State v. Trahan

• Decision Date: 15 July 1997
• Docket Number: No. 13810,13810
• Citation: 45 Conn.App. 722,697 A.2d 1153
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Robert C. TRAHAN.

Page 1153

697 A.2d 1153

45 Conn.App. 722

STATE of Connecticut v. Robert C. TRAHAN.

No. 13810.

Appellate Court of Connecticut.

Argued April 22, 1997.

Decided July 15, 1997.

James M. Ralls, Assistant State's Attorney, with whom, on the brief, were Patricia A. Swords, State's Attorney, and Matthew Gedansky, Assistant State's Attorney, for appellant (State).

Pamela S. Nagy, Special Assistant Public Defender, for appellee (defendant).

Before EDWARD Y. O'CONNELL, FOTI and HEIMAN, JJ.

HEIMAN, Judge.

The state, with the permission of the trial court, ¹ appeals from the judgment granting the defendant's motion to dismiss a charge of failure to appear in the second degree in violation of General Statutes § 53a-173. The defendant moved to dismiss the charge against him after the state reported to the court that the defendant had failed to complete satisfactorily a previously granted application for accelerated rehabilitation as to that charge. In this appeal, the state asserts that the trial court acted improperly in dismissing the underlying charge because the statute mandates that, where a defendant fails to complete satisfactorily a period of probation imposed under a grant of accelerated rehabilitation, the case shall be brought to trial. As an alternative, the state posits that the action of the trial court in dismissing the underlying charge, under the facts of this case, constituted an abuse of discretion.

The facts necessary to a resolution of this appeal are not substantially in dispute. On November 24, 1990, the defendant was issued a summons charging him with operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a and failure to display proper lighted lamps and illuminating devices in violation of General Statutes § 14-96a. The defendant failed to make a scheduled court appearance on February 25, 1991, with respect to the motor vehicle charges and he was subsequently charged with failure to appear in the second degree in violation of General Statutes § 53a-173.

On August 31, 1992, the defendant applied for accelerated rehabilitation as to the charge of failure to appear. On November 9, 1992, the defendant withdrew his prior plea of not guilty as to the charge of operating a motor vehicle while under the influence of intoxicating liquor or drugs and entered a plea of guilty to that charge. The state entered a nolle to the charge of failure to display proper lighted lamps and illuminating devices. On the same day, the trial court granted the defendant's application for accelerated rehabilitation with respect to the charge of failure to appear.

On the defendant's conviction of operating a motor vehicle while under the influence of intoxicating liquor or drugs, the trial court imposed a sentence of six months in the custody of the commissioner of correction, suspended, and in lieu of the mandatory forty-eight hour period of incarceration, ordered the defendant to perform 100 hours of community service. See General Statutes § 14-227a(h). It also placed the defendant on probation for a period of eighteen months and imposed as special conditions of probation that the defendant not operate a motor vehicle while his right to operate was under suspension, that he undergo such alcohol counseling as deemed appropriate by the department of adult probation, and that he complete the community service requirement within one year. The trial court also ordered the defendant to pay a fine of $500.

In disposing of the defendant's application for accelerated rehabilitation, the trial court placed the defendant in a probationary status for a period of eighteen months. This period of probation ran concurrently with the period of probation imposed as a result of the defendant's conviction. The defendant was ordered to perform twenty-five hours of community service in addition to the 100 hours ordered by the trial court under his conviction. ²

In June, 1993, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor or drugs. In the same proceeding, the defendant was also convicted of operating a motor vehicle while his license was under suspension. ³ See General Statutes § 14-215(c). The defendant was presented on a charge of violation of probation with respect to his prior driving while under the influence conviction. His probation was revoked and he was committed to the custody of the commissioner of correction for the violation of probation. The court was neither asked to take, nor did it take, any action to terminate the accelerated rehabilitation probationary period.

On June 14, 1994, the defendant appeared before the trial court seeking a dismissal of the failure to appear charge for which accelerated rehabilitation had been granted. The state's attorney reported to the court that the defendant had failed to complete satisfactorily the period of accelerated rehabilitation. The defendant, through counsel, conceded that he had been subsequently arrested and convicted as previously set forth, but asserted that it would be unfair not to dismiss the underlying case. ⁴ The trial court dismissed the underlying charge of failure to appear for which the defendant had been granted accelerated rehabilitation, and this appeal follows.

I

Before we begin our discussion of the substantive claims of the parties, we must first resolve an assertion by the defendant that the state failed to preserve adequately its claims before the trial court. Specifically, the defendant asserts that this case is not reviewable because the state failed to raise before the trial court its claim that the trial court lacks discretion to dismiss a case under General Statutes (Rev. to 1993) § 54-56e, ⁵ and that the statute mandates that the case be brought to trial. We are unpersuaded.

In the colloquy between the trial court and the assistant state's attorney, the state clearly claims that the case involved an unsatisfactory completion of accelerated rehabilitation. ⁶ Further, the defendant conceded that he had, during the period of accelerated rehabilitation, again been arrested and convicted of operating while under the influence and had also been convicted of operating a motor vehicle while his right to operate was under suspension. ⁷ In light of these admissions in open court, it is disingenuous for the defendant to now claim that the state failed to preserve this claim properly. See State v. Roberson, 165 Conn. 73, 78, 327 A.2d 556 (1973). On the basis of our review of the record, we conclude that the state's claim was preserved and is properly before us. ⁸

II

The state first asserts that the trial court acted improperly when it dismissed the underlying charge of failure to appear, where the defendant had failed to complete his period of accelerated rehabilitation because of his conviction of two offenses during the period of the accelerated rehabilitation program. The state posits that where a defendant fails to complete satisfactorily the conditions of accelerated rehabilitation, the statute mandates that the underlying charges be brought to trial. Alternatively, the state asserts that the trial court abused its discretion in dismissing the underlying charge. The defendant asserts, however, that the trial court had discretion to dismiss the charge pursuant to its power under General Statutes § 54-56, ⁹ or, alternatively, that the trial court was vested with discretion to dismiss the charge under § 54-56e. ¹⁰ Finally, the defendant asserts that because the state failed to act at the time of the defendant's subsequent convictions, it waived its right to assert that the defendant failed to complete satisfactorily his period of accelerated rehabilitation. ¹¹

We begin our analysis of whether the statutory language of § 54-56e, "If the defendant ... violates such conditions, his case shall be brought to trial," is mandatory or directory, by repeating the well established principles of statutory interpretation. It is our function when construing a statute, to determine and give effect to the intent of the legislature. See Doe v. Statewide Grievance Committee, 240 Conn. 671, 680, 694 A.2d 1218 (1997). "While we generally will not look for interpretative guidance beyond the language of the statute when the words of that statute are plain and unambiguous ... our past decisions have indicated that the use of the word 'shall,' though significant, does not invariably create a mandatory duty. Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 278, 492 A.2d 180 (1985); Tramontano v. Dilieto, 192 Conn. 426, 433-34, 472 A.2d 768 (1984). Hall Manor Owner's Assn. v. West Haven, 212 Conn. 147, 152, 561 A.2d 1373 (1989). In order to determine whether a statute's provisions are mandatory we have traditionally looked beyond the use of the word 'shall' and examined the statute's essential purpose.... The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience.... If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words.... Katz v. Commissioner of Revenue Services, 234 Conn. 614, 617, 662 A.2d 762 (1995)." (Citations omitted; internal quotation marks omitted.) Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 445-46, 685 A.2d 670 (1996). A statutory provision of this type directs what is to be done but does not invalidate any action taken for failure to comply. See Katz v. Commissioner of Revenue Services, supra, at 617, 662 A.2d 762. "Furthermore, if there is no language that...