State v. Fowler

178 Conn.App. 332

175 A.3d 76

STATE of Connecticut

v.Jamarr FOWLER

AC 38979

Appellate Court of Connecticut.

Argued October 5, 2017

Officially released November 28, 2017

Robert J. McKay, assigned counsel, for the appellant (defendant).

Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Richard J. Colangelo, Jr., state's attorney, and Mitchell Rubin, senior assistant state's attorney, for the appellee (state).

DiPentima, C.J., and Alvord and Pellegrino, Js.

ALVORD, J.

The defendant, Jamarr Fowler, appeals from the judgment of the trial court revoking his probation and imposing a previously suspended three year prison sentence. On appeal, the defendant claims that the trial court improperly (1) found a violation of probation on the basis of insufficient evidence; (2) determined that the Office of Probation had authority to include a probation condition that the defendant must submit to global positioning system (GPS) monitoring; and (3) denied the defendant's motion to dismiss. We affirm the judgment of the trial court.

The record reveals the following relevant facts.¹ On July 30, 2015, pursuant to a plea agreement, the defendant pleaded guilty to one count of interfering with an officer in violation of General Statutes § 53a–167a and one count of forgery in the second degree in violation of General Statutes § 53a–139. The trial court, White J. , imposed a total effective sentence of three years incarceration, fully suspended, followed by three years of probation. That same day, the defendant met with a probation intake specialist and reviewed the conditions of his probation, which required, in relevant part, that he "[k]eep the probation officer informed of where you are," "tell your probation officer immediately about any change to your ... address," and "[d]o not leave the State of Connecticut without permission from the probation officer."²

At the time of his intake, the defendant informed Probation Officer Shonda Wright that he had no family or ties in the state of Connecticut, and that he was living in a New York homeless shelter prior to his arrest.

Probation Officer Wright told the defendant that probation officials would investigate transferring his probation to the state of New York, but only if he provided a valid and verifiable New York address. Probation Officer Wright instructed the defendant to contact the probation office on August 3, 2015, with a verifiable New York address.

On August 3, the defendant called the probation office and spoke to Probation Officer Wright. He explained that he was in New York, homeless, and could not provide a New York address to facilitate the transfer of his probation. Probation Officer Wright informed the defendant that if he could not provide a New York address, his probation would have to be supervised in Connecticut.

On August 10, 2015, the defendant called Probation Officer Wright and informed her that he still did not have a New York address. He claimed that he was in New York at the time, but could not provide her with the address of where he was staying. Probation Officer Wright again informed the defendant that if he did not secure a New York address as soon as possible, he would have to return to Connecticut and be supervised by Connecticut probation officials.

Because probation officials considered the defendant to be a "higher risk" probationer due to his failure to provide a verifiable address and his newly discovered status as a registered sex offender in New York,³ Chief Probation Officer Lorraine Rodrigues assumed oversight of the defendant's file on August 14, 2015. On that date, Chief Probation Officer Rodrigues spoke with the defendant and reminded him that he was required either to provide a New York address, or return to Connecticut to be supervised, and that if he did not do so by August 17, 2015, probation officials would issue a violation of probation warrant for his arrest. She also advised the defendant that the decision to accept the transfer of his probation was "completely discretionary" on the part of New York probation officials, who would investigate whether any address that he provided was suitable for supervision. She also informed him that if New York probation officials rejected the transfer, he would have to return to Connecticut to be supervised.⁴

On August 17, 2015, the defendant contacted Probation Officer Wright and provided her with a New York address. Probation Officer Wright forwarded the address to New York probation officials as part of an application for an interstate transfer. On September 8, New York probation officials notified Connecticut probation officials that New York had denied the interstate transfer request because the provided address was within 1000 feet of a public school, which was not permitted due to the defendant's status as a registered sex offender. That same day, Probation Officer Wright informed the defendant that his interstate transfer request was denied. She directed the defendant to return to Connecticut by September 10, 2015, to be supervised by Connecticut probation officials. Probation Officer Wright described the defendant as "very agitated" during this phone call. Probation Officer Wright transferred the call to Chief Probation Officer Rodrigues, who reiterated the same information to the defendant.⁵

On September 10, 2015, the defendant called Chief Probation Officer Rodrigues. Chief Probation Officer Rodrigues advised the defendant that he was in New York without permission, and instructed him to return to Connecticut by 10 a.m. on September 15, 2015, or probation officials would issue a violation of probation warrant.⁶ Later that day, the defendant called Chief Probation Officer Rodrigues and stated that he remembered that he had a pending criminal case in New York and his conditions of release did not permit him to leave the state. Connecticut probation officials investigated this claim, and discovered that while the defendant did have a pending criminal case in New York, the court-ordered conditions of his release did not prohibit him from leaving that state.⁷

On September 15, 2015, the defendant reported to the Stamford probation office with his attorney, Benjamin Aponte. The defendant and Aponte met with Chief Probation Officer Rodrigues and Chief Probation Officer Marvin Parsons. At that meeting, the defendant provided an address in the Bronx, New York. He claimed that his aunt had an apartment there, and that she would allow him to take over the lease and reside at the apartment. Chief Probation Officer Parsons asked the defendant for his aunt's contact information, and the defendant was unable to provide it. On the basis of the defendant's inability to provide contact information, coupled with New York's previous rejection of the defendant's transfer request due to the defendant's then stated New York address, Chief Probation Officer Parsons declined at that time to investigate the Bronx address.⁸

Chief Probation Officers Parsons and Rodrigues also informed the defendant that his conditions of release in New York did not bar him from leaving the state.⁹ Chief Probation Officers Parsons and Rodrigues instructed the defendant to provide the name and address of the hotel¹⁰ where he would be staying that night so that his location could be confirmed, and also instructed him to appear for a scheduled appointment the following day. The defendant did not provide an address that night as instructed.

On September 16, at 5 a.m., the defendant called the probation office and left a voicemail stating that he was staying at 20 Hale Drive in Windsor. At Chief Probation Officer Parsons' request, two probation officers from Hartford traveled to the Windsor address to investigate. The probation officers spoke with a female resident, who told them that she did not know the defendant and he was not residing at the address. Subsequently, the defendant called the probation office and claimed that a friend, unbeknownst to the friend's wife, was allowing him to stay in the back of the Windsor residence in a shed. The defendant refused to provide contact information for his friend. The defendant was instructed to bring the information to a scheduled appointment later that day.

Later that day, one and a half hours late, the defendant reported to the probation office. At that point, because the defendant still had failed to provide a valid and verifiable address, probation officials informed the defendant that he would be placed on a GPS monitor. The defendant refused, stating, "never in a million years would I agree to go on a GPS monitor." Because the defendant had been given approximately seven weeks to provide a valid and verifiable address and failed to do so, and was considered a higher risk due to his sex offender status in New York, Chief Probation Officer Parsons drafted an application for an arrest warrant for violation of probation when the defendant refused to submit to GPS monitoring. That same day, the court, Hon. Richard F. Comerford, Jr. , judge trial referee, signed the warrant and probation officials arrested the defendant.

During the adjudication phase of the defendant's violation of probation hearing, the state called Chief Probation Officer Parsons to testify and entered five exhibits into evidence, including a copy of the defendant's signed conditions of probation and the violation of probation warrant. The defendant did not offer any evidence. The trial court, A., Grogins, J. , found that the defendant had violated the conditions of his probation, specifically that he failed to keep probation apprised of his whereabouts and failed to provide a valid and verifiable address to probation. Following the adjudication phase of the hearing, the court sentenced the defendant to a period of three years incarceration. This appeal followed.

I

The defendant's first claim on appeal is that there was insufficient evidence to support the trial court's finding that he violated a...