State Of Conn. v. Alison Begley. State Of Conn., Nos. 28754, 28809, 28897, 28882.

122 Conn.App. 546

2 A.3d 1

STATE of Connecticut

v.Alison BEGLEY.

State of Connecticut

v.Rocco T. Capobianco.

State of Connecticut

v.Nicholas J. DeLuca, Jr.

State of Connecticut

v.Michael D. Price.

Nos. 28754, 28809, 28897, 28882.

Appellate Court of Connecticut.

Argued Nov. 18, 2008.

Decided July 20, 2010.

Charles F. Willson, for the appellants (defendants).

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Adam B. Scott, supervisory assistant state's attorney, for the appellee (state).

FLYNN, C.J., and ROBINSON and WEST, Js. ^*

ROBINSON, J.

The defendants, Alison Begley, Rocco T. Capobianco, Nicholas J. DeLuca, Jr., and Michael D. Price, appeal from the trial court's denial of their respective motions to open ¹ the “judgments” ² that were rendered against them for the infraction of possession of alcohol by a minor in violation of General Statutes (Rev. to 2007) § 30-89. On appeal, the defendants argue that the court's denial of their motions to open the judgments was both an improper application of relevant law and an abuse of discretion. We dismiss the defendants' appeals.

The record reveals the following facts and procedural history. On March 3, 2007, members of the Manchester police department, responding to a noise complaint, disbanded a party of mostly underage persons. The defendants, who were all under the age of twenty-one at the time, ³ were present at the party and were issued tickets charging each of them with the infraction of possession of alcohol by a minor in violation of § 30-89(b). ⁴ The tickets each carried a fine of $136 ⁵ and provided that the defendants were to check either the box on the tickets reading, “I elect to pay the amount,” or the box reading, “I elect to plead not guilty.” The defendants all paid their fines, and the central infractions bureau (bureau) received each payment within twenty days of the tickets being issued. ⁶ It is unclear from the record whether any of the defendants signed the complaint ticket in either of the designated plea boxes before paying the fine. ⁷

Soon thereafter, the defendants each received notices from the department of motor vehicles, stating that their driver's licenses were being suspended for a period of 150 days pursuant to General Statutes (Rev. to 2007) § 14-111e. ⁸ Each defendant subsequently filed a motion to open the “judgment” with the Superior Court, all of which were denied. ⁹ Thereafter, each defendant filed a motion for articulation of the basis of the court's denial of their motions to open the judgments, and the court issued an articulation on December 3, 2007. Begley appealed on April 27, 2007, Capobianco appealed on May 11, 2007, and both Price and DeLuca appealed on June 11, 2007. Begley filed a motion to consolidate the four appeals on June 29, 2007, which this court granted on August 13, 2007.

On appeal, the defendants claim that the court improperly denied their motions to open the judgments because it misapplied the law and abused its discretion. Specifically, the defendants argue that (1) their pleas of nolo contendere to the infraction of possession of alcohol by a minor were not submitted to the bureau in compliance with the relevant statutory provisions and were, therefore, a nullity ab initio, (2) they were not afforded their rights to due process of law as enshrined in the constitution of Connecticut and in the United States constitution, (3) they were induced to pay their fines on the false representations of the police officers issuing the tickets and (4) the court abused its discretion by making clearly erroneous findings of fact. The state argues that the court lacked subject matter jurisdiction to consider the defendants' motions to open the judgments because there is no statutory framework providing the court with the authority to consider any motions from the defendants after they had paid their fines and that we lack subject matter jurisdiction to hear these appeals because they are moot. In the alternative, the state argues that the court applied the law correctly and did not abuse its discretion.

Before reaching the merits of the defendants' appeals, we first determine whether the cases have been rendered moot because the defendants have already paid their respective fines. “Mootness is a threshold issue that implicates subject matter jurisdiction, which imposes a duty on the court to dismiss a case if the court can no longer grant practical relief to the parties.... Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties.... [T]he existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.... Our Supreme Court, however, has allowed us to retain jurisdiction where the matter being appealed creates collateral consequences prejudicial to the interests of the appellant, even though developments during the pendency of the appeal would otherwise render it moot....

“[T]o invoke successfully the collateral consequences doctrine, the litigant must show that there is a reasonable possibility that prejudicial collateral consequences will occur. Accordingly, the litigant must establish these consequences by more than mere conjecture, but need not demonstrate that these consequences are more probable than not. This standard provides the necessary limitations on justiciability underlying the mootness doctrine itself. Whe[n] there is no direct practical relief available from the reversal of the judgment ... the collateral consequences doctrine acts as a surrogate, calling for a determination whether a decision in the case can afford the litigant some practical relief in the future.” (Citations omitted; internal quotation marks omitted.) Iacurci v. Wells, 108 Conn.App. 274, 276-77, 947 A.2d 1034 (2008).

In this case, the defendants have each paid their respective fines, rendering their appeals moot unless they have established that there is a reasonable possibility that prejudicial collateral consequences will occur. In this respect, the defendants aver that the suspension of their driver's licenses and the resulting increase in insurance premiums constitute such collateral consequences. Upon our review of the record, however, we conclude that the defendants have not provided this court with a record containing any evidence that any of them still have pending driver's license suspensions or that their insurance premiums will increase. Nor have any other collateral consequences been brought to our attention. Price and DeLuca filed motions with this court, requesting that we direct the commissioner of motor vehicles (commissioner) to stay their driver's license suspensions during the pendency of their appeals. This court denied the motions, and it is unclear whether Price and DeLuca had their suspensions stayed at any point. Without more, we are unable to determine, without speculating, whether there is a reasonable possibility that prejudicial collateral consequences will occur. ¹⁰ See id., at 283, 947 A.2d 1034, citing Smith-Lawler v. Lawler, 97 Conn.App. 376, 380, 904 A.2d 1235 (2006). Because this court will not speculate on what is not in the record, we decline to review this claim. See State v. Hermann, 38 Conn.App. 56, 68, 658 A.2d 148, cert. denied, 235 Conn. 903, 665 A.2d 904 (1995). Consequently, because the defendants have failed to produce a record on appeal that substantiates their claim that it is reasonably possible that adverse collateral consequences will befall them, there is not a basis on which we retain our jurisdiction.

In addition, we are not persuaded by the defendants' argument that their appeals are not moot because their payments of the fines were involuntary. See State v. Walczyk, 76 Conn.App. 169, 172-73, 818 A.2d 868 (2003) ( General Statutes § 54-96a, which dictates that payment of fines before Appellate Court hearing “shall vacate the appeal,” not applicable if fine payment involuntary).

In the first instance, it bears emphasis that § 54-96a does not apply to the current situation. That statute provides: “Any person appealing from the judgment of the Superior Court, adjudging him to pay a fine only, may pay the same at any time before the hearing in the Supreme Court or Appellate Court, without further cost, which payment shall vacate the appeal and restore the judgment.” General Statutes § 54-96a. In this case, however, it does not appear that the defendants were ever “adjudged” by the Superior Court. Indeed, the defendants in this case never appeared before a judge of the Superior Court, which stands in contradistinction to our precedent applying § 54-96a. See, e.g., State v. Ryder, 111 Conn.App. 271, 958 A.2d 797 (2008) (court accepted defendant's plea of nolo contendere and sentenced him to pay fine for infraction), aff'd after remand, 114 Conn.App. 528, 969 A.2d 818, cert. granted on other grounds, 292 Conn. 919, 974 A.2d 723 (2009); State v. Eastman, 92 Conn.App. 261, 884 A.2d 442 (2005) (same); State v. Walczyk, supra, at 172, 818 A.2d 868 (court found defendant guilty and sentenced him to pay fine); State v. Arpi, 75 Conn.App. 749, 818 A.2d 48 (2003) (court accepted defendant's plea of guilty and sentenced him to pay fine); State v. Henkel, 23 Conn.Supp. 135, 177 A.2d 684 (1961) (court found defendant guilty and sentenced him to pay fine).

Moreover, in addition to § 54-96a not being applicable to this case, State v. Walczyk, supra, 76 Conn.App. at 169, 818 A.2d 868, otherwise is distinguishable. In Walczyk, the defendant claimed that the court's actions led to his plea being involuntary, and the state did not contest the involuntary nature of the defendant's...