State v. Davis , 186 Conn. App. 385 ( 2018 )

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STATE OF CONNECTICUT v. FREDERICK M. DAVIS
(AC 40694)
Sheldon, Elgo and Beach, Js.
Syllabus
The defendant appealed to this court from the judgment of the trial court
revoking his probation and sentencing him to a term of nine years
incarceration in connection with his failure to complete required sub-
stance abuse and mental health treatment, and after he tested positive
for cocaine and marijuana, and was arrested on multiple drug related
charges. A hearing was held before the Superior Court in Norwalk during
which a public defender indicated to the court that she represented the
defendant and that the defendant’s case was going to be transferred to
the Superior Court in Bridgeport. The prosecutor did not voice any
disagreement with the public defender’s representation, and the trial
court ordered the transfer of the case to the Bridgeport Superior Court.
Subsequently, the defendant filed a motion to dismiss the violation of
probation action for lack of jurisdiction, claiming that the trial court
improperly transferred the matter in contravention of the rule of practice
(§ 41-23 [2]) that permits the judicial authority to order that any pending
criminal matter be transferred to any other court location if the defen-
dant and the prosecuting authority consent. After the trial court denied
the motion to dismiss, a hearing on the violation of probation charge
was held. At the conclusion of the adjudicatory phase of the proceeding,
the court found, by a fair preponderance of the evidence, that the defen-
dant had violated the terms of his probation. The defendant thereafter
requested a continuance of the dispositional phase of the probation
revocation proceeding until all pending criminal matters against him
were resolved to protect his right of allocution, and the trial court
continued the matter for two weeks, but denied his subsequent request
for another continuance. At the conclusion of the dispositional phase
of the proceeding, the trial court found that the beneficial aspects of
rehabilitation no longer were being served by probation and, accord-
ingly, revoked the defendant’s probation. Held:
1. The defendant could not prevail on his claim that the trial court improperly
denied his motion to dismiss for lack of jurisdiction due to the allegedly
improper transfer of the case to the Bridgeport Superior Court: the
defendant’s claim that the Bridgeport Superior Court lacked jurisdiction
over his probation revocation proceeding was essentially an objection
to venue rather than to jurisdiction, and because a claim of improper
venue is procedural in nature, the defendant’s claim was untenable;
moreover, the trial court did not abuse its discretion in granting the
public defender’s transfer request, as the transcript of the subject hearing
made clear that the state and the defendant had agreed to the transfer,
which belied the defendant’s claim that the transfer contravened § 41-23.
2. The defendant’s unpreserved claim that the trial court violated his constitu-
tional right to be present at a critical stage of the probation revocation
proceeding failed under the forth prong of State v. Golding (213 Conn.
233), the state having demonstrated the harmlessness of any error
beyond a reasonable doubt: the defendant’s claim that his ability to
defend against the violation of probation charge was adversely affected
by his absence from the hearing on the change of venue was unavailing,
because although the defendant asserted that he could have made a
meaningful contribution to the proceedings by stating his objection as
to whether to transfer the case to the Bridgeport Superior Court, he
did not identify any objection that he would have raised and no such
objection was articulated in either the pleadings or the transcripts before
this court, and, therefore, the possible basis of his purported objection
was speculative; moreover, the defendant did not claim that he was
denied a fair and impartial hearing before the Bridgeport Superior Court,
and the record indicated that he resided in Bridgeport, that the criminal
offenses detailed in the violation of probation arrest warrant application
all transpired in Bridgeport, that three members of the Bridgeport Police
Department provided detailed testimony at the probation revocation
proceeding about the events that gave rise to the defendant’s arrest for
multiple drug related felonies and that the defendant’s probation officer
testified as to the defendant’s failure to complete substance abuse and
mental health treatment and his failed urinalysis test, and there was
nothing to suggest that if the probation revocation proceeding had been
conducted in the Norwalk Superior Court, the state would have been
incapable of offering the same witnesses and evidence and, conse-
quently, of meeting its burden of proof.
3. The defendant could not prevail on his claim that the trial court improperly
denied his request for a continuance of the dispositional phase of the
probation revocation proceeding until all pending criminal matters were
resolved to protect his right of allocution; in light of the state’s stipulation
at the probation revocation proceeding that any statements made by
the defendant during allocution would not be used against him in his
pending criminal proceedings and the trial court’s representation to
that effect, and that the defendant could enforce the agreement, the
defendant’s claim was controlled by State v. Blake (289 Conn. 586), in
which our Supreme Court concluded that in light of a similar stipulation
made by the state and the trial court’s representation, there was nothing
to suggest that the defendant was not provided a full and fair opportunity
to exercise his right to allocution.
Argued October 17—officially released December 4, 2018
Procedural History
Information charging the defendant with violation of
probation, brought to the Superior Court in the judicial
district of Stamford-Norwalk, geographical area num-
ber twenty, and transferred to the judicial district of
Fairfield, geographical area number two, where the mat-
ter was tried to the court, Holden, J.; thereafter the court
denied the defendant’s motion to dismiss; judgment
revoking the defendant’s probation, from which the
defendant appealed to this court. Affirmed.
Robert J. McKay, assigned counsel, for the appel-
lant (defendant).
Brett R. Aiello, special deputy assistant state’s attor-
ney, with whom, on the brief, were John C. Smriga,
state’s attorney, and Richard Palombo, senior assistant
state’s attorney, for the appellee (state).
Opinion
ELGO, J. The defendant, Frederick M. Davis, appeals
from the judgment of the trial court revoking his proba-
tion and committing him to the custody of the Commis-
sioner of Correction for nine years. On appeal, the
defendant claims that the court (1) improperly denied
his motion to dismiss predicated on an alleged lack of
jurisdiction, (2) violated his constitutional right to be
present at a critical stage of the probation revocation
proceeding, and (3) improperly denied his request for
a continuance. We affirm the judgment of the trial court.
On May 26, 2016, the defendant pleaded guilty to
possession of narcotics with intent to sell in violation
of General Statutes § 21a-277 (a). The court sentenced
the defendant to a term of twelve years incarceration,
execution suspended, with five years of probation. The
conditions of his probation required, inter alia, that the
defendant ‘‘not violate any criminal law of the United
States, this state or any other state or territory,’’ that
he submit to random urinalysis, and that he obtain sub-
stance abuse and mental health treatment.
Following the commencement of his probationary
period, the defendant was referred to Connecticut
Renaissance by his probation officer, Matthew A. Maior-
ano, for a substance abuse and mental health evalua-
tion. When the defendant repeatedly failed to report
for scheduled appointments, he was discharged from
that treatment center. Maiorano also performed a uri-
nalysis on the defendant in August, 2016, which tested
positive for cocaine and marijuana. In addition, the
defendant was arrested on August 15, 2016, and charged
with multiple drug related felonies, including posses-
sion of narcotics with intent to sell by a person who
is not drug-dependent in violation of General Statutes
§ 21a-278 (b) and sale of narcotics in violation of § 21a-
277 (a).1
In response, Maiorano filed an arrest warrant applica-
tion for the defendant’s violation of the terms of his
probation. In an accompanying affidavit, Maiorano
alleged that the defendant’s ‘‘continued negative behav-
iors, polysubstance abuse and continued narcotics traf-
ficking indicate that the beneficial purposes for which
[he] was initially placed on [p]robation . . . are no
longer being served.’’ The state then filed an information
alleging that the defendant had breached the terms of
his probation in violation of General Statutes § 53a-32.
On January 17, 2017, a hearing was held before the
Norwalk Superior Court. When the matter was called,
Attorney M. Elizabeth Reid from the Office of the Public
Defender first indicated that she represented the defen-
dant. After a brief colloquy with the court, she then
stated: ‘‘Judge, as much as I’d love to represent [the
defendant] here, this matter is actually going to be trans-
ferred to [geographical area number two] in Bridgeport
for February [14, 2017].’’ The court at that time trans-
ferred the matter to the Bridgeport Superior Court.
On April 19, 2017, the defendant filed a motion to
dismiss the violation of probation action for lack of
jurisdiction ‘‘over the defendant or the subject matter.’’
In that motion, the defendant claimed that the court
improperly transferred the matter from the Norwalk
Superior Court to the Bridgeport Superior Court, in
contravention of Practice Book § 41-23.2 He filed a sup-
plement to that motion a week later, in which he argued
that a probation revocation proceeding is a criminal
matter. The court heard argument from the parties on
that motion, in which the defendant’s new public
defender in Bridgeport maintained that the Bridgeport
Superior Court lacked jurisdiction over the probation
revocation proceeding due to the allegedly improper
transfer. The court thereafter denied the motion to
dismiss.
The defendant rejected a plea offer from the state
and a hearing on the violation of probation charge com-
menced on April 27, 2017. At that hearing, Maiorano
testified as to the defendant’s noncompliance with the
terms of his probation. In addition, the state presented
the testimony of three members of the Bridgeport Police
Department who were involved in the August 15, 2016
arrest of the defendant; see footnote 1 of this opinion;
which testimony the court expressly credited. When
the adjudicatory phase of that proceeding concluded,
the court found, by a fair preponderance of the evi-
dence, that the defendant had violated the terms of his
probation in multiple respects.3
Defense counsel then requested a continuance of the
dispositional phase of the probation revocation pro-
ceeding until all pending criminal matters were resolved
‘‘due to [the defendant’s] right of allocution’’ as codified
in Practice Book § 43-10. After hearing initial arguments
from the parties on that request, the court continued
the matter approximately two weeks. When the parties
again appeared before the court on May 12, 2017, the
court heard further arguments on the defendant’s con-
tinuance request, which it then denied. At the conclu-
sion of the dispositional phase of the proceeding, the
court found that the beneficial aspects of rehabilitation
no longer were being served by probation. The court,
therefore, revoked the defendant’s probation and sen-
tenced him to a term of nine years incarceration. This
appeal followed.
I
The defendant claims that the court improperly
denied his motion to dismiss this violation of probation
action for lack of jurisdiction due to the allegedly
improper transfer of the matter to the Bridgeport Supe-
rior Court. For two distinct reasons, we disagree.
First, the defendant has provided no authority to sup-
port his bald assertion that the allegedly improper trans-
fer of his case presents a jurisdictional issue. To
paraphrase the observation of our Supreme Court in
Savage v. Aronson, 214 Conn. 256, 263, 571 A.2d 696
(1990), the defendant’s claim that his case was not prop-
erly before the Bridgeport Superior Court ‘‘is essentially
an objection to venue rather than to jurisdiction,
because it does not implicate the authority of the Supe-
rior Court to entertain the case but involves only the
question of whether one [geographical area] of that
court rather than another properly should have heard’’
his probation revocation proceeding. ‘‘Venue simply
concerns the location where the matter may be tried’’;
In re Shonna K., 77 Conn. App. 246, 256, 822 A.2d
1009 (2003); and ‘‘is not a jurisdictional question but a
procedural one.’’ (Internal quotation marks omitted.)
Savage v. Aronson, supra, 263; see also State v. Kelley,
206 Conn. 323, 332, 537 A.2d 483 (1988) (noting that
‘‘venue, unlike subject matter jurisdiction, can be
waived by the parties’’ because ‘‘venue is not a jurisdic-
tional but a procedural question’’). Because a claim of
improper venue is procedural in nature, the defendant’s
claim that the Bridgeport Superior Court lacked juris-
diction over his probation revocation proceeding is
untenable.
Second, the transcript of the January 17, 2017 hearing
belies the defendant’s claim that the transfer in question
contravened Practice Book § 41-23. That one page tran-
script states:
‘‘[The Prosecutor]: Frederick Davis.
‘‘The Clerk: 105.
‘‘[Defense Counsel]: Liz Reid for [the defendant],
Judge. He’s present. He was the sleepy person in the
courtroom.
‘‘The Court: I excused him to the hallway. I’m sorry
I could not keep him awake.
‘‘[Defense Counsel]: It’s not—
‘‘The Court: I know that I’m a very boring person.
‘‘[Defense Counsel]: It wasn’t for the riveting discus-
sion that was going on here, Judge.
‘‘The Court: Well, the snoring was a tad too much.4
‘‘[Defense Counsel]: Judge, as much as I’d love to
represent [the defendant] here, this matter is actually
going to be transferred to [geographical area number
two] in Bridgeport for February [14, 2017].
‘‘The Court: Okay. G.A. two, Bridgeport, for Febru-
ary 14.
‘‘[Defense Counsel]: Thank you.’’ (Footnote added.)
The decision to grant a change of venue request is
entrusted to the discretion of the trial court. State v.
Reynolds, 264 Conn. 1, 222, 836 A.2d 224 (2003), cert.
denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d
254 (2004). Pursuant to Practice Book § 41-23 (2), the
judicial authority ‘‘may order that any pending criminal
matter be transferred to any other court location . . .
[i]f the defendant and the prosecuting authority consent
. . . .’’ At the outset of the January 17, 2017 hearing,
the public defender indicated that she represented the
defendant. She then apprised the court that ‘‘this matter
is actually going to be transferred’’ to the Bridgeport
Superior Court. The prosecutor, who was present at that
time, voiced no disagreement with that representation,
and the court thereafter ordered the transfer of the case
in accordance therewith. In denying the defendant’s
motion to dismiss, the court concluded that the tran-
script was ‘‘clear’’ that the state and the defendant had
agreed to that transfer. We agree. On our review of the
record, we conclude that the court did not abuse its
discretion in granting the transfer request submitted by
defense counsel. For that reason, the trial court prop-
erly denied the defendant’s subsequent motion to
dismiss.
II
The defendant also claims that the court violated his
constitutional right to be present at a critical stage of
the probation revocation proceeding.5 Because he did
not preserve that claim at trial, the defendant must
resort to the familiar rubric of Golding review, under
which ‘‘[a] defendant can prevail on a claim of constitu-
tional error not preserved at trial only if all of the
following conditions are met: (1) the record is adequate
to review the alleged claim of error; (2) the claim is
of constitutional magnitude alleging the violation of a
fundamental right; (3) the alleged constitutional viola-
tion . . . exists and . . . deprived the defendant of a
fair trial; and (4) if subject to harmless error analysis,
the state has failed to demonstrate harmlessness of the
alleged constitutional violation beyond a reasonable
doubt. In the absence of any one of these conditions,
the defendant’s claim will fail. The appellate tribunal
is free, therefore, to respond to the defendant’s claim
by focusing on whichever condition is most relevant in
the particular circumstances.’’ (Emphasis in original.)
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823
(1989), as modified by In re Yasiel R., 317 Conn. 773,
781, 120 A.3d 1188 (2015). We conclude that the defen-
dant’s claim fails Golding’s fourth prong.
‘‘[A] criminal defendant has a constitutional right to
be present at all critical stages of his or her prosecution.
. . . Although the constitutional right to be present is
rooted to a large extent in the confrontation clause of
the sixth amendment, courts have recognized that this
right is protected by the due process clause in situations
when the defendant is not actually confronting wit-
nesses or evidence against him.’’ (Internal quotation
marks omitted.) State v. Campbell, 328 Conn. 444, 467,
180 A.3d 882 (2018). Under established law, a critical
stage is ‘‘a step of a criminal proceeding . . . that
[holds] significant consequences for the accused.’’ Bell
v. Cone, 535 U.S. 685, 695–96, 122 S. Ct. 1843, 152 L.
Ed. 2d 914 (2002).
On appeal, the state submits that the January 17, 2017
hearing on the change of venue was not a critical stage
of the defendant’s probation revocation proceeding. We
need not resolve that question of constitutional dimen-
sion because we conclude that the state has demon-
strated the harmlessness of any constitutional violation
beyond a reasonable doubt.
‘‘[A]n otherwise valid conviction should not be set
aside if the reviewing court may confidently say, on the
whole record, that the constitutional error was harm-
less beyond a reasonable doubt. . . . In evaluating
whether a denial of presence [from a critical stage of
the proceedings] is harmless, [w]e first determine
whether the defendant’s presence . . . would have
contributed to his ability to defend against the charges.
. . . We then consider the evidence presented at trial.’’
(Citations omitted; internal quotation marks omitted.)
State v. Ralph B., 162 Conn. App. 583, 604, 131 A.3d
1253 (2016).
On the undisputed facts of this case, we fail to per-
ceive how the defendant’s ability to defend against the
violation of probation charge was adversely affected
by his absence from the January 17, 2017 hearing on
the change of venue. In his appellate brief, the defendant
maintains that he ‘‘could have made a meaningful contri-
bution to the proceedings by stating his objection . . .
as to whether or not to transfer’’ the matter to the
Bridgeport Superior Court. Yet the defendant in his
appellate brief has not identified any objection that he
would have raised to the transfer proposed on the
record by his own legal counsel.6 Furthermore, no such
objection is articulated in either the pleadings or the
transcripts before us. We thus are left to speculation and
conjecture as to the possible basis of the defendant’s
purported objection, which ‘‘have no place in appellate
review.’’ (Internal quotation marks omitted.) State v.
Joseph, 174 Conn. App. 260, 274, 165 A.3d 241, cert.
denied, 327 Conn. 912, 170 A.3d 680 (2017).
In addition, the defendant does not claim that he was
denied a fair and impartial hearing before the Bridge-
port Superior Court. The record before us indicates
that the defendant resided in Bridgeport at all relevant
times.7 The criminal offenses detailed in the violation
of probation arrest warrant application all transpired
in Bridgeport and three members of the Bridgeport
Police Department testified as witnesses at the proba-
tion revocation proceeding. Those witnesses provided
detailed testimony about the events of August 15, 2016,
that gave rise to the defendant’s arrest for multiple
drug related felonies. In addition to offering testimony
regarding that arrest, the defendant’s probation officer
also testified as to the defendant’s failure to complete
substance abuse and mental health treatment and his
failed urinalysis test. In its appellate brief, the state
argues that there is ‘‘nothing to suggest that had the
violation of probation hearing been conducted in Nor-
walk, that the state would have been incapable of offer-
ing the same witnesses and evidence and, consequently,
[of] meeting its burden of proof . . . .’’ We agree and,
accordingly, conclude that the state has demonstrated
the harmlessness of any error beyond a reasonable
doubt.
III
As a final matter, we briefly address the defendant’s
contention that the court improperly denied his request
for a continuance of the dispositional phase of the pro-
bation revocation proceeding until all pending criminal
matters were resolved to protect his right of allocution.
His claim is identical to that raised in State v. Blake, 289
Conn. 586, 958 A.2d 1236 (2008). In Blake, the defendant
argued that the trial court violated his right to allocution
‘‘when it denied his request for a continuance of the
dispositional phase of the violation of probation hearing
to wait for a final resolution of the underlying criminal
charges.’’ Id., 588–89. The trial court in that case
responded to the defendant’s continuance request by
offering to enter an order that any statements made
by the defendant during allocution could not be used
against him in a subsequent criminal trial, and the state
then stipulated to that order. Id., 596. On appeal, our
Supreme Court concluded that, in light of ‘‘the state’s
stipulation and the court’s representation, there is noth-
ing to suggest that the defendant was not provided
a full and fair opportunity to exercise [his] right [of
allocution].’’ Id., 597–98. The court further emphasized
that, under the terms of that stipulation, ‘‘the defendant
would have had the right to hold the state to its promise
not to use his statements against him at trial.’’8 (Empha-
sis added.) Id., 597.
In the present case, Blake was discussed at length
during argument on the defendant’s continuance
request. After specifically referencing Blake, the prose-
cutor agreed ‘‘that anything [the defendant] says [during
allocution] which does inadvertently inculpate himself
would not—the state would not use that against him’’
in his pending criminal proceedings. In light of that
stipulation by the state, the court at the May 12, 2017
hearing noted ‘‘the offer by the state to agree that what-
ever [the defendant] says, should it touch on any matter
pending, [it] would not be used against him should he
go to trial’’ on the pending criminal matters. The court
then indicated that the defendant ‘‘has a right of allocu-
tion if he so desires. If he says anything that may impact
upon [his criminal] trial, the state has agreed not to
use it, and you can enforce that agreement.’’ At oral
argument before this court, defense counsel was asked,
given the state’s stipulation and the representation by
the trial court, whether he could distinguish Blake from
the present case; counsel conceded that he could not.
We agree that Blake controls the present case. The
defendant’s claim, therefore, fails.
The judgment is affirmed.
In this opinion the other judges concurred.
1
At the probation revocation proceeding, the state presented the testi-
mony of Officers Carlos Vazquez, Cody Remy, and Douglas Bepko of the
Bridgeport Police Department, who observed the conduct of the defendant
on August 15, 2016, that gave rise to those charges. On that date, the officers
were surveilling a Sunoco gas station as part of a violent crime initiative in
Bridgeport when the defendant engaged in what appeared to be a narcotics
transaction. During a search of the motor vehicle operated by the defendant,
the officers discovered a purse containing ‘‘three bundles of white glassine
envelopes’’ filled with heroin.
2
Practice Book § 41-23 provides: ‘‘Upon motion of the prosecuting author-
ity or the defendant, or upon its own motion, the judicial authority may order
that any pending criminal matter be transferred to any other court location:
‘‘(1) If the judicial authority is satisfied that a fair and impartial trial
cannot be had where the case is pending;
‘‘(2) If the defendant and the prosecuting authority consent; or
‘‘(3) Where the joint trial of informations is ordered pursuant to Section
41-19 and the cases are pending in different judicial districts or geographi-
cal areas.’’
3
The defendant in this appeal does not contest that determination.
4
The April 27, 2017 transcript reflects that the defendant also fell asleep
during his probation revocation hearing.
5
The defendant in this appeal has not identified any provision of our state
constitution nor asserted a claim thereunder. We therefore confine our
review to his claim under the federal constitution. See, e.g., State v. Skok,
318 Conn. 699, 701–702 n.3, 122 A.3d 608 (2015).
6
The defendant’s principal appellate brief contains two sentences of analy-
sis on this claim; he did not file a reply brief.
7
A Bridgeport address for the defendant is listed on both the arrest warrant
application and the information. At the violation of probation hearing, Maior-
ano testified that the defendant ‘‘was initially placed on probation . . . out
of [the] Norwalk [Superior] Court. [His probation] was then transferred
to [the] Bridgeport [Superior Court] because [the defendant] resided in
Bridgeport and that’s how supervision would work.’’
8
In analyzing the defendant’s claim, the court in Blake recognized that
‘‘certain fundamental precepts were in play,’’ including the applicability of
‘‘a defendant’s right to allocution . . . to the dispositional phase of a viola-
tion of probation proceeding.’’ State v. Blake, supra, 289 Conn. 595. The
court further emphasized that because ‘‘the right to allocution can be used
effectively to influence a judge’s discretion . . . the opportunity to allocate
must be meaningful.’’ Id., 597. Given those fundamental precepts, we pre-
sume that the court was referencing both direct and derivative use of such
allocution testimony when it concluded that the trial court resolved the
allocation issue ‘‘in a manner consistent with [the defendant’s] wishes.’’ Id.