State v. Guckian, s. 9539

• Citation: 27 Conn.App. 225,605 A.2d 874
• Decision Date: 31 March 1992
• Docket Number: Nos. 9539,9540,s. 9539
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. William GUCKIAN.

Page 874

605 A.2d 874

27 Conn.App. 225

STATE of Connecticut v. William GUCKIAN.

Nos. 9539, 9540.

Appellate Court of Connecticut.

Argued Jan. 15, 1992.

Decided March 31, 1992.

[27 Conn.App. 226] Jack W. Fischer, Deputy Asst. State's Atty., with whom, on the brief, were Eugene

J. Callahan, State's Atty., Michael E. O'Hare, former Deputy [27 Conn.App. 227] Assistant State's Atty., and Robert Katz, Supervisory Asst. State's Atty., for appellant (state)

Lawrence D. Church, Norwalk, with whom, on the brief, was Cheryl Brienza Cook, New Haven, for appellee (defendant).

Before DUPONT, C.J., and DALY, EDWARD Y. O'CONNELL, NORCOTT, FOTI, LAVERY, LANDAU, HEIMAN and FREDERICK A. FREEDMAN, JJ.

NORCOTT, Judge.

The state appeals, with the trial court's permission, from the judgment granting the defendant credit toward his prison sentence. The credit was based on the court's determination that the defendant was eligible for state sponsored alcoholism treatment, after he pleaded guilty to operating a motor vehicle while his license was under suspension in violation of General Statutes § 14-215(c) and violating his probation contrary to General Statutes § 53a-32.

The state claims the trial court (1) improperly found that a violation of General Statutes § 14-215(c) is a crime within the meaning of Public Acts 1989, No. 89-390 (the Act), (2) made factual determinations that are improper under the Act, (3) failed to sentence the defendant as mandated by General Statutes § 14-215(c), and (4) unlawfully sentenced the defendant for violating his probation.

A panel of three judges of this court initially heard arguments in this case in November, 1991. Thereafter, we requested, sua sponte, further argument en banc on the issue of whether a violation of General Statutes § 14-215(c) constitutes a crime for purposes of the Act. We now affirm the judgment of the trial court in part, and reverse it in part.

The following facts are relevant to this appeal. On November 28, 1989, the defendant appeared before the trial court, McGrath, J., and pleaded guilty to charges of operating a motor vehicle while under the influence of liquor or drugs in violation of General Statutes § 14-227a(a), and reckless driving in violation of General Statutes § 14-222. He was sentenced to concurrent terms of six months imprisonment on each count, execution suspended, and placed on probation for one year. The defendant's right to operate a motor vehicle also was suspended for one year pursuant to General Statutes § 14-227a(h).

In March, 1990, the defendant was charged with operating a motor vehicle while his license was under suspension in violation of General Statutes § 14-215(c). ¹ As a result, he was charged in April, 1990, with violation of his probation under the provisions of General Statutes § 53a-32. He was released from custody on a promise to appear in court, subject to the condition that he cooperate with a substance abuse counseling program known as Neon in obtaining a drug and alcohol evaluation.

Counselors at Neon referred the defendant to another program, the Meridian Center, where it was determined that he needed residential treatment. As a result, the defendant was referred to the Berkshire Woods Chemical Dependence Treatment Center in Newtown, which he voluntarily entered in May, 1990, as a patient in its alcohol abuse program. After successfully completing the program, he was discharged on August 3, 1990.

On August 16, 1990, the defendant returned to court, where the trial court, Bingham, J., granted his motion for an examination pursuant to § 3 of the Act ² to On August 23, 1990, the court heard testimony about the defendant's evaluations from Kenneth Hodge, a substance abuse counselor at Neon. Hodge testified that the defendant is an alcoholic, and that he needed and would benefit from further treatment. When the defendant requested credit toward his sentence for the violations of General Statutes §§ 14-215(c) and 53a-32 under § 9 of the Act ³ for the time spent in residential treatment at Berkshire Woods, the state renewed its objections, which the trial court overruled.

                determine[27 Conn.App. 229]  if he was drug or alcohol dependent with respect to both the probation violation and operating under suspension charges.   The state objected, and its exception was duly noted
                

The state then raised further objections when the court indicated it construed § 9 as authorizing the granting of credit. The state argued that § 9(e) does not permit the court to grant credit toward completion of the defendant's mandatory minimum sentence. The state also argued that § 9(c) permits the court to order treatment as a condition of probation, but does not permit the court to order treatment in lieu of incarceration.

Before ruling on the state's objections, the court put the defendant to plea. He thereupon pleaded guilty to operating a motor vehicle while his license was under suspension and admitted having violated the terms of his probation. After further argument from the parties, the court ruled that the Act was applicable to the defendant's case. ⁴ The court found that the defendant had been treated in a licensed, state-run program between May, 1990 After canvassing the defendant, the court accepted his guilty plea to the operating under suspension charge and imposed sentence. The defendant was fined $500 and given a six month prison term, execution suspended after thirty days, with probation for eighteen months. The court then granted the defendant credit for thirty days based on the time spent at Berkshire Woods. After another canvass to determine if the defendant had voluntarily admitted violating his probation, the court opened and vacated the judgment by which the probation was imposed. It then sentenced the defendant to six months imprisonment, execution suspended, and eighteen months probation. No mittimus was issued.

                when he was admitted, and August, 1990, when he was discharged.   The court then entered findings, pursuant to § 9(b), that the defendant was alcohol dependent at the time of the crime, that there was a relationship between the dependency and the crime, and that the defendant needed and was likely to benefit from treatment.   The court also found that the defendant was eligible for treatment under § 9 and that he met the criteria for probation
                

On November 30, 1990, the state moved for articulation of the trial court's rulings, and on May 15, 1991, the trial court issued an articulation. This appeal followed.

I

WHETHER OPERATING UNDER SUSPENSION IS A CRIME UNDER GENERAL STATUTES §§ 17a-648

THROUGH 17a-658

The state first claims the trial court improperly found the defendant eligible for state sponsored alcoholism treatment because only people charged with or convicted of a "crime" are within the scope of the Act's coverage. The state argues that under State v. Brown, 22 Conn.App. 108, 575 A.2d 699, cert. denied, 216 Conn. 811, 580 A.2d 61 (1990), and State v. Kluttz, 9 Conn.App. 686, 521 A.2d 178 (1987), a violation of General Statutes § 14-215(c) is not a "crime" but a "motor vehicle violation" within the meaning of our penal code's definitional scheme, General Statutes §§ 53a-24 ⁵ through 53a-27.

We begin with a brief discussion of the pertinent case law as a basis of our analysis. In State v. Anonymous (1980-5), 36 Conn.Sup. 527, 528, 416 A.2d 168 (1980), the Appellate Session of the Superior Court held that a violation of General Statutes § 14-227a is a "crime." The court noted that although our statutes do not define "motor vehicle violation," a "violation" is defined as "[a]n offense, for which the only sentence authorized is a fine ... unless expressly designated an infraction. General Statutes § 53a-27(a)." (Internal quotation marks omitted.) Id., at 530, 416 A.2d 168. The court reasoned that a violation of § 14-227a is a "crime" because it could not qualify as a "motor vehicle violation," since it is punishable by imprisonment as well as a fine.

Seven years later in State v. Kluttz, supra, this court determined that "motor vehicle violations" are not "crimes" under our penal code's definitional statutes because "offense," as defined in General Statutes § 53a-24(a), excludes "motor vehicle violations." Id., 692-93. We held that negligent homicide with a motor vehicle in violation of General Statutes § 14-222(a) is not an "offense" or a "crime" within the meaning of General Statutes tain purposes as noncriminal depends, not on that categorization, but on the functions and purposes of the doctrine itself.' " (Citation omitted.) Id., at 111-12, 575 A.2d 699.

                §   53a-24(a), but that it is an offense for purposes of our lesser included offense doctrine.  State v. Brown, supra, 22 Conn.App. at 111, 575 A.2d 699.  "We reasoned that '[w]hat may or may not be a criminal offense for purposes of a particular statutory categorization is not necessarily determinative of whether it is a criminal offense for purposes of the lesser included offense doctrine....  Whether the lesser included offense doctrine should apply to include a transgression of the law which the legislature has categorized for cer
                

More recently in State v. Brown, supra, we held that a violation of General Statutes § 14-227a is a violation of the criminal law for purposes of a defendant's conditions of probation. Id., at 112, 575 A.2d 699. As in State v. Kluttz, supra, our analysis focused not on the legislature's categorization of the law, but on the functions and purposes of the matter at issue, which was probation. We found that the central concerns of probation are rehabilitation of the probationer and the safety of the community, both of which were addressed as part of the defendant's probation. Because the law that was violated, General Statutes § 14-227a, proscribed the type of conduct contemplated by the probation order, we held that General Statutes § 14-227a constituted a "criminal law" for purposes of the defendant's...