State v. Smith

Citation207 Conn. 152,540 A.2d 679
Decision Date19 April 1988
Docket NumberNo. 13116,13116
CourtSupreme Court of Connecticut
Parties, 87 A.L.R.4th 901 STATE of Connecticut v. Kendall SMITH.

Wesley S. Spears, with whom, on the brief, was Timothy H. Everett, Hartford, for appellant (defendant).

Carolyn K. Longstreth, Deputy Asst. State's Atty., with whom, on the brief, was Frank D'Addabbo, Asst. State's Atty., for appellee (state).

Before ARTHUR H. HEALEY, CALLAHAN, GLASS, COVELLO and HULL, JJ.

ARTHUR H. HEALEY, Associate Justice.

The defendant, Kendall Smith, a probationer, has appealed from the imposition by the trial court, Barall, J., of a special condition of probation one year after his sentencing originally placing him on probation. He maintains that, in doing so, the trial court violated General Statutes § 53a-30 1 and his probationer's right to be free from illegal searches and seizures. We dismiss his appeal as moot.

On October 30, 1985, Smith pleaded guilty under the Alford doctrine to one count of robbery in the first degree in violation of General Statutes § 53a-134(a)(2). 2 North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). At that time, the court, Purtill, J., sentenced the defendant to five years in prison with execution to be suspended after eighteen months with three years probation. The presentence investigation report at that time indicated that the defendant had a problem with drugs and that he had committed the robbery to obtain money for drugs. No special conditions of probation were imposed at the time of this sentencing.

After the defendant's probationary period began, senior probation officer Thomas McGeary, who had ten years experience, was assigned to act as his probation officer. On October 28, 1986, McGeary, based on his observations of the defendant and the original presentence investigation, filed a request 3 to modify the conditions of probation by imposing a special condition of urinalysis testing and cooperation with any drug treatment required by the adult probation department. On January 8, 1987, a hearing on McGeary's request was held by the court, Barall, J. The defendant was present with counsel. Both McGeary and the defendant testified and both were cross-examined. McGeary's testimony developed that the defendant, on October 23, 1986, had reported four hours late for an appointment at McGeary's office. At that time, McGeary, who had participated in a number of training courses concerning the use of drugs, said that the defendant had been "a little bit fidgety," "a little bit edgy" and that "he just appeared to [McGeary] at that time to be under the influence of some type of stimulant." McGeary asked him to provide a urine sample at that time. The defendant declined, saying that he would not because of a medical condition and he showed McGeary some prescription medication that he said he had been taking. McGeary also said that some weeks later the defendant had told him that he had been using marihuana and that he would continue to do so.

During his testimony, the defendant denied that he had ever admitted to McGeary that he had used marihuana and he maintained that McGeary had told him that it was all right if he used marihuana but that he would not allow him to use "cocaine and all that other stuff, heroin." The defendant did state that he later had submitted to a urine test for McGeary but that he had done so against his will. The test disclosed the presence of marihuana.

At the conclusion of the hearing, the trial court, Barall, J., made it clear that the defendant's drug use was "an issue of credibility" and that it believed the probation officer. It found "good cause" 4 for granting the modification and ordered that the defendant "submit himself to body fluid examination from time to time as deemed appropriate by the probation department to ensure that he stays off marijuana or any other drugs ... [and] that if the probation department orders drug counseling, both either in or out patient is deemed appropriate, [that] shall be added as a second condition." Defense counsel noted his exception and then stated: "Just for the record, we do intend to appeal Your Honor." On January 26, 1987, the defendant appealed to the Appellate Court and, thereafter, the appeal was transferred to this court pursuant to Practice Book § 4023.

On May 5, 1987, the defendant, with his counsel present, appeared before the trial court, Byrne, J. At that time, he was put to plea on an information charging him with the violation of the conditions of his probation in violation of General Statutes § 53a-32. 5 He admitted the violation. 6 Before the trial court addressed the defendant and his counsel on the plea canvass, the state read the factual basis of the charge. In part, he recited the modification of the conditions of probation by Judge Barall and also said: "[A]fter the January 8th, 1987 modification, it was found that the defendant had involved himself with narcotics and did come back with dirty specimens." The canvass included this question to the defendant: "Now is anybody forcing you to make this admission" and he answered, "No." Defense counsel was asked if he was satisfied that the defendant's "admission [was] voluntarily and understandably made," to which counsel answered, "Yes." Defense counsel was also asked whether he knew "of any reason why [the court] shouldn't accept the admission" and counsel answered, "No, I don't Your Honor." The state also indicated that it did not. The record indicates that the case had been pretried before the court, Byrne, J., and that there had been some plea bargaining wherein the defendant sought the reduction of the unexpired portion of his sentence. On June 4, 1987, 7 the court, Byrne, J., modified the original sentence and sentenced the defendant to serve nine months incarceration, which, it said, would "in effect serve the unexpired portion of the sentence." 8

On appeal, the defendant claims that the trial court erred in imposing compulsory drug tests as a special condition of his probation one year after imposition of his sentence. He contends that the trial court, in doing so, violated General Statutes § 53a-30, his federal and state 9 constitutional rights to be free from illegal searches and seizures and his right to have notice of the terms of his probation at the time of sentencing. He argues that a supervisory court other than the sentencing court lacks authority to impose postsentence special conditions of probation and that, in any event, § 53a-30(c) should be construed to allow only modification or enlargement of existing conditions that "already apply to a probationer."

The defendant resists not only the state's argument of mootness, but also the state's collateral claim that he has not preserved any of his claims for appeal. He acknowledges that it is correct that he has completed his sentence and that the special conditions complained of on this appeal no longer exist. He goes on, however, to reason that, because the factual basis upon which he pleaded to the violation resulted from that which was disclosed by drug testing imposed in violation of his rights, the "admitted" revocation of probation, if permitted to stand, would not only have a negative effect on his ability to obtain probation in the future but also that it should be erased from his record. This appeal, therefore, he claims is not moot. He argues that he has preserved his claims for appeal because he objected and excepted to the special conditions at the time they were imposed by the trial court, Barall, J. In addition, the defendant contends that he has waived no right to his appeal by his later plea-bargained admission to the violation for which he was sentenced. He maintains that this is so not only because he had objected and excepted to the imposition of the special condition but also because the trial court, Byrne, J., in fact knew of the pendency of the appeal that he had taken earlier. The record in the trial court, however, shows nothing to indicate that the trial court knew of the pendency of this appeal. 10

On the other hand, the state contends that all of the defendant's claims of error are without merit. Although developed at length in its brief, the state's broad claim is that, even if it is assumed that the special condition of urinalysis violated the defendant's fourth amendment rights, the defendant's express admission of the illegal use of drugs upon his plea canvass validated the probation revocation because compliance with the law is always a condition of probation. The state, however, is quick to add that there was no constitutional or statutory violation and that the special condition was properly imposed. It did state in oral argument that, in the event we conclude that the imposition of the special condition had been invalid, then the revocation of probation would have to be removed from the defendant's record. This possible "collateral consequence" is, the state asserts, the only possible obstacle to a dismissal on grounds of mootness. In the event that there may be collateral consequences if we resolve the defendant's claims in his favor, it clearly impacts on the matter of mootness.

Reference to the consequences of a guilty plea is helpful when we consider the direct or collateral consequences of a revocation of probation in this case. "The distinction between 'direct' and 'collateral' consequences of a plea, while sometimes shaded in the relevant decisions, turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant's punishment." United States v. Lambros, 544 F.2d 962, 966 (8th Cir.1976), cert. denied, 430 U.S. 930, 97 S.Ct. 1550, 51 L.Ed.2d 774 (1977); Huffman v. State, 703 S.W.2d 566, 568 (Mo.App.1986). Something that is "collateral" is "indirect." N. Webster, Third New International Dictionary. A "consequence" has been defined as "a...

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