State v. Francis

76 A.3d 744, 146 Conn. App. 448, 2013 WL 5530581, 2013 Conn. App. LEXIS 492
CourtConnecticut Appellate Court
DecidedOctober 15, 2013
DocketAC 34297
StatusPublished
Cited by1 cases

This text of 76 A.3d 744 (State v. Francis) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Francis, 76 A.3d 744, 146 Conn. App. 448, 2013 WL 5530581, 2013 Conn. App. LEXIS 492 (Colo. Ct. App. 2013).

Opinion

Opinion

GRUENDEL, J.

The defendant, Quince A. Francis, appeals from the judgment of the trial court finding him in violation of his probation pursuant to General Statutes § 53a-32. The defendant claims that the court (1) erroneously found that he violated certain conditions of his probation and (2) abused its discretion in sentencing him. We affirm the judgment of the trial court.

In 2003, the defendant pleaded guilty to robbery in the first degree in violation of General Statutes § 53a-134 (a) (2).1 The court sentenced the defendant to aterm of fourteen years incarceration, execution suspended [450]*450after seven years, followed by a five year term of probation. The conditions of his probation required, inter alia, the defendant to “[s]ubmit to random drug screening” and to “not violate any criminal law of the United States, this state or any other state or territory.” On April 27, 2009, the defendant’s probationary period commenced.

The defendant subsequently was involved in a domestic dispute with his wife, Amy Malachi. On June 29, 2010, the defendant appeared before the court, Gold, J., and admitted to having violated the terms of his probation in connection with that incident. The defendant’s probationary period thereafter was continued, though subject to additional conditions requiring him to make “no threats or violence” toward Malachi and to complete a family violence education program.

On November 29, 2010, the defendant submitted to a urinalysis test, as required by the terms of his probation, and tested positive for marijuana. On the morning of December 15, 2010, the defendant approached Malachi as she was walking to work and grabbed her by the throat. As Malachi later testified, “he choked me, and while he was choking me he was saying that he was gonna kill me, [that I was not] gonna make it to work this morning.” When Malachi kicked him, the defendant fled. Malachi then contacted the police, who advised her to proceed to the emergency room at Saint Francis Hospital and Medical Center. Once there, Malachi was treated by physicians in the trauma unit, where she was sedated and intubated. Malachi remained in the hospital’s critical care unit for three days.

The defendant was arrested and charged with three counts of violating his probation in violation of § 53a-32.2 Following an evidentiary hearing, the court found [451]*451that the defendant had violated the terms of his probation. It then revoked his probation and sentenced him to a term of seven years incarceration. This appeal followed.

I

The defendant challenges as clearly erroneous the court’s factual findings that he violated the conditions of his probation by (1) assaulting Malachi, (2) testing positive for marijuana, and (3) interfering with an officer. In response, the state submits that his claim with respect to the assault on Malachi is moot. We agree with the state.

“Mootness implicates a court’s subject matter jurisdiction .... 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.” (Citations omitted; internal quotation marks omitted.) State v. T.D., 286 Conn. 353, 361, 944 A.2d 288 (2008). “[Bjecause [a] determination regarding a . . . court’s subject matter jurisdiction is a question of law, our review is plenary.” (Internal quotation marks omitted.) State v. Alexander, 269 Conn. 107, 112, 847 A.2d 970 (2004).

[452]*452The state argues that the defendant’s challenge to the court’s finding that he violated his probation by assaulting Maiachi is moot because on November 30, 2011, the defendant pleaded guilty, pursuant to the Alford doctrine,3 to the offense of assault in the second degree in violation of General Statutes § 53a-60.4 The defendant did not file a timely direct appeal from that judgment of conviction.

“If a defendant has been convicted of criminal conduct, following either a guilty plea, Alford plea or a jury trial, and the defendant does not challenge that conviction by timely appealing it, then the conviction conclusively establishes that the defendant engaged in that criminal conduct. An appeal challenging a finding of violation of probation based on that conduct is, therefore, moot.” State v. T.D., supra, 286 Conn. 366; see also State v. Singleton, 274 Conn. 426, 439, 876 A.2d 1 (2005) (“[wjhere, subsequent to a finding of violation of probation, a defendant is criminally convicted for the same conduct underlying the violation of probation, his appeal from that judgment of violation of probation is rendered moot because there is no longer any live controversy about whether he engaged in the conduct for which his probation was violated”). That precedent compels the conclusion that the defendant’s claim is moot with respect to the finding that he violated his probation by assaulting Maiachi.

In light of the foregoing, we decline to review the defendant’s challenges to the two remaining findings of the court. “[T]o support a judgment of revocation of probation, [ojur law does not require the state to prove [453]*453that all conditions alleged were violated; it is sufficient to prove that one was violated.” (Internal quotation marks omitted.) State v. Wells, 112 Conn. App. 147, 156, 962 A.2d 810 (2009). The defendant’s November 30, 2011 guilty plea furnished an ample basis for the court, in the adjudicative phase of the proceeding, to find that he violated his probation. See State v. Benjamin, 299 Conn. 223, 231, 9 A.3d 338 (2010). Accordingly, it would serve no useful purpose to consider whether the court properly found that the defendant tested positive for marijuana and interfered with an officer, particularly when the court did not address those findings during the dispositional phase of the proceeding. See State v. Wells, supra, 158.

II

The defendant also claims that the court abused its discretion in sentencing him to a term of seven years incarceration. “The standard of review of the trial court’s decision at the sentencing phase of the revocation of probation hearing is whether the trial court exercised its discretion properly by reinstating the original sentence and ordering incarceration. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . .

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Cite This Page — Counsel Stack

Bluebook (online)
76 A.3d 744, 146 Conn. App. 448, 2013 WL 5530581, 2013 Conn. App. LEXIS 492, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-francis-connappct-2013.