State v. Milner, 31572.

130 Conn.App. 19

21 A.3d 907

STATE of Connecticut

v.Antonio MILNER.

No. 31572.

Appellate Court of Connecticut.

Argued Feb. 3, 2011.Decided July 5, 2011.

David J. Reich, special public defender, for the appellant (defendant).John A. East III, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Chris Pelosi, assistant state's attorney, for the appellee (state).BEACH, ALVORD and SCHALLER, Js.BEACH, J.

The defendant, Antonio Milner, appeals from the judgment of the trial court finding him in violation of probation in violation of General Statutes § 53a–32. The defendant claims that (1) there was insufficient evidence for the court to find by a preponderance of the evidence that a probation violation had occurred, (2) the court discouraged him from exercising his right to allocution during the dispositional phase of the probation revocation hearing and (3) the court abused its discretion when, during the dispositional phase, it revoked his probation and sentenced him to forty-eight months imprisonment. We dismiss the appeal insofar as it relates to whether the defendant violated the terms of his probation and otherwise affirm the judgment of the trial court.

The following facts and procedural history are relevant. In 1995, the defendant was convicted, following a jury trial, of burglary in the first degree in violation of General Statutes § 53a–101 and was sentenced to fifteen years imprisonment, execution suspended after ten years, followed by three years probation. On August 24, 2005, the defendant was released from prison and began serving his probationary term. Upon his release from prison, the defendant signed a form listing his conditions of probation, which included, inter alia, the general terms that he not violate any criminal laws and that he report as directed by his probation officer.

The defendant's sentence included a term of three years probation, which ran from August 24, 2005, to August 24, 2008. On January 28, 2008, the defendant was arrested and charged with unsafe backing of a motor vehicle in violation of General Statutes § 14–243, reckless driving in violation of General Statutes § 14–222, failure to obey an officer's signal in violation of General Statutes § 14–223(b), operating a motor vehicle under a suspended license in violation of General Statutes § 14–215, larceny in the second degree in violation of General Statutes § 53a–123, interfering with a police officer in violation of General Statutes § 53a–167a (a), criminal possession of a weapon in a motor vehicle in violation of General Statutes § 29–38, carrying a pistol without a permit in violation of General Statutes § 29–35 and criminal possession of a pistol in violation of General Statutes § 53a–217c. Additionally, the defendant was charged with violating the terms of his probation.

At the hearing on the violation of probation charges, the court apparently credited the following testimony. Anthony Niglio, the defendant's probation officer, testified that the defendant was scheduled to meet him at the office of adult probation on January 18, 2007. Prior to that date, however, Niglio took paternity leave. He testified that because he was not at work on January 18, 2007, he had no knowledge of whether the defendant reported on that date. Probation officer Tiana Armstrong testified that the defendant's case was assigned to her on January 31, 2007. She testified that there was no indication in the defendant's file that he reported on January 18, 2007. Armstrong testified that as a result, on February 22, 2007, she mailed a letter to the address that the defendant had provided, asking him to report to her on April 3, 2007. The defendant did not report on that date. On June 15, 2007, Armstrong attempted to contact the defendant by telephone using the number he had provided as his home telephone number. Armstrong received a recording indicating that the number was out of service. On September 18, 2007, Armstrong again placed a telephone call to the defendant's home number and again received a message that the number was out of service. She then telephoned the defendant's cell phone number and was directed to voice mail by a female voice. Armstrong left a detailed message stating that the defendant was in “violation status” because he had failed to report and asking the person who created the voice prompt to tell the defendant to contact her as soon as possible or to contact her if the person knew his whereabouts.

When Armstrong did not receive a response from the defendant, she tried to contact the defendant using both telephone numbers on October 16, 2007. The home telephone number registered as “out of service,” and she did not leave an additional voice mail message on the defendant's cell phone because Armstrong was unsure of the identity of the woman who created the voice prompt.

On October 25, 2007, Armstrong mailed a certified letter to the defendant at his home address, directing the defendant to report in person to her on October 31, 2007. The letter was accepted at the defendant's home address. On January 16, 2008, Armstrong again telephoned the defendant's home number. The telephone rang and a male answered. He said that he was the defendant's brother. The person said that the defendant was not there and that he did not know where the defendant was. He agreed to give the defendant a message from Armstrong that the defendant was in violation of his probation for not reporting.

Sean Spell, a sergeant with the Hartford police department, testified that on January 18, 2008, he was alerted to an “active burglary” in the Frog Hollow section of Hartford. As Spell was traveling toward the scene, he received a radio message from a responding officer that two vehicles were chasing each other at a high rate of speed northbound toward Allen Place. Spell positioned his police cruiser on Allen Place and waited for the cars to arrive. Spell observed a Lexus with heavily tinted windows traveling at a high rate of speed on Allen Place, and he pursued the vehicle. At some point, the defendant, who was driving the Lexus, was confronted with heavy traffic. The defendant then drove the Lexus in reverse at a high rate of speed down Allen Place and toward Spell's cruiser. Spell activated the lights on his cruiser and drove into a driveway to avoid being hit. Another cruiser arrived, in which Officer Frank Verrengia and other officers were riding. Both cruisers pursued the Lexus. While the Lexus was still in reverse, the defendant crashed it into a tree. The defendant revved the engine, and the tires spun in an embankment of snow.

Spell blocked the Lexus with his cruiser. Spell and the other officers drew their guns and surrounded the Lexus, ordering the defendant to turn off the engine and open the doors. The occupants of the Lexus ignored these orders. Spell observed “a lot of movement” in the Lexus. It looked as though someone was trying to conceal or to grab something, but he was unable to discern precisely what was happening because of the dark tint of the windows. Spell ordered the other officers to smash the windows. Verrengia shouted, “10–83,” which was a code for the presence of a gun, and Spell noticed a gun in the center console. The officers physically had to remove the defendant and the other occupant from the Lexus. The officers later learned that the Lexus was reported to have been stolen. Verrengia testified similarly. He added that when he shouted, “10–83,” it appeared as if the driver was reaching toward the weapon.

The defendant does not dispute that he was the driver of the Lexus. The defendant, however, provided the court with a different version of events, which the court did not credit. The court found that the defendant had violated the terms and conditions of his probation and that his probation should be revoked. The court imposed a total effective sentence of forty-eight months imprisonment. This appeal followed. Additional facts will be set forth as necessary.

As a preliminary matter, we set forth the following standards. “[A] probation revocation hearing has two distinct components.... The trial court must first conduct an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition of probation.... If the trial court determines that the evidence has established a violation of a condition of probation, then it proceeds to the second component of probation revocation, the determination of whether the defendant's probationary status should be revoked.” (Internal quotation marks omitted.) State v. Fowler, 102 Conn.App. 154, 165, 926 A.2d 672, cert. denied, 284 Conn. 922, 933 A.2d 725 (2007).

I

The defendant first claims that there was insufficient evidence for the court to find by a preponderance of the evidence that a probation violation occurred. Before we address the merits of the defendant's claim, we must resolve a preliminary issue raised by the state. The state argues that we should dismiss as moot the defendant's claims insofar as they challenge the court's finding of a violation of probation. We agree with the state.

“Mootness implicates a court's subject matter jurisdiction and, therefore, presents a question of law over which we exercise plenary review.... For a case to be justiciable, it is required, among other things, that there be an actual controversy between or among the parties to the dispute.... [T]he requirement of an actual controversy ... is premised upon the notion that courts are called upon to determine existing controversies, and thus may not be used as a vehicle to obtain advisory judicial opinions on points of law.... Moreover, [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...