State v. Smith

• Decision Date: 01 May 2001
• Citation: 255 Conn. 830,769 A.2d 698
• Court: Connecticut Supreme Court
• Parties: (Conn. 2001) STATE OF CONNECTICUT v. EMANUEL SMITH (SC 16336)

769 A.2d 698 (Conn. 2001)

STATE OF CONNECTICUT v. EMANUEL SMITH

(SC 16336)

THE SUPREME COURT OF THE STATE OF CONNECTICUT

Argued November 29, 2000

May 1, 2001

{counsel} M. Elizabeth Reid, assistant public defender, for the appellant (defendant).

James Ralls, assistant state's attorney, with whom, on the brief, were Eugene Callahan, state's attorney, and Matthew Couloute, Jr., assistant state's attorney, for the appellee (state).

McDonald, C. J., and Borden, Norcott, Katz and Sullivan, Js.¹

OPINION

Norcott, J.

The dispositive issue in this appeal is whether the due process clause of the federal constitution requires that a defendant be afforded a court hearing with counsel before a defendant's conditions of probation may be modified by the probation authorities. After a hearing held pursuant to General Statutes § 53a-32 (a), ² the trial court, Rodriguez, J., found the defendant, Emanuel Smith, ³ in violation of one of the conditions of his probation and rendered judgment imposing the defendant's original sentence of eight years imprisonment, which had been suspended. The defendant appeals, claiming a violation of his due process rights under the fourteenth amendment to the United States constitution ⁴ and article first, § 8, of the Connecticut constitution. ⁵ We affirm the trial court's judgment.

The following facts are relevant to our disposition of this appeal. On March 21, 1995, the defendant pleaded guilty to several offenses under two separate, unrelated cases. In the first case, the defendant pleaded guilty to the charges of burglary in the second degree in violation of General Statutes § 53a-102 (a), ⁶ and sexual assault in the third degree in violation of General Statutes § 53a-72a (a). ⁷ In the second case, the defendant pleaded guilty to a violation of probation in violation of § 53a-32, ⁸ with the underlying offenses being possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a), ⁹ and interfering with an officer in violation of General Statutes § 53a-167a (a). ¹⁰ In the first case, the trial court, Mintz, J., imposed a sentence of ten years imprisonment, execution suspended after four years, followed by five years probation; and in the second case, a sentence of two years imprisonment to run consecutive to the first sentence. Thus, the court approved a total effective sentence of twelve years imprisonment, execution suspended after four years, followed by five years probation. The original conditions of the defendant's probation included no contact with the victim, compliance with a standing criminal restraining order, substance abuse evaluation, and "treatment as deemed appropriate." While the defendant was incarcerated, his probation officer, Dale Thurston, modified the defendant's probation to include participation in a sex offender treatment program. ¹¹ A copy of the amended condition was delivered to the defendant in prison, which he signed.

Upon the defendant's release from prison, William Anselmo, who was the probation officer now overseeing the defendant's case, made an appointment for the defendant at the sex offender unit of special services in Norwalk, and informed him of that date. Anselmo stressed to the defendant the importance of the evaluation process. Anselmo stated that the time allotted for the defendant to meet with the therapist would be very limited, and that even being fifteen minutes late for an appointment could prevent the therapist from meeting with the defendant. The evaluation process, if the defendant were cooperative, normally could be completed in three to four visits.

After attending a few meetings on time, the defendant arrived late to a meeting on February 24, 1998, did not receive an evaluation that day, and was informed that he would be removed from the program if he were late again. On March 24, 1998, the defendant arrived late again and was told that he was expelled from the program.

Thereafter, the probation department moved to have the defendant's probation revoked. At the revocation hearing, the trial court determined that the defendant had violated his probation because he failed to comply with the condition of probation regarding sexual offender treatment. The trial court then sentenced the defendant to the unexecuted term of his original sentence. ¹² The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1, and General Statutes § 51-199 (c).

This appeal is limited to the following issues: (1) whether the modification of the defendant's probation by the office of adult probation without a hearing and counsel denied him due process of law under the federal constitution; ¹³ and (2) if the modified condition of probation was validly imposed, did the trial court abuse its discretion in concluding that the defendant violated his probation and that the rehabilitative needs of probation were no longer being met?

I.

The defendant, at the revocation hearing, did not claim that his probation was modified in violation of his due process rights under the federal or state constitution and, therefore, asks this court to review his unpreserved claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973). Under Golding, "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original.) State v. Golding, supra, 239-40. "The first two steps in the Golding analysis address the reviewability of the claim, while the last two steps involve the merits of the claim." State v. Beltran, 246 Conn. 268, 275, 717 A.2d 168 (1998). We review the defendant's claim because the record is adequate for review and the claim is constitutional in nature. See State v. Henry, 253 Conn. 354, 359, 752 A.2d 40 (2000); State v. Hinton, 227 Conn. 301, 308-309, 630 A.2d 593 (1993). The defendant's claim fails under the third prong of Golding, however, because we conclude that due process does not require a court hearing or counsel before the office of adult probation modifies a condition of probation.

A.

Over the past seventy years, the United States Supreme Court has expanded the protections afforded a defendant regarding the right to counsel and the right to a court hearing in criminal proceedings. See Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972) (expanding right to counsel to state felony or misdemeanor cases through fourteenth amendment); In re Gault, 387 U.S. 1, 41, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967) (right to counsel attaches at juvenile proceedings in which institutional confinement would result); Johnson v. Zerbst, 304 U.S. 458, 462, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938) (right to counsel expanded to attach to all federal cases); Powell v. Alabama, 287 U.S. 45, 71, 53 S. Ct. 55, 77 L. Ed. 158 (1932) (indigents afforded right to counsel under sixth amendment in all federal capital offense cases).

In addition, the Supreme Court also has sought to establish certain minimum procedural protections for individuals on parole and probation. In Morrissey v. Brewer, 408 U.S. 471, 482-83, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), the court held that the due process clause requires that an individual on parole be afforded a hearing before his parole is revoked. In determining whether the nature of the parolee's interest was within the due process protection of the fourteenth amendment, the court stated: "The parolee has been released from prison based on an evaluation that he shows reasonable promise of being able to return to society and function as a responsible, self-reliant person. Subject to the conditions of his parole, he can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life. Though the State properly subjects him to many restrictions not applicable to other citizens, his condition is very different from that of confinement in a prison. He may have been on parole for a number of years and may be living a relatively normal life at the time he is faced with revocation. The parolee has relied on at least an implicit promise that parole will be revoked only if he fails to live up to the parole conditions. In many cases, the parolee faces lengthy incarceration if his parole is revoked. We see, therefore, that the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a `grievous loss' on the parolee and often on others." Id., 482.

Subsequently, in Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973), the Supreme Court affirmed the principles set forth in Morrissey and held that, because revocation of probation results in the same loss of liberty, the same guarantee of due process applies to revocations of probation. ¹⁴ Relying on the standard set forth in Morrissey and Gagnon, the defendant in the present case argues that modifications of probation result in a loss of liberty similar to the loss caused by revocation, and he urges this court to extend due process procedural protection to probation modifications. We disagree.

We previously have never considered whether due process requires that an individual on probation be afforded an opportunity to be heard with counsel before the office of adult probation may modify the defendant's conditions of...