State v. Walcott

184 Conn.App. 863

196 A.3d 379

STATE of Connecticut

v.Ijahmon WALCOTT

AC 40252

Appellate Court of Connecticut.

Argued April 10, 2018

Officially released September 18, 2018

Dana H. Sanetti, assistant public defender, for the appellant (defendant).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Richard J. Rubino, senior assistant state's attorney, for the appellee (state).

DiPentima, C.J., and Alvord and Bear, Js.

ALVORD, J.

The defendant, Ijahmon Walcott, appeals from the judgment of the trial court revoking his probation and imposing a sentence of thirteen years incarceration, execution suspended after four years, with three years of probation. On appeal, the defendant claims that the court abused its discretion by relying on unproven facts when it revoked his probation and sentenced him during the dispositional phase of the violation of probation proceeding. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. On September 9, 2005, the defendant pleaded guilty to one count of assault in the first degree, in violation of General Statutes § 53a-59 (a) (3), and one count of carrying a pistol without a permit, in violation of General Statutes (Rev. to 2003) § 29-35 (a). The two convictions arose from an incident that occurred on November 10, 2003, when the defendant was fifteen years old and shot a woman in the chest. The court imposed a total effective sentence of twenty-five years incarceration, suspended after twelve years, followed by five years of probation. In addition to the standard conditions of probation, the sentencing court imposed special conditions of probation. The defendant was released from incarceration on October 20, 2014, and his probationary period commenced.

The standard and special conditions of his probation required, inter alia, the defendant to submit to random urine testing and mental health evaluation and/or treatment, not possess any drugs and/or narcotics, and "not violate any criminal law of the United States, this state or any other state or territory." On October 23, 2014, the defendant signed the conditions of probation form, acknowledging that he read the form, and that he understood the conditions and would abide by them.

On December 7, 2015, the defendant, who was still on probation, was arrested and subsequently charged with, inter alia, criminal possession of a revolver in violation of General Statutes § 53a-217c, and possession of a controlled substance in violation of General Statutes § 21a-279 (a) (1). Thereafter, on March 31, 2016, he was charged with violating the conditions of his probation in violation of General Statutes § 53a-32.

The record reveals that the following events led to the defendant's arrest on December 7, 2015. Officer Robert Fogg, a member of the shooting task force for the Hartford Police Department, testified that he was conducting surveillance in the vicinity of 80 Cabot Street in Hartford on December 7, 2015. He was accompanied by Detective Brian Connaughton from the Windsor Police Department. They were dressed in plain clothes and sat in an unmarked truck preparing to execute an arrest warrant for Antonio Keane and a search warrant for 80 Cabot Street. Although the defendant was not the target of the search warrant, Fogg and Connaughton observed the defendant leave through the front door of 80 Cabot Street and lock the door behind him with a key. Fogg and Connaughton drove closer to the defendant, determined that he was not Keane, and continued to observe 80 Cabot Street.

The defendant walked past the officers' truck multiple times, and Fogg and Connaughton, believing that the defendant had identified them as police officers, called upon other officers to continue the surveillance of 80 Cabot Street before they left the area. Later that day, officers saw Keane leaving 80 Cabot Street, and took him into custody while other members of the shooting task force secured the house. Fogg and Connaughton returned to 80 Cabot Street with the search warrant, and they joined the other officers. Keane did not have a key on his person, and the officers had to break down the door in order to execute the search warrant.

The officers searched the apartment that is located on the second and third floors, which has two bedrooms on each floor. In one of the bedrooms on the second floor, which Fogg identified as Keane's bedroom, the officers found plastic bags next to a glass container, which contained a razor blade and a digital scale; there was a white residue on the razor blade, scale, and container. In the drawer of a nightstand in Keane's bedroom, the officers found a plate containing a white, rock-like substance, another razor blade, and a second digital scale. Officers also found several individually packaged pieces of a white, rock-like substance. Connaughton performed a field test on the rock-like substances, and they tested positive for the presumptive presence of crack cocaine.

Fogg also testified that, in a pair of athletic shoes in a closet in one of the bedrooms on the third floor, they found a small revolver, a few bullets, and a bag containing a white, rock-like substance; the revolver was sticking out of the right shoe with the bullets resting on top of the shoe, and the white, rock-like substance was protruding from the left shoe. Connaughton performed a field test on the substance, and it tested positive for the presumptive presence of crack cocaine. Fogg further testified that officers found additional ammunition throughout that bedroom, including a loaded magazine for a firearm. In that same bedroom, among various personal items and clothing, the officers also found a letter addressed to the defendant with his address listed as 391 Shaker Road in Enfield, which, Fogg testified, is the location of a prison facility.

After completing the search of the premises, the officers exited the house and observed the defendant playing basketball on the street in front of 80 Cabot Street. The officers identified the defendant and arrested him on the basis of an unrelated warrant, but they subsequently also charged the defendant with possession of the revolver and narcotics that were found in the third floor bedroom closet at 80 Cabot Street. The defendant signed a form acknowledging that he received Miranda¹ warnings and waived his right to an attorney. Fogg then conducted an interview, during which the defendant stated that the clothes and personal items in the third floor bedroom at 80 Cabot Street, the same room in which the revolver and narcotics had been found, belonged to him. Although he stated that his possessions had been there for two months, he said that the revolver, ammunition, and narcotics did not belong to him. Keane, however, told the police that all of the illegal items found at 80 Cabot Street belonged to the defendant, and that the defendant had been living at 80 Cabot Street for more than one year. Keane also stated that his DNA likely would be found on the revolver, ammunition, and drugs because he had handled them in the past.

A probation revocation hearing was held over the course of two days, on September 15 and 28, 2016. On September 28, 2016, the court issued its oral decision. The court found, and the defendant does not contest on appeal, that the state had established by a preponderance of the evidence that the defendant had violated the special conditions of his probation² and the standard condition of his probation that he not violate any criminal law of this state. Specifically, the court found "by a preponderance of the evidence and on the reliable and credible evidence and the reasonable inferences to be drawn therefrom" that the defendant committed two crimes while he was on probation: possession of a controlled substance, in violation of § 21a-279 (a) (1), and criminal possession of a revolver, in violation of § 53a-217c (a).

After finding that the defendant violated conditions of his probation, the court proceeded to the dispositional phase of the proceeding. The court heard from the state and defense counsel before issuing its oral decision. The court stated in relevant part: "It's significant also that after beginning probation he violated the conditions almost immediately, almost right away, those conditions dealing with drug treatment and so on, all have been gone into on the record earlier. So, with reference to the [constructive possession] crimes, the possession of a narcotic substance and, of course, the possession of a revolver by a convicted felon, those occurred very early on in probation, during probation, roughly perhaps a little bit over a year when that particular incident occurred with the execution of the search warrant at 80 Cabot Street, and the drugs and the revolver were found. And even before that, while on probation, there was the domestic offense, as the state pointed out, and that involved, I'm told, assaultive conduct. So, right out of the state's prison and then there were these matters, negative matters, concerning his performance on probation.

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"On the nonmitigating side of this is, as I alluded to, the seriousness of the possession of a revolver by a convicted felon .... And this court has an obligation, a very serious obligation, balanced against rehabilitation, and a very serious obligation to undertake to effectuate the protection of society. And the possession of guns, particularly under these circumstances, in a premises which, as far as I can see from the evidence, was almost awash with drugs, illegal drugs. In any event, that's a very serious consideration and a very serious offense.

"Weighing all of those circumstances, it's my opinion that a split sentence is still appropriate. As I said, I recognize the probation officer's position, but I don't think probation should give up quite at this point with somebody this age. And I would be inclined, in...