State v. Imperiale ( 2021 )

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STATE OF CONNECTICUT v. JOSEPH
LOUIS IMPERIALE
(SC 20391)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.*
Syllabus
The defendant, who had been on probation after his conviction of possession
of child pornography in the second degree, appealed from the trial
court’s judgment revoking his probation. In connection with the defen-
dant’s child pornography conviction, the sentencing court had imposed a
term of imprisonment followed by a period of probation with conditions,
including sex offender treatment. After being released from prison, the
defendant entered an inpatient sex offender treatment facility for treat-
ment. Before completing his course of treatment there, however, he
was discharged on the basis of his failure to adhere to various conditions
established by the facility for continued placement there. The defendant
subsequently was charged with violating his probation as a result of his
failure to complete sex offender treatment. The defendant filed a motion
to dismiss the violation of probation charge, contending, inter alia, that
the probationary condition requiring him to successfully complete the
sex offender treatment program violated his due process rights. The
trial court denied the motion and found the defendant to be in violation
of his probation. On appeal from the trial court’s judgment revoking
the defendant’s probation, held that the trial court properly denied the
defendant’s motion to dismiss the violation of probation charge: the
defendant’s claim that his placement at the treatment facility violated his
right to due process on the ground that it was the functional equivalent
of incarceration was unavailing, as the restrictions imposed on persons
receiving treatment at the facility were appreciably less onerous than
those placed on prison inmates, and, thus, residency at the facility
was materially different from confinement in a prison; moreover, the
defendant’s placement at the facility furthered the rehabilitative and
public safety purposes of probation, and, because the defendant’s proba-
tion officer reasonably concluded that the defendant’s placement at the
facility was the best, most appropriate option under the circumstances,
that probationary condition did not offend principles of due process;
furthermore, there was no merit to the defendant’s claim that subjecting
him to the highly restrictive conditions at the facility violated his right
to equal protection on the ground that he was placed there due to his
status as a homeless person upon his release from prison, as that claim
foundered on the trial court’s factual finding that he was not referred
to the facility because he was homeless, and the defendant’s claim that
requiring him to attend the sex offender treatment program at the facility
as a condition of probation violated his eighth amendment right to be
free from cruel and unusual punishment also failed when, as in the
present case, the condition of probation was reasonably necessary to
accomplish the legitimate goals of probation.
Argued January 23, 2020—officially released January 7, 2021**
Procedural History
Information charging the defendant with violation of
probation, brought to the Superior Court in the judicial
district of Litchfield, where the court, Danaher, J.,
denied the defendant’s motion to dismiss and rendered
judgment revoking the defendant’s probation, from
which the defendant appealed. Affirmed.
James B. Streeto, senior assistant public defender,
for the appellant (defendant).
Matthew A. Weiner, assistant state’s attorney, with
whom, on the brief, were David S. Shepack, former
state’s attorney, David R. Shannon, supervisory assis-
tant state’s attorney, and Gregory L. Borrelli, assistant
state’s attorney, for the appellee (state).
Opinion
PALMER, J. The defendant, Joseph Louis Imperiale,
appeals from the judgment of the trial court, Danaher,
J., revoking his probation and sentencing him to an
effective term of imprisonment of two years. He claims
that the trial court improperly denied his motion to
dismiss the violation of probation charge because the
condition of probation on which the charge was predi-
cated, namely, that he participate in an inpatient sex
offender treatment program, violated his fourteenth
amendment rights to due process and equal protection,
as well as the constitutional prohibition against the
imposition of cruel and unusual punishment. We dis-
agree and, accordingly, affirm the judgment of the
trial court.
The following undisputed facts and procedural his-
tory are relevant to our resolution of this appeal. On
January 4, 2013, the defendant pleaded guilty to illegal
possession of child pornography in the second degree,
in violation of General Statutes § 53a-196e.1 At the time
of the guilty plea, the assistant state’s attorney informed
the trial court, Ginocchio, J., that, following a police
investigation into the trafficking of child pornography,
the defendant had confessed to the possession of
numerous images on his personal computer depicting
young children involved in various sex acts. Before
accepting the defendant’s plea, the court explained to
the defendant that he was waiving certain constitutional
rights by pleading guilty, and the defendant stated that
he understood he was doing so. The court also
explained to the defendant that, under the plea agree-
ment, he would be sentenced to a term of imprisonment
of ten years, suspended after four years, followed by
ten years of probation, the conditions of which would
include sex offender registration and ‘‘most likely . . .
sex offender evaluation and treatment and many other
conditions that may involve contact with children and
anything [that the Office of Adult Probation] believe[s]
is reasonably related to this charge.’’ The court further
advised the defendant that if, following the completion
of a presentence investigative report, the court deter-
mined that the sentence contemplated under the plea
agreement was appropriate, the defendant would not be
allowed to withdraw his guilty plea without the court’s
permission. When asked whether he understood, the
defendant responded that he did. The defendant also
indicated that he understood that he would be permitted
to withdraw his plea if the court, after reviewing the
presentence investigation report, determined that the
sentence agreed on by the parties was not appropriate.
Following this colloquy, the court accepted the defen-
dant’s guilty plea after finding that he had made it know-
ingly and voluntarily and with the assistance of
competent counsel.
The trial court subsequently determined that the sen-
tence negotiated by the parties was appropriate, and,
on March 15, 2013, the court sentenced the defendant
in accordance with the terms of the plea agreement.
At the time of sentencing, the court also recounted the
following standard and special conditions of probation,
as expressly set forth under the plea agreement: ‘‘[S]ex
offender registration, sex offender evaluation and treat-
ment through [a Connecticut Association for the Treat-
ment of Sexual Offenders] provider,’’ and compliance
‘‘with all recommended sex offender conditions of pro-
bation as deemed appropriate by the supervising [pro-
bation] officer.’’ Moreover, in imposing sentence, the
court emphasized the seriousness of the crime of pos-
session of child pornography insofar as it fuels and
perpetuates the ‘‘heinous’’ and ‘‘horrendous’’ sex trade
that so grievously exploits and harms young children.
In August, 2015, after completing a short term sex
offender treatment program for inmates, the defendant
was released on parole to a transitional housing setting
in Torrington. His parole was revoked almost immedi-
ately, however, after it was discovered that, just two
weeks after his release, he was using a public computer
to access child pornography. He was returned to prison
on September 1, 2015.
On April 5, 2017, the defendant, who was still incar-
cerated, first met with his probation officer, Nicole
Grella, via video conference. During this intake meeting,
the defendant and Grella reviewed his offense, sentence
and the conditions of his probation. They also discussed
additional details about the defendant’s life, including
housing, his support network, and his concerns and
anticipated needs for his impending probation. At that
time, the defendant explained to Grella that he believed
that he had reoffended so soon after being paroled in
2015 because of the abrupt transition from prison to
community based, independent living without sufficient
structure and support. The defendant further told Grella
that he needed additional supervision and counseling
to overcome his acknowledged addiction to child por-
nography and to successfully complete his period of
probation.
Prior to this video conference, Grella reviewed the
defendant’s presentence investigation report and
records. As a result of this research, Grella learned,
among other things, that the defendant had committed
a violent sex offense as a juvenile and that he had failed
to successfully complete an inpatient sex offender treat-
ment program at that time. Moreover, while participat-
ing in that program, the defendant exhibited
‘‘pervasive[ly] negative behavior’’ and admitted that he
had devised a plan to be alone with one of the female
staff members and to molest her. In addition, the defen-
dant had been deemed a ‘‘high risk to sexually reoffend’’
on the basis of a sex offender evaluation conducted
after he was sentenced to serve time in prison in 2013.
In late March, 2017, Grella spoke with the defendant’s
mother to discuss housing options for the defendant
upon his release from prison. The defendant’s mother
indicated to Grella that she was in the process of moving
out of state but would be able to pay for her son’s
housing while he remained on probation. Grella spoke
with the defendant’s mother again in early June, 2017,
at which time she told Grella that she had secured a bed
for the defendant at the same residence in Torrington
where he had resided briefly following his short-lived
release on parole.
Grella thereafter told the defendant that she had
decided to refer him to the January Center (center), an
inpatient sex offender treatment facility in Montville,
for placement there upon his discharge from prison.
Grella explained that the center offers the most inten-
sive and restrictive sex offender treatment program
available through the Judicial Branch’s Court Support
Services Division and is operated by an entity known as
The Connection, Inc., which runs numerous treatment
programs throughout the state. The typical length of a
stay at the center, where residents live in individual
rooms and participate in daily therapy, is three to six
months, depending on the resident’s progress. The facil-
ity is located on the grounds of the Corrigan Correc-
tional Institution and is surrounded by a high, exterior
fence topped with razor wire. Although residents of the
center may not leave the facility without permission
and a staff escort, the building is unlocked, and staff
members are instructed not to restrain or touch a proba-
tioner seeking to leave without proper authorization.
If a resident who is on probation does leave the center
without such authorization, however, he or she may be
charged with a violation of probation.
The defendant was initially resistant to being placed
at the center, in large measure because he believed that
his referral to such a restrictive treatment facility was
unduly harsh and punitive. He also told Grella that his
placement at the center was not warranted because his
mother had secured housing for him and he had already
lined up a possible employment opportunity. Over the
course of several phone calls with the defendant, how-
ever, Grella explained in detail why she believed that
placement at the center was the most appropriate dis-
charge option for him. On the basis of her expertise, it
was Grella’s view that the conditions imposed by the
center, including daily therapy sessions, would afford
the defendant the best structure and opportunity for
his successful reentry into the community. Grella also
discussed other benefits of the defendant’s placement
at the center, including its minimal cost to him and his
mother, and the support and assistance it would afford
him when he returned to the community upon his depar-
ture from the facility, a consideration that the defendant
himself had identified as critical to a successful transi-
tion. Over time, the defendant grew more agreeable to
his placement at the center, and he assured Grella that
he would abide by the center’s rules. He also told Grella
that he understood that, if he refused to comply with
those rules or any other aspect of his discharge plan,
he would be in violation of his probation.
On June 28, 2017, the defendant signed the conditions
of his probation, thereby acknowledging his obligation
to abide by them. Among the court-ordered special pro-
bationary conditions, probation officials were author-
ized to require the defendant to participate in a
residential sex offender treatment program, and the
defendant was required to complete sex offender evalu-
ation and treatment through an approved provider and
to comply with all other conditions deemed appropriate
by his probation officer in view of his offense. More
specifically, the defendant expressly acknowledged the
requirement imposed by his probation officer that he
reside and receive treatment at the ‘‘[c]enter, a secure
[twenty-four] hour residential treatment facility/pro-
gram,’’ and he further agreed to ‘‘follow the . . . [c]en-
ter’s restrictions, policies and procedures until
satisfactory completion of the program.’’ Finally, the
defendant acknowledged that leaving the center with-
out permission would constitute a violation of his pro-
bation.
Upon his release from prison on July 14, 2017, the
defendant commenced his placement at the center. He
thereafter signed sex offender treatment and account-
ability agreements pursuant to which he was required
to abide by the center’s policies and rules, including
the requirements that he ‘‘not engage in any violence,
threats or intimidation’’ or ‘‘in any behavior that
adversely [a]ffects the treatment or confidentiality of
any other client,’’ and that he ‘‘abide by all of the rules
of [t]he . . . [c]enter in order to [coexist] . . . with
other clients, staff members and volunteers.’’ He also
agreed to ‘‘be respectful to all staff and clients [of the
center],’’ including ‘‘allowing [them] personal space, not
getting involved in other client’s concerns or staff mem-
ber’s undertakings, not swearing, being aware of how
[his] behavior or words can make people feel uncom-
fortable, analyzing situations [that] may trigger anger
before reacting, and not causing . . . disturbances
within the . . . [c]enter community.’’ In addition, the
defendant acknowledged that any violation of these
rules would result in his being issued a ticket and in
notification to his probation officer. Finally, the defen-
dant was informed that repeated violations could lead
to his immediate dismissal from the center.
Although the defendant completed the initial phase
of his treatment program, on October 30, 2017, before
completing that program, he was discharged from the
center because of his failure to adhere to various condi-
tions established by the center for continued placement
there. According to a discharge summary prepared by
the center, the defendant’s treatment was terminated
as a result of his ‘‘[noncompliance] with program rules
and expectations and disorderly conduct’’ after receiv-
ing multiple disciplinary tickets for engaging in a pattern
of wilful disobedience and disrespect that adversely
affected the therapeutic environment at the center,
repeatedly becoming confrontational toward staff, ver-
bally threatening to harm staff, propping open the door
to his room when it was supposed to be closed and
locked,2 and not completing his assigned chores. On
one of those occasions, the center staff called the state
police to respond to the defendant’s behavior. Shortly
thereafter, the staff concluded that they had exhausted
all efforts to work productively with the defendant and
that he had become ‘‘a safety concern to himself and
the community.’’
The defendant subsequently was charged with vio-
lating his probation for failing to complete sex offender
treatment at the center. The defendant moved to dis-
miss the charge, claiming that the probationary condi-
tion requiring him to successfully complete the center
treatment program violated his rights under the due
process clause of the fourteenth amendment to the
United States constitution.3 In support of this claim, the
defendant asserted that the conditions at the center
were so severe and restrictive as to constitute the func-
tional equivalent of incarceration and, therefore, were
impermissibly onerous as a matter of law. The defen-
dant further claimed that, even if his placement at the
center was not tantamount to incarceration, the restric-
tions imposed on him there nevertheless violated his
right to due process because, in light of his background
and offense history, those restrictions were not justified
as reasonably related to his rehabilitation. Finally, the
defendant asserted a third due process violation,
namely, that he had been denied adequate notice of his
placement at the center when the trial court sentenced
him and placed him on probation.
In addition, the defendant maintained that his referral
to the center violated his right to equal protection under
the federal constitution4 because the referral was predi-
cated on his status as a homeless person. Finally, the
defendant claimed that his placement at the center vio-
lated the constitutional prohibition against cruel and
unusual punishment5 because he was placed at the cen-
ter, and thereby subjected to its punitive conditions,
on account of his homelessness.6
Following an evidentiary hearing, the trial court,
Danaher, J.,7 issued a thorough memorandum of deci-
sion in which the court credited the state’s witnesses,
rejected each of the defendant’s claims and, accord-
ingly, denied his motion to dismiss. With respect to the
defendant’s contention that his placement at the center
constituted a due process violation because it was tanta-
mount to incarceration, the trial court stated: ‘‘[T]he
defendant was not incarcerated at the [c]enter. The
evidence presented at the hearing . . . makes clear
that a probationer leaving the . . . [c]enter would not
be charged with escape. The . . . [c]enter is not staffed
by correctional officers. It does not contain cells; it has
individual rooms. Residents at the . . . [c]enter leave
for religious services and medical appointments.
Although the . . . [c]enter is on the grounds of a cor-
rectional facility and . . . is surrounded by a fence
topped with barbed wire, if a probationer referred to
the . . . [c]enter elected to leave without permission,
that person could walk through the gate or have the
gate opened for them. The staff members at the . . .
[c]enter are specifically instructed not to touch or try
to restrain a probationer seeking to leave the [c]enter
without permission. It is true that, in the foregoing
event, the probationer would be charged with violation
of probation, but the latter fact does not compel the
conclusion that referral to the . . . [c]enter is ‘essen-
tially’ incarceration.’’
In rejecting the defendant’s claim that his placement
at the center violated his right to due process because
his referral there was unreasonable, the trial court
explained: ‘‘[T]he Office of Adult Probation engaged in
a careful process that led to the conclusion that referral
to the . . . [c]enter was appropriate for this defendant.
Indeed, the defendant specifically requested additional
help in effecting a transition from a correctional institu-
tion due to his inability to refrain from obtaining child
pornography. He was, after an analysis, designated as
a high risk to reoffend, and the . . . [c]enter was a
placement designed to respond to such individuals. It
offered group treatment and daily individual treatment.
It offered help to those seeking employment and assis-
tance obtaining housing and other services. The defen-
dant’s placement at the . . . [c]enter was not in any
way arbitrary; it was a carefully selected, eminently
reasonable placement for a sex offender such as this
defendant.’’ The court further explained: ‘‘[T]he evi-
dence adduced at the hearing fully supports the court’s
finding that the defendant’s placement at [the] [c]enter
was based on empirical evidence, including an under-
standing of the defendant’s offenses and offense his-
tory; his rapid reoffense after his initial release in 2015;
his own request for additional assistance in effecting a
transition; the nature of the . . . [c]enter; and the pro-
grams available at [the] [c]enter for high risk offenders.
The defendant’s placement at the . . . [c]enter was
hardly unreasonable; on the contrary, it was completely
appropriate. That placement comports with all require-
ments that must apply to a condition of probation.’’
Finally, the trial court rejected the defendant’s equal
protection and cruel and unusual punishment claims,
both of which were predicated on his contention that
he was referred to the center on the basis of his home-
lessness, because the testimony adduced at the hearing
on the motion to dismiss established that he had not
been placed there for that reason. Rather, the court
found that, ‘‘although homelessness is a factor in decid-
ing whether to place a [probationer] in the . . . [c]en-
ter, such placement is based primarily on whether the
probationer is a high risk sex offender, not on whether
the [probationer] is homeless,’’ and, further, in the pres-
ent case, the defendant ‘‘was not placed at the . . .
[c]enter because he was homeless; he was placed at
the . . . [c]enter because he is a high risk offender.’’
Thereafter, the trial court found that the defendant
had violated his probation by virtue of his improper
actions and conduct at the center, and his failure to
complete the treatment program there due to that mis-
conduct. The court revoked the defendant’s probation
and sentenced him to a term of imprisonment of six
years, execution suspended after two years, followed
by four years of probation. This appeal followed.8
In this court, the defendant renews the constitutional
claims that he raised in the trial court, which we address
in turn. Before doing so, however, we briefly summarize
the principles relating to probation that guide our analy-
sis of the defendant’s claims. ‘‘[P]robation is, first and
foremost, a penal alternative to incarceration . . . .
[Its] purpose . . . is to provide a period of grace in
order to aid the rehabilitation of a penitent offender;
to take advantage of an opportunity for reformation
which actual service of the suspended sentence might
make less probable. . . . [P]robationers . . . do not
enjoy the absolute liberty to which every citizen is enti-
tled, but only . . . conditional liberty properly depen-
dent on observance of special [probation] restrictions.
. . . These restrictions are meant to [ensure] that the
probation serves as a period of genuine rehabilitation
and that the community is not harmed by the probation-
er’s being at large.’’ (Internal quotation marks omitted.)
State v. Faraday, 268 Conn. 174, 180, 842 A.2d 567(2004).
Nevertheless, because probation is itself ‘‘a condi-
tional liberty,’’ once granted, it is ‘‘a constitutionally
protected interest’’; (internal quotation marks omitted)
State v. Orr, 199 Conn. App. 427, 434–35, 237 A.3d 15(2020); and, therefore, ‘‘[a]ny restriction . . . [on] a
probationer’s otherwise inviolable constitutional rights
can be justified only to the extent actually required by
legitimate demands of the probation process in any
given case.’’ State v. Smith, 207 Conn. 152, 166, 540 A.2d
679 (1988). In other words, principles of due process
require that probationary conditions must be reason-
ably related to the purposes of probation, with appro-
priate regard for the background and circumstances of
the individual probationer, a requirement that is also
mandated statutorily under General Statutes § 53a-30.9
In view of the nature and goals of probation, however,
and because any number of probationary conditions or
combinations thereof are likely to be suitable in any
particular case, the trial court ‘‘has an exceptional
degree of flexibility in determining [the] terms [of pro-
bation]’’; (internal quotation marks omitted) State v.
Silas S., 301 Conn. 684, 692, 22 A.3d 622 (2011); and
we therefore review those terms for abuse of discretion
only. See id. Thus, ‘‘[i]f it appears that the trial court
reasonably was satisfied that the terms of probation
had a beneficial purpose consistent with the defendant’s
reformation and rehabilitation, then the order must
stand. . . . In reviewing the issue of discretion, we do
so according it every reasonable presumption in favor
of the trial court’s ruling.’’ (Internal quotation marks
omitted.) Id.‘‘The success of probation as a correctional tool is
in large part tied to the flexibility within which it is
permitted to operate. . . . In this regard, modifications
of probation routinely are left to the [O]ffice of [A]dult
[P]robation. When the court imposes probation, a defen-
dant thereby accepts the possibility that the terms of
probation may be modified or enlarged in the future
pursuant to . . . § 53a-30. . . . To this end, probation
officers shall use all suitable methods to aid and encour-
age [a probationer] and to bring about improvement in
his [or her] conduct and condition.’’ (Citations omitted;
footnote omitted; internal quotation marks omitted.)
State v. Faraday, supra, 268 Conn. 180–82. Accordingly,
it is well established that, depending on the circum-
stances of a particular case, the Office of Adult Proba-
tion properly may impose conditions of probation that
place significant restrictions on a probationer’s liberty
during the term of his or her probation, if such restric-
tions are reasonably necessary. See, e.g., State v. Reid,
204 Conn. 52, 55, 526 A.2d 528 (1987). Of course, a
defendant may challenge the probationary condition he
or she is alleged to have violated on the ground that it
was unreasonable and, therefore, unlawful. See State
v. Smith, 255 Conn. 830, 840, 769 A.2d 698 (2001); see
also Practice Book § 41-8 (8) (defendant may file motion
to dismiss charge on ground that ‘‘the law defining
the offense charged is unconstitutional or otherwise
invalid’’). Indeed, ‘‘[e]ven prior to the violation of proba-
tion hearing, if an individual on probation believes that
the [O]ffice of [A]dult [P]robation [has] imposed an
unreasonable condition, he may request a hearing pur-
suant to . . . § 53a-30 (c).’’ State v. Smith, supra, 255
Conn. 840. If a condition of probation is determined to
be invalid, a revocation of probation predicated on a
violation of that condition also is unlawful. See, e.g.,
State v. Cooley, 3 Conn. App. 410, 415, 488 A.2d 1283(‘‘[i]f . . . the condition [of probation] serves no reha-
bilitative purpose and there is undisputed evidence that
the condition was unnecessary at its inception, or was
without any beneficial purpose as of the date of the
hearing, reasonableness of a revocation of the proba-
tion is lacking’’), cert. denied, 196 Conn. 805, 492 A.2d
1241 (1985).
Finally, ‘‘in determining whether a condition of proba-
tion impinges unduly [on] a constitutional right [in any
particular case], a reviewing court should evaluate the
condition’’ to ensure that it is ‘‘reasonably related to
the purposes of [probation].’’ (Internal quotation marks
omitted.) State v. Smith, supra, 207 Conn. 170. ‘‘Consid-
eration of three factors is required to determine whether
[such] a reasonable relationship exists: (1) the purposes
sought to be served by [the] probation[ary] [condition];
(2) the extent to which constitutional rights enjoyed by
law-abiding citizens should be accorded to probation-
ers; and (3) the legitimate needs of law enforcement.’’
(Internal quotation marks omitted.) Id. Upon applica-
tion of these principles, we conclude that the trial court
properly rejected the defendant’s claims.
We first address the defendant’s contention that, con-
trary to the determination of the trial court, his place-
ment at the center violated his right to due process
because it was the functional equivalent of incarcera-
tion.10 In support of this contention, the defendant
focuses on the highly restrictive nature of the conditions
at the center, in particular, the facts that center resi-
dents may leave the facility only with permission and
an escort, that relatively strict security protocols are
followed and enforced by center staff, and that the
facility is situated on the grounds of a correctional
institution with a fence surrounding it.11 We disagree
with the defendant’s claim.
It is axiomatic that ‘‘[t]he . . . object of imprison-
ment is confinement. Many of the liberties and privi-
leges enjoyed by other citizens must be surrendered by
the prisoner. An inmate does not retain rights inconsis-
tent with proper incarceration.’’ Overton v. Bazzetta,
539 U.S. 126, 131, 123 S. Ct. 2162, 156 L. Ed. 2d 162(2003). Probationers, on the other hand, are afforded
a conditional liberty that is dependent on their adher-
ence to certain specified limitations on the freedoms
they otherwise would enjoy, without restriction, if they
were not subject to a criminal sanction. See, e.g., Griffin
v. Wisconsin, 483 U.S. 868, 873–75, 107 S. Ct. 3164, 97
L. Ed. 2d 709 (1987). Generally speaking, the infringe-
ment on liberty caused by an order of probation is
considerably less intrusive than the extreme restric-
tions attendant to incarceration. See, e.g., United States
v. Nachtigal, 507 U.S. 1, 5, 113 S. Ct. 1072, 122 L. Ed.
2d 374 (1993). Nevertheless, as we previously noted,
conditions of probation that are reasonably necessary
and appropriate for the rehabilitation of the probationer
and the safety of the community are lawful and proper,
even though they place significant restrictions on the
probationer’s liberty during the term of his or her proba-
tion. See, e.g., Blanton v. North Las Vegas, 489 U.S.
538, 542, 109 S. Ct. 1289, 103 L. Ed. 2d 550 (1989) (‘‘pro-
bation . . . may engender a significant infringement of
personal freedom’’ (internal quotation marks omitted)).
Thus, depending on the circumstances of a particular
case, probation may ‘‘involve serious restraints on a
probationer’s [lifestyle], associations, movements and
activities.’’ State v. Reid, supra, 204 Conn. 55. ‘‘Indeed,
conditions [of probation] may appear to the defendant
[to be] more onerous than the sentence of confinement
[that] might be imposed.’’ (Internal quotation marks
omitted.) Id., 55 n.2.
In the present case, the trial court’s factual findings,
which are unchallenged, demonstrate that, although the
restrictions imposed on persons receiving treatment
at the center are by no means insignificant, they are
appreciably less onerous than those placed on prison
inmates, and, accordingly, those findings support the
court’s conclusion that residency at the center is materi-
ally different from confinement in a prison. As we noted
previously, the center contains individual rooms rather
than cells, residents are not locked in their rooms, and,
in further contrast to prison, the center itself is not
locked. Indeed, residents may leave the facility with
permission and an escort, and, even if a resident seeks
to leave the facility without permission, center staff are
directed not to restrain the individual as he or she is
leaving, and he or she will not be charged with the
crime of escape. To be sure, the center’s treatment
program is both restrictive and structured. But resi-
dents there retain a number of important rights and
privileges that are indisputably unavailable to incarcer-
ated individuals. We therefore agree with the trial court
that the defendant’s placement at the center for a period
of months is not tantamount to a term of imprison-
ment.12
In this regard, we are aware of only one occasion in
which this court has held that a person who was not
imprisoned in a correctional facility nevertheless was
confined under circumstances tantamount to incarcera-
tion. In Connelly v. Commissioner of Correction, 258
Conn. 394, 780 A.2d 903 (2001), the petitioner, William
A. Connelly, was acquitted of kidnapping and assault
by reason of lack of capacity due to mental disease or
defect (insanity) and committed to the custody of the
Commissioner of Mental Health for a period of ten
years, subject to periodic review by the Psychiatric
Security Review Board. Id., 399. For the duration of his
commitment, Connelly was confined at Whiting Foren-
sic Institute (Whiting) in Middletown, a maximum secu-
rity facility for the treatment of violent offenders. Id.,
405–406. Several years after his commitment and while
still a patient at Whiting, Connelly filed a petition for
a writ of habeas corpus, claiming that he was entitled
to a new trial because the record did not affirmatively
establish that he had been advised of his right to a jury
trial. Id., 400. The habeas court agreed with Connelly
and awarded him a new trial. Id. After a trial at which
Connelly did not raise an insanity defense, a jury found
Connelly guilty of the kidnapping and assault charges,
and he was sentenced to a total effective prison term
of forty years. Id.
Thereafter, Connelly filed another habeas petition
seeking credit toward his forty year sentence for the
period of time that he had been confined at Whiting
pursuant to the commitment order following his insan-
ity acquittal. Id., 401. The habeas court again agreed
with Connelly’s claim and ordered the Commissioner
of Correction to grant Connelly credit toward his sen-
tence for the period of his confinement at Whiting. Id.,
402. We affirmed the judgment of the habeas court,
explaining that, ‘‘[a]lthough the purpose of an order of
commitment issued as a result of an insanity acquittal
is significantly different from that of a prison sentence
imposed as a result of a criminal conviction . . . the
effect of such a commitment on the acquittee is no less
a deprivation of liberty than that of a prison sentence.
Indeed, the United States Supreme Court has aptly char-
acterized the involuntary confinement for treatment of
mental illness as a massive curtailment of liberty. . . .
In fact, [t]he United States Supreme Court has recog-
nized involuntary commitment to a mental institution
. . . as involving more than a loss of freedom from
confinement . . . due to its stigmatizing conse-
quences, and the potential exposure to invasive, com-
pulsory medical and psychiatric treatment.’’ (Citations
omitted; emphasis in original; internal quotation marks
omitted.) Id., 405. We further explained that such a
‘‘loss of liberty is all the more profound when the institu-
tion to which the patient has been committed is a maxi-
mum security facility such as Whiting.’’ Id., 405–406.
Finally, we observed that a sentenced prisoner who is
transferred from a correctional institution to Whiting
for treatment is entitled to full credit toward his sen-
tence for the time spent at Whiting. Id., 406.
The present case is readily distinguishable from Con-
nelly because, as we have explained, placement at the
center is not akin to imprisonment, let alone is it the
equivalent of confinement in a maximum security facil-
ity. Thus, our reasoning in Connelly and our resolution
of that case simply are inapplicable to the present case,
which presents an entirely different set of relevant cir-
cumstances. Moreover, as the trial court observed, the
fact that a probationer placed at the center may be
charged with violating probation for leaving the center
without permission does not alter the conclusion that
placement at the center is not functionally the same as
incarceration, as a probationer is always subject to
being charged with a probation violation whenever he
or she fails to comply with a probationary condition.
See, e.g., State v. Reid, supra, 204 Conn. 56–57.
The defendant also asserts that his placement at the
center was not reasonably related to the purposes of
probation because the factors that Grella considered in
determining the sex offender treatment program most
appropriate for the defendant militated against a place-
ment as restrictive as the center. To support his claim
that Grella reasonably could not have concluded that
his placement at the most restrictive treatment sex
offender treatment facility available was warranted, the
defendant cites his positive work and disciplinary his-
tory in prison, his completion of a short-term sex
offender treatment program while incarcerated, and the
fact that his mother had secured housing for him upon
his release from prison. We are not persuaded.
As we have explained, the Office of Adult Probation
has wide latitude to impose conditions on probationers
that serve ‘‘to foster the offender’s reformation and to
preserve the public’s safety . . . .’’ State v. Smith,
supra, 207 Conn. 168. Of course, this includes the
authority to require a probationer to undergo sex
offender treatment when such treatment is reasonably
necessary; see, e.g., State v. Smith, supra, 255 Conn.
844 (sex offender treatment was ‘‘a key component of
the [defendant’s] rehabilitative process because it was
directly connected to one of the underlying crimes to
which the defendant had pleaded guilty’’); see also State
v. Thorp, 57 Conn. App. 112, 117, 747 A.2d 537 (under
§ 53a-30, sex offender treatment may be imposed as
condition of probation, even when it was not explicitly
included in court-ordered terms of probation), cert.
denied, 253 Conn. 913, 754 A.2d 162 (2000); as well
as to require that a probationer adhere to stringent
residential conditions and rules. See, e.g., State v. Agli,
122 Conn. App. 590, 596, 1 A.3d 133 (probation officer
properly required probationer convicted of sex offense
to adhere to strict curfew at shelter as condition of
probation), cert. denied, 298 Conn. 920, 4 A.3d 1229(2010).
We agree with the trial court that the defendant’s
placement at the center furthered the rehabilitative and
public safety purposes of probation. Before deciding
where to refer the defendant, Grella reviewed the defen-
dant’s record and spoke with him on a number of occa-
sions to ascertain his needs and to select an appropriate
sex offender treatment program tailored to those needs,
with due regard, of course, for community safety.
Among other things, Grella learned that the defendant
had committed a violent sex offense as a juvenile13 and
that he had failed to complete sex offender treatment
deemed necessary in light of the offense. In addition,
Grella was aware that the defendant had reoffended
within days of his release on parole two years earlier
despite his having completed a sex offender treatment
program in prison. Furthermore, the defendant himself
believed that he had not been afforded adequate super-
vision and guidance following his release on parole and
that he needed additional support in order to overcome
his admitted addiction to child pornography and to
avoid offending again. Based on her eight years of expe-
rience as a probation officer, Grella reasonably con-
cluded that the center’s intensive program of individual
and group therapy, administered in the structured envi-
ronment of a residential facility and coupled with the
housing and employment assistance offered by the cen-
ter at the time of the defendant’s discharge from the
center, was likely to afford the defendant his best oppor-
tunity to successfully address his child pornography
addiction. It also was reasonable for Grella to conclude
that, because the defendant presented a high risk of
reoffending, legitimate law enforcement interests
would best be served by placing the defendant at a
restrictive facility like the center. Cf. State v. Crouch,
105 Conn. App. 693, 701–702, 939 A.2d 632 (2008)
(rejecting defendant’s claim that requiring sex offender
treatment as condition of probation violated his right
to due process because facts of his underlying convic-
tion of risk of injury to child suggested that sex offender
evaluation and treatment were conditions of probation
that were ‘‘reasonably related to the defendant’s refor-
mation’’ and to ‘‘the legitimate purpose of law enforce-
ment in rehabilitating him and in protecting the
community’’).
The defendant asserts that, because a less restrictive
sex offender treatment program would have sufficed
to accomplish probation’s dual goals of rehabilitation
and public safety, the Office of Adult Probation was
obligated to have selected such a program for him. As
a general rule, the beneficial rehabilitative purpose of
probation will be best served when the probationer is
afforded the opportunity to succeed under conditions
that do not limit or restrict his liberty to a greater extent
than necessary to accomplish that end. Probationary
conditions, however, must also account for the commu-
nity’s legitimate safety concerns. Thus, we will not sec-
ond-guess the imposition of probationary conditions,
as long as they may be justified as reasonably necessary
to accomplish the purposes of probation. Cf. State v.
Faraday, supra, 268 Conn. 180–82 (probation officer is
responsible for determining conditions that will assist
probationer in achieving positive change in behavior).
As we previously stated, we must afford the probation
officer such flexibility because of the many variables
involved in the determination of what set of conditions
is best suited to a particular probationer. See State v.
Misiorski, 250 Conn. 280, 287–88, 738 A.2d 595 (1999).
Because Grella reasonably concluded that the defen-
dant’s placement at the center was the best, most appro-
priate option under the circumstances—not despite the
restrictive conditions there but because of them—that
probationary condition did not offend principles of
due process.
The defendant next claims that subjecting him to the
highly restrictive conditions at the center violated his
right to equal protection because he was placed there
due to his status as a homeless person. We need not
consider the substantive issue raised by the defendant’s
claim, that is, whether the right to equal protection bars
the placement of a probationer at the center on the
basis of his or her homelessness, because his claim
founders on the trial court’s factual finding—fully sup-
ported by the record—that he was not referred there
for that reason. Moreover, it is difficult to see how the
defendant could fairly be characterized as homeless in
view of the fact that his mother had secured housing
for him upon his release from prison. Because the defen-
dant’s equal protection claim is belied by the record,
the claim fails.
The defendant finally argues that the condition of
probation requiring him to attend sex offender treat-
ment at the center violated his eighth amendment right
against cruel and unusual punishment because assign-
ing him to the most restrictive treatment facility in the
state was grossly disproportionate given his back-
ground and offense history.14 The defendant cannot pre-
vail on this claim because of our determination,
explained in connection with our rejection of his due
process claim, that his placement at the center was
reasonably related to the purposes of probation: a con-
dition of probation that is reasonably necessary to
accomplish the legitimate goals of probation cannot
be unduly harsh. Accordingly, the defendant’s eighth
amendment claim also lacks merit.15
The judgment is affirmed.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
** January 7, 2021, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
General Statutes § 53a-196e provides in relevant part: ‘‘(a) A person is
guilty of possessing child pornography in the second degree when such
person knowingly possesses (1) twenty or more but fewer than fifty visual
depictions of child pornography . . . .’’
2
The defendant would prop open the door to his room during required
therapy sessions, even though the door was supposed to be closed and
locked at that time so as to render the room inaccessible to him during
such sessions.
3
The due process clause of the fourteenth amendment to the United
States constitution provides in relevant part: ‘‘No State shall . . . deprive
any person of life, liberty or property, without due process of law . . . .’’
U.S. Const., amend. XIV, § 1.
4
The equal protection clause of the fourteenth amendment to the United
States constitution provides in relevant part: ‘‘No State shall make or enforce
any law which shall . . . deny to any person within its jurisdiction the equal
protection of the laws.’’ U.S. Const., amend XIV, § 1.
5
The eighth amendment to the United States constitution provides:
‘‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.’’ U.S. Const., amend. VIII.
The eighth amendment’s prohibition against cruel and unusual punishment
is made applicable to the states through the due process clause of the
fourteenth amendment to the United States constitution. See, e.g., Tuilaepa
v. California, 512 U.S. 967, 970, 114 S. Ct. 2630, 129 L. Ed. 2d 750 (1994).
6
Several other claims that the defendant raised in the trial court are not
the subject of this appeal.
7
Unless otherwise noted, all references hereinafter to the trial court are
to Judge Danaher.
8
The defendant appealed to the Appellate Court from the judgment of
the trial court, and we transferred the appeal to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-1.
9
General Statutes § 53a-30 provides in relevant part: ‘‘(a) When imposing
sentence of probation or conditional discharge, the court may, as a condition
of the sentence, order that the defendant . . . (17) satisfy any other condi-
tions reasonably related to the defendant’s rehabilitation. . . .
(b) When a defendant has been sentenced to a period of probation, the
Court Support Services Division may require that the defendant comply
with any or all conditions which the court could have imposed under subsec-
tion (a) of this section which are not inconsistent with any condition actually
imposed by the court. . . .’’
10
As the defendant acknowledges, the term ‘‘incarceration’’ is not defined
in our statutes, and neither he nor the state has advocated for a particular
definition of the term. For present purposes, therefore, we, like the parties,
use the term in accordance with its commonly understood meaning, namely,
involuntary confinement in a jail or a prison. See Magee v. Commissioner
of Correction, 105 Conn. App. 210, 215, 937 A.2d 72 (imprisonment ‘‘com-
monly and primarily refers to a condition of physical confinement, usually
by means of coercion, in a prison’’), cert. denied, 286 Conn. 901, 943 A.2d
1102 (2008).
11
Although situated on the grounds of a correctional institution, it is
undisputed that the defendant was not in the custody of the Commissioner
of Correction while he resided at the center.
12
The defendant also makes brief reference to an additional alleged due
process violation, namely, that he did not receive adequate notice at the
time of his plea and sentencing that he could be placed at a facility as
restrictive as the center. The trial court rejected this claim and, to the extent
that the defendant has renewed that claim on appeal, so do we. As we
explained, at the plea hearing, the court, Ginocchio, J., advised the defendant
that his probation officer likely would impose ‘‘many other conditions,’’
including sex offender evaluation and treatment, that the officer reasonably
believed were appropriate in light of the nature of his offense. Additionally,
at the time of sentencing, the court ordered as a special condition of proba-
tion that the defendant complete ‘‘sex offender evaluation and treatment
through [an approved] provider’’ and that he ‘‘[c]omply with all recom-
mended sex offender conditions of probation as deemed appropriate by the
supervising [probation] officer.’’ Furthermore, under § 53a-30, a probation
officer has broad discretion to impose reasonable probationary conditions
and, if warranted, to require that a probationer participate in a sex offender
treatment program at a residential facility like the center, which, as the
trial court expressly found, ‘‘provide[s] community based treatment for the
treatment of sex offenders.’’ Finally, the defendant himself recognized that
he needed an intensive and structured treatment program if he was to
successfully address his addiction to child pornography and to avoid reof-
fending. As we explain more fully hereinafter, in light of the defendant’s
addiction and his offense history and likelihood of recidivism, his placement
at the center fell squarely within the discretion afforded his probation officer
to impose such conditions. Consequently, the defendant’s claim that he was
not on notice that he could be placed at a residential facility like the center
is devoid of merit.
13
We disagree with the defendant’s contention that it was improper for
Grella to have considered his violent sex offense as a juvenile in referring
the defendant to the center. Although at least one court has held that a
probationary condition may not be predicated solely on a juvenile conviction;
see United States v. Worley, 685 F.3d 404, 408–409 (4th Cir. 2012); in the
present case, the defendant’s juvenile record was only one of a number of
considerations that led Grella to conclude that the defendant should be
placed at the center. The fact that the defendant had committed a violent
sex offense as a juvenile, and then failed to complete sex offender treatment
following that offense, was certainly relevant to Grella’s determination as
to the appropriate conditions of probation, and we see no reason why Grella
was prohibited from factoring that information into her decision.
14
The defendant apparently did not raise this argument in the trial court
in support of his eighth amendment claim; he maintained, rather, that it
constituted cruel and unusual punishment to place him at the center due
to his homelessness. We see no reason, however, not to address the merits
of the eighth amendment argument he now makes in this court.
15
In his reply brief, the defendant concedes that, under the circumstances
presented, an adverse decision on his due process claim also would require
an adverse decision on his eighth amendment claim.