State v. Reilly

• Decision Date: 14 November 2000
• Docket Number: (AC 20121)
• Citation: 60 Conn. App. 716,760 A.2d 1001
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. JOHN REILLY

60 Conn. App. 716

760 A.2d 1001

STATE OF CONNECTICUT v. JOHN REILLY

(AC 20121)

Appellate Court of Connecticut.

Argued September 12, 2000.

Officially released November 14, 2000.

Foti, Zarella and Dupont, JS. Richard W. Callahan, special public defender, for the appellant (defendant).

Jessica C. Torres-Daigle, special deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Michael A. Pepper, assistant state's attorney, for the appellee (state).

Opinion

DUPONT, J.

The defendant, John Reilly, appeals from the trial court's judgment, rendered pursuant to General Statutes § 53a-32,¹ revoking his probation and committing him to the custody of the commissioner of correction to serve the suspended portion of his previously imposed sentence. On appeal, the defendant asserts that he was denied federal constitutional due process because (1) he was not given prior fair warning that the conditions of his probation proscribed the particular conduct claimed to be in violation of the terms of his probation and (2) the violations found were inconsistent with those violations alleged in the state's information.² The defendant also claims that the court abused its discretion by revoking his probation and sentencing him to serve fourteen months incarceration.³

The facts and sequence of events play an important role in the disposition of this case. Accordingly, we recite them in detail. Given those facts and the claims of the defendant, this case is one of first impression in Connecticut. On July 12, 1994, the defendant pleaded guilty to sexual assault in the third degree in violation of General Statutes § 53a-72a, a class D felony. The court sentenced him to a period of four years incarceration, execution suspended after one year, with five years probation. On April 12, 1995, the defendant was released from custody and began his five year probation. The court imposed several conditions of probation. The condition relevant to this appeal was the requirement that the defendant receive sex offender treatment.⁴ On May 23, 1995, the defendant's probation officer, Suzanne Kuziak, reviewed the terms of probation with the defendant. The defendant, acknowledging and agreeing to abide by the terms and conditions of his probation, signed the standard "General Terms of Probation" form. Shortly thereafter, Kuziak referred the defendant to the Special Services Center for the Treatment of Problem Sexual Behavior (special services)⁵ for sex offender therapy. On June 14, 1995, before the defendant participated in the therapy sessions, he and special services entered into an agreement that enumerated the agency's expectations and the defendant's obligations.⁶

From June, 1995, to July 1, 1998, the defendant attended weekly group therapy meetings and received treatment from special services. According to the attendance records, the defendant was present at least 160 times and rarely missed a meeting.⁷ During that three year period, Jim Hughes, the defendant's sex offender therapist, completed twenty-nine monthly or bimonthly reports on the defendant's progress. The vast majority of the reports indicated that the defendant actively participated in the sessions.

The defendant's problems with special services began in May, 1998. According to Hughes, the defendant often took notes while other members spoke during therapy sessions. Although special services did not have a formal policy forbidding note-taking,⁸ and indeed Hughes on occasion referred to the defendant as the group's secretary and historian, Hughes and the other counselors nevertheless met to determine the propriety of the defendant's note-taking. They concluded that note-taking undermined the defendant's progress and treatment. The note-taking triggered concerns that such behavior prevented the defendant from fully relating to and interacting with other group members, and concerns about how the defendant intended to use the notes.

On May 28, 1998, Kuziak learned that the defendant may have been placing bets at an offtrack betting facility.⁹ Kuziak contacted Hughes because she thought that the defendant's possible gambling might violate the terms of his therapy. On June 3, 1998, during one of the sessions, Hughes confronted the defendant about his alleged gambling. Hughes suggested that if the defendant had money to gamble, perhaps he was no longer under financial hardship justifying a copayment reduction for the therapy sessions. Consequently, special services increased his per session fee from $7 to $15.¹⁰ The defendant became upset about the increase and refused to sign the new fee arrangement.

Additionally, Hughes discussed with the defendant the concerns prompted by his note-taking and asked him to refrain from it in the future. Testimony at the violation of probation hearing conflicted as to the extent to which the defendant continued to take notes despite Hughes' request. The defendant claimed that he confined his subsequent note-taking to permissible periods, namely during blackboard or other presentations. Hughes maintained, however, that the defendant continued to take notes while others spoke.

On June 11, 1998, the defendant filed a grievance against Hughes. It alleged, inter alia, that Hughes' handling of the fee increase in a nonprivate manner, in front of group members, served to "demean, threaten and debase" the defendant.¹¹ According to the grievance, the defendant felt that his progress at the New Haven group suffered because of conflicts with the staff. Notably, the defendant formally requested a transfer to the Middletown sex offender group. On this date, the defendant also requested, pursuant to the Freedom of Information Act, General Statutes (Rev. to 1997) § 1-7 et seq., now § 1-200 et seq., a copy of the contract between special services and the state. During a July 1, 1998 meeting with Kuziak, the defendant stated that he planned to transcribe his therapy notes. He also stated that he had spoken to other group members outside of the therapy sessions and would likely subpoena those members in connection with a lawsuit he intended to bring against special services. Kuziak, in turn, reported this information to Hughes.

The defendant attended his last therapy session on July 1, 1998. Hughes completed a progress report for that final session and reported that the defendant had actively participated in the group discussions. Hughes also noted in the report that the defendant cooperated during the reassessment of his fee.¹² Finally, the report stated that the defendant had resisted the directive to cease his note-taking.

On July 6, 1998, special services officially discharged the defendant from the treatment program and notified Kuziak of the discharge by letter. The letter cited two principal reasons for the discharge.¹³ First, it explained that the defendant's conversations with group members outside of group therapy and his threats to subpoena group members "violated his treatment contract." Second, the letter noted that the defendant fell short of treatment expectations when he refused to sign his new fee agreement. Conspicuously absent from the list of reasons for his discharge was any reference to note-taking. Hughes notified the defendant of his discharge in person on July 8, 1998.

On August 26, 1998, Kuziak executed an affidavit stating that she had probable cause to believe the defendant violated a condition of his probation. Specifically, Kuziak's affidavit alleged that the defendant's discharge resulted from a fee arrangement dispute and conversations the defendant had with members outside of therapy sessions. The state then signed an information that charged the defendant with a probation violation consistent with Kuziak's affidavit.

On October 19, 1998, the court issued a warrant for the defendant's arrest. The defendant voluntarily turned himself in on October 30, 1998. The court then released him on a promise to appear in court.

The probation violation hearing began on April 8, 1999, and concluded on September 15, 1999. During the hearing, Hughes and Kuziak testified about the events leading up to and surrounding the defendant's discharge. The court also heard from several psychologists and psychiatrists, both treating and nontreating, who testified as to the defendant's mental state. It was undisputed that the defendant was a decorated Vietnam War veteran who suffers from alcohol dependence, bipolar disorder and post-traumatic stress disorder.

On September 29, 1999, the court found by a preponderance of the evidence that "special services had a legitimate concern and motivation for telling the defendant or ordering the defendant to discontinue the note-taking during the group sessions due to the perceived harm it posed to other group members in terms of breaching their expectation of confidentiality. [The court was] also satisfied [that] the defendant became so engrossed in his pursuit of the lawsuit against special services that he did refuse to stop the note-taking, that he did become disruptive and resistant and uncooperative and became something of an uncooperative force within the group, threatening to use the transcribed notes from group sessions, threatening to subpoena group members and so on both during and outside group sessions affecting not only his own progress with respect to the sex offender treatment but the progress of others and all this in an effort to pursue his suit and get support from other group members for the lawsuit."

In light of those findings, the court determined that special services had properly discharged the defendant for his conduct. The court found, however, that the evidence did not support a probation violation on the basis of the fee dispute. After finding that the defendant "willingly and intentionally" chose not to comply with the special condition of his probation requiring that he attend sex offender therapy, the court revoked his...