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State v. Davis

Court of Appeals of Connecticut

December 4, 2018

STATE OF CONNECTICUT
v.
FREDERICK M. DAVIS

          Argued October 17, 2018

         Procedural History

         Information charging the defendant with violation of probation, brought to the Superior Court in the judicial district of Stamford-Norwalk, geographical area number twenty, and transferred to the judicial district of Fairfield, geographical area number two, where the matter was triedtothe court, Holden, J.; thereafter the court denied the defendant's motion to dismiss; judgment revoking the defendant's probation, from which the defendant appealed to this court. Affirmed.

          Robert J. McKay, assigned counsel, for the appellant (defendant).

          Brett R. Aiello, special deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Richard Palombo, senior assistant state's attorney, for the appellee (state).

          Sheldon, Elgo and Beach, Js.

          OPINION

          ELGO, J.

         The defendant, Frederick M. Davis, appeals from the judgment of the trial court revoking his probation and committing him to the custody of the Commissioner of Correction for nine years. On appeal, the defendant claims that the court (1) improperly denied his motion to dismiss predicated on an alleged lack of jurisdiction, (2) violated his constitutional right to be present at a critical stage of the probation revocation proceeding, and (3) improperly denied his request for a continuance. We affirm the judgment of the trial court.

         On May 26, 2016, the defendant pleaded guilty to possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a). The court sentenced the defendant to a term of twelve years incarceration, execution suspended, with five years of probation. The conditions of his probation required, inter alia, that the defendant ‘‘not violate any criminal law of the United States, this state or any other state or territory, '' that he submit to random urinalysis, and that he obtain substance abuse and mental health treatment.

         Following the commencement of his probationary period, the defendant was referred to Connecticut Renaissance by his probation officer, Matthew A. Maiorano, for a substance abuse and mental health evaluation. When the defendant repeatedly failed to report for scheduled appointments, he was discharged from that treatment center. Maiorano also performed a urinalysis on the defendant in August, 2016, which tested positive for cocaine and marijuana. In addition, the defendant was arrested on August 15, 2016, and charged with multiple drug related felonies, including possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and sale of narcotics in violation of § 21a-277 (a).[1]

         In response, Maiorano filed an arrest warrant application for the defendant's violation of the terms of his probation. In an accompanying affidavit, Maiorano alleged that the defendant's ‘‘continued negative behaviors, polysubstance abuse and continued narcotics trafficking indicate that the beneficial purposes for which [he] was initially placed on [p]robation . . . are no longer being served.'' The state then filed an information alleging that the defendant had breached the terms of his probation in violation of General Statutes § 53a-32.

         On January 17, 2017, a hearing was held before the Norwalk Superior Court. When the matter was called, Attorney M. Elizabeth Reid from the Office of the Public Defender first indicated that she represented the defendant. After a brief colloquy with the court, she then stated: ‘‘Judge, as much as I'd love to represent [the defendant] here, this matter is actually going to be trans-ferred to [geographical area number two] in Bridgeport for February [14, 2017].'' The court at that time transferred the matter to the Bridgeport Superior Court.

         On April 19, 2017, the defendant filed a motion to dismiss the violation of probation action for lack of jurisdiction ‘‘over the defendant or the subject matter.'' In that motion, the defendant claimed that the court improperly transferred the matter from the Norwalk Superior Court to the Bridgeport Superior Court, in contravention of Practice Book § 41-23.[2] He filed a supplement to that motion a week later, in which he argued that a probation revocation proceeding is a criminal matter. The court heard argument from the parties on that motion, in which the defendant's new public defender in Bridgeport maintained that the Bridgeport Superior Court lacked jurisdiction over the probation revocation proceeding due to the allegedly improper transfer. The court thereafter denied the motion to dismiss.

         The defendant rejected a plea offer from the state and a hearing on the violation of probation charge commenced on April 27, 2017. At that hearing, Maiorano testified as to the defendant's noncompliance with the terms of his probation. In addition, the state presented the testimony of three members of the Bridgeport Police Department who were involved in the August 15, 2016 arrest of the defendant; see footnote 1 of this opinion; which testimony the court expressly credited. When the adjudicatory phase of that proceeding concluded, the court found, by a fair preponderance of the evidence, that the defendant had violated the terms of his probation in multiple respects.[3]

         Defense counsel then requested a continuance of the dispositional phase of the probation revocation proceeding until all pending criminal matters were resolved ‘‘due to [the defendant's] right of allocution'' as codified in Practice Book § 43-10. After hearing initial arguments from the parties on that request, the court continued the matter approximately two weeks. When the parties again appeared before the court on May 12, 2017, the court heard further arguments on the defendant's continuance request, which it then denied. At the conclusion of the dispositional phase of the proceeding, the court found that the beneficial aspects of ...


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