State v. Orr, 080420 CTCA, AC 40886

Docket Nº:AC 40886
Opinion Judge:LAVINE, J.
Party Name:STATE OF CONNECTICUT v. ANTHONY D. ORR
Attorney:Anthony D. Orr, self-represented, the appellant (defendant). Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Terence D. Mariani, senior assistant state's attorney, for the appellee (state).
Judge Panel:DiPentima, C. J., and Lavine and Elgo, Js. In this opinion DiPENTIMA, C.J., concurred. ELGO, J., concurring.
Case Date:August 04, 2020
Court:Appellate Court of Connecticut
 
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STATE OF CONNECTICUT

v.

ANTHONY D. ORR

No. AC 40886

Court of Appeals of Connecticut

August 4, 2020

Argued February 19, 2020

Procedural History

Information charging the defendant with violation of probation, brought to the Superior Court in the judicial district of Fairfield and transferred to the judicial district of Waterbury, where the matter was tried to the court, K. Murphy, J.; judgment revoking the defendant's probation, from which the defendant appealed to this court. Appeal dismissed in part; affirmed.

Anthony D. Orr, self-represented, the appellant (defendant).

Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Terence D. Mariani, senior assistant state's attorney, for the appellee (state).

DiPentima, C. J., and Lavine and Elgo, Js. [*]

OPINION

LAVINE, J.

In this violation of probation case, the self-represented defendant, Anthony D. Orr, 1 appeals from the judgment rendered by the trial court after it found him in violation of his probation pursuant to General Statutes § 53a-32. On appeal, the defendant claims that his state and federal constitutional rights to due process, to a fair trial, and to be convicted upon sufficient evidence were violated.2 Specifically, he claims that (1) there was insufficient evidence pursuant to which the court could find by a preponderance of the evidence that he had violated the terms of his probation; (2) the court found that he had violated state laws with which he had not been charged; (3) the state suppressed evidence in violation of Brady;3 (4) the trial court abused its discretion by permitting the state to try the violation of probation case before it tried a criminal case that was then pending against him; (5) he was denied due process because he did not know the nature of the charges against him; and (6) the court violated the Code of Judicial Conduct. With respect to each of his claims, the defendant has requested that we review them pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015), 4the plain error doctrine, 5 or for abuse of discretion. On the basis of our review of the record, the briefs, and arguments of the parties, we conclude that the defendant's claim of insufficient evidence is moot and his purported constitutional claims fail under the third prong of Golding because the claimed constitutional violations did not exist and the defendant was not denied due process or a fair trial. We, therefore, dismiss the defendant's claim of insufficient evidence and otherwise affirm the judgment of the trial court.

A summary of the facts underlying the defendant's appeal follows. On February 19, 2009, the defendant, who had been found guilty of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), was sentenced to twelve years of incarceration, execution suspended after seven years, and five years of probation. In August, 2014, the defendant completed the incarceration portion of his sentence and was released on probation. On September 4, 2014, the defendant met with his probation officer, Timothy Fenn, and signed conditions of probation that required him, among other things, (1) not to violate any criminal law of this state, (2) to submit to urinalysis, (3) to report to the Office of Adult Probation as directed, and (4) to inform his probation officer if he were arrested.

On October 6, 2016, the defendant was arrested in Waterbury and charged with two counts of possession of narcotics with intent to sell, operation of a drug factory, possession of less than four ounces of marijuana, and interfering with a search. The defendant's arrest resulted from an investigation undertaken by the Waterbury police into the sale of narcotics by Jermaine Robinson and an apartment at 119 Angel Drive in Water-bury (apartment). Following the defendant's arrest, Fenn applied for a warrant for his separate arrest on the ground that the defendant had violated his probation. The defendant was arrested in November, 2016, and charged with violation of probation pursuant to § 53a-32. The defendant's violation of probation hearing was held in June, 2017. After the court, K. Murphy, J., found that the defendant had violated the conditions of his probation and that his rehabilitation level was minimal, the court revoked his probation and sentenced the defendant to five years of imprisonment.6 The defendant appealed.

In the section of his brief concerning the nature of the proceedings, the defendant stated: ‘‘On June 16, 2017, the court found the defendant violated condition #1 of probation, and based on that finding sentenced the defendant to [five years of] imprisonment.'' The defendant's statement is inaccurate. Although the court first had to determine whether the defendant had violated the conditions of his probation, the court sentenced the defendant to five years of incarceration because, during the dispositional phase of the proceeding, the court found that the defendant's rehabilitation level was minimal and the beneficial purposes of probation were no longer being met. In view of the defendant's lack of understanding regarding the violation of probation process, we set forth, in general and in detail, the law regarding violation of probation proceedings before we address his specific claims.

Section 53a-32, the probation violation statute, provides in relevant part: ‘‘(a) At any time during the period of probation . . . the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation . . . . (c) [U]pon an arrest by warrant . . . the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. At such hearing the defendant shall be informed of the manner in which such defendant is alleged to have violated the conditions of such defendant's probation . . . . (d) If such violation is established, the court may . . . extend the period of probation . . . . No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by the introduction of reliable and probative evidence and by a preponderance of the evidence.''

‘‘All that is required for revocation of probation is that the court be satisfied that the probationer has abused the opportunity given him to avoid incarceration. . . . Moreover, even though revocation is based upon [criminal] conduct, the [c]onstitution does not require that proof of such conduct be sufficient to sustain a criminal conviction.'' (Citations omitted.) Roberson v.

Connecticut, 501 F.2d 305, 308 (2d Cir. 1974). A probationer whose condition of probation requires that the probationer not violate any criminal law may violate that condition without being convicted of a crime. See id.

‘‘The primary purpose of a probation proceeding is to determine whether the defendant is complying with the terms of his probation. . . . Appellate review distills to a review of the reasonableness of two findings, whether there was a violation of a condition of probation, and whether probation should be revoked because its rehabilitative purposes are no longer being served.'' (Citation omitted; emphasis added.) State v. Baxter, 19 Conn.App. 304, 321, 563 A.2d 721 (1989). ‘‘While the defendant is on probation, he remains in the legal custody and under the control of the [Commissioner] of [C]orrection. A [probation] revocation proceeding is concerned not only with protecting society, but also, and most importantly, with rehabilitating and restoring to useful lives those placed in the custody of the [Commissioner of Correction].'' (Internal quotation marks omitted.) Payne v.

Robinson, 10 Conn.App. 395, 401, 523 A.2d 917 (1987), aff'd, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S.Ct. 242, 102 L.Ed.2d 230 (1988).

Practice Book § 43-29 provides in relevant part that, unless the revocation of probation is based upon a conviction for a new offense, ‘‘proceedings for revocation of probation shall be initiated by an arrest warrant supported by an affidavit . . . showing probable cause to believe that the defendant has violated any of the conditions of the defendant's probation . . . . At the revocation hearing, the prosecuting authority and the defendant may offer evidence and cross-examine witnesses. If the defendant admits the violation or the judicial authority finds from the evidence that the defendant committed the violation, the judicial authority may make any disposition authorized by law. . . .'' (Emphasis added.)

‘‘Probation revocation proceedings fall within the protections guaranteed by the due process clause of the fourteenth amendment to the federal constitution. . . . Probation itself is a conditional liberty and a privilege that, once granted, is a constitutionally protected interest. . . . The revocation proceeding must comport with the basic requirements of due process because termination of that privilege results in a loss of liberty. . . . [T]he minimum due process requirements of revocation of [probation] include written notice of the claimed [probation] violation, disclosure to the [probationer] of the evidence against him, the opportunity to be heard in person and to present witnesses and documentary evidence, the right to confront and cross-examine adverse witnesses in most instances, a neutral hearing body, and a written statement as to the evidence for and reasons for [probation] violation.'' (Citations omitted; internal quotation marks omitted.) State v.

Gauthier, 73 Conn.App. 781, 789, 809 A.2d 1132 (2002), cert. denied, 262 Conn. 937, 815...

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