State v. Soldi

• Citation: 887 A.2d 436,92 Conn.App. 849
• Decision Date: 03 January 2006
• Docket Number: No. 25526.,25526.
• Parties: STATE of Connecticut v. Rosemarie C. SOLDI.
• Court: Supreme Court of Connecticut

887 A.2d 436

92 Conn.App. 849

STATE of Connecticut v. Rosemarie C. SOLDI.

No. 25526.

Appellate Court of Connecticut.

Argued September 22, 2005.

Decided January 3, 2006.

Glenn W. Falk, special public defender, for the appellant (defendant).

Julia K. Conlin, assistant state's attorney, with whom, on the brief, were Mary M. Galvin, state's attorney, and Sharon Sloan Koziol, special deputy assistant state's attorney, for the appellee (state).

FLYNN, BISHOP and McDONALD, Js.

FLYNN, J.

The defendant, Rosemarie C. Soldi, appeals from the judgment of the trial court finding her in violation of probation and sentencing her to forty-two months imprisonment. On appeal, the defendant claims that the court improperly (1) denied her motion to dismiss, and (2) sentenced her without making a specific finding that the beneficial purposes of probation could no longer be served and that she posed a danger to herself or to others. We agree with the defendant's first claim and, accordingly, reverse the judgment of the trial court.

The following facts, reasonably garnered from the record, are relevant to our resolution of the defendant's appeal. On September 1, 1994, the defendant was sentenced to five years incarceration, execution suspended, and three years probation on a charge of larceny in the second degree.¹ A special condition of the defendant's probation was the payment of restitution to the corporate victim in the amount of $3600, payable at a rate of $100 per month throughout her probationary period. The defendant's probation officer, Jim Rapuano, explained that condition to her and the need to make those payments timely. The defendant acknowledged understanding that condition by signing her conditions of probation form. Although the defendant's probationary period was set to expire on September 1, 1997, the defendant, as of August 29, 1997, had made no payments toward her restitution, and an arrest warrant was issued specifically for her failure to make payments. After Rapuano made several unsuccessful attempts to contact the defendant to alert her that a warrant had been issued, he transferred the warrant to the West Haven police department in November, 1997. Apparently, no action was taken on the warrant by the police, and, on January 28, 2003, when the defendant appeared in court on unrelated charges, she, finally, was served with the August, 1997 warrant.

The defendant filed a motion to dismiss, claiming, in part, that the prosecution of the violation of probation was untimely because the warrant was not executed with due diligence in that it was not served on her until more than five years after it had been issued. On March 12, 2004, the court denied the motion in a written memorandum of decision. The defendant's violation of probation hearing was held on April 21, 2004, at which time the court found the defendant to be in violation of her probation for failing to pay restitution. At her April 28, 2004 sentencing hearing, counsel informed the court that he had in his possession a bank check to cover the defendant's restitution. Nevertheless, the court sentenced the defendant to forty-two months imprisonment for the violation. This appeal followed.

On appeal, the defendant claims that the court improperly denied her motion to dismiss on the ground of unreasonable delay or lack of due diligence in executing the arrest warrant. She also claims that the statute of limitations, General Statutes § 54-193(b),² applies in this case as a bar to prosecution. The defendant argues, inter alia, that the court improperly "discount[ed] the lapse of time of more than five years, longer than the statutes of limitations for the crime at issue, as not itself constituting unreasonable delay." She proceeds to argue that once there was undisputed testimony that the defendant was not a fugitive, but resided in West Haven during the time that the warrant was outstanding, the court improperly continued to place "the burden upon the defendant to produce additional evidence [concerning unreasonable delay or lack of due diligence] which was within the exclusive knowledge and control of the police department." We agree that the court improperly denied her motion to dismiss on the ground of unreasonable delay or lack of due diligence in executing the arrest warrant.³

We must first consider the standard of review where a claim is made that the court improperly failed to grant a motion to dismiss. "Our standard of review of a trial court's ... conclusions of law in connection with a motion to dismiss is well settled.... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts.... Thus, our review of the trial court's ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo." (Internal quotation marks omitted.) State v. Vitale, 76 Conn.App. 1, 14, 818 A.2d 134, cert. denied, 264 Conn. 906, 826 A.2d 178 (2003).

In its memorandum of decision on the defendant's motion to dismiss, the court found, inter alia, the following relevant facts: "The defendant has moved to dismiss the violation of probation charge. A hearing was held on March 4, 2004. At the hearing, the defendant's case consisted of her testimony and that of Rapuano. The defendant testified that, except for approximately two months when she lived in Norwich, during the period between August 29, 1997, and January 28, 2003, she lived continuously in West Haven. She had four different addresses during that period, two on Peck Avenue, one on Park Street and one for a short period on California Street. The Park Street address was a three-family home owned by her brother continuously from 1978. During this period, she had one or more vehicles registered in her name with a West Haven address. She had a driver's license with a West Haven address. Because of a stroke on Mother's Day in 1996, she was unemployed during the sixty-five month period in which the warrant was not served on her. The utilities for the residences where she lived were in her name. Her daughter continuously attended West Haven schools, including Carrigan Middle School and West Haven High School. The defendant testified that she made no effort to evade the police.

"Between August 29, 1997, and November, 1997, when he held the warrant, Rapuano testified that he knew of the two Peck Avenue addresses and the Park Street address where, the defendant testified, she resided at various times. He sent letters to those addresses and attempted to contact the defendant by telephone. There was testimony that the defendant's telephone may not have been in service during this period. Because at least some of the letters were not returned to the probation office, Rapuano concluded that the defendant knew about the warrant and his efforts to have her come to the probation office. There was no testimony from the West Haven police department."

The court went on to deny the defendant's motion to dismiss solely focusing on the defendant's statute of limitations defense. It did not analyze the motion under the due process clause of the fourteenth amendment, although the defendant had asserted and briefed both claims. In denying the motion, the court explained that "[t]he defendant did not offer any testimony that the West Haven police did not make attempts to serve the warrant or that such police could be charged with unreasonable delay or lack of due diligence. Without evidence to the contrary, this court cannot assume that the warrant was executed with unreasonable delay or lack of due diligence." We disagree with the court that such an assumption was necessary and conclude that once the defendant put forth evidence that she did not attempt to evade arrest, she was living in West Haven for all but two months during that five year period, her daughter attended West Haven schools, utilities for her residences were in her name, a vehicle was registered at her address, her driver's license had her address on it and her probation officer testified that he knew of those addresses, the burden should have shifted to the state to prove that due diligence was exercised in failing to serve the warrant for more than five years.

"The Due Process Clause of the Fourteenth Amendment imposes procedural and substantive limits on the revocation of the conditional liberty created by probation." Black v. Romano, 471 U.S. 606, 610, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985). "[T]he issuance of a violator warrant triggers a process which, as a matter of fundamental fairness, must be pursued with reasonable diligence and with reasonable dispatch. What will constitute a reasonable time will, of necessity, vary with the facts of each case. Obviously, a violator who has succeeded in evading the authorities is in no position to complain of a delay. Even in other cases delay will not in and of itself suffice to show prejudice, except in an extreme case, and actual prejudice vel non is the focal point of the inquiry. Shelton v. United States Board of Parole, 388 F.2d 567, 574 (D.C.Cir.[1967]) ...." (Citation omitted; internal quotation marks omitted.) Parham v. Warden, 172 Conn. 126, 135, 374 A.2d 137 (1976). In Shelton, which our Supreme Court quoted in Parham, the United States Court of Appeals for the District of Columbia Circuit noted that in cases where extreme delays in the execution of a parole violation warrant are involved, prejudiced is presumed. Shelton v. United States Board of Parole, supra, at 574 n. 10.

There is no Connecticut case law that completely is on point with the case at bar. There are, however, several cases that are instructive. In Parham v. Warden, supra, 172 Conn. at 128-29, 374 A.2d 137, the defendant was paroled on or about September 17, 1971, with his parole set to expire on May 1, 1974. A parole violation warrant was issued for his arrest on December 21, 1971. Id., at 129, 374 A.2d 137....