State v. Wright

942 A.2d 430

106 Conn.App. 295

STATE of Connecticut v. Willis WRIGHT.

No. 28037.

Appellate Court of Connecticut.

Argued January 4, 2008.

Decided March 11, 2008.

Christopher M. Neary, special public defender, for the appellant (defendant).

Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were James E. Thomas, former state's attorney, and Jeffrey Lee, assistant state's attorney, for the appellee (state).

McLACHLAN, BEACH and PELLEGRINO, Js.

BEACH, J.

The defendant, Willis Wright, appeals from the judgment of the trial court revoking his probation pursuant to General Statutes § 53a-32. On appeal, he claims that the court (1) improperly found that there was sufficient evidence before it to establish, by a preponderance of evidence, that he violated the terms of his probation and (2) abused its discretion when it found that the rehabilitative aspects of the defendant's probation were no longer being met. We affirm the judgment of the trial court.

In 2003, the defendant pleaded guilty to possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a) and was sentenced to a term of ten years imprisonment, execution suspended after two years, and five years probation. The defendant also pleaded guilty to reckless endangerment in the first degree in violation of General Statutes § 53a-63 and was sentenced to one year imprisonment, execution suspended, and three years probation, to run concurrently with his sentence on the narcotics charge. In January, 2004, the defendant was released from prison and began serving his probationary term. One condition of his probation was that he not "violate any criminal law of the United States, this state or any other state or territory."

Evidence was presented at the violation of probation hearing from which the court reasonably could have found the following facts. On November 23, 2004, the defendant and his girlfriend, Alisha Padilla, were engaged in a dispute while Padilla was en route to cash a check. After Padilla told the defendant she no longer wanted to speak with him, the defendant grabbed Padilla's purse from her arm, removed several pieces of identification and threw the purse on the ground. Padilla called the police, who arrested the defendant and charged him with robbery in the third degree in violation of General Statutes § 53a-136. Padilla later indicated that she did not want to pursue charges against the defendant. The defendant's probation officer, Emily Cross, noted the arrest but did not pursue a warrant for his arrest for violation of probation at that time.

The following summer, on August 2, 2005, Officer William Rivera of the Hartford police department and United States Marshal Andrew Tingley were assigned to patrol the north end of Hartford as part of a joint task force aimed at combating violent crime. They were in an unmarked car with tinted windows and were dressed in plain clothes. As they were heading north on Main Street, Rivera saw the defendant walking along the street and drove over to the curb. Rivera wanted to speak with the defendant, whom he recognized from a previous arrest, about a shooting that had taken place earlier in the summer in which the defendant had been shot and injured and the defendant's friend had been killed. Rivera also thought the defendant might be in possession of a handgun.

After Rivera had driven to the curb, Tingley rolled down the passenger side front window. The defendant approached the car and, after seeing the occupants, put his hand near his waistband and exposed a black handle. Tingley and Rivera thought the object was a gun, and Rivera sent a dispatch alerting Hartford police that the defendant had a firearm. When the defendant saw Rivera making a police dispatch, he immediately fled northbound on Main Street. Rivera and Tingley pursued the defendant by vehicle and then on foot. Their pursuit was assisted by civilians who told them the direction in which the defendant was headed. Eventually, the foot chase led Tingley and Rivera to 29 Mather Street, a multifamily residence, where they were told by police officers already at the scene that two individuals had run into the building.

One of those officers, Detective Patrick Farrell, after having arrived at the scene, saw that a panel of the right front door of the building appeared to have been kicked in. Farrell looked into the opening and saw an individual hiding in the stairwell. Officers entered the building and detained a Hispanic male. Because he did not fit the description of the defendant, a black male, the officers continued to search the building until they came to a bedroom in the apparently abandoned third floor apartment that was locked from the inside. At that time, there were five or six officers on the third floor, and transmission over the police radio was loud enough for anyone in the third floor to hear that police were present. A canine unit was dispatched, and police announced that a dog was going to search the premises. A police dog searched for but did not locate the defendant. A SWAT team was then dispatched. While waiting for it to arrive, Farrell heard noises coming from the locked bedroom. Officers forced their way into the room and found the unarmed defendant hiding in a closet. The defendant was arrested and charged with burglary,¹ criminal possession of a weapon, carrying a pistol without a permit, theft of a firearm and interfering with a peace officer. After the defendant was arrested, Tingley and Rivera attempted to retrace the defendant's path. They found a firearm in a grassy area behind a fence but had not seen the defendant run past that area. When Cross became aware of the second arrest, she pursued a warrant for the defendant's arrest for violation of probation, as she believed that the beneficial aspects of probation no longer existed for the defendant.

On June 27 and July 20, 2006, a violation of probation hearing was held at which Padilla, Tingley, Farrell, Cross and the defendant testified before the court, Mullarkey, J. After hearing testimony, on July 20, 2006, the court found a violation of a condition of the defendant's probation, concluding, "by more than a fair preponderance of the evidence," that the state had met its burden of proof on the charges of burglary in the third degree and criminal trespass in the second degree. The court further found that "the beneficial and rehabilitative aspects of the defendant's probation not only are no longer being met but were not even being met while the defendant was on probation."

On July 28, 2006, the defendant pleaded guilty to robbery and larceny charges arising out of his conduct on November 23, 2004.² The court sentenced the defendant to serve a total effective sentence of ninety months on those charges. On July 28, 2006, the court also sentenced the defendant to serve a ninety month sentence on the violation of probation charge to run concurrently with his sentence on the burglary and robbery conviction. This appeal followed.

As a preliminary matter, the state claims that, pursuant to State v. Singleton, 274 Conn. 426, 436, 876 A.2d 1 (2005), and State v. Preston, 93 Conn.App. 527, 889 A.2d 845, cert. granted, 278 Conn. 901, 896 A.2d 106 (2006), the defendant's appeal is moot because he pleaded guilty to charges that were included in one of the grounds for the state's claim that the defendant violated the terms of his probation. We are not persuaded.

Mootness implicates the subject matter jurisdiction of this court. State v. Singleton, supra, 274 Conn. at 436, 876 A.2d 1. It is a well settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction. Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116, 125, 836 A.2d 414 (2003). "A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists." (Internal quotation marks omitted.) Board of Education v. State Board of Education, 243 Conn. 772, 777, 709 A.2d 510 (1998). Here, the warrant against the defendant for violation of probation was based on charges arising out of two separate events, namely, the November, 2004 robbery incident and the August, 2005 burglary incident. In its oral decision regarding the violation of probation, however, the court made an unequivocal finding only as to the burglary. Therefore, despite the defendant's guilty plea as to the robbery, an actual controversy still exists as to the conduct that gave rise to the court's finding of a violation of probation. Put another way, as in Singleton, the defendant here pleaded guilty to a crime charged as a basis for violation of probation; unlike in Singleton, however, the defendant did not plead guilty to the same criminal transaction for which probation was revoked. Consequently, we conclude that the defendant's claims on appeal are not moot because a controversy exists as to the burglary charge, on which the probation violation was based, but to which the defendant did not plead guilty.³

I

The defendant first claims that the court improperly found that there was sufficient evidence before it to establish, by a preponderance of evidence, that he violated the terms of his probation.⁴ Specifically, the defendant argues that there was not sufficient evidence to find that he committed burglary in the third degree because the state did not establish (1) that the burglary occurred at night, (2) that the building the defendant entered was occupied and (3) that the defendant intended to commit a crime therein. We disagree.

"A challenge to the sufficiency of the evidence is based on the court's factual findings. The proper standard of review is whether the court's findings were clearly erroneous based on the evidence.... A court's finding of fact is clearly erroneous and its conclusions drawn from that finding lack sufficient evidence when there is no evidence in the record to...