State v. Thorp

• Citation: 57 Conn. App. 112,747 A.2d 537
• Decision Date: 28 March 2000
• Docket Number: (AC 18539)
• Court: Appellate Court of Connecticut
• Parties: STATE OF CONNECTICUT v. RONALD THORP

57 Conn. App. 112

747 A.2d 537

STATE OF CONNECTICUT v. RONALD THORP

(AC 18539)

Appellate Court of Connecticut.

Argued December 1, 1999.

Officially released March 28, 2000.

Foti, Hennessy and Mihalakos, Js. Donald D. Dakers, special public defender, for the appellant (defendant).

Marjorie Allen Dauster, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Michael Pepper and Elpedio Vitale, senior assistant state's attorneys, for the appellee (state).

Opinion

HENNESSY, J.

The defendant, Ronald Thorp, appeals from the trial court's judgment granting the motion by the office of adult probation to modify the conditions of the defendant's probation. On appeal, the defendant claims that the court improperly (1) enlarged the conditions of his probation prior to the commencement of the probationary term in violation of General Statutes § 53a-30 (c) and (2) imposed additional, more restrictive conditions on his probation without first permitting him to withdraw his guilty plea. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The defendant pleaded guilty to sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1). Pursuant to the plea agreement, he was sentenced to ten years imprisonment, execution suspended after three years, followed by five years probation. The court ordered, as a condition of probation to which the defendant had agreed, that he have no contact with the victim. The court also imposed as a special condition of probation, to which the defendant had not agreed or objected previously, that he undergo and cooperate with substance abuse evaluation and treatment as recommended by the office of adult probation. As the defendant neared completion of his prison sentence, the office of adult probation filed a motion to modify the conditions of his probation to include sex offender evaluation and treatment.¹ The motion was granted and this appeal followed.

I

The defendant claims first that the court improperly imposed additional conditions of probation prior to the commencement of the period of probation. The defendant claims that the court was not authorized under § 53a-30 (b) or (c)² to modify or enlarge the conditions of probation except during the period of probation. In addition, the defendant claims that the office of adult probation is not authorized by § 53a-30 (b) to modify the conditions of probation before the period of probation commences. We disagree.

"Probation is the product of statute. See General Statutes § 53a-28 et seq. Statutes authorizing probation, while setting parameters for doing so, have been very often construed to give the court broad discretion in imposing conditions." State v. Smith, 207 Conn. 152, 167, 540 A.2d 679 (1988). "On appeal, the standard of review of an order of probation is whether the trial court abused its discretion. If it appears that the trial court reasonably was satisfied that the terms of probation had a beneficial purpose consistent with the defendant's reformation and rehabilitation, then the order must stand.... In reviewing the issue of discretion, we do so according it every reasonable presumption in favor of the trial court's ruling. State v. Amarillo, 198 Conn. 285, 313-14, 503 A.2d 146 (1986). [Finally, a] defendant who seeks to reverse the exercise of judicial discretion assumes a heavy burden. ... State v. Smith, supra, [167].... State v. Pieger, [240 Conn. 639, 648, 692 A.2d 1273 (1997)]." (Internal quotation marks omitted.) State v. Misiorski, 250 Conn. 280, 288-89, 738 A.2d 595 (1999).

Section 53a-30 (b) expressly allows the office of adult probation to impose reasonable conditions on probation. State v. Roberson, 165 Conn. 73, 76 n.1, 327 A.2d 556 (1973); State v. Cooley, 3 Conn. App. 410, 411 n.2, 488 A.2d 1283, cert. denied, 196 Conn. 805, 492 A.2d 1241 (1985). "[I]n determining whether a condition of probation [is proper] a reviewing court should evaluate the condition imposed under our Adult Probation Act in the following context: The conditions must be reasonably related to the purposes of the [Probation] Act. Consideration of three factors is required to determine whether a reasonable relationship exists: (1) the purposes sought to be served by probation; (2) the extent to which constitutional rights enjoyed by law-abiding citizens should be accorded to probationers; and (3) the legitimate needs of law enforcement." (Internal quotation marks omitted.) State v. Smith, supra, 207 Conn. 170.

Here, the office of adult probation required that the defendant comply with additional conditions of probation involving sex offender treatment. That office "may require that the defendant comply with any or all conditions which the court could have imposed under [§ 53a-30] (a) which are not inconsistent with any condition actually imposed by the court." General Statutes § 53a-30 (b). Sexual offender treatment is clearly enumerated in General Statutes (Rev. to 1995) § 53a-30 (a) (11), now subdivision (12), and could have been imposed by the sentencing court.³ Moreover, the additional conditions of probation are not inconsistent with the conditions imposed by the sentencing court. Namely, in addition to the usual terms of probation, the defendant also must have no contact with the victim, and the defendant must undergo substance abuse evaluation and treatment as recommended by the office of adult probation.

The office of adult probation requested the sex offender treatment as a condition of probation because the department of correction had evaluated the defendant and determined that he was a high risk to the community and had a great potential to offend again. At the hearing on the motion by the office of adult probation to modify the original probation conditions, the court cited § 53a-30 (b) and acknowledged that the probation office may require the defendant to comply with sex offender treatment, as it was not inconsistent with the other conditions imposed by the sentencing court and because there was good cause shown to add the condition. In addition, the court stated that under § 53a-30 (c), at any time during the probation period, after a hearing and for good cause, the court may modify and enlarge the conditions.

The defendant argues that the court had no authority to act as it did because it was not acting "during the period of probation or conditional discharge" as required by § 53a-30 (c). The defendant relies on State v. Deptula, 34 Conn. App. 1, 9, 639 A.2d 1049 (1994), for the proposition that similar wording in General Statutes § 53a-32 (a) was strictly construed so as to apply solely to the time period after the commencement of probation. Section 53a-32 (a) provides in relevant part that "[a]t any time during the period of probation ... the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation...."In that case, the defendant had committed a crime while in the custody of the department of correction prior to the commencement of probation. Despite the fact that a warrant for the defendant's arrest for the crime was issued during the period of probation, the court held that the phrase "during the period of probation" governed both when the warrant may be issued and when the conduct that could violate probation must occur. State v. Deptula, supra, 9.

We need not decide whether the trial court can modify the conditions of probation pursuant to § 53a-30 (c) only after the probationary period has commenced because the court approved of the added condition under both subsections (b) and (c). The court clearly stated that the office of adult probation had the authority to impose the additional condition of sex offender treatment. Although that office was not required by § 53a-30 (b) to request a hearing and court approval of the additional condition, it did so in this case. The defendant, therefore, was not prejudiced; his constitutional right to due process of law was protected, and he actually received more judicial process than that to which he was entitled. The defendant does not argue that there was no good cause to impose the requested condition. The defendant contends, however, that the court had no statutory authority to add a condition to his probation before his probation period began. The court reviewed the condition, found that it was warranted, complied with § 53a-30 (b) and approved the condition as requested. Because the office of adult probation had the authority pursuant to § 53a-30 (b) to add the condition of probation, the court's unnecessary approval, as it affected the defendant, was a harmless procedure. As a result, the modification of the defendant's probation was proper.

The defendant also claims that the office of adult probation cannot add conditions under § 53a-30 (b) because that office cannot have more authority than a court, which has to wait until the probationary period begins before it may add conditions to a defendant's probation. We are unpersuaded. "Generally, no part of a legislative enactment is to be treated as insignificant and unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase .... Insofar as it is possible, the entire enactment is to be harmonized, each part made operative." (Citation omitted; internal quotation marks omitted.) State v. Grant, 176 Conn. 17, 20, 404 A.2d 873 (1978). In State v. Mobley, 33 Conn. App. 103, 633 A.2d 726 (1993), cert. denied, 228 Conn. 917, 636 A.2d 849 (1994), this court affirmed and adopted the trial court's judgment that § 53a-30 (b) and (c) are not in conflict and that the requirements of subsection (c) need not be impressed on subsection (b). The defendant has not given us a reason nor has he cited any authority for this court to modify or overrule Mobley. Accordingly, we conclude that the trial...