State v. Milner

309 Conn. 744

72 A.3d 1068

STATE of Connecticut

v.Antonio MILNER.

No. 18844.

Supreme Court of Connecticut.

Argued April 24, 2013.

Decided Aug. 20, 2013.

David J. Reich, for the appellant (defendant).

Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Chris A. Pelosi, senior assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH, McDONALD and ESPINOSA, Js.

ESPINOSA, J.

The defendant, Antonio Milner, appeals from the judgment of the Appellate Court dismissing in part his appeal from the judgment of the trial court finding him in violation of probation in violation of General Statutes § 53a–32.¹ We granted certification to appeal limited to the question of “[w]hether the AppellateCourt properly held moot an appeal from a violation of probation finding where the criminal conviction constituting the violation is being challenged in a habeas corpus action?” State v. Milner, 302 Conn. 926, 28 A.3d 336 (2011). During the pendency of the appeal in this court, however, the defendant failed to appear before the habeas court for a status conference, leading that court to dismiss the habeas corpus action. Because the certified question in this appeal presupposes the existence of a habeas corpus action, we first consider a threshold question of justiciability—namely, whether the dismissal of the habeas corpus action has rendered this appeal moot. We conclude that this appeal is indeed moot because the dismissal of the habeas corpus action has extinguished any claim to a live controversy in this appeal. We therefore decline to address the certified question in this appeal, and dismiss the appeal sua sponte.

The record reveals the following relevant facts and procedural history. 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. State v. Milner, 130 Conn.App. 19, 21, 21 A.3d 907 (2011). In August, 2005, the defendant was released from prison and began serving his probationary term. Id. Upon his release from prison, the defendant signed a form listing the conditions of his probation, one of which was that he refrain from violating any criminal laws during the probationary period. Id.

In January, 2008, the defendant was arrested in Hartford after crashing a stolen Lexus into a tree while attempting to flee the police. As the officers approached the car, they observed “a lot of movement” inside. After removing the defendant from the car, the officers discovered a loaded Colt .380 caliber pistol on the driver's seat. The defendant was charged with multiple criminal offenses, including larceny, reckless driving, and carrying a pistol without a permit.²State v. Milner, supra, 130 Conn.App. at 21, 21 A.3d 907. On the basis of these charges, the defendant was also charged with having violated the terms of his probation. Id.

Following a hearing on the violation of probation charge, the court found that the defendant had violated the terms and conditions of his probation by engaging in the criminal conduct for which he was arrested in January, 2008. Id. Accordingly, the trial court revoked the defendant's probation, and imposed a total effective sentence of forty-eight months imprisonment. Id.

The defendant appealed from the judgment of the trial court to the Appellate Court, claiming, inter alia, that there was insufficient evidence to support the trial court's finding that he had violated his probation, and challenging the court's decision in the dispositional phase to revoke his probation. Id., at 25, 33, 21 A.3d 907. Between the time that he filed his appeal and oral argument was held in the Appellate Court, however, the defendant agreed to plead guilty in the trial court, pursuant to the Alford doctrine,³ to the charge of carrying a pistol without a permit, and a judgment of conviction was rendered on that charge (gun conviction). Id., at 26, 91 S.Ct. 160. The state argued before the Appellate Court that the defendant's challenge to the finding of violation of probation was rendered moot when he agreed to plead guilty to one of the very charges upon which the finding rested. Id., at 25–26, 91 S.Ct. 160. The defendant countered that his challenge to the finding of violation of probation was not moot because, although he had failed to appeal from the gun conviction, he had filed a habeas corpus action collaterally attacking that conviction.⁴Id., at 26, 91 S.Ct. 160.

The Appellate Court agreed with the state, and dismissed as moot the defendant's appeal regarding his challenge to the sufficiency of the evidence in support of the finding of violation of probation.⁵Id., at 36, 91 S.Ct. 160. Quoting our decision in State v. T.D., 286 Conn. 353, 366–67, 944 A.2d 288 (2008), the Appellate Court explained: “If a defendant has been convicted of criminal conduct, following either a guilty plea, Alford plea or a jury trial, and the defendant does not challenge that conviction by timely appealing it, then the conviction conclusively establishes that the defendant engaged in that criminal conduct. An appeal challenging a finding of violation of probation based on that conduct is, therefore, moot. When, however, the defendant has pursued a timely appeal from a conviction for criminal conduct and that appeal remains unresolved, there exists a live controversyover whether the defendant engaged in the criminal conduct, and an appeal challenging a finding of violation of probation stemming from that conduct is not moot.” (Internal quotation marks omitted.) State v. Milner, supra, 130 Conn.App. at 26–27, 21 A.3d 907. As the Appellate Court noted, however, neither it nor this court had yet determined “whether a collateral attack on the intervening criminal conviction has the same effect as a direct appeal.” Id., at 27, 21 A.3d 907. The Appellate Court answered this question in the negative, holding that “a collateral attack on the intervening criminal conviction does not serve to revive the controversy such that mootness is averted.” ⁶Id.

The defendant then petitioned this court for certification. We granted the defendant's petition to consider his contention that an appeal from a finding of violation of probation is not moot when, as here, the criminal conviction on which that finding is based is being challenged in a habeas corpus action. State v. Milner, supra, 302 Conn. at 926, 28 A.3d 336. Between our grant of certification and the date oral argument was held in this court, however, the habeas court dismissed the defendant's habeas corpus action after the defendant, who recently had been released from prison, failed to appear for a status conference and was “unable to be located.” The defendant has not appealed from the judgment of dismissal.

I

The dismissal of the habeas corpus action raises the issue of whether the certified question in this appeal has been rendered moot. The defendant contends that the question may be reached under an exception to the mootness doctrine or under the exercise of our supervisory authority. We conclude that the appeal is moot and reject the defendant's arguments seeking to avoid the consequences of mootness.

“Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [this] court's subject matter jurisdiction....” (Internal quotation marks omitted.) State v. Preston, 286 Conn. 367, 373, 944 A.2d 276 (2008). “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 through its disposition of the merits, a case has become moot.” (Citation omitted; internal quotation marks omitted.) State v. T.D., supra, 286 Conn. at 361, 944 A.2d 288. Because mootness implicates a court's subject matter jurisdiction, it presents a question of law over which we exercise plenary review. Id.

Turning to the present case, we conclude that this appeal is moot. Having agreed to plead guilty to the very conduct on which the finding of violation of probation was based, and having failed to maintain any type of challenge—collateral or otherwise—to the resulting conviction, the defendant has extinguished any controversy as to whether he violated the conditions of his probation. See id., at 366, 944 A.2d 288 (“If a defendant has been convicted of criminal conduct, following ... [an] Alford plea ... and the defendant does not challenge that conviction by timely appealing it, then the conviction conclusively establishes that the defendant engaged in that criminal conduct. An appeal challenging a finding of violation of probation based on that conduct is, therefore, moot.” [Emphasis added.] ). ⁷

Moreover, as we have previously explained, in insisting upon nothing less than “the vigorous presentation of arguments concerning the matter at issue,” the requirement of an actual controversy “ensure[s] that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.” (Internal quotation marks omitted.) State v. Preston, supra, 286 Conn. at 374, 944 A.2d 276. By failing to pursue his challenge to the gun...