In Re Earl B.

• Decision Date: 18 May 2010
• Docket Number: No. 30491.,30491.
• Citation: 121 Conn.App. 269,994 A.2d 713
• Court: Connecticut Court of Appeals
• Parties: In re EARL B.

121 Conn.App. 269

994 A.2d 713

In re EARL B.^*

No. 30491.

Appellate Court of Connecticut.

Argued Nov. 17, 2009.

Decided May 18, 2010.

James Jude Connolly, supervisory assistant public defender, for the appellant (respondent).

Melissa L. Streeto, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Cathleen Edwards, supervisory juvenile prosecutor, for the appellee (state).

BISHOP, ALVORD and FOTI, Js.

FOTI, J.

The respondent, Earl B., appeals from the judgment of the trial court denying his motion to correct an illegal sentence. On appeal, he claims that the sentencing court exceeded its statutory authority by imposing that portion of his agreed on sentence that banished him from New Haven County for forty-two months. Specifically, the respondent argues that the court, in accepting his plea agreement, exceeded its authority pursuant to General Statutes § 46b-140 (i) ¹ in two ways. First he claims that the court extended the maximum length of the sentence allowed under the statute from twelve months to forty-two months. He also contends that the court exceeded its statutory authority, which allows a court only to place a juvenile in a residential facility, by issuing an order of banishment from New Haven County. We dismiss the appeal as moot.

The respondent and three co-conspirators carjacked a woman at gunpoint, forced her into the trunk of her car and drove to a secluded area where two of the coconspirators raped and beat her nearly to death. The co-conspirators who committed the sexual assault were each tried as adults, convicted and sentenced to eighty-five years incarceration. See State v. Foreman, 288 Conn. 684, 690, 954 A.2d 135 (2008); State v. Sargeant, 288 Conn. 673, 678, 954 A.2d 839 (2008). As a result of those incidents, the respondent was charged with kidnapping in the first degree with a firearm in violation of General Statutes § 53a-92a, robbery in the first degree in violation of General Statutes § 53a-134, conspiracy to commit kidnapping in the first degree with a firearm in violation of General Statutes §§ 53a-92a and 53a-48, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134, sexual assault in the first degree in violation of General Statutes § 53a-70, assault in the first degree in violation of General Statutes § 53a-59, conspiracy to commit sexual assault in the first degree in violation of General Statutes § § 53a-70 and 53a-48, and conspiracy to commit assault in the first degree in violation of General Statutes § § 53a-48 and 53a-59. Being only thirteen years old when the crime was committed, the respondent could not be tried as an adult. The state negotiated a plea agreement with the respondent in which he pleaded guilty under the Alford doctrine ² to conspiracy to commit robbery in the first degree in violation of §§ 53a-48 and 53a-134, a serious juvenile offense as defined by General Statutes (Rev. to 2003) § 46b-120 (12). The record reveals that the banishment order was part of the voluntary plea agreement the state reached with the respondent. In oral argument to this court, the state claimed that the banishment order was meant to assure the victim that she could leave her apartment without inadvertently encountering the respondent.

On September 23, 2005, after the respondent had been convicted via the plea agreement as delinquent, he was committed, pursuant to an agreed on sentence, to the custody of the commissioner of children and families (commissioner) for a period not to exceed four years. Also, on that date, as part of the respondent's agreed on sentence, the court issued a separate order for three and one-half years of banishment from New Haven County. The banishment order was set to expire on March 23, 2009. The court, also as part of the agreed upon sentence, ordered the department of children and families (department) to keep apprised the victim, the victim's advocate and the state's attorney's office in Juvenile Court in New Haven of the respondent's location if he was to be outside of the training school's secured setting. The court noted that the state, in resolving the respondent's disposition and coming to an agreed on sentence that included the banishment order, took into consideration many factors including the victim's well-being and safety.³ See General Statutes § 46b140 (a) (“[i]n determining the appropriate disposition of a child convicted as delinquent, the court shall consider ... [t]he seriousness of the offense, including the existence of any aggravating factors such as ... the impact of the offense on any victim”). The respondent immediately was placed at the Connecticut Juvenile Training School; subsequently, however, he was released from the training school and placed in a residential treatment program in Pennsylvania. Earl B. v. Commissioner of Children & Families, 288 Conn. 163, 167-69, 175, 952 A.2d 32 (2008).

On April 2, 2008, the commissioner filed with the court a motion for review of the department's permanency plan for the respondent.⁴ The department's plan called for the continuation of the respondent's commitment as a serious juvenile offender and for reunification with his mother. At that time, the respondent's mother was residing in Meriden with her brother, the respondent's uncle.⁵ Another aspect of the permanency plan was for the respondent to earn community passes in order for him to visit his uncle's home in Meriden. In his report that was filed with the motion, the department social worker estimated that the respondent would earn his first community pass some time in July 2008. On May 7, 2008, the court held a permanency plan hearing. Present at the hearing were attorneys Jessica Gauvin, representing the department, James Jude Connolly, the respondent's attorney, and juvenile prosecutor Vincent Duva, representing the state. During the hearing, Connolly orally moved for the banishment order to be modified to allow the respondent to “return to Meriden and that [would be] the only town or city in New Haven County [in which] he would be allowed.” The court granted the motion to modify the banishment order to allow the respondent to reside in Meriden, with his mother and uncle, and stated that was “the only location within New Haven County that he will be able to reside in that will not result in a violation of the banishment order.” The court then found that the department made reasonable efforts at reunification and approved the plan.

On May 9, 2008, the state ⁶ filed with the court a motion for reconsideration and immediate rehearing. On May 19, 2008, the respondent filed a motion to dismiss the state's motion for lack of subject matter jurisdiction. The court held a hearing on May 20, 2008, in order to consider the motions, at the conclusion of which the court continued the hearing to allow for additional briefing and stayed its May 7, 2008 order modifying the banishment order. On June 20, 2008, the respondent filed a motion to correct an illegal sentence. On July 8, 2008, the parties concluded their arguments concerning all matters involving the various motions before the court. By memorandum of decision filed November 6, 2008, the court dismissed the state's motion for reconsideration, reasoning that once a child who has been adjudicated delinquent has been committed to the department, the state, in its role as juvenile prosecutor, no longer is a party to subsequent proceedings involving that child's commitment. The court also denied the respondent's motion to correct an illegal sentence, concluding that both the commitment and the banishment order each were within the bounds of § 46b-140 (i).

On appeal, the respondent challenges the propriety of the forty-two month banishment order. Because the banishment order expired on March 23, 2009, the parties each concede that the respondent's appeal is moot.⁷ We agree, however, that this does not end our analysis because an otherwise moot question may qualify for review under the “capable of repetition, yet evading review” exception to the mootness doctrine. To qualify for review under that exception, an otherwise moot question must meet the three requirements set out in Loisel v. Rowe, 233 Conn. 370, 660 A.2d 323 (1995). “First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot.” Id., at 382-83, 660 A.2d 323.

“The first element in the analysis pertains to the length of the challenged action.... The basis for this element derives from the nature of the exception. If an action or its effects is not of inherently limited duration, the action can be reviewed the next time it arises, when it will present an ongoing live controversy. Moreover, if the question presented is not strongly likely to become moot in the substantial majority of cases in which it arises, the urgency of deciding the pending case is significantly reduced.” (Citations omitted.) Id., at 383-84, 660 A.2d 323. “[A] party typically satisfies this prong if there exists a ‘functionally insurmountable time [constraint]’ ”; Dutkiewicz v. Dutkiewicz, 289 Conn. 362, 367, 957 A.2d 821(2008); or “the challenged action had an intrinsically limited lifespan.” Loisel v. Rowe, supra, 233 Conn. at 383, 660 A.2d 323.

Because the limits of a Juvenile Court's authority are fixed by statute; see Dart v....