State v. Cooley

• Citation: 488 A.2d 1283,3 Conn.App. 410
• Decision Date: 26 March 1985
• Docket Number: No. 2009,2009
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Judy COOLEY.

Page 1283

488 A.2d 1283

3 Conn.App. 410

STATE of Connecticut v. Judy COOLEY.

No. 2009.

Appellate Court of Connecticut.

Argued Nov. 13, 1984.

Decided March 26, 1985.

Laura A. Cahill, Hartford, certified legal intern, and Joette Katz, Asst. Public Defender, with whom, on the brief, was Kenneth Rosenthal, Asst. Public Defender, for appellant (defendant).

John H. Malone, Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Jeffrey L. Kline, Asst. State's Atty., for the appellee (State).

Before DUPONT, C.P.J., and SPALLONE and DALY, JJ.

DUPONT, Chief Presiding Judge.

The trial court, after a hearing pursuant to General Statutes § 53a-32, found the defendant in violation of one of the conditions of her probation and rendered judgment imposing the defendant's original sentence of sixty days imprisonment, which had been suspended. The defendant appeals, ¹ claiming a violation of her due process rights under the fourteenth amendment to the United States constitution and an abuse of the court's discretion.

The defendant, after a jury trial, was found guilty of breach of the peace, a violation of General Statutes § 53a-181. The offense arose from a conflict between the defendant and her ex-husband's present wife. The condition of probation here involved was that the defendant receive "some type of therapeutic or psychiatric counseling ... if recommended by the probation officer." ² This condition was imposed on the date of sentencing in early May, 1981; the adult probation officer advised the defendant of it on May 27, 1981, during her initial probation conference. At that time, and, subsequently, on June 2, 1981, the defendant expressed her disagreement with the condition. Nevertheless, on June 8, 1981, the defendant was, on her own initiative, interviewed at the Enfield Mental Center where no assessment was made of her mental condition. She did not advise her probation officer of her interview and she continued to express her belief during the interview that the probation condition was unwarranted, too expensive and too difficult for compliance. Meanwhile, on June 3, 1981, the probation officer made application for an arrest warrant, charging the defendant with noncompliance with the condition. The warrant was subsequently issued and the defendant was arrested in August of 1981. In October of 1981, the defendant made application for a sentence modification, seeking the removal of that condition of probation, stating therein that the condition was punitive rather than rehabilitative.

On April 13, 1982, the trial court, Wagner, J., conducted a hearing on the violation of probation, and the same hearing was expanded to include the defendant's motion for removal of the condition. The court granted the latter motion "on an interim basis reserving my right to reinstate it." At that hearing, the defendant introduced into evidence a psychological assessment, dated March 9, 1982, by a psychologist of the court's diagnostic clinic, which concluded that nothing which the author knew, either historically or as a result of observation, suggested that the defendant had ever labored under any gross psychiatric symptomatology and that there was no evidence as of the time of the interview, March 5, 1982, to suggest that she was psychiatrically disturbed or in need of psychiatric intervention.

On April 27, 1982, the trial court, Klaczak, J., upon the renewal by the state of its claim that the defendant had violated the condition of her probation, held further hearings, culminating in the judgment that the condition of her probation was violated, and that her probation should be revoked and the original sentence reinstated.

The constitutional claim of the defendant was not raised below and any review of it is limited. Practice Book § 3063; State v. Kurvin, 186 Conn. 555, 564-65, 442 A.2d 1327 (1982). The defendant has not advanced an exception to this general rule under State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973). Furthermore, the cases cited by her, Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), are inapposite. Those cases involved entitlement to a hearing, entitlement to counsel and notification of the hearing. Here, the defendant had a hearing, was notified and was represented by counsel.

The question for appellate review is whether the trial court abused its discretion in revoking probation and invoking the original sentence, after finding a historical violation of one of the conditions. At the time of the finding of the violation, the only evidence as to the underlying need for the condition was that it was not necessary.

The standard of appellate review in a probation revocation hearing distills to a review of the reasonableness of two findings. The findings to be reviewed are whether the condition of probation was violated and whether the beneficial purpose of the condition is still being served. State v. Roberson, 165 Conn. 73, 80, 327 A.2d 556 (1973). Even if the trial court could reasonably determine that the defendant had transgressed the condition of her probation by refusing to acquiesce in its necessity and in refusing over the course of one week to abide by it, it could not have...