Argued
January 24, 2019
Procedural
History
Substitute
information charging the defendant with the crime of
possession of narcotics and with two counts of violation of
probation, brought to the Superior Court in the judicial
district of New London, geographical area number twenty-one,
where the defendant was presented to the court, Clifford,
J., on a plea of guilty to the charge of possession of
narcotics and on an admission of violation of probation;
judgment of guilty in accordance with the plea and finding
the defendant in violation of probation; thereafter, the
court, Newson, J., granted the defendant's
petition for the destruction of certain records relating to
the conviction of possession of narcotics and denied the
defendant's petition for the destruction of certain
records relating to the finding of violation of probation,
and the defendant appealed. Affirmed.
Laila
M. G. Haswell, senior assistant public defender, for the
appellant (defendant).
Denise
B. Smoker, senior assistant state's attorney, with whom,
on the brief, were Michael L. Regan, state's attorney,
and Stacey M. Miranda, senior assistant state's attorney,
for the appellee (state).
Robinson, C. J., and Palmer, McDonald, D'Auria, Mullins,
Kahn and Ecker, Js.
OPINION
D'AURIA, J.
In
2011, our General Assembly changed the penalty for possessing
less than one-half ounce of marijuana from a potential term
of imprisonment and/ or a large fine to merely a fine. See
Public Acts 2011, No. 11-71 (P.A. 11-71), codified at General
Statutes § 21a-279a.[1] Subsequently, in State v.
Menditto, 315 Conn. 861, 863, 110 A.3d 410 (2015),
this court held that P.A. 11-71
‘‘decriminalized'' the possession of less
than one-half ounce of marijuana for purposes of this
state's erasure statute, General Statutes §
54-142d.[2] In the present case, the defendant asks us
to hold that § 54-142d also compels the erasure of a
finding of a violation of probation that he claims was
premised on the now decriminalized offense of possession of
less than one-half ounce of marijuana. The trial court
rejected the defendant's argument, and we affirm the
trial court's decision.
The
record reveals the following undisputed facts and procedural
history, which are relevant to the resolution of this appeal.
In 2007, the defendant pleaded guilty under the
Alford doctrine[3] to possession of narcotics in violation
of General Statutes (Rev. to 2005) § 21a-279 (a). The
trial court sentenced him to thirty months of imprisonment,
execution suspended, and two years of probation. The terms of
probation included that the defendant ‘‘not
violate any criminal law of the United States, this state or
any other state or territory.'' The court also
ordered special conditions of probation, including substance
abuse evaluation and twenty hours of community service.
In
July, 2008, the defendant was arrested again, this time on a
charge of selling narcotics. Pursuant to a September, 2009
plea agreement, he admitted to violating his probation, and
the court extended his probation for another year. The court
accepted a nolle prosequi from the state on the underlying
narcotics charge.
With
approximately eight days remaining on the defendant's
extended probation, in July, 2010, the police found him in
possession of less than one-half ounce of marijuana.
Subsequently, an arrest warrant issued for the defendant,
alleging that he had engaged in the sale of a controlled
substance in violation of the conditions of his probation
prohibiting the violation of any criminal law of the United
States, this state or any other state. The arrest warrant
also alleged that the defendant failed to provide
verification that he had completed the twenty hours of
community service. He was arrested and charged with
possession and sale of a controlled substance, and with
violating his probation. In July, 2012, he pleaded guilty
under the Alford doctrine to the misdemeanor charge
of possession of less than four ounces of marijuana in
violation of General Statutes (Rev. to 2009) § 21a-279
(c).[4]
Also during the plea proceedings, the defendant admitted to
the probation violation. The prosecutor stated on the record
that the violation of probation charge was premised on both
the defendant's arrest on the charge of sale of a
controlled substance, as well as on the charge of possession
of marijuana.[5] The defendant was sentenced to one year of
incarceration, execution suspended, and one year of
probation, and was required to make a charitable contribution
of $250.[6]
In
2011, the legislature enacted P.A. 11-71, which changed the
penalty for possessing less than one-half of an ounce of
marijuana from a potential term of imprisonment and/or a fine
to merely a fine of $150 for a first offense and a fine of
between $200 and $500 for subsequent offenses. See General
Statutes § 21a-279a (a).[7] In a decision officially released
on March 24, 2015, this court held in State v.
Menditto, supra, 315 Conn. 871, that P.A.
11-71 had the effect of
‘‘decriminalizing'' the possession of
less than one-half of an ounce of marijuana, thus permitting
a defendant to take advantage of the state's erasure
statute, § 54-142d. As a result, an individual convicted
of possessing less than one-half of an ounce of marijuana may
petition the court to have the records
‘‘pertaining to such case'' erased under
§ 54142d. See State v. Menditto,
supra, 876.
In
September, 2015, in response both to the enactment of P.A.
11-71 and this court's 2015 decision in
Menditto, the defendant in the present case filed a
petition seeking erasure of the records related to his 2012
marijuana conviction. Because the defendant's July, 2012
conviction, which was based on his July, 2010 arrest, was for
less than one-half of an ounce of marijuana, the trial court
granted the defendant's motion.
In
April, 2016, the defendant filed another petition, this time
seeking erasure of the 2012 finding that he had violated his
probation. The defendant argued that, because his 2012
marijuana conviction had been erased from his record, no
conviction any longer supported the violation of probation
finding. The trial court denied the defendant's motion,
reasoning that ‘‘you don't need any
conviction to violate your probation. . . . [It] is a
standard condition of probation that you not violate any ...