State v. Fernando A.

• Decision Date: 03 November 2009
• Docket Number: No. 18045.,No. 18103.,18045.,18103.
• Citation: 981 A.2d 427,294 Conn. 1
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. FERNANDO A.<SMALL><SUP>*</SUP></SMALL>

981 A.2d 427

294 Conn. 1

STATE of Connecticut v. FERNANDO A.^*

No. 18045.

No. 18103.

Supreme Court of Connecticut.

Argued March 12, 2008.

Decided November 3, 2009.

Steven D. Ecker, Hartford, with whom was Alinor C. Sterling, Branford, for the appellant (defendant).

Robert J. Scheinblum, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, Kevin J. Dunn, assistant state's attorney, and David R. Applegate, deputy assistant state's attorney, for the appellee (state).

Richard Blumenthal, attorney general, and Jane R. Rosenberg and Susan Quinn Cobb, assistant attorneys general, filed a brief for the department of children and families as amicus curiae.

Hakima Bey-Coon filed a brief for the office of the victim advocate as amicus curiae.

Daniel J. Foster filed a brief for the American Civil Liberties Union Foundation of Connecticut as amicus curiae.

Anne C. Dranginis and Proloy K. Das, Hartford, filed a brief for the Connecticut Coalition Against Domestic Violence as amicus curiae.

ROGERS, C.J., and NORCOTT, PALMER, VERTEFEUILLE, ZARELLA, SCHALLER and McLACHLAN, Js.¹

NORCOTT, J.

In this public interest appeal, we consider the nature of the hearing that a defendant must receive prior to the issuance of a criminal protective order in a family violence case (criminal protective order) pursuant to General Statutes § 54-63c(b).² The defendant, Fernando A., appeals upon the grant of his application filed pursuant to General Statutes § 52-265a,³ from the trial court's denial of his request for an evidentiary hearing prior to the issuance of a criminal protective order. We conclude that § 54-63c(b), and the cross-referenced General Statutes § 46b-38c,⁴ permit the trial court to issue a criminal protective order at the defendant's arraignment after consideration of oral argument and the family violence intervention unit's report (family services report). We also conclude that the trial court is required to hold, at the defendant's request made at the initial hearing, a subsequent hearing within a reasonable period of time at which the state will be required to prove the continued necessity of that order by a fair preponderance of the evidence which may include reliable hearsay. Because the defendant did not receive this subsequent hearing as requested, we reverse the decision of the trial court.

The record reveals the following undisputed facts and procedural history. The defendant and his wife are involved in divorce proceedings. On October 14, 2007, the defendant was arrested on numerous family violence criminal charges arising from an incident wherein he allegedly had assaulted his wife.⁵ Pursuant to § 54-63c(b), the police released the defendant that day on the conditions that he not enter the family home and that he avoid contact with his wife pending his first court appearance. At that appearance on October 15, 2007, the trial court, Pavia, J., reviewed the family services report, and issued a criminal protective order as a condition of his pretrial release. Judge Pavia denied the defendant's request for an evidentiary hearing at that time, reasoning that "immediate judicial review of this matter is necessary to protect the safety and well-being of the victim and the family," and that "the need for expeditious assumption of judicial control following a defendant's arrest outweighs the need to minimize risk of error through adversary procedures." Judge Pavia then continued the case to October 18, 2007, so that the defendant could request a hearing on that date.

Subsequently, on October 18, 2007, the defendant appeared before the trial court, Bingham, J., to request an evidentiary hearing to contest the continuation of the criminal protective order. The defendant argued that he was entitled to a full evidentiary hearing under both § 54-63c and the due process clause of the fourteenth amendment to the United States constitution⁶ because the criminal protective order interfered with his "fundamental constitutional liberties to family integrity: his right to be in his home, and not to be subject to a restraining order issued by a court and law enforcement authorities without judicial imprimatur." Judge Bingham denied the defendant's request for an evidentiary hearing, reasoning that the procedure for issuing a domestic violence protective order in criminal cases "is similar to a bail hearing, and you're not entitled to a full trial on a bail hearing."⁷ See also footnote 26 of this opinion. This certified and expedited appeal followed.⁸ See footnote 3 of this opinion.

On appeal, the defendant contends, inter alia, that the trial court improperly failed to conduct an evidentiary hearing prior to issuing a criminal protective order because § 54-63c(b) "expressly require[d]" the trial court to hold such a hearing when he first appeared in court. The defendant argues that the word "hearing," as used in § 54-63c(b), means an adversarial and formal adjudicative proceeding at which issues of fact and law are tried, evidence is taken, and witnesses and parties are heard. The defendant further contends that the cross-reference in § 54-63c(b) to § 46b-38c, the family violence criminal procedure statute that authorizes courts to impose criminal protective orders at the defendant's first court appearance; see footnote 4 of this opinion; requires that the criminal statute be applied consistently with the similarly worded General Statutes § 46b-15,⁹ which he argues, contemplates a full evidentiary hearing within fourteen days of the ex parte issuance of a civil domestic violence temporary restraining order. Finally, the defendant cites the legislative history of the statutes, and also relies on the rule of lenity, under which ambiguous criminal statutes are construed against the state.

In response, the state contends that criminal protective orders arise from bail or pretrial release proceedings that do not by themselves require an evidentiary hearing. The state also argues that, when the legislature enacted No. 07-123, § 1, of the 2007 Public Acts (P.A. 07-123), which amended § 54-63c (b), it presumptively was aware of State v. Doe, 46 Conn. Supp. 598, 610, 765 A.2d 518 (2000), which held that an evidentiary hearing is not constitutionally required prior to the issuance of a criminal protective order under § 46b-38c. Thus, had the legislature intended to require a full evidentiary hearing, it would have drafted § 54-63c(b) using language similar to that contained in the witness protective order statute, General Statutes § 54-82r.¹⁰ Finally, the state argues that the rule of lenity is inapplicable because it applies only when the statutory language, legislative history and underlying policies fail to resolve the ambiguity. Although we agree with the state that §§ 54-63c(b) and 46b-38c(d) permit the trial court to issue a criminal protective order at arraignment after consideration of oral argument and the family services report, we also conclude that those statutes require the trial court to hold, at the defendant's request made at the initial hearing, a subsequent hearing within a reasonable period of time wherein the state will be required to prove the continued necessity of that order by a fair preponderance of the evidence, which may include reliable hearsay.¹¹

"Issues of statutory construction raise questions of law, over which we exercise plenary review. . . . The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . .

"When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case including the question of whether the language actually does apply. . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Citation omitted; internal quotation marks omitted.) Felician Sisters of St. Francis of Connecticut, Inc. v. Historic District Commission, 284 Conn. 838, 847, 937 A.2d 39 (2008).

We begin with the text of § 54-63c(b), which authorizes police officers in "family violence crime" cases, after making "reasonable," but unsuccessful, attempts to reach a bail commissioner, to "order the release of such person upon the execution of a written promise to appear or the posting of such bond as may be set by the police officer and may impose nonfinancial conditions of release which may require that the arrested person do one or more of the following: (1) Avoid all contact with the alleged victim of the crime, (2) comply with specified restrictions on the person's travel, association or place of abode that are directly related to the protection of the alleged victim of the crime, or (3) not use or possess a dangerous weapon, intoxicant or controlled substance. . . ."¹² Section 54-63c(b) then provides that: "Any nonfinancial conditions of release imposed pursuant to this subsection shall remain in effect until the arrested person is presented before the Superior Court pursuant to subsection (a) of section 54-1g.¹³ On such date, the court shall conduct a hearing pursuant to section 46b-38c at which the defendant is entitled to be heard with respect to the issuance of a protective order." (Emphasis added.)

The text of § 54-63c(b)...