State v. Johnson, 22098.
| Decision Date | 25 March 2003 |
| Docket Number | No. 22098.,22098. |
| Citation | 75 Conn.App. 643,817 A.2d 708 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Don M. JOHNSON. |
Bruce R. Lockwood, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Eugene Calistro, assistant state's attorney, for the appellee (state).
The defendant, Don M. Johnson, appeals from the judgment of the trial court revoking his probation and imposing a three year term of incarceration. On appeal, the defendant claims that the court improperly (1) determined that the office of adult probation had the authority, pursuant to General Statutes § 53a-30 (b), to include a curfew as a condition of his probation without a court hearing and a showing of good cause, (2) found that there was sufficient evidence to establish that he had violated his probation and (3) revoked his probation and ordered him to serve the entire three year suspended portion of his sentence.1 Additionally, in his supplemental brief, the defendant also claims that he was entitled to refuse to sign the conditions of probation form without penalty and that the office of adult probation had no authority to eliminate the specific court-ordered condition of probation, i.e., that he possess no weapons.2 We affirm the judgment of the trial court finding the defendant to be in violation of his probation, but we set aside the sentence imposed and remand the case for resentencing on the basis of the irregularity found in the record, of which the trial court was not made aware.
The following facts and procedural history are relevant to our resolution of the defendant's appeal. The defendant originally was sentenced to five years incarceration, execution suspended after two years, with three years probation, following his guilty plea to carrying a pistol without a permit in violation of General Statutes § 29-35. The court attached two special conditions to the defendant's probation period, namely, that he have no contact with codefendants William Denby and Dennis Williams and that he possess no weapons during the period of his probation. Significantly, there was no court-ordered special condition that prohibited the use or possession of narcotics or controlled drugs, although later documents that the defendant was requested to sign erroneously included that prohibition as a court-ordered special condition.3
On September 20, 2000, the defendant was interviewed by Bail Commissioner Teresa Dallas while imprisoned and asked to review and sign a supervision notification form and a conditions of probation form, both of which he refused to sign, stating that he was "not going through all this probation stuff." The defendant was released from prison on October 13, 2000, and began serving the probationary portion of his sentence. On October 24, 2000, the defendant was seen by Probation Officer Michael Fernandez of the intake, assessment and referral unit, where the defendant, again, refused to sign the conditions of probation form. On October 30, 2000, Probation Officer Thomas W. Pleckaitis was assigned as the defendant's probation supervisor, and he left a letter for the defendant at what Pleckaitis believed to be the defendant's home requesting that he report to Pleckaitis the next day. When the defendant did not report to Pleckaitis on October 31, 2000, Pleckaitis issued a violation notice to the defendant, which stated, in part, that if the defendant failed to report to the office of adult probation on November 6, 2000, a warrant would be issued for his arrest. The defendant and Pleckaitis, however, met at the New Haven office of adult probation on November 1 or 2, 2000, where Pleckaitis advised the defendant that he was being placed on intensive supervision with special conditions.
Along with the special conditions preprinted on the intensive supervision form, Pleckaitis imposed three additional handwritten conditions on the defendant, requiring him to adhere to a 7 p.m. to 7 a.m. curfew, to stay out of bars and nightclubs and to refrain from possessing pagers or beepers. The defendant told Pleckaitis that he would not comply with the curfew condition and refused to sign the intensive supervision conditions form, offering no explanation for his refusal. Pleckaitis advised the defendant that his refusal to comply with the curfew placed him in violation of his probation, and Pleckaitis gave the defendant one week to reconsider his position. Pleckaitis and the defendant met again on November 7, 2000, and the defendant, again, told Pleckaitis that he would not comply with the curfew condition. Pleckaitis informed the defendant that he was now in violation and that he would be pursuing a warrant for his arrest. Pleckaitis also testified that he informed the defendant that he would be conducting a home visit that would result in a violation if the defendant were not at home during the time of his curfew.
On or about November 8, 2000, Pleckaitis filed a violation of probation motion, form JD CR 59, and an arrest warrant application, which were denied by the court. Following this denial, Pleckaitis, in the company of a police officer, on November 10, 2000, went to the defendant's apartment at approximately 8:30 p.m. Pleckaitis knocked loudly on the door, which went unanswered. He also reported that he heard no noise and saw no lights illuminating from the apartment. On November 13, 2000, Pleckaitis refiled the violation motion and prepared another arrest warrant application, which was approved on November 17, 2000, after which the defendant was arrested. The reasons for seeking a violation of probation for the defendant, as stated in the violation motion, were: "Defendant refuses to comply with the Conditions of Probation in general and a 7 p.m. curfew imposed by the Probation Officer."
At his arraignment, the defendant denied the alleged probation violation, and an evidentiary hearing commenced on May 3, 2001. On May 4, 2001, the court granted the state's motion for a violation of probation, finding that the state had established said violation. The court stated that "the state [had] established to [the court's] satisfaction [by] a preponderance of the evidence that in fact by failing to oblige the special condition of the curfew, both by stating orally that he would not obey the curfew and, secondly, the proof established on November 10 that he was not in fact at his residence ... after the hours of the curfew, 7 p.m. to 7 a.m., that in fact he is in violation of his probation." Taking into consideration the defendant's refusal to abide by the curfew and his refusal to sign the conditions of probation form, the court ordered the defendant to serve the entire unexecuted portion of his sentence, which amounted to three years. The defendant now appeals from the judgment of the trial court. Additional facts will be recited where necessary.
The defendant first claims that the court improperly determined that the office of adult probation had the authority, pursuant to § 53a-30 (b), to include, as a condition of probation, a curfew without a court hearing and a showing of good cause. He argues that General Statutes § 53a-30 (c) requires a hearing and a showing of good cause before any additions or enlargements can be made to his conditions of probation. In the alternative, the defendant argues that even if Pleckaitis had the authority to add this condition, he did not have the authority to add it at the start of the defendant's probation because it was not included as part of the defendant's plea agreement, which the court accepted. We do not agree.
Initially, we set forth our standard of review where the essence of the defendant's claim involves the proper interpretation of § 53a-30 (b) and (c) and the authority the statute bestows on the office of adult probation. "Statutory construction presents a question of law." State v. Marro, 68 Conn.App. 849, 855, 795 A.2d 555 (2002). Generally, (Internal quotation marks omitted.) State v. Parra, 251 Conn. 617, 622, 741 A.2d 902 (1999).
General Statutes (Rev. to 1997) § 53a-30 (b) provides: "When a defendant has been sentenced to a period of probation, the Office of Adult Probation may require that the defendant comply with any or all conditions which the court could have imposed under subsection (a) which are not inconsistent with any condition actually imposed by the court." General Statutes § 53a-30 (c) provides:
The defendant claims that the office of adult probation cannot add conditions under § 53a-30 (b) without a hearing and a showing of good cause because to do so would give that office more authority than that given to the court. We find no merit to this claim.
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