State v. Daniels

248 Conn. 64

726 A.2d 520

STATE OF CONNECTICUT v. DONALD DANIELS

(SC 15992)

Supreme Court of Connecticut.

Argued November 3, 1998.

Officially released March 16, 1999.

Callahan, C. J., and Borden, Berdon, Norcott, Katz, Palmer and McDonald, JS. Kirstin B. Coffin, special public defender, for the appellant (defendant).

Bruce R. Lockwood, deputy assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Robin Cutuli and David Zagaja, assistant state's attorneys, for the appellee (state).

Opinion

KATZ, J.

The defendant, Donald Daniels, appeals from the judgment of the trial court revoking his probation pursuant to General Statutes § 53a-32.¹ On appeal, we must resolve two issues. Initially, we must determine whether the defendant's Alford plea,² entered subsequent to the revocation of his probation, renders this appeal moot. We conclude that it does not. Additionally, we must determine whether the state, at the probation revocation hearing, had presented sufficient evidence to prove, by a preponderance of the evidence, that the defendant had violated the conditions of his probation. We conclude that the state satisfied its burden of proof and, therefore, we affirm the judgment of the trial court revoking the defendant's probation.

The following facts and procedural history are pertinent to this appeal. On September 29, 1995, following his conviction for possession of narcotics in violation of General Statutes § 21a-279 (a),³ the defendant was sentenced to three years of incarceration, execution suspended, and placed on probation for three years. One of the conditions of probation required the defendant to obey all "criminal law[s] of the United States, this state, or any other state or territory."⁴

On July 15, 1996, the defendant was arrested for allegedly breaking into an automobile in a parking lot in downtown Hartford. As a result, he was charged with criminal mischief in the third degree in violation of General Statutes § 53a-117,⁵ burglary in the third degree in violation of General Statutes § 53a-103,⁶ larceny in the sixth degree in violation of General Statutes § 53a-125b⁷ and tampering with a motor vehicle in violation of General Statutes § 53a-119b (c).⁸

On the basis of this alleged criminal conduct, the state charged the defendant with violation of his probation, under § 53a-32; see footnote 1 of this opinion; and a probation revocation hearing commenced on June 24, 1997. Testifying at the hearing, Jesus Martinez, the owner of the vehicle, stated that after he and a friend, Denise Ayala, had left a Hartford club, they observed a person inside Martinez' vehicle as they approached it. Martinez left the scene to summon the police and, upon his return, found that the defendant had exited his vehicle and was in the middle of the parking lot. After the defendant had fled the scene, Martinez discovered that one of the windows of his vehicle was broken, and a compact disc player and some tapes were missing from the automobile. Shortly thereafter, while riding in a police patrol car, Martinez saw the defendant on the street and identified him as the perpetrator.

On July 9, 1997, the trial court found that the defendant had violated the conditions of his probation and sentenced him to serve thirty-three months of the three year period of incarceration that previously had been imposed and suspended. The defendant appealed to the Appellate Court from the judgment of the trial court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c). During the pendency of this appeal, the defendant pleaded guilty to burglary in the third degree under the Alford doctrine in connection with the incident regarding Martinez' vehicle. See footnote 2 of this opinion. Additional facts will be set forth as necessary.

On appeal, the defendant claims that the trial court: (1) improperly found that the state had proved, by a preponderance of the evidence, that the defendant had violated the conditions of his probation; and (2) violated the defendant's due process rights by admitting into evidence Martinez' out-of-court identification of the defendant. The state, however, asserts that the defendant's Alford plea renders the appeal moot. Alternatively, the state disputes the defendant's claims, arguing that: (1) the state presented sufficient evidence of the defendant's probation violation; and (2) the court should not reach the defendant's unpreserved due process claim.

We conclude that this appeal is not moot. As to the defendant's first claim, we conclude that the trial court properly found that the state had satisfied its burden of proof. We decline to review the defendant's due process claim, however, because it fails to satisfy the reviewability portion of the four part test for unpreserved claims that we enunciated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

I

Before addressing the defendant's claims on the merits, we must first determine whether the defendant's Alford plea, entered subsequent to the probation revocation hearing that underlies this appeal, renders this appeal moot. "Mootness implicates [this] court's subject matter jurisdiction and is thus a threshold matter for us to resolve.... It is a well-settled general rule that the 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.... An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal.... When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot." (Citations omitted; internal quotation marks omitted.) Ayala v. Smith, 236 Conn. 89, 93-94, 671 A.2d 345 (1996).

The state contends that the present appeal is moot because the trial court can grant the defendant no practical relief. According to the state, if the court were to agree with the defendant's claims on appeal, the defendant could be granted a new probation revocation hearing. The state asserts, however, that the defendant's plea of guilty under the Alford doctrine would estop him from asserting his innocence at the new hearing. Essentially, the state argues that we can provide no practical relief to the defendant because a reversal of the trial court's finding that the defendant had violated his probation would not improve the defendant's prospects. Therefore, according to the state, the defendant's "conviction controls the outcome of any second probation revocation hearing [and, therefore], the defendant's appeal is moot."

The defendant argues that the appeal is not moot because a finding that the evidence was insufficient to establish a violation of probation would entitle him to a judgment of acquittal for the violation of probation charge as well as the underlying offenses. Specifically, the defendant argues that if the court were to conclude that "proof of evidence of felonious conduct [was] not sufficient to establish a violation of probation, proof of such evidence [would] certainly not [be] sufficient to sustain a criminal conviction for such felonious conduct," because the burden of proof in a criminal prosecution presents the state with a significantly higher threshold to meet than does the burden in a violation of probation proceeding.⁹ The defendant asserts, therefore, that because an acquittal on all charges would clearly afford the defendant practical relief, this appeal is not moot. We agree with the defendant that his appeal is not moot, although we do so for a different reason. Even if we were to agree with the state's contention that the defendant would be entitled only to a new hearing at which the violation of probation would be predetermined by his conviction pursuant to his Alford plea, we do not agree that holding such a hearing would be a pointless endeavor, because the trial court would have the discretion to impose a different disposition. Therefore, practical relief could await the defendant following a determination that he had violated a condition of his probation.

We have stated: "[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.... 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).¹⁰ 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)...." (Citation omitted; internal quotation marks omitted.) State v. Davis, 229 Conn. 285, 289-90, 641 A.2d 370 (1994). We recognize that the defendant's conviction based on his Alford plea would establish a violation of the conditions of the defendant's probation, thereby significantly lightening the state's burden under the first component, the evidentiary phase, of a new probation revocation hearing.¹¹ It is the second component, the sentencing phase, however, under which the defendant plausibly may find practical relief. Although a criminal conviction "`affords a more than sufficient basis...