State v. TD

944 A.2d 288, 286 Conn. 353, 2008 Conn. LEXIS 104
CourtSupreme Court of Connecticut
DecidedApril 8, 2008
Docket17616
StatusPublished
Cited by45 cases

This text of 944 A.2d 288 (State v. TD) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. TD, 944 A.2d 288, 286 Conn. 353, 2008 Conn. LEXIS 104 (Colo. 2008).

Opinion

944 A.2d 288 (2008)
286 Conn. 353

STATE of Connecticut
v.
T.D.[*]

No. 17616.

Supreme Court of Connecticut.

Argued September 19, 2007.
Decided April 8, 2008.

*290 Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Terence Mariani, senior assistant state's attorney, for the appellant (state).

Martha Hansen, special public defender, for the appellee (defendant).

ROGERS, C.J., and NORCOTT, KATZ, PALMER and SCHALLER, Js.

ROGERS, C.J.

The sole issue presented by this appeal is whether an appeal challenging a trial court's finding of a violation of probation pursuant to General Statutes § 53a-32, stemming from a probationer's commission of a new crime during the probationary period, is rendered moot by his conviction of such crime, following a jury trial, during the pendency of the appeal. The defendant, T.D., argued, and the Appellate Court agreed, that because his conviction had resulted from a jury trial and not from an admission of guilt, thus preserving his ability to challenge on appeal the sufficiency of the evidence supporting the conviction, this case is distinguishable from State v. Singleton, 274 Conn. 426, 876 A.2d 1 (2005). In Singleton, we held that a defendant's guilty plea resulting in conviction of a crime, the commission of which had formed the basis of an earlier finding of a violation of probation, effectively mooted his pending appeal challenging the probation violation finding. Id., at 439, 876 A.2d 1. The state has appealed, following our grant of certification,[1] from the judgment of the Appellate Court. We conclude that this case is distinguishable from Singleton, but our reasoning differs to some extent from that of the Appellate Court and, consequently, our agreement with that court's ultimate conclusion is qualified. Specifically, at the time the Appellate Court rendered its decision, the defendant was pursuing an appeal from his conviction for the underlying crime, and, therefore, the question of whether he had engaged in the conduct constituting that crime still presented a *291 live controversy. As such, his probation violation appeal, which also challenged a finding that he had engaged in that conduct, was not moot. Accordingly, we affirm the judgment of the Appellate Court.[2]

The following facts and procedural history are relevant. In 1998, the defendant entered pleas of nolo contendere to charges of sexual assault in the first degree in violation of General Statutes (Rev. to 1997) § 53a-70 (a)(2) and risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21(2). After accepting the defendant's pleas, the court sentenced him to a total effective term of twelve years incarceration, execution suspended after five years, with ten years of probation. The defendant was released from prison and began serving his probation in 2002. State v. [T.D.], 93 Conn.App. 88, 89-90, 888 A.2d 118 (2006).

On March 9, 2004, the state charged the defendant with violating his probation by, inter alia, committing the crime of failure to register as a sex offender in violation of General Statutes (Rev. to 2003) § 54-251 and General Statutes § 54-257. After a hearing, the trial court found that, because the defendant had failed to register as a sex offender, he had violated the condition of his probation that required him to not violate any criminal law.[3] The court concluded that the beneficial aspects of the defendant's probation no longer were being served and, therefore, revoked the probation and ordered that the defendant serve the unexecuted portion of his sentence. On June 18, 2004, the defendant appealed to the Appellate Court from the trial court's judgment, claiming there was insufficient evidentiary support for the court's finding that he had violated his probation.[4] Id., at 94, 888 A.2d 118.

On October 5, 2005, prior to oral argument at the Appellate Court in the violation of probation appeal, the defendant was found guilty, following a jury trial, of failure to register as a sex offender. At oral argument on October 27, 2005, the Appellate Court was notified of this development, and the state argued that the appeal was moot and should be dismissed. Id., at 90-91, 888 A.2d 118. On December 5, 2005, the trial court in the criminal matter rendered a judgment of conviction, and the defendant subsequently filed an application for waiver of fees, costs and expenses and for appointment of appellate counsel, which tolled the period in which he could file an appeal.[5] See Practice Book §§ 63-1(c)(1) and 63-7.

*292 In a decision released on January 10, 2006, the Appellate Court affirmed the judgment revoking the defendant's probation. State v. [T.D.], supra, 93 Conn.App. at 89, 888 A.2d 118. At the outset, that court disagreed with the state's argument that the defendant's appeal should be dismissed, concluding that the appeal remained viable despite the defendant's conviction of failure to register as a sex offender. The Appellate Court first noted our holding in Singleton that "[w]here, 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. [State v. Singleton, supra, 274 Conn.] at 439, 876 A.2d 1." (Internal quotation marks omitted.) State v. [T.D.], supra, at 91, 888 A.2d 118. It then drew a distinction, reasoning that "[a]fter the defendant in Singleton appealed from the judgment revoking his probation, he pleaded guilty to and was convicted of the criminal conduct that gave rise to the violation of his probation. . . . That defendant waived his right to file a direct appeal when he pleaded guilty, and, therefore, no longer could appeal from the revocation of his probation. In contrast, the defendant in the present case did not plead guilty to the criminal conduct that gave rise to the violation of his probation. He retained his right to appeal from his conviction on the charge of failure to register as a sex offender, and, therefore, also retained his right to appeal from the revocation of his probation." (Citation omitted.) Id. The Appellate Court thus rejected the state's argument that the defendant's appeal was moot. Id., at 92, 888 A.2d 118. Its decision, however, did not indicate whether the defendant actually had appealed from his conviction of failure to register as a sex offender. The Appellate Court decided the remaining issues of the appeal on their merits and ultimately upheld the judgment revoking the defendant's probation.

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Bluebook (online)
944 A.2d 288, 286 Conn. 353, 2008 Conn. LEXIS 104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-td-conn-2008.