State v. Restbergs

873 A.2d 258, 89 Conn. App. 353, 2005 Conn. App. LEXIS 213
CourtConnecticut Appellate Court
DecidedMay 31, 2005
DocketAC 25403
StatusPublished
Cited by1 cases

This text of 873 A.2d 258 (State v. Restbergs) 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. Restbergs, 873 A.2d 258, 89 Conn. App. 353, 2005 Conn. App. LEXIS 213 (Colo. Ct. App. 2005).

Opinion

Opinion

SCHALLER, J.

The defendant, John Restbergs, appeals from the judgments of the trial court finding him in violation of probation pursuant to General Statutes § 53a-32 following a probation revocation proceeding based on his conviction of violation of a protective order, breach of the peace and failure to appear in the second degree and on his conviction of assault in the third degree. On appeal, the defendant claims that (1) he was not properly notified of the alleged violations of probation in violation of his due process rights under [355]*355both the federal and state constitutions, (2) the court improperly determined that he had violated a modified condition of his probation, (3) his trial counsel was ineffective for allegedly failing to object to certain statements and findings, to conduct adequate pretrial investigation and to implement pretrial procedures, and (4) the court abused its discretion in determining that the defendant had violated the conditions of his probation. We affirm the judgments of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. On April 19, 2001, the defendant pleaded guilty to violation of a protective order, breach of the peace and failure to appear in the second degree. The defendant was sentenced to two years of incarceration, execution suspended, and three years of probation. Shortly thereafter, in a separate case, the defendant pleaded guilty to assault in the third degree. On the assault charge, the court sentenced the defendant to one year incarceration, execution suspended after time served, and three years probation.

The defendant began his probation on April 19, 2001. On that day, the defendant met with his probation officer and reviewed the conditions of probation. On April 24, 2001, he met with another probation officer to review again the conditions of probation. In addition to complying with the standard conditions of probation, the defendant was required to take all prescribed medications, to report to his probation officer and to allow the probation officer to visit the defendant at his residence. In addition, the defendant was barred from initiating contact with the victim “until prior medication [was] compliant.”

At the probation revocation hearing, evidence was offered to prove that the defendant had missed at least five appointments with his probation officer between [356]*356May and December, 2001. In January, 2002, the defendant was warned that if he missed another appointment with his probation officer, the office of adult probation would issue a violation to him. On March 14, 2002, the defendant’s case was transferred to probation officer Patrick Callahan. On the same day, the defendant failed to report to probation as scheduled. The record indicates that the defendant did not attempt to report to his probation officer until April 4, 2002.

Shortly thereafter, the defendant failed to appear at his May 30, 2002 appointment with Callahan. The next day, Callahan attempted to visit the defendant at his home. Because the defendant was not at home, Callahan left a card directing the defendant to contact him. The defendant did not respond. Callahan then sent the defendant a letter directing the defendant to meet with him on June 13, 2002. The defendant reported to the probation office at the scheduled time.

On July 25, 2002, the defendant again failed to report to his probation officer. Callahan visited the defendant’s home again. When he arrived at the defendant’s home, the defendant became agitated. After drawing his baton for safety when the defendant approached him, Callahan left the defendant’s residence. The next day, Callahan accompanied a New Milford police officer to the home of the victim. The victim played for them a harassing message left by the defendant on the victim’s answering machine. .

On August 2, 2002, Callahan telephoned the Danbury Behavioral Health Center (health center) where the defendant was a patient and learned that the defendant had missed his July 24,2002 appointment. A representative from the health center explained that the defendant would not have obtained a supply of his required medications because he had missed his appointment.

[357]*357Shortly thereafter, Callahan prepared an arrest warrant on the basis of the defendant’s violation of his conditions of probation, including his failures to report to probation, his conduct during the July 25, 2002 home visit, the harassing message to the victim and his failure to take his medications. Additional facts will be set forth as necessary.

I

The defendant first claims that he was not properly notified of the alleged violations of probation in violation of his due process rights under both the federal and state constitutions. Specifically, the defendant contends that the notice of probation violations contained several dates but did not specify which dates were the bases of the violations. The defendant claims that he could not have anticipated that the earlier dates on which he failed to report, rather than more recent dates, would be the subject of the probation violation hearing. Moreover, the defendant claims that the court, sua sponte, determined that he was in violation of his probation on the basis of conduct that was not alleged in the notice of probation violations and, therefore, he could not prepare properly for the probation violation proceedings.

The defendant concedes that his claim was not properly preserved for appellate review and seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).1 We agree with the defendant that the record [358]*358is adequate for review and that the claim is of constitutional magnitude; therefore, we must determine whether the alleged constitutional violation clearly exists.

“Probation revocation proceedings fall within the protections guaranteed by the due process clause of the fourteenth amendment to the federal constitution. . . . Probation itself is a conditional liberty and a privilege that, once granted, is a constitutionally protected interest. . . . The revocation proceeding must comport with the basic requirements of due process because termination of that privilege results in a loss of liberty. . . . [T]he minimum due process requirements for revocation of [probation] include written notice of the claimed [probation] violation, disclosure to the [probationer] of the evidence against him, the opportunity to be heard in person and to present witnesses and documentary evidence, the right to confront and cross-examine adverse witnesses in most instances, a neutral hearing body, and a written statement as to the evidence for and reasons for [probation] violation.” (Citations omitted; internal quotation marks omitted.) State v. Gauthier, 73 Com. App. 781, 789, 809 A.2d 1132 (2002), cert. denied, 262 Com. 937, 815 A.2d 137 (2003). “At [a probation violation] hearing the defendant shall be informed of the manner in which such defendant is alleged to have violated the conditions of such defendant’s probation or conditional discharge . . . .” (Internal quotation marks omitted.) State v. Maye, 70 Com. App. 828, 838, 799 A.2d 1136 (2002).

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Related

State v. Restbergs
882 A.2d 679 (Supreme Court of Connecticut, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
873 A.2d 258, 89 Conn. App. 353, 2005 Conn. App. LEXIS 213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-restbergs-connappct-2005.