State v. Swebilius

• Decision Date: 07 July 2015
• Docket Number: No. 36924.,36924.
• Citation: 158 Conn.App. 418,119 A.3d 601
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Jon SWEBILIUS.

158 Conn.App. 418

119 A.3d 601

STATE of Connecticut

v.Jon SWEBILIUS.

No. 36924.

Appellate Court of Connecticut.

Argued April 7, 2015.

Decided July 7, 2015.

Daniel M. Erwin, New Haven, for the appellant (defendant).

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and James Dinnan, senior assistant state's attorney, for the appellee (state).

ALVORD, PRESCOTT and SCHALLER, Js.

Opinion

ALVORD, J.

The defendant, Jon Swebilius, appeals from the judgment of conviction, rendered following his conditional plea of nolo contendere,¹ of possession of child pornography in the first degree in violation of General Statutes § 53a–196d(a)(1).² On appeal, the defendant claims that the trial court improperly denied his motion to dismiss because his prosecution was time barred by the statute of limitations set forth in General Statutes § 54–193(b).³ He claims that the delay in execution of the warrant for his arrest was unreasonable pursuant to State v. Crawford, 202 Conn. 443, 521 A.2d 1034 (1987). We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the defendant's claim. On May 28, 2008, the Connecticut State Police executed a search warrant at the Meriden Inn on room number 59, where the defendant was residing. The search resulted in police seizure of thirty-four computer related items, which were transported to the state forensic laboratory and submitted for forensic analysis. On April 2, 2013, the police received a report containing the findings of the forensic analysis. The report indicated that images and videos appearing to depict child pornography had been recovered from the items seized.⁴ On May 9, 2013, police obtained a warrant for the defendant's arrest for possession of child pornography in the first degree in violation of § 53a–196d. The charged offense had a five year statute of limitations, expiring on May 28, 2013.⁵

The defendant testified that he became aware, at some point after he believed the statute of limitations had expired, that a warrant had been issued for his arrest. He further testified that he had called the police and “told them that I discovered that I had been arrested or that there was a warrant for me. And after conversation, I said I will be in, I don't remember how many days later, and that I would turn myself in, which I did.” The defendant turned himself into the Connecticut State Police on June 10, 2013.

By motion filed October 10, 2013, the defendant sought to dismiss the information, claiming that the statute of limitations had not been tolled because the state had failed to exercise due diligence in serving the warrant. In his motion, he argued that he had been available and had not taken elusive action during the time in which the warrant should have been served, and that nothing indicated that the state had made any meaningful effort to serve the warrant.

On February 10, 2014, following an evidentiary hearing, the court, S. Moore, J., denied the defendant's motion to dismiss. In its memorandum of decision, the court found that the defendant, who lived at a home in Meriden that he had purchased in 2008, had not been elusive and had made no attempt to flee the state. The court stated that “[t]herefore, the crux of the matter lies in a consideration of the reasonableness of the State Police's actions in executing the warrant....” The court found that the arrest warrant had been issued on May 9, 2013 and was served on June 10, 2013, resulting in a thirty-one day period between issuance and service.⁶ The court further found that the State Police had made no attempt to serve the warrant before June 10, 2013, and only had served the warrant on June 10 “upon the defendant surrendering himself at the police barracks.” After discussing the relevant case law, the court concluded that the time period of thirty-one days between the issuance and the service of the warrant was not unreasonable. The court noted that the standard requires police to act reasonably and with due diligence in serving the warrant, not that they “act immediately upon receipt of a warrant.”

Following the denial of his motion to dismiss, the defendant, on May 19, 2014, was sentenced by the court, Scarpellino, J., to ten years incarceration, execution suspended after the mandatory minimum of five years, and ten years of probation with conditions including registration as a sex offender. This appeal followed. Additional facts will be set forth as necessary.

The defendant claims that the court improperly denied his motion to dismiss because his prosecution was time barred by the statute of limitations set forth in § 54–193(b). The defendant argues that although the arrest warrant was issued within the applicable limitations period, the statute of limitations was not tolled because the arrest warrant was executed with unreasonable delay after the limitations period had expired.

We first set forth the applicable 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. Derks, 155 Conn.App. 87, 91, 108 A.3d 1157, cert. denied, 315 Conn. 930, 110 A.3d 432 (2015).

We next turn to the relevant law. A statute of limitations claim involving a delay in service of an arrest warrant is analyzed pursuant to the framework set forth by our Supreme Court in State v. Crawford, supra, 202 Conn. 443, 521 A.2d 1034. In Crawford, the court stated that “[w]hen an arrest warrant has been issued, and the prosecutorial official has promptly delivered it to a proper officer for service, he has done all he can under our existing law to initiate prosecution and to set in motion the machinery that will provide notice to the accused of the charges against him. When the prosecutorial authority has done everything possible within the period of limitation to evidence and effectuate an intent to prosecute, the statute of limitations is tolled.... An accused should not be rewarded, absent evidence of a lack of due diligence on the part of the officer charged with executing the warrant, for managing to avoid apprehension to a point in time beyond the period of limitation.”

“We recognize, however, that some limit as to when an arrest warrant must be executed after its issuance is necessary in order to prevent the disadvantages to an accused attending stale prosecutions, a primary purpose of statutes of limitation.... Therefore, we adopt, what we think is the sensible approach of the [M]odel [P]enal [C]ode, and conclude that, in order to toll the statute of limitations, an arrest warrant, when issued within the time limitations of § 54–193(b), must be executed without unreasonable delay.... We do not adopt a per se approach as to what period of time to execute an arrest warrant is reasonable. A reasonable period of time is a question of fact that will depend on the circumstances of each case. If the facts indicate that an accused consciously eluded the authorities, or for other reasons was difficult to apprehend, these factors will be considered in determining what time is reasonable. If, on the other hand, the accused did not relocate or take evasive action to avoid apprehension, failure to execute an arrest warrant for even a short period of time might be unreasonable and fail to toll the statute of limitations.” (Citations omitted; footnote omitted.) Id., at 450–51, 521 A.2d 1034.

“A statute of limitations claim is an affirmative defense for which the burden rests with the defendant to prove the elements of the defense by a preponderance of the evidence.” State v. Woodtke, 130 Conn.App. 734, 740, 25 A.3d 699 (2011). “[O]nce a defendant puts forth evidence to suggest that [he] was not elusive, was available and was readily approachable, [however] the burden shifts to the state to prove that the delay in executing the warrant was not unreasonable.”State v. Soldi, 92 Conn.App. 849, 857, 887 A.2d 436, cert. denied, 277 Conn. 913, 895 A.2d 792 (2006).

In the present case, the court found that the defendant had satisfied his burden of demonstrating that he was not elusive, was available and was readily approachable, and the state does not challenge this finding on appeal. Thus, the issue on appeal is whether the state satisfied its burden of demonstrating that the period of thirty-one days between issuance and service of the warrant was reasonable.

Since our Supreme Court's decision in Crawford, our courts have consistently applied the unreasonable delay standard to determine whether police exercised due diligence in serving an arrest warrant, thereby satisfying the statute of limitations, even though execution of the warrant occurred beyond the date the limitations period was to expire. Recently, in State v. Woodtke, supra, 130 Conn.App. at 736, 25 A.3d 699, this court considered a period of two years and ten months between issuance and service of an arrest warrant for a misdemeanor offense. After concluding that the defendant had satisfied her burden of demonstrating that she had not been elusive, this court considered whether the state had subsequently met its burden to demonstrate that the delay was reasonable. Id., at 741, 25 A.3d 699. In concluding that it had not been reasonable, the court took into account the police department's efforts to locate individuals...