State v. Minh Anh Han

201 Conn.App. 568

242 A.3d 1067

STATE of Connecticut

v.MINH ANH HAN

AC 43016

Appellate Court of Connecticut.

Argued September 15, 2020

Officially released December 1, 2020

Trent A. LaLima, with whom, on the brief, was Hubert J. Santos, Hartford, for the appellant (defendant).

Kathryn W. Bare, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, former state's attorney, and Adam Scott, supervisory assistant state's attorney, for the appellee (state).

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

ALVORD, J.

The defendant, Minh Anh Han, appeals from the judgment of the trial court terminating¹ his participation in the accelerated rehabilitation program. On appeal, the defendant claims that the trial court abused its discretion by sua sponte terminating his participation in the program.²

We conclude that the court abused its discretion in terminating the defendant's participation in the accelerated rehabilitation program. Accordingly, we reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. On May 12, 2017, the defendant was arrested and charged with three counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (7), and one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (5).³ On May 15, 2018,

the state filed a substitute information. The state withdrew the second degree sexual assault charges⁴ and charged the defendant only with one count of sexual assault in the fourth degree. On that date, the defendant applied for admission to the accelerated rehabilitation program pursuant to General Statutes § 54-56e.⁵

On June 5, 2018, the trial court, Oliver , J. , denied the defendant's application for the accelerated rehabilitation program after concluding that the allegations against the defendant were too serious and that it could not

find that the defendant would probably not offend again in the future. On November 29, 2018, the trial court, McNamara , J ., reconsidered the defendant's application for accelerated rehabilitation and granted it. The court imposed the maximum statutory period of supervision, two years, and the following conditions on the defendant: "[1] obey all state and federal laws ... [2] comply with any other counseling and treatment deemed appropriate by [the Court Support Services Division, Office of Adult Probation (probation)] and continue with treatment ... [3] have no contact with [the] victim ... and [4] after a period of [accelerated rehabilitation and with] the approval of [probation] ... may [travel] overseas for medical work."

By letter dated March 8, 2019, a probation officer, Amy Gile, sent a letter to the court, copying the state's attorney office and defense counsel, in which she asserted the following: Upon the defendant's admission to the program, probation referred the defendant for a sex offender evaluation. On January 28, 2019, he was "deemed appropriate" for sex offender treatment at The Connection, a center for the treatment of problem sexual behavior. The evaluator at The Connection assessed the defendant as a "moderate" risk for reoffending. On February 14, 2019, the defendant signed a treatment agreement with The Connection, which included, inter alia, a condition that he "not [act] in a position of power over others."

Thereafter, the defendant disclosed to probation that he was a participant in the ManKind Project. Probation found that "the Man[K]ind Project is a global network of nonprofit organizations focused on modern male initiation, self-awareness, and personal growth." The defendant was participating in ManKind Project online groups and hosting meetings at his home, and he had submitted an "action plan" to probation requesting that he be allowed to attend out of state retreats with the ManKind Project, including one in New York. Probation

contacted the leader of the New York retreat and learned that the defendant would attend the retreat as a "staff man" and that he potentially would be in a leadership position over other participants.

In her March 8, 2019 letter to the court, Officer Gile articulated a concern that the defendant's "self-disclosed participation in the ManKind Project place[s] him in a power ... position over vulnerable members." Probation then requested that the court impose sixteen additional conditions as part of the defendant's accelerated rehabilitation program and require him to sign a computer access agreement "in order to effectively supervise the [defendant's] [accelerated rehabilitation] and properly enforce The Connection [t]reatment [a]greement."⁶

On March 26, 2019, over the defendant's objection, the court entered a bond condition of no contact with the ManKind Project but did not rule on probation's requested additional accelerated rehabilitation conditions. On May 3, 2019, the defendant filed a written objection to some, but not all, of the additional conditions proposed by probation in the March letter as "unnecessary, unreasonable, overly burdensome, and unrelated to the underlying alleged offense."⁷ The defendant stated that he "[did] not object to [probation's] proposed condition requiring preapproval to attend ManKind Project retreats and barring him from attending as a staff member."

On May 15, 2019, defense counsel, a prosecutor, and Officer Gile appeared before the court, McNamara , J .,

pursuant to probation's request for the additional conditions. At the hearing, the court stated that it would like to hear from Officer Gile as to why the conditions were necessary. The court asked Officer Gile: "And did you find out anything else about this ManKind Project? It was presented to me that this was a project where people—men would get together and they'd give—be given opportunities for growth, and for leadership, and to set them on the right path. Did you discover that this is, in fact, what it is?" Officer Gile responded: "Well, based on talking to [the leader of the New York ManKind Project retreat], he did say it was individuals that were trying to [achieve] self-growth, change their lives, better themselves."

The state concluded its argument by asking that the court impose the additional conditions requested by probation: "[T]he allegations ... are serious, but, once again, not so serious that Your Honor couldn't find that [the defendant] shouldn't have a shot at having them dismissed. So ... I'd ask that Your Honor impose the conditions so we can keep ... a good eye on the defendant, and make sure he is somebody who will, in fact, have earned his dismissal in the end." Defense counsel rebutted by asking the court "to consider the conditions individually, rather than all of them being granted."

At the conclusion of the hearing, the court ruled as follows: "You know, the more I read about this case and the more I looked into the ManKind Project, I believe I was told certain things—I was led astray as to what the ManKind Project was. I did do research on the ManKind Project. ... As I view [probation's] requirements, I realize that this [case] is by far too serious for accelerated rehabilitation. As you know the court granted accelerated rehabilitation with my discretion, and now I'm hearing that you don't like the conditions

and you're going to object to certain conditions. Well, I can resolve that pretty easily. And I'm going to do that today. ... I'm going to terminate his accelerated rehabilitation. [The defendant] does not want to follow the agreements, he does not want to follow the requirements. I feel this is a by far more serious case than I was led to believe. Especially the more I heard about the ManKind Project. ... [T]he ManKind Project, as far as I know, may be a fraternal organization, but it also has some interesting idiosyncrasies, where parties go and they're subjected to more like a [boot camp like] atmosphere where parties are told not to wear any clothing when they're there. So I am going to terminate the accelerated rehabilitation, I'm going to place this back on [the] pretrial docket. What date would you like to come back and we can discuss this?"

In response to defense counsel's clarification that the defendant was "willing to abide by any condition" that the court may impose, the court stated: "It's too serious. After what I've learned about the ManKind Project and hearing [from probation] and reviewing [probation's] report ... it's by far too serious for ... accelerated rehabilitation. I made a mistake. I was led astray by certain facts which has bothered me since this program was granted. I thought it would be all right, but I'm more convinced now that it would not be the right thing to do with this case."⁸ Accordingly, the court terminated the defendant's participation in the accelerated rehabilitation

program and returned the case to the pretrial docket. This appeal followed.⁹

I

At the outset, we address the state's argument that the trial court's ruling is not a final judgment for the purposes of appeal and, thus, this court lacks jurisdiction to consider it. The defendant characterizes the trial court's ruling as a "termination" of his participation in the accelerated rehabilitation program. The state contends that the trial court's ruling is not a termination, but a "reconsideration" of its decision granting the defendant's participation in the accelerated rehabilitation program and a "denial" of the application. As such, the state argues that the trial court's ruling is not a final judgment for the purposes of appeal, and, therefore, this court should dismiss the appeal for lack of jurisdiction. We agree with the defendant that the trial court's ruling constituted a termination of his participation in the accelerated rehabilitation program and, accordingly, that it is a final judgment for the purposes of appeal.

"Unless otherwise provided by law, the jurisdiction of our appellate courts is restricted to appeals from final...