State v. Mieles

221 Conn.App. 164

301 A.3d 1063

STATE of Connecticut v. Juan MIELES

AC 45281

Appellate Court of Connecticut.

Argued January 18, 2023

Officially Released August 15, 2023

James B. Streeto, senior assistant public defender, for the appellant (defendant).

Michele C. Lukban, Rocky Hill, senior assistant state's attorney, for the appellee (state).

Bright, C. J., and Moll and Cradle, Js.

CRADLE, J.

The defendant, Juan Mieles, appeals following the issuance of a standing criminal protective order as to the victim, ¹ imposed after he began serving his sentence for the crimes he perpetrated against the victim. The defendant claims that the trial court (1) abused its discretion in imposing the standing criminal protective order because there was no change in circumstances that would justify opening the judgment, (2) lacked jurisdiction to modify the defendant's sentence, and (3) violated constitutional protections against double jeopardy. We affirm the judgment of the court.

The following facts and procedural history are relevant to this decision. On February 2, 2012, the defendant pleaded guilty to one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (2), ² pursuant to a plea agreement under which he would be sentenced to fifteen years of incarceration, suspended after five years, and twenty-five years of probation. At the plea hearing, the state provided the following factual basis for the plea agreement: "[O]n June 7th, 2011, at about 5:10 p.m., [the victim's] mother in this case, [J], allowed her daughter, who was age seven, and her son ... permission to walk to [a park in Bridgeport] with [the] defendant. [The] defendant was [a friend] of the family .... [He] had [frequent] contact with, not only [J], but with the two children as well on previous occasions.

"[J] went to the park shortly thereafter to meet them, but she could not locate them. After riding around the neighborhood for approximately an hour, [J] saw them walking down [a street in Bridgeport], with the defendant carrying ... the [victim] on ... his back piggyback style.

"When [J] pulled over, the young girl ran up to her and indicated [that] the defendant hurt [her]. She indicated something about his pee pee, to do like this. At that point in time, the young girl was making a motion with her hand going up and down. [J] checked the young girl's genital area and observed a redness.

"[J] then took the [victim] to [a hospital], where she met [with] the Bridgeport Police Department. In actuality, [J] ... forced [the defendant] to get into the car with her, when they drove to the hospital. And, at the hospital, the police were able to speak with [the defendant] at that point in time. [The defendant] told the [officer who] interviewed him that he took [J's] kids to his house ... [a]nd that they started wrestling, and he could have mistakenly touched the young girl's crotch area while wrestling. He added that, while wrestling, he did unintentionally have an erection.

"Further on ... [the defendant] admitted that [he] did rub [the victim's] genital areas .... He also stated that he rubbed his penis on her vagina through her clothing.

"The ... lab did an examination .... [T]he lab did find some spermatozoa on the undergarments of the young girl as well as on one of the vaginal swabs ...."

During the plea hearing, it came to light that the defendant had been making telephone calls to the victim's grandmother, and the following exchange took place between the court, Devlin, J. , and J:

"The Court: I'm going to enter an order today—

"[J]: Mm-hmm.

"The Court: —that this defendant have absolutely no contact with your mother's telephone number.

"[J]: Mm-hmm.

"The Court: He should not be contacting you.

"[J]: Mm-hmm.

"The Court: And he should not have third persons contact you. It should—

"[J]: Exactly.

"The Court: There should be no contact whatsoever. And you're absolutely entitled to that protection from the court. This is the first I've heard about this.

"[J]: Mm-hmm."

The court proceeded to canvass the defendant, during which it reiterated the terms of the plea agreement. After canvassing the defendant, the court accepted the defendant's guilty plea, ordered a presentence investigation, and imposed a no contact order as a condition of the defendant's bond, prohibiting the defendant from having any contact with the victim, her relatives, or anyone associated with the victim. The court then continued the matter for sentencing.

On April 13, 2012, the court sentenced the defendant to fifteen years of incarceration, execution suspended after five years, and twenty-five years of probation. The court imposed standard conditions of probation as well as special conditions of probation, which included sex offender treatment and a condition that he have no contact with the victim or any other minor without the permission of the probation department.

The defendant was released from incarceration on April 8, 2016, and placed in the January Center, a residential placement for homeless sex offenders. On May 5, 2016, the defendant was arrested, pursuant to a warrant, charging him with violation of probation, for stating that he was going to "burn the [January Center] to the ground and drag everyone in it to hell with him." The defendant admitted to violating the conditions of his probation, and the court, Devlin, J. , sentenced him to ten years of incarceration, execution suspended after one year, and twenty-four years of probation with all original conditions of probation reimposed. The defendant was released from incarceration on March 30, 2017, and he was charged with violation of probation again

in May, 2017. ³ The defendant admitted to violating his probation, and, on July 17, 2019, the court, Alexander, J. , sentenced him to nine years of incarceration, execution suspended after three years, and twenty years of probation with all original conditions of probation reimposed. ⁴

On March 12, 2021, the state filed a motion to impose a standing criminal protective order on the defendant. In its motion, the state argued that "[t]he grounds for the motion are that, at the time of the defendant's sentencing, although a no contact order was issued, a protective order was not. [J] was erroneously under the impression that a standing criminal protective order was in place. The defendant is currently on supervised parole and will eventually be placed on probation, however [J] is afraid that, once the defendant is done with probation, there will be nothing preventing him from having contact with her daughter. In addition, [J] moves

quite frequently, and has previously resided in New Haven. She is aware that the defendant is currently on supervised parole and residing in New Haven. She is fearful for her daughter's safety and would request the added protection of a standing criminal protective order at the present time."

The court, Russo, J. , held a hearing on the motion on August 24, 2021. At the hearing, the state reasserted the grounds stated in its motion, namely, that J was under the impression that a standing criminal protective order already was in effect, and she was concerned for her daughter's safety should she move to an area close to where the defendant resides. ⁵ The court then noted that, "according to State [v.] Alexander , [269 Conn. 107, 847 A.2d 970 (2004)], the imposition of an order like this does not change the sentence. It's an added layer of protection." The defendant argued that the present case is distinguishable from the facts of Alexander because he was sentenced more than nine years earlier, whereas the defendant in Alexander was sentenced less than one month prior to the standing criminal protective order. The defendant also expressed his disagreement with the outcome of Alexander , arguing that "a standing criminal [protective] order subjects [the defendant] to a heightened criminal legal liability. A potential violation of that would expose him to another felony charge, [and] potentially more incarceration."

In ruling on the motion, the court began by stating that the defendant has not done anything to trigger additional criminal proceedings. The court went on to reason that Alexander "instructs [the court] to ... understand that the imposition of a standing [criminal protective] order, which the state has requested through

its motion, one, is not punitive to you. Two, that it serves the purpose of protecting ... victims. It does not increase the term of imprisonment that you either have already served or are presently serving. Nor does it impose any type of additional monetary fine. And ... finally, [ Alexander ] does settle with the following language: Because the passage of the act is not punitive in law or in fact, we conclude that the court's imposition of a standing criminal [protective] order upon the defendant did not affect his sentence." Further, the court found that the sentencing court's failure to impose a standing criminal protective order, despite the understanding of the victim's mother that one would be imposed, implicated "the integrity of our criminal justice system." On the basis of the foregoing, the court granted the state's motion to impose a standing criminal protective order and imposed an order the same day. This appeal followed.

On appeal, the defendant claims that the court (1) abused its discretion in imposing the standing criminal protective order because there was no change in circumstances that would justify opening the judgment, (2) lacked jurisdiction to modify his sentence, and (3) violated constitutional protections against double jeopardy. As to the defendant's second and third claims, we conclude—and the defendant conceded at oral argument—that our Supreme Court's decision in Alexander controls. See State v. Alexander , supra, 269 Conn. at 119–20, 847 A.2d 970 (holding that trial court had jurisdiction to impose standing criminal protective order after...