [internal quotation
marks omitted]), aff'd, 242 Conn. 296, 699 A.2d
record that reflects that a defendant has violated his
probation and that probation has been revoked sheds light on
his criminal character because, as the defendant argues, such
information reflects that the defendant's violations were
serious enough to warrant a finding that the beneficial
aspects of probation were no longer being served. As our case
law reflects, the court's disposition gave rise to a
reasonable possibility of prejudicial consequences for the
defendant. See, e.g., State v. Smith, 207
Conn. 152, 161, 540 A.2d 679 (1988) (‘‘[i]f the
revocation of the defendant's probation stands, it may
not only have an effect on his ability to obtain probation in
the future but also affect his standing in the community in
its connotation of wrongdoing, job opportunities and is a
blemish on his record'').
present case, the defendant challenges the court's
exercise of discretion in the dispositional phase of the
revocation of probation hearing. See State v.
Faraday, 268 Conn. 174, 185-86, 842 A.2d 567 (2004)
(abuse of discretion standard of review applies to
court's determination in dispositional phase). On the
basis of the foregoing authority, we are persuaded that,
despite the expiration of the defendant's sentence, there
is a reasonable possibility that, in the event that the
defendant were to face a sentencing court in the future, the
court's determination in revoking probation and
sentencing the defendant to a period of incarceration may
subject him to prejudicial collateral consequences.
Additionally, we are persuaded that there is a reasonable
possibility that, despite the expiration of the
defendant's sentence, its presence on the defendant's
criminal record could subject him to prejudicial consequences
affecting not merely his employment opportunities, but his
standing in the community generally.
court made improper findings in the dispositional phase of
the hearing and relied on such findings in sentencing the
defendant, this court has the ability to provide the
defendant practical relief by granting the defendant a new
dispositional hearing that could result in a more favorable
outcome. In light of the prejudicial collateral consequences
we have discussed, we retain jurisdiction over the appeal
despite the fact that the defendant has completed serving his