State v. Jerzy G.

183 Conn.App. 757

193 A.3d 1215

STATE of Connecticut

v.JERZY G.^*

AC 36586

Appellate Court of Connecticut.

Argued January 18, 2018

Officially released July 31, 2018

Kelly Billings, assistant public defender, with whom was James B. Streeto, senior assistant public defender, for the appellant (defendant).

Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, Marc R. Durso, senior assistant state's attorney, and Tiffany M. Lockshier, senior assistant state's attorney, for the appellee (state).

Elgo, Bright and Beach, Js.

BEACH, J.

This case returns to us on remand from our Supreme Court with direction to consider the merits of the appeal of the deported defendant, Jerzy G. He challenges the trial court's rulings terminating his participation in the accelerated rehabilitation program and declining to dismiss the criminal charge against him. This court previously dismissed the appeal as moot under State v. Aquino , 279 Conn. 293, 901 A.2d 1194 (2006). State v. Jerzy G. , 162 Conn. App. 156, 130 A.3d 303 (2015), rev'd, 326 Conn. 206, 162 A.3d 692 (2017). Holding that Aquino does not control the present case, our Supreme Court reversed this court's judgment and remanded the case to this court for further proceedings. State v. Jerzy G. , 326 Conn. 206, 208–209, 226, 162 A.3d 692 (2017). The parties then filed supplemental briefs. We affirm the trial court's orders declining to dismiss the charge and terminating of probation.

Our Supreme Court recited the following history. ‘‘The record reveals the following undisputed facts [and procedural history]. The defendant is a citizen of Poland. In April, 2006, he entered the United States on a nonimmigrant B-2 visitor's visa, which authorized him to remain in this country for a period not to exceed six months. Approximately six years later, in January, 2012, the defendant was charged with one count of sexual assault in the fourth degree, a class A misdemeanor, in violation of General Statutes § 53a-73a (a) (2). The defendant filed an application for the pretrial diversionary program of accelerated rehabilitation, which vests the court with discretion to suspend criminal prosecution for certain offenses and to release the defendant to the custody of the Court Support Services Division for a specified period, subject to conditions the court deems appropriate. See General Statutes § 54-56e (a), (b) and (d). Upon successful completion of the program for the specified period, the defendant would be entitled to dismissal of the charge. See General Statutes § 54-56e (f). The state opposed the application.

‘‘At an April, 2012 hearing on the application, the state brought information to the court's attention that it had received from United States Immigration and Customs Enforcement (ICE) regarding the defendant's immigration status. ICE informed the state that the defendant had overstayed his visa. ICE indicated that it would commence removal proceedings if the defendant was convicted of the charge, but was uncertain about what would happen if he was not convicted. The state also informed the court that the complainant, an acquaintance of the defendant, had reported that the defendant has a wife and children who are living in Poland.

‘‘Following argument, the trial court, Iannotti , J. , granted the defendant's application for accelerated rehabilitation and made no reference to the defendant's immigration status. The court made the requisite statutory findings that the offense was not serious and that the defendant was not likely to reoffend. See General Statutes § 54-56e (a) and (b). The court imposed the maximum statutory period of supervision, two years, and the following conditions: no contact with the complainant; mental health evaluation and treatment as deemed necessary; substance abuse (alcohol) evaluation and treatment as deemed necessary; and seek and maintain full-time employment. The court continued the case until April, 2014, when the two year period of probation would terminate upon successful completion of the program. Thereafter, the defendant was released from custody.

‘‘Between May and August, 2012, ICE took steps to remove the defendant from the United States. In May, the defendant was taken into custody by ICE after he was served with a notice to appear. The notice stated that he was subject to removal because he had remained in the United States for a period longer than permitted, without authorization. In June, a United States Immigration Court ordered his removal from the United States. Following that order, the United States Department of Homeland Security issued a notice to the defendant, warning him that he was prohibited from entering the United States for a period of ten years from his departure date because he had been found deportable under § 237 of the Immigration and Nationality Act ; 8 U.S.C. § 1227 (2012) ; and ordered him removed from the United States. In August, 2012, the defendant was deported to Poland.

‘‘In November, 2013, the defendant's deportation was brought to the trial court's attention. Upon the request of the Department of Adult Probation, the court, Arnold , J. , advanced the date for a determination [of] whether the defendant had successfully completed the terms of his accelerated rehabilitation from April, 2014, to November, 2013. At the hearing, the state sought termination of the program and requested an order for the defendant's rearrest. The defendant's public defender asked the court either to continue the case to allow further investigation or to find that the defendant had successfully completed the program and dismiss the criminal charge. Ultimately, following additional hearings, the court found that the defendant had failed to successfully complete the program, ordered his rearrest, and imposed as a condition of his release that he post a $5000 cash or surety bond.

‘‘The court explained its decision in a subsequent memorandum of decision, couching its reasoning in both jurisdictional and substantive terms. It noted that the state had informed the court that the basis for the defendant's deportation was that he had overstayed his visa's term. It thus found that the defendant voluntarily had placed himself in jeopardy for deportation and was aware of this possibility when accelerated rehabilitation was ordered for the two year period. It found that the defendant had offered no proof that his deportation was solely a consequence of either his arrest, the pendency of the criminal charge, or his entrance into the accelerated rehabilitation program. The court further noted that the defendant had not offered any proof of compliance with the conditions of participation in that program. The trial court cited [our Supreme Court's] decision in Aquino and concluded: ‘The immigration consequences of the defendant are collateral and beyond the control of [the] court. The court found that the defendant was unsuccessful in his completion of the ... program and has terminated his participation in said program.’ ...

‘‘[This court] did not reach the merits of [the defendant's] claims, concluding that the appeal should be dismissed as moot.... The court cited Aquino and its Appellate Court progeny as prescribing a rule under which the court cannot grant practical relief unless there is evidence that the challenged decision is the exclusive basis for the deportation.... The defendant's certified appeal to [our Supreme Court] followed.’’ (Citations omitted.) State v. Jerzy G. , supra, 326 Conn. at 209–12, 162 A.3d 692.

On appeal, our Supreme Court narrowed its holding in Aquino and concluded that Aquino did not apply to the present case.

Rather, the mootness issue was properly determined by application of the ‘‘traditional collateral consequences standard,’’ as articulated in State v. McElveen , 261 Conn. 198, 802 A.2d 74 (2002), and Housing Authority v. Lamothe , 225 Conn. 757, 627 A.2d 367 (1993). State v. Jerzy G. , supra, 326 Conn. at 213–26, 162 A.3d 692. Applying that standard, our Supreme Court held that the defendant's appeal was not moot and remanded to this court to consider the merits of his appeal. Id., at 226, 162 A.3d 692.

In doing so, we first set out our standards of review. To the extent that we are called upon to interpret the provisions of § 54-56e, our review is plenary. See State v. Kevalis , 313 Conn. 590, 599, 99 A.3d 196 (2014). We review the court's rulings regarding a defendant's participation in the accelerated rehabilitation program for an abuse of discretion. See State v. Callahan , 108 Conn. App. 605, 611, 949 A.2d 513, cert. denied, 289 Conn. 916, 957 A.2d 879 (2008). ‘‘Our review of the trial court's exercise of its discretion is limited to the questions of whether the court correctly applied the law and whether it could reasonably conclude as it did.... It is only where an abuse of discretion is manifest or where an injustice appears to have been done that a reversal will result from the trial court's exercise of discretion.... Every reasonable presumption will be given in favor of the trial court's ruling.... The trial court's findings of fact [underlying a termination] are entitled to great deference and will be overturned only upon a showing that they were clearly erroneous.’’ (Citations omitted; internal quotation marks omitted.) Id.

‘‘[Section] 54-56e ... provides for a pretrial program for accelerated rehabilitation when the accused: is charged with crimes or violations that are not of a serious nature but are punishable by a term of imprisonment; has no previous record of conviction of a crime or of certain motor vehicle offenses ... and states under oath that she never has invoked the use of such program. General Statutes § 54-56e (a) and (b). The trial court may, in its discretion, invoke such program upon application of the accused or the state's attorney, provided the court believes that the person probably will not offend in the future. General...