State v. Miller

• Decision Date: 13 July 2004
• Docket Number: (AC 23769)
• Citation: 851 A.2d 367,83 Conn. App. 789
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. MICHAEL MILLER

83 Conn. App. 789

851 A.2d 367

STATE OF CONNECTICUT v. MICHAEL MILLER

(AC 23769)

Court of Appeals of Connecticut.

Argued February 18, 2004.

Officially released July 13, 2004.

Lavery, C. J., and Flynn and McLachlan, Js.

Robert F. Field, public defender, for the appellant (defendant).

Ronald G. Weller, assistant state's attorney, with whom, on the brief, was Walter D. Flanagan, state's attorney, for the appellee (state).

Opinion

LAVERY, C. J.

The defendant, Michael Miller, appeals from the judgment of the trial court revoking his probation and committing him to the custody of the commissioner of correction for a period of 120 days. On appeal, the defendant claims that there was insufficient evidence for the court to have found that he violated the terms of his probation and that the court improperly found that the beneficial purposes of probation were no longer being met. The defendant also claims that the court improperly denied his motion to dismiss. We affirm the judgment of the trial court.

The record reveals the following relevant facts. On November 10, 1999, the defendant pleaded guilty to violating a protective order in violation of General Statutes § 53a-110b, now General Statutes § 53a-223. The court, Carroll, J., sentenced the defendant to the custody of the commissioner of correction for a period of six months, execution suspended, and one year probation. In addition to the standard conditions of probation, the court also ordered that the defendant engage in no assaultive behavior.

After being sentenced, the defendant reported to the office of adult probation, where he met with Heather Adams, a probation officer. There, Adams reviewed a form with the defendant that listed the conditions of his probation. Included in the defendant's conditions of probation were that he report to his probation officer as directed and keep his probation officer informed of his whereabouts, including where he resided and where he was employed. After being informed of the conditions of his probation, the defendant signed the form, indicating that he understood the conditions of his probation and that he would abide by them.

The defendant was then assigned Chris Langrock as his probation officer. On December 22, 1999, Langrock met with the defendant to obtain certain information, including the defendant's telephone number, place of residence and place of employment. The defendant provided Langrock with two addresses in Danbury for his place of residence and identified Home Health Care in Brookfield as his place of employment. Following the meeting, the defendant was instructed to report to Langrock on January 18, 2000.

Langrock subsequently attempted to verify the information that the defendant provided to him. Langrock attempted to call the defendant at both addresses he provided for his place of residence. In each instance, Langrock was informed that the defendant was no longer residing there. Langrock was unable to call Home Health Care in Brookfield because he was unable to find a business under that name in Brookfield. Langrock then mailed a letter to each address that the defendant provided as his place of residence. Each letter was returned to Langrock from the post office as undeliverable because the defendant did not reside at the address.

The defendant failed to report to his scheduled meeting with Langrock on January 18, 2000, whereupon Langrock began to prepare a warrant for the defendant's arrest for violating the terms of his probation. On February 7, 2000, the defendant called Langrock to inform him that he had moved and gave Langrock his new address and telephone number, which Langrock noted in the defendant's file. Langrock then informed the defendant that he was in the process of obtaining an arrest warrant for the defendant for violating the terms of his probation. The court, Resha, J., signed the warrant for the defendant's arrest on February 9, 2000. The office of adult probation did not hear from the defendant again until October 21, 2002, when he turned himself in on the warrant for his arrest.

Following a hearing on the defendant's violation of probation, the court, Fischer, J., found the defendant in violation of probation and sentenced him to the custody of the commissioner of correction for a period of 120 days. This appeal followed.

I

The defendant first claims that there was insufficient evidence for the court to have found that he violated the terms of his probation and that the court improperly found that the beneficial purposes of probation were no longer being met. We disagree.

"A revocation of probation hearing has two distinct components and two purposes. A factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made. If a violation is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served.... Since there are two distinct components of the revocation hearing, our standard of review differs depending on which part of the hearing we are reviewing....

"A trial court initially makes a factual determination of whether a condition of probation has been violated. In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence.... Our review is limited to whether such a finding was clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court's ruling....

"The standard of review of the trial court's decision at the sentencing phase of the revocation of probation hearing is whether the trial court exercised its discretion properly by reinstating the original sentence and ordering incarceration. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling.... Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done." (Internal quotation marks omitted.) State v. Faraday, 268 Conn. 174, 185-86, 842 A.2d 567 (2004).

We will first address whether the court's finding that the defendant violated the terms of his probation was clearly erroneous. We will then address whether the court abused its discretion when it revoked the defendant's probation.

A

The defendant claims that the court improperly found that he violated the terms of his probation. It is the defendant's contention that the state failed to prove by a preponderance of the evidence that he provided his probation officer with an improper address for his place of residence and an improper address for his place of employment. We disagree.

The defendant claims that the court's finding that he violated the terms of his probation by providing his probation officer with an improper address for his place of residence was clearly erroneous. We disagree.

In finding that the defendant provided his probation officer with an improper address for his place of residence, the court stated in relevant part: "The defendant was convicted ... on November 10, 1999. Thereafter, he ... signed the conditions of the probation and he knew the conditions of probation. Among them was that he had to report as directed, and he had to keep the probation officer notified as to his change of address. ... He was not living at 28 Rose Street, as documented by the return of the letter sent by the probation officer. I understand the claim that his address at the department of motor vehicles is shown as 28 Rose Street, but the testimony presented by the defendant himself was that he changed addresses during that period of time, and that's not noted on the department of motor vehicles printout, so, therefore, I find he's in violation of the conditions of probation."

Our review of the record reveals that the court's finding was not clearly erroneous. There was sufficient evidence before the court for it to find that the defendant did not keep his probation officer informed of where he was residing.

The defendant argues that "the only evidence the court had before it was the official documentation of the motor vehicle department's computer system indicating that his address had been 28 Rose Lane, unit fortytwo,"¹ and the testimony of his mother-in-law, who testified that she had sent a letter to the office of adult probation to inform it that he was changing his address.

In addition to the testimony presented by the defendant, however, the court also heard the testimony of Langrock, the defendant's probation officer. Langrock testified that he had met with the defendant on December 22, 1999. During that meeting, Langrock obtained certain information that was necessary to supervise the defendant on probation. Among that information was the address where the defendant was residing. The defendant informed Langrock that he was residing at "28 Rose Lane, unit forty-two, Danbury" and that he was also residing with a girlfriend at "63 Grand Street, Danbury." In addition to obtaining the defendant's place of residence, Langrock obtained the telephone number for each address.

Langrock testified that he noted in his file that the defendant "was very secretive about where he lives, would not give me his telephone number or any other information until I threatened a warrant for violating the terms of his probation ... if he continued to fail to provide this information." Following his meeting with the defendant, Langrock testified, he attempted to call the telephone numbers that the defendant provided for him as his place of residence. After speaking with the individuals...