State v. Smith

• Decision Date: 19 December 2017
• Docket Number: AC 38832
• Citation: 177 A.3d 593,178 Conn.App. 715
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Jacqui SMITH

178 Conn.App. 715

177 A.3d 593

STATE of Connecticut

v.Jacqui SMITH

AC 38832

Appellate Court of Connecticut.

Argued October 11, 2017

Officially released December 19, 2017

Laila M. G. Haswell, senior assistant public defender, for the appellant (defendant).

Robert J. Scheinblum, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and C. Robert Satti, Jr., supervisory assistant state's attorney, for the appellee (state).

DiPentima, C.J., and Sheldon and Mihalakos, Js.

DiPENTIMA, C.J.

The defendant, Jacqui Smith, appeals from the judgment of the trial court revoking his probation and sentencing him to five years incarceration. The defendant claims that (1) the court improperly denied his motion to dismiss the probation violation charge on the basis that the hearing did not occur within 120 days of his arraignment in violation of General Statutes § 53a–32 (c) and (2) the evidence was insufficient to prove that he had operated a motor vehicle while his driver's license was under suspension in violation of General Statutes § 14–215 (a) and, therefore, he is entitled to a new sentencing hearing. The state counters that, pursuant to State v. Kelley , 164 Conn.App. 232, 137 A.3d 822 (2016), aff'd, 326 Conn. 731, 167 A.3d 961 (2017), the 120 day time frame of § 53a–32 (c) is directory and, additionally, that the court properly found good cause for the delay. The state concedes, however, that there was insufficient evidence for the court to conclude that the defendant had violated § 14–215 (a), and, therefore, under these facts and circumstances, the defendant is entitled to a new sentencing hearing. We conclude that the court properly determined that the 120 day time period of § 53a–32 (c) is a nonmandatory "guideline." Further, we agree that a new sentencing hearing is required. Accordingly, we affirm in part and reverse in part the judgment of the trial court.

The following facts and procedural history are necessary for our discussion. The defendant was convicted of drug related offenses in January, 2013, and sentenced to ten years incarceration, execution suspended after three years, and three years of probation. He was released from custody on April 1, 2015, and first reported to his probation officer on April 9, 2015. During this meeting, the probation officer reviewed the conditions of probation with the defendant.

The standard conditions of probation provided, inter alia, that the defendant was not to violate any criminal law of the United States or the state of Connecticut, that he was to report as instructed to the probation officer and that he was to inform the probation officer if he was arrested. The specific conditions of probation required the defendant to complete a mental health evaluation, to complete a substance abuse evaluation and treatment, if necessary, to obtain full-time employment and/or educational/vocational training, to attend one "Project Safe Neighborhood Meeting" within the first three months of probation and not to possess drugs, narcotics or weapons. The defendant signed a form listing the conditions of his probation.

On June 15, 2015, the state charged the defendant with violating his probation. See General Statutes § 53a–32 (a). It alleged that on May 25, 2015, Bridgeport police officers observed the defendant driving a motor vehicle and noticed that the occupants were not wearing seat-belts. After a brief investigation, the officers issued the defendant a misdemeanor summons for operating a motor vehicle while his driver's license was under suspension in violation of § 14–215 (a) and without minimum insurance in violation of General Statutes § 14–213b. The state also claimed that the defendant had missed four appointments for an integrated mental health and substance abuse assessment. The defendant was arraigned on the violation of probation charge on June 30, 2015.

On December 16, 2015, the defendant moved to dismiss the probation violation charge pursuant to § 53a–32 (c). Specifically, the defendant argued that he had "been held on this charge for more than 120 days in violation of said statute." On December 21, 2015, the court, Devlin, J. , held a hearing on the defendant's motion. After hearing from the parties, the court ruled as follows: "[A]s I read this statute, it is advisory. This is a statute which advises the court of the legislature's concern.... [T]he statute does not provide that the remedy for not having someone adjudicated on their violation of probation case is a dismissal of the charge. It doesn't provide for that.... So, I'm going to deny this motion to dismiss."

The next day, the court, Kavanewsky, J. , conducted a hearing on the probation violation charge. At the conclusion of the adjudicatory phase,¹ the court found the following facts. "The state has established that the defendant violated the terms and conditions of his probation in several different respects, including reporting as the probation officer directed him to, keep the probation officer advised of his general whereabouts, also more specific conditions relating to the defendant obtaining mental health, regarding substance abuse and regarding attendance at, at least one project safe neighborhood meeting." It further found that the defendant had been advised of these conditions in April, 2015, but essentially "dropped off the radar" in May, 2015.

The court also expressly found, on the basis of the testimony of two police officers, that the defendant had operated a motor vehicle in violation of § 14–215 (a) on May 25, 2015. Accordingly, the court found, by a preponderance of the evidence,² that the defendant wilfully had violated the terms and conditions of his probation.

During the dispositional phase, the court determined that the beneficial aspects and purposes of probation were no longer being served. The court then stated: "[The defendant] was previously sentenced to ten years, suspended after three years, with three years' probation. The judgment previously entered is reopened. The sentence is vacated and the defendant is sentenced ... to a period of five years to serve ...." This appeal followed.

On October 4, 2016, the trial court issued a memorandum of decision further explaining the oral decision denying the defendant's motion to dismiss. It concluded that our decision in State v. Kelley , supra, 164 Conn.App. 232, 137 A.3d 822, was dispositive. Specifically, the court noted that in Kelley , which had been released after the hearing and oral decision on the defendant's motion to dismiss, we concluded that the 120 day limitation of § 53a–32 (c) is a "goal" and a "guideline," not a jurisdictional requirement. Id., at 240, 137 A.3d 822. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied his motion to dismiss the violation of probation charge. Specifically, he argues that the plain language of § 53a–32 (c) establishes a mandatory time period, 120 days from the arraignment, in which the probation violation hearing must occur. He also contends that the state failed to establish good cause for extending this time period. We are not persuaded.

We begin with our standard of review. "A motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.... [O]ur review of the trial court's ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo.... Factual findings underlying the court's decision, however, will not be disturbed unless they are clearly erroneous.... The applicable standard of review for the denial of a motion to dismiss, therefore, generally turns on whether the appellant seeks to challenge the legal conclusions of the trial court or its factual determinations." (Internal quotation marks omitted.) State v. Pittman , 123 Conn.App. 774, 775, 3 A.3d 137, cert. denied, 299 Conn. 914, 10 A.3d 530 (2010) ; see also State v. Soldi , 92 Conn.App. 849, 852–53, 887 A.2d 436, cert. denied, 277 Conn. 913, 895 A.2d 792 (2006). The defendant also challenges the court's interpretation of § 53a–32 (c), and we consider this question of law under the plenary standard of review. See, e.g., State v. Smith , 289 Conn. 598, 608, 960 A.2d 993 (2008).

Section 53a–32 (c) provides: "Upon notification by the probation officer of the arrest of the defendant or upon an arrest by warrant as herein provided, 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 or conditional discharge, shall be advised by the court that such defendant has the right to retain counsel and, if indigent, shall be entitled to the services of the public defender, and shall have the right to cross-examine witnesses and to present evidence in such defendant's own behalf. Unless good cause is shown, a charge of violation of any of the conditions of probation or conditional discharge shall be disposed of or scheduled for a hearing not later than one hundred twenty days after the defendant is arraigned on such charge ." (Emphasis added.)

In State v. Kelley , supra, 164 Conn.App. at 239, 137 A.3d 822, the defendant claimed, inter alia, that the 2008 amendment to § 53a–32 (c) created a jurisdictional requirement that a probation revocation hearing occur within 120 days of the arraignment, absent good cause. We rejected that argument for two reasons. Id. First, we noted that "[t]he existence of the ‘good cause’ exception specified in § 53a–32 (c) undermines that contention, as subject matter jurisdiction is a prerequisite to adjudication that ‘cannot be waived by anyone, including [the] court.’ ... The trial court's ability to waive the 120 day limitation for...