State v. Fletcher

183 Conn.App. 1

191 A.3d 1068

STATE of Connecticut

v.Darryl FLETCHER

AC 39358

Appellate Court of Connecticut.

Argued March 12, 2018

Officially Released June 26, 2018

Laila M. G. Haswell, senior assistant public defender, for the appellant (defendant).

Jennifer W. Cooper, special deputy assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Karen A. Roberg, assistant state's attorney, for the appellee (state).

Lavine, Alvord, and Keller, Js.

KELLER, J.

The defendant, Darryl Fletcher, appeals from the judgment of the trial court revoking his probation pursuant to General Statutes § 53a–32 and sentencing him to a term of incarceration of eighteen months.

The defendant claims that he is entitled to a new sentencing hearing because the court improperly relied on a fact that was not part of the record. We affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our analysis. In 1999, the defendant was convicted of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a–278 (b), possession of narcotics with intent to sell within 1500 feet of a public school in violation of General Statutes § 21a–278a (b), possession of marijuana in violation of General Statutes § 21a–279 (c), and three counts of criminal possession of a pistol or revolver in violation of General Statutes § 53a–217c. The defendant received a total effective sentence of twenty years, execution suspended after thirteen years, followed by five years of probation. This court affirmed the judgment of conviction. State v. Fletcher , 63 Conn. App. 476, 777 A.2d 691, cert. denied, 257 Conn. 902, 776 A.2d 1152 (2001).

The defendant's probationary period commenced when he was released from incarceration on November 17, 2011.¹ Among the court-ordered special conditions of the defendant's probation² was that he submit to drug screening, evaluation, and treatment and that he obtain full-time verifiable employment.

In 2015, the defendant was arrested and charged with violating his probation in violation of General Statutes § 53a–32. The defendant denied the charge. The matter was tried before the court on May 2, 2016. At the conclusion of the adjudicatory phase of the hearing, the court found that the state had proven that the defendant had violated several of the conditions of his probation. Specifically, the court found that the defendant did not verify his employment with his probation officers, failed to complete a domestic violence treatment program, failed to submit to a drug treatment program, and tested positive for marijuana and cocaine use. At the conclusion of the dispositional phase of the hearing, the court terminated the defendant's probationary status and sentenced him to serve a term of incarceration of eighteen months.³

On June 28, 2016, the defendant filed the present appeal. The defendant does not claim that the court erroneously determined, in the adjudicative phase of the hearing, that he violated his probation. The defendant claims that, in the dispositional phase of the hearing, the court improperly inferred from the evidence that, for nearly a year, he eluded service of the warrant charging him with violating his probation.⁴ Moreover, the defendant argues that, in imposing its sentence, the court ‘‘substantially relied upon its faulty determination that the defendant was avoiding being arrested ....’’ The remedy that he seeks from this court is a new sentencing hearing.

On August 31, 2017, after the defendant filed his principal brief, the state filed a motion to dismiss the appeal on the ground that it became moot when the defendant was released from the custody of the Department of Correction (department) on August 22, 2017. The state argued that this court could no longer afford the defendant, who was challenging only the manner in which the court imposed its sentence and not the finding that he had violated his probation, any practical relief. In his objection to the motion to dismiss, the defendant acknowledged that he had been released from custody on August 22, 2017, but argued that exceptions to the mootness doctrine applied and that this court should not dismiss the appeal. This court denied the state's motion without prejudice to the state, and permitted the state to address the mootness issue in its brief and the defendant to address the issue in his reply brief. They have done so. Additional facts will be set forth as necessary.

I

First, we address the state's argument that the appeal is moot because the defendant has completed his sentence. ‘‘Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [a] court's subject matter jurisdiction .... It is well settled that [a]n issue is moot when the court can no longer grant any practical relief.’’ (Citation omitted; internal quotation marks omitted.) Middlebury v. Connecticut Siting Council , 326 Conn. 40, 53–54, 161 A.3d 537 (2017). ‘‘Under such circumstances, the court would merely be rendering an advisory opinion, instead of adjudicating an actual, justiciable controversy.’’ State v. Jerzy G ., 326 Conn. 206, 213, 162 A.3d 692 (2017). ‘‘Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable....

Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power ... and (4) that the determination of the controversy will result in practical relief to the complainant.’’ Glastonbury v. Metropolitan District Commission , 328 Conn. 326, 333, 179 A.3d 201 (2018). ‘‘[A]n 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.’’ (Internal quotation marks omitted.) State v. McElveen , 261 Conn. 198, 205, 802 A.2d 74 (2002). ‘‘If there is no longer an actual controversy in which [this court] can afford practical relief to the parties, we must dismiss the appeal.... In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way.’’ (Citation omitted; internal quotation marks omitted.) Medeiros v. Medeiros , 175 Conn. App. 174, 196, 167 A.3d 967 (2017).

The parties do not dispute that because the defendant has completed his sentence, this court no longer has the ability to reduce the number of days he must remain incarcerated. On this ground, the state argues that this court may not grant any practical relief and that the appeal should be dismissed. In reply, the defendant argues that this appeal falls within two well settled exceptions to the mootness doctrine, namely, the collateral consequences exception as well as the exception for appeals involving issues that are capable of repetition yet evade review.

‘‘[T]he court may retain jurisdiction when a litigant shows that there is a reasonable possibility that prejudicial collateral consequences will occur.... [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. Where 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.’’ (Internal quotation marks omitted.) State v. Reddy , 135 Conn. App. 65, 69–70, 42 A.3d 406 (2012) ; see also Williams v. Ragaglia , 261 Conn. 219, 226, 802 A.2d 778 (2002) (litigant bears burden of demonstrating reasonable possibility that prejudicial consequences will occur); State v. McElveen , supra, 261 Conn. at 205, 802 A.2d 74 (same).

The defendant argues: ‘‘The record of jail in his criminal history will stigmatize him in the community for the rest of his life and hinder his efforts to obtain meaningful employment. And if he is ever charged with another crime, judges and prosecutors will factor in the defendant's incarceration when determining a sentence.’’ Also, the defendant argues: ‘‘Although our citizens suffer greatly from the collateral consequences of convictions, it is simply not the case that all collateral consequences arise from the conviction alone. Any potential employer or school admissions office would know from the defendant's record that he has served time in prison. They would understand that during that time the defendant was not learning new skills and was not making connections within the community that would benefit future employment. Just the fact that the defendant's transgressions had earned him the most severe punishment possible in our criminal justice system, rather than a fine or more probation, will hurt him because the stigma of incarceration is much heavier than other, lesser sentences.... To suggest otherwise ignores the very real barriers that former inmates contend with every day after they are released from jail and return to their communities.’’ (Footnote omitted.)

Essentially, the defendant's appeal is based on what he claims to be error in the court's determination to revoke his probation. ‘‘Our Supreme Court has recognized that revocation of probation hearings, pursuant to [General...