State v. Torell

307 A.3d 280

223 Conn.App. 21

STATE of Connecticut

v.Scott TORELL

(AC 45444)

Appellate Court of Connecticut.

Argued September 29, 2023

Officially Released December 19, 2023

Kevin Semataska, deputy assistant public defender, with whom, on the brief, was Richard E. Condon, Jr., senior assistant public defender, for the appellant (defendant).

Meryl Gersz, senior assistant state’s attorney, with whom, on the brief, were John P. Doyle, Jr., state’s attorney, and Michele C. Lukban and Maxine V. Wilensky, former senior assistant state’s attorneys, for the appellee (state).

Susan Castonguay, assistant attorney general, with whom, on the brief, was William Tong, attorney general, for the appellee (Psychiatric Security Review Board).

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

HARPER, J.

₂₃The defendant, Scott Torell (acquittee),¹ appeals from the judgment of the trial court granting the state’s petition seeking his continued commitment to the jurisdiction of the Psychiatric Review Board (board) pursuant to General Statutes § 17a-593 (c). The acquittee claims that the court improperly denied (1) his motion to dismiss alleging a violation of substantive due process, (2) his motion to dismiss alleging a violation of procedural due process, and (3) his motion to strike a portion of the board’s report to the court recommending a period of continued commitment not to exceed ten years, We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. On May 11, 2005, the acquittee was found not guilty by reason of mental disease or defect under General Statutes § 53a-13² of ₂₄criminal charges alleged in two separate dockets. In Docket No. CR-03-021704, the acquittee was charged with attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (1), five counts of sexual assault in the third degree in violation of General Statutes § 53a-72a (a), and three counts of risk of injury to a child in violation of General Statutes (Rev. to 2001) § 53-21 (a) (2).³ In Docket No. CR-04-0223362, the acquittee was charged with sexual assault in the third degree in violation of General Statutes § 53a-72a, two counts of sexual assault in the fourth degree in violation of General Statutes, § 53a-73a, and two counts of risk of injury to a child in violation of General Statutes (Rev. to 2003) § 53-21.⁴ On July 18, 2005, the court committed⁵ the acquittee to the₂₅ jurisdiction of the board for a period of time not to exceed fourteen years.⁶ At this time, the acquittee was diagnosed with, inter alia, pedophilia, sexual attraction to both genders, nonexclusive type.

[1–4] On November 21, 2012, the acquittee filed an application for discharge, arguing that he no longer suffered from a psychiatric disability to the extent that his discharge from the jurisdiction of the board would constitute a danger to himself or others.⁷ After an extended delay, the court, Hon. Jon C. Blue, judge trial referee, held a hearing on the acquittee’s application on January 23, 2018. On February 21, 2018, the court issued a memorandum of decision dismissing the acquittee’s application for discharge. The court found that the acquittee ₂₆had failed to establish, by a preponderance of the evidence, that he would not be a danger to himself or to others if his application was granted and he was discharged from the jurisdiction of the board.⁸ In support of this finding, the court referenced the acquittee’s past volatile behavior, poor self-control, and refusals to discuss the offenses leading to his arrests, to take responsibility for his behavior, to participate in most recommended treatment, to consider recommendations that he take psychotropic medications, and to take part in group therapy. Additionally, the court noted that, in its December 5, 2017 report, the board indicated that the acquittee had made no progress since the prior report dated December 22, 2015, and continued to find that he required "care, custody and treatment for his mental illness and without such, would pose a danger to himself or others."

[5] Prior to the expiration of the term of commitment, on January 25, 2019, the state filed a petition for continued commitment pursuant to § 17a-593 (c),⁹ Therein, it alleged that "reasonable cause exists to believe the acquittee remains mentally ill to the extent that this discharge at the expiration of his maximum term of commitment (7/17/2019) would constitute a danger to [himself] or other[s]."¹⁰ The court referred the petition ₂₇to the board¹¹ for an evaluation and report pursuant to § 17a-593 (d).¹²

The board set forth the following findings of fact in its report: "[The acquittee] is an individual with psychiatric disabilities diagnosed as Unspecified Paraphilic Disorder;¹³ Cannabis Use Disorder In Sustained Remission in a Controlled Environment, Unspecified Personality Disorder with Borderline and Schizotypal Traits, and Rule Out Autism Spectrum Disorder. … During the first several years of [his] hospitalization … [h]e demonstrated minimal involvement in treatment activities and denied responsibility for his sexual offenses against children. Between October, 2010, and March, 2012, [the acquittee] demonstrated adequate progress such that he was transferred to a less restrictive hospital setting. Since then, [the acquittee] has not made any appreciable progress but instead has had several ₂₈instances of sexually inappropriate and aggressive behaviors. On two separate occasions, he fractured his hand punching a window and a door. Continuing to exhibit poor insight regarding his psychiatric illness and its relationship to his criminal offenses, he has failed to accept responsibility for his criminal actions, remaining adamant that he was not responsible for his sexual abuse of children. He has also been unable or unwilling to address the index offense in individual therapy, and attempts to encourage him to do so have been met with excessive defensiveness. He has additionally refused to participate in other therapeutic treatment activities, and remains opposed to his treatment team’s recommendation that he consider psychotropic medications to help manage his mood lability and impulsivity. [The acquittee] has, in short, failed to appreciate that his psychiatric illness and the resultant sexual offenses brought him under the [b]oard’s jurisdiction. The [b]oard, therefore, finds that [the acquittee] remains at risk for reengaging in sexually offending behavior and that he requires care, custody and treatment for his mental illness and that without such treatment he would pose a danger to himself or others. The [b]oard further finds that [the acquittee] continues to require the [b]oard’s oversight and that he cannot be safely discharged from its jurisdiction." (Footnote added.) In conclusion, the board requested that the court grant the petition for continued commitment for a period not to exceed ten years.

On September 11, 2020, the acquittee requested that the court refer the matter back to the board for the purpose of preparing an updated report. The court granted this request. The board subsequently submitted its updated report to the court on January 28, 2021. The updated report noted that the acquittee’s diagnosis had been changed from unspecified paraphilic disorder to autism spectrum disorder. The board found that the diagnosis change "has not resulted in any clinical progress. In fact, his limited engagement in treatment ₂₉declined further and he exhibited threatening behaviors toward other patients. Concerned about his risk, the hospital recommended to [the acquittee] that he consider medication to address the possibility of psychotic symptoms. [The acquittee] refused to comply with this recommendation. He remains resistant to attempts by his hospital treaters to individualize treatment modalities to accommodate his autism disorder." The board iterated its view that the acquittee could not be safely discharged from its jurisdiction and again recommended that the court grant the state’s petition for continued commitment for a period not to exceed ten years.

On January 29, 2021, the acquittee filed a motion to strike the ten year recommendation contained in the board’s reports submitted to the court. On February 16, 2021, the acquittee filed motions to dismiss the state’s petition for continued commitment based on violations of his rights to substantive and procedural due process. With respect to the former, the acquittee argued that § 17a-593 (c), as applied to him, violated his substantive due process rights as guaranteed by the fifth and four- teenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution; specifically, his rights to freedom from detention of infinite duration and to treatment as an involuntarily confined individual. As to the latter, the acquittee contended that § 17a-593 (c), as applied to him, violated article first, § 8, of the Connecticut constitution because it failed to provide him with certain procedural protections otherwise provided by the civil commitment process, including the right to periodic judicial review.

On October 28, 2021, the board submitted another report, dated October 26, 2021, to the court regarding the petition for continued commitment.¹⁴ After reviewing ₃₀numerous reports from the hospital and considering the testimony from various medical providers, the board noted that the acquittee "exhibits a complex psychological profile that includes autism, personality disorder, and a primary psychotic disorder." The board specifically iterated that the acquittee’s primary diagnosis was changed from unspecified paraphilic disorder to autism spectrum disorder in 2019, but that this change "has not resulted in any clinical progress, despite the hospital’s continuous attempts to engage [the acquittee] in treatment and implement...