State v. Custodio

STATE OF CONNECTICUT v. PEDRO CUSTODIO

SC 18767

Supreme Court of Connecticut

Argued September 27, 2012

Officially released November 27, 2012

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Harper and Vertefeuille, Js.

Temmy Ann Pieszak, chief of habeas corpus services, for the appellant (defendant).

Robert J. Scheinblum, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, Eva Lenczewski, supervisory assistant state's attorney, and Catherine Brannelly Austin, senior assistant state's attorney, for the appellee (state).

Opinion

PER CURIAM. In this certified appeal, the defendant, Pedro Custodio, appeals from the judgment of the Appellate Court affirming the finding and order of the trial court, which committed the defendant to the custody of the commissioner of mental health and addiction services (commissioner) and required the defendant to submit to periodic competency examinations pursuant to General Statutes (Rev. to 2009) § 54-56d (m).¹ We granted the defendant's petition for certification to appeal, limited to the following issues: "1. Did the Appellate Court properly determine that . . . Public Acts 1998, No. 98-88, § 2 [(P.A. 98-88), which amended General Statutes (Rev. to 1997) § 54-56d (m) by authorizing a court to order periodic competency examinations in certain circumstances],² applied retroactively?" State v. Custodio, 300 Conn. 934, 17 A.3d 70 (2011). "2. Did the Appellate Court properly determine that the trial court had properly exercised in personam jurisdiction over the defendant, when it was conceded that the defendant had no notice of the proceeding [that] resulted in an arrest warrant for failure to appear?" Id. "3. Did the Appellate Court properly determine that the trial court did not abuse its discretion in ordering periodic competency examinations] when there was no possibility that the defendant will ever regain competence?" Id. We answer these questions in the affirmative and, accordingly, affirm the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following relevant facts and procedural history. "On Cherry Street in [the city of] Waterbury in 1991, the defendant allegedly fired multiple gunshots into the neck of the victim, Americo Pagan Cruz, causing his death. He subsequently was arrested and charged . . . with murder in violation of General Statutes § 53a-54a. Following a hearing, the court found that the state had presented sufficient evidence to find probable cause to believe that the defendant [had] committed the crime charged. A competency hearing thereafter was conducted on October 25, 1991, pursuant to General Statutes (Rev. to 1991) § 54-56d, at the conclusion of which the court found that the defendant was incompetent and ordered that efforts be made to restore his competency. On February 10, 1992, the court conducted a second competency hearing. At its conclusion, the court found that the defendant remained incompetent and that there was no substantial probability that he would regain competence. Accordingly, the court ordered that he be committed to the custody of the [commissioner] for purposes of applying for civil [commitment]. The defendant subsequently was civilly committed and placed in the Fairfield Hills Hospital in . . . 1992.

"Months later and unbeknownst to the court or the [state], the defendant was released from that hospitaland thereafter lived at various residences in Waterbury for approximately eighteen years. At all times, his criminal case remained open on the criminal docket of the Superior Court for the judicial district of Waterbury.

"In July, 2010, the clerk's office brought the defendant's open criminal file to the attention of the court. In response, the court, Damiani, J., ordered a hearing to be held on July 26, 2010. Because notice of the hearing was not provided to the defendant, he did not appear. At that hearing, the [supervisory assistant] state's attorney explained that she recently had learned, 'to . . . [her] horror . . . that [the defendant had been] released later in 1992. . . . We were never notified, the state was never notified, [and] the clerk's office was never notified. This file apparently is kept in their statistical list of . . . somewhat active cases, and no one had any idea that this had occurred.' [The state] therefore requested that a failure to appear warrant issue. [Defense counsel] objected to that request due to the lack of notice to the defendant. In granting the state's request, the court stated: 'Here, we have a man who's charged with murder, an alleged shooting, going back to 1991; he's found to be not competent and not restorable, [and] he's committed to the [commissioner] . . . . He gets committed. They then release him in 1992. He never tells the court one way or another . . . [and] doesn't contact his lawyer, the [state] or the court. They release him [into] the community. [The defendant], if he's still alive, has been walking as a free man for the past eighteen years, charged with murder. I understand . . . if in fact the state went to trial on a failure to appear charge [that it] could not prove a wilful, intentional failure to appear, but I have to set the wheels in motion to find [the defendant], to get him before me, [and] to order another competency examination]; if he is not restorable, see where he's going to go so we know exactly where he is, rather than having him walking the streets and, God forbid, something happen[s]. . . . If [the defendant] comes in, I'll dismiss the failure to appear [charge] . . . .' The defendant was arrested later that day.

"On July 27, 2010, the defendant was arraigned. At the outset, the court noted that, '[a]t present, [the defendant] is charged with murder and failure to appear in the first degree.' Acknowledging that the defendant was not provided notice of the prior day's proceeding, the court dismissed the failure to appear charge. As to the remaining murder charge, the court advised the defendant of his rights, ordered a bond in the amount of $200,000 and scheduled a competency hearing for August 24, 2010.

"On August 2, 2010, the defendant filed an objection to the proceedings predicated on lack of personal jurisdiction due to his allegedly unlawful arrest and the retroactive application of [P.A. 98-88, § 2]. The defen-dant also filed a motion to recuse the trial judge and an offer to participate in voluntary reexamination of his competency, subject to certain conditions. After hearing argument thereon, the court denied those motions.

"The court held a competency hearing on August 24, 2010. At its conclusion, the court found that the defendant remained incompetent and that there was not a substantial probability that his competence could be restored. Pursuant to [General Statutes (Rev. to 2009)] § 54-56d (m), the court ordered that the defendant be committed to the custody of the commissioner, that he be provided services in a less restrictive setting than civil confinement and that he submit to periodic competency [examinations]." State v. Custodio, 126 Conn. App. 539, 542-45, 13 A.3d 1119 (2011).

The defendant appealed to the Appellate Court from the trial court's finding and order, claiming, inter alia, that the trial court "improperly (1) concluded that [General Statutes (Rev. to 2009)] § 54-56d (m) [which included the provisions in P.A. 98-88, § 2, pertaining to periodic competency examinations] applies retroac-tively,³ (2) concluded that it possessed personal jurisdiction over him, [and] (3) ordered him to submit to periodic competency [examinations] . . . ." Id., 542. With respect to his first claim, the defendant maintained that P.A. 98-88, § 2, was substantive in nature and, therefore, could not be applied to him retroactively. See id., 549. The Appellate Court disagreed, concluding that P.A. 98-88, § 2, was remedial in nature and, therefore, "implicate[d] the presumption that such statutes 'are intended to apply retroactively absent a clear expression of legislative intent to the contrary . . . .' " Id., 553-54, quoting State v. Skakel, 276 Conn. 633, 680, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S. Ct. 578, 166 L. Ed. 2d 428 (2006). Specifically, the Appellate Court concluded: "We are mindful of our observation in [State v. Curtis, 22 Conn. App. 199, 205, 576 A.2d 1299 (1990)] that the imposition of periodic competency evaluations on a defendant is not an inconsequential matter. . . . At the same time . . . the defendant in the present case stands accused of murder and is subject to certain procedures set forth by the...