State v. Obas

147 Conn.App. 465

83 A.3d 674

STATE of Connecticut

v.Mycall OBAS.

No. 34598.

Appellate Court of Connecticut.

Argued Oct. 22, 2013.

Decided Jan. 14, 2014.

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom were Sean McGuinness, deputy assistant state's attorney, and, on the brief, Stephen J. Sedensky III, state's attorney, for the appellant (state).

Neal Cone, senior assistant public defender, with whom was Rosemarie Chapdelaine, senior assistant public defender, for the appellee (defendant).

DiPENTIMA, C.J., and SHELDON and FLYNN, Js.

FLYNN, J.

At the heart of the case before us is the defendant's request to be exempted from continued registration as a sex offender pursuant to General Statutes § 54–251. The defendant, Mycall Obas, was convicted of one count of sexual assault in the second degree in violation of General Statutes (Rev. to 2001) § 53a–71 (a)(1), resulting from a 2002 offense when he was age eighteen, committed against a minor, age fifteen, who could not by law consent. The court granted the defendant's motion made approximately seven years after his guilty plea and sentencing, which, among other things, had imposed that condition of probation. Pursuant to General Statutes § 54–96, the state requested permission to appeal from the granting of the defendant's motion, which the court denied. The state now appeals from that denial of the right to appeal, as well as the court's judgment granting an exemption from registering and releasing the defendant of certain other conditions imposed at his sentencing. It does so on grounds that (1) permission to appeal was improperly denied and (2) any exemption from registration must be made at the time of the defendant's sentencing, or not at all. As a third reason for appeal, the state argues that registration as a sex offender and the condition of no unsupervised contact with any minor under sixteen years of age was part of the plea bargain struck on December 11, 2003, and that, once the court accepted it, as a contract, the court was without authority to change it in a later proceeding. We disagree and conclude that although the right to appeal was improvidently denied to the state, the court had authority to grant the exemption and modification of the defendant's probationary conditions. Accordingly, we affirm that aspect of the judgment of the trial court.

The following facts and procedural history inform our review. The defendant pleaded guilty to one count of sexual assault in the second degree on December 11, 2003. The plea stemmed from a 2002 incident when the defendant was eighteen years old and a high school senior. The victim was a fifteen year old student who attended the same school as the defendant. According to the prosecutor, the victim never complained that her sexual involvement with the defendant was not consensual.

The defendant cooperated fully with the police investigation and agreed to testify against his codefendant at trial. As part of the plea agreement struck between the defendant and the state, the defendant received a ten year sentence of imprisonment, suspended after the mandatory minimum nine months, followed by ten years of probation. The prosecutor explained to the court: “The conditions would be: to register as a sex offender, that's a ten year registration.... [The] sex offender evaluation and any treatment deemed necessary. No contact with any individual under, unsupervised contact, with anyone under [sixteen] and no contact, whatsoever, directly or indirectly with the victim.” ¹ There was no agreement between the defendant and the state that the defendant would never seek modification of the conditions of probation.

Following the prosecutor's recitation of the underlying facts, plea agreement, and recommendation for a split sentence followed by probation with special conditions, the court canvassed the defendant.

“The Court: You've heard the agreed upon recommendation, which is ten years, execution suspended after nine months, which is a mandatory minimum, ten years of probation, standard issues—standard conditions of probation, special conditions of sex offender evaluation and treatment, as deemed necessary and appropriate by Probation. Registration under sex offender status for [ten] years, no contact with the victim and no unsupervised contact with anyone under the age of [sixteen] years of age. Do you understand that to be the agreed upon recommendation?

“The Defendant: Yes, Your Honor.”

The court accepted the defendant's plea and imposed sentence in accordance with the agreed upon disposition. The defendant was ordered, “[i]n addition to the standard conditions of probation,” to register as a sex offender for a period of ten years, to undergo sex offender evaluation and treatment as deemed necessary, to have no unsupervised contact with anyone under age sixteen and to have no contact with the victim.

Upon his release from custody in November, 2004, the defendant began reporting to the Office of Adult Probation, registering as a sex offender and receiving sex offender treatment. He violated his probation in 2005 by failing to report a change of address following his parents' eviction from their home. For this violation, two additional years were added to his probation. Since the 2005 violation, the defendant has reported timely to his assigned probation officer, has continued to receive sex offender treatment, and has not engaged in any additional criminal activity. He earned a high school diploma, enrolled in community college and has maintained a full-time job.

In 2011, the defendant filed a motion to modify the conditions of his probation. Specifically, the defendant asked that the term of his probation be reduced and that the order that he register as a sex offender be terminated. As a predicate for the hearing on the defendant's motion, the court ordered him to undergo an additional psychosexual evaluation. The evaluation concluded that the defendant presented a low risk of reoffending and that he “would not be one whom the community should fear.” (Internal quotation marks omitted.) Three separate probation status reports authored by the defendant's supervising officer in the sex offender unit lauded his rehabilitation and raised no objection to the defendant's requested modification.

Following contested hearings on January 31, 2012, and April 20, 2012,² the court, Blawie, J., exempted the defendant from the continued obligation to register as a sex offender under § 54–251. Pursuant to § 54–251(b), the court made findings that the defendant was under nineteen years of age at the time of the offense and that registration was not required for public safety. The court also modified the probation condition prohibiting unsupervised contact with anyone under age sixteen to allow such interactions but only to the extent approved by the Office of Adult Probation. In addition, the court allowed the defendant to travel to South Africa as approved by the Office of Adult Probation. The court denied that part of the defendant's motion in which he sought to reduce his probation from twelve years to ten years.

The state filed a motion requesting permission to appeal from the trial court's modification order. The trial court denied the state's request, but the state nonetheless filed this appeal. The trial court, sua sponte, issued a memorandum of decision on May 30, 2013, articulating the reasoning for its decision. The state takes the view that this action by the court was extraordinary since neither party requested an articulation. However, our Supreme Court has explained: “Although we encourage trial courts to issue memoranda of decision at the time of rendering judgment, we recognize that under certain circumstances it is permissible to render a judgment and thereafter issue a memorandum of decision.” Lauer v. Zoning Commission, 246 Conn. 251, 261, 716 A.2d 840 (1998). “A memorandum of decision becomes imperative when an appeal is taken because it provides ... the appellate court with the basis of the trial court's underlying reasoning for its decision.” Id., at 260, 716 A.2d 840.

A memorandum of decision is particularly helpful here because our case law counsels a reviewing court to look to the memorandum in considering whether the trial court's denial of the state's request for permission to appeal constitutes an extreme abuse of discretion. See State v. Peeler, 271 Conn. 338, 409, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S.Ct. 94, 163 L.Ed.2d 110 (2005).

I

We turn first to whether the court improperly denied the state certification to appeal, and conclude that it did.

Section 54–96 provides: “Appeals from the rulings and decisions of the Superior Court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the Supreme Court or to the Appellate Court, in the same manner and to the same effect as if made by the accused.” The statutory language appears clear on its face to permit appeals by the state only “with the permission of the [court]....” However, our state's highest court in State v. James, 261 Conn. 395, 408 n. 18, 408–409, 802 A.2d 820 (2002), essentially adopted the reasoning of Justice Shea's dissenting opinion in State v. S & R Sanitation Services, Inc., 202 Conn. 300, 313–16, 521 A.2d 1017 (1987). In S & R Sanitation Services, Inc., Justice Shea opined: “To the extent that the [majority] opinion may rely on the elaborate discussion by the trial court of the grounds upon which it dismissed the information as its statement of ‘considered reason [s]’ for denying permission to appeal, the implication is that, so long as the memorandum of decision gives more than cursory treatment to the issues, a trial judge has absolute discretion to deny permission to appeal under the statute. The legislature could never have intended to vest in a trial judge such arbitrary authority to preclude...