State v. Hill

Decision Date12 June 2001
Docket Number(SC 16370)
Citation256 Conn. 412,773 A.2d 931
CourtConnecticut Supreme Court
PartiesSTATE OF CONNECTICUT v. HAROLD HILL

Borden, Katz, Palmer, Sullivan and Vertefeuille, Js.1 Dennis P. Harrigan, assistant public defender, with whom, on the brief, were Robert M. Berke, assistant public defender, and Eric J. Tinsley, certified legal intern, for the appellant (defendant).

Ronald G. Weller, assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Kevin Dunn, assistant state's attorney, for the appellee (state).

Opinion

SULLIVAN, J.

The issue presented in this case is whether the trial court properly found that the defendant, Harold Hill, had violated his probation and that his probation should be revoked, when the defendant claims that the violation was not wilful. The defendant argues that a probation violation must be wilful in order for the trial court to revoke probation. The state argues that there is no such wilfulness requirement, and that, in any event, the defendant's probation violation was wilful. We agree with the state that the defendant's conduct need not be wilful in order to constitute a probation violation. Accordingly, we affirm the judgment of the trial court.

The record reveals the following relevant facts. The defendant was charged with assault in the third degree in violation of General Statutes § 53a-61,2 in connection with a 1996 assault on his wife, Eileen Hill. The defendant and the state subsequently entered into a plea agreement whereby the state agreed to drop the assault charge, and the defendant pleaded guilty to a charge of failure to appear in the second degree in violation of General Statutes § 53a-173.3 The trial court sentenced the defendant to one year imprisonment, execution suspended, and eighteen months probation. As a special condition of probation, the court ordered that the defendant engage in no violence toward his wife.

In January, 1998, while still on probation, the defendant again assaulted his wife. As a result, he was charged with assault in the third degree and was incarcerated from January 9, 1998, to March 4, 1998. On March 4, 1998, the defendant pleaded guilty to the assault charges and to an additional charge of failure to appear in the second degree. The trial court terminated the defendant's probation on the 1996 charge and sentenced the defendant to two years imprisonment, execution suspended, and three years probation. As a special condition of probation, the court ordered that the defendant attend periodic meetings at an Alternative to Incarceration Center (center).

The defendant failed to attend several of the scheduled meetings, and his probation officer, Hilda Castillo, filed a motion for violation of probation and an application for an arrest warrant pursuant to General Statutes (Rev. to 1997) § 53a-32, as amended by Public Acts 1998, No. 98-130.4 On November 13, 1998, the trial court held an evidentiary hearing on the motion. At the violation phase of the hearing, Castillo and Jessie McCollough, a case manager for the Bridgeport center, testified for the state.

McCollough testified that he had been appointed as the defendant's case manager on March 5, 1998. On March 6, McCollough conducted an orientation with the defendant, at which time he advised the defendant of the conditions for participation in the program. Among other things, McCollough advised the defendant of his reporting schedule, which required him to report to the center on March 4, 5, 6, 10, 11, 12, 17, 18 and 19, 1998. McCollough also told the defendant that he must provide McCollough with a verification of employment and a urine sample.

McCollough testified that, after attending the March 6, 1998 meeting, the defendant failed to report to his next meeting on March 10, 1998. The defendant attended the next meeting on March 11, but failed to report to the next four meetings on March 12, 17, 18 and 19. In all, the defendant missed five out of his nine scheduled meetings. The defendant also failed to provide a urine sample or verification of employment. McCollough further testified that he had tried to modify the defendant's reporting schedule to accommodate his employment requirements, but that he told the defendant that attendance at the meetings was a condition of his probation, "and if he didn't have that condition he would be in jail and he wouldn't have [a] job."

Finally, McCollough testified that the center provides programs for anger management, domestic violence, conflict resolution, substance abuse and continuing education. He was not able to determine what treatment program would be appropriate for the defendant, however, because the defendant failed to attend the meetings at the center.

Castillo testified at the hearing that she had spoken with the defendant by telephone, and that the defendant had told her that his work schedule made it difficult for him to attend the center meetings.

The defendant also testified at the hearing. He admitted that he had missed the meetings. He claimed, however, that his job, which he had held for more than one and one-half years at the time of the hearing, required him to work six days a week and to travel from Massachusetts to Philadelphia, making it difficult for him to attend the meetings. He testified that he had met with a public defender, Dennis Harrigan, who had advised him to talk to Castillo about modifying the schedule. He had done so, and both Castillo and McCollough had told him that they would try to work something out.

Relying on the testimony given at the hearing, the trial court concluded that the defendant had violated the special condition of his probation by failing to report to the scheduled meetings. The court then conducted a sentencing phase hearing to determine whether the defendant's probation should be revoked.

Castillo testified at the sentencing phase hearing that, in her opinion, the defendant was not amenable to probation. Specifically, she stated that he was uncooperative and resistant; that he had an extensive criminal record, including prior convictions for assault, violations of probation, sale of narcotics, carrying a pistol without a permit, failure to appear, possession of narcotics, burglary and larceny; and that he had failed to meet the conditions of his current probation. In addition, Castillo testified that she had received a report that the defendant had assaulted his wife again, in September, 1998.5

On the basis of this testimony, the trial court found that the defendant had violated his probation and ordered it revoked. The court further rendered judgment that the original sentence of two years imprisonment be carried out. The defendant appealed from the judgment to the Appellate Court, and we granted the defendant's motion to transfer the appeal to this court pursuant to Practice Book § 65-2.6 At oral argument before this court, the parties requested that they be allowed to file supplemental briefs on the question of whether a probation violation must be wilful. This court granted the request and ordered supplemental briefs on the following questions: "In a revocation of probation proceeding under General Statutes § 53a-32, must the state prove that the violation was `wilful?' If so, what is the definition of `wilful' in this context?"

I

The defendant claims that the trial court improperly revoked his probation because his failure to attend the meetings at the center was not wilful, but resulted from his need to perform his job. He further claimed, for the first time at oral argument before this court, that he believed that failing to perform his job and thereby risking the loss of his job, itself, would have been a violation of probation. We are not persuaded.

Whether wilfulness is an element of § 53a-32 is a matter of statutory interpretation. "Statutory interpretation is a matter of law over which this court's review is plenary.... In construing statutes, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Internal quotation marks omitted.) Doyle v. Metropolitan Property & Casualty Ins. Co., 252 Conn. 79, 84, 743 A.2d 156 (1999).

"When the commission of an offense defined in [the Penal Code], or some element of an offense, requires a particular mental state, such mental state is ordinarily designated in the statute defining the offense by use of the terms `intentionally', `knowingly', `recklessly' or `criminal negligence', or by use of terms, such as `with intent to defraud' and `knowing it to be false', describing a specific kind of intent or knowledge...." General Statutes § 53a-5; see also State v. Denby, 235 Conn. 477, 482, 668 A.2d 682 (1995) ("[o]rdinarily, the mental state required by a statute is expressly designated"). Generally, the absence of any such requirement demonstrates that the legislature did not intend to make it an element of the crime. See id. (absence of requirement that defendant knowingly sold narcotics within prohibited school zone demonstrates that legislature did not intend to make knowledge element of crime).

Although the legislature has made wilfulness an element of certain crimes; see, e.g., General Statutes § 53a-1727; General Statutes § 53-21;8 it is not expressly required under § 53a-32. Accordingly, the language of the statute demonstrates that the legislature did not intend to make wilfulness an element of a probation violation. See State v. Denby, supra, 235 Conn. 482.

Furthermore, we can perceive no public policy that would be served by such a requirement. If a...

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