State v. Kelley

• Decision Date: 29 March 2016
• Docket Number: No. 36992.,36992.
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Tyrone Lawrence KELLEY.

164 Conn.App. 232

137 A.3d 822

STATE of Connecticut

v.Tyrone Lawrence KELLEY.

No. 36992.

Appellate Court of Connecticut.

Argued Jan. 19, 2016.

Decided March 29, 2016.

Robert E. Byron, assigned counsel, for the appellant (defendant).

Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, Maxine V. Wilensky, senior assistant state's attorney, and LisaMaria Proscino, special deputy assistant state's attorney, for the appellee (state).

GRUENDEL, ALVORD and WEST, Js.^*

GRUENDEL, J.

The defendant, Tyrone Lawrence Kelley, appeals from the judgment of the trial court revoking his probation and committing him to the custody of the commissioner of correction for five years. His principal claim is that the court lacked subject matter jurisdiction over the probation revocation proceeding. The defendant also argues, in the alternative, that the court abused its discretion in sentencing him. We affirm the judgment of the trial court.

In 2004, the defendant was convicted of possession of narcotics with the intent to sell in violation of General Statutes § 21a–277 (a). On November 19, 2004, the court sentenced the defendant to a term of nine years incarceration, execution suspended after four years, with five years of probation. The conditions of his probation required, inter alia, that the defendant “not violate any criminal law of the United States, this state or any other state or territory.”

On September 19, 2008, the defendant's probationary period commenced upon his release from the custody of the Department of Correction. Approximately thirteen months later, the defendant on October 26, 2009, was arrested and charged with, inter alia, possession of a controlled substance in violation of General Statutes (Rev. to 2009) § 21a–279 (c). In response, his probation officer obtained an arrest warrant for the defendant's violation of the terms of his probation.¹ While those charges were pending, the defendant again was arrested following an incident that transpired on August 7, 2011, and was charged with robbery in the first degree in violation of General Statutes § 53a–134 (a)(2), carrying a pistol without a permit in violation of General Statutes § 29–35, criminal possession of a firearm in violation of General Statutes § 53a–217 (a)(1), and interfering with a police officer in violation of General Statutes § 53a–167a (a).

On March 24, 2014, the state filed a long form information alleging that the defendant breached the terms of his probation in violation of General Statutes § 53a–32, due to his October 26, 2009, and August 7, 2011 arrests. The parties thereafter stipulated to the consolidation of the defendant's probation revocation proceeding with the May, 2014 trial on his criminal charges stemming from the events of August 7, 2011. During that trial, the state presented testimonial and documentary evidence regarding the offenses allegedly committed on that date. In addition, the state submitted evidence outside of the presence of the jury regarding the defendant's October 26, 2009 arrest for possession of a controlled substance.

When the trial concluded, the court heard argument from the parties on the violation of probation allegations. At that time, defense counsel conceded, “I do not feel that I can honestly represent to the court that there [is] really an argument as to the violation of probation [on the] possession of drugs” charge. The court thereafter found, by a preponderance of the evidence, that the defendant violated the terms of his probation in that he “did knowingly possess a quantity of a controlled substance in violation of § 21–279(c).” The court further found that the defendant also violated those terms by “committing the crimes of robbery in the first degree, interfering with a police officer, carrying a pistol without a permit, and possession of a weapon by a convicted felon all in violation of the General Statutes.” In the dispositional phase of the violation of probation proceeding, the court found that “the beneficial aspects of rehabilitation are no longer being served.” The court therefore revoked the defendant's probation and sentenced him to a term of five years incarceration. From that judgment, the defendant now appeals.

I

The defendant first claims that the trial court lacked subject matter jurisdiction over the revocation of probation proceeding. Specifically, he posits that his probationary period concluded on September 18, 2013, five years after his release from incarceration. He thus argues that the court lacked jurisdiction over him at the time of the May, 2014 probation revocation proceeding. We do not agree.

Although the defendant did not raise this claim before the trial court, it nonetheless is reviewable, as it implicates the subject matter jurisdiction of that court. See State v. Velky, 263 Conn. 602, 605 n. 4, 821 A.2d 752 (2003) (subject matter jurisdiction may be raised for first time on appeal). “Questions regarding subject matter jurisdiction are purely legal in nature and subject to plenary review.” (Internal quotation marks omitted.) State v. Ramos, 306 Conn. 125, 133, 49 A.3d 197 (2012).

“Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it.... Jurisdiction involves the power in a court to hear and determine the cause of action presented to it.... The Superior Court hearing a criminal matter acquires subject matter jurisdiction from its authority as a constitutional court of unlimited jurisdiction.... The Superior Court's authority in a criminal case becomes established by the proper presentment of the information ... which is essential to initiate a criminal proceeding.... [U]pon the return to the Superior Court of the indictment ... against the accused, it obtained the sole and original jurisdiction of the charge therein made.... There is no doubt that the court may order probation and take it away.... Because [r]evocation is a continuing consequence of the original conviction from which probation was granted ... and the inherent authority to convict and sentence a defendant flows from the authority to adjudicate a criminal cause of action, the subject matter jurisdiction over a probation revocation proceeding derives from the original presentment of the information.” (Citations omitted; internal quotation marks omitted.) State v. Carey, 222 Conn. 299, 304–306, 610 A.2d 1147 (1992).

At its essence, the defendant's claim is that although his arrest and arraignment before the Superior Court were timely, the failure to conduct his probation revocation proceeding prior to September 18, 2013, deprived the court of jurisdiction over that matter. That contention is contrary to the plain language of General Statutes § 53a–31 (b), which provides in relevant part that “[t]he issuance of a warrant or notice to appear, or an arraignment following an arrest without a warrant, for violation [of probation] pursuant to section 53a–32 shall interrupt the period of the sentence until a final determination as to the violation has been made by the court.” See also State v. Egan, 9 Conn.App. 59, 73 n. 5, 514 A.2d 394 (“[w]here ... the revocation [of probation proceeding] is initiated by arrest warrant, the running of the sentence of probation is tolled”), cert. denied, 201 Conn. 811, 516 A.2d 886 (1986). Accordingly, the December 29, 2009 issuance of his arrest warrant for violating the terms of his probation tolled the defendant's probationary period.²

Moreover, we note that this court previously has rejected a claim akin to that advanced by the defendant in this appeal. In State v. Mack, 55 Conn.App. 232, 234, 738 A.2d 733 (1999), the defendant was arrested and charged with various narcotics offenses while on probation. Months after his probationary period concluded, the defendant entered a guilty plea, and his probation officer thereafter filed with the court a motion to commence a violation of probation proceeding. Id. Following the revocation of his probation by the trial court, the defendant appealed to this court, claiming that “the trial court was without subject matter jurisdiction to hear and determine the motion for revocation of probation because he was not on probation at the time of the disposition hearing.” Id. This court concluded otherwise, holding that “the trial court had subject matter jurisdiction over the defendant's probation revocation.” Id., at 236, 738 A.2d 733. That precedent compels a similar result in the present case.

The defendant nevertheless submits, as an ancillary claim, that the legislature's amendment of § 53a–32 (c) in 2008 also deprived the court of subject matter jurisdiction. See Public Acts 2008, No. 08–102, § 7 (P.A. 08–102). As a result of that amendment, subsection (c) of § 53a–32 provides in relevant part that when a defendant has been arrested for violating the conditions of probation, “[u]nless good cause is shown, a charge of violation of any of the conditions of probation or conditional discharge shall be disposed of or scheduled for a hearing not later than one hundred twenty days after the defendant is arraigned on such charge.” The defendant thus claims that because his violation of probation proceeding was neither disposed of nor scheduled for a hearing within 120 days of his arraignment, the trial court “lost any and all jurisdiction over any aspect of his probation.” For two distinct reasons, we disagree.

First, we are not persuaded that the 120 day limitation provided in § 53a–32 (c) implicates subject matter jurisdiction, as the defendant maintains. The existence of the “good cause” exception specified in § 53a–32 (c) undermines that contention, as subject matter jurisdiction is a prerequisite to adjudication that “cannot be waived by anyone, including [the] court.” Simms v. Warden, 229 Conn. 178, 185, 640 A.2d 601 (1994). The trial court's ability to waive the 120 day limitation for good cause...