State v. Fletcher

          Argued March 12, 2018

         Procedural History

         Substitute 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. Affirmed.

          Laila M. G. Haswell, senior assistant public defender, for the appellant (defendant).

          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.

          OPINION

          KELLER, J.

         The 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.

         The 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 (2001).

         The defendant's probationary period commenced when he was released from incarceration on November 17, 2011.^[1] Among the court-ordered special conditions of the defendant's probation^[2] was that he submit to drug screening, evaluation, and treatment and that he obtain full-time verifiable employment.

         In 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.^[3]

         On June 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.^[4] 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.

         On 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.

         I

         First, 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).

         The 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.

         ‘‘[T]he 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).

         The 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.)

         Essentially, 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 on probation.

         With 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.^[5] 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.)

         In 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 review.'' Id.

         In 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., 370-71.

         In 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, supra, 383.

         Finally, 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.

         We 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 921 (1997).

         A 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'').

         In the 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.

         If the 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 ...