State v. Suzanne P.
| Decision Date | 09 November 2021 |
| Docket Number | AC 43859 |
| Citation | 208 Conn.App. 592,265 A.3d 951 |
| Parties | STATE of Connecticut v. SUZANNE P. |
| Court | Connecticut Court of Appeals |
Daniel J. Krisch, assigned counsel, Washington, DC, for the appellant (defendant).
Kevin M. Black, Jr., former certified legal intern, with whom were Michele C. Lukban, senior assistant state's attorney, Rocky Hill, CT, and, on the brief, Sharmese A. Walcott, state's attorney, and Mark Brodsky, former senior assistant state's attorney, West Hartford, CT, for the appellee (state).
Suarez, Clark and DiPentima, Js.
The defendant, Suzanne P., appeals from the judgment of the trial court denying her amended motion to modify a special condition of her probation. On appeal, the defendant claims that the court improperly (1) determined that the special condition prohibited her from having any contact with her children, and (2) denied her amended motion for modification despite the fact that the special condition prohibiting contact with her children violates her right to due process. We affirm the judgment of the trial court.
The following facts and procedural history are relevant. On July 6, 2018, the defendant pleaded guilty to operation of a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a as a second offender. As part of the plea agreement, the defendant also admitted to having violated the terms of her probation. Her pleas were part of a global resolution in which the following charges were nolled: breach of the peace in the second degree in violation of General Statutes § 53a-181, criminal trespass in the first degree in violation of General Statutes § 53a-107 and failure to display lights while operating a motor vehicle in violation of General Statutes § 14-96a (a). The breach of the peace charge arose from an incident involving the defendant and her boyfriend, L. The criminal trespass charge involved an incident in which the defendant, after having been warned not to trespass at the residence of her former husband, R, and their two children, left on the front porch of that residence a gift bag containing photographs and a note indicating that she would like to see their children. After canvassing the defendant, the court found that the plea was made knowingly and voluntarily and accepted the plea. The state recommended two years of incarceration, execution suspended after one year, with three years of probation. The state urged the court to order as a special condition of probation that the defendant have no contact with L. The court ordered a presentence investigation report (PSI), continued the matter for sentencing and noted that the defendant had the right to argue for a lesser sentence.
At the August 31, 2018 sentencing hearing, the issue of no contact with the defendant's children was raised. When invited to provide a victim statement to the court, R stated, "[W]ith a long history of [the defendant's] insobriety, my children and I would just like a no contact."1 The defendant noted her struggles with sobriety and expressed her desire not to force herself on her children. She explained, The court noted the defendant's history of unsuccessful attempts at sobriety and the loss of contact with her children. The court sentenced the defendant to two years of incarceration, execution suspended after one year, and three years of probation. One of the special conditions of probation ordered by the court was that the defendant have "no contact with the domestic violence complainants."2 The court further stated that, after the defendant had completed four months of probation, she may file a motion to modify and "show that there has been justification to address the issue of no contact ...."3
Before the defendant began probation, she filed a motion to modify the no contact condition as to L, with whom she planned to reside following her release. At a January 18, 2019 hearing, the court denied the motion and clarified that the no contact order prohibited contact with L and the defendant's family.
The defendant's probationary period began on May 13, 2019. The relevant written special condition of her probation provided that she have "[n]o contact with victim(s)/complainant(s) [L], [R] or [the] victim's/complainant's family." The defendant filed a motion, dated July 29, 2019, for clarification and modification of the no contact special condition, in which she requested the court to clarify that the no contact condition of her probation did not apply to her children. In the motion, the defendant argued that R had prevented her from having visitation with her children as a result of the no contact special condition, despite the fact that, pursuant to a divorce settlement, the defendant and R shared joint legal custody of the children, aged thirteen and sixteen, who reside with R. The court denied the motion without prejudice because R, who had made it "abundantly clear that he did not want contact for himself or his children," was not provided notice of the hearing. The defendant then filed an "amended motion to modify condition of probation," dated November 13, 2019, in which she sought to "modify the ‘no contact’ condition of [her] probation by specifically deleting the condition of ‘no contact with the domestic violence complainants’ and substitute [it] with ‘no contact with [L ] and the defendant's ex-husband [R ], with the exception that [she ] be permitted to have communication with [R ] for the specific purposes of discussing the educational, financial, and health related needs of her minor children .’ " (Emphasis in original.) In her motion, the defendant contended that prohibiting her from contacting her children while on probation conflicted with the court's oral pronouncement of her sentence and violated her constitutional right to due process.
At the November 15, 2019 hearing on the defendant's amended motion to modify, defense counsel stated that the defendant is "minimally ... seeking clarification ...." Counsel representing R and his children stated that they did not want contact with the defendant at this time and elaborated that the children "have suffered deep wounds because of their mother's behavior and ... they are going through recovery just as their mother is going through recovery ...." R requested that the court "uphold the no contact for myself and my children at this time." The court stated that, because the therapist of the older child "is here, essentially, in a representative role for those children, I will allow a brief comment ...." The therapist stated that the child was seeking stability and is not interested in having visitation with the defendant and that it was not in the best interest of the child to force her to have contact with the defendant. The court stated that The court concluded that the no contact special condition pertained to the children and noted that, "[i]f we were here today with the domestic violence victim and/or counsel on their behalf saying that there was no opposition and that they wanted contact, the court's order would be very different." At the conclusion of the hearing, the court denied the motion. This appeal followed.
On November 19, 2020, the court issued an articulation of its denial of the defendant's amended motion to modify in response to a motion for articulation filed by the defendant.4 Additional facts will be set forth as necessary.
The defendant first claims that the court improperly determined that the special condition prohibited her from having any contact with her children. She argues that the court's oral pronouncement, made at the time of sentencing, that she have "no contact with the domestic violence complainants," is unambiguous and conflicts with the written memorialization of that special condition, which provides that the defendant have "[n]o contact with victim(s)/complainant(s) [L], [R] or [the] victim's/complainant's family." We are not persuaded that the court's determination was improper.
We note, preliminarily, that the court's oral pronouncement of the special condition controls and not the written memorialization of the oral pronouncement. "[B]ecause the sentence in a criminal case generally is imposed orally in open court ... the written order or judgment memorializing that sentence, including any portion pertaining to probation, must conform to the court's oral pronouncement." (Citation omitted.) State v. Denya , 294 Conn. 516, 529, 986 A.2d 260 (2010). "Consequently, as a general matter, any discrepancy between the oral pronouncement of sentence and the written order or judgment will be resolved in favor of the court's oral pronouncement." Id., at 531, 986 A.2d 260.
Whether the defendant's criminal trespass is an act of family violence under General Statutes § 46b-38a is not the issue presented to us in this appeal. The court apparently considered the trespass to be a domestic violence crime, but the issue in this appeal is whether the court used the term "domestic violence complainants" to include the children.5 The court's use of the plural term "complainants" indicates that it intended to include more persons than L in the order. It, however, is ambiguous as to whether the term "complainants" includes, in addition to L, only R or R and the children. In light of this ambiguity, we next consider whether the court properly determined that the no contact condition applied to the defendant's children.
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