State v. Rodriguez

320 Conn. 694

132 A.3d 731

STATE of Connecticut

v.Josue RODRIGUEZ.

No. 19199.

Supreme Court of Connecticut.

Argued Nov. 4, 2015.

Decided March 15, 2016.

David V. DeRosa, assigned counsel, for the appellant (defendant).

Harry Weller, senior assistant state's attorney, with whom, on the brief, was Brian Preleski, state's attorney, for the appellee (state).

ROGERS, C. J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ROBINSON and VERTEFEUILLE, Js.

McDONALD, J.

When a criminal defendant has been found to have violated the terms of his probation on the basis of allegations that he has committed a new crime while on probation, his appeal from the finding of violation of probation, contending that there was insufficient evidence for the trial court to conclude that he committed the new crime, is rendered moot if, subsequent to that finding, he either pleads guilty to or is convicted at trial of having committed the new crime. This is true because, as a matter of law, when a condition of probation is that the offender is to refrain from violating any criminal laws, conviction of a new crime conclusively establishes a probation violation. In State v. T.D., 286 Conn. 353, 360, 944 A.2d 288 (2008), however, we recognized a narrow exception to this rule: when a defendant under these circumstances takes a timely direct appeal from his conviction on the new criminal charge, his violation of probation cannot be presumed, and an appellate court is not barred from considering the merits of the probation violation appeal. The question presented by this appeal is whether this exception to the mootness doctrine extends to cases in which the defendant fails to take a timely appeal from his guilty plea to the new crime but, instead, challenges the plea collaterally in a habeas corpus proceeding. We conclude that a habeas corpus petition, unlike a direct appeal, does not keep alive a defendant's claim that there was insufficient evidence to find him in violation of his probation.

The relevant factual and procedural history is set forth in the opinion of the Appellate Court. See State v. Rodriguez, 130 Conn.App. 645, 646–49, 23 A.3d 826 (2011). "In 2005, the defendant [Josue Rodriguez] was convicted of sale of narcotics in violation of General Statutes § 21a–277 (a), and sentenced to twelve years incarceration, execution suspended, with five years probation. As a condition of the defendant's probation, he was not to violate the criminal laws of the state. In 2007, the defendant was convicted of risk of injury to a child in violation of General Statutes § 53–21(a)(1) and burglary in the third degree in violation of General Statutes § 53a–103. He was sentenced to a total effective term of ten years incarceration, execution suspended, and five years probation. The defendant also was found in violation of his probation imposed in 2005, as a result of those offenses. His probation was not revoked, but, rather, it was to run concurrently with the probationary term imposed for the [2007] conviction. The conditions of his [2007] probation included, inter alia, no contact with the victim, Damaris Sanchez, and a ‘zero tolerance’ provision for any [future] violations." Id., at 646–47, 23 A.3d 826.

"In the early morning hours on November 14, 2008, Sanchez, the defendant's former wife with whom he had an ‘on and off’ relationship, was asleep in her home when she awoke to the smell of gasoline fumes. When she looked outside the house, she saw a shadowy human figure walk near the front of her house. When she saw the person's face, she recognized the person as the defendant. She saw the defendant light a lighter near the hood of her car, and she yelled to him, ‘what are you doing to my car.’ The defendant ran away. Once outside, Sanchez noticed that the defendant had vandalized her house and car with obscene words and phrases.

"On April 13, 2009, the court found that the defendant violated his probation by committing criminal mischief and violating the no contact order. The court revoked his probation and sentenced him to serve the entire twelve years of his original 2005 sentence." Id., at 647, 23 A.3d 826.

Later that day, the defendant "appeared before another judge on the underlying criminal charges and pleaded guilty, pursuant to the Alford doctrine,¹ to attempt to commit arson in the second degree in violation of General Statutes §§ 53a–112 and 53a–49. The defendant was thereafter sentenced to eight years incarceration, concurrent to the twelve year sentence imposed for violating probation." Id., at 648–49, 23 A.3d 826.

The defendant filed a timely appeal from the judgment of the trial court finding him in violation of his 2005 probation, contending, among other things, that there was insufficient evidence for the court to find by a preponderance of the evidence that he had violated the terms of his probation. Id., at 646, 23 A.3d 826. The defendant, however, did not take a timely appeal challenging his guilty plea to the charge of attempt to commit arson. Instead, on July 30, 2009, three months after the period in which to take an appeal had expired, he filed a petition for habeas corpus, claiming that the attorney who represented him at both of the April 13, 2009 hearings was ineffective and subject to conflicts of interest, and seeking relief from both the arson conviction and the finding of probation violation. Rodriguez v. Warden,Superior Court, judicial district of Tolland, Docket No. TSR–CV–09–4003132–S.

On appeal from the trial court's judgment finding a violation of probation, the Appellate Court dismissed the defendant's sufficiency challenge as moot. State v. Rodriguez, supra, 130 Conn.App. at 649, 23 A.3d 826. Relying on its decision in State v. Milner, 130 Conn.App. 19, 21 A.3d 907 (2011), appeal dismissed, 309 Conn. 744, 72 A.3d 1068 (2013), the Appellate Court concluded that the defendant's plea of guilty to the arson charge conclusively established that he had violated the terms of his 2005 probation. The court also concluded that his collateral challenge by way of the habeas corpus petition, contending that the plea was the result of ineffective counsel, did not create or revive an actual controversy as to whether he had violated probation. State v. Rodriguez, supra, at 648–49, 23 A.3d 826.

We granted certification to appeal, limited to the following question: "Did the Appellate Court properly conclude that the defendant's sufficiency of the evidence challenge to the trial court's finding that he had violated his probation was rendered moot by his guilty plea to the underlying criminal charges, despite the fact that he is now challenging that guilty plea in a pending habeas corpus proceeding?" State v. Rodriguez, 310 Conn. 907, 76 A.3d 628 (2013). After oral argument, we also asked the parties to submit supplemental briefs addressing the question whether, if we conclude that the present appeal is moot, and if the defendant subsequently were to prevail in his habeas action resulting in the vacating of the underlying arson conviction, either this court or the habeas court would have the jurisdiction and authority to reinstate his appellate rights in this matter. Additional facts will be set forth as appropriate.

The defendant's principal claim is that the Appellate Court improperly determined that his appeal, contending that there was insufficient evidence to support the trial court's finding that he had violated the terms of his probation, was moot because he subsequently pleaded guilty to one of the alleged crimes underlying that finding. Specifically, he contends that, by filing a habeas corpus petition attacking that guilty plea during the pendency of the violation of probation appeal, he preserved a live controversy as to whether he did in fact commit a crime while on probation. The state, by contrast, contends that seeking habeas relief from the intervening conviction, unlike a timely appeal, does not preserve a live controversy with respect to the underlying criminal conduct and, accordingly, that the Appellate Court properly concluded that the defendant's appeal was moot. We agree with the state.

The following principles and precedents are relevant to the disposition of the defendant's claim. "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. Mootness presents a question of law over which we exercise plenary review. Id.

In State v. McElveen, 261 Conn. 198, 203, 217, 218, 802 A.2d 74 (2002), "the defendant's probation was revoked after he was found to have violated it by attempting to rob a food delivery person.... The defendant appealed from the judgment revoking his probation, claiming that the evidence was insufficient to support the finding of a violation.... During the pendency of his appeal, the defendant pleaded guilty to one count of attempted robbery in the third degree.... Consequently, we concluded that the appeal was moot because there no longer existed an actual controversy over whether the defendant had committed the criminal conduct underlying the violation of probation.... We explained [that] [t]he defendant is seeking review of the trial court's determination that he violated probation by virtue of his criminal conduct.... By admitting to that very conduct by...