State v. McElveen

• Citation: 802 A.2d 74,261 Conn. 198
• Decision Date: 06 August 2002
• Docket Number: (SC 16558)
• Court: Supreme Court of Connecticut
• Parties: STATE OF CONNECTICUT v. DEREK MCELVEEN

261 Conn. 198

802 A.2d 74

STATE OF CONNECTICUT v. DEREK MCELVEEN

(SC 16558)

Supreme Court of Connecticut.

Argued February 11, 2002

Officially released August 6, 2002

Sullivan, C. J., and Borden, Norcott, Katz, Palmer, Vertefeuille and Zarella, Js. Lauren Weisfeld, assistant public defender, for the appellant (defendant).

Michele C. Lukban, assistant state's attorney, with whom, on the brief, were Eugene Callahan, state's attorney, and Robert Katz, senior assistant state's attorney, for the appellee (state).

Opinion

KATZ, J.

The defendant, Derek McElveen, appeals from the judgment of the trial court revoking his probation pursuant to General Statutes (Rev. to 1999) § 53a-32¹ and sentencing him to serve six months of a presuspended one year sentence on an underlying criminal conviction. The dispositive issue on appeal is whether the defendant's claim is moot. That issue requires that we resolve two questions. First, we must determine whether the completion of the defendant's sentence for the violation of probation renders moot his appeal from the judgment of the trial court revoking his probation.² We conclude that it does not. Second, we must determine whether the fact that the defendant ultimately pleaded guilty to one count of attempted robbery in the third degree in violation of General Statutes §§ 53a-49 and 53a-136, stemming from the same criminal conduct that gave rise to the violation of his probation, renders moot the defendant's appeal from the judgment of the trial court revoking his probation.³ We conclude that it does. Accordingly, we dismiss the defendant's appeal.

The following undisputed facts and procedural history are pertinent to this appeal. On August 5, 1998, the defendant pleaded guilty to two counts of failure to appear in the second degree in violation of General Statutes (Rev. to 1997) § 53a-173.⁴ The trial court, Rodriguez, J., sentenced the defendant to two concurrent terms of incarceration for one year, execution suspended, and two years of probation. The terms of the defendant's probation included the standard condition that the defendant "not violate any criminal law of the United States, this state or any other state or territory." In addition, the court imposed two special conditions: (1) restitution for a broken window; and (2) fifty hours of community service in lieu of fees and cost.

On August 26, 1998, the defendant was arrested for allegedly attempting to rob a food delivery person who was in the process of making a delivery at an apartment building in Norwalk. Thereafter, the defendant was charged with robbery in the first degree in violation of General Statutes § 53a-134⁵ and burglary in the second degree in violation of General Statutes § 53a-102.⁶

On the basis of this alleged criminal conduct, the state charged the defendant with violation of his probation. A probation revocation hearing was conducted on April 15, 1999. At the hearing, the alleged victim, Ling Lee, testified that the defendant had entered Lee's car without his permission while Lee was inside an apartment building in Norwalk making a food delivery. Lee further testified that when he heard his car alarm sound, he returned to the vehicle to confront the defendant, who first tried to rob him, and then chased Lee as Lee fled. Shortly thereafter, the police arrived and Lee identified the defendant as the alleged perpetrator.

The trial court found that the defendant had violated the conditions of his probation. On July 7, 1999, the court sentenced the defendant to serve six months of the two, concurrent one year periods of incarceration that previously had been imposed and suspended for his conviction of failure to appear in the second degree, which the defendant immediately began to serve. On October 28, 1999, the defendant appealed from the judgment of the trial court to the Appellate Court, claiming that the trial court improperly found that the state had presented sufficient evidence to prove that he had violated the conditions of his probation. We then transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c). The defendant completed the sentence imposed for the violation of his probation in January, 2000, during the pendency of this appeal. See footnote 2 of this opinion. Additionally, the defendant pleaded guilty to one count of attempted robbery in the third degree. See footnote 3 of this opinion. Additional facts will be set forth as necessary.

I

Before we can address the merits of the defendant's claim, we first must determine whether the expiration of the defendant's sentence for the violation of probation rendered his appeal moot. See Ayala v. Smith, 236 Conn. 89, 93, 671 A.2d 345 (1996) ("[m]ootness implicates [this] court's subject matter jurisdiction and is thus a threshold matter for us to resolve"). The doctrine of mootness is rooted in the same policy interests as the doctrine of standing, namely, to assure the vigorous presentation of arguments concerning the matter at issue. See H. Monaghan, "Constitutional Adjudication: The Who and When," 82 Yale L.J. 1363, 1384 (1973) (describing mootness as "the doctrine of standing set in a time frame: [t]he requisite personal interest that must exist at the commencement of the litigation [standing] must continue throughout its existence [mootness]"). "This court recently reiterated that the standing doctrine is designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented." (Internal quotation marks omitted.) Loisel v. Rowe, 233 Conn. 370, 379, 660 A.2d 323 (1995). "Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant." (Internal quotation marks omitted.) Board of Education v. Naugatuck, 257 Conn. 409, 416, 778 A.2d 862 (2001).

The first factor relevant to a determination of justiciability—the requirement of an actual controversy—is premised upon the notion that courts are called upon to determine existing controversies, and thus may not be used as a vehicle to obtain advisory judicial opinions on points of law. Pamela B. v. Ment, 244 Conn. 296, 323, 709 A.2d 1089 (1998). Moreover, "[a]n actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal.. . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot." (Internal quotation marks omitted.) Giaimo v. New Haven, 257 Conn. 481, 492-93, 778 A.2d 33 (2001).

This court has recognized, however, that a case does not necessarily become moot by virtue of the fact that, as in the present case, due to a change in circumstances, relief from the actual injury is unavailable. We have determined that a controversy continues to exist, affording the court jurisdiction, if the actual injury suffered by the litigant potentially gives rise to a collateral injury from which the court can grant relief. Although the facts and circumstances of each case raising this issue have differed, a common theme emerges upon review of those cases: whether the litigant demonstrated a basis upon which we could conclude that, under the circumstances, prejudicial collateral consequences are reasonably possible as a result of the alleged impropriety challenged on the appeal. We now turn to those cases.

In Statewide Grievance Committee v. Whitney, 227 Conn. 829, 837-38 n.13, 633 A.2d 296 (1993), we concluded that the defendant's appeal from an order of suspension from the practice of law was not rendered moot by the expiration of that suspension prior to oral argument in this court. Relying on several factors— the availability to the public of records pertaining to grievance complaints, the publication of attorney suspensions in the Connecticut Law Journal, and the consideration of prior misconduct of an attorney in subsequent disciplinary proceedings, which reasonably were likely to occur based upon the defendant's prior disciplinary citation—we determined that collateral consequences prejudicial to the defendant's interests existed, allowing the court to retain jurisdiction. Id.

In Housing Authority v. Lamothe, 225 Conn. 757, 765, 627 A.2d 367 (1993), we concluded that the defendant's appeal from a judgment of eviction in a summary process action was not rendered moot when she voluntarily had vacated the premises in order to have sufficient time to relocate herself and her family satisfactorily. The plaintiff had conceded that eviction from housing authority property was one of several significant factors that the housing authority would consider in deciding whether to rent to a prospective tenant. Id. Therefore, we recognized that, if the appeal were dismissed because of the defendant's decision to vacate the premises, the judgment against her in the underlying summary process action could have a negative impact upon her eligibility for low income subsidized housing in the future. Id. Although the judgment of eviction would not be the only consideration on which the housing authority might rely in deciding against the defendant in any future application, we concluded that the existence of other criteria did not negate the housing authority's ability to rely on the judgment of eviction. Id. Accordingly, we held that this collateral consequence was sufficient to defeat the plaintiff's claim of mootness. Id., 766.

In State v. Smith, 207 Conn. 152, 153, 540 A.2d 679 (1988), the...