State v. Durkin

• Citation: 595 A.2d 826,219 Conn. 629
• Decision Date: 23 July 1991
• Docket Number: No. 14203,14203
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Timothy James DURKIN.

Page 826

595 A.2d 826

219 Conn. 629

STATE of Connecticut v. Timothy James DURKIN.

No. 14203.

Supreme Court of Connecticut.

Argued May 31, 1991.

Decided July 23, 1991.

Judith Rossi, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Richard Palombo, Asst. State's Atty., for the appellant (State).

Sigmund L. Miller, with whom was George P. D'Amico, Bridgeport, for appellee (defendant).

Before SHEA, CALLAHAN, GLASS, COVELLO and BORDEN, JJ.

GLASS, Associate Justice.

In this certified appeal by the state from the judgment of the Appellate Court in State v. Durkin, 23 Conn.App. 642, 583 A.2d 1303 (1990), we consider whether a defendant can be found voluntarily to have waived the right of presence at an ongoing court proceeding upon a failure to appear in court without explanation other than the fact that, in the twenty-one day interim resulting from a continuance granted by the court at the defendant's request, the defendant pleaded guilty and was sentenced and incarcerated on an unrelated charge in a foreign state. We conclude that out-of-state incarceration, alone, does not preclude a trial court from inferring such a defendant's voluntary waiver from the totality of the circumstances. Accordingly, we reverse.

In January, 1989, following his conviction of the crime of possession of narcotics, the defendant, Timothy James Durkin, was sentenced to a term of five years imprisonment, execution suspended, with three years probation. The conditions of the defendant's probation included the special condition that he remain "drug free," and the standard condition that he obtain permission from his probation officer before leaving Connecticut. Despite his written acknowledgment that he understood these conditions, subsequent drug tests revealed that the defendant had used cocaine on four occasions between March and May, 1989. The defendant thereafter was arrested pursuant to General Statutes § 53a-32 ¹ and was charged with violating his probation by failing to remain "drug free." The defendant pleaded not guilty to the charge and was released on a written promise to appear.

On September 20, 1989, the defendant appeared before the trial court for the commencement of his violation of probation hearing. After the state presented its entire case and rested, the defendant requested and was granted a continuance until October 11, 1989, on which date, defense counsel stated, the defense would present its case. ² At the October 11, 1989 hearing, however, the defendant did not appear in court. Defense counsel explained that at some point between the hearings, the defendant had been sentenced and incarcerated on an unrelated charge in either North or South Carolina. While professing a lack of knowledge as to the precise circumstances prompting the defendant's absence and incarceration, defense counsel indicated that he intended to assist the defendant in preparing a request to return voluntarily to Connecticut under the Interstate Agreement on Detainers (IAD); see General Statutes § 54-186; for the purpose of answering an unrelated felony charge then pending in Connecticut. Defense counsel then proposed that the revocation proceeding be continued until the defendant's return. Expressing its belief that the IAD did not apply to the revocation proceeding because it already had commenced and thus was not a "pending" matter, the trial court ordered a continuance until October 18, 1989, to permit the parties to research applicable law. ³

At the October 18, 1989 hearing, the defendant again failed to appear in court. Defense counsel notified the trial court that the sentencing and incarceration of the defendant had occurred in South Carolina, and further indicated that he did not believe that the defendant had "intended when he went down to South Carolina to end up going to prison, and I don't know exactly what did happen." Finding the explanation provided for the defendant's absence to be both unsubstantiated and insufficient, the trial court determined that his absence was a consequence of his voluntary act of leaving Connecticut "to meet whatever he felt to be his responsibilities" in South Carolina. The trial court then granted the state's request to proceed in the defendant's absence and found him in violation of the terms of his probation on the basis of the evidence introduced by the state. As a consequence, the trial court terminated the defendant's probation, opened the original judgment, and reimposed the original sentence of five years imprisonment. The trial court nonetheless granted defense counsel's request for a continuance until November 20, 1989, to obtain a certified copy of the defendant's South Carolina conviction. Although refusing to vacate its orders, the trial court informed defense counsel that if, at the subsequent hearing, he "can persuade the court to modify [or] change ... orders, fine. I have no problems with that."

At the November 20, 1989 hearing, defense counsel produced a certified copy of the South Carolina conviction indicating that on September 26, 1986, less than one week after the commencement of the Connecticut revocation proceeding, the defendant had pleaded guilty to a South Carolina charge of possession of cocaine with intent to distribute, and that he had been sentenced to a term of five years imprisonment. The document also bore a South Carolina judge's handwritten notation of the following "special condition": "I would like this sentence to be concurrent with any revocation in Connecticut if possible." Upon examination of the document, the trial court found that its contents lent additional support to its prior determination that the defendant had "acted on his own to leave the jurisdiction of this state, and do whatever he considered himself doing, and therefore his absence here was of his own volition." The trial court further inferred from the presiding judge's notation respecting a "revocation in Connecticut" that the defendant had "left this jurisdiction ... knowing he had ... the revocation of probation here. And, then told the authorities in the State of South Carolina about it--how else would they know." ⁴ Over defense counsel's assertion that the defendant's "involuntary" detention in South Carolina prohibited the court from acting in the defendant's absence, the trial court terminated the proceeding, thus leaving its judgment revoking the defendant's probation undisturbed. ⁵

The defendant appealed from the judgment of revocation of probation to the Appellate Court. Concluding that the trial court abused its discretion in finding that the defendant voluntarily had waived his right of presence at the revocation proceeding, the Appellate Court reversed the judgment. See State v. Durkin, supra. We granted the state's petition for certification to appeal limited to the following question: "Did the Appellate Court correctly conclude that the trial court abused its discretion when it found that the defendant was voluntarily absent from his probation revocation hearing?" State v. Durkin, 217 Conn. 808, 584 A.2d 1192 (1991). We answer this question in the negative.

The due process clause of the fourteenth amendment to the United States constitution requires that certain minimum procedural safeguards be observed in the process of revoking the conditional liberty created by probation. Black v. Romano, 471 U.S. 606, 610, 105 S.Ct. 2254, 2257, 85 L.Ed.2d 636 (1985); see Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972). Among other things, due process entitles a probationer to a final revocation hearing under the conditions set forth in Morrissey v. Brewer, supra, which include an "opportunity to be heard in person and to present witnesses and documentary evidence...." (Emphasis added.) Id.; see Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1759, 36 L.Ed.2d 656 (1973); see also State v. Roberson, 165 Conn. 73, 81-82, 327 A.2d 556 (1973); State v. Crawford, 38 Conn.Sup. 472, 474-75, 451 A.2d 583 (1982); see generally General Statutes § 53a-32(a). ⁶ Since our courts are vested with the discretion to order a continuation of probation in lieu of a revocation; General Statutes § 53a-32(b); ⁷ see Practice Book § 943; a probationer must be afforded the opportunity at such a hearing to demonstrate "not only that he did not violate the conditions [of probation , but also that there was a justifiable excuse for any violation or that revocation is not the appropriate disposition." Black v. Romano, supra, 471 U.S. at 612, 105 S.Ct. at 2258; see United States v. Brown, 899 F.2d 189, 194 (2d Cir.1990). These procedural safeguards protect the probationer "against revocation of probation in a constitutionally unfair manner." Black v. Romano, supra, 471 U.S. at 613, 105 S.Ct. at 2259.

Nonetheless, like the constitutional right of presence at a criminal trial, ⁸ a probationer's due process rights in a final revocation proceeding may knowingly and voluntarily be waived. See Sekou v. Warden, 216 Conn. 678, 694, 583 A.2d 1277 (1990); State v. Simino, 200 Conn. 113, 128-29, 509 A.2d 1039 (1986). Waiver need not be express, but rather, may be implied from the totality of the circumstances, including the probationer's conduct. State v. Drakeford, 202 Conn. 75, 79, 519 A.2d 1194 (1987). If unaccompanied by a justification in the nature of " 'good cause' "; State v. Gonzalez, 205 Conn. 673, 688, 535 A.2d 345 (1987); see United States v. Sanchez, 790 F.2d 245, 249 (2d Cir.), cert. denied, 479 U.S. 989, 107 S.Ct. 584, 93 L.Ed.2d 587 (1986); a probationer's voluntary absence from a known, ongoing revocation proceeding " 'operates as a waiver' " of his rights therein, and " 'leaves the court free to proceed ... in a like manner and with like effect as if he were present.' " Taylor v. United States, 414 U.S. 17, 19, 94 S.Ct. 194, 195, 38 L.Ed.2d 174 (1973); see Practice Book § 968; cf. Talton v. Warden, 171 Conn. 378,...