State v. Butler

• Decision Date: 07 December 2021
• Docket Number: AC 43812
• Citation: 267 A.3d 256,209 Conn.App. 63
• Parties: STATE of Connecticut v. Carlton BUTLER
• Court: Connecticut Court of Appeals

209 Conn.App. 63

267 A.3d 256

STATE of Connecticut

v.Carlton BUTLER

AC 43812

Appellate Court of Connecticut.

Argued May 24, 2021

Officially released December 7, 2021

Kenneth Rosenthal, New Haven, for the appellant (defendant).

Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, were Margaret E. Kelley, state's attorney, Rebecca A. Barry, supervisory assistant state's attorney, and Mary A. SanAngelo, senior assistant state's attorney, for the appellee (state).

Prescott, Alexander and Bishop, Js.

PRESCOTT, J.

This appeal requires us to determine, as a matter of first impression, whether a criminal court has the power to open a judgment of dismissal rendered by the court after concluding that a defendant satisfactorily has completed a statutorily authorized diversionary program. Specifically, the defendant, Carlton Butler, appeals from the judgment of the trial court granting the state's motion to open a judgment of dismissal that the court rendered following a determination that he satisfactorily had completed a two year, supervised diversionary program for persons with psychiatric disabilities in accordance with General Statutes § 54-56l .¹

The defendant claims that the trial court lacked the power to open the judgment of dismissal once rendered and that, by doing so, it violated important liberty and finality of judgment interests. The state responds that the trial court possessed both subject matter jurisdiction and the authority to open the judgment of dismissal because the state filed its motion to open the judgment "within four months [of rendering the judgment of dismissal] and the dismissal was predicated on a material misrepresentation made to the court." We agree with the defendant that the court lacked the power to grant the state's motion to open the judgment. Accordingly, we reverse the judgment of the trial court.

The procedural history relevant to our consideration of the present appeal is not in dispute. In June, 2017, the defendant was charged with risk of injury to a child in violation of General Statutes § 53-21 and breach of the peace in the second degree in violation of General Statutes § 53a-181. The charges arose from an incident that allegedly occurred at a McDonald's restaurant in Derby. According to the state, an employee of the restaurant entered the restaurant's public bathroom and discovered the defendant in a bathroom stall with a twelve year old boy. The employee observed that the boy had his pants down and that the defendant was standing behind and to the side of the boy with his own shorts down and his genitals exposed. When the defendant was contacted by the police, he initially denied being at the restaurant but later claimed that he was helping the boy go to the bathroom.

In August, 2017, the defendant filed an application to participate in the supervised diversionary program for persons with psychiatric disabilities as set forth in § 54-56l .² On October 2, 2017, on confirmation from the Court Support Services Division that the defendant was eligible for the program and after consideration of the recommended treatment plan, the court, Brown, J. , granted the defendant's application and referred the defendant to the Court Support Services Division for supervision in the program. Prior to granting the application, the court canvassed the defendant, who acknowledged that he understood that among the conditions that would be imposed on him if he was allowed to participate in the diversionary program was a requirement that he have no contact with minors, which included not volunteering or working in any capacity with any minors and not going to any areas frequented by minors. The defendant indicated that he was willing to abide by all conditions. The court continued the case until October 2, 2019.

Over the next two years, the defendant struggled with the counseling requirements under the program, which resulted in several additional court appearances. Specifically, on October 4, 2018, the defendant appeared before the court, McShane, J. , because he did not successfully complete a mental health program at Connections, Inc., and was discharged from the program. The defendant argued that the probation officer assigned to oversee his case believed that a different program offered at the Sterling Center "would be a better fit for him in consideration of his mental health issues," and he asked the court to allow him to continue in the diversionary program. The court noted that the defendant otherwise appeared to be in compliance with the conditions imposed under the program but ordered that it would need to see a compliance report and to conduct a follow up hearing. Several follow up hearings ensued at which problems regarding the defendant's attendance at counseling sessions were discussed and, ultimately, resolved.

On June 24, 2019, the defendant returned to court, at which time the court indicated that it had received a report that the defendant successfully had completed all of his sessions at the Sterling Center. The court congratulated the defendant on the record, stating: "We get very few success stories here. When the lawyer brought out a letter and I saw it was a long one, I went, well, this isn't going to be good, but it's just the opposite. It was a great letter." The court continued the case to October 2, 2019, for possible dismissal.

The Court Support Services Division issued a final progress report dated September 25, 2019, which indicated that "[t]he [d]efendant has not satisfactorily completed the assigned program ...." Attached to the report was a letter from the defendant's probation officer. According to that letter, the probation officer had received information from an anonymous source at the end of August, 2019, that the defendant recently had volunteered for a YMCA trip that involved minors. The probation officer attempted to investigate but was unable to verify the accuracy of the information provided by the anonymous source.

The officer nevertheless indicated in his letter that he had learned that the defendant was not allowed to enter YMCAs in Waterbury and Torrington "due to separate undisclosed incidents" and that the director at the Plainville YMCA had informed him that the defendant "had unsuccessfully applied for three separate employment positions as a ‘camp counselor’ on [March 15, 2019]." The officer also stated in his letter that the defendant had failed to report to probation on September 18, 2019, as required, and that, as of the date of the letter, the defendant "has failed to contact this officer and his whereabouts are unknown."

At the October 2, 2019 hearing, the court began by noting that "[t]he case today is on for a potential dismissal date." The state, relying on the statements and unsubstantiated allegations contained in the letter attached to the final progress report as well as the factual allegations underlying the criminal charges pending against the defendant, argued that the court should not grant a dismissal of those charges.³ The state did not request a continuance or stay of the hearing to conduct a further investigation into the allegations in the report, and it offered no testimony, affidavits, or any additional documentary evidence to corroborate the defendant's purported lack of success in completing the diversionary program or his lack of compliance with conditions imposed by the court in granting the defendant's application for the program.

Defense counsel, in response to the state, argued that he also found the letter attached to the final report concerning "but for different reasons than the state." He continued: "[The defendant] does not own a driver's license. He does not own a car. His father drives him everywhere. His father is present here in the courtroom and is willing to come up and talk to Your Honor. Your Honor, I talked to [the defendant's] father who stated that [the defendant] has never gone on a YMCA trip as a volunteer. He's also indicated to me that he's never—they live in Waterbury. He's also indicated to me that he's never driven [the defendant] to the Plainville YMCA to apply for a job.

"Secondly, Your Honor, the reason why [the defendant] is not allowed at the YMCAs is because prior to this case—prior to the supervised Diversionary Program being granted, he was going to the YMCA. While the case was pending, he was going to the YMCA. At that point someone notified the YMCA of his arrest. They told him he was no longer allowed back. So I found it concerning in this letter that some of this information is very dated. Okay? And secondly, based on his father's own representation to me, false.

"It's true, [the defendant] will admit that he did not go to his last probation meeting on September [18, 2019]. [The defendant] forgot about it. After two years it's the one and only one he's ever missed. [The defendant] is attending Goodwin College, however I know [the defendant] likes to tell people he's living in East Hartford, but after speaking with his father, he still lives at home with his father. His father drives him to Goodwin College. I know in chambers, Your Honor, I had indicated that [the defendant] did apply for an adult counselor position, but that was through Easter Seals. That was not through the YMCA. So we don't even know if this YMCA application is [the defendant] himself. [The defendant's] father would probably tell Your Honor, because he's told me that he's never driven [the defendant] to the Plainville YMCA. To his knowledge, [the defendant] has never applied to be—through the YMCA for anything. He's never, to his knowledge, ever went on a trip with minors. [The defendant's] only mode of transportation is through his father. He's never taken his father's car without permission. [The defendant] doesn't own a car. He doesn't have a driver's license.

"So for those reasons, Your Honor, I find this letter very concerning because a lot of it—it's a lot of allegations that's refuted...