State v. Parker

• Decision Date: 18 December 1984
• Citation: 194 Conn. 650,485 A.2d 139
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Robert L. PARKER.

Page 139

485 A.2d 139

194 Conn. 650

STATE of Connecticut v. Robert L. PARKER.

Supreme Court of Connecticut.

Argued Oct. 10, 1984.

Decided Dec. 18, 1984.

Edward F. Scully, Unionville, with whom, on the brief, was Kathleen B. Martin, Simsbury, for appellant (defendant).

Steven M. Sellers, Deputy Asst. State's Atty., with whom were John M. Massameno, Asst. State's Atty., and, on the brief, John Bailey, State's Atty., for appellee (state).

Before PETERS, C.J., and ARTHUR H. HEALEY, PARSKEY, DANNEHY and SANTANIELLO, JJ.

PARSKEY, Associate Justice.

The defendant was charged in a substitute information ¹ with the crimes of burglary in the third degree and larceny in the second degree, both class D felonies. ² On October 1, 1981, the court, Fishman, J., granted the defendant's application for accelerated rehabilitation pursuant to General Statutes § 54-56e ³ and released him to the custody of the office of adult probation for a period of two years. On September 30, 1983, the defendant, claiming that he had successfully completed his period of probation, filed a motion for dismissal of the charges, which the court, Kline, J., denied and the defendant appealed. ⁴ At an earlier stage of these proceedings we denied the state's motion to dismiss the appeal without prejudice to a renewal of the motion at the time of oral argument. Because on plenary consideration we are persuaded that the trial court's decision is not appealable, we now grant the state's renewed motion and order the appeal dismissed.

The general rule as to appealability of trial court decisions is well settled in our state. "Appeals to this court may be taken from final judgments or actions of the Superior Court. General Statutes § 51-197a. In a criminal case the imposition of sentence is the final judgment of the court. State v. Grotton, 180 Conn. 290, 293, 429 A.2d 871 (1980); State v. Moore, 158 Conn. 461, 463, 262 A.2d 166 (1969). Interlocutory rulings in criminal cases generally are not appealable." State v. Spendolini, 189 Conn. 92, 93, 454 A.2d 720 (1983). In certain rare circumstances, interlocutory appeals are permitted if they satisfy a two-pronged test recently articulated by this court in State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983). "An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them." Id., 191 Conn. at 31, 463 A.2d 566. Since there has been no final judgment in this case, we must analyze the defendant's claim under the standards developed in Curcio to determine whether an appeal will lie.

Our initial inquiry focuses on whether the trial court's denial of the motion to dismiss the charge "terminates a separate and distinct proceeding." State v. Curcio, supra, 191 Conn. at 31, 463 A.2d 566. A criminal prosecution is a proceeding instituted by the state to obtain punishment against a person charged with and found guilty of a public offense. It embraces not only the accusation, whether by indictment or information, and the determination of guilt or innocence, but also, in the case of a conviction, the imposition of sentence. If the interlocutory ruling is merely a step along the road to final judgment then it does not satisfy the "separate and distinct proceeding" requirement of the first prong of Curcio. State v. Longo, 192 Conn. 85, 89, 469 A.2d 1220 (1984). Obviously a ruling affecting the merits of the controversy would not pass the first part of the Curcio test. The fact, however, that the interlocutory ruling does not implicate the merits of the principal issue at the trial, namely, whether the accused is guilty of the crime charged, does not necessarily render that ruling appealable. ⁵ It must appear that the interlocutory ruling will not impact directly on any aspect of the prosecution.

The "separate and distinct" requirement of Curcio demands that the proceeding which spawned the appeal be independent of the main action. See Potter v. Appleby, 136 Conn. 641, 643, 73 A.2d 819 (1950) (application to dissolve an attachment, "[w]hile it is ancillary to the main action for damages ... is distinct from and independent of that action," and an order issued thereon "would be a final judgment from which an appeal could be taken."); Wardell v. Killingly, 96 Conn. 718, 722, 115 A. 539 (1921) (denial of applications for orders of mandamus, in a pending action, are appealable final judgments because "the applications are independent actions, they are not merely ancillary to the main action."); Sachs v. Nussenbaum, 92 Conn. 682, 685-86, 104 A. 393 (1918) (order dissolving an attachment was appealable final judgment because "[t]he proceedings ... were ... not only in fact and form, but also of necessity, entirely independent of that action and not incidental to it.... The order could not be regarded as in any sense an interlocutory one made in progress of the pending suit. That progress was not concerned with nor in any way affected by it.") This means that the "separate and distinct proceeding," though related to the central cause, must be severable therefrom. The question to be asked is whether the main action could proceed independent of the ancillary proceeding. Applying that standard to this case, it is clear that a criminal prosecution could not progress while the issues surrounding accelerated rehabilitation were pending on appeal.

Both an application for accelerated rehabilitation and a motion for dismissal of the charge grounded on a claimed successful completion of the conditions of such rehabilitation impact directly on the prosecution of the crime charged. The former seeks to suspend prosecution during a stated probationary period not to exceed two years while the latter moves to terminate the prosecution completely. Each is part of a discretionary pretrial diversionary program developed by the legislature as a possible alternative to prosecution for certain defendants. The very structure and purpose of the statutory scheme dictates that it is an additional and possibly final step in the criminal process. Since the effect of accelerated rehabilitation is to delay, and possibly to end, criminal prosecution, it can in no way constitute a "separate and distinct proceeding" within the meaning of the Curcio test. ⁶

It is useful to examine the defendant's claim to interlocutory review in light of the policy considerations underlying the final judgment rule. In Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940), the United States Supreme Court considered the purpose and effect of prohibiting interlocutory appeals in the criminal context. The reason behind "forbidding piecemeal disposition on appeal of what for practical purposes is a single controversy" is to avoid "the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment." Id., 309 U.S. at 325, 60 S.Ct. at 541. Noting that "[t]hese considerations of policy are especially compelling in the administration of criminal justice," the court observed that although "[a]n accused is entitled to scrupulous observance of constitutional safeguards ... encouragement of delay is fatal to the vindication of the criminal law." Id. Thus, a party will not "be allowed to take to the upper court a ruling where the result of review will be 'to halt in the orderly progress of a cause and consider incidentally a question which has happened to cross the path of such litigation....' " (Citation omitted.) Id., 326, 60 S.Ct. at 542.

The overarching principle involved in prosecution of crime is that justice be swift and sure. If the defendant is guilty then he should be brought to book and punished without delay and if he is innocent then the cloud of accusation should be removed as speedily as circumstances permit. Piecemeal appeals are disfavored because the delay resulting therefrom does not serve the public's interest in swift and certain justice. Allowing an interlocutory appeal from either the denial of an application for accelerated rehabilitation, or the denial of a motion to dismiss the charge pursuant to the rehabilitation statute, would necessarily delay the criminal prosecution pending its outcome to the potential prejudice of either the state or the defendant. Such delay is in direct contravention of the important policies served by the rule against interlocutory review.

The first prong of Curcio not having been satisfied, we next consider whether the right created by the statute would be irreparably lost unless interlocutory review is permitted. State v. Spendolini, supra, 189 Conn. at 95, 454 A.2d 720. General Statutes § 54-56e establishes a discretionary "pretrial program of accelerated rehabilitation of persons accused of a crime, not of a serious nature." In State v. Spendolini, supra, we held that denial of a motion for admission to this program is not appealable, first because the statute does not encompass a right not to be tried; id., 189 Conn. at 96, 454 A.2d 720; and second because an erroneous ruling may be redressed on appeal after conviction and therefore whatever rights are embodied in the statute will not be irreparably lost by compelling the defendant to await the outcome of the trial. Id., 189 Conn. at 97, 454 A.2d 720. We analogized the situation to cases involving claimed immunity from prosecution; Heike v. United States, 217 U.S. 423, 30 S.Ct. 539, 54 L.Ed. 821 (1910); the point being that just as immunity from prosecution provides a shield, not against prosecution but rather against successful prosecution, so too the rehabilitation statute affords protection against punishment rather than protection against trial.

The fact that the order terminating the...