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State v. Anderson

Court of Appeals of Connecticut

January 29, 2019


          Argued October 24, 2018

         Procedural History

         Substitute information charging the defendant with the crime of assault in the second degree and with four counts of the crime of reckless endangerment in the second degree, brought to the Superior Court in the judicial district of Middlesex and tried to the court, Vitale, J.; judgment of guilty, from which the defendant appealed to this court, which affirmed the judgment of the trial court; thereafter, the Supreme Court denied the defendant's petition for certification to appeal; subsequently, the court, Vitale, J., denied in part and dismissed in part the defendant's motion to correct an illegal sentence, and the defendant appealed to this court; thereafter, the court, Vitale, J., dismissed the defendant's motion to revise or correct the judgment mittimus, and the defendant filed an amended appeal. Affirmed.

          Monte P. Radler, public defender, for the appellant (defendant).

          Nancy L. Walker, assistant state's attorney, with whom, on the brief, were Peter A. McShane, former state's attorney, and Jeffrey Doskos, senior assistant state's attorney, for the appellee (state).

          Sheldon, Prescott and Pellegrino, Js.


          SHELDON, J.

         The defendant, Francis Anderson, appeals following the trial court's denial in part and dismissal in part of his motion to correct an illegal sentence, and from the dismissal of his related motion for a new mittimus to implement the court's order on the date it imposed the challenged sentence that he receive all pretrial jail credits to which he is legally entitled toward that sentence. The sentence at issue is a term of incarceration, which the court ordered that the defendant serve consecutively to an unexpired term of incarceration that he was serving at the time of the offenses at issue at the Whiting Forensic Division of Connecticut Valley Hospital (Whiting), to which he had been committed to receive psychiatric care and treatment following his acquittal by reason of mental disease or defect of a third set of unrelated charges. The defendant does not challenge the length of his consecutive sentence. Instead, he claims that that sentence was imposed on him in an illegal manner because the court, after pronouncing that sentence, ordered that he be transferred at once to a state correctional facility to complete his earlier sentence and receive such further psychiatric care and treatment, as necessary, rather than returned to Whiting for those purposes. Claiming that the court had no jurisdiction to enter any order with respect to his earlier sentence, which allegedly would have been completed in a hospital setting rather than a prison had the court not ordered his immediate imprisonment after sentencing, the defendant seeks to correct the court's alleged error by crediting all time that he improperly spent in prison completing his earlier sentence as presentence jail credit toward his consecutive sentence, thereby advancing his release date on that sentence by approximately eleven months. The trial court disagreed, denying that portion of the defendant's motion to correct, in which he made the foregoing argument, and dismissing his parallel claim that the pretrial jail time credit to which he allegedly was entitled had not properly been credited toward his sentence. On this appeal, we affirm all aspects of the trial court's challenged rulings.

         The following procedural history is relevant to the defendant's claims on appeal. ‘‘On January 10, 2008, the [defendant] entered guilty pleas, pursuant to the Alford doctrine, [1] to three counts of burglary . . . and one count of larceny . . . and admitted a violation of probation. The state entered a nolle prosequi as to the remaining charges. On March 6, 2008, the trial court sentenced the [defendant] to a total effective sentence of five years imprisonment and three years of special parole. The [defendant] did not file a direct appeal.'' (Footnote in original; internal quotation marks omitted.) Anderson v. Commissioner of Correction, 308 Conn. 456, 458, 64 A.3d 325 (2013). On May 6, 2011, the defendant received a consecutive sentence of five years imprisonment on additional charges. The release date for that sentence, to which we have referred as ‘‘the 2008 sentence, '' was calculated by the Department of Correction (department) to be August 5, 2017. ‘‘Following an incident that occurred on or about July 6, 2012, the defendant was charged with assault of a correction officer, breach of the peace and failure to submit to fingerprinting. . . . The defendant subsequently was found not guilty of these charges by reason of mental disease or defect.[2] On August 15, 2013, the trial court, McMahon, J., committed the defendant to the custody of the Commissioner of Mental Health and Addiction Services. The defendant was transferred to . . . Whiting . . . where he received a psychiatric evaluation pursuant to General Statutes § 17a-582.[3] The October 23, 2013 report resulting from that evaluation recommended that the defendant be returned to prison. On November 18, 2013, Judge McMahon disagreed with the hospital's recommendation and, consistent with the contrary recommendation of an independent evaluator sought by the defendant pursuant to § 17a-582 (c), [4]ordered that the defendant be committed to the custody of the Psychiatric Security Review Board (board) and confined at the hospital for a period not exceeding ten years.[5] On February 7, 2014, the board held the defendant's initial commitment hearing, after which it concluded that he had a psychiatric illness that required care, custody and treatment. It concluded further that he had a psychiatric disability to the extent that his discharge would constitute a danger to himself or others, and that he required confinement in a maximum security setting. Accordingly, the board ordered that the defendant remain confined at the hospital under maximum security conditions.[6]

         ‘‘Upon arriving at the hospital, the defendant allegedly commenced a pattern of assaulting other patients and hospital staff. As a result of his conduct on various dates from October, 2013, through February, 2014, he was charged with several misdemeanors.[7] Thereafter, in April, 2014, he was charged with, inter alia, two counts of assault of health care personnel, a class C felony. See General Statutes § 53a-167c. In connection with all but one of these charges, the defendant was released on a promise to appear and ordered returned to Whiting.[8] Also, in April, 2014, the state filed a motion for bond review, in which it requested that the trial court modify the defendant's existing conditions of release and impose an appropriate monetary bond. The defendant filed an opposition to the state's motion and an accompanying memorandum of law, arguing therein that the court lacked the authority to impose a monetary bond under the circumstances of this case. The parties attached exhibits to these filings, including the hospital's October 23, 2013 report concerning its psychiatric evaluation of the defendant, several reports from the defendant's independent psychiatric evaluator, the transcript of the commitment hearing before the board and the board's report recommending that the defendant be confined in a maximum security setting.

         ‘‘On June 18, 2014, the trial court, Gold, J. . . . concluded that, although the defendant was a confined insanity acquittee, the court retained the authority, conferred by General Statutes § 54-64a . . . and Practice Book § 38-4 . . . to set a monetary bond upon his commission of new offenses in the hospital setting, particularly for the purpose of ensuring the safety of other persons. The court then scheduled an evidentiary hearing on the state's motion for bond review to consider whether the defendant's existing conditions of release should be modified. Before that hearing could occur, however, the defendant was charged with another felony count of assault of health care personnel, as well as three additional misdemeanors. On August 25, 2014, at the defendant's arraignment on those charges, the court set a bond in the amount of $100, 000, cash or surety. Because the defendant was unable to post that bond, he was transferred to the custody of the Commissioner of Correction. . . . See General Statutes § 54-64a (d). The court directed that the mittimus reflect that the defendant required mental health treatment and that he should be housed and monitored in a way to ensure, to the extent possible, the safety of other inmates and correction personnel.'' (Footnote added; footnotes omitted; internal quotation marks omitted.) State v. Anderson, 319 Conn. 288, 292-97, 127 A.3d 100 (2015).[9]

         The defendant appealed to our Supreme Court, claiming ‘‘that the trial court's order setting a monetary bond as a condition of release and, because he was unable to post that bond, his subsequent transfer to the custody of the Commissioner of Correction were in violation of his constitutional rights, namely, his right to bail under the state constitution and his right to procedural due process under the federal constitution.'' Id., 299. The court rejected each of the defendant's claims, and further held ‘‘that the defendant's remedy, if he believes that the mental health treatment he is receiving while in the custody of the Commissioner of Correction is constitutionally inadequate, is through an expedited petition for a writ of habeas corpus challenging the conditions of his confinement.'' Id.

         As a result of the incidents that occurred while he was at Whiting, the defendant was convicted, after a court trial, of one count of assault in the second degree in violation of General Statutes § 53a-60 (a) (3) and four counts of reckless endangerment in the second degree in violation of General Statutes § 53a-64 (a). At the defendant's sentencing hearing, the prosecutor argued that sending the defendant back to Whiting was not a viable option due to his repeated ‘‘violent propensities toward staff, patients and inmates . . . .'' Before articulating the defendant's position at the sentencing hearing, defense counsel called Dr. Madelon V. Baranoski, a forensic psychologist who met with and evaluated the defendant, to testify. Baranoski testified, inter alia, that Whiting was not a suitable placement for the defendant. In his remarks to the court, defense counsel explained the unique circumstances of the defendant: ‘‘He's a convicted criminal defendant awaiting sentencing . . . . He's [an] involuntarily committed insanity acquittee under the [jurisdiction of the board]. He's a sentenced prisoner with [a] concurrently running unexpired sentence and also a pretrial detainee under multiple docket numbers under which he remains incarcerated pursuant to a bond he was unable to post.'' Defense counsel argued that it was inappropriate to punish an insanity acquittee by incarceration, but acknowledged that ‘‘the only practical options [for the defendant] are available through the correction system . . . .'' He explained that ‘‘he can't go back to Whiting untreated, and he shouldn't go back to Whiting, according to Dr. Baranoski, at all . . . .''

         The court posited: ‘‘The question now is the nature of an appropriate sentence and more practically where the sentence will be served once it is imposed under the unique circumstances presented, and to ensure that [the defendant] receives the opportunity for appropriate treatment.'' The court then explained: ‘‘The . . . circumstances [of this case] are unique in that the defendant is presently now serving the aforementioned ten year sentence while also simultaneously an insanity acquittee, again, to speak colloquially, on different charges, and is now facing sentencing on subsequent crimes he committed at Whiting for which this court has found him criminally responsible. Thus, the defendant's sentencing presents the preliminary questions of whether and how the defendant can be moved to the [department's] jurisdiction for . . . these subsequent criminal offenses when he's still under technically the jurisdiction of the board although simultaneously also serving a criminal sentence in a different matter.''

         The court further explained: ‘‘The court has considered the sentencing goals as well as all the information before it, including balancing the defendant's rights to mental health treatment if needed with that of the rights of the victims under . . ...

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