State v. Baxter, 6999

• Decision Date: 08 August 1989
• Docket Number: No. 6999,6999
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Robert C. BAXTER.

Page 721

563 A.2d 721

19 Conn.App. 304

STATE of Connecticut v. Robert C. BAXTER.

No. 6999.

Appellate Court of Connecticut.

Argued April 12, 1989.

Decided Aug. 8, 1989.

Andrew R. Sherriff, Westport, for appellant (defendant).

Timothy J. Sugrue, Deputy Asst. State's Atty., with whom, on the brief, was Gerard P. Eisenman, Asst. State's Atty., for appellee (State).

Before DUPONT, C.J., EDWARD Y. O'CONNELL and FOTI, JJ.

DUPONT, Chief Judge.

Two issues dominate this appeal from the trial court's judgment revoking the defendant's probation and imposing the sentence previously suspended. The first is whether the federal constitution mandates a remand to the trial court for a new probation revocation hearing because the information charging the defendant with a violation of a condition of his probation was at variance with the affidavit upon which the arrest warrant for a violation was based, and at variance with the evidence produced by the state in support of the violation. The second issue is whether the defendant was entitled to both a preliminary hearing and a final hearing when charged with a violation of a condition of probation. A ubiquitous backdrop to both issues is whether the issues should be reviewed under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

The defendant pleaded guilty to manslaughter in the second degree on November 15, 1985, and was sentenced, pursuant to a plea agreement, to three years in prison, execution suspended after eighteen months, and five years probation. ¹ The terms of probation, signed by the defendant, were that the defendant maintain full-time employment, that he stay away from the victim's parents, and that he abide by all of the standard conditions of probation. ² The parties agree that, based on the record, another condition of probation was that the defendant perform 1000 hours of volunteer work. ³ The conditions of probation enumerated in the document signed by the defendant, however, did not include any mention of community service. After the defendant served the requisite time in prison, he was released and placed on probation. Thereafter, it was arranged that the community service be performed at the Dinan Center. Difficulties arose in the defendant's performance of his duties because the center was fifteen miles from his home and because the scheduled days and hours for performance allegedly conflicted with his employment. In August of 1987, the defendant's probation officer moved for a modification of the condition of probation relating to community service. The condition was modified in accordance with the request of the probation officer on August 19, 1987, by the court, Corradino, J. The modification, in relevant part, is as follows: "(1) 6 hours of community service per week (total = 1000 hours) otherwise vop." ⁴ The defendant signed the condition as modified on October 6, 1987. ⁵ On December 8, 1987, the defendant was arrested, and the information stated that the arrest was for a "violation of the terms of probation in a judgment dated 12/6/85 by the Honorable Alvin Rottman." On the same day, the defendant was released on bond. A probation revocation hearing was held in March, 1988.

The application for the arrest warrant was based upon an affidavit of the defendant's probation officer. The application was also reviewed and signed by the chief probation officer. The affidavit stated that the special condition relating to community service had been modified by Corradino, J., on August 19, 1987, and the affidavit contained twenty paragraphs of fact-specific allegations relating to the alleged violation of the modified condition of probation.

Thus, the information charged the defendant with a violation of the conditions imposed by Rottman, J., but the affidavit upon which the arrest warrant was based and signed asserted a violation of the modified condition as ordered by Corradino, J. The trial court, Geen, J., which conducted the revocation of probation hearing, stated that the issue was whether the defendant had performed six hours (per week) of community service, thus referring to the modified condition imposed by Corradino, J. The parties and the court conducted the hearing based on whether the defendant had or could have complied with the modified condition of probation as to community service.

The charge set forth in the information--a violation of an order of one court--was not the charge--a violation of an order of another court--upon which the hearing was based. The state does not deny that that is so, but argues that because the defendant did not contest the specificity of the information in the trial court, he is precluded from doing so on appeal, and claims that no review should be accorded the claim under State v. Evans, supra.

State v. Thurman, 10 Conn.App. 302, 306-307, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987), establishes a four part test for determining the reviewability of an Evans claim. The defendant has characterized his claim as one of due process, a violation of his constitutional rights, and has, therefore, passed the first prong of the Thurman test. The second question under Thurman is whether the defendant, as a probationer, has a constitutional claim based upon a limited review of the record. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1972), answers that question in the affirmative. A probationer has a minimal guarantee of due process; id., 782, 93 S.Ct. at 1759; and a limited review of the record reveals that the defendant's claim is supported. Due process requires that a defendant be given notice of the specific charge against him or her. See State v. Steve, 208 Conn. 38, 47, 544 A.2d 1179 (1988). The claim is reviewable, therefore, and we review it to determine whether, in fact, there was any deprivation of a constitutional right.

We conclude that there was not a deprivation of a constitutional right because the defendant was not prejudiced by the variance between the information and the affidavit that supported the arrest warrant. See State v. Steve, supra; State v. Dahlgren, 200 Conn. 586, 597, 512 A.2d 906 (1986). The defendant's conduct of his defense was based on the warrant and its accompanying affidavit, as was the state's presentation of its case for the revocation of the defendant's probation. The affidavit on which the warrant was based was extremely specific, and the hearing was held based on the allegations in the affidavit. The defendant, therefore, was not prejudiced by the lack of specificity in the information. We conclude that, on the basis of this record, the defendant was not deprived of a constitutional right.

The second issue that must be resolved is whether the due process clause of the fourteenth amendment to the United States constitution entitles the defendant to a preliminary probable cause hearing under the dictates of Gagnon v. Scarpelli, supra, and Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

The state urges that we not consider that issue because the defendant did not raise it prior to or during the probation revocation hearing, and because it is not reviewable under State v. Evans, supra. Additionally, the state argues that although the claim was the subject of the denial of the defendant's motion to open, that denial was not the subject of any amended appeal. The defendant's position is that his motion to the trial court to open and set aside the judgment of probation revocation based upon the constitutional right allegedly accorded him under Gagnon, was sufficient to preserve his appellate rights. He also urges that because he raised the claim in his preliminary statement of issues filed with this appeal, he has preserved his appellate rights as to it. He argues, furthermore, that, in any case, the issue must be reviewed under Evans.

It is not necessary for us to decide whether the defendant's failure to amend his appeal to request review of the denial of his motion to open the judgment based upon a constitutional claim, as opposed to an attempt to open a judgment to offer additional evidence; Freccia v. Martin, 163 Conn. 160, 302 A.2d 280 (1972); precludes him from now raising the issue on appeal. See also Brown v. Brown, 190 Conn. 345, 350, 460 A.2d 1287 (1983). The issue is reviewable because, based upon a limited review of the record, the defendant's claim amounts to one of a constitutional deprivation of his due process rights allegedly accorded to him under Gagnon v. Scarpelli, supra. See State v. Thurman, supra.

The next question that must be resolved is whether the defendant was, in fact, deprived of a constitutional right because of the failure of the trial court to conduct a preliminary hearing. We conclude that the procedure followed, which did not include a preliminary hearing to establish probable cause for a probation violation, gave the defendant the procedural due process rights to which he was entitled.

Since the cases of Gagnon v. Scarpelli, supra, and Morrissey v. Brewer, supra, were decided, the precise due process rights that should be accorded to probationers in Connecticut pursuant to the fourteenth amendment have not been clearly delineated. In this state there are statutes, rules of practice, and case law on the subject that are not entirely consistent.

The appellate courts have not yet determined whether, or under what conditions, statutes and rules of practice require both a preliminary hearing and a subsequent formal hearing to determine whether probation should be revoked because of the violation of a condition of probation.

The response to the issue requires an examination of Gagnon and Morrissey and their decisional donees, with an awareness of General Statutes § 53a-32(a) ⁶ and Practice Book § 943. ⁷

Morrissey v. Brewer, supra, held that the minimum due process requirements for revocation of parole include written notice of the claimed parole violation,...