State v. Treat, 14069

• Decision Date: 05 October 1995
• Docket Number: No. 14069,14069
• Citation: 38 Conn.App. 762,664 A.2d 785
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Gilbert TREAT.

Page 785

664 A.2d 785

38 Conn.App. 762

STATE of Connecticut v. Gilbert TREAT.

No. 14069.

Appellate Court of Connecticut.

Argued June 5, 1995.

Decided Aug. 15, 1995.

Certification Denied Oct. 5, 1995.

Deborah DelPrete Sullivan, Assistant Public Defender, for appellant (defendant).

Lisa Herskowitz, Deputy Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, and James G. Clark, Assistant State's Attorney, for appellee (State).

Before DUPONT, C.J., and FOTI and HEIMAN, JJ.

DUPONT, Chief Judge.

The defendant appeals from the judgment of the trial court revoking his probation and committing him to the custody of the commissioner of correction. The trial court imposed the seven years suspended portion of a ten year sentence that the defendant had received for the conviction of two counts of sexual assault in the third degree in violation of General Statutes § 53a-72a(a)(2). ¹ The defendant claims that the trial court (1) failed to use the proper standard of proof in determining whether the defendant was in violation of probation pursuant to GENERAL STATUTES § 53A-32, (2)² lacked sufficient evidence to support its finding of violation of probation, and (3) abused its discretion by revoking the defendant's probation. We affirm the judgment of the trial court.

Certain facts are relevant to this appeal. After serving three years of his sentence, the defendant was released from incarceration and began his probation on August 30, 1991. The defendant was not initially required to receive sex offender treatment as a condition of his probation. On October 9, 1991, the defendant's probation officer filed a motion to modify the defendant's probation to include a special condition requiring the defendant to undergo sex offender treatment. The trial court granted this motion on November 27, 1991. The defendant commenced sex offender treatment on March 4, 1992, but was discharged from the program on April 8, 1992, for failing to abide by the terms of his treatment contract. The defendant was subsequently arrested pursuant to a warrant and charged with two counts of violation of probation under § 53a-32. The first count charged that the defendant exposed himself. The second count charged that the defendant violated his probation by failing to comply with the requirements of sex offender treatment. The alleged conduct in the first count was not, however, the basis of the trial court's finding of a violation of probation. The trial court specifically found the basis of the violation was the defendant's failure to comply with sex offender treatment, a special condition of his probation.

On October 29, 1992, and November 10, 1992, the trial court conducted a violation of probation hearing. ³ The trial court reasonably could have found sufficient evidence to support a finding that the defendant had violated his probation. Patrick Liddle, a staff therapist with the sex offender treatment program, gave the following uncontroverted testimony. Liddle performed an initial evaluation of the defendant in January, 1992, after which the defendant signed a treatment contract. The contract expressly provided notice that any violation of the conditions of the contract could be grounds for termination from the sex offender treatment program at the discretion of the staff. One of the special conditions listed in the contract was "no unsupervised contact with children under 18 years of age." Liddle testified that the defendant had become increasingly argumentative with the staff and in group therapy. On at least two occasions the defendant bumped into female personnel in the hallways. Furthermore, the defendant insisted that he could do what he wanted, including having contact with children, and that the staff could not tell him what to do.

During treatment sessions, Liddle spoke with the defendant about the unacceptability of his behavior. Liddle informed the defendant that to remain in the program, he would have to honor the contract he had signed proscribing any unsupervised contact with children. The defendant responded by insisting that he had had contact with children, and would continue to have contact with children. The defendant was subsequently discharged from the program on April 8, 1992. ⁴

Peter Gandelman, a therapist with the sex offender treatment program at the Veteran's Memorial Medical Center, also testified at the revocation hearing. Gandelman testified that the defendant came to his office on September 14, 1992, seeking to be admitted to the sex offender treatment program. Although Gandelman usually spends three or four hours evaluating a sex offender treatment candidate, he was able to determine after only forty-five minutes that the defendant was not an appropriate candidate for community based treatment. Gandelman described the defendant as being in denial that he currently had a problem. During the interview, the defendant acknowledged that he had sexually abused children, including his own son, but then minimized his offenses and did not show any remorse. Gandelman concluded that, in light of the defendant's history, and his minimization of and refusal to accept responsibility for his crimes, the defendant was a danger to the community and was not an appropriate candidate for community based treatment.

The trial court found that the defendant had violated the special condition of probation requiring sex offender treatment. By finding a violation of probation, and also by finding the defendant to be a risk and danger to society, the trial court impliedly found that the beneficial purposes of probation were not being served, State v. DeMasi, 34 Conn.App. 46, 55, 640 A.2d 138, cert. denied, 230 Conn. 906, 644 A.2d 920 (1994); and therefore imposed the seven years suspended portion of the defendant's original sentence.

"[U]nder § 53a-32, a probation revocation hearing has two distinct components.... The trial court must first conduct an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition of probation. 'At such hearing the defendant shall be informed of the manner in which he is alleged to have violated the conditions of his probation or conditional discharge, shall be advised by the court that he has the right to retain counsel and, if indigent, shall be entitled to the services of the public defender, and shall have the right to cross-examine witnesses and to present evidence in his own behalf.' General Statutes § 53a-32(a). If the trial court determines that the evidence has established a violation of a condition of probation, then it proceeds to the second component of probation revocation, the determination of whether the defendant's probationary status should be revoked. On the basis of its consideration of 'the whole record,' the trial court 'may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence.' General Statutes § 53a-32(b). In making this second determination, the trial court is vested with broad discretion. State v. Smith, 207 Conn. 152, 167, 540 A.2d 679 (1988). ('[a] defendant who seeks to reverse the exercise of judicial discretion, assumes a heavy burden')." (Citation omitted.) State v. Davis, 229 Conn. 285, 289-90, 641 A.2d 370 (1994).

The defendant claims that the trial court failed to use the proper standard of proof in determining that the defendant violated his probation. We disagree.

In 1992, when the trial court made its decision, the case law defining the proper standard of proof for probation revocation hearings had yet to be enunciated by either this court or our Supreme Court. ⁵ In State v. Davis, supra, 229 Conn. 285, 641 A.2d 370, our Supreme Court held that a trial court may not find a violation of probation unless it finds that the reasonable predicate facts underlying the violation have been established by a preponderance of the evidence at the hearing. That is, "the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation." Id. at 302, 641 A.2d 370. The Davis court remanded the case to the trial court for a new revocation hearing because it could not determine from its review of the record what standard of proof the trial court had applied. ⁶

Here, the trial court did not indicate what standard of proof it applied at the revocation hearing. Accordingly, the state filed a motion for articulation, asking that the trial court clarify whether it applied the fair preponderance of the evidence standard in determining that the state had proven a violation of probation. ⁷ The trial court did issue an articulation indicating that, although at the time of the hearing it believed that a reasonable satisfaction standard applied, there was "very little question" at the time of the hearing that a violation of probation had been established and that the violation of probation was proven "by at least a preponderance of the reliable and probative evidence." (Emphasis in original.) ⁸

In reaching this conclusion, the trial court referred to its original decision in which it stated that "there is really very little question in my mind that the state has established a violation of probation here and I will so find that a violation has been established." Ordinarily, the "litigants and the factfinder must know at the outset of a given proceeding how the risk of error will be allocated, [therefore] the standard of proof necessarily must be calibrated in advance." Santosky v. Kramer, 455 U.S. 745, 757, 102 S.Ct. 1388, 1397, 71 L.Ed.2d 599 (1982). "Retrospective case-by-case review cannot preserve fundamental fairness when a class of proceedings is governed by a constitutionally defective evidentiary standard." Id. Here, in the articulation of its...