State v. Denya

986 A.2d 260

294 Conn. 516

STATE of Connecticut v. Robert G. DENYA.

No. 18182.

Supreme Court of Connecticut.

Argued March 16, 2009.

Decided January 26, 2010.

Bruce R. Lockwood, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Anne F. Mahoney, senior assistant state's attorney, for the appellant (state).

David R. Kritzman, Manchester, for the appellee (defendant).

ROGERS, C.J., and NORCOTT, KATZ, PALMER and VERTEFEUILLE, Js.^*

PALMER, J.

The sole issue raised by this certified appeal is whether the Appellate Court properly reversed the order of the trial court purporting to clarify a condition of probation that the trial court previously had imposed on the defendant, Robert G. Denya, and that required the defendant to submit to electronic monitoring. In reversing the trial court's order for an abuse of discretion, the Appellate Court concluded, first, that the trial court had modified rather than clarified the conditions of the defendant's probation and, second, that the court had done so without good cause in violation of General Statutes § 53a-30.¹

State v. Denya, 107 Conn.App. 800, 812-13, 819, 946 A.2d 931 (2008). We granted the state's petition for certification to appeal limited to the issue of whether the Appellate Court properly concluded that the trial court's order constituted an improper modification of the conditions of the defendant's probation.² State v. Denya, 288 Conn. 906, 907, 953 A.2d 654 (2008). We agree with the state that the trial court properly clarified rather than modified the conditions of probation that it previously had imposed and, therefore, that the requirements of § 53a-30 are inapplicable. Accordingly, we reverse the judgment of the Appellate Court.

The following undisputed facts and procedural history are set forth in the opinion of the Appellate Court. "In December, 1998, the defendant pleaded guilty to three counts of risk of injury to a child ... and three counts of sexual assault in the fourth degree.... The court [Byrne, J.] accepted the pleas and found the defendant guilty of these crimes. In March, 1999, the court imposed a total effective sentence of ten years incarceration, suspended after three years, followed by ten years of probation with special conditions. The court ordered the defendant to participate in any sex offender treatment or counseling deemed necessary by the office of adult probation and to register as a sex offender. The court prohibited him from having any contact with any children younger than age sixteen, the victim or any member of the victim's family.

"In March, 2001, the defendant was released from incarceration and began serving the probation portion of his sentence. In January, 2004, the defendant was arrested and charged with violating the terms of his probation on at least two specific occasions. The matter was tried [to] the court, Mullarkey, J., which found that, on one occasion, the defendant was visiting an acquaintance in South Windsor at the residence she shared with a family that included two children who were younger than age sixteen. On that occasion, the defendant remained in the residence for approximately two hours with the children after they returned home from school. The court also found that, on another occasion, the defendant, who provides wallpapering services by profession, provided an estimate for and worked in a residence knowing that an eleven year old girl resided there with her family.

"At the end of the adjudicative phase of the [probation violation] proceeding, the court found that the defendant had violated the special conditions of his probation but classified the two violations as technical in nature. There was no allegation, nor any evidence, that the defendant had engaged in any type of sexual or [other] inappropriate conduct during these separate incidents. The court, however, found that the defendant had lied about these incidents to his probation officer, Frank Jeney. The evidence was uncontroverted that Jeney instructed the defendant not to take jobs in any home where a child resided and that he was to maintain for review by Jeney an activity log, attesting to his whereabouts when away from home. When Jeney learned about the incident in South Windsor and confronted the defendant, the defendant first told Jeney that he was never in the residence when the children were there and, later, stated that he had immediately departed from the residence as soon as the children returned home from school. Additionally, the evidence was uncontroverted that the defendant informed Jeney about the job in West Hartford but, in his activity log, concealed the fact that there was at least one child living at that residence.

"In the dispositional phase of the violation of probation proceeding, the court described the two instances as more than incidental in nature. The court deemed the incidents to be quite troublesome because the defendant attempted to conceal them from Jeney and, with regard to both instances, they occurred in a residence where children lived rather than in a public place. The court stated that `this deceptive behavior on his part makes the court believe that the rehabilitative and beneficial aspects of probation are no longer being met.'

"In an oral ruling,³ the court stated: `I am going to reopen the original sentence [and] reimpose the original sentence of ten years, suspended after three [years]. However, I am going to increase the probation to the maximum term of thirty-five years as well as order sex offender registration, which, in your case, can be for life ... [a]s well as giving a DNA [sample] and other identification samples to the department of public safety. My point here is, by my calculations, even if I gave you the maximum sentence today, you would be out in 5.9 years. This probation will carry you until you are eighty-nine [years old].

"`[A] condition of that probation is [that] you will not have any contact directly [or] indirectly with the victim, her family, including her grandmother. You will not go within one mile of their residences, places of work, places of recreation and those places [of] schooling. Those places will change probably over the next thirty-five years.... [Y]ou have already served two years of probation, [so your term of probation will] be about thirty-three years. And the [office of adult] probation ... will update [the victim and her family].

"`Number two, you will submit to and pay for such electronic digital global positioning or whatever other service [the office of adult] probation deems appropriate, and if [it] deem[s] you capable, you will pay for such service to enforce the restrictions on your going anywhere near this family.

"`As far as your work is concerned, you are banned from working or estimating your jobs in private residences, schools, day [care] centers, parks and [recreation areas] or any other place where children, that means, in this instance, people under the age of eighteen, may live, engage in recreation, schooling ... [or] job training.

"`You will take such sex offender counseling and treatment as deemed appropriate, continue with [William Hobson, a sex offender treatment provider] and such additional or different treatment as determined necessary by the [office of adult probation] after [it] hear[s] from him.

"`[Only a judge] ... is allowed to modify any of your probation [conditions].... So ... if Mr. Hobson determines that you can reside in a house where children are or something else, then you have to contact your probation officer and ... your attorney, come back to court, [where] some judge will have a hearing and decide. ... [Mr. Hobson cannot] modify probation, only a judge can.' Finally, the court set specific guidelines concerning the defendant's visits with his granddaughter.

"The court ... [rendered judgment thereon modifying the conditions of the defendant's probation and] issued a written order of probation⁴ [the latter of which] was signed by a court clerk. [This] order set forth the several conditions of probation imposed by the court at the conclusion of the dispositional phase of the violation of probation proceeding.... [This] order, dated October 1, 2004, contained the following [relevant] language: `It is ordered and adjudged that ... the defendant must submit to and pay for any electronic/digital monitoring as deemed appropriate by the office of adult probation....' The defendant did not appeal from the court's judgment.

"On December 15, 2005, the state filed a pleading entitled `Motion to Modify Probation,' the body of which [provides]: `Pursuant to ... Practice Book [§] 43-29A, the [s]tate respectfully requests this [c]ourt [to] modify [the defendant's] probation. The [s]tate requests [that the office of adult] probation return [the defendant] to electronic monitoring.' The court ... subsequently held a hearing concerning the state's motion to modify. During that hearing, the prosecutor represented that, in September or October, 2005, she learned from the victim's attorney that the office of adult probation had discontinued its electronic monitoring of the defendant and that she was unsuccessful in her attempts to have such monitoring reinstated. The prosecutor stated that the court, in its 2004 [order of probation], had not afforded the office of adult probation discretion to terminate electronic monitoring but merely discretion to determine what type of electronic monitoring system to utilize. Recalling, briefly and generally, the factual circumstances related to the violation of probation proceeding in 2004, the prosecutor stated that continuous monitoring of the defendant for the duration of his probation was desired by the state and the victim's family as an objective way of keeping track of the defendant's whereabouts. The state did not present any evidence in support of its motion.

"The defendant's attorney argued that the court had not...