State v. Welwood

• Decision Date: 16 October 2001
• Docket Number: (SC 16377)
• Citation: 258 Conn. 425,780 A.2d 924
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. ARTHUR WELWOOD

258 Conn. 425

780 A.2d 924

STATE OF CONNECTICUT v. ARTHUR WELWOOD

(SC 16377)

Supreme Court of Connecticut.

Argued May 25, 2001.

Officially released October 16, 2001.

Sullivan, C. J., and Katz, Palmer, Vertefeuille and Ford, Js.

John M. Massameno, senior assistant state's attorney, with whom, on the brief was James E. Thomas, state's attorney, for the appellant (state).

Jon L. Schoenhorn, for the appellee (defendant).

Shelley R. Sadin filed a brief for the Connecticut Criminal Defense Lawyers Association as amicus curiae.

Opinion

SULLIVAN, C. J.

The central issue in this appeal is whether a sentencing court has subject matter jurisdiction to impose conditions of probation that remain in effect after the expiration of the probation. The defendant, Arthur Welwood, was charged with sexual assault in the first degree in violation of General Statutes (Rev. to 1989) § 53a-70,¹ three counts of sexual assault in the fourth degree in violation of General Statutes (Rev. to 1987) § 53a-73a,² and two counts of risk of injury to or impairing the morals of a child in violation of General Statutes (Rev. to 1987) § 53-21,³ in connection with a series of incidents that took place between 1988 and 1990. The alleged victims of the crimes were the defendant's two stepdaughters.

On July 12, 1991, the defendant entered into a plea agreement with the state and pleaded guilty to two counts of risk of injury to a child, and the state agreed to nolle the remaining charges. On September 13, 1991, the defendant was sentenced to ten years incarceration, execution suspended, and five years of probation with specific conditions. Pursuant to the conditions of probation, the defendant was to: (1) have no written, oral or physical contact with the minor victims, until they reached the age of twenty-one, unless, after a full hearing, a criminal judge ordered contact for therapeutic purposes only; (2) pay $7000 toward the past therapy bills of his natural daughter; (3) pay unreimbursed expenses for his natural daughter to an annual maximum of $2500 for a period of five years; (4) have no written, oral or physical contact with his natural daughter during probation unless she requested contact; (5) pay all unreimbursed medical and psychological expenses of the two victims until they reached the age of eighteen years; (6) obtain treatment through special services and abide by its conditions; (7) not reside at the family home, even if the two victims were not present there; (8) have no unsupervised contact with any other minor child under the age of sixteen years; (9) raise the issue of his alleged sexual abuse of his natural daughter during his treatment; and (10) enter into a written agreement concerning contact with the victims and payment of fees for their psychological care. The trial court noted that any violation of the defendant's treatment contract would be grounds for termination of treatment and referral back to the probation department. In accordance with the last condition of probation, the defendant signed an agreement that provided in relevant part: "1. I will have no contact of any kind, direct or indirect with the two natural children of my current wife ... who now are twelve years of age and eight years of age, until each of them reaches her twenty-first birthday...."⁴

Between October, 1996, and June, 1997, certain witnesses saw the defendant with one or both of his stepdaughters, neither of whom had yet reached age twenty-one. The witnesses gave statements to the state's attorney's office. In June, 1997, one year after the defendant's period of probation had expired without incident, the state filed a motion for contempt proceedings to enforce the plea agreement incorporated in the judgment. The trial court, Damiani, J., granted the motion on September 13, 1997, stating: "This court finds that the plea agreement was knowingly and voluntarily entered into by the defendant. Further, said agreement was incorporated into the court's judgment and sentence and is enforceable beyond the term of probation. Hence, criminal contempt proceedings may be initiated against [the defendant]." The state then filed an information alleging thirteen counts of criminal contempt by the defendant in violation of what were then §§ 7G (4)⁵ and 7M of the Practice Book.⁶ Judge Damiani then signed a warrant for the defendant's arrest.

Following his arrest, the defendant filed a motion to dismiss, claiming that the trial court lacked subject matter jurisdiction over postprobation conduct.⁷ The trial court, Maloney, J., concluded that the sentencing court had issued two distinct orders: (1) that the defendant refrain from contacting the victims until they reached age twenty-one; and (2) that the defendant enter into a written agreement with the state that he have no such contact. The trial court further determined that, "[i]n the absence of a contract or some agreement by the defendant, it is clear that the court had no power to enter a judgment imposing restrictions on the defendant's activities after the expiration of his probation," where the period of probation to which the defendant had been sentenced was the statutory maximum. General Statutes (Rev. to 1991) §§ 53a-29⁸ and 53a-30.⁹ The trial court also concluded that the defendant could not agree to waive objections to the court's continuing jurisdiction. State v. Jones, 166 Conn. 620, 627, 353 A.2d 764 (1974) (jurisdiction "is a matter of law and can neither be waived nor conferred by consent of the accused").¹⁰ Accordingly, the trial court granted the defendant's motion to dismiss.

On September 13, 1999, the state appealed to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.¹¹ The state claims that for a variety of reasons, the trial court improperly dismissed the contempt proceedings. First, the state claims that the defendant was barred from challenging, in the contempt proceeding, the propriety of the original judgment, because the trial court had both personal jurisdiction over the defendant and subject matter jurisdiction over the criminal case, the no contact order was not "transparently invalid," and the defendant did not appeal the original sentence. Second, the state claims that the substantial interest in the finality of judgments militates against a collateral attack on the judgment nearly six years after it was rendered, notwithstanding the fact that the attack was premised on jurisdictional grounds. Third, the state contends that principles of res judicata and collateral estoppel preclude relitigation of the validity of both the original judgment of conviction and the state's postjudgment request for a criminal contempt referral, neither of which the defendant appealed. Fourth, the state maintains that the trial court has the power to render and enforce postprobation terms of plea agreements because: (1) Connecticut courts favor plea agreements that are negotiated fairly and are not against public policy; (2) Connecticut courts have determined that both parties to a plea agreement are entitled to the enforcement of its terms and that the authority to enforce such agreements lies with the judiciary; (3) such power flows from the court's constitutional and statutory jurisdiction; and (4) parties to plea agreements who, like the defendant, have reaped substantial benefits under the agreements should be estopped from attacking those agreements. Fifth, the state claims that the doctrine of separation of powers is not implicated here because: (1) the enforcement of a plea agreement is not "punishment" beyond that authorized by the legislature; (2) postprobationary terms of a plea agreement do not constitute an extension of probation beyond that authorized by the legislature; and (3) once a plea agreement has been incorporated into a court judgment, the court has the inherent power to enforce its decree by way of a criminal contempt action.¹² We conclude that the sentencing court exceeded its jurisdiction by imposing probationary conditions that continued beyond the maximum period of probation. Accordingly, we affirm the judgment of the trial court dismissing the criminal contempt action against the defendant for lack of subject matter jurisdiction.

As a preliminary matter, we set forth the 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.... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.... [O]ur review of the trial court's ultimate legal conclusion and resulting grant of the motion to dismiss will be de novo." (Internal quotation marks omitted.) Southern New England Telephone Co. v. Dept. of Public Utility Control, 64 Conn. App. 134, 137, 779 A.2d 817 (2001).

The defendant seeks to attack collaterally two of the conditions of probation imposed by the sentencing court, namely, that the defendant have no contact with the victims until they reach age twenty-one, and that the defendant enter into a written agreement with the state to that effect. The legislature, by statute, has limited the term of probation that the sentencing court may impose to five years.¹³ The sentencing court recognized that its jurisdiction over the defendant, and, therefore, its ability to enforce the conditions of probation, ended after the five year period of probation.¹⁴ Accordingly, rather than rely on the no-contact condition of probation, which it would be unable to enforce once probation had ended, the sentencing court also required that the defendant enter into the written agreement with the state, which the state could seek to enforce after the term of probation, and the court's jurisdiction, had ended. We agree with the trial court that the sentencing court had no...